Volume 55 — Indiana Appellate Court Reports

<p>From Superior Court of Allen County; Carl Yaffle, Judge.</p> <p>Action by David F. Spindler against Henry C. Crawford and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Jurisdiction.—Assignment of Errors. — The assignment of errors constitutes tbe complaint on appeal and jurisdiction can only be acquired over tbe parties whose full names appear therein, p. 13.</p> <p>2. Appeal.— Assignment of Errors.— Names Idem Sonans.— Dismissal. — Lee Jenkins and Leroy Jenkins are not idem sonans, so that an assignment of errors in the name of Lee Jenkins, appellant, is insufficient to confer jurisdiction to decide questions relating to a judgment against Leroy Jenkins, and, no judgment appearing from the record against Lee Jenkins, a dismissal is required, especially where appellant’s attention was called to the defective assignment and he made no effort within the year allowed for appeal to remedy the defect.- pp. 14,16,18.</p> <p>3. Appeal.' — Dismissal.—Motion to Reinstate. — A motion to reinstate an appeal after dismissal is recognized in the practice of this State, p. 14.</p> <p>4. Appeal. — Assignment of Errors. — Defect.-—Waiver.—Although many irregularities and requirements concerning an appeal may be waived by appearance, or joinder in error, and by filing a brief on the merits, and some questions not properly presented are within the legal discretion of the court, there is no rule of waiver, or decision, whereby an appellant is entitled to a decision on the merits in the absence of a transcript of the record accompanied by an assignment of errors relating to the particular judgment shown by the record, and properly challenging its correctness. p. 15.</p> <p>5. Appeal. — Assignment of Errors. — Failure to Set Out Names of Parties. — Failure to set out in the assignment of errors the full names of all the parties to the judgment appealed from renders the assignment defective and unavailing, p. 16.</p> <p>6. Appeal. — Defective Assignment of Errors.• — Waiver of Right to Dismiss. — An appellee, by failing to file a motion to dismiss and by filing a brief on- the merits, does not waive the right to have the appeal dismissed where it appears that the assignment of errors is insufficient to present any question relating to the judgment shown by the transcript, and the court may order a dismissal on its own motion, pp. 17,18.</p> <p>7. Appeal. — Assignment of Errors. — Defect in Name of Parties.— Where the assignment of errors showed “Lee” as the Christian name of the appellant and the record showed that the judgment appealed from was against one with the same surname, but whose Christian name was “Leroy,” there was no duty upon the appellee, in order to procure a dismissal, to show that the party named in the assignment was not the party against whom the judgment was rendered, p. 18.</p> <p>8. Appeal. — Presumptions.—Duty to Show Error. — On appeal every presumption is in favor of the lower court and it devolves on appellant to show affirmatively by the record that there is manifest error in the judgment shown by the record, p. 19.</p> <p>9. Appeal. — Assignment of Errors. — Right to Amend. — Laches.— The right to amend an assignment of errors does not exist after the year allowed by statute for perfecting an appeal has passed, and even if such right existed, where appellee’s brief calling attention to a defect in the assignment of errors was filed November 13, and the year allowed for perfecting the appeal did not expire until March 14, of the following year, appellant, who with full knowledge of the defect waited and took his chances, was guilty of such laches as to be deprived of the right to amend the assignment and to a reinstatement of the appeal after a dismissal, p. 19.</p> <p>10. Coubts. — Jurisdiction.—Statutes.—Courts cannot assume jurisdiction where it is not conferred, but are bound by valid statutes the same as individuals, nor can they arbitrarily ignore the rules of practice, p. 20.</p> <p>11. Appeal. — Record.—Matters Dehors the Record. — The appellate tribunal derives its knowledge of the proceedings and judgment from which the appeal is prosecuted from the duly authenticated transcript, and it may not go outside the record for such information. p. 20.</p>

<p>Prom Boone Circuit Court; Willett E. Parr, Judge.</p> <p>Action by Nancy McKinley and others against Walker M. Britton and another. Prom a judgment for defendants, the plaintiffs appeal.</p>

<p>From Allen Circuit Court; Carl Yaple, Judge.</p> <p>Action by George Geddes against the Ohio Farmers Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

From Superior Court of Marion County (82,229); Charles J. Orbison, Judge. Action by the State of Indiana, on the relation of Caroline Bracken, against the Illinois Surety Company and others. Prom a judgment for relatrix, the defendant surety company appeals.

<p>From Juvenile Court of Marion County (7,402a) ; Newton M. Taylor, Judge.</p> <p>Prosecution by the State of Indiana against Dora Nunn. From a judgment of conviction, the defendant appeals.</p>

Prom Clinton Circuit Court; Jos. Combs, Judge. Action by Ice H. Ramsey against The Crawfordsville Trust Company, as executor of the will of Alexander P. Ramsey, deceased, and others. Prom a judgment for plaintiff, the defendants appeal.

<p>Prom Washington Circuit Court; Thomas B. Bushirh, Judge.</p> <p>Action by A. D. Baker Company against Morgan L. Smedley. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Questions Reviewahle. — Admission of Evidence. — No available error is presented as to the ruling on a motion to strike out the answer to a question to which no objection was made, and which assigned only that the answer was immaterial, p. 86.</p> <p>2. Cabeieks.- — Injuries to Passengers. — Negligence.—Instructions.— In a passenger’s action against an electric railroad company for personal injuries, where the first paragraph of complaint charged negligence as to the condition of the track, and the second charged negligence in the operation of the ear, an instruction that if plaintiff was injured without her fault while a passenger on said car “which was derailed by reason of the manner in which it was operated and propelled,” though the “derailment might not have occurred in the manner described in the first paragraph of complaint, nevertheless, a presumption of negligence arises against the defendant,” to rebut which the defendant must show by a fair preponderance of the evidence that the “derailment could not have been avoided by the exercise of the highest degree, of practical care and diligence,” was not limited to the first paragraph, and was a correct statement of the law. p. 87.</p> <p>3. Carriers. — Injuries to Passenger. — Instructions.—Measure of Damages. — An instruction informing the jury that if it found for plaintiff, who was injured while a passenger on defendant’s car, she could only recover for such damages as the evidence relating to damages showed she was entitled to recover for the injuries described in her complaint, not exceeding the amount therein demanded, which sum should fully and fairly compensate her for the injuries, if any, she had so received, was not open to the objection that it authorized the jury in assessing the damages to consider injuries due to a former accident for which defendant had settled adversely, p. 88.</p> <p>4. .Appeal. — Review.—Harmless Error. — Instructions.—An instruction not open to the objection urged by appellant is not ground for reversal, although it is subject to an erroneous inference 'affecting the appellee, p. 89.</p> <p>5. Appeal. — Review.—Harmless Error. — Instmctions.—An instruction susceptible to a harmful inference is rendered harmless by other instructions which removed the possibility of such inference, p. 89.</p> <p>6. Appeai. — ■ Review.— Harmless Error.— Instructions.— Although an instruction in a personal injury case was so drawn as to possibly leave the impression that if plaintiff had been injured in an accident prior to the one complained of, and settlement therefor had not been made, she coul(i recover for such former injuries, its giving was harmless, in view of specific instructions stating that plaintiff could not recover for any former injuries and must recover, if at all, for the injuries alleged in her complaint, p. 89.</p>

<p>From Putnam Circuit Court; John M. Bawlcy, Judge.</p> <p>Action by Amos Underwood against the Vandalia Coal Company and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Questions Reviewable. — Motion to Modify Judgment. —A trial court is entitled to know on what ground a motion to modify a judgment is based, hence no question is presented on appeal under an assignment of error in the overruling of such a motion, where no reasons were stated in such motion for the modification asked, p. 103.</p> <p>2. Judgment. — Modification.—A motion to modify a judgment will not lie, where the effect of the modification would be to completely change an adverse judgment to one favorable to the party asking such modification, p. 103.</p> <p>3. Quieting Title. — Proof Required. — Burden.—By a complaint in ordinary form to quiet title, plaintiff assumes the burden of proving not only his title to the real estate in controversy, but that the defendant is, without right, claiming and asserting some title to or interest in such real estate adverse to that of plaintiff, p. 107.</p> <p>4. Mortgages. — Foreclosure. — Interests Barred. — Rights Under Lease for Term of Tears. — While a judgment by default foreclosing a mortgage against one who was properly made a iiarty to the action, and duly served with process, and required to answer as to any interest he might have or claim in the premises, will be conclusive as to any prior claims of interest or title adverse to the plaintiff, only claims of interest or title made by such party in or to the property which is the subject of the foreclosure are thus concluded, and such a suit would not challenge him to answer or defend against a claim of interest in some other or different property from that covered by the mortgage in suit; hence the rights of the occupant of a building erected for its use under a contract" which in effect was a lease for a term of years, who joined in the execution of a mortgage on the premises, were not barred by a default judgment in foreclosure of the mortgage, where the complaint in the foreclosure suit merely described the real estate, and neither it, the mortgage, nor the note in any way mentioned such contract, pp. 1(07,109.</p> <p>5. Landlord and Tenant, — Lease.—Nature of Contract. — Personal Property. — A lease for a term of years is an encumbrance against the possession of real estate, rather than against the title thereto, and is construed as personal property and not real estate. p. 108.</p> <p>6. Mortgages. — Property Subject. — Leases.—A lease for a term of years may be mortgaged, and may be included in a mortgage given on the real estate which it covers, but, in order that it may be so covered and included in a mortgage, it must appear from the mortgage that the parties intended to so include it. p. 109.</p> <p>7. Landlord and Tenant. — Lease.—What Constitutes. — A contract between the owner of a lot and a fraternal order that the former would construct a one-story building on his lot so that the latter could erect a second story to cover it and a similar building to be erected on an adjoining lot, and that in consideration for the erection of the second story the owner of such lot leased and rented the second story to such order for a period of ninety-nine years, gave to the latter no title or interest in the real estate, but was merely a lease for a term of years, p. 109.</p> <p>8. Mortgages. — Assumption of Payment. — Deed,.—Construction.— Where a deed conveying land to plaintiff recited that “the grantors convey to the grantee all shelving, gas fixtures, except * * * this conveyance is made subject to a mortgage held by * * *, Also street assessments against the lots for street improvements which grantee agrees to assume.” the grantee must be held to have assumed the payment of the mortgage, since the effect that might otherwise have prevailed from the fact that the word “also” in the provision for the assumption of street assessments began with a capital is nullified by the fact that it is preceded by a comma, and that the language is fairly open to the construction that the payment of the mortgage was assumed. p. 110.</p> <p>9. Subrogation. — Foreclosure of Mortgage. — Purchase at Foreclosure Sale. — Where a mortgagor conveyed land, and his grantee assumed the payment of a mortgage thereon, the grantee could not, by suffering the mortgage to be foreclosed and buying in the title acquired by a purchaser at the foreclosure sale, acquire additional rights as against the right of possession by a tenant of the mortgagor under a lease for years, who was made a party to the foreclosure suit and defaulted, p. 110.</p> <p>10. Mortgages. — Rights of Purchasers at Foreclosure Sale. — Estoppel. — Effect as to Ooparties. — Appeal.—Where an appellant, claiming under a purchaser at a foreclosure sale, was by virtue of a prior deed from the mortgagor in which he assumed the payment of the mortgage, estopped from asserting any rights superior to those of the mortgagor as against the right of possession by a tenant of the mortgagor under a lease for years, who with the mortgagor was defaulted in the foreclosure suit, such estoppel operates to prevent a reversal as to his coappellants, claiming under such purchaser at the foreclosure sale, who, on the theory that they were tenants in common with him, joined him in an action against the tenant of such mortgagor to quiet their title, p. 111.</p> <p>11. Quieting Title. — Burden of Proof. — Ootenants.—A tenant in common, by joining another in an action to quiet their common title, undertakes the burden not only of proving title in himself, but also title in his cotenant, p. 111.</p>

From 'Washington Circuit Court; Thomas B. Busldrk, Judge. Action by Millard Reyman, as guardian of Anna Crayeraft, a person of unsound mind, against Rolla E. Morris and another. Prom a judgment for plaintiff, the defendants appeal.

