Hamilton v. City of New Albany

Ray, C. J. The appellant brought his action against the city of New Albany, charging in the first paragraph of his complaint, that said city had within her corporate limits a cemetery within which she required the bodies of all persons dying in said city to be buried; that she had sole control of said cemetery; that she conveyed a lot therein to the appellant subject to her supervisory care, within which lot he interred the body of his deceased child; that subsequently and without his knowledge or consent, the sexton of said cemetery, appointed by said city, and under her control, removed said body to a lot used as a common burial ground, to the damage, &c. The second paragraph of the complaint contains the further averment, that subsequent to the purchase by appellant of said lot, and after the burial therein of his said deceased child, the city wrongfully sold and conveyed the same lot to one Eeatheringill, and thereupon l’emoved the said body. A general denial was filed, and also a second paragraph of answer to the first paragraph of the complaint, in which it was alleged that at the time of the trespass charged, and for a long time prior thereto, one Featheringill was, and [484] had been, the owner of said lot, and was in possession thereof, and said removal was made under her authority, in good faith, and with care and decency. A general denial was filed to the second paragraph of the complaint, and a second paragraph of answer, to the same effect as tiie one above set out. A demurrer was filed and overruled to each of the special answers. As the answer’s expressly alleged the ownership of the lot at the date of the trespass to be in Mrs. Peatheringill, and that the act complained of was done under her authority, we regard them as good on demurrer. The city was not bound to trace Mrs. Peatheringill’s title to the lot, dr show from whom or how she acquired it, whether directly by deed from the appellant, or not. Under the averment of title in Mrs. Peatheringill, the appellee could introduce such proof as would sustain that issue. The Common Pleas Judge, considering the title to the lot in question as involved by this paragraph of the answer, ordered the transfer of the case to the Circuit Court, to which the plaintiff excepted.. As the act of 1859, page 93, declares the ruling of the Common Pleas Court on the transfer of a case final, we do not discuss this error assigned. The defendant, at a subsequent term of the Circuit Court, by leave, filed an additional paragraph, alleging a compromise with the plaintiff of the cause of action before suit brought. A demurrer was overruled to this paragraph. As the plaintiff recovered in the action, and this paragraph oould in no way reduce his damages, we do not see that any harm could have resulted from this ruling of the court. If there was error it could not reverse the case. The same remark will apply to the admission on the trial of proof of a contract with the wife of the plaintiff to compromise the cause of action. The finding of the jury was against any such contract, and the admission of the evidence could have resulted in no injury to the plain tiff. There are objections made to several of the charges given by the court to the jury, but as the charges as given by the [485] court are not stated in the abstract, as required by our rule, we do not examine them. The finding was for plaintiff, with one cent damages. There was proof that two years before the cause of action occurred, the plaintiff having years before removed from the city of New Albany, the city did, in faet, under a mistake, sell and convey to Featheriugill the lot theretofore sold to the plaintiff; and that when about to inter a corpse in said lot at the request of said purchaser, the sexton diseoveréd the box containing the remains of plaintiff’s child, and carefully removed the box and placed it in a place set apart for single graves. It was also in proof that the plaintiff had no knowledge of this until ho sent his wife to New Albany to remove the body of his child to Madison, the place of his present residence. There were no special damages shown or expenses incurred, and we do not feel at liberty to disturb the finding of the jury which gave the appellant nominal damages. J. II. Stotsenburg and T. M. Brown, for appellant. Q-. Vi Howie and IL M. Weir, for appellee. The judgment is affirmed, with costs.