who briefed said cause on appeal in behalf City, supra. It will be observed that by its terms the Warren Bros. Company released to the city the right to use the patents held by the former, covering the process of constructing and laying said bitulithic pavement during 1905 and 1906, and that the company agreed also to furnish and deliver to the contractor in any contract for the construction of Warren's bitulithic pavement let in either of said years the required amounts of the specified grades of cement, and also of said flush coat composition, in was overruled May 28, 1907, and a petition consideration of which the city agreed to cause any such contractor "to pay to Warren Bros. Company for the use of the patents so transferred and the materials so delivered a sum equal to 90 cents per square yard for each and every yard of said bitulithic pavement so laid." to transfer to the Supreme Court was denied June 28, 1907, and on or about that day a certified copy of the opinion and mandate of the Appellate Court was filed in the office of the clerk of the trial court, and thereafter, November 29, 1907, the cause was redocketed in said court on this appellee's motion, as a cause pending therein. Facts are averred to the effect that appellee diligently prosecuted his appeal in said cause. May 21, 1906, the contract for the improvement of State avenue was awarded to appellant, and appellant thereupon formally entered into a contract with the board of public works, by which the former agreed to do the work according to specifications. August 24, 1906, the board of public works adopted and approved the final assessment roll on the work, showing the assessments sought to be enforced in this action. The answer contains a number of specifications respecting the invalidity and illegality of the proceeding which bring it within the decision in Seibert v. City, supra. The answer closes with the following: The board of public works, by notice duly given, called for sealed bids to be submitted December 29, 1905, for performing the work. December 28, 1905, appellee commenced an action in the superior court of Marion county against the city and the members of its board of public works, alleging facts to the effect that the proceedings for the improvement of State avenue were invalid, by reason of the contemplated use as specified of said patented process and of said materials manufactured and supplied only by Warren Bros. Company, and seeking to enjoin the city and its board of public works from proceeding in the matter further than to receive and open bids for the work, On application a restraining order was is sued against defendants to the proceedings December 28, 1905, as prayed. December 29, 1905, the board received and opened bids for the construction of the work. Appellant's bid was found to be the lowest and best bid. By reason of the restraining order, the contract was not awarded at that time. Appellant knew, when it submitted its bid, and when the bids were opened, that said action was pending, and that the city and its board were restrained from proceeding further with the work. Facts are averred to the effect that appellant, though not a party to the cause, employed counsel, procured the attendance of witnesses, and participated actively in the defense of said action, that it was present by its president throughout the trial of the injunction proceeding, and that its president testified as a witness for the defense therein. May 10, 1906, the court found for the defendants in the injunction proceeding, and rendered judgment against this appellee, plaintiff therein, dissolving the restraining order, and for costs. June 1, 1906, appellee filed his motion for a new trial, which was on that day overruled, and appellee prayed and was granted an appeal to the Appellate Court. June 11th he filed his bill of exceptions containing the evidence, and thereafter filed The material part of the reply is, in subthe transcript on appeal to this court. Ap-stance, as follows: The board of public works pellant in this proceeding employed counsel, modified the preliminary resolution so as to "The defendant further says he did not stand by with full knowledge and without objection permit the plaintiff to expend large sums of money, time, and labor in making said improvement as set out in plaintiff's complaint, but that he, by his said action and by the diligent prosecution of his said appeal, claimed and does under and pursuant to which the same was exnow claim that said contract and the proceedings ecuted were and are illegal and void, that at no time did he acquiesce in plaintiff's claim, but plaintiff knew and had knowledge and notice before the execution of its contract with said board of public works that he was claiming said proceedings to be void and wrong, and had been so claiming all the time from the time it made of said appeal, and that during all of said time its bid as aforesaid until after the final decision the plaintiff had knowledge and notice that the defendant