Clarkson v. Wood

• Decision Date: 05 June 1907
• Docket Number: No. 20,916.,20,916.
• Citation: 81 N.E. 572,168 Ind. 582
• Parties: CLARKSON v. WOOD et al.
• Court: Indiana Supreme Court

168 Ind. 582

81 N.E. 572

CLARKSON

v.WOOD et al.

No. 20,916.

Supreme Court of Indiana.

June 5, 1907.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Proceedings by Walter S. Clarkson for the establishment of a drain to which William H. Wood and others filed objections. From an order sustaining the same, petitioner appeals. Affirmed.Chase Harding, for appellant. Clyde H. Jones and John B. Murphy, for appellees.

HADLEY, C. J.

Under the drainage act of 1885 (Acts 1885, p. 129, c. 40), section 5622, Burns' Ann. St. 1901, as amended in 1903 (Acts 1903, p. 504, c. 232), commonly known as the “Circuit Court Act,” appellant began this proceeding for the construction of a drain. In due season certain owners of land affected by the proposed drain filed a remonstrance in these words: “The undersigned landowners, whose lands are reported as affected, respectfully remonstrate against the report of the drainage commissioners herein, for the following reasons: *** Third. That it will not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits to the lands reported affected thereby.” The first and second grounds of remonstrance are omitted because the first was dismissed and the second found by the court in favor of appellant, and hence he could not have been injured by any ruling of the court on its sufficiency. The remonstrance was filed on June 3, 1905. On September 4, 1905, appellant filed a motion to strike out the remonstrance, and on October 10, 1905, appellees, without action by the court on the motion to strike out, moved the court for leave to amend the remonstrance (so far as here material) by inserting in the second introductory line, after the word “affected” the words “separately and severally,” so as to make it read thus: “The undersigned landowners whose lands are reported as affected, separately and severally respectfully remonstrate,” etc. The court, over appellant's objection, permitted the amendment to be made, which action of the court presents the principal question arising in this appeal. There was a trial by the court upon the third ground of remonstrance, and a finding and judgment for the remonstrants, and the proceeding was dismissed.

Did the court err in permitting the amendment to the remonstrance? The statute provides (section 5625, Burns' Ann. St. 1901) that 10 days, exclusive of Sundays, shall be allowed to any owner of lands affected by the work proposed to remonstrate against the report of the commissioners, and the eighth ground of remonstrance specified is in these words: “That it will not be practicable to accomplish the proposed drainage without an expense exceeding the benefits.” It is argued on behalf of appellant that in a drainage proceeding which is founded on a specific statute for a particular purpose the right of amendment does not exist, as under the Civil Practice Code; that the right of remonstrance being statutory must be exercised strictly within the terms of the statute, and hence the court has no power to entertain a remonstrance that is not made fully complete and filed within 10 days from the filing of the commissioners' report. In support of his position appellant cites Hayes v. Tippy, 91 Ind. 102, wherein this court by Howk, J., speaking of an objector's application to file a remonstrance after the expiration of the time allowed, and which filing had been delayed by personal illness, said: “We are of the opinion that the provision of the Civil Code, for relief against judgments, etc., are wholly inapplicable to such a proceeding as the one under consideration.” To the same effect see Dukes v. Working, 93 Ind. 502, by the same justice. It is said in the former opinion that a drainage proceeding is in no proper sense a civil action, and that recourse to the Civil Code can only be had when granted by the special statute.

But it is manifest from subsequent decisions, as we shall hereafter see, that the court has receded from the narrow grounds here stated. With respect to amending a remonstrance there can be no doubt of the court's authority to permit amendments within the time allowed for the filing of the remonstrance, but the remonstrator, being required to bring himself within the terms of the statute, cannot, after the expiration of the time allowed for filing, be permitted, under the guise of amendment, to state a new ground of remonstrance, or make out of an inadequate and worthless paper, timely filed, a sufficient and valid remonstrance. Morgan Civil Township v. Hunt, 104 Ind. 590, 592, 4 N. E. 299;Gilbert v. Hall, 115 Ind. 549, 18 N. E. 28. In the first of these cases it was held that an unverified remonstrance filed within time cannot be validated by swearing to it after the expiration of the time allowed for filing. In the Gilbert Case it was held that the lodging of a remonstrance with the clerk, in his office, during a recess of the court, without request that it be filed, and without calling the court's attention to it cannot, after the lapse of the term, be admitted to the files as a statutory remonstrance. These cases rest upon the principle that an amendment must have something substantial to support it. There must be something to amend by. A paper which lacks some essential statutory element, and therefore good for nothing as a remonstrance, cannot be made a remonstrance, by amendment, after the end of 10 days from the time of filing of the commissioners' report.

But where a remonstrance, timely filed, tenders, in proper form, some issue for trial, but one...