Reeves v. Grottendick
| Decision Date | 02 April 1892 |
| Docket Number | 15,167 |
| Citation | 30 N.E. 889,131 Ind. 107 |
| Parties | Reeves et al. v. Grottendick et al |
| Court | Indiana Supreme Court |
From the Randolph Circuit Court.
Judgment affirmed.
W. D Foulke, C. H. Burchenal and J. L. Rupe, for appellants.
C. C Binkley, E. L. Watson and J. E. Watson, for appellees.
Thirty precepts to enforce the collection of assessments levied for the cost of improving a street in the city of Richmond were issued against lots owned by the appellants. From these precepts separate appeals were prosecuted, but the trial court and the parties acted upon the theory that the appeals constituted a single case. The rule is that the appellate tribunal will act upon the theory voluntarily assumed in the trial court, and, under this rule, we shall regard the record as presenting a single case for our consideration.
Our statute provides that the transcript certified to the circuit court by the city clerk shall constitute the complaint of the contractor. This singular provision makes a pleading for a contractor who expends time, money and labor, in improving streets for the benefit of the municipality and private property-owners, and justice requires that it should not be construed with rigid strictness against him. As the officers of the law, and not the party, make the pleading it ought to stand, unless there is some defect in it which affects the substantial rights of the parties. It is by no means every departure from the statute that will warrant the courts in declaring that the contractor has no complaint. If therefore, we find no error or defect in the proceedings and transcript before us affecting the substantial rights of the appellants, we must uphold the complaint. It is to be borne in mind that the right to appeal from a precept is a statutory right, for there is no inherent right of appeal. Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 19 L.Ed. 264; State, ex rel., v. Slevin, 16 Mo.App. 541; Kundinger v. City of Saginaw, 59 Mich. 355, 26 N.W. 634; City of Minneapolis v. Wilkin, 30 Minn. 140, 14 N.W. 581; La Croix v. County Commissioners, etc., 50 Conn. 321. As the right to appeal is statutory, it is within the power of the Legislature to declare what questions shall be tried on appeal, and to preclude parties from litigating such as it may deem properly settled by the decision of the municipal officers. See authorities cited in Elliott Roads and Streets, p. 272.
The statute provides that "no question of fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the council," and it also provides that, "if the court and jury shall find upon trial, that the proceedings of the said officers, subsequent to said order directing the work to be done, are regular; that a contract has been made; that the work has been done, in whole or in part, according to the contract; and that the estimate has been properly made thereon,--then said court shall direct the said property to be sold." Section 3165, R. S. 1881. It is clear that these provisions forbid the property-owners from making any question that reaches back of the contract; and the absence from the transcript of facts or proceedings, affecting matters antecedent to the making of the contract, can not affect the substantial rights of the parties. It is equally clear that irregularities in proceedings prior to the making of the contract can not prejudice such rights. This has often been adjudged. In speaking of an attempt to present questions affecting proceedings anterior to the contract, it was said by Berkshire, J., in Boyd v. Murphy, 127 Ind. 174, 25 N.E. 702, that "The contention of the appellant is in the teeth of the statute." This expresses the result of the decisions upon the subject. Sims v. Hines, 121 Ind. 534, 23 N.E. 515; Jenkins v. Stetler, 118 Ind. 275, 20 N.E. 788; City of Elkhart v. Wickwire, 121 Ind. 331, 22 N.E. 342; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; Trustees, etc., v. Rausch, 122 Ind. 167, 23 N.E. 717; Johnson v. Allen, 62 Ind. 57; McGill v. Bruner, 65 Ind. 421; City of Fort Wayne v. Shoaff, 106 Ind. 66, 5 N.E. 403; Taber v. Grafmiller, 109 Ind. 206, 9 N.E. 721; City of Greenfield v. State, ex rel., 113 Ind. 597, 15 N.E. 241; Wiles v. Hoss, 114 Ind. 371, 16 N.E. 800; Clements v. Lee, 114 Ind. 397, 16 N.E. 799; Board, etc., v. Silvers, 22 Ind. 491; Palmer v. Stumph, 29 Ind. 329; Kalbrier v. Leonard, 34 Ind. 497; Gulick v. Connely, 42 Ind. 134; Martindale v. Palmer, 52 Ind. 411. The cases of Moberry v. City of Jeffersonville, 38 Ind. 198, McEwen v. Gilker, 38 Ind. 233, and Kretsch v. Helm, 45 Ind. 438, were in conflict with the much better considered earlier cases, as well as with later ones, and have been overruled. The object of the statute is evident and its effect just. It gives effect to a long existing principle of equity, for it precludes a property-owner, who permits a contractor to improve a street, from defeating a recovery for the work because of errors or irregularities which occurred prior to the time the contract was executed. The statute has much to commend it, nothing to condemn it.
