State ex rel. Mayfield v. Myers
| Decision Date | 20 February 1885 |
| Docket Number | 11,765 |
| Citation | 100 Ind. 487 |
| Parties | The State, ex rel. Mayfield, v. Myers |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
C. M Wetzel, for appellant.
F. W Viehe and M. J. Niblack, for appellee.
Appellant as commissioner of drainage for Knox county, commenced this suit against appellee for the collection of an assessment of benefits to pay for the construction of the drain.
A demurrer to the complaint was overruled; the defendant answered in two paragraphs, specially and the general denial a demurrer to the first paragraph of answer was overruled; plaintiff elected to stand upon the ruling upon his demurrer to the first paragraph of answer, and declined to further reply, and judgment was rendered for the defendant.
The only error assigned is the overruling of the demurrer to the first paragraph of the answer.
The material averments in the first paragraph of answer are as follows: That the petition for drainage "neither at the time it was filed, nor at any time thereafter, stated that by the proposed drainage either the public health would be improved, or that any highway or street would be benefited thereby, or that the proposed work would be of public utility, and did not state that in the opinion of the petitioners, the proposed drainage would have any of these effects, and stated nothing concerning these matters." The above is copied from appellee's brief.
This paragraph of answer only attacks the sufficiency of the petition, and comes too late to be a defence to an action to collect an assessment. The court had jurisdiction of the subject-matter.
Objections to the petition, in order to be available, must be made before the order or "judgment of the court confirming and establishing the assessment of benefits and injuries." See section 4280, R. S. 1881, and section 6 of the act approved March 8th, 1883, Acts 1883, p. 173, which read as follows: "This act shall be liberally construed to promote the drainage and reclamation of wet or overflowed lands; and collections of assessments shall not be defeated by reason of any defect in the proceedings occurring prior to the judgment of the court confirming and establishing the assessment of benefits and injuries; but such judgment shall be conclusive that all prior proceedings were regular and according to law." But if this paragraph of answer be bad, there was no error in overruling the demurrer to...
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