From Delaware Superior Court; Robert M. YanAtta, Judge. Action by the State of Indiana, on the relation of Lawrence Walburn, against Charles Gough and others. From a judgment for defendants, the relator appeals.

Prom Lake Superior Court; Virgil 8. Reiter, Judge. Action by Charles C. Smith, administrator of the estate of Prank Shearer, deceased, against the National Pire Proofing Company. Prom a judgment for plaintiff, the defendant appeals.

<p>From Harrison Circuit Court; William Riclley, Judge.</p> <p>Action by Andrew J. Glaze against the Ohio Farmers Insurance Company. From a. judgment for plaintiff, the defendant appeals.</p>

<p>1. Vendor and Purchaser. — Contract for Sale of Real Estate.— Title of Venclee. — Equitable Ownership. — Where there is a contract for the sale of real estate, the vendor simply holds the title as security for the purchase money, and the vendee becomes the equitable owner thereof so that he secures all the benefits and assumes all the risks of ownership, p'p. 160,161.</p> <p>2. Vendor and Purchaser. — Contract for Sale of Real Estate.— Construction. — On appeal to the equity side of the court, a contract for the sale of real estate will be so construed as not to give either party an unfair advantage, p. 160.</p> <p>3. Covenants. — Warranties Against Incumbrances. — Seioer Assessment. — A lien for a sewer assessment, growing out of the construction of a sewer after the execution of a contract for the sale of real estate, and prior to the execution of a deed pursuant to such contract, is not covered by the covenants of warranty in such deed. p. 161.</p> <p>4. Covenants.— Warranties Against Incumbrances.— Scope.— Although a lien created solely by operation of law after the execution of a contract for the sale of real estate is not embraced in the covenants of warranty in the deed subsequently executed pursuant to such contract, such lien, having attached, would be covered by the warranties in a deed executed by such vendee on his conveyance of such real estate, p. 163.</p>

<p>Prom Superior Court of Marion County (81,354) ; Charles J. Orbison, Judge.</p> <p>Action by Lee Reichman and others against Hymen Cohen and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Bills and Notes. — Place of Execution. — Presumptions.—A note bearing date as of a certain time and place within the State, will be presumed in an action thereon to have been executed in the State, p. 175.</p> <p>2. Bills and Notes. — Negotiability.—Note Payable in Another State. — The negotiability of a note executed in this State, and by its terms made payable in another, must be determined by the law of the state where payable, hence a note executed in this State and made payable at a place in' Illinois, which was negotiable by the law of that state, must be treated as negotiable in an action thereon in this State, although it does not conform to the standard of negotiability fixed by the statute of this State; and, being in the hands of a bona fide holder, it was not subject to defenses existing against the payee. (Mix v. State Bank [1859], 13 Ind. 521; Patterson v. Carrell [1877], 60 Ind. 128; Fordyce v. Nelson [1883], 91 Ind. 447; Midand Steel Co. v. Citizens Nat. Bank [1901], 26 Ind. App. 71; Garrigue v. Kellar [1905], 164 Ind. 676; and Ray v. Baker [1905], 165 Ind. 74, distinguished.) pp. 175, 178.</p> <p>3. Bills and Notes. — Negotiability.—The question of negotiability or nonnegotiability of a note is one of construction or interpretation to be determined from the form and conditions of the instrument in view of the law subject to which it was made, and, since the quality and character of a note as to being negotiable or nonnegotiabile attaches at the time and place of its inception and remains impressed upon it throughout its existence, the negotiability or nonnegotiability of a note in the state or country of its legal origin cannot be changed or affected by the subsequent transmission of such note to another jurisdiction, p. 178.</p> <p>4. Bills and Notes. — Negotiability.—Determination.—The negotiable or nonnegotiable quality of a note depends upon the law subject to which it was made, and in arriving at a determination of the question whether it is subject to the law of a jurisdiction other than that in which it was executed, or to the law of the place where executed, the intent of the parties as expressed in the obligation will control, and the provision in a note for its payment at a place outside the jurisdiction in which it was executed gives rise to the presumption that the parties intended its negotiability to be controlled by the law of the jurisdiction in which it was made payable, while a failure to specify a place of payment warrants the presumption that it was payable in the jurisdiction where executed, and its quality will be determined by the law of that place, p. ITS.</p> <p>5. Bills and Notes. — Delivery.—Negligence of Makers. — Where a negotiable note given for the price of a stallion was not to be delivered until nine persons having shares in the horse had signed it, but the payees were permitted to have possession of the note before it had been signed by all the shareholders, and were thus enabled through the negligence of the makers to transfer it to a l>ona fide holder for value, when it was signed by only six of the shareholders, the makers were not entitled to urge want of delivery as a defense in an action thereon, and the court did not err in sustaining demurrers to their answers setting up such defense, p. .182.</p> <p>6. Bills and Notes.— Defenses.— Nondelivery.— Answer.— Sufficiency — In an action by the héna fide holder of a note against the makers, an answer alleging that the note was executed for the purchase price of a stallion, with the agreement that the price was to be divided into ten shares of the value of $200 each of which one of the makers of the note was to take two shares and the remaining purchasers, including the other defendants, were to take one share each, that each purchaser should be liable on the note only to the amount represented by his share, that the note was not to be delivered or become effective until signed by all the purchasers, that the defendants signed the note but that the other purchasers did not sign it or pay their share, that defendants demanded a return of the note as soon as they discovered payee's possession, and that it was never delivered to the payee, did not proceed upon the theory that the execution was .never completed by any delivery, but upon the theory that there was no valid delivery because possession was acquired before the note was signed by all the shareholders, and was insufficient to constitute a defense to the action, p. 187.</p> <p>7. Pleading. — Non Est Factum.- — Sufficiency.—An answer in non est factum, to be sufficient, must deny the execution of the instrument under oath in terms so certain and specific as to warrant a conviction of perjury upon proof of the execution of the instrument. p. 1S8.</p> <p>8. Bills and Notes. — Delivery.—Effect.—While as a general rule, as between the original parties, the delivery of a negotiable instrument involves not only a change of possession, but also an intent on the part of the one making the delivery that the instrument shall by that act become effective, where the maker of such an instrument through negligence or misplaced confidence permits it to be in the possession of the payee so as to enable him to place it in 'circulation, the delivery is effective after the instrument has reached the hands of a bona fide holder, regardless of the maker’s intention at the time of parting with the possession, p. 180.</p>

<p>1. Street Railroads. — Injuries Lo Persons on Tracks. — Contributory Negligence. — Jury Question. — Where the evidence showed that plaintiff on starting to cross a street looked for an approaching ear, that he could see for a distance of 490 feet and saw none, that when he had walked about forty feet 'and was six or seven feet from where he was struck, he again looked for a distance of thirty or forty feet and saw no car, the question of whether he was guilty of contributory negligence in failing to look for an approaching car at other times and places before reaching the track.was one of fact for the jury. p. 192.</p> <p>2. Street Railroads. — Injuries to Persons on Tracks. — Contributory Negligence — Evidence.—While a pedestrian, who looks before crossing a street car track, but fails to see an approaching car which is visible, will in qase of injury be charged with having seen what he should have seen, where the evidence as to the speed of a car was conflicting and there was evidence from which the jury may have believed that the car approached at an unusual rate of speed, the court cannot say as a matter of law that plaintiff was guilty of contributory negligence, even though he could have seen the car when he looked, since on failing to see the car he may have been justified, from the usual speed of cars in that locality, in believing that he was safe in crossing, p. 192.</p> <p>3. Street Railroads. — Injuries to Persons on Tracks. — Contributory Negligence. — Last Clear Chance. — Where there was evidence showing that a street car motorman saw a pedestrian crossing the street in such a manner that a collision seemed imminent, giving no indication of stopping, and by his conduct and appearance indicating to a reasonably prudent man that he was unconscious of the approach of the car, and saw that such pedestrian was closely approaching a place where he would be struck by the car, and the physical facts tend to show that the motorman could have so operated the car as to have avoided the injury, it became the duty of such motorman to take all reasonable measures to prevent the collision, and the jury was justified, in view of evidence that the motorman did not stop the car as soon as he could have, in finding defendant liable under the doctrine of last clear chance, regardless of plaintiff’s negligence, p. 193.</p> <p>4. Appeal. — Revieiu.—Instructions.—There was no error in instructing on the doctrine of last clear chance where the issues and evidence warranted the application of the doctrine; nor in the refusal of an instruction stating that if plaintiff’s negligence continued to the time of his injury, he could not recover, even if defendant was negligent, p. 194.</p> <p>5. Stkeet Railroads. — Injuries to Persons on Trades. — Contributory Negligence. — Last Clear Chance.- — Where iilaintiff was negligent in getting into a place of danger in front of defendant’s car, and the motorman saw him and could have avoided or mitigated the danger by the use of reasonable means at his command, the defendant is liable for the injuries sustained by plaintiff, even though the latter’s negligence continued to the instant of injury, since in such case the negligence of the motorman in failing to take the proper precautions is regarded as the active or proximate cause of the injury, p. 195.</p> <p>6. Evidence. — Admissibility.—Matter Explanatory of Facts in Evidence. — In an action for injuries sustained by being struck by an electric ear, where defendant’s attorneys at the trial put in evidence the fact that, though plaintiff claimed that riding on cars caused him great pain, he made a trip on defendant’s road about a month after the accident, it was proper to admit the testimony of plaintiff that he made the trip, while suffering much pain, in compliance with the request of defendant’s claim agent who told him that defendant might settle, where the court stated that the evidence was not admitted for the purpose of binding defendant in any way, but merely to show why and under what circumstances plaintiff made the trip. p. 195.</p>

<p>Prom Knox Circuit Court; Orlando H. Cobb, Judge.</p> <p>Action by Joseph S. Stallings against Catherine P. Kyger. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Superior Court of Tippecanoe County; Henry H. Yintón, Judge. . Action, by the State of Indiana, on tbe relation of The Casparis Stone Company, against Pred D. Kruse and others. Prom a judgment overruling defendants’ motion to set aside the default and judgment rendered, the defendants appeal.

