Tucker v. Sellers

Decision Date11 March 1892
Docket Number14,762
PartiesTucker, Treasurer, et al. v. Sellers
CourtIndiana Supreme Court

From the Putnam Circuit Court.

Judgment affirmed.

J. A Smiley, W. G. Neff and J. L. Myers, for appellants.

M. A Moore and G. C. Moore, for appellee.

Elliott C. J. Coffey, J., did not take any part in the decision of the case.


Elliott, C. J.

The appellee seeks by his complaint an injunction against the appellant as treasurer, restraining him from collecting an assessment levied upon the land of the former for the construction of a free gravel road. The essential averments of the complaint are that the viewers reported that the land of the appellee was not liable to assessment; that he was informed by the board of commissioners and the viewers that he could not contest the assessment, as his land was not within the territory subject to assessment, and that he was not notified of any subsequent proceedings. The appellants' counsel have not pointed out any objections to the complaint, but say, in general terms, that it is not good. We must, under the long-settled rules of the court, decline to search for defects in the complaint, and assume that none exist. Counsel can not, by general assertions in their briefs, secure a reversal of a judgment because of supposed defects in a pleading. Defects which are not apparent from a bare statement, must be specifically pointed out by counsel, and they must support their position by argument, and, if need be, by the citation of authorities.

The answer is long, but we think its material allegations can be briefly stated. In substance, the facts stated are these: A petition for the road named in the complaint was filed, and proper steps taken up to the report of the viewers. The viewers, as we understand the answer, did not include in their report the land of the appellee. The reason for not including it was that it was included in a report made upon a petition for another road. The petition for the first road, as we may designate the one not named in the complaint, was dismissed. After this petition was dismissed, the board ordered the lands that had been omitted from the former report upon the second road (the one described in the petition) to be assessed. In obedience to this order, the engineer placed the omitted lands upon the map prepared by him, and the board, in regular session, directed the viewers to view the lands, but by inadvertence this order was not entered of record. The plaintiff's land is within one-fourth of a mile of the line of the road. The assessment upon his land was just and equitable. After the viewers made their report, the auditor gave the proper notice of the meeting of the board appointed to hear and determine complaints of property-owners. At the meeting of the board "plaintiff," as the answer avers, "appeared, and filed written objections to so much of the assessment as included his land, which were overruled, but no appeal was taken." In June, 1887, the auditor reported that the estimated cost of the road reported to the board was erroneous, and that it would cost $ 5,924.22 more than the sum estimated by the engineer. Acting upon the report of the auditor, the board ordered a reassessment to be made. Notice of the time and place of the meeting of the board to hear complaints against the report making the reassessment was given. The original petition for the construction of the road was filed in 1883. The road was constructed under the contract awarded by the board, and was completed in 1885. Bonds were issued by the board to pay for the construction of the road.

The board of commissioners undoubtedly had jurisdiction of the general subject. It is, indeed, the court of exclusive original jurisdiction. Our decisions, as well as the decisions of many other courts, explicitly assert this general doctrine. The jurisdiction is not merely to order free gravel roads to be constructed, but to order lands to be assessed. Chicago, etc., R. W. Co. v. Sutton, ante, p. 405; State, ex rel., v. Wolever, 127 Ind. 306, 26 N.E. 762 (315); Alexander v. Gill, ante, p. 485; Jackson v. Smith, 120 Ind. 520, 22 N.E. 431 (522). As the board had jurisdiction of the general subject, its order that the petition for the road was sufficient, and was signed by the proper number of freeholders, is conclusive as against a collateral attack, such as that made in this case. Board, etc., v. Hall, 70 Ind. 469; Hill v. Probst, 120 Ind. 528, 22 N.E. 664; Reynolds v. Faris, 80 Ind. 14; Hilton v. Mason, 92 Ind. 157; Strieb v. Cox, 111 Ind. 299, 12 N.E. 481 (305), and cases cited; Board, etc., v. Montgomery, 106 Ind. 517, 6 N.E. 915 (521), and cases cited. It has been the rule in this State since the decision in Evansville, etc., R. R. Co. v. City of Evansville, 15 Ind. 395, that where there is general jurisdiction of the subject, and the jurisdiction of the particular case depends upon the facts, the decision of the tribunal is conclusive as against a collateral attack. This rule has been again and again asserted by our own court, as well as by the Supreme Court of the United States, and many other courts. McEneney v. Town of Sullivan, 125 Ind. 407, 25 N.E. 540 (412), and cases cited. See authorities cited in Elliott Roads and Streets, p. 219, notes 3 and 4. It can not be said in this instance that the proceedings were coram non judice, for there was a court, there was authority over a general subject, and there was an assumption of jurisdiction.

