—This was an appeal from a precept issued by the order of the city council of Lafayette, for the collection of a certain amount assessed against the property of the appellant in favor of the appellees, as contractors, for street improvements. A demurrer to the transcript, which by law constitutes the complaint, was sustained, and the cause was continued. At the next term of the court, an amendment to the transcript was made and filed, consisting of an amendment of the final estimate made by the city council. The defendant then again demurred to the complaint, and his demurrer was overruled. He excepted, and filed an answer consisting of four paragraphs. The first was a general denial. The second alleged that the defendant was the owner of a certain tract of land, describing it, and stated that it was the tract of land intended to be described in the plaintiffs’ complaint, and therein alleged to border on the said improvement, and averred that the same did not border on said street at the time the contract for the improvement was entered into. The third alleged that the place where the work was done and the improvement made was not,, at the time of making the contract, a street within the corporate limits of the city of Lafayette, and that the estimates were unjustifiable and illegal. The fourth stated that the work was not done according to contract.
Upon demurrers to the second,- third, and fourth paragraphs of the answer, they were held sufficient. The plaintiffs replied by a general denial. There was a trial by the court, a finding for the plaintiffs, a motion made by the de
The first alleged error is the refusal of the court to dismiss the appeal, on motion of the defendant, after the demurrer was sustained, and before the amendment. There is no bill of exceptions reserving this point. The clerk’s entry-shows that the motion was made, but the grounds of it are not shown. The entry shows that the plaintiffs then filed an affidavit, which is not in the record, and then the court overruled the motion. The point is not properly presented for our consideration.
The second alleged error is the refusal of the court to render judgment on the sustaining of the demurrer to the transcript. There does not appear to have been any request for such judgment by the defendant, nor any objection or exception to the failure of the court to render the same.
The third alleged error is the allowing of the plaintiffs to file the amendment to the complaint, over the objection of the defendant. The record does not show any objection to the filing of such amendment to the complaint. The objection was not made, nor the question reserved in any way.
The fourth alleged error is the overruling of the demurrer to the complaint as amended. The transcript, as amended, shows that the precept was issued on an imperfect final estimate, and that the. perfected final estimate was filed after the appeal had been taken, and after the demurrer had been sustained to the transcript. Is this a cause of demurrer to the transcript? If so, then the demurrer should have been sustained. If not, it was properly overruled. We are of the opinion that the objection in this case is properly taken by demurrer, for the reason that it appears that there was no right in the council to issue the precept from which the appeal was taken. In the case of Balfe v. Johnson, 40 Ind. 235, we attempted to show what amendments could, and what could not, be made on appeal from the precept. A proper assessment is an essential basis on which to award the precept. The making of an assessment after the issuing
The judgment is reversed, with costs, and the cause remanded.
• . Pettit, C. J., having been of counsel for the appellant, was absent.