Pittsburgh, C., C. & St. L. Ry. Co. v. Hodge

• Decision Date: 15 March 1911
• Docket Number: No. 21,681.,21,681.
• Citation: 175 Ind. 669,94 N.E. 324
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. HODGE et al.

175 Ind. 669

94 N.E. 324

PITTSBURGH, C., C. & ST. L. RY. CO.

v.HODGE et al.

No. 21,681.¹

Supreme Court of Indiana.

March 15, 1911.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Petition by William H. Hodge and others to establish a drain, wherein the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company filed a remonstrance. From the judgment, the company appeals. Affirmed.

G. E. Ross, for appellant. St. John, Charles & Gemmill, for appellees.

MORRIS, J.

This was a proceeding to establish a drain under Burns' Statutes 1908, § 6140 et seq. Appellees' petition was referred to the drainage commissioners, who, on October 28, 1909, filed a report favorable to the construction of the proposed drain, and in which lands owned by appellant, not named in the petition, were reported as affected, but not assessed as benefited. Thereupon the court ordered notice given to appellant, returnable November 15th. The affidavit, proving service of notice, recites that the notice was served, on the 1st day of November, 1909, on “the agent of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.” On November 15th appellant entered a general appearance and filed a remonstrance, in which, among other things, it was alleged that appellant's land would be damaged by the construction of the proposed work in the sum of $10,000. On April 13, 1910, appellees filed their motion to dismiss appellant's remonstrance, because it was not filed within 10 days, exclusive of Sundays, from the time of service to it on November 1, 1909. This motion was sustained, and the remonstrance was dismissed. Appellant excepted. The court thereupon rendered judgment confirming the report of the commissioners and establishing the drain, and from this judgment appellant appeals. The alleged errors relied on are the sustaining of the motion to dismiss the remonstrance dismissing the same, confirming the report of the commissioners, and establishing the drain.

Under section 6142, Burns' Stat. 1908, and similar statutes, it has been held by this court that a landowner brought into the proceeding, for the first time, by the report of the drainage commissioners, must exercise his right to remonstrate within 10 days after service of notice of the hearing of the report. Goodrich v. Stangland (1900) 155 Ind. 279, 58 N. E. 148;Keiser v. Mills (1903) 162 Ind. 366, 69 N. E. 142;Ginn v. Hinton (1910) 91 N. E. 1093.

Appellant contends that service of notice on “the agent of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company” is not service upon it; that the statute (Burns', § 6142) requires notice to be served on the station agent of appellant in the county where the proceedings were instituted. Appellees meet this contention with the proposition that appellant cannot, after entering a general appearance and filing a plea on the merits of the cause, question the validity of the service of process, and we think appellees are correct. The validity of the issuance, service, and return of service of process may be tested by motion to quash, or by plea in abatement; but this must precede a general appearance to the action, and otherwise the party must be held to have waived all right to question defects in the process. Sunier v. Miller (1886) 105 Ind. 393, 4 N. E. 867;...