68 Ind. 93 | Ind. | 1879
Complaint by the appellant, against the appellee, to collect the amount of an assessment against the lands of the appellee, for the benefit of the appellant.
Demurrer for want of facts overruled. Exceptions.
'Answer in seven paragraphs. 'Separate demurrers to fourth and fifth paragraphs, for want of facts, overruled. Exceptions. Issue ; trial by jury; verdict for appellee ; and, over a motion for a new trial, judgment on the verdict.
The following points are presented by the record, and discussed by the appellant in the brief of counsel:
1. The alleged error in overruling the demurrer to the fourth paragraph of answer.
This is not a sufficient answer. The complaint avers that the “ defendant is a member of the association, by virtue of having signed the original articles of association of the plaintiff.” In" a complaint by the association against one of its members, it is not necessary to set out the organization of the association, nor a description of the drain, nor the survey, nor the estimated costs. By the act of March 10th, 1873, 1 R. S. 1876, p. 424, sec. 21, on an appeal from the assessment to the circuit court, “ If the party thus appealing is not a member of the association, he may insist in such appeal upon any legal objection to the assessment, or any part of it; if he is a member of the association, he shall not be allowed to make any objection to the assessment, except such as relates to the amount of the same.” As the party against whom an. assessment is made, on such appeal, can make no defence to the assessment except such as goes to its amount, it would logically follow, that, when sued upon the assessment, he would be restricted to the same defence ; for it would be useless to restrict him to such defence, on appeal from the assessment, and afterwards allow him to set up any defence to the association of which he 'is a member, when sued to recover the amount of the assessments. Large v. The Keen’s Creek Draining Co., 30 Ind. 263; The Jordan Ditching, etc., Ass’n v. Wagoner, 33 Ind. 50; The Excelsior Draining Co. v. Brown, 38 Ind. 384; The Etchison Ditching Co. v. Busenback, 39 Ind. 362; Bannister v. The Grassy Fork Ditching Association, 52 Ind. 178.
2. The fifth paragraph of answer avers, that the plain
This paragraph does not allege facts, but conclusions from facts. It is not well pleaded, and, being pleaded by a member of the association, is insufficient; nor do we mean to say that it would be good if pleaded by a stranger.
8. At the trial, the court instructed the jury as follows:
“ Gentlemen of the jury : It is your duty, under the evidence, to return a verdict for the defendant.”
Such an instruction might be upheld if given in a case where there was no evidence at all before the jury, or where the evidence was all documentary or written, and of such a character as to require the court to give it a legal construction ; hut in this case, where the pleadings put in issue the existence of the assessment and the fact whether the defendant was a member of the association or not, the instruction was erroneous. We can not see what the views of the court below were, unless it held that the proceedings establishing the drain were void. We can not view them in that light.
The counsel for the appellee insist, in their brief, that the complaint is insufficient; but there is no assignment of error presenting the sufficiency of the complaint as a question for our consideration.
This case should be distinguished from the case of Swinney v. The Fort Wayne, Muncie and Cincinnati R. R. Co., 59 Ind. 205. In that case, the appellee sought to appi’opr’iate certain lauds of the appellant for railroad purposes, under section 15 of the act of May 11th, 1852, 1 R. S. 1876, p. 696, which provides, that, upon filing the
The judgment is reversed, at the costs of the appellee ; cause remanded, with instructions to sustain the motion for a new trial, and to sustain the demurrers to the fourth and fifth paragraphs of answer, and for further proceedings.