Widmer v. Sweeney
| Decision Date | 16 February 1955 |
| Docket Number | No. 29094,29094 |
| Citation | 124 N.E.2d 385,234 Ind. 263 |
| Parties | Samuel WIDMER, Appellant, v. George F. SWEENEY, Daniel W. Biddle, James Hoagland, Reason H. Biddle, Robert E. Girtz, Mrs. Anna. L. Walbel, Francis Dale Biddle, George W. Walbel, Edgar D. Basch, Otis Stanfield, Gertrude Biddle, Gertrude E. Girtz, Minnie Hoagland, Appellees. |
| Court | Indiana Supreme Court |
F. Edward Dumas, Fowler, Franics J. Murphy, Vernon E. St. John, Lafayette, for appellant.
William S. Isham, Ernest Merrick Hawkins, H. Joe Rayle, Fowler, for appellees.
This is an appeal from a judgment authorizing the construction of an open ditch and for the repair of auxiliary tile which drained thereinto. Petition therefor was filed in 1950 by appellees.
The petition alleged that the petitioners were the owners of more than 10 per cent of the lands affected lying outside the corporate limits of any city; that the successful drainage of their respective lands, etc., could not be accomplished in the best and cheapest manner without affecting the lands of others, whose lands were described in the petition. That certain described highways would be benefited by the proposed drainage; that the work would be of public utility. That the damages and expenses of such drainage would be less than the benefits which would result to the owners of the lands likely to be benefited thereby. That the land described was in a drainage area inadequately drained by an existing tile drain known in the County Records as the 'Cheadle Ditch.' That to adequately drain the area, it would be necessary to convert the present inadequate tile drain into a new public open ditch and drain, which construction would necessitate 'corrections and specifications of more than 10 per cent of the present tile drain.' The petition also alleged that, in addition to the construction of the described open ditch and drain, several tiles needed to be repaired to perform their drainage function properly by unstopping them in some instances and increasing the size in others.
The appellant filed his 'remonstrance and objection' to both the preliminary and final reports of the surveyor and viewers. Trial was had on the remonstrance to the final report, which resulted in a finding and judgment confirming the same and establishing the ditch and drain. Appellant's motion for a new trial was overruled and this appeal followed.
Appellant, by his brief, presents two alleged grounds for reversal. They are as follows:
1. That 'the report was not according to law' for the reason that the surveyor and viewers did not file their preliminary report on the day designated by the court.
2. That the court had no jurisdiction over the subject matter for the reason that these proceedings, being entirely statutory, do not conform to the express limitations of the statute.
Other alleged errors are waived.
We consider appellant's first asserted ground for reversal. No question is presented upon this issue, unless we conclude that the failure to report, as directed, was sufficient in itself to deprive the court of further jurisdiction in the proceeding, and that the issue may, for the first time, he presented on appeal.
Appellant contends that the question was raised by his 'remonstrance and objection' to the preliminary report as filed, the particular objection being the first statutory grounds for remonstrance, to-wit: 'That the report * * * is not according to law.' § 27-114, Burns' 1948 Repl., Acts 1945, ch. 221, § 11, p. 1021. This 'objection' was followed by seven other grounds of remonstrance on the merits of the report. In support of this contention, appellant cites the case of Munson v. Blake, 1885, 101 Ind. 78, 83, 84, 85. In that case, the commissioners did not file their report on the day fixed by the court. Appellant filed a petition for leave to file a belated remonstrance thereto, which petition was denied. In that case, the court stated:
* * *
* * *'
The immediate question for us to consider is posed by the last sentence of above quotation: Was the objection presented 'at a proper time and manner in the court below'? The rule is fundamental that this court will not reverse a ruling of the trial court unless the specific objection relied upon was presented to that court for consideration. See: Higbee v. Peed, 1884, 98 Ind. 420; Meranda v. Spurlin, 1885, 100 Ind. 380; Hudson v. Bunch, 1888, 116 Ind. 63, 18 N.E. 390.
We conclude, therefore, that, because the grounds for the 'objection' were not made specific, the objection was not in such a manner as to present any issue Furthermore, had the objection been in proper form or manner, this court would have been obliged to affirm the ruling of the court below for the reason that the objection was not timely filed. Upon this issue, this court has stated:
Blake v. Quivey, 1888, 113 Ind. 124, 125, 126, 14 N.E. 916, 917. See also: Bohr v. Neuenschwander, 1889, 120 Ind. 449, 22 N.E. 416; Triplett v. Carlson, 1934, 206 Ind. 673, 191 N.E. 82.
It is contended, however, that, conceding that the objection to the belated report of the surveyor and viewers may not have been 'made at a proper time and manner' in the court below, nevertheless, such failure was such a deviation from the prescribed statutory procedure that it deprived the court of further jurisdiction of the proceedings. The recent case of Underhill v. Franz, 1951, 230 Ind. 165, 173, 101 N.E.2d 264, is considered as supporting this position. In that case, this court quoted from Freeman on Judgments 5th Ed. § 355, p. 737, with approval as follows:
"A court has no power to do anything which is not authorized by law and when its procedure is defined by a special statute, its judicial functions are essentially controlled thereby, and the remedy is confined to the mode prescribed, and the procedure so provided excludes resort to another or different procedure."
However, in dealing with the specific question here presented, our courts have held that, although failure on the part of the surveyor and viewers (commissioners) to file their report on the date fixed by the court may be cause for striking the report, such failure to perform their duty will not serve to discontinue the proceedings, unless such failure rests upon some fault or lack of diligence on the part of the petitioners. Blake v. Quivey, supra; Claybaugh v. Baltimore & Ohio Railway Co., 1886, 108 Ind. 262, 9 N.E. 100; Triplett v. Carlson, supra; Williams v. Dexter, 1911, 175 Ind. 659, 95 N.E. 113; Drinkwatter v. Eikenberry, 1946, 224 Ind. 84, 64 N.E.2d 399.
As heretofore stated, appellant asserts, as second major ground for reversal, that the court had no jurisdiction over the subject matter. We recognize the fact that proceedings for the construction and repair of public...
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