Milhollin v. Thomas

7 Ind. 165

• Court: Indiana Supreme Court
• Decided: December 7, 1855
• Status: Published

Opinion

Gookins, J.

Milhollin and others presented their petition to the board of commissioners of Warren county, praying for the establishing of a county road. Viewers were appointed, who reported in favor of the proposed road. Thomas appeared and filed a remonstrance, on the ground that the road, if established, would not be of pub-lie utility; whereupon reviewers were appointed, who reported that the road would be of public utility. Thomas then made his claim for damages, because the road was located through his land; and on his motion, three freeholders were appointed, pursuant to the statute, who reported that he would sustain no damages by the opening of the road. Upon this report, the board of commissioners established the road, and ordered it to be opened, from which order Thomas appealed to the Circuit Court, where, on his motion, the proceedings were dismissed for want of jurisdiction. The petitioners prosecute this wait of error.

We are not informed by the bill of exceptions, nor by the defendant in error, in what respect there, was supposed to be a want of jurisdiction. The statute of 1849, p. 102, which was in force when these proceedings were had, expressly gives the board of commissioners jurisdiction of the opening of highways, and an appeal to the Circuit Court from their decisions. The jurisdiction of the subject then was complete.

The plaintiff in error informs us that three objections were taken to the proceedings, and as none others are pointed out, these alone will be noticed. One is that the proof of the putting up' of the notices of the intended application, and that the petition was signed by the requisite number of freeholders, was made upon oath administered by the county auditor. The statute of 1843, p. 189, sec. 52, gives the auditor power to administer all oaths necessary to the performance of the duties of his office. He is ex officio clerk of the board of commissioners, who, when in session, are a Court of record, with power to administer oaths. There is no doubt of his authority to administer the oaths in question; and if it were otherwise it would be no failure of jurisdiction.

Another objection is stated to have been, that the petition did not designate the owners and occupants of the lands through which the contemplated road would pass, as required by the statute. Acts of 1849, p. 103, sec. 11. The petition did specify the names of the owners, but did not state who occupied the lands. We do not know that the lands were occupied. They may have been vacant. If there is any presumption on the subject, it is that they were occupied by the owners. And besides, the defect, if any, was subject to amendment, either before the commissioners or in the Circuit Court, where it stood as an original case. It was no failure of jurisdiction.

J. R. M. Bryant and R. A. Chandler, for the appellants. R. C. Gregory and R. Jones, for the appellee.

Another objection is stated to have been, that the notice of the intended application for a road was not signed by the petitioners. The notice contained in the transcript appears to have been signed by Milhollin, one of the petitioners. If it' was necessary that it should be signed by any of them, one was enough; and, besides, Thomas appeared, and remonstrated, and had assessors appointed on his own motion, and he could not object to the want of notice.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.