193 Ind. 168 | Ind. | 1923
This was a proceeding to tile and cover a portion of an open public drain, known as the John M. Endicott drain, as provided by §19 of an act of the General Assembly in force April 10, 1907, as amended in 1913, Acts 1913 p. 152, §6174 Burns 1914.
On August 10, 1917, Roy Hershman, S. A. Hershman, Edward Harrell, W. H. Ross, and L. W. Pearson, owners of tracts of land affected and assessed for the construction of the Endicott drain, filed their petition in the Hamilton Circuit Court, and the court in which the original petition was filed and the proceedings had for the construction of the Endicott drain, stating, in part, that a portion of that drain was out of repair; that it could be more economically repaired and be made to do the work intended by tiling it. On October 2,' 1917, by leave of court, Lora W. Pearson withdrew his name from the petition. Such proceedings were then had that the court ordered the petition docketed as a pending cause. Thereafter, on February 25, 1918, the cause being at issue upon the petition and remonstrance thereto filed, evidence was heard, and the court there
To this report, eleven landowners separately and severally remonstrated, assigning statutory causes 1, 5, 7, 8, 9 and 10, as authorized by §4 of an act in force April 10, 1907, as amended in 1917, Acts 1917 p. 292, §6143 Burns’ Supp. 1921. The issue formed by the petition and the several remonstrances filed thereto were submitted to the court for trial, and, upon the evidence adduced, the court found that the report of the drainage commissioners should be confirmed; the assessments made thereby approved, and the proposed reconstruction should be established. Judgment was rendered accordingly, and the supervision of the work assigned to the county surveyor. Twelve of the parties against whom judgment was rendered separately and severally moved for a new trial, which was overruled, and this ruling and that the “court had ho jurisdiction to pronounce the judgment appealed from” are assigned as errors.
Appellees have not discussed the merits, nor have they presented a motion to dismiss this appeal as to all or any of the appellants. They have been content to make certain general as well as specific assertions, tending to challenge the jurisdiction of this court to examine this case upon its merits. Counsel for appellants have not replied.
Appellees insist: (I) That the transcript in this case affirmatively shows that it is not full and complete in that it appears (a) that certain papers and proceedings.are not copied therein, but are referred to as “here insert”; (b) the clerk’s certificate refers to the “second remonstrance” and the “second report” of the drainage commissioners, when there are no
(II) It is next asserted that the assignment of errors does not comply with Rule 6 of this court, in that (a) the full names of all the parties to the proceedings are not stated; (b) that the names of appellants in this assignment do not correspond with the names mentioned in the several remonstrances; (c) that the names of the parties to this appeal do not correspond to the names making the motion for a new trial; (d) that the persons named in the assignment of errors are not the same as those mentioned in the pleadings.
Preliminary to our discussion of the questions here presented, it may be suggested that the assignment of errors in this court is appellant’s complaint presenting questions of law only to be determined from the record. Furthermore, the long-settled practice and Rule 6 of this court require the assignment to contain, either in
In the instant case, the remonstrances were filed against the report of the commissioners. The remonstrators were the losing parties. All but one appealed, and one other person, a party to the judgment, joined with them, and all are named in the assignment of errors as appellants, but as to certain ones, the assignment does not contain their Christian names in full. This being a drainage proceeding, according to rulings precedent, the drainage statute (§6141 Burns 1914, Acts 1907 p. 508) has been construed as modifying the above rule in this class of cases, so that, if the persons named in the assignment of errors correspond to the names given by the persons themselves in their own pleadings, or as given in the judgment, the assignment in that regard will be deemed sufficient. Goodrich v. Stangland (1900), 155 Ind. 279; Keiser v. Mills (1903), 162 Ind. 366; Smith v. Gustin (1907), 169 Ind. 42; Kline v. Hagey (1907), 169 Ind. 275; Nisius v. Chapman (1912), 178 Ind. 494.
