Willard v. Albertson

• Decision Date: 24 May 1899
• Docket Number: 2,786
• Parties: WILLARD ET AL. v. ALBERTSON ET AL
• Court: Indiana Appellate Court

53 N.E. 1078

23 Ind.App. 166, 54 N.E. 446

WILLARD ET AL. v. ALBERTSON ET AL

No. 2,786

Court of Appeals of Indiana

May 24, 1899

Rehearing denied October 27, 1899.

From the Lawrence Circuit Court.

Affirmed.

J. D. Alexander, J. H. Willard, R. W. McBride and C. S. Denny, for appellants.

T. J. Brooks, W. F. Brooks, B. K. Elliott, W. F. Elliott and F. L. Littleton, for appellees.

OPINION

COMSTOCK, J.

There are questions raised by this appeal not passed upon in Lewis v. Albertson, ante, 147. The first is that the court erred in sustaining the demurrer to the fifth paragraph of answer. This paragraph denies that the city of Bedford was duly incorporated and that therefore the proceedings of the council in question were void. The legality of the incorporation can not be attacked thus collaterally. Mullikin v. City of Bloomington, 72 Ind. 161.

The fifth specification challenges the action of the court in sustaining the demurrer to the amended thirteenth paragraph of answer. This paragraph is an answer to so much of the complaint as demands attorney fees, upon the ground that the provision for attorney fees by the act of March 8, 1899, and acts amendatory and supplemental thereto, are unconstitutional. Appellants admit that the Supreme Court has decided the question against them, but they desire to present it again. It can not be done in this tribunal.

The next error claimed is the sixth, the overruling of the demurrer to the amended second paragraph of reply. The demurrer is not in the record, but we are of the opinion that this paragraph by way of estoppel was sufficient.

As to the action of the court in overruling the motion for a new trial, which is also assigned as error, it is only necessary to say that before the filing of that motion, appellants filed their motion in arrest of judgment. The motion for a new trial therefore came too late. Cincinnati, etc., R. Co. v. Case, 122 Ind. 310, 23 N.E. 797. In the rulings herein referred to, we find no error. As to the other alleged errors, the judgment is affirmed upon the authority of Lewis v. Albertson, supra. Judgment affirmed.

Opinion on 54 N.E. 446

PER CURIAM.--It having been suggested that Mrs. Kate N. Willard, one of the appellants, has died since the submission of this cause, it is ordered that the judgment rendered herein be as of the term when the submission was made.