Good v. Burk

• Decision Date: 29 May 1906
• Docket Number: No. 20,675.,20,675.
• Citation: 77 N.E. 1080,167 Ind. 462
• Parties: GOOD et al. v. BURK.
• Court: Indiana Supreme Court

167 Ind. 462

77 N.E. 1080

GOOD et al.

v.BURK.

No. 20,675.¹

Supreme Court of Indiana.

May 29, 1906.

Appeal from Circuit Court, Clinton County; Saml R. Artman, Special Judge.

Petition by George M. Good and others to the board of county commissioners of Clinton county for an appropriation by Center county to aid in the construction of an interurban street railroad. Samuel W. Burk, on his application, was made a defendant. From an order of the circuit court, made on appeal from the board of commissioners, dismissing the petition, the petitioners appeal. Reversed, with instructions to the circuit court to dismiss the appeal to it from the board of commissioners.Jas. V. Kent, Jno. C. Farber, and D. S. Holman, for appellants. Asa H. Boulden and Martin A. Morrison, for appellee.

MONKS, J.

This proceeding was brought before the board of commissioners of Clinton county by appellants, more than 25 freeholders of Center township in said county, asking said township to make an appropriation of money to aid the Tipton, Frankfort & Attica Traction Company, an interurban street railroad company, organized under the laws of this state, in constructing its railroad in and through said township, subject to certain conditions in regard to the construction and equipment of its principal power house and machine shops. The proceeding was brought under the act of 1869, and acts amendatory thereof and supplemental thereto. Acts 1869, p. 92, c. 44; section 5340 et seq., Burns' Ann. St. 1901; Acts 1903, pp. 233-237, c. 134. Appellee was on his application made a defendant by order of the board of commissioners. Such proceedings were had that said board of commissioners found for the petitioners and ordered that the question of making said appropriation of money by said township be submitted to the voters of said township, and fixed a day for said election to be held as provided in sections 5341-5350, Burns' Ann. St. 1901. From this order appellee appealed to the court below, where appellants filed a written motion to dismiss said appeal, for the reason that the order of the board from which the appeal was taken was an interlocutory order, and not a final judgment that ended the proceeding before the board. The court below overruled said motion, and on its own motion dismissed said proceeding, and rendered final judgment against appellants. The errors assigned call in question the action of the court (1) in overruling appellants' motion to dismiss said appeal; (2) in dismissing the proceeding on its own motion.

Appellee claims that this court has no jurisdiction of the appeal because all the parties to the judgment of the court below are not shown by the record to be parties to this appeal, citing Ewbank's Manual, §§ 144, 146. Appellee in his brief says that this contention rests on the fact “that in the court of the board of commissioners and in the circuit court, many of the petitioners, now appellants, appeared only by initials, or by copartnership names, or by nicknames, and there is nothing in the entire record up to and including the final judgment of the circuit court to amend or correct this defect.” It is true that many of the petitioners, in signing the petition, signed their Christian names by the initial letters only, and that in a few cases firm names were signed. In this court, however, the full names of all the appellants are given in the assignment of errors, and it is alleged in the assignment of errors that said appellants “are the same and identical persons who signed the petition filed in the commissioner's court in this cause.” The objection to the assignment of errors is not tenable. The proceeding before the board of commissioners and in the court below was not void on account of the manner in which many of the appellants signed the petition. Meyer v. Wilson (this term) 76 N. E. 748, and cases cited.

Appellee contends that the appellants who signed their Christian names to the petition by the initial letter only had no standing in the court below, and could make no motion and take no exceptions to any ruling of the court thereon, and that, as the motion to dismiss the appeal in the court below was the joint motion of all the petitioners, the exception taken by said petitioners to the ruling of the court thereon was ineffectual as to those who had no standing in court, and was therefore ineffectual as to all. The statute under which this proceeding was brought only requires that the petition be “signed” by 25 freeholders of the township of such county, etc. Section 5340 Burns' Ann. St. 1901. Nothing is said as to the manner of signing said petition. It was held by this court in Collins v. Marvil, 145 Ind. 531, 44 N. E. 487, that the signature of a remonstrant under section 9 of the law known as the “Nicholson Law” was sufficient if he signed his “surname in full and his Christian name by the initial letter.” See, also, Ferguson v. Smith, 10 Kan. 396; 14 Ency. Pleading & Prac. 274; 21 Am. & Eng. Ency. of Law (2d Ed.) 208, 209. While the petition was not rendered void or ineffective because not signed by the full Christian name as well as the surname of each petitioner, it may be true that, by raising the question in a proper manner and form at the proper time, appellee would have been entitled to have the full Christian name and surname of each petitioner entered of record as a party plaintiff. Hopper v. Lucas, 86 Ind. 43, 49. It does not appear that any objection was raised before the board of commissioners or in the circuit court as to the manner in which the petition was signed, or that any question was raised or presented in regard to the same. It is too late to present the question now, for the reason that, unless such questions are...