Wabash Railway Co. v. Todd , 186 Ind. 72 ( 1916 )

On Petition for Rehearing.

Spencer, J.

6. Appellant has earnestly requested a reconsideration of the issues presented by this appeal, to the end, either that a rehearing may be granted.and the decree of the Wabash Circuit Court in all things reversed, or that the judgment of affirmance be so modified as to relieve appellant' from building the bridge in question until sufficient funds are provided for completing the remainder of the improvement of which it is a part. Particular attention is directed to the statement in our original opinion that the matters suggested by the second, third and fourth paragraphs of appellant’s answer, if sustained by proof, “might affect the terms and conditions of the court’s order,” and error is claimed in our holding that these matters were provable under the general denial. It is true that, under our Code, “all defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially” (§361 Burns 1914, §356 R. S. 1881), and that, “under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove.” §386 Burns 1914, .§377 R. S. 1881. In relying on these statutory provisions, however, appellant misconstrues our decision concerning the extent to which the facts pleaded in the affirmative answer may affect the issues. If sufficient to constitute a legal defense to appellee’s petition, they would necessarily have to be pleaded specially and it would be error to strike out an answer which contained such defense, but the circumstances here relied on do not in any sense constitute a bar to the relief which is sought. They present only matters of fact which the trial court may consider, together with other facts and circumstances, in so fixing the terms of its decree as, in its discretion, shall seem right and just. Proof of these facts is admissible under the general denial on the same principle that evidence of circumstances which tend only to re.duce the amount of recovery may be so received in an action for damages.

7. It must be borne in mind: (1) That the drainage law does not determine the order in which the several sections of a proposed improvement shall be constructed, and (2) that it does authorize the levy and collection of additional assessments, if necessary, to complete a work which has been judicially established. This court must presume that proper steps will be taken to finish the drain as ordered and cannot pass on issues of fact such as appellant seeks to present. However, since the time heretofore fixed for the construction of the bridge in question has expired during the pendency of this appeal, it is obvious that the court’s order must be modified in that particular.

On serious reconsideration of the matters presented we conclude that this cause should be, and it is, remanded to the Wabash Circuit Court with instructions to fix such time for the completion of said bridge by appellant as shall seem fair and reasonable under all the circumstances in issue. In all other respects the judgment of that court is affirmed and appellant’s petition for a rehearing is overruled.

Note. — Reported in 113 N. E. 997, 114 N. E. 975.