Sohn v. Cambern

Citation106 Ind. 302, 6 N.E. 813
Case DateMay 12, 1886
CourtSupreme Court of Indiana

106 Ind. 302
6 N.E. 813

Sohn
v.
Cambern.

Supreme Court of Indiana.

May 12, 1886.


Appeal from Rush circuit court.

[6 N.E. 814]


New & Jones, for appellant.

Smith & Henley, for appellee.


Elliott, J.

The appellant's contention is that a complaint by a citizen to recover for an injury accruing from the unlawful obstruction of a highway must show a special injury, or the action cannot be maintained. We have no doubt that the position of counsel is well assumed, (Waltman v. Rund, 94 Ind. 225;McCowan v. Whitesides, 31 Ind. 235; Ang. Highw. § 285;) but in this case the assertion of the rule stated does not determine the controversy, for a further question remains, and that is whether the appellant can now successfully avail himself of the objection urged against the complaint. There was no demurrer, and there was a special finding of facts made at his request, and we are of the opinion that, if the averment which the complaint lacks is found in the special finding, he cannot successfully attack the complaint for the first time by his assignment of errors. We do not hold that this court can look into the evidence to decide whether the lack of some allegation in the complaint was harmless, but we do hold that where there is a special finding, fully stating all facts essential to a recovery, that the defendant cannot, by attacking the complaint in his assignment of errors in this court, secure a reversal. Our statute provides that “no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment if it appear from the whole record that the merits of the cause have been fairly determined.” Rev. St. § 345. If this is the rule where an objection is presented by demurrer, there is much more reason for the application of the principle on which it rests where no objection is made until after judgment.

The special finding is, in the strictest sense of the term, part of the record; and, if it affirmatively shows that the plaintiff proved all the facts essential to a recovery, it is evident that no harm was done the defendant in trying the cause upon a defective complaint. If the complaint had been good, it would have imposed upon the plaintiff no greater burden than that of proving all the facts essential to the existence of the cause of action, and, where it appears from the special finding that all such facts were proved, it must be held that the record shows that the merits of the case were fairly determined. This conclusion is in harmony...

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32 practice notes
  • Kerfoot v. Kessener, 28412.
    • United States
    • Indiana Supreme Court of Indiana
    • 23 Febrero 1949
    ...deficient finding of facts, but must be disregarded. City of New Albany v. Endres, 1896, 143 Ind. 192, 42 N.E. 683; Sohn v. Cambern, 1886, 106 Ind. 302, 6 N.E. 813; City of Indianapolis v. Kingsbury, 1885, 101 Ind. 200, 51 Am.Rep. 749; Hammann v. Mink, 1885, 99 Ind. 279. The determination o......
  • Husband v. Cotton
    • United States
    • Court of Appeals of Kentucky
    • 26 Septiembre 1916
    ...v. Reading, 3 Allen (Mass.) 501; Jacksonville, T. & K. W. R. Co. v. Thompson, 34 Fla. 346, 16 So. 282, 26 L.R.A. 410; Sohn v. Cambern, 106 Ind. 302, 6 N.E. 813. It is not always easy to ascertain whether an obstruction constitutes a purely public nuisance, or whether there is a special inju......
  • Dantzer v. Indianapolis Union Ry. Co.
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Diciembre 1894
    ...136, 24 N. E. 96;Railway Co. v. Eberle, 110 Ind. 543, 11 N. E. 467; Railway Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813;Dwenger v. Railway Co., 98 Ind. 153; Pennsylvania Co. v. Stanley, supra. This rule, with a definition of the phrase “community in ......
  • Pennsylvania Co. v. Stanley
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Abril 1894
    ...Railway Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;Dwenger v. Railroad Co., 98 Ind. 153;McCowan v. Whitesides, 31 Ind. 235;Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813;Sunderland v. Martin, 113 Ind. 411, 15 N. E. 689;Adams v. Car Co., 131 Ind. 375, 31 N. E. 571;Gas Co. v. Tyner, 131 Ind. 277, ......
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37 cases
  • Kerfoot v. Kessener, 28412.
    • United States
    • Indiana Supreme Court of Indiana
    • 23 Febrero 1949
    ...deficient finding of facts, but must be disregarded. City of New Albany v. Endres, 1896, 143 Ind. 192, 42 N.E. 683; Sohn v. Cambern, 1886, 106 Ind. 302, 6 N.E. 813; City of Indianapolis v. Kingsbury, 1885, 101 Ind. 200, 51 Am.Rep. 749; Hammann v. Mink, 1885, 99 Ind. 279. The determination o......
  • Husband v. Cotton
    • United States
    • Court of Appeals of Kentucky
    • 26 Septiembre 1916
    ...v. Reading, 3 Allen (Mass.) 501; Jacksonville, T. & K. W. R. Co. v. Thompson, 34 Fla. 346, 16 So. 282, 26 L.R.A. 410; Sohn v. Cambern, 106 Ind. 302, 6 N.E. 813. It is not always easy to ascertain whether an obstruction constitutes a purely public nuisance, or whether there is a special inju......
  • Dantzer v. Indianapolis Union Ry. Co.
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Diciembre 1894
    ...136, 24 N. E. 96;Railway Co. v. Eberle, 110 Ind. 543, 11 N. E. 467; Railway Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813;Dwenger v. Railway Co., 98 Ind. 153; Pennsylvania Co. v. Stanley, supra. This rule, with a definition of the phrase “community in ......
  • Pennsylvania Co. v. Stanley
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Abril 1894
    ...Railway Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;Dwenger v. Railroad Co., 98 Ind. 153;McCowan v. Whitesides, 31 Ind. 235;Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813;Sunderland v. Martin, 113 Ind. 411, 15 N. E. 689;Adams v. Car Co., 131 Ind. 375, 31 N. E. 571;Gas Co. v. Tyner, 131 Ind. 277, ......
  • Request a trial to view additional results

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