174 Ind. 104 | Ind. | 1909
This is an appeal from a judgment establishing a public highway.
It is first insisted by appellants that the court below erred in overruling their motion to dismiss the appeal from the board of commissioners to said court.
It appears from the record that this proceeding was commenced by appellees before the board of commissioners at the April term, 1906, that viewers were appointed at said term to view said proposed highway, as required by the stat
Acts 1905 p. 521, §123, §7793 Burns 1908, authorizes appeals from the board of commissioners to the circuit court within thirty days from the decision of the board in cases like this, by filing a bond with surety and penalty to be approved by the auditor of such county. There is nothing in the statute requiring that the record of the proceedings before the board of commissioners or the transcript filed by the auditor in the circuit court should show that an appeal was prayed or taken from the decision of said board to the circuit court, or that the appeal bond should be incorporated or mentioned in said record or transcript. §6023 Burns 1908, §5774 R. S. 1881. See Demaree v. Johnson (1898), 150 Ind. 419, 421, 422.
It is insisted by appellants that “before a substituted bond can be filed in the circuit court for one alleged to have been filed in the auditor’s office and approved by such auditor, proof of such filing and approval by the auditor and the name of the surety thereon must be made by the affidavit of the auditor, and if the name of the surety is not remembered by the auditor, the affidavit of the surety, to the effect that he signed the appeal bond, must be filed, or the affidavit of someone else, who knows the facts why such information is not furnished, must be filed.”
As there is no statute prescribing the kind or character of the evidence necessary to establish the filing and approving of an appeal bond in cases like this, nor the manner of proving such filing and approving, they may be established by affidavit, as was done in this case. Appellees were not required to prove said filing and approving by the affidavit of the county auditor or the surety on the bond. Appellants had the right to show by the affidavit of the county auditor that no such bond was ever approved by him, but the record does not show that appellants gave any evidence on this question.
It is well settled that a joint assignment of error must be good as to all who join in it, in order to present any question. Ewbank’s Manual §138; Starkey v. Starkey (1906), 166 Ind. 140, and cases cited; Bush v. McBride (1903), 159 Ind. 663, and cases cited; Bolt v. Ward (1901), 156 Ind. 382, and cases cited; Sheeks v. State, ex rel. (1901), 156 Ind. 508, 509; Yeoman v. Schaeffer (1900), 155 Ind. 308, 311, and cases cited; Earhart v. Farmers Creamery (1897), 148 Ind. 79, 80; In re Paskins (1900), 155 Ind. 173; Johnson v. Blair (1904), 32 Ind. App. 456; McCarty v. Snowbarger (1905), 35 Ind. App. 179; Indianapolis St. R. Co. v. Bolin (1908), 41 Ind. App. 266, and cases cited. As said error, if any, is not available to said Collins, and as appellant Fowler complains thereof jointly with said Collins, said assignment of error presents no question. In re Paskins, supra, and authorities before cited.
It is well settled that the exclusion of evidence on the examination-in-chief is not available as error, unless the party makes an offer to prove the facts which he assumes his question will elicit. The record must show the offer to prove, or there is no available error. Smith v. Gorham (1889), 119 Ind. 436, 439; Harter v. Eltzroth (1887), 111 Ind. 159, 160;
Substantially the same question was propounded to appellant Fowler while on the stand as a witness for appellants, and an objection thereto by appellees was sustained by the court, but no offer to prove was made. There being no offer to prove, the error, if any was committed, is not available.
Complaint is also made by appellants of the refusal of the court, on objection by appellees, to permit other witnesses for appellants to answer questions propounded to them by appellants’ counsel, but as there were no offers to prove, as required in such cases, it is clear from the cases cited that no questions concerning said rulings are presented by the record.
One Hays, a witness for appellees, was permitted, over the joint objection and exception of appellants, to testify to matters which affected the land and rights of appellant Fowler alone. As said objection and exception were united in by both appellants when the evidence and ruling affected only
It is said in Elliott, App. Proc. §318: “Where several parties unite in one assignment of errors they will encounter defeat unless the assignment is good as to all. If the errors affect the parties severally and not jointly the proper practice is for each party to assign errors, for the rule is well settled that a joint assignment will not permit one of several parties to avail himself of errors alleged upon rulings which affect him alone and not those with whom he unites in the assignment. The rule that a joint assignment of errors must
The action of the court in overruling the “separate and several ’ ’ motion of appellant Collins for a new trial affected her alone, and not appellant Fowler, and the action of the court in overruling the “separate and several” motion of appellant Fowler for a new trial affected him alone, and not appellant Collins. It is evident that as said appellants united in a joint assignment of errors as to the action of the court in overruling appellants’ “separate and several” motions for a new trial, that said assignment was not good as to both, because said ruling as to each motion only affected one of them. It follows that the causes for a new trial assigned in the separate and several motion of appellants for a new trial are unavailing on this appeal.
Finding no available error in the record, the judgment is affirmed.