101 Ind. 78 | Ind. | 1885
The appellee presented to the Marshall Circuit Court, at its October term, 1881, his petition for the location and construction of a drain, and on proof being made to the satisfaction of the court that proper notice of the appellee’s intention to so present the same had been duly given as required by the statute, said petition was, by the court, at said term, referred to the commissioners of drainage of Marshall county, and they were directed by the court to view the proposed route of the drain, and if they found, upon such-view, that the drain would be of public utility, etc., to establish the same, and assess the benefits and damages to each tract of land that would be affected by its construction, and make a report of their proceedings and action therein to the court on the first day of its next term, being the December term, 1881, thereof. On the twenty-seventh day of said December term, 1881, the commissioners made their report, in favor of the construction of the drain and assessing benefits and damages as aforesaid. Two days afterwards Matilda Parry and others, whose lands were assessed for the construction of the drain, filed their joint remonstrance against the confirmation of the report. The remonstrance was verified by the affidavit of the attorney of said Matilda Parry. No further steps were taken in the proceeding until the October term, 1882, when a motion was made by the appellee to strike out the remonstrance, on the ground that it was not “ as to each and all ” of the remonstrants “ verified by affidavit as provided by law,” which motion was overruled by the court, and afterwards, at the same term, Matilda Parry withdrew, as a remonstrant, her objections to the'report of the commissioners, and afterward, at the same term, the commissioners filed an amended report, by which it appears certain assessments previously made by them, as shown in their original report, were, by them, reduced in amounts. No ob
The court refused to permit the remonstrance to be filed. An appeal to this court from the final order and proceedings of the court below was then prayed by Hosmer, Hildreth and Munson, but before the appeal was perfected Hosmer died, and thereupon Lucy A. Hosmer, as his sole devisee and executrix of his will, united with Hildreth and Munson in consummating the appeal, and they alone constitute the appellants herein. Hosmer and Hildreth have joined in an assignment of errors; while Munson has presented a separate assignment. The only available error assigned by Hosmer and Hildreth is the ruling of the court in striking out the remonstrance of Matilda Parry and others to the report of the commissioners; and the only available error assigned by Munson is the ruling of the court in refusing to permit him to file a remonstrance to said report.
Before considering these errors, it is necessary for us to dis
The objection last named rests upon the fact that the remonstrance was signed “ Hosmer & Hildreth,” and by that name the proceeding, as to them, was prosecuted and defended, which, doubtless, occurred by reason of the fact that they were so designated in the assessment of their lands. They were not named, in any manner, either in the petition or notice. It is fair to assume that the appellants Hosmer and Hildreth are, or represent, the same parties as those so assessed, and, therefore, had the right to appeal, as they have, from the assessment. See Houk v. Barthold, 73 Ind. 21. The appellee waived his right to urge the objection first named by agreeing to the submission of the cause to this court for its consideration, without insisting that said co-remonstrants should be made parties to the appeal. The motion to dismiss the appeal is overruled.
The statute, in force when the remonstrance in this case was filed, provided: “ Upon the making of such report ” (referring to the report of the commissioners of drainage) “ to the court, three days shall be allowed to any owner of lands affected by the work proposed, to remonstrate against the report.; and any such remonstrance shall be verified by affidavit,, and may be for any or all of the following causes,” etc. R. S. 1881, section 4276. Under this provision of the statute, owners of lands so affected may, jointly or severally, remonstrate against the report of the commissioners of drainage. If they join in such remonstrance, any of them may afterwards, at their pleasure, withdraw therefrom, and thereby escape future liability for costs thereafter created in consequence of the remonstrance ; but such action on their part will not defeat the
It does not appear by the record in this case, that any objection was made to the filing of the report at the time it was filed, nor that any motion was made afterwards to reject the report because it was no-t filed at the proper time. It is too late to make such objections for the first time in this
For the errors of the court above named the order and proceedings of the court below should be reversed.
Per Curiam. — The order and proceedings of the court below are reversed, at the costs of the appellee, and the cause is remanded to the court below with instructions to overrule the motion to strike out the remonstrance that was filed by Matilda Parry and others to the report of the commissioners, and to grant leave to the appellant Munson to file a remonstrance to said report, and for further proceedings in accordance with this opinion.