48 Ind. App. 488 | Ind. Ct. App. | 1911
Appellant brought this suit against appellee to foreclose a street assessment lien and for personal judgment. To the complaint a plea in abatement was filed, and a demurrer thereto was overruled. Appellant refused to plead further, and a judgment abating the suit was rendered in favor of appellee and against appellant for costs.
The improvement was made, the assessment was perfected, a waiver was filed, and improvement bonds were issued and delivered to the contractor, pursuant to an act of the General Assembly approved March 6, 1905 (Acts 1905 p. 219). The first instalment of the assessment was due and payable on June 1, 1908, and this suit was commenced July 22, 1908.
It is admitted that fifteen days’ personal written notice was not given to the delinquent before commencing this suit, as provided by an act of the General Assembly approved
omitted in the proceedings affecting the legality of the assessment (Dunkirk Land Co. v. Zehner [1905], 35 Ind. App. 694), and made him “responsible for any deficit of such cost and interest, after the sale of the lot on foreclosure of the lien.” Wayne County Sav. Bank v. Gas City Land Co. (1901), 156 Ind. 662. Prom the case last cited, it will be seen that appellee’s personal responsibility extends only to make good any deficit after applying the proceeds arising from a foreclosure sale of the lot. Therefore, if appellant must first subject the lot assessed to the payment of his demand, before subjecting any of the other property of appellee to sale for that purpose, it must necessarily follow that unless appellee has complied with the conditions precedent to bringing his suit to foreclose his lien, the suit not only for such foreclosure must abate, but likewise any suit for personal judgment.
Appellant has not complied with the provision of the statute requiring fifteen days’ notice to the owner of the property assessed. The demurrer to the plea in abatement was properly overruled.
Judgment affirmed.