Rockey v. Hershman
| Decision Date | 06 March 1923 |
| Docket Number | 23,636 |
| Citation | 138 N.E. 339,193 Ind. 168 |
| Parties | Rockey et al. v. Hershman et al |
| Court | Indiana Supreme Court |
Rehearing Denied May 1923.
From Hamilton Circuit Court; Ernest E. Cloe, Judge.
Petition by Roy Hershman and others to tile and cover a portion of an open drain. Joseph Rockey and others filed remonstrances to the report of the drainage commissioners. From a judgment confirming the report, and ordering the work done, the remonstrators appeal.
Affirmed.
George W. Osborn, for appellants.
J. F Neal and N. C. Neal, for appellees.
This was a proceeding to tile and cover a portion of an open public drain, known as the John M. Endicott drain, as provided by § 19 of an act of the General Assembly in force April 10, 1907, as amended in 1913, Acts 1913 p. 152, § 6174 Burns 1914.
On August 10, 1917, Roy Hershman, S. A. Hershman, Edward Harrell, W. H. Ross, and L. W. Pearson, owners of tracts of land affected and assessed for the construction of the Endicott drain, filed their petition in the Hamilton Circuit Court, and the court in which the original petition was filed and the proceedings had for the construction of the Endicott drain, stating, in part, that a portion of that drain was out of repair; that it could be more economically repaired and be made to do the work intended by tiling it. On October 2, 1917, by leave of court, Lora W. Pearson withdrew his name from the petition. Such proceedings were then had that the court ordered the petition docketed as a pending cause. Thereafter, on February 25, 1918, the cause being at issue upon the petition and remonstrance thereto filed, evidence was heard, and the court thereupon found that a certain portion of the Endicott ditch (describing it) was out of repair and not sufficient to properly perform the drainage for which it was designed and intended, and referred the petition to drainage commissioners for report. Afterwards, on July 2, 1918, the commissioners made their report in favor of the proposed work and, among other things, reported that certain named persons, among whom were Mary F. Osborn, Albert Silas Osborn, and Retta Lee, who were not mentioned in the petition and had not remonstrated, were owners of land affected by the proposed repairs. Thereupon the court ordered notice to these parties of the filing of the report, and fixed the time, July 15, 1918, for the hearing. On July 13, 1918, proof of notice was made of the filing of the commissioners' report and of the time of hearing to Albert S. Osborn, Mary F. Osborn and Retta Lee. Prior to the date for the hearing, and within time, certain interested parties whose lands were affected by the proposed drainage, filed separate remonstrances. On December 30, 1918, upon application of the petitioners, the report of the drainage commissioners was set aside, and the matter referred back to the same commissioners for a new report. On February 15, 1919, the commissioners, among other things, reported the proposed drain as practical; that when completed it would improve public health, reclaim certain lands, and was of public utility; that it would benefit several highways; and that the cost of construction, repairs, damages and expense incident to the proposed work would be less than the benefits resulting therefrom. The report definitely fixed the route of the proposed drain and the best method for securing an outlet therefor; the manner in which the entire work should be done; estimated total cost of the proposed construction; named the persons and gave a brief description of the land owned by each of them, with the assessment against each tract, the highways benefited, and the assessment against the township in which they were located. The aggregate assessments equaled the total cost of the proposed improvement.
To this report, eleven landowners separately and severally remonstrated, assigning statutory causes 1, 5, 7, 8, 9 and 10, as authorized by § 4 of an act in force April 10, 1907, as amended in 1917, Acts 1917 p. 292, § 6143 Burns' Supp. 1921. The issue formed by the petition and the several remonstrances filed thereto were submitted to the court for trial, and, upon the evidence adduced, the court found that the report of the drainage commissioners should be confirmed; the assessments made thereby approved, and the proposed reconstruction should be established. Judgment was rendered accordingly, and the supervision of the work assigned to the county surveyor. Twelve of the parties against whom judgment was rendered separately and severally moved for a new trial, which was overruled, and this ruling and that the "court had no jurisdiction to pronounce the judgment appealed from" are assigned as errors.
Appellees have not discussed the merits, nor have they presented a motion to dismiss this appeal as to all or any of the appellants. They have been content to make certain general as well as specific assertions, tending to challenge the jurisdiction of this court to examine this case upon its merits. Counsel for appellants have not replied.
