Powell v. City of Greensburg

• Decision Date: 29 March 1898
• Parties: POWELL et al. v. CITY OF GREENSBURG.
• Court: Indiana Supreme Court

150 Ind. 148

49 N.E. 955

POWELL et al.

v.CITY OF GREENSBURG.

Supreme Court of Indiana.

March 29, 1898.

Appeal from circuit court, Decatur county; John D. Miller, Judge.

David Powell and others appealed to the circuit court from proceedings of the council of the city of Greensburg to open and extend a street. From a judgment overruling a demurrer to the complaint filed in the circuit court, said Powell and others appeal. Affirmed.B. F. Bennett, Thos. Davidson, Cortez Ewing, and Dawson Wilson, for appellants. David A. Myers, for appellee.

JORDAN, J.

This was a proceeding by the common council of the city of Greensburg to open and extend Wilder street under the provisions of section 3631, Burns' Rev. St. 1894 (section 3168, Rev. St. 1881; section 3168, Horner's Rev. St. 1897). Appellants appealed to the circuit court under section 3643, Burns' Rev. St. 1894 (section 3180, Rev. St. 1881), in which court they demurred to the complaint on the ground that the court had not jurisdiction to try the cause. This demurrer was overruled, and this ruling is assigned as error.

By section 3643 (section 3180) supra, appellants in the lower court were required to specifically state in writing their objections, if any, to the proceedings of the common council and commissioners. It is therein provided that no other questions shall be tried or heard, except such as are with a certainty to a common intent presented by the appellant in his written statement. It was the purpose, no doubt, of appellants by this demurrer to question the jurisdiction of the common council and city commissioners in the proceedings to open the street in controversy; consequently, if the want of jurisdiction was apparent on the face of the transcript, they should, in their demurrer, have stated specifically wherein it existed; and, if such question depended upon facts not apparent upon the record of the proceedings filed in the lower court, such facts should have been specifically set up by way of answer. The demurrer did not sufficiently point out the grounds of objection within the requirements of the statute, and was, therefore, properly overruled. Hays v. City of Vincennes, 82 Ind. 178.

Appellants filed an answer, which apparently proceeds upon the theory that their lands, which the appellee sought by this proceeding to appropriate for a public street, were not within the city limits, and therefore not subject to the jurisdiction of appellee. The answer, after describing the real estate to be appropriated for the street in dispute, avers “that none of said real estate in this answer described was ever taken into the corporate limits of said city, for that on January 2, 1896, said city petitioned the board of commissioners of said county to annex certain lands contiguous to the corporate limits of the city, including the land herein described, setting forth in said petition that the territory sought to be annexed was that owned by one Tilford Dickerson.” The answer then alleges that the land was not owned by said Dickerson at the time of said annexation proceedings, but was owned by the appellant the Cleveland, Cincinnati. Chicago & St. Louis Railway Company and by Henry Doles, and that thereafter the part owned by Doles was by him conveyed to appellants Israel D. and Samantha Jewett. It is then further averred that on January 4, 1896, a notice of said petition to annex said territory was given by the common council of the city of Greensburg 30 days before the beginning of the March term, 1896, of the board of commissioners of the county, by publication in the Greensburg Review, a public newspaper of general circulation, published and printed in said county; that this was the only notice given, and that it contained a description of the lands sought to be annexed, “including the lands herein described”; that in this notice the land therein described was designated as being owned by one Tilford Dickerson; that at said March term of said commissioners' court such proceedings were had that the prayer of the petition was granted, and the lands were declared to be annexed to the city, and the limits thereof were ordered extended so as to include the lands described and set forth in the notice. It is further alleged in the answer that the map and plat of the territory to be annexed by said proceeding described the land as belonging to Tilford Dickerson, and that the names of the owners of the land described in the petition and notice were not set forth therein; and it is then averred as a conclusion that the appellants in fact never had any notice of the proceedings of said annexation. The answer also sets up that part of the real estate involved...