Keiser v. Mills

• Decision Date: 24 November 1903
• Docket Number: 20,109
• Citation: 69 N.E. 142,162 Ind. 366
• Parties: Keiser et al. v. Mills et al
• Court: Indiana Supreme Court

69 N.E. 142

162 Ind. 366

Keiser et al. v. Mills et al

No. 20,109

Supreme Court of Indiana

November 24, 1903

Rehearing Denied March 30, 1904.

From Hamilton Circuit Court; R. K. Kane, Special Judge.

Proceeding by Frank H. Keiser and others for the construction of a ditch. William A. Mills and others remonstrated. From a judgment in favor of remonstrants, certain petitioners appeal.

Reversed.

S. D Stuart and C. G. Reagan, for appellants.

J. A Roberts and Meade Vestal, for appellees.

OPINION

Monks, J.

A petition was filed by appellants and others on January 24, 1901, in the clerk's office of the court below, for the construction of a ditch under the drainage law of 1885 and the amendments thereto (§§ 5622-5631, 5644-5646 Burns 1894). Notice was given to the owners and occupants of the several tracts of land described in the petition in the manner prescribed by law, and the case was docketed. No remonstrance having been filed, the same was referred to the drainage commissioners as required by § 5624, supra. Said commissioners afterwards made their report to the court, from which it appeared that lands were named as affected by said drainage which were not named in the petition. The court fixed February 15, 1902, as the time for the hearing of said report, and the petitioners gave notice to the owners of such lands of the filing of said report and the date fixed by the court for the hearing thereof. The notices were served on such landowners, which included appellees, on January 29 and 30, 1902. On February 15, 1902, appellees filed a verified application for leave of court to file a remonstrance against the construction of said ditch, signed by more than two-thirds of the landowners named in the report of the drainage commissioners. On the same day appellees, who were owners of land named in the report of the drainage commissioners and not named in the petition, each filed a separate verified remonstrance against the report of said drainage commissioners, for the first, fifth, eighth, ninth, and tenth statutory grounds of remonstrance provided in § 5625, supra. On March 3, 1902, the court denied the motion of appellees asking leave to file the remonstrance of two-thirds of said landowners, and refused to permit said remonstrance to be filed, to which ruling of the court appellees jointly and severally objected and excepted. Afterwards appellants filed a separate motion to strike from the files each remonstrance of appellees setting up said statutory causes, upon the ground that the same was not filed within the time required by statute, which motion the court, on April 11, 1902, overruled, to each of which rulings of the court appellants at the time objected and excepted. A trial of said cause resulted in a judgment in favor of appellees. Each of said rulings of the court on the motions to strike out said remonstrances is challenged by appellants jointly.

It will be observed that the report of the drainage commissioners was filed in October, 1901, and the report of the drainage commissioners was set for hearing on February 15, 1902, long after the taking effect of the act approved March 8, 1901 (Acts 1901, p. 161, §§ 5623, 5624, 5626, 5628 Burns 1901), but as these proceedings were instituted before the passage of said amendatory act of March 8, 1901, by the express provision of section four of said act (§ 5628, supra), said act does not apply to this case, but the same is governed by the law in force when this proceeding was begun.

Appellees insist that the appeal should be dismissed "for the reason that appellants have not given the names of all the parties to the record in their assignment of errors." Only parties to the judgment appealed from are necessary parties to an appeal. Moore v. Franklin, 145 Ind. 344, 44 N.E. 459; Lowe v. Turpie, 147 Ind. 652, 690-693, 37 L. R. A. 233, 44 N.E. 25; Capital Nat. Bank v. Reid, 154 Ind. 54, 55 N.E. 1023; McClure v. Shelburn Coal Co., 147 Ind. 119, 46 N.E. 349. This was a term-time appeal, and appellants were not required to make their coparties to the judgment co-appellants with them in this cause. §§ 647a, 647b Burns 1901; Lowe v. Turpie, supra; Roach v. Baker, 145 Ind. 330, 43 N.E. 932; Goodrich v. Stangland, 155 Ind. 279, 281, 282, 58 N.E. 148.

Objection is made that the names of appellees in the assignment of errors are not the names by which they are known in the record. In the transcript the initials of the Christian names of many of the appellees are given, while in the assignment of errors the first Christian name is given in full. For example, lands of "J. A. Commons," whose name appears in the assignment of errors as "James A. Commons," were assessed with benefits, and he filed a separate remonstrance to the report of the drainage commissioners, signed "J. A. Commons." Appellants' motion to strike out this remonstrance was overruled by the court. This ruling of the court was challenged by the assignment of errors in this language: "The court erred in overruling the motion of appellants to strike from the files and reject the remonstrance of James A. Commons, signed by the name and style of J. A. Commons." As it is not shown that James A. Commons is not the correct full name of the J. A. Commons named in the record, we must presume that it is.

Rule six of this court requires that the assignment of errors shall contain the full names of all the parties. In giving the full names of all appellees in the assignment of errors, said rule was complied with. This court has refused to dismiss appeals in drainage cases under the act of 1885 and amendments when this rule was not complied with, on account of the fact that it is only necessary in proceedings under the circuit court drainage law (§ 5623 Burns 1894) to describe the lands affected as belonging to the person who appears to be the owner according to the last tax duplicate or transfer book kept by the county auditor. Goodrich v. Stangland, supra; Gunn v. Haworth, 159 Ind. 419, 421, 64 N.E. 911. This, however, furnishes no ground for dismissing an appeal in such cases when said rule is complied with by giving the full names.

It is claimed by appellees that the record does not show that any land belonging to Thomas C. Lennen, a petitioner and appellant, was assessed with benefits, and that, therefore no error was committed by the court against him in overruling the joint motions of appellants to strike out said remonstrances; that for this reason the assignment of errors is not good as to him, and, being joint by all the appellants, must fail as to all of them, under the rule that a joint assignment of error must be good as to all or it is good as to none. Armstrong v. Dunn, 143 Ind. 433, 436, 437, 41 N.E. 540. Under the liberal provision made by § 5623, supra, that it is sufficient to give the court jurisdiction over all the lands described and the power to fix the lien, "if they are described as belonging to the person who appears to be the owner according to the last tax duplicate or record of transfer," we can not presume that no land belonging to the petitioner Thomas C. Lennen was assessed with benefits merely because the name of Thomas C. Lennen was not given in the report of the drainage commissioners as the owner of land benefited by the construction of said ditch. For aught that appears from the record, said appellant Thomas C. Lennen was the owner of several tracts of land assessed with benefits, but described as belonging to the person who appeared to be the owner according to the last tax duplicate or record...