CSJorti^U &m Bd^aal SJibratg \BowfnMerr!llCo- LAW BOOKS ImdimapousInd. i Cornell University Library KFI3555.E94 Ewbank's manual :a manual of practice In 3 1924 024 670 790 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024670790 EWBANK'S MANUAL A MANUAL OF PRACTICE Supreme and Appellate COURTS OF INDIANA CONTAINING COMPLETE DIRECTIONS FOR THE CONDUCT OF AN APPEAL FROM THE JUDGMENT IN THE TRIAL COURT TO THE FINAL DISPOSITION OF THE CASE WITH FORMS By LOUIS B." E}JiBANK OF THE INDIANAPOLIS BAR INDIANAPOLIS THE BOWEN-MERRILL COMPANY I goo ' Copyright 1900 BY THE BOWEN-MERRILL COMPANY THE HOLLENBBCK PRESS INDIANAPOLIS TABLE OF CONTENTS {^References are to Seotions.^ CHAPTER 1. INTKODUCTION. WHAT IS AN APPEAL? 1. In general. 5. Amendments must be made by 2. Distinguished from a trial. the clerk. 3. Distinguished from an action to 6. Only questions of law may be re- review, viewed. 4. Record imports absolute verity. CHAPTER 2. STEPS IN AN APPEAL. 7. Reservation ol exception below. 15. 8. Rendition and proper entry of 16. judgment or order from which 17. an appeal will lie. 18. 9. Filing appeal bond, if necessary. 19. 10. Precipe for transcript. 20. 11. Correction of transcript. 21. 12. Making marginal notes. 22. 13. Assignment of errors. 23. 14. Filing transcript. Giving notice. Supersedeas. Subipission. Motion to dismiss. Appearance of appellee. Assignment of cross-errors. Briefs and arguments. ■ Correction by certiorari. Petition for rehearing or modifi- cation. CHAPTER 3. MANNER OP RESERVING EXCEPTIONS BELOW. 24. Exception must be taken when ruling is made. 25. What eifceptions are shown by order-book entries. 26. What exceptions may be shown by bill of exceptions. (iii) 27. What exceptions maybe shown by order of court. 28. Other ways of recording excep- tions. 29. The form of a bill of exceptions. 80. Certificate to-bill of exceptions. IV TABLE OF CONTENTS. 31. Presentation for judge's signa^ ture. 32. Filing after being signed. 33. Allowance of time for filing. 34. Effect of recitals in bill of ex- ceptions. \_Beferences are to Sections.' 35. Manner of making evidence part of the record by bill of exceptions. 36. Manner of reserving exception by order of court. 37. Amendment of bill of excep- tions. CHAPTER 4. PRESENTATION OF OBJECTIONS TO THE TRIAL COURT. 38. 39. 40. 41. 42. 43. 44. 45. 46. For what errors the judgment 47. may be attacked for the first 48. time on appeal. What errors need not be re- 49. viewed by a motion for a new trial. 50. What classes of errors are causes 51. for a new trial. Same — Irregularity in proceed- 52. ings. Same — Accident or surprise. 53. Same — Misconduct of jury. Same — Error of law. 54. Same — N e w 1 y-discovered evi- dence. 55. Same — Verdict not supported by the evidence. Same — Excessive damages. Same — Recovery too large or too small. Same — Misconduct of party or counsel. Form of motion for new trial. Enumeration of causes in motion for new trial. Affidavits in support of motion for new trial. Time and manner of filing mo- tion for new trial. Saving exception when motion for new trial is overruled. Effect of sustaining motion for new trial. CHAPTER 5. JURISDICTION OF SUPREME AND APPELLATE COURTS. 56. Territorial limits of jurisdiction 61. Proposed amendment to the con- of courts. stitution. 57. Organization and customs of 62. General classes of cases in which courts. appellate court" is forbidden 58. Jurisdiction of supreme court is jurisdiction. general. 63. Jurisdiction of foreclosure of 59. Supreme court has jurisdiction of statutory liens. interlocutory appeals. 64. Appeals in prosecutions for mis- 60. Original jurisdiction of supreme demeanors. court. TABLE OF CONTENTS. IBeferences are to Sections. 65. 66. 67. 69. 70. 71. 72. Appeals in cases originating be- fore a justice of the peace. Appeals in actions seeking recov- ery of money where the amount in controversy does not exceed 13,500. Actions in replevin. Actions between landlord and tenant. Claims against decedents' estates. Exceptions filed to reports of administrators, executors or guardians. Appointment of administrators, executors and guardians. Eemoval of administrators, ex- ecutors or guardians. 73. Appeals in cases of bastardy. 74. Jurisdiction of main issue carries with it incidental matters. 75. Appeals involving constitutional questions. 76. Appeals in cases of equitable ju- risdiction. 77. Appeals involving title to real estate. , 78. Appeals from convictions of fel- ony, habeas corpus cases, and other cases not enumerated. 79. Transfer of cases from one court to another. 80. Appellate court is sovereign where it has jurisdiction. CHAPTER 6. FROM WHAT COURTS AND WHAT JUDGMENTS AN APPEAL LIES. 81. Courts from whichi appeal lies to 85. supreme or appellate court. 82. What judgments are and what 86. are not final. 83. What orders concerning receiv- 87. ers may be appealed from. 88. 84. Appeals from orders for sur- render of personal property or rights therein. 89. Appeals from orders for surren- der of possession of real estate. Appeals from orders in injunc- tion proceedings. Appeals in habeas corpus cases. No appeal unless covered by the express provisions of the statute. Appeals where less than fifty dollars is involved. CHAPTER 1. PECULIARITIES OF DIFFERENT KINDS OP CASES. 90. Vacation appeals. 96. 91. Term appeals. 92. Appeals from interlocutory or- 97. ders are usually term appeals. 93. Appeals from appointment or 98. refusal to appoint receiver. 94. Appeals in agreed cases. 99. 95. Appeal by reserved ' question of law. Criminal case. 100. Appeal by reserved question of law. Civil case. Appeal from decision affecting settlement of estate. General rules as to appeals in criminal cases. Appeal by the state in criminal case. Appeal by the defendant in crim- inal case. VI TABLE OF CONTENTS [_Beferenoes are to Sections.'\ CHAPTER 8. TIME FOR TAKING APPEAL. 102. 103. 101. Appeal's that may be taken with- in one year. Time for perfecting term ap- peal. Time for appealing in receiver- ship cases. 104. Time for appealing in matters growing out of settlement of decedents' estates. 105. Time for appealing from inter- locutory orders. 106. Manner of computing time for taking appeal. 107. All acts for perfecting appeals must be done within time al- lowed. ' 108. Exception in appeals in criminal cases. 109. Exception in favor of persons under legal disabilities. CHAPTER 9. WAIVER OF EIGHT TO APPEAL. 110. Consequences of doing an act 113. which amounts to a waiver. 111. Waiver by suit to review judg- 114. ment. 112. Waiver by accepting benefit of judgment. Waiver by effecting compromise or executing release of errors. Waiver in criminal case by flee- ing from justice. CHAPTER 10. THE TRANSCRIPT. 115. The precipe. 116. Preparation and form of the transcript. 117. Correction of errors in the transcript before filing. 118. Numbering pages and lines. 119. Making marginal notes. 120. Assigning errors on the tran- script. 121. Manner of filing 'transcript of 122. Necessity for making tran- script affirmatively show facts relied on. 123. Of what facts the court will take judicial notice. TABLE OF CONTENTS. VU [^Beferences are to Sections."] CHAPTER 11. ASSIGNMENT OF ERRORS. 124. Assignment of errors is appel- lant's pleading. 125. Assignment must be. written on the transcript. 126. Assignment must contain full names of all parties. 127. Each specification must be complete in itself. 128. Specifications must relate only to matters of law. 129. Form of an assignment of er- rors. 130. Should be written on tran- script before it is filed. 131. Must be signed by appellant or his attorney. 132. When and how assignment may be amended. 133. 134. 135. 136. 137. 138. 139. 140. 141. What may be assigned as error. Assignment must relate to final ruling. What may be embraced by a sin- gle assignment. What may be first objected to by an assignment of error. Assignment must be supported by the record and can not contradict it. Joint assignment must be good as to all who join in it. When and how cross-errors may be assigned. What may be reached by an as- signment of cross-errors. Necessity of an assignment of errors in criminal cases. CHAPTER 12. PARTIES TO THE APPEAL. 142. Only real party in interest can 147. appeal — Actual controversy, i 143. Appeal by part of judgment de- 148. fendants. 144. Appellant must be party to judg- 149. ment. 145. Effect of death of party. 150. 146. Who must be named and given 151. notice as co-appellants. Exception to rule requiring co- parties to be notified. Effect of co-parties' failure to appear. Who must be named and given notice as appellees. Waiver of defect of parties. Motion to dismiss for defect of parties. CHAPTER 13. NOTICE OF APPEAL. 152. Is essential to jurisdiction unless 154. Notice below in vacation ap- waived. peals. 153. Must be served under provisions 155. Notice above in vacation ap- of the statute. peals. Vlll TABLE OF CONTENTS. [Beferencen are to Sections.'] 156. Notice to co-parties. 163. 157. Manner of serving and proving 164. notice. 165. 158. Written notice required. 159. Forms of notice and proof of 166. service. 160. Time within which notice must 167. be issued and served. 161. Dismissal for failure to give 168. notice. 162. Notice by publication. Waiver of notice by appellee. Waiver of notice by co-party. Prayer for appeal suflBcient no- tice in term appeals. Notice in case party to the judg- ment dies. Notice of steps in conduct of the appeal. Notice of appeal in criminal cases. CHAPTER 14. APPEAL BOND. 169. In what appeals a bond is es- 174. sential. X75. 170. When appeal stays execution t without bond. 176. 171. Execution not stayed until bond is actually filed. 177. 172. Application for supersedeas. 173." Time for filing appeal bond in different kinds of appeals. What is covered by the bond. Where bond should be filed and by whom approved. Forms of bond in different ap- peals. Effect on the judgment appealed from of filing an appeal bond. CHAPTER 15. SUBMISSION AND BKIEFS ^ADVANCEMENT. 178. What is submission and when 188. made. 189. 179. Appellant's brief within sixty days. 190. 180. Essentials of a brief. 191. 181. Stating facts in the brief. 192. 182. Setting out substance of pleading or instruction. 193. 183. Manner of presenting argument. 184. Only matters shown by the rec- 194. ord may be discussed. 195. 185. Citation of authorities. 196. 186. Supreme court library. 197. 187. Use and abuse of case law. Waiver of points not discussed.' Sufficiency of supersedeas brief. Appellee's brief within ninety days. Filing additional briefs. Taking out papers to prepare briefs. When oral argument will be heard. Preparation for oral argument. Conduct of oral argument. Advancement of causes. Motion to advance. TABLE OF CONTENTS. \^Beferences are to Sections.1 CHAPTER 16. CONDUCT OF appellee's DEFENSE. IX 198. Presumptions in favor of appel- lee. 199. Motion to dismiss appeal. 200. Challenging defective assign- ments of errors. 201. Presentation of matters not shown by the record. 202. Notice of collateral motions. 203. Joinder in error. 204. What is waived by joinder in error. 205. What is not waived by joinder in ^rror. 206. Assignment of cross-errors. 207. Security for costs. CHAPTER 17. correction of record. 208. Record imports absolute verity and can not be contradicted. 209. Appellant must present record affirmatively showing error. 210. Certiorari will issue to correct mistakes in transcript. 211. Other purposes for which certio- rari may issue. 212. Form of application for certiorari. 213. Notice of application for certio- rari. 214. 215. 216. 217. 218. 219. Errors in the record below cor- rected by the trial court before certiorari issues. Notice of proceeding to correct in court below is essential. Correction of clerk's certificate. Rehearing not granted to enable parties to correct record. Correction may sometimes be had after oral argument. Form of writ of certiorari. CHAPTER 18. DISMISSAL OF AN APPEAL. 220. Failure to have proper judgment 227. entered below. 221. Failure to serve notice on parties 228. to judgment. 222. Failure to file brief. 229. 223. Failure to give security for costs. 224. Failure to file transcript within 230. time allowed. 225. Failure to number pages and 231. lines and make marginal notes. 232. 226. Failure to make assignment of 233. errors contain full names of all parties. 234. Acceptance of benefit of judg- ment. Person without Teal interest can- not maintain appeal. Appeal can not be maintained in name of dead person. Waiver of objections by taking any steps in appeal. Motion to dismiss appeal. Dismissal by appellant. Reinstatement of appeal errone- ously dismissed. Withdrawal of transcript for second appeal. TABLE OF CONTENTS. [_Iieferences are to Sections.'^ CHAPTER 19. CONSIDERATION AND DECISION OF CASES. 235. Distribution of cases. 245. 236. Abstracts of the record (New rule). 246. 237. Consideration of appeal. 247. 238. Preparation of opinions. 239. When judgment on appeal be- 248. comes effective. 249. 240. By whom petition for rehearing may be presented. 250. 241. Time and manner of asking for a 251. rehearing. 242. For what rehearing may be 252. asked. 253. 243. Form of petition for rehearing. 244. Brief on petition for rehearing. Modification of opinion or man- date. Effect of granting a rehearing. When second petition will be entertained. Certifying opinion to lower court. Authority of appellate tribunal over future action of trial court. Law of the case. Afiirmance or reversal on condi- tion. Affirmance or reversal in part.. Publication and authority of opinions. CHAPTER 20. HARMLESS ERROR. 254. Only what injured appellant's substantial rights is reversible error. 255. Party can not complain of errors he induced the court to com- mit. 256. Party can not complain of ruling which operated in his own favor. 257. 258. Party can not complain of rulings which exerted no real influ- ence. Judgment not reversed for error in procedure by which correct result was reached. CHAPTER 21. EXTRAORDINARY JURISDICTION OF SUPREME COURT. 259. May issue restraining orders and injunctions. 260. Cases in which jurisdiction to issue such orders has been en- tertained. 261. 262. Cases in which jurisdiction co issue such orders has been dis- claimed. May issue writs of mandate in aid of its appellate jurisdiction. TABLE OF CONTENTS. XI [^References ate to Sections.} 263. 264, Discretion of trial judge not sub- ject to control by extraoriii- nary writ. Performance of acts necessary to perfect appeal may be com- manded. 265. Matters wbich may be corrected by appeal or certiorari will not be controlled by extraordina- ry writ. Procedure to obtain extraordi- nary writs. Prompt application is necessary to obtain writ. 268. Writs of prohibition. 266. 267. CHAPTER 22. COSTS OF AN APPEAL. 269. Items of cost of an appeal. 270. Apportionment of costs of an ap- 271. Liability for costs in criminal case, ' 272. Liability of sureties on appeal bond and cost bond. 273. Manner of collecting costs in higher courts. CHAPTER 23. REVIEW OF AN EXERCISE OF DISCRETION. 274. Abuse of discretion is cause for reversal. 275. Granting or refusing continu- ance. 276. Amendment of pleadings. 277. Staying second action for same cause. 278. Change of venue. 279. Compelling election between counts of indictment. 280. Control of argument. 281. Examination of witnesses. 282. General control of case. CHAPTER 24. OBJECTIONS FIRST PRESENTED ON APPEAL. 283. What pleadings may be at- 287. tacked for first time on appeal. 284. Manner of attacking complaint. 288. 285. Manner of attacking indictment 289. 286. Sufficiency of single paragraph or count. When complaint will be held suflBcient. Adheringto trial court theory. Attacking jurisdiction of trial court. Xll TABLE OF CONTENTS. \_Beferences are to Sections.'} CHAPTER 25. STARE DECISIS. 290. The doctrine of stare decisis. 294. Court will not declare that crim- 291. Authority of judicial decisions. inal which has been decided 292. When a decision will be over- not to be so. ruled. 295. When overruling decision will 293. When a decision has become a be given retrospective effect. rule of property. ' 896. Overruled decision remains the law of that case. '' TABLE OF CASES \^Beferenees are to Pages.'] Abel V. Alexander, 45 Ind. 523, Abshire v. Mather, 27 Ind. 381, V. Williamson, 149 Ind. 248, 14, 19, 154, 219, 220, 221, 222, 224, 225, 226, 230, 235, 242, 244, 298, 304, 324, Achey v. State, 64 Ind. 56, Adams v. Davis, 109 Ind. 10, V. Harrington, 114 Ind. 66, V. Larose 75 Ind. 471, V. Main, 8 Ind. App. 232, Addison S. Tp. v. School City, 21 Ind. App. 707, Ades V. Levi, 137 Ind. 506, .^tna L. Ins. Co. v. Leroy, 15 Ind. App. 49, V. Nexsen, 84 Ind. 34, .^tna Powder Co. v. Hildebrand, 137 Ind. 462, Ahlendorf v. First Nat'l Bank, 6 Ind. App. 316, Albany Land Co. v. McElwaine- Richards Co., 11 Ind. App. 477, Albrecht v. Foster Lumber Co., 126 Ind. 318, 98, Alexander v. Alexander, 9 Ind. App. 48, 270, 271, V. Gill, 130 Ind. 485, 58, 207, 217, 218, 220, Alexandria, etc., Co. v. Irish, 16 Ind. App. 534, Alfred Shrim,pton & Sons v. Keyes, 17 Ind. App. 305, 179, Allen V. Adams, 150 Ind. 409, V. Berndt, 133 Ind. 355, V. Bond, 112 Ind. 523, V. Gavin, 130 Ind. 190, 10, 167, V. Northwestern, etc., Co., 136 Ind. 608, 271, 273, 274, V. Studebaker, etc., 152 Ind. 406, Alley V. State, 76 Ind. 94, 47, American, etc., Co. v. Clark, 123 Ind. 230, 79 V. Faust, 11 Ind. App. 638, V. Sisk, 9 Ind. App. 305, American Ins. Co. v. Yearick, 78 Ind. 202, 27, 28 Anderson v. Ackerman, 88 Ind. 481, 177 V. Donnell, 78 Ind. 803, 367 V. Hathaway, 130 Ind. 528, 67 V. Mitchell, 58 Ind. 592, 147, 155 V. State, 147 Ind. 445, 72, 78, 74, 399 Anderson Glass Co. v. Brake- man, 20 Ind. App. 226, 193, 220, 224, 235, 246 Anderson, etc., Assn. v. Thomp- son, 88 Ind. 405, 210, 211, 305, 380, 334 Andis V. Lowe, 8 Ind. App. 687, 96 V. Richie, 120 Ind. 138, 66 Angevine v. Ward, 66 Ind. 460, 113 Anheuaer, etc., Assn. v. George, 14 Ind. App. 1, 220, 285, 241 Applegate v. Baxley, 95 Ind. 147, 35 V. Edwards, 45 Ind. 329, 120 v. White, 79 Ind. 413, 27 Arbintrode v. State, 67 Ind. 267, 363, 403, 406 Arbuckle v. Biederman, 94 Ind. 168, 65, 274 v. Swim, 123 Ind. 208, 300 Archey v. Knight, 61 Ind. 311, 268 Armacost v. Lindley, 116 Ind. 295, 69 Armes v. Chapel, 28 Ind. 469, 163 Armstrong v. Dunn, 143 Ind. 433, 207, 208, 299 Artman v. Wyncoop, 132 Ind. 17, 389 Ashton V. Shepard, 120 Ind. 69, 57, 205, 405, 406 Atkinson v. Mott, 102 Ind. 431, 57 V. Williams, 151 Ind. 481, 115, 148, 329 Aurelins v. Lake Erie, etc., R. Co., 19 Ind. App. 584, 202 Austin V. Earhart, 88 Ind. 182, 194 V. McMalns, 14 Ind. App. 514, 405 Axtell V. Workman, 17 Ind. App. 152, ' 405 (xiii) 187 187 325 461 410 377 173 393 421 408 76 65 409 76 368 ,99 836 412 189 334 79 31 67 279 276 368 65 ,80 216 31 XIV TABLE OF CASES. \_Beferences are to Pages.'] Aydelott v. Collings, 144 Ind. 602, 3, 174, 279 Ayres v. Armstrong, 142 Ii.d. 263, 37, 42, 43 B Babcock v. Johnson, — Ind. App. — , 53N.E. Rep. 241, 12, 179, 330 Backer v. Eble, 144 Ind. 287, 53, 113, 114, 323 V. Pyne, 130Ind. 288, 44 Bacon v. Withrow, 110 Ind. 94, 12, 13, 154, 190, 198 Badger v. Merry, 139 Ind. 631, 361 Baecher v. State, 19 Ind. App. 100, 202 Bailey v. Martin, 119 Ind. 103, 177 Bain v. Goss, 123 Ind. 511, 39 Bake v. Smiley, 84 Ind. 212, 135, 140 Baker v. Arctic Ditchers, 54 Ind. 310, 44 V. Carr. lOOInd. 330, 366 V. Griffitt, 83 Ind. 411, 127, 152, 153 V. Ludlam, 118 Ind. 87, 160 V. State, 134 Ind. 657, 406 V. Tobin, 40 Ind. 310, 184 Bales V. Brown, 57 Ind. 282, 368 Baldwin v. Burrows, 95 Ind. 81, 398 V. Shill, 3 Ind. App. 291, 35 V. Sutton, 148 Ind. 591, 4, 174, 180, 193, 194, 199, 200, 279, 299, 345, 361 V. Threlkeld, 8 Ind. App. 312, 274, 276 Baltimore, etc., E. Co. v. Cono- yer, 149 Ind. 524, 24, 346 V. Countryman, 16 Ind. App. 139, 81 Balue V. Richardson, 124 Ind. 480, 31, 173 V. Taylor, 136 Ind. 368, 409 Bane v. Keefer, 152 Ind. 544, 202, 409 V. Ward, 77 Ind. 153, 202 Banister v. Allen, 1 Blackf. 414, 313 Bank of Commerce v. Wiltsie (Ind.l, 53N. E. Rep. 950, 358 Bank of Westfleld v. Inman, 133 Ind. 287, 148, 154, 155, 230, 233, 234, 241 Banner, etc., Co. v. Kamm, etc., Co., 145 Ind. 266, 26 Barley v. Dunn, «5 Ind. 338, 39 Barnaby v. State, 106 Ind. 539, 45 Barnard v. Sherley, 135 Ind. 547, 379 Earner v. Bayless, 134 Ind. 600, 27, 28, 82, 402 Barnes v. Jones, 91 Ind. 161, 118 Barnes v. Pelham, 18 Ind, App. 166, 10, 166, 169, 174 Barnett v. Bromley, etc., Co., 149 Ind. 606, 181, 192< 299, 330, 331 V. Feary, 101 Ind. 95, 400 V. State, 141 Ind. 149, 67, 403, 404, 406 Barr v. Vanalstine, 120 Ind. 590, 364 Barrett v. Johnson, 2 Ind. App. 25, 95, 105 Bartlett v. Burden, 11 Ind. App. 419, 71, 274 V. Manor, 146 Ind. 621, 106, 140 V. Pittsburgh, etc., R. Co., 94 Ind. 281, 366 Hartley v. State, 111 Ind. 358, 46 Bass V. Doehrman, 112 Ind. 390, . 330 334 V. State, 136 Ind. 165, ' 61 Bayless v. Jones, 10 Ind. App. 102, 174 Beach v. Bell, 6 Ind. App. 152, J02 Beacher V. State, 19 Ind. App. 200, 181 Bealer v. State, 150 Ind. 390, 33, 34, 54, 175, 312 Beard v. Hand, 88 Ind. 183, 31 V. State, 54 Ind. 413, 31 Beatty v. O'Connor, 106 Ind. 81, 38, 39 V. State, 82 Ind. 228, 396 V. Miller, 146 Ind. 231, 49 - V. Voris, 138 Ind. 265, 139, 140 Beavers v. State, 58 Ind. 530, 47 Beck V. State, 72 Ind. 250, 142, 244 Beckett v. State, 4 Ind. App. 136, 58, 97 V. State, 10 Ind. App. 408, 97 Becknell v. Becknell, 110 Ind. 42, 6, 121 Bedford, etc., E. Co. v. Brown, 142 Ind. 659, 2,7,205,407 V. Rainbolt, 99 Ind. 551, 70 Beggs V. State, 122 Ind. 54, 156 249 328 Behrensv. McCance, 106Ind!330,' 28 Behymer v. State, 95 Ind. 140, 28, 35 Beigh V. Smarr, 62 Ind. 400, 329 Belck V. Belck, 97 Ind. 73, 392 Bell V. Corbin, 136 Ind. 269, 393 V. Mousset, 71 Ind. 347, 139 V. Pavey, 7 Ind. App. 19, 178, 279 Beller v. State, 90 Ind. 448, 187 Belton V. Smith, 45 Ind. 291, l(i3 Bementv. May, 135 Ind. 665, 42, 46, 59, 80 Benbow v. Garrard, 139 Ind. 571, 220 Bender v. Wampler, 84 Ind. 172, 31 Beneflel v. Aughe, 93 Ind. 401, 119 Benham v. State, 116 Ind. 11§, 406 TABLE OF CASES. XV IBeferences are to Pages. \ Bennett y. Bennett, 102 Ind. 86, 140 V. Closson, 138 Ind. 542, 75 V. Seibert, 10 Ind. App. 369, 154, 227 V. State, 22 Ind. 147, 274 Benoit v. Schneider, 89 Ind. 591, 213, 219, 246 Bensch v. Farnsworth, 9 Ind. App. 547, 133 Benson v. Baldwin, 108 Ind. 106, 27, 40, 46 V. Christian, 129 Ind. 535, 92, 98, 99 • Berghoff v. McDonald, 87 Ind. 549, 33, 174 Berkey v. City of Elkhart, 141 Ind. 408, 99, 100 Bernhamer v. State, 123 Ind. 577, 395 Bersch v. State, 13 Ind. 434, 62 Bertha v. Sparks, 19 Ind. App. 431, 404, 406, 407, 408 Bessete v. State, 101 Ind. 85, 61, 72 Bethel v. Bethel, 92 Ind. 318, 184 Beugnot v. State, 11 Ind. App. 620, 74, 77 Biddle v. Pierce, 141 Ind. 148, 94 Bierly v. Harrison, 123 Ind. 516, 37 Big Creek Stone Co. v. Seward, 144 Ind. 205, 284, 304 Big Four, etc., Assn. v. Olcott, 146 Ind. 176, 192, 224, 227, 299, 330 Bilby V. Elliott, 14 Ind. App. 98, 311 Bissell V. Wert. 35 Ind. 54, 133 Bitting V. Ten Eyck, 82 Ind. 481, 345 Black V. Thompson, 136 Ind. 611, 204 Blackburn v. Crowder, 110 Ind. 127, 67 Blair v. Curry, 150 Ind. 99, 47, ,167, 176, 303, 305, 308, 309 Blanchard v. Jones, 101 Ind. 542, 362 Bledsoe v. Rader, 30 Ind. 354, 405 Blemel v. Shattuck, 133 Ind. 498, 368 Bloomfield R. Co. v. Vanslike, 107 Ind. 480, 408. Blough V. Parry, 144 Ind. 463, 106, 284 Blount V. Rick, 107 Ind. 238, 34 Board, etc., v. Allman, 142 Ind. 573, 341, 359, 414, 415, 416, 417, 418, 419, 421 V. Benson, 83 Ind. 469, 31, 32 V. Binford,70Ind. 208, 124 V. Blake, 21 Ind. 32, 384 V. Bonebrake, 146 Ind. 311, no, 353, 359, 422 V. Brown, 14 Ind. 191, 88, 343, 392 V. Burford, 93 Ind. 383, 183 v., Byrne, 67 Ind. 21, 195 Board, etc., v. Castetter, 7 Ind. App. 309, 186, 392 V. Center Tp., 105 Ind. 422, 320, 345 V. Chipps, 131 Ind. 56, 205, 404 V. City of Terre Haute, 147 Ind. 134, 147 V. Cole, 8 Ind. App. 485, 353 V. Davis, 136 Ind. 503, 388 V. Dombke, 94 Ind. 72, 400 V. Donch, 6 Ind. App. 337, 351, 352, 353 V. Ft. Wayne, etc., Co., 17 Ind. App. 436, 188 V. Fraser, 19 Ind. App. 520, 207 V. FuUen, 111 Ind. 410, 388 V. Hammond, 83 Ind. 453, 366 V. Hill, 115 Ind. 316, 173 V. Huffman, 134 Ind. 1, 43, 47 V. Karp, 90 Ind. 236, 174 V. Kyle, 137 Ind. 421, 93 V. Legg, llOInd. 479, 65 V. Logansport, etc., Co., 88 Ind. 199, 324, 378, 380, 410 V. Pershing (Ind. App.), 53 N. E. Rep. 297, 215 V. Pidge, 5 Ind. 13, 186 V. Pollard, 147 Ind. 297, 94 V. Spitler, 13 Ind. 235, 184, 380 V. State, 147 Ind. 476, 184, 366, 375 V. Tichenor, 129 Ind. 562, 57, 205, 405, 406 V. Trotter, 19 Ind. App. 626, 204 V. Vurpillat, 14 Ind. App. 311, 154 191 299 Boehme v. Roll, 51 N. J. Eq.'541,' 416 Bogart V. City of New Albany, 1 Ind. 38, 92 Bolin V. Simmons, 81 Ind. 92, 193 BoUenbacher v. Whisnand, 148 Ind. 377, 135, 151, 327, 328 Bonfoy v. Goar, 140 Ind. 292, 107, 368 Bonnel v. Shirley, 131 Ind. 362, 273, 274 Booher v. Goldsborough , 44 Ind. 490, 349 Boon V. Bowers, 30 Miss. 276, 419 Booth V. Cottingham, 126 Ind. 431 129 Boots v'. Griffith, 97 Ind. 241, 29, 177 Borchua v. Sayler, 90 Ind. 439, 375, 376 V. Huntington, etc., Assn., 97 Ind. 180, 31 Borton v. Brines-Chase, 175 Pa. St, 209, 416 Bosseker v. Cramer, 18 Ind. 44, 68 Bostwick V. Bryant, 113 Ind 448, 185 Bothwell V. Milliken, 104 Ind. 162, 361, 368 Bowen v. McDougle, 7 Ind. 414, 132 XVI TABLK OF CASES. [iSe/erereces are to Pages. "i Bowen v. Pollard, 71 Ind. 177, 4 V. Stewart, 128 Ind. 507, 357 Bower v. Bower, 146 Ind. 393, 76 Bowlus V. Phenix Ins. Co., 133 Ind. 106, 361 Bowman v. Simpson, 68 Ind. 229, 329 Boyce v. Graham, 91 Ind. 420, 31, 46, 81, 173 Boyd V. Brazil, etc.. Coal Co., 49 N. B. Kep. 797, 101, 108 V. Caldwell, 95 Ind. 392, 394 V. Pfeifer, 95 Ind. 599, 190 V. Schott, 152 Ind. 161, 317, 318 Boys V. Simmons, 72 Ind 593, 58, 206, 410, 412 Bozarth v. McGillicuddy, 19 Ind. App. 26, 102, 392 Bozeman v. Cale, 139 Ind. 187, 183, 225, 230, 235, 325 Bradley, Ex parte, 48 Ind. 548, 82 Bradley, Holton & Co. v. Whicker (Ind. App.), Nov. 29, 1899, 38 Bradway v. Waddell, 95 Ind. 170, 35 Bragg V. Board, 34 Ind. 405, 184 Branch v. Faust, 115 Ind. 464, 57, 205, 405, 407 Brandt v. State, 17 Ind. App. 311, 391 Branham v. Jolinson, 62 Ind. 259, 213, 218, 219, 246, 333 Brannock v. Stocker, 76 Ind. 573, 323 Branson v. Studebaker, 133 Ind. 147, 84, 93, 97, 98, 104, 105, 106, 108, 411 Bray v. Franklin, etc., Co., 68 Ind. 6, 274 Breedlove v. Bundy, 96 Ind. 319, 391 Breidert v. Kruger, 76 Ind. 55, 94 Brewington v.Lowe,l Ind. 21, 164, 216 Breyfogle V. Stottsenberg, 148 Ind. 552, 180, 192, 208 Bright V. State, 90 Ind. 343, 406 Brighton v.White,128 Ind.320, 102, 103 Bristor v. GalvJn, 62 Ind. 352, 48, 412 Brittenham v. Robinson, 18 Ind. App. 502, 66 V. Robinson, 54 N. E. Rep. 133, 318 Brock V. State, 85 Ind. 397, 39 Broden v. Thorpe Block, etc., Co., 20 Ind. App. 684, 263 Bronnenberg v. Board, 41 Ind. 502, 121 V. O'Bryant, 139 Ind. 17, 107 Brooks V. Doxey, 72 Ind. 327, 215, 218 Brow V. Levy, 3 Ind. App. 464, 395 V. State, 103 Ind. 133, 61 Brown v. Anderson, 90 Ind. 93, 187 V. Brown, 73 Ind. 47, 167 V. Critchell, no Ind. 31, 354 V. Goble, 97 Ind. 8fi, 91 V. Grove, 116 Ind. 84, 66 Brown v. Ogg, 85 Ind. 234, 187 V. Ohio, etc., R. Co., 135 Ind. 587, 27, 28 V. Ohio, etc., R. Co., 138 Ind. 648, ^ 353 V. Osborne, 1 Blackf., 32 note, 313 V. Owen, 94 Ind. 31, 400 V. State, 147 Ind, 328, 106, 122 V. Trexler, 132 Ind. 106, 147, 198 Browning v. McCracken, 97 Ind. 279, 119, 137, 140, 152 Brownlee v. Kenneipp, 41 Ind. 216, 61 Bruce v. Smith, 44 Ind. 1, 163 V. State, 87 Ind. 450, 45 V. State, 141 Ind. 464, 45 Brunker v. Cummins, 133 Ind. 443, 366, 370 Brunson v. Henry, 152 Ind. 310, 348, 353, 355, 393 Bryan v. Scholl, 109 Ind. 367, 187 Bryant v. State, 106 Ind. 549, 400, 407 V. Stout, 16 Ind. App. 380, 204 Buchanan v. Berkshire L. Ins. Co., 96 Ind. 510, 117, 151, 328 V. Hubbard, 119 Ind. 187, 184 V. Logansport, etc., Co., 71 Ind. 265, 265 V. Milligan, 125 Ind. 332, 126, 262, 352, 385 V. State, 106 Ind. 251, 410 Buck V. Hughes, 127 Ind. 46, 63 Buckinghouse v. Gregg, 19 Ind. 401, 184, 185 Buckner v. Spaulding, 127 Ind. 229, ■ 37 Buegnot v. State, 11 Ind. App. 620, 74 Buell V. State, 69 Ind. 125, 142, 248 Bundy v. Pool, 82 Ind. 502, 57, 205, 406 Bunnell v. Peet, 123 Ind. 436, 389 Buntin v. Hooper, 59 Ind. 589, 158, 300, 301 Burdick v. Hunt, 43 Ind. 381, 47 Burgett V. Bothwell, 86 Ind. 149, 345 Burk V. Andis, 98 Ind. 59, 35 V. Howard, 15 Ind. 219, 255 V. Simonson, 104 Ind. 173, 226, 245 Burkham v. Burk, 96 Ind. 270, 365 Burkhart V. Gladish, 123 Ind. 337, 404, 407 Burkam v. McElfresh, 88 Ind. 223 268 Burke v. State, 47 Ind. 528, 331 Burkett v. Holman, 104 Ind. 6, 395, 408 Burnett v. Carry, 42 Ind. 272, 351 TABLE OF CASES. XVll [_Beferences are to Pages.] , Burnett v. Milnes, 148 Ind. 230, 61, 181, 277, 392 Burns v. Barrenfield, 84 Ind. 43, 392 V. Fox, 113 Ind. 205, 393 Burst V. State, 88 Ind. 341, 12, 156, 212 Burt V. Andis, 98 Ind. 59, 392 V. Hoettinger, 28 Ind. 214, 125, 250 Burton v. Burton, 28 Ind. 342, 17, 265, 266 V. Ferguson, 69 Ind. 486, 23, 315 V. Reeds, 20 Ind. 87, 266 Buscher v. City of Lafayette, 8 Ind. App. 590, 94 V. Knapp, 107 Ind. 340, 160 V. Scully, 107 Ind. 426, 399 Busenbark v. Clements, 53 N. E. Rep. 665, 192, 209 Bush V. Barkman, 15 Ind. App. 407, 80 Butler V. State, 97 Ind. 373, 9, 253 V. Thornburgh, 141 Ind.-152, 6,26 Butt V. Butt, 118 Ind. 31, 21, 283, 361, 368 Butterfield v. Davenport, 84 Ind. 590 35 Bybee v. State, 94 Ind 443, 283 Byram v. Galbraith, 75 Ind. 134, 20 Byrum v. Henderson, 151 Ind. 102, 359, 420, 421 c Cain V. Goda, 94 Ind. 555, 65, 183, 366 Calvert v. State, 91 Ind. 473, 27, 45, 79, 192 Campbell v. Bowen (Ind. App.), 53 N. E. Rep. 656, 38, 43 v. Fogg, 132 Ind. 1, 107 V. Horner, 12 Ind. App. 86, 136, 139, 152 v. Hunt, 104 Ind. 210, 367 V. Nebeker, 58 Ind. 446, 361 V. State, 3 Ind. App. 206, 34 V. State, 148 Ind. 527, 4, 182, 279, 296, 361 Campton v. State, 140 Ind. 442, 46 Cannelton, etc., Co. v. Burkett, 13 Ind. App. 277, 207 Capron v. State, 11 Ind. App. 95, 73, 400 Carlisle v. State, 32 Ind. 55, 84 Carmel, etc., Co. v. Small, 150 Ind. 427, 211,357,377,409 Carmichael v. Adams, 91 Ind. 526, 103, 104 Carmon v. State, 18 Ind. 450, 189 Carnahan v. Schwab, 127 Ind. 507, 209 ii — App. Practice. Carpenter v. Reynolds, 58 Wis. 666, 114 V. Russell, 129 Ind. 571, 414, 418 Carr v. Carr, 137 Ind. 232, 207 V. Eaton, 42 Ind. 385, 60 Carriger v, Kennedy, 134 Ind. 107, 20, 285 Carroll v. Green, 148 Ind. 362, 107 Oarrothers v. Carrothers, 107 Ind. 630 394 Carter v. Carter, 101 Ind. 450, 399 v. Ford Plate Glass Co., 85 Ind. 180, 62, 63 Carver v. Carver, 115 Ind. 539, 17, 208, 266, 385, 409 v. Louthain, 38 Ind. 530, 414, 418 Case v. Case, 137 Ind. 526, 214, 215, 217, 218, 332 v. Nelson, — Ind. App. — , 52 N. E. Rep. 176, 9, 135, 140, 251 Cash V. Auditor, 7 Ind. 227, 186 Cashman v. Brownlee, 128 Ind. 266, • 394, 395 easily v.' State, 32 Ind. 62, 407 Gates v. Thayer, 93 Ind. 156, 59, 60 Caywood v. Medsker, 84 Ind. 520, 418 Center Tp. v. Board, 110 Ind. 579, 351, 352,395 Center S. Tp. v. State, 20 Ind. App. 312, 3, 4, 183, 279, 297, 309, 317, 341, 358, 359, 415,417, 420, 421 Central U. Tel. Co. v. State, 110 Ind. 203, 39, 121, 153, 265 Cerealine Mfg. Co. v. Bickford, 129 Ind. 436, 090,391 Chambers v. Kyle, 67 Ind. 206, 413, 414 Champ V. Kendrick, 130 Ind. 545, 114 323 Chandler v. State, 141 Ind. 106, 30, 32, 33, 54, 201, 404 Chaplin v. Sullivan, 128 Ind. 50, 71 Chapman v. Elgin, 11 Ind. App. 632, 90 v. Jones, 149 Ind. 434, 284, 345 Chicago, etc., R. Co. v. Barnes, 116 Ind. 126, 368 V. Cason, 151 Ind. 329, 87, 42, 43 v. Champion, 9 Ind. App. 510, 73, 74, 399 V. Daily, 18 Ind. App. 308, 405; 407, 409 V. Fenn, 3 Ind. App. 250, 365 V. Hammond, etc., R. Co., 151 Ind. 577, 354 V. Hedges, 105 Ind. 398, 65 V. Hunter, 128 Ind. 213, 21, 283, 392, 393 XVlll TABLE OF CASES. {References are to Pages.'] Chicago, etc., R. Co. v. Jones, 103 Ind. 396, 393 V. McBeth, 149 Ind. 78, 6, 7, 26, 116, 118 V. McDaniel, 134 Ind. 166, 63 V. Modesitt, 124 Ind. 212, 58 V. Smith, 5 Ind. App. 262, 188 V. St. Clair, 144 Ind. 371, 193 V. Sutton, 130 Ind. 405, 58, 412 V. Towle, 10 Ind. App. 540, 95 V. Wolcott, 141 Ind. 267, 37, 177 Chicago, etc., Terminal Co. v. Eggers, 147 Ind. 299, 48 Childers v. First Nat'l Bank, 147 Ind. 430, 65, 202 Ct^ildress v. Callender, 108 Ind. 394 28 35 Chissom v. Barbour, 100 Ind. 1, 318 Choen v. State, 85 Ind. 209, 189, 397, 398, 399 Chrisman v. Tuttle, 59 Ind. 155, 187 Cicero, etc.j Co. v. Craighead, 28 Ind. 274, 185 Cincinnati, etc., E. Co. v. Case, 122 Ind. 310, 174 V. Chennoweth, — Ind. App. — , 54 N. E. Rep. 403, 68, 414, 416 V. Clifford, 113 Ind. 460, 185 V. Cregor, 150 Ind. 625, 36, 59 V. Darling, 130 Ind. 376, 68 V. Gaines, 104 Ind. 526, 365 V. Grames, 8 Ind. App. 112, 41, 94, 186 V. Huncheon, 16 Ind. 436, 120, 121 V. Leviston, 97 Ind. 488, 43, 44 V. Madden, 134 Ind. 462, 69 Citizens', etc., Co. v. Harris, 108 Ind. 392, 128, 129 Citizens', etc., R. Co. v. Hobbs, 15 Ind. App. 610, 175 V. Robbins, 144 Ind. 671, 24, 71, 348, 355, 356 V. Stoddard, 10 Ind. App. 278, 404 V. Willoeby,134 Ind. 563, 57, 407, 409 V. Union Trust Co., 19 Ind. App. 402, 179, 269, 270, 285, 288 Citizens' St. R. Co. v. Heath, — Ind. — , Dec. 22, 1899, 23, 315 Citizens' State Bank v. Adams, 91 Ind. 280, 392, 393 V. Julian (Ind.), 54 N. E. Rep. 390,- 40, 366 City of Alexandria v. Young, 20 Ind. App. 672, 66 City of Anderson. V. Neal, 88 Ind. 317, 274 City of Bedford v Neal,148 Ind.425, 348 City of Bloomington v. Phelps, 149 Ind. 596, 3, 176, 808, 309 City of Bluffton v. McAffee (Ind. App.), 53 N. E. Rep. 1058, 70, 355 City of Columbus v. Strassner, 138 Ind. 301, 175 City of Crawfordsville v. Braden, 130 Ind. 149, 183, 188, 189 V. Johnson, 51 Ind. 397, 25, 349, 350 City of Delphi v. Lowery, 74 Ind. 520, 28 City of Elkhart V. Wickwire, 87 Ind. 77, 366 V. Witman, 122 Ind. 538, 173, 400 City of Evansville v. Martin, 103 Ind. 206, 405 V. Senhenn, 151 Ind. 42, 24, 345, 414, 415, 417, 418, 419, 420, 421 V. Thacker, 2 Ind. App. 370, 73, 74 City of Frankfort V. Coleman, 19 Ind. App. 368, 70 City of Greensburgh v. Corwin, 58 Ind. 518, 92 City of Hammond v. New York, etc., R. Co., 5 Ind. App. 526, 100 City of Huntington v. Breen, 77 Ind. 29, 2 V. Burke, 139 Ind. 162, 108 V. Cast, 149 Ind. 255, 188 V. Hawley, 120 Ind. 502 366 ' V. McClurg, — Ind. App. — , 53 N. E. Rep. 658, 35 City of Indianapolis v. Consum- ers', etc., Co., 140 Ind. 246, 99, 100, 173 . V. Fairehild, 1 Ind. 315, 92 V. McAvoy, 86 Ind. 587, 185 V. Navin, 151 Ind. 139, 92,99,293,294 V. Patterson, 112 Ind. 344, 157 V. Turner (Ind. App.), Oct. 27, 1899, 309 City of Jeffersonville v. Tomlin, 7 Ind. App. 681, 114, 115, 323 City of Lafayette v. Allen, 81 Ind. 166, 20 Citv of Logansport v. Carroll, 95 "Ind. 156, ' 366 V. Humphrey, 106 Ind. 146, 354 V. Shirk, 88 Ind. 563, 418 City of Mt. Vernon v. Hohen, — Ind. App. — , 53 N. E. Rep. 654, 70 City of New Albany v. Lines, 21 Ind. App. 380, ' 50 V. McOulloch, 127 Ind. 500, 62 V. White, 100 Ind. 206, 59 City of Plymouth v. Fields, 125 , Ind . 323, 37 V. Milner, 117 Ind. 324, 124 TABLE OF CASES. XIX \_References are to Pages.'] City of Richmond v. Davis, 103 Ind. 449, 389 Citv of Seymour v. Cummins, 119 "Ind. 148, 31,173 City of Siielbyville v. Phillips, 149 Ind. 552, 129 City of South Bend v. Thompson, 19 Ind. App. 19, 12, 181, 192, 201, 215, 227, 299, 331 City of Terre Haute v. Blake, 136 Ind. 636, 92, 105 V. Fagan, 21 Ind. App. 371, 181 City of Warsaw v. Dunlap, 112 Ind. 576, 69 Clanin v. Fagan, 124 Ind. 304, 34, 35 Clapp V. Allen, 20 Ind. App. 263, 220 Clark V. Hillis, 134 Ind. 421, 356 V. Shaw, 101 Ind. 563, 121 V. Wright, 67 Ind. 224, 163, 204, 303, 312, 314, 331 Clawson v. Chicago, etc., E. Co., 95 Ind. 152, 361 Clayborn v. Tompkins, 141 Ind. 19, 106 Clayton v. Blough, 93 Ind. 85, 300 V. State, 100 Ind. 201, 62, 361 Clear Creek Tp. v. Eittger, 12 Ind. App. 355, 220, 225 Cleland v. Applegate, 8 Ind. App. 499, . 206, 207 Clemans v. Buffenbarger, 106 Ind. 16, 394 Clester v. Gibson, 15 Ind. 10, 120 Cleveland, etc., Co. v. Monroe, 11 Ind. App. 423, 201 Cleveland, etc., E. Co. v. Closser, 126 Ind. 348, 114, 119, 123 V. Davis, 10 Ind. App. 342, 69, 82, 402 V. Edwards, etc., Co., 20 Ind. App. 87, 408 V. Hudleston, 151 Ind. 540, 24 V. Newell, 104 Ind. 264, 367 V. Qaillen, — Ind. App. — , 53 N. E. Rep. 1024, 70 V. Tyler, 9 Ind. App. 689, 409 V. Wynant, 100 Ind. 160, 69 V. Wynant, 134 Ind. 681, 353 Cline V. Gould, 17 Ind. App. 647, 270, 271, 326, 336 V. Lindsay, 110 Ind. 337, 4, 65, 364, 367 Clinton Tp. v. DeHaven, ~ Ind. App. — , 53 N. E. Rep, 650, 124 Close V. Pittsburgh, etc., Co., 150 Ind. 560, 4, 31, 32, 33, 53, 54, 182, 183, 296 Cluck V. State, 40 Ind. 263, 51, 52, 64, 184, 317 Cluggish V. Koo'ns, 15 Ind. App. . 599, 186, 354 Coan V. Grimes, 63 Ind. 21, 27 Coats V. Gordon, 144 Ind. 19, 345 Cobb V. Taylor, 133 Ind. 605, 273, 283 Coburn v. Smart, 53 Cal. 742, 215 V. Whitaker, etc., Co., 12 Ind. App. 340, 154, 190, 225, 233, 234, 327 Coffin V. State, 144 Ind. 578, 362 Coffman v. Reeves, 62 Ind. 334, 5, 29, 19S Cohoon V. Fisher, 146 Ind. 583, 208, 414, 415, 416 Cochnowerv. Cochnower, 27 Ind. 253, 58, 412 Colchen v. Ninde, 120 Ind. 88, 79, 82, 150, 323, 324, 404 Cole V. Alien, 51 Ind. 122, 320 V. Franks, 147 Ind. 281, 127, 128, 151, 154, 225, 230, 234, 325 V. State, 131 Ind. 591, 389 Colee V. State, 75 Ind. 511, 27, 31, 32 Coleman v. Dobbins, 8 Ind. 156, 184 V. Floyd, 131 Ind. 330, 103 V. State, 111 Ind. 563, 399 Colglazier v. Colgla.zier, 124 Ind. 196, 367 Colles V. Lake Cities, etc., R. Co. (Ind. App.), 53 N. E. Rep. 556, 194 Collins V. Cornwell, 131 Ind. 20, 31 V. State, 58 Ind. 5, 185 V. U. S.ExpressCo,,27 Ind. 11, 183 Comegys v. Emmerick, 134 Ind. , 148, 409 Compton v; State, 89 Ind. 338, 32 Conaway v. Ascherman, 94 Ind. 187, 14, 245 V. Conaway, 10 Ind. App. 229, 173 Conduitt V. Eyan, 3 Ind. App. 1, 65 Conkey v. Conder, 137 Ind. 441, 176, 177, 319 Conley v. Grove, 124 Ind. 208, 36] Conner v. Conner, 29 Ind. 48, 389 V. Town of Marion, 112 Ind. 517, 52, 66, 133, 134 Conrad y. State, 144 Ind. 290, 63, 396 Consumers', etc., Co. v. Hunt- singer, 14 Ind. App. 156, 283 Conway v. State, 118 Ind. 482, 400 Cook Brewing Co. v. Ball (Tnd. App.), 53 N. E. Rep. 1002, 330 v. Citizens' Nat'l Bank, 73 Ind. 256, 118 v. Quick, 127 Ind. 477, 107 Cooper V. Cooper, 86 Ind. 75, 269, 297 V. Ellis, 3 Ind. App 142, 66 V. State, 120 Ind. 377, 62 67 XX TABLE OF CASES. IBeferences are to Pages.'] Copeland v. Summers, 138 Ind. 219, 409 Corbin v. Thompson, 141 Ind. 312, 98, 95, 97, 105 Cordell v. State, 22 Ind. 1, 183 Cornell v. Hallett, 140 Ind. 634, 37,42 Corporation of Bluffton v. Silver, 63 Ind. 262, 380 Cory V. Silcox, 5 Ind. 370, 398 V. Cory, 86 Ind. 56/, 203 Cottrell V. Cottrell, 81 Ind. 87, 400 Cottrell V. Shadley, 77 Ind. 348, 65 Courtney V. Clinton, 18 Ind. App. 620, 71 Cox V. Alberts, 78 Ind. 241, 408 V. Baker, 113 Ind. 62, 79 V. Stout, 85 Ind. 422, 31 Crabb v. Orth, 133 Ind. 11, 107 Craven v. Chambers, 55 Ind. 5, 119, 324 Crawford v. Anderson, 129 Ind. 117, 2, 3, 182, 183, 297 Creek v. State, 24 Ind. 151, 62 Crist V. Jacoby, 10 Ind. App. 688, 204 v. Wayne, etc., Assn., 151 Ind. 245, 14, 235, 245, 325 Cromie v. Board, etc., 71 Ind. 208, 414, 418 Cross V. Haisley, 2 Ind. App. 23, 2 Crowder v. Reed, 80 Ind. 1, 64 Crowell V. Jaqua, 15 N. E. Eep. 242, 343 Crum v. State, 148 Ind. 401, 415, 420 Crumrine v. Estate of Crumrine, 14 Ind. App. 641, 67 Culver V. Marks, 122 Ind. 554, 366 Cummings v. Girton, 19 Ind. App. 248, 71, 356, 382, 404 Ouneo V. Bessoni, 63 Ind. 524, 96 Cunningham v. Jacobs, 120 Ind. 306, 184 Currier v. Elliott. 141 Ind. 394, 353, 361 Cutsinger v. Nebeker, 58 Ind. 401, 351, 352 D Daggett v. Flanagan, 78 Ind. 253, 82, 392, 402 Dailey v. Deinhart (Ind. App.), 53 N. E. Eep. 1135, 234 Daily v. State, 10 Ind. 536, 188 Dallin v. Mclvor, 140 Ind. 386, 92, 160 Danenhoffer v. State, 79 Ind. 75, 284 Daniels v. McGinnis, 97 Ind. 549, 21 Dant V. State, 106 Ind. 79, 189 Dantz V. State, 87 Ind. 398, 396, 397, 398, 407 Darr v. State, 82 Ind. 11, 248 Daugherty v. Brown, 21 Ind. App. 115, 16, 154 Daunhauer v. Hilton, 82 Ind. 531, 202 Davis V. Davis, 36 Ind. 160, 119 V. Davis, 145 Ind. 4, 67 V. Krug, 95 Ind. 1, 355, 421 V. Perry, 41 Ind. 305, 4 V. State, 35 Ind. 496, 63 V. Talbot, 149 Ind. 80, 317, 405 V. Union Trust Co., 150 Ind. 46, 3, 47, 48, 167, 176, 303, 305, 310 Davis, etc., Co. v. Booth, 10 Ind. App. 364, 352 Dawson v. Eads, 140 Ind. 208, 404 V. Hemphill, 50 Ind. 422, 77 V. State, 52 Ind. 478, 91 Day V. Day, 100 Ind. 460, 128 V. School City of Huntington, 78 Ind. 280, 269, 327 Deal V. State, 140 Ind. 354, 68, 69, 141 Dean v. Reynolds & Co., 12 Ind. App. 97, 90 V. State, 147 Ind. 215, 407 Debs V. Dalton, 7 Ind. App. 84, 2, 190, 411 Deford v. TJrbain, 42 Ind. 476, 273 DeHart v. Aper, 107 Ind. 460, 402 V. Board, 143 Ind. 363, 43, 169, 177 v. Etnire, 121 Ind. 242, 62, 402 Dehler v. State (Ind. App.), 53 N. E. Rep. 850, 97, 266 Deig V. Morehead, 110 Ind. 451, 366 Deitz V. State, 123 Ind. 85, 187 Delawter v. Sand Creek, etc., Co., 26 Ind. 407, ' 185 Delhaney v. State, 115 Ind. 499, 34, 64, 145 Demaree v. Johnson, 150 Ind. 419, 348 Denke-Walter v. Loeper, 142 Ind. 657, 246 Denney v. State, 144 Ind. 503, 184, 186, 188, 415, 416, 417 DePauw University v. Smith, 11 Ind; App. 313, 40 Depew V. Board, etc., 6 Ind. 8, 186 Detrick v. McGlone, 46 Ind. 291, 400 Devay v. Dunlap, 7 Ind. App. 690, 205 Deweese v. Hutton, 144 Ind. 114, 4, 182, 296 Dick v. Mullins, 128 Ind. 365, 302, 335 Dickensheet v. Kaufman, 29 Ind. 154, 163 Dickey v. Kalfsbeck, 20 Ind. App. 290, 404, 406, 407, .408 V. Shirk, 128 Ind. 278, 367 TABUE OF CASES. XXI [Beferences are to Pages."] Dickson v. Rose, 87 Ind. 103, 27 Diggs V. Way (Ind. App.), 54 N. E. Rep. 412, 103, 407, 409, 410 Dillman v. Dillman, 90 Ind. 585, 140 Dillon V. Bell, 9 Ind. 320, 182 Diltz V. Spahr, 16 Ind. App. 591, 393 Dinwiddle v. State, 103 Ind. 101, 363 Dipert v. Jones, 4 Ind. App. 158, 353 Doble V. Brown, 20 Ind. App. 12, 155, 190, 200, 218, 246, 333 Doekerty v. Hutson, 125 Ind. 102, 69 Doctor V. Hartman, 74 Ind. 221, 411 Dodge V. Dunham, 41 Ind. 186, 356 V. Gaylord, 53 Ind. 365, 352 V. Morrow, 14 Ind. App. 534, 76, 77, 100 Doe V. Owen, 2 Blaekf. 452, 318 Doles V. State, 97 Ind. 555, 63 Dotaon v. Dotson, 13 Ind. App. 436, 408 Dougherty v. Brown, 21 Ind. App. 115, 231, 232, 233, 234, 241, 242, 243 Douglass V. County of Pike, 101 TJ. S. 677, 421 Dowdell V. State, 58 Ind. 333, 183 Dowell V. State, 97 Ind. 310, 77 V. Talbott Paving Co., 138 Ind. 675, 90, 99, 100, Downs V. Opp, 82 Ind. 166, 133 Drake v. State, 145 Ind. 210, 11, 43, 47, 317, 320, 345 Drew V. State, 124 Ind. 9, 61, 62, 72 V. Town of Geneva, 150 Ind. 662, 668, 38, 43 Driver v. Driver (Ind.), 54 N. E. Rep. 389, 54, 55, 318 Duckwall V. Kisner, 136 Ind. 99, 356 Duckworth v. Hosier, 129 Ind. 458, 91, 105, 124 Dudley v. Pigg, 149 Ind. 363, , 31, 169, 173 Dugan V. State, 125 Ind. 130, 94 Dugger V. Hicks, 11 Ind. App. 374, 100 Duggins V. State, 66 Ind. 350, 395 Duncan V. Gainey, 108 Ind. 579, 137 Dunn V. Dunn, 149 Ind. 424, 283 Durbin v. Haines, 99 Ind. 463, 22, 317 Durham v. State, 117 Ind. 477, 92 Du Souchet v. Dutcher, 113 Ind. 249, 3, 57, 67, 205, 309, 311, 404, 407 Dutch V. Boyd, 81 Ind. 146, 187 Dutton V. Dutton, 30 Ind. 452, 192 Dye V. State, 130 Ind. 87, 141. 193, 212, 300 Dver V. Board, 84 Ind. 542, 324, 378, 380, 410 E Eagen v. State, 53 Ind. 162, 189 Eaken v. Thompson, 4 Ind. App. 393, ■ 63 Earhartv. Farmers' Creamery, 148 Ind. 79, 191, 207, 300 Easter v. Acklemire, 81 Ind. 153, 245, 262 v. Severin, 78 Ind. 540, 221, 226,297 Eberhart v. Riester, 96 Ind. 478, 58, 408 Bckert v. Binkley, 134 Ind. 614, 5, 174, 191, 196, 301, 354, 355 Eddingfield v. State, 12 Ind. App. 312, 66, 67, 364 Edwards v. Powell, 74 Ind. 294, 202 Eel River R. Co. v. State, 143 Ind. 231, 412 Eel River, etc., Co. v. Topp, 16 Ind. 242, 185 Egan v. Ohio, etc., R. Co., 138 Ind. 274, 11, 12, 179, 180, 288, 329, 330, 336 Ehrisman v. Scott, 5 Ind. App. 596 39 Eighmy v. People, 78 N. Y. 330, 163 Elder v. Sidwell, 66 Ind. 316, 134 Elkhart, etc., R. Co. v. Waldorf, 17 Ind. App. 29, 353 Elliott V. Russell, 92 Ind. 526, 34, 65, 77 V. Stone City Bank, 4 Ind. App. 155, 174 Ellis V. City of Indianapolis, 148 Ind. 70, 314 V. State, 141 Ind. 357, 142, 404, 406 Ellison V. Branstrattor (Ind.), 54 N. E. Rep. 433, 401 V. Rerick, 125 Ind. 396, 8 Elmer v. Marsh, 3 Ind. App. 558, 76 Elmore v. McCrary, 80 Ind. 544, 205 Elwood, etc., 'Co. v. Harting, 21 Ind. App. 408, 405 Emerson v. Opp, 9 Ind. App. 581, 362 Emison v. Shepard, 121 Ind. 184, 78 Enders v. McDonald, 5 Ind. App. 297, 94, 124 England v. Clark, 4 Scam. (111.) 486, 42 Engleman v. Arnold, 118 Ind. 81, 21, 27,40, 46 Bngrerv. Ohio, etc., R. Co., 142 Ind. 618, 361, 369 Epps V. State, 102 Ind. 539, 61 , 361 Erganbright v. Sta>e, 148 Ind. 180, 112, 113, 142 XXll TABLE OF CASES. [Be/e)'e»ces are to Pages.] Ervin v. State, 150 Ind. 332, 183 Eshelman v. Snyder, 82 Ind. 498, 27 Estate of Peden v. Noland, 45 Ind. 354 - 199 Etter V.' Anderson, 84 Ind. 838, 226 V. Armstrong, 42 Ind. 475, 829 Evans v. Browne, 30 Ind. 614, 183 V. Koons, 10 Ind. App. 603, 71 V. Nealis, 87 Ind. 262, 103 V. Schafer, 88 Ind. 92, 8, 32 V. State, 58 Ind. 587, 60 Evanaville, etc., R. Co. v. Hawkins, 111 Ind. 549, 392 V. Barnes, 137 Ind. 306, 4 V. Duncan, 28 Ind. 441, 187 V. Frank, 3 Ind. App. 96, 31, 178 V. Lavender, 7 Ind. App. 655, 195, 206, 207 V. Maddux, 134 Ind. 571, 78, 79, 80, 365 V. Montgomery, 85 Ind. 494, 367 V. Mosier, 114 Ind. 447, 211, 305 V. State, 149 Ind. 276, 60 V. Swift, 128 Ind. 34, 105 V. Weikle, 6 Ind. App. 340, 85 V. Winsor, 148 Ind. 682, 106, 140, 412, 415 Eve V. Eogers, 12 Ind. App. 623, 71 Everly v. State, 10 Ind. App. 15, 9, 253 Ewald V. Coleman, 19 Ind. 66, 121 Ex parte Bradlev, 48 Ind. 548, 82 Kendall, 100 Ind. 599, 128 Kiley & Slattery, 1.35 Ind. 225, 92, 109, 160, 376, 877 Richards, 102 Ind. 260, 122, 128 Sweeney, 131 Ind. 81, 9, 86, 91, 95, 98, 104, 251 Walton, 79 Ind. 600, 123 Express Co. v. Rawson, 106 Ind. 215, 406 Fairbanks v. Meyers, 98 Ind. 92, 21 Fall V. Hazelrigg, 45 Ind. 576, 30 Falley v. Gribling, 128 Ind. 110, 6 Fargo & Co. v. Cutshaw, 12 Ind. App. 892, 393 Farman v. Lauman, 78 Ind. 568, 28 Farmers', etc., Assn. v. Rector (Ind. App.), 63 N. E. Rep. 297, 401 Farrel v. State, 7 Ind. 345, 113 Farrell v. State, 85 Ind. 221, 13, 156, 328 Farwell Co. v. Newman, 17 Ind. App. 649, 154, 225, 230, 234, 325 Fatoutv. Board, etc., 102 Ind. 223, 389 Faun v. Hull, 186 Ind. 389, 297 Feder v. Field, 117 Ind. 386, 99, 208, 209, 210, 211, 305, 335, 336, 409 Fehn v. State, 8 Ind. App. 568, 27, 45 Fell V. Mulier, 78 Ind. 507, 361 Fellenzer v. Vanvalzah, 96 Ind. 128, 175, 183 Fenton v. State, 100 Ind. 598, 189 Ferguson v. Despo, 8 Ind. App. 623, 181, 192, 331 V. Hull, 136 Ind. 839, 4, 182, 206, 299, 405, 406, 407 Fertichv. Mitchener, 111 Ind. 472, 346, 347 Field v. Brown, 146 Ind. 293, 108 V. Burton, 71 Ind. 380, 226, 297 V. Holzman, 93 Ind. 206, 98 Fifth Ave., etc.. Bank v. Cooper, 19 Ind. App. 13, 193 Figart v. Halderman, 69 Ind. 424, 8 309 Pinley v. Cathcart, 149 Ind. 470, ' 24, 106, 346 Fireman's, etc., Co. v. Dunn (Ind. App.), 53 N. E. Rep. 251, 29 First Nat'l Bank v. Colter, 61 Ind. 153 28 V. First Nat'l Bank, 76 Ind. 561, 341, 349 V. Gibbons, 7 Ind. App. 629, 78 V. Root, 107 Ind. 224, 409 Fischer V. Holmes, 123 Ind. 525, 78 Fiscus V. Turner, 125 Ind. 46, 51 Fisher v. Fisher, 131 Ind. 462, 301 V. Purdue, 148 Ind. 323, 129 V. State, 2 Ind. App. 365, 65 Fisse V. Katzentine, 93 Ind. 490, 391 Fitzgerald v. Goff, 99 Ind. 28, 68 Fitzmaurice v. Puterbaugh, 17 Ind. App. 318, 34 Fitzpatrick v. Papa, 97 Ind. 42, 82, 186, 402 Flaggv. Sloan, 16 Ind. 482, 120 Fleenor v. Driskill, 97 Ind. 27, 119 Fleming V. Yost, 137 Ind. 95, 400 Fletcher v. Waring, 137 Ind. 159, 2, 7, 26, 81 Flora V. Russell, 138 Ind. 163, 356 Florer v. State, 188 Ind. 458, 203, 204 Flory V. Wilson, 83 Ind. 391, 116, 148, 150, 327 Ford V. Booker, 53 Ind. 395, 2, 7 V. Ford, 110 Ind. 89, 112 Forsythe v. City of Hammond, 142 Ind. 505, 16, 235, 236, 241, 244, 245, 833, 372, 873, 374 Forsyth v. Wilcox, 143 Ind. 144, 38, 76, 202, 299 TABLE OF CASES. XXIH {Beferences are to Pages."] Fort Wayne, etc., E. Co. v. Beyerle, 110 Ind. 100, 34 Foster v. Lindley, 20 Ind. App. 155, 7, 113, 324 Fouty V. Morrison, 73 Ind. 333, 130 Frank v. Evansville, etc., R. Co., Ill Ind. 132, 418 V. Grimes, 105 Ind. 346, 29 Frazer v. State, 106 Ind. 471, 187 Freeman v. Hutchinson, 15 Ind. App. 639, 66 Friedline v. State, 93 Ind. 366, 174 Fruchy v. Eagleson, 15 Ind. App. 81, 73, 74 Frybarger v. Andre, 106 Ind. 337, 64 Funk V. Eentchler, 134 Ind. 68, 204, 345 Furnace v. State,- — Ind. — , 54 N. E. Eep. 441, 414, 419, 420 G Gaar v. Millikan, 68 Ind. 208, 357 Galentine v. Brubaker, 147 Ind. 458, , 135 V .Woods, 137 Ind. 532, 136, 327, 328 Gallagher v. Himelberger, 57 Ind. 63, 361 Gallimore v. Blankenship, 99 Ind. 390 31 Galvin v. Britton, 151 Ind. 1, 9, 406 V. State, 93 Ind. 550, 361 Gandolpho v. State, 33 Ind. 439, 397 Garard v. Garard, 135 Ind. 15, 90, 102, 103, 361 Gardner v. State, 94 Ind. 489, 61 V. Stover, 43 Ind. 356, 273, 276 Garner v. Garner, 38 Ind. 139, 161, 162, 331 Garr, Scott, etc., Co. v. Schaffer, 139 Ind. 191, 356 V. Wilson, 21 Ind. App. 91, 50 Garrett v. State, 149 Ind. 264, 51 Garrigas v. Board, etc., 53 N. E. Rep. 776, 178 Garrison v. State, 110 Ind. 145, 39 Garside v. Wolfe, 135 Ind. 42, 15, 224, 226 Gaslight, etc., Co. v. City of New Albany, 139 Ind. 660, 219, 247 Gates V. Haw, 150 Ind. 370, 39 V. Newman, 18 Ind. App. 392, 110, 416 Gatling v. Newell, 12 Ind. 118, 349 Geisen v. Eeder, 151 Ind. 529, 28, 129, 168, 175, 405 Geiss V. Franklin Ins. Co., 123 Ind. 172, 79 Gemmill v. State, 16 Ind. App. y4, 97 George v. Brooks, 94 Ind. 274, 366 Gerber v. Friday, 87 Ind. 366, 353 Gheens v. Golden, 90 Ind. 427, 35 Gilbert v. Southern, etc., Co., 62 Ind. 522, 349 Gilpatrick v. Glidden, 82 Me. 201, 113 Gimbel v. Green, 134 Ind. 628, 210, 211 Gipe V. Cummins, 116 Ind. 511, 28 Gish V. Gish, 7 Ind. App. 104, 21,40,43,47,48, 175,283 Glassburn v. Deer, 143 Ind. 174, 107, 191, 196, 302 Glendy v. Lanning, 68 Ind. 142, 59 Glennan v. Margowski, 90 Ind. 150, 122 Glover v. State, 109 Ind. 391, 65, 397, 398 Goben v. Phillips, 12 Ind. App. 629, 407 Goble V. Dillon, 86 Ind. 327, 110 Goldthait v. Cincinnati, etc., E. Co., 143 Ind. 356, 41 Goodwin v. Goodwin, 48 Ind. §84, 137, 346 V. Smith, 72 Ind. 113, 27 v. State, 96 Ind. 550, 400 Goodwine v. State, 5 Ind. App. 63, 97 Goshen, etc., Co. v. City Nat'l Bank, 150 Ind. 279, ' 117 Goss V. Wallace, 140 Ind. 541, 207, 300 Goudy V. Werbe, 117 Ind. 154, 400 Gourley v. Empree, 137 Ind. 82, 12, 192, 227, 299, 331 Graeter v. DeWolf, 112 Ind. 1, 263, 385 V. State, 105 Ind. 271, 404 Grand Eapids, etc., Co. v. Elli- son, 117 Ind. 234, 393 Gray v. Oughton, 146 Ind. 285, 117 V. Eobinson, 90 Ind. 527, 368 v. Singer, 137 Ind. 257, 30, 47, 115, 177, 323 Graybeal v. State, 145 Ind. 623, 33, 54 Green v. Beckner, 3 Ind. App. 39, 66 V. Brown, 146 Ind. 1, 106 V. City of Indianapolis, 25 Ind. 490, 184, 185 Greenwaldt v. May,*127 Ind. 511, 91 Gregory v. Cleveland, etc., Co., 112 Ind. 385, 409 v. Slaughter, 19 Ind. 342, 320 V. Smith, 139 Ind. 48, 14, 220, 226, 230, 235, 236, 241, 242, 245, 305, 325 XXIV TABLE OF CASES. [Meferences are to FagesJ^ Griffee v. Town of Summitville, lOInd.App. 332, 101,108, Griffin v. Pate, 63 Ind. 273, 65 Griffith V. State, 36 Ind. 406, 364 Grimes v. Grimes, 141 Ind. 480, 2, 296 Grover, etc., Co. v. Barnes, 49 Ind. 136, 313, 320, 321 Grubb V. State, 117 Ind. 277, 61, 72, 399, 417, 418, 419 Grusenmeyer v. City of Logans- port, 76 Ind. 549, 185, 186 Guenther v. State, 141 Ind. 593, 45 Guard v. Risk, 11 Ind. 156, 61 Guirl V. Gillett, 124 Ind. 501, 43 Gullett V. Phillips (Ind.), Oct. 11, 1899 362 369 Guy V. Blue, 146 Ind. 629, 20, 283 H Haas V. City of Evansville, 20 Ind. App. 482, 101, 345, 365 Habbe v. Viele, 148 Ind. 116, 79 80 303 Hadley v. Hadley, 82 Ind. 95,' 31, 32 V. Hill, 73 Ind. 442, 150, 220, 257 V. Hood, 94 Ind. 119, 366 Haggart v. Stehlin,137 Ind.43, 284, 304 Hahn v. Behrman, 73 Ind. 120, 219 Hale V. Mathews, 118 Ind. 527, 27, 42 Hall V. Durham, 113 Ind. 327, 124, 312 V. Hall, 42 Ind. 585, 71 V. Hedrick, 125 Ind. 326, 361, 368 V. Stanley, 86 Ind. 219, 27 V. State (Ind. App.), Dec. 19, 1899, 34 Halstead v. Brown, 17 Ind. 202, 41 Ham V. Greve, 41 Ind. 531, 262 Hamilfon v. Burch, 28 Ind. 233, 54 V. Hanneman, 20 Ind. App. 16, 283 V. Love, 152 Ind. 641, 368 V. Shoaf, 99 Ind. 63, 183 Hammond, etc., R. Co. v. Spyzchalski, 17 Ind. App. 7, 78 Hamrick v. Loring, 147 Ind. 229, 31 Henches v. Stephenson, 147 Ind. 498, 27, 40, 45, 46, 47 Haney v. Famsworth, 149 Ind. 453, 53, 130 Hannah v. Dorrell, 73 Ind. 465, 54, 318 Hannan v. State, 149 Ind. 81, 33, 34, 38, 175 Hanover Tp. v. G^nt, 125 Ind. 557, 208 Hardenbrook v. Ligonier, 95 Ind. 70, 92 Hardestv v. Hine, 135 Ind. 72, 389, 392 Hardigree v. Mitchum, 51 Ala. 151, 422 Hardison v. Manns, 20 Ind. App. 404, 59 Harlan v. State, 134 Ind. 339, 277 Harless v. Petty, 98 Ind. 53, 394, 395 Harmon v. Board, etc. (Ind.), 54 N. E. Rep. 105, 414 -Harness v. State, 143 Ind. 420, 178, 276, 277, 279 Harper v. State, 101 Ind. 109, 67 Harris v. Harris, 61 Ind. 117, 58, 206, 410, 412 v. Howe, 129 Ind. 72, 90, 92, 105 V. Rupel, 14 Ind. 209, 66, 67, 68 V. Tomlinson, 180 Ind. 426, 54, 55, 318 Harrison v. Hedges, 60 Ind. 266, 274, 276 V. Stanton, 146 Ind. 366, 106, 140 Harrison Nat'l Bank v. Culbert- son, 147 Ind. 611, 135, 139 Harrod v. Dismore, 127 Ind. 338, 364 V. Rodman, 16 Ind. 241, 185 V. State, 53 N. E. Rep. 777, , 179, 288, 329, 330 Harrow v. Meyers, 29 Ind. 469, 418 Harshman v. Armstrong, 43 Ind. 126, 155, 233, 327 Hart v. Burnett, 15 Cal. 530, 415, 416, 417 V. State, 55 Ind. 599, 188 v. Walker, 77 Ind. 331, 27 Harter v. Eltzroth, 111 Ind. 159, 4 V. Parsons, 14 Ind. App. 431, 207 Hartlep v. Cole, 120 Ind. 247, 262 Harvey v. Fink, 111 Ind. 249, ' 115, 160, 161 V. Huston, 94 Ind. 527, 65 V. State, 80 Ind. 142, 12, 212 V. State, 5 Ind. App. 422, 40 Haskell v. Gallagher, 20 Ind. App. 224, 90 Haskett v. Maxey, 134 Ind. 182, 341, 358, 359, 418, 420, 421 Hatfield v. Cummings, 152 Ind. 280, 354 Hatton V. Jones, 78 Ind. 466, 64 Hanger V. Benua (Ind.), 53 N. E. Rep. 942, 50, 365 Hauk V. State, 148 Ind. 238, 396, 397 Haus V. Jeffersonville, etc., R. Co., 138 Ind. 307, 187 Haverstick v. State, 6 Ind. App. 595, 97 Hawkins v. Hawkins, 28 Ind. 60, 157 V. McDougal, 126 Ind. 544, 12,190, 206, 255,406 V. State, 126 Ind. 294, 265 Hawks V. Mayor, 144 Ind. 343, 129 Hawley v. State, 69 Ind. 68, 260 TABLE OF CASES. XXV [References are to Pages.'] Haynes v. State, 45 Ind. 424, 61 Hays V. City of Vincennes, 82 Ind. 178, 64 V. Johns, 42 Ind. 505, 12, 192, 299 V. Missouri, 120 IT. S. 68, 111 V. Morgan, 87 Ind. 231, 366 V. State, 77 Ind. 450, 206, 403, 406 V. Walker, 90 Ind. 105, 57, 202, 205, 406 V. Wilstack, 101 Ind. 100; 245 Hazleton v. DePriest, 148 Ind. 368, 19, 231, 233, 235, 244 Head v. Doehleman, 148 Ind. 145, 3 4 279 296 361 Heady v. Brown, 151 Ind. 75! 106', 109 Heagy v. Black, 90 Ind. 534, 121 Heath v. State, 101 Ind. 512, 164, 165, 398 Heaton v. Knowlton, 65 Ind. 255, 336 Heckleman v. Rupp, 85 Ind. 286, 285 Hedderick v. State, 101 Ind. 564, 183, 187 Hedrick v. Osborne & Co., 99 Ind. 143, 408' V. Whitehorn, 145 Ind. 642, 6, 7, 26, 174, 392 Heiney v. Garretson, 1 Ind. App. 548, " 201 Heizer v. Kelly, 73 Ind. 582, 29, 173, 174 Heller v. Clark, 103 Ind. 591, 139, 268 Helm V. Bank, 91 Ind. 44, 61,103 Helms V. Wagner, 102 Ind. 385, 27, 28 Helt V. Helt, 152 Ind. 142, 420 Heltonville v. Fields, 138 Ind. 58, 64, 76, 77, 283 . Henderson v. Halliday, 10 Ind. 24, 12, 16, 198, 233, 255 V. McAllister, 141 Ind. 436, 312 V. State, 60 Ind. 296, 363, 403, 406 Hendricks v. Carson , 97 Ind. 245, 306 V. Frank, 86 Ind. 278, 103 Henes v. Henea, 5 Ind. App. 100, 129 Henley V. McNoun, 76 Ind. 380, 81 Henning v. State, 106 Ind. 386, 28, 361 Henry v. Bank of Salina, 9 Hill (N. Y.)535, ■" 415 V. Carson, 96 Ind. 412, 366 V. Stevens. 108 Ind. 281, 409 Henson v. Walts, 40 Ind. 170, 122 Henthorn v. Doan, 1 Blackf. 157, 186 Henwood v. State, 11 Ind. App. 636, 97 Herkimer v. McGregor, 126 Ind. 247, 79 Herrick v. Flinn, 146 Ind. 258, 106 Hessian v. State, 116 Ind. 58, 43 Hesson v. Heck, 88 Ind 449, 366, 370 Hiatt V. Trustees, etc., 152 Ind. 570, 107 Hibbits V. Jack, 97 Ind. 570, 358, 415, 419, 421, 422 Higbee v. Eodeman, 129 Ind. 244, 226, 245 Higgins V. Kendall, 73 Ind. 522, 57, 405 Hilker v. Kelley, 130 Ind. 356, 407 Hill V. Forkner, 76 Ind. 115, 71 V. Jamieson, 16 Ind. 125, 31 V. Newman, 47 Ind. 187, 29 V. Eoach, 72 Ind. 57, 161 V. Starkweather, 30 Ind. 434, 163 Hillenberg v. Bennet, 88 Ind. 540, 139 Hilton V. Mason, 92 Ind. 157, 400 Hinchclifi v. Koontz, 121 Ind. 422, 400 Hines v. Driver, 100 Ind. 315, 66, 67, 115, 358, 359, 402, 413, 416, 417, 418, 419 Hinkle v. Holmes, 85 Ind. 405, 386 Hipes V. Cochran, 13 Ind. 175, 186 V. State, 73 Ind. 39, 187 Hire v. State, 144 Ind. 359, 78 Hizer v. State, 12 Ind. 330, 188 Hoag v. Old People's, etc., Co., llnd. App. 28, 248 Hobb V. Salem Bedford S. Co., — Ind App. — ,53 N. E. Eep. 1063, 148, 324 Hoch V. State, 20 Ind. App. 64, 45 Hockemeyer v. Thompson, 150 Ind. 176, 107 Hoffman v. Henderson, 145 Ind. 613, 80, 81 Hogan V. Robinson, 94 Ind. 138, 214 220 225 Hogshead v. State, 120 Ind. 327, ' 70 Hogue V. McClintock, 76 Ind. 205, 153, 270 Hoke V. Applegate, 92 Ind. 570, 57, 205, 405 Holcraft v. King, 25 Ind. 352, 368 Holland v. Holland, 131 Ind. 196, 31, 139, 174 Holliday v. Henderson, 67 Ind. 103, 375 V. Thomas, 90 Ind. 398, 204 Hollinger V. Reeme, 138 Ind. 363, 379 Hollingsworth v. State, 3 Ind. 257, 12, 13 v. State, 111 Ind. 289, 361 Holloran v. Midland E. Co. 129 Ind. 274, 9, 15, 126, 149, 150, 154, 233, 235, 241, 245, 246, 251, 258, 329 XXVI TABLE OF CASES. [References are to Pages.l Holman v. Robbing, 5 Ind. App. 436, 411 V. Stannard, 14 Ind. App. 146, 162,301,314,331 Holloway v. State, 53 Ind. 554, 63 Holsclaw V. State, 114 Ind. 506, 363 Holt V. Rockhill, 143 Ind. 530, 3, 48, 311 Home Electric, etc., Co. v. Globe, etc., Co., 145 Ind. 174, 7, 112, 113, 114, 122, 323 Hon V. State, 89 Ind. 249, 58, 405 Hood V. Tyner, 3 Ind. App. 51, 73 Hoover v. Weesner, 147 Ind. 510, 43, 48, 283, 299, 312 Hopkins v. Boyd, 18 Ind. App. 63, 366 V. Greensburg, etc., Co., 46 Ind. 187, 103 Hoppes V. Chapin, 15 Ind. App. 258, 59 Hormann v. Hartmetz, 128 Ind. 353, 37, 366 Hornaday v. Shields, 119 Ind. 201, 57, 405 Hornbrook v. Powell, 146 Ind. 39, 103 Home V. Harness, 18 Ind. App. 214, 209, 210, 211, 305, 335 Hoskins v. State, 27 Ind. 470, 364 Hoskinson v. Cavender, 143 Ind. 1, 76 Hotchkiss V. Jones, 4 Ind. 260, 216 Houk V. Allen, 126 Ind. 568, 63, 77, 78 V. Branson, 17 Ind. App. 119, 73, 74 V. Hicks, 11 Ind. App. 190, 204 Houser v. State, 93 Ind. 228, 367 Houston V. Bruner, 39 Ind. 376, 66 V. State, 15 Ind. App. 424, 45 Hovey v. State, 119 Ind. 395, 183, 184 Howlett V. Scott, 100 Ind. 485, 366 Hubbard v. Bell, 4 Ind. App. 180, 207 Hubbs V. State, 20 Ind. App. 181, 68 Huber v. Beck, 6 Ind. App. 47, 2, 90, 102, 411 Huber, etc., Co. v. Busey, 16 Ind. App. 410, 177 Hudson V. Densmore,68Ind. 391, 3 V. Wood (Ind.), 54 N. E. Rep. 104, 137 Huffman v. State, 52 N. E. Rep. 713, 68 Hughes V. Parker, 148 Ind. 692, 87, 111, 112, 123 Huggins V. Hughes, 11 Ind. App. 465, 201 Hull V. Louth, 109 Ind. 315, 28 Humbarger v. Carey, 145 Ind. 324, 73, 399 Hunderlock v. Dundee Mortgage, etc., Co., 88 Ind. 139, 15, 219, 226 Hunnell v. State, 86 Ind. 431, 396 Hunsinger v. Hofer, 110 Ind. 390, 400 Hunter v. French,' 86 Ind. 320, 140 V. Fitzmaurice, 102 Ind. 449, 59 V. Hatfield, 68 Ind. 416, 29 V. Miller, 17 Ind. 88, 119 V. State, 101 Ind. 406, 27, 45 Huntington, etc., Co. v. Mock, 14 Ind. App. 221, 67 Hurlbut V. Hurlbut, 12 Ind. 346, 243 Hursch V. Hursch, 99 Ind. 500, 14, 117, 127, 153, 400 Hurt V. State, 26 Ind. 100, 313 Hussey v. Whiting, 145 Ind. 580, 106, 193 Huston V. Cosby, 14 Ind. App. 602, 37 V. Vail, 51 Ind. 299, 72 Hutchings f. Hay, 132 Ind. 369, 57, 205, 405, 406, 407 Hutchins v. State, 140 Ind. 78, 63 V. State, 151 Ind. 667, 63, 64, 66, 414, 420 Hutchinson v. First Nat'l Bank, 133 Ind. 271, 117 V. Trauerman, 112 Ind. 21, 122 Hutts V. Bowers, 77 Ind. 211, 343 V. Hutts, 62 Ind. 214, 12 V. Martin, 131 Ind. 1, 148, 155, 192, 220, 221, 230, 234, 235, 241, 242, 299, 330 V. Shoaf, 88 Ind. 395, 202 Hyer v. Norton, 26 Ind. 269, 163 Hyland v. Milner, 99 Ind. 308, 400 Hynemanv.Roberts, 118Ind. 137, 408 Ice V. Ball, 102 Ind. 42, 361, 368 Importers', etc.. Bank v. Knight, 18 Ind. App. 257, 317, 318, 320 Indiana, etc., Assn. v. Paxton, 18 Ind. App. 304, 185 Indiana, etc., R. Co. v. Adams, 112 Ind. 302, 47, 52, 133 V. Bundy, 152 Ind. 590, 35 V. Dailey, 110 Ind. 75, 300 V. Rinehart, 14 Ind. App. 587, 105 Indiana, etc., Co. v. Wooters, 141 Ind. 315, 105 Indiana Imp. Co. v. Wagner, 138 Ind. 658, 81 Indiana Mfg. Co. v. Milligan, 87 Ind. 87, 31 Indianapolis Brewing Co. v. Claypool, 149 Ind. 193, 293, 294 Indianapolis, etc., Co. v. Herr- man, 7 Ind. App. 462, 400 TABLE OF CASES. XXVll [References are to Pages.} Indianapolis, etc., R. Co. v. Bush, 101 Ind. 582, 367 V. Case, 15 Ind. 42, 186 V. Olay, 4 Ind. App. 282, 183 V. Lvons, 48 Ind. 119, 186 V. Neubacher, 16 Ind. App. 21, 409 V. Sands, 183 Ind. 433, 8, 363 V. Stephens, 28 Ind, 429, 186 Indianaixilia Journal, etc., Co. V. Pugh, 6 Ind. App. 510, 72, 73, 296, 399 Ingsl V. Scott, 86 Ind. 518, 39 Inglis V. State, 61 Ind. 212, 185 In re Petition of Stroh, 149 Ind. 164, 87, 123 In re Pittsburgh, etc., Co., 147 Ind. 697, 100, 101, 109, 376 Island Coal Co. v. Clemmitt, 12 Ind. App. 206, 274, 285 Isler V. Bland, 117 Ind. 457, 64 Israel v. Jackson, 93 Ind. 543, 103 Jackson v. Meyers, 120 Ind. 504, 119, 324 V. Smith, 120 Ind. 520, 412 V. State, 19 Ind. 312, 189 V. State, 116 Ind. 464, 61 V. Swope, 134 Ind. Ill, 66 V. Van Devender, 76 Ind. 27, 176, 177, 319, 320 V. Weaver, 98 Ind. 307, 408 Jacquay v. Hartzell, 1 Ind. App. 500, 79 Jager v. Doherty, 61 Ind. 528, 214, 218, 832 James v. Lake Erie, etc., R. Co., 148 Ind. 615, 109, 110, 112, 113, 115, 323, 324, 354 Jamieson v. Ind. Nat. Gas. Co., 128 Ind. 555, 189 Jamison v. State, 13 Ind. App. 294, 43 Jarvis v. Banta, 83 Ind. 528, 31 Jeffersonville, etc., R. Co. v. Har- rold, 3 Ind. App. 592, 209, 211 V. Riley, 39 Ind. 568, 61 V. Riter, 146 Ind. 521, 354 Jelley v. Roberts, 50 Ind. 1, 40, 375, 376, 379 Jenkins V. Corwin, 55 Ind. 21, 147, 155 V. Wilson, 140 Ind. 544, 36 Jenks V. State, 39 Ind. 1, 45 Jewell V. Town of Sullivan, 130 Ind. 574, 94 John V. Hatfield, 84 Ind. 75, 64 John Church Co. v. Spurrier, 20 Ind. App. 39, 167, 176, 305, 310 Johnson v. Ballard, 148 Ind. 181, 40, 46 V. Board, 140 Ind. 152, 94, 98 V. Breedlove, 104 Ind. 521, 369 V. Brown, 130 Ind. 534, 67 72 74 399 V. Crowder, 15 Ind. App. 28, ' 269 V. Culver, 116 Ind. 278, 210, 211 V. Eberhart, 140 Ind. 210, 2, 7, 26 V. Gwinn, 100 Ind. 466, 364 V. Johnson, 115 Ind. 112, 103 V. McCulIoch, 89 Ind. 270, 74 V. Miller, 43 Ind. 29, 268 V. Moore, 112 Ind. 91, 318 V. Ramsay, 91 Ind. 189, 865 V, Stephenson, 104 Ind. 368, 155, 231, 233, 241, 327 John V. Farwell Co. v. Newman, 17 Ind. App. 649, 154, 225, 230, 234, 325 Jonas V. Hirshburg, 18 Ind. App. 581, 810 Jones V. easier, 189 Ind. 382, 408 V. Castor, 96 Ind. 307, 284, 345 V. City of Tipton, 13 Ind. App. 392, 92, 105, 160 V. Darnall, 103 Ind. 569, 122, 123 V. Droneberger, 28 Ind. 74, 262 V. Foley, 121 Ind. 180, 132, 134 V. Henderson, 149 Ind, 498, 186, 251, 259, 297 V. Jones, 91 Ind. 72, 27, 40, 46; 138 V. Layman, 128 Ind. 569, 39, 65 V. Lindsay, 98 Ind. 218, 401 V. State, 89 Ind. 82, 62, 78 V. State, 152 Ind. 318, 62, 396 V. Van Patten, 8 Ind. 107, 27 Jordan, etc., Assn. v. Wagoner, 33 Ind. 50, 187 .Joseph V. Mather, 110 Ind. 114, 35 Joyce V. Dickey, 104 Ind. 183, 148, 150, 327 Judah V. Trustees, 23 Ind. 272, 357, 358 Judd V. Small, 107 Ind. 398, 893 Judsonjv. Romaine, 8 Ind. App. 390, 82 Judy V. Citizen, 101 Ind. 18, 28 Julian V. Beal, 34 Ind. 371, 852 June V. Payne, 107 Ind. 307, 255 Justice V. Justice, 115 Ind. 201, 8, 308, 309 K Kahl V. Madison, etc., Co., 14 Ind. App. 78, 94 XXVlll TABLE OF CASES. lEeferences are to Pages.] KaMenbeckv. State, 119 Ind. 118, 390, 401 Kalbrier v. Leonard, 34 Ind. 497, 188 Kalen V. Terre Haute, etc., R. Co., 18 Ind. App. 202, 362 Kaster v. Kaster, 93 Ind. 581, 20, 274 Keadle v. Siddens, 131 Ind. 597, 94 Keck V. State, 12 Ind. App. 19, 393 Kedy v. Kramer, — Ind. App. — , 28 N. E. Rep. 11, 103 Keepfer v. Force, 86 Ind. 81, 187 Keller v. Gaskill, 20 Ind. App. 502, 353, 354 Keller V. Jordan, 147 Ind. 113, 112 114 323 V. Reynolds, 12 Ind. App. 383, ' 361 Kelley v. Adams, 120 Ind. 340, 318, 382 V. City of Crawfordsville, 14 Ind . App. 81, 101, 108 Kelly V. Johns, 13 Ind. App. 579, 407 Kendall, Ex parte, 100 Ind. 599, 123 Kennedy v. Divine, 77 Ind. 490, 39 Kennegar v. State, 120 Ind. 176, 63, 364 Kennell v. Smith, 100 Ind. 494, 21 Kent V. Lawson, 12 Ind. 675, 60 Kern v. Bridwell, 119 Ind. 226, 28, 399 Kernodle v. Gibson, 114 Ind. 541, 4 Kesler v. Meyers, 41 Ind. 543, 29, 173, 174, 312, 313 Ketcham v. Hill, 42 Ind. 64. 41 Kiley, Ex parte, 135 Ind. 225, 92, 109 V. Murphy, 7 Ind. App. 239, 93 V. Perrin, 60 Ind. 387, 329 Kimball v. Sloss, 7 Ind. 589, 5 Kimberlin v. Tow, 133 Ind. 696, 194 King V. Carmichael, 136 Ind. 20, 157 V. Easton, 135 Ind. 353, 207 Kingan, etc., Co. v. Silver (Ind. App.1, 53 N. E. Rep. 429, 353, 354 Kinney v. Dodge, 101 Ind. 573, 361 Kirby v. Bowland, 69 Ind. 290, 41 Kissel V. Anderson, 73 Ind. 485, 202 Kitts V. Wilson, 89 Ind. 95, 394, 395 Klebar v. Town of Corydon, 80 Ind. 95, 160 Kleespies v. State, 106 Ind. 383, 32 Kleyla v. State, 112 Ind. 146, 39 Klinger v. Smith, 131 Ind. 524 6 Kluse V. Sparks, 10 Ind. App. 144, 36, 283 Kneeland v. City of Milwaukee, 15 Wis. 454, 416, 417 Knight V. Knight, 6 Ind. App. 268, 202, 365 Knisely v. Hire, 2 Ind. App. 86, 74, 77 Knowlton v. Dolan, 151 Ind. 79, 174 Know V. Trafalet, 94 Ind. 346, 364 Kochel V. Bartlett, 88 Ind. 237, 66 Koons V. Beach, 147 Ind. 137, 312 V. Mellett, 121 Ind. 585, 138, 140, 220 Kreitline v. Franz, 106 Ind. 359, 119 Krenzer V. Pittsburgh, etc., R. Co., 151 Ind. 587, 344 Krom V. VermilUon, 143 Ind. 75, 34 Krug V. Davis, 101 Ind. 75, 361, 367 Krutz V. Craig, 53 Ind. 561, 79 Kuhns V. Gates. 92 Ind. 66, 367 Kyle V. Kvle, 55 Ind. 387, 58, 356, 412 V. Miller, 108 Ind. 90, ■ 400 Lafollette v. Higgins, 109 Ind. 241, 74, 202 Lake v. Lake, 99 Ind. 339, 205 Lake Erie, etc., R. Co. v. Acres, 108 Ind. 548, 410 V. Clark, 7 Ind. App. 155. 173 V. Close, 5 Ind. App. 444, 73, 400 V. Fix, 88 Ind. 381, 27 V. Griffin, 107 Ind. 464, 366 V. Jnday, 19 Ind. App. 436, 199 V. McHenry, 10 Ind. App. 525, 364 V. Mugg, 132 Ind. 168, 3, 309 V. Parker, 94 Ind. 91, 28,64 V. Stick, 143 Ind. 449, 69 V. Town of Boswell, 137 Ind. 336, 199, 393 Lake Shore, etc., R. Co. v. Cin- cinnati, etc., R. Co. ,116 Ind. 578, 358 V. Van Auken, 1 Ind. App. 492, 93 Lamphier v. State, 70 Ind. 317, 63, 397 Landon v. White, 101 Ind. 249, 300 Lankford v. State, 144 Ind. 428, 283 Lane v. Schlemmer, 114 Ind. 296, 409 V. State, 151 Ind. 511, 5, 33, 34, 38, 54 V. Tavlor, 40 Ind. 495, 410 Langsdale v. Woollen, 99 Ind. 575, 392 Lansing v. Coats, 18 Ind. 166, 44 LaPlante v. Lee, 83 Ind. 155, 186 LaRose v. Logansport Nat'l JBank, 102 Ind. 332, 277 Latta V. Griffith, 57 Ind. 329, 319 Lavertv v. State, 109 Ind. 217, 57, 103, 205, 404, 408 Lawless v. Harrington, 75 Ind. 379, 31 Lawrence v. Wood, 122 Ind. 452, 12, 13, 154, 190, 198, 233 Laycock v. State, 136 Ind. 217, 406 Layman v. Hughes, 152 Ind. 484, 192, 415 TABLE OF CASES. XXIX {^Beferences are to Pages.'\ Leach v. Blakely, 34 Vt. 134, 1 V. Mattix, 149 Ind. 146, 3, 48, 50, 175, 311 Leard v. Leard, 30 Ind. 171, 358 Leary v. Dyson, 98 Ind. 317, 324, 378, 380 Leatherman v. Board, etc., 148 Ind. 282, 269, 270 Lebkovitz v. State, 113 Ind. 26, 397 Ledgerwood v. State, 134 Ind. 81, 407 Ledford v. Ledford, 95 Ind. 283, 400 Lee V. Basey, 85 Ind. 543, 57 V. Mozingo, 143 Ind. 667, ]4, 199, 200, 220, 221, 226, 236 Leech v. State, 78 Ind. 570, 372 Leeper v. State, 12 Ind. App. 637, 33, 34, 175 Leffel V. Obenchain, 90 Ind. 50, 31 Lefler v. State (Ind.), 54 N. E. Eep. 439, 414, 415, 416, 419, 420 Legler v. Payne, 147 Ind. 181, 293, 413, 414 Lemeter v. Warner, 7 Ind. App. 147, 103 Leiter v. Jackson, 8 Ind. App. 98, 59 Lerch v. Emmett, 44 Ind. 331, 41 Lester v. Brier, 88 Ind. 296, 366 Leverich v. State, 105 Ind. 277, 7, 30, 34, 146 Levey v. Bigelow, 6 Ind. App. 677, 79 Levi V. Bray, 12 Ind App. 9, 12 199 272 V. Drudge, 139 Ind. 458, ' ' 361 Levy V. Chittenden, 120 Ind. 37, 393 Lewis V. Albertson (Ind. App.), 53 N. E. Rep. 1071, 99, 101, 108, 283 V. Pillion, 4 Ind. App. 105, ' 372, 373, 374 V. Lewis, 30 Ind. 257, 28 V. Prenatt, 24 Ind. 98, 4 V. State, 137 Ind. 344, 72, 73, 399, 401 V. State, 142 Ind. 30, 2 Lichtenfels v. State, 53 Ind. 161, 13, 148, 156 Lillard v. State, 151 Ind. 322, 5, 367 Lillie v. Trentman, 130 Ind. 16, 353, 354 Lilly V. Sommerville, 142 Ind. 298, 222, 236 Lime City v. Black, 136 Ind. 544, 7, 116,365 Lindley v. Sullivan, 133 Ind. 588, 392, 393 Lindsay v. Lindsay, 47 Ind. 283, 418 Lindsey v. State, 82 Ind. 7, 283 Line v. State, 131 Ind. 468, 17, 71, 173, 194, 263, 265, 266, 356, 382, 385 Linton, etc., Co. v. Persons, 15 Ind. App. 69, 353, 354 Lockenhour v. Sides, 57 Ind. 360, 219 Lockhart v. Schlotterback, 141 Ind. 308, 93, 97, 98 Loeb V. Mathis, 37 Ind. 306, 417 V. Tinkler, 124 Ind. 331, 57, 58, 405, 407, 408 Loesch V. Koehler, 144 Ind. 278, 132 Logan V. Logan, 77 Ind. 558, 221, 225 V. Pennsylv?,ma Co., 132 Pa. St. 403, 114 V. Suit, 152 Ind. 434, 255 Logansport, etc., Co. v. Davidson, 51 Ind. 472, 44 Long V. Euch, 148 Ind. 74, 368 V. State, 46 Ind. 582, 32 V. State, 56 Ind. 182, 397 V. State, 95 Ind. 481, 62,64,79 V. Town of Brookston, 79 Ind. 183, 31 V. Williams, 74 Ind. 115, 366 Lotz V. Briggs, 50 Ind. 346, 46 Loucheim v. Seeley, 151 Ind. 665, 19, 20, 192, 200, 274 Louisville, etc., E. Go. v. Ader, 110 Ind. 376, 57, 407 V. Berry, 9 Ind. 63, 284, 304, 345, 362 V. Carmon, 20 Ind. App. 471, 24, 345, 346, 347 V. Cook, 12 Ind. App. 109, 69 V. Costelio, 9 Ind. App. 462, 187 V. Donnegan, 111 Ind. 179, 277 V. Dankin, 92 Ind. 601, 20 V. Duvall, 40 Ind. 246, 356 V. Grantham, 104 Ind. 353, 271, 285 V. Green, 120 Ind. 367, 202 V. Hart, 119 Ind. 273, 202, 300 , V. Heck, 151 Ind. 292, 406 V. Hendricks, 13 Ind. App. 10, 76 V. Hixon, 101 Ind 337, 186, 408 V. Jones, 108 Ind. 551, 409 V Kendall, 138 Ind. 313, 178, 315, 319, 320 V. Kemper, 53 N. E. Eep. 931, 70 V. Krinning, 87 Ind. 351, 367 V. Lockridge, 93 Ind. 191, 324, 378, 380, 410 V. McAfee, 15 Ind. App. 442, 186 V. Malott, 6 Ind. App. 545, 98, 102, 103 V. Martin, 17 Ind. App. 679, 395 V. Miller, 141 Ind. 533, 70, 76, 81, 82, 283, 363, 366 XXX TABLE OF CASES. [Seferences are to Pages.'] Louisville, etc., R. Co. v. Norman, 17 Ind. App. 355, 72, 74, 180, 193, 300, 405, 407 V. Palmer, 13 Ind. App. 161, 383 V. Peck, 99 Ind. 68, 57, 405 V. Pedigo, 108 Ind. 481, 70 V. Renicker, 8 Ind. App. 404, 68 V. Schmidt, 147 Ind. 638, 38, 43 V. Smoot, 135 Ind. 220, 207 V. State, 135 Ind. 59, .90 V. Steele, 6 Ind. App. 183, 93 V. Summers, 131 Ind. 241, 78 V. Terrell, 12 Ind. App. 328, 43 V. Thompson, 107 Ind. 442, - 64 V. Treadway, 143 Ind. 689, 356 V. Widman, 9 Ind. App. 190, 285 V. Wood, 113 Ind. 544, 409 Lovely v. Speisshoffer, 85 Ind. 454, 77 Lovinger v. First Nat'l Bank, 81 Ind. 354, 366 Lowe v. Turpie, 147 Ind. 652, 193, 220, 221, 224, 226, 230, 235, 245, 246, 297, 304, 313, 333 Lowerv v. State Life Ins. Co. (Ind.), 54 N. E. Rep. 442, 8, 58, 206, 369, 410, 411 Lowry v. Downey, 150 Ind. 364, 43 Loy V. Loy, 90 Ind. 404, 43 Ludlow V. Ludlow, 109 Ind. 199, 405,406 Lyon v. Davis, 111 Ind. 384, 39 M Maey V.Lloyd, 23 Ind. 60, 386 Madden v. State, 148 Ind. 183, 48, 50, 69, 146 Maddox v. Maddox, 97 Ind. 537, 21 Maier v. Board, 151 Ind. 197, 77, 284 Main v. Ginthert, 92 Ind. 180, 117 Mainard v. Reider, 2 Ind. App, 115 73 399 Magel V. Milligan, 150 Ind. 582, ' 208 Magnnson v. State, 13 Ind. App. 303, 72, 73, 74, 399 Mahoney v. Gano, 2 Ind. App. 107, 21, 283 Makepeace v. Bronnenburg, 146 Ind. 243, 38,42,43 Manhattan Life Ins. Co. v. Doll, 80 Ind. 113, 31,173 Manlove v. State (Ind.), 53 N. E. Rep. 385, 161, 163, 301, 331, 332, 334 Manley v. State, 52 Ind. 215, 395 Mann v. Barkley, 21 Ind. App. 152, 68 Manns Bros., etc., Co. v. Temple- ton, 149 Ind. 706, 20, 269, 270, 326 Manor v. Board, 137 Ind. 367, 21, 284, 345, 390 Mansur v. Churchman, 84 Ind. 573, 320, 345 v. Streight, 103 Ind. 358, 58, 408 Manufacturers', etc., Co. v. Les- lie (Ind. App.), 51 N. E. Rep. 510, 25, 344, 349, 359 Markley v. Rudv, 115 Ind. 533, 389 Marks v. State, 101 Ind. 353, 67 M^rsh V. Bower, 151 Ind. 356, 169 V. Morris, 133 Ind. 548, 31, 173, 361, 365 Marshall v. Bell, 1 Ind. App. 506, 97 V. Lewark, 117 Ind. 377, 277 Marsteller v. Crapp, 62 Ind. 359, 71 Martin v. Bott, 17 Ind. App. 444, 161 V. Martin, 74 Ind. 207, 3, 284, 286, 304 V. Murphy, 129 Ind. 464, 377 V. Orr, 96Ind. 491, 297 V. State, 148 Ind. 519, 42 Martindale v. Brown, 18 Ind. 284, 113 Marvin v. Sager, 145 Ind. 261, 20, 70, 71, 365 Mason v. Burk, 120 Ind. 407, 353 V. Roll, 130 Ind. 260, 140 Masten v. Indiana Car, etc., Co., 19 Ind. App. 633, 7, 112, 113 Masterson v. State, 144 Ind. 240, 62, 396 M. A. Sweeney Co. v. Fry, 151 Ind. 178, 207 Matchett v. Cin., etc., Co., 132 Ind. 334, 353 Mathews v. Droud, 114 Ind. 268, 368 Mathis V. Thomas, 101 Ind. 119, 214 Matlock V. Indiana, etc., R. Co., 16 Ind. 176, 183 V. Todd, 19 Ind. 130, 29 Mattinger v. Lake Shore, etc, R. Co., 117 Ind. 136, 39 May V. Hoover, 112 Ind. 455, 139 V. State, 140 Ind. 88, 12, 141, 146, 156, 178, 193, 203, 204, 212, 277; 364 Maybin v. Webster, 8 Ind. App. 547, 72, 73, 74, 202, 399 ]Mayer v. Haggerty, 138 Ind. 628, 147 Mays V. Hedges, 79 Ind. 288, 370 McAffee v. Reynolds, 130 Ind. 33, 353 McAllister v. Willey, 60 Ind. 195, 60 McBride v. Stradley, 103 Ind. 465, 103 McCammack v. McCammack,. 86 Ind, 387, 65, 77 TABLE OF CASES. XXXI [Beferences are to Fages.1 McCann v. Rodefer, 90 Cnd. 602, 274 MoChesney v. State, 5 Ind. App. 425, 97 McClain v. Jessup, 76 Ind. 120, 64 McClary v. State, 75 Ind. 260, 392 MoOlellan v. Bond, 92 Ind. 424, 367 V. Bristow, 9 Ind. App. 543, 97 McClelland v. Louisville, etc., E. Co., 94 Ind. 276, 366 McClosky V. Indianapolis, etc.. Union, 87 Ind. 20, 126, 262 McClure v. McClure, 19 Ind. 185, 2, 7 V. Shelburn Coal Co., 147 Ind. 119, 192, 299, 330 V. State, 116 Ind. 169, 4, 32, 77 McOole V. Loehr, 79 Ind. 430, 382 McComas v. Haas, 93 Ind. 276, 361 MeConahay v. Foster, 21 Ind. • App. 416, 68, 193 McConnell v. Huntington, 108 Ind. 405, 32 McCorkle v. State, 14 Ind. 396, 164, 165 McCormick v. Earhart, 72 Ind. 24, 3 McCormick, etc., Co. v. Gray. 114 Ind. 340, 58,353,405 V. Maas, 121 Ind. 132, 37 V. Smith, 21 Ind. App. 617, 38, 169 McCoy V. Able, 131 Ind. 417, 2, 38, 40, 42, 47, 48, 58, 410, 411, 412 McCoy V. State, 121 Ind. 160, 37 McOracken v. Cabel, 120 Ind. 266, 161, 162 McOrary v. McFarlan, 93 Ind. 466, 64 McCreery v.Nordyke (Ind. App.), 53 N. E. Rep. 849, 58 McCue V. McCue, 149 Ind. 466, 390 McCurdy v. Love, 97 Ind. 62, 160 McCutohen v. McCutchen, 141 Ind. 697, 4, 279, 296 ■ McDermitt v. Hubanks, 25 Ind. 232 4 McDonald v. Coryell, 174 Ind. 493, 67 V. Geisendorf, 128 Ind. 153, 173, 174 V. McDonald, 142 Ind. 55, 400 McElhoes v. Dale, 81 Ind. 67, 71 McFadden v. Schroeder, 9 Ind. App. 49, r 366 McFarlan Carriage Co. v. Potter, 21 Ind. App. 692, 109, 416 V. Potter (Ind. Sup.), 53 N. E. Rep. 465, 109, 414, 416 McFarland v. Pierce, 151 Ind. 546, 207 McGahan v. Indianapolis, etc., Co., 140 Ind. 335, 189 McGinnis v. State, 24 Ind. 500, 185 McGlennan v. Margowski, 90 Ind. 150, 122 McGoldriek v. Slevin, 43 Ind. 522, 2, 7, 58, 410, 411 McGregg V. State, 4BlackJ. 101, 396 McGregor v. Hubbs, 125 Ind. 487, 57, 205, 404 McGrew v. Grayston, 144 Ind. 165, 161, 301, 331, 334 Mcllwaine v. Adams, 46 Ind. 580, 214, 218 Mcintosh V. Zaring, 150 Ind. 301, 78 McKee v. Root, — Ind. — , Oct. 13, 1899, 226, 235 McKeen v. Boord, 60 Ind. 280, 41 V. Porter, 134 Ind. 483, 195 McKendry v. Sinker, Davis & Co., 1 Ind. App. 263, 134 McKinney v. Frankfort, etc., R. Co., 140 Ind. 95, 68,114,324 v. Hartman, 143 Ind. 224, 9, 14, 126, 149, 150, 246, 251, 256, 257, 2,58, 259, 260, 262, 329, 361, 386 V. State. 117 Ind. 26, 70 McKnightv.Knisely, 25Ind.336, 118 McLaughlin v. State, 66 Ind. 193, 142, 248 McLelland v. Louisville, etc., R. Co., 94 Ind. 276, 366 McMahan v. McMahan, 142 Ind. no, 8, 362 V. Spinning, 51 Ind. 187, 43 McNaught V. McAllister, 93 Ind. 114, 194 McNutt V. McNutt, 116 Ind. 545, 390, 401 Meadows v. State, 114 Ind. 537, 263, 385 Medical College Co. v. Commin- gore, 140 Ind. 296, 28, 207 Memphis, etc., Co. v. McCool, 83 Ind. 392, ' 370 v. Pikey, 142 Ind. 304, 84, 178, 277 Meranda v. Spurlin, TOO Ind. 380, 64 Mercer v. Corbin, 117 Ind. 450, 39, 134 Meredith v. State, 122 Ind. 514, 30, 32, 33, 145 Mergentheim v. State, 107 Ind. 567, 401 Merrick v. State, 63 Ind. 327, 397 Merrifield v. Weston, 68 Ind. 70, 320 Merrit v. Richey, 127 Ind. 400', 208,209, 211 Mershon v. State, 51 Ind. 14, 397 Messenger v. State, 152 Ind. 227, 28 Metropolitan, etc., Ins. Co. v. McCormick, 19 Ind. App. 49, 2, 7, 58, 403, 404, 408 Metzger V. Franklin Bank, 119 Ind. 359, 21, 283 V. Hubbard, 54 N. E. Rep. 761, 366 xxxn TABLE OP CASES. [References are to Pages.] Meurer v. State, 143 Ind. 685, 66 Meyer v. State, 125 Ind. 335, 17, 265 Meyers v. State, 92 Ind. 390, 397 v.City of Jefferson ville, 144 Ind. 567, 269 Michigan Mutual, etc., Co. v. Frankel, 151 Ind. 534, 9, 14, 18, 19, 126, 127, 149, 154, 219, 220, 222, 224, 226, 230, 231, 235, 241, 242, 244, 245, 246, 251, 257, 262, 269, 298, 304, 305, 324, 325, 329 Midland K. Co. v. Diekason, 130 Ind. 164, 60 V. Holloran, 14 Ind. App. 392, 149, 150, 251, 258, 259, 260, 362, 386 V. St. Clair, 144 Ind. 363, 220, 227, 230, 235, 241, 245, 325 V. Wilcox, 111 Ind. 561, 385, 386 Milburn v. Phillips, 136 Ind. 680, 276 Miller v. Blue, 11 Ind. App. 288, 37 V. Buchanan, 10 Ind. App. 474, 369 V. Burket, 132 Ind. 409, 121, 127, 128, 152, 252, 258, 328 377 409 V. Carmichael, 98 Ind. 236,' 139*, 260 V. City of Indianapolis, 123 Ind. 196, 188 V. Cook, 127 Ind. 339, 182, 297, 361 V. Evansville Nat'l Bank, 99 Ind. 272, 103 V. Evansville, etc., R. Co., 143 Ind. .570, 43, 44, 47, 320 V. Fuller, 21 Ind. App. 254, 39 V. McDonald, 139 Ind. 465, 404 V. Miller, 17 Ind. App. 605, 409 V. Preble, 142 Ind. 632, 401 V. Rapp, 7 Ind. App. 89, 102, 103, 365 V. Shriner, 87 Ind. 141, 65, 168, 312 V. State, 149 Ind. 607, 377 Milligan v. State, 86 Ind. 553, 184 V. State, 97 Ind. 355, 122, 274 Mills v. Hardy, 128 Ind. 311, 107 Milwaukee v. Stewart, 13 Ind. App. 640, 70 Minot V. Mitchell, 30 Ind. 228, 362 Mitchell V. Brawley, 140 Ind. 216, 352 V. Gregory, 94 Ind. 363, 16, 149, 253, 254, 255, 256, 257, 258 V. Tomlinson, 91 Ind. 167, 400 V. Wiles, 59 Ind. 364, 375 Moberry v. City of Jeffersonville, 38 Ind. 198, , 184 Mobley v. State, 83 Ind. 92, 2 Mode v. Beasley, 143 Ind. 306, 184, 186, 361 V. Board, etc., 141 Ind. 574, 372, 373 Moelering v. Smith, 7 Ind. App. 451, 217 Monnett v. Hemphill, 110 Ind. 299, 383 v. Turpie, 132 Ind. 482, 103, 409 Monroe v. Adams Express Co., 65 Ind. 60, 29 Montgomery v. Gorrell, 49 Ind. 230, 11, 176 Moon V. Cline, 11 Ind. App. 460, 148, 214, 218 V. Jennings, 119 Ind. 130, 75, 76 Moore v. Boyd, 95 Ind. 134, 366 V. Hammons, 119 Ind. 510, 12, 191 V. Harland, 107 Ind. 474, 6 V. Hinkle, 151 Ind. 343, 5 V. Horner, 16 Ind. App. 694, 92 V. Lynn, 79 Ind. 299, '367 V. Morris, 142 Ind. 354, 203, 204 V. Shields, 121 Ind. 267, 367 V. Slack, 140 Ind. 38, 218, 333 Moorman v. Wood, 117 Ind. 144, 409 Morehouse v. Heath, 99 Ind. 509, 400, 401 Morel V. State, 89 Ind. 275, ' 61 Moreland v. Thorn, 143 Ind. 211, 404 Morgan v. Hays, 91 Ind. 132, 54 Morningstar v. Cunningham, 110 Ind. 338, 63 V. Musser, 129 Ind. 470, 4, 175, 183, 366 Morrison v. Carey, 129 Ind. 277, 66,67 Morrow v.^Geeting, 135 Ind. 322, 90 Mossman v. Forrest, 27 Ind. 233, 187 Moulder v. Kempf, 115 Ind. 459, 390, 392 Mountjoy v. State, 78 Ind. 172, 187 Moyer v. Bucks, 2 Ind. App. 571, 58,97 M. Bumley Co. v. Moore, 151 Ind. 24, 296 Mull V. McKnight, 67 Ind. 525, 265 Munsonv. Blake, 101 Ind. 78, 226, 245 Murdock v. Cox, 118 Ind. 266. 408 Murphy v. Murphy, 95 Ind. 430, 408 Murray v. Williamson, 79 Ind. 287, 270, 326 Musgrave v. State, 133 Ind. 297, 36 Musselman V. Musselman, 44 Ind. 106, • 362 V. Pratt, 44 Ind. 126, 398 V. State, 33 Ind. 267, 145 Myers v. Lawyer, 99 Ind. 237, 129 V. State, 93 Ind. 251, 189 TABLE OF CASES. XXXIU {Befevences are to Fages.'\ N Naanes v. State, 143 Ind. 299, 32, 33, 76, 403, 404, 406 Nading v. Elliott, 137 Ind. 261, 191. 196, 201, 299 Nafe V. Leiter, 103 Ind. 138, 201 Natcher v. Natcher (Ind.), Oct. 81, 1899, 127, 152, 252, 258 Nathan v. Lee, 152 Ind. 232, 416 National Bank, etc., Co. v. Dunn, 106 Ind. 110, 60, 64 National Bank v. Williams, 126 Ind. 423, 75 National Exchange Co. v. Berry, 21 Ind. App. 261, 50 Naylor v. Sidener, 106 Ind. 179, 116, 117, 118 Neaderhouser v. State, 28 Ind. 257, 186 Nealis v. Dicks, 72 Ind. 374, 3 Needham v. Gillaspy, 49 Ind. 245, 7, 113 Nelson v. Cottingham, 152 Ind. 135, 367, 368 Nelson v. Fleming, 56 Ind. 310, 414 Nelson v. Welch, 115 Ind. 270, 399 New Albany, etc., Co. v. Crumbo, 10 Ind. "App. 360, 100 New Albany, etc., E. Co. v. Day, 117 Ind. 337, 6 Newkirk v. State, 27 Ind. 1, 62 Newman v. Gates, 150 Ind. 59, 110, 376, 416 V. Kiser, 128 Ind. 258, 161, 162, 191, 196, 301, 302 V. Railway, etc., Assn., 15 Ind. App. 29, 279 Newton v. Pence, 10 Ind. App. 672, 19 Newport v. State, 140 Ind. 299, 283 New York, etc., R. Co. v. Doane, 105 Ind. 92, 147, 149, 150, 323, 324 Nichol V. Henry, 89 Ind. 154, 192, 209 V. Thomas, 53 Ind. 42, 29 Nichols V. Cornelius, 7 Ind. 611, 122 V. State, 127 Ind. 406, 364, 404, 406 Nickless v. Pearson, 126 Ind. 477, 353 Nill V. Comparet, 16 Ind. 107, 265, 266 Nitchie v. Earle, 117 Ind. 270, 363 Nixon V, Beard, 111 Ind. 137, 400 Noble V. Dickson, 48 Ind. 171, 77 Noblesville, etc., Co. v. Teeter, 1 Ind. App. 322, 27, 390, 401 Noerr v. Schmidt, 151 Ind. 579, 412 Noftsger v. Smith, 6 Ind. App. 54, 71 Norris v. Churchill, 20 Ind. App. 668, 70 iii— App. Practice. North V. Barringer, 147 Ind. 224, 129 North British, etc., Co. v. Koontz, 17 Ind. App. 625, 201 Northcutt V. Buckles, 60 Ind. 577, 46, 79, 113 Northern, etc., R. Co. v. Michigan, etc., R. Co., 3 Ind. 8, 16, 256 V. Michigan, etc., E. Co., 2 Ind. 670, 256 Northwestern, etc., Ins. Co. v. Hazelett, 105 Ind. 212, 65, 77, 277 Northwestern, etc., Co. v. Hei- mann, 93 Ind. 24, 65 V. McPherson (Ind.), 54 N. E. Rep. 130, 368 Norton v. State, 106 Ind. 163, 61, 146, 283 Nowlin V. Whipple, 89 Ind. 490, 35 Nutter V. Junction R. Co., 13 Ind. 479, 211 O'Brien v. State, 63 Ind. 242, 403, 406 O'Donald v. Constant, 82 Ind. 212 34 Offutt v'. Cooper, 136 Ind. 701, 356 V. Gowdy, 18 Ind. App. 602, 66 Ogden V. Kelsey, 4 Ind. App. 299, 67 Ogle V. Dill, 55 Ind. 130, 120, 324 V. Manlove, 133 Ind. 55, 285 Ohio, etc., R. Co. v. Dunn, 138 Ind. 18, 31,35,175 V. Heaton, 137 Ind. 1, 59 V.Hill, 7 Ind. App. 255, 62 V. Judy, 120 Ind. 397, 64 V. McCartney, 121 Ind. 385, 36, 65 V. Nickless, 73 Ind. 382, 20, 283 V. Stein, 133 Ind. 243, 65, 76, 77 V. Wrape, 4 Ind. App. 100, 74 Old V. Mohler,122 Ind. 594, 57, 408, 409 Oldfather v. Zent, 18 Ind. App. 214, 209 Olds V. Deckman, 98 Ind. 162, 33, 34 O'Mara v. Wabash R. Co., 150 Ind. 648, 15, 154, 225, 226, 230, 233, 234, 242, 325 O'Neil V. Chandler, 42 Ind. 471, 329 Opp V. Ten Eyck, 99 Ind. 345, 261, 385 V. Ward, 125 Ind. 241, 385 O'Rear v. State, — Ind. App. — , 53 N. E. Rep. 249, 111 Orr V. Miller, 98 Ind. 436, 366, 370 Orton V. Tilden, 100 Ind. 131, 37, 47 Osgood V. Smock, 144 Ind. 387, 3 Ostler V. State, 3 Ind. App. 122, 60. 202 XXXIV TABLE OF CASES. [Beferences are to Pages.] Otis V. Weiss, — Ind. App. — , 53 N. E. Rep. 428, 12, 34, 179, 329, 330 Owen S. Tp. v. Hay, 107 Ind. 351, 408 Pace V. State, 152 Ind. 343, 146, 406 Padgett V. State, 93 Ind. 396, 17 Painter, etc., Co. v. Metz Co., 7 Ind. App. 652, 193, 300 Palmer v. Logansport, etc., Co., 108 Ind. 137, 368 Pancake v. State, 81 Ind. 93, 189 Pape V. Lathrop, 18 Ind. App. 633, 79 Parker v. Hastings, 12 Ind. 654, 273 287 V. State, 135 Ind. 534, 9, 9,' 253 V. State, 133 Ind. 178, 332, 343, 351 V. State, 132 Ind. 419, 216, 292, 293 Patoka' Tp. v. Hopkins, 131 Ind. 142, 19, 209, 210, 211 Pattee v. State, 109 Ind. 545, 363, 403, 406 Patterson v. Churchman, 122 Ind. 379, 52 V. Scottish, etc., Co., 107 Ind. 497, 59, 201, 411 Paul V. Davis, 100 Ind. 422, 858, 359, 415, 417, 419, 421 ■V. Town of Walkerton, 150 Ind. 565, 107 Payne v. June, 92 Ind. 252, 366 Pearcv v. Michigan, etc., Co., Ill Ind. 59, 63 Pearson v. Pearson, 125 Ind. 341, 409 Peck V. Hensley, 21 Ind. 344, 61 V. Sims, 120 Ind. 345, 187 Peigh V. Huffman, 6 Ind. App. \ 658, 392 Pemberton v. State, 85 Ind. 507, 212 Pence V. Garrison, 93 Ind. 345, 103 V. Waugh, 135 Ind. 143, 38, 367 Pennington v. Pennington, 138 Ind. 8, 71 Pennsylvania Co. v. Congdon, 134 Ind. 226, 2, 7, 407 V. Ebaugh, 152 Ind. 531, 53 V. Gallentine, 77 Ind. 322, 202 V. Holderman, 69 Ind. 18, 312, 316 V. Horton, 132 Ind. 189, 184 V. Nations, 111 Ind. 203, 66 V. Newmeyer, 129 Ind. 401, ' 366 V. Niblack, 99 Ind. 149, 129 V. Honey, 89 Ind. 453, 362 V. Sears, 136 Ind. 460, 310 V. Smith, 98 Ind. 42, 64 V. gtate, 142 Ind. 428, 413 People's Savings Bank v. Finney, 63 Ind. 460, 297 Peoria, etc., E. Co. v. Flicker, 95 Ind. 180, 21, 283 Peoria, etc., Co. v. Walser, 22 Ind. 73, - 312, 315 Perkins v. Hayward, 124 Ind. 445, 4, 8, 38, 58, 363, 412 V. Rogers, 35 Ind. 124, 188 Perrin Nat'l Bank v. Thompson, 20 Ind. App. 649, 69 Perry v. Botkin, 15 Ind. App. 83, 220, 236 v. Makemson, 103 Ind. 300, 368 Petition of Stroh. In re, 149 Ind. 164, ■ 87 Petitt V. Petitt, 138 Ind. 597, 76, 103 Pfaflenback v. Lake Shore Co., 142 Ind. 246, 67 Pfaffenbergv. Platter, 98 Ind. 121, 366 Ptau V. State, 148 Ind. 539, 181, 202 Pfeiffer v. Crane, 89 Ind. 485, 113 Phenix Ins. Co. v. Pickel, 3 Ind. App. 332, 353 V. Lorenz, 7 Ind. App. 266, 276, 309 V. Rogers, 11 Ind. App. 72, 354 Phillips V. State, 108 Ind. 406, 361 Phoenix Ins. Co. v. Moffett (Ind. App.), 51 N. E. Rep. 948, 354 Pierce v. Banta, 9 Ind. App. 376, 126 Pierse v. West, 29 Ind. 266, 215, 218, 332 Pigg v. State, 145 Ind. 560, 72, 74, 399 Pittsburgh, etc., R. Co., In re, 147 Ind. 697, 100, 101, 109 V. Beck, 152 Ind. 421, 363 V. Hays, 17 Ind. App. 261, 90, 100, 187 V. Hixon, 110 Ind. 225, 353, 355 V. Ives, 12 Ind. App. 602, 69 V. Mahoney, 148 Ind. 196, 24, 342, 348, 351 V. Moore (Ind.), 53 N. E. Eep. 290, 414 V. Noel, 77 Ind. 110, 408 V. Noftsger, 148 Ind. 101, 48 V. O'Brien, 142 Ind. 218, 283 V. Ruby, 38 Ind. 294, 30 V. Sponier, 85 Ind. 165, 61 V. Van Houten, 48 Ind. 90, 320 V. Welch, 12 Ind. App. 433, 72 V. Williams, 74 Ind. 462, 20 Pitzer V. Indianapolis, etc.,R. Co., 80 Ind. 569, 81 Placard v. State, 148 Ind. 305, 201 Plank V. Jackson, 128 Ind. 424, 175 Platter v. Board, 103 Ind. 360, 361 , 368, 369 TABLE OF CASES. XXXV [Beferences are to Pages.'\ Pleasants v. Vevay, etc., Co., 42 Ind. 391, 120, 324 Pond V. Irwin, 113 Ind. 243, 214, 418 Popijoy V. Miller, 133 Ind. 19, 194, 195 Port Huron, etc., Oo. v. Smith, 21 Ind. App. 233, 33, 54 Porter v. Reid, 81 Ind. 569, 382 V. Waltz, 108 Ind. 40, 367 Post V. Cecil, 11 Ind. App. 362, 389 390 391 V. State, 14 Ind. App. 452, ' 39o' 391 Poteet V. County Commissioners, 30 W. Va. 58, 42 Potter V. McCormack, 127 Ind. 439, 174 Pounds V. Chatham, 96 Ind. 342, 118 Poundstone v. Baldwin, 145 Ind. 139, 360, 361 Powell V. Bennet, 4 Ind. App. 112, 102, 103 V. Stickney, 88 Ind. 310, 64 Powers V. State, 87 Ind. 144, 277 Praigg V. Western, etc., Co., 143 Ind. 358, 300, 394 Prather v. Prather, 139 Ind. 570, 47 Pratt V. Allen, 95 Ind. 404, 64, 274 V. State, 56 Ind. 179, 63 Premier Steel Co. v. Yandes, 6 Ind. App. 345, 102, 103 Pressley v. Lamb, 105 Ind. 171, 116, 151 Preston v. Sandford's Admr., 21 Ind. 156, 28 Price V. Baker, 41 Ind. 570, 198 V. Barnes, 7 Ind. App. 11, 383 V. Bayless, 131 Ind. 437, 121 V. State, 74 Ind. 553, 148, 156, 328 Pritchett v. McGaughey, 151 Ind. 638, 15, 235, 245 Proctor V. De Camp, 83 Ind. 559, 400 Puett V. Beard, 86 Ind. 104, 408 Q Queen, etc., Oo. v. Hudnut Co., 8 ,Ind. App. 22, 194 Queen Ins.Oo.v.Studebaker Bros., 117 Ind. 416, 64 Quill V. Gallivan, 108 Ind. 235, 173, 406 Quinn v. State, 123 Ind. 59, 67 R Racer v. Baker, 113 Ind. 177, 64 V. State, etc., 131 Ind. 393, 388 V. Wingate, 138 Ind. 114, 189 Radabaugh v. Silvers, 135 Ind. 605, 78, 79, 80 Radican v. Buckley, 138 Ind. 582, 356 Eailsback v. Greve, 58 Ind. 72, 261, ,386 Randall v. State, 132 Ind. 539, 400 Randies v. Randies, 67 Ind. 434j 17, 265, 266 Ransbottom v. State, 144 Ind. 250, 396 Rapp V. Kester, 125 Ind. 79, 4 V. Reehling, 122 Ind. 255, 117 Rarick v. Ulmer, 144 Ind. 25, 69, 106 Rariden v. Rariden, 129 Ind. 288, 103 Ratcliffe v. Everman, 87 Ind. 446, 364 Rauh V. Weis, 133 Ind. 264, 95, 96 Ray V. Moore, 19 Ind. App. 690, 112, 114 Rayle v. Indianapolis, etc., Co., 40 Ind. 347, 122 Raymond v. Wathen, 142 Ind. 367, 392, 393 Read v. Gooding, 20 Fla. 773, 114 Reddick v. Board, 14 Ind. App. 598, 129 Redinbo v. Fretz, 99 Ind. 458, 29, 369 Reed V. Browning, 130 Ind. 575, 58, 408 V. Kalfsbeck, 147 Ind. 148, 24, 346 V. State, 141 Ind. 116, 28, 72, 73, 142,.399 V. State, 147 Ind. 41, 76 V. Worland, 64 Ind. 216, 41 Rees V. Blackwell, 6 Ind. App. 506, 193,194 Reese v. Beck, 9 Ind. 238, 121 V. Cafiee, 133 Ind. 14, 74, 76 Reichert v. Krass, 13 Ind. App. 348, 90, 102 Reid V. Houston,- 49 Ind. 181, 10, 166 V. Reid, 149 Ind. 274, 169,175 Reinholdv. State, 130 Ind. 663, 396 Renner v. Ross, 111 Ind. 269, 214, 332 Reynolds v. State, 147 Ind. 3, 38, 54, 369 Rhine v. Morris, 96 Ind. 81, 174 Rhoades v. Delanev, 50 Ind. 468, 19 Rhodes v. Piper, 42 Ind. 474, 329 Richards, Ex parte, 102 Ind. 260. See Ex parte Richards. Richardson v. Hedges, 150 Ind. 53, 187 V. Pate, 93 Ind. 423, 15, 232, 243 V. Sevbold, 76 Ind. 58, 202 V. State, 63 Ind. 192, 397 Richwine v. Jones, 140 Ind. 289, 176, 177, 319 Ricketts v. Harvey, 106 Ind. 564, 367 V. Spraker, 77 Ind. 371, 388 XXXVl TABLE OF CASES. [References are to Pages.'\ Ridge V. City of Crawfordsville, 4 Ind. App. 513, 411 Bigler v. Rigler, 120 Ind. 431, 41 Riley v. Boyer, 76 Ind. 152, 69 V. Butler, 36 Ind. 51, 2, 7, 58, 410 V. Murray, 8 Ind. 354, 5, 199 V. State, 95 Ind. 446, 62, 142, 405 Rinehart v. Vail, 103 Ind. 159, 8, 138, 140, 251, 259 Ringgenberg v. Hartman, 102 Ind. 537, 60 Rissing v. City of Fort Wayne, 7 Ind. App. 103, 105 Roach V. Baker, 130 Ind. 362, 120 V. Clark, 150 Ind. 93, 138 Robard v. Morley, 80 Ind. 185, 184 V. State, 152 Ind. 294, 27, 46 Robb V. State, 144 Ind. 569, 72, 73, 76, 361 Robbins v. Masteller, 147 Ind. 122, 194, 300, 366 V. Magee, 96 Ind. 174, 202, 274, 345 V. Spencer, 140 Ind. 483, 69 V. Swain, 7 Ind. App. 486, 129 Roberts v. Farmers', etc., Bank, 136 Ind. 154, 44, 187 V. Hudleston, 93 Ind. 173, 366 V. Masters, 40 Ind. 461, 185 Robertson v. Huffman, 101 Ind. 474, 129, 203 V. State, 109 Ind. 79, 380, 411 Robinson v. Anderson, 106 Ind. 152, 39 V. Dickey, 143 Ind. 205, 365 V. Powers, 129 Ind. 480, 205, 404, 405 V. Schenck, 102 Ind. 307, 416, 417, 419 V. Shanks, 118 Ind. 125, 369 V. State, 152 Ind. 304, 6, 73, 399 Robinson Machine Works v. Chandler, 56 Ind. 575, 68 Robling V. Board, etc., 141 Ind. 622, 388 Rochester v. Levering, 104 Ind. 562, 209, 211 Rockhill V. Nelson, 24 Ind. 295, 416, 418 Rodefer v. Fletcher, 89 Ind. 563, 68 Rogers v. Leyden, 127 Ind. 50, 4 V. State, 99 Ind. 218, 398 Roller V. Kling, 150 Ind. 159, 106, 140 Rollett V. Heiman, 120 Ind. 511, 409 Romona, etc., Co. v. Tate, 12 Ind. App. 57, 296 Roose V. Roose, 145 Ind. 162, 35, 73, 78, 399 Rosa V. Prather, 103 Ind. 191, 157 Eosenbower v. Schuetz, 141 Ind. 44, 192, 331 Eosenstien v. State, 9 Ind. App. 290, 187 Rosenzuergv. Frazer, 82 Ind. 342, 68 Ross V. Banta, 140 Ind. 120, 237, 300, 353, 394 V. Boswell, 60 Ind. 235, 187 V. Conwell, 7 Ind. App. 375, 96 V. Davis, 97 Ind. 79, 32 V. Faust, 54 Ind. 471, 186 V. Stockwell, 17 Ind. App. 77, 312, 313, 317 Rosser v. McColly, 9 Ind. 587, 398 Rousseau v. Corey, 62 Ind. 250, 134 Rout V. Mnde, 118 Ind. 123, 186, 395 Rownd V. State, — Ind. — , 62 N. E. Rep. 395, 345 Roy V. Eowe, 90 Ind. 54, 58, 412 Royse v. Bourne, 149 Ind. 187, 48, 60 V. Turnbaugh, 117 Ind. 539, 157 Ruch V. Biery, 110 Ind. 444, 135 Rudolph V. Landwerlen, 92 Ind. 34, 65 Ruger.v. Bungan, 10 Ind. 451, 61 Runnels v. Kaylor, 95 Ind. 503, 318 Runner v. Scott, 160 Ind. 441, 297, 411 Ruschaupt V. Carpenter, 63 Ind. 359, 9,125,250,385,386 Rusk V. Gray, 74 Ind. 231, 139 Euss V. Euss, 142 Ind. 474, 33, 53, 69, 173 Ryan v. State,. 6 Ind. App< 196, 46 s Sagasser v. Wynn, 88 Ind. 226, 270 Sage V. State, 127 Ind. 15, ,73, 408 Salem Bedford S. Co. v. Hobbs, 144 Ind. 146, 176 Salander v. Lockwood, 66 Ind. 285, 29 Sanders v. Hartge, 17 Ind. App. 243, 185 v. State, 77 Ind. 227, 183 V. Weelburg, 107 Ind. 266, 368 Sandford Tool Co. v. Mullen, 1 Ind. App. 204, 39 Sargent v. State, 96 Ind. 63, 164, 165 Saunders v. Montgomery, 143 Ind. 185, 203, 204 Sauntman v. Maxwell, — Ind. — , 54 N. E. Eep. 397, 107 Scanhn v. Stewart, 6 Ind. App. 151, 59,102,103,173 Schaffner v. Kober, 2 Ind. App. 409, 29 Schleuter v. Canatsy, 148 Ind. 384, 106, 122 TABLE OF CASES. XXXVU [ijp/e!'creces are to Pages'] Schlotter v. State, 127 Ind. 493, 72 73 399 Schmidt v. Draper, 137 Ind. 249, ' 361 V. Wright, 88 Ind. 56, 244, 297, 333 V. Zahrndt, 148 Ind. 447, 69 Sehnurr v. Stultz, 119 Ind. 429, 66, 67, 78, 402 School City v. Heinzman, 13 Ind. App. 195, 174 School Corporation, ^tc, v. Rus- selville Lodge, etc., 140 Ind. 422, 106 Schoonover v. Reed, 65 Ind. 313, 318 Schori V. Stephens, 62 Ind. 441, 418 Schrichte v. Stites' Estate,127 Ind. 472, 321, 345 Schulties v. Keiser, 95 Ind. 159, 270 Schwartz v. Parsons (Ind. App.), 53 N. E. Rep. 785, 389, 391 Scott V. Board, 101 Ind. 42, 362 V. Hull, 14 Ind. 136, 19 Scotten V. Divilbliss, 60 Ind. 37, 29 V Randolph, 96 Ind. 581, 366 Searle v. Whipperman, 79 Ind. 424, 160 Sears v. Runner, 14 Ind. App. 695, 366 Secor V. Souder, 95 Ind. 95, 74 Seibert v. State, 95 Ind. 471, 32 Seig V. Long, 72 Ind. 18, 54, 318 Seigel V. Metzger, 1 Ind. App. 367, 161, 162 Seisler v. Smith, 150 Ind. 88, 194, 300 Sellers v. Meyers, 7 Ind. App. 148, 394, 395 Sertel V. Graeter, 112 Ind. 117, 64 Seward v. Clark, 67 Ind. 289, 140, 251, 259 Seymour, etc., Co. v. Brodhecker, 130 Ind. 389, 42, 51, 168 Shaefer v. Nelson, 17 Ind. App. 489, n6, 154, 232, 234, 243 Shafer v. State, 74 Ind. 90, 864 Shaw V. Ayers, 17 Ind. App. 614, 283 V. Kent, 11 Ind. 80, 369 Shea V. City of Muncie, 148 Ind. 14, ■ 181, 202 Sheeks v. Fillion, 3 Ind. App. 262 32 71 Sheets v. Bray, 125 Ind. 33, ' 65 Sheffer v. Hines, 149 Ind. 413, 408 Shepard v. Goben, 142 Ind. 318, 367, 400 Sherlock v. Ailing, 44 Ind. 184, 84 Shewalter v. Bergman, 132 Ind. 556, 43 Shields v. State, 149 Ind. 395, 401 Shirley v. Hagar, 3 Blackf . 225, 19 Shipman v. State, 38 Ind. 549, 67 Shoemaker v. Board, etc., 36 Ind. 175, 58, 164, 214, 412 V. Smith, 74 Ind. 71, 60, 200, 203 V. Smith, 100 Ind. 40,^ 382 V. South Bend, etc., Co., 7 Ind. App. 102, 98, 102, 103, 206 Shoffer v. Milwaukee, etc., Ins. Co., 17 Ind. App. 204, 185 Shoffner v. State, 93 Ind. 519, 61 Shoner v. Pennsylvania Co., 130 Ind. 170, 352 Shoonover v. Reed, 65 Ind. 313, 40, 46, 47 Short V. State, 63 Ind. 376, 397, 398 V. Stutsman, 81 Ind. 115, 132, 133, 134 V. West, 30 Ind. 367, 62 Shoultz V. McPheeters, 79 Ind. 373, 410 Shropshire v. Kennedy, 84 Ind. Ill, 392 Shrover v. Simons, 14 Ind. App. 631, 261, 263 Shugart v. Miles, 125 Ind. 445, 4, 38, 130, 132, 133 Shular v. State, 105 Ind. 289, 77, 78, 400 Shulse V. McWilliams, 104 Ind. 512, 43 Shulties V. Keiser, 95 Ind. 159, 326 Shuman v. Collis, 144 Ind. 333, 220, 221, 230, 236, 246, 325 Siberry v. State, 149 Ind. 684, 2, 11, 72, 76, 178, 277, 279, 284, 345 348 399 Sibert v. Copeland, 146 Ind. 387, ' 208 Sidener v. Davis, 87 Ind. 342, 32, 202 Sievers v. Peters, etc., Co., 151 Ind. 642, 36, 344 Sills V. Lawson, 133 Ind. 137, 164 Simmons v. Beazel, 125 Ind. 362, 140 Simons v. Simons, 129 Ind. 248, 8, 13, 135, 151 Simonton v.. Huntington, etc., Co., 12 Ind. 380, 44 Simpson v. Pearson, 31 Ind. 1, 120 127 152 Sims v. Hines, 121 Ind. 534,' ' 112 Singer v. Tormoehlen, 150 Ind. 287, 181, 193, 202, 300 Sipe V. Holliday, 62 Ind. 4, 184 Skaggs V. City of Martinsville, 140 Ind. 476, 178, 277, 279 V. State, 108 Ind. 53, 67, 361 Skinner v. Deming, 2 Ind. 558, 184 Slagle V. Bodmer, 58 Ind. 465, 113 121 324 Slauterv. Favorite, 107 Ind. 291,' 361, 368 XXXVlll TABLE OF CASES. \_References are to Pages."] Slessman v. Crozier, 80 Ind. 487, 203 Sloan V. Lowder (Ind. App.), 54 N. E. Rep. 135, 140 Small V. Kennedy, 12 Ind. App. 155, 126,262,356 Smith V. Barber (Ind.), 53 N. E. Rep. 1014, 356 V. Baugh, 32 Ind. 163, 41 V. Bryan, 74 Ind. 515, 157 V. Downey, 132 Ind. 83, 95, 98 V. Flack, 95 Ind. 116, 46,81 V. Goelz, 20 Ind. App. 142, 3, 176, 309 V. Goodknight, 121 Ind. 312, 377 V. Harris, 79 Ind. 104, 398 V. James, 131 Ind. 131, 29, 38, 52, 60, 133, 173 V. Junction R. Co., 29 Ind. 546, 164, 216, 332 V. McDaniel, 5 Ind. App. 581, 274, 277, 304 V. McKean, 99 Ind. 101, 28, 60 V. Muncie Nat'I Bank, 29 Ind. ' 158, 184 V.Parker, 148 Ind. 127, 362 V. Ryan, 83 Ind. 152, 194 V. Smith, 106 Ind. 43, -57, 404, 408 V. State, 5 Ind. 541, 381 V. State, 137 Ind. 198, 11, 12, 179, 180, 330 V. State, 140 Ind. 340, 174, 179, 180, 216, 274, 283, 288, 330 V. State, 143 Ind. 685, 40, 43, 66, 402 V. State, 145 Ind. 176, 48, 49 V. Stump, 12 Ind. App. 359, 76 V. Walker, 7 Ind. App. 614, 48 V. Wells Mfg. Co., 144 Ind. 266, 193, 220, 221, 236, 246, 269, 270, 271, 326 Smith, etc., v. Byers, 20 Ind. App. 51, ■ 392 Smythe v. Boswell, 117 Ind. 365, 148, 155,280, 231, 241, 242, 304, 327 Snell V. Maddux, 20 Ind. App. 169, 366 Snyder v. State, 59 Ind. 105, 397 V. State, 124 Ind. 335, 154, 299 Sohn V. Marion, etc., G. R. Co., 73 Ind. 77, 27, 81 Sonntag v. Klee, 148 Ind. 536, 161, 162, 301, 331, 334 Souders v. Jeffries, 98 Ind. 31, 366 South Bend, etc., Co. v. Larger, 11 Ind. App. 367, 403, 404 Spacy V. Evans, 152 Ind. 431, 344 Spaulding v. Spaulding, 133 Ind. 122, . 389 V. Thompson, 12 Ind. 477, 121 Sparklin v. Wardens, etc., 119 Ind. 535, 21, 283 Speer v. Davis, 38 Ind. 271, 122 Spence v. Bo&rdj 117 Ind. 573, 361, 368 Sphung V. Moore, 120 Ind. 352, 361,368 Spitznogle v. Ward, 64 Ind. 30, 414 Springer v. By ram, 137 Ind. 15, 65 Squires v. State, 3 Ind App. 114, 397 Stair v. Richardson, 108 Ind. 429, 39 Stalcup v. State, 146 Ind. 270, 142 Standard Oil Co. v. Bowker, 141 Ind. 12, 59 Stanford v. Stanford, 42 Ind. 485, 414 Stanley v. Dunn, 143 Ind. 495, 361 V. Sutherland, 54 Ind. 339, 61 Stanton v. Kenrick, 135 Ind. 382, 393 V. State, 74 Ind. 503, 20 Starkey v. Starkey, 136 Ind. 349, 201 Starner v. State, 61 Ind. 360, 134 Starnes v. Allen, 151 Ind. 108, 48, 50 Staser v. Hogan, 120 Ind. 207, 64, 389, 399 State V. Allen, 94 Ind. 441, 143 V. Arnold, 140 Ind. 628, 188 V. Arnold, 144 Ind. 651, 59, 143, 144, 146, 362, 364, 404, 406 V. Bailey, 16 Ind. 46, 183 V. Banks, 25 Ind. 495, 122 V. Bartlett, 9 Ind. 569, 130, 134 V. Biddle, 36 Ind. 138, 8, 88, 372, 374, 375, 377, 395 V. Bins, 9 Ind. App. 280, 142 V. Board, 45 Ind. 501, 377 V. Board, etc., 92 Ind. 133, 226, 269, 375 V. Bowman, 103 Ind. 69, 361 V. Caldwell, 115 Ind. 6, 368 V. Campbell, 67 Ind. 302, 130 V. Chase, 41 Ind. 356, 153 V. Christian, 18 Ind. App. 11, 97, 354 V. Cooper, 103 Ind. 75, 29, 146 V. Cunningham, 101 Ind. 461, 335 V. Curry, 134 Ind. 133, 405 V. Day, 52 Ind. 483, 130, 134 V. Delano, 34 Ind. 52, 12, 181, 199 V. Demaree, 80 Ind. 519, 375 V. Denny, 118 Ind. 449, 183 V. Dillon, 9 Ind. App. 554, 131 v: Dixon, 97 Ind. 125, 320, 345 V. Downs, 148 Ind. 324, 183, 188 V. Dufour, 63 Ind. 567, 397, 398 V. Dyer, 99 Ind. 426, 40, 41, 375, 376 V. Edwards, 11 Ind App. 226, 327 V. Engle, 127 Ind. 457, 377 V. Evansville R. Co., 107 Ind. 581, 112, 113, 142, 143 TABLE OF CASES. XXX2X \_Beferences are to Pages. ^ State V. First Nat'l Bank, 89 Ind. 302, 192, 209 V. Flemons, 6 Ind. 279, 47 V. Fletcher, 1 Ind. App. 581, 97 V. Friedley, 151 Ind. 404, 6, 7, 26, 40, 374, 375 V. Gardner, 8 Ind. App. 440, 363 V. Gramelspacher, 126 Ind. 398, 187 V. Gray, 93 Ind. 303, 389 V. Gregory, 119 Ind. 503, 20, 36, 211 V. Hall, 58 Ind. 512, ' 130 V. Hallowell, 91 Ind. 376, 130, 131, 142, 144, 312, 313, 315 V. Halter, 149 Ind. 292, 24, 31, 284, 312, 320, 345 V. Hamilton, 62 Ind. 409, 130, 142, 144 V. Harris, 89 Ind. 363, 210, 211, 305 V. Herod, 21 Ind. App. 177, 7, 113, 324 V. Hodgin, 139 Ind. 498, 130, 144, 145, 192, 299, 331 V. Hogriever, 152 Ind. 652, 144 V. Howe, 64 Ind. 18, 394 V. Hunt, 137 Ind. 537, 33, 34, 45, 131, 142, 175 V. Johnson, 102 Ind. 247, 143 V. Jones, 3 Ind. App. 121, 189 V. Julian, 93 Ind. 292, 366 V. Kern, 127 Ind. 465, 131 V. Klaas, 42 Ind. 506, 329 V. Kolsem, 130 Ind. 434, ' 161 V. Krug, 94 Ind. 366, 17, 174, 266 v; Luse (Ind.), 53 N. E. Eep. 459, 51 V. McDonald, 106 Ind. 233, 185 V. McGill, 12 Ind. App. 665, 317 V. Menaugh, 151 Ind. 260, 293 V. Mills, 82 Ind. 126, 356 V. Mount, 151 Ind. 679, 216, 293, 332, 340, 343, 351 V.Noble, 118 Ind. 350, 98 V. Noland, 29 Ind. 212, 404 V. Ohio Oil Co., 150 Ind. 21,293,294 V. Overholser, 69 Ind. 144, 130 V. Phillips, 5 Ind. App. 122, 97 V. Porter, 134 Ind. 63, 377 , V. Quick, 73 Ind. 174, 156, 248, 328 V. Eoss, 4 Ind. App. 480, 12, 156, 198, 212 V. Eousch, 60 Ind. 304, 143 V. Ruff, 6 Ind. 38, 231, 239 V. Ruhlman, 111 Ind. 17, 368 V. Sevier, 117 Ind. 338, 383 V. Slick, 86 Ind. 501, 39, 40, 375, 376 V. Smith, 8 Ind. 485, 7 V. Spencer, 92 Ind. 115, 112, 115, 130, 142, 144, 323 V. Sutton, 99 Ind. 300, 65 State V. Swift, 69 Ind. 605, 188 V. Taylor, 5 Ind. App. 29, 74 V. Terre Haute, etc., R. Co., 64 Ind. 297, 320 V. Templin, 122 Ind. 235, 75, 81 V. Thorn, 28 Ind. 306, 44 V. Trustees, 5 Ind. 77, 183 V. Trustees, 114 Ind. 389, 368 V. Tumey, 81 Ind. 559, 131, 384 V. Union, etc.. Bank, 145 Ind. 537, 116, 128, 151 V. Vanderbilt, 116 Ind. 11, 130, 168 V. Vanvalkenberg, 60 Ind. 302, 135 V. Wallace, 41 Ind. 445, 167, 168, 376, 379, 384 V. Walters, 64 Ind. 226, 297 V. Webster, 150 Ind. 607, 293, 294 V. Weil, 89 Ind. 286, 131, 312 V. White, 16 Ind. App. 260, 375, 376, 377 V. Windstandley, 151 Ind. 495, 38, 277 V. Wolever, 127 Ind. 306, 412 Stauffer v. Salamonie, etc., Co., 147 Ind. 71, 215,216,332 Steeple v. Downing, 60 Ind. 478, 356 Stephens v. Stephens, 51 Ind. 542, 161, 326, 331 Stephenson v. Boody, 139 Ind. 60, 359, 420, 421 V. State, 110 Ind. 358, 401 Sterne v.Vert,lll Ind.408, 161, 163, 331 Stevens v. Stevens, 127 Ind. 560, 4, 368, 402 Stevens Store Co. v. Hammond and.App.),51N.E. Rep. 506, 49 Stewartv. AdamM. &A. Co (Ind.), Dec. 22, 1899, 41 V. Babbs, 120 Ind. 568, 208 V. Patrick, 5 Ind. App. 50, 353 V. Smith, 111 Ind. 526, 400 V. State, 113 Ind. 505,' 404, 406 Steinmetz v. Versailles, etc., Co., 57 Ind. 457, 186 Stipp V. Claman, 123 Ind. 532, 390, 400, 401 Stockwell V. Brant, 97 Ind. 474, 366 V. State, 101 Ind. 1, 187 V. Thomas, 76 Ind. 506, 65 Stotsenberg v.Fordice,142 Ind.490, 345 Stout V. Board, etc., 107 Ind. 343, 183, 413, 414 V. Harlem, 20 Ind. App. 200, 74, 77, 292, 293, 294, 295 V. Turner, 102 Ind. 418, 405 Stratton V. Kennard, 74 Ind. 302, 52 Strong V. State, 105 Ind. 1, 361 Studabaker v. Markley, 7 Ind. App. 368, 215, 218 xl TABLE OF CASES. [Beferences are to Pages.'] Stultz V. State, 65 Ind. 492, 184, 188 V. Zahn, 117 Ind. 297, 261, 385 Sturgeon v. Gray, 96 Ind. 166, 122 Sturm V. State, 74 Ind. 278, 12, 60, 141, 156, 200, 212 Sullivan v. Haug, 82 Mich. 548, 111 V. O'Conner. 77 Ind. 149, 61 Summers v. Oopeland, 125 Ind. 466, 130 V. State, 51 Ind. 201, 244 Sumner v. Goings, 74 Ind. 293, 311 Sunnv Side, etc., Co. v. Eeitz, 14 Ind.. App. 478, 181, 202, 284, 345 Superior Oil Co. v. Whitman, 19 Ind. App. 149, 204 Supreme Council v. Boyle, 15 Ind. App. 342, 149, 150, 207, 251, 258, 259, 260, 261, 263, 386 Supreme Lodge v. Johnson, 78 Ind. 110, 34 Supreme Sitting, etc., v. Baker, 134 Ind. 293, 117, 118 Sutherland v. Hankins, 56 Ind. 343, 77 Sutherlin v. State, 108 Ind. 389, 65 Swaim v. Swaim, 134 Ind. 596, 368 Swales V. Grubbs, 126 Ind. 106, 187 Swan V. Clark, 80 Ind. 57, 32 Swank v. Hufnagle, 111 Ind. 453, 184 Sweeney, Ex parte, 131 Ind. 81, 9, 86, 91, 95, 98, 104 Sweetser v. McCrea, 97 Ind. 404, 46 Swift V. Ratlift, 74 Ind. 426, 400, 401 Swihartv. Shaffer, 87 Ind. 208, 20 Symmes v. Major, 21 Ind. 443, 186 Taggart v. State, 142 Ind. 568, 417 Tate V. Hamlin, 149 Ind. 94, 16, 154, 230, 231, 232, 233, 234, 235, 237, 241, 243 Taylor v. Birely, 130 Ind. 484, 182, 297 V. Board, 120 Ind. 121, 119, 123, 134, 324 V. Elliott, 52 Ind. 588, 218, 332, 333, 343, 350, 411 V. Elliott, 53 Ind. 441, 218, 332, 333, 343 ■ V. Johnson, 113 Ind. 164, 57, 58, 404 Teegarden v. Lewis, 145 Ind. 98, 25. 106, 348 Tegarden v. Phillips, 14 Ind. App. 27, 297 Tenbrook v. Maxwell, 5 Ind. App. 353, 136, 152, 251, 259, 297 Terre Haute, etc., R. Co. v. Baker, 4 Ind. App. 66, 353 V. Bissau, 108 Ind. 113, 38, 40 V. McCorkle, 140 Ind. 613, 409 V. Soice, 128 Ind. 105, 389 V. Pierce, 95 Ind. 496, 186 Test V. Larsh, 76 Ind. 452, 161 Teutonia Loan, etc., Co. v. Tur- rell, 19 Ind. App. 469, 184 Tewksbury, etc., E. Co. v. How- ard, 138 Ind. 103, 187, 365 Thames Loan, etc., Co. v. Beville, 100 Ind. 309, 3, 47, 206 Thatcher v. Turnev, 7 Ind. App. 667, " 205 Thiebaud v. Dufour, 57 Ind. 598, 137, 138 Thom V. Savage, 1 Blackf. 52, 386 Thoma v. State, 86 Ind. 182, 192, 331 Thomas v. Chicago, etc., R. Co., ^139 Ind. 462, 7, 113, 323, 324 V. Griffin, 1 Ind. App. 457, 46 V. Hawkins, 13 Ind. App. 318, 394 v. Simmons, 103 Ind. 538, 20, 209, 210, 211 V. State, 103 Ind. 419, , 361 Thompson v. Boden, 81 Ind. 176, 2 V. Connecticut, etc., Co., 139 Ind. 325, 235, 236, 246, 262 V. Goldthwaite, 132 Ind. 20, 107 Thomson v. Madison, etc., Assn., 103 Ind. 279, 31 Thornburg v. Buck, 13 Ind. App. 446, 66 Tibbits V. O'Connell, 66 Ind. 171, 60 Tinder V. Duck Pond, etc., Assn., 38 Ind. 555, 414 Todd V. State, 25 Ind. 212, 61 Toledo, etc., R. Co. v. Reeves, 8 Ind. App. 667, 96 V. Rogers, 48 Ind. 427, 41, 42 V. Stephenson, 131 Ind. 203, 393 Tomlinson v. Harris, 130 Ind. 339, 318 Toney v. Toney, 73 Ind. 34, 67 Toohv V. Sarvis, 78 Ind. 474, 62 Towell V. Hollweg, 81 Ind. 154, 405 Town of Albion v. Hetrick, 90 Ind. 545, 184 Town of Andrews v. Sellers, 11 Ind App. 301, 101, 108 Town of Brazil v. Kress, 55 Ind. 14, 2, 7 Town of Brookville v. Gagle, 73 Ind. 117, 91 Town of Cicero v. Williamson, 91 Ind. 541, 185 Town of Hardensburg v. Cravens, 148 Ind. 1, 420, 421 TABLE OF CASES. xli [Beferences are to Pages.'] Town of Ladoga v. Linn, 9 Ind. App. 15, 207 Town of Markle v. Hunt, 12 Ind. App. 353, 404 Town of Monticello v. Kennard, 7 Ind. App. 135, 352 Town of North Manchester v. Oustal, 132 Ind. 8, 124 Town of Thorntown v. Fugate, 21 Ind. App. 537, 184 Town of Whiting v. Doob, — Ind. — , 52 N. E. Rep. 198, 174 Town of Williamsport v. Smith, 2 Ind. App. 360, 195 Townsend v. State, 132 Ind. 315, 32 Traoewell v. Farnsley, 104 Ind. 497, 365 Traders' Ins. Co. v. Carpenter, 85 Ind. 350, 160, 161 Trammell v. Chipman, 74 Ind. 474, 190, '193, 407 Travelers' Ins. Co. v. Kent, 151 Ind. 349, 344 V. Leeds, 38 Ind. 444, 41, 42 V. Prairie S. Tp., 151 Ind. 36, 283, 284, 286 Trayser v Trustees, 39 Ind. 556, 357 Trentman v. Swartzel, 85 Ind. 443, 46 Trout V. Perciful, 105 Ind. 532, 64 V. State, 107 Ind. 578, 361, 404 Truitt V. Truitt, 38 Ind. 16, 309 Truman v. Scott, 72 Ind. 258, 222, 245 Tucker v. Call, 45 Ind. 31, 59 V. Hyatt, 151 Ind. 332, 6 V. Sellers, 130 Ind. 514, 273, 274, 276, 283, 411 Turbeville v. State, 42 Ind. 490, 184, 186 Turner v. State, 102 Ind. 425, 66 Tyler v. Bowlus, 54 Ind. 353, 60 U Uhl V. Harvey, 78 Ind. 26, 867 Ulrich V. Hervey, 76 Ind. 107, 32 Union Central, etc., Co. v. Huyck, 5 Ind. App. 474, 173 Union, etc., R. Co. v. Moore, 80 Ind. 458, 401 Union S. Tp. v. First Nat'l Bank, 102 Ind. 464, 355 United States v. Wanson, 1 Gal- lison U. S. C. C. 5, 1 U. S. Express Co. v. Rawson, 106 Ind. 215, 205, 406, 407, 410 Upland V. Ginn, 14 Ind. App. 431, 90, 102, 103 Urmston v. State, 73 Ind. 175, 188 V Vail v. Lindsay, 67 Ind. 528, 213, 219, 246 Vance v. Schayer, 76 Ind. 194, 14, 116, 127, 150, 327 VanDolsen v. State, 1 Ind. App. 108, 28, 32, 33, 34 Vandorn v. Bodly, 38 Ind. 402, 183 Vandyne v. State, 130 Ind. 26, 67, 78 Vannatta v. Duffy, 4 Ind. App. 168, 74 Vannoy v. Klein, 122 Ind. 416, 367 VanSickle v. Belknap, 129 Ind. 558, 34 Veach v. Pierce, 6 Ind. 48, 301 Vermillion v. Nelson, 87 Ind. 194, 48 Vice V. Jones, 4 Ind. App. 426, 288 Vincennes, etc., Co. v. White, 124 Ind. 376, 38, 39 Vogel V. Harris, 112 Ind. 494, 400 Vordermark V.Wilkinson, 147 Ind. 56, 157, 220, 221, 222, 226, 236, 245, 305, 324, 325 Voorhees v. Indianapolis, etc., Co., 140 Ind. 220, 115 W Wabash Paper Co. v. Webb, 146 Ind. 303, 43 Wabash, etc., Co. v. Crumrine, 123 Ind. 89, 363 Wabash K. Co. v. Dykeman, 133 Ind. 56, 28, 116, 117, 128, 150, 151, 252 V. Morgan, 132 Ind. 4?0, 392, 393 Wachstetter v. State, 99 Ind. 290, 400 Waddle v. Magee, 81 Ind. 247, 82, 402 Wagner v. Wagner, 73 Ind. 135, 205 Wagoner v. Wilson, 108 Ind. 210, 51 Wales v. Miner, 89 Ind. 118, 367 Walker v. Beggs, 82 Ind. 45, 64 V. Heller, 73 Ind. 46, 17, 265, 353 V. Hill, 111 Ind. 123, 177, 226, 245, 297 V. State, 102 Ind. 502, 313, 317, 318, 319, 392, 396, 401 V. Steele, 121 Ind. 436, 139' Wallace v. Exchange Bank, 126 Ind. 265, 65 v. Kirtley, 98 Ind. 485, 64 Walls V. Anderson, etc., E. Co., 60 Ind. 56, 3, 47 V. Palmer, 64 Ind. 493, 17, 265, 372, 374 V. State, 140 Ind. 16, 286, 357, 361 xlii TABLE OF CASES. [Meferences are to Pages.'\ Walsh V. Brockway, 13 Ind. App. 70, 221 V. State, 142 Ind. 357, 416 Walter v. Walter, 117 Ind. 247, 396, 408 Walton, Ex parte, 79 Ind. 600. See Ex parte Walton. Wantland v. State, 145 Ind. 38, 48, 60 Warbritten v. Demorett, 129 Ind. 346, • 300 Ward V. Colyhan, 30 Ind. 395, 186 Warden v. Nolan, 10 Ind. App. 334, 393, 401 Waring v. Fletcher, 152 Ind. 620, 17, 265, 266 Warner v. Campbell, 39 Ind. 409, 320 Warren v. First Nat'l Bank, 149 111. 9, 416 Warrick Assn. v. Hougland, 90 Ind. 115, 28, 128 Wartena v. State, 105 Ind. 445, 402 Wasson v. First Nat'l Bank, 107 Ind. 206, 186, 188 Waterman v. Morgan, 114 Ind. 237 42 V. State, 116 Ind. 51, 28 Watson V. Finch, 150 Ind. 183, 177, 319 Watts V. Moffett, 12 Ind. App. 329,- 66, 67 Waymire v. Waymire, 144 Ind. 329, 106 Wayne County Tp. Co. v. Berry, 5 Ind. 286, 4 Weakley v. Wolf, 148 Ind. 208, 49, 50, 373 Weander v. Johnson (Neb.), 60 N. W. Eep. 353, 8, 363 Webb V. Carr, 78 Ind. 455, 410 V. Simpson, 10^ Ind. 327, 140, 251, 259, 328 Weik V. Pugh, 92 Ind. 382, 366 Weisman v. Green, 20 Ind. App. 699, 148, 150 Welcome v. Boswell, 54 Ind. 297, 389 Weller v. Bectell, 2 Ind. App. 228, 71 Welsh V. Brown, 8 Ind. App. 421, 73, 74 V. State, 126 Ind. 71, 84, 383 Westbrook v.Aultman-Millcr Co., 3 Ind. App. 83, 78 Westerfleld v. Spencer, 61 Ind. 339, 60 Western Assn. v. Koontz, 17 Ind. App. 756, 2, 58 Western, etc., Co. v. Koontz, 17 Ind. App. 54, 7 V. McCartv, 18 Ind. App. 449, 408 V. Studebaker, 124 Ind. 176, 70 Western U. Tel. Co. v. Buskirk, 107 Ind. 649, 400 V. Ferris, 103 Ind. 91, 21, 283, 284 V. Hamilton, 50 Ind. 181, 346 V. Kilpatrick, 97 Ind. 42, 21, 65, 82, 202, 283, 402 V. Locke, 107 Ind. 9, 114, 119, 123, 324 V. Sciixjle, 103 Ind. 227, , 92 V. Stratemier, 11 Ind. App. 601, 354 V. Taggart, 163 U. S. 1, 413 V. Todd, 54 N. E. Eep. 446, 178 V. Trissal, 98 Ind. 566, 36 Wheeler v. Barr,6 Ind. App. 530, 74, 76, 79, 148, 150, 179, ISO, 329 Whipple V. Shewalter, 91 Ind. 114, 31 White V. Gregorj', 126 Ind. 96, 37 V. McGrew, 129 Ind. 83, 70 White S. M. Co. v. Gordon, 124 Ind. 495, 400 Whittem v. State, 36 Ind. 196, 111 Wickham v. Hess, 38 Ind. 183, 192 Wiesman v. Green, 20 Ind. App. 699 227 Wiggins V. McCoy, 87 N. C. 499, 114 Wiggs V. Koontz, 43 Ind. 430, 191 Wilcox V. Moudy, 82 Ind. 219, ]87 Wiles V. State, 33 Ind. 206, 189 Wiley V. Coovert, 127 Ind. 559, 217, 361, 365 Wilkins v. State, 113 Ind. 514, 188 Willard v. Albertson, — Ind. — , 63 N. E. Rep. 1076, 219, 247, 271 Willets V. Eidgway, 9 Ind. 367, 357 William Deering, etc., Co. v. Al-m- strong, 18 Ind. App. 687, 79 Willianis v. Freshour, 136 Ind. 361, 176, 309 V. Hanly, 16 Ind. App. 464, 362 V. Henderson, 90 Ind. 577, 318 V. Richards, 152 Ind. 528, 3, 162, 216, 301, 331, 332, 334, 342 V. Eiley, 88 Ind. 290, 190 V. State, 130 Ind. 58, 97 Williamson v. Brandenberg, 6 Ind. App. 97, 93, 204 Willis V. Bayles, 105 Ind. 363, 122 V. Owens, 43 Texas 41, 416, 417 Wilson V. Bennett, 132 Ind. 210, 9, 126, 251, 262 V. City of Wheeling, 19 W. Va. 323, 114 V. Clark, 11 Ind. 386, 184 V. Curtis, 161 Ind. 471, 96 V. Holloway, 70 Ind. 407, 274 ^ V. Kahn, 4Ind. App. 166, 21 V. McClain, 131 Ind. 335, 107 V. Stewart, 63 Ind. 294, 221 V. Talley, 144 Ind. 74, 389 TABLE OP CASES. xliii IBeferences are to Pages.'\ "Wilson V. Vance, 55 Ind. 394, 46 Winchester, etc., Oo. v. Carman, 109 Ind. 31, 368 V. Veal, 145 Ind. 506, 343 Windfall, etc., Co. v. Terwilliger, 152 Ind. 364, 43 Wines v. State Bank (Ind. App.), 53 N. E. Rep. 389, 388, 401 Winfield Tp. v. Wise, 73 Ind. 71, 124 Wingo V. State, 99 Ind. 343, 112, 142 Winsett V. State, 54 Ind. 437, 156 AVinstandley v. Breyfogle, 148 Ind. 618, 6, 26, 39, 177 Wiseman v. Linn, 39 Ind. 350, 177 Wishmier v. State, 110 Ind. 528, 3, 206 Witz V. Dale, 129 Ind. 120, 129, 203, 215 Wolf V. Goodwin, 2 Ind. App. 79, 177 Wolfe V. Evansville, etc., R. Co., 136 Ind. 383, 296 V. Pugh, 101 Ind. 293, 368 Wolverton v. Town of Albany, 152 Ind. 77, 107 Wood V. elites, 140 Ind. 472, 236 V. Ohio Falls Car Co., 136 Ind. 598, 47 V. Ostram, 29 Ind. 177, 98, 99 V. Wood, 51 Ind. 141, 113, 137, 138 Woodard v. Baker, 116 Ind. 152, 53, 130, 132, 134 V. Meyers, 15 Ind. App. 42, 90 Woods V. Board, 128 Ind. 289, 369 Woodworth v. State, 145 Ind. 276, 404, 406 Wooley V. State, 8 Ind. 277, 113, 121 Working v. Gam, 148 Ind. 546, 61, 66 World, etc., Co. v. Marlin, 151 Ind. 630, , 365 Worley v. Moore, 97 Ind. 15, 367, 399 Wright V. Abbott, 85 Ind. 154, 65 V. Hanna, 98 Ind. 217, 64 V. Manns, 111 Ind. 422, 139, 147, 149, 153, 155, 233, 327 V. Nipple, 92 Ind. 310, 65 V. Shelt, 19 Ind. App. 1, 129 V. Wilson, 98 Ind. 112, 381, 883 Wysor V. Johnson, 130 Ind. 270, 27, 38, 39, 40, 98 X Xenia E. Co. v. Drook, 140 Ind. 259, 283 Xenia, etc., Co. v. Macy, 147 Ind. 568, 57, 205, 404, 407, 408 Yates V. Lancing, 5 Johns. 282, 412, 415 Yearly v. Sharp, 96 Ind. 469, 135 Yost V. Conroy, 92 Ind. 464, 32 V. Yost, 141 Ind. 584, 390 Young V. Miller, 145 Ind. 652, 106 z Zehner v. Aultman, 74 Ind. 24, 35 Zeller v. City of Crawfordsville, 90 Ind. 262, 203 V. Griffith, 89 Ind. 80, 78 Zimmerman v. Gaumer, 152 Ind. 552, 181, 202, 221 V. Makepeace, 152 Ind. 199, 121, 127, 153 V. State, 4 Ind. App. 583, 72 RULES OF THE SUPREME AND APPELLATE COURTS. Adopted January 4, igcx), to take effect November 26, 1900. APPEALS. 1. If an appeal is taken in term time, but the transcript is not filed in the office of the clerk within the time limited, the appeal as of term shall be deemed to be abandoned, and the appeal shall be held to be taken as of the time the transcript is filed, and shall be governed as to notice and like matters by the rules and practice governing appeals in vacation. To constitute an appeal in term time, the following steps are essential : First. An appeal must be prayed and granted within the term at which judgment is rendered, or at which a motion for a new trial filed in due sea- son is overruled. Second. An appeal bond must be filed before the expiration of that term or within such time after it expires as may have been granted by order of court. Third. The appeal bond must be filed and approved in open court, or if filed in vacation, the order granting time to file it must have specified the penalty of the bond and named the sureties therein. Fourth. The transcript must be filed within sixty days after filing the bond. Fifth. The transcript must show that these steps were taken and must con- tain a copy of the bond. E.S. 1894, §650. Ewbank's Manual, §§ 91, 102, and authorities. 2. When an appeal is taken and notice is given below, the (xlv) xlvi RULES OF THE SUPREME COURT. transcript must be filed in the clerk's office within sixty days from the time of giving such notice; if the transcript is not so filed, the notice shall be without effect. Such abandonment does not affect the right of the appellant to take an ap-" peal by filing his transcript and giving another notice. Ewbank's Manual, § 154. PREPARATION OF TRANSCRIPTS. 3. The appellant shall cause the transcript to be neatly and securely bound and to be paged at the bottom and the lines of each page to be numbered. He shall also cause marginal notes on each page to be placed on the transcript in their ap- propriate places, indicating the several parts of the pleadings in the cause, the exhibits, if any, the rulings of the court, and the bills of exceptions. Where the evidence is set out by deposition or otherwise, the name of each witness and whether the examination is direct, cross or re-direct, shall be stated in the margin of each page. The appellant shall also note on the margin all motions and rulings thereon, the instructions given and refused, and shall prepare an index, referring to the initial page of the direct, cross and re-examination of each witness and of each pleading, exhibit and other paper in the record, such index to form the first page of the transcript. Failure to comply with this rule is cause for dismissing an appeal. Egan V. Ohio, etc., Ey. Co., 138 Ind. 274. Otis V. Weiss, — Ind. App. — , 53 N. E. 428. Ewbank's Manual, §§ 118, 119. ASSIGNMENT OF ERRORS AND CROSS-ERRORS. 4. The appellant shall, on the transcript, or upon some paper attached thereto, make a specific assignment of the er- rors upon which he relies, and he shall therein properly en- title the cause. Each specification of error shall be complete in itself, and shall be properly numbered. Amendments of the assignment of errors shall not be made after the cause is submitted, except upon notice and leave applied for in writing, nor shall leave be granted unless it appear that due care and RULES OF THE SUPREME COURT. xlvii diligence were exercised in the first instance to make the as- signment complete. An assignment of errors is necessary in a criminal case. May V. State, 140 Ind. 88. Ewbank's Manual, §141. The assignment of errors is a pleading and must be signed by the appellant or by his attorneys as such attorneys. State V. Delano, 34 Ind. 52. Thoma v. State, 86 Ind. 182. Levi V. Bray, 12 Ind. App. 9. Ewbank's Manual, § 131. Several assignments may be made by different appellants under a single title. Breyfogle v. Stotsenberg, 148 Ind. 552. Ewbank's Manual, § 126. 5. The appellee may, as of right and without notice, assign cross-errors within sixty days after the submission of the cause, but if cross-errors are not assigned within that time, then notice shall be given the appellant and leave applied for in writing. The application for leave to assign cross-errors shall show a satisfactory excuse for the failure to assign the cross-errors within sixty days from the time of the submission of the cause, or the application will be denied. There shall be no assignment of cross-errors allowed unless it is made within one year from the time the judgment appealed from was rendered. Any question may be presented by an assignment of cross-errors which the appellee could present by an independent appeal. Feder v. Field, 117 Ind. 386. Home V. Harness, 18 Ind. App. 214. Ewbank's Manual, §§ 139, 140. The dismissal of his appeal by appellant does not carry with it the cross- errors. Feder v. Field, 117 Ind. 386. Ewbank's Manual, § 140. PARTIES— PROCESS . 6. The assignment of errors shall contain the full names of xlviii RULES OF THE SUPREME COURT. all the parties, and process when necessary shall issue accord- ingly. All parties to the appeal is meant ; not necessarily all parties to the action below. Alexander v. Gill, 130 Ind. 485. Hogan V. Robinson, 94 Ind. 138. Ewbank'a Manual, §§ 146, 149. , Both christian name and surname must be given. Burke v. State, 47 Ind. 528. Ewbank's Manual, § 226. This rule does not apply to assignments of cross-errors. Nichol V. Henry, 89 Ind. 54. Ewbank's Manual, § 126. NOTICE. 7. Where notice is required under these rules, and it is not otherwise provided by them, or not otherwise provided by law, ten days' notice shall be deemed to be intended and required, but this rule shall not apply to cases where express provision is made, by law or by these rules, for notice. Ten days' notice in writing is required of all special motions except motions to submit in habeas corpus cases. Ewbank's Manual, § 167. APPEARANCES. 8. Appearances shall be entered in the clerk's office in writ- ing. 9. A joinder in error, or the filing of an answer or brief upon the merits by the party in person, or by his attorney, or an agreement in writing to submit, filed in the clerk's office or indorsed upon the record, shall be deemed an appearance within the above rule. An appearance shall.not be withdrawn except on leave and for cause shown. An appearance by appellee waives all objections to jurisdiction over him for lack of notice or otherwise, and all other merely formal objections to maintaining the appeal. Lowe V. Turpie, 147 Ind. 652. State V. Walters, 64 Ind. 226. Jones ¥. Henderson, 149 Ind. 458. Ewbank's Manual, §199. BULKS OF THE SUPREME COURT. , xlix MOTIONS: 10. On the days on which causes are called in open court motions may be made immediately after the opinions of the court are announced. 11. General motions shall be made by counsel in such or- der as may be convenient at the time to the court, but no counsel shall be entitled to make more than one motion until all other counsel present have had an opportunity to present motions. 12. When a motion is founded on a matter of fact, which is not admitted or apparent on the record, it must be supported by affidavit. The motion itself should also be sworn to. Newman v. Kiser, 128 Ind. 258. Ewbank's Manual, § 202. Counter affidavits may usually be filed in opposition to motions based on facts shown by affidavits. Ewbank's Manual, § 202. But see rule 34. 13. Special motions shall be in writing, and each motion shall state specifically the ruling desired and the grounds upon which the motion is based. Where it is necessary, the motion shall specifically refer to the line and page of the record. 14. Motions, except such general motions as are made in court upon the call of the docket, shall be filed with the clerk accompanied by such affidavits and briefs as are necessary to support them. 15. Notice shall be given of all motions except such as are filed in open court on the call of the docket, and except mo- tions for a certiorari made prior to the submission of the cause. The notice shall state the general character of the motion and the time fixed for hearing it, and together with proof of serv- ice, shall be attached to the motion when it is presented for filing. If the motion can not be heard on the day fixed, it will be taken up as soon afterward as may be convenient. If iv — App. Practice. 1 RULES OF THE SUPREME COURT. the motion is not well taken, all costs occasioned by it shall be taxed by the clerk against the party making it. At the time fixed for hearing, or at such subsequent time as may be convenient, the motion will be taken up and decided by the court on the papers and briefs filed with the clerk. Unless notice of a motion to dismiss the appeal is given the motion will be overruled without consideration. Dick V. Mullins, 128 Ind. 365. Ewbank's Manual, § 199. A copy of the motion should be incorporated in the notice, omitting the merely formal parts. Ewbank's Manual, § 167. Proof of service may be made by the«return of the sheriff, an acknowledg- ment of service, or an aflBdavit stating the time and manner of service. R. S. 1894, §489. Ewbank's Manual, § 159. SUBMISSION OF CIVIL CAUSES. 16. On Tuesday of the first week of each term the docket will be opened for submission of causes upon call or for such other steps as may be proper. At such times, if the cause be ready for submission, the same shall stand submitted either upon motion of the party or by the order of the court. The docket shall remain open from day to day during the sittings of the court for the submission of such causes as the court in its discretion may deem of a character requiring immediate submission. 17. A cause may be submitted by a written agreement filed with the clerk or indorsed upon the transcript. Agreement to submit waives all formal objections to the suflBciency of the appeal. State V. Board, 92 Ind. 133. Cooper V. Cooper, 86 Ind. 75. Ewbank's Manual, § 178. 18. Where the appellee objects to a submission of a cause under the act of April 13, 1885 (R. S. 1894, § 664); and files written objections, accompanied by a verified statement that the objections are made in good faith, the clerk shall not en- RULES OF THE SUPREME COURT. 11 ter a submission, but shall refer the matter to the court, and in such a case submission shall not be entered except upon the order of the court. When the clerk of this court enters an order of submission under the above mentioned act, he shall mail notice of such submission to one at least of the attorneys whose names are appended to the assignment of errors, and the clerk of this court shall also mail notice of the entry of submission to the clerk of the court from which the appeal came. In the absence of any objection a vacation civil appeal will be submitted thirty days after notice is served, if proof thereof is filed, and a term appeal thirty days after the transcript is filed. R. S. 1894, § 664. Ewbank's Manual, § 178. The time for filing briefs and taking other steps in an appeal dates from its submission. Ewbank's Manual, §§ 179, 190. SUBMISSION OF CRIMINAL CAUSES. 19. Criminal causes may be submitted immediately upon filing the transcript and notice, and the clerk shall at once en- ter the proper order of submission, or they may be submitted by written agreement. Criminal causes take precedence over civil causes. R. S. 1894, § 1962. Ewbank's Manual, § 196. SUBMISSION OF HABEAS CORPUS CASES. 20. On appeal in a case of habeas corpus, either party may submit, on motion, at any time after the appeal is perfected, provided he has given the opposite party, or his attorney, and any other person or persons having an adverse interest in the cause, three days' previous written notice of the intended mo- tion to submit. The notice, with the sheriff's return thereon, or where the notice has been served by any other person than the sheriff, the notice, with the acknowledgment of service thereof, or an affidavit stating the time and manner of service, shall be filed with the clerk of this court, before the motion to lii RULES OP THE SUPREME COURT. submit shall be made. Such causes may also be submitted by agreement or on call, as other cases. Note— This rule is not applicable to the apijeUate court. The supreme court has exclusive jurisdiction of appeals in habeas corpu's cases. Branson v. Studabaker, 133 Ind. 147. Ewbank's Manual, § 78. ARGUMENTS AND BRIEFS. 21 . The appellant shall have sixty days after submission in which to file his brief; and if the brief is not filed within the time limited the clerk shall enter an order dismissing the ap- peal. The appellee shall file his brief upon the assignment of errors within ninety days after submission. If cross-errors are assigned, the appellee shall file his brief thereon within sixty days from the date of the cross-assignment or the same will be stricken out. The appellant shall file his reply brief within fifteen days of the expiration of the time allotted appel- lee. If the appellee's brief on the assignment of errors and the appellant's reply brief are not filed within the time limited the clerk shall refuse to receive and file the same except upon leave of court first obtained for sufficient cause by the party in default. No supplemental or additional briefs by either party will be received . Further citations of authorities in support of any proposition stated in the briefs may be filed by either party at any time without comment or argument. On written application before the time for filing his brief has expired, and a showing by affidavit of sufficient cause, a party may obtain an extension of time for filing it. But the time for filing appellant's brief is never extended after the penalty of dismissal has been incurred. Smith V. Wells, etc., Co., 144 Ind. 266. Cline V. Gould, 17 Ind. App. 647. Ewbank's Manual, § 179. 22. The brief of appellant shall contain a short and clear statement disclosing: First. The nature of the action. Second. What the issues were. RULES OP THE SUPREME COURT. liii Third. How the issues were decided and what the judgment or decree was. Fourth. The errors relied upon for a reversal. Fifth. A concise statement of so much of the record as fully presents every error and exception, relied on, referring to the pages and lines of the transcript. If the insufficiency of the evidence to sustain the verdict or finding in fact or law is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely. The statement will be taken to be ac- curate and sufficient for a full understanding of the ques- tions presented for decision unless the opposite party in his brief shall make necessary corrections or additions. Following this statement, the brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in sup- port of them; and in citing cases the names of parties must be given, with the book and page where reported. No alleged error or point, not contained in this statement of points, shall be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing. 23. The brief of appellee on the assignment of errors shall point out any omissions or inaccuracies in appellant's state- ment of the record and shall contain a short and clear state- ment of the propositions by which counsel seek to meet the alleged errors and sustain the judgment or decree, or by which such errors are obviated. Following this statement, the brief shall contain the points and authorities relied on in like man- ner as required in appellant's brief. The brief of appellee on cross-errors shall be prepared in the manner required in the case of appellant's brief. The brief of appellant, in answer to the cross-assignment of errors, shall be prepared in the man- ner required of appellees irr answer to the assignment of errors. Reply briefs shall be prepared in manner like to answer briefs. 24. The brief of any party may be followed by an argument in support of such brief, which shall be distinct therefrom but liv RULES OF THE SUPREME COURT. shall be bound with the same. The argument shall be con- fined to discussion and elaboration of the points contained in the brief. The names of counsel shall be affixed to all briefs filed by them. The failure to support a specification of error either hy argument or the citation of authorities waives it. Hoover v. Weesner, 147 Ind. 510. Hamilton v. Hanneman, 20 Ind. App. 16. Ewbank's Manual, §188. 25. All briefs shall be printed or type-written in a neat and workman-like manner on white paper 9 by 7 inches, leaving a margin of at least one inch at the left side, bound in book or pamphlet form with a suitable cover containing the number and the title of the cause and the court in which the case is brought. The fifth part of the statement required by rule 22, may, however, be bound separately from the remainder of the brief. Not less than eight copies of each brief shall be filed with the clerk, one of which shall be for the use of the oppo- site party. 26. Upon written application by either party in a submitted cause the court will set it- down for oral argument, if the ap- plication is made witliin the time allowed for filing briefs; otherwise the court in its discretion will refuse the application. The court will order without application oral argument in such cases as it deems to require the same. When a cause is set down for oral argument, the clerk shall at once notify the respective counsel by mail. After a cause is set for oral argument the party who applied for it has no authority to waive the argument. Ewbank's Manual, § 195. 