Moorehouse v. Kukalman
| Decision Date | 28 November 1911 |
| Docket Number | No. 21,776.,21,776. |
| Parties | MOOREHOUSE et al. v. KUKALMAN et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Noble County; Francis E. Bowser, Special Judge.
Action by John W. Moorehouse and others against John A. Kukalman and others. From a judgment for defendants, plaintiffs appeal. Reversed, with directions.Prickett & Carver and Leonard, Rose & Zollars, for appellants. Eph K. Strong, William F. McNagny, Rob. R. McNagny, and Phil M. McNagny, for appellees.
In November, 1903, John A. Kukalman and others filed in the Noble circuit court their petition for a public drain, under the circuit court drainage act of 1885, and its amendments. Acts 1885, p. 129 (Burns' Stat. 1901, § 5622 et seq.).
Objection was made to the appointment of the Noble county drainage commissioner and county surveyor, as commissioners in the proceeding, because of disqualifications, and the objection was by the court sustained, and the court thereupon appointed appellants John W. Moorehouse, John A. Jennings, and Charles W. Bender as drainage commissioners for the proceeding, and referred the petition to them, as provided for in the act, and ordered them to meet on February 8, 1904, and to commence the performance of their duties as such commissioners. The commissioners qualified, and commenced their work as ordered. They employed appellant Fred B. Moore, then county surveyor of Noble county, as engineer, to assist them in the discharge of their duties, and employed the other appellants to render services in connection with viewing and laying out the ditch, as assistant engineers, chainmen, axmen, etc. The commissioners, assisted by their engineer and other employés, were engaged in the work, when the drainage law of 1905 was enacted (Acts 1905, c. 157). At various times the commissioners filed applications for an extension of time within which to file their report, some of which were subsequent to May 15, 1905, when the repeal of the drainage act of 1885 became effective. All these applications were granted. Finally, on January 1, 1906, the commissioners filed their report, finding the proposed drain to be of public utility, and providing for its construction upon certain specifications therein set forth, and assessed benefits against numerous tracts of land, to be derived from the construction thereof. In their report the commissioners seem to have disregarded the provisions of the drainage act of 1905, which prohibited attempts to drain fresh-water lakes of an area of 10 acres or more.
Certain interested parties filed verified pleas, challenging the jurisdiction of the court to proceed further, based on the ground that the construction of the drain would affect several fresh-water lakes, each containing more than 10 acres. Such proceedings were had thereupon as resulted in a judgment dismissing the petition for want of jurisdiction. From this judgment the petitioners appealed to this court, and the judgment below was affirmed. Kunkalman v. Gibson (1909) 171 Ind. 503, 84 N. E. 985, 86 N. E. 850. The appellants here were not parties to the proceeding. No allowance was ever made to appellants for their services as commissioners, engineer, chainmen, etc.; but in the report such allowances were asked.
On May 11, 1909, these appellants filed in the court below their several motions, therein setting forth the proceedings had under the drainage petition, and services by each of them performed, and praying that the amount due each for his services be ascertained and allowed and ordered taxed as a part of the costs of the cause. Due notice was given to the original petitioners for the drain, and the sureties on their bond, all of whom appeared and filed separate motions to strike out appellants' motions, or petitions, on the grounds that the court had no jurisdiction to determine appellants' petitions, because of the repeal of the statute and the former dismissal of the proceeding, and because the petitions did not state facts sufficient to entitle the petitioners to any relief. Each of the appellants' petitions were entitled: .” The above was the title and number of the original proceeding instituted by the petitioners for the drain.
The court sustained the appellees' motions to strike out and dismiss, and final judgment was rendered against appellants, from which this appeal is prosecuted. Each of the appellants has assigned as error the action of the lower court in striking out his petition for the allowance and taxation of a certain sum in his favor as costs. The appellees, who were sureties on the drainage petition bond, have filed a separate brief, and claim that in no event was any cause of action stated against them in the several petitions of appellants, and consequently the judgment, as to them, should be affirmed.
