Penn v. Ducomb

Roll, J. In 1929 certain land owners filed a petition with the board of commissioners of St. Joseph County for the reconstruction and repair of what was known as the Coquillard ditch located in said county, which ditch had been established by the board of commissioners of said county in 1881. It appears that a remonstrance to said petition to reconstruct and repair said ditch was filed by some of the land owners affected by said proposed project. A hearing was had before the board and on the 30th day of September, 1930, the remonstrance was sustained on the second, fourth, fifth, sixth, and seventh causes therein assigned and specifically found that the proposed work would not be of public utility and that the expense would exceed the benefits derived therefrom and dismissed the petition at the cost of the petitioners. The petitioners filed a motion for a new trial which was overruled. An appeal was granted to the circuit court upon filing of an appeal bond to the approval of the auditor. The appeal bond was filed and approved by the auditor and the auditor was ordered to file a transcript of the proceedings with the county clerk. The above record bears date of October 27, 1930. The auditor’s transcript of the proceed *135 ings before the board of commissioners was filed with the clerk of St. Joseph Circuit Court on June 17, 1935. In February, 1936, the drainage commissioners appointed by the board of commissioners filed a supplemental report which received the approval of the court. No record appears that the drainage commissioners were ever requested or ordered to submit a supplemental report. On April 9, 1936, the date upon which the supplemental report of the drainage commissioners was approved, the court entered an order establishing the ditch, and authorized the drainage commissioners to receive and accept bids for the proposed work. The record discloses that on May 27, 1936, Phillip R. Gilliam, drainage commissioner, filed his construction bond, which was approved by the court. On June 23, 1936, Elmer R. Knapp, as principal, and the American Surety Company of New York, as surety, filed his bond as the contractor on said proposed work, which bond was approved by the court. On September 15, 1936, four separate petitions to strike out the supplemental report and to dismiss the appeal were filed. These petitions were filed by Jacob Rothschild and sixteen others; the second was filed by Delbert Shimp and eighty-one others; the third was filed by Alexis and Joseph A. Coquillard, and the fourth by the Grand Trunk Railroad Company. The reasons assigned in each of these petitions were the same. They challenged: (1) The jurisdiction of the court of said proceeding; (2) that the court did not at any time refer the petition back to said drainage commissioners for an amended report or supplemental report; (3) that the court did not at any time set aside the report filed before the board of commissioners, and at no time did the court fix a time or place for the drainage commission to meet or a time for them to file their report. *136 On their motion to dismiss they urged that the record showed that the board of commissioners entered judgment dismissing the petition on October 27, 1930, and an appeal was prayed and granted to- the circuit court and an appeal bond was filed on that day, but the transcript of the proceeding before the board of-commissioners was not filed with the clerk until June 17, 1935. This presents the decisive question on this appeal. These proceedings were instituted before the board of county commissioners of St. Joseph County by virtue of §6194 Burns Ann. St. Supp. 1929. The right to an appeal to the circuit or superior court is given by §6194 Burns Ann. St. Supp. 1929, Acts 1927, ch. 60, §1, p. 156, 158 and gives such court upon appeal the same power to hear and determine such matter as if it originated in such court. This part of the statute provides as follows: “If any landowner shall be dissatisfied with the judgment of such board, he shall have the right to appeal therefrom in the same manner that appeals are taken from other decisions of such board; and the court to which such appeal is taken shall have the power to hear and determine such matter as if it originated in such court.” This section further provides (p. 157) : “Appeal from the action of the county board on the report of the drainage commissioners may be taken to the circuit or superior court of the county within the time and in the manner provided in case of appeal from the action of the circuit court or superior court to the supreme court, and a like appeal, taken within time and in like manner, may be had to the supreme court from the decision of the circuit or superior court on the appeal from the board.” Section 6174 Burns Ann. St. 1926, Acts 1917, ch. 90, §1, p. 292, 296, in part provides: “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 su *137 preme court be taken and an appeal bond filed within thirty (30) days, to the approval of the court or the clerk in vacation. A transcript of the record on such appeal and all bills of exceptions shall be filed in the office of the clerk of the supreme court within sixty (60) days after the filing of the appeal bond.” It will thus be seen from the provisions of the second quoted excerpt from the statute that appeals from the actions of the board to the circuit or superior courts are to be taken within the time and manner as appeals are taken from the circuit or superior courts to the Supreme Court. The time and manner of taking an appeal from the action of the circuit or superior courts is found in the quoted excerpt from §6174, supra. This statute is clear and definite in its terms. One of the necessary steps in perfecting an appeal from the circuit or superior court to the Supreme Court is to file an appeal bond within thirty days to the approval of the court or the clerk in vacation. Another necessary step in perfecting the appeal is to file a transcript of the record on such appeal in the office of the clerk of the Supreme Court within sixty days after the filing of the appeal bond. In this case the attempted appeal from the action of the board of commissioners was the sustaining of the remonstrance filed to the report of the drainage commissioners. From this action appellants attempted to appeal to the circuit court of St. Joseph County. They filed their appeal bond within the time allowed, but did not file a transcript of the proceedings in the office of the clerk of St. Joseph County for more than four years after the appeal bond was filed. These steps are jurisdictional and unless complied with, the court never obtained jurisdiction of the subject matter and there is no case on appeal. This question has been decided by this, court in a great num *138 ber of decisions and seems definitely settled. See Brady v. Garrison (1912), 178 Ind. 459, 460, 99 N. E. 738, and cases there cited. The question here presented was presented to this court in the case of Kosta v. Zickmund et al. (1929), 200 Ind. 605, 165 N. E. 433, and it was held in that case that there was no error by the trial court in dismissing the appeal on the ground that the transcript of the proceeding before the board of county commissioners was not filed within sixty days after the appeal bond was filed. Having determined that the circuit court acquired no jurisdiction of the cause, and that it was not error to dismiss the appeal, other questions presented by appellants’ brief need not be discussed. Judgment affirmed.