Anglemyer v. Board of Commissioners

153 Ind. 217 | Ind. | 1899

Jordan, C. J.

This was a proceeding instituted before the board of commissioners of the county of Huntington to reassess lands of appellants benefited by the construction of a free gravel road known as The Roanoke and Jackson Gravel Road.

Proceedings to construct this highway were commenced in 1883 under the act of 1877, §§6855, 6856 Burns 1894, §§5091, 5092 Homer 1897. It appears that said road was constructed, and bonds issued and sold by the county, under the provisions of the statute, in order to raise money to pay the cost and expenses arising out of the improvement. It is further disclosed that the original assessment made upon the lands benefited proved to be insufficient to pay all of the expenses and cost incurred in and about the construction of the highway, and the deficit rendered it necessary to institute this action for a reassessment of the lands in question.

Appellants appeared before the board of commissioners, in pursuance of the notice given, and remonstrated against the additional assessment of benefits upon théir lands; and such proceedings were had before the board as resulted in the appointment of viewers to make an additional assessment, which was accordingly made, and said assessment was approved and confirmed by the board; from which order the remonstrators appealed to the circuit court. In the latter court an amended remonstrance was filed. Certain paragraphs of this remonstrance were stricken out on motion, and the ruling of the court in rejecting these paragraphs is assigned as error. On the trial the court made a special finding of facts, and stated its conclusions of law thereon. Over appellants’ joint exceptions to these conclusions of law, and over their motion for a new trial, judgment was rendered upon the finding.

Appellants unsuccessfully moved to modify the judgment, and have assigned error upon this ruliiig of the court. Counsel for appellee, in an additional brief filed on -November 1, 1898, insist that the conclusions, which appellants seek to present for review in this appeal, are identical with those involved and decided by this court in Kline v. Board, etc., 152 Ind. 321. Appellants seem to have entirely ignored this brief, and have presented nothing adverse to this contention of the appellee. An examination of the record in this appeal fully verifies this insistence of counsel for appellee. The evidence is not before us, and the particular questions discussed by counsel for appellants, in his brief, are substantially the same as those referred to and considered in the case of Kline v. Board, etc., supra, and are raised and sought to be presented in like manner by the record as were those in that appeal; and it is not essential that they be reviewed at length, as the opinion in that case must be accepted as decisive of the points mooted in the case at bar, and, upon the authority thereof, the judgment below must be affirmed.

No error can be successfully predicated upon the denial of the motion to modify the judgment, as the questions thereby attempted to be raised are matters involved in the court’s conclusions of law upon the facts found, and should have been presented by exceptions to such conclusions.

Judgment affirmed.