Cleveland, C., C. & St. L. Ry. Co. v. Smith

• Decision Date: 26 January 1912
• Docket Number: No. 21,424.,21,424.
• Citation: 97 N.E. 164,177 Ind. 524
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. SMITH.
• Court: Indiana Supreme Court

177 Ind. 524

97 N.E. 164

CLEVELAND, C., C. & ST. L. RY. CO.

v.SMITH.

No. 21,424.

Supreme Court of Indiana.

Jan. 26, 1912.

Appeal from Circuit Court, Putnam County; J. M. Rawley, Judge.

Proceeding to condemn a right of way by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against Alva B. Smith. From a judgment for damages, plaintiff appeals. Reversed, with instructions to grant plaintiff's motion for a new trial.Frank L. Littleton, T. C. Grooms, Enloe & Pattison, G. A. Knight, John J. Kelley, and L. J. Hackney, for appellant. George W. Brill, George C. Harvey, S. A. Hays, and Samuel Ashby, for appellee.

MORRIS, C. J.

Action for condemnation under the eminent domain act of 1905. Acts 1905, p. 59. The only question involved is the amount of damages. Appellant's right to exercise the power of eminent domain with reference to the real estate involved was determined by this court in Smith v. Cleveland, etc., R. Co., 170 Ind. 382, 81 N. E. 501. The cause was submitted to a jury for determination, which returned a verdict for appellee for $9,500. From a judgment on that verdict, appellant prosecuted this appeal.

The errors assigned here are the action of the lower court in changing the venue of the action to the Putnam circuit court and in overruling appellant's motion for a new trial. The cause originated in the Hendricks circuit court. On the verified motion of appellant for a change of venue from the county, the venue of the action was changed to the circuit court of Putnam county. Appellant objected to having the case sent to Putnam county, because, it is alleged, a prejudice existed there against appellant and its cause of action. It is claimed the Hendricks circuit court abused its discretion in the matter of selecting the county to which the venue was changed.

[1] In appellant's motion for a new trial, this was not assigned as error. By failing to assign this as a cause for a new trial, appellant has waived its right to a consideration, by this court, of the alleged error. Wilson v. Johnson (1896) 145 Ind. 40, 38 N. E. 38, 43 N. E. 930;Southern R. Co. v. Sittasen (1906) 166 Ind. 257, 76 N. E. 973;Mannix v. State (1888) 115 Ind. 245, 17 N. E. 611.

[2] This was a term time appeal. The bond was filed in the court below, within the time designated, and the transcript was filed here within 60 days thereafter. The surety designated, and approved by the trial court, was the American Surety Company. The surety executing the bond was the National Surety Company. Long after appellee had appeared and filed his brief, on the merits of the case, he filed his motion here to dismiss this appeal, because the appeal bond was not executed by the surety designated and approved by the court. In his motion duly verified, he shows that he had no knowledge of the variance in sureties, until after his brief on the merits had been filed. No leave was asked to withdraw his appearance here.

The object of an appeal bond is to stay proceedings on the judgment. In a term time appeal, such proceedings are stayed without a writ of supersedeas, and no notice of the appeal is necessary. If, however, the appeal bond required by the statute (Burns 1908, § 679) is not filed at all, or not filed within the designated time, or pursuant to the court's order, the appeal cannot operate other than as a vacation appeal, which requires notice to be served on appellee, to make him a party to the appeal, and, if it is desired to stay proceedings on the judgment, requires the issuance of a writ of supersedeas. Burns' Stat. 1908, §§ 679, 680, 681, 682; Mich. Mut. L. Ins. Co. v. Frankel, 151 Ind. 534, 50 N. E. 304. An appearance by appellee, to appellant's appeal, dispenses with the necessity of notice. A joinder in error is a waiver of notice. Lowe v. Turpie, 147 Ind. 672, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233. So is the filing of a brief on the merits. Hazelton v. De Priest, 143 Ind. 368, 42 N. E. 751; Ewbanks' Manual, §§ 163, 194; Jones v. Henderson, 149 Ind. 458, 49 N. E. 443;West v. Cavins, 74 Ind. 265. An appearance cannot be withdrawn, except on leave, prayed, and granted. Rule 9 of this court. Regardless of the excusable misapprehension of facts by an appellee, under which he appeared and filed a brief on the merits, unless such appearance shall have been withdrawn, under rule 9, he has no ground on which to predicate a motion for dismissal because of lack of the statutory notice required in a vacation appeal, or because of appellant's failure to comply with the statutory requirements of a term time appeal, which are designed to subserve the same purpose as the notice required in a vacation appeal. The motion to dismiss is overruled.