herein was contesting with said city and said board of public works the legality of said proceedings and the right of said board to order said State avenue to be laid with said Warren's bitulithic pavement under said proceedings, and the plaintiff herein appeared in said cause as aforesaid, and that said contract was let to the plaintiff, and said work was done by it after said action was begun, and after it was thereby notified that he, this defendant, claimed that said proceedings were void, but notwithstanding the plaintiff proceeded to execute said contract and do said work, and is now claiming the alleged liens by virtue thereof as set out in its complaint herein." provide for Warren's patent bitulithic pave- cute an appeal from said assessment roll to ment, pursuant to the petition of the majority the circuit or superior court. The reply conof the property owners affected. Appellant, cludes as follows: under a requirement of the board, filed with its bid a certified check, with a condition that it would enter into a contract to perform the work if its bid should be accepted. Appellant when it filed its bid and check had no "The plaintiff denies that it had any knowledge of the defendant's intention to proceed furplaintiff nor was it made party to the said prother in said cause. No notice was given to this ceedings, nor did plaintiff know or have any cause to know that defendant would contest the knowledge of the injunction proceedings. validity or legality of any lien or liens against Appellant's bid was accepted May 18, 1906, tract and doing the work thereunder, and the his said property for the letting of the coneight days after the dissolution of the re- defendant did not even have said cause restraining order. May 25, 1906, it entered docketed nor in court until more than four into a contract in writing with the city for this plaintiff had instituted this suit and emmonths after it was decided on appeal and after the performance of the work, and executed a ployed counsel herein, and said cause had apbond with a $10,000 penalty to complete it parently been abandoned by the defendant." according to the specifications by September [1, 2] In determining the sufficiency of the 15, 1906. Appellee knew at all times from answer and also of the reply, and whether December 29, 1905, to May 25, 1906, that ap- the court erred in overruling the demurrer to pellant was the lowest bidder, and that said the former or in sustaining the demurrer filed check had been filed, but he took no steps to to the latter, it is well to observe that the make appellant a party to the action, or to facts here bearing on the validity of the pronotify it that the action was pending. When ceedings for the improvement of State avenue appellant entered into the contract May 25, are identical with those involved in Seibert v. 1906, to perform the work as aforesaid, ap- City, supra. The court there considered pellee had not filed his motion for a new trial these identical proceedings from the incepin the injunction proceeding, and had given tion of the enterprise to the advertising for appellant no notice of his intention to prose- bids. It is held there that the fact that the cute said cause further. Appellee, with full specifications required the use of a certain knowledge of the responsibility of appellant particular brand of material to the exclusion under its bid and deposit, stood by without of all others, which material was manufacnotice to appellant until the latter had exe- tured and could be supplied by but one comcuted the contract and bond aforesaid. The pany, in effect destroyed competition in bidreply specifically denies that appellant par-ding, that as a consequence one step required ticipated in the defense of the injunction pro- by the statute in proceedings such as are inceeding, either in the trial court or on appeal, volved here competitive bidding-was in efor that it employed counsel or procured the fect omitted, and hence that such proceeding attendance of witnesses to that end. Appel- came within the condemnation of the public lant's president was present and testified as policy of the state as declared by the Legisa witness in the injunction proceeding, but he lature, and hence that such proceedings were did so, not as appellant's representative, but in void and could not support a valid contract. his individual capacity, and at the request We regard that case as controlling authority of Warren Bros. Company. Appellant did that the proceedings here were invalid. request counsel for defendants in the injunc- we have said, that decision received the aption proceedings to take certain steps and file proval of the Supreme Court by the denial of certain answers therein, but the request was a transfer. It has since been recognized as ignored. Appellant did not know that a mo- sound. Tousey v. City, 175 Ind. 295, 94 N. E. tion for a new trial had been filed in said 225. Competitive bidding in the letting of proceeding, or that it had been appealed, un- such a