Crowell v. City of Peru

41 Ind. 308

• Court: Indiana Supreme Court
• Decided: November 15, 1872
• Status: Published

Opinion

Downey, J.

—Complaint by the appellants, owners of taxable property within the city of Peru, against the city and the city treasurer, to enjoin the collection of certain taxes levied by the city, and which the treasurer was about to collect. An injunction was granted, to continue until a designated day. There was an answer filed by the defendants, to which the plaintiffs filed a demurrer, which the court overruled, rendered judgment thereon for the defendants, and dissolved the injunction. This action of the court is assigned as error.

The demurrer is not set out in the record. When a demurrer has been filed and overruled, and the record does not contain the demurrer, we may well presume that it was overruled on 'account of its own defects, or because it presented some objection to the pleading to which it was not liable. If the demurrer has been sustained, and the pleading is not liable to any objection which could have been specified in the demurrer, the rule would probably be different. The injunction, by its terms, was to extend until the iith day of December, 1871. The order dissolving it was not made until the 18th day of that month. As it had already expired, it was not error to declare it dissolved. Besides this, the bill of exceptions does not show on what ground it was dissolved. It is for the appellants to show the existence of the errors upon which they rely. This they have not done. The presumption is that there was no error.

The judgment is affirmed, with costs.

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Petition for a rehearing overruled.