Volume 53 — Indiana Appellate Court Reports

<p>From Superior Court of Vanderburgh. County; John U. Foster, Judge Pro Tem.</p> <p>Action by Henry W. Eigenmann against the Board of Commissioners of the County of Vanderburgh and others, From a judgment for defendants, the plaintiff appeals.</p>

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by Tbe Mount Carmel and Johnson’s Fork Turnpike Company against George Loos. From a judgment for defendant, tbe plaintiff appeals.</p>

<p>1. Appeal. — Questions' Presented for Review. — Sufficiency of Complaint. — Exceptions to Conclusions of Lato. — Where the facts specially found by the trial court are substantially the same as those stated in the complaint, an exception to the conclusion of law will present the same question as that raised by a demurrer challenging the sufficiency of the complaint, p. 13.</p> <p>2. Deeds. — Delivery.—Intent of Grantor. — To constitute a delivery of a deed so as to pass title it is necessary that the grantor should intend to give effect to the instrument, p. 15.</p> <p>3. Deeds.- — Delivery.—Intent of Grantor.- — Question of Fact.- — The intention of a grantor, with reference to the delivery of a deed so as to pass title, may be manifested by words, acts, or conduct, and is generally a question of fact for the court or jury trying the issues of fact. p. 15.</p> <p>4. Deeds. — Delivery.—Prima Facie Delivery. — Evidence. — While evidence that a deed was placed on record by a grantor after it had been duly signed, acknowledged and transferred for taxation, shows a prima facie ease of delivery, such prima facie case may be rebutted by evidence of words, acts, or conduct, tending to show that it was not the intention of the grantor to give effect to the instrument, p. 15.</p> <p>5. ' Deeds. — Delivei'y.-—Evidence.—Findings.—Conclusions of Lano. —The finding of the trial court that plaintiff did- not intend to pass title by a deed which he signed and caused to be recorded, is not overcome by evidentiary facts set out in the finding that may be reconciled with the ultimate fact so found, so that its conelusion of law that plaintiff’s title should be quieted was not erroneous, p. 16.</p> <p>6. Appeal. — Review.—Ruling on Motion for New Trial. — Where there was evidence tending to support every material fact found by the court, a motion for a new trial based on the insufficiency of the evidence to support the findings was properly overruled. p. 16.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—A brief, though subject to criticism, is sufficient, if it shows a good faith effort to comply with the rules of court and is in substantial conformity with the same as to the questions presented for determination, p. 19.</p> <p>2. Exemptions. — Execution Sales. — Statutes.—Construction. — Although §756 Burns 1908, §714 R. S. 1881, providing that, to be entitled to the benefit of exemption from execution sale, the judgment debtor should make out and deliver to the officer holding the writ a sworn inventory of all his property, the law that exempts from sale on execution is to be liberally construed and its application is not limited to cases which fall directly within its strict letter, but is extended to all cases that come within the spirit and equity of the law, so as to promote and secure the object intended, p. 20.</p> <p>3. Exemptions. — Execution Sale. — Transfer of Property Exempt.— Where a judgment is founded on contract, the judgment debtor, if a resident householder, and his entire estate does not exceed in value the amount which he is authorized to claim as exempt from sale on such judgment, may, before such sale occurs, sell or dispose of any or all of his property and the purchaser will take it free from the lien of the judgment, or the lien of any execution that may have been issued thereon, p. 21.</p> <p>4. Exemptions. — Execution Sale. — Transfer of Exempt Beal Estate. — Bights of Purchaser. — Quieting Title. — Where a judgment debtor on a judgment founded on contract, who is a resident householder and whose entire estate does not exceed in value the amount which he is authorized to claim as exempt from sale oñ such judgment, disposes of any of his real estate before such sale occurs, the purchaser may maintain an action to quiet his title against the lien of the judgment, if he commences his suit before such real estate is sold under the judgment, p. 21.</p> <p>5. Exemptions. — Bigh ts of Purchaser of Exempt Beal Estate. — ■ Quieting Title — Equitable Principles. — >The right of the purchaser of real estate, which the vendor could have claimed as exempt from sale on execution, to maintain an action commenced before . the execution sale to quiet his title thereto as against the judgment lien rests on equitable principles, p. 22.</p> <p>6. Exemptions. — Quietim,g Title to Property Purchased Before Ex•ecution Sale — Complaint.—Sufficiency—Allegations as to Schedule. — In an action brought before execution sale to quiet title to real estate purchased from, a judgment debtor, and which such debtor could have claimed as exempt from sale on execution, a complaint alleging that such judgment “is not and at no time has been a lien upon said real estate, or upon any interest therein,” was sufficient without alleging that plaintiff had filed a schedule showing the value of the debtor’s property, since the filing of such schedule is not essential to maintaining the action. p. 22.</p> <p>7. Appeal. — Review.—Objection to Complaint. — Ruling on Demurrer. — Alleged error in overruling a demurrer to a complaint, is not available where the objection on which it was based could have been cured in the trial court by a motion to make the complaint more specific, p. 22.</p> <p>8. Exemptions. — Quieting Title to Property Purchased Before Execution Sale. — Complaint.-—Evidence.—Admissibility.—In an action brought before execution sale to quiet title to real estate purchased from tiie judgment debtor, evidence of the value of the debtor’s property was admissible under the allegations of the complaint that the judgment was not and had at no time been a lien on such real estate, p. 22.</p> <p>9. Appeal. — Review.—Evidence.—Bindings.—If there is any evidence to sustain the finding of the trial court, the judgment will not be reversed on the evidence, p. 23.</p> <p>10. Exemptions. — Quieting Title to Property Purchased Before Execution Sale. — Evidence.—Sufficiency.—In an action brought before execution sale to quiet title to real estate purchased from the judgment debtor, evidence showing that the debtor’s interest in real property was worth less than $600 and that he had no unincumbered personal property, but not showing that he did not have incumbered personal property of sufficient value to defeat his claim to exemption, is insufficient to sustain, a finding and judgment for plaintiff, p. 23.</p>

From Hancock Circuit Court; Robert L. Mason, Judge. Action by the State of Indiana, on the relation of Sadie Shatto and others, against Thomas Lawlor and others. From a judgment for relators, the defendants appeal.

<p>1. Carriers. — Injury to Passengers. — Verdict.—Answers to Interrogatories. — In a passenger’s action against a railroad company for injuries sustained while alighting from a train, answers to interrogatories that the train did not stop a reasonable time for plaintiff to alight, that it was moving when she reached the coach, platform, that its speed was three miles an hour and was increasing as she descended the steps, that there was an unusual jerk of the train while she was on the coach steps, that she went down the steps for the purpose of alighting and at the time was confused and excited, that she did not step off the train, but was forced to jump by a lurch of the coach, and that she was not thrown from the coach by a sudden or violent movement of the train, are not in irreconcilable conflict with a verdict for plaintiff. pp. 38,39.</p> <p>2. Trial. — General Verdict. — Scope md Effect. — The general verdict covers the whole issue and solves every material fact against the party against whom it is rendered, p. 38.</p> <p>3. Trial. — General Verdict. — Answers to Interrogatories. — Control. —To enable a party against whom a general verdict is rendered to successfully interpose the special findings on particular questions of fact, as ground for judgment in his favor, such special findings must stand in such clear antagonism to the general verdict that the two cannot coexist, p. 38.</p> <p>4. Appeal. — Review.—Presumptions—General Verdict. — Answers to Interrogatories. — All reasoflable presumptions will be indulged in favor of the general verdict and against the answers to interrogatories, and if the general verdict thus aided is not in irreconcilable conflict with such answers, it must stand, p. 39.</p> <p>5. Carriers. — Injury to Passengers. — Instructions.—Care Required. —In a passenger’s action for personal injuries sustained in alighting from a train, an instruction that it was the duty of those in charge of the train to see and know at the time that no passenger was in the act of alighting before signaling the engineer and putting the train in motion, was erroneous in that it imposes a higher duty than'the law exacts and does not distinguish between the duty to be performed and the care required in its performance. p. 39.</p> <p>6. Appeal. — Review.—Harmless Error. — Instructions.—Where it appears that a verdict was returned on one of two charges of negligence contained in the complaint, the giving of an erroneous instruction applicable only to the other charge, is harmless, p. 40.</p> <p>7. Carriers. — Injury to Passengers. — Duty to Passenger Alighting From Tram — A railroad company owes to its passenger the duty of stopping the train a reasonable time to enable the passenger to alight before again putting the train in motion, and the failure to perform such duty is negligence and renders the company liable for injuries proximately' resulting, p. 40.</p> <p>8. Carriers. — Injury to Passengers. — Answers to Interrogatories. —Instructions.—Harmless Error. — Where, in a passenger’s action for injuries sustained in alighting from a train, it appears from the jury’s answers to interrogatories that the proximate cause of the injury was the starting of the train before plaintiff had time to alight, and the lurching of the same which forced plaintiff to jump, an erroneous instruction applicable only to the alleged negligence of defendant in not having a servant on the ground or platform when plaintiff attempted to alight, was harmless, p. 40.</p> <p>9. Carriebs. — Injury to Passengers. — Instructions.—Refusal of Instructions. — In a passenger’s action for injuries sustained in alighting from a train, where the court instructed that if the train was in motion when the plaintiff reached the car door, she should have returned to her seat and remained there until the car stopped, that a passenger is as much bound to use care to avoid injury as a carrier is -bound to use care to prevent injury, and must act as a person of ordinary prudence would act under the circumstances in order to recover, the refusal of defendant’s requested instructions that on the facts detailed plaintiff, as a matter of law, was guilty of contributory negligence, and that if a reasonably prudent woman, under the circumstances detailed, would not have encountered the risk that plaintiff encountered in attempting to alight, plaintiff was guilty of contributory negligence, was not erroneous, p. 41"</p>

<p>From Greene Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by Jesse Figgins against Elizabeth Figgins and others. From a judgment for defendants, the plaintiff appeals.</p>

From Hancock Circuit Court; Robert L. Mason, Judge. Action by George Hack, administrator of the estate of Henry G. Reasoner, deceased, against Charles L. Henry, receiver of the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.