contract as that for the improvement til after the work had been entirely complet- of State avenue is mandatory and jurisdiced according to contract. Appellee stood by tional. It having in effect been omitted here, day by day and saw appellant spending its the proceedings were invalid and void. Edmoney improving said street in front of his wards v. Cooper, 168 Ind. 54, 79 N. E. 1047; property, and receiving the benefit of the Zorn v. Warren-Scharf, etc., Co., 42 Ind. App. same, without verbal or written notice of any 213, 84 N. E. 509. kind to appellant showing his intention to prevent appellant from receiving pay for such work. Immediately after the work was completed, the board of public works made out a primary assessment roll, disclosing the assessments against appellee's property, and gave notice as required by the statute, fixing a time when property owners affected might appear and remonstrate against or object to the same. Appellee took no steps in opposition to such assessment roll, as affecting him, and the same was confirmed. Appellee did not prose As [3] The infirmity here appearing on the face of the proceedings is susceptible to collateral attack. Brownell, etc., Co. v. Nixon, 48 Ind. App. 195, 92 N. E. 693, 95 N. E. 585. [4] There are left for our consideration only the elements of estoppel and laches. "It is a general rule, now fully accepted in this state, that where the owner of property subject to assessment for public improvements stands by and makes no objection to such improvements which benefit his property, he may not deny the authority by which the improvements are made, nor defeat the assessment made against his property for the benefits derived And this is true both where the proceedings for the improvement are attacked for irregularity and where their validity is denied, but color of law exists for the proceedings.' Board v. Plotner, 149 Ind. 116, 48 N. E. 635, and cases. See, also, Taylor v. Patton, 160 Ind. 4, 66 N. E. 91; Edwards v. Cooper, supra; Phillips v. Kankakee, etc., 178 Ind. 31, 98 N. E. 804, Ann. Cas. 1915C, 56. of exceptions containing the evidence and perfected the appeal; August 24th, the work of the improvement was completed; April 24, 1907, the injunction proceeding was reversed on appeal. The reply contains an averment that appellant when it submitted its bid had no knowledge that the injunction proceeding had been commenced. That it [5, 6] The invalidity of the proceedings had such knowledge prior to entering into appearing, the burden rested on appellant to the contract, however, is not denied. allege the facts constituting the estoppel. fact of such knowledge affirmatively appears Taylor v. Patton, supra; Works' Practice, from the reply in that it contains a general $ 606. No intendments are made in favor averment that all allegations of the answer of a plea of estoppel, and it is incumbent on not specifically denied by the reply are adthe pleader to plead fully all the facts es-mitted, and also in that it appears from the sential to the existence of an estoppel. Troy-reply that appellant made certain suggestions er v. Dyar, 102 Ind. 396, 1 N. E. 728; 16 Cyc. 809. The relative to conducting the defense of the injunction suit. There is an averment also that appellee, after meeting with an adverse decision in the injunction suit, did not inform appellant that he intended to move for a new trial or proceed further with such fact. There is, however, no averment that appellee deceived appellant in these respects. The situation then was as follows: Appellee, knowing that appellant had knowledge of his objection to the improvement as manifested by the injunction proceeding, proceed [7] With these principles in mind, we proceed to determine the sufficiency of the answer and the reply. The invalidity of the proceedings did not appear on the face of the complaint in this action. The pleader, ap-action, and that appellant did not know such parently in anticipation of an answer that the proceedings were invalid, alleged in the complaint that appellee, with full knowledge and without objection, permitted appellant to expend large sums of money, etc. By the answer the facts showing the invalidity of the proceedings are fully pleaded. It con-ed to prosecute his appeal, and said nothing tains in addition other averments meeting the allegations of the complaint that appellant stood by without objection, etc. These other averments are to the effect that appellee brought and prosecuted the injunction proceeding, and, meeting with an adverse decision, he promptly appealed to a higher court. There are general allegations and facts are specifically alleged to the effect that before appellant contracted with the "No estoppel can arise of course where the city and at all times from and after the property owner does not acquiesce in the contime when it made its bid it had full knowl-struction of the improvement, but, on the con25 Am. & edge that appellee was claiming that said trary, enters his protest_thereto." Eng. Encyc. of