Temperly v. City of Indianapolis
| Decision Date | 20 April 1920 |
| Docket Number | 23,365 |
| Citation | 127 N.E. 149,189 Ind. 292 |
| Parties | Temperly et al. v. City of Indianapolis |
| Court | Indiana Supreme Court |
From Marion Superior Court (102,607), Vincent G. Clifford, Judge.
Injunction by Carrie R. Temperly and others against the city of Indianapolis. From a judgment for the defendant, the plaintiffs appeal.
Affirmed.
M. M Bachelder, Harold K. Bachelder and W. C. Bachelder, for appellant.
Samuel Ashby, Thomas D. Stevenson, Harry E. Yockey and Dixon H Bynum, for appellees.
Appellants brought this suit to enjoin the collection of special assessments made against their real estate for the purpose of paying the cost of construction of a sewer, and the expenses incident thereto. Appellees addressed a demurrer to the complaint which was sustained by the trial court; and appellants, refusing to amend or plead further, suffered judgment to go against them on the pleadings. Appellants assign as error the ruling of the court in sustaining the demurrer to their complaint.
The assessment, which appellants seek to have declared void, and the collection of which they seek to enjoin, were made in a proceeding instituted in the Marion Circuit Court and therein prosecuted to final judgment under the provisions of § 8729 Burns 1914, Acts 1909 p. 238. The complaint in this suit attacks the assessments so made collaterally, and it cannot be held sufficient for that purpose unless the facts alleged therein show the judgment fixing such assessments to be absolutely void.
Appellants assert that the judgment imposing the assessments is void, because no notice was given to appellants of the proceeding in which such judgment was entered. On the subject of notice, the statute provides that, after the proceeding is filed in the circuit court, the court shall fix a time when the same will be heard. "And thereupon the clerk of said court shall notify all persons mentioned in such proceedings, or to be injuriously or beneficially affected thereby, that the said proceedings will be heard at a date named, which notice said clerk shall cause to be published once a week, for at least three weeks, in some newspaper of general circulation throughout the county."
The allegations of the complaint show that the notice prescribed was published by the clerk of the Marion Circuit Court in accordance with the provisions of the statute; but it is alleged that such notice was not personally served on any of appellants, and that no personal notice of any kind was given to appellants, and that they had no actual notice of the pendency of the proceeding.
Appellants assert that the statute provides for personal service of the notice on all persons mentioned in such proceedings or to be injuriously or beneficially affected thereby, and that the clerk shall also cause such notice to be published in the manner and for the time prescribed by the statute. When the language of the statute is given its fair and ordinary meaning, there can be little doubt that the legislature intended to provide for notice by publication and did not intend to make provision for personal notice in any form.
Appellant further asserts that, if the statute contemplates no notice other than the notice by publication, such statute is void because its enforcement would violate certain constitutional provisions to which the attention of the court is directed.
Appellants make the application of the "due process of law" provision of the federal Constitution by taking the position that notice by publication, in such a proceeding as the statute under consideration authorizes, is not such notice as to afford due process of law to the owners of property likely to be affected thereby, and that the enforcement of a lien imposed by a judgment rendered in pursuance of such notice would deprive appellants of their property without due process of law.
It has been uniformly held in this state that notice by publication, given in conformity to the statutes authorizing proceedings for the location and construction of highways, drains, sewers and other works of a quasi-public character, is such legal notice as to authorize a judgment ordering the improvement and fixing a lien against real estate affected thereby. Such a notice in such a proceeding is sufficient to confer jurisdiction on the court, and such a judgment in pursuance thereof is rendered in accordance with due process of law. Scott v. Brackett (1883), 89 Ind. 413.
In Scott v. Bracket, supra, the court said: Speaking of the validity of such notice in view of the constitutional provisions here invoked, this court, in a later case said ...
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Shideler v. Martin
...173 Ind. 640, 645, 91 N. E. 242;Hirth-Krause Co. v. Cohen, 177 Ind. 1, 10, 97 N. E. 1, Ann. Cas. 1914C, 708;Temperly v. City of Indianapolis, 189 Ind. 292, 297, 127 N. E. 149, 151. [6] Whether the property added to appellant's tax list was taxable, whether the valuation appealed from expres......
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Shideler v. Martin
... ... v. Cohen ... (1912), 177 Ind. 1, 10, 97 N.E. 1, Ann. Cas. 1914C 708; [192 ... Ind. 580] Temperly v. City of Indianapolis ... (1920), 189 Ind. 292, 297, 127 N.E. 149, 151 ... ... ...
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Fritz v. Board of Trustees of Town of Clermont, 1069
...in the proceedings where it is sought to affect such property directly and specifically. Appellees rely upon Temperly v. City of Indianapolis (1920), 189 Ind. 292, 127 N.E. 149 for the proposition that notice by publication was sufficient under the circumstances such as we have here. We fee......
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Gendron v. Borough of Naugatuck
...is considered to be effective notice whether or not it is observed by those for whom such information is intended. Temperly v. City of Indianapolis, 189 Ind. 292, 127 N.E. 149; Drabinski v. Auditor General, 296 Mich. 463, 296 N.W. Though there is no statutory mandate as to who should cause ......