27. Oral argument shall be limited to some definite time not exceeding two hours (to be equally divided between the parties) except in cases in which counsel shall request and secure in advance of the argument a longer time. 28.. Oral argument shall be confined to the discussion of the propositions and authorities contained in the briefs. The fail- ure to discuss in oral argument points properly made in the EULES OF THE SUPREME COURT. Iv briefs shall not be deemed a waiver of such points, but they will be fully considered in determining the cause. PETITION FOR REHEARING. 29. Application for a rehearing of any cause shall be made by petition to the court, signed by counsel, filed with the clerk within sixty days from the rendition of judgment, stating con- cisely the cause for which the judgment is supposed to be erroneous. Any argument in support of the petition shall be by briefs only, presented separately from the petition. Eight copies of the brief shall be filed at the same time the petition is filed, and one copy of such brief shall be delivered at once by the clerk to each judge. When a rehearing is granted, the order granting it shall not have the effect to set aside the sub- mission of the cause, unless specially directed; but the record shall be returned to the files of the clerk's office, and the cause shall stand for hearing as a submitted cause, and it may be taken up and decided at once as a submitted cause, unless, upon leave granted upon special request, in writing, time is given. Granting a rehearing wholly sets aside and annuls the previous opinion of the court. Ewbank's Manual, § 246. The petition is a pleading and should merely allege that certain specified errors were committed by the court in deciding the appeal. Baltimore, etc., Ey. Co. v. Conoyer, 149 Ind. 524. Louisville, etc., Ey. Co. v. Carmon, 20 Ind. App. 471. ' Ewbank's Manual, § 243. Only points made in the original briefs can be made in the petition or briefs asking a rehearing. Eule 22, ante. Ewbank's Manual, § 242. POSSESSION AND REMOVAL OF RECORDS. 30. Parties will be entitled to the possession of the tran- script during the time limited for preparing and filing briefs upon the original hearing. Thereafter the transcript shall not Ivi RULES OF THE SUPREME COURT. be taken from the clerk's office by any party, without leave of court first obtained on written application. Possession of the transcript by any party, after the expiration of the time for filing his briefs, without leave of court first obtained, may be treated as a contempt of court. Since nothing is considered on petition for rehearing except points pre- sented by the original briefs, parties are not entitled to the transcript while preparing such a petition and briefs thereon. Ewbank's Manual, § 192. Disregard by appellant of an order to return the papers has been punished by affirming the judgment. Vice V. Jones, 4 Ind. App. 426. Ewbank's Manual, § 192. \ 31. After a case has been decided, neither the record nor the opinion shall be taken from the office of the clerk, except by a judge of the court or by the official reporter; and the clerk is required to enforce this rule. TRIAL DOCKETS AND DISTRIBUTION OF CASES. 32. At the expiration of the time for filing all briefs, the clerk will enter each case upon the general or advanced trial docket, in the order in which the causes were submitted. Upon the advanced trial docket the clerk shall enter all criminal causes and such civil causes as the court may order transferred from the general trial docket. Upon the general trial docket the clerk shall enter all civil causes. On written application of either party, civil causes which involve questions as to the constitutionality of any law, public revenue, public health, or the settlement of trusts, or which the court may deem of gen- eral public concern, may be transferred to the advanced trial docket. Causes upon the advanced trial docket shall be en- titled to precedence. All causes that stand for final hearing shall be determined in the order of their submission as nearly as may be done. Whenever a cause is put upon the trial docket, the RULES OF THE SUPREME COURT. Ivii clerk shall immediately distribute to each judge a complete set of the briefs therein. Appeals in capital cases take precedence over all others. R. S. 1894, § 1962. Ewbank'a Manual, § 196. SUPERSEDEAS. 33. An application for a supersedeas must be accompanied by a brief, referring to the transcript by page and line, and pointing out the errors relied on. Briefs upon applications for supersedeas will not be received as briefs upon the final hear- ing. Unless the appellant files a proper brief within sixty days after submission his appeal will be dismissed notwithstanding any discussion in the superse- deas brief of the errors assigned. See Oarriger v. Kennedy, 134 Ind. 107. Ewbank's Manual, § 189. CERTIORARI. 34. No application for a certiorari to correct the record in a submitted cause will be entertained, unless the opposite party or his attorney shall have had ten days' notice in writing of the intended application, but no notice shall be necessary where the certiorari is asked prior to the submission of the cause. The application for the certiorari shall be verified, and shall clearly designate the parts of the record asserted to be defective, improperly omitted, or improperly incorporated in the transcript. Affidavits may be filed in support of the appli- cation. The respective parties may file briefs, but oral argu- ment will not be heard. Proof of notice is made as in other motions. R. S. 1894, §489. Ewbank's Manual, §§ 159, 213. The application should contain explicit directions to the clerk of the trial court what papers and entries he is expected to certify in answer to the writ. Ewbank's Manual, § 212. Affidavits in opposition to such an application will not be considered. Citizens' Street Ry. Co. v. Heath, — Ind. — , Dec. 22, 1899. Ewbank's Manual, § 212. Iviii RULES OF THE SUPREME COURT. Where the notice is served less than ten days before the time named therein for presenting the application, the court will merely wait until the required ten days have expired and then pass on the application without requiring a new notice. Durbin v. Haines, 99 Ind. 463. Ewbank's Manual, § 213. A certiorari will not issue after final judgment in aid of a petition for rehear- ing nor will a rehearing be granted to enable a party to correct the record. State V. Halter, 149 Ind. 292. Miller v. Evansville, etc., E. Co., 143 Ind. 570. Ewbank's Manual, § 217. SECURITY FOR COSTS. 35. Whenever it shall be made to appear by the transcript or papers in the cause, or by affidavit filed at any time before the submission of the cause, that the appellant is a non-resident of the state, security for costs will be required. If the party or his attorney be not present in court, notice of the requirement shall be given by the clerk to the party or his attorney; and if the security shall not be given within the time limited by the court, the appeal will be dismissed. DISMISSAL OF CAUSES. 36. Where a cause appealed in vacation has been on the docket ninety days or more, and there is no appearance by the appellee, and no steps have been taken to bring him into court; or where a notice has been issued and proves ineffectual from any cause, and no steps are taken for more than ninety days after the issu- ance of such ineffectual notice to bring the appellee into court, the clerk shall enter an order dismissing the appeal. Failure to have notice served in time by reason of fraud, accident or mis- take without any fault or negligence of appellant, may be excused on proper application to the court. Smythe v. Boswell, 117 Ind. 365. Tate V. Hamhn, 149 Ind. 94. Ewbank's Manual, § 160. A defective attempt to take a term time appeal must be followed by notice or it will be dismissed under this rule. Michigan Mutual, etc., Co. v. Frankel, 151 Ind. 534. Ewbank's Mannar S 91 EULES OF THE SUPREME COURT. lix OPINIONS, WHEN TO BE CERTIFIED. 37. Opinions and judgments shall not be certified to the court below by the clerk of this court, except in criminal cases, until the expiration of sixty days, unless by order of this court, or on the filing of a waiver of a petition for rehearing, which order of court, or filing of waiver, shall be certified by the clerk with the opinion. Notwithstanding the judgment is affirmed a supersedeas continues in force until the order affirming it is certified down. Ewbank's Manual, § 239. The party who recovered judgment on appeal may petition for a rehearing or for a modification of the judgment notwithstanding the other party files a waiver. Pittsburgh, etc., Ey. Co. v. Mahoney, 148 Ind. 196. Ewbank's Manual, § 248. When a petition for rehearing is filed the opinion is usually not certified down until the petition is ruled on. Ewbank's Manual, § 248. SUPREME COURT REPORTER. 38. The opinions of this court shall not be delivered to the reporter until the expiration of sixty days from the determina- tion of the cause, unless certified as hereinbefore provided, and in cases where petitions for rehearing are filed, the opin- ions therein shall not be delivered to the reporter until such petitions are overruled. WITHDRAWAL OF PAPERS AFTER DISMISSAL. 39. When an appeal shall have been dismissed, the trans- cript of the record of 'the court below shall not be withdrawn from the files of this court to be used in another appeal or for any other purpose, without special leave of the court in term or of a judge thereof iii vacation, and only on good cause shown by affidavit. Ix RULES OF THE SUPREME COUKT. SUPREME COURT LIBRARY. 40. No book belonging to the law library shall be removed from the library room, except for the purpose of oral argu- ment, into the court or consultation room, and it shall be de- livered to the court or returned to the library at the conclusion of the argument. Any violation of this rule will be treated as a contempt of court. CHAPTER 1. INTEODUCTION WHAT IS AN APPEAL? § 1. In general. § 5. Amendments must be made by 2. Distinguished from a trial. the clerk. 3. Distinguished from an action to 6. Only questions of law may be review. reviewed. 4. Eecord imports absolute verity. §1. In general. — The term "appeal" has been variously defined, and, as used at different times, has different mean- ings. But in the sense in which it is used when we speak of an appeal to the supreme or appellate court of Indi- ana, it means the removal of a suit in equity or of an action at law from an inferior court to a superior court,' for the pur- pose of reviewing a judicial determination of the inferior court. Such a removal presupposes the possession of juris- diction by the court to which the appeal is taken to review and reverse, correct, or affirm the decisions of the courts from which causes are removed to it.^ It is important to remember in this connection that causes are appealed in the sense above stated, solely for the purpose of reviewing what has already been done and not for the purpose of deciding the questions originally in controversy. § 2. Distinguished from a trial. — An appeal differs in many essential particulars from a trial. A trial may be defined gen- erally as a judicial investigation of the truth of certain matters affirmed by one party and denied by the other. In conduct- ing this investigation, information is sought from various •Leach v. Blakely, 34 Vt. 134, 136; (U. S. C. 0.) 5, 13; Elliott's App. United States v. Wonson, 1 Gallison Proc, §15. 2 2 Story Const., § 1761. (1) 2 APPELLATE PRACTICE. § 3 sources. In the pleadings^ filed, the facts relied on by each party are stated in general terms and the allegations of the pleadings, are supported by evidence which may not be dis- closed until it is presented at the trial. The fullest oppor- tunity is given to each party to establish the truth of his allegations, and there are few kinds of evidence, either spoken or written, that will be rejected. But the pleadings in an ap- peal are usually confined to allegations that the trial court did or did not commit an error, and the only source of information on that subject is the record. No issue can be formed as to the merits of an appeal except the issue whether there is or is not manifest error in the record. Where other matters are pleaded, they usually relate to the collateral issue whether or not the appellant is entitled to have the merits of his appeal considered by the court. Objections to the judgment must, as a rule, be based on objections to some action taken by the trial court. An appellant cannot raise any questions in an appellate court, or there urge any grounds of objection or ex- ception, which were not presented to the trial court, in the proper manner,' except objections to the jurisdiction of the court over the subject-matter of the action,' or that the judg- ment is wholly void for some other reason,' and the objection that the complaint does not state facts sufficient to constitute a cause of action.* § 3. Distinguished from an action to review. — It is impor- tant to remember that the review of a judgment for matters- iSiberry v. State, 149 Ind. 684; Slevin, 43 Ind. 522; Eiley v. Butler,. Lewis V. State, 142 Ind. 30; Johnson 36 Ind. 51. V. Eberhart, 140 Ind. 210 ; Fletcher v. ' Section 38, post. Waring, 137 Ind. 159; Crawford v. * Bedford, etc., R. Co. v. Brown, Anderson, 129 Ind. 117, 119; Mobley 142 Ind. 659; Pennsylvania Co. v. V. State, 83 Ind. 92, 93; Thompson v. Congdon, 134 Ind. 226; Metropolitan,. Boden, 81 Ind. 176, 179; City of etc., Co. v. McCormick, 19 Ind. App. Huntington v. Breen, 77 Ind. 29, 36; 49; Western, etc., Co. v. Koontz, 17 Cross V. Haisley, 2 Ind. App. 23, 24. Ind. App. 54; E. S. 1894, §346; Town 'Grimes v. Grimes, 141 Ind. 480 ; of Brazil v. Kress, 55 Ind. 14 ; Ford McCoy V. Able, 131 Ind. 417; Huber v. Booker, 53 Ind. 395; McClure v.. V. Beck, 6 Ind. App. 47; Debs v. Dal- McClure, 19 Ind. 185. OA . TIT-/"! -1 J .. § 4 INTRODUCTION WHAT IS AN APPEAL? 3 which were not presented to the trial court can only be had in that court and can not be secured by an appeal. A complaint to review a judgment has many of the characteristics of an ap- peal, and if the judgment is attacked solely for error of law shown by the record, many of the rules governing appeals apply to such an action. But a judgment may be reviewed by the trial court for material new matter discovered since its rendi- tion,' or for fraud in procuring it ;' and in a proceeding to review a judgment for either of these causes pleadings may be filed and evidence introduced as in an original action. But in an appeal, while some collateral matters, such as the fact that the plaintiff's right to maintain an appeal has been waived or abandoned,' may be successfully pleaded for the purpose of upholding the judgment, it can not be success- fully attacked for any reasons not apparent on the face of the record as copied into the transcript and certified to by the clerk.' § 4. Record imports absolute verity. — The record as em- bodied in a properly prepared, duly authenticated t/ranscript, imports absolute verity.' No extrinsic evidence,' whether in the form of affidavits,' or of the original papers in the case," or of a mere statement by the clerk of the trial court,' will be re- ' Osgood V. Smock, 144 Ind. 387 ; ville, 100 Ind. 309 ; Walls v. Ander- E. S. 1894, § 628. son, etc., R. Co., 60 Ind. 56. ^Nealis V. Dicks, 72 Ind. 374. «Wishmier v. State, 110 Ind. 523, ' Williams v. Eicliards, 152 Ind. 528 ; 526 ; Du Souchet v. Butcher, 113 Ind. section 112, post. 249 ; Justice v. Justice, 115 Ind. 201 ; « Head v. Doehleman, 148 Ind. 145 ; Evans v. Schafer, 88 Ind. 92. Campbell v. State, 148 Ind. 527 ; Ay- ' City of Bloomington v. Phelps, 149 delott V. Collings, 144 Ind. 602; Cen- Ind. 596; Smith v. Goetz,20Ind. App. ter School Township v. State, ex rel., 14^; Lake Erie, etc., R. Co. v. Mugg, 20 Ind. App. 312; Crawlord v. An- 132 Ind. 168; Justice v. Justice, 115 derson, 129 Ind. 117; Martin v. Mar- Ind. 201; Evans v. Schafer, 88 Ind. tin, 74 Ind. 207; McCormick v. Ear- 92. hart, 72 Ind. 24; Hudson v. Dens- * Leach v. Mattix, 149 Ind. 146; Holt more, 68 Ind. 391. v. Eockhill, 143 Ind. 530; Lake Erie, 5 Davis V. Union Trust Co., l.'iO Ind. etc., R. Co. v. Mugg, 132 Ind. 168; 46 ; Dudley v. Pigg, 149 Ind. 363, 369 ; Du Souchet v. Dutcher, 113 Ind. 249, Justice V. Justice, 115 Ind. 201; Du 255. Souchet V. Dutcher, 113 Ind. 249, 'Figart v. Halderman, 59 Ind. 424. 255; Thames Loan, etc., Co. v. Be- 4 APPELLATE PRACTICE. § 5 ceived to aid, vary or contradict the record as certified by the clerk. It follows that a plea to the merits of the appeal, which must be supported, if at all, by extrinsic evidence, will be stricken out or disregarded.' § 5. Amendments must be made by the clerk. — If the tran- script is erroneous, the only remedy is to make a proper appli- cation to the court to have the same corrected.^ The corrected portion of the transcript, as certified by the clerk under the seal of the trial court, will take the place of that part of the first transcript, and will, in turn, "import absolute verity." If the error was in making up the record of the court below, such record should first be corrected by proceedings in that court, and then a transcript of the record secured.' It is incumbent on the appellant to present a correct record which affirmatively shows that an error prejudicial to his rights was committed by the trial court, and an affirmance of the judg- ment will certainly follow his failure to do so,* since every presumption is indulged in favor of the action of the trial court. ' As stated elsewhere, it is a neglect of duty on the part of appellant's attorney to file a transcript which is erroneous.' And if he does so, he can not, except by way of asking for a writ of certiorari, complain of the fact that it does not present the questions relied on to procure a reversal of the judgment. § 6. Only questions of law may be reviewed. — The statute provides that "no pleadings shall be required in the supreme ' Lewis V. Prenatt, 24 Ind. 98. 25 Ind. 232; Wayne Co. Tp. v. Berry, ' See chapter 17. 5 Ind. 286. ' See section 214, posJ. ^ Close v. Pittsburgh, etc., R. Co., 'Head v. Doehleman, 148 Ind. 145; 150 Ind. 560; Campbell v. State, 148 Baldwin V. Sutton, 148 Ind. 591 ; Mc- Ind. 527; Deweese v. Hutton, 144 Clutchenv. McClutchen, 141 Ind. 697; Ind. 114; Ferguson v. Hull, 186 Ind. Center School Township v. State, 339 ; Morningstar v. Musser, 129 Ind. ex rel., 20 Ind. App. 312; Morning- 470; Stevens v. Stevens, 127 Ind. 560, star, V. Musser, 129 Ind. 470; Rogers 565; Rapp v. Kester, 125 Ind. 79, 82; V. Leyden, 127 Ind. 50, 55; Shugart v. McClure v. State, 116 Ind. 169; Ker- Miles, 125 Ind. 445, 450; Perkins v. nodi e v. Gibson, 114 Ind. 451; Bowen Hayward, 124 Ind. 445 ; Cline V. Lind- v. Pollard, 71 Ind. 177; Davis v. Bey, 110 Ind. 337; Harter v. Eltzroth, Perry, 41 Ind. 305. § 6 INTRODUCTION WHAT IS AN APPEAL? 5 court upon an appeal, but a specific assignment of all errors relied upon, to be entered on the transcript in matters of law only.'" Under this provision, it has been repeatedly declared by the supreme court that errors can not be assigned of mat- ters of fact/ There is a statute providing that errors may be as- signed "upon matters of fact and law" in an appeal from the judgment in a will contest,' but the supreme court has held that so much of that statute as authorizes the presentation of ques- tions of fact for decision on appeal has been repealed.* It must not be understood that the facts of a case will not receive consideration by the supreme court. But that court will as- sume as correct the facts established by the finding of the court or verdict of the jury as shown by the record, or if the evi- dence is wholly uncontradicted, the facts established by such evidence, and will merely consider and determine the question whether the trial court correctly applied the law to such facts. It will never set aside a decision of the court or jury on the ground that the weight of the evidence is opposed to it.'' ' E. S. 1894, § 667. ' Coffman v. Beeves, 62 Ind. 334, 345. ^Kimballv. Sloss,7Ind. 589; Eiley SLillard v. State, 151 Ind. 322; V. Murray, 8 Ind. 354; Coffman v. Moore v. HinWe, 151 Ind. 343; Lane Eeeves, 62 Ind. 334, 345. See Eckert v. State, 151 Ind. 511. The authori- V. Binkley, 134 Ind. 614. ties on this point are too numerous to ' E. S. 1894, § 667. ' justify extended citation. CHAPTER 2. STEPS IN AN APPEAL. §7. Reservation of exception be- § 15. Giving notice, low. 16. Supersedeas. 8. Rendition and proper entry of 17. Submission. judgment or order from which 18. Motion to dismiss. an appeal will lie. 19. Appearance of appellee. 9. Filing appeal bond is necessary. 20. Assignment of cross-errors. 10. Precipe for transcript. 21. Briefs and arguments. 11. Correction of transcript. 22. Correction by certiorari. 12. Making marginal notes. 23. Petition for rehearing or modifi- 13. Assignment of errors. cation. 14. Filing transcript. § 7. Reservation of exception below. — Though most ejtcep- tions are reserved at or before the trial of the case in the lower court, reserving an exception may properly be classed' as a step in taking an appeal. For it is a general rule, subject, how- ever, to some exceptions, that no questions will be considered on appeal unless they were properly presented to the trial court,' and an objection duly made and an exception saved to its ruling thereon.^ The objection must be specific, point- ing out the alleged mistake and asking that it be corrected.' The taking of an exception implies something more than offering an objection to the action of the court or protesting against a ruling made by it.* In law, the term "excep- tion" has a technical signification, and implies that the per- ' Moore v. Harland, 107 Ind. 474; ^Falley v. Gribling, 128 Ind. 110, Becknell v. Becknell, 110 Ind. 42,. 54; 117; Chicago, etc., R. Co. v. McBeth, New Albany, etc., R. Co. v. Day, 117 149 Ind. 78; Winstandley v. Brey Ind. 337; Klinger v. Smith, 131 Ind. fogle, 148 Ind. 618. 524; State v. Friedley, 151 Ind. 404; « Tucker v. Hyatt, 151 Ind. 332, 338, Hedrick v. Whitehorn, 145 Ind. 642; and cases cited. Butler v. Thornburgh, 141 Ind. 152. « Robinson v. S'tate, 152 Ind. 304. (6) § 8 ■ STEPS IN AN APPEAL. 7 son excepting reserves the right to present an adverse ruling to a court having authority to review the proceedings for the correction of errors.' The statute requires that an exception shall be taken at the time the decision objected to is made, both in civiP and in criminal cases," and the record must show the fact that an exception was so reserved or the ruling can not be successfully attacked on appeal, however erroneous it may be.' The manner of reserving and presenting exceptions will be dis- cussed in the next chapter. ° The objections which may be made available on appeal, although they were not presented to the trial court, are objections to the jurisdiction of the trial court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.^ § 8. Rendition and proper entry of judgment or order from which an appeal will lie. — It is essential that the record shall . show that a judgment or order from which an appeal will lie has been made by the trial court.' Unless such a judgmeni; or order is shown, the appeal will be dismissed without con- sideration.' The judgment need only be such as assumes to make a final disposition of the case; it is settled that an ap- 'Eobinson v. State, 152 Ind. 304. McClure v. McClure, 19 Ind. 185; «R. S. 1894, §638. Bedford, etc., E. Co. v. Brown, 142 s B. S. 1894, § 1916. Ind. 659 : Pennsylvania Co. v. Cong- *Port Huron, etc., Co. v. Smith, 21 don, 134 Ind. 226; Metropolitan, etc., Ind. App. 233; State v. Friedley, Ins. Co. v. McCormick, 19 Ind. App. 151 Ind. 404; Hedrick v. White- 49; Western, etc., Co. v. Koontz, 17 horn, 145 Ind. 642 ; Johnson v. Eber- Ind. App. 54. hart, 140 Ind. 210; Butler v. Thorn- 'State v. Herod, —Ind. App. — , burgh, 141 Ind. 152 ; Chicago, etc., E. 51 N. E. Eep. 952; Foster v. Lind- Co. V. McBeth, 149 Ind. 78; Fletcher ley, 20 Ind. App. 155; Hasten v. In- V. Waring, 137 Ind. 159 ;- Lime City, diana Car, etc., Co., 19 Ind. App. etc., Assn. v. Black, 136 Ind. 544; 633, and authorities, cited; Home Leverich V. State, 105 Ind. 277; State Electric, etc., Co. v. Globe, etc., Co., V. Smith, 8 Ind. 485. 145 Ind. 174; Thomas v. Chicago, etc., * See chapter 3. E. Co., 139 Ind. 462 ; Needham v. Gil- «E. S. 1894, §346; Eiley v. Butler, laspy, 49 Ind. 245. 36 Ind. 51; McGoldrick v. Slevin, 43 *Home Electric, etc., Co. v. Globe, Ind. 522; Town of Brazil v. Kress, 55 etc., Co., 145 Ind. 174; Foster v. Lind- Ind. 14; Ford v. Booker, 53 Ind. 395; ley, 20 Ind. App. 155. 8 APPELLATE PRACTICE. § 9 peal may be prosecuted from a judgment that is entirely void.' Perhaps a party desiring to appeal from a judgment ought not to move that judgment be rendered against him, for such a re- quest might bring him within the rule that a party can not complain of an error which he invited the court to commit.'' But after the court has determined the controversy against a party, by Ruling on a demurrer or motion or otherwise, such party may properly move that a final judgment shall be pro- nounced; and it is said may even compel the entry and sign- ing of judgment by mandamus, in case the court refuses to proceed.' A mere suggestion to the court in case of a failure to enter a final judgment of record after the controversy has been determined will usually sufiice. But the transcript should be carefully examined before filing, and a failure by the clerk to copy into it the judgment or order appealed from should be called to his attention and the omission supplied.* Such an omission may, however, be supplied by procuring a writ of certiorari to correct the transcript after it is filed,* in case a proper judgment or order appears in the records of the trial court. § 9. Piling appeal bond is necessary. — Filing an appeal bond is an essential preliminary step in taking some kinds of appeals, and is the only means by which a stay of execution can be secured pending appeals of several other kinds. The only appeals in which an appeal bond is indispensable are ap- peals from decisions in favor of decedents' estates in matters growing out of the settlement thereof,* and appeals from inter- locutory orders of certain kinds.' Executors, administrators 'Loweryv. State Life Ins. Co., — Ind. ' See section 264:, post, but seeState — ,54N. E. Eep.442; section 289, posi. v. Biddle, 36 Ind. 138. ' McMahan v. McMahan, 142 Ind. * See section 117, post. 110; Indianapolis, etc., R. Co. v. ' See chapter 17. Sands, 133 Ind. 433; Weander v. «R. S. 1894, §2609; Einehart v. Johnson (Neb.), 60 N. W. Rep. 353; Vail, 103 Ind. 159; Simons v. Simons, Perkins v. Hayward, 124 Ind. 445, 129 Ind. 248. But see section 169, j^ost. 449; Ellison v. Rerick, 125 Ind. 396; 'R. S. 1894, §§658, 659. Elliott's App. Proc, § 626 to 630; sec- tion 255, post. § 9 STEPS IN AN APPEAL. 9 and guardians are excused from the necessity of filing appeal bonds, either for the purpose of obtaining an appeal or to se- cure a stay of proceedings/ in all cases where the appeal is prosecuted on behalf of the trust estate/ Filing an appeal bond is an essential step in perfecting a term appeal/ but in case of a failure to file such bond within the time allowed, the appeal may still be perfected as a vacation appeal/ It is also necessary to file a bond in an appeal from an order appointing a receiver, if the appellant would control his own property pending the appeal/ but the appeal may be prosecuted with- out a bond, if such control is surrendered. And where a stay of execution for the collection of the judgment or costs is de- sired, a bond must be filed, both in civil* and in criminal cases.' An ordinary vacation appeal,' or an appeal to present a reversed question of law' in a civil case, or an appeal by the state,'" or by the defendant," in a criminal case, may be taken without filing an appeal bond; but an appeal so taken will not stay the execution of the judgment or sentence. Where the filing of an appeal bond is required as a preliminary step in perfecting an appeal, the bond must be filed within the time limited by the statute,'^ or prescribed by an order of court," with such penalty and sureties as the court will approve." 'E. S. 1894, §§ 657, 2612. «R. S. 1894, § 653. 2 If the appeal is taken by the ad- 'E. S. 1894, § 1961 ; Everly v. State, ministrator as an adversary party, 10 Ind. App. 15. See Butler v. State, from an order directing him to do 97 Ind. 373, and Parker v. State, 135 something for the benefit of the es- Ind. 534 ; chapter 14, post. tate, an appeal bond is necessary. *Euschaupt v. Carpenter, 63 Ind. Case V. Nelson, — Ind. App. — , 52 N. 859 ; Holloran v. Midland E. Co., 129 E. Eep. 176. Ind. 274; McKinney v. Hartman, 8 E. S. 1894, § 650 ; Holloran V. Mid- 143 Ind. 224; Elliott's App. Proc, land R. Co., 129 Ind. 274; Ex parte § 250. Sweeney, 131 Ind. 81 ; Wilson v. Ben- » E. S. 1894, §§ 642, 643. nett, 132 Ind. 210 ; McKinney v. " E. S. 1894, §§ 1957, 1960. Hartman, 143 Ind. 224; Michigan, "E. S. 1894, §§ 1959, 1960, 1961. etc., Co. V. Frankel, 151 Ind. 534, " See E. S. 1894, § 1245 ; Acts 1899, 537; Elliott's App. Proc, § 248. p. 397, amending § 2610, E. S. 1894. «E. S. 1894, § 651; McKinney v. "E. S. 1894, §§ 650, 659. Hartman, 143 Ind. 224, 227. "Michigan Mut. L. Ins. Co. v. 5E. S. 1894, § 1245. Frankel, 151 Ind. 534. 10 APPELLATE PRACTICE. § 10 § 10. Precipe for transcript. — After a cause has been pre- pared for an appeal, by reserving proper exceptions to the rul- ings which are believed to be erroneous, and causing the rec- ord to properly state the action of the court and exceptions reserved, and a judgment or decision has been rendered from which the appeal is taken, the next step is to procure a writ- ten transcript of the record for presentation to the appellate tribunal. There are very few appeals in which a consideration of the whole record is necessary to the determination of the question whether the alleged errors relied on to procure a rever- sal were committed by the trial court and prejudiced appel- lant's substantial rights. Accordingly, a party desiring to appeal is given the right to direct, in writing, what parts of the record shall be copied into the transcript.' The written direction so given is required to be appended to the transcript when it is completed,'' and will control the court in determin- ing what is in the record and what is not.' A general order for a transcript will be considered as an order for a complete copy of the entire record.* But the appellant is liable for the costs occasioned by including any matters in the transcript not necessary to a determination of the appeal. ° The appel- lant must, at his peril, see that the clerk is directed to furnish the portions of the record that will present his case, and that such direction is obeyed.* The form of a precipe, and sug- gestions as to what it should contain, are given in another chapter.' § 11. Correction of transcript. — After the transcript is com- pleted it should be neatly and securely bound.' It is then the imperative duty of the appellant's attorney to go through . it carefully, page by page, and see that it is correct. He should read it in connection with the original entries and papers in the case,' and if any of the original papers are missing from th'e files, or any rulings of the court are er- 1 E. S. 1894, § 661. ^ E. S. 1894, § 622. ' E. S. 1894, § 661. » Allen v. Gavin, 130 Ind. 190; sec- ' Allen V. Gavin, 130 Ind. 190. tion 122, post. * Eeid V. Houston, 49 Ind. 181 ; ' Section 115, post. Barnes v. Pelham, 18 Ind. App. 166; ; 'Eule 3 Sup. Ct. § 12 STEPS IN AN APPEAL. 31 roneously entered, steps should be taken at once to supply the one and correct the other.' The transcript should then be made to correspond exactly with the record as corrected. The party should not make any corrections himself, but should note all errors and have the corrections made by the clerk.' A fail- ure to correct the transcript before filing it may not prove fatal to the appeal, as a writ of certiorari may be avail- able to procure a correction in case the defect is afterward discovered before the appeal is decided;' but an applica- tion for such a writ will increase the cost of appealing, and if the defects should not be discovered until after a decision based on the defective transcript has been rendered, a correction will not afterward be permitted.* § 12. Making marginal notes. — The rules of court require that the pages and lines of the transcript shall be numbered and marginal notes made on each page indicating what is copied thereon and an index to the record supplied. ° This ought to be done before the transcript is filed, though it is not always required until the cause has been briefed and is ready for consideration and decision by the judges. But the appellee has a right to the assistance of marginal notes and an index in his consideration of the assignment of errors and appellant's brief and in the preparation of his own brief, and a motion to dismiss the appeal for lack of such notes will be entertained at any time after the cause is submitted. ° Since a rule of court' requires references to be made to the pages and lines of the transcript where each part of the record mentioned in the briefs of counsel may be found, it will be most conven- ient to number the pages and lines and make the marginal notes before taking any other steps in the appeal. This is a duty which must not be neglected, as the failure of appellant 'Section 117, j30s<. = Rule 3 Sup. Ct. ; section 119, post. ^Montgomery v.Gorrell,49Ind. 230. "See Smith v. State, 137 Ind. 198; ' See chapter 17, posf. Egan v. Ohio, etc., R. Co., 138 Ind. « Drake v. State, 145 Ind. 210, 218, 274. and authorities cited; Elliott's App. ' Rule 22 Sup. Ct. ; Siberry v. State, Proc, § 208; section 217, post. 149 Ind. 684. 12 APPELLATE PRACTICE. § 13 to prepare his transcript in accordance with this rule of court has repeatedly been punished by a dismissal of his appeal.' § 13. Assignment of errors. — No pleadings are required in the supreme or appellate court on an appeal, except a specific assignment of the errors relied on.^ An assignment of errors is required in criminal cases the same as in civil cases. ^ This assignment is the appellant's complaint in the appellate tri- bunal,* and its preparation and filing are essential steps in completing an appeal.' The assignment of errors must be written on the transcript,^ or on a paper so attached to the transcript as to become part of it,' or the appeal will be dis- missed.' It is required to contain the title of the cause,' and the full names of all the parties," and must be signed by the appellant or his attorney." The assignment of errors should be prepared and filed with the transcript, as the appellate tribunal can not have complete jurisdiction of the appeal until this is done.'^ Besides, the rules of court make the assignment of errors appellant's precipe for notice where notice iS issued above," which furnishes another reason for filing it at the same time as the transcript. It is not abso- lutely essential, however, that it shall be filed at that time, provided it is filed before the time for taking an appeal ex- ' Egan V. Ohio, etc., E. Co., 138 Ind. liott's App. Proc, § 303. See chapter 274; Smith v. State, 137 Ind. 198; 11, post. Babcock v. Johnson, — Ind. App. — ; ^ R. S. 1894, § 667 ; Moore v. Ham- Otis V. Weiss, — Ind. App. — . See mons, 119 Ind. 510. Elliott's App. Proc, § 204 ; section 119, ' Rule 4 Sup. Ct. post. ' Hays v. Johns, 42 Ind. 505 ; section ' R. S. 1894, § 667. 125, post. ' May V. State, 140 Ind. 88 ; Burst v. ' Rule 4 Sup. Ct. State, 88 Ind. 341; Harvey v. State, '"Rule 6 Sup. Ct.; Gourley v. Em- 80 Ind. 142; Sturm v. State, 74 Ind. bree, 137 Ind. 82; City of South Bend 278,283; State v. Ross, 4 Ind. App. v. Thompson, 19 Ind. App. 19 ; section 480 ; section 141, post. 126, post. « Hawkins v. McDougal, 126 Ind. " State v. Delano, 34 Ind. 52. See 544; Hollingsworth v. State, 8 Ind. Levi v. Bray, 12 Ind. App. 9, 11; 257; Hutts v. Hutts, 62 Ind. 214; El- chapter 11, post. liott's App. Proc, § 300. " Elliott's App. Proc, § 303. = Lawrence V. Wood, 122 Ind. 452; ''Rule 6, Sup. Ct.; Henderson v. Bacon v. Withrow, 110 Ind. 94; El- Halliday, 10 Ind. 24. § 14 STEPS IN AN APPEAL. 13 pires,* and before the appeal has been dismissed for failure to complete it. § 14. Piling transcript. — When the transcript has been cor- rected, the pages and lines numbered, marginal notes made, an index provided, and errors properly assigned, the transcript is ready for filing. Whether notice shall be given before or after the transcript is filed will depend on circumstances.^ Filing the transcript consists simply in depositing it in the office of the clerk of the supreme court with a request that it be filed and docketed. The same clerk serves both the supreme and appel- late courts, and transcripts are filed in both courts in the same way. The transcript may be carried to the clerk's office, and a verbal request made that it be filed, or it may be sent by ex- press, accompanied by written directions as to what shall be done with it. The title of the assignment of errors will be taken as. a direction which court the appeal shall be filed in, and to whom notice shall be given, if notice is ordered. The time allowed for filing the transcript is limited by statute to one year from the time judgment is rendered in vacation ap- peals of civil cases,' and in cases where a question of law has been reserved;' one year and ninety days is allowed in criminal cases,' provided an appeal has been properly taken by service of notice within a year.* An appeal from judgments and decisions in matters con- nected with a decedent's estate must be perfected by filing the transcript within one hundred days,' a proper bond having previously been filed within ten days.' But the appellate tri- bunal, for good cause shown, may extend the time for filing the bond to any time not longer than a year,' when the appel- ' Lawrence V. Wood, 122 Ind. 452; «Lichtenfels v. State, 53 Ind. 161; Bacon v. Withrow, 110 Ind. 94; Hoi- Farrell v. State, 85 Ind. 221. See EI- . lingsworth v. State, 8 Ind. 257 ; El- liott's App. Proc, §§ 284, 285, 286. liott's App. Proc, § 303. ' Acts 1899, page 397, amending 2 See next section; see chapter 12, § 2610, R. S. 1894; Simons v. Simons, post. 129 Ind. 248 ; section 104, post. 8E. S. 1894, § 645. 'Acts 1899, p. 397, amending § 2610 « R. S. 1894, § 643. ' E. S. 1894. 5 R. S. 1894, § 1958. 14 APPELLATE PRACTICE. § 15 lant will have ninety days longer within which to file the tran- script,' provided such time does not extend beyond the period of one year from the date of judgment.^ Only ten days are allowed for perfecting an appeal from an order, appointing or refusing to appoint a receiver/ and this includes filing the transcript in the supreme court.* The transcript of a term ap- peal must be filed within sixty days after the appeal bond is filed/ which bond must be filed within such time as the court shall direct/ usually thirty or sixty days after judgment is rendered. But the transcript should be filed within thirty days- after the bond is filed in appeals from any of the inter- locutory orders enumerated in the general statute on that subject,' both when such appeals are perfected as term appeals," and also when they are taken in vacation.' § 15. Giving notice. — Noti<;e to the parties to be affected by the judgment on appeal is necessary to confer jurisdiction on the appellate tribunal," except where the appeal is a mere con- tinuation of the proceedings below, as in term appeals." Giv- ing notice, therefore, may properly be classed as one of the es- sential steps in taking an appeal. If all the judgment defend- ants join in appealing from the judgment, notice to the adverse party alone is necessary;" but, if part oi several co-parties ap- peal, as they are authorized to do by the statute," those who do not join must be named as co-appellants," and served as such with notice of the appeal, '° except in term appeals as above 'Acts 1899, p. 397, amending § 2610, loran v. Midland E. Co., 129 Ind. 274; R. S. 1894. Elliott's App. Proc, § 144. ' Section 104, jposJ. " E. S. 1894, §650; Burns' Supp. 3 E. S. 1894, § 1245. 1897, §§ 647a, 647ft ; section 152, post; * Vance v. Schayer, 76 Ind. 194; Cpnaway v. Ascherman, 94 Ind. 187; Hursh V. Hursh, 99Ind. 500; section Elliott's App. Proc, § 525. 103, post. " E. S. 1894, § 652. = E. S. 1894, § 650. " E. S. 1894, § 647. 6 E. S. 1894, § 650; section 102,post. " Gregory v. Smith, 139 Ind. 48, 52; 'E. S. 1894, §658. Lee v. Mozingo, 143 Ind. 667, 671; 8 E. S. 1894, § 659. Crist v. Wayne, etc., Assn., 151 Ind. ^ Section 105, post. 245; Abshire v. Williamson, 149 Ind. "Michigan Mutual, etc., Co. v. 248,252. Frankel,151Ind.534,537; McKinney 1= Gregory y. Smith, 139 Ind. 48, 52; V Wartman 143 TnH 994 998- TTnl- T.Re V Mn7.inoT)_ 1 43 Tnd . 667. 670. See § 15 STEPS IN AN APPEAL. 15 stated,' or where they waive notice by voluntarily appearing and joining, or declining to join in the appeal.^ All adverse parties to the judgment must be served with notice' in every case except where they waive notice.* Several ways of serving notice are provided by statute for use in different appeals. In a civil appeal, notice may be served on the opposite party or his attorney, and also on the clerk of the trial court, as a preliminary step before filing the transcript;' or the clerk of the supreme court may be directed to issue notice at the time the transcript is filed,* when notice will be issued to the appellees named in the assignment of errors,' and served by the sheriff.' If the notice is issued from the supreme court, it must be served on the appellees in per- son,' as the act of 1897" purporting to amend the practice act so as to authorize service on the appellee's attorney of notices issued from above has been held unconstitutional." Of course the appellees may waive notice by voluntarily appearing, or by taking any steps to contest the merits of the appeal.'^ In a criminal case, if the state appeals, notice must be served on the clerk of the court which rendered the judgment, and on the defendant or his attorney;, or, if neither can be found, a notice may be posted for three weeks in the clerk's ofiice;" if the defendant appeals, notice must be served on the prosecuting attorney." Such notice may be waived either expressly or by entering an appearance to the appeal." chapter 12, post ; see Acts 1899, page Pate, 93 Ind. 423 ; section 134, post. 5, as to manner of serving notice on *R. S. 1894, § 652. co-parties. ' Rule 6 Sup. Ct. ' Burns' Supp. 1897, §§647a, 6476. « R. S. 1894, §§ 7801, 7802; sections. ' Acts 1899, page 5, amending §647, 155, 157, post. R. S. 1894 ; Forsythe v. City, 142 Ind. « Q'Mara v.Wabash R. Co., 150 Ind. 505 ; Pritchett v. McGaughey, 151 Ind. 648. 638; see chapter 11, post. "Burns' Supp. 1897, §652. 3R. S. 1894, §652; Holloran v. Mid- " O'Mara v.Wabash R. Co.,150Ind.. land R. Co., 129 Ind. 274; Garside v. 648; section 157, post. "Wolf, 135 Ind. 42; Hiinderlock v. "Section 163, post. Dundee, Mortgage, etc., Co., 88 Ind. " R. S. 1894, § 1960. 139. ~ "R. S. 1894, § 1960. ' Section 163, post. ^ R. S. 1894, § 1960. 6R. S. 1894, §652; Richardson v. 16 APPELLATE PRACTICE. § 16 .Whenever it shall appear to the supreme court by satis- factory proof that the appellee in a civil cause appealed after the close of the term is not a resident of this state, and that a notice of the appeal can not be served upon his attorney of record in the court below, the court may order notice to such appellee to be given by publication.' But publication will not be ordered unless the appellee is not only a non-resident of the state, but also has no resident attorney on whom notice can be served.'' Notice by publication to co-parties of the appellant may be ordered by the supreme or appellate court upon proof that they are not residents of the state and have no resident attorneys of record in the court below on whom notice can be served within the state.' The required proof is usually made by affidavits filed with the clerk at the time an order for notice by publication is applied for. § 16. Supersedeas. — If the appellant desires to avoid the issuing of an execution while a vacation appeal is pending, he should apply to the court to which the appeal is taken,* or to some judge thereof, for an order staying execution on the judg- ment appealed from until the appeal is determined. ° Such an order is called a supersedeas. It will not issue in a civil case until after the filing of an assignment of errors,* and of a bond payable to the appellee, with such penalty and condition as would be required in a term appeal,' though it may issue be- fore the briefs on the merits and abstracts of the record are filed. Until the bond is actually filed, the supersedeas is without effect, in case one should be issued.' A supersedeas may be issued by a single judge of the court,' and when so issued will be effective until set aside for cause, upon a hear- ing, after notice to the parties." It should be remembered that the only effect of filing a bond and obtaining a supersedeas is to 1 E. S. 1894, § 663 ; section 162, post. « Henderson v. Halliday, 10 Ind. 24. «Tate V. Hamlin, 149 Ind. 94, 106; 'R. S. 1894, §653. Shaefer v. Nelson, 17 Ind. App. 489 ; » Mitchell v. Gregory, 94 Ind. 363. Dougherty v. Brown, 21 Ind. App. 115. ' R. S. 1894, § 653. ' Acts 1899, page 5. "Northern, etc., R. Co. v Michigan, « R. S. 1894, §§ 643, 1349. etc., R. Co., 2 Ind. 670. 5R. S. 1894, §654; chapter 14, iJosJ. § 17 ' STEPS IN AN APPEAL. 17 suspend the right to issue execution to enforce the judgment.' So far as the judgment executes itself,^ or may become the basis for another action/ it remains in full force and effect until it is reversed or set aside.* An order staying execution of the sen- tence of death in a capital case may sometimes be obtained/ but a sentence of imprisonment is not stayed pending an appeal." § 17. Submission. — Causes are usually deemed submitted as of course at the expiration of thirty days from the time that proper notice was perfected,' provided proof of service has been duly made; or if notice is waived, or the appeal is per- fected as a term appeal, the cause is submitted at the expira- tion of thirty days from the time the transcript is filed.' But a cause may be submitted immediately, upon a written agree- ment for submission being filed with the clerk of the supreme court or indorsed on the transcript.' And term appeals may be submitted on Tuesday of the first week of each term of the supreme court, or on any subsequent day of the term, if the coui't deems it proper to submit them." Submission consists of an entry made by the clerk in the order book to the effect that the cause was submitted at a certain time. Until this entry is made, the merits of the appeal are not before the court for consideration. .And it is from the date of submission that the time for filing briefs and for taking all subsequent steps in the appeal is counted. 1 Burton v. Burton, 28 Ind. 342; Padgett v. State, 93 Ind. 396; Meyer Walker v. Heller, 73 Ind. 46, 51; v. State, 125 Ind. 335, 338; Walker v. State V. Krug, 94 Ind. 366, 371; Line Heller, 73 Ind. 46, 51; Waring V. V. State, 131 Ind. 468 ; Meyer v. State, Fletcher, 152 Ind._ 620. 125 Ind. 335, 338; section 177, post. = Section 169, post. ' 2 Walls V. Palmer, 64 Ind. 493, 496; « E. S. 1894, § 1961. Eandles v. Bandies, 67 Ind. 434, 439; ' R. S. 1894, § 664. Padgett V. State, 93 Ind. 396; Meyer «R. S. 1894, §664. V. State, 125 Ind. 335, 338. ' Rule 17 Sup. Ct. ; section 118, post. 3 Randies v. Randies, 67 Ind. 434, "Rule 16 Sup. Ct. 439; Carver v. Carver, 115 Ind. 539; Line v. State, 131 Ind. 468. 'State V. Krug, 94 Ind. 366, 371; 2 — App. Practice. 18 APPELLATE PRACTICE. § 18 § 18. Motion to dismiss. — After receiving notice of an ap- peal, the first question for the appellee's attorney to determine is whether to meet it on the merits or to ask that the court shall dismiss it without consideration. If the time for taking a second appeal has expired, a dismissal of the appeal may give the appellee all the advantages that he could gain.irom an af- firmance of the judgment. For this reason especial attention should be given to the question whether an appeal in a matter growing out of the settlement of a decedent's estate, an appeal from an order appointing a receiver, or from any other inter- locutory order, and, in general, any appeal in which the time allowed for appealing has nearly expired, is so defectively taken as to be subject to dismissal without consideration. And if it is, a motion to dismiss the appeal should be interposed before any attempt is made tocontest the appeal on its merits. If an appeal is fatally defective, the appellee may gain an ad- vantage by waiting until the time for taking a second appeal has expired, and then moving to dismiss.^ But by moving to dismiss an appeal before that time has expired, the appellee will prob,ably accomplish nothing more than to teach his ad- versary how to perfect his appeal, or give him an opportunity to take another appeal of the same cause in proper form. There are a number of defects in an appeal which are cured by the appearance of the appellee.^ And under the rules of court, tak- ing any steps to defend the appeal will be held to constitute an appearance.' For this reason, the appellee's attorney should carefully examine the record, and inform himself^whether the appeal has been properly taken, before he agrees to submit the cause, or joins in error, or files an answer or a brief on the merits, or otherwise appears. § 19. Appearance of appellee. — If the questions raised by the appeal are such that the appellee wishes to have them promptly decided by the higher court, or if he is satisfied that the appeal is properly taken, so that it is not subject to dis- ' Michigan Mutual, etc., Co. v. 'Rule 9 Sup. Ct.. See section 19, Franks], 151 Ind. 534. Jjots-t. ' Section 199, post. § 20 STEPS IN AN APPEAL. 19 missal, he should enter his appearance. Until he does so he will not be entitled to notice of the steps taken in the appeal, such as submission, the presentation of motions, setting for oral argument, etc. The rules of court provide that appear- ances shall be entered in the clerk's office in writing,' and that an appearance shall not be withdrawn except on leave and for cause shown.* The proper mode of entering an appearance is to file a paper entitled with the name of the cause, and signed by counsel, stating that the appellees generally, or certain ap- pellees or appellants who are specifically named, thereby enter an appearance. But a joinder in error, or the filing of an answer by the party in person or by his attorney, or an agree- ment in writing to submit, filed in the clerk's office or in- dorsed on the record, will be deemed an appearance;' as will also filing a brief on the merits of the appeal.' But to consti- tute an appearance there must be of record some formal entry, plea, motion, or ofiicial act.° § 20. Assignment of cross-errors. — It frequently happens that the appellee, as well as the appellant, is dissatisfied with the judgment appealed from and wishes to have the law de- clared to be such that he is entitled to a judgment still more favorable to him; or he may think that the court made such erroneous rulings in favor of the appellant as to nullify the effect of the errors of which the appellant complains.^ It is a fundamental principle of appellate practice that a case can not be appealed by fragments,' but must be brought before the ap- pellate tribunal in a single proceeding to which all the persons interested must be made parties.' For this reason one or more of the appellees are permitted to assign cross-errors.' There is no ' Rule 8 Sup. Ct. « Section 206, post. ' Rule 9 Sup. Ct. ' Elliott's App. Proc, § 18. ' Rule 9 Sup. Ct. * Abshire v. Williamson, 149 Ind. * Lounheim V. Seeley, 151 Ind. 665; 248; Michigan Life Ins. Co. v. Hazleton v. DePriest, 143 Ind. 368. Frankel, 151 Ind. 534. ^Newton v. Pence, 10 Ind. App. 'See Patoka Tp. v. Hopkins, 131 672, 677 ; Rhoades v. Delaney, 50 Ind. Ind. 142, 146. 468; Scott v. Hull, 14 Ind. 136; Shir- ley V. Hagar, 3 B-lackf . 225. 20 APPELLATE PKACTICE. § 21 statute expressly authorizing the assignment of cross-errors, but the rules of court' provide that the appellee may, as of right and without notice, assign cross-errors within sixty days after submission. Also, that leave to assign cross-errors after the expiration of that time may be granted upon proper appli- cation in writing after notice to the appellant, if a satisfactory excuse is shown for the failure to assign them within the time allowed. But there can be no assignment of cross-errors after the expiration of one year from the time the judgment ap- pealed from is rendered.^ Although the appellant is permitted to attack the judgment below by an assignment of cross-errors, a judgment will not be reversed for errors that are only ques- tioned in this manner, wherd the appellee insists on having it affirmed.' § 21. Briefs and arguments. — Most of the arguments made in the supreme and appellate courts are presented in the form of written or printed briefs. A rule of court requires the ap- pellant to file a brief within sixty days after his appeal is sub- mitted, on penalty of having it dismissed by the clerk without consideration by the court.* This rule is strictly enforced, and a great many appeals have been dismissed for failure to com- ply with it.° It has long been an unwritten rule of court that a (failure by appellant to present in his brief any reason or au- thority in support of a point covered by his assignment of er- rors amounted to a waiver of such point, notwithstanding it was saved by a proper exception in the court below;* and a rule has recently been adopted declaring that the brief in which 1 Rule 6 Sup. Ct. «Guy v. Blue, 146 Ind. 629, 630; '^ Rule 5 Sup. Ct. ; section 139, posf. Marvin v. Sager, 145 Ind. 261, 265; 'Thomas v. Simmons, 103 Ind. 538, Ohio, etc., R. Co. v. Nickless, 73 Ind. 547; State v. Gregory, 119 Ind. 503, 382, 385; Pittsburgh, etc., R. Co. v. 505. Williams, 74 Ind. 462, 470 ; Stanton v. * Rule 21 Sup. Ct. See chapter 15, State, 74 Ind. 503, 507 ; Byram v. Gal- post. braith, 75 Ind. 134, 140; City of La- ^ Carriger V. Kennedy, 134 Ind. 107 ; fayette v. Allen, 81 Ind. 166, 170; Loucheim v. Seeley, 151 Ind. 665; Swihart v. Shaffer, 87 Ind. 208, 210; Manns Bros., etc., Co. v. Templeton, Louisville, etc., R. Co. v. Dunkin, 92 149 Ind. 706. Ind. 601, 602; Kaster v. Raster, 93 § 21 STEPS IN AN APPEAL. 21 such discussion must be contained is the brief filed within sixty days after the cause is submitted.' So that a total failure to present any point by a brief filed within sixty days amounts to a waiver of that point, and the court will give it no consid- eration.^ Additional authorities may be cited at any time until the case is decided, but they must relate to points raised in the original brief for no others will receive any consideration. If the appellee assigns cross-errors, he must file his brief thereon, within sixty days after the date .of his cross-assignment, or his cross-errors will be struck put." The rules of court allow ninety days after submission in which the appelle^ may file his brief replying to the brief of appellant, and provide that he shall not be permitted to file one after that time, except upon leave of court first obtained for sufiicient cause.' An oral argu- ment may be had on application in writing made before the time for filing briefs has expired.^ The rules of court recently adopted do not permit an oral argument, except by special leave of court, unless it is applied for within that time. The fact that an oral argument is obtained does not dispense with the filing of briefs, but briefs must be filed in all appeals.' It is no longer necessary to file a statement of points for oral argument ten days before the time set for hearing the argu- ment, but the argument must be confined to a discussion of the propositions and authorities contained in the preliminary statement of points in the brief.' Only such points as counsel Ind. 581, 583; Peoria, etc., E. Co. v. 4 Ind. App. 165, 167; Gish v. Gish, 7 Flicker, 95 Ind. 180, 181; Western U. Ind. App. 104, 105. See section 188, Tel. Co. V. Kilpatrick, 97 Ind. 42, 44; post. Maddox v. Maddox, 97 Ind. 537, 538; ^ Rule 22 Sup. Ct. See Western 17. Daniels v. McGinnis, 97 Ind. 549, 551 ; Tel. Co. v. Ferris, 103 Ind. 91, 93. Fairbanks v. Meyers, 98 Ind. 92, 99 ; ^ Manor v. Board, etc., 137 Ind. 367, Kennell v. Smith, 100 Ind. 494, 495; 393. See Western U. Tel. Co. v. Fer- Butt V. Butt, 118 Ind. 31, 33; Engle- ris, 103 Ind. 91. man v. Arnold, 118 Ind. 81 ; Metzger ' Rule 21 Sup. Ct. V. Franklin Bank, 119 Ind. 359, 361; * Rule 21 Sup. Ct. Sparklin v. Wardens, etc., 119 Ind. = Rule 26 Sup. Ct.; section 193, posf. 535; Chicago, etc., R. Co. v. Hunter, «Rule 21 Sup. Ct. 128 Ind. 213, 221 ; Mahoney v. Gano, ' Rule 28 Sup. Ct. ; section lU,post. 2 Ind. App. 107, 111; Wilson v. Kahn, 22 APPELLA'tfE PRACTICE. § 22 desire to argue in this manner need be discussed in the oral argument, as tlie failure to discuss in such argument points properly made in the brief is not deemed a waiver of such points.' § 22. Correction by certiorari. — As was stated above," it is the duty of the appellant to present on appeal a correct record of the proceedings in the trial court. But his attorney, through ignorance, haste, or oversight, sometimes fails to correct the transcript before filing it. And it sometimes happens that parts of the transcript which the appellant has passed over as immaterial will be relied on by the appellee as the basis for his cross-errors, or as showing that the errors which the appellant has assigned were harmless. Either party may pro- cure a writ of certiorari to correct errors or supply omissions in the record in a proper case. If the application is made before submission, no notice to the opposite party is necessary.' And if an application made at that time points out the errors to be corrected, and is accompanied by affidavits showing that the transcript does not correctly recite the record, the writ is usually awarded as of course. But after submission, no application for a writ of certiorari to correct the record will be entertained un- less the opposite party or his attorney shall have had ten days' notice in writing of the intended application.* But if a day for presenting the application is named in the notice, and notice is served less than ten days before that time, the supreme court will merely wait until ten days have expired after notice was given, and will then take up and pass on the application. ° Even while the rule permitting counter affidavits to be filed in op- position to an application for a writ of certiorari was in force, it was held that the court would not weigh conflicting statements in the aflidavits to determine whether or not to award the writ.* The new rules of court make no provision for filing counter ' Rule 28 Sup. Ct. ; section 195, post. ^ Durbin v. Haines, 99 Ind. 463. ^ Section 5, ante. ^ Citizens' Street E. K. Co. v. Heath, ' Rules 14, 34 Sup. Ct. ; section 213, — Ind. — , Dec. 22, 1899, citing Bur- post, ton V. Ferguson, 69 Ind. 486. * Rule 14 Sup. Ct. ; section 213, post. § 23 STEPS IN AN APPEAL. 23 affidavits. Affidavits may be filed in support of the applica- tion. The respective parties may file briefs, but oral argument will not be heard.' The application for a certiorari must clearly designate the part of the record asserted to be defective, improperly omitted, or improperly incorporated in the transcript.^ This statement should be so clear that it can be understood by reference to the original record and papers in the absence of the transcript, for the application is usually made a part of the writ issued by the clerk, and forms the instructions to the clerk of the trial court what amendments to the original transcript he shall make. Such a writ does not call on the clerk to whom it is directed to send up an entire new transcript, but only to certify to the higher court a corrected copy of the particular entries or papers alleged to have been omitted or erroneously transcribed." If the record below is erroneous it should first be corrected by proper proceedings in the trial court, and the corrected record brought up by a writ of certiorari} All efforts to correct the transcripts by affidavits, the presentation to the court of orig- inal papers, or in any other way than by a proper return to a writ of certiorari, will be futile. ° § 23. Petition for rehearing or modification. — The statute provides that either party to an appeal may file a petition for rehearing at any time within sixty days after the appeal is determined, both inciyil'and in criminal cases.' The appli- cation for rehearing must be by a petition in writing, setting forth the cause for which the judgment is supposed to be erroneous.' It may be accompanied by a brief, of which eight copies should be filed in the clerk's office within the sixty days allowed for asking a rehearing. The new rules of court re- quire that the petition and briefs shall be "presented separi ' Rule 34 Sup. Ot. = Chapter 17, post. 2 Rule 34 Sup. Ct. « Section 674, R. S. 1894. ^ Section 219, post. ' Section 1966, R. S. 1894. ♦ Section 214, post. * Rule 29 Sup. Ct. 24 APPELLATE PRACTICE. § 23 ately,'" which obviously forbids binding them in the same cover, as was often done before that rule was adopted. The petition must distinctly specify the supposed errors or omis- sions in the original judgment pronounced on appeal for which a rehearing is, asked. ^ The petition for rehearing is a pleading/ and a mere argument or brief will be held in- sufficient to perform the office of a petition. Its usual form is very similar to that of an assignment of errors,' but the specifications must relate to alleged errors of the court to which it is presented, rather than to those of the court from which the appeal was taken. A rehearing will not be granted to enable' the parties to present any question which they failed to present at the original hearing,' but only to correct errors which the court may have made in deciding or failing to decide questions that were properly presented at that time.' Either party has a right to. petition for rehearing, and the fact that the losing party waives such right, and procures the opinion to be certified down immediately under the rule of court,' does not affect the right of his adversary to petition for rehearing or to modify the mandate at any time within sixty days.* The petition for rehearing often takes the form of an application for a modification of the mandate or order of the court which decided the appeal,' and the court sometimes only modifies the mandate in answer to a petition asking a rehear- ' Eule 29 Sup. Ct. « Eeed v.Kalfsbeck, 147 Ind. 148, 157. ^ Section 243, post; Finley v. Cath- ' Rule 37 Sup. Ct. ; section 248, post. cart, 149 Ind. 470, 489 ; Baltimore, etc., 'Pittsburgh, etc., R. Co. v. Ma- R. Co. V. Conoyer, 149Ind. 524, 532; honey, 148 Ind. 196, 207. In Cleve- Louisville, etc., R. Co. v. Carmon, 20 land, etc., R. Co. v. Hudleston, 151 Ind. App. 471, 479, and authorities Ind. 540, a motion to certify the opin- cited. ion to the trial court was resisted by " Baltimore, etc., R. Co. v. Conoyer, the appellant after the case was re- 149 Ind. 524, 532. versed, though that fact does not ap- * Section 243, post. pear in the published report. ^ State V. Halter, 149 Ind. 292, 305; i* Citizens' St. R. Co. v. Robbins, 144 City of Bvansville v. Senhenn, 151 Ind. 671, 687; Pittsburg, etc., R. Co. Ind. 42, 62. Rule 22 Sup. Ct. v. Mahoney, 148 Ind. 196, 207. § 23 STEPS IN AN APPEAL. 25 ing.' A second petition for rehearing will not be entertained after one has been overruled/ but where a rehearing is granted a petition for rehearing may be presented after the decision on the second hearing is announced.' Such petition can not, however, reach any questions not considered on the rehearing granted in answer to the first petition.* ' Teegarden v. Lewis, 145 Ind. 98, Gas Co. v. Leslie, — Ind. App. — , 51 118. N. E. Eep. 510. 2 Elliott's App. Proc, § 558. * * City of Crawfordsville v. Johnson, * City of Crawfordsville v. Johnson, 51 Ind. 397. 51 Ind. 397; Manufacturer's Natural CHAPTER 3. MANNER OF RESERVING EXCEPTIONS BELOW. i 24. Exception must be taken when ruling is made. 25. What exceptions are shown by order-book entries. 26. What exceptions may be shown by bill of exceptions. 27. What exceptions maybe shown by order of court. 28. Other ways of recording excep- tions. 29. The form of a bill of excep- tions. 30. Certificate to bill of exceptions. j31. 32. 33. 34. 35. 36. 37. Presentation for judge's signa- ture. Filing after being signed. Allowance of time for filing. Effect of recitals in bill of ex- ceptions. Manner of making evidence part of the record by bill of exceptions. Manner of reserving exception by order of court. Amendment of bill of excep- tions. § 24. Exception must be taken when ruling is made. — As was stated above, it is only rulings to which exceptions were reserved in the court below that can be made available to re- verse a judgment.' Such an exception must be taken at the time the ruling complained of is made, both in civiP and in criminal cases,' though time may be granted by the court in which to reduce the exception to writing,' where a bill of excep- tions is necessary in order to save it. In the absence of such a ' Section 7, ante ; State v. Priedley, 151 Ind. 404; Chicago, etc., R. Co. v. McBeth, 149 Ind. 78; Hedrick v. Whitehorn, 145 Ind. 642; Butler v. Thornburg, 141 Ind. 152. This state- ment is subject to the exception that objections to the jurisdiction of the court over the subject-matter, and the objection that the complaint does not state a cause of action, may be pre- sented for the first time on appeal. R. S. 1894, § 346. 2R. S. 1894, §638; Winstandley v. Breyfogle, 148 Ind. 618; Banner, etc., Co. v. Kamm, etc., Co., 145 Ind. 266; Johnson v. Eberhart, 140 Ind. 210; Fletcher v. Waring, 137 Ind. 159. » R. S. 1894, § 1916. 4 R. S. 1894, §§ 638, 1916. (26) § 24 • MANNER OF RESERVING EXCEPTIONS BELOW. 27 grant of time by the court, the exception must be reduced to writing immediately;' but the grant of time will be presumed where a bill of exceptions is filed within the term at which the ruling excepted to was made.^ Where time is given beyond the term for the preparation and filing of a bill of exceptions, that fact must be shown by an order-book entry and can not be sufficiently shown by a statement in the bill itself/ The statutory provision that an exception must be taken at the time the objectionable ruling is made is mandatory, and an exception taken afterward must be disregarded.* The court has no discretion to permit an exception to be taken to a rul- ing one or more days after it is made,' even though leave to amend should be taken when the ruling is made and should be afterward withdrawn. ° Though it was taken on the same day that the ruling was made, an exception will not be avail- able if it was not taken until after additional steps in the pros- ecution or defense of the case had been taken by the party reserving it.' But the fact that one or more motions made by the opposite party precede the exception in the record will not be taken as an evidence that the exception was not taken at the time the decision was made.' This rule as to the necessity for an exception taken at the time, in order that objectionable rulings may be reviewed on appeal, is of general application. Thus, the exception to a rul- 1 Lake Erie, etc., R. Co. v. Fix, 88 Applegate v. White, 79 Ind. 413, 415; Ind. 381; Sohn v. Marion, etc., Co., Hart v. Walker, 77 Ind. 331, 335; 73 Ind. 77; Goodwin v. Smith, 72 Ind. Eobards v. State, 152 Ind. 294. 113; Hunter v. State, 101 Ind. 406; 'Brown v. Ohio, etc., R. Co., 135 Colee V. State, 75 Ind. 511. Ind. 587 ; American Ins. Co. v. Year- « Wysor V. Johnson, 180 Ind. 270; ick, 78 Ind. 202; Coan v. Grimes, 63 Hale V. Matthews, 118 Ind. 527; No- Ind. 21, 26. blesville, etc., Co. v. Teter, 1 Ind. ^ Coan v. Grimes, 63 Ind. 21. App. 322; Calvert v. State, 91 Ind. « Brown v. Ohio, etc., R. Co., 135 473 ; Fehn v. State, 3 Ind. App. 568.. Ind. 587. ' Hancher v. Stephenson, 147 Ind. 'Jones v. Van Patten, 3 Ind. 107; 498; Engleman v. Arnold, 118 Ind. Dickson v. Rose, 87 Ind. 103; Barner 81, 82; Benson v. Baldwin, 108 Ind. v. Bayless, 134 Ind. 600, 605. 106,107; Jones v. Jones, 91 Ind. 72, spjgjj-gon ^ Rose, 87 Ind. 103; 75 ; Hall v. Stanley, 86 Ind. 219, 221 ; Helms v. Wagner, 102 Ind. 385. Eshelman v. Snyder, 82 Ind. 498, 500; 28 APPELLATE PKACTICE. § 25 ing on demurrer must be taken when the ruling is announced;' where an agreed case is presented to the court, an exception to its decision must be reserved when the decision is announced ;" where the court makes a special finding, and states conclusions of law thereon, an exception to such conclusions must be re- served at the time the finding and conclusions are filed;' where objectionable instructions are given, or instructions asked are refused, the record must be made to show that an exception was taken at the time, or the error will not be available on appeal.' The same rule applies where offered evidence is re- jected, ° or improper evidence is admitted. ° This general rule is open to the exception that where a judgment or ruling is made in the absence of a party and without his knowledge an objection and exception taken at the first legal opportunity will be in time ;' for it can not with any show of fairness and reason be claimed that a party assents to a ruling of court of which he had no knowledge or opportunity of acquiring knowledge." But unless it is affirmatively shown that proper objection was made, and an exception saved at the earliest legal opportunity, a party will not be heard to complain of an irregularity com- mitted, in his absence.' § 25. What exceptions are shown by order-book entries. — It is provided by statute that where the decision objected to is 'American Ins. Co. v. Yearick, 78 v. Citizen, 101 Ind. 18; Lewis v. Ind. 202 ; Brown v. Ohio & M. E. Co., Lewis, 30 Ind. 257. 135 Ind. 587. ^Lake Erie, etc., R. Co. v. Parker, ' The Warrick, etc., Assn. v. Houg- 94 Ind. 91 ; City of Delphi y. Lowery, land, 90 Ind. 115, 117. See Geisen v. 74 Ind. 520; Farman v. Lauman, '73 Reder, 151 Ind. 529. Ind. 568; First National Bank v. Col- 3 Earner V. Bayless, 134 Ind. 600, ter, 61 Ind..l53. 605; Hull V. Louth, 109 Ind. 315; 'Wabash R. Co. v. Dykeman, 133 Helmsv. Wagner, 102 Ind. 385; Smith Ind. 56, 64; Henning v. State, 106 V. McKean, 99 Ind. 101. Medical Col- Ind. 386,393; Behrens v. McCance, lege V. Commingore, 140 Ind. 296. 106 Ind. 330; Preston v. Sandford's « Behymer v. State, 95 Ind. 140, 142 ; Adm'r, 21 Ind. 156. Childress v. Callender, 108 Ind. 39.4, 'Wabash R. Co! v. Dykeman, 133 396; Van Dolsen v. State, 1 Ind. App. Ind. 56, 64. 108,109. 'Messenger v. State, 152 Ind. 227; = Kern V. Bridwell, 119 Ind. 226; Reed v. State, 141 Ind. 116; Water- Gipe V. Cummins, 116 Ind. 511 ; Judy man v. State, 116 Ind. 51. § 25 MANNER OF EESERVING EXCEPTIONS BELOW. 29 entered on the record and the grounds of objection appear in the entry, an exception may be taken by causing the fact that the party excepts to be noted at the end of the decision/ This statute is construed to mean that an exception can be taken in this manner when the decision excepted to forms a part of the legal record, but not when it forms no part thereof, although it is copied into the record.^ The matters which form a part of the legal record are defined by statute to be all proper en- tries made by the clerk, and all papers pertaining to a cause and filed therein, except a summons for the defendant where all the persons named in it have appeared to the action, and summons for witnesses, depositions and other papers which are used as mere evidence.' But it is provided that where amended pleadings are filed the original pleadings of which they take the place cease to be a part of the record.* This provision is held to make the complaint, answer, reply, demurrers and instruments of writing on which pleadings are based,' as well as all objections and exceptions addressed thereto,' parts of the record without any special action being taken to make them so. Also the verdict and answers to special interrogatories,' and all direct motions based on the facts shown by the record, with the rulings thereon and. excep- tions thereto.' Thus, amotion for a new triaP or a motion for judgment on the verdict or special findings," a motion in arrest ' E. S. 1894, § 640. See also R. S. Frank v. Grimes, 105 Ind. 346; Schaff- 1894, § 1914, as to criminal cases. ner v. Kober, 2 Ind. App. 409. ^Scotten V. Divilbiss, 60 Ind. 37; «Redinbo v. Fretz, 99 Ind. 458; Coffman V. Reeves, 62 Ind. 334; State Monroe v. Adams Express Co., 65 V. Cooper, 103 Ind. 75. Ind. 60; Frank v. Grimes, 105 Ind. ' E. S. 1894, § 662. 346. ' E. S. 1894, § 662. ^ Hill v. Newman, 47 Ind. 187 ; Nic- ^Kesler v. Myers, 41 Ind. 543; hoi v. Thomas, 53 Ind. 42; Hunter Heizer V. Kelly, 73 Ind. 582. v. Hatfield, 68 Ind. 416; Smith v. ^Matlockv. Todd, 19Ind. 130; Bed- .James, 131 Ind. 131. inbo V. Fretz, 99 Ind. 458. "Schaffner v. Kober, 2 Ind. App. 'Monroe V. Adams Express Co., 65 .409; Frank v. Grimes, 105 Ind. 346; Ind. 60, 64; Salander v..Lockwood, 66 Salander v. Lockwood, 66 Ind. 285, Ind. 285; Boots v. Griffiths, 97 Ind. 289; Fireman's etc., Co. v. Dunn, — 241; Eedinbo v. Fretz, 99 Ind. 458; Ind. App. — , 53 N. E. Eep. 251. 80 APPELLATE PRACTICE. § 26 of judgment' or a motion for a venire de novo,^ together with the rulings thereon and exceptions saved to such rulings, may be made parts of the record without a bill of exceptions be- cause the decision and the grounds of objection will be fully shown by the record entries and papers. But collateral motions and the rulings thereon, and all rulings made in the trial of the case, together with objections and exceptions thereto, do not become parts of the record unless appropriate action is taken to make them so.^ Matters which the law requires to be entered on the order book must appear by the transcript filed in the supreme or appellate court to have been so entered, and can not be sufi&ciently shown by recitals in a bill of exceptions.* § 26. What exceptions may be shown by bill of exceptions. — The civil code ° provides that when the record does not other- wise show the decision or grounds of objection thereto, the party objecting must, within such time as may be allowed, pre- sent to the judge a proper bill of exceptions, and procure it to be duly signed and filed. Also that the clerk shall not certify as a part of the record on appeal a transcript of motions, afB- davits and other papers, when they relate to collateral matters, and depositions and papers filed as mere evidence, unless they are made part of the record by bill of exceptions or order of court ; and further provides that every paper and pleading above mentioned may be made part of the record on motion, either by bill of exceptions or order of court.' These provis- ions of the statute have no application to appeals in criminal cases. In such cases all exceptions not saved by the entry of the clerk as a part of the proceedings in court must be saved, by bill of exceptions and can not be saved in any other man- ner.' And even in civil cases an attempt to save exceptions 1 Chandler v. State, 141 Ind. 106. etc., Co. v. Globe, etc., Co., 146 Ind. See Fall v. Hazelrigg, 45 Ind. 576, 673. 582 ; Buskirk's Practice, p. 263. = R. S. 1894, § 641. 'See Pittsburgh, etc., R. Co. v. ^ R. S. 1894, § 662. Ruby, 38 Ind. 294, 802. 'R. S. 1894, §§ 1914-1918; Lever- « See sections 26, 27, 28, post. ich v. State, 105 Ind. 277 ; Meredith v. 'Grayv. Singer, 137 Ind.257; Home, State, 122 Ind. 514. §26 MANNER OF RESEKVING EXCEPTIONS BELOW. 31 under some other provision of the statute does not deprive a party of the right also to reserve such exceptions by bill of exceptions.' Oral testimony can only be saved by a bill of ex- ceptions/ but as to many collateral matters a party has his choice of reserving his exceptions by a bill of exceptions or by an order of court," and for reserving exceptions to the instructions in a civil case still another mode is provided.* Among the collateral matters that do not become parts of the record unless specially made so are motions to make pleadings more spe- cific/ to strike out parts of a pleading," to separate the causes of action stated in the complaint,' to tax costs,' to re- quire the plaintiff to give security for costs,' motions for changes of venue," and motions to dismiss the plaintiff's ac- tion." Also a motion for a continuance,'^ or for judgment for costs, '" or judgment on the pleadings," or to strike out interrogatories," or to modify the judgment," is such a col- lateral motion as must be saved by a bill of exceptions or order of court." » Ohio, etc., R. Co. v. Dunn, 138 Ind. 18. But see section 25, ante. ^ American, etc, Co. v. Sisk, 9 Ind. App. 305, 315; Thomson v. Madi- son, etc., Assn., 103 Ind. 279; Close V. Pittsburgh, etc., E. Co., 150 Ind. 560, 563. ' See section 27, post. * See section 28, post. ' City of Seymour v. Cummins, 119 Ind. 148; Boyce v. Graham, 91 Ind. 420 ; Indiana Manfg. Co. v. Millican, 87 Ind. 87; Manhattan Life Ins. Co. V. Doll, 80 Ind. 113; Balue v. Rich- ardson, 124 Ind. 480. « State V. Halter, 149 Ind. 292, 304; Dudley v. Pigg, 149 Ind. 363, 369 ; City of Seymour V. Cummins, 119 Ind. 148; Indiana Manfg. Co.v. Millican, 87 Ind. 87; Holland v. Holland, 131 Ind. 196; Colhns V. Cornwell, 131 Ind. 20. 'City of Seymour v. Cummins, 119 Ind. 148; Jarvisv. Banta, 83 Ind. 528. ' Gallimore v. Blankenship, 99 Ind. 390; Leffel v. Obenchain, 90 Ind. 50. 'Hadley v. Hadley, 82 Ind. 95. " Siebert v. State,95 Ind. 471 ; Board of Commissioners v. Benson, 83 Ind. 469 ; Lawless v. Harrington, 75 Ind. 379. " Long V. Town of Brookston, 79 Ind. 183. " Colee V. State, 75 Ind. 511 ; Bender V. Wampler, 84 Ind. 172; Cox v. Stout, 85 Ind. 422; Beard v. State, 54 Ind. 413. " Beard v. Hand, 88 Ind. 183. " Hill V. Jamieson, 16 Ind. 125. '' Borchus V. Huntington,etc.,Assn., 97 Ind. 180. i« Whipple V. Shewalter, 91 Ind. 114; Evansville, etc., R. Co. v. Frank, 3 Ind. App. 96, 113 ; Marsh v. Morris, 133 Ind. 548; Allen v. Berndt, 138 Ind. 355; Hamrick v. Loring, 147 Ind. 229. "Elliott's App. Proc, § 817. 32 APPELLATE PRACTICE. § 27 Affidavits filed in support of motions can only be brought into the record by bill of exceptions or order of court, whether the motions themselves become parts of the record, under the designation of papers pertaining to the cause, such as motions for a new trial,' or are such collateral motions as must them- selves be made part of the record by bill of exceptions or or- der of court. ^ Where a matter ruled on is shown by bill of exceptions, the ruling thereon, the fact that the party excepted thereto, and the grounds on which his exceptio'n was based should also be stated.' If the party against whom a ruling is made has any doubt as to whether such ruling and the grounds on which it is based, and those on which he bases his excep- tion, are proper parts of the record, he should always cause them to be made so by a bill of exceptions. § 27. What exceptions may be shown by order of court. — The only authority for bringing extrinsic matters into the record by an order of court is found in that section of the statute,' which, after providing that a transcript of motions, afiidavits and other papers, when they relate to collateral mat- ters, and .depositions and papers filed as mere evidence shall not be certified as a part of the record on appeal unless made a part thereof by exception or order of court, contains the further provision that "every paper and pleading above ex- cepted may be made part oE the record by exceptions or order of court on motion."' This section, however, has no applica- tion to criminal cases,' and the only way for making instruc- iTownsend v. State, 132 Ind. 315; v. Davis, 97 Ind. 79; Evans v. Shafer, McClure v. State, 116 Ind. 169; Mc- 88 Ind. 92; Ulrick v. Hervey, 76 Ind. Connell v. Huntington, 108 Ind. 405; 107; Judson v. Eomaine, 8 Ind. App. Kleespies v. State, 106 Ind. 383. 390; Sheeks v. Pillion, 3 Ind. App. 2 Seibert V. State, 95 Ind. 471 ; Comp- 262. ton V. State, 89 Ind. 338; Board of *E. S. 1894, §662. Commissioners v. Benson, 83 Ind. 'Close v. Kttsburgh, etc., E. Co., 469 ; Colee v. State, 75 Ind. 511 ; Long 150 Ind. 560, 563. v.State, 46 Ind. 582; Sidener V.Davis, ^jsjaanes v. State, 143 Ind. 299; 87 Ind. 342; Hadley v. Hadley, 82 Chandler v. State, 141 Ind. 106; Mere- Ind. 95; Swan v. Clark, 80 Ind. 67. dith v. State, 122 Ind. 514; VanDolsen 3 Yost V. Conroy, 92 Ind. 464; Eoss v. State, 1 Ind. App. 108. § 27 MANNER OF KBSKEVING EXCEPTIONS BELOW. 33 tions,' or other extrinsic matters/ part of the record in such cases is by embodying them in a proper bill of exceptions.' The provision in the section of the civil code above quoted * is confined exclusively to papers and documents' and does not authorize anything else to be made a part of the record by order of court. To be sufficient, the order must designate with reasonable certainty the particular extrinsic matters which it seeks to make a part of the record/ and such matters must be set out in full in the order.' There is no reason to believe that the legislature intended that an order of court should be any less certain as to what was included in the record than a bill of exceptions, or that it should provide any less cum- bersome means of incorporating matters into the record, far- ther than that the papers and documents indicated might be written out at once by the clerk under direction of the court, and thus the trouble of writing a bill of exceptions and securing the judge's approval and signature, thereto might be saved." Even where the instructions requested by the appellant and refused were copied into the order of court, it was held that they were no part of the record where the order was that " all the instructions to the jury are now filed and ordered to be made a part of the record in the cause without bill of exceptions," the court saying that instructions requested and refused could not be properly designated as " instructions to the jury."' Merely transcribing the instructions in an order- book entry does not make them a part of the record, to be considered as such on an appeal to the supreme court." 1 Bealer v. State, 150 Ind. 390 ; State ^ jjuss v. Euss, 142 Ind. 471, 474. V. Hunt, 137 Ind. 538; Lane v. State, « Ruas v. Euss, 142 Ind. 471; Port 151 Ind. 511; Hannan v. State, 149 Huron, etc., Co. v. Smith, 21, Ind. Ind. 81 ; VanDolsen v. State, 1 Ind. App. 233. App. 108; Leeper v. State, 12 Ind. 'Close v. Pittsburgh, etc., E. Co., App. 637. 150 Ind. 560. ^Graybeal v. State, 145 Ind. 623; ^ close v. Pittsburgh, etc., E. Co., Naanes v. State, 143 Ind. 299 ; Chand- 1-50 Ind. 560, 564. ler V. State, 141 Ind. 106; Meredith v. ^Port Huron, etc., Co. v. Smith, 21 State, 122 Ind. 514. Ind. App. 233. 'E. S. 1894, §§1914, 1918. loQlds v. Deckman, 98 Ind. 162; «E. S. 1894, §,662. Berghoff v. McDonald, 87 Ind. 549, 3 — App. Practice. 556. 34 APPELLATE PRACTICE. § 28 § 28. Other ways of recording exceptions. — An apparent exception to the rules above laid down as to the manner in which extrinsic matters may be made part of the record is found in the manner of reserving exceptions to instructions in civil cases. The statute provides that a party excepting to the giving of instructions or the refusal to give instructions asked shall not be required to file a formal bill of exceptions, but it shall be sufficient to write on the margin or at the close of each instruction "refused and excepted to," or "given and ex- cepted to," which memorandum shall be signed by the judge and dated.' But when read in connection with a preceding section,^ it will be seen that this is not an exception to those rules; for that section provides that all instructions given by the court must be signed by the judge and filed, together with those asked by the parties, as a part of the record,' and it is only the instructions which are thus made a part of the record to which exceptions can be saved by an indorsement on the margin or at the close thereof.' The instructions asked and re- fused need only be signed by counsel who presented them , though the exceptions indorsed thereon must be signed by the judge.* The fact that the instructions were filed must be affirmatively shown by the record, in order that exceptions saved in this manner may be available.^ These provisions have no applica- tion to the instructions in criminal cases, and the only way that such instructions can be made a part of the record on ap- peal is by having them embodied in a bill of exceptions.' The statutory method of making the instructions a part of the record in a civil case is not exclusive, but the instructions and exceptions thereto may be brought into the record by bill 1 R. S. 1894, § 544. Ind. 626, 535 ; O'Donald v. Constant, ' R. S. 1894, § 542, subdivision 6. 82 Ind. 212; Fitzmaurice v. Puter- " R. S. 1894, § 542, subdivision 6. baugh, 17 Ind. App. 318; Otis v. * Krom V. Vermillion, 143 Ind. 75, Weiss, — Ind. App. — , 53 N. E. Eep. 77; VanSickle v. Belknap, 129 Ind. 428. 558; Olanin v. Fagan, 124 Ind. 304; 'Bealer v. State, 150 Ind. 390; Lane Olds V. Deckman, 98 Ind. 162; Su- v. State, 151 Ind. 511; Hannan v. preme Lodge v. Johnson, 78 Ind. 110. State, 149 Ind. 81; State v. Hunt, 137 5 Hall v. State, — Ind. App. — , De- Ind. 537, 551 ; Delhaney v. State, 115 cember 19, 1899. Ind. 499; Leverich v. State, 105 Ind. " Fort Wayne, etc., R. Co. v. Bey- 277 ; VanDolsen v. State, 1 Ind. App. erle, 110 Ind. 100; Blount v. Rick, 108; Campbell v. State, 3 Ind. App. 107 Ind. 238; Elliott v. Russell, 92 206; Leeper v. State, 12 Ind. App. 637. § 28 MANNER OP RESERVING EXCEPTIONS BELOW. 35 of exceptions if that method is preferred.' If the statutory- method is pursued, the statute must be strictly followed.^ The memorandum "given and excepted to," or "refused and ex- cepted to," must be written on the margin or at the close of each instruction to which an exception is reserved, and must show who took the exception.' And thi^ memorandum must be dated* and signed by the judge. ° Signing by the appellant's attorney is not sufficient.* The record must also show that the exception was saved by the party who alleges that the instruc- tion was erroneous. A general statement that an instruction given by the judge of his own motion was "given and excepted to" fails to. disclose who saved the exception,'' though it was held that where an instruction asked by the appellant was in- dorsed "refused and excepted to," and properly dated and signed, the supreme court would presume that the appellant took the exception, and it was held to be properly in the rec- ord.' Under the practice in this state there are only three modes by which instructions and the exceptions thereto in a civil case may be made part of the record. Those modes are by or- der of court, by a general bill of exceptions, or by the statu- tory method above described.' Merely copying them into a motion for a new trial does not make them a part of the rec- ord." Exceptions to instructions must be taken separately and >Burk V. Andis, 98 Ind. 59, 63; City of Huntington v. McClurg, — Ohio, etc., E. Co. v. Dunn, 138 Ind. Ind. App. — , 53 N. E. Kep. 658. 18. ' Indiana, etc., R. Co. v. Bundy, 152 ^ Roose V. Eoose, 145 Ind. 162. Ind. 590; McCreery v. Nordyke, — 'Childress v. Callender, 108 Ind. Ind. App. — , 53 N. E. Rep. 849. 394 ; City of Huntington v. McClurg, ' Indiana, etc., R. Co. v. Bundv, 152 — Ind. App. — , 53 N. E. Rep. 658. Ind. 590. 'Roose V. Roose, 145 Ind. 162; Be- ^Ohio, etc., E. Co. v. Dunn, 138 hymer V. State, 95 Ind. 140. Ind. 18; Evansville, etc., R. Co. v. = C!anin v. Fagan, 124 Ind. 304; Weikle, 6 Ind. App. 340. Joseph V. Mather, 110 Ind. 114; Chil- "Bradway v. Waddell, 95 Ind. 170; dress V. Callender, 108 Ind. 394; City Applegate v. Baxley, 93 Ind. 147; of Huntington v. McClurg, — Ind. Gheens v. Golden, 90 Ind. 427; But- App. — , 53 N. E. Rep. 658. terfield v. Davenport, 84 Ind. 590; s Nowlin V. Whipple, 89 Ind. 490 ; Zehner v. Aultman, 74 Ind. 24. Baldwin v. Shill, 3 Ind. App. 291; 36 APPELLATE PRACTICE.' § 29 must specifically designate which instruction is excepted to.' An exception can not successfully be reserved to two or more instructions in gross.* If an exception is taken to the giving of two or more instructions jointly or in gross, or to the action of the court in refusing to give two or more instructions, such exceptions will not be available if any one of the instructions given was correct, or any of those which the court declined to give were correctly refused.' A similar rule is applied where giving two or more instructions is assigned as a single rea- son for a new trial.' § 29. The form of a bill of exceptions. — The civil code pro- vides that no particular form of exception is required, but the objection must be stated with so much of the evidence as is necessary to explain it and no more, and the whole as briefly as possible.^ And the criminal code provides that the bill of exceptions in an appeal by the state must state clearly so much of the record and proceedings as may be necessary for a fair statement of the question reserved, ° and that the bill of excep- tions in other cases must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions are taken.' These sections are only declaratory of the general rule in force in all courts. The form of a bill of exceptions is of but little importance, provided the substance of the bill is such as to fully and fairly present the question.' It is held, however, that a bill of exceptions must have such a formal beginning and conclusion as to disclose that it is a bill of exceptions, and what it purports to contain, and to identify it as a part of the record.' 'Musgrave v. State, 133 Ind. 297, Ind. 642, 664; Cincinnati, etc., K. Co. 313; State v. Gregory, 132 Ind. 387; v. Cregor, 150 Ind. 625. Ohio, etc., E. Co. v. McCartney, 121 =R. S. 1894, §639. Ind. 385; Western U. Tel. Co. v. «R. S. 1894, § 1915. Trissal, 98 Ind. 566, 570. ' R. S. 1894, § 1917. ^Elliott's App. Proc, §792. ^Elliott's App. Proc, §806. Forthe 'State V. Gregory, 132 Ind. 387; statutory provisions as to preparing a Musgrave v. State, 133 Ind. 297, 313; bill of exceptions when a question of Kluse V. Sparks, 10 Ind. App. 444, 453. law is reserved, see R. S. 1894, § 642. ^ Sievers v. Peters, etc., Co., 151 ^Jenkins v. Wilson, 140 Ind. 544; § 30 MANNER OF RESERVING EXCEPTIONS BELOW. 37 The usual form of a bill of exceptions contains the proper title of the case with the name of the court, followed by a state- ment in language similar to the following : Be it remembered that among the proceedings had in the court, of • county, in the state of Indiana, at the term thereof, in the year 189^, the Hon. , judge, presiding, are the following, in cause No. , wherein is plaintiff and is defendant, that is to say ; (Here recite in full the evidence, motions, or other matters on which the ruling of the court was based, together with the ruling of the court, the ex- ception and objection thereto, and the grounds on which the objection was based, stating the matter so fully as to disclose the supposed error, and the fact that the party excepting was probably prejudiced thereby, after which the following form of conclusion may be used). And the sajd (plaintiff or defendant) now here tenders this his bill of exceptions, on the day of , and prays that the same may be signed, sealed, and made a part of the record, which is accordingly done on this the day of . Judge of the Court. § 30. Certificate to bill of exceptions. — The signature and certificate of the judge to the correctness of a bill of exceptions are essential parts of it.' The statute requires that his certifi- cate shall recite the date of presentation to the trial judge. ^ This provision is mandatory," and unless the date of its pre- sentation is set out in the bill itself, it must be signed and filed before the expiration of the time allowed for presenting it, or the supreme court will presume that it was not presented to the judge until the date of his signature, notwithstanding a recital to the effect that "now, within the time fixed, the de- fendants present their bill of exceptions," etc.* A mere in- dorsement on the bill of exceptions, though signed by the judge, is not sufficient to show the date of its presentation,* but that Huston V. Cosby, 14 Ind. App. 602. « Orton v. Tilden, 110 Ind. 131, 139. See Chicago, etc., R. Co. v. Wolcott, ^Chicago, etc., E. Co. v. Cason, 141 Ind. 267. 151 Ind. 329; Ayers v. Armstrong, ' R. S. 1894, § 641. 142 Ind. 263; Cornell v. Hallett, 140 2R. S. 1894, § 641. Ind. 634; McCoy V. State, 121 Ind. 160; 'Buckner v. Spalding, 127 Ind. 229; Hermann v. Hartmetz, 128 Ind. 353; Bierly v. Harrison, 123 Ind. 516; Mc- City of Plymouth v. Fields, 125 Ind. Cormick, etc., Co. v. Maas, 121 Ind. 323; White v. Gregory, 126 Ind. 95; 132. Miller v. Blue, 11 Ind. App. 288. 38 APPELLATE PRACTICE. § 30 must be stated in the body of the bill.' If the bill is presented within the proper time, and is made to show that fact, a delay- in signing and causing it to be filed will not deprive the party of its benefit.^ The date when the judge signed the bill of ex- ceptions must also be stated,' for it is necessary that the record should affirmatively show that it was filed after he signed it.' And even though the signing and filing are both shown, a bill of exceptions will be held insufiicient, unless the signing is shown to have preceded the filing;' or facts are shown from which the subsequent filing ought reasonably to be inferred. Where. the bill was signed and filed on the same day the clerk's certificate that a "bill of exceptions" was filed that day was held sufficient to show that the signing preceded the filing, on the ground that there was legalljr no bill of exceptions to be filed until after the judge's signature was affixed.^ If the bill of exceptions relates to the instructions the certifi- cate should be made affirmatively to show that all the instruc- tions given by the court are set forth therein,' because unless the record affirmatively shows that it contains all the instruc- tions, no question concerning the action of the court in giving or refusing to give instructions can be presented on appeal.' If the exceptions relate to the evidence it is necessary in almost every case that the judge's certificate should state that the bill contains all the evidence given in the cause.' A rule of court ' Buckner v. Spalding, 127 Ind. 229 ; ^ McCormick Harvesting Machine Hormann v. Hartmetz, 128 Ind. 353; Co. v. Smith, 21 Ind. App. 617; Camp- Orton V. Tilden, 110 Ind. 131; Mc- bell v. Bowen, — Ind. App. — ,53N. Cormick, etc., Co. v. Maas, 121 Ind. E. Rep. 656. ' McCov V. Able, 131 Ind. 417 ; Wy- " ^'"^- ^PP' — ' ^^ ^- ^- ^^P' *^°- sor V. Johnson, 130 Ind. 270; Vin- 'State v. Winstandley, 151 Ind. cennes, etc., Co. v. .White, 124 Ind. 495, 501; Lane v. State, 151 Ind. 511, 376; Terre Haute, etc., R. Co. v. Bis- 514; Hannan v. State, 149 Ind. 81; sell, 108 Ind. 113. Reynolds v. State, 147 Ind. 3, 12; ' Drew V. Town of Geneva, 150 Ind. Forsyth v. Wilcox, 143 Ind. 144. 662, 668; Louisville, etc., R. Co. v. ar „ „ ot.„(.„ iki t^a kh ki^. o„i,„„'.^+ 1^-7 T„j' coo cKo TvT„i „ ° LauB V. State, 151 Ind. 511, oi4; ochmidt, 147 Ind. bio, 652 Make- q* i-„ iir;„„i„Jji„,, iki t^a aoc:. ' x> V, T^a T A oAo btate v. Winstandley, ISl Ind. 49o peace V. Bronnenburg, 146 Ind. 243, p„-.„ti, „ Wilrox 143 Ind 144- 248; McCormick Harvesting Machine p? 1 Wo.vJ! i4.^ T^^q iS? iw! rt o -iu oi T J A oiT n Fence v. Waugh, Ido Ind. 143, 10/; Co V. Smith, 21 Ind App 617; Camp- Elliott's App. Proc, § 722. bell V. Bowen, — Ind. App. — , 53 ^'^ ' ' N. E. Rep. 656. s Beatty v. O'Connor, 106 Ind. 81; * Drew V. Town of Geneva, 150 Ind. Smith v. James, 131 Ind. 131, 134; 662,668; Makepeace v. Bronnenburg, Shugart v. Miles, 125 Ind. 445, 454; 146 Ind. 243, 248. Perkins v. Hayward, 124 Ind. 445; § 31 MANNER OF EESERVING EXCEPTIONS BELOW. 39 formerly required that this should be stated in the words "and this was all the evidence given in the cause," but that rule is no longer in force, and it is now held that any words of equiva- lent meaning are suflficient.' Thus, the use of the word "intro- duced" instead of the word "given" has been held sufiBcient, the court saying that the one word was the equivalent of the other/ But "testimony" isheldnottobe synonymous with "evidence," and the use of the word testimony in the judge's certificate is held insufficient.' It is also held insufiicient to use the word "offered" instead of the word "given" in the certificate.* The clerk's certificate to the transcript should not be a part of the bill' of exceptions but should follow it and should identify the bill.= § 31. Presentation for Judge's signature. — The statute pro- vides that when time is given to reduce an exception to writing, the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions, which, if true, he shall promptly sign and cause to be filed in the cause. ^ It also provides that delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit there- of.' Under this statute it is very properly held that the date of presentation of a bill of exceptions, if stated in the body of the instrurhent, controls the question, whether it was presented Mercer v. Oorbin, 117 Ind. 450, 455. Sandford Tool, etc., Co. v. Mullen, Elliott's App. Proc, §823. But see 1 Ind. App. 204, 207; Ehrisman v. Bain v. Goss, 123 Ind. 511. Scott, 5 Ind. App. 596. 'Beatty v. O'Connor, 106 Ind. 81; * Garrison v. State, 110 Ind. 145; Jones V. Layman, 123 Ind. 569, 572; Central U. Tel. Co. v. State, 110 Ind. Gates V. Haw, 150 Ind. 370. 203, 207; Lyon v. Davis,'lll Ind. 384. ^ Jones V. Layman, 123 Ind. 569, '572; Stair v. Richardson, 108 Ind 429; Brock v. State, 85 Ind. 397 Kennedy v. Divine, 77 Ind. 490. 3 Miller v. Fuller, 21 Ind. App. 254 Mattingerv. Lake Shore, etc., E. Co. 117 Ind. 136; Kleyla v. State, 112 Ind ^ Windstandley v. Breyfogle, 148 Ind. 618. ' «R. S. 1894, §641. ' R. S. 1894, § 641 ; Smith v. State, 143 Ind. 685; Wysor v. Johnson, 130 Ind. 270; Vincennea Water Supply Co. V. White, 124 Ind. 376; Robinson 146; Central U. Tel. Co. v. State, 110 v. Anderson, 106 Ind. 152; State v. Ind. 203, 207 ; Barley v. Dunn, 85 Ind. Slick, 86 Ind. 501. 338; Ingel v. Scott, 86 Ind. 518; 40 APPELLATE PKACTICE. § 31 within the time allowed by the court,' and that, if it is pre- sented in time, a bill of exceptions may be signed and filed after the time allowed has expired.^ But in order that a bill of exceptions signed by the judge after the time for presenting it has expired may be sufficient it must afiirmatively appear that it was presented in time. The presentation of an incor- rect bill of exceptions to the judge will not give him authority after the time allowed has expired, to alter it by corrections so as to make an entirely different instrument and then sign it.' It is also necessary that the correctness of the bill of excep- tions should be formally attested by the official signature of the judge, and a mere certificate that it was presented to him within the allowed time is not sufficient.* The fact that time was given beyond the term in which to present a bill of exceptions must be shown by an order-book entry, made when the time for filing it was granted, and can not be established by a mere recital in the bill of exceptions itself.' Neither can such fact be established by a statement in the record entry of the filing of the bill that such filing is within the time allowed.* If the judge should refuse to sign the bill of exceptions, the supreme court, on proper application,' will issue a writ of mandamus to compel him to sign it.' But while a judge may be com- pelled to sign a bill of exceptions, he will not be directed what he shall put into it.' If the judge should be absent from the state when the time allowed for presenting the bill of ex- ceptions expires, that fact will not enable the party to make 'McCoy V. Able, 131 Ind. 417, 420; over v. Reed, 65 Ind. 313; Johnson Gish V. Gish, 7 Ind. App. 104, 109. v. Ballard, 148 Ind. 181. 2 Smith V. , State, 143 Ind. 685 ; « DePauw University v. Smith, 11 McCoy V. Able, 131 Ind. 417; Wysor Ind. App. 313. V.Johnson, 130 Ind. 270; Terre Haute, 'State v. Friedley, 151 Ind. 404; etc., R. Co. V. Bissell, 108 Ind. 113; State v. Slick, 86 Ind. 501; State v. Harvey v. State, 5 Ind. App. 422. Dyer, 99 Ind. 426. See Smith v. State, 'Citizens' State Bank v. Julian, — 143 Ind. 685. Ind. — , 54 N. E. Rep. 390. 'State v. Friedley, 151 Ind. 404; « Harvey v. State, 5 Ind. App. 422. Jelley v. Roberts, 50 Ind. 1 ; State v. ^Hancher v. Stephenson, 147 Ind. Dyer, 99 Ind. 426. 498 ; Engleman v. Arnold, 118 Ind. 81 ; ^ Jelley v. Roberts, 50 Ind. 1. See Benson v. Baldwin, 108 Ind. 106; Smithv. State, 143 Ind. 685. Jones V. Jones, 91 Ind. 72; Shoon- § 31 MANNER OF RESERVING EXCEPTIONS BELOW. 41 the bill of exceptions a part of the record without the judge's signature.' While the absence of the judge from the state may not deprive the party of his right to a bill of exceptions/ he must apply to the judge for his signature immediately on his return, or the bill will not be treated as a part of the record.' A bill of exceptions which is not shown to have been presented in time can not be cured by affidavits presented to the supreme court showing the absence of the jud-ge. While the trial court might have authority in a proper case to make the record show that a bill of exceptions had been presented in time, when such presentation was prevented by the wrongful conduct of the appellee, if the trial court on proper application refuses to do so, the supreme court will not consider affidavits filed in that court setting forth appellant's excuse for not filihg the bill in time.' Where the case was tried and time for presenting a bill of exceptions allowed by the circuit judge, no other judge has authority to sign the bill of exceptions.^ This statement is subject to the somewhat illogical exception* that where a judge's term of office expires the bills of exceptions in cases tried by > him must be signed by his successor.' Where a special judge is appointed to try a case, he has the same power that the regular judge would have to allow time in which to present a bill of exceptions, and has authority to sign such bill, if presented within the time allowed,* while a bill attested by the regular judge must be disregarded.' But where the case was tried by the regular judge, and the special judge did nothing therein but to overrule a motion for a new 'Toledo, etc., E. Co. v. Eogers, 48 ers' Ins. Co. v. Leeds, 38 Ind. 444; Ind. 427; Kirby v. Bowland, 69 Ind. Halstead v. Brown, 17 Ind. 202; To- 290 ; State v. Dyer, 99 Ind. 426. iedo, etc., E. Co. v. Eogers, 48 Ind. 427. ' State V. Dyer, 99 Ind. 426; Eigler "Elliott's App. Proc, § 799. V. Eigler, 120 Ind. 431. ' Ketcham v. Hill, 42 Ind. 64; Smith ='State V. Dyer, 99Ind. 426; Eigler v. Baugh, 32 Ind. 163; McKeen v. V. Eigler, 120 Ind. 431. See Kirby v. Boord, 60 Ind. 280; Eeed v. Worland, Bowland, 69 Ind. 290. 64 Ind. 216; Cincinnati, etc., E. Co. * Goldthait v. Cincinnati, etc., E. v. Grames, 8 Ind. App. 112, 115. Co., 143 Ind. 356; Eigler v. Eigler, 'Lerch v. Emmett, 44 Ind. 331. 120 Ind. 431. ' Stewart v. Adam, Meldrum & And- ^Eeed v. Worland, 64 Ind. 216; erson Co., — Ind. — , December 22, Ketcham v. Hill, 42 Ind. 64; Travel- 1899. 42 APPELLATE PRACTICE. , § 32 trial, it was held that he could have no knowledge as to what evidence was given in the cause, and had no authority to sign a bill of exceptions containing it.' Where a change of venue is taken from the regular judge he has no authority afterward to sign a bill of exceptions setting forth the proceedings be- fore him prior to the time the change of venue was taken, but such bill must be signed by the special judge." Where one of the attorneys in a cause was elected circuit judge, it was held that he was not competent to sign a bill of exceptions setting forth the objections made on behalf of his client, but should have appointed the judge who tried the cause, or some other competent person, as a special judge to pass upon and sign the bill of exceptions.' The bill must be signed by the judge in persqn. The settling of a bill of exceptions is a ju- dicial act ; and, as a judicial act can not be delegated,* he can not authorize another to sign his name to it.' The date on which the bill of exceptioi^s was presented to the trial judge must be stated in the instrument,^ or the bill must be filed before the time allowed for presenting it has expired.' A mere indorsement on the bill of exceptions of the date of its presentation, though signed by the judge, is not suflBcient.' The bill must be signed by the judge before it is filed with the clerk or it will receive no consideration.^ § 32. Filing after being signed. — Although the judge's delay in signing and filing a bill of exceptions does not prej- udice the rights of a party who has prepared and presented a 'Travelers' Ins. Co. v. Leeds, 38 Ind. 329; section 7, ante; Ayres v. Ind. 444. Armstrong, 142 Ind. 263. ^ Bement v. May, 135 Ind. 664, 679. 'Hale v. Matthews, 118 Ind. 527, 3 Waterman v. Morgan, 114 Ind. Martin v. State, 148 Ind. 519. 237, 242. * Chicago, etc., R. Co. v. Cason, 151 * McCoy V. Able, 131Ind. 417, 421; Ind. 329; Ayres v. Armstrong, 142 Seymour, etc., Co. v. Brodhecker, 130 Ind. 263; section 7, ante; Cornell v. Ind. ,389, 392; England v. Clark, 4 Hallett, 140 Ind. 634, and cases cited. Scam! 486; Poteet v. County Commis- 'Chicago, etc., R. Co. v. Cason, 151 sioners, 30 W. Va. 58. Ind. 329; Makepeace v. Bronnenberg, ^Toledo, etc., E. Co. v. Rogers, 48 146 ind. 243; Ayres v. Armstrong, Ind. 427. 142 Ind. 263. ^Chicago, etc., R. Co. v. Cason, 151 §32 MANNER OP RESERVING EXCEPTIONS BELOW. 43 bill of exceptions within the time allowed, it is essential that the bill should be filed after it is signed/ and that the tran- script should affirmatively show that fact/ If the date of filing as shown by the record is prior to the date of signing by the judge the bills must be rejected/ because a bill of exceptions is no part of the record until it is filed.' The signing and filing of the bill of exceptions must also be shown to have been done before the clerk annexed his certificate to the transcript.' The filing should be shown by an independent record entry and can not be shown by recitals in the bill/ nor by a mere stencil file mark on one of its pages.' But when the bill is filed in vacation, that fact may be sufficiently shown by a statement in the clerk's certificate to the transcript, although no vacation entry to that effect was made in the order book.' The place where the bill must be filed is in the clerk's office or in open court,' in the county where the objectionable rul- ings were made and exceptions saved,'" notwithstanding the cause may have been transferred to another, county in the ' Makepeace v. Bronnenberg, 146 Ind. 243, 249; Ayres v. Armstrong, 142 Ind. 263; Chicago, etc., E. Co. v. Cason, 151 Ind. 329; Guirl v. Gillett, 124 Ind. 501. See Smith v. State, 143 Ind. 685. ^Drew V. Town of Geneva, 150 Ind. 662, 668; Louisville, etc., R. Co. V. Schmidt, 147 Ind. 638, 652; Shulse V. Mc Williams, 104 Ind. 512; Loy v. Loy, 90 Ind. 404. ' Windfall, etc., Co. v. Terwilliger, 152 Ind. 364. *Drew V. Town of Geneva, 150 Ind. 662, 668 ; Makepeace v. Bronnen- berg, 146 Ind. 243, 249; Louisville, etc., R. Co. V. Schmidt, 147 Ind. 638, 652. ' Jamison v. State, 13 Ind. App. 294. ^ Board, etc., v. Huffman, 134 Ind. 1, 8; Gish v. Giah, 7 Ind. App. 104; Guirl V. Gillett, 124 Ind. 501 ; Hessian V. State, 116 Ind. 58; Loy v. Loy, 90 Ind. 404; Elliott's App. Proc, §805; Lowery v. Downey, 150 Ind. 364 ; Mil- ler V. Evansville, etc., R. Co., 143 Ind. 570; Drake v. State, 145 Ind. 210; De Hart v. Board, etc., 143 Ind. 363. ' Campbell v. Bowen, — Ind. -4.pp. — , 53 N. E. Rep. 656; Shewalter v. Bergman, 132 Ind. 556; Board, etc., v. Huffman, 134 Ind. 1. «Gi8h v. Gish, 7 Ind. App. 104; Louisville, etc., R. Co. v. Terrell, 12 Ind. App. 328. 3 Wabash Paper Co. v. Webb, 146 Ind. 303; DeHart v. Board, etc., 143 Ind. 363; Miller v. Evansville, etc., R. Co., 143 Ind. 570; Drake v. State, 145 Ind. 210, 217 ; Lowery v. Downey, 150 Ind. 364, 370; Hoover v. Weesner, 147 Ind. 510, 512, and cases cited. 1" McMahan v. Spinning, 51 Ind.187, 192; Cincinnati, etc., R. Co. v. Levis- ton, 97 Ind. 488. 44 APPELLATE PRACTICE. § 33 meantime, by change of venue or otherwise. The filing of a bill of exceptions in vacation and the date of filing may prop- erly be shown by an entry or recital in the transcript at the proper place, substantially as follows: "Be it remembered that afterward, to wit, on the day of 19 — , the plaint- iff (or defendant as the case may be) filed in the clerk's office the following bill of exceptions, in words and figures as fol- lows:" The bill should then follow or appear as ntear as practicable immediately after this recital.' The computation of time for presenting bills of exceptions is governed by the statute,^ which provides that the first day, or that on which time was given, shall be excluded, and the last day, or that on which the bill is presented for the judge's signature, shall be included.' But if the last day be Sunday, it s-hall be ex- cluded.' Where it does not appear that any necessity or emergency existed for presenting or signing a bill of excep- tions on Sunday, the signing of such a bill on that day will be held unlawful. ° § 38. Allowance of time for filing. — The statute provides, both in civiP and in criminal' cases, that the court may allow a party taking an exception time within which to reduce the exception to writing. ° The time which may be allowed in civil cases is not expressly limited by the statute, though it has been said by the supreme court that such time should be definite and reasonable.^ But in criminal cases the statute exprpssly limits the time that may be allowed for presenting the bill of exceptions for the judge's signature to not more than sixty days from the time judgment is rendered." Where the court erroneously made an order in a criminal proceeding allowing 1 Miller v. Evansville, etc., R. Co., ^R. S. 1894, § 638. 143 Ind. 570. ' R. S. 1894, § 1916. ' R. S. 1894, § 1304. * R. S. 1894, §§ 638, 1916.'j ^Statev. Thorn, 28 Ind. 306; Baker 'Lansing v. Coats, 18 Ind. 166; V. Arctic Ditchers, 54 Ind. 310, 313; Simonton v. Huntington, etc., Co., 12 Backer v. Pyne, 130 Ind. 288, 295. Ind. 380; Logansport, etc., Co. v. Da- «R. S. 1894, § 1304. vidson, 51 Ind. 472, 474; Cincinnati, = Roberts v. Farmers' etc., Bank, etc., R. Co. v. Leviston, 97 Ind. 488. 136 Ind. 154. " R. S. 1894, § 1916, § 33 MANNER OF RESERVING EXCEPTIONS BELOW. 45 ninety days in which to file a bill of exceptions, it was held that the order was only void as to the excess over the statutory allowance of sixty days, and that a bill of exceptions filed within the latter period was a part of the record/ But if a bill is filed after the expiration of sixty days from the rendition of judgment it must be disregarded, though filed with the assent and approval of the court.'' In criminal cases the time to file a bill of exceptions must be granted at or before the rendition of judgment.' Leave asked and obtained after the judgment was rendered was held to give no right to file a bill of exceptions,' because the statute only gives the judge power to grant such leave at the time of the trial,* and the trial is terminated by the entry of final judgment.^ It has been held that the judgment in a crim- nal case can not be deemed a final judgment while a motion for a new trial filed at the term at which it was rendered ' remains undisposed of,* and where such a motion is duly filed, a bill of exceptions filed at the time it is overruled will form a part of the record. ° But the court has no authority to grant additional time for filing a bill of exceptions, on overruling a motion for a new trial in such a case made after judgment was rendered ." In civil cases the order extending the time for filing a bill of excep- tions must be made at the term when the trial is had," except where a motion for a new trial is filed within the time allowed by the statute,'* in which case time for reducing exceptions taken at the trial to writing may be given when the motion for a new trial is overruled." But even then exceptions to rul- ' State V. Hunt, 137 Ind. 537 ; Hoch ' R. S. 1894, § 1911. V. State, 20 Ind. App. 64. ' Calvert v. State, 91 Ind. 473 ; Fehn 2 Hoch V. State, 20 Ind. App. 64; v. State, 3 Ind. App. 568. Houston V. State, 15 Ind. App. 424. ' Calvert v. State, 91 Ind. 473 ; Fehn s Hunter v. State, 101 Ind. 406; v. State, 3 Ind. App. 568. Bruce v. State, 87 Ind. 450; Jenks v. " Bruce v. State, 141 Ind. 464. State, 39 Ind. 1. " Hancher v. Stephenson, 147 Ind. * Bruce v. State, 141 Ind. 464 ; Guen- 498 ; Elliott's App. Proc, § 800. ther V. State, 141 Ind. 593. ^' R. S. 1894, § 570. 5R. S. 1894, § 1916. " R. S. 1894, § 638. 8 Hunter v. State, 101 Ind. 406 ; Bar- naby v. State, 106 Ind. 539. 46 APPELLATE PRACTICE. § 34 ings not made in the course of the trial are not carried forward beyond the term at which they were made.' ' It is said that the parties to a civil action may by agreement extend the time for filing a bill of exceptions beyond the time designated in the order of the court.'' But an agreement to that effect was held not to extend the time within which a bill of exceptions must be presented for the judge's signature.' The court can not, after the close of the term, extend the time for filing a bill of exceptions;' but where such an extension of time was given, and the adverse party was present, but made no objection and saved no exception, the supreme court ex- pressed the opinion that by his silence and failure to object at the proper time, he acquiesced in and tacitly consented to such extension of time.' The effect of such an agreement in a crim- inal case has not been determined, 'except that the prosecuting attorney has no power by agreement to extend the time beyond the sixty days which the statute permits the trial judge to al- low.^ The fact that time was given beyond the term in which to file a bill of exceptions must be shown by an order-book entry made when such time was granted and can not be shown by a recital in the bill of exceptions.' Where it does not ap- pear that time was properly given, a bill signed and filed after the close of the term is no part of the record.* § 34. Effect of recitals in bill of exceptions. — It is a general rule of appellate practice that the statements in a bill of ex- ceptions as to matters which do not form a part of the record, without special action to make them so, import absolute 1 Smith V. Flack, 95 Ind. 116; = Sweetser v. McCrea, 97 Ind. 404. Thomas v. Griffin, 1 Ind. App. 457; « Hartley v. State,lll Ind. 358; EUi- Boyce v. Graham, 91 Ind. 420; Be- ott's App. Proc, § 803. ment v. May, 135 Ind. 665, 675, and ' Eobards v. State, 152 Ind. 294 authorities cited. Hancher v. Stephenson, 147 Ind. 498 " Lotz V. Briggs, 50 Ind. 346. See Engleman v. Arnold, 118 Ind. 81 Sweetser v. McCrea, 97 Ind. 404. Benson v. Baldwin, 108 Ind. 106 ' Ryan V. State, 6 Ind. App. 196. See Shoonover v. Reed, 65 Ind. 313 Trentman v. Swartzell, 85 Ind. 443. Jones v. Jones, 91 Ind. 72. «Trentmanv. Swartzell, 85Ind. 443; "Campton v.' State, 140 Ind. 442; Northcutt V. Buckles, 60 Ind. 577; Johnson v. Ballard, 148 Ind. 181; Wilson V. Vance, 55 Ind. 394. Hancher v. Stephenson, 147 Ind. 498. § 34 MANNER OF RESERVING EXCEPTIONS BELOW. 47 verity,' and can not be contradicted in any manner in the su- preme court.* If there is any discrepancy between the state- ments as to such matters in the bill of exceptions and in the record entry made by the clerk, the bill of exceptions will control.' This is so for the reason that the law assumes the bill of exceptions to be a special instrument which brings the facts distinctly to the attention of the judge who signs it, while the order-book entries are kept by the clerk.' Even an agreement of the parties as to the facts can have no force in an appellate tribunal by way of contradicting the statements in a bill of exceptions.' But it is only in a matter which may properly be shown by bill of exceptions that the recitals in such a bill will control. Thus, a recital as to the day on which a bill of exceptions was presented for the judge's signature' must be taken as correct, but a general statement that the bill of exceptions was presented within the time al- lowed will be disregarded.' And other matters which the law requires shall be established by recitals in the order-book en- tries,* such as that leave to file a bill of exceptions after the close of the term was given,' or that the bill of exceptions was filed in the clerk's office and the date of filing, can not be shown by statements in the bill itself," whether such facts were stated differently in the order-book entries," or were wholly omitted from such entries. Statements in the bill of 1 Blair v. Carry, 150 Ind. 99, 104, ^r g ^gg^^ § 641; McCoy v. Able, 106; Davis v. Union Trust Co., 150 131 Ind. 417, 420; Gish v. Gish, 7 Ind. Ind. 46, 49; Thames, etc., Co. v. Be- App. 104, 109. ville, 100 Ind. 309; Walls v. Ander- ' Wood v. Ohio Falls Car Co., 136 son, etc., E. Co., 60 Ind. 56; Beavers Ind. 598, 601; Orton v. Tilden, 110 V. State, 58 Ind. 530. Ind. 131, 139. 2 Blair v. Curry, 150 Ind. 99, 104; 'Q^ay v. Singer, 137 Ind. 257. Thames, etc., Co. v. Beville, 100 Ind. 'Shoonover v. Eeed, 65 Ind. 313; 309 ; Beavers v. State, 58 Ind. 530. Hancher v. Stephenson, 147 Ind. 498. SAlleyv. State, 76 Ind. 94; Indiana, "Gray v. Singer, 137 Ind. 257; etc., R. Co. V. Adams, 112 Ind. 302; Board of Commissioners v. Huffman, Blair v. Curry, 150 Ind. 99, 104; sec- 134 Ind. 1; Prather v. Prather, 139 tion 25, a)Ue. Ind. 570; Miller v. Evansville, etc., 'State V. Flemons, 6 Ind. 279; El- R. Co., 143 Ind. 570; Drake v. State, liott's App. Proc, §811. 145 Ind 210. = Dqvis V. Union Trust Co., 150 Ind. " Gray v. Singer, 137 Ind. 257. 46; Burdick v. Hunt, 43 Ind. 381. 48 APPELLATE PRACTICE. § 35 exceptions must also be disregarded where the bill itself shows that they are not true. Thus, a recital at the end of the evidence set out in the bill that "this was all the evidence given in the cause" does not control where the bill of exceptions shows that certain evidence was given which is not contained in it.' But such a recital will be effective and controlling unless the bill itself unequivocally shows that omitted evidence was intro- duced.^ § 35. Manner of making evidence part of the record by bill of exceptions. — Of course the evidence may be made a part of the record like any other matters by reciting all of it, or the desired portion, and having the judge affix his certificate and signature, showing what is incorporated in the bill, and then having this bill of exceptions copied into the transcript in the same manner as other papers in the cause.^ But all bills of exceptions which are not prepared under the special provis- ions of the statute must be transcribed by the clerk in order to bring them before the supreme or appellate court on ap- peal,* and if the original papers themselves are certified up as part of the record they will be disregarded. ° There have long been special statutory provisions, however, for certifying up on appeal the evidence as originally written out, and thus avoiding the labor and expense of copying it. A great deal of learning as to the necessity for filing in the clerk's ofiBce the reporter's original long-hand manuscript of the evidence, be- fore causing it to be incorporated in a bill of exceptions, ° as required by the statute providing for the appointment of offi- ^ Pittsburgh, etc., E. Co. V. NoftsgSr, 115; Madden v. State, 148 Ind. 183; 148 Ind. 101, 110; Chicago, etc., Ter- Wantland v. State, 145 Ind. 38. minal E. Co. v. Eggers, 147 Ind. 299; *E. S. 1894, §§ 661, 662; Holt v. Hoover v. Weesner, 147 Ind. 510; Eockhill, 143 Ind. 530; Leach v. Mat^ Eoyse v. Bourne, 149 Ind. 187, 191 ; tix, 149 Ind. 146 ; Wantland v. State, Gish V. Gish, 7 Ind. App. 104, 113; 145 Ind. 38; MoCoy v. Able, 131 Ind. Smith V. Walker, 7 Ind. App. 614, 417. 619. 'Holt V. Eockhill, 143 Ind. 530; 2 Vermillion v. Nelson, 87 Ind 194; Leach v. Mattix, 149 Ind. 146. Elliott's App. Proc, § 824. ^gn^jtii y. state, 145 Ind. 176, 182; 'Starnea v. Allen, 151 Ind. 108, Davis v. Union Trust Co., 150 Ind. 46. § 35 MANNER OF RESERVING EXCEPTIONS BELOW. 49 cial reporters/ was rendered valueless by the repeal of so much of the statute as required such filing/ by a law passed in 1897.' The statute was not repealed, except so far as a method of bringing the evidence into the record without complying with its provisions is given. It was provided that to make the evidence and all rulings of the court in respect to the admis- sion and rejection of evidence and the competency of wit- nesses, and the objections and exceptions thereto in any civil or criminal cause, a part of the record on appeal to the supreme or appellate court, it shall be sufficient if the transcript contain the original bill of exceptions, embracing all such evidence, including that which is oral, documentary and by depositions offered and heard in such cause, and all such rulings, objec- tions and exceptions, provided that it shall appear from the exceptions that such bill was presented to the proper judge of the trial court for settlement and signature within the time permitted by law and that allowed by the court, and that the same was signed by the judge and filed with the clerk of said trial court or in open court.' That act made it the duty of the clerk of any trial court when requested to do so by the party appealing to embrace in the transcript such original bill of exceptions instead of a copy thereof. ° Notwithstanding the passage of an act concerning the appointment of short-hand reporters*, this law is still in force. To make the evidence a part of the record under the act above recited it is sufficient if the transcript contains the original bill of exceptions embracing such evidence, if it appears from the record that such bill was presented to the judge within the time allowed, approved and signed by him and filed with the clerk of the trial court or in open court.' It is wholly imma- 'Acts 1873, page 194; R. S. 1894, < Burns' Supp., 1897, § 638a. § 1476, was held to be unconstitu- = Burns' Supp., 1897, § 638a. tional; Smith v. State, 145 Ind.'l76, ^Acts 1899, p. 384. 182; Beattyv. Miller, 146 Ind. 231. 'Weakley v. Wolf, 148 Ind. 208, 2 Burns' Supp., 1897, § 638a. 215; Stevens Store Co. v. Hammond, 'Burns' Supp,, 1897, § 638a. — Ind. App. — , 51 N. E. Rep. 506; 4 — App. Practice. 50 APPELLATE PRACTICE. § 35 terial in what form or by whom the evidence is written, pro- vided only it is embraced and certified to in a proper bill of ex- ceptions.' This act, however, gives no authority to certify up to the supreme or appellate court an original bill of exceptions so as to make anything a part of the record which is incorpo- rated in such bill, except the evidence and its incidents.^ But the mere presence in the bill of other matters beside the evi- dence will not render it insufficient as an original bill of ex- ceptions containing the evidence where it was otherwise prop- erly prepared and duly filed.' Where, however, the record does not purport to contain the original bill of exceptions, but the clerk's certificate is to the effect that the transcript contains a copy of all records and papers in the cause,' that statement will be taken as true, and counsel will not be heard to assert that the bill of exceptions in the record, in fact, is the original bill.' A still later act of the legislature ° seems to have been an attempt to provide for making the evidence a part of the record on appeal without a formal bill of ex- ceptions. After providing for the appointment and qual- ification of an ofl&cial reporter to take 'down in short-hand the oral evidence given at the trial, and the making by him of a transcript in long-hand or typewriting of all or any part of the evidence, both oral and documentary, with the rulings of the judge thereon and objections and exceptions thereto, it provides as follows: The reporter shall certify that the tran- script contains all the evidence given in the cause. He shall then file the transcript with the clerk of the court wherein said cause was tried within a time to be fixed by the court trying' National Exchange Bank v. Berry, 21 Madden v. State, 148 Ind. 183 ; Want- Ind. App. 261 ; Hanger v. Beuna, land v. State, 145 Ind. 38. Ind. — , 53 N. E. Eep. 942. = Wantland v. State, 145 Ind. 38; 1 Weakley v. Wolf, 148 Ind. 208, Gaar, Scott & Co. v. Wilson, 21 Ind. 215 ; Hanger v. Beuna, — Ind. , App. 91 ; Starnes v. Allen, 151 Ind. 53 N. E. Rep. 942. 108, 115. The clerk might be re- ' Leach v. Mattix, 149 Ind. 146. quired to amend his certificate so as "City of New Albany v. Lines, 21 to show whether the original bill of Ind. App. 380. exceptions or a copy had been cer- « Starnes v. Allen, 151 Ind. 108, 115 ; tifled. Section 117, post. « Acts 1899, page 384. § 35 MANNER OF RESERVING EXCEPTIONS BELOW. 51 such cause. The judge of that court shall thereupon attach to the transcript of the evidence so filed by such reporter a cer- tificate that the same is correct and contains all the evidence, and the clerk shall incorporate such transcript of the evidence and the certificate signed by such judge in the transcript of said cause, and state in his certificate that the same is the transcript of the evidence filed by such reporter and that the certificate attached is that of the judge, with the date when the same was filed in his oflfice.' It is declared "that said tran- script and record when so prepared shall be sufficient to pre- sent to the consideration of the supreme or appellate court in the determination of the questions presented to the lower court trying such cause. "^ .Just what it shall be sufficient to pre- sent to the consideration of the supreme or appellate court is not stated. This act, so far as it may be deemed to require that the trial judge shall sign a certificate that the copy of the evi- dence as filed by the short-hand reporter contains all the evi- dence, etc., is clearly invalid, for the reason that the settle- ment of a bill of exceptions is a judicial act,' and only the judge can determine whether the manuscript copy of the evidence filed by the reporter is correct and contains all the evidence. Tlie power of determining whether the bill contains all the- evidence can not be delegated to the short-hand reporter nor to any other person.* The judge alone must determine this question. When he has determined that all the evidence is con- tained in the bill submitted to him, he may sign a certificate to that effect and- not before. Where it is attempted to make oral evidence a part of the record by bill of exceptions it must be incorporated in the bill before that is signed by the judge. ° A mere reference to the evidence in a bill of exceptions as "filed herewith" is insufl5cient,^ nor does merely attaching the stenographer's report of the evidence to the bill of exceptions ' Acta 1899, p. 384. Wagoner v. Wilson, 108 Ind. 210; 2 Acts 1899, p. 384. Fiscns v. Turner, 125 Ind. 46; Garrett ' Section 31, ante. v. State, 149 Ind. 264; State v. Lnse, * Seymour, etc., Co. v. Brodhecker, — Ind. — , 58 N. E. Rep. 459. 130 Ind. 389, 392; section 31, ante. « State v. Luse, — Ind. — , 53 N. 5 Cluck V. State, 40 Ind. 263, 269; E. Rep. 459. 52 APPELLATE PRACTICE. § 35 before it is signed by the judge, and referring to it therein, make the evidence a part of the record.' The statute provides that it shall not be necessary to copy a written instrument or documentary evidence into a bill of exceptions, but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words "here insert,"^ but in construing this statute the courts have held that the words "written instru- ment and documentary evidence" had reference to such instru- ments as were the foundation of the action, or exhibits filed with the pleadings, and to depositions and documents used as evidence,' and that the notes of the reporter appointed by the court to take down the evidence can not be regarded as docu- mentary evidence.* Even where the evidence is entirelydocu- mentary it can only be brought into the record without copying it into the bill of exceptions by a strict compliance with the statute,' and any written instrument which is sought to be made a part of the record in this manner must be so clearly identified by statements in the bill of exceptions that there can be no doubt as to just what instrument was intended. The statute provides for reserving a question of law for con- sideration by the supreme court on a special bill of exceptions to be so made that it will distinctly and briefly embrace so much of the record of the cause only and the statement of the court as will enable the supreme court to apprehend the par- ticular question involved.* Under this statute a question as to the competency of a witness,' or any other independent and distinct ruling on the evidence, may be reserved without incor- porating all the evidence in the bill of exceptions, provided so much of the evidence is given as will enable the supreme court to clearly apprehend the particular question involved.' ' Patterson v. Churchman, 122 Ind. ' Patterson v. Churchman, 122 Ind. 379. 379, 390. 2 R. S. 1894, § 638. « R. S. 1894, § 642. 'Cluck V. State, 40 Ind, 263, 269; 'Smith v. James, 131 Ind. 131. Straiten v. Kennard, 74 Ind. 302 ; Pat- ' Smith v. James, 131 Ind. 131 ; Con- terson v. Churchman, 122 Ind. 379, ner v. Town of Marion, 112 Ind. 517; 388. Indiana, etc., R. Co. v. Adams, 112 « Patterson v. Churchman, 122 Ind. Ind. 302. 379, 388. § 36 MANNER OF KESEEVING EXCEPTIONS BELOW. 53 But it is only questions of law which can be reserved under this statute, and questions of fact, or of mixed law and fact, will not be considered on appeal unless the record contains all the evidence.' § 36. Manner of reserving exception by order of court. — As was stated above, motions, affidavits and other papers in a cause, when they relate to collateral matters, and depositions and papers filed as evidence, may be made a part of the record by order of court. ^ But the provision of the statute authoriz- ing extrinsic matter to be made part of the record by order of court is confined exclusively to papers and documents,' and nothing else can be brought into the record in that manner. It is not sufficient, in order to bring a paper or document into the record under this provision, to have the court enter a general order designating it by name. Matter which is not already a part of the record must be set forth at length in the order of court by which it is sought to be made so.' There is no authority for making extrinsic matter a part of an order of court by the direction "here insert," as is permitted in case of a bill of exceptions.