Thompson v. Mossburg

• Decision Date: 09 May 1923
• Docket Number: No. 23741.,23741.
• Citation: 193 Ind. 566,139 N.E. 307
• Parties: THOMPSON et al. v. MOSSBURG et al.
• Court: Indiana Supreme Court

193 Ind. 566

139 N.E. 307

THOMPSON et al.

v.MOSSBURG et al.^*

No. 23741.

Supreme Court of Indiana.

May 9, 1923.

Appeal from Circuit Court, Wells County; E. E. McGriff, Special Judge.

Petition by Robert H. Mossburg and another for the construction of a public drain. From a judgment establishing the drain and confirming assessments, Byron E. Thompson and others, as remonstrators under the statute, appeal. Affirmed.Cook & Krieg and Bowers & Feightner, all of Huntington, for appellants.

Eichhorn & Edris, of Bluffton, for appellees.

EWBANK, J.

The two appellees filed a petition for the construction of a public drain about two miles long extending from a point named as the place of beginning down stream to the outlet in an existing dredged ditch. The petition named as the owners of lands to be affected the petitioners and one other person, and described certain lands alleged to be owned by these three persons, and also alleged that a certain highway would be benefited. The petition was filed on the 12th of November, 1917, and notice having been served on the third landowner named therein, and on the trustee of the township in which the highway to be benefitted is situated, the cause was docketed on the 8th of December, 1917. No remonstrance of any kind having been filed, the drain was duly referred to three commissioners, who were ordered to meet on January 5, 1918, and qualify, and thereafter to report to the court. Extensions of time having been granted, the commissioners filed their report on November 20, 1918, by which they found that the proposed drain will be practicable and of public utility; that it will improve the public health and benefit the public highways, and will cost less (including damages and expenses) than the benefits. They further reported that the drain should be constructed over substantially the route described in the petition, but beginning nearly half a mile farther up stream on the little branch to be improved, and running to the outlet in the dredged ditch, as named in the petition. However, they also reported in favor of constructing five branches of “laterals” emptying into the drain as so laid out, and reported that the lands of 190 persons, in the total amount of more than 10,000 acres, would receive benefits from the construction of the proposed drains, for which they were thereby assessed. On December 14, 1918, the additional owners of lands affected were served with notice that the report of the commissioners had been filed, as above stated, and by the court had been set for hearing on the 27th of December, 1918. Certain of the parties served with this notice, to the number of 142, alleging that they owned lands assessed for the proposed improvement, in the aggregate amount of nearly 10,000 acres, and that they were more than two-thirds in number of the landowners affected by the proposed drain, and would have joined in a remonstrance against its construction, and would have filed such remonstrance within 20 days from the docketing of the cause, if the petitioners had named and described their lands in the petition and given them notice, signed and filed certain written instruments, each of which recited on its face that it was a “remonstrance,” and in which papers they designated themselves as “remonstrators,” and asked “that the report be set aside and the petition dismissed at the cost of the petitioners, and for all other proper relief in the premises.”

The record recites that four months afterward the petitioners (appellees) “filed their motion to strike out each of the several remonstrances under date of December 20 and 31, 1918, and designated severally as ‘remonstrance of Frederick Sheets,’ [reciting the designation of each remonstrance], which motion, reads *** as follows,” and the record then sets out each motion, asking that each of the several remonstrances so designated be stricken out for the alleged reasons: (1) That neither stated was a statutory or valid reason for remonstrance; (2) that neither was filed in time; (3) that neither showed a valid reason or excuse for the failure of the signers to join in and file a “two-thirds” remonstrance within the statutory period; and (4) they were not within any provision of the statute, and that none of the “remonstrances” was verified by anybody. This motion was sustained, which ruling is challenged by some of the assignment of errors.

Certain remonstrances for cause having been filed, the issues were submitted for trial, and after the evidence had been heard, but before a finding was made, the appellants, on May 22, 1919, filed a number of unverified written instruments, each of which recited the qualifications of the signers, and that “these remonstrators constitute more than two-thirds in number of the landowners” affected, and that they “hereby remonstrate to and against said report of said drainage commissioners and remonstrate against the location and construction of said proposed drain, and ask that said report and petition be dismissed.” Appellees having filed a motion to strike out these remonstrances, the court sustained this motion, and struck out “each of the said two-thirds remonstrances heretofore filed herein,” which ruling is challenged by certain other assignments of errors. Appellants have also assigned as error the overruling of their motion for a new trial, but all alleged errors have been waived except the rulings on said motions to strike out the remonstrances. Final judgment having been rendered establishing the drain and confirming the assessments, an appeal was perfected.

All of these remonstrances, whether filed in December, 1918, or in May, 1919, proceed on the theory of being demands joined in by two-thirds of the landowners affected, and of defeating the proposed improvement by the mere showing that such two-thirds of the landowners have “remonstrated in writing against the construction of such drain or ditch.” Burns' 1914, § 6142; Acts 1907, c. 252, p. 512, § 3.

[1] None of them is verified by the oath of the remonstrators or anybody else. Therefore none of them could be upheld against a motion to strike out on the ground that it was an amendable remonstrance for cause, since such remonstrances must be sworn to. Burns' 1914, § 6143; Acts 1907, c. 252, p. 515, § 4.

[2] Neither could any be upheld as being a plea in abatement because of a defect of parties; the statute also requiring pleas in abatement to be sworn to. Burns' 1914, § 371; R. S. 1881, § 365; Moore v. Harmon, 142 Ind. 555, 557, 41 N. E. 599.

[3][4] None of these instruments appear to have been framed as a motion to set aside the docketing of the cause, because of such docketing having been procured by alleged fraud. Each is denominated on its face a “remonstrance,” and is so named in the order book entry which recites that it was filed. Each refers to the persons who signed it as “these remonstrators,” and recites that they “now remonstrate against the construction of said proposed drain,” and asks that “the petition be dismissed,” being relief to which they would not be entitled on a motion to set aside the order docketing the cause. And none of them contains a suggestion that it is a motion to set aside that order, or any kind of a motion at all. Moreover, a motion asking relief because of facts not apparent on the face of the record would have to set out facts affirmatively showing the moving party entitled to relief and be sworn to, or to be accompanied by affidavits showing the existence of such facts, including the exercise of diligence by the parties making the motion, or it might be overruled without error. McDonel v. State, 90 Ind. 320, 321.

[5] The court would not be bound to accept as true the statements of fact in an unverified motion of a dilatory character, for the purpose of...