Volume 163 — Indiana Reports

<p>Appeal and Error. — Joint Assignment. — Where a complaint is in three paragraphs, and the answer thereto is in seven paragraphs, the first five of which are addressed exclusively to the second and third paragraphs of complaint, and the sixth is addressed exclusively to the first paragraph thereof, and a several demurrer is filed to each of such paragraphs, and one of the errors assigned is that “the court erred in overruling the demurrer of appellant to the 1st, 2d, 3d, 4th, 5th and 6th paragraphs of answer,” the assignment is joint, and if any one of such answers is good no error is presented, pp. 5, 6.</p> <p>Landlord and Tenant. — Holding Over. — Special Findings. — Burden of Proof. — Where one paragraph of complaint is for recovery of real property under §7106 Burns 1901, and §5 of the same act (§7092 Burns 1901) provides “ if a tenant refuse or neglect to pay rent when due, ten days’ notice to quit shall determine the lease, * ® * unless such rent he paid at the expration of said ten days,” and the special finding fails to show either (1) that rent was due at the time of giving the notice, or (2) that such rent was not paid within the ten days, the plaintiff must fail, the burden being on the plaintiff to prove such facts affirmatively. p. 8.</p> <p>New Trial as oe Bight. — Where the first paragraph of complaint was for possession of real property by landlord against tenant, under §7106 Burns 1901, the second was in ejectment, and the third to quiet title, a new trial as of right is not demandable, since such new trial can not be demanded as to the first paragraph, the judgment being rendered upon the entire complaint, p. 9.</p>

<p>Appeal and Ebbob. — Receiving Money on Judgment. — Dismissal.—Where the appellant accepts payment of the judgment appealed from, even though done for the accommodation of the appellee and with an agreement that such acceptance shall not affect its rights on appeal, a motion to dismiss will be sustained.</p>

From the Hendricks Circuit Court; T. J. Cofer, Judge. Action by Mary E. McCurdy against Julia A. Towles and others to set aside the will of Elijah M. Tinder, deceased. From a judgment for plaintiff, two defendants appeal.

<p>Municipal Cobpobations.— Widening Sidewalks. — Complaint by Property Owner for Injunction. — Sufficiency.—"Where a city, by resolution, permits property owners to widen their lawns, thereby reducing the width of the street, and a complainant for an injunction shows in his complaint that he is not the owner of any property situate within the half block in which the defendant citizens are threatening to widen such lawns, and fails to show that such widening injures his ingress or egress or other enjoyment of his property, or that the widening of the lawn will injure the roadway or be an obstruction, or that the public would suffer thereby, such complaint is fatally defective, even though it shows that complainant will have to widen his lawn at great expense. pp. 19, 20.</p> <p>Pleading. — Demurrer to Answer Carried Bach to Complaint. — Where the complaint is fatally defective, a demurrer to the answer will be carried back and sustained to the complaint, p. 20.</p>

Erom the Allen .Circuit Court; Edward O'Rourke, Judge. Claim filed by August Scheie against Henry Wagner, as administrator “of the estate of Claude E. Erne, deceased. Erom a judgment denying the claim, claimant appeals. Transferred from Appelate Court under §1337u Burns 1901.

<p>From Blackford Circuit Court; E. C. Vaughn, Judge.</p> <p>Action by Scelinda E. Wolverton against Abner D. Wolverton. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

Erom Henry Circuit Court; W. O. Barnard, Judge. Petition by Ambert W. Shelley and others for location of public highway was filed before board of county commissioners, where the Lake Erie.& Western Eailroad Company and othez’s remonstrated for damages and on the ground that same was not of public utility. It was appealed from there to circuit court.

<p>Natural Gas. — Judicial Notice. — Mandamus.—On mandamus to compel a gas company to sink wells in territory controlled by the company to obtain gas for heating purposes, the Supreme Court will take judicial notice of the matter of common knowledge that gas no longer exists in such territory sufficient for heating purposes, p. 51.</p> <p>Same. — Dismissal of Appeal. — When the question presented on appeal becomes of no practical importance, the appeal will be dismissed, p. 51.</p> <p>Same.— Useless Act. — A court will not compel a party to do a useless act. p. 51.</p>

From Elkhart Circuit Court; J. D.Ferrall, Judge. Action by Mary Bertram against the American Mutual Life Insurance Company of Elkhart, Indiana. From a judgment in favor of the plaintiff, the defendant appealed, and the plaintiff assigned cross-errors. Judgment was reversed on cross-error as to amount of recovery, and the court was directed to restate its second conclusion of law and render judgment for appellee. Transferred from Appellate Court under §1337u Burns 1901.

