41 Ind. 79 | Ind. | 1872
—This was an action by the appellees against the appellants to enjoin the collection of certain gravel road assessments upon the property of the plaintiffs, all th'e land within the specified distance from the road not being listed and returned. The cáse has once before been in this court,
The action was commenced on the 30th of October, 1869. On the 8th of December, 1868, the company applied to the board of commissioners for the appointment of assessors of benefits, etc., and such assessors were accordingly appointed, and they made their report to the auditor on the 16th of January, 1869. After the cause had gone back from this court,-viz., at the May term, 1871, of the court below, the defendants moved to reject the complaint, because it was verified before a notary public, who was one of the plaintiffs’ attorneys, and because it was not verified, as required by law, in this, that it was sworn to by one only of the plaintiffs. The motion was overruled, and the defendants excepted.
The defendants filed an answer, the second and third paragraphs of which set up new matter. Demurrers, for the want of sufficient facts were filed and sustained to the second and third paragraphs of the answer, and due exception taken. The general denial having been withdrawn, final judgment was rendered for the plaintiffs.
The questions arising upon the record i'elate to the ruling of the court in overruling the motion to set aside or reject the complaint on the ground stated, and to the ruling in sustaining the demurrers to the second and third paragraphs of the answer.
The complaint was sworn to by Robbins only, and not by the other plaintiffs who joined in the action. It is urged by counsel for the appellants that, inasmuch as the plaintiffs below were the several owners of the tracts of land in the complaint mentioned, on which several assessments had been made, although they might join in the action, yet the complaint should be verified by each of them. It seems to have been so held by the New York Superior Court. Gray v. Kendall, 5 Bosw. 666.
It is also urged that an oath administered to a party by his attorney in the cause in which the oath is administered,
We decide nothing upon either of these points, for the reason, that, in our opinion, the complaint, for the purpose of laying the foundation of a final judgment, was good without being verified at all.
The statute provides, that, “in all applications for an injunction, the complaint, or so much thereof as pertains to the acts or proceedings to be enjoined, shall be verified by affidavit. The injunction may be granted at the time of Commencing the action, or at any time afterward, before judgment in that proceeding.” 2 G. & H. 133, sec. 138. Taking this section of the statute in connection with the other provisions on the subject of injunctions, we think it clear that the verification is required only in cases where a restraining order or temporary injunction is sought before final judgment in the action, and that where the sole relief sought is: to be had in the final judgment of the coi^rt, no verification, is necessary. We see no good reason for requiring a verification where the remedy sought is the final judgment enjoining the act or acts complained of. If the defendant deny the facts, he puts the plaintiff upon the proof of them, before the court or jury, and such proof is not strengthened any by his previous verification of them. If the defendant, admit the facts, expressly or by.failing to controvert them,, the admission is not strengthened by such verification.
But where an injunction is sought pending the action, the facts must be verified. Until the facts have been admitted; or found by the court or jury, they are not established; and until the facts are established or sworn to, an injunction should not be granted. But where the only relief sought is. to be afforded by the final judgment of the court, inasmuch: as such judgment cannot be rendered-, until,the facts author
If the complaint is not duly verified, it is, doubtless, good ground for refusing a restraining order or temporary injunction pending the action, and perhaps ground for setting it aside where it has been unadvisedly granted; but it is no ground for rejecting or setting aside a complaint which asks an injunction as the final relief prayed for. There was, therefore, no error in the ruling in this respect.
The second paragraph of the answer alleged matter by way of estoppel, similar to that pleaded in the case of Hopkins v. The Greensburg, etc., Turnpike Co., 40 Ind. 44. No good purpose would be subserved by setting out the matter at large which is thus pleaded, as, in accordance with the case above cited, it does not constitute a valid estoppel. The demurrer to this paragraph was correctly sustained.
