Laakmann v. Pritchard

66 N.E. 153, 160 Ind. 24, 1903 Ind. LEXIS 38

Opinion

Gillett, J.

Appellants filed a complaint in two para- . graphs, asserting and seeking to foreclose a lien for the construction of a cement sidewalk opposite the real estate of appellee. The proceedings were had under the act of March 8, 1889 (Acts'1889, p. 237). A demurrer was sustained to each paragraph of said complaint, final judgment was rendered that appellants take nothing, and on appeal the question is presented as to whether either paragraph of their complaint is sufficient.

We do not find in either paragraph the averment that the city council of the city of Pranklin, under whose authority the improvement was made, has made the assessment provided for by section seven of said act. The common council is constituted a special agent to determine, after the hearing provided for by said section, whether the improvement has been made and completed according to the terms of the contract, and, if so, to levy assessments against abutting property. Robinson v. City of Valparaiso, 136 Ind. 616; Adams v. City of Shelbyville, 154 ; Darnell v. Keller, 18 Ind. App. 103. While we recognize the principle of estoppel in cases that properly call for its application, yet that affords no reason why the contractor should voluntarily abandon the pursuit of the provisions of the statute relative to the fixing óf his lien.

There is no error in the record. Judgment affirmed.