Volume 27 — Indiana Appellate Court Reports

From Jay Circuit Court; J. M. Smith, Judge. Aetiou by Preston Orr to enjoin the Redkey Citizens Natural Gas and Fuel Company from disconnecting plaintiff’s service-pipes. From a judgment for plaintiff, defendants appeal.

<p>From LaGrange Circuit Court; M. D. Wilson, Judge.</p> <p>Action by Sarah A. Clark and another against Isaac Horner and others. Judgment for plaintiffs. Two of' the defendants appeal.</p>

<p>Contribution. — Subsequent Purchaser of Portion of Mortgaged Premises. — Each Grantee Assuming the Entire Mortgage Indebtedness. — The owner of a tract of land mortgaged the same to A for 810,000, and afterward conveyed a portion of the tract to B, who assumed the mortgage indebtedness, and at the same time conveyed the remaining portion of the tract to C, who also assumed the mortgage indebtedness. B subsequently conveyed by quitclaim deed to D his portion of said tract subject to said mortgage. There was a provision that the whole mortgage debt should become due on failure to pay any part of it when due. The mortgagor had executed interest notes for the mortgage indebtedness, and D, to protect himself from foreclosure of the mortgage on his portion of the tract of the mortgaged premises, paid the interest notes when due, and then brought suit to have himself subrogated to the rights of the mortgage as against C for the amount of the interest which he paid on said mortgage indebtedness, which he alleged should havp been paid by C. Held, that since B and C each assumed the entire mortgage debt, and each being primarily chargeable with the entire mortgage debt, there could be no contribution as between themselyes, and consequently there can be no right of contribution as between C and the grantee of B.</p>

<p>From Hamilton Circuit Court; Theo. P. Davis, Special Judge.</p> <p>Action by Elias Stanbrough against Harriett Stanbrough and others to recover real estate. From a judgment for defendants, plaintiff appeals.</p>

<p>Erom Benton. Circuit Court; 8. P. Thompson, Judge.</p> <p>Action by Lindsey Harrell against tbe Cleveland, Cincinnati, Chicago & St. Louis Railway Company for injuries received at a crossing. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From Vanderburgh. Superior Court; John II. Foster, Judge.</p> <p>Action by Mary E. Sullivan against the Prudential Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Finding.—Sufficiency of Evidence. — Conflicting Evidence. — The appellate tribunal will not disturb a finding by the trial court where there is evidence from which the facts found might have been fairly drawn, p. 44.</p> <p>Fraud. — Prompt Return of Property. — Question of Fact. — Whether an offer to return property, when one seeks to rescind a contract on account of fraud, was made promptly after discovery of the fraud, must depend to a great extent upon the circumstances, conditions and surroundings of the parties, and is a question of fact. p. 44-</p> <p>Appeal and Error.— Presumption. — Record.—Instructions. —Tendered Before Argument.— Where the record fails to show that instructions were tendered to the court before commencement of the argument, the appellate tribunal will not consider the question of refusal to give instructions, since it will be presumed that they were not tendered in time. pp. 44, 4^-</p>

<p>Insurance. — Right to Sue Insurance Corporation. — Attorney-General. — Personal Individual Claim. — Under the acts of 1899, p. 30, enacting that no order, judgment or decree * * * interfering with the business or any insurance corporation * * * organized and doing business under the provisions of this act shall be made or granted, except upon the application of the Attorney-General, an individual is not denied the right to enforce his personal claim against an insurance company for money paid to the company as a premium, and to rescind his contract of insurance and his vice-counselor’s contract, which policy and written agreement the insured returned to the company and demanded a rescission thereof, pp. 18-50.</p> <p>Same. — Mutual Company. — Special Contract.- — A contract of a mutual life insurance company appointing a member thereof as a vice-counselor of such company, with rights to participate in a special renewal commission dividend, in consideration of his favorable influence, is not void for want of consideration, since the agreement of a member of a mutual company to use his favorable influence in behalf of the company amounts to more than the law exacts of him as a mere member, pp. SO, 51.</p> <p>Insurance.— Vice-Counselor’s Contract. —Recovery of Premium.— Where the insured has paid the premium for the first year and received his policy of insurance and also a special vice-counselor’s contract entitling him to participate in renewal dividends to be paid from the expense fund, he cannot after he has received the benefit of the insurance for a year return the policy and contract and recover the premium paid on the ground that the special contract is not enforceable, although such contract states that the premium paid is a part of its consideration, since the contract of insurance and the special contract are independent of each other, the contract of insurance being valid, pp. 51, 52.</p> <p>Same. — Reorganization of Company Under Act of 1899. — Under §§27, 28 of the act of February 10, 1899, relating to insurance companies, it is not intended that a new company should be formed, but that the old company, without changing its identity or affecting its corporate rights, might by complying with certain requirements be authorized to do business in accordance with the provisions of the act. pp. 52, 53.</p> <p>Same. — Reorganization of Company Without Consent of Member.— Recovery of Premium. — A member of a mutual insurance company is not entitled to recover a premium paid, on the ground that the company was reorganized without his consent, where the reorganization was under legislative authority, and the identity of the company and its rights and liabilities were not affected by such reorganization, p. 53.</p>

From Grant Circuit Court; J. L. Ouster, Judge. Action by Whitely Malleable Castings Company against Adelbert L. Tilden, and others, for work, labor and material. From a judgment for plaintiff, defendants appeal.

From Owen Circuit Court; G. W. Grubbs, Judge. Action by John C. Robinson, as trustee in bankruptcy of James E. Davis, against Henry Severin and others, to set aside judgment liens. From a judgment for plaintiff, defendants appeal.

Erom Bush Circuit Court; L. J. Kirkpatrick, Special Judge. Action by Arthur B. Irvin against the Bushville Cooperative Telephone Company to recover statutory penalty for refusal to furnish service. Erom a judgment in favor of plaintiff, defendant appeals.

