Albertson v. State ex rel. Wells
| Decision Date | 14 May 1884 |
| Docket Number | 11,375 |
| Citation | 95 Ind. 370 |
| Parties | Albertson v. The State, ex rel. Wells |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
D Moss, R. R. Stephenson and H. A. Lee, for appellant.
J. A Roberts and T. E. Boyd, for appellee.
Appellee commenced this action to collect assessments alleged to be due on the construction of a certain ditch. A demurrer was sustained to the answer, and judgment rendered for the plaintiff.
Appellant has assigned error upon the sustaining of the demurrer to the answer, and insists that it should have been sustained to the complaint.
Five reasons are urged against the sufficiency of the complaint: First. It does not show that the original petition was verified.
This is not an appeal from the proceedings to establish the ditch, nor from a direct attack to set aside said proceedings, but from a collateral proceeding to collect assessments based upon the original proceedings; which proceedings, if not shown to be void, are conclusive in this proceeding. The record not showing the contrary, the presumption is that the original petition was verified as required by the statute.
The second is that it does not show that the proper notice was given of the pendency in court of the original petition.
The averment in the complaint is, "that at the April term, 1882, of the court, James Orear presented his petition praying for the drainage of his lands described in said petition; that such proceedings were had at the said April term of court, that the matters in said petition were referred to the commissioners of drainage, and the cause was continued." In the circuit court, it being a court of general jurisdiction, all reasonable presumptions are in favor of the action of the court; and where the record does not show the contrary, nor what notice was given, it will be presumed that the proper notice was given, or the court would not have referred the matter to the drainage commissioners. Horner v. Doe, 1 Ind. 130. This is the well settled rule of law. See the cases of Crane v. Kimmer, 77 Ind. 215, and Cavanaugh v. Smith, 84 Ind. 380, with the authorities therein cited. The case relied on by appellant, of Scott v. Brackett, 89 Ind. 413, is not in conflict with the foregoing. In that case, the original proceedings were directly attacked by petition and motion to set aside the judgment establishing the proposed ditch, asking to have it set aside for the reason that no sufficient notice of its pendency had been given, and the record showed the want of notice. The proceedings were held void on that account. In this case the complaint does not show any want of notice. Where the court has jurisdiction of the subject-matter, jurisdiction of the person will be presumed.
The third objection is that the complaint does not show that the commissioners of drainage were not of kin to any of the parties interested.
This objection, for the reasons heretofore stated, is insufficient.
The fourth is, that no copy of the judgment of approval of the report of commissioners is filed with the complaint. This action is based upon the assessments, and not upon the judgment of approval;...
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Pickering v. State
...supra, where a great number of our own and other cases are collected. Some of the statements upon this general subject found in Albertson v. State, 95 Ind. 370, are too broad, and must be limited. McMullen v. State, supra; Shaw v. State, 97 Ind. 23;Wishmier v. State, Id. 160; Vizzard v. Tay......
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Updegraff v. Palmer
... ... Ind. 182] the counties. Shaw v. State, ... etc., 97 Ind. 23; Crist v. State, ... ex rel., 97 Ind. 389; ... present. Scott v. Brackett, 89 Ind. 413; ... Albertson v. State, ex rel., 95 ... Ind. 432; Albertson v. State, ex ... rel., 95 ... ...
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Jackson v. The State
... ... enforced it. Forsythe v. Kreuter, 100 Ind ... 27; Young v. Wells, 97 Ind. 410; ... Smith v. Hess, 91 Ind. 424; ... Million v. Board, etc., 89 Ind. 5, and ... unauthorized by law. As shown in Young v ... Wells, 97 Ind. 410, and in Albertson v ... State, ex rel., 95 Ind. 370, the case of ... Scott v. Brackett, 89 Ind. 413, was a ... ...
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Jackson v. Dyer
...information is conveyed to the party in a manner wholly unauthorized by law. As shown in Young v. Wells, 97 Ind. 410, and in Albertson v. State, 95 Ind. 370, the case of Scott v. Brackett, 89 Ind. 413, was a direct attack by appeal, and that decision cannot apply to a collateral attack. In ......