273. Making new parties.

Persons who are not parties to proceedings to construct a levee but who will be affected thereby may be made parties to such proceedings. Northern Indiana Land Co. v. Brown, 182 Ind. 438, 106 N. E. 706.

A defendant to an action can not have a person made a party to the action for the purpose of litigating matters between such defendant and such person, when such person is not a necessary party to the action. Aetna Indemnity Co. v. Wassall Clay Co., 49 App. 438, 97 N. E. 562.

Courts have a discretion as to admitting persons to intervene in actions when such persons are not necessary parties to such actions, and delay in making applications to intervene may be good cause for denying the application. Forsyth v. American Maize etc. Co., 59 App. 634, 108 N. E. 622; Pottlitzer v. Citizens' Trust Co., 60 App. 45, 108 N. E. 36.

Under this section it was held proper for the court to grant a railroad company's application to become a party, where it appeared, on the trial of the suit to quiet title, that defendant had conveyed the property to the railroad company. Knotts v. Tuxbury, App. -9 117 N. E. 282.

277. Assignor when defendant-Rule as to set-off, etc.

When the assignor of a claim is made a defendant and he answers that he has no interest in the claim, another defendant can not have the question of suretyship between him and such assignor litigated. Clements v. Vanausdall, 180 Ind. 490, 103 N. E. 343.

Failure to make proper parties as required by this section is waived by failure to demur, the defect appearing on the face of the complaint. Spencer v. McCune, App. 126 N. E. 30.

278. New party, how brought in by defendant.

A stockholder is not entitled to be made a party to a receivership proceeding, in the absence of a showing of refusal of the receiver to protect and preserve the assets of the corporation for the benefit of persons entitled thereto, or some showing of fraud or collusion on the part of the receiver. Marcovich v. O'Brien, 63 App. 101, 114 N. E. 100.

SEC.

ARTICLE 3.-JOINDER OF CAUSES OF ACTION.

279. What causes of action joined.

279. What causes of action joined.

The misjoinder of causes of action is not of itself ground for reversing a judgment, but it is improper to join an action upon a contract with an action for a tort and where one of the defendants is only liable in tort. Miami County Bank v. State ex rel., 61 App. 360, 112 N. E. 389.

An action for tort and an action on contract can not be joined in the same proceeding. Miami County Bank v. State, 61 App. 360, 112 N. E. 40.

Under this section an employe suing for personal injuries can not amend his complaint so as to allege a cause of action for damages because of fraud in inducing him to release his claim for personal injuries, since the amended complaint can not be extended to a new cause of action. Bailey v. Indianapolis Abattoir Co., App. -, 118 N. E. 374.

If a person having the right to contest a will dies, the cause of action survives to his heirs. Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177.

If a judgment is rendered for the defendant in an action for personal injuries and the plaintiff appeals, the appeal will be abated if he dies before the appeal is heard. Hudson v. Indiana Union etc. Co., 50 App. 292, 98 N. E. 188.

A cause of action for personal injuries is merged in favorable verdict and the court may on proper showing enter judgment nunc pro tunc as of a date prior to the death. Craft v. Stone, App., 124 N. E. 473.

285.

Action for death of another-Limitation.

An action brought to recover damages for the death of a husband would not abate on the remarriage of the widow although she would be the sole beneficiary. Wabash R. Co. v. Gretzinger, 182 Ind. 155, 104 N. E. 69.

The administrator of the estate of an illegitimate child may sue to recover damages for the benefit of his mother and her legitimate children when the death of such child is caused by a wrongful act. Dickason Coal Co. v. Liddil, 49 App. 40, 94 N. E. 411.

An action to recover damages for the death of a person may be brought within two years after such person dies, although the claim of such person for damages arising out of the injury causing the death was barred by the statute of limitation when he died. German-American etc. Co. v. Lafayette Box etc. Co., 52 App. 211, 98 N. E. 874.

If a person who is injured sues and recovers damages for the injury, an action can not be maintained after his death to recover damages because his death resulted from such injuries. Golding v. Town of Knox, 56 App. 149, 104 N. E. 978. An administrator may be appointed to sue to recover damages for the death of a person although such person left no tangible assets. Mesker v. Bishop, 56 App. 455, 103 N. E. 492, 105 N. E. 644.