<p>Erpm Pike Circuit Court; E. A. Ely, Judge.</p> <p>Action by James P. Rumble and others against Joseph D. Barker, trustee, and others. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>Pleading. — Cross-Complaint.—Sufficiency.— Quieting * Title.— Undue Influence. — Fraud.—Will.—Conveyance.—In a suit to quiet title to real estate, one of the defendants alleged in one of his paragraphs of cross-complaint that cross-complainant is the owner in fee simple of said property by virtue of the last will of the person from whom plaintiff obtained her conveyance of the property by deed; that said deed was made to plaintiff after the property it sought to convey had been devised to the cross-complainant; that said devisor and grantor was eighty-seven years of age and feeble in body and mind, and unlettered and easily influenced; that plaintiff, knowing of the devise to the cross-complainant, poisoned the devisor’s mind against the cross-complainant and induced the devisor to convey said property to plaintiff by repeated entreaties, and by active diligence concealed said conveyance until the devisor was helpless in body and mind ; that plaintiff paid nothing for said property, but procured it in the fraudulent manner aforesaid ; and the cross-complainant asks that the title of said property be quieted in him. Held, that the paragraph of cross-complaint states a cause of action.</p>

<p>Pleading. — Complaint.—Exhibits.—When In the Record. — Appeal.— In an action to foreclose a mortgage given to secure three promissory notes, a demurrer was sustained to one paragraph of the complaint and overruled as to the other. The n’otes and mortgage were made exhibits to the first paragraph and referred to by the letters A, B, C, and D. The notes and mortgage were made exhibits to the second paragraph of complaint and referred to by the letters E, F, G, and H. The second paragraph alleges that certain exhibits are filed with it. Those exhibits are found in the record and clearly identified as those named in the complaint. Held, that the exhibits E, F, G, and H filed with the second paragraph of complaint are in the record, pp. 79-81.</p> <p>Chattel Mortgage. — Time of Recording. — Execution Of. — Where a chattel mortgage was signed and acknowledged on January 25,1897, but was not delivered and recorded until August 4,1897, the mortgage was recorded within the ten days required by statute, since delivery is essential to the execution of a chattel mortgage, p. 81.</p>

<p>Erom Monroe Circuit Court; W. H. Martin> Judge.</p> <p>Proceeding by city of Bloomington to extend corporate boundaries. Erom a judgment in favor of Moses F. Dunn, a remonstrator, tbe city appeals.</p>

Erom Blackford Circuit Court; E. C. Vaughn, Judge. Orville K. Moore was prosecuted and acquitted on the charge of interfering with natural gas connections, and the State appeals.

From Elkhart Circuit Court; II. D. Wilson, Judge. Action by Mary M. Skelley against Jeremiah Yail and others to set aside conveyances of real estate. From a judgment against Jeremiah Yail and in favor of other defendants, personal representatives of Mary M. Skelley, since deceased, appeal.

<p>Negligence. — General and Special Verdict. — Conflict.—A complaint for personal injuries alleged that plaintiff was in attendance at a fair association and had paid the regular admission fee; that the association was conducting a horse-race on its race-track in the fairgrounds; that one of the race-horses, while its speed was being tested, left the race-track through an opening in the fence surrounding the track, and that plaintiff in attempting to get out of the way of the horse was violently thrown to the ground and trampled upon. The jury returned a general verdict for plaintiff, and found specially that plaintiff was injured “by trying to escape from a runaway horse,” that the accident and the running away of the horse were not caused by the negligence of any officer or employe of the association, and that plaintiff stepped over the back of a seat on which she was standing into a space between the benches, and, in so stepping, fell and received her injuries complained of. Held, that the special findings are not in irreconcilable conflict with the general verdict, pp. 93-96.</p> <p>Same. — Proximate Cause. — The proximate cause of an injury result, ing from a horse leaving the race-track through an opening left in the fence surrounding the track is not the running away of the horse, but the failure properly to inclose the race-track, p. 97.</p>

From Montgomery. Circuit Court; Jere West, Judge. Action by R. B. Hayes Martin against the Board of Commissioners of Montgomery County for services performed by direction of the Secretary of the County Board of Health. From a judgment for defendant, plaintiff appeals.

<p>Bills and Notes. — Consideration.—Gambling Device. — Under §2181 Burns 1894, prohibiting the keeping of gambling devices for the purpose of gaming, the vendor of a slot machine sold for gambling purposes cannot recover on a note given in payment for such machine.</p>

<p>Prostitution. — Fornication.—Sufficiency of Affidavit. — An affidavit for prostitution, charging defendant with having committed fornication for hire, is not bad for failure to set out the particular acts constituting the offense.</p>

<p>Appeal. — Failure to Rule on Demurrer. — Waiver.—A party who goes to trial without a ruling on a demurrer to a pleading is thereby precluded from raising the objection that the court’s failure to rule on it constituted a mistrial, p. 110.</p> <p>Executions.— Failure of Sheriff to Serve Execution. — When Harmless. — The failure of the sheriff to serve the execution on defendant before making levy is not prejudicial error, where it does not appear that, at the date of the issuance of the execution or of the sale, the defendant was ready to pay the judgment, or that he had other property which he would have designated, and which he is still ready to turn out upon the execution, pp. no, 111.</p> <p>Executions. — Sale of Beal Estate. — Failure of Sheriff to Take Possession. — Where the sheriff gave notice of the sale of real estate under execution, as required by statute, it was not essential that he should take actual possession of it in order to exercise his power to sell. p. 111.</p> <p>Exemptions. — Waiver.—Where the real estate of a judgment debtor was advertised for sale under an execution against him, he will not after sale be permitted to contend that he was not afforded an opportunity to claim his exemption, p. 112.</p> <p>Descent and Distribution. — Failure of Widower to Elect to Take Under Wife’s Will. — Where a wife’s will gave her husband full control of her real estate during his lifetime, with remainder to her children, and he did not elect to take under the will, a sale of one-third of the real estate under execution, to satisfy a judgment against him, was valid, since, under §2642 Burns 1894, by his failure to elect to take under the will, the one-third part vested absolutely in him. pp. 112-114.</p>

Erom Lawrence Circuit Court; W. H. Martin, Judge. Action by Minnie Eerguson, administratrix, against the Chicago, Indianapolis and Louisville Railway Company for the death of intestate. Erom a judgment for plaintiff, defendant appeals.

