Sidebilder
PDF
ePub

alleys, and highways within said city, and also to hear and determine all matters appertaining to the altering or straightening of streams within said city, and the taking of lands for sewerage purposes," etc. Section 3167 provides that "before any matter of the opening, laying out, or altering of any street, alley, highway, or water-course, or of the vacation thereof, shall be referred to the city commissioners, the common council shall refer the matter to an appropriate committee, who shall examine the matter, and report at the next meeting of the common council upon the expediency of so referring; and if the common council shall determine, by a twothirds vote, to submit the said matter to the commissioners, it shall be so ordered, and shall thereupon be referred to said commissioners, as herein before provided," etc. Sections 3168, 3169, 3170, 3171, and sections following, prescribe the duties of the city commissioners. Those sections provide for the assessment of damages to property, any part of which is taken.

civil engineer of said city. That said Green, | be to hear and determine all matters apperpursuant to the terms of said agreement, pro- taining to the acquisition, opening, laying ceeded to and did make and construct said out, altering, and straightening of streets, street according to the said ordinance, specifications, and agreement with said city; all of which was done without having referred said matter to the city commissioners of said city, whose duty it was and who might meet and examine the property sought to be appropriated, and to view and examine the real estate, in the vicinity of said new street, that might be benefited or injured by the construction of said proposed new street, and that they might estimate the damages and injuries to the property and real estate injuriously affected by such improvement, and permit any person so injured and damaged to appear before such commissioners, and show and prove to them any damages sustained. By reason of which failure to so refer said matter of said proposed street to said board of city commissioners, the appellee was wholly deprived of her right and privilege of having her damages assessed for said improvements, and of appearing before said commissioners, and showing and proving any damage she might show herself entitled to by reason of said proposed street. That in the construc- The construction we think should be placed tion of said new street, as aforesaid, said con- upon those sections of the statute is that all tractor of said city, as aforesaid, cut down proposed street improvements "appertaining plaintiff's said lot the entire length thereof to the acquisition, opening, laying out, alteron the west side thereof to the depth of two ing, and straightening of streets, alleys, and feet, and cut the south or front end thereof highways within said city" shall be referred gradually down to the depth of ten feet, but to such city commissioners; but, preliminary to the north or rear end of said lot, leaving to referring such matter to such city complaintiff's said lot above said street, after it missioners, the common council shall refer was so constructed, from two to ten feet, the the matter to an appropriate committee, who entire length of said lot, leaving the alley in shall examine the matter, and report at the the rear of said lot two feet above the level next meeting of the common council upon of said newly-constructed street, thereby cut- the expediency of so referring, and, when the ting off all ingress and egress to the rear end committee report, the council take a vote upof said lot situate and abutting on said alley. on the question of referring the matter to That by reason of said street having been so the city commissioners. If two-thirds vote made and cut, as aforesaid, plaintiff will be in favor of referring it, the matter is recompelled to build a stone wall the entire ferred; if two-thirds do not vote in favor length of said lot, to prevent the said lot from of referring it, that ends the question of caving and undermining her said house, at a the improvement. It seems to us that the cost of $300. That she was compelled to and improvement made in this case clearly comes did build a foundation under her wood-house within the character of street improvements that abuts on said new street at a cost of contemplated by those sections of the stat$100; and that said defendant, by and through ute, and which should have been referred its said contract in the making of said street, to the city commissioners to assess the caused to be hauled and carried away 500 yards benefits and damages. If it cannot be said. of earth, gravel, and soil belonging to plain- to be the opening or laying out of a new tiff, of the value of $100, and otherwise dam-street, it is certainly the altering of a street aged plaintiff, in all the sum of $1,000, all by reason of the construction of said street; and a demand for judgment. The appellant demurred to the complaint for want of sufficient facts; which demurrer was overruled, and exceptions taken.

