Carr v. State ex rel. Cottingham

3 N.E. 375, 103 Ind. 548, 1885 Ind. LEXIS 563

• Court: Indiana Supreme Court
• Decided: November 20, 1885
• Docket: No. 12,289
• Status: Published

Opinion

Elliott, J.

This action was brought by the appellee to enforce an assessment for the construction of a ditch, levied under the act of April 8th, 1881.

The first objection to the validity of the assessment is that the notice of the filing of the petition was not sufficient.

The special finding states that proof of notice was made by affidavit showing that notices were posted. It was sufficient to give notice by posting as the statute provides. Meranda v. Spurlin, 100 Ind. 380. It is competent for the Legislature to provide what kind of notice shall be given, and where the notice is of the character prescribed by statute, it is sufficient. Hobbs v. Board, etc., post, p. 575, and authorities cited.

Where the court acts upon a notice, it is not necessary to make a formal entry declaring it to be such as the law requires. The action of the court is sufficient without any formal order approving the notice. Platter v. Board, etc., ante, p. 360, and authorities cited; Cauldwell v. Curry, 93 Ind. 363; Board, etc., v. Hall, 70 Ind. 469.

A failure to note on the petition the day for docketing the same is a mere irregularity, and if not objected to within three days after the petition is docketed, the objection is deemed waived. Smith v. Smith, 97 Ind. 273.

Filed Nov. 20, 1885.

The land was described in the petition, and the name of the owner was thus given: “ The estate of Thomas Carr and Clarka Carr, of which Joseph Booth is executor.”

It has often been held by this court, and by other courts, that such a naming of the owner is sufficient in cases of assessment for taxes, and we see no reason why the same rule should not apply here. Noble v. City of Indianapolis, 16 Ind. 506; Sloan v. Sewell, 81 Ind. 180; Jenkins v. Rice, 84 Ind. 342; Wheeler v. Anthony, 10 Wend. 346; State v. Collector, etc., 4 Zabriskie, N. J. 108. We affirm this because the amendatory act of 1883 provides that “ Such petition shall be sufficient to give the courts jurisdiction over the lands described therein,, and power to fix a lien thereon if they are described as belonging to the person who appears to be the owner according to the last tax duplicate or record of transfer.” Acts 1883, p. 174. There is a difference between the name of the owner of the land as given on the tax duplicate and as given in the petition, but it is not of such a material character as to avoid the proceedings. We think it sufficient to serve the notice of the assessment on the person who is described in the petition and is named on the tax duplicate as the owner. This is the principle declared in Jenkins v. Rice, supra, and it is a sound one. If it appeared that the appellant had been misled or injured by the failure to serve notice on her, or if it appeared that she was known to be the owner, it may be that the courts would grant her relief, but where no such facts appear, the service of the notice on the persons named in the petition is sufficient. Here it appears that the appellant had an opportunity to defend. Naming her in the petition would have secured her no greater rights, and therefore no injury was done her.

Judgment affirmed.