Baker v. Osborne
| Decision Date | 20 February 1914 |
| Docket Number | 8,779 |
| Citation | 104 N.E. 97,55 Ind.App. 518 |
| Parties | BAKER v. OSBORNE ET AL |
| Court | Indiana Appellate Court |
From Jasper Circuit Court; Charles W. Hanley, Judge.
Action by William P. Baker against Frank Osborne and others. From a judgment for defendants, the plaintiff appeals.
Affirmed.
William H. Parkinson and John A. Dunlap, for appellant.
George A. Williams, for appellees.
This is an action begun by appellant to enjoin appellees and each of them from the collection of an assessment levied against his land in a ditch proceeding had before the Board of Commissioners of Jasper County, Indiana. The complaint proceeds on the theory that such assessment against appellant's lands was void, because he had never had any notice of such proceedings before the board, and that such assessment was made without the board having ever acquired jurisdiction of his person. A general denial to the complaint closed the issues of fact. The cause was submitted to the court for trial. There was a general finding for appellees and a judgment in their favor for costs. A motion for a new trial filed by appellant was overruled.
The errors relied on in appellant's brief present, in different form, practically the same question, viz. , that of the sufficiency of the evidence to sustain the decision of the trial court. Before going to this question it should be remarked that appellees insist that the record herein shows no final judgment within the meaning of § 671 Burns 1908, § 632 R. S. 1881, from which an appeal may be prosecuted. It is true that the judgment shown by the record is for costs only, and does not contain the usual and proper statement that plaintiff take nothing by reason of his complaint; but the absence of such statement in a final judgment is not fatal where, as in this case, the record clearly discloses a trial and a final and effectual disposition of the cause and a judgment for all costs rendered in pursuance of such disposition. State, ex rel. v. Lung (1907), 168 Ind 553, 80 N.E. 541, and authorities there cited.
It is further contended by appellees that appellant has not complied with the rules of this court by setting out in his brief a concise statement of the evidence, in narrative form and has therefore waived his right to a consideration of any question relating to the admission or sufficiency of such evidence. The evidence set out in such brief is very meager and open to the criticism that it contains statements of appellant's conclusions as to what the evidence shows rather than a recital of the evidence in narrative form, as subd. 5, Rule 22 of this court, and the decisions construing it, require. Webster v. Bligh (1912), 50 Ind.App. 56, 98 N.E. 73; Cleveland, etc., R. Co. v. Bowen (1913), 179 Ind. 142, 100 N.E. 465; Huffman v. Thompson (1912), 177 Ind. 366, 98 N.E. 113; Baker v. Gowland (1906), 37 Ind.App. 364, 370, 76 N.E. 1027. As before indicated, appellant's contention is that there was no notice of the proceeding served on him. It was important therefore, and, under the rule and authorities above cited, necessary that he set out in his brief the evidence on this subject. The brief shows that the witness Mr. Leatherman, the auditor of the county, identified the record of the ditch proceeding, "and the order filing the petition, and fixing a day for docketing and notice ordered was introduced in evidence"; that the witness identified the record in such proceeding "showing proof of notice in said proceedings by which it appears that proof of service upon appellant was not made"; that he also identified "a paper as being the proof of service by O. P. Robinson in the * * * ditch proceeding, and the same was introduced in evidence as plaintiff's 'exhibit B', by which it appears that said notice was not served upon appellant." Neither the record, showing proof of notice, nor the paper identified as the proof of notice is set out in the brief. Appellant's statement that from them "it appears that said notice was not served upon appellant" is a conclusion only and can not be said to be a condensed recital of the contents of such record or paper, and this court, without resort to the record can not know what were the contents of such record and paper.
Appellant in his brief admits that the original petition in the ditch proceeding described appellant's lands and alleged that he was the owner thereof, and that such lands would be affected by and likely be benefited by such ditch. He also admits that orders of the board were introduced in evidence showing the qualification of drainage commissioners and extension of time for filing their report, the filing of their report, the bringing in new parties, the filing of certain remonstrances, the submission and trial of the cause, the assessment confirmed as modified by the court, the establishment of the ditch, allowances of expense bills, and the assignment of the improvement to W. Frank Osborne for construction. This admission of appellant carries with it the implication that...
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