Wiebke v. City of Ft. Wayne

Decision Date08 March 1917
Docket NumberNo. 9778.,9778.
Citation64 Ind.App. 38,115 N.E. 355
PartiesWIEBKE et al. v. CITY OF FT. WAYNE et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, De Kalb County; D. M. Link, Judge.

Suit by Fred D. Wiebke and others against the City of Ft. Wayne and others. Judgment for defendants, and plaintiffs appeal. Dismissed.Harper & Fuelber, of Ft. Wayne, for appellants. Colerick & Hogan and Leonard, Rose & Zollars, all of Ft. Wayne, for appellees.

FELT, C. J.

The appellants, Fred D. Wiebke, Louise D. Wiebke, Emma C. Wiebke, William H. Wiebke, and Sarah C. Wiebke, brought suit against the appellees, city of Ft. Wayne, David N. Foster, Abe Ackerman, Louis Dorn, and Louis Fox, members of the Board of Park Commissioners of the city of Ft. Wayne, the Board of Park Commissioners of the City of Ft. Wayne, and the Grase Construction & Supply Company, to enjoin said appellees from performing a certain contract for the improvement of a boulevard in said city, known as Rudisill boulevard, by constructing a combined concrete curb and gutter and grading and paving the roadway with macadam. Issues were formed on the complaint, the cause was tried by the court, and a special finding of facts made, on which the court stated its conclusions of law that appellants were not entitled to the injunction for which they prayed, and that appellees should recover costs.

The errors assigned question the correctness of the conclusions of law. Appellees have moved to dismiss the appeal on the ground that the errors assigned have become moot questions. The verified motion shows that appellees Foster, Ackerman, Dorn, and Fox were members of the Board of Park Commissioners of the city of Ft. Wayne, and that such commissioners had let a contract to appellee Grase Construction & Supply Company for the improvement above mentioned, and that appellants' property was liable to assessment therefor; that appellants alleged and sought to show that such contract was illegal, and the sole relief sought was an injunction to prevent the execution of the contract for the aforesaid improvement; that no temporary restraining order was at any time issued against appellees by any court; that after the rendition of judgment by the lower court in favor of appellees on the conclusions of law aforesaid, said construction company performed all the work covered by its said contract and fully completed the same on October 23, 1916, and all the work was completed before the...

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