146 Ind. 577 | Ind. | 1897
The appellees, The Grand Rapids & Indiana Railroad Company and The Cincinnati, Rich
The action of the circuit court in overruling the appellant’s demurrers to the first, second, and fourth answers of the appellees, and in overruling a motion by the appellant for a new trial are assigned as error.
The first answer described the land, alleged its ownership by the appellees, and that damages had been assessed in the sum of $500.00, when in fact said land and the appellees would be damaged in the sum of $5,000.00. The second answer pleaded the occupancy, by the appellees, of the land in question for twenty-five years, the construction thereon of one main line and three side tracks and switches and the building of a structure from which to load and unload freight, all occupying the land to be crossed by said street.
The fourth answer alleged the vacation, by the city, of said street, at the point of crossing, to induce the location of the railway and the establishment of said yards; that the r,oad and yards were located at the point in question by reason of the vacation of the street; that no necessity existed for the extension of the street, but that it was urged for the advancement of the values of private property, and that the damage which would accrue to the companies could not be adequately compensated.
The second and fourth answers were drawn upon the theory that the appellant should be barred of any
If the rulings upon said two answers were erroneous we are unable to observe any harm resulting to the appellant therefrom. It is the settled practice that an erroneous ruling in sustaining an answer against a demurrer will not constitute reversible error if the judgment upon the merits is in favor of the plaintiff upon the issue tendered by such answer. McComas v. Haas, 93 Ind. 276; State, etc., v. Julian, 93 Ind. 292; Foster v. Bringham, 99 Ind. 505; Butt v. Butt, 118 Ind. 31; Indianapolis, etc., R. W. Co. v. Center Tp., 143 Ind. 63; Miller v. McDonald, 139 Ind. 465; Miller v. Rapp, 135 Ind. 614; Evansville, etc., R. R. Co. v. Maddux, 134 Ind. 571.
As to the first paragraph of answer, it is insisted that, under section 3643, Burns’ R. S. 1894 (R. S. 1881, 3180), the appellees were required to “state specifically the grounds” of their “objection to the proceedings of the common council and commissioners;” and that as this was a special proceeding, where the ordinary rules of practice do not obtain, a general claim for damages was insufficient.
The statute referred to further provides that “The
Appellees object to a consideration of any question depending upon the evidence, and insist that the evidence is not properly in the record.
Passing this confusion of dates, which probably shows that the filing of the bill containing the evidence was thirty days before the bill was signed, as it disclosed upon its face, and accepting the only theory open to the appellant, that the filing of the bill was on the 18th day of February, instead of the 18th day of January, as the order-book states by mistake,
These cases hold that, where the question is made, it must affirmatively appear from the record that the longhand manuscript was filed before it was filed as a part of the bill of exceptions. In the present case, no file mark or certificate is given aiding the contention that the manuscript was filed prior to the filing of the bill.
Two of the causes assigned for a new trial were: “3. The damages assessed by the court are excessive. 4. The assessment of the amount of recovery is erroneous, being too large.”
If the first of these causes raises any question in this case, which may well be doubted, White v. McGrew, 129 Ind. 83, it must depend upon the evidence, which, as we have seen, is not in the record.
Of the second of said causes, it is simply said that the recovery, $5,100.00, was $1(30.00 in excess of the demand made in the answer. In such case this court will treat the question as if the pleading had been amended to meet the amount of damages proven and found in favor of the appellee. McKinney v. State, ex rel., 117 Ind. 26; White v. Stellwagon, 54 Ind. 186; Webb v. Thompson, 23 Ind. 428; Kettry v. Thumma, 9 Ind. App. 498.
The record presenting no available error the judgment is affirmed.