Volume 30 — Indiana Appellate Court Reports

From Kosciusko Circuit Court; II. 8. Biggs, Judge. Application by Johnson- Kelson for a license to sell intoxicating liquors. From a judgment of the circuit court reversing an order of the hoard of commissioners refusing the license, Heber M. Fried and others, remonstrants, appeal,

<p>Appeal and Error. — Record.—Evidence.—Certificate of Clerk. — Seal of Court. — Whore the certificate of the clerk attached to the transcript following the bill of exceptions containing the evidence does not have the seal of the court affixed thereto, the evidence can not be considered on appeal.</p>

From Jasper Circuit Court; S. P. Thompson, Judge. Action by David D. Gleason against Samuel McGinnis for money loaned and for work and labor. From a judgment for defendant, plaintiff’ appeals.

Erom Marion Circuit Court; II. C. Allen, Judge. Proceeding by Peter Raab and others to change the location of a highway. Prom a judgment reversing the order of the board of commissioners authorizing the change, petitioners appeal.

From. Huntington Circuit Court; J. C. Branyan, Judge. Action by Enos T. Taylor and others against Sarah C. Geiger and others on a promissory note. From a judgment for defendants, plaintiffs appeal.

<p>Prom Allen Circuit Court; Bdioard O’Rourke, Judge.</p> <p>Action by William E. Gibson and others against Gottlieb Haller for goods sold. From a judgment for plaintiffs, defendant appeals.</p>

Erom Marion Circuit Court; H. C. Allen, Judge. Application by tbe International Building and Loan Association to the board of commissioners of Marion county to have refunded to it certain taxes paid, under protest. Erom a judgment of the circuit court sustaining the board of commissioners in denying the application, the petitioner appeals.

Erom Knox Circuit Court; G. W. Shaw, Judge. Action by John McAnally and others against Ira Glidden, receiver of the Old Pittsburg Coal Company, and others, for the enforcement of liens for labor and material. Erom a judgment in favor of defendants, plaintiffs appeal.

From Laporte Superior Court; H. B. Tuthill, Judge. Action by Martin T. Krueger against the Western Union Telegraph Company for damages for cutting trees on the highway abutting plaintiff’s real estate. From a judgment for plaintiff, defendant appeals.

Erom Vanderburgh. Circuit Court; J. II. Foster, Judge. Action by Louis Lee against Robert Eranklin and others to recover possession of real estate and to quiet title. Erom a judgment for plaintiff, defendant Robert Eranklin appeals.

<p>Erom Madison Superior Court; H. G. Ryan, Judge.</p> <p>Action by David A. "Williams against the , American Tin-Plate Company for personal injuries sustained. Prom a judgment for plaintiff, defendant appeals.</p>

From Blackford Circuit Court; E. C. Vaughn, Judge. Suit by William L. Jones against Harry Mount and others to quiet title. From a judgment for defendants on demurrer to complaint, plaintiff appeals.

Erom Marshall Circuit Court; A. C. Capron, Judge. Action by Condie M. Parks against Glenn Dillingham and others upon a promissory note and to foreclose a mortgage securing the same. Erom a judgment for plaintiff, defendants appeal.

From Lake Circuit Court; J. W. Youche, Judge. Action by Eva M. Sayler against Lorenzo D. Jackson and others to set aside a conveyance as fraudulent and subject the real estate to the payment of debts. From a judgment for plaintiff, defendants appeal.

Erom Madison Circuit Court; J. F. McClure, Judge. Suit by one Wilcox against the Midland Railway Company to foreclose a mechanic’s lien. Erancis M. Trissal filed a cross-complaint for attorney’s fees, the case was submitted to a master commissioner and judgment was rendered on the commissioner’s report in favor of Trissal, and the railway company appeals.

<p>Plea in Abatement. — Process.—A plea in abatement by a corporation on the ground that process was served on an improper person should allege that he was not a proper person at the time the summons was actually served, not at the time the plea was filed. pp. 86, 87.</p> <p>Mines and Minerals. — Natural Gas. — Lease.—Removal of Fixtures. —A complaint by a landowner against a lessee for damages, charging that the lessee destroyed a gas-well on the leased premises by removing the drivepipe, casing, and tubing from the well, states a cause of action regardless of the question as to whether or not natural gas, or the various appliances necessary to bring it to the surface, are personal property; since the shaft or hole drilled into plaintiff’s land which was destroyed by removing the casing was a part of the realty, p. 87.</p>

From Miami Circuit Court; J. T. Cox, Judge. Action by Frank Linn against the Chicago, Indiana & Eastern Railway Company for the unlawful appropriation of real estate. From a judgment for plaintiff, defendant appeals.

<p>Mines and Minerals. — Rate of Natural Gas Charges. — Plaintiff brought suit to recover money alleged to have been wrongfully collected for gas furnished for use at his laundry and to enjoin defendant from charging him more than the amount charged manufacturers. Defendant’s franchise permitted it to charge domestic consumers twelve cents per 1,000 cubic feet, meter measurement, for gas furnished domestic consumers, and seven and one-half cents per 1,000 feet to manufacturers, but no rate was fixed for laundries. Plaintiff made application for gas for his laundry and entered into a written contract to pay twelve cents per 1,000 feet, but the company voluntarily reduced the price to ten cents, the amount charged other laundries, which plaintiff paid without any objection. Held, that plaintiff was not entitled to recover.</p>

<p>Easements. — Private Way. — User.—In order to acquire a private right of way over the lands of another by prescription, the use of the way must have been continuous, uninterrupted, and adverse, under a claim of right, and with the knowledge and acquiscence of the owner of the land. A landowner parts with none of his rights by simply permitting another to pass over his land.</p>

From St. Joseph Circuit Court; W. A. Funk, Judge. Action by Gertrude Black, by next friend, against the city of Mishawaka and others for personal injuries. From a judgment for defendants, plaintiff appeals.

From Wells Circuit Court; F. C. Vaughn, Judge. Action by Martha Middaugh against Bethilda Wilson and husband on a promissory note. From a judgment for defendants on demurrer to complaint, plaintiff appeals.

