City of Peru v. Kreutzer , 86 Ind. App. 420 ( 1926 )

Appellees state that this case is an appeal from the acts or decision of the common council of the city of Peru, Indiana, acting as a board of public works, in the confirmation of a 1. final assessment roll of benefits for the construction of a certain improvement of West Fifth street in said city, including the installation of curb and gutter, while appellant contends that the case is only an attempted appeal from such action of the common council. Appellant's contention that appellees had not perfected their appeal, and that therefore the Miami Circuit Court did not have jurisdiction, was presented to the trial court by its motion to dismiss the appeal, its plea of abatement, its demurrer to the complaint for want of jurisdiction and its demurrer to the complaint for want of facts. Adverse rulings on appellant's said pleadings are respectively assigned as error. The circuit court assumed jurisdiction, and, after trial, rendered judgment confirming the assessments of the common council as to the street, curb and gutter improvements, but annulling assessments as to sewer improvements. From that judgment, this appeal is taken, appellant presenting only, under its respective assignments of error, that the judgment is wholly void for want of jurisdiction of the court to try and determine the attempted appeal. While it is true that had there been a proper appeal to the circuit court under the statute no appeal could be taken to this court on the merits, for the purpose of determining whether the judgment was void for want of jurisdiction, an appeal lies. Cushman v. Hussey (1918),187 Ind. 228, 118 N.E. 816.

Appellees' motion to dismiss this appeal is overruled.

Appellees contend that their appeal from the common council to the circuit court was under ch. 143, Acts 1919 p. 635, § 2, 3. 10344 Burns 1926, which does not require a verified complaint and bond, and appellees did not file a verified complaint and did not file a bond, while appellant contends that the appeal from the common council must be taken under the provisions of ch. 140, Acts 1919 p. 625, § 8716 Burns' Supp. 1921, which required a verified petition and bond, and appellees having failed to file a verified petition, and to file a bond, no appeal was actually taken, and the Miami Circuit Court did not have jurisdiction. Since this appeal was taken, the Supreme Court, in the case of City of NewAlbany v. Lemon (1925), 198 Ind. 127, 149 N.E. 350, has decided this question against appellees' contention. On the authority of that case, the judgment herein is reversed, with instruction to the circuit court to vacate the same and to dismiss the appeal.