<p>Prom Warren Circuit Court; J. T. Samderson, Judge.</p> <p>Action by John Holz against Elizabeth Larch and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>Prom Circuit Court of Marion County (17,542); Charles Bemster, Judge.</p> <p>Action by Mary F. Sloan against Tbe Yalentine Company.</p> <p>From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by "William P. Jester and another against John F. Judy and another. From a judgment for plaintiffs, the defendant, John F. Judy, appeals.</p>

From Starke Circuit Court; Francis J. Vurpillat, Judge. Action by Mary E. Foust, administratrix of tbe estate of Samuel A. Foust, deceased, against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal. — Right to Appeal. — Acceptance of Benefits of Judgment. — A party cannot prosecute an appeal and thereby reverse a judgment the benefits of which, with full knowledge of the facts, he has voluntarily accepted, p. 103.</p> <p>2. Appeal. — Right to Appeal. — Acceptance of Benefits of Judgment. — Guardian and Ward. — Partition.—Where; in a partition proceeding against a minor defendant, and in which the guardian was not a party, such minor filed a cross-complaint seeking to establish a trust in the property, and judgment was against him on such cross-complaint and decreeing partition as prayed in the complaint, the act of defendant’s guardian in taking possession of the land set off to such defendant and deriving the benefit therefrom did not operate to estop the defendant from prosecuting an appeal, p. 104.</p> <p>3. Appeal. — Waiver of Error. — Briefs.—An assignment of errors questioning the sufficiency of answers is waived, where appellant, in his brief, has failed to point out any objections thereto, p. 104.</p> <p>4. Trusts.— Resulting Trusts. — -Evidence.—Sufficiency.—Evidence showing that a husband and wife joined in a conveyance of the wife’s land, and about the same time bought another farm which was taken in the name of the husband, and that some part of the proceeds of the first farm was used in the purchase of the second one, is in itself insufficient to show a resulting trust in favor of the wife, or her heirs, in the land so purchased in the name of the husband, under the provisions of §4019 Burns 1908, §2976 R. S. 1881. p. 104.</p> <p>5. Trusts. — Resulting Trusts. — Enforcement.—Lapse of Time.— Equity will not enforce an alleged trust, the nature of which is rendered obscure by time and acquiescence, p. 106.</p> <p>6. Trusts. — Resulting Trusts. — Creation.—-A resulting trust must arise, if at all, at the time of the execution of the conveyance. p. 106.</p> <p>7. Trusts. — Resulting Trusts. — Creation.—Defendant in a partition suit, who sought by cross-complaint to establish a trust in the property involved, liad the burden of proving the material averments of such cross-complaint, p. 106.</p> <p>S. Tbusts. — Enforcement.—Limitation of Actions.- — Although the statute of limitations does not commence to run against a trust until it has been openly disavowed, evidence, in an action to establish a resulting trust, from which the trial court may have inferred that if the trust had ever in fact been created, the acts and conduct of the holder of the legal title since 1878 were such as to indicate an open disavowal, authorized a recovery on answers setting up the twenty years’ statute of limitations, p. 107.</p>

<p>1. Appeal. — Review.—Evidence.—Judgment.—A judgment will not be disturbed on the evidence if there is some evidence from which the trial court may have found facts sufficient to support the same. p. 110.</p> <p>2. Mechanics’ Liens. — Foreclosure.—Complaint.—Amendment.— Under §§400-403 Bums 1908, §§391-394 R. S. 1881, providing for the amendment of pleadings, the trial court has wide discretion in so doing, and since §8297 Burns 1908, Acts 1889 p. 257, relating to the filing of notice of an intention to hold a mechanic’s lien, provides that the description of the lot or land in such notice shall be sufficient if from such description, or any reference therein, the lot or land can be identified, the action of the trial court, in an action to foreclose a mechanic’s lien on land described in the notice as lot 31, in permitting the amendment of the complaint to show lot 32 instead, was not erroneous, in the absence of a showing that defendants were thereby in any way surprised, prejudiced or deprived of any right, p. 110.</p> <p>3. Mechanics’ Liens. — Notice.—Defective Description. — Amendment. — A defective description in a notice of mechanics’ lien may be so amended as to make it good if the notice contains any reference, which, aided by extrinsic evidence, may correct the description. p. 111.</p> <p>4. Pleading. — Complaint.—Sufficiency.—Initial Attack on Appeal. —A complaint, as against an attack made for the first time after judgment, is sufficient if it states facts sufficient to bar another suit for the same cause and does not wholly omit any essential averment, p. 111.</p> <p>5. Mechanics’ Liens. — Foreclosure.—Parties.—Complaint.—In an action to foreclose a mechanics’ lien for labor in the erection of a dwelling house, one who had a contract with the owner for the purchase of the property, and under whose direction the house was built, was a proper party defendant, and a complaint which was sufficient to make him a party to answer to his interest will be held sufficient as against initial attack on appeal to sustain a decree of foreclosure against him. p. 111.</p>

Prom Superior Court of Marion County (21,462); Charles J. Orbison, Judge. Petition by Henry W. Bullock against Charles B. Clarke, receiver, and others, for an allowance for attorney fees to be paid out of funds in the hands of the receiver. From a judgment refusing the allowance, the petitioner appeals.

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by Charles S. McNown, administrator of the estate of Luella B. McNown, deceased, against The Wabash Railroad Company and others. From a judgment for plaintiff, the defendant railroad company appeals.'

<p>From Floyd Circuit Court; Joseph E. Shea, Special Judge.</p> <p>Action by Tbomas L. Fees against the American Car and Foundry Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Vanderburgh. Circuit Court; G. A. DeBruler, Judge.</p> <p>Action by Louis E. Fricke, Trustee in Bankruptcy of the Evansville Implement and Farmers Supply Company, against Nicholas Angemeier and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>Prom Dubois Circuit Court; John L. Bretz, Judge.</p> <p>Action by Ferdinand Vollmer against the Board of Commissioners of the County of Dubois. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Pleading. — Oomplamt.—Sufficiency.—Negligence.—A complain! against a railroad company for damages resulting to plaintiff’s land from the obstruction of a natural watercourse and the excavation of a new channel through which the waters of the stream were diverted, is not objectionable for failure to aver a negligent construction of the artificial waterway, where facts are averred from which no other inference than that of negligence can be drawn, p. 159.</p> <p>2. Appeal. — Assignment of Errors. — Questions RevieioaWe. — Sufficiency of Oomplamt. — No question as to the sufficiency of the complaint is presented on appeal, where the assignment of errors does not show that any error is predicated upon the legal sufficiency of the complaint or upon appellant’s exception to the action of the trial court in overruling a demurrer thereto, p. 159.</p> <p>3. Appeal. — Assignment of Errors. — Questions ReviewaWe. — The assignment of errors constitutes appellant’s complaint on appeal, and only such questions will be considered as are thereby presented. p. 160.</p> <p>4. Railroads. — Construction.—Diversion of Watercourse. — Duty of Railroad Company. — Although under the grant of power given by subd. 5, §5195 Burns 1908, §3903 R. S. 1881, a railroad company may fill up a natural watercourse and lay its tracks on the embankment constructed in the bed of such stream, it is charged by the same section with the duty of providing a waterway no less efficient than the one appropriated, p. 160.</p> <p>5. Appeal. — Review.—Admission of Evidence. — Where, in an action for damages caused by the filling of a watercourse and diverting the water into an artificial channel, appellee had testified that the artificial channel was not of sufficient size and capacity to accommodate the water formerly flowing through the creek, and that it was enlarged by washing, that a stone wall had washed out and earth and rock deposited in the creek filling it four or five feet, the court did not err in permitting appellee to answer a question asking him to state, if he knew, what caused the filling at another point in the creek, since the question, taken in connection with the examination immediately preceding, called for a fact and not a conclusion, p. 160.</p> <p>6. Trial. — Interrogatories to Jury. — Propriety.—Action for Damages. — In an action against a railroad company for damages resulting from the filling of a creek and diverting the water through a new channel constructed by defendant, the court did not err in refusing to submit to the jury interrogatories requested by defendant asking the market value per acre of plaintiff’s bottom lands both before and after the filling and relocation of the creek, and asking the market value per acre of the farm other than the bottom lands both before and after such filling and relocation, since the plaintiff could not under the issues prove his damages piecemeal and the ultimate fact to be found was the damage to the farm as an entirety, pp. 161,162.</p> <p>7. Witnesses. — Cross-Examination.—On cross-examination a party is clearly within his rights in asking a witness, who has testified as to values, any question pertinent to the direct examination which tends to test the knowledge of values as given by such witness, p. 161.</p> <p>8. Damages. — Trial.—Interrogatories to Jury. — Itemizing Damages. —As a general rule it is improper in tort actions to require the jury to answer interrogatories itemizing the elements of damage, where it is unnecessary to plead such elements of damage. p. 162.</p> <p>9. Trial. — Verdict.—Interrogatories to Jury. — Duty of Court. — It is the duty of the court to require the jury to answer pertinent and material interrogatories when properly requested in case a general verdict is returned, and, in a proper ease, the court’s refusal to do so is reversible error, p. 162.</p> <p>10. Trial. — Verdict.—Special Findings. — Object of Special Findings. — The object of the special finding is to control the general verdict, if, under the law the particular facts found are inconsistent therewith, and also to test the .correctness of such general verdict, p. 162.</p> <p>11. Trial. — Verdict.—Answers to Interrogatories. — A. general verdict is to be found upon all the evidence, and each interrogatory is to be answered from the evidence without reference to the general verdict or to the answer to any other interrogatory. p. 162.</p>

<p>From Superior Court of Vigo County; John E. Cox, Judge.</p> <p>Action by Charles L. Smith against Milton Certain and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From "Warren Circuit Court; James T. Saunderson, Judge.</p> <p>Action by Robert Voliva against the Lake Erie and Western Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Special Findings. — Sufficiency.—Description of Real Estate. — The special findings of the court in a proceeding to disannex certain lands from a town, in which a portion of petitioner’s land was so erroneously described as to render the same impossible of location, are insufficient to support the conclusions of law and the judgment rendered thereon that a portion of petitioner’s land be disannexed and refusing disannexation as to the remainder, p. 181.</p> <p>2. Trial. — Special Findings. — Sufficiency of Real Estate Descriptions. — The rule that a description of real estate is insufficient, if an officer is unable to locate the land without the exercise of an arbitrary discretion, is applicable to the description of land in a special finding of facts rendered by the court, p. 183.</p> <p>3. Appeal. — Review.—Special Findings. — Inferences.—The court on appeal cannot indulge in inferences to aid special findings of fact. p. 183.</p>

<p>From Vanderburgh Circuit Court; Curran A. DeBruler, Judge.</p> <p>Action by The Peoples Savings Bank against Charles P. Beard, auditor of Vanderburgh County, and another. From a judgment for plaintiff, the defendants appeal.</p>

From Vanderburgh Circuit Court; A. C. Hawkins, Judge Pro Tem. Action by Louisa Holtz and others against the Mercantile Trust and Savings Company, administrator with the will annexed of the estate of Ferdinand Holtz, deceased, and another. From a judgment for defendants, the plaintiffs appeal.

