Logansport Gas-Light & Coke Co. v. Davidson

51 Ind. 472 | Ind. | 1875

Downey, J.

The appellee sued the appellant, and obtained judgment. The appellant presents two questions in this court: ,

1. As to the sufficiency of the complaint. ■

2. As to the correctness of the ruling of the circuit court in refusing to grant the appellant a new trial.

The action originated before a justice of the peace.

The plaintiff alleges, in his complaint, that on the 15th day of March, 1872, he was the tenant in possession of certain real estate in Logansport, consisting of part of a lot, on which was a boarding-house used by him, with a cellar under it, and a well appurtenant thereto; that the defendant, being a corporation and the owner of certain works for the manufacture of gas-light and coke, etc., and then and ever since operating the.same, etc., in the vicinity of the plaintiff’s said house and lot, constructed and - put in operation a large tank for the manufacture of gas-light from naptha or something similar; that the said tank was so imperfectly, carelessly and negligently handled by the agents and servants of the company, that large quantities of said material escaped into the ground, and became mingled with the water which flowed into the plaintiff’s said well, and injured the same and made it unfit for use, causing the same to become nauseating, stinking and' unhealthy, and permeated the ground in and' around the plaintiff’s said cellar, and by impregnating the air of the same with disgusting fumes of said material, rendered it unfit for use for the purpose for which it was intended, etc., and causing the air in and around said plaintiff’s boarding-house to become and be foul and unhealthy, so that his boarders left the same, etc., and his family became and was sick, causing him to pay one hundred dollars in doctors’ bills; that, by reason of the same, he had to carry water from a great distance, at an expense of one hundred dollars; and that, by the damage to the cellar, he was compelled to store his provisions elsewhere, at an expense of one hundred ’ dollars, all of which was caused by the said careless, negligent, unskilful and unlawful acts of the defendant, to the plaintiff’s damage one hundred and ninety dol-. lars.

There was a trial by jury, and a general verdict for the plaintiff, with answers to interrogatories propounded by the defendant. Motion for a new trial overruled, and judgment on the general verdict.

Counsel for appellant do not urge the insufficiency of the complaint. They have pointed out no objection to it. Ve have set forth the substance of it, and, in the absence of any specific objection, we shall assume that it is sufficient.

After some time spent in the examination of the questions argued under the second assignment of errors; we have-come to the conclusion that the bill of exceptions, on which they depend, is not legally in the record, and the questions, therefore, not properly before us for decision.

The motion for a new trial was overruled on the thirty-sixth day of the term, June 6th, 1874. An exception to the ruling was then taken, but it does not appear that any time was given in which to file the bill of exceptions. It was filed, in the clerk’s office, on the 13th day of June, 1874. The conclusion of the bill of exceptions is as follows:

“Now, this, the defendant’s bill of exceptions, is signed and sealed within the time limited by the court, and ordered to be made part of the record herein.” It is dated June 13th, 1874.

It is settled by the rulings of this court, that when the bill of exceptions is not filed at the time the ruling of the court is made, to which the exception is taken, the party excepting must obtain, and the court must fix, a definite and reasonable time Avithin Avhich to file the bill, and the record must affirmatively show that it was filed within the time limited.

It Avas said, in Lansing v. Coats, 18 Ind. 166, after quoting the statute: “ Under this statute the time fixed by the court for the filing of the bill of exceptions should be definite and reasonable. ”

The case of Fulkerson v. Armstrong, 39 Ind. 472, holds that the certificate of the clerk that a bill of exceptions Avas filed within the time alloAved is not sufficient, but he must give “the date of the filing, that we may knoAV that it was done in time.”

We think that the mere statement of the judge in the bill of exceptions, that it Avas signed Avithin the time alloAved, does not sufficiently show that a definite time was given in which to file the bill of exceptions. We do not hold that if the bill of exceptions had stated a definite time givTen, this would not have been sufficient as fixing the time allowed.

The judgment beloAv is affirmed, with costs.

Petition for a rehearing overruled.