Wabash Railway Co. v. Todd

Spencer, J. The matters involved in this appeal have their origin in a proceeding instituted in the circuit court of Wabash county on September 13, 1909, — 75 — by William A. Jackson and others to procure the establishment of a certain public drain in that county in accordance with the provisions of the drainage act of 1907. Acts 1907 p. 508, §6140 et seq. Burns 1914. In the report of the drainage commissioners, made in said proceeding, it was recommended that, “at a point where this proposed drainage crosses the right of way of the Wabash Railroad Company, there be constructed a bridge under the road bed thereof, which said bridge shall be 24 feet long and 12 feet high with an opening for the passage of the water of the above dimensions. And that said bridge shall be constructed solely at the cost of the Wabash Railroad Company.” The railroad company filed a remonstrance to the report of the commissioners on the grounds, among others, “that a bridge of the size and dimensions mentioned in said report at the place in question is wholly unnecessary,” and, “that said report is illegal in its recommendation requiring said Wabash Railroad Company to construct the bridge therein mentioned at its own cost, because it is not competent, under the laws of the State of Indiana, to make such requirement of a railroad company.” On a trial of the above remonstrance the court found specially that a bridge seventeen feet long and eight, feet high- would be sufficient to accommodate the flow of water in the proposed drain and concluded as a matr ter of law that the railroad company should be required to construct such a bridge across its right of way and on the line and grade of the proposed drain at its own expense. From a judgment rendered on the trial court’s conclusions of law, and which established the drain in accordance with the report of the drainage commissioners as thus modified, the railroad company appealed to this court and the judgment was here affirmed. Wabash R. Co. v. Jackson (1911), 176 Ind. — 76 — 487, 95 N. E. 311, 96 N. E. 466. Subsequently, on January 10, 1916, appellee, as superintendent for the construction of the established improvement, filed a petition in the Wabash Circuit Court in which he set out, in substance, the facts above stated and alleged further: “That said drain was sold by a former superintendent of the same and constructed so far as possible by the purchaser, but that said railroad company has never yet constructed said bridge, as ordered by this court, and has always refused so to do, although said cause was decided by the Supreme Court on November 22d, 1911, and the completion of said drain is and has been delayed by reason of the failure of said Company, and its successor, to act.” The petition further alleges in detail the- refusal of the Wabash Railroad Company, and its successor, the present appellant, to build the bridge in question, and asks for “an order of this court, fixing a definite time in which said Wabash Railway Company shall construct said bridge, or culvert, in accordance with the order heretofore had and entered in this cause.” Appellant’s motion to dismiss the above petition and its demurrer thereto were each overruled, and said rulings are now challenged by the assignment of errors in this court. To treat these assignments collectively, it is the contention of appellant, in substance: (1) That this is an action in mandamus and is not authorized under the drainage laws of the State; (2) that, even though a proper proceeding in such cases, an action in mandamus can be brought only in the name of the State oh the relation of the party in interest; (3) that appellee, as superintendent for the construction of the drainage improvement, has no authority under the law to maintain this action, either individually or as a relator; (4) that the trial court had no jurisdiction of the subject-matter of the alleged action; and (5) that appel — 77 — lant' is under no legal obligation to construct the bridge in question and may not, therefore, be mandated to do so. 1. The latter contention rests, in part, on an incorrect construction which appellant has placed on the judgment announced by the trial court in passing on the remonstrance filed by the railroad company in the original drainage proceeding, which judgment was thereafter affirmed by this court on appeal. As we have already noted, one ground of that remonstrance expressly challenged the right of the circuit court to require the railroad company at its own expense to construct the bridge which was recommended by the report of the drainage commissioners. The court overruled this contention and concluded as a matter of law that the railroad company should be required to construct the bridge in question. In this connection, see: Lake Shore, etc., R. Co. v. Clough (1914), 182 Ind. 178, 185, 104 N. E. 975, 105 N. E. 905; Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 91 N. E. 939, 93 N. E. 273; Cincinnati, etc., R. Co. v. City of Connersville (1907), 170 Ind. 316, 83 N. E. 503. The judgment rendered on the conclusions of law operated to establish the drain and to order the construction of the same in accordance with the modified report of the commissioners. That order necessarily placed on appellant and on its predecessor in title the duty to build the bridge, which should form a part of the improvement, and it was expressly affirmed on appeal. 2. The judgment which established the drain and ordered its construction was final in character and terminated the adversary proceedings, but the action thereafter remained on the court docket for the p'urpose of carrying such judgment into effect and to that extent, at least, the circuit court retained its original jurisdiction over the subject-matter (Per — 78 — kins v. Hayward [1892], 132 Ind. 95, 99, 31 N. E. 670), and as appellant voluntarily appeared and filed an answer to the petition herein there can be no question as to the jurisdiction over the parties. The petition was not an original action and was in no sense an action in mandamus. It sought only the entry of an order supplementary to, and fixing, the time within which appellant should comply with, a previous order in the proceeding and thus invoked the exercise of an inherent power which a court possesses to make such orders and to issue such writs as may be necessary and essential to carry a previous judgment into effect and render it binding and operative. 7 R. C. L. 1034, §63, and authorities cited. 3. Furthermore, it was a petition which appellee had a right to file. As superintendent for the construction of an improvement established by order of the Wabash Circuit Court, in which the proceeding was still pending, he was acting as an officer of that court and was charged with the duty not only of making such reports to the court as should show the condition of the work as it progressed but also of asking such further orders and instructions as should prove necessary for its proper completion. This duty exists independent of statutory provision but, impliedly at least, it is within the contemplation of §6144 Burns 1914, supra, which directs the work of the construction superintendent. There was no error in overruling either appellant’s motion to dismiss the petition or its demurrer thereto. 4. To meet appellee’s petition on its merits, appellant filed four paragraphs of answer, of which the first, a general denial, was subsequently withdrawn and the other three were struck out on motion of appellee. The ruling on this motion presents the remaining questions for our consideration. The issues — 79 — presented by the second, third and fourth paragraphs of answer have been disposed of in part by our conclusions above stated. They embody appellant’s further contention, however, that the drain in question has not yet been completed up to thb point where it is to cross the railroad right of way and cannot be so constructed without the making of an additional assessment against the owners of property to be benefited thereby; that appellant is ready to construct the required bridge whenever the same is made necessary for the safe passage of its trains over the new ditch and Will afford proper facilities at any time for the construction of the improvement across its right- of way. 5. 4. It is true that a motion to strike out will not perform the office of a demurrer for want of sufficient facts, but if a pleading is so clearly bad that it cannot be amended, or if, in the case of an answer or reply, it amounts only to a general denial, a judgment will not be reversed on account of the irregular procedure in sustaining such a motion. Wilson v. Tevis (1915), 184 Ind. 712, 111 N. E. 181; Weideroder v. Mace (1915), 184 Ind. 242, 111 N. E. 5. The matters above suggested by appellant’s answer, if sustained by proof, would not defeat appellee’s right to the relief asked in his petition, although they might affect the terms and conditions of the" court’s order. In any event, they were provable under the general denial which was on file at the time the motion to strike out was sustained, and the error, if any, in the ruling was harmless. Judgment affirmed.