<p>Prom Superior Court of Marion County (82,704); Charles J. Orbison, Judge.</p> <p>Action by Edguer Faulkner against the 'WulschnerStewart Music Company. From a judgment for plaintiff, the defendant appeals.</p>

Prom Dubois Circuit Court; John L. Brets, Judge. Action by Jacob E. Schurz and another against the Southern Express Company and another. Prom a judgment for plaintiffs, the defendants appeal.

From Benton Circuit Court; James T. Saunderman, Judge. Action by Stanley Virgin, by his next friend Manford Virgin, against The Lake Erie and Western Railroad Company and another. From a judgment for defendants, the plaintiff appeals.

<p>1. Appeal. — Exceptions to Conclusions of Law.- — Findings.—For the purpose of their consideration, exceptions to conclusions of law stated by the trial court admit that the facts were fully and correctly found, p. 235.</p> <p>2. Deeds. — Conditions Subsequent. — Effect.—The title to property conveyed upon a condition subsequent does not vest in subsequent grantees of the original grantor upon the happening of the condition, or abandonment of. the property, but vests in such grantor or his heirs upon a proper reentry, p. 236.</p> <p>3. Deeds. — Conditional Limitations. — Effect.—Under a deed conveying property subject to a conditional limitation, upon the determination of the estate, the title vests ipso facto, and passes to one at the time holding under a subsequent deed from the original grantor, pp. 236,237.</p> <p>4. Schools and School Districts. — Property.—Abandonment of Use. — Effect.—Where property was granted to the trustees of a school township so long as used for school purposes, an abandonment of the school maintained thereon terminated the use of the township, regardless of the fact that a statute was in force authorizing or even requiring the reopening or reestablishing of such school, p. 236.</p> <p>5. Deeds. — Const-motion.—Conditional Limitation. — A deed must be construed as a whole and the grantor’s intention must control, hence a deed conveying property to the trustees of a school corporation and their successors in office forever, “so long as the same is used for school purposes,” when considered in connection with the surrounding circumstances, the situation of the parties, and the condition of the parties, created an estate with a conditional limitation, so that the estate held by such school corporation vested ipso facto, on the abandonment of the school, in one who at the time held title under a later conveyance from the original grantor, p.237.</p>

<p>From Grant Circuit Court; FI. J. Paulus, Judge.</p> <p>Action by Hiram C. Modlin and another against the Board of Commissioners of tbe County of Grant. From a judgment for defendant, tbe plaintiffs appeal.</p>

Prom Superior Court of Marion County (79,857) ; Clarence E. Weir, Judge. Action by Amy A. Champe, administratrix of the estate of Eliza Champe, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Bailway Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Conversion.— Acts Constituting.— A conversion implies some affirmative wrongful act in the disposition of the thing converted, or in withholding it from the rightful owner, that is, there must be a wrongful taking or detention, or an illegal use, misuse, or assumption of ownership, and a mere nonfeasance or failure to perform a duty imposed by contract or implied by law is not conversion. p. 254.</p> <p>2. Carriers.— Failure of Delivery.■ — Conversion.— A mere nondelivery by a common carrier does not constitute a conversion, but a misdelivery may. p.255.</p> <p>3. Carriers.— Conversion of Freight.— Evidence. — - Sufficiency.— Evidence showing that a carload of iron was received by defendant railroad company to be delivered to the codefendant, that the delivery of the car required the placing of same in the yard of codefendant beyond a gate which was maintained across the switehtrack, -the key to which was kept by codefendant, that the car was placed upon the track outside the gate on Friday, was checked by an employe of defendant as inaccessible on Saturday, and removed as empty on Monday, that the purported receipt of codefendant for the car was signed by defendant’s conductor, who gave no notice to codefendant that the car was on,the siding, that the car never passed within codefendant’s gate and that it was never unloaded by codefendant, though failing to show what was the actual disposition made of the iron, while amply sufficient to show a nondelivery of the iron, does not support a finding that it was converted by defendant railroad company, p.255.</p> <p>4. Appeal. — Waiver of Error. — Briefs.—Alleged error in the ruling on a motion for new trial is waived by failure of the party asserting the error to set out the motion in its brief in compliance with Rule 22. p. 258.</p> <p>5. Sales. — Liability for Price. — Failure to Deliver Goods. — The purchaser of a car of iron is not liable for its value where there was evidence to support the jury’s finding that the goods were never delivered to such purchaser or received by it. p. 258.</p>

<p>1. Pleading. — Demurrer to Answer. — Form.—A demurrer to an answer on the ground that it does “not state facts sufficient to constitute an answer”, does not present the question of the sufficiency of the facts stated to constitute a cause of defense, p. 276.</p> <p>2. Guardian and Ward. — Actions.—Complaint.—Theory.—A complaint against the former guardian of plaintiff, alleging that defendant, father of the plaintiff, had in his hands as her guardian a certain sum for which he was accountable, that when plaintiff became of legal age defendant represented to her that he had not the money with which to make final settlement and that if she would sign a receipt for the money so that he could make and file his report he would deed her certain land to secure the payment of the amount due her, which he agreed to pay with interest on a reconveyance to him, that she assented to such arrangement and signed the receipt, that defendant filed his final report and procured a discharge, but that he has not paid plaintiff, though plaintiff executed and tendered to him a deed of reconveyance and demanded payment, and alleging further that she brings such deed into court for defendant’s use, and praying judgment for the sum named, although embracing facts consistent with the theory of a complaint to declare and enforce a trust, presents an action at law for the recovery of money, properly triable by jury, pp. 276,277.</p> <p>3. Trusts. — Constructive Trusts. — Right of Beneficiary to Repudiate. — Actions.—One whose money has been obtained by another under circumstances giving rise to a constructive trust may repudiate or ignore the trust and bring an action at law to recover the amount, p. 277.</p> <p>4. Trial —Peremptory Instructions. — A peremptory instruction should be given only where there is a total absence of evidence on some essential issue, or where there is no conflict in the evidence and the only inference that may be drawn therefrom favors the party asking the instruction, p. 278.</p> <p>5. Guardian and Ward. — Actions.—Trial.— Peremptory Instructions. — In an action against plaintiff’s former guardian to recover the amount due plaintiff on final settlement of the guardianship, the giving of a peremptory instruction to find for defendant cannot be sustained, where there was evidence tending to show that defendant at the time of making his report was chargeable with the sum claimed by plaintiff, that he was unable to and did not pay plaintiff and that he conveyed land to her as security for the amount, with the understanding that he would pay her in about five years on reconveyance of the land to him, nor can such instruction be justified on the theory that plaintiff’s action was barred by the statute of limitations, in view of the fact that the action was on the contract and the statute had not run as against it, although an action based upon the default of the guardian at the time of making final report would have been barred, pp. 270, 281.</p> <p>6. Guardian and Ward. — Relation.—Bxpiration of Trust. — The relation of guardian and ward is a continuing trust which expires by limitation of law when the ward arrives at the age of twenty-one years, except that under some circumstances it may be continued for purposes of settlement, p. 280.</p> <p>7. Guardian and Ward.— Majority of Ward.— Termination of Trust.— Relation.— Actions.— Statute of Limitations.— On the arrival of a minor ward at the age of twenty-one years the relation of debtor and creditor arises as between himself and his guardian respecting any balance in the hands of the guardian unpaid and unaccounted for, giving the ward a right of action against the guardian personally without prior demand, and such an action is barred by tbe statute of limitations in sis years after the ward becomes of age. p. 281.</p>

<p>From Marion Circuit Court (18,901); Charles Bemster. Judge.</p> <p>Action by Fannie E. "Wheatcraft and another against Harvey H. Wheatcraft. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>From Warrick Circuit Court; Roscoe Eiper, Judge.</p> <p>Action by Jobn W. Patterson against the Indiana Life Endowment Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Jacob A. Horner against James H. Newman and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Tkial.— Instructions.— Inferences from Facts Proved.— Negligence. — While it is error to tell a jury what inference it shall, must, or ought to draw from certain facts, the court does not invade the province of the jury by stating in an instruction that negligence might be inferred if certain facts were found to be proved, but is thereby exercising the prerogative and duty of the court, p. 305.</p> <p>2. Negligence.— Presumptions.— Trial. — Instructions¿—Proof that all the instrumentalities causing an injury were under the exclusive control and. management of defendant, that the accident was such as ordinarily would not' have occurred if due care had been exercised by defendant, and that a duty to exercise such care was owing the plaintiff from defendant, casts upon the defendant the presumption of negligence and the burden of explaining the accident consistent with due care on his part; hence an instruction that if defendant was to erect a scaffold to be used by plaintiff in placing a certain hopper for defendant, and knew the approximate weight of such hopper and was informed of the number of men that would be required on such scaffold, and accordingly caused the scaffold to be constructed, and that such scaffold broke and fell with plaintiff while he was in the act of placing such hopper, the jury could infer negligence in the construction, in the absence of other evidence as to the cause of the accident, was not objectionable as placing on defendant the burden of proving that it was not negligent, p. 306.</p> <p>8. Appeal. — Review.—Admission of Bvidence. — Sufficiency of Motion to Strilce. — In an action for xiersonal injuries from the fall of a scaffold furnished by defendant for plaintiff in the performance of certain work for defendant, where plaintiff, on direct examination, testified that after the accident he had examined the piece of timber which broke in the scaffold, and again on redirect examination was examined concerning it, and then on recross-examination it was developed that he had no personal knowledge that the timber examined had been a part of the scaffold, a motion “to strike out the evidence on that piece of timber because he is testifying as to hearsay”, was not sufficiently specific and the overruling of the same was not error, p. 808.</p> <p>4. Negligence.— Answers to Interrogatories. — Verdict.—Contributory Negligence. — In an action for personal injuries from the fall of a scaffold erected by defendant for the use of plaintiff in placing a certain hopper for defendant, answers by the jury to interrogatories showing that he saw the scaffold erected, that after he went on it he heard it crack with a sound as though breaking, that he then made an examination to see if it was strong enough to bear the strain of raising the hopper, said he believed it was all right, and then went ahead with the work, and also showing that he was not familiar with the construction of scaffolds and was incompetent to discover that the scaffold was weak or defective by examination thereof either before or after going on same, do not show that plaintiff was guilty of contributory negligence, and are not in conflict with tlie general verdict for plaintiff. p. 308.</p>

<p>.From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Action by John P. Taylor against the Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Mariou County (82,964); Charles J. Orbison, Judge.</p> <p>Hotter, P. J. — Appellants, as trustees of the Second Second Baptist Church in Indianapolis, against Frances E. Broyles and others. From a judgment for plaintiffs, the plaintiffs appeal.</p>

Prom Lake Superior Court; Virgil S. Reiter, Judge. Action by tbe State of Indiana, on tbe relation of Charles E. G-reenwald, Prosecuting Attorney in and for tbe Tbirtyfirst Judicial Circuit, against Alexander G-. Schlicker. Prom a judgment for defendant, tbe relator appeals.