<p>From Allen Circuit Court; E. O'Rourke, Judge.</p> <p>Action by Elswortb S. Pettit against the Grand Rapids, etc., R. Co. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Wells Circuit Court; J. T. France, Special Judge.</p> <p>Action by Peoples B. & L. Assn, against John W. Markley and others to foreclose a mortgage. Prom a judgment for defendants, plaintiff appeals.</p>

From Tippecanoe Superior Court; W. DeWitt Wallace, Judge. Action by John Kinsley against the Cleveland, etc., R. Co., for damages for refusing to honor a ticket. From a judgment in favor of plaintiff, defendant appeals.

<p>Wills. — Husband and Wife. — Election by Husband. — Creditors.— Under the provision of §2642 Burns 1894, giving a widower one-third of the real estate of his deceased wife and providing that if the wife left a will such widower “may elect to take under the will instead of this or any other law of descents,” etc., a widower may elect to take under his wife’s will, although he is not a beneficiary of the will, and such election defeats the enforcement of claims by his creditors.</p>

From Wells Circuit Court; E. C. Vaughn, Judge. Application by John R. Gregg for a householder’s exemption from a judgment obtained against him by Louis A. Brickley. From a judgment denying the exemption, complainant appeals.

<p>Erom Blackford Circuit Court; E. C. Vaughn, Judge.</p> <p>Action by Sarah Gr. Allen and husband against the Indianapolis Oil Company to quiet title to real estate. Erom a judgment for defendant, plaintiffs appeal.</p>

From Adams Circuit Court; D. D. Heller, Judge. Action by Henry Biddle against the Wabash Railroad Company for injuries received at a railroad crossing. Erom a judgment for plaintiff, defendant appeals.

Prom Adams Circuit Court; D. D. Heller, Judge. Action against the Wabash Eailro-ad Company by Sebastian Miller. Erom a judgment in favor of plaintiff, defendant appeals. Transferred to the Supreme Court with recommendations to modify rule as to the admission of testimony of witness given at former trial.

Erom Knox Circuit Court; G. W. Shaw, Judge. Action by Baltimore and Ohio Southwestern Railway-Company against Anthony S. Adams for breach of contract to convey right of way. Erom a judgment for defendant, plaintiff appeals.

From Monroe Circuit Court; W. H. Martin> Judge. Action by Bennett Jacobs to enjoin Joseph S. Woodward as treasurer of Monroe county from collecting certain taxes assessed against him. From a judgment for plaintiff, defendant appeals.

Erom Eulton Circuit Court; A. O. Oapron, Judge. Suit by town of Rochester to enjoin'John Walters and others from constructing wooden building within fire limits in violation of ordinance. Erom a decree in favor of defendants, plaintiff appeals.

<p>Trial. — Findings.—Amendment after Judgment. — A trial court cannot amend its special finding of facts after rendition of judgment.</p>

Erom Jefferson Circuit Court; P. E. Bear, Judge. Action by George V. Cain, as guardian, against James I). Robertson and others, for tbe construction of a -will. Erom a judgment in favor of defendants, plaintiff appeals.

• Prom Monroe Circuit Court; W. H. Martin, Judge. Action by Sarah Spiers against William Whitesell and others, to set aside a deed from Whitesell to his codefendants, as fraudulent. Prom a judgment for defendants plaintiff appeals.

From Henry Circuit Court; W. O. BarnardJudge. Action by Loring A. Williams against the Board of Commissioners of Henry county for money expended by him as county clerk for postage. From a judgment in favor of defendant, plaintiff appeals.

Erom Madison Superior Court; II.. O. By an, Judge. Action by Lottie Penkéth against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company for injury at a railroad and street crossing. Erom a judgment for plaintiff, defendant appeals.

From Whitley Circuit Court; J. W. Adair, Judge. Action by John Hewitt and others against Elizabeth Mills and others. Erom a judgment for defendants, plaintiff alone prosecutes a vacation appeal.

From Boone Circuit Court; G. N. Bearner, Special Judge. Action by Emma G. Long against the Indiana Natural and Illuminating Gas Company for damages from fire resulting from high gas pressure. From a judgment for plaintiff, defendant appeals.

Erom Marion Superior Court; Vinson Garter, Judge. Action by diaries J. Gardner against William J. Holliday to recover damages caused by a runaway team. Erom a judgment for plaintiff, defendant appeals.

<p>Erom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Chicago, etc., R. Co. against Georg© Loer to acquire right of way. Erom a judgment for defendant, plaintiff appeals.</p>

Erom Marion Circuit Court; H. O. Allen, Judge. Petition for instructions by the Marion Trust Company, as receiver of tbe Washington Savings and Loan Association. Erom a decree adjudging the association insolvent and fixing the status of the holders of paid-up stock, Harriet A. Bingham, a stockholder of the association, appeals.

From Orange Circuit Court; H. D. Gibson, Special Judge. Action by Eli B. Stephenson against Charles Miller and others for the recovery of the purchase price of certain, cattle obtained _under false pretenses. . Erom a judgment for plaintiff, defendants appeal.

<p>Trial. — Special Finding. — Record.—Where what is termed a special finding of facts is not signed by the judge and the record contains no conclusions of law thereon, the finding will be treated as a general finding, p. 889.</p> <p>New Trial. — Grounds.—A ground in a motion for a new trial that “the finding and judgment of the court is excessive in amount,” presents no question where the action is on contract, p. 889.</p>

Erom Howard Circuit Court; W. W. Mount, Judge. Application by John R. Mason to sell intoxicating liquors. Erom a judgment of the circuit court affirming the order of the board of county commissioners refusing the license, the applicant appeals.

From Tipton Circuit Court; O. N. Pollard, Special Judge. Suit by Mary Essington to enjoin the Lake Erie & Western Railroad Company from obstructing a driveway under the railroad tracks. From a judgment in favor of plaintiff, defendant appeals.

