The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-07-20
The Marion County Bond Company
the object of the City Attor-
ney's Ridicule.
CASE NOW BEFORE HIGH COURT
HE SAYS APPELLANT WANTS TO
"BUCk AND GAG" LOT OWNER.
In Spots the Legal Document Bubbles
over with FfneIy-Drawn Sa-
tire-The Case.

"A sensational brief, written by john w.
Kern, was filed in the Supreme Court yes
terday in the case OF the Marion Bond
Company. trustee. against Harry c. John
son, for the foreclosure of an Improvement
lien, that was appealed by the plaintiff
from the decision of Judge Carter, of the
Superior Court. Mr.. Kern represents the
defendant. The Marion Bond Company
brought foreclosure proceedings against
Johnson on an improvement lien for $267.36.
1t was shown in court that the lot was
worth but $3.50. and that the benefits ac-
cruing from the improvements amounted TO
but 500. holding the claim for S16736 to DE
invalid, and the court so ruled. The case
was then appealed TO the Supreme Court.
Mr.. Kern sets out in his brief that S. NJ.
Richcreek. attorney for the Marion Bond
Company. in his brief, omitted the vital
part OF the defendants answer filed in the
Superior Court, in quoting the defense to
the Supreme Court He says that Rich
creeks statement or the case is fair and
substantially correct" and continues by
saying. But 1 desire to call the attention
OF the court in this connection to the fact
that. on Page IA OF appellants argument,
counsel, while pretending to place before
the court the second paragraph of appellees
and vital allegation therein contained TO
wit: And that said lot was not benefited
nor In any wise increased in value by rea-
son OF said Improvement
STATEMENTS IN THE BRIEF.
Basing his argument OH a decision Of the
Supreme Court in the case of the city
against Holt, in which ruling it was held
that defendants in such suits have the
right to plead that assessments are in
Df he
has the power to determine the benefits
accruing as a result of the improvements,
the brief continues: I'm that case the valid
ity of the statute providing for the i'm
provement of streets and other public
places In cities of 10000 was assaied on
the ground that ii provided for an arbi-
trary assessment against abutting property
by the front-foot rule, and that the prop
erty owner was not by the terms of the
statute, accorded a hearing on the question
as TO whether his property had been bene-
nted To the amount OF the assessment
The court sustained the statute on the
ground that by its terms it made definite
and ample provision for such hearing i'm
the foreclosure proceedings to enforce the
lien of the assessment and expressly de-
clded that In such proceeding the defendant
lot owner might plead and prove as a mat
ter OF defense that such assessment was
excessive.
This case is good illustration of the
been perpetrated upon lot owners in In
dianapolis prior to the decision of the
Supreme Court in the Holt case
LAS shown by the special finding of facts
the lot In question was Immediately before
the improvement of the street. of a fair
market value of $3.50. A street adjacent TO
side OF the lot is improved by grading
and graveling, and this $3.50 lot is assessed
at 1901 SO, or $3.50 more than the value of
the lot.
IAN attorney an officer of this court. is
here gravely contending that the courts of
Indiana are not only without power to pre-
vent consummation of the outrage, but
are compelled to take an active part In the
crime by lending their machinery for the
purpose of enforcing the lien and finishing
the work of spoliation and confiscation.
WOULD BUCK AND GAG"
1.-THE appellant would to use the inele-
CANT military phrase, buck and gag the
lot owner by refusing to allow him to inter-
pose any defense to the iniquitous proceed
ing. and. having him thus securely fixed so
that he can make no cutlery, proceed, with
the aid OF the machinery of courts of JUS
tice. to rob and plumber him in leisurely
and gentlemanly fashion"
Regarding the alleged omission of a part
Of the defendants answer, the brief says:
1T is remarkable that counsel, claiming
the attention OF an appellant tribunal, and
assuming TO set forth in his adversary's
defense. not only in haec verba, but in
italics, should omit the allegation contain
ing the vital part OF such defense. Such
conduct would almost incline to be-
lieve that counsel indulging in il had a per-
sona and pecuniary interest in this effort
to enforce a $267 assessment against $3.50
lot.
I'VE say almost OF course, we would
never be altogether convinced that a MEM
Der of the profession OF Marshall. Kent,
Webster, Choate EvartS and Harrison
would engage personally in the business OF
buying and foreclosing such outrageous
claims as that sought to be enforced in this
action.
Counsel. in his italicised statement as
to the matter contained i'm the second para
graph of answer, Omits the very important
allegation that said lot not benefited
nor in any wise increased in value by rea-
son of said Improvement
lit was necessary that he should omit II.
for II he had Incorporated it, his entire
argument of the first assignment of error
would have fallen to pieces of its own
weight, for that argument consists of
assault on that paragraph of answer based
on the ground that all it's allegations were
mere conclusions OF the pleader and did not
contain any distinct averment OF fact"
In closing Mr.. Kern argues that while
the statutes provide for the arbitrary as
sessment OF the front-foot rule, courts
OF equity will exercise that power which
they have ACKNOWLEDGEMENTS of stat
ute-to prevent spoliation and contiscation."