Sloan v. Faurot
| Decision Date | 31 January 1895 |
| Docket Number | 1,432 |
| Citation | 39 N.E. 539,11 Ind.App. 689 |
| Parties | SLOAN v. FAUROT |
| Court | Indiana Appellate Court |
From the Marion Superior Court.
Judgment reversed.
W. W Herod and W. P. Herod, for appellant.
C. L Holstein and C. E. Barrett, for appellee.
The appellant is the owner of a lot in the city of Indianapolis. The appellee was the contractor for certain street improvements on account of which an assessment was placed against the appellant's property. The appellee brought an action to foreclose the lien asserted by him as such contractor, by reason of the said improvement and assessment. There was no appearance to the action by the appellant, and judgment was rendered against her by default. Subsequently the appellant sought to have the default and judgment set aside, but the court overruled her application. He appealed to the general term of the superior court, where the judgment of the special term was affirmed.
The assignment of errors, both in this court and in the superior court call in question:
1. The sufficiency of the complaint.
2. The correctness of the court's ruling in denying the motion to set aside the default.
The appellee's learned counsel insist that no question is raised as to the sufficiency of the complaint, because the appeal is not from the decree rendered on default of the appellant, but from the ruling of the court in refusing to set aside the judgment by default. We do not regard this position as tenable.
We think it is now settled that an appeal lies from a judgment by default. Baldwin v. Humphrey, 75 Ind 153; Old v. Mohler, 122 Ind. 594, 23 N.E. 967.
It is, of course, not disputed that an appeal may be taken from the judgment of the court refusing to set aside the default.
It may be possible that separate appeals are necessary in such a case, but as to that we do not decide anything. But if that be the true practice, some objection must be taken, it seems to us, to the assignment of errors, as for a misjoinder. No such objection has been interposed, and both assignments stand. The appeal is, therefore, as much from the judgment by default, as it is from the ruling upon the motion to set aside the judgment by default. We have no more right to disregard it in the one case than in the other.
The confusion arising, in such cases is, doubtless, attributable to the questionable practice of allowing an appeal at all from a judgment by default, where no effort has been made in the lower court to set the same aside. Elliott's App. Proced., section 334.
But this we have no power to remedy.
We, therefore, regard the question of the sufficiency of the complaint as properly before us. When the appeal is from a judgment taken by default, the rule that the complaint will be held sufficient unless there is an entire failure to state a cause of action does not apply. The rule appears to be, in such cases, that if the complaint is not such as would withstand a demurrer it may be first assailed by an assignment of errors in this court. Elliott App. Proced., section 475, and cases cited; Cleveland, etc., R. W. Co. v. Tyler, 9 Ind.App. 689, 35 N.E. 523.
In such a case the defects in the complaint can not be said to be cured by the verdict or finding, for the ample reason that no trial has been had.
The first objection urged to the complaint is that neither the assessment roll nor a copy thereof is made a part of or filed as an exhibit with the complaint. It is claimed on behalf of appellant that the assessment is the foundation of the cause of action, and therefore an imperative requirement of the statute is that it, or a copy of it, be made a part of the complaint.
The law under which the alleged assessment was made is what is usually known as the city charter of Indianapolis. Acts 1891, p. 180, section 82.
Section 77 of said act provides for the making out of an assessment roll with the names of the property-holders and description of the property adjoining the place of the proposed improvement, which roll shall also have set opposite each name and description the total pro rata assessment against each piece of property. When completed the assessment roll shall be delivered to the head of the department of finance. Acts 1891, p. 177.
By section 78 it is made the duty of the department of finance, whenever the Board of Public Works shall approve and accept the entire work under any contract, and allow a final estimate therefor, to forthwith deliver to the treasurer a certified copy of the assessment roll, which shall be known as the local assessment duplicate, upon which assessments shall be extended, much as taxes are extended upon the tax duplicate. Acts 1891, p. 177, supra.
It is apparent from these provisions that the appellee's lien,...
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