Pickering v. State

Citation106 Ind. 228, 6 N.E. 611
Case DateApril 21, 1886
CourtSupreme Court of Indiana

106 Ind. 228
6 N.E. 611

Pickering
v.
State, for Use of Dyar, Com'r, etc.

Supreme Court of Indiana.

April 21, 1886.


Appeal from Howard circuit court.


Blacklidge & Blacklidge, B. C. H. Moon, John W. Kern, and Cooper & Haines, for appellant.

M. Garrigus, for appellee.


Elliott, J.

The commissioner of drainage, appointed by the Howard circuit court, brought this action to enforce an assessment for a drain levied by the judgment of that court.

It is contended by appellant's counsel that the complaint is bad because it shows that only 19 days' notice of the filing of the petition was given instead of 20, as the statute provides. We have in our own Reports very many cases deciding this point against the appellant. These cases decide that if there is some notice, although defective, it will protect

[6 N.E. 612]

the judgment as against a collateral attack. As shown in Jackson v. Dyer, 3 N. E. Rep. 863, this doctrine is well supported by authorities outside of our state; and our own cases, from that of Helphenstine v. Vincennes Nat. Bank, 65 Ind. 582, to that of McMullen v. State, 4 N. E. Rep. 903, affirm, without contrariety of opinion, the doctrine stated by us. It must therefore be deemed the settled law of this state.

We agree with appellant's counsel that instruments annexed to the complaint which are not copies of those constituting the foundation of the pleading cannot be considered in determining the sufficiency of the complaint. Jackson v. State, 103 Ind. 250; S. C. 2 N. E. Rep. 742. We have again and again censured this practice, and we repeat that it is one which no good pleader will adopt. In the case in hand there is but one of the exhibits that properly forms part of the complaint, and that is the copy of the assessment. Our 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 sufficiency of the complaint. Confining our minds to these things, we find that the complaint, unlike that in Jackson v. State, does affirmatively show that there was some notice, although defective; so that this case is easily discriminated from that, and is readily placed within the principle declared in Jackson v. Dyer, supra, and McMullen v. State, supra. We think our cases establish the rule that it must appear, either in the body of the complaint or in the exhibit properly part of that pleading, that there was some notice, and this is the general current of authority. It is, however, not necessary that it should be averred in direct terms that notice was given, but it is sufficient if this is necessarily involved in the averments made, or in the order of the court embodied, in the assessment. This question was fully examined in Jackson v. Dyer, supra, where a great number of our own and other cases are collected. Some of the statements upon this general subject found in Albertson v. State, 95 Ind. 370, are too broad, and must be limited. McMullen v. State, supra; Shaw v. State, 97 Ind. 23;Wishmier v. State, Id. 160; Vizzard v. Taylor, Id. 90; Young v. Wells, Id. 410. In this instance the averments in the body of the complaint, and in the exhibit properly forming part of the pleading, show, as we have said, that there was some notice.

It is further contended by the appellant that the complaint does not aver that he was a...

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38 practice notes
  • North Laramie Land Co. v. Hoffman, 967
    • United States
    • United States State Supreme Court of Wyoming
    • October 18, 1923
    ...See also Brown, Jur., Sec. 22, page 120; State v. Kusel, (Wyo.) 213 P. 367; Stoddard v. Johnson, 75 Ind. 20, 29; Pickering v. State, 106 Ind. 228, 232; 6 N.E. 611; Robinson v. Rippey, 111 Ind. 112, 119; 12 N.E. 141; Ely v. Board, 112 Ind. 361; 14 N.E. 236; Jackson v. State, 104 Ind. 516; 3 ......
  • Barber Asphalt Paving Co. v. Edgerton
    • United States
    • Indiana Supreme Court of Indiana
    • October 14, 1890
    ...N. E. Rep. 495; Robinson v. Rippey, 111 Ind. 112, 12 N. E. Rep. 141; Strieb v. Cox, 111 Ind. 299, 12 N. E. Rep. 481; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Argo v. Barthand, 80 Ind. 63;Ricketts v. Spraker, 77 Ind. 371;Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501; City of......
  • Jackson v. Smith
    • United States
    • Indiana Supreme Court of Indiana
    • October 31, 1889
    ...N. E. Rep. 495; Robinson v. Rippey, 111 Ind. 112, 12 N. E. Rep. 141; Strieb v. Cox, 111 Ind. 299, 12 N. E. Rep. 481; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Argo v. Barthand, 80 Ind. 63;Ricketts v. Spraker, 77 Ind. 371. In Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501, eff......
  • Lugger v. Hicks
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1894
    ...352, 28 N. E. 538. See, also, Jackson v. State, 116 Ind. 464, 19 N. E. 330;Otis v. De Boer, 116 Ind. 531, 19 N. E. 317;Pickering v. State, 106 Ind. 228, 6 N. E. 611. It will suffice to say, without analyzing these authorities, or further discussing the question, that the reasoning of Judge ......
  • Request a trial to view additional results
38 cases
  • North Laramie Land Co. v. Hoffman, 967
    • United States
    • United States State Supreme Court of Wyoming
    • October 18, 1923
    ...See also Brown, Jur., Sec. 22, page 120; State v. Kusel, (Wyo.) 213 P. 367; Stoddard v. Johnson, 75 Ind. 20, 29; Pickering v. State, 106 Ind. 228, 232; 6 N.E. 611; Robinson v. Rippey, 111 Ind. 112, 119; 12 N.E. 141; Ely v. Board, 112 Ind. 361; 14 N.E. 236; Jackson v. State, 104 Ind. 516; 3 ......
  • Barber Asphalt Paving Co. v. Edgerton
    • United States
    • Indiana Supreme Court of Indiana
    • October 14, 1890
    ...N. E. Rep. 495; Robinson v. Rippey, 111 Ind. 112, 12 N. E. Rep. 141; Strieb v. Cox, 111 Ind. 299, 12 N. E. Rep. 481; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Argo v. Barthand, 80 Ind. 63;Ricketts v. Spraker, 77 Ind. 371;Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501; City of......
  • Jackson v. Smith
    • United States
    • Indiana Supreme Court of Indiana
    • October 31, 1889
    ...N. E. Rep. 495; Robinson v. Rippey, 111 Ind. 112, 12 N. E. Rep. 141; Strieb v. Cox, 111 Ind. 299, 12 N. E. Rep. 481; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Argo v. Barthand, 80 Ind. 63;Ricketts v. Spraker, 77 Ind. 371. In Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501, eff......
  • Lugger v. Hicks
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1894
    ...352, 28 N. E. 538. See, also, Jackson v. State, 116 Ind. 464, 19 N. E. 330;Otis v. De Boer, 116 Ind. 531, 19 N. E. 317;Pickering v. State, 106 Ind. 228, 6 N. E. 611. It will suffice to say, without analyzing these authorities, or further discussing the question, that the reasoning of Judge ......
  • Request a trial to view additional results

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