<p>Erom Adams Circuit Court; D. D. Hell.er, Judge.</p> <p>Injunction proceeding by John S. Bowers against Calvin Miller and others. Erom a judgment for plaintiff on demurrer to complaint, defendants appeal.</p>

Erom Tippecanoe Superior Court; W. E. Wallace, Judge. Suit by William C. Smith to cancel an assessment of. personal property and to enjoin the auditor from placing the same upon the tax duplicate. Erom a judgment for plaintiff, defendants appeal.

Erom Hancock Circuit Court; F. W. Felt, Judge. Action by Mary E. Johnson against the city of Greenfield for services rendered in nursing a smallpox patient. Erom a judgment for plaintiff, defendant appeals.

Prom Johnson Circuit Court; W. J. Buckingham, J udge. Suit by William W. Demaree and others against William A. Bridges and others to enjoin the collection of a tax voted in aid of a railroad. Prom a judgment for defendants, plaintiffs appeal.

From Marion Circuit Court; II. C. Allen, Judge. Action Ly the Marion Trust Company, as receiver of the Washington Savings & Loan Association, against the board of commissioners of Marion county to recover taxes claimed to have been erroneously assessed. From a judgment for plaintiff, defendant appeals.

<p>From Pulaski Circuit Court; G. W. Beeman, Judge.</p> <p>Action by Margaret A. Comer against John R. Hayworth. From a judgment for defendant, plaintiff appeals.</p>

From St. Joseph Circuit Court; W. A. Funk, Judge. Action by Charles Sehroeder against Ulysses S. G-. Hagey and others for the value of wheat delivered to defendants. From a judgment for plaintiff, defendants appeal.

<p>From Wells Circuit Court; F. G. Vaughn, Judge.</p> <p>Claim by Sarah M. Ulmer against William W. McBride as executor of the will of Jacob Stroop, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>Judgment. — Complaint to Set Aside Default. — Excusable Neglect. — In a suit to be relieved from a decree in a foreclosure proceeding rendered upon default, on the ground of excusable neglect, the plaintiff averred in her complaint that prior to the commencement of the foreclosure proceeding she held a judgment against her husband, who was the judgment defendant in such foreclosure suit; that she was made a party defendant in such suit, but was told by plaintiff's attorney that her interests would be protected; that she employed an attorney to appear generally for her, but that her said attorney, after plaintiff’s counsel agreed in open court to the form of an entry which would have protected her interests, withdrew from the case; that thereafter a codefendant filed a cross-complaint in which the validity of her judgment was attacked, and, in the absence of her attorney, her judgment lien was held void. Meld, that the complaint was insufficient on demurrer, pp. 162-166.</p> <p>Law of Case. — No Material Amendments. — Where a complaint has been held insufficient on appeal, such ruling is conclusive in a subsequent appeal, no substantial or material amendment of the complaint having been made. p. 166.</p> <p>Pleading. — Suit to Set Aside Default. — Motion to Strike Out. — Where, in a suit to set aside a default on the ground of excusable neglect, allegations in the'complaint seeking to charge with fraud the attorney who took the default, which allegations are mere epithets and fail to charge unprofessional conduct on the part of such attorney, are properly stricken out on motion, pp. 169-171.</p> <p>Judgment. — Complaint to Set Aside Default. — In a complaint to set aside a default, an allegation that the court would not have entered the judgment it did if it had been advised of the facts, states merely a conclusion of law. p. 172.</p>

From Madison Circuit Court; JE. H. Bundy, Special Judge. Action by William A. Service against the estate of Charles T. Doxey and others to recover rentals on a gas and oil lease. From a judgment for plaintiff, Doxey’s estate appeals.

<p>Municipal Corporations. —•Sewer Assessments. — Enforcement.— Complaint.- — It is not necessary in an action for the enforcement of a sewer assessment to file as exhibits to the complaint copies of the various resolutions, orders, and ordinances adopted by the council in the proceedings pertaining to the improvement, p. 181.</p> <p>Appeal and Error. — New Trial. — Causes stated in a motion for a new trial that “the finding and judgment of the court is contrary to the evidence, ’ ’ and ‘ ‘the judgment and finding of the court is contrary to law” are not such causes for anew trial as the statute recognizes, pp. 181, 182.</p> <p>Same. — Evidence.—Failure to Discuss. — Record.—Alleged error in the admission of evidence will not be reviewed on appeal where coun- ' sel failed .to call the attention of the Appellate Court to any place in the record where they entered any objection or reserved any exception to the evidence, and also failed to discnss the question in their brief, p. 188.</p>

<p>Highways. — rAtsi Opened Within Six Years. — Incorporation in Town.— Effect. — The provision of §6759 Burns 1901, that “Every public highway already laid out or which may hereafter be laid out and which shall not be opened and used within six years from the time of its being laid out, shall cease to be a highway for any purpose whatever” does not apply where the land over which the highway was laid was included in the corporate limits of a town during the life of a judgment establishing the highway; since the incorporation took the highway from the operation of the limitation of the statute and made it a street, and it thereby came within the exception of the statute “nor shall this section be applied to streets and alleys in any town.”</p>

<p>Appeal and Error. — Assignment of Error. — Separate Demurrers.— Where separate demurrers were filed to two paragraphs of answer and the court sustained the demurrers in a single ruling, an exception to the ruling, in effect, was an exception to the action of the court relating to each paragraph of answer, and specifications in the assignment of errors on appeal were properly directed to the rulings on the demurrers separately, pp. 187-190.</p> <p>Pleading. — Insurance. — Ownership of Property.- — An answer in an action on an insurance policy that there was a dispute between plaintiff and another as to the ownership of the property insured amounted merely to a denial, pp. 190, 191.</p> <p>Same. — Insurance.—Ownership of Property. — Encumbrances.—An answer in an action on an insurance policy which in addition to denying plaintiff’s ownership of the property insured alleged a misrepresentation by plaintiff as to the amount of encumbrances on the property is merely a traverse of the cause of action stated in the complaint, pp. 191, 192.</p> <p>Appeal and Error. — Trial.—Exceptions.—Evidence.—No question is saved for review upon the exclusion of evidence, where an exception was taken to the action of the court in sustaining the objection, an offer to prove made, and an exception then taken to the action of the court in rejecting the offer to prove, p. 192.</p>

