Higbee v. Peed

Decision Date12 December 1884
Docket Number11,479
Citation98 Ind. 420
PartiesHigbee v. Peed et al
CourtIndiana Supreme Court

From the Henry Circuit Court.

Judgment is affirmed, with costs.

C. S Hernly and S. H. Brown, for appellant.

J. M Brown and J. M. Morris, for appellees.

OPINION

Zollars, C. J.

This is a proceeding under the law of 1881, section 4273, et seq., R. S. 1881, for the establishment of a drain. After various rulings by the court below, and a trial of facts, the drain was established. We are asked to reverse the judgment because of alleged erroneous rulings in striking out portions of appellant's remonstrance, excluding certain offered evidence, and in the rendition of the final judgment.

The petition for the drain was filed in August, 1882. On the 5th day of September following, the court referred the matter to the commissioners of drainage, and by the same order directed them to meet at the clerk's office on the 11th day of that month, proceed to view the route and file their report on the 2d day of October. The report was not filed on the day fixed, but on the 4th day of December. The record shows no order extending the time, nor is there any explanation why the report was not filed and presented at the time fixed by the court. With the statement of the cost of the drain, there is a further statement in the report as follows: "Contingent expenses, legal, engineering, etc., $ 100." Following this is a statement of the expenses incurred by the commissioners up to that time, a part of which is an attorney fee of twenty-five dollars. Appellant contends that this attorney fee should not have been included in the report because not authorized by law, and that the whole report should have been set aside and rejected, because not filed and presented at the time fixed by the court; and that, therefore, the court below was in error in ruling adversely to him upon his second cause of remonstrance. On the day following the filing of the report, appellant appeared and filed his remonstrance, the second cause of which was in the language of the second cause prescribed by the statute, "That the report of the commissioners is not according to law." R. S. 1881, section 4276.

It is contended on the part of appellees, that the second cause, although stated in the language of the statute, is too general to present the specific causes of remonstrance urged in argument. We can not resist the conclusion that in this contention appellees are correct. The second cause of remonstrance prescribed by the statute is a general and comprehensive statement, and covers the many and different particulars in which the report may not be according to law. In the generality of statement, this cause is similar to the causes for a new trial prescribed by subdivisions first and eighth of section 559, R. S. 1881, and as in that case it is not sufficient to use the general terms of the statute in assigning the causes, so a proper practice requires a holding here, that it is not sufficient to use the general terms of the statute, and that the particular cause should be specifically set forth. To adopt a different practice would be to increase the liability of error in records on appeal to this court, and necessitate the reversal of judgments upon questions not presented below, and to which the attention of the trial court may have been in no way directed. It may be, that if, in this case, the attention of the court below had been called specially, and in a proper manner, to the questions discussed here, such rulings would have been made as would have avoided this appeal.

It may be observed in passing, that the court below, in the order approving the assessments made by the commissioners, declaring the drain established, and directing one of the commissioners to construct the work, did not direct the payment of the attorney fees. When the commissioner constructing the work comes to the payment of the costs and expenses incident to the establishment of the same, presumably, he will do his duty, and pay the costs and expenses named in the first portion of section 4277, R. S. 1881, and none other.

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17 cases
  • Conrad v. Hausen
    • United States
    • Supreme Court of Indiana
    • October 9, 1908
    ...set forth specifically, and not in general terms, or no question is presented. Meranda v. Spurlin, 100 Ind. 380, and cases cited; Higbee v. Peed, 98 Ind. 420;Anderson v. Baker, 98 Ind. 587;Updegraff v. Palmer, 107 Ind. 181, 183, 6 N. E. 353, and cases cited; Osborn v. Sutton, 108 Ind. 443, ......
  • Updegraff v. Palmer
    • United States
    • Supreme Court of Indiana
    • April 20, 1886
    ...question the method of service nor the character of the proof. By thus appearing without objection, they waived these questions. Higbee v. Peed, 98 Ind. 420; Bradley v. City of Frankfort, 99 Ind. Sunier v. Miller, 105 Ind. 393, 4 N.E. 867, and authorities cited. We have many decisions in hi......
  • Osborn v. Sutton
    • United States
    • Supreme Court of Indiana
    • December 14, 1886
    ...objections must be specifically stated, or they will be disregarded. Updegraff v. Palmer, supra; Meranda v. Spurlin, 100 Ind. 380; Higbee v. Peed, 98 Ind. 420; Anderson v. Baker, 98 Ind. We agree with the counsel for the appellees that no question can be raised on appeal that was not presen......
  • Northern Indiana Land Co. v. Tyler
    • United States
    • Supreme Court of Indiana
    • May 26, 1908
    ...cited; Osborn v. Sutton, 108 Ind. 443, 447, 9 N. E. 410, and cases cited; Updegraff v. Palmer, 107 Ind. 181, 183, 6 N. E. 353;Higbee v. Peed, 98 Ind. 420, 421, 422. It is evident said first ground of exception was not sufficiently specific to present any question concerning said preliminary......
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