Jones v. Cardwell

• Decision Date: 22 November 1884
• Docket Number: 11,725
• Citation: 98 Ind. 331
• Parties: Jones et al. v. Cardwell et al
• Court: Indiana Supreme Court

98 Ind. 331

Jones et al. v. Cardwell et al

No. 11,725

Supreme Court of Indiana

November 22, 1884

From the Tipton Circuit Court.

Judgment affirmed.

J. C Blacklidge and W. E. Blacklidge, for appellants.

G. H Gifford, R. B. Beauchamp, D. Waugh and J. P. Kemp, for appellees.

OPINION

Elliott C. J.

The complaint alleges that appellant Matthew M. Jones is the owner of the northeast quarter of section 34, township 22 north, of range 3 east, and that the appellant Morton Jones is the owner of the southeast quarter of that section; that in 1880 a petition was filed for the establishment of a ditch, and viewers appointed, who, in January, 1881, reported in favor of the ditch, and an order was made approving the report; that the report of the viewers contained, among others, the following provision: "We have set apart to the following parcel of land, to wit, the northwest quarter of section 34, township 22 north, of range 3 east, owned by Matthew M. Jones, and the southeast quarter of the above named section, the first named piece of land being assessed $ 60, and the second being assessed $ 133, all of said land being owned by Matthew M. Jones." It is also alleged that the plaintiffs were not named nor the land described in either of said reports, or in any of the records of said board, except as shown in the report of the viewers, and that the assessment is void because it is laid against the whole of the land, and not against the parts owned by the plaintiffs severally. It is further alleged that Matthew M. Jones owns but one-half of the land; that Morton Jones never had any notice of the proceedings, and the board never had jurisdiction over him or his lands, nor was any notice given to him throughout all of the proceedings.

It must be presumed that one of the appellants, Matthew M. Jones, did have notice, for the contrary is not averred, and the legal presumption is that the public officers did their duty. As to this appellant there was notice, and if he had notice we can not hold the proceedings void as to him. If neither of the appellants had been notified as the law requires, then doubtless the proceedings would have been void as to both. Town of Cicero v. Williamson, 91 Ind. 541; Wright v. Wilson, ante, p. 112; Vizzard v. Taylor, 97 Ind. 90; Young v. Wells, 97 Ind. 410. As one of the appellants was notified, the proceedings as to him are not void.

It has been decided in a very great number of cases that where the proceedings are not void an injunction will not lie. City of Terre Haute v. Beach, 96 Ind. 143; Cauldwell v. Curry, 93 Ind. 363; Hume v. Little Flat Rock, etc., Co., 72 Ind. 499; Caskey v. City of Greensburgh, 78 Ind. 233; Houk v. Barthold, 73 Ind. 21; City of Madison v. Smith, 83 Ind. 502; Schmidt v. Wright, 88 Ind. 56; Catterlin v. City of Frankfort, 87 Ind. 45; Ricketts v. Spraker, 77 Ind. 371; Grimwood v. Macke, 79 Ind. 100.

The complaint must be regarded as showing a cause of action in one only of the plaintiffs, for the proceedings are not void as to the one who had his day in court by virtue of due notice. The assessment may be irregular, but is not void. Where there is a cause of action in one only of two plaintiffs, the complaint is bad on demurrer, as has been many times decided. Headrick v. Brattain, 83 Ind. 188; Nave v. Hadley, 74 Ind. 155; Lipperd v. Edwards, 39 Ind. 165; Neal v. State, ex rel., 49 Ind. 51.

It may, perhaps, be true that the appellant Matthew M. Jones has a right to enjoin the collection of that part of the assessment not laid on his...