Denny v. Bush

• Decision Date: 10 May 1884
• Docket Number: 9,978
• Citation: 95 Ind. 315
• Parties: Denny et al. v. Bush et al
• Court: Indiana Supreme Court

95 Ind. 315

Denny et al. v. Bush et al

No. 9,978

Supreme Court of Indiana

May 10, 1884

From the Marion Circuit Court.

E. P Ferris, J. S. Ferris, F. J. Van Vorhis and W. W. Spencer, for appellants.

F Winter and W. W. Herod, for appellees.

OPINION

Bicknell C. C.

The thirty-three appellants in this case filed their petition with the county board for the location of a highway in Pike township, in Marion county.

The board found that the petition was signed by twelve freeholders of the county, six of whom resided in the immediate neighborhood of the proposed highway, and that due notice had been given. Viewers were appointed, who reported that the road would be of public utility, and that they had laid it out on the line proposed, thirty feet in width.

The appellees and forty-three others, freeholders of said county, residing along the line of the proposed highway, filed a remonstrance against the same, alleging that it would not be of public utility. The board then appointed other viewers to examine and report as to public utility, and they reported that the highway would be of public utility.

The appellee Zachariah Bush then filed his remonstrance, claiming $ 750 damages. Reviewers were then appointed, who reported, assessing the damages of said Bush at $ 50.

At this stage of the proceedings, at the March term, 1881, of said county board, that being the fourth term after the filing of the original petition, the appellee William A. Fleming and one Eliza A. Boughton filed separate remonstrances, claiming damages, and also alleging that the road would not be of public utility. Fleming's remonstrance was dismissed on the motion of the petitioners, and said Eliza A. Boughton then dismissed her remonstrance. Thereupon the county board ordered that the highway be opened, etc.

From this final order Zachariah Bush appealed to the Marion Circuit Court, and he filed the appeal bond, with surety. No other appeal was taken. The appeal at the September term of said court was continued. At the December term, 1881, of said court, a jury was empanelled and sworn to try the cause, and after the counsel had made their opening statements, on motion of the said William Fleming, and over the objection of the petitioners, he was permitted to reinstate his separate remonstrance for damages and on account of public inutility, which had been dismissed by the county board, he having taken no appeal from such dismissal. The petitioners then moved the court to dismiss the remonstrance of said Fleming, and this motion was overruled.

The trial then proceeded, and after the petitioners had examined two witnesses, the court, over the objection of the petitioners, permitted the defendants to file a verified plea in abatement, which stated, in substance, that Eliza Roberts, one of the signers of the petition, had been induced to sign it by the written promise of two of the other signers, that if she would sign it they would build a fence for her thirty rods long and eight rails high, and would furnish the necessary rails and chunks therefor.

This plea was sworn to by said defendant Zachariah Bush; it stated that he had no knowledge or information of such inducement in time to plead it before the county board, and that he could not have discovered it with reasonable diligence before filing his remonstrance with the board.

The petitioners jointly and severally demurred to said plea in abatement, for want of facts sufficient to constitute a defence to their petition or plea in abatement in this proceeding. These demurrers were overruled.

The plaintiffs replied to the plea in abatement in four paragraphs:

1. That before said Eliza Roberts signed said petition, more than twelve freeholders of Marion county, of whom more than six resided in the immediate neighborhood of said proposed highway, had signed said petition, and that said highway is wholly in said county.

2. Stating the same facts, and naming twenty-four of such signers, and averring that only two of the thirty-three petitioners signed the petition after said Eliza Roberts signed it.

3. This was a general denial.

4. That said twenty-four signers, naming them, were all resident freeholders of said county, of whom more than six resided in the immediate neighborhood of said proposed highway; that the promise mentioned in said plea in abatement was made without the knowledge of said signers, and they never ratified it; and that public utility, necessity and convenience demanded the location of said highway.

The defendants separately demurred to each of the first, second and fourth paragraphs of said reply for want of facts sufficient. The demurrers were sustained.

The court then, over the objection of the petitioners, gave leave to both defendants to withdraw their remonstrances, and said remonstrances were withdrawn, and the court, over the objection of the petitioners, discharged the jury, and called a new jury to try the issue on the plea in abatement and the third paragraph of the reply thereto. Upon that issue the new jury found for the defendants. The petitioners moved for a new trial, for the following reasons:

1, 2 and 3. The verdict is not sustained by sufficient evidence, and is contrary to law and to the evidence.

4. Error of law occurring at the trial, in this: (a.) In permitting William Fleming to become a party defendant and to file a remonstrance after the jury had been sworn and the counsel on both sides had made their opening statements. (b.) In allowing defendants to plead in abatement, after the jury had been sworn to try the issues, and after the examination of two witnesses, remonstrances having been filed with the county board, and no matter in abatement having been pleaded before the board, and in ordering the plea in abatement to be first tried. (c.) In ordering the jury to be re-sworn, over the objection of the petitioners. (d.) In refusing to permit the petitioners to open and close the case. (e.) In refusing to permit the petitioners to prove that more than twelve resident freeholders of the county, of whom six resided in the immediate neighborhood of the proposed highway, had signed said petition--this evidence being offered before the defendants introduced evidence in support of their plea in abatement. (f.) In refusing to permit the plaintiffs to prove, after the defendants had introduced their evidence in support of the plea in abatement, and had rested, by one Harrison Foreman, that more than twelve freeholders, residents of said Marion county, had signed said petition before Eliza Roberts signed it, and that more than six of said freeholders lived in the immediate neighborhood of said proposed highway. (g.) Because the court erred in discharging the jury, over the plaintiffs' objections, upon the trial of the issues as originally formed in this case.

The motion for a new trial was overruled. The petitioners then moved the court for judgment in their favor, establishing the highway, because of the withdrawal of said remonstrances, and because the plaintiffs gave and offered to give all the evidence necessary to sustain their petition. This motion was overruled, and judgment was rendered "that the petition and proceedings of the plaintiffs be in all things abated, and that the same be dismissed" at plaintiffs' costs. To this judgment the plaintiffs excepted, and they appealed therefrom.

The following is the assignment of errors:

1. The court erred in permitting the remonstrance of William A. Fleming to be reinstated and filed in the circuit court, he not having appealed from the decision of the board of county commissioners.

2. The court erred in overruling the objections of appellants to the filing and reinstatement of the remonstrance of William A. Fleming.

3. The court erred in overruling the motion of appellants to dismiss the remonstrance of William A. Fleming.

4. The court erred in overruling the objections of the appellants to the filing of the appellees' plea in abatement.

5. The court erred in overruling the appellants' motion to proceed with the trial of the cause, and in permitting the plea in abatement to be filed.

6. The court erred in overruling the appellants' demurrer to...