398 N.E.2d 570 | Ohio Ct. App. | 1978
On October 5, 1976, the Joint Board of County Commissioners of Wood and Sandusky Counties entered a final order for the improvement of Joint County Ditch No. 2365. On October 26, 1976, Elmer Bomlitz posted bond and filed the requisite statement of appeal with the county auditor raising all permissible grounds of appeal. The appeal and transcript were actually filed in Sandusky county Common Pleas Court on December 14, 1976. On January 6, 1977, such court granted Richard L. Depner's motion to join the appeal as a party defendant. A judgment entry file stamped March 24, 1977, acknowledges Mr. Bomlitz's pretrial settlement with the Commissioners, dismisses with prejudice all but the damage claim in Mr. Bomlitz's appeal and, after stating that there is no reason for delay, orders completion of the ditch. The court's nunc pro tunc judgment entry, file stamped April 11, 1977, is identical to the March 24, 1977, entry except that the later entry deletes a sentence referring to the assessment of costs. On June 16, 1977, the *411 appellants herein, landowners filed a motion to join the appeal in the Common Pleas Court under the bond and statement of Elmer Bomlitz and raised all of the issues Mr. Bomlitz raised in the initial statement of appeal. Appellants also filed a motion for a preliminary injunction on June 16, 1977, and a motion for a temporary restraining order on June 21, 1977, both of which sought to halt any further work or construction on Joint County Ditch No. 2365. By a judgment entry dated November 28, 1977, the Common Pleas Court denied appellants' motion to join on the grounds that the matters were previously determined and the appellants' motion for joinder was not timely, and they timely appealed to this court.
The first and second assignments of error are as follows:
"The denial by the trial court to permit appellants to join the proceedings herein below is contrary to law.
"The judgment entries filed in the case below on April 11, 1977 and March 24, 1977 are contrary to law and exceed the jurisdictional authority of the court."
We find both assignments well taken. R. C. Chapters 6133 and 6131 provide special procedures for the hearing, the determination and the appeal in cases involving Joint and Single County Ditches. All rights of appeal and other rights and remedies provided in R. C. Chapter 6131 for single county ditch matters are also applicable to joint county ditch matters. R. C.
"(A) Is the improvement necessary?
"(B) Will the improvement be conducive to the public welfare?
"(C) Is the cost of the improvement greater than the benefits conferred?
"(D) Is the route, termini, or the mode of construction the best to accomplish the purpose of the improvement?
"(E) Are the assessments levied according to benefits?
"(F) Is the award for compensation or damages just?"
R. C.
We conclude that because the original notice of appeal included all matters which were appealable pursuant to R. C.
"After an appeal has been perfected by any owner, any other interested owner by motion, oral or in writing, may by order of court be entered on the record as jointly interested with the appellant."
While the use of the word "may" normally connotes a vesting of discretion in the court, the exercise of which cannot be disturbed on appeal absent an abuse of that discretion, other provisions in R. C. Chapter 6131, most notably R. C.
"An appeal shall bring into court all the owners who in any way may be interested in or affected by the matter appealed." (Emphasis added.)
The same section further provides with reference to appeals from the Common Pleas Court to the Court of Appeals:
"The court * * * shall make such judgment, order, or decree as is warranted by the evidence. Any owner aggrieved by such judgment, order, or decree may file a bill of exceptions and may appeal for a review of said proceedings, the same as in other civil cases. * * *"
This language is a clear expression of legislative intent to allow all landowners interested in a specific ditch to become a part of the appeal process whether or not the landowner actually filed or joined the initial appeal to the Common Pleas Court.Cf. 18A Ohio Jurisprudence 2d 271, Drainage, Section 133. Thus, appellants herein were automatically made a part *413
of Elmer Bomlitz's appeal through the operation of law. R. C.
It is true that all but one of the issues appellants sought to raise in Elmer Bomlitz's appeal were dismissed with prejudice by judgment entries of the court filed before appellants' motion for joinder. Nonetheless, the manner of the dismissal, the absence of a de novo hearing in the Common Pleas Court, and retention of the damage claim by that court compels the conclusion that appellants herein can properly join the appeal and put before the Common Pleas Court all issues jointly raised by Elmer Bomlitz's appeal statement and appellants' motion for joinder.
R. C.
In the instant case, no evidence was taken and no trial was had. The first four paragraphs of Elmer Bomlitz's appeal — which challenged the necessity of the improvement, questioned whether its cost outweighed the benefits conferred, and raised the issue of whether the mode and route were the best to accomplish the purpose of the improvement — were dismissed prior to trial, without a hearing. The court's judgment entries separated those aspects of Elmer Bomlitz's appeal from the damage claim over which it retained jurisdiction, and through that separation attempted to make a determination which was final for purposes of proceeding *414
with the ditch construction and foreclosing any further challenge to the Commissioners' decision. This, the court was without power to do. So long as the damage claim was pending, the appeal was not finally determined and remained open on all issues raised. R. C.
Therefore, the judgment entries of March 24 and April 11, 1977, did not and could not finally determine the appeal. Thus, these entries could not operate to foreclose appellants' rights to join the appeal nor could they vest power in the Commissioners to begin the letting of contracts or in the engineers to commence the actual construction of the ditch. Upon remand, appellants must be permitted to join the appeal and to raise all issues initially raised in Elmer Bomlitz's appeal statement.
Appellants' other assignments of error do not appear on the record before us and were never raised in the court below. These matters are not properly before this court and should be raised, if at all, in the trial court upon remand.
Judgment reversedand cause remanded.
POTTER, P. J., BROWN and WILEY, JJ., concur.
WILEY, J., retired, was assigned to active duty under authority of Section 6 (C), Article IV., Constitution. *415