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cannot be granted. Take this case: Mrs. remonstrance that they can be considered, Merrill is the life tenant; three of her children, remaindermen, reside in Howard county; the ditch runs through their land; if an assessment is made against the land, the burden must be borne by her, and by them. Hay v. McDaniel, 26 Ind. App. 683, 60 N. E. 729.

For the purpose of obtaining jurisdiction to assess the land, it is sufficient to describe the land as it appears to be owned by the last tax duplicate or record of transfers, but that is a matter wholly apart from the actual ownership of the land, and the fair construction of the statute is that, not only those who are named in the petition, but in addition those "who may be affected by any assessment," "or damages" (damaged). The object is to enable two-thirds of those who are really affected to express their desires and defeat a proceeding if they so elect. If this were not so, it would be an easy matter, in case of numerous persons owning as tenants in common by inheritance, whose lands still stand on the tax duplicate in the name of the ancestor, to defeat their rights, arising from silence, by not naming them in the petition, when silence may be as effective as affirmative remonstrance. It is conceded that they may come in by remonstrance, and are then to be counted, but they may be affected by silence as well as by affirmative action, for they may be, and in this case were named in the report and brought in by notice. The fact that they may be affirmatively heard is a concession that they are affected, because they could not otherwise be heard; and, if they choose to sit silent, they may do so, let the result be what it may, but they none the less go to make up the-landowners affected. Under former laws, the power of general remonstrance was restricted to two-thirds in number of those

named in the petition, resident of the county or counties affected by the drain. Under those acts, theoretically at least, all persons to be affected were made parties, and as the to be affected were made parties, and as the remonstrance preceded the report, those named were presumptively all the persons affected, and so it was held that the right to a general remonstrance did not exist after the statutory period for remonstrating against the petition, although additional persons are brought in. Yancey v. Thompson,

130 Ind. 585, 30 N. E. 630.

and that they cannot be considered by standing silent, however they may be affected; that is, by remaining passive they are not to be considered as landowners affected by any assessment or any damages done them, however much they may be affected. This contention we deem too narrow. The statute is a remedial one, and should receive a construction which is fair and reasonable. By standing silent those who are in favor of the improvement as effectually express their wishes in favor of it as those who remonstrate express their wishes against it. If they have not been named in the petition, whether through inadvertence or purposely, they are none the less affected; and, paradoxical as the statement may seem, if they can have no voice by their silence before the report comes in, they can have none later, and would be thereby denied any voice in the matter. Again if under appellants' contention only those affected and not named in the petition can be heard or counted by coming in and remonstrating, they would exclude those who favor the improvement, who are in the same category, and have the same rights and interests as themselves, and who by reasons of favoring it can only effectuate their wishes by silence. The act should not receive so unfair a construction. The general intention of the act to let in the voice of all who are affected and some of the reasons for this construction are pointed out in Thorn v. Silver, 174 Ind. 504, 519, 520, 89 N. E. 943, 92 N. E. 161. This being true, the three Merrills, remaindermen, residing in Howard county, are to be counted, unless appellants' point is well taken that to permit those not named in the petition, or in the remonstrance, to be counted would change the issues in the circuit court.

[4] It is too well established to require citation of authority that the cause is tried issue can be tried there which was not inde novo in the circuit court, and that no volved before the board. But there was but issue can be tried there which was not inone issue before the board, and that was whether the remonstrance was filed by twothirds of the landowners named in the petition or affected, and the issue was the same on appeal, and there the question was who It does not follow, should be reckoned. as counsel urge, that persons not served with [2, 3] This statute (Burns 1908, § 6142), notice are not to be counted because they That is but stating a greatly enlarges the power of remonstrance cannot be affected. to "two-thirds in number of the landowners half truth, for it may just as certainly be named as such in such petition, or who may known, and would certainly be, where the be affected by any assessment or damages ditch runs through one's land, that he would [damaged] [our italics], resident in the coun- be affected, at least as to the jurisdiction ty or counties where the lands affected are to enter upon his land, before the commissituated." But it is appellants' contention sioners are appointed as later, but he may be that those not named in the petition, but who named in the report as affected and notice may be affected, must remonstrate, take af- given him afterwards, but he is affected by firmative action against the proceeding, oth- the proceeding the same as those first namerwise they cannot be counted, that is, that ed, and stands in the same category with

evidence of the residence of Boyd being in fact in Howard county, when notice had been given him as a resident of Cass county, upon the ground of estoppel. He is making no complaint of the service; and, unless the question of his residence affects appellants in some right, they cannot complain of the service as to him, and it was immaterial in this case, for the reason that if he were still treated as a resident of Cass county, the result would be the same.

