Osborn v. Sutton

Decision Date14 December 1886
Citation9 N.E. 410,108 Ind. 443
PartiesOsborn and others v. Sutton and others.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Howard county.

M. Garrigus, John E. Moore, and Bell & Purdum, for appellants. O'Brien & Shirley and Elliott & Kirkpatrick, for appellees.

Elliott, C. J.

On the eleventh day of March, 1882, the appellees petitioned the board of commissioners of Howard county to establish a free gravel road, and to direct an assessment of benefits and damages to be made. Viewers were thereupon appointed, and a report was made by them on the fourteenth day of June, 1882. On this report the proper order was made, and William Middleton, David Greeson, and William H. Conwell were appointed a committee to make the assessment. On the twelfth day of September, 1883, nine of the appellants appeared, and moved the board to dismiss the petition and proceedings, assigning as the causes for the motion- First, that the petition was not signed by a majority of the resident freeholders, and that it was not so recited in the order; second, that the order appointing the committee was made on the seventh day of June, 1882; that no entry of continuance was made, although three regular sessions of the board had been held in the interval between the time the motion was made and the order entered appointing the committee; and that changes were made in the ownership of lands during that period. The petitioners moved to strike from the files the motion of the appellants, and the motion of appellees was sustained.

There was no error in this ruling. The board of commissioners did not lose jurisdiction of the cause by reason of the failure to enter an order continuing the proceedings. Where jurisdiction is once acquired, it is not lost by the omission to enter orders continuing the cause. Stoddard v. Johnson, 75 Ind. 20, see page 34; Black v. Thomson, 107 Ind. 162; S. C. 7 N. E. Rep. 184. Had there been no notice of the time fixed for the meeting of the viewers, or had the time fixed been disregarded, a very different question would have been presented. Hobbs v. Board, etc., 103 Ind. 575; S. C. 3 N. E. Rep. 263. Here there was notice to the viewers, and they did meet at the time designated, but the committee appointed to make the assessments delayed reporting. If the statute required the committee to report at a fixed time, there would be much force in the contention of appellants, but there is no such provision in it. The statute directs that the report shall be filed with the auditor, and that he shall give notice of the time and place that the commissioners will meet to consider the report; thus giving an ample opportunity to the land-owners to be heard. Rev. St. § 5096. The case is therefore essentially different from those in which the statute directs that the report of assessors shall be made at a designated time; so that the cases of Hobbs v. Board, etc., supra, and Claybaugh v. Baltimore, etc., Co., ante, 100, (this term,) are not in point.

It was not necessary for the board of commissioners to enter a formal order declaring that it had jurisdiction of the case, or that all jurisdictional facts had been shown. A general order or judgment is a sufficient declaration of jurisdiction, for the assumption of authority is an assertion of jurisdiction without any formal statement of the facts essential to give jurisdiction. Cauldwell v. Curry, 93 Ind. 363;Platter v. Board, etc., 103 Ind. 360; S. C. 2 N. E. Rep. 544; Carr v. State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Jackson v. State, 104 Ind. 576; S. C. 3 N. E. Rep. 863; Pickering v. State, 106 Ind. 228; S. C. 6 N. E. Rep. 611. Here there is a recital of many of the essential facts, and an order directing the establishment of the road and appointing a committee to assess benefits; so that it is quite clear that the order sufficiently asserts jurisdiction.

Where, as in such cases as the present, the land-owner is entitled to notice of the filing of the report of the committee appointed to assess benefits, he is not, at all events, entitled to a dismissal of the petition because of a delay of the committee in making the report. Palmer v. Updegraft, 107 Ind. 181; S. C. 6 N. E. Rep. 353. Whether the delay might or might not be made the basis of an exception to the report is not here the question; for the question here is, will such an objection sustain a motion to dismiss the petition? The section of the statute we have referred to gives the land-owner ample opportunity to except to the report, but it does not enable him to secure a dismissal of the petition by an objection based on the action or non-action of the committee.

The committee to assess benefits was appointed on the ninth day of June, 1882, and no objection was made to the competency of its members until January 25, 1884, when the appellants objected to the competency of two of them, on the ground that they had been viewers under the order of the board; but, in the same motion, they objected to the appointment of a new committee. We think that there was no error in overruling the appellant's objections. One reason for this is that they assumed inconsistent positions, one effectually destroying the other. The old maxim, He is not to be heard who alleges things contradictory to each other,” applies here with full force. Another reason is that the objection came too late. It should have been made at the time the committee was appointed, or, at least, within a reasonable time after the appellants had knowledge of the alleged incompetency of the committee. Smith v. Smith, 97 Ind. 273;Carr v. State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Palmer v. Updegraft, supra. The principle here involved is the same as that which prevails respecting the impaneling of juries, for the objection must be presented at the time the jury is selected, or at the time it becomes known, or it will be deemed waived. Shular v. State, 105 Ind. 289; S. C. 4 N. E. Rep. 870. It is therefore not necessary to decide whether the members of the committee objected to were or were not competent.

The objection that the petition was not subscribed by the requisite number of freeholders cannot be successfully made after the board of commissioners has adjudicated that question. It was adjudicated in this case after notice to the appellants, and it was too late to present the objection that there was not a sufficient number of qualified petitioners after the report of the viewers had been approved, and the committee appointed. Palmer v. Updegraft, supra, and cases cited; Forsythe v. Kreuter, 100 Ind. 27;Washington Ice Co. v. Lay, 103 Ind. 48; S. C. 2 N. E. Rep. 222; Breitweiser v. Fuhrman, 88 Ind. 28, and cases cited; Little v. Thompson, 24 Ind. 146.

There was no error in appointing a member of the committee to take the place of one of the...

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44 cases
  • Conrad v. Hausen
    • United States
    • Indiana Supreme Court
    • October 9, 1908
    ...Peed, 98 Ind. 420;Anderson v. Baker, 98 Ind. 587;Updegraff v. Palmer, 107 Ind. 181, 183, 6 N. E. 353, and cases cited; Osborn v. Sutton, 108 Ind. 443, 447, 9 N. E. 410;Northern, etc., Co. v. Tyler (Ind.) 84 N. E. 828, 829, and cases cited. In Higbee v. Peed, supra, the court, in speaking of......
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