<p>From Huntington Circuit CourtSamuel E. Cook, Judge.</p> <p>Action by Arbie M. Huffman against Milton W. Huffman. From a judgment for plaintiff, the plaintiff appeals.</p>

<p>Prom Randolph Circuit Court; John W. Many, Special Judge.</p> <p>Action by Ebenezer S. Jones against William North. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Marion County (80229) ; Charles J. Orbison, Judge Pro Tem.</p> <p>Action by tbe Franklin National Bank against Harry Isgrig and another. From a judgment for plaintiff, the defendant, Harry Isgrig, appeals.</p>

<p>1. Appeal. — Review.—Evidence.—Sufficiency.—Where the evidence is conflicting, and it cannot be said that there was no evidence upon which the court could base its decision, such decision will not be disturbed on appeal on the alleged insufficiency of the evidence, p. 224.</p> <p>2. Evidence. — Admissibility.—Surveys.—Evidence of certain surveys would be inadmissible over proper objections on the ground that neither the records of the surveys, nor any other evidence introduced, showed that any of the adjacent landowners had any notice of any of said surveys, or that they in any way participated in or consented to the making of such -surveys, p. 224.</p> <p>3. Appeal. — Presentation of Questions for Review. — Objections to Evidence. — Appellant can take no advantage of the erroneous admission of evidence by the trial court where the objection presented on appeal was not presented to the trial court and was entirely different from the only objection presented at the trial, p. 224.</p> <p>4. Trial. — Admission of Improper Evidence Without Objection.— Consideration. — When evidence, which might have been excluded if proper objection had been made, has been allowed to go before the court, it may be considered for whatever probative value it may have. p. 226.</p>

From Wayne Circuit Court; Henry 0. Fox, Judge. Action by Russel Cbamness on a claim filed against tbe estate of Sarah Chamness, deceased, and disallowed by John W. Chamness, administrator. From a judgment for defendant, the plaintiff appeals.

<p>From Adams Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by The Citizens Telephone Company against The Fort Wayne and Springfield Railway Company. From a judgment lor defendant, the plaintiff appeals.</p>

<p>From Tipton Circuit Court; Leroy B. Nash, Judge.</p> <p>Action by Ruel G-. Sullivan against the Indiana Union Traction Company. From a judgment for plaintiff, tbe defendant appeals.</p>

From Marion Circuit Court (17,936); Charles Bemster, Judge. Action by George Hammond, administrator of tbe estate of John Whitely, deceased, against Kingan & Company, Limited, and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Judgment. — Construction.—In construing a judgment reference may be had to the pleadings and to the entire record, p. 261.</p> <p>2. Nuisance. — Abatement. — Judgment. — Sufficiency.—Where the complaint in an action for the maintenance of a private nuisance sufficiently described such nuisance, a judgment reciting that “the nuisance set out and described in plaintiff’s complaint be abated”, is not void for uncertainty, since -it may be made certain by reference to the complaint, p.261.</p> <p>3. Appeal. — Review.—Judgment.—Failure to Object Below.. — No objection can be presented on appeal to the rendition of a judgment on the verdict, unless by objection in the court below the mistake or defect was pointed out. p.262.</p> <p>4. Nuisance. — Action to Abate.- — Evidence.—Statute of Limitations. — In an action for the maintenance of a private nuisance, brought under §291 Bums 1908, §289 R. S. 1881, defining a nuisance to be that which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, evidence that a gutter, into which defendants poured soapsuds and other offensive matter, had been in existence for about fifty years and that defendants had obtained a prescriptive right to maintain the gutter, is insufficient to show that the action is barred by the statute of limitations, where the nuisance shown, was a continuing one. p. 262.</p> <p>5. Nuisance. — Abatement.—Limitation of Actions. — Application of Statute. — Where a nuisance is of a character so permanent that it may fairly be said that the entire damage accrues in the first instance, the statute of limitations begins to run from that time; but if the nuisance may be said to continue from day to day, and create a fresh injury each day, there still may be a right of action for the injuries created within the last six years, though the original right of action has been lost, p.262.</p> <p>6. Drains. — Prescriptive Bight. — Evidence.—In an action for the abatement of a nuisance consisting of the pouring of soapsuds and other offensive matter into a gutter, defendant’s claim to a prescriptive right to use the gutter, even if obtainable under some circumstances, cannot be sustained, where there was no evidence that such drain had been used for that purpose prior to six years before the bringing of the action, p.263.</p>

<p>From Dubois Circuit Court; John L. Brets, Judge.</p> <p>Action by Daniel W. Wiggs and others against John B. Alvey. From a judgment for plaintiffs, the defendant appeals.</p>

Prom Superior Court of Marion County (79,277); Clarence E. Weir, Judge. Action by Libbie Epstein, by her next friend, Ida Epstein, against Charles L. Henry, receiver of the Indianapolis and Cincinnati Traction Company. Prom a judgment for plaintiff, the defendant appeals.

<p>Prom Hamilton Circuit Court; John F. Neal, Special Judge.</p> <p>Action by tbe Ludowici Celadon Company against William V. Rooker and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Porter Superior Court; A. D. Bartholomew, Judge.</p> <p>Action by Egbert A. Peck against Tbe Baltimore and Ohio Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Injunction. — Inadequacy of Remedy at Law.' — Complaint.— Sufficiency. — A complaint, alleging that plaintiff is the owner of certain real estate, a part of which is covered by water on which ice forms, that defendant is engaged in cutting and removing ice, that from time to time in past years the defendant has cut and removed ice on plaintiff’s land, and is now engaged in cutting and removing ice therefrom, and that unless defendant is restrained, its acts will make necessary a multiplicity of suits, and that the enforcement of plaintiff’s rights at law or by criminal prosecutions would produce breaches of the peace and other improper conditions, states facts showing that plaintiff has no adequate remedy at law, and is sufficient to entitle him to injunctive relief. p. 291.</p> <p>2. Injunction. — Right to Relief. — Continuous Trespass. — Inadequacy of Legal Remedy. — Injunctive relief may .be granted, even though plaintiff may have a legal remedy, if the trespass is continuous in its nature, or consists of constantly recurring acts, which would render resort to the legal remedy impractical because of a multiplicity of suits and the consequent smallness of the damages that could be recovered in each case when compared with the expense entailed, p. 291.</p> <p>3. Couets. — Rules.—Valdity.—Courts have the inherent power to make rules for the proper conduct of their business, and which do not conflict with the statutes, and such rules, when made, are obligatory both upon court and litigants, p. 292.</p> <p>4. Ventje. — Change of Venue. — Time of Application. — Where the rules of the trial court provided that a motion for change of venue must be filed three days before the date of trial, except when it appears by affidavit that the reasons for the change were not known before that time, a defendant, though not served with summons, was not entitled to a change of venue in the absence of a showing why the application was not filed within the prescribed time, where the record disclosed defendant’s prior appearance by counsel and a continuance of the cause by agreement of the parties, p. 292.</p> <p>5. Trespass. — Trespass to Beal Estate. — Elements of Becovery.— Title. — Plaintiff need not prove title to real estate in order to recover for trespass, proof of possession being sufficient, p. 294.</p> <p>C. Names. — Idem Sonans. — Names Within Buie. — Courts look to the sound of names rather than to their spelling, and the names “Valentine Schuetz” and “Falladine Schütz” are idem sonans, so that it will be presumed that “Valentine Schuetz”, whose land was divided in a partition proceeding, was “Falladine Schütz” to whom the land had been deeded, p.295.</p> <p>7. Boundaries. — Land Bordering on Lalce. — Conveyance by Plat. — . Where land bordering on a lake has actually been surveyed, platted and conveyed as a “lot” containing a number of acres of land, the grantee takes the land under the water far enough from shore to make out the full subdivision in which the land is situated. pp. 295, 300.</p> <p>8. Partition. — Conveyances.—Title Acquired. — Where the lands of a decedent were partly covered by the waters of a lake, and the commissioners appointed to partition the same among those to whom it had been devised, divided the land by a road into a large tract not fronting on the water’s edge, and into a small tract adjoining the lake, and gave to each devisee a share in the large tract and also a strip having water on a part thereof, and in their report described the lands so set apart as “tracts” instead of by metes and bounds it will be presumed that such commissioners partitioned all of the land of the owner, so that the devisees, in receiving land described as “tracts between the road and the lake”, thereby acquired the land under the waters of the lake. pp. 296, 297.</p> <p>9. Boundaries. — Land Bordering on Lalce. — Conveyance by Metes and Bounds. — If a description is by metes and bounds, and indicates the shore of a lake as one of the boundary lines, the deed conveys no rights to the land covered by the waters of the lake, p. 297.</p>

<p>From Pike Circuit Court; John L. Brets, Judge.</p> <p>Action by Harley R. Snyder against Sol Frank and another. From a judgment for plaintiff, the plaintiff appeals.</p>

<p>From Jay Circuit Court; Henry C. Fox, Special Judge.</p> <p>Action by Jennie May Boyd against Fred Bimel and others. From a judgment for plaintiff, the defendants, except Lewis G. Walling, appeal.</p>

Prom Clark Circuit Court; William C. Viz, Special Judge. Action by Jennie Inzer, administratrix of the estate of John Inzer, deceased, against the American Car and Foundry Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Divorce. — Alimony.—Discretion of Court. — Tbe amount of alimony to be awarded in each particular case is largely witbin tbe discretion of tbe trial court, and, unless an abuse of this discretion is shown, a .cause will not be reversed on appeal on tbe ground that the alimony allowed is excessive., p. 326.</p>