relation may be known as well within 20 [6, 7] Error is urged in the admission of days after docketing the petition as after the report is in, in addition to the fact that if his interest is not recognized until after the report is in, he is not in as good situation as others, or as he would be before, as to the assertion of his rights, either by affirmative action or by silence. Yancey v. Thompson, supra. If it is a right or a condition he could then assert, it is a right which others affected may rely on. Those who do not remonstrate are as effective by silence as by remonstrance, where they are named in the petition; why not those also who are affected, but silent? It is immaterial what that effect is; if they do not remonstrate, they are as much assenting as a petitioner. Thorn v. Silver, supra.

Error is also urged in the admission of evidence of the title in and residence of the three Merrills, residents of Howard county. In view of our conclusions as to their being affected parties, and entitled to be counted in determining the remonstrance, there was no error in this action.

The court did not err in its conclusions of law, or in overruling the motion for a new trial, and the judgment is affirmed.

(55 Ind. App. 11) JENKINS v. STEELE. (No. 8,041.)1 (Appellate Court of Indiana, Division No. 1. June 20, 1913.)

APPEAL AND ERROR ( 722*)-NAMES (§ 16*) -ASSIGNMENT OF ERROR-SUFFICIENCY. kins and the assignment of error was entitled Where a judgment was against Leroy JenLee Jenkins, the appeal must be dismissed; the names "Lee" and "Leroy" not being idem

sonans.

Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 722;* Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.*]

Appeal from Circuit Court, Sullivan County; G. W. Buff, Sp. Judge.

[5] In this case, conceding that notice to the life tenant in whose name the land was taxed was sufficient to confer jurisdiction to assess the land, that notice was for that reason binding on the remaindermen as privies in estate and in law; and it would be a strange contradiction to say that while they might remonstrate and be counted, they would not be regarded as assenting by silence and not be counted for that purpose. We are quite sure that such construction should not be given. Whether therefore a husband owning real estate in his individual right, and owing other real estate as tenant by the entirety, both he and the other spouse are to be counted as one or two persons affected, or whether in cases of tenancies by the entireties both spouses shall be counted as one or two persons, from the fact of the three Merrills remaindermen being affected and residents of the county, and whether Boyd be regarded a resident or a non- Action by Oliver Steele against Lee Jenresident, the remonstrance was insufficient. kins. From a judgment for plaintiff, deCounting husbands and wives as separate fendant appeals. Dismissed. owners named in the petition, and the three Merrills as affected but not named in the petition, there were 26 owners named, of these 22 were residents of the county, 3 were nonresidents, not counting Boyd either as a resident or nonresident. Only 12 residents thus counted remonstrated. If we count them with the spouses owning by entireties, counting but one landowner each, except in case of a landowner who in addition owns individually, there were 24 owners named in the petition, including the three Merrills. Of these, 20 were residents of the county, 3 were nonresidents, not counting Boyd either way. Thus counting, only 11 persons remonstrated. If we count all instances of husbands and wives as one landowner named in the petition, including the Merrills not named, but affected, we have 20 persons affected, of these 19 were residents, 3 nonresidents, not counting Boyd either way. Thus counting there were 11 remonstrants. It thus appears that in no view of the case was the necessary two-thirds remonstrance filed.

both of Sullivan, for appellant.
Lee Fenton Bays and Fred. Fenton Bays,
Arthur D.
Cutler, of Carlisle, and Charles D. Hunt
and Gilbert W. Gambill, both of Sullivan, for
appellee.

FELT, J. Appellee recovered a judgment against Leroy Jenkins. The assignment of errors is entitled Lee Jenkins v. Oliver Steele.

