Conrad v. Hausen

• Decision Date: 09 October 1908
• Docket Number: No. 21,117.,21,117.
• Citation: 85 N.E. 710,171 Ind. 43
• Parties: CONRAD et al. v. HAUSEN et al.
• Court: Indiana Supreme Court

171 Ind. 43

85 N.E. 710

CONRAD et al.

v.HAUSEN et al.

No. 21,117.

Supreme Court of Indiana.

Oct. 9, 1908.

Appeal from Circuit Court, Newton County; Chas. W. Hanley, Judge.

Proceedings by Charles Hausen and others for the improvement of highways by taxation, in which Platt M. Conrad and others filed motions and a remonstrance. From a judgment ordering the improvement, Platt M. Conrad and others appeal. Affirmed.T. B. Cunningham, for appellants. H. C. Rogers, A. Halleck, and U. Z. Wiley, for appellees.

MONKS, J.

This proceeding was brought by appellees before the board of commissioners of Newton county in October, 1906, for the improvement of certain public highways in Lake township, in said county, by taxation, under sections 6788, 6789, et seq., Burns' Ann. St. Supp. 1905 (sections 62, 63, et seq., c. 167, pp. 550, 551, Acts 1905). Appellants appeared before said board, and filed motions and a remonstrance, which were, after a hearing by said board, overruled, and an engineer and viewers appointed, as provided in section 66, c. 167, p. 552, Acts 1905, being section 7715, Burns' Ann. St. 1908 (section 6792, Burns' Ann. St. Supp. 1905). Such proceedings were had that said board of commissioners ordered an election, at which a majority of the votes cast were in favor of the improvement of said highways, and the board thereupon made an order establishing said work, as required by section 70 of said act of 1905 (Acts 1905, pp. 554, 555, c. 167, being section 7719, Burns' Ann. St. 1908 [section 6796, Burns' Ann. St. Supp. 1905]). From this judgment appellants appealed to the court below, where, upon a trial of said issues de novo, said court found in favor of appellees, and entered a final judgment thereon, and entered an order referring the case back to the board of commissioners, with directions how to proceed, as provided in section 123 of the act of 1905 (Acts 1905, p. 579, c. 167).

In the court below the appellants renewed their motion, made before the board, to set aside the notice given by the auditor of the filing of the petition and the day on which it would be heard, on the ground, stated in said motion, “that said notice posted and published was insufficient in law, for the reason that it did not set out a full copy of the petition filed in said cause.” Section 63 of the act of 1905 (Acts 1905, p. 551, c. 167), being section 6789, Burns' Ann. St. Supp. 1905, makes it the duty of the county auditor to give notice “setting forth a copy of such petition and the day upon which it will be presented to such board of commissioners.” It is not stated in said motion how or in what respect the petition set out in the notice was not a full copy of the petition filed in the cause. In this court appellants claim that it is not a “full copy,” because “the names signed to said petition are not set out in said notice.” Whether the omission of the names of the petitioners from the notice was pointed out by appellants before the board of commissioners and in the circuit court in aid of the ground set out in said motion, or as an independent reason for said motion, is not shown by the record. For all that appears from the record the attention of said courts was not called to said omission. It is a well-settled rule that objections must be specificallystated. As said in section 770, Elliott's App. Proc.: “Specification of the particular grounds or reasons upon which a party asks a court to make a ruling in his favor is necessary, *** to prevent a violation of the subsidiary doctrine that a party cannot urge one point in the trial court and another on appeal.” In section 775, Elliott's App. Proc., it is said: “The particular grounds of objection must be stated to the trial court, and the same objections brought before the appellate tribunal by the record.” See, also, section 777, Elliott's App. Proc.

In the class of cases to which this belongs it has also been held that grounds of objection must be set forth specifically, and not in general terms, or no question is presented. Meranda v. Spurlin, 100 Ind. 380, and cases cited; Higbee v. Peed, 98 Ind. 420;Anderson v. Baker, 98 Ind. 587;Updegraff v. Palmer, 107 Ind. 181, 183, 6 N. E. 353, and cases cited; Osborn v. Sutton, 108 Ind. 443, 447, 9 N. E. 410;Northern, etc., Co. v. Tyler (Ind.) 84 N. E. 828, 829, and cases cited. In Higbee v. Peed, supra, the court, in speaking of the rule that the particular cause of the objection should be set forth specifically (page 422) said: “To adopt any other practice would be to increase the liability of error in records on appeal to this court, and necessitate the reversal of judgments upon questions not presented below, and to which the attention of the trial court has been in no way directed.” If what is now urged in this court, so far as we know for the first time, “that the names of the persons signed to the petition were not set out in the notice,” had been inserted in said motion to set aside said notice as a ground therefor, the rule above stated would have been complied with, and the record would show, as the rules of appellate procedure require, that the objection urged here had been presented, considered, and ruled upon by the court below.

