Metsker v. Whitesell

• Decision Date: 27 January 1914
• Docket Number: No. 22,445.,22,445.
• Citation: 103 N.E. 1078,181 Ind. 126
• Parties: METSKER et al. v. WHITESELL et al.
• Court: Indiana Supreme Court

181 Ind. 126

103 N.E. 1078

METSKER et al.

v.WHITESELL et al.

No. 22,445.

Supreme Court of Indiana.

Jan. 27, 1914.

Appeal from Circuit Court, Hamilton County; Joseph Combs, Special Judge.

Proceeding for the improvement of a rural highway by William H. H. Whitesell and others against Hamilton Metsker and others. From a judgment dismissing an appeal from an order directing the improvement, defendants appeal. Reversed, with directions to overrule motions to dismiss appeal, and for further proceedings.Neal & Neal and Shirts & Fertig, all of Noblesville, for appellants. Wm. V. Rooker, of Indianapolis, for appellees.

MORRIS, C. J.

Appellees, in March, 1912, filed their petition for the improvement of a rural highway, 5,400 feet in length, under the provisions of section 7711 et seq., Burns' 1908. The board of commissioners referred the matter for report to J. S. Shannon, engineer, and John F. Passwater and Larkin Stultz, viewers. Subsequently a report was filed, signed by Shannon, as engineer, and Passwater, as viewer, in which it was recited that the proposed improvement would be of public utility, and that there should be used as a paving material gravel and broken stone, bound together with asphalt or coal tar. The report was accompanied with the proper plat and profile. Following this report was a separate one by Viewer Stultz, which recites that, if the paving material described in the foregoing report (estimated to cost $13,600) shall be used, the cost thereof would render the improvement not of public utility, but that, if gravel (estimated to cost $4,654) alone be used, the proposed improvement would be of public utility. In other respects he concurred in the report signed by Shannon and Passwater. This report was filed May 20, 1912. On June 3d following a supplemental report was filed. Section 7718, Burns' 1908. No remonstrance was ever filed. Acts 1909, p. 354. In July the board examined the report, and rejected it, and dismissed the petition. From this order, Wm. V. Rooker, one of the petitioners, appealed to the circuit court. His appeal bond was signed by Robert E. Washington, as surety. The regular judge declined to hear the appeal, and appointed Hon. Samuel R. Artman, as special judge, to determine the matter. On January 15, 1913, Judge Artman heard the cause, and adjudged that the order of the board, in dismissing the petition, be vacated, and remanded it to the board, “with directions to take such further proceeding under the statute as is provided by law.” Subsequently, at the same term, appellants Metsker, Morris, and Wade appeared in the circuit court, and filed various verified motions, praying to be admitted as parties defendant, and for the vacation of the judgment theretofore entered. These motions were overruled. Afterwards, on leave of court, they filed a motion for a modification of the judgment, which motion recited that Metsker et al. were each resident taxpayers of the township in which the highway is located. Thereupon the judgment was modified to read as follows: “It is therefore considered and adjudged by the court that the order and judgment of the board of commissioners of Hamilton county, Ind., dismissing the petition herein, be and the same is hereby vacated, and set aside, and held for naught; and it is further stated for the information and direction of said board that the court, in this judgment, does not adjudicate any question as to the jurisdiction of the board over the subject-matter of this proceeding, or the validity of the proceedings of the board, except its order and judgment dismissing the petition. S. R. Artman, Special Judge.”

This modification was certified to the board, and thereupon appellants Metsker, Morris, and Wade appeared before it, and, by verified written motion, challenged the competency of Commissioner Robert E. Washington to take part in the hearing of the cause, for the reason that he had, before qualifying as county commissioner, executed, as surety, the appeal bond of W. V. Rooker. The challenge was overruled, with Commissioner Harvey voting to sustain it. Appellants then tendered to the board, and asked leave to file, their verified answers, in which it was alleged, among other things, that each was a resident taxpayer of Noblesville township, Hamilton county, where the highway was situate; that the board was without power to order the improvement, as recommended by the report of Passwater, viewer, and the engineer, because the other viewer did not assent to such report; that the board was not authorized to order the proposed improvement of a country highway to be constructed of the materials described in the report of the engineer and Viewer Passwater. The board, by a vote of two to one, refused the offer to file the answer; Commissioner Harvey dissenting. Appellants thereupon, by leave of the board, filed their verified motion to submit the question of the improvement to the legal voters of the township. After consideration, the board (Commissioner Harvey dissenting) struck the motion from the files, and, on motion of petitioners on February 15, 1913, approved the report of Viewer Passwater and Engineer Shannon, and ordered the construction of the improvement in accordance with such report. Appellants gave notice of their intention to appeal to the circuit court, and on February 22, 1913, filed their appeal bond with the county auditor, which was approved. No affidavit was filed by appellants with the auditor showing the interest or grievance of appellants. Acts 1909, p. 355; section 6021, Burns' 1908.