<p>From Fayette Circuit Court; George L. Gray, Judge.</p> <p>Action by Mary L. Myers and another against Emery Manlove. From a judgment for defendant, the plaintiffs appeal.</p>

<p>1. Subrogation.— Volunteers. — PubUo Improvements. — Contracts. —Compensation.—Assignment.—One who pays the debt of a municipal contractor at his request, or who advances or loans him money with which to carry on the contract, is not a mere volunteer, and the payment of such debt or the making of such advances will support an assignment of the contractor’s compensation. p. 339.</p> <p>2. Subrogation. — Payment by Surety. — A surety seeking the benefit of subrogation must show that he has paid the obligation for which his principal was primarily liable, p. 340.</p> <p>3. Municipal Corporations. — PubUo Improvements. — Contractor's Bond. — Bights of Surety. — Subrogation.—Diligence.—A surety on the bond of a municipal contractor for the construction of a public sewer, who failed to assert its rights to be subrogated to the money in the hands of the city until long after it had been assigned, and material men had brought an action against the surety, is barred by its laches from asserting a right to be subrogated to such money, since subrogation is founded in equity, and before equity may be invoked for purposes of subrogation, diligence must be shown, p. 341.</p> <p>4. Municipal Corporations. — Public Improvements. — Contractor’s Bond. — Discharge of Surety. — A surety on the bond of a municipal contractor for the construction of a public improvement is not discharged on the approval of the final assessment roll, and an action on the bond may thereafter be maintained against such surety, p. 343.</p> <p>5. Municipal Corporations. — Public Improvements. — Contractor's Bond. — Discharge of Surety. — The surety on the bond of a municipal contractor for the construction of a public improvement is not discharged by the failure of the city to require evidence of the payment'of all hills before accepting the work and approving the assessment roll, as contemplated by the specifications and by the contract and bond. p. 343.</p>

<p>1. Trial. — Special Findings. — Fadlure to Find Essential Fact.— Where the facts are specially found, the failure to find a material fact is equivalent to a finding against the party having the burden of proving same. p. 347.</p> <p>2. Subrogation. — Right to Subrogation. — Volimteer.—Subrogation is a creature of equity, but it is not applicable in favor of one who has, officiously and as a mere volunteer, paid the debt of another, for which neither he nor his property was answerable, and it is not. allowed where it would work any injustice to the rights of others, p. 348.</p> <p>3. Subrogation. — Right to Subrogation. — The fact that money is furnished to pay off existing liens, or for like purposes, on new security which afterwards proves to be defective or insufficient, is not a sufficient showing to give to such person the right of subrogation under the liens or claims so paid, p.353.</p> <p>4. Subrogation. — Superiority of Equities. — Where there is no superior equity, or where the equities are equal, subrogation cannot be successfully invoked, p. 354.</p> <p>5. Mortgages. — Judgment Lien. — Subrogation.—One’s claim to subrogation under a mortgage, for the payment of which he furnished the money, taking to himself a new mortgage, is not justified by the fact that the holder of a judgment lien junior to such original mortgage is not harmed thereby, p. 354.</p> <p>6. Mortgages. — Judgment Lien. — One furnishing money for the payment of another’s mortgage, and taking to himself a mortgage as security for the money advanced, is charged with knowledge that judgment and other liens may have attached after the execution of the original mortgage, and which, upon its satisfaction, will become prior liens to his mortgage, p. 354.</p> <p>7. Subrogation. — Riglit to Subrogation. — Purchaser of Mortgage. —Where, subsequent to the execution of a mortgage on property, a judgment lien was acquired against the property, and thereafter a depositor of the bank holding such mortgage took an assignment of mortgage, which was reported to the mortgagor, who consented thereto provided the interest rate be reduced, which was done, and a new mortgage was thereupon made to such depositor who released the original mortgage of record, such depositor did not become subrogated to the rights of the bank so as to make his rights under the second mortgage superior to the judgment lien, and consequently the purchaser of the land, who assumed to pay such subsequent mortgage, acquired no right of subrogation under such original mortgage, p. 364.</p>

<p>Prom Daviess Circuit Court; Milton S. Hastings, Special Judge.</p> <p>Action by Ellen P. Clark against James J. Kirklin. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Putnam Circuit Court; John M. Rawley, Judge.</p> <p>Action by Oscar Latham against the Terre Haute, Indianapolis and Eastern Traction Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Lake Circuit Court; Willis C. McMahan, Judge. Application by John Peterson to be relieved from a judgment taken by default in favor of Henry P. Downey. Prom a judgment denying the application, the applicant appeals.

<p>From Marion Circuit Court (.18,750); Charles Bemster, Judge.</p> <p>Action by the Indiana Lighting Fixture Company and others against Woodburn Masson. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Porter Circuit Court; Willis G. McMahan, Judge.</p> <p>Action by Herman Daun, administrator of tbe estate of Edward Langman, deceased, against The Chicago, Lake Shore and South Bend Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Grant Superior Court; Robert M. VanAtta, Judge.</p> <p>Action by the Wabash Loan and Trust Company against Katherine M. Guynn and another. From a judgment for plaintiff, the defendant, Katherine M. Guynn, appeals.</p>

<p>1. Master and Servant. — Injuries to Servant — Safety Appliances. • — Complaint.—"Dust.”—A complaint charging defendant’s failure to equip its emery wheel with an exhaust fan as required by the factory act (§8029 Burns 1908, Acts 1899 p. 231), and alleging that a large number of small and irregular particles, of which the wheel was composed, became dislodged therefrom in the form of dust and were projected in the form of dust violently from the wheel into the air, and that particles thus thrown off in the form of dnst struck plaintiff’s eye and produced the injury complained of, is not objectionable on the ground that it shows that the injury was not caused by dust, but by small particles of the wheel thrown off in its use, since if the particles were so small and fine that an exhaust fan would have carried them away and prevented the injury, they may properly be regarded as “dust” within the meaning of the statute, p. 402.</p> <p>2. Master and Servant.- — Safety Appliances. — Exhaust Fans.— Statutes. — The purpose of the statute (§8029 Burns 1908, Acts 1899 p. 231), requiring exhaust fans on emery wheels is to reduce the hazard incident to the operation of such wheels, p. 402.</p> <p>3. Trial. — Verdict.—Answers to Interrogatories. — Conflicting Answers. — Conflicting answers by the jury to interrogatories nullify each other and. do not affect the general verdict, p. 403.</p> <p>4. Trial. — Answers to Interrogatories. — Effect.—Answers by-the jury to interrogatories showing that a fact was not established with certainty, or that there was no possibility of the jury ascertaining such fact with certainty, do not amount to a finding that such fact was not established by a preponderance of the evidence, p. 404.</p> <p>5. Trial. — Interrogatories to Jury. — Construction.—If an interrogatory is doubtful in its meaning, the doubt will be resolved in favor of the general verdict, p. 404.</p> <p>6. Master and Servant. — Injuries to Servant. — Verdict.—Answers to Interrogatories. — A verdict for plaintiff in a servant’s action for personal injuries is not overcome by the jury’s answer to an interrogatory that the injury was purely accidental, where other answers show that the injury was due to the negligence of defendant, and it appears from the answers as a whole that the jury did not mean that the injury was “purely accidental” in the sense that it occurred without the fault of any one. p. 404.</p> <p>7. Master and Servant. — Injuries to Servant. — Choice of Methods of Work. — Right of Recovery. — Where there are two ways of performing a service, one of which is safe and the other dangerous, or one of which is more dangerous than the other, and the servant is aware of such facts, he will not, as a general rule, be permitted to recover damages from the master for injuries resulting from his voluntary adoption of the dangerous or more dangerous way. pp. 406, 407.</p> <p>8. Master and Servant. — Injuries to Servant. — Assumption of Risk. — A servant assumes all the usual and ordinary risks incident to the employment, and also the risk of any known dangers that may arise during the course of such employment, even though not usually incident thereto, so that where the servant knows of a condition which renders the performance of his duties hazardous, and voluntarily encounters it, he cannot recover for injuries thereby sustained, even though such danger was due to the master’s negligence, p. 406.</p> <p>9. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Care by Servant. — Where the injury is the result of one of the risks assumed, the servant cannot recover, regardless of the care or want of care on the part of such servant in encountering the danger, p. 406.</p> <p>10. Master and Servant. — Injuries to Servant. — Contributory Neg-. ligence. — Reasonable Care.” — The question of whether an injured party was guilty of contributory negligence depends upon whether he was exercising reasonable care at and immediately prior to the injury, that is such care as persons of ordinary prudence would exercise under the conditions and circumstances of the particular case. p. 408.</p> <p>11. Negligence. — Reasonable Care. — Jury Question. — The question of reasonable care is usually one of fact for the jury since it is only in cases where the facts are undisputed and are such that but a single inference may reasonably be drawn therefrom, that the court can determine as a matter of law that reasonable care was or was not exercised, p. 408.</p> <p>12. Master and Servant. — Injuries to Servant. — Choice of Methods of Work. — Contributory NegUgenoe. — Contributory negligence cannot be imputed to a servant from the mere fact that he chooses the more dangerous way or method of performing a duty when a safer method was open to his choice, but is a question for th'e jury, except where the servant’s choice exposed him to dangers so obvious that no reasonable man exercising ordinary care for his own safety would have encountered them, and there is no room for reasonable minds to differ upon the question, p. 408.</p> <p>13. -Master and Servant. — Injuries to Servant. — Violation of Statutory Duty. — Assumption of Risk. — Contributory Negligence. — Although a servant’s right to recover may be determined by the application of the doctrine of assumption of risk in eases where the danger created by the negligence of the master is one that can be assumed by the servant under his contract, where the negligence charged consists of the master’s violation of a statutory duty, assumption of risk does not apply, and the question must be determined by the principles of law relating to contributory negligence, p. 410.</p> <p>14. Master and Servant. — Injuries to Servant. — Choice of Methods of Work. — Contributory Negligence. — Anstoers to Interrogatories. — In an action by a servant to recover for injury to his eye caused by emery dust lodging therein while plaintiff was sharpening a tool on the emery wheel, where the negligence charged was the master’s failure to provide an exhaust fan to remove the dust, as provided by §8029 Burns 1908, Acts 1899 p. 231, and the jury’s answers to interrogatories showed that defendant had supplied the emery wheel to plaintiff to be used in sharpening his tools, that it was suitable for the purpose and that the superintendent had directed plaintiff to use it, it cannot be said as a matter of law that plaintiff was guilty of contributory negligence in using such emery wheel instead of making use of a tool room provided by the master wherein tools could be sharpened with more safety, p. 411.</p> <p>15. Master and Servant. — Injuries to Servant. — Evidence.—Sufficiency. — In a servant’s action for injuries to his eye caused by emery dust lodging therein while plaintiff was sharpening a tool on an emery wheel, where the complaint proceeded on the theory that plaintiff was employed as a machinist and that it was a part of his duties under such employment to keep his tools sharp by grinding them on the emery wheel which defendant had provided for that purpose, evidence showing that a part of plaintiff’s work was to sharpen the drills with which he worked and that he usually sharpened all his tools on such emery wheel, that the superintendent often saw him grinding tools on such wheel, and on one occasion had specially directed plaintiff to grind a drill thereon, is sufficient to show that plaintiff was acting within the scope of his employment at the time he received his injury, p. 411. .</p> <p>16. Master and Servant. — Injuries to Servant. — Choice of Metluods of "Worlc. — Contributory Negligence. — Evidence.—Where, in a servant’s action for injuries, the evidence shows that the Way adopted by plaintiff was one of the ways provided by the master, or at least a way recognized by him as a proper one, and there was evidence to justify the jury in finding that plaintiff was exercising ordinary care at the time of the injury, the verdict- for plaintiff cannot be disturbed on the ground that plaintiff was guilty of contributory negligence in choosing a dangerous way when a safer way had been provided by the master, p. 412.</p> <p>17. Master and Servant. — Injuries to Servant. — Proximate Cause. —Evidence.—Sufficiency.—In an action by a servant for injury to his eye occasioned by a particle of emery dust lodging therein, evidence showing that the emery wheel had not been equipped with an exhaust fan, that an exhaust fan would not carry away all particles of emery rebounding from the wheel, but that it would do so to some extent, and that plaintiff’s injury was caused by a minute particle of emery, was sufficient to warrant the jury in concluding that the failure to provide the exhaust fan was the proximate cause of the injury, although it was not expressly shown that the particle causing the injury was one that would have been removed by an exhaust fan had one been provided, p. 413.</p> <p>18. New Trial. — Answers to Interrogatories. — Evidence.—A new trial is not warranted on the ground that a fact found by an answer to an interrogatory is not sustained by the evidence, unless the fact is one which is essential to the general verdict. P* 415.</p> <p>19. Negligence. — Contributory Negligence. — Aggravation of Injuries. — Damages.—Subsequent negligence of an injured party which tends to aggravate the injury, although to be considered as affecting the measure of damages, does not bar a recovery of such damages as were occasioned by the original injury, p. 416.</p> <p>20. Appeal. — Revieio.—Instructions.—In an action by a servant for injury to his eye caused by a particle of emery dust, appellant cannot complain of the court’s failure to include a definition of “dust” in the instructions, if he failed to tender the court an instruction containing a proper definition, p. 410.</p> <p>21. Appeal. — Revieio.—Refusal of Instructions. — There is no error in refusal of instructions that are fully covered by instructions given, p. 416.</p> <p>22. Master and Servant. — Injwies to Servant. — Evidence.—Admissibility. — In an action for personal injuries by a servant whose eye was injured by a flying particle of emery from an emery wheel on which he was sharpening a drill, there was no error in the admission of testimony to prove that it was customary for the employes to sharpen their drills and other tools on the emery wheel at which plaintiff was working when he received the injury, p. 417.</p>

