Volume 67 — Indiana Appellate Court Reports

From Grant Circuit Court; H. J. Paulus, Judge. Action by the State of Indiana, on the relation of Florence Gordon and another, against Paul Price. From the judgment rendered, the defendant, by his next friend, appeals.

<p>1. Municipal Corporations. — Defective Sidewallc.- — Injuries< to Pedestrian. — Contributory ' Negligence. — Qrdinarily a traveler is not required to forego -the use of a street because of a known defect therein, but, if he thereafter attempts to travel the street, he is required to use that degree of care and caution which is commensurate with the knowledge; nor is a traveler necessarily guilty of negligence in attempting to pass over a public street or sidewalk which he knows to be dangerous, even though on account of darkness he cannot see so as to avoid the danger, p. 14.</p> <p>2. Municipal Corporations. — Defective Sidewallc. — Injuries to Pedestrian. — Action.—Contributory Negligence. — Burden of Proof. —In an action for injuries resulting from a fall on an icy sidewalk, the burden of proof on the issue of contributory negligence is upon the defendant, which burden is discharged where it appears from the whole evidence that plaintiff is guilty of negligence contributing to his injury, p. 14.</p> <p>3. Municipal Corporations. — Defective Bidewalh. — Injuries to Pedestrian.. — Action.-—Contributory Negligence. — In an action for personal injuries resulting from a fall on an icy sidewalk, where plaintiff, knowing the dangerous condition of the sidewalk, attempted to pass over it, and the danger was such that, under the circumstances, an ordinarily prudent person would not have attempted to use the walk, plaintiff was presumptively guilty of contributory negligence, but such presumption was rebuttable by evidence that he used care commensurate with the danger, p. 14.</p> <p>4. Municipal Corporations. — Defective Bidewalh. — Injury to Pedestrian. — Contributory Negligence. — Evidence.—In an action for personal injuries sustained in a fall on an icy sidewalk, where the evidence on the issue of contributory negligence showed that water from a leaky hydrant flowed across a city sidewalk, causing ice to form in freezing weather, so that it was dangerous to use the walk, that there was a grass plot on either side of the walk which was safe for travel, and that plaintiff, knowing such facts, attempted to pass over the sidewalk on a night so dark that he could not see the ice without exercising any care other than looking ahead, and in so doing fell and was injured, such evidence is sufficient to sustain a judgment for defendant, p. 15.</p> <p>5. Appeal. — Revieio.—Harmless Error. — Instruction.—In an action for injuries sustained in a fall on an icy sidewalk, where the evidence and the jury’s answers to interrogatories affirmatively showed plaintiff’s contributory negligence, error, if any, in instructions relating to defendant’s duty and its negligence with reference to the removal of obstructions from the sidewalk, and its power to enter upon private property to make repairs, was harm- ■ less, and not ground for reversal, p. 15.</p> <p>6. Municipal Corporations. — Defective Bideioalk. — Injuries to Pedestrian. — Action.—Instructions.—In an action for injuries sustained in a fall 'on an icy sidewalk, an instruction that, if plaintiff had knowledge of the presence 'of ice on the sidewalk, he must be held to have known that there was danger of falling if he attempted to pass over it in the dark, and if he did attempt to so pass over it, and fell and was injured he could not recover, was not erroneous in view of evidence that plaintiff had lived near the scene of the accident more than four years and customarily used the walk in going to and from his work, that he knew there was ice on the walk, rendering it dangerous, and that, though unable to see on account of darkness, he used ho care whatever for his safety, p. 16.</p> <p>7. Municipal Corporations. — Defective Bidewalh. — Injuries to Pedestrian. — Action.—Instructions.—Contribu-tory Negligence-Intoxication. — In an action for personal injuries sustained in a fall on an icy sidewalk, where there was some evidence that plaintiff was at least partially intoxicated at the time he was injured, instructions informing the jury that intoxication might be taken into consideration as a circumstance- in determining whether the person injured was negligent, and whether his negligence contributed to his injury, were not improper, p. 17.</p>

<p>1. Fbauds, Statute of. — Construction.—In determining whether a transaction is within the statute of frauds the courts will hold strictly to establish rules, p. 22.</p> <p>2. Fbauds, Statute of. — Sale of Goods. — Identity of Property.— Parol Evidence.- — Letters.—A letter, “Ship us the $66.00 size, as per instructions to your” president, the order referring to comforters, was not sufficient to take the transaction out of statute of frauds, where the issue was as to the quality of goods, a matter which could not, in the absence of pertinent writings or a trade catalogue, be determined without resorting to oral evidence. p. 22.</p>

<p>From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Action by the W. T. Rawleigh Medical Company against Robert Van Winkle and others. From a judgment for defendants, the plaintiff appeals.</p>

From Daviess Circuit Court; James W. Ogdon, Judge. Action by Frank W. Leslie on a claim against Lawrence A. Ebner, administrator of the estate of Joseph ■L. Ebner, deceased. From a judgment for defendant, the plaintiff appeals.

Prom the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Eugene Griswold against the Kokomo Steel and Wire Company. From an award for applicant, the defendant appeals.

From Marion Superior Court (88,900); Charles Orbison, Judge. Action by the First State Bank of Bourbon, Indiana, against William H. Hubbard and James H. Matchett. From a judgment for plaintiff against both defendants, and for defendant Matchett on his cross-complaint against defendant Hubbard, Hubbard appeals.

<p>From Wells Circuit Court; William E. Eichhorn, Judge.</p> <p>Action by Ella Dawley Smitbson against Bertha Bouse and others.</p> <p>From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Waiver of Error. — Error assigned on the overruling of motion for physical examination of plaintiff is waived, where appellant’s brief directs no point or proposition thereto, p. 79.</p> <p>2. Appeal.. — Briefs.—Abstract Proposition of Law. — W^aAver [tif Error. — Error assigned on the overruling of the motion for a new trial is waived, where appellant’s brief directs no point or proposition to any specific ground of the motion, but contains only mere general statements which may or may not apply thereto, p. 79.</p> <p>3. Master and Servant. — Injury to Servant. — Mining.—Complaint. — Sufficiency.—Statutes.—In an action by a coal miner for personal injuries sustained when the roof of a mine room caved in, allegations in a paragraph of complaint showing that the mine boss failed to furnish sufficient timbers to make the room safe and to inspect the same, as required by §8580 Burns 1914, Acts 1905 p. 65, and that such failure was the proximate cause of the injury, are not nullified by an allegation that there was no apparent danger and that the employe was unable to discover any defects in the roof by the use of the usual and ordinary tests. p. 82.</p>

<p>From Marion Superior Court (94,959); W. W. Thornton, Judge.</p> <p>Action by tbe William P. Jungelaus Company against Mary Josephine Eatti and others. From a judgment for defendants on their counterclaim, plaintiff appeals.</p>

<p>1. Appeal. — Review.—Findings of Fact. — Conclusiveness.—Bindings of fact supported by substantial evidence are conclusive on appeal, p. 101.</p> <p>2. Contracts. — Sales Contracts. — Attorney’s Fees.- — Right to Recover. — Where grain was sold under a written contract upon which was indorsed a receipt for advancements providing for attorney’s fees, but the parties- subsequently entered into a verbal agreement concerning the sale of grain which did not provide for attorney’s fees, and the receipt was satisfied by subsequent transactions, the holder could not recover attorney’s fees, though the maker still owed him money on the account, p. 103.</p> <p>3. Payment. — Rights as to Application. — Intent of Parties. — Application of Payment by Court. — Where a debtor owes distinct debts or accounts and he makes a voluntary payment, he may direct its application, but if neither party makes a specific appropriation of the payment, the law will apply it justly, and, in case of running accotints, in extinguishment of the first debt, unless a different intention on the part of the parties may be gathered from the facts and circumstances, and such rule is not confined to payments of money, but includes payments made in commodities, p. 103.</p> <p>- 4. Payment. — Application.-—Rights of Parties. — Where defendant entered into a written contract to deliver corn to plaintiffs, and executed his receipts for advancements, and, owing them no other debt at the time, commenced to deliver corn without attempting to collect pay therefor, it should be assumed that he intended that the value of such corn was to be applied to the receipts, and, when their amount in value of corn had been delivered, plaintiffs could not, in an action for money due on subsequent transactions in the account, recover attorney’s fees as provided in the receipts, p. 104.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Action by Sybilla S. Lee, executrix of the last will of Charles H. Lee, deceased, against the Indianapolis Traction and Terminal Company and others. From a judgment for plaintiff, the defendants appeal.

