The Indiana Improvement Company v. Wagner
| Decision Date | 19 September 1894 |
| Docket Number | 17,163 |
| Citation | 38 N.E. 49,138 Ind. 658 |
| Parties | The Indiana Improvement Company v. Wagner et al |
| Court | Indiana Supreme Court |
From the Steuben Circuit Court.
The judgment is affirmed.
J. E Rose, for appellant.
J. A Woodhull, W. M. Brown and N.W. Gilbert, for appellees.
The appellees applied to the Board of Commissioners of Steuben county to incorporate the town of Hudson, in said county.
Such proceedings were had before the board that the territory described in the petition of the appellees was duly incorporated by the said board as the town of Hudson. The appellant appealed to the circuit court of the county, where there was a trial, finding, and judgment, as we construe the record, confirming the action of the board of commissioners in incorporating the town of Hudson over appellant's motion for a new trial.
The only valid assignment of error is the overruling of appellant's motion for a new trial.
This record presents another instance of a total disregard of rule 31 of this court on the part of the appellant. The record is much confused and difficult to understand at best, and that confusion is added to by the failure of appellant's counsel to place marginal notes on the transcript, as required by said rule. This cause having been advanced at the request of appellee, on account of the important public interests involved, furnishes the only reason why we do not dismiss the appeal for appellant's failure to comply with the rule.
Attorneys who bring their clients' causes to this court on appeal have not discharged their whole duty to their clients and to this court when they take out a transcript of the record from the clerk of the trial court, assign error thereon, file the same in this court, and brief the case trusting wholly to such clerk that the transcript has been properly made up. Before filing it in this court, appellant's attorney ought to carefully examine the same with a view of having the clerk correct any inaccuracies there may be in it, eliminate all repetitions and confusion, and then prepare the record for the appeal as required by the rules of this court.
None of these requirements have been observed in making up this transcript and preparing it for the appeal.
The motion for a new trial appears in two places in the transcript. Once in the order-book entries of record as appears in the transcript, and once in the bill of exceptions. The bill of exceptions is not the proper place for such motion.
An exception to the overruling of the motion for a new trial appears in the order-book entry of the motion, but no such exception appears in the bill of exceptions, where the motion and order overruling it are found. It is well settled that to raise any question involved in a motion for a new trial there must be an exception entered on the record to the ruling of the court in overruling the same. Henley v McNoun, 76 Ind. 380; Fletcher v. Waring, 137 Ind. 159, 36 N.E. 896, and numerous cases there cited.
Appellee's counsel contend that it nowhere appears in the record, that appellant excepted to the overruling of the motion for a new trial. But, as it appears in that part of the transcript where the order-book entry of the motion and the ruling thereon are found, that there was an exception to the action of the court in overruling the motion for a new trial, we are of opinion that appellant is entitled thereby to have the questions therein involved considered and decided.
Section 4314, R. S. 1894 (R. S. 1881, section 3293), provides that:
Section 4315 (R. S. 1881, section 3294), provides that: "Such person shall cause an accurate census to be taken of the resident population of such territory, as it may be, on some day not more than thirty days, previous to the time of presenting such application to the board * * as hereinafter provided; which census shall exhibit the name of every head of a family residing within such territory on such day, and the number of persons then belonging to every such family; and it shall be verified by the affidavit of the person taking the same."
Section 4316 (R. S. 1881, section 3295), provides that: "Such survey, map, and census, when completed and verified, as aforesaid, shall be left at some convenient place within said territory, for examination by those having interest in said application, for a period of not less than twenty days."
Section 4317 (R. S. 1881, section 3296), provides: That "Such application shall be by petition, subscribed by the applicants, and also by not less than one-third of the whole number of qualified voters residing within such territory; and said petition shall set forth the boundaries thereof, the quantity of land embraced according to the survey, and the resident population therein contained, according to said census taken; and the said petition shall have attached thereto, or written thereupon, affidavits verifying the facts alleged therein; and it shall be presented at the time indicated in the notice of such application, or as soon thereafter as the board can receive and consider the same."
Section 4318 (R. S. 1881, section 3297) provides that: "The board, * * in hearing such application, shall first require proof, either by affidavit or by oral examination of witnesses before them, that the said survey, map, and census were subject to examination in the manner and for the period required by section 3 of this act [section 3295]; and if said board be satisfied that the requirements of this act have been fully complied with, they shall then make an order, declaring that such territory shall, with the assent of the qualified voters thereof, as hereinafter provided, be an incorporated town, by the name specified in the application, * * * and they shall also include in such order a notice for a meeting of the qualified voters resident in said territory, at a convenient place therein, to be by them named, on some day within one month therefrom, to determine whether such territory shall be an incorporated town."
The succeeding sections provide for the holding of the election, and if a majority of the voters favor the incorporation, on the report of that fact to the commissioners, who, if they are satisfied of the legality of the election, shall make an order declaring that said town has been incorporated, etc.
The first point made by appellant for a reversal is the introduction in evidence over appellant's objection of the affidavit of Frank Howard to prove the correctness of the census. The offer was to put in evidence the census of the resident population of the territory and the affidavit attached thereto. The appellant objected "for the reason that there is no proof except the affidavit attached." That is not an objection to the introduction of the affidavit in evidence, but it is an objection to the introduction of the census without additional proof of its correctness to that of the affidavit. Appellant now argues that the affidavit was incompetent evidence.
A party who objects to evidence must state the grounds of his objection particularly, and if the evidence is received over his objection he must, on appeal in this court, be confined to such specific objection. He can not, in this court, urge any other objection, however valid such new objection may be. Torr v. Torr, 20 Ind. 118; Mugg v Graves, 22 Ind. 236; Blasingame v. Blasingame, 24 Ind. 86; ...
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Indiana IMP. Co. v. Wagner
... ... was incorporated by the board of commissioners, and such action confirmed by the circuit court on appeal, from which judgment the Indiana Improvement Company appeals. Affirmed.T. S. Wickwire, J. E. & J. H. Rose, and Croxton & Powers, for appellant. Woodhull & Brown and N. W. Gilbert, for ... ...