^ In addition to the matter itself, the order must contain such a statement as will designate clearly what is intended to be made a part of the record. ° For ex- ample, instructions may be made a part of the record by an order of cdurt in which they are fully set out. But a record entry to the eSect that all the instructions to the jury are now filed and ordered to be made a part of the record will not bring into the record the instructions requested by the appellant and refused by the court, although they are copied into the order along with the instructions that were given to the jury,' be- iWoodard v. Baker, 116 Ind. 152; = Close v. Pittsburgh, etc., R. Co., Haney v. Farnsworth, 149 Ind. 453. 150 Ind. 560, 563. 2Section27, ante; R. S. 1894, § 662. « Russv. Russ, 142Ind. 471 ; Close v.. 3 Russ V. Russ, 142 Ind. 471, 474. Pittsburgh, etc., R. Co., 150-Ind. 560,, « Close V. Pittsburgh, etc., R. Co., 562. 150 Ind. 560. 'Pennsylvania Co. v. Ebaugh, 152 Ind. 531. 54 APPELLATE PRACTICE. § 37 cause such instructions can not properly be termed "instruc- tions to the jury."' The only advantage that can be gained by making use of an order of court rather than a bill of exceptions to bring ex- trinsic matters into the record is that the trouble of writing out the bill and presenting it to the judge for his signature and filing it may be avoided, and the clerk required tp do what must otherwise be done by the attorney.^ The provision as to bringing matters into the record by an order of court has no application to appeals in criminal cases.' § 37. Amendment of bill of exceptions. — While a bill of exceptions imports absolute verity and its statements can not be contradicted in the supreme court, an erroneous state- ment therein is not necessarily fatal to the rights of the party against whom the error is committed. Like any other part of the record, a bill of exceptions may be amended by the trial court on proper application, so as to make it speak the truth.' The correction in the bill of exceptions may then be brought up to the court in which the appeal is pending by a writ of certiorari,^ when it will supersede the erroneous rec- ord. But a correction will not be made by the trial court un- less there is some memorandum, memorial paper, record, or other minute of the transaction to amend by, of a date prior to, or at least of equal date with the bill of exceptions. ° Notice of the proposed application for a correction is neces- sary,' but such notice may be served on the opposite party's iPort Huron, etc., Co. v. Smith, 21 73 Ind. 465; Morgan v. Hays, 91 Ind. Ind. App. 233. ' 132. 'Close V. Pittsburgh, etc., E. Co., = Driver v. Driver, — Ind. — , 54 150 Ind. 560. N. E. Eep. 389 ; Harris v. Tomlinson, 3 Bealer v. State, 150 Ind. 390 ; Gray- 130 Ind. 426, 429 ; Hannah v. Dorrell, beal V. State, 145 Ind. 623 ; Reynolds 73 Ind. 465, 467. V. State, 147 Ind. 3, 12; Chandler v. ' >= Morgan v. Hays, 91 Ind. 132; State, 141 Ind. 106-109 ; Lane v. State, Driver v. Driver, — Ind. — , 54 N. E. 151 Ind. 511. Eep. 389; Seig v. Long, 72 Ind. 18; 'Driver v. Driver, — Ind. — , 54 Hamilton v. Burch^28 Ind. 233. N. E. Eep. 389 ; Harris v. Tomlinson, ' Elliott's App. Proc, § 826. 130 Ind. 426, 430 ; Hannah v. Dorrell, § 37 MANNER OF RESERVING EXCEPTIONS BELOW. 55 attorney/ and need only be given for such a reasonable time as will give that party an opportunity to make needful prepa- rations for defending the application/ The fact that the party making the application obtained the erroneous bill of excep- tions, and was' therefore responsible for the errors it contains, may be a reason for a closer scrutiny of the evidence showing that he was not guilty of negligence which deprived him of the right to have the record corrected, but is not of itself a suf- ficient reason for refusing to make the correction where he was not negligent.' The rule that courts will not grant relief where the party applying has been guilty of (inexcusable negligence or delay applies to applications of this character.* 'Driver v. Driver, — Ind. — , 52 it was decided a second time. 54 N. N. E. Eep. 401. E. Eep. 389. * Judge Howard, in Driver V. Driver, 'Harrisv. Tomlinson, 130 Ind. 426, — Ind. — , 52 N. E. Eep. 401. A re- 431. hearing was granted in this case and * Elliott's App. Proc, § 825, CHAPTER 4. PRESENTATION OF OBJECTIONS TO THE TRIAL COURT. § 38. For what errors the judgment 47. Same — Excessive damages. may be attacked for the first 48. Same — Recovery too large or time on appeal. too small. 39. What errors need not be re- 49. Same — Misconduct of party or viewed by motion for new counsel. trial. 50. Form of motion for new trial. 40. What classes of errors are causes 51. Enumeration of causes in mo- tor a new trial. tion for new trial. 41. Same — Irregularity in proceed- 52. Affidavits in support of motion ings. for new trial. 42. Same — Accident or surprise. 53. Time and manner of filing mo- 43. Same— Misconduct of jury. tion for new trial. 44. Same — Error of law. 54. Saving exception when motion 45. Same — Newly-discovered evi- for new trial is overruled. dence. 55. Effect of sustaining motion for 46. Same — ^Verdict not supported new trial. by the evidence. § 38. For what errors the judgment may be attacked for the first time on appeal. — It is a general rule that objections not presented to the trial court vpill not be available to reverse its judgment on appeal.' But the statute excepts from the ob- jections which shall be deemed to have been waived by a fail- ure to present them to the trial court, objections to the juris- diction of the court over the subject of the action, and the objection that the complaint does not state facts sufBcient to constitute a cause of action.^ Under this provision of the statute it has uniformly been held that either of these objec- tions may be presented for the first time by an assignment of error in the supreme or appellate court.' The proper, form of 1 Elliott's App. Proc, § 470, and ^ R. S. 1894, § 346. cases cited; section 7, ante; section 24, ante. (56) § 38 PRESENTATION OF OBJECTIONS. 57 an assignment of errors by which to question the sufficiency of a complaint is that " the complaint does not state facts suf- ficient to constitute, a cause of action.'" But other forms of assignment having substantially the same meaning have been held sufficient.* All other objections to the complaint, such as a defect of parties/ or any other defect which might render the complaint insufficient to withstand an attack in the court below, will be deemed to have been waived, unless an objec- tion has been properly taken by demurrer or answer,* and an exception saved to the ruling of the trial court.' The com- plaint can only be attacked by an assignment of errors on appeal as a whole. ° An assignment that ' a single paragraph of the complaint does not state facts sufficient to constitute a cause of action presents no question,' and the complaint will withstand a gen- eral assignment of error in the proper form if any paragraph considered separately is good.' "When a complaint is attacked for the first time by an assignment of errors on appeal, it will be held sufficient unless some fact essential to the cause of ac- tion has been wholly omitted.' It has frequently been de- clared that when the sufficiency of a complaint is tested for the first time in this manner it will be held sufficient if it 'Contains facts enough to bar another action." But this should ' Hornaday V. Shields, 119 Ind. 201, Ind. 376; Louisville, etc., E. Co. v. 203. Peck, 99 Ind. 68. 2 Hoke V. Applegate, 92 Ind. 570; 'Hatchings v. Hay, 132 Ind. 869; Higgins V. Kendall, 73 Ind. 522. Board v.Tichenor, 129 Ind. 562; Lou- ' Hays V.Walker, 90 Ind. 105 ; Bundy isville, etc., R. Co. v. Ader, 110 Ind. V. Pool, 82 Ind. 502 ; Atkinson V. Mott, 376; Louisville, etc., E. Co. v. Peck, 102 Ind. 431, 484; Lee v. Basey, 85 99 Ind. 68; Hoke v. Applegate, 92 Ind. 543. Ind. 570. * E. S. 1894, § 346. ^ McGregor v. Hubbs, 125 Ind. 487; ' Section 24, ante. Du Souchet v. Butcher, 113 Ind. 249; « Hatchings v. Hay, 132 Ind. 869; Taylor v. Johnson, 118 Ind. 164; Lav- Board of Commissioners v. Tichenor, erty v. State, 109 Ind. 217 ; Smith v. 129 Ind. 562; Ashton v. Shepherd, 120 Smith, 106 Ind. 48. Ind. 69; Branch v. Faust, 115 Ind. "Xenia, etc., Co. v. Maoy, 147Ind. 464. 568, 572 ; Citizens', etc., R. Co. v. Wil- ' Ashton V. Shepherd, 120 Ind. 69; loeby, 134 Ind. 563; Loeb v. Tinkler, Louisville, etc., E. Co. v. Ader, 110 124 Ind. 381 ; Old v. Mohler, 122 Ind. •58 APPELLATE PRACTICE. § 38 be understood to mean that there has not been an entire failure to aver any fact which must exist in order that the plaintiff may have a cause of action.' The sufficiency of a counter claim/ or of a cross-complaint/ may be ques- tiqned by an assignment of errors in the same manner as a complaint; but the sufficiency of an answer,* or a reply/ can not be questioned in this manner. That the court below had no jurisdiction of the subject-matter of the action may also be assigned as error, although no objection to its juris- diction was taken in the trial court. ° But by jurisdiction of the subject-matter is meant jurisdiction of the class of cases to which the particular case belongs,' and the jurisdiction of the court over the particular case in which the appeal was taken as distinguished from others of the same class can not be attacked in this manner.' To the above exceptions created by the statute, the courts have added the lack of jurisdiction over the person of the appellant because of an entire failure to serve him with any legal notice and permit a judgment to be attacked on appeal for this cause.' But it is only where there is such an entire failure to acquire jurisdiction over the person of the appellant as to make the judgment void that such lack of ju- risdiction may be assigned as error on appeal. Where the 594; McOreery v. Nordyke, — Ind. Life Ins. Co., — Ind. —,64 N. E. App. — , 53 N. E. Eep. 849. Rep. 442. 'Eeed v. Browning, 130 Ind. 575; 'McCoy v. Able, 131 Ind. 417, 420; Eberhart v. Reister, 96 Ind. 478, 480 ; Chicago, etc., B. Co. v. Sutton, 130 Taylor v. Johnson, 113 Ind. 164; Man- Ind. 405, 410; Alexander v. Gill, 130 sur V. Straight, 103 Ind. 358 ; Western Ind. 485. Assn. Co. V. Koontz, 17 Ind. App. 54; * See Perkins v. Hayward, 132 Ind. Metropolitan Ins. Co. v. McCormick, 95, 104; McCoy v. Able, 131 Ind. 417, 19 Ind. App. 49. 420. 2 McCormick, etc., Co. v. Gray, 114 ' Shoemaker v. Board, 36 Ind. 175, Ind. 340. 180 ; Cochnower v. Cochnower, 27 Ind ' Loeb V. Tinkler, 124 Ind. 331. 253; Kyle v. Kyle, 55 Ind. 387, 390 ♦Chicago, etc., R. Co. v. Modesitt, Bristor v. Galvin, 62 Ind. 352, 858 124 Ind. 212. Roy v. Rowe, 90 Ind. 54; Beckett v^ = Hon V. State, 89 Ind. 249. State, 4 Ind. App. 136; Mover v ^Boys V. Simmons, 72 Ind. 593; Bucks, 2 Ind. App. 571. See McKin- Harris v. Harris, 61 Ind. 117; Mc- ney v. Frankfort, etc., R. Co., 140 Goldrick v. Slevin, 43 Ind. 522; Riley Ind. 95. V. Butler, 36 Ind. 51 ; Lowery v. State § 39 PRESENTATION OF OBJECTIONS. 59 summons or service thereof was merely defective, and the defendant suffered default in the trial court, he should first apply to that court to be relieved from the default, and then appeal from its ruling in case of a refusal to grant him relief.' § 39. What errors need not be reviewed by motion for new trial. — The reasons for which a new trial may be granted are fixed by statute both in civiP and in criminal cases,' but there are many rulings made by the court both before and after the trial, the errors in which could not be corrected by a new trial if one were granted. Thus, errors in rulings on the pleadings,' such as sustaining or overruling a demurrer to a complaint, answer or reply,' sustaining or overruling a motion to make the complaint more specific,^ or to strike out a plead- ing or part of a pleading,' or rulings on interrogatories pro- pounded to the parties,' must be separately assigned as error, because all such rulings precede the trial and are made by way of preparation for it. Also the ruling on a motion for judg- ment on the verdict,' or judgment on the special answers to interrogatories returned with the verdict," or the ruling on a motion in arrest of judgment," or on a motion to modify the judgment," must be separately assigned as error because such rulings are necessarily made after the trial has ended by the 1 Elliott's App. Proc, §§330, 331, Ind. 206; Bement v. May, 135 Ind. 332. 664, 675. 2 R. S. 1894, § 568. s o^tes v. Thayer, 93 Ind. 156. s E. S. 1894, § 1911. 5 Cincinnati, etc., E. Co. v. Cregor, * Patterson V. Scottiah, etc.,Co.,107 150 Ind. 625; Hoppes v. Chapin, 15 Ind. 497; Standard Oil Co. v. Bow- Ind. App. 258. ker, 141 Ind. 12; Bement v. May, 135 " Ohio, etc., E. Co. v. Heaton, 137 Ind. 664, 675. and authorities cited; Ind. 1. See Cincinnati, etc., E. Co. Leiter v. Jackson, 8 Ind. App. 98. v. Cregor, 150 Ind. 625. ^Hunter v. Fitzmaurice, 102 Ind. " Woodworth v. State,145 Ind. 276; 449; Glendy v. Lanning, 68 Ind. 142; State v. Arnold, 144 Ind. 651, 657. A Tucker v. Call, 45 Ind, 31 ; Hardison motion in arrest of judgment should V. Mann, 20 Ind. App. 404. be in writing. Chandler v. State, 141 6 Bement v. May,' 135 Ind. 664, 675 ; Ind. 106 ; E. S. 1894, § 1912. Standard Oil Co. v. Bpwker, 141 Ind. " Euss v. Euss, 142 Ind. 471 ; Scanlin 12. V. Stewart, 138 Ind. 574. ' City of New Albany v. White, 100 60 APPELLATE PRACTICE. § 40 return of the verdict or finding. For the same reasons the conclusions of law stated by the court on its special findings must be questioned by an assignment of errors and not by a specification in the motion for a new trial/ and the court even permits matters which ordinarily constitute causes for a new trial to be separately assigned as error where there is no oppor- tunity to present the question by a motion for a new trial/ but not otherwise. Of course it is necessary in all cases that a proper exception shall have been taken to the ruling of the trial court which is assigned as error.' § 40. What classes of errors are causes for a new trial. — It is only for some one or more of the reasons named in the statute' that a new trial may be granted.' The statutory causes for a new trial in civil cases are eight in number/ while in criminal cases new trials are allowed for causes enumerated under nine different specifications.' § 41. Same — Irregularity in proceedings. — Irregularity in the proceedings of the court, or abuse of discretion, by which the complaining party in a civil case or the defendant in a criminal case was prevented from having a fair trial, is the first reason under both statutes. It has been held that the errone- ous action of the court on an application for a continuance is cause for a new trial under this provision, both in civil' and criminal cases / also an erroneous ruling on a motion to sup- press depositions comes within- this clause of the statutes, al- ' Midland E. Co. v. Dickason, 130 belts v. 0'Connell,66 Ind. 171; Gates Ind. 164; Smith v. McKean, 99 Ind. v. Thayer, 93 Ind. 156; Einggenberg 101; Smith v. James, 131 Ind. 131; v. Hartman, 102 Ind. 537; National Eoyse v. Bourne, 149 Ind. 187; Evans- Bank, etc., Co. v. Dunn, 106 Ind. 110. ville, etc., E. Co. v. State, 149 Ind. «E. S. 1894, § 568. 276. ' E. S. 1894, § 1911. 2 Shoemaker v. Smith, 74 Ind. 71 ; ' Kent v. Lawson, 12 Ind. 675 ; Carr Evans v. State, 58 Ind. 587; McAllis- v. Eaton, 42 Ind. 385; Westerfleld v. ter v. Willey, 60 Ind. 195 ; Elliott's Spencer, 61 Ind. 339. App. Proc, § 349. 'Ostler v. State, 3 Ind. App. 122; ' Section 24, ante. Sturm v. State, 74 Ind. 278, was de- 4 E. S. 1894, § 568 ; E. S. 1894, § 1911 . cided under a former statute. 5 Tyler v. Bowlus, 54 Ind. 333 ; Tib- § 42 PRESENTATION OF OBJECTIONS. 61 though made before the trial was actually begun.' The failure to arraign the defendant and have him plead is cause for a new trial under this specification in a criminal case;^ and the defendant may be entitled to a new trial because of the court's refusal to restrain improper conduct on the part of counsel for the state/ provided objection was duly made and a proper exception reserved.* § 42. Same — Accident or surprise. — Accident or surprise, which ordinary prudence could not have guarded against, is also a statutory cause for a new trial in both classes of cases. But surprise at the introduction of legitimate evidence under the issues is not such legal surprise as will entitle a party to a new trial, ^ even though the adversary's witness had previously made an unsworn statement that he intended to testify differ- ently.* But where a party has been misled by a statement of his own witness as to what his testimony will be,' or by a state- ment of his adversary that certain matters will not be contro- verted at the trial," he may be entitled to a new trial on the ground of surprise, provided he was not guilty of negligence in relying on such statements;' for a party is bound to use dil- igence to learn what the testimony will be, or he can not claim surprise when it is given." § 43. Same — Misconduct of Jury. — Any misconduct of the jury tending to prevent a fair and due consideration of the •case is also a cause for a new trial in both classes of cases. ' Jeffersonville, etc., E.Co. v. Eiley, v. State, 94 Ind. 489; Helm v. Bank, 39 Ind. 568; Burnett v. Milnes, 148 91 Ind. 44; Sullivan v. O'Conner, 77 Ind. 230, 236. Ind. 149; Peck v. Hensley, 21 Ind. ^Shoffner v. State, 93 Ind. 519. 344. 'Drew V. State, 124 Ind. 9; Grubb * Pittsburgh, etc., R. Co. v. Sponier, V. State, 117 Ind. 277; Jackson v. 85 Ind. 165, 172. State, 116 Ind. 464; Norton v. State, 'Todd v. State, 25 Ind. 212. 106 Ind. 163; Brow v. State, 103 Ind. ^Haynes v. State, 45 Ind. 424. 183; Bessette^ V. State, 101 Ind. 85; 'Stanley v. Sutherland, 54 Ind. 339; Eppsv. State, 102 Ind. 539. Brownlee v. Kenneipp, 41 Ind. 216; *Bass V. State, 136 Ind. 165. Guard v. Risk, 11 Ind. 156; Ruger v. = Workingv. Gam, 148 Ind. 546,551 ; Bungan.lO Ind. 451. Morei v. State, 89 Ind. 275; Gardner "Stanley v. Sutherland 54 Ind. 339. 62 APPELLATE PRACTICE. § 43 The criminal code specifies three particulars in which the ac- tion of the jury shall be deemed misconduct: First, when the jury has separated without leave of court after retiring to de- liberate on their verdict.' Second, when the jury has received and considered any evidence, paper or document not author- ized by the court.^ Third, when the verdict has been found by means other than a fair expression of opinion on the part of all the jurors,' and all of these reasons are held to be included under the general head of misconduct of the jury in civil cases.* But to authorize the setting aside of a verdict on ac- count of the misconduct of the jury it must appear that such misconduct was gross, and resulted in a probable injury to the party complaining.' Thus the separation of the jury without leave of court is not cause for a new trial when it is shown that they separated for a necessary purpose and remained in charge of an ofiicer,' and where it appears that no harm re- sulted to the defendant,' because the verdict is clearly right on the evidence.' The fact that papers were improperly taken to the jury-room is not a cause for a new trial where they were inadvertently taken, and were not examined nor made use of by any of the jurors.' But if law books or papers are actually used by the jury in considering a cause, a new trial must be granted." The use of intoxicating liquors by members of the jury may be such misconduct as to require that a new trial should be 1 R. S. 1894, § 1911, subdivision 2. Jones v. State, 152 Ind. 318; Master- " R. S. 1894, § 1911, subdivision 3. son v. State, 144 Ind. 240. s R. S. 1894, § 1911, subdivision 5. ' Drew v. State, 124 Ind. 9; Clayton « Toohy v. Sarvis, 78 Ind. 474 ; Short v. State, 100 Ind. 201 ; Riley v. State, v. West, 30 Ind. 367; City of New Al- 95 Ind. 446; Creek v. State, 24 Ind. banyv.McCullocli,127 Ind. 500; Ohio, 151. etc., R. Co. V. Hill, 7 Ind. App. 255. » Masterson v. State, 144 Ind. 240. 5 City of New Albany v. McCulloch, 9 Berscb v. State, 13 Ind. 434; Ohio, 127Ind.500,507; DeHartv.Etnire,121 etc., R. Co. v. Hill,- 7 Ind. App. 255, Ind. 242; Long v. State, 95 Ind. 481, 266. 486; Carter V.Ford PlateGlass Co., 85 i Griffin v. Pate, 63 Ind. 273. 3 — App. Practice. 66 APPELLATE PRACTICE. § 45 of the trial is reserved under the statute,' it must be reviewed by a motion for a new trial before it can be presented to the supreme court on appeal.^ § 45. Same — Newly-diseovered evidence. — Newly-discov- ered evidence, material for the party applying, which he could not with reasonable diligence have discovered and pro- duced at the trial, will sometimes enable the defendant in a criminal case,' or the losing party in a civil action,' to secure anew trial. But" the ne^ly-discovered evidence must relate to some fact as to which the party offering it did not pre- sent any evidence of the same class ^ at the former trial, and must be of such a material and decisive character as to make it probable that its presentation at a second trial would change the result.^ , If the new evidence be merely cumulative or corroborative of similar evidence given at the former trial,' or merely tends to impeach the evidence of one or more witnesses who testified at the former trial,' a new trial will not be granted ^n order that it may be presented. And if the new evidence consists of confidential communications to a physician,' or an attorney," or is otherwise such that it must be excluded if objection to its 1 R. S. 1894, § 642. 587 ; Morrison v. Carey, 129 Ind. 277 ; * Conner v. Town of Marion, 112 Schnurr v. Stult8,119 Ind. 429; Penn- Ind. 517. sylvania Co. v. Nations, 111 Ind. 203; SR. S. 1894, § 1911. Offutt V. Gowdy, 18 Ind. App. 602; «R. S. 1894, § 568. Watts v. Moftett, 12 Ind. App. 399; sRochel V. Bartlett, 88 Ind. 237; Eddingfleld v. State, 12 Ind. App.. Houston V. Bruner, 39 Ind. 376 ; Coop- 312. er V. Ellis, 3 Ind. App. 142. ' 'Hutchins v. State, 151 Ind. 667, 6 Smith V. State, 143 Ind. 685; Jack- 678; Smithi v. State, 143 Ind. 685; son V. Swope, 134 Ind. Ill; Morrison Meurer v. Statfe, 129 Ind. 587; Brown V.Carey, 129 Ind. 277; Andis V.Richie, v. Grove, 116 Ind. 84; Pennsylvania. 120 Ind. 138; Schnurr v. Stults, 119 Co. v. Nations, 111 Ind. 203; Brit- Ind. 429; Turner v. State, 102 Ind. tenhamv. Robinson, 18 Ind. App. 502; 425; Hines v. Driver, 100 Ind. 315, Green v. Beckner, 3 Ind. App. 39. 325; Freeman v. Hutchinson, 15 Ind. =City of Alexandria v. Young, 20 App. 639; Thornburg v. Buck, 13 Ind. Ind. App. 672, 679; Harris v. Eupel, App. 446. 14 Ind. 209. 'Smith V. State, 143 Ind. 685, and "Hutchins v. State,151 Ind. 667,678; cases cited; Meurer v. State, 129 Ind. Working v. Garn, 148 Ind. 546, 549. § 45 PRESENTATION OF OBJECTIONS. 67 introduction is made/ its discovery is not cause for a new trial. That the party did not fail to use diligence to discover the evidence at the first trial must be shown by afiBdavits setting forth fully and minutely the acts done in efforts to discover and produce it, and the excuse for not making further efforts.* The time, place and circumstances of making inquiries for ad- ditional evidence must be definitely stated f the statement of mere conclusions and general assertions of diligence will be disregarded.' If the person who is to give the evidence alleged to have been newly discovered was subpenaed as a witness at the first trial, it must be shown that proper inquiries were made to learn what his evidence would be, and proper steps taken to compel his attendance in answer to the subpena.^ It is said that a second application for a new trial on account of newly- discovered evidence, after one such new trial has been granted, must be supported by a showing of diligence that is especially clear, strong and satisfactory.* The affidavits of the wit- nesses as to the truth of the alleged new evidence must be filed with the motion,' or a sufficient reason given for not filing them,' and the fact that the party making the application is in custody,^ or does not know the place of residence of the wit- iSee E. S. 1894, § 505. 255; Blackburn v. Crowder„110 Ind. 2 Working v. Garn, 148 Ind. 546, 127; Hines v. Driver, 100 Ind. 315, 550; Pfaffenback v. Lake Shore, etc., 323; Toney v. Toney, 73 Ind. 34. E. Co., 142 Ind. 246; McDonald v. *Barnett v. State, 141 Ind. 149; Coryell, 134 Ind. 493; Johnson v. Schnurr v. Stults, 119 Ind. 429; Allen Brown, 130 Ind. 534; Anderson v. v. Bond, 112 Ind. 523, 530; Hines v. Hathaway, 130 Ind. 528; Crumrine Driver, 100 Ind. 315, 322. V. Estate of Crumrine, 14 Ind. App. ^ Marks v. State, 101 Ind. 353. 641; Huntington, etc., Co. v. Mock, « Hines v. Driver, 100 Ind. 315^ 320. 14Ind. App. 221; Watts v.Moffett, 12 'Vandyne v. State, 130 Ind. 26; Ind. App. 399; Eddingfield v. State, Quinn v. State, 123 Ind. 59; Harper 12 Ind. App. 312; Cooper v. State, v. State, 101 Ind. 109; Shipman v. 120 Ind. 377, 383; Skaggs v.- State, State, 38 Ind. 549; Harris v. Eupel, 108 Ind. 53, 60. See Davis v. Davis, 14 Ind. 209; Ogden v. Kelsey, 4 Ind. 145 Ind. 4. App. 299. 'McDonald V. Coryell, 134 Ind. 493; 'Vandyne v. State, 130 Ind. 26; Morrison v. Carey, 129 Ind. 277; Harris v. Eupel, 14 Ind. 209. Du Souchet v. Dutcher, 113 Ind. 249, ^ Vandyne v. State, 130 Ind. 26. 68 APPELLATE PRACTICE. § 46 nesses/ has been held insufficient as an excuse for not filing such affidavits. § 46. Same — Verdict not supported by the evidence. — That the verdict or decision is not supported by sufficient evidence or is contrary to law in a civil case/ or that it is contrary to the law or evidence in a criminal case/ is another cause for a new trial. But the language of the statute should be observed and followed closely, for it has been held that specifications that the "judgment" is not sustained by the evidence/ or is contrary to the evidence/ or is contrary to. law/ or that the verd,ict is contrary to the evidence/ are each insufficient in civil cases; and also that the specification that the verdict is not sustained by the evidence is insufficient in a criminal case.' It is said that a verdict is contrary to law when it is contrary to the principles of law which should govern the cause as ap- plied to the facts which the jury was called to try/ and a ver- dict has been set aside as being contrary to law, where it af- firmatively appeared from the answers to interrogatories that the verdict was in part based on an insufficient, paragraph of complaint.^" In another case a finding not supported by any evidence legally admissible under the issues was held to be contrary to law." The rule which governs the cases on appeal, where the suffi- ciency of the evidence is questioned,, is entirely different from that by which the trial courts are governed.'^ It is the imper- ative duty of a trial court to grant a new trial on proper ap- 1 Harris v. Rupel, 14 Ind. 209. ' Louisville, etc., E. Co. v. Eenicker, 2R. S. 1894, § 568, subdivision 6. 8 Ind. App. 404. SR. S. 1894, § 1911, subdivision 9. ' Huffman v. State,— Ind. App. — , iMcOonahey's Estate v. Foster, 21 52 N. E. Rep. 713. Ind. App. 416; Eodefer v. Fletcher, 'Bosseker v. Cramer, 18 Ind. 44; 89 Ind. 563; Rosenzweig v. Frazer, Robinson Machine Works v. Chan- 82 Ind. 342 ; dler, 56 Ind. 575, 583. = Hubbs v. State, 20 Ind. App. 181 ; " Cincinnati, etc., R. Co.v. Darling, Eodefer v. Fletcher, 89 Ind. 563. 130 Ind. 376, 381. «Mannv. Barkley, 21 Ind. App. 152; " Cincinnati, etc., Co. v.Chenoweth, Eodefer v. Fletcher, 89 Ind. 563 ; Mc- — Ind. App. — , 54 N. E. Rep. 403. Conahey's Estate v. Foster, 21 Ind. " Deal v. State, 140 Ind. 354! App. 416. § 47 PKESENTATION OF OBJECTIONS. 69 plication, unless it clearly appears that substantial justice has been done by the verdict.' It must be presumed that this duty would have been fearlessly performed had the verdict been opposed to the evidence which the judge believed to be true.' And, therefore, the supreme or appellate court will refuse to set aside the verdict on the evidence, if there is any legal evi- dence, which, if it alone were believed, would justify and sup- port the verdict.' It follows that a new trial will never be granted on appeal upon the weight of conflicting evidence, and this rule is an- nounced in cases too numerous for citation.' But where there is an entire absence of legal evidence to support some material issue on which the appellee's right to recover depends,' or the uncontradicted evidence establishes appellant's right to re- cover,* a verdict for the appellee will be set aside. The evi- dence that will uphold a verdict must not only be such as would support a recovery by the appellee, but it must be such as supports the cause of action stated in his complaint on the theory outlined therein.' A verdict that is contrary to the in- structions of the court is not necessarily contrary to law, as the instructions themselves maybe incorrect,' but a verdict re- turned in defiance of correct instructions will be set aside. § 47. Same — Excessive damages. — To these causes for a new trial, which are common to both civil and criminal cases, must be added three causes that are peculiar to civil cases, 'Cleveland, etc., E. Co. v. Davis, 447; Madden v. State, 148 Ind. 183; 10 Ind. App. 342; Lake Erie, etc., E. Perrin Nat'l Bank v. Thompson, 20 Co. V. Stick, 143 Ind. 449, 454; Cin- Ind. App. 649. cinnati, etc., R. Co. v. Madden, 134 ^Earick v. Ulmer, 144 Ind. 25; Ind. 462,469; Earick v. Ulmer, 144 Eobbins v. Spencer, 140 Ind. 483; Ind. 25 ; Deal v. State, 140 Ind. 354 ; City of Warsaw v. Dunlap, 112 Ind. Louisville, etc., E. Co. v. Cook, 12 576. Ind. App. 109. 6 Rjiey y. Boyer, 76 Ind. 152. See ' Cincinnati, etc., E. Co. v. Madden, Dockerty v. Hutson, 125 Ind. 102. 134 Ind. 462; Lake Erie, etc., E. Co. 'Cleveland, etc., R. Co. v. Wynant, V. Stick, 143 Ind. 449. 100 Ind. 160; Armacost v. Lindley, 'Lake Erie, etc., E. Co. v. Stick, 116 Ind. 295. 143 Ind. 449. » Pittsburgh, etc., E. Co. v. Ives, 12 * See Schmidt v. Zahrndt, 148 Ind. Ind. App. 602. 70 APPELLATE PRACTICE. § 47 viz.: Excessive damages' in actions for tort;* error in the as- sessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of' property,' and misconduct of the prevailing party.' Excessive damages is not a cause for a new trial in any case except where the action is based on a, tort,' and a specification that the damages are excessive presents no ques- tion where the action was based on a contract.^ The amount of damages to be assessed in an action for tort is a question within the peculiar province of the jury,' and a verdict will not be set aside because of excessive damages unless the amount is so out of proportion to the injury suffered by the plaintiff as to strike every one with its enormity and injustice, and to in- duce the court to believe that the jury must have acted from prejudice, partiality, or corruption.' The mere fact that the judges would allow a smaller sum as damages if they were passing on the evidence is not enough;' itmustappear that the jury abused the very broad discretion vested in it before the verdict will be set aside." But where the discretion of the jury was clearly abused by the assessment of damages out of all proportion to the injury suffered, the court will not hesitate to set a verdict aside." Where the appellee was clearly entitled ' R. S. 1894, § 568, eubdi vision 4. 533, 566 ; Bedford, etc., R. Co. v. Eain- « Marvin v. Sager, 145 Ind. 261; bolt, 99 Ind. 551. White v. McGrew, 129 Ind. 83; West- * Louisville, etc., R. Co. v. Kemper, ern, etc., Co. v. Studebaker Bros., — Ind. — , 53 N. E. Rep. 931; Louis- 124 Ind. 176; Norris v. Churchill, 20 ville, etc., R. Go. v. Miller, 141 Ind. Ind. App. 668; Milwaukee, etc., Co. 533, 566; City of Frankfort v. Cole- V. Stewart, 13 Ind. App. 640. man, 19 Ind. App. 638, 375. = R. S. 1894, § 568, subdivisions. 'Louisville, etc., R. Co. v. Miller, * R. S. 1894, § 568, subdivision 2. 141 Ind. 533, 566 ; Louisville, etc., Co. 6 Marvin v. Sager, 145 Ind. 261; v. Pedigo, 108 Ind. 481; Bedford, White v. McGrew, 129 Ind. 83; Nor- etc., R. Co. v. Raiubolt, 99 Ind. 551. ris V. Churchill, 20 Ind. App. 668; "City of Frankfort v. Coleman, 19 Elliott's App. Proc, § 856. Ind. App. 368; City of Bluffton v. 8 Hogshead v. State, 120 Ind. 327; McAfee, — Ind. App. — , 53 N. E. McKinney v. State, 117 Ind. 26; Rep. 1058; City of Mt. Vernon v. Marvin v. Sager, 145 Ind. 261. Hohen, — Ind. App. — , 53 N. E. Bep. 'Louisville, etc., R. Co. v. Kemper, 654; Louisville, etc., R. Co. v. Kem- — Ind. — , 53 N. E. Rep. 931 ; Louis- per, — Ind. — , 53 N. E. Rep. 931. ville, etc., R. Co. v. Miller, 141 Ind. "Cleveland, etc., R. Co. v.Quillen, § 48 PRESENTATION OF OBJECTIONS. 71 to recover nominal damages, a verdict in his favor will not be set aside because it is a few cents in excess of the lowest sum that might be awarded him.' § 48. Same — Recovery too large or too small. — Where the amount of the verdict depends on a mathematical calculation from the facts proven by the evidence and found by the jury, an error in the calculation may be reached by a motion for a new trial on the ground of error in the assessment of the amount of the recovery.^ The proper way to specify an error of this character is to follow the language of the statute, and move for a new trial, for the reason that there was " error in the assessment of the amount of recovery in that the same is too large," or is "too ,small."' Such an error can not be ques- tioned under any other specification.* Where the appellee was clearly entitled to recover something, the judgment will not be reversed because the amount assessed in his favor was a few cents more than an exact computation would show him entitled to.* The excess may be disregarded,^ or the entry of a remit- titur for such excess ordered.' It is only when he was injured by the error in assessing damages that a party can complain of it. The fact that the appellee, if entitled to anything, was entitled to more than he recovered, is not a circumstance of which the appellant will be heard to complain.* § 49. Same — Misconduct of party or counsel. — Under the head of misconduct of the prevailing party, which may consti- — Ind. App. — , 53 N. E. Eep. 1024; Marvin v. Sager, 145 Ind.261; Weller Courtney V. Clinton, 18 Ind. App. 620; v. Bectell, 2 Ind. App. 228; Siieeks v. Eve V. Rogers, 12 Ind. App. 623 ; Mar- Fillion, 3 Ind. App. 262. stellar v. Crapp, 62 Ind. 359; Hall v. =Hall v. Hall, 34 Ind. 314. Hall, 42 Ind. 585. ^ Hall v. Hall, 34 Ind. 314. 'Hill v. Forkner, 76Ind. 115. 'Citizens' St. R. Co. v. Bobbins, 'Pennington v. Pennington, 138 144 Ind. 671,687; Line v. State, 131 Ind. 8. Ind. 468; Cummings v. Girton, 19 'Chaplin v. Sullivan, 128 Ind. 50; Ind. App. 248. Bartlett V. Burden, 11 Ind. App. 419; 'Fischer v. Holmes, 123 Ind. 525; Marvin v. Sager, 145 Ind.261; R. S. Noftsger v. Smith, 6 Ind. App. 54; 1894, § 568, subdivision 5. Evans v. Koons, 10 Ind. App. 603. ^McElhoes v. Dale, 81 Ind. 67; 72 APPELLATE PKACTICE. § 49 tute a cause for a new trial, is included the misconduct, not only of the party himself, but of his counsel.' It has been held such misconduct as to justify the reversal of a judgment for a party to the action to treat a crowd of men to intoxicat- ing liquor, among whom were some of the jurymen^ or to go himself, and take all his witnesses to board at a restaurant kept by one of the jurymen.' A new trial has frequently been asked because of the misconduct of counsel in criminal' as well as in civil cases. But in such cases it is put on the ground of irregularity of the court in permitting such miscon- duct. Where counsel for the state is guilty of misconduct in his opening statement," or in the closing argument,' the defend- ant must immediately interpose a motion to discharge the jury,' to instruct them to disregard the improper statements of counsel,' or to take some other action that will neutralize the effect of such misconduct,^ or he can not afterward take advan- tage of it on appeal. An error in the use of improper language by counsel can usually be cured by the formal withdrawal of the improper remarks by means of an instruction of the court to disregard them.'" The misconduct of counsel in argument, which con- stitutes a cause for a new trial, usually consists in commenting on facts that are not in evidence, arid making assertions that are not supported by the evidence." And where such state- ments and assertions are made as are calculated to prejudice 'Indianapolis Journal, etc., Co. v. Pigg v. State, 145 Ind. 560; Eobb v. Pugh, 6 Ind. App. 510, 520. State, 144 Ind. 569 ; Reed v. State, 141 2 Huston V. Vail, 51 Ind. 299. Ind. 116. 'Pittsburgh, etc., R. Co. v. Welch, "Anderson v. State, 147 Ind. 445; 12 Ind. App. 433. Pigg v. State, 145 Ind. 560; Magnu- *Drew V. State, 124 Ind. 9; Grubb son v. State, 13 Ind. App. 303; John- V. State, 117 Ind. 277; Anderson v. son v. Brown, 130 Ind. 534; Louisville, State, 147 Ind. 445; Robb v. State, etc., R. Co. v. Norman, 17 Ind. App. 144 Ind. 569. 355; Maybin v. Webster, 8 Ind. App. = Robb V. State, 144 Ind. 569. 547; Indianapolis, etc., Co. v. Pugh, « Reed v. State, 141 Ind. 116. 6 Ind. App. 510. 'Siberry v. State, 133 Ind. 677; " Lewis v. State, 137 Ind.344;Scblot- Zimmerman v. State, 4 Ind. App. 583. ter v. State, 127 Ind. 493 ; Bessette v. 8 Reed v. State, 141 Ind. 116. State, 101 Ind. 85 ; Magnuson v. State, -9 Anderson v. State, 147 Ind. 445; 13 Ind. App. 303. § 49 PRESENTATION OF OBJECTIONS. 73 him, and the appellant makes a proper objection and reserves a proper exception thereto, a judgment against him will be reversed for that cause on appeal.' But improper statements by counsel in argument can only be made a part of the record by a bill of exceptions,^ and such bill must affirmatively show that a proper request was made to the court to take some action toward restraining the improper conduct of counsel and cor- recting the statements already made,^ and a proper exception reserved upon its refusal to do so.* The recital that a party ' ' protested ' ' against a ruling of the court' does not have the same effect as a recital that he ob- jected and excepted. The statement to which the objectioil was made and exception reserved must appear to have been calculated to prejudice appellant,^ though injury may be pre- sumed when misconduct such as would probably injuriously affect appellant's rights is shown.' But drawing wrong infer- ences from the evidence, or expressing a wrong opinion as to the law governing the case,' does not usually entitle the oppo- site party to a new trial; nor does any misconduct in the argu- ment which is not of such a material character as probably to •have been the means of securing a wrong verdict.' An instruction by the court that the jury shall disregard the im- 'lewisv. State, 137 Ind. 344; Schlot- Evansville v. Thacker, 2 Ind. App. ter V. State, 127 Ind. 493 ; Magnuson 370. V. State, 13 Ind. App. 303; Indian- =Eobmson v. State, 152 Ind. 304; apolis, etc., Co. v. Pugh, 6 Ind. App. section 7, ante. 510; Mainard V. Eeider, 2 Ind. App. * Eoose v. Roose, 145 Ind. 162 ; Hum- 115. barger v. Carey, 145 Ind.' 324; Lake ^ Hood V. Tyner, 3 Ind. App. 51. Erie, etc., R. Co. v. Close, 5 Ind. App. ' Reed v. State, 141 Ind. 116 ; Lewis 444. V. State, 137 Ind. 344; Schlotter v. 'Eobb v. State, 144 Ind. 569; Mag- State, 127 Ind. 493; Magnuson v. nuson v. State, 13 Ind. App. 303 ; In- State, 13 Ind. App. 303; Houk v. dianapolis, etc., Co. v. Pugb, 6 Ind. Branson, 17 Ind. App. 119; Maybin App. 510; Mainard v. Eeider, 2 Ind. V Webster, 8 Ind. App. 547. App. 115. 'Fruchey V. Eagleson, 15 Ind. App. 'Anderson v. State, 147 Ind. 445; 88; Houkv. Branson, 17 Ind. App. Sage v. State, 127 Ind. 15. 119; Chicago, etc., R. Co. v. Cham- 'Roosev.Roose,145Ind. 162; Hum- pion, 9 Ind. App. 510; Welsh v. barger v. Carey, 145 Ind. 324; Lake Brown, 8 Ind. App. 421; City of Erie, etc., R. Co. v. Close, 5 Ind. App. 444; Capron v. State, 11 Ind. App, 95. 74 APPELLATE PRACTICE. § 50 proper statements of counsel, and a direction that counsel shall keep within the record, will be presumed to have cured the error in making such statements.' In order that the mis- conduct of counsel in argument may be presented for consid- eration on appeal ^ an exception must have been taken at the time of the argument and properly saved by a bill of excep- tions, and such misconduct must then be presented for review by a proper assignment in a motion for a new trial and an exception saved to the ruling of the court on such motion. . § 50. Form of motion for new trial. — The grounds on which the motion for a new trial is based are required by the statute to be stated in writing,' and in practice this is in- terpreted to mean that the motion itself shall be written,' and shall state specifically the causes for which a new trial is asked. ° A motion for a new trial is not complete until the written reasons therefor are filed, ^ and where an oral motion for a new trial was made without filing written reasons, it was held so far a nullity that a proper motion might be presented after it had been overruled.' The reasons assigned in a motion for a new trial must be so specifio and definite as not to impose on the trial court, or the court to which an appeal is taken, the task of searching through the record for the alleged erroneous rulings.' The motion should ask for a new trial generally, and not for a new trial of certain specified issues, or it will be insufBcient,' and 'Anderson v. State, 147 Ind. 445; 4 Ind. App. 100; City of Evansville v. Pigg V. State, 145 Ind. 569 ; Johnson Thacker, 2 Ind. App. 370. V. Brown, 130 Ind. 534; Louisville, ^'R. S. 1894, §§571, 1911. etc., E. Co. V. Norman, 17 Ind. App. * Wheeler v. Barr, 6 Ind. App. 530. 355; Magnuson v. State, 13 Ind. App. ^ Eujott's App. Proc, § 840. 303; May bin V. Webster, 8 JInd. App. «Secor v. Souder, 95 Ind. 95; La- 647. foUette v. Higgins, 109 Ind. 241. 2Houkv.Branson,17Ind. App. 119; 'Wheelerv. Barr, 6 Ind. App. 530. Fruchey v. Eagleson, 15 Ind. App. 88 ; * Eeese v. Caftee, 133 Ind. 14; Stoui Chicago, etc., E. Co. v. Champion, 9 v. Harlem, 20 Ind. App. 200; Beugnot Ind. App. 510; Welsh v. Brown, 8 v. State, 11 Ind. App. 620; Knisely v. Ind. App. 421 ; State v. Taylor, 5 Ind. Hire, 2 Ind. App. 86. App. 29; Vannatta v. Duffy, 4 Ind. 'Johnson v. McOulloch, 89 Ind. App. 168 ; Ohio, etc., E. Co. v. Wrape, 270. § 50 , PRESENTATION OF OBJECTIONS. 75 all the grounds relied on for obtaining a new trial must be in- cluded in the one motion.' An order granting a new trial has the legal effect to open up the whole case, although it specifies certain issues only which are to be retried;^ but when it is clear that the issues joined between the party applying for a new trial and his adversaries do not affect in any manner the rights of other parties to the case as originally tried, a new trial may be granted as to the issues joined by such interested parties alone,' but it must clearly appear that such issues are separate and distinct.* The ordinary form of a motion for a new trial is as follows: State of Indiana, \ County of J In the Circuit Court of said county at the term. John Smith, et al.. Plaintiffs, V. George Jones, et al., Defendants. The defendants (or the plaintiffs) move the court to grant a new trial in this action for the following causes, viz. . 1. That the court erred in, etc.. (admitting or excluding evidence, giving or refusing instructions, etc.). 2. That the court was guilty of an abuse of discretion by which the defend- ant was prevented from having a fair trial, in that it, etc. 3. Misconduct of the jury, in that the jurors, G. H. and I. N., did, etc., as shown by the affidavits of, etc., filed herewith. 4. Misconduct of the jury, in that the jurors separated without leave, etc., as shown by the affidavits of, etc. 5. Misconduct of the jury, in that it received and considered (a certain paper, designating it) not authorized by the court, as shown by the affidavits, etc. 6. Misconduct of the jury, in that the verdict was found by means other than a fair expression of opinion on the part of all the jurors, in this, that said jurors,""etc., as shown by the affidavits, etc. 7. The jury was guilty of misconduct tending to prevent a fair and due con- sideration of the cause, in this, that, etc., as shown by the affidavits, etc. 8. Misconduct of the prevailing party, in that the plaintiffs, etc., as shown by the affidavits, etc. 9. Surprise which ordinary prudence could not have guarded against, in that, etc., as shown by the affidavits of, etc. 10. The damages are excessive. (If the action is in tort.) 11. Error in the assessment of the amount of recovery in that it is too large. (If the action is on contract.) ' Moon V. Jennings, 119 Ind. 130. 'National Bank v. Williams, 126 * State v. Templin, 122 Ind. 235. Ind. 423. * Bennett v. Closson, 138 Ind. 542. 76 APPELLATE PRACTICE. § 51 12. That the verdict is not sustained by sufficient evidence. 13. That the verdict is contrary to law. 14. That the defendants have, since the verdict was returned, discovered new, competent, and material evidence in their own favor which they could not with reasonable diligence have discovered and produced at the trial, as is more fully shown by the affidavits of, etc., filed herewith. Wherefore, the defendant prays for a new trial. ■. , Attorneys for Defendant. If the motiou for a new trial is based on grounds shown by affidavits, such affidavits must be made a part of the record by a proper bill of exceptions.' And whatever errors are relied on, they must be shown by a proper bill of exceptions to have been committed,^ as the statements in the motion itself can not be taken as establishing the truth of the facts recited therein.', While a motion for a new trial must specify with reasonable certainty the error of which complaint is made, it is not neces- sary that instructions given or refused, or evidence admitted or rejected, should be recited therein, but it will be sufficient if the motion refers to the same in such a manner that the judge can not mistake the instructions or evidence and the rulings complained of.' § 51. Enumeration of causes in motion for new trial.— A party 'is permitted to file but one motion for a new trial, in which he must include all the grounds relied on to obtain it.' Each ruling of the trial court which is believed to be errone- ous should be specified with reasonable certainty, and in such a definite and specific manner that the court will not be under the necessity of searching through the record to find it.° It is iSiberry v. State, 149 Ind. 684; Ind. App. 10; Ahlendorf v. First Na- Reed V. State, 147 Ind. 41; Naanesv. tional Bank, 6 Ind. App. 316; Elmer State, 143 Ind. 299; Forsyth v. Wil- v. Marsh, 3 Ind. App. 558. cox, 143 Ind. 144; Hoskinson v. Cav- * Heltonville, etc., Co. v. Fields, 138 ender, 143 Ind. 1; ^tna Ins. Co. v. Ind. 58; Ohio, etc., E. Co. v. Stein, LeEoy, 15 Ind. App. 49; Smith v. 133 Ind. 243; Dodge v. Morrow, 14 Stump, 12 Ind. App. 359. Ind. App. 534. ^Louisville, etc., E. Co. v. Miller, =Moon v. Jennings, 119 Ind. 130, 141 Ind. 533; Ahlendorf v. First 136. A second motion may some- National Bank, 6 Ind. App. 316. times be filed where the first motion ' Siberryv. State, 149 Ind. 684; Eobb has proved to be void. Wheeler v. V. State, 144 Ind. 569 ; Louisville, etc., Barr, 6 Ind. App. 530. E. Co. V.Miller, 141 Ind. 533; Louis- ^petitt v. Petitt, 138 Ind. 597; ville, etc., E. Co. v. Hendricks, 18 Eeese v. Caff ee, 133 Ind. 14; Bower § 52 PRESENTATION OF OBJECTIONS. 77 not necessary that evidence or instructions should be recited in the motion, but they must be referred to with reasonable certainty.' Designating the evidence alleged to have been im- properly admitted or excluded, by a reference to a bill of ex- ceptions that had not been filed when the motion was ruled on, will be treated by the supreme court as a failure to point out such evidence in any mannej whatever.^ But where a bill of exceptions has been signed and filed before the motion for a new trial is presented it may properly be referred to in aid of the motion.' Care should be taken to enumerate only causes that come within some one or more of the grounds for which the statute authorizes a new trial to be granted, and it is well to follow the language of the statute as far as possible in specifying the causes for which a new trial is asked, adding to its language such other statements as are necessary to make the specifications distinct and definite. § 52. Afiidavits in support of motion for new trial. — A motion for a new trial because of misconduct of the jury or prevailing party,' or for accident or surprise which ordinary prudence could not have guarded against,' or because of newly- discovered evidence material for the party applying which he could not with reasonable diligence have discovered and pro- duced at the trial, ^ must be sustained by affidavits showing the truth of the alleged cause for which a new trial is asked.' Counter affidavits may be received by the court as to the exist- V. Bower, 146 Ind. 393; Lovely v. mack v. McCammack, 86 Ind. 387 Speisshdfler, 85 Ind. 454; Stout v. Sutherland v. Hanking, 56 Ind. 343 Harlem, 20 Ind. App. 200 ; Beugnot V. Dawson v. Hemphill, 50 Ind. 422 State, 11 Ind. App. 620; Knisely'v. Noole v. Dickson, 48 Ind. 171. Hire, 2 Ind. App. 86 ; Maier v. Board ^ Elliott v. Russell, 92 Ind. 526. of Public Works, 151 Ind. 197. * Shular v. State, 105 Ind. 289 ; Houk 'Heltonville, etc., Co. v. Fields, 138 v Allen, 126 Ind. 568. Ind. 58; Ohio, etc., R. Co. v. Stein, ^Dowell v. State, 97 Ind. 310; Mc- 133 Ind. 243; Dodge v. Morrow, 14 Clure v. State, 116 Ind. 169. Ind. App. 534. * Section 45, ante. 2 Northwestern, etc., Ins. Co. v. 'R. S. 1894, §571. Hazelett, 105 Ind. 212, 221 ; McOam- 78 APPELLATE PRACTICE. § 53 ence of such cause for a new trial/ and the decision of the trial court on an issue thus presented is final. ^ § 53. Time and manner of flling motion for new trial. — ^The motion for a new trial in a criminal case must be made before the expiration of the term at which the judgment was ren- dered,' and in a civil case the motion may be made at any time during the term at which the verdict of the jury is returned or the finding of the court is announced, or if such decision or verdict is rendered on the last day of a term, the motion may be made on the first day of the next term of court.' The next term at which a motion for a new trial may sometimes be filed is the next session of the court, whether at a regular, special or adjourned term.^ The causes for which a new trial is asked must be stated in writing,^ and where the grounds on which the motion is based are not otherwise shown, as where the mis- conduct of the jury or prevailing party, accident or surprise, or newly-discovered evidence is relied on,' the motion must be accompanied by affidavits showing the existence of such cause.' It is held that merely writing out and delivering to the clerk a motion for a new trial does not constitute making an appli- cation for a new trial within the meaning of the statute.' The motion must be brought to the attention of the court, and the written reasons delivered to the clerk, and an order-book entry of the fact that the motion and reasons were filed must be made." It has been said that the motion itself must be in 'Hire v. State^.144 Ind. 359; Houk *E.' S. 1894, §570; Eadabaugh v. V. Allen, 126 Ind. 568; Jones v. State, Silvers, 135 Ind. 605; Evansville, etc., 89 Ind. 82; Long v. State, 95 Ind. 481; E. Co. v. Maddux, 134 Ind. 571; Louis- Shular v. State, 105 Ind. 289 ; Zeller ville, etc., E. Co. v. Sammers,131 Ind. V. Griffith, 89 Ind. 80, 81; Westbrook 241. V. Aiiltman, Miller & Co., 3 Ind. App. = E. S. 1894, § 570 ; Mcintosh v. Zar- 83, 86; First National Bank v. Gib- ing, 150 Ind. 301, 316. » bons, 7 Ind. App. 629, 633; Ham- ^ r, g. 1394^ §§ 571^ 1911. mond, etc., E. Co. V. Spyzchalski, 17 'E. S. 1894, §571; Vandyne v. Ind. App, 7. State, 130 Ind. 26 ; Houk v. Allen, 126 ^Eoose V. Eoose, 145 Ind. 1^2; Ind. 568. Schnurr v. Stults, 119 Ind. 429; De- ' See section 52, ante. hart V. Aper, 107 Ind. 460. ^Emison v. Shepfird, 121 Ind. 184. 'E. S, 1894, § 1911. " Emison v. Shepard, 121 Ind. 184; § 53 PRESENTATION dP OBJECTIONS. 79 writing in order to be sufficient,' and the usual practice is to make a written motion, and recite in it the causes for which a new trial is asked.* If no objection is made to the motion, ir- regularities in its form or substance which could be remedied, such as a failure of the party or his attorney to sign it, will be regarded as waived.^ The fact that judgment was not entered until a later term does not extend the time for filing a motion for a new trial in a civil case beyond the term at which the verdict was returned or the finding announced,* even where the case remains pending pn a motion by appellant for judg- ment in his favor.' The statute only prescribes the term at which the motion must be made. It may be presented im- mediately after the verdict is returned or the finding an- nounced,^ or the losing party may wait till near the end of the term and until after judgment has been pronounced.' But it must be presented within the term (or on the first day of the next succeeding term in a proper case) or it will be too late.* The absence from the county of the special judge who tried the case has been held no excuse for a failure to file the mo- tion within the time required.' It is held that the parties may make a binding agreement to permit the filing of a mo- tion for a new trial after the expiration of the time allowed by the statute, and that the right to object to a motion because not filed in time is waived by a failure to object to its filing until after it has been entertained and acted on by the court.'" But the opinion has been expressed that an attorney could William Deering, etc., Co. v. Arm- 88 ; Cox v. Baker, 113 Ind. 62 ; Calvert strong, 18 Ind. App. 687; Levey v. v. State, 91 Ind; 473. Bigelow, 6 Ind. App. 677. « Allen v. Adams, 150 Ind. 409 ; Rad- ' "Wheeler V. Barr, 6 Ind. App. 530. abaugh v. Silvers, 135 Ind. 605; ^ Section 14, arefe. Evahsville, etc., R. Co. v. Maddux,. 5 Rape V. Lathrop, 18 Ind. App. 633. 134 Ind. 571 ; William Deering, etc., 'Allen V. Adams, 1.50 Ind. 409; Co. v. Armstrong, 18 Ind. App. 687. Radabaugh v. Silvers, 135 Ind. 605. ^William Deering, etc., Co. v. Arm- ^ Jacquay v. Hartzell, 1 Ind. App. sti-ong, 18 Ind. App. 687. 500. " Geiss v. Franklin Ins. Co., 123- ^Herkimer v. McGregor, 126 Ind. Ind. 172; Krutz v. Craig, 53 Ind. 561; 247, 260. Northcutt v. Buckles, 60 Ind. 577. 'American, etc., Co. v. Clark, 123 See Habbe v. Viele, 148 Ind. 116. Ind. 230; Colchen v. Ninde, 120 Ind. 80 APPELLATE PRACTICE. § 54 not bind his client in advance by such an agreement, unless it was entered on the minutes of the court, or made in con- formity with the provisions of the statute.' If the record merely shows that the motion was filed, without showing the date of filing, and it was entertained and a,cted on, it will be presumed to have been filed at the proper time.° Where the finding of the court is filed in vacation, it does not become ef- fective until the next term of court, and a motion for a new trial may be made at any time during that term.' § 54. Saving exception when motion for new trial is over- ruled. — The section of the civil code which requires that an exception shall be taken at the time a decision objected to is made also provides ' that if a motion for a new trial shall be filed in a cause in which' such decision so excepted to is as- signed as a reason for a new trial, such motion shall carry such decision and exceptions forward to the time of ruling on such motion, and time may then be given by the court within which to reduce such exception to writing.' This provision does not apply to criminal cases, but in such cases, if time is given for filing a bill of, exceptions, it must be granted before judgment is rendered.' Under this provision it is held that where an exception is taken to the admission or rejection of evidence, or any other ruling which may be reviewed by a motion for ajiew trial, such exception need not be reduced to writing immediately, but the party taking it may wait until the trial is concluded, and then present his motion for a new trial, and if it is overruled, may then obtain leave to file a bill of exceptions within a specified time, in which all rulings made and exceptions reserved in the course of the trial may be in- cluded.' But it is only exceptions to rulings which may prop- erly be assigned as reasons for a new trial, and which are so 1 American, etc., Bronze Co. v. * R. S. 1894, § 638. Clark, 123 Ind. 230; Evansville, etc., ^ Section 33, ante. R. Co. V. Maddux, 134 Ind. 371. «Hoflman v. Henderson, 145 Ind. = Habbe v. Viele, 148 Ind. 116, 126. 613; Bement v. May, 135 Ind. 664; ' Bush V. Barkman, 15 Ind. App. Radabaugh v. Silvers, 135 Ind. 605. 407. ' Hoffman v. Henderson, 145 Ind. § 55 PRESENTATION OF OBJECTIONS. 81 assigned in the motion, that may be included in the bill of ex- ceptions filed after the motion for a new trial is overruled. An exception to the ruling on a motion to require that the complaint be separated into paragraphs/ or made more spe- cific/ or an offer to file additional pleadings/ or on any other rule relating to the pleadings, or made before the trial commenced,* must be reduced to writing immediately, or leave obtained at that time to reduce it to writing afterward. The grant of time for filing a bill of exceptions made when the motion for a new trial is overruled does not apply to such rulings. But even as to matters which are properly reviewed by the motion for a new trial, an exception must be shown to have been taken at the time the ruling was made. Time may be given for reduc- ing an exception to writing, but not for taking the exception itself .° Not only is an exception to the rulings reviewed by the motion for a new trial necessary, but an exception must also be taken to the ruling on the motion for a new trial. ° This exception should be recited in the order-book entry which state? that the court overruled the motion for a new trial.' A proper form for showing the exception is the recital, immediately after the statement that the court overrules such motion, " to which ruling the plaintiff (or defendant) excepts." § 55. Effect of sustaining motion for new trial. — ^The actual granting of a new trial supersedes the effect of the former trial and wipes out the verdict and all rulings and exceptions which preceded it, thus placing the parties in the same position as if no trial had been had.* If judgment had been pronounced before the 613; Smith v. FJack, 95 Ind. 116; Bal- = Sohn v. Marion, etc., G. R. Co., 73 timore, etc., E. Co. v. Countryman, 16 Ind. 77; R. S. 1894, § 638. Ind. App. 139. 6 Fletcher v. Waring, 137 Ind. 159, ' Hoffman v. Henderson, 145 Ind. 168 ; Indiana Imp. Co. v. Wagner, 138 613. Ind. 658; Henley v. McNoun, 76 Ind. ^Baltimore, etc., R. Co. v. Country- 380. man, 16 Ind. App. 139. 'Indiana Imp. Co. v. Wagner, 138 3 Smith V. Flack, 95 Ind. 116. Ind. 658. ^Pitzerv. Indianapolis, etc., R. Co., 'Louisville, etc., R. Co. v. Miller, 80Ind. 569; Boyce V.Graham, 91 Ind. 141 Ind. 533, 539; State v. Templin, 420. 122 Ind. 235; E. S. 1894, § 1910. 6 — App. Practice. 82 APPELLATE PRACTICE. §55 motion was made, granting a new trial vacates the judgment/ In criminal cases the statute expressly forbids any reference to the former verdict at the second trial, either in the evidence or argument/ Since the only effect of granting a new trial is to put the parties in the same position as if there had been no trial, granting a new trial is seldom available error to reverse a judgment on appeal.' In order to procure the reversal of a judgment for this cause, it should be made to appear that there was a plain abuse of judicial discretion in granting a new trial or that flagrant injustice was done to the complaining party, or a very strong case for relief should be presented.' Where the complaining party himself asked for the new trial, he will not be heard to complain of the action of the court in grant- ing it,° since a ruling which the appellant procured the court to make is never available to him as reversible error.' 1 Colchen v. Ninde, 120 Ind. 88. 2 E. S. 1894, § 1910. By asking for a new trial the defendant waives Ms constitutional privilege not to be placed a second time in jeopardy. Ex parte Bradley, 48 Ind. 548. ' Earner v. Bay less, 134 Ind. 600 ; Western U. Tel. Co. v. Kilpatrick, 97 Ind. 42 ; Fitzpatrick v. Papa, 89 Ind. 17; Waddle v. Megee, 81 Ind. 247; Daggett V. Flanagan, 78 Ind. 253; Cleveland, etc., E. Co. v. Davis, 10 Ind. App. 342. *Barner v. Bayless, 134 Ind. 600, and cases cited. Section 282, post. ^Louisville, etc., E. Co. v. Miller, 141 Ind. 533. * Section 255, post. CHAPTER 5. JURISDICTION OF SUPREME AND APPELLATE COURTS. S56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. Territorial limits of jurisdiction of courts. Organization and customs of courts. Jurisdiction of supreme court is general. Supreme court has jurisdiction of interlocutory appeals. Original jurisdiction of supreme court. Proposed amendment to the constitution. General classes of cases in which appellate court is for- bidden jurisdiction. Jurisdiction of foreclosure of statutory liens. Appeals in prosecutions for mis- demeanors. Appeals in cases originating be- fore a justice of the peace. Appeals in actions seeking re- covery of money where the amount in controversy does not exceed $3,500. Actions in replevin. Actions between landlord and tenant. Claims against decedents' es- tates. Exceptions filed to reports of administrators, executors or guardians. 71. Appointment of administrators, executors and guardians. Eemoval of administrators, ex- ecutors or guardians. Appeals in cases of bastardy. Jurisdiction of main issue car- ries with it incidental matters. Appeals involving constitu- tional questions. Appeals in cases of equitable jurisdiction. Appeals involving title to real estate. Appeals from convictions of felony, habeas corpus cases, and other cases not enumer- ated. ' Transfer of cases from one court to another. Appellate court is sovereign where it has jurisdiction. 70. 72. 73. 74. 75. 76. 77. 78. 79 80. § 56. Territorial limits of Jurisdiction of courts. — The con- stitution declares that the supreme court shall have jurisdiction, co-extensive with the limits of the state, in appeals and writs of error, under such regulations and restrictions as may be pre- scribed by law ;' and the appellate court is given exclusive 'Const., art. 7, § 4; (83) R. S. 1894, § 164. 84 APPELLATE PRACTICE. § 57 jurisdiction in certain classes of cases over appeals from the circuit, superior and criminal courts throughout the state.' The boundaries of the state, as declared by the constitution, consist of certain lines, including the Wabash river for a con- siderable distance on the western side, and the Ohio river across the southern end of the state, ^ and it is declared that the state of Indiana shall possess jurisdiction and sovereignty co- extensive with such boundaries, "and shall have concurrent jurisdiction in civil and criminal cases with the state of Ken- tucky on the Ohio river and with the state of Illinois on the Wabash river, so far as said rivers form the common bound- ary between this state and said states respectively.'" Under this provision of the constitution and of the statutes passed in pursuance thereto,' it is held that the courts of counties border- ing on the Ohio river have concurrent jurisdiction with the courts of Kentucky, both in criminal prosecutions for acts done on the river opposite such county, ° and in civil actions for torts committed on the river. ° Of course, the jurisdiction of the supreme and appellate courts has as great territorial extent as that of the courts whose judgments they have authority to review. § 57. Organization and customs of courts. — The judicial power of the state is vested in the supreme court, in circuit courts, and in such other courts as the general assembly may establish.' It was under the authority conferred by the last clause of this section of the constitution that the appellate court was created.' The constitution provides that the su- preme court shall consist of not less than three, nor more than five judges, a majority of whom shall form a quorum; they 1 E. S. 1894, § 1336. « Memphis, etc , Packet Co. v. 'Const., art. 14, § 1; E. S. 1894, Pikey, 142 Ind. 804; Sherlock v. All- §221. ing, 44 Ind. 184; Buskirk's Practice, 'Const., art. 14, § 2; E. S. 1894, 6. § 222. ■ Const., art. 7, § 1 ; E. S. 1894, » E. 8. 1894, § 1648. §161. ^Dugan V. State, 125 Ind. 130; « The act creating the appellate court Welsh V. State, 126 Ind. 71; Carlisle is constitutional. Branson v. Studa- V. State, 32 Ind. 55. baker, 133 Ind. 147, 151. § 57 JURISDICTION OF SUPREME AND APPELLATE COURTS. 85 shall hold their offices for six years, if they so long behave well.' Since 1872 the supreme court has consisted of five judges, but that number has been found inadequate, and an amendment to the constitution has been proposed by which the number of judges may be increased to not more than eleven.^ The number of judges in the appellate court is also fixed at five,' and their term of office at four years.' Each court holds two terms of court in each year, commencing on the fourth Mondays of May and November respectively .° But it has long been the custom of the court to hold regular meetings throughout the year except during a three months ' vaca- tion in the summer. The law requires that one of the judges shall be chosen to preside at each term, but no judge shall be chosen to preside at two terms consecutively, nor until the other judges have each presided one term.* The chief justice so chosen has general control over the business of the court until the close of that term. It has long been the custom of the courts to meet for the purpose of formally opening the courts on "rule day," which is the first Tuesday of the term,' and to hand down a large number of opinions immedi- ately after the formal opening, and then adjourn for the re- mainder of the week. But throughout the remainder of the term (except in the summer vacation), the courts usually hand down opinions and rulings on Tuesdays, Wednesdays, Thursdays and Fridays, of two weeks out of three. The re- mainder of the time is devoted to private consultation and the preparation of opinions in cases in which a decision has been agreed on. The judges seldom sit in public, except for the purpose of hearing oral argurhent. Their consultations are private and their opinions are announced by merely filing them in the clerk's office. The constitution requires that the supreme court shall, upon the decision of every case, give a 1 Const., art. 7, § 2; R. S. 1894, 'Acts 1899, page 25. § 162. = R. S. 1894, §§ 1325, 1357. 2 Acts 1899, page 574; section 61, ^jj g 1894^ §§1328, 1355. post. 'Rule 16 Sup. Ct. 3 R. S. 1894, § 1336. 86 APPELLATE PRACTICE. § 58 statement in writing of each question arising in the record of such case, and the decision of the court thereon,' and that these decisions shall be published;* and the statute by which the appellate court was created and its duties defined contains like provisions/ The rules of court require that all special motions shall be in writing,* and it has grown to be the cus- tom for matters of all kinds, except the admission of attorneys to the bar, to be brought to the attention of either court by fil- ing an appropriate written statement with the clerk, upon which the court indorses a written statement of its action and returns it to the clerk. One of the customs of the court, which is strictly observed, is that of keeping secret the name of the judge to whom any case has been distributed for consideration or the preparation of an opinion, until that opinion is filed. Any attempt to break through this custom will usually prove futile, and may be severely rebuked. Under the rule of court recently adopted,' requiring the appellant's brief to contain an abstract of the record, causes in which a proper a,bstract is pre- pared will not be distributed, but will be equally open for the consideration of all the judges until a decision is reached, when they will be assigned to one of the judges for the preparation of an opinion.^ § 58. Jurisdiction of supreme court is general.— The su- preme court is given in general terms "jurisdiction in appeals co-extensive with the state."' It follows that the supreme court has jurisdiction of all appeals in which jurisdiction is not expressly denied to it, or expressly conferred on some other tribunal." Different sections of the statute, passed long before the appellate court was created, give an appeal to the supreme court from all final judgments of the circuit and superior courts in civil actions" with certain specified exceptions,' and from any judgment against a defendant in a criminal action,' or from a judgment against the state based on- the insuflSciency ' R. S. 1894, § 165. « Section 236, post. i'B. S. 1894, § 166. ' E. S. 1894, §§ 1316, 164. ' B. S. 1894, §§ 1350, 1360. *Ex parte Sweeney, 126 Ind. 683. < Rule 13 Sup. Ct. ' B. S. 1894, § 744. 6 Rule 22 Sup. Ct. '" R. S. 1894, § 1954. § 59 JUKISDICTION OF SUPREME AND APPELLATE COUBTS. 87 of the pleadings or lack of jurisdiction of the court." These provisions, however, apply only to appeals from judgments of the circuit, superior and criminal courts of the state. Where appeals are taken from judgments of inferior tribunals, such as boards of commissioners, justices of the peace, mayors of cities, or municipal councils, they must usually be taken to the circuit or superior courts, from which a further appeal, in some instances, is allowed to the supreme court. But in brder to determine from what final judgments of the circuit, superior and criminal courts, an appeal lies to the supreme court, it is necessary to determine, first, whether an appeal is given, and second, whether jurisdiction of such appeal has been expressly conferred on the appellate court. If it has not, the supreme court has jurisdiction of the appeal. It should be remembered, in this connection, that appeals are exclusively of statutory origin,^ and that no appeal to either court can be maintained except as given by statute. § 59. Supreme court has jurisdiction of interlocutory ap- peals. — The supreme court is given jurisdiction of appeals from certain interlocutory orders relating to the delivery or surren- der of real or personal property, the granting or dissolving of injunctions, rulings on writs of habeas corpus' and the ap- pointment of a receiver.* No jurisdiction over these matters is conferred on the appellate court by the act creating it, and therefore all appeals from such interlocutory orders must be taken to the supreme court. § 60. Original Jurisdiction of supreme court. — The consti- tution provides that the supreme court shall have such origi- nal jurisdiction as the general assembly may confer.' The legislature has not assumed to confer any original jurisdiction on the supreme court under this provision of the constitution, but it has expressly conferred the power to grant restraining ' E. S. 1894, § 1955. s r_ g_ i894, § 658. ^Hughes V. Parker, 148 Ind. 692; ^R. S. 1894, § 1245. In re Petition of Stroh, 149 Ind. 164; ^ jj_ g_ 1394^ § i64. Elliott's App. Proc, § 75. 88 APPELLATE PRACTICE. § 61 orders and injunctions when necessary for the due exercise of the jurisdiction and powers of the court," and the court has repeatedly entertained applications of this character.'' The general assembly has also provided for the trial of issues of fact in the supreme court under rules to be adopted by it/ and for the compulsory attendance of witnesses, the adminis- tering of oaths, and the punishment by. fine and imprison- ment of any contempt of its process.' It has been suggested that the supreme court might call a jury to try an issue of fact in a matter pending before the court,' but it has never done so. The better opinion would be that all questions of fact per- taining to appeals must be decided by the court itself, ° and no other questions of fact can readily arise under existing laws, as the supreme court has declined to exercise any original ju- risdiction not expressly conferred by statute.' The general assembly has also provided for the issue of writs of mandate and prohibition when necessary for the exercise of its func- tions and powers, but in no other cases.' The supreme court has issued such writs in a number of instances as incident to appeals, but has refused to issue them in all other cases.' § 61. Proposed amendment to the constitution. — An amend- ment to the constitution has been approved by two legisla- tures in succession,'" and will be submitted to a vpte of the people in November, 1900," which provides that the supreme court shall consist of not less than five nor more than eleven judges, a majority of whom shall form a quorum, and they shall hold their offices for six years, if they so long behave well. Any vacancy caused by death or resignation shall be filled by the governor, as is now provided by the constitution; but any increase in the number of judges shall not be filled > R. S. 1894, § 1161. ' State v. Biddle, 36 Ind. 138. 2 Section 259, post. ^E. S. 1894, § 1181. ' B. S. 1894, § 668. ' Section 262, post. *R. S. 1894, § 1327. "Acts 1897-, page 333; Acts 1899, ^ Baskirk's Practice, 117. page 573. 6 Elliott's App. Proc, § 30; Board " Acts 1899, page 560. of Commissioners v. Brown, 14 Ind. 191. § 62 JURISDICTION OF SUPREME AND APPELLATE COURTS. 89 by appointment, but by election at the next general election after any increase is ordered. As the first general election fol- lowing the first session of the legislature at which an increase in the number of judges can be ordered, in case this amend- ment is adopted, will not be held until November, 1902, and the act creating the appellate court has been amended so as to continue it in existence until the first of March, 1903,' it is probable that both courts will continue as they are now con- stituted for at least three years longer.* § 62. General classes of cases in which appellate court is forbidden jurisdiction. — As was stated above, the supreme court has general jurisdiction over appeals, while the jurisdic- tion of the appellate court is special, and is limited to those cases in which jurisdiction is expressly conferred. But there are certain kinds of cases in which the appellate court is ex- pressly forbidden to exercise jurisdiction, although they may otherwise come within the terms of the statute granting juris- diction to it. These classes are, first, all cases where the con- stitutionality of a statute, federal or state, or the validity of an ordinance of a municipal corporation is in question and such question is duly presented;' second, suits in equity,* except as stated in the next section; third, cases where the title to real estate is in issue. ° Whatever may be the general nature of the case, the place of its origin or the amount in controversy, if it comes within any of these classes the appellate court is forbidden to exercise jurisdiction, and an appeal can only be taken to the supreme court. § 63. Jurisdiction of foreclosure of statutory liens. — After the passage of the act creating the appellate court and defining its jurisdiction, a law was passed providing that in addition to the jurisdiction possessed by the appellate court, that court shall have jurisdiction in all cases for the foreclosure or en- forcement of liens of purely statutory origin where the amount in controversy does not exceed the sum of $3,500.^ Under this • Act 1899, page 24. * Section 76, post. ' November, 1899. s Section 77, post. ' Section 75, post. « R. S. 1894, § 1337. 90 APPELLATE PRACTICE. § 64 provision the appellate court is authorized to exercise jurisdic- tion in appeals in many cases which might properly be termed suits in equity.' Thus it exercises jurisdiction in actions for the foreclosure of mechanics' liens/ or drainage assessments ' or street improvement liens,* or laborers' liens on railroads ' or agisters' liens for feeding animals/ and all other liens which are created entirely by statute. But its jurisdiction does not extend to an appeal from a judgment foreclosing a lien that arises by implication of law and is peculiarly of equitable cognizance, such as a vendor's lien.' But the mere fact that some question of an equitable character may inci- dently arise in the consideration of the appeal will not deprive the appellate court of jurisdiction.' Although an action may have been brought for the foreclosure of a statutory lien, if the constitutionality of the statute creating the lien is neces- sarily involved in an appeal from the judgment, jurisdiction of the appeal will be in the supreme court.' § 64. Appeals in prosecutions for misdemeanors. — The first class of appeals of which the appellate court has jurisdiction, embraces all appeals in prosecutions for misdemeanors." Mis- demeanors are defined by the statute" to be all offenses against the criminal law, except those crimes and public offenses which may be punished with death or imprisonment in the state prison, and which are denominated felonies. Misde- meanors are usually punished by fines, or, at most, by im- prisonment in the work-house or jail. The language of the 'Eeichertv. Krass, ISInd. App.348, ^Woodard v. Myers, 15 Ind. App. 355. • 42. , 2 Haskell v. Gallagher, 20 Ind. App. ' Upland Land Co. v. Ginn, 14 Ind. 224; Eeichert v. Krass, 13 Ind. App. App. 431 ; Garard v. Garard, 135 Ind. 348. 15. 3 Morrow v. Geeting, 135 Ind. 322; « Harris v. Howe, 129 Ind. 72; Hu- Louisville, etc., E. Co. v. State, 135 ber v. Beck, 6 Ind. App. 47. Ind. 59. ' Do well v. Talbot Paving Co., 13S « Pittsburgh, etc., E. Co. v. Hays, Ind. 675, 685. 17 Ind. App. 261. "E. S. 1894, § 1336. 5 Dean v. Eeynolds & Co., 12 Ind. " E. S. 1894, § 1642. App. 97 ; Chapman v. Elgin, etc., E. Co., 11 Ind. App. 632. § 65 JURISDICTION OF SUPREME AND APPELLATE COURTS. . 91 statute by which the appellate court is given jurisdiction of appeals in prosecutions for misdemeanors is general, and appeals in such cases can only be taken to the appellate court unless the constitutionality of the statute on which the prose- cution is based should be questioned, since the court has expressly held' that title to land can not be tried in a criminal proceeding,* and such a prosecution could not be a "suit in equity." By reason of the failure of the statute to confer jurisdiction on the appellate court in prosecutions for felony, jurisdiction of all appeals in such cases remains in the supreme court.' Appeals in actions to recover statutory penal- ties and penalties imposed by municipal ordinances must also be taken to the appellate court.* § 65. Appeals in cases originating before a Justice of the peace. — The second class of cases in which the appellate court has jurisdiction embraces all appeals from judgments rendered in cases which originated before a justice of the peace, and in which the amount in controversy, exclusive of interest and costs, exceeds $50.' As no appeal to the supreme court was permitted in actions originating before justices of the peace, where the amount in controversy did not excee'd $50,° the effect of this provision is , to require all appeals in cases which originated before a justice of the peace, in which a recovery of money is sought or obtained, to be taken to the appellate court, unless the constitutionality of the statute is brought in question, or the validity of a municipal ordinance under which one of the parties asserts a right, is assailed, or the title to real estate is brought in question in some appropri- ate manner.' Since a justice of the peace has no jurisdiction of suits in equity," such a suit could not originate before him. ^ Dawson v. State, 52 Ind. 478. for forcible entry and detainer com- * Section 62, ante ; section 77, post. menced before a justice of the peace 'Ex parte Sweeney, 126 Ind. 583, must be appealed under this provis- 588. ion. Duckworth v. Hosier, 129 Ind. * Section 66, posf. 458. = B. S. 1894, § 1336. * Greenwaldt v. May, 127 Ind. 511 ; « R. S, 1894, § 644. Brown v. Goble, 97 Ind. 86. 'See R. S. 1894, § 501. An action 92 APPELLATE PRACTICE. ' § 66 § 66. Appeals in actions seeking recovery of money where the amount in controversy does not exceed $3,500. — The third class of cases that may be appealed to the appellate court em- braces all actions seeking the recovery of a money judgment only where the amount in controversy, exclusive of costs, does not exceed $3,500.' It is evident that actions on accounts and on unsecured notes, bonds, checks, and bills of exchange, and all actions for damages, whether for breach of contract, for personal injuries, or for some other cause, come within this class, unless the amount involved takes them out of it. It is ' also held to embrace an appeal in a proceeding supplementary to execution in aid of the collection of a judgment,' or a pro- ceeding for the assessment of damages for the taking of land by a municipal corporation for use as a street.' Actions to re- cover statutory penalties,* or penalties for the violation of mu- nicipal ordinances,' must also be appealed to the appellate court under this provision, unless they otherwise come within one of the classes of cases in which the appellate court is for- bidden to exercise jurisdiction.^ This is so because actions to recover such penalties ask for the recovery of money only and are in the form of civil actions.' The fact that a suit is against a public officer does not deprive the appellate court of jurisdic- tion over an appeal in an action for the recovery of money only.* If an appeal in the original action must have been taken to the appellate court, an appeal from the judgment pro- nounced in a proceeding to set aside a judgment by default,' or to review a judgment," must be taken to that court. Ev«n I E. S. 1894, § 1366. gle, 73 Ind. 117 ; Gty of Greensburgh ^Harris V. Howe, 129Ind. 72. v. Corwin, 58 Ind. 518; Bogart v. 'City of Terre Haute v. Blake,.186 City of New Albany, 1 Ind. 38; City Ind. 636. of Indianapolis v. Fairchild, 1 Ind. 4 Elliott's App. Proc, § 42. 315 ; City of Indianapolis v. Navin, 6 Elliott's App. Proc, §43. 151 Ind. 139. « Section 62, ante. ' Benson v. Christian, 129 Ind. 535. 'Durham v. State, 117 Ind. 477; 'Dallin v. Mclvor, 140 Ind. 386; Western U. Tel. Co. v. Scircle, 103 Moore v. Horner, 16 Ind. App. 694. Ind. 227; Hardenbrook v. Ligonier, '"Ex parte Kiley & Slatterly, 135 95 Ind. 70; Town of Brookville v. Ga- Ind. 225; Jones v. City of Tipton, 13 § 66 JURISDICTION OF SUPREME AND APPELLATE COURTS. 93 though the title to real estate or the equitable rights of the parties may be involved, if they are raerely incidental to an action for the recovery of money only, the appellate court has jurisdiction.' In determining whether the appellate court has jurisdiction, the amount that is in controversy must first be ascertained. In ascertaining this fact the courts have made use of the following rules: First. When the defendant appeals from a judgment for money only, in an action where he simply denied any liabil- ity, the amount in controversy is the amount of the judgment appealed from.^ Second. Where the defendant files a special answer admit- ting a partial liability to the plaintiff, on appeal from a judg- ment allowing the plaintiff a larger sum, the amount in con- troversy is the difference between the sum admitted to be due and that for which judgment was given. Thus, if the de- fendant admits a liability for $2,000, and judgment is recov- ered against him for $5,000, the amount in controversy is $3,000.' Third. If the defendant not only denies all right of recovery by the plaintiff, but files a cross-complaint asking a judgment in his own favor, the amount in controversy in an appeal by him from a judgment in the plaintiff's favor is ascertained by adding the amount claimed in defendant's cross-complaint to the plaintiff's judgment. This rule has been applied even where one tort was pleaded as a counter claim against another tort, and, therefore, could not by any rule of law be allowed.' The sufficiency of a cross-complaint will not be considered in determining whether the amount in controversy is sufficient to deprive the appellate court of jurisdiction.' Ind. App. 392; Kiley v. Murphy, 7 'See Board of Commissioners v. Ind. App. 239. Kyle, 137 Ind. 421. 'Branson v. Studabaker, 133 Ind. *Lake Shore, etc., E. Co. v. Van 147; Corbin v. Thompson, 141 Ind. Auken, 1 Ind. App. 492. See Wil- 312 ; Lockhart v. Schlotterback, 141 liamson v. Brandenberg, 6 Ind App. Ind. 308. 95. ' Louisville, etc., E. Co. v. Steele, 6 * Wysor v. Johnson, 1 Ind. App. Ind. App. 183. 419. 94 APPELLATE PRACTICE. § 67 Fourth. If the plaintiff should recover a part only of his claim, to which the defendant has interposed a general denial and the plaintiff appeals, the amount in controversy is the difference between that sued for and the judgment recovered.' Fifth. If the amount of plaintiff's damages is fixed by a finding of the court or jury and the plaintiff appeals from the refusal of the court to render judgment in his favor for that amount, the amount in controversy is the damages so found. ^ Sixth. Where the plaintiff fails to recover anything, and appeals, the amount in controversy is the amount of his claim; not necessarily the amount of his demand in the prayer for re- lief, but the amount affirmatively shown to be in controversy by the whole record.' Seventh. If a number of distinct judgments are recovered by different plaintiffs against a single defendant in the same action, they are taken singly in deterniining the amount in controversy in an appeal by such defendant and can not be added together to confer jurisdiction on the supreme court.' In determining the amount in controversy, on appeal, interest is not to be added to the principal of the judgment rendered in the lower court. ° § 67. Actions in replevin. — The fourth class of cases that may be appealed to the appellate court embraces all actions for the recovery of specific personal property.' This class con- sists of what are termed actions in replevin and is clearly de- fined by the words of the statute. It includes all actions of replevin commenced before justices of the peace, even though the value of the property in controversy is less than $50.' The fact that defenses of an equitable nature may have been interposed in the trial of an action of this character does not 'Johnson v. Board, 140 Ind. 152; *See Board, etc., v. Pollard, 147 Biddle v. Pierce, 141 Ind. 148. Ind. 297. ^Buscher v. City of Lafayette, 8 Ind. ^Cincinnati, etc., E. Co. v. Grames, App. 590; Jewell V. Town of Sullivan, 135 Ind. 44. See Kahlv. Madison, 130 Ind. 574. etc.^ Co., 14 Ind. App. 78. 'Breidert v. Krueger, 76 Ind. 55; «R. S. 1894, §1336. Keadle v. Siddens, 131 Ind. 597. 'Enders v. McDonald, 6 Ind. App. 297. § 68 JUKISDICTION OF SUPREME AND APPELLATE COURTS. 95 deprive the appellate court of jurisdiction.' An appeal from an order made by the court directing the disposition to be made of certain articles of personal property in the settlement of a decedent's estate does not come within this class of cases/ as such an order has nothing of the character of a judgment in replevin. § 68. Actions between landlord and tenant. — The fifth class of cases in which the appellate court has jurisdiction embraces all actions between landlord and tenant involving the right to the possession of premises claimed under a lease or held by virtue or color of such a contract.' If an action for the re- covery of the possession of premises under a lease involves no questions except such as arise on the construction of a lease, it may be appealed to the appellate court.* But this provision applies only where possession is claimed under a lease, or is held by virtue or color of such a contract, and does not apply where the relation of landlord and tenant does not exist, or where that relation is repudiated by one of the parties, and title to real estate is put in issue in some appropriate manner.^ But the mere fact that the defendant denied the existence of the relation of landlord and tenant will not deprive the appel- late court of jurisdiction over an appeal from a judgment in defendant's favor, where there was no ajdjudication as to the title of the land.' § 69. Claims against decedents' estates. — The appellate court also has jurisdiction over all cases wherein claims against decedents' estates are allowed or allowance refused.' In one sense such a claim is an action for the recovery of a money judgment only, but this clause extends the jurisdiction of the appellate court to claims against estates without regard to ' Smith V. Downey, 132 Ind. 83 ; Ex * Barrett v. Johnson, 2 Ind. App. parte Sweeney, 126 Ind. 583, 592. See 25, 30. Chicago, etc., R. Co. v. Towle, lOInd. =Ex parte Sweeney, 126 Ind. 583,, App. 540. 592. 2 Rauh V. Weis, 133 Ind. 264. «Corbin v. Thompson, 141 Ind. 312. 3 R. S. 1894, § 1336. ' R. 8. 1894, § 1336. 96 ' APPELLATE PKACTICE. " § 70 amount. The claims allowed or disallowed, as referred to by this act, are only such claims as are required to be filed against decedents' estates and transferred to the issue dockets for trial,' and this provision does not embrace general probate matters.^ § 70 . Exceptions filed to reports of administrators, executors or guardians. — The seventh class of cases that may be appealed to the appellate court embraces all cases wherein exceptions are filed to reports of administrators, executors or guardians of infants or insane persons.' Where exceptions were sustained to the final report of the trustees of a decedent's estate, in which they had allowed themselves an exorbitant compensa- tion, the appeal was transferred to the appellate court.* § 71. Appointment of administrators, executors and guard- i » R. S. 1894, § 1336. »R. S. 1894, § 1336. « Ross V. Con well, 7 Ind. App. 875. ' Andis v. Lowe, 8 Ind. App. 687; « R. S. 1894, § 1336. Toledo, etc., R. Co. v. Reeves, 8 Ind. § 73 JURISDICTION OF SUPREME AND APPELLATE COURTS. 97 § 73. Appeals in cases of bastardy. — The tenth class of cases in which the appellate court has jurisdiction is all cases of bastardy. This class embraces a distinct kind of cases as to the nature of which there can usually be no doubt. The jurisdiction of the appellate court, in cases of this kind, is ex- clusive, and any appeals taken to the supreme court in such cases will be transferred to the appellate court.' The appellate court has entertained jurisdiction of a great many cases under this provision of the statute.^ § 74. Jurisdiction of main issue carries with it incidental matters. — Of course the jurisdiction of the appellate court over cases belonging to any of the above classes will be defeated if questions are directly involved therein which the appellate court is expressly forbidden to decide,' but if such forbidden question is merely incidental to the main cause over which the appellate court has jurisdiction, that court has jurisdiction of the entire cause.* Thus, where a' question of title to real estate was incidentally involved, but there was no adjudication as to the title,' and no decree or judgment was pronounced affirm- ing title to be in one party or denying it to be in another,* the appellate court was held to have jurisdiction, over an action by a landlord to recover possession of leased premises in one case,' and over an appeal from a money judgment in another case.' The fact that the defendant interposed an equitable defense to the plaintiff's action was held not to deprive the ap- App. 667; McClelland V. Bristow, 9 136; Moyer v. Backs, 2 Ind. App. Ind. App. 543. 571; State v. Fletcher, 1 Ind. App. > Williams v. State, 180 Ind. 58. 581 ; Marshall v. Bell, 1 Ind. App. ' Dehler v. State, — Ind. App. — , 506. 63 N. E. Eep. 850 ; Gemmill v. State, 16 » Sections 75, 76, 77, post. Ind. App. 154; State v. Christian, 18 'Lockhart v. Schlotterback, 141 Ind. App. 11 ; Henwood v. State, 11 Ind. 308. Ind. App. 636; Beckett v. State, 10 =Corbin v. Thompson, 141 Ind. 312. Ind. App. 408; Goodwine v. State, 5 ^Branson v. Studabaker, 133 Ind. Ind. App. 63 ; State v. Phillips, 5 Ind. 147. App. 122 ; McChesney v. State, 5 Ind. ' Corbin v. Thompson, 141 Tnd. 312. App. 425; Haverstick v. State, 6 Ind. 'Branson v. Studabaker, 133 Ind. App. 595 ; Becket v. State, 4 Ind. App. 147. 7— App. Pkactice. 98 APPELLATE PRACTICE. § 75 pellate court of jurisdiction over an appeal in a replevin case.' The presentation of such a defense was not sufficient to make the action a suit in equity;^ and where a suit was brought on a judgment, the fact that the complaint asked for a continuance of an attorney's lien on the judgment did not change the char- acter of the action, but it remained an action for the recovery of money only, and the appellate court had jurisdiction of an appeal from the judgment rendered therein.' But it is an ancient rule, illustrated by many cases, that if a court obtains jurisdiction for one purpose it will retain it for all purposes,' and where a part of a case is necessarily within the sole juris- diction of the supreme court, that court must decide all ques- tions involved in the appeal.' § 75. Appeals involving constitutional questions.— The appellate court shall not have jurisdiction of any case where the constitutionality of a statute, federal or state, or the validity of an ordinance of a municipal corporation is in question, and such question is duly presented.* It has been repeatedly declared' that it is not in the power of the legislature to make the supreme court inferior in any respect to any other tribunal; that the legislature could not deprive the supreme court of its constitutional power to decide questions of the gravest impor- tance by an ultimate appeal from the highest tribunal which the legislature could create. This is undoubtedly true, but it is pleasant to note that the legislature did not assume nor attempt to exercise any such power in the creation of the appellate court, but has reserved all constitutional questions for the supreme court. Since there can be no divided juris- diction in an appeal and all of the incidents of the. case go to ' Smith V. Downey, 132 Ind. 83. = Johnson v. Board, etc., 140 Ind. 2 Smith V. Downey, 132 Ind. 83. 152* Benson v. Christian, 129 Ind. = Lockhart v. Schlotterback, 141 535. See also Shoemaker v. South Ind. 308. Bend, etc., Co., 7 Ind. App. 102; " Ex parte Sweeney, 126 Ind. 583, Louisville, etc., E. Co. v. Malott, & 591, citing Albrecht v. C. C. Foster Ind. App. 545. Lumber Co., 126 Ind. 318; Keld v. = R. S. 1894, § 1336. Holzman, 93 Ind. 205; Wood v. Os- 'Branson v. Studabaker, 133 Ind.. tram, 29 Ind. 177. 147; State v. Noble, 118 Ind. 350; Ex: § 75 JURISDICTION OF SUPREME AND APPELLATE COURTS. 99 the court to which the case is appealed/ where a question as to the validity of an ordinance^ or the constitutionality of a statute is duly presented, the supreme court has jurisdiction of the whole case.' But in order that the appellate court may be deprived of its jurisdiction for this cause, it is essential that the validity of an ordinance' or a constitutional question should be, as the statute expresses it, "duly presented." Of course, where such a question is put in issue by a plea expressly denying the constitutionality of a statute or the validity of an ordinance,' there can be no doubt as to where the jurisdiction lies, unless such question should be waived by the appellant's failure to discuss it in his brief filed in the supreme court. In case of such a waiver the appeal may be transferred to the appellate court, notwithstanding the trial court was required to pass on a constitutional question.^ But a case may also be taken to the supreme court by raising and discussing a constitutional ques- tion in the briefs of counsel. The rule was thus stated by Judge Elliott :' "Where there is enough in the argument of counsel to indicate that they fairly believe that a constitutional question is involved and alsoto supply a fair reason for that belief, the supreme court has jurisdiction; but there must be argument indicating such belief, and stating reasons for it, as; bald assertions will go for nothing.'" Where the claim is made, in apparent good faith, that the constitutionality of a statute is involved, and the case so presents itself that the appellate court feels in duty bound to pass on the constitu- tionalitj'^ of such statute, one way or the other, in deciding the case, the court will consider the constitutionality of such parte Sweeney, 126 Ind. 583-586; El- 'Dowell v. Talbot Paving Co., 138 liott's App. Proc, §§25, 26. Ind. 675. 'telliott's App. Proc, §36; Exparte * Berkey v. City of Elkhart, 141 Ind. Sweeney, 126 Ind. 583, 591 ; Albrecht 408. V. C. C. Foster Lumber Co., 126 Ind. =City of Indianapolis v. Navin, 151 318; Feder v. Field, 117 Ind. 386; Ind. 139. Field V. Holzman, 93 Ind. 205; Wood « Lewis v. Albertson, — Ind. App. V. Ostram, 29 Ind. 177. — , 53 N. E. Rep. 1071. ^ City of Indianapolis v. Consumers, ' Benson v. Christian, 129 Ind. 535. etc., Co., 140 Ind. 107. - » Benson v. Christian, 129 Ind. 535, 537. 100 APPELLATE PRACTICE. § 75 statute so far involved as to deprive the appellate court of jurisdiction, and to require that the suprenae court shall decide the appeal.' But if the cause can be fully and finally deter- mined without reference to the validity of the statute or ordi- nance which is questioned, then such validity will not be con- sidered involved within the meaning of the statute regulating the jurisdiction of the appellate court. ^ The appellate court is not deprived of jurisdiction to con- strue and apply the constitution, when the validity of a statute is not involved, and a mere suggestion in the briefs of coun- sel that if one construction were given to a statute it would be made to conflict with a certain provision of the state constitu- tion, does not raise a constitutional question so as to deprive the appellate court of jurisdiction.' Where the authority to pass a municipal ordinance is directly involved, the supreme court has exclusive jurisdiction.' But if the objections to the validity of a municipal ordinance only go to matters of form or irregularities in the proceedings of the municipal authori- ties, and not to the power of the municipality to enact such an ordinance, the appellate court has jurisdiction to pass on its validity:' An action on a municipal ordinance may be ap- pealed to the appellate court where the validity of the ordi- nance is not involved.^ And where an appeal involves only the construction of a statute' or of a municipal ordinance,' and not the power of the legislature or municipal authorities to en- act it, the appellate court has jurisdiction. The argument of a constitutional question that will be sufficient to duly present ' Dowell V. Talbot Paving Co., 138 Hammond v. New York, etc., E. Co., Ind. 675; Dodge v.. Morrow, 14 Ind. 5 Ind. App. 526; Bugger v. Hieks, 11 App. 534. Ind. App. 374; New Albany, etc., « Dowell V. Talbot Paving Co., 138 Coke Co. v. Crumbo, 10 Ind. App. Ind. 675 ; Dodge v. Morrow, 14 Ind. 360. App. 534. 'City of Hammond v. New York, s Pittsburgh, etc., R. Co. v. Hays, etc., R. Co., 126 Ind. 597. 17 Ind. App. 261; In re Pittsburgh, 'Pittsburgh, etc., B. Co. v. Haya, etc., R. Co., 147 Ind. 697. 17 Ind. App. 261 ; In re Pittsburgh, « City of Indianapolis V. Consum- etc., R. Co., 147 Ind. 697. ers,' etc., Co., 140 Ind. 107, 112. ^Berkey v. City of Elkhart, HI 5 Pittsburgh, etc., R. Co. v. Hays, 17 Ind. 408. Ind. App. 261, 270, citing City of § 76 JUKISDICTION OF SUPREME AND APPELLATE COURTS. 101 it must be such as to impress the court that a duty arises to pass on and decide it one way or the other. A mere sugges- tion by counsel that "private property can only be taken for a public purpose on just compensation given," as a reason why a certain construction should be given to a statute, does not so present a constitutional question as to require that the appeal shall be sent to the supreme court.' And where a constitu- tional question is not mentioned by counsel on either side in their briefs, but is only raised by another person who, as ami- cus curise, asks that the court will decide it-, such a question is not duly presented, so as to deprive the appellate court of ju- risdiction.^ After a case has been argued before the appellate court and decided by it solely on the merits, a constitutional question can not be raised on a petition for rehearing for the purpose of having the case transferred to the supreme court.' If the case is first appealed to the supreme court, the constitutional ques- tion-must be presented by the briefs filed in that court or it will be deemed waived, and an order of the supreme court, transferring the case to the appellate court, will be taken as an adjudication by it that neither the validity of an ordinance ' nor the constitutionality of a statute' is involved in the appeal, and the order of transfer will be taken as finally settling the question of jurisdiction in favor of the appellate court. ° § 76. Appeals In cases of equitable jiirisdiction. — The second class of appeals in which the appellate court is for- bidden to exercise jurisdiction is "suits in equity,'" mean- ing by that term such cases as were known and recognized, prior to the eighteenth day of June, 1852, as suits of equita- ' In re Pittsburgh, etc., E. Co., 147 ^ Lewis v. Albertson, — Ind. App. Ind. 697. — 53 N. E. Rep. 1071. ' Boyd V. Brazil Block Coal Co., 49 'Lewis v. Albertson, — Ind. App. N. E. Rep. 797. — , 53 N. E. Rep. 1071 ; Town of An- ^ Haas V. City of Evansville, 20 Ind. draws v. Sellers, 11 Ind. App. 301, App. 482, 490. 303 ; Kelley v. City of Crawfordsville, « Griffee v. Town of Summitville, 10 14 Ind. App. 81. Ind. App. 332; Kelley v. City of ' R. S. 1894, § 1336. Crawfordsville, 14 Ind. App. 81. 102 APPELLATE PRACTICE. § 76 tie' recognizance, and wherein specific decrees are appropriate and essential. This provision of the statute was modified to some extent by a later statute giving the appellate court juris- •diction in all cases for the foreclosure or enforcement of liens of purely statutory origin, where the amount in controversy •does not exceed the sum of $3,500.' The question as to what are suits in equity within the meaning of this provision of the statute has been much discussed in cases involving the right to a trial by jury under the statute' by which this right is denied in the same class of cases which are excepted from the jurisdiction of the appellate court. The following rule has been suggested ^ as a test for determining whether a case is a suit in equity so as to deprive the appellate court of jurisdic- tion : " Where a specific decree is required, jurisdiction is in the supreme court."' The maxim is that " equity acts specific- ally," and where a specific decree is required there is au ex- ercise of equity jurisdiction, and necessarily the main feature of the case is equitable, and as such controls the incidents.' If the court makes or refuses to make, when asked, an order to do or refrain from doing some specific act, as distinguished from a personal judgment for a sum of money, or other legal relief, the case must be treated as a suit in equity. The su- preme court has exclusive jurisdiction of appeals in all such cases,* except proceedings for the foreclosure of statutory liens as above stated.' Whenever it is sought to enforce a lien aris- ing out of the principles of equity, the jurisdiction on appeal is in the supreme court.' Among the cases which have been 1 E. S. 1894, § 1337 ; section 63, o>i«e. Malott, 6 Ind. App. 545; Huber v. ' R. S. 1894, § 412. Beck, 6 Ind. App. 47 ; Powell v. Ben- 3 Elliott's App. Proc, § 38. nett, 4 Ind. App. 112. « Elliott's App. Proc, § 38. ' Bozarth v. McGillicuddy, 19 Ind. 5 Brighton v. White, 128 Ind. 320, App. 26,31; Eeichertv. Krass, 13Ind. 324; Shoemaker V. South Bend, etc., App. 348. Co., 7 Ind. App. 102; Louisville, etc., « Premier Steel Co. v. Yandes, 6 Ind. R. Co. V. Malott, 6 Ind. App. 545. App. 345 ; Beach v. Bell, 6 Ind. App. «Garard v. Garard, 135 Ind. 15; 152; Scanlin v. Stewart, 6 Ind. App. Shoemaker V. South Bend, etc., Co., 7 151; Huber v. Beck, 6 Ind. App. 47; Ind. App. 102; Miller v. Rapp, 7 Ind. Upland, etc., Co. v. Ginn, 14 Ind. App. App. 89; Louisville, etc., R. Co. v. 431. § 76 JURISDICTION OF SUPREME AND APPELLATE COURTS. 103 held to be suits in equity within the definition given in tiiis statute are suits to cancel deeds' and mortgages/ actions to set aside fraudulent conveyances/ or to obtain relief from fraud of any kind,* suits, for a dissolution or partnership and an ac- counting/ applications for an injunction/ or for a temporary injunction or restraining order/ and suits to declare a trust in the proceeds of the sale of real estate.' An appeal from a de- cree of divorce, and for alimony must also be taken to the supreme court.' Among the equitable liens over actions to foreclose which the appellate court is forbidden to exercise jurisdiction are mortgages on real estate" or personal property/' vendors liens/^ and the lien of a trustee under a mortgage for compensation and his expenses." An action by a purchaser of land to en- force a vendee's lien for the purchase-money paid, in case the owner refuses to execute a conveyarice, is of purely equitable jurisdiction," and an appeal in such a case must be taken to the supreme court. It is held that a paragraph stating a cause of action at law may be joined with a paragraph of com- plaint in which an equitable cause of action is stated." But if a question of equitable jurisdiction were directly involved in 1 Monnett v. Turpie, 132 Ind. 482. « Garard v. Garard, 135 Ind. 15, 18. 2 Johnson v. Johnson, 115 Ind. 112. 'Pettit v. Pettit, 6 Ind. App. 346. » Hornbrook V. Powell, 146 Ind. 39 ; " Brighton v. White, 128 Ind. 320; Hendricks v. Frank, 86 Ind. 278; Eariden v. Eariden, 129 Ind. 288; Evans v. Nealis, 87 Ind. 262; Miller Laverty v. State, 109 Ind. 217; Car- V Evansville National Bank, 99 Ind. michael v. Adams, 91 Ind. 526; Kedy 272; Pettit v. Pettit, 6 Ind. App. 346; v. Kramer, — Ind. App. — , 28 N. E. Lemster v. Warner, 7 Ind. App. 147. Eep. 1121. * Israel v. Jackson, 93 Ind. 543; " Henley, J., in Diggs v. Way, Hendricks v. Frank, 86 Ind. 278. Ind. App. , 54 N. E. Eep. 412. 'Miller v. Eapp, 7 Ind. App. 89; "Upland, etc., Co. v. Ginn, 14 Ind. Powell V. Bennett, 4 Ind. App. 112; App. 431; Scanlin v. Stewart, 6 Ind. McBride v. Stradley; 103 Ind. 465. App. 151. * Louisville, etc., E. Co. V. Malott, 6 "Premier Steel Co. v. Yandes, 6 Ind. App. 545; Shoemaker v. South Ind. App. 345. Bend, etc., Co., 7 Ind. App. 102 ; Pence " Coleman v. Floyd, 131 Ind. 330. V. Garrison, 93 Ind. 345 ; Helm v. First '= Field v. Brown, 146 Ind. 293 ; E. National Bank, 91 Ind. 44. S. 1894, § 412. 'Hopkins v. Greensburg, etc., Co., 46 Ind. 187. 104 APPELLATE PRACTICE. § 77 the appeal, it must, of course, be taken to the supreme court which alone has jurisdiction to pass on questions of that kind. The same rule applies where an appeal is taken from a judgment granting an injunction and damages, or giving a personal judgment and decreeing a sale of mortgaged property to pay a debt. As the appellate court is forbidden to exercise jurisdiction over a portion of such case, the whole case must be appealed to the supreme court. ^ § 77. Appeals involving title to real estate. — The third class of cases in which the appellate court is expressly for- bidden to exercise jurisdiction consists of cases where the title to real estate is in issue. ^ Under this provision of the statute there are certain classes of actions, such as suits in ejectment and to quiet title, which are readily seen to be within the ex- clusive jurisdiction of the supreme court. But it is possible to put title in issue so that a judgment, which, in form, gives some other relief, such as a recovery of damages, may amount to an adjudication of title. Where title is so in issue and is determined by the judgment, an appeal from such judgment must be taken to the supreme court.' An effective practical test for determining whether title is in issue within the mean- ing of this law has been suggested as follows: "Is the effect of the judgment appealed from such as to divest one of the parties of title or to invest one of them with title?"* Thus, an -action of trespass for injuries done to land by a neighbor's hogs and cattle has been held within the jurisdiction of the supreme court, where title to the land was put in issue by appro- priate pleadings.^ The court said that a party may not be bound to put title in issue, and yet he may voluntarily make it an issue in the case; and when he does so, an appeal from the judgment must ba taken to the supreme court. ° > See Ex parte Sweeney, 126 Ind. 583, 591, and cases cited; section 74, ante; Oarmichael v. Adams, 91 Ind. 526. 2R. S. 1894, §1336., 'Branson v. Studabaker. 183 Ind. 147, 160. * Branson v. Studabaker, 133 Ind. 147,154. 5 Branson v. Studabaker, 133 Ind. 147. ^Branson v. Studabaker, 133 Ind. 147, 156. § 78 JURISDICTION OF SUPREME AND APPELLATE COURTS. 105 An action to set aside a tax sale of real estate and declare it null and void and to quiet the plaintiff's title must be ap- pealed to the supreme court.' And so must an action to appro- priate land under the power of eminent domain for the use of a railroad,' or for the use of the public as a street.' But an action to recover damages for the appropi'iation of land, whether by a municipal' or private corporation,'' must be ap- pealed to the appellate court, where the only question is the amount of damages to be recovered, and the amount in con- troversy does not exceed $3,500. If the question of title is a mere incidental matter and there is no decree, or no judgment affirming title to be in one of the parties, or denying it to be in one of them, the appellate court will not be deprived of jurisdiction, if the case is otherwise within its jurisdiction.* It should be remembered that it is not questions concerning real estate that will deprive the appellate court of jurisdiction, but that court is only forbidden to exercise jurisdiction where the title to real estate is in issue. An action for forcible entry and detainer which originated before a justice of the peace,' or an action between a landlord and tenant involving the con- struction of a lease, ° does not necessarily involve any question of title to real estate, and the appellate court has jurisdiction over appeals in such actions, unless title is expressly put in issue. § 78. Appeals from convictions of felony, habeas corpus cases, and other cases not enumerated. — The statute must be consulted to determine the jurisdiction of the appellate court, for that court has only such jurisdiction as is expressly con- ' Jones V. City of Tipton, 13 Ind. 141 Ind. 315; Indiana, etc., E. Co. v. App. 392. , Einehart, 14 Ind. App. 587. ^Evansville, etc., E. Co. v. Swift, * Corbin v. Thompson, 141 Ind. 812 ; 128 Ind. 34. Branson v. Studabaker, 133 Ind. 147, ' Eissing v. City of Fort Wayne, 7 154 ; Harris v. Howe, 129 Ind. 72. Ind. App. 103. ' Duckworth v. Hosier, 129 Ind. 458 ; *City of Terre Haute v. Blake, 136 section 65, ante. Ind. 636. 'Barrettv. Johnson, 2 Ind. App. 25; 'Indiana, etc., E. Co. v. Wooters, section 68, araie. 106 APPELLATE PKACTICE. § 78 ferred on it,' but in determining the jurisdiction of the su- preme court a different rule is adopted. That court is the chief repository of appellate jurisdiction, and cases not ex- pressly, or by clear implication, placed within the jurisdiction of the appellate court are within the jurisdiction of the su- preme court if an appeal will lie at all.* So that it is merely necessary to determine that an appeal will lie, and that the case does not come within the jurisdiction of the appellate court to know that jurisdiction belongs in the supreme court. Its jurisdiction embraces not only the classes of cases men- tioned in the statute as being excluded from the jurisdiction of the appellate court, such as cases involving the constitution- ality of a statute or the validity of a municipal ordinance," suits in equity' and actions involving the title to real estate,' and those classes of cases which are clearly excluded by the express mention of cases of a similar kind, such as prosecu- tions for felonies* and actions seeking the recovery of a money judgment only, where the amount in controversy exceeds $3,- 500,' but it also includes all classes of cases not mentioned by the statute which defines the jurisdiction of the appellate court." Acting on this principle, the supreme court has entertained jurisdiction of suits to contest wills' and for the partition of real estate," applications for writs of habeas corpus," proceed- 1 Branson v. Studabaker, 133 Ind. Ind. 366; Bartlett v. Manor, 146 Ind. 147, 153; Heady v. Brown, 151 Ind. 621; Young v. Miller, 145 Ind. 652; 75, 78. Teegarden v. Lewis, 145 Ind. 98; ^ Branson v. Studabaker, 133 Ind. Blough v. Parry, 144 Ind. 463 ; Earick 147, 153; Elliott's App. Proc, §§ 34, v. Ulmer, 144 Ind. 25. 47. " Heady v. Brown, 151 Ind. 75; Kn- ' Section 75, ante. ley v, Oathcart, 149 Ind. 470 ; Green « Section 76, ante. v. Brown, 146 Ind. 1 ; Waymire v. 5 Section 77, ante. Waymire, 144 Ind. 329; School Cor- * Section 64, ante. poration, etc., v. Eusselville Lodge, ' Section 66, ante. etc., 140 Ind. 422; Herrick v. Flinn, 8 Branson v. Studabaker, 138 Ind. 146 Ind. 258. 147. " Scbleuter V. Oanatsy, 148 Ind. 384; 9 Roller V. Kling, 150 Ind. 159; Brown v. State, 147 Ind. 28 ; Clayborn Evansville, etc., Co. v. Winsor, 148 v. Tompkins, 141 Ind. 19; Hussey v. Ind. 682; Harrison v. Stanton, 146 Whiting, 145 Ind. 580. § 79 JURISDICTION OF SUPREME AND APPELLATE COURTS. 107 ings for the location' and vacation of public highways/ for the construction of free gravel roads' and public ditches/ for the annexation' and disannexation* of territory by a municipal corporation, and suits to contest elections,' as well as many other cases in which the appellate court was not expressly given jurisdiction. § 79. Transfer of cases from one court to another. — It is provided by the act creating the appellate court that appeals to said court shall be taken in the manner and with the effect and subject to the same limitations and restrictions provided by law in cases of appeals to the supreme court/ also that the pleadings and practice and proceedings in said court shall be the same as in the supreme court, so far as they are applicable.' It is also provided that in any case wherein an appeal has been taken from a lower court to the appellate court, and the same should have been taken to the supreme court, it shall be the duty of the appellate court of its own motion to cause such case to be transferred to the supreme court ; and in any case where an appeal has been taken to the supreme court, when it should have been to the appellate court, it shall be the duty of the supreme court of its own motion to cause such case to be transferred to the appellate court.'" The same clerk serves both courts," and these provisions of the statute prevent the entitling of a case in the wrong court from proving fatal to an appeal; but a person who carelessly appeals his case to the wrong court may lose all knowledge of what has become of his appeal, and be watching the decisions of that court for it long after it has 'Glassburnv. Deer, 143 Ind. 174; Ind. 565; Hiatt v. Trustees, etc., 152 Bronnenburg v. O'Bryant, 139 Ind. Ind. 570. 17; Campbell V. Fogg, 132 Ind. 1. ^"Woolverton v. Town of Albany, 2 Cook V. Quick, 127 Ind. 477. 152 Ind. 77. 'Thompson V. Goldth wait, 132 Ind. 'Carroll v. Green, 148 Ind. 362; 20 ; Wilson v. McClain, 131 Ind. 335. Weakley v; Wolf, 148 Ind. 208; Crabb «Hockemeyer v. Thompson, 150 v. Orth, 133 Ind. 11. Ind. 176; Sauntman v. Maxwell, — «E. S. 1894,. § 1349. Ind. — , 54 N. E. Rep. 397; Bonfoy 'E. S. 1894, § 1349. V. Goar, 140 Ind. 292; Mills v. Hardy, " R. S. 1894, § 1362. 128 Ind. 311. " R. S. 1894, § 1343. ' Paul V. Town of Walkertown, 150 108 APPELLATE PRACTICE. § 79 been transferred to the other court and decided there. Such a thing has been known to happen. The provisions of the statute creating the appellate court and authorizing the trans- fer to it of cases appealed to the supreme court are constitu- tional and valid.' When an appeal is docketed in the wrong court by mistake of the clerk, although the appeal has been duly taken to the proper court, the cause will also be ordered transferred. Al- though such a case is not within the letter of the statute, it is clearly within its spirit.^ A case transferred by the appellate court to the supreme court may be sent back by that court if the reasons for making the first transfer are not deemed suffi- cient. Thus, where a case was sent by the appellate court to the supreme court because a constitutional question was dis- cussed in one of the briefs, that court sent it back, upon discovering that this brief was filed by a person not a party to the suit." The statute makes the action of the supreme court in transferring a case final,^ and such a transfer will be treated by the appellate court as an adjudication that no question is involved therein except such as come within the jurisdiction of the appellate court, ^ which will retain jurisdiction, notwith- standing the parties attempt to present a constitutional ques- tion,* or to show that the action was really a suit in equity,' or otherwise not within its jurisdiction. The decision of any question by the supreme court in making the transfer is final, and is binding on the appellate court in its consideration of the case.' There is no express provision for compelling the appellate court to transfer a case to the supreme court in case it should refuse to do so, but the supreme court has entertained a peti- tion for a writ of mandate to compel the appellate court to cer- 1 Branson V. Studabaker, 133 Ind. ^ Q^iffee v. Town of Summitville, 10 147, 152. Ind. App. 332- 2 City of Huntington v. Burke, 139 « Lewis v. Albertson, — Ind. App. Ind. 162. — , 53 N. E. Rep. 1071. 'Boyd V. Brazil Block Coal Co., 49 'Town of Andrews v. Sellers,ll Ind. N. E. Rep. 797. App. 301. * E. S. 1894, § 1362. ' Kelley v. City of Crawfordsville, 14 Ind. App. 81. § 80 JURISDICTION OF SUPREME AND APPELLATE COURTS. 109 tify a case to it for consideration and decision.' The writ was denied in the cases cited on the ground that those cases were within the jurisdiction of the appellate court.' The statute re- quires the appellate court to be governed in all things by the law as declared by the supreme court, and provides that in any case pending in the appellate court, in which that court shall conclude that any decision of the supreme court ought to be overruled or modified, it shall be the duty of the judges to transfer such cause, with their opinion of what the law should be held to be, to the supreme court, which shall thereupon have jurisdiction of and decide the entire case the same as if it had original jurisdiction thereof, and may either modify, over- rule or affirm its former decision, as it may deem right.' Un- der this provision of the statute, the appellate court has trans- ferred a case to the supreme court,' which, in response to the recommendation of the appellate court, overruled two of its earlier decisions. ° Objections to the jurisdiction of either court over the subject-matter of an appeal may be presented at any time, and are not waived by a failure to present them on first appearing to prosecute or defend the appeal.* § 80. Appellate court is sovereign where it has jurisdic- tion. — The- statute declares that a judgment of the appellate court shall have the same effect as a like judgment of the su- preme court.' It is accordingly held that the written opinion of the appellate court in a case will remain the law of that case, which the supreme court will not venture to alter in the event of a subsequent appeal of the same case to it,' even though it would have declared the law differently if the same 'In re Pittsburgh, etc., R. Co., 147 ^McFarlan Carriage Co. v. Potter, Ind. 697 ; Ex parte Kiley , 135 Ind. 225. Ind. — , 53 N. E. Bep. 465. ^^In re Pittsburgh, etc., R. Co., 147 « Heady v. Brown, 151 Ind. 75, 78; Ind. 697; Ex parte Kiley, 135 Ind. In re Pittsburgh, etc., R. Co., 147 Ind. 225. 697. 'R. S. 1894, § 1362. ' 'R. S. 1894, § 1350. ' McFarlan Carriage Co. v. Potter, 'James v. Lake Erie, etc., R. Co., 21 Ind. App. 692. 148 Ind. 615. 110 APPELLATE PRACTICE. § 80 questions had been presented in a different case.' The stat- ute requires that the appellate court shall be governed in all things by the law as declared by the supreme court, and it shall not directly or by implication reverse or modify anv de- cision of that court.^ This provision does not make it in any sense subject to the direction of the supreme court, but is only a declaration of the duties of the appellate court, which is en- tirely sovereign and independent in the decision of cases within its jurisdiction.' ' In the case cited the appellate court had rendered a decision,* which the appellees asserted was in con- flict with a prior decision of the supreme court,' for which reason they applied for a writ of certiorari to review ' its de- cision. The supreme court said that while the appellate court might be restrained from deciding cases in which it had no jurisdiction, if it has jurisdiction of an appeal, it has full power to render final judgment in such appeal, irrespective of the kind of decision that may be made. Having the power to decide, the court may decide wrong as well as right.* The petition for a writ of certiorari was dismissed. The court said that the rule of decision laid down by the statute was meant only to govern the consciences of the jiidges of the appellate court, who were given full authority to determine whether their decisions would conflict with a former decision of the su- preme court, and that it must be presumed that the judges would do their sworn duty by rendering a decision which would not so conflict; but in case they fail to do so the only appeal that can be taken is to the " forum of conscience and to the judgment of the people, from whom all authority, legis- lative, executive and judicial, is derived." 'James v. Lake Erie, etc., E. Co., * Gates v. Newman, 18 Ind. App. 148 Ind. 615; Board of Commission- 392. ers V. Bonebrake, 146 Ind. 311. 'Goble v. Dillon, 86 Ind. 327. ' R. S. 1894, § 1362. 'Newman v. Gates, 150 Ind. 59. 'Newman v. Gates, 150 Ind. 59. CHAPTER 6. FROM WHAT COURTS AND WHAT JUDGMENTS AN APPEAL LIES. §81. Courts from which appeal lies §85. Appeals from orders for surren- to supreme or appellate court. der of possessionof real estate. 82. "What judgments are and what 86. Appeals from orders in injunc- are not final. tion proceedings. 83. What orders concerning receiv- 87. Appeals in habeas corpus cases. ers may be appealed from. 88. No appeal unless covered by 84. Appeals from orders for sur- the express provisions of the render of personal property statute. or rights therein. 89. Appeals where less than |50 is involved. § 81. Courts from which appeal lies to supreme or appellate court. — Appeals will lie to the supreme and appellate courts from all courts of superior original jurisdiction throughout the state, and from them only. That is, from the circuit courts of the different counties in the state,' and from the superior courts,^ and criminal courts,' of the different counties in which they have been organized; but appeals will not lie to the supreme court from decisions of justices of the peace, boards of commissioners, boards of town trustees, city councils, mayors, police judges, and other inferior tribunals. The right- of appeal is exclusively statutory and exists only as given by statute,' and, as the statutes granting appeals from inferior tri- bunals of different kinds usually provide for appeals to the circuit, superior or criminal courts, cases appealed under their 'R. S. 1894, §§642, 644, 658, 1245, 'Whittem v. State, 36 Tnd. 196; 1954, 2609. Hughes v. Parker, 148 Ind. 692; Sul- 2 Burns' Supp. 1897, §§1413, 1426u, livan v. Haug, 82 Mich. 548; Hayes 4626x1; Acts 1875, p. 58, §22; Acts v. Missouri, 120 U. S. 68; Orear v. 1877, p. 46, § 22 ; Acts 1877, p. 55, § 22 ; State, — Ind. App. —,53 N. E. Eep. Acts 1881, p. 97, §22. 249; Elliott's App. Proc, §75. »R. S. 1894, §1954. (Ill) 112 APPELLATE PRACTICE. § 82 provisions can not be taken elsewhere. The only way that cases originating in inferior tribunals can be appealed to the supreme or appellate court is to take them by appeal or other- wise to a circuit, superior, or criminal court, and obtain its decision on the questions involved and then appeal from that.' But it is within the power of the legislature to deny an appeal altogether,' or to permit an appeal to the circuit or superior court and make its decision final, as is done in cases originat- ing before a justice of the peace, where the amount in contro- versy, exclusive of interest and costs, does not exceed $50.' And where a city council or other inferior tribunal is given authority to decide a question, and no appeal is provided for by statute, its decision is final, and conclusive.' § 82. What judgments are and what are not final— The civil code gives an appeal to the supreme or appellate court from final judgments only,' though special provision is made for appealing from certain interlocutory orders ;° and it has long been a general rule in the courts that appeals will lie only from final judgments in the absence of a special provision to the contrary.' The latter rule applies to criminal' as well as civil cases, and not even an express agreement of the prosecuting attorney can confer authority to appeal from an interlocutory judgment in a criminal case." It is, therefore, important to understand clearly what is a "final" judgment; for any appeal not taken under the special provisions of the statute providing for appeals from interlocutory orders will be dismissed, unless the judgment from which it is prosecuted is a final judgment." 'See Ford v. Ford, 110 Ind. 89. State v. Evansville, etc., R. Co., 107 = Hughes V. Parker, 148 Ind. 692; Ind. 581 ; Wingo v. State, 99 Ind. 343; Sims V. Hines, 121 Ind. 534, 536, and State v. Spencer, 92 Ind. 115; Farrel authorities cited. ' v. State, 7 Ind. 345. 8 E. S. 1894, § 644. ' Wingo v. State, 99 Ind. 343. «Sims V. Hines, 121 Ind. 634; "Keller v. 'Jordan, 147 Ind. 113;, Hughes V. Parker, 148 Ind. 692. Home Electric, etc., Co. v. Globe, 5 R. S. 1894, § 644. etc.j Co., 145 Ind. 174; James v. Lake 6R. S. 1894, §§ 658, 1245. Erie, etc., R. Co., 144 Ind. 630; Mas- ' Elliott's App. Proc, § 80. ten v. Indiana, etc., Co., 19 Ind, App. SErganbright v. State, 148 Ind. 180; 633 ; Ray v. Moore, 19 Ind. App. 690. § 82 FROM WHAT COtJETS AND JUDGMENTS APPEAL LIES. 113 A final ju^dgment is one which determines the rights oi the parties in the suit, or a distinct and definite branch of it, and reserves no further question or direction for future determina- tion.' But no order is final in such a sense as to constitute a final judgment unless it disposes of the main case, so far as there is power in the trial court to decide on the questions pre- sented by the issue. ^ In order to better understand what is a final judgment it may be well to notice what judgments and orders have been held not to be final judgments from which an appeal would lie.' Thus, an order sustaining or overruling * a demurrer to the complaint, or refusing to quash an indict- ment," or quashing a single count of an indictment,^ or sus- taining a demurrer to the evidence,' must be followed by a judgment making a final disposition of the case before an appeal can be taken. Stating conclusions of law in favor of a party on a special finding of the facts does not give his adversary a right to appeal until judgment is formally entered.* And orders made in the settlement of a guardianship can not be appealed from until the guardian is finally discharged.' An appeal will not lie from an order vacating or setting aside a judgment, but the aggrieved party must wait till a second judgment has been pronounced, when he may appeal and present any error in vacating the first judgnient." Orders setting aside former or.dersare not, as a rule, final judgments," 'Home, etc., Co. v. Globe, etc., Co., v. State, 8 Ind. 377; Erganbright v. 145 Ind. 174, citing 12 Am. and Eng. State, 148 Ind. 180. Ency. of Law, p. 63, and cases cited; ^ State v. Evansville, etc., R. Co., 1 Black Judg. 21, 31, 46; Thomas v. 107 Ind. 581. , Chicago, etc., R. Co., 189 Ind. 462; 'Thomas v. Chicago, etc., R. Co., Needham v. Gillaspy, 49' Ind. 245. 139 Ind. 462. ^Gilpatrick v. Glidden, 82 Maine *Northcutt v. Buckles, 60 Ind. 577; 201. Elliott's App. Proc, § 81; Backer v. ' James V. Lake Erie, etc., R. Co., Eble, 144 Ind. 287. 144 Ind. 630 ; State v. Herod, 21 Ind. ' Pfeiffer v. Crane, 89 Ind. 485 ; An- App. 177 ; Slagle v. Bodmer, 58 Ind. gevine v. Ward, 66 Ind. 460. 465. " Masten v. Indiana, etc., Co., 19 ' Foster v. Lindley, 20 Ind. App. Ind. App. 633. 155. "Elliott's App. Proc, § 81, citing *Farrellv.State,7Ind.345;"Woolley Wood v. Wood, 51 Ind. 141; Martin- dale V. Brown, 18 Ind. 284. 8— App. Practice. 114 5 APPELLATE PRACTICE. § 82 because such orders usually leave the case open for further proceedings. For the same reason a conditional judgment as- sessing a fine for contempt of court, but reserving the right to remit the fine before the final disposition of the cause, can not be appealed from;' but where the party adjudged guilty of con- tempt is ordered to be imprisoned an appeal will lie.* Neither orders admitting or refusing to admit parties,' or requiring a party to produce papers or documents for inspection,' or grant- ing or denying a continuance,' nor any other orders made in the progress of the trial, can be appealed from which do not come within the terms of the statute granting appeals from in- terlocutory orders. Of course exceptions may be saved to all objectionable rulings, and they may be urged as reasons for re- versing the judgment after a judgment has been entered; but no matter how clearly or decisively an order may indicate what the final judgment will be, no appeal can be prosecuted until the judgment has been entered.* And even though judgment was entered, an appeal will not lie if it was not entered at the proper time to make it legally binding. Thus, a judgment which is not fehown to have been entered in term time, in a case where the court had no jurisdic- tion to pronounce judgment in vacation, will not support an appeal.' The judgment must fully dispose of the case as to all ■ of the parties." And where the court sustained the demurrers of part of the defendants to the plaintiff's complaint, and gave judgment against him in their favor for costs, continuing the case as to the other defendants, an appeal by the plaintiff from such judgment was dismissed.' But where the court re- 1 Home, etc., Co. v. Globe, etc., Co., Bead v. Gooding^ Mull & Co., 20 Fla. 145 Ind. 174. 