Leffel v. Obenchain

90 Ind. 50 | Ind. | 1883

Best, C.

— The 'appellant filed a petition before the board of commissioners of Cass county for the location of a highway. Viewers were appointed, who reported in favor of its-public utility, after which nine persons, each of whom owned land through which the road runs, filed separate remonstrances on the ground that the highway would not be of public utility, and that each would sustain damages by its location. Eeviewers were thereupon appointed, who reported in favor of the public utility of the road, and assessed damages in favor of each remonstrator. Each then appealed to the circuit court by filing his bond, with one of the other remonstrators as his surety. Separate transcripts were made and separate cases docketed in the circuit court. These were ordered consolidated, after which the appellants moved to dismiss the appeal on the ground that an appeal bond had not been executed with surety as required by statute. This motion was overruled, the cause tried, the road adjudged to be of public utility, and a larger amount of damages assessed to each remonstrator, after which the record recites that an unavailing motion was made by the appellants to tax costs.

The refusal of the court to dismiss the appeal and to tax costs are assigned as error.

The motion to dismiss the appeal proceeds upon the assumption that there can be but one appeal in these proceedings, to which all appellants must be parties, and as no other person signed any bond in this case, as a surety, there is, therefore, no surety upon the appeal bond, as required by, statute. In support of this position appellants rely upon the eases of McVey v. Heavenridge, 30 Ind. 100, and Scotten v. Divelbiss, 46 Ind. 301. Neither of these cases supports them. In McVey v. Heavenridge, supra, it does not appear that the land affected by the location of the highway was not jointly owned by the appellants. It does appear that they filed a petition asking for the assessment of damages, and after this was refused they joined in an appeal bond without a surety. For this reason the appeal was dismissed. If they owned the land jointly or as tenants in common, they were required to unite in a remonstrance, and, in order to appeal, to execute a bond, with some other person as surety.

In Scotten v. Divelbiss, supra, the appellants remonstrated. For what cause does not appear; presumably, because the highway would not be of public utility. They appealed without surety and without the auditor’s approval of their bond, and for these reasons the appeal was dismissed. If they united in a remonstrance they could not appeal without giving bond w-ith surety as required by statute, and hence the appeal was properly dismissed.

Neither of these cases holds or intimates that a person whose lands are affected by the location of a highway, and who has remonstrated, asking damages, may not himself appeal, without uniting with others who may have remonstrated in such proceeding either because the road is not of public utility, or because he has been damaged by locating such highway through his lands. In such case we know of no reason why any person who has filed his remonstrance because of damages sustained by him may not appeal, and if more than one person have filed separate remonstrances, for such cause, we know of no reason why each may not appeal from the order made upon their respective l’emonstrances. In this way only can they assert their respective rights. The appeal of one does not vacate the order made in relation to another, but in order to do so the person affected by the order must appeal. If A. is allowed $100 damages, and B. appeals from the order made for or against him, such appeal will not vacate the order in favor of A. The order in favor'of each is in the nature of a judgment, and can only be vacated by an appeal taken by the person in whose favor it is made, or by the opposite party. In this respect these proceedings are very analogous to attachment proceedings, where creditors file their claims under the original proceeding. For some purposes such proceedings constitute but one suit; while for other purposes they constitute separate suits. Henderson v. Bliss, 8 Ind. 100.

So proceedings to establish a highway, when several remonstrators file separate remonstrances for the damages sustained by each of them, constitute a single suit for some purposes; while for others they constitute separate suits. An issue formed by A. as to his damages affects him and the petitioners alone. No other remonstrator is interested in it, and no appeal from an order awarding or refusing . another remonstrator damages can affect it. This must, in the very nature of things, be so when the remonstrance is for damages alone. The remonstrances in this case were not for damages alone, but for damages and for want of public utility. Both causes may be embraced in the same remonstrance. Butterworth v. Bartlett, 50 Ind. 537; Peed v. Brenneman, 72 Ind. 288. The union of these two causes in the remonstrances does not, in our opinion, change the character of the issue as to damages. This can not affect any one except the remonstrator and the petitioners, and it, therefore, tenders a separate, issue. The trial of such issue may affect an award made to some other remonstrator for damages, but it will not necessarily do so. If, upon the trial of such issue in the circuit court, the road is found not to be of public utility, the judgment would probably annul every allowance for damages, whether an appeal had been taken from such allowances or not, but if found to be of public utility, allowances unappealed from would be unaffected, and, hence, such remonstrance must be regarded as tendering a separate issue. If separate, a party who is dissatisfied with his allowance must appeal in order to have the question re-tried in the circuit court. For these reasons, we think each remonstrator could appeal from his allowance, and that his bond was not bad simply because signed by some other remonstrator as surety.

Neither the motion to tax costs nor the ruling of the court thereon is preserved by a bill of exceptions, and hence the record presents no question in relation thereto.

There is no error in the record, and the judgment should be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be, and it is hereby, in all things affirmed, at the appellants’ costs.