The Laughery Turnpike Company v. McCreary
| Decision Date | 23 April 1897 |
| Docket Number | 18,095 |
| Parties | The Laughery Turnpike Company v. McCreary |
| Court | Indiana Supreme Court |
From the Switzerland Circuit Court.
Affirmed.
J. B Coles, G. B. Hall and F. M. Griffith, for appellant.
W. R Johnston, H. D. McMullen and H. R. McMullen, for appellee.
Appellee brought this action to recover possession of certain real estate described in the complaint. The first paragraph of the complaint was in the ordinary form, under section 1066, Burns' R. S. 1894 (1054, R. S. 1881). Appellant's demurrers to the second and fourth paragraphs of complaint were overruled. The cause was tried by a jury, and upon the verdict returned a judgment was rendered in favor of appellee. Appellant, on motion, was granted a new trial, as of right, under section 1076, Burns' R. S. 1894 (1064, R. S. 1881). The cause was tried a second time, a special verdict returned and, over appellant's motion for a venire de novo, judgment was rendered in favor of appellee.
At the first trial, the jury returned a general verdict, and also answered interrogatories submitted to them by the court. Appellant moved the court for a judgment in its favor, on the answers to the interrogatories, notwithstanding the general verdict. This motion was overruled, and appellant assigns this ruling of the court as error. When appellant took a new trial as of right, all errors, if any, committed by the trial court during the first trial, until said new trial was granted, were waived, and cannot be presented on this appeal. They stand the same as if the court had granted appellant a new trial for cause.
The other errors assigned, and not waived, call in question the action of the court in overruling the demurrer to the second and fourth paragraphs of the complaint; in sustaining appellee's motion for judgment on the special verdict; and in overruling appellants motion for an apportionment of the costs.
It is shown by the special verdict that in 1869 the board of commissioners of Ohio county granted appellant the right to construct a gravel road on and over a public highway in said county; that one Holmes owned the real estate in controversy in 1874, at which time appellant built a tollhouse thereon that said real estate is partly within the limits of the right of way of said turnpike; that said tollhouse was built thereon pursuant to an agreement between appellant and Holmes that the same should be removed whenever Holmes desired. An addition was built in 1875 without the knowledge or consent of Holmes, but he afterwards consented that it might remain on his land so long as he chose to permit it, and no longer. Afterwards, in 1888, appellant issued to Holmes a pass entitling him to travel over a certain part of appellant's turnpike free of toll, in consideration of which it was agreed between appellant and Holmes that said tollhouse should remain on said real estate during the life time of Holmes, and no longer; that Holmes continued the owner of said real estate until his death; that appellant has occupied said tollhouse since 1874, under said agreement with said Holmes, and not otherwise; that said Holmes died intestate before the commencement of this action, leaving appellee as one of his heirs; that the real estate in controversy was set off to her in partition proceedings as a part of her share; that said appellee, at the commencement of this...
To continue reading
Request your trial