56 Ind. 466 | Ind. | 1877
The appellants, in this cause, presented their petition to the appellee The Board of Commissioners of Cass County, praying therein that said appellee would grant them “ a view and establish a public highway,” described in said petition.
On the presentation of said petition, and proof of notice as required by law, the appellee The Board of Commissioners appointed, viewers, who subsequently reported that they had viewed and located said highway, and that it was a “ highway of public utility.” Afterward, the appellee Samuel S. Metsker and others presented to said board of commissioners a remonstrance
The appellee The Board of Commissioners of Cass' County moved the court below to dismiss the cause of action, so far as the same related to said board, because the said board had no interest in said cause of action, and was improperly made a party to the action; which motion was overruled by the court, and to this decision the appellee The Board of Commissioners excepted and filed its bill of exceptions.
This cause was tried by a jury, in the court below, and a verdict was returned, “ that the proposed highway will be of public utility, and that Samuel S. Metsker will sustain damages to the amount of one hundred and fifty dollars, by reason of locating the same upon his premises.” The appellee Metsker moved the court below, for a new trial, which motion .was overruled, and. said Metsker excepted. And the appellants moved the court
And the appellee Samuel S. Metsker moved the court below to set aside so much of the order of the court as required him to pay one-half of the costs herein; which motion was overruled by the court, and to this decision the appellee Metsker excepted.
In this court, the appellants have assigned the following alleged errors of the court below :
1st. In overruling the appellants’ motion to tax the costs in this case against the county ;
2d. In overruling the appellants’ motion to tax the costs in this cause to the county, and in ordering the damages assessed by the jury to be paid out of the county treasury;
3d. In making a conditional order on the finding of the jury, in this, in leaving it to the option of the board
4th. In ordering the appellants to pay any part of the costs in said cause, or of the damages assessed; and,
5th. In overruling the appellants’ motion to set aside .the order made in said cause, so far as made, ordering the damages to be paid at the option of the board of commissioners, or the appellants, and that one-half of the costs be taxed against the appellants, and in refusing to order the costs and damages to be paid out of the county treasury.
¥e will briefly consider and decide the several questions presented by these alleged errors, in their enumerated order.
1st. It is claimed by appellants, that the court below erred, in overruling their motion to tax the costs in this case against the county. The appellants failed to make their motion a part of the record, by a proper bill of exceptions; and, therefore, we might well say that the alleged error, of which appellants complain, is not presented by the record. But if it were, we should hold that the court below committed no error, in overruling appellants’ motion. This cause, in the court below, was merely a private controversy between the appellants, on one side, and the appellee Metsker, on the other, and the court, in our opinion, had neither the right nor the power to tax the costs of suit, or any part thereof, against the county.
2d. It would seem from the second alleged error, that the appellants assumed the position, that the court below had the power, and that it was the duty of the court, to order and require the appellee The Board of Commissioners of Cass County to pay the damages and costs in this case. "We can not approve of this position. In our opinion, the court below had no such power; and certainly its duty did not require the court to make any
3d. The appellants claim, that the court below erred in leaving it to the option of the board of commissioners to pay the costs and damages m ninety days, after the jury had found the road petitioned for to be a road of public utility. We can see no error in this order of the court. Where a majority of the viewers, appointed by the board, assess and report damages in favor of a remonstrant, the law leaves it to the option of the board to pay the costs and damages out of the county treasury; and we can-see no reason why the board should not have the same option where the remonstrant’s damages have been assessed by a jury. The fact that the jury have found the road to be of public utility can make no possible difference on this point, for the reason that reviewers to assess damages are never appointed until after viewers have reported the proposed road to be of public utility.
4th. It is claimed by the appellants, that the court below erred in ordering the appellants to pay any part of' the costs, or of the damages assessed, in this cause. So far as the damages were concerned, we do not find that the court made any order, requiring the appellants to pay any part of the damages. The order of the court gave the ■ appellants the option to pay the damages or not, within ninety days; but the payment, if made, was to be made of choice and not of compulsion. In regard to the costs,
5th. The last alleged error, assigned by the appellants, is, in the main, a resume of the preceding errors, and presents no question for our consideration which we have not already noticed. The appellants’ theory of this case seems to be this: that when the jury found the proposed highway to be of public utility, the board of commissioners of Cass county at once became liable for the damages assessed and the costs of suit, and that the court below had the power to tax both costs and damages against said board, and to compel the payment thereof. It might be well, very possibly, if this theory were the law, but we are bound to say that, in our opinion, it is not the law. Our conclusion is, that there is no error in the record of this cause, of which the appellants can complain.
