(128 N.E.) The Appellate Court is bound by a finding that the relation of master and servant existed between decedent and defendant, notwithstanding a contrary inference equally reasonable might have been drawn from the evidence. Appeal from Circuit Court, Wayne Coun Rehearing de "It would seem that when the Legislature 2. APPEAL and Error 996-REVIEW-SUFused the words 'sell,' 'give away,' 'dispose of,' FICIENCY OF EVIDENCE. 'exchange,' and 'barter,' practically every imaginable method of an Indian acquiring intoxicating liquor was described. If the allegations of this information are true, then the defendant was the direct voluntary instrument of the disposition of the liquor to the Indian. Even assuming that the defendant was the mere agent of the Indian, and that the person from whom ty; H. C. Fox, Judge. he purchased the liquor with the Indian's money had knowledge of the purpose of the pur- On motion for rehearing. chase, yet the defendant acquired possession | nied. and control over the liquor, and this possession and control he transferred to the Indian. Surely by that act he disposed of the liquor. True, he did not 'sell' or 'give away' the liquor; but the very fact that the Legislature used the words 'disposed of' in addition to 'sell' and 'give away' shows the intent of the Legislature to include every possible subterfuge by which an Indian might acquire liquor through the voluntary act of another." The same rule has been applied to the construction of statutes relating to dry territory, where the acts forbidden by the statutes included the furnishing or otherwise disposing of intoxicating liquor. State v. Hassett, 64 Vt. 46, 23 Atl. 584; People v. Lapham (1910) 162 Mich. 394, 127 N. W. 366. Conceding that the title to the portion of the liquor for the son-in-law was in him from the time it was purchased and came into the hands of appellant, it cannot be asserted that it had ever been in his possession or control. The purpose of the statute, as heretofore stated, was to protect the health and morals of the inhabitants of the state by keeping intoxicating liquors out of their possession and beyond their control. If appellant had delivered the liquor in accordance with his declared purpose, he would have been the active means by and through which the liquor in question would have been placed in the custody and control of persons whom the statute was enacted to protect. In the opinion of the court, the evidence is sufficient to sustain the verdict, and the verdict is not contrary to law. For former opinion, see 121 N. E. 329. S. D. Miller, F. C. Dailey, and W. H. Thompson, all of Indianapolis, Gath Freeman, of Richmond, and C. C. Shirley, of Kokomo, for appellant. C. E. Shiveley, Ray K. Shiveley, and Joshua H. Allen, all of Richmond, for appellee. BATMAN, C. J. Appellant, in a very able brief on its petition for a rehearing, has pointed out wherein it believes the court erred in its original opinion; but, after a careful consideration of such petition, we are forced to adhere to the conclusion already announced. However, in view of appellant's earnest contention that there is no evidence to sustain the essential finding that the relation of master and servant existed between it and the decedent, at the time he was engaged in making the repairs on its gasoline tank, we call attention to the fact that there is evidence in the record which tends to establish the following: That Jacob Kern was running a small boiler repair shop in Richmond, Ind.; that he employed a few men to assist him in his work, but did not contract; that he could not do all the work that came to him, and he would, at times, furnish men to those who wanted repairs made; that he would render bills for such work, and pay his men therefor, reserving a small portion of the amount received as his compensation; that, on the occasion in question, word was received at his shop that appellant desired some repairs made, and he sent the decedent, who had been working for In view of the evidence the instruction complained of was not prejudicial to ap-him for several years, to see what was to be pellant's rights. Judgment affirmed. done; that the decedent called at appellant's place of business, and, after ascertaining the nature of the repairs desired, returned to Kern's shop for the purpose of obtaining tools with which to do the work and some one to assist him therein; that the decedent and STANDARD OIL CO. OF INDIANA . AL-one Graham, who was also an employé of LEN. (No. 9619.) said Kern, then took certain tools and went (Appellate Court of Indiana, Division No. 1. to appellant's place of business to make said June 19, 1919.) 