Jackson v. Dyer

• Decision Date: 15 December 1885
• Citation: 3 N.E. 863,104 Ind. 516
• Parties: Jackson v. Dyer, Com'r, etc.
• Court: Indiana Supreme Court

104 Ind. 516

3 N.E. 863

Jackson

v.Dyer, Com'r, etc.¹

Supreme Court of Indiana.

Filed December 15, 1885.

Appeal from Howard circuit court.

John W. Kern, B. F. Harness, and Blacklidge & Blacklidge, for appellant.

M. Garregus, for appellee.

ELLIOTT, J.

The appellee's complaint seeks to enforce a drainage assessment levied under the act of April 8, 1881. The sufficiency of this complaint is challenged upon two grounds: First, that there was not such notice as the statute requires, for the reason that there was but 19 days' notice instead of 20, as the statute requires; second, that it fails to show that the appellant or his grantor was a party to the original proceedings.

Of these in their order. First. There was notice, and, although defective, the order based upon it was not void. This doctrine is affirmed in many cases. Quarl v. Abbett, 102 Ind.; S. C. 1 N. E. Rep. 476; Brown v. Goble, 97 Ind. 86, see authorities, page 89; City v. Beach, 96 Ind. 143;McCormick v. Webster, 89 Ind. 107;Million v. Board, etc., 89 Ind. 6,vide page 12; Oppenheim v. Pittsburg, etc., Co., 85 Ind. 471;Stout v. Woods, 79 Ind. 108;McAlpine v. Sweetser, 76 Ind. 78;Hume v. Conduitt, Id. 598; Muncey v. Joest, 74 Ind. 409. The general rule is thus expressed in Morrow v. Weed, 4 Iowa, 77: “If there be a notice or publication, or whatever of this nature the law requires in reference to persons or other matters, its sufficiency cannot be questioned collaterally.” This doctrine was reaffirmed by the same court in Bonsall v. Isett, 14 Iowa, 309, and in Ballinger v. Tarbell, 16 Iowa, 491. The great current of authority runs in favor of this doctrine. Hendrick v. Whittemore, 105 Mass. 23;Cook v. Darling, 18 Pick. 393;Finneran v. Leonard, 7 Allen, 54;Wright v. Marsh, 2 Greene, 94;Paine v. Mooreland, 15 Ohio, 436;Borden v. State, 11 Ark. 519;Sheldon v. Wright, 5 N. Y. 497;Delaney v. Gault, 30 Pa. St. 65; Callen v. Ellison, 13 Ohio St. 446;People v. Hagar, 52 Cal. 171. It has long been the rule in this state that where a court is required to determine whether facts essential to jurisdiction exist, a judgment that they do exist will be conclusive as against a collateral attack. Evansville R. R. v. Evansville, 15 Ind. 395. It was said in that case: “It is a well-settled principle that where the jurisdiction of an inferior court depends upon a fact which such court is required to ascertain and settle by its decision, such decision is conclusive.” The doctrine of that case has been repeatedly asserted, and we cite only a few of the many cases that have adopted and enforced it. Forsythe v. Kreuter, 100 Ind. 27;Young v. Wells, 97 Ind. 410;Smith v. Hess, 91 Ind. 424;Million v. Board, etc., 89 Ind. 16, and authorities cited, page 14; City of Madison v. Smith, 83 Ind. 513;Marshall v. Gill, 77 Ind. 404. This rule is well supported by the decisions of other courts. Grignon's Lessee v. Astor, 2 How. 319;Riley v. Waugh, 8 Cush. 220;Cooper v. Sunderland, 3 Iowa, 114;Henderson v. Brown, 1 Cai. 92;Vail v. Owen, 19 Barb. 22;Youngman v. Elmira & W., etc., R. R., 65 Pa. St. 278; Sheldon v. Wright, supra. These cases proceed on the theory that the court has authority to decide all questions, whether affecting the jurisdiction or other matters, and this is the only logical ground upon which they can be maintained. If it be conceded that the court does not, by its decision, determine the sufficiency of a notice, then it must also be conceded that these cases are wrongly decided, and this would result in the overthrow of a long and unwavering line of decisions. Once it is granted that these decisions are sound, then the conclusion that the court may settle jurisdictional questions is inevitable. Of course this rule cannot apply where there is no jurisdiction of the subject-matter, or where there is no notice or summons, but it does apply in all cases where there is some notice, or some writ and service, although defective.

