Rogers v. Venis
| Decision Date | 15 March 1894 |
| Docket Number | 16,532 |
| Citation | 36 N.E. 841,137 Ind. 221 |
| Parties | Rogers v. Venis |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Judgment affirmed.
S Vanton, for appellant.
P. W Gard and J. C. Farber, for appellee.
On the 13th day of August, 1891, the appellee filed in the office of the clerk of the Clinton Circuit Court a petition praying for the establishment and construction of a public ditch therein described. The petition specifically describes the beginning and terminus of the proposed ditch and its courses, describes by congressional descriptions the lands to be affected and gives the names of the owners of such lands. It also alleges that it will benefit the lands described and a certain highway also described; that in the opinion of the petitioner such drainage can be accomplished in the cheapest and best manner by a ditch containing two lines of ten-inch tile securely covered, and that he believes the cost and damages of such drainage will be less than the benefits which will result to the owner of the land likely to be benefited thereby.
This petition was duly verified.
On the same day the petitioner prepared a notice containing a description of the proposed ditch as described in the petition, the land to be affected and the names of the owners of such land, and stated that the petitioner would, on the first day of the September term of the Clinton Circuit Court, for the year 1891, petition said court for the establishment and construction of the ditch and would, at the same time, move the court to docket the same as a cause pending therein. This notice was served on the appellant on the same day by delivering to him a copy thereof.
On the second day of the next ensuing term of the Clinton Circuit Court, the appellant entered a special appearance to the proceeding, and resisted the appellee's motion to docket the cause, and moved the court to dismiss the petition for the reasons set forth in the motion, which motion was by the court overruled. On the thirteenth day of the term the appellant renewed his motion, but the same was again overruled, and he excepted.
Such further proceedings were had in the cause as that commissioners were appointed to view the proposed ditch, who subsequently made their report to the court in favor of establishing and constructing the same, as prayed in the petition. To this report the appellant filed a remonstrance.
The court, on motion of the appellee, struck out the first paragraph of such remonstrance, to which the appellant excepted. Issues were formed on the remaining paragraphs of the remonstrance, which were tried by the court, resulting in a finding and order establishing the ditch, as prayed for in the petition. From this order the appellant appeals to this court, and seeks to reverse it on account of numerous alleged errors in the rulings of the trial court during the progress of the cause.
It may be remarked at the outset that very many of the objections made by the appellant to the proceedings in the trial court are purely technical in character, and could by no possibility, even if erroneous, affect the merits of the controversy between the parties.
Section 8, of the act under which this proceeding was had, requires us to construe the act liberally, and prohibits us from permitting any person to take advantage of any error, defect, or informality in the proceeding unless he is injuriously affected thereby. R. S. 1894, section 5629.
We need not, therefore, encumber this opinion by setting out or deciding the technical objections urged by the appellant.
We think the petition in this case, as well as the notice based thereon, was sufficient.
The time for holding the Clinton Circuit Court is fixed by statute, and the appellant was bound to take notice of the times at which such court would convene. We judicially know that the first day of September term, 1891, of that court, was the 7th day of the month. The appellant, therefore, had notice for the length of time required by the statute. A failure to indorse on the petition a date at which it would be docketed was a mere irregularity, which could in no event, injuriously affect the rights of the appellant. Smith v. Smith, 97 Ind. 273; Carr v. State, for Use, 103 Ind. 548, 3 N.E. 375.
The general rule is that defects and irregularities which do not mislead or prejudice the party complaining will be disregarded. Elliott's App. Proced., ...
To continue reading
Request your trial