Stroup v. Ferguson

• Decision Date: 07 June 1928
• Docket Number: 24,431
• Citation: 161 N.E. 628,200 Ind. 139
• Parties: Stroup et al. v. Ferguson, Trustee, et al
• Court: Indiana Supreme Court

161 N.E. 628

200 Ind. 139

Stroup et al. v. Ferguson, Trustee, et al

No. 24,431

Supreme Court of Indiana

June 7, 1928

1. DRAINS---Establishment---Petition---Objections---When Made.---Under the express provisions of 6169 Burns 1926, all objections to a drainage petition must be made within ten days, exclusive of Sunday and the day of docketing, from the day the action is docketed, and this rule includes objections because the petition does not describe two-thirds or more of the lands which will be affected or because it does not describe two-thirds of the route of the proposed drain, as required by 6168 Burns 1926. p. 142.

2. DRAINS---Establishment---Petition---Sufficient to give Jurisdiction.---A drainage petition may be sufficient to vest the court with jurisdiction of the subject-matter of the action, although it does not describe two-thirds of the lands which will be affected by the proposed drain, or does not describe two-thirds of the route of the proposed drain, as required by 6168 Burns 1926. p 142.

3. DRAINS---Establishment---Report of Drainage Commissioners---Objections---When Made.---An objection to the drainage commissioners' report because it showed that nearly one hundred per cent. more land would be affected by the proposed drain than was described in the petition (see 6168 Burns 1926) and, therefore, was not according to law must be made by remonstrance, filed within the time prescribed by 6174 Burns 1926, and cannot be made by plea in abatement. p. 142.

From Tipton Circuit Court; Cleon Wade Mount, Special Judge.

Petition for public drain by J. H. Ferguson and others, to which Oliver M. Stroup and others filed a plea in abatement and also a motion to strike out the drainage commissioners' report. These pleas were overruled and an order entered establishing the drain. From this order, the objectors appeal.

Affirmed.

Kemp Kemp & Russell and Thomas M. Ryan, for appellants.

J. F. Pyke, for appellees.

OPINION

Travis, J.

This is a proceeding to repair a public drain, theretofore ordered established and constructed by the same court that made the judgment from which this appeal is taken. § 6196 Burns 1926, Acts 1919 p. 426.

Addressed to the petition for the drainage, appellant Stroup filed his plea in abatement, praying that the petition for drainage be dismissed because the court did not have jurisdiction of the cause, for the reason that the report of the commissioners described 10,318.03 acres of land that would be affected by the drainage, but that the petition stated that the improvement could not be accomplished without affecting other lands than the lands owned by petitioners, and that at least two-thirds of all lands that will be affected by the proposed improvement, together with the names of the owners of such lands, are stated in the petition, all of which described lands named in the petition amount to 5,616.23 acres. It is pleaded that the foregoing facts show that the petition does not comply with § 2 1/2 of ch. 97, Acts 1919 (§ 6168 Burns 1926) which it was necessary for the petition to do, to give jurisdiction of the proceeding to the court. Appellees' demurrer to the plea in abatement was sustained by the court.

Appellant Stroup and his coappellants filed their motion to strike and expunge from the record the report of the drainage commissioners, for the reason that the parties did not have a hearing before the court to determine whether or not repair of the drain, as asked by the petition, should be ordered by the court, and that the court made no order or decree that the work should be accomplished as prayed for in the petition. But that twenty days after the petition had been docketed the court made its finding that the petition was sufficient, and then referred the matter to the drainage commissioners. To this motion appellees filed their motion to strike from the record the motion of appellants, for the reason that appellants' motion was not filed within ten days from the date of the filing of the report...