Ferdinand Railroad v. Bretz

Pelt, J. Appellee brought this action against appellant under §5448 Burns 1908, Acts 1885 p. 224, to recover the reasonable value of a fence constructed by him between his land and appellant’s right of way. The case was tried by the court without the intervention of a jury, and there was a finding for appellee for $109.63, on which judgment was duly rendered.' Appellant filed a motion for a new trial based on the following grounds': (1) Error in the assessment of the amount of recovery in that it was too large. (2) That the finding and judgment of the court are not sustained by sufficient evidence. (3) That the finding and judgment of the court are contrary to law. This motion was overruled and the action of the court in so doing is the only error assigned and relied on for reversal. 1. 2. [125] 3. [124] The first cause for a new trial is not presented or considered in appellant’s points and authorities and is therefore waived. Owen v. Harriott (1911), 47 Ind. App. 359, 94 N. E. 591; City of Logansport v. Newby (1912), 49 Ind. App. 674, 98 N. E. 4; Indianapolis s.Traction, etc., Co. v. Gillaspy (1914), 56 Ind. App. 332, 105 N. E. 242; Louisville, etc., Traction Co. v. Lloyd (1915), 58 Ind. App. 39, 105 N. E. 519. The second and third causes assigned for a new trial are not [125] authorized by the statute and are insufficient to present any question. Bradford v. Wegg (1914), 56 Ind. App. 39, 102 N. E. 845, and cases cited. The burden is on appellant to show that harmful error was committed against it. Chicago, etc., R. Co. v. Dinius (1913), 180 Ind. 596, 623, 626, 103 N. E. 652. No error being presented, the judgment is affirmed. Note. — Reported in 108 N. E. 967. As to admission of irrelevant and immaterial evidence as ground for demanding new trial, see 66 Am. Dec. 717. See, also, under (1) 3 C. J. 1409; 2 Cyc. 1014; 3 Cyc. 388; (2) 3 C. J. 1390; 2 Cyc. 1000; (3) 3 Cyc. 275.