An action to review a judgment on the theory of error of law committed by court in its finding and judgment cannot be sustained, in the absence of such objection and motion to modify in the action in which the judgment was rendered as would allow of review on appeal.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 647-651; Dec. Dig. § 335.*]

Appeal from Circuit Court, Jay County; Jno. F. La Follette, Judge.

lien held by said Minch for $1,121. The mortgage held by Hartnagle was foreclosed, the land ordered sold subject to the Minch lieu for $1,121, and the proceeds arising from such sale was ordered to be applied by the sheriff to the satisfaction: (1) Of the costs of the action; (2) to the extinguishment of the Hartnagle lien; and to the extinguishment of the other liens in the order of their priority as found by the court-the residue, if any, to be paid to the clerk of the court for Sarah Myer. It also appears that the Hartnagle suit was commenced April 5, 1905, judgment and decree thereon rendered April 24, 1905, and on April 25, 1905, a copy of said decree was issued by the clerk of said court to the sheriff of said county, who there

after, pursuant to said decree, sold said real

estate to one Dora A. Luttman appellee hereAction by Peter Myer, administrator, in for the sum of $1,675; and that said, sum against Joseph M. Minch and others. Judgwas by the sheriff distributed as ordered in ment for defendants. Plaintiff appeals. Afsaid decree; that the proceeds arising from firmed. said sale were insufficient to pay anything

Headington & Wheat, for appellant. Smith on the lien of Peter Myer or to Sarah Myer. & Moran, for appellees.

MYERS, C. J. On April 26, 1906, appellant commenced this action in the court below against the appellees, under section 645, Burns' Ann. St. 1908 (Acts 1881, p. 240), to review a judgment foreclosing a mortgage in favor of one George Hartnagle and against appellant's decedent and others, rendered in the Jay circuit court on April 24, 1905. The complaint was in one paragraph, to which a demurrer for want of facts was sustained, and judgment was rendered in favor of appellees. The sustaining of appellees' demurrer to the complaint is assigned as error.

It is claimed by the appellant that the court, in the Hartnagle suit, had no jurisdiction to try or determine the question as to the amount or nature of any lien in favor of the defendants therein, for the reason that no issue was formed authorizing such adjudication.

It cannot be said that the Jay circuit court did not have jurisdiction of the parties to that suit, nor that it was not a court of general jurisdiction, and, being a court of general jurisdiction, it is presumed to have jurisdiction of the subject-matter of the action (Roberts v. Leutzke, 39 Ind. App. 577, 78 N. E. 635), for "by jurisdiction of the subjectmatter is meant jurisdiction of the class of cases to which the particular case belongs" (Chicago, etc., R. Co. v. Sutton, 130 Ind. 405, 30 N. E. 291). Therefore, having concluded that the Jay circuit court had jurisdiction of the parties and of the subject-matter, it must be presumed that its acts and proceedings were regular, and that it had jurisdiction to render the particular judgment in question.

Appellant, in his complaint, has incorporated therein the complaint of Hartnagle to foreclose his mortgage, showing that Peter Myer, Sarah Myer, John Myer, Michael Myer, Joseph M. Minch, and Jacob F. Myer, Jr., were made defendants therein, and that each of said defendants, except Sarah and Michael Myer, were lienholders on the land covered by the mortgage in suit. The amount of the lienhold by each of said defendants and the Returning to the allegations of the comorder of their priority was alleged. It is al-plaint, it clearly appears that appellant sought so shown that each of said defendants an- to review the judgment and decree rendered swered the complaint in general denial. Sarah Myer, at that time a minor, answered in denial by a guardian ad litem. It is also shown that the issues thus formed were submitted to the Jay circuit court for trial, resulting in a finding fixing the amount and priority of the liens held by the plaintiff and each of the defendants against a certain tract of real estate theretofore owned by Jacob Myer, who was then deceased, but who prior to his death had conveyed said real estate to Sarah Myer, who was found to be the feesimple owner thereof. The mortgage lien of Hartnagle was found to be superior to all liens of the defendants except one mortgage

in the Hartnagle suit, upon the theory that an error of law was committed by the court in its finding and judgment. If it be true, as claimed, that the judgment gave one of the parties more than his pleading shows he was entitled to, such fact does not make the judgment void. Williams v. Manley, 33 Ind. App. 270, 273, 69 N. E. 469, and cases there cited. In the complaint before us it is not shown that any objection was made or exception reserved to any of the rulings of the court, in the case wherein the judgment was sought to be reviewed. This showing was necessary. The complaint was insufficient to withstand a demurrer for want of facts.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 91 N.E.-3

Appeal from Circuit Court, Jay County; Jno. F. La Follette, Judge.