<p>Pleading. — Answer.—Demurrer.—Where, in an action for the price of a commodity, the complaint and exhibit filed therewith disclosed that the plaintiff was thereunder entitled to recover $1,206.97, exclusive of interest, and the answer did not attempt tobar a recovery for any sum less than $1,264.30, thereby substantially admitting that plaintiff was entitled to recover that amount of the claim, a demurrer to the answer was properly sustained. Such an answer makes no pretense of avoiding anything demanded by the complaint.</p>

From DeKalb Circuit Court; W. M. Brown, Special Judge. Action by diaries Moss and others against the Waterloo Water Company and .others for an injunction. From ¡a decree for defendants, plaintiffs appeal.

<p>Erom Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Prosecution by the State of Indiana against Joseph Chenoweth for involuntary manslaughter 'for permitting his infant child to die without medical attention, Erom a judgment on a verdict of acquittal directed by the court for failure of evidence, the State appeals.</p>

From Jay Circuit Court; J. M. Smith, Judge. Action by Joseph Lay and others for the establishment of a ditch in which George ~W. Turner and others file a remonstrance. From a judgment for petitioners establishing the ditch, remonstrants appeal.

From Greene Circuit Court; O. B. Harris, Judge. Action by Horatio Hunt against the Illinois Central Railroad Company. General verdict for plaintiff for $200, together with answers to interrogatories. Motion hy appellee for judgment non obstante veredicto sustained. Plaintiff appeals.

From Superior Court of Marion County (Ho. 61,848); J. M. Leathers, Judge. Action by George W. Bainaka against Frank M. Tomlinson to foreclose a lien in favor of himself and Horace B. Makepeace for the construction of a partition fence. From a decree of foreclosure the defendant appeals.

From Jennings Circuit Court; A. G. Smith, Special Judge. Action by tbe city of Seymour against the Seymour Water Company and others, for the rescission of a contract. From a decree for plaintiff, defendants appeal,

From Boone Circuit Court; S. JR. Artman, Judge. Action by the city of Lebanon against Fred Wysong to recover a penalty for tbe violation of a city ordinance fixing a license fee of $250 on any person keeping and operating a pool or billiard table for gain. From a judgment in favor of said city for $5, tbe defendant appeals.

From Clark Circuit Court; J. K. Marsh, Judge. Action by McCallin Green against tbe American Car & Foundry Company. General verdict for plaintiff for $525, together with answers to interrogatories. Defendant’s motion for judgment non obstante veredicto sustained. Plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.

<p>Landlord and Tenant.— Gas and Oil Lease. — Where a gas and oil lease contract was for such period of time as the lessee should pay the lessor a stipulated sum of money annually, or as much longer as oil or gas should be found in profitable quantities, the acceptance in advance by the lessor of the annual payment, as specified in the contract of lease, was a waiver of performance in developing the property for that year. pp. 147, 148.</p> <p>Same. — Development of Property. — If a gas lease is for such time as the lessee shall pay a specified annual sum to the lessor in advance, or until gas shall be found in paying quantities, and the lessor refuses at the beginning of the year to accept the payment, then the lessor is bound to develop the premises within a reasonable time. pp. 148, 149.</p> <p>Quieting Title. — Gas and Oil Lease. — Where a gas and oil lease provides that the lessee may pay lessor a specified sum annually in advance, or until gas shall be found in paying quantities, and the lessor refuses to accept such annual payment, and declares the lease forfeited, the lessor can not maintain an action to quiet his title for lack of diligence on the part of the lessee in failing to begin such development proceedings. p. 149.</p> <p>Landlord and Tenant. — Lease.—Consideration.—Acceptance.—Waiver.— Where a gas lease provides for an annual payment of a certain consideration, and the lessor accepts such annual payment from the lessee from year to year, the lessor must be deemed to have consented to the lessee’s delay or default in beginning to operate in the development of the property for such year. p. 149.</p>

