Smith v. Gustin

• Decision Date: 28 June 1907
• Docket Number: 20,890
• Citation: 81 N.E. 722,169 Ind. 50
• Parties: Smith et al. v. Gustin et al
• Court: Indiana Supreme Court

81 N.E. 722

169 Ind. 50

Smith et al. v. Gustin et al

No. 20,890

Supreme Court of Indiana

June 28, 1907

Original Opinion of April 10, 1907, Reported at: 169 Ind. 42.

OPINION

Montgomery, J.

Appellees earnestly petition for a rehearing and submit matter which properly calls for a further statement with reference to the action of the court in directing a dismissal of their appeal from the board of commissioners to the circuit court. It is insisted that the circuit court may determine as a question of fact whether an appeal bond was filed with the auditor and to that end may hear oral evidence; citing McCrory v. Anderson (1885), 103 Ind. 12, 2 N.E. 211, and Miller v. O'Reilly (1882), 84 Ind. 168. There is no doubt of this proposition, and, if the record in this case showed that in such manner the necessary fact was established, as was shown in the cases cited, no difficulty would have been encountered in sustaining the jurisdiction of the circuit court. It is urged that all presumptions must be indulged in favor of the action of the lower court in overruling the motion to dismiss; citing, among other cases, Demaree v. Johnson (1898), 150 Ind. 419, 49 N.E. 1062, and Pittsburgh, etc., R. Co. v. Machler (1902), 158 Ind. 159, 63 N.E. 210. The latter case involved only jurisdiction over the person, and this court correctly said: "Having appeared before the court and pleaded to the merits of the proceeding and assessment, without making any objection to the sufficiency of the notice, or the regularity in filing the petition, that act will be held to be a waiver of all questions pertaining to the jurisdiction of the court growing out of such matters." The case of Demaree v. Johnson, supra, related to the voting of aid to a railroad, and it is said by the court that there was no requirement in such a case that the appeal bond filed with the auditor, or a copy thereof, should be made a part of the record in the circuit court. It was also said in the opinion that there was nothing to show "that any motion was made in the trial court to dismiss the appeal, or that any suggestion was there made that no appeal bond had been filed."

Those facts clearly distinguish that case from this. Here the motion to dismiss for want of an appeal bond was made in the court below, and the ruling thereon assigned as error in this court. In this proceeding the statute requires the auditor to make and certify a transcript of the appeal bond as a part of the record upon appeal to the circuit court. This was not done, nor was the filing of appeal bonds made to appear otherwise upon the record in this case, and it was upon the assumption that evidence of the filing of appeal bonds was a necessary part of the record, and that therefore, we were in...