45 Ind. 322 | Ind. | 1873
This was a proceeding for the appropriation of certain real estate of the appellee by the appellant for its railroad, under section 15, G. & H. 509. Appraisers were appointed by the judge on the application of the appellant, who assessed the damages and made their report to the clerk of the court. Within ten days, the appellee filed exceptions to the award of the appraisers. The appellant moved to strike out four of the exceptions. The motion was sustained as to two, and overruled as to the others. A demurrer wás then filed to the exceptions, which was overruled. Exceptions were taken to both rulings. A review and re-appraisement of the premises was then ordered by the court, without objection by either party, and a jury requested by the appellee to try the issues.
At the next term, being the April term, 1870, and on the 12th day of April, the appellant, on affidavit filed, obtained an order for a change of venue of the cause to the Monroe Circuit Court. By that order, the clerk was directed to transmit the transcript of the proceedings and papers to the Monroe Circuit Court upon payment of the costs occasioned by the change.
The cause Was tried by a jury, who rendered a general verdict for the appellee for eleven hundred dollars, 'and at the request of the appellant, answered certain interrogatories. The first one was as follows: “ What amount do you allow the defendant on account of the land taken by the railroad company.? Ans. One hundred and seventy-five dollars.” The third was as follows: “ What amount do you allow the defendant for damages to land not taken by the railroad company? Ans. Nine hundred and twenty-five dollars. ” Other interrogatories were propounded with a view to ascertain whether anything, and what amount, was allowed on account of other claims for damages; the answers to which showed that nothing was allowed except the two items already mentioned.
The errors assigned are, 1st. In overruling the motion for a new trial. 2d. In rendering a judgment for appellee and not ordering a deed to be made to appellant.
We will dispose of the last reason for a new trial first, because, if that is sustained, it will not be necessary to consider any other.
The statute regulating changes of venue in civil cases, 2 G. & H. 155, section 208, provides that if a party applying for a change shall fail to perfect the same ten days before the first day of the next term of the court to which the change is taken, or within such time as the court shall prescribe in the order granting the change, he shall pay all the costs made in the case up to the time of such failure. In ” Rogers v. Stevens, 8 Ind. 464, it was held that if the party obtaining the order for the change fails to pay the costs, etc., he loses the benefit of the order; it ceases to operate after the expiration of such time; and the cause remains pending, as if no order of change had been made. In that case, the court, from which the change of venue was granted, ordered the papers returned from the court to which it had
To the same effect is Dooley v. Martin, 28 Ind. 189. In Hamrick v. The Danville, etc., Gravel Road Company, 32 Ind. 347, the parties had appeared to the action in the court to which the change had been granted, and that court had acquired jurisdiction of them. In the case at bar, there had been no appearance. In that case, the court remanded the cause on its own motion after appearance. Here, there was no waiver by the appellee. This case is not like that, but more like those before referred to.
The first case was decided before the law provided that the court might fix the time, within which the change should be perfected. The same section also provides, that “ only one change of venue shall be granted to the same party.” We do not think that the failure to perfect the change secures to the party the right to a second order for a change of venue. The language of the statute is, that only one change shall be granted. To hold that the statute only includes grants perfected, would give to the party the power of perpetual
The first reason for a new trial is not a ground for a new trial. The second is not available in this case. Two of the exceptions to the award were, that the damages awarded for lands taken and not taken are entirely inadequate to the injury actually sustained. Those exceptions covered all the damages to land by the appropriation. No evidence was admitted relative to or touching the damages not mentioned in the exceptions. The special finding of the jury in answer to the interrogatories shows that no damages were allowed for removing fences or a barn. The two items of one hundred and seventy-five dollars and nine hundred and, twenty-five dollars make one thousand and one hundred dollars, the amount of the general verdict. The first for land taken, and the other for damages to' land not taken. So that, if the court admitted incompetent testimony, it is shown "by the special finding of the jury that it did the appellant no harm. .
We have carefully read the evidence and think it sustains the verdict, and that the damages assessed are not excessive.
The jury were permitted to view the premises under special instructions of the court, before hearing any of the evidence. By agreement of the parties, witnesses were permitted to state their opinions as to the amount of damages sustained by the appellee. As might be expected, there was a wide difference in the amounts testified to. But we think, taking into consideration all the evidence on the subject, that the damages are not excessive. Indeed, we think the j ury would have been justified in fixing it at a higher sum.
The judgment is affirmed, with costs and five per cent, damages.