174 Ind. 245 | Ind. | 1910
This proceeding was commenced by appellees before the Board of Commissioners of the county of Delaware, under §§7712, 7719 Burns 1908, Acts 1907 p. 137 and p. 68, §1, for the improvement of a public highway less than three miles in length over which a rural United States mail route passed. Such proceedings were had that said board of commissioners ordered the construction of said road without submitting the question of building it to an election of the voters of the township concerned, as provided in §7719, supra. Prom this judgment appellants Isanogle and McKinley appealed, and filed their appeal bond. Appellants Ellison and Rudy also appealed, and filed their appeal bond. Appellees filed motions to dismiss said appeals. Afterwards appellants filed a motion to dismiss said cause. On the same day the venue of said cause was changed to the court below, which court overruled appellants’ motion to dismiss said cause, sustained appellees’
The errors assigned by appellants and not waived are as follows: (1) The court erred in overruling appellants ’ motion to dismiss said cause; (2) the court had no jurisdiction over the subject-matter of the cause; (3) the court erred in sustaining appellees’ motions to dismiss said appeals; (4) the court erred in directing the court to certify said cause back to the board of commissioners of Delaware county.
The record of the proceedings before the board shows that said application of certain petitioners to withdraw from said petition was presented to and filed with the board of commissioners after said board had ordered the construe
It is clear that the presenting and filing of said application to withdraw from said petition after the order of the board for the construction of said work had been announced, did not oust the jurisdiction of the board of commissioners, because, as shown by the record, that had attached before said application was presented to and filed with the board. Little v. Thompson (1865), 24 Ind. 146, 150, 151; Osborn v. Sutton (1886), 108 Ind. 443; Green v. Elliott (1882), 86 Ind. 53, 60; Cason v. Harrison (1893), 135 Ind. 330, 334-336, and cases cited; Ney v. Swinney (1871), 36 Ind. 454, 462.
Judgment affirmed.