
    Vial et al. v. Ladow, Auditor, etc., et al.
    [No. 30,443.
    Filed October 8, 1963.]
    
      
      George C. XJhlir, of Kokomo, for appellants.
    
      Robert S. Whitehead, of Kokomo, for appellees.
   Per Curiam.

The appellants filed an action for an injunction in the court below to enjoin the collection of a ditch assessment resulting from the repairs of an old ditch. The final report of the surveyor included a portion of the ditch that was open, under which the land of the appellants was assessed and also a portion of the ditch that was denominated “tile portion” under which the appellants alone were assessed for tiling in the amount of $3420. In the trial court it was urged that this is an arbitrary and discriminatory assessment, since no other land owners were assessed for the title. The trial court denied the injunction. The appellees have filed a motion to dismiss the appeal on the ground that the brief is not properly prepared under the rules of this court. Among the grounds alleged for dismissal are the following:

1. The brief fails “to set out by line and page of the transcript where any of the alleged erroneous rulings may be found.”

2. The brief fails to make a “concise statement of the record.”

3. The brief under “Argument” fails “to set forth such of the assigned errors as are intended to be urged.”

4. Finally, it is urged that there is no bill of exceptions containing all the evidence, either in the transcript or set forth in the brief. The affidavit of the trial judge as well as the parties admits that there was oral testimony heard which is not included in the bill of exceptions. Upon examination of the brief we find this to be true. There is a stipulation with reference to part of the record therein, but there is no bill of exceptions containing a recital óf the evidence heard as to the benefits and damages relating to the particular land with reference to the assessment for the tile.

Without all the evidence in the record relating to the damages and benefits to this particular land, we have no way of reviewing whether or not the assessment with reference to the tile portion of the ditch objected to was arbitrary and unconstitutional as urged, or was, in fact, solely for the benefit of the land of the appellants.

The appellants have had adequate time to amend the brief, but no attempt has been made to supply the defects. Under the circumstances we cannot properly and adequately consider the issues attempted to be raised on this appeal.

The motion to dismiss is sustained.

Jackson, J., concurs in result; Myers, C. J., dissents without opinion.

Note. — Reported in 193 N. E. 2d 62.  