In re Warrington

Headnote

Ditches—Commissioners—Return ■ Time for Filing—Incomplete Return—Remanding— Continuance.

There is nothing in the statute requiring that the report of ditch commissioners shall be filed on the first day of the term; and if an incomplete return is marked “filed,” it may be remanded to the commissioners, and the order continued until the next term of Court.

Ditch Return.

Mr. Moore:—I move that the petition, report and proceedings in this case be dismissed for two reasons:

1. Because the report of the commissioners in this case was not filed until October 5th (after the Court had adjourned over until the following Monday, October 9th), whereas under the rule of Court it should have been filed on the first Monday of the term, which was October 2d. I was therefore prevented from filing exceptions to the report, because under the rule of Court the exceptians must be filed to ditch returns on the first Friday of the term.

2. The law states specifically that a plot must be filed with the return of the commissioner. In this case there has been no plot filed. Therefore we could not except to the plot and we could not except to the return or the report of the commissioners under

the rule of Court; and for these reasons I ask that the petition and proceedings be dismissed.

Mr. White:—This report is not completed. I move to extend the time until the next term, in order that the commissioners may complete their report. It is not a final report of referees. The plot is not with it, and I am informed that the reason for that is that the surveyor has not had time to make the survey. We do not want to treat this report as filed at all.

Mr. Moore:—It is endorsed as filed.

Mr. White:—I take it, as it is incomplete, that it cannot be confirmed and will be remanded.

Mr. Moore: —If there had been no report, the motion for a continuance would be proper, and I could not have objected ; but to do as Mr. White requests would be a very lame and loose practice. There is great opposition to this ditch, and we ask the Court to construe this law strictly.

Mr. White:—Even if it had been filed the Court would remand it and not dismiss it. And if your Honors should hold that it was filed, then I ask under the practice of this Court that it be remanded to the commissioners. This filing on the fifth was like this; the surveyor put it in the clerk’s office and said he could not complete the plot. The filing was an inadvertence and we ask that it may be stricken off and that your Honors will treat it as not filed. Then we ask that the time be extended until the next term of Court to complete the order. The order is not complete and we cannot file an incomplete order.