Suit by Jonathan Holloway against James Boyce and others. Decree for complainant, and defendants appeal. Affirmed.

Claude C. Ball and Smith & Moran, for appellants. Orr & Orr, for appellee.

Goar v. Cravens, 57 Ind. 365. As said in the self a defense to the vendor's obligation to concase of Williams v. Manley, supra: "A pro- vey all the land which he contracted to sell. ceeding to review a judgment, for error of [Ed. Note.-For other cases, see Specific Perlaw appearing in the proceeding and judg-formance, Cent. Dig. §§ 140-151; Dec. Dig. § 49.*] ment, is in the nature of an appeal, and is to be tried by the record alone. Such a proceeding cannot be sustained unless the error be such as would reverse the judgment on an appeal." In Wabash R. Co. v. Young, 154 Ind. 24, 26, 55 N. E. 853, 854, it is said: "It is therefore essential to a complaint for review of a judgment for error of law that it specifically set forth the ruling of the court relied upon as error and the fact upon which such ruling is based (Findling v. Lewis, 148 Ind. 429 [47 N. E. 831]), and that the plaintiff, at the time of such ruling, excepted thereto (American Insurance Co. v. Gibson, 104 Ind. 336 [3 N. E. 892], and cases cited)." In Murphy v. Branaman, 156 Ind. 77, 59 N. E. 274, it was held: "That a proceeding to review a judgment is in the nature of an appeal, and that so much of the record in the case in which a review is sought must be set out in the complaint for review as will fully present the errors relied upon." In American Insurance Co. v. Gibson, supra, it was said: "It has uniformly been held that if no objection be made to the judgment, and no motion made to modify it in the trial court, no objection can be made available on appeal, nor in an action to review, however erroneous the judgment may be. This rule has been applied even where judgment was rendered by default." See, also, Hague v. First National Bank, 159 Ind. 636, 638, 65 N. E.

907.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

(45 Ind. A. 535)

BOYCE et al. v. HOLLOWAY. (No. 6,639.) (Appellate Court of Indiana, Division No. 1. March 11, 1910.)

1. SPECIFIC PERFORMANCE (§ 29*)-CONTRACT TO CONVEY LAND-DESCRIPTION.

Defendants were the owners of certain lands inclosed by a fence. The land had been platted, but the streets and alleys had not been improved, nor was there anything to indicate their location or the location of the lots when defendants offered to sell all the tract to plaintiff for $700, except a lot in the southwest corner and possibly two others in the southeast corner of the inclosure. The deed, however, so described the property as to omit at least 13 lots contained within the tract. Held, that the description of the land was sufficient to furnish a means of identification, the boundary being distinctly fixed by the fence, and was sufficient to entitle complainant to enforce specific performance.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 72-82; Dec. Dig. § 29.*]

2. SPECIFIC PERFORMANCE (§ 49*)-PRICE-INADEQUACY.

In a suit for specific performance of a contract for the sale of land, that the agreed price was less than the market value was not of it

MYERS, C. J. The appellee sued the appellants, James and Margaret Boyce, husband and wife, for specific performance of a contract for the sale and conveyance of certain real estate. A demurrer to the complaint for want of sufficient facts was overruled, and this ruling and the overruling of the appellants' motion for a new trial are assigned as errors.

From the complaint, in part, it appears: That the appellant James Boyce, on May 5, 1906, and for some time prior thereto, was and had been the owner of a certain tract of land in Jay county, Ind., which was inThat prior to said closed by a wire fence. date said tract had been platted into town lots, streets, and alleys, and was a part of what was designated on the plat book of said county as James Boyce's First and Second additions to the town of Redkey. That the streets and alleys had not been graded or improved, and there was nothing to indicate their location, or the location of the lots or the boundary of any lot, or to indicate that said tract of land had been platted into lots and streets and alleys, and the same was without any building or structure thereon. That on said May 5th the defendant James Boyce and the plaintiff, both of whom resided at Muncie, went to Redkey to view said premises and to negotiate for the purchase and sale thereof. That said defendant then pointed out to plaintiff said inclosure and the tract of land inclosed by and within said fence, and represented to plaintiff that he owned all the lots and lands thus inclosed, except lot 39 in the southwest corner, and except, possibly, two lots in the southeast corner of the inclosure which he had already given, sold, or conveyed away. That defendant then offered and proposed to sell and convey to the plaintiff, by good and sufficient deed of general warranty, except only all the taxes for the year of 1906, all the lots and lands then held and owned by him, lying and being within said inclosure, at and for the price of $700, which offer and proposal the plaintiff then accepted, and plaintiff then promised and agreed to pay the defendant said sum for the lands then held and owned by said James Boyce within said inclosure. On May 7, 1906, in pursuance of

