Holman v. Robbins

• Decision Date: 16 September 1892
• Docket Number: 424
• Citation: 31 N.E. 863,5 Ind.App. 436
• Parties: HOLMAN ET AL. v. ROBBINS
• Court: Indiana Appellate Court

31 N.E. 863

5 Ind.App. 436

HOLMAN ET AL. v. ROBBINS

No. 424

Court of Appeals of Indiana

September 16, 1892

Petition for a rehearing overruled November 18, 1892

From the Fulton Circuit Court.

Judgment reversed.

M. A Baker, J. Rowley, J. H. Bibbler, G. W. Holman, and R. C Stevenson, for appellants.

S. Keith, P. M. Buchanan and O. F. Montgomery, for appellee.

OPINION

BLACK, J.

The appellants, George W. Holman and Julius Rowley, presented to the board of commissioners of Fulton county a claim for services amounting in the aggregate to $ 315. The board of commissioners, on the 19th of November, 1890, allowed the claim in full. The appellee, Alfred H. Robbins, appealed from the decision of the board, and on the 7th of January, 1891, filed in the office of the clerk of the court below a transcript.

The parties appeared in the court below on the 3d of February, 1891, and the appellants then moved to dismiss the appeal, assigning as grounds for the motion that the transcript did not disclose that Robbins was an authorized appellant; that it contained no record of any filing of an appeal bond or affidavit of the interest of Robbins; that it was not accompanied by any of the papers in the cause, and that nothing appeared as before the court except a certified copy of the bill of the appellants before the board of county commissioners and the order of the board allowing the same.

Pending this motion, on the 5th of February, 1891, the appellee filed his petition, or motion, for leave to file with the papers of the case all the papers and documents filed in the proceeding and the appeal bond.

The court granted leave to supply the papers as so asked by the appellee, and it overruled the motion to dismiss the appeal.

The record is in a confused and disjointed state, but it shows that the appellee, under such leave of court, filed the account of the appellants, which was allowed by the board of commissioners, and the appellee's affidavit for an appeal and his appeal bond approved by the county auditor, said affidavit and said appeal bond being endorsed by the auditor as filed December 18th, 1890. There is also copied into the transcript of the record before us an additional transcript of the proceedings of the board of commissioners in the allowance of the claim, certified by said auditor on the 5th of February, 1891.

The court did not err in these rulings.

Section 5772, R. S. 1881, provides: "From any decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved; but if such person shall not be a party to the proceeding, such appeal shall not be allowed, unless he shall file in the office of the county auditor, his affidavit, setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest."

Section 5773, R. S. 1881, provides that the appeal shall be taken within thirty days after the time the decision is made, by the appellant's filing an appeal bond; and section 5774 provides that within twenty days after the filing of such appeal bond, the auditor shall make out a complete transcript of the proceedings of said board relating to the proceeding appealed from, and shall deliver the same and all the papers and documents filed in such proceeding, and the appeal bond to the clerk of the court to which the appeal is taken.

The delay of the auditor in filing the transcript and papers until after the expiration of the period within which the statute directs the filing is not good ground for the dismissal of the appeal. His delay will not be permitted to prejudice the appellant who has complied with the statutory requirements. Day v. Herod, 33 Ind. 197. It has been held that if material papers in the cause are not filed in the circuit court, they may be obtained on motion of either party. Board, etc., v. Loeb, 68 Ind. 29.

The circuit court being a court of general superior jurisdiction, having authority to hear and determine such a cause on appeal, and the parties being before it, the presumption exists upon appeal to this court that the proceedings of the circuit court were regular and valid, unless something to the contrary be shown by the record. Having proceeded in the cause, it would be presumed that the things necessary to be done to confer jurisdiction of the appeal from the board of commissioners were done, the record being silent or not showing the contrary.

The appellants also moved to strike out the affidavit for an appeal, the appeal bond and the record of their filing.

As the appellants in their brief admit that the action of the court in overruling this motion does not involve any question other than those involved in the preceding rulings mentioned, it need not be noticed further.

Afterward the claimants filed in the court below an amended complaint embracing a number of separate items of account, which the parties and the court treated as separate paragraphs of the complaint, and the court sustained a demurrer to all the items of account except the first two, amounting to the sum of thirty-five dollars.

Upon trial by the court there was a finding for the claimants in the sum last mentioned on the first two items of their claim and against them upon the other items, and the court thereupon adjudged that the appellants were entitled to the sum of thirty-five dollars, and rendered judgment in their favor for...