Volume 151 — Indiana Reports

<p>Appeal.—Complaint Assailed for First Time on Appeal.—A party who permits the complaint of his adversary to go unchallenged in the trial court, and attempts to assail it for the first time on appeal, under section 846, Burns’ R. S. 1894, will be required to challenge such complaint on the ground that it does not state facts sufficient to constitute a cause of action; to challenge the complaint on the ground that it does not state facts to entitle the plaintiff “to the relief prayed” ^insufficient. pp. 9, 10.</p> <p>Same.—Motions.—Review.—The rulings of the trial court in denying motions to strike out parts of complaint, to postpone trial, for a jury trial, and for change of venue from the county, will not be reviewed on appeal, where such motions were not brought into the record by bill of exceptions. • p. 10.</p> <p>Decedents’ Estates.—Sale of Real Estate to Pay Debts.—Cross-complaint.—Jurisdiction.—In a proceeding by an administrator to sell real estate to pay debts of decedent, the court may consider a cross-complaint setting up reasons why the interest of a certain heir should be sold first, pp. 10, 11.</p> <p>Married Women.—Suretyship.—Estoppel.—A husband deeds certain land to his wife, but the deed is not recorded. The wife subsequently joins her husband in a mortgage of the land. The mortgagee, in taking such security, is deceived by the conduct of the husband. Held, that the wife is estopped to assert, as against the mortgagee, the benefit of the statute relieving her of liability upon a contract of suretyship, pp. 12-15.</p>

<p>Prom the Noble Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Blackford Circuit Court.</p>

<p>From the Pulaski Circuit Court.</p>

<p>.Parent and Child.—Damages.—Actionby Child.—Contributory Negligence of Parents Not Imputable to Child.—The negligence of the parents of an infant of such tender years as incapacitates it to-exercise due care cannot be imputed to the child as contributory negligence of the child, in an action by the child for damages caused by the negligence o£ defendant. Lafayette, etc., B. B. Co. v. Huffman, 28 Ind. 287, and Hathaway v. Toledo, etc., B. W. Co., 46 Ind. 25, overruled in part. pp. 1$-57.</p> <p>Municipal Corporations. — Streets. — Obstruction. — Damages.—A city is not liable for damages resulting from the negligence of a. contractor who in supplying such city with lumber had piled same in the street, where the city had no notice of such negligent act, either express or implied, pp. 58-61.</p> <p>Same. —Streets.— Obstructions.—■ Builder’s Material.— Damages.—A city is not liable in damages for injuries resulting from the negligent acts of a builder in placing lumber in the street, unless it had notice, express or implied, that the lumber had been placed in the street and that it was in a dangerous condition.* pp. 58-61.</p> <p>Appeal and Error.—Behearing.—A question raised for the first time on a petition for a rehearing which might have been raised before, is not entitled to notice, pp. 62, 63.</p>

<p>Towns.—Incorporation.—Elections.—Remonstrants. — When Proper Parties to an Appeal.—Where persons appeared before the county1 commissioners and moved to dismiss the proceedings in an election for the incorporation of a town, such persons were proper parties to an appeal from the action of the board of commissioners in overruling such motion although no affidavit was filed by them showing that they had an interest in the matter decided, and that they were aggrieved thereby, where it appeared from the recital in the motion that they were interested, and entitled to become parties. pp. 71-73.</p> <p>Same.—Incorporation.—Appeal.—Practice.—In an appeal to the circuit court from the action of the board of county commissioners in overruling a motion to dismiss proceedings filed before such board in the incorporation of a town, the court erred in dismissing the-appeal on the ground that no remonstrance or other pleading was presented by the transcript, where it appeared that a nunc pro tunc entry was made showing the filing of the motion before the board' to dismiss and the entry certified to the circuit court, p. 73.</p> <p>Dismissal.—Practice.—Harmless Error.—-The fact that an appeal from the board of county commissioners to the circuit court could not have succeeded would not render the dismissal thereof harm, less error, pp. 73, 74,</p> <p>County Commissioners. — Appeals. — Amendment of Pleadings. — Issues raised before the board of county commissioners in proceedings for the incorporation of towns are amendable on appeal to the circuit court, pp. 73, 7k-</p> <p>Same.—Appeals.-—Bond.—Pending a motion to dismiss a cause appealed from the board of county commissioners to the circuit court a new bond may be filed and approved by the court, p. 7k-</p> <p>Same.—Appeals.—Bond.—The appellee in a cause appealed from the board of county commissioners to the circuit court has the right to a bond with sureties, and is entitled to a dismissal of the appeal if such bond is not filed, p. 7k-</p>

<p>From the Sullivan Circuit Court.</p>

<p>From the Cass Circuit Court.</p>

<p>Insurance.—Payment of Premiums.—Premium Notes.—Forfeiture.—* Life Insurance.—-Where a life insurance policy contains a condition that all premiums or notes given the company for premiums must be paid on or before the days upon which they become due or the policy shall not be binding or valid, the failure to pay a note given for premium at the maturity thereof, prior to the death of assured, renders such policy void. pp. 90-92.</p> <p>■Same.—Premium Notes.—Renewal of Notes.—Pleading.—An allegation in a reply to an answer to a complaint in an action on a life insurance policy that certain notes executed by the assured were not given for unpaid premiums on such policy, but were given and accepted in renewal of certain other notes which were given and accepted in payment of such premium is overcome by a statement • in the renewal notes that the amount therein promised to be paid is the premium on the policy in suit. pp. 92-94.</p>

<p>Prom the Hamilton Circuit Court.</p>

<p>Prom tfie Knox Circuit Court.</p>

<p>Evidence.—Weight Of.—Where the question of the sufficiency of the evidence to establish a fact upon which the verdict is based is raised on appeal, the Supreme Court will consider such evidence as standing alone and uncontradicted, p. 113.</p> <p>Same.—Order of Admission.—Where evidence is admitted out of order, without objection to the order of its introduction, the Supreme Court is bound to consider same. p. 113.</p> <p>Same.—Transcript of Record.—A certified copy of an unauthorized record is not admissible in evidence, pp. 113, 1H.</p> <p>Same.—Longhand Manuscript.—When Copied in Bill of Exceptions. —Where the certificate of the clerk shows that the bill of exceptions has been copied into the transcript it is not necessary that the record show that the longhand manuscript of the evidence was filed in the clerk’s office prior to its incorporation in the bill of ' exceptions, pp. XZJ, 115.</p> <p>Same.—Lost Deed.—Removal of Papers.—In an action to quiet title to real estate involving the question as to who" was the grantee in an unrecorded deed, evidence to the effect that witness saw defendant, shortly after the death of alleged grantee, go to decedent’s private drawer and remove papers therefrom was improperly admitted in evidence where it was not shown that the deed in question was among the papers, pp. 115-119.</p>