Law (2d Ed.) 1206; Edwards v. proceedings were void, and that he was conCooper, supra. testing that question with the city. In our judgment, the answer successfully met all the averments of the complaint, and that the court did not err in overruling the demurrer filed to it. [8] Turning our attention to the reply, the parties apparently regard that some importance attaches to the following dates and events disclosed by the answer and the reply: December 28, 1905, appellee commenced the injunction suit and the restraining order was issued; December 29th, appellant submitted its bid; May 10, 1906, the injunction proceeding was decided against appellee by the trial court, and the restraining order was dissolved; May 18th, the contract for the improvement of State avenue was awarded to appellant; May 25th, appellant entered into a contract to do the work, and filed its bond, and immediately commenced the work; June 1st, appellee filed and presented his motion for a new trial, which was overruled, and an appeal prayed and granted; June 11th, appellee filed his bill to appellant respecting his intention. Appellant, with knowledge aforesaid, proceeded with the work and made no inquiry whether appellee was continuing his objections as indicated by his attitude in that case. In order that estoppel may be effective here, it must appear that appellee did stand by and without objection permit the work to be commenced and continued. new one. It would seem that no more emphatic protest could be entered than as manifested by the prosecution of a cause to enjoin the proceedings as invalid and void. An appeal is a continuation of an action, rather than the commencement of a Appellant having knowledge of the action in the trial court should be chargeable with knowledge of its continuance on appeal. Farmers' Bank v. First Nat. Bank, 30 Ind. App. 520, 66 N. E. 503. [9] An appeal is a right granted by statute. A person having knowledge of a pending appealable cause is conclusively presumed to know that a judgment entered in such cause may be appealed from within a limited time. Dunnington v. Elston, 101 Ind. 373. See, also, Smith v. Cottrell, 94 Ind. 379; Griswold v. Ward, 128 Ind. 389, 27 N. E. 751. [10] We conclude that it does not appear from the reply, considered in its relation to the answer, that appellee stood by, and with Appellants assign as the sole error complained of the overruling of their motion for a new trial, and under such assignment present the single question of alleged error in giving a certain instruction. The instruction complained of is fairly open to criticism, in that it contained certain assumptions respect out objection or protest permitted appellant to prosecute the work; that, on the contrary, it appears that appellee, without in any manner deceiving or misleading appellant, manifested his nonacquiescence in an effective manner, and that appellant was chargeable with notice of the fact. The reply does not disclose that appelleeing the subject-matter of which the evidence was guilty of laches in the matter of moving for a new trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1609, 1759, 1760, 1763; Dec. Dig. 270(2).] Appeal from Circuit Court, La Porte County; James F. Gallaher, Judge. Action by Josephine Arnt against Bennett E. Morgan and others. Judgment for plaintiff, and defendants appeal. Affirmed. D. E. Kelly, of Valparaiso, T. C. Mullen, of Michigan City, and Doran & Conboy, of La Porte, for appellants. F. R. Marine, of Valparaiso, and H. W. Worden and E. E. Weir, both of La Porte, for appellee. CALDWELL, J. July 5, 1912, appellee, a young married woman of Polish nativity, while driving a horse and buggy northward along the pike leading from Valparaiso to Chesterton, met a motor truck, operated by appellants. Appellee's horse became frightened at the motor truck and the manner of its operation, and ran away, and as a consequence appellee was thrown from the bug gy, suffering a compound fracture of a leg and other serious injuries. As a result she was confined in a hospital for a number of months, receiving treatment for her injuries. Such treatment has not resulted in a complete recovery or restoration of her former physical condition, in that by reason of her injuries she is to an extent permanently crippled. She brought this action to recover damages suffered on account of her injuries, charging appellants with negligence in operating the truck. A trial resulted in a verdict in her favor for $1,400, on which judgment was rendered. was somewhat contradictory, and as a con- 1. APPEAL AND ERROR 798 NOTICE OF Error, Cent. Dig. §§ 3155-3157; Dec. Dig. ~~ NOTICE OF 2. APPEAL AND ERROR 426 [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2151, 2162-2164; Dec. Dig. 426.] 3. APPEAL AND ERROR 356 - DISMISSAL FAILURE TO PERFECT-RULE OF Court. Under rule 36 of the Supreme and Appellate Courts (55 N. E. vii), relative to the dismissal of causes, where a case has been on the docket of the Appellate Court more than 90 days, and no steps have been taken to perfect the appeal, except to make an attempted service of notice thereof that was not good, the appeal will be dismissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. 