Drinkwatter v. Eikenberry , 224 Ind. 84 ( 1946 )

DISSENTING OPINION I agree with the majority opinion that the appointment of the county surveyors of Cass and Fulton counties as viewers for the proposed repair of a ditch, while probably an erroneous act, was not such an error as affected the jurisdiction of the court. Since appellant did not object to this erroneous action in the lower court, no question can be presented thereon, on appeal.

However, I am unable to agree with the majority opinion on the remaining propositions decided, for the reason that I believe the court below acted without jurisdiction of the subject matter, in adding to the Eugene Mills ditch, 29,200 feet in length, sought to be repaired by the petition, four other ditches not asked to be repaired, the aggregate length of which was 36,306 feet or 124+% in extent of the original plans and specifications of the ditch asked to be repaired. The majority opinion is in error in stating that the petition requested the repair of "Tributary No. 2" of the Eugene Mills Ditch. There is no such request in the petition.

It is admitted by the majority opinion and likewise by the parties to this appeal that this is a special statutory proceeding to alter and repair a drain, brought under paragraph (1) of subsection (a) of § 27-120, Burns' 1933 (Supp.). It is not brought under § 27-104, et seq. Burns' 1933 which provide the procedure for the construction and for the reconstruction of a drain. It is therefore, not a petition for the construction or reconstruction of a drain. It is a petition to alter and repair an existing drain.

I think the majority opinion is in error in holding that the provisions of the act authorizing the construction and reconstruction of ditches, are applicable to a proceeding under the alteration and repair statute so as to authorize the surveyor in his report to add additional ditches which the petition does not ask to be altered or repaired, and exceeding in extent more than 10 per cent. of the original plans and specifications of the ditch asked to be repaired. I have at least two reasons for this belief. First, that part of the statute relied upon for this holding reads as follows:

"The form and contents of such petition and other provisions thereof, so far as applicable, shall conform and be similar to the petition provided in this act relative to original petitions for construction of drains; as well as the provisions of this act relative to notice of docketing thereof, objections thereto, and the reference of said petition to the surveyor and viewers, the findings of the viewers, the filing of the surveyor's report, and other proceedings shall, so far as applicable, conform and comply to the proceedings in this section specified for the repair, change or extension of any such drain or the installation, construction and maintenance of control dams therein."

§ 27-120, supra, Clause (c). (Our italics).

It will be noted that in § 27-120, supra, the only authorization of a surveyor's report is as to the filing thereof — and not as to its contents — and it is expressly provided that it must be filed so as "to conform and apply to the proceedingsin this section specified for the repair, change or extension ofany such drain . . ." (Our italics). Therefore, the provision in § 27-105, for the addition of arms or branches by the surveyor's report in the original construction statute is noticeably excluded from a proceeding under the repair statute. There is likewise no authorization for a remonstrance to the surveyor's report and no reference thereto in the alteration and repair statute under which this proceeding is founded. We have no right to blend § 27-104, et seq. with § 27-120, supra. For its own reasons, which I think were entirely proper, the General Assembly separated them. The parties, in this action, have proceeded under the repair statute and it is a duty of the courts to see that the entire proceeding is kept reasonably within the terms of this statute. It is only the applicable provisions of § 27-104, et seq. that can possibly apply in a proceeding instituted to alter and repair a drain under § 27-120, supra, and these apply only to "the form and contents of such petition and other provisions thereof." The provision for the addition of "arms and branches" in the surveyor's report not only is not applicable, but it is clearly omitted in the statute last quoted above.

Second, the statute under which the action is brought expressly forbids the excessive extension of the drain to be repaired, as allowed in the majority opinion, by clause (b) paragraph (2) thereof reading as follows:

"No petition filed in conformity with the provisions of paragraph (1) of subsection (a) of this section shall contemplate the increasing of the tile, the average deepening and widening or the extension more than ten (10) per cent of the original plans and specifications."

