Dowell v. The Talbot Paving Company

• Decision Date: 12 October 1894
• Docket Number: 16,770
• Citation: 38 N.E. 389,138 Ind. 674
• Parties: Dowell v. The Talbot Paving Company
• Court: Indiana Supreme Court

38 N.E. 389

138 Ind. 674

Dowell v. The Talbot Paving Company

No. 16,770

Supreme Court of Indiana

October 12, 1894

From the Wells Circuit Court.

The judgment is affirmed.

L Mock, L. B. Simmons, H. Brownlee, H. J. Paulus, D. H. Fouts and A. M. Waltz, for appellant.

J Morris, R. C. Bell, J. M. Barrett and S. L. Morris, for appellee.

McCabe J. Dailey, J., did not participate in this decision.

OPINION

McCabe, J.

Appellee sued appellant, in the Blackford Circuit Court, to foreclose a lien on certain lots owned by appellant in the town of Hartford City, in the county of Blackford, for street improvements on Washington street, on which appellant's lots bordered and abutted.

A trial by the court resulted in a special finding of the facts, on which conclusions of law were stated by the court. Pursuant to the conclusions of law, the court, over a motion for a new trial, rendered a judgment and decree in favor of appellee for the total amount of the cost of such improvement, $ 741.11, and $ 100.00 attorney's fee, which was distributed proportionately on each of the three lots against which the cost of the improvement had been assessed according to the amount on each.

The errors assigned call in question the sufficiency of the facts stated in the complaint, the conclusions of law, the action of the court in overruling the appellant's motions for a new trial and in arrest of judgment, overruling appellant's motion for judgment in his favor on the facts found, in making new findings of facts and adding the same to the original facts found by the court, in striking out the original conclusions of law and rendering new ones, in refusing to modify the decree, in refusing a jury trial, and in refusing to add to the special finding of facts the facts requested by the appellant.

It is expressly conceded by the appellant's learned counsel that the same question is presented on the special finding and conclusions of law that is presented on the assignment that the complaint does not state facts sufficient to constitute a cause of action, and we may add that of the motion in arrest of judgment. Under such circumstances, it is not material to examine into the sufficiency of the complaint. Haskett v. Maxey, 134 Ind. 182, 33 N.E. 358.

The facts essential to a determination of the questions involved in the conclusions of law, as shown by the special finding, are that on and prior to June 4, 1890, Hartford City was, and still is, an incorporated town; that on that day the board of trustees of said town, in regular session, deeming it necessary to improve Washington street, in said town, from the east line of Gadbury's addition to the tracks of the Pittsburgh and Chicago Railway, therein declared, by resolution, the necessity therefor, providing therein the kind, size, location and terminal points of such improvement; that due notice was given to the property-owners, and after a hearing given to such owners, said board, on July 2, 1890, at a regular session, by a vote of more than two-thirds, duly ordered said street to be graded and paved with cedar blocks, and to be curbed with stone curbing, according to the plans and specifications then and there adopted and filed with the clerk of said town; that said work was to be done by contract; that due and proper notice was given by publication for three weeks in a newspaper published within said town for sealed proposals for doing said work; that plaintiff filed its bid in accordance with said notice, it being the lowest and best bid for said work; that said board, at a regular meeting, on August 2d, 1890, let said work to plaintiff; that the resolution ordering the work to be done provided that the costs should be collected from the real estate adjoining and bordering on said improvement, and thereupon plaintiff and said town entered into a written contract for the making of said improvement pursuant to said bid; that plaintiff completed said work, and at a regular meeting of said board it found and determined that said work had been done and completed according to the terms of said contract, and thereupon caused a final estimate of the total cost thereof under said contract to be made by the town engineer in accordance with section 6 of chapter 118 of the Acts of 1889, p. 242; that after the filing of the report of the town engineer as to the cost of said improvement, said board caused two weeks' notice to the property-owners affected to be given by publication in two newspapers representing the two political parties casting the largest number of votes at the last general election, printed and published in said town of the time and place when and where a hearing would be had upon such report before a committee appointed by such board to consider such report; that at the time and place mentioned in such notice the committee met and heard all objections by property-owners desiring to offer objections, and all persons aggrieved; that said committee reported back to said board that said report of the town engineer be amended in some slight particulars; that certain pieces of real estate bordering on said improvement had been accidentally omitted from said report that should be placed in said estimate, and that the total cost of said improvement was $ 29,877.51; that the average cost per running foot of the whole length of that part of said street so improved was $ 3.237, and stating in said report the name of each property-owner on that part of the street so improved, and also that the number of front feet owned by the respective property-owners on said part of said street was 8,103.

