178 Ind. 684 | Ind. | 1912
The city of Delphi entered into four separate contracts with appellant for the improvement of four streets of that city. The court-house square of Carroll county abuts on each one of the four streets. These were improved by appellant under the terms of the contract. Pour assessments were made against the property of the courthouse square, aggregating the sum of $8,788.58.
avers that among other lots and tracts of land abutting on said streets and assessed for said improvements, as aforesaid, the said common council of said city of Delphi then and there assessed upon and apportioned against, as its share and part of the costs and expense of such improvements, the certain tract and parcel of ground comprising the public square, or court-house square, which abuts on said streets in said city of Delphi, Carroll County, in the State of Indiana, and which said assessments against said public square, or court-house square, are in the words and figures following, to-wit:
Assessments against Carroll County, Indiana, court-house square:
Assessment Roll No. 1, Market Street, from north line of Main Street to south line of Franklin Street .....................................$1,816.16
Assessment Roll No. 2, Main Street, from west line of Market Street to west line of Union Street.. 2,560.52
Assessment Roll No. 3, Washington Street, from south line of alley between Front and Main Streets to south line of Franklin Street, except intersection of Main Street.................. 1,839.24
Assessment Roll No. 4, Franklin Street, from west line of Market Street to west line of Union Street ..................................... 2,572.66
Total amount of assessments...............$8,788.58
Appelleé, in the court below;-filed a motion to dismiss tbe cause for -lack of jurisdiction, because; it' is ¡averred,- ¡the complaint, on-the"'face thereof,«discloses that plaintiff had, before the bridging" o£! the action, filed-its1 claim-before-the board, which had allowed it in«part, which allowance1 had been paid to- and accepted by ‘the claimant, andp'ufter1 the
Appellee has assigned cross-errors, in which, among other things, it is averred that the lower court erred in overruling its demurrer to the complaint, and in overruling its motion to dismiss, and that the Carroll Circuit Court had no jurisdiction of the cause.
Appellee has also filed here its motion to dismiss this appeal, because, it is claimed, the complaint discloses the fact that the circuit court had no jurisdiction of the subject-matter of the action. It is the theory of appellee’s counsel that when appellant filed its claim against the board for $8,788.56, and the board allowed $7,000 on the claim, and appellant accepted and received payment of the amount allowed, it thereby waived its right further to litigate any question in relation to the amount of the claim that was rejected; and where the facts appear, as here, on the face of the complaint, the appeal should be dismissed.
It is thoroughly settled in this State, that in condemnation proceedings under our eminent domain act, the landowner cannot accept the award of the appraisers and afterward contest it on appeal to the circuit court. Baltimore, etc., R. Co. v. Johnson (1882), 84 Ind. 420; Holland v. Spell (1895), 144 Ind. 561, 42 N. E. 1014; Test v. Larsh (1881), 76 Ind. 452; Indianapolis Traction, etc., Co. v. Ripley (1911), 175 Ind. 103, 93 N. E. 546.
It is a rule of general acceptance, in other- jurisdictions, that where an auditing board of a municipal corporation allows a part of a claim and rejects the.balance,.the claimant, in accepting the amount-allowed-, although; less, than the sum claimed, thereby. .Waives-his--right, to litigate! in relation to the balance rejected Sharp v. City of Mauston (1896), 92 Wis. 629, 66 N. W. 803; Davey v. City of Big Rapids (1891), 85 Mich. 56, 48 N. W. 178; Perry v. Village of Cheboygan (1884), 55 Mich. 250, 21 N. W. 333; Callahan v. Mayor, etc. (1875), 6 Daly (N. Y.) 230; Callahan v. Mayor, etc. (1876), 66 N. Y. 656.; 28 Cyc. 1752. The above rule was recognized by this court in Butler v. Board, etc. (1912), 177 Ind. 440, 98 N. E. 185.
Note.—Reported in 98 N. E. 347; See, also, under (1) 2 Cyc. 652; (2, 5) 11 Cyc. 599; (3) 11 Cyc. 592; (4) 11 Cyc. 598. The question of. the.,right, of municipal,corporation, county or town authorities to reconsider action as to allowánee of claim is treated in a note in 21 L. R. A. (N. S.) 289.