Hughes v. Parker

• Citation: 148 Ind. 692, 48 N.E. 243
• Case Date: November 17, 1897
• Court: Supreme Court of Indiana

148 Ind. 692
48 N.E. 243

HUGHES et al.
v.
PARKER et al.

Supreme Court of Indiana.

Nov. 17, 1897.

Appeal from circuit court, Hancock county; Charles G. Offutt, Judge.

Action by George W. Parker and others against Margaret A. Hughes and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

[48 N.E. 244]

Saml. A. Wray, R. A. Black, Robert Williamson, Epl. Marsh, and Wm. W. Cook, for appellants. U. S. Jackson, E. W. Felt, and Spencer & Binford, for appellees.

HOWARD, J.

This was an action for the foreclosure of a street-assessment lien. There was a finding of facts by the court, and judgment of foreclosure in favor of appellees, contractors for the improvement. Many errors are assigned by appellants. We shall consider those which are discussed by counsel.

It is first contended that the common council of the city of Greenfield never acquired jurisdiction of the subject-matter of the improvement, or of the persons of the property owners assessed therefor, for the reason that no resolution of necessity was ever passed, or notice thereof given, as required by section 2 of the Barrett law (Acts 1889, p. 237; Rev. St. 1894, § 4289). It must be admitted that the proceedings of the council in this matter were irregular. The resolution of necessity should have been adopted, and the notice thereof given, as provided in the statute. But it has been repeatedly held that such resolution and notice are not essential to give jurisdiction to the council, provided only that notice and a hearing are given to the property owner before the making of the final assessments. This notice and hearing were had in the case at bar. In the carefully considered case of Paving Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436, it was said that: “Where the whole subject of the matter of local improvements, and the assessments to be made in aid thereof, are conferred upon municipal corporations having charge of and exclusive original jurisdiction over such improvements, as in this state, the proceedings of such corporations will not be held void where there has been an attempt to comply with a statutory requirement, though such attempt does not amount to a strict compliance with the statute, if the corporation, in addition to its jurisdiction over the subject-matter, acquires jurisdiction over the persons to be affected.” And again: “As to whether a particular improvement is or is not necessary must of necessity be left to the discretion of the common council of the city...