<p>From. Clinton Circuit Court; Braden Clark, Special Judge.</p> <p>Action by John E. Combs and others against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Pleading. — Negligence.—Allegations.—Sufficiency.-—Where the acts charged are of such a nature and character as to be necessarily negligent, they will be so regarded, although not in terms characterized as negligent, p. 130;</p> <p>2. Appeal. — Complaint.—Sufficiency.—Theory of Case Below. — On an appeal from a judgment for damages to land caused by the obstruction of flood waters of a river, where throughout the trial a paragraph of complaint was construed by the trial court as proceeding upon the theory that the injury resulted from the obstruction of a natural watercourse, a theory in accord with its general tenor, the sufficiency of the paragraph to resist demurrer must be tested on such theory, p. 130.</p> <p>3. Waters and Watercourses. — Surface Water. — Obstruction-Right of Railroads. — Each proprietor of lands may protect himself against the flow of surface water, regardless of the effect it may have upon the lands of others, and, as this rule is 'applicable to railroads, they have the right to interfere with the flow of surface water in constructing and maintaining embankments upon their right of way as a part of the roadbed, p. 130.</p> <p>4. Waters and Watercourses. — Surface Waters. — Right'to Repel. —As a general rule, on the boundaries of his own land, not interfering with any natural or prescriptive watercourse, the owner may erect such barriers as he may deem necessary to keep off surface water or overflowing floods coming from or across adjacent lands, and he will not be responsible for consequent injury to the lands of others, but such waters as fall in rain and snow on his land, or come thereon by surface drainage from contiguous lands, he' must keep within his boundaries, or permit them to flow off without artificial interference, unless within the limits of his land he can turn them into a natural watercourse. p. 130.</p> <p>5. Waters and Watercourses. — Streams.—Characteristics.-—A stream or watercourse must have a substantial existence, but it is not essential that it flow continuously throughout the year • to be classified as such, the requirement being that it must have a bed and banks and that there is evidence of a permanent stream of running water, p. 132.</p> <p>6. Waters and Watercourses. — Streams.—Surface Water. — -What Constitutes. — Where a river overflowed by reason of heavy rainfall, as it was accustomed to do from time immemorial, and spread out over a vast area of low land adjacent to its ordinary channel, but the whole body of water moved in a current with the main channel, apparently with the same velocity and forming one continuous body of moving water, the flood waters were not surface waters, so that a railroad could not avoid liability for damages resulting from the obstruction of such water by its embankments and insufficient bridges, p. 137.</p> <p>7. Waters and Watercourses. — Flood Waters. — Obstruction.— Negligence. — Liability.—Proximate Cause. — In an action against a railroad company for damages resulting from the obstruction of flood waters of a stream, where the answers to interrogatories disclosed that various railroad embankments were flooded by the waters of a river, and several of them washed out, causing a rapid rise of flood water on the upper side of defendants’ railroad embankment, together with an accumulation of drift against the trestle work that formed the frame for the passageway for the water, the giving way of the embankments was not the proximate cause of injury to lands damaged by water being banked up by defendants’ embankment and trestle, but intervening or concurring causes, so that defendant railroads were liable, since, to hold one liable for negligence, it is not necessary that the particular consequence of his .act could have been anticipated by the exercise of ordinary care, it being sufficient if the probable injurious consequence could have been anticipated by reasonable care, and not the intervening agencies contributing to the result, p. 140.</p> <p>8. Waters and Watercourses. — Streams.—Floods.—Act of Q-od.— Where the Wabash river overflowed its banks, as it was accustomed to do each year from time immemorial, and by reason of heavy rainfall and artificial drainage emptying into the stream it reached a stage of thirty-one feet above low-water mark six -miles away from the locality in litigation, whereas the highest stage previously recorded was twenty-eight feet, thirty-eight years before, the flood was not of such extraordinary character that injury to farm lands from water backed up by a railroad embankment must be regarded as caused by an “act of God.” p. 141.</p> <p>9. Appeal. — Review.—Answers to Interrogatories.- — Presumptions Favoring Verdict. — In determining the correctness of the trial court’s action in overruling a motion for judgment on the jury’s answers to interrogatories, notwithstanding the general verdict for plaintiff, the court on appeal will not look to the evidence actually given in the cause, but will search the pleadings to see, if from any evidence possible under the issues, the answers can be reconciled with the general verdict, and every reasonable presumption and inference dedueible from the evidence which might have been admitted in support of the general verdict will be indulged in its favor, p. 141.</p> <p>10. Trial.-Verdict. — Scope.—The general verdict for plaintiff is a finding in his favor upon all the issues involved, p. 142.</p> <p>11. Trial.- — Interrogatories.—Submission.—Refusal.—Where interrogatories material to the issues involved are requested to be given in proper form at the proper time, and are not covered by other interrogatories, it is reversible error on the part of the trial court to refuse to submit them to the jury. p. 143.</p> <p>12. Appeal. — Revieio.—Harmless Error. — Exclusion of Evidence.— Error, if any, in the exclusion of offered testimony was harmless, where the facts sought to be elicited from the witnesses were specifically found by the jury in answer to special interrogatories. p. 143.</p> <p>13. Trial. — Instructions.—Omissions.—Cure by Other Instructions. —Where the trial court, in stating the issues, did not refer to the subject-matter of the affirmative paragraphs of answer, but the principles of law applicable thereto were covered by other instructions, and no burden was placed upon defendants by the instructions to establish the allegations of the affirmative paragraphs of answer, defendants got the benefit of the principles of law applicable thereto, and the failure of the trial court to refer to the subject-matter of such answers was harmless, p. 145.</p> <p>14. Appeal. — Review.—Harmless Error. — Refusal of Instructions. Refusal of the trial court to give a tendered instruction to the effect that the law does not prescribe when the jury should answer the interrogatories submitted to them either before or after agreeing upon the general verdict, and that they could be answered according to the jury’s desire, was harmless, p. 146.</p> <p>15. Appeal. — Revieto.—Harmless Error. — Instructions Beyond Issues. — -In an action for damages to land caused by the obstruction of flood waters of a river, error in the instruction in reference to the subject of surface water being involved, which was beyond the issues, was harmless to defendants, where the jury was fully informed upon the question of flood waters of the main channel and the answers to interrogatories disclosed that the injury was, in fact, caused by such waters, p. 147.</p> <p>16. Waters and Watercourses. — Flood of Rimer. — Act of God. — ■ What Constitutes. — In an action for damages to land due to the obstruction of flood waters of a river, the defense that the injury resulted from an “act of God” is available only when it appears that there is an entire exclusion of human agency from the cause that produced the injury, and. an occurrence that is produced partially by the intervention of human agency is not an “act of God” within the meaning of the law. p. 147.</p> <p>17. Waters and Watercourses. — Streams.—Obstruction of Flood ,, Waters. — Damage to Lcmd. — Liability.—The injury to land due to the obstruction of flood waters of a stream by a railroad embankment was not one that was taken into account in measuring damage to the ,owner in a condemnation proceeding when the right of way was originally acquired, and such injury does not fall within the rule of law that there can be no recovery for injuries that are incident to the clue and proper exercise of the corporate franchise of a railroad, p. 150.</p> <p>18. Railroads. — Construction over Streams. — Duty of Railroad.— Under §5195, cl. 5, Burns 1914, §3903 R. S. 1881, railroad companies have a right to build thei'r roads upon or across a watercourse, but they must refrain from interfering with its free use, so that security to property is afforded, and in this behalf they must restore the stream to substantially its former state so as not to impair its usefulness more than is absolutely necessary, p. 151.</p>

From Allen Superior Court; Carl Tapie, Judge. Action by William Pape against tbe Mutual Life Insurance Company of New York, in which the company filed an interpleader making parties all living-children of insured, and the several parties joined issues by way of cross-complaints and other pleadings. From the judgment rendered, Charles G. Pape and others appeal.