<p>Pleading. — Complaint.—Omission of Name of Court. — Where a complaint contains in its title the names of the parties and the state and county in which the action is brought, an objection that it does not contain the name of the court is to the form rather than the substance and is not available on appeal, pp. 194, 195.</p> <p>Parties. — Street Railroads. — Personal Injuries. — Transfer of Company.— A complaint for personal injuries against a street railroad company and its successor to whom all of the property had been transferred after the alleged injury, is not demurrable on the ground that such transfer only gave the right to enforce judgments against the original company against its property in the hands of its successor, as the complaint shows a cause of action against the latter and the manner of enforcing the judgment does not arise upon the demurrer, p. 195.</p> <p>Appeal and Error. — Modified Instructions. — Exceptions.—Alleged error of court in modifying requested instructions and giving the same as modified can only be saved by motion for new trial, pp. 197,198.</p> <p>Negligence. — Personal Injuries. — Instructions.—Street Railroads. — No error was committed in instructing the jury in an action against a street railroad company for personal injuries received by a woman in alighting from the car with a child in her arms that “The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his interests were to be affected and the whole risk were his own, ’ ’ where the jury was informed by other instructions that negligence was the failure to do what a reasonable and prudent person would ordinarily do under the circumstances of the situation; and that a failure to observe the degree of care which the circumstances justly demand, whereby an injury is received, is negligence, p. 198.</p> <p>Evidence. — Privileged Communications. — Physician and Patient. — Personal Injuries. — An objection was properly sustained to a question propounded to a witness on cross-examination, in an action for her personal injury, which called for an alleged conversation had by the witness with a physician, after the injury, relative to a contemplated abortion on the part of the witness, upon the advice of her attorney, on the ground that such conversation was privileged. Roby, C. J., and Henley, J., dissent, pp. 198-S0S.</p>

<p>Erom Superior Court of Allen County; E. O’Rourke, Special Judge.</p> <p>Suit by Olive L. Odem and another against John P. Evans and others. Erom a judgment for plaintiffs, defendant Evans appeals.</p>

<p>Husband and "Wife. — Wife’s Torts. — Personal Injuries. — Negligence.— Master and Servant. — A wife is not the servant of her husband in such sense as to render the husband liable for a personal injury inflicted by her while engaged in the use of her husband’s personal property in the performance of her duty as a wife, in domestic service for herself and her family, including her husband, not in his presence, nor by his direction, but by her trespass through her negligent use of such property.</p>

<p>From Fountain Circuit Court; J. M. Babb, Judge.</p> <p>Petition by Flora Moffitt, a minor, for the removal of Robert N. Voliva as her guardian. From a judgment removing Mm, he appeals.</p>

From Marion Circuit Court; H. C. Allen, Judge. Grace M. Myers and others filed exceptions to the final report of Tillie Duzan,. administratrix of the estate of Henry D. Myers, deceased, asking that they be permitted to participate in the distribution of a fund recovered on account of the death of decedent. From a judgment in favor of Grace M. Myers and Harry D. Myers, the administratrix appeals.

<p>Husband and Wife. — Damages.—Joint Action. — A joint action can not be maintained by a husband and wife to recover damages resulting to each of them by reason of the alleged unlawful entry of the landlord upon the premises occupied by them as joint lessees, on account of a nervous shock to the wife caused by such entry, and the expense, loss of time, etc., of the husband.</p>

<p>New Trial. — Motion.—Time of Filing. — The provision of §570-Burns 1901, that if a verdict or decision is rendered on the last day of the session of any court, or on the last day of any term, the motion for a new trial may be made on the first day of the next term is imperative, and the court has no power to grant an extension beyond the time specified, without the consent of the parties, express or implied, pp. 241, 242. %</p> <p>Same. — Motion.—Time of Filing. — Waiver.—Where it appears from the record that appellee was absent when the motion for a new trial was filed, his failure to object that the motion was not filed in time will not amount to a waiver of such objection, p. 242.</p>

From Fayette Circuit Court; F. S. Swift, Judge. Action by Silas Ayers against Hannah Huddleston and others for the location of a boundary line. From a judgment in favor of defendants, plaintiff' appeals.

<p>Appeal and Error. — Jurisdiction.—An appeal will not lie under the act of 1901 (Acts 1901, p. 566) from a judgment in an action on a contract of guaranty wherein $160 was demanded.</p>

<p>Erom Wayne Circuit Court;-AT. C. Fox, Judge.</p> <p>Action by Jobn Etter against Robinson & Co. for damages for personal injuries. Erom a judgment for plaintiff’, defendant appeals.</p>

<p>From Jasper Circuit Court; S. P. Thompson, Judge.</p> <p>Action by Franklin Fisher against John G-. Perry and others to foreclose a mortgage. From a judgment for plaintiff, defendants appeal.</p>

Erom Hendricks Circuit Court; T. J. Cofer, Judge. Action by Mary A. Spears, administratrix of the estate of Willis Spears, deceased, against the estate of James W. Thompson, deceased. Erom a judgment for defendant, plaintiff appeals..

Prom Marion Circuit Court; H. C. Allen, Judge. Action by Gustave Pabel against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for the death of his son. Prom a judgment for defendant on demurrer to complaint, plaintiff appeals.

<p>Erom Dearborn Circuit Court; N. 8. Givan, Judge.</p> <p>Action by tbe State of Indiana on tbe relation of tbe board of commissioners of Dearborn county against Ambrose E. Nowlin and others. Prom a judgment for • plaintiff, defendants appeal.</p>

<p>Pleading. — Clerical Error. — Insurance.—A complaint on an insurance policy alleging that "plaintiff on the 6th day of December, 1899, • of one dwelling-house, No. 1, situate in Jackson county, Indiana,” is not bad for failing to allege ownership; since it is apparent that the words "was the owner” were omitted by clerical error, and could have been cured by amendment in the trial court even after verdict, pp. 282, 283.</p> <p>Insurance. — Ownership of Property. — Insurable Interest. — Pleading.—A complaint on an insurance policy which fails to show that plaintiff was the owner of the insured property at the time of the fire, or that he had an insurable interest therein, is bad as against demurrer, p. 284.</p> <p>Appeal and Error. — Demurrers.—Exception.—In an action against an insurance company the record shows that defendant demurred to “the first and second paragraphs of plaintiff’s complaint herein, and to each of said paragraphs separately and severally’ ’ and upon the overruling thereof “the defendants at the time except.” Held, that the demurrer was separate and several and that the exception to the ruling thereon was not joint, since there was but one defendant, the use of the word “defendants” in the exception being a clerical error, pp. 284, 885.</p> <p>Same; — Complaint. — Good and Bad Paragraphs. — Judgment.—Where demurrers to two paragraphs of complaint were overruled and on appeal one paragraph was held to be fatally defective, the judgment cannot be upheld on the ground that there is one good paragraph, where it does not affirmatively appear from the record that the judgment was based upon the good paragraph, p. 288.</p>

