Wall v. City of Muncie

• Decision Date: 28 May 1929
• Docket Number: No. 25772.,25772.
• Citation: 166 N.E. 659,201 Ind. 170
• Parties: WALL v. CITY OF MUNCIE et al.
• Court: Indiana Supreme Court

201 Ind. 170

166 N.E. 659

WALL

v.CITY OF MUNCIE et al.

No. 25772.

Supreme Court of Indiana.

May 28, 1929.

Appeal from Superior Court, Delaware County; Alonzo Bales, Special Judge.

Suit by Harold C. R. Wall against the City of Muncie and others. Judgment for plaintiff, and defendants appeal. Transferred from the Appellate Court of Indiana under section 1357, cl. 2, Burns' Ann. St. 1926 (Acts 1901, c. 247, p. 565). Appeal dismissed.

Superseding opinion in 155 N. E. 55.

McClellan & Hensel, of Muncie, for appellants.

Orr & Clark, A. D. McKinley, and George H. Koons, Jr., all of Muncie, for appellee.

TRAVIS, J.

This is a suit in equity to annul and to set aside the action of the board of public works of appellee city which accepted a sewer as completed according to contract by and between the city and the contractor, and to annul the assessments and to decree them null and void and canceled, to quiet title to appellant's lands against the assessments, and to perpetually enjoin all appellees from collecting the assessments, for the reasons that the sewer had not been constructed, and the contractor had not given the maintenance bond, as provided by the contract.

The suit is by appellant, whose real estate was assessed to aid in paying the cost of the sewer against appellee city, its board of public works, and the individual members thereof, its officers, viz. the mayor, the controller, the treasurer, and the Harris-Andrews-Henderson Company, which company is the contractor.

Such action was taken by appellee city, through its board of public works, pursuant to statute, which resulted in the letting of the contract involved to appellee contractor; the acceptance of the sewer as completed according to the contract; and the levying and confirmation of assessments of benefits to defray the cost of the sewer.

Upon trial, the facts were found specially, from which conclusions of law were stated, viz.:

“1. That the law is with the plaintiff.

“2. That the defendants and each of them should be enjoined from enforcing or attempting to enforce, collecting or attempting to collect the assessments or any one of the assessments or any part of the assessments contained in said final assessment roll for the construction of said sewer, as against the plaintiff or as against any of the lands described in plaintiff's complaint and lying in said drainage district heretofore described in the special findings of fact, until the dirt in and under and around the the composing said sewer at or placed along tile line of the seventy-two inch and forty-eight inch sewer be carefully tamped and rammed solidly around and under said tile and until a proper maintenance bond in such sum as in the contract provided for with resident sureties, thereon with the Board of Public Works of the City of Muncie, be filed by the contractor and approved by said Board and by the judge of the Delaware Superior Court.

“3. That the plaintiff is entitled to recover his costs in this action from the defendants herein.”

Thereupon the court rendered its order or decree, viz.:

“It is therefore considered, adjudged and decreed by the Court that the defendants, and each of them should be, and are hereby enjoined from enforcing or attempting to enforce, collecting or attempting to collect, the assessments, or any one of the assessments or any part of the assessments contained in said final assessment roll for the construction of said sewer, as against the plaintiff or as against any of the land described in plaintiff's complaint and lying in said drainage district described in the special finding of facts herein, until the dirt in and under and around the tile composing said sewer at or placed along the line of the 72 inch and 48 inch sewer be carefully tamped and rammed solidly around and under said tile, and until a proper maintenance bond in such sum as in the contract provided for, with resident sureties thereon, be filed by the contractor with the Board of Public Works, of the City of Muncie, Indiana, and approved by said board and by the Judge of the Delaware Superior Court.

“It is further adjudged that the plaintiff recover of the defendants his costs in the proceeding, taxed at $-.”

Errors upon appeal are pleaded on exceptions to the conclusions of law, which are not considered because the appeal was not in time after judgment to give jurisdiction here.

Appellees move to dismiss the appeal for the reasons: (1) That the decree or judgment from which this appeal is taken is not final; and (2) the decree or judgment being an interlocutory order for a...