Bonfoy v. Goar
| Decision Date | 27 November 1894 |
| Docket Number | 16,978 |
| Citation | 39 N.E. 56,140 Ind. 292 |
| Parties | Bonfoy et al. v. Goar et al |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled Feb. 5, 1895.
From the Tipton Circuit Court.
Judgment affirmed.
W. R Oglebay and J. L. Oglebay, for appellants.
R. B Beauchamp and W. W. Mount, for appellees.
On the 16th day of August, 1892, the appellants filed in the office of the auditor of Tipton county a petition praying the establishment and construction of a certain public ditch or drain therein described. At the September term of the board of commissioners following, viewers were appointed to view the proposed ditch, which viewers filed their report on the following fifth day of November in favor of the establishment and construction of the ditch as prayed. The auditor fixed the 9th day of December as the date upon which a hearing should be had on this report, and gave the statutory notice. On that day the appellees appeared and filed a plea in abatement, upon the hearing of which the board of commissioners dismissed the petition and the appellants appealed to the Tipton Circuit Court. The circuit court sustained a demurrer to the plea in abatement, whereupon the appellants filed a motion praying the court to enter an order establishing the ditch in controversy. To this motion the appellees filed a demurrer, which was sustained. The appellees then filed a motion to strike out the motion filed by the appellants, which was also sustained. The circuit court then entered an order remanding the case to the board of commissioners, with directions to reinstate the same, set aside the order dismissing it, and to proceed to hear and determine the same on the petition and report of the viewers in all things as fully as if the same had not been dismissed, and to allow the parties to the plea in abatement, and all other parties interested, to file remonstrances or to take any other steps that they were authorized by law to take on the day fixed for a hearing on the report of the viewers.
The appellants moved to modify the order of the court so as to require the board of commissioners to enter an order establishing the ditch in the event it found the report of the viewers regular and sufficient, which motion the court overruled.
The assignment of errors calls in question the correctness of the several rulings against the appellants, hereinbefore set forth.
The appellees also file cross- errors, in which they call in question the correctness of the ruling of the circuit court in sustaining a demurrer to their plea in abatement.
The practice of demurring to a motion, in a case like this, or of filing a motion to strike out a motion is a practice of doubtful propriety, and is, we believe, wholly without warrant in our system of jurisprudence. Had the court, without the intervention of these useless preliminaries, passed upon the motion of the appellants, either sustaining or overruling it, the proceeding would have been much more simple and would not have tended so much to a needless complication of the record.
But as the effect of the ruling of the court upon the demurrer to the motion was to overrule the appellant's motion for an order establishing the ditch, we will not stop to inquire whether this result was reached by a straight road or a crooked one, but will proceed at once to inquire into the correctness of the conclusion reached by the court.
Our statute, upon the subject of appeals from the board of county commissioners to the circuit court, provides (section 7865 R. S. 1894), that "such court may make a final determination of the proceedings thus appealed, and cause the same to be executed, or may send the same down to such board, with an order how to proceed, and may require such board to comply with the final determination made by...
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