Lemasters v. Willams Coal Comp., 25,963

• Docket Nº: 25,963
• Citation: 206 Ind. 369
• Case Date: March 09, 1934
• Court: Supreme Court of Indiana

206 Ind. 369

Lemasters
v.
Williams Coal Company.

No. 25,963

Supreme Court of Indiana

March 9, 1934

1. APPEAL---Record---Failure to Present Evidence---Questions Waived.---Where the evidence is not in the record no question can be presented by causes for new trial that the verdict is not sustained by sufficient evidence or that it is contrary to law. p. 371.

2. APPEAL---Questions Reviewable---Jurisdiction of Subject Matter---How Presented.---An objection that there is no jurisdiction of the subject matter may be interposed at any time and needs for its exhibition neither a formal motion nor a bill of exceptions. p. 372.

3. HIGHWAYS---County Highways---Jurisdiction of Board of County Commissioners.---Boards of county commissioners have exclusive original jurisdiction in all matters relating to the establishment or improvement of highways of the county. p. 372.

4. COURTS---Jurisdiction of Subject Matter---Meaning.---Jurisdiction of the subject matter means jurisdiction of the class of cases to which the particular case belongs. p. 372.

5. HIGHWAYS---Change of Location---Jurisdiction of County Commissioners---Statute.---Statute providing not upon petition of land owner to change the location of a highway wholly upon his own land, and a showing that the changed location will be equally convenient to the public, the board of county commissioners shall vacate so much of the former highway "as lies between the different points of intersection" held applicable and to confer jurisdiction upon the board where the points of intersection are the same and there are no "different points of intersection." (8596--8598, Burns 1926, 8772--8774, Baldwin's 1934.) p. 374.

Proceedings by Williams Coal Company for change of location of highway lying wholly upon petitioner's land. From a judgment for petitioner re-locating the highway and vacating the old route, the remonstrator, Thomas J. Lemasters, appealed. Affirmed.

Samuel E. Dillin, John B. Bilderback, and Thomas Duncan, for appellant. Ely & Corn, for appellee.

HUGHES, J. ---This is an action instituted before the board of commissioners by the appellee seeking permission to change the location of a highway which was wholly upon the land of the appellee. The petition alleged that the public would not be materially injured by said proposed change. The appellant and another appeared and remonstrated against the petition. The remonstrance was overruled by the board and viewers were appointed who reported that the public would be materially injured by the proposed change. The appellee then filed answers to the report of the viewers creating the issue as to whether the public would be materially injured by the change proposed in the petition. A trial was then had before the board of commissioners and a finding that the public would not be materially injured by the proposed change, and granted the appellee the right to make the change and to establish the new highway. Later, upon satisfactory proof made to the board of commissioners that the new road had been opened and improved and made equally convenient for travelers, the board made an order vacating the old road. From each of these orders made by the board, the appellant appealed to the circuit court. The appeals were consolidated and tried in the circuit court as one cause, wherein the court adjudged that the [206 Ind. 371] public would not be materially injured by the proposed change and re-location of the highway, and that the new highway had been opened, improved, and made equally convenient for travelers; and ordered the new highway established and the old one vacated.

1. The appellant filed a motion for a new trial, assigning two reasons therefor as follows: (1) The decision of the court is not sustained by sufficient evidence, and (2) the decision is contrary to law. The assignment of error is that the court erred in overruling appellant's motion for a new trial. The record does not contain any of the evidence given at the trial and for this reason the motion for a new trial, with reasons given therefor, presents no question for this court to consider. As said in Watson's Revision of Works Practice, vol. 2, 2001, p. 562, "The question whether the verdict is sustained by sufficient evidence or is contrary to law can only be determined on appeal from the evidence, together with the law applicable thereto. Therefore, in order to make either of these causes available on appeal, the record must contain all of the evidence given at the trial. Where the evidence is not in the record, the appellate tribunal will presume in favor of the verdict." Bronnenburg v. O'Bryant (1894), 139 Ind. 17, 38 N.E. 416; Fellenger v. VanValzah (1883), 95 Ind. 128; Weaver v. Kennedy (1895), 142 Ind. 440, 41 N.E. 810.

Notwithstanding...