Prezinger v. Harness

• Decision Date: 29 March 1888
• Citation: 16 N.E. 495,114 Ind. 491
• Parties: Prezinger v. Harness.
• Court: Indiana Supreme Court

114 Ind. 491

16 N.E. 495

Prezinger

v.Harness.¹

Supreme Court of Indiana.

March 29, 1888.

Appeal from circuit court, Cass county; Lyman Walker, Judge.

Action to quiet title. Judgment for plaintiff. Defendant appeals.Nelson & Myers and D. P. Baldwin, for appellant. C. N. Pollard, for appellee.

Mitchell, C. J.

Harness complained of Prezinger in the court below, and charged that the latter was without any right, asserting some adverse title, claim, or interest in certain lands of which the former was the owner; thereby casting a cloud upon the plaintiff's title, which he prayed might be quieted. There was a judgment for the plaintiff, and a decree quieting the title according to the prayer of the complaint. The evidence was incorporated in a duly-authenticated bill of exceptions, which is properly certified to this court. Wagoner v. Wilson, 108 Ind. 210, 8 N. E. Rep. 925. It appears therefrom that in the year 1876 certain petitions were filed and proceedings had before the board of commissioners of Cass county, for the location and establishment of a drain, or, rather, of several drains, which are said to constitute practically one system of drainage. These proceedings were instituted and carried on under the act of 1875. St. 1876, p. 428. One set of viewers was appointed to examine and report upon the several ditches petitioned for, and in due time the report of the viewers was filed with the auditor. Thereupon the auditor gave notice of the pendency and prayer of the several petitions, and that the hearing had been set for the 15th day of December, 1877; that being a date when the board would not be in regular session according to the law fixing the time for the sessions of the board of commissioners of Cass county. The board met at the time appointed for the hearing; and, remonstrances against the report of the viewers having been filed, reviewers were appointed. Subsequently, at the regular March term, the remonstrances were withdrawn; and after finding, in effect, that sufficient notice of the intention of the petitioners to make their several applications for the ditches, theretofore petitioned for, had been given, the board found that the several ditches were necessary and conducive to public health, etc., and ordered the drains to be established as prayed for. The report of the viewers allotted the construction of certain portions of the ditch to the appellee, Harness. The construction of the portions so allotted were after wards, owing to the failure of the appellee to perform the work allotted him, duly awarded by contract to one Newhouse. The work was constructed by the contractor, and duly accepted, and the amount of the costs thereof placed upon the tax duplicate, and the appellee's real estate, against which the amount was assessed, duly sold and bid in by Prezinger, who in due time received a deed. To remove the cloud thus cast upon the title to his land, the appellee commenced this suit.

It is contended on his behalf that the proceedings of the board of commissioners which resulted in a final order establishing the ditch are irregular and void; and, among the reasons presented, the first one is that it was not shown that the board of commissioners was legally convened in special session on the 15th day of December, 1877, that being the time appointed in the notice for the hearing of the matters involved in the petitions and report of viewers. This position is not maintainable. The petitions, report of viewers, and the notice given by the county auditor, together with the several findings and orders of the board made during the progress of the proceedings, were all introduced in evidence. Now, it is doubtless true that some of these matters were considered, and some of the proceedings had, at a special session of the board. They are admitted in evidence, however; and there is nothing disclosed, nor was it necessary that there should have been, touching the manner in which the board of commissioners was convened. While it is quite true that county commissioners are bodies of special and limited jurisdiction, and that they can only transact business when lawfully convened, yet, in respect to the regularity and legality of their special or called sessions, the same presumptions are indulged when their proceedings are collaterally assailed as prevail in favor of the sessions of other courts. Stoddard v. Johnson, 75 Ind. 20. The statute under which the proceedings in question were had expressly authorized boards of commissioners, either at a regular or called session, to cause ditches and drains to be constructed. Where there is authority for holding special or adjourned terms of court, and an adjourned or special term is held under color of authority, the proceedings are not void. Smurr v. State, 105 Ind. 125, 4 N. E. Rep. 445. It has been repeatedly held that the record need not show that the commissioners were duly served with notice to meet in special session; and that, if they actually meet in pursuance of notice from the auditor, the notice, and the service thereof, become practically unimportant and immaterial. Wilson v. Board, 68 Ind. 507;Jussen v. Board, 95 Ind. 567;Gipson v. Heath, 98 Ind. 100;Board v. Brown, 28 Ind. 161;State v. Board, 104 Ind. 123, 8 N. E. Rep. 811; White v. Fleming, (present term,) ante, 487. It must follow where, as here, proceedings of a board are drawn collaterally in question,-since the law expressly authorized the proceedings to be had at a special session, for the calling of which due provision had been made,-that the presumption will be indulged, at least until the contrary appears, that the board was duly convened. We should seriously question, though we decide nothing now upon the point, whether, as against a collateral attack, the presumption of regularity would not be conclusive until the proceedings were set aside or impeached in some way known to the law. Heagy v. Black, 90 Ind. 534;Town of Cicero v. Williamson, 91 Ind. 541;Carr v. State, 103 Ind. 548, 3 N. E. Rep. 375.

It constitutes no valid objection to the notice that the hearing was set for the 15th of December, a date when, according to law, the commissioners of Cass county would not be in regular session. The distinction between proceedings such as these here in question and those involved in City of Vincennes v. Windman, 72 Ind. 218, was very clearly pointed out in Jussen v. Board, supra. Where...