Hockemeyer v. Thompson

48 N.E. 1029, 150 Ind. 176, 1898 Ind. LEXIS 168

• Court: Indiana Supreme Court
• Decided: January 5, 1898
• Docket: No. 18,389
• Status: Published

Opinions

McCabe, J.

This was a proceeding commenced before the board of commissioners of Allen county for the construction of a ditch, under the provisions of the drainage act of 1881 by county boards. Section 5655 et seq., Burns’ R. S. 1894 (4285 et seq., R. S. 1881).

From the judgment of the board establishing the drain, the appellants appealed to the superior court of said county.. That court, on appellee’s motion, dismissed the appeal on the ground that no appeal to that court was authorized by law in such cases. This ruling is assigned as the only error complained of. The superior court of Allen county was created by the act approved March 5, 1877. Acts 1877, p. 43. Section 10 of that act fixes> the jurisdiction of that court. It provides that: “Said court, within and for said county, shall have original and concurrent jurisdiction with the circuit court in all civil cases, and jurisdiction concurrent with the circuit court in all cases of appeals from justices of the peace, boards of county commissioners, and mayors of [or] city courts in civil cases, and all other appellate jurisdiction in civil causes now vested in, or which may hereafter be vested by law in the circuit courts, and said court shall also have concurrent jurisdiction in all actions by or against executors, guardians and administrators.” The drainage act of 1881 was passed after the act just quoted. The section thereof authorizing an appeal is general, and does not designate the court to which the appeal is to be taken. Section 5671, Burns’ R. S. 1894 (4301, R. S. 1881). But it is contended that the provision in the latter part of the section and the next section show that the legislative intent was to confine the right of appeal to the circuit court. The provision in the same section is that the appeal bond is “to be approved by the auditor and the clerk of the circuit court,” and that the auditor is to “make a complete transcript of the proceedings, etc., * * * and certify the same, etc., * * * to the clerk of the circuit court.” The provision in the next section is that “If more than one party appeal, the judge of the circuit court shall order the cases consolidated and tried together, and the rights of each party shall be separately determined by the jury in its verdict.” Section 5672, Burns’ R. S. 1894 (4302, R. S. 1881). As the section of the act creating the superior court to some extent relates to the same matter involved in the provisions of the drainage act authorizing an appeal in such cases, the two statutes ought to and must be construed together. The provisions relied on in the drainage act as conferring exclusive jurisdiction on the circuit court do not expressly so provide. The provisions quoted at most only afford grounds for an implication, that the legislature might have" meant to confine the right of appeal to the circuit court. And yet the language employed is not necessarily in■consistent with the idea of allowing appeals to both courts where there is a superior court in the county. But the language employed in the superior court act is absolutely inconsistent with the idea that the circuit court alone had jurisdiction of such appeals. It gives the superior court “concurrent jurisdiction with the circuit court in all cases of appeals from * * * boards of county commissioners and mayors of [or] city courts in civil cases, etc.” It is suggested that a drainage proceeding under the drainage act is not a civil case, and therefore the act does not confer jurisdiction of appeals on the superior court. To this it may be answered that no other proceeding before the board of commissioners is a civil case in the strict sense, and yet appeals are authorized from boards of commissioners to the superior court. The phrases “civil cases” and “civil causes” as used in the section quoted were evidently used in contradistinction to criminal cases for the purpose of including all cases other than criminal cases. And then the section concludes with the sweeping clause: “and all other appellate jurisdiction in civil causes now vested in, or which may hereafter be vested by law in the circuit courts.” This language was evidently intended to vest all appellate jurisdiction in the superior court which was then vested in the circuit court except in criminal cases, and such jurisdiction as might thereafter be vested in the circuit court by law. Jurisdiction of appeals in drainage proceedings was thereafter vested by law in the circuit court, and by force of the two statutes such jurisdiction became vested in the superior court. To hold otherwise would be so to construe the two statutes as to give one of them no force whatever. And even though we should hold that the drainage act vested the jurisdiction of appeals in such proceedings in the circuit court alone, there is no reason why we should refuse to give effect to the jurisdiction section of the superior court act, providing that it should have all other appellate jurisdiction thereafter vested by law in the circuit courts. Therefore, we hold that the superior court had jurisdiction of the appeal. The superior court erred in dismissing the appeal. The judgment is reversed, and the cause remanded, with instructions to overrule appellee’s motion to dismiss the appeal, and for further proceedings not inconsistent with this opinion.