Crow v. Evans

Morris, J.

Appellees filed their petition in the Warren Circuit Court, praying for the establishment of a public drain through certain described lands located in Warren county. Appellant, with others not named in the petition, appeared at the proper time and filed a general remonstrance against the construction of such drain, under the proviso of §3 of the drainage act of 1907 (Acts 1907 p. 508, §6142 Bums 1908), which requires the dismissal of a drainage petition where a remonstrance is filed, signed by two- *662 thirds in number of the landowners named as sueh in the petition, or who may be affected by any assessment or damages.

A trial of the issue tendered by the remonstrance resulted in a finding that it was not signed by two-thirds in number of the persons affected, and a judgment that the same should be dismissed. Appellant filed a motion for a new trial, which was overruled. Prom the judgment dismissing the remonstrance, this appeal is prosecuted.

1. Appellees have filed a motion to dismiss this appeal, for the alleged reasons, (1) that no right of appeal from sueh order is conferred by the drainage act of 1907, and (2) that the judgment is not a final one under §671 Bums 1908, §632 R. S. 1881, authorizing appeals in civil actions. Appellees are correct in their contention. The drainage act (Acts 1907 p. 508, §6140 et seq. Burns 1908) contains no provision referring to appeals, except that found in §4 (§6143 Bums 1908), which provides that “the order of the court approving and confirming the assessments, and declaring the proposed work of drainage established shall be final and conclusive, unless an appeal therefrom to the supreme court be taken,” etc. It is evident that this provision does not contemplate an appeal before the making of the order establishing the proposed drain.

2. It is also evident that the judgment appealed from is not a final one within the meaning of §671, supra. This statute contemplates one which makes a final disposition of the subject-matter of the litigation as to all parties, and puts an end to all the issues arising between them regarding the subject-matter of the action, to the full extent of the power of the court to dispose of the same. Terre Haute, etc., R. Co. v. Indianapolis, etc., Traction Co. (1906), 167 Ind. 193 , 78 N. E. 661 ; 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 , and cases cited; *663 Wehmeier v. Mercantile Banking Co. (1912), 49 Ind. App. 454 , 97 N. E. 558 .

When appellant and others filed their remonstrance they did not institute a proceeding independent of that originated by the petition of appellees. Barnes v. Wagener, supra. The subject-matter of the litigation was the establishment of the proposed drain, and after the remonstrance was dismissed the lower court still had control of that subject-matter, and still possessed the power to dispose of other issues pertaining thereto. Section 6142, supra, expressly requires the court to dismiss the petition, if the commissioners find the proposed drainage impracticable, not of public utility, or that it will cost more than the amount of benefits. In such ease, the error, if any, in having erroneously dismissed such a remonstrance as was filed here, would be rendered harmless to the remonstrators.

When this appeal was taken there had been no order establishing the proposed drain, and appellant, at that stage of the proceeding, was not entitled to a review by this court of the action of the trial court in dismissing the remonstrance.

Appeal dismissed.

Note.—Reported in 100 N. E. 8 . See, also, under (1) 14 Cyc. 1044—39 Anno.; (2) 2 Cyc. 586.