Laverty v. State ex rel. Hill
| Decision Date | 11 January 1887 |
| Docket Number | 12,596 |
| Citation | 9 N.E. 774,109 Ind. 217 |
| Parties | Laverty v. The State, ex rel. Hill, Drainage Commissioner |
| Court | Indiana Supreme Court |
From the Vermillion Circuit Court.
The judgment is affirmed, with costs.
S. D Puett, H. E. Hadley and V. Carter, for appellant.
D. H Maxwell and H. Daniels, for appellee.
This suit was commenced in the Parke Circuit Court by appellee's relator, as drainage commissioner of Parke county, to collect a balance alleged to be due on certain assessments, for the construction of a ditch or drain, by enforcing the statutory lien thereof on certain real estate particularly described, in such county, owned by appellant.
After the cause was put at issue, the venue thereof, on appellant's motion, was changed to the court below. There, the issues joined were heard by the court, and a finding was made in favor of appellee's relator, in the sum of $ 1,718.11, that, as drainage commissioner, he had a lien under the statute on the real estate described in his complaint to secure the payment of such sum of money, and that such lien ought to be foreclosed. Over appellant's motion for a new trial, the court made and entered a decree in the relator's favor, substantially in accordance with its finding herein.
The relator's complaint is challenged by appellant only by his assignment here, as error, that it "does not state facts sufficient to constitute a cause of action." A demurrer to the complaint, for the alleged want of sufficient facts, was overruled below, but no exception was saved to this ruling, and, of course, even if it were erroneous, this ruling would not be an available error for the reversal of the judgment. Appellant's assignment of error here, that "the complaint does not state facts sufficient to constitute a cause of action," is authorized, impliedly at least, by the provisions of section 343, R. S. 1881, to the effect, substantially, that an objection to the complaint, on that ground, shall not be deemed to have been waived by the failure of the party merely to make such objection, either by demurrer or by an answer. But it must be borne in mind that such an assignment of error questions the sufficiency of the facts alleged to constitute a cause of action, after they have been strengthened by the curative virtues of the verdict or finding thereon, and when they are aided and supported by all the presumptions indulged by this court in favor of the rulings and decisions of the trial court. When thus questioned, it must appear that material facts, essential to the existence of the cause of action attempted to be stated, have been wholly omitted from the complaint, before this court would be authorized to reverse the judgment below for any error predicated on such complaint. Baltimore, etc., R. R. Co. v Kreiger, 90 Ind. 380; Kinney v Dodge, 101 Ind. 573; Smith v. Smith, 106 Ind. 43, 5 N.E. 411.
In his complaint, appellee's relator alleged that at the ----- term, 188-, of the Parke Circuit Court, Joseph J. Daniels, Aquilla Laverty and others, after due notice given of more than twenty days, filed their petition in such court asking an order for drainage, which petition upon proper showing was granted, and the drainage commissioners were ordered to view the proposed work, and make report thereof to such court; that such drainage commissioners made their report, which was favorable to such petitioners, and determined upon the method of drainage, and established the termini, route, location and character of the proposed ditch, and the assessments for benefits and injury to the several tracts of land mentioned in such petition, which report was approved and confirmed by such court, and a copy of such report was filed with and made a part of such complaint; and that thereupon the work prayed for was ordered by such court, and appellee's relator was, by such court, ordered and directed "to construct and make the proposed work."
And the relator averred that afterwards, to wit, on the day of -----, 188-, by publication in the "Rockville Republican," a weekly newspaper published in such county of Parke, such relator gave notice to appellant of his having been assessed, in the aggregate sum of $ 6,903.58, on his several tracts of land mentioned in such petition, as benefits by the construction of the work prayed for and ordered; that the relator also gave appellant notice in person, that, in thirty days from the dates of the notices so given, such relator would call on appellant for twenty per cent. of such sum, and, on each successive thirty days thereafter, would call on him for a like sum, until the whole amount should have been paid, and that he would give appellant notice of the times and places of such payments, in person or by written notice; that the relator also filed in the recorder's office of such county of Parke his notice (whereof a copy was filed with and made a part of such complaint) of the lien of said several assessments against appellant's tracts of land, situate in Parke county, and severally described as follows: (Description omitted.)
The relator further averred that he only in person gave such notices, and, in accordance therewith, called upon appellant at the stated times, after the lapse of thirty days, for the several percentage amounts, on such total assessments, as they became due after such notices respectively, until he had so called for the sum total of the original assessments; that, for the purpose of the completion of the work and to pay for the work completed, it was necessary that the balance of such assessments should be collected; that of the aggregate original assessment of $ 6,903.58, appellant had paid the sum of $ 5,315.41, leaving a balance due of $ 1,588.17, as the sum necessary to make the full amount assessed; that such balance of $ 1,588.17 appellant had wholly failed and refused to pay, and that such sum remained due and wholly unpaid. Wherefore, etc.
In discussing the alleged insufficiency of the relator's complaint, appellant's counsel say:
"All these facts were necessary," appellant's counsel say, "in order to confer jurisdiction on the court ordering the improvement; and, in a proceeding to enforce a lien for such improvement, the complaint must show them, so that the trial court may know whether or not such court had jurisdiction."
In support of their position, counsel cite and rely upon Scott v. Brackett, 89 Ind. 413, and it must be conceded that the opinion of the court in that case seemingly, at least, sanctions and supports the views and claims of counsel. That case, however, differs from the one we are now considering in one important and controlling particular. In that case, the appellants made a direct attack upon the validity of the proceedings and judgment for the establishment of the ditch, by their petition or written motion, for causes stated therein, to vacate the proceedings and set aside the judgment. The case in hand, however, is strictly collateral to the suit or proceeding, mentioned in the relator's complaint, for the establishment of the ditch. As applied to the relator's...
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