133 Ind. 498 | Ind. | 1893
This was a proceeding by way of petition,
The petition was referred to the drainage commissioners, pursuant to the provisions of the second section of said act. On objection by the appellant, to the competency of said commissioners, the order referring the petition to them was set aside, and new commissioners were appointed, and the petition was referred to them. They afterwards reported :
First. That the drainage proposed is practicable.
Secondly. That the drainage, if accomplished, will improve public health, benefit public highways, and be of public utility.
Thirdly. That the costs, damages, and expenses of effecting such proposed drainage will largely exceed the benefits to the owners of the lands likely to be benefited by tlie proposed drainage.
After an unsuccessful motion by the appellants to set aside this report, the same was approved by the court below, and the petition was dismissed pursuant to section 3 of the act of April 6, 1885. Elliott’s Supp., section 1186.
Erom this final order the petitioners appeal to this court, and assign for error these rulings:
The petitioners moved to set aside this report and refer the matter to neiv commissioners, because, first, the report was not verified; second, it does not set out the estimated cost of the proposed work; third, it does not set out the benefits arising from said wprk; fourth, that Cyrus Brake and Gaston Brake, owners of land affected by the proposed drainage, are second cousins to James Pound, one of the new commissioners, and that the petitioners had no knowledge of such relationship until after said Pound was appointed; fifth, that Briggs, one of the new commissioners, while engaged in his duties as such, accepted invitations from 'VVilford Shaw, and dined with him on several occasions while so engaged, the said Shaw owning land affected by the proposed work, and has counsel employed to defeat
The record then recites that “afterwards, to wit, on the -day of Pebruary, 1891, the defendants moved the court to strike out said complaint,” * * * and thereupon plaintiffs gave notice to the court and the defendants of their intention to save, by a bill of exceptions, the questions of law arising on the rulings of the court on said complaint and motion to strike out, for an appeal to the Supreme Court upon a bill of exceptions only of so much of the record as presents said questions of law, as provided by section 630, R. S. 1881; and that afterwards, to wit, on the 31st day of March, 1891, the following further proceedings were had in this cause, wherein the court sustained said motion of defendants to strike out said pleading, to wit: “ Come again the parties, by attorneys, and the court being advised, sustains the motion of the defendants to strike out the complaint of the plaintiffs to set aside the report of the commissioners herein, to which ruling of the court the plaintiffs «except; and thereupon the court now
This recital, and, in fact, the whole of so much of the record in this cause as is brought to this court on this appeal, is embraced in a bill of exceptions.
The appellees insist that no question is presented by the record because the petition for drainage is not embodied therein, and they cite Miller v. Seligman, 58 Ind. 460, in support of that proposition.
That was a case in which the attempt was made to appeal on a reserved question of law, upon a bill of exceptions only, as in this ease. The error complained of in that ease was -a refusal of the trial court to allow the appellant to file a certain answer set out in the bill of exceptions, hut the complaint was not embodied in the bill of exceptions, the case having originated before a justice of the peace. This court said (Justice Niblack delivering the opinion):
“Without the complaint before us in some form, we are unable to judge of either the relevancy or the materiality of the matters alleged in the answer which the appellant asked leave to file; and without the transcript, or an authorized synopsis of it, we are unable here to know what occurred before the justice.” * * “We have no such statement in the record as is necessary to enable us ‘to apprehend the particular question involved.’ ”
It is obvious that the question involved here is whether the trial court made the proper disposition of the objections to the report of the commissioners. Those objections in no way called in question anything contained in the petition, nor did the validity of those objections at all depend on the petition or anything contained in it. It was, therefore, wholly unnecessary to embody the petition in the bill of exceptions. The statute only requires that the “Court shall thereupon cause the hill of exceptions to be so made
In Shugart v. Miles, 125 Ind. 445, this court said concerning this provision, that “ The statute is in furtherance of justice — it is remedial; it tends to simplify procedure; it lightens the burdens of litigants without injustice to any one, and, when properly followed, questions may be presented to this court unclouded by a mass of useless verbiage, and unobseured by voluminous matters of immaterial evidence.”
Accordingly, we hold that only such parts of the record need be embodied in the bill of exceptions, in an appeal of this kind, as will enable this court “to apprehend the particular question involved.” Therefore, it was not necessary to embrace the petition in the bill of exceptions, in order to present the questions reserved.
The first error assigned is “Sustaining the motion of the defendants to strike out the complaint of the plaintiffs to set aside the report of the commissioners.” The paper here referred to as a complaint was a motion to set aside the report of the commissioners, though it is designated elsewhere in the record as .both a motion and a complaint. It has been often held by this eoxxx-t, that the character of. a pleading is not determined by the name ox-designation applied to it by the pleadex-, but is to be deterxnixxed by the contents of the sanxe. Searle v. Whipperman, 79 Ind. 424; Johnson v. Hosford, 110 Ind. 572.
