Baltimore & O. R. Co. v. Daegling

• Decision Date: 17 December 1902
• Citation: 30 Ind.App. 180,65 N.E. 761
• Parties: BALTIMORE & O. R. CO. v. DAEGLING.
• Court: Indiana Appellate Court

30 Ind.App. 180

65 N.E. 761

BALTIMORE & O. R. CO.

v.DAEGLING.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1902.

Appeal from superior court, Lake county; H. B. Tuthill, Judge.

Action by Fernando W. Daegling against the Baltimore & Ohio Railroad Company to recover a sewer assessment. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. H. Collins and Thomas J. Wood, for appellant. F. N. Gavit, for appellee.

ROBINSON, J.

Complaint by appellee to recover a sewer assessment. Answer, general denial. Judgment for appellee. Errors are assigned on overruling the demurrer to the complaint, and the refusal of a new trial. Counsel state, without argument, that the complaint is insufficient for failing to show title to the property in appellant since the assignment was made, and also for falling to set out a copy of the assessment, and a copy of the resolution of the town board authorizing the assessment. The complaint expressly avers ownership of the property by appellant at the time of and since the assessment. The complaint also pleads the material acts of the board leading up to and including the making of the assessment, and makes an exhibit of that part of the assessment here in question. It is not necessary in such proceedings to file as exhibits copies of the various resolutions, orders, and ordinances adopted by the council in the proceedings pertaining to the improvement. See Leeds v. Defrees, 157 Ind. 392, 61 N. E. 930;Cleveland, C., C. & St. L. Ry. Co. v. Edward C. Jones Co., 20 Ind. App. 87, 50 N. E. 319;Lewis v. Albertson, 23 Ind. App. 147, 53 N. E. 1071;Dugger v. Hicks, 11 Ind. App. 374, 36 N. E. 1085.

Causes stated in a motion for a new trial, that “the finding and judgment of the court is contrary to the evidence,” and “the judgment and finding of the court is contrary to law,” are not such causes for a new trial as the statute recognizes. No cause was assigned in the motion for a new trial that the decision of the court was not sustained by sufficient evidence. Hubbs v. State, 20 Ind. App. 181, 50 N. E. 402;Allen v. Oil Co., 27 Ind. App. 158, 60 N. E. 1003;Manufacturing Co. v. Harmon (Ind. App.) 62 N. E. 306;Gates v. Railroad Co., 154 Ind. 338, 56 N. E. 722; section 568, Burns' Rev. St. 1901.

The only remaining cause for a new trial stated in the motion is the admission of certainevidence. As counsel have not only failed to call our attention to any place in the record where they entered any objection...