19 Ind. App. 626 | Ind. Ct. App. | 1898
— The only assignment of error argued by counsel is in the following form: “The court erred in sustaining the demurrers to first and pecond paragraphs of answer of the board of commissioners of Hendricks county.”
This assignment, it has been held, is joint, and does not present for review the ruling as to the sufficiency of each of the paragraphs severally, but only raises the question as to the sufficiency of the two paragraphs jointly considered. If either' paragraph be bad, the assignment is unavailing. Ketcham v. Barbour, 102 Ind. 576; State, ex rel., v. Faurote, 104 Ind. 287; Noe v. Roll, 134 Ind. 115; Houk v. Hicks, 11 Ind. App. 190; Crist v. Jacoby, 10 Ind. App. 688; Everett v. Farrell, 11 Ind. App. 185; Williamson v. Brandenberg, 6 Ind. App. 97.
By a statute of 1889, Acts 1889, p. 53 (section 5632 et seq., Burns’ R. S. 1894; 4284a et seq., Horner’s R. S. 1897), it was made the duty of the county surveyor to make allotments of shares or portions of ditches or drains, constructed under and by virtue of any law of this State, to landowners and others designated, to be by them, cleaned out annually and kept in repair. By section 3 of said act, the surveyor was required to reduce the allotments to writing and to record them in the drainage record, and thereupon to cause, to be posted up notices of the place where and the time when he would hear all objections to the allotments, a form of notice being set forth in the statute. Provision was also made in said third section for service of a copy of such notice, as summonses are served, upon each resident owner or occupant of land and others designated. By the fourth section, the surveyor was
The complaint in the cause before us was in the form of such a report to the county auditor, for itemized services rendered by the appellee in writing notices and hearing objections and making records .for confirming ditch allotments, it being therein stated that such services were rendered under and pursuant to said act of 1897. The report was subscribed and sworn to by the appellee as surveyor of said county, and was disallowed by the appellant.
The appellant, in its second paragraph of answer, alleged, in substance, that the appellee’s claim with each item thereof, was for services claimed to have been rendered the county in writing notices and hearing objections and making records for confirming ditch allotments for divers ditches mentioned and
We cannot regard this paragraph of answer as sufficient. It shows that the notice of the time and place for hearing objections to the allotments was served only by posting up, and admits the failure to make personal service thereof, which the act of 1889, as held in Beatty v. Pruden, supra, required. The answer, relying upon the proceedings of the county surveyor, fails to show by the averment of facts that they were valid and binding. It fails to show that the county surveyor who made the allotments pursued the mode prescribed by law for acquiring jurisdiction. Therefore, the answer does not show that the condi
We are of the opinion that the county surveyors were not required or authorized by the act of 1897 to perform the services therein mentioned in any instances where such services were not needed to validate allotments and thereby to effect the cleaning out and repairing of drains in the manner provided for by statute. If a county surveyor, acting under said statute of 1889, besides giving notice by posting, caused copies of the notice to be served personally upon some of the parties to be affected by the allotments, but not upon all of them, and if he in other respects complied with, the statutory requirements, those who were so personally served would not be released from the obligation to clean out and repair their allotted portions because of the failure so to serve other parties. So, also, if a person not personally served, in such supposed case, made full appearance by presenting himself at the time and place fixed for hearing objections and jiresenting his objections, and all proceedings contemplated by the statute, by and toward him, were had, the object of the personal notice would, as to him, have been accomplished, and as to him the surveyor would have acquired jurisdiction, and the surveyor’s proceedings as to such appearing party, therefore, would not be void.
In such cases, where the personal service or the full appearance could be properly shown in the manner required for the showing of the jurisdiction of such an inferior tribunal of limited specified authority, the act of 1897 did not, we think, contemplate rendering the
The appellee’s claim was in the form prescribed by the statute, and the second paragraph of answer did not show a defense to the claim. The judgment is affirmed.