Clouser v. Mock, 29594

CourtSupreme Court of Indiana
Citation239 Ind. 143,155 N.E.2d 745
Docket NumberNo. 29594,29594
PartiesMcAdoo W. CLOUSER, Wilma Clouser, Lula Beach Kenable, Ernest Heflin, Max Haskett, Bessie Stittsworth, Elsie McCarty, Minnie L. Decker, Howerd McClure, Cleon C. Forrest, John F. Beach, Nola D. Julius, Winona H. Spooner, Billie R. Balser, Robert Colson, Raymond Tragesser, Mary Osborne, Dalice E. Haskett, Harris B. Haskett, Maxine M. Land, Charline D. Conners, Board of Trustees of Curtisville Christian Church, Inc., Appellants, v. Robert A. MOCK, James Gunning, Ethel Commach, Clyde Haskett, O. B. Swinford, John Buckner, Lewis J. Richards, Superintendent of construction of the Robert A. Mock Drain, Ruth Keel, Treasurer of Tipton County, Indiana, Ray Thompson, Auditor of Tipton County, Indiana, Appellees.
Decision Date26 January 1959

Oliver D. Wheatley, Tipton, Compbell, Campbell, Malan ,& Kyle, Noblesville, for appellants.

Richard O. Regnier, Frank B. Russell, Tipton, for appellees.


This action arose out of proceedings in the trial court for the repair of an open public drain. Upon the filing of the preliminary report of the surveyor and viewers, the trial court fixed the 17th day of November, 1955 for a hearing thereon before the surveyor. Burns' § 27-113, 1946 Repl. On that date the appellants filed separate remonstrances or objections to the report. Thereafter, on November 22, 1955 the surveyor and engineer filed in the trial court a report of his final decision as to all changes made. On December 14, 1955 the court made the following record:

'More than ten days having elapsed since the filing of the supplemental report and no remonstrances having been filed, the report and the supplemental report of the surveyor are approved, the assessments, benefits and damages as reported are approved, confirmed and ordered certified for collection, and the work ordered. Referred to the surveyor for construction which report and supplemental report are as follows, * * *.'

Thereafter, on February 26, 1957, (over fourteen months later) the appellants filed a motion to modify the judgment which, in effect, asked the court to reverse its judgment and refer the previously confirmed report back to the surveyor and the viewers for reconsideration.

The appellants contend in their motion to modify the judgment, among other things, that the judgment is erroneous and 'void' because it was entered without any hearing on the remonstrances of the appellant and the judgment was incomplete in that it did not set out in the order book a detailed description by metes and bounds of the drainage system nor the plans and specifications with reference to its construction. Burns' § 27-112, 1948 Repl. provides that the court in drainage proceedings shall fix the date for hearing on the preliminary report and Burns' § 27-113, 1948 Repl. provides that the hearing shall be held by the surveyor. It reads in part as follows:

'Hearings on report of surveyor.--Upon the date fixed by the court, or the judge thereof in vacation, for the hearing on such report, the surveyor, or surveyors, if a joint ditch, shall be present at the clerk's office of the court of the county in which such proceedings are pending, and shall hear and determine all objections made to such apportionment and assessments. He may adjourn the hearing from day to day, or from time to time, or to any other suitable or available room in the court-house of such county, as may be deemed necessary, until all objections are heard. All persons interested shall take notice of any such adjournment without further notice. All objections to such apportionment and assessments shall be verified * * *.'

After the surveyor has heard objections, the above section further provides that he shall make a report of his final decision to the court as to any changes therein. Burns' § 27-114, 1948 Repl. then provides:

'Any owner of lands affected by the work proposed or reported, benefited or damaged, may remonstrate against the final decision of the surveyor to the court, or the judge thereof in vacation, where the petition was filed, within ten days, * * *.'

It is quite apparent that the appellants in this case did not follow the statutory procedure in presenting any remonstrance for the consideration of the court within 10 days after November 22, 1955, when the surveyor filed a report of his final decision.

The appellants complain that they were unaware that the surveyor filed his final report on November 22, 1955 and they had no actual notice of the running of the ten-day period within which to file a remonstrance. We recognize the statute does not direct that a definite time be fixed for the filing of the final decision of the surveyor nor that any notice of the filing be given to interested parties so that they may know when the ten-day period for filing remonstrances before the court begins to run. However, such changes in the law are for the legislature to make, not the courts.

During the time a court has jurisdiction of the parties in proceeding, they must keep themselves informed of the steps taken in the case and are bound by the court's action therein without special or additional notice.

'A party properly brought into court is chargeable with notice of all subsequent steps taken in the cause down to and including the judgment, although he does not in fact appear and has no actual notice thereof.' Flanders v. Ostrom, 1933, 206 Ind. 87, 97, 187 N.E. 673, 676; Burnside v. Ennis 1873, 43 Ind. 411, 414; also see: 66 C.J.S. Notice § 12, p. 648.