This appeal was taken in term and in accordance with §6143 Burns’ Supp. 1921, supra, wherein it is provided that: “All parties shall take notice of and be bound by such appeal, and all proceedings in the matter of such drainage shall be stayed until its determination.” Furthermore, §675 Burns 1914, Acts 1895 p. 179, authorizes “any number of co-parties against whom a judgment has been taken” to prosecute a term-time appeal from such judgment to the Supreme Court without making other coparties not appealing parties to the appeal, and who “shall be bound by the
Noticing appellees’ second objection, it will be observed that the name Albert S. Osborn appears in the assignment, when in the remonstrance, motion for a new trial and in the judgment we find the name of Albert Osborn. The report of the commissioners in the first instance named Albert Silas Osborn as a person whose land was affected, and the court ordered notice to Albert S. Osborn. The name Rosa E. Roekey in the assignment of errors is the same as in the remonstrance, but the judgment is against Rose E. Roekey. The assignment has the name of Wm. R. Hershman, but from the record we learn that the petition described lands belonging to William M. Hershman; the remonstrance signed by W. M. Hershman; the judgment assessing benefits against the lands of Wm. E. Hershman; judgment for certain costs against W. R. Hershman, and W. R. Hershman making the motion for a new trial. As to these parties who are named as appellants, the record justifies the conclusion that Albert S. Osborn is the person against whom judgment was taken, and that Rosa E. Roekey and Rose E. Roekey are one and the same person; hence, the assignment as to them is sufficient. There was no judgment rendered for or against Wm. R. Hershman, except for certain costs, a grievance for the determination of which an appeal to this court will not be entertained. Win
It is only persons who are parties to a final judgment or their representatives who can appeal from such judgment. Jager v. Doherty (1878), 61 Ind. 528. Consequently, as Wm. R. Hershman was a stranger to the judgment, the appeal as to him, on motion, might have been dismissed, or it may be treated as surplusage with respect to those who are proper parties to the appeal. Jager v. Doherty, supra; Thomas, Admr., v. Chicago, etc., R. Co. (1894), 139 Ind. 462; Smith v. Gustin, supra; Campbell, etc., Co. v. Souders (1917), 64 Ind. App. 138.
Wm. E. Hershman was a coparty with the other appellants named in the judgment, and no such name appearing in the assignment of errors either as appellant or as appellee, we may assume that he did not appeal. Consequently, as we have seen, his failure to appeal would not affect the right of his coparties to do so in term without naming him either an appellant or an appellee. The facts before us would justify the inference that William M. Hershman and W. M. Hershman are one and the same person, but as he is not a party to this appeal or to the judgment appealed from, and not shown to have any interest affected by the appeal, it was unnecessary to make him a party. Southern R. Co. v. Elliott (1907), 170 Ind. 273; New American Oil, etc., Co. v. Troyer (1905), 166 Ind. 402.
The assignment of errors names all of the petitioners as appellees, except W. H. Ross and L. W. Pearson, who, after signing the petition, became remonstrators. Counsel who appear in this court for the appellees generally, represented the petitioners only in the trial court. The persons, other than the petitioners and remonstrators, whose lands were ássessed to pay for the proposed improvements, except one F. A. Hersh
(III) It is further claimed that, for the failure of some of the appellants to join in the appeal bond, or in the absence of a showing that the bond was filed on behalf of all of them, the appeal was not in term. The record discloses that all of the remonstrators, at the time the court overruled their motion for a new trial, and as a part of the same order-book
(IV) It is claimed that under the assigned error, the overruling of the motion for a new trial, appellants have discussed questions arising upon the evidence which should not be considered by this court, for the reason that the evidence is not properly authenticated. At the close of the evidence is the recital of the reporter: “And this was all the evidence given in this hearing of this case”. The court’s certificate to the bill of exceptions contáining the evidence recites: “That the foregoing typewritten transcript of the evidence so taken and reported as aforesaid contains all of the evidence given in the trial of this cause on the remonstrances of Joseph Rockey, et ai. to the second report of the drainage commissioners.” The issues tried, resulting in the judgment from whicli this appeal was taken, were formed by the remonstrances filed to the report. The authentication was sufficient.
(V) Appellees finally insist that the bill of exceptions containing the evidence is not properly in the record, for the reason that no notice of the application for extension of time to tender the bill was given. to certain appellees herein who were not represented by attorneys in the trial court. Section 661 Burns 1914, Acts 1911 p. 193, requires at least three
(VI) Looking to the merits, counsel for appellants insist that the exclusive jurisdiction to clean, repair or extend public drains is in the board of county commissioners, and that circuit courts have no such jurisdiction. They cite Acts 1915 p. 417. That enactment was repealed in 1917, §6161p3 Burns’ Supp. 1921, Acts 1917 p. 384, §10. Section 19 of the 1907 Act, as amended (Acts 1913 p. 152, supra), gave the Hamilton Circuit Court jurisdiction to entertain the petition, and expressly provides that the procedure in such matters shall conform to the requirements of §3, Acts 1907 p. 508, §6142 Burns 1914, and amended §4, Acts 1917 p. 292, §6143 Burns’ Supp. 1921.
(VII) Appellants, in support of their motion for a new trial, insist that the decision of the court was not sustained by sufficient evidence; that it was contrary to law; and that the court erred in admitting certain evidence. The first two of these causes may be considered together, for, as here presented, the last is made to depend upon the claim that there was no, evidence to support facts essential to sustain the court’s decision. Deal v. State (1895), 140 Ind. 354; Combs v. Combs (1914), 56 Ind. App. 656.
