Crist v. State, ex rel. Whitmore

• Decision Date: 27 September 1884
• Docket Number: 11,647
• Citation: 97 Ind. 389
• Parties: Crist v. State, ex rel. Whitmore, Drainage Commissioner
• Court: Indiana Supreme Court

97 Ind. 389

Crist v. State, ex rel. Whitmore, Drainage Commissioner

No. 11,647

Supreme Court of Indiana

September 27, 1884

From the Grant Circuit Court.

J Brownlee, for appellant.

J. C Branyan, M. L. Spencer, R. A. Kaufman and W. A. Branyan, for appellee.

OPINION

Best C.

This action was brought by the appellee to enforce a ditch assessment. A demurrer to the complaint for want of facts was overruled, and this ruling is assigned as error.

The first objection urged is that neither the assessment nor a copy is filed with the complaint. This objection seems well taken. The proceedings which resulted in this assessment were instituted in the Huntington Circuit Court, under the act of April 8th, 1881. The first four sections of this act authorize any person or persons to file a petition in the proper circuit court for the establishment of a ditch. This shall be referred to the commissioners of drainage, who shall, among other things, assess the benefits, etc., to each parcel of land affected, if any, report their proceedings to said court, and if there is no remonstrance within three days, or if the judgment shall be against the remonstrator, "the court shall also make an order declaring the proposed work established, and approving the assessments, and shall direct some one of the commissioners to construct and make the proposed work."

The fifth section provides that the commissioner charged with the execution of the work shall assess, from time to time, upon the lands benefited as adjudged by the court, such sums as he may deem necessary, not exceeding the above amount adjudged upon any one tract; that he may require the same to be paid in instalments not exceeding twenty per cent. per month, and if not paid he may "bring suit in the name of the State of Indiana, for his use as commissioner of drainage, in any court of competent jurisdiction, to enforce a lien upon any tract or tracts of land for the amount so assessed by him."

The assessment mentioned in this section is the assessment the commissioner is authorized to enforce, and while it is averred that such an assessment was made, neither the original nor a copy was filed with the complaint. A copy of the report of the commissioners made to the circuit court, and a copy of the order of the court declaring the proposed work established, were filed, but the assessment mentioned in these proceedings is not the basis of the suit, and, therefore, these exhibits could not supply the place of a copy of the...