773; Wilson v. City of Wheeling, 19 'McKinney v. Frankfort, etc., R. W. Va. 323; Carpenter v. Eeynolds, Co., 140 Ind. 95. 58 Wis. 666; Wiggins v. McCoy, 87 SRay V. Moore, 19 Ind. App. 690; N. C. 499. Elliott's App. Proc, § 81. * Elliott's App. Proc, § 83. 4 Elliott's App. Proc, § 81, citing 'Backer v. Eble, 144 Ind. 287; City Western TJ. Tel. Co. v. Locke, 107 of Jeffersonville v. Tomlin, 7 Ind.. Ind. 9; Cleveland, etc., R. Co. v. App. 681. Closser, 126 Ind. 348 ; Logan v. Penn- ' « Champ v. Kendrick, 130 Ind. 545. sylvania Co., 132 Pa. St. 403. ' Keller v. Jordan, 147 Ind. 113. = Elliott's App. Proc, § 81, citing § 82 FROM WHAT COURTS AND JUDGMENTS APPEAL LIES. 115 fused to permit a party to intervene in an action, it was held that such refusal was a final judgment.' The fact that final judgment was entered must be shown by the record.^ If the transcript fails to show the judgment by rea- son of oversight or inadvertence on the part of the clerk who prepares it, the appellant must cause it to be incorporated in the transcript- by certiorari, or the lack of a proper judgment will still be fatal to his appeal.' Because an order granting a new trial during the term simply leaves the case open for further proceedings, it is held not to be such a final judgment as may be appealed from,* though an order granting or refusing a new trial upon proper application made after the close of the term at which judgment was rendered is an independent judgment from which an appeal will lie.* If the court neglects to enter a final judgment upon making a ruling adverse to a party which fore- shadows the final disposition of the case, such as sustaining a. demurrer to the complaint in which all the facts on which; plaintiff relies are stated, or overruling a party's motion for judgment on the verdict or finding, he must see that the court goes further and enters a final judgment against him, at least for costs, before he proceeds to take an appeal. If judgment is not entered no appeal can be maintained, even though the court should make an entry that the plaintiff "refuses to plead further and prays an appeal to the supreme court, which prayer the court grants. "° While the statute' provides for taking appeals from interlocutory orders of certain kinds, although they do not make a final disposition of the case in hand, it will be found that every order which can be appealed from does finally determine some right claimed by one party and denied by the other. ' Voorhees v. Indianapolis, etc., Co., ' State v. Spfincer, 92 Ind. 115. 140 Ind. 220. = jjingg ^_ Driver, 89 Ind. 339 ; Har- ^Gray v. Singer, 137 Ind. 257; City vey v. Fink, 111 Ind. 249, 254; Atkin- of Jefferson ville v. Tomlin, 7 Ind. son v. Williams, 151 Ind. 431. App. 681. ' ^ James v. Lake Erie, etc., E. Co., ' City of Jeffersonville v. Tomlin, 7 144 Ind. 630. Ind. App. 681. ' B. S. 1894, §§ 658, 1245. 116 APPELLATE PRACTICE. § 83 § 83. What orders concerning receivers may be appealed from. — The statute provides that in all cases in which a re- ceiver may be appointed or refused the party aggrieved may within ten days thereafter, appeal from the decision of the court to the supreme court without awaiting the final determi- nation of the case.' The time for taking an appeal under this provision of the statute can not be extended by agreement/ and the appeal must be fully perfected by filing the transcript/ and doing all the other acts necessary, within the ten days allowed, or it will be dismissed.* But where the appointment of a receiver is made without notice to an adverse party, and in his absence, and such party appears in court at the earliest opportunity afterward afforded, and makes a proper objection to sueh appointment by a motion to set aside the order appointing the receiver, or in some other proper manner, and duly saves an exception to, the ruling thereon, he may appeal within ten days after such ruling is made.' Where a receiver is appointed in open court after due notice 10 the adverse party, such party must except to the action of the court in making the appointment or he can not present such action for review on appeal.* But where the appointment is made in vacation, without notice to the adverse party, an appeal may be taken and the appointment reviewed, although there is no ^provision in the code for taking an exception in vacation.' And where a party is permitted to intervene after the appointment has been made, he may appeal from the refusal of the court to set aside the appointment, as above suggested.' An appeal from an order appoiriting or refusing to appoint a receiver carries up only the question whether such appointment was properly made or refused,^ and the main case remains in 1 R. s. 1894, § 1245. 149 Ind. 78; Lime City, etc., Assn. v. « Plory V. Wilson, 83 Ind. 391. Black, 136 Ind. 544. ' Vance v. Schayer, 76 Ind. 194. ' Wabash, etc., R. Co. v. Dykeman, « Wabash E. Co. v. Dykeman, 133 133 Ind. 56, 64; Pressleyv. Lamb, 105 Ind. 66. Ind. 171, 189. estate V. Union, etc., Bank, 145 « State v. Union, etc., Bank, 145 Ind. Ind 537. ^Zl . 6 Chicago, etc., E. Co. v. McBeth, 'Naylor v. Sidener, 106 Ind. 179; § 83 FROM WHAT COURTS AND JUDGMENTS APPEAL LIES. 117 the trial court, where the pleadings may be changed or amended before it is brought to trial.' If the sufficiency of the complaint is attacked in such an ap- peal the court will consider its sufficiency only so far as it re- lates to the appointment of a receiver.^ In so far as it demands some other relief its sufficiency can not be questioned." The statute further provides that the authority of a receiver from the order for whose appointment an appeal is taken shall be suspended pending the appeal, if a proper appeal bond is filed.* This provision gives the owner of the property a right to manage it while the appeal is pending, but makes him lia- ble to the court in the same manner that a receiver would have been liable, in case the appeal shall be determined in favor of the receiver. If the party prefers, he may wait until a final decree has been entered in the matter of the receiver- ship and have the order appointing the receiver reviewed on an appeal from that decree.' The remedy by way of an im- mediate appeal from the interlocutory order is given in addi- tion to an appeal from the final judgment. It will be observed that this statute gives an appeal only to the party aggrieved.^ And it has been held' that a per- son can not procure the reversal of an order appointing a receiver on account of irregularities laying it open to an attack by other persons who do not choose to complain of the order, if there is no error which prejudices his own rights.' The ev- idence on which the trial court acted in making the appoint- Wabash R. Co. V. Dykeman, 133 Ind. 'Supreme Sitting, etc., v. Baker, 56 ; Main v. Ginthert, 92 Ind. 180. 134 Ind. 293, 304; Hursh v. Hursh, 99 ' Wabash E. Co. v. Dykeman, 133 Ind. 500. Ind. 56; Naylor v. Sidener, 106 Ind. 'E. 8. 1894, § 1245; Wabash R. Co. 179. V. Dykeman, 133 Ind. 56. ^Goshen, etc., Co. v. City Nat'l = Hutchinson v. First Nat'l Bank, Bank, 150 Ind. 279, 285; Gray v. etc., 133 Ind. 271; Buchanan v. Berk- Oughton, 146 Ind. 285; Supreme Sit- shire Life Ins. Co., 96 Ind. 510. ting, etc., V. Baker, 134 Ind. 293; " E. S. 1894, § 1245. Wabash E. Co. v. Dykeman, 133 Ind. ' Rapp v. Eeehling, 122 Ind. 255. ; 56; Naylor V. Sidener, 106 Ind. 179; * See chapter 20, posf. Hursh V. Hursh, 99 Ind. 500; Main v. Ginthert, 92 Ind. 180. 118 APPELLATE PRACTICE. § 84 ment, whether it consisted of oral testimony or of affidavits can only become a part of the record by being incorporated in a bill of exceptions or a proper order of court;^ and unless such evidence is properly in the record on appeal, the supreme court can not review the action of the lower court in making an appointment which was partly based on such evidence." § 84. Appeals from orders for surrender of personal prop- erty or rights therein. — An appeal may be taken from an in- terlocutory order of a court or judge for the payment of money, to compel the execution of any instrument of writing, or to compel the delivery or assignment of any securities, evidences of debt, documents or things in action.' The law presumes that a party may be seriously prejudiced by being compelled to give property of the kinds enumerated into the hands of an- other who may dissipate it or suffer it to be destroyed before an appeal from a final judgment in the case could afford him relief; or to place his money where, at the best, it would be tied up pending the determination of a long litigation. Under the first clause of the first subdivision of the section cited, it has been held that an appeal is authorized from an order for the payment of money into court in proceedings supplement- ary to execution,' or where a receiver appointed by the court claimed the right to possession of it,' and the statute is broad enough to embrace an appeal from any order requiring a party to make a specific payment of money ,^ though it was clearly not intended to embrace ordinary judgments for money,' and appeals from such judgments must be taken under the general provisions of the civil code. Where, however, the order for the payment of money is made in the settlement of a dece- ' Barnes v. Jones, 91 Ind. 161, 166. * McKnight v. Knisely, 25 Ind. 336. 'Chicago, etc., E. Co. v. McBeth, =Cook v. Citizens' Nat'l Bank, 73 149 Ind. 78; Supreme Sitting, etc., v. Ind. 256. Baker, 134 Ind. 293 ; Naylor v. Side- ^ Pounds v. Cliatham, 96 Ind. 342. ner, 106 Ind. 179. ' Elliott's App. Proc, § 101. 5 E. S. 1894, § 658. § 85 FROM WHAT COURTS AND JUDGMENTS APPEAL LIES. 119 dent's estate/ the appeal must be taken under the special pro- visions of the act governing such cases. ^ The latter clauses of the subdivision of the statute now un- der consideration giving an appeal from orders to compel the execution of any instrument of writing or the delivery or as- signment of any securities, evidences of debt, documents, or things in action, have not been construed by the higher courts; but it is held that this provision has no application to an order requiring a party to produce a document for inspec- tion or to be used as evidence, since such production does not involve a delivery within the meaning of the statute, and no appeal will lie from such an order.' Neither does it apply to an order of court refusing to approve a report of the assignee in a voluntary assignment, and such an order can not be appealed from.' It is important to notice that no appeal is authorized from the refusal of the court to make any of the orders above specified. § 85. Appeals Jtrom orders for surrender of possession of real estate. — The second subdivision of the statute ^ permits an appeal from an order for the delivery of possession of real estate or the sale thereof. The language of the statute is very comprehensive and would seem to permit an appeal from any order of the kinds specified. It has been held that an appeal will lie under this provision from an order of sale in a pro- ceeding for the partition of land made on a report of the commissioners that the land is not susceptible of division, *■ though other cases hold such an order to be a final judgment;' but no appeal can be taken from the order appointing commis- sioners to make partition.' It has also been held that this provision authorizes an appeal from an order for the sale of ^Browning v. McCracken, 97 Ind. 'Cravens v. Chambers, 55 Ind. 5. 279. = E. S. 1894, § 658. 2R. S. 1894, §2609; acts 1899, p. « Hunter v. Miller, 17 Ind. 88; Bene- 397, amending § 2610, R. S. 1894. fiel v. Aughe, 93 Ind. 401. 'Western U. Tel. Co. v. Locke, 107 'Kreitline v. Franz, 106 Ind. 359; Ind. 9 ; Taylor v. Board, etc., 120 Ind. Fleenor v. Driskill, 97 Ind. 27, 34. 121; Cleveland, etc., E. Co. v. Clos- 'Jackson v. Myers, 120 Ind. 411, ser, 126 Ind 348, 363. 504 ; Davis v. Davis, 36 Ind. 160 ; Cles- 120 APPELLATE PRACTICE. § 86 real estate in a suit by the administrator of the deceased owner's estate to subject it to sale for the payment of the' decedent's debts.' § 86. Appeals from orders in injunction proceedings.— The third subdivision of the statute granting appeals from inter- locutory orders provides for an appeal from an order granting or dissolving, or overruling a motion to dissolve an injunction in term, and granting an injunction in vacation.^ It is im- portant to notice that this section does not authorize an appeal from the refusal of the court to grant a temporary injunction or restraining order before final judgment, and such an appeal will be dismissed.' In construing this provision of the statute, the supreme court on one occasion said: "Before an appeal lies there must be either an injunction granted in term or va- cation, or an injunction must be dissolved in term, or a motion to dissolve an injunction must be overruled in term. No ap- peal lies from the refusal of the judge in vacation to grant an injunction, or for dissolving in vacation an injunction, or for overruling in vacation a motion to dissolve."* The court held in the case cited, as has been held in others, ° that there is a material distinction between a restraining order and an in- junction. The restraining order is limited in its operation and extends only to such reasonable time as may be neces- sary to give notice to the opposite party of the application for an injunction, and ceases to be effective as soon as the defendant can be brought into court by such notice,* while a temporary injunction can only be issued upon notice and hear- ing and remains binding until set aside or made permanent by the court upon a further hearing. It was held that no ap- peal could be taken from a temporary restraining order.' But ter V. Gibson, 15 Ind. 10. See Roach = Oglev. Dill, 55Ind. 130; Applegate V. Baker, 130 Ind. 362. v. Edwards, 45 Ind. 329; Cincinnati, 1 Simpson V. Pearson, 31 Ind. 1. etc., Co. v. Huncheon, 16 Ind. 436; 2 R. S. 1894, § 658. Flagg v. Sloan, 16 Ind. 432. 'Ogle V. Dill, 55 Ind. 130. spjeasants v. Vevay, etc.. Turnpike * Pleasants V. Vevay, etc.. Turnpike Co., 42 Ind. 391. Co., 42 Ind. 391 . ' Pleasants v. Vevay, etc.. Turnpike § 86 FROM WHAT COURTS AND JUDGMENTS APPEAL LIES. 121 if the order of court, though it is in form a restraining order, should be made to operate for an unreasonable time (as where it fo'rbade the doing of certain acts until the next term of court, which would not sit for nearly four months), it will be held to be a temporary injunction, and an appeal may be taken from an order in term dissolving it.' It has been held in a number of cases that an error of the court in refusing to dissolve a temporary -restraining order ,^ or temporary injunction,' can only be questioned by an appeal before the close of the term,* and can not be made available to reverse the judgment of the court on the final hearing, because such temporary order or injunction must have been entirely superseded by the judgment appealed from, and thereby ren- dered harmless. But such an error could doubtless be made available, if the appellant could show that it prejudiced his rights under the final judgment. ' An injunction or restrain- ing order is not dissolved, nor is its force and effect impaired by an appeal and the issuing of a supersedeas order, and the subsequent doing of prohibited acts while the appeal is pend- ing may be punished as a contempt of court.* Where an ap- peal is taken from the refusal of the court to dissolve a tempo- rary injunction, the motion to dissolve,' with the grounds on which it is based,' and the ruling thereon and' exception there- to, must be properly shown by bill of exceptions or otherwise.' The main action, including the application for a permanent injunction, is not affected by an order dissolving a temporary injunction, nor by an appeal from such order, and a judgment Co., 42 Ind. 391, 393, citing Woolleyv. 'Zimmerman v. Makepeace, 152 State, 8 Ind. 377 ; Eeese v. Beck, 9 Ind. 199. Ind. 238; Cincinnati, etc., R. Co. v. ^Elliott's App. Proc, § 106. Huncheon, 16 Ind. 436; Ewald v. « Miller v. Burket, 132 Ind. 469; Coleman, 19 Ind. 66; Spaulding v. Central Union, etc., Co. v. State, 110 Thompson, 12 Ind. 477. Ind. 203; State v. Chase, 41 Ind. 356. 'Bronenberg v. Board, etc., 41 Ind. ' Clark v. Shaw, 101 Ind. 563. 502. 8 Heagy v. Black, 90 Ind, 534. ' Becknell V. Becknell, 110 Ind. 42, s^ark v. Shaw, 101 Ind." 563; 54. Heagy V. Black, 90 Ind. 534; Slag'le ' Heagy v. Black, 90 Ind. 534 ; Price v. Bodmer, 58 Ind. 465. V. Bayless, 131 Ind. 437. 122 APPELLATE PRACTICE. § 87 of the supreme court affirming it. The action itself remains in the lower court for further proceedings, and it is error to dismiss it.' If a temporary injunction is granted on conflict- ing affidavits or other evidence, the supreme court will not weigh such evidence to determine whether the order should be dissolved.^ § 87. Appeals in habeas corpus cases. — The fourth subdi- vision of the statute under consideration provides that appeals may be taken from interlocutory orders and judgments upon writs of habeas corpus whether made in term or vacation.' Appeals have been allowed under this section from an order requiring the defendant to produce her grandchild, the plaint- iff's daughter, in court at a certain time,* from the refusal of the court to admit the petitioner to bail,° and in some other instances. It is not necessasy that the record should show a formal judgment in order that such an appeal may be main- tained, but it is sufficient that a decision or ruling against the appellant shall be shown to have been made.° It is not neces- sary that an appeal in a habeas corpus case should be taken under this provision of the statute, but the party may wait until a final judgment has been entered and prosecute his ap- peal from that,' though his failure to comply with this statute as to the time and manner of taking an appeal is a waiver of his right to appeal before final judgment.' As was stated above,' appeals of this kind can only be taken to the supreme court. A habeas corpus proceeding is not a civil action, but must be prosecuted in strict conformity to the statute." In de- 1 Eayle v. Indianapolis, etc., B. Co., v. Walts, 40 Ind. 170 ; Elliott's App. 40 Ind. 347. Proc, § 107. See Schleuter v. Canatsy, 2 Home Electric, etc., Co. v. Globe, 148 Ind. 384; Jones v. Darnall, 103 etc., Co., 146 Ind. 673. Ind. 569. 3 R. S. 1894, § 658. ' State v. Banks, 25 Ind. 495. « Speer V. Davis, 38 Ind. 271. ^ Section 78, ante. 5 Ex parte Richards, 102 Ind. 260; "Hutchinson v. Trauerman, 112 Brown V. State, 147 Ind. 28. Ind. 21; Willis v. Bayles, 105 Ind. «Ex parte Richards, 102 Ind. 260. 363; Milligan v. State, 97 Ind. 355; 'State V. Banks, 25 Ind. 495; Nich- Sturgeon v. Gray, 96 Ind. 166; Mc- ols V. Cornelius, 7 Ind. 611 ; Henson Glennan v. Margowski, 90 Ind. 150, § 88 FROM WHAT COURTS AND JUDGMENTS APPEAL LIES. 123 ciding an appeal in such a proceeding, the supreme court will pass on the sufficiency of the evidence to sustain the finding, if the evidence is before it, without special regard to the find- ing and decision of the court below.' § 88. No appeal unless covered by the express provisions of the statute. — As was stated above,^ the general rule is that appeals can be taken only from final decrees, judgments, and orders, and no appeal can be taken from an interlocutory or- der unless expressly allowed by statute.' In fact, appeals are exclusively of statutory origin, and no appeal can be taken in any case unless there is a statute expressly authorizing it.* It is proper, therefore, to consult the statute in every case be- fore attempting to take an appeal from an interlocutory order or decree. Such an appeal is not authorized by the section of the statute which provides that either party may reserve any question of law decided by the court during the progress of the cause for the decision of the supreme court, and that any question of law so reserved may be taken to the supreme court upon the bill of exceptions showing the decision, or if it arises on demurrer, upon the pleadings involved.^ A question reserved in this manner can be presented to the supreme court only by an appeal taken after final judgment has been pronounced.* § 89. Appeals where less than $50 is involved. — The statutes providing for appeals to the supreme and appellate courts in civil cases' except from their provisions cases origi- nating before a justice of the peace or mayor of a city, where the amount in controversy, exclusive of costs, does not exceed $50, and the validity of an ordinance passed by an incorpo- ' Jones V. Darnall, 303 Ind. 569; Locke, 107 Ind. 9; Elliott's App.Proc, Ex parte Eichards, 102 Ind. 260 ; § 80, 99. Ex parte Kendall, 100 Ind. 599; Ex «In re Petition of Stroh, 149 Ind. parte Walton, 79 Ind. 600. 164; Hughes v. Parker, 148 Ind. 692. ' Section 82, ante. ' R. S. 1894, § 642. ' Taylor V. Board, etc., 120 Ind. 121; « Taylor v. Board, etc., 120 Ind. 121. Cleveland, etc., E. Co. V. Closser, 126 ' E. S. 1894, §§ 644, 1336. Ind. 348, 363; Western U. Tel. Co, v. 124 APPELLATE PRACTICE. ' § 89 rated town or city is not involved. Cq,ses of this kind may be appealed to the circuit or superior court, but its decision is final, and they can not be appealed to a higher court, however important the questions that are involved.' But this exception does not apply to any other actions but those expressly men- tioned, and appeals may be taken from judgments in cases which originated in the circuit court,^ or before a board of commissioners,' however small the amount in controversy. And where something else than money is in controversy, as in an action of replevin for the recovery of specific personal prop- erty,* the limitation as to amount in controversy does not ap- ply, although the action was commenced before a justice of the peace.' ' Clinton Tp. v. DeHaven, — Ind. ' Board of Commissioners v. Bin- App. — , 53 N. E. Eep. 650 ; Winfleld ford, 70 Ind. 208. Tp. V. Wise, 73 Ind. 71; Town of ^Hall v. Durham, 113 Ind. 327; North Manchester v. Oustal, 132 Duckworth v. Hosier, 4 Ind. App. Ind. 8. 267 ; Enders v. McDonald, 5 Ind. App. 8 City of Plymouth v. Milner, 117 297. Ind. 324. * Section 67, ante. CHAPTER 7. PECULIARITIES OF DIFFERENT KINDS OF CASES. § 90. Vacation appeals. § 96. Appeal by reserved question of 91. Term appeals. law — Civil case. 92. Appeals from interlocutory or- 97. Appeal from decision affecting ders are usually term appeals. settlement of estate. 93. Appeals from appointment or 98. General rules as to appeals in refusal to appoint receiver. criminal cases. 94. Appeals in agreed cases. i 99. Appeal by the state in criminal 95. Appeal by reserved question of cases. law — Criminal case. 100. Appeal by the defendant in criminal case. § 90. Vacation appeals. — The most numerous class of ap- peals in civil cases are usually termed vacation appeals, to dis- tinguish them from appeals taken at the term when judgment was pronounced.' But appeals of this kind need not be taken in the vacation of the court. They may be taken at any time within one year from the time the judgment is rendered/ whether court is in session or not. In taking a vacation ap- peal a party is excused from the necessity of filing an appeal bond/ unless he desires a supersedeas order/ but he is required to give notice.' In all that is said with regard to appeals in the following pages reference is had to vacation appeals, unless some other kind of appeal is specified. § 91. Term appeals. — When an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment upon an appeal bond being filed by the appellant with such penalty and surety ' See section 91, post. Euschaupt v. Carpenter, 63 Ind. 359; 2 K. S. 1894, § 645. chapter 14, post. 'Burt V. Hoettinger, 28 Ind. 214; *R. S. 1894, §653. ^ Chapter 13, post. (125) 126 APPELLATE PKACTICE. §91 as the court shall approve, and within such time as it shall direct, payable to the appellee, conditioned as prescribed by the statute.^ The transcript shall be filed in the office of the clerk of the supreme court within sixty days after filing the bond.^ A term appeal can only be effected by a strict compli- ance with the terms of this statute, and the filing of an appeal bond is an essential part of taking such an appeal.^ Where no bond is filed, the appeal must be considered a vacation ap- peal and must be perfected under the rules for taking appeals of that character.* It is necessary that the sureties on the ap- peal bond shall be approved by the court;* but where the bond was filed in open court before the expiration of the term, the approval of the penalty and sureties by the court may be pre- sumed/ Where time is given beyond the end of the term in which to file an appeal bond, the order of court granting such time should specify the penalty of the bond and name the sureties therein." The formal approval of an appeal bond may, how- ever, be waived by the parties.' After an appeal has been prop- erly asked and granted by the court, and a proper order made fixing the penalty and naming the sureties on the appeal bond, it is still necessary that such bond should be filed within the time allowed by the court, and that the transcript should be filed in the office of the clerk of the, supreme court within sixty - days after the filing of the bond, or the appeal can not operate as a term appeal.' The failure of the appellant to file the ap- peal bond within the time allowed by the court, or to file the transcript within sixty days after the bond is filed, does not destroy his right to appeal," but an appeal must then be per- ' E. S. 1894, § 650. ^ McClosky v. Indianapolis, etc., 2 E. S. 1894, § 650. Union, 87 Ind.20; Wilson v. Bennett, 3 Michigan Life Ins. Co. v. Prankel, 132 Ind. 210. 151 Ind. 534. ' Michigan Mutual, etc., Co. v. « Holloran v. Midland E. Co., 129 Frankel, 151 Ind. 534; Elliott's App. Ind. 274; McKinney v. Hartman, 143 Proc, § 246. Ind. 224; Elliott's App. Proc, §§ 247, » Small v. Kennedy, 12 Ind. App. 248. 155 ; Pierce v. Banta, 9 Ind. App. 376; 5 McClosky v.. Indianapolis, etc., Buchanan v. Milligan, 125 Ind. 332. Union, 87 Ind. 20; Michigan Mutual, 'Michigan Mutual, etc., Co. v. etc., Co. V. Frankel, 151 Ind. 534; Frankel, 151 Ind. 534. Wilson V. Bennett, 132 Ind. 210. " K. S. 1894, § 651. § 92 PECULIARITIES OF DIFFERENT KINDS OF CASES. 127 fected under the rules as to notice, filing of transcript, etc., which govern vacation appeals.' § 92. Appeals from interlocutory orders are usually term appeals. — Appeals from interlocutory orders of a court or judge thereof may be taken at the term of court at which the order is made ; or, when made in vacation, the appeal may be taken at the time, or during the next term. The appeal shall not be granted until the appellant has filed an appeal bond as in other cases. ^ The filing of an appeal bond is essential to the granting of all appeals under this section,' and, ordinarily, such appeals are perfected in a manner very similar to the way in which term appeals are taken.' But where the appeal is taken from an order made in vacation, at the time such or- der is made, it is only necessary for the judge to grant an ap- peal and fix the penalty of the appeal bond and the time within which it shall be filed, not extending beyond the close of the next term.^ If the appeal is taken in term the bond must be approved by the court like the bond for a term appeal, but if it is taken at the time from an order made in vacation, the clerk may approve the bond and surety.* Where an interlocu- tory order is made in term no appeal from such order can be prosecuted after the close of that term.' § 93. Appeals from appointment or refusal to appoint receiver. — An appeal from an order appointing or refusing to appoint a, receiver may be taken within ten days.' This requires that the transcript shall be filed in the office of the clerk of the supreme court within ten days after the order appealed from is made,' and, where notice is necessary, that notice should be issued within that time." But if the appeal from the order is taken in term time," or if both parties are 'Michigan Mutual, etc., Co. v. * Miller v. Burket, 132 Ind. 469, 473. Frankel, 151 Ind. 634. 'Zimmerman v. Makepeace, 152 " R. S. 1894, § 659. Ind. 199. ' Miller v. Burket, 132 Ind. 469, 473 ; « R. S. 1894, § 1245. section 169, post. 'Vance v. Schayer, 76 Ind. 194;. ' Baker v. Griffitt, 83 Ind. 411 ; Hursh v. Hursh, 99 Ind. 500. Simpson v. Pearson, 31 Ind. 1. See "Cole v. Franks, 147 Ind. 281. section 105, post. " Cole v. Franks, 147 Ind. 281. ^Natcher v. Natcher (Ind.'), Octo- ber 31. 1899. 128 APPELLATE PRACTICE. §94 present when the appeal is prayed for and granted by the court,' even though the order from which the appeal is taken was made in vacation/ notice of the appeal is unnecessary.' But where a receiver is appointed in vacation, and no notice of an intention to appeal is given at the time, it is necessary that notice of the appeal should be served in the same manner as in other vacation appeals.* Where the appeal is taken from an order appointing a receiver, an appeal bond should be filed, ° upon the approval of which the authority of the receiver will be suspended until the final determination of the appeal.^ If a receiver is appointed in the absence of a party in interest, such party may afterwa,rd petition for leave to intervene, and, upon being permitted to do so, may petition the court to set aside the order of appointment, and may take an appeal from its ruling in case his petition is denied.' § 94. Appeals in agreed cases. — Parties have the right in all cases, either with or without process, by agreement to that effect, to submit any matter of controversy between them to any court that would otherwise have jurisdiction of such cause, upon an agreed statement of the facts, to be made and signed by the parties; but it must appear by affidavit that the con- troversy is real and the proceedings in good faith to deter- mine the rights of the parties.' The statement of the case, the submission and the judgment constitute the record,' and pleadings," and bills of exceptions," are unnecessary, and, if filed, may properly be disregarded. But where the record shows a trial by the court on an issue formed by pleadings filed by the parties, and a general finding in favor of one of 1 Cole V. Franks, 147 Ind. 281. 'State v. Union, etc., Bank, 145 2 Miller v. Burket, 132 Ind. 469. Ind. 537. sOole V. Franks, 147 Ind. 281; » B. S. 1894, § 562. "Wabash R. Co. v. Dykeman, 133 Ind. ' R. S. 1894, § 563. 56; Miller V. Burket, 132 Ind. 469. "Warrick Assn. v. Hougland, 90 * Cole V. Franks, 147 Ind. 281. Ind. 115 ; Day v. Day, 100 Ind. 460. = Wabash R. Co. v. Dykeman, 133 "Citizens' Ins. Co. v. Harris, 108 Ind. 56. Ind. 392. 6 R. S. 1894, § 1245. § 94 PECULIARITIES OP DIFFERENT KINDS OF OASES. 129 such parties, an agreed statement of facts found in the record will be considered as mere evidence.' An agreement that a statement of facts is true does not make an agreed case.' An affidavit that the controversy is real and the proceedings in good faith to determine the rights of the parties is essential to the jurisdiction of the court over an agreed case/ and this affidavit must appear in the record on appeal;* but it need only be made by one of the parties to the action; not necessarily by both.' The proper mode of pre- senting an agreed case for review on appeal, is by an excep- tion to the finding of the court,' and a motion for a new trial is not necessary nor proper.' Even though an agreed case should be defectively prepared, if it was conducted in the trial court on the theory that it was an agreed case and ap- pealed on that theory, the supreme court might consider it as such.' But where the case was heard by the trial court on a mere oral statement of the facts made by the attorney for one of the parties, the judgment rendered thereon will not support an appeal of any kind.' Appeals in agreed cases are governed by the general provisions of the code on the subject of taking appeals as to the time of filing the transcipt and giving notice. Claims against decedent's estates," applica- tions for license to sell intoxicating liquor," and other pro- ceedings under special statutes can not be presented to the court for decision as agreed cases. 'Pennsylvania Co. v. Niblack, 99 ' Myers v. Lawyer, 99 Ind. 237. Ind. 149; Robertson v. Huffman, 101 ^ggotjiy Cottingham, 126 Ind. 431. Ind. 474; Citizens' Ins. Co. v. Harris, * Hawks v. Mayor, 144 Ind. 343; 108 Ind. 392; Witz v Dale, 129 Ind. North v. Barringer, 147 Ind. 224; City 120. of Shelbyville v. Philips, 149 Ind. 552 ; * City of Shelbyville v. Phillips, 149 Geisen v. Reder, 151 Ind. 529. Ind. 552 ; North v. Barringer, 147 Ind. ' Fisher v. Purdue, 48 Ind. 328. 224 ; Wright v. Shelt, 19 Ind. App. 1 ; « Booth v. Cottingham, 126 Ind. 431 ; Reddick v. Board of Commissioners, Robbins v. Swain, 7 Ind. App. 486. 14 Ind. App. 598. ' Geisen v. Reder, 151 Ind. 529. ' City of Shelbyville v. Phillips, 149 •" Henes v. Henea, 5 Ind. App. 100. Ind. 552; Geisen v. Reder, 151 Ind. See Robins v. Swain, 7 Ind. Aiip. 486. 529. " North v. Barringer, 147 Ind. 224. 9 — App. Pkaotice. 130 APPELLATE PRACTICE. S 95 § 95. Appeal by. reserved question of law— Criminal case.— Both the criminal code/ and the civil code/ provide for reserv- ing for the decision of the supreme court a question of law de- cided by the court during the progress of the trial, and for taking an appeal by which the reserved question of law alone shall be presented. But in neither class of cases can questions of fact/ nor questions of mixed law and fact/ be presented to the supreme court for decision under the special provision of these statutes. If a party desires to present such a question, a general appeal should be taken. In case of an appeal from a question reserved on the part of the state, it is not necessary for the clerk of the court to certify in the transcript any part of the proceedings and record, except the bill of exceptions and the judgment of acquittal.^ This provision of the statute would seem to require that everything necessary for a consid- eration of the question reserved should be stated in the bill of exceptions, and that nothing else should be considered in pass- ing on such question. But the supreme court has held that where the question of law reserved is shown by the record proper, no bill of exceptions is necessary/ and that even where the question reserved relates to an instruction which is shown by a bill of exceptions, the supreme court may look beyond the bill of exceptions to the affidavit as copied into the record to ascertain what was the charge of which the appellee was acquitted.' A judgment of acquittal is a necessary part of the record in an appeal by the state on a reserved question of law, and in its absence the appeal can not be sustained.' When the ques- tion reserved is defectively stated, the supreme court may di- 1 R. S. 1894, §§ 1915, 1955, 1956. ' Haney v. Famsworth, 149 Ind.453.. ' R. S. 1894i §§ 642, 643. = R. S. 1894, § 1956. 'State V. Overholser, 69 Ind. 144; « State v. Day, 52 Ind. 483; State v. State V. Campbell, 67 Ind. 302; State Bartlett, 9 Ind. 569. V. VanValkenbiirg, 60 Ind. 302; State 'State v. Vanderbilt, 116 Ind. 11. V. Hall, 58 Ind. 512 ; Fouty v. Mor- « State v. Spencer, 92 Ind. 115 ; State rison, 73 Ind. 333, 342; Woodard v. v. Hallowell, 91 Ind. 876; State v. Baker, 116 Ind. 152 ; Shugart v. Miles, Hamilton, 62 Ind. 409; State v. Hodg- 125 Ind. 445; Summers v. Copeland, in, 139 Ind. 498. 125 Ind. 466, 472. § 96 PECULIARITIES OF DIFFERENT KINDS OF CASES. 131 rect any part of the proceedings and record to be certified to it;' therefore, the fact that the record is imperfect is no reason for dismissing the appeal, but the adverse party should take steps to have the record corrected.^ This provision, however, does not make it the duty of the supreme court to order any part of the proceedings and record to be certified to it, merely because the judges may suspect that the question sought to be reserved is defectively stated.' The court can not judicially know but that the clerk has certified all the record that was made in the case, and the writ of certiorari, can only issue upon motion supported by affidavit, showing a diminution of the record.* It is only by means of a reserved question of law that any question as to the competency of a witness, ° the ad- missibility of evidence,^ the correctness of instructions,' or, in fact, any other question except the sufficiency of the indict- ment or information, or the authority of the grand jury by which the indictment was found,* may be presented for review by the prosecuting attorney. No motion for a new trial is nec- essary to present such a question in a criminal case.' § 96. Appeal by reserved question of law — Civil ease. — Either party to the action in a civil case may reserve any ques- tion of law decided by the court during the progress of the cause for the decision of the supreme court. Any question of law so reserved may be taken to the supreme court upon a bill of exceptions showing the decision; or, if it arises on demurrer, on the pleadings involved.'" When the question so reserved is to be shown by a bill of exceptions, the party excepting shall notify the court that he intends to take the question of law to the supreme court on the bill of exceptions only." Such notice to the court of the party's intention is an essential step in tak- ' E. S. 1894, § 1956. v. Hallowell, 91 Ind. 376; State v. ^ State V. "Weil, 89 Ind. 286. Dillon, 9 Ind. App. 554. 'State V. Hallowell, 91 Ind. 376. 'R. S. 1894, §§ 1912, 1955. See sec- « State V. Hallowell, 91 Ind. 376. tion 99, post. "State V. Tumey, 81 Ind. 559. ^Elliott's App. Proc, § 277. « State V. Hunt, 137 Ind. 537. " R. S. 1894, § 642. 'State V. Kern, 127 Ind. 465; State " R. S. 1894, § 642. 132 APPELLATE PRACTICE. S Qg ing an appeal under this provision of the statute;' but it is not necessary that the notice should be given at the precise time when the decision is made. It is enough if there is a proper exception taken at that time, and the declaration of intention to reserve questions is made and notice of intention to appeal on those questions is given at the time the rulings on which the questions arise are brought before the trial court for review by a motion for a new trial.* Upon receiving such notice the court shall cause the bill of exceptions to be so made that it will distinctly and briefly em- brace so much of the record of the cause only, and the state- ment of the court as will enable the supreme court to apprehend the particular question involved.' The object of such notice is to enable the trial court to prepare the special bill of excep- tions so as to disclose briefly and distinctly such part of the record or proceeding as will present to the court of review the particular question involved;* and where the court has received and acted on a notice without objection, and has, pursuant to such notice, fully and correctly prepared a special bill of ex- ' ceptions so as to present briefly and distinctly the question in- volved, the sufficiency of the notice can not successfully be questioned on appeal.' Such notice need not be in any par- ticular form, nor is it essential that it should be in writing; but it must be such a notice as will direct the attention of the trial court to the question sought to be reserved, and enable the court to frame a bill of exceptions that will clearly and fully exhibit the ruling.^ It is only questions of law decided by the court during the progress of the trial that can be reserved under this provision of the statute, and an exception to the final judg- ment pronounced after the evidence has been fully heard and the trial completed, can not be reserved in this manner.' If the question reserved relates in any way to the evidence, so much of the evidence as is necessary to a proper un- i Short V. Stutsman, 81 Ind. 115; » E. S. 1894, § 642. Jones V. Foley, 121 Ind. 180; Dillon « Loesch v. Koehler,144 Ind. 278. V. Bell, 9 Ind. 320; Bowen v. Mc- « Loesch v. Koehler, 144 Ind. 278. Doiigle, 7 Ind. 414. ^ Shiigart v. Miles, 125 Ind. 445,452. » Shueart v. Miles, 125 Ind. 445. ' Woodard v. Baker, 116 Ind. 152. § 96 PECULIAKTTIES OF DIFFERENT KINDS OF CASES. 133 dei'standing of that question must be in the record/ If the question relates to the competency of a witness, only so much of thie evidence need be given as will enable the appellate tribunal to clearly understand the nature and effect of the rul- ing complained of, and to see its prejudicial character.^ If the competency of evidence objected to depends on the contents of certain written instruments or records, so much of such instru- ments or records as is necessary to a proper understanding of the question must be included in the bill of exceptions.' If the question reserved relates to the correctness bf an instruction to the jury, the instruction must be in the record, and must be shown to have been excepted to.' The object of this statute is to enable an appeal to be taken on a partial record in all cases where the question or questions involved can be exhibited without the expense of obtaining a transcript of the entire record. It is sometimes a very conven- ient mode of appealing where a single question relating to the conduct of the trial is in dispute ; but the provisions for re- serving questions relating to the pleadings have no practical value, since the ordinary transcript of a record by which such questions may be presented is usually very brief. In appeals from questions reserved the rule of practice that questions re- lating to the evidence will not be considered unless all the evi- dence is in the record does not apply ,° and it is only necessary for the court to certify that the bill of exceptions contains all the evidence which has any bearing on the reserved question.* The statute seems to contemplate that the bill of exceptions shall contain the whole case that ia to be considered by the higher court, including matters which become parts of the record in ordinary civil appeals without being made a part of igmith V.James, 131Ind. 131; Con- * Short v. Stutsman, 81 Ind. 115; ner v. Town of Marion, 112 Ind. 517; Bissell v. "Wert, 35 Ind. 54. Indiana, etc., E. Co. v. Adamg, 112 'Shugart v. Miles, 125 Ind. 445. Ind. 302. 6 Conner v. Town of Marion, 112 = Smith V. James, 131 Ind. 131 ; Shu- Ind. 517; Indiana, etc., R. Co. v. Ad- gart V. Miles, 125 Ind. 445. ams, 112 Ind. 302; Downs v. Opp, 82 ^ Bensch v. Farnsworth, 9 Ind. App. Ind. 166. 547. 134 APPELLATE PRACTICE. « 9g the bill of exceptions/ and it has been suggested that the proper practice is to include all such matters in the bill of exceptions." A contrary rule, however, has been adopted by the supreme court in the consideration of reserved questions in criminal appeals presented under a similar statute.' A reserved ques- tion of law can not be presented to the supreme or appellate court under the statute, unless it appears that the particular question arose and was decided by the trial court during the progress of the cause, and an exception was saved at the time.' It is necessary that the reserved question of law shall have been presented to the trial court for review by a motion for a new trial before an appeal is taken,^ and that final judgment in the case shall have been pronounced by the trial court.* A defective attempt to prepare a record for an appeal under this section does not cut off the right to prosecute a general appeal under the civil code.' Persons taking an appeal under the provisions of this statute must comply with it in essential particulars, but the statute is liberally construed for the pur- pose of simplifying the manner of taking an appeal, where only one or two questions are involved.' But a party can not appeal under the general provisions of the code, and, upon finding his appeal or record defective, assume that it is a valid appeal and a sufficient record under the statute providing for reserving questions of law.' After the transcript is prepared and filed, such an appeal is conducted like any other civil appeal, and an assignment of errors is necessary as in other cases." The reserved question must be taken to the supreme court by appeal within one year after final judgment in the cause; it can not be taken afterward." An appeal in such a 1 R. S. 1894, § 642. « Taylor v. Board of Commissioners, 2 Elliott's App. Proc, § 240, 241. 120 Ind. 121. ^State V. Day, 52Ind. 483; State v. 'McKendryv. Sinker, etc., Co., 1 Bartlett, 9 Ind. 569 ; section 95, ante. Ind. App. 263. 'Short V. Stutsman, 81 Ind. 115; 'Shugart v. Miles, 125 Ind. 445; Woodard v. Baker, 116 Ind. 152. Jones v. Foley, 121 Ind. 180; Mercer 5 Conner v. Town of Marion, 112 v Corbin, 117 Ind. 450. Ind! 517; Eousseau v. Corey, 62 Ind. 'Elliott's App. Proc, § 234. 250; Starner v. State, 61 Ind. 360. " Elder v. Sid well, 66 Ind. 316. " R. S. 1894, § 643. § 97 PECULIARITIES OF DIFFERENT KINDS OF CASES. 135 case does not stay proceedings on a judgment unless so ordered by the supreme court or some judge thereof.' An application for such an order is made in the same manner as in other appeals.^ § 97 Appeal from decision affecting settlement of estate. — The mode of taking an appeal from decisions "growing out of any matter connected with a decedent's estate" is prescribed by a special statute.' This statute allows ninety days after the appeal bond is filed in which to file the transcript in the su- preme court, and requires that the appeal bond shall be filed within ten days after the decision complained of is made, un- less for good cause shown the court to which the appeal is prayed shall direct such appeal to be granted on the filing of such bond within one year after such decision.' Executors and administrators are excused from the necessity of filing an appeal bond in appeals prosecuted on behalf of the estates which they represent,* and are allowed the same time within which to file the transcript as if such a bond had been filed ;^ but where an administrator or executor takes an appeal from a judgment against himself and in favor of the estate, which he prosecutes for his individual benefit, he is under the same obligation to file an appeal bond as any other person.' The time allowed for filing a transcript is one hundred days from the time the decision or judgment appealed from was given,' without regard to whether the appeal bond was filed on the same day that the decision or judgment was rendered or not until the tenth day afterward. Unless the transcript is filed within one hundred days (the appeal bond having been duly filed within ten days) the appeal will be dismissed.' ' R. S. 1894, § 643. ' Case v. Nelson, — Ind. App. — , ' Section 172, post. ' 53 N. E. Eep, 176 ; section 9, ante. 'R. S. 1894, §2609; Acts 1899, p. » This rule is deduced from the de- 397, amending section 2610, R. S. 1894. cisions of the court under the statute ' Acts 1899, p. 397, amending section before it was amended. BoUenbacher 2610, E. S. 1894. v. Whisnand, 148 Ind. 377; Harrison = R. S. 1894, § 2612. Nat'l Bank v. Culbertson, 147 Ind. " Ruch V. Biery, 110 Ind. 444; Year- 611 ; Simons v. Simons, 129 Ind. 248. ley V. Sharp, 96 Ind. 469; Bake v. 'Harrison Nat'l Bank v. Culbert- Smiley, 84 Ind. 212. son, 147 Ind. 611 ; Galentine v. Bru- 136 APPELLATE PRACTICE. § 97 The two steps necessary to perfect such an appeal usually are: First, a bond must be filed within ten days after the de- cision was made; second, the transcript must be filed in the of- fice of the clerk of the supreme court within one hundred days after the decision is made;' and a failure to take these steps within the required time will be fatal to the appeal. But we have seen that administrators and executors are excused from taking the first step/ and that the statute permits the court, to which an appeal is prayed for good cause shown, to direct that such appeal shall be granted on the filing of an appeal bond within one year after the decision,' and it is held that a failure on the part of appellee to ask for the dismissal of an appeal be- cause of the absence of an appeal bond until after a year has elapsed from the rendition of judgment, and after he has filed his brief discussing the merits of the appeal, amounts to a waiver of the appeal bond.' One year marks the extreme limit within which an appeal must be taken and the time for appealing can not be extended beyond that term under any circumstances.' The power given to the court to grant an appeal in such cases, after the ten days allowed for filing an appeal bond have expired, has seldom been exercised, and, it is safe to say, will not be exer- cised except where the cause shown for asking an extension is clear and strong, and the party asking to appeal has used proper diligence and care and is not at fault in failing to ap- peal within the proper time. Even when the time for appeal- ing is extended, an appeal bond is essential, the only effect of the order of the supreme or appellate court being to extend the time for filing it. Such an extension of time for filing the appeal bond must be seasonably applied for' by a formal peti- tion supported by affidavits or proof showing cause for taking baker, 147 Ind. 458; Galentine v. * Jones v. Henderson, 149 Ind. 458, Woods, 137 Ind. 532 ; Campbell v. disapproving Ten Brook v. Maxwell, Horner, 12 Ind. App. 86. 5 Ind. App. 353. 'Elliott's App. Proc, § 267; Acts » Ten Brook v. Maxwell, 5 Ind.App. 1899, p. 397. 353. 2R. S. 1894, § 2612. « Campbell v. Horner, 12 Ind.Ap" 3Actsl899, p. 397. 86. § 97 PECULIARITIES OP DIFFERENT KINDS OF CASES. 137 the appeal, and an excuse for not appealing earlier,' and due notice must be given to the opposite party of the nature of the petition and time of presenting it, so that he may appear and resist it.^ This notice should be served ten days before the time set for the hearing.' Although notice is required, the supreme court refused to dismiss an appeal for lack of notice of the petition in one case where leave to appeal had been granted on an ex parte appli- cation by the appellant, although the petition could probably have been successfully resisted.' All the parties were be- fore the court when the question whether the appeal should be dismissed was considered, and the court contented itself with saying that the question of granting an appeal would be considered as having been adjudicated, and reversed the case.' It is not probable that such an ex parte application would again prove successful. The application for leave to appeal may be supported or opposed by a written or printed argument in the form of a brief ,^ but oral arguments are seldom or never heard on such matters.' At least three judges of the higher court must concur in granting additional time in which to file an appeal bond. If one judge of the appellate court is dis- qualified and the others are equally divided on the question, it amounts to a denial of leave to appeal.' Such a division of opinion does not require the application to be sent to the supreme court.' The rule that appeals will lie only from final judgments is applied to appeals under this statute, and no appeal can be taken from a mere interlocutory order of court.'" Thus, no appeal can be maintained from an order approving the current report of an administrator," or setting aside an order for the ' Browning v. McCracken, 97 Ind. ' Hudson v. Wood, — Ind. ^, 54 279. N. E. Kep. 104. ' Browning v. McCracken, 97 Ind. ' Hudson v. Wood, — Ind. — , 54 279 ; rule 15 Sup. Ct. N. E. Eep. 104. Eule 7 Sup. Ct. " Thiebaud v. Dufour, 57 Ind. 598 ; • Duncan v. Gainey, 108 Ind. 579. Wood v. Wood, 51 Ind. 141 ; Goodwin * Duncan v. Gainey, 108 Ind. 579. v. Goodwin, 48 Ind. 584. « Eule 14 Sup. Ct. " Goodwin v. Goodwin, 48 Ind. 584. Eule 15 Sup. a. 138 APPELLATE PRACTICE. §97 distribution of assets in a decedent's estate,' or refusing to approve the report of an executor/ But where the decision is final as to the matter with which it deals, an appeal may be taken, although the estate remains in the. circuit court for further orders leading to its settlement. Thus, an appeal may- be prosecuted from a judgment allowing or disallowingaclaiin,' or ordering the sale of a decedent's real estate to pay Ms debts,' without waiting for the settlement of the estate. It is impossible to lay down any short general rule by which to determine in every instance whether an appeal must be taken under the provisions of this statute, or whether it comes within the general provisions of the civil code.^ But some rules have been suggested for determining under which statute an appeal should be taken. Judge Elliott lays down the rule, that "where the controversy is connected with a de- cedent's estate, and an adjustment of the controversy is essen- tial to a final settlement of the estate, the appeal must be taken under the special statute; otherwise, under the general statute regulating appeals in civil actions.'" And the su- preme court has laid down the rule that in all proceedings under the law providing for the settlement of a decedent's es- tate, where the exercise of the probate jurisdiction of the court is invoked, the appeal is governed by the special statute.' But where the remedy sdught by or against an estate is not provided by the probate procedure act, but must be enforced under the civil code, the appeal must be taken under that code.' It will be observed that the statute grants an appeal from' "a^y decision * * * growing out of any matter co/mected with a decedent's estate,'" and the supreme court has declared that the object of the statute is to require prompt appeals in such cases and thereby cut off delays in litigating matters af- 1 Wood V. Wood, 51 Ind. 141. ' Koons v. Mellett, 121 Ind. 685, 2 Thiebaud v. Dufour, 57 Ind. 598. 590, and cases cited. 3 Jones V. Jones, 91 Ind. 378. ' Eoach v. Clark, 150 Ind. 93, 96, 4 Rinehart v. Vail, 103 Ind. 159. and cases cited. 5 Elliott's App. &roc., § 255. « E. S. 1894, § 2609. ^Elliott's App. Proc, §258. § 97 PECULIARITIES OF DIFFERENT KINDS OF CASES. 139 fecting decedents' estates and expedite their final settlement.' Under the above rules, and keeping in view this object, it is apparent that an appeal must be prosecuted under this statute from an order allowing or disallowing a claim against an es- tate,* because the estate can not be settled until the debts of the decedent are ascertained and paid, and the allowance of a claim is a direct exercise of the probate jurisdiction. For tlie same reason an appeal must be taken under this statute from an order setting aside the allowance of a claim ,^ and from the judgment rendered in an action against the heirs and devisees of a decedent, under the statute* which makes them "liable to the ancestors' creditors for the shares of his estate received by them.* But an appeal from the judgment in an action to col- lect a promissory note belonging to the decedent should be taken under the civil code, whether the action was begun in the decedent's lifetime and prosecuted to final judgment by his administrator, ° or was instituted by the administrator himself.' In such a case, no probate jurisdiction is exercised, and the final decision in the case is not necessary to a settlement of the estate. This rule is often applied to actions on contract in which the administrator is the plaintiff, and could be justi- fied on the ground that a party should not be deprived of his right to appeal within a year in such cases, merely because the action is brought by the holder's administrator instead of be- ing brought by the holder himself. An appeal from an order directing the administratrix of an estate to pay to a surviving partner of the decedent a sum of money realized from the sale of his real estate, to be used in paying partnership debts, must be taken under the special statute, although the proceeding in which the order was made took the form of an application for a writ of mandaraus ; for ' Miller v. Carmichael, 98 Ind. 236. « Heller v. Clark, 103 Ind. 591 ; Hol- 2 Miller v. Carmichael, 98 Ind. 236; land v. Holland, 131 Ind. 196; May Bell V. Mousset, 71 Ind. 347; Camp- v. Hoover, 112 Ind. 455; Wright v. tell V. Horner, 12 Ind. App. 86. Manns, 111 Ind. 422. 'Beaty V. Voria, 138.1nd. 265. 'Walker v. Steele, 121 Ind. 436; 'R. S. 1894, § 2597. Hillenberg v. Bennett, 88 Ind. 540; ' Harrison Nat'l Bank v. Culbertson, Husk v. Gray, 74 Ind. 231. 147 Ind. 611. 140 APPELLATE PRACTICE. • « 97 such an order was clearly a matter growing out of the settle- ment of an estate and necessary to its settlement.' Appeals must also be taken under the special statute where exceptions are taken to an administrator's final report/ or a proceeding is instituted to set it aside.' Also where a proceeding by the ad- ministrator to sell the real estate of a decedent to pay his debts is resisted,' or an application is made to require the adminis- trator to pay the widow her statutory allowance.' But an action against the administrator to charge the money in his hands with the debts of a legatee/ or to reach property of a debtor supposed to be in his hands, against whom proceedings supplementary to execution have been instituted,' or an action of replevin by the administrator to recover personal property of his decedent,' are appealable under the civil code, because they do not belong to the probate jurisdiction of the court and are no part of the settlement of the estate. For the same rea- son a judgment in a suit for the construction of a will,' or to test the validity of a will and quiet title to real estate devised by such will," may be appealed from under the general provis- ions of the civil code, although such suits were instituted by the administrators or executors of the testators respectively. The same is true of a suit to contest a will, that being an in- dependent proceeding not connected with the settlement of the estate." The decisions as to what cases are appealable under the special statute are conflicting, but it will be safer to appeal promptly in every case where the settlement of the estate must , 'Bennett v. Bennett, 102 Ind. 86. ^Koonz v. Mallet, 121 Ind. 585. See Case v. Nelson, — Ind. App. — , ' Dillman v. Dillman, 90 Ind. 585. 52 N. E. Eep. 176. ' Sloan v. Lowder, —Ind. App. — , ' See Case v. Nelson, — - Ind. App. 54 N. E. Eep. 135. — , 52 N. E. Rep. 176; Bake v. Smi- sgjmmojjs y^ Beazel, 125 Ind. 362. ley, 84 Ind. 212.. " Mason v. Eoll, 130 Ind. 260. 8 Webb V. Simpson, 105 Ind. 327. " E. S. 1894, §2766, et seg. ; Eoller v. 'Beatty v. Voris, 138 Ind. 265; Kling, 150 Ind. 159; Bartlett v. Einehart v. Vail, 103 Ind. 159; Hun- Manor, 146 Ind. 621; Evansville, etc., ter V. French, 86 Ind. 320; Seward v. Co. v. Winsor, 148 Ind. 682; Ham- Clark, 67 Ind. 289. son v. Stanton, 146 Ind. 366. ' Browning v. McCracken, 97 Ind. 279. § 98 PECULIARITIES OF DIFFERENT KINDS OF CASES. 141 be delayed pending the decision of the appeal. When an ap- peal is taken under this statute its provisions must be strictly followed so far as it prescribes a rule for perfecting the appeal, but omissions in this statute are supplied by reference to the civil code, and the practice as to assigning errors, filing briefs, etc., after the transcript is filed, is identical with the practice in other civil appeals.' § 98. General rules as to appeals in criminal cases. — As the civil code does not govern appeals in criminal cases ^ and can not be resorted to for a remedy in such a case, it will be nec- essary for us to notice the provisions of the statute as to ap- peals in criminal cases. The remedy by way of a review of the proceedings after the conviction or acquittal of a defend- ant in a criminal prosecution is exclusively of statutory origin, having been unknown to the common law,' and that law can only be looked to as explaining the meaning of the statute granting such appeals, and not as furnishing the rule for con- ducting them. The criminal code will, however, be presumed to have been enacted with reference to the well-settled princi- ples of law and general practice, and it expressly adopts the definitions of terms used, as given in the civil code, so far as they are applicable,' and continues in force all laws and usages relative to pleadings and practice in criminal actions which had grown up in this state at the time the criminal code was adopted, so far as they may operate to supply an omitted case, provided they are not inconsistent with the code-itself.' The jurisdiction of the supreme and appellate courts in criminal as well as civil cases is limited to the consideration of errors of law only, and errors of fact will not be considered on appeal.^ An assignment of error is required as m civil cases,' by which the errors relied on must be specifically pointed out.' The transcript must contain the written indict- ' Elliott's App. Proc, § 254. «Deal v. State, 140 Ind. 354, 359. 'Sturm V. State, 74 Ind. 278, 282. 'Deal v. State, 140 Ind. 354, 358; 'Elliott's App. Proc, §269. Dye v. State, 130 Ind. 87; Sturm v. *'R. 8. 1894, § 1971. State, 74 Ind. 278. ^ R. S. 1894, § 1973. 8 May v. State, 140 Ind. 88. 142 APPELLATE PRACTICE. ment or information on which the defendant was tried, or an appeal can not be maintained by either the state or the de- fendant.' The statute requires that the supreme court shall not regard technical errors or defects, or exceptions to any decis- ion or action of the court below, which did not, in its opin- ion, prejudice the substantial rights of the defendant.' And where it is manifest that a fair and impartial trial has been had, and that the judgment is just on the merits, the judg- ment will not be reversed for immaterial errors." The time for filing a transcript,* and for giving notice of the appeal in cases of this kind,' are governed by special provisions of the stat- ute,^ and there is no such thing as a term appeal in which no- tice can be dispensed with.' Not only is the accused allowed the right of appeal, but the state also, under some circum- stances, may appeal; and as the method of taking the appeal in each case is distinct, we will consider them separately. § 99. Appeal by the state in criminal cases. — The cases in which the state is permitted to appeal are three in number,' and no appeal can be taken by it except in the three cases enumerated. The first of these is where judgment is given for the defendant on quashing or setting aside an indictment or information.' The rule that an appeal lies only from a final judgment applies in criminal cases," and it is only where the court renders a judgment that the defendant be discharged from further prosecution on an indictment or information that an appeal by the state will lie." It is not necessary, however, that the defendant shall be discharged from custody in order 1 Rilev V. State, 149 Ind. 48; State State, 72 Ind. 250. V. Bins!' 9 Ind. App. 280. « E. S. 1894, § 1955. ' R. S. 1894, § 1964. « R. S. 1894, § 19S5. 'Stalcup V. State, 146 Ind. 270; El- "Erganbright v. State, 148Ind.l80; lis V. State, 141 Ind. 357; Reed v. State v. Hunt, 137 Ind. 537, 540; State, 141 Ind. 116. State v. Evansville, etc., R. Co., 107 » Section 108, post. Ind. 681 ; Wingo v. State, 99 Ind. 343; 6 Section 108, posJ. State v. Spencer, 92 Ind. 115. 6 R. S. 1894, §§ 1958, 1960. " State v. Spencer,92 Ind. 115; State 'Elliott's App. Proc, § 286, citing v Hunt, 137 Ind. 537; State v^Ha- McLaughlin v. State, 66 Ind. 193; lowell, 91 Ind. 376; State v. Haml- Buell V. State, 69 Ind. 125; Beck v. ton, 62 Ind. 409. § 99 PECULIARITIES OF DIBFERENT KINDS OF CASES. 143 that an appeal may be taken.' If the indictment or informa- tion is quashed as a whole an appeal will lie/ even though the defendant should be held in order that a new indictment may be procured.^ But if only part of the counts of an indict- ment are quashed, no appeal lies.' In this connection it may be suggested that where a defendant was acquitted of a crime by being found guilty of a similar crime of lesser degree, an appeal by the state was sustained,' the court thus holding, in effect, that such conviction was an acquittal of the more seri- ous charge within the meaning of the statute granting an ap- peal by the state.* The second class of cases in which the state is given a right to appeal is from an order of the' court arresting the judgment.' The judgment can be arrested in a criminal case for no other cause except the lack of legal authority of the grand jury which found the indictment to inquire into the offense charged by rea- son of its not being within the jurisdiction of the court, or be- cause the facts stated in the indictment or information do not constitute a public offense.' The question whether the evidence justifies a finding or verdict of acquittal can not be presented by a motion in arrest of judgment made after such verdict or find- ing has been returned.' It will be observed that in cases of this class, as in those of the preceding class, no question is taken to the supreme court as to the defendant's guilt or inno- cence, but only the question whether, if all the state has alleged is true, there is any power on the part of the court to punish him. The third class of appeals that may be taken by the state are appeals upon questions reserved by the state " The manner of taking such an appeal was considered above." The state can not appeal on a reserved question of law when the 1 State V. Allen, 94 Ind. 441. ' R. S. 1894, § 1955. ' State v: Allen, 94 Ind. 441. « E. S. 1894, § 1912 ; State v. Arnold, ' R. S. 1894, § 1829. 144 Ind. 651. * State ,v. Evansville, etc., R. Co., "State v. Rousch, 60 Ind. 304. 107 Ind. 581. " R. S. 1894, § 1955. = State V. Johnson, 102 Ind. 247. " Section 95, ante. s Elliott's App. Proc, § 272. 144 APPELLATE PRACTICE. defendant is convicted.' An appeal can only be entertained in case he was acquitted, and the fact of his acquital must appear from the record." An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed.' The supreme court is not authorized to reverse the judgment on an appeal by a reserved question, but only to pronounce an opinion on the correctness of the decision of the court below. Such opinion shall be binding on the courts throughout the state, and shall be a uniform rule of decision therein. But if the judgment appealed from is decided to be erroneous, the appel- lee must pay the costs of the appeal.* The provision of the state constitution that no person shall be put in jeopardy twice for the same offense,' operates to forbid a new trial after the defendant has once been ac- quitted, though erroneously. But where an appeal is taken from a ruling quashing an indictment or information and discharging the defendant before he has been placed on trial, this rule does not apply, and an erroneous judgment will be reversed and the cause ^remanded for further proceedings." Appeals from judgments of acquittal are seldom taken unless other indictments are pending against the same or other de- fendants, in the trial of which the same or similar questions are expected to arise. The defendant can not defeat the right of the state to take an appeal from the refusal of the trial court to pronounce the proper judgment by paying to the clerk the fine and costs adjudged against him in a case where he was legally liable to additional punishment.' Where two or more defendants are prosecuted jointly, and the state ap- peals from a judgment of acquittal as to one of them only, the record must show affirmatively that the party named as 1 State V. Hamilton, 62 Ind. 409. * E. S. 1894, § 1915. "State V. Hodgin, 139 Ind. 498; = Const., art. 1, § 14; E. S. 1894, State V. Spencer, 92 Ind. 115 ; State v. § 59. Hallowell, 91 Ind. 376. « State v. Hogriever, 152 Ind. 652. ' E. S. 1894, § 1957. ' State v. Arnold, 144 Ind. 651. § 100 PECULIARITIES OF DIFFERENT KINDS OP CASES. 145 appellee was acquitted, and that the alleged errors exerted some material influence on the disposition of the case.' § 100. Appeal by the defendant in criminal case. — Any de- fendant has the privilege of appealing to the supreme court as a matter of right from any judgment in a criminal action against him.^ But where the judgment is in his favor and the defendant is discharged, he can not maintain an appeal to ob- tain a decision of questions that may arise in a subsequent prosecution against him.' In passing on the appeal any decis- ion of the trial court or intermediate order made in the prog- ress of the case may be reviewed;* provided, of course, proper exceptions have been reserved.^ Under the comprehensive terms of the statute the defendant taking an appeal is allowed to present for review alleged errors in rulings on motions of all kinds, on the admission and exclusion of evidence, the giv- ing and refusal of instructions and all other orders and decis- ions, as fully as can be done in civil actions. When several defendants, are tried jointly, any one or more of them may take an appeal,* but the rule which is prescribed in civil appeals' does not obtain in appeals of this kind, and it is not necessary for the party or parties appealing to join their co-defendants; nor are the co-defendants who do not join in the appeal affected in any manner by such appeal,* but may themselves take an appeal before the expiration of the time allowed for appealing; or, if they do not, must suffer the penalty imposed on them, although the judgment may have been reversed as to those who appealed. So much of the rec- ord must be taken to the supreme court as will present for re- view the rulings complained of, and if it is expected to ques- tion any rulings as to the evidence or the instructions, they must be made a part of the record by a proper bill of excep- tions.' Any errors committed by the trial court must be ex- ' State V. Hodgin, 139 Ind. 498. « E. S. 1894, § 1959. " R. S. 1894, § 1954. ' Section 146, post. ' Musselman v. State, 33 Ind. 267. » E. 8. 1894, § 1959. *E."S. 1894, §1954. 'Meredith v. State, 122 Ind. 514; 'Section 7, ante. Delhaney v. State, 115 Ind. 499; Lev- 10 — App. Practice. 146 APPELLATE PEACTICE. § 100 cepted to by the defendant at the time/ or they can not be made available in his favor on appeal. Thus, if the verdict' or the judgment' should impose a penalty different from that prescribed by law, and the defendant should fail to object to it because of its being less severe than the legal penalty, he must suffer the penalty imposed though it be clearly erroneous.* erich v. State, 105 Ind. 277 ; Norton v, ' State v. Arnold, 144 Ind. 651. State, 106 Ind. 163; State v. Cooper, "May v. State, 140 Ind. 88. 103 Ind. 75 ; Madden v. State, 148 Ind. * May v. State, 140 Ind. 88 ; State v. 183 ; Pace v. State, 152 Ind. 343. Arnold, 144 Ind. 651. 'E. S. 1894, § 1916; section 7, ante. CHAPTER 8. TIME FOR TAKING APPEAL. J 101. Appeals that may be taken within one year. 102. Time for perfecting term ap- peal. 103. Time for appealing in receiv- , ership cases. 104. Time for appealing in matters growing out of settlement of decedent's estate. 105. Time for appealing from inter- locutory orders. § 106. Manner of computing time for taking appeal. 107. All acts for perfecting appeals must be done within time allowed. 108. Exception rn appeals in crimi- nal cases. 109. Exception in favor of persons under legal disabilities. § 101. Appeals that may be taken within one year. — Ap- peals in all civil cases may be taken within one year from the time the judgment was rendered,' or if the appellant is under legal disabilities at the time the judgment is rendered, he may appeal at any time within one year after such disability is re- moved.^ The time is calculated from the day when the judg- ment is pronounced;' and not from the date of its entry by the clerk.' If the entry is made nunc pro tunc long after the judg- ment was actually rendered, the time for appealing must still be counted from the date when judgment was pronounced and not from the time it was, entered.^ Where a motion for a new trial is duly filed after judgment is rendered the time for tak- ing an appeal dates from the final ruling disposing of such motion.^ But other motions, such as a motion to vacate the Mayer v. Haggerty, 138 Ind. 628; Board, etc., v. City of Terre Haute, 147 Ind. 134. ^ Board, etc., v. City of Terre Haute, 147 Ind. 134; Mayer v. Haggerty, 138 Ind. 628. * New York, etc., E. Co. v. Doane, ' R. S. 1894, § 645. * R. S. 1894, § 645 ; section 109, post. 'Jenkins v. Corwin, 55 Ind. 21 Mayer v. Haggerty, 138 Ind. 628 Brown v. Trexler, 132 Ind. 106 Wright V. Manns, 111 Ind. 422. ■> * Anderson v. Mitchell, 58 Ind. 592 ; n4.7^ 148 APPELLATE PRACTICE. §101 judgment, will not have the effect of postponing the time for taking an appeal.' And even a motion for a new trial will not extend the time for taking an appeal unless the record shows that it was a proper one.^ The time for taking an appeal can not be extended by agree- ment of parties,' but the supreme court, in the exercise of its inherent right to administer justice, may extend the time for taking an appeal where the appellee, by violence or fraud, has prevented the appellant from taking his appeal in time, or where the appellant's failure to perfect his appeal was due to accident or excusable mistake.' It is safe to affirm, however, that this extraordinary power will never be exercised, except where the appellant presents a meritorious case in which he has been free from negligence, and the appellee's wrongful conduct, or the accident or mistake relied on is clearly estab- lished. Appeals in criminal cases must be taken within one year after the judgment is rendered,^ and the transcript must be filed within ninety days after the appeal is taken,' whether it is taken by the defendant or by the state. This provision is construed to mean that the appeal may be taken by the service of proper notice' at any time within one year, and filing the transcript not more than ninety days afterward,' even though such time should extend beyond the end of the year.' Appeals on reserved questions of law," or from the decision in agreed cases, must be taken within one year after final judgment, like other civil appeals. The court to which an appeal lies from a decision in a matter growing out of a decedent's estate, for good cause shown, may direct that an appeal shall be granted 105 Ind. 92; Atkinson v. Williams, 'Smythe v. Boswell, 117 Ind. 365; 151 Ind. 431; Joyce v. Dickey, 104 Hutts v. Martin, 131 Ind. I; Bank of Ind. 183 ; Moon v. Cline, 11 Ind. App. "Westfleld v. Intnan, 133 Ind. 287. 460; Wheeler v. Barr, 6 Ind. App. 530. = R. S. 1894, § 1958. 1 Weisman v. Green, 20 Ind. App. « K. S. 1894, § 1958. 699 ; Joyce v. Dickey, 104 Ind. 183. ' R. S. 1894, § 1960 ; section im,post. *Hobb V. Salem Bedford S. Co., — 'Price v. State, 74 Ind. 553. Ind. App. — , 53 N. E. Eep. 1063. » Lichtenfels v. State, 53 Ind. 161. ' Plory V. Wilson, 83 Ind. 391. " R. S. 1894, § 643. § 102 TIME FOR TAKING APPEAL. 149 on the filing of a proper bond within one year after such decision is made, but its authority to do so is seldom exercised.' § 102. Time for perfecting term appeal. — In order that an appeal may be perfected as a term appeal, it' is essential that an appeal bond with such penalty and surety as the court shall approve shall be filed within a time to be fixed by the court, ^ and the transcript filed in the office of the clerk of the supreme court within sixty days after filing the appeal bond.' The time to be allowed for filing the appeal bond is left to the discretion of the court,' but unless the bond is filed within the time allowed and the transcript filed in the office of the clerk of the supreme court within sixty days after the filing of such bond, the appeal in term will be deemed to have been aban- doned,^ and the time for filing the transcript can in no case extend beyond one year from the date of judgment.^ The application for leave to appeal must be made and an order granting permission to file an appeal bond obtained at the term when judgment is rendered ' in order to perfect a term appeal. But the term when judgment is rendered does not necessarily mean the term at which judgment is first en- tered. If a motion for a new trial is duly filed, as provided by the statute,' it is sufficient to pray an appeal at the term at which that motion is overruled, even though a judgment may have been formally entered several months before ; ' because, in legal contemplation, there is no final judgment until the motion for a new trial has been overruled, though the formal judgment on the verdict or finding may have been entered 'Acts 1899, p. 397; sections 97, 104, ^McKinney v. Hartman, 143 Ind. ante. 224; Midland R. Co. v. Holloran, 14- ^McKlnney v. Hartman, 143 Ind. Ind. App. 392; Supreme Council v. 224; Holloran v. Midland R. Co., 129 Boyle, 15 Ind. App. 842. Ind. 274; Michigan Mutual, etc., Co. « Wright v. Manns, 111 Ind. 422. V. Frankel, 151 Ind. 534; section 91, 'R. S. 1894, § 650; Elliott's App. ante. Proc, § 246. 'R. S. 1894, § 650. ' « R. S. 1894, § 570. « Mitchell V. Gregory, 94 Ind. 363 ^New York, etc., R. Co. v. Doane, 365. 105 Ind. 92. 150 APPELLATE PRACTICE. §103 previously,' and because an appeal taken while a motion for a new trial is pending will be dismissed/ -But collateral motions do not have the effect to suspend the time when the judgment takes effect so that it may be appealed from.' The failure of a party to perfect a term appeal by filing his appeal bond within the time allowed and filing the transcript within sixty' days afterward does not prevent him from filing the transcript arid perfecting an appeal afterward under the provisions of the statute relating to vacation appeals.' But in such a case he is bound to give notice as in other vacation ap- peals/ and the appeal bond which he may have filed under the order granting an appeal in term will not operate to stay exe- cution on the judgment.^ § 103. Time for appealing in receivership cases. — In all cases in which a receiver is appointed by the court, or an ap- plication for the appointment of a receiver is refused, the party aggrieved may, within ten days thereafter, appeal from the decision of the court to the supreme court without await- ing the final determination of such case.' The provision that the appeal may be taken within ten days has been construed to mean that the transcript must be filed in the supreme court within ten days after the order appealed from is made,* and this time can not be extended by agreement of the parties.' If the parties were all present in court at the time the re- ceiver was appointed, the appeal may be fully perfected by filing a proper appeal bond" and filing the transcript within ' Wheeler V. Barr, 6 Ind. App. 530; Frankel, 151 Ind. 534; Holloran v. New York, etc., E. Co. v. Doane, 105 Midland R. Co., 129 Ind. 274. . Ind. 92; Joyce v. Dickey, 104 Ind. 183. « McKinney v. Hartman, 143 Ind. 2 Colchen v. Ninde, 120 Ind. 88, 90; 224; Supreme Council, etc., v. Boyle, New York, etc., R. Co. v. Doane, 105 15 Ind. App. 342; Midland R. Co. v. Ind. 92. Holloran, 14 Ind. App. 392. 3 Joyce V. Dickey, 104 Ind. 183; 'R. S. 1894, § 1245. Weisman V. Green, 20 Ind. App. 699. 'Vance v. Schayer,'76 Ind. 194; 4R. S. 1894, § 651. Hadley v. Hill, Flory v. Wilson, 83 Ind. 391. 73 Ind. 442, 448. » Flory v. Wilson, 83 Ind. 391. = Michigan Mutual, etc., Co. v. " Wabash R. Co. y. Dykeman, 133 Ind. 56. ^ 104 TIME FOR TAKING APPEAL. 151 ten days;' and if the appointment of a receiver was refused, even the filing of an appeal bond is unnecessary.^ But when the adverse party was not present when the appeal was taken, he must be served with notice of the appeal.' Where a receiver was appointed in the absence of the adverse parties, and without notice to them, they may after- ward appear' and obtain leave to intervene,' and present their objections to the appointment at the earliest legal opportunity; and the ten days within which they may take an appeal will date from the ruling of the court on such objections.^ A fail- ure to perfect the appeal within ten days does not wholly deprive the complaining party of his right to appeal, as he can reserve his exceptions to the order appointing a receiver, and make them available to reverse the final judgment upon an appeal taken after the cause in aid of which the receiver was appointed has been prosecuted to final judgment.' But unless an appeal is taken within ten days the receiver must be left in charge of the property pending the litigation. § 104. Time for appealing in, matters growing out of set- tlement of decedent's estate. — In order to take an appeal from any decision of the court or judge thereof in vacation, growing out of any matter connected with a decedent's estate, the appellant must file an appeal bond " within ten days after the decision complained of is made,' and must file a transcript of his appeal with the clerk of the supreme court within one hundred days after such decision is made." Executors and administrators are excused from the necessity of filing an ap- ' Pressley v. Lamb, 105 Ind. 171, Ind. 56 ; State v. Union Nat'l Bank, 189. 145 Ind. 537. 'R. S. 1894, § 1245. 'Buchanan v. Berkshire, etc., Co., »Oole V. Franks, 147 Ind. 281; 96 Ind. 510. section 152, post. * R. S. 1894, § 2609. * Wabash R. Co. v. Dykeman, 133 " Acts 1899, p. 397, amending § 2610, Ind. 56. R. S. 1894. * State V. Union, etc., Bank, 145 Ind. "> Acts 1899, p. 397, amending § 2610, 537. R. S. 1894; Bollenbacher v. Whis- 'Wabash R. Co. v. Dykeman, 133 nand, 148 Ind. 377; Simons v. Simons, 129 Ind. 248 ; sections 97, 104, ante. 152 APPELLATE PKACTICE. X 105 peal bond,' but must file the transcript within a hundred days after the decision appealed from is made.' The court to which the appeal is prayed has authority to ex- tend the time for filing an appeal bond not more than one year after the decision is rendered/ but such an extension of time will only be granted on proper and seasonable application,' after due notice to the opposite party,' and on a proper show- ing of cause for granting such indulgence.' If an extension of time is granted for filing the appeal bond the transcript may be filed at any time within ninety days after the bond is filed, provided that time does not extend beyond one year after the decision was made, ^as that period of time marks the extreme limit within which the appeal must be perfected.' § 105. Time for appealing from interlocutory orders.— The statute which grants appeals from interlocutory orders requir- ing the surrender of rights in real and personal property of certain kinds and from orders granting or dissolving injunc- tions and orders upon writs of habeas corpus,' provides that such appeals may be taken at the term of the court at which the order is made; or when made in vacation, at the time it is made or during the next term. The appeal shall not be granted until the appellant has filed an appeal bond as in other cases of appeal.' ' Except where appeals of this kind are taken from an order made in vacation at the time it is made," they must be perfected under the rules for taking term appeals, at the term when the order appealed from is made, or, if it is made in vacation, at the next term of court, "except that the authority of the court to grant time beyond the term in which to file an appeal bond does not extend to appeals of this character." It is also necessary to file the transcript within thirty days after the ap- ' R. S. 1894, § 2612; section 97, ante. 'Ten Brook v. kaxwell, 5 Ind. App. ' Section 97, ante. 353. » Acts 1899, p. 397, amending § 2610, » r. s. 1894, § 658. R. S. 1894. 'R.S. 1894, §659. 4 Campbell v. Horner, 12 Ind. App. "Miller v. Burket, 132 Ind. 469; 86. section 92, ante. 5 Browning v. McCracken, 97 Ind. " Baker v. Griffitt, 83 Ind. 411, 415, 279; section 97, ante. Simpson v. Pearson, 31 Ind. 1. 6 Browning v. McCracken, 97 Ind. " Natcher v. Natcher, — ind. , ^79; section 97, ante. October 31, 1899. §106 TIME FOR TAKING APPEAL. 153 peal bond is filed. There is no provision of law for per- fecting a vacation appeal upon failure to perfect the term appeal, and any failure to file the bond or transcript in time will cut off all right to appeal from the order.' An appeal of this kind stays proceedings on the order appealed from for thirty days and no longer,^ unless the court to which the ap- peal is taken, or some judge thereof, issues a supersedeas order for a longer period upon proper application being made." An appeal from an interlocutory order of injunction does not give the appellant any right to do the forbidden act, but only stays execution for the costs for thirty days.* Where the order ap- pealed from is made in term time, an appeal can not be main- tained after the close of that term.* § 106. Manner of computing time for taking appeal. — The rule for computing the time within which an appeal is to be taken is prescribed by the statute which provides that the time within which an act is to be done as provided in the civil code shall be computed by excluding the first day and includ- ing the last, unless the last day be Sunday, when it shall be excluded.^ This statute has been construed to mean that if the last day allowed for doing an act falls on Sunday, the act may be done on the following day.' Under its provisions it has been held that an appeal taken on July 26, from an order appointing a receiver on July 16 of the same year, was within the required ten days, and therefore not subject to dismissal;* and it was also held that an appeal perfected on July 23 of one year, from a judgment rendered on July 23 of the preceding year, was taken within a year and could be maintained.' § 107. All acts for perfecting appeals must be done within time allowed. — It is a general rule that an appeal must be 'Baker v. Griffitt, 83 Ind. 411. szim^^grmanv. Makepeace,152Ind. 'R.S. 1894, §660. 199. 'R. S. 1894, § 660. See section 172, «E. S. 1894, § 1304. post. 7 Hogue V. McClintock, 76 Ind. 205. * Central Union Tel. Co. v. State, 'Hursch v. Hursch, 99 Ind. 500. 110 Ind. 203; State v. Chase, 41 Ind.' 'Wright v. Manns, 111 Ind. 422. 356. 154 APPELLATE PRACTICE. X 107 taken by the performance of all the acts necessary to perfect it within the time allowed for taking an appeal.' These steps include filing an appeal bond in cases where such a bond is required/ filing the transcript with a proper assignment of errors/ and giving notice to co-parties who might choose to join in the appeal.* Appeals have frequently been dismissed for failure to give proper notice to the opposite party/ and the rules of court ex- pressly require that an appeal shall be dismissed where it was taken in vacation and the cause has remained on the docket for ninety days or more without an appearance by the appellee nor any attempt being made to serve him with notice of the appeal.* But the better reason supports the rule that the issu- ing of a notice is not an act in taking an appeal which must be done within a year after judgment is pronounced ; ' and the service of notice on the appellees within a year, where notice is issued after the transcript is filed/ is certainly not required. It is by far the better practice, however, to cause notice to issue at the time the transcript is filed, and notice should always be ordered at that time. The assignriient of errors should be in- dorsed on the transcript and filed at the same time that it is filed ; for, unless a proper assignment of errors is filed before the expiration of the time allowed for taking an appeal, the appeal can not be maintained." Thd court will not permit the assignment of errors to be ^Abshire v. Williamson, 149 Ind. nett v. Seibert, 10 Ind. App. 369; 248; HoUoran v. Midland, etc., Co., Shaefer v. Nelson, 17 Ind. App. 489. 129 Ind 274; Elliott's App. Proc, « Eule 36 Sup. Ct. § 128. 'O'Marav.WabashR. Co.,150Ind. 2 Section 169, posi. 648; Tate v. Hamlin, 149 Ind. 94; ' Tate V. Hamlin, 149 Ind. 94. Bank of Westfield v. Inman, 133 Ind. « Holloran V. Midland, etc., E. Co., 287; Daugherty v. Brown, 21 Ind. 129 Ind. 274; Michigan Mutual, etc., App. 115. But see Coburn v. Whit- Co. V. Frankel, 151 Ind. 534. aker, etc., Co., 12 Ind. App. 340; 5 Abshire v. Williamson, 149 Ind. Board of Commissioners v. Vurpillat, 248; O'Mara v. Wabash E. Co., 150 14 Ind. App. 811. Ind. 648; Cole v. Franks, 147 Ind. «E. S. 1894, § 652. 281 ; John V. Farwell Co. v. Newman, 'Lawrence v. Wood, 122 Ind. 452; 17 Ind. App. 649; Coburn v. Whit- Snyder v. State, 124 Ind. 335; Bacon aker, etc., Co., 12 Ind. App. 340 ; Ben- v. Withrow, 110 Ind. 94. § 108 TIME FOR TAKING APPEAL. 155 amended as to a material matter after the expiration of the time allowed for taking an appeal.' No matter what other acts are done, the appeal must be dismissed unless the transcript is filed before the expiration of the time allowed for appealing.^ Time to do one or more of the acts required by the statute' or rules of court* may be extended by the court in the exercise of its inh~erent power to mainta!in its dignity and independence in the administration of justice. ° But the power to extend the time for perfecting an appeal will only be exercised in an exceptional case, where the appellant is shown to be clearly entitled to extraordinary relief.' In order to obtain the favor of an exercise of this power in his behalf, a party must show that he has done all in his power to perfect his appeal, and has been prevented from perfecting it without his own fault or negligence.' § 108. Exception in appeals in criminal cases. — Appeals in criminal cases form an apparent exception to the rule that all acts required to perfect an appeal must be done within the time allowed for appealing; but this exception is apparent only, and grows out of the peculiar construction given to the statute regulating such appeals. That statute provides that all appeals must be taken within one year after the judgment appealed from is rendered, and the transcript must be filed within ninety days after the appeal is taken;* also that an ap- peal by the state is taken by the service of a written notice upon the clerk of the court, and a similar notice on the de- fendant or his attorney;' and, if the appeal is taken by the defendant, a similar notice must be served on the prosecuting attorney." 'Doblev.Brown,20Ind.App.l2, 16. =Smythe v. Boswell, 117 Ind. 365; section 101, ante. « Smythe v. Boswell, 117 Ind. 365. ' Section 101, ante. ^Wright V. Manns, 111 Ind. 422 Jolinson V. Stephenson, 104 Ind. 368 Anderson v. Mitchell, 58 Ind. 592 Jenkins v. Corwin, 55 Ind. 21 ; Harsh- « R. S. 1894, § 1958, man v. Armstrong, 43 Ind. 126. » R. S. 1894, § 1960. ' Hutts V. Martin, 131 Ind. 1. " R. S. 1894, § 1960, * Bank of Westfleld v. Inman, 133 Ind. 287. 156 APPELLATE PRACTICE. X 108 These provisions have been construed to mean that notice might be served at any time within one year after judgment ' and the transcript filed within ninety days after service of the notice/ thus giving one year and ninety days within which to perfect the appeal. But it is essential that the notice of appeal should be given within the year/ and the transcript must be filed within ninety .days after notice is served, whether it is served immediately after the judgment is rendered, or not until the year has almost expired.* But where the transcript was first filed, and a proper notice was afterward served before the expiration of the year, all the acts necessary to perfect the appeal being done within ninety days, though not in the order usually followed, the supreme court refused to dismiss the appeal.'' An assignment of errors is necessary in a criminal case,' as well as in civil cases, although the statute does not expressly re- quire it.' It has never been held necessary to file the assignment of errors in criminal cases before the expiration of the time allowed for appealing,' but where no assignment of errors was filed before the court took up the case for consideration, the appeal was dismissed,' and where the assignment of errors was so defective as not to present the question relied on by the ap- pellant, leave to amend the assignment of errors was refused," and the judgment afiirmed." Since criminal cases are sub- mitted for immediate consideration as soon as the transcript and notice are filed, '^ the only safe and reasonable course is to endorse the assignment of errors on the transcript before fil- ing it. 1 Lichtenfela v. State, 53 Ind. 161. v. State, 88 Ind. 341 ; Sturm v. State, 2 Farrell v. State, 85 Ind. 221 ; Price 74 Ind. 278, 283 ; State v. Boss, 4 Ind. V. State, 74 Ind. 553 ; State v. Quick, App. 480. 73 Ind. 147. ' Sturm v. State, 74 Ind. 278, 283. » Lichtenfels v. State, 53 Ind. 161. ' State v. Boss, 4 Ind. App. 480. 4 Farrell v. State, 85 Ind. 221 ; Price ' Burst v. State, 88 Ind. 341. V. State, 74 Ind. 553; State v. Quick, " State v. Boss, 4 Ind. App. 480. 78 Ind. 147; Winsett v. State, §4 Ind. " May v. State, 140 Ind. 88; Sturm 437 V. State, 74 Ind. 278. 5 Beggs V. State, 122 Ind. 54. " Rule 19 Sup. Ct. ; B. S.1894, § 1962. SMayv. State, 140 Ind. 88; Burst § 109 TIME FOR TAKING APPEAL. 157 § 109. Exception in favor of persons under legal disabili- ties. — The statute granting appeals in civil cases within one year after final judgment is rendered, provides that where the appellant is under legal disabilities at the time the judgment is rendered he may have his appeal at any time within one year after the disability is removed.' The exception in favor of persons under legal disabilities does not have the effect of extending the time of appeal to co-appellants not under such disabilities/ but an appeal may be maintained by the persons only who have been under such disabilities, and co-parties whose time for appealing has expired can not share in the benefit of the judgment on appeal.' If persons who have been under legal disabilities take an appeal which is dismissed on account of irregularities, they can not maintain a second ap- peal taken more than a year after such disabilities were removed.* If several persons join in an appeal, and the rights of some of them are barred by the statute, while others were under legal disabilities until within a year before the appeal was taken, the supreme court may dismiss the appeal as to those whose rights are barred and sustain it as to the others.'' The phrase, " under legal disabilities," as used in this statute, is defined to include " persons within the age of twenty-one years or of unsound mind, or imprisoned in' the state prison, or out of the United States."^ It does not include married women,' nor persons living in another state of the Union.' The issue as to whether a person seeking to prosecute an ap- peal has been under legal disabilities may be raised on a. mo- tion to dismiss the appeal. If the appellant bases his right to 'R. S. 1894, §645. Hawkins, 28 Ind. 66; Vordermark v. ^ Vordermark v. Wilkinson, 147 Ind. Wilkinson, 147 Ind. 56. 56. 6j{_ g_ ig94^ § J309. See King v. ' Vordermark V. Wilkinson, 147 Ind. Carmichael, 136 Ind. 20. 56. 'See Royse V. Turnbaugh, 117Ind. *Vordermark V.Wilkinson, 147 Ind. 539; City of Indianapolis v. Patter- 56. son, 112 Ind. 344; Eosa v. Prather, = E. S. 1894, § 646; Hawkins v. 108 Ind. 191. 8 Smith V. Bryan, 74 Ind. 515. 158 APPELLATE PRACTICE. § 109 maintain the appeal on the existence of a previous legal disa- bility, he is bound to set it up by proper affidavits when noti- fied of the motion to dismiss.' » Buntin v. Hooper, 59 Ind. 589. CHAPTER 9. WAIVEK OF EIGHT TO APPEAL. § 110. Consequences of doing an act § 113. Waiver by effecting compro- which amounts to a waiver. mise or executing release of 111. Waiver by suit to review judg- errors. ment. 114. Waiver in criminatcase by flee- 112. Waiver by accepting benefit of ing from justice. judgment. § 110. Consequences of doing an act which amounts to a waiver. — ^The right to appeal from an erroneous judgment in a case where the party against whom judgment was given ap- peared at the trial may be waived by his acts or omissions in the conduct of the trial so effectually that no appeal from the judgment will afterward lie, and the party who has suffered judgment in any case may afterward waive his right to main- tain an appeal by any one of a great number of acts or omis- sions. It is provided by the civil' and criminal codes^ that exceptions must be saved at the time objectionable rulings are made, and the failure to save an exception to any ruling is, of course, a waiver of the right to appeal for error in making it.* Also a great many exceptions, if taken, can not be presented to the higher court unless embodied in a proper bill of excep- tions' or order of court,' and the failure to prepare and file such a bill of exceptions, or to procure the entry of such an order of court, waives the right to ask a reversal of the case because of the rulings excepted to. Also, any one of numerous acts and omissions by the appellant in the preparation and conduct of his appeal may prove fatal to it. But acts and ■ E. S. 1894, § 638. * Section 26, ante. ' R. S. 1894, § 1916. = Section 27, ante. ' Sections 7, 24, ante. (159) 160 APPELLATE PRACTICE. §111 omissions of this class, while they might make it certain that the case would not be reversed for the errors complained of might not cause the appeal to be dismissed without considera- tion. Though an omission to file the transcript and assignment of errors within the prescribed time,' or to name the proper parties as appellants and appellees,^ or to do any other act necessary to perfect the appeal, or to file a brief within the time allowed by the rules of court,' might cause the appeal to be dismissed. But even in case of a dismissal of the appeal for any of these causes, a second appeal may be taken.* There is a class of acts, however, such as prosecuting another remedy for relief from the judgment, ' accepting a benefit based on the validity of the judgment,^ compromising the action,' or fleeing from the jurisdiction of the court,' which amount to a positive waiver of the right to present an appeal to the higher court at all, however well exceptions to the errors of the trial court may have been saved, and however complete'the transcript that is procured. The party who does any such act must not only suffer a dismissal of his appeal, but is precluded from taking another appeal. | § 111. Waiver by suit to review Judgment. — A person is seldom permitted to prosecute different remedies in several courts at the same time, and it is accordingly held that prose- cuting a suit in the circuit court to review a judgment for er- rors of law at the trial cuts off the right to appeal from that judgment.' An appeal may, however, be prosecuted from the judgment in the suit to review," when an appeal might have been taken from the original judgment, but not otherwise." 1 Section 107, ajite. v. Knapp, 107 Ind. 340; McCurdy v. 2 Section 126, post. Love, 97 Ind. 62 ; Traders' Ins. Co. v. •'Section 179, posJ. Carpenter, 85 Ind. 350; Klebar v. 4 R. S. 1894, §§669, 1963. Town of Corydon, 80 Ind. 95; Searle « Section 111, posf. v. Whipperman, 79 Ind. 424. ■ 6 Section 112, posf. i»Dallin v. Mclvor, 140 Ind. 386; 1 'Section 113, post. Ex parte Kiley, 135 Ind. 225; Jones 8 Section 114, pos*. v. City of Tipton, 13 Ind. A pp. 3fl2. iiBaker v. Ludlam, 118 Ind. 87; " McCurdy v.Love, 97 Ind. 62 ; Kle- ! Harvey v. Fink, 111 Ind. 249 ; Biischer bar v. Town of Corydon, 80 Ind. 95; ! § 112 WAIVER OF EIGHT TO APPEAL. 161 The cases all declare that the remedy by appeal and by review of the judgment are co-ordinate, and that the adoption of one remedy is an effectual waiver of the right to prosecute the other.' But taking some steps towards the adoption of one remedy which fall short of giving the court jurisdiction, will not destroy the appellant's right to prosecute the other. Thus, where an appeal from a judgment was prayed, but no effort was made to perfect the appeal, it was held that the court which rendered the judgment had power to review the same.^ Where a review of the judgment is asked, not for errors occur- ring in the former trial, but because of material new matter dis- covered after the rendition of judgment,' the reason of the rule does not apply, and the judgment may be reviewed even after it has been affirmed by the supreme court.* § 112. Waiver by accepting benefit of Judgment. — The statute granting appeals to the supreme court in civil cases° provides that the party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon. This was a well recognized rule in the courts before it was enacted in the form of a statute, ° and our courts extend the rule to forbid a party to maintain an appeal, either in a civil' or criminal case,' after he has accepted any benefit based on the legality of the judgment. Thus, a man who has married a second wife can not appeal from a judgment for divorce and alimony granted to his first wife.' Nor can one who has sold the land set off to him by partition," or personal property of Traders' Ins. Co. v. Carpenter, 85 Ind. manv. Kiser, 128 Ind. 258; McCracken 350. V. Cabel, 120 Ind. 266 ; Sterne v. Vert, 'Harvey v. Fink, 111 Ind. 249; 111 Ind. 408; Test v. Larsh, 76 Ind. 350. 452; Martin v. Bott, 17 Ind. A pp. 444; 2 State V. Kolsem, 130 Ind. 434. Seigel y. Metzger, 1 Ind. App. 367; 'R. S. 1894, § 628. Garner v. Garner, 38 Ind. 139; Steph- ^Hill V. Roach, 72 Ind. 57. ens v. Stephens, 51 Ind. 542. = R. S. 1894, §644. 8 Manlove v. State, — Ind. — , «Elliott'8App.Proc.,§150,andcases 53 N. E. Rep. 385. cited. 9 Garner v. Garner, 38 Ind. 139; 'McGrew V. Grayston,144Ind.l65; Stephens v. Stephens, 51 Ind. 542. Sonntag V. Klee, 148 Ind. 536; New- =" McGrew v.Grayston, 144 Ind. 165. 11— App. Pr AnTTnB! 162 APPELLATE PRACTICE. § 112 which he has been declared the owner in an action for replevin,' appeal from the judgment on which his title is based. And a ward who took out of court money paid in by her guardian, which she claimed was only a part of that to which she was entitled, was denied the right to appeal from the judgment by which her right of recovery had been fixed at the small sum she received. In each case it was held that, as the appellant had availed himself of the benefits of the judgment, he must bear its burdens.' It is also held that a partner who has accepted profits earned in the operation of the partnership business by a receiver ap- pointed in a suit for dissolution of the partnership can not maintain an appeal from the order appointing the receiver.' Where the plaintiffs sued to recover $3,000 and obtained a judgment for $12.70, from which they appealed, and afterward, when they came to pay the costs of the action, receipted the docket for the $12.70, which was applied on such costs, in igno- rance of the effect that their action might have on their right to appeal, it was held that the statute imperatively required that the appeal should be dismissed.* Since his attorney of record has full power to accept payment of the judgment recov- ered by a party and to receipt the record for the same,' the acceptance of any money by appellant's attorney will defeat his right to appeal. ° This is true, notwithstanding the attorney receives only the money for which he holds an attorney's lien, or retains all that he receives in payment of his fees for serv- ices.' The same rule applies where the appellant causes an execution against the property of the appellee to be issued on the judgment and purchases property of the appellee at a sale • on such execution. Having accepted the benefit of the judg- 1 Sonntag v. Klee, 148 Ind. 536. « Newman v. Kiser, 128 Ind. 258; 2 Garner v. Garner, 38 Ind. 139. McCracken v. Cabel, 120 Ind. 266; 3 Williams V. Richards, 152 Ind. 528. Seigel v. Metzger, 1 Ind. App. 367. ' Holman v. Stannard, 14 Ind. App. ' McCracken v. Cabel, 120 M. 2bb. ;^4g , 8 Newman v. Kiser, 128 Ind. m; 5 R. S. 1894, §§ 590, 980. McCracken v. Cabel, 120 Ind. 266. § 112 WAIVER OF RIGHT TO APPEAL. 163 ment he can not maintain an appeal on the ground that it is erroneous.' Some English cases have held that where the action of the appellant was clearly occasioned by an excusable mistake he would not be deprived of his right to appeal unlfess to grant it would unjustly prejudice the adverse party/ but there is some doubt whether the Indiana courts would venture to set aside the plain provision of our statute even in an extreme case. The acceptance of a pardon by the defendant in a criminal case is a waiver of his right to appeal from the judgment against him for costs.' It was said, in a New York case,* that a defendant might prosecute an appeal to be relieved from the infamy and discredit attending a judgment of conviction not- withstanding his acceptance of a pardon. But the supreme court of Indiana refused to consider the defendant's appeal in the case cited,' saying that the substantial element of the con- troversy had been eliminated by the pardon, which made it impossible to convict the defendant on a second trial, and that the defendant could not be allowed to admit his guilt to escape imprisonment, and at the same time protest innocence to avoid the payment of a fine and costs. The payment of the judg- ment by the party against whom it was rendered does not pre- vent him from taking an appeal, since the reason of the rule does not apply to a person who might be compelled by execu- tion to make the payment, in the same manner that it does to one who voluntarily and without compulsion accepts a pay- ment made by his adversary.^ Neither will the acceptance of an offer to take a certain sum in settlement of the controversy, in case the appellant should fail to reverse the judgment on ' Sterne V. Vert, 108 Ind. 232; Clark sjyjanlove v. State, — Ind. — , V. Wright, 67 Ind. 224. 53 N. E. Eep. 385. 'Elliott's App. Proc, §151, and «Belton v. Smith, 45 Ind. 291; Bruce cases cited. v. Smith, 44 Ind. 1; Hill v. Stark- ' Manlove v. State, — Ind. — , 53 N. weather, 30 Ind. 434 ; Dickensheets v. E. Rep. 385. Kaufman, 29 Ind. 154; Armes v. * Eighmy v. People, 78 N. Y. 330. Chappel, 28 Ind. 469 ; Hyer v. Norton, 26 Ind. 269; Elliott's App. Proc, § 152. 164 APPELLATE PRACTICE. § 113 appeal, bar the right of the party accepting such offer to main- tain an appeal.' r § 113. Waiver by effecting compromise or exeenting re- lease of errors. — Of course a person may deprive himself of the right to appeal by agreeing, for a consideration, to pay or to accept part of the amount ~^originally claimed by way of compromise settlement of the controversy. Such a compro- mise agreement would end the controversy on which the liti- gation was based, and it is a general rule in the courts that no action can be maintained unless there is a real controversy.' § 114. Waiver in criminal case by fleeing from justice.— It is held that a person convicted of crime waives his right to appeal from the judgment of conviction by escaping from cus- tody and becoming a fugitive from justice.' Thus, where the defendant was convicted of receiving stolen goods and sen- tenced to imprisonment in the state prison, but escaped while being transferred to that prison, it was held that an appeal taken in his iiame a few weeks later could not be maintained.* The facts in that case were presented by affidavits filed in sup- port of a motion made by the attorney-general to dismiss the appeal. Where a defendant who had been found guilty of stealing escaped from custody before judgment was pronounced, and was not recaptured until more than two years afterward, it was held that he had waived his right to file a bill of excep- tions, setting forth the errors which occurred at the trial.' And where the defendant and his counsel voluntarily ab- sented themselves from the court room, with full knowledge that his case would be called for trial, it was held that he was entitled to no relief from the resulting consequences. The court said that the consequences, having been defiantly sought and " Sills y. Lawson, 133 Ind. 137. = Sargent v. State. 96 Ind^ 63 ; Heath « Shoemaker v. Board ol Commis- v. State, 101 Ind. 512; McCorkie v. sioners, 36 Ind. 175; Smith v. June- State, 14 Ind. 39, 47. tion R. Co., 29 Ind. 546 ; Brewington * Sargent v. State 96 Ind. M. V. Lowe, 1 Ind. 21 ; section 142, posf. = Heath v. State, 101 Ind. 612. § 114 WAIVER OP EIGHT OF APPEAL. 165 accepted, should be silently borne.' And in all of the cases cited, it was held that a party may waive any of his constitu- tional or statutory rights to a hearing before the court by re- fusing to submit to its jurisdiction." 'McCorkle v. State, 14 Ind. 39, 47. gent v. State, 96 Ind. 63; McCorkle v. « Heath v. State, 101 Ind. 512; Sar- State, 14 Ind. 39, 47. CHAPTER 10. THE TRANSCEIPT. § 115. The precipe. § 121. Manner of filing transcript of 116. Preparation and form of the an appeal. transcript. 122. Necessity for making transcript 117. Correction of errors in the affirmatively show facta re- transcript before filing. lied on. 118. Numbering pages and lines. 123. Of what facts the court will 119. Making marginal notes. take judicial notice. 120. Assigning errors on the tran- script. § 115. The precipe. — The first step in taking an appeal usually is to order a transcript of the record. The civil code provides that upon the request of the appellant, or upon being served with notice of the appeal, and in either case upon the payment of the proper fee, the clerk shall forthwith make out and deliver to the party at his request, or transmit to the clerk of the supreme court, a transcript of the record in the cause, or so much thereof as the appellant in writing directs, certified and sealed, to which shall be appended the written dire^ctions of the appellant above contemplated, if any.' If no specific directions are given, it is the daty of the clerk, on proper re- quest and the payment of his fees, to make out a complete transcript of the cause. ^ But it is not always desirable that this should be done. It is frequently unnecessary that the entire record should be transcribed in order to present the questions relied on to reverse the judgment. Thus, where the error complained of is committed in making a ruling in relation to the pleadings, it is not necessary on appeal to have a record of ' R. S. 1894, § 661. ' Eeid v. Houston, 49 Ind. 181 ; Barnes v. Pelham, 18 Ind. App. 166. (166) § 115 THE TRANSCRIPT. 167 the proceedings following the commission of that error.' And if any matter not material to the determination of the appeal is certified as a part of the transcript, the supreme court may direct that the person who caused it to be done shall pay the costs thereof.^ Where only parts of the record are ordered, care must be taken to order such parts as will affirmatively show the com- mission of the error relied on to reverse the case. The writ- ten direction to the clerk becomes a part of the record,' and if it omits to call for independent papers or entries essential to present the questions involved below, the appeal will be dis- missed or the judgment affirmed.' The directions must call for such papers and entries as will present in intelligent form the questions sought to be reviewed,' without the aid of any extrinsic matter; for nothing can be considered in determining the appeal except the facts shown by the record.' But a lib- eral construction will be given to the precipe, and incidental entries will be deemed to be impliedly embraced in the specific directions.' It is only matters which have been properly made a part of the record in the court below that can be made so in the court above by incorporating them in the record.' Even an agree- ment of the parties is not sufficient to bring into the rec/)rd on appeal any extrinsic matters that were not made so by an order of court or bill of exceptions, nor to supply any deficiencies in the record as set out in the transcript.^ The provision of the civil code above recited has no application to criminal cases." In such a case it is the duty of the clerk, oh demand, to make ' Brown v. Brown, 133 Ind. 476. ' Allen v. Gavin, 130 Ind. 190. 2 E. S. 1894, § 662. s pavis v. Union Trust Co., 150 Ind. ' R. S. 1894, § 661 ; Allen v. Gavin, 46 ; Blair v. Curry, 150 Ind. 99 ; John 130 Ind. 190. Church Co. v. Spurrier, 20 Ind. App. 'Allen v. Gavin, 130 Ind. 190. 39; section 4, ante; section 208, post. = Brown v. Brown, 133 Ind. 476. ^ Blair v. Curry, 150 Ind. 99-, Davis ^ Davis V. Union Trust Co., 150 Ind. v. Union Trust Co., 150 Ind. 46 ; John 46; Blair v. Curry, 150 Ind. 99; John Church Co. v. Spurrier, 20 Ind. App. Church Co. v. Spurrier, 20 Ind. App. 39. 39. 10 State v. Wallace, 41 Ind. 445, 450. 168 APPELLATE PRACTICE. S HQ out and deliver to a defeadant who gives notice of an appeal such a transcript of the papers, proceedings and judgment in the cause as will enable him to present his case to the appel- late tribunal, without prepayment of fees.' Where the state appeals from a question reserved, the clerk is only required to certify the bill of exceptions and judgment of acquittal.^ But if the affidavit or indictment on which the defendant was tried are not set out in the bill of exceptions, they may be made a part of the record on appeal, by copying them into the tran- script with the appropriate order-book entries.' "Where the precipe calls for the proper parts of the record, an appeal will not be dismissed because of the clerk's failure to incorporate them in the transcript,* but the defects may be cured by a writ of certiorari.' If irnproper matters are included in the tran- script a motion to strike them out is not necessary or proper, but if proper objections are suggested in the briefs of counsel such matters will be disregarded. ° § 116. Preparation and form of the transcript.— Care should be taken in the preparation of the transcript to make its recital of the proceedings in the trial court intelligible. Transcripts have frequently been filed in the supreme and ap- pellate courts in which the record entries were copied from the order book, one after another, with nothing to indicate what they referred to, followed by the judgment or decree ; after which appeared copies of the different papers and bills of ex- , ceptions filed in the case, without anything to identify them as the ones which had been mentioned in the record entries. In such cases the courts invariably decline to guess at the or- der in which the different parts of the record should appear, and refuse to pass on the correctness of any rulings, except such as the transcript affirmatively shows to have been made, and the grounds for making which it discloses. The written pleadings on which the issue was formed,' and a judgment 1 State V. Wallace, 41 Ind. 445. ' Chapter 17, post. 2R. S. 1894, § 1956. ^ggymour, etc., Co. v. Brodhecker, ' State V. Vanderbilt, 1 16 Ind. 11. 130 Ind. 389. ^Millerv. Shriner, 87 Ind. 141. 'Geisen v. Eeder, 151 Inds 529; § 116 THE TKANSCEIPT. 169 from which an appeal will lie/ are indispensable parts of every transcript, except where the action is presented as an agreed case, when pleadings are dispensed with.^ In making up the transcript, the proceedings should always be arranged in the order in which they occurred in the court below,' so that the transcript, when completed, shall exhibit an accurate and methodical history of the cause as it progressed step by step in the lower court.* Apt words should precede the transcript of each record entry, showing when it was made. And if the entry relates to the filing of a paper which forms a part of the record, such paper should be copied as a part of the entry, which should contain apt words designating the paper copied as having been so filed. The proper form of such a record entry will designate the place where the paper filed is to be copied by the words, "here in- sert." All proper entries made by the clerk are parts of the record,* and such entries can only be shown on appeal by be- ing recited in the transcript, and authenticated by the certifi- cate of the clerk. ° The bill of exceptions as well as all other parts of the transcript must precede the clerk's certificate and be identified by it.' The following skeleton form of a tran- script will indicate the manner in which a transcript should be prepared : State of Indiana, County of Marion, In the CiKcniT Coubt of Said County, Septembek Term, 1899. Gboegb Williams V. James Robinson. Be it eembmbeeed, That heretofore, to wit, on the thirteenth (Jay of February, 1899, the plaintiff, George Williams, filed in the office of the clerk of the said court his complaint in the words and figures following : (Here copy the complaint in full.) And be it remembered that afterward, to wit, on Saturday, the twenty- fifth day of February, 1899, before the Honorable Henry Clay Allen, sole judge of said court, the following proceedings were had in said cause, to wit : Come the plaintiff by his attorneys. Smith and Jones, and comes also the Marsh v. Bower, 151 Ind. 356; Eeid the clerk recites in the record matters V. Eeid, 149 Ind. 274. which could only be made part of the 'Section 8, ante. record by bill of exceptions or order ^ Section 94, ante. of court, such recitals will be disre- ' Barnes v. Pelham, 18 Ind. App. garded. Dudley v. Pigg, 149 Ind. 166; .Buskirk's Prac, p. 83. 363, 369. *Buskirk's Prac, p. 83. 'De Hart v. Board, etc., 143 Ind. 'R. S. 1894, § 662. 363; McCormick, etc., Co. v. Smith, * Gray v. Singer, 137 Ind. 257. If — Ind. App. — , Feb. 21, 1899. 170 APPELLATE PRACTICE. § 116 defendant by his attorneys, Eobinson and Brown, and the defendant is ruled to answer the complaint in this cause on the fourth day of March, 1899. And afterward, to wit, on said fourth day of March, 1899,' being the twenty-fourth judicial day of the February term of said court, before the said honorable judge, the following proceedings were had in said cause : Come the parties by their attorneys as aforesaid, and the defendant files his demurrer to the plaintiff's complaint in the words and figures following: (Here insert a copy of the detaurrer in full.) And afterward (as above) come the parties by said attorneys, and the court having heard the argument of counsel, and being fully advised in the premises, does now overrule the defendant's demurrer to the complaint herein, to which ruhng the defendant excepts ; and the defendant is ruled to answer over on March eighteenth, 1899. And afterward (as above) come again the parties by their attorneys, and the defendant now files his answer in three paragraphs in the words and figures following : (Here insert a copy of the first and second paragraphs ol answer, omitting the third because it is afterward struck out.) And the plaintiff is now ruled to reply to each of said paragraphs of said answer. And afterward (as above) come again the parties by their said attorneys, and the plaintiff files his reply to the first paragraph of the defendant's an- swer herein in the words and figures following; (Here insert a copy of the reply in full.) And plaintiff also files his demurrer to the second paragraph of defendant's answer in the words and figures following : (Here insert a copy of the de- murrer in full.) And the plaintiff also files his motion to strike out the third paragraph of defendant's answer, which motion is in the words and figures following:' (Here insert.) And afterward (as above) come again the parties by their said attorneys, and the court being fully advised in the premises, does now overrule the plaintiff's demurrer to the second paragraph of defendant's answer herein, to which ruling the plaintiff excepts. And the court also sustains the plaintiff's motion to strike out the third paragraph of defendant's answer herein, to which ruling the defendant excepts, and ten days are given in which defend- ant may file a bill of exceptions, and the plaintiff is now ruled to plead over to the second paragraph of defendant's answer. And afterward (as above) come again the parties by their said attorneys, and the defendant presents his bill of exceptions No. 1, which is now duly signed by the judge and filed as a part of the record in this cause, in the words and figures following : (Here insert a copy of said bill.) And the plaintiff files his reply in two paragraphs to the second paragraph of defendant's answer, which reply is in the words and figures following: (Here insert a copy of the first paragraph of the reply in full, followed by a statement of the clerk that "by direction of appellant I omit the second para- graph of reply, the same having been amended. See page 25 of transcript for amended second paragraph of reply. "1 ' The motion may be omitted since except as made so by a bill of excep- it appears in the bill of exceptions tions or order of court. No. 1, and is not a part of the record, § 116 THE TRANSCRIPT. 171 , And afterward (as above) come again the parties by their said attorneys, and the defendant files his several demurrers to each of the first and second paragraphs of plaintiff's reply, which demurrer is in the words and figures following: (Here insert a copy of the demurrer.) And afterward (as above) come again the parties by their said attorneys, and the court being fully advised, overrules the demurrer to the first para- graph of plaintiff' s reply, to which ruling the defendant excepts; and the court now sustains the demurrer to the second paragraph of reply and grants plaintiff leave to amend said paragraph. And afterward (as above) come again the parties by their said attorneys, and the plaintiff files his amended second paragraph of reply in the words and figures following : (Here insert a copy of the amended second paragraph.) And afterward (as above) come again the parties by their said attorneys, and the defendant files his demurrer to the amended second paragraph of re- ply in the words and figures following : (Here insert a copy of the demurrer.) And the court does now overrule said demurrer, to which ruling the de- fendant excepts. And afterward (as above) come again the parties by their attorneys afore- said, and issue being joined, this cause is now submitted for trial to the fol- lowing jury : (Here insert names of jurors.) Twelve good and lawful men, resident householders or freeholders of said Marion county, and legal voters therein, who are duly tried, accepted, im- paneled and sworn impartially to try the issues joined between the parties in this cause and a true verdict render according to the law and the evidence ; and evidence is now introduced ; and the time for adjournment having arrived, the said jurors are now admonished by the court according to law, and given permission to separate until court again convenes ; and court is now adjourned until 9 o'clock to-morrow morning. And afterward (as above) come again the parties by their said attorneys, and the jury heretofore impaneled and sworn in this cause come also, and further evidence is introduced; and the evidence being fully heard, together with the argument of counsel, the court of its own motion instructed the jury as follows: (Here insert a copy of the instructions given to the jury with the exceptions iudorsed thereon.) And the court at the request of the plaintiff gave to the jury the following instructions : (Here insert a copy of such instructions and the exceptions in- dorsed thereon.) But the following instructions, which were duly submitted to the court by the plaintiff at the proper time with a proper request that they should be given to the jury, the court refused to give, to wit: (Here insert a copy of the instruction asked by plaintiff and refused, and the exceptions indorsed thereon.) And the court also at the request of the defendant gave to the jury the fol- lowing instructions : (Here insert a copy of the instructions and exceptions thereto.) But the following instructions which the defendant at the proper time duly requested the court to give to the jury, the court refused to give, namely: (Here insert a copy of such instructions and exceptions indorsed thereon.) And the court, at the request of the defendant, instructed the jury that ^'•^ APPELLATE PRACTICE. { JJg v^hen they rendered a general verdict they should find specially upon the particular questions of fact inquired of in the following inteLgatorieB t±lere insert a copy of such interrogatories.) And thereupon, the jury retired in charge of a sworn officer for the purnose of dehberation upon their verdict. ^ And the said instructions given by the court of its own motion and at the request of the parties are now signed by the judge, and, together with those asked by each of said parties, are now duly filed as a part of the record herein. And afterward (as above) come the parties by their said attorneys and come also the jury heretofore impaneled and sworn to try the issues joined in this cause, into open court, in charge of said sworn officer, and return into open court the following general verdict : (Here insert a copy of the verdict.) And the said jury also return into open court with the said verdict the following answers to the interrogatories submitted to them, in the words and figures following; (Here insert a copy of the interrogatories and answers thereto.) And, thereupon, the defendant filed his motion for judgment in his favor on the answers to the interrogatories, notwithstanding the general verdict, in the following words : (Here insert a copy of said motion.) And afterward (as above) come again the parties by their said attorneys, and the court being fully advised, overrules defendant's motion for judgment on the answers to interrogatories, to which ruling the defendant excepts. And the defendant now files his written motion for a venire de novo in the words and figures following: (Here insert a copy of the motion.) Which motion the court now overrules, to which ruling the defendant now excepts. And the plaintiff now moves the court for judgment in his favor on the general verdict herein, which motion the court sustains ; it is therefore con- sidered and adjudged by the court, etc. (Here copy the judgment in full.) And afterward (as above) and within the term at which the judgment in this cause was pronounced, come again the parties by their said attorneys, and the defendant files his written motion and reasons for a new trial in the words and figures following : (Here insert a copy of said motion and reasons.) And argument is heard, and the court being fully advised does now over- rule said motion for a new trial, to which ruling the defendant excepts, and ninety days are given in which to prepare and file a bill bf exceptions. And the defendant now presents his motion to set aside the judgment heretofore pronounced in this cause. And the court does now sustain said motion and does now order that the judgment in favor of the plaintiff heretofore rendered in this cause shall be set aside artd held for naught, to which ruling the plaintiff excepts, and there- upon the defendant moves the court itf writing to arrest the judgment in this cause, which motion is in the words and figures following: (Here insert a copy of said motion.) And afterward (as above) come again the parties by their attorneys, and the court does now overrule defendant's motion in arrest of judgment, to which ruling the defendant excepts. It is therefore considered and adjudged by the court, etc. (Here copy the judgment.) § 116 THE TRANSCRIPT. 173 And the defendant now objects and excepts to the judgment as rendered, and moves the court to modify said judgment so that it shall grant relief under the valuation and appraisement laws, which motion the court does now overrule, to which ruling the defendant excepts, and ten days is given in which to file a bill of exceptions. And afterward (as above) come the parties by their said attorneys, and the defendant presents his bill of exceptions No. 2, and prays that the same may be signed, sealed and made a part of the record. And the judge does now sign the same and file the same as a part of the record herein, in the i words and figures following : (Here insert a copy of a proper bill of exceptions, setting forth the motion to modify the judgment with the ruling thereon and exception thereto.) And the defendant also presents his bill of exceptions No. 3, containing the evidence and the rulings related thereto made in the course of the trial, which is now examined and signed by the judge and filed as a part of the record herein, in the words and figures following: (Here insert original bill of exceptions containing evidence, etc.) Conclude with clerk's certificate. If the defendant did not appear and the judgment was by default, a copy of the summons and the sheriff's return thereon should appear immediately af- ter the entry showing the filing of the complaint. The record entries indicated above and the papers which it is indicated are to be inserted are made parts of the record by the statute.' That is, the complaint, answer, reply, and de- murrers, and rulings thereon, and the exceptions reserved to such rulings,Hogether with the motion for a new trial' and other direct motions,' and the rulings thereon and exceptions thereto. But not collateral motions, ° such as a motion to strike out part of a pleading,^ a motion to require a party to make a pleading more specific,' a motion to modify the judg- ment,' or a motion to separate a pleading into paragraphs.' 'R. 8. 1894, § 662. §§ 640, 641, 682; Dudley v. Pigg, 149 ''Kesler v. Myers, 41 Ind. 543; Ind. 363, 368. Heizer v. Kelly, 73 Ind. 582. ' Line v. State, 131 Ind. 468 ; Boyce 'Smith V. James, 131 Ind. 131. v. Graham, 91 Ind. 420; Manhattan, « Section 25, BMJe. etc., Co. v. Doll, 80 Ind. 113; Lake 'McDonald v. Geisendorft, 128 Ind. Erie, etc., R. Co. v. Clark, 7 Ind. 153; Balue v. Richardson, 124 Ind. App. 155. 480; City of Elkhart v. Witman, 122 » Russ v. Russ, 142 Ind. 471 ; Scan- Ind. 538; City of Seymour v. Cum- hn v Stewart, 138 Ind. 574; Marsh v. mins, 119 Ind. 148; Board, etc., v. Morris, 133 Ind. 548; Quill v. Galli- Hill, 115 Ind. 316; Conaway v. Cona- van, 108 Ind. 235; Adams v. La Rose, way, 10 Ind. App. 229; Union Cen- 75 Ind. 471; Evansville, etc., R. Co. tral Lifelns.Co.v. Huyck,5Ind. App. v. Frank, 3 Ind. App. 96. 474. i>Union Cen., etc., Co. v. Huyck, 5 * City of Indianapolis v. Consumers', Ind. App. 474. etc., Co., 140 Ind. 246; R. S. 1894, l'^4 APPELLATE PRACTICE. § 116 When a pleading is amended, it ceases to be a part of the record and must not be certified upon appeal/ and even if cer- tified, it can not be considered by the supreme court.* When the court strikes out a pleading it ceases to be apart of the rec- ord, and can not be considered on appeal unless it and the order striking it out are made parts of the record by a bill of exceptions.' But if the pleadings stricken out are copied into the transcript certified to by the clerk, and there is no bill of exceptions showing that they were stricken out, they must, be treated as a part of the record.