Indianapolis And Western Railway Co. v. Hill
| Decision Date | 10 December 1908 |
| Docket Number | 21,160 |
| Citation | 86 N.E. 414,172 Ind. 402 |
| Parties | Indianapolis and Western Railway Company v. Hill et al |
| Court | Indiana Supreme Court |
Rehearing Denied June 3, 1909.
From Hendricks Circuit Court; Thomas J. Cofer, Special Judge.
Condemnation proceedings by the Indianapolis and Western Railway Company against Charles B. Hill and another. From a judgment for defendants, plaintiff appeals.
Reversed.
Otis E Gulley, W. H. Latta and L. H. Oberreich, for appellant.
Brill & Harvey and Samuel Ashby, for appellees.
OPINION
an incorporated interurban railway company, filed, on July 23, 1906, its complaint in the office of the clerk of the Hendricks Circuit Court, thereby seeking to condemn and appropriate certain real estate situated in Hendricks county, Indiana, for the use of the right of way of its railroad. Numerous landowners, whose lands were affected, were made parties defendant. Among these were Charles B. Hill and Emma Alice Hill, his wife, appellees in this appeal. The condemnation proceedings were instituted under the eminent domain act of 1905, and amendments thereto . Such action was had in court as resulted in the entering of an interlocutory order appointing appraisers to assess damages to the several property owners for the lands sought to be taken. On August 17, 1906, the appraisers made their award and report and filed the same in the office of the clerk of the Hendricks Circuit Court. They awarded damages to Charles B. Hill for his real estate appropriated, to the amount stated in their report. On August 21, 1907, said Hill, under section eight of the statute in question (§ 936 Burns 1908), filed in the office of the clerk of the Hendricks Circuit Court his written exceptions to the award of damages made to him. On August 27 said company also filed its written exceptions to the damages awarded by the appraisers to certain landowners other than Hill. On January 31, 1907, the issues, as raised and tendered upon the written exceptions filed and presented by Charles B. Hill were, by the agreement of the parties herein, submitted to a jury for trial. The trial of the cause appears to have been continued from day to day until the introduction of evidence by each of the parties was completed. Thereupon the jury was instructed by the court and subsequently returned the following verdict:
The railway company moved for a new trial, assigning the grounds prescribed by the code, among which was excessive damages, also error of the court in giving and in refusing to give certain instructions, and in rulings upon motions relative to certain evidence, etc. This motion was denied, and ninety days were granted for filing bills of exceptions. Judgment was rendered in favor of Charles B. Hill upon the verdict. From this judgment the railway company appeals, and assigns that the court erred in overruling its motion for a new trial. Counsel for appellees insist that appellant has failed to comply with the rules of this court: (1) In not setting out in its brief the original complaint filed for the condemnation of the property and the appointment of appraisers; (2) in not setting out in its entirety instruction three. They further insist that the bill of exceptions embracing the evidence was not properly made a part of the record. The first objection is without merit. No error in this appeal is predicated upon the original complaint filed for the appropriation of the land. Therefore, this complaint is not such a part of the record as is necessary to present any of the errors upon which appellees rely, consequently, under the rules of this court, it is not required to be set out in appellant's brief. In appellant's brief we find that instruction three is fully set out therein. Therefore there is no foundation whatever for appellee's second contention. Equally unsupported is the third insistence. It is true that the record discloses that the bill of exceptions containing the evidence was filed after the time granted by the court had expired, but it is shown by a statement of the trial judge in the bill itself that it was presented to him on June 6, 1907, which was within the time allowed by the court, and was taken under advisement by him, and, as is disclosed, was subsequently approved, signed and filed by him. The delay of the trial judge in signing and filing the bill would not deprive appellant of the benefit thereof in this appeal. § 660 Burns 1908, § 629 R. S. 1881.
In addition to the statement in the bill of exceptions in respect to the time of its presentation to the judge, the same statement appears on the margin of the bill over the signature of the trial judge. It is this latter statement apparently which appellees' counsel claim does not comply with the statute. We concur in their contention. Under the repeated decision of this court, a statement on the margin of a bill of exceptions, disclosing the time of its presentation, is not within the requirements of the statute. Ayres v. Armstrong (1895), 142 Ind. 263, 41 N.E. 522. It is the statement in the bill itself to which we give consideration, and not to that which appears upon the margin thereof. The bill of exceptions is properly in the record. Some other minor criticisms are interposed in respect to the record, and also the failure of appellant to observe the rules of this court. These, however, are not sustained.
The court on its own motion gave to the jury a series of instructions relative to the assessment of damages arising out of the appropriation of lands in controversy. This was the only issue in the case. Among these was the following charge, numbered three: ...
To continue reading
Request your trial