Gatchell v. West

Tuscarawas Circuit Court

Gatchell v. West

13 Ohio C.C. (n.s.) 495, 1910 Ohio Misc. LEXIS 301

DecidedDecember 9, 1910

StatusPublished

This text of 13 Ohio C.C. (n.s.) 495 (Gatchell v. West) is published on Counsel Stack Legal Research, covering Tuscarawas Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gatchell v. West, 13 Ohio C.C. (n.s.) 495, 1910 Ohio Misc. LEXIS 301 (Ohio Super. Ct. 1910).

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Opinion

By the Court.

This is an action to enjoin the sale of the construction of a partition fence, by the trustees of Mill township, between the lands of Stephen Gatchell and William Elvin, and to restrain the certifying of the cost thereof to the auditor of this county against the lands of Stephen. Gatchell.

The principal contention of counsel for plaintiff is that no notice was given under the application of the aggrieved party to sell to the lowest bidder the construction of the fence.

While it is undoubtedly true that notice must be given to every owner of land in every proceeding seeking to charge his land or property with a special assessment, yet it is also the law that if a notice be given at any time in the course of this proceeding the requirements of the Constitution are satisfied.

Sections 4242 and 4243 of the Revised Statutes (General Code, 5910-11-12-13), contemplate a continual proceeding with reference to the same subject-matter, and, therefore, the notice required in Section 4242 is sufficient for all purposes of the case. The proceedings under Section 4243 are based upon the orders made under the provisions of Section 4242, and after the orders made by authority of the last above named section have been fully complied with that is the end of that whole proceeding, and nothing further can ever be done under the provisions of Section 4243. If after that time there is a failure to maintain or repair the fence the whole proceeding must be gone over again, starting with the application and notices provided in Section 4242. So that these proceedings are in nowise independent of the other, and the application provided for in Section 4243 is but another pleading in the same proceeding and no further notice is required. The petition of plaintiff must be dismissed with costs and cause remanded for execution. Motion for new trial will be overruled and exceptions noted; twenty days for separate finding of fact and law and statutory time for bill of exceptions.

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By the Court.

This is an action to enjoin the sale of the construction of a partition fence, by the trustees of Mill township, between the lands of Stephen Gatchell and William Elvin, and to restrain the certifying of the cost thereof to the auditor of this county against the lands of Stephen. Gatchell.

The principal contention of counsel for plaintiff is that no notice was given under the application of the aggrieved party to sell to the lowest bidder the construction of the fence.

While it is undoubtedly true that notice must be given to every owner of land in every proceeding seeking to charge his land or property with a special assessment, yet it is also the law that if a notice be given at any time in the course of this proceeding the requirements of the Constitution are satisfied.

Sections 4242 and 4243 of the Revised Statutes (General Code, 5910-11-12-13), contemplate a continual proceeding with reference to the same subject-matter, and, therefore, the notice required in Section 4242 is sufficient for all purposes of the case. The proceedings under Section 4243 are based upon the orders made under the provisions of Section 4242, and after the orders made by authority of the last above named section have been fully complied with that is the end of that whole proceeding, and nothing further can ever be done under the provisions of Section 4243. If after that time there is a failure to maintain or repair the fence the whole proceeding must be gone over again, starting with the application and notices provided in Section 4242. So that these proceedings are in nowise independent of the other, and the application provided for in Section 4243 is but another pleading in the same proceeding and no further notice is required. The petition of plaintiff must be dismissed with costs and cause remanded for execution. Motion for new trial will be overruled and exceptions noted; twenty days for separate finding of fact and law and statutory time for bill of exceptions.

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Bluebook (online)

13 Ohio C.C. (n.s.) 495, 1910 Ohio Misc. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatchell-v-west-ohcircttuscaraw-1910.