Appellee has not filed a formal motion to dismiss the appeal, but in his brief points out that the name of the appellant as given in the assignment of errors and in appellant's briefs is different from that of the defendant named in the complaint and against whom the judgment appealed from was rendered. It is also pointed out that appellant has not complied with the rules of this court in setting out the pleadings and evidence or the substance thereof necessary to present the questions suggested by the assignment of errors, and that the errors, if any, are therefore waived.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The first objection affects the jurisdiction of this court. The assignment of errors constitutes the appellant's complaint in this court, and jurisdiction can only be acquired over the parties whose full names appear therein. Simons v. Kosciusko B. & L. Ass'n, 99 N. E. 767, and cases cited.

In Lilly v. Somerville, 142 Ind. 298, 40 N. E. 1088, the judgment appealed from was rendered against William C. Brackett, and the assignment of errors was by Willard C. Brackett. It was held that the assignment of errors was defective, that the appeal in the name of "Willard" presented no question affecting the judgment against "William," and the appeal was dismissed.

Lee Jenkins and Leroy Jenkins are not idem sonans. Berkey v. Tipton Light, Heat & Power Co., 42 Ind. App. 301, 84 N. E. 1095, 85 N. E. 724; C., C., C. & St. L. Ry. Co. v. Peirce, 34 Ind. App. 188, 72 N. E. 604; Lilly v. Somerville, 142 Ind. 298, 40 N. E. 1088; City of Lafayette v. Wortman, 107 Ind. 404, 8 N. E. 277; Vance v. State, 65 Ind. 460.

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The assignment of errors is clearly defective. This court cannot assume jurisdiction to decide questions relating to a judgment against Leroy Jenkins, on an assignment, or complaint, by Lee Jenkins. Such assignment raises no question affecting the judgment against Leroy Jenkins, and the record shows no judgment against Lee Jenkins.

Furthermore, appellant's attention was called to the defective assignment by appellee's brief within the year allowed for appeal from the date of the judgment overruling the motion for a new trial, and he took no steps either to obtain leave to correct the assignment of errors, or to perfect a new appeal within the year.

The appeal is therefore dismissed.

George W. Pigman, of Liberty, and Robbins & Robbins, of Richmond, for appellant. W. F. Bossert, of Liberty, and Shiveley & Shiveley, of Richmond, for appellee.

LAIRY, J. This action originated before a justice of the peace. The plaintiff recovered a judgment, and the defendant appealed to the circuit court, where the case was again tried before a jury upon the issues formed by the pleadings filed in the justice's court, and a verdict was returned in favor of the plaintiff. After verdict the defendant filed a motion in arrest of judgment, upon the ground that the compaint did not state facts sufficient to constitute a cause of action. This motion was overruled, and judgment rendered for plaintiff on the verdict. The defendant prosecuted this appeal, and assigns as error that the complaint does not state facts sufficient to constitute a cause of action, and also that the court erred in overruling his motion in arrest of judgment.

It is a well-settled rule of pleading, in actions commenced before a justice of the peace, that a complaint which contains sufficient substance to inform the adverse party of the nature of the demand against him and to bar another action for the same cause will be held sufficient on demurrer. Brown v. Thompson, 45 Ind. App. 188, 90 N. E. 631, and cases there cited.

In this case the objections to the complaint are interposed for the first time after verdict. The complaint is subject to serious criticism, but we are of the opinion that it was sufficient to inform the defendant that plaintiff was making a demand for damages resulting from a breach of warranty made by the defendant in the sale of a certain horse to plaintiff, and that the facts stated are sufficient to bar another action for the same demand. Judgment affirmed.

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such was the case, the court could not say as a matter of law that he was negligent.

[Ed. Note.-For other cases, see Street Rail

roads, Cent. Dig. §§ 239-257; Dec. Dig. §

117.*]

2. STREET RAILROADS (§ 98*) - INJURIES TO PERSONS ON TRACKS-CONTRIBUTORY NEGLIGENCE.

A pedestrian who before crossing street car tracks looked but failed to see a car which was in sight was chargeable with what he should have seen.

In a pedestrian's action against a street railroad company for injuries where the motorman 'testified that he saw plaintiff leave the sidewalk, crossing the street diagonally in a hard rain, with an umbrella down over his head and his back three-quarters turned to the car, and there was other testimony and physical facts tending to show that if, as testified, he saw plaintiff when he left the sidewalk he could the jury whether the motorman used proper have avoided a collision, it was a question for measures to prevent a collision.

