Ford v. Ford

• Decision Date: 10 March 1887
• Citation: 10 N.E. 648,110 Ind. 89
• Parties: Ford v. Ford and others.
• Court: Indiana Supreme Court

110 Ind. 89

10 N.E. 648

Ford

v.Ford and others.

Supreme Court of Indiana.

March 10, 1887.

Appeal from circuit court, Kosciusko county.A. G. Wood and Brubaker & Bro., for appellant. James W. Cook and W. D. Widaman, for appellees.

MITCHELL, J.

This was a proceeding for the establishment of a drain. It was commenced by petition to the board of commissioners of Kosciusko county, at its June session in 1882. Viewers were appointed, and, after their report was filed, notices of the pendency of the petition, and of the time set for the hearing thereof, were posted by the county auditor. At the time appointed for the hearing, the appellant, Calender Ford, appeared, and filed a remonstrance, assigning the specific causes of objection. Of these the sixth and seventh were, respectively, (1) that there had been no notice given by the auditor of the pendency of the petition; (2) that there was no proof of posting notices as required by law. On motion of the petitioners, the above, with others of the specified grounds of remonstrance, were stricken out. Reviewers were thereupon appointed, and such further proceedings were taken as resulted in an order of the board confirming the reports and assessments made by the viewers, and in establishing the drain. Calender Ford appealed to the circuit court. Such proceedings were there had as that the reports and assessments previously returned to the board of commissioners were again confirmed, and the drain again established by the judgment and order of the court.

Numerous errors are assigned upon the record here, and discussed by appellant's counsel. The questions discussed are, however, not in the record, nor were they presented to the circuit court, so far as to present any question for decision there or here. For example, the sufficiency of the notice, and proof thereof, are assailed here, but it does not appear that any question involving either the notice or proof of posting was made in the circuit court. As the questions were not made there, they cannot be made here. As we have seen, these subjects were assigned as the sixth and seventh causes of remonstrance in the commissioners' court. These assignments were there stricken out by order of the board, and, so far as the record discloses, no further question was afterwards made upon either subject. Having appeared before the board, and, without objecting to the notice or the proof thereof, filed a remonstrance, the appellant could make no question upon the sufficiency of the notice, nor could such question be made by assigning it as one of the grounds of remonstrance against the drain. A remonstrance, in a proceeding like that under consideration, is in the nature of a pleading. Filing a remonstrance, like filing an answer or other pleading in a cause, constitutes an appearance in the case, and, so far as the remonstrance is concerned, is a waiver of all questions pertaining to the jurisdiction of the court over his person. Sunier v. Miller, 105 Ind. 393, 4 N. E. Rep. 867; Green v. Elliott, 86 Ind. 53;Schmied v. Keeney, 72 Ind. 309;Neff v. Reed, 98 Ind. 341;Slauter v. Hollowell, 90 Ind. 286. The case of Scott v. Brackett, 89 Ind. 413, is not applicable here; the essential difference being that in that case the notice was not sufficient, and there was no appearance by the party who subsequently challenged the proceedings. So in respect to the validity and formality of the report of the viewers. The formality of the report was not challenged in any proper manner.

These questions were sought to be presented by assigning them as...