Morrow v. Shober

19 Ind. App. 127 | Ind. Ct. App. | 1898

Henley, J.

— Action by appellee against John W. Utterback, Trustee of Coal Creek school township, of Montgomery county, Mary C. Ford and Coal Creek school township of Montgomery county, Indiana. The complaint in this cause is, omitting the formal part, in the following words and figures: “William H. Shober, plaintiff, complains of John W. Utterback, trustee of Coal Creek school township of the county of Montgomery, State of Indiana, Mary C. Cord and Coal Creek school township of Montgomery county, Indiana, defendants, and says: That heretofore, to wit, prior to the fourth day of September, 1893, one Daniel Curtis was duly appointed and qualified as superintendent for the construction of the ‘Isaac N. Miliarry Gravel Road/ in Montgomery county, State of Indiana, under and pursuant to an act of the General Assembly of the State of Indiana, approved April 8, 1885, and the acts amendatory thereof; that said superintendent, in discharge of his duty, let the contract for the. construction of said work; that as soon as said contract was let said superintendent duly assessed upon all the lands benefited by said improvement ratably upon the amount of benefits as confirmed and adjudged by the board of commissioners of said county, such sum as was necessary to pay for the work, and all costs and expenses accrued and to accrue, not exceeding the whole benefits adjudged upon any one tract; that on said date said superintendent duly executed certificates which certified the sum assessed against each tract of land respectively; that as a part of said assessment so made and certified by said superintendent for said improvement, he executed certificate number 216, in the name of, and as against Mary G. Ford et al., for the sum of nine and sixty hundredths dollars ($9.60), payable in six equal installments, with interest at the rate of six per centum per annum from date, and attorney’s fees, due in six, twelve, eighteen, twenty-four, thirty and thirty-six months from date, upon the following teal estate in the county of Montgomery, State of Indiana, to wit: lot number sixteen, in the original plat of the town of Wingate. That under and by said description it was intended to cover and embrace lot No. (16) sixteen as the same is known and designated on the original plat of the town of Pleasant Hill in Montgomery county, Indiana; that long after the filing of said plat the name of said town was, under and pursuant to the rules and regulations of the postal authorities of the government of the United States changed to Wingate, by which last name, said town has since the year 1886,beenknownanddesignated,and that saidlot No. 16 is the lot benefited by and assessed for the payment of said work, costs and expenses as above alleged; that said certificate and assessment thereby became and was a first, valid and subsisting lien on said real estate, and for priority thereof, relating back and binding said real estate from the time of the filing of the petition for said improvement, to wit, the-day —--- 1893; that, said superintendent in executing said certificate, in describing the real estate as above set out, described the same in an abbreviated form as follows: ‘Lot 16, O. P. Wingate.’ That said certificate is herewith filed, marked ‘exhibit A,’ and made a part of this complaint. That said superintendent duly issued and paid said certificate in consideration of labor performed upon said improvement; that the plaintiff is the owner and holder of said certificate; that no part thereof has ever been paid, although three installments thereof are long past due, and plaintiff has made demand for payment thereof; that by reason of the default in the payment of said installments at maturity, and of the demand made by the plaintiff the whole amount of said certificate and assessments' has become due and collectible, together with interest thereon at the rate of six per centum per annum from date and reasonable attorney’s fees, all of which is wholly unpaid. That there is now due the plaintiff on said assessment and certificate the sum of twelve dollars principal and interest, and the further sum of twenty-five dollars, reasonable attorney’s fees, upon which the plaintiff is entitled to judgment without any relief from valuation or appraisement laws, the foreclosure and enforcement of said lien and assessment, and the sale of said real estate to pay off and satisfy the same. That the defendants claim to Imve some interest in the subject-matter of this suit, to the plaintiff unknown, are made parties defendant herein, to answer as to their interest and to show cause if any they may have why the plaintiff should.not have judg.ment in the manner and form as prayed herein. Wherefore the plaintiff demands judgment for forty dollars, the foreclosure and enforcement of said lien and assessment, the sale of said real estate, to pay off and satisfy the same, and for all proper relief.”

