Wiles v. Hoss
| Decision Date | 18 April 1888 |
| Docket Number | 13,048 |
| Citation | 16 N.E. 800,114 Ind. 371 |
| Parties | Wiles v. Hoss |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
The judgment is affirmed, with costs.
J. S Duncan, C. W. Smith, J. R. Wilson and J. A. Holman, for appellant.
R. E Smith, L. Ritter, E. F. Ritter and B. W. Ritter, for appellee.
In this case, errors are assigned here by appellant, Wiles, the defendant below, which call in question (1) the judgment of the court below, in general term, affirming the judgment of such court at special term, and (2) the sufficiency of the facts stated in the amended complaint to constitute a cause of action. These alleged errors, we will consider in the inverse order of their statement, and decide the questions thereby presented.
In his amended complaint, which is the only complaint in the record of this cause and will be spoken of as the complaint in this opinion, appellee, Hoss, alleged that, at the dates of the acts thereinafter set forth, appellant, Wiles, was and had been since the owner in fee simple of a large number of lots, particularly described, in the town of Brightwood, in Marion county, Indiana; that each and all of the aforesaid lots fronted or bordered upon Hope street, between Willow and Schofield streets, which streets and lots were within the corporate limits of such town of Brightwood; that, on the day of -----, 188-, a petition was presented to the board of trustees of such town, signed by a majority of all the resident owners, living and residing within said town, of all the lots and parcels of land bordering upon said Hope street, between said Willow and Schofield streets, estimating by measuring the front lines of the lots and parcels of land bordering upon said Hope street between the streets named, praying said board of trustees to improve said Hope street and sidewalks between said points (being a distance of not less than one square), by grading and gravelling the same according to plans and specifications to be by them adopted; setting out at length a copy of such petition and of the names of the owners thereunto attached.
Appellee further alleged that said petition was signed by all the resident owners of lots and parcels of land bordering upon Hope street, between Willow and Schofield streets, and that the improvement prayed for was not less than one square in length; that, on the day of -----, 188-, at a regular meeting of the board of trustees of said town, such board made a written order for said improvement, and made and adopted proper and sufficient plans and specifications of the nature, character and plan of such improvement, by a unanimous vote of the board, which order, specifications and vote were filed with the proper officer and recorded in the proper records of such town, setting out copies thereof; that, thereafter, in 1883, said board of trustees ordered its clerk to advertise for proposals to do said work, in the "Indianapolis Times," for seven consecutive days, which advertisement was made, commencing on April 15th, 1883, and like notices were posted up in four public places in said town of Brightwood, prior to the day fixed for receiving such proposals, to wit, April 26th, 1883, giving a copy of such advertisement; that, on such last named day, written proposals to do such work were received by said board of trustees from three different parties, of whom the appellee was one, and proposed to do said work, according to the plans and specifications, for seventy-eight cents per lineal foot front on each side, setting out a copy of appellee's written proposal; that appellee's proposal and bid for said work, being the lowest and best bid received, was accepted by said trustees at a regular meeting thereof, on April 26th, 1883, and their written acceptance thereof was entered of record in the proper record of said town, giving a copy of such record; that time was given to appellee until May 5th, 1883, to file his bond in the penalty of $ 1,000, conditioned for the proper completion of said work according to said ordinance, profile, plans and specifications and advertisement, and such bond with sureties was accordingly filed within the time limited, setting out a copy of such bond; and that, on May 3d, 1883, said bond was duly accepted by said trustees at their regular meeting, and their acceptance thereof was duly entered of record in the proper records of said town, giving a copy of such record entry. And appellee further averred that he improved, graded and gravelled said Hope street and sidewalks, between Willow and Schofield streets, in all things according to said contract, and completed the same to the satisfaction and acceptance of said trustees, within the time limited; that the engineer of said town and superintendent of said work examined and approved the same and reported to said trustees that the work was completed according to contract, and that, thereupon, said work was approved and accepted by said board of trustees; that the total cost of said improvement was $ 2,199.62; that the entire length of the whole line so improved was one thousand four hundred and ten feet on each side, making a total length of front line of two thousand eight hundred and twenty feet; that the length of the front line of the several lots, owned as aforesaid by defendant, Wiles, bordering on the part of Hope street so improved, upon both sides of the street, was in the acceragae one thousand one hundred and seventy-seven feet three inches, giving also the length of the front line of each lot separately; that the board of trustees estimated the cost of said improvement according to the whole length thereof per running foot, and estimated and apportioned the amount of said contract price to the different lots and parcels of land bordering on that portion of said street so improved, and required the owners of the several lots to pay the said amounts so estimated and allowed, made out and delivered to appellee a first and final estimate in writing for said work, and set out and specified therein the total cost of said work, the total length thereof upon each side, the length of the front line of each and all of the lots and parcels of ground bordering thereon, the whole amount due appellee, and the several sums due him from the several owners respectively of such lots and parcels of ground, and the proportion of each to the entire cost and to the whole length of said improvement, and recorded such estimate in the proper record of said town, setting out a copy of such estimate.
And appellee further averred that said board of trustees made an order requiring defendant, and each and every owner of each and all such lots or parcels of ground, to pay the several sums so assessed and estimated to them as aforesaid; that more than ten days had elapsed since said order and since demand was made upon defendant, Wiles, for payment, but the defendant had wholly failed and refused to pay the same or any part thereof; that there was then due and owing from said defendant each and all of the several assessments upon the several lots so owned by him, as set out in said estimate, the aggregate sum of $ 1,200, no part of which had been paid. Wherefore, etc.
Appellant's demurrer to appellee's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, was overruled by the court at special term. On his appeal to general term this ruling was assigned by appellant as error, and on his further appeal to this court it is the first error complained of in argument by his learned counsel.
It is conceded by counsel on both sides, as well of appellee as of appellant, that the proceedings for the improvement of Hope street, described in the complaint herein, were commenced and had under and pursuant to the provisions of an act of the General Assembly of this State, entitled "An act to enable incorporated towns to lay out, open, grade, and improve streets and alleys, and make public improvements therein, and to make surveys and adopt plats where the same have been lost or destroyed, and prescribing the duties of the board of trustees, and providing for the mode of working and improving streets and alleys, and declaring an emergency." Approved April 27th, 1869. Acts of 1869, Spec. Sess., p. 33.
This act contains ten (10) sections, but does not contain any repealing clause or section. The ten sections have been brought forward into the Revised Statutes of 1881, and are there known as sections 3364 to 3373, inclusive. In section 3364, which is section 8 of the above entitled act, so far as it is applicable to the case in hand, it is provided as follows: "Whenever a majority of all the resident...
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