The opinion
Hart, J., (dissenting). Judge Wood and myself do not think that the majority opinion is sound when all the material facts contained in the record are considered. Not only did the defendant file a cross-bill assailing the validity of the improvement district on numerous grounds, as stated in majority opinion, but in addition it may be said that no objection was made by the plaintiffs to the filing of the cross-bill. On the contrary, they filed an answer in which they specifically denied every allegation of the cross-bill seeking to assail the validity of the district.
The court below then made an order allowing the de- ■ fendants to make proof on the issues thus raised. Proof was taken, and the case was heard in the chancery court upon the pleadings and the proof made. The court made specific findings sustaining the validity of the organization of the district and specifically dismissed the cross-bill of the defendants for want of equity.
The parties and the court below having all treated the case as a suit to test the validity of the district, it is manifestly unjust for this court on appeal to characterize the case as one brought under the statute solely to collect, assessments. If objection had even been made to the filing of the cross-bill, the case might be different, but we cannot perceive how the case still retains its character solely as a suit to collect assessments under the statute, when both parties by their pleadings made it a suit to test the validity of the district, and the court below so treated it.
The chancery court had jurisdiction of a suit to test the validity of the district, and, the parties having submitted themselves to the jurisdiction of the court in such a suit, and the court below having treated it as a suit to test the invalidity of the district, and having decided the issues thus raised, we think that the statute governing appeals in general should control, instead of the special statute relating to appeals upon proceedings to collect assessments.
Therefore Judge Wood and the writer respectfully dissent.