Lux & Talbott Stone Co. v. Donaldson

• Decision Date: 24 November 1903
• Docket Number: 20,038
• Citation: 68 N.E. 1014,162 Ind. 481
• Court: Indiana Supreme Court
• Parties: Lux & Talbott Stone Company v. Donaldson et al

68 N.E. 1014

162 Ind. 481

Lux & Talbott Stone Company v. Donaldson et al

No. 20,038

Supreme Court of Indiana

November 24, 1903

Rehearing Denied April 8, 1904.

From Cass Circuit Court; J. M. Rabb, Special Judge.

Action by the Lux & Talbott Stone Company against Albert N Donaldson and others. From a judgment for defendants plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

J. C. Nelson, Q. A. Myers, S. T. McConnell, A. G. Jenkines, B. C. Jenkines and C. H. Stuart, for appellant.

M. Winfield, D. B. McConnell, J. W. McGreevy, C. E. Hale and George Gamble, for appellees.

OPINION

Dowling, J.

Action to enforce the collection of a final assessment for the improvement of a street in the city of Logansport. The right to recover such assessment was denied and contested on various grounds. A trial by the court resulted in a general finding and judgment for the appellees, who were the defendants below. Demurrers to eight paragraphs of the answer of the appellees were overruled, and demurrers to four paragraphs of appellant's reply were sustained. Appellant's motion for a new trial was denied.

An assignment of cross-errors calling in question the ruling of the trial court upon a motion to make the complaint more certain, upon a demurrer to the complaint for want of facts, and upon appellant's demurrers to the twelfth, thirteenth, fourteenth, and fifteenth paragraphs of appellees' answer, was filed by appellees; and we are asked by them to consider the sufficiency of the complaint before proceeding to examine the errors assigned by the appellant. We find, however, upon an inspection of the record, that the cross-errors are not before us. Rule twenty-one of this court, adopted January 4, 1900, and in force from and after November 26, 1900, requires that "if cross-errors are assigned, the appellee shall file his brief thereon within sixty days from the date of the cross-assignment, or the same will be stricken out." The cross-assignment of errors in this case was filed by the appellees November 9, 1901. The briefs for appellees upon the cross-assignment were not filed until January 16, 1902, or sixty-eight days after the filing of the cross-assignment. Under the rule, supra, the clerk should have refused to receive the briefs, and the cross-assignment should have been stricken out. Carriger v. Kennedy, 134 Ind. 107, 33 N.E. 909; Loucheim v. Seeley, 151 Ind. 665, 43 N.E. 646; Leatherman v. Board, etc., 148 Ind. 282, 47 N.E. 458; Manns Brothers, etc., Co. v. Templeton, 149 Ind. 706, 44 N.E. 1108; State v. Van Cleave, 157 Ind. 608, 62 N.E. 446; Ewbank's Manual, §§ 21, 179. In consequence of the failure of appellees to comply with rule twenty-one, supra, the cross-assignment of errors is stricken from the record, and the filing of the briefs upon such cross-assignment is set aside.

Nor are we at liberty, in the present state of the record, to carry the appellant's demurrers to the answers back, and sustain them to the complaint, if that pleading should be found insufficient. If a party relies upon a supposed error of the court in failing to carry back a demurrer and sustain it to a pleading of an adversary, he should assign such failure as error; otherwise no question is presented in this court. Peters v. Banta, 120 Ind. 416, 22 N.E. 95; Baldwin v. Sutton, 148 Ind. 591, 47 N.E. 629; Elliott, App. Proc., §§ 186, 306; Queen Ins. Co. v. Hudnut Co., 8 Ind.App. 22, 35 N.E. 397; Eubank's Manual, § 127.

We now proceed to an examination of the errors assigned on the rulings of the court upon the demurrers to the 1st, 2d, 3d, 5th, 6th, 7th, 8th, and 11th paragraphs of appellees' answers.

1. The first of these alleged that the work was not done by the appellant according to the contract and that, in consequence of the manner in which it was executed, and the character of the materials used, the improvement was worth only one-half what it would have been had the terms of the agreement been complied with by appellant. This paragraph admits that the work was approved and accepted by the common council, but attempts to avoid the effect of this confession by averments that the city civil engineer and the street committee combined and conspired with the appellant to permit such defective work to be done, and such inferior materials to be used, and to deceive the common council and secure the approval and acceptance of said work and material; that the said parties did so deceive the common council; and that the approval and acceptance of the work were thereby secured.

