Crow v. Evans

• Decision Date: 10 December 1912
• Docket Number: 22,009
• Citation: 100 N.E. 8,178 Ind. 661
• Parties: Crow v. Evans et al
• Court: Indiana Supreme Court

100 N.E. 8

178 Ind. 661

Crow v. Evans et al

No. 22,009

Supreme Court of Indiana

December 10, 1912

From Warren Circuit Court; J. T. Saunderson, Judge.

Petition by Ira Evans and others to establish a drain. From a judgment dismissing the remonstrance of Benjamin F. Crow and others Benjamin F. Crow appeals.

Appeal dismissed.

John W Sutton and Victor H. Ringer, for appellant.

Stansbury & Billings, for appellees.

OPINION

Morris, J.

Appellees filed their petition in the Warren Circuit Court, praying for the establishment of a public drain through certain described lands located in Warren county. Appellant, with others not named in the petition, appeared at the proper time and filed a general remonstrance against the construction of such drain, under the proviso of § 3 of the drainage act of 1907 (Acts 1907 p. 508, § 6142 Burns 1908), which requires the dismissal of a drainage petition where a remonstrance is filed, signed by two-thirds in number of the landowners named as such in the petition, or who may be affected by any assessment or damages.

A trial of the issue tendered by the remonstrance resulted in a finding that it was not signed by two-thirds in number of the persons affected, and a judgment that the same should be dismissed. Appellant filed a motion for a new trial, which was overruled. From the judgment dismissing the remonstrance this appeal is prosecuted.

Appellees have filed a motion to dismiss this appeal, for the alleged reasons, (1) that no right of appeal from such order is conferred by the drainage act of 1907, and (2) that the judgment is not a final one under § 671 Burns 1908, § 632 R. S. 1881, authorizing appeals in civil actions. Appellees are correct in their contention. The drainage act (Acts 1907 p. 508, § 6140 et seq. Burns 1908) contains no provision referring to appeals, except that found in § 4 (§ 6143 Burns 1908), which provides that "the order of the court approving and confirming the assessments, and declaring the proposed work of drainage established shall be final and conclusive, unless an appeal therefrom to the supreme court be taken," etc. It is evident that this provision does not contemplate an appeal before the making of the order establishing the proposed drain.

It is also evident that the judgment appealed from is not a final one within the meaning of § 671, supra. This statute contemplates one which makes a final disposition of the subject-matter of the litigation as to all parties, and puts an end to all the issues arising between them regarding the subject-matter of the action, to the full extent of the power of the court to dispose of the same. Terre Haute etc., R. Co. v. Indianapolis, etc., Traction Co. (1906), 167 Ind. 193, 78 N.E. 661; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 82 N.E. 461; ...