From the Industrial Board. ■ Proceedings for compensation under the Workmen’s Compensation Act by Ida Brown and.another against the Haskell and Barker Car Company! From an award for applicant, the defendant appeals.

From the Industrial Board. Proceedings for compensation under the Workmen’s Compensation Act by Sarah J. Cruse against Frank C. Retmier and another. From an award for applicant, the defendants appeal.

From Hamilton Circuit Court; Ernest E. Cloe, Judge. Suit for partition of the real estate of Carey Hall, deceased, wherein, on the death of John A. Hall, his widow, Lollage C. Hall, was admitted as a party-defendant in his stead. From the judgment rendered on issues joined on her cross-complaint she appeals.

Froin St. Joseph Circuit Court; Walter A. Funk, Judge. Action by the American Trust Company, trustee in bankruptcy of the estate of Albert G. Harlin, against Wilbur A. Harlin, guardian of Emma W. Harlin, wife of the bankrupt. From a judgment for plaintiff, the defendant appeals.

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation by Rebecca Bryant against the Indianapolis Abattoir Company. From an award for applicant, the defendant appeals.

<p>From Fayette Circuit Court; P. W. Bartholomew, Special Judge.</p> <p>Action by George D. Hoffman against Dessie D. Hoffman. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Knox ■ Circuit Court; Benjamin M. Willoughby, Judge. '</p> <p>Action by Ira Stevens against Vandalia Railroad Company. ■ From a judgment for plaintiff, tbe defendant appeals.</p>

From Steuben Circuit Court; D. É. Best, Special Judge. Action between Dora L. Krabill and others and Samuel Keesler. From the judgment rendered, Dora L. Krabill and others appeal, and Samuel Keesler moves to dismiss the appeal.

From Fountain Circuit Court; Isaac E. Schoonover, Judge. Action by James Bingbam, receiver of tbe Columbia Casualty Company, against tbe Newtown Bank, in wbicb one Rudolph C. Keller intervened. From a judgment for the intervener, Keller appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the .Workmen’s Compensation Act by Bessie Mulray against the Polar Ice and Fuel Company and another. From an award for applicant, the defendant appeals.

<p>From Marion Superior Court (102,279); Theophilus J. Moll, Judge.</p> <p>Action by Sarah J. Bishop and others against the Home Stove Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Principal and Agent. — Gontinumice of Agency. — Presumption. ■ — Liability of Principal. — A general agency once established is presumed in law to continue, and one dealing with such person as the agent of his principal, in good faith, is not affected by the revocation of the agent’s authority, unless notice is given thereof, p. 280.</p> <p>2. Insurance. — Employer's Liability Insurance. — Notice .of 'Accident. — Compliance with Policy Provisions. — A provision of an employer’s liability policy requiring written notice to the insurer or its agent of any claim made on account of accident, is complied with by insured’s sending all notices and summons to the general agent who wrote the policy and who sent such notice to-the insurer, where insured had received no notice of the revocation of the agent’s authority, p. 280.</p> <p>3. Principal anií Agent. — Revocation of Agency. — Necessity of Notice. — Notice of the revocation of an agency need not be in any particular form and need not be communicated in any particular manner, but to be effective it must be clear and unequivocal. p. 281.</p>

<p>1. Eminent Domain. — Taking Railroad Right of Way. — Compensation. — Future Damages. — The purchase of a railroad company from the owner of an additional right of way to be used in building a second track did not settle or adjust future damages from increased drainage on the grantor’s land resulting from the construction of such track, where at the time of the purchase the grantor did not know and could not reasonably have anticipated that the contemplated improvements would cause the diversion of drainage complained of; the rule being that the price paid for a railroad right of way settles future damages applying only to damages which might reasonably be expected to result from the conveyance and the construction and maintenance of the road in a proper and lawful manner, p. 289.</p> <p>2. Eminent Domain. — Right of Way Dividing Farm into Separate Tracts. — Condemnation Proceedings. — Measure of Damages.— Where a farm located on both sides of a railroad right of way was owned and operated as one farm by the owner prior to and at the time of a condemnation proceeding by a railroad to appropriate additional land for drainage purposes under §929 et seq. Burns 1914, Acts 1905 p. 59, the measure of damages was the difference in the value of the entire tract before and after the , change in drainage; and such rule for the determination of damages was not affected by the fact that the owner purchased part of the land from the railroad with knowledge that it was double tracking its road, which improvement necessitated the appropriation of land involved for drainage purposes, p. 290.</p> <p>3. Eminent Domain. — Right of "Way Dividing Farms into Separate Tracts. — Jury Question. — In a condemnation proceeding by a railroad to appropriate additional land on which to build a second track, whether a farm, which was on both sides of the right of way and consisted of contiguous tracts, was held and operated as separate units or as a single farm was a question of fact for the jury. p. 290.</p> <p>4. Eminent Domain. — Damages.—Where defendant’s 178-acre farm, which was divided into separate tracts by a railroad right of way, was operated by him as one farm, and the increased flow of drainage water onto one tract, because of changes in the railroad grade, depreciated the value of the land from about $90 to about $85 an acre, damages of $600, awarded in proceedings by the railroad to condemn land for drainage purposes were not excessive. p. 294.</p>