<p>1. Appeal. — Briefs.—Questions Reviewed. — Although much of appellant’s brief is not in conformity to clause 5 of Rule 22, where appellees’ brief, though in the main devoted to pointing out the defects of appellant’s brief, supplies some facts and discusses the merits of some of the questions, the court will decide such quesr tions as are definitely ascertainable from a consideration of both briefs, p. 326.</p> <p>2. Wills. — Estates Created. — Life Estate with Power of Disposition. — A devise of an estate in lands to a person generally or indefinitely with a power of disposition carries the fee, but where by clear and definite language the testator expressly gives to the first taker an estate for life only, coupled with a power of disposition, the express limitation of the grant to an estate for life controls, and such devisee does not acquire the fee, but takes for life only, with such power of disposition as the will authorizes, p. 327.</p> <p>3. Wills.— Construction.— Intention of Testator. — Ascertainment of Devisee. — The pole star in the construction of a will is the intention of the testator, and to ascertain and give effect to such intention, courts may hear evidence of extrinsic facts for the purpose of removing latent ambiguities and to enable them to identify either the subject-matter or object of the testator's bounty, and a bequest will not be avoided if the intent can thus be established with reasonable certainty; hence a devise to “The Odd Fellows’ Orphan Home at Greensburg, Decatur County, Indiana”, was not void on the ground that there was no organization by that name, where the evidence and the findings show that the testator intended the Odd Fellows Home at Greensburg. p. 327.</p> <p>4. Tbial. — Verdict.—Scope.—A general verdict includes a finding of every issuable fact essential to its support, p. 329.</p> <p>5. Appeal. — Review.-—Harmless Error. — Instructions.—An instruction objected to on the ground that it authorized the consideration of circumstances not shown by the evidence, was harmless when considered with other instructions clearly and definitely limiting the jury to the consideration of the facts and circumstances shown by the evidence, p. 330.</p> <p>6. Appeal. — Questions Reviewdble.— Objections to Evidence. — A mere suggestion of error or even a general objection to the admission of evidence is not sufficient to present any question on appeal as to its admissibility, p. 330.</p> <p>7. Appeal. — Objections to Evidence. — Waiver.—Briefs.—Questions relating to the admissibility of evidence are waived by the failure of appellant’s brief to contain a statement of any propositions or points relating thereto, and also by a failure to contain a condensed recital of the evidence in narrative form as required by Rule 22. p. 330.</p> <p>8. Appeal. — Revieio. — Disposition of Cause. — Where it appears that substantial justice has been done in the trial court, the court on appeal will not disturb the judgment on alleged intervening errors not affecting the substantial rights of the parties, p. 331.</p>

From Madison Circuit Court; Charles K. Bagot, Judge. Action by tbe State Bank of Chrisman against tbe estate of Silas M. Busby, deceased, and from a judgment for plaintiff, the administratrix appeals.

Prom Huntington Circuit Court; Joseph W. Adair, Special Judge. Proceedings by the City of Huntington for the assessment of land, for street improvements. Prom a judgment awarding damages to Roscoe A. Kaufman, the city appeals.

<p>It Appeal. — Decision.—Evidence.—Where there is any evidence to support the decision of the trial court, a reversal on the ground of insufficient evidence will be denied, p. 318.</p> <p>2. Principal and Agent.— Testimony of Agent.— Admissibility.— The rule that the declarations of an alleged agent are not admissible against the alleged principal to prove the fact of agency does not disqualify an agent from testifying as to the authority given him by his principal, and the extent and character thereof, where such authority is verbal, p. 348.</p> <p>3. Appeal. — Review.—Evidence.—Where no objection was made to any evidence admitted on an issue, all the evidence in support of the decision of the trial court on that issue will be considered by the court on appeal, p. 348.</p> <p>4. Principal and Agent.— Authority of Agent.— Evidence.— Sufficiency. — The testimony of an agent that he had authority to purchase goods for his principal is sufficient to sustain a decision for plaintiff in an action against the principal for a breach of the contract of purchase, p. 348.</p>

<p>Prom Dekalb Circuit Court; Frank M. Powers, Judge.</p> <p>Action by Perry Carnahan against Thomas Shull and another. Prom the judgment rendered, the plaintiff appeals.</p>

From Gibson Circuit Court; Harclis F. Clements, Judge. Action by Lena Robertson, as administratrix of the estate of Roy R. Robertson, deceased, against the Evansville Gas and Electric Light Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Taxation.' — Tax Deeds.- — Validity.—Defective Description. — A tax deed to land forming a part of survey No. 17, containing 200 acres, based on descriptions in the various tax records as part of lot 17, township 1, range 10, 100 acres, was wholly ineffective to convey title, since the description was insufficient to identify the land sought to be conveyed, p. 367.</p> <p>2. Taxation. — Records. — Description. — Sufficiency. — It is the policy of the law to preserve and enforce the lien of taxes, and courts will sustain descriptions in tax records to enforce such lien which would be insufficient to convey title by a tax deed based thereon, p. 368.</p> <p>3. Taxation. — Tax Deeds. — Validity.— Presumptions. — The presumption arising from the prima facie case made upon the question of title under §10380 Burns 1908, Acts 1891 p. 199, §206, providing that a tax deed shall be prima facie evidence of the regularity of the sale and all prior proceedings, as well as prima ¡acia evidence of the premises described in the deed, and of a good and valid title in fee simple in the grantee of such deed, is subject to be rebutted by evidence showing the description to be so defective as to render the deed ineffectual to convey title, p. 309.</p> <p>4. Appeal. — Weighing Evidence. — Records.—It is the province of the court on appeal to declare what force and effect shall be given to evidence consisting entirely of records, p. 369.</p> <p>5. Deeds.— Title of Yendor.— Bona Eide Purchaser.— Statutes.— The grantee in a quitclaim deed from one who had been divested of his rights and interest by sale in bankruptcy proceedings took no title unless ho was at the time a good faith purchaser for a valuable consideration within the meaning of §3902 Bums 1908, §2931 R. S. 1881. p. 370.</p> <p>6. Vendor and Purchaser. — Evidence as to Purchase in Good Faith. — Burden of Proof. — The grantee in a quitclaim deed from one who had been divested of his rights and interest, if he relies on such deed to establish title in himself, has the burden of proving that he was a purchaser in good faith and for a valuable consideration, without notice either actual or constructive of the rights of the person to whom the title of his grantor had previously passed, p. 370.</p> <p>7. Deeds. — Quitclaim Deed. — Effect.—Except in so far as the grantee in a quitclaim deed may be protected by the recording act, the effect of such a deed is limited to the estate or interest held by the grantor at the time of its execution, p. 371.</p> <p>8. Vendor and Purchaser.— Bona Fide Purchaser.— Purchaser Under Quitclaim Deed. — The grantee in a quitclaim deed may be entitled to the protection afforded a bona fide purchaser on establishing by proof that the purchase was in good faith and that the consideration paid was a fair price, p. 371.</p> <p>9. Vendor and Purchaser.— Bona Fide Purchaser.— Evidence.— Sufficiency. — Where one seeking to establish title in himself by virtue of a quitclaim deed from a grantor who bad been divested of all right and interest in the land conveyed failed to prove that the consideration paid was a fair or reasonable price for the land, the evidence failed to show that he was a bona fule purchaser for value and was insufficient to sustain a verdict on the theory that he acquired title by such deed. p. 372.</p>

<p>From Laporte Superior Court; Harry B. Tutkill, Judge.</p> <p>Actiou by Seth Nelson against the Chicago, Lake Shore and South Bend Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Lake Superior Court; C. B. Tinlcham, Special Judge.</p> <p>Action by tke Pabst Brewing Company against Anna Schuster and others. Prom the judgment rendered, the plaintiff appeals.</p>

<p>Prom Superior Court of Marion County (81,267) ; Clarence E. Weir, Judge.</p> <p>Action by TIenry E. Dautrich against William B. Burford. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Replevin. — Pleading.—Counterclaim.—A counterclaim is a proper pleading in an action of replevin when the facts set up therein are so connected with the subject of the action that equity requires that the matter alleged in the complaint and the counterclaim should all be settled in the same litigation. (Baldwin v. Burrotos [1884], 95 Ind. 81, and Shipman Coal Co. v. Pfleffer [1895], 11 Ind. App. 445, distinguished.) pp. 395, 396.</p> <p>2. Replevin.— Pleading. — • Counterclaim.— In an action to replevy an automobile left with defendant for repairs, a counterclaim setting up a demand in favor of defendant arising out of repairs made by him while the property was in his possession, was properly pleaded, p. 396.</p>

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Albert H. Knight and others against William H. Deemer and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Trial.— Verdict.— Answers to Interrogatories. — A general verdict for plaintiff decides all the material issues in his favor, and is not overcome by the jury’s answers to interrogatories except when there is such antagonism between them that both cannot stand. x>- 401.</p> <p>2. Appeal.— Review.— Verdict.— Answers to Interrogatories.— In reviewing the ruling on a motion for judgment on the jury’s answers to interrogatories, the court on appeal can look only to the pleadings, general verdict and the answers to the interrogatories, and can indulge no intendments or presumptions in favor of such answers, but must reconcile them with each other and with the general verdict, if it reasonably can be done. p. 401.</p> <p>3. Master and Servant.— Injuries to Servant.— Trial.— Ansioers to Interrogatories. — In a servant’s action for injuries from the breaking of a ladder, the jury by its answers to interrogatories showing that persons using the ladder or looking at it from the ground could not see that it was defective, and that plaintiff did not know that it was defective, considered in the light of other answers showing that the ladder was worn and old and in a dilapidated condition and that the rung which broke could be seen by one using the ladder or looking at it from the ground, and that the ladder was defective and that the rung broke because worn from use, evidently used the word “defective” as meaning “so weak as to be liable to break”, and did not mean to say that one using the ladder or looking at it from the ground could not know its worn, old and decayed, condition; hence such interrogatories did not conflict with each other, and the rendition of judgment for defendants thereon was not erroneous, p. 401.</p> <p>4. Master and Servant. — Injuries io Servant. — Knowledge of Defects. — Assumption of Risk. — An adult servant of ordinary intelligence is presumed to have been capable of ascertaining every fact which could have been apprehended by the senses of a person having the same opportunities in relation to the dangerous conditions which caused the injury; and will be held to have assumed the risk, even though such danger was created by his master’s negligence, p. 404.</p> <p>5. Master and Servant. — Injuries to Servant. — Assumption of Rislc. — A ladder is a simple implement requiring only average intelligence to comprehend the dangers of its use, so that where an employe, who was injured by the breaking of a ladder, knew that such ladder was worn and old, he was chargeable with knowledge that it might break under his weight in using it, and assumed the risk thereof, even though the master was negligent in permitting him to use it. p. 405.</p>

