Updegraff v. Palmer

• Decision Date: 20 April 1886
• Citation: 6 N.E. 353,107 Ind. 181
• Parties: Updegraff v. Palmer and others.
• Court: Indiana Supreme Court

107 Ind. 181

6 N.E. 353

Updegraff

v.Palmer and others.¹

Supreme Court of Indiana.

April 20, 1886.

Appeal from Cass circuit court.

John C. Nelson and H. C. Thornton, for appellant.

D. C. Justice, for appellees.

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 the counties. Shaw v. State, 97 Ind. 23;Crist v. State, Id. 389; Buchanan v. Rader, Id. 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 first 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, 4 N. E. Rep. 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, etc., 99 Ind. 417;Sunier v. Miller, 4 N. E. Rep. 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 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. Dyer, 3 N. E. Rep. 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. Dyer, supra; Carr v. State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Platter v. Board, 103 Ind. 360; S. C. 2 N. E. Rep. 544; Cauldwell v. Curry, 93 Ind. 363;Board, etc., v. 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 second 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: (1) The reference is not authorized by law; (2) the petition has never been filed, or placed upon the docket; (3) the reference is not authorized by section 2 of the act of March 8, 1883, inasmuch as the petitioner has not noted thereon the day set for docketing thereof. Prior to the filing of this motion, January 9, 1883, the drainage commissioners filed bonds which were approved by the court, and one of them took the oath required by law. On the fifth of February, 1883, the report of the commissioner was made to the court, and an order entered approving the report, and establishing the ditch. The decisions very clearly declare that the motion of the appellees came too late to be of avail. Smith v. Smith, 97 Ind. 273;Carr v. State, supra.

The general statement in the motion, that the reference is not authorized by law, is too general to present any question for our consideration. In such cases as this the objections must be specifically stated. Meranda v. Spurlin, supra;Higbee v. Peed, supra;Anderson v. Baker, 98 Ind. 587.

On the fifteenth day of March, 1883, the appellees moved to vacate the judgment rendered by the court, and to set aside the report of the commissioners, assigning various reasons in support of their motion. Many of these reasons are too general to be entitled to consideration, and the others present no question relevant to the present inquiry, for it must be remembered that the question here is not whether it was proper to set aside the report or vacate the judgment, but whether it was proper to dismiss the proceedings. The ruling complained of is the dismissal of the proceedings, and that is the question for our decision. Counsel wander from the point, and assail the proceedings generally, but this cannot avail, for the reason that there is but one controlling question involved in the controversy. Confining our decision to the issue between the contestants, we shall examine only the points which bear upon that issue, and these are presented, so far as they are presented at all, by the motion made on the thirteenth day of September, 1883. It was on this motion that the court entered judgment dismissing the petition. There are several reasons assigned in this motion, which are too general to present any question, and we pass them without further comment.

The third reason assigned is that “the petition is insufficient to authorize the establishment of the said ditch.” The appellees had, as we have seen, moved to set aside the judgment of the court approving the report of the commissioners, and it now remains to add that this motion was so far...