<p>1. Pleading. — General Denial. — Evidence Admissible. — Pacts pleaded in paragraphs of answer which are not by way of confession and avoidance, but directly controvert or rebut matters pleaded by the complaint, are admissible in evidence under the general denial, p. 299.</p> <p>2. Records. — Records of Municipal Corporation. — Right to Examine. — Taxpayers of a municipality have a light to examine its book's and records at proper times for any legitimate purpose, p. 300.</p> <p>3. Municipal Corporations. — Right of Taxpayers. — Public Funds. —Enjoining Misappropriation.- — Taxpayers of a municipality may enjoin municipalities and their officers from misappropriating public funds under their control, as such funds belong beneficially to the taxpayers, p. 301.</p> <p>4. Municipal Corporations. — Right of Taxpayers. — Misappropriation of Public Funds. — Investigation and Recovery. — Where public funds have been misappropriated, and the municipality and its proper officers on demand refuse to proceed to cause such funds to be restored, taxpayers, in the interest of themselves and all others similarly situated, may take steps to recover such funds in behalf of the municipality and to that end may conduct</p> <p>■ investigations and commence and prosecute appropriate actions, p. 301.</p> <p>5. Municipal Corporations. — Misappropriation of Public Funds — Taxpayer’s Action to Recover. — Pleading.—In an action prosecuted by taxpayers of a municipality to recover misappropriated public funds, the complaint must affirmatively disclose their interest as that they are taxpayers, p. 301.</p> <p>6. Municipal Corporations. — Misappropriation of Public Funds.— Taxpayer’s Action to Recover. — Costs and Expenses. — -Where, by steps which they are authorized to take, taxpayers cause to be restored to the municipality funds wrongfully sequestered or misappropriated, they may retain out of the fund or recover from the municipality their reasonable costs and expenses incurred, including the reasonable expense of procuring the services of expert accountants, p. 302.</p> <p>7. Subrogation. — Right to Subrogation. — Actions.—Complaint.—■ Sufficiency. — In an action against a city by expert accountants to recover for certain services, where the complaint alleged that certain citizens and taxpayers of a city apprised the city officials of facts sufficiently definite to require that the city’s financial affairs be investigated, and that they requested such officials to cause an investigation to be made, which request was denied, whereupon such citizens and taxpayers engaged plaintiffs, who, on auditing the city’s books, discovered a shortage, which was subsequently made good, but not averring that such citizens or taxpayers were insolvent, nor disclosing any other reason why they could not be required to perform their obligations to pay plaintiffs for their services, so that it was necessary for plaintiffs to resort to subrogation or any equitable principle to recover what was due them, such complaint is insufficient to state a cause of action against the city on the theory of subrogation of the claim the taxpayers held against the municipality, since the facts alleged show only that such citizens and taxpayers were indebted to plaintiffs, and that, having discharged their indebtedness, they might recover from the city the reasonable value of plaintiff’s • services, pp. 303, 306, 312.</p> <p>8. Subrogation. — Theory.—Applicability.—Subrogation is defined as the equity by which a person who is secondarily liable for a debt, and who has paid it, is put in the place of the creditor, and it is applied where a man pays a debt which could not properly be called his own, but which it was his interest to pay. p. 305.</p> <p>9. Subrogation.- — Defenses.—Adequate Remedy at Law. — The remedy of subrogation being equitable in nature, the established maxims of equity are applicable, and ordinarily one may not resort to subrogation where he has a clear and adequate remedy at law. p. 306.</p> <p>10. Subrogation. — Actions.-—Parties.—Ordinarily the remedy by subrogation cannot be applied unless those whose rights will thereby be affected are parties to the proceeding, p. 306.</p> <p>11. Subrogation. — Actions.—Parties.—In an action by expert accountants against a city for subrogation of the rights of a committee of citizens and taxpayers who had employed them to examine the city’s books, the citizens’ committee were necessary parties in view of the fact that the amount of compensation to be paid plaintiffs was in dispute, p. 314.</p>

<p>From Porter Circuit Court; H. II. Loring, Judge.</p> <p>Action by William Brown against tbe Illinois Car and Manufacturing Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Porter Circuit Court; H. H. Loring, Judge.</p> <p>Action by Leona F. Stalker, administratrix of the estate of George Stalker, deceased, against the Pennsylvania Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Dismissal.—Landlord and Tenant. — Where a judgment permanently enjoined the defendants from interfering with the plaintiff’s possession of real estate so long as the latter complied with his lease, and decreed that the injunction should terminate in the event of the mutual agreement of the parties, an appeal therefrom will be dismissed where, prior to the perfection of the appeal, the tenancy was terminated by mutual consent, possession of the premises having been surrendered by the ■ plaintiff and accepted by the defendants, p. 354.</p> <p>2. Appeal. — Decisions Reviewahle. — Moot Question. — Where the plaintiff remitted the amount recovered in an injunction suit, leaving only the judgment for costs, and the record shows that the injunction had been terminated by mutual consent of the parties before the appeal was perfected, the court on appeal will not review the questions presented to determine the matter of costs, p. 354.</p> <p>3. Appeal. — Estoppel to Allege Error. — Accepting Benefits. — The acceptance of rent by a landlord for the occupancy of real estate for periods both before and after the rendition of a. judgment permanently enjoining interference with the tenancy amounted to an acknowledgment of the tenancy and of the legality of the judgment, and estops such landlord from asserting on appeal that the judgment is erroneous, p. 355.</p>

<p>From Wells Circuit Court; Wilson D. Lett, Special Judge.</p> <p>Action by Susannah Koontz and others against Kate Faylor and others. From a judgment dismissing a cross-complaint, Kate Faylor and others appeal.</p>

<p>From Wabash Circuit Court; Nelson G. Hunter, Special Judge.</p> <p>Suit by Jacob Kumley and others against John W. Eads. From a judgment for the plaintiffs, the defendant appeals.</p>

<p>1. Landlord and Tenant. — Action for Possession. — Complaint.— Sufficiency. — Jurisdiction.—In a landlord’s action for possession, a complaint describing the real estate as being in Indianapolis, Indiana, sufficiently showed that it was located in Marion county, so that a justice of the peace of such county had jurisdiction under §8071 Burns 1914, §5225 R. S. 1881, providing that in such actions only a justice of the peace of the county in which the lands are situated shall have jurisdiction, pp. 373, 374.</p> <p>2. Justices oe the Peace. — Appeals.—When Jurisdiction Is Conferred. — If a court of a justice of the peace does not have jurisdiction of the subject-matter of a cause commenced therein, a circuit court does not acquire jurisdiction on appeal, p. 373.</p> <p>3. Appeal. — Review.—Harmless Error. — Absence of Allegations from Complaint. — Where defendant in an action to recover possession of real estate alleged in his answer that the property involved was situated in Marion county, Indiana, he was not deceived or misled by the absence from the complaint of an allegation specifically locating the property in such county, p. 374.</p> <p>4. Appeal. — Review.-.—Complaint.—Sufficiency.—Absence of ' Evidence from Record. — Presumption.—The evidence not being in the record, it should be asumed on appeal that certain informalities and uncertainties in the land description contained in a complaint to recover possession were removed by the evidence, p. 374.</p> <p>5. Pleading. — Matters of Judicial Knowledge.- — Statute.—-Under §383 Burns 1914, §374 R. S. 1881, providing that matters of which courts take judicial notice need not be pleaded, where a complaint to recover possession of real estate showed that the property involved was located in Indianapolis, it was unnecessary to allege that it was in Marion county, Indiana, since the courts will take judicial notice that the city of Indianapolis is located in that county, p. 374.</p>

From Laporte Circuit Court; James F. Gallaher, Judge. Proceedings by Johanna Diedrich and another to revoke letters of administration issued to Othie Way, administrator with will annexed of Henry Diedrich, deceased. From a judgment for the administrator, the petitioners appeal.

<p>Prom Marion Superior Court (100,147); Vincent G. Clifford, Judge.</p> <p>Action by Lorenz Leppert and others against the Vandalia Railroad Company and others. Prom the judgment rendered, the plaintiff appeals.</p>

