Pittsburgh, Cincinnati, Chicago And St. Louis Railway Company v. Hodge
| Citation | 94 N.E. 324,175 Ind. 669 |
| Decision Date | 15 March 1911 |
| Docket Number | 21,681 |
| Parties | Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Hodge et al |
| Court | Supreme Court of Indiana |
Rehearing Denied May 31, 1911.
From Grant Circuit Court; H. J. Paulus, Judge.
Drainage proceedings by William D. Hodge and others, against which the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company remonstrates. From a judgment for petitioners, remonstrant appeals.
Affirmed.
George E. Ross, for appellant.
St John, Charles & Gemmill, for appellees.
This was a proceeding to establish a drain under § 6140 et seq. Burns 1908, Acts 1907 p. 508. 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 were not assessed as benefited. Thereupon the court ordered notice to be given to appellant, returnable November 15. The affidavit, proving service of notice recites that the notice was served, on November 1, 1909, on "the agent of the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company." On November 15, 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 ten days, exclusive of Sundays, from the time of service of the notice 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 remonstrance, confirming the report of the commissioners, and establishing the drain.
Under § 6142, supra, 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 ten 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 (1904), 162 Ind. 366, 69 N.E. 142; Ginn v. Hinton (1910), 174 Ind. 296, 91 N.E. 1093.
Appellant contends that service of notice on "the agent of the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company," is not service upon it; that the statute (§ 6142, supra) 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; Pittsburgh, etc., R. Co. v. Machler (1902), 158 Ind. 159, 63 N.E. 210; Kirkpatrick, etc., Co. v. Central Electric...
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