Indianapolis v. Hood

• Decision Date: 18 March 1892
• Citation: 30 N.E. 705,130 Ind. 594
• Parties: INDIANAPOLIS, D. & W. RY. CO. v. HOOD et al.
• Court: Indiana Supreme Court

130 Ind. 594

30 N.E. 705

INDIANAPOLIS, D. & W. RY. CO.

v.HOOD et al.

Supreme Court of Indiana.

March 18, 1892.

Appeal from circuit court, Vermillion county; A. F. WHITE, Judge.

Proceedings for laying out a highway were had before the board of commissioners on the application of William B. Hood and others, and the Indianapolis, Decatur & Western Railway Company appealed to the circuit court. From a judgment dismissing the appeal to the circuit court the railway company appeals. Affirmed.

R. B. F. Pierce, for appellant. Conley & Sawyer, for appellees.

ELLIOTT, C. J.

Proceedings for laying out a highway were prosecuted before the board of commissioners of Vermillion county. The appellant did not appear, but, after the decision of the board in favor of the petitioners, appealed the case to the circuit court. In that court it offered to file a remonstrance, but the court denied its request. In support of its offer an affidavit was filed. The appellees insist that the affidavit shows no excuse for the failure to file the remonstrance before the board of commissioners. The affidavit states that a former attempt to open the highway was prevented by an order from the federal court, the railroad corporation at that time being in the hands of the counsel who here represents it as a receiver; that he then prepared to resist a second attempt to open the highway. We quote from the affidavit the following: “And the affiant says that after the filing of the petition herein he prepared, on the part of said railway company, to resist this second attempt to open said highway, and he arranged with Robert B. Sears, a member of the bar of this court, to file a remonstrance and a claim for damages before the board of commissioners, and said Sears assured this affiant that he would do so; that when the matter came before the board for action affiant was engaged elsewhere, and could not be present, and so notified said Sears, but relied upon said Sears, as attorney for the company, to file the remonstrance and claim for damages, and affiant believed that he would do so, but before affiant was aware that said remonstrance and claim for damages had not been filed the commissioners had acted finally upon said petition, and adjourned; that, as soon as he learned of said action, he appealed this case to this court.” It is firmly settled that in cases of this character objections must be appropriately presented to the board of commissioners, or they cannot be made available in the circuit court on appeal. Green v. Elliott, 86 Ind. 53, and cases cited; Wells v. Rhodes, 114 Ind. 467, 16 N. E. Rep. 830; Forsythe v. Krewter, 100 Ind. 27;Lowe v. Ryan, 94 Ind. 450;Budd v. Reidelbach, 128 Ind....