1. MASTER AND SERVANT 277-INJURIES TO SERVANT-EVIDENCE-EXISTENCE AND RE LATION. A finding that the relation of master and servant existed between defendant and decedent held warranted by the evidence. repairs; that, after making an examination For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes manner; that the decedent then went on the inside of said tank, and on coming out reported that there was still a quantity of gasoline in the same; that appellant's superintendent thereupon directed the decedent and said Graham to drill holes in the bottom of the tank in order that the gasoline might be drawn out before the work proceeded; that, prior to the time the decedent entered the tank, appellant's superintendent procured an electric light globe, attached it to the end of an extension cord, and assisted in connecting it with the electric wiring on the premises, in order that the decedent might carry the lighted globe with him into the tank; that, at the time the decedent first entered the tank, one Ball, an employé of appellant, got on top of the tank, and appellant's said superintendent handed the electric light globe up to him, and said Ball then passed it on to the decedent, after he had entered, or was about to enter, the tank; that, after the gasoline had been drained from the same, the dece-aided in making preparations therefor. These dent re-entered the tank, and the electric light globe was passed to him, by appellant's said superintendent and the said Ball, in the same manner; that, before the decedent entered the tank the last time, appellant's said superintendent handed a line up to said Ball, who was on the top of said tank, and who placed one end thereof around the decedent's body, and held the other end on the outside as a matter of precaution, on account of the attendant danger in entering the tank from which gasoline had been recently drawn. jury, in determining the question under consideration, was not limited to a consideration of the conversations between appellant's superintendent and the men engaged in making the repairs, but was authorized to consider all the attendant circumstances among which we note that no definite arrangements were made with Jacob Kern regarding the manner in which the repairs were to be made; that he did not visit the scene of the work to ascertain what was to be done, or how it could be performed; that he did not plan the work, or give any directions as to how it should be done; that he was not present at any time. during its progress, and assumed no personal control over the same; that the decision, as to how the repairs should be accomplished, was made by appellant's superintendent, and the direction to proceed with the work, in accordance with such determination, was given by him; that, in addition to this, he was present during the progress of the work, and facts are not cited as conclusive on the question under consideration, but merely as circumstances which the jury had a right to weigh, along with other evidence, in reaching its conclusion in that regard. In so doing it was not only the province of the jury to consider all the facts and circumstances in evidence attending the work, but to draw all reasonable inference therefrom. [2] The jury, after considering such facts and circumstances, has drawn the inference that the decedent was the servant of appellant, while making said repairs, and, as we are unable to say that such an inference is an unreasonable one, it is binding on this court, although a contrary inference, equally as reasonable, might have been drawn therefrom. This rule is too well settled to require authorities, but to those cited in the original opinion we add the following: Bright Nat. Bank v. Hartman (1915) 61 Ind. App. 440, Appellant cites the brevity of the conversations between its superintendent, and the men engaged in making the repairs, and the meagerness of the directions given them by its superintendent with reference thereto. It lays stress on these facts in its contention that the relation of master and servant did not exist between it and the decedent in the performance of the work in question. While it was proper for the jury to consider the ex- | 109 N. E. 846; Louisville, etc., R. Co. v. Westtent of such conversations, and the scope of ern Union Tel. Co. (1915) 184 Ind. 531, 11 N. such directions, as circumstances bearing on E. 802, Ann. Cas. 1917C, 628. the question under consideration, they were by no means conclusive. It will be noted that the repairs to be made were neither large nor complicated, and evidently did not require extended conversations, or elaborate directions, in order to exercise control over the men with reference to the work, while it was in progress. [1] It should be borne in mind that the When the rules governing appeals are applied to the facts and circumstances which the evidence in this case tends to establish, we cannot