Chicago And South-Eastern Railway Co. v. Woodard
| Decision Date | 11 October 1895 |
| Docket Number | 1,631 |
| Citation | 41 N.E. 544,13 Ind.App. 296 |
| Parties | CHICAGO AND SOUTH-EASTERN RAILWAY COMPANY v. WOODARD |
| Court | Indiana Appellate Court |
From the Clinton Circuit Court.
Judgment affirmed.
W. R Crawford, U. C. Stover, S. O. Bayless and C. G. Guenther, for appellant.
A. J Shelby, for appellee.
This action was commenced before a justice of the peace. The appellee sues to recover of the appellant $ 113.50 and 4 25.00 attorney's fee, for constructing a fence along the appellant's right-of-way, where it abuts on the appellee's land. R. S. 1894, section 5324 (). The cause was appealed to the Boone Circuit Court where the venue was changed to the court below. In the trial court the appellant demurred to the complaint which demurrer was overruled and the appellant excepted. This ruling is assigned as error.
A complaint in an action before a justice of the peace is sufficient, if it contain sufficient substance to apprise the defendant of the nature of the demand, and is such that a judgment thereon will bar another action for the same claim. Milhollin v. Fuller, 1 Ind.App. 58, 27 N.E. 111; Watson v. Conwell, 3 Ind.App. 518, 30 N.E. 5; Clifford v. Meyer, 6 Ind.App. 633, 34 N.E. 23. We have examined the complaint and think when it is tested by the rule above stated, it fully answers the necessary requirements. The court did not err in overruling the demurrer.
The only remaining error relied upon is the overruling of the motion for a new trial. It is urged that the evidence is insufficient to support the special finding in several particulars. The statute requires that thirty days' notice in writing of the intention to construct the fence on the part of the land-owner, shall be served on the nearest freight-receiving and shipping agent employed by the company. The court found that this had been done. There was evidence tending to prove this fact. The appellee testified that he served the notice introduced in evidence on the agent more than thirty days before he proceeded to build the fence. On cross-examination he testified in substance that he did not remember the name of the agent he served the notice upon at Lebanon, but that he claimed to be the company's agent at Lebanon. There was no testimony for the company whatever. If the latter, or its agent at Lebanon never received any notice such as the appellee testified he served upon him, or if he was not the nearest agent, the appellant should have made proof of this fact or shown some excuse for not doing so. ...
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Chicago & S. E. Ry. Co. v. Woodard
... ... Appeal from circuit court, Clinton county; Samuel H. Doyal, Judge.Action by Edwin A. Woodard against the Chicago & Southeastern Railway Company to recover for the construction of a fence on defendant's right of way where it abutted on plaintiff's land. There was judgment for ... ...