The Windfall Manufacturing Co. v. Emery

• Decision Date: 05 November 1895
• Docket Number: 17,571
• Citation: 41 N.E. 814,142 Ind. 456
• Parties: The Windfall Manufacturing Co. v. Emery et al
• Court: Indiana Supreme Court

41 N.E. 814

142 Ind. 456

The Windfall Manufacturing Co. v. Emery et al

No. 17,571

Supreme Court of Indiana

November 5, 1895

From the Hamilton Circuit Court.

Judgment affirmed.

Blacklidge & Shirley and Shirts & Kilbourne, for appellant.

W. O Dean and W. H. Dean, for appellees.

OPINION

Monks J.

This was a proceeding for the annexation of certain territory to the town of Windfall, brought before the board of commissioners of Tipton county. Appellant appeared before the board and filed a remonstrance. A trial was had which resulted in a finding and judgment that said territory be annexed. Appellant appealed to the circuit court, the venue was changed to the Hamilton Circuit Court where the cause was tried by a jury, a verdict returned against appellant and over a motion for a new trial, judgment was again rendered that said territory be annexed.

The only error assigned is the overruling of appellant's motion for a new trial.

One of the causes assigned for a new trial questions the sufficiency of the evidence to sustain the verdict. It has been held by this court that as the statute does not prescribe what reasons for annexation shall be set forth in the petition, that question is necessarily left to the sound discretion of the authority passing on the same. Catterlin v. City of Frankfort, 87 Ind. 45; Elston v. Board of Trustees, 20 Ind. 272; Chandler v. City of Kokomo, 137 Ind. 295, 36 N.E. 847.

The sufficiency of such reasons being within the sound discretion of the authority to which they are addressed, this court cannot review that discretion unless, possibly, it has been plainly abused. Chandler v. City of Kokomo, supra. The reasons set forth in the petition for annexation in this case have not been questioned in this court by an assignment of error.

It is urged, however, by appellant, that, in considering the evidence, we should disregard certain of the reasons for annexation stated in the petition, because they are insufficient.

If we could review the exercise of discretion as to the sufficiency of the reasons stated for annexation when it had been palpably abused--a question we do not determine--we would be compelled to adjudge that there was no such abuse in this case. On the contrary, the sufficiency of the reasons stated is sustained by this court. Catterlin v. City of Frankfort, supra; Stilz v. City of Indianapolis, 55 Ind. 515.

The objection urged by appellant to the reasons stated for annexation could only be reached by a motion to make more specific. This being true, there is evidence which supports the verdict, and, under the well settled rule, we cannot weigh the evidence.

The court below permitted a witness on behalf of appellee, to testify over the objection of appellant, that "he was appellant's bookkeeper from March, 1891, until the 1st of June, 1892, and that during that time he kept its books at a store in the town of Windfall; that the books of appellant were at the tile factory on the 1st of April, 1893; that appellant used the streets of the town for hauling and getting a large portion of their brick; that Gifford, a member of the appellant...