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexe

said contract of purchase and sale, the de- [one lot and possibly two other lots; the lofendants made and executed to plaintiff a cation of the excepted lots being designated. proper deed of conveyance for all of said The vendee expressed his willingness to purlots within said inclosure in said Second ad- chase the remainder, leaving it to the vendor dition, but wrongfully and fraudulently, and to execute a deed by which he would convey The with fraudulent intent to cheat and defraud all he owned of the land pointed out. plaintiff, omitted from said deed a descrip- vendor received the full price agreed upon tion of all lots and tracts then owned by him and put the vendee in possession of all the in said First addition within said inclosure, land contemplated in the agreement, but and tendered said deed to the plaintiff in omitted a definite portion thereof from the fulfillment of their said contract. That deed. There is no uncertainty or indefiniteplaintiff, at the time, was entirely ignorant ness in the description of the land for the of the proper description and designation of conveyance of which this suit was brought, said tract and lots and the location of said the transfer of which was within the meanstreets and alleys, never having seen any plating and terms of the contract. thereof, and relying wholly upon the knowl- The description of the land in the contract edge of the defendants to fully and properly describe said lots and lands within said inclosure, as aforesaid, and believing said deed properly described and conveyed the same, accepted said deed and paid defendants said $700, and had said deed recorded. That the defendant, in pursuance of said contract, put plaintiff in the full possession of the land so inclosed. On May 11, 1906, plaintiff, for the first time, learned that said deed did not convey all of said tract, as aforesaid contracted, purchased, and paid for by him, and that the lots and parts of lots in said First addition to said town were omitted from said deed, and he at once made known that fact to the defendants and demanded of them that they execute to him the proper deed of conveyance for said omitted lots and parts of said inclosure, and that they comply with and perform their said contract on their part, and which they wrongfully and fraudulently refused, and still fail and refuse, to do, to plaintiff's damage, irreparable loss, and injury. It is then alleged that James Boyce represented Margaret Boyce, his wife, and in the execution of said contract acted for and in her behalf, and as her agent, with full authority so to do, and that his acts and representations in the premises were done with her knowledge and consent, and accepted and ratified by her; that plaintiff has fully performed all of the conditions of said contract on his part to be performed; and that no equities or rights of third parties have intervened.

was sufficient to furnish the means of identification. While it may be incomplete, yet its completion does not require the contradiction or alteration of that given. The boundary of the land was distinctly fixed by the fence which surrounded it. The contract was for the sale and conveyance of all the land appellant owned within the boundary fixed by the fence, with the exception of certain lots, the location of which was pointed out, providing the vendor should ascertain that they had been conveyed by him to othThe agreement left the excepted lots to be determined by the appellants. This they assumed to do honestly and correctly and to execute a deed in accordance with the terms of the contract. It is immaterial whether there was fraudulent intent on the part of the vendor on May 5th or in the execution of the deed May 7th. It is sufficient that it would be a fraud on the part of the vendors not to fulfill their agreement; it being within their power to do so according to its terms.

ers.

In Lingeman v. Shirk, 15 Ind. App. 432, 43 N. E. 33, the court say: "Such a contract, where the lands are to be thus selected by one party, is a valid and enforceable contract, upon the ground that, although the lands are not specifically described, there is a definite mode of ascertaining them prescribed in the contract, and, thus, that which would otherwise be uncertain may be made certain." See, also, Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 255; Lessie v. Merrick, 99 Ind. 180; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345; Howard v. Adkins, 167 Ind. 184, 78 N. E. 665; Maris v. Masters, 31 Ind. App. 235, 240, 67 N. E. 699. The complaint was sufficient.

