Wilson v. State ex rel. Rhine

Gavin, J. This was a proceeding by appellee to enforce the payment of a ditch assessment. The appellant filed an answer of general denial, together with an affirmative answer. To the second paragraph of answer, being the affirmative matter, a demurrer was sustained with an exception. This ruling of the court is assigned as error, and argued in this court, and the sufficiency of the answer is the only question argued in appellant’s brief. [697] Filed Feb. 15, 1894. The answer is identical with that passed upon by the Supreme Court in the case of Racer v. State, for Use, 131 Ind. 393. The pleading was in that case held bad, and we are unable to see any reason why the decision there is not controlling here. The holdings of that case have been expressly approved by the Supreme Court in Racer v. Wingate, 36 N. E. Rep. 538. It is there said by Coffey, J., referring to this case and that of Indianapolis Gravel Road Co. v. State, ex rel., 105 Ind. 37: “Each of these cases was an action to recover assessments. It was held, and we think properly, that it was no defense to such an action that the work was not completed according to the plans and specifications and the order of the court. Nor was it a defense that the commissioner and contractor were not prosecuting the work pursuant to the plans and specifications.” Judgment affirmed.