Hiatt v. Town of Darlington
| Decision Date | 19 May 1899 |
| Docket Number | 18,603 |
| Citation | 53 N.E. 825,152 Ind. 570 |
| Parties | Hiatt, et al., Trustees of Glen Lodge No. 149, Independent Order of Odd Fellows v. The Town of Darlington |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Affirmed.
Ballard & Ballard, for appellants.
Chas Johnston and W. H. Johnston, for appellee.
The appellee, the town of Darlington, by T. M. Campbell, W. E Wilson, and F. W. Campbell, acting as its board of trustees on the 25th day of May, 1893, filed its petition with the board of commissioners of the county of Montgomery, in which county said town was situated, for the annexation of a tract of unplatted land contiguous to the town.
Campbell, Wilson, and Campbell were described in the petition as the board of trustees of the town, and they subscribed it in their official capacity. The petition conformed to the requirements of the statute. It was accompanied with a map accurately describing by metes and bounds the territory proposed to be attached, verified by affidavit, and it set out the names of the persons supposed to be the owners of the said land.
At the regular June term of the said board of commissioners, on the 8th day of June, 1893, the petition came on to be heard, and the board found that due notice of the same had been given by publication more than thirty days before the first day of said June term; that the persons named in said petition, among whom were the appellants herein, excepting John J. Kirkpatrick and Sabina Cozad, were the owners of the whole of the said territory; and that all of them had been served with notice of the pendency of the said petition. These facts appeared on the face of the record of the board.
No objection seems to have been made by any one, and the board rendered judgment granting the prayer of the petition; and it caused an entry to be made on its order-book, specifying the territory annexed, with the boundaries thereof, according to the map and survey.
Subsequently the town in good faith caused streets, alleys, and sidewalks to be laid out and constructed in the territory so annexed, expending large sums of money therefor.
Four years after these proceedings of the board annexing said land, the appellants brought this suit in the Montgomery Circuit Court to have the said order of annexation declared void.
The complaint was in three paragraphs. The first, after setting out the proceedings for such annexation in detail, averred that the inspectors of the election at which the said Campbell, Wilson, and Campbell were elected such trustees of said town did not at any time after the said election make and file in the office of the clerk of the circuit court of Montgomery county a certificate of the election of the said Campbell, Wilson, and Campbell as such trustees.
The second paragraph, in addition to the formal matters contained in the first, alleged that no notice of the petition and proceedings for annexation of the territory in question was given to any of the owners thereof.
The third paragraph differs from the second only in the averment that no notice of the proceedings was served on John J. Kirkpatrick, one of the appellants, or upon some twenty-one other persons whose names are set out, all of whom, it is charged, were known resident owners of real estate within the territory annexed.
Demurrers to the several paragraphs of the complaint were overruled, and the defendant answered in four paragraphs. The first two were in denial. The third alleged that Campbell, Wilson, and Campbell were duly elected trustees of the town, and performed the duties required of them by law; that they filed the petition for the annexation of the said territory; that due notice was given to all the owners thereof; and that upon such petition the board of commissioners at their June term, 1893, made the order of annexation. It was further averred that on the 7th day of June, 1897, and before the commencement of this suit, the certificate of the election of the said Campbell, Wilson, and Campbell, as such trustees, was filed in the office of the clerk of Montgomery county.
The fourth paragraph of the answer averred, among other things, that all of the owners of the land sought to be annexed, including the appellants, were personally served with notice of the proceedings; that at its June term, 1893, the board of commissioners, with the knowledge of the appellants and of all the owners of the said land, made the order of annexation; that afterwards the said town, in good faith, and without knowledge of any defect in the proceedings for annexation, laid out and made improvements in the territory so annexed, consisting of streets, alleys, and sidewalks, and expended large sums of money therefor, and that it incurred a debt for a school building for the use of the school children of said town, including those in the territory annexed; that bonds were issued for said debt and were outstanding and unpaid; and that the appellants and the other owners of land within the boundaries of the territory annexed stood by without objection, and permitted said improvements to be made for the benefit of their property.
Demurrers to these answers were overruled.
The second paragraph of the answer being properly treated as an argumentative denial, replies were filed to the third and fourth paragraphs only.
The first paragraph of the reply to the third paragraph of the answer attempted to avoid the defense pleaded in that paragraph by alleging that the certificate of the election of Campbell, Wilson, and Campbell as trustees was not filed in the clerk's office until the validity of the official acts of the said Campbell, Wilson, and Campbell had been called in question by the appellants in another action between said town and said appellants.
The second paragraph of reply to the fourth paragraph of the answer averred that the total cost of the improvements made by the town in the territory annexed, did not equal the amount of general taxes paid to said town by appellants and the other owners of lands within the territory annexed, and that the debt for the school building was incurred without authority of law.
The third paragraph of the reply set up the same facts as were alleged in the second paragraph, with the additional statements that the only land owned by the appellant Glen Lodge No. 149, in said territory was a cemetery, which is not subject to taxation, and that the other owners objected to the issuing of the bonds by the town on account of the debt for the school building, and that appellee had knowledge of these facts.
The fourth paragraph of reply to the second paragraph of the answer alleged that the lots in the cemetery embraced in the territory annexed were held by the owners thereof in fee simple.
To each paragraph of the reply a demurrer was sustained, and the appellants refusing to plead further, judgment was rendered against them.
The errors assigned are the rulings of the court upon the demurrers to the second, third, and fourth paragraphs of the answer and to the second, third, and fourth paragraphs of the reply.
The question with which appellants are met at the threshold of this appeal is, are the proceedings of the board of commissioners in the matter of the annexation of the lands in controversy open to attack by them?
The section of the statute under which these proceedings were taken is as follows:
Section 4426 Burns 1894, section 3389 Horner 1897.
The power and right of the board of commissioners of Montgomery county to hear and determine the petition of the town of Darlington for the annexation to the town of contiguous unplatted territory are not denied. Having jurisdiction of the subject-matter of the proceeding, did the board obtain jurisdiction of the persons of the owners of the territory proposed to be attached? The proceedings of the board which are set out at length in the complaint, disclose that all of the appellants, excepting possibly John J. Kirkpatrick and Sabina Cozad, were named in the petition for annexation as known resident owners of the territory to be attached, and that they were personally served with notice of the petition and proceedings. Even if Kirkpatrick and Cozad were not served they are in no better condition than the other appellants who were served. They have united with the other appellants. Their interests cannot be severed from those of their co-plaintiffs. The cause of action is entire, and if the complaint fails to show a good cause of action as to any of the plaintiffs, it is bad as to all. Town of Cicero v. Williamson, 91 Ind. 541; Peters v. Guthrie, 119 Ind. 44, 20 N.E. 536; McIntosh v. Zaring, 150 Ind. 301, 49 N.E. 164, and cases cited.
The appellants other than Kirkpatrick and Cozad cannot assail the proceedings because they were parties to them, and are shown to have been served with notice. Their only remedy was by appeal from the judgment of the board.
In Board, etc., v. Hall, 70 Ind. 469, it is said: "The filing of the petition calls into...
To continue reading
Request your trial