City of Gary v. Pontarelli
| Decision Date | 23 June 1937 |
| Docket Number | 26881. |
| Citation | 9 N.E.2d 86,212 Ind. 319 |
| Parties | CITY OF GARY v. PONTARELLI. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Porter County; Mark B Rockwell, judge.
Harry Long, Roswell B. Johnson, and Gilbert Gruenberg, all of Gary for appellant.
Bomberger Peters & Morthland, of Hammond, for appellee.
The appellant entered into a contract with the appellee for the construction of a district sewer in the City of Gary. Pursuant to the contract the construction was completed reported to the Board of Public Works, and accepted as having been performed according to the plans and specifications. The contract price was approximately $200,000. Thereafter, the assessment roll was adopted and confirmed. Three property owners within the district affected by the construction filed remonstrances against benefits assessed upon their real estate. Their remonstrances were rejected by the board. Within ten days the remonstrators each filed a verified petition in the superior court of Lake county praying for a reappraisement. The reappraisement was made and filed showing a reduction in the assessment against the remonstrators' real estate in the sum of $11,230.21, which was certified by the court to the proper city authorities.
The city failed to pay the contractor the balance due on the contract price caused by said reduction. He filed a complaint against the city in which he asked for a judgment in that amount. The complaint alleges the foregoing facts together with the proceedings of the Board of Public Works, and demands judgment. To this complaint the appellant filed an answer in three paragraphs: The first was a general denial. The second paragraph alleged that the amount reduced on account of reassessment was null and void for the reason that no issue was formed in the lower court. The third paragraph alleged that the assessments made in that proceeding were null and void for the reasons that the notices published did not contain a proper description of the real estate; that no notice was given to the owners of the adoption of the preliminary assessment roll; that the Board of Public Works failed to prepare an assessment roll with the names of the property owners as provided by law. Demurrers were sustained to the second and third paragraphs of answer.
The cause was submitted to the court for trial without the intervention of a jury. The court, upon request, made special findings of fact and stated its conclusions of law thereon. The court found the facts in substance as herein before set out, showing a substantial compliance with the statute authorizing the construction of the sewer; that the Board of Public Works gave notice of the adoption of the preliminary assessment roll. A copy of the notice is included in the special findings and gives a description of the sewer, which includes the several lines, the beginnings and terminals, and a description of the territory included, bound by streets and avenues named in the notice. The court then found: 'Said assessment roll contains the names of the owners and description of property to be assessed, with the amounts of the preliminary or primary assessments against each lot or parcel of land abutting on and benefitted by said sewer.'
It was found that before the commencement of this action the plaintiff (appellee) made proper demand upon the city for the payment of the remainder due on the contract, and that the plaintiff performed all conditions required of him by the terms of the contract.
It appears that after the remonstrators filed their verified petition in the superior court for reappraisement, and amended petition was filed. It is this feature of the action that has caused part of the controversy herein, and is disclosed by the court's finding No. 11: 'That the judgment in the Lake Superior Court Room No. 1, Cause No. 28093 and 28095 and 28097 were entered upon the original complaints in each case, which original complaints had not been refiled after the amended complaints which had been subsequently filed had been dismissed pursuant to a ruling of the Supreme Court of Indiana, Volume 202, page 445 .'
Upon the facts found the court stated as conclusions of law: (1) That the law is with the plaintiff; and (2) that he was entitled to recover of the defendant the sum of $11,230.21, together with interest. The defendant objected and excepted to these conclusions. A judgment was entered and an appeal prayed to the Appellate Court. The appellant assigns errors upon the court's ruling in sustaining appellee's demurrer to the second and third paragraphs of answer, and upon its conclusions of law. A motion for a new trial was not filed. A transcript of the evidence is not before the court.
It is the appellant's contention that finding No. 11 shows that the judgment of the Lake superior court was entered upon the 'original complaints' which were not refiled after the 'amended complaints' were dismissed, pursuant to direction of the Supreme Court. The case there referred to is City of Gary v. Roper (1931) 202 Ind. 445, 175 N.E. 242. That case is an appeal growing out of this assessment proceeding. It appears from that opinion that the judgment below was based upon what was designated as an amended complaint. In reversing the case this court directed the lower court to dismiss appellee's amended complaint, and ordered that all further proceedings should be had upon the appellee's original petition filed pursuant to the provisions of section 10569, Burns' R.S.1926, section 11709 Baldwin's Ind.St.1934.
The appellant contends that when the amended complaint, or, more correctly, petition for reassessment, was filed in the superior court, the effect of...
To continue reading
Request your trial