Daly v. Higman

Indiana Court of Appeals

Daly v. Higman

87 N.E. 669, 43 Ind. App. 357, 1909 Ind. App. LEXIS 50

CourtIndiana Court of Appeals

DecidedMarch 9, 1909

DocketNo. 6,376

StatusPublished

Cited by1 cases

This text of 87 N.E. 669 (Daly v. Higman) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daly v. Higman, 87 N.E. 669, 43 Ind. App. 357, 1909 Ind. App. LEXIS 50 (Ind. Ct. App. 1909).

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Opinion

Hadley, J.

This is a suit by appellee against appellants to foreclose an assessment lien upon lots belonging to appellants in the town of Normal City, Indiana. Trial was had, a special finding made by the court, and conclusions of law stated thereon. All the questions, except one hereinafter stated, relating to the pleadings, are the same as those presented in the case of Daly v. Gubbins (1908), 170 Ind. 105, and upon the authority of that case they are decided against the appellant.

1. The one question referred to is that the complaint shows that the proceedings were instituted by petition, but it does not show that this petition was signed by the requisite number of qualified freeholders. It does show, however, that two-thirds of the board of trustees voted [358]*358to establish the improvement. This is sufficient without any petition. In McEneney v. Town of Sullivan (1890), 125 Ind. 407, this precise question was detei'mined.

2. Appellants also contend that the special findings show that the final notice was insufficient and therefore the conclusions of law thereon were wrong. The special findixxgs show that some notice was given, although it xnay not have been in strict compliance with the statute, but the board of trustees found it sufficient. This proceeding is a collateral attack on this adjudication. Our decisions have declared that under such circumstance such an attack will xiot be. sustained. Brown v. Central Bermudez Co. (1904), 162 Ind. 452; Martindale v. Town of Rochester (1908), 171 Ind. 250; DePuy v. City of Wabash (1893), 133 Ind. 336; Barber Asphalt Pav. Co. v. Edgerton (1890), 125 Ind. 455. In the ease last cited the court said: “Accordingly it has repeatedly been held by this court that where the statute required tlxe filing of a petition as a coxxditioxx precedent to the exercise of jurisdiction, or the giving of some particular xiotice, if a petitioxx was filed, though defective, or some notice was given, though not a compliaxxce with the statutory requirement, the proceeding is not void, axxd will be sufficient to withstand a collateral attack.”

No reversible error being shown the judgment is affirmed.

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Hadley, J.

This is a suit by appellee against appellants to foreclose an assessment lien upon lots belonging to appellants in the town of Normal City, Indiana. Trial was had, a special finding made by the court, and conclusions of law stated thereon. All the questions, except one hereinafter stated, relating to the pleadings, are the same as those presented in the case of Daly v. Gubbins (1908), 170 Ind. 105, and upon the authority of that case they are decided against the appellant.

1. The one question referred to is that the complaint shows that the proceedings were instituted by petition, but it does not show that this petition was signed by the requisite number of qualified freeholders. It does show, however, that two-thirds of the board of trustees voted [358]*358to establish the improvement. This is sufficient without any petition. In McEneney v. Town of Sullivan (1890), 125 Ind. 407, this precise question was detei'mined.

2. Appellants also contend that the special findings show that the final notice was insufficient and therefore the conclusions of law thereon were wrong. The special findixxgs show that some notice was given, although it xnay not have been in strict compliance with the statute, but the board of trustees found it sufficient. This proceeding is a collateral attack on this adjudication. Our decisions have declared that under such circumstance such an attack will xiot be. sustained. Brown v. Central Bermudez Co. (1904), 162 Ind. 452; Martindale v. Town of Rochester (1908), 171 Ind. 250; DePuy v. City of Wabash (1893), 133 Ind. 336; Barber Asphalt Pav. Co. v. Edgerton (1890), 125 Ind. 455. In the ease last cited the court said: “Accordingly it has repeatedly been held by this court that where the statute required tlxe filing of a petition as a coxxditioxx precedent to the exercise of jurisdiction, or the giving of some particular xiotice, if a petitioxx was filed, though defective, or some notice was given, though not a compliaxxce with the statutory requirement, the proceeding is not void, axxd will be sufficient to withstand a collateral attack.”

No reversible error being shown the judgment is affirmed.

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Bluebook (online)

87 N.E. 669, 43 Ind. App. 357, 1909 Ind. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daly-v-higman-indctapp-1909.

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