Stingley v. Nichols, Shepard & Co.
| Decision Date | 06 February 1892 |
| Docket Number | 15,388 |
| Citation | 30 N.E. 34,131 Ind. 214 |
| Court | Indiana Supreme Court |
| Parties | Stingley v. Nichols, Shepard & Co. et al |
Petition for a Rehearing Overruled April 9, 1892.
From the Fulton Circuit Court.
The judgment is reversed, with instruction to grant a new trial and for further proceedings in accordance with this opinion.
G. W Holman, R. C. Stephenson, J. Rowley and M. A. Baker, for appellant.
P. M Buchanan, J. S. Slick, M. L. Essick and O. F. Montgomery, for appellees.
A public ditch, known as the Peters and Reed ditch, was established in Fulton county, Indiana, in the year 1880, by the board of commissioners of that county, under and pursuant to the drainage law of 1875. In the year 1888, James K. Stinson, then surveyor of Fulton county, undertook to clean out and repair the ditch, as provided for by section 10 of the acts of 1885, p. 141 (Elliott's Supp., section 1193). For work done on the main ditch he issued certificates in the amount of $ 3,594.89, and for work on the south arm for $ 267.10, upon which sums the county auditor drew his warrant on the county treasurer, and the same were paid out of the county revenue. Afterward the term of office of Stinson, as county surveyor, expired, and he was succeeded by the appellant, Peter J. Stingley.
In September, 1889, one Isaiah Walker, claiming to act as deputy surveyor, assessed the land-owners along the main ditch, and also along the south arm for the full amount expended for repairs on the ditch. This assessment was made to reimburse the treasury for the payments paid out of the county revenues.
From this assessment the appellees appealed to the circuit court by filing their separate bonds with the clerk of said court. Subsequently, by order of the court, the cases were consolidated and tried together.
After the appeals were perfected, but before the trial, Messrs. Holman & Stephenson and Rowley & Baker, attorneys at law, entered a special appearance in each case, and filed written motions to dismiss the appeals, which motions were overruled, and the rulings are assigned as errors here.
The grounds upon which the motion proceeded, briefly stated, are, that the assessment having been made by Isaiah Walker, and not by the appellant, Stingley, the appeal bonds should have been made payable to Walker, and he should have been made defendant in the appeal; and for the further reason that the lands assessed, from which the appeals are taken, are not described in the appeal bonds, nor do they state whether they were assessed for repairs to the main ditch or to the south arm.
We are satisfied that the court did not err in overruling these motions.
The purpose for which appeal bonds are required to be filed is to furnish indemnity for loss that may be incurred because of the appeal. Defects in their form are cured by statute. Section 1221, R. S. 1881; Railsback v. Greve, 58 Ind. 72. They are not pleadings and perform none of the functions of a pleading. The bonds seem to be drawn in strict conformity with the law giving the right of appeal. The record of the assessments, a copy of which the surveyor is required to file with the clerk of the court to which the appeal is taken, necessarily shows a description of the lands assessed, with the purpose of the assessment.
The county surveyor was properly named as the obligee in the appeal bonds, for so says the statute which provides for the appeal.
If Walker, who made the assessment, had authority to make it, it was because he was a deputy surveyor. If he was a deputy surveyor, he was but the shadow of his principal--a mere substitute for his principal. Black Law Dict., title, "Deputy;" Sections 5952, 5569, 5570, R. S. 1831.
Upon the overruling of the motion to dismiss the appeals, a motion, supported by affidavit, was filed, questioning the authority of Messrs. Holman & Stephenson and Rowley & Baker to appear as the attorney of the county surveyor. In answer to this affidavit and motion, a joint affidavit was made by the attorneys mentioned, showing that they had been employed by the board of commissioners of Fulton county to appear and protect the interests of the county in said appeals, and to take such other steps as they should think proper and necessary to collect the amount of the assessments made to reimburse the county treasury for its disbursements made in the repair of the ditch.
The court found that such employment did not authorize them to appear in the action.
In our opinion this ruling was erroneous. The county was the party, and the only party, financially interested in the collection of these assessments. The money had been paid out of the county treasury, and the collection of the assessments appealed from was the only remedy provided by law for replacing it. While under the peculiar wording of the section of statute under consideration the county was not a necessary party to the appeal (Davis v. Lake Shore, etc., R. W. Co., 114 Ind. 364, 16 N.E. 639), we think it would have been a proper one, and upon proper application should have been permitted to intervene for the protection of its rights in litigation. Goetzman v. Whitaker, 81 Iowa 527, 46 N.W. 1058; Smith v. Ford, 48 Wis. 115, 2 N.W. 134 (151); Taylor v. Adair, 22 Iowa 279; Gradwohl v. Harris, 29 Cal. 150; Yuba Co. v. Adams, 7 Cal. 35; State, ex rel., v. Graham, 23 La. Ann. 402.
No attempt was made to have the county made a party, but the appellant did ask what would have accomplished the same purpose, that is, to defend in the name of the county surveyor.
The statute requires that the assessments shall be made by the county surveyor, and that the appeal bond shall be made payable to him, and that a summons shall be issued and served upon such surveyor, but it nowhere expressly authorizes him to employ attorneys, and makes no provision for their payment if so employed.
In this case it does not appear that the surveyor had employed attorneys or contemplated such action. Under these circumstances we think the attorneys employed by the county should have been permitted to defend. Roszell v. Roszell, 105 Ind. 77, 4 N.E. 423.
While we are satisfied that the court erred in its ruling, it appears that the appellants were...
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