Dager v. Indiana Suburban Sewers, Inc.
| Decision Date | 11 September 1970 |
| Docket Number | No. 369S59,369S59 |
| Citation | 261 N.E.2d 858,254 Ind. 137 |
| Parties | Fred A. DAGER and Helen M. Dager, Gerald L. Dager and Bernette B. Dager, Appellants, v. INDIANA SUBURBAN SEWERS, INC., Appellee. |
| Court | Indiana Supreme Court |
Fay W. Leas, Leas, Hines & Snyder, Fort Wayne, for appellants.
Paul W. Philips, Helmke, Philips & Beams, Fort Wayne, Arthur H. Gemmer, Gemmer & Frosch, Indianapolis, for appellee.
ON PETITION FOR REHEARING
Appellants have filed a petition for rehearing. Appellee has filed a motion to dismiss appellant's petition for rehearing. In its motion appellee takes the position that since this Court has previously dismissed an attempted appeal by the appellants there is no jurisdiction to entertain a petition for rehearing.
We do not accept appellee's position in this regard. We, of course, will entertain a petition for rehearing timely filed in any appeal though that appeal may have been dismissed by this Court. App. Rule 11, Ind.Rules of Procedure. The appellee's motion to dismiss appellants' motion for rehearing is hereby denied.
We now come to the merits of the appellants' petition for rehearing. Appellants state that this Court is incorrect and erroneous in its decision in the following:
'(a) That at the same time the Court appointed appraisers, the Appellee filed a motion for an order to compel the Appellants to temporarily remove wrecked automobiles that were stored on the strip of ground which was the subject of the condemnation.'
This Court would call appellants' attention to the fact that this information is contained in the transcript beginning at page 29, line 23, wherein the facts above set out are specifically recited.
'(b) That the award of the appraisers in the light of the Court's instruction included the cost of removing the automobiles.'
Appellants claim this is an untrue statement. We would call their attention to the transcript, page 37, lines 4 through 10, wherein it is stated:
'* * * it being particularly noted by the Court that plaintiff has made no objection to defendants requests (sic) instruction that the damages which said appraisers are to assess are to include just compensation for the removal and return to the construction easement area of the personal property now located thereon and belonging to defendants * * *'
'(c) That the Appellants accepted and withdrew the amount of the award.'
Appellants claim this is untrue. It is true that appellants after first accepting the award of the appraisers did petition the court to withdraw said acceptance.
We do find that we were in error in stating that the appellants had in fact withdrawn the amount of the award. It does appear from the record that the amount is still in the Clerk's office. However, this has no bearing on the outcome of the case.
'(d) That the Appellants did not file exceptions to the appraisers' report within the ten (10) days provided by statute.'
Appellants claim this is an untrue statement. A diligent search of the record in this case which was before this court at the time of our opinion failed to disclose any filing of exceptions to the filing of the...
To continue reading
Request your trial
-
Cua v. Ramos
...evidence by treating it as a T.R. 12(B)(6) motion, but nothing in the record so indicates, A.R. 7.2(B); Dager v. Indiana Suburban Sewers, Inc., (1970) 254 Ind. 137, 261 N.E.2d 858; Hughes v. Hughes, (1976) Ind.App., 356 N.E.2d 225; and any attack on the ruling on the motion for judgment on ......
-
Cua v. Ramos
...evidence by treating it as a T.R. 12(B)(6) motion, but nothing in the record so indicates, A.R. 7.2(B); Dager v. Indiana Suburban Sewers, Inc., (1970) 254 Ind. 137, 261 N.E.2d 858; Hughes v. Hughes, (1976) Ind.App., 356 N.E.2d 225; and any attack on the ruling on the motion for judgment on ......
-
Weiss v. Weiss
...Heights Corporation, (1973), Ind., 302 N.E.2d 782; Fender v. Lash, (1973) Ind., 304 N.E.2d 209; Dager v. Indiana Suburban Sewers, Inc., (1970) 254 Ind. 137, 140, 261 N.E.2d 858. As Justice Prentice said in State v. Maplewood Heights Corporation, supra: 'There is nothing in the record to dis......
-
Sekerez v. Lake Porter County Regional Transp. and Planning Commission, 3--274A21
...burden of bringing before this court those portions of the record necessary for a determination of his appeal. Dager v. Ind. Sub. Sewers, Inc. (1970), 254 Ind. 137, 261 N.E.2d 858. In the case at bar, the record is materially incomplete as to an issue which could have served as the sole bas......