61 Ind. 388 (Ind. 1878), Gossett v. Tolen

Citation:61 Ind. 388
Opinion Judge:Perkins, J.
Party Name:Gossett v. Tolen
Attorney:C. D. Browder, for appellant. L. M. Campbell, R. P. Parker and J. B. Elam, for appellee.
Court:Supreme Court of Indiana
 
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Page 388

61 Ind. 388 (Ind. 1878)

Gossett

v.

Tolen

Supreme Court of Indiana

May, 1878

From the Marion Circuit Court.

The judgment is reversed, with costs, and the cause remanded for further proceedings, in accordance with this opinion.

C. D. Browder, for appellant.

L. M. Campbell, R. P. Parker and J. B. Elam, for appellee.

OPINION

Perkins, J.

Suit to collect and enforce the lien of an assessment of benefits accruing from the construction of a ditch.

Answer in general denial.

The cause came, by change of venue, from Hendricks to Marion county for trial.

Trial by the court; finding and decree for the plaintiff; motion for a new trial denied; motion in arrest of judgment, assigning no reason therefor, overruled, and final judgment for the plaintiff.

The reasons assigned in the motion for the new trial were as follows:

"1. The finding of the court is not sustained by sufficient evidence;

"2. The finding of the court is contrary to law;

"3. The court erred in admitting in evidence, over the objection of the defendant, a copy of the assessment, taken from Miscellaneous Record No. 2, of the recorder's

Page 389

office of Hendricks county, which was dated December 7th, 1876;

"4. The court erred in admitting in evidence, over the objections of the defendant, the notice of the time and place of beginning of the appraisers in making the assessment of benefits and damages to the lands of the defendant, and served upon him and dated the 21st day of May, 1874;

"5. The court erred in permitting the plaintiff, over the objections of the defendant, to introduce evidence to prove that three disinterested freeholders of the county where the lands benefited and damaged by said ditch are situated, were appointed by the commissioners of Hendricks county to make the assessment, after the plaintiff's attorney had made his opening address, and after the defendant's attorney had closed his address to the court herein;

"6. That the court erred in admitting in evidence, over the objection of the defendant, the copy of the petition of the plaintiff, taken from the auditor's office of Hendricks county, to the county commissioners thereof, dated the 11th day of March, 1874;

"7. That the court erred in refusing to permit the defendant to introduce evidence tending to show that the...

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