Woodhams v. Jennings

73 N.E. 1088, 164 Ind. 555, 1905 Ind. LEXIS 60

Opinion

Monks, J.

This proceeding was commenced by appellants under §§6792-6812 Burns 1901, Acts 1889, p. 433, for the construction of a free turnpike on a public highway located on the line dividing the counties of Warren and Benton. A remonstrance was filed by appellees. Appellants filed a motion to strike out the third and fourth causes of remonstrance, which was overruled by the boards of commissioners of said counties in joint session, and, after hearing the evidence, appellants’ petition was dismissed by said boards. Appellants appealed to the court below, where they renewed their motion to strike out the third and fourth grounds of said remonstrance, which was overruled. A trial of said cause by the court resulted in a finding, and, over a motion for a new trial, a final judgment in favor of appellees, dismissing said proceeding.

Appellants assign for errors (1) that the court erred in overruling their motion to strike out the third and fourth grounds of appellees’ remonstrance;' (2) the court erred in overruling appellants’ motion for a new trial.

1. It is settled that error can not be predicated upon the action of the court in overruling a motion to strike out a part or all of a pleading. Pfau v. State, ex rel. (1897), 148 Ind. 539, 542, 543; Zimmerman v. Gaumer (1899), 152 Ind. 552, 555; Petree v. Brotherton (1893), 133 Ind. 692, 695; Holland v. Holland (1892), 131 Ind. 196, 200, and cases cited; City of Crawfordsville v. Brundage (1877), 57 Ind. 262, 264, and cases cited; Elliott, App. Proc., §639.

2. Appellants have waived the second error assigned by failing to argue the same.

3. Moreover the questions presented by the motion for a new trial depend for their determination upon the evidence, which is not in the record, nor has there been any attempt to bring the same into the record.

Finding no available error, the judgment is affirmed.