McMullen v. State ex rel. Kendle

• Decision Date: 13 February 1886
• Parties: McMullen v. State ex rel. Kendle, Com'r, etc.
• Court: Indiana Supreme Court

105 Ind. 334

4 N.E. 903

McMullen

v. State ex rel.Kendle, Com'r, etc.

Supreme Court of Indiana.

Filed February 13, 1886.

Appeal from Gibson circuit court.

C. A. Buskirk and S. H. Kidd, for appellant.

Fields & Ewing, for appellee.

ZOLLARS, J.

Appellee, as a commissioner appointed by the court to construct the drain, brought this action to collect assessments made against appellant's lands. The drain was constructed under the act of 1881 (section 4273 et seq.) as amended by the act of 1883, (Acts 1883, p. 173.) The record shows that on the seventh day of February, 1884, the petition was filed in the clerk's office, with the indorsement thereon that the petitioner fixed the seventh day of February, 1884, as the day for docketing thereof. On that day the petition was presented to the court, and the court made the following entry upon the question of notice:

“Comes now the petitioner herein, and presents to the court his petition for drainage, and said petitioner proves to the court that due and legal notice of the filing of said petition in the clerk's office of said court has been given, by posting up notices thereof in three public places in Patoka township, in Gibson county, Indiana, that being the township in which the lands described in said petition are situated, and near the line of the proposed work in said petition set out and prayed for, and by posting a like notice at the court-house door, in said county, all more than twenty days before the seventh day of February, 1884, that being the day fixed upon and noted on said petition, at the time of filing the same in the clerk's office of this court, as the day set for docketing of said petition in this court; and it appearing to the court that all these things have been done, it is therefore ordered by the court that said petition and proceedings be placed upon the docket of this court as an action pending therein.”

Three days having expired, and there being no objections interposed, the court referred the matter to the commissioners of drainage, naming them, and ordered that they should meet on the thirty-first day of March, 1884, make a personal inspection of the lands described in the petition, etc., and report to the court upon the first day of the succeeding May term. It is alleged in the complaint that at the May term, 1884, the commissioners not being ready to report, the matter was continued until the twenty-third day of February, 1885. An entry in the order-book shows a continuance, but it does not show when the continuance was ordered, nor for how long a time. On the twenty-third day of February, 1885, the commissioners filed their report assessing benefits to lands, including those of appellant. The report was signed by the commissioners of drainage. Two of them were different persons from those named in the order of reference, but they had been appointed as drainage commissioners in the place of the two who had resigned. There having been no remonstrance filed, and more than 10 days having elapsed, the report of the commissioners was approved, the drain was established, and appellee, one of the drainage commissioners, was appointed to construct the drain.

Appellant resists the payment of the assessments upon three grounds: One is that the proceedings which resulted in the establishment of the drain are null and void for the reason that there was no proper notice of the filing of the petition. It is claimed that this is apparent upon the face of the record, and that hence those proceedings may be successfully assailed collaterally. This contention is based upon appellant's construction of section 2 of the act of 1883. Acts 1883, p. 174. That section provides as follows:

“Whenever the petitioner shall file his petition in the clerk's office of the circuit court, he shall fix and note thereon the day set for docketing thereof; and if it appear to the court that notice has been given of the filing of said petition, by posting up notices thereof in three public places in each township where the lands are situated, described in said petition, and near the line of the proposed work, and at the court-house door in each of the counties in which said lands are situated, not less than twenty days before the day noted thereon, and set as the day for the docketing of the same, the court shall order the same placed on the dockets of said court as an action pending therein,” etc.

We think, with appellant's counsel, that this section provided for giving notice of the filing of the petition, and that hence the notice should follow the filing. This is made apparent, we think, by an examination of the section of which it is an amendment, and the act of 1885. The section amended (Rev. St. 1881, § 4275,) provided that notice should be given of the intention to present a petition. That section did not require that the notice should name any particular day upon which the petition would be presented to the court. The form of notice provided in the act, (Rev. St. 1881, § 4284,) was that the petition would be presented at the next term of the circuit court. There was nothing in that act requiring any day in the term to be named upon which the petition would be presented, and there was no requirement that the petition should be filed, and thus made accessible for examination by any one, until it should be presented to the court. There was no specific mode provided for testing the sufficiency of the petition, except by remonstrance after the filing of the report by the drainage commissioners, and then but three days were allowed in which to file such a remonstrance. The amendment of 1883 was intended to afford better opportunities to the land-owners to contest the proceeding from the start, and hence the act provided that the petition should be filed in the clerk's office, and a definite day noted thereon when it would be presented to the court for action. Then notice was to be given, not of the intention to present such a petition, but of its filing. With this notice and the petition on file, showing, by the indorsement thereon, the day when it was to be presented to the court for action, interested parties would be notified, in advance, of the exact time when the petition would go to the court, and would be afforded an opportunity to examine it, and prepare for such resistance as they might think proper. Three days were given to such parties, after the docketing of the petition, in which to test its sufficiency by demurrer, etc., and to object to any or all of the drainage commissioners. This act also preserved the right to remonstrate against the report of the drainage commissioners, and extended the time to 10 days after the filing of the report. The purpose of...