ment against the appellant? That the statute creates a personal liability against every resident landowner whose property has been benefited by such improvements, provided he has had proper notice of the same, we think is obvious. In the first place it provides that the claim, when placed on the tax duplicate, shall be collected as other taxes. That the taxpayer is personally liable for any and all taxes he owes cannot be doubted. But, independently of this, the section (5638) provides that the trustee may recover the outlay and his own fees in an action before any justice of the peace of the township in which the owner resides. As a justice of the peace has no jurisdiction in foreclosure suits, the action contemplated here can only be a personal action. But even this remedy is not confined to a suit before a justice of the peace. He may enforce it in the circuit or superior court, and he may join with it a proceeding to enforce the lien, if he has taken the necessary steps to entitle him to one. Consequently, although the appellee has not shown himself entitled to a decree of foreclosure, he may have a personal judgment against the landowner if the proper allotment has been made against him, or if an allotment has been made in such a manner as not to be subject to collateral attack. If the assessor had jurisdiction to make the allotment in the present case, it would not be subject to a collateral attack. Whether this is so or not depends upon the validity of the notice averred in the complaint. While it might not be necessary to aver that notice was given, yet we think when the pleader undertakes to specify the character of the notice, he must show that it meets the requirement of the statute. The only notice given of the allotment, as disclosed in the complaint before us, was the posting for more than ten days in five public places in the proper township written notices of the place where and the time when the surveyor would hear all objections that might be made to such allotments, and that the surveyor also served a copy of such notice on the trustee of such township. It is also averred that the appellant was a resident of said township. No personal notice appears to have been served on him. In section 3 of the Act of 1889, referred to, which is section 5634, Rev. St. 1894, and section 1201 of Elliott's Supplement, it is provided that the surveyor shall cause to be posted up for not less than ten days in five public places in the township where the lands are situate, through which, or a portion of which, the ditch runs, written or printed notices of the time when and the place where he will hear all objections that may be made to such allotment. It is then provided that "a copy of said notice shall also be served upon the trustee of the township in which an allotment is made to any highway, as summons are served upon each resident owner or oc cupant of land and upon the officers of each corporate road or railroad upon whom summons might be served in any proceeding against said road or railroad allotted a portion of said work. Where the residence of any non-resident owner of such land is known to the surveyor he shall send a copy of such notice by mail to such non-resident owner. If a non-resident owner of land have a known agent in the county a copy of said notice shall be served upon such agent." We have punctuated the quotation just as we found it in the Acts of 1889. In Elliott's Supplement and in the Burns Revision of 1894 the punctuation in the first sentence quoted is somewhat different, a comma being placed between the words "resident" and "owner," making it read thus, "as summonses are served upon each resident, owner or occupant of lands," etc. When thus punctuated the language fails to make any sense whatever, although as given in the Acts of 1889 the meaning is by no means clear. We think, however, it was the intention of the legislature to provide for service of personal notice by copy on the resident landowner, as well as upon the township trustee. Four distinct classes of persons are or may be affected by the allotments, viz.: (1) Resident owners of lands through which, or a portion of which, the ditch runs; (2) nonresident owners of such lands; (3) road or railroad corporations; (4) townships. Each of these it must have been intended should be served with notice of the allotments. Taking them in their inverse order, we find that townships are to be served with notice by copy upon the trustee, road and railroad corporations by copy upon the officers upon whom summons might be served in any proceeding against such road or railroad, nonresident owners whose residence is known by copy sent by mail, and resident owners by personal service of a copy of the notice. When the residence of a nonresident owner is unknown, the posting of the printed or written notices constitutes the only service of notice required, and is doubtless sufficient to authorize a lien, but whether sufficient to authorize a personal judgment may well be doubted. However that may be, we think it is plainly enough provided that resident owners shall be served with a copy of the notice. By placing a semicolon after the word "served" in the above sentence, we think the intent of the legislature becomes plain. The sentence would then read as follows: "A copy of said notice shall also be served upon the trustee of the township in which an allotment is made to any highway, as summonses are served; upon each resident owner or occupant of land, and upon the officer of each corporate road or railroad upon whom summons might be served in any proceeding against said road or railroad allotted a portion of