Northern Indiana Land Co. v. Tyler

• Decision Date: 26 May 1908
• Docket Number: No. 21,062.,21,062.
• Citation: 170 Ind. 468,84 N.E. 828
• Parties: NORTHERN INDIANA LAND CO. et al. v. TYLER et al.
• Court: Indiana Supreme Court

170 Ind. 468

84 N.E. 828

NORTHERN INDIANA LAND CO. et al.

v.TYLER et al.

No. 21,062.

Supreme Court of Indiana.

May 26, 1908.

Appeal from Circuit Court, Jasper County; Chas. W. Hanley, Judge.

Drainage proceedings by William H. Tyler and others, in which the Northern Indiana Land Company and others filed remonstrances to, and moved to strike out, the preliminary report of the drainage commissioners. The court overruled the motion to strike out, and found against the remonstrances, and referred the petition back to the drainage commissioners, with directions to proceed with the work. From the order referring back the petition, remonstrators appeal. Affirmed.Foltz & Spitler, Wm. H. Parkison, and J. R. Bierma, for appellants. Geo. A. Williams, for appellees.

MONKS, J.

This appeal is from an interlocutory order referring the petition back to the drainage commissioners, with directions to proceed with the work, etc., made by the court below under section 3 of an act concerning drainage approved March 6, 1905 (Acts 1905, p. 458, c. 157). It appears from the record that the proceeding was brought under said act in the court below for the drainage of the lands described in the petition. Such proceedings were had in said cause that the court, at its September term, 1906, referred the petition to the drainage commissioners, directing them to meet on November 14, 1906, and that they file their preliminary report on or before December 3, 1906. The drainage commissioners, without asking or obtaining any order of the court extending the time on March 18, 1907, after the close of the February term, 1907, filed their said report. On April 6, 1907, appellants filed separate pleadings in said cause, which they denominate “remonstrances to the preliminary report.” On April 9, 1907, the same being the second judicial day of the April term, 1907, of said court, appellants refiled their said “remonstrances to the preliminary report” in said cause, and said “cause was set for trial May 2, 1907.” Afterwards, on May 2, 1907, the day set for trial, appellants again refiled said “remonstrances to the preliminary report,” and they also, on said day, filed a motion to strike out said preliminary report, for the reason “that said report was not filed on or before December 3, 1906, as required by the order of court, but was filed on March 18, 1907, without obtaining any order of court extending the time for the filing thereof.” The court overruled said motion, and the case, being at issue, was submitted to the court for trial, and the court found “against all said remonstrances on file,” and found affirmatively as to the third and fourth items of said preliminary report required by said section 3 of said act of 1905 (Acts 1905, pp. 460, 461, c. 157), and referred the petition back to the drainage commissioners, with directions to proceed with the work and make a final report as provided in section 4 of said act.

Appellants insist “that as said preliminary report was not filed within the time ordered by the court it was void, and the court erred in overruling the motion to set the same aside”-citing Munson v. Blake, 101 Ind. 78;Lipes v. Hand, 104 Ind. 503, 1 N. E. 871, 4 N. E. 160;Blake v. Quivey, 113 Ind. 124, 14 N. E. 916;Claybaugh v. Baltimore, etc., R. Co., 108 Ind. 262, 9 N. E. 100. It was held in said cases cited by appellant, under the circuit court drainage laws of 1881 and 1883, that when the report of the commissioners is not filed within the time fixed by the court, and no extension of time is asked for or other action taken, the petition may be dismissed on motion of the party affected. It is also held, however, in Blake v. Quivey, supra, that such motion “must be made at the earliest opportunity,” and that the same “comes too late after the party has appeared and filed a remonstrance thereto, or asked leave to do so, and should be overruled.” Said section 3 of the act of 1905 makes no provision for a remonstrance against said preliminary report, but only provides for filing “exceptions thereto.” The most that appellants can ask, therefore, is that the remonstrance filed by them to the preliminary report be treated as an exception to said report under the provisions of said section 3 of said act of 1905. Treating the same as exceptions to said...