City of Plymouth v. Milner

• Decision Date: 14 February 1889
• Citation: 20 N.E. 235,117 Ind. 324
• Parties: City of Plymouth v. Milner.
• Court: Indiana Supreme Court

117 Ind. 324

20 N.E. 235

City of Plymouth

v.Milner.

Supreme Court of Indiana.

February 14, 1889.

Appeal from circuit court, Marshall county; Isaiah Conner, Judge.

Action by Emily Milner against the city of Plymouth for injuries received by reason of defective streets. Verdict and judgment for plaintiff, motion for new trial overruled, and defendant appeals.

A. C. Capron, for appellant. V. P. Kirk, for appellee.

Coffey, J.

This was a suit to recover damages on account of an injury sustained by the appellee, occasioned by the alleged defective and dangerous condition of the streets in the city of Plymouth. The complaint is in three paragraphs, differing in no material respect, except in the description of the condition of said streets. A demurrer was filed to the complaint by the appellant, which was overruled, and an exception taken. Issues were formed and a trial had by jury, which resulted in a verdict and judgment for the appellee for the sum of $25. The appellee has filed a written motion in this court to dismiss the appeal because the amount involved, exclusive of interest and costs, does not exceed $50. The statute¹ limiting appeals to cases involving $50 and upwards does not apply to cases commenced in the circuit court. It applies to cases originating before a justice of the peace or the mayor of a city only; and as this case was commenced in the circuit court, the motion must be overruled.

The errors assigned in this court are: (1) That the court erred in overruling the demurrer to the complaint; (2) that the court erred in overruling the motion of appellant to dismiss the action; and (3) that the court erred in overruling the motion for a new trial. The demurrer to the complaint is joint, and is directed to the complaint as a whole. While the first paragraph is, perhaps, defective in not alleging that the injury occurred without the fault or negligence of the appellee, the second and third, we think, state a good cause of action, and the court did not, therefore, err in overruling the demurrer. Where a demurrer is addressed to an entire pleading containing one good paragraph it should be overruled. Stanford v. Davis, 54 Ind. 45;Washington Tp. v. Bonney, 45 Ind. 77;Jewett v. Draining Co., 39 Ind. 245;Railroad Co. v. Cox, 37 Ind. 325.

It appears by the record that, after the appellee had testified in the cause, the jury was excluded from the court-room at the request of the appellant, and it then, by counsel, moved the court to dismiss the action upon the ground that her testimony did not sustain the complaint. This motion was overruled, and excepted to. In this the court did not err. After the close of the testimony in the cause, if the appellant was of the opinion that it was not sufficient to sustain a verdict for the appellee, it should have asked the court to instruct the jury to return a verdict in its favor.

The facts in this case, as they appear by the evidence in the record, are that Plum street in the city of Plymouth runs north and south. Jefferson street runs east and west, crossing Plum street near the...