Arctic Ditchers v. Coon

47 Ind. 201

Opinion

Downey, J.

This was án appeal by the appellee to the •circuit court from an assessment made upon his lands- to aid in the construction of the ditch of said company. In the circuit court, seven or more paragraphs of answer were filed, includingtwoby way of cross complaint, which were stricken out. Demurrers to the paragraphs of the answer were filed. and overruled as to some, and issues were formed by a reply-consisting of several paragraphs. Ultimately the court rendered judgment on demurrer to some of the paragraphs of the pleading. Errors are assigned, calling in question the-regularity of these proceedings.

In Kellogg v. Price, 42 Ind. 360, we expressed the opinion that on such appeals there should be no demurrers to the-transcript, no answers, and no replies. Some of the paragraphs of answer in this case are clearly insufficient. Assuming that an answer could properly be filed, others may set up-sufficient matters to defeat the assessment, but we do not so decide.- The appeal is from the assessment, for the purpose-of controverting its correctness. Some of the answers attack the company, with a view of showing that it has no-legal existence.

The judgment is reversed, with costs; and the cause is remanded, with instructions to set aside all the paragraphs of the answer, and proceed as indicated in Kellogg v. Price, supra.