board of commissioners determining that a drain will be conducive to the public welfare, that the route thereof is practicable, that assessments made for the construction are in proportion to the benefits to be derived, and allowing damages. Held that, where a verdict specially found that a ditch would be for the benefit of the public, that the route was practicable, that the assessments were in proportion to the benefits derived, and found generally with the commissioners for the construction of the ditch as specified in the report of viewers, a venire de novo was properly refused.

7. Where one appealing from the report of a board of viewers under Rev. St. 1894, § 5671 (Rev. St. 1881, § 4301), which provides four grounds of appeal, succeeds only on one ground, she is entitled to judgment only for one-quarter of her costs.

8. The fact that property has already been appropriated for one public use is no objection to the appropriation, on a proper proceeding, for another public use not inconsistent with the former.

9. The objection that property taken for the construction of a public ditch under the drainage act has already been appropriated for a railroad can only be urged by the railroad company.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Petition by Azariah Empson against Beldora Steele and others for construction of a drain. From a judgment affirming the order of the board of commissioners establishing the drain, defendant Beldora Steele appeals. Affirmed.

Burrell & Branaman, for appellant. Applewhite & Applewhite and W. K. Marshall, for appellee.

MONKS, J. On the 14th day of December, 1892, appellee filed his petition before the board of commissioners of Jackson county, praying for the establishment of a drain, under the provisions of the act approved April 21, 1881 (Acts 1881, p. 410; Rev. St. 1881, §§ 4285-4317; Rev. St. 1894, §§ 5655--5688). Viewers were appointed by the board on the same day, to report before the next term. At the March term, 1893, of the board, the viewers not having filed any report, the case was continued until the next term. Sections 2, 8, and 9 (being sections 4286, 4292, and 4293, Rev. St. 1881), of the drainage act, under which this proceeding was brought, were amended by an act which took effect March 4, 1893 (Acts 1893, p. 329; Rev. St. 1894, §§ 5656, 5662, 5663). By the amended sections it was provided that the benefits to public highways should be assessed to the township and paid out of the road fund, while the original section provided the benefits should be assessed to the county. The amendatory section provided that the notice given should be by publication, while the section amended provided that it should be by posting. On April 8, 1893, the viewers filed their report, and at the June term of the board appellant filed a motion to continue the cause, for the reason that proper notice had not been given to the owners of the land assessed for benefits, which motion the board sustained, and continued the case for publication of the notice as the law

now requires." At the next term of the board, in September, proof of publication of notice in a newspaper was made, and thereupon appellant filed her remonstrance, and reviewers were appointed, who reported at the December term, 1893, approving the action of the viewers in all things, and the board entered an order establishing the ditch. Appellant appealed to the circuit court, and there filed a plea in abatement in which it was alleged "that the court had no jurisdiction, for the reason that this proceeding was commenced under the old law, and since that the statute has been amended by the legislature of 1893, changing the liability of certain parties to the assessment, and there is no provision saving pending cases." A demurrer for want of facts was sustained to this plea. Appellant then orally moved the court to strike out the report of the viewers, for the reason, stated by appellant, "that Morris B. Singer, after his appointment as such viewer by the board, and before the report was filed, became one of the sureties on the bond of the petitioner for the payment of the costs and expenses in said proceeding, and thereby became interested, and not competent to act as viewer," which motion the court overruled. Thereupon appellant filed his written motion to dismiss the cause. This motion was also overruled. The cause was tried by a jury, a verdict returned, and, over a motion for a venire de novo, and a motion for a new trial, judgment was rendered establishing the proposed work. Appellant also moved the court to modify the judgment, which was overruled. Exceptions were properly reserved to all the rulings of the court.