<p>Prom. Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by John P. Sullivan against the Indianapolis, Crawfordsville and Western Traction Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by John J. Egan against the Louisville and Southern Indiana Traction Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom. Henry Circuit Court; Ed Jackson, Judge.</p> <p>Action by Eric C. Morgan, administrator of the estate of John M. Beavers, deceased, against George Bess. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Delaware Circuit Court; Frank ElUs, Judge.</p> <p>Action by Mary Lee against Susan Templer. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Subsequent Appeal. — Law of the Case. — Sufficiency of Complaint. — A former judgment on appeal rules the case on a subsequent appeal involving the same questions, so that where in the former opinion the court on appeal in holding the complaint sufficient said that its sufficiency depended “upon the construction of the lease made by appellee to appellant”, and then set out the portions of the lease pertinent to the questions under consideration, appellant on a subsequent appeal of the same case cannot urge the objection that the former appeal did not adjudicate the sufficiency of the complaint as against the objection that the lease was not properly made a part thereof, since that was a subsidiary question that was necessarily determined when the complaint was considered and held good. p. 441.</p> <p>2. Appeal.— Subsequent Appeal.■ — Law of the Case.— Incidental and Subsidiary Q'liestions. — Although, as to incidental questions that were not considered and decided on a former appeal, the decision is not conclusive or binding on the court on a subsequent appeal of the same case, where such subsidiary and incidental questions were necessarily involved and the decision could not have been reached in the absence of either an express or implied decision of such questions, the judgment on such former appeal rules the case throughout all its subsequent stages either in the nisi prim courts or courts of appellate jurisdiction, p. 442.</p> <p>S. Appeal.— Briefs.— Sufficiency.— Good Faith Effort.— Although appellant’s briefs are subject to criticism as not fully complying with the rules of court, where they disclose a good faith effort to comply therewith, such questions as may be definitely ascertained therefrom will be considered and decided, p. 442.</p> <p>4. Landlord and Tenant.— Construction of Lease.— Former Appeal. — Even though the court on a subsequent apx>eal of the same case believed that the construction placed ujion a lease by the court on the former appeal was incorrect, such former decision would control, p. 442.</p> <p>5. Trial. — Issues.—Misleading Instructions. — Where a lease provided that the lessee was to build a barn “on some part of the above described real estate owned by the lessor”, but such lease did not cover all the land of the lessor which was described therein, and the complaint alleged that “plaintiff and defendants after the execution of said lease further agreed that said written lease should be further changed in that the barn provided for should be built” according to certain specifications, instructions telling the jury that the substance of the complaint was that the lease should be changed “so that defendants were to build a barn on plaintiffs real estate so leased to defendants”, etc., were misleading and confusing as to the issue tendered by such complaint, p. 443.</p> <p>6. Appeal. — Review.—Instructions.—Although an instruction that “defendant’s answer in general denial * * * places upon him the burden of proving every material allegation of his complaint” was erroneous in the use of the word “him” instead of “plaintiff”, the question of whether it was prejudicial was immaterial in view of reversible error in other instructions, p. 444.</p> <p>7. Trial.— Issues.— Misleading Instructions.— In an action on a lease, where the answer alleged that the actual agreement was that lessee was to clear fifteen acres every two years and that by mutual mistake the lease did not express the real agreement, and the prayer was for a reformation of the lease to express such agreement, an instruction that the substance of defendants’ answer was that defendants were only to clear fifteen acres every two years “instead of fifteen acres every year as alleged by the plaintiff”, was misleading in that it indicated that defendants were relying on the lease as written, whereas the real issue tendered by the answer was that of the reformation of the lease to express the actual contract, p. 444.</p> <p>8. Trial. — Issues.—Misleading Instructions. — In, an action involving an issue as to the reformation of the lease sued on, an instruction as to the burden of proof under the pleading tendering such issue, stating that “reformation is a much more delicate remedy than rescission”, was erroneous, since there was no issue involving rescission and the instruction left the jury to speculate on the suggested comparison, p. 445.</p> <p>O. Trial.— Instructions.— Burden of Proof.— An instruction that defendants had the burden of proving their counterclaim by a fair preponderance of the evidence, and that such “evidence must be of the most persuasive character” was erroneous in specifying the character of evidence required, p. 445.</p> <p>10. Reformation of Instruments. — Contracts.—Burden of Proof. —One seeking the reformation of a contract must clearly and fully establish by a fair preponderance of the evidence the provisions of the actual contract between the parties, that the instrument fails to express such contract, and that such failure was due to mutual mistake of fact or other ground authorizing such reformation, but he is not limited to making such proof by any particular kind or character of evidence, p. 445.</p>

<p>1. Appeal.— Record.— Failure to Shou? Judgment.— Dismissal.— Where the record on appeal does not disclose that any judgment was rendered by the trial court, the appeal is unfounded and a dismissal is required, p. 447.</p>

<p>From Knox Circuit Court; Orlando H. Coil), Judge.</p> <p>Action by John H. Keller and another against V. W. Dittman and another. From a judgment for plaintiffs, the defendants appeal.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Mina E. Tharp against Benjamin F. Updike and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>Prom Elkhart Superior Court; Vernon W. VanFleei, Judge.</p> <p>Action by The Goshen Churn and Ladder Company against Aaron Hartzler and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Assignment of Errors. — Waiver.—An assignment of error is waived by failure to discuss it in appellants’ brief, pp. 475, 482.</p> <p>2. Appeal. — Assignment of Errors. — Joint Assignment. — Sufficiency. — Where only one of several defendants movqd for a new trial, a joint assignment of error in the overruling of such motion presents no question, p. 482.</p> <p>3. Pleading. — Answer.—Former Adjudication. — In an action for the foreclosure of a mortgage, where defendants claimed that plaintiff had been given a chattel mortgage which was to be the primary security, and that because of plaintiff’s negligence in recording the same the lien thereof was lost, an answer setting up the judgment in an assignment proceeding by which plaintiff was precluded from any security under such chattel mortgage, was insufficient to present an issue of former adjudication as to such question of negligence, in the absence of averments as to who were parties to the proceeding, or as to what the issues were, or that any issue was formed on the question of whether such chattel mortgage was filed within the time required by statute, p. 483.</p> <p>4. Acknowledgments. — Sufficiency of Certificate. — Essentials for Recording. — Under §7472 Burns 1908, Acts 1897 p. 240, providing that as a prerequisite to the recording of a chattel mortgage, it shall be acknowledged as provided in cases of deeds of conveyance, and §3982 Burns 1908, §2947 B. S. 1881, providing what shall constitute a sufficient acknowledgment of any deed or mortgage, a certificate to a chattel mortgage merely stating that the mortgagors signed the instrument, was invalid, and such mortgage was not entitled to be recorded, p. 485.</p> <p>5. Chattel Mortgages. — Invalid Certificate of Aclcnowledgment.— Effect of Recording. — Where a chattel mortgage was not admissible to record because not bearing a proper certificate of acknowledgment, it was valid only as between the parties, and the recording of same within ten days after its execution could not extend its efficacy so as to affect even those having actual notice. p. 486.</p> <p>6. Mortgages. — Foreclosure.—Answer.—Sufficiency.—Negligence in Recording Chattel Mortgage. — In an action to foreclose a mortgage, an answer averring that plaintiff had been given a chattel mortgage which was to be the primary security, and that because of plaintiff’s negligence in recording the same the lien thereof was lost, was insufficient to constitute a defense to the action, where it also appeared that because of an invalid acknowledgment such chattel mortgage was not entitled to record, since actionable negligence can not be' predicated on any delay or neglect in filing an instrument for record where the act of recording can give it no added efficacy, p. 486.</p> <p>7. . Judgment. — Former Adjudication. — Burden of Proof. — Defendant, who tenders the issue of former adjudication, has the burden of proof thereon, p. 487.</p> <p>8. Trial. — Exceptions to Conclusions of Law.- — Effect.-—Exceptions to conclusions of law admit, for the purposes of the exceptions, that the facts within the issues were fully and correctly found, p. 487.</p> <p>9. Appeal. — Questions Reviewahle. — Ruling on Motion for New Trial. — Sufficiency of Special Findings. — The sufficiency of a special finding of facts is not tested by a motion for a new trial, where the ruling on such motion was not properly presented for review on appeal, p. 4S7.</p> <p>10. Trial. — Special Findings. — Sufficiency.—In an action to foreclose a mortgage, where defendants contended that plaintiff had been given a chattel mortgage which was to be the primary security, but that plaintiff had lost the lien of same by its negligence in recording it, a finding of facts showing that plaintiff was merely a nominal party in the proceeding in which plaintiff’s security under such chattel mortgage was denied, that the real party in interest was one of the defendants in the foreclosure suit, ajid that in such prior proceeding such chattel mortgage was adjudicated not to be a lien for the reason that it was not filed for record in -time, are consistent with and support the conclusion of law against the defendants on the issue that plaintiffs negligence in recording such chattel mortgage was adjudicated in such former proceeding, in the absence of a finding that plaintiff was charged with any duty with respect to recording same, p. 487.</p> <p>11. Chattel Mortgages. — Evidence.—Execution.—Presumptions.— The execution of a chattel mortgage is completed by delivery, and while, in the absence of a showing to the contrary, such an instrument will be presumed to have been executed on the day of the date it bears, it is always permissible to show the true date of execution, and to that end to show when it was delivered, even though the date thus established is different from the date which it bears on its face. p. 488.</p> <p>12. Trusts. — Action by Trustee. — Pleading.—In an action by the trustee of an express trust, the complaint should disclose the name of the cestui que trust, and show that the suit is prosecuted for his benefit, p. 490.</p> <p>18. Parties. — Designation.—Surplusage.—Where the plaintiff in an action to foreclose a mortgage was designated in the caption of the complaint as trustee, and the facts alleged showed that plaintiff was the real owner of the debt and the mortgage securing it, the use of the term trustee must be regarded as descriptio personae and therefore mere surplusage that could not affect the finding and judgment for plaintiff, p. 490.</p> <p>14. Bills and Notes. — Execution.—Delivery.—Delivery is the final step in the execution of a note, and the issue of its nonexecution can be raised only by an answer of non est factum, so that in an action where the notes involved were in plaintiff’s possession and were introduced in evidence without objection, and there was no issue formed respecting their execution, the special finding of facts was not insufficient for failure to include a specific finding that the notes in suit were delivered, p. 491.</p>

