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McCowan and Others v. Whitesides.

McSHEELY v. BENTLEY.

New TRIAL.-A8 of Right.—There is no error in overruling a motion for a

new trial as of right in an action of ejectment, where no proof is presented to the court that the costs have been paid.

APPEAL from the Lake Circuit Court.

Ray, J.—This was an action of ejectment by the appellee against the appellant. Trial, and finding and judgment for the plaintiff below. A motion for a new trial was presented as follows:

“Comes now the defendant, and shows to the court that he has paid all the costs herein, and now moves that the court vacate the judgment herein and grant a new trial of this cause, as a matter of right."

There were also reasons assigned for a new trial, but they are not presented in this court.

The motion was overruled. We cannot say that there was error. The recital in the motion, that the costs were paid, is no evidence of the fact. Proof of their payment presented to the court below, we must presume, would have secured all the relief to which the defendant was entitled.

Judgment affirmed, with costs.
D. P. Baldwin and G. T. Wickersham, for appellant.

S. E. Perkins, L. Jordan, and S. E. Perkins, Jr., for appellee.

31b 235 131 283 131 378

31b 235 141 613

MOCOWAN and Others v. WHITESIDES.

31b 235 145

INJUNCTION.–Nuisance.- Obstructing Highway. A private person cannot en

join the obstructing of a public highway without showing a special and pe

31(b)235 154 555 154 556 154 560 156 240 31 235

Case 2 1160 322 31

Case 2 162 173

McCowan and Others v. Whitesides,

culiar injury to himself, not common to the public. The fact that the injury to such person is greater in degree than that to others does not entitle him to such relief. The injury may be to more than one person, but must

not embrace the entire public. SAME.—In a complaint to enjoin the obstructing of a public highway, the

only averments connecting the plaintiffs with the highway were, “that it is their usual, convenient, and necessary route of travel from their houses, which are all on, or in the vicinity of, the road, to their market town and usual place of business; and that without greater or less circuity, when the road is so obstructed, they and cach of them have no other means, nor have the public wishing to use the road, of going to and fro, as they have a right

to do, for business, comfort, and pleasure." Held, that the complaint was bad on demurrer.

APPEAL from the Wabash Circuit Court.

GREGORY, J.-The court below sustained a demurrer to the complaint, and rendered final judgment against the appellants.

The complaint was for an injunction against Whitesides, to enjoin him from obstructing a highway.

The obstruction complained of was the building of a fence across the road. The complaint shows no impending damage special to the appellants.

The only averments in any way connecting the plaintiffs with the highway are," that it is their usual, convenient, and necessary route of travel from their houses, which are all on, or in the vicinity of, the road, to Wabash, their market town and usual place of business; and that without greater or less circuity, when the road is so obstructed, they and each of them have no other means, nor have the public wishing to use the road, of going to and fro, as they have a right to do, for business, comfort, and pleasure.”

The question in the case is, can a private person enjoin the obstructing of a public highway without showing a special injury to himself, not common to the public?

It is claimed, that the appellants have a property interest in the road, which a court of equity is bound to protect against the wrong-doer.

The appellants have no legal right that can be enforced at law. Willard v. City of Cambridge, 3 Allen, 574. Nor can

McCowan and Others v. Whitesides,

a bill in equity for the abatement of the nuisance be maintained. Hartshorn v. Inhabitants of South Reading, 3 Allen, 501; Brainard v. Connecticut River R. R., 7 Cush. 506; Harvard College v. Stearns, 15 Gray, 1.

The rule is well stated in the latter case, thus: “that for an injury common to all, arising from a public nuisance, the remedy is by an indictment or public prosecution. But if an individual suffers a peculiar and special damage not common to the public, he may have his private action.”

The difficulty in this class of cases arises from the fact that the line of discrimination between the cases where a private action for such obstruction does or does not lie is not very clearly or satisfactorily established.

In the case at bar, if the bill had been filed by some one whose lands bordered on the road, and facts had been averred showing an injury to the lands of the plaintiff, by reason of the nuisance, then undoubtedly a remedy would have been afforded. It is averred, that the houses of the plaintiffs are all on, or in the vicinity of, the road. Under this allegation they may all be in the vicinity, and not on the road.

The fact that the injury to the appellants is greater in degree than that to others, does not entitle them to the relief sought; the injury must be special and peculiar. It may be to more than one, but must not embrace the entire public.

The court committed no error in sustaining a demurrer to the complaint.

Judgment affirmed, with costs.
J. U. Pettit and W. G. Sayre, for appellants.
W. March, for appellee.

Caldwell 0. Kenworthy and Another.

CALDWELL V. KENWORTHY and Another.

PLEADING.Justification.- Officer.-An answer justifying an arrest made by

the defendant as sherifi, by virtue of a capias ad respondendum issued from the office of the clerk of the court of common pleas, need not state that an affidavit was filed before the writ issued; but if the return day be past, the answer must show a return.

APPEAL from the Boone Circuit Court.

Ray, J.-Suit by the appellant against the appellees for assault and battery and false imprisonment.

The only question presented in this court is upon the action of the circuit court in overruling a demurrer to the special answer of Kenworthy, who justified as to the arrest of appellant, as sheriff, by virtue of a capias ad respondendum issued from the office of the clerk of the Court of Common Pleas of Boone county, and alleging, that in making said arrest under said writ he did nothing more than is usual and lawful to do in the service of such process, and denying the assault, &c. A copy of the writ is set forth, but contains no copy of a return, although the return day was past. It is urged, that the answer is defective in not stating that an affidavit had been filed before the writ issued; but it was held, in Davis v. Bush, 4 Blackf. 330, that where the writ recites a cause of action within the jurisdiction of the court, the officer is not bound to look beyond it and inquire whether it was preceded by an affidavit or not. Its precept is obligatory upon him and must constitute his defense, provided his duty has been discharged. It was held, however, that the officer must allege his return in the plea, the return day being past. Without it, his justification is not complete, and he is a trespasser ab initio.

The answer was defective in not making this averment, and the writ as set out showing no return, the demurrer should have been sustained.

Judgment reversed, and cause remanded, with direction

Epply o. Mowrer.

to sustain the demurrer to the second paragraph of the answer of Kenworthy. Costs here.

M. M. Ray, J. W. Gordon, and W. March, for appellant. C. S. Wesner, for appellees.

EPPLY V. MOWRER.

APPEAL from the Decatur Common Pleas.

RAY, J.-The appellant brought suit upon a judgment rendered in the Decatur Circuit Court on the 24th day of April, 1855. An answer was filed which alleged, that the plaintiff in the judgment had, under proceedings supplementary to execution, obtained an order that the defendant therein should deliver to him a certain note for one hundred dollars, “which said note the said plaintiff is to receipt for, collect, and credit on his judgment.” No averment is made that the note had been collected, but a credit is demanded for one hundred dollars.

A demurrer to this answer was sustained to the complaint.

The judgment is reversed, and the demurrer directed to be sustained to the answer. Costs for appellant.

C. Ewing and J. K. Ewing, for appellant.
J. S. Scobey and E. R. Monfort, for appellee.

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