Town of Bloomfield v. West

• Decision Date: 26 November 1918
• Docket Number: No. 9615.,9615.
• Parties: TOWN OF BLOOMFIELD v. WEST et al.
• Court: Indiana Appellate Court

68 Ind.App. 568

121 N.E. 4

TOWN OF BLOOMFIELD

v.WEST et al.

No. 9615.

Appellate Court of Indiana, Division No. 1.

Nov. 26, 1918.

Appeal from Circuit Court, Monroe County; Robert W. Myers, Judge.

Action by Mary B. West and another against the Town of Bloomfield. Judgment for plaintiffs, and defendant appeals. Affirmed.Webster V. Moffett, Allen G. Pate, and Rufus H. East, all of Bloomfield, for appellant.

William L. Slinkard, Will R. Vosloh, and William L. Cavins, all of Bloomfield, for appellees.

HOTTEL, J.

Appellees are the owners of a certain lot in the town of Bloomfield on which, prior to the year 1910, there was maintained a frame structure which, for some years, had been used as a livery barn. On November 15, 1909, the town board of trustees duly and regularly adopted an ordinance which provided “that it shall be unlawful to erect, construct, or suffer to remain standing, any building or structure that will be or has become unsafe for occupancy, or dangerous or detrimental to life, health, or safety to property within the corporate boundaries of said town of Bloomfield. Any such building or structure is hereby declared to be and to constitute a nuisance and shall be abated by demolition and removal by the town marshal on the order of said board of trustees” after the giving of certain prescribed notice to the owner. In December, 1909, the board of trustees, by resolution, declared that, “owing to its unsafe and unsanitary condition,” appellees' barn constituted a public nuisance in violation of the above ordinance, and directed its removal. Notice was subsequently served on appellees that the structure should be removed on or before June 11, 1910, but this order was not complied with, and, in August following the town marshal, acting under the direction of the board of trustees, entered on appellees' premises and demolished the building in question.

Appellees subsequently instituted this action to recover damages for the alleged wrongful destruction of their property, and, from a judgment in their favor, this appeal is prosecuted. The sole error assigned challenges the action of the circuit court in overruling appellant's motion for a new trial.

[1][2] The transcript of the evidence in this case covers 280 pages of the record, but in the preparation of its brief appellant sets out only a copy of the documentary proof showing the passage of the ordinance above quoted and the notice to appellees, a copy of the deed of the property in question to appellees, and a condensed recital in six lines of the testimony of the town marshal who carried out the order of the board of trustees. This is clearly an insufficient presentation of the evidence under the requirements of Rule 22 (55 N. E. v), and that fact is now relied on by appellee as showing a waiver of most of the grounds in appellant's motion for a new trial. A review of the evidence, or of portions thereof, would be essential to our consideration of appellant's contentions: (1) That the verdict is not sustained by sufficient evidence; (2) that the damages are excessive; (3) that the court erred in refusing appellant's request for a peremptory instruction in its favor and in refusing its tendered instructions 1, 2, 3, and 4; and (4) that the court erred in certain rulings on the admission and exclusion of evidence. But, under many decisions of this and the Supreme Court, we are now precluded from considering any of the above contentions. Meno v. State, 114 N. E. 689, 690;Goshen Milling Co. v. Bailey, 114 N. E. 869, 871;Adolph Kempner Co. v. Citizens' Bank, 116 N. E. 440, 443;Johnson v. Bebout, 59 Ind. App. 159, 160, 108 N. E. 967.

The principal questions sought to be presented, however, arise out of the action of the trial court in giving to the jury instructions 7, 8, 9, 12, 14, and 15, and we proceed now to their consideration, with a view to determining whether, under any supposable state of the evidence, their giving was proper. Instruction 8 reads as follows:

“In this case it is claimed by the defendant that when it passed a resolution condemning the property of the plaintiffs as a public nuisance, that at that time the building described in the complaint was so kept and managed that it was a public nuisance, and it is claimed by the plaintiffs that after the passage of said resolution made by the defendant that the plaintiffs abandoned the use of the livery barn and for which it was then used. Now I instruct you that even if, at the time of the passage of said resolution, the building was so used that it was a public nuisance, and that in April afterwards the plaintiffs abandoned the use thereof, which made it a public nuisance, and long before it was destroyed the manure and offal had been hauled away, and the pile of manure and dirt removed, and the building was unoccupied, closed, and locked, and was in a reasonably safe condition on the 3d day of...