Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Porter

74 N.E. 260, 38 Ind. App. 226, 1905 Ind. App. LEXIS 291

• Court: Indiana Court of Appeals
• Decided: May 9, 1905
• Docket: No. 5,069
• Status: Published

Opinions

Roby, J.

It appears from the complaint that the appellant is the owner of back-lying real estate within 150 feet of a street, in the city of Lebanon, improved in 1896 under the Barrett law, the purpose of the suit being to- foreclose the lien of the assessment upon said back-lying real estate, the front portion thereof owned by other parties having sold for an amount less than such assessment.

A demurrer for want of facts to each of the two paragraphs of complaint was overruled. An answer of several paragraphs was filed, including a general denial, special findings of fact and conclusions of law were made and stated by the court, and a decree of foreclosure rendered in accordance therewith, from which this appeal is taken.

Since the cause was tried and since the appeal was perfected the case of Voris v. Pittsburg Plate Glass Co. (1904), 163 Ind. 599 — the facts of which are very similar —has been decided, the conclusions announced therein rendering it unnecessary to do more at this time with regard to many of appellant’s contentions than to cite the foregoing case.

1. It was asserted in. appellant’s original brief that the complaint was bad in failing to exhibit a copy of the assessment roll. Return to a writ of certiorari shows the exhibit to have been filed with the amended complaint, a nunc fro tunc entry having been made to that effect by the trial court. Appellant contends that inasmuch as the evidence upon which such entry was made shows that the exhibit was not attached to the pleading, and that no separate entry of the filing of said exhibit with the pleading was made, there was no basis upon which the nunc fro tunc entry could be made. The exhibit is identified by the file mark of the clerk of the Boone Circuit Court and by parol evidence, and there is no evidence to the contrary. Security Co. v. Arbuckle (1890), 128 Ind. 518.

2. While the exhibit was not bodily attached to the pleading it was-referred to therein as follows: “A copy of which corrected and amended estimate report is filed herewith, made a part hereof, and marked exhibit A.” The exhibit thus marked and filed with the complaint became a part thereof without a separate order-book entry.

3. It is also asserted that an election to foreclose the assessment lien upon the property fronting upon the improved street estopped the appellees from a subsequent foreclosure upon back-lying property. The proposition seems to be otherwise held. Voris v. Pittsburg Plate Glass Co., sufra.

Judgment affirmed.