Stevens v. Templeton

• Decision Date: 02 April 1908
• Docket Number: 21,055
• Parties: Stevens et al. v. Templeton
• Court: Indiana Supreme Court

84 N.E. 148

170 Ind. 248

Stevens et al. v. Templeton

No. 21,055

Supreme Court of Indiana

April 2, 1908

From Clinton Circuit Court; Joseph Claybaugh, Judge.

Drainage proceeding by Martha M. Templeton, against which Joseph F Stevens and others remonstrate. From a judgment against the remonstrants, they appeal.

Reversed.

Martin A. Morrison and Harry C. Sheridan, for appellants.

James V. Kent and Joseph P. Gray, for appellees.

OPINION

Montgomery, J.

Appellee filed her petition in the Clinton Circuit Court for the establishment of a drain under the act of 1905 (Acts 1905, p. 456, § 5622 et seq. Burns 1905). The matter was duly referred to the drainage commissioners, and, upon the filing of their final report, appellants severally remonstrated against the same. These remonstrances contained the same allegations, and the body of each was as follows: "(1) That said report is not made according to law; (2) that said report is not made according to law in this, to wit, that said report does not contain any estimate of the costs, damages and expenses of the proposed drainage; (3) that the method of drainage, as proposed by such report, is not according to law; (4) that the location of the drain, as proposed by such report, is not according to law; (5) that the location of the drain and the method thereof, as proposed by said report, are not such as will secure the best results; (6) that the costs, damages and expenses of the proposed drainage will be more than the benefits to the owners of the lands likely to be benefited; (7) that said lands of this remonstrator are assessed too much as compared with other persons assessed as benefited by and in said report, to wit, John N. Russell, Harrison Derrick, deceased, Martha M. Templeton and Garrett Snodgrass; (8) that said lands of this remonstrator will not be benefited to the extent of said assessments against them by the proposed work, if accomplished."

Appellee thereupon moved to strike out the first, third, fourth, fifth, sixth and seventh of said grounds of remonstrance for the following reasons: "(1) Neither of said causes of remonstrance tenders any issue either of law or fact; (2) each of said causes of remonstrance is uncertain and indefinite, and tenders no issue as against the report of the commissioners; (3) neither one of said alleged causes of remonstrance tenders any issue; (4) said alleged causes of remonstrance do not, nor does either of them, state facts sufficient to constitute a defense to said petition; (5) neither of said alleged causes of remonstrance states facts sufficient to constitute a defense to said petition." The court upon said motion struck out the first, third, fourth, fifth and seventh grounds of remonstrance, and overruled the motion as to the sixth specification, and to each ruling exceptions were properly saved. Thereafter such proceedings were had as resulted in a finding and judgment in favor of appellee.

Appellee has filed motions to dismiss this appeal as to each of the appellants, upon the ground that the appeal was not taken within the time given by statute. It is provided by the drainage law (§ 5625 Burns 1905, Acts 1905, p. 456 § 4), 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." The final judgment establishing the drain and...