Section, 3166 Rev. St. 1881, provides that "there shall be appointed once in each year, by the circuit court in the county wherein is situated any city of this state incorporated under the general act for the incorporation of cities, five freeholders, residents of said city, who shall constitute a body to be called City Commissioners,' and whose duty it shall

or alley; and it is unnecessary to determine which it was, as in either event it should have been referred to the city commissioners.

It is contended by counsel for appellant that the damages alleged relate to the improvement of the street, and that the action of the common council is governed by sections 3161, 3162, and 3163, Rev. St. 1881. The improvement in this case was not of an old street petitioned for under section 3162; and section 3161 is not in conflict with the construction we have given to sections 3166, 3167, and other sections referred to. Section 3161 gives to the common council exclusive power

complaint are damages resulting from the grading of the street, and not the widening of the alley into a street. The complaint proceeds upon the theory that, the city having failed to refer the matter to the city commissioners, it is liable to the appellee for all damages she may have sustained by reason of grading the street, and cutting it below the level of her lot; and it fails to allege that there ever had been any prior established grade to the ailey. We think no damages are alleged which resulted from the mere change in the width, and, if there are, it is evident the complaint was not framed with a view of basing a recovery on those damages; and a complaint, if good, must be so on the theory on which it is pleaded. The demurrer to the complaint should have been sustained. Taking the theory we do of the complaint, it is unnecessary to decide the other questions presented. Judgment reversed, at costs of appellee, with instructions to sustain a demurrer to the complaint.

(120 Ind. 197)

STATE ex rel. SHEPARD v. SULLIVAN et al. (Supreme Court of Indiana. Oct. 17, 1889.): INSOLVENCY-ACTION BY RECEIVER-RES ADJUDI

CATA.

1. The receiver of an insolvent debtor, appointed at the suit of the creditors, cannot enforce against the debtor and his sureties the penalty of Affirming 21 an official bond executed by them. N. E. Rep. 1093.

over the streets, and the right to lay out, survey, and open new streets and alleys, and straighten, widen, and otherwise alter those already laid out; but sections 3166 and 3167 provide the manner in which the benefits and damages shall be assessed when the common council does make any alteration in a street or alley or lay out a new one. The city in this case changed the alley into a street, making it, instead of an alley 14 feet in width, a street 54 feet in width, without referring the matter to city commissioners for the assessment of benefits and damages; and in doing so the city exceeded its power, or, rather, neglected a plain duty prescribed by the statute, whereby the appellee was deprived of her right to have any damages she might sustain by reason of such change assessed by the city commissioners, as prescribed by the statute; but the damages to be assessed by the city commissioners only relate to the damage which will accrue by reason of the opening of the new street, or the change to be made in the street by reason of the change in the location, widening, or narrowing the same, and does not include damages resulting from the manner in which the street may be improved after it is laid out and opened. In this case there are two elements of damage: One, the laying out of the street, changing it from a 14-foot alley to a 54-foot street. This damage, if any, resulting to the appellee, would be assessable by the city commissioners, and she was deprived of the right of having it so assessed by the failure of the common council to refer the matter to the city commissioners, and for such damages as she has sustained by reason thereof she has a right of action against the city. But there is another element of damage, and the principal, if not the only, damage alleged in the complaint in this case, and that is the damage resulting from the grading of the street. This element of damage is not ELLIOTT, C. J. It is perfectly clear that assessable by the board of city commission- the receiver of John E. Sullivan cannot seize ers. Ordinarily, we presume, an ordinance and enforce John E. Sullivan's official bond provides for the opening of a street, or the as an equitable asset. The bond evidenced changing of it, and the grading or improve- an obligation of Sullivan's and not a debt ment of it is an after-consideration, provided due him. The default which made him a for by a subsequent ordinance. The lot- debtor as principal, and his sureties liable, owner is not entitled to damages resulting was his, and his alone; and the claim arising from the original grading of a street. It is from that default cannot be made an asset in only when the grade of a street has been once the hands of his receiver. The posture of established, and afterwards changed, and the the relator is therefore that of a person, actlot-owner sustains damage by reason of such ing as a receiver, endeavoring to enforce an change in the established grade of the street, obligation of the person of whose estate he that the lot-owner is entitled to damage. is the receiver. The sureties have a right to City of La Fayette v. Nagle, 113 Ind. 425, 15 oppose the effort of the receiver to make N. E. Rep. 1. So that, to entitle an abut- them pay Sullivan's debts by enforcing ting lot-owner to damages resulting from against them Sullivan's own bond. Nor is grading a street, he must show that there this right taken away from them by the dehad been a prior established grade, and that cree appointing the receiver. They were not damage resulted by reason of the change. parties to that suit, and were not concluded That is not done in this case. There is no by that judgment. It was no more within averment in the complaint that there ever the power of the court in that suit to conhad been any established grade to the alley clusively adjudge against them the right of prior to the grade established and made by the receiver to enforce the bond than it was the city in making the alleged improvement to conclusively decree that they were liable to the street. The damages sued for in the on the bond, or to conclusively fix the amount

