176 Ind. 253 | Ind. | 1911
A petition for drainage was filed in the Lagrange Circuit Court on August 7, 1909. Such proceedings were thereafter had that the ditch was established. The assessments therefor were confirmed May 18, 1910. A commissioner was appointed to construct the drain, and the work was let to appellant.
At the November term, 1910, one Spangler, and several other persons, through the land- of one of whom the ditch remains to be constructed, filed in the Lagrange Circuit Court a verified petition, alleging that they were the owners of lands affected by the construction of the proposed drain, that the ditch was not being constructed according to the specifications, in that it was being cut from eight to sixteen feet wider than the specifications called for, with perpendicular, instead of sloping banks, as specified, and that, by reason of the wide cutting, the earth was thrown back so as to render worthless a wider strip of ground than was necessary. The court was asked to direct the commissioner to make an immediate report, showing whether said drain was being constructed according to contract, and if said report showed that it was not being so constructed, that Clyde A. Walb be cited to appear before the court, and show cause why his contract should not be canceled and all payments for work refused.
On November 28, 1910, without the direction of the court, the drainage commissioner filed a verified report in said court in the proceeding, in which he showed in detail the
On December 7, 1910, the court entered the following order: "The regular judge being disqualified to hear this cause, by reason of consultation with parties in interest before his election, William J. Davis, a reputable attorney of the State of Indiana, is appointed special judge in said cause.” The record shows that on the same day Davis took and subscribed an oath of office. It then recites: "And by agreement of all parties, the further hearing of this cause is set for Monday, December 12, 1910, at 9:30 o’clock a. m.” On December 12, 1910, the commissioner of drainage filed proof of notice to the contractor Walb, reciting the fact of the filing of the petition by Spangler and others on November 22, 1910, asking that the commissioner file a report showing the condition of said work; and that he as such commissioner had filed such report, showing the condition of such work, and further showing that said Walb was not constructing said work according to the contract and the specifications; that on presentation of such report the court had fixed Monday, December 12, 1910, for hearing said report, and all matters properly connected therewith, and said Walb was notified to appear before the judge of the Lagrange Circuit Court at the courthouse in Lagrange, on said date, to answer said report, and on his failure so to do, said report was to be heard and determined in his absence. This notice was signed by the commissioner for construction by his attorneys. Service of this notice on Walb, December 9, 1910, was made by copy delivered by the sheriff, and proof of such notice was made in open court. A finding was entered December 12, 1910, that due notice had been given to the contractor.
On December 12,1910, Walb entered a special appearance, and moved to set aside and annul the notice and pretended process theretofore presented and entered against him, and
The trial then proceeded on December 13, and certain parties dismissed the petition as to themselves. The court denied the request of Walb for a special finding of facts, and he excepted. The court then filed its finding of facts, judgment and order, and entered its findings, judgment and order therein as follows: “After hearing the allegations and proof, and being sufficiently advised in the premises, the court finds that Clyde A. Walb, the contractor for the construction of the ditch in question, is not and has not been constructing the same in substantial compliance with and in accordance with the specifications of said ditch, as hereinbefore adopted and ordered by the court, in this to wit: [Here follow particulars of the departure from the specifications.] It is therefore ordered and adjudged by the court that said Clyde A. Walb, contractor, be and he is hereby ordered and directed to proceed with the completion and construction of said ditch in substantial compliance with the specifications thereof as heretofore ordered by the court; and said contractor, his agents, servants and employes are hereby forbidden and enjoined from digging and excavating said ditch through the remainder of its length of a width at the top materially in excess of the width mentioned in said specifications; and he is forbidden and enjoined from digging the remainder of said ditch with perpendicular banks; and is required to leave said ditch when completed with sloping banks, as provided in said specifications, and with said roll of earth and roots and other debris removed. And the ditch commissioner, Gouvernear A. Tucker, is hereby ordered and directed to insist and see that this order of the court is substantially carried out and complied with. And it is further, ordered by the court that in the event said contractor shall fail, negiect or refuse to comply with this order of the court in relation to
Judgment was entered as follows: “It is further considered and adjudged by the court that the petitioners, George Spangler, et al., except the petitioners whose action was dismissed as before stated, and Gouvernear A. Tucker, the drainage commissioner herein, shall recover of and from defendant Clyde A. Walb, their costs in the sum of $-. ’ ’
An appeal was prayed, bond filed and approved, and a term-time appeal perfected.
In view of the conclusions of the court, the only errors that need be considered are those arising upon the overruling of the objections to the jurisdiction of the special judge, and the overruling of the motion to remand the cause to the regular judge.
We are confronted at the threshold .of the ease with a motion to dismiss the appeal on the grounds (a) that the matter is not one from which an appeal lies, (b) that it is an appeal from an order of court in a pending cause, and is not based on any interloetuory order, final judgment or decree, and (c) that the judgment is one for costs only, as to which there was no motion to modify. The position pf appellant is that the order in this case is, in effect, a final' judgment perpetually enjoining appellant from doing a certain thing, that it awards all that is demanded, and adjudges costs against the adverse party; that an appeal lies even from a void judgment interfering with appellant’s legal
The case remains on the docket for the purpose of executing the judgment. Mak-Saw-Ba Club v. Coffin, supra; Shaum v. Harrington, supra; Perkins v. Hayward, supra; Carter v. Buller (1902), 159 Ind. 52; Studabaker v. Studabaker (1899), 152 Ind. 89.
Many attempts have been made to define and to distinguish between final judgments and interlocutory orders, and it may safely be said that no hard and fast rule can be laid down, further than that final judgments are those which finally dispose of the subject-matter as to all parties, so far as the court before which the proceeding is pending has
It has been held in this State that an order to an administrator to pay money into court in connection with filing a current report is a final judgment. Covey v. Neff (1878), 63 Ind. 391.
An order with respect to taxing costs upon motion to retax costs is a final judgment. Hill v. Shannon (1879), 68 Ind. 470.
The fact that there was no formal judgment of annulment is immaterial. The force and effect of the findings as made would have justified an order of annulment, and is, in effect, an order justifying annulment, not in carrying out the original judgment, but because it is not being carried out, and
The motion to dismiss the appeal must be denied, and by reason of the error in overruling the objection to the jurisdiction of the trial judge, and overruling the motion to remand the cause to the regular judge, the judgment in this case must be reversed, with instructions to the court below to remand the cause to the regular judge of the Lagrange Circuit Court, and for further proceedings in accordance with this opinion.