Smith v. Biesaida

• Decision Date: 25 February 1910
• Docket Number: No. 21,456.,21,456.
• Citation: 174 Ind. 134,90 N.E. 1009
• Parties: SMITH v. BIESAIDA et al.
• Court: Indiana Supreme Court

174 Ind. 134

90 N.E. 1009

SMITH

v.BIESAIDA et al.

No. 21,456.

Supreme Court of Indiana.

Feb. 25, 1910.

Appeal from Superior Court, Allen County; Owen N. Heaton, Judge.

Proceedings by Antoni Biesaida and others for the construction of a drain, wherein William Smith filed a remonstrance. From the judgment, remonstrant appeals. Affirmed.

James M. Robinson, Martin H. Luecke, and Walpole G. Colerick, for appellant. Ballou & Hoffman, for appellees.

MONTGOMERY, J.

Appellees instituted this proceeding in the court below by petition for the construction of a public drain under the act of March 11, 1907, concerning drainage (Acts 1907 p. 508). The matter was duly referred to the drainage commissioners, who made and filed their report therein on July 15, 1908. In this report it was found that the proposed drain was practicable, that its construction would improve the public health, benefit certain highways, and be of public utility, and that it would be sufficient to drain properly the lands affected thereby, and that appellant's land would be benefited and should be assessed therefor in the sum of $44. On the same day appellant filed a remonstrance against this report upon each and all the statutory grounds of remonstrance. Two days later appellant filed what is styled a supplemental remonstrance, and on September 29, 1908, with leave of court, he filed an amended remonstrance, which upon motion of appellees was subsequently stricken out. A trial by the court resulted in a finding in favor of appellant as to the second, third, fourth, fifth, sixth, and seventh statutory grounds, and in favor of appellees as to the first and eighth causes of remonstrance; no finding being announced as to the ninth and tenth ground of appellant's remonstrance. Upon this finding judgment was rendered, whereby the report of the drainage commissioners was modified by eliminating the benefits assessed against appellant's lands, and awarding him $200 damages, and the assessment of benefits against other parcels of lands was reapportioned accordingly. It was further adjudged that appellees pay all costs occasioned by the second, third, fourth, fifth, sixth, and seventh grounds of remonstrance, the cost of giving notice of the pendency, and of the docketing of the petition; that appellant pay costs occasioned by the first and eighth causes on his remonstrance, and that all other costs be paid as part of the expenses of the construction of the drain.

We are confronted, first, with a motion by appellees to dismiss this appeal for the reason that the judgment fixing and confirming the assessments of benefits and damages, and declaring the drainage established, was rendered January 2, 1909, and no bond for appeal was filed until March 11, 1909. It appears from the record that on January 2d the judgment was rendered, on January 9th appellant's motion for a new trial was filed, and on March 1st a new trial was denied, an appeal prayed, and granted upon the filing of a stipulated bond within 10 days. The required bond was filed and approved on March 11th, and the record on appeal filed April 30, 1909. The statute provides that: “The order of the court approving and confirming the assessments, and declaring the proposed work of drainage established shall be final and conclusive, unless an appeal therefrom to the Supreme Court be taken and an appeal bond filed within thirty days, to the approval of the court or the clerk in vacation.” Section 6143, Burns' Ann. St. 1908. It is manifest that the appeal bond was not filed within 30 days of January 2, 1909. Appellees' insistence is that no motion for a new trial is authorized under this statute, and that the judgment cannot be set aside by the trial court on motion, but is final and conclusive unless an appeal therefrom is taken to this court and the appeal bond filed within 30 days.

The proceedings for the establishment of public drains are in a sense special, but in the case of Neff et al. v. Reed, 98 Ind. 341, 345, it was held that, as to questions of fact tried upon issues raised by remonstrances to the report of the commissioners of drainage, a motion for a new trial is allowable, as in ordinary cases. The essential features of the drainage law then under consideration have been re-enacted in the present drainage statutes. It is a well-settled rule that, when the Legislature re-enacts a statute of the state, it adopts also the construction given to such statute by the courts of the state, before such re-enactment. Hilliker v. Citizens, etc., R. Co., 152 Ind. 86, 52 N. E. 607;Board, etc., v. Conner, 155 Ind. 484, 58 N. E. 828;Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 64 N. E. 605, 59 L. R. A. 792;Seiler v. State ex rel., 160 Ind. 605, 65 N. E. 922, 66 N. E. 946, 67 N. E. 448;State ex rel. v. Board, 166 Ind. 162, 76 N. E. 986;Kunkle v. Abell, 167 Ind. 434, 79 N. E. 753;Cain v. Allen, 168 Ind. 8, 79 N. E. 201, 896. The right to file a motion for a new trial in ditch proceedings has been recognized or declared in other cases. Meranda v. Spurlin et al., 100 Ind. 380;Bass et al. v. Elliott, 105 Ind. 517, 5 N. E. 663;Racer v. Baker, 113 Ind. 177, 14 N. E. 241;Baltimore, etc., R. Co. v. Ketring, 122 Ind. 5, 23 N. E. 527;Goodrich v. Stangland, 155 Ind. 279, 58 N. E. 148;Hart v. Scott, 168 Ind. 530, 81 N. E. 481;Clarkson v. Wood, 168 Ind. 582, 81 N. E. 572. It has been repeatedly held in construing this section that time does not begin to run until the date of the overruling of a motion for a new trial. Joyce et al. v. Dickey, 104 Ind. 183, 3 N. E. 252;New York, etc., R. Co. v. Doane, 105 Ind. 92, 4 N. E. 419;Wheeler v. Barr et al., 6 Ind. App. 530, 33 N. E. 975;Moon v. Cline, 11 Ind. App. 460, 39 N. E. 432. Our conclusion, therefore, is that a motion for a new trial is allowable under this statute, and that upon overruling the same the court may fix a time, not exceeding 30 days from that date, within which an appeal bond may be filed. It follows that appellant's appeal bond was filed within the time authorized by law and prescribed by the court, and appellees' motion to dismiss this appeal is overruled.

Appellant has assigned errors upon the (1) striking out of his amended remonstrance; the overruling of his motions; (2) for a new trial; (3) to dismiss the proceeding; (4) for a venire de novo; (5) in arrest of judgment; (6) to modify the judgment; and (7) in the rendition of the judgment establishing the drain. Appellant's so-called amended remonstrance was not filed until long after the expiration of the time fixed by st...