Fleming v. Hight

• Decision Date: 19 April 1884
• Docket Number: 11,195
• Citation: 95 Ind. 78
• Parties: Fleming et al. v. Hight et al
• Court: Indiana Supreme Court

95 Ind. 78

Fleming et al. v. Hight et al

No. 11,195

Supreme Court of Indiana

April 19, 1884

From the Monroe Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to the court below to overrule the motion to dismiss the appeal.

E. K Millen and M. F. Dunn, for appellants.

J. W Buskirk and H. C. Duncan, for appellees.

OPINION

Niblack J.

The board of commissioners of the county of Monroe met in special session on the 25th day of April, 1883, to consider a petition which had been filed by Wallace Hight and five others, land-owners of the county and immediate vicinity with the county auditor, praying for the construction of a macadamized or gravel road on what is known as the Martinsville road, commencing at a point in said road on the corporation line on the north side of the city of Bloomington, in said county of Monroe, and running thence along or near said road to a point where said road intersects the north line of Bloomington township in that county.

After considering the petition, the board appointed three disinterested persons as viewers and an engineer to view the proposed route, and, in case they found the improvement petitioned for a work of public utility, to lay out and locate the same, fixing the 21st day of May then next ensuing as the day on which they were to assemble for that purpose.

At the succeeding June term of the board, the viewers thus appointed reported that they had examined the premises described in the petition and found the proposed work to be one of public utility; that they had laid out and marked the line of road which the petitioners desired to have constructed; that they had made assessments against the owners of the lands to be benefited, submitting a list of their assessments.

No one appeared to resist the report of the viewers, and nothing being shown against the recommendations which it contained, the board accepted and approved the report, and ordered the road, as laid out and marked by the viewers, to be established and constructed, defining its width and giving directions as to the manner of its construction.

Within the time limited for appeals in such cases, Stephen Fleming and Lewis Weymer filed an affidavit with the county auditor, stating that they were aggrieved by the decision of the board ordering the proposed macadamized or gravel road to be constructed, and enumerating the particular respects in which they were so aggrieved; also stating that they were interested in the proceedings which had taken place as above, in this, that they were owners of real estate, each of the value of $ 1,000, situate within one mile of the proposed line of road, which real estate would be affected by the construction of said road, and praying an appeal to the circuit court.

This affidavit being accompanied by an appeal bond, with surety to the satisfaction of the auditor, an appeal was accordingly granted.

In the circuit court the attorneys for the petitioners moved to dismiss the appeal upon the alleged grounds: First.That the appeal had been prematurely taken, that is, before the cause had been finally disposed of by the board of commissioners.Second.That the matters presented by the affidavit filed by the appellants were such as could not be tried in the circuit court.Third.That no questions, except those of a jurisdictional character, were presented by the record, and that, by reason of the non-appearance of the appellants to the proceedings before the board of commissioners, all objections to the questions thus presented had been waived.Fourth.That as the appellants did not appear before the board of commissioners, their affidavit and appeal bond...