130 Ind. 594 | Ind. | 1892
Proceedings for laying out a highway were prosecuted before the board of commissioners of Vermillion county. The appellant did not appear, but, after the decision of the board in favor of the petitioners, appealed
It is firmly settled that in cases of this character objec-t tions must be appropriately presented to the board of commissioners or they can not be made available in the circuit court on appeal. Green v. Elliott, 86 Ind. 53, and cases cited; Wells v. Rhodes, 114 Ind. 467; Forsythe v. Krueter, 100 Ind. 27; Lowe v. Ryan, 94 Ind. 450; Budd v. Reidelbach, 128 Ind. 145, and cases cited. In Metty v. Marsh, 124 Ind. 18, it was said: “ It has so often been adjudged by this court, in cases analogous to this, that no matter not put in issue before the board of commissioners can be tried on
No attack upon the petition was made either in the circuit court or before the board of commissioners; it is, however, here alleged as error that “ the petition is insufficient, for the reason that it does not contain a sufficient description of the proposed location of the highway.” Waiving a consideration of the question whether the attack can be here made for the first time, we hold that the description is not so radically defective as to authorize a reversal of the decision of the commissioners. Whether the description would have been sufficient had it been appropriately and reasonably challenged is not the question, for the question is whether it is sufficient to repel an original attack in the court of last resort.
If it were granted that the circuit court pursued a wrong mode in dismissing the appeal instead of rendering judgment against the appellant, it would not follow that there was available error, for the appellant was not harmed. As it had no issue upon which it could have possibly succeeded, the mode in which the case was put out of court was not of controlling importance. We are inclined to think that the appellant did not pursue the proper course in appealing, and that the motion to dismiss was, for that reason, properly sustained, but it is unnecessary to decide that question.
Judgment affirmed.