McPherson v. Leathers

29 Ind. 65

• Court: Indiana Supreme Court
• Decided: November 15, 1867
• Status: Published

Opinion

Frazer, C. J.

This case originated before the board of commissioners, whore there had' been various proceedings. It was a petition for the establishment of a highway. Leathers, a remonstrant, appealed to the Circuit Court. That court, without trying the cause, mero motu remanded it to the commissioners, with directions to set aside all the proceedings after a certain point and proceed de novo. This was erroneous. In such an appeal, the Circuit Court must try the cause for itself, as an original cause, and it does not take jurisdiction as a court for the correction of errors. It must make a final determination, and it may then either execute its judgment or send the cause down to the commissioners, with directions to- carry the- judgment into effect. 1 C. & H., §§ 86, 87, p. 258.

S. Claypool and F. P. A. Phelps, for appellant. W. W. Leathers, O. Carter, W. P. Harrison and W. S. Shirley, for appellee.

•The judgment is reversed, with costs, and the cause remanded, &c.