<p>Prom Payette Circuit Court; Will M. Sparks, Special Judge.</p> <p>Action by James A. Thompson against the East Hill Cemetery Company of Rushville. From a judgment for plaintiff, the defendant appeals.</p>

From Monroe Circuit Court; J ames B. Wilson, Judge. Action by Laiira A. Swaney against tbe Manufacturers Mutual Fire Insurance Company and Elva Pafford. From a judgment against tbe Insurance Company on tbe cross-complaint of its codefendant, Pafford, and subrogating plaintiff to bis rights to tbe amount of ber claim, tbe defendant Insurance Company appeals.

Prom Probate Court of Marion County (10,356); Frank B. Boss, Judge. Proceedings by Katherine Hammerle, widow of Peter Hammerle, deceased, to have the estate of decedent vested in her as worth less than $500. Prom a judgment vesting the estate in such widow, and denying the application of Alma E. Turner, a judgment creditor of decedent, for a reappraisement, this appeal is prosecuted.

From Dekalb Circuit Court; Emmett A. Brattan, Judge. Action between the St. Joseph Valley Railroad Company and the Raber & Lang Manufacturing Company and another. From a judgment for the latter, the former appeals.

From Vanderburgh Circuit Court; A. G. Hawkins, Judge Pro Tern. Action by James L. Rose against Henry L. Rose, his guardian, for the restoration of his property and the discharge of such guardian. From a judgment denying the relief and continuing the guardianship, the plaintiff appeals.

<p>Prom Whitley Circuit Court; Luke H. Wrigley, Judge.</p> <p>Action by the Union National Bank against the South Whitley Hoop Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Libel and Slander. — Complaint.—Innuendo.—A complaint for slander, where the words spoken are not slanderous per se, must show by innuendo, not only that the words were slanderously uttered, but were understood in the same slanderous sense by those in whose hearing they were spoken, p. 450.</p> <p>2. Libel and Slander. — Evidence.—Sufficiency.—In an action for slander, a verdict was properly directed for defendant, where the proof failed to establish any fact other than the speaking of certain words, not actionable per se. p. 451.</p> <p>3. Trial.. — Issues.—Burden of Proof. — An answer in general denial imposes on the plaintiff the burden of proving the material facts averred in the complaint by a fair preponderance of the evidence, p. 451.</p> <p>4. Libel and Slander. — Meaning of Words. — Jury Question. — The meaning of one charged with slander, as averred by an innuendo, is a question of fact to be decided by the jury. p. 451.</p>

<p>1. Appeal. — Briefs.—Statement of Nature of Action — The statement in appellants’ brief, that the action was brought by appellee to recover damages for loss of service, etc., of appellee’s wife, and is based upon the same alleged negligence upon which the action by appellee’s wife against appellants was predicated, is not a statement of the nature of the action in compliance with Rule 22 of the Supreme and Appellate Courts, p. 452.</p>

From Clark Circuit Court; Harry G. Montgomery, Judge. Action by Martha Senior, administratrix of the estate of Joseph Senior, deceased, against the New Albany Woolen Mills Company. From a judgment for plaintiff, the defendant appeals.

<p>From Howard Circuit Court; WilUam C. Purdum, Judge.</p> <p>Action by tbe Home Insurance Company of New York against the Toledo, St. Louis and Western Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Negligence.— Contributory Negligence.— Instructions. — Where instructions are given stating that plaintiff is entitled to recover on proof of the aUegations of the complaint, they may be cured by other instructions which fully cover the defense of contributory negligence, p. 469.</p> <p>2. Telegraphs and Telephones. — Operation.-—Maintenance.—Occupation of Streets. — Duty.-—It is the duty of a telephone company to exercise ordinary care to use and maintain its wires along and over streets so as to prevent the same from becoming dangerous, but such duty is not absolute, p. 469.</p> <p>3. Telegraphs and Telephones. — Operation.—Maintenance.—Instructions. — In an action for injuries to plaintiff’s eye caused by the defective condition of a telephone line along a street, the defect in an instruction imposing on defendant the absolute duty to so maintain its wires as not to obstruct or render dangerous the use of the street was not rendered harmless by the further statement, “if it negligently failed to so maintain its wires, then it must respond in damages.” p. 470.</p> <p>4. Telegraphs and Telephones. — Defective Wires. — Evidence.— Notice. — In order to recover for injuries caused by the defective condition of telephone wires along a highway, it is not necessary that the .evidence should establish the fact that defendant had actual notice of the defect, p. 470.</p> <p>5. Telegraphs and Telephones.- — Defective Wires. — Notice.—Instructions. — In an action for damages caused by a defective telephone wire along a street, an instruction from which the jury could infer that, if defendant had notice of the condition of the wires in any part of the town, it would be charged with notice of the defect at the point where plaintiff was injured, was erroneous. p. 471.</p> <p>6. Appeal. — Review.—Misconduct of Counsel. — Misconduct of counsel in a personal injury case in referring to the presence of the representative of an insurance company is not available for reversal, where the court withdrew the remarks from the jury and instructed it not to consider them. p. 471.</p>

