Fox v. Holman

• Decision Date: 31 January 1933
• Docket Number: No. 14606.,14606.
• Citation: 95 Ind.App. 598,184 N.E. 194
• Parties: FOX v. HOLMAN.
• Court: Indiana Appellate Court

95 Ind.App. 598

184 N.E. 194

FOX

v.HOLMAN.

No. 14606.

Appellate Court of Indiana, in Banc.

Jan. 31, 1933.

Appeal from Superior Court, La Porte County; Harry L. Crumpacker, Judge.

Action by Raymond M. Fox against Claude Holman and Claude Holman, Trustee of Hudson Township, La Porte County, Indiana. From judgment for defendant, plaintiff appeals. On appellee's motion to dismiss appeal.

Appeal dismissed.

Harry B. Tuthill, Walter C. Williams, and Neville V. Williams, all of Michigan City, for appellant.

Smith, Rees & Smith, of La Porte, for appellee.

CURTIS, C. J.

This was an action in the La Porte superior court by the appellant against the appellee, seeking to enjoin the appellee as township trustee of Hudson township, La Porte county, Ind., from reconstructing and repairing the culvert leading across the highway which runs adjacent to Sogany Lake, which is a fresh-water lake in said county.

The issues were formed upon the amended complaint of the appellant to which the appellee filed a general denial. Evidence had been heard upon the original complaint, and it was stipulated between the parties that the evidence so heard was all of the evidence and that it should be considered as having been given upon the issues formed by the said amended complaint and the general denial. A temporary restraining order had been granted by the trial court, but upon a hearing for a temporary injunction the court found for the appellee and dissolved the restraining order. Upon a final hearing of the cause the injunctive relief sought was denied and a final judgment was rendered against the appellant. It is from this final judgment that this appeal was prayed and perfected. A motion for a new trial was filed seasonably and overruled and an exception taken. It contained four causes or grounds as follow:

(1) The decision of the court is not sustained by sufficient evidence.

(2) The finding of the court is not sustained by sufficient evidence.

(3) The decision of the court is contrary to law.

(4) The finding of the court is contrary to law.

The error relied upon for reversal is the overruling of the motion for a new trial which contained the causes above set out.

The appellee has filed a verified motion to dismiss the appeal, which is supported by the affidavit of Ralph N. Smith, one of the attorneys for the appellee. This motion and affidavit, omitting formal parts, are as follows:

“Ralph N. Smith, being first duly sworn upon his oath says:

“That he is a member of the law firm of Smith, Rees & Smith, of La Porte, Indiana, and that he makes this affidavit for and on behalf of the Appellees herein, and shows to the Court that the Appellee, Claude Holman, is the duly and legally acting Trustee of Hudson Township, of La Porte County, Indiana, and was such trustee at all times heretofore during the progress of this suit and at the time same was filed and is still the duly and legally acting trustee of such township.

“That said affiant makes this affidavit in support of the motion of Appellees to dismiss this appeal upon the ground that the questions presented by this appeal are moot and that before this appeal was perfected the Appellee constructed and built the new culvert, the building of which was sought to be enjoined by this proceeding.

“Affiant further says that Appellant filed his complaint in the La Porte Superior Court seeking to enjoin the Appellee, Holman, as trustee of Hudson Township, from re-constructing and repairing the culvert leading across the highway which runs adjacent to Sogany Lake, which is a fresh water lake in La Porte County, Indiana.

“That a temporary restraining order was entered and issued at the time against Appellees by the Court and that upon a hearing for a temporary injunction the Court found for Appellee, and denied a temporary injunction and dissolved the restraining order. That thereafter the cause was heard and a final judgment rendered against the Appellant and denying the relief of a temporary injunction sought for in said complaint.

“That thereafter and before the filing of an appeal bond herein, or the perfecting of this appeal, the Appellee constructed said culvert across said highway in accordance with the specifications prepared therefor and constructed the said culvert upon the same level as the old culvert.

“That Appellant sought, by his complaint herein, to restrain the Appellee from the construction of said culvert, or the repairing of the same, and that by reason of the foregoing facts the errors assigned and sought to be presented by this appeal have become and are now moot questions.

“That there is no longer any substantial legal controversy between Appellant and Appellees; that in no event could any relief be granted Appellant on his complaint in this case; that the re-construction or repair of said culvert, which Appellant denominates a drain, has been fully constructed and an injunction, if granted, could not be enforced for there is no longer anything to restrain or enjoin. That in the construction or in repairing of said culvert same has been fully consummated without the violation of any order of the court and no other question is involved in this appeal other than the right to such injunction, and there being nothing to restrain or enjoin the questions presented by the...