Board of Drainage Commissioners of Sweet Water Drainage District v. Brown

Hines, J. (After stating the foregoing facts.) The plaintiff asserts that the drainage court which established Sweet Water drainage district did not have jurisdiction of any lands which are not situated on Beaver Ruin Creek, Sweet Water Creek, and Jackson’s Creek, up to and including the first Monday in March, 1916; and that any order it may have granted affecting lands owned by him, located outside the district described and on another and larger stream, is absolutely void. The alleged invalidity of such order is based upon the grounds (1) that the drainage court had no jurisdiction of lands not situated upon the named creeks up to the first Monday in March, 1916; and (2) that it affected lands of plaintiff located outside of the district described and on another and larger stream. These grounds are without merit. It is true that the body of lands described in the petition, and sought to be embodied in the drainage district, did not embrace any lands of plaintiff, nor any lands located on Yellow River; but these facts do not render invalid and void the final judgment of the drainage court establishing the district, which, in its final shape and with its final boundaries, takes in the lands of the plaintiff and of others located on Yellow River. The district proposed and the district established may have different boundaries. Land in the proposed district may be left out of the district as it is finally created. Lands embraced in the petition for its creation may be eliminated, and other lands not designated therein may be put in the district in its final shape and form. The drainage act expressly declares that “The board of viewers shall proceed to examine the land described in said peti [427] tion, and other land if necessary to locate properly such improvement or improvements as are petitioned for along the route described in the petition, or any other route answering the same purpose if found more practicable or feasible, and may make surveys such as may be necessary to determine the boundaries and elevation of the several parts of the districts.” They are further required to report “ whether or not all the lands that are benefited are included in the proposed drainage district.” Acts 1911, pp. 108, 110; Park’s Code, § 439 (c). This law plainly contemplates that lands, not in the body of lands described in the petition for establishment of a drainage district, may be embraced in the drainage district as finally created by the judgment of the drainage court, which is authorized to determine and fix the boundaries of the district. Park’s Code, § 439 (f); Acts 1911, pp. 108, 112. So in this case the viewers reported that other lands not included in the proposed drainage district and including those of plaintiff and others located on Yellow Eiver would be benefited by the improvement proposed. They made a map of the drainage district thus enlarged, which showed these other lands, including that of the plaintiff, located on Yellow Eiver as embraced therein. Thus the drainage court acquired jurisdiction of these other lands. The court then fixed a day when this report of the viewers would be further heard and considered; and the notices of this hearing were duly published and given as required by the drainage act. Acts 1911, pp. 108, 111, 112; Park’s Code, §§ 439 (d), (e). No objections were filed by the plaintiff to this report, nor to the inclusion of his lands on Yellow Eiver in the district as finally established. He became thus bound by the judgment establishing this drainage district. Almand v. Board of Drainage Commissioners, 147 Ga. 533 (94 S. E. 1028). This judgment of the drainage court is not void for lack of jurisdiction over these added lands, nor from the fact that these lands are located on a larger and longer stream. On Jan, 3, 1916, the drainage court passed an order which recited that plaintiff and others owning land in said drainage district had not signed the petition for its establishment, and which directed these parties to appear before said court on the first Monday in March, 1916, to answer the petitioners’ complaint, or [428] in default thereof the court would proceed as to justice should appear. Plaintiff alleges that he was not served with a copy of said order, and had no notice thereof. For this reason, he says he is not bound by the judgment of the drainage court establishing this drainage district. This position is not well taken. Plaintiff was. one of the petitioners for the establishment of the proposed drainage district. He and his copetitioners instituted the proceedings for its creation. They put the ball in motion. He was bound to know that the drainage court might not create the district which they sought to have established, but on the contrary might add lands to or take lands from the proposed district. It was his duty to follow up and watch the proceedings, and see that no action was taken which might prejudice him. Filing of the petition brought the plaintiff into court, and no notice to him of any subsequent action in the case was necessary to bind him by the judgment in this proceeding. Miller v. Georgia Railroad Bank, 120 Ga. 17 (47 S. E. 525). The plaintiff further attacks the judgment establishing this drainage district, upon the ground that the same was obtained by