Strebin v. Lavengood
| Decision Date | 21 June 1904 |
| Docket Number | 20,216 |
| Citation | 71 N.E. 494,163 Ind. 478 |
| Parties | Strebin et al. v. Lavengood et al |
| Court | Indiana Supreme Court |
Rehearing Denied November 15, 1904.
From Miami Circuit Court; J. N. Tillett, Judge.
Jacob S. Lavengood and others filed their petition to contest an election for the establishment of a free gravel road. From a judgment in their favor entered on the verdict of a jury John A. Strebin and others appeal.
Affirmed.
J. T Cox, Lawrence & Rhoades, Roscoe Kimple and W. B. McClintic, for appellants.
N. N. Antrim, F. D. Butler, W. C. Bailey and C. A. Cole, for appellees.
It appears from the record that appellees were petitioners before the board of commissioners of Miami county for the construction of free gravel roads in Harrison township, in said county, under the act of 1901 (Acts 1901, p. 449), and that such proceedings were had in said cause that the question of building said free gravel roads was submitted to the voters of said township on February 7, 1903, at a special election called for that purpose by said board of commissioners. On February 12, 1903, a statement of the polls and votes cast in the two election precincts of said township at said special election, showing that 135 votes were cast for building free gravel roads, and 143 votes against building free gravel roads, and that said proposition was defeated, was filed with and presented to said board of commissioners, that body being then in session. At the same time appellees appeared before said board of commissioners and filed a petition and protest in writing against the correctness of the return of the vote made by said election officers, and to contest said election, on the ground that a majority of the votes cast at said election was in favor of the building of said free gravel roads, and not against the building thereof, as shown by said return. The board of commissioners rejected the same, and denied the right of appellees to protest against and contest the correctness of said election returns, but approved said return of the election officers, showing that the proposition for building free gravel roads had been defeated. From this decision and judgment of the board appellees appealed to the court below, and filed their appeal bond, which was approved by the auditor. Afterwards, appellants, taxpayers and voters of said Harrison township, on their application, were made parties defendant to said proceeding in the court below. They filed motions to dismiss the appeal and motions to strike from the files the amended petition of appellees filed in the court below, which motions were made and overruled in the order stated. Appellants' demurrer for want of facts to appellees' amended petition was overruled by the court. Appellants thereupon filed a general denial to said amended petition. A trial by jury resulted in a verdict in favor of appellees, and that a majority of those voting at said special election voted in favor of building said free gravel roads. Over appellants' motion for a new trial and motion in arrest, judgment was rendered in favor of appellees, and the board of commissioners was ordered to make and enter of record a finding and judgment that a majority of said votes was in favor of building said free gravel roads, and that said board proceed at once to the construction of the same as provided by law.
It is first insisted by appellants that the court below erred in overruling their motions to dismiss the appeal from the board of commissioners, and to strike from the files the amended petition and statement of contest for the following reasons: (1) The petition and statement of contest filed by appellees was not verified, as required by § 6314 Burns 1901, and, for want of such verification, the board of commissioners and the court below on appeal had no jurisdiction of said proceeding, and there was no right to amend the petition in the court below. (2) No final judgment or decision was rendered in said proceeding by the board of commissioners when the same was appealed to the court below. (3) No affidavit was filed with the auditor by appellees, showing that they had a right to appeal said proceeding, as required by § 7859 Burns 1901, at or before the time the same was appealed by the appellees to the court below. (4) The transcript filed by the auditor in the court below did not contain all the proceedings before the board of commissioners in said gravel road proceeding.
It is settled that any person interested as a taxpayer or otherwise may appear before the board of commissioners and contest the result of a railroad or gravel road election, or an election for the incorporation of a town, and, if aggrieved by the decision, take an appeal to the circuit court. Board, etc., v. Conner (1900), 155 Ind. 484, 58 N.E. 828; Harris v. Millege (1898), 151 Ind. 70, 51 N.E. 102; Goddard v. Stockman (1881), 74 Ind. 400.
In Board, etc., v. Conner, supra, this court, speaking of gravel road elections and the right to contest the same, quoted with approval the following from Goddard v. Stockman, supra:
It is evident under the cases cited that the general law providing for contesting elections has no application to railroad and gravel road elections or elections for the incorporation of towns. The case of Farlow v. Hougham (1882), 87 Ind. 540, cited by appellants, is, therefore, not in point here. The special election held on February 7, 1903, the return of said election made by the election officers to the board of commissioners, and the petition calling in question the result of said election as reported by said election officers, filed by appellees on February 12, 1903, before said board, were all in said proceeding for the construction of free gravel roads in Harrison township, and a part thereof. Appellees' said petition was a pleading in said cause.
It appears from the record that before the court below overruled appellants' motion to dismiss the appeal and their motion to strike from the files appellees' amended petition, the same was verified and refiled. It has been uniformly held that, when the statute requires that a pleading in a cause be verified, such requirement is not jurisdictional. 22 Ency. Pl. and Pr., 1017, 1051; Sutherland v. Hankins (1877), 56 Ind. 343, 356, 357; Swihart v. Shaffer (1882), 87 Ind. 208, 210; Lange v. Dammier (1889), 119 Ind. 567, 570, 571, 21 N.E. 749, and cases cited. These cases hold that, when the verification of a pleading is required, the want of verification is waived, if such objection is not presented in a proper manner and at a proper time, and that if when the objection is made the pleading is then verified the objection will be overruled. In this case, when appellants moved to dismiss the appeal, and before the motion to strike the amended petition to contest from the files, appellees, by leave of court, verified said amended petition and refiled the same. It is not necessary, therefore, to decide whether or not appellees were required to verify said petition, for the reason that, if required, the verification thereof when objection was made was a sufficient compliance with such requirement. Lange v. Dammier, supra, and cases cited. That said petition or statement to contest said election filed by appellees before the board was amendable in the court below is well settled. Harris v. Millege, supra, and cases cited; Wilcox v. City of Tipton (1896), 143 Ind. 241, 245-247, 42 N.E. 614; Coolman v. Fleming (1882), 82 Ind. 117; Hedrick v. Hedrick (1876), 55 Ind. 78.
Section 7859 Burns 1901, cited by appellants, requires a person not a party to a proceeding before the board of commissioners to file an affidavit showing his interest, before he can appeal; but as appellees were parties to the proceeding before the board of commissioners, they were not required to comply with said provision. The act under which this proceeding was brought and the election held provides that § 6899 Burns 1901, Acts 1901, p. 449.
It is clear, from the foregoing provision...
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