Fifer v. Ritter
| Decision Date | 05 June 1902 |
| Docket Number | 19,836 |
| Citation | 64 N.E. 463,159 Ind. 8 |
| Parties | Fifer v. Ritter et al |
| Court | Indiana Supreme Court |
From Fulton Circuit Court; A. C. Capron, Judge.
Proceedings by Daniel W. Ritter and others to open highway, wherein William Fifer files remonstrance for damages. From a judgment for petitioners, remonstrant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
W. B Hess, G. W. Holman and R. C. Stephenson, for appellant.
S Parker and H. A. Logan, for appellees.
Appellees filed before the board of commissioners of Marshall county their petition for a public highway, and afterwards, upon a favorable report of the viewers, appellant filed his remonstrance for damages. The reviewers awarded him a small amount, from which award he appealed to the circuit court, where the verdict of the jury was against him. A new trial was granted him, whereupon the venue was changed to the Fulton Circuit Court. In the latter court the jury also returned a verdict adverse to appellant.
Some attempt has been made to bring before us the sufficiency of the report of the first viewers, by invoking consideration of appellant's motion to reject the same filed before the commissioners upon the presentation of said report. The question, however, can not be considered for two reasons: (1) Because the motion to reject is not brought into the record by bill of exceptions, or otherwise; and (2) because, on appeal to the circuit court, the motion was not renewed or presented. It has been decided by this court very many times that such cases on appeal to the circuit court are triable de novo; and while, on appeal, no question can be considered that was not presented to the commissioners,--those questions that were so presented must be brought forward and properly presented in the circuit court, the same as if they had not been raised below. Trittipo v. Beaver, 155 Ind. 652, 58 N.E. 1034, and cases collated.
The record does disclose that after the first trial in the circuit court, and after the case had gone into another county for trial and a large amount of costs had accumulated, appellant requested leave of the court to refile his motion to reject the viewers' report presented to the commissioners. The court refused to open the issues and permit the motion to be filed, which action was but the exercise of a reasonable discretion, and is not reviewable.
This appeal is from the judgment of the circuit court, and, under the state of the record, the judgment comes here upon the assumption that all the proceedings in the case up to and including the appointment of reviewers to assess appellant's damages were valid. This narrows the appeal to the single assignment which calls in question the action of the court in overruling the motion for a new trial.
Complaint is made of certain instructions given to the jury. Number two informed the jury that they were the exclusive judges of the credibility of the witnesses and of the weight of their testimony, and that in determining these things they must take into consideration the interest, the appearance upon the witness stand, the intelligence, the opportunities for learning the truth concerning the things testified about, the apparent candor and correctness of the statements as compared with the usual and ordinary nature of things. The particular assault upon the instruction is directed against the word must, as being an encroachment upon the absolute and exclusive right of the jury. We can not adopt this view. Must is here employed in the sense of duty, and the term is equivalent to telling the jury that it was their duty to consider the matters enumerated in estimating the credibility and weight of the testimony. And it clearly was their duty. It was unquestionably their duty to decide the case according to the weight,--that is according to the convincing force, of the evidence, honestly arrived at, and just as plainly their duty to test the value of the testimony of each witness by such tests as common experience has proved to be reliable. Will any one say that a juror may discharge his duty by closing his eyes to the manner, conduct, and appearance of witnesses while delivering their testimony, and giving to the naked words of each witness full and equal probative force? The competency of evidence is one thing, and its weight another. Competency is purely a question of law for the court to declare. Its weight is a question for the jury to determine. So when a judge tells the jury that it is proper for them to consider the interest, manner, etc., of the witnesses, as it is usually phrased, he is but ruling as he may rightly rule that such evidence is competent; and, in searching for the fact established by the evidence, it is the duty of the jury to consider all competent evidence that may throw light upon the truth, and it is no less essential to a correct result, and quite as much the jury's duty to consider facts and circumstances properly before them, which go to discredit a witness or to strengthen his testimony, as it is to consider the statements made by the witnesses. The cases of Woollen v. Whitacre, 91 Ind. 502, Unruh v....
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