Bozarth v. McGillicuddy

• Decision Date: 01 June 1897
• Docket Number: 1,976
• Citation: 47 N.E. 397,19 Ind.App. 26
• Parties: BOZARTH v. MCGILLICUDDY ET AL
• Court: Indiana Appellate Court

47 N.E. 397

19 Ind.App. 26

BOZARTH v. MCGILLICUDDY ET AL

No. 1,976

Court of Appeals of Indiana

June 1, 1897

Rehearing denied January 7, 1898, Reported at: 19 Ind.App. 26 at 40.

From the Porter Circuit Court.

Affirmed.

Nelson J. Bozarth, for appellant.

William Johnston, for appellees.

OPINION

COMSTOCK, J.

This was a proceeding by the appellees against the appellant to foreclose a lien for street improvements' of Napoleon street, in the city of Valparaiso, made on the property named in the complaint. Accompanying the complaint is a copy of the resolution adopted by the common council of Valparaiso assessing the costs of the improvement, and showing assessment against the property of appellant, Nelson J. Bozarth, of $ 391.60. To the original complaint the defendant filed a demurrer, which was overruled, whereupon answers and replies were filed. After the filing of the amended complaint the record contains the following entry "And thereupon the several answers and replies are refiled as heretofore filed to the complaint, and now the defendant Bozarth withdraws all demurrers filed by him except as to the complaint." The Laporte Savings Bank and Claresa J. Stevens were made parties as mortgagees to answer to their respective interests, etc. The defendants below filed a joint answer in abatement, setting forth that plaintiffs, prior to the commencement of the action, had not filed with clerk of the city of Valparaiso an affidavit for a precept to collect the assessment as required by statute, and that they had not, in any other legal way, attempted to collect the same through the officers of the common council nor taken any steps to collect the same other than the commencement of this action. The answer also avers that no bonds or certificates for or on account of the alleged improvement were issued or given or assigned by the city to plaintiffs, and further avers that the court had no jurisdiction. The court sustained a demurrer to this plea in abatement. As Stevens and the savings bank have not joined in the appeal, it is unnecessary to refer to their separate answers. Appellant, Bozarth, answered in ten paragraphs. First, general denial. As no question arises upon any of the pleadings but the complaint and plea in abatement, it is not necessary to set them out in detail.

A trial was had by the court, and a finding and judgment in favor of the appellees for $ ; motion made by the appellant for a new trial, which motion was overruled, and exception taken. The errors assigned are: (1) Overruling appellant's motion for a trial by jury. (2) Sustaining demurrer to the answer in abatement. (3) Overruling motion to make complaint more specific. (4) Overruling motion to strike out parts of the complaint. The fifth, eighth, ninth, and eleventh assignments call in question the sufficiency of the complaint. (6) Overruling motion to strike from the files the amended complaint. (7) Overruling motion for a new trial. (10) That the court had not jurisdiction of the subject-matter of the action.

The record discloses the filing of an amended complaint over the objection of appellant. The filing of the amended complaint was clearly within the discretion of the court, and it will be presumed that leave was given. McMakin v. Weston, 64 Ind. 270; Bever v. North, 107 Ind. 544, 8 N.E. 576; Gardner v. Case, 111 Ind. 494, 13 N.E. 36; Louisville, etc., R. W. Co. v. Hubbard, 116 Ind. 193, 18 N.E. 611. This amended complaint supersedes the original, so that it ceased to be a part of the record together with the pleadings addressed thereto. Kirkpatrick v. Holman, 25 Ind. 293; Specht v. Williamson, 46 Ind. 599; Trisler v. Trisler, 54 Ind. 172; Westerman v. Foster, 57 Ind. 408; Britz v. Johnson, 65 Ind. 561.

The answers theretofore filed to the original complaint and the replies thereto were refiled. The defendant Bozarth withdrew the demurrers filed by him except as to the complaint, and the record fails to show that a demurrer was filed to the amended complaint, but, as the eleventh error assigned is that the amended complaint does not state facts sufficient to constitute a cause of action, its sufficiency may be questioned in this appeal for the first time. McClure v. McClure, 19 Ind. 185; Livesey v. Livesey, 30 Ind. 398; Buchanan v. Lee, 69 Ind. 117; Wright v. Norris, 40 Ind. 247.

