#### Stockton et al. *v.*Pancoast et al.

[No. 21,945.

Filed April 19, 1912.

Rehearing denied June 26, 1912.]

1. *Drains.—Proceedings to*Improve.—Petition.—Jurisdiction.— *Arrest of*Judgment.—While proceedings to improve or otherwise change an established drain, brought under §0174 Burns 190S, Acts 1907 p. 50S, §19, must be brought in the court which originally ordered the drain established, the petition need not aver what court made the order establishing it, and the question of jurisdiction is not raised by a motion, in arrest of judgment, where the petition is silent as to what court made such original order, p. 205.

2. *Drains.—Proceedings to*Improve.—Jurisdiction.—Petition.— *Ruling on Motion in Arrest of*Judgment.—Where a petition for the improvement of a certain main drain and an arm connecting therewith, brought under the provisions of §6174 Burns 1908, Acts 1907 p. 508, §19, was silent as to the name of the court which ordered the main drain established, the court did not err in overruling a motion in arrest of judgment, although the petition showed affirmatively that the arm was established by the board of commissioners, since the jurisdiction over a proceeding concerning the arm of a drain follows the jurisdiction of the main drain, p. 206.

3. *Pleading.—Character of*Pleading.—Test.—The character of a pleading must be tested by the facts averred, rather than by the prayer for relief or the conclusion of the pleader, p. 206.

4. *Drains.—Proceedings to*Improve.—Pleading.—Proceedings to establish ór improve drains being special statutory proceedings, the pleadings jn such cases are not tested strictly by the rules governing ordinary civil actions, p. 207.

5. *Drains.—Proceedings to Improve.—Jurisdiction.—Remon*strance.—In a proceeding under §6174 Burns 1908, Acts 1907 p. 508, §19, to improve an established drain, remonstrants had a right to question the jurisdiction of the court at the time of filing a remonstrance for other causes, where the defect of jurisdiction did not appear on the face of the petition, and the action of the court in sustaining a demurrer to verified remonstrances which, among other causes, stated facts showing the court to be without jurisdiction was erroneous, p. 207.

Prom Jasper Circuit Court,- *James P. Wason,*Judge.

Proceeding for the improvement of an established drain brought by Abner C. Pancoast and others, and against which *204Almira M. Stockton and others remonstrated. Prom a judgment for petitioners, the remonstrants appeal.

*Reversed.*

*E. B. Sellers, John A. Dunlap*and *W. H. Parkison,*for appellants.

*Frank Foltz,*for appellees.

Morris, C. J.

In October, 1909, appellees, as landowners, filed in the Jasper Circuit Court a drainage petition, praying for the tiling, enlarging and improving of a public drain, known as the Martindale ditch, and a lateral thereof called the Halstead ditch, and for the constructing of some new branches to the Martindale ditch. The proposed improvements were all in Jasper county.

It is contended by appellants that the Jasper Circuit Court had no jurisdiction of the subject-matter of the proceeding.

Appellants Almira M. Stockton, Cordelia M. Williams and Eliza Makeever filed a remonstrance, in the twelfth paragraph of which it was alleged that in 1899 a petition was filed with the board of commissioners of said county praying for the establishment and construction of the Martindale ditch, which was, by the board, in June, 1901, ordered established and constructed; that the construction thereof has not been entirely completed, according to the plans and specifications, and the matter is still pending before the board; that the drain which petitioners are herein seeking to improve is over the same line as the Martindale and Halstead ditches, and remonstrators deny the right of this court to order the improvement prayed for while the same is still pending before the board of commissioners.

Appellant Isaac N. Makeever filed a remonstrance, the tenth paragraph of which alleged substantially the same facts set out in the twelfth paragraph of the remonstrance of Almira M. Stockton and others.

Appellant Jasper M. Makeever filed a remonstrance, the tenth paragraph of which was substantially like the tenth paragraph of Isaac N. Makeever’s remonstrance. These re*205monstrances were all verified. A demurrer to each, of the above paragraphs of remonstrance for insufficient facts was sustained by the court. Appellants predicate error on this action.

The cause was tried by the court, resulting in á finding for appellees. Appellants filed a motion in arrest of judgment, which was overruled, as was also their motion for a new trial. From a judgment for appellees, granting the relief prayed for in the petition, this appeal is prosecuted.

