Hart v. Scott
| Decision Date | 28 May 1907 |
| Docket Number | 20,939 |
| Citation | 81 N.E. 481,168 Ind. 530 |
| Parties | Hart v. Scott |
| Court | Indiana Supreme Court |
From Fulton Circuit Court; O. F. Montgomery, Special Judge.
Drainage petition by Roy E. Hart, against which Emmet H. Scott remonstrates. From a judgment for remonstrator, the petitioner appeals.
Reversed.
Arthur Metzler, for appellant.
Holman & Stephenson, for appellee.
This proceeding was instituted by petitioner, before the Board of Commissioners of the County of Fulton, to establish a public drain. Viewers were appointed, who reported in favor of the establishment of the work. Prior to the date set for the hearing, appellee appeared and filed a remonstrance in eight paragraphs. Such proceedings were afterwards had before the board that the drain was ordered established, and from this order appellee appealed to the circuit court. In the latter court appellant assailed the legal sufficiency and relevancy of the first, second, third and fourth grounds of remonstrance, by a motion to strike each of them out, and upon the overruling of his motion he reserved an exception. A trial was had, which resulted in a finding, and, over appellant's motion for a new trial, a judgment for appellee.
Error is based on the overruling of appellant's motion to strike out each of said four paragraphs of remonstrance, and on the overruling of his motion for a new trial.
The first question for our determination is whether appellant can predicate error upon the overruling of his motion to strike out. The statute is silent as to the method of questioning the sufficiency in law of a remonstrance in a drainage proceeding, but it is clear that in the circuit court the provisions of the civil code are to be resorted to, to supply omissions in the drainage statutes. Crume v. Wilson (1886), 104 Ind. 583, 4 N.E. 169; Bass v. Elliott (1886), 105 Ind 517, 5 N.E. 663; Robinson v. Rippey (1887) 111 Ind. 112, 12 N.E. 141; Chicago, etc., R. Co. v Summers (1887), 113 Ind. 10, 3 Am. St. 616, 14 N.E. 733. In the case last cited, which was a special proceeding, instituted by what the statute denominates a motion, it was held error to reject or strike out the defendant's answer thereto, since it tended to state a cause of defense, and therefore the plaintiff should have raised the question by demurrer.
If an answer is so palpably irrelevant that it is manifest that it could not be so amended as to make the facts therein stated in anywise germane to the controversy, it may be rejected on motion. Port v. Williams (1855), 6 Ind. 219; Clark v. Jeffersonville, etc., R. Co. (1873), 44 Ind. 248; McGrew v. McCarty (1881), 78 Ind. 496; Acme Cycle Co. v. Clarke (1901), 157 Ind. 271, 61 N.E. 561. A motion to strike out, however, is not designed to perform the office of a demurrer (Port v. Williams, supra; Burk v. Taylor [1885], 103 Ind. 399, 3 N.E. 129; Chicago, etc., R. Co. v. Summers, supra; Guthrie v. Howland [1905], 164 Ind. 214, 73 N.E. 259), nor is it a favored motion (Clark v. Jeffersonville, etc., R. Co., supra; Acme Cycle Co. v. Clarke, supra; Guthrie v. Howland, supra), and, since the overruling of it has no effect, other than to leave an irrelevant pleading in the record, we have held, and correctly so we think, that error cannot be predicated upon the action of the court in overruling a motion to strike out a pleading. Woodhams v. Jennings (1905), 164 Ind. 555, 73 N.E. 1088. The overruling of a motion to reject an answer does not, like the overruling of a demurrer, commit the court definitely to the theory that the pleading is good, so as to create a presumption that error has entered into the record, but the overruling of the motion means no more than that the court is not so satisfied of the irrelevancy of the pleading as to feel warranted in rejecting it summarily without have to amend, and therefore the party, if he does not see fit to demur, must offer his objection upon the hearing or by motion for a new trial. We hold that the cause cannot be reversed because of the overruling of the motion to strike out.
Appellant's counsel further contend for a reversal because of alleged errors in the admission and rejection of testimony. Opposite counsel seek to meet the propositions therein involved by the contention that the objections, the offers to prove, and the exceptions are not verified by the bill of exceptions. The court is of opinion that, under the act of 1897 (Acts 1897 p. 244, § 638a Burns 1901), which provides the only method of getting an original bill of exceptions of the evidence into the transcript (Mankin v. Pennsylvania Co. [1903], 160 Ind. 447, 67 N.E. 229), it is not necessary for the presiding judge to make any formal statement as to the authenticity of the record recitals concerning the objections, offers to prove and...
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