The administrator of the estate of a married woman may sue to recover damages because of her death for the benefit of her husband, although she did not leave children or next of kin surviving. Chicago etc. R. Co. v. Biddinger, 61 App. 419, 113 N. E. 1027.

Damages that may be recovered because of the death of a person are not a part of the assets of the estate of such person, but inure to the exclusive benefit of the widow and children, or next of kin. Grancik v. Rajcany, 54 App. 274, 101 N. E. 745.

In an administrator's action under this section for wrongful death, the court has no power to adjudge that the costs be paid from the deceased's estate on failure of plaintiff to recover. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. —, 115 N. E. 603.

It is not necessary under this section for plaintiff to allege or prove the absence of contributory negligence of the deceased, since that is a matter of defense as

-

provided by § 362. Smith v. Cleveland, C. C. & St. L. Ry. Co., App.

115 N. E. 603.

Under this section proof of the non-existence of grandchildren or other next of kin of the deceased is not necessary to recovery by the administratrix. Smith v. Cleveland, C. C. & St. L. Ry Co., App. 115 N. E. 603.

In an action under this section, distribution of the damages recovered is not limited to persons named or proved, but may be made to persons actually entitled thereto under the statute, even to the exclusion of persons named or proved. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 115 N. E. 603.

In an action under this section, where the next of kin are named and proved, who are not entitled as beneficiaries within the meaning of this section, the existence of real beneficiaries and the amount of damages sustained by them was held a proper matter of defense. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 115 N. E. 603.

In an action under this section, the identity of the beneficiaries is important only in determining the amount of damages. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 115 N. E. 603.

In an action under this section by administrator for wrongful death, the widow and children of the deceased and next of kin are not parties. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 115 N. E. 603.

Failure to name in the complaint the persons entitled to share in the damages sought to be recovered under this section, does not prevent them from participating in the distribution of the damages. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 115 N. E. 603.

The damages recoverable under this section inure to the exclusive benefit of the widow or widower or children of next of kin, and if no such person exists an action can not be maintained. Smith v. Cleveland, C. C. & St. L. Ry. Co., - App.

115 N. E. 603.

It is not necessary in an action under this section to name the persons entitled to the damages sought to be recovered, but is sufficient to allege and prove their existence. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 115 N. E. 603. Under this section, if deceased contributed to the support of one or more of her children, and it was probable that she would have continued to do so except for her wrongful death, there was a pecuniary loss sufficient to sustain a judgment in their favor. Cleveland, C. C. & St. L. Ry. Co. v. Lutz, 64 App. 663, 116 N. E. 429. In order to maintain an action under this section, it is necessary that the existence of some of the beneficiaries should be alleged and proved, but not their identity. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. 117 N. E. 534. In an action under this section for wrongful death, it is not necessary to name the persons who are entitled to the damages, it being sufficient to allege and prove their existence. Smith v. Cleveland, C. C. & St. L. Ry. Co., N. E. 534.

App., 117

The failure in an action for wrongful death to name the persons entitled to damages does not prevent them from participating in the distribution of the damages. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 117 N. E. 534. In an action for wrongful death, the widow, children, and next of kin are not parties to an action by the administrator. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. 117 N. E. 534.

In an action for wrongful death, it is only necessary to allege such facts as show that some of the beneficiaries exist. Smith v. Cleveland, C. C. & St. L. Ry. Co., 117 N. E. 534.

-App.

In an action for wrongful death, the identity of the beneficiaries is important only in determining the amount of the damages. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. —, 117 N. E. 534.

In an action for wrongful death, if next of kin are named or proved, who are not beneficiaries within the meaning of the statute, and the damages of such alleged beneficiaries exceed the damages of the real beneficiaries, the existence of the real beneficiaries and the damages sustained by them is a proper defense. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. 117 N. E. 534. Where the beneficiaries are named in a complaint for wrongful death, or proof is made of them under the complaint in general terms, which merely alleges their existence, distribution of the damages recovered is not limited to the persons named or proved, but will be made to the persons actually entitled under the statute. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. -, 117 N. E. 534.