From Jay Circuit Court; J. M. Smith, Judge. Action by John A. M. Adair against Caldwell C. Cartwright and another for injury to foundation of building. From a judgment for plaintiff, defendants appeal.

<p>From Marshall Circuit Court] A. G. Capron. Judge.</p> <p>Action by Edith Sutherlin against William Sutherlin for divorce. From a judgment for plaintiff, defendant appeals.</p>

<p>Contempt. — Injunction.—Special Judge. — Where a special judge was appointed under §119 Burns 1901 to try an injunction proceeding the case was finally disposed of within the meaning of said section when the final decree granting a perpetual injunction was rendered, arid such special judge had no power, without further appointment, to hear and determine a contempt proceeding for the violation of the injunction, since the violation of the injunction was an offense against the court, not the special judge.</p>

<p>Appeal and Error. — Denial of Application for Change of Venue.— Assignment of Error. — Railroads.—Right of Way. — The denial of an application for a change of venue in a proceeding for the appropriation of land for a railroad right of way cannot he questioned by an independent assignment of error on appeal, but must be stated as a ground in a motion for a new trial, p. 307.</p> <p>Same. — Conflicting Evidence. — The Appellate Court will not disturb a verdict on conflicting evidence, p. 308.</p> <p>Trial. — Instructions.—Refusal to Give. — Available error cannot be predicated upon the refusal of the court to give certain instructions, where the instructions, in so far as they were applicable, were included in other instructions given, p. 808.</p> <p>Railroads. — Appropriation of Land for Bight of Way. — Damages.— Evidence. — In a proceeding for the appropriation of farm land for a railroad right of way, evidence as to the value of the land for farming purposes with the railroad constructed thereon is admissible. pp. SOS, S09.</p>

<p>Erom Tipton Circuit Court; W. W. Mount, Judge.</p> <p>Action by Michael Holloran against Daniel Morman. Erom a judgment for defendant, plaintiff appeals.</p>

Erom Madison Superior Court; H. G. By an, Judge. Erom a judgment assessing damages to ETixon Winslow against the Chicago, Indiana and Eastern Bailway Company for lands appropriated for a right of way, the latter appeals.

<p>Appeal and Error. — Record.—Where in an appeal by plaintiff neither the pleadings nor the evidence is in the record, and the appellants’ attorneys assert that the action is to quiet title and for possession, and appellees’ attorneys contend that it is to quiet title only, and it appears that if the action is to quiet title, it is bound by the statute of limitation, the Appellate Court will not disturb the judgment of the trial court.</p>

Erom Warrick Circuit Court; P. M. Swam,, Judge. Action by Minnie M. Smith and others against Elvira H. Eels and others to> review a judgment of foreclosure. Erom a judgment on demurrer to complaint, plaintiff appeals.

<p>Building and Loan Associations.— Purchase of Stoch in Other Association. — Ultra Vires. — Where a building and loan association purchased stock in another building and loan association and held the same without question until the latter association went into voluntary liquidation, the purchase will not be held ultra vires and the transaction treated as a loan as against the stockholders of the association in liquidation.</p>

<p>Accident Insubance. — Gomplaint.—Intentional Injury. — An averment in a complaint on an accident insurance policy that the injury was inflicted unintentionally is not overcome by the statement that the person who caused the injury was in a state of intoxication to such an extent that he did not know that he was inflicting the injury. pp. 828, 829.</p> <p>Dbunkabds. — Responsibility.—Intent.—While drunkenness is no excuse for crime, the law recognizes, both in civil and criminal proceedings, that one may become so intoxicated as to be incapable of having an intention, p. 329.</p> <p>Accident Insubance. — Proofs.—Waiver.—Special Finding. — A finding upon which judgment was rendered for plaintiff in an action on an accident insurance policy is not defective because of the failure of the court to find that proofs were made prior to the bringing of the suit, where it was found that notice of the injury accompanied by the certificate of a physician was furnished, and that no further notice, certificates or proofs of said injury were requested or required from plaintiff on the part of the defendant, p. 880.</p> <p>Same.— Consideration for Issuance of Policy. — Payment.—Special Finding. — A finding in support of a judgment for plaintiff in an action on an accident insurance policy is not fatally defective because of failure to find that the policy was issued in consideration of any payment by plaintiff, where it appears from the record that payment was treated as an admitted fact. p. 380.</p> <p>Same. — Intentional Injury. — Drunkards.—Special Finding. — An accident insurance policy provided that benefits could not be recovered for ‘ ‘intentional injuries inflicted by th e insured or any other person. Plaintiff brought suit for benefits for an injury to his thumb caused by an. intoxicated person. The court found that the person wh o committed the assault “was intoxicated to such a degree that he did not know or realize the fact that he was assaulting or had assaulted the plaintiff, and did not know at the time he was doing so that he was biting or had bitten the plaintiff’s thumb,” etc. Held, that the finding was equivalent to a finding that the injury was committed unintentionally. pp. 330, 331.</p> <p>Accident Insurance. . — Intentional Injury. — Drunkards.—Evidence. —Special Finding. — A finding in an action on an accident insurance policy for benefits on account of injuries sustained by plaintiff from an assault by an alleged drunken man that the person who committed the assault was intoxicated to such a degree that he did not know that he was assaulting plaintiff is not sustained by the evidence, where it was shown that he knew what he was doing up until the time he committed the assault and that he washed the blood from his own face and said he did not want it to get out how he got the blood on his face. pp. 331-333.</p>

<p>From DeKalb Circuit Court; E. D. Hartman, Judge.</p> <p>Action by Sarah Collier against Margaret Till and husband for foreclosure of mortgage. From a judgment for plaintiff, defendant Margaret Till appeals.</p>

