Stroup v. Ferguson , 24431.

• Decision Date: 07 June 1928
• Docket Number: No. 24431.,24431.
• Parties: STROUP et al. v. FERGUSON et al.
• Court: Indiana Supreme Court

200 Ind. 139

161 N.E. 628

STROUP et al.

v.FERGUSON et al.

No. 24431.

Supreme Court of Indiana.

June 7, 1928.

Appeal from Tipton Circuit Court, W. Mount, Special Judge.

Petition by J. H. Ferguson, trustee, and others, opposed by Oliver M. Stroup and others, for the repair of a public drain. From the judgment, Stroup and others appeal. Affirmed.

Kemp, Kemp & Russell, of Tipton, and Thomas M. Ryan, of Frankfort, for appellants.

J. F. Pyke, of Tipton, for appellees.

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. Section 6174, Burns' Supp. 1921 (Acts 1919, p. 426, c. 68).

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 section 2 1/2 of chapter 97, Acts 1919 (section 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 20 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 of the drainage commissioners, nor within ten days after notice was served on the parties who filed the motion; and that in this proceeding no adjudication other than to find that the petition was sufficient was necessary; and that no objection, remonstrance, or demurrer had been made by any party to the petition for the proposed improvement, within the time required by law. The court sustained appellees' motion to strike appellants' motion from the record. The appellants refused to plead further, and the court adjudged that the report of the commissioners and the assessments as modified be approved, and that the drain be established and ordered constructed.

All appellants, save Stroup, were named in the petition as landowners who would be affected by the...