Carr v. The State

• Decision Date: 20 November 1885
• Docket Number: 12,289
• Citation: 3 N.E. 375,103 Ind. 548
• Parties: Carr v. The State, for Use of Cottingham, Drainage Commissioner
• Court: Indiana Supreme Court

3 N.E. 375

103 Ind. 548

Carr v. The State, for Use of Cottingham, Drainage Commissioner

No. 12,289

Supreme Court of Indiana

November 20, 1885

From the Hamilton Circuit Court.

Judgment affirmed.

W Booth and D. Moss, for appellant.

G Shirts and W. R. Fertig, for appellee.

OPINION

Elliott, J.

This action was brought by the appellee to enforce an assessment for the construction of a ditch, levied under the act of April 8th, 1881.

The first objection to the validity of the assessment is that the notice of the filing of the petition was not sufficient.

The special finding states that proof of notice was made by affidavit showing that notices were posted. It was sufficient to give notice by posting as the statute provides. Meranda v. Spurlin, 100 Ind. 380. It is competent for the Legislature to provide what kind of notice shall be given, and where the notice is of the character prescribed by statute, it is sufficient. Hobbs v. Board, etc., 103 Ind. 575, 3 N.E. 263, and authorities cited.

Where the court acts upon a notice, it is not necessary to make a formal entry declaring it to be such as the law requires. The action of the court is sufficient without any formal order approving the notice. Platter v. Board, etc., 103 Ind. 360; 2 N.E. 544, and authorities cited; Cauldwell v. Curry, 93 Ind. 363; Board, etc., v. Hall, 70 Ind. 469.

A failure to note on the petition the day for docketing the same is a mere irregularity, and if not objected to within three days after the petition is docketed, the objection is deemed waived. Smith v. Smith, 97 Ind. 273.

The land was described in the petition, and the name of the owner was thus given: "The estate of Thomas Carr and Clarka Carr, of which Joseph Booth is executor."

It has often been held by this court, and by other courts, that such a naming of the owner is sufficient in cases of assessment for taxes, and we see no reason why the same rule should not apply here. Noble v. City of Indianapolis, 16 Ind. 506; Sloan v. Sewell, 81 Ind. 180; Jenkins v. Rice, 84 Ind. 342; Wheeler v. Anthony, 10 Wend. 346; State v. Collector, etc., 4 Zabriskie N. J 108. We affirm this because the amendatory act of 1883 provides that "Such petition shall be sufficient to give the courts jurisdiction over the lands described therein, and power to fix a lien thereon if they are described as belonging to the person who appears to be the owner according to the last tax duplicate or record of transfer." Acts 1883, p. 174. There is a difference between the name of the owner of the land as given on the tax duplicate and as given in the petition, but it is not of such a material character as to avoid the proceedings. We...