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APPEAL AND ERROR_Continued.

8. Vacation Appeal.-Death of Appellee Before Service of Process.-Dis-

missal.--A vacation appeal will be dismissed, where one of the
appellees, who had appeared in the court below in the capacity
of trustee for creditors, had died after transcript had been filed
and before he was served with notice of appeal, and his successor
had not been made an appellee.

Hays v. Pugh, 500.
9. Parties.-

Where judgment is rendered against some of the defend-
ants, and in favor of others, only those in whose favor judgment is
rendered are required to be joined as co-appellees upon an appeal
by the plaintiff from the judgment against him.

Kaufman v. Preston, 361.
10. Parties.Dismissal.-An appeal from a judgment setting aside a

deed and for damages against the grantees and an alleged coparty
to the fraud charged will not be considered where the Supreme
Court has no jurisdiction of the coparty, although the assign-
ments of error on which a reversal is sought are those in which
the coparty is not interested.

Mellott v. Messmore, 297.
11. Transcript.Precipe.-Appellant directed the clerk by precipe

to prepare a transcript of certain papers and entries, not includ-
ing the original bill of exceptions containing the evidence, and
the general certificate of the clerk did not refer to such original
bill, nor did the transcript show a filing thereof. Held, that the
evidence was not in the record, though what purported to be the
original bill of exceptions containing the evidence was embodied
in the transcript.

Berry v. Chicago, etc., R. Co., 668.
12. Record.Precipe.Bill of Exceptions.-Where the clerk was di-

rected by precipe 'to prepare and certify a full, true, and complete
transcript of the proceedings, papers on file, and judgment (except
interrogatories filed with reply and answers thereto) to be used
on appeal to the Supreme Court,” what purports to be the orig-
inal bill of exceptions containing the evidence certified by the
clerk as a part of the record is not properly in the record, and
cannot be considered.

Marcy Mfg. Co. v. Flint & Walling Mfg. Co., 173.
13. Instructions.--When Not All in Record.-A cause will not be re-

versed because of the alleged error of the court in giving instruc-
tions and refusing certain instructions tendered, where it is not
affirmatively shown that all of the instructions given are in the
record.

Frankel v. Michigan Mut. Life Ins. Co., 304; Board, etc., V. Gibson, 471.
14. Instructions.Record.—Where the instructions are brought into

the record by marginal notations under $544 Burns 1901, without
a bill of exceptions, an order book entry, set out in the transcript,
showing that both parties requested the court to instruct the jury
in writing, and that “the court thereupon instructs the seid jury,
which said instructions of the court are in writing, and are filed
herein, and are in these words, to wit,” followed by the instruc-
tions, does not sufficiently show that all of the instructions given
are in the record.

Board, etc., V. Gibson, 471.
15. Motions.-Record.-A motion to make a complaint more specific

is not a part of the record on appeal by order of court without a
bill of exceptions, where it does not appear that the order of court
was made on the motion of either party, and the motion was not
spread on the order book as a part of the court's order.

Board, etc., V. Gibson, 471.
16. Bill of Exceptions.-Evidence.—Under the act of 1897 (Acts 1897,

p. 244) the bill of exceptions containing the evidence must be filed

APPEAL AND ERROR_Continued.

in open court or with the clerk after it has been approved and
signed by the trial judge.

Kirkman v. State, 156.
17. Record.Dismissal of Action.Bill of E.rceptions.-To make an

order of court dismissing a cause, the motion, and exceptions
thereto a part of the record on appeal by order of court, without a
bill of exceptions, the order of court, motion, and exceptions
thereto must be copied in full in the order which directs the same
to be made a part of the record.

Town of Fredericksburg v. Wilcoxen, 359.
18. Joint Assignment of Error.—Conclusions of Law.–Where the assign-

ment of errors assails all of the conclusions of law jointly and one
of them is correct, the correctness or incorrectness of the others
is not presented for decision.

Chicago, etc., R. Co. v. State, ex rel., 189.
19. Exceptions to Conclusions of Law.-Exceptions to conclusions of

law in gross by plaintiffs jointly are not available unless all of
the conclusions were erroneous as to all of the plaintiffs.

Turpie v. Lowe, 47.
20. Conclusions of Law,-Practice.-

Where the conclusions of law
present the same questions raised by demurrers to answers, the
case may be disposed of on the conclusions of law.

Gas Light, etc., Co. v. City of New Albany, 268.
21. Record.Rules of Court.—The party asserting that a ruling of

the trial court is erroneous must cite the page and line of the

record containing such ruling. Indiana, etc., R. Co. v. Ditto, 669.
22. Court Rules.Failure to Index Record.—Where the appellant fails

to prepare an index of the record, as required by rule three of the
Supreme Court, the appeal will be dismissed.

State, ex rel., V. Lankford, 34; Dixon v. Poe, 54.
23. Rules of Supreme Court.-Names of Witnesses.- Index to Record.

-Evidence. --Assignments of error that the verdict is contrary to
law, and not sustained by sufficient evidence, will not be consid-
ered on appeal, where the rules of the Supreme Court requiring
the names of witnesses and the character of the examination to
be placed on the margin of the record, and a recital of the evi.
dence in narrative form, have not been complied with.

