In re Appleman

• Decision Date: 29 March 1911
• Docket Number: 21,800
• Citation: 94 N.E. 566,176 Ind. 253
• Parties: In re Appleman et al. Walb v. Eshelman et al
• Court: Indiana Supreme Court

94 N.E. 566

176 Ind. 253

In re Appleman et al.

Walb v. Eshelman et al

No. 21,800

Supreme Court of Indiana

March 29, 1911

Rehearing Denied June 28, 1911.

From Lagrange Circuit Court; William J. Davis, Special Judge.

Petition by George Spangler and others against Clyde A. Walb and others. From the order entered, said Walb appeals, George F Eshelman and others being made appellees.

Reversed.

Hanan Ewbank & Hanan, Dodge & Dodge and Frank J. Dunten, for appellant.

Anthony Deahl, Benjamin F. Deahl, Sidney K. Ganiard, Francis D. Merritt and William H. Duff, for appellees.

OPINION

Myers, C. J.

A petition for drainage was filed in the Lagrange Circuit Court on August 7, 1909. Such proceedings were thereafter had that the ditch was established. The assessments therefor were confirmed May 18, 1910. A commissioner was appointed to construct the drain, and the work was let to appellant.

At the November term, 1910, one Spangler, and several other persons, through the land of one of whom the ditch remains to be constructed, filed in the Lagrange Circuit Court a verified petition, alleging that they were the owners of lands affected by the construction of the proposed drain, that the ditch was not being constructed according to the specifications, in that it was being cut from eight to sixteen feet wider than the specifications called for, with perpendicular, instead of sloping banks, as specified, and that, by reason of the wide cutting, the earth was thrown back so as to render worthless a wider strip of ground than was necessary. The court was asked to direct the commissioner to make an immediate report, showing whether said drain was being constructed according to contract, and if said report showed that it was not being so constructed, that Clyde A. Walb be cited to appear before the court, and show cause why his contract should not be canceled and all payments for work refused.

On November 28, 1910, without the direction of the court, the drainage commissioner filed a verified report in said court in the proceeding, in which he showed in detail the manner in which the work was being done, and that the ditch was being cut much wider than the specifications, with perpendicular banks, and in other particulars not according to the specifications.

On December 7, 1910, the court entered the following order: "The regular judge being disqualified to hear this cause, by reason of consultation with parties in interest before his election, William J. Davis, a reputable attorney of the State of Indiana, is appointed special judge in said cause." The record shows that on the same day Davis took and subscribed an oath of office. It then recites: "And by agreement of all parties, the further hearing of this cause is set for Monday, December 12, 1910, at 9:30 o'clock a. m." On December 12, 1910, the commissioner of drainage filed proof of notice to the contractor Walb, reciting the fact of the filing of the petition by Spangler and others on November 22, 1910, asking that the commissioner file a report showing the condition of said work; and that he as such commissioner had filed such report, showing the condition of such work, and further showing that said Walb was not constructing said work according to the contract and the specifications; that on presentation of such report the court had fixed Monday, December 12, 1910, for hearing said report, and all matters properly connected therewith, and said Walb was notified to appear before the judge of the Lagrange Circuit Court at the courthouse in Lagrange, on said date, to answer said report, and on his failure so to do, said report was to be heard and determined in his absence. This notice was signed by the commissioner for construction by his attorneys. Service of this notice on Walb, December 9, 1910, was made by copy delivered by the sheriff, and proof of such notice was made in open court. A finding was entered December 12, 1910, that due notice had been given to the contractor.