Appellant assigned 105 causes for a new trial in its motion therefor. Those for which a consideration has not been waived the appellee seeks to obviate, by asserting and maintaining 146 propositions. Appellee insists that the complaint is not in the record. This proposition is based on the fact that the clerk in making the order book entry in the case, used the word “petition,” instead of the word “complaint,” in reciting the filing thereof. This court was constituted for the purpose of correcting substantial errors of lower courts, and does not consider barren technicalities. Without setting out appellee's points, it is sufficient to say that the pleadings and evidence are properly in the record.

[3] An extension of time was granted to appellant to file its bill of exceptions containing the evidence, under the act of 1905, p. 45. Appellee claims this act is invalid because in conflict with section 1 of the fourteenth amendment to the Constitution of the United States. There is no such conflict.

[4] Appellee insists that the appeal should be dismissed under rule 6 of this court because Martha E. Smith, wife of appellee, was not made a party. Appellee's wife was made a party defendant to the complaint when filed. In the order appointing appraisers it was expressly found that she had no interest in the damages to be awarded, and that all damages should be awarded to appellee. She did not except to this order, or appeal therefrom. The warrant to the appraisers directed that the award should be made to appellee alone. Appellee excepted to the award, but Mrs. Smith did not. The verdict and judgment was in favor of appellee alone. Mrs. Smith was not a party to the judgment below, and was not a necessary party to the appeal, and consequently there is no merit in appellee's motion to dismiss the appeal. Alexander v. Gill, 130 Ind. 485, 30 N. E. 525;Mueller v. Stinesville, etc., Co., 154 Ind. 230, 56 N. E. 222; Ewbanks' Manual Prac. § 146; Ward v. Yarnelle, 173 Ind. 535, 91 N. E. 7;Smith v. Gustin, 169 Ind. 42, 80 N. E. 959, 81 N. E. 722.

In 1869, one John W. Smith was the owner of a farm in Hendricks county, consisting of a quarter section containing 160 acres, a 40-acre tract lying east of the southeast quarter of the 160-acre tract, and a 12-acre tract lying south of the eastern half of the entire tract. In 1869, appellant's predecessor, the Indianapolis & St. Louis Railway Company, condemned a right of way for its railroad, almost east and west in direction, through the Smith farm. This right of way was 100 feet wide through the 40-acre tract and 110 feet wide through the 160-acre tract. At the same time, to secure materials “to make the roadbed,” there was condemned on each side of the 110 feet right of way through the 160-acre tract, a strip 120 feet wide. Over 80 acres of the farm was south of the right of way condemned. The buildings on the farm were all north of the railroad. White Lick creek flows through the farm, from north to south, and east of the center thereof. In 1870, after the road was constructed, fences were erected on the lines of the right of way, and thereafter maintained. The dwelling house of Smith was near the west line of the farm. Near this was the principal barn, and other outbuildings. Across the railroad, south of these buildings, was a tract containing over 40 acres, lying west of the creek. This was not touched by any highway. From the completion of the railroad in 1870, to the time of John W. Smith's death, which occurred in 1883 or 1884, the only means of communication, used in transporting farm products and machinery, between this 40-acre tract, and the tract north of the railroad, was a crossing over the railroad, south of Smith's residence. This crossing was entered through gates maintained in the fences along the right of way. On the death of John W. Smith, appellee, his son, inherited the farm and has owned it ever since. Until the commencement of this action, the crossing was used continuously and uninterruptedly by the owner of the farm, since 1870, for hauling grain, farming implements, threshing machinery, and driving stock, between the west 40-acre tract, south of the railway, and the portion of the farm north thereof. Evidence was given showing that by reason of the width of the creek, the nature of its banks, and the nature of its bed, it was not practicable to cross it for hauling farm products or machinery between the tracts on the east and west sides of the creek, south of the railroad.

The two 120-foot strips, condemned for material for roadbed, were, after the completion of the roadbed in 1870 to the commencement of this action, in the continuous and exclusive possession of the owner of the farm, and were separated from the right of way by fences, and were used by the owner for farming and pasturage purposes. From portions of these strips, quantities of earth had been removed in 1869, to make the roadbed. A public highway, called the Plainfield road, ran north and south through the farm about 70 rods west of the east line thereof. At the railroad crossing this highway was within a few feet of the east bank of the creek, the creek there being farther east than at any other point in the farm. East of the creek, and on the south side of...