<p>Prom, the Steuben Circuit Court.</p>

<p>From the Monroe Circuit Court.</p>

<p>Street Railways.—Three Cent Fare Law.—Act of 1897.—The act of 1897 regulating the fares to he charged by street railways (Acts 1897, p. 201), re-enacts section 9 of the act of 1861, authorizing the incorporation of street railways, section 5450,. ef seq., Burns’ R. S. 1894, wherein no provision was made for the regulation of fares, and adds a proviso regulating fares in cities having a population of 100,000 or more, according to the United States census of 1890.</p> <p> p. m </p> <p>Same.—Regulation of Fares.—Three Cent Fare Law.—Impairment of Contracts.—The legislature has the power to regulate the rates of fare for the transportation of' passengers on street railways within the State, and a city has no authority to enter into a contract with a street railway company curtailing such power, p. 148.</p> <p>Same.—Regulation of Fares.—Three Cent Fare Law.—Section 11 of the act of 1861 (5468, Burns’ R. S. 1894), authorizing the incorporation of street railways, expressly reserves to the legislature the right to amend or repeal such act; the right of the legislature, however, to regulate the fare upon street railways organized under such act, does not depend upon such reservation, p. 148.</p> <p>Same.—Regulation of Fares.—Exemption From Legislative Control. —In order to exempt a common carrier from legislative control over its rates of fare, it must appear that the exemption was made in its charter by clear and unmistakable language, p. 143.</p> <p>Same.—Contract with Cities.-—Legislative Control.—A city has the power to prescribe the terms upon which a street railway company organized under the act of 1861 shall occupy the streets thereof, but such contract is subject to the right of the legislature to amend or repeal the act at its pleasure, and no contract made by a city with a street railway company could prevent the exercise of such power, pp. 148, 144-</p> <p>Constitutional Law.—Special Legislation.—Street Railways.—A law which, applies to cities having a population of 100,000 or more, when there is but one such city in the State, and is so framed as to operate on all other cities in the State as they acquire such population, is a general law within the meaning of section 23, article 4 of the constitution declaring that all laws shall be general and uniform throughout the State, p. 145.</p> <p>Constitutional Law.—Street Railways.—Regulation of Fares.—It is not necessary, that a law regulating the fares to be collected by street railway companies shall operate uniformly on all street railways of the State, it is sufficient if it operates alike upon all such, companies under the same circumstances and conditions, p. 14S.</p> <p>Cities.—Population.—Last Preceding Census.—Street Railways.— Three Cent Fare Law.—Where a statute provides that all cities or towns of a named population, “ according to the last preceding United States census,” shall be governed by the provisions of the act, all cities or towns as they acquire the requisite population, as shown by any census thereafter taken, will be governed by the act the same as if they had the required population as shown by the last preceding census when the law was enacted, p. 146.</p> <p>Constitutional Law.—Special Legislation.—Corporations.—Where a coporation has been created, a special act regulating it without changing the organization of the corporate body is not within the prohibition of section 13 of article 11 of the constitution, pp. 147-154,</p> <p>Same.—Special Legislation.—Street Railways.—Three Cent Fare Law. —The act of 1897, regulating the fares to be charged by street railways (Acts 1897, p. 201), is a mere regulation of an existing corporation, and even if said act is local and special, it is not forbidden by section 22 of article 11 of the constitution enumerating certain cases where special laws shall not be enacted, pp. 153, 154.</p> <p>Same.—Special Legislation.—Street Railways.—Three Cent Fare Law. —Corporations.—Where a local or special law is enacted upon a subject not enumerated in section 22, article 11 of the constitution, it is the expressed opinion and judgment of the legislature that a general law cannot be made applicable, and such judgment is not subject to review by the courts, p. 155.</p> <p>Same.—Special Legislation.—Street Railways.—Three Cent Fare Law. —The legislature of 1861 by passing the general law forl'the incorporation of street railways could not and did not deprive any subsequent legislature of the right to determine whether a general law fixing the maximum fare on street railways could or could not be made applicable, and if the act of 1897 is not a general law, the enactment of the same is the expressed opinion and judgment of the legislature tfiat a general law could not be made applicable, and this judgment cannot be reviewed by the courts, p. 156.</p> <p>Courts.—Construction of Statutes.—The interpretation and construction of the statutes of this State with reference to their relation to the State constitution, and the constitutionality thereof, are questions to be determined by the Supreme Court of the State, and the rule is that such interpretations are binding upon the federal courts, and will be adopted by them. p. 158.</p>

<p>From the Morgan Circuit Court.</p>

<p>From the Madison Superior Court.</p>

<p>Payment.—Secured and Unsecured Claims.—Application.—Where money is received by a creditor without any directions as to how it shall be applied, the creditor may apply the same to the payment of an unsecured indebtedness instead of a secured indebtedness.</p> <p> p. 180. </p> <p>Evidence.—Weight Of.—The Supreme Court cannot disturb a judgment merely on the weight of the evidence, where there is some evidence which, if true, fully sustains the finding of the court on which the judgment is based, p. 181.</p> <p>Appeal and Error.—Assignment of Errors.— New Trial.—Where the surety in an action on a promissory note claims any right different from the rights of a co-appellant he should file a separate motion for a new trial and a separate assignment of errors, pp. 181, 182.</p>

