Furness v. Brummitt

• Decision Date: 10 October 1911
• Docket Number: No. 7,607.,7,607.
• Citation: 95 N.E. 1114,48 Ind.App. 442
• Parties: FURNESS v. BRUMMITT et al.
• Court: Indiana Appellate Court

48 Ind.App. 442

95 N.E. 1114

FURNESS

v.BRUMMITT et al.

No. 7,607.

Appellate Court of Indiana, Division No. 1.

Oct. 10, 1911.

Appeal from Superior Court, Porter County; Chas. H. Truesdell, Judge.

Action for an injunction by Albert W. Furness against William Brummitt and another. Dismissed as to the other defendant, and judgment for defendant Brummitt, and plaintiff appeals. Affirmed.N. L. Agnew, for appellant. H. H. Loring, for appellee.

FELT, P. J.

The facts pertinent to the question presented for decision by this appeal are that on June 30, 1906, the appellee Brummitt filed in the office of the auditor of Porter county, Ind., his petition for the drainage of certain lands belonging to himself and others, averring that the drain would not exceed two miles in length, and would not cost to exceed $300, which petition was by the Auditor referred to the county surveyor; that on July 10, 1906, the surveyor filed his report thereon, which report was on file when the board of county commissioners convened on August 6, 1906; that said board “by agreement of the parties” set the same for hearing specially on August 11, 1906, which time was after the expiration of the August term of the commissioners' court, and in vacation; that on said day “the board met as per adjournment” at their regular place of meeting, and proceeded to hear and determine all questions relating to said drainage petition, and after finding that due notice had been given, and considering certain remonstrances, including that of appellant, by agreement of the parties approved said report, confirmed the assessments as modified, established the ditch, and referred the same to Alfred R. Putnam, county surveyor, for construction; that appellant's land was assessed $10 and he was present when the order of August 11, 1906, was made by the board of commissioners; that thereafter appellant appealed to the Porter superior court, which appeal was dismissed by the court, and thereupon appellant filed suit in said superior court against appellee and said surveyor to enjoin the construction of said ditch, alleging that the order of the board of commissioners entered on August 11, 1906, was void because the board had no power to adjourn from August 6, to August 11, 1906, to consider and pass upon the petition and remonstrances in said proceeding; that no notice of the convening of the special session of said board had been given, and the board was not legally in session on August the eleventh and the order then made was void; that on June 25, 1907, this suit was tried, and the superior court of Porter county rendered judgment enjoining the construction of said ditch under the order of August 11th; that on July 1, 1907, the appellee appeared before said board of commissioners while in legal session, called up said proceeding, made known the action of the superior court, and thereupon said board set the hearing of the report of the engineer and the remonstrances in said proceeding for the first Monday in August, 1907, and notified all parties affected thereby of the time and place of hearing; that on Monday August 5, 1907, the board took up the hearing of said report, including the remonstrance of appellant filed on July 16, 1906; that the appellant appeared before said board and filed motion praying for a dismissal of appellee's petition and the report thereon, on the ground that the commissioners then had no jurisdiction over said petition and report and no authority to hear and determine the same, which motion was overruled by the board; that thereupon the board proceeded to hear the evidence on said report and remonstrances, in the presence of appellant, and, after hearing the same, made an order confirming the assessments shown in the report, establishing the ditch and appointing Guy F. Stinchfield, county surveyor, construction commissioner. No appeal was taken from this order, but on September 9, 1907, appellant filed suit in the Porter superior court against appellee, Brummitt, and Guy F. Stinchfield, to enjoin them from constructing said ditch as ordered by the board on August 5, 1907. The complaint was dismissed as to Stinchfield. Appellee Brummitt thereupon filed answer in two paragraphs, the first of which was a general denial. The second set up in detail the facts of all the proceedings in both courts. A demurrer for want of facts was filed to the second paragraph of the answer, and was overruled. The court found for appellee Brummitt that appellant should take nothing by his complaint, and rendered judgment accordingly. A motion for a new trial was filed and overruled.

The errors assigned present the question that the finding and judgment of the court is not sustained by sufficient evidence. The gist of appellant's contention is that after the judgment of the superior court was rendered on June 25, 1907, enjoining the construction of the ditch, there was no proceeding pending before the board of commissioners, nothing was before...