108 Ind. 113 | Ind. | 1886
Errors are assigned here by appellant, the-defendant below, calling in 'question the decisions of the circuit court in overruling (1) its demurrer to the first paragraph of appellee’s complaint, (2) its demurrer to the second paragraph of such complaint, and (3) its motion for a new trial.
This suit was commenced on the 29th day of September, 1884. In the first paragraph of his complaint appellee alleged that he then was, and for five years last past had been, the owner in fee simple of lots numbered from 11 to 18, both inclusive, in Wilson’s subdivision of out-lot No. 18, in Merrill’s addition to the city of Plymouth, in Marshall county; that such lots abutted.on a public street of such city, known as First street, sixty feet wide, for the distance of-hundred feet along the west line of such street; that, as the owner of such lots, appellee was also the owner in fee simple of the west thirty feet of such street immediately in front of" his lots, extending from the front line of such lots to the-center or middle line of such street; that, during such five-years, appellee had made valuable and lasting improvements, of the value of $5,000, on such lots, in the erection of a dwelling-house wherein he and his family resided; that within the last two years ingress and egress to and from appellee’s lots, and his residence and other buildings thereon, had been obstructed and prevented on the east side thereof by two railroad tracks constructed upon and along said street, and in constant use by appellant, in moving and transporting its cars and locomotives on and along such tracks on said street, in front of and near to appellee’s lots and residence; that by the construction and constant use of such "railroad tracks on said street in front of and near to appellee’s residence property, appellant had caused such an obstruction to the free use:
The second paragraph of the complaint does not differ materially from the first paragraph, in its statement of the facts constituting appellee’s supposed cause of action against the appellant.
To each of the paragraphs of appellee’s complaint appellant’s demurrer, for the alleged insufficiency of the facts therein to constitute a cause of action, was overruled by the court.
It is earnestly contended by appellant’s learned counsel, that the court below erred in each of these rulings. It will be observed that while appellee carefully alleged that he was the owner in fee simple of the west half of First street, in the city of Plymouth, extending from the front or east line of his lots eastwardly thirty feet to the middle or center line of such street, yet he nowhere averred, in either paragraph of his complaint, that, in the construction and use of its two railroad tracks on such street, appellant had entered upon, occupied or used, by either of such tracks, that part of such street of which he claimed to be such owner. For the want of such an averment, appellant’s counsel earnestly insist that each paragraph of appellee’s complaint was insufficient to withstand its demurrer thereto.
This objection seems to be well taken, as to each paragraph
Conceding, in the case in hand, that appellee was the owner in fee simple of First street, in the city of Plymouth, from the eastern or front line of such lots to the middle line of such street, we can not presume in the absence of averment
We are of opinion, therefore, that the trial court erred in overruling appellant’s demurrer to each paragraph of appellee’s complaint.
Under the alleged error of the court, in overruling the motion for a new trial, it is claimed by appellant’s counsel that the court, clearly erred in giving the jury, at appellee’s request, a certain instruction. The point is made by appellee’s counsel, and is relied upon apparently with much confidence, that the bill of exceptions, containing the evidence on the trial and the instructions given and refused by the court, was not filed within the time granted, and, therefore, is not properly a part of the record. It is shown by the transcript before us, that the motion for a new trial was overruled and judgment rendered on the 4th day of April, 1885, and ap
It will be seen from the foregoing abstract of the record, that while appellant’s bill of exceptions was prepared and pi’esented to the judge below, for his signature, within the sixty days allowed by the court, yet it was not in fact signed by such judge and filed until nearly one month after the expiration of such sixty days. Under the provisions of section 346 of the civil code of 1852, and the rules of practice founded thereon, it is very clear that the bill of exceptions, so signed and filed, would have constituted no proper part of the record of this cause, on an appeal to this court. Dunn v. Hubble, 81 Ind. 489.
But the civil code of 1881 made a radical change in the practice theretofore existing, in relation to bills of exceptions, in so far, at least, as the filing thereof is concerned. In section 629, E. S. 1881, which is section 406 of the civil code of 1881, it is provided in effect that when the record does not otherwise show the decision excepted to, or the grounds of objection thereto, “the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions,' which, if true, he shall promptly sign and cause it to be filed in the cause; if not true, the judge shall correct, sign, and cause it to be filed without delay.” It is also provided that “ The date of the presentation shall be stated in the bill of exceptions,” and further that “ delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof.” Under these provisions of
In Creamer v. Sirp, 91 Ind. 366, it was held in effect that when time is allowed within which to prepare and present a‘ bill of exceptions, and it is shown by such bill that it was presented to the judge within the time allowed, the bill of exceptions will, under the provisions of section 629, R. S. 1881, constitute a proper part of the record, on an appeal to this court, although it may not have been filed until after the expiration of the time allowed. So, it was held, also, in Hamm v. Romine, 98 Ind. 77.
In support of their position appellee’s counsel cite and rely upon La Rose v. Logansport Nat’l Bank, 102 Ind. 332; but what was there said, in seeming conflict with our previous cases and what we here decide, was subsequently explained and modified in the recent case of Robinson v. Anderson, 106 Ind. 152. Where it is shown by the bill'of exceptions that if was .presented to the judge, for his signature, within the time allowed by the court, and the’ record shows that such bill has been filed either before or after the expiration of such time, under the provisions of section 629, supra, such bill of exceptions will constitute a proper part of the record of the cause on an appeal to this court. “ When so filed, it shall be a part of the record,” is the language of the statute. Louisville, etc., R. W. Co. v. Harrigan, 94 Ind. 245; Pratt v. Allen., 95 Ind. 404; Shulse v. McWilliams, 104 Ind. 512.
In the case in hand, as wé have seen, the date of the presentation of the bill of exceptions, as stated therein, was within the time allowed by the court; and it was shown by the record that such bill of exceptions was duly filed in the-court below, on the 1st day of July, 1885. It follows, therefore, from what we have said, that the bill of exceptions, containing the evidence and the instructions given and refused, constituted a proper part of the record before us on this-appeal.
We have said thus much upon the question of practice presented, because appellee’s counsel have seemed to rely with implicit confidence, in argument, upon the point that the bill of exceptions is not properly a part of the record of this-cause, and not because we have deemed it either necessary or proper for us to consider and decide now the question,, whether or not the trial court erred in giving the jury, at appellee’s request, the instruction claimed by appellant’s counsel to have been erroneous.
Our conclusion in relation to the insufficiency of each paragraph of appellee’s complaint requires the reversal of the judgment below, and renders it unnecessary for us now to-consider or decide any of the questions arising under the alleged error of the court in overruling appellant’s motion for a new trial herein.
- The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrers to each-paragraph of the complaint, and for further proceedings not inconsistent with this opinion.