<p>Constitution ax, Law. — Officers.—Extension of Term. — The act of 1903 (Acts 1903, p. 24) is invalid as being in conflict with §2, article 6, of the state Constitution providing that “there shall be elected, in each county, by the voters thereof, at the time of holding general elections, a .clerk of the circuit court, auditor, recorder, treasurer, sheriff, coroner and surveyor. The clerk, auditor and recorder shall continue in office four years, and no person shall be eligible to the office of clerk, recorder or auditor more than eight years in any period of twelve years. The treasurer, sheriff, coroner and surveyor shall continue in office two years; and no person shall be eligible to the office of treasurer or sheriff more than four years in any period of six years,” and with §14, article 2, of the Constitution providing that “all general elections shall be held on the first Tuesday after the first Monday in November,” for the reason that such constitutional provisions are mandatory, and biennial elections must be held for the offices named, the act in question postponing the election as to some of such officers for two years, pp. 160, 161.</p> <p>Same. — The act of 1903 (Acts 1903, p. 24) is invalid for the reason that it expressly extends the term of office of treasurer in many counties beyond the constitutional limit of two years, and in this case continues the treasurer in office “more than four years in a period of six years.” p. 161.</p> <p>Same. — The act of 1903 (Acts 1903, p. 24) is in violation of §3, article 15, of the Constitution, which provides that “whenever it is provided in this Constitution or in any law which may hereafter be passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified,” since such provision was intended to prevent vacancies in office, and can not be construed to authorize the legislature unnecessarily to postpone the election of a successor to such office. p. 162.</p> <p>Constitutional Law. — The act of 1903 (Acts 1903, p. 24) is invalid for the reason that if, authorizes incumbents to hold who are ineligible by reason of the constitutional provision (article % §6,) that “no person shall be eligible to the office of treasurer or sheriff more than four years in any period of six,” since such provision applies immediately upon the expiration of such period, unless in case of vacancy, death, removal, failure of successor to qualify or failure to elect, and can not apply where an election is unnecessarily postponed by the legislature, p. 163.</p> <p>Mandamus. — To Compel Name Certified to be Placed on Ballot. — "Where the county chairman of a party refuses in violation of §6215 Burns 1901, Acts 1889, p. 167, §18, to certify the name of a candidate, legally nominated by said party, to be placed upon the official ballot, he may be compelled by mandate to perform such duty. pp. 164, 165.</p>

From Blackford Circuit Court; JE. G. Vaughn, Judge. Prosecution by the State of Indiana against Joshua Bailey for the violation of .§7510 Burns 1901. From a judgment entered on a verdict convicting defendant and assessing his fine at $35, he appeals.

From Superior Court of Madison County; II. C. Ryan, Judge. Action by Isaiah Howard and wife against the Consumers Gas Trust Company for the cancelation of a gas and oil lease and to quiet title. From a decree for plaintiffs, the defendant appeals. Transferred from Appellate Court under §1337u Burns 1901,

<p>Landlord and Tenant. — Gas and Oil Lease. — Quieting Title. — Where in a complaint by a landlord to quiet his title as against a gas and oil lease, the lessee answered that by a contract such lessee was to hold the premises six months with exclusive privilege of drilling for gas and oil and as much longer as gas and oil were found in marketable quantities, or pay $1 per acre until the completion of a well, and such landlord accepted such $1 per acre per annum for five years, and not until ten days prior to the 'expiration of the sixth year did such landlord notify such lessee of his intention to determine the lease, such answer is good, since forfeitures are abhorred by the law, and the notice given to the lessee was unfair. Consumers Gas Trust Co. v. Littler, 162 Ind. 320, followed.</p>

Original action by Moses Fowler Chase against Joseph M. Rabb, as judge of the Benton Circuit Court, for a writ of mandate to compel him to settle and sign a bill of exceptions in the case of Frederick S. Chase against Moses Fowler Chase. Afterward the transcript and an assignment of errors were filed on appeal in said case, and on motion the two cases were consolidated. Motion to dismiss both the original action and the transcript and assignment of errors.

From Madison Circuit Court; .7. F. McClure, Judge. Action by tbe Consumers Gas Trust Company against the Crystal Window Glass Company and others for an injunction. Decree for defendants. Transferred from the Appellate Court under §1337u Burns 1901.

From Laporte Circuit Court; W. F. Higgins, Special Judge. Action by Bennie Turner, by his next friend, Jay Turner, against the city of South Bend., for damages for personal injuries. From a judgment in the sum of $10,000, rendered on a verdict, the defendant appeals. Transferred from Appellate Court under §1337u Burns 1901.

10,447); H. G. Allen, Judge. Action by the State of Indiana, ex rel. Romus F. Stuart and Romus F. Stuart, in his individual capacity, against Sterling R. Holt and others on his official bond as treasurer of Marion county. Decree for defendants and plaintiffs appeal to the Appellate Court. From a judgment of the Appellate Court, affirming the decree of the court below, plaintiffs appeal to the Supreme Court.

