Fleener v. Johnson
| Decision Date | 28 March 1906 |
| Docket Number | 5,786 |
| Citation | 77 N.E. 366,38 Ind.App. 334 |
| Parties | FLEENER ET AL. v. JOHNSON ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 19, 1906.
From Johnson Circuit Court; W. J. Buckingham, Judge.
Petition by John W. Johnson and others against which Aaron M. Fleener and others remonstrate. From a judgment for petitioners remonstrants appeal.
Affirmed.
W. S Shirley and W. A. Johnson, for appellants.
George W. Grubbs, for appellees.
Appellees, at the February term, 1904, of the Board of Commissioners of the County of Morgan, filed their petition for the incorporation of the town of Morgantown. Proof of survey, map, census and exhibition thereof as provided for in the statute relative to the incorporation of towns (§§ 4314-4322 Burns 1901, §§ 3293-3301 R. S. 1881) was made, "and the board having examined said petition and finding the same sufficient orders that an election be held on February 20, 1904." At the March term, on March 7, appellants appeared and moved to set aside the election theretofore held, and objected to the making of an order of incorporation, upon the stated ground that at the time of holding such election no order had been entered of record by said board ordering the same; that no record had been made showing the filing of said petition; that the requisite notice of said election was not given "as shown by the papers now on file," and that the petition was not sufficient to give the board jurisdiction. On March 8 the petitioners filed a motion asking that a nunc pro tunc entry be made showing the action actually taken by said board, as the same was shown by memoranda made by the board at the time. The motion was sustained and an extended and detailed entry made of such proceedings, appellant objecting thereto. Proof of an election held in conformity with said order having been made, a majority in favor of the incorporation of said town being shown, it was adjudged that the same be incorporated as prayed. From this judgment appellants appealed to the circuit court, where they appeared specially and moved to strike out all that portion of the record entered nunc pro tunc, for the reason that said entry was made without any notice. The motion was overruled, and the venue of the case was changed to Johnson county, where the appellants asked leave to amend the objections first made by them before the board of commissioners, by adding thereto an allegation that the election held as aforesaid was illegal and void, in that the ballots used were not furnished by the board of election commissioners of Morgan county, of which fact they aver they had no notice when such original objections were filed. The court denied the amendment. The cause was heard, a special finding of facts made, conclusions of law stated and judgment for the petitioners rendered thereon. The finding states that "the following facts have been agreed to by the parties in this cause and that they shall be considered as a part of the record in the case." Following it is a detailed statement of facts conforming to the requirements of the statute. Appellants filed their motion for a new trial, the third ground thereof being based upon the admission as evidence of the return made by the officials holding the election; the fourth ground, upon the action of the court in refusing to allow the election commissioners to testify that they did not prepare or cause to be prepared the ballots used at said election, and the fifth and sixth grounds, that the decision was not sustained by sufficient evidence and was contrary to law. This motion was also overruled and such action is assigned as error.
The motion to strike out made in the circuit court is based upon lack of notice. The entry to which it relates was made while the proceeding before the board was in fieri, and amounted to no more than an exercise of the inherent power to make the record conform to the action actually taken, in which case no notice is necessary. Fite v. Doe (1820), 1 Blackf. 127; McManus v. Richardson (1846), 8 Blackf. 100; Burnside v. Ennis (1873), 43 Ind. 411; Richardson v. Howk (1874), 45 Ind. 451; Ralston v. Lothain (1862), 18 Ind. 303; Layman v. Graybill (1860), 14 Ind. 166; Schoonover v. Reed (1879), 65 Ind. 313. The original objection was based not upon lack of action by the court but upon lack of record thereof so that the defect, if any did at the time exist, was a mere misprision of the clerk. Security Co. v. Arbuckle (1890), 123 Ind. 518, 521, 24 N.E. 329. Notice not being required there was no error in overruling a motion to strike out because of lack of notice. Treating the merits of the original objection as presented, the authorities above cited negative the contention that the court had no power to make its record conform to the order made. The power of the board of commissioners to make nunc pro tunc entries is established. Tombaugh v. Grogg (1896), 146 Ind. 99, 44 N.E. 994.
The court did...
To continue reading
Request your trial