181 Ind. 183 | Ind. | 1914
This was a proceeding for the establishment of a ditch upon the petition of appellees, to which the appellant and others were made parties. To this petition the appellant, before the appointment of viewers, filed a remonstrance, to which the court sustained a motion to dismiss and strike out on the grounds that it was prematurely filed. After the report of the viewers, the appellant again filed practically the same remonstrance, with other statutory reasons for remonstrance. The part of the remonstrance, which appellant claims the court erred in excluding, and which was afterwards filed as a remonstrance, and which it is claimed deprived the court of jurisdiction to construct the drain in question is as follows: “That heretofore in the year 1903, by certain proceedings had in the court of the Board of Commissioners of Vanderburgh County, Indiana, a certain tile drain was constructed through said property over which said drainage described in the commissioners’ report is to pass, along almost the identical line of said proposed drainage, which is the same drainage; that said tile drain was constructed at large expense for the payment of which the lands drained were assessed as benefited and that appellant’s lands were in that proceeding assessed
An issue was formed on the petition, the report of the viewers and the remonstrance filed by appellant, and submitted to the court for trial. The court found for the petitioners and confirmed the report of the viewers, with minor exceptions, and ordered the drain constructed as prayed in the petition. The appellant moved for a venire de novo, which was overruled. A motion for a new trial was filed on the part of appellant, which was also overruled.
The assignment of errors presents three propositions, viz., (1) the court erred in sustaining the motion to strike out the remonstrance filed before viewers were appointed; (2) that the court erred in overruling appellant’s motion for a venire de novo; (3) the overruling the motion for a new trial.
As to the first proposition, we are inclined to think that there is no reversible error in striking out the remonstrance above set out, for it was a plea questioning the jurisdiction of the court to the subject-matter of the litigation, and might have been properly termed a plea in abatement, and could have been filed at any stage of the proceedings, even in this court. The appellant was not deprived of any right he might have had under such plea for he was permitted to and did file to the report of the commissioners, the same plea to the jurisdiction of the court, which was properly a plea in bar. Quick v. Parratt (1906), 167 Ind. 31, 78 N. E. 232. This remonstrance, or plea in which the jurisdiction of the court to construct the drain, was questioned, was submitted to the court, with the other causes of remonstrance, and the court’s finding was against the remonstrator on that issue as well as all others.
Appellant contends that O’Toole v. Tudor (1910), 175 Ind. 227, 93 N. E. 276, is decisive of the question that a proposed new drain cannot be established over the line of an old drain by a different tribunal from the one in which the original drain was established. That was a proceeding before the board of commissioners to tile an open drain, and this court held under the act of 1907, that it could only be brought in the court which had constructed the original drain. To the same effect are the cases of Rinker v. Hahn (1910), 175 Ind. 88, 92 N. E. 729; Stockton v. Pancost (1912), 178 Ind. 203, 98 N. E. 122; Shields v. Pyles (1913), 180 Ind. 71, 99 N. E. 742. These latter cases were for the change of existing drains from open to
The other questions presented by the appellant, by his motion for a new trial, relate to the sufficiency of the evidence to sustain the finding of the court and the admission and rejection of certain evidence. We have examined the record and find some evidence on every proposition submitted, and under the well-established rule that this court cannot weigh the evidence, we are not justified in disturbing the finding of the court. There was no reversible error in the admission or rejection of evidence. Judgment affirmed.
Spencer, J., not participating.
Note. — Reported in 104 N. E. 11. See, also, under (1) 14 Cyc. 1036; (2) 38 Cyc. 1990; (4) 14 Cyc. 1051; (6) 3 Cyc. 360.