Updegraff v. Palmer, 11,962

• Docket Nº: 11,962
• Citation: 6 N.E. 353, 107 Ind. 181
• Case Date: April 20, 1886
• Court: Supreme Court of Indiana

6 N.E. 353

107 Ind. 181

Updegraff
v.
Palmer et al

No. 11,962

Supreme Court of Indiana

April 20, 1886

Petition for a Rehearing Overruled June 23, 1886.

From the Cass Circuit Court.

Judgment reversed, with instructions to set aside the order dismissing the appellant's petition.

J. C. Nelson, Q. A. Myers and H. C. Thornton, for appellant.

D. C. Justice, for appellees.

OPINION [6 N.E. 354]

Elliott, J.

The appellant petitioned the Cass Circuit Court to establish a ditch, and to assess benefits and damages. The court dismissed the petition.

The fact that the proposed ditch extended into Carroll county did not deprive the Cass Circuit Court of jurisdiction, as part of the ditch will, if established, be within Cass county. It is settled that if a ditch extends into or through two counties, proceedings may be prosecuted in either one of [107 Ind. 182] the counties. Shaw v. State, etc., 97 Ind. 23; Crist v. State, ex rel., 97 Ind. 389; Buchanan v. Rader, 97 Ind. 605; Meranda v. Spurlin, 100 Ind. 380.

The fact that the ditch, described in appellant's petition, extends into Carroll county, did not, therefore, warrant a dismissal of the proceedings.

The appellant's petition was filed on the 1st day of January, 1883, so that the proceedings are governed by the law of 1881, and not by the statute of 1883. Under the law of 1881, it was proper to give notice of the time of filing the petition. McMullen v. State, ex rel., 105 Ind. 334, 4 N.E. 903. This was the notice given by the appellant.

The notice is substantially in the form prescribed by statute, and proof of posting was made by affidavit. The appellees appeared and filed a remonstrance, but did not challenge the sufficiency of the notice, nor did they question the method of service nor the character of the proof. By thus appearing without objection, they waived these questions. Higbee v. Peed, 98 Ind. 420; Bradley v. City of Frankfort, 99 Ind. 417; Sunier v. Miller, 105 Ind. 393, 4 N.E. 867, and authorities cited.

We have many decisions in highway cases holding that where parties appear and remonstrate, they will be confined to the grounds of objection stated in their remonstrance. This long settled rule [6 N.E. 355] is a reasonable and just one, for it enables the trial court and parties to correct errors, thus repressing litigation. If the question were an open one we should not be inclined to a different view from that which has so long prevailed, but as the question is well settled we need not now discuss it. Jackson v. State, etc., 104 Ind. 516, 3 N.E. 863, and authorities cited.

The assumption of jurisdiction and the exercise of authority is a decision upon the question of notice without any formal entry declaring the notice sufficient. Jackson v. State, etc., supra; Carr v. State, etc., 103 Ind. 548, 3 N.E. 375; Platter v. Board, etc., 103 Ind. 360, 2 N.E. 544; [107 Ind. 183] Cauldwell v. Curry, 93 Ind. 363; Board, etc., Hall, 70 Ind. 469.

The record in this case shows that the court did assume jurisdiction and did exercise judicial authority over the parties and the subject-matter.

On the 2d day of July, 1883, the appellees appeared and filed objections to the reference of the petition to the drainage commissioners, stating the following grounds for the motion: 1st. The reference is not authorized by law. 2d. The petition has never been filed or placed upon the docket. 3d. The reference is not authorized by section 2 of the act of March 8th, 1883, inasmuch as the petitioner has not noted thereon the day set for docketing thereof. Prior to the filing of this motion, January 9th, 1883, the drainage commissioners...