said work." When thus punctuated it is clear that the requirement of service upon each resident owner or occupant of land is the same as that upon the trustee of the township, viz. by copy of the notice served as summonses are served. There is no reason why personal service should be provided for upon the officers of road or railroad corporations and township trustees and not upon resident owners or occupants of land. Any other construction would render the entire language as to notice absolutely meaningless. To say that a copy of the notice shall be served upon the township trustee as summonses are served upon resident owners or occupants of land would be assuming that summonses are served upon resident owners or occupants in some way different from the method of service upon other people. The simple statement of such a proposition shows its absurdity. Manifestly the provision contemplates personal service by copy of the notice upon the trustee of the township, upon the owner or occupant of the land, and upon the officers of each corporate road or railroad affected by the allotments. It is averred in the complaint before us that the appellant was a resident landowner, and it is also shown that no copy of the notice of the allotment was ever served upon him. The allotment was therefore void as to the appellant, and subject to collateral attack. The surveyor could acquire jurisdiction over him and his land only in the way pointed out, and that was by serving upon him a copy of the notice. Perhaps if some kind of personal notice had been served upon the appellant, and the surveyor had determined that it was sufficient, such determination might be conclusive upon the appellant as against a collateral attack. Quarl v. Abbett, 102 Ind. 233, 1 N. E. 476. The case of Town of Cicero v. Williamson, 91 Ind. 541, is precisely in point when applied to the facts in the case at bar. That was a suit for an injunction to prohibit the town from collecting taxes levied upon the real estate of the plaintiff. The injunction was asked upon the ground that the land against which the taxes had been assessed had never been annexed to the town. It was shown that the proceedings had been had to annex the territory in question, from which proceeding no appeal had been taken. Hence the question arose whether the commissioners had jurisdiction to make the order annexing such territory. If the commissioners had jurisdiction, the proceedings and order could not be attacked in the injunction suit, the same being collateral to the proceeding to annex. In that case, as in this, the statute governing the proceedings required that, besides notice by publication, copies of the notice should be served upon resident property owners. The complaint averred that notice was only given by publication, and that the plaintiffs were residents of the county. The court, speaking through Elliott, J., said: "In our opinion these plaintiffs were entitled to notice as provided in the statute, and as the proceedings affected them personally, and as they had private rights affecting individual property separate and distinct from their interests in common with other citizens and taxpayers, the proceedings, so far as they affected their individual interests, were unauthorized and invalid. There is a plain distinction between proceedings affecting persons in common with other citizens and proceedings which directly affect their private rights as owners of property, and in the latter case, where the law provides that they shall have notice, they are entitled to it, and, if none is served upon them, there is no jurisdiction over the person. ** It would be strange indeed if a resident of the state, entitled to notice by express provision of law, should be concluded where no notice at all was given him. If this were so, then a man might lose important rights without having had his day in court, and this is contrary to fundamental principles. This is not a case, taking the averments of the complaint as true, where there was some notice, although irregular and defective, and it is not within the cases which hold that where there is a notice, although defective, the judgment is not void. The case as made by the complaint falls within the rule that a judgment void for want of jurisdiction of the person may be collaterally attacked. We say that there was no notice to known resident property owners, because the publication is notice only to unknown or nonresident owners. It does not, as is plainly evident from a reading of the statute, operate upon resi dents who are known to the town authorities. The complaint must be held good for the reason that it affirmatively shows that there was no jurisdiction of the person, and that there was nothing in the commissioner's record concluding the appellees from asserting that there was no such notice." In the present case it may be as truthfully said as it was in the case from which we have quoted that the proceedings which are claimed to conclude the appellant, and to estop him from asserting the invalidity of the allotments, were such as affected the private and property rights of the appellant personally, and distinct from any interest he had in common with other citizens and taxpayers. At all events he was entitled to notice by having a copy thereof served upon him, which was not done. sequently, the surveyor when he made the allotment against the appellant was without jurisdiction, and his proceedings in the premises were void. The complaint shows that the appellee is entitled to neither a personal judgment nor the enforcement of a lien. The demurrer to the complaint should therefore have been