Illinois Central Railroad v. McAdoo , 198 Ky. 247 ( 1923 )

Opinion of the Court by

Judge Clay

Reversing.

On June 14, 1918, W. W. McAdoo and others in-stituted a proceeding’ in the Graves county court to establish a drainage district in that county. Several months later the proceeding was transferred and ordered to be •carried on under the provisions of the act of 1918. While numerous landowners were made parties, it. does not appear that the Illinois Central Railroad Gompany and the Chicago, St. Louis & New Orleans Railroad Company, whose interests were affected by the establishment of the ditch, were brought before the court. However, the two railroad companies appeared in the' proceeding for the first time on November 22, 1920, and filed general and special demurrers to the petition. On November .27, 1920, an order was entered overruling the demurrers and establishing the district. The railroads excepted to the order and were granted an appeal, which, they prosecuted to the circuit court within ten days from the rendition of .the judgment. On motion of the petitioners the appeal was dismissed, and from that order this appeal is prosecuted.

As the railroad companies were'not before the court until they filed their demurrers, and as the appeal was taken within ten days from the rendition of the. judgment overruling the demurrers and establishing- the drainage district, it results that the appeal was prosecuted in time, and that being true, the court should not have dismissed the appeal, but should have taken jurisdiction and have passed on the questions raised by the demurrers.

Judgment reversed and cause remanded for proceedings consistent with this opinion.