Case v. Johnson
Citation | 91 Ind. 477 |
Decision Date | 26 November 1883 |
Docket Number | 10,193 |
Parties | Case et al. v. Johnson et al |
Court | Supreme Court of Indiana |
From the Tippecanoe Circuit Court.
The judgment is affirmed, with costs.
R. C Gregory, W. B. Gregory and F. B. Everett, for appellants.
J. R Coffroth, for appellees.
Howk C. J. Hammond, J., did not participate in the decision of this cause.
This case is now before this court for the second time. Case v. Johnson, 70 Ind. 31. On the former appeal it was held, by this court, on the authority of Case v. Fowler, 65 Ind. 29, that an instruction of the trial court was erroneous, and the judgment was reversed and the cause remanded for a new trial.
The suit was commenced by the appellees, seven in number, in the Benton Circuit Court, to enjoin the appellants, Case and Jones, from improving Fifth street, in the town of Fowler, in Benton county, under alleged contracts between them and the trustees of the town, for such improvement. The record shows that the town trustees, on the 18th day September, 1875, awarded the contract for four of the five sections of such street improvement to the appellant Case, and for the other section thereof to the appellant Jones; that, on September 20th, 1875, Case's written contract and bond for making such improvement were formally executed; that, four days afterwards, to wit, on September 24th, 1875, this suit was commenced; that, notwithstanding the institution and pendency of this suit, Case proceeded with the improvement of the sections of the street awarded to him; and that, on October 1st, 1875, one week after the institution of this suit, the town trustees rescinded their order awarding a section of the street improvement to the appellant Jones, and without any other or further notice awarded such section to the appellant Case, and ten days thereafter entered into a written contract with him therefor.
On the 16th day of November, 1875, the appellees filed, in the Benton Circuit Court, an amended complaint, wherein they alleged, among other things, that the appellant, the Town of Fowler, was an incorporated town organized under the general laws of this State, for the incorporation of towns; that the town board consisted of three trustees, of whom the appellant Jones was one, and the appellant Case was the assessor of such town.
Then follow averments that plaintiffs were each the owners of real estate which abuts upon said proposed improvement.
"That at all times, from the commencement of said proceedings until the commencement of this action, they protested against the same, and notified said defendants that they would not be bound by said proceedings, and would not pay any part of the cost of said proposed improvement." Wherefore, etc.
The cause was put at issue and submitted to the court for trial, and, at the request of the parties, the court made a special finding of the facts, and stated its conclusions of law thereon, in substance, as follows:
The following is a substantial statement of the facts found:
That said town of Fowler is, and was at the time...
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