The first error assigned is "that the court erred in sustaining the demurrer to the answer in abatement." Appellant contends that, when the act of 1893 (Acts 1893, p. 329; Rev. St. 1894, §§ 5656, 5662, 5663; Rev. St. 1881, §§ 4286, 4292, 4293) took effect, the jurisdiction of the board of commissioners was ousted, for the reason that said act contained no provision saving pending cases, and that therefore the court erred in sustaining the demurrer to the plea in abatement. The act of 1893, supra, did not oust the jurisdiction of the board of commissioners over said cause, but the same, from the time said act took effect, was governed by its provisions, and it was necessary that all steps taken and proceedings had after that time should comply with the requirements of said act. The report of the viewers was filed April 8th, after said act was in force, and should have conformed to all the requirements thereof. At the June term of the board of commissioners, on motion of appellant, the case was continued, that notice might be given as required by said act. At the September term of the board proof was made, and the board found that notice had been given as required by said act, and thereupon appellant filed her remonstrance.

It is not shown that any provision of the amendatory act was not complied with. There was no error in sustaining said de

murrer.

The second error assigned is that the court erred in overruling appellant's motion to reject and strike out the report of the viewers. The reasons assigned for the motion have been heretofore stated. At the time the viewers were appointed Singer was not on the bond named, and it is not claimed that he was not then a disinterested person. The report was filed April Sth, and on the same day the bond was filed. This court cannot say, from the record, which was filed first, or that the bond was not signed and filed after the report was signed and filed. No motion was made by appellant to reject or strike out the report before the board of commissioners for this cause. The objection, therefore, if tenable when properly raised, was waived. It is a well-settled rule that questions not properly presented to the board of commissioners, except such as go to jurisdiction over the subject-matter, cannot be made for the first time in the circuit court. Budd v. Reidelbach, 128 Ind. 145, and cases cited on page 147, 27 N. E. 349; Metty v. Marsh, 124 Ind. 18, and cases cited on page 24, 23 N. E. 702. The motion was properly overruled.

The third error assigned calls in question the action of the court in refusing to sustain appellant's motion to dismiss the cause. This motion sets out six reasons why said motion should be sustained. None of them are jurisdictional, but, if true, are mere irregularities, which would not affect the jurisdiction of the court over the subject-matter. Updegraff v. Palmer, 107 Ind. 181, and cases cited on page 185, 6 N. E. 353. Besides, no such motion was made before the board of commissioners, and the same could not, therefore, be made in the circuit court. Budd v. Reidelbach, and authorities cited, supra. There was no error in overruling this motion.

that evidence would not be admitted under the items named was not a ruling to which an available exception could be taken. It amounted to no more than an announcement in advance of what his ruling would be if such evidence were offered. None was offered. The question could only be presented by an offer to prove facts in support of said items. If such evidence had been excluded by the court when properly offered, an exception could then be taken to the ruling of the court, and not before. We have carefully examined said items, however, and think it would have been proper to have excluded such evidence if it had been offered. Said items either presented questions already determined by the court, and not triable by jury, or were causes of remonstrance which were more fully stated in other items than those named. The error, therefore, if any was committed, was harmless. For the same reason it would not have been error if the court had stricken out said items on motion.

After the return of the verdict, appellant filed a motion for a venire de novo, which was overruled by the court. The verdict of the jury is as follows: "We, the jury, find that the ditch in controversy will be conducive of public health, convenience, and welfare, and that the proposed route in the viewers' report will be practicable, and that the assessments set out in said report are in proportion to the benefits to be derived from said ditch, except that the assessment against Mrs. Steele's land is in excess of the benefits to be derived by her in the sum of $20, and we assess her damages in that sum, and in all respects, except the assessment of that amount of damages in her favor, we find generally in favor of Azariah Empson, and in favor of the construction of the ditch as specified in the report of viewers on file in this cause. Leroy M. Mains, Foreman." An appeal lies from the orders of the board of commissioners as provided by section 4301, Rev. St. 1881 (section 5671, Rev. St. 1894), only in regard to the following questions: "First. Whether said ditch will be conducive to the public health, convenience or welfare. Second. Whether the route thereof is practicable. Third. Whether the assessments made for the construction of the ditch are in proportion to the benefits to be derived therefrom. Fourth. The amount of damages allowed to any person or persons or corporation." The verdict finds specially upon each of the four questions stated, the only ones submitted to the jury. Denton v. Thompson, 136 Ind. 446, 457, 459, 35 N. E. 264; Perkins v.

