On Petition for a Rehearing.
McCabe, J.In a strong petition for a rehearing, appellants’ learned counsel insist earnestly that we erred in our original opinion:
1. In holding that the act of the committee in making the apportionment of the additional assessment in the auditor’s office, ten miles, away from the lands assessed, instead of going to and viewing the lands, made no difference on the appeal.
2. In holding that such apportionment was superseded by the appeal to the circuit court, and, therefore, not material how it was made.
3. In holding that there was no error in overruling the motion to modify the judgment.
4. In failing to pass on or decide the assigned error of admitting in evidence the report of the viewers or committee to apportion the assessment.
It is a sufficient answer to the last point made for a rehearing, that we waded through a record of over three hundred pages of printed matter containing a special finding, conclusions of law, motion for a new trial and a vast mass of evidence and exceptions to rulings in relation thereto, carefully read the able and exhaustive brief of appellants, considered and decided every question raised by every alleged error pointed out in such brief. But the brief did not point out the alleged error *394assigned now as the fourth ground for a rehearing. Life is too short, and the duties and responsibilities of this court to other appellants in other causes are too great, to justify us in looking, or searching the record, for errors beyond those pointed out in the appellants, brief, for the purpose of reversing the judgment below.
Questions waived by silence of the original brief can not be presented to this court on a petition for a rehearing. Schafer v. Schafer, 93 Ind. 586; Fleetwood v. Brown, 109 Ind. 567; Union School Tp. v. First Nat’l Bank, etc., 102 Ind. 464; Thomas v. Mathis, 92 Ind. 560.
But the error of admitting in evidence the report of the committee to apportion the assessment was a harmless error, if error at all, because the court made an entirely different apportionment, and wholly disregarded the one made by the committee, which was entirely proper. Fulton v. Cummings, 132 Ind. 453.
The first ground assigned for a rehearing is in substance a contention that the special finding was contrary to the evidence, or that it was not supported by sufficient evidence. And the particular defect supposed in the evidence is that the undisputed evidence showed that the apportionment made by the committee appointed by the board for that purpose, was made in the auditor’s office ten miles away from the lands without seeing or viewing them.
The appellants’ learned counsel have wholly failed to point out, in their brief for a rehearing, what fact essential to the maintenance of the judgment below this evidence controverts, or in what way the fact thus established militates against the finding or judgment of the circuit court. That judgment was an apportionment of the amount of the deficiency arising from a previous assessment and apportionment on the lands benefited by the gravel road. The apportionment by the circuit court *395was not only entirely different from that made by the committee, but the deficit itself was found by the circuit court to be only $3,823.46 instead of $7,693.95, as found by the commissioners.
We held in the original opinion that the report of the committee was superseded by the appeal, and that it did not make any difference how the committee reached their conclusions, whether by proper or improper methods. If by improper methods, it was a good cause for the board to set aside their report and require them to do the work properly or commit it to a new committee.
In an appeal of a gravel road case, Black v. Thomson, 107 Ind. 162, this court, at page 165, said: “It is conceded by all parties that the tioard of commissioners acquired jurisdiction in this case when the petition was filed, and that consequently it had authority to appoint viewers and an engineer in the first instance. However irregular, therefore, the subsequent proceedings may have been, the jurisdiction thus acquired was not lost. * * Whether regular or irregular, these subsequent proceedings were vacated by the appeal to the circuit court, where the cause stood for trial de novo, and not, as in an appellate court, for the review and correction of errors. McMullen v. State, ex rel., 105 Ind. 334; Fleming v. Hight, 95 Ind. 78; Munson v. Blake, 101 Ind. 78.
“Such subsequent proceedings being vacated by the appeal, nothing disclosed by them, whether of omission or commission, afforded any cause for dismissing the petition.”
The irregularity here complained of, was the omission to go to the lands and apportion the assessment on actual view of the same.
We do not decide whether that was necessary to a valid apportionment. But if it were necessary, then such omission was a mere irregularity that has, and can have, *396no effect whatever on a totally different apportionment made by the circuit court on appeal.
In another gravel road case, Hardy v. McKinney, 107 Ind. 364, after quoting the general statute allowing appeals from boards of commissioners on page 369 it is said: "Under this provision of the statute it has always been held that appeals from commissioners stand for trial de novo in the circuit court, that is that all matters in issue before the commissioners stand for trial anew in the circuit court, and not for review or correction as in a court of errors. As a necessary consequence, it has been further held that such appeals suspend all the proceedings had upon questions in issue before the commissioners, and that such proceedings can not either be used, or taken into consideration, upon the trial de novo in the circuit court.”
