167 Ind. 73 | Ind. | 1906
This was a proceeding for the construction of a public ditch under the drainage law of 1885 (Acts 1885, p. 129) and amendments, including the act of 1903 (Acts 1903, p. 383). The following appear to be tbe
In addition to the heirs or devisees of Elizabeth Place, other persons who should have been made appellees have been entirely omitted in appellants’ assignment of errors. It is insisted that, by reason of appellants’ failure to make all persons appellees who are necessary as such, we have no jurisdiction to determine the case on its merits, and that the motion to dismiss must be sustained. In this contention we concur. Under the circumstances, had Elizabeth Place been living at the time the appeal was taken she certainly would have been a necessary party appellee. She having died after the rendition of the final judgment in the lower court, hut before the appeal was taken, appellant company should have proceeded under §648 Burns 1901, §636 R. S. 1881, and made as appellees in her place the persons who, under her, will, succeeded to her interest or title in and to the lands which had been assessed for the construction of the ditch. Rich Grove Tp. v. Emmett (1904), 163 Ind. 560, and cases cited.
Under the circumstances, the omission to make parties to the appeal those who succeeded to the interest of Mrs. Place in the lands affected by the proposed ditch, leaves the matter of the appeal in the same condition as it would have been had she been living at the time it was taken and appellant had failed to make her a party appellee.
Eor the reasons urged, the motion to dismiss is sustained and the appeal herein is dismissed.