Bannister v. The Grassy Fork Ditching Association. assessment; that the estimate made and returned by the engineer was larger than the aggregate amount of benefits assessed; that no new or re-assessment was made by them or other appraisers, and that he never had any notice whatever of any meeting of said assessors to equalize such assessment. Our attention is not directed to any authority which will sustain this answer, so far as it relates to a want of actual notice. We do not find that actual notice of the time and place of making the assessment is required. The notice may be given in a newspaper. Section 9. Section 7 of the act is as follows: "Sec. 7. Before the actual construction of the work shall be begun, surveys of it, and estimates of its costs shall be made, and the appraisers' schedules of assessments returned to the secretary; and if the estimated cost of the work shall exceed the aggregate amount of the assessments, the work shall not be further prosecuted." Counsel for appellee say, first, that this paragraph of the answer is no more than the general denial which was in; and, second, that, to make it good, the defendant should have alleged that he was damaged, or likely to be damaged, by reason of the inadequacy of the assessment to complete the work. The complaint states the amount of the estimate of the cost of construction of the work, and that it was less than the assessments. We think, therefore, that the general denial put the matter in issue, and that the special paragraph of answer on that subject was unnecessary. There was, for this reason, no available error in sustaining the demurrer to it. The third paragraph of the answer alleges, that the defendant is not a member of the association; that he had no actual notice that the appraisers would, at any time or place, meet to begin and make the assessment; that when said appraisers were on the line of the ditch, on the day named in the notice published in a newspaper in said Grant county, this defendant and others, whose lands have been assessed, were pres Bannister v. The Grassy Fork Ditching Association. ent with said appraisers, and asked of them if they were appraising the benefits and damages to their lands; and that said appraisers informed them that they were not assessing benefits and damages to be incurred in consequence of the construction of said ditch, and that thereupon the defendant and others went away and gave no attention to the action of said appraisers; and defendant avers, that if there was any other assessment made by said appraisers, no notice was given of the time and place of making the same. We are of the opinion that the court committed no error in sustaining the demurrer to this paragraph of the answer. Perhaps the appraisers had completed the assessment before the inquiry was made of them; or perhaps they were then only engaged in making a reconnoisance of the ground preparatory to the making of the particular assessments. There is not enough disclosed, we think, to affect the assessment. The fifth paragraph of the answer avers, that the defendant is not a member of the association; that the schedule. does not contain all the lands benefited by said ditch. The paragraph designates by their proper description one quarter section of land and one forty-acre tract, which are omitted, and gives the names of the owners, which are alleged to be benefited, and are not in the schedule; and that defendant had no actual notice of the time and place of making the assessment. This paragraph presents the same question, in a little different form, as that considered in speaking of the complaint, and need not be further considered. We need not decide whether, if the schedule, on its face, showed that it embraced all the lands which, in the opinion of the appraisers, were benefited, the fact could be controverted in this way. The sixth paragraph of the answer alleges, that, after the appraisement of benefits was made and returned by the appraisers, the same was changed, in this, that the assessments were altered from lesser to larger sums, and from larger to lesser sums, without any meeting of the appraisers Bannister v. The Grassy Fork Ditching Association. to equalize the same, and without any advertisement for such meeting. We think this answer is bad, for the reason that it does not show that the defendant was in any way injured in consequence of what was done. The only question presented under the motion for a new trial is, whether the court erred in allowing the plaintiff to introduce and read in evidence the written appointment of the assessors by the judge of the common pleas. A petition to the judge, asking him to appoint the appraisers, was given in evidence. The appointment appears to have been made by the judge at chambers, on a separate paper, or perhaps written on the petition. The objections were, that it was not the best evidence, was not in any manner authenticated, and because the signature of the judge was not proved, he being long since out of office, and because no copy of such appointment had been served on the defendant, was not matter of record in the common pleas court, and was not made a part of the complaint. The sixth section of the act authorizes the circuit court, or the common pleas, in term, or a judge thereof in vacation, to make the appointment. Was this paper properly admitted in evidence? We think it was not. The appointment of the appraisers was an act done by the judge, out of court. The paper was not filed, or required to be filed, in any court. It seems to us that the genuineness of the paper should have been proved, when the objection was made, before it was admitted in evidence. The judgment is reversed, with costs; and the cause is remanded, with instructions to sustain the demurrer to the complaint. Mills v. The State. RICH ET AL. V. THE GRASSY FORK DITCHING ASSOCIATION. From the Grant Circuit Court. A. Steele and R. T. St. John, for appellants. Van Devanter & McDowell and D. V. Burns, for appellee. DOWNEY, J.-On the authority of Bannister v. The Grassy Fork Ditching Association, at the present term, ante, p. 178, this cause, which involves the same questions as were decided in that case, is reversed, with costs; and the cause is remanded, with instructions to sustain the demurrer to the complaint. MILLS v. THE STATE. CRIMINAL LAW.-Indictment Charging Distinct Offences.—Election Between Held, that the indictment charged only one substantive offence, that of a Held, also, that the election to place the defendant on trial for a rape, with the order requiring such election, was a nullity, and did not take out of the case the charge of an assault and battery necessarily included in the Mills v. The State. charge of a rape, which minor offence need not be separately charged in an indictment for the greater. Held, also, that the defendant took said new trial as to the whole case, and it was error to sustain his objection to being tried thereon for a rape, and to put him on trial for an assault and battery. From the Lagrange Circuit Court. A. Ellison and A. A. Chapin, for appellant. C. A. Buskirk, Attorney General, for the State. BUSKIRK, J.-The appellant in this cause was prosecuted and tried on the following indictment: "State of Indiana, Lagrange county, ss. In the March term of the Lagrange Circuit Court, A. D. 1874. The State of Indiana v. Jacob Mills. "The grand jurors for the county of Lagrange, upon their oath, present that, at said county and State, on the 24th day of April, A. D. 1872, Jacob Mills did, in a rude, insolent and angry manner, unlawfully touch, strike and wound Lovinna Draggoo, a woman, and did, then and there, her, the said Lovinna Draggoo, a woman, unlawfully, forcibly, and against her will, feloniously ravish and carnally know. "CYRUS M. WADE, Special Pros. Att'y." At the March term, 1874, of the Lagrange Circuit Court, the appellant, before pleading, moved to strike out of the indictment that portion which charges a simple assault and battery, which motion was overruled, and exception taken. He then moved the court to compel the prosecutor to elect on which charge contained in the indictment he would try the appellant, which motion was sustained, and the prosecutor elected to try him upon the charge of rape alone. Appellant then moved to quash the indictment, which was overruled, and exception taken. He was then arraigned, and pleaded not guilty, and was tried by a jury, who returned the following verdict: "We, the jury, find the defendant guilty of assault and battery, and fix his fine at eight hundred dollars, and four months' imprisonment in the county jail. "T. G. STARKEY, Foreman." |