<p>Prom Laporte Circuit Court; John C. Richter, Judge.</p> <p>Action by Henry A. Zahrt and others against Olive Drebing and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Christopher H. Seigmund against Charles E. Williams. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Municipal Corporations. — Negligence.—Complaint.—Demurrer. —In an action against a town for injuries to an employe while at work on its streets, where the complaint was on the theory that the rule respondeat superior applied to the facts set out, objections on. demurrer thereto that the town could not be liable for the reason that it is a subdivision of the State and was at the time performing a State function were not applicable, p. 506.</p> <p>2. Municipal Corporations. — Ministerial Functions. — Street Paving. — In prosecuting the details of the work of paving a street a city performs a mere ministerial duty, and not one enjoined upon it as a subdivision of the State; hence it is not exempt from liability for injuries to its employe by its negligence in the prosecution of such work. p. 506.</p> <p>3. Master and Servant. — Injuries to Servant. — Complaint.—Conclusions. — In an action for injuries received while plowing a street preliminary to paving same, a complaint alleging that defendant knew that there was a plow specially designed for plowing hard streets with safety to those using same, that defendant failed to procure a good and improved plow for said purpose, but furnished an ordinary plow, knowing at the time that it was extrahazardous and dangerous to use a common plow for such purpose, was insufficient as stating mere conclusions, in the absence of averments showing in what respect the plow used was not suitable, or in what manner a different plow would have been better suited, p. 506.</p> <p>4. Master and Servant. — Injuries to Servant. — Duty of Master.— Tools and Appliances. — A master is not obliged to use the most improved appliances in Ms work, but is only required to use ordinary care to furnish safe appliances; hence a city is not chargeable with negligence in furnishing an employe an ordinary plow to be used in plowing a public street, p. 507.</p> <p>5. Master and Servant.— Injuries to Servant .— Assumption of Rislc. — Plaintiff, who was injured by being thrown from the beam of a plow on which he was riding while plowing a street, must be deemed to have assumed the risk, in the absence of allegations showing that he was unfamiliar with the plow and the uses to which it was put, since a man of common understanding must have known that if the point of the plow came in contact with anjr hard substance it would jump and be likely to throw a man riding on the beam so as to injure him. p. 507.</p> <p>O. Negligence.' — Action.—Pleading. — In common-law actions founded upon negligence, the negligence relied on must be charged in terms, or facts must be averred sufficient to compel the inference of negligence constituting the xiroximate cause of the injuries sustained, p. 508.</p> <p>7. Municipal Corporations. — Public Improvements.— negligence. —Placing an eight-inch sewer pipe fifteen inches under the ground in a public street is not negligence rendering the city liable for injuries to an employe engaged in plowing the street, caused by the plow coming in contact with such pipe. p. 508.</p> <p>S. Master and Servant. — Injuries to Servant. — negligence of Folíolo Servants. — An employe injured while engaged in plowing a street cannot recover if the injury resulted from the negligence of fellow servants in the operation of the plow. p. 508.</p> <p>9. Master and Servant.— Injuries to Servant.— Complaint.— Authority of Foreman. — In an action for injuries to a servant alleged to have occurred while working under the order or direction of an agent or servant of defendant, the complaint must show that such person had authority to give such order or direction. p. 509.</p>

From Jasper Circuit Court; Charles W. Hanley, Judge. Action by James W. Johnson against James M. Hallagan and another as executors of the will of Patrick Hallagan, deceased. Prom a judgment for plaintiff, the defendants appeal.

<p>1. Appeal. — Review. — Insufficient Briefs. — Affirmance. — Appellant’s failure to comply with the rules of tbe court in the preparation of his brief, to the extent that no question is presented, requires an affirmance of the judgment appealed from. p. 517.</p> <p>2. Appeal. — Briefs.—Curing Defects. — Reply Brief. — Omissions in appellant’s original brief pointed out by appellees’ brief cannot be cured by supplying them in the reply brief, p. 517.</p>

<p>Prom Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by William P. Baker against Prank Osborne and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>1. Trespass.— Trespass to Land. — “Innocent Trespasser”.— “Wilful Trespasser”. — One who unawfully, but inadvertently or unintentionally, and in the honest and reasonable belief that he is exercising his own right, enters upon the lands of another and removes therefrom sand or other minerals, or cuts and removes therefrom growing timber, is an “innocent trespasser”; and one who unlawfully enters, recklessly or wilfully, or with an actual intent to do so, and removes any such substance is a “wilful trespasser”. p. 527.</p> <p>2. Appeau. — Bevieto.—Bindings.—In reviewing the action of the trial court for the purpose of determining whether there was error in assessing the amount of damages, only such evidence as tends to sustain the finding of the trial court can be considered, p. 528.</p> <p>8. Trespass. — Wilful Trespass. — Evidence.—Evidence that defendant entered upon the land of plaintiff, without plaintiff’s consent, and removed sand therefrom, knowing at the time that the land belonged to plaintiff, was sufficient to support a finding of wilful trespass, though defendant’s evidence showed that notwithstanding its knowledge of the facts it believed it had a right to remove such sand, since knowledge of the facts requires a presumption that the law applicable thereto is also known, p. 528.</p> <p>4. Trespass. — Trespass to Land. — Trespass De Bonis Asportatis.— An action to recover the value as personal property of sand taken and removed from plaintiff’s land by defendant, where no damages were sought for injury to the land caused by defendant’s acts, is in the nature of trespass de "bonis asportatis, rather than trespass quare clausum fregit. p. 529.</p> <p>5. Trespass. — Trespass De Bonis Asportatis. — Innocent Trespass. —Measure of Damages. — In an action to recover the value of mineral substance wrongfully taken from the land of plaintiff, where the trespass was innocent, and trespass to the land, as such, is not involved, the proper measure of damages is the value of the substance at the time and place where the trespasser converted it to his own use, less the amount such value was enhanced by his labor and expense, p. 529.</p> <p>O. Trespass. — Trespass De Bonis Asportatis. — Wilful Trespass.— Measure of Damages. — In an action to recover the value of sand wrongfully taken from the land of plaintiff, where trespass to the land, as such, is not involved, and the trespass complained of is within the class denominated as wilful, the measure of damages is the value of the sand at the time and place of the conversion, or the highest market price at any time between the severance and the conversion, deducting nothing on account of labor or expense, p. 539.</p> <p>7. Trespass. — Trespass De Bonis Asportatis. — Time and Place of Conversion. — The time and place of the conversion of any substance, such as sand or mineral, taken from the land of another, vary with the circumstances of'each case, and may be the time and place of demand, or of sale, or of the consummation of the conversion by the removal of the substance from the owner’s land, p. 531.</p> <p>8. Trespass. — Excessive Damages. — Trespass De Bonis Asportatis. —In an action for the value of sand wilfully taken from plaintiff’s land without her consent, under evidence showing that it was worth fifteen cents a cubic yard on cars at the pit, that the cost of loading was from four to five cents per cubic yard, that the freight to the place of sale averaged, twenty cents per cubic yard, that it sold for from thirty-five to fifty cents per cubic yard, and that at least 31,717 cubic yards of sand were thus taken and sold by defendant, a judgment for 13,698.15 was not excessive, p. 532.</p> <p>9. Damages.— Exemplary Damages.— Determination. — Exemplary damages is a sum assessed in addition to compensatory damages, and the amount that may ‘be assessed as exemplary damages rests in the sound discretion of the jury, or of the court where the court tries the facts, p. 532.</p>

<p>1. Taxation. — Recovery of Taxes Paid. — Voluntary Payment Under Protest. — In the absence of statutory authority therefor, there can be no recovery of taxes voluntarily paid, even though paid under protest, p. 537.</p> <p>2. Taxation.— Recovery of Taxes Paid.— Complaint.— Excessive Tax. — Where tax in aid of railroad construction was levied in excess of the amount authorized, a complaint for the recovery of the tax thus levied upon plaintiff’s property, which proceeded on the theory that the entire tax was invalid, and averred that plaintiff had paid the entire amount on compulsion and under protest, was insufficient, even if a recovery of the amount in excess of the authorized amount could be had, in the absence of allegations that plaintiff offered to pay the portion represented by a correct per centum of levy, or that the officer threatened to levy and sell his property for such excess alone. (DuBois v. Board, etc. [18941, 10 Ind. App. 347; Board, etc. v. Bonn [1889], 117 Ind. 410; and Evansville, etc., R. Co. v. Hays [1889], 118 Ind. 214, distinguished.) p. 537.</p> <p>3. Taxation. — Excessive Levy. — Validity.—A levy for taxes in aid of railroad construction is not invalid from the fact that the per centum fixed will produce an amount in excess of the amount of taxes authorized, where such excess as to each taxpayer’s property is so small as to come within the maxim de minimis non curat lex, and especially in view of the language of §9577 Burns 1908, Acts 1899 p. 117, which seems to contemplate that a levy of taxes in such cases may necessarily result in an excess fund, p. 539.</p> <p>4. Taxation. — Recovery of Tasoes Paid. — Statutes.—Sufficiency of Complaint. — A complaint to recover from a township taxes paid by plaintiff in aid of railroad construction, which shows no demand of, or application to the board of county commissioners by claim or otherwise while such taxes were in the hands of the county treasurer, but which shows that the same were paid over to the township trustee, does not state a cause of action within the provisions of §6088 Burns 1908, §5813 R. S. 1881, authorizing the refund out of the county treasury of taxes wrongfully paid, so far as the same were assessed and paid for county taxes, p. 541.</p> <p>5. Taxation. — Penalties for Nonpayment. — Statutes.—Taco in Aid, of Railroads. — Under §5476 Burns 1908, §4056 R. S. 1881, providing that taxes in aid of railroad construction are to be collected as other taxes are collected, the collection of the penalty for delinquency provided by §10321 Burns 1908, Acts 1897 p. 162, is authorized in case of delinquency in the payment of such tax. p. 541.</p> <p>6. Taxation. — Penalties for Nonpayment.• — Recovery of Penalties Paid.— Complaint.— A penalty collected for delinquency in the payment of tax in aid of railroad construction, even if unauthorized, cannot be recovered on a complaint which does not show that the payment of such penalty was procured by fraud, or by mistake of fact, or that it was an involuntary payment Within the meaning of the law. p. 543.</p>

<p>1. Street Railroads. — Injuries to Persons on Trades. — Last Clear Chance. — Instructions.—Harmless Prror. — In an action for injuries to a child while crossing a street car track, an instruction on the doctrine of last clear chance, though erroneous in stating-that plaintiff would be entitled to recover if the motorman by reasonable care on his part could have known that the child was in danger in time to stop the car and avoid the injury, and failed to do so, was harmless in view of such motorman’s undisputed testimony that he saw the child, p. 545.</p> <p>2. Damages. — Injur a to Child. — Loss of Service. — In an action by a parent for injuries to his child, the measure of damages is the value of any services which the evidence shows that plaintiff has lost and will probably lose during the minority of the child as a result of such injuries, or any diminution of the value of such services which the evidence shows has resulted or will probably result therefrom during such period, less the reasonable cost of its support and maintenance, p. 545.</p>

