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Pittsburgh, etc., R. Co. v. Machler.

proceeding, can not take advantage of a failure to notify others unless it appears--which is not claimed—that such failure will prevent a construction of the drain. Grimes v. Coe, 102 Ind. 406; Poundstone v. Baldwin, 145 Ind. 139, 144; Cooper v. Shaw, 148 Ind. 313, 316; Steele v. Empson, 142 Ind. 397, 405; Carr v. Boone, 108 Ind. 241. Besides, it does appear that all interested persons and corporations had such notice as the statute declares sufficient. The record shows that a notice "setting forth the route of said drain as described in the petition, the fact of the filing and pendency of such petition and when the same shall be docketed”, addressed to all persons who appear by the petition to be owners of lands affected by the proposed drain, was served personally upon some and posted as against all at the courthouse door and in three public places in each township near the line of the ditch; and presuming, as we must, in favor of the right action of the court, we must assume, in the absence of anything to the contrary, that all persons and corporations not personally served were non-residents of the county. This was "sufficient to give the court jurisdiction over all the lands described therein, and power to fix a lien thereon.” $85623, 5624 Burns 1901. We therefore conclude that the court had jurisdiction of the subject-matter and person of appellant.

II. The State has the undoubted right to authorize the improving of a drain across the right of way of a railroad company by deepening and widening a natural channel, as in this case, and such an act is not a violation of the State or federal Constitution. $5153 Burns 1901, Spec. 5; Lake Erie, etc., R. Co. v. Cluggish, 143 Ind. 347; Evansville, etc., R. Co. v. State, 149 Ind. 276; Baltimore, etc., R. Co. v. Board, etc., 156 Ind. 260.

III. Appellant assigns forty-five reasons for a new trial. The first five count on the overruling of its motion to set aside the court's general finding upon its remonstrance, and the failure of the court to make a special finding as re

Pittsburgh, etc., R. Co. v. Machler.

quested. There is no merit in any of these reasons. Indeed, we are puzzled in finding any ground for either of them for the record clearly shows that the court made and filed a special finding in compliance with its request, and that there was no general finding in appellant's case other than the summing up noted above

Except two, the other reasons relate to the action of the court in the admission and exclusion of proffered testimony. Over appellant's objection, two witnesses were permitted to testify that the proposed drain would carry off the water from the side ditches of appellant's railroad that then had no outlet, and as to the general sufficiency of the drain to convey the water away from the vicinity of appellant's railroad, and thus make unnecessary another culvert or bridge in the neighborhood, then being maintained by appellant. All this tended to show benefits, and was competent.

One Rosencranz, as an expert civil engineer, experienced in railroad construction and maintenance in the Kankakee valley, wherein the drain in controversy is situate, was permitted to give the relative cost of the maintenance of a railroad bed made of muck soil when saturated by seepage from standing water and when dry and free from standing water; also the relative value of the property under the two conditions. This testimony also tended to establish benefits, and was properly admitted.

The other reasons for a new trial all relate to the exclusion of testimony offered by appellant. All of these reasons are unavailing, because in each instance, except two unimportant ones, the exception was improperly reserved. The record is uniformly in this condition. The question is propounded by appellant. The petitioners object upon stated grounds. “Objection sustained. Exception reserved.” After which an offer to prove is made. It has been many times decided that this sort of record presents no question. Gunder v. Tibbits, 153 Ind. 591; Whitney v. State, 154 Ind. 573; Rinkenberger v. Meyer, 155 Ind. 152; Wilson v.

Turner v. Board, etc.

Carrico, 155 Ind. 570; Mark v. North, 155 Ind. 575 ; State, ex rel., v. Cox, 155 Ind. 593; Miller v. Coulter, 156 Ind. 290.

There is no ground for argument on the sufficiency of the evidence to sustain the finding.

Judgment affirmed.

158 166 160 13 158 166 161 480 161 561

TURNER v. BOARD OF COMMISSIONERS OF ELK

HART COUNTY.

