Kramer v. Fishback, No. 22,020

No. 22,020 | Ind. | Oct 7, 1913

Spencer, C. J.

This is an appeal from the judgment of the Spencer Circuit Court, rendered on May 3, 1911, establishing a certain drain in Luce and Ohio townships in Spencer County, under §6140 et seq. Burns 1908, Acts 1907 p. 508.

1.

The petition was filed on May 8, 1907, service had and notice given. On September 2, 1907, the petition was regularly docketed as an action pending. On September 18, 1907, all of the appellants appeared to said action and filed a remonstrance against the construction of such drain. On January 24, 1910, appellants filed a motion to dismiss the action because of alleged defective notice. This motion was overruled and appellants now charge error in such ruling. Having all appeared on September 18, 1907, and filed their remonstrance, appellants were in no position on January 24, 1910, to insist that the notice was defective. Notice may be waived and is always waived where there is an appearance. Appellants had joined in a remonstrance against the establishment of the drain and the levying of the assessment. This was an appearance. Pittsburgh, etc., R. Co. v. Hodge (1911), 175 Ind. 669" court="Ind." date_filed="1911-03-15" href="https://app.midpage.ai/document/pittsburgh-cincinnati-chicago--st-louis-railway-co-v-hodge-7056075?utm_source=webapp" opinion_id="7056075">175 Ind. 669, 671, 94 N. E. 324, and cases cited. Sunier v. Miller (1886), 105 Ind. 393" court="Ind." date_filed="1886-02-11" href="https://app.midpage.ai/document/sunier-v-miller-7048243?utm_source=webapp" opinion_id="7048243">105 Ind. 393, 4 N. E. 867.

2.

It is next contended by appellants that the trial court erred in overruling their motion to dismiss “the report of said drainage commissioners filed on the 13th day of May, 1910, and the petition herein filed and the proceeding in this cause,” for the reason that the drainage commissioners did not file their report on April 4, 1910, the date fixed by the court for the filing thereof. This motion was overruled and the report of the commissioners was, by the court, referred back to them and they were directed to refile their report on September 26, 1910, which was done. "We can see no error therein which was harmful to appellants. The failure of the commissioners to perform their duties should not work to the prejudice of the petitioners. Bohr v. Neuenschwander (1889), 120 Ind. 449, 454, 22 N. E. 416. And especially should this be the rule ivhere there is no affirmative showing that such failure on the part of the commissioners was caused by appellees or was harmful to appellants.

3.

Appellants further contend that reversible error was committed in overruling the motion of the remonstrators to “dismiss the report of the commissioners and the proceedings” for the reason that the “report was not made to the court on September 26th, 1910, as ordered by the court.” The record as to this matter is as follows: “Come now the drainage commissioners in the above entitled cause, on this 26th day of September, 1910, and file their report herein, as heretofore ordered by the court, which report is favorable and recommends the construction of said drain.” It was insisted by appellants that the report of the commissioners was not filed with the clerk nor presented to the court. Evidence of witnesses was heard on this question and the court concluded that the report was properly filed on the date mentioned. In the face of this record we can not uphold appellants’ contention.

Note. — Reported in 102 N. B. 831. See, also, under (1) 14 Cyc. 1035; (2) 14 Cyc. 1045; (3') 3 Cyc. 152; (4) 2 Cyc. 1014.

4.

Error is also assigned in the overruling of appellants’ motion for a new trial but no question is here presented by such assignment, for the reason that neither the motion for a new trial nor the substance thereof is anywhere set out in appellants’ brief.

Judgment affirmed.