Alkire v. Timmons Ditching Co.

51 Ind. 71

• Court: Indiana Supreme Court
• Decided: November 15, 1875
• Status: Published

Opinion

Downey, J.

This was an action by the appellee against the appellant, to recover the amount of an assessment' agains^ the land of the appellant for the construction of the ditch of the appellee. A demurrer to the complaint was filed and overruled. Issues were formed, and these were tried by the court; finding for the plaintiff. Motion for a new trial overruled, and judgment for the amount of the finding.

An error assigned is, that the court improperly overruled the demurrer to the complaint.

One of the objections to the complaint is, that a copy of the assessment on which the action is founded is not made part of the complaint. This error is confessed by the appellee, in view of the case of West v. The Bullskin, etc., Co., 19 Ind. 458. But the counsel request that we examine other questions in the case, relating to the sufficiency of the complaint, etc. We think, however, that, as these objections; may, probably, be removed by an amendment of the complaint, we need not do this.

The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the complaint, and, if asked, grant leave to amend the complaint.