* The filing of a motion in arrest of judgment cuts off the right to move for a new trial, except for causes discovered aft- erward;' and, therefore, the motion in arrest should not be made until after the motion for a new trial has been disposed of. The above form of transcript shows the entry of judg- ment immediately after the verdict, and the filing of a motion for a new trial after judgment, under the provisions of the statute. ° Since a motion in arrest of judgment must precede the rendition of judgment,' it then shows an application to the court to set aside the judgment in order that the suffi- ciency of the complaint might be tested by a motion in ar- •rest. It also shows the instructions to have been, made a part of the record without a bill of exceptions." In order to do this, care must be taken to have the instructions properly signed by the judge and filed as a part of the record,' and the ' R. S. 1894, § 662. Board of Commissioners v. Karp, 90 2 Baldwin v. Sutton, 148 Ind. 591; Ind. 236; State v. Krug, 82 Ind. 58; Hedrick V. Whitehorn, 145 Ind. 642; Elliott v. Stone City Bank, 4 Ind. Town of Whiting v. Doob, 152 Ind. App. 155. 157 ; Aydelott v. Collings, 144 Ind. 602 ; « Dudley v. Pigg, 149 Ind. 363. Berghoff V. McDonald, 87 Ind. 549; ^Eckert v. Binkley, 134 Ind. 614; Heizer V. Kelly, 73 Ind. 582; Kesler Cincinnati, etc., E. Co. v. Case, 122 V. Myers, 41 Ind. 543, 548; Barnes v. Ind. 810; School City, etc., v. Heinz- Pelhatn, 18 Ind. App. 166. man, 13 Ind App. 195. 4 Knowlton v. Dolan, 151 Ind. 79; « R. S. 1894, § 568. Dudley v. Pigg, 149 Ind. 363, 369, and ' Smith v. State, 140 Ind. 343; Pot- cases cited. Holland v. Holland, 131 ter v. McCormack, 127 Ind. 439; Bay- Ind. 196; McDonald v. Gelsendortf, less v. Jones, 10 Ind. App. 102. 128 Ind. 153 ; Rhine v. Morris, 96 Ind. ' R. S. 1894, § 542. 81; Friedline v. Stat^, 93 Ind. 366; ^r. g. 1894, § 542. § 117 THE TRANSCRIPT. 175 exceptions taken properly indorsed on the margin of each in- struction excepted to.' But the instructions to the jury, and exceptions thereto, may also be made a part of the record by a bill of exceptions or order of court in a civil case,^ in which case it is not necessary to show that the instructions were otherwise filed.' It is also possible to make many other collateral mat- ters part of the record by an order of court.* It is best to put the instructions and any other collateral matters in bills of exceptions separate from the one which contains the evi- dence, for the provisions of law as to certifying up the evi- dence on appeal without copying does not apply to any other matters except the evidence. ° Instructions given to the jury in criminal actions, and the exceptions taken thereto, can not be made a part of the record in any other way than by a bill of exceptions.* § 117. Correction of errors in the transcript before iiling;. — When the transcript is completed, it should be carefully ex- amined to see that it corresponds with the original record, and that it recites the doings of the trial court, and the papers in the cause, in such order and in such language as to present an intelligent history of the case. It is the imperative duty of the appellant to produce and file in the court to which an ap- peal is taken a complete and correct transcript of the record, or so much thereof as will clearly show the error of which he complains and its prejudicial character,' and this duty can only be discharged by seeing to it that the transcript is correct before it is filed. The appellant's attorney is not justified in ^E. S. 1894, §544; Sfiction 28, ante. Leach v. Mattix, 149 Ind. 146; sec- 'City of Columbus v. Strassner, 138 tion 35, ante. Ind. 301 ; Plank v. Jackson, 128 Ind. « Bealer v. State, 150 Ind. 390; Han- 424; Ohio, etc., R. Co. v. Dunn, 138 nan v. State, 149 Ind, 81; State v. Ind. 18; Citizens', etc., R. Co. v. Hunt, 137 Ind. 537; Leeper v. State, Hobbs, 15 Ind. App. 610; sections 26, 12 Ind. App. 637; section 26, ante. 27, ante. ' Morningstar v. Musser, 129 Ind. 'Ohio, etc., R. Co. v. Dunn, 138 470; Fellenzer v. Van Valzah, 95 Ind. Ind. 18. 128; Marsh' v. Bower, 151 Ind. 356; 'Section 27, ante. Geisen v. Reder, 151 Ind. 529; Reid ^Gish V. Gish, 7 Ind. App. 104; v. Reid, 149 Ind. 274. 176 APPELLATE PRACTICE. § 117 relying on the opinion of the clerk as to what it takes to con- stitute a valid transcript.' If any of the original papers are missing, or any rulings of the court are erroneously entered, steps should be taken at once to supply the one and correct the other. ^- While a correction of the record may often be had after the transcript is filed/ a failure to see that the record is correct before it is filed will certainly prove expensive to the appel- lant, and may prove fatal. The appellant's attorney, how- ever, should never make any corrections in the record him- self.* He should note on a separate paper any alterations which he desires to have made, and should then submit them to the person charged with the preparation of the transcript, and have the required corrections made by him. ^ Any changes and interlineations in a bill of exceptions or transcript, made in the handwriting of appellant's attorney, will naturally ex- cite a suspicion that the record has been tampered with, and may lead to a summary dismissal of the appeal.' An appeal is tried only by the record as shown by the transcript, and an accurate record and a correct transcript of it are the first essen- tials in taking an appeal.' Any deficiencies in the record can not be cured even by an agreement of the parties themselves,' nor can they be amended or supplied by affidavits filed with the transcript.' Careful at- tention must also be given to the certificate of the clerk by which the transcript is authenticated, for unless this is suffi- cient, the appeal will fail." The statute requires that the cer- tificate shall show the transcript to contain "true and complete ' Salem Bedford Stone Co. v. Hobbs, ' Blair v. Curry, 150 Ind. 99 ; Davis 144 Ind. 146. v. Union Trust Co., 150 Ind. 46; John '' Sections 214, 215, post. Church Co. v. Spurrier, 20 Ind. App. 3 Chapter 17, posf. 39. 'Montgomery v. Gorrell, 49 Ind., ^ City of Bloomington v. Phelps, 149 230. Ind. 596; "Williams v. Freshour, 136 * Montgomery v. Gorrell, 49 Ind. Ind. 361; Smith v. Goetz, 20 Ind. App. 230. 142. « Montgomery v. Gorrell, 49 Ind. i» Jackson v.Van Devender, 76 Ind. 230. 27; Conkey v. Conder, 137 Ind. 441; ' Section 4, ante; section 208, post. Richwine v. Jones, 140 Ind. 289. § 117 THE TRANSCRIPT. 177 copies" of all the papers and entries in the cause,' or so much thereof as has been ordered by the appellant/ Where only a part of the record is ordered, the certificate must specify what the transcript contains,' and where a bill of exceptions con- taining matters not otherwise made a part of the record is in- corporated in the transcript, the certificate should so state.* It is the clerk's general certificate as to what is in the tran- script by which the authenticity of the bill of exceptions found therein must be attested.' It has been held sufiicient to certify that the transcript contained "true and correct" copies of the papers and entries in the cause, as such words have the same meaning as the words "true and complete."* It is the certifi- cate of the clerk and not the signature of the judge which gives verity to the matters that are properly shown by record entries,' and it is necessary that such certificate should be signed by the clerk' and authenticated by the seal of the court,' or the transcript will receive no consideration on appeal." The certificate should not precede" nor form a part of the bill of exceptions,'^ but should be at the conclusion of the transcript, and authenticate the bill of exceptions as well as all other pa- pers in the cause. An opportunity may be granted to correct the clerk's certificate after the transcript is filed," but unless the certificate is made sufficient, the appeal must be dis- missed." Where a cause has been transferred from one court to another before trial, care must be taken that the record made in the first court is duly authenticated by the clerk of 'E.S. 1894, §466; Wiseman V.Linn, 'Conkey v. Conder, 137 Ind. 441. 39Ind. 250. See Chicago, etc., E. Co. v. Wolcott, ' Boots V. Griffiths, 97 Ind. 241. 141 Ind. 267, 276. ' Richwine v. Jones, 140 Ind. 289. "• Jackson v.Van Devender, 76 Ind. 'Eiohwine v. Jones, 140 Ind. 289; 27. Wolf V. Goodwin, 2 Ind. App. 79. "De Hart v. Board, etc., 143 Ind. ' Winstandley V. Breyfogle, 148 Ind. 363; Huber, etc., Co. v. Busey, 16 618. Ind. App. 410. «Bailey v. Martin, 119 Ind. 103; "Winstandley v.Breyfogle, 148Ind. Walker V. Hill, 111 Ind. 223; Ander- 618. son V. Ackerman, 88 Ind. 481. " Section 216, post. 'Gray v. Singer, 137 Ind. 257. "Jackson v.Van Devender, 76 Ind. ' Watson V. Finch, 150 Ind. 183. 27. 12 — App. Pkacticb. 178 APPELLATE PRACTICE. § 118 that court over its seal.' When the clerk is directed to amend, his certificate he can not be required to certify to any facts except such as the record below shows to be true/ arid, there- fore, carie must be taken to prepare a proper record in the trial court before the transcript is ordered. § 118. Numbering pages and lines. — When it has been as- certained that the transcript contains a correct copy of the rec- ord in the court below, the pages of the transcript should be numbered, the numbers being written at the bottoms of the pages, ^ and, unless it has been written on record paper in which the lines were already numbered, the lines of every page con- taining anything to which the parties may have occasion to re- fer in their briefs should also be numbered. The rule of court' requires that the lines of each page shall be numbered, but this rule has never been strictly enforced. The rules, of court, however,' require that all matters referred to in the briefs shall be pointed out by a specific reference to the pages and lines of the transcript, and the courts have repeatedly held that where a party neglected to do this, the court will not search the rec- ord for the alleged errors, but will simply refuse to consider them.^ in order that this may be done it is essential that the transcript should be paged, and the lines of all pages to which reference is made should be numbered. Disobedience to other parts of the same rule which requires the pages and lines to be numbered has frequently been punished by a dismissal of the appeal.' § 119. Making marginal notes. — The appellant must also cause marginal notes to be placed on each page of the transcript in their appropriate places, indicating the several parts of the 1 Garrigusv. Board, — lud.App.—, « Siberry v. State, 149 Ind. 684; 53 N. E. Eep. 776; Western TJ. Tel. Harness v. State, 143 Ind. 420; Mem- Co. V. Todd, — Ind. App. — , 54 N. E. phis, etc., Co. v. Pikey, 142 Ind. 304; Eep. 446. Skaggs v. City' of Martinsville, 140 ' Louisville, etc., R. Co. v. Kendall, Ind. 476; May v. State, 140 Ind. 88; 138 Ind. 313. Evans v. Koons, 10 Ind. App. 603; 8 Rule 3 Sup. Ct. Bell v. Pavey, 7 Ind. App. 19; seotioa * Rule 3 Sup. Ct. 182, post. ^ Rule 22 Sup. Ct. ' Section 119, post. § 119 THE TRANSCRIPT. 179 pleadings in the cause, the exhibits, if any, the orders of the court, and the bills of exception. Where the evidence is set out by deposition or otherwise, the name of each witness shall be stated in the margin and whether the examination is di- rect, cross, or re-direct. The appellant shall also note on the margin all motions and rulings thereon, and the instructions given and refused, in all cases where questions relating to them are presented.' When a pleading or the evidence of a single witness extends over more than one page of the tran- script, the marginal note must be repeated on each page. The marginal notes required by this rule are of the utmost con- sequence to avoid the danger of overlooking any item of im- portance.^ They serve the purpose of a table of contents, or an index, and in the numerous references that must be made to the record in deciding an appeal, the marginal notes are most necessary, not only to save the time of the court, but also to secure accuracy of examination.' For many years the rule of court requiring that marginal notes should be made was not very strictly enforced ;* and even an entire disregard of it was not visited with any pen- alty more severe than causing such notes to be made at the appellant's expense.^ But the later authorities declare that this is a rule of court which it is not only the right but the duty of the court to enforce,* and'numerous appeals have been dismissed for failure to comply with this rule, in which no opinions were written, as well as several in which opinions were prepared.' Where seasonable application was made, the court has permitted a party to perfect his appeal by making 'Rale 3; Sup. Ct. v. State, — Ind. App. — , 53 N. E. ' Smith V. State, 140 Ind. 340 ; Smith Rep. 777 ; Otis v. Weiss, — Ind. App. V. State, 137 Ind. 198. , 53 N. E. Rep. 428; Babcock v. ^ Smith V. State, 140Ind. 340; Smith Johnson, — Ind. App. — , 53 N. E. V. State, 137 Ind. 198. Rep. 241; Citizens', etc., R. Co. v. « Elliott's App. Proc, § 204. Union Trust Co., 19 Ind. App. 402. ■ ^Wheeler V. Barr, 6 Ind. App. 530; 'Egan v. Ohio, etc., R. Co., 138 Ind. Alfred Shrimpton, etc., v. Keyes, 17 274; Otis v. Weiss, — Ind. App. — , Ind. App. 305. 53 N. E. Rep. 428 ; Baboock v. Johnson' ^ Smith V. State, 140 Ind. 340; Egan — Ind. App. — , 53 N. E. Rep. 241 • V. Ohio, etc., R. Co., 138 Ind. 274; Harrod v. State, — Ind. App. [ Smith V. State, 137 Ind. 198; Harrod 53 N. E. Rep. 777. 180 APPELLATE PRACTICE. §120 marginal notes after a motion to dismiss for lack of them had been filed ;' but the fact that marginal notes were made after an appeal had been dismissed was held to be no reason for re- instating the appeal.* The court said, in the case cited, that it was inclined to en- force a more strict compliance with the rule than had been required in most instances in the past. The question whether an appeal shall be dismissed for failure to comply with the rules of court rests largely in the discretion of the court,' and no appeal has ever been dismissed where a sufficient number of marginal notes were made to indicate fully all the parts of the transcript which the court would probably have occasion to examine in deciding the appeal. The marginal notes re- quired consist of the words "complaint," "first paragraph of complaint," "second paragraph of reply, ""bill of exceptions," "instructions," "verdict," "judgment," "bill of exceptions, No. 1," etc., indorsed on the margins of the different pages of the transcript on which the matters indicated are written. It is best to make one such annotation on every page of the tran- script, and additional annotations on pages containing more than one matter that should be so indicated. § 120. Assigning errors on the transcript. — After the tran- script is properly prepared and corrected, the appellant should prepare his pleading or complaint in the higher court. This will consist of the title of the case, in which the full names of all the appellants and all the appellees shall be recited,* and an allegation by the appellant, or by one or more of them sep- arately,^ that "there is manifest error in the within record for the following reasons," specifying the errors committed by the trial court for which a reversal of the judgment is asked, each of which specifications must be complete in itself," and all of which must be properly numbered.' The rules of court 1 Smith V. State, 137 Ind. 198 ; Smith = Breyfogle v. Stotsenberg, 148 Ind. V. State, 140 Ind. 340. 552. 2 Egan V. Ohio, etc., E. Co., 138 Ind. « Section 127, post ; Louisville, etc., 274. R. Co. V. Norman, 17 Ind. App. 355; "Wheeler v. Barr, 6 Ind. App. 530. Baldwin v. Sutton, 148 Ind. 591. « Section 126, post. ' Rule 4 Sup. Ct. § 120 THE TRANSCRIPT. 181 require that the full names of all the parties shall be contained in the assignment of errors/ and it is usually convenient to recite their names in the title. But where the name of a party is omitted from the title, the omission maybe cured by setting it out in the body of the assignment.^ Where part of the names are entirely omitted, as where the title is merely given as "Smith at al. v. Jones et al.," with- out any mention of the other parties in the body of the assign- ment, the appeal will be dismissed.' The specifications of er- rors should only relate to final rulings of the court, and not to those which were afterward reviewed by a motion for a new trial or otherwise. That "the court erred in overruling the appellant's motion for a new trial," covers all the reasons stated in the motion for a new trial for which a new trial could legally be asked,* and a specification that the court erred in permitting a certain witness to testify, or any other specifica- tion which could legally have been made in a motion for a new trial,, amounts to nothing.' Rulings on demurrers to plead- ings, and other rulings which can not properly be questioned by a motion for a new trial, or by an application to the trial court for some other relief, should be separately assigned as error.* As the assignment of error is appellant's pleading in the appellate tribunal, it should be signed by him or his attor- ney.' It must be written on some part of the transcript,' or on a paper attached to the transcript so as to become a part of it.' Blank pages are usually left at the end of the transcript for this purpose. ^Eule 6 Sup. Ct. ; section 126, post. 287; Burnett v. Milnes, 148 Ind. 230, ' Ferguson v. Despo, 8 Ind. App. 235 ; Shea v. City of Muncie, 148 Ind. 623. 14; Beacher v. State, 19 Ind. App. 'Section 126, posj. Barnett v. Brom- 100; Sunnyside, etc., Co. v. Eeitz, ley, etc., Co., 149 Ind. 606; City of 14 Ind. App. 478; City of Terre Haute South Bend v. Thompson, 19 Ind. v. Fagan, 21 Ind. App. 371 ; section App. 19. 133, post. * Pfau V. State, 148 Ind. 539 ; City ^ Section 133, post. of Terre Haute v. Fagan, 21 Ind. 'State v. Delano, 84 Ind. 52. See- App. 371 ; section 133, post. tion 131, post. = Zimmerman v. Gaumer, 152 Ind. 'R. S. 1894, §667. 552; Singer v. Tormoehlen, 150 Ind. 'Rule 4 Sup. Ct. ; section 125, post. 182 APPELLATE PRACTICE. § 121 § 121. Manner of filing transcript of an appeal. — When the transcript has been fully prepared and the assignment of errors indorsed thereon, it is ready to file. It may be filed at any time when the clerk of the supreme court is in his ofSce- that is, between eight o'clock in the forenoon and five o'clock in the afternoon,' on any day in the year except Sundays and an occasional holiday. The method of filing a transcript is simply to send or take it to the clerk's office with a request that he shall mark it filed, and, if desired, shall issue the proper notices. It may be sent by express, addressed to the clerk of the supreme court at Indianapolis, accompanied by a proper request in writing; or it may be carried to the clerk's office and handed to him; but, even then, the request that no- tice be issued should be in writing, and set out the names and addresses of those to whom notice is to be given. If a term appeal has been taken, ^ or notice has been served below,' or if it is known that the appellees and co-parties will enter an ap- pearance and waive notice,* the direction to the clerk as to issuing notice may be dispensed with. If notice is given be- low, proof of that fact must be filed with the transcript. If the appellant wishes to obtain a supersedeas, he should present a proper application ' and bond/ at the time he files his tran- script. § 122. Necessity for making transcript affirmatively show facts relied on. — All reasonable presumptions are indulged by an appellate tribunal in favor of the rulings and judgment of the trial court,' and unless the record properly exhibits the alleged errors for which a reversal of the judgment is asked, it will be presumed that they do not exist, and the judgment will be affirmed.' It is, therefore, the duty of the appellant to 1 Acts 1897, p. 308. Ind. 114; Ferguson v. Hull, 136 Ind. bisection 165, posf. 339; Taylor v. Birely, 130 Ind. 484; ' Section 154, post. Crawford v. Anderson, 129 Ind. 117; * Sections 163, 164, post. Miller v. Cook, 127 Ind. 339 ; Center 5 Section 172, post. School Tp. v. State, 20 Ind. App. 312; « Section 173, posS; R. S. 1894, § 653. Tegarden v. Phillips, 14 Ind. 4PP- 'Close V. Pittsburgh, etc., B. Co., 27; Elliott's App. Proc, § 710. 150 Ind. 560; Campbell v. State, 148 « Campbell v. State, 148 Ind. 527; Ind. 527; Deweese v. Button, 144 Taylor v. Birely, 130 Ind. 484. § 123 THE TRANSCRIPT. 183 see that the transcript is so made that it will afBrmatively show the existence of reversible error.' The mere showing of a probability that the court erred is not sufficient,^ but the judgment must stand until it is affirmatively shown to be er- roneous,' and that fact can only be shown by a duly authenti- cated transcript.* § 123. Of what facts the court will take Judicial notice. — The transcript, however, need not recite matters of which the courts take judicial notice.' These include most matters of common and general knowledge,' such as the general laws in force in a community,' the laws of nature,' and other matters of which the sources of knowledge 'are equally open to all persons. We give below some of ii^e matters of which the courts of this fetate have taken j udicial notice in the decisions of pending cases .' Acts of congress in force in this state,'" public statutes of this state, and the time when they took effect," and Whether they are now in force," are matters of judicial knowledge. So is the question whether a statute was properly enacted," authenti- cated," and published;'* but the courts of this state can nottake judicial notice of the statutes of another state, changing the 'Bozeman v. Cale, 139 Ind. 187; Van Dora v. Bodley, 38 Ind. 402; Morningstar V. Musser, 129 Ind. 470; Evans v. Browne, 30 Ind. 514; State Fellenzer v. Van Valzah, 95 Ind. 128; v. Trustees, etc., 5 Ind. 77. Collins V. IT. S. Express Co., 27 Ind. 'City of Crawfordsville v. Braden, 11 ; Center School Township v. State, 130 Ind. 149, 158. 20 Ind. App. 312. ^ Hamilton v. Shoaff, 99 Ind. 63. * Crawford v. Anderson, 129 Ind. i" Van Dora v. Bodley, 38 Ind. 402; 117. Evans v. Browne, 30 Ind. 514; State 'Close V. Pittsburgh, etc., E. Co., v. Trustees, 5 Ind. 77. 150 Ind. 560. . " E. S.1894, § 239 ; Sanders v. State, * Bozeman v. Cale, 139 Ind. 187, and 77 Ind. 227 ; Dowdell v. State, 58 Ind. cases cited; section 4, introduction, 333; Cordell v. State, 22 Ind. 1. ante; section 1, 2, chapter 17, post. '^ Cordell v. State, 22 Ind. 1 ; Mat- = E. S. 1894, § 377; Ervin v. State, 150 Ind. 332 ; State v. Downs, 148 Ind 324. " Hedderich v. State, 101 Ind. 564 Indianapolis, etc., E. Co. v. Clay, < Ind. App. 282, 285. 'Hamilton v. Shoaff, 99 Ind. 63 lock V. Ind., etc., E. Co., 16 Ind. 176; State V. Bailey, 16 Ind. 46. 13 State V. Denny, 118 Ind.449 ; Stout V. Board, etc., 107 Ind. 843; Board, etc., V. Burford, 93 Ind. 383. " Hovey v. State, 119 Ind. 395. 1= Cain V. Goda, 84 Ind.209. 184 APPELLATE PRACTICE. § 123 common law,' or passed in aid thereof.* Such laws must be pleaded and proved as facts.' Neither will the courts take ju- dicial notice of the contents of the legislative journals in de- termining whether a statute is valid/ but will accept as valid an act which is properly authenticated by the signatures of the presiding officers of the different houses of the legislature.* The courts take judicial notice of the creation of a county by a public statute, and of the existence, location, boundaries and areas of the counties in the state, their situation with reference to each other,* and the names of the different counties.' But they will not take judicial notice of the time Avhen a county was created by a board of commissioners under the general law,' nor of the names of townships composing a county.' The courts will take judicial notice of what towns are the county seats of the several counties," and of the removal and relocation of any county seats removed and relocated in pursuance of the provisions of a public statute," and they will take judicial notice of the fact that a county seat or other town or city is incorpo- rated." But the courts can not take judicial notice of the number of wards or the number of councilmen in a city," nor that a given ordinance has been enacted and is in force therein;" though they may take judicial notice that the common council 1 Smith v.MuncieNat'l Bank, 29 Ind. * Buckinghouse v. Gregg, 19 Ind. 158 ; Cunningham v. Jacobs, 120 Ind. 401. 306; Buchanan v. Hubbard, 119 Ind. 'Bragg v. Board of Commissioners, 18^; Bethell v. Bethell, 92 Ind. 318; 34. Ind. 405. Eobardsv. Marley, SOInd. 185. "Mode v. Beasley, 143 Ind. 306; ^Teutonia Loan, etc., Co. v. Tur- Cluck v. State, 40 Ind. 263. rell, 19 Ind. App. 469. " Mode v. Beasley,143 Ind. 306. ^Swank V. Hufnagle, 111 Ind. 453; "pguugyiyania Co. v. Horton, 132 Milligan v. State, 86 Ind. 553; Wilson Ind. 189 ; Town of Albion v. Hetrick, V. Clark, 11 Ind. 385. 90 Ind. 545; Stultz v. State, 65 Ind. 'Coleman v. Dobbins, 8 Ind. 156; 492; Town of Thorntown v. Fugate, Skinner v. Deming, 2 Ind. 558. 21 Ind. App. 537. But see Sipe v. 5 Hovey v. State, 119 Ind. 395. Holliday, 62 Ind. 4. « Board of Commissioners v. State, "gaker v. Tobin, 40 Ind. 310; Mo- 147 Ind. 476; Denney v. State, 144 berry v. City of JefEersonville,38 Ind. Ind. 503; Board of Commissioners V. 198. Spitler, 13 Ind. 235. " Green v. City of Indianapolis, 25 'Turbeville v. State, 42 Ind. 490. Ind. 490. § 123 THE TRANSCEIPT. 185 of the city has authority to enact a particular order.' Neither can the courts take judicial notice of the exact boundaries of a town or city.^ The court is bound judicially to know the provisions of gen- eral acts for the incorporation of companies, but not- whether a particular corporation was duly organized;' though it has been held that the courts of a county, in which the articles of association of a drainage company were filed, could take judicial notice of its organization and existence.' But the court must take judicial notice of an act declared to be a public act passed before the adoption of the present state constitution by which a railroad company was incorporated. ° The courts also take judicial notice that the trustee of a civil township is also trustee of the school township embracing the same terri- tory. ° They also take judicial notice of the time fixed by law for holding terms of court in the different counties,' and of the duration of such terms.* Though where the law provides that a term shall continue for a certain time and as much longer as may he necessary, the supreme court can not judicially know that an act done soon after the expiration of the period fixed for the duration of such term was not done while the court was regularly in session.' The courts also take judicial notice of the regular sessions of boards of commissioners, "and of the terms of the circuit ' Green v. City of Indianapolis, 25' « State v. McDonald, 106 Ind. 233 ; Ind. 490. Inglis v. State, 61 Ind. 212. * Town of Cicero V. Williamson, 91 'Eoberts v. Masters, 40 Ind. 461; Ind. 541 ; City of Indianapolis v. Mc- McGinnis v. State, 24 Ind. 500 ; Buck- Avoy, 86 Ind. 587; Grusenmeyer v. inghouse v. Gregg, 19 Ind. 401; Ind., City of Logansport, 76 Ind. 549. etc., Assn. v. Paxton, 18 Ind. App. 'Cicero, etc., Co. v. Craighead, 28 304; Shoffer V.Milwaukee, etc., Ins. Ind. 274 ; Delawterv. Sand Creek,etc., Co., 17 Ind. App. 204; Sanders v. Co., 26 Ind. 407; Eel River, etc., Hartge, 17 Ind. App. 243. Assn. V. Topp, 16 Ind. 242; Herod v. ^ Sanders v. Hartge, 17 Ind. App. Rodman, 16 Ind. 241. 243; Shoffer v. Milwaukee, etc., Ins. ' Delawter V. Sand Creek, etc., Co., Co., 17 Ind. App. 204; Ind., etc., 26 Ind. 407. , Assn. v. Paxton, 18 Ind. App. 304. = Cincinnati, etc., R. Co. v. Clifford, ' Bostwick v. Bryant, 113 Ind. 448. 113 Ind. 460. " Collins v. State, 58 Ind. 5. 186 APPELLATE PRACTICE. § 123 judges and their names/ and they will also take judicial notice of the facts shown 'by their own recdrds with regard to the case under consideration," and whether certain attorneys appeared in the trial court.' But a board of commissioners can not take judicial notice of its own order or judgment in a different case on the subject that is under consideration.* The supreme court will not take notice of the rules of a trial court unless they are properly brought into the record by a bill of exceptions.^ The courts take judicial notice of the geographj' of the coun- try, including the location of stations on railroads, ° and the counties in which they lie,' and in what county a place a cer- tain distance from such a station in a given direction lies,' as well as the counties through which a road running directly between two points would pass;' also, the location and course of rivers," whether or not. they are navigable," and their prominent features, such as the falls of the Ohio river," also of the distances between places, the facilities for travel, and the time necessary to go from one to another." The courts also take judicial notice that building a double ' Cincinnati, etc., E.Oo.v. Grames, E. Co. v. Lyon, 48 Ind. 119; Louis- 8 Ind. App. 112. ville, etc., R. Co. v. Hixon, 101 Ind. 2 Cluggish V. Koons, 15 Ind. App. 337. 599, 609, citing Denney v. State, 144 'Terre Haute, etc., R. Co. v. Pierce, Ind. 503. 95 Ind. 496; Wasson v. First Nat'l » Symmes v. Major, 21 Ind. 443. Bank, 107 Ind. 206, 220. *La Plante v. Lee, 83 Ind. 155; 'Steinmetz v. Versailles, etc., Co., Grusenmeyer v. City of Logansport, 57 Ind. 457. 76 Ind. 549-552. But see Mode v. " Board of Commissioners v.Castet- Beasley, 143 Ind. 306, 325. ter, 7 Ind. App. 309. 5 Rout V. Ninde, 111 Ind. 597. " Ross v. Faust, 54 Ind.471 ; Neader- ^Turbeville v. State, 42 Ind. 490; houser v. State, 28 Ind. 257; Board of Indianapolis, etc., R. Co. v. Lyon, 48 Commissioners v. Pidge, 5 Ind. 13; Ind. 119; Indianapolis, etc., R. Co. v. Depew v. Board, etc., 5 Ind. 8. Stephens, 28 Ind. 429; Indianapolis, "Cash v. Auditor, 7 Ind. 227. etc., R. Co. V. Case, 15 Ind. 42 ; Louis- " Wasson v. First Nat'l Bank, 107, ville, etc., R. Co. v. McAfee, 15 Ind. 206, 220; Fitzpatrick v. Papa, 89 Ind. App. 442. 17; Ward v. Colyhan, 30 Ind. 395; 'Louisville, etc., R. Co. v. MfcAfee, Hipes v. Cochran, 13 Ind. 175; Hen- 15 Ind. App. 442; Indianapolis, etc., thorn v. Doe, 1 Blackf. 157. ^ 123 THE TRANSCRIPT. 187 track railroad in a narrow alley will obstruct it,' and that a railroad right of way is frequently used for other purposes than operating trains thereon/ They take judicial notice of the national surveys and of what congressional townships and sections lie within certain counties/ and whether or not the sections or parts thereof are fractional.' The courts will also take judicial notice of the legal duty of a common carrier aris- ing out of its contract with a passenger or shipper/ and what is a reasonable time for a train to stop to discharge and take on passengers.* They also take notice of the days of the week, and vv^hether a given day was Sunday,' of the seasons of the year and the general course of agriculture,' and that the use of a farm in summer is worth more than in winter.' A court will take judicial notice of the names of its own officers and the genuineness of their signatures," and it will be presumed on appeal that the court ruled correctly as to whether papers therein were signed by the proper officers. But when a sig- nature purports to have been written, the appellate court can not take judicial notice that it was made by a mechanical de- vice." Courts also judicially know what abbreviations are us- ually employed in describing real estate,'^ and stating time," and the usual method of computing time." The courts also 'Haus V. Jeffersonville, etc., E. 'Roberts v. Farmers', etc., Bank, €o., 138 Ind. 307. 136 Ind. 154; Swales v. Grubbs, 126 * Pittsburgh R. Co. v. Hays, 17 Ind. Ind. 106; Chrisman v. Tuttle, 59 Ind. App. 261. 155. 'Richardson v. Hedges, 150 Ind. *Abel v. Alexander, 45 Ind. 523; 53; Tewksbury v. Howard, 138 Ind. Absbire v. Mather, 27 Ind. 381. 103; Bryan v. Scholl, 109 Ind. 367; ^Ross v. Boswell, 60 Ind. 235. Stockwell V. State, 101 Ind. 1 ; Brown "Deitz v. State, 123 Ind. 85; Beller V. Anderson, 90 Ind. 93; Keepfer v. v. State, 90 Ind. 448; Choeu v. State, Force, 86 Ind. 81; Brown v. Ogg, 85 85 Ind. 209; Mountjoy v. State, 78 Ind. 234; Wilcox v. Moudy, 82 Ind. Ind. 172; Hipes v. State, 73 Ind. 39. 219 ; Dutch v. Boyd, 81 Ind. 146 ; Moss- " Rosenstein v. State, 9 Ind. App. man v. Forrest, 27 Ind. 233. 290. 'Peek V. Sims, 120 Ind. 345; State "Frazerv. State, etc., 106Ind.471; V. Gramelspacher, 126 Ind. 398. Jordan, etc., Assn. v. Wagoner, 33 ^Evansville, etc., R. Co. v. Duncan, Ind. 50. 28 Ind. 441. "Hedderich v. State, 101 Ind. 564. * Louisville, etc., R. Co. v. Oostello, " Hedderich v. State, 101 Ind. 564. « Ind. App. 462. 188 APPELLATE PRACTICE. § 123 take judicial notice of the general history of the country and state/ and of the Wabash and Erie canal, and legislation re- lating thereto/ and of the time when a president of the United States, or governor of the state, was inducted into his office.' Also of the census or enumeration of the inhabitants of the state, taken by authority of the state or of the United States,' and of the number of inhabitants in the different counties" and cities^ throughout the state, and the number of votes cast therein at a general election.' They also take notice of the fact that a political party pre- sented to the electors to be voted at a certain election, a ticket containing the names of certain persons,' and of the time when an election was held.' Also, what coins are current in the country,'" and that certain classes of notes and bills other than bank bills circulate as money ; " also of the manner in which the business of banking is conducted '^ and of the pow- ers and duties of bank cashiers." Courts judicially know that the value placed on real estate for purposes of taxation is not fixed by the owner of the land ; " that plat books are kept by the county recorders of the different counties ; '' and that a successful dentist must have acquired a high degree of skill.'* They also know whether or not a state of war or insurrection existed at a given time." The courts also take judicial notice of the properties of elec- tricity, '° and of its superiority as a means of furnishing light, but not of the several methods of generating, transmitting, or 1 Mode V. Beasley, 143 Ind. 306. " Daily v. State, 10 Ind. 536. ^ Board of Commissioners v. Ft. " Hart v. State, 55 Ind. 599. Wayne, etc., Co., 17 Ind. App. 36. " State v. Arnold, 140 Ind. 628. 3 Hizer v. State, 12 Ind. 330. " Wasson v. First National Bank, « City of Huntington v. Cast, 149 107 Ind. 206, 220. Ind. 255; Denney v. State, 144 Ind. "Chicago, etc., E. Co.v. Smith, 6 503. Ind. App. 262. 'Denney v. State, 144 Ind. 503. '= Miller v. City of Indianapolis, 123 6 City of Huntington v. Cast, 149 Ind. 196. Ind. 255 ; Stultz v. State, 65 Ind. 492, '« Wilkins v. State, 113 Ind. 514. 498 ; Kalbrier v. Leonard, 34 Ind. 497. " Perkins v. Eogers, 35 Ind. 124. 'State V. Swift, 69 Ind. 505, 509. " City of Crawfordsville v. Braden, 8 State V. Downs, 148 Ind. 324. 130 Ind. 149. 'Urmston v. State, 73 Ind. 175. § 123 THE TRANSCRIPT. 189 using it.' Also that natural gas, artificial gas, gunpowder, dynamite and articles of a like character are highly explosive and intrinsically dangerous,^ but that natural gas will not ex- plode by spontaneous combustion nor without some outside agency.' They will also take notice that a ditch with straight banks will not fully answer the purpose of a ditch which the contract required should have sloping banks.' The courts also judicially know that whisky,' blackberry brandy ° and beer' are intoxicating, and that ale is a malt liquor,' and do n,ot know that wine is not intoxicating.' In short, the courts take judicial notice of all matters of common, general knowledge, and it is not necessary that the record should con- tain any statement as to such matters, either by way of plead- ing or proof." ' City of Crawfordsville v. Braden, « Fenton v. State, 100 Ind. 598. 130 Ind. 149. ' Myers v. State, 93 Ind. 251 ; Dant ^Jamieson v. Ind. Nat. Gas, etc., v. State, 106 Ind. 79; Pancake v. Co., 128 Ind. 555; Alexandria, etc., State, 81 Ind. 93. Co. V. Irish, 16 Ind. App. 534. « Wiles v. State, 33 Ind. 206. 'McGahan v. Indianapolis, etc., 'Jackson v. State, 19 Ind. 312. Co., 140 Ind. 835. " R. S. 1894, § 377. See Woollen's *Eacer V. Wingate, 138 Ind. 114. Trial Procedure, §§ 2893 to 2991, for ' State V. Jones, 3 Ind. App. 121 ; an exhaustive treatment of this Carmon v. State, 18 Ind. 450; Eagan subject. V. State, 53 Ind. 162. CHAPTER 11. ASSIGNMENT OF ERRORS. § 124. Assignment of errors is appel- lant's pleading. 125. Assignment must be written on the transcript. 126. Assignment must contain full names of all parties. 127. Each specification must be complete in itself. 128. Specifications must relate only to matters of law. 129. Form of an assignment of er- rors. 130. Should be written on transcript before it is filed. 131. Must be signed by appellant or his attorney. 132. When and how assignment may be amended. § 133. What may be assigned as er- ror. 134. Assignment must relate to final ruling. 135. What may be embraced by a single assignment. 136. What may be first objected to by an assignment of errors. 137. Assignment must be supported by the record and can not contradict it. 138. Joint assignment must be good as to all who join in it. 139. When and how cross-errors may be assigned. 140. What may be reached by an assignment of cross-errors. 141. Necessity of an assignment of errors in criminal cases. § 124. Assignment of errors is appellant's pleading. — No pleadings are required in the supreme court upon an appeal, except a specific assignment of all errors relied on, to be en- tered on the transcript in matters of law only.' This assign- ment of errors constitutes the complaint of the appellant in the supreme court, in the absence of which an appeal will be dismissed.^ It is the assignment of errors that confers juris- diction on the appellate tribunal,' and it must therefore be filed within the time allowed for perfecting an appeal,* and iR. S. 1894, §667. * Hawkins v. McDougal, 126 Ind. 544; Lawrence V. Wood,. 122 Ind. 452; Bacon v. Withrow, 110 Ind. 94 ; Boyd V. Pfeifer, 95 Ind. 599; Williams v. Riley, 88 Ind. 290 ; Trammel v. Chip- man, 74 Ind. 474. 'Debs V. Dalton, 7 Ind. App. 84. * Lawrence v. Woods, 122 Ind. 452; Coburn v. Whittaker, etc., Co., 12 (190) § 125 ASSIGNMENT OF ERRORS. 191 ought to be filed at the same time as the transcript.' Since the assignment of errors is the appellant's pleading, it is gov- erned by the same rule as to amendments/ and signing by the party or his attorney/ as other pleadings. And since an ac- tion can not be prosecuted without a complaint, an assignment of errors is necessary in an appeal of a criminal case as well as in civil cases.' The provision of the statute, f that the ap- pellee shall file his answer thereto has no reference to present- ing an issue of fact as to the truthfulness of statements in the record,' and it is not necessary to demur to an assignment of errors in order to present the question of its sufficiency.' But any matters which will bar the appellant's right to appeal, or show that his appeal ought to abate; may be set up by way of answer to his assignment of errors;' as, that the appellant has accepted payment of the judgment, or has done some other act which destroyed his right to appeal.' The rule that a joint pleading must be good as to all persons who join therein.applies to assignments of error,'" and a ruling which is not available as to all of the appellants can not successfully be made the basis of a joint assignment by all of them." Parties who have separate interests must assign errors separately.'^ § 125. Assignment must be written on the transcript. — The assignment of errors must be written on the transcript," or on some paper attached thereto, so as to form a part of the tran- script.'* This requirement is rigidly enforced, and where the assignment of errors is made on a detached paper,'^ or is made Ind. App. 340; Board v. Vurpillat, 14 'Glassburn v. Deer, 143 Ind. 174; Ind. App. 311 ; Doble v. Brown, 20 Newman v. Kiser, 128 Ind. 258. Ind. App. 12. 9 Section 8, ante. ' Section 130, post. " Section 138, post. * Section 132, post. " Earhart v. Farmers' Creamery,148 'Section 131, posi. Ind. 79. ' Section 141 , post. " Section 138, post. = R. S. 1894, § 667. is R. s. 1894, § 677. « Section 128, post; Eckert v. Bink- " Eule 4 Sup. Ct. ; Moore v. Ham- ley, 134 Ind. 614. mons, 119 Ind. 510. 'Nading v. Elliott, 137 Ind. 261. " Wiggs v. Koontz, 43 Ind. 430. 192 , APPELLATE PRACTICE. § 126 on some other paper filed in the cause,' the appeal will be dis- missed. This rule also applies to cross-errors, and they must be written on the transcript or the court will not consider them.* § 126. Assignment must contain full names of all parties. — The assignment of errors must contain the full names of all the parties,' and, unless it does, the appeal will be dismissed.* This rule applies to appeals in criminal cases* as well as in civil cases. The names of the appellants should be written first in the title to the assignment of errors, followed by the abbreviation "v." arid then by the names of the appellees. ° But where one or more names are omitted from the title of the assignment of errors, the defect can be cured by setting them forth in the body of the assignpaent.' Where several parties appealing from a judgment have separate interests that are to some extent adverse, they should all be named as appel- lants in the assignment of errors by each one, and it is not proper for each person assigning errors to name all the other parties to the appeal as appellees.' In fact after the assign- ment of errors has once been properly entitled with the names of all the parties, it is not necessary to repeat the title, but several appellants may make separate assignments of error, under a single caption or title.' This rule has no application to an assignment of cross-errors, and such an assignment need only contain the title bywhich the case is usually designated." ' Hays-v. Johns, 42 Ind. 505. vert v. State, 91 Ind. 473 ; Thoma v. 2 Datton V. Button, 30 Ind. 452. State, 86 Ind. 182. ' Eule 6 Sup. Ct. ^Barnett v. Bromley, etc., Co., 149 « MeOlure v. Shelburn Coal Co., 147 Ind. 606; Wickham v. Hess, 38 Ind. Ind. 119; Big Four, etc., Assn. v. 01- 183. cott, 146 Ind. 176; Hutts v. Martin, 'Ferguson v. Despo, 8 Ind. App. 141 Ind. 701 ; Rosenbower v. Schuetz, 523. 141 Ind. 44; State v. Hodgin, 139 Ind. » Layman v. Hughes, 152 Ind. 484. 498 ; Gourley v. Embree, 137 Ind. 82 ; ^Breyfogle v. Stotsenburg, 148 Ind. Bairnett v. Bromley, etc., Co., 149 Ind. 552. 606; City of South Bend v. Thomp- "Nichol v. Henry, 89 Ind. 54; State son, 19 Ind. App. 19; Loucheim v. v. First "Nat'l Bank, 89 Ind. 302; Seeley, 151 Ind. 665. But see Lay- Busenbark v. Clements, — Ind.App. man v. Hughes, 152 Ind., 484. — , 53 N. E. Rep. 665. 5 State V. Hodgin, 139 Ind. 498; Cal- § 127 ASSIGNMENT OF ERRORS. 193 Nor does the rule apply to a term appeal by part of the judg- ment defendants/ nor to an appeal under the decedent's act/ so as to require co-parties not joining in the appeal to be named as co-appellants. A failure to comply with this rule has been overlooked in some cases where an appeal was taken by a party in a representative capacity from a judgment in his own favor, and there was no doubt that all the parties were before the court.' § 127. Each specification must be complete in itself. — Each specification of error must be' complete in itself and all must be properly numbered.' Each specification standing alone must be sufficient to require the court on appeal to review some ac- tion of the lower court/ and a number of defective assignments can not be combined to constitute one good one.° The errors complained of must be indicated with clearness and precision.' If an assignment is so uncertain and indefinite as to leave it a matter of doubt what ruling or decision the assignment refers to, it will not be considered." Thus, where it was as- signed as error that the court erred in sustaining the demurrer to the answer, and the record showed several demurrers to have been sustained to different answers,' and where overruling the motion for a new trial was assigned as error and the record showed that several motions for a new trial filed by different parties were overruled," the assignments of error were held fatally defective. Also, specifications that the court erred in 'Bums' Supp. 1897, §647(1; Smith V. May v. State, 140 Ind. 88; Dye v. Wells Mfg. Co., 144 Ind. 266 ; Lowe v. State, 130 Ind. 87 ; Baldwin v. Sutton, Turpie, 147 Ind. 652 ; Anderson Glass 148 Ind. 591; Hussey v. Whiting, 145 Co. V. Brakeman, 20 Ind. App. 226. Ind. 580; Chicago, etc., E. Co. v. St. ' Acts 1899, p. 397, amending § 2610, Clair, 144 Ind. 371 ; Fifth Ave., etc., R.S. 1894. Bank v. Cooper, 19 Ind. App. 13; 'McConahey's Estate v. Foster, 21 Bees v.Blackwell, 6 Ind. App. 506. Ind. App. 416, and cases cited. ' May v. State, 140 Ind. 88 ; Painter, , *Rule4SQp. Ct. etc., Co. v. Metz Co., 7 Ind. App. ? Louisville, etc., R. Co. v. Norman, 652. 17 Ind. App. 355. s goUn y Simmons, 81 Ind. 92. * Trammel v. Chipman, 74 Ind. 474. "Painter, etc., Co. v. Metz Co., 7 'Singer v.Tormoehlen, 150 Ind. 287; Ind. App. 652. 13— App. Pkacticb. 194 APPELLATE PRACTICE. § 127 finding for the appellees,' and that the court erred in its con- clusions of law on the facts found by the jury, when the jury had returned a special verdict," that the court erred in render- ing judgment for the appellees,' and that the court erred in finding for appellee and rendering judgment and decree in his favor,' have been held to be so general as to present no ques- tion. The general assignment that there are other manifest and manifold errors in the record and proceedings in the cause' was also disregarded. Where separate breaches of a bond were charged in a complaint thereon, and demurrers were filed to each separately, it was held that the assignment of errors must specify which demurrer it charged to have been arroneously overruled, and that a general assignment that the court erred in overruling the demurrer to the complaint was insufficient.' Where separate demurrers were overruled to different para- graphs of a pleading the rulings can not be questioned by an assignment that the court erred in overruling appellant's gen- eral demurrer to the entire pleading,' and where a joint de- murrer to several paragraphs of a pleading was overruled, specifications that the court erred in overruling demurrers to each of those paragraphs will not raise any question." An as- signment that the court erred in overruling appellant's answer in abatement presents no question as to the ruling on a de- murrer to such an answer.' And where the trial court has erroneously carried back the demurrer to a reply, and sus- tained it to the answer to which the reply was directed, its ruling can not be presented for review on appeal by an assign- ment of error that the trial court erred in overruling the de- murrer to the reply." •McNaught V. McAllister, 93 Ind. 'Popijoy v. Miller, 133 Ind. 19. 114; Smith v. Ryan, 83 Ind. 152. * Colles v. Lake Cities, etc., E. Co., 2 Austin V. Earliart, 88 Ind. 182. — Ind. App. — , 53-N. E. Eep. 556. 'Reisler v. Smith, 150 Ind. 88. ^Rohbinsv. Masteller, 147Ind.l22; * Kimberlin v. Tow, 133 Ind. 696. Dye v. State, 130 Ind. 87. = Rees V. Blackwell, 6 Ind. App. "Baldwin v. Sutton, 148 Ind. 591; 506. Queen Ins., etc., Co. v. Hudnut Co., 8 6 Line v. State, 181 Ind. 468. Ind. App. 22. § 128 ASSIGNMENT OF ERRORS. 195 The particular ruling complained of must be designated in correct terms, and so clearly that it may be known exactly what ruling is assailed. But where there is a single ruling of a certain kind, as where only one complaint, or one answer was filed, and a single demurrer was filed thereto, an assign- ment of error that the court erred in overruling or sustaining the demurrer to such pleading may be sufficient. And it has been held that a specification that the circuit court erred in overruling appellant's demurrer to the complaint was suffi- cient, although the appeal was taken from another court than the one which made such ruling, the case having been trans- ferred to it by change of venue; as there had been but a single demurrer filed to the complaint, this designation was held to be sufficiently specific' But where a cause has 'been trans- ferred from one court to another by a change of venue, and each court has made rulings of the same kind, the assignment of errors must specify by which court the alleged erroneous rulings were made,^ and if it states that they were made by the wrong court, no question will be presented for consideration.' It is possible, however, to make an assignment of error too specific. Thus, if the assignment charges that the court erred in not granting a new trial for a specified reason, the supreme court will not consider the question whether a new trial ought to have been granted for some other reason.* And if any other qualifying words are used in the assignment of errors, the court will decline to consider the correctness of any rul- ings not embrace4 by the assignment of errors as it was writ- ten. ° Each specification in the assignment of errors should be so definite as to point out the particular ruling complained of, but not so definite but that any error in making such ruling can be taken advantage of. § 128. Specifications must relate only to matters of law. — The statute provides for an assignment of errors in matters of ' Town of Williamsport v. Smith, 2 « Board of Commissioners v. Byrne, Ind. App. 360. 67 Ind. 21. ^ McKeen V. Porter, 134 Ind. 483. ^Popijoy v. Miller, 133 Ind. 19; 'Evansville, etc., R. Co. v. Laven- Evansville, etc., R. Co. v. Lavender, der, 7 Ind. App. 655. 7 Ind. App. 655. 196 APPELLATE PRACTICE. § 128 law only;^ and thougti it also provides that the appellee shall file his answer thereto, this provision did not contemplate that an issue of fact shall be formed on which the" supreme court shall hear evidence.^ Cases too numerous for citation ' declare that in deciding an appeal the supreme court will not weigh the evidence to determine what are the facts, but will accept as true the facts shown to have been admitted by the pleadings or found by the court or jury trying the cause, and and will only determine whether the law was correctly applied to such facts. And even though the court will consider the evidence and decide as to the sufficiency in law of the facts which it establishes to sustain the verdict or finding, or to justify the giving of an instruction, it will not undertake to decide as to the existence of a fact which is both affirmed and denied by conflicting evidence, but as to all such facts will accept as correct the finding of the court or jury. It is true there is a section of the statute ' which expressly author- izes the appellant to assign errors upon matters of fact and law in appeals from will contests, but the provision for assign- ing errors on matters of fact has been impliedly repealed.' An issue of fact may, however, be presented as to whether appellant has waived his right to prosecute an appeal by ac- cepting payment of the judgment or otherwise.' But even then, the court will not dismiss the appeal unless the truth of the matter, set up in the answers, is very clearly established. Where such an answer is filed, and notice to the appellant is given, and he fails to deny any of the facts set forth in the an- swer, the suprieme or appellate court will presume that such facts are true, and if they are sufficient to bar the appeaP it will be dismissed. Since the assignment of errors relates to matters of law only, it is not necessary to question its sufficiency by a demurrer,' but it will be enough merely to point out the par- ticulars in which the assignment is insufficient.' 1 jj g 2394 § 667. ' Chapter 9, ante; Newman v. Kiser, 'Eckert v. Binkley, 134 Ind. 614. 128 Ind. 258. 'R. S. 1894 §2775. ^Glassburn v. Deer, 143 Ind. 174. 'Ooffman v. Reeves, 62 Ind. 334, 'Nading v. Elliott, 137 Ind. 261. 345 8 Nading v. Elliott, 137 Ind. 261 ; El- § 129 ASSIGNMENT OF ERRORS. 197 § 129. Form of an assignment of errors. — The following is a proper assignment of the errors to which exceptions were re- served by the defendant in the case of which a transcript of the record is given in a preceding chapter.' ::} state of indiana, in the supreme (or appellate) court. James Robinson, Appellant, ' V. George Williams, Appellee. The appellant says there is manifest error in the judgment and proceedings in this cause in this : 1. The court erred in overruling appellant's demurrer to appellee's com- plaint. 2. The court erred in overruling appellant's demurrer to the first paragraph of appellee's reply. 3. The court erred in striking out the third paragraph of appellant's an- swer. 4. The court erred in overruling appellant's demurrer to the amended sec- ond paragraph of appellee's reply. 5. The court erred in overruling appellant's motion for judgment on the answers to interrogatories. 6. The court erred in overruling appellant's motion for a venire de novo. 1. The court erred in overruling appellant's motion for a new trial. 8. The court erred in overruling appellant's motion in arrest of judgment. 9. The court erred in overruling appellant's motion to modify the judg- ment. George Robinson, William Bkown, Attorneys for Appellant. If only one of two or more appellants assigns errors separ- ately, it should be stated by which particular appellant the assignment is made. If there are more than one plaintiff, or more than one defendant, the names of all the parties must be given in full.^ If there are several appellants, and some of the errors reserved by one of them are not available on behalf of the others, that one should assign errors separately.' All rulings relating to the giving or refusal of instructions, or the admission and exclusion of evidence, and other rulings made in the progress of the trial should be assigned as rea- sons for a new trial in a proper motion, and they will all be liott's App. Proc, §§ 401, 402 ; section ' Section 126, ante. 200, -post. 3 Section 138, -post. ' Section 116, ante. 198 APPELLATE PRACTICE. § 130 presented for review on appeal by the single specification that the court erred in overruling the motion for a new trial. An independent assignment of error questioning such rulings will receive no consideration.' § 130. Should be written on transcript before it is filed. — Since the assignment of errors is the appellant's pleading, the filing of which confers jurisdiction on the appellate tribunal/ it logically follows that an assignment of errors should pre- cede any other step in the appeal after the transcript is filed.' The statute requires that errors shall be assigned on or before the first day of the term at which the cause stands for trial/ and, as the statute' provides that civil appeals shall be submitted within thirty days after the transcript is filed and notice given, and both the statute and rules of court provide that criminal appeals" shall be submitted immediately upon filing the transcript and notice, it necessarily follows that an assignment of errors ought to accompany the transcript, since it is impossible to submit any- thing for consideration until the errors are assigned. The rules of court also make the assignment of errors the precipe for notice, when notice is issued by the clerk of the supreme court, ' and for that reason it ought to be filed with the tran- script. But where proper steps are taken to supply the omis- sion before the appeal has actually been dismissed, a party will sometimes be permitted to assign errors, or to correct a defective assignment of errors,' after his transcript has been filed, provided it is done before the expiration of the time al- lowed for taking an appeal;' under no circumstances can er- rors be assigned after the expiration of that time, but a fail- ' ' Section 133, post. Halliday, 10 Ind. 24. See Price v. 'Section 124, ante. Baker, 41 Ind. 570. » Henderson v. Halliday, 10 Ind. 24. 'Section 132, post. «R. S. 1894, § 667. 'Brown 'v. Trexler, 132 Ind. 106; ^ E. S. 1894, § 664. . Lawrence v. Wood, 122 Ind. 452 ; Ba- « E. S. 1894, § 1962 ; Eule 19 Sup. Ct. con v. Withrow, 110 Ind. 94 ; State v. ' Eule 6 Sup. Ct. ; Henderson v. Eoss, 4 Ind. App. 480. § 131 ASSIGNMENT OF EEKOES. 199 ure to assign errors before filing the transcript is very bad practice, and may prove fatal to an appeal.' § 131. Must be signed by appellant or his attorney. — Since- the assignment of errors is appellant's pleading/ it comes within the rule laid down by the statute" that every pleading in a court of record must be subscribed by the party or his at- torney.' It is accordingly held that unless the assignment of errors is signed by the appellant or his attorney the appeal must be dismissed.' It has been said that where the assign- ment of errors is signed by appellants' attorneys, they must sign it as such attorneys, and merely subscribing their firm name to the assignment of errors is not enough.* But where the attorneys who had represented appellants in the court below subscribed their firm names to the assignment of errors, followed by the words "for appellants," it was held a suffi- cient signing.' § 132. When and how assignment may be amended. — The same rule which permits a complaint to be amended, as a mat- ter of course, so long as nothing has been done in the case, is applied to the assignment of errors on appeal, which may be amended at any time before the cause is submitted. But the rules of court' provide that amendments of the assign- ment of errors shall not be made after the cause is submitted, except upon notice and leave applied for in writing, nor shall leave be granted unless it appear that due care and diligence were exercised in the first instance to make the assignment complete. This rule has the effect to forbid the amendment of assignments of error after submission in most cases, because the exercise of due care and diligence would usually enable a 'Baldwin v. Sutton, 148 Ind. 591; « State v. Delano, 34 Ind. 52. Lee V. Mozingo, 143 Ind. 667. ' Levi v. Bray, 12 Ind. App. 9. ' R. S. 1894, § 667 ; section 124, ante. ' Lake Erie, etc., E. Co, v. Town of "•R.S. 1894, §361. Boswell, 137 Ind. 336; Lake Erie, 'Riley V. Murray, 8 Ind. 354. etc., B. Co. v. Juday, 19 Ind. App. 'Thoma v. State, 86 Ind. 182; Bs- 436. tate of Peden v. Noland, 45 Ind. 354; " Rule 4 Sup. Ct. State V. Delano, 34 Ind. 52. 200 ' APPELLATE PRACTICE. § 133 party to make his assignment correct in the first instance. The mere fact that the appellant was in doubt as to the correct manner of assigning errors, at the time he filed his transcript, is not a sufficient reason for granting leave to amend the assign- ment,' nor is oversight and inadvertence in omitting the names of parties.' And no matter how good an excuse the appellant may present for not having made an earlier applica- tion for leave to amend his assignment of errors, such leave will be denied, when he fails to show any excuse for not mak- ing the assignment correct in the first instance.' Since errors can not be assigned after the expiration of the time allowed for taking an appeal,* the court will not permit the amendment of an assignment of errors as to a material matter after the expiration of the time allowed for taking an appeal.' Leave to amend must be applied for by a motion in writing ° supported by affidavit,' after ten days notice' in writ- ing has been given to the adverse party.' A copy of the pro- posed motion for leave to amend should accompany the notice, in which the amendments to the assignment of errors that it is proposed to make should be stated." § 138. What may be assigned as error. — It may be stated as a general rule that all erroneous rulings made in the prog- ress of a cause which can not be questioned by a motion for a new trial may be separately assigned ds error" by, the party whose rights were prejudiced thereby. A party can not assign as error that which operated in his own favor," or which did him no harm," but only that which prejudiced his substantial rights." It follows that where the party assigning error is shown to have no interest in the appeal by reason of no judg- ment having been rendered for or against him, the court will ' Lee V. Mozingo, 143 Ind. 667. ' Rule 15 Sup. Ct. 2 Loucheim v. Seeley, 151 Ind. 665. '"Eule 15 Sup. Ct. » Baldwin v. Sutton, 148 Ind. 591. " Sturm v. State, 74 Ind. 278 ; Shoe- , * Section 130, ante. maker v. Smith, 74 Ind. 71. 'Doble V. Brown, 20 Ind. App. 12. " Section 256, post. 6 Rule 13 Sup. Ct. " Section 257, post. ' Rule 12 Sup. Ct. " Section 254, post. 8 Rule 7 Sup. Ct. § 133 ASSIGNMENT OF ERRORS. 201 dismiss the appeal of its own motion.' Thus, where judgment was rendered against a justice of the peace commanding him to do a certain act in his official capacity, an assignment of errors by him as an individual will present no question.^ The appeal must be tried solely by the record,' and the assignment of errors must therefore be founded on facts shown by the record, and can not contradict the record.* Among the many things which may be assigned as error, provided, of course, proper exceptions have been reserved in the court below,^ are rulings on demurrers to pleadings,* and on motions to strike out pleadings,' and other rulings made in forming the issues to be tried,' and all rulings made after the verdict is returned or the finding announced,' such as the , ruling on a motion to modify the judgment," or a motion in arrest of judgment," the statement of conclusions of law on the facts found,'* and the ruling on a motion for a venire de noiJO." Also the ruling on a motion for a new trial, by which may be brought in review all rulings made in the course of the trial which are properly questioned by the motion." It is also held that the ruling on a motion to quash a writ of replevin may be assigned as error," since such a ruling can not be as- signed as a reason for a new trial. There are also some mat- ters which may be assigned as error, although they were not presented to the trial court for its decision. These are, that the complaint does not state facts sufficient to constitute a cause of action, and that the trial court had no jurisdiction to pronounce the judgment appealed from." ' City of South Bend v. Thompson, ^ Section 39, ante. 19 Ind. App. 19. '" Patterson v. Scottish, etc., Co., 107 "Section 144, post; Placard v. State, Ind. 497. 148 Ind. 305. " Chandler v. State, 141 Ind. 106. ' Section 122, araie. "Nading v. Elliott, 137 Ind. 261; * Section 137, post. Starkey v. Starkey, 136 Ind. 349 ; ° Section 7, ante; section 24, ante. North British, etc., Co. v. Koontz, 17 'Patterson v. Scottish, etc., Co., 107 Ind. App. 625. Ind. 497. 13 Heiney v. Garretson, 1 Ind. App.. 'Huggins V. Hughes, 11 Ind. App. 548. 465; Cleveland, etc., Co. v. Monroe, "Section 40, ante, etc., Co., 1 1 Ind. App. 423. '^ ^^fe v. Leiter, 103 Ind. 138. 'Section 39, ante. i6 Section 38, ante. 202 APPELLATE PRACTICE. § 134 § 134. Assignment must relate to final ruling. — It is only rulings of a final ctiaracter tliat can properly be assigned as error on appeal. Any ruling which the trial court retains authority to correct must be presented to that court for/review in a proper manner before the appeal is taken, or it will not be reviewed on appeal. Therefore, erroneous rulings which are causes for a new trial can not be assigned as error.' To this class belong rulings on' motions to suppress depositions,^ rulings in the admission or exclusion of evidence,' and the giving or refusal of instructions.* Even an instruction direct- ing the jury what verdict they shall return can not be assigned as error, but must be questioned by a motion for a new trial.' The refusal to grant a change of venue,^ the refusal to grant a trial by jury,' and the refusal to grant a continuance must also be questioned by a motion for a new trial.* Neither can the fact that the verdict is contrary to the law and evidence,' or that the finding is not sustained by the evidence," properly be assigned as error on appeal . Nor can any rulings on motions by which it was attempted to make the special findings" or the verdict of the jury" conform to the appellant's ideas of what they should be. And Where the facts were not specially found 'Section 40, ante; Zimmerman v. Louisville, etc., R. Co. v. Hart, 119 Gaumer, 152 Ind. 552, 554; Singer v. Ind. 273; Western U. Tel. Co. v. Kil- Tormoehlen, 150 Ind. 287; Pfau v. patrick, 97 Ind. 42. State, 148 Ind. 539; Shea v. City of =Bane v. Keefer, 152 Ind. 544. Muncie, 148 Ind. 14 ; Forsyth V. Wil- «Sidenerv. Davis, 87 Ind. 342; cox, 143 Ind. 144; Aurelius v. Lake Bane v. Ward, 77 Ind. 153. Erie, etc., R. Co., 19 Ind. App. 584; 'Zimmerman v. Gaumer, 152 Ind. Baecher v. State, 19 Ind. App 100; 552, 554; Childersv. First National Sunnyside, etc., Co. v. Reitz, 14 Ind. Bank, 147 Ind. 430, 436. App. 478. ' Hutts V. Shoaf, 88 Ind. 395 ; Ostler ' Zimmerman v. Gaumer, 152 Ind. v. State, 3 Ind. App. 122. 552, 554; Maybin v. Webster, 8 Ind. ^ Pennsylvania Co. v. Gallentine, 77 , App. 547; Daunhauer v. Hilton, 82 Ind. 322. Ind. 531. "Robbins v. Magee, 96 Ind. 174; 3 Edwards v. Powell, 74 Ind. 294; Kissell v. Anderson, 73 Ind. 485. La FoUette V. Higgins, 109 Ind. 241; "Richardson v. Seybold, 76 Ind. 58. Hays V. Walker, 90 Ind. 105; Singer "Louisville, etc., R. Co. v.Hart,119 v. Tormoehlen, 150 Ind. 287; Shea v. Ind. 273; Louisville, etc., R. Co. v. City of Muncie, 148 Ind. 14. Green, 120 Ind. 367 ; Knight v. Knight, 'Forsyth v. Wilcox, 143 Ind. 144; 6 Ind. App. 268. § 135 ASSIGNMENT OF ERRORS. 203 by the court, but the parties made an agreed statement of the facts which was used as the evidence in the cause, an assign- ment of error that the court erred in its conclusions of law on the agreed statement of facts was held to present no question.' As these matters severally constitute reasons for, a new trial, they can not be considered final rulings, but must first be pre- sented for review by a motion for a new trial, and the ruling of the court on that motion must be assigned as error on ap- peal. It has been held, however, that when it was impossible under the circumstances to present by a motion for a new trial a ruling which would ordinarily constitute a cause for a new trial, such ruling may be assigned as error on appeal.^ It was accordingly held that a refusal to grant a change of venue from the judge to whom an application for the appointment of a receiver in vacation was presented might be assigned as error in ^.n appeal from an order appointing the receiver, since a motion for a new trial could not properly be presented in a case where there had been no trial.' But there are very few rulings that are made in an ordinary case between th^ time the issues are made up and the time the verdict is returned and recorded, that can not be presented under some one of the statutory reasons for a new trial, and if they can, they must be so presented. § 135< What may be embraced by a single assignment. — The assignment of errors may contain as many specifications as there were errors committed by the trial court. There is no limit to the number of specifications allowed, provided each is complete in itself and all are properly numbered,' and each specification points out'with certainty the particular error to which it is addressed.^ If a single specification questions two or more rulings jointly,' as where the rulings on several de- 'Witz V. Dale, 129 Ind. 120; Eob- 'Rule 4 Sup. a. ertson v. Huffman, 101 Ind. 474 ; Zel- = May v. State;'140 Ind. 88; section ler V. City of Orawfordsville, 90 Ind. 127, ante. 262; Cory v. Cory, 86 Ind. 567; Sless- « Saunders v. Montgomery, 143 Ind. man v. Crozier, 80 Ind. 487. 185; Moore v. Morris, 142 Ind. 354; " Shoemaker v. Smith, 74 Ind. 71. Florer v. State, 133 Ind. 453. ' Shoemaker v. Smith, 74 Ind. 71. 204 APPELLATE PRACTICE. § 136 murrers addressed to different paragraphs of a pleading' were charged to be erroneous, the assignment must fail if any one of the rulings is correct ;' and on the same principle, an assign- ment that the court erred in overruling a demurrer to several paragraphs of a pleading must fail if any paragraph is correct.' If the refusal of the court to quash the service of a writ and the return thereon is assigned ^s error, it must fail if either the writ or the service is valid.* But where one specification of error questions several rulings "and each of them," the su- preme court will consider them separately in the same manner as if each had been attacked by a separate specification of error.' Where a specification of error purports to question a single ruling, but appliesi equally to two or more rulings of the trial court, the supreme court may refuse to consider any of them on the ground that the assignment is not sufficiently specific* § 136. What may be first objected to by an assignment of errors. — While it is a general rule that all questions must be presented to the trial court in some appropriate manner, and exceptions saved to its ruling thereon, or they will not be considered on appeal,' this rule is not of universal applica- tion. The sufficiency of a paragraph of pleading must be tested by a demurrer, the rulings of the court at the trial must be presented for review by a motion for a new trial, the sufii- ciency of the verdict must be tested by a motion for a venire de 7V0V0, and the judgment must be attacked by a motion to set it aside or to modify it, before the errors which might be reached in that manner will be considered by an appellate tri- bunal; and the assignment of errors must refer, not to the ' Board, etc., v. Trotter, 19 Ind. App. Superior Oil Co. v. "Whiteman, 19 Ind. 626; Houk v. Hicks, 11 Ind. App. App. 149; Bryant v. Stout, 16 Ind. 190; Crist v. Jacoby, 10 Ind. App. App. 380. 688 ; Williamson v. Brandenberg, 6 « Florer v. State, 133 Ind. 453. Ind. App. 97. = Funk v. Eentchler, 134 Ind. 68. ^ Saunders v. Montgomery, 143 Ind. See Clark Co., etc., Co. v. Wright, 16 185; Moore v. Morris, 142 Ind. 354; Ind. App. 630. Florer v. State, 133 Ind. 453. But see ^ May v. State, 140 Ind. 88. Holliday v. Thomas, 90 Ind. 398. ' Section 7, ante^. 'Black V. Thompson, 136 Ind. 611; § 136 ASSIGNMENT OF ERRORS. 205 original error, but to the ruling of the court when it was pre- sented in an appropriate manner for its consideration. But it is provided by statute ' that the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action, shall not be deemed waived by any failure to object to the maintenance of the action for either of those reasons. Under this section it is held that the insufficiency of the complaint may be assigned as error in the supreme court, although not questioned in any manner in the court below.' The reason of this rule is that it is thought improper for a person to hold a judgment when he had no cause of action, and it is assumed that if he had a cause of action he would have stated it. But it necessarily follows that it is only the complaint as a whole which can be attacked in this manner, and not a single paragraph.' The complaint must be held good when attacked for the first time on appeal, if any para- graph states facts sufficient to bar another action for the same cause,* and does not entirely omit any fact essential to the ex- istence of plaintiff's cause of action.' It is thus apparent that timely objection should be made in the trial court to the suffi- ciency of the complaint, if the right to question single para- graphs is to be exercised on appeal. It will also be observed that the complaint can not be questioned for the first time on appeal for any other cause except that it fails to state facts suf- ficient to constitute a cause of action.'' ' R. S. 1894, § 346. 369 ; Board, etc., v. Tichenor, 129 Ind. 'Ferguson v. Hull, 136 Ind. 339; 562; Lake v. Lake, 99 Ind. 339; DeVay Hutchings v.Hay, 132 Ind. 369 ; Board, v. Dunlap, 7 Ind. App. 690. etc., V. Tichenor, 129 Ind. 562 ; Ash- « Board, etc., v. Chipps, 131 Ind. 56 ; ton V. Shepherd, 120 Ind. 69; Branch Robinson v. Powers, 129 Ind. 480; V. Faust, 115 Ind. 464; Hoke v. Ap- Xenia R. Co. v. Macy, 147 Ind. 568, plegate, 92 Ind. 570; Elmore v. Mc- Citizens', etc., R. Co. v.Willoeby, 134 Crary, 80Ind. 544; Wagner v. "Wag- Ind. 563; Bedford Belt R. Co. v. ner, 73 Ind. 135 ; Thatcher v. Turney, Brown, 142 Ind. 659. 7 Ind. App. 667. s McGregor v. Hubbs, 125 Ind. 487 ; * Ashton V. Shepherd, 120 Ind. 69; Du Souehet v. Butcher, 113 Ind. 249; United States, etc., Co. v. Rawson, 106 Laverty v. State, 109 Ind. 217. Ind. 215 ; Hutchings v. Hay, 132 Ind. « Haya v.Walker, 90 Ind. 105 ; Bundy 206 APPELLATE PRACTICE. § 137 By analogy to the rule in civil cases, it is held that an in- dictment or information may be attacked for the first time by an assignment of error, where it fails to state facts constituting a public offense,' since it would clearly be unjust to punish a person for doing that which was not a crime. ^ The objection that the court did not have jurisdiction over the subject of the action may also be presented for the first time by an assign- ment of error.' There are so few subjects over which our courts of superior jurisdiction do not have jurisdiction, that this assignment of error will seldom be used. It may be sug- gested, however, that the superior courts of counties where they are organized have no jurisdiction of probate matters, criminal prosecutions, nor suits for slander; that our criminal courts have no jurisdiction over civil matters, and that pro- ceedings in bankruptcy, proceedings for the violation of the postal laws or United States revenue laws, and other actions under the federal statutes, are not within the jurisdiction of any of our state courts.* § 137. Assignment must be supported by the record and can not contradict it. — All appeals are tried solely by the rec- ord,' which imports absolute verity and can not be contradicted in any manner. ° The assignment of errors must therefore be based on facts shown by the record and can not contradict it.' It is not even permissible to show by afiidavits that an error was really committed which the record does not disclose.' Therefore, an assignment of error which alleges that the court V. Pool, 82 Ind. 602 ; Hawkins v. Mc- * See Shoemakerv. South Bend, etc., Dougal, 126 Ind. 539. Co., 135 Ind. 471. 1 Hays V. State, 77 Ind. 450. ° Section 122, ante. ' Elliott's App. Proc, § 488. * Section 4, ante. ' R. S. 1894, § 346; Lane v. Taylor, ' Cleland v. Applegate, 8 Ind. App. 40 Ind. 495; Boys v. Simmons, 72 499; Evansville, etc., R. Co. v. Lav- Ind. 593; Harris v. Harris, 61 Ind. ender, 7 Ind. App. 655 ; Elliott's App. 117 ; Lowery v. State Life Ins. Co., — Proc, § 316. Ind. — , 54N. E. Rep.442; section 38, ^-^ishmier v. State, 110 Ind. 523; ante; section 289, post. Thames Loan, etc., Co. v. Beville, 100 Ind. 309 ; section 208, post. § 138 ASSIGNMENT OF ERRORS. 207 did something that the record does not show it to have done must be disregarded.' § 138. Joint assignment must be good as to all who Join in it. — If several appellants join in an assignment of errors, it must be good as to all the persons joining therein or it will be held insufEcient as to each of them.^ Thus, where judgment is given against one party only and several persons unite in a joint assignment of errors, the assignment will not raise any question.' And where several persons who have waived an error unite in a joint assignment of errors with others who have not waived it, the error will not be available to any of the parties.* The reason of the,rule would not apply to prevent appellants from severally assigning as error a ruling which affected them jointly, provided the assignment of error was properly framed.' And it is held that where a part of the judgment defendants take an appeal in which the others de- cline to join, those appealing may assign as error a ruling to which all the defendants reserved a joint exception.* But where the parties present separate pleadings or motions and re- serve separate exceptions to the rulings of the court thereon a joint assignment of. errors questioning such rulings will receive no consideration.' Where an assignment of errors stated that a number of ap- pellants "separately and severally aver that the court erred" in certain rulings, it was held that the assignment was joint as to the parties, and that the words "separately and severally" 'Evansville, etc., E. Co. V. Laven- 19 Ind. App. 520; McFarland v. der, 7 Ind. App. 655; Cleland v. Ap- Pierce, 151 Ind. 546; Armstrong v. plegate, 8 Ind. App. 499. Dunn, 143 Ind. 433 ; Medical College, ^Earhart v. Farmers' Creamery, etc., v. Commingore, 140 Ind. 296. 148 Ind. 79 ; Goss v. Wallace, 140 Ind. * Earhart v. Farmers' Creamery, 148 641 ; Carr v. Carr, 137 Ind. 232 ; King Ind. 79. V. Easton, 185 Ind. 353; Board, etc., =See Harter v. Parsons, 14 Ind. V. Fraser, 19 Ind. App. 520; Supreme App. 331. Council, etc., v. Boyle, 15 Ind. App. « Alexander v. Gill, 130 Ind. 485. 342; Cannelton, etc., Co. v. Burkett, 'Louisville, etc., E? Co. v. Smoot 13 Ind. App. 277. 135 Ind. 220; Town of Ladoga v! 'M.A. Sweeney Co. V. Fry, 151 Ind. Linn, 9 Ind. App. 15; Hubbard v 178, 181 ; Board, etc., Co. v. Fraser, Bell, 4 Ind. App. 180. 208 APPELLATE PRACTICE. § 139 must be held to relate to the rulings attacked/ It is held that a number of parties can not assign errors separately without making their assignments separate/ though all may be written under a single title.' There is one well-defined exception to this rule, however, and that is this: Where a husband and wife join in an assignment of errors, it will be good as to both, if it is good as to the wife.' This exception grows out of the fact that a husband and wife are still permitted to sue jointly to enforce the separate rights of the wife.° § 139. When and how cross-errors may be assigned. — There is no statute expressly providing for the assignment of cross- errors,' but a rule of court that has been in force for many years' provides that the appellee may as of right and without notice assign cross-errors within sixty days after the submis- sion of a cause; but if cross-errors are not assigned within that time, then notice shall be given the appellant and leave applied for in writing. The application for leave to assign cross-errors shall show a satisfactory excuse for the failure to assign cross-errors within sixty days from the time of the sub- mission of the cause or the application will be denied. There shall be no assignment of cross-errors, unless it is made within one year from the time the judgment appealed from was ren- dered.' The record must affirmatively show that the cross- errors were assigned within the time allowed or they will not be considered.' The practice of assigning cross-errors is well established in this state." Most of the principles governing the assignment of errors also apply to the assignment of cross- errors, but, as notice does not usually issue on the cross-errors, ' Sibert V. Copeland, 146 Ind. 387; « Stewart v. Babbs, 120 Ind. 568; Armstrong v. Dunn, 143 Ind. 433; Magel v. Milligan, 150 Ind. 582. Carver v. Carver, 97 Ind. 497; Han- = Elliott's App. Proc, § 319. over School Township v. Gant, 125 « peder v. Field, 117 Ind. 386. Ind. 557. 'Rule 5 Sup. Ct. 2 Sibert v. Copeland, 146 Ind. 387. ' Rule 5 Sup. Ct. » Breyfogle v. Stotsenburg, 148 Ind. ' Cohoon v. Fisher, 146 Ind. 583. 552. "Merritt v. Eichey, 127 Ind. 400; Feder v. Field, 117 Ind. 386. § 139 ASSIGNMENT OF ERKOKS. 209 it is held unnecessary to make an assignment of cross-errors contain the full names of all the parties.' Cross-errors are usually assigned when the appellee believes that some erroneous ruling in the appellant's favor nullifies the effect of the errors of which appellant complains. But an appellee may do more than save costs or prevent a reversal by making an appropriate assignment of cross-errors. In many instances he may accomplish as much by the assignment of cross-errors in a case appealed by his adversary as he could by prosecuting a separate appeal.* Cross-errors are accordingly assigned in many cases where the appellee is dissatisfied with the judgment, and only fails to take an appeal because the ad- verse party has taken one before he had an opportunity. It is frequently true that the appellant will omit parts of the record essential to a proper understanding of the cross-errors which the appellee may wish to assign f but there are many cases in which the transcripts filed by the appellant must necessarily embrace the entire record and exhibit his adversary's case as well as his own/ and when it does not no good reason is ap- parent why the appellee should not be permitted to make the record complete by a writ of certiorari, instead of taking an independent appeal/ which must necessarily be consolidated with the first appeal.' . Notice of the assignment of cross-errors is required only when the assignment is made upon leave after the expiration of sixty days from the time the cause was submitted,' or when ' Nichol V. Henry, 89 Ind. 54 ; State * Feder v. Field, 117 Ind. 386, 389. V. First Nat'l Bank, 89 Ind. 302 ; Bus- = Merritt v. Eichey, 127 Ind. 400. enbark v. Clements, — Ind. App. • — , « Feder v. Field. 1 17 Ind. 386. Where 53 N. E. Rep. 665. two actions are pending in an appel- ' Patoka Township v. Hopkins, 131 late court between the same parties, Ind. 142; Carnahan v. Schwab, 127 and the relief sought to be obtained Ind. 507 ; Merritt v. Richey, 127 Ind 400; Feder v. Field, 117 Ind. 386 Rochester v. Levering, 104 Ind. 562 Thomas v. Simmons, 103 Ind. 538 Jetfersonville R. Co. v. Harrold, 3 Ind by each action is the same, such court may order the actions to be consoli- dated and heard at the same time. Oldfather v. Zent, 11 Ind. App. 430; Home V. Harness, 18 Ind. App. 214. ^PP-592. 7 Rule 5 Sup. Ct.; Elliott's App 'Elliott's App. Proc, § 421. Proc, § 422, 14— App. Pkacticb. 210 APPELLATE PRACTICE. § 140 some of the parties have taken no active part in the appeal and the appellee desires affirmative relief/ Where the appel- lee asks no affirmative relief and the judgment would be affirmed on the case made by the appellant, no notice will be taken of the cross-errors in the opinion of the court.' It should be remembered that the time allowed for the assignment of cross-errors dates from the submission of the cause,^ and not from the filing of the transcript. As a cause is' usually not submitted until thirty days after &U. parties have been served with notice of the appeal, and never until all the parties are in court, it is not usually necessary that any process should issue on the cross-assignment, if it is made within the time limited; but where cross-errors are assigned by leave of court after the expiration of sixty days from the time of submission, notice to all the other parties of the application for leave to as- sign them is essential.' § 140. What may be reached by an assignment of cross-er- rors, — The appellee may, by an assignment of cross-errors, present any question which he might present by an independ- ent appeal, so far as the same is shown by the transcript.' After cross-errors have been properly assigned, the appellee's rights will not be affected by a dismissal of the principal ap- peal,^ and, in a proper case, the supreme court will reverse the judgment on the assignment of cross-errors, and direct the trial court what course it shall pursue.' It is accordingly held that where the appellee takes an independent appeal after hav- ing assigned cross-errors in the appeal taken by his adversary, the second appeal should be dismissed.' Where the plaintiff appeals, the defendant may test the sufficiency of his com- plaint by an assignment of cross-errors,' and if the complaint ' Feder v. Field, 117 Ind. 386. 'Federv. Field, 117 Ind. 386; John- ' Thomas v. Simmons, 103 Ind. 538. son v. Culver, 116 Ind. 278; Gimbel v. » Rule 5 Sup. Ct. Green, 134 Ind. 628. i Rule 5 Sup. Ot. ' Home v. Harness, 18 Ind. App. SFederv.Field, 117 Ind. 386; Home 214. V. Harnpss, 18 Ind. App. 214; Patoka 'State v. Harris, 89 Ind. 363; An- Township V. Hopkins, 131 Ind. 142. derson, etc., Assn. v. Thompson, 8& SFederv. Field, 117 Ind. 386; Home Ind. 405'. V. Harness, 18 Ind. App. 214. § 140 ASSIGNMENT OF ERRORS. 211 be found incurably bad, the judgment will be afHrmed, not- withstanding any errors that may have been committed.' But it has been held that in the absence of an assignment of cross-errors questioning the complaint, its sufficiency will not be considered in determining an appeal by the plaintiff.' Neither will the correctness of rulings to which the appellee saved exceptions and which he insists operated to his preju- dice.' The correctness of the judgment on the facts found,' or the ruling of the court on a motion to modify the decree,' or on the appellee's motion for a new trial,* or any other ruling which could be questioned in an independent appeal by the appe^ee, may be attacked by an assignmentof cross-errors, pro- vided the transcript discloses the ruling and appellee's excep- tion thereto.' Where the appellee insists on an affirmance of the judgment, it will not be reversed on the cross-errors;' but where the appellee suffered a judgment against himself, or is insisting that the judgment in his favor should be reversed be- cause not sufficiently large, the cross-errors will be fully con- sidered and passed on.' Where a case is briefed by both parties without any objection being made to a consideration of the questions presented by the cross-errors, and a judg- ment is pronounced deciding such questions, it is then too late to object that the cross-errors were not so assigned as to be entitled to consideration.'" Parties must give such at- tention to their cases as to know what questions are presented and discussed before a decision is rendered. ■' State V. Harris, 89 Ind. 363 ; Oarmel ' Nutter v. Junction E. Co., 13 Ind. Natural Gas, etc., Oo.v. Small, 150 Ind. 479. *27. 'State V. Gregory, 119 Ind. 503; " Anderson, etc., Assn. v. Thomp- Thomas v. Simmons, 103 Ind. 538. son, 88 Ind. 405. See Carmel Natural ^ Rochester v. Levering, 104 Ind. Gas, etc., Co. v. Small, 150 Ind. 427. 562; Johnson v. Culver, 116 Ind. 278, ' Evansville, etc., R. Co. V. Hosier, 289; Feder v.- Field, 117 Ind. 386; 114 Ind. 447. Gimbel v. Green, 134 Ind. 628; Jef- ' Feder v. Field, 117 Ind. 386, 390. fersonville, etc., B. Co. v. Harrold, 3 5 Patoka Township v. Hopkins, 131 Ind. App. 592; Home v. Harness, 18 I"''- ^42. Ind. App. 214. ' Merritt v. Richey, 127 Ind. 400; " Gimbel v. Green, 134 Ind. 628. Johnson v. Culver, 116 Ind. 278. 212 APPELLATE PRACTICE. § 141 § 141. Necessity of an assignment of errors in criminal cases. — The criminal code does not expressly require an as- signment of errors in appeals of criminal cases/ but it has been the settled practice for nearly fifty years to require such an assignment,^ and it is expressly required by the rules of court in all cases." In such cases, as well as in civil cases, the assignment of errors is held to constitute the appellant's complaint, in the absence of which his appeal will be dis- missed.* The same rule as to making the assignment specific applies in such cases that is enforced in civil oases,' and the rule of court prescribing the conditions on which amendments shall be allowed* applies to an appeal of this kind.' If a specification of error applies equally to two different rulings of the trial court, the appellant may not present both rulings for consideration under \h.e single specification, but both will be entirely disregarded." The rule requiring specific assignments of error is sometimes given a very liberal construction, how- ever, where it is apparent that the defendant was erroneously convicted.' ' Sturm V. State, 74 Ind. 278, 282. ^Dye v. State, 130 Ind. 87; May v. * Sturm V. State, 74 Ind. 278; May State, 140 Ind. 88; Pemberton v. V. State, 140 Ind. 88. State, 85 Ind. 507. 'Rule 4 Sup. Ct.; Sturm v. State, * Rule 4 Sup. Ct. ; section 132, ante. 74 Ind. 278 ; Burst v. State, 88 Ind. ' State v. Ross, 4 Ind. App. 480. 841; Harvey v. State, 80 Ind. 142; « May v. State, 140 Ind. 88. State V. Ross, 4 Ind. App. 480. ' Dye v. State, 130 Ind. 87. * Burst V. State, 88 Ind. 341. CHAPTER 12. PARTIES TO THE APPEAL. § 142. Only real party in interest § 147. Exception to rule requiring can appeal — Actual con tro- co-parties to be notified, versy, 148. Effect of co-party's failure to 143. Appeal by part of judgment appeal. defendants. 149. Who must be named and given 144. Appellant must be party to notice as appellees. judgment. 150. Waiver of defect of parties. 145. Effect of death of party. 151. Motion to dismiss for defect of 146. Who must be named and given parties. notice as co-appellants. § 142. Only real party in interest can appeal — Actual con- troversy. — It is provided by statute that every action must be prosecuted in the name of the real party in interest,' with an exception in favor of executors, administrators, trustees of ex- press trusts and persons expressly authorized by statute to maintain actions in their own names. ^ The statute granting an appeal in civil cases' gives the right to appeal from a judgment to "either party," to which a subsequent section adds the per- sonal representatives of a deceased party;* that is, his admin- istrator, if the appeal is taken from an ordinary personal judg- ment,' or his heirs, if the judgment concerns title to real es- tate,' or both heirs and personal representatives in case a per- sonal judgment was rendered against the decedent with a de- cree affecting his land.' Under the above provisions of the statute the courts have also permitted appeals by the receivers and assignees of insolvent parties, and others who by any > R. S. 1894, § 251. 5 Branham v. Johnson, 62 Ind. 259. 'E- S. 1894, § 252. « Vail v. Lindsay, 67 Ind. 528. ' E- S. 1894, § 644. ■ Benoit v. Schneider, 39 Ind. 591. *E.S. 1894, §648. (213) 214 APPELLATE PRACTICE. § 142 means succeed to the legal interest of a party in the contro- versy. Another section of the statute' expressly provides for continuing the action in case of a transfer of interest pending litigation, either in the name of the original party or of the party to whom such interest is transferred.^ But there is no authority for any one to maintain an appeal except a party having an interest in the controversy,' and if a person having no legal interest in a controversy procures himself to be made a party to the suit in the trial court, he will not be permitted to prosecute an aj)peal.* Thus, where the directors of a railroad company to which township aid has been voted procured themselves to be made parties to an application for an injunction against the collec- tion of a tax to pay the voted aid, on the ground of its ille- gality, and afterward took an appeal from a final judgment ■ holding the petitioners entitled to an injunction, and granting one, the appeal was dismissed on the ground that the directors never legally became parties to the suit, and were not parties to the judgment.'' But if a plaintiff voluntarily makes a party a defendant to his complaint, he can not successfully deny the right of that party to appeal from the judgment recovered in the action.^ The term "parties," as used in the statute re- lating to appeals, means parties to the judgment and not par- ties to the action.' Thus, where the appellant was sued by the style of trustee of a certain township, and judgment was given against the township without mentioning the trustee in his official capacity or otherwise, it was held that the trustee had no interest in the judgment and could not appeal from it, though he assigned errors by the same name and style in which he was sued.' And where a suit was brought against the board of commissioners of a county, but the only judg- ment pronounced was against the individual members of the ' R. S. 1894, § 272. ^ Jager v. Doherty, 61 Ind. 628. "Pond V. Irwin, 113 Ind. 243; « Renner v. Ross, 111 Ind,269. Mathis V. Thomas, 101 Ind. 119. ' Hogan v. Robinson, 94 Ind. 138. ' Shoemaker v. Board, etc,, 36 Ind. 'Moon v. Cline, 11 Ind. App. 460; 175. Mcllwaine v. Adams, 46 Ind. 580. « Case V. Case, 137 Ind. 526. § 142 PAKTIES TO THE APPEAL. 215 board, who were not parties to the action, it was held that the board of commissioners could not maintain an appeal.' The appealable interest should, as a rule, be shown by the record.^ But this rule is subject to exceptions. Persons who are shown to have succeeded to the interest of a party pending litigation, by assignment, or as executors or administrators, will, of course, be permitted to maintain an appeal under the express provision of the statute.' And an appeal is sometimes allowed to a person who is not named in a judgment, where he claimed an interest in the controversy, and was denied all the relief asked.' Thus, where two parties claimed the price of some potatoes that had been sold to a third party, who paid ' the money into court with a request that the claimants be required to interplead, and the trial court gave judgment for the money in favor of one of them without naming the other, the latter was permitted to maintain an appeal to the supreme court by which the judgment was reversed.' And where a party who had applied for leave to intervene and file a cross-complaint had been denied the privilege, he was permitted to appeal, al- though he was not mentioned in the final judgment. ° But in any case, it must be shown to the satisfaction of the court that there is a real controversy, arid that the appellant has some real interest therein, or an appeal can not be maintained.' But where the parties to the appeal were parties in the court below, and the proceeding on its face appears to be an acti^al adversary proceeding, it will be presumed to be such, and decided as such,* unless it is affirmatively shown to the court that the controversy is only feigned. The 'Board, etc^, v. Pershing, — Ind. 'Staufter v. Salimonie, etc., Co., 147 App. — , 53 N. E. Kep. 297; City of Ind. 71; Case v. Case, 137 Ind. 526. South Bend v. Thompson, 19 Ind. One who petitions to have anotlier de- ■"^PP- 19- clared insane can not appeal from a ' Elliott's App. Proc, § 133 ; Case v. judgment declaring him of sound mind Case, 137 Ind. 526. Jnd ordering that the petitioner pay ' R- 8. 1894, § 272. the costs. Studabaker v. Markley, 7 'Elliott's App. Proc, § 136. Ind. App. 368. * Brooks V. Doxey, 72 Ind. 327. « Witz v. Dale, 129 Ind. 120. * Coburn v. Smart, 53 Cal. 742 ; cited, Elliott's App. Proc, § 136. 216 APPELLATE PRACTICE. § 143 good faith of the parties to an appeal is, in fact, seldom questioned; but where the parties to the appeal were not parties in the court below, as where the appellant and appel- lee, respectively were attorneys for the plaintiff and defend- ant, the supreme court of its own motion may take notice of the feigned character of the controversy and dismiss the ap- peal.' Where an agreed case is submitted, the statute expressly requires an affidavit that the controversy is genuine and the proceeding in good faith to determine the rights of the parties." If the fictitious character of an appeal is shown to the supreme court, it will be dismissed,' even though final judgment on the appeal has been pronounced, and a rehearing must be granted as a preliminary step to ordering the dismissal; * but where all the parties to the appeal file their own affidavits that the ac- tion is in good faith, the court will not dismiss it.° Where a party ceases to have any interest pending' the appeal, and that fact is properly shown to the supreme court, ^ or is apparent from facts of which the court takes judicial notice,' he will no longer be permitted to maintain an appeal. But the dismissal of an appeal taken by a party against whom a personal judg- ment was rendered, and who assigned errors in his own name, can not be obtained by showing that the appeal is being prosecuted at the instigation and for the benefit of a person who is not a party to the record.' The fact that the appellant has no appealable interest is usually presented by a motion to dismiss the appeal, supported by afiidavits stating the facts re- lied on to obtain a dismissal.' § 143. Appeal by part of Judgment defendants. — ^The civil code gives general authority for a part of several co-appellants " Pierse v. West, 29 Ind. 266. « Stauffer v. Salimonie, etc., Co., 147 2 E. S. 1894, § 562. Ind. 71. 5 Stauffer v. Salimonie, etc., Co., 147 ' State v. Mount, 151 Ind. 679. Ind. 71. See Smith v. State, 140 Ind. ' American, etc., Co. v. Faust, 11 343 ; Brewington v. Lowe, 1 Ind. 21 ; Ind. App. 638. Hotchkiss V. Jones, 4 Ind. 260. » Stauffer v. Salimonie, etc., Co., 147 « Smith V. Junction R. Co., 29 Ind. Ind. 71 ; Smith v. Junction R. Co., 29 546. Ind. 546; Williams v. Richards, 152 5 Parker v. State, 132 Ind. 419. Ind. 528. § 144 PARTIES TO THE APPEAL. ' 217 to appeal by serving proper notice upon all the other co-par- ties,' and a late statute excuses the service of this notice when the appeal is taken in term/ The criminal code provides that when several defendants are tried jointly, any one or more of them may take an appeal; but those who do not join in the appeal shall not be affected thereby.' Where a separate appeal is taken by part of the judgment defendants in which their co-defendants decline to join, the parties appealing may assign as error a joint exception reserved by them and their co-parties who do not join in the appeal.' But the party appealing can only take advantage of errors which injuriously affected his own rights.' He can not take advantage of erroneous rulings against his co-party who does not join in the appeal.* § 144. Appellant must be party to judgment. — The statute grants the right of appeal in civil cases only to parties and to persons succeeding to their rights;' and the criminal code gives the right to maintain an appeal only to the defendant in case of his conviction, or to the state in case he is acquitted.' It is, therefore, a general rule that only parties to the judgment can prosecute an appeal,^ and any other person asserting the right to take an appeal must show that he has succeeded to the rights of one who was a party to the judgment," or has otherwise become possessed of an appealable interest." Only persons whose rights are injured by a judgment or ruling are permitted to maintain an appeal therefrom,'^ and it is seldom that a person can be affected by a judgment to which he was not a party, except where he succeeds to the rights of a party after suit is commenced." It is not all parties to the action in the court below that may maintain an appeal, but only parties • E. S. 1894, § 647. ' Section 142, ante. ^ Burns' Supp. 1897, §§ 647a, 6476. « E. S. 1894, § 1954. »E.S. 1894, §1959. 9 Case v. Case, 137 Ind. 526; El- ' Alexander v. Gill, 130 Ind. 485; liott's App. Proc, § 132. § 138, ante. lo Elliott's App. Proc, § 132. = Section 254, post. " Elliott's App. Proc, § 103. « Wiley V. Coovert, 127 Ind. 559; '^ Section 254, post. Moelering v. Smith, 7 Ind. App. 451. '^ Elliott's App. Proc, § 133. 218 APPELLATE PRACTICE. § 145 to the judgment appealed from,' and where a party erroneously procures himself to be made a party to an action in which he has no legal interest/ or is named as a party in an action where no judgment is sought against him and none is rendered,' he can not maintain an appeal from the judgment rendered against other parties. Neither will a stranger be permitted to maintain an appeal for the purpose of determining some ques- tion that is presented by the record when the judgment de- fendant himself is content to let the judgment stand.* In some cases, however, where a party has asserted a substantial interest in the matter in controversy and has done all in his power to be made a party to the record, he 'may be permitted to appeal from a judgment refusing him that privilege.' § 145. EJBect of death of party. — A court can not acquire jurisdiction of a person who is dead, and therefore an appeal in the name of a deceased party, who died after judgment but before the appeal was taken,* or in which such a deceased party is named as the appellee,' is an absolute nullity and will be stricken from the docket.' In such a case the court does not even acquire jurisdiction to permit the substitution as parties of the heirs or personal representatives of the decedent.' The statute which provides that in case of a transfer of interest in the subject-matter of a suit pending litigation the action may be continued in the name of the original party," does not operate to permit an appeal to be taken in the name of such a party after his death." After an appeal has been perfected, the ' Case V. Case, 137 Ind. 526; Moon « Moore v. Slack, 140 Ind. 38; Bran- V. Oline, 11 Ind. App. 460; Studa- ham v. Johnson, 62 Ind. 259; Taylor baker v. Markley, 7 Ind. App. 368; v. Elliott, 53 Ind. 441 ; Taylor v. El- Mcllwaine v. Adams, 46 Ind. 580; liott, 52 Ind. 588. Jager v. Doherty, 61 Ind. 528. ' Doble v. Brown, 20 Ind. App. 12. « Jager v. Doherty, 61 Ind. 528. ' Moore v. Slack, 140 Ind. 38; Doble 5 Moon V. Cline, 11 Ind. App. 460; v. Brown, 20 Ind. App. 12; Taylor v. Mcllwaine v. Adams, 46 Ind. 580. Elliott, 53 Ind. 441. See Alexander v. Gill, 130 Ind. 485. ' Moore v. Slack, 140 Ind. 38 ; Doble * Pierse v. West, 29 Ind. 266 ; Studa- v. Brown, 20 Ind. App. 12 ; Taylor v. baker v. Markley, 7 Ind. App. 368. Elliott, 53 Ind. 441. 5 Brooks v.Do'xey, 72 Ind. 327 ; sec- '" E. S. 1894, § 272. tion 142, ante. " Taylor v. Elliott, 52 Ind. 588. § 146 PARTIES TO THE APPEAL. 219 death of any or all of the parties will not cause the proceed- ings to abate; but the names of the proper parties may be sub- stituted by consent or on motion after proper notice, and the cause may proceed.' If a party dies after the submission of a cause, no substitution of parties is necessary, but judgment on appeal will be rendered as of the term at which the submis- sion was made.^ The statute provides that in case of the death of any or all of the parties to a judgment before an appeal is taken, an appeal may be taken by and notice of appeal served on the persons in whose favor and against whom the action might have been rendered if death had occurred be- fore judgment.' Under this provision of the statute, in case of the death of a party, it is necessary to name his administrator as a party to the appeal from an ordinary personal judgment,* or his heirs if the judgment concerns title to real estate,' while if the judgnient partakes of both- characters it is necessary to join both heirs and administrator. ° § 146. Who must be named and given notice as co-appel- lants. — The question who can maintain an appeal is not nearly so often important in determining who is at liberty to prose- cute an appeal from- a judgment with which he is dissatisfied, as it is in deciding whom he shall join with him as co-appel- lants of those parties who fail or refuse to take an active part in appealing. It is an elementary rule in appellate proceed- ings that all the parties to and affected by the judgment ap- pealed from must be actually or constructively included in the appeal,' so that one appeal may dispose of all questions in the case in a manner that shall bind all parties. And unless all the parties whose rights will necessarily be affected by the judgment on appeal are brought before the court in a legal 'R.S.1894, §649; Hahnv.Behrman, 'Branham v. Johnson, 62 Ind. 239. 73 Ind. 120. But see Section 166, post. = Vail v. Lindsay, 67 Ind. 528. = R. S. 1894, §675; Gas Light, etc., «Benoit v. Schheider, 39 Ind. 591. Co. V. City of New Albany, 139 Ind. ' Abshire v. Williamson, 149 Ind. 660; Willard v. Albertson, — Ind. 248; Michigan Mutual, etc., Co v App. -, 53 N. E. Rep. 1076, 1077; Frankel, 151 Ind. 534; Hunderlock v Lookenour v. Sides, 57 Ind. 360. Dundee, etc., Co., 88 Ind 139 » R. S. 1894, § 648. 220 APPELLATE PRACTICE. § 146 manner, so that the case may be decided as an entirety, the appeal will be dismissed/ The statute which grants a part of several co-parties the right to appeal^ provides that, in case they do so, they must serve notice of the appeal upon all the other co-parties, and file the proof thereof with the clerk of the supreme court.' The giving of this notice is not required, in term appeals;' nor need the co-parties be named in the as- signment of errors in such appeals,' because the steps required in taking a term appeal are deemed sufficient notice to the ad- verse party. But in a vacation appeal the appellant must, at his peril, determine who are his co-parties, and serve them with proper notice, under penalty of having his appeal dis- missed without consideration if he omits to give notice to the proper parties. ° The word co-party, as used in this connec- tion, means the parties against whom judgment is rendered,' and who may therefore have a legal interest in overthrowing it, and not co-parties plaintiff or defendant in the court below in the issues formed on either the complaint or cross-com- plaint.* If no judgment was rendered either for or against one who was a co-party with the appellant in the court below, and he has no interest in the appeal, it is not necessary to join him as an appellant,' nor in any other capacity." If several actions ^ Abshire v. Williamson, 149 Ind. Martin, 131 Ind. 1 ; Anheuser, etc., 248; Michigan Mutual, etc., Oo. v. Assn. v. George, 14 Ind. App. 1; Frankel, 151 Ind. 534. Perry v. Botkin, 15 Ind. App. 83. 2 R. S. 1894, § 647. ' Lowe v. Turpie, 147 Ind. 652; Mid- 5 Acts 1899, p. 5, amending § 647, land E. Co. v. St. Clair, 144 Ind. 363; E. S. 1894. Benbow v. Garrard, 139 Ind. 571; « Burns' Supp. 1897, §§ 647a, 6476. Gregory v. Smith, 139 Ind. 48; Clapp 'Burns' Supp. 1897, § 647a; Smith v. Allen, 20 Ind. App. 263; Anderson V. Wells Mfg. Co., 144 Ind. 266; Lowe Glass Co. v. Brakeman, 20 Ind. App. V. Turpie, 147 Ind. 652. 226. ^Michigan Mutual, etc., Co. v. 'Gregory v Smith, 139 Ind. 48; Frankel, 151 Ind. 534; Abshire v. Hadley v. Hill, 73 Ind. 442. Williamson, 149 Ind. 248; Smith v. ^ Alexander v. Gill, 130 Ind. 485; Wells, etc., Co., 144 Ind. 266; Shu- Koons v. Mellett, 121 Ind. 685; man v. CoUis, 144 Ind. 333 ; Lee v. Clear Creek Township v. Eittger, 12 Mozingo, 143 Ind. 667 ; Vordermark Ind. App. 355. V. Wilkinson, 142 Ind. 142; Hutts v. "Hogan v. Eobinson, 94 Ind. 138; § 146 PARTIES TO THE APPEAL. 221 are consolidated, and a judgment rendered against persons who were originally parties to the different actions, all such persons suffering judgment are co-parties and must be served with notice of an appeal taken by one of them.' But if sepa- rate judgments are rendered against different parties on issues formed on the complaint and cross-complaints, a party appeal- ing from a separate judgment against him is not bound to join as appellants other parties who suffered judgment in favor of the appellee, but have no interest in the judgment appealed from.^ The notice to co-appellants is required in order that they may appear and assign errors at any time before the ex- piration of the period allowed for taking an appeal, and, there- fore, they must be made co-appellants ; and naming them as appellees in the assignment of errors and giving them notice as appellees is not sufficient.' Making them appellees is no better than not making them parties at all.' After much wav- ering, it is at last settled by our supreme court that filing proof of notice to co-parties is essential to the jurisdiction of a vaca- tion appeal, unless such notice is waived by the parties en-, titled thereto,* and that a failure by the appellee to object for this reason until after the cause has been submitted and argued does not amount to a waiver of such an objection.'' It is held that while an appellee may have authority to waive notice to himself, no act of his can confer jurisdiction on the supreme court over the co-parties of the appellant, and that the supreme court can not decide an appeal in which it has not obtained jurisdiction of the parties.' Under this ruling an ap- Eaaterv.Severin, 78 Ind. 540; Logan «Lee v. Mozingo, 143 Ind. 667; V. Logan, 77 Ind. 558 ; Wilson v. Stew- Gregory v. Smith, 139 Ind. 48. art, 63 Ind. 294. ^ s Sections 147, 164, post. ' Walsh V. Brockway, 13 Ind. App. « Michigan Mutual, etc., Co. v. ^''- . Frankel, 151 Ind. 534; Abshire v. ^^Zimmerman v. Gaumer, 152 Ind. Williamson, 149 Ind. 248; Lowe v. "• . Turpie, 147 Ind. 652; Lee v. Mozingo, Smith V. Wells, etc., Co., 144 Ind. 143 Ind. 667 ; Vordermark v. Wilkin- 20t); Shuman v. Collis, 144 Ind. 333; son, 142 Ind. 142; Hutts v. Martin, Lee V. Mozingo, 143 Ind. 667; Vor- 131 Ind. 1. dermarkv. Wilkinson, 142 Ind. 142; 'Michigan Mutual, etc., Co. toegory V. Smith, 139 Ind. 48. Frankel, 151 Ind. 534; Abshire 552 8 V. V. Williamson, 149 Ind. 248. 222 APPELLATE PRACTICE. § 147 pellant who is not careful to give proper notices may get his case submitted and briefed, and be waiting for a decision, when he will find, as did the attorneys for the appellant in the case cited,' that his opponent has filed a motion to dismiss as soon as the year had expired within which a, second appeal could be taken, and will suffer the dismissal of his appeal after it is too late to take another one. If a co-party has died after judgment and before the appeal is taken, notice must be served on his heirs or his personal representatives.^ § 147. Exception to rule requiring co-parties to be noti- fied. — We have seen that where a co-party of the appellant in the court below ceases to have any interest in the subject-mat- ter of the action before judgment is pronounced, or for some other reason, no judgment whatever is pronounced against him,' and where an appeal is perfected as a term appeal,' no- tice to co-parties is unnecessary. But it must be remembered that notice is not excused on the ground that an appeal was taken in term, unless all the steps necessary to perfect a term appeal were properly taken within the time allowed by stat- ute.' The appeal bond must be filed at the proper time and approved by the court, and air the other necessary steps prop- erly taken, or notice to co-appellants is essential. ° Notice to co- parties may also be excused when they voluntarily appear and waive such notice;' but even then it is necessary that they should be named as appellants in the assignment of errors.' It is a settled principle of appellate jurisprudence that a court has no jurisdiction to decide an appeal until all the parties shall have been brought before it in a legal manner,' and the object of the rule requiring that all co-parties shall be named, ' Michigan, etc., Co. v. Frankel, 151 ' Section 164, post ; Traman v. Scott, Ind.534. 72Ind. 258. ' Section 145, ante. ' Section 126, ante. ' Section 146, arafe. 'Abshire v. Williamson, 149 Ind. * Section 146, ante. • 248 ; Lee v. Mozingo, 143 Ind. 667 ; = Michigan Mutual, etc., Co. v. Lilly v. Somerville, 142 Ind. 298; Frankel, 151 Ind. 534. Vordermark v. Wilkinson, 142 Ind. * Michigan Mutual, etc., Co. v. 142. Frankel, 151 Ind. 534. § 148 PARTIES TO THE APPEAL. 223 and given notice as such is to give the court jurisdiction over them. Therefore, compliance with the rule is unnecessary when the parties voluntarily appear and subrait to the juris- diction of the court, but in all other cases a strict compliance with the rule is necessary. § 148. Effect of co-party's failure to appear. — The statute providing that part of several co-parties may take a separate appeal in vacation,' provides that unless the co-parties served with notice appear and decline to join, they shall be regarded as having joined, and shall be liable for their due proportion of the costs. . If they decline to join, their names may be struck out on motion; and they shall not take an appeal afterward, nor shall they derive any benefit from the appeal, unless from the necessity of the case, except persons under legal disability.^ The statute excusing the service on co-parties of notice of a term appeal provides that it shall not be necessary to name them as parties in the assignment of errors, but any co-party ' may at any time before the determination of the appeal and within one year from the date of final judgment assign errors for himself on the record with the same effect as if he had orig- inally joined in the appeal. But in any case all such co-parties shall be bound by the judgment on appeal to the same extent as if they had been made parties.' It will thus be seen that the failure of a co-party to appear has a directly opposite effect in the different kinds of appeal. Unless a party notified as an appellant in a vacation appeal shall appear and refuse to join, he is considered an appellant and is taxed with costs; while a party is not recognized in a term appeal unless he voluntaiily appears and assigns error. In any case he is bound by a judgment against him on appeal,, and in either class of cases, if he takes the appropriate course to avoid being treated as an appellant, he can take no advantage of a judgment reversing the ease, unless, from the necessity of the case, a judgment for the appellant operates to his advantage. The rule laid down 1 Acts 1899, p. 5, amending § 647, R. ^ Acts 1899, p. 5, amending § 647, R. S- 1894. S. 1894. ' Burns' Supp. 1897, § 647a. 224 APPELLATE PKACTICE. § 149 in many cases' to the effect that all co-parties of the appellant must be named as appellants in the assignment of errors has been modified by statute so far as it relates to term appeals.' § 149. Who must be named and given notice. as appellees.— The question who are necessary co-appellants in a vacation ap- peal and must be named and served with notice as such, and who are such co-parties as need not be named nor notified in a term appeal, is not more important than the question who are necessary adversary parties and must be named and notified as appellees. There is no exception to the rule of court' which requires that the assignment of errors shall contain the full names of all the appellees,* nor to the statute which requires that all the adverse parties shall be served with notice of a va- cation appeal; ° and a rule of court imperatively requires the dismissal of any vacation appeal in which the appellees are not served with proper notice.* Even appeals in which the statute excuses the giving of notice ' to the appellees will be dismissed unless the assignment of errors is made to contain their names,* though co-appellants not joining in a term ap- peal need not be named.' It is also an elementary principle of appellate jurisprudence that before any court will proceed to adjudicate upon the subject-matter it must first acquire juris- diction over all the parties whose rights or interests will be necessarily affected by its judgment." This rule requires that a party shall be brought into court in the manner provided by law, and it is held that making a party an appellant gives the court no jurisdiction over him in the character of appellee." It follows that it is essential to the maintenance of an 1 Gregory v. Smith, 139 Ilid. 48. 'Big Four, etc., Assn. v. Olcott, 146 2 Burns' Supp. 1897, § 647a ; Smith Ind, 176 ; Garside v. WoH, 135 Ind. V. Wells Mfg. Co., 144 Ind. 266; 42. Lowe V. Turpie, 147 Ind. 652; An- ^ Burns' Supp. 1897, § 647a. derson Glass Co. v. Brakeman, 20 "Michigan Mutual, etc., Co. v. Ind. App. 226. Frankel, 151 Ind. 534; Abshire v. ' Rule 6 Sup. Ct. Williamson, 149 Ind. 248 ; Lowe v. 4 Section 126, ante. Turpie, 147 Ind. 652. 8 E. S. 1894, § 652. " Abshire v. "^illiamson, 149 Ind. « Rule 36 Sup. Ct. 248. ' R, S. 1894, § 650. § 149 PARTIES TO THE APPEAL. 225 appeal that the proper adversary parties should be named as appellees, and if the appeal was taken in vacation, should be given notice as such. A failure to do this has led to the dis- missal of many appeals.' The test for choosing who shall be made appellees has been said to be this: "Has the party an interest that the judgment appealed from be maintained?" If this is qualified by the requirement that he shall have been a party to the judgment or shall have succeeded in some legal mode to the rights of a party to the judgment who had an in- terest that it be maintained,^ this test is a safe one to apply in determining who shall be included as parties appellee in an appeal. It is ordinarily true that those who were adversary parties in the trial court shall bear the same relation on appeal. Thus, the plaintiffs below will be named as appellees in an ap- peal by the defendants. But this rule is subject to the qual- ification that if the relation of the parties to each other is changed in the course of the proceeding below by the filing of cross-complaints,' or otherwise, only those who are adverse to the appellant in the final judgment should be named as appel- lees, and all those having an interest with him in overthrow- ing it should be named as co-appellants. But if it is shown in the course of the proceedings below that part of the nomi- nal parties have no interest in the particular controversy in which the appeal is taken, and the action is discontinued as to them,' or if -the action is dismissed as to some of the parties, or they abandon its prosecution,' so that they are not parties to the judgment, it is not necessary to name them either as appellants or appellees.* In order to ascertain who are the parties to a judgment ap- pealed from, the appellate tribunal will look through the rec- ord to the pleadings, and, if necessary, to the summons.' Even 'O'Marav. Wabash K. Co., 150 Ind. ' Abshire v. WilUamson, 149 Ind. B48; Cole V. Franks, 147 Ind. 281; 248. Abshire v. Williamson, 149 Ind. 248; * Logan v. Logan, 77 Ind. 558. Jobn V. Farwell Co. v. Newman, 17 * Hogan v. Eobinson, 94 Ind. 138. Ind. App. 649; Coburn v. Whittaker, ^ Clear Creek Township v. Rittger, etc., Co., 12 Ind. App. 340. 12 Ind. App. 355; section 144, ante. ' Section 142, ante. ' Bozeman v. Cale, 139 Ind. 187. 15— App. Practice;. 226 APPELLATE PEACTICE. § 150 where a single plaintiff recovered a judgment against a number of defendants, it is necessary that one of them, in taking an appeal, should name as appellee such of the others as may have recovered judgments on cross-complaints which he wishes to attack.' Thus, where a large number of lien-holders are made defendants to an action to foreclose a mortgage, and judgment is rendered foreclosing the mortgage against all of the defendants, and other judgments are rendered determining the rights of the junior lien-holders as between themselves, a party taking an appeal must name as appellees all those whose interests in the judgment are in any way adverse to his own/ § 150. Waiver of defect of parties. — Many of the older cases held that a defect of parties to the appeal could be waived and that an agreement to submit the cause operated as a waiver of all questions as to whether the proper parties had been made appellants or appellees.' But these decisions have been overruled.' The courts now hold that they have no jurisdiction to decide an appeal until all the parties are prop- erly brought into court or voluntarily appear ,° and that while a party may waive notice to himself by voluntarily appearing and submitting to the jurisdiction of the court, ° no act of an appellee can waive the lack of jurisdiction over some other person. It therefore follows that the appearance without objection of an appellee, and his agreement to submit the cause, does not estop him from afterward moving to dismiss ^Abshirev. Williamson, 149 Ind. 84 Ind.333; Easter v. Severin,78Ind. 248 ; Hunderlock v. Dundee Mortgage, 540 ; ifield v. Burton, 71 Ind. 380. etc., Co., 88 Ind. 139; Garside v. * Michigan Mutual, etc., Co. v. Wolf. 135 Ind. 42. Frankel, 151 Ind. 534; Abshire v. ^ Hunderlock v. Dundee Mortgage, Williamson, 149 Ind. 248 ; Lowe v. etc., Co., 88 Ind. 139; Garside v. Turpie, 147 Ind. 652 ; Lee v. Mozingo, Wolf, 135 Ind. 42; Abshire v. Will- 143 Ind. 667. iamson, 149 Ind. 248. ^ ^l^gliire v. Williamson, 149 Ind. "Higbee v. Bodeman, 129 Ind. 244; 248; Vordermark v. Wilkinson, 142 Walker V. Hill, 111 Ind. 223; Burk v. Ind. 142; O'Mara v.WabashR.Co.,150 Simonsoi), 104 Ind. 173; Munson v. Ind. 648; Gregory v. Smith, 139 Ind. Blake, 101 Ind. 78; State v. Board, 48; McKee v. Root, — Ind. — ,Octo- etc, 92 Ind. 133; Etter v. Anderson, ber 13, 1899. « Sections 163, 164, post. § 151 PARTIES TO THE APPEAL. 227 the appeal because of a defect of parties.' But where no objec- tion is made to the consideration or decision of an appeal, be- cause of a lack or defect of parties, until after final judgment has been pronounced, the court may refuse to grant a rehear- ing in order to dismiss the appeal." § 151. Motion to dismiss for defect of parties. — While the supreme or appellate court will dismiss an appeal on its own motion, where the proper parties are not brought before the court,' or it is otherwise apparent that the court has no juris- diction,* and a rule of court makes it the duty of the clerk to dismiss any vacation appeal which has been on the docket ninety days or more without an appearance by the appellee or any steps being taken to bring him into court, ° it is usually necessary to present the question whether the proper parties are before the court by a motion to dismiss the appeal. The presentation of such a motion must be preceded by service on the appellant of a written notice stating the general character of the motion and the time for hearing it.* This notice must be served ten days before the time for presenting the motion.' A copy of the proposed motion should be attached to the notice. The motion should recite the names of the omitted parties and should point out the lines and pages of the record' which will show that they are parties to the record and judg- ment bearing some relation to the appellant in which he has failed to join them on appeal. It should be accompanied by a brief containing such an argument or citation of authorities as will show that the omission comes within the rule requiring the dismissal of appeals for defects of parties.' The time when this motion shall be presented must be governed by circum- ' Midland E. Co. v. St. Clair, 144 Clair, 144 Ind. 363, 370; Hutts v. Ind. 363; Michigan Mutual, etc., Co. Martin, 131 Ind. 1. V. Frankel, 151 Ind. 534. « Wiesman v. Green, 20 Ind. App. ^Bennett v. Seibert, 10 Ind. App. 699. 369, 382. 6 Rule 36 Sup. Ct. ' Big Four, etc., Assn. v. Olcott, 146 " Eule 15 Sup. Ct. Ind. 176 ; Gourley v. Embree, 137 Ind. 'Rule 7 Sup. Ct. 82, City of South Bend v. Thompson, a Rule 13 Sup. Ct. 19Ind. App. 19; Midland R. Co. V.St, ^ Rule 14 Sup. Ct. 228 APPELLATE PRACTICE. § 151 stances. Care should be taken to present it before the court has an opportunity to decide the case, but an advantage is sometimes gained by delaying the presentation of such a motion until after the period has expired within which the appellant might perfect his appeal or take a second appeal after its dismissal. If the dismissal of the appeal can be secured after the expiration of such time, the same advantage may often be gained as if the judgment were affirmed. CHAPTER 13. NOTICE OF APPEAL. j 152. Is essential to jurisdiction un- § 160. less waived. 153. Must be served under provis- 161. ions of the statute. 154. Notice below in vacation ap- 162. peals. 163. 155. Notice above in vacation ap- 164. peals. 165. 156. Notice to co-parties. 157. Manner of serving and prov- 166. ing notice. 158. Written notice required. 167. 159. Forms of notice and proof of service. 168. Time within which notice must be issued and served. Dismissal for failure to give notice. Notice by publication. Waiver of notice by appellee. Waiver of notice by co-party. Prayer for appeal sufficient no- tice in term appeals. Notice in case party to the judgment dies. Notice of steps in conduct of the appeal. Notice of appeal in criminal cases. § 152. Is essential to jurisdiction unless waived. — A court will not decide a controversy without notice to the parties, either actual or constructive, since notice of some kind is es- sential to constitute due process of law.' Where an appeal is allowed by an order of court, made at the term at which the judgment appealed from is pronounced, the proceedings on appeal are deemed a mere continuation of the action in the trial court, and no formal notice of the appeal need be given to persons who were properly before the trial court, since they are bound to know of all the orders and rulings made in the case until its final determination. But in all cases where an appeal is taken after the close of the term, the statutes provid- ing for taking appeals imperatively require that notice shall ' Elliott's App. Proc, (229) ) 143, 173. 230 APPELLATE PRACTICE. § 152 be given both in civil ' and in criminal cases,' as one of the essential steps in perfecting the appeal. This notice must be served, not only on the adverse parties," but on all parties to the judgment who, like the appellant, are interested in overthrow- ing it.* Notice to all the other parties whose interests might be af- fected by the appeal is jurisdictional," and the supreme or ap- pellate court will examine the entire record in order to ascer- tain who are necessary parties to the appeal; and if any such, parties are not properly brought into court the appeal will be dismissed. ° Of course, a party who is entitled to notice can waive his right thereto by voluntarily appearing and submitting to the jurisdiction of the court,' but no acts of one party can waive the service of notice on another party.' Rules for determining who are the necessary parties that must be notified have al- ready been given.' Parties are sometimes relieved from the consequences of a failure to give notice within the time re- quired by the statutes or rules of court," where the failure was due to accident or an excusable mistake, but even in such cases the notice itself is imperatively required and the court simply extends the time for giving it. Even where an appeal' is taken from an order appointing a receiver, notice to the ad- verse party is essential to the jurisdiction of the supreme court, unless such party was present when the appeal was taken," 'R. S. 1894, §652; acts 1899, p. 5, ^Abshire v. Williamson, 149 Ind. amending § 647, E. S. 1894. 248 ; Bozeman v. Cale, 139 Ind. 187. 'R. S. 1894, §1960. « Bozeman v. Cale, 139 Ind. 187; ' O'Mara v. Wabash E. Co. ,150 Ind. Abshire v. Williamson, 149 Ind. 248; 648 ; Abshire v. Williamson, 149 Ind. O'Mara v. Wabash R. Co., 150 Ind. 248; Cole v. Franks, 147 Ind. 281; 648; Michigan Mutual, etc., Co. v. John V. Farwell Co. v. Newman, 17 Frankel, 151 Ind. 534. Ind. App. 649. ' Sections 163, 164, post. * Michigan Mutual, etc., Co. v. 'Section 150, anie. Frankel, 151 Ind. 534 ; Lowe v. Turpie, ^ Sections 146, 149, ante. 147 Ind. 652; Shuman v. Collis, 144 ""Tate v. Hamlin, 149 Ind. 94; Bank Ind. 333 ; Midland E. Co. v. St. Clair, of Westfield v. Inman, 133 Ind. 287 ; 144 Ind. 363 ; Gregory v. Smith, 139 Hutts v. Martin, 131 Ind. 1 ; Smythe Ind. 48. V. Boswell, 117 Ind. 365. "Cole V. Franks, 147 Ind. 281. ^ 153 , NOTICE OF APPEAL. 231 although the statute providing for taking such appeals does not expressly provide for giving notice.' § 153. Must be served under provisions of the statute. — The legislature has authori'ty to prescribe the form of notice that shall be necessary to give a court jurisdiction over the person notified, and the manner of its service,' and the pro- visions of the statute as to giving notice must be strictly fol- lowed.^ Therefore a mere verbal notice of an appeal is not sufficient,' nor is a party bound by actual notice that an appeal has been taken,' where he is not served with the notice required by law. § 154. Notice below in vacation appeals. — The statute pro- vides for two kinds of notice to the appellees in vacation ap- peals, either of which may be given at the option of the appel- lant.' The first clause of the section cited provides that a va- cation appeal may be taken by the service of a notice in writ- ing on the adverse party or his attorney, and also on the clerk of the court in which the proceedings .were had, stating the appeal from the judgment or some specific part thereof.' A rule of court' requires that the transcript shall be filed in the clerk's office of the supreme court within sixty days after this notice is given or the appeal shall be deemed to have been abandoned; and it is held that the transcript may not be filed more than one year after final judgment was rendered in the court below.' This manner of serving notice, while a proper one and fully authorized by the statute," is not generally used; but where the appellees are numerous and widely scattered, and all are represented by the same attorneys, or where the appel- lees are non-residents and have resident attorneys," it is '■ R. S. 1894, § 1245. ' R. S. 1894, § 652. ' Elliott's App. Proc, § 173. ' Rule 2 Sup. Ct. ' Tate V. Hamlin, 149 Ind. 94; Hazle- 'Smythe v. Bqswell, 117 Ind. 365; ton V. DePriest, 143 Ind. 368. State v. Rufi, 6 Ind. App. 38 ; sections * R. S. 1894, § 490, 101, 107, ante. '^ Michigan Mutual, etc., Co. v. '"Johnson v. Stephenson, 104 Ind. "Frankel, 151 Ind. 584. 368 ; State v. Ruff, 6 Ind. App. 38. ' R. S. 1894, § 652. " Dougherty v. Brown,21 Ind. App. 232 APPELLATE PRACTICE. § 154 usually found best to serve the notices below under this stat- ute. Such notices may usually be served by the appellant or his attorney without expense, land may be proved by an accept- ance of service indorsed thereon, while notices issued by the clerk of the supreme court are usually placed in the hands of the sheriff for service, whose fees, if the parties are numerous, materially increase the costs of the appeal.^ And where a non- resident appellee has a resident attorney, there is no way of serving him with notice except by service of the notice on his attorney before the transcript is filed.* It will be observed that when notice is given below, personal service on the appellee may be dispensed with and the notice served on his attorney.' The reference is to the attorney of rec-' ord who appeared in the court below, and service on him is as good as service on the appellee himself, at least in the absence of knowledge on the part of the appellant that such an attor- ney has been discharged.' And it is doubtful whether an ap- pellee could defeat his adversary's right to serve notice in this manner by discharging his attorney after judgment and before the time for taking an appeal had expired.^ Where notice was properly served on the attorney who had represented sev- eral parties in the court below, and he signed an acceptance of notice, it was held that the fact that he placed words after his signature indicating that he accepted service only for one of the appellees did not change the appellants' rights as against all the parties for whom he appeared in the court below. ^ If the same appellee has two or more attorneys, no- tice of a proposed appeal may be served on any one of them.' But where several parties named as appellees were each repre- sented by a different attorney in the trial court, separate notices should be properly franied and served on the different attor- 115; Tate v. Hamlin, 149 Ind. 94; ^jjg 1394 §652. Shaefer v,. Nelson, 17 Ind. App. 489. *Eichardson v. Pate, 93 Ind. 423, 1 E. S. 1894, § 7801; Tate v. Hamlin, 430. 