Robinson v. Board of Commissioners ( 1871 )

ON PETITION FOR A REHEARING.

Worden, C. J.

The appellant has filed an earnest petition for a rehearing in this cause, and we have given it a careful consideration, but have arrived at the same conclusion as before. Some further observations, however, may not be out of place.

The statute, as has been seen, allows no one to appeal from the decisions of the board of commissioners, without the required affidavit, unless he be “a party to the proceeding.”

There is no reason why the phrase, “ a party to the proceeding,” should not be construed in its ordinary legal meaning, and be held to embrace such persons only as are parties in a legal sense, and who have been made or have become such in some mode prescribed or recognized by the law, so that they are bound by the proceeding. The statute is quite liberal in giving any other person aggrieved the right of appeal on filing the affidavit.

Now, the question arises whether Robinson was a party to the proceeding in the legal sense of the term, so as to be bound thereby. If so, how did he become such? It is clear that he was not the mover in the proceeding, and did not occupy a position similar to that of a plaintiff in an action. If the proceeding was in its nature ex parte, Robinson was no party and not concluded by it. Assuming that the proceeding was of an adversary character, then, to make Robinson a party, he must have been brought in in some mode prescribed by law, or he must have voluntarily appeared to the proceeding. The record does not show that he became a party in either of these modes; or, in other words, that he was aparty at all. The record does show, to be sure, that “now here, upon being sent for, comes A. L. Robinson, and states to the board that he has no time to make the report required of him.by the board, nor to complete his investigations.” Being "sent for” was no summons or notice to appear to an adversary proceeding, nor was his coming in and making the statement imputed to him by the record any appearance to such subsequent proceeding. The statement imputed to him had no necessary connection with the subsequent action of the board, nor does it appear that Robinson was advised of the intended proceedings. “There should be some formal entiy, or plea, or motion, or official act, to constitute an appearance; and this should be of record, and tried by the record.” Scott v. Hull, 14 Ind. 136.

A. L. Robinson and Parrett &■> Wood, for appellant."

It is quite clear to our minds that as Robinson was not made a party to the proceeding in any legal mode, and as he did not appear thereto, he was not a party thereto in any legal sense, nor is he bound thereby as a party.

The petition for a rehearing is overruled.^*

* Original opinion filed April 20th, 1871. Opinion on petition for a rehearing filed December zzd, 1871.