Isley v. City of Attica

• Decision Date: 29 October 1915
• Docket Number: No. 8748.,8748.
• Citation: 109 N.E. 918,59 Ind.App. 694
• Parties: ISLEY v. CITY OF ATTICA.
• Court: Indiana Appellate Court

59 Ind.App. 694

109 N.E. 918

ISLEY

v.CITY OF ATTICA.

No. 8748.

Appellate Court of Indiana, Division No. 1.

Oct. 29, 1915.

Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge.

Eminent domain proceeding by the City of Attica, in which Jacob P. Isley appealed on an original complaint on the question of damages. Judgment for defendant on motion to dismiss the entire proceeding, overruling plaintiff's motion for judgment on the verdict in his favor for damages, and plaintiff appeals. Affirmed.

Fred S. Purnell, of Attica, and Lucas Nebeker, of Covington, for appellant. Charles R. Milford, of Attica, for appellee.

FELT, J.

The city council of the city of Attica, Ind., in pursuance of Acts 1905, § 8700 et seq., and section 8959, Burns' 1914 Statutes, ordered the opening of Brady street in said city through a tract of real estate owned by appellant, and, over his remonstrance, adjudged the benefits to his real estate equal to the damages sustained by him by the condemnation of his land.

Appellant makes no complaint as to the regularity of the proceedings, but, being aggrieved by the decision of the council on the amount of damages, appealed to the Fountain circuit court by filing an original complaint under the provisions of sections 8704, 8705, Burns' Statutes 1914. On trial of the case the question of the amount of damages was submitted to a jury, and on December 21, 1912, a verdict was returned in his favor for $1,000 damages in excess of his benefits. On December 30, 1912, at the same term of court, the city of Attica moved the court to dismiss “the entire condemnation proceeding *** commenced by the common council, and as appealed as to the question of damages.” Appellant filed a motion in writing for judgment on the verdict. The court sustained the motion to dismiss, and overruled appellant's motion for judgment on the verdict, to each of which rulings appellant duly excepted. The court rendered judgment, in substance, that the proceedings described in appellant's complaint be dismissed at the cost of the city, and that such proceedings be set aside and held for naught, and that the plaintiff recover of and from the city his costs. The errors assigned question the correctness of the court's ruling on each of said motions.

Section 8704, supra, provides that any remonstrator who is aggrieved by the decision of the board of council may within 20 days take an appeal to the circuit or superior court, but provides that:

“Such appeal shall affect only the assessment or award of the person appealing.”

The next section provides the manner of taking the appeal, and that:

“The court shall rehear the matter of such assessment de novo, and confirm, lower or increase the same as may seem just. In case such court shall reduce the amount of benefit assessed against the land of such property holders, or increase the amount of damages awarded in his favor, the plaintiff in such suit shall recover costs, otherwise not. The judgment of such court shall be final, and no appeal shall lie therefrom.”

The statute authorizes no appeal from the action of the board or council in such proceedings, except on the question of damages or benefits, and expressly provides that on such questions the judgment of the circuit or superior court to which the appeal is taken “shall be final, and no appeal shall lie therefrom.”

[1] While the wording of the motion to dismiss and the language of the judgment may indicate an attempt to dismiss the proceedings ab initio, the effect of the ruling was to dismiss the complaint by which under the statute the appeal was taken. The circuit court obtained no jurisdiction of the proceedings, except on the question of benefits and damages, and therefore had no jurisdiction to dismiss the proceedings instituted before the common council. The proceedings to condemn and appropriate the land for street purposes remained in the city council, and the appeal in no way affected the same, except on the questions of benefits and damages.

[2][3] Treating the ruling as a dismissal of the appeal to the circuit court after verdict and before judgment, the assignment presents the question of the appellee's right to such dismissal. In the absence of a controlling statute, the general rule is that, where a municipal corporation is proceeding to take private property for street or other public purposes, it may discontinue the proceeding or abandon the appropriation at any time before the award of benefits and damages is finally ascertained and confirmed by the municipal board or council which has jurisdiction of the proceeding, or before final adjudication, where an appeal to a court is authorized and duly taken, subject to the payment of accrued costs and to a...