The appellee Samuel S. Metsker has assigned on the record of this cause several alleged errors, which call in question the order of the court below requiring him to pay the one-half of the costs in this cause. It appears by a bill of exceptions, which is properly,, in the record, that the appellee Metsker, at the proper time, moved the court below to set aside so much of its order as required him to pay the one-half of the costs; which motion was overruled, and the appellee Metsker excepted. The question is, therefore, fairly before us, did the court below err in taxing the appellee Metsker with the one-half of the costs of this cause ?
It is provided by the 26th section of the highway act, that “Any person aggrieved by any decision of any board of commissioners, may appeal- therefrom to the circuit or eommon pleas court of such county,” etc. 1 R. S. 1876, p. 533. It would seem, from the record of this cause, that the appellee Metsker availed himself fully of this
On this state of facts, it seems to us that it would have been unjust and inequitable to have taxed the entire costs of the consolidated case against the appellants. The appellee Metsker had very unnecessarily, in our opinion, made two cases out of one, and they had been continued as separate cases, in the court below, for about eighteen months, before they were consolidated. It would be manifestly right for the appellee Metsker to pay the costs made in the first case before consolidation, and manifestly wrong to require the payment thereof by the appellants.
In the 36th section of “An act providing for the organi
In this cause, as consolidated, as we have seen, there were two issues presented to the jury for trial. By their verdict, the jury determined the first of these issues, the public utility of the proposed highway, in favor of the appellants. Under the provision of the code we have cited, upon the issues thus determined in their favor, the appellants were entitled to a judgment against the appellee Metsker, for their costs. Whether the costs on this issue amounted to just one-half, or to more or less than one-half, of the entire costs of the action, the record fails to disclose. The evidence is not in the record, and, in the absence of the evidence, we will presume, in favor of the decision of the court below, that its order requiring the appellee Metsker to pay the one-half of the costs of the action, on the issue determined against him, is right and for the right amount.
The appellee The Board of Commissioners of Cass County has also assigned certain cross-errors on the record of this cause, which fairly present the question, whether or not, in such a case as this, the board of county commissioners is a necessary, or even a proper, party to the cause. In this case, the question is one of but little, if any, practical importance, as no order or judgment was made by the court below either for or against the county board. As the question is made in this case, however, not only by an assignment of errors, but by an argument of
It is very clear, we think, that the appellee The Board of Commissioners was not a necessary party to either of the appeals taken from its decisions, in this cause, to the court below. In the case of Wright v. Wells, 27 Ind. 65, it was held by this court, that, where an appeal was taken from an order of the county board, establishing a public highway, “ the board was not a necessary party.” This was the only point for decision.in the case cited, and was correctly decided. But the opinion in the ease contains a dictum, to the effect that, where the appeal is taken from the order of the board on the subject of damages, possibly the board would be a necessary party, “inasmuch as the damages obtained might be ordered to be paid out of the county treasury.” In our opinion, this expression' of opinion is incorrect, and the reason assigned for it is untenable. Eor, as we construe the law on this subject, the question as to whether the costs and damages shall be paid out of the county treasury or not, is a question solely for the consideration and determination of the county board. If “ the board shall consider the proposed highway,” etc., “ to be of sufficient importance to the public, they shall order the costs and damages to be paid out of the county treasury.” This is the language of the statute on this subject, and, in our opinion, it leaves the matter entirely and exclusively within the discretion of the county board. hTo other court or tribunal is clothed by law with any jurisdiction over the subject; nor can any other court or tribunal compel a county board to consider any proposed highway to be of public importance, or order the county board to “ order the costs and damages to be paid out of th.e county treasury.” In the location, opening, vacation, or establishment of public highways, the county board is merely a court to hear and determine, under and aeeording.to law, the rights of the parties litigant before it. In such
In our opinion, the court below erred, in overruling the motion of the appellee The Board of Commissioners of Cass County for the dismissal of this cause as to said appellee; but as the court made no order or judgment against said appellee, this error will not affect our decision of this cause.
Upon the whole case, our conclusion is, that the court below committed no errors in this cause, of which either the appellants or the appellee Metsker can complain.
The judgment of the court below is affirmed, at the costs of the appellants.