Browne et al. v. Blood et al., 245 Ind. 447

Achor, J. — This is an appeal from a judgment in a statutory action for the review of a judgment, under authority of Acts 1881 (Spec. Sess.), ch. 38, §665, p. 240, being §§2-2604, et seq. The judgment in the action, of which appellants sought review, was made by the Gibson Circuit Court, in Cause No. 9927, captioned: “In re: Petition of Stephen A. Blood, Jr. et ah, for a Levee in Gibson and Posey Counties, Indiana.” Said judgment determined benefits, approved and confirmed assessments, and declared the proposed levee established.

The action in that proceeding was brought under the Drains and Levees Act [§27-801, et seq., Burns’ 1960 Repl.]. The judgment establishing the levee was entered on September 23, 1959. The complaint for the review of that judgment was filed on December 22,1959. Certain of the defendants in the action to review, who are now appellees in this appeal, filed a demurrer to appellant’s action to review. The demurrer was sustained. The plaintiffs-appellants refused to plead further and, therefore, judgment was entered for the defendants-appellees on the basis of the pleadings.

The memorandum in support of the demurrer relied upon the single ground that there was a defect of parties to the action. On appeal before this court, the appellees also assert as ground for affirming the judgment of the trial court, or for dismissal of the appeal, that the action to review the original judgment was not timely filed. This they may properly do, since the timely filing of an appeal from the judgment establishing the levee was jurisdictional. Under such circumstances, the law governing the time allowed for appeals has been stated by F. W. & H. Ind. Tr. & App. Pract., Vol.

I, p. 419, as follows: “If an action to review for errors of law is not filed until after the time for taking an appeal has expired, the plaintiff in the action to review may not appeal from an adverse decision. Plaintiff may appeal, however, if the action to review was filed within the time for taking an appeal. American Creosoting Co. v. Reddington (1925), 83 Ind. App. 365, 146 N. E. 761; In re: Boyer’s Guardianship, Rittenour v. Hess (1933), 96 Ind. App. 161, 174 N. E. 714; Talge Mahogany Co. v. Astoria Mahogany Co. (1924), 195 Ind. 433, 141 N. E. 50, rehearing denied 195 Ind. 433, 145 N.

E. 495. ...” Thus the question which this court must determine is whether the judgment must be affirmed, either (1) because the trial court properly sustained the demurrer in the present action, or (2) because the appellees did not timely file their action for review. We first consider appellees’ contention that appellants’ action is fatally defective because of a defect of parties. In this case there were 938 persons to whom benefits were assessed, or for whom damages were awarded in connection with these proceedings.

It is not necessary that we decide whether all of these persons were necessary parties to the action for review, and we do not decide this issue since the parties have provided us with no substantial authority with respect thereto. However, it does seem clear that all persons who were petitioners, or who were remonstrators, were necessary parties to the action to review and also in the appeal to this court from said action, since substantial costs had been incurred in connection with the establishment of the levee and they were all subject to a judgment for such costs, depending upon the outcome of the case.

There was a defect of parties in that all said petitioners and remonstrators were not named in the action. Acts 1881 (Spec. Sess.), ch. 38, §20, p. 240, being §2-219, Burns’ 1946 Repl.; 22 I. L. E. Parties, §32, p. 402, §34, p. 407. Admittedly, the record discloses that in the action to review appellants failed to name two of the petitioners in the original proceedings or to substitute any parties in their stead.

We conclude that the demurrer to the complaint was properly sustained because of a defect of parties. §2-219, supra; Acts 1911 [as amended], ch. 157, §2, p. 415, being §2-1007, Burns’ 1946 Repl.; Demarest v. Holdeman (1901), 157 Ind. 467, 62 N. E. 17; Eel River R. Co. v. State ex rel. (1900), 155 Ind. 433, 57 N. E. 388; Hutcheson v. Hanson (1951), 121 Ind. App. 546, 98 N. E. 2d 688.

