Consumers' Gas Trust Co. v. Huntsinger

• Citation: 40 N.E. 34,12 Ind.App. 285
• Decision Date: 21 March 1895
• Docket Number: 1,423
• Parties: THE CONSUMERS' GAS TRUST COMPANY v. HUNTSINGER
• Court: Court of Appeals of Indiana

40 N.E. 34

12 Ind.App. 285

THE CONSUMERS' GAS TRUST COMPANY v. HUNTSINGER

No. 1,423

Court of Appeals of Indiana

March 21, 1895

From the Hancock Circuit Court.

Judgment affirmed.

R. N Lamb and R. Hill, for appellant.

H. C Ryan, for appellee.

OPINION

REINHARD, J.

We take the following substantially accurate statement of the facts of this case from the appellant's brief:

On August 29, 1891, appellant filed in the office of the clerk of the Madison Circuit Court its instrument of appropriation of a right of way to lay its pipe line in land of appellee, namely, the northwest quarter of the northwest quarter of section eighteen (18), town nineteen (19), range seven (7), in Madison county.

Proper notice of the hearing of the application for the appointment of appraisers on August 31st was given, and such proceedings were had that on the 12th of September, 1891, appraisers were appointed to assess the damages to appellee resulting from the appropriation asked for.

On September 16th, the appraisers made their report assessing appellee's damages at four hundred dollars.

On the same day, appellant paid to the clerk of the Madison Circuit Court the sum of four hundred dollars, so assessed, and costs taxed at twenty dollars and thirty cents, and filed its exceptions to the assessment of damages so made by the appraisers, and also filed an affidavit for a change of venue from Madison county.

On the 5th of October, 1891, a change of venue was granted, and the case was sent to Henry county.

On the 6th of September, 1892, appellee filed his affidavit for a change of venue from Henry county, which was granted, and the case was sent to Hancock county. This was the only action taken in Henry county.

The case was tried by a jury in Hancock county, the trial beginning on the 28th of September, 1893, and ending on the 3d day of October, with a verdict in favor of appellee for five hundred and twenty dollars.

The jury returned with their general verdict answers to interrogatories presented by appellant.

On the 11th of November, 1893, appellant filed its motion for a new trial.

Pending this motion appellee remitted all of the amount found in his favor in excess of four hundred dollars.

On the same day, May 18, 1894, the court overruled appellant's motion for a new trial, to which ruling appellant excepted, and was given sixty days to file a bill of exceptions, and the court rendered judgment for four hundred dollars damages and costs against appellant and in appellee's favor.

The assignment of errors calls in question the propriety of the court's action in overruling appellant's motion for a new trial, and rendering final judgment on the verdict.

As appears by appellant's bill of exceptions No. 1, upon the calling of the cause for trial, both parties moved for leave to open and close the case. Appellant's motion was overruled and proper exception taken, and appellee's motion was sustained and proper exception also taken. This is made the seventh ground of motion for a new trial. Appellant's contention on this point is as follows:

"Appellant sought to obtain a right of way for laying its gas mains, and made its proper application by filing its instrument of appropriation and obtaining the appointment of appraisers in accordance with the provisions of the statute in such cases. These appraisers were appointed and made their examination, and reported damages in favor of appellee to the amount of four hundred dollars. With this assessment appellee was content, but appellant contended that the assessment was too large, and filed its exceptions, and appealed from the assessment to the circuit court, and to enable it to take immediate possession of the right of way, and lay down its pipe line, it paid the money (four hundred dollars) to the clerk of the court as the statute required. It is thus apparent, beyond question, that the appellant had the burden of the issue to show that the assessment of damages was too large. This burden being upon the appellant, under section 542, R. S. 1894 (533, R. S. 1881), which provides that the party upon whom rests the burden of the issues must first produce his evidence, appellant, as it appears to us, was clearly entitled to introduce evidence showing what it claimed, namely, that the assessment of damages made by the appraisers was too large, and to open and close the case. All that appellee claimed, or could claim, under the state of facts existing at the time the trial began, was that the assessment made by the appraisers was not too large. As he had filed no exceptions to the report of the appraisers he was conclusively presumed to be content with that assessment of damages. If no evidence had been introduced by either side, the judgment in the case would necessarily have been that appellee was entitled to the four hundred dollars which the appraisers had reported in his favor. It required proof to be introduced by the appellant showing that the assessment of damages by the appraisers was too large to justify any change in the amount appellee was entitled to. This fact clearly placed the entire burden of the issues upon the appellant, and under the section above referred to, appellant was clearly entitled to introduce its evidence first, and open and close the argument in the case."

If, as appellant's counsel contend, the only issue to be tried in the court below was whether the damages assessed by the appraisers were too high, then we think the conclusion contended for by them that appellant had the burden and was entitled to the open and close, is also correct. But, is it true that this was the issue?

The position of appellee's counsel is that on appeal the case must be tried de novo, and that the only question for trial is: Is the land owner entitled to any damages, and, if so, how much?

The difference between counsel on opposite sides is this: Appellant's counsel...