149 Ind. 94. ' Elliott's App. Proc, §177. ''Tate V. Hamlin, 149 Ind. 94, 106; « Richardson v. Pate, 93 Ind. 423, Dougherty v. Brown, 21 Ind. App. 430. 115. ' Elliott's App. Proc, §178. § 155 NOTICE OF APPEAL. 233 neys or on the parties themselves.' Whether the notice below is served on the party or on his attorney, a notice must also be served on the clerk of the trial court.* Where the appellant gives notice below, and fails for any reason to perfect his ap- peal by filing the transcript within sixty days afterward, he may still appeal within the time limited by law by filing his transcript and issuing notice from the court above.' § 155. Notice above in vacation appeals. — Vacation appeals may also be taken by procuring from the clerk of the court in which the proceedings were had a transcript of the record and proceedings in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the clerk of the supreme court, who shall indorse thereon the time of filing and issue a notice of the appeal to the appellee.* This notice shall be issued by the clerk to the parties named as appellees in the assignment of errors.' The notice provided for in this clause of the section quoted must be served on the appellee himself;* service of such a notice on his attorney is insuffi- cient.' By analogy to the rule which regulatesthe commence- ment of actions in the trial court' an appeal should not be deemed perfected until the appellant has not only filed the transcript but has issued notice to the adverse party.' But the supreme court has repeatedly declared that the filing of the transcript with a proper assignment of error thereon within the time limited for taking an appeal perfects the appeal with- out the service of notice on the appellees," and that the court 1 Elliott's App. Proc, § 178. ^ ^-R.S. 1894, § 316. «R. S. 1894. §650. 'Bank of Westfield v. Inman, 133 'Rule 2 Sup. Ct. Ind. 287 ; Holloran v. Midland R. Co., 'R. S. 1894, § 652. 129 Ind. 274; Lawrence v. Wood, 122 'Rule 6 Sup. Ct.; Henderson v. Ind. 452; Coburn v. "Whitaker, etc., Halliday, 10 Ind. 24. Co., 12 Ind. App. 340; Elliott's App' 'O'Mara v. Wabash R. Co., 150 Ind. Proc, § 128. 648; Tate v. Hamlin, 149 Ind. 94; i»Tate v. Hamlin, 149 Ind. 94 Hazleton v. De Priest, 143 Ind. 368. Wright v. Manns, 111 Ind. 422 ; John 'Burns' Supp. 1897, §652, is uncon- son v. Stephenson, 104 Ind. 368 stitutional : O'Mara v. Wabash R. Co., Harshman v. Armstrong, 43 Ind. 126 150 Ind. 648; Dougherty v. Brown, 21 Ind App. 115. 234 APPELLATE PRACTICE. § 155 may, ia a proper case, permit notice to be issued and served after the expiration of such time.' A rule of court requires that where a cause appealed in vaca- tion has been on the docket ninety days or more, and there is no appearance of the appellee, and no steps have been taken to bring him into court; or where a notice has been issued and proves ineffectual from any cause, and no steps are taken for more than ninety days after the issuance of such ineffectual notice to bring the appellee into court, the clerk shall enter an order dismissing the appeal.' Under this rule it is the imperative duty of an appellant to know whether or not his first notice has proved effectual, and if it has not, to cause an- other notice to issue within ninety days.' But where the first notice, though erroneous, was such as it had long been the common practice to give,' and where notice was given under a statute which was afterward declared to be invalid because of a defect in the title, ° it was held that the appellant's excuse for not complying with this rule was sufficient, and that the appeal should not be dismissed. Also, where notice was ordered and was not issued because of the fault of the clerk, who indicated by an indorsement on the transcript that a notice had been duly issued and served, the supreme court refused to dismiss the appeal.* If it is shown that the clerk's failure to issue notice was due to a direction given by the appellant, and there is no proof that notice was served below, and the appellee does not voluntarily appear, the appeal must be dismissed.' The court will look beyond the appellant's assignment of errors, and examine, the entire record to deter- mine who are necessary parties to the appeal, in passing on a 1 Tate V. Hamlin, 149 Ind. 94; Bank 648; Shaefer v. Nelson, 17 Ind. App. of Westfleld v. Inman, 133 Ind. 287; 489. Hutts V. Martin, 131 Ind. 1. See * Tate v. Hamlin, 149 Ind. 94. O'Mara v. Wabash E. Co., 150 Ind. ^ jjougherty v. Brown, 21 Ind. App. 648; Dougherty v. Brown, 21 Ind. 115 ; Daily v. Deinhart, — Ind. App. App. 115. — , 53 N. E. Rep. 1135. 2 Rule 36 Sup. Ct ; Cole v. Franks, " Bank of Westfleld v. Inman, 133 147 Ind. 281 ; John V. Farwell Co. v. Ind. 287. Newman, 17 Ind. App. 649. 'Coburn v. Whitaker, etc., Co., 12 ^ O'Mara v. Wabash r1 Co., 150 Ind. Ind. App. 340. ^ 156 NOTICE OF APPEAL. " 235 motion to dismiss the appeal for lack of proper notice.' Of course the service of notice may be waived by voluntary ap- pearance. '^ § 156. Notice to co-parties. — We have seen that co-parties to the judgment who do not join in prosecuting the appeal must he made parties ' in vacation appeals, though it is not necessary to make them parties when the appeal is taken in term.' But where a part of several co-parties prosecute a vaca- tion appeal they must serve notice of the appeal upon all the other co-parties and file the proof thereof with the clerk of the supreme court.* Service of this notice is essential to the jurisdiction of the appellate tribunal/ unless the parties volun- tarily appear and submit to the jurisdiction of the court.' But even the voluntary appearance of a co-party after the expira- tion of the year allowed for taking an appeal will not supply an omission to give notice at the proper time so as to save the appeal from dismissal.* Where the failure to notify a co-party of an appeal is caused by accident or mistake, without any fault on appellant's part, the supreme court will extend the time for giving such notice.' There was formerly nothing in the statute authorizing notice to co-parties to be served on their attorneys, and it was held that personal notice must be served in such a case;" but a re- cent act provides that written notice of the appeal may be served on the co-parties or their attorneys of record, or if such 'Bozeman v. Cale, 139 Ind. 187; v. Smith, 139 Ind. 48; Anheuser, etc., Abshire v. Williamson, 149 Ind. 248. Assn. v. George, 14 Ind. App. 1 ; Crist '^ Section 163, posf. v. Wayne, etc., Assn., 151 Ind. 245; ' Section 146, ajife. McKee v. Root, —Ind.—, October 'Burns' Supp. 1897, §647Q!;Thomp- 13, 1899. son V. Connecticut, etc., Co., 139 Ind. ' Forsythe v. City of Hammond, 142 325; Lowe v. Turpie, 147 Ind. 652; Ind. 505; Pritchett v. McGaughey, 151 Anderson Glass Co. v. Brakeman, 20 Ind. 638; section 164, post. Ind. App. 226. 8 Holloran v. Midland R. Co., 129 =^Acts 1899, p. 5, amending §647, Ind. 274. K- S- 1894. 'Hutts V. Martin, 131 Ind. 1. "Michigan Mutual, etc., Co. v. ^'Tate v. Hamlin, 149 Ind. 94; Haz- Frankel, 151 Ind 534 ; Midland R. Co. leton v. DePriest, 143 Ind. 368. V. St, Clair, 144 Ind. 363, 370; Gregory 236 APPELLATE PRACTICE. § 157 co-parties are non-residents, and have no attorneys of record, notice may be given by publication.' The form of notice to co- parties and the manner of service are the same as is required to be given to adverse parties,^ except that it must distinctly show that they are served with notice as appellants and not as appellees.' Notice to co-parties is usually given after the tran- script is filed, but there is no reason why such notice should not be served before the transcript is ordered when the notices to appellees are served below.' The names in a notice to co- parties must correspond to the names of appellant's co-defend- ants in the court below as they appear in the record or the notice will be insufficient.' The rule which requires that no- tice shall be served on the adverse party within ninety days after the transcript is filed, or a second notice issued,* has no application to notices to appellant's co-parties, and an appeal may be perfected by giving a notice of the latter kind at any time before the expiration of the year allowed for taking an appeal,' unless the supreme court should discover the lack of parties, and dismiss the appeal for that cause before such time had expired. § 157. Manner of serving and proving notice. — Notices to co-parties and. notices to adverse parties are governed by the same rules as to service and proof of service.' Where notice of appeal is served below it is usually served by delivering a copy of the notice to the appellee or his attorney, and ob- taining from him a written acceptance of service indorsed on the notice.' If the party refuses to acknowledge service in writing, 1 Acts 1899, p. 5, amending § 647, R. v. Smith, 139 Ind. 48; Perry v. Bot- S. 1894. kin, 15 Ind. App. 83, ^ Thompson v. Connecticut, etc., Co., * Elliott's App. Proc, § 181. 139 Ind. 325, 329 ; Elliott's App. Proc, ^ Lilly v. Somerville, 142 Ind. 298. §181. « Rule 36 Sup. Ct. ^ Smith V. Wells, etc., Co., 144 Ind. ' Forsythe v. City of Hammond, 142 266; Shuman v. Collis, 144 Ind. 333; Ind. 505. Lee V. Mozingo, 143 Ind. 667; Vor- * Thompson v. Connecticut, etc., dermark v. Wilkinson, 142 Ind. 142; Co., 139 Ind. 325, 329; Elliott's App. Wood V. elites, 140 Ind. 472; Gregory Proc, § 181. s 'R. S. 1894, § 489. § 157 NOTICE OF APPEAL. 237 the notice may be served by reading it to him, and the service proved by the affidavit of the person making it.' If the appellee is a non-resident, having no resident attorney,^ so that notice must be given by publication,' the fact that due notice was given may be proved by the affidavit of the printer, his foreman or clerk, or any competent witness, to which must be attached a printed copy of the notice given.* If the service of notice is proved by the written admission of the party on whom it is made, or by affidavit, the affidavit or admission should state the time and place of service.' But where a party acknowl- edges service of notice, his omission to state the place of serv- ice will not make his acknowledgment insufficient to prove that he was duly served, since it will be presumed that service was made within the jurisdiction of the court.' Where notice issues from the court above, it is served by the sheriff of the supreme court,' or the sheriff of the county where the appellee lives,' in the same manner as any other process of the court, and proof of service is made by the sheriff's certifi- cate indorsed on the writ.' A county sheriff who served such a notice need not specify in his return that he was acting as deputy for the sheriff of the supreme court." Where notice is served below, proof of service and a copy of the notice should .be attached to the transcript and filed with it," though filing them as independent papers would doubtless be held sufficient. Where the notice is issued and filed after the transcript has been filed, the notice and proof must, of course, be filed as a separate instrument. Since it is essential to the maintenance of an appeal that notice to co-parties shall be actually served within the time allowed, for taking an appeal," and that a new notice shall be issued to the appellees within ninety days after the appeal is filed, in case the first notice proves ineffectual," ' R. S. 1894, §-489, subdivision 2. « R. S. 1894, § 7802. "■ R. S. 1894, § 663. 9 R. S. 1894, § 489, subdivision 1. ' Section 162, post. "> Ross v. Banta, 140 Ind.120. *R. S. 1894, § 489, subdivision 3. " Elliott's App. Proc, § 180. ' R. S. 1894, § 489. , '2 Section 156, ante. 'Elliott's App. Proc, § 179. " Section 155, ante. ' R. S. 1894, § 7801 ; Tate v. Hamlin, 149 Ind. 94, 99. 238. ' APPELLATE PRACTICE. § 158 it is the duty of the appellant's attorney to see that proper notices are issued and 'propel proofs of service are returned and filed in the clerk's office within the time allowed, and his fail- ure to do so may lead to a dismissal of his appeal. § 158. Written notice required. — ^The statutes providing for taking appeals upon notice to the adverse parties require that such notice shall be given in writing, both in civil' and in criminal cases, ^ and the civil code provides generally that where notice is required by that act, it must be in. writing.' It therefore follows, from the express language of the statute as well as upon principle,' that no other kind of notice except no- tice in writing can serve as process by which to bring the par- ties to an appeal into court. Of course, if a party appears, his appearance makes notice of any kind unnecessary,' and the question what is sufficient notice and proof of service be- comes immaterial. But when proof of service is necessary to establish the jurisdiction of the court, the notice and proof of service are a part of the record; and, as the notice is given out of court, nothing but a written notice and proof of service could be sufficient.* § 159. Forms of notice and proof of service. — The statute governing appeals in civil cases only requires the service of a notice in writing "stating the appeal from the judgment or some specific part thereof,'" and the statute governing appeals in criminal cases requires the service of a written notice "stat- ing that the appellant appeals to the supreme court from the judgment.'" The return of service is only required in general terms to be made by the return of the officer or the affidavit of the person making it.° The form of the notice and return of service, therefore, is immaterial, provided there is sufficient 'R. S. 1894, § 652. 'E. S. 1894, § 652; State v. Euff, 6 " B. S. 1894, § 1960. Ind. Aj^ip. 38. s E. S. 1894, § 490. « E. S. 1894, § 1960. * Elliott's App. Proc, § 172. 'E. S. 1894, § 489; rule 17 Sup. Ct.; 6 Sections 163, 164, post. aection 157, ante. « Elliott's App. Proc, § 172. § 159 NOTICE OF APPEAL. 239 substance about either to inform the party on whom the notice is served that an appeal has been taken, and to point out the judgment from which and the court to which the appeal is taken, and the name of the party taking it.' The title of the action and the name of the court to which the appeal is taken may be stated in the form of a title to the notice. The notices should be entitled in the same manner as the assign- ment of errors on appeal, though it is probably sufficient to entitle them after the manner of a pleading in the case in the trial court, and many notices bearing such a title have passed unquestioned. The notice should specify particularly the judg- ment, or part thereof, from which the appeal is taken, ^ and the return should state definitely the time and place of service. When an unofficial notice of appeal is served below as a pre- liminary step in taking the appeal, the following form may be used:' state of indiana. in the supreme (ob appellate) coukt. Morris Robinson, William Bakbr, Appellants, V. Jambs Mason, Martin Kinsley, Appellees. To James Mason: You are notified that I hereby appeal to the supreme (or appellate) court from the judgment remdered in favor of yourself and Martin Kinsley against Morris Robinson and myself on the 18th day of December, 1898, by the Mar- ion Circuit Court, in the cause entitled James Mason et al. v. Morris Robinson 6t 8'1- (Signed) William Bakeh. A similar notice should also be served on the other appellee and also on the appellant's co-party, such change being made m the body of the notice as is necessary to make it conform to the facts. Where the appellee acknowledges service of the no- tice, his acknowledgment may be in the following form: Indianapolis, Ind., Dec. 1, 1899. I hereby acknowledge service of the foregoing notice at the time and place above written. (Signed) James Mason. ' See R. S. 1894, | 319. » State v. Ruff, 6 Ind. App. 38. ' E. S. 1894, § 652. 240 APPELLATE PRACTICE. § 160 If the notice is served on the appellee's attorney, the follow- ing form of acknowledgment of service may be used: Indianapolis, Ind., Dec. 1, 1899. On behalf of the appellees, James Mason and Martin Kinsley, I hereby acknowledge service of the foregoing notice at the time and place above written. (Signed) Robert Fulton, Attorney for said Appellees. Where the party on whom the notice is served refuses to acknowledge the service, it may be proved by an affidavit of the party by whom it was made, in the following form: State of Indiana, County of Marion: Mark Nelson, being duly sworn, says that, as attorney (or agent) of William Baker, he served the within notice on Martin Kinsley, the appellee (or appel- lant) therein named, on the tenth day of December, 1899, by reading the same to him and delivering to him a correct copy thereof. (Signed) Mark Nelson. Subscribed and sworn to this 11th day of December, 1899. My commission expires January 1, 1901. John Lowehy, Notary Pubhc. Where a party desires that notices shall be issued above, a written request should be presented to the clerk in the follow- ing form: (Name of court and title of cause.) The clerk of the supreme court will please issue notices in the above enti- tled cause to the following appellees : James Mason, Brownstown, Hendricks county, Ind. Martin Kinsley, Kelso, Decatur county, Ind. (Signed) Lawrence Morgan, Attorney for Appellants. When such a request is presented at the time the transcript is filed, the clerk will issue a notice to the appellee and deliver it to the sheriff of the supreme court for service; or send it to the sheriff of the county where the party lives, or where he may be found, in case he does not live in Marion county. The sheriff to whom it is sent will serve the notice and make a return thereon in the same manner that he makes a return of the service of other writs.' § 160. Time within which notice must be issued and served, — Where notice to the appellees is given below, it should be 'The sherifi of the supreme court serves notices in Marion county only. § 160 NOTICE OF APPEAL. 241 given as the first step in perfecting the appeal,' and must be given before the expiration of the year allowed for taking an appeal.* The transcript must be filed within sixty days after notice is given or the appeal will be abandoned ; ° but the time for filing a transcript can not, in any case, extend beyond the year allowed for taking an appeal.^ When notice is issued from the court above it should be issued at the time the tran- script is filed, ° and must be issued within ninety days.'' And unless it has been served and properly returned within that time a second notice must be issued ' or the appeal will be dismissed. Notice to co-parties must be actually served before the expi- ration of the year allowed for taking an appeal,' or the appeal will be dismissed, and language has been frequently used by the court indicating that if this notice is not given before the case is taken up for consideration it will be dismissed, although the year for taking an appeal has not expired. But unless the appeal is actually dismissed before notice is given, it may be perfected by giving notice to co-parties at any time before the year for taking an appeal expires.' While the time for per- fecting an appeal by giving the required notice is expressly limited as above stated, the court has inherent power to relieve a party from the consequences of fraud on the part of his ad- versary, or mistake,'" or excusable neglect on his own part," and in a proper case permission is sometimes granted to serve notice of an appeal after the expiration of the time allowed for that purpose. '* But such permission will only be granted when •E. S. 1894, §652; Dougherty v. v. Frankel, 151 Ind. 534; Midland Brown, 21 Ind. App. 115. R. Co. v. St. Clair, 144 Ind. 363, 370; ^Dougherty V. Brown, 21 Ind. App. Gregory v. Smith, 139 Ind. 48; An- 115. heuser, etc., Assn. v. George, 14 Ind. ' Rule 2 Sup. Ct. App. 1. * Johnson v. Stephenson, 104 Ind. ^Forsythe v. City of Hammond, 368- 142 Ind. 505. * Section 155, ante. " Smythe v. Boswell, 117 Ind. 365. * Rule 36 Sup. Ct. " Hutts v. Martin, 131 Ind. 1 ; Bank ' Rule 86 Sup. Ct. of Westfield v. Inman, 133 Ind. 287 ; 'Holloran v. Midland E. Co., 129 Tate v. Hamlin, 149 Ind. 94. Ind. 274; Michigan Mutual, etc., Co. "Tate v. Hamlin, 149 Ind. 94; Bank 16— App. Practice. 242 APPELLATE PRACTICE. § 161 a particularly strong and clear case is presented, and it is shown that the failure to serve notice at the proper time was not due to any fault of the appellant/ and he has used proper diligence to supply the defect after it was discovered/ § 161. Dismissal for failure to give notice. — Except where notice is waived by the parties entitled thereto,' and where the failure to give notice is due to the fraud of the opposite party, or to an excusable mistake of the appellant,* the failure of the appellant to bring all necessary parties before the court in the proper manner will result in a dismissal of his appeal,' whether the party that he has failed to notify is a co-appellant or an appellee.* The service of notice and filing of proof thereof are as necessary to bring a party into the appellate tribunal, where he does not enter an appearance nor take any steps to contest the appeal,' as are the service and return of summons to give the trial court jurisdiction to pronounce a judgment by default.' § 162. Notice by publication. — Whenever it shall appear to the supreme court by satisfactory proof that the appellee,' or one or more co-parties of the appellant," in a cause appealed after the close of the term, is not a resident of this state, and that a notice of the appeal can not be served upon his or their attorney of record in the court below, the court may order that notice of the pendency of the appeal be given in some news- paper printed and published in this state for three weeks suc- cessively, after which, if proper notice has been given to all other parties, the court shall proceed in all respects as if the defendant had been served with process." An order for publi- of Westfleld v. Inman, 133 Ind. 287; zingo, 143 Ind. 667; Bozeman v. Cale, Hutts V. Martin, 181 Ind. 1; Dough- 139 Ind. 187; Gregory v. Smith, 139- erty v. Brown, 21 Ind. App. 115. Ind. 48. ' Smythe v. Boswell, 117 Ind. 365. ' Section 156, anU. '' O'Mara v. Wabash R. Co., 150 ' Sections 153, 154, ante. Ind. 648. ' Sections 153, 154, ante. ' Sections 163, 164, post. ' E. S. 1894, § 663. * Section 162, post. "Acts 1899, p. 5, amending § 647, 5 Michigan Mutual, etc., Co. v. R. S. 1894. Frankel, 151 Ind. 534; O'Mara v.Wa- " E. S. 1894, § 663; Acts 1899, p. 5,. bash R. Co., 150 Ind. 648; Abshire v. amending § 647, E. S. 1894. Williamson, 149 Ind. 248: Lee v. Mo- § 163 NOTICE OF APPEAL. 243 cation is only made upon an application in writing supported by affidavit showing that the facts exist which authorize notice to be given in this manner.' When a proper motion and affi- davit are presented, the order for publication is entered by the court as a matter of course, but it is only when the appellee or co-party is a non-resident and has no attorney of record that notice by publication is authorized.^ If a non-resident appellee has a resident attorney, the attorney may be served with notice of the appeal' as a preliminary step in taking it,* and an order for notice by publication will not for tha;t reason be granted.' The same is true in case a non-resident co-party has a resi- dent attorney.* Publication is made once each week for three successive' weeks, and is deemed complete upon the expiration of thirty days from the last publication, and the time for submitting the cause is calculated from the expiration of such time in the same manner as if personal service had been made at the time the thirty-day period expired. Proof of notice by publication, is made by filing with the clerk of the supreme court the affi- davit of the printer of the newspaper in which it was pub- lished, or of his foreman or clerk or other agent.' Where non-resident co-parties refuse to join in an appeal, the neces- sity for making them parties to the appeal may be avoided by taking an appeal in term;' and where notice to a co-party or an appellee' is necessary and he can be induced to acknowledge service of the notice, it is unnecessary to show the court whether he is a resident of the state or not. § 168. Waiver of notice by appellee. — Where an appeal is taken after the close of the term at which it was rendered, ' Rule 12 Sup. Ct. 5 Tate v. Hamlin, 149 Ind. 94, 106 ; ■'R. S. 1894, §663; Acta 1899, p. 5, Shaefer v. Nelson, 17 Ind. App. 489; amending § 647, R. S. 1894 ; rule 17 Dougherty v. Brown, 21 Ind. 115. Sup- Ct. ■ 6 Acts 1899, p. 5, amending § 647, ^Richardson v. Pate, 93 Ind. 423; E. S. 1894. Hurlhut V. Hurlbut, 12 Ind. 346. ' E. S. 1894, § 489. ' R. S. 1894, § 652. 8 Section 146, ante. 244 APPELLATE PRACTICE. § 164 service of notice on the adverse party is necessary to give the court jurisdiction over him.' But where the appellee volun- tarily appears and submits to the jurisdiction of the court, he waives the service of notice/ and the court has jurisdiction to pronounce a judgment on appeal that will bind him, although he has received no formal notice." A formal joinder in error,* or the filing of a brief on the merits, ° or entering an agreement in writing to submit the cause, ° is such an appearance as amounts to a waiver of any objections to the jurisdiction of the court over the party appearing. The criminal code expressly provides that the parties may waive notice of an appeal or enter in writing their appearance to such appeal.' And where the appellee files a brief in the supreme or appellate court or does any other act which, by the rules of that court,' is equivalent to entering an appearance, he will be held to have waived notice of the appeal.^ , § 164. Waiver of notice by co-party. — Notice to co-parties to a joint judgment of an appeal taken by other parties thereto is required in order that all may have an opportunity to join in the appeal, so that a single appeal may determine the whole case . '° But where such parties voluntarily come before the appel- late tribunal and decline to join in the appeal, the purpose for which notice is required is fully accomplished," and the court, having jurisdiction over all the parties,'^ will proceed t.o determine the appeal in the same manner as if notice had been issued and ' Abshire v Williamson, 149 Ind. « Rule 9 Sup. Ct. 248; section 152, ante. ' R. S. 1894, § 1960. ^Lowe V. Turpie, 147 Ind. 652; « Rule 9 ,Sup. Ct. Schmidt v.Wright, 88 Ind. 56; Elliott's ^ Summers v. State, 51 Ind. 201; App. Proc, § 175. Beck v. State, 72 Ind. 250. 'Schmidt v. Wright, 88 Ind. 56; '» Forsythe v.City of Hammond, 142 Hazleton v. DePriest, 143 Ind. 368. Ind. 505. * Lowe V. Turpie, 147 Ind. 652 ; rule " Forsythe v. City of Hammond, 142 8 Sup. Ct. Ind. 505. ^Loucheim V. Seeley, 151 Ind. 665; '^Michigan Mutual, etc., Co. v. Hazelton v. DePriest, 143 Ind. 368; Frankel, 151 Ind. 534; Abshire v. Schmidt v. Wright, 88 Ind. 56; rule Williamson, 149 Ind. 248; section 152, 9 Sup. Ct. ante. § 165 NOTICE OP APPEAL. 245 served.' A waiver of such notice, however, like the service of notice, must precede the expiration of the time for taking an appeal/ And where an appellant who had failed to give proper notice to his co-parties procured their written consent tq appear and decline to join in the appeal, and filed it in the clerk's office of the supreme court after the year allowed for taking an appeal had expired, the appeal was dismissed.' But the wa,iver of notice by a co-party and his declination to join in the ap- peal may be procured before the appeal is perfected, and filed with the transcript with like effect as if it were procured and filed immediately afterward.' Notice to a co-appellant, how- ever, can only be waived by his own voluntary submission to the jurisdiction of the court, and can not be waived by any act of the appellee in agreeing to submit the cause, or taking any steps in defending it.' The long line of cases which held- the contrary* have been overruled, and it is now held that the court has no jurisdiction to decide an appeal until all the par- ties to the judgment appealed from are brought before it in a proper manner.' § 165. Prayer for appeal sufficient notice in term appeals. — The statute which provides for taking an appeal at the term at which judgment was rendered ' does not provide for giving any notice of the appeal to adverse parties; and when the proper steps are taken to perfect an appeal under the provisions of this section, no notice of appeal is necessary.' The statute ' Forsythev. City of Hammond, 142 cases cited; Higbee v. Eodeman, 129 Ind. 505; Truman V.Scott, 72 Ind. 258; Ind. 244; Walker v. Hill, 111 Ind. Elliott's App. Proc, § 146. 223 ; Burk v. Simonson, 104 Ind. 173 ; ' Section 160, ante. Munson v. Blake, 101 Ind. 78. ^HoUoran V. Midland E. Co., 129 'Michigan Mutual, etc., Co. v. I°d. 274. Frankel, 151 Ind. 534; Crist v. * Pritchett V. McGaughey, 151 Ind. Wayne, etc., Assn., 151 Ind. 245; "^^- Vordermark v. Wilkinson, 142 Ind, 'Michigan Mutual, etc., Co. v. 142; Gregory v. Smith, 139 Ind. 48. Frankel, 151 Ind. 534; Midland E. « E. S. 1894, § 650. Co. V. St. Clair, 144 Ind. 363; Abshire ^Holloran v. Midland E. Co., 129 V. Williamson, 149 Ind. 248; Lowe v. Ind. 274; Hays v. Wilstach, 101 Ind. Turpie, 147 Ind. 652. lOO; Conaway v. Ascherman, 94 Ind. 'Elliott's App. Proc, §145, and 187; Easter v. Acklemire, 81 Ind. 163. 246 ■ APPELLATE PRACTICE. § 166 also expressly provides that it shall not be necessary to serve notice of the appeal on co-parties who do not join therein when a term appeal is taken/ though this provision does not apply to vacation appeals/ Such an appeal is deemed a mere con- tinuation of the proceeding below, and the order of court granting an appeal is deemed sufficient notice to all parties that an appeal has been taken. But in order that notice may be dispensed with, it is necessary that the appeal shall be per- fected within the time allowed by the statute and the order of court, and where the bond is not filed within the time allowed,' or the transcript is not filed within sixty days after the filing of the bond,* the appeal must be deemed a vacation appeal,' and the same notice is necessary as in other vacation appeal s.° § 166. Notice in case party to the judgment dies. — In case of the death of any or all of the parties to a judgment before an appeal is taken, an appeal may be taken by and notice of the appeal served upon the persons in whose favor and against whom the action might have been revived, if death had oc- curred before judgment ; ' that is, upon the administrator or executor of a deceased party, if a personal judgment was recov- ered,' or his heirs if the judgment concerns title to real estate.' If the judgraent appealed from partakes of both characters, notice of the appeal should be , served on both the heirs and administrator." If the party who recovered judgment is the one that dies, notice must be served on his heirs or personal representatives, as the case may be," and a failure to' serve them with notice will cause a dismissal. An appeal taken in 1 Burns' Supp. 1897, §§ 647a, 6476; «McKinney v. Hartman, 143 Ind. Thompson v. Connecticut, etc., Ins. 224. Co., 139 Ind' 325; Lowe v. Turpie, 147 ^R. S. 1894, §651. Ind.652; Anderson Glass Co. V. Brake- ^Michigan Mutual, etc., Co. v. man, 20 Ind. App. 226. Frankel, 151 Ind. 534; Holloran v. ''Shuman v. Collis, 144 Ind. 333; Midland E. Co., 129 Ind. 274. Smith V. Wells, etc., Co., 144 Ind. 'E. S. 1894, §648. 266; Denke- Walter v. Loeper, 142 » Branham v. Johnson, 62 Ind. 259. Ind. 657. 'Vail v. Lindsay, 67 Ind. 528. 'Michigan Mutual, etc., Co. v. " Benoit v. Schneider, 39 Ind. 591. Frankel, 151 Ind. 534; Holloran v. " Doble v. Brown, 20 Ind. App. 12. Midland E. Co., 129 Ind. 274. § 167 NOTICE OP APPEAL. 247 the name of a deceased party,' or in which a deceased party is named as appellee, is an absolute nullity and will be dismissed.^ If death occurs after an appeal has been perfected, the names of the proper parties may be substituted for the name of the deceased party, either upon notice or by consent,' and the cause may proceed. When the substitution is made on notice, the notice must be in writing,* and must be served ten days before the motion to substitute is made.^ The death of a party after submission of a cause has no effect on the appeal, but the court will render judgment as of the term at which the sub- mission was made without any change of parties.^ If the cause of action is one that does not survive, of course the death of the plaintiff will cause an appeal taken by him to abate, and there can be no substitution of parties.' § 167. Notice of steps in conduct of the appeal. — Notice of the ordinary steps in the conduct of an appeal is not required if such steps are taken at the time prescribed by the statute or rules of court. Thus, cross-errors may be assigned within sixty days after the cause is submitted,' or a writ of certiorari to correct the record may be obtained before submission,' or a petition for rehearing filed within sixty days after judgment is pronounced," without notice to the opposite party. But where leave to file cross-errors after the expiration of the time allowed is applied for," or an oral argument is obtained,'^ or a writ of dertiorari is applied for after the cause has been sub- mitted," notice is required. And notice must be given of all other motions except such as are filed in open court on the call of the docket." Under the present practice of the court, the latter provision is practically construed to mean that notice must be given of any motion made in the absence of the oppo- site party, unless he shall expressly waive notice by a written indorsement on the motion. If either party desires the im- ' Section 145, ante. App. — , 53 N. E. Eep. 1076, 1077. Section 145, ante. ' Elliott's App. Proc, § 167. 'R. S. 1894, § 649; Hahn v. Behr- ^u^ie 5 Sup.Xlt. man, 73 Ind. 120. s Rule 34 Sup. Ct. Rule 15 Sup. Ct. 10 Rule 29 Sup. Ct. I Rile 7 Sup. Ct. " Rule 5 Sup. Ot. •^ R. S. 1894, § 675 ; Gas Light, etc., '^ Rule 27 Sup. Ct. Co V. City ol New Albany, 139 Ind. '^ Rule 34 Sup. Ot. b60; WiUard v. Albertson, Ind. "Rule 15 Sup. Ct. 248 APPELLATE PRACTICE. § 168 mediate submission of an appeal in a habeas corpus case, he must serve three days' notice of his intended motion to submit,' But in all other cases where motions are presented to the su- preme or appellate court, ten days' notice is required.* The notice must state the general character of the motion, and the time appointed for hearing it.' It is always best to attach a copy of the proposed motion to the notice in such a way as to make it a part of the notice. Notice of a motion may be waived in writing or by appearing and resisting it, or consenting that it shall be sustained.' But where notice has not been given and is not shown to have been waived, the motion will be overruled. § 168. Notice of appeal in criminal cases. — An appeal by the state is taken by the service of a written notice on the clerk of the court where the judgment was rendered, stating that the appellant appeals to the supreme court from the judg- ment, and a similar notice must be served upon the defendant or his attorney. If neither can be found, an appeal may be taken by posting up such notice three weeks in the clerk's office in a conspicuous place.* The transcript must be filed within ninety days after this notice is given.' An appeal by the defendant is taken by the service of a similar notice on the prosecuting attorney,' but when the defendant appeals it is not necessary to serve a notice on the clerk.' There is no statute providing for term appeals in criminal cases,' and no appeal can be taken in such a case, without the service of the statutory notice." The notice must be served in compliance with the provisions of the statute;" but where the transcript was filed in the clerk's office, and notice of appeal served on the prosecuting attorney within ninety days afterward, and » Rule 20 Sup. Ct. ' R. S. 1894, § 1960. ' Rule 7 Sup. Ct. ' Darr v. State, 82 Ind. 11. » Rule 14 Sup. Ct. ' McLaughlin v. State, 66 Ind. 193. « Hoag V. Old People's, etc., Soc, 1 " Darr v. State, 82 Ind. 11 ; Buell v. Ind. App. 28. State, 69 Ind. 125 ; McLaughlin v. = E. S. 1894, § 1900. State, 66 Ind. 193. «E. S. 1894, § 1958. " State v. Quick, 73 Ind. 147. § 168 NOTICE OP APPEAL. 249 before the expiration of the time allowed for appealing, it was held that there had been a substantial compliance with the statute, and the court refused to dismiss the appeal.' The parties may waive such written notice,' or enter in writing their appearance to such appeal.^ 1 Beggs V. State, 122 Ind. 54 ; section ^R.S. 1894, § 1960. 108, ante. CHAPTER 14. APPEAL BOND. § 169. In what appeals a bond ia es- § 174. What is covered by the bond, sential. 176. Where bond should be filed 170. When appeal stays execution and by whom approved. without bond. 176. Forms of bonds in different ap- 171. Execution not stayed until peals. bond is actually filed. 177. Effect on the judgment ap- 172. Application for supersedeas. pealed from of filing an appeal 173. Time for filing appeal bond in bond. different kinds of appeals. § 169. In what appeals a bond is essential. — Filing an ap- peal bond is not a necessary part of taking a vacation appeal,' and a great many appeals have been entertained and decided in which no such bond was filed. Such an appeal may be per- fected by merely filing a transcript of the record, with a proper assignment of errors indorsed thereon, in the clerk's oflSice of the supreme court, and giving the proper notices.* But an appeal taken after the close of the term does not stay execution or other proceedings in the court below, unless a supersedeas is granted by the supreme court or some judge thereof,' and such an order can only be obtained by filing an appeal bond.* If the appellant does not fear an execution because he has noth- ing from which the amount of the judgment can be collected, or if he appeals from a judgment in his own favor, because it does not grant him all the relief to which he believes himself entitled, ' Ruschaupt V. Carpenter, 63 Ind. ' R. S. 1894, § 653. =!59; Burt v. Hoettinger, 28 Ind. 214. ''Section 172, post. ■" R. S. 1894, § § 652, 658, 667 ; section 124, ante. (250) § 169 APPEAL BOND. 251 or is willing to pay the judgment rather than file a bond, he may take a vacation appeal without filing one. But the party who takes a term appeal is required to file an appeal bond' as one of the steps in perfecting his appeal/ and unless a proper bond is filed within the time allowed by the court, the term appeal must be deemed abandoned.' Unless the appeal is per- fected after such abandonment by giving the notices required in taking a vacation appeal,' it will be dismissed. ° After a party has failed to perfect a term appeal, however, he may file his transcript and perfect a vacation appeal by complying with the rules which govern such appeals.^ The statute which permits executors, administrators and guardians to have an appeal and stay of proceedings in the court below,' without filing an appeal bond,' forms an exception to the gen- eral rules governing appeals of all kinds. Filing an appeal bond is a necessary step in taking an appeal from a decision growing out of any matter connected with a decedent's estate,' and where ho appeal bond is filed, the appeal must be dis- missed;'" though it is held that the lack of a bond is a defect which may be waived by the appellee." While executors and .administrators may prosecute appeals from judgments against the estates which they represent without filing appeal bonds,'' where they appeal for their own benefit from a judgment favorable to the estate, an appeal bond is necessary. '^ Appeals from interlocutory orders are usually taken as term appeals," for which reason the filing of an appeal bond would ' R. S. 1894, § 650. 'R. S. 1894, § 2609. ■ ''Holloran v. Midland R. Co., 129 i^Webb v. Simpson, 105 Ind.327; Ind. 274; Wilson v. Bennett, 132 Ind. Rinehart v. Vail, 103 Ind. 159; Sew- 210; Ex parte Sweeney, 131 Ind. 81. ard v. Clark, 67 Ind. 289; Ten Brook ' McKinney v. Hartman, 143 Ind. v. Maxwell, 6 Ind. App. 353 ; section 224; Midland R. Co. v. Holloran, 14 97, a?i«e. Ind. App. 392; Sup. Council, etc., v. "Jones v. Henderson, 149 Ind. 458, Boyle, 15 Ind. App. 342. disapproving Ten Brook v. Maxwell, ' R. S. 1894, § 651. 5 Ind. App. 353. ^Michigan Mutual, etc., Co. v. ^'R. S.a894, §§ 657, 2612. Frankel, 151 Ind. 534. , ^^ Case v. Nelson, — Ind. App. — , " R. S. 1894, § 651. 62 N. E. Rep. 176 ; sections 9, 97, ante. 'R. S. 1894, § 657. "E. S. 1894, §659; section 92, ante. 'Section 170, posj. 252 APPELLATE PRACTICE. § 169 usually be a necessary part of taking such an appeal. But the statute expressly provides that an appeal of this kind shall not be granted until the appellant has filed an appeal bond as in other cases of appeals.' And even where an appeal is taken at the time from an order granting a temporary injunction made by the judge in vacation, an appeal bond must be filed before the appeal will be effectual.^ The time and manner of filing and approving an appeal bond when an appeal is taken from an interlocutory order are governed by the same rules which would apply to other appeals taken at the time that it was taken/ except that the bond must be actually filed before the expiration of the term at which the appellant is given the privilege of taking an appeal. The court has no authority to grant time for filing the bond after the expiration of the term.* No appeal bond is required in taking an appeal from an order refusing to appoint a receiver/ unless a supersedeas is applied for. But where , a receiver is appointed, and the appellant desires to retain possession of his property pend- ing an appeal from the order of appointment, ° he must file an appeal bond within ten days, conditioned for the due prosecu- tions of the appeal and the payment of all costs and damages that may accrue to any officer or person by reason thereof.' Fil- ing such a bond makes the owner, in effect, receiver of his own property pending the appeal, with absolute power to con- trol it, but accountable to the court for his exercise, of that power, in case the order appointing a receiver should be af- firmed. There is no statute authorizing or requiring the filing of an appeal bond in taking an appeal from the judgment in a crimi- nal case. There is a statute providing that the execution of a sentence imposing a fine and costs may be stayed by an order of the supreme court or a judge thereof.' And it might well 1 R. S. 1894, § 659. * R. S. 1894, § 1245 ; section 93, ante. 2 Miller v. Burket, 132 Ind. 469. " Wabash R. Co. v. Dykeman, 133 5 Miller v. Burket, 132 Ind. 469, 473 ; Ind. 56. R. S. 1894, § 659. ' R. S. 1894, § 1245. *Natcher v. Natcher, — Ind. — , « R. S. 1894, § 1961. This provision October 13, 1899. of the statute was declared unconsti- § 170 APPEAL BOND. 253 be expected that this power will not be exercised in any case until the payment for the fine and costs, in case the judgment shall be affirmed, has been secured by a sufficient bond. But it has long been the practice of the circuit courts to take ap- peal bonds upon granting appeals from judgments of that kind, and the practice is now regarded as aiuthority.' Where a stay of execution for the fine and costs is granted upon the filing of an appeal bond, the bond may be enforced against the sureties in case of a breach of its conditions.^ An appeal to the supreme court from a judgment of conviction does not stay the execution of the sentence except when ordered by that court in certain cases.' The supreme court has the undoubted right to postpone the execution of a death sentence for such a time as will enable the court to consider and pass upon defendant's appeal.' Were it otherwise, a judgment reversing the case might prove unavailing because the defendant had been hanged be- fore it was pronounced. But the provisions of the statute' as to suspending the execution of a sentence imposing a fine have been declared to be unconstitutional * in an opinion of the supreme court, in which that question was not directly pre- sented, and which, as to the point decided, has since been over- ruled.' § 170. When appeal stays execution without bond. — It is a general principle that no stay of execution or proceedings be- low may be had until an appeal bond is filed,' because a stay of proceedings without a bond might operate to deprive the ap- pellant of any security whatever. But because of the diffi- culty in obtaining sureties for trust estates, and of the fact tutional in an opinion which has since ' Everly v. State, 10 Ind App. 15. been overruled as to the point in judg- ' R. S. 1894, § 1961. ment. Butler v. State, 97 Ind. 373, * Parker v. State, 135 Ind. 534. overruled by Parker v. State, 135 Ind. * R. S. 1894, § 1961 . 534- ■ ' Butler v. State, 97 Ind. 373. 'Everly v. State, 10 Ind. App. 15; 'Parker v. State, 135 Ind. 534. Moore's Crim. Law, § 467; Gillett's ' R. S. 1894, § 659; Mitchell v. Greg- Crim. Law, § 1008; Elliott's App. cry, 94 Ind, 363. Proc, § 297. 254 APPELLATE PRACTICE. § 171 that fiduciaries are slow to risk their own property to secure the rights of the estates they represent, and because the funds of a trust estate are in the hands of the court, which may make such an order for their disposition as seems just and equitable, executors, administrators and guardians are permit- ted to have an appeal and stay of proceedings in a trial court without giving an appeal bond.' And because of the diflSculty experienced in finding persons who would become bondsmen for the state of Indiana in the prosecution of a just but un- popular action, it was provided by statute that in any civil action brought by the attorney-general on behalf of the state, any relief to which the state is or shall be entitled, may be ob- tained without filing any bond, either for costs or damages.'' The language of this statute is broad enough to cover the tak- ing of an appeal by the state in a civil action brought on its behalf by the attorney-general, and such an appeal could doubtless be maintained without filing an appeal bond. § 171. Execution not stayed until bond is actually filed. — The statute providing for issuing a supersedeas in a vacation appeal for the purpose of staying execution and proceedings in the court below provides that when such an order is made the court or judge making it shall direct that the appellant give bond to the appellee with condition as in term appeals.' The statute regulating the taking of term appeals provides that such an appeal shall operate as a stay of all further proceed- ings on the judgment upon a proper appeal bond being filed . by the appellant.' These provisions have been construed to mean that the' stay was not complete in either class of appeals until an appeal bond was actually filed,' and that after a term appeal had been granted and time given in which to file a bond, the appellee was entitled to an execution on the judg- ment upon demand before the bond was actually filed, and if the clerk refused to issue it, he could be compelled by mandate to do so.'" The court said in the case cited that in either kind ' K. S. 1894, §§ 657, 2612, * E. S. 1894, § 650. 2 Acts 1899, p. 219. = Mitchell v. Gregory, 94 Ind. 363. ' E. S. 1894, § 653. » Mitchell v. Gregory, 94 Ind. 363. § 172 APPEAL BOND. 255 of appeal, it is the bond which consummates the appellant's right to a stay of proceedings and ties the hands of the appel- lee, and it suggested that any other construction might deprive the appellee of any security whatever, since there is no limit as to the time in which the court may authorize an appeal bond to be filed after the expiration of the term.' Merely fil- ing a motion for a new trial does not affect the judgment plaintiff's right to issue execution at any time after the judg- ment is entered and signed.* § 172. Application for supersedeas. — An appeal taken after the close of the term does not stay execution or other proceed- ings in the court below, unless an order to that effect be granted by the supreme court in term, or any judge thereof in term or vacation, which shall be indorsed on the transcript.' Such an . order is usually termed a supersedeas, and it is the only authority by which execution or proceedings in the court be- low can be stayed pending an appeal not taken in term.' Al- though the statute requires that the order be granted by the court or some judge thereof, a supersedeas is usually granted as a matter of course upon the filing of a proper application and bond. We have seen that the assignment of errors is ap- pellant's pleading on appeal, in the absence of which the appel- late tribunal has no jurisdiction;' from which it necessarily follows that a supersedeas will not issue until the transcript and an assignment of errors have been filed. ° It is not neces- sary, however, that the appeal shall have been perfected by notice, or that the appellants' brief on the merits and abstract of the record shall have been filed, but the supersedeas will issue as soon as the transcript and assignment of errors are filed.' The application for a supersedeas must in all cases be ^ Mitchell V. Gregory, 94 Ind. 363. ^Hawkins v. McDougal, 126 Ind. ' Logan V. Suit, 152 Ind. 434. 544; section 124, ante. 'R.S. 1894, §653. "Henderson v. Halliday, 10 Ind. *June V. Payne, 107 Ind. 307; 24. Mitciiell V. Gregory,' 94 Ind. 363; 'Elliott's App. Proc, §388. Burk V. Howard, 15 Ind. 219. 256 APPELLATE PRACTICE. § 172 accompanied by a brief referring to the record by pages and lines, and pointing out the errors on which the appellant re- lies.' This brief, however, is only required to show that the appellant has appropriately saved the questions which he seeks to present by his appeal, and the court, by granting a super- sedeas, expresses no opinion on the merits of the appeal,^ but only determines that the appellant is entitled to a stay of pro- ceedings until the questions he has saved for review are de- cided. Briefs upon applications for supersedeas will not be received as briefs upon the final hearing,' and unless a proper brief on the merits is also filed by appellant within sixty days after submission, the appeal will be dismissed.' After a supersedeas has been granted, it will in no case be set aside except upon notice to the opposite party.' The court or judge granting the supersedeas shall at the time of making the order direct that the appellant shall give bond to the ap- pellee with condition as required when an appeal is taken during the term at which the judgment is rendered.' The set- tled construction of this statute makes the filing of a bond a condition precedent to the taking effect of the appeal.' Where an appeal is prayed during term, but is not perfected ymder the rules governing the ,taking of term appeals, it must be per- fected as a vacation appeal, and a supersedeas obtained and bond filed as in case of other vacation appeals, or execution will not be stayed.' If an appeal bond has been filed under ' Eule 33 Sup. Ct. ^Northern, etc., Co. v. Michigan, ''Northern, etc., R. Co. V. Michigan, etc., E. Co., 2 Ind. 670; Northern, etc., R. Co., 3 Ind. 8; Northern, etc., etc., R. Co. v. Michigan, etc., R. Co., R. Co. V. Michigan, etc., R. Co., 2 3 Ind. 8; rule 15 Sup. Ct. Ind. 670; Elliott's App. Proc, § 388. " R. S. 1894, § 653. « Rule 33 Sup. Ct. ; section 179, post. 'Mitchell v. Gregory, 94 Ind. 363; * Citizens' St. R. Co. v. Union Trust section 171, ante. Co., 19 Ind. App. 402; Island Coal ^McKinney v. Hartman, 143 Ind. Co. V. Clemmitt, 12 Ind. App. 206. 224. § 173 APPEAL BOND. 257 the order granting a term appeal it ceases to be effective as soon as the term appeal is abandoned/ and a new bond must be filed in order to stay proceedings. When a supersedeas has been granted and the proper bond filed and approved/ the clerk of the supreme court shall issue a certificate of that fact to the clerk of the court below," and'the supersedeas shall then oper- ate until the determination of the appeal unless otherwise ordered by the court or a judge thereof.' Executors, adminis- ■ trators and guardians may obtain a supersedeas on behalf of the estates they represent^ without giving an appeal bond.° If a number of parties appeal from judgments recovered against each of them severally, the act of one in procuring a super- sedeas and filing a bond to stay the judgment against himself will not operate in favor of his co-appella^ts, but the appellee may have execution against them.' § 173. Time for flling appeal bond in different kinds of ap- peals. — Bonds given to obtain a supersedeas in appeals taken after the close of a term should be filed within one year after judgment is rendered. There is no express provision of the stat- ute forbidding the court or judge thereof to grant a supersedeas after the close of the year allowed for taking an appeal,' where the appeal has been duly perfected within the year. But, so far as is known, no such an order has been granted when it was not applied for until after the time for taking an appeal had ex- pired. In term appeals the bond is only required to be filed within such time as the court shall direct,' and no limit is placed on the discretion of the court as to the time it shall allow'for filing the bond." But the bond must be filed within the time allowed by the court, whatever that may be," and un- 'McKinney v. Hartman, 143 Ind. 'Elliott's App. Proc, §390; Free- 224; Hadley v. Hill, 73 Ind. 442, 448. man on Executions, §32. ' Section 175, post. ' s r. §_ 1394^ § 653. ^E.S. 1894, §655. 'U.S. 1894, §650. *R. S. 1894, § 656. "Mitchell v. Gregory, 94 Ind. 363, ^Section 170, ante. 365. "R.S. 1894, §657. "Michigan Mutual, etc., Co. v. 17 — App. Practice. 258 APPELLATE PRACTICE. § 173 til the bond is actually filed, the appellee has a right to issue execution, or take any other steps to enforce the judgment.' Even, after the bond is filed in accordance with the order of court granting a term appeal, it ceases to be effective upon the expiration of sixty days, unless the appeal is perfected by fil- ing the transcript within that time.^ Appeals from interlocutory orders may not be granted until the appellant has filed an appeal bond, as in other cases of ap- peal.' This is construed to mean that the court may make an order granting an appeal at the time a decision appealed from is made, which shall become effective upon the filing of a bond as therein required, within the time allowed by the order for filing it.* But the time allowed for filing the bond can not extend beyond the close of the term at which the order appealed from was made, or if it was made in vacation, be- yond the close of the next term.' When an appeal is taken from an order appointing a receiver, and the appellant desires to retain possession of the property,* he must file an appeal bond within ten days after the order of appointment is made.* If he fails to file the bond within that time, the re- ceiver will retain possession of the property pending the appeal. Where an appeal is taken from any decision of the circuit court or judge thereof in vacation growing out of any matter connected with a decedent's estate, an appeal bond must be filed within ten days after the decision complained of is made,' unless for good cause shown the court to which the appeal is prayed shall direct such appeal to be granted on the filing of such bond within one year after the decision appealed from is made.' Where the appeal bond is not filed within ten days, Frankel, 151 Ind. 534; Holloran v. * Miller v. Burket, 132 Ind. 469. Midland E. Co., 129 Ind. 274. ^Natcher v. Natcher, — Ind. — , 1 Mitchell V. Gregory, 94 Ind. 363. October 31, 1899. ^ McKinney v. Hartman, 143 Ind. ^ Sections 93, 169, ante. 224; Supreme Council v. Boyle, 15 'R. S. 1894, §1245. Ind. App. 342; Midland R. Co. v. 'R. S. 1894, §2609; Acts 1899, p. Holloran, 14 Ind. App. 892. 897, amending section 2610, E. S. 1894. ' E. S. 1894, § 659. . ' Section 97, ante. § 174 APPEAL BOND. 259 and no order extending the time for filing it has been made, an attempt to appeal must prove ineffectual, and if the tran- script has been filed the appeal must be dismissed/ unless the appellee, by his acts or omissions, has waived his right to in- sist on a bond/ After the expiration of a year from the time such a decision is made, the court has no further authority to grant leave to file an appeal bond/ When an executor or ad- ministrator takes an appeal on behalf of the estate he repre- sents,* he is excused from the necessity of filing a bond/ § 174. What is covered by the bond. — The bond required in taking an appeal during the term at which the judgment ap- pealed from was rendered must be conditioned that the appel- lant will duly prosecute his appeal and abide by and pay the judgment and costs which may be rendered or affirmed against, him.* And in case an appeal is taken from a judgment for the recovery of real property in possession of the appellant, the bond must also be conditioned that the appellant shall pay all damages which may be sustained by the appellee for the mesne profits, waste or damage to the land during the pendency of the appeal.' If the party in possession of personal property appeals from a judgment for the recovery or return of suchi property or its value, then the appeal bond must be condi- tioned that if he deliver or return the property he will also pay the reasonable value of its use, and any damage it may sustain during the pendency of an appeal.* If a party who has taken a term appeal and filed a proper bond abandons his ap- peal, his bondsmen thereby become liable for damages only to the time of such abandonment.' The abandonment of the appeal 'Webb V. Simpson, 105 Ind. 327; *E. S. 1894, §2612. Rinehart v. Vail, 103 Ind. 159; Sew- « E. S. 1894, § 650. ard V. Clark, 67 Ind. 289 ; section 169, ' R. S. 1894, § 650. ""*«■ 'E. S. 1894, § 650. * Jones V. Henderson, 149 Ind. 458. 'McKinney v. Hartman, 143 Ind. 'Ten Brook v. Maxwell, 5 Ind. 224; Supreme Council v. Boyle, 15 ^5^- Ind. App. 342 ; Midland E. Co. v. Hol- * Section 169, ante. loran, 14 Ind. App. 392. 260 APPELLATE PRACTICE. § 174 is a breach of the condition that appellant will duly prosecute his appeal, and he and his bondsmen are liable for any dam- ages which the appellee may suffer by reason of the stay of proceedings up to the time that the appeal is abandoned.' But as execution may issue immediately upon the abandonment of a term appeal/ unless a supersedeas is obtained and a new bond given, the appellee is not entitled to any damages in an action on the bond given for an appeal in term by reason of a stay of execution after that time. And because the abandon- ment of the appeal prevents any judgment from being ren- dered or affirmed against the appellant by the court to which the appeal was taken, there can be no breach of the condition to abide by and pay such judgment.' If a party who has been granted a term appeal, and has filed a bond as required by the order of the court, neglects to file his transcript until more than sixty days after the bond is filed, the appellee should compel him to obtain a supersedeas and file a bond as in case of other vacation appeals, or should proceed to collect the judgment by execution, as if no appeal had been taken. A supersedeas bond must bear the same condition as is required in case a bond is given for a term ap- peal.' Of course the dismissal or abandonment of a vacation appeal would only be a breach of the condition to duly prose- cute the appeal, and not of the condition to abide by and pay any judgment which might be affirmed or rendered. Where a bond is given upon an appeal from an order appointing a receiver it must be conditioned for the due prosecution of such appeal and the payment of all costs or damages that may accrue to any officer or person by reason of the appellant's control over the property pending the appeal, and by reason of the appeal. ° The condition of the bond given upon taking 1 McKinney v. Hartman, 143 Ind. 224 ; Supreme Council v. Boyle, 15 224. Ind. App. 342 ; Midland R. Co. v. Hol- ^ McKinney v. Hartman, 143 Ind. loran, 14 Ind. App. 392. 224. ■'E. S. 1894, §653. 2 McKinney v. Hartman, 143 Ind. ^ E. S. 1894, § 1245. § 175 APPEAL BOND. 261 an appeal from a decision growing out of any matter connected with a decedent's estate must be that the appellant will dili- gently prosecute such appeal and pay the judgment which may be affirmed, and all costs, if costs be adjudged against him.' In appeals of this kind, the penalty of the bond must be double the sum in controversy, if an amount of money is in- volved, or a reasonable sum, to be designated by the clerk, if something else than money is in controversy.^ When such a bond is given, the statute by which it is required becomes a part of the bond and defines the obligation of the principal and surety. ° The statute which expressly cures all defects in any bond, recognizance, or written undertaking, taken by any ofKcer in the discharge of the duties of his office, arising from the want of form, or substance, or recital, or condition,' applies to defect- ive appeal bonds.' Under this statute it has been held that the omission by mistake of the name of an appellee from the appeal bond would not prevent him from joining in a suit on such bond.' Also that the omission to mention rents and mesne profits in an appeal bond, given for an appeal from a judgment for the recovery of real property, would not prevent the appellee from recovering such rents and profits as dam- ages in an action on the bond.' But only persons who sign the bond are bound thereby, and a defendant who did not join with his sureties in the execution of an appeal bond, is not liable in an action thereon for breach of its conditions.' § 175. Where bond should be filed and by whom approved. — ^The supersedeas bond given to secure a stay of proceedings in a vacation appeal and the sureties thereon may be approved 'R. S. 1894, § 2609. ^Shroyer v. Simons, 14 Ind. App. ' R. S. 1894, § 2609. 631. 'Elliott's App. Proc, § 356. 'Opp v. Ten Eyck,-99 Ind. 345. * R. S. 1894, § 1235. ' 8 Supreme Council, etc., v. Boyle, 15 'Stults V. Zahn, 117 Ind. 297; Opp Ind. App. 342. V. Ten Eyck, 99 Ind. 345; Railsback T. Greve, 58 Ind. 72. ■262 APPELLATE PRACTICE. § 175 either by the clerk of the supreme court or the clerk of the court below.' In practice they are most often approved by the clerk of the court below when the sureties live outside of Ma- rion county, because he has a better opportunity to know of the solvency and financial standing of the sureties offered. The bond should be filed with the clerk of the supreme court, who will thereupon issue to the clerk of the court below his certifi- cate that a stay of execution has been granted.^ But in term appeals the bond and sureties must be approved by the court,' and an approval by the clerk is unauthorized and without effect.' But the parties may waive a formal approval of the bond, and when a bond approved by the clerk has been acted upon without objection, and has answered all the purposes of an appeal bond, the obligors will not be permitted to escape lia- bility on the ground that it was not properly approved.' Where an appeal bond is filed and approved in open court be- fore the expiration of the term at which judgment is rendered, irregularities in the order granting time to file the bond will be disregarded;^ but if time is given beyond the term in which to file the bond, and it is not filed until after the close of the term, the order granting the appeal must fix the penalty of the bond and name the sureties.' If this is done, and a bond in the penalty named signed by the designated securities is filed within the time allowed by the order of court, it will be deemed to have been approved by the court.' The bond for a term ap- peal should be filed in open court if court is in session, but if filed in vacation it may be filed in the clerk's office of the court below.' The bond given for an appeal from an order ap- 1 R. S. 1894, § 654. " Wilson v. Bennett, 132 Ind. 210. ^ R. S. 1894, § 655. 'Michigan Mutual, etc., Co. v. ^R. S. 1894, § 654; McOloskey v. In- Frankel, 151 Ind. 534; Thompson v. dianapolis, etc., Union, 87 Ind. 20. Connecticut, etc., Ins. Co., 139 Ind. *Hain V. Greve, 41 Ind. 631, 534; 325; Elliott's App. Proc, § 246. McKinney V. Hartman, 143 Ind. 224, SHartlep v. Cole, 120 Ind. 247; 229; Elliott's App. Proc, § 247. Thompson v. Connecticut, etc., Co., s Small V. Kennedy, 12 Ind. App. 139 Ind. 325. 155; Buchanan v. Milligan, 125 Ind. 'Thompson v. Connecticut, etc., 332; Easter V. Acklemire,81 Ind. 163; Co., 139 Ind. 325; Hartlep v. Cole, Jones V. Droneberger, 23 Ind. 74. 120 Ind. 247. § 176 APPEAL BOND. 263 pointing a receiver must be in a penalty and with sureties to be approved by the court or by the judge thereof in vacation,' and must be filed with the clerk of the court below. The clerk has no authority to approve the bond for an appeal of this kind. The bond for an appeal from a decision growing out of a matter connected with a decedent's estate must be ap- proved by the clerk of the court below, who, if the controversy involves something else besides money, has authority to fix the penalty df the bond.° If money is in controversy, the pen- alty must be double the amount involved.' Bonds given for this purpose must be filed with the clerk who approves them. § 176. rorms of bonds in different appeals. — A single blank form of appeal bond is in general use for all appeals, which is filled out to answer the purpose of an appeal of any kind. The provisions of the curative statute,' that no bond of this character* shall be void for want of form,' or substance, or recital, or condition, nor the principal or surety be discharged for such cause, makes it an easy matter to prepare an effective bond, provided the cause in which, and the judgment from which, the appeal is taken are specified, the penalty is named, and the bond is properly signed. It is a familiar principle that no surety is bound for a greater penalty than is specified in his undertaking.^ And the curative statute does not operate to make liable any one who does not sign the bond,' even though he be the principal appellant. But it has the effect to cure an omission to name an appellee as an obligee in the bond,' or any other omission of the kind specified in the statute.^ But while a defective bond may be binding, it ' R. S. 1894, §§ 1238, 1245. ows v. State, 114 Ind. 537 ; Graeter v. ' R. S. 1894, § 2609. DeWolf, 112 Ind. 1. ^ Section 174, ante. 7 Supreme Council, etc., v. Boyle, 15 ' R. S. 1894, § 1235. Ind. App. 342. * Broden v. Thorpe Block, etc., « Shroyer v. Simons, 14 Ind. App. Assn., 20 Ind. App. 684; section 174, 631 ; section 174, ante. -««e. 9 E. S. 1894, §1285. 'Line v. State, 131 Ind. 468; Mead- 264 APPELLATE PKACTICE. § 176 is essential that a person seeking to enforce such a bond should know what constitutes a sufficient bond, for the statute only provides that in all actions on a defective bond, recognizance, or a written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance, or written undertaking were per- fect in all respects.' It is, therefore, necessary that a person should understand what is required to constitute a sufficient bond, in order that he may suggest any defects in a bond sued on, and recover accordingly. The following blank form of appeal bond is in common use: Know all men by these presents, that we are held and firmly bound unto in the penal sum of dollars, to the payment of which, well and truly to be made and done, we bind ourselves, our heirs, executors, adminis- trators and assigns, jointly and severally, firmly by these presents ; sealed with our seals, and dated this day of , 19 — . The condition of the above obligation is such that whereas, heretofore, to wit : On the day of , 19 — , the said in the court, re- covered a judgment against the said for the sum of dol- lars, in damages and costs of suit, etc., from which said judgment of said court, the said — — appealed to the supreme court of Indiana. Now if the said shall well and truly prosecute said appeal and abide by and pay the judgment and costs which may be rendered or affirmed against , and shall (hgre recite conditions), then the above obli- gation to be null and void ; otherwise to be and remain in full force and vir- tue in law. Seal. Seal. Seal. Approved 19 — . , Clerk. Where a bond is given for a term appeal, or an appeal from* the appointment of a receiver, it should be shown to have been approved by the court and not by the clerk. ^ The penalty of the bond must be filled in with the sum at which it is fixed by the statute, or by the judge or clerk having authority in that behalf.' If the appeal is taken from a judgment for the recovery of real ^ R. 8. 1894, § 1235. ^ Sections 174, 175, ante. " Section 175, ante. § 177 APPEAL BOND. 265 i property or the possession thereof by the party against whom the judgment for the recovery is rendered, then the bond should not only require that the appellant shall well and truly prose- cute said appeal and abide by and pay the judgment and the costs, etc., but should also provide that he "shall also pay all damages which may be sustained by said for the mesne profits, waste or damage to the land during the pen- dency of the appeal.'" If the appeal is taken from a judgment for the recovery or return of personal property, or for such property or its value, a condition should be inserted in the bond that the appellant "shall also deliver or return to the said the personal property, the return of which is ordered by said judgment, and shall also pay the reasonable value of its use and any damage it may sustain during the pendency of said appeal."* § 177. Effect on the judgment appealed from of filing an appeal bond. — The only effect which an appeal has on the judgment appealed from is to prevent the appellee from issuing execution thereon or taking any other steps to enforce collec- tion.' It does not in the least affect the validity or binding force of the judgment.' Neither a term appeal nor an appeal in which a supersedeas is obtained gives the appellant any right to do an act which the decree appealed from forbade him to do.' And if the judgment executes itself, as in the case of a judgment disbarring an attorney,^ or partitioning a tract of real estate,' or quieting the plaintiff's title to a tract of land,' • R. S. 1894, § 650. "■ Waring v. Fletcher, 152 Ind. 620, ^ R. S. 1894, § 650. 630; Hawkins v. State, 126 Ind. 294; ^'Waring v. Fletcher, 152 Ind. 620, Central, etc., Telephone Co. v. State, 630, 632 ; Meyer v. State, 125 Ind. 335 ; 110 Ind. 203. Walker v. Heller, 73 Ind. 46 ; Burton « Walls v. Palmer, 64 Ind. 493. See V. Burton, 28 Ind. 342 ; Nill v. Com- Waring v. Fletcher, 152 Ind. 620, 630, paret,16 Ind. 107 ; Elliott's App. Proc, 632. §391. 'Randies v. Randies, 67 Ind. 434. * Waring v. Fletcher, 152 Ind. 620, See Waring v. Fletcher, 152 Ind. 620, 630, 632; Mull v. McKnight, 67 Ind. 630, 632. 525; State V. Krug, 94Ind. 366; Buch- « Carver v. Canrer, 115 Ind. 539. anan v. Logansport, etc., R. Co., 71 Ind. 285; Line v. State, 131 Ind. 468. 266 APPELLATE PRACTICE. § 177 the judgment has the same force pending the appeal as if no appeal had been taken, and only ceases to be effective when it is actually reversed." Where a judgment is pronounced in a bastardy proceeding declaring the defendant to be the father of relatrix's child, the defendant may be required to pay or replevy the judgment or go to jail, notwithstanding the execu- tion and filing of an appeal bond.' An appeal where a super- sedeas is obtained does not preclude the parties from suing on the judgment,' or from prosecuting collateral or independent proceedings.* But where the appellant has possession of the property or articles in controversy, taking an appeal and pro- curing a supersedeas may prevent his adversary from issuing an execution or taking other steps to deprive him of posses- sion pending the appeal.' ' State V. Krug, 94 Ind. 366 ; Waring State v. Krug, 94 Ind. 366 ; Eandles V. Fletcher, 152 Ind. 620. v. Eandles, 67 Ind. 434; Burton v. 2 Hawley v. State, 69 Ind. 98; Deh- Burton, 28 Ind. 342; Barton v. Reeds, ler V. State, — Ind. App. — , 53 N. E. 20 Ind. 87; Waring v. Fletcher, 152 Eep. 850. Ind. 620, 630. ^Nill V. Comparet, 16 Ind. 107. * Elliott's App. Proc, §393; E. S. *Line v. State, 131 Ind. 468-470; 1894, §650. CHAPTER 15. SUBMISSION AND BRIEFS ADVANCEMENT. } 178. What is submission and when § 188. made. 189. 179. Appellant's brief within sixty days. 190. 180. Essentials of a brief. 181. Stating facts in the brief . 191. 182. Setting Out substance of plead- 192. ing or instruction. 183. Manner of presenting argu- 193. ment. 184. Only matters shown by the 194. record may be discussed. 195. 185. Citation of authorities. 196. 186. Supreme court library. 197. 187. Use and abuse of case law. Waiver of points not discussed. ^ SuflBcieney of supersedeas brief. Appellee's brief within ninety days. Filing additional briefs. Taking out papers to prepare briefs. When oral argument will be heard. Preparation for oral argument. Conduct of oral argument. Advancement of causes. Motion to advance. § 178. What is submission and when made. — The submis- sion of a cause in the supreme or appellate court consists in the entry of an order by the clerk that the cause be submitted for consideration by the court. Until submission is made, the court will not take up the appeal for consideration on its mer- its, though it may consider the question whether the appellant has so far neglected to take his appeal in proper form that it ought to be dismissed. All necessary steps to bring the par- ties to the judgment before the appellate tribunal must pre- cede submission, and from the date of submission the time al- lowed for doing all necessary acts in the prosecution and de- termination of the appeal is calculated. The date of submis- sion in the supreme and appellate courts corresponds in many particulars to the return day in the trial court, and fixes the time after which a cause is directly under the control of the court for determination. Since notice is given below in (267) 268 APPELLATE PRACTICE. § 178 criminal causes/ they are usually submitted for trial immedi- ately upon the filing of the transcript.^ But, though notice is also unnecessary in term appeals/ such appeals are not usu- ally submitted until thirty days after they are taken.* But appeals which are fully perfected may be submitted on call on the second day of the term/ or on any other day that the court shall determine in case the appeal is advanced.^ The statute ' provides generally for the submission of any appeal at the expiration of thirty days after it has been fully perfected by the service of notice or appearance of the appellee, unless the court, for cause, shall otherwise order. An order of sub- mission is made by the clerk as a matter of course at the expi- ration of thirty days from the time the appeal is perfected, which includes issuing and serving notice in cases where notice is necessary, unless some objection to its submission is made. In habeas corpus cases, however, the cause may be submitted on motion at any time after the appeal is perfected, provided three days' notice of the intended motion to submit has been given to the adverse party or his attorney.' Where a cause is submitted under the rules of court, it is essential that the ap- peal shall have been duly perfected, or the submission may be set aside, ° provided a seasonable application is made by the ap- pellee before he has done any act which amounts to a waiver of the question." The parties have a right to submit a cause immediately, by a written agreement filed with the clerk or indorsed on the transcript." Filing an agreement to submit constitutes an appearance,'^ and waives any question as to the jurisdiction of the court over the party making such agreement" and all objections to 1 Section 168, ante ' Eule 20 Sap. Ct. ^ E. S. 1894, § 1962 ; rales 19, 32 Sup. ' Burkam v. McElfresh, 88 Ind. 223 ; Ct. Johnson v. Miller, 43 Ind. 29 ; Heller ' Section 152, ante. v. Clark, 103 Ind. 591. * E. S. 1894, § 664. " Archey v. Knight, 61 Ind. 311. 5 Eule 16 Sup. Ct. " Eule 17 Sup. Ct. « Eule 16 Sup. Ct. ; section 196, post. " Eule 9 Sup. Ct. ' E. S. 1894, § 664. " Sections 163, 164, ante. § 179 SUBMISSION AND BRIEFS ADVANCEMENT. 269 mere informalities in the preparation of the appeal.' But an agreement to submit does not waive objections to the jurisdic- tion of the court because of a defect of parties/ nor does it waive the objection that the appeal was not perfected within the time allowed by law.' When the parties submit a cause by agreement, they are required to take notice that the time allowed for filing briefs and taking other steps in the cause dates from that time. But when the clerk enters an order of submission under the rules of court, he is required to mail notice of such submission to one, at least, of the attorneys whose names are appended to the assignment of errors, and to the dark of the court from which the appeal came.* Notice to the appellee or his attorneys is not required. § 179. Appellant's brief within sixty days. — We have seen that the appellant is required to file a brief in support of an application for a supersedeas,' and that briefs may be filed in support of special motions.* But the chief argument on the merits of a cause must be made by briefs; and the rules of court' require that the brief of appellant presenting such argu- ment shall be filed within sixty days after the cause is submit- ted, under penalty of a dismissal of the appeal.* The rule requiring that appellant's brief on the merits of the appeal shall be filed within sixty days after submission is strictly en- forced,' and a month seldom passes without one or more ap- peals being dismissed under this rule. But, as the dismissal is usually entered by the clerk as a matter of course', without any opinion by the judges, the printed reports mention very 1 State V. Board, 92 Ind. 133 ; Cooper ' Rule 21 Sup. Ct. ; section 21, ante. V. Cooper, 86 Ind. 75. s i{„ig ^l Sup. Ct. 'Michigan Mutual, etc., Co. v. ^Manns, etc., Co. v. Templeton, 149 Frankel, 151 Ind. 534; sections 148, Ind. 706; Leatherman v. Board, etc., 149, 161, ante. 148 Ind. 282; Myers v. City of Jefier- ' " Miller v. Carmichael, 98 Ind. 236 ; sonville, 144 Ind 567 ; Smith v. Wells, Day V. School City of Huntington, 78 etc., Co., 144 Ind. 266; Citizens', etc., ^"'l- 280. R. Co. V. Union, etc., Co., 19 Ind. *Rulel8Sup. Ct. App. 402; Johnson v. Crowder, 15 * Section 172, ante. Ind. App, 28. " fiule 14 Sup. Ct. 270 APPELLATE PRACTICE. § 179 few of these cases. It is only when something which purports to be a brief has been filed/ or when the clerk has overlooked the fact that the brief was not filed in time/ or where an attor- ney who believes that his case possesses exceptional features appeals from the clerk to the judges/ that the dismissal of an appeal for this cause is me'ntioned in the reports. In comput- ing the time for filing a brief the day on which submission is made is excluded, and the day on which the brief is filed is in- cluded as one of the sixty days allowed/ and if the sixtieth day falls on Sunday, it is excluded under the provisions of the statute,^ and the brief may be filed on the following day.° The fact that the appellant files his brief immediately after the expiration of the time allowed, and before the appeal is dismissed will not save his appeal.' This rule is made for the protection of the court in the orderly discharge of its duties, and even a written agreement by the parties that the cause shall not be dismissed for failure of appellants to file a brief within the time required by the rules of court will not save the appeal from dismissal,* for the rule is one that neither the clerk nor the parties by agreement can waive compliance with.' Where the attorneys for appellant are unable to file a brief within the time allowed, they should apply for an extension of time, setting up the reasons on which the application is based," and if these reasons are deemed sufficient, additional time will be granted." But where additional time is granted, a failure to file the brief until after the additional time has expired will 1 Citizens', etc., R. Co. V.Union, etc., 'Leatherman v. Board, etc., 148 Co., 19 Ind. App. 402. Ind. 282; Smith v. Wells, etc., Co., ' MannSj etc., Co. v. Templeton, 149 144 Ind. 266; Sagasser v. Wynn, 88 Ind. 706; Leatherman v. Board, etc., Ind. 226; Murray v. Williamson, 79 148 Ind. 282; Smith v. Wells, etc., Ind. 287. Co., 144 Ind. 266. ' Manns, etc., Co. v. Templeton, 149 ' Cline V. Gould, 17 Ind. App. 647; Ind. 706. Alexander v. Alexander, 9 Ind. App. ^ Manns, etc., Co. v. Templeton, 149 48; Smith v. Wells, etc., Co., 144 Ind. Ind. 706; Schulties v. Keiser, 95 Ind. 266. 159. ♦ Smith V. Wells, etc., Co., 144 Ind. " Smith v. Wells, etc., Co., 144 Ind. 266. 266 ; Cline v. Gould, 17 Ind. App. 647. * E. S. 1894, § 1304. " Cline v. Gould, 17 Ind. App. 647; « Hogue V. McClintock, 76 Ind. 205. Elliott's App. Proc, § 452. § 180 SUBMISSION AND BRIEFS ADVANCEMENT. 271 be followed by the same consequences as if the brief had orig- inally been filed too late.' Where a party has failed to apply for an extension of time, his appeal will seldom be reinstated, whatever excuse he may show for his failure to file the brief at the proper time.^ This brief must present all the questions relied on by ap- pellant to reverse the case, or they will be treated as waived.' Where the paper filed as a brief does not contain the essentials of a brief, it may be disregarded and the appeal dismissed or the judgment affirmed.* The brief filed with an application for a supersedeas will not serve the purpose of a brief on the merits by appellant, so as to prevent a dismissal of the appeal. ° Where cross-errors are assigned by the appellee, he takes the position of prosecuting an appeal,* and is required by a rule of court to file a brief within sixty days from the date of the cross- assignment, under penalty of having his cross-errors struck out.' This rule applies whether the cross-assignment is made within sixty days after subiiiission, or is made by leave of court and upon notice after that period has expired.* §180. Essentials of a brief. — A brief ought always to con- tain the following parts: 1. The title of the cause and the name of the court in which it is filed.' 2. A short and clear statement showing: First, the nature of the action; second, what the issues were; third, how the issues were decided, and what the judgment or decree was; fourth, the errors relied on for a reversal.'" 3. Such a statement of the facts disclosed by the record as will enable the court fully to understand the questions pre- ■ Smith V. Wells, etc., Co., 144 Ind. etc., E. Co. v. Union, etc., Co., 19 266. Ind. App. 402; Allen v. Northwest- ^Cline V. Gould, 17 Ind. App. 647; ern, etc., Co., 136 Ind. 608. Alexanderv.Alexander, 9Ind.App.48. ^ Section 189, post. ^ "Willard v. Albertson, — Ind. App. « Sections 139, 140, ante. — , 58 N. E. Eep. 1076; rule 22 Sup. ' Rule 21 Sup. Ct. Ct. ; section 188, post. ' Rule 5 Sup. Ct. » Louisville, etc., B. Co. v. Gran- ^ Rule 25 Sup. Ot. tham, 104 Ind. 353, 356; Citizens', " Rule 22 Sup. Ot. 272 APPELLATE PRACTICE. ^ § 180 sented for decision. So much of the record should be con- densed into a concise statement as will fully present every er- ror and exception relied on, with references to the pages and lines of the transcript where the facts stated are- found. And if the insufhciency of the evidence to sustain the verdict or finding in fact or law is assigned, the statement should contain a condensed recital of the evidence" in narrative form so as to present the substance clearly and concisely.' 4. Following this statement the brief should contain, under a separate heading of each error relied on, separately numbered propositions or points in support of the allegation that such error was' committed, each point being stated concisely and without argument or elaboration, together with the authorities relied on to support it.^ 5. A repetition of the statement of each point for decision in the order followed in the preliminary statement followed by an argument, in which th« party should endeavor to show that his contention is supported by reason, authority," and the princi- ples of law. Th« argument must be distinct from the brief, but must be bound with it.' 6. Each proposition on which an argument is based, and, so far as possible, each conclusion reached in the argument, should be supported by authority, if authorities to that, effect can b/e found. 7. The briei should be signed by the attorneys presenting it, either as attorneys for appellants or appellees generally,* or as attorneys for the particular persons they represent. All briefs must hie printed or type-written on white paper seven by nine inches in size, leaving a margin of at least one inch at the left side, and bound in book or pamphlet form.' Not less than eight copies of the brief should be filed, including one for the use of th-e opposite party .° The new rules of court indicate that a brief which contains a sufficient abstract of the record and a statement of the points relied on ' Rule 22 Sup. Ct. * Levi v. Bray, 12 Ind. App. 9; rule ^'Eule 22 Sup. Ct. ' 24 Sup. Ct. ' Rule 24 Sup. Ct. = Rule 25 Sup. Ct. 6 Rule 25 Sup. Ct. § 180 SUBMISSION AND BRIEFS ADVANCEMENT. 273 with authorities supporting them will be accepted as sufficient to call for a decision of those points although no argument is attempted. But unless the brief shows an attempt in good faith to furnish the court with some aid in determining what questions are involved and why the judgment of the court below should be reversed or affirmed, either by argument, the citation of authorities, or otherwise,' it will be disregarded, and the case disposed of as if no brief had been filed. ^ A naked assertion that the court did or did not err in its ruling' will be disregarded by the court unless the defect is clearly apparent from a mere statement,' as where a complaint in replevin fails to aver a demand, or no copy of a promissory note sued on was filed with the complaint and a demurrer to such pleading has been overruled. It may be of interest to notice what have been held not to be sufficient briefs. A paper which merely recited the specifi- cations for which a new trial might have been granted, and concluded with the statement that "the court rendered judg- ment for the plaintiff on the verdict of the jury, when, accord- ing to law, they should have set aside the verdict and granted a new trial. All of which is respectfully submitted," and was signed by the appellant's attorney, was held insufficient to answer the purpose of a brief .' So, also, was a paper reading as follows: "Appellant's brief. We are clearly of the opinion that the judgment of the court below ought to be reversed, and therefore demand that, it be done. Respectfully and seriously. "° A paper was also held insufficient to answer the purposes of a brief, which read: "Appellant can not in this cause discuss the reasons upon which the court below sustained the demurrer to the complaint, for the reason .that the court below did not announce the reasons. The only question is, is the appellant's complaint sufficient upon which to base his action? The ' Gardner V. Stover, 43 Ind.*356. hel v. Shirley, 131 Ind.362; Elliott's "Allen V. Northwestern, etc., Co., App. Proc, §444. 136 Ind. 608 ; Cobb v. Taylor, 133 Ind. « Tucker v. Sellers, 130 Ind. 514. ^^^- ^ Parker v. Hastings, 12 Ind. 654. ' Smith V. State, 140 Ind. 343 ; Bon- « Deford v. Urbain, 42 Ind. 476. 18 — App. Psactice. 274 APPELLATE PRACTICE. § 180 demurrer of course admits the facts stated as true.'" The same ruling was made as to a paper which read : "Upon the well- settled rule of 'volenti fit injuria' the court below erred in its rulings on the pleadings and instructions; and we insist that the plaintiff could not recover when he knew defendant's cattle had the Spanish fever at the time he took thehi to pasture and took them at his own risk."^ Also a paper which read: "It is insisted the consideration of the note failed, if any ever existed. Hence, the motion for a new trial should have been sustained. Particular attention is called to pages 5 and 6 of the bill of exceptions. The testimony of Mr. Bray fully sustains this view. The court clearly erred in the particulars mentioned and alleged in the motion for a new trial. "° The statement that "we think the cause was submitted and could not be withdrawn peremptorily" was held to call for no decision on the question.' The suflQciency of the complaint was held not to be presented by a pretended argument in the following words: "The suit was instituted by a non-resident corporation.- There is nothing to show a right to sue. The simple fact that it is alleged in the complaint is not sufficient. It should show by what right it sues. "° Merely copying the assignment of errors in the brief, or making an abstract of the record as copied in the transcript, has been held insufficient in many cases;^ and a mere general assertion that the court erred in a particular ruling has frequently been held insufficient.' In order to be sufficient, the brief must state the points relied on to procure a reversal of the case, with some argument, or the citation of some authorities.' A party must, at least,. ' Gardner V. Stover, 43 Ind. 356. Ind. 174; Loucheim v. Seeley, 151 2 Harrison v. Hedges, 60 Ind. 266. Ind. 665. « Bray v. Franklin, etc.Co., 68 Ind. 6. ' City of Anderson v. Neal, 88 Ind. « Smith V. State, 140 Ind. 343. 317 ; Pratt v. Allen, 95 Ind. 404 ; Tucker * Allen V. Northwestern, etc., Co., v. Sellers, 130 Ind. 514; Bonnel v. 136 Ind. 608. ' Shirley, 131 Ind. 362; Smith v. State, 8 Bennett v. State, 22 Ind. 147 ; Mil- 140 Ind. 343 ; Island Coal Co. v. Clem- likan v. State, 70 Ind. 283; Wilson v. mitt, 12 Ind. App. 206; Bartlett v. Holloway, 70 Ind. 407; McCann v. Burden, 11 Ind. App. 419; Baldwin v. Rodifer, 90Ind.602;Kasterv. Kaster, Threlkeld, 8 Ind. App. 312; Smith v. 93 Ind. 581; Arbnckle v. Biederman, McDaniel, 5 Ind. App. 581. 94 Ind. 168 ; Eobbins v. Magee, 96 * Loucheim v. Seeley, 151 Ind. 665, § 181 SUBMISSION AND BRIEFS ADVANCEMENT. 275 persuade the court that he has made an effort in good faith to prepare his brief in obedience to the rules of court and to present his case in such a way as to convince the judges that his contention is correct, or his brief will not be considered at all, and the case will be disposed of as if he had filed no brief, or had expressly waived the errors discussed. The appellee's answer brief should point out any omissions or inaccuracies in appellant's statement of the record, followed by a short and clear statement of the propositions relied on to meet the alleged errors and sustain the judgment or decree, or by which such errors are obviated. This should be followed by a statement of the points and authorities relied on similar to that required in other briefs.' This may be followed by an argument in support of the several propositions advanced. In discussing the points made by the appellant in his brief, the appellee should follow the same order that was followed by the appellant for convenience of the court in considering the arguments and authorities together. Matters discussed by the appellee, which were not touched on by the appellant, should be put in the first part of his argument before the discussion of the questions raised by appellant or at the end of the argument following, that discussion. § 181. Stating facts in the brief. — We have seen that the briefs must contain a concise and clear statement of the facts.^ It has been suggested that a regular chronological and method- ical history of the case should be given, including an abstract of the pleadings,' but it is not necessary that the statement of facts should cover any more of the case than is necessary to a ready and correct understanding of the questions involved in the appeal.* A clear and concise statement of the facts shown by the record, properly grouped in their relation to each other, is sometimes sufficient in itself to establish the contention of the party making it, and is always a great aid to his argument.' By a statement of the facts is not meant a rehearsal of the evi- ' Rule 23 Sup. Ct. * Eule 22 Sup. Ct. ' Section 180, ante. ^ See Elliott's App. Proc, § 441. 'Buskirk'sPrac, p. 325. 276 APPELLATE PKACTICE. § 182 dence from which those facts might be deduced;' nor should the party recite in detail all that happened in the course of the trial, but he should merely state as clearly and concisely as possible the essential facts out of which the questions in con- troversy arise. ^ If a statement of fact is made by counsel in a brief, and opposing counsel does not make any corrections or additions thereto in his brief it will be deemed by the court to be accurate.' Care should be taken to make the statement of facts as fair and impartial as if the relator had no interest in the case. Not only professional honor but his own professional interest should lead an attorney to be perfectly fair in such a statement, for any unfairness is readily detected by the judges, who have the record before them and opposing counsel to assist them, and if it is discovered that an attorney has been unfair in one particular, the court will distrust everything else in his brief. § 182. Setting out substance of pleading or instruction. — Where objections are urged against a pleading, the brief must state the substance of the pleading assailed and specify with particularity the defects which counsel assert to exist. Unless this is done rulings on demurrers or motions addressed to the pleadings will not be considered on appeal.' In referring to an instruction in his brief, counsel must specify the number of the instruction and give the pages and lines of the record where it appears, and must succinctly state the substance of the instruction, and the specific objections to it, where objections are urged; or, where the instruction is deemed correct, counsel must succinctly state the propositions on which they assert its accuracy. Where this is not done and counsel merely indicates to the court the page of the record on which an instruction may be found, with some general observations concerning it, all objections to the ruling of the court on such instruction 1 Elliott's App. Proc, §441. 136 Ind. 608; Harrison v. Hedges, 60 ^Elliott's App. Proc, §441. Ind. 266; Gardner v. Stover, 43 Ind. 3 Rule 22 Sup. Ot.; Milburn v. Phil- 356; Tucker v. Sellers, 130 Ind. 514; lips, 136 Ind. 680. Baldwin v. Threlkeld, 8 Ind. App. * Allen V. Northwestern, etc., Co., 312; Harness v. State, 143 Ind. 420. § 183 SUBMISSION AND BRIEFS ADVANCEMENT. 277 will be regarded as waived.' And a mere general assertion that a series of instructions given to the jury did not properly inform the jury as to the law of the case and did not enlighten, but tended to mislead them, will not induce the supreme court to consider the instructions criticised.^ In discussing questions arising on the admission or exclu- sion of evidence, counsel should refer to the particular testi- mony, and specify by pages and lines the part of the record where it appears, and should also state specifically the nature of the evidence and the objections thereto. Where this is not done, the court will decline to search through the record for the evidence,' and will disregard any questions as to its ad- missibility sought to be presented by the brief. In fact, it is a general rule, asserted by a great number of authorities, that where an error is not pointed out by reference to the pages and lines of the record by which it is disclosed, the court will not search the record to find it.^ § 183. Manner of presenting argument. — The order in which the arguments on the different questions involved in an appeal are_presented in a brief is a matter of importance, but must be determined by the facts of each case. A statement of the is- sues, the judgment, the alleged errors, and the facts should be presented first, followed by the points relied on and the au- thorities supporting them.^ But there is no fixed rule by which to determine the order in which these points shall be stated and in which they shall afterward be discussed. Any prelim- ^ Marshall V. Lewark, 117 Ind. 377; 140 Ind. 88; Memphis, etc., Co. v. Northwestern, etc., Co. v. Hazelett, Pikey, 142 Ind. 304 ; Siberry v. State, 105 Ind. 212, 219; La Eose v. Logans- 149 Ind. 684. port Nat'l Bank, 102 Ind. 382, 347; *State v. Winstandley, 151 Ind.495; Harness v. State, 143 Ind. 420. Siberry v. State, 149 Ind. 684 ; Burnett 'Powers V. State, 87 Ind. 144, 153; v. Milnes, 148 Ind. 230; Memphis, Smith V. McDaniel, 5 Ind. App. 581. etc., Co. v. Pikey, 142 Ind. 304; Har- ^ Louisville, etc., R. Co. v. Donne- ness v. State, 143 Ind. 420; May v. gan, 111 Ind. 179, 190 ; Harlan v. State, State, 140 Ind. 88 ; Harlan v. State, 134 Ind. 339; Skaggs v. City of Mar- 134 Ind. 339. tinsville, 140 Ind. 476; May v. State, ^ Section 181, ante. 278 APPELLATE PRACTICE. § 184 inary questions, such as an argument by an appellee to the effect that the questions which appellant discusses in his brief can not even be considered for any reason, are usually treated first. The argument on the merits, which follows, sometimes takes up the errors in chronological order, beginning with the rulings on the pleadings, and sometimes begins with what is deemed the most important question in the case, and takes up the minor questions only after that has been fully discussed. It will usually be found best to discuss separately each error assigned, and where a single assignment questions several rul- ings, to discuss separately each ruling to which an exception was saved. When this is done, care must be taken not only to establish, by argument and the citation of authorities, the propositions of law relied on, but also to show how they apply to the case in hand. But where a single question of law, such as the constitutionality of a statute, is presented by each ob- jection, the same question having been saved in several ways, it is often better simply to state that fact, frankly admitting that if the one question is decided against you, none of your objections can be of any avail, and then to argue only the single question. Care should be taken in such a case, however, to discuss each of the errors relied on, so far as to show that each would require the disposition which you desire to be made of the case if the single question presented is decided in your favor. Unless this is done, a party might be held to have waived the exceptions taken,' and the court might decline to consider the question of law presented. The appellee should adopt the same order of discussion that was followed by the appellant, so far as he treats of the questions which the appellant has discussed. § 184. Only matters shown by the record may be discussed. — Appeals are tried solely by the record,^ which imports abso- lute verity,' and furnishes the sole means by which the appellate tribunal can know what was done in the trial of the cause be- ' Section 188, post. ' Section 4, ante; 208, post. ^Elliott's App. Proc, §186. § 185 SUBMISSION AND BRIEFS ADVANCEMENT. 279 • low.' It follows that the discussion of counsel must be lim- ited to matters which are shown by the record as recited in the transcript of the appeal. Any assertions of counsel which are not borne out by the record must be disregarded.^ It must be made clearly to appear from the face of the record that an error was committed, and that the appellant was probably injured thereby/ and the error must be definitely pointed out by the party complaining of it.* The record must not only disclose that an erroneous ruling was actually made and an exception saved, but the place where the ruling may be found must be pointed out in appellant's brief.' For, unless this is done, the court will not consider the supposed errors discussed, but will presume that they were not committed. The argu- ment of counsel, in order to insure consideration by the court, should be characterized by perspicuity and conciseness; though, "when the argument is pertinent and weighty, it can not be too extended."^ § 185. Citation of authorities. — The courts do not sit to make law but to declare what the law already is. In order that they may do this intelligently, it is necessary that they should be fully informed as to what the law has already been determined to be. It is, therefore, both proper and necessary that a brief should cite decisions which have already been made bearing on the points under -consideration.'' An argument supported by respectable authority is always more effective than one which is not so reinforced, and if there be decisions opposed to the position assumed by counsel, his neglect to cite them and distinguished them from the case in hand, or to show 'Elliott's App.Proc.,§ 186. Jnd. App. 312; Newman v. Railway, ' Grimes v. Grimes, 141 Irid. 480. etc., Assn., 15 Ind. App. 29. ' Head V. Doehleman, 148 Ind. 145 ; ^Siberry v. State, 149 Ind. 684; Campbell v. State, 148 Ind. 527 ; Bald- Harness v. State, 143 Ind. 420 ; Skaggs win V. Sutton, 148 Ind. 591. v. City of Martinsville, 140 Ind. 476; * Aydelott v. Ceilings, 144 Ind. 602 ; Harlan v. State, 134 Ind. 339 ; Bell v. McCutcheon V. McCutcheon, 141Ind. Pavey, 7 Ind. App. 19; Everly v. 697; Allen v. Gavin, 130 Ind. 190; State, 10 Ind. App. 15. Center School Township v. State, 20 « Parker v. Hastings, 12 Ind. 654. ' Elliott's App. Proc, § 447. 280 APPELLATE PRACTICE. § 185 that the principles therein declared are unsound, leaves his own case liable to defeat by the mere citation of such cases on the part of his adversary. It is possible, however, to weaken a case by indiscriminate citation.' One good, well-reasoned case, bearing directly upon the point in controversy, is better than a dozen cases which merely assert the proposition con- tended for without giving reasons, unless, indeed, it be a ques- tion which has been thoroughly settled by repeated decisions in our own state. No case from the courts of other states is authority in this state, except so far as the reasoning it con- tains or the respectable charac.ter of the judges forming the court which pronounced it may make it so. And cases in our own state are not infrequently overruled when they are badly reasoned, or are founded on unsound principles. Counsel should, therefore, as a general rule, cite no case as authority without having examined it.^ If an attorney can not obtain the original case, and only knows of it from a statement contained in a text-book, a digest, or some other case, that fact should be stated, and the real authority disclosed. The indiscriminate citation of cases with- out examination frequently has the effect of supplying author- ities in favor of the opposite side. When cases are cited, the titles of the cases must be given as well as the pages and volumes of the reports where they may be found.* This is required in order that a case may be found by means of its title, though a mistake should be made in the number of the volume or page of the report containing it.' If a text-book is cited, the edition referred to should be stated, together with the page or section where the statement relied on can be found. If the principle contended for has not been clearly decided by the courts of our own state, any well-reasoned cases from the courts of other states should be cited; arid even where there is no doubt as to a principle of law, decisions from other states are often of value to show that the case in hand is governed by - Section 187, post. ' Rule 22 Sup. Ct. Terkins' Prac, p. 325; Elliott's *Buskirk'sPrac., page 325; Elliott's App. Proc, § 447, note. App. Ftoc, § 447. § 186 SUBMISSION AND BRIEFS ADVANCEMENT. 281 such principle. Where an earlier decision in our own court is believed to be unsound, the reasoning of decisions from other states is often of great assistance in getting that case overruled. It is not easy to cite too many well-reasoned, pertinent decisions, but great care should be taken to cite no other kind. All the authorities cited in the entire brief should be grouped under brief statements of the propositions which they are believed to sustain in the first pages of the brief.' § 186. Supreme court library. — The law library of the state has been under the control of the supreme court for more than thirty years. ^ A considerable appropriation for the purchase of books has been expended each year under the direction of the court, which now has one of the best law libraries of its kind in the country. This library is open for the use of at- torneys throughout the state, and by means of it the attorneys have access to almost all of the case law of the United States and England, and to the principal text-books in the English language. But no book belonging to the law library is per- mitted to be removed from the library-room, except for the pur- pose of oral argument, into the court-room or consultation- room.' And even when taken out for this purpose, it must be delivered to the court or returned to the library at the conclu- sion of the argument. Any violation of this rule will be treated as a contempt of court.' While this rule makes it necessary for a lawyer living outside of Indianapolis to visit that city in order to consult the books in the library, it insures persons who go to the library to consult books an opportunity of con- sulting any that belong to it. In finding cases in the reports it is necessary to rely on digests, encyclopedias, text-books and similar books of reference. After a case bearing on a point has been found, books of citations are of great value in finding later eases which have also decided the same point. The value of a digest depends largely on the user's familiarity with it, and his ability iio judge correctly under what heading a given proposi- ' Rule 22 Sup. Ct. 3 jj„jg 40 Sup. Ct. , ' E. S. 1894, § 1323. * Eule 40 Sup. a. 282 APPELLATE PRACTICE. § 187 tion would be placed. One who looks only under "appeal," for what has been digested under "supreme court," or who looks under "pleading" for what has been placed under the heading "practice," will fail to find what he is looking for. It is seldom or never safe to turn from a digest until two or three titles have been examined. § 187. Use and abuse of case law. — So much attention is given to case law that an attorney dare not neglect giving due attention to what the courts have already said on a proposition in hand, however clearly he may believe that proposition to be settled by the primary principles of law. If the court of this state, or any other state, has passed on a similar question and decided it in a party's favor, that fact alone will strengthen his argument; and if the question has been decided against him he should know that fact and be prepared to distinguish the case decided from his own, or to make a bold attack on the principles declared by it, or his adversary may defeat him by simply citing that case. To this end, digests must be freely used; but care should be taken not to devote a brief to the statement of settled principles of law and the citation of author- ities to sustain them without showing how those principles apply to the case in hand. It will be of but little use to cite the many cases in our own and other states which hold that a complaint to recover a debt must show that the debt is due if it is not shown that the complaint attacked by the brief does not directly or indirectly aver that fact. The mere statement of such a well-settled proposition would be sufficient without the citation of authorities to sustain it, but authorities might well be used to show that in other cases where the averments resembled those of the complaint under consideration the com- plaints had been held to come within this rule. It is some- times true that counsel can admit every proposition laid down by his adversary in an elaborate brief, and yet by a few well- chosen words can show that none of them apply to the point under discussion. In selecting authorities care should be taken to choose cases which really decide the propositions laid down § 188 SUBMISSION AND BRIEFS ADVANCEMENT. 283 in them, and to avoid those which merely state such proposi- tions by way of argument or illustration in the decision of some other question. When a case is cited it is admissible and highly proper to quote from it such statements of the court as bear directly on the argument, and where the facts will admit, to state so much of the case as will show that the statements quoted were part of the decision and not mere obiter dicta. § 188. Waiver of points not discussed. — It is an established rule of appellate practice that points not discussed by a party in his brief may be regarded as waived,' although the rulings were properly excepted to and were properly attacked by the assignment of errors,^ and that fact is pointed out in the brief." A brief must at least contain an attempt by argument, or the citation of authorities, to indicate wherein the ruling com- plained of is alleged to be erroneous, or the court will not be bound to consider the question whether it is or not.* This rule applies in criminal cases as well as in civil cases.' It properly has application to the first brief filed by a party ,^ and the court may decline to consider, at any subsequent stage of the appeal, questions not presented by the first brief.' The rules of court forbid a party to raise any question, by reply ' Hoover V. "Weesner, 147 Ind. 510; 180; Consumers', etc., Co. v. Hunt- Dunn V. Dunn, 149 Ind. 424 ; Guy v. singer, 14 Ind. App. 156 ; Gish v. Gish, Blue, 146 Ind. 629; Smith v. State, 7 Ind. App. 104; Mahoney v. Gano, 2 140 Ind. 343; Heltonville v. Fields, Ind. App. 107. 138 Ind. 58 ; Hamilton v. Henneman, * Pittsburgh, etc., E. Co. v. O'Brien, 20 Ind. App. 16; Shaw v. Ayers, 17 142 Ind. 218; Xenia Heal Estate Co. Ind. App. 614; Kluse v. Sparks, 10 v. Drook, 140 Ind. 259; Cobb v. Tay- Ind. App. 444. lor, 133 Ind. 605 ; Tucker v. Sellers, ^ Dunn V.Dunn, 129 Ind. 424; Lank- 130 Ind. 514; Chicago, etc., R. Co. v. lord V. State, 144 Ind. 428 ; Louisville, Hunter, 128 Ind. 213. etc., R. Co. V. Miller, 140 Ind. 685; i* Lankford v. State, 144 Ind. 428; Sparklin v. Wardens, 119 Ind. 535; Newport v. State, 140 Ind. 299; Nor- Western Union, etc., Co. v. Kilpat- ton v. State, 106 Ind. 163; Bybee v. rick, 97 Ind. 42; Ohio, etc., E. Co. v. State, 94 Ind. 443; Lindsey v. State, Nickless, 73 Ind. 382. 82 Ind. 7. ' Chicago, etc., R. Co. v. Hunter, 128 " Section 179, ante; section 190, post. I'nd. 213; Metzger v. Franklin Bank,. ' W. U. Tel. Co. v. Ferris, 103 Ind. 119 Ind. 359 ; Butt v, Butt, 118 Ind. 31 ; 91 ; Lewis v. Albertson, — Ind. App. Peoria, etc., R. Co. v. Flicker, 95 Ind. — , 53 N. E. Rep. 1071. 284 APPELLATE PRACTICE. § 189 brief, oral argument or petition for rehearing which is not contained in the preliminary statement of points in his first brief.' This rule, however, is made for the protection of the court, and only operates to excuse the court from considering questions which are not shown to have any material bearing on the rights of the parties. Notwithstanding the failure of counsel to present a sufficient argument in his first brief ,^ the court may still, in a proper case, consider and decide the ques- tions presented by the record, and may even go entirely out- side of the briefs of counsel for reasons on which to base a decision that will do justice to the parties.' Particularly is this true as to appellee's defense, and the court will not ignore any reasons it may see that should prevent a reversal of the judgment, although they were not mentioned in appellee's brief.* Where counsel entirely fails to present a question in the briefs filed on the original hearing, the court will not grant a rehearing in order that such question may be discussed and decided.' This rule also applies to criminal cases.* A party may, however, present additional authorities and argu- ments in support of the points properly made in the original briefs to aid his petition for a rehearing.' § 189. Insufficiency of supersedeas brief. — We have seen that the appellant must file with his application for a superse- deas a brief pointing out the pages and lines of the record which disclose the supposed error for which his appeal is taken,* and that he is reqiiired to file a brief discussing those errors within 1 Rule 21 Sup. Ct. Chapman v. Jones, 149 Ind. 434 ; State 'Maierv. Board, etc., 151 Ind. 197; v. Halter, 149 Ind. 292; Blough v. W. TJ. Tel. Co. V. Ferris, 103 Ind. 91. Parry, 144 Ind. 463; Manor v. Board, See Travelers' Ins. Co. v. Prairie S. etc., 137 Ind. 367; Jones v. Castor, 96 Tp., 151 Ind. 36. ' Ind. 307 ; Sunnyside, etc., Co. v. Reitz, ' Big Creek Stone Co. v. Seward, 144 14 Ind. App. 478; Louisville, etc., R. Ind. 205, 209; Haggart v. Stehlin, 137 Co. v. Berry, 9 Ind. 63. Rule 21 Sup. Ind. 43 ; see page 62. Travelers' Ins. Ct. Co. V. Prairie S. Tp., 151 Ind. 36. « Danenhoffer'v. State, 79 Ind. 75; * Travelers' Ins. Co. v. Prairie S. Siberry v. State, 149 Ind. 684. Tp., 151 Ind. 36 ; Martin v. Martin, 74 ' Louisville, etc., R. Co. v. Berry, 9 Ind. 207. Ind. App. 63, 71. = Siberry v. State, 149 Ind. 684; ^ ggction 172, ante. § 190 SUBMISSION AND BRIEFS ADVANCEMENT. 285 sixty days after the submission of his appeal.' The court formerly permitted a single brief to answer both of these pur- poses if it sufficiently pointed out the alleged errors and also contained an argument on the merits. But the rules of court now declare that briefs on applications for supersedeas will not be received as briefs on the final hearing.^ § 190. Appellee's brief within ninety days. — As was stated above/ when the appellee assigns cross-errors he is required to file a brief thereon within sixty days after the cross-assign- ment is made. This brief must be prepared in accordance with the rule for the preparation of appellant's brief.' His brief on the assignment of errors made by the appellant is required by a rule of court' to be filed within ninety days after the submis- sion of the cause, thus giving him thirty days after appellant's brief is filed in which to answer the points made in that brief. If the appellee shall fail to file a brief within the time specified, he shall not be permitted to file one except by special leave of court for cause shown. ^ The rule limiting the time for filing appellee's brief has not, in the past, been strictly enforced, and briefs filed by the appellee have usually been received and con- sidered if filed at any time before the cause was taken up for consideration by the judges. But the language of the rule as revised evinces a determination to require strict compliance with it. In order that the appellee may examine appellant's brief before filing his own, the opposing counsel is required to file a copy of his brief for the use of appellee's counsel,' and appellant is given fifteen days after appellee's brief is filed to reply to it.' The rules given for the preparation of briefs' ap- ply to appellee's brief," as well as to that of appellant. If the facts are correctly stated in appellant's brief, the appellee heed ' Section 179, ante. * Rule 23 Sup. Ct. "Eule 33 Sup. Ct. See generally, = Rule 21 Sup. Ct. Carriger v. Kennedy, 134 Ind. 107; « Rule 21 Sup. Ct. Ogle V. Ma'nlove, 133 Ind. 55 ; Citizens,' ' Rule 25 Sup. Ct. etc., R. Co. V. Union Trust Co., 19 « Rule 21 Sup. Ct. Ind. App. 402; Island Coal Co. v. ^ Sections 180, 188, ante. Clemmitt, 12 Ind. App. 206. "Rule 23 Sup. Ct. ' Section 179, ante. 286 APPELLATE PRACTICE. § 191 only say so, and proceed with a statement of the propositions relied on, his points and authorities, and his argument; but if the facts are incorrectly stated by appellant, attention should be called to that fact and the erroneous statements corrected;' for, unless this is done, the statement by appellant will be deemed by the court to be accurate.^ Any reasons of a general character why appellant can not succeed in his appeal, such as the fact that the statute on which his right to recover depends is unconstitutional, should usually be first presented in the brief. Any questions of this character should be fully presented, as the rule that an pmission to pre- sent a question amounts to a waiver of it' applies to the brief of appellee as well as to that filed by appellant. The questions discussed by appellant's counsel should then be taken up sepa- rately in regular order, and an attempt made to show by argu- ment or the citation of authorities, either that the legal princi- ples therein laid down are not correctly stated, or that such principles do not apply to the case in hand. The latter is more often the proper defense, since counsel do not dispute over the correct interpretation of legal principles nearly so often as they do over the application of those principles to the facts of a par- ticular case. A failure of appellee to discuss a point is not so apt to be fatal to his case as a similar failure by the appellant. The court indulges every reasonable presumption in favor of the correctness of the judgment below,' and will uphold that judgment on any reasonable ground that may be shown by the record, although the apj^ellee's counsel may have failed to sug- gest it in his brief .° But counsel for appellee owes to his client and the court the duty of filing a brief maintaining the correct- ness of the proceedings and judgment of the trial court. ^ § 191. Citing additional authorities. — The rule that points not presented in a party's original brief shall be considered waived is reasonable and necessary in order that the court and 1 Rule 23 Sup. Ct. Tp., 151 Ind. 36, 41 ; Jones v. Castor, 2 Rule 22 Sup. Ct. 96 Ind. 307 ; Martin v. Martin, 74 Ind. 8 Section 188, ante. 207. * Section 198, post. « Walls v. State, 140 Ind. 16, 24. * Travelers' Ins. Co. v. Prairie S. § 192 SUBMISSION AND BEIEFS ADVANCEMENT. 287 attorneys may be seasonably informed of the questions to be decided. It is also necessary, in order that the work of the court shall not be impeded, that there shall be a limit to the interchange of arguments by counsel. But after the points for discussion and decision have been clearly defined by the briefs, and the views of counsel on those points have been presented, the court can have no objection to being fully advised upon the law relating to each of such points. Therefore no limit is placed on the number of authorities which a party is permitted to cite in support of the different points of his case, as' outlined in the briefs first filed, nor to the number of papers 'which he may file for that purpose. But he must confine himself to the citation of authorities. No additional or supplemental briefs will be received from either party.' Where additional research, however, enables counsel to discover authorities not cited in his brief, he should not hesitate to present them to the court. § 192. Taking out papers to prepare briefs. — In order that counsel may prepare their briefs intelligently, with proper references to the record by pages and lines, ^ it is necessary that they should have access to the transcript and other papers in the case. The rules of court provide that parties shall be entitled to the possession of the transcript during the time limited for preparing and filing briefs upon the original hear- ing.' Possession of the transcript after that time has expired, without leave of court first obtained on written application, may be treated as a contempt of court.' Under the new rules, the papers are not even allowed to be taken out for the prepa- ration of a petition for rehearing, because it is assumed that if the questions for decision are properly presented by the orig- inal briefs and abstracts, the record will not be needed in order to present them again. Upon giving out papers, the clerk ex- acts a receipt which specifies the time for which counsel is privileged to keep them. Permission to retain the papers for a longer time than is ordinarily allowed may be obtained on proper application in writing and a showing of sufficient cause by affidavits filed with the application .= The rule on this subject was formerly ' Rule 21 Sup. Ct. 3 jiuig gp g„p ct. s Rule 30 Sup. Ct. ' Section 182, ante. * Rule 30 Sup. Ct. 288 APPELLATE PRACTICE. § 193 not very rigidly enforced, and many records have been with- held for a long time without any penalty being inflicted. But since the courts are so nearly up with their dockets the rule against retaining records for an unreasonable time has been enforced with greater strictness, and since it is not only the right but the duty of the court to enforce its rules,' a failure to comply with this rule may be visited by a severe penalty. In one case the court punished an appellant's disregard of repeated orders to return papers by affirming the judgment.* After a case has been decided, neither the record nor the opinion of the court shall be taken from the office of the clerk except by a judge of the court or by the official. reporter,' or on special leave of the court granted on proper application in writing and a showing of sufficient cause. The record of a decided case is sometimes permitted to be sent to the clerk of a circuit court to be used in the trial of another case, or for some other proper purpose, but attorneys are seldom or never per- mitted to take such a record directly from the ofiice of the clerk of the supreme court. Where an appeal is dismissed, the appellant is sometimes permitted to withdraw the transcript for use in taking a second appeal.* § 193. When oral argument will be heard. — An oral argu- ment is often of great assistance to the court in determining a case, and applications for oral arguments before the supreme , and appellate court, if seasonably made, are never refused. Much has been said in commendation of the practice of hear- ing oral arguments,' and it is undoubtedly true that a brief, clear and concise oral argument will give the court a better understanding of the point under discussion than can well be gained from a printed brief. But oral arguments are^heard , only on Wednesdays and Fridays, and as only one argument is heard in a day, an application for an oral argument is apt to delay the decision of an appeal. Until a cause has been > Smith V. State, 140 Ind. 340 ; Egan ^ yice v. Jones, 4 Ind. App. 426. V. Ohio, etc., E. Co., 138 Ind. 274; ' Eule 31 Sup. Ct. Citizens' St. E. Co. v. Union Trust * Eule 39 Sup. Ct. ; section 234, post. Co., 19 Ind. 402; Harrod v. State, — ^ Elliott's App. Proc, §453, and Ind. App. — , 53 N. E. Eep. 777. authorities cited. § 193 SUBMISSION AND BRIEFS ADVANCEMENT. 289 submitted; it is not before the court for consideration on its merits, and the court will, therefore, not hear an oral argu- ment. But upon the filing of a written application with the clerk after a cause is submitted, and before the expiration of the time allowed for preparing and filing briefs, the court will set it down for oral argument at a designated time to be fixed by the court. ^ Notice of the application is not required, but as soon as the cause has been set down for argument, the clerk is required to notify counsel representing the different parties to the appeal of the time fixed by the court for the argument. An oral argument is usually limited to one hour on each side, beginning at ten o'clock in the morning.^ But in cases where counsel request it in advance and show sufficient reason why an hour on each side is inadequate, a longer time is frequently granted. It was formerly the custom to grant an oral argu- ment at any time upon proper application before the case was actually decided; and the court has granted oral arguments in cases after decisions had been agreed on and opinions of the court actually written. But a rule of court recently adopted provides that unless an application for oral argument in a cause shall be made before the time for filing briefs has ex- pired, the court in its discretion will refuse the application.* But the court will order an oral argument in such cases as it deems to require argument, altiiiough it is not requested to do so.' While the rules of court are so liberal as to granting an oral argument on the merits of any cause, such arguments are very seldom hear'd on any other question that may arise in the conduct of the case such as questions relating to motions and collateral matters. Petitions for rehearing are considered without oral argument on the matters therein alleged, or on written or printed briefs,' but after a rehearing is granted, an oral argument may be heard on the merits of the cause in like ' Rule 27 Sup. Ot. * Rule 29 Sup. Ot. ; sections 241, 244, " Rale 28 Sup. Ot. post. ^ Rule 26 Sup. Ot. 19— App. Practice. 290 APPELLATE PRACTICE. § 194 manner as on the original hearing. The rules of court also forbid oral argument on an application for a writ of certiorari.^ § 194. Preparation for oral argument, — The provision that counsel applying for and obtaining leave to argue a cause orally should at once notify opposing counsel of the time fixed by the court for the argument has been omitted from the revised rules of court, and notice of the time set for oral argu- ment is given to both parties by the clerk. ^ Before the argu- ment is heard counsel must have filed their briefs, in which the points to be argued are concisely stated, each followed by the authorities relied on to support it, but without argument or elaboration.' The oral argument must be confined to the discussion of the propositions and authorities contained in this statement.* Briefs must be filed in like manner as if no oral argument had been obtained. ° < ( § 195. Conduct of oral argument. — Oral arguments are granted for the purpose of enlightening the court and not for the convenience of counsel; and after a party has applied for and obtained an oral argument, he has no further cpntrol over it. He may waive his own' right to take part in the argument by neglecting to make due preparation,^ or may absent himself from court on the day that the oral argument is to be heard. He may also, on proper application and for sufiicient cause, secure a postponement of the argument to a more convenient time; but if no postponement is secured, and opposing counsel makes due preparation and is present at the time fixed for hearing the argument, he may present his argument, although the person on whose application it was granted has filed an express written waiver of the right to an oral argument and does not attend court at that time. The appellant's counsel is usually permitted to speak for three-quarters of an hour, and the appellee's counsel for one hour, after which appellant's 1 Rule 34 Sup. Ct. = Elliott's App. Proc, § 456; rule 28 'Rule 26 Sup. Ct. Sup. Ot. » Rule 21 Sup. Ct. " See section 194, ante. * Rule 28 Sup. Ct. § 196 SUBMISSION AND BRIEFS ADVANCEMENT. 291 counsel is given fifteen minutes in which to close. Oral argu- ments usually begin at 10 o'clock in the morning on Wednes- days and Fridays. But where the questions involved are numerous and dijfficult, the time for argument is sometimes extended to an hour and one-half on each side or even longer.' Nothing may be discussed in the oral argument except the propositions and authorities in the statement of points in the briefs.^ Counsel are not permitted to read from written or printed briefs, and reading extended quotations from text- books or authorities is usually a waste of time. The chief ad- vantage of an oral argument is to narrow the controversy so that the judges may grasp the precise point or points on which the case turns and to enable the judges to get the opinions of counsel on each side as to what legal principles govern the case and why they are applicable. The points on which coun- sel rely should, therefore, be stated as clearly and concisely as possible, and the different propositions advanced should be argued briefly and tersely. Authorities may be freely referred to with a brief statement of what they hold, but the reading of quotations from authorities should be left to the judges when they consider the case on the briefs. Failure to discuss in the oral argument any point that is properly made in the party's brief is not a waiver of that point, but it will be fully consid- ered in determining the cause. ^ § 196. Advancement of causes. — The statute gives appeals from judgments in capital cases precedence over all others, and provides that all other criminal cases shall stand for trial im- mediately upon filing the transcript, subject only to such pre- cedence.* Criminal cases are accordingly distributed as soon as they are submitted, and are considered and decided as soon as briefs are filed,' without any formal order for their advance- ment. The same is true of habeas corpus cases. The law has a tender regard for the life and liberty of citizens and requires ' Rule 27 Sup. Ct. * R. S. 1894, § 1962. ' Eule 28 Sup. a. ^ jjuies 19, 37 Sup. Ct. ' Rule 28 Sup. Ot. 292 APPELLATE PRACTICE. § 196 that all questions concerning *them shall be decided without unnecessary delay; but the civil code provides that the court shall docket all appeals in the order in which the transcript is filed, and they shall be heard in the same order unless the court for good cause shown shall direct a different mode of hearing.^ This leaves it altogether to the discretion of the court whether any cause shall be heard out of its regular order. ^ The strict language of the statute is departed from so far that appeals are distributed for consideration in the order in which they were submitted instead of the order in which the tran- scripts were filed.' All causes that stand for final hearing must be determined in the order of their submission as nearly as may be done.* Under this rule the case that is first pre- pared for consideration will usually be first considered and decided. But the court has the undoubted authority to ad- vance an appeal for consideration over all others that were submitted before it/ and has occasionally exercised this au- thority ever since its organization/ though the published re- ports mei^tion very few of the instances in which applica- tions for advancement were either granted or refused. Since the advancement of one case involves the postponement of all others which it may displace, a cause can never be advanced merely by agreement of the parties.' Nor will the request of all parties to an appeal influence the court to ad- vance a civil cause in which no sufficient reason for advance- ment is shown.