<p>From tbe Montgomery Circuit Court.</p>

<p>From tbe Harrison Circuit Court.</p>

<p>Evidence.—Weight Of.—Special Finding —Where there was evidence to warrant the finding of .facts made by the court, the Supreme Court will not reweigh the evidence, although there were some items of evidence which if taken alone might have warranted a different finding, p. 198.</p> <p>Same.—Admission.—Opinion Evidence.—No error was committed in the trial of an action to set aside a contract for public work in permitting a witness to give his opinion as to whether the time limited in which to complete the contract was too short, pp. 198, 199.</p> <p>New Trial.—Motion.—Evidence.—A motion for a new trial for the reason that “the court erred in allowing James D. Saunders to testify about a paper on American vitrified brick pavements” is too general to raise any question thereon in an action to set aside a contract entered into by a city for paving work, where such witness testified that he and other members of the board obtained informa- ' tion as to the quality of certain bricks to be used from statements they had read in a certain paper taken by the board, p. 199. Same.—Motion.—Evidence.—A specification in a motion for a new trial based upon the action of the court in striking out a portion ‘of the testimony must specify with certainty the testimony stricken out. p. 199.</p> <p>Evidence.— Admission.— Objections. — Error cannot be predicated upon the action of the court in sustaining an objection to the admission of evidence on the ground that it was irrelevant and incompetent, where it is not shown that the proposed evidence was admissible, pp. 199, BOO.</p>

<p>Husband and Wife.—Antenuptial Contracts.—No formality is required in antenuptial contracts, and the rule of construction is to ascertain and give effect to the intention of the parties, such com tracts being favored by the law as promoting domestic happiness and adjusting property rights which would otherwise often be the source of fruitful litigation, p. 202.</p> <p>Same.—Antenuptial Contracts.—Statutory Allowance.—The statutory allowance of 1500.00 payable to a widow from the estate of her deceased husband is waived by a provision in an antenuptial contract “that she hereby releases any and all claims to the property of the said William C. Buffington, her intended husband.” pp. 203, 20A</p> <p>Same.—Antenuptial Contract.—Signing After Marriage.—The fact that an antenuptial contract was not signed until after the marriage would not render the same defective, p. 20J/,.</p> <p>Same.—Antenuptial Contract.—Breach Of.—Forfeiture.—An allegation of a breach of a stipulation in an antenuptial contract to support the wife will not support a claim of forfeiture of the contract, where such stipulation was not a condition upon which the validity of the contract was made to depend, p. 205.</p>

<p>Judgment.—Attachment and Garnishment.— Injunction.—A judgment rendered against a garnishee defendant by a justice of the peace without an affidavit being filed showing grounds of attachment as required by section 925, Burns’ R. S. 1894, and that defendant, a resident householder was not entitled to an exemption of his wages in excess of §25.00, although erroneous, was not void, and an action cannot be sustained to enjoin the collection of same, where the court had jurisdiction of the parties.and the subject-matter of the action.</p>

<p>Insurance.—Forfeiture.—Conveyance.—Right of Subrogation.—Mortgage Clause.—A policy of insurance conditioned that if a transfer of the property insured should be made without the consent of the insurer in writing the insurance should cease from the date of the change of ownership, contained a mortgage clause, attached thereto at the instance of the insured, to the effect that if the insurer should pay the loss to the mortgagee, and should claim as to the mortgagor, that it was not liable for the loss so paid, it should be subrogated to the rights of the mortgagee. The property was sold and transferred without the written consent of the insurer, and, thereafter, was destroyed by fire. The insurer paid to the mortgagee the amount of the policy and received an assignment of the note and mortgage to the extent of the loss paid, and brought suit on such note and mortgage. Held, that the transfer of the property avoided the policy as to the owner, and that the mortgage clause constituted a valid contract between insurer and mortgagee, and that the insurer could recover on the note and mortgage assigned it by the mortgagee, pp. 209-227.</p> <p>Limitation of Actions.—Mortgages.—Default in Payment of Inter- ' est.—Default in payment of interest will not start the running of the statute of limitations against a note secured by mortgage containing a condition empowering the mortgagee to declare the entire debt due upon failure to pay any installment of interest, pp. 227, 228.</p>

<p>Municipal Corporations. — Indebtedness.—Limitation. — Constitutional Lato.—A contract entered into for the construction of a schoolhouse is not rendered void as an entirety by reason of the indebtedness incurred in the construction thereof exceeding the constitutional limitation, and the bond given by the contractors for the performance of the building contract is not rendered void by reason of the fact that the building contract created a debt in excess of two per cent, of the assessed value of the taxable property of the municipal corporation, pp. SS9-SJ/.1.</p> <p>Contracts. — School Buildings. — Construction.— Abandonment of Contract.—Where after the partial construction of a school building an injunction was awarded enjoining the issuance of bonds to cover the expense of the completion of such building, and the contractors abandoned the work, and the school trustees completed the work, using material left on the ground by such contractors, as provided by the contract, the school town is not liable to such contractors for the value of such material, where the cost of completing the building, including the amount paid to such contractors, exceeded the contract price, p. 2^1.</p>

<p>From the Madison Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>Dentistry.—Practicing Without License.—Affidavit and Information.—An affidavit and information charging a person with practicing dentistry without first having “obtained and procured a certificate of qualification and registration so to do, from the board of dental examiners” and without being registered according to law is not bad for failing to negative the granting of a special permit to such person, pp. 247-249.</p> <p>Same.—License.—Constitutional LAw.— Section 5596, Burns’ R. S. 1894, providing for the appointment of a board of dental examiners by the Indiana State Dental Association is not in violation of section 23 of article 1 of the constitution forbidding the granting of privileges which shall not, upon the same terms, equally belong to all citizens, pp. 24.9, 250.</p> <p>Same.—License—Appeal.—Constitutional Law.—The act of March 7, 1887, section 5595, et seq., Burns’ R. S. 1894 (Acts 1887, p. 58), regulating the practice of dentistry and providing for the appointment of a board of examiners is not unconstitutional for failing to extend the right of appeal from the decisions of such board, p. 250.</p> <p>Same.—Practice of Dentistry Without License.—Evidence.—Evidence that defendant leased and occupied rooms for several months for the declared purpose of practicing dentistry; that he had done dental work for three or more persons; that at times he engaged in filling teeth, and at other times did work at the bench, is sufficient to support the verdict that defendant engaged in the practice of dentistry, in a prosecution for practicing dentistry without a license, p. 250.</p>