IBACH, J. Appellant, in his brief for rehearing has urged the same matters presented in his original brief. In addition he insists that the court should have granted his application for oral argument. No petition for oral argument was filed with the clerk of this court, or in any way brought to the court's attention, so that the court could ascertain from the files of the clerk, or the clerk's memorandum on the transcript, that there has been a request for oral [Ed. Note.-For other cases, see Street Railargument. On the last page of appellant's roads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*] original brief, just above the signature of 3. STREET RAILROADS (§ 117*)-ACTIONS FOR counsel, counsel asked an oral argument. A INJURIES-QUESTIONS FOR JURY. request for oral argument must be seasonably made, before the time for filing briefs has expired, and before consideration by the court, and the court is not required to search the briefs in order to find out whether counsel desire an oral argument. In this case the request was not discovered until after the case had been partially considered and a decision practically agreed upon. It is undoubtedly the rule that a party in this court is entitled to an oral argument, under rule 26 of this court (55 N. E. vi), in all cases where a proper written application has been filed, but the request for oral argument must be made in such form that it can be ascertained by the court before reading the briefs through for final consideration of the case. It is not improper to incorporate a petition for oral argument with the appellant's or appellee's brief, but if this is done, the cover page of the brief should show that it contains the party's brief, and his petition for an oral argument, in order for the latter to be brought to the attention of the clerk of the court for filing, and to the attention of the court when the cases are distributed for decision. Appellant failed to make a proper application for oral argument; therefore he was not entitled to oral argument. Petition for rehearing denied.

(55 Ind. App. 190)

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. & 117.*]

4. STREET RAILROADS (§ 93*)-INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY

NEGLIGENCE.

Where a street car motorman saw a pedestrian coming across the street in such a manner that a collision seemed imminent, giving no indication of stopping, but rather appearing to be wholly unaware of the approach of the car, and saw that the pedestrian was entering a place of danger, he was bound to take all the measures to prevent a collision which a reasonably prudent man would take.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 5. STREET RAILROADS (§ 118*)-ACTIONS FOR INJURIES INSTRUCTIONS "LAST CLEAR CHANCE."

--

In a pedestrian's action against a street railroad company for injuries, where there was evidence that, notwithstanding plaintiff's negligence, the motorman could have avoided the injury, it was proper to charge that plaintiff might recover, notwithstanding his negligence, if the injury was more immediately caused by the defendant's omission, after becoming aware of plaintiff's danger, to use ordinary care to avoid injuring him; that the right to recover was based upon "the doctrine of last clear

INDIANA UNION TRACTION CO. v. KRAE- chance," which was that the defendant failed

MER. (No. 7,974.)1

to exercise reasonable care after it became the apparent to motorman, or could So (Appellate Court of Indiana. Division No. 2. have become known to him by ordinary care,

June 19, 1913.)

1. STREET RAILROADS (§ 117*)-ACTIONS FOR INJURIES-QUESTIONS FOR JURY.

Where the evidence showed that a pedestrian before starting across a street looked to the northeast and saw no car within 490 feet, that when about 2 or 3 feet from the track he looked to the northeast again and saw no car within 40 or 50 feet, and that when he had taken one or two steps on the track he was struck by a car coming from the northeast, his negligence in failing to look at other times or places was for the jury, in view of his duty to also look for cars in an opposite direction and to look out for vehicles in the vicinity at the time, since, if there was no car within 40 or 50 feet when he looked, the car must have been coming at an unusual rate of speed, and, if

that a collision was probable; that to recover stances, it became apparent to the motorman plaintiff must prove that, under the circumthat a collision was likely and that the motorman could then by ordinary care have checked or stopped the car in time to prevent a collision and failed to do so; that the motorman in such event would be negligent in failing to do what he could have done by reasonable care; that his negligence being later than plaintiff's was the proximate cause of the injury and plaintiff's a remote cause; that for a remote cause the party was not chargeable; that if the motorman saw and knew, or by ordinary care could have seen and known, that plaintiff, as he was about to enter upon the track, was unaware of the approach of the car and was thereby placed in a dangerous position and likely to be injured by contact with the car, and if

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

the motorman saw and knew his peril in time to have avoided striking him, but failed to do so, his negligence would be the last negligence which caused the injury; and that, if the motorman, after he saw plaintiff's peril, could not by reasonable care and effort have avoided striking and injuring him, the doctrine would not apply.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.* For other definitions, see Words and Phrases, vol. 5, p. 4006.]

