APPEAL AND ERROR-Continued.
20. References to Record.-Waiver.-Where a party fails to call the
court's attention to the particular part of the record where the ques-
tions asked to be decided may be found he thereby waives his right
to have them decided.
Home Ins. Co. v. Sylvester, 207.
21. Motions.-How Made Part of Record. To make motions to retax
costs or to modify the judgment parts of the record by order of
court, instead of by bill of exceptions, they must be set out in the
order.
Binford v. Dukes, 670.
22. Record.-Motion to Strike Out Parts of Pleading.-In order to
present any question for review upon appeal on the ruling of the
court upon a motion to strike out a pleading or a part thereof, such
pleadings or parts of pleading, the motion, and ruling thereon, must
be brought into the record by a bill of exceptions.
Brown v. Langner, 538; Supreme Tent, etc., v. Volkert, 627.
23. Motions.-A judgment will not be reversed because of the action
of the court in overruling a motion to strike out parts of a com-
plaint.
Brown v. Langner, 538.
When Evidence Not in Record.-Under the act of March 3, 1899
(Acts 1899, p. 384), the evidence is not properly in the record, where
it is not shown that any time was fixed by the court in which the tran-
script of the evidence was to be filed with the clerk, the clerk does
not certify that the certificate of the judge attached is that of the
judge, and the certificate of the clerk does not show when the long-
hand manuscript of the evidence was filed in his office.
Sprankle v. Bart, 681.
25. Record. - Instructions. Instructions in a criminal cause can
only be brought into the record by bill of exceptions.
Neeld v. State, 603.
26. Waiver.-Default.-Where a proceeding to set aside a default
was disposed of on its merits without objection to the form of the
proceeding, no such question can be raised on appeal.
Masten v. Indiana Car, etc., Co., 175.
27. Default.- Pleading.-Where an application to set aside a de-
fault is not treated as a pleading in the trial court it cannot be thus
questioned on appeal.
го.
28. Judgment.-Default.—The action of the court in setting aside
a judgment rendered by default upon application and affidavits
tending to show that the default resulted from excusable neglect
and inadvertence will not be disturbed on appeal unless an abuse of
discretion on the part of the trial court is shown.
Ib.
29. Instructions.-Presumption.-It will be presumed on appeal that
instructions tendered and refused were refused because they were
not tendered in time, where the record does not affirmatively show
that they were tendered before the argument was commenced.
Sprankle v. Bart, 681.
30. Jury.-A judgment in an action on an account will not be re-
versed because the jury took to their room the complaint, with
which was filed a verified bill of particulars, at the end of which
was a memorandum of interest due on the account, where the proper
amount of interest was included in the verdict.
Haas v. Cones Mfg. Co., 469.
31. Evidence.-The ruling of the court in excluding testimony
will not be reversed on appeal if the ruling can be sustained upon
any theory, whether advanced at the time of the ruling or not. Ib.
APPEAL AND ERROR-Continued.
32. Evidence.-Objections.-Only the grounds of objection presented
to the trial court can be considered on appeal as against the ruling
of the court.
Everitt, Seedsman, v. Indiana Paper Co., 287.
33. Damages. -Evidence.-A judgment for damages arising from
the breach of an oil and gas lease will not be reversed on appeal
because of insufficiency of damages awarded, where the evidence
as to damages is conflicting.
Trammel v. Briant, $75.
34. Excessive Damages. An assignment in a motion for a new
trial in an action for damages for a breach of contract that the
damages assessed were excessive presents no question, since the
question of excessive damages can arise only in actions ex delicto.
Bluffton, etc., Ice Co. v. Richardson, 263.
35. Sustaining Demurrer to Argumentative Denial.-When Harm-
less Error.-It is not reversible error to sustain a demurrer to
a paragraph of answer which is merely an argumentative denial,
a general denial having been pleaded.
City of Huntington v. Boyd, 250; Burket v. Miller, 110.
36. Harmless Error. The rule that error in overruling a demurrer
to a complaint is cured by special finding of facts and conclusions
of law thereon, is based upon the premise that a right result was
reached.
Vestal v. Craig, 573.
37. New Trial.-Neither the ground that a finding and judgment"
on a counterclaim is contrary to law, nor that it is contrary to the
evidence, is a cause for a new trial recognized by statute.
Binford v. Dukes, 670.
38. Inconsistent Special Findings. New Trial. - That certain
special findings are inconsistent with other findings is not a reason
for a new trial.
Peterson v. Struby, 19.
Judgment. Where in an action against a foreign corporation on
account and in attachment defendant appeared to the main action
and filed answer, such appearance gave the court power to render
a personal judgment.
Hartford Life Ins. Co. v. Bryan, 406.