<p>Municipal Corporations. — Streets.—Acceptance.—Personal Injuries.— Evidence in an action against a city for damages caused by the alleged negligent failure of defendant to keep one of its streets in repair, that the owners of the land graded the street in. question, built a sidewalk, had telegraph poles strung along it, and that the public used it extensively as a street for. two or three years before the injury occurred, is sufficient to show an implied acceptance of the street by. the city, although no formal acceptance thereof was shown.</p>

<p>Erom Jay Circuit Court; J. M. Smith, Judge.</p> <p>Action by Isaac PetersoD against the Prussian National Insurance Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Deed. — Conditions.—Breach.—Forfeiture.—A deed conveying certain described real estate contained the condition that the grantee “shall not mortgage, encumber, or convey all or any part” of the land within twenty years, and if the grantee should ‘ ‘mortgage, encumber, or convey the real estate within said time, the same shall be forfeited.” The grantee mortgaged a portion of the land. Held, that the forfeiture was limited to the part of the land encumbered, pp. 301-804.</p> <p>Same. — Condition.—Forfeiture.— Tax Lien. — A condition in a deed that a mortgage or other encumbrance by grantee shall work a forfeiture of the estate is limited to encumbrances voluntarily-placed on the land by the grantee, and does not include a lien for taxes, p. 801.</p>

From Superior Court of Allen County; J. II. Aiken, Judge. Action by Anthony B. Trentman and others against Henry Wahrenburg and others for damages for breach of contract. From a judgment for defendants on demurrer to complaint, plaintiffs appeal.

Prom Lake Circuit Court; T. E. Howard, Special Judge. Action by the Valparaiso City Water Company against the city of Valparaiso to collect water rent. Prom a judgment for plaintiff, defendant appeals.

<p>From Cass Circuit Court; D. H. Chase, Judge.</p> <p>Action by Daniel K. Snyder and another against Michael Wendling. From a judgment for plaintiffs, defendant appeals.</p>

<p>Fraudulent Marriage. — Bastards.—Divorce.—An answer that the wife procured a divorce after the husband’s desertion does not constitute a defense to an action by the State on the relation of the divorced wife for the recovery of the penalty provided by §7298 Burns 1901, for the fraudulent marriage and abandonment of the wife by the husband.</p>

<p>Contracts. —Forfeiture. — Condition Precedent. — Building Contract.— Where a building contract makes the certificate of the architect that the contractor is not complying with the - contract a condition precedent to the right of the owner to terminate the employment, the condition must be strictly complied with. pp. 343-845.</p> <p>Same. — Condition Precedent. — Pleading.—"Where the parties to a building contract have made the certificate of the architect a condition precedent to the assertion of a right thereunder, the party claiming such right must show the performance of the condition, a reason for noncompliance therewith, or a waiver thereof, p. 845.</p> <p>Pleading. — Evidence.—Condition Precedent. — An excuse for the nonperformance of a condition precedent can not be proved under the averment of performance, p. 845.</p> <p>Same. — Condition Precedent. — In an action by the owner against the contractor to recover the difference between the contract price of the construction of a building and the actual amount expended by the owner for its completion, after an attempted termination of the contract by the owner, an averment ‘'that the plaintiff has done and performed all the agreements, provisions, and stipulations to be by him done and performed by the terms of said contract and bond, in time and manner as in said contract provided’ ’ is not equivalent to an averment of the performance of the conditions precedent, pp. 345, 346.</p> <p>Contracts. — Termination.—Condition Precedent. — Certificate .of Architect. — Where a building contract provides that on failure of the contractor to comply with the terms of the contract the owner may, upon a certificate of the architect that such refusal, neglect, or failure is sufficient ground for such action, terminate the contract and enter upon the premises and complete the work, a certificate of the architect that the work'was not being properly performed, and that the owner might take such action as ho deemed best, was not sufficient to authorize a termination of the contract, pp. 346, 341-</p>

<p>Negligence. — Complaint.—Two Acts of Negligence. — Proof.—If two acts of negligence are averred and the only injury complained of resulted from these two acts acting conjointly, there can be no recovery if one of the acts of negligence is found not to exist, p. 352.</p> <p>Same. — Complaint.—Where there are several charges of negligence, either of which is sufficient, it is not necessary to prove the several charges, p. 353. <■</p> <p>Same. — Complaint. — Two Acts of Negligence Charged. — Sufficiency of Evidence. — In an action by ah. employe in a foundry for injuries caused by being struck by a crane and ladle and pushed into a pool of molten steel, the complaint contained averments that the defendant was negligent in putting the molten steel upon the floor, and in pushing the crane and ladle without warning against plaintiff. Held, that the complaint did not change two acts of negligence acting conjointly, and that there might be a recovery though but one of the acts of negligence was proved, p. 353.</p> <p>Master, and Servant. — Contributory Negligence. — Presumption.—In an employe’s action for, damages for personal injuries‘sustained while working in a dangerous place, the jury returned a general verdict for plaintiff, and, in answer to special interrogatories, found that there was another method of doing the work. Held, that it would not be presumed, in the absence of a finding to that effect, that such other method would have been less dangerous. pp. 353, 354.</p> <p>Same. — Dangerous Working Place — Assumption of Risk. An employe who by the direction of his foreman does work knowing that if the foreman negligently causes adjacent appliances to be moved without warning that it would be a place of danger, such employe is not required constantly to watch the appliances to see if they are to be moved, pp. 854,, 355.</p> <p>Same. — Knowledge of Danger. — Iiistruction.—In an action by an employe for personal injuries an instruction that if plaintiff was employed to work and to obey orders of the foreman in a certain department of defendant’s factory, then such employe was not required to have any better knowledge of the condition of the machinery than he would derive from a reasonable and careful exercise of his sight and hearing, and if, under such circumstances and while in the line of his duty, and obeying orders of the foreman, plaintiff was injured without contributory negligence on his part, the jury should find for the plaintiff, is not erroneous as tending to mislead the jury into concluding that there might he a recovery even .though plaintiff had actual knowledge of the danger, p. 855.</p>

