Rayburn v. Williams

54 Ind. App. 617 | Ind. | 1913

Shea, J.

This was an action in the court below by appellees against Joseph Riggs, as construction commissioner, together with certain interested property holders, seeking to enjoin them from collecting or attempting to collect certain- assessments levied against the lands of plaintiffs for the construction of a certain ditch in White Post Township, Pulaski County, Indiana, known as the “Rayburn Ditch.” Upon a special finding of facts and conclusions of law, it is stated in the briefs that judgment was rendered in favor of appellees granting an injunction as prayed for in the amended complaint.

It is assigned that the court erred: (1) In overruling appellants’ motion to strike out the disclaimer of Prank Tracey and others, appellees; (2) in overruling appellants’ demurrer to appellees’ amended complaint; (3) in its statement of conclusions of law on the facts found; (4) in overruling appellants’ motion for a new trial. The other assignments of error present no question, as hereafter shown.

1. The first assignment properly presented is the alleged error of the court in overruling appellants’ motion to strike out the disclaimer of Prank Tracey and others, to which an exception seems to have been properly reserved. Tracey and others asked that they be discharged from the payment of costs, because, as alleged in the pleading, they had no interest in the questions involved in the litigation. What disposition was finally made of this question the briefs do not disclose. Appellant must bring to this court a record showing prejudicial error before he he can hope for a reversal of the cause. Vesey v. Day (1910), 175 Ind. 406, 409, 94 N. E. 481; Smith v. Collins (1914), - Ind. App. -, 103 N. E. 12; Allen v. Gavin (1892), 130 Ind. 190, 29 N. E. 363; Kernodle v. Gibson (1887), 114 Ind. 451, 17 N. E. 99; Elliott, App. Proc. §195.

2. 3. The amended complaint contains all the essential allegations constituting fraud on the part of appellants, practiced upon appellees, by means of which they were prevented from filing a remonstrance at the proper time, and the demurrer to the amended complaint was properly overruled. Neither the special finding of facts, nor conclusions of law, nor the substance thereof, is set out in appellants’ brief. It has been repeatedly held by both this court and the Supreme Court that the failure to comply with Eule 22 in this respect presents no question to this court. State v. Lukins (1908), 43 Ind. App. 341, 87 N. E. 246; Chicago Terminal, etc., R. Co. v. Walton (1905), 165 Ind. 253, 74 N. E. 1090; Collins v. McDuffie (1883), 89 Ind. 562.

4. Under the motion for a new trial it is urged that the decision of the court is not sustained by sufficient evidence and is contrary to law. An examination of the briefs does not disclose that there was a failure of proof upon, any essential point in this case, and this court will not weigh the evidence. Delaware, etc., Tel. Co. v. Fiske (1907), 40 Ind. App. 348, 351, 81 N. E. 1110, and authorities cited; Parkison v. Thompson (1904), 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677.

5. No question is presented, either in “Points and Authorities” or in the argument in appellants’ brief on the error predicated that the decision of the court is contrary to law. All presumptions are indulged in favor of the rulings of the trial court, and since no prejudicial error is presented by the briefs in this case, the judgment is affirmed. Judgment affirmed.

Note.—Reported in 103 N. E. 116. See, also, under (1) 3 Cyc. 387; (2) 22 Cyc. 924, 929; (4) 3 Cyc. 275.