Peru R. R. v. Dayton

Indiana Supreme Court

Peru R. R. v. Dayton

18 Ind. 326

CourtIndiana Supreme Court

DecidedMay 15, 1862

StatusPublished

Cited by1 cases

This text of 18 Ind. 326 (Peru R. R. v. Dayton) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peru R. R. v. Dayton, 18 Ind. 326 (Ind. 1862).

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Opinion

Per Curiam.

Suit by Dayton against the company for killing stock upon the road where it was not fenced. Trial by the Court; finding and judgment for the plaintiff.

Two points are made for reversal: 1st. That there was a trial without an issue; and 2d. That the record shows that the road was fenced and that no negligence was shown.

The first record sent up shows that the cause was tried without any pleading appearing to have been filed on behalf of the defendant, but an amended record shows that the cause was tried on the general denial. An objection is made by the appellant to the manner in which the amendment of [327]*327tlie record was made in the Court below. We shall pass over this last objection, because without any amendment, the objection is not available that the cause was tried without an issue. hTo objection on this ground was in any manner made in the Court below, and it can not be for the first time successfully made in this Court. Martindale v. Price, 14 Ind. R. 115; Henly v. Kern, 15 id. 391.

G. II. Ross, for the appellant. M. Garver and James O’Brien, for the appellee.

With reference to the other point, it may be observed that the complaint alleges, and the proof, as contained in the second record sent up, (no amendment being made in this respect,) shows that the road was not fenced at the point where the stock was killed.

The judgment is affirmed, with costs and five per cent, damages.

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Per Curiam.

Suit by Dayton against the company for killing stock upon the road where it was not fenced. Trial by the Court; finding and judgment for the plaintiff.

Two points are made for reversal: 1st. That there was a trial without an issue; and 2d. That the record shows that the road was fenced and that no negligence was shown.

The first record sent up shows that the cause was tried without any pleading appearing to have been filed on behalf of the defendant, but an amended record shows that the cause was tried on the general denial. An objection is made by the appellant to the manner in which the amendment of [327]*327tlie record was made in the Court below. We shall pass over this last objection, because without any amendment, the objection is not available that the cause was tried without an issue. hTo objection on this ground was in any manner made in the Court below, and it can not be for the first time successfully made in this Court. Martindale v. Price, 14 Ind. R. 115; Henly v. Kern, 15 id. 391.

G. II. Ross, for the appellant. M. Garver and James O’Brien, for the appellee.

With reference to the other point, it may be observed that the complaint alleges, and the proof, as contained in the second record sent up, (no amendment being made in this respect,) shows that the road was not fenced at the point where the stock was killed.

The judgment is affirmed, with costs and five per cent, damages.

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18 Ind. 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peru-r-r-v-dayton-ind-1862.

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