Moss v. State ex rel. Mann
| Decision Date | 20 March 1885 |
| Docket Number | 11,626 |
| Citation | 101 Ind. 321 |
| Parties | Moss v. The State, ex rel. Mann |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
J. W Kern, B. F. Harness, J. C. Blacklidge, W. E. Blacklidge and B. C. H. Moon, for appellant.
J. F Elliott and L. J. Kirkpatrick, for appellee.
Appellee commenced this suit against appellant to collect a ditch assessment. A demurrer was overruled to the complaint. The defendant refused to answer over, and judgment was rendered for the plaintiff.
The error assigned is the overruling of the demurrer to the complaint. The proceeding was commenced under the statute of 1881, and proceeded regularly under that statute to the filing of the report of the commissioners of drainage on January 12th, 1883.
In June, 1883, the court, in some respects, modified the report of benefits and damages, and approved and confirmed it as so modified, ordered the drain to be constructed, and appointed appellee, one of said commissioners, to superintend the work. He had the proper notice recorded, and made an assessment by instalments to pay for the construction of the drain. The objections to the complaint are:
First. That the act of 1881, under which the proceedings were commenced, was repealed by the act of 1883, which took effect March 8th, 1883.
Second. That a copy of the assessment is not made a part of the complaint, by exhibit or otherwise.
The amendment of 1883 contains no repealing clause of the statute of 1881, and can by implication only repeal such parts thereof as are in conflict with the amendment. The amendment is not an independent statute covering the whole subject of drainage, and intended to be a substitute for the act of 1881; but it is clearly intended to be an amendment to certain sections only, and as such the amended sections, as amended, became parts of the original act, and are to be enforced as such.
As an evidence of the fact that the Legislature did not intend that this amendatory statute should be an independent one, that it should be a substitute for the former, or that it should repeal by implication the former, the 8th section of the amendatory act provides that "this act as to the time in which a remonstrance may be filed, shall relate to all proceedings now pending, when a contract for the construction of the drain has not been made."
The proceedings in this case, up to the time the amendatory act of 1883 went into force, are to be controlled and governed by the act of 1881; after the amendment took effect they are governed by the same act as amended. We think the first objection to the complaint is not well founded.
The amendatory act has produced some confusion in the practice, as to what is the foundation of an action to collect assessments, and what should be made a part of the complaint, by exhibit or otherwise.
There are a number of cases in this court holding that a copy of the assessment should be made an exhibit to the complaint. The act of 1881, before amendment, and since amendment, requires two assessments to be made--the assessment of the benefits and damages by the drainage commissioners, and the assessment of instalments to be collected by the working commissioner--under which the question arises, Which one of these assessments is to be regarded as the foundation of the action? We answer, the one that creates the lien upon the land.
Under the act of 1881, as originally passed, the 4277th section, R. S. 1881, provides that the commissioner charged with the execution of the work shall assess from time to time upon the lands benefited, ratably upon the amount of benefits as adjudged by the court, such sums of money as may be necessary therefor, etc.
The 4278th section provides that "The amount of assessments so made by such commissioner shall be a lien upon the lands so assessed, from the date of recording notice of the establishing of the work by the court."
Under this statute, as it originally stood, this court has held that the assessment made by the commissioner who has charge of the work creates the lien, and must be made a part of the complaint. Crist v. State, ex rel., 97 Ind. 389; Roberts v. State, etc., 97 Ind. 399.
But the 5th section of the amendatory act of 1883, Acts 1883, p. 179 amends the above 6th section of the act of 1881, and which amended se...
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...decisions have uniformly held that the assessment must be made part of that pleading. State v. Myers, 100 Ind. 487, see page 488; Moss v. State, 101 Ind. 321. We can, therefore, regard only the averments in the body of the complaint, and the copy of the assessment, in determining the suffic......
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... ... It is settled law in ... this State, both by legislative action and by judicial ... determination, that, ... Mayne v. Board, ... etc. (1890), 123 Ind. 132, 24 N.E. 80; Moss v ... State, ex rel. (1885), 101 Ind. 321; ... Palmer v. City of ... ...
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