Hackett v. State ex rel. Martindale

• Decision Date: 06 March 1888
• Citation: 113 Ind. 532,15 N.E. 799
• Parties: Hackett v. State ex rel. Martindale.
• Court: Indiana Supreme Court

113 Ind. 532

15 N.E. 799

Hackett

v. State ex rel.Martindale.

Supreme Court of Indiana.

March 6, 1888.

Appeal from circuit court, Fulton county; Isaiah Connor, Judge.

Geo. W. Holman and J. S. Slick, for appellant. Rowley & Baker, for appellee.

Niblack, J.

The proceeding appealed from in this case was an action in the name of the state, on the relation of Jesse L. Martindale, a commissioner of drainage of Fulton county, against Thomas P. Hackett, the appellant, to enforce alleged liens resulting from assessments for the construction of a ditch, upon three 40-acre tracts of land belonging to the latter. The complaint averred that the appellant and one Isaac H. Kersey, on the 12th day of August, 1882, filed their petition in the office of the clerk of the Fulton circuit court, praying for the drainage of certain lands therein described, including the tracts of land in controversy in this cause, and setting forth all the facts necessary to constitute a sufficient petition for the purpose had in view in presenting it; that, on the 29th day of August, 1882, it was made to appear to the said Fulton circuit court, by affidavit, that notice had been given of the filing of such petition by posting up notices in three public places in each of the townships in which the lands described in the petition were situated, and near the line of the proposed ditch, and one at the door of the court-house, not less than 20 days before the day noted in the petition as the day set for docketing and hearing the same, or the commencing of the ensuing September term of said court. The complaint further set forth the proceedings upon the petition in question, which resulted in a favorable report upon it by the commissioners of drainage, accompanied by assessments against the lands which it was supposed would be benefited by the construction of the proposed work; also in the confirmation of such report and the accompanying assessments, in ordering the work to be constructed in accordance with the recommendations of the commissioners of drainage, and in appointing William J. Hill, one of such commissioners, and the predecessor of Martindale, the relator, to superintend and enforce the construction of the proposed ditch. It was still further made to appear by the complaint that an assessment was made against each of the tracts of land belonging to Hackett, and particularly described therein, as the estimated value of the benefits which would result to it from the contemplated improvements; also that Hill, as a commissioner of drainage, in charge of the work, ordered the respective amounts assessed against the lands for estimated benefits to be paid in installments, as follows: 20 per cent. on the 28th day of July, 1883; 20 per cent. on the 25th day of August, 1883; 20 per cent. on the 22d day of September, 1883; 20 per cent. on the 27th day of October, 1883; and 20 per cent. on the 24th day of November, 1883; and caused notice of such assessments to be given; that there was a balance still remaining due on the amounts assessed against Hackett's lands. Hackett answered in four paragraphs, the first in denial, and the others, respectively, setting up affirmative matters in defense. Demurrers were sustained to the second, third, and fourth paragraphs. A cross-complaint was thereupon filed by Hackett, alleging that Hill, as the superintendent of the contemplated ditch, contracted with one Gelbaugh to make the necessary excavations at a fixed price; that Gelbaugh, under the pretext of digging the ditch ordered to be made, as in the complaint stated, entered upon the lands of him, the said Hackett, and dug a ditch thereon at another and...