We will consider the alleged errors in the order of their assignment. This being a proceeding to collect an assessment for street improvements, which is, by statute, made a lien on the property, the value of which is presumed to be enhanced by the improvement, is governed by section 4294, Burns' R. S. 1894, which provides that: "Any owner of any lot who has been assessed more than the sum of fifty dollars thereon for the cost of such improvement who will not promise and agree in writing as hereinbefore provided, and all other owners of lots or parcels wherein assessments less than fifty dollars have been made or have heretofore been made against any one lot or parcel, shall be required to pay his or their assessment in full when made, and the same may be collected according to the provisions of amended section 10 of this act, or the contractor or his assigns may foreclose such assessment as a mortgage is foreclosed in any court of competent jurisdiction, and shall recover in addition to the amount of such assessment, with interest, all costs and a reasonable attorney's fee."

We think appellant's proposition is decided adversely to him in Bozarth v. Mallette, 11 Ind.App. 417, 39 N.E. 176, in which the court say: "This suit was brought by the appellee to foreclose a street-assessment lien. It is asserted by appellant that the only proper mode of collecting such assessments is by following the provisions of section 4298, Burns' R. S. 1894. In this we think he is in error. It is expressly stated in section 4294 that as to those assessed more than $ 50.00 who do not elect to take the benefit of the ten years' time allowed them, and those whose assessments are less than $ 50.00, the assessments 'may be collected according to the provisions of amended section 10 of this act (being said section 4298), or the contractor or his assigns may foreclose such assessment as a mortgage is foreclosed, in any court of competent jurisdiction.'" In the case at bar appellees elected to proceed under section 4294, supra, under which section, as the proceeding would be governed by the rule of procedure prevailing in foreclosure cases, neither party was entitled to a jury.

The second error assigned is the sustaining the demurrer of appellee to appellant's answer in abatement, which answer is hereinbefore substantially set out. The section of the statute under which this proceeding is brought does not require a contractor, nor any one for him, to file with the city clerk nor the common council of a city an affidavit for a precept to collect assessments; nor is it required that any bonds or certificates for or on account of the alleged improvement of the real estate be issued. There was, therefore, no error in sustaining the demurrer to this plea in abatement. Bozarth v. Mallett, supra.

The third and fourth assignments are not in the record. The fifth, eighth, ninth, and eleventh assignments of error call in question the sufficiency of the complaint. The first objection urged by the appellant to the complaint is that it contains no allegation that the work was done according to contract, nor does it set out a copy of the contract. While the complaint does not, in words, aver that the work was done according to contract, it does aver that the contract was let, after the council had duly advertised for bids, to the lowest bidder, and that thereafter, to wit, on the 8th day of September, 1893, the common council ordered the engineer to make estimates of the work done on Napoleon street, and said engineer did make report and estimates in accordance with law for said work done on Napoleon street, and reported the same to the common council, and that said report was accepted, that the common council adopted the order or resolution making the assessments as reported by the engineer, etc.

Section 4294, Burns' R. S. 1894, provides that upon the filing of the report required in the last preceding section (section 4293 providing that when the improvement has been made and completed according to the terms of the contract therefor made, etc.), "the common council of such city, or the board of trustees of such town, shall cause a final estimate of the total cost thereof to be made by the city or town engineer, and the common council of such city, or board of trustees of such town shall require said city or town engineer to report to the common council of such city or the board of trustees of such town the following facts touching said improvements," etc. It will be presumed that the engineer and common council, nothing appearing to the contrary, did their duty and that the estimates and assessments would not have been made unless the contract had been performed. The same presumptions will also arise as to the necessity and benefits of the proposed improvements, and that the property was properly the subject of taxation.

We cite as pertinent Darnell v. Keller, 18 Ind.App 103, 45 N.E. 676, which was a suit to foreclose a statutory lien for an assessment for the construction of a sidewalk in front of appellant's property. Appellant filed a counterclaim, proceeding upon the theory that the work was not done according to the plans and specifications, and that the appellant was damaged thereby, to which counterclaim the court below sustained a demurrer. Upon appeal this court held that a counterclaim would not lie in such case, using the following language: "If the failure to do the work ...