dicated and said he would not permit evidence to be introduced to the jury to support items numbered 2, 3, 4, 5, 10, 11, 12, 13, and 14, to which appellant excepted." No question is presented by this assignment of error. The items of the remonstrance were not stricken out. They remained a part of the remonstrance, after the statement of the court, the same as before. The statement of the court

the verdict might have been more definite and certain in regard to the question of appellant's benefits and damages, yet it is easily understood. The rule is that a verdict is not bad for informality if the court can understand it. It is to have a reasonable intendment, and is to receive a reasonable construction, and must not be avoided except from necessity. Polson v. State, 137 Ind. 519, 35 N. E. 907; Daniels

v. McGinnis, 97 Ind. 549; Chambers v. Butchers, 82 Ind. 508. There was no error in overruling the motion for a venire de novo. Denton v. Thompson, 136 Ind., on page 459, 35 N. E. 264; Budd v. Reidelbach, supra.

After the court overruled the motion for a venire de novo, appellant filed a motion "for judgment, on the verdict, discharging her property from the lien of the assessment for benefits as made by the viewers, and for damages in the sum of $20, and for her costs." This motion the court overruled. It is clear from the verdict that the $130 benefits assessed by the viewers was to stand and be paid by appellant, and that she was allowed $20 damages. It follows that the appellant was not entitled to the judgment she asks the court, by her motion, to render. Judgment was rendered on the verdict, establishing "the proposed work," etc., "and that appellant be allowed $20, and that appellee recover of appellant three-fourths of his costs, and that appellant recover of appellee one-fourth of her costs, and that the viewers shall meet and apportion the payment of the $20, as provided by section 4300, Rev. St. 1881 (section 5670, Rev. St. 1894), and the amendments thereto." Appellant moved to modify the judgment, so that she recover her costs, instead of one-fourth thereof. Appellant had only succeeded as to one issue,-that of damages,-while all the other issues were found against her. She was not, therefore, entitled to recover all her costs. Rogers v. Venis, 137 Ind. 221, 225, 36 N. E. 841; Zigler v. Menges, 121 Ind. 99, and cases cited on page 108, 22 N. E. 782; Watkins v. Pickering, 92 Ind. 332, 335.

One of the causes specified for a new trial is that the verdict is not sustained by the evidence. Although there is some conflict in the evidence, there is evidence which supports the verdict on every issue in the case, and, under the firmly-settled rule, this court cannot reverse a case on the weight of the evidence. Lawrence v. Van Buskirk (Ind. Sup.) 40 N. E. 54.

It is earnestly insisted by appellant that there was no proof that the notice required by section 3, p. 331, Acts 1893 (section 5663, Rev. St. 1894; Section 4293, Rev. St. 1881), was ever given, and that, therefore, the verdict was not sustained by the evidence. The question of notice was not to be determined by the jury, but by the court. The board of commissioners found that proper notice had been given. No party to this proceeding, either before the board or in the circuit court, whether they remonstrated or not, can question the jurisdiction of the board or the circuit court. Appellant cannot question the jurisdiction, because she waived the defects in the notice, if any, by filing her remonstrance.

The other

parties cannot, for the reason that, as there was some notice, the finding of the board of commissioners that notice was given, and the judgment of the circuit court in the case, are conclusive in a collateral attack. Perkins v.

Hayward, 132 Ind. 95, 103, and cases cited on page 104, 31 N. E. 670; Muncey v. Joest, 74 Ind. 409.