On December 12, 1910, Walb entered a special appearance, and moved to set aside and annul the notice and pretended process theretofore presented and entered against him, and the judgment holding the same sufficient, for the reason, (a) that the court had not acquired jurisdiction of the person of appellant, (b) that no process had issued to, nor had been served on him, and that he has not appeared, (c) that the Honorable William J. Davis, who made and entered the judgment against him was not, and had not been legally appointed, selected and qualified to act as such judge, and was without jurisdiction in the matter. This motion was overruled, and Walb excepted. He then filed a motion to remand the cause to the regular judge of the Lagrange Circuit Court for reassignment to a special judge, on the ground that the Honorable William J. Davis was not, and had not been legally selected and appointed as special judge according to law, and that he was not legally qualified to act as special judge therein. That motion was overruled, and Walb excepted. Thereupon, without a rule against or an answer by Walb, the record recites that "the hearing and trial proceeds on the report of the ditch commissioner, and objectors' petition, and pursuant to said notice to the contractor, and the commissioner of drainage Gouvernear A. Tucker is now sworn, and testifies as a witness, and adjournment is taken for the noon recess." After the convening of court after said noon recess, and pending the hearing, and after evidence was heard in said cause, contractor Clyde A. Walb filed his demurrer to the complaint of Gouvernear A. Tucker, on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and Walb excepted. He then filed a demurrer to the petition of Spangler and others, on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled and Walb excepted. He then filed an answer in general denial to the complaint of Spangler and others, and to the complaint of Tucker, Drainage Commissioner. Walb then filed a motion for a special finding of facts. The record then recites: "And the trial of this cause proceeds by the introduction of evidence, and the adjourning hour having arrived and there not being time to complete the hearing of said matter to-day, court is adjourned until to-morrow morning at 9:30 o'clock."

The trial then proceeded on December 13, and certain parties dismissed the petition as to themselves. The court denied the request of Walb for a special finding of facts, and he excepted. The court then filed its finding of facts, judgment and order, and entered its findings, judgment and order therein as follows: "After hearing the allegations and proof, and being sufficiently advised in the premises, the court finds that Clyde A. Walb, the contractor for the construction of the ditch in question, is not and has not been constructing the same in substantial compliance with and in accordance with the specifications of said ditch, as hereinbefore adopted and ordered by the court, in this to wit: [Here follow particulars of the departure from the specifications.] It is therefore ordered and adjudged by the court that said Clyde A. Walb, contractor, be and he is hereby ordered and directed to proceed with the completion and construction of said ditch in substantial compliance with the specifications thereof as heretofore ordered by the court; and said contractor, his agents, servants and employes are hereby forbidden and enjoined from digging and excavating said ditch through the remainder of its length of a width at the top materially in excess of the width mentioned in said specifications; and he is forbidden and enjoined from digging the remainder of said ditch with perpendicular banks; and is required to leave said ditch when completed with sloping banks, as provided in said specifications, and with said roll of earth and roots and other debris removed. And the ditch commissioner, Gouvernear A. Tucker, is hereby ordered and directed to insist and see that this order of the court is substantially carried out and complied with. And it is further ordered by the court that in the event said contractor shall fail, neglect or refuse to comply with this order of the court in relation to the construction of this ditch, said drainage commissioner, shall at once, on such neglect, failure or refusal on the part of said contractor, take the necessary steps, as provided by statute, to annul and cancel the contract heretofore entered into by him with said contractor for the construction of said ditch." And the record further recites that "to which finding of facts, and judgment of court to each conclusion of law separately and severally said Walb objects and excepts. The defendant Clyde A. Walb now files his motion for a new trial." Such motion was overruled, and Walb excepted, and thirty days were given in which to file his bill of exceptions.

Judgment was entered as follows: "It is further considered and adjudged by the court that the petitioners, George Spangler, et al., except the petitioners whose action was dismissed as before stated, and Gouvernear A. Tucker, the drainage commissioner herein, shall recover of and from defendant Clyde A. Walb, their costs in the sum of $___."

An appeal was prayed, bond filed and approved, and a term-time appeal perfected.

In view of the conclusions of the court, the only errors that need be considered are those arising upon the overruling of the objections to the jurisdiction of the special judge, and the overruling of the motion to remand the cause to the regular judge.

We are confronted at the threshold of the case with a motion to dismiss the appeal on the grounds (a) that...