<p>1. Trial. — Exceptions to Conclusions of Law. — Effect.—By excepting to the conclusions of law appellant concedes that the facts within the issues are fully and correctly found, p. 385.</p> <p>2. Trial. — Special Findings. — Failure to Find Essential Fact.— Effect. — The failure of the court to find a material issuable fact is a finding against the party having the burden of proving the same. p. 386.</p> <p>3. Trial. — Conclusions of Law. — Sufficiency of Facts Found to Support. — -In an action to set aside a deed on the ground of fraud and undue influence, where the facts found showed neither fraud nor undue influence in procuring the conveyance, the conclusion of law that the deed should not be set aside was supported by the facts and was not erroneous because plaintiff impoverished herself by the conveyance, there being no finding of fact in reference thereto, p, 386.</p> <p>4. Deeds. —• Validity. — Cbnveyance without Consideration. — The fact that a conveyance was made without any valuable consideration is not alone sufficient ground to set aside a deed where the question arises between the grantor and grantee, p. 386.</p> <p>5. Trial. — Finding of Fact. — Evidence.—Sufficiency.—Where there is evidence tending to prove every material fact found by the trial court, the evidence is sufficient to sustain the findings of fact. p. 387.</p> <p>6. Trial. — Special Findings. — Fact to Be Stated. — Ultimate Facts. —Inferences from Evidentiary Fact. — A special finding should contain only the ultimate facts in issue, and not mere evidentiary facts, though the trial court may properly state, in its finding, any ultimate or inferential fact established by the evidence, p. 387.</p> <p>7. Trial. — Special Findings. — Ultimate Facts. — Inferring from Evideuce. — Ultimate facts are inferred from evidentiary facts and circumstances, and are fully warranted where they may be reasonably inferred therefrom, p. 387.</p> <p>8. Cancellation of Instruments. — Deed.—Issues.—Proof.—Pleading Distinct Grounds of Relief. — In an action to set aside a deed for fraud and undue influence, allegations in the complaint that the conveyance was without consideration and improvident, whether viewed as related to the charge of fraud or undue influence, or as stating a separate ground of recovery, presented issuable facts which plaintiff had a right to prove by competent evidence, since under the Code a plaintiff may in a single paragraph aver all the facts relating to the transaction in controversy and may recover on proof of such part of the facts averred as constitute a ground of recovery, though the complaint may also charge other facts, f not proved, which if proved'Would likewise authorize a recovery, p. 387.</p> <p>9. Deeds. — Validity.—Improvident Conveyance. — Equitable Belief. ■ —Where a weak, aged, or infirm person improvidently conveys her property without receiving any valuable consideration therefor, or for grossly inadequate consideration, thereby depriving herself of means of support, equity will require the reconveyance or restoration of the property, upon demand of the grantor, where the parties may be placed in statu quo, and such grantor has done or offers to do that which is necessary to restore the statu quo ante. p. 389.</p> <p>10. Deeds. — Validity.—Constructive Fraud. — Improvident Conveyance. — Equitable Belief. — The improvident conveyance of property by a weak, aged, or infirm person without receiving a valuable consideration therefor, or for a grossly inadequate consideration, amounts to constructive fraud, and where the question arises between the improvident grantor and the grantee equity will intervene to compel the restoration of such property, p. 390.</p> <p>11. Cancellation of Instruments. — Deed—Improvident Conveyance of Property. — Evidence—In an action to cancel a deed for fraud and undue influence, where the complaint contains allegations sufficient to present the issue that the conveyance was without consideration and improvident, plaintiff was entitled to prove the cost of the reasonable care, attention and maintenance required by her, and the amount of her annual income, p. 392.</p> <p>32. Appeal. — Review.—Exclusion of Evidence. — Presumption of Error. — Error in excluding material evidence is presumed to be harmful, p. 392.</p>

<p>From Allen Circuit Court; John W. Eggemcm, Judge.</p> <p>Proceedings on the petition of Bertha Gearhart, administratrix of the estate of Edward L. Gearhart, deceased, for an order to sell real estate. On issues formed on an answer by the Peoples Trust and Savings Company, as guardian of Mary E. Gearhart, there was a judgment against the petitioner and she appeals.</p>

<p>Appeal. — Dismissal on Settlement'. — On appellee’s verified motion to dismiss on the ground that the parties have amicably adjusted all matters involved, the appeal will be dismissed, where appellants, with due notice of the filing of the motion, fail to make a counter showing.</p>

