28 Ind. App. 174 | Ind. Ct. App. | 1902
Appellees filed a petition for the location of a public highway and the board of commissioners of Rush
The reason for the statutory provision, §6712 Burns. 1901, §5015 Horner 1901, is that in its absence the machinery of the law might be set in motion by persons having no interest in the subject-matter of the proceeding, and unaffected by the proposed improvement, thereby putting interested land owners to the expense of useless litigation or of making undesired improvements. Conaway v. Ascherman, supra.
The power to allow amendments to petitions in highway oases is well established. Hedrick v. Hedrick, 55 Ind. 78; Burns v. Simmons, 101 Ind. 557; McKeen v. Porter, 134 Ind. 483; Bronnenburg v. O’Bryant, 139 Ind. 17. The exercise of such power is not unlimited but is subject to review. Burns v. Simmons, supra. The courts exercise greater liberality in allowing the defendant to amend his answer than in permitting the plaintiff to amend his complaint, for the reason that the plaintiff may dismiss and commence another action while the defendant would in many cases, by the refusal of an amendment, forever lose his defense. Garrison v. Goodale, 23 Ore. 307, 31 Pac. 709;
An amendment which changes the nature of a cause of action is not allowable after the trial has been concluded. Levy v. Chittenden, 120 Ind. 37, 41; Proctor v. Owens, 18 Ind. 21, 81 Am. Dec. 341. One test by which to determine if a new cause of action is alleged is to inquire if the same evidence would support both the original and amended complaints. Ohio, etc., R. Co. v. Selby, 47 Ind. 471, 497, 17 Am. Rep. 719; Levy v. Chittenden, supra.
When the so called, amended petition was filed in this case, the petitioners had had a finding in their favor by the original viewers, and reviewers appointed on the application of the defendants were presumably ready to return a second report. The machinery of the law had been put in motion’ and the petitioners were either entitled to the establishment of the highway as asked or to nothing. The cause of action was wholly changed by the amendment. Evidence sufficient to justify the establishment of the one highway might be wholly insufficient as to the other. The board of commissioners recognized this fact and treated the amended petition as an original one appointing viewers thereon to report upon the public utility, and to lay out and describe the proposed highway. The trouble with this was that no notice had been given by means of which persons interested in the last described road could determine what, if any, action they desired to take in opposing or assenting to the proceeding. Assuming that the amended petition was signed by the attorneys of the petitioners, and for them as Avas no doubt the case, it does not follow that six of the freeholders included among them were residents of the immediate neighborhood of the last described highAvay. The board could not adjudicate this question because no notice had been given bringing interested parties into court, and it follows that the motion to dismiss should have been sustained.
Judgment reversed, cause remanded with instructions to sustain motion to dismiss.