Bohr v. Neuenschwander
| Decision Date | 29 October 1889 |
| Docket Number | 13,002 |
| Citation | 22 N.E. 416,120 Ind. 449 |
| Parties | Bohr v. Neuenschwander |
| Court | Indiana Supreme Court |
From the Wells Circuit Court.
Judgment reversed, with costs.
A. N Martin and H. L. Martin, for appellant.
J. S Dailey, L. Mock and A. Simmons, for appellee.
This is a proceeding under what is known as the Drainage Act approved April 8, 1881, as it was amended by the act approved March 8, 1883, and which later act is found in Elliott's Supplement, beginning with section 1175.
The petition was filed on the 15th day of January, 1885. The specifications given in the petition for the improvement are; (1) that public health will be promoted; (2) that a certain public highway, therein described, will be benefitted, and (3) that the improvement will be of public utility.
The petition was docketed as an action pending by order of the court, February 9, 1885, and on the 12th day of said month it was referred to the commissioners of drainage, and they were ordered to meet on the 14th day of said month, and to make their report to the court on the third Tuesday therein.
On the 16th, which was two days before the time designated for the said commissioners to make their report, upon the petitioners' motion the court made an order extending the time, and designated April 28th, 1885, as the day on which the report should be made. The commissioners did not make their report on that day, and had not done so on the 12th day of May following, on which day the appellant moved for a judgment discontinuing the petition; this motion the court overruled, and the appellant excepted. On the following day the commissioners made their report, which, on motion of the appellee, was referred back to them, and the 26th day of said month designated as the day when they should report. To this order the appellant made no objection.
On said last named day the commissioners made their report, and the appellant moved its rejection, filing several written reasons therefor. This motion the court overruled, and he excepted. He then filed a remonstrance, alleging several causes, some of which only brought in question the sufficiency of the report, while others stated matters in bar of the petition.
Upon the remonstrance being filed, the cause was submitted to the court for trial, and, after hearing the evidence, it found as follows:
"The court finds for the petitioner, that the assessments made on the lands of the remonstrant, Isaac Bohr, are just and equitable."
The appellant then filed his motion for a new trial, which was overruled by the court, and he excepted, after which the court rendered judgment confirming the report of the commissioners.
Numerous errors are assigned, but it does not become necessary for us to notice each specifically.
The court committed no error in refusing to discontinue the petition.
The act of 1883 was in force when the petition was filed and the commissioners appointed, and although repealed by the act approved April 8th, 1885, as to all future drainage proceedings that might be instituted, was continued in force as to all pending proceedings. This act required the petitioner to file his petition in the office of the clerk of the court, noting thereon the date at which it should be docketed, and then to give the required notice, and much like the plaintiff in an ordinary action is required to do when he commences his action during the term; and on the day noted it becomes the duty of the court, if satisfied that the proper notice has been given, to order the petition docketed as an action pending therein.
The petition having been thus docketed becomes a pending action, made so by law, and governed by the same rules of procedure that govern other pending actions, except as specially otherwise provided. And as there is no special provision as to discontinuances in this class of cases, the statutory provisions on that subject applicable to all pending actions must be applied. These are as follows:
It would seem that these sections are broad enough to meet the contention of the appellant. But the report which the commissioners were required to make had to be made to the court, and could not be made to the judge, and could, therefore, only be made when court was in session.
The time for holding the courts in Wells county was changed by an act of the Legislature, approved March 3d, 1885, and as the result there was no court in session on the 28th day of April, 1885, hence the commissioners could not report on that day. It can hardly be claimed that this change in the law, even without a saving clause, or any other statute on the subject, would have the effect to discontinue pending actions. But section 11, of the said act of March 3d, contained an ample saving clause, and as the result thereof one of two conclusions must follow, either that it became the duty of the court, if requested so to do within a reasonable time by any of the parties interested, to designate another time for the commissioners to make their report, or else they might report within a reasonable time without such order, and in either case the appellant's motion was properly overruled. But, independently of the statutory provisions to which we have called attention, the failure of the commissioners to report at the time designated will not discontinue the petition.
We can imagine no good reason why it should; it may become evident before the arrival of the day designated that the commissioners will not be able to file their report, and in that event, if any one or more of the parties interested appears and asks that further time be granted in advance, or if, on a designated day, or within a reasonable time thereafter, such request is made, we are unable to discover any good reason why the court might not grant the request and fix another day for them to report.
The failure of the commissioners to perform their duty should not work to the prejudice of the petitioners.
It is contended by the appellant that another time can not be fixed for the commissioners to make their report, except that on the day designated the commissioners themselves appear in court and ask for further time.
We find no such provision in the statute, and, as we have already said, we can imagine no good reason why any party interested might not ask that such an order be made. It occurs to us that it can be claimed with as much plausibility that if commissioners appointed to make partition of real estate in actions of partition, fail to report at the time designated, the failure will discontinue the action. In such a case what would be the court's action? Upon the application of any party interested, if not upon its own motion, it would designate another time for the same commissioners to report, or remove them and appoint others, and designate a time for them to report.
In what we have said we have taken it as granted that the petitioners are not at fault, and act with reasonable promptness. If the commissioners fail to make their report at the time designated, and that failure rests upon any fault or wrong of the petitioners, then the court might, no doubt, in the exercise of its discretionary powers, dismiss the petition, and it might do so when the petitioners were not in fault if they fail to act with reasonable promptness when the commissioners have failed to perform their duty. This is what is decided in the cases of Claybaugh v. Baltimore, etc., R. W. Co., 108 Ind. 262, 9 N.E. 100, and Munson v. Blake, 101 Ind. 78, and all that is decided.
We quote from the opinion in the first case named: "If the drainage commissioners do not report at the time designated, it may be that the petitioners could avert a dismissal by appearing at that time and asking an order against the commissioners; but, however this may be, they can not subsequently come into court, and, as of right, obtain such an order."
The facts in that case were, in substance, as follows: The commissioners were ordered to report on the third Thursday in December, 1884, which they failed to do, and on the 12th day of March, 1885, they appeared in court and requested that another time be fixed; their request was granted, and the 6th day of the following June designated; on the 24th day of said month of June, said commissioners, not having filed any report, again appeared and requested that still another time be fixed; but the court refused...
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