The rule that a property-owner is estopped, by force of the statute, from assailing the proceedings antecedent to the making of the contract disposes of the argument of the appellants' counsel that the transcript is insufficient because of an alleged irregularity in advertising for proposals.
We can not hold that the appellees must lose their cause because the affidavits for the precepts were made by one, only, of the contractors. The affidavit of one person is as effective in such a case as this as that of two persons, and so it has been expressly decided. Jenkins v. Stetler, supra. The decision in Ray v. City of Jeffersonville, 90 Ind. 567, does not oppose the conclusion here declared, but, on the contrary, impliedly supports it.
The notice to the property-owners of the amount of the assessment and the affidavit for a precept are, as the record shows, combined. They constitute, in contemplation of law, one instrument. In the former the lot assessed is specifically described, so that there can be no mistake as to the lot against which it was asked that a precept should issue. We think it clear, therefore, that the affidavit does contain a description of the lot.
The contention of appellants' counsel that the affidavit is insufficient because it does not properly show an assessment presents a more difficult question than those we have considered and decided. The statute requires that the affidavit shall state that "the whole or some part of said assessment remains unpaid, showing the amount paid and the amount due; that the estimate thereof has been duly made and that the work estimated has been done according to contract." Section 3165, R. S. 1881. The affidavit before us shows the amount of the estimate, the number of lineal feet of frontage, the cost per lineal foot, and that "no dollars" has been paid, and it shows, also, that a specific sum which is definitely designated, remains unpaid. This, we think, is a sufficient statement of the amount due and unpaid. The affidavit does say in terms that the estimate has been duly made, and that the work has been done according to the contract, and this is a sufficient statement as to the estimate. The decision in Balfe v. Johnson, 40 Ind. 235, is not of controlling influence, because the lot against which the precept is issued in this case is specifically described. There is not here, as in that case, the inclusion of several separate lots in one affidavit, and a gross assessment against all. Here the affidavit states the specific assessment against each particular lot, and each affidavit designates the cost per lineal foot, so that there is no similarity between the two cases. The affidavits do refer to a contract, do designate South Fifteenth street as the street improved, and aver "that more than twenty days have elapsed since the date of the estimate; that the same was duly made and that the work estimated has been done according to contract between said Grottendick and Cronin and the city." There is, therefore, no such defect as that which existed in the affidavit in Clements v. Lee, 114 Ind. 397, 16 N.E. 799, where the court said: "There is no intelligent reference to any contract which the affiant had theretofore entered into with the common council of the city of Crawfordsville for the improvement of the street described in the ordinance directing the work, nor does the affidavit state the amount which had been paid, or that the work was done under a contract entered into with the city council, and that the work so done has been duly estimated." We have examined the record on file in Clements v. Lee, supra, and find the affidavits radically different from the affidavit contained in the record before us, so that the decision in that case is not influential here. We can not assent to the doctrine that an affidavit must recapitulate all the steps that have been taken, for the statute, as we have seen, declares what it shall contain, and it is sufficient if it substantially conforms to the statutory requirements. There would be little use in requiring a contractor to rehearse to the common council its own acts. It would serve no useful purpose to compel him to convey information already imparted to it by its own records, nor would the property-owner receive the slightest benefit from such a requirement. It would be ineffective and fruitless, and it is...
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