A copy of the certificate of assessment and of the coupons attached thereto is filed with and made a part of the complaint. After the filing of the complaint, and before any further proceedings, were had in said cause it was made to appear that since the beginning of the action one Ebert M. Morrow' had succeeded John W. Utterback as trustee of Coal Creek school township and he was substituted as defendant in the place of Utterback. The complaint was not tested by demurrer in the lower court. Defendant Mary C. Ford appeared and filed an answer disclaiming any interest in the real estate sought to be affected by the action, and thus passed out of the case. Appellant Ebert M. Morrow, trustee, etc., appeared and filed his separate answer in one paragraph, which answer is as follows: “Comes now the defendant Ebert M. Morrow, trustee of Coal. Creek township, and for his separate answer to the complaint says, that since the bringing of this action, he has succeeded the defendant John W. Utterback, in the office of trustee of said township and that he is now duly qualified and'acting trustee of said township, and for answer to the plaintiff’s complaint he says, that about the year 1832, the said school township, by its duly qualified trustee, purchased of one John W. Cord, and said John W. Cord and his wife, now the defendant Mary C. Cord, executed to said school township a warranty deed for said lot for school purposes, and thereupon the said school township took possession of said lot for school purposes, under said deed during the year 1832, and 1833. The said school township erected on said lot a school house, for public school purposes, and paid for said house and said lot out of the public school funds, raised by taxation, and that ever since the said date, the said school township by its proper trustee was in possession of said house and said lot, and used the same for school purposes, and that therefore said lot was not subject to be assessed for the construction of said gravel road, and that such asssessment is void and created no lien on said lot. Wherefore he prays judgment for costs and all proper relief.”

A demurrer was filed to the answer and sustained. The appellant refusing to plead further, the court rendered the following judgment: “That the plaintiff ought to recover of the defendant Ebert M. Morrow as trustee the sum of twenty-five dollars and ninety-five cents of which amount the sum of fifteen dollars is for plaintiff’s attorney’s fees and that said sum is a lien upon the real estate hereinafter described. It is therefore considered and adjudged by the court that the plaintiff recover of and from the defendant Ebert M. Morrow as trustee of Coal Creek school township of Montgomery county, Indiana, the sum of twenty-five dollars and ninety-five cents together with the costs and charges herein laid out and expended, taxed at $-. It is further considered and adjudged by the court that said sum of twenty-five dollars and ninety-five cents is a lien upon the following described real a state in Montgomery county, State of Indiana, viz: Lot numbered sixteen (16) as the same is known and designated on the original plat of the town of Pleasant Hill. And it is further ordered that said defendant, Ebert M. Morrow, as trustee of said township, pay said judgment and the costs of this action out of any money in his hands liable for such expense and should there not be sufficient funds to pay said claim, in that event he is ordered to assess and collect an amount sufficient for said purpose.”

It will be observed that no answer was ever filed for Coal Creek school township and that if any judgment was rendered against that township the same is not appealed from. The assignment of errors in this court is entitled “Ebert M. Morrow Trustee of Coal Creek school township of Montgomery county, Indiana, vs. William H. Shober.” The errors assigned are:

“1. The complaint of appellee William H. Shober does not state facts sufficient to constitute a cause of action.

“2. The court erred in sustaining the demurrer to the answer'of appellant.”

The words “Trustee of Coal Creek school township” in every instance following the name of Ebert M. Morrow in the complaint, the answer and the judgment rendered by the court, and the assignment of errors, filed in this court, can only be regarded as. •desoriptio personae.

This cause was transferred to this court by the Supreme Court, in which court it was originally filed and docketed, its number there being 17936. The Supreme Court must necessarily have regarded this action as one for a money judgment, and for the foreclosure of a statutory lien, else this court would not have jurisdiction. As a complaint for a money judgment and the foreclosure of a statutory lien, it stated no cause of action against the appellant herein. If appellee is entitled to the relief given him in that part of the judgment of the lower court wherein the appellant is ordered and directed to pay the assessment, and if there is not enough money on hands with which to pay it to “assess and collect an amount sufficient to pay the same,” such a mandate could only be obtained-in an action over which this court has no jurisdiction. Coal Creek school township not being a party to the appeal, the question of whether the real estate of the school township could legally be assessed for the construction of the free gravel road is not presented by the record. For the reason that the complaint fails to state a cause of action against the appellant, the same will have to be reversed. The judgment is reversed.