Bd. of Marion Co. v. Ctr. Tp.

• Citation: 105 Ind. 422,7 N.E. 189
• Parties: Board, Etc., of Marion Co. v. Center Tp., Etc., and others.
• Decision Date: 24 May 1886
• Court: Supreme Court of Indiana

105 Ind. 422

7 N.E. 189

Board, Etc., of Marion Co.

v.Center Tp., Etc., and others.

Supreme Court of Indiana.

May 24, 1886.

Appeal from Marion circuit court.

On petition for rehearing. See 2 N. E. Rep. 368.

Claypool & Ketcham, for appellant.

Byfield & Howland, Shepard, Elam & Martindale, and H. N. Spaan, for appellee.

Howk, C. J.

Center township, of Marion county, has presented in this cause a very earnest and elaborate petition for a rehearing, fortified as to matters of fact by numerous certificates and affidavits, and strongly supported by the able and exhaustive briefs of its counsel. On the other hand, a number of counter-affidavits have been filed on behalf of the Indianapolis, Decatur & Springfield Railway Company, in whose favor the judgment below is reversed, and the cause is decided by this court in the principal opinion, and also a learned and carefully prepared argument by its counsel in opposition to the petition for rehearing, The principal ground upon which the rehearing is prayed for is that the record of the cause does not speak the truth as to one matter of fact upon which our opinion is largely rested in deciding the case in favor of such railway company. The fact referred to, as specially found by the trial court, was substantially that such railway company, as the successor of the Indiana & Illinois Central Company, some time prior to the trial of the cause, had located and built its principal machine-shops within the limits of Center township. It is claimed in the petition for rehearing, and correctly so, it appears, that the fact thus found by the court at special term is not true; but, on the contrary, the fact is that the principal machine-shops of such railway company are located and built beyond the line dividing Center and Wayne townships, in Marion county, and within the limits of Wayne township. It is further claimed that this mistake of fact, as it is called, in the special finding of facts, had its origin in the mutual mistake of the counsel engaged in the cause as to the actual and true location of the principal machine-shops of the railway company. However this may have been during the pendency of the cause in the court below, it is shown with reasonable certainty, as it seems to us, that the able attorney of Center township was fully informed of such mistake of fact in the special finding of facts, and that such railway company had in fact located and built its principal machine-shops within the limits of Wayne township, and not, as specially found by the trial court, in Center township, before the oral argument of the case in this court was fully heard, or the cause was finally submitted for our decision. We were not informed of any mistake of fact in the record, but we heard and decided the cause with...