<p>Executors and Administrators. — Settlement of Estate. — Collateral Attack. — Guardian and Ward. — Plaintiff brought suit to recover money alleged to be due his ward under the provisions of a deed executed by the ward’s grandfather to defendant. The deed provided that upon the death of the grantor the grantee should “pay out to the legal heirs of the grantor, pro rata, the above sum oí $1,800 of purchase money without interest.” The complaint alleged that plaintiff's ward was one of the eight heirs,' and as such, was entitled to receive one-eighth of said suin. The evidence showed that the deceased grantor left surviving him four children and four grand-children; that after his death the heirs and plaintiff met and agreed upon the appointment of an administrator and agreed that the $1,800 should be paid to and distributed by such administrator to the heirs; that the administrator included said amount in his inventory, and paid it out to the heirs, except the amount found to be due plaintiff’s ward, which was paid to the clerk and received and receipted for by plaintiff, with a full knowledge of all the facts, and still retained by him. The court approved the final report of the administrator, and found especially the amount due plaintiff’s ward, and directed it paid into court. Held, that the approval of the administrator’s report amounted to an adjudication of plaintiff’s claim and could not be thus collaterally attacked.</p>

Erom Kosciusko Circuit Court; H. 8. Biggs, Judge. Action by Hannah Burris and Sarah Overlease against William W. Rohrer and others for the construction of the residuary clause of a will. Erom a judgment ordering the distribution of the residuary estate per stirpes, defendants appeal.

<p>Landlord and Tenant. — Farm, Lease. — Crops.—Ownership.—Conversion. — A farm lease provided that the tenant should pay a certain price per acre for rent of land not tillable, and for his services in cultivating the tillable land he was to receive two-thirds of the grain raised, his right to ownership to any portion thereof not to accrue until the grain was measured and the landowner’s part delivered and settlement made of the cash rent. Held, that such contract was lawful, and that the land owner may treat a sale of grain by tenant, before division and settlement, as a conversion and recover therefor from the purchaser.</p>

From Marion Superior Court; J. L. McMasters, Judge. Action by Solomon Meyer and others against Indiana Nat. Bank to recover amount of fraudulent check. From a judgment in favor of defendant, plaintiffs appeal.

<p>From Marion Circuit Court; H. C. Allen, Judge.</p> <p>Action, by Aun E. Wood against William I. Ripley for partition. From a judgment for defendant, plaintiff appeals.</p>

<p>Trusts. — Husband and Wife. — Purchase of Land with Wife’s Money. —A complaint alleging that a husband paid the wife’s money for the land and took the title in himself is not sufficient to establish a trust therein in favor of the heirs of the wife, it not being charged that the conveyance to him was without the wife’s consent, or that it was fraudulently made, or that it was in violation of any trust, or that there was any bona fide agreement that he should hold the land in trust for her. pp. 861-86/f.</p> <p>Same. — Pleading. — A complaint to enforce a trust in real estate, alleging that plaintiffs’ father “settled upon his children by his former wife all of his real and personal estate to be taken by them at his death,” pleads a conclusion, p. 865.</p> <p>Husband and Wipe. — Antenuptial Contracts. — Deeds.—Jointure.— Antenuptial agreements to the effect that the property each then held should be and remain the property of each respectively, free from any claim by the other, containing no words of conveyance or description of property, and nothing to indicate that they were intended to be deeds of conveyance, will not be held to be deeds of conveyance creating a jointure within the meaning of §8661, Bums 1894. p. 865.</p> <p>Appeal and Error. — Exception to Conclusions of Law. — No question is presented on appeal upon an exception to a conclusion of law where the exception was not taken at the time the conclusion of law was announced, pp. 865, 866.</p>

<p>Appeals. — Appellate Jurisdiction. — Section 6 of the act of March 12, 1901 (§1337f Burns 1901), denying appeals in all cases where the amount in controversy is within the jurisdiction of a justice of the peace, and the construction of a statute or matters of constitutional law are not involved, governs an appeal not perfected till April 27, 1901, though the appeal was granted March 8, 1901. pp. 367, 368.</p> <p>Same. — Dismissal.—Failure to File Brief. — Where it appears from the record that the Appellate Court has no jurisdiction of an appeal, such appeal will be dismissed, although the appellee has not complied with the rules of the Appellate Court in filing a brief in support of his motion, p. 368.</p>

.Erran Clay Circuit Court; 8. M. McGregor, Judge. Suit to quiet title to real estate by Edward S. Bonham, and others against Thomas J. Shannon and others. Erom a judgment for plaintiffs, defendants appeal.

<p>Erom Marion Superior Court; J. M. Leathers, Judge.</p> <p>Action by Tillie Myers, administratrix, against. Scofield, Shurmer & Teagle. Erom a, judgment for plaintiff, defendants appeal.</p>

Erom Delaware Circuit Court; George II. Koons, Judge. The board of commissioners of Eandolph county allowed only a part of a claim filed by Henry county for costs of trial on change of venue to the latter county. Erom a judgment of the circuit court allowing a larger amount, the board of commissioners of Eandolph county appeals.

<p>From Bartholomew Circuit Court; F. T. Hord, Judge.</p> <p>Action by United States, etc., Pub. Co. against, W. W. Mooney and others. From a judgment for plaintiff, defendants appeal.</p>

Erom Bartholomew Circuit Court; F. T. Ford, Judge. Action by John G. Schaeffer against Julius C. Rominger for trespass. Erom a judgment for plaintiff for one cent costs, plaintiff appeals.

From Pike Circuit Court; J. K. Marsh, Special Judge. Action by John B. Lloyd and others against George For-dice and others for partition. From a judgment for plaintiffs, defendants appeal.

Erom Hendricks Circuit Court; T. J. Gofer, Judge. Action by Martba Wood against Isaac N. Pearson and wife to recover balance of purchase money of real estate. Erom a judgment on demurrer to counterclaim, defendants appeal.

From Clay Circuit Court; 8. M. McGregor,- Judge. Suit by William F. Curryer, Secretary of the State Board of Registration and Examination, against Jacob B. Oliver to revoke the defendant’s license to practice medicine. From a judgment for defendant, plaintiff appeals.

