101 Ind. 42 | Ind. | 1885
This action was brought by the appellee upon a bond executed by the appellants. The complaint consisted of two paragraphs, which were substantially alike. In each it was averred, in substance, that on the 22d day of July, 1880, the appellants and others presented to the board of commissioners of Vermillion county, a petition for the establishment and construction of a free gravel road, in said
The only apparent difference, in substance, between the two paragraphs of the complaint is, that in one paragraph it was averred that the board set aside its order and proceedings for the improvement at the instance of the petitioners- and the appellants, while in the other it was alleged that it was done at the request of “ most of said petitioners ” and the appellants ; and in one paragraph the aggregate amount only of all the expenses incurred in the proceedings -was mentioned, while in the other the expenses to the time the board ordered
A motion by the appellants to strike out a part of the second paragraph of the complaint was sustained by the court. The clerk has copied into the transcript what purports to be the motion so made by the appellants, but as it was not embodied, with the ruling of the court thereon, in a bill of exceptions, nor made a part of the record by an order of court, it constitutes no part of the record'in this cause, and is improperly in the transcript, and for that reason can not be examined or considered by us for the purpose of ascertaining what part of the pleading was stricken out by the court. See Berlin v. Oglesbee, 65 Ind. 308; Dunn v. Tousey, 80 Ind. 288; Klingensmith v. Faulkner, 84 Ind. 331; Peck v. Board, etc., 87 Ind. 221; Saunders v. Heaton, 12 Ind. 20.
As there is nothing legally before us showing what part of the pleading was stricken out, we must consider it with reference to its sufficiency, as we find it in the record, the same as if no such motion was made. A separate demurrer to each paragraph of the complaint was overruled, and the appellants refusing to answer over, final judgment on demurrer was rendered against them, in favor of the appellee, for $164, from which they appeal, and assign as errors the rulings of the court upon said demurrers.
The liability of the appellants, if any existed against them, on the bond, which is the foundation of the action, was created and is to be determined by the provisions of the statute under and by virtue of which the bond was executed. The statute, Acts 1877, p. 82, provides:
“ Section 1. The board of commissioners of any county in this State shall have power, as hereinafter provided, to lay out, construct or improve, by straightening, grading, or draining in any direction required to reach the most convenient and sufficient outlet, paving, gravelling, or macadamizing any State or county road, or any part of such road, within the limits of their respective counties.
*45 “ Sec. 2. Upon the presentation of a petition stating the kind of improvement prayed for, and the points between which the same is asked, signed by five or more of the landholders whose lands will be assessed for the cost of the improvement, and the filing of a bond, signed by one or more responsible freeholders, to whom the petitioners shall be responsible pro rata, conditioned for the payment of the expenses of the preliminary survey and report, if the proposed improvement shall not finally be ordered, the board.of commissioners shall appoint three disinterested freeholders of the county as viewers, and a competent surveyor or engineer to proceed, upon a day to be named by the commissioners, to examine, view, lay out or straighten said road, as in their opinion public convenience and utility require,” etc. The above sections also appear in the Revised Statutes of 1881, as sections 5091 and 5092.
A board of commissioners have no authority or power to act or take any steps whatever in a proceeding for the establishment and construction of a free gravel road, under the provisions of the statute above set forth, until a bond, as therein required, is first executed and filed. The obvious purpose of the statute in requiring such a bond to be given is to relieve the county, ultimately, from the payment of the 'expenses incident to the proceeding, in the event that the improvement prayed for is not finally ordered by the board to be made.
The only objection urged by the appellants in this court to the sufficiency of the complaint is that it affirmatively shows that no cause of action existed against them upon the bond which they so executed, as it appears by the averments in each paragraph of the complaint that the board of commissioners directed, by its order, the improvement to be made. It is insisted by the appellants that the order so made resulted in satisfying the condition of the bond and discharging its makers from any liability thereon, and that the sub
It is further insisted by the appellants that unless all of the petitioners united in the request for the .revocation of the order, the board had no power to revoke it. The petitioners and all other persons interested in the proceeding were before the board, and if any of them felt aggrieved at the decision of the board, they had the right to appeal therefrom to the proper court. If any error was committed by the board in revoking the order, it was committed at the instance of the appellants and in their favor, and, therefore, they can not complain of such error. See Barker v. Hobbs, 6 Ind. 385; Robertson v. Caldwell, 9 Ind. 514; Minot v. Mitchell, 30 Ind. 228; Buskirk Pr. 119.
The demurrers were properly overruled, and the judgment of the court below should be affirmed.
Per Curiam. — The judgment of the court below is affirmed, at the costs of the appellants.