Gatchell v. West

Ohio Circuit Courts

Gatchell v. West

22 Ohio C.C. Dec. 537

DecidedDecember 9, 1910

StatusPublished

This text of 22 Ohio C.C. Dec. 537 (Gatchell v. West) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gatchell v. West, 22 Ohio C.C. Dec. 537 (Ohio Super. Ct. 1910).

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Opinion

PER CURIAM.

This is an action to enjoin the sale of the construction of a partition fence, by the trustees of Mill township, between the [538]*538lands of Stephen Gatehell and William Elvin, and to restrain the certifying of the cost thereof to the auditor of this county against the lands of Stephen Gatehell.

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.

Gen. Code 5910, 5913 (R. S. 4242, 4243) contemplate a continual proceeding with reference to the same subject-matter, and, therefore, the notice required in Gen. Code 4242 is sufficient for all purposes of the case. The proceedings under Gen. Code 4243 are based upon the orders made under the provisions of Gen. Code 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 Gen. Code 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 Gen. Code 4242. So that these proceedings are in nowise independent of the other, and the application provided for in Gen. Code 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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PER CURIAM.

This is an action to enjoin the sale of the construction of a partition fence, by the trustees of Mill township, between the [538]*538lands of Stephen Gatehell and William Elvin, and to restrain the certifying of the cost thereof to the auditor of this county against the lands of Stephen Gatehell.

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.

Gen. Code 5910, 5913 (R. S. 4242, 4243) contemplate a continual proceeding with reference to the same subject-matter, and, therefore, the notice required in Gen. Code 4242 is sufficient for all purposes of the case. The proceedings under Gen. Code 4243 are based upon the orders made under the provisions of Gen. Code 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 Gen. Code 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 Gen. Code 4242. So that these proceedings are in nowise independent of the other, and the application provided for in Gen. Code 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)

22 Ohio C.C. Dec. 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatchell-v-west-ohiocirct-1910.