41 Ind. 263 | Ind. | 1872
Lead Opinion
—This was a proceeding commenced by the appellant against the appellee to appropriate a portion of his land on which to construct its road, the appellee having refused to relinquish the same, and the parties not having been able to make a contract for the same, according to section 7, i G. & PI. 475. The proceeding was commenced before a justice of the peace ifr Tippecanoe county. The three jurors summoned before the justice determined that the appellee sustained no damage by reason of the appropriation of the land. The appellee appealed to the Tippecanoe Civil Circuit Court. The venue was then changed to the White Circuit Gourt, and then to the Carroll Circuit Court, where there was a trial by the court, and a special finding, and, notwithstanding a motion for a new trial, a judgment for the appelle for five hundred dollars damages.
The only error assigned in this court is the overruling of the appellant’s motion for a new trial. The reasons for a new trial are the following: first, the court erred in the conclusions of law in allowing the defendant consequential damages, and refusing to charge him with consequential benefits to his lands; second, because the court erred in allowing ex
No question is presented by the record as to the correctness of the conclusions of law by the court. If such conclusions of law were incorrect, they should have been excepted to by the appellant, and assigned as error. A new trial is a re-examination of the facts. The City of Logansport v. Wright, 25 Ind. 512.
The amount of the damages awarded does not appear from the evidence to have been excessive. On the contrary, some of the witnesses estimate the amount higher than the finding of the court.
We discover no reason for granting a new trial because the finding is contrary to law, and we think it in accordance with the evidence. The question mainly discussed is that the court improperly included in the estimate of the damages the expense or cost of materials for a fence on each side of the road where it runs through the lands of the appellee, and we are referred to the Indiana Central Railroad Company v. Hunter, 8 Ind. 74. But in that case the evidence was excluded because the allegations of the complaint were too narrow to allow the evidence to be given. There is no such objection in this case. It seems to us to be a proper element of damages in such a case. The White Water Valley R. R. Co. v. McClure, 29 Ind. 536.
The judgment is affirmed, with ten per cent, damages and costs.
Rehearing
On Petition for a Rehearing.
—There is a petition for a rehearing filed in this case, in which counsel show so much confidence in their belief that the court has fallen into an error that we have thought proper to depart from the general rule and present some further views in overruling the petition. To be entirely fair with counsel, we give their positions in the very language of the petition:
“ We are considerably surprised to learn that we failed to assign these conclusions of law as error. We were under the impression that when we assigned the wrongful overruling of our motion for a new trial, we thereby covered our objections to the conclusions of law. ‘A motion for a new trial,’ says this court in their decision, 'is a re-examination of the facts.’ So it is, and it is also much more. All error, whether of fact or law, which occurs during the trial, is subject to review on a motion for a new trial. This is so at common law, and our statute expressly specifies 'error of law occuring at the trial and excepted to by the party making the application.’ The very decision quoted by this court, The City of Logansport v. Wright, 25 Ind. 512, sustains us in this case. Now if our motion brought under review the erroneous conclusions of law, and the court below, after considering the motion, adhered to its conclusions, does it not bring in issue the correctness of the conclusions when we assign in this court that there was error in overruling our motion? If we have mistaken the scope of our assignment of error in this case, then have we been misled by the present honorable bench which held, in Boulden v. Scircle,
When the trial is by the court, without a jury, under sections 340 and 341 of the civil code, 2 G. & H. 207, it is not necessary for the court to state its findings, except generally for the plaintiff or the defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall first state the facts in writing, and then the conclusions of law upon them, and judgment shall be entered accordingly. There are, in case the court is requested by one of the parties to find the facts and then the conclusions of law upon them, two things to be done. First, the court must state the facts, which, of necessity, involves the finding of the facts, for they cannot be stated until they have been found; and, second, the court must state the conclusions of law upon the facts. If the court, in discharging the first of these duties, that is, in finding and stating the facts, has erred, a motion for a new trial is the proper remedy of the party against whom the error has been committed. The action of the court in finding and stating the facts is somewhat like the action of a jury in finding and returning a special verdict in which they find the facts and refer the questions of law to the court for its decision. The facts are to be found and stated, before the court proceeds to state its conclusions. The conclusions of law are in the nature of inferences or conclusions from the facts, which form the basis for such conclusions or inferences. The second step in the discharge of its duties, in thus disposing of a case, is not taken until the first has been fully taken and is terminated. If the court has mistaken the law to be applied to the facts, as found, or has come to a wrong conclusion, this is not an error of law committed during the trial in such sense as to make it a reason for a new trial, or re
The petition is overruled.