148 Ind. 224 | Ind. | 1897
A part of the appellees were the petitioners in the circuit court for the construction of a certain drain in Marion county, under the act approved April 6, 1885, providing for the institution of proceedings in the circuit court for the construction of such drains.
The petition was referred to the drainage commissioners. Due notice was given of the docketing of the petition, and within the time provided, the court ordered the same placed on the docket of said court as an action pending. The court referred the same to the drainage commissioners. Said drainage commissioners met at the time and place ordered and fixed
Nearly three years after the drain had been estab: lished and nearly two years after the drainage commissioner had reported that the drain was partially completed, and after the drain had been completed, the appellant filed what her counsel calls an intervening-petition asking for an allowance for damages done to her land, alleging therein that the drain as it turned out did not benefit her lands any, and that it damaged it in a large amount. It is not denied that she was duly notified of the proceeding, and had had her day in court; but it is alleged that at that time she was unable to discover that the proposed drain would not only not benefit her land, but on the contrary would cause great injury thereto.
The circuit court sustained the appellees’ motion to strike said petition from the files. This action of the circuit court is called in question by the assignment of errors as the only alleged error complained of.
It is contended by the appellees in support of the ruling of the trial court, that the so-called interven
This decision is as clearly against appellant as it can be. If the judgment establishing the ditch and ordering its construction is a final judgment which terminates the adversary proceedings, certainly thereafter there can be no assessment of benefits or damages, for such assessments belong to the adversary part of the proceedings. If it remains on the docket only for the purpose of carrying into effect the judgment actually rendered, and not for any action of modifying or changing that judgment, then the case was not on the docket for the purpose of awarding damages to the .owners of the land through which the drain passes and who had had their day in court. It is provided in the third section of the act (section 5624, Burns’ E. S. 1894) that the drainage commissioners to 'Whom the court refers the petition “shall make personal inspection of the lands described in the petition, and all other lands likely to be affected by the proposed work; and consider: First, whether the drainage proposed is practicable; second, whether, when accomplished, it will improve the public health or benefit any public highway in the county or streets of a town
The next section provides among other things, that persons whose lands are assessed as benefited may remonstrate, among other reasons, on the ground that their lands are assessed too much as compared with other lands assessed as benefited or damaged, that other tracts specifying the same are assessed too' low according to the benefits likely to be received; and by any person whose lands are assessed as benefited, that the same will not be affected, nor benefited to the extent of the assessment by the proposed work if accomplished; .by any person whose lands are assessed as damaged, that the damages assessed are inadequate, and by any person whose lands are reported as benefited, that his lands will be damaged by the construction of the proposed work. It is further provided in the same section, among other things, that: “If the finding and judgment of the court be against the remonstrance or remonstrances, * * * the assessments made by the commissioners shall be confirmed and the order of confirming shall be final and conclusive.”
If it were not so provided then at any and all times
There was, therefore, not only sound reason for the holding in the case from which we have quoted above, to the effect the case only remains on the docket for the purpose of carrying into effect the judgment rendered and not for any action modifying or changing that judgment, but the statute makes it imperative on the court so to hold.
Because, if the action invoked by the so-called intervening petition can be taken, the whole judgment may be defeated in the way above indicated.
The whole statute forbids such a construction.
But it is contended that the appellant filed no remonstrance, and, hence, the matters she now seeks to litigate have never been litigated.
A remonstrance as provided for in the statute is in the nature of a defense, and it is settled that a defense which a party might have made, and did not make or present until after judgment, is as much barred by the judgment as if he had made it and been defeated. Ballard v. Franklin Life Ins. Co., 81 Ind. 239; Fischli v. Fischli, 1 Blackf. 360; Griffin v. Hodshire, 119 Ind. 235.
In the latter case it was said at page 243 that: “Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect to matter which might have been brought for
The meaning of which is that as long as the judgment stands they are concluded, and that under special circumstances in such cases they may be permitted to open up the subject of litigation.
It is not necessary to decide whether in such a case such a judgment can be opened up, because that was not what was asked for in the case now before us.
It was asked to go into the question of appellant’s damages, and leaving the judgment to stand; her only excuse for not bringing that subject forward at the proper time to remonstrate, is that she could not then see that the proposed ditch would damage her land. She, however, is in no better condition than if she had remonstrated for damages and for want of benefits, and been defeated. Had she done so, she could not now come forward and file a new remonstrance on the ground that the drainage commissioners had made a mistake in failing to assess damages to her land. That is substantially what she is asking to do.
The court did not err in striking the petition from the files.
The judgment is affirmed.