Pickering v. State

• Decision Date: 21 April 1886
• Citation: 106 Ind. 228,6 N.E. 611
• Parties: Pickering v. State, for Use of Dyar, Com'r, etc.
• Court: Indiana Supreme Court

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 protectthe 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 party to the proceedings in the circuit court. We think that the facts stated in the complaint are such as to require us to presume, in favor of the judgment of that court, that he was a party to the proceedings. To do otherwise would be to presume that the circuit court-a court of general jurisdiction-rendered a judgment declaring a lien upon the appellant's land without jurisdiction, and this would be to violate a well-settled principle of law. The general principle to which we refer was thus stated in Shumway v. Stillman, 4 Cow. 296: “Every presumption is in favor of the jurisdiction of the court; the record is prima facie evidence of it, and will be held conclusive until clearly and explicitlydisproved.” This rule is approved in many cases. There is, indeed, no substantial diversity of opinion. Mills v. Martin, 19 Johns. 33;Thomas v. Robinson, 3 Wend. 267;Peacock v. Bell, 1 Saund. 73; Granger v. Clark, 9 Shep. 128;Vandyke v. Bastedo, 15 N. J. Law, 224; Morrow v. Weed, 4 Iowa, 77; 1 Smith, Lead. Cas. (8th Ed.) 1105; Horner v. Doe, 1 Ind. 130;Waltz v. Borroway, 25 Ind. 380;Dwiggins v. Cook, 71 Ind. 579;Davidson v. Koehler, 76 Ind. 398, see page 421; Baltimore, etc., Co. v. North, 103 Ind. 486; S. C. 3 N. E. Rep. 144; Jackson v. Dyer, supra, and cases cited; McMullen v. State, supra.

In the case of Baltimore, etc., Co. v. North, supra, it was held that an averment that the property owner never had any notice of the proceedings to establish a ditch was not sufficient, the court saying of that averment that “it was not sufficient to overcome the presumption that the statutory notice had been properly given.” This ruling is in harmony with our decisions. Exchange Bank v. Ault, 102 Ind. 322; S. C. 1 N. E. Rep. 562; Reid v. Mitchell, 93 Ind. 469;Rogers v. Beauchamp, 102 Ind. 33; S. C. 1 N. E. Rep. 185; Reed v. Whitton, 78 Ind. 579;Young v. Wells, 97 Ind. 410;Earle v. Earle, 91 Ind. 27.

In the case of Exchange Bank v. Ault it was said of questions such as that here presented:

“In considering such questions, every presumption is indulged in favor of the validity of the judgment or decree sought to be impeached; and where its validity is called in question in or by any pleading, the facts stated therein must be such as will overcome or exclude all reasonable presumptions in its favor.”

This doctrine is in strict harmony with that declared in many cases closely analagous to this,-the levy of tax assessments to aid in the construction of railroads or gravel roads, the opening of highways, and like cases; for it has been uniformly held in such cases that where the court has assumed jurisdiction, and thus decided jurisdictional questions, its judgment cannot be collaterally impeached. Jackson v. Dyer, supra, and cases cited; Washington Ice Co. v. Lay, 103 Ind. 48; S. C. 2 N. E. Rep. 222; Lantz v. Maffett, 102 Ind. 23;Quarl v. Abbett, Id. 233; S. C. 1 N. E. Rep. 476; Brown v. Brown, 101 Ind. 340;Forsythe v. Kreuter, 100 Ind. 27;Anderson v. Wilson, Id. 402; McIntyre v. Marine, 93 Ind. 193;Hilton v. Mason, 92 Ind. 157;Town of Cicero v. Williamson, 91 Ind. 541, and cases cited; Evansville, etc., Co. v. Evansville, 15 Ind. 397. The rule declared in the cases cited has often been applied to cases arising under the drainage laws. Corey v. Swagger, 74 Ind. 211;Marshall v. Gill, 77 Ind. 404;Argo v. Barthand, 80 Ind. 63;Cauldwell v. Curry, 93 Ind. 363;Smith v. Clifford, 99 Ind. 114, and cases cited; Jackson v. Dyer, supra. The principle established by these cases, to which many more might be added, carries us to the conclusion that where the complaint to collect a ditch assessment shows a...