Major v. Miller

• Court: Indiana Supreme Court
• Writing for the Court: Montgomery, J.
• Citation: Major v. Miller, 165 Ind. 275, 75 N.E. 159 (Ind. 1905)
• Decision Date: 04 October 1905
• Docket Number: 20,382
• Parties: Major et al. v. Miller et al

75 N.E. 159

165 Ind. 275

Major et al. v. Miller et al

No. 20,382

Supreme Court of Indiana

October 4, 1905

From St. Joseph Circuit Court; W. A. Funk, Judge.

Suit by Lizzie L. Miller and others against Ambrose J. Major and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Joseph G. Orr and E. A. Howard, for appellants.

George E. Clarke and M. A. Dittenhoefer, for appellees.

OPINION

Montgomery, J.

Appellees brought this suit to enjoin appellants from maintaining a nuisance, resulting from the manner in which a slaughter-house was conducted. Appellants answered by general denial, and a trial by the court resulted in a finding and decree for appellees. Appellants' motions for a new trial and in arrest of judgment were overruled, and exceptions properly saved.

The errors assigned are that the complaint does not state facts sufficient to constitute a cause of action; that the court erred in its conclusions of law stated upon the special finding of facts; and that the court erred in overruling the motion for a new trial, and in overruling appellants' motion in arrest of judgment.

The only objection made to the complaint is that it does not describe with sufficient certainty the premises upon which it is charged that the nuisance was created and continued. The property owned and occupied by appellee Lizzie L. Miller is described with particularity, and it is charged that the property of the other appellees lies contiguous thereto, and between said property and the premises of appellants, and all within Penn township in St. Joseph county. No objection was made to the complaint in the court below either by motion to make the same more specific, or by demurrer for want of facts. If it were conceded that the description of appellants' property was indefinite, it is apparent that the defect was such that it could and would have been readily removed by amendment. The averments of the complaint were certainly sufficient to advise appellants of the nature and location of the grievances complained of and to bar another action for the same cause; and the objection urged must be regarded as cured by the finding, and the complaint held sufficient as against an attack made for the first time in this court. Davis v. Shuah (1894), 136 Ind. 237, 241, 36 N.E. 122; Louisville, etc R. Co. v. Goodbar (1885), 102 Ind. 596, 2 N.E. 337; Stockwell v. State, ex rel. (1885), 101 Ind. 1, 17; Jackson v. Weaver (1884), 98 Ind. 307; Jones v. White (1883), 90 Ind. 255; Evansville, etc., R. Co. v. Willis (1881), 80 Ind. 225; Beal v. State, ex rel. (1881), 77 Ind. 231; Indianapolis, etc., R. Co. v. McCaffery (1880), 72 Ind. 294; Indianapolis, etc., R. Co. v. Petty (1868), 30 Ind. 261.

The conclusions of law provided for a continuation of appellants' business under such restrictions as were designed and reasonably adequate to avoid the offensive odors of which appellees complained. The special finding of facts is neither set out in full nor in substance in appellants' brief, and we would be justified in disregarding the second assignment of error. We have, however, referred to the record and examined the findings of the court, from which it appears that appellants so kept and conducted their said slaughter-house as to create and maintain a nuisance; that, on account of the manner in which appellants conducted their said business, noisome and offensive smells were created, which, carried by the atmosphere, permeated the houses of appellees with such frequency and offensiveness as to prevent the enjoyment of life and property. These facts, together with others found, were clearly sufficient to sustain the conclusions of law.

Appellants' motion for a new trial is as follows: "(1) The special findings numbered 1, 2, 16 18, 19, 20, 21, 22, 24, 25, 44, 45, 46 and 48 are not sustained by sufficient evidence. (2) The special findings of the court numbered 1, 2, 18, 19, 22, 25, 45, 47 and 48 are without the issues. (3) The special findings of the court numbered 16, 37, 38 and 40 are contrary to law. (4) ...