Pittsburgh, Cincinnati, Chicago And St. Louis Railroad Co. v. Machler

• Decision Date: 12 March 1902
• Docket Number: 19,415
• Citation: 63 N.E. 210,158 Ind. 159
• Parties: Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company v. Machler et al
• Court: Indiana Supreme Court

63 N.E. 210

158 Ind. 159

Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company v. Machler et al

No. 19,415

Supreme Court of Indiana

March 12, 1902

From LaPorte Circuit Court; J. C. Richter, Judge.

Proceeding for the establishment of a drain in which the Pittsburgh Cincinnati, Chicago and St. Louis Railroad Company remonstrated. From a judgment establishing the drain, the remonstrant appeals.

Affirmed.

N. O Ross and G. E. Ross, for appellant.

L Darrow, E. E. Weir and M. H. Weir, for appellees.

OPINION

Hadley, J.

Appellant was a remonstrant in a proceeding instituted by the appellees under the drainage act of 1885 (§ 5623 et seq. Burns 1901), for the construction of a ditch. The judgment of the circuit court is assailed for apparent want of jurisdiction in this: (1) Because there was no petition on file when the primary notice was given; (2) because on the day stated in the notice for docketing there was no petition on file to be docketed, nor any action taken in the proceeding; and (3) because the petition was filed on the same day it was docketed, which was three days after the time stated in the notice. The record shows that the petitioners caused a notice that they had filed in the clerk's office of the LaPorte Circuit Court their petition for drainage of certain described lands in said county, setting forth the route of the proposed drain as described in the petition, and the names of the owners of the lands affected, and that said petition would be docketed on February 3, 1899, to be served personally on divers persons and corporations so named, including appellant, and by posting like notices to all named owners, at the court-house door, and at three public places in each township along and near the line of the proposed drain, which said posting was on the 9th day of January, and said personal service on the 13th, 14th, and 16th days of January, 1899. February 6, 1899, the petitioners filed their said petition in the LaPorte Circuit Court, and having made proof of the service of notice as above stated, the court ordered the petition docketed as a pending cause. No demurrer, remonstrance, or objection having been filed within ten days after docketing, the petition was referred to the drainage commissioners, with instructions when and where they should meet and when they should report. The drainage commissioners, in conformity to the requirements of § 5624 Burns 1901, made and filed their report favorable to the construction of the drain, and within ten days after such filing appellant filed a remonstrance on the various grounds allowable under § 5625 Burns 1901. Divers other remonstrances were also filed under said latter section.

November 16th the commissioners' report, with the various pending remonstrances, was submitted to the court for trial. Appellant requested in writing upon its part a special finding of facts and conclusions of law. November 21st the court announced a general finding on the other remonstrances. November 22nd a special finding of facts and conclusions of law were filed on appellant's remonstrance, finding in substance: That it would be practicable to accomplish the proposed drainage at a cost less than the aggregate benefits; that the proposed work would improve the public health, and benefit public highways in three townships, and be of public utility; that the ditch would be sufficient to drain properly the lands affected; that from the beginning said proposed drain follows the course of a natural stream, which flows all the year round, and which passes through and underneath the railroad bridge of appellant, known as bridge 463, and thence flowing southwesterly a distance of two and one-half miles empties into the Kankakee river; that on the north, and along appellant's right of way in four sections, is a large tract of low land, all of which has its outlet through and under said bridge 463, and appellant's right of way through said four sections becomes inundated with water, which rises at times to the ties, rendering the road bed soft, and dangerous to operate trains upon, and more expensive to maintain than it would be if properly drained; that the proposed ditch will be sufficient to drain effectually said four sections and right of way through the same, and appellant will be benefited in excess of all damages the sum of $ 600. November 23rd the court made a general summing up by items of all modifications of the original assessments, as a result of the remonstrances, including appellant's, and adjudged in one general order that the report of assessments as modified by the court should be held to be the true assessments, and that the commissioners' assessments, as thus modified, should stand confirmed, and the drain established.

Whatever the fact may be with respect to the presence or absence of the petition from the clerk's office at the time the notice of filing the petition was served or on the day set for docketing, or the subsequent filing in court and docketing of the petition on the same day, appellant is not in a situation to raise any question concerning it. The record shows that appellant was personally served with such notice twenty days before the petition was docketed, and within the time prescribed by the statute it appeared and filed its remonstrance, challenging the assessment against its right of way upon all permissible grounds. Having appeared before the court and pleaded to the merits of the proceeding and assessment, without making any objection to the sufficiency of the notice, or the regularity in filing the petition, that act will be held to be a waiver of all questions pertaining to the jurisdiction of the court growing out of such matters. Ford v. Ford, 110 Ind. 89, 10 N.E. 648; Sunier v. Miller, 105 Ind. 393, 4 N.E. 867.

Invoking questions in the right of others against the validity of a judgment for want of notice or other jurisdictional fact is a collateral attack by the party doing so, and as against a collateral attack a finding of the court that notice has been given, or other facts necessary to jurisdiction has been established, is conclusive, unless the record affirmatively discloses that the contrary is true. Steele v. Empsom, 142 Ind. 397, 41 N.E. 822; Perkins v. Hayward, 132 Ind. 95, 103, 31 N.E. 670; Hackett v. State, 113 Ind. 532, 15 N.E. 799; Pickering v. State, 106 Ind. 228, 6 N.E. 611.

Appellant argues that, in the absence of an affirmative showing that a petition was on file in the clerk's office when the notice was served and on the day fixed for docketing, a notice that such was the fact amounts to no notice at...