Chicago. I.&E. Ry. Co. v. Curless

• Decision Date: 14 May 1901
• Court: Indiana Appellate Court
• Parties: CHICAGO. I. & E. RY. CO. v. CURLESS.

27 Ind.App. 306

60 N.E. 467

CHICAGO. I. & E. RY. CO.

v.CURLESS.¹

Appellate Court of Indiana.

May 14, 1901.

Appeal from circuit court, Grant county; H. J. Paulus, Judge.

Proceedings by the Chicago, Indiana & Eastern Railway Company against Arthur E. Curless to appropriate lands for a right of way. From a judgment of the circuit court in favor of the defendant on exceptions to the award of the appraisers, the plaintiff appeals. Affirmed.Steele & Kersey, for appellant. St. John & Charles and Henry & Elliott, for appellee.

ROBINSON, J.

Appellant began proceedings under the statute to appropriate land for a right of way. Both parties filed exceptions to the award of the appraisers, and the case was submitted to a jury in the circuit court. Verdict and judgment for appellee.

The first three specifications of error seek to question the denial of appellant's application for a change of venue from the county. It is held that this question cannot be raised by an assignment of error, but must be stated as a ground in a motion for a new trial, which has not been done. Walker v. Heller, 73 Ind. 46;Knarr v. Conaway, 53 Ind. 120;Bane v. Ward, 77 Ind. 153;Sidener v. Davis, 87 Ind. 342;Berlin v. Oglesbee, 65 Ind. 308;Wiley v. Barclay, 58 Ind. 577;Wilson v. Johnson, 145 Ind. 40, 38 N. E. 38, 43 N. E. 930;Bement v. May, 135 Ind. 675, 34 N. E. 327, 35 N. E. 387. It is held, however, that this rule does not apply when an appeal has been taken from an order appointing a receiver, and that in such a case a refusal to change the judge may be assigned as error, as the law in such proceeding makes no provision for a new trial. Shoemaker v. Smith, 74 Ind. 71. There is nothing in the case of Wiltfong v. Schafer, 121 Ind. 264, 23 N. E. 91, that declares a doctrine contrary to the above cases. It is true, in that case, that the refusal to grant the change was assigned as error. But there was also a motion for a new trial, and one of the grounds of that motion may have been the refusal to grant the change. Whether the question was properly raised does not seem to have been discussed. The opinion is not necessarily in conflict with the above cases.

Counsel for appellant have discussed at some length the sufficiency of the evidence to sustain the verdict. There is a very sharp conflict in the testimony of the witnesses, but there is evidence to support the verdict in appellee's favor, and in the amount of damages named by the jury. We could not disturb the verdict without weighing the evidence, and this we cannot do. There is nothing in the record that takes the case out of the general rule.

The sixth and seventh reasons for a new trial are the refusal of the court to give the sixth and ninth instructions requested by appellant. In so far as these instructions were applicable, they were included in other instructions given. In the instructions given, the jury were very clearly told what they should consider in estimating the damages, if any, to the damage of appellee's land caused by the appropriation of the right of way and the construction of the road. It is the rule in this state...