Indiana, etc., R. Co. v. Ditto, 669.
24. Rules. Reply Brief. New Point. — Under Supreme Court rule

twenty-two, an alleged error raised for the first time in a reply brief
will not be considered.

Malott v. State, ex rel., 678.
25. Moot Question.Municipal Corporations.-Sewers.- Where in an

action against a city for damages for the appropriation of ground
for the construction of a sewer it appears from the record that
the sewer was constructed by virtue of a statute enacted for such
enterprises, and not under a claim of an easement, a finding by
the court that the city had a right, in the nature of an easement,
to enter and construct the sewer, presents a moot question, and
will not be considered on appeal.

Gas Light, etc., Co. v. City of New Albany, 268.
26. Complaint When Questioned for First Time on Appeal.-

Where there
is an entire failure to aver a material and necessary fact essential
to the existence of the cause of action attempted to be stated in
the complaint, the same may be questioned for the first time in
the Supreme Court.

Goodwine v. Cadwallader, 202.
27. Burden of Proof.—The silence of a finding upon an issue will be

resolved against the party having the burden of establishing such
issue.

Peele v. Ohio, etc., Oil Co., 374.

APPEAL AND ERROR_Continued.
28. Harmless Error.–Where it appears from the special findings, in 80

far as they were based on the issues that the appellant had the
burden of maintaining, that appellant is not entitled to recover,
the Supreme Court will disregard an intermediate error in the
ruling upon a demurrer to an affirmative pleading of the appellee.

Peele v. Ohio, etc., Oil Co., 374.
29. · Jurisdiction.-Collateral Attack.-Invoking questions in the right

of others against the validity of a judgment for want of notice or
other jurisdictional fact is a collateral attack by the party doing
so, and as against a collateral attack a finding of the court that
notice has been given, or other facts necessary to jurisdiction has
been established, is conclusive, unless the record affirmatively dis-
closes that the contrary is true.

Pittsburgh, etc., R. Co. v. Machler, 159.
30. Motion Directing Verdict.Record. -An assignment in a motion

for a new trial that the court erred in sustaining a motion to
direct a verdict cannot be considered on appeal where neither
the motion or the ruling thereon nor the instruction was incorpo.
rated in a bill of exceptions or made part of the record in any other
manner.

Bonham v. Citizens St. R. Co., 106.
31. Harmless Error.- Where a cross-complaint was clearly insuffi.

cient for want of facts, sustaining a demurrer thereto on the
ground that “it fails to state sufficient facts to constitute a cross-
complaint, was harmless.

Wray v. Fry, 92.
32. Ruling on Demurrer.- When Error Cured by Verdict.-In order to

avoid an erroneous ruling of the court in overruling demarrers to
bad paragraphs of complaint on the ground that the verdict
was based on good paragraphs, the burden is upon the plain-
tiff on appeal to show by the record that the verdict rests
exclusively on some good paragraph or paragraphs of complaint.

Baltimore, etc., R. Co. V. Jones, 87.
33. Harmless Error.-

Where in an action for the value of certain
land conveyed to defendant, and for an accounting, defendant
answered that plaintiff agreed to convey free of encumbrance,
but that defendant was fraudulently induced to accept a deed in
which he assumed certain encumbrances thereon, error, if any,
in overruling a demurrer to such answer was rendered harmless by
a finding sustaining the deed and holding that the clause assuming

the encumbrances was inserted by mistake. Turpie v. Lowe, 47.
34. Evidence.—To justify the Supreme Court in disturbing a judg-

ment of the trial court on the evidence alone, it must appear that
the evidence is such as to present for decision a question of law
on some material issue, and that such question, ander the judg-
ment of the trial court, was decided erroneously.

Carver v. Forry, 76.
35. Mixed Quiestion of Law and Fact.Review.—Whether an answer

to a special interrogatory was sustained by the evidence, is a
mixed question of law and fact and cannot be presented for re-

view on appeal, under $642 Burns 1901. Lautman v. Miller, 382.
36. Waiver of Error.-Free Gravel Roads.-Objection to Report of Viewers.

-Objections to the report of the viewers in a gravel road proceed.
ing, which are not discussed in appellant's brief on appeal, are
deemed waived.

Gifford v. Baker, 339.
37. From Commissioners' Court.-- Jurisdiction of Circuit Court.—On ap-

peals from the county commissioners' court, the circuit court can
only take cognizance of such questions as were properly presented
before the commissioners, except so far as the issues there formed

APPEAL AND ERROR_Continued.

may be varied by such amendments as are permissible under the
rules of practice.

Smyth v. State, ex rel., 332.
38. Pleading.Limitation of Actions.-Harmless Error. A cause will

not be reversed because of error of the court in overruling a de-
murrer to an answer pleading the statute of limitations, where
the plaintiffs failed to stand upon the decision, and filed replies
to the answers setting up the bar of the statute, and went to trial,
and failed to sustain the material allegations of the complaint.

