Tucker v. Sellers

Citation30 N.E. 531, 130 Ind. 514
Case DateMarch 11, 1892
CourtSupreme Court of Indiana

130 Ind. 514
30 N.E. 531

TUCKER et al.
v.
SELLERS.

Supreme Court of Indiana.

March 11, 1892.


Appeal from circuit court, Putnam county; SILAS D. COFFEY, Judge.

Suit by William M. Sellers against Ephraim Tucker, treasurer, and others, to restrain the collection of a certain assessment. From a judgment for plaintiff, defendants appeal. Affirmed.


Smiley, Neff & Myers, for appellants. Moore Bros., for appellee.

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 cannot, 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 positions 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

[30 N.E. 532]

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. Railway Co. v. Sutton, 30 N. E. Rep. 291, (this term;) State v. Wolever, 127 Ind. 306-315, 26 N. E. Rep. 762; Alexander v. Gill, 30 N. E. Rep. 525, (this term;) Jackson v. Smith, 120 Ind. 520, 522, 22 N. E. Rep. 431. 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 v. Hall, 70 Ind. 469;Hill v. Probst, 120 Ind. 528, 22 N. E. Rep. 664; Reynolds v. Faris, 80 Ind. 14;Hilton v. Mason, 92 Ind. 157;Strieb v. Cox, 111 Ind. 299-305, 12 N. E. Rep. 481, and cases cited; Board v. Montgomery, 106 Ind. 517-521, 6 N. E. Rep. 915, and cases cited. It has been the rule in this state since the decision in Evansville, etc., 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...

To continue reading

Request your trial
37 practice notes
  • Bohannan v. Bohannan, No. 19272
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Junio 1960
    ...under consideration belongs it has jurisdiction of the particular case. Jackson v. Smith, 120 Ind. 520, 22 N.E. 431; Tucker v. Sellers, 130 Ind. 514, 30 N.E. 531; McCoy v. Able, 131 Ind. 417, 30 N.E. 528, rehearing denied 131 Ind. 417, 31 N.E. 453; Pierson v. Republic Casualty Co., 200 Ind.......
  • Sinclair v. Gunzenhauser, No. 21,728.
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Marzo 1912
    ...47 N. E. 822;Clark v. Hillis (1893) 134 Ind. 421, 34 N. E. 13;Palmerton v. Hoop (1892) 131 Ind. 23, 30 N. E. 874;Tucker v. Sellers (1892) 130 Ind. 514, 30 N. E. 531;Tucker v. O'Neal (1892) 130 Ind. 597, 30 N. E. 533;Essig v. Lower, 120 Ind. 239, 21 N. E. 1090;Quarl v. Abbett (1885) 102 Ind.......
  • Tube City Mining & Milling Co. v. Otterson, Civil 1385
    • United States
    • Supreme Court of Arizona
    • 29 Diciembre 1914
    ...of a particular case depends on the facts, the decision of the tribunal is conclusive as against a collateral attack. Tucker v. Sellers, 130 Ind. 514, 30 N.E. 531; Spencer v. Spencer, 31 Ind.App. 321, 99 Am. St. Rep. 260, 67 N.E. 1018. In Manley v. Park, 62 Kan. 553, 64 P. 28, it is said: &......
  • Stone v. Elliott , No. 21964.
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Noviembre 1914
    ...v. Smith, 120 Ind. 520, and cases collated page 523 [22 N. E. 431];Alexander v. Gill, 130 Ind. 485 [30 N. E. 525];Tucker v. Sellers, 130 Ind. 514 [30 N. E. 531];Evansville, etc., Co. v. Winsor, 148 Ind. 682 [48 N. E. 592]; Van Fleet, Col. Att. § 66.” See, also, De Haven v. Covalt, 83 Ind. 3......
  • Request a trial to view additional results
37 cases
  • Bohannan v. Bohannan, No. 19272
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Junio 1960
    ...under consideration belongs it has jurisdiction of the particular case. Jackson v. Smith, 120 Ind. 520, 22 N.E. 431; Tucker v. Sellers, 130 Ind. 514, 30 N.E. 531; McCoy v. Able, 131 Ind. 417, 30 N.E. 528, rehearing denied 131 Ind. 417, 31 N.E. 453; Pierson v. Republic Casualty Co., 200 Ind.......
  • Sinclair v. Gunzenhauser, No. 21,728.
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Marzo 1912
    ...47 N. E. 822;Clark v. Hillis (1893) 134 Ind. 421, 34 N. E. 13;Palmerton v. Hoop (1892) 131 Ind. 23, 30 N. E. 874;Tucker v. Sellers (1892) 130 Ind. 514, 30 N. E. 531;Tucker v. O'Neal (1892) 130 Ind. 597, 30 N. E. 533;Essig v. Lower, 120 Ind. 239, 21 N. E. 1090;Quarl v. Abbett (1885) 102 Ind.......
  • Tube City Mining & Milling Co. v. Otterson, Civil 1385
    • United States
    • Supreme Court of Arizona
    • 29 Diciembre 1914
    ...of a particular case depends on the facts, the decision of the tribunal is conclusive as against a collateral attack. Tucker v. Sellers, 130 Ind. 514, 30 N.E. 531; Spencer v. Spencer, 31 Ind.App. 321, 99 Am. St. Rep. 260, 67 N.E. 1018. In Manley v. Park, 62 Kan. 553, 64 P. 28, it is said: "......
  • Stone v. Elliott , No. 21964.
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Noviembre 1914
    ...v. Smith, 120 Ind. 520, and cases collated page 523 [22 N. E. 431];Alexander v. Gill, 130 Ind. 485 [30 N. E. 525];Tucker v. Sellers, 130 Ind. 514 [30 N. E. 531];Evansville, etc., Co. v. Winsor, 148 Ind. 682 [48 N. E. 592]; Van Fleet, Col. Att. § 66.” See, also, De Haven v. Covalt, 83 Ind. 3......
  • Request a trial to view additional results

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