New Albany Gaslight & Coke Co. v. Crumbo

Decision Date22 June 1894
Citation37 N.E. 1062,10 Ind.App. 360
CourtIndiana Appellate Court


Appeal from circuit court, Floyd county; G. B. Cardwell, Judge.

Action by Edward Crumbo against the New Albany Gaslight & Coke Company to enforce a sewer assessment. Judgment for plaintiff. Defendant appeals. Affirmed.A. Darling, for appellant. Kelso & Kelso, for appellee.


This was a suit by appellee, a contractor, to collect an assessment for a sewer constructed under the Barrett law of 1889. Elliott's Supp. §§ 812, 821 (Rev. St. 1894, §§ 4288, 4298). The case was tried on the complaint and general denial. The insufficiency of the evidence to sustain the finding of the court is presented as cause for reversal. Counsel insist that the proceedings are absolutely void, because none of the resolutions upon which they are based were properly passed in accordance with our statute, which requires that, “on the passage of any by-law, ordinance or resolution, the yeas and nays shall be taken and entered on the record.” Rev. St. 1881, § 3099 (Rev. St. 1894, § 3534). It has been adjudged that this and similar statutes are mandatory, and not directory. City of Logansport v. Crockett, 64 Ind. 319;Coffin v. City of Portland, 43 Fed. 411;Steckert v. City of East Saginaw, 22 Mich. 104;O'Neil v. Tyler (N. D.) 53 N. W. 434. As to the resolution directing the construction of the work, we are of opinion that a substantial compliance is shown. This resolution and the order for advertisement for bids, “the yeas and nays being taken under the regular rule, were unanimously adopted by a full vote of the council.” This can only mean that, upon a regular call, every member of the council was present and voted for the resolutions. There is no room left for doubt as to who voted for it. Every purpose, therefore, that could be intended by this statute is here accomplished. In the present case, it is undisputed that the council had general jurisdiction over the subject-matter, and notice was given as required by the statute. In Ross v. Stackhouse, 114 Ind. 200, 16 N. E. 501, Mitchell, C. J., says: Regardless of the statute, however, it must be considered as settled by the decisions, and upon established principles, that where it appears, in a proceeding of this character, that an attempt was made to give notice, and that some notice was given, which the body charged with the duty of acting adjudged to be sufficient, a party whose property is to be benefited by the improvement cannot quietly stand by and receive the benefit, and then question the regularity of the proceedings, * * * unless the proceedings are so radically defective as to be totally void. A contractor who has executed the work may invoke the doctrine of estoppel for his protection. Where the record of the proceedings shows color of jurisdiction, the property owner, until the contrary appears, will be presumed to have notice of the progress of an improvement from which his property was being benefited. Taber v. Ferguson (Ind. Sup.) 9 N. E. 723. And having notice, and failing to object and arrest the improvement until the benefit has accrued, he will be deemed to have ratified the proceedings as fully as does one who receives the proceeds of a judgment or sale with knowledge of inherent infirmities which render it voidable, or even void. Fletcher v. McGill, 110 Ind. 395-404, 10 N. E. 651, and 11 N. E. 779. With the law as thus laid down, the objections made by reason of the irregularity in entering the vote on some of the resolutions cannot avail. The supreme court in Balfe v. Lammers, 109 Ind. 347, 10 N. E. 92, indicate, although they do not expressly decide, that they did not regard the failure of the record to disclose an aye and no vote as making the ordinance absolutely void. The counsel having upon the trial expressly waived all question as to the advertisement for bids for the work, such question cannot be now...

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6 cases
  • Lewis v. Albertson
    • United States
    • Indiana Appellate Court
    • May 24, 1899
    ... ... [53 N.E. 1073] ... became an assessment. New Albany Gas, etc., Co. v ... Crumbo, 10 Ind.App. 360, 37 N.E. 1062 ... ...
  • Becker v. Baltimore & O.S.W. Ry. Co.
    • United States
    • Indiana Appellate Court
    • April 1, 1897
    ...the council or board of trustees approve it and direct its payment, and this final estimate is called an assessment. Coke Co. v. Crumbo, 10 Ind. App. 360, 37 N. E. 1062. Watson, Statutory Liens, § 1224, says: “It may often happen that the final estimate or assessment is invalid or incorrect......
  • Becker v. The Baltimore and Ohio Southwestern Railway Company
    • United States
    • Indiana Appellate Court
    • April 1, 1897
    ... ... Watson's Statutory Liens, section 1204; City of New ... Albany v. Cook, 29 Ind. 220; Ross v ... Stackhouse, 114 Ind. 200, 16 N.E. 501; ... called an assessment. New Albany, etc., Coke Co. v ... Crumbo, 10 Ind.App. 360, 37 N.E. 1062 ... ...
  • Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Hays
    • United States
    • Indiana Appellate Court
    • December 30, 1896
    ... ... 526, 31 N.E. 817; Dugger v ... Hicks, 11 Ind.App. 374; New Albany, etc., Coke ... Co. v. Crumbo, 10 Ind.App. 360, 37 N.E. 1062 ... ...
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