McCollum et al. v. Uhl. ever of the pendency of said petition, nor of the time set for the hearing of the same." It is also averred that the report of the viewers was not recorded. The statute under which the order was made for the establishment of the ditch in question required the auditor to give notice, and prescribed that the notice should contain "the names of the owners of the lands" that would be affected thereby. 1 R. S. 1876, p. 428, sec. 2. An order made without notice would be void. If notice was given as to some but not as to all the owners of the lands affected, those not notified would not be bound by the order made, and could attack it collaterally. Brosemer v. Kelsey, 106 Ind. 504; Davis v. Lake Shore, etc., R. W. Co., 114 Ind. 364. The attack in this case upon the order being collateral, it is incumbent on the appellee to show that the proceeding is void, and relying upon want of notice to render it void the averments of the complaint must be full and specific that no notice was given. In this respect the complaint is fatally defective. The averment that no notice was given to the then owner of the land, as shown by the records in the recorder's office, is not sufficient. The statute required notice to the owner of the land, whether he was shown to be such owner by the records in the recorder's office or not, and the complaint does not contain an averment that notice was not given to the owner. This qualified negation of notice is not sufficient. The attack here made upon the order is collateral. Before the board of commissioners could be authorized to make an order establishing the ditch the law required the giving of notice. The giving of the notice was jurisdictional, and the fact of such notice was a jurisdictional fact which, in the absence of express averment to the contrary, will, when the order is attacked collaterally, be presumed to have been found by the board prior to making the order. Board, etc., McCollum et al. v. Uhl. v. Hall, 70 Ind. 469; Pendleton, etc., T. P. Co. v. Barnard, 40 Ind. 146; Evansville, etc., R. R. Co. v. City of Evansville, 15 Ind. 395; Board, etc., v. Markle, 46 Ind. 96; Jackson v. Smith, 120 Ind. 520. The appellee sought to meet this by averring that "said board did not find or adjudge, in any order made by it in said proceeding, that said owner of said lands had received any notice whatever of the pendency of said petition, nor of the time set for hearing of the same," but it will be observed that this averment is qualified, as is the averment relative to the giving of notice. The "said owner” referred to being "the then owner as shown by the records in the recorder's office." This averment is even more defective than that relative to the giving of notice. It is not averred that the board did not find or adjudge that notice was not given to the owner of the land, but that they did not find or adjudge that notice was not received by said owner. With reference to the remaining proposition, appellee's premise is unquestionably correct. The lien of the State for taxes is paramount and is superior to the lien of the ditch assessment. It does not follow, however, that because appellee has acquired the paramount and superior lien upon the land appellant may not also have a valid and subsisting lien thereon, although junior and subordinate. The order establishing the ditch was made June 9th, 1879. The lien of the assessment attached at that time. Appellee's tax lien was not foreclosed until the 15th day of December, 1885. There seems to have been no effort to foreclose the tax lien as against the ditch assessment. Appellee in his brief says this was because at that time no "person or legal entity of any kind or description amenable to legal process had acquired any interest in or lien against the land by virtue of the ditch proceeding." It is not material why there was no foreclosure as against the assessment. It is enough that there was none. That lien still exists and its holder is en McCollum et al. v. Uhl. titled to enforce it subject to the superior rights of appellee under his paramount lien. Such rights as the appellant McCollum has must, however, be worked out through the county treasurer. If the owner of the land will not pay the assessment it is the duty of the treasurer to sell the land. Of course the purchaser will take it subject to appellee's claim, and must redeem from the tax foreclosure sale before he can realize any benefit from his purchase, but this we think he has equitably the right to do. The court erred in overruling appellants' demurrer to the complaint. This renders it unnecessary to consider the other errors assigned. Judgment reversed, with directions to the circuit court to proceed in accordance with this opinion. Filed April 1, 1891. ON PETITION FOR A REHEARING. MCBRIDE, J.-Appellee's counsel have filed a very earnest and ingenious brief in support of their petition for a rehearing. They say two question are involved: 1st. Is it possible to extinguish the lien of a ditch assessment by the foreclosure of a superior tax lien ? 2d. Who are necessary parties to a suit for that purpose? There can be no doubt that it is possible to extinguish the lien of a ditch assessment by the foreclosure of a superior tax lien. No such question confronts us in this case, for the reason, as stated in the original opinion, that there was no attempt to foreclose the tax lien as against the ditch assess ment. Counsel now say: "Where a lien such as a ditch assessment exists, and has not reached the period of vesting, the effect of foreclosing a superior lien is not to bar an equity of redemption-none exists-but to extinguish the lien itself." The error in appellee's position is, that he assumes that McCollum et al. v. Uhl. there can be a valid ditch assessment in which no one has an interest entitling him to be made a party to the proceeding seeking its extinguishment, and that it is possible, by a decree of court, to extinguish the lien of such assessment without having before the court any of the parties interested in it. The complaint shows the establishment, by order of the board of county commissioners, of a ditch across the land in question, and that the sum of $261.53 was assessed against it as the proportion properly chargeable thereon for the construction of the ditch. This the complaint also shows was done long before the proceeding was commenced to foreclose the tax lien. All who were beneficially interested in the construction of the ditch were interested in the assessment thus made against the particular land. A ditch established by order of the board of county commissioners, for the drainage of wet lands, although it may pass over the lands of many men, and be divided into many allotments for its construction, and the cost of construction may be apportioned to many different tracts, yet it is to be considered as an entirety, and the several allotments and assessments as parts of an entire system. For instance, suppose the allotment to the land in question was of the terminal section of the ditch, and unless it was constructed there would be no outlet, could it be said that the owners of lands living above and assessed for the construction of the ditch had no proprietary interest in such terminal allotments? If appellees contention is right, after a ditch has been established a section may be cut out of it, or the outlet destroyed by the foreclosure of a tax lien upon some one of the tracts of land through which it is laid, in a proceeding to which none of those interested in the construction of the ditch are parties, although, as to the remaining tracts, the owners may still be compelled to construct their allotments, or, indeed, may have already done so. If this is true, there is at least one case in which the property rights of a citizen may be taken from him without due process of law. We Mills et al. v. Hardy et al. can not assent to such doctrine. In our opinion the petitioners, and other parties to the proceeding, assessed for the construction of the ditch, had such an interest in the assessment in question that its lien could not be extinguished by the foreclosure of the paramount lien without giving them their day in court. The petition for a rehearing is overruled. No. 14,965. MILLS ET AL. v. HARDY ET AL. DRAINAGE.-Appeal.-Parties.-Judgment for Costs.—Collateral Attack.—Under the drainage law of 1875 (Acts 1875, p. 97) an appeal from the board of county commissioners transfers the entire cause to the circuit court for trial de novo, and all the persons who were parties to the cause before such board are parties in the circuit court, and are bound by the judgment for costs rendered, and they can not attack it by an injunction to restrain its collection. Their remedy is by appeal. From the Cass Circuit Court. J. W. McGreevey and F. Swigart, for appellants. OLDS, C. J.-In 1880 John McKinney filed his petition before the board of commissioners of Carroll county for the construction of a ditch as proposed and described in said petition. Under the act of 1875, Acts of 1875, p. 97, viewers were appointed and reported in favor of the ditch. Thereupon proper notice was given, and the 8th day of June, 1881, fixed for the hearing of the petition. At the time fixed for the hearing Alexander Hardy, Thomas Hardy and William Hardy filed a remonstrance against the construction of the proposed ditch. The grounds of remonstrance being, in substance, as follows: |