Crapo v. Hazelgreen

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. It is well settled by the decisions of the supreme court of Indiana that the averments of the bill to the effect that notice was not given according to law, or that no notice whatever was given, are insufficient and unavailing as ground for the relief sought. The circuit court in which the proceedings were had being a court of general powers, the presumption in favor of its jurisdiction in the particular case, notwithstanding it was a special statutory proceeding, will be conclusive against a collateral attack upon its judgment. When, therefore, it was sought to annul or to restrain proceedings to enforce the judgment in question on the ground that it is void for want of notice, it was not enough to allege that notice was not given according to law, or that no notice whatever was given. The bill should have stated what the record of the judgment assailed shows in respect to notice, so that it could be determined whether, upon the face of the record, the proceedings were valid; every fact, where the contrary did not appear, being presumed in favor of the jurisdiction. As stated in Long v. Ruch, 148 Ind. 74, 47 N. E. 156, “the circuit court being one of general jurisdiction, the presumption is that it had jurisdiction especially as to parties, until the contrary is made to appear.” To the same; effect, see Kleyla v. Haskett, 112 Ind. 506, 14 N. E. 387; Bailey v. Rinker, 146 Ind. 129, 45 N. E. 38. Containing as it does no averment of what the record of the proceedings in question shows on the subject, the bill before us does not present the question whether, for any reason, the notice actually given or attempted to he given, as shown by the record, was so far defective in respect to Mandell as to subject the proceedings to collateral attack by his executor. The bill does not aver that the lands of Mandell were occupied by tenants, nor that the occupants were not served with notice, nor does it state what the record shows concerning notice to occupants. For all that is alleged, the record may show a Unding that the lands were unoccupied, or that there were occupants on whom proper notice had been served. In all these respects, in the absence of proner averment to the contrary, the presumption is in favor of the jurisdiction. If the bill had set out just what the record shows on the subject, whether evidence that there were; tenants upon the land who Were not given notice would have been admissible, and what the effect of the proof offered, would have been important questions; but, on the bill as framed, they do not arise. It remains, therefore, to consider only whether, as contended, no valid notice could have been given to Mandell, because he [322] was not a party to the ’ proceedings, and no action was pending against him, upon which notice could be based. Mandell had no land within four miles of the drain proposed in the petition. He was not named, nor any of his land described, in the petition. He was named nowhere in the proceedings, except in the notice served by the sheriff on persons not here concerned,- and in a like notice, copies of which were posted at the court-house door in Lake county, and at three places along the line of the ditch; and while the ditch as relocated is shown by the report of the commissioners to pass over three tracts of his land, without benefit or injury thereto, each tráct is described as owned by Josephus Collett, a former owner, though the proper transfers had been made, and the title of record and the entries on the tax duplicates had long been in Mandell’s name. The first section quoted of the statute requires that the petition shall describe the lands to be affected, by forty-acre tracts, or other subdivision specified, “and give the names of the owners thereof, if known, and if unknown shall so state”; but “such petition,” it is further provided, “shall be sufficient to give the court jurisdiction over all lands described therein and power to fix a lien thereon, if they are described as belonging to the person who appears to be the owner according to the last tax duplicate.” The next section, after prescribing the notice to be served or posted, authorizes a reference to the drainage commissioners, who are empowered to determine the method of drainage, the termini, route, and location of the work, to assess the' benefits or injury to each separate tract of land to be affected, and to make report to the court. In respect to lands embraced in the report, but not named in the petition, it is added that the court shall fix the time for hearing the report; that the petitioners, at their own cost, shall give 10 days’ notice to the owners of such lands of the filing (and of the time of hearing) of such report, in the same manner as is therein required to be given of the filing and docketing of the petition; that the court shall continue the hearing of the entire report until such notice has been given; and finally that “the same proceedings shall be had in regard to such report as if all the lands mentioned therein and the owners thereof had been named in the original notice of the filing of the petition.” It is to be observed that many requirements of the statute in respect to lands described in the petition are not expressly repeated in respect to lands first mentioned in the report of the commissioners. In the petition, for instance, the description must be by forty-acre tracts, while in respect to lands of the other class the only requirement is that the commissioners shall “assess the benefits or injury as the case may be to each separate tract of land to be affected.” In the petition, too, the name of the owner, if known, must be given, and if, not being known, it is given according to the last tax duplicate, it will be enough to confer jurisdiction; but there is no express requirement that the commissioners shall report the names of the owners, if known, or according to the tax duplicate, if unknown, of lands included in the report which were [323] not included in the petition. So, too, written notice is required to be given to resident owners or occupants of lands described in the petition, and to nonresident owners by posting written or printed notice; but, in respect to lands first mentioned in the report, nothing is said of occupants or of tax duplicates, the provision being simply that notice shall be given to the owners of such lands of the filing of the report in the same manner as is therein required to be given of the filing and docketing of the petition. Other differences might be pointed out. The argument of the appellant, in substance, is that the whole statute must be construed together; that, by fair construction, the report of commissioners is the foundation of the action, as regards new parties, constituting the declaration or complaint against them, as the petition, is the eonrplaint and declaration, and the foundation of the action against those named in it, and hence the report must show the same facts concerning new parties as the petition must show against original parties,' — that is to say, “it must describe their lands by forty-acre tracts or less and must name the owner of each tract, or if the name be unknown it must be so stated and [each tract] must be alleged to be the land of the person in whose name it stands upon the last tax duplicate or transfer book of the county.” In fortification of this argument, it , is urged that but one mode is recognized in Indiana for the commencement of an action by one person against another; that section 316, 1 Burns’ Kev. St. 1894, provides that a civil action