Kretsch v. Helm

38 Ind. 207

Opinion

Worden, C. J.

The common council of the city of In dianapolis passed an ordinance for the improvement of an alley in said city, and let the work, by contract, to the appellee, Helm. Helm, having done the work, procured a precept to be issued against the property of the appellant, to collect the amount assessed against the same for the work done. The appellant herein appealed to the court of common pleas from the precept, and in the latter court filed a demurrer to the transcript, which stands for a complaint, for the want of sufficient facts, etc. The motion was overruled and the appellant excepted, and such further proceedings were had in the cause as that final judgment was rendered that the property be sold to pay the assessment.

N, B. Taylor and E, Taylor, for appellant.

Kretsch 'appeals to this court, and assigns for error, amongst other things, the overruling of the demurrer to the complaint. The objection urged against the complaint or transcript is, that it does not show that the common council, before letting the work, advertised to receive proposals therefor, as is required by section 68 of the act for the incorporation of cities. This objection is well founded in fact, and in law h,as been held to be fatal. In the case of McEwen v. Gilker, post, p. 233, it was held, after much consideration, that such objection was fatal, and could be taken by demurrer. To the ruling in that case we adhere. The demurrer should have been sustained.

The judgment below is reversed, with costs.