fraud. The drainage court passed an order calling upon certain parties to show cause on the first Monday in March, 1916, why they should not be included in this drainage district. It seems that summonses were served on them for this purpose. Among these parties were G. B. Wright, L. B. Greer, and George M. Brown. On the above date and before the court convened, parties interested in the creation of said district, including its proponents and opponents, held a meeting, George M. Brown and L. B. Greer attended this meeting. Plaintiff was not present. Greer was the spokeman for the owners of lands situated on Yellow Biver, in objecting to their lands being included in said district. The chairman of the meeting referred this matter to the attorney present and representing the petitioners for said district. This attorney announced that these owners of lands on Yellow Biver would not be included in the proposed district; and the chairman then announced that the Yellow Biver people were excused. On his return home, George M. Brown informed plaintiff that landowners on Yellow Biver. were not included in said district, and had been dismissed from the proceeding. Thereafter plaintiff was never notified that his lands on Yellow Biver had been included [429] in said district, and gave the matter no. further attention until fi. fas. were issued against him for assessments for 1919 and 1920, and levied upon his bottom lands on Yellow Eiver for the cost of said improvement. It does not appear that plaintiff or any other one of these owners brought the matter of the exclusion of landowners on Yellow Eiver to the attention of the drainage court. It does not appear the drainage court took any action in dismissing these landowners from the proceeding for establishing said district. It does not appear, that the attention of the court was called to this matter in any way by anybody. We do not think that these facts showed such fraud as renders this judgment void as to the plaintiff. Certainly after the judgment establishing said district, and the issuing of bonds to cover the cost thereof and. their due validation by the proper court, the above facts constitute no such fraud as will render the judgment creating said district void as to the plaintiff. Diligence on the part'of the plaintiff certainly required that he should have called the attention of the drainage court to this matter* and that a proper order should have been taken striking the Yellow Eiver landowners from the proceeding. Certainly the action of that court on this matter should have been invoked by plaintiff. If the court had passed the necessary order striking them from the proceeding, that would have been the end of the matter. If the drainage court had refused to pass such order, then the plaintiff could have excepted thereto and had the matter reviewed. While fraud authorizes a court of equity to relieve against a judgment obtained by imposition (Civil Code of 1910, § 4629), and while a court of equity will set aside a judgment of a court of competent jurisdiction for fraud, it will only do so when the complainant is free from negligence and fault (§ 5965). The facts of this case do not show that the plaintiff was free from negligence or fault; and for this reason a court of equity will not relieve him against the judgment establishing this drainage district. The plaintiff further sets up that he signed the petition for the establishment of said district only after he was assured that he would not be affected thereby, and that his signing would be an accommodation to his copetitioners and would aid them in securing its establishment. These facts do not furnish sufficient reason why a court of equity will grant the plaintiff relief against [430] the judgment granted in this ease. A litigant will not be permitted to take inconsistent positions in legal proceedings.' A party is always bound by a ruling which he invoked, and by a judgment in his favor which he procured or aided in procuring. Butler v. Tifton &c. R. Co., 121 Ga. 817 (49 S. E. 763). He can not now make a contention which is inconsistent with the position taken by him in the petition brought to establish this district. He will not now be heard, especially after the rights of third persons have intervened, to say that he did not intend what he asked as one of the petitioners who brought the proceeding to create this district. The law charges him with knowledge of the fact that one who handles judicial fire may be burnt. The plaintiff alleges that his lands on Yellow River have not been benefited by this improvement, but on .the contrary have been injured thereby. This was a matter of defense before the drainage court (Acts 1911, pp. 108, 112; Park’s Code, § 439 (f)), and of appeal from a judgment adverse to plaintiff (Acts 1911, pp. 108, 114; Park’s Code, § 439 (h)). It is too late to make this defense after judgment has been rendered by the drainage court establishing the district. Almand v. Board of Drainage Commissioners, supra. The rulings in the other headnotes do not require elaboration. So we reach the conclusion that the plaintiff did not make a case, under his pleading and proofs, which would authorize the court to grant the injunction prayed for by him; and that the court below erred in granting an interlocutory injunction. Judgment reversed. All the Justices concur.