Peters v. Griffee

Elliott, J. The petition of the appellants for a ditch was filed on the 18th day of March, 1884, and, on the 7th day of the following April, was docketed and referred to the drainage commissioners. On the second day of June of that year, the report of the commissioners was filed, and on the first day of September following, the appellees moved to dismiss the proceedings. To this motion the appellants filed an answer alleging, in substance, that, on the 11th day of March, 1884, the petitioners posted notices in three of the most public places in the county; that, on the 18th day of that month, they filed their petition, and noted thereon the 1st day of April as the time for hearing it; that, on that day, the petitioners appeared, and, as the answer alleges, “ made it appear to the court that notice had been given;” that, no objection being entered, an order was made fixing the time and place for the meeting of the commissioners; that the commissioners made a report which was approved; that the contract for constructing the ditch was let to Charles McKee and others; that work was done thereunder to the value of $2,000, and a great amount of the assessments had been collected prior [122] to the filing of appellees’ motion. It is further alleged that the appellees had actual notice of the filing of the petition and of the view and inspection of the lands; that they made no objection until after the work had been done and a great part of the assessments collected. It is quite clear that if the attack made upon the proceedings were a collateral one, the notice would be sufficient to sustain the proceedings. McMullen v. State, ex rel., 105 Ind. 334; Young v. Sellers, 106 Ind. 101; Pickering v. State, etc., 106 Ind. 228; Brosemer v. Kelsey, 106 Ind. 504. But we can not regard the present attack as a collateral one, for we think an attack by motion filed in the same cause must be deemed a direct one. While we regard the attack as a direct one, still, we are of opinion that the court erred in dismissing the pro-' ceedings. There was here notice, although a defective one, of the proceedings, and there was actual knowledge of the filing of the petition and of the proceedings under it, and also knowledge that money was expended on the faith that the proceedings were valid. .We think that under these facts it must be held that appellees are not in a condition to defeat the proceedings on the ground that the notice was insufficient. If there had been no attempt at all to comply with the statute as to notice, the case might possibly be different, but here there was an attempt to comply with the statute, and some notice was given. The authorities sustain the doctrine that under such a state of fact as that exhibited in the answer, acquiescence in the validity of the proceedings will be presumed. Kellogg v. Ely, 15 Ohio St. 64; City of Burlington v. Gilbert, 31 Iowa, 356 (7 Am. R. 143); Erie R. W. Co. v. Delaware, etc., R. R. Co., 21 N. J. Eq. 283; Thomas v. Woodman, 23 Kan. 217 (33 Am. R. 156); Easton v. New York, etc., R. R. Co., 24 N. J. Eq. 49; Traphagen v. Mayor, etc., 29 N. J. Eq. 206;, City of Logansport v. Uhl, 99 Ind. 531, 540 (50 Am. R. 109); Muncey v. Joest, 74 Ind. 409, see pp. 413, 414; Flora v. Cline, 89 Ind. 208. [123] Filed Oct. 30, 1886. This case is plainly distinguishable from Vizzard v. Taylor, 97 Ind. 90, for there the land-owner could not have had no.tice, for he was not a party to the proceeding. Judgment reversed.