Barner v. Bayless

Coffey, C. J. This was a petition filed by the appellants with the Board of Commissioners of Clinton county, on the 15th day of June, 1886, praying said board to enter an order canceling a donation voted by Center township of that county, in aid of the construction of the Frankfort and State Line Railroad. The petition alleges, that at the March term of the board, in the year 1878, a petition was filed asking that Center township make an appropriation of twenty thous- and dollars to aid the Frankfort and State Line Railroad Company in constructing its line of road in said township by taking stock in or making a donation to the company; that the necessary steps were taken, and the appropriation voted and made; that at the June term of that year, pursuant to the terms of such donation, the board levied a tax to meet the same; that the auditor of the county placed said tax on the duplicate and delivered the same to the county treasurer prior to December 16, 1878; that the railroad company had not expended, in the actual construction of its road in the township, a sum equal to twenty thousand dollars since said tax was so placed on the duplicate for collection. The appellee Samuel 0. Bayless appeared to the pe — 602 — tition, as a tax-payer of the township, and filed an answer and cross-complaint. The Frankfort and State Line Railroad Company also appeared and answered. A trial of the cause before the board of commissioners resulted in an order canceling the tax mentioned in the petition, from which order Bayless and the railroad company appealed to the Clinton Circuit Court. The venue of the cause was changed to the Carroll Circuit Court, where a trial resulted in a finding in favor of the appellants, but a new trial was granted. The venue of the cause was then changed to the White Circuit Court, where a trial resulted in a finding and judgment in favor of the appellees. After the cause was appealed to the circuit court, the appellee, the Western Construction Company, was permitted to appear and file an intervening petition, in which it set up that it had become the owner of the tax in controversy by assignment from the railroad company, and praying that its interests might be protected by the order made by the court on the final hearing of the cause. From the finding and judgment entered by the White Circuit Court, this appeal is prosecuted. Many of the cpiestions discussed by counsel, in their briefs, when applied to this case, are of no importance whatever. The Board of Commissioners of Clinton county was not a party to the cross-complaint of Bayless, nor was the county auditor or county treasurer such party. They were not parties to this suit in any sense. It is plain, therefore, that any order the court may have made in this case, in relation to the collection of the tax in controversy, was amere nullity, for the reason that no party was before the court upon whom such an order could operate. Such order could not affect the appellants, because they had no power to execute it; nor — 603 — were any orders made by the court affecting them, beyond fixing their liability for the tax which they were seeking to avoid. Nor does the order of the court directing that the tax, when collected, be paid over to the appellee, the Western Construction Co., in any manner affect the appellants. If they are compelled to pay the tax in controversy, it is immaterial to them whether it is paid over to the railroad company or to the construction company which performed the labor of constructing the railroad. Stripped of these immaterial matters, we reach the controlling question in the case, and that is the question as to whether the railroad company had expended, in Cem ter township, in the actual construction of its road, a sum equal to the donation voted by the township. This was the question for trial before the circuit court. As a question of fact, it was hotly contested, and the evidence relating to it was conflicting. The court hearing the evidence reached the conclusion that the company had expended, in the actual construction of its road in Center township, a sum largely in excess of the amount of the donation in controversy. With this conclusion, we have neither the power nor the inclination to interfere. It is claimed, however, by the appellants, that during the progress of the cause the court below committed many errors which prevented them from having a fair trial. It is claimed, first, that the court erred in permitting the Western Construction Co. to intervene and become a party to the suit. It would seem to be a sufficient answer to this claim to say that the Western Construction Co. was permitted to become an intervenor in this case without objection or exception. Had such objection been made, as it was the — 604 — owner of the subject-matter of the suit, we see no impropriety in permitting it to appear and take such steps as would protect its interests. Such seems to be the recognized practice. R. S. 1881, section 272; Clough v. Thomas, 53 Ind. 24; Bitting v. Ten Eyck, 85 Ind. 357; Kastner v. Pibilinski, 96 Ind. 229; Works’ Prac., volume 1, section 163; Mahr v. Norwich, etc., Fire Ins. Society, 127 N. Y. 452. Second. It is claimed that the court erred in granting the appellees a new trial in the Carroll Circuit Court. The ground upon which the new trial was granted does not distinctly appear. To authorize us to reverse a judgment on account of the abuse of the discretion of the lower court in granting a new trial, it should be made to appear— First. That there was a plain abuse of judicial discretion. Second. That flagrant injustice had been done the complaining party. Third. A very strong case for relief should be made. Nagle v. Hornberger, 6 Ind. 69; Powell v. Grimes, 8 Ind. 252; Cronk v. Cole, 10 Ind. 485; Hill v. Goode, 18 Ind. 207; House v. Wright, 22 Ind. 383; Collingwood v. Indianapolis, etc., R. W. Co., 54 Ind. 15; Leary v. Ebert, 72 Ind. 418; Daggett v. Flanagan, 78 Ind. 253; Waddle v. Megee, 81 Ind. 247; Fitzpatrick v. Papa, 89 Ind. 17; Western Union Tel. Co. v. Kilpatrick, 97 Ind. 42. None of these three things appear in this case. Indeed, the result of the last trial would seem to lead to the conclusion, if we indulge the presumption that everything was rightly done in court until the contrary appears, that the court acted wisely in granting the new trial in this case. Third. It is contended that the court erred in over — 605 — ruling the motion of the appellants to strike out parts of its special finding. There was no error in this ruling. The court had no power to change its special finding after it had been announced and filed. Tarkington v. Purvis, 128 Ind. 182; Sharp v. Malia, 124 Ind. 407; Clark v. State, ex rel., 125 Ind. 1. Fourth. It is also contended that the court erred in setting aside a continuance granted the appellants by the court on account of sickness in the family of Judge Claybaugh, one of the counsel for the appellants. The court seems to have granted to the appellants ample time to prepare for the trial of the cause, after the continuance was set aside. Indeed, no complaint is made on that ground. It further appears that Judge Glaybaugh appeared and assisted in the trial of the cause, so that the appellants had the full benefit of his services. There is nothing in the record showing that the appellants were in any way injured by this action of the court. Fifth. It is finally contended, by the appellants, that the court erred in its conclusions of law upon the special facts found. There were no exceptions taken to the conclusions of law at the time they were filed. After the special finding of facts and conclusions of law thereon were filed by the court, the appellants filed a motion to make the finding of facts more specific. They also filed a motion to strike out parts of the special finding of facts, each of which motions were overruled by the court. They then filed a motion for a venire de novo, which the court also overruled. After these several motions had been ruled upon by the court, they entered an exception to the conclusions of law. This was too late. Dickson v. Rose, 87 Ind. 103; Smith v. McKean, Admr., 99 Ind. 101; Helms — 606 — v. Wagner, 102 Ind. 385; Hull v. Louth, Guar., 109 Ind. 315. Filed March 29, 1893. If the appellants desired to except to the conclusions of law, they should have done so at the time the same were filed by the court. ^ There is no error in the record for which the judgment of the circuit court should be reversed. Judgment affirmed.