Conaway v. Ascherman

• Decision Date: 14 March 1884
• Docket Number: 9140
• Citation: 94 Ind. 187
• Parties: Conaway v. Ascherman et al
• Court: Indiana Supreme Court

94 Ind. 187

Conaway v. Ascherman et al

No. 9140

Supreme Court of Indiana

March 14, 1884

From the Ohio Circuit Court.

J. B Coles and W. S. Holman, for appellant.

S. R Downey and R. L. Davis, for appellees.

OPINION

Elliott J.

Questions are made in this court by answers filed to the assignment of errors, which first require attention.

The answer of Charles French shows that he was not a party to the action in which the judgment was rendered and that he disclaims all interest in the controversy. The record sustains this answer, and as to him the appeal is dismissed and judgment will go in his favor for costs.

The other appellees answered the assignment of errors in four paragraphs. The first is that the certificate of the clerk is not dated upon a "day certain or ascertainable." This we regard as an insufficient answer, for the reason that the date of the certificate does not affect the substantial rights of the parties.

The second paragraph is that there is a defect of parties in this, that Oatman and Cutler, who were plaintiffs below, are not made parties to the appeal. We find the names of these appellees duly given in the assignment of errors, and that brings them before the court, for the reason that the appeal was taken during the term. We gather from the record these dates: Judgment was rendered on the 11th day of September, 1880, and the appellant was given until the first Saturday of the then ensuing term to file an appeal bond. The bond was filed within the time prescribed, and the transcript was filed in this court on the 16th day of December, 1880, less than sixty days after the filing of the appeal bond. As the appeal was taken in such a manner as to render a notice unnecessary, nothing more was requisite than to properly name the parties in the assignment of errors.

It is argued that the answer presents a question of fact for trial. We think otherwise. Where the face of the record fully shows that the appeal was so taken as to render notice unnecessary, and the assignment of errors shows that the parties are properly named and included therein, the court will decide the question upon the record unless there is a plea directly impeaching the record in some method and for some cause recognized by the rules of law.

The third paragraph of the answer alleges that the board of commissioners were directed to pay $ 100 out of the county treasury as the share of the county towards paying the damages assessed in favor of property owners injured by the opening of the highway described in the petition, and they are not made parties to this appeal. The answer is plainly bad. It was not necessary to make the commissioners parties.

Having disposed of these preliminary questions we now come to the main case.

The appellees petitioned the board of commissioners of Ohio county to change and relocate a highway, and the appellants appeared before the board and resisted the petition. Their first step was to move to dismiss the petition for the following reasons: 1st. The petition does not state sufficient facts. 2d. The petition does not fully set out the names of the owners of the land through which it is proposed to change the highway. 3d. The petition does not set out the names of the owners of the land over which the highway sought to be changed is located. 4th. Because the description of the proposed highway is not sufficiently definite. 5th. The petition does not sufficiently describe the way sought to be vacated. 6th. The notice of the petition was not sufficient. 7th. The change is not of public utility. 8th. The petition is not signed by twelve freeholders. 9th. The petition does not state that the change will be of public utility. This motion was overruled by the commissioners, was renewed in the circuit court on appeal, and again overruled, and the question properly saved.

The description of the line of the proposed highway is reasonably certain, and this is sufficient, for technical accuracy is not required. A description which...