1. This proceeding was instituted under §19 of the act approved March 11, 1907 (Acts 1907 p. 508, §6174 Burns 1908). This section, among other things, provides as follows: “Should the owner of any land, or any corporation, affected by the construction, change, improvement or extension of any work of drainage under this or any former law of this state, be of the opinion that such work, or any part of it, may be moire economically kept in repair, or may be made more efficient for its purpose, by tiling and covering; by removing tile and making the drain open,- by changing the line of the drain or extending its length; or by making any other change in the work as originally constructed, such land owner or corporation may apply for such change, improvement or extension by filing a petition therefor with the circuit or superior court, or with the board of commissioners, as the case may be, of the eounfy in which the proceedings were had for the construction of such work. ’ ’

This'section has been construed by this court to require proceedings to tile, improve or otherwise change a drain already constructed to be brought in the court which originally ordered it established. *O’Toole*v. *Tudor*(1911), 175 Ind. 227, 93 N. E. 276; *Binher*v. *Hahn*(1910), 175 Ind. 88, 92 N. E. 729. In the O’Toole case it was held, however, that it is not necessary to aver in the petition what court made the order establishing the drain, and the question of jurisdiction is not raised by a motion in arrest of judgment, *206where the petition is silent in relation to the court making the original order.

2. Here the petition is silent as to the name of the court which ordered the main drain—the Martindale—established, but does affirmatively show that the Halstead arm, connecting with the main ditch, was established by the board of commissioners. But as the jurisdiction over a proceeding concerning the arm of a ditch should logically follow that over the main drain, the court did not err in overruling the motion in arrest of judgment, because the petition did not, on its face, aver that the Martindale ditch was established by order of the board of commissioners.

Appellants insist that the court erred in sustaining the demurrers to the remonstrances above noted, because it is therein averred that the Martindale ditch was established by order of the board of commissioners, and it appears on the face of the petition that the Halstead arm was established by the order of the board, and hence the board had, under §6174, *supra,*exclusive jurisdiction of the subject-matter of the petition.

Appellee’s counsel contend that the paragraphs of remonstrance referred to are drawn on the theory of pleas in abatement, and, as such, are insufficient, because matters in abatement must precede pleas in bar, and cannot be pleaded therewith. §371 Burns 1908, §365 R. S. 1881; *Moore*v. *Sargent*(1887), 112 Ind. 484, 14 N. E. 466.

3. While the prayer for relief, or conclusion of the pleader, set out in the several paragraphs of remonstrance above referred to, might lend some support to appellee’s contention, a pleading must be tested by the facts averred, rather than by the prayer for relief or the conclusion of the pleader. *Houck*v. *Graham*(1886), 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727; *State, ex rel.,*v. *Ogan*(1902), 159 Ind. 119, 63 N. E. 227.

*207
      4.
      *206It is further to be remembered that this is a special statutory proceeding, and pleadings in such proceedings are not *207tested strictly by the rules governing ordinary civil actions. *O’Toole*v. *Tudor, supra.*

5. Appellants had the right to challenge the jurisdic* tion of the court over the subject-matter of the petition. The facts averred in these paragraphs of remonstrance show that the court was without jurisdiction. We perceive no reason why a jurisdictional plea may not be interposed at the time of filing a remonstrance for other causes. *Kemp*v. *Adams*(1905), 164 Ind. 258, 73 N. E. 590. Had the defect appeared on the face of the petition, the jurisdiction might have been challenged for the first time in this court. Here, the defect, except as to the Halstead arm, did not appear on the face of the petition, and it became necessary to plead it. In *Kemp*v. *Adams, supra,*this court said on page 261. “Whether the appellants’ remonstrance specifically setting forth a want of jurisdiction of the subject-matter was timely or not before the commissioners, when renewed, on appeal, and supported by affidavit, it disclosed sufficient substance to impose upon the circuit court the duty of entertaining it, and trying the question propounded. Appellees’ naked objection should not have been permitted to close the door against a fact fundamental to the court’s authority to proceed. ’ ’

For the error in sustaining appellees’ several demurrers to the twelfth paragraph of remonstrance of Almira M. Stockton and others, and the tenth paragraph of remonstrance of Isaac N. Makeever, and the tenth paragraph of remonstrance of Jasper M. Makeever, the judgment must be reversed.

Other errors are assigned, but in view of the conclusion reached, their consideration is rendered unnecessary.

Judgment reversed, with instructions to overrule appellees’ demurrers to said paragraphs of remonstrance, and for further proceedings not inconsistent with this opinion.

Note.—Reported in 98. N. E. 122. See, also, under (1) 14 Cyc. 1054; (3) 31 Cyc. 84; (4) 14 Cyc. 1030; (5) 14 Cyc. 1036.