Orton v. Tilden

• Decision Date: 15 March 1887
• Citation: 10 N.E. 936,110 Ind. 131
• Parties: Orton and others v. Tilden and others.
• Court: Indiana Supreme Court

110 Ind. 131

10 N.E. 936

Orton and others

v.Tilden and others.

Supreme Court of Indiana.

March 15, 1887.

Appeal from circuit court, La Porte county.Wile & Osborn, for appellants. Mortimer Nye, for appellees.

HOWK, J.

At the June term, 1883, of the board of commissioners of La Porte county, appellees, John F. and Walter S. Tilden, presented to such board their petition in writing, wherein they, as citizens of Cass township, in such county, represented that in the year 1857 a public highway was established by the board of trustees of such township, described as follows, to-wit: Commencing on the west side of section 2, at the half-mile stake, and running thence north on the section line, dividing sections 2 and 3, township 34 N., of range 4 W., there intersecting a road, in Clinton township, leading to Bigelow's Mills; that the highway so laid was then and there by said trustees established of the width of 40 feet; that said highway had, since the action of said trustees of Cass township, been traveled and worked as a public highway, and had been and still was a work of public utility, and of great convenience to the public; and that said highway was not sufficiently described on the record of said trustees, nor was the order locating said road full and ample, as by law required. Wherefore the appellees asked that said highway be ascertained, surveyed, and entered of record as by statute provided. Appellants Orton and Black appeared and filed their remonstrance before the county board. Thereafter, after hearing the evidence, the county board found that the highway described in appellees' petition was attempted to be established by the trustees of Cass township, and that the same had been used as a highway more than 20 years, but that the same was not sufficiently recorded; and thereupon the board ordered that the same be established as a highway, 40 feet wide, and that the same be recorded as such. From this order of the county board all the appellants herein, Orton, Black, and Bowman, appealed to the La Porte circuit court. There the cause was tried by a jury, and a verdict was returned finding that the road mentioned and described in the petition herein had been used and laid out as a public highway, but not sufficiently described, to the width of 35 feet. Over the appellants' motion for a new trial, the court adjudged and decreed that the road in the petition described, to-wit, (description omitted,) had been used and laid out as a public highway, but not sufficiently described, to the width of 35 feet, and that the same ought to be ascertained, described, and entered of record, as such public highway, in the proper record of the board of commissioners of La Porte county; and such board was directed to so ascertain, describe, and enter of record the said highway. It was also adjudged that appellees recover their costs and charges herein, taxed, etc., of and from the appellants.

Errors are assigned here by appellants, which were intended to call in question the overruling (1) of their motions to dismiss the proceedings herein; (2) of their demurrer to appellees' petition; (3) the sufficiency of the facts stated in such petition to entitle appellees to the relief asked for; and (4) the overruling of appellants' motion for a new trial.

Under our decisions, appellants' assignment of errors, predicated upon the overruling of the motions to dismiss and of the demurrer to the petition, presents no question here for our consideration. All three of the appellants-Orton, Black, and Bowman-joined in one and the same assignment of errors, and this assignment constituted their joint and only complaint in this court. It was necessary, therefore, that each paragraph or specification of error in such joint assignment should be founded upon a ruling against all the appellants, and of which all of them had the right to complain, or it would not be good as to any of them. Like a complaint in the trial court, the assignment of errors here must be good as to all who join therein, or it will not be good as to any of them. This is the settled rule, as declared in many of our decided cases. Eichbredt v. Angerman, 80 Ind. 208;Feeney v. Mazelin, 87 Ind. 226;Williams v. Riley, 88 Ind. 290;Boyd v. Pfeifer, 95 Ind. 599; Robbins v. Magee, 96 Ind. 174;Hinkle v. Shelley, 100 Ind. 88; Boyd v. Anderson, 102 Ind. 217, 1 N. E. Rep. 724.

Appellants have also assigned here, as error, that appellees' petition herein was insufficient to entitle them to the relief prayed for, in that it did not state facts sufficient therefor. Appellees' counsel insists that this error cannot be considered here, because such petition does not appear in the record, save as it was copied into the transcript of the proceedings before the county board, which transcript was sent up to the court below on the appeal thereto, and is set out in the record now before us. Counsel claims that, after the case reached the court below, the petition was amended by appellees, and that this amended petition ought to have appeared in the record of this cause. If this be true, and it was important to the appellees that the amended petition should be brought into the record, they should have applied to this court for a certiorari for that purpose. But the clerk of the court below has certified that the record before us is “a full, true, and complete transcript of all the pleadings filed and proceedings had” in this cause. To us this record, so certified, in the absence of any showing to the contrary, “imports absolute verity.” We are bound to conclude, therefore, that the petition appearing in the record was the only pleading filed on behalf of the appellees in this cause, and that it is the same petition the sufficiency of which is challenged by appellants' assignment of error in this court.

It must be borne in mind that the error we are now considering calls in question the sufficiency of appellees' petition, after verdict and judgment thereon, for the first time in this court. In such a case, of course, it must appear that material facts essential to the existence of the cause of action attempted to be stated have been wholly omitted, before this court would be authorized to reverse the judgment below for error assigned here upon the alleged insufficiency of the petition, ( Laverty v. State, 9 N. E. Rep. 774, and cases cited;) for, if the defects in the petition were such as might have been obviated by the evidence on the trial, they must be held to have been cured by the verdict and judgment on the petition, when it is sought to take advantage of such defects by the error assigned here. Burkett v. Holman, 104 Ind. 6, 3 N. E. Rep. 406, and cases cited. The only objection urged by appellants to the sufficiency of the petition is that it does not set forth the names of the owners of the lands through which the alleged highway passed. Whether or not the names of such owners should be stated in a petition, under section 5035, Rev. St. 1881, to have the county board ascertain, describe, and enter of record an alleged public highway, is a mooted question, in regard to which our decisions are not very harmonious. The section as it now reads has been in force since March 5, 1867, and provides as follows: “All public highways which have been, or may hereafter be, used as such for twenty years or more, shall be deemed public highways; and the board of county commissioners shall have power to cause such of the roads used as highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described, and entered of record.”

As originally enacted on June 17, 1852, this section simply provided that all public highways, which had been or might thereafter be used as such for 20 years or more, should be deemed public highways; and, in that form, the section continued in force from May 6, 1853,...