SUPREME COURT COMMISSIONERS OF THE STATE OF INDIANA. HON. GEORGE A. BICKNELL.*+ HON. JOHN MORRIS.+ HON. WILLIAM M. FRANKLIN.+ HON. HORATIO C. NEWCOMB.† HON. JAMES I. BEST.† Chief Commissioner. † Appointed April 27th, 1881. OFFICERS OF THE SUPREME COURT CLERK, SHERIFF, JAMES ELDER. LIBRARIAN, FREDERICK HEINER. (xviii) CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, NOVEMBER TERM, 1881, IN THE SIXTY- No. 8416. CITY OF AURORA ET AL. v. FOX ET AL. PLEADING.-Demurrer.-A demurrer to an entire complaint, containing one good paragraph, should be overruled. SAME.-Harmless Error.-Practice.-There is no available error in sustaining a demurrer to a good paragraph of an answer, if there remain another paragraph stating substantially the same matter. CITY.-Damages.—Evidence.-Jury.—In a suit against a city to recover SAME-City Council.—Declarations.-Parol evidence of the proceedings of a City of Aurora et al. v. Fox et al. SAME.-Grading Streets.-Earth can not be removed from a street except for its improvement, nor can such earth be used by a city except to grade that or other streets, the grading of which is part of the same general plan of improvement. SAME.-Adoption of Plan.-Where the common council directs that a plan of improvement for S. street be prepared, which is accordingly done and reported, and the action of the council thereon appears on its record in these words: "The survey and plan for the improvement of S. street by J. is accepted," an adoption of the plan is sufficiently shown. SAME.-Case Criticised.-While the question actually before the court in City of Delphi v. Evans, 36 Ind. 90, was correctly decided, there are many expressions in the opinion in that case which can not be maintained. From the Dearborn Circuit Court. C. S. Jelley, W. S. Holman and W. S. Holman, Jr., for appellants. D. H. Stapp, H. D. McMullen and D. T. Downey, for appellees. ELLIOTT, C. J.—Appellees' complaint is in two paragraphs. One at least is good, and, as the demurrer was addressed to the entire complaint, it was properly overruled, even though one of the paragraphs is bad. The complaint alleges, in substance, that the City of Aurora, without having adopted any general plan for the improvement of the streets, and without having advertised for proposals, and also without having entered into a written contract, proceeded to dig into and cut down a street upon which appellees' house and lot were situated, and without right hauled away and appropriated the soil of said street. It is further alleged that by reason of the cutting down of said. street the appellees' property was greatly injured. The complaint states a case within the rule declared in City of Delphi v. Evans, 36 Ind. 90; for it shows a wrongful carrying away of the soil of the street. A demurrer was sustained to the second paragraph of the appellants' answer, but no available error was committed, even if it be conceded that the pleading was sufficient, for the City of Aurora et al. v. Fox et al. reason that the same defence was substantially stated in another paragraph, which was held good. The error alleged upon the ruling denying a new trial presents all the other questions in the case. Testimony was admitted over the objection of the appellant as to the cost of erecting a wall along the line of appellees' lot. This ruling was not erroneous. If the appellants' wrongful act made it necessary for the protection of appellees' property to erect the wall, its cost was a proper element for the jury to consider in estimating damages. It is, however, contended by the appellants' counsel that no wall was necessary. Whether there was or was not a necessity for the wall was a question of fact for the jury. Michael Teany, one of the appellees' witnesses, was permitted to testify as to the proceedings of the common council of the city of Aurora, and as to the declarations of individual members of that body. An objection was interposed and overruled. The ground of objection was that the proceedings of the common council could not be proved by parol. No effort was made to secure the production of any of the corporate records, nor was it shown that no record had been made. The custodian of the records was not called; neither was there any notice to produce the corporate records. It is clear to our minds that the court erred in admitting this testimony. The record of the proceedings of the common council was the primary evidence. Until some valid excuse was shown for not producing the primary evidence, secondary was not admissible. There are cases where corporate proceedings may be shown by oral testimony, but this is not one of them. The third instruction given by the court contains the following statement: "To the city, however, belongs the right, under the corporate powers conferred upon it by the charter, to grade and improve Square street, and use the same for the purpose of a highway. But before the city can make such improvements certain provisions of the city charter must be complied with. First, an order, resolution or ordinance must |