177 Ind. 471 | Ind. | 1911
In November, 1903, John A. Kunkalman and others filed in the Noble Circuit Court their petition for a public drain, under the circuit court drainage act of 1885, and its amendments (Acts 1885 p. 129, §5622 et seq. Burns 1901).
Objection was made to the appointment of the Noble county drainage commissioner and county surveyor, as commissioners in the proceeding, because of disqualifications, and the objection was, by the court, sustained, and the court thereupon appointed appellants John W. Moorhouse, John A. Jennings and Charles W. Bender as drainage commissioners for the proceeding, and referred the petition to them, as provided for in the act, and ordered them to meet on February 8, 1904, and to commence the performance of their
Certain interested parties filed verified pleas, challenging the jurisdiction of the court to proceed further, based on the ground that the construction of the drain would affect several fresh-water lakes, each containing more than ten acres. Such proceedings were had thereupon as resulted in a judgment dismissing the petition for want of jurisdiction. From this judgment the petitioners appealed to this court, and the judgment below was affirmed. Kunkalman v. Gibson (1909), 171 Ind. 508, 84 N. E. 985, 86 N. E. 850. Appellants here were not parties to the proceeding. No allowance was ever made to appellants for their services as commissioners, engineer, ehainmen, etc., but, in the report, such allowances were asked.
“State of Indiana, Noble County, SS. In the Noble Circuit Court, May Term, 1909. In the matter of the petition for drainage by John Kunkalman et al. No. 4566.”
The above was the title and number of the original proceeding instituted by the petitioners for the drain.
The court sustained appellees’ motions to strike out and dismiss, and final judgment was rendered against appellants, from which this appeal is prosecuted. Each of the appellants has assigned as error the action of the lower court in striking out his petition for the allowance and taxation of a certain sum in his favor as costs.
Appellees, who were sureties on the drainage petition bond, have filed a separate brief, and claim that in no event was any cause of action stated against them in the several petitions of appellants, and consequently the judgment, as to them, should be affirmed.
The petitions of appellants were all of the same general tenor. Each sets out a brief history of the proceeding, and alleges that a certain number of days of' service was performed by the petitioner, the kind of service rendered, and the amount due petitioner; that said facts were set forth
At the outset, it is claimed by appellees that no question is presented to this court for decision, on account of alleged defects in the assignments of error caused by the failure to set forth the title of the cause and the names of all the parties to the appeal, in each of the assignments of error.
This was not a suit on the drainage bond, nor was any judgment asked against any of the appellees. The only relief sought was adjudication of the amounts due the petitioners for their services.
Section 2 of the drainage act of 1885 (Acts 1885 p. 129, §5623 Burns 1901) as amended in 1903 (Acts 1903 p. 253) contained the following provision: “That at the time of the filing of said petition, said petitioner, or petitioners, shall give a bond, with good and sufficient freehold sureties, payable to the state, to be approved by the court, conditioned to pay all expenses in the event the court shall fail to establish said proposed drain.”
Section 11 of the act of 1885, supra, (§5644 Burns 1901),
Section 4 of the act of 1885, supra (§5625 Burns 1901), provides, among other things, that if the judgment of the court supports remonstrances for certain causes, “the proceedings shall be dismissed, at the cost of the petitioners, including the costs and per diem of the commissioners.”
Section 248 Burns 1908, §248 R. S. 1881, in force since July 2, 1877, provides that “the repeal of any statute shall not have the effect to release or extinguish any * * * liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action * * * for the enforcement of such * * * liability. ’ ’
Section 14 of the drainage act of 1905 (Acts 1905 p. 456) repealed all former legislation on the subject of drainage, but provided that the repeal should not affect then pending proceedings, wherein a ditch had been established, or in which there is “no attempt to, and which will not lower or affect any lake or body of water that has to exceed ten acres of surface,” etc. This act went into effect May 15, 1905.
An act approved March 6, 1905 (Acts 1905 p. 447, §6162 Burns 1908), prohibited, with a penalty of fine and imprisonment, drainage commissioners from recommending the establishment of any ditch cutting into or through or upon
The right to enter on another’s land to construct a ditch was unknown to the common law, and is wholly a creature of statute. The General Assembly in enacting the law, and the drainage petitioners in commencing this proceeding, must have contemplated that the statute authorizing it might be repealed before the proposed work could be established, and after commissioners should have rendered honest and valuable services in discharging their statutory duties. When such services are rendered, a liability therefor accrues as soon as the services are performed, and this liability was not destroyed by the repealing act in controversy, and consequently by §248, supra, the drainage statute of 1885, supra, shall be treated as still remaining in force for the purpose of sustaining any proper action for the enforcement of such liability. Pittsburgh, etc., R. Co. v. Oglesby (1905), 165 Ind. 542, 76 N. E. 165; Bruce v. Cook (1894), 136 Ind. 214, 35 N. E. 992; Kunkalman v. Gibson, supra; Taylor v. Strayer (1906), 167 Ind. 23, 78 N. E. 236, 119 Am. St. 469.
Appellees next contend that appellants are barred from any relief because of the provisions of the act of March 6, 1905 (Acts 1905 p. 456), which prohibited commissioners, under penalty, from doing any thing in a proceeding attempting to affect a fresh-water lake of over ten acres in area.
It is further insisted by appellees, that as appellants are not demanding any judgment against them, the court did not err in dismissing the proceedings.
Counsel for appellee also contend that the judgment here is not a final one from which appellants are authorized to appeal.
Other questions are argued in the briefs filed by counsel, but in view of the conclusions reached, as stated in this opinion, it is not necessary to discuss them.
Judgment reversed, with instructions to overrule each motion filed by appellees to strike out appellants’ petitions for allowances, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 96 N. E. 600. See, also, under (1) 2 Oyc. 985; (2) 36 Oyc. 1215; (3) 11 Oyc. 69; (4) 9 Cye. 475; (6) 14 Oyc. 1030; (9) 31 Oye. G.19; (10) 31 Oyc. 125; (11) 14 Oyc. 1049; (12) 2 Cyc. 605. As to rights of parties to illegal contracts, see 67 Am. Dee. 153.