57 Ind. App. 33 | Ind. Ct. App. | 1914
Lead Opinion
This suit was begun by appellants to enjoin appellee as treasurer of Elkhart County, Indiana, from collecting certain drainage assessments levied against appel- • lants1 lands in a proceeding before the board of county commissioners of Elkhart County. The court sustained a demurrer to the complaint for insufficiency of the facts alleged to constitute a cause of action against the defendant entitling the plaintiffs to the relief prayed. The plaintiffs refused to plead over, prayed an appeal from, the judgment against them on the demurrer, and have assigned as error the sustaining of the demurrer to the complaint.
It is alleged in substance that plaintiffs George A. and Milton B. Larimer and one William T. B. Larimer, who is not a party to this suit, were and are the owners in fee simple, as tenants in common of certain real estate in Elk-hart County, Indiana, which real estate is particularly described. The complaint then avers in detail the filing of the drainage petition with the auditor of said county and the several steps in the proceedings up to and including the making of the assessment and placing the assessment against appellants’ lands on the tax duplicate for collection. It is then charged that at the time of the filing of said drainage petition and continuously thereafter, George A. Larimer was a nonresident of the State of Indiana and said Milton B. Larimer was a nonresident of said Elkhart County. Also that: “no notice of any kind or character was given to
the plaintiff George A. Larimer, nor to the plaintiff Milton B. Larimer, of the filing of said petition, or of the pendency
ing taken up this matter and finding the petition regular in form, and the bond being sufficient, and notice having been served on all landowners affected who are not joined in said petition, the court now orders the petition docketed. ’ ’ It is also averred that as to plaintiffs “said recital in said record is wholly false and untrue in every respect; that in truth and in fact no notice of any kind or character was served on these plaintiffs or on any of them.” The complaint contains the formal averments as to the proceedings to collect the assessments and alleges “irreparable loss” unless a restraining order is issued enjoining the defendant from proceeding to collect said assessments.
Appellants concede that the board of commissioners had jurisdiction of the subject-matter of the proceeding but contend that it did not acquire jurisdiction over the persons of appellants, because there was no notice to them as required by the statute in such proceedings, and that for want of such notice the proceeding is void.
In Weir v. State, ex rel. (1884), 96 Ind. 311, the court had under consideration questions involving the record of the board of county commissioners of Monroe County, and m holding that the recitals of the record could not be contradicted by parol evidence, said: “The court refused to permit the appellant to show that the commissioners did not hold a session on the first day of January, 1883. In this there was no error. The record introduced in evidence, recited that the board did meet and did hold an election on that day which resulted in the choice of the relator, and this record concluded the parties from attacking it in this collateral proceeding. A record can not be overthrown in a collateral attack of this nature.”
In Baltimore, etc., R. Co. v. Freeze (1907), 169 Ind. 370, 374, 82 N. E. 761, the Supreme Court in considering a question relating to a justice of the peace said: “Every court possesses the power of determining its own jurisdiction, both as to the parties and the subject-matter of the action. It is well settled that, when an inferior tribunal is required to ascertain and decide upon facts essential to its jurisdiction, its judgment thereon is conclusive against collateral attack, unless the want of jurisdiction is apparent on the face of the proceedings. A decision on a jurisdictional question, either expressly or impliedly given by a tribunal, has the same binding effect upon the parties as a decision on any other matter within its cognizance in any pending case or proceeding, and an error in this respect must be corrected in the same manner as other errors are authorized to be corrected. ’ ’
Rehearing
On Petition for Rehearing.
Appellants in their petition for a rehearing earnestly contend that the judgment should be reversed and base their contention on two propositions. (1) That the suit is a direct and not a collateral attack on the judgment of the board of commissioners. (2) That the allegations of the complaint that no notice was given or served on appellants make the complaint good and authorized parol proof to dispute the recitals of the record which show that due notice had been served on all landowners affected who had not joined as petitioners.
The original opinion mentions the fact that our decisions show considerable discrepancy of expression and some difference of opinion as to the conditions under which the want of jurisdiction of an inferior court may be shown by proof de hors the record.
The complaint in the case at bar pleads a part of the record which shows that the court passed on the jurisdictional facts and held them to be sufficient to give jurisdiction of the pending proceeding and of appellants. The averments which charge that the record is false and that appellants had no notice, are independent of the facts shown by the record, and are to be supported, if at all, by proof of facts de hors the record, for it can not be presumed in the absence of averments showing all, or other parts, of the record, that the parts not pleaded are contradictory of the part set out in the complaint. If instead of setting out only a portion of the record, appellants had set out the pleadings, notice, proof of service or any other part, or all, of the record or files of the ease, and from such record facts it appeared that the general finding of the court on the question of notice, or any other jurisdictional fact was made without any notice or without any showing of other facts essential to the court’s jurisdiction, a very different question would be presented. The complaint could have been made sufficient to withstand the demurrer, if the plaintiffs had set out in their complaint enough of the record to show that no notice of any kind had been given to appellants, or to any one to whom such notice under the drainage statute might be given so as to bind appellants.
The petition for rehearing is therefore overruled.
Note. — Reported in 103 N. B. 1102; 105 N. B. 936. As to what are collateral attacks upon judgments, see 23 Am. St. 104. Sec, also, under (1, 4) 14 Cyc. 1064; (2, 5) 11 Cyc. 389; (3) 23 Cyc. 1082; (0) 11 Cyc. 693; (7) 14 Cyc. 1043, 1064; (8) 11 Cyc. 691, 693; (10) 23 Cyc. 1088; (11) 23 Cyc. 959, 1088.