<p>Brokers. — Commission.—Evidence.—A real estate broker recovered a judgment for commission on a contract in which the owner agreed to pay a commission for finding a purchaser for his farm at $65 per acre, $2,000 to be paid in cash, and balance on terms satisfactory to the owner. The evidence showed that the owner priced the land to the buyer, produced by the agent, at $75 per acre, . and that nothing was said about any other price until after the terms of payment had been agreed upon, when the purchaser said he would take the land at $65 an acre on those terms, and the offer was rejected by the owner. Held, that there was no evidence to show that the minds of the contracting parties met upon any terms or conditions as applied to deferred payments, upon a basis of $65 an acre, and that plaintiff was not entitled to recover.</p>

Erom DeKalb Circuit Court; W. M. Brown, Special Judge. Action by Alpheus W. Madden, administrator de bonus non of the estate of Herman N. Coffinberry, deceased, against William II. Coffinberry. Erom a judgment for plaintiff, defendant appeals.

<p>From Greene Circuit Court; O. B. Harris, Judge.</p> <p>Action by Joseph G. Smith and others against Lewis O. Tate and others. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>From Superior Court of Marion County; J. M. Leathers, Judge-. .</p> <p>Suit by the Marion Bond Company, as trustee, against Allie Blakely. Prom a judgment for defendant, plaintiff appeals.</p>

From Clinton Circuit Court; J. V. Kent, Judge. Action by W. Grant Riley against Warner A. Haworth, a person of unsound mind, and his guardian. From a judgment for defendants, plaintiff appeals.

From Tippecanoe Circuit Court; Jere West, Special Judge. Action by the First National Bank of Lafayette and others against William B. Burford and others to set aside a deed of assignment. From a judgment in favor of plaintiffs, defendants appeal.

From Tippecanoe Superior Court; W. D. Wallace, Judge. Action by the State on the relation of Sarah Holliday against George B. King, as sheriff of Tippecanoe county, and others. From a judgment for defendants, plaintiff appeals.

From Parke Circuit Court; A. F. White, Judge. From an order of the hoard of county commissioners allowing a claim of Fleener & Carnahan for searching for •property omitted from taxation, Edward D. Litsey appealed to the circuit court. The circuit court sustained a demurrer to the claim and claimants appeal.

<p>Railroads. — Construction-Train.—Injury to Employe Riding on Flat Car. — It is not negligence as a matter of law for one employed in the construction of a railroad to ride home from his work on a flat car instead of the caboose, where the caboose was placed next to the engine, and there had been no order requiring workmen to ride in the caboose, and the rule making the requirement was not known to the employe, pp. 406-411.</p> <p>Same. — Construction-Train.—Negligence.-—Assumption of Risk. — One employed in the construction of a railroad does not assume the risk of negligence in the running of a construction-train on which ho was riding home from his work. pp. 411, 41$.</p>

<p>Erom Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>Action by Eranklin A. Williams against David A. Leach as guardian of Thurlow Williams. Erom a judgment for plaintiff, defendant appeals.</p>

From Cass Circuit Court; J. M. JRabb, Judge. Suit by Catherine Hildebrandt and others to enjoin Samuel C. Hart from using a private alley. From a judgment for plaintiffs, defendant appeals.

From Clinton Circuit Court; H. H. Vinton, Special Judge. Action by Anna Bradley, special administratrix of the estate of Philander John Bradley, deceased, against David A. Coulter and another, executors of the will of Hiram-H. Bradley, deceased. From a judgment for plaintiff, defendants appeal.

<p>From "White Circuit Court; T. F. Fulmer, Judge.</p> <p>Action by Cullen C. Mason against Elliott Rariden for necessaries furnished defendant’s wife. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Marion County; J. L. McMaster, Judge.</p> <p>Action by Herbert C. Sullivan, by next friend, against Mary P. Golibart and another. Prom a judgment for plaintiff, defendants appeal.</p>

From Jay Circuit Court; J. M. Smith, Judge. Action by Francis M. Yates against William I). Stuck and another for damages for an unlawful assault while' making an arrest. From a judgment for plaintiff, defendants appeal.

From Porter Superior Court; II. B. Tuthill, Judge. Action by John Kyes against the city of Valparaiso for damages arising from the construction of a drain. From a judgment for plaintiff, defendant appeals.

<p>Erom Vanderburgh Circuit Court; IT. A. Matt ¿son, Judge.</p> <p>Action by Rosa Haller against Sovereign Camp, Woodmen of the World, upon’ an insurance policy. Erom a .judgment in favor of plaintiff, defendant appeals.</p>

<p>From Decatur Circuit Court; F. T. Hord, Judge.</p> <p>Suit by the Rushville Natural Gas Company against the town of Morristown and others. From a decree in favor of defendants, plaintiff appeals.</p>

<p>From Marion Circuit Court; H. G. Allen, Judge.</p> <p>Action by Jerome B. Coffman against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Mortgages. — Foreclosure.—Assignment for Benefit of Creditors. — When the trustee of a mortgagee brings suit to foreclose the mortgage it devolves upon him to establish the specific title thereto set up in his complaint, pp. 471, 478.</p> <p>Same. — Foreclosure.—Pleading.—Parties.—Demurrer.—Waiver.—An objection that a complaint by a trustee to foreclose a mortgage did not make the mortgagee a party is waived by failure to demur for defect of parties, p. 478.</p> <p>Same. — Foreclosure.—Special Finding. — Assignment for Benefit of Creditors. — A special finding, in an action to foreclose a mortgage, that the mortgagee executed to plaintiff, “trustee,’” a certain trust deed conveying certain real estate therein described and certain personal property without disclosing who the beneficiary of the supposed trust was, or its purpose or terms, is insufficient to show the existence of a trust, pp. 4¶%> 473.</p> <p>Same. — Forecl'osure.—Special Finding. — A special finding in an action by the “trustee” of a mortgagee to foreclose a mortgage which fails to disclose the nature of the trust can not be aided by an alleged copy of the trust deed, filed as an exhibit to the complaint ; since the deed was not the foundation of the action and is not properly in the record, p. 473.</p>