<p>From Martin. Circuit Court; Hilewry Q. Houghton, Judge.</p> <p>Action by Tyrey E. Baker against Mitckeltree School Township, of Martin County. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Mechanics’ Liens. — Foreclosure.—Complaint. — Requirements. —Under the mechanics’ lien statute (Acts 1909 p. 295, §§1, 2), the complaint in an action to foreclose must show by its averments that the materials and labor for which a recovery is sought were furnished for the particular building against which the lien is asserted, and is insufficient if it merely shows that they were used in such building, p.479.</p> <p>2. Mechanics’ Liens.— Foreclosure.— Complaint. — Sufficiency.—A complaint for the foreclosure of a mechanic’s lien, averring that defendants are indebted to plaintiff for labor and material furnished by plaintiff at the special instance and request of defendants in the repair and construction of certain work upon a certain described building, sufficiently shows that the labor and materials were specially furnished for the particular building against which the lien is asserted, p. 480.</p> <p>3. Pleading. — Construction.—Inferences.—Where the facts averred in a pleading admit of but one inference, the court will indulge such inference in aid of the pleading, p. 481.</p> <p>4. Mechanics’ Liens. — • Foreclosure.— Complaint.— Sufficiency. — A complaint for the foreclosure of a mechanic’s lien for labor and material furnished “in the repair and construction of certain electrical work and electric wiring in and upon” a certain building, is not open to the objection that it fails to show affirmatively that such labor and material were furnished for the “erection, alteration, repair, or removal”, of the building, p. 481.</p> <p>5. Mechanics’ Liens. — Foreclosure.—Ownership of Property. — -In an action to foreclose a mechanic’s lien, defendants’ ownership of property against which the lien is asserted must be established, p. 483.</p> <p>6. Trial. — Issues.—Findings.—To sustain a decision for plaintiff, the special findings must cover all the facts essential to recovery under the issues tendered by his complaint, and the failure to find any such fact is the equivalent of a finding against him. p. 483.</p> <p>7. Appeal. — Review.—Findings.—Inferences.■—Where the primary facts found lead to but one conclusion, or where the facts found are of such a character that they necessitate the inference of an ultimate fact, such ultimate fact will be inferred and treated as found, p. 484.</p> <p>8. Appeal. — Review.—Findings.—Construction.—Intendments and presumptions are in favor of a finding rather than against it, and if, when read as a whole, such finding can be said to sustain the conclusions of law stated thereon, no error can be successfully predicated on the exceptions to such conclusions, p.484.</p> <p>9. Mechanics’ Liens.— Foreclosure. — Findings. — Ownership ~of Property. — In an action to foreclose a mechanic’s lien, where the only inference that could be drawn from the finding of facts as a whole, was that defendants, as trustees and devisees, became the owners of the real estate and continued as such and rented such real estate and contracted with plaintiff for the improvements thereon, received and accepted such Improvement as such owners, and offered and tendered payment of the amount they claimed to be due thereon, and litigated the difference between the amount of the tender and the amount sought to be recovered by plaintiff, the judgment for plaintiff will not be reversed because the court did not in express words find the ultimate fact of present ownership of the real estate in question, p. 484.</p> <p>10. Mechanics’ Liens.— Foreclosure.— Findings. — Sufficiency.—In an action for the foreclosure of a mechanic’s lien, a special finding that pursuant to contract the plaintiff furnished the labor and material, “that defendants accepted said repairs”, etc., and that a certain sum “remains due and unpaid at the time of the commencement of this action from the defendants herein to the plaintiff on account of the sale, furnishing and installation of the aforesaid wiring and electrical material in said building”, is not objectionable on the ground that it fails to state that any work or material was furnished for any building or that any building was repaired, p. 485.</p> <p>11. Appeal. — Review.—Fundings.—Sufficiency.—Where the findings in an action to foreclose a mechanic’s lien state that the work was completed on July 2, and that plaintiff’s notice was filed on September 14, “and within the sixty days from the date on which plaintiff completed the installation and wiring of said electrical apparatus in the said building”, it will be presumed, in the absence of the evidence from the record, and in view of the fact that the exhibit filed with the complaint shows items of labor and material furnished up to and including July 22, that the finding that the work was completed July 2 is an error in date, and the finding that the work was completed within the sixty days will control, p.486.</p> <p>12. Mechanics’ Liens. — Extent of Lien. — Separate Buildings.— Special Findings. — Under Acts 1909 p. 295, §§1, 2, providing that a lien shall extend to the interest of the owner of the lot or parcel of land on which the structure stands’ or with which it is connected, and that the entire land upon which any such building, etc., is situated, including that portion not covered therewith, shall be subject to lien, a declaration of a lien on the entire parcel of real estate was authorized on a special finding of facts showing the existence of three separate buildings on a designated lot and that the labor and material were furnished directly to defendants and all put into a building or buildings standing on such lot, and in the absence of any issues and supporting evidence that would require a restriction of the lien to a certain subdivision of the lot. (Hill v. Ryan [1876], 54 Ind. 118; Hill v. Braden [1876], 54 Ind. 72; Wilkerson v. Rush [1877], 57 Ind. 172; and McGrew v. McCarty [1881], 78 Ind. 496, distinguished.) p. 486.</p>

<p>1. Appeal.— Assignment of Errors.- — ■ Form.-— Sufficiency.— An assignment of errors which does not contain the full names of all the parties, or which contains the name of the appellee before the abbreviation “vs.” in the title of the cause, instead of that of the appellant, is not in compliance with the rules of court and is insufficient, p. 489.</p> <p>2. Appeal. — Determination.—Parties.—An appeal cannot be determined on its merits, unless the parties to the judgment appealed from are before the court, p. 489.</p> <p>3. Appeal. — Jurisdiction.—Assignment of Errors. — The assignment of errors is the appellant’s complaint, and jurisdiction is acquired only over the parties whose names appear therein, p. 489.</p>

<p>1. Assault and Battery. — Actions.—Instructions.—An instruction to return a verdict for plaintiff if the jury found that defendant requested plaintiff to have sexual intereouse with him, and in a rude and insolent manner, and with force, took hold of plaintiff, hugged and kissed her, felt her breasts and attempted to raise her clothing, and during all of that time implored her to yield to his solicitation, all of which was against her will, was not objectionable in failing to tell the jury that the assault and battery must be unlawful, since the facts stated in the instruction, if found to be true, constitute an assault and battery, and an assault and battery is necessarily unlawful, p. 491.</p> <p>2. Trial. — Province of Court and Jury. — In the trial of a civil cause it is the province of the jury to ascertain the facts, and not to determine whether such facts are unlawful, since it is for the court to determine the law of the case. p. 492.</p> <p>3. Assault and Battery. — Elements of Damage. — Instructions.— In an action for assault and battery, where there was no evidence that plaintiff had suffered loss of social position or injury to reputation, an instruction on the question of damages in an action for assault and battery which told the jury to assess such damages as the jurors thought plaintiff sustained as the direct result of defendant’s conduct without limiting the jury to a consideration of the damages shown by the evidence, and which stated, among other things, that plaintiff may recover for loss of social position and injury to her reputation, was erroneous. (Wolf v. Trmlcel [1885], 103 Ind. 355, and Kelley v. Kelley [1894], 8 Ind. App., 606, distinguished.) pp. 492, 493.</p> <p>4. Appeal.— Review.— Instructions.— Applicability to Evidence.— Instructions must be applicable to the evidence, and the giving of one which is not applicable is reversible error, unless it affirmatively appears that no harm resulted therefrom, p. 493.</p> <p>5. Assault and Battery. — Evidence.—Presumptions.—Reputation. —Social Position.- — It does not necessarily follow that one injured by an assault and battery has thereby suffered injury to reputation or loss of social position, but such loss, like other elements of damage, must be shown by evidence, p. 493.</p>

From Marion Circuit Court (21,746) ; Charles Bemster, Judge. Action by tbe State of Indiana, on tbe relation of tbe Board of Commissioners of tbe County of Marion, against Leonard M. Quill and others. Prom a judgment for defendants, the relator appeals.

<p>From the Howard Circuit Court; William C. Purdum, Judge.</p> <p>Action by the Armstrong-Landon Company against Henrietta Miller and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—A consideration of questions presented is not barred on the ground that appellant’s brief does not comply with Rule 22 of the Supreme and Appellate Courts, where the brief evidences a good faith effort to and does substantially comply therewith, p. 506.</p> <p>2. Covenants.— Warranty.— Breach.— Da/mages.— While upon a total breach of covenant a purchaser may generally recover the whole consideration money, where the breach is only partial he may recover pro tanto only, and where there is a failure of title to one of several tracts conveyed by the same deed, the vendee can recover the consideration paid for such particular tract, pp. 506, 509.</p> <p>3. Covenants. — Breach of Warranty. — Complaint.—Sufficiency.— Where a deed contained two separate independent clauses of conveyance, the first of which warranted title and mentioned a com sideration, and the second of which conveyed and quitclaimed with no consideration expressed therein, a complaint for a breach of the warranty, alleging that defendants, in consideration of the sum of money mentioned in the first clause, sold and conveyed the land described in such first clause, the title to which was defective, is sufficient, as against a demurrer, to overcome any possible presumption that the consideration expressed was intended as a consideration for all the land conveyed, and to present the question as one of fact for the jury. p. 507, 508.</p> <p>4. Deeds. — Consideration.—Evidence.—The consideration expressed in a deed is always subject to explanation, and when not correctly expressed, the true consideration may be alleged and proved, p. 508.</p> <p>5. Deeds. — Execution of Deed to Correct Prior Deed. — Effect.—A deed of correction relates back to the time of the original conveyance and takes the place of it, and the consideration of the first deed is the consideration for the subsequent deed. p. 509.</p> <p>6. Appeal. — Revieio.—Harmless Error. — Ruling on Demwrer to Reply. — Where a paragraph of reply amounted to no more than an argumentative denial, and the facts pleaded therein were admissible under the general denial, overruling a demurrer thereto was harmless, p. 509.</p> <p>7. Trial. — Pleadings.—Amendment to Conform to Proof. — Discretion of Court. — By §§400, 403, 405 Burns 1908, §§391, 394, 396 R. g. 1881, the trial court has a very wide discretion in the matter of amendments of the pleadings to conform to the proof, p. 510.</p> <p>8. Appeal. — Revieio.—Discretion of Court. — Amendment of Pleadings. — Where the record shows no application by appellant for a continuance after the court permitted the amendment of the complaint to conform to the proof, and the evidence is not in the record, it cannot be said that permitting such amendment was an abuse of the court’s discretion, p. 510.</p>

