Sisson v. Carithers , 35 Ind. App. 161 ( 1904 )

Roby, J.

Appellees filed their petition for the location and establishment of a public highway in Gibson county. Viewers were appointed by the board of commissioners, in accordance with the statute; who reported that the proposed highway would be of public utility. Appellants, Sisson, Welbom, Hyneman and Yeager, thereupon filed their remonstrance upon the ground that the proposed highway would not be of public utility. Reviewers were thereupon appointed, and thereafter filed a report in favor of the public utility and establishment of the proposed highway. The description of the same in both reports was identical. The 'width in the reviewers’ report was fixed at thirty feet, but was not stated in the original report. Thereupon each of the appellants filed a separate remonstrance for damages. Reviewers were appointed thereon who reported, assessing damages as follows: Sisson, $100; Welbom, $40; Hyneman, $20; Yeager, $20. The board thereupon ordered that the highway be established as set out in the report, provided that the petitioners should pay the damages assessed as aforesaid to the county treasurer within thirty days from February 5, 1901. The petitioners thereupon filed a treasurer’s receipt for. said sum, and appellants prayed an appeal to the circuit court. Such proceedings were had as that the case was ultimately tried by a jury in the Vanderburgh Circuit Court; a verdict being returned in favor of the public utility of the proposed highway, and assessing damages to the appellants as follows: Yeager, nothing;■ Welborn, $35; H’yneman, $23.50; Sisson, $225. Appellants thereupon filed their written motion in arrest of judgment, which was overruled, and judgment rendered upon the verdict.

1. The eighth assignment of error is that the court erred in overruling appellants’ motion in arrest of judgment. The original petition did not contain the names of the owners of the land through which the proposed highway would pass. It was however amended in the commissioners’ court by the insertion of said names, upon leave granted, and the cause was tried in the circuit court upon such amended petition. The amendment was properly allowed. Hedrick v. Hedrick (1876), 55 Ind. 78.

2. Whatever force the objection originally had was taken from it by the amendment.

One page of appellants’ bifief is given over to a “plat of the proposed highway.” The route described in the petition. and. that adopted by the viewers are thereon shown as being widely divergent, and a substantial portion of the argument is based upon such divergence. The return to a writ of certiorari shows that the identical route set up in the petition is followed in the report of the viewers and reviewers, the apparent difference being due to a clerical omission by the clerk. In accordance with the suggestion made in appellants’ reply brief, we “let that pass.”

3. The board of commissioners had original jurisdiction of the subject-matter of this proceeding. Appellants were notified of its pendency, appeared, and vigorously contested the issue. Whatever irregularities might have existed in the proceedings, it is manifest that the court did have jurisdiction at the end as at the beginning.

4. The question of costs was disposed of by apportioning them among the several parties, in a manner which is neither claimed nor shown to have been an abuse of tire court’s discretion, and which, so far as the appellant Yeager was concerned, is more favorable to him than he might have asked.

We are of the opinion that no substantial error was committed at any stage of the case, and the judgment is therefore affirmed.