2. The right of the sureties to oppose the efforts of the receiver to enforce the bond was not taken away from them by the decree appointing

the receiver.

On petition for rehearing. For former opinion, see 21 N. E. Rep. 1093.

Henry N. Spaan and Claypool & Ketchem, for appellant. Duncan & Smith, for appellees.

i

of damages. The sureties did not have their] day in court, and they are not concluded; but all legal and equitable defenses are open to them, and they do no more here than assert one of those defenses by challenging the receiver's right to enforce the obligation upon which Sullivan is liable as principal, and they as sureties. Petition overruled.

(120 Ind. 502)

CITY OF HUNTINGTON v. HAWLEY et al. (Supreme Court of Indiana. Oct. 31, 1889.)

HARMLESS ERROR-REVIEW ON APPEAL. 1. Where the first paragraph of a complaint is the same substantially as the second, the sustaining a demurrer to the first is harmless error, where issues are joined and trial had on the second paragraph.

2. Where there is evidence to sustain the findings of the trial court, its judgment will not be reversed on the weight of evidence.

3. There is no error in excluding the record of a plat purporting to be that of a town, where the plat bears no date, is not acknowledged, nor does the date of record appear, and another plat, identical with the one excluded, is admitted.

Appeal from circuit court, Huntington county; M. WINFIELD, special judge.

Action by the city of Huntington against W. W. Hawley and others. Judgment for defendants, and plaintiff appeals.

Ibach & Ibach and L. P. Milligan, for appellant. Kenner & Dille, for appellees.

OLDS, J. This is an action by appellant against the appellees to enjoin the appellees from interfering with or desecrating certain real estate described in the complaint, alleged to have been dedicated to, and accepted by, the city as a cemetery, and within the city limits of the city of Huntington.

in admitting in evidence a deed from Sarah M. Tipton et al., being all the heirs of John Tipton, Sr., and John Tipton, Jr., former owner of the land, to the appellees for the land in controversy. There was no error in the admission of this deed in evidence. There is no error in the record for which the judgment should be reversed. Judgment affirmed, with costs.

(120 Ind. 364)

QUICK et al. v. BRENNER et al. (Supreme Court of Indiana. Oct. 17, 1889.) RES ADJUDICATA.

A judgment in an action by a widow to have her one-third interest in her deceased husband's land set apart to her, or, in case that she should not be entitled to that relief, that she might redeem from a mortgage on the land, held by defendants, based on the theory that there had been no foreclosure of the mortgage, does not adjudicate the rights of the holders of the mortgage to foreclose.

Appeal from circuit court, Hamilton county; E. B. GOODYKOONTZ, Judge.

Action by Samuel S. Quick and others against Catherine Brenner and others, to foreclose a mortgage. Judgment for defendants, and plaintiffs appeal.

