On Petition for Rehearing.
Myers, J.Appellees, by their petition for a rehearing, supported by a carefully prepared brief, have called our attention to certain rulings in the opinion now on file in this case which they assert to be erroneous. We have re-examined the opinion in its entirety and rechecked it with the original and present insistences of appellees, without being persuaded to change our conclusions on the various questions decided.
However, appellees seem to be thoroughly impressed with the thought that because appellants failed to assign error on the action of the court in dismissing petitioners’ petition, this court had no jurisdiction to make any order in that connection. The dismissal of the petition was a final disposition of the proceedings. As we understand the record in this case, the remonstrance filed before the board of commissioners, whether treated as one challenging the jurisdiction of the board, or as a remonstrance by two-thirds of the landowners affected by the proposed 'improvement, was treated in the circuit court as the first paragraph of the remonstrance. This pleading and the petition formed the only issue before the board. That issue, as we- have held, was the only one for trial on appeal to the circuit *281court. The sufficiency of the remonstrance as a bar to the petition was tested by the motion to dismiss. The sustaining of the remonstrance, as a matter of law, (§6142 Burns 1914, Acts 1907 p. 508), required a dismissal of the petition. The court’s last action followed as a sequence of its decision overruling the motion to strike out and in sustaining the remonstrance. Errors assigned on these rulings, to which exceptions were duly saved, went to the very, fountain head of the proceedings, and, if erroneous, was certainly a very vital error in the progress of the case.
Appellees cite Galey v. Mason (1910), 174 Ind. 158, Ann. Cas. 1912C 1290, where it is held that a motion to dismiss an appeal is not a proper cause for a new trial, but may be assigned as an independent error. In the instant case there was no motion for a new trial, nor a motion to dismiss the appeal ; but the ruling on the motion as made, as well as the ruling sustaining the remonstrance, as we have seen, are assigned as independent errors, and properly, so.
Our special attention has been called to the act of 1917, (§6143 Burns’ Supp. 1921, Acts 1917 p. 292) where the right to file a two-thirds remonstrance is given after the filing of the report of the drainage commissioners. That act amended §4 of the act of 1907 (§6143 Burns 1914, Acts 1907 p. 508), which enumerated the causes for a remonstrance in drainage proceedings. This amended act, by virtue of an emergency clause, took effect March 7, 1917, and allowed ten days, exclusive of the day of filing the commissioners’ report and Sundays, for any landowner to appear and remonstrate against the report. It also made provision for a two-thirds remonstrance against the construction of any lateral, arm or branch to the main ditch described in the report. But it further provided that— “No amendment or change of the present law as effected *282by this act shall be construed to affect or be applicable to any pending proceeding or proceedings.”
The various steps as taken in this case are noted in the original opinion, from which it will be seen that the petition was filed January 16, 1917, and although the drainage commissioners were not appointed until March 7, 1917, it is obvious that this was a pending proceeding at the time the amended act took effect. Consequently the amended act, according to its express provisions, was not applicable to this case.
. The petition for a rehearing is denied.