Ardery v. Dunn

Myers, J. On November 21, 1910, the engineer and superintendent in charge of the construction of a free gravel road in Union Township, Union County, filed their sworn [226] statements with, the auditor, showing the completion of the road. Appellant Ardery and another, resident taxpayers of the township, on December 5, 1910, filed their sworn statement with the auditor setting out that the road had not been completed according to the plans, plats, profiles and contract, and stating in what particulars it had not been completed. Dunn, the contractor for the road, filed his motion to strike out the exceptions, which motion the board of commissioners sustained. On appeal to the circuit court, Dunn renewed his motion to strike out which motion was sustained, and on his motion judgment was rendered dismissing the appeal. The errors assigned are in sustaining the motion to strike out appellants’ exceptions to the reports of the engineer and superintendent, and in dismissing the appeal. The question raised is whether the statement, or exception, of appellants was filed in time, it being insisted by appellees, .(1) that it should have been filed within ten days before the first day of the term; (2) that the statement was not filed with the auditor or the board or any constituted authority, ten days before the first day of the regular meeting of the board, and the latter was without jurisdiction. 1. The statute under consideration (§7733 Burns 1908, Acts 1905 p. 521, §82), provides that when the superintendent and engineer in charge of the construction of the road believe that a whole or a part of the road has been completed, they shall each file their sworn statement to that effect, with the auditor of the county, and “the board of county commissioners shall not act on such proof of the completion of such road or roads or part thereof, until the said sworn statements have been filed with the auditor at least ten days before the first day of any regular term of said board, and if, within said ten days, any taxpayer interested in such improvement shall file his sworn statement with the auditor that such road or roads or part thereof has not been completed,” and provides for a hearing on the’ [227] issue of fact thus raised, and an appeal. Appellees rely chiefly on the case of Board, etc. v. Zollman (1910), 45 Ind. App. 184, 90 N. E. 649, but the case does not decide either that the statement of the taxpayer cannot be filed on the first day of the term, or that it must be filed within ten days after the statements of the engineer and superintendent are filed. Nor were these questions determined in that case, for the reason that the statement of the taxpayer was filed on the second day of the regular term, and not within ten days prior to the first day of which we take judicial notice, although such fact does not affirmatively appear in the opinion in that case. Appellee cites eases from other jurisdictions, but we have a number of decisions in this State which have been followed by the profession, and we see no reason for changing the rule. The rule for computation of time governs the question. §1350 Burns 1908 §1280 R. S. 1881. The first construction placed on the word before, in statutes of this character, is under the statute of 1852 (2 R. S. 1852 p. 194), providing that summons shall be served “ten days * * * before the first day of the term, ’ ’ referring to the term of court, and it was held that summons served on September 21, and October 1, being the first day of the term, was good, evidently counting the first day of the term as the tenth day. Martin v. Howell (1857), 8 Ind. 501. The rule as thus laid down has been strictly adhered to, and it has been repeatedly held under similar statutes, that, where praeess is to be served, or an instrument filed a stated number of days before the first day of the term, the first day of the term is to be counted as the last day of the period stipulated. Lee v. Shull (1909), 172 Ind. 309, 88 N. E. 501; White v. Prifogle (1896), 146 Ind. 64, 44 N. E. 926; Flynn v. Taylor (1896), 145 Ind. 533, 535, 44 N. E. 546; Conwell v. Overmeyer (1896), 145 Ind. 698; Baltimore, etc., R. Co. v. Flinn (1891), 2 Ind. App. 55, 28 N. E. 201; Womack v. Ahern (1857), 9 Ind. 6; Martin v. Reed (1857), 9 Ind. 180; [228] Blair v. Davis (1857), 9 Ind. 236; Blair v. Manson (1857), 9 Ind. 357; Dugdale v. Ryan (1857), 8 Ind. 529. The statute of 1852, with the construction then placed upon it, was reenacted in 1881, and we are bound to accept such reenactment as an endorsement of that construction. Upon the insistence that the statement of the taxpayer must be filed within ten days after the reports of the engineer and superintendent are filed, it is clear that “within said ten days” means the period during which the reports must be on file before action thereon by the board. We have a corollary proposition with regard to liquor remonstrances, in which it has been held that it means the period during which the remonstrance must be on file. Behler v. Ackley (1909), 173 Ind. 173, 177, 89 N. E. 877; White v. Prifogle, supra; State v. Gerhardt (1896), 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313; Sexton v. Goodwine (1904), 33 Ind. App. 329, 68 N. E. 929, 70 N. E. 999. We conclude therefore that the statement, or exception, was filed properly on the first day of the term. The judgment is reversed, with instructions to the court below to overrule appellees’ motion to dismiss the appeal, and the motion to strike out appellants’ exception, and for further proceedings not inconsistent with this opinion. Note. — Reported in 104 N. E. 299. See, also, (1) 37 Cyc. 222. As to computation of time, see 7 Am. Dec. 250; 46 Am. Rep. 410: 78 Am. St. 372.