Erom Delaware Circuit Court; J. G. Leffler, Judge. Action by Edward' Tubey against James Boyce and others to enforce a sewer construction lien. Plaintiff dismissed as to all except James Boyce. Erom a decree in favor of the plaintiff for $802.69 and the foreclosure of his lien, the defendant appeals.

From St. Joseph Circuit Court; Lucius Hubbard, Judge. Action by the City National Bank of Goshen against the Goshen Woolen Mills Company and others. From a decree in favor of plaintiff against said company and Edmund R. and James L. Kerstetter, and refusing to cancel an alleged fraudulent trust deed preferring certain other creditors, the plaintiff appeals.

From Allep Circuit Court; M. O’Rourke, Judge. Action by Hugh Gr. Keegan, trustee in bankruptcy of tbe J. E. Scbell Loan & Investment Company, against tbe Hamilton Rational Bank, to recover $16,000, as an alleged preference. Judgment for defendant and the plaintiff appeals.

From Noble- Circuit Court; Anthony Deahl, Special Judge. Petition for the establishment of a ditch by John N. Strayer and others before the board of commissioners of Noble county. Henry L. Taylor and others filed a remonstrance. From a judgment of the circuit court dismissing the petition and vacating the judgment of the board establishing the ditch, the petitioners appeal.

Erom Tipton Circuit Court; J. F. Elliott, Judge. Action by Jobn Tobin and another against Sabrina Tobin and others to have declared void the will of William Tobin, deceased, and the probate thereof set aside. Erom a judgment for defendants, plaintiffs appeal.

From DeKalb Circuit Court; Frank M. Powers, Special Judge. Action by the State on the relation of Adron Beree, against 'William- Seely as trustee, for a writ of mandate compelling him to reestablish a school. From a judgment for defendant, plaintiff appeals.

<p>From Cass Circuit Court; T. F. Palmer, Special Judge.</p> <p>Action by George ~W. Ligbtheiser against the Pittsburgh, Cincinnati, Chicago & St. Louis Eailway Company. From a judgment on a verdict in favor of plaintiff for $6,500, the defendant appeals.</p>

From Huntington Circuit Court; J. C. Branyan, Judge. Action by John Lusch against the city of Huntington for damages for personal injuries and death of his horse. From a judgment on a verdict for $400, the defendant appealed to the Appellate Court. From a judgment of the Appellate Court (33 Ind. App. 476) defendant files his petition for a transfer to the Supreme Court under subdivision 2, §1337j Burns 1901.

From Allen Circuit Court; J2. O’Rourke, Judge. Action for an injunction and damages by Henry W. Mordhurst against the Ft. Wayne & Southwestern Traction Company. From a decree for defendant, the plaintiff appeals.

From Dearborn Circuit Court; N. Action by tbe town of Greendale against Calvin Suit and others. Decree for defendants and plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.

Erom Delaware Circuit Court; J. G. Leffler, Judge. Action by the Chicago, Indiana & Eastern Railway Company for the condemnation of a right of way. To the award of the appraisers the Wysor Land Company filed exceptions. From a judgment for such exceptor, on a verdict of a jury, the railway company appeals. Transferred from Appellate Court under §1337u Burns 1901.

From Jay Circuit Court; J. M. Smith, Judge. Action by John W. Smith against Charles F. Knowlton to foreclose a mechanic’s lien. From a decree for plaintiff, the defendant appeals. Transferred from Appellate Court under §1337u Burns 1901.

From Warrick Circuit Court; K. M. Swan, Judge. Action by Annie Daniels against Ben J. Nurrenbern for damages for wrongful replevy of goods, and for personal injuries. From a judgment on a verdict for $250 in favor of plaintiff, defendant appeals. Transferred from tbe Appellate Court under §1337u Burns 1901.

Erom Boone Circuit Court; Isaac M. Kelsey, Special Judge. Action by the Citizens Loan & Trust Company as administrator, with the will annexed, of the estate of David A. Caldwell, deceased, against William Partner and ten others for a construction of said will. Erom the construction given, William Partner appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Fountain Circuit Court; G. Y. McAdams, Special Judge. Claim by Mary A. Boord against Allen Boord and another as executors of the will of Samuel Boord, deceased. Judgment for defendants. Plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Clinton Circuit Court; J. F. Neal, Special Judge. Action by Anna Bradley as special administratrix of the estate of Frank Bradley, deceased, against David A. Coulter and Alexander B. Given as executors of the will of Hiram H. Bradley, deceased. From a judgment fof plaintiff, the defendants appeal. Transferred from the Appellate Court under subdivision one, §1337j Burns 1901.

