Munson v. Blake

• Decision Date: 14 March 1885
• Docket Number: 11,358
• Parties: Munson et al. v. Blake
• Court: Indiana Supreme Court

101 Ind. 78

Munson et al. v. Blake

No. 11,358

Supreme Court of Indiana

March 14, 1885

From the Marshall Circuit Court.

J. D McLaren, H. Corbin and F. W. Munson, for appellants.

A. C Capron and P. O. Jones, for appellee.

OPINION

Colerick C.

The appellee presented to the Marshall Circuit Court, at its October term, 1881, his petition for the location and construction of a drain, and on proof being made to the satisfaction of the court that proper notice of the appellee's intention to so present the same had been duly given as required by the statute, said petition was, by the court, at said term, referred to the commissioners of drainage of Marshall county, and they were directed by the court to view the proposed route of the drain, and if they found, upon such view, that the drain would be of public utility, etc., to establish the same, and assess the benefits and damages to each tract of land that would be affected by its construction, and make a report of their proceedings and action therein to the court on the first day of its next term, being the December term, 1881, thereof. On the twenty-seventh day of said December term, 1881, the commissioners made their report, in favor of the construction of the drain and assessing benefits and damages as aforesaid. Two days afterwards Matilda Parry and others, whose lands were assessed for the construction of the drain, filed their joint remonstrance against the confirmation of the report. The remonstrance was verified by the affidavit of the attorney of said Matilda Parry. No further steps were taken in the proceeding until the October term, 1882, when a motion was made by the appellee to strike out the remonstrance, on the ground that it was not "as to each and all" of the remonstrants "verified by affidavit as provided by law," which motion was overruled by the court, and afterwards, at the same term, Matilda Parry withdrew, as a remonstrant, her objections to the report of the commissioners, and afterward, at the same term, the commissioners filed an amended report, by which it appears certain assessments previously made by them, as shown in their original report, were, by them, reduced in amounts. No objection was made to the filing of this report, but afterwards a motion was made to reject it, but the motion so made is not in the record, and hence we are unable to ascertain the grounds upon which it was based, and as it was subsequently withdrawn, the action of the court in permitting the report to be made is not properly before us for review. At the December term, 1882, a change on the bench having in the interim occurred, the motion to strike out the remonstrance, which had been previously overruled by the former judge of the court, was, without being renewed, summarily and irregularly sustained by the court, and thereupon an order was made approving and confirming the reports of the commissioners and directing the construction of the drain as located. Afterwards, but at the same term, Stephen R. Hosmer and Charles C. Hildreth, two of the persons who had joined with Matilda Parry in said remonstrance, moved the court for leave to verify the remonstrance and re-file the same, and in support of their motion presented an affidavit in which it was, with other facts, stated that the remonstrance had been struck out by the court because it was verified by Matilda Parry alone, and that her subsequent withdrawal therefrom left it without verification, and that said ruling and action of the court had greatly surprised and wronged them, as they had relied upon the previous ruling of the court that the verification was, as to them, sufficient and all the law required, and that if they had supposed that any doubt existed as to its sufficiency, or had received any intimation from the court as to its insufficiency, they would have taken immediate steps to amend the remonstrance as to its verification. This motion was overruled by the court. And the appellant Munson also then appeared and presented his application, duly verified, for leave to file a remonstrance against the confirmation of said report, in which it was stated that the commissioners had been ordered to report their proceedings to the court on the first day of its next term, being the December term, 1881, thereof, at which time he, by his agent, appeared in court, where he remained for the three succeeding days, for the purpose of filing a remonstrance against the report of the commissioners in the event that his land was assessed by them for the construction of the drain, and as no report was then made by them, he supposed and believed that the proposed drain had been abandoned; that no opportunity had been afforded him until then to remonstrate against the report, although he was largely interested therein, as his land had been assessed over $ 200 for the construction of the drain, when in truth and in fact its construction would be a positive damage thereto, and that the construction of the drain would not be of public utility or benefit any public highway in the county, nor conduce to the public health, and that the expense of its construction would exceed its possible benefits, and that if constructed as proposed it would not drain the lands assessed therefor; that he was a non-resident of the State, and that his application to file said remonstrance was made at the earliest time after discovering the fact that said report had been filed after the time fixed by the court therefor had expired.

The court refused to permit the remonstrance to be filed. An appeal to this court from the final order and proceedings of the court below was then prayed by Hosmer, Hildreth and Munson, but before the appeal was perfected Hosmer died, and thereupon Lucy A. Hosmer, as his sole devisee and executrix of his will, united with Hildreth and...