Bakelandt v. De Baets

• Decision Date: 27 February 1947
• Docket Number: No. 28215.,28215.
• Citation: 224 Ind. 648,71 N.E.2d 473
• Parties: BAKELANDT et al. v. DE BAETS et al.
• Court: Indiana Supreme Court

224 Ind. 648

71 N.E.2d 473

BAKELANDT et al.

v.DE BAETS et al.

No. 28215.

Supreme Court of Indiana.

Feb. 27, 1947.

Proceeding by Maurice De Baets and others against August Bakelandt and others for reconstruction of a drain. From a judgment in favor of the petitioners, the remonstrants appeal.

Judgment affirmed.Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

Orie Parker, of South Bend, for appellants.

L. M. Hammerschmidt, Milton A. Johnson, and Joseph G. Ettl, all of South Bend, for appellees.

O'MALLEY, Judge.

The appellees filed a petition for the reconstruction of a drain in St. Joseph County, Indiana, and after notice was given, the petition was docketed, the viewers were appointed and a report, favorable to the petitioners, was made. Later the county surveyor filed his report and within the period allowed by law, the appellants appeared and remonstrated on the following points.

1. That the assessment was exorbitant;

2. That the cost would exceed the benefits;

3. That it would not improve public health; that it would not benefit public highways; nor would it be of public utility;

4. That the water table was too low at that time and that the reconstruction and repair thereof would further lower it.

The appellants raised a great number of questions which were based upon the above reasons of the remonstrance; upon the claimed insufficiency of the evidence to sustain the finding; upon the sustaining and overruling of motions to strike out various pleadings; and upon the admittance and exclusion of evidence. We believe all raised questions can be grouped into five categories and we shall endeavor to so treat them.

1. After the hearing on the remonstrance, the appellants for the first time asserted that the original notice was defective and that the court lacked jurisdiction of the subject-matter and of the appellants. Having appeared, filed the remonstrance, and having vigorously opposed the engineer's report on the grounds set forth in the remonstrance, it was too late to question the jurisdiction of the person of appellants. Drinkwatter v. Eikenberry, 1946, 224 Ind. 84, 64 N.E.2d 399. It was not seriously contended that the court did not have jurisdiction of the subject-matter. The statute under which this proceeding was commenced was sufficient to give the lower court jurisdiction of the subject-matter. § 27-120, Burns' 1933 (Supp.).

2. The statute, § 27-114, Burns' 1933 (Supp.), grants 10 days from the filing of the report of the surveyor for the filing of objections and remonstrances, and all causes not asserted within the 10 day period, are waived. Stroup v. Ferguson, Trustee, 1928, 200 Ind. 139, 161 N.E. 628. The remonstrance did not assert that the report was not according to law and therefore that cause was waived.

The motions to bring in new parties and to strike the surveyor's report, which were filed by the remonstrators, were both claims that the report was not according to law and but another way of remonstrating, and not having been asserted within the period given in the statute, could not thereafter be claimed....