The City of Bloomington v. Phelps
| Citation | 49 N.E. 581,149 Ind. 596 |
| Decision Date | 25 February 1898 |
| Docket Number | 18,070 |
| Parties | The City of Bloomington v. Phelps et al |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
Reversed.
H. C Duncan and I. C. Batman, for appellant.
Louden & Louden, for appellee.
The transcript in this case discloses the loss of the original complaint, as filed by the appellant, and the filing of a substituted complaint by permission of the trial court, which substituted complaint is embodied in and identified by the transcript, at the point where such permission was given.
The appellees, upon affidavits and motion in this court, sought a writ of certiorari to correct the record, upon the alleged ground that the substituted complaint so copied in the transcript was not properly of the files of the lower court in the cause. The writ was granted, that the clerk might, if he chose to do so, correct his certificate, but this he did not do. We are now asked, upon affidavits and counter affidavits filed by the parties, to disregard that part of the transcript designated as the "substituted complaint."
This we cannot do. The remedy upon a question of the identity of the pleadings in a cause, is to be had only in the trial court and, when a transcript filed in this court properly identifies a pleading as a part of the record, we are bound by it. Any other rule, as must be apparent, would lead to hopeless confusion in the settlement of controverted questions of the identity of parts of the record. The trial court is always possessed of better knowledge and more direct information of its files and proceedings than this court can be, and such disputes as that here sought to be made relates to the files of the lower court, and not to those of this court. That court is the custodian of its own files, and, when a transcript properly certifies a pleading to this court, it must be accepted as conclusive until we are advised that the clerk will change his certificate, or that the lower court has, by some proper action, made the record or files below disclose a condition differing from that disclosed by the transcript.
The principal question in the case is as to the priority of an alleged lien for street improvements, made under the Barrett Law, section 4288, et seq., Burns' R. S. 1894, and a mortgage alleged to have been executed by the property owner to the appellees before any of the proceedings for the improvement. This question arises upon special findings of facts and conclusions of law stated by the trial court. The findings give in detail the proceedings of the city, a part of which only are in dispute.
As we understand the appellee's learned counsel, it is not objected that the notices required by the statute were not given, but it is claimed that no proof of the publications required was ever made. It is expressly found that the common council passed a resolution of the necessity of the improvement, by a particular method and within given limits, and fixed a day and hour for hearing objections to the making of such improvements; that thereafter, and before the day so fixed, two weeks' notice was given by a publication in a newspaper, whose circulation and name are stated, which notice gave the time and place of such hearing, but that the record of the proceedings do not show that proof of notice was made. It is further found that, at a time subsequent to the date fixed for such hearing, the common council adopted an ordinance, by a two-thirds vote, for the construction of said improvement according to the plans and specifications adopted therefor, and which said ordinance was published for three weeks in a newspaper, of name and circulation stated, but that the records of the proceedings do not show that proof of such publication was made; that advertisement for bids was made for three weeks, etc., but that the record of the proceedings does not disclose that proof of publication thereof was made.
It is insisted for the appellees that by section 481, Burns' R. S. 1894, proof of publication, in such proceedings, is required, and that in the absence thereof the proceedings are without jurisdiction, and consequently void.
That proceedings without jurisdiction are ordinarily of no validity may be conceded, but that the failure of the record to affirmatively disclose the proof of publication defeats jurisdiction, or that the statute last cited requires proof of publication, are propositions not so readily conceded. That provision of the statute, a part of the civil code, is as to the manner in which proof of publication may be made, and is not a requirement that proof shall be made only in...
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