<p>1. Pleading. — Theory.—Sufficiency.—A pleading should proceed on a certain and definite theory, and its sufficiency should be judged and determined on that theory, p. 553.</p> <p>2. Appeal. — Iievicio.—Sufficiency of Pleadings. — On appeal the sufficiency of a pleading will be determined with reference to its theory as adopted in the trial court, p. 558.</p> <p>3. Guardian and Ward.- — Accounting and Settlement. — Opening and Vacating. — Statutes.—By virtue of §3074 Burns 1008, §2527 R. S. 1881, providing that the bond given by any guardian may be put in suit by any person entitled to the estate, “and such suit shall be governed by the law regulating suits on the bonds of executors and administrators”, an action to set aside a guardian’s final settlement may be maintained under §2925 Burns 1908, §2103 R. S. 1881, providing for setting aside and vacating the final settlement of decedents’ estates, although not expressly authorized by the latter section, p. 554.</p> <p>4. Executors and Administrators. — Actions.—Complaint.—Demurrer. — -A demurrer for want of facts addressed to the complaint of an administrator raises the question of whether it states a cause of action in his favor in the capacity in which he sues, p. 555.</p> <p>5. Guardian and Ward. — Opening and Vacating Settlements. — Complaint. — Persons Entitled to Maintain Action. — While the language of §2925 Burns 1908, §2403 R. S. 1881, under which an action to open and set aside the final settlement of a guardian may be maintained, discloses a legislative intent to limit its application to such persons only as are adversely affected by the mistake, fraud or other illegality which entered into the settlement, where the property sought to be recovered is personal property of a deceased ward, the action should be prosecuted by the administrator of his estate, since by operation of law such property goes to the administrator; hence the complaint in such an action by an administrator was not insufficient, although it disclosed an interest in the heirs of the deceased ward which seemingly brought them within the spirit of the statute as being the proper parties to maintain the action, p. 555.</p> <p>6. Guardian and Ward. — Opening and Vacating Settlements.— Statutory Provisions. — Although §2925 Burns 1908, §2103 R. S. 1881, providing for opening and setting aside settlements of decedents’ estates, and under which an action may be maintained to open and set aside the settlement of a guardian, expressly restricts the right of action to any person interested who was neither present at the final settlement nor personally summoned to attend the same, such restriction does not apply where the action is to set aside the settlement of a guardian, for the reason that no notice of final settlement of a guardianship is required except where made under §3070 Burns 1008, §2523 R. S. 1881, providing for settlement of estates of deceased wards in certain cases without administration, p. 556.</p> <p>7. Guardian and Ward. — Action to Open and Vacate Settlement.— Complaint.- — Harmless Error. — Although a complaint, under §2925 Burns 1908, §2403 R. S. 1881, to set aside the final settlement of a guardian should aver that plaintiff was neither personally present at the settlement, nor summoned to appear, the error in overruling the demurrer to the complaint in such an action brought by the administrator of a deceased ward, for failure to contain such averment, was harmless, where plaintiff was permitted to prove that he had not qualified at the time of the settlement and could not have been present as such administrator, p. 557.</p> <p>8. Appeal.' — Review.—Objections to Evidence. — A general objection to the admission of evidence, without the statement of any reason, is not available on appeal, p. 557.</p> <p>9. Guardian and Ward. — Action to Open and Vacate Settlement.— Complaint. — Sufficiency.—A complaint bj' the administrator of the estate of a deceased ward against the guardian to set aside the latter’s final settlement, alleging facts showing that none of the charges made by such guardian were legal or proper, and that his report showed an appropriation of all the funds and an indebtedness due him from his ward, was not open to the objection that it failed to show an injury to plaintiff from the mistake or fraud complained of. p. 558.</p> <p>10. Guardian and Ward. — Protection of Ward’s Interests. — The law jealously guards the interests of those whose estates are in the care and keeping of the courts, p. 558.</p> <p>11. Guardian and Ward. — Opening and Vacating Settlements.— Concealment or Misrepresentation Toy Guardian. — A guardian, being an officer of the court, is under obligation to make full and true disclosures in his reports of all matters materially affecting his trust of which he has knowledge, so that any misrepresentation Or concealment, whereby an approval of a settlement giving him an unfair advantage is procured, will vitiate such settlement and remove the foundation upon which the approval and order of the court rests, p. 558.</p> <p>12. Guardian and Ward. — Opening and Vacating Settlements.— Complaint. — Inferences from Facts Averred. — A complaint to set aside a settlement made by a guardian, though merely mentioning the guardian’s reports by way of reference, explanation or recital, Is not insufficient as failing to allege that any current report or final settlement was made, where the facts alleged justify the inference that such reports and final settlement were made and filed, p. 559.</p> <p>13. Pleading.— Complaint.— Omissions.— Cure by Answer.— The omission, in a complaint to set aside the settlement of a guardian, to allege that his reports and final settlement had been approved, was cured by defendant’s answer alleging such filing and approval. p. 559.</p> <p>14. Guardian and Ward. — Accounting and Settlement. — Opening and Vacating. — Limitation of Actions. — While an ordinary action by the administrator of a deceased ward against the guardian for money had and received would be controlled by the six years’ statute of limitations, an action under §2925 Burns 1908, §2403 R. S. 1881, to set aside the final settlement of such guardian) must be brought within three years from the date of the settlement sought to be set aside, p. 560.</p> <p>15. Appeal. — Remeto.—Harmless Error. — Ruling on Demurrer to Answer. — Overruling the demurrer to an answer, in an action under §2925 Burns 1908, §2403 R. S. 1881, to set aside the settlement of a guardian, averring that the cause of action did not accrue within either the five or six year period of limitation, was harmless, where the undisputed evidence, admitted without objection, shows that the settlement was made less than three years before the bringing of the suit. p. 561.</p> <p>16. Guardian and Ward. — Action to Open and Vacate Settlement. —Admission of Evidence. — In an action to set aside the final settlement of a guardian, the admission of the testimony of the probate commissioner as to certain proceedings and statements made by the guardian when his reports were filed and acted upon, was proper, p. 561.</p> <p>17. Guardian and Ward. — Action to Open and Vacate Settlement. —Exclusion of Evidence. — A contract by those who expected to inherit the real estate of an insane ward, made with reference to such real estate, and under which the guardian was to care for said ward, while made for the ward’s benefit, affected their interests alone in his real estate, so that, in an action after the ward’s death by the administrator of his estate against the guardian to open and vacate the final settlement, evidence on behalf of the guardian showing a demand that the heirs comply with their agreement, and their refusal, was properly excluded, p. 5621</p> <p>18. Appeal. — Review.— Evidence.— Sufficiency.— Where each material averment of the complaint has some evidence for its support, a judgment for plaintiff will not be reversed on the ground of insufficient evidence, p. 562.</p>

From Superior Court of Marion County (81,889); Joseph Collier, Judge. Action by George W. Laughlin and another, as partners, against Virgil E. ITouser and others. Prom a judgment for plaintiffs, the defendants appeal.

From Superior Court of Marion. County (79,341) ; Vinson Carter, Judge. Action between William D. Huber and others and Henry W. Tielking and others. From the judgment rendered, William D. Huber and others appeal.

<p>Prom Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Mignon Stubbs and another against The Bankers Life Association. Prom a judgment for defendant, the plaintiffs appeal.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by Charles T. Akin against Mayme Wolf. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Circuit Court; Charles Bemster, Judge. Action by Nellie R. Emerick, by ber next friend, James H. Amsden, against the United States Health and Accident Insurance Company. From a judgment for plaintiff, the defendant appeals.

<p>From Dubois Circuit Court; John L. Brets, Judge.</p> <p>Action by Francis M. Fisher against the Southern Railway Company and another. From a judgment for defendants, the plaintiff appeals.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by Matilda C. Guffin, administratrix witli the will annexed of the estate of Henry IT. Guffin, deceased, against Lemuel S. Todd. From a judgment for plaintiff, the defendant appeals.

Prom Lake Superior Court; Johannes Kopelke, Judge. Action by James P. Scanlan against John M. Kelley and others, in which the Condit-McGinnity Realty Company and another were made garnishee defendants. Prom a judgment for plaintiff, the principal defendants appeal.

<p>1. Appeal. — Questions Reviewable. — Briefs.—No question is presented on alleged error in sustaining a demurrer to a paragraph of set-off, where neither the demurrer nor the substance is set out in appellant’s brief, p. 616.</p> <p>2. Appeal. — Presentation of Questions Beloio. — -Instructions.—All questions upon alleged errors of the trial court in the giving or refusal of instructions must be presented by motion for a new trial, p. 616.</p> <p>8. Appeal. — Questions Reviewable. — Briefs.—Where neither the motion for a new trial, nor its substance, appears in appellant’s brief, error can not be predicated upon rulings of the trial court with respect to the giving or refusal of instructions, even if the questions are otherwise properly presented, p. 616.</p> <p>4. Appeal. — Assignment of Errors. — Sufficiency.—An assignment that “the court erred in giving instructions Nos. 4 and 5 and in refusing to give all of the instructions asked by appellant,” presents no question, p. 616.</p> <p>5. Appeal. — Questions Reviewable. — Overruling Motion for New Trial —No question is presented on the overruling of a motion for new trial, where neither the motion nor the substance is set out in appellant’s brief, p. 616.</p>

<p>Prom Brown Circuit Court; William E. Deupree, Judge.</p> <p>Action by Jacob Griner against Rebecca J. Taylor and another. Prom a judgment for plaintiff, the defendant named appeals.</p>

<p>Prom Wabash Circuit Court; A. R. Plummer, Judge.</p> <p>Action by Alvin H. Baker and another against the American Seeding Machine Company and another. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Schools and School Districts. — Abandonment.—Grounds for Abandonment. — Recovery for Transportation of Pupils. — Although the unfavorable condition of roads, streams and bridges would probably be ground for enjoining the abandonment of a school under §6422 Burns 1908, Acts 1907 p. 444, where a school has been abandoned and the pupils have been transported to another school, proof that such conditions permitted abandonment is not essential to a recovery for the furnishing of such transportation, p. 631.</p> <p>2. Schools and School Districts. — Abandonment.—Transfer of Pupils. — On the abandonment of a school under §6422 Burns 1908, Acts 1907 p. 444, there can be no transfer of the pupils in the sense contemplated by §6449 Burns 1908, Acts 1901 p. 448, and while the children from such abandoned school may become attached to another district by being enumerated therein, §6447 Burns 1908, Acts 1895 p. 127, relating to enumeration, does not make enumeration essential to attach children to a school district, but it is the apparent intention of that section that residence and not enumeration fixes the attachment, p. 632.</p> <p>3. Schools and School Districts. — Action for Oost of Transporting Pupils. — Complaint.—A complaint against a school township for the cost of transporting plaintiff’s children, alleging “that the conveyance used for said transportation was a top buggy, closed with side curtains, and drawn by a horse owned and kept by this plaintiff,” shows a sufficient compliance with §6423 Burns 1908, Acts 1907 p. 444, providing that “such transportation shall be in a comfortable and safe conveyance,” etc. p. 633.</p> <p>4. Schools and School Districts. — Action for Oost of Transporting Pupils. — Complaint.—Allegation as to Appropriation. — In an action to recover for transporting school children, allegations of the complaint showing that the township advisory board, at each of its annual meetings covering the period during which such transportation was had, appropriated the sum of $500 for such purpose, were sufficient without pleading the record of the advisory board, or alleging that such appropriation had not been expended, since it is never necessary to plead the evidence, and the entire expenditure of the appropriation, if a fact, is a matter of defense, p. 634.</p> <p>5. Schools and School Districts. — Transportation of Pupils:— Contract. — Necessity for rVritmg. — Section 9598 Burns 1908, Acts 1899 p. 150, requiring certain contracts by school trustees to be in writing, does not apply to contracts for the transportation of pupils from abandoned schools under §6422 Burns 1908, Acts 1907 p. 444. p. 635.</p> <p>6. Schools and School Districts. — Contracts.—Transportation of Pupils. — The rule that a township trustee can not contract to pay a reasonable compensation for services to be rendered to the township, has no application to an executed contract, so that although no definite price for the transportation of school children pursuant to §6422 Burns 1908, Acts 1907 p. 444, had been agreed upon, where the contract had been fully executed, a recovery of the reasonable value of such service could be had. p. 635.</p>

