Case v. Johnson

Biddle, J. — This suit was commenced in the Benton Circuit Court, and was sent to the Tippecanoe Circuit Court, by a change of venue. It was brought by the appellees, and seeks to enjoin the prosecution of certain works of improvement on á street in the Town of Powder, in Benton county. The complaint was answered, and trial had by jury, resulting in a verdict and judgment for the appellees, perpetually enjoining the further prosecution of the work. Appeal. Several assignments of error are made in this court, and several questions presented by the record, but counsel for the appellant seem to think that there is but one leading question in the case, which is raised by sustaining a demurrer to the third paragraph of the ansver, and by an instruction to the jury, namely, the sufficiency of the notice given by the Town of Fowler, of the letting of the work, which is as follows : “ Legal Notice. — Noti.ce ! “ Notice is hereby given that the Board of Trustees of the Town of Fowler, Benton County, Indiana, will receive sealed bids for the improvement of Fifth street, in said Town of Fowler aforesaid, up to 12 o’clock m., of Saturday, September 19th, A. D. 1875. Plans and specifications can be seen by calling upon the clerk of said Town Board. The Board reserves the right to reject any or all bids. O. Barnard, President. “Attest: J. F. Warner, Clerk.” We understand the counsel for appellants to concede, that, if the notice is insufficient, the letting of the work can not be upheld, and that the judgment is therefore right. But counsel for appellees contend, that, if the notice [33] should he held good, there are other grounds in the record upon which the judgment should be affirmed. ¥e will first examine the question as to the sufficiency of the notice. By the notice, bids were to be received up to 12 o’clock m. on Saturday, September 19th, A. D. 1875 '; by the facts in the case, the bids were received and the. work let on Saturday, the 18th day of September, A. D. 1875, the 19th day of September, 1875, being Sunday. This notice has already been held good by this court. Case v. Fowler, 65 Ind. 29. The error, therefore, in holding the notice insufficient, must reverse the case. It is unnecessary to examine the subsequent, questions, for, however much there may be in them to affirm the judgment, were the first error out of the way, it would avail nothing. The instruction to the jury, that, if no' other notice than the one in question had been given, they should find for the plaintiffs, might have been, and probably was, as it lay at the foundation of their .right, the only reason why the jury found for the plaintiff's; at least we can not say that it was not the reason, and thereby affirm the judgment upon subsequent, grounds. They may not have considered any other question in the case, and yet, under the instructions of the court, properly returned the verdict they did, as they were bound by that instruction. The appellees have assigned cross errors, and ask us to examine them, but we can not see that it is necessary; for, if they should be found in their favor, it would make no difference in the judgment for costs, because the first error in the case is against the appellants. The judgment is reversed, at the costs of the appellees ; cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings.