156 Ind. 550 | Ind. | 1901
This was an action in the lower court by the State on the relation of Susan M. Underwood against appellants, the Board of Commissioners ahd the Auditor of the county of Monroe, to obtain a writ of mandamus compelling the issuing of a warrant upon the treasurer of said county in favor of the relatrix for the sum of $23. Appellants waived the issuing of an alternative writ and unsuccessfully demurred to the petition for insufficiency of facts. Answers and replies were filed, and the issues were duly joined
It is insisted by counsel for appellants tbat tbe petition is insufficient upon demurrer for tbe reason--that it-does not allege tbat tbe relatrix filed a written application with the viewers for tbe assessment of damages which • she would sustain by reason: of tbe location of tbe proposed improved ■road over and through ber lands. Section 1 of tbe amendatory act of 1895 (Acts 1895, p, 143), §6924 Burns Supp. 1897, under which tbe improvement of tbe highway by tbe
Unquestionably, when a landowner in a proceeding to improve a highway under this statute in the first instance seeks to have an assessment of damages, he must comply with this requirement of the statute. In this action, however, which is a collateral proceeding, it is disclosed by the petition that the matter of the relatrix’s damages was presented to the viewers, and although they were by her, in compliance with the statute, requested to assess her damages, they failed to'assess any whatever in her favor, and that thereupon the board of commissioners upon her demand
As the special finding in this case may be said to be silent in regard to the fact of there being funds in the treasury liable for or subject to the payment .of the warrant when issued, and as the establishment of that fact was essential to the relatrix’s cause of action, it must follow that the special finding did not authorize the conclusion of law stated thereon in her favor, and therein the court erred.
Other questions depending upon the evidence are discussed by counsel for appellants, but these'can not be reviewed, for the reason that the evidence is not properly before us. It appears that on April -24, 1899, during the
For the error in the court’s conclusion of law heretofore pointed out, the judgment is reversed, and the cause, remanded to the lower court, with instructions to vacate, its judgment, and grant .appellants a new trial.