The appellant's counsel are unfortunate in the citation of Taylor v. Conner, 7 Ind. 115, for the statement of the judge which seems to favor their position, was, as the opinion shows, repudiated by the court. Where the statute prescribes what the character of the notice shall be, then mere information conveyed to the defendant in a manner wholly unauthorized cannot be deemed sufficient to confer jurisdiction. The notice must assume to be such as the law requires, but, in order to repel a collateral attack, it need not be a valid notice. Morrow v. Weed, 4 Iowa, 77. To hold otherwise would be to break down the distinction between direct and collateral attacks. All that Vizzard v. Taylor, 97 Ind. 91, can be regarded as deciding upon this question is that there must be some notice, and that it is not sufficient that mere information is conveyed to the party in a manner wholly unauthorized by law. As shown in Young v. Wells, 97 Ind. 410, and in Albertson v. State, 95 Ind. 370, the case of Scott v. Brackett, 89 Ind. 413, was a direct attack by appeal, and that decision cannot apply to a collateral attack. In the case of Albertson v. State the court quoted the provision of the statute that “collections of assessments shall not be defeated by reason of any defect in the proceedings prior to the judgment of the court confirming and establishing the assessments of benefits and injuries, but such judgment shall be conclusive that all prior proceedings were regular and according to law,” and held that an action to collect the assessment could not be defeated upon the ground that the complaint does not aver that notice of the petition was given. The reason for this ruling is that the attack made upon the complaint is a collateral and not a direct one. Young v. Wells, supra, affirms a like principle. These decisions do not, of course, affect defenses arising subsequent to the judgment of the circuit court, for they cannot be deemed adjudicated, but, by force of the statute, and under the general rules of law referred to, matters affecting the power of the court are adjudicated.

We come now to the second objection urged against the complaint, namely, that it does not aver that the appellant or his grantor was named in the petition filed in the original proceedings. We have no doubt that the petition must name the land-owners whose deeds are of record, and this we have often decided. Troyar v. Dyer, 102 Ind. 396; S. C. 1 N. E. Rep. 728; Vizzard v. Taylor, supra;Wright v. Wilson, 95 Ind. 408;Young v. Wells, supra. The court can only have jurisdiction of persons who are made parties to the proceedings in the method prescribed by law, and it is upon this theory that these cases proceed. Judgments bind only such persons as are made parties, for the reason that it is only of parties that the court has jurisdiction. Where the law requires persons to be made parties by naming them in the petition, that method must be substantially pursued, although a mere error or irregularity would not make the judgment void. These cases do not, as counsel assume, proceed on the theory that a defective petition may be questioned collaterally, or that any defect or irregularity may be made available in a collateral attack to impeach the judgment, but they proceed on the theory that the complainant was not a party to the proceeding. We regard some notice as indispensable; so much so, that it cannot be dispensed with by the legislature. Campbell v. Dwiggins, 83 Ind. 473;Wishmier v. State, 97 Ind. 160;Neiman v. State, 98 Ind. 58;Strosser v. City of Fort Wayne, 100 Ind. 443, see page 446; Baltimore, etc., Co., v. North, 3 N. E. Rep. 144; Troyar v. Dyar, supra; Jackson v. State, 2 N. E. Rep. 742, (October 16, 1885;) Hobbs v. Board of Com'rs, 3 N. E. Rep. 263, (November 17, 1885.) But where the court adjudges that notice has been given, this implies notice to all the proper parties until the contrary is shown, even in cases where the finding in jurisdictional questions may be collaterally attacked. The assumption of jurisdiction and the entering of a decree or judgment is an adjudication upon the question of notice without any formal or express declaration to that effect. Carr v. State, 3 N. E. Rep. 375, (November 20, 1885;) Cauldwell v. Curry, 93 Ind. 363;Board, etc., v. Hall, 70 Ind. 469. In this case there was an assumption of jurisdiction and a judgment, hence there was an adjudication of...