Burns v. Simmons

• Decision Date: 14 May 1885
• Citation: 101 Ind. 557,1 N.E. 72
• Parties: Burns and others v. Simmons and others.
• Court: Indiana Supreme Court

101 Ind. 557

1 N.E. 72

Burns and others

v.Simmons and others.

Supreme Court of Indiana.

Filed May 14, 1885.

Appeal from Shelby circuit court.

Love, Major & Morrison and Adams & Hackney, for appellant.

Adams & Michener and Geo. W. Cooper, for appellee.

Elliott, J.

The circuit court permitted the appellees to amend the petition which they had filed before the commissioners, praying for the establishment of a highway, and the principal question in the case arises upon that ruling. It is settled by our decisions that the circuit court may permit amendments to be made to petitions in highway cases. Hedrick v. Hedrick, 55 Ind. 78;Goodwin v. Smith, 72 Ind. 113;Porter v. Stout, 73 Ind. 5;Green v. Elliott, 86 Ind. 53, (see opinion 63.)

In Coolman v. Fleming, 82 Ind. 117, it was held that a petition in a drainage case might be amended on appeal to the circuit court even as to a jurisdictional matter, and, as sustaining this doctrine, the court cited the case of Jackson v. Ashton, 10. Pet. 480. We assume on the strength of the decisions that the circuit court had authority to permit an amendment of the petition, and we proceed to inquire whether there was any abuse of discretion in permitting the appellees to amend their petition in the manner in which they did. Although there is authority to permit amendments, and although the authority is in a measure a discretionary one, still it is not unlimited, nor is it beyond review. It is not easy to lay down a general rule upon this subject, for each case must depend upon its own particular facts, and to them the appellate court must look to ascertain whether there was not an error of judgment, or an abuse of discretion.

The amendment in this case consists in changing the description of the line of the proposed highway. In the original petition the description reads thus: “Commencing at the south-east corner of the south-west quarter of section five, township ten north, of range seven east, in said county; running thence west, on the south line of sections five and six, in said township and range, three-quarters of a mile, to the south-west corner of the east half of the south-east quarter of said section six; thence south forty-eight rods to a corner stone, there intersecting the road leading through St. Louis to Hope.”

The description in the amended petition is as follows: “Commencing at the south-east corner of the south-west quarter of section five, township ten north, of range seven east, in said county; running thence west, on the south line of section five of said township and range, to a point fifteen feet east of the north-east corner of a school lot owned by Haw Creek school township, in said county; thence north-west at an angle of nearly forty-five degrees to a point fourteen and one-half feet north of the north-east corner of said...