say that the verdict of the jury is not sustained by sufficient evidence or is contrary to law. Other contentions made by appellant are fully covered by the original opinion. The petition for a rehearing is overruled. to the law and the easement of the public removed therefrom. The situation is better understood by reference to the following plat: 76.5 FT. 76.5 FT. COLLEGE AVE. 2134 FT. WIDE. 76.5 FT. 102.4% FT. 6 3 2 102.42 FT. S.W.COR. LOT 19. Thereafter, to wit; on August 9, 1912, the said appellee Ida Cullen Boyd commenced suit in the Putnam circuit court against the appellants to foreclose said mortgage. A change of venue was taken from the regular judge of said court, and Hon. John H. James was appointed and duly qualified to try sald cause, and upon the trial thereof entered a 4. MORTGAGES 544(3) — ASSISTANCE, WRIT judgment and decree in favor of said Ida CulOF JURISDICTION-SPECIAL JUDGE. The powers of a special judge in a foreclosure proceeding extend to the grant of a writ of assistance to place plaintiffs in possession after sale. len Boyd and against the appellants, forclosing said mortgage. The sheriff sold said land by virtue of the authority of a certified copy of the foreclosure judgment and decree, and the said appellee 5. MORTGAGES 544(3) — ASSISTANCE, WRIT Ida Cullen Boyd purchased the same at such OF CROSS-COMPLAINT-PROPRIETY. In a summary proceeding for a writ of assistance to place mortgage foreclosure purchasers in possession, it was not error to refuse to permit mortgagors to contest title by cross-complaint. sale and took a certificate of sale therefor, which the said appellee afterward sold and assigned to the appellee Jackson Boyd; after the expiration of the year for redemption, said land not having been redeemed, the said appellee Jackson Boyd received from the sheriff of Putnam county a deed therefor, said Appeal from Circuit Court, Putnam Coun- land being described in said proceeding and ty; John H. James, Special Judge. Proceeding by Ida Cullen Boyd and another against Daniel C. Brackney and another for a writ of assistance. Judgment for petitioner, and defendants appeal. Affirmed. Thomas A. Moore and Fay S. Hamilton, both of Greencastle, for appellants. Jackson Boyd and Lyon & Peck, all of Greencastle, for appellees. in said deed by the lot numbers as originally in the mortgage. Thereafter, when said appellee Jackson Boyd went to take possession of said lots, or such part of the same as he had not sold, appellants refused, upon notice and demand, to lee then filed his petition before Hon. John H. surrender possession thereof, and said appelJames, special judge as aforesaid, to redocket said cause and for a writ of assistance, afterwards filing an amended petition, describing said land therein by its lot numbers, and also describing it by metes and bounds, commencing at the southwest corner of lot No. 19 in trustee's plat, which point can be located by reference to the plat above. This description included the streets and alleys upon which said lots abutted, and which are involved in this action. NICHOLS, P. J. The appellants were the owners of lots Nos. 1 to 6, inclusive, Higert's subdivision in the city of Greencastle, Ind., and executed their mortgage thereon to the appellee Ida Cullen Boyd. After the making of said mortgage the said Higert's subdivision, including said lots, and streets and alleys abutting them, was duly vacated according The petition prays for a writ of assistance, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied 125.N. E. 238. directing the sheriff to remove the appellants from said real estate and put the appellee in possession thereof. Appellants appeared specially and objected to Hon. John H. James sitting or acting as the judge in said cause, he being the special judge sitting at the foreclosure proceeding in said cause. This objection was overruled by the court, to which ruling appellants excepted. Appellants filed a demurrer to the amended petition, which was overruled, to which ruling the appellants excepted. Appellants filed an answer in three paragraphs to the amended petition, the first paragraph being a general denial. Appellee petitioner (hereinafter called petitioner) filed his demurrer to the second paragraph of answer, which was sustained by the court, to which ruling appellants excepted. Petitioner filed his motion to strike out appellants' third paragraph of answer and cross-complaint, which motion was sustained by the court, to which ruling the appellants excepted. Under appellants' second point, they complain that the court erred in overruling appellant's motion to quash the notice and demand, and under their third point they complain of error of the court in overruling their motion to require the petitioner to make his petition more