<p>Prom Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by John Poster against Kingan & Company, Limited. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Appeal. — Briefs.—Waiver of Errors. — Where appellant’s brief wholly fails to comply with Rule 22 of the Supreme and Appellate Courts requiring a statement of so much of the record as fully presents every error relied upon, such errors will be deemed waived, p. 520.</p> <p>2. Appeal.- — Questions Reviewctble. — Evidence.—Briefs.—Although not properly presented by appellant’s brief, the court is enabled to consider the questions on the motion for a new trial which relate to the sufficiency of the evidence, and the assignment that the verdict is contrary to law, where a sufficient statement of the evidence is contained in appellee’s brief, p. 521.</p> <p>3. Insurance. — Fire Insurance. — Condition Avoiding Policy.— Construction. — Waiver.—A provision in a fire policy that it shall be void upon certain conditions, means that the policy is voidable at the option of the insurer, and unless the insurer, on learning of the conditions, acts with reasonable promptness in notifying the insured of its election to avoid the policy and in restoring or offering to restore the unearned premium, it thereby waives its right to declare the policy void. p. 523.</p> <p>4. Insurance. — Fire Insurance. — Insurance Brolcers. — Knotoledge. —An insurance broker, acting within the scope of his authority, is the agent of the company from which he procures insurance, and his knowledge relating to the risk is binding on the company, though not communicated to it. p. 523.</p> <p>5. Insurance.— Fire Insurance.— Condition Avoiding Policy.— Waiver. — An insurance company, having knowledge of facts which would enable it to avoid the policy by requiring proof of loss in the event of a loss, and by failing to give timely notice of its election to avoid, waives the right to defeat recovery by reason of such facts, p. 524.</p> <p>6. Insurance. — Fire Insuramce. — Waiver of Conditions. — Evidence. —In an action on a fire policy, evidence that the insurance broker knew that plaintiff’s title to personal property covered by the policy was not absolute, and that the agents who issued the policy had knowledge of the property and knew that such policy and another covered the same property, and that it was through the oversight of such agents that permission to carry other insurance was not inserted in the policy sued on, warranted *the jury in finding that defendant had waived any condition in the policy by which it might have avoided liability, p. 524.</p> <p>7. Insurance. — Fire Insurance. — Evidence.—Admissibility.—In an action on a fire policy, testimony of plaintiff showing knowledge of her title by the broker through whom the insurance was placed, was admissible, since knowledge by him of facts relating to the validity of the policy is imputed to the company, p. 524.</p> <p>8. Appear. — Revie%o.—Judgment.—Presumptions.—Where no' available error is shown, the correctness of the judgment will be presumed. p. 524,</p>

<p>1. Husband and Wife.- — Rights of Wife m Husband’s Real Estate. —The law looks with favor upon the wife’s interest in her husband’s real estate, as well as upon her marital rights as widow in such real estate, p. 532.</p> <p>2. Mortgages.- — Foreclosure.—Rights of Wife of Mortgagor. — As against a mortgage in which the wife has joined, she may compel the holder to exhaust the husband’s two-thirds before selling her one-third to pay the mortgage debt, and she is entitled to the surplus not exceeding one-third of the value of the whole of the land as against her husband’s creditors, and the same rule applies in favor of a widow as- to a purchase money mortgage in which she had not joined, where her husband conveyed the real estate encumbered by such mortgage, p.532.</p> <p>3. Husband and Wife. — Lands Purchased, on Contract. — Rights of Wife. — Enforcement of Vendor’s Lien. — A wife may claim her one-third in lands purchased by the husband on contract, and may compel the holder of the vendor’s lien to exhaust the husband’s two-thirds before selling her one-third, p. 533.</p> <p>4. Husband and Wife. — Rights of Wife im Husband's Real Estate. —Tax Liens. — The widow of a deceased husband or the wife of a judgment debtor, is entitled to have a lien for taxes against the property owned by the husband paid out of the two-thirds of his lands, p.533.</p> <p>5. Municipal Corporations. — Street Improvements. — Taxation.— Street improvement statutes are considered an exercise of the power of taxation, p. 533.</p> <p>6. Husband and Wife. — Fraudulent Conveyances. — Setting Aside Conveyance.— Rights of Qrcmtor's Wife.— Street Improvement Liens. — Where a conveyance by husband and wife was set aside as fraudulent as against his creditors, and the real estate was sold at judicial sale to the creditors, subject to the rights of the wife, but prior to the proceedings to set aside such conveyance, the fraudulent grantee had signed a waiver in order to procure the privilege of paying an assessment lien for street improvements in installments, such wife, as against the creditor, could compel the sale of the interest of such creditors and theyapplication of the proceeds to the payment of such lien before resorting to her interest for its payment, pp. 533, 534. \</p> <p>7. Fraudulent Conveyances. — Fraudulent Grantee. — Trusts.—A fraudulent grantee holds the land, conveyed to him in fraud of*, the grantor’s creditors, in trust for such creditors, p. 534.</p>

<p>From White Circuit Court; James P. Wason, Judge.</p> <p>Action by James R. Fowler and others against Anthony A. Anheier and others. From a judgment for plaintiffs, tbe defendants appeal.</p>

Prom Lake Superior Court; John A. Gavit, Judge. Motion by Paul Yapinski and another to set aside a judgment taken against them by default in favor of Ernst Tosetti and others. Prom a judgment overruling the motion, this appeal is prosecuted.

<p>From Henry Circuit Court; Ed Jackson, Judge.</p> <p>Action by Lamont E. Jones against Martha Bryan and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Negligence. — Proximate Cause. — Complaint. — A complaint against a telephone company on the theory of negligence in the maintenance of a certain guy wire, extending from' one of defendant’s poles to an anchor in the ground at a point immediately within the curb line of a certain street and alleging that plaintiff’s horse, which became frightened and unmanageable by reason of escaping steam on the opposite side of the highway, ran and jumped across said wire and became entangled therewith and was thereby injured, is not objectionable on the theory that it shows that the escape of the steam was an independent proximate cause of the injury, and that the presence of the wire was only a condition and not the proximate cause, p. 559.</p> <p>2. Negligence. — Injury to Property. — Contributory Negligence.— Complaint. — Burden of Proof. — in an action for damages for injury to personal property, the plaintiff must allege and prove that he was free from any negligence contributing to such injury, p. 559.</p> <p>3. Negligence. — Injury to Property. — Contributory Negligence.— Complaint. — Sufficiency.—A complaint for injury to plaintiff’s horse, alleging that plaintiff was exercising reasonable and ordinary care in its management and control, and that he was at all times free of negligence or fault that in any way contributed to the injury of said horse, sufficiently avers plaintiff’s freedom from contributory negligence, in the absence of specific averments negativing the effect of such general allegation, p. 559.</p> <p>4. Negligence. — Jury Question. — Ordinarily negligence is a question of fact, but where the facts are undisputed and admit of but one inference, the question is one of law for the court, p. 561.</p> <p>5. Telegraphs and Telephones. — Construction.—Negligence.—Evidence. — In an action against a telephone company for injury to plaintiff’s horse alleged to have been caused by coming in contact with a guy wire erected and maintained within the sidewalk line, where the undisputed evidence showed the size and presence of such wire and the manner and method of placing and maintaining same, and that the method of maintaining such wire was the usual and customary method and proper in all respects except in the matter of the projecting end, all of which was undisputed, and it was conceded by plaintiff that a guy wire was necessary, and it is in no way shoiwn that such projecting end had anything to do with the injury, the question of defendant’s negligence was not a question of fact, but one of law for the court, p. 561.</p> <p>6. Telegraphs and Telephones. — Use of Streets. — The occupancy of the streets of a city by a telephone system is a proper street use, expressly recognized by §8696 Burns 1908, Acts 1905 p. 219, §93, but such use must not obstruct or unnecessarily interfere with' the primary use of the streets for the passage of people and vehicles, p. 563.</p> <p>7. Municipal Corporations. — Use of Streets. — It is within the discretion of the municipality to determine what part of the nominal highway shall be devoted to the various purposes of passage, p. 564.</p> <p>8. Telegraphs and Telephones. — Use of Streets. — Negligence.—In an action against a telephone company for injury to plaintiff’s horse by coming in contact with a guy wire, where the evidence showed that the wire was within the sidewalk line and not an obstruction to that p'art of the street used for the passage of horses and vehicles, the fact that the end of such wire, where it was attached to the ground anchor, projected one and one-half inches at right angles from the wire, does not constitute negligence rendering defendant liable for the injuries complained of, where it is not shown that the projecting end had anything to do with such injuries, p.564.</p>

<p>Prom Superior Court of Marion County (82,544); Charles J. Orbison, Judge.</p> <p>Action by William F. Taylor against the Federal Casualty Company. From a judgment for plaintiff, the defendant appeals.</p>

From Elkhart Superior Court; Vernon W. Van Fleet, Judge. Exceptions by James Francis Shuey to the final report of Melvin A. Lambert, executor of the will of Malissa Alice Shuey, deceased. From a judgment approving the final report as amended, the executor appeals.

<p>From Decatur Circuit Court; Marshall Hacker, Judge.</p> <p>Action by Culver M. Hillis against Edwin J. Dils and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Superior Court of Allen County; Owen N. Heaton, Judge.</p> <p>Action by George Grate against the Wabash Railroad Company and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Revieio.—Ruling on Motion to Make Complaint More Specific. — Where a complaint to recover on a written agreement for the payment of a certain sum, alleged that the consideration therefor was the payee’s agreement to dismiss certain actions which he had pending against defendant and to permit judgment by default in a proceeding to set aside the probate of a certain will, and alleged generally that such payee had performed his part of the agreement, the overruling of a motion to make such complaint more specific by stating the titles of the actions and whether such causes as were agreed upon were in fact dismissed was not erroneous, p. 603.</p> <p>2. Contracts. — Actions.—Complaint.—Sufficiency.—A complaint by the assignee of a written agreement for the payment of certain money to be derived from the sale of certain property, to recover on an amount alleged to be due thereon, setting forth the agreement and. the assignment thereof, alleging the consideration for its execution to be the dismissal of certain pending actions and payee’s agreement to permit judgment by default in a certain proceeding, and alleging generally the payee’s performance of his part of the agreement, that defendant had sold the property and that a certain amount was still due from defendant out of the proceeds thereof, was sufficient to withstand a demurrer, p. 603.</p> <p>3. Appeal. — Review.—Harmless Error. — Ruling on Demurrer to Answer. — Sustaining a demurrer to a paragraph of answer, the material allegations of which were provable under other paragraphs, was not erroneous, p. 603.</p> <p>4. Interest. — Right to Recover. — Review on Appeal. — Where there has been a vexatious delay in the payment of an amount due, interest may be charged from the date when due, so that in an action for the recovery of a sum alleged to be due plaintiff, where there was some evidence warranting the trial court in finding that there had been vexatious delay, its action in allowing interest will not be disturbed on appeal, p. 604.</p> <p>5. Appeal. — Review.—TerMct.—Evidence.—The court on appeal will not disturb the judgment of the lower court on the weight of the evidence, p. 605.</p>

<p>1. New Tbial. — New Trial as of Bight. — When Not Allowed.— Where two or more substantive causes of action proceed to judgment in the same case, in one of which a new trial as of right may be granted, but the other not, the latter will control the procedure, and a new trial as of right will be denied, p. 610.</p> <p>2. New Tbial. — New Trial as of Bight. — Title to Beal Estate. — In an action involving title to real estate and to set aside a conveyance thereof, a new trial as of right may be had under §1110 Burns 1908, §1064 R. S. 1881. p. 610.</p> <p>3. New Tbial. — New Trial as of Bight. — When Not Allowed.— Where one paragraph of complaint involved the title to real estate and sought to set aside a conveyance of the same, and other paragraphs alleged the breach of a contract for care and support for which plaintiff asked damages, and that certain expenditures had been made which plaintiff sought to have declared a specific lien against the real estate in question, a new trial as of right was properly denied, p. 610.</p>

<p>From Tipton Circuit Court; Leroy B. Nash, Judge.</p> <p>Action by Harry C. Gilbert against Tbe First National Bank of Tipton, Indiana. From a judgment for defendant, the plaintiff appeals.</p>

Prom Franklin Circuit Court; George L. Gray, Judge. Action by Bessie Munson, administratrix of the estate of Fred W. Munson, deceased, against the Kelly Atkinson Construction Company. From a judgment for plaintiff, the defendant appeals.