Although the decision in this case could be made to rest upon the issue above determined, in order that the further issue raised by the appeal might be resolved, we do also consider whether this court can, with propriety, entertain this appeal by reason of the alleged belated filing of the action to review the original judgment. As above noted, the primary action in this case involved a statutory proceeding for the establishment of a levee.

The statute not only established new and substantial rights with regard to the parties involved, it also prescribed the procedure, and provided certain limitations with regard to appeals from judgments in such proceedings. Therefore, the limitations upon the time prescribed in the statute for taking such appeals, if valid, are controlling as the time limitation specified in the statute for appeals, insofar as such limitation in the special statute is more restrictive than that prescribed in general statutes or the rules of this court. F. W. & H. Ind. Tr. & App. Pract., Vol. II, §2473, p. 196; State ex rel.

Gary v. Lake Sup. Ct. (1947), 225 Ind. 478, 493, 76 N. E. 2d 254; State ex rel. Mar. C. Pl. Comm. v. Mar. S. C. et al. (1956), 235 Ind. 607, 609, 135 N. E. 2d 516. Admittedly, the action for review of judgment was not filed within the 30 day period specified in the above statute for the taking of appeals. That portion of the statute which prescribes the procedure, with respect to appeals from judgments of the trial court establishing such levees, is as follows: “ . . .

The order of the court approving and confirming the assessments and declaring the proposed work established shall be final and conclusive, unless an appeal therefrom to the Supreme • Court be taken and an appeal bond filed within thirty [30] days,...

In the event, however, the petition states that the petitioners accept the applicable provisions of the federal law to obtain federal aid, the order of court approving and confii-ming the assessments and declaring the proposed work established shall be final and conclusive from which there shall be no appeal, ...” Acts 1947, ch. 249, §2, p. 1003, being §27-803, at page 685, Burns’ 1960 Repl.

However, it is contended that all limitations in the act with regard to appeals are void, and, particularly, that the 30 day period prescribed in the act for the filing of appeals is inoperative for the reason that the act also contains an unconstitutional provision that there shall be no appeals in such proceedings if, as in this case, the petitioners accept the applicable provisions for federal aid. Therefore, it is contended that Rule 2-2 of this court, which permits the filing of appeals within 90 days, is controlling.

Specifically, it is contended that the following portion of §27-803, supra, of the Levees Act, pertaining to appeals, is unconstitutional, to-wit: “In the event, however, the petition states that the petitioners accept the applicable provisions of the federal law to obtain federal aid, the order of court approving and confirming the assessments and declaring the proposed work established shall be final and conclusive from which there shall be no appeal,...” We agree that the above quoted provision in the act, which purports to provide that the judgment of the trial court is conclusive and not subject to appeal, is unconstitutional.

Slentz et al. v. City of Fort Wayne et al. (1954), 233 Ind. 226, 118 N. E. 2d 484; Indianapolis Life Ins. Co. v. Lunquist (1944), 222 Ind. 359, 53 N. E. 2d 338; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N. E. 2d 399. However, we do not agree that that portion of the provision of the act which limits appeals to a period of 30 days, is also unconstitutional, merely because the provision above recited is unconstitutional. Where the provisions of

an act are severable, so that one provision which is declared unconstitutional can be deleted without destroying the general purpose or effectiveness of the act, the remaining portions will be upheld as valid. W. A. Barber Grocery Co. v. Fleming (1950), 229 Ind. 140, 96 N. E. 2d 108; Perry Tp. v. Indianapolis Power & Light Co. (1945), 224 Ind. 59, 64 N. E. 2d 296; Ettinger v. Studevent; Hole v. Dice (1942), 219 Ind. 406, 38 N. E. 2d 1000; 82 C. J. S., §94, p. 161.

In this case, the action for review of judgment was filed 90 days after the judgment establishing the levee; whereas, the statute prescribed the filing of an appeal from such a judgment to 80 days. Under these circumstances, for the reasons heretofore stated, this court will not disturb the judgment of the trial court. The judgment is, therefore, affirmed. Landis, C. J., Arterburn and Myers, JJ., concur. Jackson, J., dissents [without opinion].