Flournoy v. Jeffersonville

• Decision Date: 30 November 1861
• Citation: 17 Ind. 169
• Parties: Flournoy and Another v. The City of Jeffersonville
• Court: Indiana Supreme Court

17 Ind. 169

Flournoy and Another v. The City of Jeffersonville

Supreme Court of Indiana

November 30, 1861

APPEAL from the Clark Common Pleas.

The judgment is reversed, with costs. Cause remanded.

John W Ray, H. C. Newcomb, and J. Tarkington for the appellant.

J. F Read, for the appellee.

OPINION

Perkins J.

In 1854, the City of Jeffersonville, Indiana, acting under the general law of 1852 for the incorporation of cities, made a contract with Calvin Cook, for the grading and graveling of a street in said city. Cook performed the work stipulated in his contract, and an assessment for payment was made, but one of the property holders, before whose property grading was done, refused payment.

In 1860, the City instituted a suit in the Court of Common Pleas of Clark county, by filing a complaint against the original owner, and subsequent purchasers, to enforce payment of said assessment for the benefit of the contractor.

The amount sued for, was over three hundred dollars.

There was a demurrer to the complaint overruled.

The defendant answered to the whole of action cause, a set-off of about sixty dollars, as against the city.

This answer was bad, for two reasons: 1. The city was a mere nominal party; Cook was the beneficiary. 2. The answer purported to go to the whole cause of action, while it was a bar to but part.

Most of the other questions raised and discussed in the cause, are settled in The City of Indianapolis v. Imberry, post p. 175, and need not be noticed here.

There is another reason why we should not consider them. This suit can not be sustained. It was a mode of proceeding prescribed by the charter of 1852, but that charter was repealed in 1857, except as to existing rights, and an entirely different mode of proceeding prescribed. The right, not the remedy, except where suits were pending, was saved in the repeal. The new remedy was re-enacted in 1859, and is probably still the law. Acts 1861, p. 32. Perhaps the amendments in these acts do not reach this part of the remedy.

The suit by the city to enforce the payment of a demand of a contractor, against a third person, the city not having first paid it, could not probably be maintained, simply by virtue of our code of pleading, which requires suits to be brought in the name of the party having the beneficial interest. No person had any contract with the property holders. The city enforced payment from them, not by virtue of a contract, but through statutory law; through the provision of the charter authorizing it, and only by that means, as the city was not liable, in any event, to the contractor for his pay, as against the property holders, and had no common law ground for a suit against them. The provision furnishing this special remedy having been repealed, and another remedy substituted by a new enactment, the former remedy fell, and the latter became the one to be adopted.

This resulted from the two established principles, that the Legislature may change, so it does not substantially impair legal remedies (Maynes v. Moore, 16 Ind. 116); and that where the Legislature creates by statute a right and an accompanying remedy, that remedy must be pursued, (see the cases cited in Protzman v. The Indianapolis, &c., 9 Ind. 467,) and the common law remedy can not be. 1 Hilliard on Torts, first ed., p. 111.

It may be observed with propriety, here, that the suit prosecuted in this case, though erroneous in form, so that it cannot be maintained, will, nevertheless, save the claim of the plaintiff from the bar of the statute of limitations. Our statute enacts, (2 R. S., § 218, p. 77,) that "If after the commencement of an action, the plaintiff fail therein, from any cause except negligence in the prosecution, or the action abate, or be defeated, by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated."

A mistake as to the form of remedy, is not "negligence in the prosecution" of the suit, within the intent of the above section, according to the case of McKinney v. Springer, 3 Ind. 59.

The question is raised in the case at bar, and also in two other cases, The City of Indianapolis v. Imberry, and The City of Logansport v. Blackmore, post, 175, whether the new remedy provided for the collection of dues for street improvements, viz., by precept from the council, mayor and clerk of the city, is constitutional; and we will dispose of the question for all the cases, in this one.

We have been unable to put our finger upon any provision of the Constitution of Indiana, with which the provision of the statute prescribing the remedy in question conflicts. We lay down and indicate the following propositions, though involving some repetitions:

1. The provision, in substance, prescribes a mode of getting a cause into court; and it is not unconstitutional because it authorizes another officer than the clerk of the court to issue the first process, by which judicial proceedings are initiated. The Constitution does not give to the clerk the exclusive right to discharge any particular duty; but declares that he shall perform such as may be prescribed by law. Art 6, § 6.

The issuing of the writ is a ministerial act, and may be performed by any person upon whom the law may cast the duty. It issues upon an affidavit, as matter of course; and is as much a ministerial act as is the issuing of an attachment, or writ of replevin, by the clerk of the court upon affidavit or of a summons upon a complaint, in court vacation. It is quite analogous...