Myers v. Sell

• Citation: 81 N.E.2d 846,226 Ind. 608
• Decision Date: 09 November 1948
• Docket Number: 28366.
• Parties: MYERS et al. v. SELL et al.
• Court: Supreme Court of Indiana

81 N.E.2d 846

226 Ind. 608

MYERS et al. v. SELL et al.

No. 28366.

Supreme Court of Indiana

November 9, 1948

Appeal from Circuit Court, Newton County; Victor K Roberts, Special judge.

J Edward Barce and Ralph Bower, both of Kentland, Thomas F O'Mara, of Terre Haute, and Emmett M. LaRue, of Rensselacr, for appellants.

George F. Sammons, of Kentland, and Cope J. Hanley, of Rensselaer for appellees.

YOUNG, Chief Justice.

This is an appeal from the same decree which was involved in the original action in this court entered State of Indiana v Roberts, as Special Judge of the Newton Circuit Court. Opinion and mandate in that case is reported in Ind.Sup., 76 N.E.2d 832, and reference may be made to the opinion in that case for recital of facts and record not stated here. In that action the State sought a writ of prohibition to stop further proceedings in the drainage project involved in the case before us as against the State Highway Commission of Indiana and to prohibit the respondents in said action from carrying out that part of the decree in said proceedings which requires the construction of a new bridge at the cost of the State Highway Commission of Indiana at the point where the drain involved crosses State Highway No. 41. We declined to interfere with the execution of the decree in the cause before us, except that part thereof which orders the State Highway Commission to build a bridge on Highway 41 over the ditch or drain authorized by said decree.

Many of the questions of law presented and contentions made in the case before us were presented and made in the original action referred to and decided therein, and we feel disposed to follow in the matter before us the conclusions reached in our opinion in that case.

The appellants have filed with us an assignment which sets up 27 errors alleged to have been committed by the trial court. Some of these have been waived by failure to present them in the propositions, points and authorities set out in the brief. It is not urged in the brief that there is no evidence to show that the alteration and repair of the ditch will be of public utility, nor to sustain the assessments made, nor that the benefits do not exceed the cost, not including the cost of the bridge. Those presented boil down to only a few fundamental questions. The principal question which is presented by the brief is that the court had no jurisdiction over the State of Indiana, and that the State of Indiana was a necessary party, and that therefore the court was without jurisdiction of the action. We considered this proposition in our opinion in State v. Roberts, supra, and upon the authority of that case and for the reasons therein stated we hold that the court had jurisdiction of the drainage proceeding involved in the matter before us.

The statute under which the proceeding here involved was brought reads in part as follows:

'(a) The owner or owners of five (5) per cent in acreage of the land affected by and assessed for the construction of any public drain under any law of this state shall have the right to file a petition and therein allege:

'(1) That such public drain, or any part thereof, being out of repair, is not sufficient to properly perform the drainage for which it was designed and intended, and may be more economically repaired, by tiling and covering, or by increasing the size of the tile and changing the course, or extending the length thereof, or by removing the tile and converting the drain into an open ditch, or by changing the course, deepening, widening or extending the length of an open drain, or by making any other change therein which would be of public utility; or

* * *

* * *

'(b) No petition filed in conformity with the provisions of paragraph (1) of subsection (a) of this section shall contemplate the increasing of the tile, the average deepening and widening or the extension more than ten (10) per cent of the original plans and specifications.' § 27-120, Burns' 1948 Repl.

Appellants assert that the ditch here involved was originally an open ditch; that later this open ditch was converted into a tile ditch, and that this converted tile ditch is now sought to be reconverted into an open ditch. They contend that the foregoing statute requires that there be an allegation in the petition filed herein that the new open ditch will not increase the average depth and width or length of the original open ditch more than 10 per cent of the original plans and specifications therefor, and that without such an allegation the court was without jurisdiction to proceed.

It has been decided many times by this court that jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings then before the court belong. Daniels v. Bruce, 1911, 176 Ind. 151, 95 N.E. 569; Chicago & A. R. Co. v. Sutton, 1892, 130 Ind. 405, 410, 412, 30 N.E. 291; Gold v. Pittsburgh, etc. R. Co., 1899, 153 Ind. 232, 241, 53 N.E. 285; Lemasters v. Williams Coal Co., 1933, 206 Ind. 369, 372, 189 N.E. 414; Ewbank's Manual of Practice, 2d Ed., § 136, p. 290.

The statute quoted earlier in this opinion, gives the court general jurisdiction in the matter of repairing and altering ditches and the subject matter of this case clearly belongs in that general class. The filing of the petition invoked the jurisdiction of the court to decide all questions involved in such a proceeding. Cauldwell v. Curry, 1883, 93 Ind. 363. In the case last cited an injunction had been sought to restrain the collection of a ditch assessment and certain errors and irregularities were pointed out which it was claimed deprived the board of commissioners of jurisdiction, thus permitting a collateral attack by injunction. Judge Elliott held otherwise and in the course of the opinion, on page 364, said:

'The filing of the proper petition invokes the jurisdiction of the board of commissioners in the matter of the particular ditch therein described, and the statute invests the board with general jurisdiction of the subject-matter of ditches (citing cases).'

In Chicago & A. R. Co. v. Sutton, supra, the appeal involved the validity of the order of the board of county commissioners of Huntington County which purported to establish a highway. The statute provided that no county road should be less than 30 feet wide. The petition involved asked for the establishment of a highway, part of which was to be only 20 feet wide. It was contended that because of this the court was without jurisdiction and the proceedings were void. This court held that the fact that the petition showed that the road in part was to be narrower than the statute contemplated did not deprive the board of jurisdiction. The court held that the general subject matter was within the jurisdiction of the board and said, 130 Ind. on page 412, 30 N.E. at page 293.

'Jurisdiction does not depend upon the sufficiency or the correctness of the averments of the petition, but upon the subject-matter to which it relates. As we have already seen, the subject-matter was within the jurisdiction of the board. * * *'

This case is very closely analogous to the case before us, and the quoted language answers specifically the contention of appellants which we are discussing.

If the evidence showed an increase of the average width and depth or length of the ditch by more than 10 per cent we would have a different question. It would be error for the court to order such a change but we do not believe that such an allegation in the petition is jurisdictional. Drinkwater v. Eikenberry, 1945, 224 Ind. 84, 89, 64 N.E.2d 399. We do not have to go as far as we went in the Drinkwater case. In the Drinkwater case there was an affirmative showing that the new...