The pleading jn question pxn-ports, iix the body thereof, to be a motioxx to set aside the repox-t of the draiixage commissioners, and to x-efer the petition to new coxxxxxiissionex-s, for the reasons therein stated. It was, therefore, xxothixxg bxxt a motion. Indeed, the drainage act, uxxder which the proceeding was iixstituted, does xxot coxxtexxxplate the filixxg of a complaint to set aside a report of the coxxxxnissioners.
And so we hold that such motion ought not to have been entertained. Indeed, the court ought not to have allowed the same to be filed, and after it was filed, ought, of its own motion, to have stricken it out as a needless incumbrance of the record, because the same relief demanded and the same question raised by it would be afforded and raised by a proper ruling on the other motion.
But the trial court did entertain such motion, and actually sustained it, and the question we have to determine under this assignment of en-or is, was it error to sustain such motion? The answer to that question depends, to some extent, upon what effect the sustaining of such second motion had upon the first motion. It can not be justly said that it had no effect. The court below has treated it as if it had some effect upon the first motion, namely, to strike it from the files. Eor all practicable purposes, it had the same effect as overruling the first motion would have had.
Upon reason, it would seem that if the court sustained a motion to strike out a motion, such act indicates that the court was of the opinion that the first motion was not well taken, and, therefore, ought not to be sustained. It would seem to follow that the trial court, by entertaining the second motion to strike out the first, indicated a purpose and intention to hold that the first motion was not well taken, and ought to be overruled. This precise point was adjudged by the Supreme Court of California in Lang v. Superior Court, 71 Cal. 491. It is there held that sustaining a motion to strike out another motion is equivalent to
It has been held by this court that “where a motion shows on its face a right to the relief it asks, it can not be rejected on the motion of the adverse party.” Johnson v. Moore, 112 Ind. 91. But the question remains, was it error to overrule or reject the motion to set aside the report of the commissioners? That depends on whether the first motion showed, on its face, a right to the relief demanded in it. It is insisted by the appellees’ counsel that, under the authority of Zigler v. Menges, 121 Ind. 99, “ the decision of the commissioners of drainage is analogous to the decision of the common council of a city, upon the question of benefits from the construction of sewers, it is final in each particular proceeding, in the absence of fraud.” But we do not think that case is decisive of this, because the objections to the report here challenge the legality of the report on it face, and the competency of one of the commissioners to act, and charge the commissioners with misconduct in connection with some of the appellees, tending at least to prevent a fair and impartial discharge of the duties of the commissioners. The fourth to seventh grounds of the motion, inclusive, relate to these matters. The truth of these several grounds of objection to the report is not.in anyway established in the record. And the motion being in the nature of a motion
The other grounds are (1) that the repoi’t was not verified; (2) that it does not set out the estimated cost of the proposed work, and (3) that it does not set out the benefits, etc. The truth of these grounds is established by the record. And if they are sufficient in law to overthrow the report, then the motion to set aside the report shows, on its face, a right to the relief demanded in it. Does the statute require the report to be verified and set forth the cost and benefits in a report like this ? "We think not. The statute requires the commissioners “to consider, first, whether the drainage proposed is practicable; secondly, whether, when accomplished, it will improve the public health, or benefit any public highway, * * * thirdly, whether the costs, .damages and expenses, * * * will be less than the benefits. * * * If they find any of these inquiries in the negative, they shall make report of such finding to the court, and thereupon the petition shall be dismissed at the cost of the petitioners. But if they find otherwise, they shall proceed and definitely determine the best and cheapest method of drainage, the termini and route, location and character of the proposed work, and fix the same by metes and bounds, courses and distances and description, including gradés and bench marks, estimate the cost thereof, divide the drain or ditch into sections not more than one hundred feet in length, and compute and set out the number of cubic yards of excavation in each section, assess the benefits or injuries, as the case may be, to each separate tract of land to be affected thereby, and to easements held by railways or other corporations, and make report to the court, as directed, under oath.”
We think it clear that there are two kinds of reports authorized hy this statute. One is where any one, or all, of the three facts essential to support a drainage petition is found in the negative hy the commissioners; and the other is where all three of such facts are found in the affirmative. In the latter sort of a report, among other things, the estimated cost of the work, and the benefits or injuries assessed to each separate tract of land affected thereby must he embraced. In the former, nothing is required to be embraced but the negative finding of any one or more of the three essential facts before mentioned; and in that case, no verification or oath of the commissioners is required in support of such report, inasmuch as they are at all times acting under an official oath. But where the finding is an affirmative one, where the estimated cost of the work and the benefits or injuries to each tract are to be assessed and reported, such report must be made under oath.
It follows from what we have said, that the report in question, being a negative one, was not required by the statute to be verified or supported by an affidavit, and it also follows that such negative report was not required by the statute to contain a statement of the estimated cost of the work, and the benefits or injuries to each tract.
We therefore conclude that there was no error in overruling the motion to set aside the report of the commissioners, which, in effect, was done by sustaining the appellees’ motion to strike out that motion.
The second alleged error is the action of the Circuit Court in dismissing the petition. As the statute required the dismissal of the petition on a report of a negative finding, the Circuit Court correctly followed the statute in dismissing the petition.
Having carefully considered all the errors assigned, and finding no error in the record, the judgment is affirmed.