Larimer v. Krau

103 N.E. 1102, 57 Ind. App. 33, 1914 Ind. App. LEXIS 90

Opinions

Pelt, J.

This suit was begun by appellants to enjoin appellee as treasurer of Elkhart County, Indiana, from collecting certain drainage assessments levied against appel- • lants1 lands in a proceeding before the board of county commissioners of Elkhart County. The court sustained a demurrer to the complaint for insufficiency of the facts alleged to constitute a cause of action against the defendant entitling the plaintiffs to the relief prayed. The plaintiffs refused to plead over, prayed an appeal from, the judgment against them on the demurrer, and have assigned as error the sustaining of the demurrer to the complaint.

It is alleged in substance that plaintiffs George A. and Milton B. Larimer and one William T. B. Larimer, who is not a party to this suit, were and are the owners in fee simple, as tenants in common of certain real estate in Elk-hart County, Indiana, which real estate is particularly described. The complaint then avers in detail the filing of the drainage petition with the auditor of said county and the several steps in the proceedings up to and including the making of the assessment and placing the assessment against appellants’ lands on the tax duplicate for collection. It is then charged that at the time of the filing of said drainage petition and continuously thereafter, George A. Larimer was a nonresident of the State of Indiana and said Milton B. Larimer was a nonresident of said Elkhart County. Also that: “no notice of any kind or character was given to

the plaintiff George A. Larimer, nor to the plaintiff Milton B. Larimer, of the filing of said petition, or of the pendency of said proceeding, or of any of the steps taken or had in said canse; that said proceeding was conducted throughout, and said pretended assessments were made, reported and approved, as aforesaid, without any notice of any kind or character thereof having been given to the plaintiff George A. Larimer, or to the plaintiff Milton B. Larimer; that neither the plaintiff George A. Larimer, nor the plaintiff Milton B. Larimei, had any notice whatsoever of said drainage proceeding, nor of any step or action had or taken therein; and that neither of the plaintiffs in any manner or at any time appeared therein or thereto, nor in any manner whatsoever consented thereto; and that neither of the plaintiffs signed said drainage petition; and that said pretended assessments against said lands, and each and every portion thereof, is and are, separately and collectively, illegal and void.” It is then averred that on September 10, 1908, said board of commissioners placed upon their records in said drainage proceeding the following entry: ‘ ‘ The court hav-

ing taken up this matter and finding the petition regular in form, and the bond being sufficient, and notice having been served on all landowners affected who are not joined in said petition, the court now orders the petition docketed. ’ ’ It is also averred that as to plaintiffs “said recital in said record is wholly false and untrue in every respect; that in truth and in fact no notice of any kind or character was served on these plaintiffs or on any of them.” The complaint contains the formal averments as to the proceedings to collect the assessments and alleges “irreparable loss” unless a restraining order is issued enjoining the defendant from proceeding to collect said assessments.

Appellants concede that the board of commissioners had jurisdiction of the subject-matter of the proceeding but contend that it did not acquire jurisdiction over the persons of appellants, because there was no notice to them as required by the statute in such proceedings, and that for want of such notice the proceeding is void.

1. This suit is a collateral attack on the record of the hoard of commissioners in the drainage proceeding, and the complaint to be sufficient, must show that the action of the board in levying the assessment against appellants’ land is void. Smith v. Pyle (1909), 44 Ind. App. 150, 152, 88 N. E. 733; Featherston v. Small (1881), 77 Ind. 143; Johnson v. Ramsay (1883), 91 Ind. 189, 195. The complaint shows that on a petition, the sufficiency of which is not questioned, the board of commissioners took the several steps required by the statute, and after assuming jurisdiction, established the ditch and, except for want of notice, duly levied the assessments, the collection of which is sought to be enjoined. Notwithstanding the averments denying notice, the complaint sets out a portion of the record of the board of commissioners in said drainage proceedings, which shows affirmatively that the board found that the petition was regular in form and that all landowners, other than the petitioners, who were affected by the proceedings, had been duly served with notice of the proceedings; that after determining such jurisdictional facts, the board ordered said petition docketed.

2. 3. It is contended that no presumption is indulged in favor of the jurisdiction of a court of inferior jurisdiction, and that the jurisdiction of such courts may always be inquired into collaterally even in contradiction of the record made by such court. The board of county commissioners, when acting in a judicial capacity, is a court of inferior jurisdiction and may exercise such power only as is conferred by the statute. Ricketts v. Spraker (1881), 77 Ind. 371; Brooks v. Morgan (1905), 36 Ind. App. 672, 677, 76 N. E. 331; Helms v. Bell (1900), 155 Ind. 502, 504, 58 N. E. 707. The proposition that jurisdiction is presumed in favor of a court of general jurisdiction, and that nothing is presumed in favor of a court of inferior or limited jurisdiction except that which affirmatively, or by necessary implication, appears from its record, seems to be firmly established in. this State. An examination of the numerous decisions shows considerable discrepancy of expression and some difference of opinion as to the conditions under which the want of jurisdiction of an inferior court may be shown by proof de hors the record. This want of uniformity may be accounted for in part by the apparent failure to always observe the distinction between a direct and collateral attack, and failure to distinguish the cases where the record shows that the court passed upon the jurisdictional facts and held them to be sufficient to give jurisdiction, from those cases where an inferior court has exercised jurisdiction, but the record does not show affirmatively, or by necessary implication, that the court considered and passed upon the jurisdictional facts before proceeding to exercise its jurisdiction. In Peters v. Koepke (1901), 156 Ind. 35, 38, 59 N. E. 33, the Supreme Court said: “According to the later, and, as we think, the more correct decisions in this State, the records even of a court of inferior and limited jurisdiction, where it is affirmatively shown, upon their face, that the court had jurisdiction of the subject-matter of the action, and of the person of the defendant, are entitled to the same respect and are equally invulnerable to collateral attack as those of courts of general jurisdiction.” In Stoddard v. Johnson (1881), 75 Ind. 20, 30, the Supreme Court said: “These authorities show further, that when an inferior tribunal is required to ascertain and decide upon the facts essential to its jurisdiction, its determination thereon is conclusive as against collateral attack.” Further on in the same case it is said: “In most of these cases, the questions were raised on appeal, and involved no collateral attack. In so far as many of these cases hold that the jurisdiction of an inferior court must be shown in its own record, they accord with our present ruling and with the cases cited supra. Some of them perhaps contain dicta against the indulgence of presumptions in favor of the proceedings of inferior courts, after juris diction has been acquired, and to the effect that their proceedings are void unless in strict compliance with the law. If so, they are not in harmony with the cases cited and in such respects are overruled.”