It is claimed by appellant that the ditch is partly located on the right of way of the O. & M. R. W. Co., and that such location is not authorized, for the reason that property once taken and appropriated to one public use cannot again be appropriated to another public use, citing City of Valparaiso v. Chicago & G. T. Ry. Co., 123 Ind. 467, 24 N. E. 249. The rule urged by appellant only applies when the second public use would naturally injure or destroy the uses for which such right of way was employed, and when the same could not exist without impairing the first uses. Cincinnati, W. & M. R. Co. v. City of Anderson, 139 Ind. 490, and cases cited on page 492, 38 N. E. 167. It is not claimed, nor does the evidence show, that the location of the drain upon the right of way would in any way interfere with the uses of the railroad company. On the contrary, it was found by the viewers, reviewers, and jury, and adjudged by the lower court, that the same would be a benefit to said right of way. The railroad company named was a party to the proceeding, and assessed with benefits, and raised no objection to such location or assessment. If it were conceded that such objection could be successfully made by the railroad company, it does not follow that appellant can do so. The rule is that appellant can only bring before the court such questions as affect her rights, not such as affect the rights of others. Zigler v. Menges, 121 Ind., on page 108, 22 N. E. 782. The railroad company, having been a party to the proceedings, and having raised no objection to the same, cannot successfully assail such location of the ditch, even if erroneously made. Perkins v. Hayward, supra. What we have said concerning the proof of notice and the location of the ditch on the right of way of the railroad company disposes of the question presented by the court's refusal to give the instructions requested by appellant. There is no available error in the record. Judgment affirmed.

(143 Ind. 363)

DE HART v. BOARD OF COM'RS OF JOHNSON COUNTY.1 (Supreme Court of Indiana. Nov. 1, 1895.) BILL OF EXCEPTIONS-TRANSCRIPT OF EVIDENCEINCORPORATION IN RECOrd-Burden of PROOF-INSTRUCTIONS.

1. The filing of a bill of exceptions, as required by Rev. St. 1894, § 641 (Rev. St. 1881, 8629), is essential to its consideration on appeal.

2. It must affirmatively appear that the manuscript of the evidence was filed in the clerk's office, as required by Rev. St. 1894, § 1476 (Rev. St. 1881, § 1410), before it will be considered on appeal.

3. A so-called bill of exceptions, attached to the transcript after the clerk's certificate, and after the assignment of errors, and not certified to be a bill of exceptions by the clerk of the trial court, is not entitled to be considered as part of the record.

1 Rehearing denied.

4. An instruction that plaintiff must "prove all the material facts in the complaint by a preponderance of the evidence" was not improper.

5. When the evidence is not in the record, instructions given by the court cannot be regarded as erroneous, if they are correct upon any state of facts admissible under the issues.

Appeal from circuit court, Bartholomew county; Francis T. Hord, Judge.

Action by Margaret De Hart against the board of commissioners of Johnson county, to recover damages for personal injuries. Defendant had judgment, and plaintiff appeals. Affirmed.

M. L. Herbert and Hacker & Remy, for appellant. T. W. Woollen, for appellee.

MCCABE, J. The appellant sued the appellee in the Johnson circuit court to recover damages for personal injuries alleged to have been received by her, the proximate cause for which, she alleged, was the negligence of the appellee in leaving unguarded, by railing, an approach to a county bridge in said Johnson county. The venue of the cause was changed to the Bartholomew circuit court, where a trial of the issues joined resulted in a verdict and judgment for the defendant, over plaintiff's motion for a new trial.

The only question presented by the assignment of error arises out of the action of the trial court in overruling the plaintiff's motion for a new trial. The errors complained of in the motion for a new trial are the giving, and refusal of the court to give, certain instructions, the admission of certain evidence, and that the verdict was contrary to law and the evidence. To determine most of the questions thus raised it is essential that we have the evidence before us. There is attached to the transcript what purports to be a bill of exceptions, properly signed by the trial judge, incorporating into said bill what purports to be the original long hand manuscript of the evidence. But there are several reasons why it is not, and cannot be, considered a part of the record:

1. There is no statement anywhere in the transcript that the bill of exceptions was ever filed in the clerk's office. This is required to be done before it can become a part of the record. Rev. St. 1894, § 641 (Rev. St. 1881, § 629); Shulse v. McWilliams, 104 Ind. 512, 3 N. E. 243; Loy v. Loy, 90 Ind. 404; Steward v. State, 113 Ind. 505, 16 N. E. 186; Downey v. Head, 138 Ind. 503, 38 N. E. 169; Commissioners v. Huffman, 134 Ind. 1, 31 N. E. 570; Guirl v. Gillett, 124 Ind. 501, 24 N. E. 1036; Shewalter v. Bergman, 132 Ind. 556, 27 N. E. 159; Railroad Co. v. O'Brien (at this term) 41 N. E. 528.

