State ex rel. Bringham v. Turvey

99 Ind. 599, 1885 Ind. LEXIS 151

• Court: Indiana Supreme Court
• Decided: January 23, 1885
• Docket: No. 11,707
• Status: Published

Opinion

Black, C. —

The court below sustained a demurrer to the complaint in a suit brought to collect an assessment for a drain. The proceeding for drainage was in the White Circuit Court, the lands affected being in White and Benton counties, that of the petitioner for drainage being in White county. Said proceeding was had, and the assessment sued on was made, under the act of April 8th, 1881, E. S. 1881, section 4273, et seq.

Counsel for the appellant are correct in insisting that the White Circuit Court had jurisdiction of all the lands to be affected, though some of them were situated in Benton county, and that the commissioner charged with the construction of the drain had authority to make, his assessments against said lands in both counties. This court has so construed the statute. Shaw v. State, etc., 97 Ind. 23; Crist v. State, ex rel., 97 Ind. 389.

But we observe a fatal defect in,the complaint. The assessment made by the commissioner charged with the execution of the work, or a copy thereof, was not filed with the complaint, or made a part thereof, as was necessary, this assessment constituting the lien, to enforce which was the object of the suit. See the cases above cited; also, Roberts v. State, ex rel., 97 Ind. 399; Neiman v. State, ex rel., 98 Ind. 58.

The judgment should be affirmed.

Filed Jan. 23, 1885.

Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment be affirmed, at the costs of the appellant.