Zumbro v. Parnin

• Decision Date: 07 June 1895
• Docket Number: 17,408
• Citation: 40 N.E. 1085,141 Ind. 430
• Parties: Zumbro et al. v. Parnin et al
• Court: Indiana Supreme Court

40 N.E. 1085

141 Ind. 430

Zumbro et al. v. Parnin et al

No. 17,408

Supreme Court of Indiana

June 7, 1895

From the Allen Circuit Court.

The judgment is affirmed.

T. E Ellison, for appellants.

W. G Colerick, for appellees.

OPINION

Hackney, J.

In the circuit court the appellants sought to establish a public drain, making the appellees, excepting Noah Knepper, parties. Within ten days after the petition was docketed as an action said Knepper appeared, and, upon application in writing, was made a party defendant, without any objection whatever from the petitioners. Within the time allowed the appellees including Knepper, filed a remonstrance against the establishment of the proposed drain, and constituting two-thirds in number of all the parties to the proceeding they prayed the dismissal of the petition. At the next term of court the petitioners sought and obtained leave to amend their petition, in respect to the course of the proposed drain, as claimed to have been erroneously described in the petition as originally filed. After the amendment the appellants moved the court to strike from the files the application of Knepper to be made a party. Affidavits were filed in support of and in opposition to said motion, and the court overruled said motion and dismissed the proceeding as prayed in said remonstrance.

The two rulings of the court in refusing to strike out Knepper's application to be made a party, and in dismissing the proceedings, are the only alleged errors presented by the argument. Upon the affidavits the issue was submitted, and determined in favor of Knepper, that his lands would be affected by the proposed drainage. Of the fact thus determined no question is made, but the learned counsel for appellants insist that when the petitioners have alleged the names of those whose lands "it is believed will be affected by the proposed drainage," such allegation is conclusive, and will not admit of inquiry upon the application of others not so named. It is said that the court, acting upon the presumption that section 272, R. S. 1881 (section 273, R. S. 1894), applied to the question of practice, admitted and continued Knepper as a party by virtue of the provisions of that section. It reads as follows: "The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy can not be had, without the presence of other parties, the court must cause them to be joined as proper parties. And when, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be made a party by the proper amendment."

Counsel does not claim that the rules of the civil code do not apply, but it is urged that the section quoted applies only in actions for the recovery of real or personal property. The language of the section is broad enough to include and admit all parties to any controversy in the nature of a civil action. See Crume v. Wilson, 104 Ind. 583, 4 N.E. 169; Bell v. Cox, 122 Ind. 153, 23 N.E. 705.

These proceedings were instituted under the act of April 6, 1885; Elliott Supp., section 1184, et seq.; R. S. 1894, section 5622, et seq., and by the provisions of that act new parties may be admitted, under section 3 of the act, when the commissioners report, as affected, lands not included in the petition, and, under section 8, upon the petition of any person interested, "showing that lands not mentioned in the original petition are affected, as he believes, by such drainage."

After such petition and such notice as the court may direct, the question of the extent to which such new lands are affected is referred to the commissioners, and all proceedings are had with reference thereto the same as if upon original petition.

There is no reason for excluding any person whose lands are affected by the proposed drainage, and there is strong reason for including all who are affected. It could not have been intended that the judgment of the original petitioners, as to the lands affected, should be conclusive since that theory would have denied a hearing to one affected and would have afforded opportunities for imposition by the petitioners.

We have no doubt of the correctness of the court's action in admitting Knepper as a party, and, if it were doubtful, it may be seriously questioned whether the appellants could raise the question after permitting him to become a party without...