Lemasters v. Williams Coal Co., 25,963

• Court: Supreme Court of Indiana
• Citation: 189 N.E. 414,206 Ind. 369
• Docket Number: 25,963
• Parties: Lemasters v. Williams Coal Company
• Decision Date: 09 March 1934

189 N.E. 414

206 Ind. 369

Lemasters
v.
Williams Coal Company

No. 25,963

Supreme Court of Indiana

March 9, 1934

From Pike Circuit Court; Ralph E. Roberts, Special Judge.

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.

OPINION

[206 Ind. 370] 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.

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 [189 N.E. 415] 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 the appellant has raised no question for us to consider in his motion for a new trial, there remains the question, presented by the appellant, that neither the board of commissioners nor the circuit court had jurisdiction of the subject matter of the action and for this reason all proceedings had before either the board of commissioners or the circuit court were void and of no effect.

It is fundamental that the objection that there is no [206 Ind. 372] jurisdiction of the subject matter may be interposed at any time, and that such an objection needs for its exhibition neither a formal motion, nor a bill of exceptions. McCoy v. Able (1891), 131 Ind. 417, 30 N.E. 528.

"An objection to the jurisdiction of the court over the subject matter may be interposed at any time before the final disposition of the cause and may be raised for the first time in this court, where it appears on the face of the record." Fisher v. Blunhardt (1914), 182 Ind. 603, 107 N.E. 466.

"If the circuit court...