On April 25, 1913, the cause was presented for hearing in the circuit court, and appellees filed a motion to dismiss the appeal, for the following reasons: (1) The appellants never filed any remonstrance before the board; (2) there is no issue to try in this court; (3) appellants filed no affidavit with the auditor showing interest or grievance, and were not parties to the action. The further hearing of the cause was adjourned to May 29, 1913, when appellees' motion was sustained, and the appeal dismissed. From that judgment, this appeal is prosecuted, and the action of the circuit court in dismissing the appeal is here assigned as error.

[1][2] Appellees have filed a motion to dismiss the appeal, assigning several grounds therefor, of which the principal one is the alleged fact that the circuit court had no jurisdiction of the matters presented in appellants' appeal from the final order of the board, and consequently this court has no jurisdiction of this appeal. If it were true that the circuit court had no jurisdiction of the subject-matter of the appeal, such fact would require an affirmance of the judgment, rather than a dismissal of this appeal. The other reasons assigned deal wholly with the merits of the ruling of the trial court. The motion is overruled at appellees' cost. Ryder v. Shea, 103 N. E. 411.

Appellees' counsel contends that the circuit court had no jurisdiction of the last appeal, because appellants were not parties to the proceeding while it was pending before the board of commissioners, and because no affidavit was filed with the county auditor showing grievance or interest.

If it be conceded, as appellees contend, that appellants did not become parties to the proceeding while it was pending before Judge Artman, it must, nevertheless, be held that they became parties thereto after it was remanded to the board. By leave of the latter, appellants filed a proper petition praying the board to submit the question of improvement to the township voters. At the same time appellants tendered verified answers, showing they were taxpayers of the township, and challenging the jurisdiction of the board to order the improvement because of defects appearing on the face of the record.

[3] Where want of jurisdiction appears on the face of the record, the question may be raised for the first time in this court. Ætna Life Ins. Co. v. Jones (1909) 173 Ind. 149, 89 N. E. 871, and cases cited.

[4] Appellants were authorized, in the capacity of parties, to appeal to the circuit court without filing the affidavit required by section 6021, Burns' 1908. Voorhees v. Indianapolis Car Mfg. Co., 140 Ind. 220, 39 N. E. 738;Strebin v. Lavengood, 163 Ind. 478, 71 N. E. 494;Clough v. Thomas, 53 Ind. 24.

[5] The suggestion of appellees' counsel that the allegation in the appellants' tendered answers that they were taxpayers of the township is not sufficient, because it does not warrant the just inference that they were taxpayers in any other respect than payers of poll tax, and hence not interested, is too technical for serious consideration. The interest was sufficiently alleged.

[6] Appellants contend that the board had no power to order the improvement on the report of one viewer and the engineer; while appellees take the position that the engineer is a viewer, and that a report, concurred in by the engineer and one viewer, is sufficient under clause 2, § 240, Burns' 1908, which provides that “words importing joint authority to three or more persons shall be construed as authority to a majority of such persons, unless otherwise declared. ***”

The statutory provisions relating to the appointment and duties of engineer and viewers are found in sections 7715, 7716, 7717, and 7718, Burns' 1908. These provisions are substantial copies of like ones found in the assessment highway act of March 3, 1877. Acts 1877, p. 82; R. S. 1881, §§ 5092, 5093, 5094. The act of 1877 provided for the appointment of three viewers, besides the engineer, while this act provides for two. The present highway law (section 7716, Burns' 1908) exacts of the engineer a bond, conditioned on the faithful discharge of his duties, with liability for wrongful acts or negligence, and also (section 7717) requires the report to be signed by the engineer and each viewer.

In Thompson v. Goldthwait, 132 Ind. 20, 31 N. E. 451, this court, in construing the act of 1877, held...