109 Ind. 217 | Ind. | 1887
This suit was commenced in the Parke Circuit Court by appellee’s relator, as drainage commissioner of Parke county, to collect a balance alleged to be due on certain assessments, for the construction of a ditch or drain, by enforcing the statutory lien thereof on certain real estate particularly described, in such countj^, owned by appellant.
After the cause was put at issue, the venue thereof, on appellant’s motion, was changed to the court below. There, the issues joined were heard by the court, and a finding was made in favor of appellee’s relator, in the sum of $1,718.11, that, ■as drainage commissioner, he had a lien under the statute on the real estate described in his complaint to secure the payment of such sum of money, and that such lien ought to be foreclosed. Over appellant’s motion for a new trial, the court made and entered a decree in the relator’s favor, substantially .in accordance with its finding herein.
The relator’s complaint is challenged by appellant only by
In his complaint, appellee’s relator alleged that at the - term, 188-, of the Parke Circuit Court, Joseph J. Daniels, Aquilla Laverty and others, after due notice given of more than twenty days, filed their petition in such court asking an order for drainage, which petition upon proper showing was granted, and the drainage commissioners were ordered to view the proposed work, and make report thereof to such court; that such drainage commissioners made their report, which was favorable to such petitioners, and determined upon the method of drainage, and established the ter
And the relator averred that afterwards, to wit, on the — day of--, 188-, by publication in the “ Rockville Republican,” a weekly newspaper published in such county of Parke, such relator gave notice to appellant of his having been assessed, in the aggregate sum of $6,903.58, on his several tracts of land mentioned in such petition, as benefits by the construction of the work prayed for and ordered; that the relator also gave appellant notice in person, that, in thirty days from the dates of the notices so given, such relator would call on appellant for twenty per cent, of such sum, and, on each successive thirty days thereafter, would call on him for a like sum, until the whole amount should have been paid, and that he would give appellant notice of the times and places of such payments, in person or by written notice; that the relator also filed in the recorder’s office of such county of Parke his notice (whereof a copy was filed with and made a part of such complaint) of the lien of said several assessments against appellant’s tracts of land, situate in Parke county, and severally described as follows: (Description omitted.)
The relator further averred that he only in person gave such notices, and, in accordance therewith, called upon appellant at the stated times, after the lapse of thirty days, for the several percentage amounts, on such total assessments, as-they became due after such notices respectively, until he had, so called for the sum total of the original assessments; that, for the purpose of the completion of the work and to pay for the work completed, it was necessary that the balance of
In discussing the alleged insufficiency of the relator’s complaint, appellant’s counsel say: “ There is no averment in the complaint showing that, at the time of filing the original petition, a day was fixed and noted thereon for the docketing of the same; it does not show that twenty days’ notice of the filing of such petition, by posting up notices in three public places, in each township where the lands were situated, near the line of the proposed work, and one at the court-house door in the county wherein the lands are situated, had been given as the statute required. It does not show that three days’ time was given, after the docketing of the petition, for remonstrance. It does not show that the court, before which the petition was pending, found that notice of intention to present the petition had been given, as provided by statute. It is not shown that the court made an order, referring such petition to the drainage commissioners, or that the court fixed a time -and place for the meeting of such commissioners and a time when they should make their report. There is no allegation that the clerk delivered to such commissioners a copy of such petition and order, nor that they met at the time and place fixed by the court.”
“All these facts were necessary,” appellant’s counsel say, “in order to confer jurisdiction on the court ordering the improvement; and, in a proceeding to enforce a lien for such improvement, the complaint must show them, so that the trial court may know whether or not such court had jurisdiction.”
