Chicago, C., C. & St. L. Ry. Co. v. City of Bloomington

• Decision Date: 12 June 1914
• Docket Number: No. 22448.,22448.
• Citation: 105 N.E. 561,182 Ind. 236
• Court: Indiana Supreme Court
• Parties: CHICAGO, I. & L. R. CO. v. CITY OF BLOOMINGTON.

182 Ind. 236

105 N.E. 561

CHICAGO, I. & L. R. CO.

v.CITY OF BLOOMINGTON.

No. 22448.

Supreme Court of Indiana.

June 12, 1914.

Appeal from Circuit Court, Lawrence County; Oren O. Swails, Judge.

Action by the City of Bloomington against the Chicago, Indianapolis & Louisville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 52 Ind. App. 510, 98 N. E. 188.

E. C. Field, of Chicago, Ill., Brooks & Brooks, of Bedford, and H. R. Kurrie, of Chicago, Ill., for appellant. Ira C. Batman and Miers & Corr, all of Bloomington, for appellee.

MORRIS, J.

Minnie Woodworth recovered judgment for $5,000 against appellee for damages sustained by reason of a defective sidewalk. On appeal to the Appellate Court the judgment was affirmed. City of Bloomington v. Woodworth (1907) 40 Ind. App. 373, 81 N. E. 611. The city paid the judgment and accrued costs on December 3, 1907, and thereafter sued appellant for the amount paid, on the theory that it was appellant's duty to have kept the defective sidewalk in repair. To this complaint appellant in January, 1908, filed an answer in two paragraphs; the first of which was a general denial. The second paragraph is termed a plea of former adjudication, and avers that Minnie Woodworth, in March, 1905, filed her complaint against the city. This is followed by a copy of the complaint, and averments to the effect that the city answered by general denial, and notified appellant to appear and defend the suit; that appellant refused to appear and defend; that there was a trial, resulting in a verdict and judgment for plaintiff in the sum of $5,000; that the effect of the judgment was to determine that the city was solely guilty of the negligence charged in the complaint. The court sustained a demurrer to the paragraph, and the case proceeded to trial on the issue formed by the general denial. The court found the facts specially, and stated its conclusions of law thereon in favor of the appellant, and on January 8, 1910, rendered judgment for costs in favor of appellant. The court found that the city had, on December 3, 1907, paid the Woodworth judgment, together with interest and costs, etc., amounting to $5,966.70. The city appealed the case to the Appellate Court, assigning as error the court's conclusions on the facts stated.

The judgment was reversed, with instructions to restate the conclusions of law and render judgment for the city for $5,966.70, with accrued interest from December 3, 1907. City of Bloomington v. Chicago, etc., R. Co. (1912) 52 Ind. App. 510, 98 N. E. 188. Appellant thereafter filed a motion in the Appellate Court to transfer the cause to this court, because, as alleged, by reason of the accrued interest, it would be necessary for the trial court, in obedience to the mandate, to render judgment for more than $6,000, the limit of the jurisdiction of the Appellate Court. This motion was overruled, and appellant filed its petition to transfer the cause to this court under the provisions of section 1394, Burns 1914. The petition was overruled by this court on February 19, 1913. The opinion of the Appellate Court was certified to the court below on February 22, 1913, and, on motion of appellee, the court restated its conclusions of law, and rendered judgment pursuant to the mandate of the Appellate Court. Appellant thereafter, at the March, 1913, term of the Lawrence circuit court, filed a motion for a new trial, assigning as grounds therefor, among other things, that the special findings of the court, filed more than three years prior thereto, were not sustained by sufficient evidence. The motion was overruled.

The errors here assigned are predicated on the alleged errors in sustaining the demurrer to appellant's second paragraph of answer, in overruling the motion for a new trial, and on the restated conclusions of law on the facts found.

[1] There was no error in overruling the motion for a new trial. The statutory limit for filing it had expired more than three years before it was filed. Section 587, Burns 1908. This court cannot consider the alleged error in the ruling on the demurrer to appellant's second paragraph of answer. The question might have been presented in the previous appeal by assigning cross-errors. Appellant failed to do this, and thereby waived any right to its consideration on a subsequent appeal, which presents...