<p>Mortgages. — Foreclosure.—Junior Liens. — Parties.—Redemption.—Subsequent Suit. — Whore the holders of junior liens were not made parties to a suit to foreclose a mortgage, the assignee of the purchaser at the foreclosure sale may bring a subsequent suit to foreclose their equity of redemption. pq>. 475, 476.</p> <p>Same. — Foreclosure.—Junior Liens.- — -Demurrer.—Whether the amount stated in a complaint to foreclose the equity of redemption of junior lien holders includes any sum or sums improperly included can not be raised by demurrer, p. 476.</p> <p>Same. — Foreclosure.—Description of Real Estate. — A description of real estate in a county in this State as “the north half of lots 43, 44, 45, in Reichelderfer’s addition to the plat of the town of Harlan, being in the southwest { of the southwest £ of section 28, township 32 north, of range 14 east” is not too indefinite to furnish the means of identifying the same. p. 476.</p> <p>Same. — Foreclosure’.—Junior Liens. — Foreclosure of Equity of Redemption. —Parties.—Where the purchaser at a mortgage foreclosure sale assigned the certificate of purchase to another, he had no further interest therein, and was not a proper or necessary party to a suit by the assignee to foreclose the equity of redemption of junior lien holders, pp. 476, 477.</p> <p>Same. — Foreclosure of Equity of Redemption. — Pleading.—Exhibit.—Original Judgment.- — Where a mortgage was foreclosed without making junior lien holders parties, it was not necessary to make a copy of the judgment a part of the complaint in a subsequent action to foreclose the equity of redemption of such, lien holders, p. 477.</p> <p>Appeal and Error. — Judgments.—Defects.—Modification of Judgments. —Waiver.—An objection that a judgment is defective and erroneous in certain particulars is not available on appeal where it does not appear that any motion was made or any steps taken in the court below for a correction or modification of the judgment. p. 477.</p>

From Clark Circuit Court; P. JE. Bear, Special Judge. Suit by Edwin B. Bentley, executor, and others, against Elizabeth Goodwin and her husband, to foreclose a mortgage. Erorn a judgment for plaintiffs, Elizabeth Goodwin appeals.

<p>Vendor’s Lien. — Several Parcels of Land Sold to Different Parties.— Foreclosure. — Where there is an encumbrance upon several parcels of land, and the owner of such land sells the different parcels to different persons, the property last disposed of must be exhausted in payment of the debt before resorting to the other parcels. pp. 486, 487.</p> <p>Same. — Foreclosure.—Complaint.—Before the satisfaction of a vendor’s lien the vendee sold the land in parcels to different persons. The original vendor brought suit against the owner of one of the parcels to foreclose his lien. The complaint showed that the parcel of land was subject to the lien sought to be enforced, but did not show that such parcel was the last one sold. Held, that the complaint was sufficient to withstand a demurrer, p. 487.</p> <p>Same. — Foreclosure.—Abatement of Action. — In a suit to foreclose a vendor’s lien, a plea in abatement set up that the real estate covered by the lien had, after the lien had attached, been transferred in parcels to different persons; that the parcel against which the lien was sought to be enforced was the first of the parcels sold,' and that the value of the other parcels of the original tract was sufficient to satisfy the lien. Held, that the plea was not good on demurrer because it failed to show that the lien had not been released as to such other parcels, and also because it sought relief against other parties concerning a matter not apparent upon the face of the complaint, pp. 488, 489.</p> <p>Pleading. — Leave to File Answer for Codefendant. — Appeal and Error.— After a demurrer to a plea in abatement filed by one defendant had been sustained, and such defendant refused to plead further, the refusal of the court to permit another defendant to file a general denial for and on behalf of the defendant so refusing to plead, is not error, where the party asking leave to file the answer was not prevented from presenting the issues on his own behalf, pp. 489, 490.</p>

From Clay Circuit Court; P. O. Colliver, Judge. Suit by the town, of Clay City against Ida L. Bryson and another to enforce a lien for a sidewalk improvement. From a judgment for defendants, plaintiff appeals.

<p>From Laporte Circuit Court; J. G. Richter, Judge.</p> <p>Action by August Schultz against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Application to the Appellate Oourt by the State on the relation of John Brooking for a writ of mandate to compel James C. Branyan, as trial judge, to rule on motion for new trial.

From Lake Circuit Court; J. II. Gillett, Judge. William H. Gostlin was appointed receiver of the Chicago Horseshoe Company of Indiana. From an order of the court approving the receiver’s report, the company appeals.

From Steuben Circuit Court; E. D. Hartman, Judge. Action by the State on the relation of David Haskins, trustee, against Moses Gonser and others. From a judgment for plaintiff, defendants appeal.

<p>Appeal. — Erroneous Instruction. — Harmless Error. — A cause will not be reversed because oí an erroneous instruction, where the instructions considered as an entirety state the law correctly, p. BI4.</p> <p>Same. — Erroneous Instructions. — Harmless Error. — A cause will not be reversed because of an erroneous instruction, where it clearly appears that the substantial rights of the appellant were not affected thereby, p. BI4.</p>

<p>From Superior Court of Marion County; J. L. McMaster, Judge.</p> <p>Action by Mary Lawn against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Clinton Circuit Court; £>. JS. Chase, Special Judge. Suit by the First National Bank of Frankfort, and others against the Farmers Bank of Frankfort and others. From a judgment for plaintiffs, defendants appeal.

