179 Ind. 1 | Ind. | 1912
Appellee was the contractor for the improvement of an alley of appellant town, by paving it with concrete and cement. The work was duly accepted by the board of trustees of the town, and a final assessment roll for the cost was adopted and confirmed. This was an action by appellee to recover from the town the sum of certain assessments made against property owners and confirmed by the final approval of the assessment roll, which had been paid to the town. Appellant town unsuccessfully demurred to the complaint. It then answered in two paragraphs, the first of which was a general denial and the second alleged facts which showed, in substance, that appellee had not performed the work in accordance with the plans and specifications, but had fraudulently omitted one-half of the amount of the cement called for; that he had procured the adoption and- confirmation of the assessment roll by fraud and misrepresentation, and that the town had afterwards rescinded and set the same aside. Substantially these same facts were also pleaded in a cross-complaint, which prayed, as relief, that the acceptance of the work and the confirmation of the assessment roll be set aside. Appellee demurred to the second paragraph of answer and to the cross-complaint, and these demurrers were sustained. The issue
Section 8719 Burns 1908, Acts 1905 p. 219, §114, provides that the department of finance shall carefully keep a separate account of the fund arising from assessments for each particular improvement, and that the proceeds shall constitute a separate special fund for the payment of contractors for the particular work. Appellee’s action is obviously based on the statute and the contract is not the foundation of it in the sense that would make it necessary to make
The cause is reversed, with instructions to the lower court to overrule the demurrer to the cross-complaint of the town of Woodruff Place, and for further proceedings.
Note.—Reported in 100 N. E. 296. See, also, under (1) 28 Cyc. 1061; (3) 28 Cyc. 1054; (5) 23 Cyc. 917. As to tlie power of courts to vacate judgments, see notes in 52 Am. St. 795 ; 54 Am. St. 218; 60 Am. St. 633. As to the right of Intervention, see note in 15 Am. Dec. 162; 16 Am. Dec. 177.