Hazleton v. Priest

• Decision Date: 22 January 1896
• Docket Number: 17,541
• Citation: 42 N.E. 751,143 Ind. 368
• Parties: Hazleton v. De Priest
• Court: Indiana Supreme Court

42 N.E. 751

143 Ind. 368

Hazleton v. De Priest

No. 17,541

Supreme Court of Indiana

January 22, 1896

From the Knox Circuit Court.

The judgment is reversed and the cause remanded, with direction to sustain the demurrer to the petition, with leave to amend the same.

S. W Williams and Land & Gamble, for appellant.

W. A Cullop, L. C. Embree and C. B. Kessinger, for appellee.

OPINION

McCabe, J.

The appellee filed his application, or petition, before the board of commissioners of Knox county, at the June term thereof for 1890, for the establishment of a ferry, which petition reads as follows:

"To the board of commissioners of Knox county, Indiana:

"The undersigned hereby applies for a license to establish a ferry across White river, between the counties of Knox and Gibson and to be used as a landing place, being on the land of Jane Westfall, on the Knox county side, and at the foot of Main street on the Gibson county side.

A. B. De Priest."

Following the above paper, called the petition and application, is copied into the transcript the following paper:

"We, the undersigned citizens of Knox county, Indiana, would respectfully request your honorable board of commissioners of above county to grant a ferry license to A. B. De Priest, of Hazleton, Indiana, to maintain and operate a second or additional ferry across White river at said town of Hazleton, Indiana. We do crossing at the present Hazleton ferry, and we believe an additional ferry is necessary and will be of public convenience."

Signed by a number of names.

The board made an order establishing the ferry and granting the license asked for, and the appellant filed an affidavit showing that she was interested and aggrieved by such decision, and praying an appeal to the circuit court, which was granted on her filing an appeal bond.

In the circuit court the petition or application was objected to by demurrer, which was overruled. A trial by jury resulted in a verdict and judgment over appellant's motion in arrest thereof, establishing said ferry and licensing the appellee to keep and maintain the same. Error is assigned on the action of the circuit court in overruling the demurrer to the petition, and in overruling the motion in arrest of judgment.

The appellee, on November 7, 1895, entered a special appearance in this court for the sole purpose of moving to set aside the submission for want of notice of the appeal, which motion was made. The appeal being a vacation appeal, notice on the appellee was necessary. The notice issued by the clerk of this court was served on an attorney instead of appellee, and was, therefore, no notice. Tate v. Hamlin (Ind.), 149 Ind. 94, 41 N.E. 356. But on the same day this motion was made, appellee filed a brief fully discussing the merits of the appeal, before any action on his motion was had. Such action on his part is a waiver of the objection to the jurisdiction over his person. Elliott App. Proced., section 577, and authorities there cited. The motion to set aside the submission is therefore overruled.

It is, however, earnestly insisted by the learned counsel for the appellee, that the demurrer was not sufficient in form to question the sufficiency of the petition or application, and that the defects therein were cured by the verdict.

The same degree of strictness in pleading is not required in courts of county commissioners, as in courts of general superior jurisdiction. Board, etc., v. Adams, 76 Ind. 504; Board, etc., v. Hon, 87 Ind. 356; Board, etc., v. Ritter, 90 Ind. 362; Duncan v. Board, etc., 101 Ind. 403.

Enough is stated in the application to show that the stream across which it is sought to establish a ferry is not on the State line, but it is affirmatively shown that the stream is the county line between Knox and Gibson counties. Therefore the case is not governed by section 6591, R. S. 1894 (R. S. 1881, section 4871), which applies only to cases "of any streams running through or bounding on any county in this State, to and from any points without the limits of this State."

The facts that are stated in the application show that the case falls within and is governed by section 6597, R. S. 1894 (R. S. 1881, section 4877), which provides that:

"When any river or creek shall be the boundary between two counties, any person, persons or corporation holding lands on either side of said river or creek, who shall desire a public ferry across the same, shall apply to the board of county commissioners for the county in which such lands lie, who are hereby authorized to establish such ferry from the land of such applicant to the opposite side; and in such case a certified copy of the order establishing such ferry shall be transmitted to the auditor of the county on such opposite side, at the expense of such applicant; and, thereupon, such...