specific by setting out a copy of the decree of foreclosure, a copy of the assignment of the certificate of purchase, showing the description of the real estate therein, and the deed from the sheriff or copy thereof. By these motions appellants undertake to show that the description of the land in the petition for a writ of assistance is not the same as in the papers and record of the original proceeding. But the petition gives the description of the land both by metes and bounds and by lot numbers, identifying the two descriptions as of the same land, and, though appellants fail to discuss their motion for a new trial, we may add that the evidence which was properly admitted fully identifies the two descriptions as of the same land. Under these points appellants challenge petitioner's right to the possession of the parts of the vacated street and alleys upon which said lots abutted before said addition was vacated, appellants claiming still to own such vacated streets and alleys, and contending that a writ of assistance can only issue when the right to possession is clear, and that in such a summary proceeding there can be no trial of any bona fide question as to the right of possession. The petition was submitted to the court for hearing, and evidence was heard, for the purpose of identifying the said lots as the same real estate that was described by metes and bounds in said petition. To this evidence appellants objected, and excepted to the court's ruling in admitting it. There was a judgment that the petitioner was entitled to immediate possession of said real estate, describing the same, both by lot numbers and by metes and bounds, and that the appellants be ejected and dispossessed, and that a writ of assistance be issued by the clerk of the court to the sheriff, directing him to eject and dis-ance of a lot in a town or city designated by possess appellants from said real estate, and to place the petitioner in the immediate possession thereof. After motion for a new trial, which was overruled, this appeal is prose cuted. Appellants have assigned 14 errors upon which they rely for reversal, one of which is overruling their motion for a new trial, in which motion 10 errors are specified. Of these alleged errors we need only to discuss such as are contained under Appellants' Points and Authorities, as all others are waived. These in their order: [1] Appellants contend that said petition is not sufficient to withstand their demurrer, for the reason that it fails to set out the sheriff's deed to appellee, or a copy of the notice to appellants that application for the writ of assistance is being made. But this is not an action based upon said deed or notice, or any other written instrument. This is a summary proceeding for a writ of assistance to obtain the possession of real estate wrongfully withheld from petitioner by appellants, after their title thereto has been divested in a foreclosure proceeding, this proceeding being supplemental to and a part of the foreclosure proceeding, and to give full effect thereto. Emerick v. Miller, 159 Ind. 317, 64 N. E. 28. [2] But in this case there is no bona fide question as to the right of possession. It is the settled law of this state that a convey its number or other proper description, and abutting on a street or alley, carries with it the fee to the center of the street. Cox v. L. N. A. & C. Ry. Co., 48 Ind. 178; City of Logansport v. Shirk, 88 Ind. 563, 569; T. H. & S. R. R. Co., v. Rodel, 89 Ind. 128, 132, 46 Am. Rep. 164; Bergan v. Co-operative Ice Co., 41 Ind. App. 647, 84 N. E. 833; Western Union Telegraph Co. v. Krueger, 36 Ind. App. 348, 74 N. E. 25; Irvin v. Crammond, 58 Ind. App. 540, 108 N. E. 539. [3] Of course the same rule applies to a mortgage and to a deed by the sheriff to a purchaser at the sale upon foreclosure of such mortgage. This conclusion makes it unnecessary for us to discuss appellants' fifth and seventh points, as they each involve the same principles of law as control in disposing of appellants' second and third points. [4] Under their fourth point, appellants complain that the court erred in assuming jurisdiction of said petition, over the objection of the appellants, for the reason that the powers of a special judge cease after final judgment has been rendered. But the case of Emerick v. Miller, supra, which appellants have cited more than once in their brief, and which is a well-considered case, and which gives no comfort to appellants on any prop (123 N.E.) osition involved in this case, is a strong! Suit by the United Brethren Publishing authority against them on this point. The Establishment against Abner H. Shaffer, case was one in which a special judge was Auditor of Huntington County, and others, to acting, and on its appeal the