Johnson v. Mullinix

Elliott, J.

The appellees commenced this proceeding by-filing a petition for the establishment of a ditch under the act of April 21st, 1881. The board of commissioners found, against the petitioners and rendered judgment in favor of the-appellant who was a remonstrant. Within thirty days from the time the judgment of the commissioners was announced, theappellees filed an appeal bond and asked an appeal to the circuit court. The appellant did not appear in the case in the circuit court, and judgment was rendered upon default. From that judgment he prosecutes this appeal, insisting that it is erroneous; because there was no summons issued and served upon him.

We think that the act of 1881 makes special provisions for appeals, and that appeals are governed by those provisions,, and not by the general statute governing appeals from decisions of the board of commissioners. Acts 1881, p. 416, sections 17 and 18. This act does not, as is evident from its; language, require that any summons shall be issued, and no-good purpose can be subserved by causing the issuing and. service of summons in cases where one of the parties takes-the appeal; on the contrary, such a course would add greatly to the expense of the proceedings and cause needless delay.. It is reasonable to require parties to take notice of the provision giving thirty days in which to appeal and to ascertain whether the party having the right prescribed by statute has-exercised it. This rule obtains in analogous cases, and there is no reason why it should not apply here.

Judgment affirmed.