The report of the committee apportioning the assessment, and the method adopted by them in making the apportionment, are a part of the proceedings before the board, and can not be taken into consideration upon the trial de novo in the circuit court. It, therefore, follows that whether that committee proceeded properly or improperly, regularly or irregularly, to make the apportionment, made a correct or grossly incorrect apportionment, can exert no influence on the trial of the quéstion of fact presented by the exceptions to that report on appeal, the object of which is to secure a correct apportionment by the court. It would be like offering proof on appeal from a justice of the peace, that the verdict of the jury before the justice had been arrived at by chance, and, therefore, ought to be set aside. That sort of evidence would have no bearing on the issue whatever. It would neither tend to show that the finding or verdict on appeal should be for the plaintiff or the defendant. And so here. The fact that the committee made the ap*397portionment in the auditor’s office, ten miles away from the land, without viewing or seeing the same, does not tend to prove that there should be no apportionment of the assessment against appellants’ lands, nor a smaller or larger apportionment against them. Therefore, the undisputed evidence of the fact as to how, when, or where the committee made their apportionment does not contradict, or tend to contradict or overthrow, any fact or any evidence essential to the support of the special finding and judgment of the court.
What we have just said disposes of the second ground assigned for a rehearing, namely, that we erred in holding that the report of the committee is superseded by the appeal to the circuit court.
Counsel argue against that holding, that “the report of the viewers in this case is the complaint, the notice issued is based on this report, and the land-owners are notified of the time when the commissioners will meet at the auditor’s office ‘to hear the same.’ The statute gives the commissioners the right, where exceptions are filed, to hear the same. After such hearing they may confirm such report, or change the same, or refer the same to a new committee. * * * This is all the commissioners could do in the premises, and, we suppose, this is all the circuit court could do. If we are not correct in this position, and the report of the viewers is not before the court the same as it was while it was pending before the board, there is absolutely nothing in the evidence, or anywhere in the case, to authorize the court to make or confirm any assessment against any one.”
From this we infer that appellants’ position is that the circuit court, on appeal, can do nothing but the same things the board could do, namely, “either confirm said report or change the same, or refer the same to a new committee,” etc. •
*398In this, counsel are in error.
In Hardy v. McKinney, supra, at p. 370, this court said: “In appeals to the circuit court in causes like the one in hearing, and in all analogous cases, the court or jury trying the same succeeds to all the substantial duties which devolved upon the viewers and reviewers before the board of commissioners as to the matters which stand for trial de novo, and a finding or verdict in detail upon all the matters in issue between the parties is contemplated. This includes the assessment of benefits, and the allowance of damages in cases in which damages ought to be allowed. The finding or verdict ought to be sufficiently specific upon every question involved to authorize a judgment finally determining all the matters in controversy, and leaving nothing for the adjudication of the commissioners in the event that the cause shall be certified back to them.”
It is a mistake to suppose that the report of the committee making apportionments in such cases performs the office of a complaint. It is more in the nature of verdict or finding of facts. When it is returned to the auditor’s office, he gives notice thereof, and when the matter will he heard. If no exceptions thereto in writing are filed, it is confirmed, as matter of course, by the commissioners, just as a judgment is rendered on a verdict, without proof or evidence of its correctness. 3 Burns’s Rev. St. 1894, section 6860.
This confirmation has the effect of a judgment. Loesnitz v. Seelinger, 127 Ind. 422.
If it were in the nature of a complaint, no judgment could be rendered on it without proof of its correctness or truth, that is, where amounts are involved, they must be proven. The exceptions filed are in the nature of objections to a verdict or finding.
It is very clear that we were right in holding, in the *399original opinion, that the appeal to the circuit court superseded the report of the committee apportioning assessments, and that evidence that the committee adopted a supposed wrong method, in reaching their conclusions, had no bearing on the trial of the issues in the circuit court.
Filed April 3, 1894.The third ground assigned for a rehearing is the last one we have to consider, namely, that we erred in holding that the trial court rightfully overruled the motion to modify its judgment.
The ground assumed in that motion is that the deficit found by the commissioners to exist was $7,693.95, and that the court only found it to be $3,984.86; only 49% per cent, as much as the commissioners had found it to be. They therefore asked that their respective apportionments, as made by the circuit court, should be so reduced as to make them 49M per cent, of the amount ap-. portioned to them by the committee in the commissioners’ court.
Appellánts have assailed the work of the committee as being vicious and void, on account of a failure to comply with the statute in making their apportionment, and they have kept up this assault until they come to argue in.support of their motion to modify the judgment. In that argument, they take the opposite ground, and that is, that the apportionment of the committee was absolutely correct. The motion assumes that the only wrong done them was by the board in finding the deficit too large. But, aside from this, there was no error in overruling the motion to modify, for the reason, that if the apportionment made against appellants’ lands was too high, was too much, it furnished no ground for a motion to modify the judgment. The proper remedy was by motion for a new trial.
The petition for a rehearing is therefore overruled.