Roth v. Vandalia Railroad Company
| Citation | 119 N.E. 1,187 Ind. 302 |
| Decision Date | 22 March 1918 |
| Docket Number | 23,265 |
| Parties | Roth et al. v. Vandalia Railroad Company et al |
| Court | Supreme Court of Indiana |
From the Marion Superior Court (95,314); W. W. Thornton, Judge.
Action by John H. Roth and others against the Vandalia Railroad Company and others. From a judgment for the defendants, the plaintiffs appeal. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590).
Reversed.
George W. Galvin, for appellants.
Pickens Moores, Davidson & Pickens, for appellees.
This is an action by the appellants against appellees for damages for obstructing the natural channel of a stream. The jury's verdict was for the defendants, and plaintiffs appeal. The cause was submitted in the Appellate Court, August 18, 1915. Appellants' briefs were filed December 17, 1915. Appellees did nothing until eleven months and three days thereafter. They then filed a verified petition saying that they had not filed and would not file any motion to dismiss, and asked that they be permitted to file briefs. This was granted and they filed briefs on December 29, 1916.
By their briefs appellees present two contentions only: First that there is no judgment shown in the transcript, and therefore the appeal should be dismissed; secondly, that the transcript does not show that the original bill of exceptions containing the evidence was filed after being signed by the judge.
Appellants moved to strike appellees' briefs from the files upon the ground that the first contention above is a violation of the rules of the court, which appellees invoked in their verified petition for leave to file briefs. The Appellate Court postponed action on this until final hearing. In the meantime, the cause has come here under the Disparity Act.
In the transcript, following the verdict, there is written in longhand the mooted judgment. It is contended by the appellees that this was not written in by the clerk, and also that there is no such judgment in the order book. If this is so, appellees have had enough time to show it by certiorari. The certificate of the clerk makes the transcript import verity to us.
It is also contended that the judgment is not sufficiently formal. Great formality is not required where plaintiffs take nothing and defendants recover costs. Even the minutes of the court transcribed into the order book ought to be nearly, if not quite, enough in such a case.
Appellees' second contention is that the original bill of exceptions containing the evidence is not in the...
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Roth v. Vandalia R. Co.
......W. Thornton, Judge. Action by John H. Roth and others against the Vandalia Railroad Company and others. Judgment for defendants, and plaintiffs appeal. Transferred from the Appellate Court, under section 1405, Burns' Ann. St. 1914. ......