ON REHEARING. Appellant Elmer R. Knapp has filed his separate petition for a rehearing, alleging error of this court in not holding that the doctrine of equitable estoppel applied as to him. He cites cases decided by this court, where the property owners, with knowledge of proceedings had, and work done, without objections, where it was held that in an action by the contractor to enforce liens to pay for the work, the property owners were estopped to question the validity of the proceedings. But those cases were quite different from the case at bar. The record before us discloses some very interesting facts. We mention some of them. The board of county commissioners of St. Joseph County, Indiana, on October 27, 1930, sustained a remonstrance to the report of the drainage commissioners and dismissed the petition. Appellant Penn prayed an appeal to the circuit court, and filed appeal bond on that day. No transcript of the proceeding had before the board *Page 139 of commissioners was filed with the clerk of the circuit court until June 17, 1935. On October 23, 1935, William A. Bertsch was appointed special judge and qualified. The next step taken in said cause was on February 26, 1936. On that day the drainage commissioners appointed by the board of county commissioners filed what they denominated a supplemental report. An examination of this report as it appears in the record discloses that this report does not attempt or in any manner purport to supplement the original report filed with the board but is a new and complete report in all its parts. The specifications are complete in all its details. A great number of parcels of real estate included in the original report are omitted from the second report. The length of the ditch was shortened, and all the assessments of benefits were changed. The court did not request a new report and no time was ever set for them to make any report. No notice of the new assessments against the real estate was given to the property owners, but on April 9, 1936, the court approved the original report and also the supplemental report, and entered judgment establishing the ditch, and assigned the same to Phillip R. Gillin, one of the drainage commissioners, for construction. On May 27, 1936, said Gillin filed his bond as construction commissioner. On June 23, 1936, the drainage commissioner filed what purports to be the bond of Elmer R. Knapp as principal and the American Surety Company of New York as surety, for the faithful performance of his contract on three separate ditches, including the repair of the ditch involved in this appeal. On September 15, 1936, appellees filed their motions to strike out the supplemental report of the drainage commission and also asked that the proceeding be dismissed. Up to this time appellant Knapp was not a party to the proceedings. On the last date above mentioned appellant Knapp appeared by counsel and *Page 140 submitted arguments on the motions filed by appellees. On October 8, 1936, the drainage commissioner filed what was marked a partial report of the work done. By this report it appears that some time after September, 1935, the remonstrators and other persons interested in said ditch held a meeting at the "Stukey School House" for the purpose of discussing said ditch and the proceedings, and that said parties on their own initiative employed a competent engineer to advise said parties concerning said ditch. That on November 25th another meeting was held, at which meeting the engineer employed made a report and after this report was made, it is alleged that: "said parties tentatively agreed upon new specifications, which are set out in the supplemental report herein." The report further shows that no contract was ever let for the construction of said work to anyone. On the contrary the report shows that the construction commissioner leased a "drag line excavating machine, operated on caterpillars with 1 1/2 yard capacity, heavy type buckets, with at least 110 H.P. gasoline engine, on cables, mats and necessary equipment. . . ." For the use of the above machinery appellant Knapp was to receive $.0445 per cubic yard excavated by said machine. That the work was performed by the Civilian Conservation Corps. That the work was commenced on July 3, 1936, and continued until September 8, 1936, and that during that time 26,166.4 cubic yards of dirt was excavated at a cost of $1,164.41.
The record further shows that on October 8, 1936, William H. Penn et al. filed answer to appellee's motion to strike out the supplemental report and to dismiss the appeal, and on the same day appellant Knapp asked leave of court to intervene, and over objections of appellees the court permitted Elmer R. Knapp to file "remonstrance against dismissal of appeal and petition *Page 141 to apportion and levy assessments." Appellant Knapp alleges in substance in his "remonstrance" and "petition" that he entered into the contract with the ditch commissioners in good faith, and furnished the drag machine as herein above set out, and that the land owners had knowledge of the work being done and acquiesced therein; made no objections until September 8th, and that said land owners were guilty of laches and should be estopped from questioning the validity of the proceedings, and asked the court to overrule the motion of appellees to dismiss the appeal and that the court retain jurisdiction of the cause and permit appellant Knapp to fully complete his contract, or that the court retain jurisdiction for the purpose of allotting the benefits and levying assessments to pay appellant Knapp the amount due him.
