Vandagrifft v. State ex rel. Sudbrock

• Decision Date: 10 May 1927
• Docket Number: No. 24464.,24464.
• Citation: 156 N.E. 465,199 Ind. 210
• Parties: VANDAGRIFFT et al., Board of Public Works, v. STATE ex rel. SUDBROCK.
• Court: Indiana Supreme Court

199 Ind. 210

156 N.E. 465

VANDAGRIFFT et al., Board of Public Works,

v.STATE ex rel. SUDBROCK.

No. 24464.

Supreme Court of Indiana.

May 10, 1927.

Appeal from Marion Circuit Court; Charles O. Roemler, Special Judge.

Suit by the State, on the relation of Arthur F. Sudbrock, against Virgil Vandagrifft and others, members of the Board of Public Works of the City of Indianapolis, to mandate them to correct and amend an assessment roll in improvement proceedings. Judgment for relator, and defendants appeal. Affirmed.

James M. Ogden and William T. Bailey, both of Indianapolis, for appellants.

Shirley, Whitcomb & Dowden, of Indianapolis, for appellee.

GEMMILL, C. J.

The relator brought suit against the members of the board of public works of the city of Indianapolis to mandate them to correct and amend a certain assessment roll in the improvement proceedings for the widening of Forty-Fifth street in said city, so that it would show that the relator was awarded damages in the sum of $1,400, and was assessed benefits in the sum of $140 and also to mandate them to take all other action in order for the relator to receive from the department of finance of the city a warrant on the treasurer of the city of Indianapolis for the sum of $1,260. The defendants filed an answer in general denial. The cause was tried by the court, which found for the relator and entered judgment for him. The appellants have appealed, assigning as error that the court erred in overruling their motion for a new trial. Since the appeal was taken there have been several changes in the personnel of the board of public works, and the present members of the board have been substituted as appellants.

There was an agreed stipulation of facts which showed as follows: On October 24, 1921, the then members of the board of public works acting as said board of public works of said city adopted and put in force a certain improvement resolution No. 10,080, whereby and in which proceedings action was taken for the widening of Forty-Fifth street in the city from the west property line of Pennsylvania street to a point 200 feet west of Pennsylvania street. The resolution described the property which would be injuriously and beneficially affected by the proposed improvement, and it created a taxing district for the purpose of assessing benefits and awarding damages on account of said improvement. The relator, Arthur F. Sudbrock, was the owner of certain real estate in the taxing district, and part of his real estate was condemned and taken for the widening of the street. The board of public works caused notice to be given by publication that on November 11, 1921, the board would receive and hear remonstrances and objections from all persons interested in or affected by said improvement. No remonstrances or objections were filed; and on said day the board took final action confirming and approving said improvement resolution, and entered a final order confirming and approving said resolution and condemning and taking certain real estate of the relator for the purpose of improvement. The board of public works then caused an assessment roll to be prepared in the matter of said improvement, which awarded the relator damages in the sum of $1,400, and assessed benefits against his real estate in the sum of $140. Notice was then given by the board of public works to the owners of real estate in the taxing district, showing amount of benefits and amount of damages, if any, assessed against each; and notifying them that the board on March 29, 1922, would hear any remonstrances. On March 29, no action was taken by the board, and the meeting and hearing was postponed until March 31, 1922, and on that day same was continued until April 5, 1922. On March 29, the chairman of the board of public works requested counsel for relator to furnish the data and estimates on which the original action was taken awarding him damages in the sum of $1,400. Same was furnished in a letter on April 3, 1922, which stated that relator's damage amounted to $2,090. On April 5, 1922, at said postponed meeting, the board took final action approving said assessment roll and said proceedings to widen said Forty-Fifth street under and pursuant to said improvement resolution, and the board duly made and entered in its minute record a final order confirming and approving in all things an assessment roll and the proceedings for the improvement. On April 6, 1922, the next day after the confirmation and approval of the final assessment roll in said proceedings, the board caused to be delivered to the department of finance of said city a final assessment roll in the proceedings, which showed that the relator had been awarded damages in the sum of $1,000 and had been assessed benefits in the sum of $500. On April 14, 1922, Arthur F. Sudbrock, the relator, demanded of the members of the board of public works that they correct and amend said final assessment roll so delivered to the department of finance so that same would show the true and correct amount of benefits assessed against and damages awarded each of the owners of real estate in the taxing district for said improvement. The board refused to do this, and on that day, after receiving the notice and demand of the relator, the board adopted a resolution for the purpose...