Perkins v. Haywood

• Decision Date: 16 June 1892
• Citation: 31 N.E. 670,132 Ind. 95
• Parties: Perkins et al. v. Haywood et al.
• Court: Indiana Supreme Court

132 Ind. 95

31 N.E. 670

Perkins et al.

v.Haywood et al.^*

Supreme Court of Indiana.

June 16, 1892.

Appeal from circuit court, La Grange county; J. M. Vanfleet, Judge.

Proceedings by petition of William Haywood and others to establish a ditch, Jacob Perkins and others remonstrating. From orders in favor of petitioners on their motion for a nunc pro tunc correction of judgment therein, and remonstrants' motion for a modification thereof, and on the merits, remonstrants appeal. Affirmed.Robert Lowry and J. W. Hanan, for appellants. Drake & Merritt, John Morris, and Jas. M. Barrett, for appellees.

McBRIDE, C. J.

April 8, 1884, the appellees commenced a proceeding in the La Grange circuit court to establish a ditch, pursuant to the provisions of the act of April 8, 1881, as amended March 8, 1883, (Rev. St. 1881, § 4273 et seq.; Acts 1883, p. 173 et seq.; Elliott, Supp. § 1175 et seq.) The appellants appeared and remonstrated. It is unnecessary to trace the steps in the proceeding further than to say that at the November, 1885, term of that court, it culminated in a trial, and a judgment of the La Grange circuit court establishing the ditch. On appeal to this court, that judgment was affirmed. Perkins v. Hayward, 124 Ind. 445, 24 N. E. Rep. 1033. The judgment of affirmance was rendered June 21, 1890. The record before us shows that on the 8th day of September, 1890, the appellees filed in the La Grange circuit court a motion, showing that while the court had found for the petitioners and against the remonstrants, and had rendered a judgment accordingly, establishing the ditch, and the clerk had taxed the costs of the proceeding against the remonstrants, no judgment had been entered for costs. This, the motion assumed and alleged, was solely because of the misprision of the clerk; it being apparently assumed that the judgment establishing the ditch carried with it a judgment for costs, which should, and but for the inadvertence, omission, and mistake of the clerk would, have been entered of record at the same time, and as a part of the judgment establishing the ditch. They thereupon asked for a nunc pro tunc entry of such judgment. The record further shows that on the 19th day of November, 1890, which was the third judicial day of the November term of the La Grange circuit court, the attention of the court was called to the foregoing motion by the attorneys for the appellees, who, in open court, moved for a nunc pro tunc entry in accordance with their written motion. To this the appellants by counsel on the same day entered a special appearance, and moved the court to dismiss or reject the motion, for the reason that they had no notice of it, and that there was nothing of record by which to make the amendment in the judgment asked for by the appellees. The record further shows that one week later, or November 26, 1890, the appellants filed in open court a written motion, of which the following is a copy, omitting the title: “(1) The defendants moved the court to render judgment in the above-entitled cause in favor of the defendants against the petitioners for the costs and charges accrued in said cause, as being laid out and expended by the defendants herein, on the ground and for the reason that it appears by the petition and record herein that the court has no jurisdiction of this proceeding, and that the character of the drain sought to be constructed is shown by the petition not to be one which is authorized by the statutes of the state of Indiana, or other laws of the state, and that the judgment for costs be thus modified. (2) The defendants further move the court separately and additionally to set aside, vacate, and annul the judgments heretofore rendered herein, on the 22d judicial day of the November, 1885, term of said court, establishing the drain prayed for in the petition herein, and approving the assessments made by the commissioners, and appointing John Price drainage commissioner to construct said work; for the reason that it appears by the petition that it is proposed herein to construct a drain to lower and drain certain of the fresh-water lakes of the counties of Steuben and La Grange, that such is one of the objects and purposes, and that this court has no jurisdiction thereof, nor any authority of law to proceed further therein. Lowry & Hanan, Attorneys for Defendants.” The record shows that the appellants thereupon moved the court to “render judgment in favor of the defendants in this cause, and to annul the judgment heretofore rendered on the 22d day of November, 1885, for the reason that said drainage will lower and drain certain fresh-water lakes in La Grange and Steuben counties.” On the 11th day of December, 1890, while both of the foregoing motions were pending, and not acted upon, the following record entry was made in the case: “Be it remembered that in vacation, before the September term, 1890, of the La Grange circuit court, to wit, August 22, 1890, there was filed in the clerk's office of the La Grange circuit court a certified copy of the opinion and judgment of the supreme court of the state of Indiana in the above entitled cause. And be it further remembered that afterwards, to wit, December 11, 1890, that being the 22d judicial day of the November, 1890, term of said court, on motion of James S. Drake, one of the counsel for petitioners in said cause, it was ordered by the court that said opinion be spread of record upon the order book of said court, which opinion is in words and figures following,to wit.” The opinion was thereupon spread upon the order book. The court then took up the two pending motions, and disposed of them in inverse order. The motion of the appellants, although the last filed, was ruled upon first. It was overruled, and the appellants excepted. The appellee's motion was sustained, and a nunc pro tunc entry was made of a judgment for costs in favor of the appellees, and against the appellants. The appellants contend that in both rulings the circuit court erred. Their contention is placed by them upon three grounds: (1) That as no notice was given them of the motion for the nunc pro tunc entry, and their appearance thereto was special, the court acquired no jurisdiction of their persons, and was therefore without authority to make an order binding upon them. (2) The record did not show any minute or memorandum made by the judge at the November, 1885, term, directing a judgment for costs, and there was therefore nothing upon which to base the nunc pro tunc entry. (3) The averments of the petition showed that the effect, if not the purpose, of the proposed ditch was to lower the water in certain fresh-water lakes, and for that reason the court had no jurisdiction of the subject-matter; citing Railroad Co. v. Ketring, 122 Ind. 5, 23 N. E. Rep. 527. And therefore that the judgment establishing the ditch was void, and could be disregarded or set aside by the court on motion.

We will consider these questions in the order stated. The drainage law, under which these proceedings were had, contemplates that, after judgment has been rendered by the court establishing a ditch and ordering its construction, the case shall still remain upon the docket of the court while the ditch is in process of construction. The ditch commissioner, to whose supervision the work is intrusted, acts throughout under direction of the court. Section 4279, Rev. St. 1881. Only when he reports showing the work done does it finally disappear from the docket. It does not follow, however, that the entire proceeding is in fieri during all of this time. The statute contemplates adversary proceedings. Provision is made for bringing before the court all persons interested in or affected by the work. Issues may be formed and tried, as was done in this case. But the judgment establishing the ditch, and ordering its construction, is a final judgment, which terminates the adversary proceedings. It is thereafter on the docket only for the purpose of carrying into effect the judgment actually rendered, and not for any action modifying or changing that judgment. So far, therefore, as the adversary proceedings are concerned, it is no longer in fieri after the expiration of the term when the judgment was rendered. After that time the court can make no order changing, modifying or correcting the judgment, except upon notice, again bringing the parties before it, or upon their voluntary appearance. In our opinion, the court in this case had no jurisdiction to act upon the motion for a nunc pro tunc correction of the judgment, without notice or the voluntary appearance of the appellants and a waiver of notice by them. Their appearance of November 19, 1890, being a special appearance, expressly challenging the jurisdiction of the court over their persons, did not waive notice. They had the right to appear specially for that purpose, and, if nothing had thereafter been done by them to waive notice, it is clear that the court would have been without authority to make the order. The action of the appellants, however, on the 26th day of November,...