Walb v. Eshelman

• Decision Date: 29 March 1911
• Docket Number: No. 21,800.,21,800.
• Citation: 94 N.E. 566,176 Ind. 253
• Parties: In re APPLEMAN et al. WALB v. ESHELMAN et al.
• Court: Indiana Supreme Court

176 Ind. 253

94 N.E. 566

In re APPLEMAN et al.WALB

v.ESHELMAN et al.¹

No. 21,800.

Supreme Court of Indiana.

March 29, 1911.

Appeal from Circuit Court, La Grange County; Wm. J. Davis, Special Judge.

In proceedings by Willis E. Appleman and others for the establishment of a drain, George P. Eshelman and others intervene by petition against Clyde A. Walb, contractor for the construction of the drain, and ask for the cancellation of his contract. Judgment for intervening petitioners, and defendant Walb appeals. Reversed and remanded.Hanan, Ewbank & Hanan, Dodge & Dodge, and Frank J. Dunten, for appellant. Deahl & Deahl, Sidney K. Ganiard and Merritt & Duff, for appellees.

MYERS, C. J.

A petition for drainage was filed in the La Grange circuit court August 7, 1909, upon which such proceedings were thereafter had that the ditch was established and the assessments confirmed May 18, 1910, and a commissioner appointed to construct the drain, and the work was let to appellee Walb. At the November term, 1910, one Spangler, and a number of persons through the land of one of whom the ditch remains to be constructed, filed in the La Grange circuit court, in the proceeding, a verified petition alleging that they were the owners of lands which will be affected by the construction of the proposed drain, and that the ditch is not being constructed according to the specifications, in that it is being cut from 8 to 16 feet wider than the specifications, and is being cut with perpendicular instead of sloping banks as specified, and by reason of the wide cutting the earth is thrown back so as to render worthless a wider strip of ground than is necessary, and that it is not necessary for the proper construction of the work of drainage of the lands, and asking the court to direct the commissioner to make an immediate report showing whether said drain is being constructed according to contract. That, if said report shows that it is not being so constructed, the said Clyde A. Walb may be cited to appear before the court and show cause why his contract should not be canceled, and all payments for work refused. On November 28, 1910, without order or direction of the court, the drainage commissioner filed a verified report in said court in the proceedings, in which he shows in detail the manner in which the work is being done, and that it is being cut much wider than the specifications, and with perpendicular banks, and in other particulars not according to the specifications. On December 7, 1910, the court entered an order in the matter that “the regular judge, being disqualified to hear this cause by reason of consultation with parties in interest before his election, now appoints William J. Davis, a reputable attorney of the state of Indiana, as special judge in said cause.” The record shows: That on the same day Mr. Davis took and subscribed an oath of office, and then recites: “And by agreement of all parties the further hearing of this cause is set for Monday, December 12, 1910, at 9:30 o'clock a. m.” That on December 12, 1910, the commissioner of drainage filed proof of notice to the contractor, Walb, reciting the fact of the filing of the petition by Spangler and others on November 22, 1910, asking a report by the commissioner as to the construction, and that he had filed a report “showing the condition of said work, and showing that you are not constructing said work according to your contract and the specifications,” and that on presentation of the report “the court fixed Monday the 12th day of December, 1910, for the hearing of said report, and all matters properly connected therewith,” and notifying Walb “to be and appear before the judge of the La Grange circuit court at the courthouse in La Grange, La Grange county, Ind., on said Monday, the 12th day of December, 1910, and answer said report, and on your failure so to do said report will be heard and determined in your absence.” This notice was signed by the commissioner for construction by his attorneys, and proof of notice to Walb December 9, 1910, by copy delivered by the sheriff, and proof of such notice was made in open court and a finding entered December 12, 1910, that due notice had been given the contractor. On December 12, 1910, Walb entered a special appearance, and moved the court to set aside and annul the notice, and pretended process heretofore entered, and presented against him, and the judgment holding the same sufficient, for the reasons: (a) That the court has not acquired jurisdiction of the respondent in the matter; (b) that no process has issued to or been served on him, and that he had not appeared; (c) that the Honorable Wm. J. Davis, who made and entered the judgment against respondent, is not, and has not been, legally appointed, selected, and qualified to act as such judge, and is without jurisdiction in the matter. This motion was overruled, and Walb excepted, and then filed a motion to remand the cause to the regular judge of the La Grange circuit court for reassignment to a special judge on the ground that the Honorable Wm. J. Davis was not, and has not been, legally selected and appointed as special judge herein according to law, and is not legally qualified to act as special judge herein. That motion was overruled, and Walb excepted. Thereupon without a rule against, or an answer by, Walb, the record recites that “the hearing and trial proceeds on the report of the ditch commissioner, and objectors' petition, and, pursuant to said notice to the contractor and the commissioner of drainage, Gouvernear A. Tucker is now sworn and testifies as a witness, and adjournment is taken for the noon recess,” and after the convening of court after the said noon recess, and pending the hearing, and after evidence was heard in said cause, contractor Clyde A. Walb now files demurrer to the complaint of Gouvernear A. Tucker, on the ground that the same does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and Walb excepted and then filed a demurrer to the petition of Spangler and others on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and Walb excepted, and filed answer in general denial to the complaint of Spangler and others, and to the complaint of Tucker, drainage commissioner. Walb then filed a motion for a special finding of facts and find specially upon each issue of fact submitted. The record then recites: “And the trial of this cause proceeds by the introduction of evidence, and the adjourning hour having arrived, and there not being time to complete the hearing of said matter to-day, court is adjourned until to-morrow morning at 9:30 o'clock.”

The trial then proceeded on the 13th of December, and certain parties dismissed the petition as to themselves, and the court denied the request of Walb for a special finding of facts, and Walb excepted, and the court then filed his findings of facts, judgment, and order of the court, and enters findings, judgment, and order herein as follows: “After hearing the allegations and proofs, and being sufficiently advised in the premises, the court finds that Clyde A. Walb, the contractor, for the construction of the ditch in question, is not and has not been constructing the same in substantial compliance with and in accordance with the specifications of said ditch, as hereinbefore adopted and ordered by the court in this, to wit: (Here follow particulars of the departure from the specifications.) It is therefore ordered and adjudged by the court that said Clyde A. Walb, contractor, be and is hereby ordered and directed to proceed with the completion and construction of said ditch in substantial compliance with the specifications thereof as heretofore ordered by the court; and said contractor, his agents, servants, and employés, are hereby forbidden and enjoined to dig and excavate said ditch through the remainder of its length of a width at the top materially in excess of the width mentioned in said specifications; and he is forbidden and enjoined from digging the remainder of said ditch with perpendicular banks, and is required to leave said ditch when completed with sloping banks as provided in said specifications, and with said roll of earth and roots and other débris removed. And the ditch commissioner, Gouvernear A. Tucker, is hereby ordered and directed to insist and see that this order of the court is substantially carried out and complied with. And it is further ordered by the court that in the event said contractor shall fail, neglect, or refuse to comply with this order of the court in relation to the construction of this ditch, that he, said drainage commissioner, shall at once, on such neglect, failure, or refusal on the part of said contractor take the necessary steps, as provided by statute, to annul and cancel the contract heretofore entered into by him with said contractor for the construction of said ditch. To which findings of fact, and judgment of court to each conclusion of law separately and severally, the said Walb objects and excepts. And the defendant Clyde A. Walb now files his motion...