Walmer v. Baxter.

STROTHER V. THE STATE.

[No. 3,512. Filed November 13, 1900.]

From the Monroe Circuit Court.

Affirmed.

J. R. East, R. H. East and J. E. Kelley, for appellant. W. L. Taylor, Attorney-General, Merrill Moores and C. C. Hadley, for State.

WILEY, J.-The record before us presents the identical questions as were presented by the record in the case of Roberts v. State, ante, 366. The evidence in this case is a carbon copy of the evidence in the Roberts case. The decision in that case is controlling here, and upon that decision the judgment is affirmed.

HUNCHEON, ADMINISTRATOR, v. Long.

[No. 3,320. Filed November 23, 1900.

From the La Porte Circuit Court. Reversed.

N. F. Wolfe, E. E. Weir, M. H. Weir and Lemuel Darrow, for appellant.

F. E. Osborn and H. W. Sallwasser, for appellee.

COMSTOCK, J.-The only question presented by this appeal is decided by this court in Huncheon v. Long, ante, 530. Upon the authority of that decision the judgment of the trial court is reversed, with instructions to overrule the demurrer to appellant's complaint.

WALMER V. BAXTER ET AL.

[No. 3,066. Filed November 27, 1900.]

From the Blackford Circuit Court.

J. A. Hindman for appellant.

Reversed.

J. S. Dailey, Abram Simmons, F. C. Dailey and C. W. Kinnan, for appellees.

BLACK, J.-This was a suit to enforce assessments for the construction of the Green street sewer in the city of Montpelier, the complaint consisting of six paragraphs. The questions presented are like those decided by us this day in the case of Burris v. Baxter, ante, 536, and upon the authority of that case and of Spaulding v. Baxter, ante, 485, the judgment is reversed, and the cause is remanded with instruction to sustain to the complaint the demurrer of appellee Baxter to the

answer.

Evansville, etc., R. Co. v. Huffman.

EVANSVILLE AND INDIANAPOLIS RAILROAD COMPANY v. HUFFMAN.

[No. 3,405. Filed December 13, 1900.]

From the Clay Circuit Court. Reversed.

J. G. Williams, D. P. Williams and G. A. Knight, for appellant. Albert Payne and G. S. Payne, for appellee.

PER CURIAM.-Upon the appellee's confession of error, filed in this cause, the judgment is reversed, and the cause is remanded with instruction to sustain the appellant's demurrer to the complaint.

INDEX.

ABATEMENT-When plea in abatement may be filed after cause is
at issue, see PLEADING, 13; Kokomo St. R. Co. v. Pittsburgh, etc.,
R. Co., 335.

Refusal of Receiver to Continue Action Against Corporation.—The
refusal of a receiver of a corporation to continue an action previ-
ously brought by such corporation may be pleaded in abatement. Ib.
ACTION-For death by wrongful act, see MINES AND MINERALS; Boyd
v. Brazil Block Coal Co., 157.

An action at law cannot be maintained against a county treasurer
for money owing by the county, see COUNTIES; Heritage, Treas.,
v. Bronnenberg, 692.

1. Statutory Right.-When a new right or proceeding is created by
statute, and a mode prescribed for enforcing it, that mode must be
pursued to the exclusion of all others.

Boyd v. Brazil Block Coal Co., 157.
2. Limitation.-Death by Wrongful Act.-Statutes In Pari Materia.
-All statutes of the State on the subject of death by wrong-
ful act are in pari materia, and must be construed together,
and when so construed the provision of $285 Burns 1894 limiting
the time within which an action may be brought for death by
wrongful act to two years applies to $7473 Burns 1894, known as
the coal mining act.
Elliott v. Brazil Block Coal Co., 592.
Demand.-Suit on Contract for Wages.-In an action for wages
due under a contract it is not necessary that the complaint allege
a previous demand, since the suit constitutes a sufficient demand.
Hartford Life Ins. Co. v. Bryan, 406.

3.

ADVERSE POSSESSION-
Passageway Under Railroad.-Pleading.-A complaint by a land-
owner against a railroad company for damages on account of the
action of defendant in closing up a passageway under its tracks, to
plaintiff's damage, is sufficient against a demurrer, where it is
alleged that plaintiff was the owner of the land with uninter-
rupted adverse use, under claim of right, with notice to defend-
ant of the passageway for more than twenty-one years.

Lake Erie, etc., R. Co., v. Hoff, 239.
AFFIDAVITS-For disturbing public meeting, see CRIMINAL LAW,
3; State v. Bogard, 123.

For motion for new trial, see NEW TRIAL, 2; Campbell v. Nixon, 90.
ALTERATION OF INSTRUMENTS-

Bonds.- Contracts.—Principal and Surety.-Release of Surety.—In
an action on a bond given to secure the performance of a contract
entered into by an agent for the sale of goods, it was shown that

(702)

the contract authorized the agent to sell goods "in the State of
Indiana and," with a blank of two and a half lines in the printed
form of contract after the word "and," but the contract was
otherwise complete upon its face; that after the execution of the
bond by defendants, on the back of the contract, and without
their knowledge or consent, plaintiff filled in the blank space, giv-
ing the agent additional territory in the state of Illinois. Held,
that the alteration was material and unauthorized, and released
the sureties on the bond.
Good Roads, etc., Co. v. Moore, 479.

ANIMALS-Indictment under act of 1897 for keeping or harboring
dog without holding tax receipt, see CRIMINAL Law, 1; State v.
Thompson, 581.

