Strieb v. Cox
| Decision Date | 21 June 1887 |
| Docket Number | 12,809 |
| Citation | 12 N.E. 481,111 Ind. 299 |
| Parties | Strieb v. Cox, Treasurer, et al |
| Court | Indiana Supreme Court |
From the Grant Circuit Court.
The judgment is affirmed, with costs.
J. A Kersey and L. D. Baldwin, for appellant.
A Steele and R. T. St. John, for appellees.
Errors are assigned here by appellant, the plaintiff below, upon the record of this cause, which call in question (1) the overruling of his demurrer to the third paragraph of appellees' answer, (2) the sustaining of appellees' demurrer to the first and second paragraphs of appellant's reply, and (3) the sustaining of appellees' demurrer to the third paragraph of appellant's reply.
From these assignments of error, it is manifest that this case is presented here solely upon the pleadings of the parties respectively. The suit was by appellant, Strieb, as plaintiff, against the appellees, the treasurer, auditor and board of commissioners of Grant county, as defendants. In his complaint herein, which was filed below on the 23d day of January, 1884, appellant alleged that he was a citizen and taxpayer of Grant county, and had paid all taxes legally assessed against and due from him in such county; and that he was the owner, in fee simple, of certain parcels of real estate, particularly described, all in Grant county.
Appellant further alleged that, on the 14th day of August, 1883, the value of all the taxable property within Grant county, as ascertained by the last assessment for State and county taxes, prior to the day and year last named, was $ 8,972,840, and that two per centum of that amount was $ 179,456.80; that, on such 14th day of August, 1883, and for three months previously, such county of Grant was indebted in the sum of $ 280,301.33, of which indebtedness of such county the sum of $ 215,000 was then and since evidenced by the bonds of such county of Grant, then and since outstanding as evidences of such indebtedness; that, on such 14th day of August, 1883, such county of Grant being so indebted as aforesaid, the board of commissioners of such county then and there contracted and issued the bonds of such county, for further indebtedness, in the sum of $ 43,000; that there was not then, nor had there been since, any money in the treasury of Grant county, out of which such additional indebtedness of $ 43,000, or any part thereof, could be paid or that could be applied to the payment thereof.
And appellant further alleged that, for the payment of the bonds of such county of Grant, issued for and evidencing such additional indebtedness of $ 43,000, the board of commissioners of such county had levied and assessed a special tax of $ 1,104.50 upon appellant's real estate described in his complaint, and had attempted to order, adjudge and decree the same a first lien upon all such real estate, and had caused such county auditor to place the same on a special tax duplicate, called a gravel road tax duplicate, and to deliver the same to such county treasurer; and that such treasurer then had such duplicate in his hands, and was threatening and about to proceed to collect such pretended assessment and tax by distress and sale of such real estate, to the great and irreparable injury of appellant. Wherefore, etc.
In the third paragraph of their joint answer, appellees alleged that, on April 6th, 1881, certain citizens and land-owners of Grant county petitioned the board of commissioners of such county for the location and construction of a free gravel road, known as the Marion and Huntington free gravel road, and being the same road named in the complaint herein; that such petition was duly considered and its prayer granted by such board of commissioners; that said petitioners also filed their bond as required by the statute; that thereupon such board of commissioners appointed three disinterested freeholders to view, locate and lay out said road, who were duly notified thereof by such county auditor; that after having given due notice of the time and place of meeting, and of the kind of improvement asked for, such viewers met at such time and place, and, having first taken an oath for the faithful and impartial discharge of their duties as such, they duly proceeded to view, examine, lay out and locate the said road according to law; that such viewers and their engineer made their report to such county board, at its next regular session, and therein stated that said road would, when completed, be of public utility, and reported their estimate of the expense of such improvement; and that, upon the return of said report, such board of commissioners found and entered of record that said road would be of public utility and benefit, and then and there ordered that said improvement be made according to law.
And appellees further averred, that a majority of the resident land-owners of such county, whose lands would be affected, and being a majority of the owners of the whole number of acres of lands reported as benefited, subscribed said petition; that after such order was finally made, such county board ordered and appointed ----- ----- as engineer of said work, who, with the approval of such board, let such work to contract according to the statute in such case provided, after having given public notice of such letting for two weeks in a newspaper printed and published in Grant county; that such county board appointed three disinterested freeholders of said county who, upon actual view, apportioned the estimated expense of said improvement upon the lands so found to be benefited thereby, and made their report thereof to such county auditor; that when such report was so made and filed, such county auditor gave notice of it and of the meeting of such county board to consider the same, by publication in a newspaper of general circulation in said county, for three weeks successively; that appellant well knew that such proceedings had been had, and that such assessments on his lands had been made; that, on the day named in said notice, appellant appeared before such county board and remonstrated, in writing, against said assessments on his said lands; that such county board then referred the assessments against appellant's lands and all other lands affected by said improvement to new viewers, to wit, etc., three disinterested freeholders of such county, to review and report thereon; and that afterwards, at the March term, 1883, of said board of commissioners, such reviewers made and filed their report of the estimate and apportionment of expense on all such lands, including those of appellant; that thereupon appellant again appeared before said county board and, in writing, remonstrated against his said assessments, which remonstrance was overruled by such board; and that, with appellant's full knowledge, such county board duly confirmed said assessment and apportionment. All of which proceedings were had more than thirty days before the commencement of this suit, and remained of record in full force and unappealed from.
And the appellees averred that, upon the faith of such assessment the said road was let to contract, and was fully and finally completed, as appellant well knew, before he commenced this suit; that such bonds in his complaint named, as appellant knew at the time, were ordered by such county board to be issued before he filed his said remonstrance; that during all the time the said road was being constructed appellant was a resident of Grant county, and in the neighborhood of such road, and...
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