Gullett v. Phillips

54 N.E. 804, 153 Ind. 227, 1899 Ind. LEXIS 36

Opinion

Monks, J.

This was an appeal from a survey of real estate under §8030 Burns 1894, §5595 Horner 1897. The court found that the “line from which the appeal was attempted to be taken was run and established by agreement, between appellant and appellee at : the time it was established, and that the west end of the line was evidenced by a corner agreed upon between them, and that the “appeal should be ignored.” There was evidence which fully sustained this finding of the court, and although there was evidence to the contrary, we cannot, under the well established rule, disturb the finding for that reason. Cabinet Makers’ Union v. City of Indianapolis, 145 Ind. 671, and cases cited; Boyd v. Radabaugh, 150 Ind. 394, 397; Weaver v. Apple, 147 Ind. 304.

It was held by this court in Indianapolis, etc., R. Co. v. Sands, 133 Ind. 433, 439, that when a judgment was rendered by agreement, no appeal therefrom could be taken by either party, because the parties had procured the judgment to be rendered, and would not, therefore, be allowed to question its correctness. See, also, Elliotts App. Proc., §§625, 630; Weander v. Johnson, 42 Neb. 117, 60 N. W. 353. This principle applies with equal force to this case. Here the parties agreed where the surveyor should establish the line, and procured the surveyor to run and establish the same accordingly; having done this, neither party can question its correctness on appeal.

The court below should have rendered judgment dismissing the appeal, but as no motion was made to modify the judgment, the failure to do so cannot be reviewed here. Evans v. State, 150 Ind. 651, 655, and cases cited,

Judgment affirmed.