City of Huntington v. Hawley

Olds, J. This is an action by the appellant against the appellees to enjoin the appellees from interfering with or desecrating certain real estate described in the complaint, alleged to have been dedicated to and accepted by the city as a cemetery, and within the city limits of the city of Huntingtpn. The first error assigned is sustaining a demurrer to the first paragraph of the complaint. The second paragraph of the complaint is substantially the same as the first. The same evidence could be introduced and the same relief granted under the second as under the first, and the demurrer was overruled to the second, issues joined and trial had upon it, and there is no available error in sustaining the demurrer to the first paragraph. The only other error assigned is the overruling of the appellant’s motion for a new trial. The first question presented on the overruling of the motion for a new trial is as to the sufficiency of the evidence to support the finding and judgment of the court. There is evidence tending to support the finding of the court, and this court will not reverse a judgment on the weight of the evidence. The next question presented is the ruling of the court in refusing to admit in evidence the record of a plat purporting to be a plat of the town of Huntington. The plat does not bear any date; it is not acknowledged, nor does the date of its recording appear, and another plat conceded to be identical with the one excluded is admitted in evidence. There was no error in excluding it. It is next contended that the court erred in admitting in evidence a deed from Sarah M. Tipton et al., being all the heirs of John Tipton, senior, and John Tipton, junior, former owners of the land, to the appellees for the land in [504] controversy. There was no error in the admission of this deed in evidence. Filed Oct. 31, 1889. There is no error in the record for which the judgment should be reversed. The judgment is affirmed, with costs.