Ralston v. Beall

• Decision Date: 23 April 1892
• Docket Number: 15,387
• Citation: 30 N.E. 1095,171 Ind. 719
• Parties: Ralston et al. v. Beall et al. [1]
• Court: Indiana Supreme Court

30 N.E. 1095

171 Ind. 719

Ralston et al. v. Beall et al. ^[1]

No. 15,387

Supreme Court of Indiana

April 23, 1892

Rehearing Denied November 17, 1892.

From Miami Circuit Court; Daniel P. Baldwin, Judge pro tem.

Highway proceeding by John Ralston and others, against which Abram I Beall and others remonstrate. From a judgment for remonstrants, petitioners appeal.

Affirmed.

Roscoe Kimple, for appellants.

Stephen D. Carpenter, for appellees.

OPINION

McBride, J.

At the March session, 1882, of the Board of Commissioners of the County of Miami a petition was presented to the board, asking for the construction of a free gravel road, under the provisions of the act of March 3, 1877 (Acts 1877, p. 82 § 5091 et seq. R. S. 1881).

The petition was signed by the requisite number of qualified persons, and on June 21, 1882, all the necessary and proper preliminary steps having been taken, the matter was submitted to the board for final action, under § 5095, R. S. 1881. The board thereupon made the following finding and order: "And it appearing to the board by due proof that a majority of the resident landholders of Miami county, whose lands are reported as benefited, and ought to be assessed therefor, have subscribed the petition above specified, asking for such improvement herein reported, and the board, after due consideration thereof, and being fully advised in the premises, finds that public utility requires the establishment and construction of such gravel road. Therefore, in consideration of the fact that the bonding capacity of the township under the law regulating the issuing of bonds for such purpose has been exhausted, it is ordered that said report be continued for further action at such time as the board may deem expedient."

No further action appears to have been taken in the matter until the March session, 1888, of the board, when a remonstrance was filed against the construction of the road, and certain of the petitioners asked leave to withdraw their names from the petition. There was then a further continuance to the June session, 1888, when certain of the petitioners asked the board to make a final order for the construction of the road. Without recounting the intermediate steps, it is sufficient to say that at a special session of the board, held in August, 1888, the board permitted a large number of names to be withdrawn from the petition, over the objection of the remaining petitioners. Thereupon, it appearing that without the names withdrawn the petition was not signed by the required number of qualified persons, the petition was dismissed. On appeal to the circuit court this action of the board was sustained.

The only question presented by the record and argued by counsel grows out of the action of the court in permitting the withdrawal of the names of petitioners from the petition and the consequent dismissal of the cause.

Counsel for the appellants insists: (1) That after the finding by the board, of June 21, 1882, it was too late for any petitioner to withdraw; (2) that if they were entitled to withdraw after that time, such withdrawal could not result in defeating the jurisdiction of the cause.

Under the statute in question the board of county commissioners could assume jurisdiction of a proceeding of this character upon the filing of a petition signed by five or more of the landholders, whose lands would be assessed for the cost of the improvement, with proper bond, and could appoint viewers and an engineer to view and lay out the road, etc. § 5092 R. S. 1881. They, however, had no jurisdiction to make an order for the improvement until after the petition had been signed by a majority of the resident landholders of the county whose lands the viewers reported were benefited and ought to be assessed, and also the owners of a majority of the whole number of acres of all lands which they reported were benefited and ought to be assessed. § 5095, supra.

Whether the petition is signed by the requisite number of qualified persons remains an open question until the board considers and passes upon the report of the viewers. At any time before the board makes its finding, names may be added to or withdrawn from it. The withdrawing of the name of a petitioner simply dismisses the proceeding as to himself. After the finding has been made the right to withdraw names no longer exists. Black v. Campbell (1887), 112 Ind. 122, 13 N.E. 409; Hord v. Elliott (1870), 33 Ind. 220; Little v. Thompson (1865), 24 Ind. 146.

This is simply applying to proceedings of this character the rules of practice in analogous civil cases. In such cases a party may dismiss his case at any time before the jury retires or the court announces its finding. § 333...