From Monroe Circuit Court; J. B. Wilson, Judge. Action by' tbe State of Indiana, on relation of Julia S. Eakin, against Frank J. Dunn, as mayor of Bloomington, and the common council of said city, for a writ of mandate to compel them to remove an obstruction to an alley. Judgment for plaintiff, and defendants appeal.

From Delaware Circuit Court; J. G. Leffler, Judge.’ Action by Jesse F. Reavis and wife, Mary J. Reavis, against the Farmers Insurance Association of Madison County for damages for loss by fire, covered by a policy of insurance. From a judgment on a general verdict of a jury for $659.21, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

Erom Miami Circuit Court; J. T. Cox, Judge. Action by John Christman against Mauribe S. Howe and Warren E. Speicher for an injunction. Erom a decree for defendants, the plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.

<p>From Elkhart Circuit Court; J. D. Ferrall, Judge.</p> <p>Action by Claude Lee against York School Township. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.</p>

From Wells Circuit Court; F. G. Vaughn, Judge. Action by Thomas Carlin, Robert L. Carlin and Patrick J. Considine against Thomas McDonald. From a judgment for plaintiffs on their complaint and against defendant on his cross-complaint, defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Vanderburgh Circuit Court; L. O. Hasch, Judge. Prosecution by the State of Indiana against Levi Meyers for riotous conspiracy. From a judgment of conviction rendered upon a verdict of guilty, the defendant appeals.

From Clinton Circuit Court; Joseph Claybaugh,ZvAg%. Action by William Erdel against the Terre Haute & Logansport Railway Company for repairing a fence along its right of way, and attorney’s fees. From a judgment in favor of plaintiff for $57.15, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Superior Court of Marion County (63,073); Vinson Carter, Judge. Action by Maggie M. Foster, by her next friend, against the Bemis Indianapolis Bag Company for damages for personal injuries. From a judgment for defendant on a motion for judgment non obstante veredicto, the plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901.

From Knox Circuit Court; O. H. Cobb, Judge. Action by William E. Peek & Co., a corporation, against Hartwell Brothers, a corporation. From a judgment for plaintiff, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

<p>Carriers. — Personal Injuries. — Complaint.—Sufficiency.—Where a complaint by a passenger against a carrier charges that such carrier negligently ran its par at a high and dangerous rate of speed into one of its switches, thereby derailing its coach and injuring such passenger, it is sufficient, since in such case general averments of negligence are sufficient. pp. 363, 36,4.</p> <p>Negligence. — Proximate Cause. — Where a complaint alleges that by reason of the carrier running its coach at a high and dangerous rate of speed into one of its switches, thereby derailing such coach, inflicting personal injuries on such passenger plaintiff, it is sufficiently shown that the proximate cause of such injury was the negligent running of such coach at such speed, p. 364.</p> <p>Negligence. — Proximate Cause. — The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation, and those merely incidental or instruments of a controlling agency are not proximate though they may be nearer in time to the result, pp. 364, 365.</p> <p>Pleading. — Complaint.—Charging that Servant was Within Scope of Employment. — Where a complaint by a passenger against a carrier charges “that the defendant, through and by its servant in charge of said car, negligently ran said car,” etc., the necessary implication is that such servant was acting within the scope of his employment, and is sufficient.' p. 365.</p> <p>Damages. — Excessive.—Where the verdict of the jury is not so evidently erroneous and extravagant as to lead to the necessary conclusion that such jury were subject to an improper influence, it will not be interfered with as excessive, p. 366.</p> <p>Trial. — Instruction as to Financial Condition of Plaintiff. — An instruction asked by a carrier, in an action by a passenger for damages for personal injuries, containing the statement that “ this rule does not depend in any way upon the plaintiff’s financial condition, or upon his desire to earn money,” is properly refused, as in such-action it is improper for the court to comment upon such passenger’s estate or financial condition. pp. 366, 367.</p> <p>Same. — Instructions Asked Covered by Those Given.- — -Where instructions asked by a party are covered by those given by the court, it is proper for the court to refuse those asked, p. 368.</p> <p>Same. — Injury to Passenger. — Burden of Proof After Injury Shown. — Bes ipsa Loquitur. — Where it is shown, in an action by a passenger against a carrier, that such passenger was injured, it is incumbent upon such carrier to produce evidence to excuse itself, negligence of the carrier being presumed from such injury, pp. 368, 369.</p> <p>Same.- — Instruction on “Burden of Proof.” — -Where the court instructs the jury that if the evidence upon any question was evenly balanced, the party having the burden must fail, and in another instruction tells them that if “ all other things were exactly equal in all respects, the witnesses of equal intelligence and credibility, having equal opportunities of knowledge, testifying with equal candor, intelligence and | fairness, the weight of the evidence under such circumstances should be considered to be on the side having the greater number of witnesses,” and further instructs that the weight does not depend upon the number of witnesses, but upon all the evidence in the case, while containing conditions that could hardly be supposed to exist, still such instruction could do no harm to either party, pp. 370, 371.</p> <p>Same. — Befusal to Strike Out Evidence. — The refusal to strike out from plaintiff’s testimony the words “they were going so fast” is not reversible error, p. 371.</p> <p>Same. — Aggravation of Injuries. — The testimony of a physician that the plaintiff’s injuries would be aggravated by riding on a locomotive was not harmful to defendant, when the court told the jury that the plaintiff could recover nothing on account of the aggravation of his injury by any act or neglect of his own. p. 371.</p> <p>Evidence. — Mxprmions of Pain. — Expressions of pain and suffering are competent evidence in a personal injury case, and it is not necessary that the exact language be used. pp. 871, 872..</p>