Shirts & Shirts, for appellants. Kane & Davis and F. M. Frissal, for appellees.

BERKSHIRE, J. This case is an offshoot from the case of Brenner v. Quick, reported in 88 Ind. 546, and again in 101 Ind. 230, as Quick v. Brenner. The present action is to foreclose a mortgage executed by Conrad M. Brenner, the former husband of the appellee Catherine Brenner, and who is his widow, anterior to his marriage with her, to secure several promissory notes, executed by the said Conrad M. Brenner to one Christian Baston. The said notes and mortgage were executed on the 9th day of September, 1854, and the last of said notes to fall due matured March 20, 1857. This action was brought on the 2d day of May, 1885. Several answers and replies were filed, and the case having been put at issue was tried by the court, and a finding made for the appellees. The appel

The first error assigned is sustaining a demurrer to the first paragraph of the complaint. The second paragraph of the complaint is substantially the same as the first. The same evidence could be introduced, and the same relief granted, under the second as under the first, and the demurrer was overruled to the second, issues joined and trial had upon it, and there is no available error in sustaining the demurrer to the first para-lants moved the court for a new trial, which graph.

The only other error assigned is the overruling of the appellant's motion for new trial. The first question presented on the overruling of the motion for new trial is as to the sufficiency of the evidence to support the finding and judgment of the court. There is evidence tending to support the finding of the court, and this court will not reverse a judgment on the weight of the evidence.

The next question presented is the ruling of the court in refusing to admit in evidence the record of a plat purporting to be a plat of the town of Huntington. The plat does not bear any date, it is not acknowledged, nor does the date of its recording appear, and another plat, conceded to be identical with the one excluded, is admitted in evidence. There was no error in excluding it.

It is next contended that the court erred

the court overruled, and they excepted. Judgment was then rendered for the appellees. The appellants assign several errors and the appellees one cross-error. The crosserror is not well assigned. The sufficiency of one of several paragraphs in a complaint cannot be questioned for the first time by the assignment of error in this court; but, as the conclusion we have reached must result in a new trial of the case, we do not feel that it is improper for us to say that we regard each paragraph of the complaint as stating a cause of action.

Of the several errors assigned by the appellants their counsel only refer to three of them in their brief. This is a waiver as to the others. These are: error of the court in overruling the demurrer to the fourth paragraph of answer; error committed by the court in overruling the appellants' demurrer to the

seventh paragraph of answer; and error com-fore reaching the crossing. The special verdict mitted by the court in overruling the motion for a new trial. Our conclusion as to the two first named of these errors renders it unnecessary that we should consider the one last named. The two may properly be considered together. The fourth and seventh paragraphs of answer are in the nature of pleas of estop-resulting to any person by failure to observe these pel by record.

2. When a special verdict finds facts requiring a judgment for plaintiff on one of his two causes of action, but not on the other, a venire de novo should not be granted. If the verdict finds facts the evidence, the remedy is by motion for a new unwarranted by, or omits facts established by, trial.

3. The refusal of the trial court to send the

jury back to consider further of their special verdict must be urged as a ground for a new trial, or it will not be considered on appeal.

Appeal from circuit court, Hamilton county; D. Moss, Judge.

