Scudder v. Jones

• Decision Date: 04 November 1892
• Citation: 134 Ind. 547,32 N.E. 221
• Parties: SCUDDER v. JONES.
• Court: Indiana Supreme Court

134 Ind. 547

32 N.E. 221

SCUDDER

v.JONES.¹

Supreme Court of Indiana.

Nov. 4, 1892.

Appeal from circuit court, Shelby county; W. H. Bainbridge, Special Judge.

Action by Benjamin Scudder against Thomas S. Jones to set aside an assessment levied against plaintiff's land for the cost of constructing a public ditch. From a judgment for defendant, plaintiff appeals. Reversed.Adams, Michener & Carter, for appellant. Hord & Adams, for appellee.

Elliott, J.

The appellant sought to have an assessment levied against his land for the cost of constructing a public ditch set aside. The ground upon which he asks relief is that he did not receive notice of the proceedings, and that there was an entire failure to give notice. It appears that on the 14th day of May, 1887, a petition praying for the construction of the ditch was filed by the appellee in the Shelby circuit court; that such proceedings were had as resulted in the usual interlocutory and final orders. After the final order giving effect to the prior reports and orders was entered, the complaint of the appellant was filed. A special finding was made, and a conclusion of law was thereon stated, to which the appellant properly excepted, so that, so far as he is concerned, the question presented for our decision arises upon that exception. The argument of the appellee's counsel makes it proper to consider points made by them before directing attention to the special finding. The contention of counsel is that the pleading of the appellant is a mere motion to dismiss, and not part of the record, because not incorporated in the bill of exceptions. Counsel are right in asserting that a motion to dismiss must be made part of the record by a bill of exceptions or by a special order. Sample v. Carroll, 32 N. E. Rep. 220, (this term;) Railway Co. v. McDaneld, (Ind. App.) 31 N. E. Rep. 836, See, also, authorities cited in Elliott, App. Proc. §§ 190, 191, 814. But the appellee is wrong in assuming that the pleading is a mere motion to dismiss. On the contrary, it professes to be a complaint; its substance makes good its profession, and it was so treated by the parties, and the trial court. If it were granted that the appellant chose the wrong remedy, we could not, in such a case as this record presents to us, reverse the judgment if no other errors were committed. The general rule unquestionably is that an objection that a party has mistaken his remedy must be appropriately made in the trial court. See authorities cited in Elliott, App. Proc. §§ 658-679. We cannot, however, agree that there was a mistake in electing to proceed by complaint instead of by motion, for our judgment is that the remedy pursued is appropriate. Where a final order or judgment is assailed because jurisdiction of the person was not acquired, it is proper to attack the proceedings by a complaint. It is, indeed, proper in many cases where there is an entire and complete absence of notice to make the question on appeal an original one. As we have said, the complaint was not questioned in the trial court, and we may add that there is here no assignment of cross errors, so that we cannot consider any objections to the complaint that do not go to the substance in the strictest and most rigid sense, if, indeed, we can properly consider any objections at all. In view of the theory assumed in the trial court and the presence of the special finding in the record, it is quite doubtful whether we can properly consider any objections, no matter what their character, to the pleadings, and certainly we cannot give effect to those here urged by the appellee. It is, at all events, quite clear that we cannot hold the complaint bad because it does not show that there was not a waiver of notice. We have no doubt upon the proposition that notice may be waived, and is ordinarily waived, by an appearance without due objection. Sunier v. Miller, 105 Ind. 394, 4 N. E. Rep. 867. See, also, authorities cited in Elliott, Roads & S. 243. But we cannot hold that the appellee can here avail himself of the rule stated, for the complaint certainly states facts sufficient to make such a prima facie case as will bar another action, and that is enough to protect it against an original attack in this court. See authorities cited in Elliott, App. Proc. §§ 471-473. Our general conclusion upon the branch of the case which affects the matter of pleading is that the objection that the complaint is not sufficient to present any questions upon the special finding is untenable.

The facts exhibited in the special finding are, in substance, these: Scudder was the owner of the land assessed at the time the petition for the ditch was filed, and the ditch runs through the land. “He was not personally in court,” nor present by counsel during the proceedings. He was not “served personally with notice of the original petition, and no notices of the same were posted in the township where the proposed ditch would cross his land, but he lived only a short distance from the land on which the ditch was to be constructed, and had personal knowledge of its location very soon after it was located.” He had likewise “personal knowledge of the filing of the report and of the amount of the assessment reported against him before the expiration of ten days from the filing of the report.” He had “also knowledge of the work being done upon the ditch, and of money being expended in the construction thereof, and, knowing these facts, took no legal steps to prevent such work while the same was being done;” nor did he take such steps until he was notified to pay his assessments. The proceedings on the appellee's petition, except as to notice to the appellant, were regular. The conclusion of law stated is that “Scudder is not entitled to any relief under his...