Hicks v. Zion

58 Ind. 548

• Court: Indiana Supreme Court
• Decided: November 15, 1877
• Status: Published

Opinions

Perkins, J.

The plaintiff filed his complaint, as follows:

“ Preston Hicks, the plaintiff above named, complains of the above named defendants, and for cause of action alleges, that, oh the 16th day of December, A. D. 1873, the said defendants made and executed their certain instrument in writing, a copy of which is filed herewith and made a part hereof, marked ‘ Exhibit A/ by which the said defendants, in consideration of the dismissal of certain legal proceedings therein mentioned, then pending, and the payment by this plaintiff and others of certain sums of money assessed and levied as a special tax upon the property of this plaintiff and other persons named with plaintiff in the said instrument in writing, agreed and promised to pay back to this plaintiff, and to such of the other persons named with plaintiff in said instrument in writing, severally, the sum or sums of money this plaintiff and each of the said other persons might be compelled to pay, or might pay, by reason of said special tax, in case the railroad known as the Anderson, Lebanon and St. Louis Railroad should not be completed, and the cars running on the same to the town of Ladoga, in Montgomery county, Indiana, by the 31st day of December, A. D. 1875; and plaintiff avers, that, in consideration of the execution of said instrument in writing by said defendants, and relying on the faithful performance, by said defendants, of the agreements therein contained, this plaintiff, as one of the parties to the said legal proceedings, and all the other parties interested with him in said legal proceedings, had consented to the dismissal thereof, and that the said legal proceedings, in said instrument in writing mentioned, were thereupon dismissed; that the plaintiff, and all the other persons interested with him in said instrument in writing, relying, as aforesaid, on the faithful performance by the said defendants of their said agreement, have paid into the county treasury of Montgomery county, Indiana, the several sums of money assessed against them by reason of said special tax; and the plaintiff avers, that his proportion of said special tax amounted to the sum of ninety-nine dollars, which said sum of money he, as aforesaid, paid into said county treasury, on the 16th day of April, A. D. 1874; and plaintiff avers, that the said Anderson, Lebanon and St. Louis Railroad was not, on the said 31st day of December, A. D. 1875, completed to said town of Ladoga, in said county, nor were the cars, or any cars, running or being run on the same to the said town at that date, and that said railroad has not since been, and is not now, completed to said town of Ladoga, nor have any cars ever been run thereon to said town; and plaintiff alleges, that said defendants have failed, neglected and refused, and do still fail, neglect and refuse, to refund or pay back to said plaintiff the said sum of ninety-nine T%0T dollars, or any part thereof.

“ Wherefore, by reason of the premises, the said plaintiff says he has been damaged in the sum of two hundred dollars; plaintiff therefore demands judgment for the sum of two hundred dollars, for his costs herein, and for all other proper relief.”

The complaint contained a second paragraph.

A demurrer was sustained to both paragraphs.

A copy of “Exhibit A,” on which the action is founded, is as follows:

“Whereas, on the 30th day of October, 1873, at a special session of the board of commissioners of Montgomery county, Indiana, ordered and directed, that a tax of one per cent., previously levied by an order of said board of commissioners of said county, upon the property of the tax-payers of Clark and Scott townships, in said county of Montgomery, to aid in the construction of the Anderson, Lebanon & St. Louis Railroad through said townships, (one per cent, of which said special tax was then on the tax duplicate of said county, but its collection suspended by an order made February -, 1873,) should be collected at once; and,

“ Whereas Drake Brookshire, on behalf of himself and other tax-payers of said Clark and Scott townships, on the 29th day of November, A. D. 1873, appealed from the order and decision of said board ordering the immediate collection of said special tax; and,

“ Whereas William Zion, D. Kenworthy, M. M. Henry, Thos. H. Messick, M. B. Anderson and J. F. Harney, being officers of said railroad company, -and a part of them also being citizens of said Clark and Scott townships, and owning property therein that would be greatly enhanced in value by the construction of said railroad through said townships, and being greatly interested, pecuniarily and otherwise, in the progress and construction of said road, and the same being likely to be greatly delayed, and probably defeated, by the prosecution of said appeal: Now, in consideration of the interest the undersigned have in the collection of said tax for the purpose aforesaid, and that the said Drake Brookshire will dismiss his said appeal, and thereby permit, and the said Drake Brookshire and Isaac Carman, D. W. Rouk, Perry Yelton, Madison Sharpe, Thomas Rose, John Graves, James Rouk, Thomas Peffley, Nat. Hulett, Preston Hicks, T. B. Stephens, James Mamurs, William Utterback, G. W. Staton, Henry Rogers, H. C. Rogers, James C. Rogers, G. S. Davidson, J. R. Davidson, Wm. Britton, Thomas Staton, Haney Miller, Jos. Staton, W. H. Rogers, Wm. Mclver, James Mclver, Jerry O’Connor, Samuel Wyatt, J. W. Davidson, Ben. T. Clark, Wm. Ewing, Wesley Cunningham, James Ford, David Gordon, William Barnard, Wm. McCameron, H. M. Davis, Dudley Young, George Morris, Henry Otterman, Martha Winter, Jackson Weekley, John Sharp, Morgan Dent, Jas. Carman, Orgus Davis, S. G. Cook, J. L."1 White, Jos. Robbins, Perry Sharp, Robert Standford, F. M. Otterman, T. R. Rouk, Samuel Rouk, George Mitcheltree, Wm. P. Rouk, S. F. Peffley, Thomas A. Rains, Alfred Rose, Charles Lewis, Linsey Rogers, Huston McCrory, John McCrory, James McCrory, Wm. A. Brown, Oliver Clark, James Clark, M. W. Doherty, Wm. Dean, Joel C. Harshbarger, James H. Starke, Wesley Grantham, I. M. Porch, James Doherty, Samuel Stover, Abram Byrd, Lafayette Young, H. C. Barnes, Agnes Graves, Sarah Rains, and Jesse Rains, will pay the said special tax so ordered to be collected by said board, for the purpose aforesaid; we agree and promise to refund and pay back, to the said Drake Brookshire and the other persons above named, on or before the 31st day of December, 1875, severally, the taxes they may severally pay for said purpose, into the county treasury; Provided, and this agreement is upon the express condition, that said railroad shall not be completed and the cars running on the same, to the town of Ladoga, in said Clark township, by the 31st day of December, 1875; and they further agree to pay all expenses incurred by said Drake Brookshire, in and about his said appeal.

“Witness our hands, this 16th day of December, 1873.

“Wm. Zion.

“ D. Kenworthy.

“ M. M. Henry.

“ Thos. H. Messick.

“ M. B. Anderson.

“ J. F. Harney.”

The sustaining of the demurrer to the complaint is assigned for error, in this court. The court did not err in sustaining the demurrer to the complaint. It contained no cause of action. The bond required the payment, by the plaintiff and others named, of the entire amount of the special tax named. It is not averred, that this requirement had been complied with. Both paragraphs of complaint were bad.

The judgment is affirmed.