Young v. Wells

• Decision Date: 25 September 1884
• Docket Number: 11,276
• Citation: 97 Ind. 410
• Parties: Young, Trustee, v. Wells, Commissioner of Drainage
• Court: Indiana Supreme Court

97 Ind. 410

Young, Trustee, v. Wells, Commissioner of Drainage

No. 11,276

Supreme Court of Indiana

September 25, 1884

From the Hamilton Circuit Court.

The judgment is reversed, with costs, with directions to the court below to overrule the demurrer to the complaint.

G. H Gifford and R. B. Beauchamp, for appellant.

J. M Fippen, for appellee.

OPINION

Zollars J.

In 1882 one Oliver Endicutt filed a petition in the Hamilton Circuit Court for the location and construction of a ditch, partly in Hamilton and partly in Tipton counties. Such proceedings were thereafter had upon the petition that the commissioners of drainage in Hamilton county made and filed their assessment of benefits, in which they assessed against Cicero township in Tipton county, $ 350, on account of benefits to three designated highways in that township. The assessment was approved by the court, the proposed ditch was established, and appellee, as one of the commissioners of drainage in Hamilton county, was directed to construct the ditch. He made out the proper notice, and had it and a copy of the assessment recorded in the recorder's office of Tipton county. To enjoin the collection of this assessment, appellant, as the trustee of the township, instituted this action.

A demurrer was sustained to the complaint. This ruling is assigned as error in this court. The proceedings were all had under sections 4273 to 4284, R. S. 1881, both inclusive. These must govern in the decision of the case, without reference to the amendments of 1883. If the assessment was otherwise valid, it was properly made against the township. Section 4281. It is conceded that this is a collateral attack upon the proceedings of the Hamilton Circuit Court, but it is contended that, as against the township, the proceedings are void for want of notice.

It is averred in the complaint, among other things, that before referring the matter to the commissioners of drainage, the court found that notices of the petitioner's intention to present the petition had been properly posted along the line of the ditch, and one at the door of the court-house in Hamilton county, and did not find that such notice had been posted at the door of the court-house in Tipton county.

This is a statement as to what the court found, but it is not a statement as to what the record of those proceedings shows. For aught that appears from this averment, the record may show that the court found that notices had been posted at the doors of the court-house in each of the counties, or it may be silent upon the subject. In either event, appellant could not be heard to contest the validity of the notice in this collateral assault upon the proceedings, by averring that it was not posted at the door of the court-house in Tipton county.

It is conceded that notice was given. Whether or not that notice was sufficient, by a proper posting, was a jurisdictional question, to be decided by the court before referring the matter to the commissioners of drainage, or taking further action. Where a decision is made in such a case, it is conclusive as against a collateral attack. The fact that the court assumed to exercise jurisdiction, and referred the matter to the commissioners, is proof of record that it determined that the notices had been properly posted, as required by section 4275, R. S. 1881. It was not necessary that the record should show by a specific statement that the notice had been posted at the doors of the court-house in each county. Where a court of general jurisdiction exercises jurisdiction, it will be presumed that it rightfully does so, and the judgment will be invulnerable as against a collateral attack, unless the record affirmatively show that the judgment is void. Smith v. Hess, 91 Ind. 424; Houk v. Barthold, 73 Ind. 21; Iles v. Watson, 76 Ind. 359; Stoddard v. Johnson, 75 Ind. 20; Board, etc., v. Markle, 46 Ind. 96. See, also, Muncey v. Joest, 74 Ind. 409; Hume v. Little Flat Rock Draining Ass'n, 72 Ind. 499; Mullikin v. City of Bloomington, 72 Ind. 161; Board, etc., v. Hall, 70 Ind. 469; Ricketts v. Spraker, 77 Ind. 371; Miller v. Porter, 71 Ind. 521.

So far, then, as concerns the posting of the notices, the record is conclusive against the appellant in this collateral assault upon it. It should be observed, too, that there is no averment in the complaint that a notice was not in fact posted at the court-house door in Tipton county.

There is, however, a more serious question. It is further averred in the complaint, that the notice and assessment, filed and recorded in the recorder's office in Tipton county, is the only notice or assessment that in any way mentions, describes, or refers to the township, or to the highways, or either of them; that neither the petition by Endicutt, nor the notices, nor affidavits made in proof of notice, nor any of the copies of the notices filed with the affidavits, nor the order of the court referring the matter to the commissioners of drainage, nor any of the records, entries, minutes, or orders made in the cause by the court, contain any mention, or describe in any manner whatever, any of the highways, nor contain any mention or reference to the township of Cicero, nor in any manner show that any notice whatever was given to any one through whom the township might have notice that the highways would be, or were likely to be, in any way affected by the proposed ditch, and that neither the township nor any of its officers had any notice of the proceedings until the notice and assessment were recorded in Tipton county.

The petition, at least, is a part of the record of the proceedings, in the Hamilton Circuit Court. What is averred of it may properly be said to be averred of the record.

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