Thompson v. Deprez

• Decision Date: 04 June 1884
• Docket Number: 10,982
• Citation: 96 Ind. 67
• Parties: Thompson v. Deprez et al
• Court: Indiana Supreme Court

96 Ind. 67

Thompson v. Deprez et al

No. 10,982

Supreme Court of Indiana

June 4, 1884

From the Shelby Circuit Court.

T. B Adams and L. T. Michener, for appellant.

E. K Adams, L. J. Hackney and O. J. Glessner, for appellees.

OPINION

Franklin C.

Appellee Deprez and others filed a petition before the board of commissioners for the change of a public highway. Upon a favorable report of viewers, appellant filed a remonstrance for the want of public utility, and claiming damages if the change should be made. Reviewers reported in favor of the public utility, and assessed to appellant $ 15 damages, upon which the county board ordered the change to be made, and appellant appealed to the circuit court, where the case was tried by a jury; a verdict was returned in favor of the petitioners, and in favor of remonstrant for $ 25 damages. Over a motion for a new trial, judgment was rendered upon the verdict, and the remonstrant appealed to this court. The only error assigned is the overruling of the motion for a new trial.

On the 14th day of May, 1884, appellees with their brief filed a motion to dismiss the appeal, for the reason that the nineteenth rule of this court had not been complied with, by numbering all the lines of each page of the bill of exceptions, and placing marginal notes thereon designating the names of the witnesses.

The lines are numbered in the transcript of the pleadings and record, and in the parts of the bill of exceptions referred to by appellant in his brief, and the bill of exceptions containing the evidence is preceded by a general index containing the names of the witnesses and the pages upon which their evidence may be found. The cause was submitted by agreement endorsed upon the record March 1st, 1884. We think after appellees agreed to submit, without a full compliance with the rule, there was a sufficient compliance to prevent a dismissal of the appeal.

Among the twenty-eight reasons stated for a new trial, appellant first insists upon the fourth, which is that the court erred in permitting the plaintiff to introduce in evidence proof of the posting up of notices of the pendency of the petition.

This proof was entirely unnecessary; there had been an appearance before the board of commissioners without any objections to the notice, and there was no issue pending in the circuit court that required such proof. Green v Elliott, 86 Ind. 53; Breitweiser v. Fuhrman, 88 Ind. 28; Rominger v. Simmons, 88 Ind. 453. But this evidence,...