The other appellants' answers alleged knowledge on the part of appellees of the work being performed and urged estoppel on account of standing by without objection. On October 14, 1936, there was a hearing on the above petition and answers, and the matter was continued until November 18, 1936, when the court sustained appellee's motion to strike out the supplemental report and dismissed the appeal. The petitioners filed their motion for a new trial which was overruled. Time was given to appellants within which to file bills of exceptions, but no bills of exceptions were ever filed, and therefore the record comes to us on the pleadings, and without the evidence that was introduced at the hearings.
Appellant Knapp very earnestly contends that the judgment of the St. Joseph County Circuit Court entered on April 9, 1936, establishing and ordering the reconstruction of said 2, 3. ditch was a final judgment, and after the term of court at which it was entered had ended, said cause was no longer in fieri *Page 142 and the court no longer had jurisdiction. After that time the court can make no order changing, modifying or correcting the judgment. This proposition is correct as far as it goes, but it does not state the full rule. The court may change, modify or set aside a final judgment after term, if the party seeking to have the judgment set aside, changed, or modified gives proper notice to the other interested parties, or upon their voluntary appearance. In the case at bar the record shows that all of the appellants voluntarily appeared to appellee's petition to set aside the judgment and dismiss the appeal, and filed answers thereto and appeared and participated in the hearing. This we think gave the court jurisdiction to change, modify, or set aside the judgment as he may determine. Perkins et al. v. Hayward (1892), 132 Ind. 95, 31 N.E. 670. In the absence of the evidence this court must presume the evidence justified the action of the court.
Appellant also contends that even though the judgment establishing the ditch was void, it could not be set aside in a collateral attack by the losing party. But this was not a 4. collateral attack upon the judgment of the court. It was a petition in the same action to set aside the judgment, strike out the supplemental report, and to dismiss the appeal. That was the sole purpose of the proceeding and appellants entered full appearance and filed answers and participated in a hearing, and thereafter filed a motion for a new trial. It would seem to be a strange doctrine that would permit a party to participate in such a proceeding, and take his chances of a favorable ruling, and in the event he lost, to then contend that the court had no jurisdiction to enter a judgment thereon. We are of the opinion that there is no merit in appellant's position on this point.
Appellant contends that the court should have retained *Page 143 jurisdiction of said cause and permitted appellant Knapp to complete the contract or at least to apportion the 5, 6. benefits and collect an amount sufficient to pay appellant for the work already done. As stated above, the evidence is not in the record, and we are not advised as to what the facts show. From the pleadings it appears that appellant Knapp had no contract for the reconstruction of said drain. It appears from his answer to appellee's petition to dismiss the appeal, that he had leased some machinery to the construction commissioner, and that the Civilian Conservation Corps was in charge of and performed the work. We know of no statute that authorizes such a proceeding, and appellant has pointed out none. Section 6182 Burns Ann. St. 1926 provides, among other things, that, after giving notice for two weeks in a newspaper of general circulation in the county where the lands assessed as benefited are situated (the commission shall) proceed to let such work by contract to the lowest and best bidder. No such contract was let as far as this record reveals. The only thing in the record to show that any money was due appellant Knapp under any contract is his own pleading. The evidence introduced at the hearing may have shown the contrary. At least the record as presented does not affirmatively show that appellant was harmed by the ruling of the court. It may also be noted that in drainage proceedings the court is not given the power or authority to fix and levy assessments against the real estate or collect the same, as appellants are urging in this case.
Appellants contend that appellees were guilty of laches in that they stood by with knowledge that the work was being performed and made no objections. The record discloses that the last 7. entry made during the May term of the St. Joseph *Page 144 County Circuit Court in this case was to approve the contractor's bond on June 23, 1936. No showing is made as to the date court adjourned the May term. It might have been the next day as far as the record discloses. The record discloses that appellee's petition was filed on the second judicial day of the following September term. The pleading shows that the work was commenced on the 3rd day of July. If court was not in session at that time, and did not convene until September we cannot say as a matter of law that appellees were guilty of laches.
While the record discloses many irregularities and almost a total disregard to statutory provisions governing ditch proceedings, we are fully satisfied appellants have not shown any reversible error.
Petition for a rehearing denied.