Forsythe v. Kreuter

• Citation: 100 Ind. 27
• Decision Date: 22 January 1885
• Docket Number: 10,689
• Parties: Forsythe et al. v. Kreuter et al
• Court: Supreme Court of Indiana

100 Ind. 27

Forsythe et al. v. Kreuter et al

No. 10,689

Supreme Court of Indiana

January 22, 1885

From the Lake Circuit Court.

Judgment affirmed, with costs.

J. E McDonald, J. M. Butler, A. L. Mason, T. J. Wood and -- Wood for appellants.

J. B Peterson and H. O. McDaid, for appellees.

OPINION

Mitchell, J.

The record in this cause exhibits a proceeding for the location of a public highway, and for the assessment of damages. It was commenced by the petition of the appellee Kreuter and fourteen others before the board of commissioners of Lake county. After the viewers reported, Caroline M. Forsythe appeared before the commissioners and remonstrated against the granting of the road, as being of no public utility, and also for the assessment of damages. Proceedings were had before the board, which resulted in establishing the highway and assessing the remonstrant's damages at $ 110. An appeal was taken to the circuit court, where a trial was had and a verdict returned by a jury, to the effect that the proposed highway was of public utility, and assessing the damages of Mrs. Forsythe at $ 125. Overruling her motion for a new trial, the court ordered the cause to be remanded to the board of commissioners, with directions that the finding of the jury should be carried out, if they should deem the road to be of sufficient public importance, and adjudged that the remonstrant pay the costs, to which order and judgment she objected and excepted, and from which this appeal is prosecuted.

Three grounds of objection are urged by appellants' counsel in their brief:

1. That the evidence at the trial in the circuit court showed that the petition was not signed by twelve freeholders, "six of whom resided in the immediate neighborhood of the highway proposed;"

2. That the appellees' counsel indulged in remarks to the jury during the progress of the trial, which were improper, and which were calculated to prejudice the appellants' cause; and,

3. That the order of the court remanding the cause to the board of commissioners to carry out the finding of the jury, if they should deem the road of sufficient public importance, was unauthorized.

As to the first point, it is sufficient to say that the only issues tendered by the remonstrance were, that the proposed highway was not of public utility, and for the assessment of damages.

It is settled by the decisions of this court that nothing can be...