2. There is nothing to show that the longhand manuscript was ever filed in the clerk's office before it was incorporated in the bill of exceptions. This the statute requires to be done. Rev. St. 1894, § 1476 (Rev. St.

1881, 1410). This statutory requirement has an important significance, because the same section authorizes and requires the clerk, when it has been so filed, "to certify the said original manuscript of evidence when the same shall have been incorporated in a bill of exceptions, to the supreme court or other court of appeal, instead of a transcript thereof." It is a general principle of law that public records must be identified and authenticated by the keeper and legal custodian thereof. Painter v. Hall, 75 Ind. 208; 20 Am. & Eng. Enc. Law, 514, 515, and authorities there cited. Unless the longhand manuscript has been filed in the cause with the clerk before it is incorporated in the bill of exceptions, he cannot certify the original thereof to this court, and identify and authenticate it, as the statute cited requires, because he has not been made the legal keeper or custodian of the original longhand manuscript, as such, but has been made the custodian of the bill of exceptions incorporating it; and the original of that document the statute, as a general thing, does not authorize him to certify to this court.

3. And what purports to be the bill of exceptions in the case before us is not incorporated into the transcript, but is attached to the transcript after the clerk's certificate, and after the assignment of errors, nor is it certified to be, nor identified as, the bill of exceptions by the clerk of the trial court. Any one of these reasons is sufficient to prevent it being considered as a part of the record. The evidence not being in the record, we must presume that the instructions asked were refused because they were not applicable to the case made by the evidence. Jenkins v. Wilson, 140 Ind. 544, 40 N. E. 39; and authorities there cited; Holland v. State, 131 Ind. 568, 31 N. E. 359; State v. Beackmo, 8 Blackf. 246; Ruffing v. Tilton, 12 Ind. 259; Railroad Co. v. Cox, 37 Ind. 325; Blizzard v. Bross, 56 Ind. 74; Stout v. Turner, 102 Ind. 418, 26 N. E. 85; Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. 627.

The court gave 23 instructions, to the giv. ing of 22 of which exception was taken. The first one told the jury: "It devolves on the plaintiff to prove all the material facts in the complaint by a preponderance of the evidence, and if she fails to do so you should find for the defendant." In support of the objection to this instruction we are cited to Long v. Doxey, 50 Ind. 385. The instruction there condemned told the jury, in effect, that they must find for the defendant if the plaintiff had failed to establish all the facts alleged in the complaint. That is a very different thing from requiring the plaintiff to prove all the material facts alleged in the complaint. In Lime Co. v. Griffin, 139 Ind., at page 147, 38 N. E., at page 411, speaking of a similar objection to an instruction, this court said: "Other charges, stating the theory of the action, the burden

of proof, and the requirement that less than all the facts pleaded by the plaintiff would not support a recovery were given, when considered in connection with that to which exception is taken, presented the question fairly that upon the whole case a preponderance of the evidence must be found in favor of the material facts of the complaint before a verdict for the plaintiff could stand." That decision is exactly applicable to and decisive of the objection to the instruction now before us. We have examined all the other instructions objected to, and find that many of them in the abstract are fully as favorable to the appellant, if not more so, than she had a right to demand. When the evidence is not in the record, instructions given by the court cannot be regarded as erroneous if they can be considered correct upon any state of facts admissible under the issues. Hilker v. Kelley, 130 Ind. 356, 30 N. E. 304; Joseph v. Mather, 110 Ind. 114, 10 N. E. 78; Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232; Rapp v. Kester, 125 Ind. 79, 25 N. E. 141, and cases cited in each; Abrams v. Smith, 8 Blackf. 95; Murray v. Fry, 6 Ind. 371; Ruffing v. Tilton, 12 Ind. 259; List v. Kortepeler, 26 Ind. 27; State v. Frazier, 28 Ind. 196; Railway Co. v. Powell, 40 Ind. 37; Keating v. State, 44 Ind. 449; Insurance Co. v. Johnson, 46 Ind. 315; Higbee v. Moore, 66 Ind. 263; Association v. Houghton, 103 Ind. 286, 2 N. E. 763; Railroad Co. v. Rowan, supra. There are none of the other instructions that would be erroneous under any state of facts admissible under the issues. The evidence not being in the record, the admission of evidence complained of is not before us, nor is the question whether the verdict is contrary to the law or the evidence presented. The errors complained of not being shown by the record, the judgment is affirmed.

