Carr v. Boone

• Decision Date: 20 November 1886
• Citation: 9 N.E. 110,108 Ind. 241
• Parties: Carr and others v. Boone and others.
• Court: Indiana Supreme Court

108 Ind. 241

9 N.E. 110

Carr and others

v.Boone and others.

Supreme Court of Indiana.

November 20, 1886.

Appeal from Hamilton circuit court.

Proceeding to establish a ditch.

Wm. Booth and F. M. Trissal, for appellants. Moss & Stevenson, for appellee.

Elliott, J.

The appellant Heiney petitioned the circuit court of Hamilton county for the establishment of a ditch, and an order was finally made establishing the ditch as prayed for. This appeal is from the judgment rendered in the proceedings put in motion by the petition of the appellant Heiney,

The cases which decide questions presented by a collateral attack upon the judgment of the court in drainage proceedings are not of controlling force here, for this is a direct attack upon the judgment. An appeal from the judgment brings in direct review all questions properly saved by the appellants. The notice originally given was that the petitioners would file a petition on a designated day, and, as against a direct attack, this was not sufficient; for the statute requires that the notice shall be given after the filing of the petition. Acts 1883, p. 173; McMullen v. State, 4 N. E. Rep. 903. The failure to give the notice required by law was a grave error, and would invalidate the proceedings as against a direct attack, unless corrected by subsequent proceedings. Notice is an essential requisite, and the omission to give the notice provided by the statute is one of a most material character, and these proceedings must fail unless the record shows that the notice was waived, or that subsequent proceedings cured the error; for here the case is before us for review by a direct appeal.

It is settled that notice in proceedings of this character may be waived. Sunier v. Miller, 105 Ind. 393; S. C. 4 N. E. Rep. 867. A notice, however, is not waived where the parties enter a special appearance, and move to dismiss the proceedings for want of notice; and that is substantially what was done by some of the appellants in this case. There can therefore be no affirmance of the judgment on the ground that there was a waiver of notice, as to the parties who thus appeared and objected to the notice. The question as to the sufficiency of the notice affects only those who do not waive it; for those who appeared without objection cannot now successfully urge its insufficiency. Some of these appellants did, however, seasonably object. As to them, the question remains whether or not the subsequent proceedings cured the error in the original notice; but, as to those who did not object, the judgment must be affirmed without further inquiry. Updegraff v. Palmer, 107 Ind. 151; S. C. 6 N. E. Rep. 353; Higbee v. Peed, 98 Ind. 420;Bradley v. City, 99 Ind. 417.

After the reference of the petition to the commissioners, they reported that proper notice had not been given, and the court thereupon ordered another notice to be given. This notice included all of these parties except Thomas Stanford. After this notice had been given, he, in conjunction with other parties, filed a motion to dismiss the proceedings, and assigned in support of the motion these grounds: (1) Because there was no affidavit showing the posting of notices; (2) because no notice was ever given of the filing of the petition; (3) because all of the lands described in the additional notice were described in the petition; (4) because the additional notice was not posted in three public places; (5) because notice was not given to some of the land-owners affected by the proceedings.

If this motion had been by Thomas Stanford alone, and had been followed by a separate assignment of errors, it would, perhaps, have entitled Thomas Stanford to a reversal; but it was a joint motion, followed by a joint assignment of errors, and, as the motion was not well taken as to all who joined in it, there was no substantial error in overruling it; but, if there had been, it would not be available on a joint assignment of errors. We say the motion and assignment are joint, because Mary Stanford, Eli Keffer, and another joined in it; and, as the motion was not valid as to all of them, there was no error in overruling it.

The fact that one or more land-owners were not notified did not vitiate the proceedings as to those who were properly notified. Grimes v. Coe, 102 Ind. 406; S. C. 1 N. E. Rep. 735; Town v. Leopold, 106 Ind. 29; S. C. 5 N. E. Rep. 761.

Proof of the posting of notices need not necessarily be made by affidavit, but may be made in any other legal method. Meranda v. Spurlin, 100 Ind. 380. It was not essential, therefore,...