Opinion
No. 19,853.
Filed April 6, 1964. Rehearing denied May 4, 1964.
APPEAL — Damages — Motion for New Trial. — Error relating to damages should be assigned in motion for new trial pursuant to Clause 4 or 5 of Section 2-2401, Burns' 1946 Replacement, and failure to so assign presents no question on appeal.
From the Adams Circuit Court, Myles F. Parrish, Judge.
Appellants, Thompson R. Noll and others, remonstrated in a drainage ditch proceeding. Trial court found against them and in favor of appellees, Albert F. Braun and others, and appellants appeal.
Affirmed. By the First Division.
Barrett, Barrett McNagny, J. Michael O'Hara, both of Fort Wayne, and Hubert R. McClenahan, of Decatur, for appellants.
C.R. McNabb, Thomas D. Logan, Thomas A. Gallmeyer, all of Fort Wayne and John L. DeVoss, of Decatur, for appellees.
This action comes to us from the Adams Circuit Court and involves a decision of the trial court on issues joined upon the final decision of the surveyor and remonstrances thereto filed by the appellants with reference to the establishment of a drainage ditch in Adams County, Indiana. The court below found against the remonstrators and this appeal was processed.
Separate motions for new trial were filed but the grounds of the motions were identical:
"1. The finding or decision of the court is not sustained by sufficient evidence or is contrary to law."
The errors assigned were:
"1. The court erred in overruling appellants' motion for a new trial.
2. The court erred in overruling the motion for a new trial of Thompson R. Noll and Allie Noll.
3. The court erred in overruling the motion for a new trial of Eloise A. Noll.
4. The court erred in its order approving and confirming the assessments and declaring the proposed work of drainage established."
In the argument portion of the appellants' brief we find the following statement:
"The only error we urge is that the decision is erroneous in fixing excessive benefits and awarding inadequate damages to appellants."
The appellants' in their motion for new trial under the provisions of § 2-2401, Burns' 1946 Replacement, failing to make a proper assignment, no error is presented for our consideration. The cases have consistently held that error relating to damages must be assigned under Clause 4 or 5 of the above section. This opinion will not be burdened with an unnecessary list of authorities, but attention is directed to the annotations under the statute.
For the reason above set out judgment is affirmed.
Cooper, Ryan and Faulconer, JJ., concur.
NOTE. — Reported in 197 N.E.2d 310.