* The advancement of a civil cause is never a matter of right,' but is only granted by the court in the exer- cise of its discretion, because of the peculiar features of the case which seem to call for immediate consideration. The kind of civil cases usually advanced are those in which im- ' 1 E. S. 1894, § 665. v. Harlem, 20 Ind. App. 200 ; Elliott's 2 Parker v. State, 132 Ind. 419 j Stout App. Proc, § 462. V. Harlem, 20 Ind. App. 200; Elliott's "Buskirk's Prac, p. 333; Elliott's App. Proc, § 463. App. Proc, § 463. ^ Kule 32 Sup. Ct. ; Buakirk'a Prac, ' Stout v. Harlem, 20 Ind. App. 200; p. 332. Elliott's App. Proc, § 464. * Rule 32 Sup. Ct. « Stout v. Harlem, 20 Ind. App. 200. = Parker v. State, 132 Ind. 419 ; Stout ' Parker v. State, 132 Ind. 419 ; Stout V. Harlem, 20 Ind. App. 200. § 196 SUBMISSION AND BRIEFS ADVANCEMENT. 293 portant • questions of general public interest are involved;' appeals which affect only the rights of parties are seldom advanced. Sometimes a case involving the settlement of an estate or other trust, in which the appeal alone delayed a final settlement, and delay seemed liable to waste the estate, or a case of peculiar hardship to individuals, has been advanced. But the Hew rules of the supreme court only provide for the advancement of civil causes when they involve questions as to the constitutionality of a law, public revenue or public health, or the settlement of trusts, or when the court may deem the questions involved to be of general public concern.^ We cite below several cases in which the appeals were advanced al- though the reports do not show that fact.' The case first cited * involved the question of whether the voters of the state should be permitted to elect judges for the appellate court at an elec- tion which would be held long before the case could be deter- mined, if it were not advanced. The second case^ involved the question whether the voters of different townships in the state were entitled to elect township trustees at the same election. In both cases there were .officers asserting the right to hold the offices in question for some years after the election. These cases were advanced on the ground that the questions involved affected the people of the whole state. The same was true of the last case cited,* though that case also presented another reason for advancement, because the constitutionality of the "fee and salary law" was involved in that case. The other cases cited ' were all advanced on the double ground that im- portant public interests were involved and that the constitu- ' Parker v. State, 132 Ind. 419; El- Ind. 193 ; Leglerv. Paine, 147 Ind. 181. liott's App. Proc, §463; Buskirk's * State v. Mount, 151 Ind. 679. Prac, p. 833. ^ State v. Menaugh, 151 Ind. 260. ' Rule 32 Sup. Ct. « Legler v. Paine, 147 Ind. 181. ' State V. Mount, 151 Ind. 679 ; State ' City of Indianapolis v. Navin, 151 V. Menaugh, 151 Ind. 260; City of In- Ind. 139; State v. Webster, 150 Ind. dianapolis v. Navin, 151 Ind. 139; 607; State v. Ohio Oil Co., 150 Ind. State V. Webster, 150 Ind. 607; State 21; Indianapolis BrewingCo. v. Clay- V. Ohio Oil Co., 150 Ind. 21 ; Indian- pool, 149 Ind. 193. apolis Brewing Co. v. Claypool, 149 294 APPELLATE PRACTICE. § 197 tionality of statutes were attacked. The first of these * pre- sented the question whether the law requiring the street rail- way company operating ia Indianapolis to accept three-cent fares was constitutional. The second ^ involved the question whether the law requiring physicians to be licensed by the state board ol medical registration and examination was con- stitutional. The third' presented the same question as to the statute forbidding any person, firm or corporation operating a natural gas or oil well, to permit the flow of gas or oil from such well to escape into the open air. The next case* called for a decision whether the law creating a board of park com- missioners in the city of Indianapolis was invalid by reason of making the terms of ofiice of such commissioners more than four years. § 197. Motion to advance. — As was stated above,' a motion to advance an appeal calls for an exercise of the sound discre- tion of the court, and does not depend to any extent on the consent of the opposing party. ^ Such a motion comes within the rules which govern the presentation of special motions, and must be in writing and state specifically the cause for which an advancement is asked.' It must also be supported by affidavits showing the existence of the causes for which an advancement is asked.' The mere unsupported statement of the party or parties making the motion, or their attorneys, can not be accepted as showing cause for advancing an appeal.' The motion must be verified, and must fully state the facts on which the application is based, without aid through any refer- ence to the record, and without leaving anything to inference or conjecture.'" The court will not examine the contents of the transcript to determine whether such an application ought to be granted. It will simply look to the statements in the ' City of Indianapolis v. Navin, 151 " Stout v. Harlem, 20 Ind. App. 200. Ind. 139. ' Eule 13 Sup. Ot. ; Stout v. Harlem, 2 State V. Webster, 150 Ind. 607. 20 Ind. App. 200. 3 State V. Ohio Oil Co., 150 Ind. 21. « Eule 12 Sup. Ct. ; Stout v. Harlem, ' Indianapolis Brewing Co. v. Clay- 20 Ind. App. 200. pool, 149 Ind. 193. ' Stout v. Harlem, 20 Ind. App. 200. * See section 196, ante. " Stout v. Harlem, 20 Ind. App. 200. § 197 SUBMISSION AND BRIEFS ADVANCEMENT. 295 motion and to the fact that they are or are not sufficiently es- tablished by affidavit, and will base its ruling solely on such facts.' Opposing counsel may file counter affidavits in oppo- sition to the motion, and briefs may be filed, but oral argument will not be heard. ^ Where the parties on both sides join in asking for advancement, of course notice of the motion is un- necessary,' and a party entitled to notice always has the right to waive it. But unless waived, a party applying for the ad- vancement of a cause must give notice of his motion in writ- ing,' which must be served on the opposite party ten days before the motion is presented.' This notice must state the general character of the motion and the time appointed for hearing it,° and should be accompanied by a copy of the pro- posed motion. At the time appointed for hearing, or at such subsequent time as may be convenient, the motion will be taken up and decided by the court on the papers and briefs filed with the clerk,' and an order entered advancing or refus- ing to advance the cause. ' Stout V. Harlem, 20 Ind. App. 200. « Stout v. Harlem, 20 Ind. App. 200. ^Eule 14 Sup. Ct.; Elliott's App. « Rule 7 Sup. Ct. Proc, § 468. « Rule 15 Sup. Ct. ' Stout V. Harlem, 20 Ind. App. 200. ' Rule 15 Sup. Ct. CHAPTER 16. CONDUCT OF APPELLEE S DEFENSE. j 198. Presumptions in favor of ap- § 203. pellee. 204. 199. Motion to dismiss appeal. 200. Challenging defective assign- 205. ment of errors. 201. Presentation of matters not 206. shown by the record. 207. 202. Notice of collateral motions. Joinder in error. What is waived by joinder in error. What is not waived by joinder in error. Assignment of cross-errors. Security for costs. § 198. Presumptions in favor of appellee.^The theory oi the law is that the court appointed for the trial of any cause is an impartial tribunal, and full opportunity is given to both parties for removing a cause from any court which is not im- partial. It is, therefore, presumed that tlie decision of a>court is correct,^ until the contrary is affirmatively shown. ^ This presumption is one of the strongest known to the law and can only be overcome by a record which shows unequivocally that an error was committed.' It follows that the person attacking a judgment on appeal must present a record which affirma- tively shows that such judgment is erroneous;' and wherein such record fails to show error the appellate tribunal will pre- sume that it does not exist.^ This rule is supported by decis- > Elliott's App. Proc, § 710; Bus- Ind. 383; Taylor v. Birely, 130 Ind. kirk's Prac, p. 344. 484; Eomona, etc., Co. v. Tate, 12 ^ Indianapolis, etc., Co. v. Pugh, 6 Ind. App. 57. Ind. App. 510. * Section 117, ante. ^ Head v. Doehleman, 148 Ind. 145; ^ M. Rumley Co. v. Moore, 151 Ind. McCutchen v. McCutchen, 141 Ind. 24; Close v. Pittsburgh R. Co., 150 697; Grimes v. Grimes, 141 Ind. 480; Ind. 560; Campbell v. State, 148 Ind. Wolfe V. Evansville, etc., R. Co., 136 627 ; Deweese v. Button, 144 Ind. 114; (296) § 199 CONDUCT OF appellee's DEFENSE. 297 ions too numerous for citation.' The afBrmative showing of er- I'or must be clear and unequivocal. If anything is left to con- jecture, all doubts will be solved in favor of the action of the trial court/ and the appellate court will adopt the presump- tion which upholds the judgment, appealed from.' § 199. Motion to dismiss appeal. — We have seen that a gen- eral appearance by the appellee amounts to a submission to the jurisdiction of the appellate tribunal,' and waives all objections for any lack of notice to the party appearing.' Such an appearance also waives any merely formal objections to the manner of taking or perfecting the appeal, such as a failure to give bond in a term appeal,^ or the failure to file the transcript of a term appeal within the time limited,' or the transcript of appeal in a criminal case within ninety days ' after notice of the appeal is given,' or the failure to file an appeal bond within ten days wher^ the appeal is prosecuted under the act for the settlement of decedents' estates." It also amounts to a waiver of any technical objections to the clerk's certificate to the transcript," and all other objections to the manner of taking the appeal which do not go to the jurisdiction of the court over the appeal.'^ Taking any steps to contest the merits of the appeal by join- ing in error, agreeing to submit the cause, filing a brief, or 'Faun v. Hull, 136 Ind. 339; Tay- » R. S. 1894, § 651. lor V. Birely, 130 Ind. 484; Crawford 'E. S. 1894, § 651; Lowe v. Turpie, V. Anderson, 129 Ind. 117 ; Miller v. 147 Ind. 652, 657. Cook, 127 Ind. 339; Center S, Tp. v. ' R. S. 1894, § 1958. State, 20 Ind. App. 312 ; Tegarden v. ' State v. Walters, 64 Ind. 226. Phillips, 14 Ind. App. 27. ]" Jones v. Henderson, 149 Ind. 458, ^Buskirt'sPrac, p. 344, and author- overruling Ten Brook v. Maxwell, 5 ities cited ; Elliott's App. Proe., § 710, Ind. App. 353. and authorities cited; Woolen's Di- "Walker v. Hill, 111 Ind. 223; gest, §§ 16972, 16973, and authorities Cooper v. Cooper, 86 Ind. 75. cited. Runner v. Scott, 150 Ind. 441. " Martin v. Orr, 96 Ind. 491 ; Easter ' Elliott's App. Proc, § 709. v. Severin, 78' Ind. 540 ; Field v. Bur- *Sectionl63, anie. ton, 71 Ind. 380; People's Savings = Lowe V. Turpie, 147 Ind. 652, 657 ; Bank v. Finney, 63 Ind. 460. Schmidt v. Wright, 88 Ind. 56 ; Elliott's App. Proc, § 175. 298 APPELLATE PRACTICE. § 200 otherwise,' is deemed an appearance on the part of the person taking them. It follows that a motion to dismiss, which does not go to the question of the jurisdiction of the court,* and is not based on conduct of appellant which amounts to a waiver of his right to maintain the appeal,' must be made, if at all, on the first appearance of the party in court, or it will be re- garded as waived.' But a motion to dismiss for failure of the record to show a judgment from which an appeal will lie,' or because of appellant's failure to serve notice on other parties to the judgment appealed from,^ or because of a failure to file the transcript before the expiration of the time allowed for taking an appeal,' or because of any other matter which goes to show that the court never acquired jurisdiction of the appeal; or a motion to dismiss because the appellant has accepted a benefit based on the legality of the judgment,' or has ceased to have any real interest in the controversy,' or has failed to obey an order of the court," will be entertained, notwithstanding the party mak- ing it has entered a full appearance. It is well to remember that the cases which held that notice to the parties to a judg- ment could be waived by acts of an appellee other than such parties" have been overruled by later decisions." But there are still so many objections which are waived by a general appear- ' ance that the appellee should always carefully examine into the question whether his adversary's appeal is properly taken before he takes any steps to defend against it, and if he finds that a motion to dismiss can be made with advantage to him- self," he should file such a motion before doing anything else to resist the appeal. Unless notice of such a motion is given be- fore it is presented it will be overruled without consideration." § 200. Challenging defective assignment of errors. — The civil code provides that no pleadings shall be required in the ' Section 163, ante. ' Section 224, post. ^ Abshire v. Williamson, 149 Ind. ' Section 227, post. 248; Michigan Mutual, etc., Co. v. ^ Section 228, post. Frankel, 151 Ind. 534. " Sections 222, 223, 225, post. » Chapter 9, ante. " Elliott's App. Proc, §§ 145, 406. 4 Elliott's App. Proc, § 519. '' Sections 163, 164, ante. 5 Section 220, post. , " Chapter 18, post: 'Abshire v. Williamson, 149 Ind. " Dick v. MuUins, 128 Ind. 365. 248; Michigan Mutual, etc., Co. v. Frankel, 151 Ind. 534. § 200 CONDUCT OF appellee's DEFENSE. 299 supreme court upon an appeal except a specific assignment of errors by the appellant, to which the appellee shall file his an- swer.' This is not generally understood to forbid the filing of demurrers and motions as in an appeal at common law/ and if a defective assignment of errors were challenged in this manner, it would undoubtedly be held insufficient and the ap- peal dismissed or leave granted to amend.' But the act is un- derstood to make it unnecessary that any formal plea challeng- ing the sufficiency of the assignment of errors should be filed.* An appeal will be dismissed for defects in the assignment of errors which are apparent on its face,* in whatever way the attention of the court is called to them; or if the defect is only partial, the question sought to be raised by that part of the assignment which is defective will be disregarded.' It is there- fore much easier to raise an objection to the assignment of errors by merely calling attention to its defects by a statement in the appellee's brief than to attack it by a formal demurrer. Where more than this is done, a motion to dismiss the appeal for lack of a proper assignment of errors is usually filed.* It is possible to call attention in the appellee's brief to many defects in the assignment of errors and in the specifications thereof, which could not be questioned by a demurrer. Thus, in addition to the failure of the assignment of errors to contain the full names of all the parties,' or to be indorsed on the transcript, or written on some paper attached thereto,'" for which defects an appeal will be dismissed, there are many de- ' E. S. 1894, § 667. Forsyth v. "Wilcox, 143 Ind. 144; Arm- ' Elliott's App. Proc, § 401. strong v. Dunn, 143 Ind. 433; Ferga- * Sections 124, 132, ante. son v. Hull, 136 Ind. 339. ' Nading v. Elliott, 187 Ind. 261, 264 ; ' State v. Hodgin, 139 Ind. 498. Elliott's App. Proc, §§ 401, 402. ' McOlure v. Shelburn Coal Co., 'Nadingv. Elliott, 137 Ind. 261, 264; 147 Ind. 119; Hutts v. Martin, 141 Gourley v. Embree, 137 Ind. 82; Big Ind. 701; Snyder v. State, 124 Ind. Four, etc., Assn.- v. Olcott, 146 Ind. 335. 176; Bamett v. Bromley, etc., Co., 149 " Barnett v. Bromley, etc., Co., 149 Ind. 608; City of South Bend v. Ind. 606; City of South Bend v. Thompson, 19 Ind. App. 19; Board, Thompson, 19 Ind. 19; section 126, etc., V. Vurpillat, 14 Ind. App. 311. ante. ^ Baldwin v. Sutton, 148 Ind. 591 ; " Hays v. Johns, 42 lud. 505 ; rule 4 Hoover v. Weesner, 147 Ind. 510; Sup. Ct. ; section 125, arete. 300 APPELLATE PRACTICE. § 200 fects in the assignment of errors, and in separate specifications thereof, whicli will lead to the judgment being affirmed with- out a consideration of the points intended to be raised, if the attention of the court is called to them. These were fully dis- cussed in a former chapter.' Thus, a general assignment that the court erred in rendering judgment in favor of the appel- lees, without specifying in what particular,^ or the specifica- tion of some error which should have been made the basis of a motion for a new trial,' do not raise any question that is enti- tled to be given consideration. Also, joint assignments of error will fail to reach erroneous rulings to which exceptions were saved by part of the appellants only.' A mere clerical mistake, however, which is apparent from the context and leaves no doubt about the meaning of the assignment, is not enough to cause a specification of error to be disregarded.' And where an assignment of error is unintelligible,^ or is not suffi- ciently definite to indicate the precise ruling attacked,' or vio- lates the settled rules of practice by questioning the sufiiciency of a single paragraph of complaint,' it is only necessary to call the attention of the court to such fact by a statement in the ap- pellee's brief, and the question sought to be raised by such specification will be disregarded. The practice of disposing of all matters which may come before the supreme court in a summary way, without formal pleadings, has been highly com- mended by the judges of that court,' and that is now firmly es- tablished as the usual practice. 1 Chapter 12, ante. Warbritten v. Demorett, 129 Ind. 346 ; 2 Seisler V. Smith, 150 Ind. 88 ; Clay- Indiana, etc., R. Co. v. Dailey, 110 ton V. Blough, 93 Ind. 85, 95; section Ind. 75. 127, ante. ^ Eobbins v. Masteller, 147 Ind. 122 ; 3 Singer V. Tormoehlen, 150 Ind. Dye v. State, 130 Ind. 87. 287; Louisville, etc., E. Co. v. Hart, 'Seisler v. Smith, 150 Ind. 88; May 119 Ind. 273; section 134, anfe. v. State, 140 Ind. 88; Painter, etc., ■•Earhart v. Farmers' Creamery, Co. v. Metz Co., 7 Ind. App. 652; 148 Ind. 79; Goss v. Wallace, 140 Ind. Louisville, etc., R. Co. v. Norman, 17 541 ; Arbuckle v. Swim, 123 Ind. 208; Ind. App. 355. section 138, ante. 'Louisville, etc., R. Co. v. Norman, ^Landon v. White, 101 Ind. 249. 17 Ind. App. 355; section 286, post. See Praigg v. Western, etc., Co., 143 'Buntin v. Hooper, 59 Ind. 589; Ind. 358 ; Ross v. Banta, 140 Ind. 120 ; Elliott's App. Proc , § 409. § 201 CONDUCT OF appellee's DEFENSE. 301 § 201. Presentation ©f matters not shown by the record. — Where the appellee wishes to present facts not apparent on the face of the record as a bar to the appeal he may do so either by special plea or by verified motion.' Thus, the fact that the appellant has accepted payment of the judgment in whole or in part will bar his right to appeal from it/ as will the fact that he has accepted any benefit based on the legality of the judg- ment/ or has for a consideration executed a release of errors.* Bat neither of these facts, nor any others, which do not ap- pear from the record, will be considered by the court unless pre- sented by special plea supported by affidavit or by verified mo- tion/ unless, of course, the appellant has receipted the judg- ment on receiving payment, when that fact may be brought before the court by a return to a writ of certiorari.^ The su- preme court has expressly declared in favor of the presentation of matters in bar of an appeal by motion, on notice to the op- posite party, in preference to a special plea,' and that is now the approved practice. It is not intended, however, that mat- ters which might be pleaded in bar of a second trial of the ac- tion in the court below should be set up by special plea in the supreme court, and that the issue of fact so presented should be tried there.' Thus, the fact that the question in contro- versy had been finally adjudicated against the appellant in an- other action, after the judgment appealed from was rendered, was not a proper matter to set up in bar of the appeal, but was properly pleaded as a defense to appellant's action after the judgment appealed from had been reversed and the cause re- manded to the court below.' No matters outside of the record 'Elliott's App. Proc,, §409; New- 258. See Sonntag v. Klee, 148 Ind. man V. Kiser, 128 lad. 258 ; Buntin V. 536; McGrew v. Grayston, 144 Ind. Hooper, 59 Ind. 589. 165; "Williams v. Richard, 152 Ind. 'R.S. 1894,, §644. 528. 'Manlove v. State, — ■ Ind. — . ^Holman v. Stannard,14 Ind. App. 53 N. E. Rep. 85; McGrew v. Grays- 146. ton,144 Ind. 165; section 112, anJe. 'Buntin v. Hooper, 59 Ind. 589. * Veach v. Pierce, 6 Ind. 48; section See Newman v. Kiser, 128 Ind. 258. 1^3, ante. 8 Eckert v. Binkley, 134 Ind. 614, ^Riile 11 Sup. Ct. ; Veach v. Pierce, 620: 6 Ind. 48; Newman v. Kiser, 128 Ind. « Eckert v. Binkley, 134 Ind. 614. 302 APPELLATE PRACTICE. § 202 can be successfully pleaded in bar of the appeal except such as arose after the judgment appealed from was pronounced, and which tend to show that the appellant has ceased to have any right to maintain his appeal.' § 202. Notice of collateral motions. — Collateral motions and pleas must be filed with the clerk accompanied by such affidavits and briefs as are necessary to support them.^ The motion itself should also be sworn to.' Ten days' notice of the time of presenting such motion' or plea, ° and of its general character, must be given to the appellant or his attorney. ° It is always best to make a copy of the proposed motion a part of the notice. If a party is duly served with notice of such a plea or motion and fails to deny the facts stated therein and in the affidavits accompanying it, the court will accept such state- ments as true, and will act on the presumption of their truth.' If they are not true, the statements in the motion and affidavits should be denied by counter affi'3avits stating the real facts. But if proper notice of the motion has not been given, the mo- tion will be overruled without consideration, at the cost of the party making it.* § 203. Joinder in error. — A statute requires that the appel- lant shall make a specific assignment of the errors relied on, to which the appellee shall file his answer.' The answer re- ferred to as the only plea by the appellee was doubtless in- tended to meap the common joinder in error, which is merely a written allegatiovx indorsed on the transcript by the appellee, that "there is no error in the record or proceedings.'"" The common joinder is in the nature of a demurrer, and admits the correctness of the matters stated in the transcript for the purposes of the plea, in the same manner that a demurrer ad- mits the allegations of the plea demurred to." Its usual form is as follows: ' See chapter 9, ante. ' Glassburn v. Deer, 143 Ind. 174, ' Rule 14 Sup. Ct. 184. 5 Elliott's App. Proc, § 412. 'Dick v. Mullins, 128 Ind. 365. * Dick V. Mullins, 128 Ind. 365. « R. S. 1894, § 667. 5 Newman v. Kiser, 128 Ind. 258. "Elliott's App. Proc, § 404. « Rules 7, 15 Sup. Ct. " Elliott's App. Proc, §§ 404, 405. § 204 CONDUCT OF appellee's defense. 303 State of Indiana. In thb Supeemk Court. John Smith, Appellant, V. Thomas Jones, Appellee. Thomas Jones, appellee, for answer to the appellant's assignment of errors herein, says there is no error in the record or proceedings in this cause. Bkown & Williams, ' Attorneys for Appellee. The filiDg of such a plea does not seem to be imperatively re- quired either by the statute or rules of court, and the provision in the rules of court that a joinder in error, or the filing of an an- swer or a brief on the merits by the party in person, or by his attorney, or an agreement in writing to submit filed in the clerk's ofiice or indorsed upon the record, shall each be held to have the effect of a general appearance, is a distinct intimation that a formal joinder is considered immaterial.' The books of practice lay down the rule that "the common answer or plea admits the record;"^ but this means nothing more than that this plea does not itself challenge the correctness of the record for de- fects not apparent on its face, but admits it to be correct for the purposes of the plea, and alleges that it discloses no error.' But this plea does not preclude the appellee from denying that documents which were evidently copied into the record with- out authority form any part of it,' nor does it deprive him of the right to have a writ of certiorari issued to correct the rec- ord. ° Any matters, however, not based on the facts shown by the record as originally written, must be presented to the court by a separate plea or motion. The common joinder itself does not present them for consideration. § 204. What is waived by Joinder in error. — The principle which lies at the foundation of all appellate procedure, that a judgment will not be reversed unless it is affirmatively made to appear that prejudicial error was committed by the trial ' Rule 9, Sup. Ct. V. Viele, 148 Ind. 116; Davis v. Union '2 Kidd's Pr., 1174; Elliott's App. Trust Co., 150 Ind. 46; Blair v. Curry, Proc, § 405. 150 Ind. 99. 'Elliott's App. Proc, § 405. ^ oj^rk v. Wright, 67 Ind. 224. But * Elliott's App. Proc, § 405; Habbe see rule 34 Sup. Ct. 304 APPELLATE PRACTICE. § 205 court,' secures for the appellee a consideration of the merits of his side of the case in any event, so long as he does not con- fess error. The court will even go entirely outside of the ar- gument of counsel, and search the record for reasons by which to sustain the judgment of the court below,* while it will never go beyond the brief of Appellant in search of errors to over- throw a judgment.' But, there are many advantages, more or less of a technical kin-d, in the way of taking advantage of defects in the transcript as prepared by the appellant, and in the notices of appeal, and, in general, all objections to a full consideration by the court of the appeal, as presented in the transcript,' except such as go to the question of jurisdiction over the appeal,^ which are waived by an appearance on the part of the appellee without objecting on account of such de- fects. Since joining in error constitutes an appearance,* no ob- jections which are waived by the appearance of the appellee ' can be made after a joinder in error. If the joinder was obtained by fraud, or was made through mistake,' the court may, upon a proper application and showing of cause, permit it to be withdrawn or relieve the party from its effect." § 205. What is not waived by joinder in error. — But joinder in error can only waive matters which the party join- ing has authority to waive. We have seen that the lack of notice necessary to bring a party to the judgment into court can not be waived by any acts or omissions of some other party." The failure of appellant to join as co-appellants his co-parties to the judgment appealed from, and to serve them with notice as co-appellants, can not be waived by the a,ppear- ' Section 198, ante. ^ Section ]8, ante; Michigan Mutual, 2 Martin v. Martin, 74 Ind. 207; etc., Co. v. Frankel, 151 Ind. 534; Ab- Louisville, etc., R. Co. v. Berry, 9 shire v. Williamson, 149 Ind. 248. Ind. App. 63; Haggart v. Stehlin, 137 * Section 203, ante; Lowe v. Turpie, Ind. 43, 63. 147 Ind. 652. 3 Louisville, etc., R. Co. v. Berry, 9 'Section 163, ante. Ind. App. 63; Smith v. McDaniel, 6 *Smythe v. Boswell, 117 Ind. 365. Ind. App. 581. But see Big Creek ^ Elliott's App. Proc, § 406. Stone Co. v. Seward, 144 Ind. 205. " Section 150, ante ; sections 122, 123, * Section 199, ante. ante; chapter 13, ante. § 206 CONDUCT OF appellee's defense. 305 ance of the appellee;' nor can the omission to serve one party with notice as an appellee be waived by the voluntary appear- ance of another appellee.* Neither can the parties waive ma- terial defects in the record,' nor the failure of appellant to comply with reasonable rules of the court.* And, in general, any objections to the jurisdiction of the court over the appeal may be insisted on at any time before the cause is decided.' § 206. Assignment of cross-errors.— We have seen that the appellee is permitted to file cross-errors on the transcript of appeal presented by appellant. * This is only necessary when the appellee wishes to take advantage in an affirmative way of errors to which he saved exceptions in the court below, either for the purpose of nullifying the effect of the errors complained of by appellant, or because the appellee is also dissatisfied with the judgment.' Thus, if the plaintiff appeals from a judgment in favor of the defendant, who assigns as cross-error that the complaint does not state facts sufficient to constitute a cause of action, the supreme court, if it finds this cross- assignment to be true, will affirm the judgment, notwithstand- ing any erroneous rulings complained of by the appellant.' But in the absence of an assignment of cross-errors, erroneous rulings to which the appellee saves exceptions will not be con- sidered.' But where cross-errors are properly assigned, the errors which are thereby attacked will be fully considered, although the principal appeal should be dismissed," unless the appellee then waives such consideration." Cross-errors must 'Michigan Mutual, etc., Co. v. * Section 231, posJ. Frankel, 151 Ind. 534; Vordermarkv. ^Section 139, ante. Wilkinson, 142 Ind. 142 ; Gregory v. ' Section 140, ante. Smith, 139 Ind. 48. sgtate v. Harris, 89 Ind. 363; sec- * Abshire v. Williamson, 149 Ind. tion 140, ante. 248. 'Anderson, etc., Assn. v. Thomp- 'Blair v. Curry, 150 Ind. 99; Davis son, 88 Ind. 405; Evansville, etc., R. V. Union Trust Co., 150 Ind. 46; Co. v. Mosier, 114 Ind. 447. John Church Co. v. Spurrier, 20 Ind. " Feder v Field, 117 Ind,386 ; Home -^PP- 39. V. Harness, 18 Ind. App. 214. * Sections 222, 225, 226, post. " Section 140, ante. 20— App. Pkacticb. 308 APPELLATE PRACTICE. § 207 be assigned within sixty days after the appeal is submitted, unless the court shall, upon special application, and for cause shown, permit the assignment to be filed after that time. But cross-errors can not be assigned under any circumstances after one year from the time the judgment appealed from was ren- dered.' The appellee must also file his brief in support of the cross-errors within sixty days after they are assigned, on pen- alty of having them struck out.^ The appellant may answer the assignment of cross-errors, but it is not necessary that he should do so, since it is the settled practice of the court to consider the questions raised by an assignment of cross-errors without requiring any plea on the part of the adverse party." § 207. Security for costs. — If the appellant, or, in case there is more than one, the appellants, are non-residents of the state, he or they may be required to give security for the costs of the appeal.' The fact of non-residence may appear from the transcript or papers, or it may be shown by an affi- davit filed by the appellee at any time before the cause is sub- mitted.* Notice of an application for an order that security be given should be served on the appellant as in case of other motions.' Unless the party or his attorney is present in court when the order that security shall be given is made, he or his attorney shall be given notice of the order, and unless the security is given within a time fixed by the order, the appeal will be dismissed.' In a term appeal, or when a supersedeas bond has been given, the appeal bond is usually sufficient security that the appellant's costs will be paid. And where a non-resident plaintiff has given bond for costs in the court below, such bond covers the costs of an appeal.' But where a party who has given no bond in the court below undertakes to prosecute an appeal without giving an appeal bond," he may, if he. is a non-resident, very properly be required to give bond 1 Rule 6 Sup. Ot. ^ Rules 7, 15 Sup. Ct. 2 Rule 21 Sup. Ot. ; section 179, ante. ' Rule 35 Sup. Ct. 'Elliott's App. Proc, 424. * Hendricks v. Caraon, 97 Ind. 245. *R. S. 1894, §598; rule 35 Sup. Ct. ^ Chapter 14, ante. " Rule 35 Sup. Ct. § 207 CONDUCT OF appellee's defense. 807 for the costs of the appeal. The reported cases do not, so far as is known, show any instance of an appeal to the supreme or appellate courts being dismissed for failure to file a cost bond, because, as such dismissal always precedes submission, no written opinion of the court is filed. It will be noticed that the cost bond must be applied for before submission, or the court will not order that it shall be given.' ' Bale 35 Sup. Ct. CHAPTER 17. CORRECTION OF RECORD. § 208. Record imports absolute ver- ity and can not be contra- dicted. •209. Appellant must present record aflSrmatively showing error. 210. Certiorari will iRsue to correct mistakes in transcript. 211. Other purposes for which certi- orari may issue. 212. Form of application for certio- rari. 213. Notice of application for cer- tiorari § 214. Errors in the record below cor- rected by the trial court be- fore certiorari issues. 215. Notice of proceeding to correct in court below is essential. 216. Correction of clerk's certifi- cate. 217. Eehearing not granted to ena- ble parties to correct record. 218. Correction may sometimes be had after oral argument. 219. Form of writ of certiorari. § 208. Eecord imports absolute verity and can not be con- tradicted. — It is a settled principle •in appellate procedure that the court to which an appeal is taken can receive no informa- tion as to the proceedings in the court below from any source except from the transcript of the record ' as certified by the clerk of that court.' The trial court is the custodian of its own files, and when a transcript is properly certified to the supreme court, its statements must be accepted as con- clusive until it is shown that the clerk will change his certifi- cate because of having made a mistake, or because the trial court has, by some proper action, made the record or files dis- close a condition different from that set out in the transcript." ' City of Bloomington v. Phelps, 149 which it is taken and filed that a bill Ind. 596; Justice v. Justice, 115 Ind. of exceptions imports absolute verity. 201; Blair v. Curry, 150 Ind. 99; sec- Fisher v. Fisher, 131 Ind. 462. tion 4, ante. It is only for the pur- * City of Bloomington v. Phelps, 149 poses of an appeal in the cause in Ind. 596. (308) § 208 CORRECTION OF RECORD. 309 The facts stated over the certificate of the clerk can not be suc- cessfully contradicted by aflfidavits showing that the record or papers are incorrectly copied/ or that some papers which prop- erly form a part of the record are missing from the files and • can not be found/ or any other facts whatever. The only use to which affidavits setting up errors in the record can be put is to induce the court to order that the record .shall be cor- rected by the clerk who made it.' Neither can the record be disputed or its statements corrected by procuring from the files of the court below the original papers in the case and filing them in the higher court.* Nor is a sworn copy of the opinion of the court, giving the judge's reasons for making a ruling, as taken down by the court stenographer and filed with the transcript, entitled to any consideration.' Nor will copies of parts of the record under the certificate of the clerk control the record as originally made, unless they were sent up in answer to a writ of certiorari.^ , It has been held that an omission in the transcript may be supplied by an agreement of parties, provided the matter sought to be brought into the transcript was a part of the record be- low,' but this holding is believed to be unsound,' and in any case the agreement of parties as to what forms a part of the record and has been omitted from the transcript is not entitled to any consideration unless such agreement has itself been made a part of the record in a manner known to the law.' An agreement of parties that certain matters shall be considered a part of the record, which are not a part thereof under the law and rules of practice, has no effect whatever, and the matters so agreed to be a part of the record will be entirely disregarded ' City of Bloomington V. Phelps, 149 ^Lake Erie, etc., R. Co. v. Mugg, Ind. 596; Justice v. Justice, 115 Ind. 132 Ind. 168, 172. 201 ; Smith v. Goetz, 20 Ind. App. 142. " Figart v. Halderman, 59 Ind. 424. See Williams v.Freshour, 136 Ind. 361. 'Truitt v. Truitt, 38 Ind. 16, 21; 'Center S. Tp. v. State, 20 Ind. Elliott's App. Proc, § 188. App. 312. 8 Blair V. Curry, 150 Ind. 99; City of 'Section 210, post. Indianapolis v. Turner, — Ind. App. *Du Souchet v. Butcher, 113 Ind. — , October 27, 1899. 249; PhenixIns.Oo. v.Lorenz, 7Ind. ^ Blair v. Curry, 150 Ind. 99. App. 266, 276. 310 APPELLATE PRACTICE. § 209 by the court to which an appeal is taken.' Neither can addi- tional evidence as to plaintiff's right to recover be brought be- fore the court by filing afi&davits in the court in which an ap- peal is pending.^ If a transcript does not correctly disclose the facts as to what was filed in the court below with the rul- ings of the court thereon and exceptions saved thereto, the only remedy.by which the real facts may be brought before the court to which the appeal is taken is to cause an amended transcript to be certified up by the clerk of the trial court.' If the defects are in the records or files of that court, such defects must be corrected by proper proceedings and a copy of the cor- rected record procured.* The facts certified to by the clerk in answer to a writ of certiorari must be accepted as true, and wherein they contradict the facts shown by the record as origi- nally certified, they will supersede that record. ° § 209. Appellant must present record affirmatively show- ing error. — Since all reasonable presumptions are indulged in favor of the correctness of any action taken by the trial court,* a party can liot successfully appeal unless his transcript of the record affirmatively shows that one or more errors were committed by which his rights were prejudiced.' It is, there- fore, his duty to see that the rulings of the trial court and his exceptions thereto are properly entered. It is also his duty to see that the record is correctly copied and certified to by the clerk before it is filed.* But because clerks will make mistakes in copying records, and because careless attorneys will file transcripts which do not correctly recite what was done by the court below, and because unscrupulous attorneys in taking appeals will sometimes take advantage of the right to direct what part of the record shall be certified by the clerk ' and 1 Davis V. Union Trust Co., 150 Ind. * Section 214, post. 46; John Church Co. v. Spurrier, 20 = Pennsylvania Co. v. Sears, 136 Ind. App. 39; City of Indianapolis.v. Ind. 460, 481. Turner (.Ind. App.), Oct. 27, 1899. * Section 198, ante. " Jonas V. Hirshburg, 18 Ind. App. 'Section 117, ante. 581, ■ ^ Section 117, ante. ^ Section 210, post. ^ Section 115, ante. § 210 CORRECTION OF RECORD. 311 purposely cause him to omit parts of the record which might show that the errors complained of were not sufficient cause for reversing the judgment/ it is often necessary to have a corrected transcript in order that the supreme court may know what action the trial court really took and be able to judge whether it was erroneous. Such a corrected transcript may be procured by making a proper application for a writ of certi- orari, but in no other way.^ § 210. Certiorari will issue to correct mistakes in tran- script. — Courts having appellate jurisdiction have full power to compel inferior courts to certify to them a full and com- plete transcript of the records and proceedings of such in- ferior tribunals and to require the production of any papers whenever it shall be necessary for the proper determination of any cause or proceeding pending before the appellate tribunal.' This power is frequently exercised and is always available as a means of correcting the transcript of an appeal when the rec- ord below is correct and has only been imperfectly copied; for no part of the record below nor of the papers filed in the trial court is certified to the supreme or appellate court on appeal* except the bill of exceptions containing the evidence.' The original papers and entries remain in the trial court and are exclusively under its control.^ The rules of court permit a correction of the' transcript- as to almost any defect, as a matter of course, upon the application of either party for a writ of cer- tiorari at any time before the cause is submitted.' But a per- son who unnecessarily applies for the writ, as shown by the fact that a teturn to it shows there was originally no material error in the transcript, is liable for the costs occasioned by his application. The writ of certiorari is available to the appellee as well as to the appellant, notwithstanding the case was sub- ' Chapter 20, pos«. = Burns' Supp. 1897, § 638a!; Acts ' Sumner v. Goings, 74 Ind. 293. 1899, p. 384; Du Souchet v. Butcher, ' R. S. 1894, § 680. 113 Ind. 249 ; Elliott's App. Proc, * Leach v. Mattix, 149 Ind. 146; §205. Holt V. Eockhill, 143 Ind. 530; Bilby « Elliott's App. Proc, § 205. V. Elliott, 14 Ind. App. 98. ' Rule 32 Sup. Ot. 312 APPELLATE PRACTICE. § 210 mitted on his default/ and a motion to dismiss the appeal be- cause of defects in the transcript will be overruled.' If the ap- pellee finds the transcript to be incorrect he should procure it to be made perfect. This rule also applies to appeals in crioj- inal cases.' The transcript may be corrected by taking improper matter out of it, as well as by adding matters which have been omitted.' But when the transcript shows on its face that such matter properly forms no part of the record, the opposing counsel need only point out that fact in his brief, and it will be disregarded by the court, so that a certiorari in such a case is unnecessary.' After the submission of a cause, a writ of certiorari will only be entertained upon proper application, ° after due notice to the opposite party.' The application must be verified,' and supported by affidavits and briefs showing that the omitted matter is material.' Where the matters that would be shown by the corrected record have been waived by a failure to discuss them in the briefs, there qan be no good reason for bringing up a corrected record, and a certiorari will be refused. But an agreement to submit the cause does not waive the right to apply for a correction of the record." Where counsel has discussed a supposed error on the assumption that the record is correct, he may usually obtain a certiorari to make it so at any time before the judges have agreed on a de- cision. The writ of certiorari seldom issues except on applica- tion of a party," and will never be awarded on the application of a stranger to the record, or of one who has no substantial interest in the judgment.'^ ' Pennsylvania Co. v. Holderman, ' Section 212, post. 69 Ind. 18. " Section 213, post. •" Miller v. Shriner, 87 Ind. 141 ; Hall « Ross v. Stockwell, 17 Ind. App. 77 ; V. Durham, 113 Ind. 327. State v. Hallowell, 91 Ind. 376 ; Peoria, ? State V. Weil, 89 Ind. 286 ; Walker etc., Ins. Co. v. Walser, 22 Ind. 73, 87 ; V. State, 102 Ind. 502. section 212, post. * Elliott's App. Proc, § 216. ' Ross v. Stockwell, 17 Ind. App. 77. = State V. Halter, 149 Ind. 292; "" Clark v. Wright, 67 Ind. 224. Hoover v. Weesner, 147 Ind. 510; " Kesler v. Myers, 41 Ind. 543, 555; Henderson v. McAllister, 141 Ind. State v. Hallowell, 91 Ind. 376. 436; Koons v. Beach, 147 Ind. 137; " Elliott's App. Proc, § 218. Bealer v. State, 150 Ind. 390. § 211 COEEECTION OF KECOED. 313 Strangers are permitted to exercise no greater control over applications to correct the record than they may assert over other parts of the appeal. The supreme court has authority at any time to send a certiorari for a corrected transcript for its own information, but it will seldom do this unless the tran- script discloses a record which evidently could not have been made by the trial court/ And even then this authority will only be exercised to inform the conscience of the court, that it may affirm the judgment/ If the transcript as made discloses no error, the court will never issue a certiorari to discover error for which the case may be reversed.' Bringing up a part of the record which was omitted from the transcript of a term appeal, and presenting for review erroneous rulings shown by such part of the record, is not an abandonment of the first appeal,* since the matters certified up in answer to the writ of certiorari form a part of the record in the original cause, and the presentation of such matters may properly be made as a part of the original appeal.' A second certiorari may be is- sued where the first proves ineffectual, but unless the party can show that he used diligence in having the first writ issued and delivered to the clerk of the court below, and in having him make out a correct record, the second application will be denied. ° § 211. Other purposes for which certiorari may issue. — A writ of certiorari is sometimes of use where the transcript as originally made correctly recited the record as made by the court below. Thus, if the record below incorrectly states what was done in the trial court and that record is corrected by a nunc pro tunc entry after the appeal is taken,' the corrected rec- ord may be brought up by a writ of certiorari and made to take the place of the record as shown by the original transcript.' ' Hurt V. State, 26 Ind. 100. * Lowe v. Turpie, 147 Ind. 652. ''Brown v. Osborne, 1 Blaokf. 32, ^Lowe v. Turpie, 147 Ind. 652. note; Grover, etc.. Machine Co. v. ^Bannister v. Allen, 1 Blackf. 414. Barnes, 49 Ind. 136. ' Section 214, post. ' Kesler v. Myers, 41 Ind. 543, 555 ; « Walker v. State, 102 Ind. 502, 513 ; State V. Hallowell, 91 Ind. 376. Ross v. Stockwell, 17 Ind. App. 77. 314 APPELLATE PRACTICE. § 212 And if the appellant should accept payment of the judgment from which his appeal is taken and receipt the record, such receipted record may be brought up by certiorari and a dismis- sal of the appeal secured ' under the rule that a party shall not maintain an appeal from a judgment after receiving any money paid or collected thereon.^ And where a party has done some- thing which the rules of practice forbid him to do, as where the appellant xefiled his complaint without alteration after a demurrer had been sustained thereto," a certiorari to bring up original papers which no longer form a part of the record proper may disclose facts that are fatal to the appeal. In the case cited, it was held that the complaint no longer formed any part of the record after a demurrer had been sustained to it, notwithstanding it was filed a second time, and that, as the appellant was not shown to have had any complaint on file in the court below, he could not maintain an appeal from its decision.' § 212. Form of application for certiorari. — The application for a certiorari must clearly designate the parts of the record asserted to be defective, improperly omitted, or improperly in- corporated in the transcript.' It is always best to set out in an application for a writ of certiorari, not only a statement as to the precise part of the record which is erroneous, but also the correct reading of that part of the record, unless it consists of the entire omission of a paper or instrument, so that the court may know exactly what the error is and whether it affects the appeal in any way. The references should be made to the record in the court below, rather than to the transcript as it appears in the court above, for it is the habit of the clerk to incorporate the application in the writ of certiorari that is is- sued in answer thereto, and the specifications in the applica- tion form the directions to the clerk of the trial court as to what parts of the record he shall certify in his return to the writ. It is very seldom that a certiorari will issue to bring up 1 Clark V. Wright, 67 Ind. 224 ; Hoi- * Ellis v. City of Indianapolis, 148 man v. Stannard, 14 Ind. App. 146. Ind. 70. 2 E. S. 1894, § 644. '° Rule 34 Sup. Ct. " Ellis V. City of Indianapolis, 148 Ind. 70. § 212 CORRECTION OF RECORD. 315 the whole record, but the clerk will be directed to certify only such parts as will show the corrections that ought to be made in the original transcript. Thus, if the complaint alone is in- correctly copied, the certiorari will call for a correct copy of the complaint, but not for the other papers iii the case. If a demurrer is omitted, the entry showing its filing and a copy of the instrument will be called for. Briefs and affidavits may be filed in support of and in opposition to the motion, but oral argument will not be heard.' It is proper to file briefs for the purpose of showing that the errors complained of are or are not material. Affidavits are necessary to show that the record below is not correctly tran- scribed. Affidavits tending to show that the variance between the transcript and the entries or papers below is due to un- authorized changes in the latter after the transcript was filed will not be received in opposition to a proper application for a certiorari, duly supported by affidavit,^ but such affidavits may be filed in aid of a return by the clerk to such writ asserting that the transcript is a con-ect copy of the original record.' The application itself should also be verified. It is possible that a record on its face might so clearly show that it was in- correctly copied as to justify issuing a writ of certiorari on an unverified application.' But that can very rarely be the case,' since the court can not judicially know but that the trial court made a very imperfect record, and the clerk certified all of it up on appeal.^ The following form of application for a cer- tiorari may be used when the clerk has omitted or incorrectly copied parts of the record: State of Indiana. In thb Supkeme Couet. John Jones V. William Smith. ^ _ The appellant respectfully shows the court that the transcript of the record m this cause is incorrect and incomplete in the following particulars : 1. Appellant's demurrer to appellee's reply is omitted from the transcript. 2. The following sentences of the second paragraph of appellant's answer are omitted from said paragraph as copied into the transcript : ' Rule 34 Sup. a. * Peoria, etc., Ins. Co. v. Walser, 22 ^ Citizens' Street R. R. Co. v. Heath, Ind. 73, 87. — Ind. -, December 22, 1899, citing ' Elliott's App. Proc, § 220. Burton v. Ferguson, 69 Ind. 486. « State v. Hallowell, 91 Ind. 376. "Louisville, etc., R. Co. v. Kendall, 138 Ind. 313. 316 APPELLATE PRACTICE. § 213 (Here set out the omitted sentences.) 3. The words "and this was all'the evidence given in the cause," contained in the judge's certificate to the bill of exceptions, are omitted from the copy of the bill in the transcript. Wherefore, appellant prays a certiorari to the clerk of the court commanding him to make and certify to this court correct copies of the said demurrer, paragraph of answer and certificate to the bill of exceptions. Thomas Williams, Attorney for Appellant. Subscribed and sworn to, etc. When the record of the court below has been changed by ap- propriate proceedings/ after the appeal was taken, the state- ments in the application may be varied to read as follows: (Title of case.) The appellant shows the court that the record in this cause has been changed by the court by a nunc pro tunc entry herein so that the entry of judgment in the order book of said court reads as follows : (Here set out the corrected judgment.) That said judgment reads differently from the judgment set out in the tran- script of this cause that was certified to this court, wherefore the appellant prays that the clerk of said court be ordered to certify to this court a tran- script of the order correcting said judgment, and of all the proceedings relat- ing thereto. (Signed) Subscribed and sworn to, etc. § 213. Notice of application for certiorari. — After a cause is submitted, no motion for a certiorari to correct the record therein will be entertained unless the opposite party or his at- torney shall have had ten days' notice in writing of the in- tended motion.* A copy of the proposed application for a cer- tiorari, designating the parts of the record asserted to be defect- ive, improperly omitted, or improperly incorporated in the transcript, should be made a part of the notice, a copy of which should be delivered to the opposite party. Of course this no- tice, like any other notice, may be waived.' If the time spec- ified in the notice as that when the application will be pre- sented is less than ten days after the notice is served, it is not necessary to serve a new one, but the court will wait until the expiration of ten days after service of the notice and then pass ^ Section 214, posf. ' 'Pennsylvania Oo. v. Holderman, 2 Rule 34 Sup. Ct. 69 Ind. 18. § 214 CORRECTION OF RECORD. 317 on the petition and such affidavits and briefs as the parties may have filed.' The notice should h6 served and service proved as in case of other notices in the supreme court. ^ § 214. Errors in the record below corrected by the trial court before certiorari issues. — Where the record in the court below is incorrect, as where a pleading is lost/ or a bill of ex- ceptions is improperly dated,' or the judgment or decree has not been properly entered in the order book, the supreme or appellate court has no authority to correct the defect. These courts have no control over the papers and record entries in the trial courts,' and must take them as they are shown by the clerk's certificate to have been made.* The only authority that these courts can exert is to call on the clerk of-the court below to send them a new transcript, or to verify the transcript by a new certificate. But where the record below is defective, it may be corrected on proper application by the court below, after which the corrected record may be brought up by certio- rari.' This course is the only one by which a corrected state- ment of the proceedings below can be brought before the ap- pellate tribunal. For, as we have seen, it will not receive in- formation of such proceedings from any other source than a transcript duly certified by the clerk of the trial court.' It is not competent, however, to make a new record under the guise of correcting the old one, and the power of the trial court is limited to entering of record facts which before existed. It is accordingly held that a correction will not be made by a nunc ' Durbin v. Haines, 99 Ind. 463. « Section 208, ante. ' R. S. 1894, § 489. ? Davis v. Talbot, 149 Ind. 80 ; Drake ' Davis V. Talbot, 149 Ind. 80; Cen- v. State, 145 Ind. 210, 220; Walker v. ter School Tp. v. State, 20 Ind. App. State, 102 Ind. 502; Boyd v. Schott, 312; Ross v. Stockwell, 17 Ind. App. 152 Ind. 161; Cluck v. State, 40 Ind! -77; State v. McGill, 12 Ind. App. 665. 263; Center School Tp. v. State, 20 *Drakev. State, 145 Ind. 210, 220; Ind. App. 312; Ross v. Stockwell' 17 Importers', etc., Bank v. Knight, 18 Ind. App. 77; State v. McGill, 12 Ind. Ind. App. 257. App. 665. ' State v. McGill, 12 Ind. App. 665 ; » Seotioa 208, ante. Cluck V. State, 40 Ind. 263 ; Elliott's App. Proc, §§ 205, 206. 818 APPELLATE PRACTICE. § 214 pro tunc entry in a trial court, unless there is some written ev- idence of the transaction to amend by, of a date prior to, or at least of equal date with, the erroneous record sought to be cor- rected.' When counsel learns of defects in the trial court record, im- mediate steps should be taken to procure its correction. If this is done, a stay of proceedings on the appeal may be had until the correction can be made and the corrected record brought up by certiorari." But if there is an unreasonable de- lay in applying for leave to make the correction, it may be re- fused and the judgment affirmed on the imperfect record.' A delay of two years, however, was held not to destroy the ap- pellee's right to have the judgment corrected so as to conform with the one actually rendered when the application for a cor- rection was made as soon as the ei-ror was discovered.' An order correcting the record in the trial court may be appealed from if it is made in an independent proceeding;' but if the proceeding to correct the record is auxiliary to a pending ap- peal, the question whether the correction was properly made should be presented in the principal appeal on the transcript made in answer to a writ of certiorari,^ provided the proper ex- ceptions have been saved and the question is properly pre- sented for review.' A motion to correct the record by a nunc pro tunc entry can only be made b.y a party to the record or his heirs or representatives.' A stranger to the record can not pro- cure such a correction. Corrections of this character are made ' Driver V. Driver, — Ind. — ,54N. *Brittenham v. Robinson, — Ind. E. Rep. 389 ; Boyd v. Schott, 152 Ind. App. -^, 54 N. E. Rep. 133. 161; Harris v. Tomlinson. 130 Ind. * Walker v. State, 102 Ind. 502; El- 426; Kelley v. Adams, 120 Ind. 340; liott's App. Proc, § 214; Runnels v. Johnson v. Moore, 112 Ind. 91 ; Chis- Kaylor, 96 Ind. 503. som V. Barbour, 100 Ind. 1 ; Williams « Tomlinson v. Harris, 130 Ind. 339 ; V. Henderson, 90 Ind. 577; Schoon- Driver v. Driver, — Ind. — -, 54 N. over V. Reed, 65 Ind. 313. E. Rep. 389; Harris v. Tomlinson, 130 ' Doe V. Owen, 2 Blackf. 452. Ind. 426; Hannah v. Dorrell, 73 Ind. 'Importers', etc., Bankv.Knight.lS 465; Seig v. Long, 72 Ind. 18. Ind. App. 257. ' Walker v. State, 102 Ind. 502. « Elliott's App. Proc., § 211. § 215 CORRECTION OF RECORD. 319 summarily on motion, and if a formal complaint was filed it will be treated as a motion/ § 215. Notice of proceeding to correct in court below is es- sential. — After the close of the term at which judgment was rendered, the parties to a case are no longer before the court, and any proceedings therein require that notice should be given to the parties interested in order that the court may have juris- diction. This principle applies to a motion to correct the record by a nunc pro tunc entry. ^ The exact form of the notice of such a proceeding and the time for which it must be given are not prescribed by any general rule; but where they are not controlled by the rules of the court to which the application is made, the only requirement is that they shall be reasonable." The notice should disclose the particulars in which the record is defective and the intended correction, and should be served long enough before the time for presenting a motion to give the opposite party a reasonable opportunity to prepare for the hearing. Four days' notice of an application to be made to a court fifty miles away has been held sufficient.* This notice may be served on the party, even though he be confined in prison,' or on his attorney if he is actively represented by cue.' § 216. Correction of clerk's certificate. — If the clerk's cer- tificate to the transcript is insufficient by reason of the omis- sion of his signature' or the seal of the court,* or because it fails to state that parts of the transcript ordered by appellant are included therein,' leave to amend the same may be obtained on proper and seasonable application." But if the appellant, ' Elliott's App. Proc, § 210. ' Watson v. Finch, 150 Ind. 183. ''Elliott's App. Proc, § 212. 'Oonkey v. Conder, 137 Ind. 441; ' Latta V.Griffith, 57 Ind. 329; Judge Jackson v. Van Devender, 76 Ind. 27. Howard, in Driver v. Driver, — Ind. ^ Richwine v. Jones, 140 Ind. 289; — , 52 N. E. Rep. 401. ' Louisville, etc., E. Co. v. Kendall, * Latta V. Griffith, 57 Ind. 329. 138 Ind. 313. ' Walker v. State, 102 Ind. 502, 514. " Louisville,etc., R. Co. v. Kendall, ° Judge Howard, in Driver V. Driver, 138 Ind. 313; Jackson v. Van Deven- ' — Ind. — , 52 N. E. Rep. 401. der, 76 Ind. 27. 320 APPELLATE PKACTICE. § 217 after obtaining such leave, fails to cause the defect to be rem- edied within a reasonable time, his appeal may be dismissed;' and if the clerk, in answer to an order that he shall correct his certificate, replies that the certificate is correct, such answer will be received as final. ^ § 217. Eehearing not granted to enable parties to correct record. — While a certiorari is nearly always issued to correct errors in the transcript which are pertinent to points involved in the appeal, if proper application is made before the case is decided,' it has been held many times that a rehearing will not be granted to enable a party to correct the record.' It is the duty of parties to see that the record is properly made up, and a party who fails to move for the correction of the record in a matter material to his rights in the appeal is inexcusably negligent. Even where the transcript erroneously stated one of the material facts on which the appellee's right to a judgment of many thousand dollars depended, this rule was applied.' A judgment rendered on a defective transcript will be as effect- ual for all purposes as if the transcript had been correct,' and will bar any other proceeding based on facts which ought properly to have been presented in the first action. But the court has been known to order a certiorari of its own motion,' after a petition for rehearing had been filed, to inform its own conscience as to which of two contradictory statements in the transcript was correct, and enable it to sustain the judgment.' ' Jackson V. Van Devender, 76 Ind. Ind. 70; State v. Terre Haute, etc., 27. E. Co., 64 Ind. 297; Cole v. Allen, 51 ' Louisville, etc., E. Co. v. Kendall, Ind. 122; Pittsburgh, etc., Co. v. "Van 138 Ind. 313. Houten, 48 Ind. 90 ; Warner ^. Camp- 'But see Importers', etc.. Bank v. bell, 39 Ind. 409; Elliott's App. Proc, Knight, 18 Ind. App. 257. § 280. ♦State V. Halter, 149 Ind. 292; ^goard, etc., v. Center Tp., 105 Ind. Drake v State, 145 Ind. 210, 218 ; Mil- 422, 444. ler V. Evansville, etc, E. Co., 143 » Gregory v. Slaughter, 19 Ind. 342. Ind. 570; Board, etc., v. Center Tp., ' Section 210, anfe. 105 Ind. 422; State v. Dixon, 97 ^Grover, etc., Co. v. Barnes, 49 Ind. Ind. 125; Mansur v. Churchman, 84 136. Ind. 573; Merrifleld v. Weston, 68 § 218 CORRECTION OP RECORD. 321 § 218. Correction may sometimes be had after oral argu- jjlgjlt. — While the court is not bound to award a certiorari unless it is promptly applied for, we have seen that it has been known to grant such a writ even after a petition for rehearing had been filed;' and certiorari has many times been granted after the briefs were filed and oral argument had.' It follows that it is not always best to point out the defects in a transcript which, would prevent the points made by your adversary from being- entitled to consideration unless the transcript is a correct copy of the record below. If the defects in the transcript are susceptible of amendment by certiorari, the only effect of calling attention to th-em in the appellee's brief will probably be to enable appellant to secure a correc- tion of the record; while if they are not mentioned by appellee, and the judges should discover such defects in considering the appeal, they will of their own motion decline to consider objections that are based on the erroneous record. § 219. Form of writ of certiorari. — The form of certiorari usually issued by the clerk of the supreme court reads as fol- lows: State of Indiana. In the Supreme Court. Tbkm, 189—. Thomas Johnson "l V. J. Appeal Fbom the Court. William Wilson. J In the above entitled cause it was alleged on behalf of the appellant (or appellee) that the transcript of the record and proceedings of the court below on file and before the court is diminished and defectively certified in the fol- lowing particular, to wit : , whereupon the court ordered that a certio- rari be awarded, directed to the clerk of said court, commanding him forthwith to make out and certify to the supreme (or appellate) court afore- said a full and complete transcript of the records and proceedings in said cause in the court, and more particularly of the matter and things so alleged as defective, and have the same with this writ before the judges of said supreme court without delay at the supreme court house in Indianapolis. Taken from the records of said court. ' Grover, etc., Co. v. Barnes, 49 Ind. ^ See Schrichte v. Stites' Estate, 127 136. Ind. 472. 21— App. Practice, 322 APPELLATE PRACTICE. § 219 Witness, , clerk of the supreme court, and the seal thereof, the day of , 189—. Clerk of the Supreme Court. Instead of filling in a statement of the particulars in which the transcript is alleged to be defective, the clerk usually attaches to the writ the petition for a writ of certiorari, and the statements therein made as to what has been omitted or defect- ively certified guides the clerk below in making his return to the writ.' ' Section 212, ante. CHAPTER 18. DISMISSAL OF AN APPEAL. >220. 221. 222. 223. 224. 225. 226. Failure to have proper judg- § 227. ment entered below. Failure to serve notice on 228. parties to judgment. Failure to file brief. 229. Failure to give security for costs. 230. Failure to file transcriptwithin time allowed. 231. Failure to number pages and 232. lines and make marginal 233. notes. , Failure to make assignment of 234. errors contain full names of all parties. Acceptance of benefit of judg- ment. Person without real interest can not maintain appeal. Appeal can not be maintained in name of dead person. Waiver of objections by taking any steps in appeal. Motion to dismiss appeal. * Dismissal by appellant. Reinstatement of appeal erroneously dismissed. Withdrawal of transcript for second appeal. § 220. Failure to have proper judgment entered below. — Appeals will lie only from final judgments and from certain kinds of interlocutory orders that are specified by the statute,' and unless the transcript of an appeal shows the entry of a final judgment/ at a time when the court had authority to enter it,' by which the rights of all parties to the action were finally adjudicated,* or of an order from which the statute grants an 'Chapter 6, ante. ''Keller v. Jordan, 147 Ind. 113; Home, etc., Co. v. Globe, etc., Co., 145 Ind. 174; James v. Lake Erie, etc., R. Co., 144 Ind. 630; Gray v. 'Singer, 137 Ind. 257; Thomas v. Chi- cago, etc., R. Co., 139 Ind. 462; State v. Spencer, 92 Ind. 115; Colchen v. Ninde, 120 Ind. 88; New York, etc., Co. v. Doane, 105 Ind. 92 ; Brannock V. Stocker, 76 Ind. 573. ^ Backer v. Eble, 144 Ind. 287; City of Jeffersonville v. Tomlin, 7 Ind. App. 681. 'Keller v. Jordan, 147 Ind. 113; Champ V. Kendrick, 130 Ind. 545; City of Jeffersonville v. Tomlin, 7 Ind. App. 681. (323) 324 APPELLATE PRACTICE. § 221 appeal,' the appeal will be dismissed. It is only necessary that the judgment should assume to make a final disposition of the case in order to authorize the maintenance of an ap- peal. It is well settled that an appeal can be taken from a judgment that is wholly void.* It follows that where a party wishes to present for review on appeal the correctness of a ruling on demurrer/ or other order which determines a material question in the case against him/ he must make sure that the court goes further and renders a final judgment against him, and that such judgment is duly entered by the clerk on the order book,^ before he takes an ap- peal. If he fails to do this, or fails to cause his transcript to show that a final judgment or an appealable order was entered by the trial court, his appeal will certainly be dismissed with- out consideration. Filing a proper motion for a new trial in due season suspends the time for appealing, and an appeal taken while such a motion is pending will be dismissed.* But where the record shows the filing of a motion for a new trial and the motion is not in the record, it will be presumed in favor of an appeal that it was not such a motion as the statute requires in order to present any question for decision.' § 221. Failure to serve notice on parties to Judgment. — Since a court can not decide a controversy until it has obtained jurisdiction over all the parties," it is necessary to serve with 1 Thomas v. Chicago, etc., R. Co., 144 Ind. 630; Slagle y. Bodmer, 58 139 Ind. 462 ; Jackson v. Myers, 120 Ind. 465 ; Foster v. Lindley, 20 Ind. Ind. 504; Taylor v. Board, etc., 120 App. 155; State v. Harrod, 21 Ind. Ind^ 121 ; Western U. Tel. Co. v. App. 177. Locke, 107 Ind. 9 ; Cravens v. Cham- * Section 82, ante. bers, 55 Ind. 5 ; Ogle v. Dill ; 55 Ind. ^ James v. Lake Erie, etc., Co., 144 130; Pleasants v. Vevay, etc., Co., 42 Ind. 630; section 82, ante. Ind. 391. .. "New York, etc., R. Co. v. Doane, ^Learyv. Dyson, 98 Ind. 317; Louis- 105 Ind. 92. See Colohen v. Ninde, ville, etc., R. Co. v. Lockridge, 93 120 Ind. 88. Ind. 191; Board, etc., v. Logansport, 'Hobb v. Salem Bedford S. Co., — etc., Co., 88 Ind. 199 ; Dyer v. Board, Ind. App. — , 53 N. E. Rep. 1063. etc., 84 Ind. 542. See McKinney v. » Section 152, ante; Abshire v. Will- Frankfort, etc., R. Co., 140 Ind. 95. iamson, 149 Ind. 248; Vordermark v. 'James v. Lake Erie, etc., R. Co., Wilkinson, 142 Ind. 142; Michigan § 222 DISMISSAL OP AN APPEAL. 325 notice of an appeal all parties to the judgment appealed from who are not otherwise brought before the court.' This notice may be dispensed with in term appeals/ because such an ap- peal is a mere continuation of the proceedings in the court below, and all parties to such proceedings are required to take notice of it. Notice may also be dispensed with in case the parties voluntarily appear and submit to the jurisdiction of the court. ° But where an appeal is taken after the close of the term at which the judgment appealed from was rendered, and notice is not waived, all the parties to the judgment must be served with notice or the appeal will be dismissed.^ Even though a party prays an appeal during term and takes some steps toward perfecting it, if he neglects to take all the steps required to perfect it as a term appeal at the time when the law and rules of court require them to be taken, he must give notice to all parties as in a vacation appeal, on penalty of dis- missal.' In order to be sufficient, such notices must prop- erly designate whether the parties notified are served with notice as appellants or appellees,* and must be served in the manner prescribed by law' and within the time allowed by the rules of court.' In case of the dismissal of an appeal for lack of notice before the time for appealing has expired, an- other appeal may be taken. § 222. Failure to file brief. — The appellant is given sixty days after his appeal is submitted in which to file a brief on Mutual, etc., Co. V. Frankel, 151 Ind. St. Clair, 144 Ind. 363; Gregory v. 534. Smith, 139 Ind. 48 ; Bozeman v. Cale, ' Section 152, ante. 139 Ind. 187; John V. Farwell Co. v. " Sections 152, 156, ante. Newman, 17 Ind. App. 649. ' Sections 163, 164, ante. ^ Michigan Mutual, etc., Co. v. Fran- * Michigan Mutual, etc., Co. V.Fran- kel, 151 Ind. 534. kel, 151 Ind. 534; Crist v. Wayne, ''Vordernaark v. Wilkinson, 142 Ind. etc., Assn., 151 Ind. 245; O'Mara v. 142; Abshire v. Williamson, 149 Ind. Wabash R. Co., 150 Ind. 648 ; Abshire 248. V.Williamson, 149 Ind. 248; Cole v. ' O'Mara v. Wabash E. Co., 150 Ind. Franks, 147 Ind. 281 ; Shuman v. Col- 648. lis, 144 Ind. 333 ; Midland E. Co. v. ^ -^^i^ 35 Sup_ qi_ . section 160, ante. 326 APPELLATE PRACTICE. § 223 the merits of the case, and if a brief is not filed within that time the rules of court require that the clerk shall enter an order dismissing the appeal.' This rule is mandatory, and if appellant's brief is not filed within sixty days after submission, it becomes the imperative duty of the clerk to enter an order dismissing the appeal.^ It is not competent for the parties to waive compliance with this rule, and the clerk has no option as to whether he shall obey it.° The published reports mention but few of the many appeals that have been dismissed under this rule, since no opinion is written when a case is dismissed by the clerk. The time for filing a brief in order to avoid dismissal dates from the time the cause is submitted, which is usually thirty days after the service of notice is fully completed,' in civil cases. But ap- peals in criminal cases are usually submitted on the day that the transcript is filed, ° and the appellant's brief must be filed within sixty days from that time or his appeal will be dis- missed. It is possible to avoid the dismissal of an appeal under this rule by applying for and obtaining an extension of time in which to file a brief before the expiration of sixty days from the date of submission,^ but in no other way. Such an extension of time will not be granted after the penalty of dis- missal has been incurred.' But a dismissal for this cause dobs not preclude the appellant from taking another appeal, if the time for appealing has not expired. § 223. Failure to g:ive security foi* costs. — "When a non- resident appellant is ordered by the court to give security for 1 Rule 21 Sup. Ct. Ind. 542 ; Elliott's App. Proc, § 449; ' Manns Bros., etc., Co. v. Temple- section 179, ante. ton, 149 Ind. 706. * Section 178, ante. » Manna Bros. v. Templeton, 149 = Eule 19 Sup. Ct. Ind. 706, citing Shulties v. Keiser, 95 « Smith v. Wells, etc., Co., 144 Ind. Ind. 159; Murray v. Williamson, 79 266; Cline v. Gould, 17 Ind. App. 647. Ind. 287; Stephens v. Stephens, 51 'Cline v. Gould, 17 Ind. App. 647. § 224 DISMISSAL OF AN APPEAL. 327 the costs of his appeal, and he fails to give such security within the time limited by the court, his appeal will be dis- missed.' The dismissal of an appeal for this cause does not preclude a party from taking a second appeal, but if he does so, he must then give the required security. If the appellant has failed to give an appeal bond in an appeal in which such a bond is essential, the appeal may be dismissed for that cause.* But if a bond has been filed and is merely defective or the sureties are insufficient, the appellant may give a new bond within a reasonable time to be fixed by the court.' . § 224. Failure to file transcript within time allowed. — Filing a transcript of the record below in the court to which the appeal is taken is an essential step in taking any appeal,' and unless the transcript is filed before the expiration of the longest time allowed for perfecting an appeal of any. kind from that judgment the appeal must be dismissed.' Thus, any ap- peal of a civil case must be dismissed unless the transcript is filed before the expiration of a year from the date of judgment, ° because no appeal in such cases is authorized after the expira- tion of a year. In like manner an appeal from an order ap- pointing a receiver will be dismissed unless the transcript is filed within ten days after the order is made,' because that is the extreme limit of time for taking such an appeal.* But where a party who has saved proper exceptions to such an or- der forfeits his right to appeal from it by failing to perfect his ' Bale 35 Sup. Ot. ; section 207, ante. « Smythe v. Boswell, 117 Ind. 365 ; ^ Section 169, ante. Wright v. Manns, 111 Ind. 422 ; John- ' R. S. 1894, § 669. son v. Stephenson, 104 Ind. 368; * Sections 14, 121, ante. Joyce v. Dickey, 104 Ind. 183 ; Day v. ^ Smythe v. Boswell, 117 Ind. 365 ; School City of Huntington, 78 Ind. Wright V. Manns, 111 Ind. 422 ; John- 280 ; Harahman v. Armstrong, 43 Ind. son V. Stephenson, 104 Ind. 368; Co- 126; State v. Edwards, 11 Ind. App. burn V. Whitaker, etc., Co., 12 Ind. 226. App. 340; State v. Edwards, 11 Ind. 'Vance v. Schayfer, ,76 Ind. 194; App. 226; Bollenbacher v.Whisnand, vFlory v. Wilson, 83 Ind. 391. 148 Ind. 377 ; Galentine v. Wood, 137 » Section 103, ante. Ind. 532 ; Flory v. Wilson, 83 Ind. 391. 328 APPELLATE PKACTICE. § 224 appeal in time, his exceptions may be made available in an ap- peal from the final judgment.' Where an appeal is taken from a decision growing out of any matter connected with a decedent's estate, and the transcript is not filed within one hundred days after the decision is rendered^ (a proper appeal bond having been duly filed), the appeal must be dismissed," because one hundred days marks the ex- treme limit of time allowed for perfecting such an appeal, ex- cept where special leave is obtained to take an appeal within one year, and such an extension of time is only granted on proper and seasonable application after notice to the opposite party.' Where an appeal is taken from an interlocutory order, the transcript must be filed within thirty days after the appeal bond is filed,* or the appeal will be dismissed and a second ap- peal can not be taken. The criminal code * fixes the time for filing the transcript of an appeal in a criminal case at ninety days after the appeal is taken by the service of notice; and un- less it is filed within that time the appeal will be dismissed,' though the appellant still has a right to take a second appeal — ithin a year after final judgment.' The statute' and rules of court '° require that the transcript of a term appeal shall be filed within sixty days after the ap- peal bond is filed, and the rules of court" require that the transcript of an appeal which is taken by the service of notice below shall be filed within sixty days after notice is served; and on failure to file the transcript within such time the appeal in either case will be deemed to have been abandoned.'^ But a ' Buchanan v. Berkshire, etc., Co., « E. S. 1894, § 1958. 96 Ind. 510; section 103, ante. 'State v. Quick, 73 Ind. 147; Price * Acts 1899, p. 397, amending § 2610, v. State, 74 Ind. 553 ; Farrell v. State, R. S. 1894. 85 Ind. 221. But see Beggs v. State, 'Bollenbaeher v. Whisnand, 148 122 Ind. 54. Ind. 377; Galentine v. Wood, 137 'R. S. 1894, § 1963. Ind. 532; Webb v. Simpson, 105 Ind. ^r g i894, § 650. 327. '" Rule 1 Sup. Ct. * Sections 97, 104, 'ante. " Rule 2 Sup. Ot. »R. S. 1894, §§659, 660; Miller v. '^ Rules 1, 2 Sup. Ct. Burket, 132 Ind. 469; Natcher v. Natcher, Ind. , Oct. 31, 1899. § 225 DISMISSAL OF AN APPEAL. 329 failure to comply M'ith these rules by filing the transcript within the required sixty days will not lead to the dismissal of an appeal taken by filing the transcript afterward, but will only impose on the appellant the , necessity of giving notice and taking other steps to perfect his appeal as a vacation ap- peal.' Where part of an appeal is taken in time and part is barred, as where the transcript of an appeal in an action con- cerning real estate was filed less than a year after appellant's motion for a new trial as of right was overruled, but more than 'a year after judgment was pronounced, and a motion for a new trial for cause had been overruled, the part of the appeal which is barred will be dismissed and the other por- tion decided/ § 225. Failure to numlber pages and lines and make mar- ginal notes. — Carelessness in the preparation of the transcript almost always prevents an appellant from securing considera- tion of one or more of the points relied on to reverse the judg- ment appealed from, but such carelessness may cause the ap- peal to be dismissed.^ A rule of court requires that the tran- script be bound and provided with an index and that the pages of the transcript and the lines of each page shall be numbered, and«that marginal notes shall be written on the margin of each page indicating what part of the transcript that page contains.' This rule does not prescribe any penalty for its violation, and it seems to rest in the discretion of the court whether a failure to comply with it shall be punished by setting the submission aside,' or by causing the marginal notes to be supplied at the expense of the appellant,' or by dismissing the appeal. The latter course has been followed in many of the later cases,' ' R. S. 1894, § 651 ; McKinney v. Armstrong, 42 Ind. 475 ; State v. Hartman, 143 Ind. 224; Holloran v. Klaas, 42 Ind. 506. Midland R. Co., 129 Ind. 274; Mich- « Wheeler v. Barr, 6 Ind. App. 530; igan Mutual, etc., Co. v. Frankel, 151 Elliott's App. Proc, § 204. Ind. 534. r Egan v. Ohio, etc., R.'Co., 138 Ind. 'Atkinson V.Williams, 151 Ind. 431. 274; Kiley v. Perrin, 69 Ind. 387; ' Section 119, anfe. Bowman v. Simpson, 68 Ind. 229; * Rule 3 Sup. Ct. Beigh v. Smarr, 62 Ind. 400 ; Otis v. 'O'Neil V. Chandler, 42 Ind. 471; Weiss, — Ind. App. — , 53 N. E. Rhodes V. Piper, 42 Ind. 474; Etterv. Rep. 428; Harrod v. State, — Ind. 330 APPELLATE PRACTICE. § 226 which declare that it is not only the right but the duty of the court to enforce a compliance with this rule.' Many cases have been dismissed for failure to comply with this rule which are not mentioned by the printed reports, be- cause no opinions were filed when the orders dismissing them were made. But where prompt application is made for leave to supply the missing notes when a motion to dismiss for lack of them is filed, permission to correct the transcript is usually granted; and where the numbers and marginal notes are sup- plied before the motion to dismiss is ruled on, a dismissal will usually be refused.^ Many of the older cases held that com- pliance with this rule could be waived by the appellee, and that agreeing to submit the case,' or filing a brief discussing the merits without offering any objection on account of the defective condition of the record,' was such a waiver. But the later opinions indicate that the rule is considered to have been made for the convenience of the court, and that a dis- missal for failure to comply with it may be entered by the court o.f its own motion.' But the failure of the appellant to bring the evidence into the record or to make his record com- plete in other particulars is not usually cause for dismissing an appeal/ though it frequently leads to the affirmance of the judgment. § 226. Failure to make assignment of errors contain full names of all parties. — The assignment of errors must contain the full names of all the parties,' and unless it does the appeal will be dismissed.' This means the full name of each party to App. — , 53 K E. Rep. 777 ; Babcock ^ Egan v. Ohio, etc., R. Co., 138 Ind. V. Johnson, — Ind. App. — , 53 274; Harrod v. State, — Ind. — , N. E. Rep. 241. 53 N. E. Rep. 777; Otis v. Weiss, — ' Smith V. State, 137 Ind. 198 ; Smith Ind. App. — , 53 N. E. Rep. 428. V. State, 140 Ind. 340; Egan v. Ohio, « Cook Brewing Co. v. Ball, — -Ind. etc., R. Co., 138 Ind. 274. App. — , 52 N. E. Rep. 1002. ^ Smith V. State, 137 Ind. 198 ; Smith ' Rule 6 Sup. Ct. V. State, 140 Ind. 340. «Barnett v. Bromley, etc., Co., 149 'Anderson, etc., Assn. v. Thomp- Ind. 606; McClure v. Shelburn Coal son, 88 Ind. 405. Co., 147 Ind. 119; Big Four, etc., * Bass V. Doerman, 112 Ind. 390. Assn. v. Olcott, 146 Ind. 176 ; Hutts v. § 227 DISMISSAL OF AN APPEAL. 331 the judgment appealed from, and the surname alone is not suf- ficient.' There is no exception to this rule, though it does not require that the assignment shall contain the names of parties to the action below who were not parties to the judgment from which the appeal is taken. ^ The names of parties are usually set out in the title to the assignment of errors; but if they ap- pear in the body of the assignment it is sufficient.' The names of the appellants should precede the names of the appellees.* But an appeal would probably not be dismissed on account of the improper arrangement of the names, if all the parties had been served with notice in the relation which they properly bore to the appeal.' § 227. Acceptance of benefit of Judgment. — The civil code forbids a party obtaining judgment to take an appeal after receiving any money paid or collected thereon,^ and the courts extend the rule to forbid an appeal by any party who has accepted a benefit based on the legality of the judgment ap- pealed from.' If it is shown that an appellant has accepted any such benefit, whether of money or otherwise, his appeal will be dismissed.' The fact that appellant has accepted such benefit may be shown to the supreme or appellate court by a verified plea or motion, supported by afiidavits;' or,~ in case the judgment below has been receipted, by a certiorari to bring up the receipted record.'" But in whatever way the appellant's Martin, 141 Ind. 701 ; Eosenbower v. Manlove v. State, — Ind. — , 53 N.E. Sehuetz, 141 Ind. 44; State V Hodgin, Eep. 385 ; Sonntag v. Klee, 148 Ind. 139 Ind. 498; Gourley v. Embree, 536; McGrew v. Grayston, 144 Ind. 137 Ind. 82; City of South Bend v. 165; Garner v. Garner, 38 Ind. 139; Thompson, 19 Ind. App. 19; section Stephens v. Stephens, 51 Ind. 542; 126, ante. Sterne v. Vert, 108 Ind. 232 ; Clark v. 1 Burke v. State, 47 Ind. 528. Wright, 67 Ind. 224. ' Section 126, ante. ' Manlove v. State, — Ind. — , 53 N. ' Ferguson v. Despo, 8 Ind. App. E. Bep. 385 ; Williams v. Richards, 152 ^23. Ind. 528; Sonntag v. Klee, 148 Ind. ^Barnett v. Bromley, etc., Co., 149 536; McGrew v. Grayston, 144 Ind. Ind. 606. 165. = See Thoma v. State, 86 Ind. 182. " Clark v. Wright, 67 Ind. 224 ; Hol- *R. S. 1894, §644. man v. Stannard, 14 Ind. App. 146; 'Section 112, ante. section 211, ante. ' Williams V. Richards, 152 Ind. 528 ; 332 APPELLATE PKACTICE. § 228 acceptance of the benefit of the judgment is shown, it will result in a dismissal of the appeal; for a party will not be per- mitted to accept a benefit of any kind based on the legality of an adjudication and thereaftet be hear-d to complain that it is § 228. Person without real interest can not maintain ap- peal. — An appeal can only be maintained by a party having a legal interest in the judgment appealed from;° and where a party who has no legal interest in the judgment appealed from attempts to prosecute an appeal, his appeal will be dismissed,' Where the appellant is not a party to a judgment, and his in- terest is not shown, he will be presumed to have no interest therein;' and where his lack of interest is not apparent on a mere inspection of the record, the fact that he has no inter- est,° or has ceased to have any -interest, in the controversy may be shown by a verified plea or motion.* But where a plaintiff voluntarily names a party as a defendant to his ac- tion, he can not successfully deny the right of that party to appeal from the judgment which he may recover.' The su- preme and appellate courts do not sit for the purpose of deter- mining abstract questions of law that may be presented to them,' but only for the purpose of deciding actual controver- sies between real parties in interest.' § 229. Appeal can not be inaintained in name of dead per- son. — An appeal taken in the name of a dead person will be stricken from the docket" as soon as the court is apprised of > Manlove v. State, — Ind. — , 53 N. ^ Smith v. Junction E. Co., 29 Ind. E. Rep. 385; Williams v. Eichards, 546. 152 Ind. 528, and authorities cited. ° Stauffer v. Salamonie, etc., Co., 147 ^ Section 142, ante. Ind. 71. See State v. Mount, 151 Ind. ' Case V . Case, 137 Ind. 526 ; Stauffer 679. V. Salamonie, etc., Co., 147 Ind. 71; 'Renner v. Eoss, 111 Ind. 269; sec- State V. Mount, 151 Ind. 679; Jager tion 142, ante. V. Doherty, 61 Ind. 528 ; Pierse v. ' State v. Mount, 151 Ind. 679 ; Par- West, 29 Ind. 266; Smith v. Junction ker v. State, 133 Ind. 178. E. Co., 29 Ind. 546; Parker v. State, » Pierse v. West, 29 Ind. 266; Smith 133 Ind. 178. v. Junction E. Co., 29 Ind. 546. * Section 142, ante. " Taylor v. Elliott, 53 Ind.441 ; Tay- § 230 DISMISSAL OF AN APPEAL. 333 that fact, though all the rights of such person may have vested in the person by whom the appeal is being prosecuted in the name of such deceased party.' If the fact that appellant was dead before the appeal was taken is not discovered by the court until after the appeal has been decided, the judgment on appeal will be set aside, and the opinion of the court recalled, and the cause will then be stricken from the docket.^ Such an attempted appeal is an absolute nullity and does not even give the court jurisdiction to permit the proper parties to be substi- tuted.' Where a party named as appellee is dead, of course the court can not acquire jurisdiction over him, but the appel- lant might be granted the privilege of perfecting his appeal by naming the proper parties as appellees in his assignment of errors and serving them with notice, if seasonable application were made within the time allowed for taking an appeal in proper form. But where the deceased party only has been named as appellee, and the time allowed for taking an appeal has expired, the cause will be stricken from the docket.' § 230. Waiver of objections by taking any steps in appeal. — The appellant's failure to serve notice of appeal on a party to the judgment may be waived by his voluntary appearance, ° since the only purpose of notice is to bring the parties into court. The failure of a non-resident appellant to give security for costs is waived by a submission of the cause before security is demanded.* The general trend of authority is to the effect that if a transcript is so well prepared, by making marginal notes and numbering pages and lines, that the court can un- derstand the references to it in the briefs of counsel, or is so lor V. Elliott, 52 Ind. 588; Moore v. 'Doble v. Brown, 20 Ind. App. 12; Slack, 140 Ind. 38. See Branham v. section 145, ante. Johnson, 62 Ind. 259. ^ Lowe v. Turpie, 147 Ind. 652; ^Taylorv. Elliott, 52 Ind. 588; Tay- Eorsythe v. City of Hammond, 142 lor V. Elliott, 53 Ind. 441. Ind. 505 ; Schmidt v. Wright, 88 Ind. ^Taylor v. Elliott, 52 Ind. 588; Tay- 56; sections 163, 164, ante. lor V. ElHott, 58 Ind. 441. « Rule 35 Sup. Ct. ^Moore v. Slack, 140 Ind. 38; Bran- ham V. Johnson, 62 Ind. 259. 334 APPELLATE PRACTICE. § 231 short that no index is needed in considering it," the appellant's failure to file a motion to dismiss the appeal until after he has prepared and filed his brief, and has ceased to have any further necessity for aid in referring to the transcript, is a waiver of his right to insist on a dismissal of the appeal for failure to com- ply with the rules of court in this respect; but it is still within the discretion of the court to dismiss the appeal for lack of marginal notes,^ or to affirm the judgment without considering the points which appellant attempts to raise. ^ All preliminary objections of a technical character are waived by the appellee's appearance without objection.* But the lack of a judgment from which an appeal can be taken,, the failure to file the tran- script within the time allowed for taking an appeal, the ac- ceptance by appellant of money paid on the judgment appealed from, the lack of any interest of appellant in, the subject of the appeal, and the fact that appellant is dead, go to the question of the jurisdiction of the court over the appeal and can not be waived by the appellee. § 231. Motion to dismiss appeal. — The existence of cause for dismissing an appeal must usually be brought to the atten- tion of the court by a motion to dismiss, since the court de- pends on the attorneys for information as to what parts of the record present subjects for consideration, and seldom examines the record to discover and decide, questions not made in the briefs. A motion to dismiss must be in writing,* and must state specifically the grounds on which it is based." If the mo- tion is founded on matters of fact that are not apparent on the face of the record, such as the fact that the appellant has ac- cepted a benefit from the judgment,' it must be supported -by affidavit.' It is always best to verify such a motion. A motion -Bass V. Doerman, 112 Ind. 390; ^Eule 13 Sup. Ct. ; Elliott's App. Anderson, etc., Assn. v. Thompson, Proc, § 532. 88 Ind. 405. ' Williams v. Richards, 152 Ind. 528 ; ^ Section 225, ante. Manlove v. State, — Ind. — , 53 N. ' Alfred Shrimpton, etc., v. Keyes, E. Rep. 385 ; Sonntag v. Klee, 148 Ind. 17 Ind. App. 305. 536 ; McGrew v. Grayston, 144 Ind. * Section 204, ante. 165. s Rule 13 Sup. Ot. «Rule 12 Sup. Ct. § 232 DISMISSAL OF AN APPEAL. 335 to dismiss can properly be made only by a party to the appeal/ and if made by a stranger it can only have the effect of calling the attention of the court to defects for which it may dismiss the appeal on its own motion. The general rules governing the presentation of joint pleas and motions apply to a motion of this kind and a joint motion by two or more appellees will avail nothing unless all parties joining in the motion are enti- tled to have the appeal dismissed.^ Ten days' notice of the motion' must be given to all parties interested/ or the motion will be overruled without consideration .' Notice of such a mo- tion maybe served either on the appellant or his attorney/ and is usually served on the attorney. Briefs may be filed in support of a motion and in opposition to it/ and where the motion is based on facts shown by affidavits, counter affidavits may usually be filed. The motion will be taken up and decided by the court on the papers and briefs filed with the clerk' with- out oral argument.' § 232. Dismissal by appellant. — An appellant is usually permitted to dismiss his appeal if he wishes to do so, but such a dismissal is not a matter of course. A dismissal is only per- mitted on a formal motion, after notice to the appellee, as in ^pase of other motions," and if the appellee objects to a dis- missal of the appeal, and it is apparent that such a dismissal would work a manifest injustice to him, the motion to dismiss will be overruled." If the appellee has assigned cross-errors, a dismissal by the appellant will not prevent the court from considering and deciding the questions thereby presented, to the same extent as if the appellee had taken an independent appeal.'^ ' Elliott's App. Proc, § 531. « Rule 15 Sup. Ct. ' State V. Cunningham, 101 Ind. 461. 'Section 193, ante. 'Rule- 7 Sup. Ct. '"Section 167, ante. *Rule 16 Sup. Ct. " Elfiott's App. Proc, § 534. 'Diok V. Mullins, 128 Ind. 365. " Home v. Harness, 18 Ind. App. "Elliott's App. Proc, § 533. 214; Feder v. Field. 117 Ind. 386. 'Rule li Sup. Ct. 336 APPELLATE PKACTICE. § 233 § 233. Reinstatement of appeal erroneously dismissed. — That the court has authority to reinstate an appeal which has been improperly dismissed is well established.' The courts doubtless have inherent power to grant such relief;* but whether this be true or not, the statute expressly authorizes the reinstatement of an appeal at the term when it was dis- missed or the next term, upon good cause being shown.' This authority has been frequently exercised.' But the reinstate- ment is usually made on motion, and no mention of the fact is found in. the published reports. The reinstatement of a cause rests largely in the discretion of the court, ^ and will never be permitted except upon a satisfactory showing of rea- sons why the dismissal ought never to have been entered." The fact that appellant has removed the cause for which the dismissal was entered since the appeal was dismissed is not a ■ reason for reinstating it.' A motion to reinstate an appeal is a special motion, and must, therefore, be in writing, and must state specifically the grounds on which it is based,' which grounds must be shown by affidavit to exist.' The statements in the affidavits must set forth clearly the reasons why the dismissal was erroneous. Notice to the adverse party is essential" as in case of other motions." After a party has been notified of the motion to reinstate, he is bound to take notice of the disposition that is made of the motion, and, in case the appeal is reinstated, he is bound by the judgment pronounced therein to the same extent as if the appeal had never been dismissed.'^ If the motion can not be considered on the day appointed, it will be taken up as soon afterward as may be convenient," and no additional notice is necessary. 1 Elliott's App. Proc , § 537. 'Egan v. Ohio, etc., E. Co., 138 Ind. ' Elliott's App. Proc.,. § 537. 274. » R. 8. 1894, § 669. » Rule 13 Sup. Ct. * Fader v. Field, 117 Tnd. 386. ' Rule 12 Sup. Ot. ^Elliott's App Proc, § 537. "Rule 15 Sup. a.; Elliott's App. "Cline V. Gould, 17 Ind. App. 647; Proc, § 539. Egan V. Ohio, etc., R. Co., 138 Ind. " Section 167, anfe. 274; Alexander V. Alexander, 9 Ind. ■'^ Heaton v. Knowlton, 65 Ind. 255. App. 48. » Rule 15 Sup. Ct. § 234 DISMISSAL OF AN APPEAL. 337 The motion will be decided by the court on the papers and briefs filed with the clerk without oral argument.' § 234. Withdrawal of transcript for second appeal. — When an appeal is dismissed before the expiration of the time within which a second appeal may be taken, the party frequently withdraws the record from the files of the supreme or appellate court in order that he may use the same transcript in taking a new appeal and avoid the expense of procuring another tran- script. But the rules of court forbid the withdrawal of a transcript from the files of either court to be used in another appeal, or for any other purpose whatever, without special leave of the court in term, or of a judge thereof in vacation.'' The withdrawal of the transcript of a cause that has been dis- missed is not an absolute right, and the court in its discretion may refuse to permit its withdrawal.' The application for leave to withdraw a record must be made by a written petition setting' up the purpose for which the record is wanted, which must be verified by affidavit.* Unless the petition states a cause for withdrawing the record which the court or the judge to whom it is presented deems sufficient, it will be overruled. But where the petitioner still has a right to take an appeal, and the transcript on file is such that its use may save him . some expense in perfecting an appeal, and the petition shows that the transcript is wanted for the purpose of taking another appeal, its withdrawal is usually permitted. ' Rules 14, 15 Sup. Ct. ' Elliott's App. Proc, § 536. ' Rules 31, 39 Sup. Ct. « Rule 39 Sup. a. 22 — App. Practice. CHAPTER 19. CONSIDERATION AND DECISION OF CASES. 1 235. Distribution of cases. 236. Abstracts of the record. (New rule.) 237. Consideration of appeal. 238. Preparation of opinions. 239. When judgment on appeal be- comes effective. 240. By whom petition for rehear- ing may be presented. 241. Time and manner of asking for a rehearing. 242. For what rehearing may be asked. 243. Form of petition for rehearing. 244. Brief on petition for rehearing. § 245. Modification of opinion or mandate. 246. Effect of granting a rehearing. 247. When second petition will be entertained. 248. Certifying opinion to lower court. 249. Authority of appellate tribunal over future action of trial court. 250. Law of the case. 251. AflBrmance or reversal on con- dition. 252. AflBrmance or reversal in part. 353. Publication and authority of opinions. § 235. Distribution of cases. — We have seen that the su- preme and appellate courts do not consider the merits of ap- peals until after the causes are submitted;' and that the appel- lant is allowed sixty days/ and the appellee ninety days,' after the date of submission in which to file briefs, and that the appellant is also allowed fifteen days to file a reply brief.* But as soon as a cause is prepared for consideration by the fil- ing of the several briefs, it is "distributed." That is, a copy of each brief and the abstract of the record is put into the hands of each judge.' So far as they are prepared for con- sideration when the court is ready to take them up, causes are distributed in the order in which they were submitted. ° It fre- ' Section 178, ante. ^ Section 179, ante. ' Section 190, ante. * Section 191, ante. 5 Eule 32 Sup. Ct. ^ Section 196, ante. (338) § 236' CONSIDERATION AND DECISION OF CASES. 339 quently happens, a cause is not prepared for decision by the time it is reached by the court and its distribution is delayed. If matters are disclosed by the abstracts and briefs which make a careful examination of the transcript necessary, the cause may be assigned to a particular judge to make the necessary examination. And after a decision has been agreed on the case is assigned to some judge for the preparation of an opinion. Nobody but members of the court is permitted to know which judge has a particular cause. ^ All briefs must be filed and all questions in the appeal must be raised before the cause is dis- tributed,^ and an application for oral argument must be made before that time.' After a cause, is distributed the papers can only be taken out for a cause which the court deems sufficient upon presentation of a verified petition setting forth such causQ. Since no additional briefs will be received on the principal hearing,* and a petition for rehearing must be confined to points presented by the original briefs,' there are few causes for which the papers may be taken out after distribution. Under the former practice, when a single copy of the record and only one copy of each brief were usually furnished, each case was distributed to a single judge for special investigation, and the decision of the court was necessarily based, to some extent, on his report as to the questions presented. But where abstracts of the record and briefs are furnished for all the judges, cases are not assigned to any particular judge until they, have been decided, and then only for the preparation of an opinion. § 236. Abstracts of the record — (Nevprule). — A rule of court recently adopted provides for the preparation of an abstract of the record, and for furnishing a copy to each judge, so that each may give equal consideration to the questions involved in the appeal.* Only such parts of the record need be included in. this abstract as the parties agree are necessary to fully exhibit the points in controversy. This abstract should be filed ' Section 57, ante. * Rule 21 Sup. Ct. ' Section 11, ante. » Rule 22 Sup. Ct. See 242, post. ' Section 193, ante. « Rule 22 Sup. Ct. 340 APPELLATE PRACTICE. § 237 with appellant's briefs and will be accepted as correct and suf- ficient for the consideration of all questions involved in the appeal, except so far as the appellee may point out omissions or inaccuracies.' The consideration of a case in this manner can not be secured without furnishing eight copies of an ab- stract of the parts of the record upon which the appellant re- lies for a reversal of the judgment, either printed or neatly type-written, and eight copies of appellant's brief .^ § 237. Consideration of appeal. — After a cause has been distributed, or has otherwise reached the court, the judges begin the consideration of the questions involved. The time required for this consideration is of uncertain length. If the questions involved in the appeal are simple, and are fully covered by direct authority, the court may agree immediately and a de- cision may be handed down within a few days after distribu- tion ; and even though the questions are difficult, and the judges are unable to agree, an immediate decision may be ren- dered if some important public question demanding immediate determination is involved." But where there is no such de- mand for an immediate decision, an appeal in the decision of which the judges are unable to agree will be held for further examination and discussion until it becomes apparent that a unanimous decision can not be pronounced. Even though all the judges agree as to whether the particular case shall be reversed or affirmed, a decision must be withheld if they are unable to agree as to the language in which the law shall be declared in deciding it. Cases have occasionally been held for a year or more after distribution for this reason. But when a decision is delayed, it is more often because the attor- ney on one side or the other has interfered with the considera- tion of the case by taking out the papers or petitioning for an oral argument. Under the new rules of court, it is more dif- ' Rule 23 Sup. Ct. placed on the official ballot at an elec- * Rules 21, 25 Sup. Ct. tion to be held about three weeks after 'The case of State v. Mount, 151 the case was taken up, and an imme- Ind. 679, illustrates this statement, diate decision was pronounced by a The question there involved was divided court. whether certain names should be § 238 CONSIDERATION AND DECISION OF CASES. 341 ficult to delay a cause ia this manner than was formerly the case.' The consideration and decision of cases by the judges is all done in private consultation when none but members of the court are present. § 238. Preparation of opinions. — After a decision has been agreed on, the case is assigned to one of the judges for the preparation of an opinion. After his opinion is written it is read to the other judges for their approval before it is filed, and if not approved by the other judges, is usually laid aside for further consideration. Sometimes a case is held several months after an opinion is written, while the judges endeavor to agree on the declarations of law that it shall contain. After an opinion is prepared to the satisfaction of a majority of the court, any judge who dissents or who is dissatisfied with the opinion is given an opportunity to prepare a dissenting or con- curring opinion setting forth his individual views. Such opinion is also required to be read to the assembled judges be- fore it is filed. No opinion has any authority as the opinion of the court until it is actually filed. § 239. When Judgment on appeal becomes effective. — As soon as an opinion is filed, the declarations of law which it contains become the latest and best evidence of what the law is, ^ and as such are binding on all other courts and inferior tribunals throughout the state, ^ though the decision is sub- ject to be set aside by a subsequent decision of the court on re- hearing,' or upon the presentation of the same question in an- other case.^ But the iudgment does not always immediately become effective in the cause in which it is pronounced. The supreme and appellate courts do not execute their own judg- ments, but execution issues from the trial court on the judg- f ^Eules2630,Sup. Ot. * First Nat'l Bank v. First Nat'l ^ See Center S. Tp. v. State, 150 Bank, 76 Ind. 561, 572. Ind. 168; Haskett v. Maxey, 134 Ind. ^ Board, etc., v. Allman, 142 Ind. 182. 573. 'See E. S. 1894, § 1362; Elliott's App. Proc, § 562. 342 APPELLATE PRACTICE. § 240 ment of that court which has been affirmed on appeal, or which is entered in obedience to an order of. the court to which an appeal was taken.' Judgments on appeal in crim- inal cases are certified to the trial court immediately and be- come effective at once.^ But in civil cases the opinion is not usually certified to the lower court until the parties have had an opportunity to petition for a rehearing and the petition has been disposed of in case one is presented.' Until the opinion is certified down the cause repains in the same condi- tion as when the appeal was first taken. It has been held, however, by a trial court, that it had authority to proceed in a case after the dismissal of an appeal, upon receiving infor- mation that the appeal was dismissed by the filing of a certi- fied copy of the opinion and judgment dismissing it in the trial court.' The decision cited was based on the ground that after an appeal is dismissed the cause can no longer be considered as within the jurisdiction of the supreme court, and the trial court must, therefore, have authority to proceed. § 240. By whom petition for rehearing may be presented. — Any party to a judgment on appeal, who is dissatisfied with it, may petition for a rehearing, or for the modification of the judgment or mandate of the court. ° Even where the judgment is reversed, the appellant may petition for a rehearing on the questions involved, which he believes to have been erroneously decided against him, or he may move to mo'dify the mandate so as to order that judgment be rendered in his favor, in- stead of ordering that a new trial shall be granted.* But no party can successfully petition for a rehearing on account of any error in the judgment, except such as injuriously affected his own rights.' And where all the parties have waived the ' R. S. 1894, §§ 679, 1350, 1968, 1969. ^ E. S. 1894, §§ 674, 1966. 2 R. S. 1894, §1965. « Pittsburgh, etc., R. Co. v. Ma- ' Section 248, post. honey, 148 Ind. 196, 207. * So held in the case of Williams v. ' Elliott's App. Proc, § 654 ; chapter Richards, in the Marion Superior 20, post. Court, after'an appeal had been dis- missed, as reported in 152 Ind. 528. L CONSIDERATION AND DECISION OP CASES. 343 t to petition for a rehearing/ or there has ceased to be 9,ny controversy between the parties/ an amicus curias can not essfully petition for a rehearing to secure a correction of t he deems an erroneous declaration of law by the court/ lems clear, however, that the court has authority to cor- an evident error in its record on its own motion, upon be- ad vised that the mistake was committed.* But no one ex- parties in interest has any right to demand that it shall 241. Time and manner of asking for a rehearing. — A re- •ing may be applied for at any time within sixty days after determination of a cause on appeal, whether it is reversed Sirmed, in whole or in part, or the appeal is dismissed.' ile the statute does not expressly so provide, it is generally . to forbid the granting of a rehearing unless the petition led within sixty days,* and it has been the uniform prac- to refuse to consider any petitions not presented within time. The rules of court recognize this limitation,' and lire a return of the record with the petitioner's brief within same period.* This time is computed by excluding the on which judgment was rendered, and including the day (Phich the petition is filed.' The court undoubtedly, has lority to correct an error in its record after the time for fil- a petition for a rehearing has expired," and this power has e than once been exercised." But, except where the filing of tition was prevented by an unavoidable accident, or by the d of the opposite party, and the petitioner is without fault,'^ arker v. State, 13^ Ind. 178, 215. ' Eule 29 Sup. Ct. ;ate v. Mount, 151 Ind. 679. See ' Section 244, post. :hester, etc., Co. v. Veal, 145 Ind. ^B. S. 1894, § 1304; Elliott's App. Proc, § 552. arker v. State, 133 Ind. 178, 215; i" Elliott's App. Proc, § 550. I V. Mount, 151 Ind. 679. " Board, etc.,v. Brown, 14 Ind. 191 ; arker v. State, 133 Ind. 178, 216. Taylor v. Elliott, 52 Ind. 588 ; Taylor . S. 1894, §§ 674, 1966. v. Elliott, 53 Ind. 441 ; Orowell v. oard, etc., V. Brown, 14 Ind. 191; Jaqua, 15 N. E. Rep. 242, cited in er V. State, 133 Ind. 178, 216; Parker v. State, 133 Ind. 178, 216. B V. Bowers, 77 Ind. 211. '^ Elliott's App. Proc, § 552. 344 APPELLATE PRACTICE. § 242 the court will not reopen the cause for consideration and determination of the questions involved in the appeal. A re- hearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed to be erroneous,' and must be accompanied by a brief.^ When a petition for rehearing is filed, it has the effect of postponing the time for certifying down the opinion of the court until the petition is disposed of.' § 242. For what rehearing may be asked. — A party may ask for a rehearing on any point that was duly presented for decision at the original hearing and not waived by n, failure to discuss it in the briefs, but a rehearing is very seldom, if ever, granted on a point which was given full consideration on the first hearing. It is not unusual for the court, in overruling a petition for a rehearing, to say that the questions presented were fully considered and determined in the original hearing, and no reason is presented why the decision then reached should be changed.' But if the court has evidently overlooked some point made in the petitioner's original brief, which is be- lieved to materially modify the rights of the parties under the law,° or has taken an unexpected turn and declared the law to be spmething which, if followed to its final consequences, would be manifest injustice,^ a rehearing may probably be obtained on proper petition for that cause. When a point has been squarely decided, a rehearing should not be asked on that point unless the party is able to present an entirely new argu- ment or additional and stronger authorities than were con- sidered by the court in making its first decision. A party has a right to present in his brief on petition for a " Rule 37 Sup. Ct. *Sievers v. Peters, etc., Co., 151 '^ Section 244, posJ. Ind. 642, 664; Travelers' Ins. Co. v. 'Elliott's App. Proc, § 551; E. S. Kent, 151 Ind. 349, 355. 1894, §674. In the case of Krenzer ^Spacyv. Evans, 152 Ind. 431, super- V. Pittsburgh, etc., E. Co., 151 Ind. seding opinion in 48 N. E. Eep. 355. 587, the opinion was not certified down ^ Manufacturers', etc., Co. v. Leslie, until the petition for a rehearing was ^- Ind. App. — , 51 N. E. Eep. 510, overruled, thirty-one months after the superseding opinion in 49 N. E. Eep. original opinion was filed. 946, § 242 CONSIDERATION AND DECISION OF CASES. 345 rehearing such arguments or authorities in support of points properly made in the original briefs/ if for any reason he failed to present them at the first hearing. But unless a point was presented for decision at the original hearing, it will not be considered in determining whether a rehearing ought to be granted/ whether the failure to present it was because the party neglected to discuss such points in his brief/ or because they were not shown by the record. A party is entitled to a full and fair hearing of his appeal, but if he is given such a hear- ing and neglects to present his case, it is liis own fault, and he is entitled to no relief from the consequences; therefore, a rehearing will not be granted to enable a party to amend his transcript,* or to file additional briefs,' or to petition for an oral argument,* or to amend the assignment of errors,' or to take any other action toward presenting a question not origi- nally presented. The petition should ask a rehearing only on points that were properly presented for decision at the first hearing and were overlooked or improperly decided.' It should be remembered that no point is considered as having been properly presented, unless the party has made some effort by argument or the citation of authorities to show the court what its decision should be on that point, and why it should be so decided.' ' Louisville E. Co. v. Berry, 9 Ind. 219, and cases cited ; Board, etc., v. App. 63, 71. Center Tp.,105 Ind. 422, 444 ; Schrichte ^ Elliott's App. Proc, § 557. v. Stites' Estate, 127 Ind. 472 ; State v. ' City of Evansville V. Senhenn, 151 Dixon, 97 Ind. 125; Burgett v. Both- Ind. 42 ; Siberry v. State, 149 Ind. 684 ; well, 86 Ind. 149 ; Mansur v. Church- State V. Halter, 149 Ind. 292, 304, 305, man, 84 Ind. 573 ; Louisville, etc., R. and eases cited; Chaproan v. Jones, Co. v. Carmon, 20 Ind. App. 471. 149 Ind. 434; Coats v. Gordon, 144 = Schrichte v. Stites' Estate, 127 Ind, Ind. 19; Stotsenburj v. Fordice, 142 472; Bitting v. Ten Eyck, 82 Ind. 421; Ind. 490 ; Manor v. Board, 137 Ind. Eownd v. State, — Ind. — , 52 N. E. 367; Funk v. Rentchler, 134 Ind. 68; Eep. 395. Jones V. Castor, 96 Ind. 307 ; Bitting ^ Eownd v. State, — Ind. — , 52 N. V. Ten Eyck, 82 Ind. 421; Haas v. E. Eep. 395. City of Evansville, 20 Ind. App. 482; 'Baldwin v. Sutton, 148 Ind. 591 ; Sunnyside, etc., Co. v. Reitz, 14 Ind. Eobbins v. Magee, 96 Ind. 174. App. 478; Louisville, etc., R. Co. v. 'Elliott's App. Proc, §§556, 557. Berry, 9 Ind. App. 63. s Sections 180, 188, ante. * Drake v. State, 145 Ind. 210, 218, 346 APPELLATE PRACIICE. § 243 § 243. Form of petition for rehearing. — It is not the office of a petition for rehearing to request the court generally to re- examine all the questions in the record, or all the questions decided against the party filing it/ but such a petition, under the rules of appellate procedure, is a pleading,^ and must spe- cifically point out the supposed errors committed by the court in rendering its decision on appeal, in the same manner that the assignment of errors points out the erroneous rulings of the trial court relied on at the original hearing.^ It is not enough to allege in general terms that the judgment of the court is erroneous,' or to make a mere argument of the ques- tions involved in the appeal, without specifying distinctly which are supposed to have- been erroneously decided/ The following petitions have been held insufficient under the above rules: "The appellee moves and prays the court for a re- hearing on each and every question decided against him by the court on the hearing of the above entitled cause; and upon each and every question and matters raised by the record or appearing in the transcript thereof, which may be necessary to a fair and just consideration and decision of those questions so decided against him."' "Your petitioner respectfully asks a rehearing of said above entitled cause for the reason that said opinion is, as your petitioner believes, founded on erroneous conclusions of law.'" "The appellefe in the above entitled cause moves the court for a rehearing in said case, and in support thereof assigns the following reasons: we believe that •Goodwin V. Goodwin, 48 Ind. 584, 'Finley v. Cathcart, 149 Ind. 470, 596. 489 ; Western XT. Tel. Co. v. Hamilton, ^Baltimore, etc., E. Co. v. Conoyer, 50 Ind. 181; Goodwin v. Goodwin, 48 149 Ind. 524, 532; Louisville, etc., R. Ind. 584. Co. V. Garmon, 20 Ind. App. 471, 481; ^ Finley v. Cathcart, 149 Ind. 470, Finley v. Cathcart, 149 Ind. 470, 489. 489; Reed v. Kalfsbeck, 147 Ind. 148; ■* Baltimore, etc., R. Co. V. Conoyer, 157; Louisville, etc., R. Co. v. Oar- 149 Ind. 524; Finley v. Cathcart, 149 mon, 20 Ind. App. 471, 479. Ind. 470; Reed v. Kalfsbeck, 147 Ind. * Goodwin v. Goodwin, 48 Ind. 584, 148 ; Louisville, etc., R. Co. v. Carmon, 596. 20 Ind. App. 471 ; Fertick v. Miche- ' Western TJ. Tel. Co. v. Hamilton, ner. 111 Ind. 472, 487; Western U. 50 Ind. 181, 186. Tel. Co. V. Hamilton, 50 Ind. 181; Goodwin v. Goodwin, 48 Ind. 584. § 244 CONSIDERATION AND DECISION OF CASES. 347 the court committed an error in reversing the judgment of the lower court.'" The following form of petition for rehearing is sufHcient under the rules of court and decisions on this subject: Title of Cause. The appellee respectfully petitions tlie coiirt to grant a rehearing in the above entitled cause for the reason that the court erred in its opinion and de- cision in said cause as follows : 1. The court erred in holding that the bill of exceptions taken by the ap- pellant is in the record. 2. The court erred in holding that appellant did not waive his right to appeal by agreeing to the entry of a judgment declaring a lien in his favor. 3. The court erred in holding that the contract sued on by the appellant is not within the statute of frauds. 4. The court erred in holding the second paragraph of a'ppellee's answer insufficient on general demurrer. 5. The court erred in holding that appellant's motion for a venire de novo should have been sustained. ,„• j> (Signed) . § 244. Brief on petition for rehearing. — The rules of court require that any argument in support of a petition for rehear- ing shall be presented by briefs which must be .filed within the time allowed for filing the petition.^ If briefs are filed, eight copies are necessary.^ It has been a common practice to bind the petition and brief in a single wrapper, putting' the petition in proper form on the first page, and the discussion on the suc- ceeding pages.* There is no good reason why the petition should n6t appear on the first pages of the briefs, but under the new rules of court requiring that the petition and brief shall be "presented separately," ' a proper petition not bound with the briefs should also be filed. The particular points upon which a rehearing is asked must be specifically stated in the petition. The petition for rehearing serves the purposes of a pleading, but unless the questions raised by the specifications therein are sup- ported by argument.or the citation of authorities, or the alleged Jrrors are apparent from a mere statement of them,' they will 'Louisville, etc., R. Co. v. Carmon, 20 Ind. App. 471, 479; Fertich v. 2 D*^,- \Wl; ^''1' 479. Michener, 111 Ind. 472, 487. gu e 29 Sup. Ct. 6 Rule 29 Sup. Ct. Rule 37 Sup. a. e Louisville, etc., R. Co. v. Carmon, Louisville, etc., R. Co. v. Carmon, 20 Ind. App. 471, 479; section 243, ante; Elliott's App. Proc, §555. 348 APPELLATE PRACTICE. § 245 be regarded as waived.' The points relied on to secure a re- hearing should be fully argued in the brief, as oral arguments on such petition are not allowed/ and the petitioner is forbid- den to take the record and petition from the files of the' court for the preparation of additional briefs after they have once been returned.' The court will consider the petition on the naatters therein alleged, or on the written or printed briefs. The opposing party may be permitted to file a brief in opposi- tion to the petition,* if the court, on proper request in writing, sees fit to give time for that purpose.* § 245. Modification of opinion or mandate. — The petition for rehearing frequently takes the form of a petition to modify the mandate,^ and may be filed by the party in whose favor judgment was pronounced, but who thinks he has not been given all the relief to which he is entitled.' Even where a re- hearing is asked, the court may modify its opinion or mandate as justice requires without granting the prayer of the petition generally.' It, is not unusual for the- court, in overruling a petition for rehearing, to enter an order that the mandate or opinion shall be modified in certain particulars,' and the court sometimes modifies the mandate and opinion as a whole with- out granting a rehearing." A petition to modify the mandate may be filed by the winning party within the period allowed for that purpose, although his adversary has procured the judgment to be certified to the court below by waiving his right to petition for a rehearing." 1 City of Bedford V. Neal, 143 Ind. 'Pittsburgh, etc., E. Co. v. Ma- 425, 432. honey, 148 Ind. 196, 207. 2 Rule 29 Sup. Ct. « Elliott's App. Proc, § 560. ' Rules 29, 30 Sup. Ct. ' Demaree v. Johnson, 150 Ind. 419, « Siberry v. State, 149 Ind. 684, 696. 427; Teegarden v. Lewis, 145 Ind. 98, 5 Rule 29 Sup. Ct. 117. * Pittsburgh, etc., Co. v. Mahoney, '"SeeBrunson v.Henry, 152Ind.310, 148 Ind. 196, 207 ; Citizens' St. R. Co. superseding s. c, advance sheets 52 V. Eobbins, 144 Ind. 671, 677. N. E. Rep. 407. "Pittsburgh, etc., E. Co. v. Ma- honey, 148 Ind. 196, 207. 246 CONSIDERATION AND DECISION OF CASES. 349 § 246. Effect of granting a rehearing;, — A rehearing may be ;ranted generally/ and when this is done the cause may be ilaced in the same condition as upon its first submission/ and larties may be permitted to file additional briefs and present the ase for consideration as upon original submission/ and may ven withdraw admissions made in the briefs originally filed.' Jut it would be a violation- of the established rules of practice by rhich appeals in our courts are governed to grant a rehearing m one or, more points which were required to be specifically tated/ and then to determine the cause by deciding other [uestions ; and the rehearing is generally confined to certain pecified points. The rules of court provide that when a re- learing is granted, the order granting it shall not have the iffect to set aside the submission of the cause, unless specially lirected ; but the record shall be returned to the files of the ilerk's office, and the cause shall stand for hearing as a sub- nitted cause and may be taken up and decided at once, un- ess, upon leave granted in answer to a special request in vriting, time is given.-* And it is the practice of the court to ake up and decide only the points presented by the petition or rehearing which were overlooked in the first decision, or vhich the court has become convinced were incorrectly decided. Granting a rehearing in answer to a petition specifying certain )oints is deemed to amount to granting a rehearing on such )oints, and it has long been held that when the court grants a ■shearing on a single point, its consideration of the case on ■ehearing will be confined to that point.' When the supreme iourt grants a rehearing on a point that is within the jurisdic- ion of the appellate court, the appeal may be transferred to he latter court for decision on rehearing.* Granting a rehear- ng recalls the former opinion of the court and it has no further orce either as a judgment in that case or as an authority. ' First Nat'l Bank v. First Nat'l * Section 243, ante. Jank, 76 Ind. 561, 572; Gilbert v. « Eule29 Sup. Ct. Southern, etc., Co., 62 Ind. 522; ' City of Crawfordsville v. Johnson, 3ooher v. Goldsborough, 44 Ind. 490. 51 Ind. 397 ; Gatling v. Newell, 12 Ind. 'First Nat'l Bank v. First Nat'l 118. 3ank, 76 Ind. 561, 572. e Manufacturers', etc., Co. v. Leslie, "Elliott's App. Proc, § 551. — Ind. App. — ,51 N. E. Eep. 510. ■'Booherv.Goldsborough,441nd.490. 350 APPELLATE PRACTICE. § 247 § 247. When second petition will be entertained. — When the petition for a rehearing is overruled, the cause is finally disposed of, and the opinion of the court is at once certified to the trial court. A second petition will not be entertained, and a party who seeks to file one may subject himself to censure by the court.' But even after the petition for a rehearing has been ruled on, the court will recall and set aside its opinion and judgment, if it is shown to have been without jurisdiction to render the judgment, because of the appeal having been taken in the name of a deceased party or otherwise.^ Where the pe- tition is sustained, and a rehearing granted, and the cause is then decided, a petition for rehearing may be filed attacking errors in the judgment pronounced on the second hearing.' But such a petition can only call for a review of the points on which, the first rehearing was granted.* § 248. Certifying opinion to lower court. — A judgment on appeal in a criminal case must be certified to the trial court immediately,' but in civil cases the judgment is not certified down until the expiration of sixty days from the time it was rendered, unless by special order of the court, or upon the fil- ing of a waiver of the right to petition for a rehearing.^ And in case a petition is filed, the opinion is not certified down un- til the petition has been, disposed of." The court has author- ity to order that the opinion shall be certified to the trial court immediately,' although the parties do not waive their right to ask for a rehearing, and it sometimes makes such an order of its own motion when the circumstances call for immediate ac- tion. Thus, where the court pronounced a decision concerning the duties of public officers in a general election that must take place within less than sixty days after the decision was ' Elliott's App. Proc, § 558. * City of Crawfordsville y. Johnson, '' Taylor v. Elliott, 52 Ind. 588. 51 Ind. 397. » Manufacturers', etc., Co. v. Leslie, * E. S. 1894, § 1965. — Ind. App. - -, 51 N. E. Eep. 510 ; « Eule 37 Sup. Ct. City of Crawfordsville V. Johnson, 51 'Elliott's App. Proc, § 552; sec- Ind. 397. tions 241, 248, ante. ' E. S. 1894, § 674. § 249 CONSIDERATION AND DECISION OF CASES. 351 rendered, the clerk was ordered to certify the opinion immedi- ately.' If the order to certify the opinion is made on the en- try of a waiver by the losing party, such waiver does not de- prive the other party of his right to' file a petition for rehear- ing, or to modify the judgment within sixty days.^ And the clerk has been prevented from certifying down an opinion reversing a judgment upon the filing of a waiver by the ap- pellee, where the appellant entered a protest against certifying it until he should have an opportunity to ask for a rehearing on some of the points in which the law was declared favora- bly to an ultimate recovery by the appellee. Where all the parties to an appeal file a waiver of the right to petition for a rehearing, and the opinion of the supreme court is certified to the clerk of the court below, the supreme court has no further jurisdiction over the cause or the parties.^. The published re- ports seldom disclose whether a waiver of the right to petition for a rehearing was filed, or when the opinion was certified to the clerk below. § 249. Authority of appellate tribunal over future action of trial court. — When the judgment appealed from is reversed in whole or in part, the supreme court shall remand the cause to the court below with instructions for a new trial when the justice of the case requires it; but if a new trial is not required, the cause shall be remanded with particular instructions rela- tive to the judgment to be rendered and all modifications thereof.' When a ease has been reversed on appeal and re- manded, to the trial court with instructions how to proceed, that court has but one duty to perform, and that is to comply with such order.' A solemn and imperative duty rests on the trial court to carry out in good faith the instructions it has received, as stated in the opinion pronounced in deciding the ' State V. Mount, 151 Ind. 679. ^ Center Tp. v. Board, etc., 110 Ind. ''Pittsburgh, etc., R. Co. v. Maho- 579; Cutsinger v. Nebeker, 58 Ind. ney, 148 Ind. 196. 207. 401; Burnett v. Curry, 42 Ind. 272; '' Parker v. State, 133 Ind. 178. Board, etc., v. Donch, 6 Ind. App. 337. * R. S. 1894, § 672. 352 APPELLATE PRACTICE. § 249 appeal,' and if a specific judgment was ordered, the trial court has no power to enter a different judgment.'' It is not even necessary that the directions to the trial court shall specific- ally indicate what shall be done. If the opinion clearly sets forth what ought to be done, and the cause is remanded for further proceedings in accordance with the opinion, it is the imperative duty of the trial court to take such action as it has been stated ought to be taken.' Even though the appeal was heard on an incorrect statement of the facts, and the judgment of the supreme court is based thereon, that judgment is absolutely binding on the trial court, and the directions given to it must be followed.* If the entry of judgment in favor of one of the parties was ordered, it is not competent for the trial court to hear evidence tending to show that he is not entitled to judgment under the real facts in the case,° nor to change the finding of facts on which the judgment appealed from was based.* If the trial court is directed to restate its conclusions of law and pro- nounce judgment in favor of one of the parties, that is all it has authority to do in the case; but the law favors, new trials' in all cases where the first judgment is found to be erroneous and it is not apparent that justice would be done by entering a different judgment on the same record.' And in all cases where the appellant is entitled to a ruling, which, if it had been made by the trial court, would have given his adversary the privilege of amending,' or where it is not clearly apparent that the rights of the parties can. be fully and fairly deter- mined by a ruling which the supreme court has authority to order made,' the cause will be remanded for a new trial. But 1 Dodge V. Gaylord, 53 Ind. 365; " Board, etc., v. Donch, 6 Ind. App. Julian V. Beal, 34 Ind. 371. 337. '^ Board, etc., V. Donch, 6 Ind. App. "R. S. 1894, §672; Buchanan- v. 337. Milligan, 108 Ind. 433. 'Cutsinger v. Nebeker, 58 Ind. 401. * Davis, etc., Oo. v. Booth, 10 Ind. * Center Tp. V. Board, etc., 110 Ind. App. 364; Town of Montieello v. Ken- 579, 586. nard, 7 Ind. App. 135. ^Center Tp. v. Board, etc., 110 Ind. 