The petitions of appellants were all of the same general tenor. They each set out a brief history of the proceeding, and allege that a certain number of days of service was performed by the petitioner, the kind of service rendered, and the amount due petitioner; that said facts were set forth in the report of the commissioners filed in January, 1906, and allowance therein asked, but the court never made any allowance therefor, and the same is due and unpaid, and the petitioner prays the court to make an allowance for the sum asked, and that such sum be ordered taxed as a part of the costs of the proceeding. Certain of the axmen, chainmen, and rodmen assigned their accounts for services to other persons, who, as such assignees, filed their petitions in the cause, and are appellants here.
At the outset, it is claimed by appellees that no question is presented to this court for decision, on account of alleged defects in the assignments of error caused by the failure to set forth the title of the cause and names of all the parties to the appeal, in each of the assignments of error.
[1] Rule 6 of this court does not require one appeal to have different titles because several appellants each assign error separately, nor is it necessary to repeat the title in each separate assignment; it is sufficient, where, as here, the names of all the parties, appellants and appellees, are set out in the title, and the name of each appellant is set out in his separate assignment of error. Breyfogle v. Stotsenburg, 148 Ind. 552, 47 N. E. 1057.
This was not a suit on the drainage bond, nor was any judgment asked against any of the appellees; the only relief sought was adjudication of the amounts due the petitioners for their services.
Section 2 of the drainage act of 1885, as amended in 1903, contained the following provision: “That at the time of the filing of said petition, said petitioner, or petitioners, shall give a bond, with good and sufficient freehold sureties, payable to the state, to be approved by the court, conditioned to pay all expenses in the event the court shall fail to establish said proposed drain.” Acts 1903, p. 253.
Section 11 of the drainage act of 1885 contained the following provision: “For their services under the third section of this act the drainage commissioners and engineer, and the chainman, axman, and rodman, if any shall be by them employed, shall be allowed and paid out of the county treasury such compensation as the court shall determine, not to exceed four dollars per day to the surveyor, three dollars per day to the drainage commissioners, except the surveyor, and one dollar and fifty cents per day for the chainman, axman, and rodman: Provided: that the county treasury shall be reimbursed in such sums as are so paid out by the assessments collected as hereinbefore provided.” Acts 1885, p. 143; Burns' Stat. 1901, § 5644.
Section 4 of the act of 1885 provides, among other things, that, if the judgment of the court supports remonstrances for certain causes, “the proceedings shall be dismissed, at the cost of the petitioners, including the costs per diem of the commissioners.” Acts 1885, p. 134; Burns' Stat. 1901, § 5625.
Section 248, Burns' Stat. 1908, in force since July 2, 1877, provides that: “The repeal of any statute shall not have the effect to release or extinguish any *** liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action *** for the enforcement of such *** liability.” Acts 1877, p. 73.
Section 14 of the drainage act of 1905 repealed all former legislation on the subject of drainage, but provided that the repeal should not affect then pending proceedings, wherein a ditch had been established, or in which there is “no attempt to, and which will not lower or affect any lake or body of water that has to exceed ten acres of surface,” etc. Acts 1905, p. 480. This act went into effect May 15, 1905.
An act approved March 6, 1905, prohibited, with a penalty of fine and imprisonment, drainage commissioners from recommending the establishment of any ditch cutting into or through or upon the line of any fresh-water lake or lakes, or locating any drain having a bottom depth lower than the present water line of such lake, within 40 rods of any point on the line of such lake where the line or any portion thereof is known or ascertainable. Burns' Stat. 1908, § 6162.
[2] We think it was the intention of the General Assembly in the enactment of this act of 1885 to make the petitioners liable to the persons rendering them, for the services of the commissioners and necessary assistants by them employed, in case the proposed drain should fail to be established, whether the cause of such failure might be one of those named in the statute (Burns' Stat. 1901, § 5625) or be the repeal of the statute itself.
[3] The right to enter...
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