Markley v. Rudy

• Citation: 18 N.E. 50,115 Ind. 533
• Parties: Markley, Surveyor, v. Rudy et al.
• Decision Date: 28 September 1888
• Court: Supreme Court of Indiana

115 Ind. 533

18 N.E. 50

Markley, Surveyor,

v.Rudy et al.

Supreme Court of Indiana.

September 28, 1888.

Appeal from circuit court, Wells county; Henry B. Sayles, Judge.

Appeal by Franklin Rudy and others from an assessment made by Gabriel Markley, surveyor of Wells county, upon their lands for the repair of a ditch. The circuit court set aside the assessment, and awarded costs against the surveyor, and from that judgment he appealed.Dailey, Mock & Simmons, for appellant. A. N. Martin, for appellees.

Niblack, C. J.

The Wells circuit court, at its September term, 1882, on the petition of Constant Ehle and others, ordered the construction of a ditch within the county of Wells, for the purposes of drainage, and a ditch, since known as the “Ehle Ditch,” was constructed accordingly. On the 12th day of September, 1887, Theodore Ellingham, who was the owner of several tracts of land which had been benefited by, and had been assessed for, the construction of that ditch, gave a notice in writing to the appellant, Gabriel T. Markley, who was then, and thereafter continued to be, the surveyor of Wells county, requiring him to repair the ditch, and to restore it to its original dimensions. The appellant thereupon proceeded to repair the ditch, and as far as practicable to restore it to its former condition, and to certify the cost thereof, including his own per diem for services, to the auditor of the county. To reimburse the county treasury for the cost of this work, he further proceeded to make assessments against the land assessed in the first instance for the construction of the ditch, specifying the name of the owner of each tract of land. In connection with a considerable number of tracts of land belonging to other persons, land owned by Franklin Rudy, Daniel Shire, Charles B. Evans, and Aaron F. Cotton, respectively, were in this way assessed to pay the cost of repairing the ditch. In making these assessments the appellant assumed to be governed by the provisions of section 10 of the drainage act of 1885, (Acts 1885, p. 141.) Rudy, Shire, Evans, and Cotton, the appellees here, severally appealed from the assessments made against their respective lands to the circuit court, making the appellant, Markley, as the county surveyor, the defendant in all of their appeals. The appellant, Markley, appearing in the circuit court, moved to dismiss the appeal in each case, because all the other persons whose lands had been assessed had been assessed had not either joined in the appeal or been notified, and thus afforded an opportunity to join in it, but his motion in each case was overruled. The plaintiffs in these appeals then, in an effort to raise the question of the appellant Markley's jurisdiction to make the assessments appealed from, filed an affidavit in each case, charging that he, the appellant, was, at the time the repairs and assessment were made, the owner of two of the tracts of land benefited and assessed for such repairs; and that his father, Jonathan Markley, was the owner at the same time of two of the other tracts of land in like manner assessed for repairing the ditch; that by reason of these facts he was incompetent either to make such repairs, or to make assessments against the lands benefited for the purpose of keeping the ditch in repair. The four appeals were thereafter consolidated, and the causes as thus consolidated were submitted to the court for trial. The appellant, Markley, to facilitate the trial, admitted in open court that he was at the time the ditch was repaired, and still was, the owner of two of the tracts of land benefited and assessed as stated, and that his father at the same time was the owner of two of the other tracts similarly situated. The circuit court thereupon declined to hear further evidence, and to proceed further with the trial, and made a finding that the assessments in controversy were unlawful and void, and rendered a judgment annulling and setting aside the assessments; also against the appellant personally for costs.

The assessments made against the lands benefited by the repairing of the ditch were in their essential qualities entirely several, and hence not in any sense joint assessments. While there may be some obscurity in certain respects in the provisions of section 10 of the act of 1885, above referred to, as to the scope and effect of, and as to the proper practice under, appeals to the circuit court, all the analogies lead us to hold that any person feeling himself aggrieved may separately appeal from an assessment made against his lands under that section. This view is impliedly confirmed by the provision that if more than one person shall appeal the cases shall be consolidated and tried together. Consequently the motion to dismiss the appeal taken from the assessments in question was correctly overruled.

It is a fundamental rule in the administration of justice that no person can be judge in a cause in which he is interested. This rule applies to inferior tribunals as well as to courts of general and appellate jurisdiction. This elementary principle has been so...