ASSIGNMENT FOR BENEFIT OF CREDITORS-
Mortgages.-Instructions not Applicable to Evidence.-An insolvent
debtor executed a mortgage on real estate to defendant to secure
plaintiff and other creditors whom he wished to prefer, defendant
giving due bills to each of the creditors so secured as a memoran-
dum of claim. The next day the debtor made a general assignment
for the benefit of creditors, and the assignee, pursuant to an order of
court, sold and conveyed the land to defendant. Defendant paid off
prior liens, and settled with all of the other creditors, except plaintiff,
who refused to accept less than the full amount of his claim and
brought suit on the due bill given him by defendant. Held, that the
court erred in instructing the jury that if they believed that defend-
ant accepted a deed to the land assuming the encumbrances thereon
he would be liable for the full amount of plaintiff's debt, where the
deed is not in evidence, and there is no evidence that it contained
any stipulation for the assumption of the encumbrances by the
grantee.
Shilling v. Braniff, 676.
ATTACHMENT-A receiver appointed for a foreign corporation in
another state does not thereby acquire such title to the property
of the corporation situate in this State as to defeat an attachment
subsequently issued at the instance of a creditor by a court in
this State. See RECEIVERS, 2; Gray, Rec., v. Covert, 561.
Quashing Writ.-Complaint. — Attachment proceedings are merely
ancillary to the main action, and the quashing of the writ of
attachment does not carry with it the complaint.
Hartford Life Ins. Co. v. Bryan, 406.
1. May Bind Client for Services of Stenographer.- An attorney
having general control of the trial of a cause may bind his client
to pay for copies of the evidence furnished by a stenograper for
use in the trial of such cause.
Miller v. Palmer, 357.
Lien for Fees.-Judgments.- Attorneys at law successfully prose-
cuted an action for their client, and filed a lien on the judgment
for their stipulated fee, and, thereafter, the client, without the
knowledge or consent of the attorneys, assigned the judgment to a
third party without consideration; later, the assignee of the judg-
ment, without the knowledge or consent of the attorneys, and
without consideration, satisfied the judgment of record. Held, that
the lien was in no way affected by the transaction, and that the
assignee did not become personally liable to the attorneys.
Peterson v. Struby, 19.
ATTORNEY-GENERAL-There is no constitutional or statutory
inhibition against the Attorney-General practicing law.
Masten v. Indiana Car, etc., Co., 175.
BAILMENT-See WAREHOUSEMEN.
BANKS AND BANKING-As to taxation of the real estate of
National banks, see TAXATION, 1; Board, etc., v. First Nat.
Bank, 94.
Amount of Judgment.-Discretion of Court.-The amount of judg-
ment in a bastardy proceeding is largely in the discretion of the
court and will not be disturbed on appeal unless it is shown that
the judge has abused his discretion. Jean v. State, ex rel., 339.
BENEFICIAL ASSOCIATIONS-See INSURANCE.
1. Rights of Member to Benefits.-A member of a beneficial associa-
tion who, during the time for which he claimed indemnity, was, on
account of sickness, wholly disabled and prevented from prosecut-
ing any and all kinds of business, does not forfeit his right to in-
demnity by leaving his room, under the direction of a physician,
for the benefit of his health, although such act was in violation of
the strict letter of the contract. Columbian, etc., Assn. v. Gross, 215.
2. Forfeitures.-Prohibited Occupations. Estoppel. Where the
local officers of a fraternal insurance company received the dues
and assessments of a member after he had engaged in the liquor
traffic, with a knowledge of such fact, and the company received
and retained the last payment with a knowledge thereof, and of
the further fact that he died while so engaged, the company will
BENEFICIAL ASSOCIATIONS-Continued.
be estopped from asserting a forfeiture of the certificate under a
by-law prohibiting members from engaging in the sale of intoxica-
ting liquors.
Supreme Tent, etc., v. Volkert, 627.
3. Forfeitures. — Prohibited Occupations.-Estoppel.-Where a fra-
ternal insurance company sent blank forms for proof of death
and required them to be filled out and sworn to by beneficiary.
with knowledge that insured had engaged in the sale of intoxica-
ting liquors in violation of the by-laws of such company, the com-
pany is estopped from setting up a forfeiture of the certificate on
the ground that he engaged in such prohibited occupation. Ib.
4. Certificate.- By-Laws.- Conflict. Where the certificate issued
by a fraternal insurance company provides that the board of
trustees may suspend members from all benefits of the order who
after admission engage in occupations prohibited by the by-laws,
and the by-laws provide that members who engage in such prohib-
ited occupations shall stand suspended, the court, in determining
the rights of the parties, will adopt the provision that will give the
greater right to the insured and his beneficiary.
го.