Appellants assert that the contract recited in the complaint was "too indefinite upon which to predicate an action for specific performance," because, when the vendor pointed out the inclosed field subdivided into town Under the assignment relating to the molots, he stated he had sold one lot in the tion for a new trial, it is claimed on behalf southwest corner of the inclosure and pos- of the appellants that the evidence showed sibly two lots in the southeast corner. The that the land conveyed by deed of the appelcontract made May 5, 1906, was for the sale lants was worth the price paid by the appeland conveyance of all that portion of the in-lee, and that, therefore, the charge of fraud closed land owned by the vendor. The deed was not supported. The evidence concerning of conveyance delivered May 7, 1906, omitted 13 lots and possibly 2 other lots then owned by the vendor in the inclosure. The offer to pay a certain price was based upon the representation of ownership of all the field except

the valuation of the land conveyed was indefinite, but, if it had been sufficient for the court to determine that the price agreed upon was less than the market value, this fact alone would not uphold the appellants in

their refusal to convey all the land embraced /ed States Cement Company v. Cooper (Sup.) in the contract and possession of which was 88 N. E. 69; Barnett v. Bryce Furnace Comdelivered thereunder. Hamilton v. Hamilton, pany, 157 Ind. 572, 62 N. E. 6; Klein v. Nu162 Ind. 430, 70 N. E. 535. Where land is the gent Gravel Road Company, 162 Ind. 509, subject of a contract of sale, jurisdiction to 70 N. E. 801; C. C. C., etc., Company v. Van award specific performance is well establish- Natta, 88 N. E. 716. In the case last cited, ed, and mere inadequacy of price is not of the question here involved is fully discussed itself a defense, but is objectionable only so and determined. As is there said in the affar as it furnishes satisfactory evidence of firmance of a case, the law does not require fraud as a fact. Pomeroy, Contracts, § 192 et us to write any opinion whatever, and, as seq. between the litigants, our decisions are final, unless, in the interest of the public, they should be set aside.

We have re-examined the instructions re

Upon the evidence before us, the court might well conclude that the appellants were seeking to defraud the appellee, and would do so without the interposition of the equi-ferred to, and it seems so clear that no availtable remedy. The record discloses abundant able error is presented thereon that we can evidence in support of the decision of the see no useful purpose in setting them out or trial court. discussing them.

The purpose of the transfer act is to maintain uniformity of decision for the benefit of the public, and whatever additional rights are granted to the litigant are incidental.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 220.*]

2. COURTS (§ 220*) — TRANSFER OF CAUSES OPINIONS.

ments, the transcript of the proceedings of the On appeal from an assessment for improvecommon council, which the city clerk is required to file on taking an appeal by a property owner to the circuit court, constitutes the complaint. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1260; Dec. Dig. §

IMPROVEMENTS-OPENING BIDS-RECORD.

Where a judgment was affirmed by the Ap-551.*] pellate Court, and the instructions were approv ed without setting them out in the opinion, the 2. MUNICIPAL CORPORATIONS (§ 335*)-STREET court would not, on a petition for rehearing, revise its opinion and set them out so as to enable the party objecting to review the instructions on a transfer of the cause to the Supreme Court, since under the transfer act no opinion need be written at all on aflirmance of the judgment. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 220.*]

On petition for rehearing. Denied.
For former opinion, see 90 N. E. 29.

Where the street committee of a common council met at the proper time, and opened bids for certain improvements, and took them under advisement until finally acted on, and no bids were received after the date specified, that the council made no record of such acts would not invalidate their subsequent proceedings.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 860, 861, 863; Dec. Dig. § 335.*]

3. MUNICIPAL CORPORATIONS (§ 484*) — PreSUMPTIONS FAVORING ASSESSMENT-CON

TRACTS-BIDS-ACTS OF OFFICERS.

Since a city council is a public statutory board, and the law presumes that it did its duty, where a street committee reported that certain bids for an improvement had been open

tigation and advisement, it would be presumed, were properly received and opened, especially in support of a special assessment, that the bids where it did not appear that the substantial rights of the complaining party had been af

HADLEY, J. Appellant has very earnestly, but courteously, insisted that this court should grant a rehearing and write another opinion, setting out the instructions which were considered and passed upon without giv-ed at a former date, and had been under invesing any extended discussion in support of our reasons for our decision thereon. Appellant claims this as a right, on the theory that it is entitled to have the questions on these instructions reviewed by the Supreme Court, on a petition to transfer. In this, however, appellant is laboring under a misconstruction of the transfer act. It has been repeatedly held by this court and the Supreme Court that the purpose of that act was to maintain uniformity of decisions for the benefit of the public, and whatever additional rights are granted to the litigant were incidental. Unit

fected.

Corporations, Cent. Dig. 88 1137-1139; Dec. [Ed. Note. For other cases, see Municipal Dig. § 484.*]

4. MUNICIPAL CORPORATIONS (§ 556*)—STREET

IMPROVEMENTS -ENFORCEMENT OF ASSESS-
MENT SCOPE OF INQUIRY.

