Chicago, I.&L. Ry. Co. v. Ader

Decision Date04 November 1915
Docket NumberNo. 22695.,22695.
Citation184 Ind. 235,110 N.E. 67
CourtIndiana Supreme Court
PartiesCHICAGO, I. & L. RY. CO. v. ADER et al.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by the Chicago, Indianapolis & Louisville Railway Company against Adam Ader and others, to condemn real estate for a railroad right of way. From a judgment for defendants, plaintiff appeals. Affirmed.E. C. Field, of Chicago, Ill., Thomas & Foley, of Crawfordsville, H. R. Kurrie and C. C. Hine, both of Chicago, Ill., for appellant. Hays & Murphy, of Greencastle, and Johnston & Johnston, of Crawfordsville, for appellees.

ERWIN, J.

This was an action by appellant to condemn certain real estate, belonging to appellees, for railroad right of way. The original proceedings were filed in Putnam county. Appraisers were appointed and made report, assessing the damages as to each tract of land affected. To this report of the viewers appellant filed exceptions. Trial by jury and verdict for appellees.

Appellant's assignment of errors in this court are as follows: (1) The court erred in overruling appellant's motion to amend its instrument of appropriation in said cause; (2) the court erred in overruling appellant's motion for a new trial.

During the progress of the trial, and after the defendants (appellees) had rested, appellant moved the court for leave to amend its instrument of appropriation by inserting therein the following:

“Said railway company will make good and restore any damages, done to the tile drainage now in place in and under the right of way sought to be appropriated by this instrument of appropriation, which may hereafter occur by reason of the occupancy and use of the lands of the several owners sought to be appropriated, and the right is granted to said several owners to put in such additional tile drainage as they severally may see fit in and across said lands so appropriated. And said railway company agrees to and will, at its own expense, put in and maintain such part of said additional tile drainage, if any, as may be required, under its right of way so acquired, adjoining the lands of said several owners.”

[1] This application to amend was supported by affidavit of appellant's engineer and the attorneys for appellant, showing that it was at the trial that they first learned that appellees were claiming that the building of the road upon their land would affect their drainage. To this motion and affidavits, appellees filed a counter showing, in which they aver that this motion was made after they had rested their case and had discharged their witnesses, and that all their witnesses resided in Putnam county, and that they could not secure their return at that time or in time to be heard at the trial of said cause. The whole matter was submitted to the trial court and the offered amendment was rejected. The right to amend pleadings during the trial is within the sound discretion of the trial court, and its refusal to permit an amendment is not error unless it is shown that the court has abused its discretion. Evansville Terminal R. Co. v. Heerdink, 174 Ind. 537-540, 92. N. E. 548;Whitcomb v. Stringer, 160 Ind. 82, 66 N. E. 443;Chicago, etc., R. Co. v. Hunter, 128 Ind. 213, 27 N. E. 477; 31 Cyc. p. 398 et seq.; Citizens' R. R. Co. v. Heath, 29 Ind. App. 395, 62 N. E. 107. We are of the opinion that the trial court has not abused its discretion.

In the motion for a new trial appellant seeks by its first two causes to raise the question of the refusal of the court to allow the amendment and to withdraw the case from the jury and grant a continuance. What we have heretofore said disposed of this assignment.

[2] In the third, fourth, and fifth causes for a new trial appellant alleges that the recovery is excessive. The evidence not being in the record, no question is presented to this court for review on that point. Besides this ground for a new trial applies to actions in tort only, and not to proceedings of this nature. P., C. C. & St. L. R. Co. v. Crockett, 182 Ind. 490-492, 106 N. E. 875.

[3] Cause 5 1/2 is for the reason that the court erred in allowing a certain question to be propounded to certain witnesses for the defense. Appellant's brief fails to show that there was any objection to the question, or any exception reserved to the ruling of the court in relation thereto; and it is not shown what the answers were, or that they answered the question at all. This presents no question for review.

[4] The sixth cause for a new trial is the court erred in giving on its own motion instructions 1 to 9, inclusive. Not having in any way pointed out wherein it is claimed these instructions are erroneous, the same is waived. Hoover v. Weesner, 147 Ind. 510, 45 N. E. 650, 46 N. E. 905;City of Ft. Wayne v. Patterson, 25 Ind. App. 547-559, 58 N. E. 747.

[5][6][7][8][9][10][11] The seventh cause for a new trial is that the court erred in giving instructions 1, 2, 3, and 4, tendered by appellees. Appellant makes no point as to instructions 1, 2, and 4; hence waives all error as to them. Instruction 3 reads as follows:

“In...

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