Miller v. City of Valparaiso

• Decision Date: 11 May 1894
• Docket Number: 1,141
• Citation: 37 N.E. 418,10 Ind.App. 22
• Parties: MILLER ET AL. v. CITY OF VALPARAISO
• Court: Indiana Appellate Court

37 N.E. 418

10 Ind.App. 22

MILLER ET AL. v. CITY OF VALPARAISO

No. 1,141

Court of Appeals of Indiana

May 11, 1894

From the Porter Circuit Court.

Judgment affirmed at the costs of appellants.

N. J Bozarth, for appellants.

N. L Agnew and D. E. Kelly, for appellee.

OPINION

LOTZ, J.

The appellants brought this action against the appellee, to recover damages for the destruction and removal of a wooden building, or barn, situated upon real estate owned by them. The action was commenced before a justice of the peace, where the appellants had judgment. An appeal was taken to the circuit court, where the cause was tried by a jury, and resulted in a verdict and judgment for the appellee.

The only assignment of error properly made in this court is the overruling of the motion for a new trial.

It was undisputed on the trial, that the appellants were the owners of a certain lot within the corporate limits of the city of Valparaiso, on which there was situated a wooden building used as a barn; that the marshal of the city, acting upon the order and direction of the common council, entered upon said premises and tore down and removed said building.

On the trial, the appellee sought to justify its action on the ground that such building was within the "fire limits," as fixed by an ordinance of said city, and offered and read in evidence, over appellants' objection, the ordinance of said city, establishing and defining the "fire limits" of said city and prescribing penalties for the violation thereof. There was no error in this ruling. The ordinance was the best evidence of the boundaries. After the boundaries were established, it might then be shown by parol whether or not the property was situated within such boundaries.

It is next insisted that the court erred in permitting the appellee to introduce in evidence an ordinance or resolution of the common council, directing the city marshal to serve notice upon the appellants to remove said building, and in permitting said marshal to testify that he served said notice upon them. The undisputed evidence shows that the ordinance establishing the "fire limits" was enacted long before the building was placed on said lot. It was within the exclusive province of the municipality to define the limits and determine the kind of buildings which might be erected therein. In placing the building thereon, the appellants violated the municipal law, and the...