From Cass Circuit Court; D. H. Chase, Judge. Action by Clinton L. Dilley against George W. Jameson and others to set aside a conveyance of real estate as fraudulent. From a judgment for plaintiff, defendants appeal.

From Blackford Circuit Court; W. H. Carroll, Special Judge. Petition by John P. McGeath, administrator, for the sale of real estate. From the action of the: court in sustaining demurrers to answers filed by Cora Bonham and others, and denying a motion to dismiss the petition, defendants, Cora Bonham and others, appeal.

From Grant Circuit Court; J. L. Custer, Special Judge. Action by Chicago, Indiana & Eastern Railway Company against Thomas C. Weeks to appropriate land for a right of way. From a judgment assessing defendant damages, plaintiff appeals.

<p>Erom Hendricks Circuit Court; T. J. Gofer, Judge.</p> <p>Action by Wm. T. Lucas against Levi A. Barnett on an attachment bond. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Criminal Law. — Misdemeanors.—Appeal.— Statute.— Repeal.— Section 1954 Bums 1901, in so far as it gave a right of appeal to a defendant convicted of a misdemeanor, is repealed by -§§7 and 8 of the act of 1901 (Acts 1901, p. 566), which prescribe that no appeals in prosecutions for misdemeanors shall thereafter be taken, except when the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute or rights guaranteed by the State or federal Constitution are involved. pp.</p> <p>Criminal Law. — Appeal, When Taken. — Under §1960 Burns 1901, an appeal by defendant in a criminal case is ‘ ‘taken” when the defendant serves a written notice upon the prosecuting attorney, p. Jplfl.</p> <p>Same. — Misdemeanor. —Appeal Taken Before the Act of 1901. — Section 7 of the act of 1901 (Acts 1901, p. 566), providing that “no appeal shall hereafter be taken * * * in any criminal case of misdemeanor,” etc., does not apply to an appeal that had been taken, though not perfected, under a preexisting law. pp. Jp/pS-JpOO.</p>

From Marion Circuit Court; H. O. Allen, Judge. Action by the Crescent Loan and Investment Company against the Marion Trust Company receiver of the Washington Savings and Loan- Association on a promissory note. From a judgment for plaintiff, defendant appeals.

Erom Tippecanoe Circuit Court; W. G. L. Taylor, Judge. Intervening petition by the Reynolds & Reynolds Company and others asking for the allowance as preferred claims the claims of petitioners against George J. Eaeock, receiver of the Spring-Emerson Stationery Company. Erom a judgment sustaining a demurrer to the petition, the petitioners appeal.

<p>Divorce. — Abandonment.— Failure to Support. — A wife is not entitled to a divorce on the ground of abandonment and failure of the husband to support his family during the two years of his desertion, where it appears from the evidence that the wife deserted the husband, or that the parties separated by mutual consent, and by mutual consent remained apart, neither making any effort at reconciliation, and the husband was never requested and never refused to make provision for his family, pp.</p> <p>Same. — Separation.—Cause.—To justify a wife in abandoning her husband and thereby render him guilty of desertion in a legal sense, the cause of her abandonment must be a sufficient ground for a divorce, p. Jfll.</p>

Erom ^Randolph Circuit Court; A. O. Marsh, Judge. Action by the North. Mercer Natural Gas Company against Duncan Smith and another to quiet title to- real estate. Erom a judgment in favor of defendants, plaintiff appeals.

From Wells Circuit Court; W. H. Carroll, Special Judge. Action by Mary S. Brandon against Ezra Y. Comstock and others to quiet title to certain real estate. From a judgment for plaintiff, defendants appeal.

<p>Master and Servant. — Action for Death of Employe. — Pleading.— A complaint against a cement company for the death of an employe charged that among the duties of deceased was the firing of expíosives used in blasting at defendant’s quarries; that defendant was rushing the work to the extent that it endangered the lives of its employes; that decedent was ordered by his superior to enter a tunnel without having waited a sufficient length of time after the lighting of the fuse, and as a result of the lingering of a defective fuse, and its subsequent explosion of a blast, decedent lost his life; that decedent had only been performing that kind of work since his employment by defendant, and had no knowledge of the length of time required for the explosion of such blasts. Held, that the complaint pleaded conclusions instead of facts, and was insufficient as against demurrer.</p>

<p>Fixtures. — When Personalty Acquires Nature of Realty. — There is no general rule or test for determining whether or not an article personal in nature has acquired the character of realty by being attached thereto. In each particular case regard is to be had to the chattel itself, the injury that would result from its removal, and the intention in placing it upon the premises with reference to use or ornament, p. 486.</p> <p>Mechanic’s Lien.— Fixtures.— Chandeliers. — Chandeliers put in a building by its owner with intention on his part that they should become a part of the realty are fixtures, so that the contractor who furnishes and puts them in may have a mechanic’s lien therefor. pp. 484-488.</p>

Erom Jay Circuit Court; J. M. Smith, Judge. John Armfield was. convicted of the charge of unlawfully diverting a stream of water from its natural course, and appeals.

<p>From Henry Circuit Court; W. O. Bmrnwrd, Judge.</p> <p>Action by John James, sheriff, against the Board of Commissioners of Henry County. Judgment for defendant. Plaintiff appeals.</p>

Erom Lake Circuit Court; J. H. Qillett, Judge. Action by Erank B. Felt, trustee for Anna S. Holt, intervening petitioner, against the East Chicago Iron and Steel Company and Murray Turner, receiver. Erom a judgment for defendants, plaintiff appeals.

<p>Carriers. — Presumption of Negligence. — The presumption of negligence which arises against a carrier when injury is suffered by one passively relying upon it to transport him to his destination does not exist where the voluntary movement of the passenger contributed to the injury, p. BOO.</p> <p>Same. — Icy Car Steps. — Injury to Passenger while Alighting from Car. — Plaintiff entered defendant’s suburban train from the rear platform of rear car. Such platform and the steps leading thereto were at the time covered with snow and ice, which fact was known to plaintiff. After a ride of six or seven minutes, plaintiff reached his destination, and, in endeavoring to alight from same platform, fell upon the icy steps and was injured. The conductor, as was his custom, stood at the front platform of the car to assist passengers on and off. Plaintiff had been a frequent passenger on the train, and was familiar with the custom. Held, that plaintiff was guilty of contributory negligence which precluded recovery. pp. 498-501.</p>

From Marion Circuit Court-; H. O. Allen, Judge. Action by Joseph Collier, administrator of the estate of Catherine Whellehan, deceased, against John R. Welch, administrator of the estate of Daniel Whellehan, deceased, for the deceased widow’s statutory allowance. From a judgment for plaintiff, defendant appeals.