The acceptance of the improvement by the common council, in the manner prescribed by the statute, after the completion of the work, was conclusive upon the property owner, so far as the character of the work done and materials used were concerned. In such case, in the absence of fraud, the property owner cannot be heard to say, by way of defense to a suit to collect the assessment, that the work was not done according to the contract. Cooley, Taxation, 468; Elliott, Roads & Sts., 416; Holloran v. Morman, 27 Ind.App. 309, 59 N.E. 869; DePuy v. City of Wabash, 133 Ind. 336, 32 N.E. 1016; Cason v. City of Lebanon, 153 Ind. 567, 55 N.E. 768; Darnell v. Keller, 18 Ind.App. 103, 45 N.E. 676; City of Bloomington v. Phelps, 149 Ind. 596, 49 N.E. 581; Gorman v. State, ex rel., 157 Ind. 205, 60 N.E. 1083.

In Robinson v. City of Valparaiso, 136 Ind. 616, 619-- a proceeding by a property holder for an injunction--this court said: "The complaint goes on to specify defects in the work. But this matter is placed by law in the hands of the council; and their judgment thereon cannot be questioned in this collateral attack. The law itself provides a method by which any wrong done any property owner may be rectified."

And again, in McEneney v. Town of Sullivan, 125 Ind. 407, 410, 25 N.E. 540, the court, by Elliott, J., said: "The attack made upon the proceedings of the corporate officers is a collateral one, and it is well settled that upon such an attack only defects or irregularities affecting the jurisdiction can be made available. Any other rule would break down the distinction between collateral and direct attacks and open the way to great wrongs and abuses. But upon this question the authorities are quite well agreed; indeed, the only phase of the question upon which there is diversity of opinion is as to what shall be considered jurisdictional facts. Our own cases uniformly hold that upon such an attack as the present only such questions as affect the jurisdiction can be considered. Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795, and cases cited; Jackson v. Smith, 120 Ind. 520, 22 N.E. 431, and cases cited; Barber Asphalt Pav. Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436."

Unless the allegations of fraud were sufficient to take the case out of the general rule that acceptance of the improvement by the common council is conclusive upon the property owner, the first paragraph of the answer is bad. The only averments relating to the supposed fraud were that the appellees called the attention of the city civil engineer and the street committee in charge of the improvement to certain defects in the work, and the noncompliance of the appellant with the contract; that, upon a hearing before the committee, they made proof of the same, but that the committee disregarded the evidence and concealed the facts from the common council; that the committee assured the common council that the work had been done according to contract; that the civil engineer and the street committee combined and colluded with the appellant to do said inferior work, to furnish said inferior material, and to deceive the common council and secure the approval and acceptance of the work.

These allegations amount to nothing more than a charge that certain irregularities occurred previous to the final hearing before the common council. At that hearing, the appellees had the opportunity to present every legal objection to the report of the committee, including all accusations of fraudulent conduct on the part of the committee, the civil engineer, and the contractor. If they failed to object to the report on these grounds, or, if the common council, upon the hearing, adopted the report, then, unless fraud in the action of the common council itself was properly alleged in the answer, the previous misconduct of the committee and the civil engineer would not vitiate the action of the common council, and would constitute no defense to a suit to enforce the lien of the assessment. Acts 1891, p. 324, § 2, § 4294 Burns 1894.

The first paragraph of the answer contained no averment of fraudulent conduct on the part of the common council at the hearing upon the report of the committee, or in the enactment of the order for the assessment. Consequently it was insufficient, and the demurrer to it should have been sustained. Darnell v. Keller, 18 Ind.App. 103, 45 N.E. 676; Shank v. Smith, 157 Ind. 401, 412, 55 L. R. A. 564, 61 N.E. 932.

2. The second paragraph of the answer is very similar to the first. An attempt is made, however, to charge the common council with fraud in its proceedings for the adoption of the report of the committee and the acceptance of the improvement. The answer admitted that a hearing was given the appellees by the common council agreeably to the requirement of the statute and that they produced their witnesses and submitted their evidence to that body; but it was also averred that the common council disregarded the evidence and accepted the work, and that the appellant combined and colluded with the city civil engineer and certain influential members of the common council, and thereby procured the acceptance of the said work. There is no statement of any fact or...