Lewis v. Albertson

• Decision Date: 24 May 1899
• Docket Number: 2,702
• Parties: LEWIS v. ALBERTSON ET AL
• Court: Indiana Appellate Court

53 N.E. 1071

23 Ind.App. 147

LEWIS v. ALBERTSON ET AL

No. 2,702

Court of Appeals of Indiana

May 24, 1899

Rehearing denied October 27, 1899.

From the Lawrence Circuit Court.

Affirmed.

John D Alexander, James H. Willard, R. W. McBride and C. S. Denny for appellant.

T. J. Brooks, W. F. Brooks, B. K. Elliott and W. F. Elliott, for appellees.

OPINION

COMSTOCK, J.

Appellees instituted this action to foreclose a lien for improvement of H street in the city of Bedford. At the request of appellant the court made a special finding of facts and stated conclusions of law thereon. Upon such conclusions judgment was rendered in favor of appellees.

The cause was appealed to the Supreme Court. The able and elaborate brief of appellant filed in that court did not question the constitutionality of the law under which the improvements and assessments in question were made. The action being for the enforcement of a lien of purely statutory origin, and the amount not exceeding $ 3,500, the Supreme Court, under the statute, transferred the cause to this court. In their reply brief, filed since such transfer, appellant discusses the constitutional question. Having failed to present the question in the only tribunal having jurisdiction, in the tribunal of her own selection, for the purpose of this appeal, it must be deemed to have been waived. As said by Rheinhard, J., speaking for the court in Town of Andrews v. Sellers, 11 Ind.App. 301, 303, 38 N.E. 1101: "At all events, the order of transfer settles the question of jurisdiction in favor of this court."

We will pass upon the questions discussed of which this court has jurisdiction in the order in which they are presented. In her original brief appellant first discusses the second error assigned, viz., the overruling of appellant's motion to require appellees to make their complaint more specific. This motion set out seventeen specifications. We will consider those only that are discussed.

The second request asked that the complaint be made to state whether the various actions taken by the common council of the city of Bedford were had and taken at a regular or a special meeting of the council, and if at a special, what was the purpose of the meeting. Appellant cites no authority requiring such proceedings to have been had at a regular meeting.

The third (numbered fourth in appellant's brief) asked that the complaint state when the plans and specifications referred to therein were adopted, and to make a copy of them exhibits.

In Dugger v. Hicks, 11 Ind.App. 374, the court held that plans and specifications are no part of the cause of action.

The fifth request (numbered sixth in appellant's brief) asked that the complaint be made to show what title to the street, if any, the city of Bedford had at the time of the adoption of the resolution for the improvement (August 7, 1894), and, if it had title, to state the width of the street so owned. If there was a public street in the city of Bedford of the name designated in the resolution, its width and the title were not material in this action. Dugger v. Hicks, supra. Elliott on Roads and Streets, at page 380, says: "If * * * the local authorities were attempting to construct a road or street over property where they had neither acquired nor could lawfully acquire the right to lay out a road or street," the property owner "might, if he moved in time and in an appropriate way, prevent the enforcement of the assessment against his property. But if he should delay until after the work had been done, he could not succeed. "

The eighth and ninth requests ask that the complaint state the date at which the common council ordered the bids to be received, the date at which the contract mentioned in the complaint was entered into between the city and appellant, and the nature and terms of the contract, and what were the specifications of the same in full. The contract need not be made a part of the complaint; the assessment is the foundation of the action. Dugger v. Hicks, supra. The complaint shows that the contract was awarded to plaintiff on November 20, 1894, and that plaintiff has improved said street in all things complying with the resolution and order of improvement, and that on the 3rd of September, 1895, the improvement was accepted by the city engineer and the common council from the plaintiff, and the city engineer was ordered by said council to make and report a final estimate of the cost of said improvement, as by statute provided; that on the 10th of September, 1895, the engineer reported to the council a final estimate, which was filed, and referred to an appropriate committee, etc. When approved, this estimate became an assessment. New Albany Gas, etc., Co. v. Crumbo, 10 Ind.App. 360, 37 N.E. 1062.