<p>From Wayne Circuit Court; Henry G. Fox, Judge.</p> <p>Action by John Redd against James Gregory. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — Plea m Abatement. — Requisites. — Certainty. — A plea in abatement must be certain in every particular so as not only to point out the plaintiff’s error, but to show him how it may be corrected in another suit in regard to the same cause of action, that is, it must leave nothing to be supplied by intendment or construction, and must obviate every supposable special answer, p. 637.</p> <p>2. Corporations. — Foreign Corporations. — Actions. — Service of Process. — Plea in Abatement. — Theory.—Requisites.—In an action against a foreign corporation, a plea in abatement grounded on the theory that, on account of defendant’s withdrawal from the State and the revocation of the authority of its agent to accept service of process, the court had been deprived of any jurisdiction of the defendant, would be insufficient without a showing that the cause of action did not arise within the State; but such denial is not essential in a plea where the theory is that the court has not obtained jurisdiction of the person of defendant by the service of process upon its alleged agent and that such service should be set aside and the summons quashed, pp. 638,640.</p> <p>3. Corporations. — Foreign Corporations. — Actions. — Service of Process. — Sufficiency of Service. — Jurisdiction.—The question of whether service of process in an action against a foreign corporation was had on an authorized agent is in no way affected by the existence or nonexistence of money, credits or effects within the State belonging to defendant or due to it, but a showing as to whether the same existed would be essential in determining whether the court might, by a supplemental pleading in attachment or garnishment, acquire such jurisdiction of the person as would enable it to proceed to final judgment m rem. p. 638.</p> <p>4. Constitutional Law. — Due Process of Law. — Deprivation of Property. — One may not be deprived of his property without due process of law. p. 638.</p> <p>5. Process. — Service.—Personal Judgment. — A court cannot acquire jurisdiction over the person of one not residing within its territorial jurisdiction, so as to warrant a personal judgment, except by actual service of notice on him within the jurisdiction, or on one authorized to accept service in his behalf, or by his waiver of the want of due service, p.638.</p> <p>6. Process. — Constructive Service. — Judgment in Bern. — In an action in rem, the court, by constructive service on a person residing beyond its territorial jurisdiction, whose property is sought to be affected or taken, may acquire such qualified or limited jurisdiction over the person as will enable it to render a judgment depriving him of such property, p. 639.</p> <p>7. Pleading. — Construction.—Theory.—Ordinarily the theory of a pleading is to be determined not by its prayer alone, but by its averments taken in their entirety, p. 641.</p> <p>8. Constitutional Law. — Pursuit of Business. — Bights of Citizens of Other States. — The legislature has no power to prevent a citizen of another state from coming into this State, or to prohibit him from doing business therein since such right is given both by the organic law of the State and of the United States without the permission or comity of the state, p. 644.</p> <p>9. Corporations. — Foreign Corporations. — Bight to Exclude or Bestrict. — The State, by legislative enactment, may grant or refuse a foreign corporation the right to do business within its borders, and may provide the terms and conditions on which such corporation may come into the State for such purpose, p. 644.</p> <p>10. Corporations. — Foreign Corporations. — Actions. — Process.— The State may not only provide the manner and mode of service of obtaining jurisdiction over foreign corporations doing business therein, but may also require such corporations to accept the terms of the mode of service so provided as a condition precedent to doing any business in the State, p. 645.</p> <p>11. Constitutional Law. — Due Process of Law. — Deprivation of Property. — Foreign Corporations. — Process.—When the question is properly raised in an action against a foreign corporation the court must determine whether the prescribed mode of service does in fact deprive such corporation of its property without due process of law, and its determination is generally final in so far as property within the jurisdiction of the State is affected; but where the judgment affects property in another state, or is questioned in a court of such state, such court may determine for itself whether the prescribed mode of service is consistent with due process of law. p.645.</p> <p>12. Corporations. — Foreign Corporation. — Service of Process.— Validity of Prescribed Method. — Recognition by Federal Courts. —The mode of service prescribed by the laws of a state for obtaining jurisdiction over foreign corporations, which is by the local courts recognized as valid, obtains similar recognition in the federal courts, in so far as the same affects property of foreign corporations within such state, p.646.</p> <p>13. Corporations. — Foreign Corporations. — Regulation. •— Service of Process. — Statutes.—Validity.—The act approved March 15, 1901, Acts 1901 p. 621, prescribing the conditions on which foreign corporations could be admitted to transact business in the State, and providing a method for service of process in actions against foreign corporations, was a proper exercise of legislative power. p.646.</p> <p>14. Corporations. — Foreign Corporations. — Regulation.—Right to Change Conditions. — Withdrawal From State. — Revocation of Agent's Authority. — While succeeding legislatures may revoke, modify or change the conditions upon which a foreign corporation is permitted to do business within the State, such an act could apply only to the future business of such corporation, so that any right that such corporation may have, based on the theory of mutuality of right and privilege, to withdraw from the State and revoke the authority of its agent in the State, could affect only its future business and could not affect or take away any rights growing out of business already done by such corporation under its license, p. 646.</p> <p>15. Corporations. — Foreign Corporations. — termination of Agency. — Appointment of Successor. — Upon the death or resignation of an agent of a foreign corporation appointed as a condition precedent to doing business in the State, or upon the termination of such agency from any cause, it is the duty of such corporation to appoint a successor so long as liabilities re-suiting from business already done under its license remain outstanding. p. 648.</p> <p>16. Corporations.— Foreign Corporations.— Effect of Accepting License. — Process.—Service on Agent. — A foreign corporation by accepting a license to do business in the State pursuant to the act approved March 15, 1901, Acts 1901 p. 621, and by complying with the conditions thereof and naming an agent upon whom service of process may be had, and by coming into and doing business within the State under such license, in effect agrees that service of process under such act shall be a valid service against it, when sued by a citizen of the State on a contract made in the State during the time it was so doing business, and in such an action it may not defeat the jurisdiction obtained by such service by showing a revocation of its agent’s authority to receive such service, unless it also shows that thereafter another agent was appointed on whom process may be had. p. 649.</p> <p>17. Corporations. — Foreign Corporations. — Regulations. — Statutes. — The purpose of the act approved March 15, 1901, Acts 1901 p. 621, providing conditions for the admission of foreign corporations to do business in the State, was not only to give to such corporations the right to do business within the State, but also to provide a method of making them yield to the jurisdiction of the courts of the State when necessary to determine the rights of citizens of, the State by reason of business transacted by such corporations within the State, p. 649.</p> <p>18. Statutes. — Construction.—Legislative Intent. — The legislative intent will be carried out when it can be ascertained from the act, and where two constructions are possible, that one which gives effect to the act will be adopted rather than the one which would defeat the purpose of the law. p. 652.</p> <p>19. Corporations. — Foreign Corporations.— Actions.— Service of Process. — Plea in Abatement. — Sufficiency.—In an action against a foreign corporation, a plea in abatement, alleging its withdrawal from the State and the revocation of the authority of its agent, was insufficient to show that the court had not obtained jurisdiction of the person of defendant by service on such agent, in the absence of allegations showing the appointment of another agent on whom service could be had. p. 652.</p>

<p>1. Insurance. — Conditions.—Proofs of Deatii. — Time for Bringing Svñt. — Waiver.—Where an insurance company, after twice receiving notice of the death of the insured, wrote the beneficiary that the policy would be paid as soon as the company could take action on it, and that litigation would only complicate matters, it thereby waived conditions in the policy requiring the proofs of death to be made on blanks furnished by the company, and limiting the time for suing thereon, p. 657.</p>

<p>From Floyd Circuit Court; William C. Utz, Judge.</p> <p>Action by Elizabeth Neely against the Louisville and Southern Indiana Traction Company. From a judgment for defendant, the plaintiff appeals.</p>

From Sullivan Circuit Court; Wm. H. BridweU, Judge. Action by Gertrude M. Foote against Wint A. Foote, for divorce. Judgment was rendered denying tbe divorce and that each party pay his own costs, and thereafter, on motion of plaintiff, the court vacated the judgment and entered an order requiring defendant to pay to plaintiff her expenses and attorney’s fees, from which the defendant appeals.

From Dubois Circuit Court; John L. Brets, Judge. Proceedings by tbe town of Jasper for tbe improvement of a certain street by grading only. From a judgment in favor of Lizzie T. Cassidy on her appeal from the assessment against her property, this appeal is prosecuted.

From Laporte Circuit Court; John G. Richter, Judge. Action by Mary Watt, administratrix of tbe estate of Henry Watt, deceased, against tbe Mishawaka Paper and Pulp Company. From a judgment for defendant, tbe plaintiff appeals.

<p>From White Circuit Court; James P. Wason, Judge.</p> <p>Action by Melissa E. Cresse against Thomas Kinmore. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Porter Circuit Court; W. C. McMahan, Judge.</p> <p>Action by Herman Daun against The Chicago, Lake Shore and South Bend Railway Company. From a judgment for plaintiff, the defendant appeals.</p>