Smith v. State ex rel. Ingerman
| Citation | 19 N.E. 744,117 Ind. 167 |
| Decision Date | 29 January 1889 |
| Docket Number | 13,288 |
| Parties | Smith et al. v. The State, ex rel. Ingerman |
| Court | Supreme Court of Indiana |
From the Hamilton Circuit Court.
Judgment affirmed.
T. J Kane and T. P. Davis, for appellants.
R. R Stephenson and W. R. Fertig, for appellee.
This was a suit in the Hamilton Circuit Court by the appellee against the appellants upon the following bond:
It appears by the record in this cause that certain of the citizens of Hamilton county petitioned for the construction of a drain, and that such proceedings were had thereon as resulted in an order by the circuit court of that county directing that said drain be constructed according to the survey, plans and specifications set forth in the report of the commissioners of drainage then on file in said court.
The defendant Wells, who was one of said commissioners, was appointed by the court to collect the assessments necessary to defray the expenses and to superintend the work. He entered upon the discharge of his duty, collected the assessments, amounting to $ 1,500, and continued in office until -----, 1886, when he resigned, and the relator herein, who was the other drainage commissioner of the county, was appointed by the court as his successor in said work, and was ordered to proceed with the same to completion, and was also authorized by the court to bring this action.
It is alleged in the complaint, as breaches of the bond above set forth, that the defendant Wells wholly failed to have said drain constructed according to the survey and orders of the court, but caused and suffered said work to be done carelessly, unskilfully and imperfectly; that the same is wholly useless--that is to say, he let the contract for cutting said drain, laying the tile and filling the ditch to incompetent, unskilful and irresponsible persons, then and still wholly insolvent, knowing them to be such, and that he wholly failed to take any security or bond whatever for the faithful performance of said work, and carelessly suffered said contractors to cut said drain and lay said tiling, and cover the same deeply with earth, without first having the said drain cut according to said survey, and without giving the ditch a uniform fall, so as to allow the water to flow freely through said tiling; that the same was cut out to irregular depths, varying from the proper level in different places along the route of said drain, where the greatest depth was required, more than one foot, and lacking one foot of the depth of six feet at the head of said ditch as required by said survey and order; that the water does not flow freely through said tiling, and will not flow at all only as it is forced through by head-water; that said drain does not carry off the water to a sufficient depth below the surface of the ground in the swamp it was intended to drain to fit the same for cultivation, or to furnish an outlet for side drains; that said ditch is wholly useless for the purposes for which it was intended, but had it been constructed according to said survey it would have furnished sufficient outlet for the drainage of said swamp, reclaimed the same and rendered the soil thereof productive and of great value; that said Wells wrongfully and negligently paid over to said contractors large sums of money, to wit, one thousand dollars and the entire price for the work done by them, negligently having failed to exercise any supervision over the same, or to make any inspection thereof; and negligently failed to remedy said defects, or to require said contractors so to do, when by the exercise of reasonable care, and by proper inspection as the work progressed, and at the time said contractors professed to have completed the same, he might have discovered and remedied said defects; that had he exercised proper care, and made said inspection before said drain was filled with earth, the said defects could have been discovered, and, at a nominal cost, remedied, but that in its present condition said drain will have to be re-opened, the tiling removed and the bottom of said channel cut to its proper level, according to said survey and order, to make the same effective to drain said land, which will cost one thousand dollars; that said Wells paid out all the remainder of said assessments, except the sum of $ 100, which he converted to his own use, and then absconded, leaving no funds to complete said work.
The defendant Wells made default in the court below, and the other defendants appeared and filed a demurrer to the complaint, alleging as cause:
1st. That the complaint did not state facts sufficient to constitute a cause of action against them.
2d. That said plaintiff had no legal capacity to sue.
3d. That there was a defect of parties plaintiffs, in this, that the parties affected by the alleged failure of duty on the part of the drainage commissioner should have been joined as plaintiffs.
4th. That the court had no jurisdiction of the subject-matter of this action.
The court overruled the demurrer, and the defendants excepted.
The defendants then answered the complaint by a general denial. The cause was submitted to a jury for trial, who returned a verdict for the plaintiff, assessing the damages at six hundred and ninety-four dollars.
The defendants filed a motion for a new trial, which was overruled by the court, to which they excepted, and the plaintiff had judgment on the verdict.
The appellants assign as error in this court:
1st. That the complaint does not state facts sufficient to constitute a cause of action.
2d. That the court erred in overruling the demurrer of the appellants Smith, Benson and Brown to the complaint.
3d. That the court erred in overruling the motion of the appellants for a new trial.
Under the first cause of demurrer only one objection is urged to the complaint as a cause of action, and that is, that no copy of the bond in suit is filed with or made part of the complaint. Since the filing of the brief of appellants urging this objection, a copy of the bond has been inserted in the record at the proper place, by agreement of counsel, it having been inadvertently omitted by the clerk in making the transcript. This obviates the objection urged in the brief of appellants on account of this defect.
It is contended by counsel that inasmuch as the act of 1881, under which the drain in controversy was ordered, was repealed by the act of 1885, this plaintiff has no right of action.
Section 13 of the act approved ...
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