ANSWER-See PLEADING.

APPEAL AND ERROR-When trial judge not compelled to sign
bill of exceptions, see MANDAMUS; Bogue v. Murphy, 102.

When judgment of acquittal will not be reviewed on appeal, see
CRIMINAL LAW, 7; State v. Phillips, 579.

The rule that a cause will not be reversed on the weight of the evi-
dence applies to affidavits and counter-affidavits as well as to
oral evidence, see EVIDENCE, 11; Masten v. Indiana Car, etc.,
Co., 175.

1. Assignment of Errors.-The correctness of facts found by the
trial court is admitted by an assignment of error "that the court
erred in its conclusions of law."

Indianapolis Nat. Gas Co. v. Pierce, 116.
2. Assignment of Errors.-An assignment of errors, that "the court
erred in its special findings thirteen, fifteen, and sixteen, and also
in overruling appellant's motion to strike out said findings," does
not present any question on appeal.
Peterson v. Struby, 19.
3. Assignment of Cross-Errors.-The action of the court in overruling
a demurrer to the complaint cannot be reviewed on an appeal by
plaintiff from the ruling on the answers where no assignment of
cross-error was made thereon by appellee. Farmers' Bank v. Orr, 71.
4. Joint Assignment of Error. - New Trial. - Instructions. — A
joint assignment, in a motion for a new trial, that the court
erred in the giving or the refusal to give a series of instructions
will not be considered on appeal, when appellant's attorney has
failed to present in his brief an argument against the ruling of
the trial court as to each instruction in the series.

City of Ft. Wayne v. Patterson, Adm., 547.
5. Assignment of Errors.-New Trial.-Errors in the giving and in
the refusal to give instructions, and in the admission and rejection
of evidence cannot be presented for review on appeal by independ-
ent assignments of error. Such questions must be assigned as
causes in a motion for a new trial.
Jean v. State, ex rel., 339.
6. Joint Assignment of Error.- Review.- A ruling which does not
affect all who jointly assign it as error will not be considered on
appeal. Advance Mfg. Co. v. Auch, 687; Osborn v. State, ex rel., 521.
7. Joint Assignment of Error.-A joint assignment of error as to the
sufficiency of a complaint is not available if either paragraph there-
of is good.
American Tin-Plate Co. v. Guy, 588.

APPEAL AND ERROR-Continued.

8. Joint Assignment of Errors.-Where three parties have joined in an
appeal by the assignment of joint errors, and have filed a joint brief,
it is too late for two of them to say that they decline to join in the
appeal of their co-appellant. Advance Mfg. Co. v. Auch, 687.
9. Pleading. Available error cannot be predicated upon the action
of the court in overruling a motion to require plaintiff to separate
into paragraphs the causes of action improperly joined.

ants.

-

Everitt, Seedsman, v. Bassler, 303.
10. Parties.-Notice.-The word co-parties, as used in §647 Burns
1894 providing that a part of several co-parties may appeal and must
serve notice of the appeal upon all the other co-parties, means parties
to the judgment appealed from, and not co-plaintiffs or codefend-
Hildebrand, Tr., v. Sattley Mfg. Co., 218.
11. Bill of Exceptions.-Mandamus.-The determination as to what
facts should be stated in a bill of exceptions invokes the exer-
cise of a legal discretion, and is, therefore, a judicial act, and hence
a superior tribunal cannot compel an inferior tribunal to say what
shall go into a bill of exceptions.
Bogue v. Murphy, 102.
12. Bill of Exceptions.-Evidence.-Review.-Where a bill of ex-
ceptions shows upon its face that it does not contain all the evidence,
the Appellate Court will not consider any question which depends
for its proper decision upon the evidence, although the bill states
that it contains all the evidence.
Jean v. State ex rel., 339.

13. Bill of Exceptions. — When Not in Record.
- A bill of excep-
tions does not become a part of the record unless it is presented to
the trial judge within the time given.

City of Huntington v. Boyd, 250.
14. Record.-Bill of Exceptions.-The record must affirmatively
show that a bill of exceptions was filed in the clerk's office; the
stencil file mark of the clerk indorsed thereon is not sufficient.
Peterson v. Struby, 19.

15. Exceptions.-The action of the court in overruling a motion for
a new trial will not be considered on appeal, where it is not shown
that any exception was taken to the ruling on the motion at the
time it was made, but that an exception was taken on the follow-
ing day and a motion for a nunc pro tunc entry made and over-
ruled, and no error assigned on such ruling.

Tecumseh Facing Mills v. Sweet, Dempster & Co., 284.
16. Joint Exceptions.-Where an exception is made jointly to the
conclusions of law, and any one of the conclusions is right the ex-
ception must fail.
Hildebrand Tr. v. Sattley Mfg. Co., 218.
17. Record.-Precipe.-Where the record purports to contain such
parts of the proceedings as were ordered by the precipe, only such
entries and papers as are embraced in the precipe are properly parts
of the record, and, in the absence of the precipe, the record in such
case cannot be considered.
Hollis v. Roberts, 426.

18, Record. Where the record fails to show that the trial court
made any ruling upon a demurrer to a pleading, no question is pre-
sented.
Ib.

19. Record.-Marginal Notes.-Evidence.-Questions depending upon
the evidence will not be considered on appeal, where the evidence
covers over 500 pages of typewritten matter, and the record con-
tains no marginal notes, as required by rule thirty of the Appel-
late Court.
Citizens' Street R. Co., v. Damm, 511.