<p>1. Appeal. — Term-Time Appeal. — Where plaintiff prayed an appeal, but the amount of bond was not fixed, no sureties named, and no time given in which to file an appeal bond, it cannot be said that plaintiff attempted to take a term-time appeal, as such steps were necessary preliminaries to perfecting such an appeal, p. 405.</p> <p>2. Appeal. — Vacation.—Term-Time.—Failure to Perfect. — Effect.— An appeal prayed and granted in term, if not perfected as such, will be treated and sustained as a~ vacation appeal, where the statutory requirements for such an appeal have been followed, p. 405.</p> <p>3. Appeal. — Perfecting.—Certification of Record. — Where, subsequently to the filing of appellee’s motion to dismiss the appeal for improper certification of the record, appellant was granted permission to have the clerk amend the original certificate to the transcript, and a new certificate of the clerk of the trial court in due form was appended thereto bearing a date two days later than the granting of the permission, the new certificate substantially complied with the permission, and cured any defects in the original certification, p. 406.</p> <p>4. Appeal. — Bill of Exceptions. — Incorporation in Record. — Judge's Signature. — Filing.—To incorporate a bill of exceptions in the record, it must be filed in the clerk’s office after it has been signed by the trial judge, p. 406.</p> <p>5. Appeal. — Record.—Bill of Exceptions Containing the Evidence. ■ —Recital as to Evidence. — Where the judge’s certificate to a bill of exceptions containing the evidence recited that the transcript of the evidence embodied in the bill was certified to be a full, true and complete report of the evidence given on the trial, the bill sufficiently showed that it contained all the evidence given at the trial, since such fact may be shown either by a statement in the bill itself, or in the judge’s certificate thereto, p. 407.</p> <p>6. Appeal.. — Record.—Assignment of Errors. — Separate Assignments. — Where the assignment of errors, after giving the court and title of the cause, recited that “the appellant says there is manifest error prejudicial to appellant in the judgment and proceedings in this cause in this,” following which were five separate and distinct assignments of error, separately stated and numbered, no one of which called in question more than one ruling of the trial court, the assignments were several and not joint, p. 407.</p> <p>7. Appeal. — Waiver of Error. — Failwre to Reserve Exception.— Error, if any, in the action of the trial court striking out certain interrogatories to the jury is waived, where appellant fails to show that she reserved any exception to the court’s ruling and the question is not otherwise presented in her brief, p. 408.</p> <p>8. Appeal. — Review.—Harmless Error. — Sustaining Motion for Peremptory Instruction. — The action of the trial court in sustaining defendant’s motion for a peremntor.v instruction does not constitute reversible error, since the mere sustaining of the motion was not harmful to plaintiff, but the substantial and available error, if any, being in instructing the jury to find for defendant. p. 408.</p> <p>9. Trial. — Peremptory Instruction. — Consideration of Evidence. — , A trial court is authorized to direct a verdict in favor of a defendant only where there is an entire lack of evidence on some essential phase of the ease necessary to a recovery, and, when a motion is made for such a verdict, it is for the court to say whether there is any evidence to support each material issue or fact, and if there is such evidence, its weight or probative value is for the jury, and, in event the evidence is conflicting, so much thereof as is favorable to the party making the motion is deemed withdrawn, for the purpose of deciding the question presented by the motion, and the court will consider only the evidence, if any, favorable to the opposite party, p. 409.</p> <p>10. Death. — Wrongful Death. — Actions.—Existence of Benéficiary. —Allegation and Proof. — Statute.—Damages recovered under §285 Burns 1914, Acts 1899 p. 405, giving a right of action for wrongful death, inures to the exclusive benefit of the widow or widower, and children, if any, or next of kin, and if no such persons exist, the action cannot be maintained, so that the existence of some such beneficiary must be alleged and proved, p. 410.</p> <p>11. Death. — Wrongful Death. — Actions.—Existence of Beneficiary. —Allegation and Proof. — Statute.—In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, it is unnecessary to name in the complaint the persons entitled to the damages, it being sufficient to allege and prove the existence of such persons. p. 411.</p> <p>12. Death. — Wrongful Death. — Actions.—Failure to Name Beneficiaries in the Complaint. — Distribution of Damages.- — In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, the failure to name in the complaint certain persons who are entitled to share in the damages does not prevent them from participating in the distribution, p. 411.</p> <p>13. Death. — Wrongful Death. — Actions.—Complaint.—Naming Improper Beneficiaries. — Statute.—In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, the fact 'that certain persons are named in the complaint as next of kin who are not such within the meaning of the statute does not deprive an administrator of his right to maintain the action for the benefit of those who are proper beneficiaries, p. 411.</p> <p>14. Death. — Wrongful Death. — Actions.—Parties. — Statute. — In an action for wrongful death under §285 Burns 1914, Acts 1899 p, 405, though the damages inure to the exclusive benefit of the widow, children and next of kin, they have no right to be parties, and cannot compromise or control the action, p. 411.</p> <p>15. Death. — Wrongful Death. — Actions.—Complaint.—Allegations as to Beneficiaries. — Statute.—In an action under §285 Burns 1914, Acts 1S99 p. 405, brought for the benefit of dependent next of kin, it is only necessary to allege such facts on that subject as will show that some one or more of such beneficiaries exist, p. 411.</p> <p>16. Death. — Wrongful Death. — Actions.—Identity of Beneficiaries. —Pleading.—In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, the identity of the beneficiaries only becomes important in determining the amount of damages, but such proof can be made' under allegations of their existence made in general terms, p. 412.</p> <p>17. Death.- — Wrongful Death. — Actions.—Defenses.—Statute.—In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, if next of kin are named or proved who are not beneficiaries within the meaning of the statute, and the damages of such alleged beneficiaries are greater than the damages of the real beneficiaries, the existence of the latter and the amount of damages sustained by them is a proper matter of defense, p. 412.</p> <p>18. Death. — Wrongful Death. — Actions.-—Damages.—Distribution. —Statute.—In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, if beneficiaries are named in the complaint, or proof thereof is made under a complaint in general terms, distribution of the recovery is not limited to the persons actually entitled to receive the same under the statute, even to the exclusion of the persons so named or proved; such questions being for the determination of the court having probate jurisdiction, p. 412.</p> <p>19. Death. — Wrongful Death. — Actions.—Beneficiaries.—Proof.— Where, in an action for wrongful death under §285 Bums 1914, Acts 1899 p. 405, the complaint named three aunts of decedent as the nearest of kin who were dependent upon him fo'r support, proof of the nonexistence of grandchildren or other next of kin was. not necessary to a recovery, p. 413.</p> <p>20. Raileoads. — Injuries on Tracks.- — Trains Passing at Station.— A railroad company is under a common-law duty to use caution in passing with one train another train receiving and discharging passengers at a station, p. 415.</p> <p>21. Raileoads. — Injuries on Tracks.- — Trains Passing' Station.— Negligence. — Violation of Rule. — The violation by a railroad of its rule to the effect that “trains must use caution in passing a train receiving and discharging passengers at a station, and must not pass between it and the platform at which the passengers are being received or discharged,” was not negligence per se, but was proper, in an action for wrongful death, as- an item of evidence tending to show the degree of care recognized by the road as ordinary care under the conditions specified in the rule. ’ p. 415.</p> <p>22. Railroads. — Injuries on Tracks. — Care Required — Where the tracks of a railroad curved sharply to the east and west of a station, and passed through deep cuts and between high hills, so as to obstruct the view of approaching trains, it was the duty of the road’s servants .operating a train to use reasonable care to ascertain if a train was at the station discharging passengers and, if so, to stop, as required by a rule of. the railroad and not attempt to pass between the standing train and the station platform, and to have used such reasonable.care as might</p> <p>* be necessary for the protection of any person lawfully using the tracks at that point, p. 416,</p> <p>23. Railroads. — Injuries on Tracks. — Reasonable ' Oare. — What Constitiotes. — What constitutes reasonable care on the part of railroad employes operating a train for the protection of persons lawfully using the tracks at a station depends upon circumstances, and may require constant outlook after the place of possible danger is visible, the giving of warning signals, reduction of speed, or even stopping the train, p. 416.</p> <p>24. Trial. — Directing Verdict. — Poioer of Trial Court.• — Weighing Evidence. — The trial court cannot weigh the evidence to determine the facts involved in order to direct a verdict, p. 416.</p> <p>25. Railroads. — Injuries on Tracks. — Negligence.—Jury Question. —In an action against a railroad for the death, of one using its tracks at a station, the complaint being grounded on defendant’s alleged negligence in running its train past another train discharging passengers at a station in violation of its rules and without using due care, where the evidence was conflicting as to the speed of the train, when the steam was shut off and whether warning signals were given, the question of defendant’s negligence under the circumstances was for the jury, so that the court was not warranted in directing a verdict for defendant, p. 416.</p> <p>26. Death. — Wrongful Death. — Contributory Negligence. — Statutes. — In an action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, it is not necessary for plaintiff to allege or prove want of contributory negligence on: the part of decedent,since contributory negligence in such an action is made a matter of defense by the provisions of §362 Burns 1914, Acts 1899 p. 5S. p. 417. .</p> <p>27. Death. — Wrongful Death. — Contributory Negligence. — Jury Question. — Directing Verdict. — As a rule, in actions for wrongful death, decedent’s contributory negligence is a question for the jury, and only becomes a question of law for the court when the circumstances are such that but one inference can be drawn by reasonable minds with reference to decedent’s conduct upon the particular occasion, and if there is evidence indicating contributory negligence, regardless of its weight and character, the court is not justified in directing a verdict against plaintiff if there is evidence to the contrary, though such evidence is apparently overborne by other evidence more convincing, p. 417.</p> <p>28. Railroads. — Injuries on Tracks — Trespasser.—Where one went to a railroad station to ship a case of eggs, and after doing so, decided to wait for a milk can he was expecting on another train, he was not a trespasser, but was rightfully on the railroad’s premises, bound to exercise reasonable care for his own safety commensurate with the dangers of which he had either actual or constructive knowledge, p. 418.</p> <p>29. Death. — Wrongful Death — Actions.—Directed Verdict. — Evidence.- — Contributory Negligence. — Where one rightfully on the premises of a railroad was killed at its station, mere absence of evidence of the exercise of reasonable care by decedent would not authorize a directed verdict for the railroad in an action for the death, but only such affirmative evidence as would impel but one inference — that of contribtuory negligence when considered by reasonable minds, p. 418.</p> <p>30. Railroads. — Injuries on Tracks. — Contributory Negligence.— Care Required. — Due care for his own safety required a person on the station premises of a railroad to use reasonable diligence and caution to"'protect himself from all dangers arising from the operation of passing trains in a prudent and proper manner, and in such other manner as may have been, or could have been, known to him by the exercise of ordinary care under the circumstances, but he. was not required to use such unusual and extraordinary care as would be necessary for his protection from dangers arising from the reckless or negligent operation of passing trains of which he had no knowledge, either actual or xconstructive, in time to escape, p. 418.</p> <p>31. Railroads. — Injuries on Tracks. — Anticipating Negligence.— Presumption as to Speed. — One rightfully on the station premises of a railroad has a right to assume, in the absence of knowledge or warning to the contrary, that trains will not be operated at an excessive speed, and without due signals, or in any other negligent manner, p. 419.</p> <p>32. Railroads. — Injuries on Tracks. — Contributory Negligence.— Conflicting Evidence. — Jury Question. — Where one was killed on a railroad’s station premises by one train passing another train which was receiving and discharging passengers, and the evidence, in an action for the death, was conflicting as to the care used in operating the train striking decedent, both as. to its speed and where and when warning signals, if any, were given, and the jury might have found, on weighing'the evidence, that decedent was rightfully on the track, and used reasonable care for his own safety as against all known danger, or danger which he might reasonably have anticipated or known by the exercise of due care, but notwithstanding such care he was killed because of the negligent manner in which the train was operated under the existing circumstances, the question of decedent’s contributory negligence was for the jury. p. 419.</p> <p>33. Death. — Wrongful Death. — Actions.—Damages.—Evidence.— In an action for wrongful death, evidence that decedent was an industrious, successful and experienced farmer was admissible as bearing on the damages to* decedent’s next of kin, part of whom lived with him on a farm owned jointly by them. p. 420.</p> <p>■34. Appeal. — Presenting Questions for Review. — Judgment.—Correction. — Motion to Modify. — A motion to modify is the proper procedure to correct an erroneous judgment, and such motion must be made to present any question on appeal as to the correctness of the judgment, p. 421.</p> <p>35. Executors and Administrators. — Administrator’s Action for Wrongful Death. — Taxing Costs of Decedent’s Estate. — Statute.— In an administrator’s action for wrongful death under §285 Burns 1914, Acts 1899 p. 405, the trial court had no authority to adjudge, on the administrator being defeated in the action, that ' the costs be paid from decedent’s estate, p. 421.</p> <p>36. Executors and Administrators. — Actions by. — Costs.—"When an administrator sues in his trust capacity, judgment should be rendered against him in such capacity for costs where he fails in an action, and the costs should be paid from the funds in his hands belonging to the branch of his trust to which such suit pertained, and, if there be no funds in that branch of his trust, the costs must remain unpaid, since they cannot be charged against the administrator personally. (Brunning v. Golden [1902], 159 Ind. 199, distinguished.) p. 423.</p>

