Falender v. Atkins

Cox, J. Appellants sued the city of Indianapolis, Henry C. Atkins, Merritt A. Potter and Thomas R. Kackley for damages to real estate alleged to have resulted from the vacation of a street in a part of the block in which appel [477] lants’ property was situated, and the subsequent closing of it by defendants, other than the city, who owned the fee thereof as abutters, which closing left appellants’ property in a cul de sac. Defendants demurred separately to the amended complaint for want of facts. Appellants dismissed as to the city and Kackley, and appeal from a judgment against them for costs, assigning as error that “the court erred in sustaining the demurrers of the defendants, Henry O. Atkins and Merritt A. Potter to the amended complaint. ’ ’ 1. The record shows that the demurrers of the city and of Kackley were sustained, and that appellants dismissed as to them, but a search of the record fails to disclose any ruling of the lower court on the demurrers of Atkins and Potter, or any exceptions thereto taken by appellants. The absence from the record of any rulings sustaining these demurrers, and a like absence of exceptions taken by appellants to such rulings, make a record which presents no question for the consideration of this court and requires an affirmance of the judgment of the lower court. Rittenhause v. Knoop (1894), 9 Ind. App. 126, 36 N. E. 384; Hollis v. Roberts (1900), 25 Ind. App. 426, 58 N. E. 502; Hamilton v. Goddard (1890), 125 Ind. 600, 25 N. E. 543; Smith v. Borden (1903), 160 Ind. 223, 66 N. E. 681. Judgment affirmed. Note.—Reported in 94 N. E. 323. See, also, 3 Cyc. 176.