Bass v. Elliott

• Decision Date: 05 March 1886
• Citation: 5 N.E. 663,105 Ind. 517
• Parties: Bass and others v. Elliott, Adm'r, etc., and others.
• Court: Indiana Supreme Court

105 Ind. 517

5 N.E. 663

Bass and others

v.Elliott, Adm'r, etc., and others.

Supreme Court of Indiana.

Filed March 5, 1886.

Appeal from Shelby circuit court.

O. J. Glessner and D. L. Wilson, for appellants.

Adams & Michener and Adams & Hackney, for appellees.

Howk, J.

On the twenty-fifth day of April, 1883, appellants, Bass and Gordon, filed their petition in the clerk's office of the Shelby circuit court, praying therein for the location and construction of a certain ditch or drain in Shelby county. Thereafter, on May 21, 1883, proof was made by appellants, to the satisfaction of the court, that notice had been given of the filing of such petition, in the manner required by section 2 of the amendatory draining act of March 8, 1883, more than 20 days before the day noted on the petition, and set as the day for the docketing thereof. Acts 1883, p. 174. Thereupon it was ordered and adjudged that the matter of such petition be entered on the dockets of the court as an action pending therein. On May 26, 1883, more than three days having elapsed after the docketing of such petition, and no demurrer, remonstrance, or objection having been filed either to the form of the petition or to any of the commissioners of drainage, and the petition appearing to be sufficient, it was ordered and adjudged by the court that such petition be referred to the commissioners of drainage of Shelby county, who were required to meet on a day and at a place named in such order, and to make a report of their proceedings in such matter to the court on June 16, 1883. Afterwards, on June 18, 1883, the commissioners of drainage filed, in open court, their report, verified by affidavit; and on the same day the appellees appeared and filed their remonstrances against such report. Afterwards, on October 8, 1883, the commissioners of drainage filed what is called “their amendment to their original report herein” and their affidavit annexed thereto. On the same day, appellees filed their written motion to strike from the files of this cause such amendment of the original report of the commissioners of drainage, for certain specified reasons. Afterwards, on October 11, 1883, upon affidavit filed, appellees' motion for a change of venue from the judge, or a change of judge, was sustained by the court. Afterwards, on March 11, 1884, before the Honorable Thomas W. Woollen, who had been duly appointed and qualified as judge pro tempore of the court below for the trial of this cause, appellees' motion to strike from the files the amendment to the original report of the commissioners of drainage was sustained by the court. The cause was tried by the court, and, at appellants' request, the court made a special finding of facts, and thereon stated, as its conclusion of law, “that the ditch proposed is not of public utility, and, the board of commissioners having taken jurisdiction thereof, this court will not interfere by ordering the construction of the ditch asked for in this cause.” Over appellants' exceptions to its conclusion of law, the court rendered judgment for the dismissal of the cause, and that appellees recover of appellants their costs.

The first error complained of here by appellants' counsel, in their brief of this cause, is the sustaining of appellees' motion for a change of venue from the judge, or a change of judge. It is claimed by counsel that a cause such as this is not a civil action, but a special proceeding under the statute concerning drainage; and, as that statute contains no provision for a change of venue from the judge, or a change of judge, counsel contend, with some force and plausibility, that the court erred in sustaining the motion for a change of judge. But, under the recent decisions of this court, the contention of appellants' counsel is untenable, and cannot be sustained. Thus, in Neff v. Reed, 98 Ind. 341, it was held, substantially, that a proceeding for the location and construction of a ditch or drain, under the statute concerning drainage, was so far a civil action that the provisions of the Civil Code, in relation to a motion for a new trial, were allowable and applicable to such proceeding. So, also, in Crume v. Wilson, 104 Ind. ---, S. C. 4 N. E. Rep. 169, the court said: “We are of opinion that, in drainage cases, the modes of procedure and the rules of practice prescribed by our Civil Code may properly be used to supply omissions in the drainage statutes.” Accordingly, it was there held that, although there is no provision of our drainage statutes which authorizes the petitioner for a drain to dismiss his cause at any time, of his own motion, yet the provisions of section 333, Rev. St. 1881, in relation to the dismissal of a civil action by the plaintiff, were applicable to drainage cases, and the petitioner for a drain might thereunder, at the proper time, dismiss his petition.

Applying the doctrine of the cases cited to the case in hand, we have no difficulty...