Payne v. Peugh

103 N.E. 117, 54 Ind. App. 551, 1913 Ind. App. LEXIS 135

• Court: Indiana Supreme Court
• Decided: November 19, 1913
• Docket: No. 8,774
• Status: Published

Opinion

Shea, J.

Injunction suit by appellant against appellee Peugh, a township trustee. The complaint is in two paragraphs, in each of which it is alleged that the trustee was threatening to clean out and repair a public drain, which, it is alleged he could not lawfully do. A number of landowners claiming to be interested in the cleaning of the two drains made application to be made parties defendant to the action. The application was granted and they filed a demurrer to the complaint, which the court sustained. Plaintiff declined to plead further, and the court rendered judgment.

1. A motion is filed by appellees to dismiss the appeal for the reason that since the filing of the record in this case appellant has disposed of all of the lands owned by him, affected by the ditch in question, and the purchasers of the land, by affidavit, show their interest therein; that they are in favor of the work being done, and ask that the appeal be dismissed. “It is well settled that when a party to an appeal transfers or otherwise loses his interest in the subject-matter in controversy, the appeal will’ be dismissed as to him, when the fact is brought to the attention of the appellate tribunal.” Chicago, etc., R. Co. v. Grantham (1905), 165 Ind. 279, 282, 75 N. E. 265. See, also, Stauffer v. Salimonie, etc., Co. (1897), 147 Ind. 71, 73, 46 N. E. 342; Elliott, App. Proc. §148.

For the reason that appellant has disposed of his interest in the land affected, the appeal in this case is dismissed.

Note.—Reported in 103 N. E. 117. See, also, 3 Cyc. 188.