Peabody v. Sweet

Blackford, J. This was a case of a petition to the board of county commissioners of Noble county, filed at the June term of the board in 1845. The object of the petition was to obtain a change of a certain road situate in said county. The board, upon the filing of the .petition, appointed three persons to view the road, and report their proceedings to the then next term. At the next term of the board, to-wit, at the September term, 1845, a majority of the viewers reported in favor of the proposed change of the road. At the same term, a remonstrance against the change was filed with the board, and three other persons were thereupon appointed to review the road, and report to the next term. At the next term of the board, to-wit, at the December term, 1845, the said reviewers reported that the proposed change of the road was practicable and of public utility, but that it was not expedient. The board thereupon ordered the change to be made, and that the persons remonstrating should pay the costs. Jerome Sweet, one of those who had signed the remonstrance, appealed to the Circuit Court. At the March term, 1846, of the Circuit Court, the report of the reviewers, made at the December term, 1845, of the board of commissioners, was set aside with costs to the appellant, and the cause re.manded to the board for further proceedings. The board of commissioners at the December term, 1846, again appointed persons to review said road. These reviewers, at the next term of the board, reported in favor of the change of the road; and the board thereupon ordered the change to be made. H. Cooper, for the plaintiffs. W. M. Clapp, for the defendant. The said Sweet again appealed to the Circuit Court. At the trial in the Circuit Court at the September term, 1848, on this second appeal, the petitioners .gave in evidence the original petition filed with the board of commissioners in 1845, and the report of the reviewers made to the board in 1847. There was no other evidence. The Circuit Court dismissed the suit at the costs of the petitioners. The first objection made to these proceedings is, that the Circuit Court, at the September term, 1846, set aside the report of the reviewers made at the December term, 1845, of the board of commissioners. There was no bill of exceptions taken on that occasion, and we are not informed of the ground upon which the Court acted. We must presume, therefore, that the report was rightly set aside. The other objection is, that the Circuit Court erred, at the September term, 1848, in dismissing the suit. It was necessary, under the statute, before applying to the board for the appointment of viewers of the road, to notify the public of the application, either by posting up notices thereof in three public places for at least twenty days, or by publishing the notice in a newspaper of the county. R. S. pp. 331, 327. In the present, case there was no proof of any notice whatever of the application; and the want of such proof was a sufficient reason for dismissing the suit, Per Curiam. The judgment is affirmed with costs.