(142 Ind. 460)

KERLIN et al. v. REYNOLDS, Auditor, et al. (Supreme Court of Indiana. Nov. 5, 1895.) TOWNS-TAXATION-SALARIES OF OFFICERS.

1. Property situated within and taxable by a city is not taxable for township purposes by the township in which the city is located. 36 N. E. 693, affirmed.

2. Act March 31, 1879, § 32, providing that township trustees shall receive for actual services $2 per day, payable out of the township fund. and that for all services as overseers of the poor, such trustees shall be paid from the county treasury, was not impliedly repealed by Acts March 6, 1889, March 7, 1891, and March 4. 1893, each of which provided that township trustees should receive $2 per day as full compensation for all services performed in any capacity. 36 N. E. 693, affirmed.

3. The expenditures of a township trustee for blanks, records, fuel, rent, attorney's fees, etc.. are not expenses in which the urban and suburban population of a township are interested in common, and do not constitute a charge against the township fund.

4. The service to be performed by a township trustee in reference to the township library, established by Act March 6, 1865, is in his capacity

as school trustee, and is not a service for which the urban population of the township may be taxed.

Petition for rehearing. Overruled.

For decision on appeal, see 36 N. E. 693.

HACKNEY, J. The appellee has presented an extended, earnest, and able petition for a rehearing. With one or two exceptions the questions argued are those passed upon in the original opinion. It is insisted that we were in error in holding that the services of a trustee as overseer of the poor are compensated from the county treasury and not from the It is claimed that the acts of township fund.

March 6, 1889, March 7, 1891, and March 4, 1893, repeal section 32 of the act of March 31, 1879 (Acts 1879, p. 142), which provided that: "The per diem of township trustees shall be as follows: For each actual day's service they shall be allowed to be paid out of the township fund, $2.00: Provided, that for all services as overseer of the poor, said township trustees shall be paid out of any funds in the county treasury not otherwise appropriated, on the order of the board of county commissioners." The alleged repealing statutes each contained the provision "that each trustee of any township in this state, shall receive for the time he is necessarily engaged in the discharge of his duties, the sum of two dollars per day and this shall be full compensation for all services that they shall in any capacity and in any manner perform." By the same sections salaries are provided for trustees in townships having populations from 75,000 to 100,000. Laws in conflict with these provisions are expressly repealed, but there is no provision expressly or by implication repealing the former provision,-that made by the act of 1879, supra,-for the payment of such per diem from the township fund, and as overseer of the poor from the county treasury. As we said in the original opinion, the poor system is distinctly a county system, in the manner and source of its support, and this is verified by reference to the statute. Rev. St. 1894, §§ 8142-8190 (Rev. St. 1881, §§ 60666114). By section 8145, Rev. St. 1894 (section 6069, Rev. St. 1881), the support of the poor is expressly charged upon the counties, and the boards of commissioners are directed to raise the moneys for that purpose. This obligation extends to the transient, as well as the permanent, or resident, poor. Settlements by the overseer are made with the county commissioners, and the moneys expended by him are drawn on the order of the board from the county treasury. Rev. St. 1894, §§ 8160, 8163, 8164 (Rev. St. 1881, §§ 6084, 6087, 6088). This theory of the law was clearly outlined, both as to services performed, and as to compensation, in the cases of Board v. Bromley, 108 Ind. 158, 8 N. E. 923, and Board v. Fischer, 86 Ind. 139. To take the charge of compensation to the overseer, from the county, and to place it against the township, breaks the uniformity of the system as a county charge,