Wilson v. Poole

33 Ind. 443

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinions

Frazer, J.

This case presents a number of questions of practice.

1. An answer in abatement was stricken out after the jury was sworn, because it was not verified by affidavit. Was this error?

The appellant relies on Bradley v. The Bank, 20 Ind. 528. That case only decides that after a trial it is too late to object that the answer was not verified. We are not aware of any reported case involving the precise point before us, and the industry of counsel has not discovered any. It may happen in the hurry of business in the lower courts (though it should not), that the verification is forgotten by the pleader, and its absence overlooked by his antagonist. The law has no inclination to favor dilatory pleadings, for they do not go to the merits of the ease. But it would be trifling to allow a party to speculate upon the result of a verdict, and, after it is found against him, interpose the objection that the answer was not verified. But when no step has-been taken beyond swearing the jury, no great inconvenience can result, nor any injury to the opposite party, by allowing the objection to be made. He can at once interpose an application for leave to add the verification, and thus protect himself and save his answer. We are, however, of opinion that the better practice would be to refuse to hear the objection after the jury has been sworn; but inasmuch as the error, if any, was harmless, it is not available in this court.

2. After the answer in abatement had been stricken out, as above stated, the appellant asked leave to supply the verification, but was refused; and this is complained of. He was too late in this application, after the pleading had been stricken from the record. It was then out, and could not be brought back by an affidavit.

3. It is urged that there was error in not reswearing the jury after this pleading was stricken out. There is nothing in this. No single issue had been changed, and no new one had been formed. One issue, existing when the jury was sworn well and truly to try all the issues, had been stricken out, but the oath which had been taken embraced each of those which remained. The point is without even the slightest technical reason to support it.

4. The witness Hanna was allowed to testify, over the appellant’s objection, as to what was meant by his bid in writing. This was error; but it was harmless, for the reason that the writing itself very plainly meant just what the witness swore that he intended by it,'and was not, under the law, susceptible of any other construction, as we think. See 3 Stats. (Davis), 99 sec. 69.

5. The appellee was allowed to state as a witness the price which he had actually paid for the lot. This was error; for the appellant had not introduced any evidence whatever which tended to raise any question upon the subject. The tendency of this item of evidence would be to elicit the sympathies of the jury in behalf of the appellee; and so, unless it affirmatively appears that a right result was, beyond question, reached by the verdict, this will reverse the judgment.

6. The precept upon which the lot was sold for the unpaid assessment was issued upon an affidavit of the contractor stating that the work was done according to contract, and that, under the estimate made by the city engineer, eighty-three dollars and eighty-four cents was assessed against this lot, and the owner, for the space of twenty days after the date of the estimate, had failed and refused, and still refused, to pay the same, except the sum of sixty dollars, which he had paid. The bid of the contractor for grading the street was one dollar per foot, and at that price it was contracted, and the work done. This would of course impose an assessment of only fifty cents per front foot upon the property upon each side of the street. The front of this lot was only eighty-two and one-half feet, and the sum for which it was liable could only be forty-one dollars and twenty-five cents, all of which, and nearly twenty dollars more, had been paid when the precept issued, as appeared by the affidavit. All this information was before the council when the precept was ordered, and by law they and the contractor as well must be held, to have known that nothing remained unpaid against this lot. The affidavit of the contractor carefully-avoided endorsing the estimate of the engineer as having been “ duly made,” that is, correctly made upon the basis of the contract, as the law requires. See 3 Stats. (Davis), 102. "Without such an affidavit as the statute directs, the council had no jurisdiction to issue the precept. It issues without notice to the owner of the property, and the rule in like cases is, that there must be a strict compliance with the statute in order to bind the property. The doctrine applicable to sales for taxes must govern in cases of this kind. But it is argued that an appeal from the precept is provided for by statute, and that having failed to appeal, the owner of the property is forever prohibited from making any question as to the authority to issue the precept. This argument would possess greater force in a case where the precept had been issued under such circumstances as the law requires to exist in order to warrant its issue. The case, however, is one in which, under the circumstances, it issued without any authority whatever. It was therefore not voidable merely, but void, and no appeal was necessary to get rid of it. ■ Being void, it had no more virtue or force than the blank paper upon which it was written; and the treasurer could not, -under it, pass title by a sale of the property. Causes concerning the validity of tax titles under laws requiring the previous judgment of a court, of which the reports are full (we cite only Thatcher v. Powell, 6 Wheat. 119), maintain this proposition so uniformly, that it can hardly be deemed open for argument anywhere. It matters not that the lot-owner may interpose by appeal to arrest the proceedings. It is only by virtue of the statute and by a strict compliance with all its material requirements that the officers of the city could have any power to alienate the property. This of itself shows that the result reached was unquestionably right.

Affirmed, with costs.