did not find that the employes knew that the cow to whether the bell was rung, or whether the rate was on or near the track, and it was also silent as of speed was unlawful. Rev. St. Ind. 1881, §§ 4020, 4021, require locomotive whistles to be blown three bells to be rung continuously until after it is passed, times immediately before reaching a crossing, and and make railroad companies liable for damages regulations. Held, that the facts not found by the We do not care to spend much time in giv-defendant, and hence that the only fact from which special verdict would be presumed in favor of the ing our reasons for the conclusion to which negligence could be inferred was the failure to we have arrived, which is, that both the blow the whistle, and the court could not conclude fourth and seventh paragraphs of answer are that the omission caused the accident. bad, and the demurrers thereto should have been sustained. These paragraphs are quite lengthy, and especially the fourth paragraph. Among other things, it contains copies of the pleadings and judgment in the former action. The facts stated show very clearly the right of subrogation in the appellants, and that their right to foreclose the mortgage was not adjudicated or determined in the former action. It could not have been, in the very nature of things. The appellee Catherine Brenner brought the action to settle her title to the one undivided third of the real estate, which she claimed by inheritance from her deceased husband, and demanded partition, and that her one-third be set off to her in severalty; and, in case she was not entitled to such relief, then she asked for an accounting, and that she be allowed to redeem from the mortgage sued on in this action. The court sustained her claim to one-third of the real estate independent of any right to an accounting and redemption, and she recovered judgment for one-third of the real estate, and her one-third was set off to her in severalty. Her theory, from the commencement of the action to the final judgment, was that there had never been a foreclosure of the mortgage, and that she was the legal owner of an undivided one-third of the real estate, and entitled to partition; and this theory of the case was adopted by the court, and she obtained judgment accordingly.

The law will not permit parties first to blow hot and then to blow cold. The widow, having adopted the theory stated above, and followed it through to final judgment, will not thereafter be permitted to assume that the action was prosecuted upon some other theory, and, as she will not be permitted so to do, neither will her privy in estate.

Judgment reversed, with costs, and with instructions to the court below to grant a new trial, and to sustain the demurrers to the fourth and seventh paragraphs of answer.

[blocks in formation]

Action by Joseph Green against the Louisville, New Albany & Chicago Railway Company for negligently killing one of plaintiff's cows, and injuring another. Judgment for plaintiff, and defendant appeals.

Bayless & Russell and E. C. Field, for appellant. Stephenson & Fertig, for appellee.

OLDS, J. This action was commenced before a justice of the peace, and an appeal taken to the circuit court, where an amended complaint in three paragraphs was filed. The first paragraph alleges the killing of one cow and the injuring of another, by the defendant, on August 20, 1885, with its locomotive and cars, at a place where the defendant's track was not fenced, but where it might have been fenced. The second paragraph alleges that on the night of the 20th day of August, 1885, two cows owned by the plaintiff, without his knowledge or fault, broke out of the inclosure in which he had them confined, and wandered upon the appellant's railroad track, at a point where said railroad crossed a public highway in said county; and while so on, or in the immediate vicinity of, said crossing, the defendant's agents in charge of one of its locomotives and trains willfully, carelessly, purposely, and unlawfully ran its said locomotive and train upon and against said cows, thereby killing one, and maiming and crippling the other, to the plaintiff's damage, etc. The third paragraph avers that on the night of the 20th of August, 1885, two cows belonging to the plaintiff, without his knowledge or fault, broke out of the inclosure in which he had them safely confined, and wandered upon the defendant's railroad track, at a point where said railroad crossed a public highway in said county of Hamilton; and while on, or in the vicinity of, said crossing, the defendant's agents in charge of its cars and locomotives ran upon and against said cows, thereby killing one, maiming and crip

pling the other, without any fault on the part I give any signals on approaching said crossof the plaintiff, and to his damage in the ing. The cow so killed was of the value of sum of $100. The plaintiff further avers sixty dollars. If, upon the foregoing facts, that said defendant, by its employes, was running its train of cars at a fast rate of speed at the time said cattle were injured and killed, and at the crossing where they were so injured, and while said defendant, by its employes, was approaching said crossing with its locomotive and train of cars, it did, by its employes, carelessly and negligently and willfully neglect to sound the whistle attached to said locomotive before it reached said crossing, or to ring the bell, or make any effort to alarm said cattle, or frighten them from the track, before they were killed and injured in the manner aforesaid; that, by rea-jury back to consider further of this verdict, son of the premises, said cattle were killed and injured by the defendant, without the fault of the plaintiff, and to his damage in the sum of $100.