<p>Instructions.—When Evidence is Not in the Record.—Where the evidence is not in the record the Supreme Court will not consider instructions erroneous if they could have been correct under the issues upon any supposable state of the evidence, p. 253.</p> <p>Same.—Criminal Law.—Weight of Defendant’s Evidence.—No error was committed in instructing the jury in the trial of a criminal action that defendant was a competent witness in his own behalf, but that the jury were the judges of the weight which ought to be given to his testimony, and that in deciding upon such weight they should take into consideration all the facts and circumstances surrounding the case, as disclosed by the evidence, and give defendant’s testimony such weight only as they believed it to be entitled to in view of all the facts and circumstances proved on the trial, p. 853.</p> <p>Instructions.—Weight of Defendant’s Evidence.—Criminal Law. —An instruction given to the jury in the trial of a criminal action that the law gives the' person accused of crime the right to testify in his own behalf, but his credibility, and the weight to be given to his testimony are matters exclusively for the jury, and that the jury has the right to take into consideration the manner of his testifying, the reasonableness or unreasonableness of his account of the transaction, and his interest in the.result of the case as affecting his credibility, and that they are not required to receive blindly the testimony of such accused person as true, nor to disregard it, but to give it due consideration, and determine whether or not his statements are true, and made in good faith, or only for the purpose of avoiding conviction, is not, standing alone, a complete or accurate statement to the jury of the rules for weighing defendant’s testimony, and is open to criticism in that it singles out defendant and directs the advice and admonition alone to his testimony; but in the absence of the evidence, and when considered with the other instructions properly defining the weight to be given to defendant’s evidence, the Supreme Court cannot say that defendant was prejudiced in any of his substantial rights thereby. pp. 853-856.</p> <p>Same.—Must Be Construed Together.—Instructions must be considered as a whole, and not in detached fragments, and when so considered, if they can be said to present the law upon the question to which they were directed with reasonable clearness or accuracy, it will not be presumed that the jury was misled thereby, although it may be said that some particular instruction, or part thereof, considered alone, was erroneous, or was liable to be misunderstood by the jury. p. 856.</p> <p>Same..—Reasonable Doubt.—Criminal Law.—Instructing the jury in the trial of a 'Criminal cause that it was not the intention of the court by the wórds “reasonable doubt,” to declare that a bare possibility of innocence would acquit, and that “where a circumstance is of a doubtful character, or doubtful in its bearings, you are to give the accused the benefit of the doubt; if, however, all the facts established necessarily lead the mind to the con elusion -that the defendant is guilty, though there be a possibility that he is innocent, you should find him guilty,” is not reversible error, where the jury was clearly and correctly informed upon the subject of reasonable doubt in other instructions given, pp. 857-859.</p>

<p>From the Whitley Circuit Court.</p>

<p>Master and Servant.— Personal Injuries. — Proximate Cause. — Plaintiff’s intestate was employed by defendant railway company on a work train in the capacity of fireman on a pile-driver. On the day of the accident such train was ordered to work extra at certain points on the road from 7 a. m. to 6 p. m., and on its return while running backward it collided with an extra freight train resulting in the death of intestate. Both trains were moving under the orders of defendant, and neither train had notice or knowledge of the other. Intestate was at his proper place on the work train at the time of the collision. Held, that defendant’s negligence was the proximate cause of the death of intestate, although the work train may have violated a rule requiring it to keep a footman before and behind the train with danger signals at certain distances, pp. 293-302.</p> <p>Railroads.—Rules.—Orders.—Where an extra freight train sent out under written orders of the superintendent was about to pass over a portion of the division occupied by a work train, without notice of such work train, a verbal notice given by a telegraph operator that such work train was out under flag and that its orders did not concern the freight, did not amount to a modification of the written orders given, pp. 302-30J/..</p> <p>Master and Servant.—Vice Principal.—Railroads.—A superintendent of a railroad division having general charge and supervision of the entire business over such division is a vice principal, and acts in the place of the master, pp, 304--306.</p> <p>Same.—Train Dispatcher.-—Vice Principal.—Fellow Servant.—Railroads.—A train dispatcher who controls and directs the movements of trains on a division of a railroad is not a fellow servant with trainmen in the employ of the railroad company, but is a vice principal, for whose negligence the company is liable, pp. 306-315. Appeal and Error.—Record.—Available Error.—An assignment of error based upon the action of the court in overruling demurrers to several paragraphs of complaint is unavailable where the demurrers are not in the record, p. 315.</p> <p>Same.—Assignment of Error.—An assignment of error that the complaint does not state facts sufficient to constitute a cause of action is not available unless all of 'the paragraphs thereof are bad. p. 315.</p>

<p>From the Clark Circuit Court.</p>

<p>Appeal.—Weight of Evidence.—Where the evidence on the trial of a criminal cause sustains the verdict of the jury in all material respects, the judgment of the trial court cannot be disturbed on appeal. p.su. •</p> <p>Same.—Exclusion of Evidence.—Harmless Error.—An erroneous ruling excluding certain evidence is harmless, where the evidence is afterwards admitted in response to other questions substantially the same. pp. 334, 335.</p> <p>Practice.—Witness.—Leading Question.—That a question to a witness to some extent suggests the answer desired is not a reversible error, p. 336.</p> <p>Criminal Law.—Motion for New Trial Not Part of Trial.—The ruling on a motion for a new trial in a criminal case is no part of the , trial of the accused, as contemplated by the statutory and constitutional rule. pp. 336, 331.</p> <p>Same.—Practice.—Appeal.—A judgment against a defendant in a criminal cause will not be reversed on appeal because the record does not affirmatively show that he was asked to show cause why judgment should not be pronounced upon the verdict, pp. 337, 338.</p>

<p>Appeal and Error.—Bill of Exceptions.—Receivers.—Exceptions to a receiver’s report oannot be considered on appeal where such report is not properly in the record, p. 380.</p> <p>Same.—Bill of Exceptions.—An indorsement on the back of a bill of exceptions by the judge that the bill was presented on a certain date prior to the time it was signed by him, and that it was taken under advisement, is not sufficient to show that the bill was presented in time. pp. 830, 331.</p> <p>Same.—Bill of Exceptions.—The bill of exceptions must be signed by the judge before being filed with the clerk, p. 881.</p> <p>Costs.—Where There Is No Judgment Taxing Costs.— Costs, in the absence of a judgment taxing same, are upon the parties making them. p. 881.</p>