There was, it is very clear, jurisdiction of this particular instance up to and including the time the appellee appeared before the board of commissioners and objected to the original assessment against his land. The law is that one who appears can not afterwards object that there was no jurisdiction over him and his property. Washington Ice Co. v. Lay, 103 Ind. 48, 2 N.E. 222. See, also, authorities cited in Elliott Roads and Streets, p. 245, note. We do not, of course, mean to be understood as affirming that parties may, by consent or acquiescence, confer jurisdiction of the general subject. That can only be conferred by law. But we do affirm that jurisdiction of a particular instance falling within the scope of the general subject may be given by consent, either express or implied. We are not, in this instance, confronted with the question whether there can be an estoppel in a case where its principal element is a judgment rendered in a case where there was an absolute and entire want of jurisdiction. Here, as we have seen, the law gives jurisdiction of the general subject, and there was, so far as the question is presented by this collateral attack, a rightful exercise of jurisdiction up to the proceedings relative to the order directing a reassessment. There was authority to order an additional assessment, and over that subject there was general jurisdiction. Board, etc., v. Fullen, 111 Ind. 410, and authorities cited; Gavin v. Board, etc., 104 Ind. 201, 3 N.E. 846; Campbell v. Board, etc., 118 Ind. 119, 20 N.E. 772, and authorities cited; Rogers v. Voorhees, 124 Ind. 469, 24 N.E. 374.

The authorities to which we have referred conclusively answer the contention of the appellee's counsel that the proceedings prior to the additional assessment are void, and may be overthrown by a collateral attack. We have many cases wherein it was held that the collateral attack was unavailing although there was much stronger ground for the overthrow of the entire proceedings than any here shown by counsel against the proceedings up to the order for a second assessment. Otis v. De Boer, 116 Ind. 531, 19 N.E. 317, and cases cited; Muncey v. Joest, 74 Ind. 409; Brocaw v. Board, etc., 73 Ind. 543; Prezinger v. Harness, 114 Ind. 491, 16 N.E. 495; Johnson v. State, etc., 116 Ind. 374, 19 N.E. 298, and cases cited.

The question of difficulty is as to the proceedings subsequent to the first assessment, and the orders based on it. The authorities are decisively against the right to make an additional assessment without notice to the persons upon whose property the assessment is levied. While the authority to make such an assessment in undoubted, it is yet quite as certain that it can not be made without notice. The notice for the original assessment spends its force when that assessment is finally made, and a second assessment can not be made unless the land-owners are given "their day in court." The right to "a day in court" is a constitutional right that even an express statute can not take away. Board, etc., v. Fullen, 118 Ind 158, 20 N.E. 771; Gavin v. Board, etc., supra; Martin v. Neal, 125 Ind. 547, 25 N.E. 813 (555); Board, etc., v. Fullen, supra; Campbell v. Board, etc., 118 Ind. 119, 20 N.E. 772 (120); Board, etc., v. Fahlor, 114 Ind. 176, 15 N.E. 830; Abbett v. Board, etc., 114 Ind. 61; Board, etc., v. Gruver, 115 Ind. 224; Kuntz v. Sumption, 117 Ind. 1, 19 N.E. 474. It is true that the object of the statute is to impose upon lands specially benefited by the construction of a gravel road the burden of paying the cost of constructing it, and to relieve the county from the burden. Rogers v. Voorhees, supra; Board, etc., v. Fullen, 118 Ind. 158, 20 N.E. 771; Strieb v. Cox, 111 Ind. 299, 12 N.E. 481. But this object can not...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT