Yeoman v. Shaeffer

• Decision Date: 06 June 1900
• Citation: 57 N.E. 546,155 Ind. 308
• Parties: YEOMAN et al. v. SHAEFFER.
• Court: Indiana Supreme Court

155 Ind. 308

57 N.E. 546

YEOMAN et al.

v.SHAEFFER.¹

Supreme Court of Indiana.

June 6, 1900.

Appeal from circuit court, Jasper county; R. A. Dwiggins, Special Judge.

Petition by Wilson Shaeffer for construction of a drain. From a judgment establishing the drain and assessing benefits, James Yeoman and others appeal. Affirmed.

Ferguson & Wilson and Sellers & Uhl, for appellants. Foltz, Spitler & Kurrie, for appellee.

DOWLING, J.

This is a proceeding under the statute to obtain the construction of a public tile drain through certain lands in Jasper county. Burns' Rev. St. 1894, § 5655 et seq. The petition therefor was filed by the appellee with the board of commissioners. It alleged, among other things, that the ditch would be of public utility; that it would conduce to the public health; that it would drain the lands of the petitioner and of other owners, and render them fit for agricultural purposes; that it would improve the public highways; and that the benefits to be derived from it would largely exceed the cost of its construction. The appellants, who were a part of such owners and occupants, filed their remonstrance, averring that each assessment made on the separate tracts of land owned by the appellants were too high as compared with the assessment against the lands of the appellee; that the assessments were too high as compared with the benefits; denying that the proposed ditch would be of public utility, would benefit the public health, or would benefit the public highways; denying also that the lands of the remonstrators would be benefited, etc. After various steps before the board, an order was entered directing the construction of the drain, and making assessments upon the lands benefited for the cost of the same. An appeal to the circuit court was taken by the remonstrators, and the proceedings there resulted in a verdict for appellee. A motion for a new trial was made and overruled, and a judgment was rendered establishing the drain, and making the necessary assessments for the cost of its construction upon the several tracts of land benefited. From this judgment the remonstrators, James Yeoman, Robert Yeoman, Joseph Yeoman, Orpheus C. Halstead, Micha B. Halstead, Andrew J. Freeland, and Sarah E. Miller, appealed.

The only error assigned and discussed is the overruling of the motion for a new trial. The assignment is joint. The reasons stated in that motion were: (1) That the verdict was contrary to law; (2) that the verdict was not sustained by sufficient evidence; (3) error in permitting the introduction in evidence of the remonstrance filed by appellants to the third report of the reviewers; (4) error in submitting to the jury the interrogatories answered by them; (5) error in refusing to submit interrogatories requested by appellants; (6) error in giving instructions numbered 3, 7, 12, and 15, at request of appellee; (7) error in refusing to give instructions numbered 2, 3, 4, 5, 6, and 7, requested by appellants; (8) error as to appellants A. J. Freeland, Orpheus C. Halstead, Sarah E. Miller, Micha B. Halstead, and Joseph Yeoman, in refusing to give instruction No. 7, requested by them; (9) error in permitting the jury to take to their room the third report of the reviewers; and (10) error in giving instructions numbered 2, 11, 13, 15, 21, and 22, of the court's own motion.

The preliminary objections are made by the appellee that the certificate of the clerk of the Jasper circuit court to the transcript is insufficient, and that, therefore, the appeal should be dismissed; and that the joint assignment of error presents no question on this appeal. The certificate states that the transcript contains true and complete copies of all the papers introduced and entries made in said cause. The præcipe directed the clerk to make a transcript of the proceedings, papers on file introduced, and judgment. By the...