sustained. Judgment reversed. ROSS, J., concurs in the result. Con (15 Ind. App. 132) TYLER'S ESTATE et al. v. TYLER.1 1. One who furnishes money to her husband's administrator to pay decedent's debts is entitled to recover, on the doctrine of subrogation, though the evidence does not affirmatively show that when she furnished it she had any intention of requiring it to be repaid, where it does not appear that she made a gift of it. 2. A deed to husband and wife jointly, delivered to the husband, but not recorded till after his death, inures to her benefit. Appeal from circuit court, Knox county; G. W. Shaw, Judge. Action by Margaret E. Tyler against the estate of Wilson M. Tyler, deceased, and others. Judgment for plaintiff. Defendants appeal. Affirmed. Reilly & Ennison, for appellants. Townsend & Wilhelm, for appellee. DAVIS, J. The appellee in this case advanced to the appellant, as administrator of her husband's estate, $32,470, which was used by him in paying just and valid claims against said estate. Her right to recover, if such right exists, rests on the equitable doctrine of subrogation. In her claim it is alleged, among other things, that the said Wilson M. Tyler died seised of a large and valuable estate, in real and personal property, supposed to be worth about $100,000. There was no agreement that the money should be repaid to her. In the court below, she recovered judgment for the amount of her money so had and received by the administrator, and used in paying such debts. The first error discussed is that the court below erred in overruling appellant's demurrer to the complaint. Assuming that the correct rule applicable in such cases is enunciated in Browne v. Frost, 95 Ind. 248, there was no error in overruling the demurrer. Counsel for appellant vigorously assail this decision, insisting that it is not sustained by authority, nor supported by sound logic. In this view, we think, counsel are mistaken. In our opinion, the decision is sustained by authority, and supported by logic, but we do not feel called upon to defend it upon either ground. As the rule there announced seems to us to be both just and equitable, we are disposed to follow it without hesitation in this case. The widow, undoubtedly, had such an interest in the estate of her deceased husband, under the authority cited, that she might protect her interest, if she felt disposed to do so, by paying the just and valid claims against the estate. In allowing her to recover the money so paid, no one is injured. She is simply subrogated to the rights of the creditors whose just and valid claims were paid by her. She is only paid what otherwise would have been paid 1 Rehearing denied. to such creditors. She gets neither more nor less than they were entitled to receive. The special finding of facts sustains the averments in the complaint, and is sufficient to authorize the judgment in appellee's favor. In support of the motion for a new trial, it is insisted that the trial court erred in allowing the appellee the full amount of the proceeds of the homestead. In 1871, this real estate was conveyed to her husband. In 1884, through one John L. Butler, the property was conveyed to appellee and her husband jointly, but this deed was not then recorded. It was found among the decedent's private papers after his death, and was recorded by appellant. The delivery of the deed to her husband by Butler inured to the benefit of appellee, and at his death the entire title to the real estate vested in her. Nothing appears in the record tending to show that, when the property was sold after his death, she was not entitled to the full purchase price therefor. lt appears that the entire proceeds of the homestead, and also the life insurance payable to the appellee, were had and received by the administrator, and used by him in paying just and valid claims against the estate. There was no error, therefore, in allowing her the full amount of the proceeds of the homestead. It is true the evidence does not disclose that, when she paid these claims, she had any intention of requiring the money to be paid to her. She authorized the administrator to receive the money, and to pay and discharge the debts of her husband therewith. It does not necessarily follow, however, that she is not entitled to recover the money so paid. Her right to recover is not founded on an agreement, either express or implied, that the money should be repaid to her. As we have before observed, her right to recover rests in the equitable doctrine of subrogation to the rights of the creditors whose claims have been paid by her money. If it clearly appeared from the undisputed facts and circumstances that she made a gift of her money to the administrator for the purpose of paying such debts, perhaps she would not be entitled to recover. The evidence, however, does not inevitably lead to this conclusion, and the trial court has not so found. On a careful examInation of the record, we do not find any reason that requires us to reverse the judgment of the trial court. There is no error in the record. Judgment affirmed. BOARD OF COM'RS OF JOHNSON COUN- (Appellate Court of Indiana. Nov. 6, 1895.) 1. Where a complaint is in two paragraphs, to each of which a separate demurrer is filed, an *Superseded by opinion, 42 N. E. 760. assignment that the court erred in overruling the "demurrers" to the complaint renders it necessary to show that both paragraphs are bad. 2. A bill of exceptions will be disregarded unless it appears that it was filed with the clerk after it was signed by the judge. 