<p>Conspiracy.—Evidence.— Unsoundness of Mind of Co-conspirator.— One who aids or abets, or otherwise procures a person of unsound mind to commit a wrongful act to the injury of another is liable in damages therefor to the person injured, and no error was committed in the trial of an action for conspiracy in refusing to permit defendants to prove that one of the defendants was of unsound mind at the time of the commission of the acts complained of. pp. 335-337.</p> <p>Same.—Agreement.—Evidence.—In order to establish a conspiracy it is not necessary that there should be direct evidence of any agreement. p. 337.</p> <p>Appeal and Error.—Assignment of Error.—Motion for Judgment.— No question is presented on an assignment that the court erred in overruling appellant’s motion for judgment in his favor, where no motion was made by either of appellants for judgment in ¡disfavor. p. 337.</p> <p>Same.—Assignment of Error.—The question whether appellee was entitled to judgment in her favor on the special verdict is not presented by an assignment of error “that the court erred in permitting appellee to remit 83,000 of the verdict and rendering judgment on the remainder.” p. 337.</p> <p>Judgment.—Remittitur.—No error was committed in permitting a remittitur by plaintiff of a part of the damages assessed and rendering judgment for the remainder, pp. 337, 338.</p> <p>Same. — Defeat Must Be Specifically Pointed Out.-— No question can be presented on appeal to the rendition of a judgment on the verdict unless the objection in the court below particularly points out the defect or mistake therein and asks that the same be corrected. p. 338.</p> <p>Malicious Prosecution.—Probable Cause.—Special Verdict.—When a special verdict is returned in an action for malicious prosecution, the jury must find the facts, and the court determines from the facts found whether or not there was probable cause, p. 338.</p> <p>Conspiracy.—Special Verdict.—It' is not necessary that a special verdict in an action for conspiracy should find the evidence and all the surplusage contained in the complaint, p. 338.</p>

<p>From the Montgomery Circuit Court. -</p>

<p>From tbe Clinton Circuit Court.</p>

<p>Taxation.— Exemption of Property Used for School Purposes.—The lands of a private owner leased and occupied for school purposes are not exempt from taxation.</p>

<p>Prom the Floyd Circuit Court.</p>

<p>From the Dearborn Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the LaPorte Circuit Court.</p>

<p>From the Boone Circuit Court.</p>

<p>Judgment.—Joint Action.—Separate Judgment.—A separate judgment may be rendered against each oí the defendants in a joint action under the provisions of section 579, Bums’ R. S. 1894, if the facts found would have authorized such judgments in separate actions against such defendants, p. 394-</p> <p>New Trial.— Joint Action.—Separate Judgments.— A new trial should not be granted for the reason that the court rendered separate judgments against two defendants in a joint action, where it is evident from the facts found that actions brought severally against each of the defendants would result in the same recovery against each of them. pp. 394, 395.</p> <p>Trial by Jury.—Action to Enforce Vendor’s Lien.—A suit to enforce the equitable lien of a vendor on sale of real estate is of exclusive equitable cognizance, and is not triable by jury. p. 396.</p>

<p>Prom the Marion Superior Court.</p>

<p>Drains.—Repairs.—Allotments.—Jurisdiction of Trustee.—The trustee of the township where the allotment for the repair of a public drain is located has jurisdiction of’such repairs, although the lands assessed for such repairs are in another township, p. j.0%.</p> <p>Same.—Repairs.—Made by Wrong Trustee.—Injunction.—Where the trustee of the township on which lands assessed for the repair of an allotment of a public drain located in another township, under a misapprehension of his duty, repaired such allotment, an action will not lie to enjoin the collection of the expense of such repairs, where the landowner was given notice to mate the repairs, pp. JfiS-Jfij.</p>

<p>Appeal and Error.—Exceptions.—Divorce.—Defense by Prosecuting Attorney.—Appeal.—-Where a prosecuting attorney was admitted to defend a divorce suit on the representation that the suit was collusive, and the defense made by the defendant was not in good faith, an appeal will not lie from the action of the court in rejecting the defense of such prosecuting attorney and discontinuing him as a representative of the State in such cause where no exception was taken to such ruling of the court, pp. 404-406. Prosecuting Attorney.—Divorce.—A. motion for a new trial and a tender of a hill of exceptions in a divorce proceeding by a prosecuting attorney were entitled to no recognition by the court where such prosecuting attorney was admitted to defend, and upon a hearing of the evidence was discontinued as a representative of the State in such cause before tendering such motion and bill of exceptions, p. Jfi6.</p> <p>Supreme Court.—Writ of Mandate.—Petition.—Sufficiency.—A petition for an alternative writ of mandate from the Supreme Court directing a judge of the trial court to show cause why a motion for a new trial should not be filed and a bill of .exceptions tendered be signed and made part of the record is bad where it is not shown that such motion and bill of exceptions were tendered with a view to an appeal to the Supreme Court, p. 407.</p>

<p>Prom the Ohio Circuit Court.</p>

<p>Pleading.—Counterclaim.—A counterclaim is not a defense to a plaintiff’s action, but is a cross-action by the defendant, and it must state facts sufficient in law to constitute a cause of action, or it will be held bad on demurrer, pp. 417, 418.</p> <p>Same.— Answer.— Counterclaim.— A pleading cannot perform the office both of answer and counterclaim, p. 418.</p> <p>Same.—Building and Loan Association.—Foreclosure of Mortgage.—• Answer.—Counterclaim.-—A pftading in defense of an action to foreclose a building and loan mortgage which admits the execution of the mortgage and the delinquency of defendant in his payments thereon and alleges that defendant has paid a certain amount upon the stock borrowed on, that he is entitled to have the stock canceled and the proceeds thereof including six per cent, interest thereon applied as a credit on his loan is not good either as an answer or counterclaim, p. 418.</p> <p>Same.—Building and Loan Association.— Foreclosure of Mortgage.— Answer.—Usury.—An answer to a complaint in foreclosure of a mortgage given to a building and loan association which alleges that by the terms of the note and mortgage a greater rate of interest was contracted for than allowed by law; that the portion thereof called premium was not to be paid for a preference in procuring said loan; that defendant had paid §55.60 in excess of the legal rate; and asking that this amount be recouped against any sum found due plaintiff does not state facts sufficient to show payment by defendant of any usurious interest, pp. Jf.18-4%1.</p>

