Low v. Dallas
| Decision Date | 26 October 1905 |
| Docket Number | 20,603 |
| Citation | 75 N.E. 822,165 Ind. 392 |
| Parties | Low et al. v. Dallas et al |
| Court | Indiana Supreme Court |
From Pulaski Circuit Court; Truman F. Palmer, Judge pro tem.
Suit by Charles Dallas and another against James E. Low and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
Warren W. Borders and George Burson, for appellants.
Henry A. Steis, for appellees.
This suit was brought by appellees to foreclose a statutory lien for street improvements made by them as contractors in the town of Medaryville.
Appellees' counsel asks that appellants' brief be rejected, because it is not signed at the conclusion of the statement of points and authorities, but only at the close of the argument, which is bound with the brief proper, and for the further reason that the propositions stated contain matters of fact rather than of law.
When the argument of counsel is bound with the required parts of a brief, and the whole signed by counsel, as in this case, the document is sufficiently authenticated to meet the requirements of the rule, and no useful purpose would be subserved by requiring an additional signature at the place suggested.
The manner of stating propositions for the consideration of this court must be left largely to the discretion and taste of counsel. Rules have been made and furnished for their guidance, and a failure to present questions in accordance with such rules may prevent their consideration; but in this case, the propositions stated indicate with sufficient certainty the points in dispute, and the objection to their form and substance is no ground for the rejection of the brief.
The assignment of errors is predicated upon the overruling of appellants' demurrer to the complaint, and the sustaining of appellees' demurrer to the second paragraph of answer.
It will be unnecessary to set out the complaint at length, as in form and substance it is like those heretofore held sufficient. It is insisted that no demand prior to bringing suit is alleged. The complaint avers "that more than ten days before the bringing of this suit, the plaintiffs notified said defendants in writing of said assessment and the amount thereof, with interest, and where the same was payable." This is all that the statute requires, and is clearly sufficient. Acts 1901, pp. 363, 364, § 3626a Burns 1901; Ross v. VanNatta (1905), 164 Ind. 557, 74 N.E. 10.
It is next urged that the complaint fails to show that appellants were given two weeks' time after the assessment was made within which to elect whether they would pay the same in instalments, or at once. The complaint shows that all notices required by law to make a valid assessment lien upon the property described were given, and proceeds upon the theory that appellants failed to exercise their option to pay such lien in instalments. From the averments of the complaint it appears that the assessment was due; and if appellants took the steps necessary to secure to themselves the right to pay the same in instalments, they should have alleged the facts by way of answer.
It is further suggested that it is nowhere alleged that the orders and resolutions mentioned were made a part of the records of the town of Medaryville. It is presumed that public officers do their duty, and it is unnecessary, in an action to foreclose a street assessment lien, to state in the complaint in minute detail every step in the proceedings creating the lien. The complaint was sufficient, and appellants' demurrer thereto for want of facts was correctly overruled.
Appellants' second paragraph of answer was as follows: "And for a second and further answer to the complaint the defendants say: The plaintiffs ought not to recover anything on the claim sued on, nor should the...
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