<p>From Elkhart Circuit Court; J. D. Ferrall, Judge.</p> <p>Action by John D. Comstock against Laura E. Stoner. From a judgment for defendant, plaintiff appeals.</p>

<p>From Huntington Circuit Court; J. G. Branyan, Judge.</p> <p>Action by Joseph G-. Amiss against Mahlon F. Smith. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Brief.—Court Rules. — Where appellant’s brief fails substantially to comply with rule twenty-two of the Appellate Court requiring that the brief of appellant shall contain a short and clear statement disclosing certain matters numbered and specified, the cause will be affirmed, pp. 535-537.</p> <p>Pleading. — Demurrer.—No error was committed in overruling a demurrer to a reply on the ground that “neither of said paragraphs states facts sufficient to avoid the second and third paragraphs of answer, ’ ’ where the second paragraph of reply was addressed to the second paragraph of answer only, and the other paragraphs of reply were addressed to the third paragraph of answer, p. 538.</p> <p>Appeal and Error. — Refusal of Interrogatories. — yew Trial. — 1he refusal of the court to require the jury to answer interrogatories submitted by appellant can not be the subject of an independent assignment of error, but should be assigned as a ground for a new trial, p. 539.</p>

<p>From Q-reene Circuit Court; O. B. Harris, Judge.</p> <p>Action by "William Hudson against Alfred M. Ogle and others. From a judgment for plaintiff, defendant Ogle 'appeals.</p>

From Clark Circuit Court; J. K. Marsh, Judge. Suit by the Union Trust Company, as receiver of the Mutual Life Insurance Company, against Peter F. Shilling and wife to foreclose a mortgage. From a judgment for plaintiff for less than the amount demanded, it appeals.

From Greene Circuit Court; O. B. Harris, Judge. Action by Anna E. Unverferth, administratrix of the estate of William Unverferth, against the L. T. Dickason Coal Company for the death of decedent. From a judgment for plaintiff, defendant appeals.

From Hancock Circuit Court; E. W. Felt, Judge. Suit by Nellie Moore and busband against Richard T. Kirkham and another for the specific performance of a contract to convey real estate. From a judgment for plaintiffs, defendants appeal.

<p>Basements. — Private Road. — Establishment.—Complaint.—A complaint to establish a private way of necessity, by one having an easement therefor, must contain averments showing that plaintiff requested defendant, the owner of the servient estate, to select the location of the way, and that defendant had either failed to do so or had located the way in an unreasonable manner. And in case the owner of the servient estate had failed to locate the way, that the plaintiff had selected the route therefor. The way selected must be particularly described.</p>

<p>From Delaware Circuit Court; J. G. Leffler, Judge.</p> <p>Condemnation proceedings by the Great Western Natural Gas & Oil Company against Lewis M. Hawkins and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Sales. — Contract.—Delivery.—Statute of Frauds. — A delivery oí goods is not essential, at common law, to the validity of the sale; and the statute of frauds does not require a delivery where the contract is in writing, p. 582.</p> <p>Same. — Invalidity.—Fraud.—Delivery.—The presumption of fraud and invalidity in a sale of goods, arising from the want of delivery and change of possession, is indulged only in favor of the creditors of the vendor or subsequent purchasers in good faith, pp. 582, 583.</p> <p>Same. — Bargain and Sale. — Executory Contract. — Delivery.—In a case of bargain and sale, the goods, which are the subject of the contract become the property of the buyer as soon as the contract is concluded, whether the goods are then delivered to him or remain in the possession of the seller; but in the case of an executory contract of sale the goods remain the property of the seller until the contract has become executed, p. 583.</p> <p>Same. — Executory Contract. — Whether in a particular case there is an actual sale, .or only an executory contract of sale, depends upon the intention of the parties, which is to be ascertained from the terms of the contract, p. 583.</p> <p>Chattel Mortgage. — Record.-—Delivery of Goods. — Sales.—It is not necessary to the validity of an assignment of goods by way of mortgage, as between the parties thereto, that the goods be delivered or that the mortgage be recorded, and the want of acknowledgment and recording, where the goods are not delivered and retained, does not render the mortgage invalid, except as against others than the parties thereto, p. 583.</p> <p>Same. — Sales.—Husband and Wife. — Descent and Distribution. — A husband immediately prior to his death executed an instrument conveying all of his personal property to his father as security, or in payment of a debt, and shortly after his death the father took possession of the property. The court upon application of the widow assigned the property to her, under §§2575-2578 Burns 1901, giving all of a decedent’s estate to his widow when the same does not exceed $500 in value, and, upon the refusal of the father to deliver the same to her, the widow brought suit for the value thereof. Held, that if the transaction was a bargain and sale, the property would not belong to the estate ■ of decedent, and if it amounted to a mortgage, the decree of the court would merely operate to vest the title in the widow subject to the mortgage, pp. 579-585.</p>

From Grant Superior Court; Hiram Broionlee, Judge. Suit by John .EL Miller, trustee, against Jason Willson and others to enjoin defendants from selling certain real estate on execution. From a judgment for plaintiff, defendants appeal.

From Marion Circuit Court; H. C. Allen, Judge. Proceeding by Anna D. Hughes, individually, and as executrix, against Daniel G. Hughes and others for the construction of a will. From a judgment overruling demurrer to complaint, defendants appeal.

Erom Superior Court of Marion County, J. L. Me-Master, Judge. Action by Lulie W. Robbins against Jolm Moon and George W. Hedrick on a bond securing the performance of a building contract. Erom a judgment for plaintiff', George W. Hedrick, appeals.

From Vanderburgh Circuit Court; H. A. Mattison, Judge. ■ Suit by James S. McDonald, administrator of the estate of Marshall Pruitt, against John W. Knerr, administrator de bonis non of the estate of Laura E. Bilderback, and others, to sell real estate. From a judgment for plaintiff defendants Knerr and others appeal.

<p>From Marion Circuit Court; H. G. Allen, Judge.</p> <p>Action by Mary A. Krug against the Frank Bird Transfer Company and another. From a judgment for plaintiff, defendants appeal.</p>

Erom Porter Circuit Court; J. H. Gillett, Judge. Suit by Benjamin E. Turner against Erederic Heinberg and others to redeem real estate sold on a circuit court decree enforcing a lien of a.ditch assessment. Erom a judgment for defendants, plaintiff appeals.