Turpie v. Lowe, 314.
APPELLATE COURT—Written opinions, see APPEAL AND ERROR,

4, 5; Craig v. Bennett, 9.
Transfer of cause to Supreme Court, see APPEAL AND ERROR, 6;

Craig v. Bennett, 9.
ARBITRATION AND AWARD—Arbitration of fire loss, see IN-

SURANCE, 3; Vernon Ins. Co. v. Maitlen, 393.
By one of the parties to the contract, see CONTRACTS, 2; Board,

etc., v. Gibson, 471.
ASSAULT-
1. Threats.-Damages.Civil Liability.Defendant went to the home

of plaintiff where she was alone with her children, and by threats
to burn the house, and by pointing a pistol at her, caused her to
leave her home and seek safety at the home of the nearest neigh-
bor, one mile away. The weather being cold, the exposure cansed
her to be sick for two or three months. Held, that the defendant
was guilty of an assault, and that a civil action for damages
would lie.

Kline v. Kline, 602.
2. Wilfulness.-Damages.-Fright.-—

Mental Suffering.-In an action for
damages for an assault, where it appears that the defendant's acts
were wilful, the plaintiff may recover full compensation for the
damages sustained, including damages for fright and mental suf.
fering.

Kline v. Kline, 602.
ASSIGNMENT FOR BENEFIT OF CREDITORS
1. Sales.-Act Governing. The act of 1893 (Acts 1893, p. 34) and act of

1897 (Acts 1897, p. 245), concerning assignments for benefit of
creditors are void, since the first purports to be an amendment
of an act that by amendment had ceased to exist, and the second
purports to be an amendment of an act that is void.

Peele v. Ohio, etc., Oil Co., $74.
2. Sales.Less than Two-thirds of Appraised Value.-Section 744 Burns

1901, providing that “no property shall be sold on any execution
or order of sale issued out of any court for less than two-thirds of
the appraised cash value thereof, exclusive of liens and encum-
brances, except where otherwise provided by law," has no applica-
tion to sales by assignees for benefit of creditors, even when made
under authority of court.

Peele v. Ohio, etc., Oil Co., $it.
3. Petition to Sell.Notice. - It is not necessary to give notice of a peti-

tion by an assignee for the benefit of creditors for the sale of
trust property.

Peele v. Ohio, etc., Oil Co., 974.
ASSUMPSIT-
1. Special Contract. Counties. – A complaint in general assumpsit

against a county for extra work in the construction of a court-
ASSUMPSIT—Continued.

house is not bad because it discloses that there was a special con-
tract therefor, especially where the alleged special contract

merely fixed the maximum price. Board, etc., v. Gibson, 471.
2. Extra Work in Constructing Court-House. — An action in assump-
sit for extra labor performed and material furnished in the con-
struction of a court-house will not be defeated because of the
alleged informality of the board meeting at which such matters
were agreed to, where the individual members of the board ac-
tively engaged in superintending the work.

Board, etc., v. Gibson, 471.
ATTORNEY-Power of to sign remonstrance, see INTOXICATING

LIQUORS, 1, 2; Ludwig v. Cory, 582.
Satisfaction of judgment, see ALTERING PUBLIC RECORDS; REC-

ORDS; State v. Henning, 196.
Fees for services in assisting in the prosecution of a criminal

cause, see COUNTIES, 6; Turner v. Board, etc., 166.
Fees for collecting street improvement assessment, see MUNICIPAL

CORPORATIONS, 4; Pittsburgh, etc., R. Co. v. Fish, 525.
AUDITOR OF STATE–Examination of business of insurance

company, see INSURANCE, 1, 2; State, ex rel., v. Commercial Ins.

Co., 680.
BANKS AND BANKING-Examination of bank account by

county assessor, see Taxation, 1, 2; Applegate v. State, ex rel., 119.
BILL OF EXCEPTIONS_See APPEAL AND ERROR.
BILLS AND NOTES-
1. Words on Face Indicating Payment.-—Presumption.-The fact that

a note sued on by an administrator of the estate of payee has
stamped upon it: “Kewanna Bank, March 8, 1897, paid Ke-
wanna, Indiana," does not raise the presumption of the payment
of the note to intestate or to the administrator.

Toner v. Wagner, 447.
2. Plea of Payment.Burden of Proof.Where the defendant in an

action on a promissory note pleads payment, the burden is upon
him to establish his plea by a preponderance of the evidence.

Carver v. Forry, 76.
3. Non est Factum. Judgment Notwithstanding General Verdict.—A find-

ing in an action on a note that defendant did not sign the note is not
in irreconcilable conflict with a general verdict for plaintiff,
where it was shown that defendant could not write and there was
evidence that defendant authorized another to sign it for him.

Brems v. Sherman, 300.
4. Notes in Payment for Farm Machinery.-

Collateral Agreement. - Answer.
-In an action on notes given for farm machinery, an answer
alleged in its introductory part that plaintiff ought not to main-
tain the action, because defendant, before their execution, had
purchased the machinery of plaintiff, under an agreement by
which he was not to pay therefor unless the machinery did good
work. It was further alleged that defendant gave the machin-
ery a trial, and that it failed to do good work; but it was not
alleged that it was properly tested, or that its failure was due to
defects in its construction. It was further alleged in the answer

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