Kennedy v. State
| Decision Date | 12 January 1887 |
| Parties | Kennedy v. State, for Use, etc. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Morgan county.
Jordan & Matthews, for appellant. Grubbs & Parks, for appellee.
The first error assigned by appellant, the defendant below, upon the record of this cause, is the overruling of his demurrer to the second paragraph of appellee's complaint. The second paragraph, as it is called, is the only complaint in the record of this cause, and, for the sake of brevity, it will be spoken of as the complaint, in this opinion.
In his complaint, appellee's relator alleged that he was one of the drainage commissioners of Morgan county; that on the twenty-fourth day of April, 1883, Joshua Wooden, a resident freeholder of Morgan county, filed his petition in the court below, praying for the construction of a ditch or drain extending into the townships of Adams and Gregg, in such county, describing therein the beginning, course, and terminus, the utility and purpose, of the same, and the lands to be affected, with the names of the owners whose lands would be benefited by the construction of such ditch; that such proceedings were then and there had that the court, having found such petition to be sufficient, ordered that it be referred to the drainage commissioners of such county, to-wit, William H. Miller and Solomon Dorsett, the relator herein; that said commissioners, after inspecting the beginning, course, and terminus, and all the lands that would be affected by the proposed ditch, as provided by law, and, having assessed the benefits and damages to all lands affected, on the twenty-eighth day of September, 1883, filed their report in open court, a copy of which report, with such assessments therein, was filed with and made a part of the complaint. Here a certified transcript of the proceedings of the court below, on September 28, 1883, on the petition of said Joshua Wooden, is set out in the body of the relator's complaint herein, containing, among other things, the report of the drainage commissioners, with their assessments of benefits and damages, and the judgment of the court establishing the proposed ditch, and approving and confirming the assessments made by said commissioners, and directing the relator, Solomon Dorsett, one of such commissioners, to construct and make the proposed ditch. It is shown by this transcript that certain described real estate was assessed with benefits in the name of appellant, Kennedy, to the aggregate amount of $80.
It was further alleged by the relator that, among the lands set out in Wooden's petition, and in such report of the drainage commissioners, as benefited by the construction of the proposed ditch, were the following lands owned and occupied by appellant Kennedy, in Morgan county, to-wit, (description omitted;) that the benefits assessed by said commissioners against such lands, and made part of their report, and approved by the court, amounted to the sum of $80; that, under and pursuant to the order of the court, the relator had proceeded with the construction of such ditch, and then had the same about completed in accordance with such order; that relator had made assessments against the lands embraced in such order, including those of appellant, ratably upon the amounts assessed by the drainage commissioners, and adjudged by the court, for the construction of such ditch, and that he gave notice of such assessments by publication thereof in the Martinsville Republican, a paper of general circulation in Morgan county, and by personal notice to the appellant; that the whole of the benefits assessed against all of such lands, and against appellant's lands, were found to be necessary for the construction and completion of the proposed ditch; that he made an assessment of the entirety of said sum of $80 against the appellant, and gave him notice of the time and place when and where the several installments were required to be paid, but that appellant had...
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