Shoemaker v. Williamson
| Decision Date | 28 March 1901 |
| Docket Number | 19,385 |
| Citation | 59 N.E. 1051,156 Ind. 384 |
| Parties | Shoemaker v. Williamson |
| Court | Indiana Supreme Court |
From the Wells Circuit Court.
Affirmed.
A. N Martin and W. H. Eichhorn, for appellant.
J. S Dailey, A. Simmons and F. C. Dailey, for appellee.
Appellee filed his petition before the board of commissioners for the construction of a ditch under the drainage act of 1881, § 5655 et seq. Burns 1894, § 4285 R. S. 1881 and Horner 1897. Viewers were appointed who reported in favor of the ditch, and assessed $ 19.76 as benefits against appellant's land. Appellant filed a remonstrance upon the ground that the ditch was not of public utility and that her assessment was too high. Reviewers were appointed who reported that the action of the first viewers was "just and correct." Appellant filed a second remonstrance, assigning substantially the same reasons as in the first, which was overruled, and a final order for the construction of the ditch entered by the commissioners. Appellant appealed to the circuit court, where, upon trial, and a special finding of facts, the court rendered judgment for the construction of the ditch and confirming the assessment made by the viewers against the lands of appellant. From this judgment appellant appeals to this court.
Appellant assails in this court for the first time the sufficiency of appellee's petition for the drain. This is permissible under § 346 of the code. There are, however, many objections to a complaint, or petition, that a defendant might avail himself of on appeal if presented at the proper time and in the proper mode, which become unavailable after the complaint has been strengthened by the presumptions indulged in favor of the decisions of the trial court and the general curative virtues of a verdict, or finding. It is a wholesome rule, well settled in this State, that a defendant may not respond to a complaint without objection, and proceed with the litigation to final judgment, and, after the court's time has been employed and costs accumulated, then successfully overthrow the complaint and that which has been constructed upon it, unless there is a total absence therefrom of the averment of some fact essential to the existence of the cause of action, that is, a total absence of averment of some fact absolutely necessary to the support of the proceeding. Smith v. Smith, 106 Ind. 43, 45, 5 N.E. 411; Laverty v. State, 109 Ind. 217, 219, 9 N.E. 774; Taylor v. Johnson, 113 Ind. 164, 167, 15 N.E. 238; Wells v. Rhodes, 114 Ind. 467, 469, 16 N.E. 830; Pennsylvania Co. v. Congdon, 134 Ind. 226, 229, 39 Am. St. 251, 33 N.E. 795.
So much of the statute (§ 5656) as relates to the character of the petition reads thus: "Before the board of county commissioners shall establish any ditch, * * * there shall be filed with the auditor of such county a petition, signed by one or more of the landowners whose lands will be liable to be affected by or assessed for the expenses of the construction of the same, setting forth the necessity thereof, with a general description of the proposed starting point, route and terminus." Omitting the caption the petition is as follows: ...
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