178 Ind. 203 | Ind. | 1912
In October, 1909, appellees, as landowners, filed in the Jasper Circuit Court a drainage petition, praying for the tiling, enlarging and improving of a public drain, known as the Martindale ditch, and a lateral thereof called the Halstead ditch, and for the constructing of some new branches to the Martindale ditch. The proposed improvements were all in Jasper county.
It is contended by appellants that the Jasper Circuit Court had no jurisdiction of the subject-matter of the proceeding.
Appellants Almira M. Stockton, Cordelia M. Williams and Eliza Makeever filed a remonstrance, in the twelfth paragraph of which it was alleged that in 1899 a petition was filed with the board of commissioners of said county praying for the establishment and construction of the Martindale ditch, which was, by the board, in June, 1901, ordered established and constructed; that the construction thereof has not been entirely completed, according to the plans and specifications, and the matter is still pending before the board; that the drain which petitioners are herein seeking to improve is over the same line as the Martindale and Halstead ditches, and remonstrators deny the right of this court to order the improvement prayed for while the same is still pending before the board of commissioners.
Appellant Isaac N. Makeever filed a remonstrance, the tenth paragraph of which alleged substantially the same facts set out in the twelfth paragraph of the remonstrance of Almira M. Stockton and others.
Appellant Jasper M. Makeever filed a remonstrance, the tenth paragraph of which was substantially like the tenth paragraph of Isaac N. Makeever’s remonstrance. These re
The cause was tried by the court, resulting in á finding for appellees. Appellants filed a motion in arrest of judgment, which was overruled, as was also their motion for a new trial. From a judgment for appellees, granting the relief prayed for in the petition, this appeal is prosecuted.
This'section has been construed by this court to require proceedings to tile, improve or otherwise change a drain already constructed to be brought in the court which originally ordered it established. O’Toole v. Tudor (1911), 175 Ind. 227, 93 N. E. 276; Binher v. Hahn (1910), 175 Ind. 88, 92 N. E. 729. In the O’Toole case it was held, however, that it is not necessary to aver in the petition what court made the order establishing the drain, and the question of jurisdiction is not raised by a motion in arrest of judgment,
Appellants insist that the court erred in sustaining the demurrers to the remonstrances above noted, because it is therein averred that the Martindale ditch was established by order of the board of commissioners, and it appears on the face of the petition that the Halstead arm was established by the order of the board, and hence the board had, under §6174, supra, exclusive jurisdiction of the subject-matter of the petition.
Appellee’s counsel contend that the paragraphs of remonstrance referred to are drawn on the theory of pleas in abatement, and, as such, are insufficient, because matters in abatement must precede pleas in bar, and cannot be pleaded therewith. §371 Burns 1908, §365 R. S. 1881; Moore v. Sargent (1887), 112 Ind. 484, 14 N. E. 466.
For the error in sustaining appellees’ several demurrers to the twelfth paragraph of remonstrance of Almira M. Stockton and others, and the tenth paragraph of remonstrance of Isaac N. Makeever, and the tenth paragraph of remonstrance of Jasper M. Makeever, the judgment must be reversed.
Other errors are assigned, but in view of the conclusion reached, their consideration is rendered unnecessary.
Judgment reversed, with instructions to overrule appellees’ demurrers to said paragraphs of remonstrance, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 98. N. E. 122. See, also, under (1) 14 Cyc. 1054; (3) 31 Cyc. 84; (4) 14 Cyc. 1030; (5) 14 Cyc. 1036.