Kretsch v. Helm

45 Ind. 438

• Court: Indiana Supreme Court
• Decided: May 15, 1874
• Status: Published

Opinion

Pettit, J.

This case has been here before. 38 Ind. 207.. It is an appeal from a precept in favor of Helm against the-property of Kretsch for street improvement, and when here before it was reversed, because the transcript of the councill proceedings did not show that bids for the work had been advertised before letting the contract. The'case went back, and the transcript which stands as and for a complaint, was amended so as to show that an advertisement for bids was-twice published in the Indianapolis Journal before letting-the contract. An answer was filed to the complaint, and a demurrer for want of sufficient facts was sustained to it,. exception taken, and judgment for the plaintiff, the defendant having refused to answer further. The view we have taken of the case renders it unnecessary to set out the answer or- to say whether it was good or bad, for a bad answer is good enough for a bad complaint, and a demurrer to the former reaches back to the latter.

The ordinance, under which the improvement was made, provides, that “the city clerk is hereby directed to advertise by publication, one day each week for two successive weeks in the Indianapolis Daily Journal, and by posting up'printed notices in not less than five of the most public places in the city, that .sealed proposals will be received by the common council, at its meeting to be held on the 14th day of September, 1868, for the execution of said work.” The advertisement was made in the Journal, as required, but was not made by posting up notices in five public places in the city. This case may be likened to one where a sheriff is required by law to give notice by a publication in a newspaper, and by posting up notices. The doing of one will not excuse not doing the other and render the acts of the sheriff valid. The common council having provided what and how advertisement should be made, all parties interseted are bound by it, and the complaint, to be good, must show that the advertisement was made accordingly. We hold that the demurrer to the answer should have been sustained to the complaint.

The judgment of the court below is reversed, at the costs of the appellee, with instructions to the court below to sustain the demurrer to the answer to the complaint.