3. Under the Indiana statutes, the duty of keeping county bridges in repair is imposed upon the county, and any neglect of that duty, resulting in injury to a traveler, renders the county liable. 4. The approaches to a county bridge being a necessary part thereof, it is as much the duty of the county to keep them in repair and reasonably safe for travel as to keep in repair the bridge itself. Board v. Sisson, 28 N. E. 374, 2 Ind. App. 311, followed. Appeal from circuit court, Bartholomew county; Francis T. Hord, Judge. Action by Joel Hemphill against the board of commissioners of Johnson county to recover for personal injuries resulting from a defective bridge. From a judgment for plaintiff, defendant appeals. Affirmed. T. W. Woollen, for appellant. M. L. Herbert, for appellee. ROSS, J. This was an action brought by the appellee in the Johnson circuit court to recover damages for personal injuries alleged to have been received while going upon and across a bridge spanning a creek or stream, the approach to which bridge it was alleged was not in reasonably safe condition for use, etc. The complaint is in two paragraphs, to each of which appellant filed separate demurrers, which were overruled by the court, and exceptions saved. The first specification of error assigned in this court is as follows: "The court erred in overruling the demurrers to the complaint herein." Under this specification of error, in order that it avail appellant, it is necessary to show that both paragraphs of the complaint are bad. The adjudications in this state are harmonious in holding that, under our statute, the duty of keeping county bridges in repair is imposed upon the county, and that any neglect of that duty, resulting in injury to a traveler, creates a liability on the part of the county therefor. Board v. Blair, 8 Ind. App. 574, 36 N. E. 216, and cases cited. And it has been held that the approaches to such a bridge are a necessary part thereof, and that it is as much the duty of the county to keep the approaches in repair and reasonably safe for travel as to keep the bridge itself in repair. Board v. Sisson, 2 Ind. App. 311, 28 N. E. 374; Board v. Deprez, 87 Ind. 509. As to the correctness of these rulings, we are not called upon to determine, but we may say that they are not in harmony with the rulings of the courts of most of the other states upon that subject. The great weight of authority is that counties, being nothing but a mere political subdivision of the state, whose officers are simply empowered to execute the duties imposed upon them as officers of the sovereignty,—or, in other words, using the public power for public purposes,-are not liable for injuries resulting from the discharge of such duties. Barbour Co. v. Horn, 48 Ala. 649; Haygood V. Justices, 20 Ga. 845; Sherbourne v. Yuba Co., 21 Cal. 113; Kincaid v. Hardin Co., 53 Iowa, 430, 5 N. W. 589; Board v. Riggs, 24 Kan. 188; Brabham v. Supervisors, 54 Miss. 363; Reardon v. St. Louis Co., 36 Mo. 555; Ensign v. Board of Supervisors, 25 Hun, 20; Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781; Cooley v. Freeholders, 27 N. J. Law, 415; Hollenbeck v. Winnebago Co., 95 Ill. 151; White v. Commissioners, 90 N. C. 437. That this is the just and proper construction to be placed upon the relation of the state and its subjects, and the liability of the former to the latter is evident; but that our courts have adopted and adhered to a different rule with reference to bridges over water courses or county bridges is settled. Board v. Brod, 3 Ind. App. 585, 29 N. E. 430; Board v. Castetter, 7 Ind. App. 309, 33 N. E. 986, and 34 N. E. 687; Board v. Blair, supra; Board v. Mutchler, 137 Ind. 140, 36 N. E. 534; Board v. Wagner, 138 Ind. 609, 38 N. E. 171; Board v. Nichols, 139 Ind. 611, 38 N. E. 526. And while the correctness of these rulings was seriously doubted by the supreme court in the case of Cones v. Board, 137 Ind. 404, 37 N. E. 272, the rule was recognized as firmly settled in this state. Following these authorities, we think each paragraph of the complaint states a cause of action. The second specification of error assigned is that "the court below erred in overruling the defendant's motion for a new trial in this case." There is evidence to sustain the verdict, but, if it was insufficient, we could not reverse the judgment, for the reason that the evidence is not properly in the record. In order that a bill of exceptions be a part of the record in a cause, it must be filed with the clerk after it has been signed by the judge. Jemison v. State, 12 Ind. App. —, 41 N. E. 74, and cases cited; Prather v. Prather, 139 Ind. 570, 39 N. E. 310, and cases cited. “Until filed, it is no part of the record; and, unless the filing is affirmatively shown by the proper record, there is no evidence of the fact upon which the appellate tribunal can act." Hormann v. Hartmetz, 128 Ind. 35, 27 N. E. 731. “A bill of exceptions cannot be regarded as a part of the record unless it is set out in the transcript of the record of the cause as made and certified by the clerk of the circuit court." Wolf v. Goodwin, 2 Ind. App. 79, 28 N. E. 192. In the record before us, it nowhere appears that what purports to be a bill of exceptions, containing the evi dence, and which is attached to, but is not embraced in, the transcript, and precedes that part of the record containing the copies of the proceeding, order-book entries, and papers filed in the cause, was ever filed with the clerk after it was signed by the judge. Judgment affirmed. (14 Ind. App. 534) DODGE v. MORROW et al. 1 (Appellate Court of Indiana. Nov. 7, 1895.) BILL OF EXCEPTIONS-TIME FOR FILING-AUTHENTICATION-BOOK OF ORIGINAL ENTRIES AS EVIDENCE. 