191 Ind. 394 | Ind. | 1921
The board of public works of the city of Gary adopted resolutions for opening a street across appellant’s railroad tracks and lands, and fixing the benefits at $1 and the damages at $1, and thereafter overruled a remonstrance filed by the appellant, and confirmed the award of benefits and damages. Appellant appealed to the superior court, where a trial was had, without a jury, in June, 1917. The record does not disclose that anything more was done in the matter until March 20, 1918, at the March term of court, when the court announced a finding that the appellant was entitled to damages in the sum of $2,070 and its costs, a§ against the appellee, and was chargeable with benefits in the sum of one dollar, and judgment was entered accordingly. Six days later, at the same term of court, the record recites that the defendant abandoned the condemnation proceedings and paid the costs,
It was not error to set aside and vacate the judgment awarding damages and benefits.
The judgment being vacated, the cause stood as if it had never been entered, and the appellee had whatever power to abandon and discontinue the condemnation proceeding it possessed before such judgment was rendered.
The statute under which the condemnation proceeding was prosecuted provided that:
“If upon such appeal (to the circuit or Superior-court) the benefits or damages assessed or awarded by the board (of public works) be diminished or increased, the city may, upon the payment of costs, discontinue such proceedings * * §8705 Bums’ Supp. 1921, Acts 1915 p. 689, §2.
No error was committed in overruling appellant’s demurrer to appellee’s motion to vacate the judgment and discontinue the proceeding, and appellant’s motion to strike out that motion.
The judgment is affirmed.