Johnson v. Cuddington

35 Ind. 43

• Court: Indiana Supreme Court
• Decided: May 15, 1871
• Status: Published

Opinion

Downey, C. J.

Action for trespass quare clausum fregit. Answer, first, general denial; second and third, justification. Demurrers sustained to the second and third paragraphs. Trial by the court. Special finding by request, in which the court found the acts of trespass, and the amount of the plaintiff’s damages, but, going beyond anything in the issue, found that two of the defendants were supervisors of highways, acting under an order to open a highway, and that the other two were acting under their authority. Conclusion of law, that the defendants were not liable for the damages. Exception taken, and also a motion made by the plaintiff for judgment on the findings, overruled, and exception entered.

These rulings were wrong. The court had no authority to find a justification of the acts of trespass under the issue. 2 G. & H. 93, sec. 66; Wood v. Mansell, 3 Blackf. 125.

The judgment is reversed, with costs, and the cause remanded, with directions to the circuit court to render judgment for the plaintiff for twenty-three dollars and seventy-five cents, the amount in the special finding, and costs.