Zollman v. Baltimore & O.S.W.R. Co.

Decision Date11 December 1918
Docket NumberNo. 9269.,9269.
CourtIndiana Appellate Court
PartiesZOLLMAN v. BALTIMORE & O. S. W. R. CO.

OPINION TEXT STARTS HERE

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

Action by George W. Zollman against the Baltimore & Ohio Southwestern Railroad Company. Judgment for defendant and plaintiff appeals. Reversed with instructions.J. E. Henley and Rufus H. East, both of Bloomington, and S. B. Lowe, of Bedford, for appellant.

Robert W. Miers, of Bloomington, Edward Barton, of Cincinnati, Ohio, and McMullen & McMullens, of Aurora, for appellee.

CALDWELL, J.

Appellant is the owner of a 284-acre farm situate immediately east of the town of Medora, in Jackson county, through which, on an embankment, appellee's railroad extends in a general direction of southwest and northeast, and so that the major portion of the farm is south of the railroad. South of the railroad and roughly paralleling it flows White river in a southwesterly direction. At the time of the flood of 1913 appellee's embankment broke, and as a consequence large quantities of water impounded on the north side thereof were suddenly discharged upon appellant's lands south of the railroad. As a result his lands were damaged, and certain personal property injured and destroyed. Averring that appellee had negligently and unlawfully obstructed the flood waters of White river to his injury as alleged, he brought this action to recover the consequent damages. A trial resulted in a verdict in favor of appellee, on which judgment was rendered.

[1] Before considering the cause on its merits, there are certain preliminary questions that must be determined. Thus, no exception was reserved to the judgment. The verdict was in general terms in favor of appellee. On the verdict judgment was rendered that appellant take nothing, and that appellee recover costs. Such a judgment follows such a verdict as matter of course. Strictly speaking it involves no ruling and consequently requires no exception in order that the losing party may be protected in his rights.

[2] Where the judgment is proper in form and in substance, as measured by the verdict or finding, the question of its correctness, as measured by the cause and the procedure, is tested by exceptions reserved to rulings preceding the rendering of judgment and properly presented. Elliott's App. Pro. Sec. 796; Eckhart v. Marion, etc., Co., 59 Ind. App. 217, 109 N. E. 224;State v. Swarts, 9 Ind. 221;Duzan, Adm'r, v. Myers, 30 Ind. App. 227, 65 N. E. 1046, 96 Am. St. Rep. 341;Smith v. Tate, 30 Ind. App. 367, 66 N. E. 88. The validity of section 661, Burns 1914, is challenged. That question has, in effect, been determined. Appellee concedes as much in its brief. Cleveland, etc., Co. v. Smith, 177 Ind. 524, 97 N. E. 164;Tarnowski v. Lake Shore, etc., Co., 181 Ind. 202, 104 N. E. 16.

[3] Under that section appellant obtained an extension of time, within which to file his bill of exceptions containing the evidence, beyond the time limited by the court for that purpose when the appeal was prayed and granted. It is urged that such extension was unauthorized by reason of defective notice to appellee, and that as a consequence the bill was not filed within the time properly fixed for that purpose, and that as a result it is not a part of the record. The facts are as follows: The motion for a new trial was overruled and judgment rendered November 9, 1914, at the October term of the trial court, and 90 days given within which to file the bill of exceptions containing the evidence. February 2, 1915, at a succeeding term of the court, appellant, proceeding under section 661, supra, applied for and was granted an extension of such time to April 1, 1915. That section contains a provision to the effect that the party asking such an extension of time shall give the opposite party, or his attorney of record, at least three days' notice of the time when, and the place where, the application will be heard. Filed with the verified application there was a copy of notice sufficient in form and substance and directed to appellee's attorneys of record, and attached to which there was an affidavit to the effect that six days prior to February 2, 1915, the day fixed for presenting the application, one of appellant's attorneys inclosed the original of such notice in an envelope properly stamped and addressed to appellee's said attorneys at Aurora, Ind., and deposited it so stamped and addressed in the United States mail. Appellee presents the question of the sufficiency of a notice under such statute where there is no service of it otherwise than as indicated. For reasons hereinafter appearing we do not find it necessary to determine such question, but by reason of its importance we suggest the insufficiency of a notice so served, where the service is not accepted as such. See the following: Sections 504 and 505, Burns 1914; Chicago, etc., Co. v. Sanders, 114 N. E. 986;Haj v. American, etc., Co., 261 Ill. 362, 103 N. E. 1000;Scanlon v. Scanlon, 154 Iowa, 748, 135 N. W. 634;North Coast, etc., Co. v. Lincoln County, 81 Wash. 311, 142 Pac. 661;In re Blumberg, 149 App. Div. 303, 133 N. Y. Supp. 774;Ensley v. State, 4 Okl. Cr. 49, 109 Pac. 250;Rathbun v. Acker, 18 Barb. (N. Y.) 393;Wilson v. Trenton, 53 N. J. Law, 645, 23 Atl. 278, 16 L. R. A. 200; 29 Cyc. 1117 and 1119.

