The Washington Ice Company v. Lay

• Decision Date: 17 September 1885
• Docket Number: 11,381
• Citation: 2 N.E. 222,103 Ind. 48
• Parties: The Washington Ice Company et al. v. Lay et al
• Court: Indiana Supreme Court

2 N.E. 222

103 Ind. 48

The Washington Ice Company et al. v. Lay et al

No. 11,381

Supreme Court of Indiana

September 17, 1885

From the Laporte Circuit Court.

Judgment is affirmed, with costs.

M. Nye and D. Turpie, for appellants.

L. A Cole, for appellees.

OPINION

Zollars, J.

Appellee instituted this proceeding before the board of county commissioners, under section 5035, R. S. 1881, to have an alleged highway ascertained, described and entered of record on the ground that it had been used as such for twenty years. From a decision of the board against them, they appealed to the circuit court. In that court the appellants here moved to dismiss the appeal. The overruling of that motion is assigned as error. The clerk below has inserted in the transcript what purports to be a copy of the motion, but it was not made a part of the record by order of the court, nor is it contained in any bill of exceptions. We can not disregard the contention of appellees, that the motion is not a part of the record, and hence is not before us for any purpose. Crumley v. Hickman, 92 Ind. 388, and cases there cited. Without the motion, we have no way of knowing upon what it was based, and hence have nothing upon which to base a decision that the ruling upon it was right or wrong. The assignment predicated upon that ruling, therefore, presents no question for decision here.

The second assigned error is, that the court below erred in overruling appellants' motion to dismiss the petition and the proceedings under it. Under this assignment, the argument is that the petition, and all proceedings under it, should be dismissed, because of defects in the petition, and because there was no notice given of the pendency of the petition and proceeding.

Upon the question of notice, it is sufficient to say that the record before us requires no decision as to its necessity. We, therefore, leave that question where it is left by former decisions. Appellants, who seem to own all of the land over which the alleged highway passes, appeared in the commissioners' court, and, without making any question as to notice, made a full appearance by filing what is denominated an answer. At the first term of the circuit court after the appeal, the parties all appeared by counsel, and the cause was continued without any question as to notice. At a subsequent term, appellants moved to dismiss the appeal, and also to dismiss the proceedings. The clerk below has inserted in the transcript copies of these motions. As they were not made a part of the record by order of the court, and are not contained in any bill of exceptions, they are not properly in the record, so far, at least, as they relate to, or are based upon, the want of notice. There are, therefore, two conclusive reasons why this court can not, upon the question of notice, overthrow or interfere with the final judgment below.

In the first place, the motions to dismiss not being properly before us, there is nothing upon which to predicate a decision that notice was not given or that appellants at any time made any question as to notice.

In the second place, appellants should have made the question as to the notice at their first opportunity before the board of commissioners. Having appeared and having made no objections there, as to notice, they waived whatever objections might have been made. Having thus waived the objections, they were not in a condition to make them upon appeal. This is the rule in other highway and analogous cases, and the reasonable rule to be applied here. We cite some of the cases: Milhollin v. Thomas, 7 Ind. 165; Smith v. Alexander, 24 Ind. 454; Fisher v. Hobbs, 42 Ind. 276; Green v. Elliott, 86 Ind. 53, and cases there cited; Vandever v. Garshwiler, 63 Ind. 185; Peed v. Brenneman, 89 Ind. 252; Lowe v. Ryan, 94 Ind. 450; Bradley v. City of Frankfort, 99 Ind. 417.

Under the assignment, based upon the motion to dismiss the proceedings, and the fourth assigned error, that the petition does not contain a sufficient statement of facts to constitute a cause of action against appellants, it is argued that the petition is defective, because it does not contain the names of the persons over whose land the alleged highway passes, and because it does not purport to be signed by any freeholder or citizen of Laporte county.

Assuming that the petition should be signed by freeholders, as in an ordinary highway case, appellants' counsel argue that it is insufficient because it does not purport to be so signed. But if the correctness of the assumption should be granted, about which we decide nothing in this case, counsel's conclusion would not follow. The general highway law provides that the petition shall be signed by freeholders, but it does not require that this shall appear upon the face of the petition. The petition need not, in any case, "purport to be signed by freeholders." Brown v. McCord, 20 Ind. 270. Whether or not the petition is so signed, is a question for the decision of the county board before taking further action upon it. Objections to the qualifications of the petitioners should be made at the first opportunity before the county board. If not made then and there, they will be deemed as waived. Little v. Thompson, 24 Ind. 146; Fisher v. Hobbs, 42 Ind. 276; Wilson v. Whitsel, 24 Ind. 306; Sowle v. Cosner, 56 Ind. 276; Turley v. Oldham, 68 Ind. 114.

It is further contended under these assignments of error, that the petition is fatally defective because it does not give the names of the persons over whose land the highway passes. This contention is based, in the main, upon the case of Vandever v. Garshwiler, supra. It was said in this case, that when the moving parties are other than the county board, the petition should give the names of the owners of the land over which the road is claimed to run, so that the court can cause proper notice to be given to them of the pendency of the petition. In the case before us, however the reason has no application. Here, it appears by appellants' motion to dismiss, and otherwise, that they were the owners of all the land over which the highway passes, and that without any objections in the commissioners' court, they made a voluntary appearance to the petition and proceeding. So far, therefore, as concerns notice to land-owners, no beneficial end could have been accomplished by inserting their names in the petition. Nor would the ends of justice be subserved by reversing the judgment on account of this alleged defect in the petition. Without...