Haefgen v. State ex rel. Brown
| Decision Date | 19 May 1897 |
| Parties | HAEFGEN v. STATE ex rel. BROWN, Commissioner. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marion county; E. H. Brown, Judge.
Proceeding by the state on the relation of Charles A. Brown, commissioner, against Eliza Haefgen, to enforce the lien of a drainage assessment. From a judgment for plaintiff, defendant appeals. Affirmed.Jesse H. Blair, for appellant. A. W. Wishard and Blackledge & Thornton, for appellee.
On June 11, 1890, George Harness and others filed their petition in the clerk's office of the Marion circuit court for the construction of a ditch. The appellant, whose lands would be affected by the work, was made a party to the proceedings. She did not appear and remonstrate, but suffered a default, and such steps were taken and proceedings had as that the proposed ditch was ordered to be constructed, and the work of construction was referred to the appellee, relator, as one of the drainage commissioners. Appellant's lands were assessed for benefits, and this was a proceeding to enforce the lien of such assessments. The ditch was constructed under the provisions of the drainage act of April 6, 1885. In the proceedings to enforce the lien of the assessments against her lands judgment was obtained, and a decree entered against appellant for the entire amount of the assessments, etc. From this judgment she appeals, and the errors assigned call in question the sufficiency of the complaint, the sufficiency of appellant's third, fourth, and fifth paragraphs of answer, and the overruling of her motion for a new trial. Appellant's first contention is that the complaint is defective because a copy of the assessment, which is the basis of the action, is neither set out in the complaint, nor filed with and made a part thereof as an exhibit. If the assessment is not set out in the body of the complaint, or made a part of it by reference as an exhibit, the complaint is ill, and the demurrer thereto should have been sustained. We must look to the averments of the complaint to determine this question. The complaint avers the filing and docketing of the petition, notice to appellant, a reference to the drainage commissioners, and that said commissioners made a report thereon. Upon the question of the report of the commissioners and the assessments, the allegations of the complaint are as follows: “Upon the 10th day of June, 1891, said commissioners did, pursuant to law, submit a report of their doings as such commissioners, and that among other things they did report and find that said defendant, Eliza Haefgen, was the owner of certain real estate therein described, as follows: [Then follows the description of the lands, the first containing 20, the second 40, and the third 40, acres.]” Continuing, the complaint avers that The complaint then avers that the relator was charged with the construction of said ditch; that he gave notice of the time and place when he would receive bids and proposals for the construction of said ditch; that the work of construction was let in conformity to law; that the contractors executed bonds conditioned for the faithful performance of their contracts; that said contractors fully completed said work, and that the same was accepted and approved by the county surveyor and said relator; “that by reference thereto the report of the commissioners, and the various orders of the court in relation thereto, and all of the proceedings had in said cause number 5,273, of this court, are hereby made a part of this complaint.” The complaint further avers that, subsequent to his appointment as such commissioner of construction, he gave notice by publication, as required by law, of the time and place where the installments of the payments of benefits so assessed would become due and payable, and that he gave actual notice of the time and place where said installments would become due and payable to the appellant; that the work of construction, etc., has long since been completed, and has been affirmed and accepted by the county surveyor and the relator; and that a personal demand has been made upon appellant for payment, and that the same has been refused.
Under these allegations of the complaint, and the adjudicated cases, upon the questions under consideration, we do not think appellant's objection to the complaint well taken. In Laverty v. State, 109 Ind. 217, 9 N. E. 774, it was said by Howk, J., speaking for the court: “In suits for the collection of drainage assessments, * * * all that the complaint * * * need state or show, of or concerning the original proceedings and judgment for the...
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