In support of their position, counsel cite and rely upon Scott v. Brackett, 89 Ind. 413, and it must be conceded that the ■opinion of the court in that case seemingly, at least, sane
In suits for the collection of drainage assessments, such as the case under consideration, all that the complaint of the plaintiff’s relator need state or show, of or concerning the original proceedings and judgment for the establishment of the ditch, are (1) that some notice was given of the filing of the petition for the ditch, (2) the filing of such petition, (3) the report of the commissioners of drainage of the benefits and damages assessed, and (4) that such report was approved and confirmed by the judgment of the court, and (5) a copy of the assessment against the defendant, in all cases, must be either set out in, or filed with and made part of, such complaint. In all these particulars, the relator’s complaint herein was amply sufficient in its averments to withstand a demurrer thereto for alleged want of facts, and was good beyond
Under the alleged error of the court, in overruling appellant's motion for a new trial, it is first insisted by his counsel that the finding of the court was not sustained by sufficient evidence. Without examining this subject in detail, we think we can safely say that there is evidence in the record, which fairly tends to sustain, and does sustain, the finding of the court on every material point, while there is an absolute dearth of evidence in conflict therewith. We can not disturb the finding or decree on the evidence. It was: fairly shown by the evidence, that the relator had fully complied with the requirements of the amended section 6, of theamendatory drainage act of March 8th, 1883. Acts of 1883,. p. 179. In the amended section 8, of such amendatory act, it is declared that “collections of assessments shall not be defeated by reason of any defect in the proceedings occurring prior to the judgment of the court confirming and establishing the assessment of benefits and injuries, but such judgment shall be conclusive that all prior proceedings were regular and according to law. Nor shall any person be permitted to take advantage of any error, defect, or informality, unless the person complaining thereof is directly affected thereby, at any stage of thé proceedings,'' etc. Acts of 1883, supra.
In the light of these statutory provisions, there is absolutely no evidence, in the record of this cause, which tends oven remotely to defeat the relator's right of recovery of the balance due of the benefits assessed against appellant’s lands.
Appellant also insists, that the court below erred in denying him a trial by jury of the issues joined in this cause. This question can not be regarded as an open one, in this-
In Anderson v. Caldwell, 91 Ind. 451 (46 Am. R. 613), it was held by this court upon full consideration, that this statutory provision for the trial of questions of fact, in drainage proceedings, by the court without a jury, is constitutional. Upon this point, the case cited has been approved and followed in our more recent decisions. Indianapolis, etc., G. R. Co. v. Christian, 93 Ind. 360; Ross v. Davis, 97 Ind. 79; Neff v. Reed, 98 Ind. 341; Drebert v. Trier, 106 Ind. 510.
Of course, this case is not a proceeding for the establishment of a ditch, but it is ancillary thereto, and seems to us to come fairly within the spirit and reason of the statutory provision for the trial of questions of fact by the court without a jury. The speedy hearing and decision of suits for the collection of assessments of benefits from the establishment and construction of the ditch are just as essential and important as the speedy hearing and decision of any question of fact arising in the proceedings. Besides, suits for the collection of ditch assessments, and the enforcement by foreclosure of the statutory lien thereof on the lands affected thereby, are, and always have been, and in the nature of things must be, suits of equitable cognizance, and, therefore, triable by the court, and not by a jury, under the provisions of our civil code. Section 409, R. S. 1881; Lake Erie, etc., R. W. Co. v. Griffin, 92 Ind. 487; Lake v. Lake, 99 Ind. 339; Lake Erie, etc., R. W. Co. v. Griffin, 107 Ind. 464.
Appellant’s counsel also complain of the decisions of the court below, in sustaining relator’s demurrers to the third and fourth paragraphs of answer herein. There was no error, we think, in either of these rulings. The third paragraph
Complaint is also made here, on behalf of appellant, of the ruling of the court below in striking out his so-called plea in abatement herein. After appellee’s motion to strike out .such plea in abatement was sustained by the court, the plea was not brought back into the record or made part thereof, either by a bill of exceptions or an order of court. Under our decisions, therefore, the ruling complained of is not so presented by the record of this cause, as that it, can be considered here. Berlin v. Oglesbee, 65 Ind. 308; Stott v. Smith, 70 Ind. 298; Dunn v. Tousey, 80 Ind. 288; Peck v. Board, etc., 87 Ind. 221.
Some other matters are complained of here on appellant’s behalf, none of which, however, would authorize a reversal ■of the judgment.
Upon the entire record of this cause, our conclusion is that the questions involved have been fully and fairly heard and correctly decided by the court below. In such a case, the statute requires that the judgment below, without regard to any defects of form, variances or imperfections in the record, .should be in all things affirmed. Section 658, R. S. 1881.
The judgment is affirmed, with costs.