Appellants first make the point that there was no evidence from which the court could find the total cost of the proposed drain, or the total benefits to be derived therefrom. Hence, the court could not and did not find these ultimate facts, which were essential in order to avoid the imperative command of the eighth cause for remonstrance. Appellants predi
It may be regarded as settled that the report of the drainage commissioners, showing the “costs, damages and expenses” of such work to be less than the total benefits to the lands affected, is admissible in evidence, and is to be considered by the court as prima fade evidence of such facts. §6151 Burns 1914, Acts 1907 p. 507, §17; Katterhenry v. Arensman, supra; Lake Agricultural Co. v. Brown (1917), 186 Ind. 30; Wilson v. Tevis (1916), 184 Ind. 712; Shields v. Pyles (1912), 180 Ind. 71.
In the case of Martin v. Adair (1920), 189 Ind. 177, it was held that if the remonstrances were supported by sufficient evidence, and there was no evidence offered by the petitioner, the prima facie case made by the report could not be considered for • any purpose. See, also, Cleveland, etc., R. Co. v. Wise (1917), 186 Ind. 316; Moore v. Ryan. (1919), 188 Ind. 345. In a case of this character, drainage commissioners are a legally constituted body authorized and charged by statute with the duty of reporting to the court the facts in question tendered by the petition and if favorable to the petitioners and not challenged by remonstrances, they may be taken as prima fade true, and hence sufficient to warrant the court in making the final order approving and confirming the assessments and declaring the proposed work of drainage established.
In the instant case, the petitioners did not rely upon
Appellants also claim that the court invaded the province of the drainage commissioners by directing the manner in which the work of repairs should be done. This proposition is evidently directed to the court’s first order in the premises, but it must be remembered that the report made pursuant to. that order was set aside and the matter re-referred to the commissioners, with the direction that they “view the land and perform the duties of their office,” and time was fixed when they should report. Their duties were prescribed by §6142 Burns 1914, supra, and a direction to them to do their duty is unobjectionable. An examination of the report indicates that the commissioners attempted to follow the statute in this respect. The report contains specifications as to how the work should be done and the size of tile to be used. These were matters wholly for the Commissioners and their judg
Appellant Rockey insists that only a part of his land assessed for the original drain was assessed to pay for the proposed work covered by this proceeding, and, for that reason, the report was not according to law. The original drain, and the one affected by the proposed work, was constructed under the direction of the court in which this proceeding was properly commenced. O’Toole v. Tudor (1910), 175 Ind. 227; Stockton v. Pancoast (1912), 178 Ind, 203; Love v. Jones (1920), 189 Ind. 390. Amended §19, Acts 1913 p. 152, supra, under which this proceeding was begun, provides for the apportionment of the costs of the proceedings and the cost of such repairs according to the benefits to be derived therefrom. This provision of the statute limits the assessments to the territory benefited by the proposed work. Thus, it would seem that the report in this particular followed the statute and was according to law;
Appellant Rockey, further complaining, says that the drainage commissioners failed to report a drain “with ample means for the drainage or protection from overflow of the land to be affected, having in view future contingencies as well as the present.” §6142 Burns 1914, supra. It must be kept in mind that this is a proceeding to repair, by tiling and covering an existing public drain. Rockey’s grievance is caused by the failure and refusal of the drainage commissioners to extend the Endicott drain west from 1,600 to 1,900 feet into what appears to be a sump on the west end of the northwest quarter of the southeast quarter of section 5, owned by him. The Endicott drain started forty rods south of the northeast corner of the
The evidence relative to the topography of the northwest quarter shows the overflow water from this sump runs to the east, but until this condition arises, a portion of this land slopes to the sump and the remainder to the east and south. This particular quarter quarter of land was assessed $10 on account of the Endicott drain. It also fairly appears that the Endicott ditch was not designed and intended to drain this land beyond the water shed to the east. Of course, if the Endicott ditch was designed and intended to drain and reclaim this particular low land, then the commissioners were authorized by statute to depart from the Endicott ditch specifications by changing its course, or by extending its length, when necessary to “render the work efficient in performing the drainage which the original drain was intended to accomplish.” Huffman v. Newlee (1919), 189 Ind. 14. But as said in the case last cited, p. 22: “As to whether such changes and extensions are reasonably necessary to accomplish such
James S. Shannon, county surveyor, was permitted to testify on cross-examination that he had learned, by reference to the records in his office, that Rockey’s land had been assessed on account of drains other than the one in question. If it be conceded that this evidence was improper, the record in this case is such that we would not reverse the judgment on that account.
Judgment affirmed.