Young v. Sellers

• Decision Date: 10 March 1886
• Citation: 5 N.E. 686,106 Ind. 101
• Parties: Young v. Sellers, Auditor, etc.
• Court: Indiana Supreme Court

106 Ind. 101

5 N.E. 686

Young

v.Sellers, Auditor, etc.

Supreme Court of Indiana.

Filed March 10, 1886.

Appeal from Howard circuit court.

M. Garrigus and C. E. Hendry, for appellant.

Blacklidge & Bro. and B. C. H. Moon, for appellee.

Zollars, J.

Under sections 4285 et seq. a drain was established by the board of county commissioners. Shares of work, in proportion to the benefits assessed, were set apart and apportioned to appellant's lands. Upon a remonstrance by appellant and one Ryal, reviewers were appointed, and made a report. Not satisfied with that report, and the action of the board thereon, the remonstrants appealed to the circuit court. From the judgment of that court, appellant prayed an appeal to the supreme court.

This action was brought by appellant to enjoin the appellee, as the auditor of the county, from selling the shares of work set apart and apportioned to his lands. A demurrer was sustained to the complaint, appellant declined to amend, and judgment was rendered against him for costs. He prosecutes this appeal, and assigns as error the sustaining of the demurrer. In and by his complaint he collaterally assails the proceedings by the county board and the court below, which resulted in the assessment of his lands, and the allotment of the work. Such an assault,of course, cannot be sustained, unless those proceedings and judgment are void upon the face of the record. Smith v. Hess, 91 Ind. 425;Million v. Board, etc., 89 Ind. 5;Anderson v. Wilson, 100 Ind. 402;Exchange Bank v. Ault, 102 Ind. 322; S. C. 1 N. E. Rep. 562; Young v. Wells, 97 Ind. 410;Rogers v. Beauchamp, 102 Ind. 33; S. C. 1 N. E. Rep. 185; Jackson v. Dyer, 3 N. E. Rep. 863; McMullen v. State, 4 N. E. Rep. 903, and cases there cited, (No. 12,869, present term;) Earle v. Earle, 91 Ind. 28. The rule is that where a remedy by appeal is provided, that remedy must be resorted to for the correction of all errors and irregularities. Smith v. Hess, supra. That the county board, and the court below had jurisdiction of the subject-matter and of the parties is not questioned by any averment in the complaint. Indeed, the complaint affirmatively shows the contrary.

The grounds upon which the injunction is asked, as stated in appellant's brief, are five in number. The first is that the amount of work set apart and apportioned to the lands of one Holmes is $33 less than the benefits assessed. The fourth is that the circuit court, on appeal, reduced the amount of work apportioned to the lands of appellant and Ryal, by the viewers, 1,369 cubic feet, but made no order or provision for the doing of the work by others. The fifth is that the amount of work set apart and apportioned to appellant's lands is in bulk, and not a separate amount to each of his three tracts of land. If these alleged errors exist, and if, by any possibility, appellant may be injuriously affected thereby, it is clear that he should have sought a correction of them before the county board and in the...