173 Ind. 610 | Ind. | 1910
On May 6, 1908, appellees caused a petition for drainage, together with bond and notices, to be prepared, and fixed and indorsed on said petition, May 28, 1908, as the day of docketing said cause in the Elkhart Circuit Court, under the provisions of the act of March 11, 1907 (Acts 1907, p. 508, §3, §6142 Burns 1908). On the following day the petition and bond were filed in the office of the clerk of said court, and appellee Harrington posted three notices of the pendency of said petition, the date of docketing the same, and of the route of such proposed drain as described therein. The route of the drain extended across lands owned by appellant, and upon which he resided, and on May 6,1908, previous to the filing of the petition, appellee Harrington delivered to appellant, upon his said lands, a typewritten notice of said proposed drainage, addressed to him personally, and on May 28, 1908, made and filed proof of the service of notice upon appellant, and of the posting of notices along the line of the proposed drain. The cause was subsequently docketed and referred to the drainage commissioners, who were ordered to make report on the first day of the October term of said court. The commissioners made due report as directed, in which appellant’s lands were assessed as benefited, and on October 26, 1908, this report was approved, the assessments confirmed, and the proposed work declared established, and assigned to the proper commissioner for construction.
On March 16, 1909, appellant caused a special appearance to be entered, and moved to quash and set aside the notice and service thereof as to him, for the reasons, in substance,
Appellant has assigned as error the overruling of his motions to quash the notice and service thereof as to him, to vacate the assessments, and .to be allowed to remonstrate for cause.
In proceedings for the establishment of public drains, remonstrance must be filed within the time prescribed by statute, and the court has no power to extend such time. Smith v. Biesaida (1910), 174 Ind. —,
The court had no authority to vacate its judgment upon motion such as appellant presented. Appellant did not appeal from the final order in this cause within the time given for appeal, and such time cannot be extended by resort to motions to vacate, filed nearly four months afterwards. As the court had no power to vacate its final order by granting appellant’s said motions, its denial thereof at his costs was not an appealable judgment, and the appeal presents no question for decision. Randolph v. City of Indianapolis (1909), 172 Ind. 510.
The appeal is dismissed.