156 Minn. 95 | Minn. | 1923
Certiorari in review of proceedings had in the district court of Freeborn county for the establishment of Judicial Ditch Number 6 of that county.
The proceedings were initiated by proper petition filed with the clerk of the district court on November 26, 1921. Following which, as provided by G. S. 1913, § 5526, as amended by chapter 441, p. 692, Laws 1917, an engineer was duly appointed by the court with directions to examine into the proposed improvement and make report upon the questions of the practicability and utility thereof; proposing or suggesting .such changes in the plans outlined by the petition as he deemed essential, and reporting also all pertinent facts necessary to advise the court otf the advisability of laying the proposed drain. The report was subsequently made and filed,
Upon the report of the viewers coming in, a final hearing was ■ appointed to be held on August 14, 1922, notice of which was duly given to interested parties. The parties again appeared personally and by counsel, and, at the conclusion of the hearing, and on September 18, 1922, the court made its order adopting the report of the engineer, confirming the assessment of damages and benefits, and formally declaring the ditch established by the completion of the proceedings so adopted and approved. Certain property owners who appeared in the proceedings in opposition to the improvement thereafter applied to this court, on October 24, 1922, for a writ of certiorari in review of that order. The writ was granted, and thus the cause comes here (for review as authorized by statute.
Prior to the amendment of the drainage statutes by chapter 441, p. 692, Laws 1917, the practice in such proceedings was the reverse of that here followed, and questions of propriety, necessity and public benefit were all determined on the last or final hearing. Heinz v. Buckham, 104 Minn. 389, 116 N. W. 736. But by that
That conclusion removes from consideration on this review all questions involving the propriety, necessity and public utility of the proposed ditch. All thereof were decided and determined by the findings and order of the court on the first hearing. That was a final order as respects those questions to; be challenged, if deemed erroneous, only by certiorari sued out in review of that particular order.. The order cannot be reviewed as here attempted in cer-tiorari-to the final order confirming the assessment of damages and benefits and formally declaring the improvement established. The first order becomes immune from attack when not directly challenged within the time prescribed by G. S. 1913, § 8313. It was not here so challenged.
This covers the case and all that need be said in disposing of the questions presented. The final hearing was conducted by the judge of the Thirteenth judicial district. The proceedings were pending in Freeborn county in the Tenth judicial district. It is objected that the judge of Thirteenth district was without authority to hear or determine the cause. The point is not sustained. In the absence of an affirmative showing to the contrary it will be conclusively presumed that the judge of the Thirteenth district was called in to hear the matter as authorized by G. S. 1913, § 147.
The further point that the proceedings in this matter should have been stayed until the costs of the prior proceeding had been paid
Order affirmed.