115 Ind. 549 | Ind. | 1888
On the 24th day of October, 1884, Reuben Hall and six others filed their formal petition in the office of the clerk of the Wells Circuit Court, praying for.the location and establishment of a ditch on a route which is specifically described in the petition. By a notation on the back of the petition, the second day of the ensuing November term was fixed as the day for the docketing thereof. The record shows that proof was made of the posting of notice at the court-house door on the 24th day of October, and that notices were duly posted in three public places in each of the townships in which lands to be affected by the proposed work were situate,
Upon these considerations he moved the court to compel the petitioners to amend their petition.
The court overruled the motion to set aside the notice, and this is complained of as error. It is said, because there was no mention in the notice that a petition had been filed, the case is controlled by the rulings in McMullen v. State, ex rel., 105 Ind. 334, Carr v. Boone, 108 Ind. 241, Deegan v. State, etc., 108 Ind. 155, and cases of that class. These cases hold, in effect, that under the drainage act of 1883 it was necessary that the petition should be filed before giving notice, and that a failure to file the petition until after the giving of notice might be taken advantage of in a direct proceeding on appeal.
The present is unlike the cases referred to, in that in the
The notice given was not in literal compliance with the statute, but it would require a most narrow construction to hold it insufficient. We do not find it necessary, however, •■to decide whether the variance is such as would require a reversal. Making and entering of record a motion to require the petitioners to amend their petition waived any defect there may have been in the notice, and this is so without regard to the fact that the appellant assumed to appear specially in order to make the motion. A special appearance may be entered for the purpose of taking advantage of any ■defects in the notice or summons, or to question the jurisdiction of the court over the person in any other manner; but filing.a demurrer or motion which pertains to the merits of the complaint or petition, constitutes a full appearance, and is henee a submission to the jurisdiction of the court. City of Crawfordsville v. Hays, 42 Ind. 200; 1 Works Pr., sec. 224; Ford v. Ford, 110 Ind. 89, and cases cited.
Whatever conclusion we might have reached, in relation to the validity of the notices, in the absence of the motion which followed, relating to the petition, we are clear that the latter motion waived any defect in the notice, if there were any. As a matter of course, there having been some notice given, all those who are affected by the notice, and who did not appear and question its sufficiency, are now conclusively bound. The principle which governed the decision in Wright v. Wilson, 95 Ind. 408, does not apply.
We find it difficult, on account of the confused condition of the record, to determine satisfactorily whether it presents the questions discussed or not. It appears that the commis
So in Morgan Civil Tp. v. Hunt, 104 Ind. 590, what purported to be a remonstrance’ was filed within ten days. Afterwards, upon discovering that the paper purporting to be a remonstrance was not verified as the statute required, and without showing any excuse for the failure, leave-was asked to file an amended remonstrance. It was held that the leave was rightly refused. These cases hold that the-
The statute requires that the court shall fix a time when the commissioners shall make their report, and the report can not be received except upon the day thus fixed, or upon some subsequent day to which the matter of making the report shall have been continued by order of the court. Munson v. Blake, 101 Ind. 78.
This requirement is to the end that persons whose lands are affected may certainly know when the commissioners’ report is to be made, so that they may remonstrate to the court within the ten days allowed by law. If a party interested or entitled to remonstrate, having shown due diligence, was nevertheless pi'eve'nted from presenting his remonstrance by the fault of the commissioners, or the adjournment of the court, or other circumstances beyond his control, the case would present a question for consideration upon the facts as they might appear. No question of that character is involved here.
Filing the remonstrance in the clerk’s office without presenting it to the court within ten juridical days after the report of the commissioners had been received, there being ample opportunity to do so, was not remonstrating against the report of the commissioners within the meaning of the statute.
Ten days are allowed by the statute within which to remonstrate against the' report, not to file a remonstrance with the clerk. The report of the commissioners, like the verdict of a jury, is made or returned to the court, and a remonstrance,.like a motion for a new trial, or for a continuance, or any other similar motion, must be made to the court.
"Where proceedings or motions are required to be taken or made in a cause during its progress in term time, such motions and proceedings must be presented to the court, and its attention called thereto, and not merely filed in the clerk’s office.
Waiving the objections made by the appellee, in which it is insisted that the record fails to present the questions considered, we have thus arrived at the conclusion that no erroneous ruling is presented.
The judgment is affirmed, with costs.