
    City Bond Company v. Wells et al.
    [No. 5,043.
    Filed March 8, 1905.]
    1. Abatement. — Liens. — Street Assessments. — Appeal to Circuit Court. — -Where one or more landowners appeal from a street assessment made by a city council, the whole assessment is superseded, and on appeal, the landowners who did not join in such appeal may plead in abatement of an action to foreclose such street assessment lien, that such appeal has not been determined, p. 675.
    Erom Hancock Circuit Court; F. W. Felt, Judge.
    Action by tbe City Bond Company against Samuel E. Wells and wife. Erom a decree for defendants, plaintiff appeals.
    
      Affirmed.
    
    
      8. M. Bichcreek, Mason & Jackson and Dowling & Hough, for appellant.
    
      Fphraim Marsh and ~W. W. Cook, for appellees.
   Roby, J.

The issues and facts in this case are identical witb those considered in tbe City Bond Co. v. Bruner (1905), ante, 659, witb tbe exception that tbe plea in abatement is filed by landowners who did not appeal from the action of tbe common council in approving tbe report of tbe city commissioners. It is shown in tbe plea that divers persons did appeal from such action to tbe circuit court, according to tbe provisions of section five of tbe act of March 11, 1901 (Acts 1901, p. 534, §3623e Burns 1901), stating as their grievances each ground specified in tbe statute. It is also shown that such appeals are pending in the circuit court, no final judgment therein having been rendered. If it should be decided upon tbe trial of such appeal “that tbe proceedings for such improvement are invalid” there will manifestly be no- lien for any amount against any of tbe persons assessed for tbe construction of tbe proposed improvement. If it shall be determined that tbe benefits assessed are too high in proportion to tbe benefits assessed against property similarly situated, tlie circuit court is expressly given power not only to reduce tlie assessment of tlie parly appealing, but to nidify .ajid equalize the entire assessment.

It is in terms provided that “All persons owning property assessed shall tak'e'nPtice of such appeal' and"shall be honnd by the, judgment pf the court.” Acts 1901, ^ supra.,,,, The effect of the .foregoing provision is to make persons .owning property assessed"for the construction of the improvement parties to the appeal. As such parties they are hot only hound by a judgment adverse to -them^ But -are entitled to the benefit of one releasing them from liability. The legislature did not intend that they should -“take, notice of- the appeal” only in order that the assessment should be firmly fastened upon them. This conclusion is compelled by the language of -the act,- and accords with-the reasoning-oi -the Supreme Court in a case where a similar conclusion -Was reached, the facts being-much-more difficult' and-the-propositions much more obscure than in the case under consideration. Mills v. Hardy (1891), 128 Ind. 311.

Judgment affirmed.  