On Petition for a Rehearing.
Howk, J. — The appellant asks a rehearing in this case for the following cause :
“The court erred in the decision rendered in said cause, in-deciding that the Henry Circuit Court did not err in overruling the appellant’s motion for a new trial of said cause, in that court.”
In discussing the alleged error of the court, in overruling the appellant’s motion, counsel says : “Conceding that she” (the appellee Maria L. Watkins) “is not a member, and that the company has failed to give the proper number of notices, and she had not appealed, we were entitled to prove on the trial the public utility of the work, and the benefits her lands would receive, and the ruling out of this evidence was erroneous. It was offered both in the original and rebutting evidence, and the ruling assigned as a cause for new trial.”
We are of the opinion that the court committed no error in excluding from the jury the offered evidence in question» The appellees were sued by the appellant, in this action, as-“members of said corporation, by virtue of their having signed its original articles of association.” In section 21 of the act of March 10th, 1873, under which act, as stated in the original opinion, the appellant alleged that it was duly and legally organized as a corporation, it is provided, among other things, in relation to an appeal from the assessment of benefits, that, if the party appealing “is a member of the association, he shall not be allowed to make any objection to the assessment, except such as relates to the amount of the same.” 1 R. S. 1876, p. 424. •
*465In The Liberty Township Draining Association v. Brumbach, 68 Ind. 93, it was decided that this statutory provision is applicable, also, to suits by the corporation against its members for the collection of assessments, and will limit and confine them to such defences only as relate to the amount of their assessments.
It seems clear, therefore, that, under the allegation of the appellant’s complaint in the case at bar, that the appellees' were members of the appellant corporation, the evidence on both sides, as well for the appellant as for the appellees, was properly limited by the court to such as related to the amount of the assessment. All other evidence would be inapplicable to the case made by the complaint, and would seem to be immaterial and irrelevant.
The only other ground for a new trial, alluded to even by the appellant’s counsel, in his original brief, was, that the verdict of the jury was not sustained by the evidence. We think, however, that this ground for a new trial was not well assigned. The evidence did not even tend to prove the case made by the allegations of the appellant’s complaint; and, therefore, the verdict for the appellees was right on the evidence.
In conclusion, we may properly remark that a rehearing will not be granted, to enable parties, or their counsel, to present questions for decision for the first time, when it appears that the questions are such as ought to have been, and might have been, presented on the original hearing of the cause. The Board, etc., of Lawrence Co. v. Hall, 70 Ind. 469.
The court did not err, we think, in overruling the appellant’s motion for a new trial of this cause.
The petition for a rehearing is overruled, at the appellant’s costs.