Pullin v. Arnold, 29158
| Decision Date | 09 December 1954 |
| Docket Number | No. 29158,29158 |
| Citation | 122 N.E.2d 858,234 Ind. 13 |
| Parties | Charles E. PULLIN, Eileen L. Pullin, Charles F. Wagner, Warren Gratner, Appellants, v. Harry J. ARNOLD, Helen M. Arnold, Helen Branson, Anita Brumley, Richard Streitmatter, Omer Waymire, Agent, Herbert Eib, Stella Eib, Louis Gratner, Ann Gratner, Howard Holmes, Alice Holmes, William Graf, Kittie M. Warr, Chas, H. Mullaney, James E. Yeoman, Lola V. Yeoman, Appellees. |
| Court | Indiana Supreme Court |
Charles M. Sands, Rensselaer, F. L. Wiltrout, Elkhart, or counsel, for appellants.
Cope J. Hanley, Rensselaer, for appellees.
This is an appeal from a judgment dismissing a petition for the establishment of a drain, entered on a finding that the petition should be dismissed for the reason that a remonstrance to the petition had been filed, signed by the owners of two-thirds in area of the acreage of the lands named in the petition.
The petition for the drain was filed July 30, 1952, and was signed by 9 petitioners. A bond was filed, and approved by the court, and August 14, 1952, was the date set for docketing the petition.
On the date set for docketing, the court found notice had been given as required by law, and ordered the cause placed upon the docket as a pending action. The court thereupon appointed two viewers to act with the County Surveyor.
On September 2, 1952, five of the petitioners and two of their wives filed a withdrawal of their names from the petition for the drain, and thereafter on the same date these parties, together with others owning more than two-thirds in area of the acreage of the lands named in the petition, filed their remonstrance, and prayed that the petition be dismissed. It is conceded that if the parties withdrawing from the petition could lawfully join in the remonstrance, the remonstrance was sufficient to defeat the petition for the drain by virtue of § 27-108, Burns' 1948 Replacement, which reads as follows:
'If, within twenty (20) days, exclusive of Sundays, from the day set for the docketing of such petition, the owners of two-thirds in area of the acreage of the lands named as such in the petition, or who may be affected by an assessment of benefits or damages, shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed at the cost of the petitioners.' Acts 1933, ch. 264, § 8, p. 1168.
When the cause was argued all parties agreed that there was no Indiana case directly deciding the issue presented in this appeal.
In special statutory proceedings like this, Black v. Campbell, 1887, 112 Ind. 122, 126, 13 N.E. 409, 411. This was a special proceeding for the establishment of a free gravel road, but in Crume v. Wilson, 1886, 104 Ind. 583, 586, 4 N.E. 169, 171, cited therein, this court said,
The general rule is that the withdrawal of names on a petition is a dismissal of it as to those withdrawn. Hord. ex rel. Stanley v. Elliott, 1870, 33 Ind. 220. 2 'When a party who has signed a petition for the doing or granting of something afterwards signs a remonstrance against the doing or granting of what he has petitioned for, it would seem reasonable that the one should counteract and destroy the effect of the other, if the remonstrance is presented before action has been had in accordance with the petition.' Noble v. City of Vincennes, 1873, 42 Ind. 125, 130.
The effect of the two-thirds remonstrance under § 27-108, Burns' 1948 Replacement, is to oust the court of jurisdiction to proceed with the drain. If the remonstrance in fact has as parties thereto the owners of two-thirds in area of the acreage of the lands named in the petition or who may be affected by an assessment of benefits or damages, the proceedings must be dismissed regardless of its merits.
The appellants do not question the right of the withdrawing petitioners to dismiss the petition as to them in this case at this stage of the proceeding, and with this we agree...
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Parker v. Seward School Tp. of Kosciusko County, 29812
...44 N.E. 469, 33 L.R.A. 313; State ex rel. Harry v. Ice, 1934, 207 Ind. 65, 69, 191 N.E. 155, 92 A.L.R. 1508; Pullin et al. v. Arnold et al., 1954, 234 Ind. 13, 16, 122 N.E.2d 858; McQuillin, Munic. Corp., Vol. 13, § 37.50, p. 184; Annotation 27 A.L.R.2d We reaffirm this rule. For the reason......
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...until the specific errors complained of have first been reviewed by the trial court. More recently in the case of Pullin v. Arnold, 1954, 234 Ind. 13, 15, 122 N.E.2d 858, 859, this court reaffirmed the policy of the law regarding the use of the rules of civil practice in special statutory p......
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