5. Collection of Assessments.-Local Officers Agents of Company.—
Where payment of dues and assessments to the local officers is the
only method provided by a fraternal insurance company, and it is
made the duty of such officers to transmit same to the home office
of the company, the local officers in the collection and transmission
of dues and assessments are the agents of the company, notwith-
standing a provision in the by-laws to the contrary.
Ib.
BILLS AND NOTES-Discharge of surety on account of extension
of time of payment, see PRINCIPAL AND SURETY, 1; Bowman,
Adm., v. Citizens' Nat. Bank, 38.
Equitable defense in action by indorsee of note, see TRIAL, 13;
Cooper v. Merchants', etc., Bank, 342.
Warehouse receipt not a negotiable instrument, see WAREHOUSE-
MEN, 1; Toner v. Citizens' State Bank, 29.
1. Party in Interest.-Burden of Proof. - The holder of a note is
prima facie the owner thereof, and entitled to sue upon it, and
the burden of showing that he is not the real party in interest, as
well as of showing payment, is upon the defendant in the event of
a suit by the holder.
Ayres, Rec., v. Foster, 99.
2. Negotiable Instruments.-Instalments of Interest Due and Unpaid.
-A note, negotiable under the law merchant, does not lose its nego-
tiability by instalments of interest thereon remaining due and unpaid.
Cooper v. Merchants', etc., Bank, 341.
3. Signatures.-Agreement.- Delivery.-Evidence in an action on
a promissory note that the note was delivered to the agent of the
payee under an agreement that the note should not be delivered
until signed by another person, is inadmissible, since delivery to the
agent passed the title to the payee.
Ib.
4. Evidence.-Good Faith of Purchaser.—Although a note does not
lose its negotiability by instalments of interest thereon remain-
ing due and unpaid, evidence that the purchaser of a note bought
it with knowledge that two annual instalments of interest were due
thereon, was admissible on the question of the good faith of the
purchaser.
Ib.
BILLS AND NOTES-Continued.
5. Indorsement After Maturity.-If negotiable promissory notes given
for rent are surrendered for the use of the lessee, or for cancelation,
the subsequent indorsement of such notes by the lessor after matu-
rity confers no right of action upon the indorsee.
Campbell v. Nixon, 90.
6. Action Against Indorsers.—Special Finding.—În an action on a
negotiable promissory note, a judgment against indorsers cannot
be sustained on special findings which show no demand on the
maker for payment, and no notice to the indorsers of non-payment,
and no waiver of such demand and notice.
La Follette Coal, etc., Co. v. Whiting Foundry, etc., Co., 647.
BONDS Action on injunction bond, see INJUNCTION; Burket v.
Miller, 110.
Action on garnishment bond, see GARNISHMENT; Davis v. Bickel, 378.
Release of surety by adding words in blank space in bond, see
ALTERATION OF INSTRUMENTS; Good Roads, etc., Co. v. Moore, 479.
1. Guaranty. — Liquidated Damages. ·Action. Parties. Where
defendants, by a separate instrument, guaranteed the perform-
ance of a contract entered into by a gas company to supply
plaintiff with gas, binding themselves to pay plaintiff a certain sum
as liquidated damages upon a breach of the contract on the part of
the company, it is not necessary, in a suit on the bond, to allege
the insolvency of the company.
Shelby, Adm., v. Bohn, 473.
2. Action.-Answer.-An answer in an action on a bond given to
secure the performance of a contract entered into by a gas com-
pany that after the breach of the bond the company was placed in
the hands of a receiver, who sold all its property and paid the
claims of the company in full and had ample funds in his hands to
pay plaintiff's claim, but plaintiff refused to present or file his claim
with the receiver, is insufficient, since plaintiff's right of action
was complete upon the breach of the contract, and it is not shown
that the company was solvent at such time.
Ib.
3. Action. Decedents' Estates. An answer in an action on a
bond that two of the makers died after the breach thereof, as
alleged in the complaint, and that their estates, which were solvent,
had been fully administered upon and finally settled, and that plain-
tiff neglected and failed to file any claims against said estates, ask-
ing that the proper share of each of said estates be deducted from
any amount found to be due because of the breach of the bond, was
insufficient, where it was not shown that such estates were admin-
istered upon in this State.
4. Action. - Pleading. — A contract with a city for certain side-
walk improvements provided that the work should be com-
pleted at a specified time. The bond given to secure the
performance of the contract stipulated that any extension by
the city of the time for the completion of the work should
in no way release the sureties on the bond. The work was not
completed within the time specified, but upon its completion it
was approved and accepted by the city. Held, in an action on the
bond by a material man for the value of materials furnished the
contractor at a time subsequent to the time named for the comple-
tion of the work, that it was not necessary for the complaint to
aver an extension of time by the city, and that there need be no
finding of such extension other than that the work had been com-
pleted under the contract and accepted.
Mankedick v. Consolidated Coal, etc., Co., 135.
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