Larimer v. Krau, No. 8776.

• Docket Nº: No. 8776.
• Citation: 103 N.E. 1102, 57 Ind.App. 33
• Case Date: January 29, 1914
• Court: Court of Appeals of Indiana

57 Ind.App. 33
103 N.E. 1102

LARIMER et al.
v.
KRAU, County Treasurer.

No. 8776.

Appellate Court of Indiana, Division No. 1.

Jan. 29, 1914.

Appeal from Circuit Court, Elkhart County; James Story Drake, Judge.

Suit by George A. Larimer and another to enjoin William P. Krau, Treasurer of Elkhart County, from collecting drainage assessments. Judgment for defendant, and plaintiffs appeal. Affirmed.

[103 N.E. 1103]

Ethan A. Dausman and Guy W. Dausman, both of Goshen, for appellants. Benjamin F. Deahl, Ray Deahl, and Anthony Deahl, all of Goshen, for appellee.

FELT, J.

This suit was begun by appellants to enjoin appellee, as treasurer of Elkhart county, Ind., from collecting certain drainage assessments levied against appellants' land in a proceeding before the board of county commissioners of Elkhart county. The court sustained a demurrer to the complaint for insufficiency of the facts alleged to constitute a cause of action against the defendant entitling the plaintiffs to the relief prayed. The plaintiffs refused to plead over, prayed an appeal from the judgment against them on the demurrer, and have assigned as error the sustaining of the demurrer to the complaint.

It is alleged in substance that plaintiffs George A. and Milton B. Larimer and one William T. B. Larimer, who is not a party to this suit, were and are the owners in fee simple, as tenants in common, of certain real estate in Elkhart county, Ind., which real estate is particularly described.

The complaint then avers in detail the filing of the drainage petition with the auditor of said county, and the several steps in the proceedings up to and including the making of the assessment, and placing the assessment against appellants' lands on the tax duplicate for collection. It is then charged that at the time of the filing of said drainage petition, and continuously thereafter, George A. Larimer was a nonresident of the state of Indiana, and said Milton B. Larimer was a nonresident of said Elkhart county. Also that: “No notice of any kind or character was given to the plaintiff George A. Larimer, nor to the plaintiff Milton B. Larimer, of the filing of said petition, or of the pendency of said proceeding, or of any of the steps taken or had in said cause; that said proceeding was conducted throughout, and said pretended assessments were made, reported, and approved, as aforesaid, without any notice of any kind or character thereof having been given to the plaintiff George A. Larimer or to the plaintiff Milton B. Larimer; that neither the plaintiff George A. Larimer nor the plaintiff Milton B. Larimer had any notice whatsoever of said drainage proceeding, nor of any step or action had or taken therein; and that neither of the plaintiffs in any manner or at any time appeared therein or thereto, nor in any manner whatsoever consented thereto, and that neither of the plaintiffs signed said drainage petition, and that said pretended assessments against said lands, and each and every portion thereof, is and are, separately and collectively, illegal and void.”

It is then averred that on the 10th day of September, 1908, said board of commissioners placed upon their records in said drainage proceeding the following entry: “The court having taken up this matter, and finding the petition regular in form, and the bond being sufficient, and notice having been served on all landowners affected who are not joined in said petition, the court now orders the petition docketed.” It is also averred that, as to plaintiffs, “said recital in said record is wholly false and untrue in every respect; that in truth and in fact no notice of any kind or character was served on these plaintiffs, or on any of them.”

The complaint contains the formal averments as to the proceedings to collect the assessments, and alleges “irreparable loss,” unless a restraining order is issued enjoining the defendant from proceeding to collect said assessments.

Appellants concede that the board of commissioners had jurisdiction of the subject-matter of the proceeding, but contend that it did not acquire jurisdiction over the person of appellants, because there was no notice to them as required by the statute in

[103 N.E. 1104]

such proceedings, and that for want of such notice the proceeding is void.

[1] This suit is a collateral attack on the record of the board of commissioners in the...