People's Trust & Sav. Bank v. Hennessey

• Decision Date: 06 November 1925
• Docket Number: No. 12254.,12254.
• Citation: 106 Ind.App. 257,149 N.E. 365
• Court: Indiana Appellate Court
• Parties: PEOPLE'S TRUST & SAVINGS BANK et al. v. HENNESSEY et al.

106 Ind.App. 257

149 N.E. 365

PEOPLE'S TRUST & SAVINGS BANK et al.

v.HENNESSEY et al.

No. 12254.^*

Appellate Court of Indiana, Division No. 1.

Nov. 6, 1925.

Appeal from Circuit Court, Porter County; H. H. Loring, Judge.

Action by the People's Trust & Savings Bank and others against John C. Hennessey and others. From an adverse judgment, plaintiffs appeal. Reversed, with directions.

*365Sallwasser & Sallwasser, of La Porte, for appellants.

Osborn, Osborn & Link, of La Porte, for appellees.

THOMPSON, J.

This is an appeal from an action to foreclose certain municipal assessment liens on property owned by appellees and for a personal judgment against John C. Hennessey, one of the appellees.

On May 8, 1911, the board of public works of the city of La Porte, Ind., adopted a declaratory resolution providing for the construction of Pine Lake avenue in said city. After the contract had been let, the improvement completed, the said board of public works, on October 11, 1912, made and adopted a final estimate of the total costs of the improvement, and made a complete assessment roll for the cost of same, assessing each lot according to its benefits. On October 28, 1912, said assessment roll was approved by said board of public works and delivered to the department of finance of said city, and a duplicate thereof was recorded in the treasurer's office.

At the time above mentioned appellee John C. Hennessey was the owner of lots 7, 11, 12, 16, 17, and 18 in Hennessey's resubdivision to the city of La Porte, and said lots were assessed in the amounts of $116.80, $116.80, $116.80, $125.56, $125.56, and $124.39 respectively. On November 18, 1912, John C. Hennessey signed a waiver, thereby signifying his intention to pay said assessments in 10 annual installments, the first installment and all accrued interest to become due and payable on the first Monday in May, 1913. Nothing has been paid on these assessments by John C. Hennessey or any one else.

Since the signing of said waiver, John C. Hennessey has conveyed lot No. 18 to William Hawley Hennessey, one of the appellees herein, and has conveyed all the remaining lots to a trustee, who in turn reconveyed them to John C. Hennessey and his wife, the other appellee herein. The department of finance then issued bonds to the contractor, covering the amount of the appellee's assessment, *366which bonds were transferred by said contractor to the appellant; said bonds maturing on June 1, 1922. Upon presentation of said bonds to the treasurer of the city of La Porte the payment thereof was refused. Appellant, on March 14, 1923, filed its complaint for foreclosure of said municipal lien and for personal judgment against John C. Hennessey.

To this complaint the appellees William Hawley Hennessey and Kate Hawley Hennessey filed an answer of general denial, and a second paragraph of answer alleging that said cause of action did not accrue within five years from the time of the commencement of said action. And the appellee John C. Hennessey filed an answer of general denial and five additional paragraphs setting up the 5 and 10 year statutes of limitations. To this answer appellant filed a reply of general denial to all paragraphs of answer of said defendants, except the first paragraph of the answer of each of said appellees.

On the issues thus formed the court found for appellant against the appellee John C. Hennessey personally, and that the allegations of appellant's complaint, in so far as it related to the personal liability of said appellee John C. Hennessey, were true, and found further for the appellees Kate Hawley Hennessey and William Hawley Hennessey, and denied the plaintiff the right of foreclosure on the real estate described in appellant's complaint; that there is due the appellant from the appellee John C. Hennessey, on the cause of action sued upon, the sum of $955.40 and costs.

Appellant filed a motion for a new trial, which was overruled, and exception reserved by appellant.

The error relied upon for the reversal of this case is, that the court erred in overruling appellant's motion for a new trial, the reasons for which motion properly presented are that the decision of the court is not sustained by sufficient evidence and that it is contrary to law.

It appears from the agreed statement of evidence that the first installment of principal and interest on said assessments became due and payable on the first Monday in May, 1913, and that neither said first installment nor any other amount has ever been paid on said assessments by the appellees or either of them, or by any one for or on their behalf; that the original complaint in this action was filed March 12, 1923, which complaint was in one paragraph, and that neither the written waiver signed by John C. Hennessey November 18, 1912, nor any copy thereof, was set out in or filed with said original complaint, but a copy thereof was filed with the amended complaint, which amended complaint was filed on March 5, 1924.

Under the pleadings filed, the principal question to be determined is whether the statute of limitations, pertaining to municipal assessment liens, had sufficiently run to bar appellant's right of foreclosure. The statutes applicable to this question...