The third paragraph of the answer presents quite a different question. It is pleaded in bar of the action, except as to the costs which had then accrued therein; which means, we think, in bar of the further prosecution of the action. It alleges that the original assessment was made by the assessors as officers appointed by the board of commissioners, and not as agents or employees of the company, and that the company in no way connived at, consented to, or procured such assessors to omit to list, view, or assess any lands within the prescribed limits; that on the9th of March, 1871, the board of commissioners, of its own motion, ordered the original assessors to proceed, on the 21st of March, 1871, to view, list, and assess all lands, if any, omitted in their former assessment report; that the assessors proceeded, on the day named, to view, list, etc., and on the 13th day of April, 1871, they made their report to the auditor. Copies of the order of the board to the assessors, and of the report of the assessors, are set out. The amended assessment thus made
From this paragraph of the answer it sufficiently appears that, by the original assessment and the amendatory or supplemental one, all the lands within the prescribed limits have been listed and assessed. In determining the validity of the paragraph, several questions arise. One is, whether an amendment can be made at all. We are of opinion that it can. We see no good reason why it should not be done. Otherwise, the law would be, in a great measure, impracticable. If an amendment cannot be made, the casual omission in the list of some of the land within the prescribed distance from the road, would render it necessary to again go through the whole form of listing, viewing, and assessing the entire lands. This would be imposing an unnecessary burthen. If it is discovered that lands have been omitted in the list returned, we think the board of commissioners may, of their own motion, or at the instance of any one interested, reassemble the assessors, and require the proper correction to be made, and that it may be made accordingly, as was done in this case.
When the amendment is thus made, so that all the lands liable to be listed and assessed are included, does the entire assessment become valid? We are of opinion that it does. Indeed, this conclusion is involved in the proposition that an amendment can be made. The lands, under the act of 1867
Can the amendment be made- pending an action to enjoin the collection of assessments on the ground that part of the lands liable to the assessment had been omitted, so as to make such amendment available to defeat the further prosecution of such action? We are of opinion that this also may be done. We see no reason why such amendment may not be made as well pending such action as at any other time; and when made, if in time to make it available for
This case differs from that of Hardwick v. The Danville, etc., Gravel Road Co., 33 Ind. 321, where the amendment of the assessment seems to have been pleaded in bar of the entire action, and not of the further prosecution thereof.
But it is insisted by the appellees that inasmuch as the amendment of the assessment was made after the repeal of the act of 1867 by that of 1869, the proceeding was without authority and void. The section of the act of 1869 repealing the act of 1867 contains this proviso: “Provided, however, that all rights acquired, and all acts performed in pursuance of the provisions of the above mentioned act, are saved from the effect of this repealing clause, and all companies which have commenced proceedings under said act, may proceed according to the provisions of this act.”
By the act of 1867, a company having a subscription of eight hundred dollars per mile of the proposed road was authorized to make an assessment upon lands, as therein
We are of opinion that when the corporation, the appellant herein, became duly organized, and obtained a subscription of the eight hundred dollars per mile of the proposed road, and applied to the board of commissioners for the appointment of assessors of benefits, and when such assessors were appointed, the company had acquired the right to have a full and complete list and assessment returned by such assessors, and to have the assessment put upon the duplicate and collected in the manner specified. All these things had been done before the repeal of the act of 1867, except the making and return of a full and complete list and assessment. This, we think, under the proviso quoted, might be done after the repeal of the act of 1867, inasmuch as the company acquired the right before that time to have-it done, and was authorized toproceed under the act of 1869. Suppose, to illustrate, that previous to the repeal of the act of 1867, all the previous steps had been duly taken, assessors appointed, the land all duly listed, viewed, and assessed, the return made out and signed, but before the return was actually made to the auditor, the law was repealed, with the proviso quoted. It would seem to be clear that in such case the return could be made, and the assessment put upon the duplicate, and the necessary amount thereof collected. There is no material difference between the case supposed and that under consideration. The corporation had the right to have the assessment properly made on the state of facts that entitled her to it at the time the assessors were appointed to make it. She then had the necessary subscription, and could not, under
We are of opinion, for the foregoing reasons, that the court erred in sustaining the demurrer to the third paragraph of the answer.
The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.