Quick v. Templin

• Decision Date: 23 June 1908
• Docket Number: 6,460
• Citation: 85 N.E. 121,42 Ind.App. 151
• Parties: QUICK ET AL. v. TEMPLIN, TREASURER, ET AL
• Court: Indiana Appellate Court

85 N.E. 121

42 Ind.App. 151

QUICK ET AL. v. TEMPLIN, TREASURER, ET AL

No. 6,460

Court of Appeals of Indiana

June 23, 1908

From Starke Circuit Court; John C. Nye, Judge.

Suit by Samuel M. Quick and another against Isaac Templin, as County Treasurer of Starke County, and others.From a decree for defendants, plaintiffs appeal.

Reversed.

George W. Beeman and William A. Foster, for appellants.

W. C Pentecost, for appellees.

MYERSJ. Roby, J., absent.

OPINION

MYERS J.

Alfred A. Savery, as county surveyor of Starke county, acting under the act of 1905(Acts 1905, p. 456, § 10,§ 5631 Burns 1905), repaired a certain public ditch theretofore established under the drainage law of this State, and on May 29, 1905, reported to the county auditor the repairs so made and the lands assessed to meet the costs of such repairs.Lee M. Ransbottom, as county auditor of said county, entered the assessments so made on the tax duplicate and placed the same in the hands of Isaac Templin, county treasurer, for collection, as provided in said section.The ditch so repaired was partly within and partly without the corporate limits of the town of Knox.The assessments so made were against land within said corporate limits, as well as upon land without said limits.The appellants, as owners of assessed lands within the town, brought this suit in their own behalf and on behalf of others named owning lands within said town likewise and similarly affected, including the town of Knox, to enjoin the county treasurer from collecting the assessments made against the several parcels of land within said corporate limits, and the assessment against the town as benefits to the highways therein, and to enjoin said county auditor from again placing said assessments upon the tax duplicates and the county surveyor from again making or certifying the same against their said lands, separately described in the complaint.Separate demurrers of appellees for want of facts were sustained and a decree entered in their favor.

The only errors assigned relate to the ruling of the court in sustaining the demurrers to the complaint.

Appellees first make the point that no question is presented for decision, for the reason that the exception to the ruling of the court on the separate demurrers of each of the appellees was joint and in gross, and the assignments of errors are by the appellants severally, and based on the ruling on each demurrer.It appears from the record that each of the appellees filed a separate demurrer to the complaint for want of facts.Each of these demurrers was sustained, the order-book entry being: "Come now the parties herein, and the demurrer filed by the defendants herein is sustained by the court, to which the plaintiffs except and refuse to plead further and abide their complaint."Technically speaking, there is some merit in appellees' contention, but the more recent decisions being less technical along these lines, indicate a purpose, and rightly so, to push aside technical rules and give to parties the benefit of a reasonable construction of the record, to the end that the merits of the controversy may be reviewed.The point suggested is not well taken.Whitesell v. Strickler(1907), 167 Ind. 602, 78 N.E. 845;Bessler v. Laughlin(1903), 168 Ind. 38, 79 N.E. 1033.

Appellees also contend that the complaint was insufficient, for the reason that appellants were not entitled to join in one suit, citing Jones v. Cardwell(1884), 98 Ind. 331.It will be seen from an examination of that case that the complaint was held bad (1) because it stated a cause of action in one only of the plaintiffs; (2) because it did not show a common interest alike affected, or that it was a proceeding to enforce a relief common to both plaintiffs.

In this case it is shown that "the question is one of a common or general interest of many persons,"the parties numerous and "impracticable to bring them all before the court."In such cases our code, which is a reenactment of the equity rule for the joinder of parties, authorizes one or more to sue or defend for the benefit of the whole.§ 270Burns 1908, § 269 R. S. 1881, 1 Thornton's Civil Code, § 29, note 15, § 37.The code further provides that "all persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs," etc. § 263Burns 1908, § 262 R. S. 1881.

In this case the complaint, in addition to other facts, alleges that the assessments against the lands of plaintiffs and the lands of all others for whom plaintiffs sue, lying, and being within the corporate limits of the town of Knox, and assessed to pay for said repairs, as well as the assessment against said town, were without authority of law, and that said treasurer, treating said assessments as valid, is threatening to and will unless enjoined levy upon, advertise and sell said lands; that said assessments are an apparent lien on said lands and a cloud upon the title thereto, and that unless said officers are enjoined great and irreparable injury to these plaintiffs and the others for whom they sue will result from their proposed unlawful and unwarranted acts; that the placing of said assessments on the tax duplicate against said lands and against said town of Knox was wrongful and unlawful and without warrant of any statute of the State of Indiana.

The case before us presents but one issue, the enforcement of a common interest, that of relief against an alleged illegal assessment, common to all, injuriously affecting all, and with common relief demanded for all.While the real estate assessed was held in separate rights, there was that community of interest shown between the plaintiffs as would authorize them to unite in one suit, upon the principle at least of thereby avoiding a multiplicity of suits.Heagy v. Black(1883), 90 Ind. 534, 540;Town of Sullivan v. Phillips(1887), 110 Ind. 320, 11 N.E. 300;Jones v. Rushville Nat Bank(1894), 138 Ind. 87,...