158 Ind. 344 | Ind. | 1902
Action by appellees to recover from appellant the cost of constructing a fence along a portion of appellant’s right of way which abuts on the lands of appellees, under the provisions of §§5323, 5324, 5325 Burns 1901 (Acts 1885, p. 224). The substance of these sections, is that a railroad company shall construct, and thereafter keep in good repair, fences, which may be made of barbwire, on both sides of their railroad, sufficient and suitable to prevent horses, mules, cattle, sheep, hogs, and other stock from getting on the railroad, except at the crossing of public highways, and along platted grounds in towns and cities. If a railroad company neglects to build or keep such fence in repair, the owner of the abutting land shall have the right, after thirty days’ notice to the company of his intention so to do, to enter upon the right of way and construct or repair so much of said fence as runs along his land, and when completed he may present to the company a verified, itemized statement of the cost of such fence, and on which account, if not paid within sixty days thereafter, he may bring suit in any court of competent jurisdiction, and recover the reasonable value of such fence, together with his attorney’s fees.
The action was begun before a justice of the peace, in which court the plaintiffs recovered a judgment for $49.69. Appellant appealed to the circuit court. In the latter court appellant’s demurrer, to the complaint for insufficiency of facts was overruled. The case went to trial before the court on the general issue. At the conclusion of the plaintiffs’ evidence, appellant’s demurrer to the evidence for its insufficiency to support the cause of action was overruled, and judgment rendered against it for $49.69. Appellant’s motion for a new trial having been overruled, it then filed its motion and prayer for an appeal to this court on the
Appellees move a dismissal of the appeal for want of jurisdiction in this court to consider it. Appellant claims the right of appeal under the provisions of §§1337f, 1337h Burns 1901 (§§6, 8 Acts 1901, p. 566), which follow : Section 6. “No appeal shall hereafter be taken to the Supreme Court or to the Appellate Court in any civil case which is within the jurisdiction of a justice of the peace, except as provided in §8 of this act.” Section 8. . “Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the constitutionality of a statute, State or federal, or the proper construction of a statute, or rights guaranteed by the State or federal Constitution, and which case would be otherwise unappealable by virtue of §6 or §7 shall be appealable directly to the Supreme Court, for the purpose of presenting such question only.”
It is conceded that, under the law as it stood prior to the act of 1901, this case was unappealable; it having originated before a justice of the peace, and the amount in controversy being less than $50. It is contended, however, with much reason and force, that the purpose of the General Assembly, by the new act, was to provide a procedure by which questions involving the validity of a franchise or of a municipal ordinance, or the constitutionality or construction of a statute, being questions which affect the general public, should be carried directly to the Supreme Court for settlement with as little delay as possible; and that any case originating before a justice of the peace, involving such a question, and in which the question is prop
Appellant claims that its question of statutory construction arises upon its demurrer to the evidence. In the complaint it is alleged, with other averments necessary under the statute, that “the plaintiffs entered upon said right of way abutting on said real estate, and repaired said fence, and put the same in good condition, and made a fence proper and sufficient to turn horses, cattle, mules, sheep, hogs, and other stock”, and “that no part of said fence built and repaired by the plaintiffs, for which compensation is sued for, is at the crossing of any public road or highway.” The insistence is, that in the plaintiff’s evidence given in support of this complaint there is a total absence of any
In no similar ease originating before a justice of the peace can we do more than define the controverted meaning of some statute, for the guidance of the court below. With the merits of the case we have nothing to do. Then, should we assume to grant all appellant asks, and declare that, under the statute, appellees cannot recover without proving the two facts stated, how would appellant’s situation be improved ? We cannot consider the weight of the evidence, nor whether there is, or is not, any evidence on these essential questions of fact; and in the absence of an affirmative showing that appellant has been injured, or probably injured, by an erroneous construction of a statute in some ruling of the trial court, there can be no reversal. Such a showing appellant has not made.
Appeal dismissed.