McKinney v. State

• Decision Date: 23 April 1885
• Docket Number: 12,028
• Parties: McKinney et al. v. The State, for the use of Nixon, Drainage Commissioner
• Court: Indiana Supreme Court

101 Ind. 355

McKinney et al. v. The State, for the use of Nixon, Drainage Commissioner

No. 12,028

Supreme Court of Indiana

April 23, 1885

From the Clinton Circuit Court.

J. N Sims, for appellants.

S. H Doyal and P. W. Gard, for appellee.

OPINION

Best C.

This action was brought by the appellee, under section 4, Acts of 1883, p. 178, to enforce a ditch assessment. A demurrer to the complaint was overruled, and a demurrer to the answer was sustained. The appellants declining to further plead, the damages were assessed at $ 310, after which a motion for a new trial, on the ground that the damages assessed were excessive, was overruled and judgment rendered accordingly. These rulings are assigned as error.

The section of the statute under which this suit was instituted provides that the commissioner of drainage "may, if he so determine, bring suit in the name of the State of Indiana, for his use, * * * to enforce a lien upon any tract or tracts of land for the amount so assessed by him," and it is insisted that as the complaint does not aver that the commissioner had determined to bring the suit, the complaint was insufficient. There is nothing in this objection. The statute simply provides the remedy and authorizes, but does not require, the commissioner to pursue it. No averment of his determination is required.

The cause was entitled, "The State of Indiana, ex rel. Francis M. Nixon, commissioner of drainage for Clinton county," and in the body of the complaint the commissioner also styled himself "relator," and for this reason it is insisted that the complaint was insufficient. We think otherwise. The complaint shows, beyond question, that the suit was in the name of the State, for the use of the commissioner of drainage, to enforce a ditch assessment, and the mere fact that the commissioner in portions of the complaint denominated himself "relator" in no manner changed the character of the action or impaired the force or legal effect of the material averments of the complaint.

The complaint does not aver that a copy of the petition and order of reference was delivered by the clerk to the commissioners of drainage, and for this reason it is insisted that the complaint was insufficient. This was unnecessary. This direction precedes the confirmation of the assessments and the establishment of the work, and by the 8th section of the act of April 8th, 1881, it is provided that "such judgment shall be conclusive that all prior proceedings were regular and according to law." This statute supplies the averment. The delivery of this copy is not jurisdictional, but is an act directed to be done after jurisdiction has been acquired, and, therefore, the statute conclusively presumes it to have been done. Scott v. Brackett, 89 Ind. 413.

Some other objections were made to the complaint upon the ground that certain formalities in the original ditch proceedings are not alleged to have been observed, but none of them are well taken for the reason last above given.

The answer merely alleged that the clerk did not deliver a copy of the petition and order of reference to the commissioner of drainage. This fact could not be controverted for the reasons already given, and the answer should have been stricken out on motion. The demurrer accomplished the same purpose, and was, therefore, properly sustained.

The only evidence offered in the assessment of damages was proof that the attorney's fees were worth $ 40. No evidence was offered as to the amount of the ditch assessments, and for the want of it the appellants insist that the damages assessed were excessive.

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