shall be commenced by filing a complaint, and causing the summons to be issued, or publication to be made in proper cases; that the; statute by which these proceedings were authorized was intended to be, and is, in harmony with the general provision, the petition being required to name the parties concerned, and it being permitted to bring in new parties, when found necessary, by the report of the commissioners, operating for that purpose as an amendment of the petition, and therefore required, by fair implication, to show the facts essential to jurisdiction over the new parties, which the petition was required to show in order to establish jurisdiction over the original parties. In the opinion of the supreme court of Indiana in Young v. Wells, 97 Ind. 410, expressions were used which lend support to this construction; but the question was not directly involved in the case, and the opinion can be said to contain no more than an intimation on the subject. Counsel for appellee, on the contrary, after emphasizing the differences between the provisions of the statute touching lands described in the petition and those first brought in by the report of the commissioners, insist that the commissioners “do not deal with the parties, but with the lands to be affected; that, when they undertake to name the owners of the tracts of land reported.by them as affected, they go beyond what the statute contemplates, and that portion of their report may be rejected as surplusage”; that when, in this instance, they made the mistake of naming Collett, instead of Mandell, as owner, it was an unauthorized act, for which the petitioners car [324] rying on the proceedings were not responsible, and should not suffer; that it is not the business of the commissioners to examine tax duplicates and transfer books for the names of owners, but simply to determine and describe the lands to be affected, and that only when the report is made does it become the business of the petitioners to find out, by an examination of the records, as in the first instance, who are the owners of the new lands brought into the proceedings by the commissioners’ report, and give them notice, and that a notice which names an owner whose land has been so described, when given as required by the statute, makes the owner a party to the proceedings, though he be not otherwise named; and that the finding of the court that such notice had been given is conclusive against collateral attack, even though the notice was in fact defective. An argument in support of this construction of the statute is drawn from the phrase, “the lands mentioned therein and the owners thereof,” found in the last clause of the section. That expression, it is said, assumes that the lands are mentioned, as before they are required to be named, in the report, but puts the owners in a different category, since they need not be mentioned in the report, but must, of course, be named in the notice. It is urged further, and Dukes v. Working, 93 Ind. 502, is cited in support of the proposition, that a drainage proceeding is not a civil action, but a special statutory proceeding, which is not so much in personam as in rem, and that a petitioner does not have to search for the owner of lands affected, outside of the tax duplicate and record of transfers. This argument does not seem to us to be convincing. While, in a general sense, it is doubtless true that a’ petitioner, who has no knowledge or notice of the actual ownership, need not look beyond the tax duplicate, he is required by the terms of the statute to take cognizance of an owner in possession; and we are of opinion that the word “occupant,” as used, includes a tenant or licensee occupying in subordination to the owner, and that notice is required to be given to an occupant, not simply that he may have an opportunity to defend his own right, but .also for the benefit of the owner, to whom it was assumed by the lawmaker that-the occupant, if in possession under the owner, would communicate the notice served upon himself. The better construction of the statute in respect to jurisdictional requirements seems to us to be that the name of the owner — actual, if known, or as shown by the tax duplicate if not known — shall be set out in the report of the commissioners in connection with each tract of land included which had not been described in the petition. The report in this case was prepared upon that theory, under the supervision, presumably, of the petitioners or their counsel. If it was not the business of the commissioners to search the duplicates or other sources of information for the names of owners, as it certainly was their duty to find out the proper description of lands to be affected, it was the right and duty of the petitioners, who instituted and had control of the proceedings, to see that the names were furnished; and, if a mistake in that respect was made, the responsibility for the error was theirs, and they should not escape the consequences at [325] the expense of an adversary, who confessedly had no actual notice of what it was proposed to do, and had the right to rest in the assurance that his property could be taken or affected by such a proceeding only by due process of law. To say that there was due process of law in this case, it seems to ns, would be little less than a mockery. . ’ ' If regard be had to the evidence beyond the averments of the bill, the record of the proceedings in the drainage case, and the other proofs offered, which in no sense contradicted anything stated in that record, show that the notice required by the statute was not given. There was no /hiding by the court that notice in any form was served upon or given to Mandell. When the report of the commissioners was filed, a finding was entered to the effect that the report brought in new parties, and it was ordered that notice should be given to them as required by the statute. But Mandell was not one of the parties referred to. His name was. not in the report, and was not mentioned in the finding; and the further finding, entered some days later on proof of service, was “that all new parties who were brought in by the report of the commissioners * * have been duly and legally served with notice of the filing of said report and that the same was- set for hearing,” etc. That finding does not include Mandell, because he was not brought in or made a party by the report. The entry proceeds to set out the evidence on which the finding was made, consisting of the sheriff’s return, which does not mention Mandell, and the affidavits of Bachman and Fancher; showing that copies of a notice, addressed to Josephus Collett, Edward B. Mandell, and nine others named, were posted at the door of the court house in Lake county, and at three places in three townships named, near the line of the proposed ditch. It is the evident meaning of this entry that there was no other proof of notice than that stated, and, as that does not show compliance with the statute, it might be said that the record itself shows that the requisite notice was not given, even if it were conceded that a mere description of la,nd in the report of commissioners, coupled with the name of another as owner, is sufficient to justify judgment against the true owner upon proof of posting the notices required by the statute, and that, too, when there were tenants upon the land to whom no notice w*as given. The order appealed from is reversed, with direction to reinstate and continue in force pending the suit the restraining order which was dissolved. Judge Hit 0 WALTER participated in the hearing, but not in the decision, of this case.