Fowler v. Newsom , No. 21,373.

Docket NºNo. 21,373.
Citation90 N.E. 9, 174 Ind. 104
Case DateDecember 10, 1909
CourtSupreme Court of Indiana

174 Ind. 104
90 N.E. 9

FOWLER et al.
v.
NEWSOM et al.1

No. 21,373.

Supreme Court of Indiana.

Dec. 10, 1909.


Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Proceedings by Searl B. Newson and others before the board of commissioners for the location and opening of a highway, in which Inman H. Fowler and another file a remonstrance. The board decided against the petitioners, who appealed to the circuit court, where the judgment of the commissioners was reversed, and Inman H. Fowler and another appeal. Affirmed.

[90 N.E. 10]


Wm. L. Cavens and Inman H. Fowler, for appellants.
Henry W. Moore, for appellees.

MONKS, J.

This is an appeal from a judgment establishing a public highway.

It is first insisted by appellants that the court below erred in overruling their motion to dismiss the appeal from the board of commissioners to said court. One of the grounds of said motion was that the court below had no jurisdiction over the subject of the action because the record of the proceedings of the board of commissioners, as set out in the transcript filed in said cause, did not show that said board approved, disapproved, or otherwise acted upon the report of the first viewers, and that for this reason all the subsequent acts and proceedings of the said board of commissioners were without jurisdiction and void, and said court below had no jurisdiction thereof on appeal. It appears from the record that this proceeding was commenced by appellees before the board of commissioners at the April term, 1906, that viewers were appointed at said term, to view said proposed highway as required by the statute. Said viewers made a report, “giving a full description of the location of said highway,” in all respects as required by section 7651, Burns' Ann. St. 1908, and finding that said proposed highway would be of public utility. This report was filed with the county auditor on April 16, 1906. Afterwards, at the May term, 1906, of said board, appellants Fowler and Collins each filed a remonstrance against the proposed highway “as not being of public utility” and for damages. Reviewers were appointed by the board at said term, as required by sections 7653, 7657, Burns' Ann. St. 1908, in cases where remonstrances for damages and inutility are filed. At the June term of said board, 1906, said reviewers reported that said proposed highway would not be of public utility. Said board thereupon rendered judgment against the petitioners, the appellees in this appeal, denying said petition. From this judgment of the board of commissioners the petitioners appealed to the court below, where appellants filed said motion to dismiss said appeal on the ground heretofore mentioned.

The auditor filed with his transcript in the court below all the papers in said cause, including the report of said first viewers. Said first viewers' report fully complied with the requirements of the statute, and was sufficient. Lake Erie, etc., Co. v. Shelley, 163 Ind. 36, 38-40, 71 N. E. 151. It would have been proper practice to have shown in the proceedings of the board at said May term, 1906, that said report was made by said first viewers, but the failure to do so did not deprive the board of jurisdiction of said

[90 N.E. 11]

cause, or make its subsequent acts in said cause void. The filing of remonstrances by appellants for damages and inutility made it the duty of the board to appoint reviewers as provided in sections 7653, 7657, Burns' Ann. St. 1908, without making an order establishing said highway on the report of said first viewers. From the record, which includes the report of said first viewers, it will be presumed that said board received said report for the reason that they were not authorized to appoint reviewers, as they did, until after said first viewers had reported in favor of the public utility of said proposed highway. Sections 7652, 7653, 7657, Burns' Ann. St. 1908. Said first viewers' report was a paper in said cause and a part of the record.

The other ground for the motion to dismiss the appeal was that “no appeal bond was ever tendered, filed, or approved to appeal said cause from the board of commissioners, and that the report does not show that any appeal was taken or that any appeal bond was ever tendered, filed, or approved.” Section 123, Acts 1905, p. 579, c. 167, being section 7793, Burns' Ann. St. 1908, authorizes appeals from the board of commissioners to the circuit court within 30 days from the decision of the board in cases like this by filing a bond with surety and penalty to be approved by the auditor of such county. There is nothing in the statute requiring that the record of the proceedings before the board of commissioners or the transcript filed by the auditor in the circuit court should show that an appeal was prayed or taken from the decision of said board to the circuit court or that the appeal bond should be incorporated or mentioned in said record or transcript. Section 6023, Burns' Ann. St. 1908; Demaree v. Johnson, 150 Ind. 419, 421, 422, 49 N. E. 1062, 50 N. E. 376. Before the motion to dismiss the appeal was ruled upon by the court, appellees filed an affidavit showing that an appeal bond had been filed in said cause with, and approved by, the auditor of said county within the time prescribed by law providing for appeals in such cases, that said bond was lost or destroyed, and also filed therewith a written request for permission to file a substituted appeal bond. The court granted said request, and appellees filed a substituted appeal bond, which was approved by the court. “To said ruling and decision of the court touching the filing of said bond appellants excepted.”

