Robinson v. Board of Commissioners

37 Ind. 333

• Court: Indiana Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinions

Downey, J.

At the May term, 1869, the Board of Commissioners made and entered of record the following order: “Nowhere, upon being sent for, comes A. L. Robinson, and states to the board that he has no time to make the report required of him by the board, nor to complete his investigations ; and the board, in consideration of the course pursued by the said Robinson, and his failure to report the result of his examination to this board, ordered that all actions brought by the said A. L. Robinson for, and on the part of the county be and are hereby discontinued for the present. The board require of said Robinson a statement of the results obtained by his investigations; also a thorough examination of the reports filed by the county auditor; and the said Robinson is granted further time, viz., until.the first day of June, 1869, to perform said work and make his report to this board; and the county auditor is hereby directed to furnish a copy of the foregoing to said Robinson and to the clerk of the court.”

Without filing any affidavit setting forth that he had any interest in the matter decided, and was aggrieved by the decision, Robinson appealed from this order of the board to the common pleas.

In the common pleas, a bill of exceptions informs us, the defendant by counsel moved to dismiss the appeal for the reason that, that court had no jurisdiction to try and determine the same, to which the plaintiff in person objected; and before the said motion was decided and while the same was pending, the plaintiff offered to prove by two members of the said board of commissioners, that the order of the said board appealed from herein was never passed by the said board, and that the same was entered of record in the records of said board, by the auditor of said county, without the consent or approbation of said board, which proof the court refused to hear, but dismissed the appeal at the costs of the plaintiff. He excepted.

The statute provides that “from all decisions of such commissioners there- shall be allowed an appeal to the circuit or common pleas court, by any person aggrieved; but if such person shall not be a party to the procéeding 'such appeal shall not be allowed, unless he shall file in the office of the county auditor his affidavit setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest.” 1 G. & H. 253, sec. 31.

We cannot say that the appellant was a party to the proceeding referred to, in any legal sense. It is true that he is named in the order. But that alone does not make him a party. The county had the, undoubted right, so far as anything is made to appear, to order the dismissal of the suits brought by the appellant for and on the part of the county. We are of the opinion, then, that without an affidavit filed, showing the appellant had an interest in the matter decided, and that he was aggrieved by such decision, -as required by the section of the statute above referred to, the court committed no error in dismissing the appeal.

The judgment is affirmed,with costs.