Smith v. Gustin

• Citation: 80 N.E. 959,169 Ind. 42
• Decision Date: 10 April 1907
• Docket Number: 20,890
• Parties: Smith et al. v. Gustin et al
• Court: Indiana Supreme Court

80 N.E. 959

169 Ind. 42

Smith et al. v. Gustin et al

No. 20,890

Supreme Court of Indiana

April 10, 1907

Rehearing Denied June 28, 1907, Reported at: 169 Ind. 42 at 50.

From Allen Circuit Court; E. O'Rourke, Judge.

Drainage petition by David C. Smith and others, against which Joseph H. Gustin and others remonstrate. From a judgment of the circuit court dismissing the cause, petitioners appeal.

Reversed.

W & E. Leonard, for appellants.

Ballou & Hoffman and Ninde Brothers, for appellees.

OPINION

Montgomery, C. J.

This proceeding was commenced by appellants and others before the board of commissioners of Allen county for the establishment of a public ditch. Appellees remonstrated against the proposed improvement, and, from a final judgment of the board establishing the ditch as described in the report of the reviewers, appealed to the circuit court. In the circuit court appellants filed a motion to dismiss the appeal of the remonstrators, and of each of them severally, for the reasons that there was no prayer for an appeal from the board by the remonstrators, or any of them, and no appeal bond had been filed by them or any of them with the auditor, nor had any such appeal bond been approved by the auditor. These motions were overruled and exceptions properly reserved. Appellees filed a motion to dismiss the proceeding, for the reason that the proposed ditch was ordered established June 14, 1905 after the law under which the proceeding was instituted had been repealed by the act of March 6, 1905 (Acts 1905, p. 456, § 5622 et seq. Burns 1905), without a provision saving pending proceedings, except those in which an order establishing the ditch had been entered prior to April 15, 1905, and the court was accordingly without jurisdiction. This motion was sustained, and the cause dismissed at the cost of appellants.

The principal questions in controversy are presented by assignments of error charging that the court erred in overruling appellants' motions to dismiss the appeals from the board of commissioners, and in sustaining appellees' motion to dismiss the proceeding, and in dismissing the same at appellants' cost.

Appellees make objection to the sufficiency of the assignment of errors, because (1) the full Christian names of certain appellees are not given. This practice frequently has been condemned, and has never been tolerated except in ditch and analogous proceedings. In this proceeding appellees appeared before the board of commissioners and subscribed their pleadings, and in the circuit court caused their names to be entered upon the records by the same style by which they are designated in the assignment of errors. In proceedings of this character, wherein much liberality in pleading is allowed, an appeal will not be dismissed for noncompliance with rule six, at the suggestion of counsel for appellees who have not caused their full names to be subscribed to their pleadings and entered upon the records of the trial court. Goodrich v. Stangland (1900), 155 Ind. 279, 281, 58 N.E. 148.

It is next insisted that fifteen persons signed the petition for the proposed ditch, whose names were all contained in the appeal bond, and that only six are named as appellants in the assignments of error, and that the other petitioners should have been joined as coappellants. It appears from the record that, while the proceeding was pending before the board of commissioners, nine of the petitioners were permitted to withdraw their names and to dismiss the proceeding as to themselves, and the remaining six conducted subsequent proceedings and are joined as appellants in this court. The appeal is not perfected by filing an appeal bond in pursuance to an order of court granting such appeal; but the transcript must be filed in the appellate court, together with an assignment of errors, within the time prescribed by law governing such appeals. This is a term-time appeal, and appellants were not required to make all parties against whom the judgment was rendered coappellants with them in this court. §§ 675, 676 Burns 1908, Acts 1895, p. 179, §§ 1, 2; Keiser v. Mills (1904), 162 Ind. 366, 69 N.E. 142.

It is further contended by appellees that every person whose lands were assessed for the construction of the ditch was a necessary party to this appeal, and that the names of more than one hundred thirty persons interested in the proposed drainage, as shown by the final report of the reviewers, are not included among the appellees in this court. The omitted persons were not remonstrators who appealed to the circuit court, and were not parties to the final judgment from which this appeal was prosecuted. Only parties to the judgment appealed from are necessary parties to an appeal. Keiser v. Mills, supra; Moore v. Franklin (1896), 145 Ind. 344, 44 N.E. 459; Lowe v. Turpie (1897), 147 Ind. 652, 37 L. R. A. 233, 44 N.E. 25; McClure v. Shelburn Coal Co. (1897), 147 Ind. 119, 46 N.E. 349; Capital Nat. Bank v. Reid (1900), 154 Ind. 54, 55 N.E. 1023. When the transcript was filed in the circuit court, and the cause was called, there were no data from which to determine the particular remonstrators who were prosecuting the appeal. In connection with a motion to dismiss the entire appeal, we are advised that, in pursuance of a verbal direction of the court, counsel for appellees caused the names of all parties for whom they appeared, and who, as claimed, had appealed from the decision of the board, to be entered upon the record; and immediately following these names the court caused the following order to be entered: "On motion of plaintiffs, appeal is dismissed as to all remonstrants not above named." All the parties so listed and recorded as appealing to the circuit court are joined as appellees in the assignment of errors by the names and styles furnished by their counsel. These parties procured the judgment dismissing the action, and were the only parties to any issue or ruling involved which we are called upon to review; and we find no defect of parties in the assignment of errors.

It is manifest from the record that this proceeding was dismissed upon the assumption that the statute of 1905 (Acts 1905, p 456, §§ 5622-5635 Burns 1905), repealed all prior drainage laws, and struck down and annulled all pending proceedings in which the ditch had not been ordered established prior to the taking effect of the repealing act. Section fourteen of the act of 1905 (§ 5635 Burns 1905) provided that "all laws and parts of laws heretofore enacted in relation to drainage are hereby repealed, but such repeal shall not affect any pending proceedings in which a ditch has been ordered established or in which there is no attempt to and which will not lower or affect any lake or body of water that has to exceed ten acres of...