From Monroe Circuit Court; Robert W. Miers, Judge. Action by tbe Farmers State Bank of Frankfort against Harriett Beed, executrix of tbe last will and testament of Samuel P. Beed, deceased, and others. From a judgment for plaintiff, tbe named defendant appeals.

Prom Howard Circuit Court •, Charles A. Cole, Special Judge. 1 Action by Wilma N. Wright, by Joseph W. Lindley, her next friend, against William Benton Green and others. Prom a judgment for defendants, the plaintiff appeals.

<p>From Howard Circuit Court; William G. Purdum, Judge.</p> <p>Action by William W. Carey and another against Richard Fisher. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Mary Root and others against the Reserve Loan Life Insurance Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Drains. — Establishment.—Petition.—Requisites.—Drainage Commissioners. — Report.—Statute.—While under §6141 Burns 1914, Acts 1907 p. 508, §2, a petitioner for drainage is required to state generally in his petition his belief respecting the best and cheapest manner in which the proposed drainage may be accomplished, such statement is not binding on the drainage commissioners, since they are required, in case they report in favor of the drainage, to determine all questions of terminus, route, location, etc., of the proposed work, subject, however, to the ultimate determination of the court, p. 461.</p> <p>2. Pleading. — Pleading Conclusions. — Sufficiency.—Statute.—Under §343a Burns 1914, Acts 1913 p. 850, as to the construction of pleadings, the pleader’s conclusions must be construed, in determining the sufficiency of a pleading, as equivalent to the averment of all the facts required to sustain such conclusions, p. 462.</p> <p>3. Drains. — Establishment.—Rights of Landoumers. — Petition.— Remonstrance. — Statutes.—Under §§6141, 6143 Burns 1914, Acts 1907 p. 508, §§2, 4, a petitioner ordinarily has as strong a right to petition for drainage as has a landowner to remonstrate against it, and neither may be heard to complain that the other has exercised the right granted him by statute, p. 462.</p> <p>4. Drains. — Establishment,—Legal Remedy to Prevent. — Remonstrance. — Prima fade the statute (§6141 et seq. Burns 1914, Acts 1907 p. 508) affords owners of lands within a drainage district, although not named in the petition, a full and adequate legal remedy by remonstrance; and even though there is no remonstrance, or if one is filed and overruled, the establishment of the proposed drainage does not necessarily follow, p. 463.</p> <p>5. Drains. — Establishment.—Remonstrance.—Right to Drainage.— Landowners by repeatedly remonstrating against a drainage petition repeatedly filed, and thus successively preventing its reference 1 to the drainage commissioners and procuring its dismissal, do not thereby deprive the petitioners of any right, since there is no absolute right to drainage under any particular petition directed to any particular physical situation, p. 463.</p> <p>6. Injunction. — Right to Relief. — Adequate Legal Remedy. — That there is a remedy at law is not alone enough to defeat injunction, but the legal remedy must be as plain, complete and adequate as the remedy, in equity, p. 465.</p> <p>7. Drains. — Establishment.—Remonstrance.—Equitable Relief. — In the case of an ordinary petition for drainage the legal remedy by remonstrance is fully adequate, and for that reason alone recourse to equity to enjoin the establishment of the drain should be denied, p. 465.</p> <p>8. Injunction. — Right to Relief. — Adequacy of Legal Remedy.— Determination. — In determining the adequacy of legal remedies, some weight is given the fact, if it exists, that such remedies are vexatiously inconvenient, or that a denial of equitable relief results in irritation, annoyance and embarrassment which might be relieved by its application, p. 465.</p> <p>9. Injunction. — Grounds.—Multiplicity of Suits. — Equity may be invoked to prevent a multiplicity of suits or for the purpose of suppressing litigation when otherwise there would be actions at law unnecessarily or burdensomely numerous, p. 466.</p> <p>10. Injunction. — Grounds.—Establishment of Drain. — Where a landowner fraudulently joined with his attorney in filing repeated and vexatious petitions for the establishment of a drain in order to enable the attorney to collect fees and tp repeat the filing of the petition until the opposition would fail to file a remonstrance, the adverse landowners were entitled to injune- ' tion restraining the repeated filing of such petition, p. 466.</p>

<p>From St. Joseph Superior Court; George Ford, Judge.</p> <p>Action by Oscar Yan Lundy against Mary E. Daub and another. From a judgment for plaintiff, the defendants appeal.</p>

From Hamilton Circuit Court; Ernest E. Gloe, Judge. Proceedings in the matter of the receivership of the Hamilton Trust Company. A claim by the Wainwright Trust Company, as guardian of Matilda Eouls, filed with the receiver, John S. Dulin, was allowed as a general claim and disallowed as a preferred claim, and claimant appeals.

From Lake Superior Court; Johannes Kopelke, Judge. Action by the Peter Hand Brewing Company against Martin Stampfer. Judgment for plaintiff. From a ruling sustaining a motion to strike out a petition to set aside the judgment, the defendant appeals.

<p>From Rush Circuit Court; Clarence E. Weir, Special Judge.</p> <p>Action by Charles S. Henry against Christopher J. Bickhart. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Jackson Circuit Court; Simpson B. Lowe, Special Judge.</p> <p>Action by Frank Terkborn and others against Ziba McMahan. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Huntington»Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Elizabeth Kratz against Jacob Bonewitz and others. From a judgment for plaintiff, the defendant named appeals.</p>

<p>From Lake Superior Court; Walter T. Hardy, Judge.</p> <p>Action by William Wrigbt, receiver of tbe Indiana Trust and Savings Company, against-James H. O’Brien. From a judgment for the defendant, the plaintiff appeals.</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action between Israel Washbusky and David C. Peyton and others. From the judgment rendered, the former appeals.</p>

<p>From Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by John McConnell against John Herr. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Superior Court (90,589); Charles J. Orbison, Judge. Action by the State of.Indiana, on the relation of William H. O ’Brien, auditor of state, against the Continental Insurance Company of New York. From a judgment for defendant, the relator appeals.

<p>From Greene Circuit Court; Theodore E. Stinkard, Judge.</p> <p>Action by Jennie Rayburn against William A. Miller. From a judgment for plaintiff, tbe defendant appeals.</p>

From the Industrial Board. Proceedings under the Workmen’s Compensation Act hy William P. Iliff against the Standard Cabinet Manufacturing Company. From an award for the applicant, the defendant appeals.