Supreme Court enjoin the placing of plaintiff's real estate asks, "Can there be any reason why the same and personal property, endowment and intercourt, in the same case, should not effectuate est, on the tax duplicates of the county and its decree by requiring the debtor to surren- the collection of taxes thereon. Judgment der that which the court had adjudged he for defendants, and plaintiff appeals. Afshould surrender?" and then, after discussion, firmed. answers the question by quoting the rule announced by Chancellor Kent, "that the power to apply the remedy is coextensive with the jurisdiction over the subject-matter," then saying that the rule is unassailable in reason. Putting the purchaser in possession is only an incident in the full enforcement of the court's decree. Gilliland v. Milligan, 144 Ind. 154, 42 N. E. 1010. [5] Under their sixth point, appellants complain of error in sustaining petitioner's motion to strike out appellants' cross-complaint. By this cross-complaint appellants sought to quiet the title to the real estate involved. This is a summary proceeding, and, had the court permitted the appellants to contest the title by their cross-complaint, he would have permitted a departure from the theory upon which the application rested. The court properly struck the cross-complaint out, on motion. Roach v. Clark, 150 Ind. 93, 48 N. E. 796, 65 Am. St. Rep. 353. We have examined all the questions presented, and find no error in the proceeding. The judgment is affirmed. (74 Ind. App. 178) UNITED BRETHREN PUBLISHING ES- S. M. Sayler, of Huntington, for appellant. Claude Cline and Milo Feightner, both of Huntington, for appellees. NICHOLS, P. J. The appellant filed its complaint against appellees in the Huntington circuit court, the substantial averments of which are that the appellant is a religious and charitable institution and a part of the Church of the United Brethren of Christ, and for the more complete prosecution of its purposes has been incorporated under the laws of the state of Indiana, as a corporation without stockholders, and no capital stock has been issued or provided for by the articles of incorporation thereof, but it has been solely incorporated as a part of the said Church. The appellant, through its othcers and trustees, is under the direct control of the General Conference of the said church, and its officers and trustees are required to report to the General Conference of the said church, It has been clothed with powers to make bylaws, so long as the same shall not conflict with the provisions of the charter of the appellant, nor with the rules of the church. The appellant is engaged in the publishing of a church paper, called "Christian Servitor," and numerous Sunday school papers and literature used in the Sunday schools of said church, through its publications furnishing a means of communication between the members of the said church in its religious (Appellate Court of Indiana, Division No. 2. work. June 20, 1919.) 1. TAXATION —204(2) — EXEMPTIONS STAT UTES-CONSTRUCTION. Burns' Ann. St. 1914, §§ 10144, 10145, exempting charitable organizations from taxation upon their real or personal property, are to be strictly construed. The proceeds of the appellant, over and above contingent expenses, are applied to the benefit of traveling and worn-out preachers and their widows and orphans, the distribution of any available profits of the publishing establishment for this purpose to be, in proportion to the number of regular ministers in each annual conference who are itinerants, 2. TAXATION 241(1)—EXEMPTIONS "CHAR- according to the "Itinerant plan" of the DisITABLE ORGANIZATION"-CHURCH PUBLISH- cipline. It is the duty of the secretary of the ING HOUSE GIVING NET PROCEEDS TO CHAR-annual conference each year to report to the ITY. Although a church publishing establishment applied all the net proceeds of its business of publishing church and Sunday school papers to the charitable purpose of aiding traveling and worn-out preachers, the establishment was not a charitable institution within the meaning of Burns' Ann. St. 1914, §§ 10144, 10145, exempting charitable organizations from taxation. Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge. publishing agent the true number of such itinerants as found on the records of the several conferences; also, the name and address of the conference treasurer appointed to receive dividends awarded to his conference. The trustees and officers of the appellant have no power to divert the proceeds from the above-mentioned purpose, and the distribution of such proceeds as provided by the articles of incorporation and the rules and discipline of said church constitute a reli For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests an Indexes |