The word "contemplate" as used in this section is inclusive. An apt definition of it by Webster's unabridged dictionary is: "to purpose or intend." Therefore, the petition in this case can not purpose or intend the extension more than 10 per cent of the original plans and specifications. The above quoted statute is controlling in all proceedings brought under this alteration and repair section. It was enacted in 1933, amended in 1937, ch. 162, § 2 p. 853, and this is the only case brought under it that has come to this court. Decisions under former drainage statutes not containing the above quoted limitation, relied upon in the majority opinion are wholly inapplicable.

It is an established principle of law that if a statute creates a new right, and provides a valid remedy for its enforcement, the remedy thus given must be pursued to the exclusion of all others. The parties can not by contract or acquiescence, vary the procedure provided by the statute. 1 Am. Jur. 411, § 12; Storms v. Stevens (1885), 104 Ind. 46, 47, 48, 3 N.E. 401; Shipman, Exr. v. Shipman, Gdn. (1934),99 Ind. App. 445, 451, 192 N.E. 849. Limitations placed on a right thus created become a part of the right conferred and compliance with them is made an essential to the assertion of the right itself. 1 Am. Jur. 410, § 11; Bowen v. Illinois C.R. Co. (1905), 136 Fed. 306, 70 L.R.A. 915. It is a rule of universal application that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed by it, orthe jurisdiction will fail to attach, and the proceeding will becoram non judice and void. French v. Willer (1888), 126 Ill. 611, 18 N.E. 811, 2 L.R.A. 717, 718. A court has no power to do anything which is not authorized by law and when its procedure is defined by a special statute, its judicial functions are essentially controlled thereby, and the remedy is confined to the mode prescribed, and the procedure so provided excludes resort to another or different procedure. Lowery v. State Life Ins. Co. (1899), 153 Ind. 100, 104, 54 N.E. 442; Ryan v. Ray (1885),105 Ind. 101, 106, 4 N.E. 214; Bartlett v. Manor (1896),146 Ind. 621, 625, 45 N.E. 1060.

In Lowery v. State Life Ins. Co., supra, at pages 102 and 103, Judge Hadley, speaking for this court, has correctly stated the applicable law thus:

"A court is a creature of the law, instituted for the determination of questions of law and fact under defined restrictions and limitations. The territorial limits of its power, the subjects and classes over which its power may be exercised, the terms upon which it may put its power into action, are as firmly and clearly established as the right to adjudicate when authorized to do so; and, though a court of general jurisdiction, it must proceed in the manner and upon the conditions imposed by the law, and an assumption of jurisdiction over a subject or a person, upon terms denied by the law, is as unwarranted and futile as the assumption of jurisdiction without its territorial limits. A departure from the limits and terms of jurisdiction is usurpation of power that imparts no validity whatever to its judgments and decrees. Works, § 10, p. 28, and authorities cited. Hence, we have the generally accepted rule that, when a court proceeds without jurisdiction of the subject-matter, its judgment is wholly void; . . .

"A void judgment implies no judgment at all, and its non-existence may be declared upon collateral attack, upon suggestion of an amicus curiae, or by the court at any time upon its own motion. . . . And the duty is not affected by the acquiescence or agreement of the parties to submit to the jurisdiction, since jurisdiction that cannot be acquired without consent cannot be bestowed with it." Cases cited.

This statement of the law is quoted with approval in State v.Gorman (1908), 171 Ind. 58, 64, 85 N.E. 763. See also Moore v. Moore (1923), 81 Ind. App. 169, 173, 174, 135 N.E. 362;Hutts v. Martin (1893), 134 Ind. 587, 592, 33 N.E. 676;McFadden v. Ross (1886), 108 Ind. 512, 516, 517, 8 N.E. 161.

A judgment or decree may be valid in part because within the jurisdiction of the court, and void in part for want of jurisdiction. Kline v. Kline (1886), 57 Iowa 386; 42 Am. Rep. 47; Belford v. Woodward (1895), 158 Ill. 122, 134, 29 L.R.A. 593, 599.