<p>From Daviess Circuit Court; James W. Ogden, Judge.</p> <p>Action by George Hoffman against the Evansville and Terre Hante Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Superior Court; W. W. Thornton, Judge. Action by Herbert M. Woolen and another against S. Herbert Essex and others, in which Charles J. Wacker and others filed cross-complaints. From the judgment rendered, Wacker appeals.

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Proceeding for- divorce by Ada Lease against Schuyler M. Lease. From a judgment for the plaintiff, the defendant appeals.</p>

From Allen Circuit Court; J. W. Eggeman, Judge. Action by Daisy D. Parish against the Fort Wayne and Northern Indiana Traction Company and another. From a judgment for the plaintiff, the defendants appeal.

<p>From Franklin Circuit Court; Raymond 8. Springer, Judge.</p> <p>Action by Mary E. Fenton against John E. Beard and Cora Sheard. From a judgment for tbe plaintiff, Beard appeals.</p>

<p>From Clay Circuit Court; John M. Rawley, Judge.</p> <p>Action by Charles Johnson, as Insurance Commissioner for the Commonwealth of Pennsylvania, against Nicholas Schrepferman. From a judgment for the defendant, the plaintiff appeals.</p>

From Miami Circuit Court; Charles A. Cole. Judge. Action by Ora M. Chamness and others against Carrie M. Hiller and others, in which the Kokomo Trust Company was joined as a plaintiff. From a judgment for the defendants, the plaintiffs appeal.

From Morgan Circuit Court; Nathan A. Whitaher, Judge. Action by the State of Indiana, on relation of the Hughes Lumber and Grain Company, against Lewis P. Guthrie and another. From a judgment for the plaintiff, the defendants appeal.

<p>From Marion Superior Court (99,4,04); W. W. Thornton, Judge.</p> <p>Action by Frank A. Beck against the Indianapolis Traction and Terminal Company. From a judgment for the defendant, the plaintiff appeals.</p>

From Dekalb Circuit Court; Dan M. Link-, Judge. Action by Ida A. Wise against Edgar S. Wise for divorce. From a deeree .for the defendant on his cross-complaint and against the plaintiff on her complaint, the defendant appeals.

From Marion Probate Court (9,757); Mahlon E. Bash, Judge. Charles F. Hughes filed final report as administrator, to which William T. Patton, auditor of Marion county, filed objections. From an order denying approval of the report, the administrator appeals.

<p>'l. Chattel Mortgages. — Failure to Record in Time. — Transfer of Property. — Estoppel.—In an action by the assignee of a chattel mortgage against the purchaser of the mortgaged property, a complaint alleging that, though the mortgage wag not recorded within ten days, it was recorded, unreleased and unsatisfied at the time of the purchase and that the defendant recognized its validity by taking into consideration the amount secured by it as a part of the purchase price, was sufficient to overcome the rule that a chattel mortgage not recorded as required by §7472 Burns 1914, Acts 1897 p. 240, is prima facie void as to third parties, with or without notice; since, under such a showing, the defendant purchaser was estopped to deny the validity of the mort- ■ gage, and the property became the primary fund for the payment of the debt. pp. 660, 661, 663.</p> <p>2. Chattel Mortgages. — Recording.—Time.—Validity as to Assignee. — A chattel mortgage not recorded within ten days, as required by §7472 Burns 1914, Acts 1897 p. 240, being valid as between the parties, is valid as between the mortgagor and an assignee of the mortgage, p. 660.</p>

<p>1. Appeal. — Review.—Witnesses.—'Credibility.—Jury Question.— The credibility oí witnesses and the weight to be given their testimony are questions for the jury, and not for the court on appeal, p. 666.</p> <p>2. Appeal. — Evidence.—Weight.—Jury Question. — The court on appeal will not weigh conflicting evidence, the question being for the jury to determine, p. 667.</p> <p>3. Executors and , Administrators. — Action. — Evidence. — Sufficiency. — Review.—Where a claim was filed against a decedent’s estate on the theory that the decedent received and held a certain sum of money in trust which, after the payment of the donor’s funeral expenses, was to be paid to the claimant, there could be no recovery under evidence showing only the receipt of the money by the decedent and the payment of the funeral expenses, without establishing the amount of such expenses, since a verdict, in the absence of such evidence, could be returned only by conjecture as to the amount of the deduction for such expenses, and this the jury is not permitted to do. p. 667.</p>

<p>1. .Mechanics’ Liens. — Notice^—Description.—Extrinsic Evidence. —Imperfect and inaccurate descriptions of property in a mechanic’s lien notice may be aided by extrinsic evidence where proper averments appear in the complaint, and any description in such notice is sufficiently certain if the land described can be identified from it, or any reference therein, when aided by such evidence, p. 672.</p> <p>2. Mechanics' Liens.: — Notices—Description.—Certainty.—In an action to foreclose a mechanic’s lien, where the rights of third parties were not involved, a complaint which set forth a notice of a mechanic’s lien which showed the section, township, range, county, the acreage, the nature of the building erected thereon and the uses to which it was put, and which further alleged that the land on which the building was constructed was the only land owned by the defendant in that section and that such building was the only building thereon, was sufficient as against a demurrer for want of facts on the ground that the description contained in the notice was not sufficiently certain to permit introduction of extrinsic evidence, the allegations as to description being sufficient to raise a question of fact. p. 673.</p> <p>3. Mechanics’ Liens. — Notice.—Description.—Statute.—Construction. — Where the only point in dispute between a materialman and the owner of property is relative to the description of the property contained in a mechanic’s lien, the statute, §8297 Burns 1914, Acts 1909 p. 295, §3, is to be liberally construed, p. 673.</p>

<p>1. Appeal-. — Ruling on Demurrer. — Waiver.—Briefs.—An assignment Of error that the court erred in overruling a demurrer to the complaint is waived where the appellant fails to set out in his brief either the complaint or the demurrer, or to state any proposition indicating wherein the complaint is insufficient, p. 675.</p> <p>2. Appeal. — Briefs.—Evidence.—Waiver.—In an appeal-in an action for possession of real estate, where the appellant defendant failed to set out in his briefs the motion for new trial or its substance, or to show that any exception was taken to the ruling on such motion, and failed to set out a condensed recital of the evidence or a written lease, or its substance, relied upon as a defense, the brief not purporting to state the substance of the evidence, but announced only conclusions of counsel as to the effect of the testimony of the witnesses, and failed to mention some .of the witnesses or to set out any of their testimony, any question depending on a consideration of the evidence was thereby waived, p. 675.</p> <p>3. Appeal. — Briefs.—It is the appellant’s duty to present by his briefs facts from the record relied upon to show error, as the court on appeal will not search the record to reverse, though it may, and generally will, do so in order to affirm the judgment of the lower court, p. 676.</p> <p>4. Appeal. — Presumptions.—Every reasonable presumption is indulged in favor of the rulings of the trial court, p. 676.</p>

From the Wabash Circuit Court; Nott N. Antrim, Special Judge. Action by the Palmer National Bank against George S. Krieg and another. From a judgment for the plaintiff, the defendants appeal.

<p>From Elkhart Superior Court; James M. Harmon, Judge.</p> <p>Action hy Henry K. Wolfe against Valentine Griner. From a judgment for the defendant, the plaintiff appeals.</p>

<p>From Wells Circuit Court; W. S. Eiehhorn, Judge.</p> <p>Action by Aria (Dawley) Miles against Bertha Bouse and others. From a judgment for the defendants, the plaintiff appeals. Affirmed.</p>

<p>From Marion Probate Court; Mahlon E. Bash, Judge.</p>