356.] Appeal from Circuit Court, Porter County; H. H. Loring, Judge. Action by Wilfred H. Sanders against the Chicago, Lake Shore & South Bend Railway Company. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss. Appeal dismissed. F. J. Lewis Meyer, of South Bend, and F. B. Parks, of Valparaiso, for appellant. George E. Hershman, of Crown Point, for appellee. FELT, C. J. Appellee by his attorney has entered a special appearance and moved to dismiss this appeal for the alleged reason that the court has not acquired jurisdiction over him. In his motion it is alleged that appellant did not serve appellee or his attorney with notice of the appeal as provided by section 681, Burns 1914, Statutes; that the only information obtained by him of the proposed appeal prior to the filing of the transcript on July 21, 1916, was from a registered letter which appellant's attorney sent to George E. Hershman, appellee's attorney, containing a "purported notice of appeal"; that said letter came to Crown Point, Ind., the home of said Hershman, on July 19, 1916, when he was absent from the town, and was taken from the post office by his stenographer, who signed the usual receipt for a registered letter. The motion to dismiss contains a copy of the letter, and of the notice of appeal inclosed with the letter. It is not contended that the notice is insufficient in form or substance, but that it was not served as contemplated by the statute, and is insufficient to give the court jurisdiction over appellee or to authorize a consideration of the appeal on its merits. Appellant contends that appellee has not complied with the rules of the court in presenting his briefs on the motion, and that inasmuch as it appears that appellee's attorney actually cbtained possession of the notice of appeal in due time, the manner of the service is immaterial and the notice is sufficient. [1] On December 30, 1916, appellant was duly served with notice that on January 16, 1917, appellee would file a motion to dismiss this appeal, and was furnished a copy of the motion. Appellee's motion and briefs thereon were filed on January 15, 1917. Rule 7 (55 N. E. iv) requires 10 days' notice, unless otherwise Appellee has substantially complied with the rules, and the question of the sufficiency of the service of the notice of appeal is duly presented for our determination. [2] Section 681, Burns 1914, provides that: "An appeal may be taken by the service of a notice in writing on the adverse party or his attorney and also on the clerk of the court." Section 504, Burns 1914, provides that be served upon any party, when made by a proof of the service of any notice required to person other than the sheriff, shall be by affidavit, or by the written admission of the party served, and requires such proof to show the time and place of service. These statutes contemplate that the person, making the service of notice, whether an official or a nonofficial, shall be in a position to definitely inform the court, either by official certificate or by affidavit, that the party was actually served with notice, in compliance with the rule, order, or statute in pursuance of which the notice was issued. Service of notice has a definite meaning, and unless otherwise provided by law means personal service of the individual in such way that the party who makes the service may be in a position to make due proof thereof to the court, and in this state the statute. supra, seems clear and explicit as to the proof that is sufficient. "Service" has been defined as "the delivery or communication of a pleading, notice, or other paper in a suit, to the opposite party, so as to charge him with the receipt of it, and subject him to its legal effect." Burrill, Law Dictionary; 35 Cyc. p. 1432. Unless provided by statute service of notice of an appeal, or similar process, cannot be made by depositing such notice in the mail duly addressed to the party upon whom service of the notice is sought to be made. Some states have statutes which authorize certain notices to be given by mail, but even in such states parties relying upon the mails have been held to a strict compliance with the statute to make such service of notice sufficient. We have no such statute. The exact question presented by this motion does not seem to have been decided in this state, but the decisions in other jurisdictions and our statutes as far as applicable clearly indicate that the service of the notice of appeal relied upon in this case in unwarranted and insufficient to invoke the jurisdiction of the court further than to determine its want of jurisdiction. As supporting our conclusion, see the following: 35 Cyc. p. 1432; 7 Words and Phrases, p. 6432; Rhode Island, etc., Co. v. Keeney, 1 N. D. 411, 48 N. W. 341; Rathbun For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |