Stafford v. State ex rel. Rhine

40 N.E. 701, 12 Ind. App. 540, 1895 Ind. App. LEXIS 143

Opinion

Gavin, J. —

Action by the commissioner to collect drainage assessments.

An answer was properly held bad on demurrer, wherein it was averred that, by the terms of the contract, nothing was to be paid to the contractor until the ditch was completed according to the plans and specifications; that a large portion of the work had been done with the commissioner’s consent, in a manner widely divergent from the plans and specifications, and that the contractor did not intend to, and would not, complete the same in accordance with the terms of his contract.

Filed May 14, 1895.

The remedy for such derelictions of duty upon the part of the commissioner and contractor is to be obtained by proceeding directly against them in the circuit court. Indianapolis, etc., Gravel Road Co. v. State, ex rel., 105 Ind. 37; Racer v. State, for Use, 131 Ind. 393; Racer v. Wingate, 138 Ind. 114; Wilson v. State, ex rel., 9 Ind. App. 696.

Judgment affirmed.