Indianapolis & W. Ry. Co. v. Hill

Citation172 Ind. 402,86 N.E. 414
Decision Date10 December 1908
Docket NumberNo. 21,160.,21,160.
PartiesINDIANAPOLIS & W. RY. CO. v. HILL et al.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Hendricks County; T. J. Cofer, Judge.

Condemnation proceedings by the Indianapolis & Western Railway Company against Charles B. Hill and others. From an award in favor of defendant Hill, petitioner appeals. Reversed, with instructions.Otis E. Gulley, W. H. Latta, and L. H. Oberreich, for appellant. Geo. W. Brill and Geo. C. Harvey, for appellee.

JORDAN, C. J.

Appellant, 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, Ind., 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 an act of the Legislature concerning proceedings in the exercise of eminent domain. Acts 1905, p. 59, c. 48; section 8700 et seq., Burns' Ann. St. 1908. Such action was had in court as resulted in an interlocutory order being entered 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 8 of the statute in question, filed in the office of the clerk of the Hendricks circuit court his written exceptions to the award of damages made to him. On the 27th of the same month appellant company also filed its written exceptions to 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 appellee 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: We, the jury, find for the defendant, Charles B. Hill, and assess his damages at $1,125.00. Simon Hadley, Foreman.” Appellant moved for a new trial, assigning in the motion the grounds prescribed by our Civil Code, among which was excessive damages, also error of the court in giving and refusing certain instructions and rulings upon motions relative to certain evidence, etc. This motion was denied, and 90 days were granted for filing bills of exception. Judgment was rendered in favor of appellee Charles B. Hill upon the verdict of the jury. From this judgment appellant company appeals, and assigns that the court erred in overruling its motion for a new trial.

Counsel for appellee insist that appellant has failed to comply with the rules of this court, first, in not setting out in its brief the original complaint filed for the condemnation of the property and the appointment of appraisers; second, in not setting out in its entirety instruction No. 3. 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. Under the circumstances, therefore, this complaint is not such a part of the record as is necessary to present any of the errors upon which appellee relies. 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 3 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. Section 660, Burns' Ann. St. 1908.

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 appellee's counsel claim does not comply with the statute. We concur in their contention. Under the repeated decisions of this court, a statement on the margin of a bill of exceptions, dis-6:30> closing the time of its presentation, is not within the requirements of the statute. Ayres v. Armstrong, 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 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 3: “If you find for the defendant, it will then be your duty to determine and assess his damages. In the event you find for the defendant, then the measure of his damages is the difference between the market value of the defendant's land, described in the complaint, before the appropriation of the particular part thereof sought to be taken and the location and construction of the...

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2 cases
  • Telluride Power Co. v. Bruneau
    • United States
    • Supreme Court of Utah
    • April 18, 1912
    ...Indianapolis Co. v. Larrabee, 80 N.E. 413; Leroy v. Ross, 40 Kan. 598, 20 P. 197; McReynolds v. Burlington Co., 106 Ill. 152; Indianapolis Co. v. Hill, 86 N.E. 414; Co. v. Gilchrist, 4 Wash. 509, 30 P. 738; Atlantic Co. v. Postal Tel. Co., 120 Ga. 268, 48 S.E. 15; Chicago Co. v. Mawman, 69 ......
  • Indianapolis And Western Railway Co. v. Hill
    • United States
    • Supreme Court of Indiana
    • December 10, 1908

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