168 Ind. 582 | Ind. | 1907
Under the drainage act of 1885 (Acts 1885, p. 129, §1, §5622 Burns 1901) as amended in 1903
“The undersigned landowners, whose lands are reported as affected, respectfully remonstrate against the report of the drainage commissioners herein, for the following reasons: * * * Third. That it will not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits to the lands reported affected thereby.”
The first and second grounds of remonstrance are omitted because the first was dismissed and the second found by the court in favor of appellant, and hence he could not have been injured by any ruling of the court on its sufficiency. The remonstrance was filed on June 3, 1905. On September 4, 1905, appellant filed a motion to strike out the remonstrance, and on October 10, 1905, appellees, without action by the court on the motion to strike out, moved for leave to amend the remonstrance (so far as here material) by inserting in the second introductory line, after the word “affected,” the words “separately and severally,” so as to make it read thus: “The undersigned landowners, whose lands are reported as affected, separately and severally respectfully remonstrate,” etc. The court, over appellant’s objection, permitted the amendment to be made, which action of the court presents the principal question arising in this appeal. There was a trial by the court upon the third ground of remonstrance, and a finding and judgment for the remonstrants, and the proceeding was dismissed.
Did the court err in permitting such amendment % The statute (§5625 Burns 1901, Acts 1885, p. 129, §4) provides that ten days, exclusive of Sundays, shall be allowed to any owner of lands affected by the work proposed to remonstrate against the report of the commissioners, and the
In support of his position appellant cites Hays v. Tippy (1883), 91 Ind. 102, wherein this court, by Howk, J., speaking of an objector’s application to file a remonstrance after the expiration of the time allowed and which filing had been delayed by personal illness, said: “We are of the opinion that the provision of the civil code [for relief against judgments] is wholly inapplicable to such a proceeding as the one under consideration.” To the sainé effect see Dukes v. Working (1884), 93 Ind. 501, by the same justice. It is said in the former opinion that a drainage proceeding is in no proper sense a civil action, and that recourse to the civil code can only be had when granted by the special statute. But it is manifest from subsequent decisions, as we shall hereafter see, that the court has receded from the narrow grounds here stated.
In the case of Gilbert v. Hall, supra, it was held that the lodging of a remonstrance with the clerk, in his office, during a recess of the court, without request that it be filed, and without calling the court’s attention to it, cannot, after the lapse of the term, be admitted to the- files as a statutory remonstrance. These cases rest upon the principle that an amendment must have something substantial to support it. There must be something to amend by. A paper which lacks some essential statutory element, and therefore, good for nothing as a remonstrance, cannot be made a remonstrance, by amendment, after the end of ten days from the time of filing of the commissioner’s report.
Judgment affirmed.