In an action for wrongful death, proof of the non-existence of grandchildren or other next of kin of the decedent, was held not necessary to recovery by the administratrix. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. - 117 N. E. 534.

In an action for wrongful death, it is not necessary for the complaint to allege or prove the absence of contributory negligence on the part of the decedent, such fact being a matter of defense under § 362. Smith v. Cleveland, C. C. & St. L. Ry. Co., App. 117 N. E. 534.

In an action for wrongful death, the court can not adjudge that the costs be paid from the decedent's estate, where the administrator is defeated in his action. Smith v. Cleveland, C. C. & St. L. Ry. Co., App., 117 N. E. 534.

Under this section, the administrator is the only person who can maintain the action. Drury v. Krogman, App., 120 N. E. 620.

Under this section, an action for death by wrongful act is barred if decedent in his lifetime made settlement for the injuries. Haskell & Baker Car Co. v. Lugerman, App. 123 N. E. 818.

A settlement before death for injuries by decedent who was at the time of unsound mind is voidable under this section. Haskell & Baker Car Co. v. Lugerman, — App. —, 123 N. E. 818.

In an action for wrongful death by a servant, statements of other servants as to conversations between themselves are not part of the res gestae. Haskell & Baker Car Co. v. Lugerman, App., 123 N. E. 818.

286. Survival of claims for personal injuries.

If a person obtains a judgment for personal injuries and the judgment is reversed on appeal, and such person dies before the case is retried, the claim will survive and may be prosecuted by the personal representatives of the decedent. Harmon v. Brown, 183 Ind. 535, 109 N. E. 212; Cincinnati etc. R. Co. v. McCullom, 183 Ind. 556, 109 N. E. 206.

291. Nuisance.

The pumping of oil and salt water from land and permitting it to flow over the lands of others is a nuisance for which damages may be recovered. Niagara Oil Co. v. Ogle, 177 Ind. 292, 98 N. E. 60.

The maintenance of a fertilizer plant near a private residence may constitute a nuisance for which an action will lie. Clendenin v. Pickett, 51 App. 283, 99 N. E. 530.

If a nuisance is of such a character that it continues from day to day, a cause of action because of the nuisance is not barred by the statute of limitations. May v. George, 53 App. 259, 101 N. E. 393.

Where a son's death is caused by a nuisance maintained close to the dwellinghouse and premises occupied by the father and a son, although owned by the mother, the father may maintain an independent action for damages for the death of the son. Pere Marquette R. Co. v. Chadwick, 65 App. 95, 115 N. E. 678.

[Acts 1915, p. 523. In force April 26, 1915.] 293a. Houses of ill fame-Nuisance.-1. That whoever shall own, occupy, lease, or operate any building, structure, apartment or place used or kept for the purpose of lewdness, assignation or prostitution, or permit the same to be so used or kept, in the State of Indiana, shall be guilty of maintaining a nuisance; and the building, structure, apartment or place and the ground itself where such lewdness, assignation or prostitution is conducted, permitted or exists, and the furniture, musical instruments and movable property used in conducting such nuisance, shall also be deemed a nuisance and shall be enjoined and abated as hereinafter provided.

293b. Nuisance abated-Injunction.-2. That whenever a nuisance, as defined in section 1 of this act, is conducted, permitted or exists in any county in this state, the prosecuting attorney of such county, or any citizen thereof, may maintain an action in equity in the circuit or superior court of such county, in the name of the State of Indiana, upon the relation of such prosecuting attorney or citizen, to abate such nuisance and to perpetually enjoin the person or persons conducting the same or the owner, lessee or the agent of the owner or lessee, of the building, structure, apartment or place or the ground where such nuisance exists, from directly or indirectly conducting or permitting such nuisance. Upon the presentation of a complaint alleging that a nuisance, as defined in section 1 of this act, exists, and if it shall be made to appear to the satisfaction of the court, or the judge in vacation, that the nuisance complained of exists, the court or the judge in vacation shall, upon the filing by the plaintiff of a proper bond to the