Smyth v. State ex rel. Braun

• Decision Date: 10 January 1902
• Citation: 62 N.E. 449,158 Ind. 332
• Parties: SMYTH et al. v. STATE ex rel. BRAUN.
• Court: Indiana Supreme Court

158 Ind. 332

62 N.E. 449

SMYTH et al.

v.STATE ex rel. BRAUN.¹

Supreme Court of Indiana.

Jan. 10, 1902.

Appeal from circuit court, Benton county; Joseph M. Rabb, Judge.

Mandamus by the state, on the relation of George S. Braun, against James D. Smyth, auditor, and others, to compel defendants to place on the tax duplicate certain assessments made by commissioners. From a judgment granting the writ, defendants appeal. Affirmed.Fraser & Isham, for appellants. S. P. Baird and C. M. Bright, for appellee.

HADLEY, J.

Such proceedings were had before the board of commissioners of Benton county for the establishment of a free gravel road under the act of March 3, 1877 (section 6855 et seq., Burns' Rev. St. 1901), as resulted in the confirmation by the commissioners, on June 22, 1891, of the apportionment of the roads' cost upon the lands benefited thereby. From this final order approving and confirming the assessments persons representing about 85 per cent. of the assessments appealed to the circuit court. The persons representing the other 15 per cent. of the assessments, though properly notified of the various proceedings, made no appearance of any kind before the commissioners, and did not join in the appeal. In the circuit court a summons was duly issued and served on all parties assessed who had not appealed for more than 10 days before the term, but they made no appearance in the circuit court, and took no part in the proceedings on appeal, so far as the record discloses. In the circuit court, upon satisfactory proof that the petition, at the time the report of the viewers apportioning the cost of the improvement was acted upon by the commissioners, did not contain the names of a majority of resident landowners, nor of the owners of a majority of acres reported as benefited, the assessment against the land of each party to the appeal was held to be void, and a judgment was rendered canceling the same. Kirsch v. Braun, 153 Ind. 247, 53 N. E. 1082. The total estimated cost of the improvement was $20,000. On July 10, 1890, the commissioners ordered the sale of $12,000 of bonds in anticipation of the collection of the assessments. The bonds were sold in the open market for $12,193 cash. Of the amount thus realized $10,992 were actually expended in the partial construction of the road. For a detailed statement of the facts in the various proceedings before the board reference is made to Kirsch v. Braun, supra.

This action is brought by the appellee against the appellant Smyth, auditor of Benton county, to procure a peremptory writ of mandate to compel Smyth, as such auditor, to place upon the proper tax duplicate the assessments made by the commissioners which were unappealed from, the relator being the owner of certain due and unpaid bonds issued by the commissioners upon the faith and basis of the assessments ordered. The appellants other than the auditor, being the persons interested in the assessments unappealed from, appeared to the action, and upon their request were admitted as parties defendant, and permitted to file a combination pleading, which is termed a several answer of the intervening defendants, and a return for the auditor to the alternative writ. Appellee filed two demurrers to said pleading,-one for insufficiency of facts to constitute a return for the auditor, and the other for want of facts to constitute a defense for the intervening defendants. Both demurrers were sustained, and upon the refusal of the auditor and each of the other defendants to plead further the court rendered judgment ordering that a peremptory writ of mandate issue, commanding the auditor to place the assessments set out in the petition upon the tax duplicate. The errors assigned and presented call in question the action of the court in sustaining the demurrer to each the auditor's return and answer of the intervening defendants.

Deeming it to be to the interest of the litigants, we pass the technical questions as to the sufficiency of the pleading as an answer or as a return for the auditor, which are vigorously controverted by the appellee, and proceed at once to a consideration of the principal question relied upon for reversal, namely: Did the judgment of the circuit court pleaded by appellants canceling and annulling the assessments of all appealing parties on the ground that the original petition for the improvement was not sufficiently signed by persons benefited, as required by section 5 of the law (section 6859, Burns' Rev. St. 1901), have the effect of nullifying the entire gravel road proceeding, and thereby voiding the assessments of those who neither appeared before the commissioners nor joined in the appeal to the circuit court? Appellants other than the auditor urge that the judgment of the circuit court vacating assessments was effective as to them for two reasons: (1) Because, having been summoned by process issued out of the circuit court commanding them to appear to the proceedings on appeal in that court, and having had their names recorded as defendants in the action, they thereby became parties to the appeal, and entitled to the same relief as if they had joined in the appeal in the first instance; and (2) because the judgment of the circuit court annulling the assessments appealed from, having been founded on a finding that at the time of the pretended confirmation of the assessments by the commissioners the original petition was not subscribed by a majority of all the resident landowners and by those owning a majority of the acres of land benefited and liable to be assessed, amounted to a judicial declaration of a want of jurisdiction in the commissioners to make any assessments at all, and, the act being without authority, was therefore void, and incapable of sustaining an assessment.

1. As to the first point, the purpose in view in bringing the nonappealing parties into the circuit court by summons is not disclosed by the record nor by the appellants' brief. The summons gave the circuit court jurisdiction over the persons of the appellants, but it is clear that it did not give the court jurisdiction over the...