<p>Prom Clay Circuit Court; John M. Pawley, Judge.</p> <p>Action by Thomas P. Donham against Charles D. Pierson. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Covenants. — Breach of Warranty. — Notice.—Necessity.—However desirable it may be that written notice should be given of the breach of a covenant of warranty, there is no necessity therefor as a condition precedent to recovery on the warranty, where the warrantor knew of the defect in the title and that the title was being assailed, and refused to assist in protecting the grantee, p. 641.</p> <p>2. Covenants. — Warranty.—Breach.—Eviction.—While the grantee in possession under a warranty deed, until evicted, can recover only nominal damages from his grantor because of a defect in the title, a grantee, who, while in possession, on being subjected to trouble because of a defect in his title, brought an action to. have his title quieted in which judgment was recovered against him in a large amount, could recover actual damages from the grantor, since the judgment against him amounted to an eviction, pp. 641,643.</p> <p>3. Covenants. — Warranties.—Breach.—A recovery for breach of a covenant of warranty cannot be defeated on the ground that if grantee had remained silent the defect in the title would not have been discovered and the persons profiting by the defect would eventually have been barred by the statute of limitations, since a party cannot be required to hold property for the full period of limitation before he attempts to dispose of it or to perfect his title, p. 642.</p> <p>4. Tenancy in Common. — Adverse Possession. — Ouster.—A tenant in common can not acquire title by adverse possession against another tenant in common, unless there has been a constructive or actual ouster, as the possession of one is the possession of all. p. 643.</p>

<p>From Howard Circuit Court; Leroy B. Nash, Special Judge.</p> <p>Action by Caroline M. Miller against Henry C. Miller. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Thomas J. Wolf, Jr., against Marion L. Russell and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Appeal. — Sufficiency of Complaint. — Waiver of Defects. — Briefs. —Reasons for the alleged insufficiency of a complaint are waived on appeal by appellant’s failure to present in its brief any point, proposition or authority in support of same, p.665.</p> <p>2. Conversion. — Acts Constituting. — Where one receives the money of another, with directions to apply it to the payment of a debt owing by the latter to a third person, and in disregard of such directions applies the same to his own or some other use, such use is wrongful and amounts to a conversion of the money so applied, p. 665.</p> <p>3. Conversion. — Complaint.—Demand.—A complaint for the conversion of money or property is sufficient without alleging a demand before suit, where the facts alleged show an actual conversion. p. 665.</p> <p>4. Conversion. — Complaint.—Sufficiency.—The essence of conversion is the wrongful invasion of one’s property right by another, and while there can be no such invasion where the latter’s possession was rightfully obtained, except upon demand for possession by the former and refusal by the latter, a complaint which averred that plaintiff sold a note and mortgage to defendant with specific directions that the proceeds should be applied to the payment of a certain debt owing by plaintiff, and that defendant subsequently disregarded such directions and applied the money to the payment of the debt of another without plaintiff’s knowledge or consent, charged an actual conversion and was sufficient without alleging demand although possession in the first instance was rightfully acquired by defendant, p. 666.</p> <p>5. Bills and Notes. — Value.—Interest.—Pleading.—-A promissory note is prima facie worth the specified amount, so that in view of the fact that its interest value is a mere matter of mathematical calculation, an allegation of the amount of a note is sufficient to show its value as a matter of pleading, p. 667.</p> <p>6. Appeal. — Questions Waived. — Causes for New Wrial. — Briefs.— Causes assigned in a motion for new trial are waived on appeal by appellant’s failure to present them in the briefs, p.667.</p> <p>7. Conversion. — Evidence.—Sufficiency.—In- an action against a bank for the conversion of the proceeds of a note and mortgage purchased from plaintiff, evidence showing that plaintiff sold same to defendant with directions to apply the proceeds to a certain purpose, though conflicting, together with undisputed evidence that the amount had been credited on a debt owing to defendant from plaintiff’s husband, and that plaintiff bad thereafter unsuccessfully demanded the amount of the note and interest, was sufficient to warrant a verdict for plaintiff, p. 667.</p> <p>8. Appeal. — Review.—Merits Fairly Tried. — Affirmance.—Where it appears that the issues in a cause were fully and fairly tried out on the merits of the controversy, and that substantial justice has been attained, intervening errors will be deemed harmless and the judgment will be affirmed, p. 668.</p>

<p>I. Appeal. — Assignment of Errors. — Briefs.—The assignment of errors is the complaint on appeal, and such errors as are relied on for reversal must be set out in appellant’s brief in order to present any question thereon, hence where there is a failure to comply with the rules of court in this respect, an affirmance of the judgment is required, p. 670.</p>

<p>From Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by Marshall A. Fry against Mary E. Seely and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Superior Court of Marion County (86,471); Joseph Collier, Judge.</p> <p>Action by Frederick B. Adams against the Union National Savings and Loan Association. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Cogwheels.—Duty to Guard. — Where cogwheels are so located and protected by other parts of the machine that injury to a workman while in the discharge of his ordinary duties is not, in view of the danger of accident and mischance usually incident to the employment, reasonably to be anticipated, they are properly guarded within the meaning of the statute (§8029 Burns 1908, Acts 1899 p. 231, §9). p. 687.</p> <p>2. Master and Servant. — Injuries to Servant. — Cogwheels.— Guards. — Masterial Duty. — Where a cog gearing is located in close proximity to a portion of the machine which requires oiling, it is the master’s duty to provide such guards as will afford protection to the servant, not only while he is engaged in operating the machine, but while he is engaged in oiling it as a part of his employment; hence where it was shown that the cogwheels on which plaintiff was injured while oiling the machine were at the back and lower part of the machine and near the oil tube, the court cannot say that the defendant had discharged its duty with respect to guarding such cogs, although they were to some extent guarded by other parts of the machine, p. 688.</p> <p>3. Master and Servant. — Injuries to Servant. — Verdict.—Answers to Interrogatories. — In a servant’s action for injuries by coming in contact with cogwheels alleged not to have been guarded, answers by the jury to interrogatories from which the court cannot say that the defendant had discharged its duty with respect to guarding such wheels are not in conflict with a general verdict for plaintiff, p. 688.</p> <p>4. Master and Servant. — Injuries to Servant. — Choice of Ways. —Assumed Risk. — Contributory Negligence. — The rule that where two ways of performing a work are open to a servant, one of which is dangerous and the other safe, or one of which is attended with greater danger than the other, a servant, who, knowing the facts and realizing the danger, voluntarily chooses the more dangerous course, will be denied a recovery for any resulting injury, is applicable in all its strictness, in cases in which the doctrine of assumed risk is recognized; but can be sustained only upon the theory of contributory negligence, in cases where the doctrine of assumed risk does not obtain, p. 689.</p> <p>5. Negligence. — Contributory Negligence. — Contributory negligence consists of such conduct on the part of plaintiff, characterized by the want of such care as a person of ordinarly prudence would exercise under like circumstances, which directly contributes to produce the injury of which he complains, p. 689.</p> <p>6. Master and Servant. — Injuries to Servant. — Choice of Ways.— Contributory Negligence. — The court may say as a matter of law that a servant was guilty of contributory negligence in the choice of a way in which to perform his work, where the only reasonable conclusion that can be derived from the facts is that the danger incident to the mode adopted was open and obvious and of a character so imminent and threatening that no man of ordinary prudence would have taken the chances of encountering it; otherwise the question of contributory negligence in such case is for the jury. p. 690.</p> <p>7. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Where plaintiff, who was injured by cogwheels while he was attempting to oil the machine, started to stop the machine for the purpose of oiling it and was directed by his foreman to oil the machine running, the verdict for plaintiff cannot be disturbed on the theory that plaintiff was guilty of contributory negligence in oiling it while in operation, p. 690.</p> <p>8. Trial. — Verdict.—Answers to Interrogatories. — Answers to interrogatories will not overthrow the general verdict if they can be reconciled therewith by any evidence admissible within the issues, p. 691.</p> <p>9. Master and Servant. — Injuries to Servant. — Unguarded Cogwheels.— Assumed Rislc.— Contributory negligence.— Where the negligence charged against defendant consists in a failure to discharge a statutory duty the doctrine of assumed risk does not apply, so that where defendant failed to properly guard certain cogwheels in compliance with §8029 Burns 1908, Acts 1899 p. 231, §9, plaintiff could recover for injuries to his hand in being caught in such cogs notwithstanding he was at the time performing his work in the more hazardous of two ways open to him, unless he was guilty of a want of ordinary care in encountering the known danger, and the verdict in his favor could not be disturbed on the theory of contributory negligence where the evidence upon that point was such that opposite inferences could reasonably be drawn therefrom, p. 691.</p> <p>10. Master and Servant. — Injuries to Servant. — Unguarded Cogwheels.— Instructions.— An instruction that it was defendant’s duty to guard the cogwheels of a machine by which plaintiff was injured, if it was practical and possible to do So, was not open to the objection that it required guards even though the wheels were protected by the machinery itself, where such referred to other instructions in which the jury was told that if other parts of the machine afforded a reasonable safeguard they were sufficiently guarded, p.692.</p> <p>11. Appeal. — Revieio.—Harmless Error. — Instructions.—Defendant, in an action for injuries to a servant by reason of unguarded cogs, was not harmed by an instruction which failed to state that as a prerequisite to a verdict for plaintiff the unguarded condition of the cogs must have been the proximate cause of the injury, even if such omission was error where the evidence was such that the jury could have reached no other result under a proper instruction, p. 693.</p> <p>12. Appeal. — Review.—Instructions.—Damages.—In the absence of any evidence in the record which might have improperly influenced the jury in estimating the damages, an instruction directing it to consider all the facts and circumstances in the case in estimating the damages, though objectionable in not limiting the consideratioii to the facts and circumstances bearing on the question of damages, could not have affected the amount of the verdict and was harmless, p. 693.</p> <p>13. Appeal. — Review.—Refusal of Instructions. — There was no error in the refusal of instructions fully covered by instructions given, p. 694.</p>

<p>Prom Superior Court of Marion County (81,293); Pliny W. Bartholomew, Judge.</p> <p>Action by Ella B. Smith against John P. Collins and another. Prom the judgment rendered, the plaintiff appeals.</p>

<p>Prom Martin Circuit Court; James W. Ogden, Judge.</p> <p>Action by Harvey Chastain against Mitcheltree School Township of Martin County. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Martin Circuit Court; James ~W. Ogden, Judge.</p> <p>Action by Roscoe Hitchcock against Mitcheltree School Township of Martin County. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Martin Circuit Court; James W. Ogden, Judge.</p> <p>Action by Ethel Parker against Mitcheltree School Township of Martin County. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Martin Circuit Court; James W. Ogden, Judge.</p> <p>Action by Albert Akles against Mitcheltree School Township of Martin County. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Martin Circuit Court; James W. Ogden, Judge.</p> <p>Action by Herbert Marley against Mitcheltree School Township of Martin County. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Martin Circuit Court; James W. Ogden, Judge.</p> <p>Action by Lewis Herrington against Mitcheltree School Township of Martin County. Prom a judgment for plaintiff, the defendant appeals.</p>

From Superior Court of Marion County (80,627) ; Clarence E. Weir, Judge. Action by The Marion Trust Company, Administrator with the will annexed of the estate of Oliver H. Carson, against The Bankers Life Association. From a judgment for defendant, the plaintiff appeals.

<p>From the Superior Court of Marion County (79,797); Clarence E. Weir, Judge.</p> <p>Action by Anna Brown against The Bankers Life Association. From a judgment for defendant, the plaintiff appeals.</p>