<p>From Howard Superior Court; B. F. Harness, Judge.</p> <p>Action by John A. Hardebeck against William H. Kendall. From a judgment for plaintiff, the,defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.</p>

From Huntington. Circuit Court; J. C. Branyan, Judge. Prosecution by the State of Indiana against William Larkin for assault and battery with intent to commit murder. From a judgment of conviction rendered upon the verdict of a jury and a sentence of imprisonment, defendant appeals.

From Superior Court of Vanderburgh County; J. If. Foster, Judge. Action by Ida A. Norcross against the Penn Mutual Life 'Insurance Company. From a judgment for plaintiff on verdict for f5,335.83, defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Boone Circuit Court; Samuel B. Artman, Judge. Jonathan J. Moore, as administrator of the estate of Willis E. Moore, deceased, filed his report in said estate, to which Robert J. Ferguson and others filed exceptions. From an order denying certain items in favor of the administrator, he appeals in his individual and fiduciary capacity. Transferred from the Appellate Court under §l337u Burns' 1901.

From Henry Circuit Court; John M. Morris, Judge. Action by Henry Fatic against Isaac Myer for damages for trespass in cutting a locust tree. From a judgment on a verdict for $17, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Marion Circuit Court (9,249); II. C. Allen, Judge. Action by tbe State of Indiana, ex rel. board of commissioners of tbe county of Hamilton against Albert R. Tucker and others, sureties on his official bond, for money due such county. From a judgment for plaintiff, defendants appeal.

Erom Wabash Circuit Court; FI. B.. Shively, Judge. Action by Christian Clupper against Lewis Clupper as administrator of the estate of George Clupper, deceased, and Charles E. Stewart as sheriff of Wabash county for an. injunction. From a decree for plaintiff, defendant Clupper appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Tipton Circuit Court; W. W. Mount, Judge. Action by Henry C. Sellers as trustee in bankruptcy of Eufus Laymon against tbe firm of Hayes & Hayes and the Farmers Bank of Frankfort. From a decree for defendants, the plaintiff appeals.

From Ohio Circuit Court; N. S. Givan, Judge. Action by Euth E. Barricklow against Stephen A. Stewart, as executor of the will of Presley Gregg, deceased, and others to set aside such will. From a judgment for defendants, plaintiff appeals.

<p>From Wabash Circuit Court; II. B. Shively, Judge.</p> <p>Action by Carl Lang against Jacob Boos. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.</p>

From St. Joseph Circuit Court; W. A. Funk, Judge. Action by Agnes M. Phillips, by her next friend, against the city of Michigan City for damages for personal injuries. From a judgment of the Appellate Court affirming a judgment for the plaintiff, the defendant appeals to this court under subdivision 3, §1337j Burns 1901.

Erom. Ohio Circuit Court; George E. Downey, Judge. Action -by James Gillespie against Harry Rump, as Sheriff of’ Ohio county, for a writ of habeas corpus. Erom a judgment denying the writ, the plaintiff appeals.

From Orange Circuit Court; Thomas B. BusJcirk, Judge. Action by Charles McCarrell against tbe Southern Indiana Railway Company for damages for personal injuries. From a judgment for plaintiff rendered on a verdict for $3,500, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Daviess Circuit Court; H. Q. Houghton, Judge. Action by John Daily as county assessor against the Washington National Bank for an inspection of its records for the purpose of assessing omitted property. From a decree for plaintiff, defendant appeals.