Section 27-120, supra, is the empowering statute in this case. Within its limitations the court, the viewers, the surveyor and the parties are empowered to act. Beyond its limitations all are alike powerless. The court below has jurisdiction of the action within the definitions and limitations of this statute. Beyond this it is without jurisdiction. Clause (b) of paragraph 2 is clearly a limitation in this proceeding. It must be honored by everyone having to do with the action. In original actions to construct or reconstruct drains a surveyor may include other drains than those petitioned for, to effectively drain the territory involved,because he is authorized so to do by § 27-105 of the empoweringstatute. In a proceeding to alter and repair a drain under § 27-120, supra, he may not do so, because of the limitations contained in Clause (b) of Paragraph (2) of the empowering statute. In so far as the finding and judgment of the court below seeks to give force and effect to the surveyor's report ordering the alteration and repair of drains in excess of 10 per cent of the original plans and specifications of the ditch petitioned to be repaired, it is coram non judice and void. I do not contend that the court lost jurisdiction of the entire case as erroneously suggested in the majority opinion, but I do maintain that it was without jurisdiction to increase the extent of the ditch to be repaired beyond 10 per cent of the original plans. It seems to me that the reasoning in the majority opinion is tainted by the erroneous assumption that unless the lower court lost jurisdiction of the entire case, then, no matter how far it strayed from the jurisdiction granted it by the empowering statute, everything attempted to be adjudicated is valid. That a court may exceed its jurisdiction in the rendition of a judgment seems quite elementary and when it does so the excess, in every instance that has come to my attention, has been held to be void.

This jurisdictional question was not raised below by remonstrance. Probably it might properly have been so raised although the empowering statute does not mention a remonstrance to a surveyor's report. Appellants' motion to amend the remonstrance so as to raise this question was overruled, probably because the court believed it came too late, but it raised the jurisdictional question. The error sought to be presented was not merely an error within the power of the court to commit, but was an error of absence of power to act at all — an error of usurpation. It has been frequently held as stated inSouthern R. Co. v. Town of French Lick (1913),52 Ind. App. 447 at page 452, 100 N.E. 762, that:

". . . In all special statutory enactments the procedure prescribed by the statute must be followed, but when not inconsistent with the procedure so prescribed, the practice authorized by our civil code may be followed. Evans v. Evans (1886), 105 Ind. 204, 5 N.E. 24, 5 N.E. 768; Weakley v. Wolf (1897), 148 Ind. 208, 220, 47 N.E. 466; In re Griffin (1904), 33 Ind. App. 153, 69 N.E. 192."

See also C.C.C. St. L.R.R. Co. v. Schuler (1936),211 Ind. 172, 5 N.E.2d 975.

I think it was proper to present the question of lack of jurisdiction of the subject matter by the motion to strike out the surveyor's report, and by the motion for finding and judgment for remonstrators presented at the end of petitioners' evidence, since each motion specifically called the court's attention to its lack of jurisdiction, beyond the limitations of the statute involved. These alleged errors were presented to the trial court, they are presented to this court by appellants' assignment of errors 2, 3 and 5. Since this was an error of assumption of jurisdiction of the subject matter — a jurisdiction which the court did not have inherently, and which not only had not been granted to it by law, but had been expressly withheld from it by an affirmative statute, the error may be presented at any time, in any manner, and if not presented it is our duty of our own motion to present it, and to take such action as will correct it. The fact that in each of the motions mentioned above the appellants asked for greater relief than they were entitled to — the dismissal of the action for want of jurisdiction — is no legal reason for refusing to grant the relief to which they were lawfully entitled. Stockton v. Lockwood (1881), 82 Ind. 158, 162, 163; Mandlove v. Lewis (1857), 9 Ind. 194, 195, 196;Hunter v. McCoy (1860), 14 Ind. 528; Anderson v. Ackerman (1883), 88 Ind. 481, 486, 487. No action or lack of action of appellants can waive this error as to jurisdiction of the subject matter. Since appellants' motion to strike out the surveyor's report directly raised this question in the court below it should have been sustained. I think the cause should be reversed with instructions accordingly.

Note. — Reported in 64 N.E.2d 399.