
    The Columbus and Shelby Railroad Company v. Richardson.
    The owner of land filed in the office of the clerk of the Court of Common Pleas, in vacation, his application, addressed to the judge of said Court, for the appointment of appraisers to assess the damages which he had sustained by the construction of a railroad through his land. The railroad company were not notified of the pendency of the proceedings, until the damages had been assessed. The Court, at the next term, ordered that the petitioner should have execution against the company for the damages assessed, &c., and also for costs.
    
      Held, that the proceedings were properly instituted, under the R. S. 1852.
    But, held, that the order for execution, &c., both as to damages and costs, was erroneous.
    APPEAL from the Bartholomew Circuit Court.
    
      Saturday, June 7.
    
   Perkins, J.

On the 9th of December, 1853, Elisha Richardson filed in the office of the clerk of the Court of Common Pleas of Bartholomew county, his application, made to the judge of said Court, for the appointment of three appraisers to assess the damages he had sustained by the construction of the Columbus, Sfc., Railroad through certain described land of his, together with the appointment of appraisers as asked.

The appraisers were notified and sworn; and they made and acknowledged before the clerk of said Court an award of the damages. The railroad company was afterwards duly notified of the pendency of said proceedings, and called and defaulted at the next term of said Court; and, the proceedings being shown to the Court, it was ordered “that the said Elisha Richardson have execution against the property of said company for said sum of 375 dollars, with interest thereon from the 24th of December, 1853, and the costs,” &c. According to the cases of McMahon v. The Cincinnati, &c. Railroad Company, 5 Ind. R. 413, and the New-Albany and Salem Railroad Company v. Connelly, ante, p. 32, the proceeding in this case was properly instituted. 2 R. S., p. 193, s. 710. But it does not appear that the railroad company had any notice of the appointment or action of the appraisers till after their assessment of damages was made. It should have had before. 2 R. S., pp. 189,193, ss. 687, 709, 710.

W. M. Dunn and A. W. Hendricks, for the appellants.

W Herod and S. Stansifer, for the appellee.

The proceedings shown to the Common Pleas, therefore, in this case, did not authorize an order for the collection of the costs even, much less the amount of damages assessed.

"Whether, if the assessment had been made on notice to the company, pursuant to the statute, an order embracing the damages, as well as costs, could have been made, we do not decide.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  