From Miami Circuit Court; J. N. Tillett, Judge. Jacob S. Lavengood and others filed their petition to contest an election for the establishment of a free gravel road. From a judgment in their favor entered on the verdict of a jury, John A. Strebin and others appeal.

From Dearborn Circuit Court; William 8. Holman, Special Judge. Action by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against Robert J. Nowlin and wife for the condemnation of lands. From a j udgment for defendant refusing to permit plaintiff to litigate an award in favor of defendant for $9,000 damages after payment, the plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.

From Whitley Circuit Court; J. W. Adair, Judge. Prosecution hy the State of Indiana against Claude L. Coolman for murder. From a judgment on a verdict of murder in the second degree and a sentence of imprisonment for life, defendant appeals.

From Vanderburgh Circuit Court; L. O. Ilasch, Judge. Action by the city of Evansville against Fred L. Jordan to recover a penalty for the violation of an ordinance of such city requiring persons engaged in the sale of intoxicating liquors within four miles of the corporate limits of such city to take out a city license. From a judgment in favor of plaintiff for $50, defendant appeals.

From Boone Circuit Court; Samuel R. Artman, Judge. Action by Mary E. Johnson against the Indianapolis Street Railway Company for damages for personal injuries. From a judgment on a verdict for $3,125, the defendant appeals. Transferred from the Appellate Court-under §1337u Burns 1901.

Erom Vigo Circuit Court,; J. E. Piety, Judge. Action on contract for services by Don Wright and Sanders Arthur against the New Kanawha Coal & Mining Company. Erom a judgment for- plaintiffs, defendant appeals. Transferred from Appellate Court under §1337'u Burns 1901.

From Grant Superior Court; B. F. Harness, Judge. Action by George Fenstermaker against tbe Toledo, St. Louis & Western Railroad Company for damages for negligently setting fires on bis lands. From a judgment for tbe plaintiff on a verdict for $672, tbe defendant appeals. Transferred from tbe Appellate Court under §1337u Burns 1901.

From Miami Circuit Court; Joseph N. Tillett, Judge. Action by Mary H. Rennert against Milton Shirk, Elbert H. Shirk and Alice S. Edwards to quiet title. The defendants filed a cross-complaint to quiet title. From a judgment for cross-complainants quieting 'their title, the plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.

<p>Erom Elkhart Circuit Court; 'William, J. Davis, Special Judge.</p> <p>Prosecution by the State against John Griffiths'for larceny. Erom a judgment rendered on a verdict of guilty, the defendant appeals.</p>

<p>Erom Pulaski Circuit Court; T. F. Palmer, Judge.</p> <p>John E. Emmett and others, petitioned in the circuit court for the establishment of a drain, and Robert J. Geddis and others filed a remonstrance against the report of the drainage commissioners. Erom a decree of the circuit court modifying said report, Rich Grove Township and others appeal.</p>

From Fayette Circuit Court; F. S. Swift, J udge. Action Tby the State, on the relation of Benjamin F. Thiebaud, against the Connersville Natural Gas Company for a writ of mandate. From a judgment for defendant denying the writ, plaintiff appeals.

Erom Cass Circuit Court; John S. Lairy, Judge. Action by Thomas Collins against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for damages for personal injuries. Erom a judgment on a verdict for $11,880, the defendant appeals.

From Fountain Circuit Court; William Isham, Special Judge. Action by Keziah Tanner against Washington W. Y. Harbaugh for money had and received. From a judgfor plaintiff, defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901.

<p>From Cass Circuit Court; John S. hairy, Judge,</p> <p>Action by Henry N. Miller against William A. Julian. From a judgment for defendant, the plaintiff appeals. Transferred from the Appellate Court under §1337u Burns 1901.</p>

<p>From Vermillion Circuit Court; Joseph M. Babb, Special Judge.</p> <p>Claim by Hugh H. Conley and Paul H. Conley against John B. Fillinger, as administrator with the will annexed of George P. Daly, deceased, for legal services. From a judgment for plaintiffs for $500, the defendant appeals. Transferred from the Appellate Court under § 1337uBurns 1901.</p>

<p>From Grant Superior Court; B. F. Harness, Judge.</p> <p>‘ Action by Henry N. Parks against the Toledo, St. Louis & Western Railroad Company for damages for negligently setting fire to his woods. From a judgment on a verdict for $250, the defendant appeals. Transferred from the Appellate Court under §1337u B.urns 1901.</p>

