Nisius v. Chapman

Spencer, J.

Appellants filed a petition in the commissioners’ court of Jasper county, Indiana, for the improvement of certain highways in Jordan township, in said county, as provided by §7711 et seq. Burns 1908, Acts 1905 p. 521. The petition was set for hearing June 6, 1911, and notice given in compliance therewith.

On said date, appellee, as a taxpayer of said township, owning land directly affected by the proposed improvement, filed a written motion in commissioners’ court challenging the jurisdiction of the board, and praying a dismissal of said petition. The board overruled said motion and sustained the petition, appointed an engineer and two viewers, and referred the petition to them for further action. Appellee thereupon appealed to the circuit court of Jasper county, which court held that neither the commissioners nor the circuit court had jurisdiction of said cause, and ordered its dismissal, from which order this appeal is presented.

Appellants insist that the circuit court erred in refusing to dismiss appellee’s appeal from the order of the board. The sole question presented for determination here is, Was the action of the board sustaining said petition, a judgment from which an appeal could be taken?

1. When a statute provides that an appeal may be taken from any decision of the board, it has been held uniformly that the same must be final in its nature, and that it must put an end to the proceedings before the tribunal. Good v. Burk (1906), 167 Ind. 462, 467 , 77 *496 N. E. 1080 ; Summe v. Browne (1905), 165 Ind. 490 , 76 N. E. 99 ; Strebin v. Lavengood (1904), 163 Ind. 478, 484, 485 , 71 N. E. 494 ; Hall v. McDonald (1908), 171 Ind. 9, 11 , 85 N. E. 707 .

2. Under §7711, supra, the commissioners order the construction of gravel roads, but such improvements cannot be made without the further and final action of the boaxM, confirming the report of a competent civil engineer and two viewers, three responsible freehold voters of the county who are not residents of, nor owners of taxable property in, the township where said roads are to be built, who are appointed by the board for the purpose of determining whether or not said proposed improvements will be of public utility, the character thereof, furnish proper profiles and specifications as requix-ed by said act, and to estimate the costs of said improvements, and assess any damages for injuries to property. The board then orders an election held, and if a majority of votes cast be found in favor of the proposed improvement, the board enters its final order establishing the same. Such an order is final within the meaning of said act from which an appeal may be taken, and until such an order is made by the board the proceedings remain under the jurisdiction of said board of commissioners.

3. No appeal can be taken from interlocutory orders, unless there is a statute expressly providing therefor, and such statute must be strictly construed. Natcher v. Natcher (1899), 153 Ind. 368 , 55 N. E. 86 ; Western Union Tel. Co. v. Locke (1886), 107 Ind. 9 , 7 N. E. 579 ; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204 , 82 N. E. 461 ; Barnes v. Wagener (1907), 169 Ind. 511 , 82 N. E. 1037 ; Neyens v. Flesher (1907), 39 Ind. App. 399 , 79 N. E. 1087 .

*497

2.

*496 Following the uniform decisions of this court, that an appeal will not lie from such an order as that made by the *497 board of commissioners, which was an interlocutory order, determining the jurisdiction of the board of commissioners in the matter of said petition, we must conclude that the appeal from the board of commissioners was improperly taken, there being no statute expressly providing therefor.

The record does not show that any other order was made or action taken by the board. This appeal was prematurely taken, and the record presents no question for our consideration, except as stated above. An appeal will only lie in such cases from the final order of the board. Wilson v. McClain (1892), 131 Ind. 335, 336 , 30 N. E. 1093 ; Kirsch v. Braun (1899), 153 Ind. 247, 259 , 53 N. E. 1082 .

4. The names of the parties in the assignment of errors are the same as those signed to the petition as filed in the commissioners’ court. If the parties to the judgment are designated in the assignment of errors, the same as they were designated in the lower court, such assignment of errors is sufficient. This is true, because no party to a proceeding can procure a dismissal of a cause in this court under Rule 6, on the ground that the names in the assignment of errors are insufficient, when he raised no such question in the lower court.

Judgment reversed, with instructions to sustain appellants’ motion to dismiss the appeal' from the order of the board of commissioners. •

Note.—Reported in 99 N. E. 785 . See, also, under (1) 11 Cyc. 405; (2) 37 Cyc. 133; (3) 2 Cyc. 591; (4) 2 Cyc. 985.