169 Ind. 42 | Ind. | 1907
Lead Opinion
This proceeding was commenced by appellants and others before the board of commissioners of Allen county for the establishment of a public ditch. Appellees remonstrated against the proposed improvement, and, from a final judgment of the board- establishing the ditch as described in the report of the reviewers, appealed to the circuit court. In the circuit court appellants filed a motion to dismiss the appeal of the remonstrators, and of each of them severally, for the reasons that there was no prayer for an appeal from the board by the remonstrators, or any of them, and no appeal bond had been filed by them or any of them with the auditor, nor had any such appeal bond been approved by the auditor. These motions were overruled and exceptions properly reserved. Appellees filed a motion to dismiss the proceeding, for the reason that the proposed ditch was ordered established June 14, 1905, after the law under which the proceeding was instituted had been repealed by the act of March 6, 1905 (Acts 1905, p. 456, §5622 et seq. Burns 1905), without a provision saving pending pro
The principal questions in controversy are presented by assignments of error charging that the court erred in overruling appellants’ motions to dismiss the appeals from the hoard of commissioners, and in sustaining appellees’ motion to dismiss the proceeding, and in dismissing the same at appellants’ cost.
The judgment is reversed, with directions to overrule appellees’ motion to dismiss the proceeding, and to sustain appellants’ motions to dismiss the appeals attempted to be taken by appellees' from the final order of the board of commissioners.
Rehearing
On Petition for Rehearing.
Much as we regret the condition of the record of which