It is insisted by appellants that, “before a substituted bond can be filed in the circuit court for one alleged to have been filed in the auditor's office and approved by him, proof of such filing and approval by the auditor and the name of the surety thereon must be made by the affidavit of the auditor, and, if the name of the surety is not remembered by the auditor, the affidavit of the surety to the effect that he signed the appeal bond must be filed, or the affidavit of some one else who knows the facts why such information is not furnished must be filed.” As there is no statute prescribing the kind or character of the evidence necessary to establish the filing and approval of an appeal bond in cases like this, nor the manner of proving such filing and approval, the same may be established by affidavit as was done in this case. Appellees were not required to prove the same by the affidavit of the county auditor or the surety on the bond. Appellants had the right to show by the affidavit of the county auditor that no such bond was ever approved by him, but the record does not show that appellants have any evidence on this question. There is no law requiring that said appeal bond, filed by...

To continue reading

Request your trial
19 practice notes
  • Hitt v. Carr, No. 8529.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 22, 1915
    ...and incompetent as to others, in whose behalf it is offered, it is not reversible error to exclude it when so offered. Fowler v. Newsom, 174 Ind. 104, 113, 90 N. E. 9;Malone v. Stickney, 88 Ind. 594, 597. [9] Where it is competent as to part, it would not, however, be reversible error to ad......
  • McPherson v. State, No. 22,158.
    • United States
    • Indiana Supreme Court of Indiana
    • November 26, 1912
    ...no question is presented for review in this case, even if [99 N.E. 986]the record disclosed the misconduct alleged. Fowler v. Newsom, 174 Ind. 104, 111, 90 N. E. 9, and cases cited; Ewbank's Man. § 49. [6] It is also insisted by appellant that there is no evidence that the killing was done ......
  • Guyer v. Union Trust Co. of Indianapolis, No. 8071.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 5, 1914
    ...assignment of error that the court erred in overruling the appellants' motion for a new trial presents no question. Fowler v. Newsom, 174 Ind. 104, 90 N. E. 9;Meyer v. Meyer, 155 Ind. 569, 58 N. E. 842;Gough v. State, 32 Ind. App. 22, 68 N. E. 1043;Johnson v. Blair, 32 Ind. App. 456, 70 N. ......
  • Adams v. State, No. 22,202.
    • United States
    • Indiana Supreme Court of Indiana
    • October 18, 1912
    ...the alleged misconduct of said counsel for the state is presented for review in this case. Ewbank's Manual, § 49, p. 73; Fowler v. Newsom, 174 Ind. 104, 111, 90 N. E. 9. [4] We have, however, read the parts of the argument of said counsel for the state set out in a special bill of exception......
  • Request a trial to view additional results
19 cases
  • Hitt v. Carr, No. 8529.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 22, 1915
    ...and incompetent as to others, in whose behalf it is offered, it is not reversible error to exclude it when so offered. Fowler v. Newsom, 174 Ind. 104, 113, 90 N. E. 9;Malone v. Stickney, 88 Ind. 594, 597. [9] Where it is competent as to part, it would not, however, be reversible error to ad......
  • McPherson v. State, No. 22,158.
    • United States
    • Indiana Supreme Court of Indiana
    • November 26, 1912
    ...no question is presented for review in this case, even if [99 N.E. 986]the record disclosed the misconduct alleged. Fowler v. Newsom, 174 Ind. 104, 111, 90 N. E. 9, and cases cited; Ewbank's Man. § 49. [6] It is also insisted by appellant that there is no evidence that the killing was done ......
  • Guyer v. Union Trust Co. of Indianapolis, No. 8071.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 5, 1914
    ...assignment of error that the court erred in overruling the appellants' motion for a new trial presents no question. Fowler v. Newsom, 174 Ind. 104, 90 N. E. 9;Meyer v. Meyer, 155 Ind. 569, 58 N. E. 842;Gough v. State, 32 Ind. App. 22, 68 N. E. 1043;Johnson v. Blair, 32 Ind. App. 456, 70 N. ......
  • Adams v. State, No. 22,202.
    • United States
    • Indiana Supreme Court of Indiana
    • October 18, 1912
    ...the alleged misconduct of said counsel for the state is presented for review in this case. Ewbank's Manual, § 49, p. 73; Fowler v. Newsom, 174 Ind. 104, 111, 90 N. E. 9. [4] We have, however, read the parts of the argument of said counsel for the state set out in a special bill of exception......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT