Close v. Twibell

• Citation: 47 Ind.App. 290,92 N.E. 377
• Decision Date: 01 July 1910
• Docket Number: No. 6,843.,6,843.
• Parties: CLOSE et al. v. TWIBELL et al.
• Court: Court of Appeals of Indiana

47 Ind.App. 290

92 N.E. 377

CLOSE et al.

v.TWIBELL et al.¹

No. 6,843.

Appellate Court of Indiana, Division No. 1.

July 1, 1910.

Appeal from Circuit Court, Blackford County; C. E. Sturgis, Judge.

Action by George W. Close and others against Samuel B. Twibell and others. Judgment for defendants, and plaintiffs appeal. Reversed.

C. W. Kinnan, Louis Newberger, and Charles W. Richards, for appellants. L. B. Simmons, for appellees.

WATSON, P. J.

This is an action brought by appellants against appellees to enforce an alleged street improvement assessment made under the provisions of the act of 1889 (Laws 1889, c. 118), as amended in 1891 (Laws 1891, c. 118), commonly known as the “Barrett Law,” and to foreclose the lien thereof against a certain lot described in the complaint made in the improvement of that street in 1893 and 1894, and seeking also to fasten the lien of said assessment upon certain backlying lots to the 150-foot line from the improvement, and to subject the latter to sale in their order for any deficit that might remain after the sale of the abutting lot. Appellants were the owners of separate bonds issued on account of the improvement, and appellees, except the Northern Stone Company, were the owners at the time of the institution of the suit of the abutting and backlying lots. The complaint is in two paragraphs; the first one declaring on the assessment and the separate bonds of the appellants issued on account thereof, and the second one declaring on the assessment and the contractor's assignments to appellants by certificates of estimate and otherwise of so much of his interest therein as is represented by the amounts of their several bonds. To each paragraph the appellees filed separate answers in general denial. Upon trial the court made special findings of fact and stated thereon its conclusions of law, to wit, that appellants take nothing by their action, to which conclusion appellants separately excepted. Judgment in favor of the appellees. The error relied on by appellants for reversal is that the court erred in its conclusion of law.

It is insisted that appellants' brief was not filed within time. The rules of the supreme and this court require that the appellants shall file their brief within 60 days from date of submission. The appellants, before the expiration of 60 days, petitioned and were granted 30 days' additional time. This made 90 days in which the appellants had to file their brief. The ninetieth calendar day from the date of submission fell on Sunday. Section 1350, Burns' Ann. St. 1908, provides: “That time shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.” In Hogue v. McClintock, 76 Ind. 205, it was held that this statute is applicable to the filing of briefs, and therefore applies with equal force when an extension of time is granted.

In its special findings, the court finds substantially the following facts: On April 3, 1893, Adams street was and since has been a north and south street in the town or city of Montpelier, this state, extending from Water to Monroe streets therein. That on said date the ground at the northeast corner of said Adams and Windsor streets was and is platted and subdivided among others into lots 1 and 2 of block 2, in Rhine's First addition, and lot 1 in Miller's addition. That each of said lots is 150 feet long north and south, and 50 feet wide east and west. That said lot 2 of the same block and addition adjoins said last-mentioned lot 1 on the east. That next to the east of said lot 2 is an alley 14 feet in width, and next to the east of said alley is said lot 1 in Miller's addition. That the following shows the sizes and relative location of said lots, streets, and alleys, as shown by the assessment roll adopted by the board of trustees:

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That said board of trustees in all things complied with the statutes with reference to making said improvement, contract, and assessment against the property. On November 22, 1894, said board approved the report of said committee, and approved and confirmed the several assessments set forth so approved by said committee, and thereupon assessed said lot 1, block 2, in Rhine's First addition, standing in the name of William Twibell, in the sum of $452.62 on account of said improvement as set forth therein. That to secure the privilege of paying said assessment in 10 equal annual installments, said William Twibell on December 12, 1894, filed with the clerk of said town his written waiver, and in consideration of said privilege therein agreed that he would make no objections to any illegality or irregularity as to said assessment and would pay the same, and the several installments thereof, with interest, when due, which said waiver and agreement said board accepted on the following day. That for the purpose of anticipating the collection of the aforesaid assessment and others similarly deferred, said board on December 13, 1894, adopted an ordinance for the issuance of bonds to the amount of $14,946.73 for the purpose of raising the money to pay for said improvement; said bonds to be issued in the name of said town and to contain the name of the street so improved and to be payable in 10 equal annual installments with interest at 6 per cent. payable semiannually. That among the bonds issued in pursuance thereof was bond No. 9 1/2 for the principal sum of $234.94, and also bond No. 9 3/4 for the principal sum of $5,000, both of which by their terms were made due and payable June 1, 1904, to bearer, with interest at 6 per cent. without relief from valuation or appraisement laws; said interest being...