The sixteenth request (numbered seventeen in appellant's brief) asks that the contract and specifications be made a part of the complaint as an exhibit. In actions of this kind it is not necessary in the complaint to set out all the details of the work. Dugger v. Hicks, supra. The complaint alleges that the plans and specifications were on file in the office of the city engineer. Appellant had access to them. Appellant was not prejudiced by the rulings of the court on the motion to make more specific. Courts will require a complaint to be made more definite and certain when the precise nature of the charge is not apparent. The complaint is sufficiently certain and definite to make the charge apparent. Alleman v. Wheeler, 101 Ind. 141.

The sixth specification of error questions the action of the court in overruling the demurrer to the amended second paragraph of reply. The objection made to this paragraph is that it does not state the time of the beginning of the work nor any fact which shows knowledge on the part of the defendant (appellant) regarding it. It does not appear from the record that a demurrer was filed to this pleading. A demurrer was filed to the original second paragraph, but yet we think it sufficient to withstand a demurrer. It was pleaded as an estoppel. It states that the plaintiffs entered into the contract for the improvement of H street in the city of Bedford, as set out in the complaint; that all the proceedings "had been had and done" by the common council of said city as set out in said complaint. That under and by virtue of said contract "the plaintiffs entered upon said street and the work of improving the same according to their said contract, and under the direction, supervision, and control of the city civil engineer of said city, on the day of March, 1895. That they employed a large number of teams, men, tools, implements, etc., continuously on said street until the 3rd day of September, 1895, when the same was completed, and was accepted by the city civil engineer and common council of said city. That in the improvement of said street, in labor, material, and other necessary expenses, they expended the sum of $ 20,000. The defendant, during all the times named in said complaint, and all the times during which said proceedings were had and the work thereunder and under said contract was being done and performed, lived in the city of Bedford, on said street, within plain view of the same, and of the work aforesaid, saw the same was being done, had knowledge of the same, saw the said work and improvement going on, saw said expenditures being made, had full and complete knowledge of the same, made no objection whatever to said improvement, to said work, its order by the council, the beginning of the same, or its prosecution. Plaintiffs say that they have fully done and performed all the conditions of said contract with said city in good faith, believing that said proceedings were valid and regular, and knowing of no objection on the part of this defendant, or any other person to said proceedings, to said contract, or the improvement thereunder, or that the same were irregular. Wherefore plaintiffs demand judgment." This paragraph is certainly good so far as any objections are pointed out by appellant.

Appellant discusses the seventh and ninth specifications of errors together. The seventh challenges the action of the court in overruling appellant's objection to the jurisdiction of the court, and a motion for the continuance of the cause. The ninth challenges the action of the court in overruling her motion in arrest of judgment. In support of the seventh specification, appellant claims that Judge Hefron, before whom the cause was tried, had no authority to act, and that the adjourned term was illegal because called by a special judge. Appellant's original brief, in which these alleged errors are discussed, was written before the transcript was amended under the writ of certiorari. Some of the objections do not apply to the record as amended. The record shows that on the 30th day of November, 1896, Judge Martin (the regular judge) being disqualified, appointed S. B Voyles, judge of the forty-second judicial circuit of Indiana, special judge to try this cause. On December 7, 1896, Judge Hefron of the forty-ninth judicial circuit was appointed to try it, the record of appointment being signed by Judge Martin and Judge Voyles. An adjourned term was thereafter ordered, beginning December 21, 1896, during which the trial of said cause was to be held by said Hefron, Judge as aforesaid, and the clerk of the court was ordered and did give notice of the holding of the adjourned term by publication one week each in a daily and weekly newspaper of general circulation printed in said county of Lawrence, signed by William H. Martin, Judge. It thus appears that the adjourned term was called by the regular judge; that the record of appointment of Judge Hefron and the order for the adjourned term were...