6. STREET RAILROADS ( 103*)-INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY

NEGLIGENCE.

Where a street car motorman saw a pe

care, that a collision was likely to occur. Now, in such case, in order for the plaintiff to recover, plaintiff must prove, by a fair preponderance of the evidence, to your satisfaction that under the circumstances and conditions, as shown in evidence in this cause, it became apparent to the motorman on the defendant's car that a collision was likely to occur to the plaintiff; and that, after it so became apparent to him, such motorman could, by the use of ordinary care, have checked or stopped his car in time to prevent a collision, with resulting injury to plaintiff, and failed to do so. In such event, such motorman would be chargeable with negligence in failing to do what he could have done by the exercise of reasonable care;

destrian in a place of danger and could have avoided or mitigated the danger by the use of reasonable means at his command, the company was liable for the pedestrian's injuries, even though the pedestrian's negligence continued to the instant of his injury, since his and, his negligence being negligence at a negligence would not be contributory negli- later time than the negligence of the injured gence, the active or proximate cause of the in-person in entering or attempting to enter upjury being the motorman's negligence, and hence it was proper to refuse an instruction that the pedestrian could not recover, even if the motorman was negligent, if his own negligence continued up to the time of his injury. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. & 103.*] 7. EVIDENCE 116*)—MATTERS EXPLANATORY OF FACTS IN EVIDENCE.

In an action against a street railroad company for injuries, where defendant sought to minimize the injuries by showing that, although plaintiff claimed riding on cars caused him great pain, he had made a trip to A. on its road, plaintiff's testimony that he was asked to go to A. to meet defendant's claim agent, who told him that the company might make a settlement, was properly admitted, not for the purpose of binding defendant by the attempted settlement, but to show why and under what circumstances plaintiff went to A.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*] Appeal from Superior Court, Marion County; Joseph Collier, Judge.

Action by Jacob H. Kraemer against the Indiana Union Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Instructions Nos. 25, 26, and 27 were as

follows:

No. 25: "I instruct you that in a case of this kind the plaintiff may recover damages for an injury because of the defendant's negligence, notwithstanding that plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. The right to recover under such circumstances is based upon and invokes the doctrine of what is known in law as 'the doctrine of last clear chance.""

on said track, such later negligence is, in law, held to be the proximate cause of the injury, and that the prior negligence of the injured person is a remote cause only, and for the remote cause a party is not charge

able."

No. 27: "As I have instructed you, if you find from the evidence that the defendant's motorman, in charge of said car, saw and knew, or by the exercise of ordinary care could have seen and known, that plaintiff, as he approached and was about to enter upon said track, was unaware and unconscious of the approach of said car, and was thereby placed in a perilous and dangerous position and likely to be injured by coming in contact with said car, and you further find that defendant's motorman saw and knew plaintiff's peril in time to have avoided striking him, but failed to do so, the motorman's negligence in so failing would be the last negligence which caused the injury. I also instruct you that in such case, if the motorman, after he saw the plaintiff's peril, could not, by the exercise of reasonable care and effort, have avoided striking and injuring the plaintiff, then the doctrine of last clear chance would not apply."

J. A. Van Osdol and Kittinger & Diven, all of Anderson, for appellant. Rucker & Rocap, of Indianapolis, for appellee.

IBACH, J. In this action appellee recovered $1,500 for personal injuries sustained when he was struck by appellant's interurban car while he was walking across Massachusetts avenue in Indianapolis.

The only errors assigned arise under the motion for new trial. They are that the verdict is not sustained by sufficient evidence in that the evidence shows contributory neg

No. 26: ""The doctrine of last clear chance' is that the defendant, in running and operating a street car, failed to exercise rea-ligence on appellee's part; that the court errsonable care, after it became apparent to the motorman of the car, or could so have become known to him, by the use of ordinary

ed in giving instructions 25, 26, and 27 embodying the doctrine of last clear chance, and in failing to give instruction 3 at ap

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