Budd v. Reidelbach

• Decision Date: 25 April 1891
• Docket Number: 14,899
• Citation: 27 N.E. 349,128 Ind. 145
• Parties: Budd v. Reidelbach
• Court: Indiana Supreme Court

27 N.E. 349

128 Ind. 145

Budd v. Reidelbach

No. 14,899

Supreme Court of Indiana

April 25, 1891

From the Pulaski Circuit Court.

Judgment affirmed.

J. C Nye and R. A. Nye, for appellant.

W Spangler and H. A. Steis, for appellee.

OPINION

Elliott, J.

The appellee petitioned for the construction of a public ditch viewers were appointed; they first reported adversely to the petitioner, but subsequently met under the order of the court and reported in his favor. The appellant's land was assessed. He did not, so far as the record discloses, file any motion or remonstrance in the commissioners' court nor in the circuit court. He appealed from the order of the commissioners, and insists upon a reversal of the judgment of the circuit court, upon the ground that it erred in overruling his motions for a venire de novo and for a new trial.

The verdict reads thus: "We, the jury, find for the petitioner, Reidelbach, that the proposed ditch will be of public benefit and utility; that the assessments for its construction are in proportion to its benefits; and that the route thereof is practicable." This verdict finds all that the statute under which the proceedings were had requires the board of commissioners to find. Section 4294, R. S. 1881. This we deem sufficient in view of the fact that no remonstrance was filed by the appellant. We do not mean to be understood as holding that it was necessary for the verdict to be as full as it is, for the appellant presented no issue for trial. We can not, indeed, perceive upon what ground he had a right to go to the jury. He acquiesced in the finding of the viewers because he made no objection. It has been again and again decided in this class of cases that only such objections can be relied on in the circuit court as were appropriately presented to the board of commissioners. Updegraff v. Palmer, 107 Ind. 181, 6 N.E. 353; Lipes v. Hand, 104 Ind. 503, 1 N.E. 871; Smith v. Smith, 97 Ind. 273; Rominger v. Simmons, 88 Ind. 453; Lowe v. Ryan, 94 Ind. 450; Reynolds v. Shults, 106 Ind. 291, 6 N.E. 619; Green v. Elliott, 86 Ind. 53.

In the case of Metty v. Marsh, 124 Ind. 18, 23 N.E. 702, it was said: "It has so often been adjudged by this court, in cases analogous to this, that no matter not put in issue before the board of commissioners can be tried on appeal to the circuit court, that but little can be said in elaboration of the principle."

The error of the...