181 Ind. 323 | Ind. | 1913
This was an action by appellee against appellant to foreclose a sewer assessment lien on appellant’s real estate in Hartford City. It is alleged in the complaint that the property was assessed in a certain sum for the construction of a sewer; that bonds were issued to the contractor, who sold and transferred the one in suit to appellee. There is a demand for the principal and interest due on the bond, for the value of appellee’s attorney’s fees, and a foreclosure of the assessment lien. Appellant’s demurrer to the complaint, for insufficient facts, was overruled, and the cause was tried on the issues formed by appellant’s answer of general denial. The court found the facts specially, and concluded therefrom that appellee was entitled to recover $323.75, and the further sum of $100 as the reasonable value of the plaintiff’s attorney’s services, and to a foreclosure of the lien. Appellant’s motion for a new trial was overruled.
The sewer in controversy was constructed under the act of 1901 (Acts 1901 p. 534, §3623a Burns 1901), commonly called the Artman Act, pursuant to a resolution of the common council of Hartford City, adopted in August, 1901. The bond here involved was issued in February, 1903, payable to bearer, and delivered to the contractor. Appellant asserts that the complaint is insufficient under either §3626a Burns 1901, Acts 1901 p. 363, or §8721 Burns 1908, Acts 1907 p. 550, §3, because it does not aver notice to appellant, prior to the commencement of the action, as required by each of said sections; also that the court’s conclusions of law are erroneous, because it was not found that such
Section 3626a Burns 1901, which is §1 of an act approved February 22, 1899, as amended in 1901 (Acts 1899 p. 88, Acts 1901 p. 363) provides that “No action shall be maintained for the enforcement of any lien, or assessment for any benefit accruing to real estate, * * * by construction of sewer, * * * unless it be shown to the court * * * that at least ten days before the commencement of such suit such owner * * * was notified of such assessment, including the amount thereof, * * * and where the same is payable. * * *” Section 3626b Burns 1901, which is §2 of the act approved February 22, 1899 (Acts 1899 p. 88), provides that attorney’s fees in such action shall not exceed the amount of the assessment, or unpaid fraction thereof. Section 8721 Burns 1908, supra, is §116 of the cities and towns act of 1905, as amended in 1907 (Acts 1905 p. 219; Acts 1907 p. 550, §3), and became a law March 12, 1907. It authorizes proceedings to enforce the liens of sewer and street improvement assessments, in courts of competent jurisdiction, but provides that “no such suit shall lie, or he filed [italics ours] unless and until the person owning the property * * * is served with fifteen days’ personal written notice. * * * And in no case shall attorney’s fees exceed fifty per centum of the amount of the delinquent installment or assessment or where the delinquent installment or assessment sued on exceeds fifty dollars, such attorney’s fees shall not exceed ten per centum on the first one hundred dollars, and five per centum on the excess thereof. * * * No action shall be maintained for such foreclosure which is not commenced within five years from the time of action accrued.” Section 116, of the act of 1905 (Acts 1905 p. 219) before the amendment of 1907, provided that in foreclosure suits against persons not electing to pay installments, a ten days’ notice, “before bringing suit to foreclose” should be given the owner. The
Appellant also claims that no cause of action is stated in the complaint because the contractor, to whom the bond was issued, is not a defendant, and the alleged transfer thereof to appellee, was not in writing; that §277 Burns 1908, §276 R. S. 1881, requires the assignor of a contract, under facts as here pleaded, to be made a party defendant. The question of such defect, if it existed cannot be presented by a demurrer for want of facts, and where, as here, the alleged defect appears on the face of the complaint, the question is waived by failure to demur for defect of parties. Carskaddon v. Pine (1900), 154 Ind. 410, 56 N. E. 844, and cases cited; Green v. McCord (1903), 30 Ind. App. 470, 66 N. E. 494, and cases cited. Other minor objections are urged against the complaint, but we hold the same sufficient to repel a demurrer for want of facts.
It is claimed there is no evidence to show that any benefits were assessed against the real estate described in the complaint, but a consideration of the second report of the city
Section 6, of the Artman Act (Acts 1901 p. 534, §3623f Burns 1901) provides that the assessment against each parcel of land shall be collected in ten equal annual installments. "When this action was commenced, appellant had paid no one of the first four installments and there was due thereon, in principal, interest and penalties, the sum of $413.45. The bond in suit was No. 4, in the series of bonds issued pursuant to said §6; it matured December 1, 1906, and, when suit was instituted there was due and unpaid thereon the sum of $323.75. Judgment for that amount was rendered, and for the further sum of $100 as attorney fees. It is insisted by appellant that installments of assessments Nos. 1, 2, and 3 are not applicable to the payment of bond No. 4, but on the other hand that they are applicable only to the payment of bonds Nos. 1, 2 and 3 respectively; that here there was no evidence that the first three bonds had been paid, and that consequently this judgment would not bar an action by the holder of one of the bonds Nos. 1, 2, or 3, from collecting from appellant the number of the assessment corresponding to such bond. The statute will not bear appellant’s construction. It does not contemplate that each installment of assessment must be applied, when collected, to the payment of the corresponding bond; on the contrary it provides (§6, supra) that on June 1 of each year the city treasurer shall ascertain the amount of assessments collected, applicable to the payment of bonds, and determine the particular bond, beginning with the lowest number, that shall be paid from the fund collected. The same section authorizes the payment at any time, of the entire assessment, or any installment thereof, provided that interest be paid to the maturity of the next installment. The payment of any installment operates as a discharge of the lien thereof, by the express
It is claimed the judgment is excessive to the extent of $100 because the statute authorizing the recovery of attorney fees violates the 14th amendment to the Federal Constitution, in that it deprives appellant of its property without due process of law, “and denies to it, the equal protection of the law” and because it violates §§12 and 23 of our Bill of Rights. The statute is not open to any of such objections. Shirk v. Hupp (1906), 167 Ind. 509, 78 N. E. 242, 79 N. E. 490; Pittsburgh, etc., R. Co. v. Fish (1902), 158 Ind. 525, 63 N. E. 454; Judy v. Thompson (1901), 156 Ind. 533, 60 N. E. 270; Macbeth Evans Glass Co. v. Amama (1911), 176 Ind. 1, 95 N. E. 228. It is also contended that the amount allowed for attorney fees is excessive under the provisions of §8721 Burns 1908, supra. This contention should prevail if that section governed, hut it has no application here. The Artmah law allowed reasonable fees, and §3626a, supra, did not limit the' amount recoverable except to prohibit a sum in excess of the amount of the debt.
Other objections are urged, but a consideration thereof induces the conclusion that no reversible error was committed. Judgment affirmed.
Note. — Reported in 103 N. E. 325. As to the validity of a statute providing for the recovery of attorney’s fees in an action for the collection of a special assessment, see Ann. Cas. 1912 A 692.