Sunier v. Miller

• Decision Date: 11 February 1886
• Docket Number: 12,001
• Citation: 4 N.E. 867,105 Ind. 393
• Parties: Sunier v. Miller, Auditor
• Court: Indiana Supreme Court

4 N.E. 867

105 Ind. 393

Sunier v. Miller, Auditor

No. 12,001

Supreme Court of Indiana

February 11, 1886

Petition for a Rehearing Overruled April 14, 1886.

From the Wells Circuit Court.

Judgment affirmed.

A. N Martin, H. L. Martin, J. S. Dailey, L. Mock and -- Simmons for appellant.

E. R. Wilson, J. J. Todd and A. Duglay, for appellee.

OPINION

Elliott, J.

This suit was brought by the appellant to enjoin the auditor of Wells county from enforcing an assessment levied for the purpose of constructing a ditch, or, more accurately speaking, from enforcing an order establishing a ditch, under the act of April 21st, 1881, made by the board of commissioners.

The appellant argues that the proceedings are void because no notice was given as the law requires. We agree with counsel that the general rule is, that notice is required in all such proceedings as the present. Hobbs v. Board, etc., 103 Ind. 575, 3 N.E. 263; Wright v. Wilson, 95 Ind. 408. We do not doubt that notice is a fundamental matter, and if not given the proceedings are void, unless the complainant has, in some effective method, waived it. Strosser v. City of Fort Wayne, 100 Ind. 443. But while the general rule is that stated, it is as well settled as the rule itself that where the party voluntarily appears the fact that there was no notice to him does not render the proceedings void. Notice may be waived, and it always is waived where there is an appearance. There is, as is well known, a broad distinction between jurisdiction of the person and jurisdiction of the subject-matter; consent may confer the former, but not the latter. This rule applies to proceedings of this character. Boston, etc., Railroad v. Folsom, 46 N.H. 64; Copeland v. Packard, 16 Pick. 217; Muire v. Falconer, 51 Va. 12, 10 Gratt. 12; East Saginaw R. R. Co. v. Benham, 28 Mich. 459; People v. Burton, 65 N.Y. 452.

The appellant joined in a remonstrance against the establishment of the ditch and the levying of the assessments, and this was an appearance. We can perceive no reason for holding that one who joins in a remonstrance can assail the proceedings upon the ground that no notice was given. It has often been held, that if no objection to notice is made its validity can not be assailed even on appeal, and, surely, if objection can not be made on appeal, none can be successfully urged in a collateral attack. Daggy v. Coats, 19 Ind. 259; Milhollin v. Thomas, 7 Ind. 165; Little v. Thompson, 24 Ind. 146.

The land-owner can not, by a suit for an injunction, have a review of the assessment of benefits and damages. Questions respecting the assessment of benefits and damages must be litigated in the commissioners' court or on appeal. City of Fort Wayne v. Cody, 43 Ind. 197. If the proceedings are void, then an injunction will issue, but, where the proceedings are not void, a suit for injunction can not be maintained, no matter how erroneous the proceedings may be. Cauldwell v. Curry, 93 Ind. 363; Smith v. Clifford, 99 Ind. 113. Where there is jurisdiction of the subject-matter and notice, or an appearance, there is jurisdiction, and no irregularity can be made available in a suit for an injunction.

The petitioners succeeded in obtaining from the board of commissioners an order for the location and construction of a ditch, and also secured an order approving the assessment made by the reviewers. This appellant, and other landowners, appealed from the judgment of the board of commissioners and the circuit court, on appeal, made and entered of record the following finding and judgment: "That the improvement prayed for in the petition is conducive to public health and welfare; that the route thereof is practicable, and that the assessments are made on lands owned by the defendants. Said assessments are not in proportion to the benefits derived therefrom; that they, the assessments, and each of them, are excessive and erroneous. Whereupon it is ordered and adjudged that the said assessments and each of them, together with the proceedings had and done before the board of commissioners of Wells county, be, and the same are hereby set aside, vacated and rendered of no effect, and the cause be remanded back to the board of commissioners for such further proceedings as may be required by law in the premises." No objection was made to this finding and judgment by any of the parties.

Where assessments are adjudged erroneous, and the other findings of the board of commissioners are approved by the circuit court, the entire proceeding is not vacated or annulled. All that the judgment before us does is to annul the assessments, for the reason that they are erroneous; in other respects the action of the commissioners was approved. It can not be justly assumed that the judgment of the circuit court had the effect to annul the entire proceedings, for all that it professed to do was to remand the case for a correction of the assessments.

The appellant assumes that the order remanding the case to the board...