Appellees insist: (I) That the transcript in this case affirmatively shows that it is not full and complete in that it appears (a) that certain papers and proceedings are not copied therein, but are referred to as "here insert"; (b) the clerk's certificate refers to the "second remonstrance" and the "second report" of the drainage commissioners, when there are no order-book entries of such remonstrance or of such report. Meeting this objection, it is sufficient to say that it unmistakably appears that the report of the drainage commissioners and the remonstrances, and the action of the court thereon, to which reference is made in the clork's transcript by the words "here insert," were all superseded by the court's re-reference to the commissioners. Furthermore, the proceedings up to this point are not challenged. Hence it must necessarily follow that the omissions noted in the transcript by "here insert," of whatever character, could have no bearing on the questions which arose on the issues finally tried, resulting in the judgment from which this appeal was taken. It being apparent that the matters thus omitted were immaterial, we must approve the practice which left them out of the transcript. The objection relative to the "second remonstrance" and the "second report" is too trivial to warrant us in taking time and space to further consider it.
(II) It is next asserted that the assignment of errors does not comply with Rule 6 of this court, in that (a) the full names of all the parties to the proceedings are not stated; (b) that the names of appellants in this assignment do not correspond with the names mentioned in the several remonstrances; (c) that the names of the parties to this appeal do not correspond to the names making the motion for a new trial; (d) that the persons named in the assignment of errors are not the same as those mentioned in the pleadings.
Preliminary to our discussion of the questions here presented, it may be suggested that the assignment of errors in this court is appellant's complaint presenting questions of law only to be determined from the record. Furthermore, the long-settled practice and Rule 6 of this court require the assignment to contain, either in the title or in the body thereof, the full names of all the parties affected by the judgment from which the appeal is taken. This requirement is jurisdictional and must obtain in all cases except as otherwise modified by statute. Gunn v. Haworth (1902), 159 Ind. 419, 64 N.E. 911; Nordyke & Marmon Co. v. Fitzpatrick (1904), 162 Ind. 663, 71 N.E. 46.
In the instant case, the remonstrances were filed against the report of the commissioners. The remonstrators were the losing parties. All but one appealed, and one other person, a party to the judgment, joined with them, and all are named in the assignment of errors as appellants, but as to certain ones, the assignment does not contain their christian names in full. This being a drainage proceeding, according to rulings precedent, the drainage statute (§ 6141 Burns 1914, Acts 1907 p. 508) has been construed as modifying the above rule in this class of cases, so that, if the persons named in the assignment of errors correspond to the names given by the persons themselves in their own pleadings, or as given in the judgment, the assignment in that regard will be deemed sufficient. Goodrich v. Stangland (1900), 155 Ind. 279, 58 N.E. 148; Keiser v. Mills (1903), 162 Ind. 366, 69 N.E. 142; Smith v. Gustin (1907), 169 Ind. 42, 80 N.E. 959; Kline v. Hagey (1907), 169 Ind. 275, 81 N.E. 209; Nisius v. Chapman (1912), 178 Ind. 494, 99 N.E. 785.
This appeal was taken in term and in accordance with § 6143 Burns' Supp. 1921, supra, wherein it is provided that: "All parties shall take notice of and be bound by such appeal, and all proceedings in the matter of such drainage shall be stayed until its determination." Furthermore, § 675 Burns 1914, Acts 1895 p. 179, authorizes "any number of co-parties against whom a judgment has been taken" to prosecute a term-time appeal from such judgment to the Supreme Court without making other coparties not appealing parties to the appeal, and who "shall be bound by the judgment on appeal to the same extent as if they had been made parties," although they are not named appellants or appellees in the assignment of errors. H. C. Smith Coal Co. v. Finley (1921), 190 Ind. 481, 131 N.E. 5; Ward v. Yarnelle (1910), 173 Ind. 535, 91 N.E. 7; Pein v. Miznerr (1908), 170 Ind. 659, 663, 84 N.E. 981; Keiser v. Mills, supra; Smith, Trustee, v. Wells Mfg. Co. (1896), 144 Ind. 266, 269, 43 N.E. 131; Helms v. Cook (1915), 58 Ind.App. 259, 108 N.E. 147; Smith v. Wells (1919), 72 Ind.App. 29, 122 N.E. 334.
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