the law be with the plaintiff, then we find for the plaintiff, and assess his damages at $115.00; but, if the law be with the defendant, then we find for the defendant. If the law be for the plaintiff in relation to the cow injured in the corn-field, and for the defendant as to the cow killed at the crossing, then we find for the plaintiff, and assess his damages at fifty-five (55.00) dollars. JOHN F. WHITE, Foreman." Upon the return of the jury with this special verdict, and before the discharge of the jury, the defendant objected to the verdict, and moved the court to send the for the reasons-First, that the verdict did not find facts sufficient to base a judgment upon; second, that the verdict did not find all the material facts in issue; third, that the There was a trial by jury, and at the plain- verdict did not find facts in issue, but found tiff's request the jury returned a special ver- conclusions of law; fourth, that the facts , dict, as follows: "We, the jury, find the fol- found in the verdict were evidential, and not lowing special verdict in said cause: That ultimate, facts; fifth, that the verdict found the defendant is the owner of and operates a defendant to have been negligent only as conline of railroad through the plaintiff's farm clusion of law, and did not find the facts in Hamilton county, Ind., as averred in the from which the court could determine the complaint; and on the night of August 20, question of negligence; sixth, that the ver1885, one of the plaintiff's cows, being in one dict finds the plaintiff to have been free from of his pasture-fields on said farm, passed into contributory negligence as a conclusion of another field of his, through which the de- law, without finding the facts in regard fendant's railroad passed, and wandered upon thereto. The court overruled this motion, the said track, at a point in the plaintiff's to which the defendant excepted, and, over corn-field where said road was not fenced, defendant's objection and exceptions, disand where there were no side tracks, nor high-charged the jury; which action and ruling of ways, nor streets, nor anything else to pre- the court is duly presented by bill of excepvent the defendant from fencing its said road; tions. and when upon said railroad track at said The defendant filed a motion to strike out point, in said open corn-field, where it was certain specific parts of the special verdict, not fenced, one of the defendant's passing which was overruled, and the question on the locomotives and trains ran upon and against ruling is saved by bill of exceptions. After said cow, and so maimed and crippled her as the motion to strike out parts of the verdict, to make her entirely worthless. Before she the defendant filed its motion for a venire de was so injured she was reasonably worth novo. After the overruling of the motion for fifty-five (55) dollars. We further find that a venire de novo, the defendant filed his moon the same night another of the plaintiff's tion for a new trial, which was overruled, and cows, without his fault, broke through his exceptions reserved. The defendant then pasture fence, in which he had her safely filed a motion for judgment in its favor on confined, and, the night being so dark, the the special verdict by the jury. This motion plaintiff, after diligent searching, was unable being overruled, the defendant then moved to find her that night, and during the night for judgment in its favor upon the special she went upon defendant's track, at a point verdict as to the injury, loss, and damage to where the same crosses a public highway; the plaintiff by reason of the killing of that and while upon said crossing the defendant's one of the plaintiff's cows found to have been train passed, and without sounding any struck upon a public road crossing, and whistle before reaching said crossing, or mak-moved the court to find and render judgment ing any attempt to frighten said cow from for the defendant in so far as the value of said crossing, passed by at a high rate of said cow is concerned, which motion was speed, and, in so doing, purposely, and by overruled, and exceptions, and, on the moreason of not sounding any alarm, ran over tion of the plaintiff, the court rendered judgsaid cow with its locomotive in said county, ment in favor of the plaintiff on the special and killed her. Had the whistle been sounded verdict for $115 and costs. The assignments before reaching said crossing, or the speed of of error are: First, the overruling of the the train slackened, said cow would not, in demurrer to third paragraph of amended our judgment, have been killed, but the kill- complaint; second, that neither the second ing was caused by the defendant's servants nor third paragraphs of the amended comin charge of its train, willfully and pur-plaint states facts sufficient to constitute a posely, negligently failing and refusing to cause of action; third, that the court erred

« ForrigeFortsett »