However, assuming the appellants had properly filed their remonstrance within due time in this case, they nevertheless must promptly present the claimed error to the trial court, giving it an opportunity to correct the same and thereafter, upon refusal, save the alleged error for consideration of this court on appeal. State ex rel. Barner et al. v. White Cir.Ct., Ind.1958, 147 N.E.2d 10.

The appellees have made a motion to dismiss this appeal on the ground that no alleged error was properly saved for presentation to this court; that the appellants did not bring this appeal within thirty days from the final judgment, as provided by statute, (Burns' § 27-117, 1948 Repl.) and that a motion to modify may not be used to extend time within which to take an appeal, nor to reopen issues once settled, after such lapse of time as took place in this case. City of Michigan City v. Williamson, 1940, 217 Ind. 598, 600, 28 N.E.2d 961; Blagetz v. Blagetz, 1941, 109 Ind.App. 662, 665, 37 N.E.2d 318.

On the other side, it is urged by the appellants that they are not appealing from the 'pretended' judgment of December 14, 1955, but they are appealing from the judgment 'overruling appellants' motion to modify said pretended judgment.'

It cannot be seriously contended that the 'pretended judgment' is void since it is undisputed that the court had jurisdiction of both the subject matter and the parties. Lucas v. Hawkins, 1885, 102 Ind. 64, 1 N.E. 358; Kleyla et al. v. Haskett et al., 1887, 112 Ind. 515, 14 N.E. 387; 30A Am.Jur., Judgments, sec. 16, p. 169.

We need not set out verbatim the motion to modify. It in substance asks that the judgment be vacated and set aside and that the court find that the report of the surveyor and viewers was not in due form; that it be referred back for amendments, and that the assessment against the appellants be cancelled and stricken out of the judgment. Appellants claim the report 'was defective in the following particulars, viz.:

'1. Report not verified.

'2. No finding as to public utility.

'3. No plans and specifications.

'4. No finding showing 'termini and route, location, character of the proposed work, etc.''

Under the statute outlining the procedure in a drainage case all these issues are presented to the court by way of a remonstrnace. Burns' § 27-114, 1948 Repl. Appellants nevertheless seek a review of the correctness of the judgment and the proceedings upon which it is based by a motion to modify the judgment and by serving a notice of the filing upon the appellees after the term has expired during which the judgment was rendered

The law is well settled that during term at which a judgment is rendered, the court has very broad powers on its own motion or upon that of any parties to modify, set aside or vacate its judgment. 49 C.J.S. Judgments § 229, p. 436; Tri-City Electric Service Co. v. Jarvis, 1933, 206 Ind. 5, 22, 185 N.E. 136; Livingston v. Livingston, 1921, 190 Ind. 223, 229, 130 N.E. 122; Ryon v.Thomas et al., 1885, 104 Ind. 59, 3 N.E. 653; Merrill v. Shirk et al., 1891, 128 Ind. 503, 505, 28 N.E. 95.

We need not consider in this case whether or not the filing of a motion during the term in which the judgment is rendered extends the time within which the judgment becomes effective and automatically extends the beginning of the running of the time within which an appeal may be taken, as in the case of a motion for a new trial. We point out however that the statute authorizes the filing and ruling on a motion for a new trial after term, and the rules of this court fix the running of the time for appeal accordingly. 1 We find no statute in that regard concerning motions to modify judgments. Burns' § 2-2403, 1946 Repl.; Rule 2-2, Supreme Court; Dawson et al. v. Wright, Mayor, etc., et al., 1955, 234 Ind. 626, 630, 129 N.E.2d 796; 30A Am.Jur., Judgments, sec. 652, p. 622

In this case the so-called motion to modify the judgment was filed after the term within which the judgment was rendered and notice served upon appellees at the time. It has been generally held that a case is no longer in fieri after the term has expired within which the judgment was rendered and after term there is no longer any authority or power on the part of the court to change its judgments under the common law. It must seek such power, if any, in the statutes. McIntosh v. Monroe et al., 1953, 232 Ind. 60, 63, 111 N.E.2d 658; Wagner v. McFadden,...

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  • Russell v. State
    • United States
    • Indiana Appellate Court
    • December 8, 1981
    ... ... Thereafter, the Indiana courts have traditionally possessed broad powers in "term time" to modify, set aside or vacate their judgments. Clouser v. Mock, (1959) 239 Ind. 143, 155 N.E.2d 745. See also 49 C.J.S. Judgments § 229, p. 436; Tri-City Electric Service Co. v. Jarvis, (1933) 206 Ind ... ...
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