Miller v. Kankakee & Pine Creek Drainage Ass'n, 29005
| Decision Date | 16 June 1953 |
| Docket Number | No. 29005,29005 |
| Citation | 232 Ind. 412,112 N.E.2d 852 |
| Parties | MILLER et al. v. KANKAKEE & PINE CREEK DRAINAGE ASS'N et al. |
| Court | Indiana Supreme Court |
Alfred J. Link and Frederick H. Link, LaPorte, Albert B. Chipman, Plymouth, for appellant.
Hammerschmidt & Johnson, South Bend, Parker & Parker, Orie Parker, South Bend, for appellee.
This action was transferred from the Appellate Court under § 4-214 (Sixth), Burns' 1946 Replacement.
Appellants filed suit in the Marshall Circuit Court to enjoin appellees from performing a certain contract for the deepening and widening of a public drainage ditch in proceedings instituted under ch. 165 of the Act of 1913.
On March 27, 1950 a petition was filed with the Board of County Commissioners of St. Joseph County, Indiana, for the appointment of appraisers in said proceedings. Said commissioners were subsequently appointed, qualified, and submitted their assessment roll to the proper authorities on July 20, 1950. On September 16, 1950 bids were accepted for the drainage project contemplated in said proceedings and a completed assessment roll was submitted on said day and recorded on September 25, 1950 in the Recorder's office of St. Joseph County.
On September 23, 1950 appellants filed their complaint for injunction. On April 19, 1951 appellants' petition for injunction was denied by the Marshall Circuit Court. Appellants' motion for a new trial was overruled on July 5, 1952, from which ruling an appeal was prosecuted to the Appellate Court. Work on the drain continued and was completed and accepted by the engineers in charge of construction on December 31, 1952.
On January 5, 1953 appellees filed in the Appellate Court a petition to dismiss the appeal. On January 31, 1953 their verified amended motion to dismiss appeal was filed in this court.
Said verified amended motion asserts that 'all of the matters, acts, performances and construction sought to be enjoined by plaintiffs' complaint have been fully performed, completed and constructed according to the plans, specifications and profile as contracted to be constructed, and there is nothing left to be done upon which an order of injunction could operate.', and that the work to be done was entirely completed and accepted by the proper authorities on December 31, 1952.
On March 9, 1953 we issued against appellants an order to show cause why the appeal herein should not be dismissed on the grounds that the questions raised in...
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...which might render a pending appeal moot. Gierhart v. State (1962), 243 Ind. 553, 186 N.E.2d 680; Miller v. Kankakee & Pine Creek Drainage Ass'n (1953), 232 Ind. 412, 112 N.E.2d 852; Fox v. Holman (1933), 95 Ind.App. 598, 184 N.E. 194; Bloom v. Town of Albion (1932), 96 Ind.App. 229, 183 N.......
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...an injunction cannot operate to enjoin the performance of a contract which has been fully performed. Miller v. Kankakee & Pine Creek Drainage Ass'n. (1953), 232 Ind. 412, 112 N.E.2d 852. 2 Time argues that our supreme court has held that in matters involving great public interest or affecti......
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