Collins v. Laybold

• Decision Date: 21 April 1914
• Docket Number: 22,624
• Citation: 104 N.E. 971,182 Ind. 126
• Parties: Collins et al. v. Laybold et al
• Court: Indiana Supreme Court

104 N.E. 971

182 Ind. 126

Collins et al. v. Laybold et al

No. 22,624

Supreme Court of Indiana

April 21, 1914

Rehearing Denied June 30, 1914.

From Vigo Circuit Court; Henry W. Moore, Special Judge.

Petition by Frederick Laybold and others, as directors of the Greenfield Bayou Levee Association, for the appointment of appraisers in a drainage proceeding. From a judgment of the circuit court dismissing the appeal of Micajah Collins and others from the order of appointment, this appeal is prosecuted.

Appeal dismissed.

Stimson Stimson, Hamill & Davis, for appellants.

William J. Whitaker, Peter M. Foley and Thomas F. O'Mara, for appellees.

OPINION

Cox, J.

On November 1, 1913, appellees, who are the directors of the Greenfield Bayou Levee Association, a corporation organized under the act of March 10, 1913 (Acts 1913 p. 433 §§ 8233b-8233 Burns 1914), and others, alleged to be a majority of the owners of the lands to be protected, drained and reclaimed, and two-thirds in acres of such lands, filed with the board of commissioners of Vigo County, as provided in § 13 (§ 8233n Burns 1914) of that act, their petition for the appointment of appraisers to assess benefits and damages resulting from the construction of a proposed system of land protection, drainage and reclamation, composed of a levee and five drains wholly in that county. Section 13, supra, of the act provides that such petition shall be sufficient and require the appointment of appraisers if it contains: "First. The location and a general description of each levee, dike, breakwater, dam, sewer, ditch, drain, diversion channel, lateral, syphon, pumping station or other work proposed to be done or maintained. Second. The estimated value of the entire cost of the proposed work and the approximate value of the cost of the work in each of the several counties involved, if the work extends into more than one (1) county. Third. The names, as petitioners, of either a majority of the owners of the lands to be protected, drained, reclaimed, or improved; or of the owners of two-thirds in acres of such land." On the same day that the petition in this proceeding was filed, the board of commissioners, after, as the entry recited, hearing proof, found the petition to be sufficient, that the facts stated therein were true and that it was signed by petitioners constituting a majority of the owners of the lands to be protected, drained, reclaimed and improved by the work proposed. Thereupon the board appointed appraisers to determine the public utility of the work and to assess benefits and damages as provided by the act. On November 8, 1913, the appraisers so appointed filed their acceptance and were sworn. On November 29, 1913, appellants appeared, filed their application for an appeal from the order appointing appraisers and in support thereof an affidavit that each of them owned lands which would be protected, drained, reclaimed and improved by the work proposed; that each had an interest in the matter of the appointment of appraisers and was aggrieved by the order of the board making such appointment. A transcript was filed in the office of the clerk of the circuit court, December 10, 1913. On January 24, 1914, appellees filed their motion in the circuit court to dismiss the appeal and on February 19, 1914, this motion was sustained and the appeal dismissed. From this action of the circuit court, appellants attempted to take a term time appeal and, in furtherance thereof, moved the court to fix the amount and penalty of the bond, designate the surety thereon and the time in which the bond should be filed. This the court declined to do, whereupon appellants tendered a bond and asked that it be filed and this the court also refused. On April 7, 1914, appellants filed in this court a transcript of the record showing the proceedings at length as above stated. On this record they assigned as errors the action of the circuit court in dismissing their appeal from the board of commissioners and in denying their term time appeal by refusing to fix or approve a bond therefor.

Ancillary to this attempted appeal appellants have filed their petition to this court praying that it issue to the trial judge a mandate requiring him to do such things as are necessary, which are, specifically stated, to enable appellants to perfect their appeal as a term time appeal. Actions for mandate can be begun in this court only when necessary for the exercise of its functions and powers as an appellate tribunal. Acts 1911 p. 541, § 1, § 1224 Burns 1914; State, ex rel. v. Biddle (1871), 36 Ind. 138; Walls v. Palmer (1878), 64 Ind. 493. The right of appellants to the relief thus asked at the hands of this court is primarily dependent on whether any right of appeal to this court exists from the action of the circuit court. If the case which appellants are attempting to present here for review is not appealable, this court has no jurisdiction and cannot issue the mandate prayed for.

A further provision of § 13, supra, is "That if any person or persons not mentioned in said petition claim to own land or lands which will be protected, drained, reclaimed, or improved by the proposed work, and that neither a majority of the owners of such lands nor of the owners of two-thirds of the acreage of such lands are petitioners therein, said person or persons so claiming may file with said board of commissioners an intervening petition, setting up said facts and said original petitioners may file an answer in general denial to said intervening petition, and such issue so formed shall be set for hearing and determination by said board of commissioners within ten (10) days from the filing of such answer. Any of the parties to said issue aggrieved by the action of said board thereon may appeal therefrom within five (5) days from the date of said action, and the auditor of said county is hereby given five (5) days after the date of said appeal within which to complete the transcript and file same, together with said intervening petition and answer thereto with the clerk of said court: Provided, The party so appealing shall be required to give bond, to be approved by the county auditor, for all costs that may be adjudged against him. The issues so formed by said intervening petition and answer thereto shall stand for hearing in the circuit court as provided for in section twenty-one (21) of this act: Provided, further, That in case the issues thus formed shall be determined against said intervening petitioner or petitioners, then and in that event, their said lands shall not be assessed for benefits by the appraisers in said proceedings. On proof that a majority of such land-owners in numbers, or the owners of two-thirds of such lands in acres, including any intervener found by the board or the court on appeal to be such owner, are petitioners, together with the other facts set out in the petition, it shall be the duty of said board of commissioners to appoint three (3) disinterested, resident freeholders as appraisers, no two (2) of whom shall be residents of the same county, unless there are only one (1) or two (2) counties involved. In case two (2) counties only are involved in the proposed work, then two (2) of the appraisers shall be appointed from the county in which the petition is filed." Section 15 (§ 8233p Burns 1914) of the act contains provisions relating to the determination of the question of public utility and that any party aggrieved by the final action of the board of commissioners on that question may appeal to the circuit court by filing a petition for appeal with the auditor of the county within five days from the action of the board, and the auditor is given five days within which to file the transcript with the clerk of that court. Section 21 (§ 8233v Burns 1...