Moorhouse v. Kunkalman

• Citation: 96 N.E. 600,177 Ind. 471
• Decision Date: 28 November 1911
• Docket Number: 21,776
• Parties: Moorhouse et al. v. Kunkalman et al
• Court: Supreme Court of Indiana

96 N.E. 600

177 Ind. 471

Moorhouse et al. v. Kunkalman et al

No. 21,776

Supreme Court of Indiana

November 28, 1911

Rehearing Denied May 9, 1912.

From Noble Circuit Court; Francis E. Bowser, Special Judge.

Action by John W. Moorhouse and others against John A. Kunkalman and others. From a judgment for defendants, the plaintiffs appeal.

Reversed.

Pickett & Carver and Leonard, Rose & Zollars, for appellants.

Eph K Strong, William F. McNagny, Rob R. McNagny and Phil M McNagny, for appellees.

OPINION

Morris, C. J.

In November, 1903, John A. Kunkalman 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, § 5622 et seq. Burns 1901).

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. Moorhouse, 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 employes, were engaged in the work when the drainage law of 1905 (Acts 1905 p. 456) was enacted. 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, supra, 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 on 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 (Acts 1905 p. 447, Acts 1905 p. 456), which prohibited attempts to drain fresh-water lakes of an area of ten 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 ten 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. 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 appellant's petitions was entitled:

"State of Indiana, Noble County, SS. In the Noble Circuit Court, May Term, 1909. In the matter of the petition for drainage by John Kunkalman et al. No. 4566."

The above was the title and number of the original proceeding instituted by the petitioners for the drain.

The court sustained 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.

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. Each sets out a brief history of the proceeding, and alleges 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 the names of all the parties to the appeal, in each of the assignments of error.

Rule six 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 (1897), 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 (Acts 1885 p. 129, § 5623 Burns 1901) as amended in 1903 (Acts 1903 p. 253) 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."

Section 11 of the act of 1885, supra, (§ 5644 Burns 1901), 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 $ 4 per day to the surveyor, $ 3 per day to the drainage commissioners, except the surveyor, and $ 1.50 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."

Section 4 of the act of 1885, supra (§ 5625 Burns 1901), 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 and per diem of the commissioners."

Section 248 Burns 1908, § 248 R. S. 1881, 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."

Section 14 of the drainage act of 1905 (Acts 1905 p. 456) 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. This act went into effect May 15, 1905.

An act approved March 6, 1905 (Acts 1905 p. 447, § 6162 Burns 1908), 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 forty rods of any point on the line of such lake where the line or any portion thereof is known or ascertainable.

We think it was the intention of the General Assembly in the enactment of the 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...