Long v. Ruch

• Decision Date: 25 May 1897
• Docket Number: 18,023
• Citation: 47 N.E. 156,148 Ind. 74
• Parties: Long et al. v. Ruch et al
• Court: Indiana Supreme Court

47 N.E. 156

148 Ind. 74

Long et al. v. Ruch et al

No. 18,023

Supreme Court of Indiana

May 25, 1897

From the Whitley Circuit Court.

Affirmed.

W. E Colerick and W. G. Colerick, for appellants.

T. R Marshall, W. F. McNagny and P. H. Clugston, for appellees.

OPINION

McCabe, C. J.

In a certain drainage proceeding entitled "Petition of Joseph Ruch et al. for drainage," appellants entered a special appearance for the purposes of, and filed a motion to set aside and vacate two certain judgments entered against them in said matter. Thereupon the petitioners for said drainage entered a special appearance to said motion and moved to strike said motion and application from the files which motion the court sustained, and the motion and application was stricken from the files. Said motion and application to set aside said judgment was entitled thus:

"State of Indiana, Whitley County.

In the matter of the petition of Joseph H. Ruch et al. for drainage.

In the Whitley Circuit Court. April Term, 1896." And the substance of the motion was then as follows:

Come now the undersigned, specially appearing at this time to the above entitled proceeding for the sole purpose of making this motion and application, and represent to the court that the report of the drainage commissioners to whom the petition in said proceeding for the location and construction of the drain therein mentioned was referred, and which report was presented to, and filed in this court on February 22, 1894, certain parcels of real estate then and now owned by these applicants severally, were assessed by said commissioners in certain amounts for supposed benefits that said lands would, in the opinion of said commissioners, receive by reason of the construction of said drain, which several parcels of real estate so assessed are described in said report. That on the filing of said report in this court, it fixed April 7, 1894, for hearing said report. That these applicants filed no remonstrance to said report, but others whose lands were assessed did remonstrate, and that during the hearing of such report and remonstrances at the October adjourned term of said court for 1895, an agreement was made by the petitioners and remonstrants, that certain assessments that had been made by said commissioners, as shown by said report against Lake and Eel River townships, in Allen county, were to be released and discharged, and the assessments against the lands of all of said remonstrants were to be reduced fifty per cent., and that no assessments should be made against any of said remonstrants' lands in the future for repairs or cleaning said drain, and that said remonstrants should recover their costs; and the further hearing of said report and remonstrances was suspended and abandoned by this court. And the court on said day, in accordance with the terms of said agreement, rendered a finding and judgment in said proceeding by which said townships were relieved and discharged from payment of said assessments against them, and reducing the said assessments against the lands of the remonstrants fifty per cent., which judgment was duly entered in the order book of said court. That none of these applicants were parties to said agreement, "and never in any manner consented, * * * to the rendition of said judgment, and the same was rendered without their knowledge and consent, and in their absence, and without any notice to them. That said judgment, as to them, is inequitable and unjust" for a number of reasons stated.

And they further represent that this court, as a part of said judgments, established said drain, and ordered the construction of the same as prayed for in the petition in said proceeding; that said court at the time said judgment was rendered was not legally in session, and had no power or authority to hold at that time said special term of said court.

It is then stated that on December 21, 1895, said judgment was attempted to be set aside under an agreement and by which another judgment was to be, and was rendered after such attempted setting aside of said first judgment had been done. The second judgment was rendered in all respects like the first, with the exception of some modifications which are stated in the motion, and not...