<p>From the Fulton Circuit Court.</p>

<p>Appeal.—Motion for New Trial.—Time of Appeal.—Where judgment is rendered upon the verdiot before the motion for a new trial for cause is filed, the final judgment within the meaning of the statute governing appeals is the judgment of the court overruling such motion for a new trial, pp. 433, 433.</p> <p>Same.—Jurisdiction.—Time of Appeal.—Motion for New Trial.—The Supreme Court has no jurisdiction of a cause where an appeal is not taken within one year from the rendition of judgment overruling a motion for a new trial for cause, p. 433.</p> <p>Same.—New Trial as of Right.—A judgment overruling a motion for a new trial as of right is a final judgment, and an appeal therefrom within one yea,r is authorized by sections 644, 645, Bums’ B. S. 1894. pp. 433, 434-</p> <p>New Trial as of Bight.—Trespass.—In an action seeking to recover damages for an alleged trespass to real estate, and to enjoin the threatened continuation of the same,, the losing party is not entitled to a new trial as of right, as the title to the real estate only comes in question collaterally, and as a mere incident to such action. pp. 434, 435.</p>

<p>Drains.—Repair of Tile Drains.—Trespass.—A public tile drain was constructed over the lands of defendant and others and a portion thereof was allotted, by the county surveyor to defendant to keep in repair. In the original construction thereof the tile were not in all cases put down to the grade line of the specifications, yet the ditch was accepted by the drainage commissioner as complete according to the specifications. The township trustee gave defendant notice to repair his allotment by removing the tile and lowering same to the specification grade in order to drain more effectually the lands for which the ditch was intended. Defendant refused to comply with said notice, and refused permission to have such repairs made by the trustee, and caused the trustee to be arrested for trespass for entering upon his lands to make such repairs. Held, that it was the duty of the township trustee to make such repairs, and that defendant was not entitled to maintain his action, pp. 435-441.</p> <p>Same.—Tile Drains.—Repairs.— It was not intended by the provision of section 5637, Bums’ R. S. 1894, relating to drainage that tiling so placed in a public ditch as to obstruct drainage need not be put in repair, but that a landowner by properly tiling his allotment might thus avoid the necessity of cleaning out his part of the ditch. pp. 441, 442.</p>

<p>Prom the Jay Circuit Court.</p>

<p>Prom the Marion Superior Court.</p>

<p>Schools and School Districts.—Construction of Joint Schoolhouse. —Where upon petition for the construction of a schoolhouse at the joint expense of two townships the trustees thereof disagreed, and an appeal was taken to the county superintendent, as provided by law, who decided in favor of the petitioners, and the trustee who favored the construction thereof purchased a lot upon which to erect such school building without the knowledge or consent of the other trustee, an order issued by the county superintendent directing the trustees of both townships to erect the schoolhouse upon the land so purchased was unauthorized.</p>

<p>Judgment.—Void Sales.—Satisfaction of Judgment.—Failure to Appraise Property.—A sale of real estate was made without appraisement, on a judgment, subject to valuation and appraisement laws, a certificate of purchase was issued^to the judgment plaintiff reciting the payment of the amount of the writ, and thereafter a sheriff’s deed was executed to plaintiff. Thereafter, more than two years after the issuance of the writ, the sheriff returned the execution unsatisfied, and plaintiff procured an execution in the nature of a venditioni exponas, and, upon said writ, appraisement, notice, and sale were made, the judgment plaintiff purchasing samé, and receiving a certificate of purchase, and thereafter the execution defendant brought suit to quiet his title to said real estate. Held, that the irreguiarity in selling without appraisement, and holding the writ for two years did not extinguish the lien of the judgment.</p>

<p>From the Lake Circuit Court.</p>

<p>From the Howard Circuit Court.</p>

<p>From the Washington Circuit Court.</p>

<p>From the Sullivan Circuit Court.</p>

<p>Criminal Law.—Instruction.—Evidence.— Appeal.— Where the evidence is not in the record, and there is no statement in the bill of exceptions showing that an instruction which the court refused to give to the jury in the trial of a criminal cause was relevant to the evidence, no question is presented thereon for decision in this court. p. 486.</p> <p>Same.— Instructions.— When Evidence Not in Record.—Appeal.— Although it is not necessary in appeals by the State in criminal cases to set forth the evidence in full, there must be some statement in the bill of exceptions showing that there was evidence to which instructions offered and refused were relevant, or the court will not pass upon alleged errors in refusing to give same. p. 486.</p> <p>Same.—Indictment.—Instruction.—Evidence.—The name by which a person is commonly known may be employed in an indictment, and it will be good if the proof shows that he is commonly called by that name; but the Supreme Court cannot reverse a cause on an in- ' struction given by the court to the effect that the names of the owners of stolen property must be proved as charged-in the indictment, where the evidence is not in the record, pp. 486, 487.</p> <p>Same.—Indictment.—Larceny.—Name of Owner of Property.—Variance.—In a prosecution for larceny, proof that one of the owners of the stolen property was Franklin A., instead of Frank A., as charged in the indictment, would constitute a fatal variance, p. 487.</p>

<p>From the Randolph Circuit Court.</p>

<p>Criminal Law.—Instructions.—Presumption.—Record.—Bill of Exceptions.—Appeal and Error.—-When, in a criminal cause it is not affirmatively shown by the bill of exceptions that it contains all the. instructions given by the court, this court must presume that such bill of exceptions does not contain all the instructions given, p. 195.</p> <p>Same.—Instructions.—Presumptions.—Bill of Exceptions.—Appeal and Error.— It will be presumed on the appeal of a criminal cause that the substance of instructions asked was embraced in instructions given by the court which are not contained in the bill of exceptions, and that if any instructions set out in the bill of excep-' tions are erroneous that they were corrected or withdrawn by other instructions given and not set forth in the record, where it is not affimatively shown by the bill of exceptions that it contains all the instructions given by the court, pp. 496-601.</p> <p>Appeal and Error.—Record.—Rules of Court.—The party asserting that a ruling of the trial court is erroneous must cite the page and line of the record containing such ruling, pp. 501, 602.</p>

