74 Ind. App. 106 | Ind. Ct. App. | 1919
This action was commenced in the Grant Superior'Court to enjoin the appellees from constructing a catch-basin upon appellant’s right of way. A temporary restraining order was granted and, before the day set for a hearing on the application for a temporary injunction, appellant filed an affidavit for a change of venue from the county and also one for a change of judge. The court, without ruling upon either of said applications, and over the objection of appellant, made an entry dissolving the temporary restraining order, and then sustained the motion for a change of venue and sent the cause to the Wabash Circuit Court. After the temporary restraining order was dissolved the appellees constructed the catch-basin and appellant filed a supplemental complaint asking for a mandatory injunction requiring that appellees remove the catch-basin.. Appellants filed a motion in the Wabash Circuit Court for an order to require the appellees to show cause why they should not be cited for contempt. This motion was overruled and exception saved. The appellees filed an answer of general denial to both the complaint and the •supplemental complaint. A second paragraph of answer was also filed to the supplemental complaint and alleged that proceedings had been commenced in the Grant Circuit Court for the reconstruction of a certain public ditch; that appellants appeared and filed a remonstrance in said ditch proceedings; that such further proceedings were had in such matter as resulted in said ditch being ordered established, and that the report of the commissioners in said proceedings as approved by
The cause was submitted to the court for trial and, after hearing the evidence, the court, on the motion of appellees, dismissed the cause for want of jurisdiction, to which appellant excepted. Judgment was rendered dismissing the cause and against appellant for costs. The evidence is in the record by a bill of exceptions.
The appellant’s assignment of errors Nos. 1, 2, 3, 4 and 5 relate to the action of the Grant Superior Court in dissolving the temporary restraining order pending the applications for change of judge and for change of venue from the county; No. 6 relates to the overruling of the motion to require appellees to show cause, No. 7 to the overruling of the demurrer to the second paragraph of answers to supplemental complaint; Nos. 8 and 9 are that the court erred in sustaining the motion to dismiss and in dismissing the cause.
The appellant contends that the Wabash Circuit Court erred in dismissing the cause.
The facts, as shown by the evidence, are substantially as follows: The catch-basin, the construction of which appellant was seeking to enjoin, was the outlet and terminus of a public drain known as the reconstruction of the Marsh ditch, which had been established and ordered constructed by the circuit court of Grant county, under the supervision of the appellee Murphy, drainage commissioner. The appellees Williamson and Williamson were the contractors, who had been awarded the contract to construct said drain according to the plans and specifications therefor, and were proceeding to put in the catch-basin at the point where they claimed it was required by the report and the plans and specifications of the drainage commissioners as approved by the court. Said drainage proceeding was pending when the complaint in this action was filed and was still pending when the court dismissed this cause. The appellant was a party to said drainage proceeding. There was a conflict as to whether the appellees were constructing the catch-basin at the point where the report of the draináge commissioners required it to be constructed. The appellees claimed that it was being so constructed, while the appellant contended that it was being constructed at a different place.
Section 6147 Bums 1914, Acts 1907 p. 508, §7, provides that the commissioner appointed to construct a drain “shall at all times be under the control and direction of the court, and shall obey such directions.” If the construction commissioner and the contractors were not doing the work according to the plans and specifications, the appellant could have had them cited for contempt for disobeying the order made by the. court for the construction of the ditch. Racer v. State, supra.