<p>Mines. — Death of Miner. — Negligence.—Special Finding. — Conflict with General Verdict. —A complaint against a mining company for damages for negligently causing the death of plaintiff’s husband alleged that the mine had been operated for many years, and the room where decedent was at work had become old, and the roof rotten and dangerous, and while decedent was at work, in the exercise of due care, the roof fell upon him, inflicting the injuries from which he died; that the mining boss had neglected to visit the working place and had failed properly to prop and timber the roof, and had allowed the mine at that point to become and remain unsafe. The jury found in answer to interrogatories that the mining boss had visited and examined the room where the . accident occurred within two working days before the date of the injury; that there were props and timbers in the room not in use at the time of the accident that could have been used; that, defendant had a sufficient supply of props and timbers near for use, and that they were always furnished when called for by the men; that defendant did not kno-W and could not have known by an examination that the roof was unsafe. Held, that defendant was not negligent as-charged, and that plaintiff could not recover.</p>

Erom Decatur Circuit Court; Douglas Morris, Judge, Suit for partition by John E. Osborn, as guardian of Culver M. Hillis, against John G. Pulse, guardian of Dwigbt Charlton, and others. Erom a judgment in favor of plaintiff, defendants appeal.

<p>Schools. — Purchase of Supplies. — A recovery can not be had upon notes given by a township trustee for school supplies, where it is not shown that the supplies were purchased in the manner provided'by the act of 1899 (Acts 1899, p. 150). pp. 637-639.</p> <p>Same. — Purchase of Supplies. — Quantum Meruit. — Where a township trustee in the purchase of school supplies failed to comply with the provision of the act of 1899 (Acts 1899, p. 150), regulating the manner of such purchases, a recovery can not be had on the quantum meruit for the supplies so furnished, p. 639.</p>

From Laporte Circuit Court; J. C. Bichter, Judge. Margaret A. Crane filed exceptions to the report of Frank E. Osborn, executor of the estate of Benjamin F. Crane. From a judgment for the executor, exceptant appeals.

<p>Evidence. — Corporate Records. — Parol Proof. — Where the books of a corporation showing the issue and transfer of stock were destroyed, it was not incompetent to show by parol, in an action for the conversion of notes claimed to be part of the assets of the corporation, that the shares of stock for which the notes were given were surrendered and taken by other stockholders, in connection with evidence that the notes were transferred to defendant in consideration for the sale by him to such withdrawing stockholder of certain property.</p>

<p>From Elkhart Circuit Court; J. JD. Ferrall, Judge.</p> <p>Suit for divorce by Freida Stutsman against Floran K... Stutsman. From a judgment for plaintiff, defendant appeals.</p>

From Blackford Circuit Court; A. N. Martin, Special J udge. Action by James M. Sutton against the Baltes Land, Stone & Oil Company and others. From a judgment for plaintiff, defendant company appeals. Decided by the court without written opinion, November 20, 1901.

<p>From Tipton Circuit Court; W. W. Mount, Judge.</p> <p>Action by Augustus C. Wood, administrator of the estate of Ann E. Vert, against the Chicago & South Eastern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Lake Circuit Court; J. H. Gillett, Judge. Proceeding by the Postal Telegraph-Cable Company ágainst the Chicago, Indianapolis & Louisville Railway Company and others to acquire an easement over the right of way of defendants. From a judgment for de-' fendants, plaintiff appeals.

<p>From Rush Circuit Court; Douglas Morris, Judge.</p> <p>Action by Ida Worthington against the Cincinnati, Hamilton & Indianapolis Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Divorce. — Abandonment.—Complaint.—-A complaint for divorce on the ground of abandonment which alleges that plaintiff and defendant were married and lived together as husband and wife until a certain named date, when defendant wholly abandoned plaintiff, and that they have not lived together as husband and wife since, is sufficient, the complaint being filed more than two years after the alleged abandonment, pp. 672, 673.</p> <p>Same. — Residence.—Proof. — Jurisdiction. — In a divorce proceeding, proof of the residence of plaintiff by at least two witnesses who are resident householders and freeholders, as required by §1043 Burns 1901, is a prerequisite to the jurisdiction of the court. p. 673.</p> <p>Appeal and Error. — New Trial. — Record.—Order-book Natry. — Where a motion for a new trial was filed the next day after the rendition of a judgment, an order-book entry immediately following the motion “that the court being fully advised in the premises, overrules the motion hereinbefore made by the defendant heroin, to which ruling the defendant objects and excepts” sufficiently identifies the motion for a new trial, there being no other motion pending, p. 673.</p>

<p>Appeal and Errob. — Action on Restitution Bond in Attachment Proceeding Pending Appeal. — Supersedeas Bond. — An action on a restitution bond in an attachment proceeding is not barred by a vacation appeal by the defendant from a judgment taken against him in the principal action and by the filing of an appeal bond in conformity with a supersedeas issued in the common form.</p>

<p>Mortgages. — Assignment.—Conveyance of Mortgaged Real Estate to Assignee. — Merger.—A mortgagee sold certain promissory notes secured by mortgage and assigned the mortgage in accordance with §1107 Burns 1901. The mortgagor sold the mortgaged real estate and by mesne conveyances the same was conveyed to the assignee of the mortgage who sold and assigned the notes and mortgage to plaintiff without assignment of record as provided by statute, and twenty-three days thereafter sold and conveyed the real estate to defendant by warranty deed and informed him that he had bought the notes and destroyed them, and that the land was clear. Defendant made inquiry of former owners of the land, and was, informed by them also that the notes were paid and destroyed. Held, that defendant took the real estate clear of the mortgage.</p>

Prom Pulton Circuit Court; G. H. Truesdell, Special Judge. Action by Laura B. Thornburg, administratrix of the. estate of Celestian E. Thornburg, and others, against the Aetna Life Insurance Company and another. Prom a judgment in favor of cross-complainant Bernard Ryder, plaintiffs appeal.

<p>Limitation on Action. — Damages to Real Estate. — Railroads.—An action for damages to real estate, by reason of the building and operating of a railroad in front of plaintiff’s property in a city, is barred by the statute of limitations after six years.</p>

<p>From Wells Circuit Court; F. C. Vaughn, Judge.</p> <p>Suit by Alonzo M. Williams against the American Window Class Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From White Circuit Court; T. F. Palmer, Judge.</p> <p>Action by David J. Huston against Frederick Fatka and others. From a judgment for defendants, plaintiff appeals.</p>