Millisor v. Wagner

• Decision Date: 04 January 1893
• Docket Number: 15,976
• Parties: Millisor et al. v. Wagner
• Court: Indiana Supreme Court

32 N.E. 927

133 Ind. 400

Millisor et al. v. Wagner

No. 15,976

Supreme Court of Indiana

January 4, 1893

From the Fulton Circuit Court.

Judgment affirmed, with costs.

G. W Holman and R. C. Stephenson, for appellants.

E Myers, for appellee.

OPINION

Olds J.

This cause originated before the board of trustees of the incorporated town of Kewanna, Fulton county, Indiana, on a petition filed by the appellants for the widening of a certain street in said town.

On October 9, 1889, the appellants filed their petition for the widening of the street, and on the same date the town board appointed three commissioners, in pursuance with the statute, section 3368, R. S. 1881, for the assessment of benefits and damages, and the commissioners filed their report with the board, and, before any action was taken upon it, the appellee filed with the board written objections to the commissioners for the reason, as alleged, that they were not disinterested, etc. At the meeting of the town board held on the 13th day of November, 1889, there was the following record made relating to said matter: "And the board having heard and considered said report, a vote was taken, and the chair declared it lost. No further business before the board, they now adjourn until Wednesday evening, November 27, 1889."

At the meeting held November 27, 1889, a resolution was introduced by one of the members of the board of trustees and adopted, in the preamble of which it is stated that the report of the commissioners was by the board rejected upon the objections of Wagner, the appellee, and by the resolution three new commissioners were appointed to assess the benefits and damages, and notice was ordered given. Afterward the three commissioners last appointed filed their report, which was approved, and the damages in excess of benefits assessed were ordered paid. From the order approving the report of the commissioners last appointed, the appellee appealed to the Circuit Court. In the Circuit Court, the appellants moved the court to dismiss the appeal on the ground that the original papers were not certified up, and that the transcript was imperfect. The appellee moved to dismiss the cause for want of jurisdiction in the town board. The court overruled the motion of the appellants and sustained the motion of the appellee, and dismissed the cause. A motion for a new trial was filed by the appellants, and was overruled. Errors are assigned on these various rulings.

Section 3372, R. S. 1881, governing matters of this kind and authorizing an appeal, provides that "the board of trustees shall, within twenty days from the filing of said report, either accept or reject the terms of the same. And any owner of land or representative thereof aggrieved by such report, may appeal therefrom at any time, within thirty days after the filing thereof," etc.

The fair interpretation to be given to the record in relation to the report of the commissioners first appointed is that there was a final disposition of the report, and that it was rejected; while it is not expressed by...