Goodrich v. Stangland

• Court: Indiana Supreme Court
• Writing for the Court: Dowling, J.
• Citation: Goodrich v. Stangland, 58 N.E. 148, 155 Ind. 279 (Ind. 1900)
• Decision Date: 03 October 1900
• Docket Number: 18,632
• Parties: Goodrich et al. v. Stangland et al

58 N.E. 148

155 Ind. 279

Goodrich et al. v. Stangland et al

No. 18,632

Supreme Court of Indiana

October 3, 1900

From the Noble Circuit Court.

Affirmed.

B. E Gates and L. W. Welker, for appellants.

E. K Strong and H. G. Zimmerman, for appellees.

OPINION

Dowling, J.

This was a proceeding, under the statute, for the drainage of certain lands in Noble and Whitley counties. The petition was filed in the circuit court of Noble county. § 5623 Burns 1894. It was properly docketed, and notice was given to the owners and occupants of the several tracts of land, described in the petition, in the manner prescribed by law. No remonstrance having been filed, and the court deeming the petition sufficient, an order was made referring the same to the drainage commissioners. Such commissioners made their report to the court, from which it appeared that lands were named in said report as affected by the proposed work which were not named in the petition. The court fixed a time for hearing the report, and the petitioners gave notice to the owners of such lands of the filing of the report, and the date fixed for the hearing. The appellants entered a special appearance, and moved to set aside the service of the notice on them, and to strike out the notices. They also filed motions to dismiss the petition, and to strike out the report of the drainage commissioners. Both motions were overruled. Appellants next filed their separate remonstrances, and appellees moved to strike the remonstrances from the files. Pending the latter motion, and after it had been submitted for determination, the appellants asked for a change of judge, and filed affidavits in support of the motion. The application for a change of judge was denied. The court struck out the remonstrances of the appellants, and rendered judgment agreeably to the provisions of the statute, declaring the proposed work established, approving the assessments as made by the commissioners, and assigning the construction of the work to a disinterested freeholder of the county. After the court had established the said work, the appellants filed a motion in arrest of the judgment, which was overruled. The rulings of the court upon the several motions, with the exceptions thereto, are properly presented by the record.

The assignment of errors calls in question the jurisdiction of the court over the persons of the appellants and the subject of the action, and it denies the validity of the rulings upon the several motions for a change of judge, the striking out of the remonstrances, and in arrest of judgment. Objection is made by appellees that the assignment of errors is defective on account of its failure to set out the full names of the parties, and because it omits the names of some of the persons against whom the judgment was rendered, and the dismissal of the appeal is demanded for these reasons. Only the initials of the Christian names of many of the appellees are given, and this is a violation of rule six of this court, and in most cases is a sufficient cause for the dismissal of the appeal. The following are some of the names by which a portion of the appellees are designated: "S. S. Bonar," "J. R. Young," "A. F. Evans," "C. D. Evans," "A. W. Potts," "J. S. Sterling," "E. W. DePew," "J. H. Kitt," "J. M. Richmond." This method of designating parties has frequently been disapproved by this court, both in civil and criminal cases. In this case, however, as the appellants were named in the assignment of errors, just as they are named in the pleadings filed by them, we think rule six will not render the assignments defective.

In answer to the objection that all of the persons against whom the judgment was rendered are not joined as appellants, it is said by counsel that this was a term-time appeal, and that the omission of the names was expressly authorized by the act of 1895 (Acts 1895, p. 179, § 647a Burns Supp.) Ewbank's Manual, § 126, note 1. This statement is not borne out by the record. Silas Goodrich, one of the remonstrants, took an appeal in term, and filed an appeal bond as required by the court. But the condition of the bond was that Goodrich would prosecute the appeal, and pay the judgment and costs which might be rendered, or affirmed, against him. This bond did not, either in terms, or in legal effect, inure to the benefit of the other judgment defendants. The filing of an appeal bond is an essential step in perfecting a term appeal. § 650 Burns 1894; McKinney v. Hartman, 143 Ind. 224, 42 N.E. 681; Ewbank's Manual, § 9. As the appellants, other than Goodrich, filed no bond, the appeal as to them was a vacation appeal, and they were required to join all the parties to, and affected by, the judgment. Abshire v. Williamson, 149 Ind. 248, 48 N.E. 1027; Michigan Mutual Ins. Co. v. Frankel, 151 Ind. 534, 50 N.E. 304.

The appearance of the appellees operated as a waiver of notice, but it did not cure the omission of the names of the persons who should have been joined as appellants, and named in the assignment of errors. Because of the omission of the names of the persons who should have been joined as appellants, the appeal must be dismissed as to all of the appellants, excepting Silas Goodrich.

The points made on behalf of the appellant Goodrich, are simply questions of practice. Jurisdiction over his person is denied on the ground that the notice served on him by the petitioners did not contain a description of the lands assessed for benefits. In our opinion, the notice was sufficient in form. The statute required that notice should be given to the owners or occupants of lands named in the report of the drainage commissioners, which were not named in the petition, in the same manner as notice was required to be given of the filing and docketing of the petition, and that it should state the time for hearing the report. § 5624 Burns 1894.

The requisites for the notice of the filing and docketing of the petition were that it should state (1) the route of such drain as described in the petition; (2) the fact of the filing and pendency of the petition, and (3) when the same should be docketed. § 5624 Burns 1894.

The statute did not require either the original notice, or the subsequent notice to the owners or occupants of lands named in the report of the commissioners which were not named in the petition, to set forth a description of the lands assessed for benefits. The form given in the statutes (§ 5654 Burns 1894) does contain a description of the lands. But this form is found in the act of 1881, while the statute prescribing the form and contents of the notice in question is the act of April 6, 1885. It is to the latter act that we must look to ascertain what the notice should state. The motion to set aside the service,...