Hinchman v. Wilson

Hadley, J.

Hinchman and others filed in the circuit court their petition for the improvement of a drain by the deepening and widening of Brandywine creek, under §5624 Burns 1894. Within ten days after kthe proceeding was docketed as a pending cause, not counting the day of docket *477 ing and intervening Sunday, more than 200 interested persons, most of whom had been admitted parties to the petition upon their own application for that purpose, filed a remonstrance against the. proposed improvement, and requested its dismissal. Pending a hearing upon the remonstrance, and more, than four months after the filing thereof, sixty-four persons who had signed the.remonstrance moved the court to dismiss the same so far as they were severally • concerned. The court overruled the motion to dismiss, and finding that two-thirds of the landowners affected by the proposed work had signed the remonstrance, dismissed the-proceeding at the cost of the petitioners. The petitioners and remonstrants, whose motion' to dismiss was overruled, join in this appeal and present the single question: Did the court err in overruling the motion of the sixty-four remonstrants to be permitted to withdraw their names from the remonstrance ? The words of the statute are: “Any person named in such petition as the owner of land shall have ten days, exclusive of Sunday and the day of docketing * * * to file with said court any demurrer, remonstrance or objection * * *. All objections to the petition or to the acting of any drainage commissioner not made within said ten days shall he deemed waived.”

When the remonstrance comes on to be heard, within a long or short period after the filing thereof, the question to be determined “is whether or not the required number of landowners, with proper qualifications, were remonstrants at the expiration of the ten days’ period. No remonstrant may withdraw subsequently.” Sauntman v. Maxwell, 154 Ind. 114 , and cases cited. Judgment affirmed.