Demaree v. Johnson

Decision Date07 April 1898
Citation49 N.E. 1062,150 Ind. 419
PartiesDEMAREE et al. v. JOHNSON et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Johnson county; William J. Buckingham, Judge.

Action by William W. Demaree and others against Grafton Johnson and others, constituting the board of commissioners, to set aside an election, and a levy of taxes thereunder. From a judgment for defendants, plaintiffs appeal. Reversed.

Miller & Barnett, for appellants. T. W. Woollen, Overstreet & Overstreet, Gavin, Coffin & Davis, and John V. Oliver, for appellees.

HOWARD, C. J.

The questions discussed on this appeal relate to the voting by a township of aid to a railroad under provisions of section 5340, Rev. St. 1894 (section 4045, Rev. St. 1881), and following sections. The board of commissioners of Johnson county, over the remonstrance of appellants, found that on December 21, 1894, the voters of Pleasant township, in said county, at an election duly held for that purpose, decided, by a majority of 53 votes, that a tax of $34,000 should be levied in said township in aid of the construction of the Indianapolis, Greenwood & Franklin Railroad. Thereupon the board ordered the levy of a tax in pursuance of the provisions of the statutes above cited.

It is first contended by appellees that the record shows no appeal to the circuit court from this action of the county board; and they move for the dismissal of the appeal to this court for the reason that “no appeal bond was filed by the appellants with the auditor of Johnson county, nor was any bond approved by said auditor, as required by law, for the taking of an appeal from the order of the board of county commissioners.” Counsel cite Shirk v. Moore, 96 Ind. 199. which decides that, if no appeal bond is filed with the auditor, the appeal may be dismissed in the circuit court. A like decision was made in Crumley v. Hickman, 92 Ind. 388. In those cases, however, the objection was taken in the circuit court. Here there is nothing to show that any motion was made in the trial court to dismiss the appeal, or that any suggestion was there made that no appeal bond had been filed. It is provided in section 7860, Rev. St. 1894 (section 5773, Rev. St. 1881), that an appeal from the county board to the circuit court shall be taken “by the appellant filing with the county auditor a bond.” But there is no requirement that this bond, or a copy thereof, shall be made a part of the record in the circuit court. The succeeding section (section 7861, Rev. St. 1894; section 5774, Rev. St. 1881) provides that, “within twenty days after the filing of such appeal-bond, the auditor shall make out a complete transcript of the proceedings of said board relating to the proceedings appealed from, and shall deliver the same, and all the papers and documents filed in such proceeding, and the appeal-bond to the clerk of the court to which the appeal is taken.” All that needs to appear, then, in the auditor's transcript, is a copy of the proceedings of the board. The bond is no part of those proceedings, but is simply to be transmitted to the clerk with the other papers and documents. In the absence of any showing to the contrary, and of any objection taken in the court below, we must presume that the bond was filed with the auditor and delivered to the clerk as required by the statute, and that the court therefore rightfully assumed jurisdiction of the appeal from the county board.

In the circuit court the appellants amended and refiled their remonstrance against the order of the board. To the first, second, third, fourth, eighth, ninth, tenth, eleventh, and twelfth specifications of the remonstrance the court sustained a demurrer; and ...

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4 cases
  • Arras v. Reg'l Sch. Dist. No. 14
    • United States
    • Connecticut Supreme Court
    • 20 Octubre 2015
    ...a full and free express of their will at the election"); Weisgerber v. Nez Perce County, supra, 675 (citing cases); Demaree v. Johnson, 150 Ind. 419, 426, 50 N.E. 376 (1898) (defective notice of special election does not invalidate election if voters had actual notice); Dishon v. Smith, 10 ......
  • Arras v. Reg'l Sch.
    • United States
    • Connecticut Supreme Court
    • 20 Octubre 2015
    ...have held that actual notice can cure the failure to comply strictly with such requirements. See, e.g., Demaree v. Johnson, 150 Ind. 419, 424-26, 50 N.E. 376 (1898) (special election was valid when someone other than sheriff posted ten statutorily required copies of notice of special electi......
  • State ex rel. Linthicum v. Bd. of Com'rs of Vanderburgh Cnty.
    • United States
    • Indiana Supreme Court
    • 29 Marzo 1911
    ...the rights of property.” State ex rel. v. Board (1906) 166 Ind. 162, 76 N. E. 986;Garrigus v. Board (1872) 39 Ind. 66;Demaree v. Johnson (1898) 150 Ind. 419, 49 N. E. 1062, 50 N. E. 376;Voss et al. v. Waterloo Water Co. (1904) 163 Ind. 69, 71 N. E. 208, 66 L. R. A. 95, 106 Am. St. Rep. 201,......
  • State ex rel. Linthicum v. Board of Commissioners of County of Vanderburgh
    • United States
    • Indiana Supreme Court
    • 29 Marzo 1911
    ... ... rel., v. Board, etc. (1906), 166 Ind. 162, 76 ... N.E. 986; Garrigus v. Board, etc. (1872), ... 39 Ind. 66; Demarree v. Johnson (1898), 150 ... Ind. 419, 49 N.E. 1062; Voss v. Waterloo Water ... Co. (1904), 163 Ind. 69, 66 L. R. A. 95, 106 Am. St ... 201, 71 N.E. 208, and ... ...

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