Stockton v. Ham

Moréis, J. Action by appellees against appellants, to establish a public drain. The cause was docketed, under the provisions of §3 of the act of 1907 (Acts 1907 p. 508, §6142 Burns 1908), on December 10, 1910, the last day of [629] the pending term of court. On that day, after the docketing of the cause, appellants filed a motion to quash the summons, which was correctly overruled. They also filed an affidavit for a change of judge under subd. 7, §422 Burns 1908, §412 R. S. 1881, and a verified motion in which it was alleged that one Osborne, the county surveyor, ex ojjicio drainage commissioner, should not be permitted to view or assess the lands described in the petition, “on account of interest, bias, and prejudice of said Osborne in said proceedings, and against these affiants, which bias and prejudice and interest these affiants say exist, as they are informed, and verily believe.” Neither of the last-mentioned motions was acted on at that time, and the cause was continued until the succeeding (February, 1911), term of court. At the next term, on February 25, 1911, the motion for a change of judge was stricken from the files, for the reason as shown by the record, that appellants have no ‘1 remonstrance on file. ’ ’ The proper exception was reserved. The motion in relation to the surveyor was overruled, and exception reserved, and over appellants’ objections, the petition was referred to the surveyor and two other drainage commissioners, appointed by the court, to make a report thereon, pursuant to §6142 Burns 1908, Acts 1907 p. 508. The drainage commissioners filed their report on March 4, and, on March 14, appellants filed what purported to be a remonstrance, in which it was merely alleged that the commissioners’ report was void because of the preceding action of the court in striking from the files, the motion for a change of judge, and the said motion in relation to the surveyor. On April 12, 1911, the regular judge, “by reason of the affidavit for change of venue from the court” theretofore filed by appellants, declined to further act in the cause?, and appointed a special judge who qualified and proceeded to hear and determine the matters in issue, and ordered the ditch established. Appellants filed a motion for a new trial, which sets out the motion for a change'of [630] judge, and that in relation to the surveyor, and the court’s action thereon, and assign the latter as reason for a new trial. . This motion was overruled, and proper exceptions reserved. Appellants filed no demurrer, objection or remonstrance, except as above indicated. 1. It is claimed by appellees that appellants were not harmed by the action of the court in overruling the motion relating to the surveyor, because no fact was alleged in the motion which challenged the competency of the surveyor to act as one of the drainage commissioners. The statute provides for “objection * * # as to why said drainage commissioner # * # on account of * * * interest in said work, or kinship to any person * * * should not act in the matter.” §6142 Burns, supra. It contemplates the averment of some traversable fact, showing interest or kinship. No such fact was stated, and the court did not err in overruling the motion. 2. The court did err in striking from the files the motion for a change of judge. The motion should have been granted, and, in appointing the drainage commissioners, after such motion was filed, the court acted erroneously, and, ordinarily, such action would be deemed prejudicial; but appellees contend that such error was harmless, because appellants never remonstrated against the construction of the drain, under the provisions of §6142 Burns, supra, nor did they remonstrate against the report of the commissioners, as provided by §6143 Burns 1908, Acts 1907 p. 508. Appellants evidently proceed on the theory that the error in refusing the change of judge, made all the subsequent proceedings in the cause void. In Smelzer v. Lockhart (1884), 97 Ind. 315, it was held that all proceedings had by a justice of the peace in a cause after the presentation of a proper affidavit for change of justice, were absolutely void, but this case was expressly overruled in Turner v. Conkey (1892), 132 Ind. 248, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. 251, and in the course of the [631] opinion it was said: “A wrong decision may constitute error, but it does not destroy jurisdiction. It is quite clear that the refusal of a judge of a superior court to call in another judge does not destroy jurisdiction, although it may be a palpable wrong entitling the injured party to relief in a direct attack. There is no valid reason why the same rule should not apply to an inferior tribunal.” See, also, Peters v. Koepke (1901), 156 Ind. 35, 59 N. E. 33. Here the attack is direct, and the error in refusing to grant the change will be deemed prejudicial in the absence of a contrary showing. 3. Appellants took no steps provided by the drainage act that would entitle them to any relief. The court had jurisdiction of the appellants and the subject-matter. Notwithstanding the palpable error of the court, in refusing to call another judge before the drainage commissioners were appointed, appellants filed no remonstrance against their report, which, if deemed injurious, they had the right to do. In Goodrich v. Stangland (1900), 155 Ind. 279, 58 N. E. 148, where a defendant in a drainage proceeding had filed no remonstrance within the statutory period, it was held not reversible error to overrule a motion for a change of judge, because “The appellant had no standing in court.” Section 8 of the act (§6148 Burns 1908, Acts 1907 p. 508) provides that no person shall be “permitted to take advantage of any error, defect, or informality, unless the person complaining thereof is directly affected thereby.” Appellants were not injured by any erroneous ruling of the court, as shown by the record, and rely entirely on mere technical defects, which this court, on appeal, must disregard. §§6148, 700 Burns 1908, Acts 1907 p. 508, §658 R. S. 1881. Judgment affirmed. Erwin, J., dissents.