1. A ruling on motion to submit issues to the jury, though excepted to at the time, cannot be reviewed, being presented by bill of exceptions signed by the judge, and filed at the following term, and no time for filing a bill having been given. * 2. A bill of exceptions is properly authenticated where, at the end of the transcript, the clerk certifies "the above and foregoing to be a full, true, and complete transcript of the pleadings and order-book entries, including the judg ment. * except the affidavit of defendant in support of motion for continuance, and counter affidavits thereto by plaintiffs, as the same appears of record and of the files in my office at this date," and an order-book entry immediately preceding the bill shows that the bill was filed in open court, and there is a file mark on the bill showing that it was filed with the clerk, and it is also signed by the judge who presided at the trial. 3. A book of original entries is not admissible in evidence; at least, without a showing that the entries were made by a person having personal knowledge, and contemporaneously with the transaction, and that there was a necessity for its introduction. Appeal from circuit court, Elkhart county; W. J. Davis, Special Judge. Action by William J. Morrow and others against Henry C. Dodge. Judgment for plaintiffs. Defendant appeals. Reversed. J. O. Hoover, for appellant. V. W. Van Fleet, for appellees. LOTZ, J. The appellees sued the appellant for the foreclosure of a mechanic's lien. The complaint averred that the appellees did work upon and furnished materials for the construction of certain buildings owned by appellant. The answer was (1) a general denial; (2) payment; (3) counterclaim; and (4) set-off. The cause was tried by the court. Finding and judgment in favor of appellees. The only assignment of error is the overruling of the motion for a new trial. One of the causes for a new trial is that the court erred in overruling appellant's motion to require the issues joined to be submitted to a jury for trial. The ruling on this motion is presented by a separate bill of exceptions. The record shows that the appellant excepted to the ruling when made, but no time for filing a bill was given. Subsequently, and at the following term of the court, a bill of exceptions presenting this ruling was signed by the judge, and the bill filed. The appellees insist that the ruling on this motion is not properly presented by the record before us. This position is fully sustained by the authorities. Thomas v. Griffin, 1 Ind. App. 457, 27 N. E. 754. The other causes for a new trial all relate to rulings of the court on the trial of the cause, and are presented by a separate bill of exceptions, containing the rulings and the evidence given in the cause. The appellees 1 Rehearing denied, 43 N. E. 153. Insist that this bill is not properly authenticated, and for that reason this court should refuse to consider the other causes for a new trial. The clerk of the court, at the end of the transcript, certifies "the above and foregoing to be a full, true, and complete transcript of the pleadings and order-book entries, including the judgment of the court, except the affidavit of defendant in support of motion for continuance, and counter affidavits thereto by plaintiffs, as the same appears of record and of the files in my office at this date." An order-book entry immediately preceding this bill of exceptions shows that the bill was filed in open court. There is also a file mark on the bill, showing that it was filed with the clerk of the court. The bill was also signed by the judge who presided at the trial. The bill is sufficiently authenticated. One of the causes for a new trial is that the court erred in permitting a witness for appellees to testify as to the value of attorney's fees. It is contended that the statute (Rev. St. 1894, § 7267; Elliott's Supp. § 1701) is unconstitutional, and in violation of section 23 of the bill of rights of the constitution of this state. The position is that the statute allowing attorney's fees grants privileges to one class of litigants which are denied to another class of litigants. The legislative power to compel an unsuccessful party to an action to pay an attorney's fee to his opponent, and laws which impose a penalty of double damages or some similar penalty, have often received the attention of courts of the last resort. Where the penalty has been imposed for some tortious or negligent act, such statutes have generally been upheld; but, where no wrongful or negligent conduct is imputed to the defeated party, any attempt to charge him with a penalty has not prevailed. Coal Co. v. Rosser (Ohio) 41 N. E. 263. If it were necessary to a determination of this appeal that the constitutionality of a statute be determined, this court would not have jurisdiction. In the view we take of it, the appeal can be determined without deciding any constitutional question. The seventh cause for a new trial is: "For error of law occurring at the trial in the court, over the objection and exception of the defendant, permitting Levi Deitch to read the plaintiff's books of account in evidence." Levi Deitch was a witness for appellees, and their bookkeeper. The witness testified that he made the entries upon the books each day, and in the regular course of his duties. In reference to the items in controversy, he stated that he had no independent recollection that the goods were furnished and work done, but that he would have to depend upon the books, except as to a few items. The usual method of transacting the business was for others to do the work and furnish the materials, and then inform him, or by furnishing him with a mem |