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(No. 19,678. Filed March 12, 1902. ] COUNTIES. — Contracts. Attorneys' Fees.-Appropriation by County Council.-An action cannot be maintained by an attorney for services rendered in assisting in the prosecution of a criminal cause when appointed for that purpose by the court in which the case was pending, where it is not shown that there was an existing appropriation made by the county council to pay for such services. From Elkhart Circuit Court; J. D. Ferrall, Judge.

Action by Perry L. Turner against the board of commissioners of Elkhart county for services rendered as an attorney at law in the prosecution of a murder case. From a judgment for defendant, plaintiff appeals. Affirmed.

C. W. Miller and J. S. Drake, for appellant.
L. W. Vail, for appellee.

Monks, J.-Appellant brought this action against the appellee to recover for services rendered by him as an attorney at law in assisting the prosecuting attorney in the prosecution of a murder case in the Elkhart Circuit Court. It is alleged that he was appointed by said court in May, 1900, to assist the prosecuting attorney in the prosecution of said murder case. A demurrer for want of facts was sustained to the complaint, and, appellant refusing to plead further, judgment was rendered against him.

Said services were rendered by appellant after the taking effect of what is known as the county reform law. Acts 1899, p. 343. The county reform law creates a county council, and requires estimates to be submitted to that body

Turner v. Board, etc.

of all expenses payable out of the county treasury. The county council is authorized to make appropriations for said purposes, and also to fix the tax levy out of which the same can be paid. Acts 1899, p. 346, $$15, 20.

Section 27 (Acts 1899, p. 352) provides that "No court, or division thereof, of any county, shall have power to bind such county by any contract, agreement, or in any other way, except by judgment rendered in a cause where such court has jurisdiction of the parties and subject-matter of the action, to any extent beyond the amount of money at the time already appropriated by ordinance for the purpose of such court and for the purpose for which obligation is attempted to be incurred, and all contracts and agreements, express or implied, and all obligations of any and every sort attempted beyond such existing appropriations shall be absolutely void.”

It is evident that, unless there was an existing appropriation made by the county council for the purpose of paying for such services when appellant was appointed and rendered said services, such appointment and the rendition of said services created no liability against the county. The power of a court, body, or person, to bind a county, or create a liability against it, for the services of an attorney in assisting the prosecuting attorney in the prosecution of criminal cases, is within the control of the legislature. Appellant was bound to take notice of the law on this subject. Under such circumstances, he has no ground to recover therefor from the county. Board, etc., v. Pollard, 153 Ind. 371, 375.

As it was not alleged that there was an existing appropriation made by the county council to pay for such services as those alleged to have been rendered by appellant, the complaint was insufficient, and the court did not err in sustaining a demurrer thereto.

Judgment affirmed.

State, ex rel., v. Elliott.

THE STATE, EX REL. MINTURN, v. ELLIOTT ET AL.

(No. 19,795. Filed March 12, 1902. ) ELECTIONS. ---Primary Election Law.–The act of 1901 (Acts 1901, p.

495) known as the primary election law does not govern nominations for office which are required to be filled by the voters of a district composed of more than a single county. From Marion Circuit Court; E. Daniels, Special Judge.

Action by State on relation of Joseph A. Minturn to compel Charles N. Elliott, chairman of the republican central committee of Marion county and the members of the board of primary election commissioners to place the name of relator on certain ballots as a candidate for senator of the joint senatorial district composed of the counties of Marion and Morgan. From a judgment denying relator the relief demanded, he appeals. Affirmed.

J. B. Sherwood, for appellant.
F. A. Joss and J. W. Noel, for appellees.

JORDAN, C. J.-Action by the State, on the relation of Joseph A. Minturn, to obtain a mandamus to compel appellee, Charles N. Elliott, chairman of the republican central committee of Marion county, Indiana, together with his coappellees, members of the board of primary election commissioners, to place the name of relator on certain ballots as a candidate for senator of the joint senatorial district composed of the counties of Marion and Morgan, which ballots were to be used by the voters of the republican party of said Marion county in voting for candidates for various offices at a primary election to be held in said county of Marion on March 14, 1902, under and in pursuance of an act of the legislature approved March 11, 1901, entitled "An act for the purification of primary elections,” etc. Acts 1901, p. 495. Separate demurrers by the appellees were sustained to the petition and alternative writ, and the court rendered its judgment denying the relator the relief which he de

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