<p>From Delaware- Circuit Court; J. Cf. Leffler, Judge.</p> <p>Action by Joseph F. Stephens against Anna B. Smith and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal and Error. — Assignment of Error. — Exceptions.—Available error cannot be predicated upon a joint assignment of error upon the conclusions of law, where the appellants did not join in exceptions to the conclusions of law. pp. BIO, 511.</p> <p>Same. — Assignment of Error. — Exceptions.—Where appellants separately excepted “to the first, second, and third conclusions of law,” but did not except to each conclusion, or to any one of them singly, an assignment of error as to a single conclusion cannot be recognized. pp. 510, 611.</p>

From Allen Superior Court; Edward O’Rourke, Special Judge. Action by Charles F. Flutter against the New York, Chicago' & St. Louis Railroad Company for damages for personal injuries. From a judgment for defendant on answers to interrogatories notwithstanding the general verdict, plaintiff appeals.

<p>Officers. — Impeachment on Petition of Private Citizen. — Judgment. —Section 35 of the impeachment act of 1897 (Acts 1897, p. 278), which provides that the “prosecuting officer” shall have judgment for §500 for his services, does not authorize the trial court to render judgment for such sum in favor of the petitioner who is a private citizen, since the words “prosecuting officer” within the meaning of the statute means the prosecuting attorney.</p>

<p>Ei’om Perry Circuit Court; E. M. Swan, Judge.</p> <p>Action by Charles Marting against Oil School Township on contract to teach school. Erom judgment for plaintiff, defendant appeals.</p>

Erom Boone Circuit Court; B. 8. Higgins, Judge. Action by A. F. Shirts and others against J. D. Maxwell and another for diverting water on the land of plaintiffs. From a judgment for plaintiffs, defendants appeal.

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Suit by Marcus J. Kuhn and others against Boyd Ladd for partition. From a judgment in favor of plaintiffs, derfendant appeals.</p>

<p>Appeal and Error. — Record.—Motion to Modify Judgment. — The action of the court in overruling a motion to modify a judgment cannot be reviewed on appeal where the motion was not preserved by bill of exceptions, and was not incorporated in an order of court purporting to make same a part of the record without a bill of exceptions, p. 551.</p> <p>Husband and Wife. — Inchoate Interest of Wife.— Foreclosure of Mortgage. — Surplus Arising from Sale. — Under §2669 Bums 1901, providing that in case of judicial sales of real estate when the inchoate interest of the wife is not directed by the court to be sold or barred by virtue of the sale, such inchoate interest “shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest now becomes absolute upon the death of the husband,” etc., a wife is entitled to the surplus arising from a foreclosure sale, as against the creditors of her husband, the surplus being less than one-third of the amount for which the property sold under the foreclosure sale. pp. 551, 55%.</p> <p>Husband and Wife. — Inchoate Interest of Wife. — Foreclosure of Mortgage. — Surplus Arising from Sale. — Where, in an action to foreclose a mortgage executed by husband and wife, certain judgment creditors of the husband were made parties defendant without stating their interest, and the wife being served with -process failed to appear and was defaulted, the court had no jurisdiction to determine the rights of the creditors in the surplus, after the satisfaction of the mortgage, as against the interest of the wife. pp. 553-555.</p> <p>Appeal and Error. — Record.—Summons.-—-Process.—Where, on appeal, no summons except that requiring an appearance of the defendants to the plaintiff’s complaint is shown by the record, it must be regarded as shown that there was no other summons for a defendant who did not appear in person or by attorney, since under §662 Bums 1901 a summons for a defendant who has not appeared to the action is to be deemed a part of the record, pp. 553-555.</p> <p>Judgments. — Review. — Exceptions. — Jurisdiction. — A judgment • rendered without jurisdiction may be reviewed without exceptions having been saved thereto in the trial court, pp. 556, 557.</p>

From Blackford Circuit Court,; E. G. Vaughn, Judge. An affidavit charging Noah Siente with obstructing the view of the interior of his saloon on Sunday was quashed. State appeals.

<p>Erom Hendricks Circuit Court; T. J. Gofer, Judge.</p> <p>Action by Mayme Breedlove against David C. Breed-love for divorce. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Sullivan Circuit Court; W. W. Moffett, Judge.</p> <p>Action by William H. Leathers against Andrew M. Orr. From a judgment, for plaintiff, defendant appeals.</p>

Original application for mandamus by the State on the relation of Addison B. Nickey and others to compel Joseph A. Woodhull, trial judge, to sign a bill of exceptions.

<p>From Tipton Circuit Court; W. W. Mount, Judge.</p> <p>Action by Charles Teal against Francis At. Lafara for conversion. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Suit by Mary H. Pritcliett against Ira Gr. Strunk to enjoin the obstruction of an alley. From a judgment for plaintiff, defendant appeals.</p>

From Marion Superior Court; L. M. Harvey, Judge. Action by Ida G. Mitchell, by her next friend, against the city of Indianapolis for personal injuries. From a judgment in favor of plaintiff, defendant appeals'.

