121 Ind. 447 | Ind. | 1890
— Wallace and Emily Hight instituted this proceeding to enjoin the defendant, Claman, as treasurer of Monroe county from collecting certain assessments theretofore levied upon the lands of the plaintiffs, in order to defray the expense of constructing a free turnpike.
The only question presented is whether or not an appeal taken by one land-owner deprived the board of commissioners of jurisdiction to proceed with the construction of the road, and rendered its proceedings pending the appeal void, not only as respects those who appealed, but as to all others concerned.
The proceedings were instituted under the act of 1877, which remains in force notwithstanding the later act of April 8th, 1885, which relates to the same subject. Robinson v. Rippey, 111 Ind. 112; Board, etc., v. Fullen, 111 Ind. 410.
It is settled as a general proposition that where an appeal lies from an inferior to a superior tribunal, a perfected appeal suspends all further proceedings, where the matter appealed is to be tried de novo on the original papers.' Platter v. Board, etc., 103 Ind. 360 (375); Meehan v. Wiles, 93 Ind. 52.
It has been held that the statute authorizing appeals from the decisions of boards of commissioners was applicable to and authorized an appeal in proceedings under the act of 1877, relating to free turnpike roads. Fleming v. Hight, 95 Ind. 78; Fleming v. Hight, 101 Ind. 466. *
An appeal, however, under the act in question does not suspend or supersede the proceedings except so far as they relate to the persons who appeal. This is plainly apparent
The whole tenor and purpose of the above section is to prevent one person, in respect to whom the proceeding may be defective, from interrupting the progress of a work in which a whole community may be interested. The appeal of one or more of those interested simply suspends the proceedings- in respect to those who appeal, while as to all the others the judgment from which no appeal is taken remains unaffected.
It does not appear that there was any error in the proceedings before the board of commissioners which in any way affected the rights of the plaintiffs in this action, and simply because some other person appealed, and had the assessment vacated as to him, this in no wise suspended or superseded the assessments made against those who did not appeal. The distinction between the present case and Fleener v. Claman, 112 Ind. 288, lies in the fact that in the case cited it had been adjudged on an appeal taken by two persons interested, that the petition had not been signed by the required number of land-owners, and that the whole proceeding was therefore void because the board acquired no jurisdiction, while in the present case it merely appears that an appeal had been taken by two of the land-owners. It does not appear that the question involved in the appeal, or that the judgment subsequently rendered, affected any other persons than