Goring v. McTaggart

• Decision Date: 11 October 1883
• Docket Number: 10,568
• Citation: 92 Ind. 200
• Parties: Goring v. McTaggart
• Court: Indiana Supreme Court

92 Ind. 200

Goring v. McTaggart

No. 10,568

Supreme Court of Indiana

October 11, 1883

Rehearing: December 18, 1883.

Petition for a Rehearing Overruled, Reported at: 92 Ind. 200 at 202.

From the Cass Circuit Court.

Judgment affirmed.

T. J Tuley, for appellant.

J. W. McGreevy and D. B. McConnell, for appellee.

OPINION

Elliott, J.

Appellee asked and obtained an injunction enjoining appellant from selling a lot upon a precept issued for the collection of an assessment for the expense of improving a street in front of the lot.

The complaint was sufficient to entitle the appellee to an order prohibiting the sale upon the precept, inasmuch as it showed that the precept was void. A sale upon a void writ or precept may be enjoined. Equity interferes in such cases in order to prevent a cloud from being cast upon the title.

It appears that no legal estimate had ever been made for the cost of the improvement, and without such an estimate no valid precept could issue for the collection of the assessment.

It is argued that an injunction will not lie in such a case as this, for the reason that the plaintiff has an adequate legal remedy by appeal. It may, perhaps, be true that so far as the proceedings for the collection of the assessment is concerned, this position is well taken, but it does not meet the question here encountered. The question here is, Can a sale on a void precept be enjoined? not whether the collection of the assessment, or rather of the cost of improvement, can be restrained. We have cases holding, and as we think correctly, that where an error is committed in the proceedings, which can be corrected, it is in the power of the common council to make the proper correction. It follows from this that where the error is one which can be corrected, and the omission to order, approve, or issue an estimate is regarded as such an error, the proceedings for the collection of the assessment can not be enjoined, although a sale on an invalid precept may be restrained. We have cases so deciding. Wilson v. Poole, 33 Ind. 443. The injunction properly reaches only to the threatened sale.

We sustain the complaint upon the ground that it shows the appellee entitled to some relief, and that is a prohibition against selling on the void precept, but we do not mean to hold that it is good because it shows that the work done by the contractor was not done according to contract, for that, and all kindred questions, can only be presented by appeal.

The appellant could not give force to his void precept by showing that the work was in fact done in front of the appellee's lot. The statute expressly provides an exclusive remedy for the enforcement of street assessments, and, as the proceeding is a summary statutory one, the provisions of the statute must be pursued.

The appellee was not bound to prove that the work had not been done in front of his lot in order to entitle him to give evidence of the omission which rendered the precept void.

It may, perhaps, be true that the relief awarded the appellee is greater than should have been adjudged, but as no motion was made to modify the judgment in the court below no question is here presented. It is now well settled that where there is a complaint entitling the plaintiff to some relief, and the error is in granting too much, the remedy of the defendant is by motion to modify or correct. Hardy v. Miller, 89 Ind. 440.

Judgment affirmed.

Counsel for appellant earnestly insists that we have not fully considered the questions presented, and have not justly construed the record.

We have again examined the record and find that counsel, and not the court, is in error. The complaint does aver that "no part of the work has been done in accordance with the general line of the street; that it has not been done in accordance with the contract; that no part of the work has been done to the acceptance of the civil engineer; that the work has not been done as a whole, but has been done in spots on said street in front of the property of those who might be supposed able to pay, leaving the street generally in an incomplete condition, worse than it was before the commencement of the work; that the lines of the street have never been fully determined since the original survey; that many houses and improvements are out in the street, some of them as much as ten feet, and the city has taken no steps to cause the obstructions to be removed so that the street can be improved; and further that no order has ever been made by the common council of the city of Logansport for the estimate of the work done on said improvement, and that no lawful estimate was ever made." We do not see how it is possible to question the right of the plaintiff to an injunction upon such a showing.

There was nothing for him to tender, for there was nothing for which he was bound. The rule that a tender must be made where anything is due, can not here apply, for there was nothing legally or equitably due.

A street contractor can not improve mere patches of a street and then recover upon the ground that he has done work of value. The law means that the...