<p>Erom Eloyd Circuit Court; W. C. Utz, Judge.</p> <p>Action by Lizzie A. Wright, executrix, against Edward King and Martha'A. King to foreclose a mortgage. Erom a judgment for plaintiff, defendants appeal.</p>

<p>Appeal and Error. — Reversal of Judgment on Answers to Interrogatories Notwithstanding General Verdict. — Upon the return of a general verdict for plaintiff defendant filed motions for judgment on answers to interrogatories and for a new trial. The court rendered judgment for defendant on the answers to interrogatories, notwithstanding the general verdict, without passing upon the motion for a new trial, which judgment was reversed on appeal. After the cause was remanded defendant insisted that its motion for a new trial should be ruled upon. Held, that judgment was properly-rendered on the general verdict. Comstock and Wiley, JJ., dissent. pp. 605, 606.</p> <p>Judgment. — Verdict.—Interest.—Where judgment was not rendered for sometime after the return of the verdict, interest from the date of the verdict should not be included in the judgment, but the judgment should be made to bear interest from the date of the verdict, pp. 606, 607.</p>

<p>Erom Wabash Circuit Court; H. 8. Biggs, Special Judge.</p> <p>Action by John Seisler against George Smith and others to review a judgment. From a judgment in favor of de-' fendants, plaintiff appeals.</p>

Erom Miami Circuit Court; J. T. Cox, Judge. Suit by Gabriel Godfroy against tbe board of commissioners of Miami county to enjoin tbe taxation of plaintiff’s lands wbicb be claimed exempt as Indian lands. Erom a decree granting an injunction, defendant appeals.

From Spencer Circuit Court; E. M. Swan, Judge. Proceedings by Sidney W. Stockings against Mary Lammert and others for the enforcement of a judgment against property alleged h> have been conveyed in fraud of creditors. From a judgment for plaintiff, defendants appeal.

From Madison Circuit Court; J. F. McClure, Judge. Proceeding by Andrew J. Woodring and others for tbe establishment of a highway to which Samuel P. Brown and others remonstrated. From a judgment against the petitioners on appeal from an order of the board of commissioners establishing the highway, petitioners' appeal.

Erom Boone Circuit Court; B. 8. Higgins, Judge. Action by Eboda Skelton against the Wayne International Building and Loan Association for the satisfaction of a mortgage. Erom a judgment for plaintiff, defendant appeals. Reversed.

From Madison Circuit Court; J. F. McClure, Judge. Proceeding by Frank Browers for the enforcement of a judgment obtained before a justice of the peace against the Chicago and Southeastern Railroad Company for animals killed on its tracks. From a judgment in favor of plaintiff, defendant appeals.

Erom Yigo Circuit Court; J. E. Piety, Judge. Suit hy Mary J. Rogers and others against Uriah Shew-maker and others to quiet title. Erom a judgment in favor of defendants, plaintiffs appeal.

<p>Husband and Wife. — Executory Contract by Wife for Sale of Beal Estate. — Specific Performance. — An executory contract of a married woman for the sale of her real estatedn which her husband does not join is not enforceable.</p>

<p>Trial. — Finding.—Conclusion of Law.- — A finding of the court that “a deed was duly issued according to the statute of the State, to the plaintiff herein, by Daniel W. Sanders, auditor of Whitley county,” is a mere conclusion of law. p. 61ft.</p> <p>Taxation. — Tax Deed. — Attestation.—A tax deed not witnessed by the county treasurer as provided in §8624 Burns 1901, is not sufficient evidence to entitle the grantee to quiet title to the lands therein conveyed, p. 61ft.</p>

From Benton Circuit Court; S. P. Thompson, Judge. Suit by John G. Rund and another against George A. Matthews and another to quiet title. From a decree for plaintiffs, defendants appeal.

From Henry Circuit Court; W. O. Barnard, Judge. Action by Benjamin F. Koons, administrator of the estate of Anna Ridgeway against Charles B. Manifold and others on a promissory note. From a judgment in favor of defendants, plaintiff appeals.

From Posey Circuit Court; O. M. Welborn, Judge. Suit by Clarence L. Fifer and others against Olive J. Rachels and others to quiet title. From a decree for defendants, plaintiffs appeal.

Erom St. Joseph Circuit Court; Lucius Hubbard, Judge. Edward Creagan was denied a license to sell intoxicating liquors, and on appeal to the circuit court the license was granted. Harry A. Moran and others, remonstrants, appeal.

From Marshall Circuit Court; A. C. Gapron, Judge. • Suit by James H. Matchett against Peter Knisely and others on notes and to foreclose a mortgage. From a judgment for defendant Paulus on her cross-complaint and for plaintiff against defendant Knisely and others, plaintiff appeals.

From Elkhart Circuit Court; H. D. Wilson, Judge. Action by Curtis 1ST. Bowles against the Indiana Railway Company for personal injuries. From a judgment for defendant on demurrer to complaint, plaintiff appeals.

Erom Blackford Circuit Court; Abe Simmons, Special Judge. Proceedings by State Building and Loan Association against Henry E. Brackin, trustee, and others to review a judgment. Erom a judgment for defendants, plaintiff appeals.

From Marion Superior Court; Vinson Garter, Judge. Action by George Wolf, receiver of the Globe Accident Insurance Company, against Edward J. Robison for tbe recovery of an insurance premium. From a judgment for plaintiff, defendant appeals.

<p>Eminent Domain. — Railroad Right of Way. — Damages to Adjoining Land. — Damages suffered by a landowner from throwing rocks and soil upon his adjoining land in the necessary work of constructing a railroad on land appropriated as a right of way is a proper element of damages for such appropriation.</p>

<p>From Lawrence Circuit Court; W. H. Martin, Judge.</p> <p>Action by Willard Maddux against The Western Union Telegraph Co. for damages. From a judgment for plaintiff, defendant appeals.</p>

From Grant Circuit Court; H. J. Paulus, Judge. Action by Lydia A. Jones and others against Cassius C. Bradford and others to enjoin the sale of real estate. From a judgment for defendants, plaintiffs appeal.

<p>From Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Action by Jonas G. Howard, Administrator, against the Baltimore and Ohio Southwestern Railroad Co. for damages. From a judgment for plaintiff, defendant appeals.</p>

<p>From Blackford Circuit Court; E. C. Vaughn, Judge.</p> <p>Prosecution by State against Noah Slentz. From a judgment of conviction, defendant appeals.</p>