[4][5] As we have said, we are not required to determine the sufficiency of the notice or its service here. The bill itself discloses that it was presented to the judge February 5, 1915, within the time originally granted. This is sufficient, although the bill was not filed until March 17. Section 660, Burns 1914; Malott v. Central Trust Co., 168 Ind. 428, 79 N. E. 369.

[6] There is a vacation entry to the effect that the bill was presented to the judge March 5, instead of February 5, but the bill controls in this respect. Malott v. Central Trust Co., supra. It may be said also that there are some indications outside the bill that the date of presentation stated in the bill is erroneous. If so, no steps have been taken to correct the bill and it must therefore govern as to the date of presentation. It results that as recourse was not had to the extended time, irregularities or insufficiencies attending the procedure to procure the extension are immaterial.

[7] We proceed to consider the various arguments advanced by appellee in support of its contention that the instructions are not in the record. The instructions were brought into the record by a bill of exceptions. An inspection of the bill discloses that it is proper in form and substance, and that it contains all the instructions that were given and all that were tendered and refused, and that appellant reserved an exception to each instruction given by the court on its own motion and at appellee's request, and a like exception to the refusal of each instruction tendered by appellant and not given. It appears from an order book entry that the bill was filed on the day that the trial closed, and consequently within the term at which the trial was had. The filing of the bill was a sufficient filing of the instructions. Ohio, etc., Co. v. Dunn, 138 Ind. 18, 36 N. E. 702, 37 N. E. 546.

[8] It appears also that the bill was signed on the day that it was filed, it not appearing expressly whether the signing preceded the filing. It is true that it is essential to the validity of a bill of exceptions that it be filed after rather than before it has been signed. But where, as is the case here, it appears that there was no default respecting the time of filing the bill and that it was filed on the day it was signed, the latter act is presumed to have preceded the former. Giving force to such presumption, it is sufficiently disclosed that the bill was signed before it was filed. Martin v. State, 148 Ind. 519, 47 N. E. 930;Toledo, etc., Co. v. Parks, 163 Ind. 592, 72 N. E. 636;Davis v. Neighbors, 34 Ind. App. 441, 73 N. E. 151.

[9] The various other statutory methods of making instructions a part of the record in a civil action are not exclusive of the method by bill of exceptions. Berry v. Driver, 167 Ind. 127, 76 N. E. 967;Republic, etc., Co. v. Lulu, 48 Ind. App. 271, 92 N. E. 993.

[10] The instructions being properly in the record by bill of exceptions, it is not necessary that we determine whether that end was accomplished by other methods also attempted, or whether the statute was complied with in that respect.

[11] Appellee insists that questions raised under the motion for a new trial should not be considered for the reason that the motion is not set out in full in appellant's brief. The substance of those grounds on which appellant relies is set out. This is sufficient. There is no substantial reason why an appellant should incumber his brief with causes for a new trial waived or not relied on in this court.

[12] Certain other criticisms are made respecting the form and substance of appellant's briefs. The briefs are sufficient to present a number of questions on the merits of the case. Those questions are therefore entitled to consideration. North v. Jones, 53 Ind. App. 203, 100 N. E. 84. It may be said, however, that appellee's briefs, except certain general and unapplied propositions, are devoted exclusively to objections to the sufficiency of the transcript and to criticism of appellant's briefs. Appellee's briefs, under points and authorities, do not contain a single specific proposition directed to any alleged error urged upon our attention by appellant.

An understanding of the general nature of the complaint is essential to a proper consideration of questions presented involving the merits of the cause. The complaint is in two paragraphs. The first paragraph is briefly to the following effect: The general direction of White river through Jackson county is southwest. It flows near the center of a low flat plain about three miles wide flanked by hills on either side. This plain is the flood...

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