<p>From Jackson Circuit Court; Joseph H. Shea, Special Judge.</p> <p>Action by Oliver D. Crum against tbe North Vernon Pump & Lumber Company and others. Prom a judgment for defendants, plaintiff appealed to the Appellate Court, where the judgment was affirmed (34 Ind. App. -). Appealed to Supreme Court under subdivision 3, §1337j Burns 1901.</p>

From Howard Superior Court; W. W. Mount, Special Judge. Action by William H. Voris against 'the Pittsburg Plate Glass Company and Mary Bindley to enforce a street improvement lien on a back-lying lot. From a decree for defendants, the plaintiff appeals.

From Yfarren Circuit Court ; Joseph M. Rabb, Judge. Action by George Keister, administrator of tbe estate of Charles R. Keister, deceased, against the Wabash Railroad Company for damages for the death of said intestate. From a judgment entered on a verdict for plaintiff for $3,000, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.

From Lawrence Circuit Court; James B. Wilson, Judge. Action by Andrew J. Fine against tbe Southern Indiana Railway Company for damages for personal injuries. From a judgment entered on a verdict for $1,250, the defendant appeals. Transferred from the Appellate Court under §1837u Burns 1901.

Erom Allen Circuit Court; Edward O’Rourke, Judge. Prosecution by tbe State of Indiana against Albert G. Stifel for obtaining money under false pretenses. Erom a judgment entered on a verdict of guilty, defendant appeals.

Prom Porter Circuit Court; W. C. McMahan, Judge. Action by Delphine Coyer as administratrix of the estate of Charles Coyer, deceased, against the Pennsylvania Company for damages for the death of her decedent. From a judgment for plaintiff rendered upon a verdict for $1,650, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901 (Acts 1901, p. 590, §1).

Erom Superior Court of Allen County; Edward' O’Rourke, Judge. Action by Henry E.’ Brudi and Gottlieb A. Brudi against tbe Mondamin Meadows Dairy Company for damages for breach of contract. Erom a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901 (Acts 1901, p. 590, §1).

From Miami Circuit Court; J. N. Tillett, Judge. Action by Daniel W. Yeagley against the German-American Insurance Company for loss on a fire insurance policy. Erom a judgment entered on a verdict for plaintiff, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901 (Acts 1901, p. 590, §1).

<p>Erom Lawrence Circuit Court; W. H. Martin, Judge.</p> <p>Action by James K. Hall against Mitchelltree School Township. Erom a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under subdivision 2, §1337j Burns 1901.</p>

<p>Erom Bartholomew Circuit Court; F. T. Hord, Judge.</p> <p>Action by William D. Sager against Eldridge L. Mc-Kinster. From a judgment for plaintiff, defendant appeals.</p>

From Orange Circuit Court; T. B. Buskirk, Judge. Action by the French Lick Springs Hotel Company and others against George S. Gagnon and others for injunction. From an interlocutory decree for plaintiffs, defendants appeal.

<p>From Hendricks Circuit Court; Jere West, Special Judge.</p> <p>Action by John E. Vestal against Zimri E. Dougan and another. From 'a judgment for defendants, plaintiff appeals.</p>

Ffom Marion Circuit Court (11,045); H. G. Allen, Judge. Action by the State, on the relation of Romus F. Stuart, and Rom us F. Stuart, against William H. Schmidt and others. From a judgment for defendants, plaintiffs appealed to the Appellate Court, where the judgment was affirmed. Appealed from the Appellate Court under subdivision 3, § 1337j Burns 1901.

<p>From Boone Circuit Court; Samuel R. Artman, Judge.</p> <p>Action by the 'Noblesville Hydraulic Company against Adolphus L. Evans and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Superior Court of Madison county; Henry C. Ryan, Judge.</p> <p>Action by Thaddeus M. Moore against the Consumers Gas Trust Company. From a judgment for plaintiff, defendant appeals.</p>

From Daviess Circuit Court; H. Q. Houghton, Judge. Ex parte proceeding to require the Washington National Bank to permit John Daily, a county assessor, to examine certain hooks, papers, etc. From an order granting such examination said hank appeals.

Prom Tipton Circuit Court; Walter W. Mount, Judge. Action by Della Leonard against John Whetstone and wife. From a judgment for defendants, plaintiff appealed to the Appellate Court, where said judgment was affirmed. Appealed to this court under subdivision 3, §1337j Burns 1901.