204 N.W. 135 | Mich. | 1925
Plaintiff owns four drain orders drawn on the fund of the Craner Creek drain, a three county drain, which were issued to one Lucas for bridge construction work done by him during the construction of the drain. The orders were presented for payment *364 when there was enough money in the fund to pay them and payment was refused on the advice of the prosecuting attorney. Plaintiffs sought to compel payment by mandamus. A township and several interested parties were permitted to intervene, and upon their application and that of defendants the case was transferred to the chancery side of the court and the interveners filed a cross-bill seeking to set aside the drain proceedings and restrain payment of the orders. From a decree for interveners and defendants, plaintiff appeals.
No question is raised as to the propriety of the transfer of the case, and we shall dispose of it as it comes to us as an equity case. The final order of determination was made November 10, 1920, and the cross-bill attacking the validity of the proceedings was filed October 22, 1923, long after the drain and bridges were fully constructed. The cross-bill did not allege any fraud but upon the trial some claim, was made that Mr. Lucas' bid was lower than the price fixed in the contract and that the yardage was not as large as he was paid for. We think neither claim is sustained on this record. It is here urged that the notice to interested parties provided for in section 4902, 1 Comp. Laws 1915, as amended (Comp. Laws Supp. 1922, § 4902), was not given. The record affirmatively shows publication and posting of the notice but is silent as to service on the interested parties. In the absence of any evidence we must assume that the officers did their duty.Collins v. City of Detroit,
The principal complaint against the regularity of the drain proceedings is that the survey and plans for the bridges were made by a surveyor who had not registered under the provisions of Act No. 334, Pub. Acts 1919, § 19 (Comp. Laws Supp. 1922, § 6897 [19]). The survey was made by Mr. Lucas, a surveyor of 20 years' experience; the plans for the bridges were also made by him; the expenditure exceeded $2,000. Some of the work in surveying and making the plans was done before and some after the act took effect. The orders here involved are not for the service of Mr. Lucas in making the plans and doing surveying so that In re Reidy's Estate,
The statute just cited provides for review of the proceedings by certiorari and says:
"If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity."
In Township of Clarence v. Dickinson,
The decree will be reversed and one here entered granting plaintiff the appropriate relief. Plaintiff will recover costs of both courts.
McDONALD, C.J., and CLARK, MOORE, STEERE, and WIEST, JJ., concurred. BIRD and SHARPE, JJ., did not sit.