
    Ammon et al. v. Horn, Auditor, et al.
    
      County commissioners — Improvement proceedings — Remedy of person aggrieved —Injunction does not lie, when — Assessments, penalties and costs of litigation.
    
    (No. 15990
    Decided February 11, 1919.)
    Error to the Court of Appeals of Lorain county.
    
      Messrs. Stroup, Fauver & Rice, for plaintiffs in error.
    
      Mr. G. B. Findley, for defendants in error.
   It is ordered and adjudged by this court, that the judgment of the court of appeals be, and the same is hereby, affirmed, for the reason that it appears expressly and affirmatively from the petition, that the improvement petitioned for was completed in accordance with the plans and specifications and the order of the county commissioners in reference thereto. There being no departure from the plans and specifications and the order of the commissioners in the construction of such improvement, the plaintiffs in error are not entitled to any relief in this action, but their relief, if they were or are entitled to any, should have been obtained in the manner provided by statute when the order of the commissioners was made and entered granting said improvement.

And this cause coming on further to be heard upon the application of the plaintiffs in error to order that the penalties chargeable on account of the non-payment of the assessment be remitted, and that the costs in the court of appeals and in this court be apportioned among the parties hereto, the court finds that the issue of law presented by the pleadings in this action is a question that was not free from doubt, and one upon which the several courts hearing the same have differed, and that the action was brought by the plaintiffs in good faith, and that they were entitled to litigate the same without incurring the penalties chargeable.

It is therefore ordered and adjudged, that upon the payment of the assessments mentioned in the petition within thirty days from the entry of this decree, that no penalties be charged thereon, and the same are hereby specifically remitted.

It is further ordered and adjudged, that the plaintiffs in error pay the costs expended by them in the court of appeals of Lorain county and in this court, and that the defendants in error pay the costs expended by them in the same courts, for all. of which execution is awarded.

Judgment affirmed.

Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.  