Bd. of Com'rs of Carroll County v. O'Conner

Decision Date06 April 1894
Citation137 Ind. 622,37 N.E. 16
PartiesBOARD OF COM'RS OF CARROLL COUNTY et al. v. O'CONNER.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

On rehearing. Petition overruled.

For prior report, see 35 N. E. 1006.

M. Winfield, Quincy A. Myers, Emory B. Sellers, William E. Uhl, John H. Gould, and Geo. R. Eldridge, for appellants. Pollard & Pollard, for appellee.

HACKNEY, J.

The first question argued upon the petition for a rehearing is that the judgment is excessive. Counsel are in error in the assumption that this question was argued, either in the briefs or the oral argument upon the original hearing, upon any other theory than that no recovery could be sustained for the building and tearing down of the first substructure. However, if we believed that the recovery was excessive, we would not incline to stand upon the technical rule of practice, and deny the reduction to a proper amount; but we have considered the question, and find that, if we were right in the holding, it was proper to permit a recovery for extra work and materials in tearing down the first work and constructing the second. The verdict-$11,314.94-was authorized by the evidence, if we include $258.51 for interest from the completion of the work until the finding by the jury. A calculation discloses that the sum so included, probably as interest, was not excessive, but was, at 6 per cent., for a shorter period than was allowable. An error into which appellants seem to have fallen is in assuming that the theory of the complaint adopted the report of the superintendent upon the completion of the second structure. If the complaint had so proceeded, the recovery might have been excessive.

Again, it is insisted that the superintendent had no power to direct the tearing down of the first substructure, and the building of another at the expense of the counties. It is conceded, however, that, under the authorities cited in the original opinion, such power existed when the work was that of a single county. But it is said that there is such difference between the statutes relative to the appointment and powers of superintendents, where the work is by one county, or by two or more counties, that the authorities so cited do not apply here. The statutory provision for the appointment of superintendents by one county is as follows: “For the erection of any such bridge, the said board may appoint one or more discreet persons as superintendents thereof” (Rev. St. 1894, § 3278); while that for the appointment of superintendents for two counties is as follows: “It shall be the duty of said boards of county commissioners, while in joint session, to appoint one or more persons...

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