In Weir v. State, ex rel. (1884), 96 Ind. 311, the court had under consideration questions involving the record of the board of county commissioners of Monroe County, and m holding that the recitals of the record could not be contradicted by parol evidence, said: “The court refused to permit the appellant to show that the commissioners did not hold a session on the first day of January, 1883. In this there was no error. The record introduced in evidence, recited that the board did meet and did hold an election on that day which resulted in the choice of the relator, and this record concluded the parties from attacking it in this collateral proceeding. A record can not be overthrown in a collateral attack of this nature.”

In Baltimore, etc., R. Co. v. Freeze (1907), 169 Ind. 370, 374, 82 N. E. 761, the Supreme Court in considering a question relating to a justice of the peace said: “Every court possesses the power of determining its own jurisdiction, both as to the parties and the subject-matter of the action. It is well settled that, when an inferior tribunal is required to ascertain and decide upon facts essential to its jurisdiction, its judgment thereon is conclusive against collateral attack, unless the want of jurisdiction is apparent on the face of the proceedings. A decision on a jurisdictional question, either expressly or impliedly given by a tribunal, has the same binding effect upon the parties as a decision on any other matter within its cognizance in any pending case or proceeding, and an error in this respect must be corrected in the same manner as other errors are authorized to be corrected. ’ ’

4. 5. The drainage statute expressly confers jurisdiction on the board of commissioners to establish a drain and levy assessments to pay the cost of the improvement, when a peti tion as therein designated has been filed and the notice provided has been given. It also provides that if it shall appear to the board that notice has not been given as therein provided, the proceedings shall be continued until such notice has been given, and authorizes the board to proceed only after notice has been given as therein provided. §§6141, 6142,' 6151 Burns 1914, Acts 1907 p. 508. The determination that notice has, or has not, been given under this statute is jurisdictional, and when the record shows that the court passed upon the jurisdictional facts and proceeded to exercise jurisdiction in the pending proceeding, its decision upon such questions is conclusive against a collateral attack and can not be controverted by parol testimony. If the record of such inferior court fails to show the jurisdictional facts, or if such facts do not appear by necessary implication from the record, the judgment may be attacked collaterally. McMullen v. State, ex rel. (1886), 105 Ind. 334, 4 N. E. 903; Board, etc. v. Hall (1880), 70 Ind. 469, 473; Muncey v. Joest (1881), 74 Ind. 409, 412; Brooks v. Morgan, supra; Ricketts v. Spraker, supra; Board, etc. v. Markle (1874), 46 Ind. 96, 111; Vizzard v. Taylor (1884), 97 Ind. 90, 94; Hiatt v. Town of Darlington (1899), 152 Ind. 570, 575, 53 N. E. 825; Gold v. Pittsburgh, etc., R. Co. (1899), 153 Ind. 232, 246, 54 N. E. 802; Hibben v. Smith (1902), 158 Ind. 206, 209, 62 N. E. 447; City of Delphi v. Startzman (1885), 104 Ind. 343, 346, 3 N. E. 937; Shirley v. Grove (1912), 51 Ind. App. 17, 98 N. E. 874.

6. Where the record of an inferior court shows that the court passed upon the jurisdictional facts and does not disclose any fact or facts which conclusively show that the court did not have jurisdiction, the same presumptions are indulged in favor of the regularity of the proceedings of such court as are indulged in favor of the action of a court of general jurisdiction. Brooks v. Morgan, supra, 678; Board, etc. v. Markle, supra; Stoddard v. John son, supra; Featherston v. Small, supra; Rassier v. Grimmer (1892), 130 Ind. 219, 221, 28 N. E. 866, 29 N. E. 918; First Nat. Bank v. Hanna (1895), 12 Ind. App. 240, 243, 39 N. E. 1054.

7. In view of the foregoing authorities we hold that the recital in the record of the proceedings shows that the hoard passed upon the jurisdictional question of notice and held that due notice had been given. There is nothing in the record which shows that the board did not have jurisdiction of the persons of appellants and the statute clearly confers jurisdiction of the subject-matter of the proceeding. As against this collateral attack the record is conclusive, and the complaint was correctly held insufficient to entitle the appellants to the relief prayed. Judgment affirmed.