Jackson v. Smith
| Decision Date | 31 October 1889 |
| Docket Number | 14,626 |
| Citation | 22 N.E. 431,120 Ind. 520 |
| Parties | Jackson v. Smith |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
Judgment affirmed.
J. E Moore, M. Garrigus and J. O'Brien, for appellant.
J. C Blacklidge, W. E. Blacklidge and B. C. Moon, for appellee.
This controversy arises out of the proceedings of the common council of the city of Kokomo ordering that walls be placed along the banks of a watercourse, which flows through the city and is part of its system of drainage, and directing an assessment upon private property to pay the expense of making the improvement. The appellant seeks to quiet her title and asserts that the proceedings were absolutely void.
It will make our path the easier to travel if we first dispose of some matters which, although of a preliminary nature, are important. This action is a collateral and not a direct attack upon the proceedings, and, as has been held, again and again, if there was jurisdiction of the subject and the person it must fail, no matter how many or how grave the errors and irregularities that may have been committed. Montgomery v. Wasem, 116 Ind. 343, 15 N.E 795, and authorities cited. In the matter of local improvements jurisdiction is conferred upon municipal corporations over the whole subject of local assessments, and the common councils of those corporations are invested with exclusive original jurisdiction. Why those tribunals do not have general jurisdiction of the subject it is not easy to perceive, for no other tribunal can have original jurisdiction. It is true that the jurisdiction is statutory, but that is true of all our courts of original jurisdiction to a very great extent, and they can not be said to be--at all events it never has been judicially said that they are--courts of such limited jurisdiction as renders their judgments open to collateral attacks where there is authority to proceed at all, although there may be many errors; nor can it be justly said that where there is authority to proceed there is no jurisdiction, for the authority to proceed is jurisdiction. Board v. Markle, etc., 46 Ind. 96; State v. Commonwealth, 12 Peters 657; Dequindre v. Williams, 31 Ind. 444. It has, on the contrary, been often asserted that in such cases collateral attacks are unavailing. As jurisdiction is conferred over the whole subject of local assessments for local improvements in cities, it seems to clearly follow that in every case a local assessment is within the subject of the court's jurisdiction. We do not affirm that the particular case is always within the jurisdiction of the inferior tribunal, for there may be no authority over the person or the particular property involved in the particular case, but what we affirm is, that a local assessment is always within the subject of the tribunal's jurisdiction. In affirming this we do no more than affirm that where the tribunal has jurisdiction of a general class of cases, every case of that class is within the subject of the tribunal's jurisdiction, for by the term subject can only be meant cases of a general class. The circuit court has jurisdiction of actions for the recovery of real property, and every action of that character is within the subject of the court's jurisdiction, but it may often happen that the court has no jurisdiction over the subject of the particular action; as, for instance, the court may not have jurisdiction of the particular tract of land involved in the controversy. It remains true, nevertheless, in every instance of the kind mentioned, that there may be jurisdiction of the general subject of controversies respecting real property, and yet no jurisdiction of the subject-matter of the particular case. There is, therefore, a difference between the subject of the court's jurisdiction and the subject-matter of the particular action, for the subject of the court's jurisdiction is a class, but the subject-matter of a particular case is a single thing, not a multitude of things. Our cases, and there are many of them, which hold that where the case belongs to a general class over which a tribunal has jurisdiction, a judgment rendered in it is not absolutely void although the notice may be defective, or some steps may not have been taken that were necessary to fully impress regularity and legality upon the proceedings, are strongly intrenched in principle. Johnson v. State, 116 Ind. 374, 19 N.E. 298; Hobbs v. Board, etc., 116 Ind. 376, 19 N.E. 186; Otis v. DeBoer, 116 Ind. 531; Montgomery v. Wasem, supra; Prezinger v. Harness, 114 Ind. 491, 16 N.E. 495; Robinson v. Rippey, 111 Ind. 112, 12 N.E. 141; Strieb v. Cox, 111 Ind. 299, 12 N.E. 481; Pickering v. State, 106 Ind. 228, 6 N.E. 611; Argo v. Barthand, 80 Ind. 63; Ricketts v. Spraker, 77 Ind. 371. In Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501, effect was given to this general principle in proceedings to enforce an assessment for a street improvement ordered by a municipal corporation. The same general principle was recognized in City of Elkhart v. Wickwire, 121 Ind. 331, 22 N.E. 342, and held applicable in local assessments levied for the purpose of constructing a sewer.
The general conclusion which we here seek to deduce and apply is, that our decisions (which, as we believe, may be vindicated on the soundest principle) declare that where it appears that the case is one of a general class over which the tribunal has jurisdiction, that is, one within the subject of the tribunal's jurisdiction, the judgment is not absolutely void if the particular subject was within the territorial jurisdiction of the court, and there was jurisdiction of the person, although the statutory requirements may not all have been complied with by the tribunal or its officers. The application of this general conclusion to the case in hand authorizes the judgment that the assessment assailed was within the subject of the jurisdiction of the common council, and, therefore, it can not be declared void in this collateral attack unless it appears that there was no authority over the particular improvement ordered or the particular property assessed.
We come now to what may be regarded as the second of the preliminary questions. The appellant was not entitled to a general decree quieting title if any part of the assessment was due. It is a general principle of wide application, that one who seeks to save his title can not do so if a lien exists upon it unless he pays, or tenders payment of, the lien. City of Indianapolis v. Gilmore, 30 Ind. 414; Morrison v. Jacoby, 114 Ind. 84, 14 N.E. 546; City of Elkhart v. Wickwire, supra. We do not assert that in the proper case there may not be a qualified decree, that is, one preserving the lien, but declaring the fee to be in the plaintiff, but we do affirm that the appellant could not, if any lien existed, sweep it away by a general decree quieting title. The effect of such a general decree as against parties to the action is to sweep away all claims that cloud the title. Ragsdale v. Mitchell, 97 Ind. 458; Watkins v. Winings, 102 Ind. 330, 1 N.E. 638; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446.
The application which we here make of this principle is that we can not decide that the court below erred in giving judgment in the appellee's favor, unless we find the assessment to be utterly void, for if not void, the appellant has no right to a general decree. We do not decide whether irregularities will prevent the acquisition of title, but we do decide that they will not always render an assessment absolutely void. It may well be that the courts will establish a lien and yet not adjudge that title was acquired under the sale upon an assessment. It is a matter of frequent occurrence in cases arising out of sales for taxes, to deny that title passes and yet declare a lien. We make, and mark as distinctly as we can, a difference, between cases where the question is whether title passes and case...
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