Wiebke v. City of Fort Wayne

• Citation: 115 N.E. 355,64 Ind.App. 38
• Decision Date: 08 March 1917
• Docket Number: 9,778
• Parties: WIEBKE ET AL. v. CITY OF FORT WAYNE ET AL
• Court: Court of Appeals of Indiana

115 N.E. 355

64 Ind.App. 38

WIEBKE ET AL. v. CITY OF FORT WAYNE ET AL

No. 9,778

Court of Appeals of Indiana

March 8, 1917

From Dekalb Circuit Court; Dan M. Link, Judge.

Action by Fred Wiebke and others against the city of Fort Wayne and others. From a judgment for defendants, the plaintiffs appeal.

Appeal dismissed.

Harper & Fuelber, for appellants.

Colerick & Hogan and Leonard, Rose & Zollars, for appellees.

OPINION

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 Fort Wayne, David N. Foster, Abe Ackerman, Louis Dorn and Louis Fox, members of the board of park commissioners of the city of Fort Wayne, the board of park commissioners of the city of Fort Wayne and the Grace Construction and 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 was 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 Fort Wayne and that such commissioners had let a contract to appellee, Grace Construction and 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 transcript in this case was filed in this court; that the property of appellants described in their amended complaint was...