Clift v. Brown

• Decision Date: 19 April 1884
• Docket Number: 11,072
• Parties: Clift et al. v. Brown et al
• Court: Indiana Supreme Court

95 Ind. 53

Clift et al. v. Brown et al

No. 11,072

Supreme Court of Indiana

April 19, 1884

From the Henry Circuit Court.

D. W Chambers, J. S. Hedges, L. P. Mitchell and W. Grose, for appellants.

OPINION

Colerick C.

The appellees and others presented to the board of commissioners of Henry county, at its June session, 1882, a petition for the location of a public highway. Viewers were appointed to view the same, and they reported that the proposed highway would be of public utility, and that they had laid out and marked the same. Before any action was taken by the board upon this report, a remonstrance against the location of the proposed highway was filed by the appellants, on the ground that it would not be of public utility, and reviewers were appointed to view the same, who reported that it would be of public utility, and thereupon the appellants remonstrated against its location on the ground that, if it was located and opened as proposed, it would pass through their lands and thereby cause them great damage, and asked the board to appoint reviewers to assess the damages, and reviewers were accordingly appointed for that purpose, and they reported that the appellants Elisha Clift and Waterman Clift would be damaged in the sum of $ 150 each, and the appellants John Cray and Sallie Cray in the sum of $ 30. Upon the presentment of this report, the board determined that the damages so assessed were greater than the utility of the proposed highway would justify the payment of out of the county treasury, and, therefore, that the proposed highway should not be established, as prayed for. From this decision the appellees appealed to the circuit court, and there the appellants moved to dismiss the appeal for the following reasons:

1. Because the appeal was only taken by a portion of the plaintiffs, and not by all of them.

2. Because the condition of the appeal bond was not in the form required by the statute.

3. Because the appeal bond was not approved by the county auditor.

Before this motion was determined, the appellees were required by the court to file, and did file, a new bond, in proper form which was approved by the court, and thereupon the motion to dismiss the appeal was overruled. The action was submitted to a jury for trial, who found that the proposed highway would be of public utility, and that the appellants would not be damaged by reason of its location and opening, and, over motions for a new trial and in arrest of judgment, judgment was rendered against the appellants, from which they appeal, and assign as errors for its reversal: 1. That the court erred in overruling the motion to dismiss the appeal. 2. That the court erred in overruling the motion in arrest of judgment. 3. That the court erred in overruling the motion for a new trial.

No error was committed in overruling the motion to dismiss the appeal. The record shows that both of the appellees appealed from the decision of the board, and they alone prosecuted the appeal. If the appeal bond was defective in form or substance, and was not approved by the county auditor, as asserted by the appellants, the defects and informalities complained of were remedied and cured by the new bond that was given. The statute provides: "In all cases where an appeal shall be taken from a justice of the peace, board of county commissioners, viewers, or commissioners to assess damages, or from any other person or tribunal, to the circuit court, and the appeal bond filed in such case shall be defective in substance or form, or for want of proper approval, such case shall not be dismissed on account of such defect or informality, if the appellant will, when required by the court to which such appeal is taken, file in such court a sufficient bond, with surety to the acceptance of such court, in such sum as such court shall require." R S. 1881, section 1283. See Meehan v. Wiles, 93 Ind. 52; Crumley v. Hickman, 92 Ind. 388. The appellants, in their brief, urge other reasons in support of the motion to dismiss the appeal that are...