178 Ind. 661 | Ind. | 1912
Appellees filed their petition in the Warren Circuit Court, praying for the establishment of a public drain through certain described lands located in Warren county. Appellant, with others not named in the petition, appeared at the proper time and filed a general remonstrance against the construction of such drain, under the proviso of §3 of the drainage act of 1907 (Acts 1907 p. 508, §6142 Bums 1908), which requires the dismissal of a drainage petition where a remonstrance is filed, signed by two-
A trial of the issue tendered by the remonstrance resulted in a finding that it was not signed by two-thirds in number of the persons affected, and a judgment that the same should be dismissed. Appellant filed a motion for a new trial, which was overruled. Prom the judgment dismissing the remonstrance, this appeal is prosecuted.
When appellant and others filed their remonstrance they did not institute a proceeding independent of that originated by the petition of appellees. Barnes v. Wagener, supra. The subject-matter of the litigation was the establishment of the proposed drain, and after the remonstrance was dismissed the lower court still had control of that subject-matter, and still possessed the power to dispose of other issues pertaining thereto. Section 6142, supra, expressly requires the court to dismiss the petition, if the commissioners find the proposed drainage impracticable, not of public utility, or that it will cost more than the amount of benefits. In such ease, the error, if any, in having erroneously dismissed such a remonstrance as was filed here, would be rendered harmless to the remonstrators.
When this appeal was taken there had been no order establishing the proposed drain, and appellant, at that stage of the proceeding, was not entitled to a review by this court of the action of the trial court in dismissing the remonstrance.
Appeal dismissed.
Note.—Reported in 100 N. E. 8. See, also, under (1) 14 Cyc. 1044—39 Anno.; (2) 2 Cyc. 586.