On appeal from an assessment, the court could consider that no complaint was made, that the work was not properly done, that the cost was in excess of the benefits, that the bene

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexom

[Ed. Note.-For other cases, see Municipal Corporations, Cent: Dig. § 1264; Dec. Dig. 8 556.*]

fits assessed were in excess of the benefits re-appeal within 20 days from the final order ceived, or that defendant did not have full no- fixing the assessments. It does not appear tice of the work from its inception to its com- that the appeal was taken within that time, pletion, and, having such notice, made no protest until the work was finally completed and but no motion was made to dismiss the appeal the assessment fixed. below, and no question presented thereon here. Upon the approval of the appeal bond the city clerk filed a transcript of the proceedings of the common council, as heretofore set out, in the office of the clerk of the circuit court of Cass county. Appellee demurred to the transcript for want of facts, which demurrer was sustained, and judgment was rendered against the appellant.

Appeal from Circuit Court, Cass County. Proceedings by the City of Logansport, for the levy of an assessment for paving of an alley, against Weldon Webster. From a judgment sustaining defendant's demurrer to the transcript for want of facts, the city appeals. Reversed, with instructions.

Geo. W. Funk, for appellant. McConnell, Jenkins, Jenkins & Stuart, for appellee.

HADLEY, J. This is an appeal from the final assessment of benefits to improve an alley in the city of Logansport, under the act of the Legislature of 1901, known as the "Artman Law." See Acts 1901, p. 534.

In cases of this character, the transcript of the proceedings of the common council is treated as in the nature of a complaint. Taber v. Ferguson, 109 Ind. 230, 9 N. E. 723; Phillips v. Jollisaint, 7 Ind. App. 458, 34 N. E. 653, 847; Reeves v. Grottendick, 131 Ind. 107, 30 N. E. 889. The only objection urged against the transcript is that it does not show that the bids were received within the time fixed in the notice, or that the council met at the time specified to receive and open them. Section 1 of the act provides: "The common council shall open the bids upon the date fixed, and award the contract to the best bidder therefor; provided that such common council may take such bids under advisement, and shall have the power to reject any and all bids." In the very nature of things, the usual rules for the construction of complaints should not apply with strictness in cases like this. Here we have no one in interest filing a complaint. The real party whose interests are affected is the contractor, and yet the defect, if defect it is, accrued before the contract was let to him, and before he had any interest. Furthermore, only the recorded acts of the council are presented. The law does not require that a record be made of the meeting of the council at the opening of the bids, and if, in fact, it did meet at the time specified, and open the bids, and took them under advisement until final.

The transcript of the proceedings of the common council, which forms the basis of the appeal, shows that on June 1, 1904, the common council of the city of Logansport, by more than a two-thirds vote, passed a declaratory resolution for the improvement of a certain alley in said city, and authorized the city clerk to advertise for bids to be received for said work, up to 4 o'clock p. m. June 25th. The clerk gave the prescribed notice, and on July 6th, at a regular meeting of said council, the street committee of said council presented two bids for the work, together with their report thereon, as follows: "Your street committee, after opening and examining the bids for the improvement of the alley between Wright and Usher streets and Fifteenth and Sixteenth streets, would recommend that the contract for the improvement of the said alley be awarded to Jerry Kerns, he being the lowest bidder, and we further recommend that the mayor and clerk enter into a contract with the city attorney, in ac-ly acted upon, and no bids were received aft cordance with the bid." The record then shows the adoption of the report, and the acceptance of the bid of Jerry Kerns, and the execution of the contract with him for the construction of the improvement. The record also shows the completion of the work and its acceptance, and all further hearings, In the case last cited, the court say: "The notices, and proceedings, as required by said paragraphs of answer were not objectionable act, to have been fully and legally had and by reason of the fact that copies of the properformed. The final order of the common ceedings and actions of the common council, council confirming and fixing the assessment therein referred to, were not filed therewith was made on November 21, 1904. On Decem- as exhibits. The minutes of the common ber 21, 1904, appellee presented his bond for council are only evidences of their proceedan appeal to the circuit court, which bond ings and actions; but, if no minutes or rec was approved. The record does not show ord of the acts of the common council have that appellee took any steps towards taking been kept, these facts may be proved by parol an appeal until said December 21st. The evidence like any other facts. The old docappeal was sought to be taken under section trine that the acts of a corporation could be 5 of said act, being section 3623e, Burns' proved only by the record of its proceedings Ann. St. 1901. This section authorizes an has ceased to be the law; and the rule is For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

er that date, the mere fact that they made no record of such acts would not invalidate their subsequent proceedings. Ross v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361; School, etc., v. Gebhart, 61 Ind. 187; State ex rel. v. Hauser, 63 Ind. 155.