Stevens v. Templeton

• Decision Date: 19 April 1910
• Docket Number: No. 21,532.,21,532.
• Citation: 174 Ind. 129,91 N.E. 563
• Parties: STEVENS et al. v. TEMPLETON.
• Court: Indiana Supreme Court

174 Ind. 129

91 N.E. 563

STEVENS et al.

v.TEMPLETON.

No. 21,532.

Supreme Court of Indiana.

April 19, 1910.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Drainage proceedings by Martha M. Templeton, in which Joseph F. Stevens and others filed separate remonstrances. From a judgment against the remonstrators, they appeal. Affirmed.

E. F. Gruber and H. C. Sheridan, for appellants. Jos. P. Gray, Thos. M. Ryan, and Jas. V. Kent, for appellee.

HADLEY, C. J.

This is a drainage proceeding, begun by appellee November 15, 1905, under the act concerning drainage, approvedMarch 6, 1905 (Acts 1905, p. 456). Such orderly action was had that on September 24, 1906, the drainage commissioners filed their final report, as provided in section 4 of said act, to which report appellants filed separate remonstrances under the provisions of said section, each assigning eight identical causes of remonstrances. Appellee moved to strike out the first, third, fourth, fifth, sixth, and seventh of said causes, which motion was sustained to the first, third, fourth, fifth, and seventh, and separate exceptions properly reserved. The remonstrators proceeded to trial on causes 2, 6, and 8, and there was a finding and judgment against each of them, whereupon they appealed to this court, and on April 2, 1908, the judgment was reversed (Stevens v. Templeton, 170 Ind. 248, 84 N. E. 148); this court holding that the action of the circuit court in striking out cause No. 7 of the remonstrances was error, and reversed the cause without any specific or express ruling on the action of the lower court as applied to causes numbered 1, 3, 4, and 5. Upon a return of the case to the circuit court the mandate of this court was carried out, and the motion to strike out cause 7 was overruled and the case retried by a jury upon causes, or specifications, numbered 2, 6, 7, and 8. The verdict was again against the remonstrators, and for a second time they appeal to this court.

The errors assigned in this appeal are the overruling of appellee's motion for a new trial and the sustaining of appellee's motion to strike out specifications 1, 3, 4, and 5. The precise question presented by the motion to strike out was presented in the former appeal, and is in effect now res adjudicata. “It is settled,” says this court in Dodge v. Gaylord, 53 Ind. 369, “that if a cause be appealed to the Supreme Court, and the judgment reversed and remanded for a new trial, and a second appeal be taken, it brings up for review and decision nothing but the proceedings subsequent to the reversal.” To the same effect, see McKinney v. State, 117 Ind. 26, 27, 19 N. E. 613;Brunson v. Henry, 152 Ind. 310, 312, 52 N. E. 407. As sometimes expressed, appeals cannot be allowed by piecemeal. There must be an end to them as speedily as the contention of litigants may be advanced and decided. So it is that all questions reserved for review by an appellate court must be presented on the first appeal thereafter from a final judgment, or not at all, for thereafter all questions presented by the record will be considered finally determined by the judgment. All such questions not expressly affirmed, or reversed, will by implication be deemed affirmed. If, in disposing of the case on appeal, the court fails to give express or full consideration to questions presented, the remedy of the complaining party is by petition for a rehearing.

The eighth instruction given by the court to the jury is complained of. It was as follows: “Counsel for the remonstrators having announced at the beginning of the trial that no evidence would be offered on the seventh cause of remonstrance, you are instructed to find for the petitioner on the seventh cause of remonstrance.” Appellants claim in their brief that they made no such announcement at the beginning or during the progress of the trial; and, second, that they did offer evidence in support of the seventh cause of remonstrance. In the dispute thus appearing between the statement of the court and conduct of counsel for appellants counsel for appellee in their brief give earnest and emphatic support to the statement of the court as contained said instruction-all of which is a bit more entertaining than it is useful in a decision of the question. If,...