<p>Taxation.— County Assessor.—Building and Loan Association.— Examination of Books.—Mandamus.—The tax laws of the State make it the duty of the county assessor to assess all property that has been omitted from taxation, and a writ of mandate will lie to compel a building and loan association to permit the county assessor to examine its books for the purpose of determining whether any of the stock of such association had been omitted from taxation, pp. 503-505.</p> <p>Parties.—Mandamus.—Building and Loan Association.—Taxation. —The officers of a building and loan association having the custody of its books and papers are proper parties in an action in mandamus to compel the association to permit the county assessor to examine its books for the purpose of determining whether any of the stock of such association has been omitted from taxation, p. 505.</p> <p>Mandamus.—When No Other Adequate Remedy.—It is not the tule in this State that a writ of mandamus is not proper if there is another remedy; the rule is that such writ is not proper if there is another adequate remedy, p. 505.</p>

<p>From the Randolph Circuit Court.</p>

<p>Appeal and Error.—Assignment of Error.— Pleading.—Special Verdict.—An assignment of error as to rulings upon pleadings need not be considered, where the same question arises on the special verdict, p. 508.</p> <p>Landlord and Tenant.—Action for Possession.—Special Verdict.— A finding in a special verdict in an action by a lessor against the lessee for the possession of the leased premises that lessee was the owner of the leased premises subject to certain mortgages, one of which had been foreclosed, and that he was induced by fraud to enter into the lease, believing that such lease contained a stipulation that lessee might redeem the property after the expiration of the year of redemption will not support a judgment for defendant. pp. 508-511.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Cass Circuit Court.</p>

<p>From the Porter Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>Appeal and Error.—Joint Assignment of Error.—Parties.—Where one of the parties in a joint assignment of error has no appealable interest therein, no question in favor of the other party can be presented on such joint assignment, pp. BJfl-BIfi.</p> <p>Same.—Corporations.—Parties.—Receivers.—A stockholder and general manager of a corporation has not such interest in a judgment appointing a receiver of the corporation as to become a proper party appellant in an appeal from such judgment, pp. BJfl-BJJ).</p>

<p>Contempt.—Indirect Contempt.—Practice.—The proper procedure for bringing before the court persons charged with indirect contempt is by order of court based upon the affidavit and information of some officer of the court or other responsible person, as provided by section 1024, Burns' R. S. 1894, and not by grand jury indictment or a simple information by the prosecuting attorney.</p>

<p>Prom the Benton Circuit Court.</p>

<p>Officers.—County Treasurer.—Term of Office.—Constitutional Law. ■—The act of March 8, 1897 (Acts 1897, p. 288), providing that the “term of county treasurer shall begin on the first day of January next following the term of the present incumbent” is not invalid as extending the term of the incumbent thereof beyond the length of time prescribed by section 2, article 6 of the constitution, as such act adds nothing to the term of the incumbent, but' simply postpones and fixes the time when his successor’s term of office shall begin. pp. 556-565.</p> <p>Same.—County Treasurer.—Term of Office.—Vacancy.—Constitutional Law.—Where by the act of March 8, 1897 (Acts 1897, p. 288), fixing the terms of county treasurers the time when the treasurer elect takes office is postponed three months beyond the termination of the term of the incumbent, the office does not thereby become vacant, although there is no provision made in the act as to who shall fill the office during such interval, as such incumbent is entitled to hold the office under the provisions of section 3, article 15 of the constitution, “until his successor shall have been elected and qualified.” pp. 557-559.</p> <p>Officers.—County Treasurer.—Term of Office.—Vacancy.—Where the term of office of a county treasurer ended in September, and the act of March 8, 1897 (Acts 1897, p. 288), fixing the commencement of the term of office of county treasurers January 1, was in force at the time his successor qualified, such successor could not qualify to enter upon any other term than the one commencing on the day .fixed therefor in said act, and he was not elected and qualified to enter upon the duties of the office at the expiration of the two years’ term of the incumbent thereof, pp. 560, 561.</p>

<p>Private Roads.—Obstruction.—In an action to enjoin defendant from obstructing a private way over defendant’s land obtained by plaintiff under an oral contract, an allegation “that plaintiff entered into an agreement with defendant by the terms of which he granted to her a perpetual roadway, for considerations paid and value parted with, said consideration being the use of, and the fight in certain lands of the plaintiff by the defendant as a roadway,” etc., is sufficient to show that plaintiff performed her part of the agreement.</p>

<p>From the Fulton Circuit Court.</p>

<p>From the Porter Circuit Court.</p>

<p>Appeal and Error.—Evidence.—Bill of Exceptions.—Where it is affirmatively shown by the bill of exceptions that evidence was given at the trial which was not copied into the bill, a motion for a new trial based upon causes depending upon the evidence cannot be considered on appeal, pp. 580, 581.</p> <p>New Trial.— Mortgages.— Foreclosure.— Counterclaim.—A motion for a new trial in an action to foreclose a mortgage was properly overruled, where such motion was based upon the insufficiency of the evidence to support the finding of the court upon a .counterclaim, if the finding of the court upon the issues joined on the complaint was correct. In such case the motion should ask for a new trial of the issues joined on the counterclaim, p. 581.</p> <p>Courts.—Jurisdiction.—Marion Superior Court.—The Marion Superior Court has jurisdiction of actions to foreclose mortgages on real estate in Marion county, p. 582.</p> <p>Decedents’ Estates.—Mortgages.—Foreclosure.—Complaint.—It is not necessary to allege in a complaint in an action against an administrator- and the heirs of a decedent to foreclose a mortgage executed by such decedent that a claim therefor had been filed against his estate; if a claim therefor had not been filed such fact should be pleaded in bar or in abatement, pp. 583-586.</p>

