Phillips v. Lewis
| Decision Date | 10 December 1886 |
| Docket Number | 12,696 |
| Citation | 9 N.E. 395,109 Ind. 62 |
| Parties | Phillips v. Lewis et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Jan. 7, 1887.
From the Grant Circuit Court.
The judgment is affirmed, with costs.
J Brownlee, for appellant.
A Steele and R. T. St. John, for appellees.
This was a suit by appellant, and one James Hoggart, against the appellees, to recover the amount claimed to be due upon a certain ditch assessment, alleged to have been made on the 5th day of October, 1868, against certain real estate, in Grant county, then owned by one William L. Noble. Before any steps were taken in the case, the record shows that on motion of plaintiff, James Hoggart, the cause as to him was dismissed. Appellees jointly answered, in four paragraphs, and also filed their cross complaint herein. Appellant's demurrer was overruled as to the first and third paragraphs, and sustained as to the second and fourth paragraphs, of appellees' answer to the complaint. Appellant answered appellees' cross complaint, in three paragraphs, and also filed replies to the first and third paragraphs of appellees' answer to his complaint. Appellees' demurrer was sustained to the first and third paragraphs of appellant's answer to their cross complaint; and their demurrer was also sustained to the first and third paragraphs of appellant's reply to the first and third paragraphs of their answer to appellant's complaint. It is then shown by the record, that appellant withdrew the second and fourth paragraphs of his answer to the cross complaint, and also the second and fourth paragraphs of his reply to appellees' answer, "electing to stand by his pleadings notwithstanding the demurrers." The court then adjudged that appellant take nothing by his suit herein, and that appellees recover of him their costs; and from this judgment this appeal is now here prosecuted.
In this court, appellant has assigned a number of errors. But it is manifest, from the foregoing abstract of the record, that the only decisions of the court below, which were adverse to him, were the sustaining of appellees' demurrer to the first and third paragraphs of his reply to appellees' answer to his complaint, and the sustaining of appellees' demurrer to the first and third paragraphs of his answer to their cross complaint. The last of these rulings, even if erroneous, was harmless to the appellant, because, as shown by the record, the appellees failed to recover upon their cross complaint herein. So that the only error assigned by appellant upon the record of this cause, which we are required to consider and decide, is the error of the court in sustaining appellees' demurrer to the first and third paragraphs of his reply to the first and third paragraphs of their answer to his complaint herein. The first paragraph of reply is addressed to the first paragraph of answer, and the third paragraph of reply is addressed to third paragraph of answer.
In the first paragraph of their answer, appellees admitted that, in 1868, appellant and James Hoggart petitioned the board of commissioners of Grant county for the drainage of certain lands, named in such petition; that an order was made by such county board granting the prayer of such petition; that such board then pretended to appoint Henry Stugart, Benjamin Glessner and Eli T. Hunt, appraisers to assess the benefits and damages, likely to result to the lands described; that said appraisers pretended to make and return an assessment of such benefits and damages, which assessment was filed with the complaint herein, and that the land in the complaint named was owned by William L. Noble, who was a non-resident of Grant county; and appellees averred that they were the owners of such land and derived their title thereto by and through said William L. Noble, who was their remote grantor; that the aforesaid petition and order of the county board, and all the proceedings thereunder, were and continued to be wholly void, because said petition failed to locate or indicate the course and terminus of the ditch or drain so petitioned for; that the order of the county board to the aforesaid appraisers did not locate or indicate any course or terminus of such ditch or drain. Wherefore appellees said that such proceedings were void, and they denied each and every allegation in the complaint, not admitted in this paragraph of answer, and demanded judgment for costs, etc.
In his reply to the foregoing paragraph of answer, appellant alleged that the ditch, named in his complaint and proceedings, was ordered, allowed and established by the board of commissioners of Grant county, at its September term, 1868, which was so done and ordered according to the provisions of the law, approved March 7th, 1863; and after setting out a description of the beginning, courses, distances and terminus of the ditch or drain, appellant again alleged that the ditch or drain was, in all things, done, allowed, located, constructed and the assessments made, in accordance with the provisions of such law of March 7th, 1863; that each and all of the assessments for the construction of such ditch, referred to in his complaint, had been fully paid and satisfied, except the assessment on the land of William L. Noble, which was then the land of appellees who purchased the same, knowing that said assessment had been made and recorded, as stated in the complaint herein; that such ditch benefited their land much more than the amount of such assessment, and that such assessment was unpaid and a valid lien on their land; that William L. Noble knew that the ditch was so located, and that appellant was constructing the same, and made no objection thereto and agreed to pay his assessment therefor, all of which was due appellant, and James Hoggart had no interest therein. Wherefore, etc.
We are of opinion that the court did not err...
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