Baker v. Arctic Ditchers

Worden, J. Susan Baker, the wife of the other appellant, was the owner of two forty-acre tracts of land lying in Tipton county, Indiana, upon which the appellee, a corporation organized under the act of May 22d, 1869, “ to authorize and encourage the construction of levees, [311] dikes and drains,” etc., (3 Ind. Stat. 222,) procured an assessment of benefits to arise from the construction of the proposed drain. The appellants herein appealed from the assessment to the Tipton circuit court, and a change of venue was taken to the Howard circuit court, where the cause was tried by a jury, who found for the appellee herein, but reduced the original assessment about one-fourth, and judgment was rendered accordingly. The appellants have assigned numerous errors which need not be stated in detail, as many of them involve questions not presented by the record. Some of the errors assigned are based upon the rulings of the court upon the pleadings in the cause. The sixth section of the statute above cited, provides, amongst other things, that “ any party aggrieved by any such assessment may within thirty days thereafter appeal therefrom to the -circuit or common pleas court of said county.” There is no provision made in this statute as to the mode of proceeding in such cases after the appeal has been taken. Ve are of opinion that it was not contemplated that, on the appeal, pleadings should be filed and issues made up as in ordinary actions. See, on this point, Kellogg v. Price, 42 Ind. 360; Chase v. The Arctic Ditchers, 43 Ind. 74; The Foster’s Branch Ditching Company v. Makepeace, 45 Ind. 226. The appellants herein, when they took their appeal to the circuit court, filed in that court, very properly, a duly certified copy of the assessment from which they appealed. This showed what was in controversy between the parties, and further pleadings were unnecessary, either on the part of the plaintiff or the defendants. As the case might and should have been tried on the assessment alone, without further pleadings, and as all the defences to the assessment that could have been made at all could have.been made without pleadings, we decline to enter upon the consideration of the questions arising upon the pleadings filed by the appellants in the cause. The case is like the familiar one in Indiana, that where the matter [312] pleaded could have been given in evidence under another answer, or without an answer, error in holding good answers to be bad' is no ground for the reversal of a judgment. During the progress of the cause the appellants filed a cross-complaint seeking to enjoin the appellee from collecting the assessments, and this complaint was struck out on motion of the appellee. This is assigned for error. The cross-complaint is not contained in any bill of exceptions properly filed and, being struck out, it constitutes no part of the record unless restored and made such by a bill of exceptions setting it out. Chrisman v. Melne, 6 Ind. 487; Hill v. Jamieson, 16 Ind. 125. "What we have said disposes of all the errors assigned excepting those relating to the admission of evidence, instructions of the court, etc., involved in the motion for a new trial. These questions are not in the record unless shown by a bill of exceptions. The record shows a bill of exceptions to have been filed on the 13th day of February, 1873. The record further shows that the cause was finally closed and judgment rendered on the 14th day of December, 1872, and that sixty days were given from that time to file a bill of exceptions. It will be seen that excluding the day on which the proceedings were closed, the bill was filed on the sixty-first day thereafter, one day too late. Ve can not notice the bill of exceptions. There is no available error in the record and the judgment below must be affirmed. The judgment below is affirmed, with costs.