Suit by the appellant against the appellee, for the recovery of real property.
Trial by jury; verdict for tbe defendant; motion for new trial overruled, and final judgment.
It is admitted that the legal title to the land is in the plaintiff, and his right to recover is conceded, unless- a certain proceeding had, to condemn the right of way for the appellee’s road, divested that right. That proceeding was instituted before a justice of the peace, under the provisions of the act of May 12th, 1852, 1 G. & H. 475, sec. 7.
The damages were assessed to the appellant, from which he appealed to the circuit court. After the appeal was taken, the turnpike company tendered the amount assessed, and took possession of the land in controversy. The circuit court dismissed the case (not the appeal) and rendered judgment for costs. From this judgment no appeal has been taken.
It is claimed, that the assessment and tender of the damages vested in the appellee the right of way, and that it was not divested by the judgment of the circuit court dismissing the case.
"We think this position not tenable. The judgment of the circuit court, whilst it remains in full force, unappealed from, is conclusive upon the parties to it, that the proceeding before the justice of the peace was without foundation. The effect of that judgment was to place the parties in the condition they were in before the proceeding was instituted.
It is said in Jeffries v. Maccown, 30 Ind. 226, that “it is true that an appeal to the Supremo Court only suspends action on the j udgment; but in the case at bar, the proceeding before the justice gave the right of entry; the order *335of dismissal could not divest that right. It may be that the company would have been estopped by the judgment from showing that the proceeding before the justice was regular, but for the appeal to the Supreme Court.” Now, whilst the dismissal did not divest the right of entry, the judgment of the circuit court is final, unappealed from, and the judgment does estop the company from showing that the proceeding was regular.
W. R. Pierse, H. D. Thompson, H. Craven, R. Lake, and R. N. Williams, for appellant. M. S. Robinson, J. A. Harrison, J. W. Sansberry, and E. B. Goodykoontz, for appellee.It is urged, that the only question which the appellant had a right to have tried, on the appeal from the assessment, was the amount of damages; and that by the appeal he waived all others. The statute provides, “ that either party may, at their option, appeal the same to the circuit court of the proper county, as in oilier cases.” The fair construction of this provision is, that the case shall stand on appeal in the circuit court as other appeals stand. The circuit court had jurisdiction to inquire into the whole case.
The court below erred in overruling the motion for a new trial.
Judgment reversed, with costs; cause remanded, with directions to grant a new trial, and for further proceedings.