<p>Trespass.—Railroad and Highway Crossings.—Child Playing Upon Track.—A child playing upon a railroad and highway crossing is not a trespasser, pp. 590, 591.</p> <p>Railroads.—Contributory Negligence of Child on Track.—Conflict of General Verdict with Answers to Interrogatories.—Special findings, by way of answers to interrogatories propounded to the jury, that plaintiff, a boy seven and one-half years old, went to sleep upon a railroad track at a highway crossing; that plaintiff was a child of usual and ordinary intelligence and physical strength and activity for his age; that he knew that trains were run on such track, and that if he remained upon the track he was liable to be run over and injured, show contributory negligence so conclusively that the special findings will prevail over a general verdict for plaintiff. pp. 587-597.</p>

<p>Appeal and Error. — Receivers. — Preferred Claims. — Review. — Where a claim of preference filed with a receiver does not show the ground on which preference is based, and the exception to the receiver’s report denying the preference refers for facts to a pleading not in the record, a special finding of facts and conclusion of law upholding the receiver’s report will not be reviewed on appeal.</p>

<p>Deeds.—Description of Real Estate.—Meander Lines.—Where in a conveyance of real estate the description is by metes and bounds, and a part of the description is the meander line of a river, such meander line is the actual waterline, unless the contrary clearly appears from the deed.</p>

<p>Prom the Jay Circuit Court.</p>

<p>Appeal and Error.—Parties.—Joint Judgment.—Notice.—Appearance.— The appearance in the Supreme Court by the husband at the time of the filing of an appeal by his wife from a judgment foreclosing a mortgage given by her, and filing his declination to join in the appeal, and his waiver of notice of such appeal is sufficient to authorize the court to entertain jurisdiction of the appeal. pp. 638, 639.</p> <p>Same.—Answer.— Carrying Demurrer Back to Complaint.—Where defendant’s answer was held good on demurrer she cannot urge on appeal that the court erred in not carrying the demurrer back to the complaint, pp. 639, tiJfi.</p> <p>Pleading.—Demurrer.—Reply.—-A demurrer to a reply “for the reason that it does not state facts sufficient to constitute a cause of reply herein” is not in compliance with the statute; the demurrer should be on the ground that the facts stated in the reply are not sufficient to avoid the answer, p. 6Jfi.</p> <p>Mortgages.—Married Women.—Husband and Wife.—A decree foreclosing a mortgage executed by a married woman on her separate real estate and rendering judgment for the full amount thereof is erroneous where it was shown by the evidence that a large portion of the debt secured, by the mortgage was the debt of the husband. pp. 6Jfi-6^3.</p>

<p>From the Allen Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>Instructions.—Must Be Construed Together.—Criminal Law.—An instruction in á criminal cause stating tbe elements constituting tbe crime of burglary, concluding with a direction to find the defendant guilty if all of those elements were established beyond a reasonable doubt, is not so defective as to amount to reversible error in that it authorized a conviction without proof that the accused committed the crime, where the instruction immediately preceding set out the information against the accused charging him with burglary, pp. 668-670.</p> <p>Same.—Must Be Construed Together.—Instructions must be construed with reference to each other, and as an entirety, and not in dissected parts, and if the instructions as a whole correctly present the law to the jury, even though some particular one standing alone would be erroneous, affords no ground for reversal, p. 670.</p> <p>New Trial.—Misconduct of Jury.—An affidavit for a new trial made by defendant's attorney on information and belief of the misconduct of the jury while in the jury room deliberating upon their verdict without stating the source of his knowledge of such misconduct is insufficient, pp. 671-678.</p> <p>Same. —Newly Discovered Evidence. —Impeachment of Witness.— Newly discovered evidence going merely to contradict and impeach a witness who testified against defendant is not sufficient to justify the court in granting defendant a new trial, pp. 678, 679.</p> <p>Same.—Néwly Discovered Evidence.—Confidential Communications.— Attorney and Client.—Newly discovered evidence consisting of a communication made by a client to his attorney is not ground for a new trial, pp. 678, 679.</p>

<p>Pleading, — Complaint. — Joint Action. — Candidates for Office.— Judges.—Appellate Court.—The nominees for the office of appellate judges have such a common interest in the result of an action for a writ of mandate requiring the state board of election commissioners to place their names on the official ballot as to sustain a joint action, pp. 681, 6S2.</p> <p>Appellate Court.—Election of Judges.—Term of Office.—The act creating the Appellate Court limited the existence thereof to six years from March 1, 1891; the act of 1893 fixed the term of office of each judge first elected at four years from the 1st day of January, 1893. Held, that the judges elected at the general election of 1896 took their offices January 1, 1897, and held them until March 1, .'1897, when the existence of the court was to end by law, notwithstanding the subsequent enactment of a statute extending the existence of the court four years, pp. 682-685.</p> <p>'Appellate Court.—Judges.—Extension of Term.—The act of 1891 created the Appellat® Court and limited its existence to March 1, 1897; the act of 1897 extended the period of its existence for four . years from January 1, 1897, and provided that the present judges should hold their offices for and during the term of four years from the 1st day of January, 1897. Held, that the provision extending - the term of the present judges is void as beyond the power of the • legislature, pp. 684--687.</p> <p>Constitutional Law.—Election of Officers.—Appellate Court.— Section 1, article 15 of the constitution [providing that all officers whose appointments are not otherwise provided for in the constitu- ■ tion shall be chosen in such manner as may be prescribed by law, • confers upon the legislature the power to prescribe by law the man- . ner of electing such officers, but not the power to elect them. p. 687.</p> <p>Same.—Elections.—Appellate Court.—Under section 14, article 2 of the constitution, providing expressly for holding general elections, . containing a proviso that the General Assembly may provide by law “for the election of all judges of courts of general and appellate jurisdiction by an election to be held for such officers only,” the people have the right to elect the judges at general elections, • except where the legislature has designated some other time for .' that purpose, and the legislature could not fill the office of appellate judge by appointment, if it had the power to appoint, only until the time of the next general election, p. 688.</p> <p>Appellate Court.—Judges.—Election.—Amendment of Law.—Section 2 of the act of January 28, 1897 (Acts 1897, p. 10), fixing the term of office of the judges of the Appellate Court at four years, cannot be construed with section 3 of the act extending the period of existence of the court, which by law was to expire March 1, 1897, ' to four yehrs from January 1, 1897, so as -to have the retroactive and incidental effect of causing the judges who had been elected at ■' the preceding general election to have been chosen for the term of ' four years, pp. 689, 690.</p>