Also setting out in said report the amount of the cost for said improvement due upon each lot or parcel of ground respectively, giving the full description, together with the owner's name of each lot or parcel of ground bordering on said street so improved. The defendant was assessed therein the amount hereinafter stated against the property hereinafter mentioned; that said report was true in every particular; that said board, at a regular meeting thereof, held on January 7th, 1891, having found said committee's report, and the proposed estimate reported by them, to be just, true, and legal, confirmed, approved, and adopted said report, and then and there assessed against the various lots and parcels of ground therein set forth the amounts which should be assessed against the same on account of said improvement, and caused said assessments to be placed upon the town tax duplicate and charged against said lots and parcels of ground therein described; that the defendant was on June 4th, 1890, up to and including the time of making the assessment, and still is, the owner of the lots which are described as lot 1 in block 23 in the original plat of said town, lot 2, in block 25 in said original plat of said town, and a strip of ground 34 feet off the west side of lot 4, block 24, in said original plat of said town, and that all of said real estate adjoins, borders and fronts on said improvement; that lots 1 and 2 each adjoin and front on said improvement to the width of 60 feet; that said strip fronts, borders and joins said improvement to the width of 34 feet; that said board, at said last mentioned meeting, assessed against said lot 1, for and on account of said improvement, $ 194.22, and against lot 2, for the same purpose, assessed $ 194.22, and on the strip on said lot 4 aforesaid, for the same purpose, assessed $ 110.06, all of said assessments being in accordance with said estimate and report; that said amounts so assessed against said real estate were obtained by multiplying the number of front feet on said improvement of each lot by the average cost price per running front foot; that said assessments are past due and wholly unpaid, and defendant had refused and still refuses to pay the same; that said defendant has failed and refused to request the issuance of bonds therefor as provided in said chapter 118; that the plaintiff, the Talbot Paving Company, is a corporation; that said town of Hartford City never at any time issued any certificates or bonds to the plaintiff in this cause as provided for in section 9 of said chapter 118, and no part of said defendant's real estate is unplatted lands; that the defendant failed, neglected, and refused to pay said assessment, and failed, neglected and refused to file any waiver for the purpose of obtaining the right of paying said assessments in installments; that a reasonable attorney's fee for the collection of all of said assessments is $ 100, and that the same should be apportioned and assessed against said several tracts or parcels of ground in proportion to the number of front feet of each abutting on said improvement.

The conclusions of law stated are: 1. That the plaintiff is entitled to recover in this action a reasonable attorney's fee, amounting to the sum of $ 100, which should be apportioned and assessed against said several lots or parcels of ground in proportion to the number of front feet of each abutting on said improvement. 2. That the plaintiff has and holds a valid lien upon each of said lots 1 and 2, in blocks 23 and 25, respectively, in the original plat of said town, for the sum of $ 249.77, and holds a lien upon said strip of lot 4, for the sum of $ 141.57, and is entitled to have said lien foreclosed.

The objection to the complaint and to the second conclusion of law is that the act approved March 8, 1889, did not authorize the contractor to foreclose the lien or maintain a suit to enforce payment of the cost of the improvement and for an attorney's fee.

The third section of the act provides that the city or incorporated town shall be liable to the contractor for the contract price for said improvement, and the owners of the...