Hunsucker v. Montel

• Decision Date: 14 December 1926
• Docket Number: No. 24775.,24775.
• Citation: 154 N.E. 389,198 Ind. 557
• Parties: HUNSUCKER et al. v. MONTEL et al.
• Court: Indiana Supreme Court

198 Ind. 557

154 N.E. 389

HUNSUCKER et al.

v.MONTEL et al.

No. 24775.

Supreme Court of Indiana.

Dec. 14, 1926.

Appeal from Jackson Circuit Court; John Clerkin, Special Judge.

Petition by John E. Hunsucker and others for the establishment of a public drain. From a judgment of dismissal on a motion by Lucinda Montel and others, petitioners appeal. Reversed with directions.

See, also, 146 N. E. 110.

Thomas H. Branaman, of Brownstown, for appellant.

O. O. Swails, of Seymour, and J. Ross Robertson, of Brownstown, for appellee.

GEMMILL, C. J.

Appellants, as petitioners, filed in the office of the clerk of the Jackson circuit court their amended petition, praying for the establishment of a public drain, on March 7, 1923. The petition was docketed, and on May 17, 1923, was referred to drainage commissioners. Thereafter, on November 6, 1923, the drainage commissioners filed their report, and December 17, 1923, was the day fixed for hearing of same. On May 14, 1924, Lucinda Montel, one of the appellees, who was a party to the amended petition, and who was also a remonstrator, filed a motion to dismiss said cause, for the reason that the petition therein did not describe an amount equal to two-thirds or more in area of all the lands which would be affected by the drainage proposed, as set forth in the report of the viewers and commissioners on file in said cause. This motion was sustained, and the petition and cause of action were dismissed.

On appeal, the appellants assign as error that the court erred in sustaining the motion of appellee Lucinda Montel to dismiss the petition of appellants (petitioners) in said cause, and in dismissing the petition and cause of action of appellants (petitioners). This motion was based on section 2 1/2, c. 97, Acts 1919 (section 6142f, Burns' Supp. 1921), as follows:

“That all petitions for drains hereafter filed shall describe an amount equal to two-thirds, or more, in area, of all the lands which will be affected.”

The act containing said section was cumulative and supplemental to existing drainage laws. When the amended petition was filed and when same was referred to the drainage commissioners, the drainage laws provided that all objections to the form of the petition should be filed within ten days, exclusive of Sunday and the day for docketing such action, after such docketing; and that all objections to the petition not made within ten days should be deemed waived. Section 1, c. 34, Acts Sp. S. 1920 (...