Waiving this question, however, we will consider the sufficiency of the notice on the ground, urged in this court, “that the names signed to the petition were omitted from the notice given by the auditor.” The notice given by the auditor contains enough of the petition to notify the taxpayers of the taxing district that such a proceeding has been commenced before the board of commissioners of the county, the public highways to be improved thereby, the character of the improvement, under what statute, and the day when the petition will be presented to the board of commissioners. This is as much, if not more, than the law and public policy of the state requires the notice to contain. Sections 321, 7705, 7712, 7714, Burns' Ann. St. 1908; section 1, p. 137, Acts 1907; sections 57, 65, pp. 548, 551, Acts 1905; section 319, Burns' Ann. St. 1901; section 6782, Burns' Ann. St. Supp. 1905; Jones v. Kohler, 137 Ind. 528, 531, 532, 37 N. E. 399, 45 Am. St. Rep. 215. But, even if the auditor committed an error by not including the names of the persons signed to the petition in said notice, said appellants, under section 57 of said act of 1905 (Acts 1905, p. 548, being section 7705, Burns' Ann. St. 1908 [section 6782, Burns' Ann. St. Supp. 1905]), cannot take advantage thereof, because they are not injuriously affected thereby. Dewey v. State, 91 Ind. 173, 179-181;Million v. Board, etc., Co., 89 Ind. 5, 16, 17;Poundstone v. Baldwin, 145 Ind. 139, 144, 44 N. E. 191.

On the day set for the hearing of said petition before the board of commissioners, appellees by leave of said board filed a separate paper, amending said petition, stating the width of the highway to be improved to be 54 feet, and giving the names by which they were known, that “there are fewer than 75 freehold voters in said Lake township, and that the highways sought to be improved are all regularly and legally established highways in said townships.” Appellants on the same day filed a demurrer to the amended petition, which was overruled by the board of commissioners. In the court below this demurrer was overruled, to which appellants excepted. This ruling is challenged by the assignment of errors. No error was committed by the court in overruling said demurrer, for the reason, if no other, that the grounds of demurrer assigned are unknown to our law. Section 344, Burns' Ann. St. 1908; section 342, Burns' Ann. St. 1901; Kemp v. Mitchell, 29 Ind. 163;Cincinnati, etc., R. Co. v. Washburn, 25 Ind. 259;Campbell v. Campbell, 121 Ind. 178, 179, 23 N. E. 81, and cases cited; Grubbs v. King, 117 Ind. 243, 245, 246, 20 N. E. 142, and cases cited; Martin v. Martin, 74 Ind. 207;White v. Sun Publishing Co., 164 Ind. 426, 427, 73 N. E. 890, and cases cited; Tenbrook v. Brown, 17 Ind. 410;Porter v. Wilson, 35 Ind. 348;Gordon v. Swift, 39 Ind. 212, and cases cited; State v. Katxman, 161 Ind. 504, 506, 69 N. E. 157, and cases cited; Thompson's Ann. Civ. Code, pp. 343, 348, § 110; Woolen's Trial Proc. § 1548.

Appellants, however, have in their assignment of errors called in question the sufficiency of the petition. It is urged that the petition is insufficient because it “seeks to bring the proceeding under the highway act of 1903 (Acts 1903, pp. 294-298, c. 165), which was repealed by the highway act of 1905 (Findling v. Foster [Ind.] 84 N. E. 529), and that they will be held to this theory of their petition.” Said act of 1903 (Acts 1903, p. 298, c. 166) provides that, when a township has not to exceed 75 freehold voters, the petition for the improvement under said act in such township is sufficient if signed by one-half or more of said freehold voters. Appellants claim that, as said amendment to the petition alleges that “there are fewer than 75 freehold voters in said township,” appellees must have intended said proceeding to be under said act of 1903.” It may be conceded that under the rule declared in Findling v. Foster, supra, cited by appellants, said act of 1903 (Acts 1903, pp. 294-298, c. 165) was repealed by said act of 1905. It is true, also, that when a case has been tried upon a certain theory in the trial court that theory must be adhered to on appeal. Oölitic Stone Co. v. Ridge, 169 Ind. 639, 83 N. E. 246. The record, however, shows that the court below did not try the case upon the theory that the proceeding was under said act of 1903, but upon the theory that it was under said act of 1905 (section 62 et seq., pp. 550-561, Acts 1905; section 6788 et seq., Burns' Ann. St. Supp. 1905); for it was alleged in the remonstrance filed by appellant that the petition was not signed by 50 freehold voters of said township, and the court found against appellant on said issue, and that the petition was signed by 50 freehold voters of...