'Mitchell v. Bravvley, 140 Ind. 216; 579, 586. Shoner v. Pennsylvania Co., 130 Ind. §250 CONSIDERATION AND DECISION OF CASES. 353 if it is apparent that the rights of the parties have been fully adjudicated the court may direct what judgment shall be ren- dered.' § 250. Law of the case. — It is not only the trial court that is absolutely bound by the decision of a court of last resort on appeal, but the questions so determined are treated as having been finally adjudicated/ and its decision on such questions remains the law of that case through all its subsequent stages in the courts to which it may be taken by subsequent appeals, as well as in the inferior courts.' Such a decision is just as binding on the parties to the action if it is wrong as if it is right,' and will be adhered to on a second appeal even though it may have been overruled by another case since the first ap- peal was decided.' If the first appeal was taken to the su- preme court and decided by it, and the case is afterward ap- pealed to the appellate court, ^ or if the case was first appealed to the appellate court, and questions were raised at 'the second trial which gave the supreme court jurisdiction of a second 170; Matchett v. Cincinnati, etc., R. Co., 132 Ind. 334; Stewart v. Patrick, 5 Ind. App. 50. 'Ross V. Banta, 140 Ind. 120; Brown v. Ohio, etc., E. Co., 138 Ind. 648; McAfee v. Reynolds, 130 Ind. 33; Board, etc., v. Donch, 6 Ind. App. 337. The supreme court -frequently orders that judgment shall be entered on a special finding where the facts have been fully recited. Brunson v. Henry, 152 Ind. 310. 'Elliott's App. Proc, §578. ' Board, etc., vfBonebrake, 146 Ind. 311, 313; Currier V. Elliott, 141 Ind. 394; Brunson v. Henrv, 152 Ind. 310. Lilliev.Trentman, 130 Ind. 16; Cleve- land, etc., R. Co. V. Wynant, 134 Ind. 681 ; Nickless v. Pearson, 126 Ind. 477 ; Mason v. Burk, 120 Ind. 404 ; -McCor- mick, etc., Co. v. Gray, 114 Ind. 340; 23— App. Practice. Pittsburgh, etc., R. Co. v. Hixon, 110 Ind. 225; Walker v. Heller, 104 Ind 327; Keller v. GaskiU, 20 Ind. App 502; Elkhart, etc., R. Co. v. Waldorf, 17 Ind. App. 29 ; New Pittsburgh, etc. Co. V. Peterson, 14 Ind. App. 634 Board, etc., v. Cole, 8 Ind. App. 485. 'Lillie V. Trentman, 130 Ind. 16 Gerber v. Friday, 87 Ind. 366 ; Elk- hart, etc., R. Co. V. Waldorf, 17 Ind, App. 29; Linton, etc., Co. v. Persons, 15 Ind. App. 69; Phenix Ins. Co. v Pickel, 3 Ind. App, 332; Kingan & Co. V. Silver, — Ind. App. — , 53 N. E. Rep. 429. ^ Board, etc., v. Bonebrake, 146 Ind. 311. " Terre Haute, etc. , R. Co. v. Baker, 4 Ind. App. 66; Dipert v. Jones, 4 Ind. App. 158. 354 APPELLATE PRACTICE. § 250 appeal,' the rule remains the same, and the decision on the first appeal is binding on the court to which the second appeal is taken. Where pleadings are held bad on one appeal and are afterward amended by adding or omitting material allega- tions,^ this rule does not usually apply; but where the court, in holding a pleading bad, has stated the exact particulars in which it was deficient, it must be held good on a second ap- peal, if it appears that such deficiencies have been supplied by amendment.' It has been held that the ruling as to a pleading on one ap- peal would not control in a subsequent appeal unless it affirm- atively appeared that the pleadings were identical in each case;* but where the legal questions are identical, the first decision will control, although additional or supplemental pleadings have been filed after the cause was remanded to the trial court.' Where a pleading remains the same in one or more particulars in which it was held bad on one appeal, it must be held bad on a subsequent appeal, * although some immaterial amend- ments have been made. And where the pleadings in a cause are held to be good they must be regarded as sufficient until they are materially changed by amendments.' A decision of the court as to the sufficiency of certain facts stated in the complaint to authorize a recovery controls a sub- sequent ruling as to the sufficiency of the evidence,' or of the facts stated in a special verdict.' And an instruction declar- ing the law as it was laid down on a former appeal will be up- 1 James v. Lake Erie, etc., R. Co., 148 106 Ind. 146 ; Brown v. Critchell, 110 Ind. 615. , Ind. 31. ^Eckert V. Binkley, 134 Ind. 614; 'Lillie v. Trentman, 130 Ind. 16; Cluggish V. Koons, 15 Ind. App. 599. Linton Coal, etc., Co. v. Persons, 15 See Hatfield v. Cummings, 152 Ind. Ind. App. 69; State v. Christian, 18 280. Ind. App. 11; Western U. Tel. Co. v. 'Phenix Ins. Co. v. Moffitt, Ind. Stratemeier, 11 Ind. App. 601; Hat- App. — , 51 N. E. Rep. 948. field v. Cummings, 152 Ind. 537; *Phenix Ins. Co. v. Rogers, 11 Ind. . Jefferson ville, etc., Co. v. Riter, 146 App. 72. Ind. 521. ^Chicago, etc., R. Co. v. Hammond, 'Kingan, etc., Co. v. Silver, — Ind. etc., R., 151 Ind. 577. App. -, 63 N. E. Rep. 429. " City of Logansport v. Humphrey, ' Keller v. Gaskill, 20 Ind. App. 502. § 251 CONSIDERATION AND DECISION OF CASES. 355 held on a second appeal, though not strictly accurate.' But where the facts on the second appeal are materially different from those shown by the record on the first appeal, the first opinion will not control.^ This rule extends to all questions presented by the record for decision and actually decided by the court,' although they relate to some mat- ter that arose on the first trial, after the commission of an error which required that the judgment should be reversed.' But assertions of the court by way of discussion or illustra- tion in pronouncing the opinion of the court on the first ap- peal, which were not necessary to a statement of the decision rendered, do not become the law of a case, and are not bind- ing on the courts that may subsequently be called on to con- sider it.' A decision on appeal only determines such ques- tions as are fairly presented for decision, and are decided by the court in disposing of the pending appeal,' and questions which might have been presented, but were waived by coun- sel, either expressly or by a failure to argue them, may be presented for decision on a second appeal.' § 251. Affirmance or reversal on condition. — The authority of an appellate tribunal is not limited to the entry of a judg- ment reversing the case if an error is apparent, or afiirming it, if no error is disclosed,' but it has authority to so frame its judgment as to do justice to the parties.' And where the ap- pellee was clearly entitled to some relief, but it is equally clear that the relief obtained is excessive, the court frequently affirms the judgment on condition that the appellee shall enter a remittitur for the excess to which he is not' entitled." Of ' Pittsburgh, etc., Co. v. Hixon, 110 Bank, 102 Ind. 464, 472 ; Elliott's App. Ind. 225, 233. Proc, § 579. 'City of Blufiton v. McAfee, — "Union School Tp. v. National Ind. App. — ,53 N. E. Eep. 1058; Bank, 102 Ind. 464, 472; Davis v. Eckert V. Binkley, 134 Ind. 614. Krug, 95 Ind. 1. 'Brunson v. Henry, 152 Ind. 310. 'Davis v. Krug, 95 Ind. 1. 'Branson v. Henry, 152 Ind. 310. «R. S. 1894, §§672, 673. * Union School Tp. v. First Nat'l 'Elliott's App. Proc, §21. " Citizens' St. E. Co.v. Bobbins, 144 356 APPELLATE PRACTICE. § 252 course, a remittitur can only be ordered where the amount of excess to be remitted can be clearly ascertained. Where the appellee was entitled to recover on a bond, but judgment was rendered for an amount in excess of the penalty specified in the bond, a judgment for the face of the bond was affirmed on condition that the excess should be remitted.^ And where the administrator of an estate recovered judgment for a sum in excess of the debts of the estate in process of administration, although the heirs had released their rights in the claim sued on, judgment for the amount necessary to pay the debts and costs of administration was affirmed upon the entry of a re- mittitur for the excess;^ and where the note on which an action was based provided for five per cent, attorneys' fees, and the court gave judgment for a larger amount, the judgment was affirmed on condition that the excess should be remitted.^ But where a judgment is affirmed on such a condition the appellee is required to pay the costs of the appeal.' § 252. Affirmance or reversal in part. — The judgment from which an appeal is taken may be reversed in whole or in part,' and it is by no means unusual for the court to affirm a judg- ment as to part of the issues,^ or some of the parties,' and re- verse it as to the remainder;' but where the judgment is single,' Ind. 671, 687 ; Line v. State, 131 Ind. « Smith v. Barber, — Ind. — , 53 N. 468 ; Cummings v. Girton, 19 Ind. E. Rep. 1014. App. 248; Elliott's App. Pjoc., §570, 'Louisville, etc., R. Co. v. Tread- and authoriti^ cited. way, 143 Ind. 689, 704; Garr, Scott & 1 Line v. State, 131 Ind. 468. Co' v. Shaffer, 139 Ind. 191 ; Flora v. ^ Citizens' St. R. Co. V. Bobbins, 144 Russell, 138 Ind. 153; Radican v. Ind. 671, 687. Buckley, 138 Ind. 582; ^mall v. Ken- ' Cummings v. Girton, 19 Ind. App. nedy, 137 Ind. 299; Offutt v. Cooper, 248. 136 Ind. 701 ; Duckwall v. Kisner, 136 * Cummings v. Girton, 19 Ind. App. Ind. 99 ; Clark v. Hillis, 134 Ind. 421 ; 248, 252. Citizens' St. R. Co. v. Robbins, 128 5R. S. 1894, § 673; Louisville, etc., Ind. 449; State v. Mills, 82 Ind. 126; B. Co. V. Treadway, 143 Ind. 689, 704, Dodge v. Dunham, 41 Ind. 186. and authorities; same case, 142 Ind. 'Elliott's App. Proc, § 574. 475, 488, and authorities cited ; Steeple ^ Kyle v. Kyle, 65 Ind. 387. v. Downing, 60 Ind. 478; Louisville, etc., R. Co. v. Dnvall, 40 Ind. 246. § 253 CONSIDERATION AND DECISION OF CASES. 357 or of such a character that justice to one party demands that it should be reversed as to all parties,' the judgment will be reversed as an entirety, although some of the parties against whom it was recovered are not entitled to a reversal/ § 253. Publication and authority of opinions. — ^The consti- tution requires that the supreme court shall, upon the decis- ion of every case, give a statement in writing of each question arising in the record of such case and the decision of the court thereon.' The same duty is imposed on the court. in deciding appeals in criminal cases.' And the statute creating the ap- pellate court imposes on it the duty of giving an opinion in writing on the material questions in every case reversed, with the reasons for the decision .° The constitutional provision that the supreme court shall give a statement in writing of each question arising in the rec- ord, and the decision of the court thereon, has been construed to mean that the court must decide all questions which are fully and clearly stated in the transcript and presented by the assign- ment of errors, the determination of which is necessary to a final decision of the cause,* and which are not waived by the failure of counsel to discuss them.' Where a single controlling error is found to have been committed, such as sustaining a demurrer to an insufficient complaint, the court is not bound to go on after determining that fact, and decide as to the cor- rectness of rulings on a demurrer to the answer, a motion for a new trial, or other questions presented to the court in subse- quent proceedings.' And when the court has determined that a motion for a new trial was improperly overruled, it is not bound to go on and decide whether a new trial ought to be ^Taar v. Millikan, 68 Ind. 208. 427, 433; Bowen v. Stewart, 128 Ind. '' Gaar v. Millikan,_68 Ind. 208. See 507, 518 ; Trayser v. Trustees, 39 Ind. Acts 1899, p. 5, amending § 647, R. S. 556; Judah v. Trustees, 23 Ind. 272; 1894. Willets v. Ridgway, 9 Ind. 367. 'Const., art. 7, § 5; R. S. 1894, ' Walls v. State, 140 Ind. 16; section § 165. 188, ante. *E. S. 1894, § 1967. » Carmel, etc., Co. v. Small, 150 Ind. *R.S. 1894, §1350. , 427,431. " Carmel, etc., Co. v. Small, 150 Ind. 358 APPELLATE PKACTICE. § 253 granted for each one of a large number of causes for which a new trial was asked.' As a matter of expediency, however, the court usually decides all questions which will probably arise on a second trial of the case.^ The general assembly is required to provide by law for the speedy publication of the decisions of the supreme court, but no judge may report such decisions.' Provision has accord- ingly been made for the employment of a reporter of the su- preme court and the publication of its decisions, to be sold at the cost of publication,* and also for the publication of such opinions of the appellate coui^t a!s that court may select.^ The printed reports of the decisions of the supreme court, published by authority of the state, are made competent evidence in the courts of the state to the same extent as certified copies of its opinions.* We have seen that the opinion pronounced in deciding an appeal is the law of that case until its final determination, and is absolutely controlling as such on any courts before which the case is brought.' But it is also a part of the duty of the court to interpret thelaw, and its interpretation as set forth in its published opinion is binding on all inferior courts through- out the state ' until overruled by the court which pronounced it.' The language used in a decision, however, must be understood with reference to the question which was then be- fore the court for decision and was decided, and a statement in general terms can not safely be extended to cover everything which it might embrace." Such decisions are not the law, but are only the evidence or exposition of what the court has con- strued the law to be," and may be set aside and overruled by iJudah V. Trustees, 23 Ind. 272. ' Section 250, anie. See Lake Shore, etc., E. Co. v. Cincin- ' Haskett v. Maxey, 134 Ind. 182. nati, etc., R. Co., 116 Ind. 578, 590. ^ ggg Leard v. Leard, 30 Ind. 171. '■ Lake Shore, etc., R. Co. v. Cincin- '"Bank of Commerce v.Wiltsie, — nati, etc., E. Co., 116 Ind. 578, 591. Ind. — , 53 N. E. Rep. 950. ''Const., art. 7, §6; R.S.1894, § 166. " Center S. Tp. v. State, 150 Ind. *R. S. 1894, §§7738,7750; Acl.sl889, 168, 173; Paul v. Davis, 100 Ind. 422; p. 629. Hibbits v. Jack, 97 Ind. 570; Hines v. 'E. S. 1894, § 1360. Driver, 89 Ind. 339; 1 Kent's Com., « E. S. 1894, § 480. 477. § 253 CONSIDERATION AND DECISION OF CASES. 359 the same authority which pronounced them.' When they have been overruled by the supreme judicial authority of the state, the effect of the overruling decision is to wholly obliter- ate the first decisions on the point on which they are overruled, and the law as therein construed or declared must be consid- ered as though it never existed, and that the law always has been as expounded by the last decision." A change in the construction of a statute will not, however, impair the obliga- tion of a contract or its legal effect as determined by the rule declared in the overruled cases.' An overruling case, how- ever, will not affect the binding force of a' decision as to the parties to a case in which the law has already been declared to the contrary by a court of last resort, to which it was appealed.' 'Board, etc., v. Allman, 142 Ind. 102,107; Haskett v. Maxey, 134 Ind. 573,592; Paul v. Davis, 100 Ind. 422 ; 182; Stephenson v. Boody, 189 Ind. Hines v. Driver, 89 Ind. 339. 60, 67 ; section 295, post. ^Center S. Tp. v. State, 150 Ind. ''Board, etc., v. Bonebrake, 146Ind. 168; Haskett v. Maxey, 134 Ind. 182; 311; section 250, ante; see chapter 25, Eam's Legal Judgments, 47. post. 'Byrum v. Henderson, 151 Ind. CHAPTER 20. HARMLESS ERROR. § 254. Only what injured appellants' § 257. Party can not complain of rul- snbstantial rights is reversi- ing which exerted no real ble error. influence. 255. Party can not complain of er- 258. Judgment not reversed for er- rors he induced the court to ror in procedure by which commit. correct result was reached. 256. Party can not complain of rul- ing which operated in his own favor. § 254. Only what injured appellants' substantial rights is reversible error. — It is not every error of the trial court in the conduct of a case that can be made available to reverse the judgment on appeal. The civil code provides that defects which might have been amended by the court below shall be deemed amended by the supreme court, and shall not be cause for reversal, and that no judgment shall be stayed or reversed in whole or in part where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.' And the criminal code provides that in the consideration of questions presented on an appeal, the supreme court shall not regard technical errors or defects or exceptions to any decision or action of the court below which did not, in the opinion of the supreme court, prejudice the substantial rights of the defendant.^ These statutes merely declare a rule which obtains in all courts of appellate jurisdiction,' and the rule laid down by them is frequently applied to uphold a judg- ment.' 1 R. S. 1894, § 670. ' Elliott's App. Proc, § 631, 652. ' R. S. 1894, § 1964. *Poundstone v. Baldwin, 145 Ind. (360) §254 •HARMLESS EEKOR. 361 A party seeking the reversal of a judgment has the burden of showing that his substantial rights were prejudiced by the errors complained of.' It is not enough merely to show that errors were committed. This rule applies with equal force in criminal cases/ and unless the record of an appeal in a case of that kind shows that an error complained of was injurious to the defendant, it may be regarded as harmless.' But if the record discloses substantial error which might have injuriously affected appellant's rights, it will be presumed to have been prejudicial to his rights unless the contrary clearly appears.* We have seen that it is incumbent on the appellant to present a record which affirmatively shows that error was committed,* but that alone is not enough. It must also be affirmatively shown that such error operated to harm appellant, and if the judgment is clearly right on the facts found,'' or the ultimate judgment from which an appeal is taken is one of which the appellant can not complain,' intermediate errors will be con- sidered harmless and the judgment will not be reversed. Under 139; Engrer v. Ohio, etc., R. Co., 142 Ind. 618; Walls v. State, 140 Ind. 16; Schmidt v. Draper, 137 Ind. 249; Cur- rier V. Elliott, 141 Ind. 394; Garard v. Garard, 135 Ind. 15; Miller v. Cook, 127 Ind. 339 ; Conley v. Grove, 124 Ind. 208; Campbell v. Nebeker, 58 Ind. 446; Gallagher v. Himelberger, 57 Ind. 63; Epps v. State, 102 Ind. 539; Strong v. State, 105 Ind. 1; Gal- vin V. State, 93 Ind. 550. 'Poundstone v. Baldwin, 145 Ind. 139; McKinney v. Hartman, 343 Ind. 224; Levi v. Drudge, 139 Ind. 458; Marsh v. Morris, 133 Ind. 548 ; Badger V. Merry, 139 Ind. 631 ; "Wiley v. Coo- vert, 127 Ind. 559; Keller v. Reynolds, 12 Ind. App. 383. ' Hollingsworth v. State, 111 Ind. 289-298; Phillips v. State, 108 Ind. 406; Trout v. State, 107 Ind. 578; Henning v. State, 106 Ind. 386, 400; Thomas v. State, 103 Ind. 419, 437; State v. Bowman, 103 Ind. 69; Clay- ton V. State, 100 Ind. 201 ; Galvin v. State, 93 Ind. 550. » Skaggs V. State, 108 Ind. 53. * Eobb V. State, 144 Ind. 569 ; Stan- ley V. Dunn, 143 Ind. 495 ; Mode v. Beasley, 143 Ind. 306 ; Bowlus v. Phe- nix Ins. Co., 133 Ind. 106. * Section 122, ante; Head v. Doehle- man, 148 Ind. 145 ; Campbell v. State, 148 Ind. 527 ; Baldwin v. Sutton, 148 Ind. 591. "Hall V. Hedrick, 125 Ind. 326; Butt V. Butt, 118 Ind. 31 ; Spence v. Board, 117 Ind. 573; Ice v. Ball, 102 Ind. 42; Kinney v. Dodge, 101 Ind. 573 ; Clawson v. Chicago, etc., R. Co., 95 Ind. 152;McComasv. Haas, 93 Ind. 276; Fell v. Muller, 78 Ind. 507. "Sphung V. Moore, 120 Ind. 352; Chicago, etc., R. Co. v. Barnes, 116 Ind. 126; Slauter v. Favorite, 107 Ind. 291; Bothwell v. Millikan, 104 Ind. 162; Platter v. Board, etc., 103 Ind. 360; Krug v. Davis, 101 Ind. 75. 362 APPELLATE PRACTICE. § 255 this rule the court will refuse to reverse a judgment because of the failure to assess nominal damages in appellant's favor/ where his right to the damages assessed is the only question involved. The court will even search the record for reasons by which to sustain a judgment, notwithstanding the commis- sion of errors which other parts of the record may show to have been harmless.^ § 255. Party can not complain of errors he induced the court to commit. — An objection by appellant and an exception taken at the time an erroneous ruling was made are essential as the basis of an appeal. ° It would be unreasonable to per- mit a party to induce the court to make a ruling and at the same time to reserve an exception to the action of the court in making it,' and the principle of estoppel forbids a person to take advantage of his own acts in this way.° It may, there- fore, be laid down as a general principle, that a party can not successfully complain of an error which he induced the court to commit. ° Thus, giving an instruction asked by appellant,' or overruling a demurrer to a pleading filed by him, sustain- ing a demurrer which he filed to his adversary's plea, admit- ting evidence offered by appellant, or excluding evidence, upon his objection, however erroneous such ruling may have been, it is not available to reverse a judgment against him. This rule extends so far as to forbid a party to successfully complain of incompetent evidence given in answer to his own pressing questions.* And where a party consents to the entry of a judgment by agreement,' he will not be heard to assert that 1 Smith V. Parker, 148 Ind. 127; « State v. Arnold, 144 Ind. 651, 657; Coffin V. State, 144 Ind. 578; Kalenv. Scott v. Board, 101 Ind. 42; Penn- Terre Haute, etc., E. Co., 18 Ind. sylvania Co. v. Roney, 89 Ind. 453; App. 202; Williams v. Hanly, 16 Ind. Minot v. Mitchell, 30 Ind. 228. App. 464; Midland E. Co. v. HoUoran, ' Blanchard v. Jones, 101 Ind. 542, 14 Ind. App. 392. 550; Pennsylvania Co. v. Eoney, 89 ' Emerson v. Opp, 9 Ind. App. 581 ; Ind. 453 ; Scott v. Board, 101 Ind. 42 ; Louisville, etc., E. Co. v. Berry, 9 Minot v. Mitchell, 30 Ind. 229. Ind. App. 63. 'Musselman v. Musselman, 44 Ind. * Sections 7, 24, ante. 106. « Elliott's App. Proc, § 626. ^McMahan v. McMahan, 142 Ind. * Elliott's App. Proc, § 630. 110; Gullett v. Phillips, — Ind. — , § 255 HARMLESS BKKOR. 363 such judgment or decree is erroneous. But filing a motion to modify a judgment is not a waiver of exceptions to erroneous rulings which preceded the judgment, although the motion should be sustained and the judgment modified as requested/ Where a party has asked and obtained a new trial, which has resulted in a verdict against him, he can not have the order granting it set aside and the judgment reversed on account of an error which preceded the filing of his motion for a new trial.' The invitation to the court to commit error need not be ex- pressly given, but may be implied from a request for other rulings, or from the conduct of the parties,' as where a party secures a ruling admitting evidence of a certain kind in his own favor,' or excluding a particular kind of evidence offered by his adversary.' Such conduct will be treated as a request for similar rulings whenever similar questions arise in the course of the trial, and will have the same effect as if the court had been expressly asked to make similar rulings in favor of his adversary. An apparent exception to this rule is found in the cases which hold that an appeal can be maintained from a judgment of conviction in a criminal case, which was entered on a plea of guilty,^ or was entered by agreement of the de- fendant and the prosecuting attorney.' The cases first cited, however, are put on the ground that admitting he has done certain acts can not estop a person from denying that such acts constitute a public offense, and the case last cited is clearly opposed both to reason and authority.' October 11, 1899; Weander v. John- * Perkins v. Hayward, 124 Ind. 445; son (Neb.), 60 N. W. Rep. 353; Indi- Wabash, etc., Co. v. Crumrine, 123 anapolis, etc., E. Co. v. Sands, 133 Ind. 89. Ind. 433. s Nitche v. Earle, 117 Ind. 270; Din- ' Pittsburgh, etc., E. Co. v. Beck; widdie v. State, 103 Ind. 101. 152 Ind. 421, superseding opinion in "Pattee v. State, 109 Ind. 545; Ar- Bame case, 52 N. E. Eep. 399. bintjrode v. State, 67 Ind. 267; H^n- ' Louisville, etc., E. Co. v. Miller, derson v. State, 60 Ind. 296. 141 Ind. 533, 539. ' State v. Gardner, 8 Ind. App. 440. ^ Elliott's App. Proc, § 627. « Holsclaw v. State, 114 Ind. 506. 364 APPELLATE PRACTICE. ^ § 256 § 256. Party can not complain of ruling which operated in his own favor. — An appellant may not procure the reversal of a judgment for error which, while he did not ask the court to commit it, operated in his own favor. This rule is grounded on the proposition that a party is entitled to no relief unless he has suffered some wrong, and that a person can not be harmed by rulings in favor of himself. It is most frequently applied where a party has objected and excepted to an instruc- tion which states the law more favorably to his own case than the facts will warrant,' or where a party has objected to a ques- tion and the answer has proved clearly favorable to him, or he has unsuccessfully sought to introduce evidence to prove his adversary's case,^ and, in general, where the admission of evidence favorable to the complaining party has been ex- cepted to.' It may also apply where appellant has saved an exception to conclusions of law that are more favorable to him than the finding of facts would warrant,' or where the decree has awarded appellant a larger share of the property in controversy than he is entitled to.' It also applies where the verdict or judgment against appellant in a criminal case is not as severe as the law would warrant.* Thus, where a defendant was found guilty, and his term of imprisonment fixed at less than the minimum punishment prescribed by law for the of- fense of which he was convicted,' or where the jury sentenced defendant to imprisonment but omitted to impose a fine,' or to disfranchise the defendant,' or to render him incapable of holding public office for a fixed period of time," although the ^ Lake Erie, etc., K. Co. v. Mc- Dismore, 127 Ind. 338;* Nichols v. Henry, 10 Ind. App. 525; Cline v. State, 127 Ind. 406; Kennegar v. State, Lindsey, 110 Ind. 337; Eddingfleld v. 120 Ind. 176; Shafer v. State, 74 Ind. State, 12 Ind. App. 312. 90; Griffith v. State, 36 Ind. 406; 2 Johnson v. Gwinn, 100 Ind. 466, Hoskins v. State, 27 Ind. 470. 477. 'State v. Arnold, 144 Ind. 651. See ^ Cline V. Lindsey, 110 Ind. 337; Hoskins v. State, 27 Ind. 470. Eatcliff V. Everman, 87 Ind. 446. « Nichols v. State, 127 Ind. 406; * Know V. Trafalet, 94 Ind. 346, 351. Harrod v. Dismore, 127 Ind. 338. ^Barr v. Vanalstine, 120 Ind. 590, 'May v. State, 140 Ind. 88; Ken- 595. negar v. State, 120 Ind. 176. « State V. Arnold, 144 Ind. 651; " Shafer v. State, 74 Ind.90; Griffith May V. State, 140 Ind. 88; Harrod v. v. State, 36 Ind. 406. § 257 HARMLESS ERROR. 365 statute provided that he should be imprisoned, fined, disfran- chised, and rendered incapable of holding public office, the de- fendant could not complain of such omission on appeal, at least where he had taken no steps to secure the infliction of a greater punishment. A person's substantial rights can hardly be prejudiced by the failure of the court and jury to punish him as severely as the law demands. Somewhat analogous to this rule is that which forbids a person who has secured an er- roneous interlocutory order in his own favor to make that rul- ing a cause for reversing a correct final judgment in favor of his adversary.' § 257. Party can not complain of ruling which exerted no real iniluence. — That a judgment will not be reversed for error which did not exert a material influence on the result is as- serted by authorities too numerous for citation; but there is often difficulty in determining whether or not an apparent error was influential. A familiar instance of the application of this rule is where there are several defendants and one of them seeks to take advantage of a ruling against another. Such a ruling may have been gross error, but no party will be per- mitted to take advantage of it except the one against whom it was made.* Another instance of the application of this rule is where a demurrer is overruled to a bad paragraph of pleading and the record affirmatively shows that the verdict and judg- ment are based entirely on another paragraph which is good.^ Also where a demurrer to a good paragraph of pleading is sus- tained, but the same facts are admissible under another para- graph which remains in the record and requires no more evi- ' World, etc., Co. v. Marlin, 151 Ramsay, 91 Ind. 189; Knight v. lud. 630. Knight, 6 Ind. App. 268; Chicago, ''Marsh v. Morris, 133 Ind. 548; etc., R. Co. v. Fenn, 3 Ind. App. 250; Wiley V. Coovert, 127 Ind. 559. Marvin v. Sager, 145 Ind. 261 ; Rob- 'Evanavllle, etc., R. Co. v. Mad- inson v. Dickey, 143 Ind. 205; Lime dox,134Ind. 571; Tewksburyv.How- City, etc., Assn. v. Black, 136 Ind. ard, 138 Ind. 103; Cincinnati, etc., 544; Miller v. Rapp, 135 Ind. 614; Co. V. Gaines, 104 Ind. 526; Trace- Haas v. City of Evansville, 20 Ind. well V. Famsley, 104 Ind. 497; Burk- App. 482; Hanger v. Benua, — Ind. am' V. Burk, 96 Ind. 270; Johnson v. — ; 53 N. E. Rep. 942. 366 APPELLATE PRACTICE. §257 dence to sustain it.' And when the facts stated in a paragraph of pleading are found to have been untrue, overruling a de- murrer to such pleading must be considered harmless.^ The admission of immaterial evidence' will be treated as harmless, unless it is made to appear that the appellant was probably injured thereby in some material respect ; and the admission of incompetent evidence to prove a given fact will be treated as harmless, when the same fact is fully established by competent evidence that is not contradicted,* or when the jury found in favor of the objecting party on that point. ^ Neither may a party successfully complain of the exclusion of evidence when it is clear that its admission would not have changed the result.^ But the admission of improper evidence which has any tendency to mislead the jury, or to arouse their prejudices against the party, will be reversible error, although it relates to an immaterial point ;' as M'ill the admission of any irrelevant evidence which is shown to have probably influenced the verdict.' But if an erroneous ruling is afterward corrected, as ' Metzger v. Hubbard, 54 N. E. Eep. 761 ; Hormann v. Hartmetz, 128 Ind. 353; Moore v. Boyd, 95 Ind. 134; Mc- Clelland V. Louisville, etc., E. Co., 94 Ind. 276; George v. Brooks, 94 Ind. 274 ; Lester v. Brier, 88 Ind. 296 ; City of Elkhart v. Wickwire, 87 Ind. 77; City of Huntington v. Hawley, 120 Ind. 502 ; Long v. Williams, 74 Ind. 115 ; Board, etc., v. State, 148 Ind. 675. ^ Souders v. Jeffries, 98 Ind. 31 ; Bartlett v. Pittsburgh, etc., R. Co., 94 Ind. 281; State v. Julian, 93 Ind. 292. 'Deig V. Morehead, 110 Ind. 451; Lake Erie, etc., R. Co. v. Griffin, 107 Ind. 464 ; Pfaffenberger v. Platter, 98 Ind. 121 ; Stockwell v. Brant, 97 Ind. 474; Henry v. Carson, 96 Ind. 412; City of Logansport v. Carroll, 95 Ind. 156;' Cain v. Goda, 94 Ind. 555; Rob-, ertsv. Huddleston, 93 Ind. 173; Payne V.June, 92 Ind. 252; Lovingerv. First Nat'l Bank, 81 Ind. 354. * Louisville, etc., R. Co. v. Miller, 141 Ind. 533; Culver v. Marks, 122 Ind. 554 ; Citizens' State Bank v. Ad- ams, 91 Ind. 280; Hays v. Morgan, 87 Ind. 231; Board, etc., v. Hammond, 83 Ind. 453 ; Snell v. Maddux, 20 Ind. App. 169; Hopkins v. Boyd, 18 Ind. App. 63. * Robbins v. Masteller, 147 Ind. 122. See McFadden v. Schroeder, 9 Ind. App. 49, 55. * Pennsylvania Co. v. Newmeypr,129 Ind. 401 ; Howlett v. Scott, 100 Ind. 485; Scotten v. Randolph, 96 Ind. 581; Hadley v. Hood, 94 Ind. 119; Baker v. Carr, 100 Ind. 330; Sears v. Runner, 14 Ind. App. 695. 'Orr V. Miller, 98 Ind. 436. ^Hessin v. Heck, 88 Ind, 449; Weik V. Pugh, 92 led. 382 ; Morning- star v. Musser, 129 Ind. 470; Brunker v. Cummins, 133 Ind. 443. § 258 HAKMLESS ERROR. 367 where evidence improperly excluded is afterward, admitted/ or an opportunity to introduce it is afforded the party by whom it was offered,^ or evidence improperly admitted is afterward stricken out/ or is expressly withdrawn from the jury by an in- struction/ or an error in the conclusions of law where there is a special finding is corrected by the final judgment/ such error will be rendered harmless, and can not be made available to reverse the judgment. The same is true where an objection to an improper question is overruled but the question remains unanswered.* And where it is affirmatively shown, by answers to interrogatories or otherwise, that giving an erroneous in- struction, or refusing a proper one, did not harm the com- plaining party, the error will be disregarded.' § 258. Judgment not reversed for error in procedure by which correct result was reached. — If a party is denied the right to recover when shown to be entitled to relief, such de- nial is clearly an error for which a judgment against him ought to be reversed; and if judgment is given against a party in favor of one who has shown no right whatever to recover, such judgment is also clearly erroneous and cannot stand; but a large part of the errors which are reviewed by courts of ap- peal relate to matters of procedure rather than to the ultimate rights, of the parties, and are important only so far as they af- fect the final determination of those rights.' Thus, the ques- 'Colglazier v. Colglazier, 124 Ind. ^Krug v. Davis, 101 Ind. 75; Nel- 196; Houser v. State, 93 Ind. 228; son v. Cottingham, 152 Ind. 135, 137, Wales V. Miner, 89 Ind. 118 ; Ander- 188, and cases cited, son V. Donell, 78 Ind. 303; Lillard v. « Pence v. Waugh, 135 Ind. 143. State, 151 Ind. 322. 'Dickey v. Shirk, f28 Ind. 278; ^Colglazier V. Colglazier, 124 Ind. Cline v. Lindsey, 110 Ind. 337 ; Porter 196; Campbell V. Hunt, 104 Ind. 210; v. Waltz, 108 Ind. 40; Ricketts v. McClellan v. Bond, 92 Ind. 424. Harvey, 106 Ind. 564 ; Cleveland, etc., 'Hoiiser v. State, 93 Ind. 228. R. Co. v. Newell, 104 Ind. 264; Wor- 'Sheimrd v. Goben, 142 Ind. 318; ley v. Moore, 97 Ind. 15; Kuhns v. Vannny v. Klein, 122 Ind. 416; Moore Gates, 92 Ind. 66; Louisville, etc , R. v. ShipMs; 121 Ind. 267 ; Evansville, Co. v. Krinning, 87 Ind. 351; Moore etc., R.Oo.v. Montgomery,85 Ind. 494; v. Lynn, 79 Ind. 299; Uhl v. Harvey, Indimnpolis, etc., R. Co. v. Bush, 101 78 Ind. 26. I"d. 582. sElliott's App. Proc, §§ 631, 632. 368 APPELLATE PRACTICE. § 258 tioii whether or not the jury shall hear certain evidence is im- portant only so far as that evidence may affect the verdict and judgment.' And the question whether or not a certain in- struction shall be given is likewise important only so far as the jury may be controlled by it. The rule is therefore well established that a judgment will not be reversed for any errors which may have been committed in the conduct of the trial or other proceeding, if it is evident that the irregular means em- ployed produced a correct result.^ A judgment that is clearly right will not be reversed because of any intervening error in giving or refusing instructions/ nor in making any other ruling which preceded the entry of judgment.* This rule is sometimes applied where the imme- diate result of an erroneous ruling is right without regard to the final judgment which may be entered. Thus, striking out a motion which ought to have been overruled, ° or sustaining a demurrer to a, paragraph of argumentative denial which might have been stricken out on motion because pleaded with the general denial,* or correcting a judgment by proceedings on complaint and summons instead of motion and notice,' or permitting several persons to join in a complaint by which the right of action of each plaintiff is separately stated, when they should have brought separate actions which the court might have consolidated,' must each be deemed harmless, because the ^ Section 257 , ante. port, etc., Co., 108 Ind. 137; Slauter 2 Elliott's App. Proc, § 633 ; Nelson v. Favorite, 107 Ind. 291 ; Both well- v. V. Cottingham, 152 Ind. 135. Millikan, 104 Ind. 162; Platter v. 5 Swaim v. Swaim, 134 Ind. 596; Board, etc., 103 Ind. 360; Ice v. Ball, Stevens v. Stevens, 127 Ind. 560 ; State 102 Ind. 42. V. Caldwell, 115 Ind. 6; Statev.Euhl- ^ Mathews v. Droud, 114 Ind. 268; man. 111 Ind.* 17; Winchester, etc.. Long v. Rueh, 148 Ind. 74; Blemel v. Co. V. Carman, 109 Ind. 31; Sanders Shattuck, 133 Ind. 498; Albany Land V. Weelburg, 107 Ind. 266; Perry v. Co. v. McElwaine-Richards Co., 11 Makemson, 103 Ind. 300; Wolfe v. Ind. App, 477. See Bonfoy v. Goar, Pugh, 101 Ind. 293 140 Ind. 292. «Hall V. Hedrick, 125 Ind. 326; « Holcraft v. King, 25 Ind. 852, 356; Sphung V. Moore, 120 Ind. 352 ; Butt Hamilton v. Love, 152 Ind. 641 ; Allen V. Butt, 118 Ind. 31 ; Spence v. Board, v. Stndabaker, etc., Co., 152 Ind. 406. 117 Ind. 573; Chicago, etc., R. Co. v. ' Gray v. Robinson, 90 Ind. 527; Barnes, 116 Ind. 126; State v. Trus- Bales v. Brown, 57 Ind. 282. tees, 114 Ind. 389 ; Palmer v. Logans- ^ Northwestern Loan, etc., Co. v. § 258 HARMLESS EEROE. 369 same result is reached as if the proceedings had been correct. And where the court erroneously refused to strike out an an- swer to a motion, but ruled on the motion as if it had remained unanswered, the erroneous refusal to strike out the answer was harmless.^ Also, where the plaintiff's evidence was legally in- sufficient to entitle him to recover, and the court, instead of directing the jury to return a verdict for the defendant, with- drew the case from the jury and rendered judgment in de- fendant's favor, the supreme court refused to reverse the judg- ment/ Where incompetent evidence was introduced to rebut other evidence that was wholly immaterial, the court held the error to be harmless.* And where a chancery case was submitted to a jury, which returned a verdict for less than the plaintiff was entitled to recover, but the court increased the assess- ment and pronounced judgment for a proper amount, the judgment was affirmed.' Also, where the plaintiff brought an action which he was not entitled to maintain, and the court gave judgment against him for costs after a hearing on the merits, instead of dismissing the action, it was held that a correct result had been reached and the judgment was af- firmed.^ It is sometimes difficult to determine whether a judg- ment is so clearly right that intervening errors ought to be disregarded; but where appellant's own evidence,^ or the un- contradicted evidence of all the witnesses,' shows that appel- lant has no right to recover, the rule will be applied and the judgment affirmed. But where a party is denied a positive right, as where he is denied the privilege of a trial by jury,' or where it is not clear that the result must have been the McPherson, — Ind. App. — , 54 N. ^Lowery v. State L. Ins. Co., — E. Rep. 130, Ind. , 54 N. E. Rep. 442 ; Gullett v. 'Johnson v. Breedlove, 104 Ind. Phillips, — Ind. — , October 11, 1899. 521. « Miller V. Buchanan, 10 Ind. App. ' Engrer v. Ohio, etc., R. Co., 142 474. Ind. 618. ' Woods v. Board, etc., 128 Ind. 289. 'Robinson V. Shanks, 118 Ind. 125. *Redinbo v. Fretz, 99 Ind. 458; 'Platter v. Board, etc., 103 Ind. 360, Reynolds v. State, 61 Ind. 892 ; Shaw 385. V. Kent, 11 Ind. 80; R. S. 1894, § 412. 24 — App. Pkacticb. 370 APPELLATE PRACTICE. § 258 same if no error had been committed, as in case incompetent evidence ^as admitted, which may possibly have influenced the result,' the judgment must be reversed. ' Orr V. Miller, 98 Ind. 436 ; Hessin Hedges, 79 Ind. 288 ; Brimker v. Cum- V. Heck, 88 Ind. 449; Memphis, etc., mins, 133 Ind. 448. Co. V. McCool, 83 Ind. 392 ; Mays v. CHAPTER 21. EXTEAORDINARY JURISDICTION OF SUPREME COURT. § 259. May issue restraining orders § 264. Performance of acts necessary and injunctions. to perfect appeal may be 260. Cases in which jurisdiction to commanded. issue such orders has been 266. Matters which may be cor- entertained. rected by appeal or certiorari 261. Cases in which jurisdiction to will not be controlled by ex- issue such orders has been traordinary writ, disclaimed. 266. Procedure to obtain extraordi- 262. May issue writs of mandate in nary writs. aid of its appellate jurisdic- 267. Prompt application is neces- tjon. sary to obtain writ. 263. Discretion of trial' judge not 268. Writs of prohibition. subject to control by extra- ordinary writ. § 259. May issue restraining orders and injunctions. — We have seen that the jurisdiction of the supreme and appellate courts, is mainly one of review, and that their authority is chiefly exercised in revising the proceedings of other courts throughout the state.' For, while the constitution gives the general assembly power to confer on the supreme court such original jurisdiction as it may see fit,^ no such original juris- diction has ever been conferred,' except so far as the exercise of original jurisdiction may be necessary to perform its func- tions as an appellate tribunal. But the supreme court is authorized by statute to grant restraining orders and injunc- tions in term time when necessary and proper for the due exercise of the jurisdiction and powers of such courts,' and the same power was conferred on the appellate court by the act ^ Chapter 5, ante. » Section 60, ante. ^ Const., art. 7, §4; R. S. 1894, § 164. ■* R. S. 1894, § 1161. (371) 372 APPELLATE PEACTICE. § 260 which created it.' This power may also be exercised by any judge of^either court in vacation or recess/ The power to pro- tect their jurisdiction by the issue of such writs is said to be inherent in courts of high rank as essential to their independ- ent existence.' But whether the power is inherent, or is de- rived from the statute which assumes to confer it, there is no doubt that these courts possess it so far as is necessary and proper for the due exercise of their jurisdiction and powers, and no farther.^ § 260. Cases in which Jurisdiction to issue such orders has been entertained. — The power to issue injunctions and re- straining orders has been exercised in many cases,' though its exercise has been confined to those of unusual character, and more applications by far have been denied than granted.^ So far as anything can be settled by years of continuous practice, the authority of the court to issue a restraining order to pre- vent advantage being taken of the judgment below until the determination of the cause on appeal is established.' Such orders are most frequently made in cases where public interests are involved, as when the controversy relates to the possession of a public office;' but they will not be issued in any case un- less the fact that the judgment appealed from is erroneous is apparent on the face of the record, and the rights of the appel- lant can not be protected by a supersedeas. The exercise jOf this power in cases where it has been invoked is seldom shown by the published reports, because, in the opinions pronounced, no notice has been taken of the orders.' But a recent case in which such an order was issued to prevent the contestant in an election case from taking possession of an office to which 'R.S. 1894, §1349; Lewis v.MUion, Mode v. Board, etc., 141 Ind. 574; 4 Ind. App. 105. Fors3'the v. City of Hammond, 137 2 R. S. 1894, §§ 1161, 1349. Ind. 426. 'Elliott's App. Proc, § 504. " Elliott's App. Proc, § 512. *I«wis V. Fillion, 4 Ind. App. 105; 'Lewis v. Fillion, 4 Ind. App. 105. State V. Biddle, 36 Ind. 138; Walls v. But see Elliott's App. Proc, § 512. Palmer, 64 Ind. 493. » Leech v. State, 78 Ind. 670. See * Leech v. State, 78 Ind. 570; Lewis Mode v. Board, etc., 141 Ind. 574. V. Fillion, 4 Ind. App. 105. See 'Leech v. State, 78 Ind. 570, 579. § 261 EXTEAOKDINARY JURISDICTION OF SUPREME COURT. 373 he had been declared entitled on grounds that were clearly ille- gal, may be consulted as an illustration of a case in which such an order would issue.' In the case cited, the fact that a restraining order was issued is not shown by the opinion of the court, but appears from an entry in the court docket. § 261 . Cases in which Jurisdiction to issue such orders has been disclaimed. — The authority of the higher courts to issue extraordinary writs is merely auxiliary to the power of decid- ing appeals,^ and extends only to the restraint of that which will impede or render fruitless any disposition that may be made of a pending appeal.^ Even though an appeal is pending, the court has no jurisdiction to issue such a writ for the pur- pose of controlling the action of parties to the appeal in mat- ters not connected with it,' and even if an order restraining the parties from taking some action not directly involved in- the appeal should be obtained from one of the judges, it will be dissolved when it is shown at the hearing that it only af- fects'the private rights of the parties.^ Thus, an injunction to prevent the erection of a monument on the grave of appel- lant's ancestor, of whose estate she was administratrix, was refused where the pending appeal involved only the liability of the estate for the cost of such monument.^ And an injunc- tion to prevent the erection of a new court-house, pending an appeal in an action involving the removal of a cou'nty seat, was denied on the ground that building a court-house in a new loca- tion does not involve the removal of the county seat to that loca- tion, and such action could not interfere with the authority, of the court to enforce its final judgment in the pending appeal.' The supreme court has also refused to restrain the people liv- ing in certain territory that was sought to be annexed to a city 'Weakley V. Wolf, 148 Ind. 208. Forsythe v. City of Hammond, 137 ' Elliott's App. Proc, §§ 504, 505, 507. Ind. 426. ' Mode V. Board, etc., 141 Ind. 574; = Lewis v. Pillion, 4 Ind. App. 105; Forsythe v. City of Hammond, 137 Mode v. Board, etc., 141 Ind. 574. I° E. S. 1894, § 676. « Cummings v. Girton, 19 Ind. App. ^ Shoemaker v. Smith, 100 Ind. 40. 248. » R. S. 1894, § 676. 'Kelley v. Adams, 120 Ind. 840; «See Line v. State, 181 Ind. 468. Porter v. Raid, 81 Ind. 569; McOole = Elliott's App. Proc, § 573. v. Loehr, 79 Ind. 430. § 271 COSTS OF AN APPEAL. 383 bound to pay any part of the costs of the appeal, but they must be paid by his co-parties who prosecuted or defended it.' The fee for procuring the transcript is a part of the costs on appeal/ and, in case the appellee should procure the dismissal of the appeal by satisfying the judgment appealed from, he is still liable to the appellant for the costs of taking the appeal, in- cluding the cost of the transcript.' The cost of the transcript includes the fees paid to a stenographer for writing out the evidence to be incorporated in a bill of exception.' The costs of, an appeal are usually taxed by the clerk without any ex- press direction from the court, but the party thinking himself aggrieved by the action of the clerk has a right to call on the court to retax the costs.' In order to be sufificient a motion to retax costs must be verified,^ and must set forth specifically the costs which have been taxed, specifying wherein they are erroneous. The motion should be accompanied by a brief set- ting forth the reasons for making it.' Unless these rules are complied with, a motion to retax costs will be overruled without consideration.' § 271. Liability for costs in criminal case. — Where the defendant in a criminal case is found guilty, he is liable for all costs, unless the court or jury trying the cause expresslj' finds otherwise.' But when the defendant is acquitted, he is not liable for any costs, except the costs of a successful appeal by the state." The authority of the court or jury to exempt a defendant from the payment of costs although he is convicted is not an arbitrary power, but should be exercised only for good cause." The power, however, undoubtedly exists,'^ and when it is exercised the defendant can not be required to pay any costs that have accrued in the court below. But even the ' Price V. Barnes, 7 Ind. App. 1, 11. ' Eule 14 Sup. Ct. ' E. S. 1894, § 677. « Louisville, etc., R. Co. v. Palmer, 'Monnett v. Hemphill, 110 Ind. 13 Ind. App. 161, 164. 299. 9 R. S. 1894, § 1907. * Wright V. Wilson, 98 Ind. 112. " E. S. 1894, § 1908. ^See Price v. Barnes, 7 Ind. App. 1. "Welsh v. State, 126 Ind. 71. ' Riile 12 Sup. Ct. 12 State v. Sevier, 117 Ind. 338 384 APPELLATE PRACTICE. § 271 exercise of this power' by the court or jury trying him could not have the effect to relieve a defendant from liability for the payment of costs which he might make by appealing to the supreme court. A defendant who prosecutes an unsuccessful appeal to the supreme court must pay the costs he makes, as well as any costs which may have been adjudged against him in the court below.' Even where an appeal by the defendant is successful and the judgment is reversed, if the reversal does not amount to an acquittal of the defendant, and the cause is sent back for a new trial, the costs of appeal will await the final disposition of the case and must be paid by the defend- ant, if he is ultimately convicted.^ But if the court to which the appeal was taken decides that no offense was committed, or that the court below had no jurisdiction, so that the judgment of reversal puts an end to the prosecution and leaves to the court below the mere duty of dismissing it, the defendant may be regarded as acquitted, and is not liable for costs. ^ The appellant in a criminal case can not be required to pay any of the costs of appeal before the appeal is determined.' Since the state pays no costs in any case,° a defendant who should be compelled to pay costs in advance would be without recourse to recover them back in case of his ultimate acquit- tal;^ but even where a defendant is acquitted, if the state takes an appeal on a reserved question of law and the appeal is sus- tained, he must pay the costs of the higher court.' In case of an appeal from an order discharging the defendant because of the insufficiency of the indictment or information, if the judg- ment should be reversed and the cause remanded for trial, the costs of the appeal should await the ultimate determination of the cause, to be paid by the defendant in case he is convicted, but not if he is acquitted. Smith ir. State, 5 Ind. 541; State ^ Board, etc., v. Blake, 21 Ind. 32; V. Wallace, 41 Ind. 445. State v. Wallace, 41 Ind. 445. ' Smith V. State, 5 Ind. 541. " State v. Wallace, 41 Ind 445. 'Smith V. State, 5 Ind. 541. ' E. S. 1894, § 1915; State v. Tumey, * State V. Wallace, 41 Ind. 445. 81 Ind. 559. § 272 COSTS OF AN APPEAL. 385 § 272. Liability of sureties on appeal bond and cost bond. — The obligation of the surety on any appeal bond required by law is iixed by the statute which requires the bond to, be taken/ and all informalities and defects in such bonds are cured by statute/ so as to bind the sureties to the fall extent contemplated by the law requiring such bond to be given to the amount of the penalty specified in the bond. But where the amount of the penalty is distinctly stated, the sureties can not be held beyond the amount of such penalty.' Where the undertaking is merely to pay "all costs" or "all costs and damages," the liability of the sureties must be determined by the amount of the costs and the damages suffered. If the appellee is dissatisfied with the bond given, he may apply for the execution of a new bond. Where the supreme court ac- cepts a cost bond, there can be no doubt of its authority to require a new bond for any cause which it deems sufficient, and that court could undoubtedly require a new bond in case the clerk of the supreme court or the circuit court should ac- cept a supersedeas bond with insufficient penalty or sureties. Where an appeal bond is taken by the trial court upon grant- ing a term appeal, and the sureties afterward become insolv- ent, the supreme court may afterward order the filing of a new bond with additional sureties;* and when such a bond is filed by order of court or agreement of parties, the sureties thereon will be liable to the same extent as the sureties on the original bond.* But the supreme court has no authority to increase the penalty of an appeal bond taken by the trial court,* and it will not order the filing of a bond with additional sureties un- less it is shown that some change in the situation of the sure- ' Opp V. Ten Eyck, 99 Ind . 345 ; Opp DeWolf , 112 Ind. 1 . Bat see Elliott's V. Ward, 125 Ind. 241 ; Stults v. Zahn, App. Proc, §§ 360, 361. 117 Ind. 297; Carver v. Carver, 115 * Ruschaupt v. Carpenter, 63 Ind. Ind. 539. 359. ' R. S. 1894, § 1235. ^ Buchanan v. Milligan, 125 Ind. 332. ' Line v. State, 131 Ind. 468 ; Mead- « Midland E. Co. v. Wilcox, 111 Ind. ows V. State, 114 Ind. 537 ; Graeter v. 561. 25 — App. Practice. 386 APPELLATE PRACTICE. § 273 ties has been made since the bond was approved by which it has ceased to be sufficient/ Whfere a bond is given to obtain a term appeal, or is given for any purpose in another appeal, and that appeal is aban- doned, the sureties are not liable for the costs that may accrue in an appeal that is afterward taken, nor for the payment of a judgment that may be rendered or aflBrmed in the subsequent appeal.^ Thus, where a term appeal is prayed, and an appeal bond given, but the appeal is not perfected within the time allowed, and the appellant afterwards files his transcript and proceeds under the law permitting an appeal to be taken after a term appeal has been abandoned, the sureties on the appeal bond are not liable in the second appeal/ The fact that the appellant does not join in tlie execution of an appeal bond does not relieve the sureties from liability to the full extent stated in their obligation.' § 273. Manner of collecting costs in higher courts. — Exe- cutions for the costs adjudged against the parties to appeals are issued by the clerk of the supreme court in the same man- ner that executions are issued from other courts of record.' They are made returnable as in other cases,^ and are served by the sheriffs of the different counties in the state in the same manner as other executions.' In case an execution is improp- erly issued from the supreme court, the remedy of the party against whom it is issued is by moving the supreme court to set aside the writ. He can not enjoin the sheriff from execut- ing it.' The clerk of the supreme court does not issue execu- ' Midland R. Co. v.Wilcox, 111 Ind. ■• Hinkle v. Holmes, 85 Ind. 405 ; 561 ; Euschaupt v. Carpenter, 63 Ind. Raileback v. Greve, 58 Ind. 72 ; Su- 359. preme Council, etc., v. Boyle, 15 Ind. 2 McKinney v. Hartman, 143 Ind. App. 342 ; Thorn v. Savage, 1 Blackf . 224; Supreme Council, etc., v. Boyle, 51. 15 Ind. App. 342; Midland E Co. v. 'E. S. 1894, § 678. Holloran, 14 Ind. App. 392. « R. S. 1894, § 678. 3 McKinney v. Hartman, 143 Ind. 'E. S. 1894, § 7802. 224; Supreme Council, etc., v. Boyle, 'Macy v. Lloyd, 23 Ind. 60. 15 Ind. App. 342; Midland E. Co. v. Holloran, 14 Ind. App. 392. § 273 COSTS OF AN APPEAL. 387 tions on the judgments affirmed by that court, but the judg- ment of affirmance is certified to the clerk of the court below, who is authorized to issue execution.' But judgments for costs are collected by execution from the court above. ' E. S. 1894, § 679. CHAPTER 23. REVIEW OF AN EXERCISE OF DISCRETION. § 274. Abuse of discretion is cause § 278. Change of venue. for reversal. 279. Compelling election between 275. Granting or refusing continu- counts of indictment. ance. 280. Control of argument. 276. Amendment of pleadings. 281. Examination of witnesses. 277. Staying second action for same 282. General control of case. cause. § 274. Abuse of discretion is cause for reversal. — In the con- duct of legal proceedings and the decision of cases, much is necessarily left to the determination of the trial judge in the exercise of his best judgment. If the law has laid down a rule of conduct or decision under given circumstances, he is bound to follow that rule,' and the matter can not properly be said to be left to his discretion. But where the matter is not suscept- ible of control by fixed rules, it must be left to the discretion of the judge or the court. ^ No principle is better settled than the principle that when a matter is confided to the discretion of an ofiicer the reasonable exercise of that discretion will not be controlled by the courts on appeal or otherwise.^ This rule applies even to ministerial officers and inferior tribunals, and the determination of a matter by a board of county com- missioners,* or drainage commissioners,' or the common coun- 1 Elliott's App. Proc, §601. ' Eicketts v. Spraker, 77 Ind. 371, 'Elliott's App. Proc, §§ 597,599. 377. The question whether a ueniVe de novo * Robling v. Board, etc., 141 Ind. shall be granted is not determined by 522; Board, etc., v. Davis, 136 Ind. the discretion of the court but by fixed 503; Board, etc., v. Fullen, 111 Ind. rules. Wines V. State Bank, — Ind. 410. App. — , 53 N. E. Rep. 389. ^ ^^acer v. State, etc., 131 Ind. 393. (388) § 274 REVIEW OF AN EXERCISE OF DISCRETION. 389 cil of a city,' or by the school trustees of a township or city/ or a county surveyor/ or board of ditch viewers/ will not be set aside or controlled by the courts, if the officers to whom discretionary power was confided have acted in good faith. It necessarily follows that the legitimate exercise of discretion by officers of the high rank of judges of the principal courts of original jurisdiction in the state will not be interfered with.* But courts are organized for the purpose of administering law and dispensing justice, and no judge or court has any right to exercise discretionary powers in such a manner as to amount to a deni'al of justice; accordingly, when the exercise of a dis- cretionary power necessarily results in the suppression of facts on which the rights of the parties depend, ° or is otherwise shown to have prevented the appellant from having a reason- able opportunity to establish his rights in the trial court, and especially if the act of the trial judge has been influenced by malice or corruption,' it will be set aside. Thus, where a party to an action, whose intimate knowledge of the questions in- volved makes his presence at the trial indispensable, is sick and unable to attend court," a refusal to continue the case may amount to a positive denial of justice and constitute such an abuse of discretion as will be cause for reversing a judgment against him.' Many cases expressly affirm or clearly recognize the rule that where the court has so exercised a disc'retionary power as to cause manifest prejudice to the legal rights of a party, and that fact is affirmatively shown on appeal, it will be cause for reversing the judgment/" while many others imply the existence ' City of Richmond v. Davis, 103 « Hardesty v. Hine, 135 Ind. 72. Ind. 449. ' State v. Gray, 93 Ind. 303. ' Cole V. State, 131 Ind. 591 ; Fatout » Welcome v. Boswell, 54 Ind. 297 ; V. Board, etc., 102 Ind. 223; State v. Schwartz v. Parsons, — Ind. App. Gray, 93 Ind. 303. — , 53 N. E. Rep. 785 ; Post v. Cecil, ' Artman v. Wynkoop, 132 Ind. 17; 11 Ind. App. 362. Terre Haute, etc., R. Co. v. Soice, 128 ^ Section 275, post. Ind. 105; Bunnell v. Peet, 123 Ind. "Staser v. Hogan, 120 Ind. 207 436; Markley v. Rudy, 115 Ind. 533. Spaulding v. Spaulding, 133 Ind. 122 ' Wilson V. Talley, 144 Ind. 74. Welcome v. Boswell, 54 Ind. 297 ^ Elliott's App. Proc, § 598. Conner v. Conner, 29 Ind. 48 390 APPELLATE PRACTICE. § 275 of such a rule by asserting that a cause will not be reversed for an abuse of discretion unless it is shown to have harmed appellant/ It necessarily follows that the exercise of any dis- cretionary power by the trial court may be reviewed so far as to determine whether or not the power was abused,^ and if it is shown to be abused to the prejudice of the complaining party, the judgment must be reversed for that cause. The fact that the court abused its discretion must be affirmatively shown/ and also the fact that such abuse resulted in injury to the com- plaining party/ because every presumption vrill be indulged in favor of the action of the trial court so far as the matter is left to be controlled by presumptions. Just what amounts to an abuse of discretion must be determined by the facts of each case, and by the effect on the rights of parties which the par- ticular exercise of discretionary power under the facts of a given case may have.' The discretion of the trial court is sus- ceptible of abuse by a failure or refusal to make a proper rul- ing, as well as by making an improper one, and the refusal of the court to act is subject to the same control as its affirmative action." § 275. Granting or refusing continuance. — The court in which a cause is pending is required to grant a continuance on proper application for certain causes,' and may continue the trial on motion for any good cause, to be shown by affida- vit.' A motion to postpone or continue a cause for any reason which is not made an absolute ground for a continuance is always addressed to the discretion of the trial court,' and its Schwartz v. Parsons, Ind. App. ^ Elliott's App. Proc, § 602. — , 53 N. E. Eep. 785 ; Post v. Cecil, ^ Manor v. Board, etc., 137 Ind. 367, 11 Ind. App. 362. 386. ^McCue V. McCue, 149 Ind. 466; * Section 254, ante. Yost V. Yost, 141 Ind. 584; Cerealine ^ Elliott's App. Proc, § 603. Mfg. Co. V. Bickford, 129 Ind. 236; « Elliott's App. Proc, §605. Stipp V. Claman, 123 Ind. 632; Kah- ' R. S. 1894, §§ 413, 414, 6709. lenbeck v. State, 119 Ind. 118; Mc- 'R. S. 1894, §415. Nuttv. McNutt, 116 Ind. 545; Post V. ^ cerealine, etc., Co. v. Bickford, State, 14 Ind. App. 452; Noblesville, 129 Ind. 236; Moulder v. Kempff, 115 etc, Co. V. Teter, 1 Ind. App. 322. Ind. 459; Post v. State, 14 Ind. App. § 275 REVIEW OF AN EXERCISE OF DISCRETION. 391 ruling on the motion can only be set aside for an abuse of that discretion. The granting or refusal of a continuance on ac- count of the absence of witnesses will only be cause for the re- versal of a judgment when it is shown that the court abused its discretion to the injury of the complaining party in making such ruling.^ If the trial judge has any reason to believe that the application for a continuance is not made in good faith, as where one continuance has already been had on account of the absence of a witness, and a second continuance is asked for the same cause, ^ an especially clear and strong showing of abuse of its discretion in refusing the second continuance must be made, or the action of the trial court will be upheld. The court is also bound to grant a continuance because of the ab- sence of a party under some circumstances,' but in all cases not covered by the statute, the decision whether a continuance shall be granted for this cause is confided to the sound legal discretion of the court. But where a party who is also an im- portant witness, and whose personal knowledge of the case makes his presence necessary in order that his counsel may properly present it, is detained away from court by sickness, it may be reversible error to refuse a continuance until he can be present/ Where the chief counsel in a cause is a member of the legis- lature and is engaged in attending its sessions, the court is bound to grant a continuance on proper application.^ But in other cases, an application for a continuance because of the absence of counsel on account of sickness or otherwise is addressed to the sound legal discretion of the court, and its action in granting or refusing a continuance will not be dis- 452, Post V. Cecil, 11 Ind. App. 362; ^E. S. 1894, § 6709. Brandt v. State, 17 Ind. App. 311. * Welcome v. Boswell, 54 Ind. 297 ; \ Cerealine Mfg. Co. v. Bickford, 129 Schwartz v. Parsons, — Ind. App. Ind. 236; Brandt v. State, 17 Ind. — , 53 N. E. Eep. 785; Post v. Cecil, App. 311 ; Post V. State, 14 Ind. App. 11 Ind. App. 362. See Fisse v. Katzen- 452; Post V. Cecil, 11 Ind. App. 362. tine, 93 Ind. 490. 'Cerealine Mfg. Co. v. Bickford, 129 * R. S. 1894, §414. Ind. 236; Breedlovev. Bundy, 96Ind. 319. 392 APPELLATE PRACTICE. § 276 turbed on appeal, unless its discretion has clearly been abused.' It also rests in the discretion of the court to determine whether a person accused of crime shall have his trial postponed on account of public excitement in the county where he is to be tried/ and the supreme court will only interfere with the rul- ing of the court on such a question when a very strong case of abuse of discretion is shown. § 276. Amendment of pleadings. — Any pleading in a civil case may be amended by either party, as of course, at any time before it is answered, or afterward by leave of court.' And the court may, at any time, in its discretion and upon such terms as may be deemed proper for the furtherance of justice, permit the amendment of a pleading in almost any particular.' The statute is also very liberal in permitting amendments to pleadings in criminal cases.* These statutes give the trial court a very wide discretion in the amendment of pleadings. ° It may allow amendments to be made after the issues have been closed,' or may refuse permission to make such amend- ments,' and its action will only be subject to review on appeal for an abuse of its discretion' by which the complaining party is shown to have been injured." Its determination of such a question will be disapproved by an appellate court, 1 Moulder v. Kempff, 115 Ind. 459 ; ' Langsdale v. Woollen, 99 Ind. 575 ; Evansville v. Hawkins, 111 Ind. 549 ; Citizens' State Bank v. Adams, 91 Belck V. Belck, 97 Ind. 73; Board, Ind. 280; Shropshire v. Kennedy, 84 etc., V. Brown, 4 Ind. App. 288 ; Mc- Ind. Ill ; Lindley v. Sullivan, 133 Ind. Clary v. State, 75 Ind. 260. 588. 2 Walker v. State, 136 Ind. 663. ' Eaymond v. Wathen, 142 Ind. 367 ; 5 R. S. 1894, §397. ' Lindley v. Sullivan, 133 Ind. 588; *R. S. 1894, § 399. Wabash, etc., R. Co. v. Morgan, 132 5 R. S. 1894, § 1804. Ind. 430; Chicago, etc., R. Co.v. Sun- " Burnett V. Milnes, 148 Ind. 230. ter, 128 Ind. 213; Smith, etc., Corp. 'Hedrick v. Whitehorn, 145 Ind. v. Byers, 20 Ind. App. 51; Bozarth 642; Chicago, etc., R. Co.v. Hunter, v. McGillicuddy, 19 Ind. App. 26; 128 Ind. 213; Chicago, etc., R. Co. v. Brandt v. State, 17 Ind. App. 311. .Tones, 103 Ind. 386; Hardestyv. Hine, "Chicago, etc., R. Co. v. Hunter, 135 Ind. 72; Burt v. Andis, 98 Ind. 59; 128 Ind. 213; Board v. Castetter, 7 Burns v. Barenfield, 84Ind. 43; Dag- Ind- App. 309; Peigh v. Huffman, 6 gett V. Flanagan, 78 Ind. 253. -' Ind. App. 658. § 276 REVIEW OF AN EXERCISE OF DISCRETION. 393 however, when it appears that substantial injustice was done by the ruling complained of.^ The question whether a proposed amendment is in further- ance of justice has been proposed as a test for determining whether the trial court has authority to permit it to be made.' But after the trial court has made a ruling, the party complain- ing of it has the burden of showing its prejudicial character; for unless an abuse of discretion by the trial court is clearly shown, its ruling will be presumed to have been correct.^ The action of the trial court in permitting amendments to be made during the trial,' and even after the evidence has all been heard,* and the verdict returned,* and a motion in arrest of judgment has been made,' has been upheld. But such an amendment may only be permitted for the purpose of avoiding a variance, or supplying an allegation of a fact which has been proved, and not to remedy an infirmity caused by a failure of the proof." This power of amendment extends to permitting the names of parties to be struck out,' or new parties to be substituted," and to adding or striking out any material aver- ment." The court in the exercise of a sound discretion may even suggest an amendment to be made to a pleading in the course of the trial, when it becomes apparent that such an amend- ment is necessary in order that complete justice may be done to the parties.'^ It has been held to be within the discretion of ^ Chicago, etc., E. Co. v. Jones, 103 App. 119; Adams v. Main, 3 Ind. Ind. 386. App. 232. ^ Elliott's App. Proc, § 608. * Toledo, etc., R. Co. v. Stephenson, 'Levy V. Chittenden, 120 Ind. 37; 131 Ind. 203. Graild Eapids, etc., Co. v. Ellison, * Raymond v. Wathen, 142 Ind. 367. 117 Ind. 234; Burns v. Fox, 113 Ind. ' Raymond v. Wathen, 142 Ind. 367. 205; Judd v. Small, 107 Ind. 398; Oit- « Elliott's App. Proc, §§ 610, 611. izens' State Bank v. Adams, 91 Ind. 'Branson v. Henry, 140 Ind. 455; 280. Stanton v. Kenrick, 135 Ind. 382. * Raymond v. Wathen, 142 Ind. 367; '» Bell v.Oorbin, 136 Ind. 269 ; Lake Lindley v. Sullivan, 133 Ind. 588; Wa- Erie, etc., R. Co. v. Town of Boswell, bash, etc., R. Co. v. Morgan, 132 Ind. 137 Ind. 336 ; Fargo & Co. v. Cutshaw, 430; Chicago, etc., R. Co. v. Hunter, 12 Ind. App. 392. 128 Ind. 213 ; Diltz v. Spahr, 16 Ind. " R. S. 1894, § 399. App. 591; Keck v. State, 12 Ind. "Warden v. Nolan, 10 Ind.App. 334. 394 APPELLATE PRACTICE. § 277 the court to permit an amendment changing the parties and the nature of the action, where it is apparent that the plaintiff has mistaken his form of action.' But the refusal of the court to permit this to be done can seldom constitute reversible er- ror.* Where a material amendment of a pleading which ne- cessitates additional proof by the opposite party is made after a case is called for trial, such party is entitled to a continu- ance at the cost of the party making the amendment,' and un- less such a continuance is applied for and refused, a party can seldom be in a position to successfully claim that he was preju- diced by an amendment. Where the wrong word is used in a pleading, and it is evident what word was intended, the plead- ing will be deemed to have been amended by the substitution of the right word, and the judgment will not be reversed if the pleading when so amended would be sufficient.* § 277. Staying second action for same cause. — Where the plaintiff dismisses his action or suffers a nonsuit, and after- ward brings a second action for the same cause without having paid the costs of the first action, it will be presumed that the proceeding is vexatious,^ unless the contrary is affirmatively shown.* Where a second proceeding is brought under such circumstances, it is within the discretion of the trial court to stay the proceedings in the second action until the costs of the first action are paid.' The ground for issuing an order stay- ing the proceedings is that the plaintiff is acting vexatiously.' But where the plaintiff affirmatively shows that the. second 1 Boyd V. Caldwell, 95 Ind. 392. less v. Petty, 98 Ind. 53 ; Cashman v. ^Thomas V. Hawkins, 13 Ind. App. Brownlee, 128 Ind. 266; Sellers v. 318. Myers, 7 Ind. App. 148. 3 R. S. 1894, § 397 ; Elliott's App. ' Carrothers v. Carrothers, 107 Ind. Proc, §607. 530; Clemans v. Buftenbarger, 106 *Eoss V. Banta, 140 Ind. 120; Praigg Ind. 16; State v. Howe, 64 Ind. 18; V. Western, etc., Co., 143 Ind. 358. Cashman v. Brownlee, 128 Ind. 266; 5 State V. Howe, 64 Ind. 18 ; Kitts v. Harless v. Petty, 98 Ind. 53 ; Kitts v. Willson, 89 Ind. 95; Clemans v. Buf- Willson, 89 Ind. 95. fenbarger, 106 Ind. 16; Carrothers v. ' State v. Howe, 64 Ind. 18, and au- Carrothers, 107 Ind. 530. thorities cited. « Kitts V. Willson, 89 Ind. 95 ; Har- § 278 KEVIEW OF AN EXERCISE OP DISCRETION. 395 action is not vexatious, the court may properly refuse to stay the proceedings ; ' and if the fact that the second action is not vexatious and that the plaintiff has a meritorious cause of action, but is unable to pay the costs of the first proceeding, should be clearly shown, granting a stay of proceedings may amount to such an abuse of discretion as will be cause for reversing the judgment/ Such a stay can not be claimed as a matter of right; but the action of the court in granting or refusing such a stay is to be controlled by a sound legal dis- cretion in view of all the facts and circumstances of each case/ Tlie supreme court has declared that it has no authority to issue a mandamus directing a trial court to proceed with a second action by a judgment plaintiff pending an appeal from the jucjgment in the first action, on the final disposition of which his right to maintain the second action depends/ It seems reasonable that a trial judge who exercises his discretion to restrain the prosecution of an action pending an appeal involv- ing the same question should not be called on to defend an action to determine whether the stay ought to have been granted. But it may well be doubted whether the case cited does not go too far in declaring the lack of authority in the supreme court to compel a trial court to proceed with a cause. ^ § 278. Change of venue. — When proper application is made for a change of venue from the judge or the county in a civil case,* the court has no discretion, but the change must be granted.' The same is true when a proper application for a change of judge in a criminal proceeding is presented,' or when 'Oashman v. Brownlee, 128 Ind. 'Rout v. Ninde, 118 Ind. 123; Cen- 266; Kittsv. WilIson,89Ind.95; Har- ter Tp. v. Board, etc., 110 Ind. 579; less V. Petty, 98 Ind. 53. Burkett v. Holman, 104 Ind. 6; Lou- ' Sellers v. Myers, 7 Ind. App. 148. isville, etc., E. Co. v. Martin, 17 Ind. 'Kitts V. Willson, 89 Ind. 95; Har- App. 679; Brow v. Levy, 3 Ind. App- less V. Petty, 98 Ind. 53 ; Cashman v. 464. firownlee, 128 Ind. 266; Sellers v. 'E. S. 1894, §§1838, 1839; Bern- Myers, 7 Ind. App. 148. hamer v. -State, 123 Ind. 577 ; Duggins * State V. Biddle, 36 Ind. 138. v. State, 66 Ind. 350; Manly v. ^Elliott's App. Proc, § 516, note. State, 52 Ind. 215. ^E. S. 1894, §416,417. 396 APPELLATE PRACTICE. § 279 an application for a change of venue from the county is made in a prosecution in which a judgment imposing a sentence of death might be pronounced.' But the statute expressly confides to the discretion of the trial court, the question whether a change of venue from the county shall be granted to a defendant charged with a felony that is not punishable by death/ and an exercise of this discretion will only be cause for reversing a judgment on appeal when its flagrant abuse is shown.' It must also be affirmatively shown that this abuse of discretion resulted in injury to the complain- ing party.* A mere error of judgment in failing to decide correctly on which side of the question whether the defendant is entitled to a change of venue lies the preponderance of evi- dence is not an abuse of discretion.* In view of the express grant to the trial court of discretion to decide whether a change shall be granted in such a case, the supreme and ap- pellate courts will seldom undertake to control its action in such a matter. The selection of a special judge in case a change of venue from the judge is taken is confided to the trial court/ and the appointment of an attorney as special judge will only be cause for reversing the judgment where the discretion of the court has clearly been abused.' § 279. Compelling election between counts of indictment. — Where there are two or more counts in an indictment charg- ing felonies that are apparently distinct, it is not a matter of course that the prosecutor shall be required to elect on which count he will go to trial." There could be no possible use in inserting several counts charging the same act in different 'R. S. 1894, §1840; Hunnel v. terson v. State, 144 Ind. 240; Walker State, 86 Ind. 431. v. State, 136 Ind. 663; Eeinhold v. 2R. S. 1894, §1840. State, 130 Ind. 467. ' Hauk V. State, 148 Ind. 238 ; Con- ^ Conrad v. State, 144 Ind. 290. rad V. State, 144 Ind. 290; Ransbot- "E. S. 1894, §§ 419, 1839. torn V. State, 144 Ind. 250; Walker v. ' Hauk v. State, 148 Ind. 238; Wal- State, 136 Ind. 663; Reinhold v. ter v. Walter, 117 Ind. 247. State, 130 Ind. 467, 469, and author!- » McGregg v. State, 4 Blackf . 101 ; ties cited; Jones v. State, 152 Ind. 318. Dantz v. State, 87 Ind. 398; Beaty v. * Hauk V. State, 148 Ind. 238; Mas- State, 82 Ind. 228. § 279 REVIEW OF AN EXERCISE OF DISCRETION. 397 form, if the defendant could, in effect, have them all but one struck out of the indictment. Of course, a single prosecution can not be maintained for two or more separate offenses, but if it is shown to the court by the statement of the prosecuting attorney or otherwise that each of the different counts of the indictment really charges the same offense in different form, the state need not be required to elect on which count the defendant shall be tried.' Many cases lay down the rule that it is wholly within the discretion of the trial court whether an election on the part of the prosecution shall be required,^ and so far as its ruling on a preliminary motion of this kind is concerned that statement is correct.' The court has control over the introduction of the evidence and may require an election by the prosecutor at any time in the course of the trial when the evidence may dis- close that the offenses charged relate to two or more different transactions,* and may even withdraw all the counts of the in- dictment but one by an instruction given after the evidence is all in.' It is therefore proper that the question whether an election shall be required in the first instance should be left entirely to the discretion of the trial court. Where it is devel- oped by the evidence that the different counts in the indict- ment charge different and distinct offenses which can not be joined in the same prosecution, the court may then compel an election as to which offense the state will rely on,^ and on proper request should do so. Where the language of the in- dictment covers two or more distinct transactions, each of which constitutes a separate offense, it is reversible error for the court to refuse to compel an election' as to which offense ' Glover V. State, 109 Ind. 391 ; Mer- 63 Ind. 567; Short v. State, 63 Ind. rick V. State, 63 Ind. 327 ; Mershon v. 376 ; Snyder v. State, 59 Ind. 105. State, 51 Ind. 14; Gandolpho v. State, « Glover v. State, 109 Ind. 391. 33 Ind. 439. s Hauk v. State, 148 Ind. 238, 248. 2 Myers v. State, 92 Ind. 390 ; Lam- <> Glover v. State, 109 Ind. 391 ; Long phier v. State, 70 Ind. 317. v. State, 56 Ind. 182. = Glover v. State, 109 Ind. 391, 400; , ' Lebkovitz v. State, 113 Ind. 26; Dantz v. State, 87 Ind. 398; Ghoen V. Richardson v. State, 63 Ind. 192; State, 85 Ind. 209; State' v. Dufour, Long v. State, 56 Ind. 182; Squires v. State, 3 Ind. App. 114. 398 APPELLATE PEACTICE. § 280 the defenaant shall be prosecuted for, even though the prose- cution may have been based on a single count of the indict- ment. But until it is clearly shown that the several offenses charged did not all grow out of a single act of the defendant, the question whether the prosecutor shall be put to his elec- tion rests entirely within the discretion of the trial court.' § 280. Control of argument. — It is within the sound legal discretion of a court trying a civil cause to limit the time al- lowed to counsel for argument,^ and if no question of fact is presented by the evidence, the court may refuse to permit any argument whatever.^ Even when argument is permitted, the trial court in its discretion may restrain counsel from arguing a purely legal question in a civil case.' When the time al- lowed for argument is limited by the court/ or permission to argue the case is altogether refused,* the action of the court will be presumed to have been correct, and will be upheld un- til it is affirmatively shown that the court abused its discretion to the injury of the appellant; but where the right of a party to be heard in argument is unjustly abridged, and a proper ex- ception is saved, the judgment may be reversed for that cause.' The reservation of a proper exception is an important mat- ter, and even in a criminal case, where the defendant has a constitutional right to be heard by himself and counsel,' the refusal of the court to permit an argument of the length de- manded by the defendant will not be cause for reversing the judgment unless the appellant has saved a proper exception to 'Gloverv. State, 109 Ind. 391; Dantz ,' Smith v. Harris, 76 Ind. 104; V. State, 87 Ind. 398; Hauk v. State, Heagy v. State, 85 Ind. 260; Rogers 148 Ind. 238; Choen v. State, 85 Ind. v. State, 99 Ind. 218. For the rule in 209 ; State v. Dufour, 63 Ind. 567 ; criminal cases, see below. Short V. State, 63 Ind. 376. ■'Rogers v. State, 99 Ind. 218. ^Baldwin v. Burrows, 95 Ind. 81; ,° Baldwin v. Burrows, 95 Ind. 81. Musselman v. Pratt, 44 Ind. 126 ; Eos- « Smith v. Harris, 76 Ind. 104. ser V. McColly, 9 Ind. 587; Cory v. ' Elliott'svApp. Proc, § 616. Silcox, 5 Ind. 370; Elliott's App. 'Const., art. 1, § 13; E. S. 1894, Proc. §616. §58. § 280 REVIEW OF AN EXERCISE OF DISCRETION. 399 such refusal.' The court may also hear argument and the citation of authorities in support of or in opposition to a pro- posed instruction, and the extent to which such argument shall be permitted rests in the discretion of the trial court. ^ Its de- termination of such a matter, therefore, will only be reviewed on appeal for an evident abuse of discretion.' The control which the trial court exercises over the argument of counsel extends to the correction of any errors growing out of the mis- conduct of counsel in argument. Such misconduct may usu- ally be remedied by an instruction to the jury to disregard the improper statement, and a direction to counsel to keep within the record.* If the injured party thinks the misconduct of such a, gross character that it can not be remedied by any ac- tion of the court ^e should move to set aside the submission and discharge the jury,° or should move the court to take such other action as he deems necessary. Where the trial court does all it is asked to do towards removing the effects of the misconduct of counsel, it will be presumed, on appeal, that the appellant was not injured. ° While the refusal of the court to do anything toward remedying the misconduct of counsel in argument, upon being requested to do so, may entitle the com- plaining party to a new trial," it can only be so in case the misconduct was of such a material character as to make it ap- pear probable that it was the means of securing a wrong ver- dict.' ' Eobinson v. State, 152 Ind. 304. « Reed v. State, 141 Ind. 116 ; Staser 2 Staser V. Hogan, 120 Ind. 207, 222. v. Hogati, 120 Ind. 207; Nelson v. 'Staser V. Hogan, 120 Ind. 207, 222. Welch, 115 Ind. 270; Carter v. Car- * Anderson v. State, 147 Ind. 445; ter, 101 Ind. 450; Worley v. Moore; Pigg V. State, 145 Ind. 560; Johnson 97 Ind. 15; Ohoen v. State, 85 Ind. V. Brown, 130 Ind. 534; Staser v. Ho- 209; Chicago, etc., E. Co. v. Cham- gan, 120 Ind. 207; Kern v. Bridewell, pion, 9 Ind. App 510; Indianapolis, 119 Ind. 226 ; Grubb v. State, 117 Ind. etc., Co. v. Pugh, 6 Ind. App. 510. 277 ; Coleman v. State, 111 Ind. 563. ■ Lewis v. State, 137 Ind. 344 ; Sohlot- 5 Staser v. Hogan, 120 Ind. 207; ter v. State, 127 Ind. 493; Magnuson Kernv. Bridewell, 119 Ind. 226; Grubb v. State, 13Ind. App. 303; Indianapo- V. State, 117 Ind. 277; Coleman v. lis, etc., Co. v. Pugh, 6 Ind. App. 510; State, HI Ind. 563; Siberry v. State, Mainard v. Reider, 2 Ind. App. 115. 133 Ind. 677; Maybin v. Webster, 8 « Humbarger v. Carey, 145 Ind. 324; Ind. App. 547. Roose v. Roose, 145 Ind. 162 ; Buscher 400 APPELLATE PRACTICE. § 281 § 281. Examination of witnesses. — The order in which evi- dence shall be introduced,' the form of questions that may be put/ and the manner in which the examination of witnesses shall be conducted/ are necessarily left to the control of the trial court, and its action in such matters will only be reviewed for an abuse of discretion. The court may also separate the witnesses or refuse to separate them in its discretion.* It may determine the extent to which a witness may be cross-exam- ^ ined,' but it is forbidden to exercise its discretion in such a way as to deny a party a reasonable opportunity to test the ac- curacy of a witness's memory or the truth of his testimony. ° It may permit a party to question his own witness with great severity when the witness has shown himself hostile to the party that called him,' and its action in such a matter will not be cause for interference by an appellate court unless there was a clear abuse of discretion leading to manifest injustice.' The court may permit a witness who has been once exam- ined to be recalled for further examination,' or it may refuse to permit him to be re-examined.'" If the refusal to suffer a V. Scully, 107 Ind. 246; Shular v. Cottrell v. Cottrell, 81 Ind. 87; Indi- State, 105 Ind. 289; Proctor v. De- anapolis, etc., Co. v. Herrman, 7 Ind. Camp, 83 Ind. 559 ; Capron v. State, 11 App. 462, 469. Ind. App. 95; Lake Brie, etc., R. Co. V. ^McDonald v. McDonald, 142 Ind. Close, 5 Ind. App. 444. 55, 72; White, etc., Co. v. Gordon, 1 Western U. Tel. Co. v. Buskirk, 124 Ind. 495 ; Fleming v. Yost, 137 107 ind. 549; Shepard v. Goben, 142 Ind. 95; Randall v. State, 132 Ind. Ind. 318; Stipp v. Claman, 123 Ind. 539; Hinchcliff v. Koontz, 121 Ind. 532; Stewart V. Smith, 111 Ind. 526; 422; Wachstetter v. State, 99 Ind. Bryant v. State, 106 Ind. 549; Hursh 290; Ledford v. Ledford, 95 Ind. 283. V. Hursh, 99 Ind. 500; Goodwin v. ^Louisville, etc., R. Co. v. Wood, State, 96 Ind. 550. 113 Ind. 544; Vogel v. Harris, 112 ''City of Elkhart v. Witman, 122 Ind. 494; Barnett v. Feary, 101 Ind. Ind. 538 ; Goudy v. Werbe, 117 Ind. 95 ; Brown v. Owen, 94 Ind. 31 ; 154; Hunsinger v. Hofer, 110 Ind. Mitchell v. Tomlinson, 91 Ind. 167; 390; Kyle v. Miller, 108 Ind. 90; Hyland v. Milner, 99 Ind. 308; Elli- Board, etc., v. Dombke, 94 Ind. 72; ott's App. Proc, §618. Hilton V. Mason, 92 Ind. 157. 'Conway v. State, 118 Ind. 482. 3 Conway v. State, 118 Ind. 482; « Conway v. State, 118 Ind. 482. Hinchcliff v. Koontz, 121 Ind. 422; "Swift v. Ratliff, 74 Ind. 426. White, etc., Co. v. Gordon, 124 Ind. ^'Morehouse v. Heath, 69 Ind. 509; 495 ; Fleming v. Yost, 137 Ind. 95. Nixon v. Beard, 111 Ind. 137. 'Detrick v. McGlone, 46 Ind. 291; § 282 REVIEW OF AN EXERCISE OF DISCRETION. 401 witness to be recalled should lead to' the exclusion of material testimony, it might be held an abuse of discretion by the court; but where the proposed testimony on re-examination is a mere repetition of that given on the first examination, it can never be error to exclude it.' The number of witnesses that shall testify on a single point may be restricted within reasonable limits,^ and a ruling on this subject will only be disturbed on appeal for an evident abuse of discretion. ° The court may per- mit evidence in chief to be introduced by way of rebuttal in a proper case,' or may refuse to permit its introduction,^ and may even permit original evidence to be given after the argu- ment is concluded^ without subjecting the judgment to reversal on appeal, unless the appellant can show that its action was such an abuse of discretion as prevented him from having a fair opportunity to present his own case. § 282. General ^control of case. — The discretionary power of the court over the conduct of a case extends to all matters which are not susceptible of definition by fixed rule. It may limit within reasonable bounds the examination of jurors on the voir dire,'' and may accept as a juror one who has expressed an opinion that the defendant is guilty, upon a proper showing that no such an opinion has been formed as would prevent him from returning an impartial verdict.' The trial court may determine at what hours it will sit for the trial of a cause, and how long its sittings shall be protracted, and its determination ^Swiftv. Ratliff, 74Ind. 426; More- = Ellison v. Branstrator, — Ind house V. Heath, 99 Ind. 509. — , 54 N. E. Rep. 433. ^Mergentheim v. State, 107 Ind. "Stipp v. Claman, 123 Ind. 532 567; Jonea v. Lindsay, 98 Ind. 218; Kahlenbeck v. State, 119 Ind. 118 Union, etc., R. Co. v. Moore, 80 Ind. McNutt v. McNutt, 116 Ind. 545 458; Farmers', etc., Assn. v. Rector, Noblesville, etc., Co. v. Teter, 1 Ind — Ind. App. , 53 N. E. Rep. 297. App. 322. ^Elliott's App. Proc, § 618. ' Elliott's App. Proc, § 615. 'Miller V.Preble, 142 Ind. 632; War- ^Shields v. State, 149 Ind. 395; den V. Nolan, 10 Ind. App. 334. See Lewis v. State, 137 Ind. 344; Stephen- Wines V. State Bank, — Ind. App. son v. State, 110 Ind. 358; Walker v. — , 53 N. E. Rep. 389. State, 102 Ind. 502; Achey v. State, 64 Ind. 56; R. S. 1894, § 1862. 26 — App. Practice, 402 APPELLATE PRACTICE. § 282 will not be reviewed on appeal unless it is shown that the com- plaining party's substantial rights were prejudiced by its ac- tion.' Where the evidence on which a party's right to a new trial depends is conflicting, the refusal of a new trial is largely within the discretion of the court,'' and its decision as to the preponderance of such evidence will not be reviewed.' Grant- ing a new trial can seldom be a cause for reversal, because the party who has a right to succeed can usually succeed at the second trial. Such action can never be cause for reversing the judgment unless it is shown that the court was guilty of a clear abuse of its discretion resulting in flagrant injustice to the complaining party;* but where that fact is shown, the ac- tion of the court in granting a new trial will be set aside. ° In all cases where an exercise of discretion by the court is com- plained of, it is incumbent on the complaining party to pre- -sent a record on appeal, aSirmatively showing an abuse of dis- cretion which operated to the prejudice of his substantial rights, and unless such a showing is made the appellate court will decline to interfere. 1 Wartena v. State, 105 Ind. 445. Western U. Tel. Co. v. Kilpatrick, 97 2 Smith V. State, 143 Ind. 685. Ind. 42; Fitzpatrick v. Papa, 89 Ind. ^Sclmurr v. Stults, 119 Ind. 429; 17; "Waddle v. Magee, 81 Ind. 247; Stevens V.Stevens, 127 Ind. 560; De- Daggett v. Flanagan, 78 Ind. 253; Hart V. Etnire, 121 Ind. 242; DeHart Cleveland, etc., E. Co. v. Davis, 10 V. Aper, 107 Ind. 460. Ind. App. 342. * Earner v., Bay less, 134 Ind. 600; ^Hines v. Driver, 89 Ind. 339, 344. CHAPTER 24. OBJECTIONS FIRST PRESENTED ON APPEAL. § 283. What pleadings may be at- § 286. SufRciency of single paragraph tacked for first time on ap- or count, peal. 287. When complaint will be held 284. Manner of attacking com- sufficient. plaint. 288. Adhering to trial court theory. 285. Manner of attacking indict- 289. Attacking jurisdiction of trial ment. court. § 283. What pleadings maybe attacked for first time on ap- peal. — Courts of appeal sit for the purpose of correcting errors committed by the trial courts. It is accordingly required that a matter shall have been' ruled on by the trial court, and an ex- ception saved to its ruling, in order that such matter may be available for the reversal of a judgment on appeal.^ But it is expressly provided by statute that the objection in a civil action that the complaint does not state facts sufficient to con- stitute a cause of action shall not be waived by a failure to ob- ject for that cause in the trial court. ^ By analogy to the pro- cedure in civil cases, the courts have extended this rule to criminal cases, and hold that an indictment or information which does not charge a public offense may be attacked for that cause on appeal, although it was not questioned in the court below. ^ But a pleading can only be assailed in this manner for the insufficiency of the facts alleged.' Mere un- Sections 6, 38, ante. State, 143 Ind. 299; Barnett v. State, '' B. S. 1894, § 346. 141 Ind. 149; section 136, ante. ^Pattee v. State, 109 Ind. 545; * Metropolitan Ins. Co. v. McCor- Hays V. State, 77 Ind. 450; Arbin- mick, 19 Ind. App. 49; South Bend trode V. State, 67 Ind. 267 ; O'Brien Iron Works v. Larger, 11 Ind. App. V. State, 63 Ind. 242; Henderson -v. 367; section 38, ante. State, 60 Ind. 296. See Naanes v. (403) 404 APPELLATE PRACTICE. § 283 certainty' in the allegations of an indictment can not be reached in this manner. Neither can duplicity/ nor any other defect that may be cured by the verdict;' nor can the fact that the complaint in a civil actidn is not as definite and certain as could be desired be reached by an assignment of error ques- tioning its sufficiency for the first time.' Of all the defects for which a complaint will be held insufii- cient on demurrer, the lack of sufficient allegations of fact to make out a cause of action is the only one that can be reached by an independent assignment of error .^ One or more material facts essential to the existence of plaintiff's cause of action must have been entirely omitted.* It is a well-known rule that many defects are cured by the verdict,' and there is even more reason for applying this rule where the complaint is not ques- tioned until after judgment is pronounced than where it is attacked by a motion in arrest of judgment.' The rule which permits the insufficiency of the complaint to be assigned as error on appeal is based on the ground that one who has no cause of action should not be permitted to recover a judgment.' The reason of the rule does not extend to permit answers" or ^Barnett v. State, 141 Ind. 149; " McGregor v. Hobbs, 125 Ind. 487 ; Stewart v. State, 113 Ind. 505; Trout Du Souchet v. Dutcher, 113 Ind. 249; V. State, 111 Ind. 499; Trout v. State, Taylor v. Johnson, 118 Ind. 164; Lav- 107 Ind. 578. erty v. State, 109 Ind. 217 ; Smith v. ^Naanes v. State, 143 Ind. 299. Smith, 106 Ind. 43; Xenia Real Es- ' Chandler v. State, 141 Ind. 106; tate Co. v. Macy, 147 Ind. 568; Cum- Woodworth v. State, 145 Ind. 276; mings v. Girton, 19 Ind. App. 248; State V. Arnold, 144 Ind. 651 ; Ellis Bertha v. Sparks, 19 Ind. App. 431 ; V. State, 141 Ind. 357; Nichols v. Town of Markle v.' Hunt, 12 Ind. App. State, 127 Ind. 406; Graeter v. State, 353. 105 Ind. 271; State v. Noland, 29 Ind. ' Colchen v. Ninde, 120 Ind. 88; 212. Taylor v. Johnson, 113 Ind. 164; Rob- * Xenia Real Estate Co. v. Macy, 147 inson v. Powers, 129 Ind. 480 ; Smith Ind. 568; Robinson V. Powers, 129 Ind. v. Smith, 106 Ind. 43; Dickey v. Kalfs- 480; Board, etc., v. Chipps, 131 Ind. beck, 20 Ind. App. 290; Bertha v. 56; McGregorv. Hubbs, 125 Ind.487; Sparks, 19 Ind. App. 431; Citizens', Burkhart v. Gladish, 123 Ind. 337; etc., R. Co. v. Stoddard, 10 Ind. App. Colchen V. Ninde, 120 Ind. 88; Met- 278. ropolitan Ins. Co. v. McCormick, 19 ' Elliott's App. Proc, §473. Ind. App. 49; South Bend Iron ' Section 136, anee. Works V. Larger, 11 Ind. App. 367. ' " Moreland v. Thorn, 143 Ind. 211; s Elliott's App. Proc, § 473. Dawson v. Eads, 140 Ind. 208; Miller § 284 OBJECTIONS FIRST PRESENTED ON APPEAL. 405 replies' to be questioned in this manner, and a failure to ques- tion them in the trial court will amount to a waiver of all de- fects therein. But cross-complaints^ and counter claims' are in the nature of complaints asking affirmative relief, and such a pleading may be tested by an assignment of error on appeal in the same manner as a complaint, although it was not ob- jected to in the court below. Unless, the record contains the complaint in a civil case,' or the indictment or affidavit and information in a criminal case,' so that the court may know what issues were tried, the judgment will be affirmed without consideration of the alleged errors relied on by appellant, of whatever character they may be. § 284. Manner of attacking complaint. — The proper form of specification in the assignment of errors by which to attack the sufficiency of the complaint is an allegation that it "does not statis facts sufficient to constitute a cause of action. "° Some assignments of error having substantially the same meaning as the above specification have been held sufficient,' though framed in different language. But many assignments of error which questioned the paragraphs of complaint sepa- rately,' or attacked the sufficiency of the complaint as to one of several defendants,' or presented some other question which might have been raised by demurrer," but did not directly V. McDonald, 139 Ind. 465; State v. "Hoke v. Applegate, 92 Ind. 570; Curry, 134 Ind. 133; Loeb v. Tinkler, Higgins v. Kendall, 73 Ind. 522. 124 Ind. 331; City of Evansville v. 'Ferguson v. Hull, 136 Ind. 339 Martin,103 Ind. 206; Bledsoe v.Rader, Hutchings v. Hay, 132 Ind. 369 30 Ind. 354; Austin v. McMains, 14 Board, etc., v. Tichenor, 129 Ind. 562 lad. App. 514; El wood, etc., Co. v. Ashton v. Shepherd, 120 Ind. 69 Harting, 21 Ind. App. 408. Branch v. Faust, 115 Ind. 464 ; Ludlow ' Hon V. State, 89' Ind. 249. v. Ludlow, 109 Ind. 199 ; Stout v. Tur- ' Loeb V. Tinkler, 124 Ind. 331. ner, 102 Ind. 418; Louisville, etc., R. ' McCormick, etc., Co. v. Gray, 114 Co. v. Peck, 99 Ind. 68; Chicago, etc., Ind. 340. R. Co. v. Daily, 18 Ind. App. 308; 'Geisen v. Reder, 151 Ind. 529; Louisville, etc., R. Co. v. Norman, 17 Davis V. Talbot, 149 Ind. 80. Ind. App. 355; Axtell v. Workman, = Riley v. State, 149 Ind. 48; State 17 Ind. App. 152; section 286. post. V. Bins, 9 Ind. App. 280. 'Towell v. Hollweg, 81 Ind. 154. ''Homaday V. Shields, 119 Ind. 201 ; "Robinson v. Powers, 129 Ind. 480; section 38, a7i«e. Hornaday v. Shields, 119 Ind. 201; 406 APPELLATE PRACTICE. § 285 question the sufficiency of the facts alleged to constitute a cause of action, haye been held insuffieient. An assignment that the complaint does not state facts sufficient to entitle the plaintiff "to the relief prayed" is insufficient.' § 285. Manner of attacking indictment. — The proper mode of questioning an indictment for the first time on appeal is by a specification in the assignment of errors that ' ' the facts alleged in the indictment do not constitute a public offense;"^ but any other apt words alleging that the indict- ment does not charge the commission of a public offense will be sufficient.' But an assignment of error which seeks to present any defect in the indictment not 'amounting to a fail- ure to charge the commission of a public offense will be disre- garded,* for it is well settled that mere uncertainty in the alle- gations of an indictment is cured by the verdict.' § 286. Sufiiciency of single paragraph or count. — Where only part of the paragraphs of a complaint are bad, while other paragraphs are good, the good paragraphs form a sufficient basis on which a judgment in the plaintiff's favor may rest. Accordingly, it is held that an assignment of errors question- ing a pleading which was not attacked in the trial court must question its sufficiency as a whole,' and that such an attack Bundy v. Pool, 82 Ind. 502; Hays v. sufficient indictment presents noques- Walker, 90 Ind. 105; Hawkins v. tion. Pace v. State, 152 Ind. 343. MoDougal, 126 Ind. 589; Quill v. Gal- ^ Woodworth v. State, 145 Ind. 276; livan, 108 Ind. 235; Dickey v. Kalfs- State v. Arnold, 144 Ind. 651 ; Ellis v. beck; 20 Ind. App. 290; Bertha v. State, 141 Ind. 357 ; Laycock v. State, Sparks, 19 Ind. App. 431. 136 Ind. 217; Baker v. State, 134 Ind. ^Galvin v. Britton, 151 Ind. 1, 9. 657; Nichols v. State, 127 Ind. 406; 2 Arbintrode v. State, 67 Ind. 267. Benham v. State, 116 Ind. 112 ; Stew- iPattee v. State, 109 Ind. 545; art v. State, 113 Ind. 505; Bright v. Hays V. State, 77 Ind. 450 ; O'Brien v. State, 90 Ind. 343. State, 63 Ind. 242; Henderson v. « Ferguson' v. Hull, 136 Ind. 339 State, 60 Ind. 296. Hutchings v. Hay, 132 Ind. 369 *Naanes v. State, 143 Ind. 299; Bar- Board, etc., v. Tichenor, 129 Ind. 562 nett V. State, 141 Ind. 149. A general Ashton v. Shepherd, 120 Ind. 69 allegation that the court erred in put- Ludlow v. Ludlow, 109 Ind. 199; U. S ting the defendant on trial on an in- Express Co. v. Rawson, 106 Ind. 215 § 287 OBJECTIONS FIRST PRESENTED ON APPEAL. 407 must fail if any paragraph of the complaint states a cause of action.' Even though the verdict rests on a bad paragraph of complaint, the complaint can not be successfully attacked by an assignment of errors, if other paragraphs are good,^ because the court will not consider the evidence in passing on the suffi- ciency of the pleadings. By analogy to the rule in civil cases, an indictment which was not tested in the trial court by de- murrer or motion to quash can not be successfully attacked by an assignment of error, if it contains one good count.' The same reasons apply for holding an indictment or information which contains one good count sufficient when it is attacked in this manner that apply when the indictment is attacked in any other manner after verdict.' v § 287. When complaint will be held sufficient. — Many cases assert that when the sufficiency of a complaint is tested for the first time by an assignment of error in an appellate court, it will be held sufficient if it states facts enough to bar another action for the same cause.* By this is meant that a complaint may be held good when attacked in that manner, unless there is an entire failure to aver some fact essential to plaintiff's cause of action.* The mere fact that the complaint does Louisville, etc., E. Co. v. Norman, 17 * Ledgerwood v. State, 134 Ind. 81; Ind. App. 355; Goben y. Phillips, 12 Bryant v. State, 106 Ind. 549; Dantz Ind. App. 629. v. State, 87 Ind. 398 ; Casily v. State, ' Louisville, etc., R. Co. v. Heck, 32 Ind. 62. 151 Ind. 292, 315; Hutchings v. Hay, ^Xenia, etc., Co. v. Macy, 147 Ind. 132 Ind. 369; Ferguson v. Hull, 136 568; Citizens', etc., E. Co. v. Willoeby, Ind. 339; Branch v. Faust, 115 Ind. 134 Ind. 563; Loeb v. Tinkler, 124 Ind. 464; Louisville, etc., E. Co. v. Ader, 331; Burkhart v. Gladish, 123 Ind. llO Ind. 376; Trammel v. Chipman, 337; Bedford, etc., E. Co. v. Brown, 74 Ind. 474; Chicago, etc., E. Co. v. 142 Ind. 659; Pennsylvania Co. v. Daily, 18 Ind. App. 308; Louisville, Congdon, 134 Ind. 226; Harris v. State, etc., E. Co. v. Norman, 17 Ind. App. 123 Ind. 272; Dickey v. Kalfsbeck, 20 355; Kelly v. John, 13 Ind. App. 579. Ind. App. 290; Bertha v. Sparks, 19 ^TJ. S. Express Co. v. Eawson, 106 Ind. App. 431. Ind. 215. But see Diggs v. "Way, — « Bedford, etc., E. Co. v. Brown, 142 Ind. App. — , 54 N. E. Eep. 412; sec- Ind. 659; Pennsylvania Co. v. Cong- tion 288, post. don, 134 Ind. 226; Hilker v. Kelley, 'Elliott's App. Proc, § 488. See 130 Ind. 356; McGregor v. Hubbs, Dean v. State, 147 Ind. 215. 125 Ind. 487 ; Du Souchet v. Dutcher, 408 APPELLATE PRACTICE. § 287 not show the plaintiff entitled to all the relief prayed is not cause for holding it insufficient, if facts are stated showing him entitled to any relief whatever.' Even where there was no paragraph of complaint stating a cause of action in favor of all the plaintiffs who recovered judgment, but each para- graph stated a cause of action in favor of part of them, and all the paragraphs taken together showed that all the plaintiffs were entitled to recover judgment, the complaint was held suf- ficient to withstand an attack after verdict.^ If facts are averred from which an omitted fact may be supplied by reasonable intendment, the complaint will not be held bad after verdict because of its omission.^ But when an essential fact is entirely omitted, the complaint must be held bad at whatever stage of the proceedings its sufficiency is as- sailed.' As defective averments of facts which may be inferred from other facts alleged might be supplied by evidence at the trial, it will be presumed, after verdict in favor of a plaintiff whose complaint is defective in that particular, that his cause of action is fully proved.' Where the judgment was taken by default, however, this presumption can not be indulged. In such a case nothing can be taken as confessed that was not distinctly averred in the complaint, and it will be held insuffi- 113 Ind. 249; Laverty v. State, 109 478; Murphy v. Murphy, 95 Ind. 430 ; Ind. 217 ; Smith v. Smith, 106 Ind. 43 Dickey v. Kalfsbeck, 20 Ind. App. 290 Bertha v. Sparks, 19 Ind. App. 431 Puett V. Beard, 86 Ind. 104. *Shefler v. Hines, 149 Ind. 413; Jones V. easier, 139 Ind. 382 ; Reed Metropolitan, etc., Co. V. McCormick, v. Browning, 130 Ind. 575; Old v. 19 Ind. App. 49; Dotson v. Dotson, 13 Mohler, 122 Ind. 594; Sage v. State, Ind. App. 436. 120 Ind. 201; Mansur v. Streight, 103 ' Xenia, etc., Co. V. Macy, 147 Ind. Ind. 358; Cleveland, etc., E. Co. v. 568; Loeb v. Tinkler, 124 Ind. 331; Edward, etc., Co., 20 Ind. App. 87; Owen School Tp. v. Hay, 107 Ind. 351 ; Metropolitan, etc., Ins. Co. v. McCor- Bloom'field K. Co. v. Van Slike, 107 mick, 19 Ind. App. 49; Western, etc., Ind. 480. Co. v. McCarty, 18 Jnd. App. 449. 2 Murdock V. Cox, 118 Ind. 266. ^Walter v. Walter, 117 Ind. 247; 'Hynemanv. Roberts, 118 Ind. 137; Burkett v. Holman, 104 Ind. 6; Cox Louisville, etc., R. Co. v. Hixon, 101 v. Albert, 78 Ind. 241; Pittsburgh, Ind. 337; Hedrick v. Osborne & Co., etc., R. Co. v. Noel, 77 Ind. 110; Ades 99 Ind. 143; Jackson v. Weaver, 98 v. Levi, 137 Ind. 506. Ind. 307 ; Eberhart v. Reister, 96 Ind. § 288 OBJECTIONS FIRST PRESENTED ON APPEAL. 409 cient for any defects in the statement of plaintiff's cause of ac- tion for which it would be bad on demurrer/ § 288. Adhering to trial court theory. — The law is 'well set- tled that every pleading must proceed upon a definite theory, that the cause must be tried on the theory outlined by the pleadings, and that such a judgment must be rendered as that theory warrants, and no other. ^ And if a pleading is not good on the theory on which it is drawn,' it can not be held good for any purpose,' even though it may state facts enough to constitute a cause of action on some other theory.' The theory of a complaint must be determined by the court from its general scope and tenor, and not from fragmentary state- ments and conclusions.^ An isolated averment will not be per- mitted to control the general tenor of a pleading, but in case such an averment is in conflict therewith, it may be treated as surplusage.' When two or more inconsistent theories are outlined in the- complaint, one of which is adopted by the parties in the trial court, and the cause is tried and judgment rendered on that theory, it must be adhered to on appeal.' This rule has been 'Old V. Mohler, 122 Ind. 594; Chi- Citizens', etc., R. Co. v. Willoeby, 134 cago, etc., R. Co. v. Daily, 18 Ind. Ind. 563; Miller v. Miller, 17 Ind. App. 308; Cleveland, etc., R. Co. v. App. ^05; Indianapolis, etc., R. Co. Tyler, 9 Ind. App. 689. v. Neubacher, 16 Ind. App. 21. ^Terre Haute, etc., R. Co. v. Mc- ^Carmel, etc., Co. v. Small, 150Ind. Corkle, 140 Ind. 618, 622; Feder v. 427; Diggs v. Way, — Ind. App. — , Field, 117 Ind. 386; Moorman v. 54 N. E. Rep. 412. "Wood, 117 Ind. 144 ; Lane V. Schlem- ^Balue v. Taylor, 136 Ind. 368; mer, 114 Ind. 296; Louisville, etc., R. Comegys v. Emeriok, 134 Ind. 148; Co. V. Wood, 113 Ind. 544, 564; Hrst Miller v. Burket, 132 Ind. 469; Rollet Nat'l Bank v. Root, 107 Ind. 224 ; Car- v. Heiman, 120 Ind. 511 ; Louisville, ver V. Carver, 97 Ind. 497; Bane v. etc., R. Co. v. Jones, 108 Ind. 551. Keefer, 152 Ind. 544. 'Citizens', etc., R. Co. v. Willoeby, ' Copeland v. Summers, 138 Ind. 219, 134 Ind. 563 ; Monnett v. Turpie, 132 226. Ind. 482; Pearson v. Pearson, 125 'Terre Haute, etc., R. Co. v. Mc- Ind. 341; Gregory v. Cleveland, etc., Corkle, 140 Ind. 613; Mtna Powder R. Co., 112 Ind. 385; Henry v. Stev- Oo.v.Hilebrand, 137 Ind. 462; Evans- ens, 108 Ind. 281. ville, etc., R. Co. v. Barnes, 1,37 Ind. ^Carmel, etc., Co. v. Small, 150 Ind. 306; Balue v. Taylor, 136 Ind. 368; 427; Feder v. Field, 117 Ind. 386; 410 APPELLATE PRACTICE. § 289 applied where a complaint was attacked for the first time by an assignment of error on appeal. In such case a party will not be permitted to uphold the sufficiency of his complaint on an entirely different theory from that on which the case was tried and judgrnent rendered in the court below.' Thus, if an action was treated by the parties and the trial court as an, ac- tion in tort for conversion, and a judgment for damages was pronounced, the complaint must be treated on appeal as pro- ceeding on that theory. And if it does not state a cause of ac- tion for conversion the judgment can not be upheld, although the complaint may state facts sufficient to entitle the plaintiff to the foreclosure of a chattel mortgage.^ § 289. Attacking jurisdiction of trial court. — The objection that the trial court had no jurisdiction over the subject-matter of the action is not waived by a failure to raise it by demurrer or answer,* but may be raised at any time. A judgment ren- dered in a case where the court has no jurisdiction of the sub- ject-matter has no validity whatever,* and a void judgment may be attacked by an appeal as well as by an original pro- ceeding.^ An objection for lack of jurisdiction does not require either a formal motion or a bill of exceptions for its exhibition, ° and lack of jurisdiction of the trial court over the subject-matter of the action may he assigned for error on ap- peal, though the jurisdiction of the court was not questioned in any manner below.' The consent of the parties can not Lake Erie, etc., E. Co. v. Acres, 108 v. State, etc., Co., — Ind. — , 54 N. E. Ind.548; Adams v. Davis, 109 Ind. 10, Rep. 442. 21 ; Buchanan V. State, 106 Ind. 251. ^Louisville, etc., R. Co. v. Lock- ^Diggs V. Way, — Ind. App. — , ridge, 93 Ind. 191; Board, etc., v. 54 N. E. Rep. 412. Logansport, etc., Co., 88 Ind. 199; ^Diggs V. Way, — Ind. App. — , Dyer v. Board, etc., 84 Ind. 542; 54 N. E. Rep. 412, citing Adams v. Shoultz v. McPheeters, 79 Ind. 373. Davis, 109 Ind. 10; Lake Erie, etc., «McCoy v. Able, 131 Ind. 417. R. Co. V. Acres, 108 Ind. 548, and 'Riley v. Butler, 36 Ind. 51 ; Lane distinguishing U. S. Express Co. v. v. Taiylor, 40 Ind. 495 ; McGoidrick v. Rawson, 106 Ind. 215. Slevin, 43 Ind. 522; Harris v. Harris, 'R. S. 1894, §346. 61 Ind. 117; Boys v. Simmons, 72 *Webb v.Carr, 78 Ind. 455; Lowery Ind. 593; Lowery v. State, etc., Co., § 289 OBJECTIONS FIBST PKESENTED ON APPEAL. 411 confer jurisdiction on a court to decide matters which the law does not authorize it to determine,' and the failure of a party to object for lack of jurisdiction will not prevent the court from refusing to proceed at any time when its lack of jurisdic- tion is made to appear.^ . In the absence of a proper assignment of errors questioning the jurisdiction of the trial court, an appellate court may re- fuse to consider the question whether it had jurisdiction,' when the fact that it did not have jurisdiction is not apparent on amere inspection of the record, because, when a court of general jurisdiction has assumed jurisdiction over a cause, its action will be presumed to be correct unless the contrary is affirmatively shown/ It has been held that where a party fails to present a question of jurisdiction over the subject-mat- ter until an appeal has finally been made up for adjudication on appeal he will not be allowed to present it/ But other cases have held that an objection that the court has no jurisdiction over the subject-matter may be interposed at any time/ In, one case the supreme court annulled one of its own decisions after a rehearing had been denied, upon being shown that it had no jurisdiction to pronounce the decision,' and there is no good reason why it should refuse to declare a decision of a circuit court void at whatever stage of the appeal that fact is shown . However, under the new rules, any question not presented in the first briefs can not afterward be raised/ Where the su- preme court decides that the court below had no jurisdiction, it will set aside the judgment of that court, but will not ex- press an opinion on the merits of other questions involved/ — Ind. — , 54 N. E. Rep. 442 ; Debs v. " McGoldrick v. Slevin, 43 Ind. 522. Dalton, 7 Ind. App. 84. « Eunner v. Scott, 150 Ind. 441 ; Hol- ' Doctor V. Hartman, 74 Ind. 221, man v. Bobbins, 5 Ind. App. 436. 228; Branson v. Studabaker, 133 Ind. ^ Patterson v. Scottish, etc., Co., 107 147; Lowery v. State, etc., Co., — Ind. 497. Ind. —,54 N. E. Rep. 442; Tucker v. «McCoy v. Able, LSI Ind. 417; Debs Sellers, 130 Ind. 514. v. Dalton, 7 Ind. App. 84. ^ McCoy V. Able, 131 fnd. 417; "Taylor v. Elliott, 52 Ind. 588. Tucker v. Sellers, 130 Ind. 514 ; Debs ' Rule 22 Sup. Ct. V. Dalton, 7 Ind. App. 84; Huber v. ' Robertson v. State, 109 Ind. 79. Beck, 6 Ind. App. 47; Ridge v. City of Crawfordsville, 4 Ind. App. 513. 412 APPELLATE PRACTICE. § 289 The lack of jurisdiction over the subject-matter which may be reached by an assignment of error is an absence of juris- diction over the class of actions to which that particular action belongs.' Thus, where suit was brought to contest a foreign will disposing of personal property that had been admitted to probate in the state where the testator ihad resided, and there was no statute in force authorizing such a contest, the juris- diction of the court was successfully attacked in this manner.^ Also, where a proceeding was brought in the Wayne Circuit Court over which the Miami Circuit Court had exclusive juris'- diction, the judgment of the former court was reversed.' But mere irregularities which might defeat the jurisdiction of the court over the particular case as distinguished from other cases of the same class can not be reached in this manner where the court has jurisdiction of the parties,* for it is well settled that objections of this character may be waived, and that a failure to present such an objection by demurrer or an- swer amounts to such a waiver.^ Where judgment is taken by default against a defendant over whose person the court has not acquired jurisdiction, its lack of jurisdiction may be assigned as error on appeal,* for since the defendant is given no opportunity to present his objections to the trial court in such a case, it is only reasonable that he should be permitted to make them in the court above. ' McCoy V. Able, 131 Ind. 417, cit- * See Perkins v. Hayward, 132 Ind. ing Chicago, etc., R. Co. v. Sutton, 95; McCoy v. Able, 131 Ind. 417. 130 Ind. 405; Jackson v. Smith, 120 SNoerr v. Schmidt, 151 Ind. 679; Ind. 520; State v. Wolever, 127 Ind. Eel River R. Co. v. State, 143 Ind. 306, 315; Alexander v. Gill, 130 Ind. 231. 485 ; Yates v. Lansing, 5 Johns. 282. ^ Roy v. Rowe, 90 Ind. 54 ; Bristor v. ''Harris v. Harris, 61 Ind. 117, 128. Galvin,62 Ind. 352; Kyle v. Kyle, 55 See Evansville, etc., Co. v. Winsdr, Ind. 387; Shoemaker v. Board, etc., 148 Ind. 682. 36 Ind. 175; Cochnower v. Coch- 'Boys V. Simmons, 72 Ind. 593. nower, 27 Ind. 253; section 38,. ante. CHAPTER 25. STARE DECISIS. § 290. The doctrine of stare decisis. § 294. Court will not declare that 291. Authority of judicial decisions. criminal which has been de- 292. When a decision will be over- cided not to be so. ruled. 295. When overruling decision will 293. When a decision has become a be given retrospective effect. rule of property. 296. Overruled decision remains the law of that case. § 290. The doctrine of stare decisis. — It is a general maxim that when a point has been settled by judicial decision, it forms a precedent which is not afterwards to be departed from,^ except for very cogent reasons and upon a clear mani- festation of error. ^ When a rule has been once deliberately adopted and declared by a court of last resort upon solemn ar- gument and mature deliberation, the community have a right to regard it as a just declaration or exposition of the law and to regulate their actions and contracts by it/ The standing and influence of any court, and especially a court of last re- sort, will be greatly weakened in the public estimation by in- decision, instability and inconsistency in judgment,' and a de- cision, unless clearly wrong and subversive of principle, is usually maintained by all the members of the court, though some of the judges may have questioned the wisdom of the decision when it was first rendered.^ Uniformity' of decision by the court is not less essential to ' Bouv. L. Diet. Tit. Stare Decisis. ^Legler v. Paine, 147 Ind. 181, 188; ' 1 Kent's Com., 476. Chambers v. Kyle, 67 Ind. 206 ; Stout ' 1 Kent's Com., 476. v. Board, 107 Ind. 343 ; Pennsylvania ' ' Hines v. Driver, 89 Ind. 339 ; Leg- Co. v. State, 142 Ind. 428 ; Western U. ler V. Paine, 147 Ind. 181, 188. Tel. Co. v. Taggart, 163 U. S. 1. (413) 414 APPELLATE PKACTICE. § 290 the happiness and prosperity of the people of a state than fixed rules of statutory law,' and great evils must result from the inability of persons to act with certainty and confidence in transactions that are subject to review by the courts, if differ- ent rules of decision are followed at different times. When the supreme court has once decided a question of law, that decis- ion, when the question arises again, is binding on all the inferior courts in the state, and also on the supreme court itself, until that case is overruled;^ and upon being presented afterward, is usually decided the same way without discus- sion,' even though the court as then constituted may incline to a different opinion.' Accordingly, a great number of cases- may be found in the reports in which all or a part of the ques- tions sought to be presented are dismissed with the suggestion that they have already been decided by the court in passing on an earlier case. The doctrine of stare decisis, in other words, to stand by the decided cases and not needlessly to disturb what has been settled, is one of the most wholesome rules of proced- ure.' But respect for this doctrine will not prevent the court from overruling a decision, when it is satisfied that greater evil will result from adhering to a rule which has been de- clared than would be produced by departing from it,° and few terms of court pass without one or more decisions being over- ruled.' 1 Elliott's Gen. Prac, § 397. 317 ; Cromie v. Board of Trustees, 71 2 Cohoon V. Fisher, 146 Ind. 588, 585. Ind. 208. ' Legler v. Paine, 147 Ind. 181, 188 ; « Legler v. Paine, 147 Ind. 181, 188. Harmony. Board, etc., — Ind. , 54 ^ City of Evansville v. Senhenn, 151 N. E. Rep. 105; Carpenter v. Bussell, Ind. 42; Board, etc., v. Allman, 142 129 Ind. 571 ; Spitznogle v. Ward, 64 Ind. 573, 591, 595. Ind. 30; Stanford V. Stanford, 42 Ind. 'Board, etc., v. Allman, 142 Ind. 485; Tindery. Duck Pond, etc., Assn., 573.' SeeLeflery. State, — Ind. — ,54 38 Ind. 555; Carver y. Louthain, 38 N. E. Rep. 439; Furnace v. State, — Ind. 530, 539. Ind. — , 54 N. E. Rep. 441 ; Cincinnati, ♦Legler v. Paine, 147 Ind. 181, 188; etc., Co. v. Chenoweth, — Ind. App. Pennsylvania Co. v. State, 142 Ind. — ,54N. E. Rep. 403; McFarlan, etc., 428, 434; Stout y. Board, etc., 107 Co.v.Potter, — Ind. — ,53N.E.Rep Ind. 343; Chambers v. Kyle, 67 Ind. 465; Pittsburg, etc., Co. y. Moore, — 206; Nelson v. Fleming, 56 Ind. 310, Ind. — -, 53 N. E. Rep. 290; Hutch § 291 STARE DECISIS. 415 § 291. Authority of judicial decisions. — A solemn decision by a court of last resort upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject;' and binds the court which pronounced it, as well as all inferior courts of the state, ^ until it is overruled, unless it can be conclusively shown that the law was misun- derstood or misapplied in that particular case.' A decision of the supreme court is usually followed without question by all the other courts of the state, unless it is apparent that some statute or some settled principle of law was overlooked by the supreme court in making it.* But a judicial decision, while entitled to the highest respect, is not the law in the sense that a statute is the law.' It is only evidence of what the law is," and that evidence is stronger or weaker according to the num- ber and uniformity of adjudications, the unanimity or dissen- sion of the judges, the solidity of the reasons on which the decisions are founded, and the perspicuity and precision with which those reasons are expressed.' Even a series of decisions is not always conclusive evidence of what is the law,' and where a court of last resort becomes convinced that it has erred in a decision or a series of decisions, it will overrule them,' unless it is apparent that the evils of departing from a settled rule of decision will be greater than would result from adher- ence to a wrong principle.'" ins V. State, 151 Ind. 667; City of " Paul v. Davis, 100 Ind. 422, citing Evansville v. Senhenn, 151 Ind. 42; Yates v. Lansing, 9 Johns. (N. Y.) Center School Tp. v. State, 150 Ind. 396; Henry v. Bank of Salinaj 5 Hill 168; Evansville, etc., Co. v. Winsor, (N.Y.) 523,535; Center S. Tp. v. State, 148 Ind. 682; Crum v. State, 148 Ind. 150 Ind. 168, 178 ; Board, etc., v. All- 401. man, 142 Ind. 573, 592. 1 1 Kent 475. '' Hibbits v. Jack, 97 Ind. 570, 578, 2 Cohoon V. Fisher, 146 Ind. 583, 585. citing Hart v. Burnett, 15 Cal. 530. ' 1 Kent 475. « 1 Kent 477. * See Layman v. Hughes, 152 Ind. 'Board v. Allman, 142 Ind. 573, 592; 484. Cram v. State, 148 Ind. 401, 412 ; Lef- ^Paul V. Davis, 100 Ind. 422; Hib- ierv. State, — Ind. — , 54 N. E. Rep. bits V. Jack, 97 Ind. 570, 578; Board, 439. etc., V. Allman, 142 Ind. 573, 592; " Denney v. State,144 Ind. 503, 539; Center S. Tp. v. State, 150 Ind. 168, Board, etc., v. Allman, 142 Ind. 573, 173. 594; Paul v. Davis, 100 Ind. 422; 416 APPELLATE PRACTICE. § 292 It is only the decisions of the courts of our own state that can ever have the binding force of authority in this state/ though the decisions of other courts are entitled to great respect in so far as they are based on sound reason and correct princi- ple, and such decisions are often the most effective weapons with which to assail an erroneous decision by our own su- preme court.^ The appellate court has authority to overrule its own decisions on becoming convinced that they do not cor- rectly declare the law/ but it must be governed in all things by the law as declared by the supreme court of this state, and is forbidden, directly or by implication, to reverse or modify any decision of that court.' But if the judges of the appellate court should be dissatisfied with a rule of law declared by the supreme court they may transfer a cause to it with their opin- ion of what the law should be held to be,° and the supreme court may reaflBrm its former decision, or overrule it as it thinks best.° § 292. When a decision will be overruled, — When a decis- ion of the supreme court is clearly opposed to the highest law of the land as declared in the constitution of the state, that court will seldom hesitate to overrule it on becoming convinced of that fact.' The judges are sworn to support the constitu- tion, and their first duty is to be guided by it, rather than by Hinea v. Driver, 89 Ind. 339; Eock- ' Cincinnati, etc., Co. v. Chenoweth, hill V. Nelson, 24 Ind. 422; Hart v. —Ind. App. — , 54 N. E. Eep. 403. Burnett, 15 Cal. 530, 607; 1 Kent's ■'E. S. 1894, § 1362; Gates v. New- Corn., 477. man, 18 Ind. App. 392; Newman v. ' Nathan v. Lee, 152 Ind. 232, citing Gates, 150 Ind. 59. Warren ,v. First Nat'l Bank, 149 111. "E. S. 1894, § 1362; McFarlan Car- 9, and cases there cited; Boehme v. riage Co. v. Potter, 21 Ind. App. 692. Eall, 51 N. J. Eq. 541; Borton v. « E. S. 1894, § 1362 ; McFarlan Car- Brines-Cbase Co., 175 Pa. St. 209; 2 riage Co. v. Potter, — Ind. — , 53 N. MoraWetz Corp., § 967. See Cohoon E. Eep. 465. V. Fisher, 146 Ind. 583, 586; Denney 'Denney v. State, 144 Ind. 503, 539; V. State, 144 Ind. 503, 537. Walsh v. State, 142 Ind. 357, 365 ; '' Board, etc., v. Allman, 142 Ind. Eobinson v. Schenok, 102 Ind. 307, 573, 575 ; Lefler v. State, — Ind — , 320, citing Willis v. Owen, 43 Tex. 41 ; 54 N. E. Eep. 439. Kneeland v. City of Milwaukee, 15 Wis. 454, 692. § 292 STARE DECISIS. 417 any other authority.' Moreover, questions involving the con- struction and interpretation of the organic law, the structure of the government, and the limitations upon the legislative and executive power seldom have any direct bearing on prop- erty rights or private contracts,^ and the adoption of a new rule of decision is not, therefore, accompanied by evil results in the way of unsettling titles and interfering with business transactions. Where the court has given a construction to a statute by which it is made to conflict with the constitution, and the statute is susceptible of another construction which makes it constitutional, the first decision will be overruled and a construction given by which it may be upheld.' But the construction given to a statute by the courts is a part of the statute, and where such a construction has been acquiesced in by the people for a series of years without any attempt be- ing made to change the law, a new construction will seldpm be afterw;ard adopted.' In any case where a decision has laid down erroneous prin- ciples of law, adherence to which would produce worse evils than would result from a departure from them,' the court will not hesitate to overrule such decision, on being convinced of its error. The law does not require that causes should be tried on wrong principles,^ and the doctrine of stare decisis will not be permitted to control, when to yield to it is to per- petuate error and sacrifice principle.' Especially is this true where the decision overruled is itself in conflict with the rea- soning in other cases, so that the law is in an unsettled state,' 'Kneeland v. City of Milwaukee, v. Driver, 89 Ind. 339; City of Evans- 15 Wis. 454, 692. ville v. Senhenn, 151 Ind. 42, 47 'Willis V. Owen, 43 Tex. 41, cited Robinson v. Schenck, 102 Ind. 307 in Robinson v. Schenck, 102 Ind. 307, 320. 320. SeeDenneyv.State, 144Ind. 503, « Board, etc., v. Allman, 142 Ind 539. 573, 593; Paul v. Davis, 100 Ind. 422, 'Taggartv. State, 142 Ind. 668, 673. 427; Hart v. Burnett, 15 Cal. 530, See Center S. Tp. v. State, 150 Ind. 168. vide op. 607. *Loeb v. Matliis, 37 Ind. 306; ' Paul v. Davis, 100 Ind. 422, 428 Grubbs v. State, 24 Ind. 295. See Rob- Board v. Allman, 142 Ind. 573, 594. inson v. Schenck, 102 Ind. 307, 321. sp^ui y. Davis, 100 Ind. 422, 426 'Paul v. Davis, 100 Ind. 422 ; Hines Board v. Allman, 142 Ind. 573. 27 — App. Practice. 418 APPELLATE PRACTICE. § 293 or where adherence to the earlier decisions would cause palpa- ble injustice.' In such a case, it is the duty of the court to seek out and follow the true rule, notwithstanding its former decisioins to the contrary.^ § 293. When a decision has become a rule of property. — The question whether a point that has once been decided shall be re-examined, or the doctrine of stare decisis applied, is often a question of expediency, depending on a consideration of the importance of certainty in the rule, and the extent of property to be affected by it.' If a principle of law, doubtful in its char- acter or uncertain in the subject-matter of its application, has been settled by a series ot decisions,' or has been acquiesced in for a number of years ° until it has become an established rule of property or the basis of contracts, it should not be over- thrown except from the n most urgent considerations of public policy.* In matters affecting title to real property and mercantile transactions, it is often mOre important that a fixed and defi- nite rule shall be adhered to than it is what that rule shall be.' And it is very seldom that a departure from decisions which establish a rule of property can be justified.' But a decision which is opposed to the law, as declared by earlier decisions which it does not profess to overrule, does not at once become a rule of property, and the court may properly return to the ' City of Evansville V. Senhenn, 151 «Pond v. Irwin, 113 Ind. 243; Ind. 42, 47; Paul v. Davis, 100 Ind. Board, etc., v. Allman, 142 Ind. 573, 422, 426 ; Hines v. Driver, 89 Ind. citing Hines v. Driver, 89 Ind. 339 ; 339. Grubbs v. State, 24 Ind. 295 ; Harrow ^ City of Evansville V. Senhenn, 151 v. Myers, 29 Ind. 469; Rockhill v. Ind. 42, 48. Nelson, 24 Ind. 422. M Kent 477. 'Eockhill v. Nelson, 24 Ind. 422, * Harrow v. Myers, 29 Ind. 469 ; 424 ; Harrow v. Myers, 29 Ind. 469 ; Lindsay v. Lindsay, 47 Ind. 283, 287. Carver v. Louthain, 38 Ind. 530; Car- '^ Schorl v. Stephens, 62 Ind.* 441, penter v..Eussell, 129 Ind. 571; Cay- 449; Pond v. Irwin, 113 Ind. 243, 247; wood v. Medsker, 84 Ind. 520, 527; Frank v. Ev9,nsville, etc., R. Co. Ill Lindsay v. Lindsay, 47 Ind. 283, 287; Ind. 132; Cromie v. Board, etc., 71 Haskett v. Maxey, 134 Ind. 182, 188. Ind. 208 ; City of Logansport v. Shirk, ' McCabe, C. J., in City of Evans- 88 Ind. 563. ville v. Senhenn, 151 Ind. 42, 48. § 294 STARE DECISIS. 419 rule laid down by the earlier decisions when the question is again presented.' Even in case a decision has become a rule of property, if the evil resulting from the principle is greater than the mischief to the community could possibly be from a dis- regard of former adjudications, they should be overruled and a new rule established. ° Where the established rule re- lates to a right of action for damages in tort," or to a question of practice in the courts,* or to some question of government,' or other matter the decision of which will not directly affect property rights or private contracts, the courts will more read- ily depart from it and overrule the decisions by which it is de- clared upon being convinced that it is erroneous.' And if fol- lowing an erroneous decision will produce greater confusion. than overruling it, the court will not hesitate to declare the cor- rect rule.' § 294. Court will not declare that criminal which has been decided not to be so. — The constitution forbids the passage of ex post facto laws," by which an act shall be declared unlawful which was lawful when it was done. It would be a violation of this principle for the courts to construe a statute as not pro- viding a penalty for doing an act, and after the act had been done to overrule that decision and hold it punishable under the statute. In such a case, it is better that what is settled by judicial decision should not be disturbed by judicial action even though it be wrong,' and that the legislature should be left to make provision for punishing the forbidden act by further legislation. But in the decision of questions which ' Hibbits V. Jack, 97 Ind. 570, 579. ^Denney v. State, 144 Ind. 503, 539; ^Boon V. Bowers, 30 Miss. 246, cited section 291, ante. in Board, etc., v. Allman, 142 Ind. « Section 292, anie. 573, 592 ; Paul v. Davis, 100 Ind. 422. ' Eobinson v. Schenck, 102 Ind. 307, ^ Board, etc., v. Allman, 142 Ind. 320. 573, 592; City of Evansville v. Sen- ' Const., art. 1, §24; R. S. 1894, § 69. henn, 151 Ind. 42, 48. 'Grubbs v. State, 24 Ind. 295. See * Hines v. Driver, 89 Ind. 339 ; Lefler Lefler v. State, — Ind. — , 54 N. E. V. State, — Ind. — , 54 N. E. Rep. Rep. 439. 439; Furnace v. State, — Ind. — , 54 N. E. Rep. 491. 420 APPELLATE PKACTICE. § 295 relate to the sufficiency of pleadings/ or to other questions of practice ^ in the trial of an offense, this reason does not apply, and a former decision will be overruled if the court is con- vinced that it is erroneous. § 295. When overruling decision will be given retrospective effect. — In overruling a former decision by a later one the court in effect declares that it was simply mistaken in regard to the law in its first decision, and that the rule declared therein never was the law,' but it has always been as expounded in the overruling decision.' It follows that the reversal of a judicial decision relates back to the time the statute under considera- tion took effect, or to the earliest period of time that the prin- ciple declared could have any application. The rights of par- ties must, therefore, be determined by the principles so laid down, and are not affected by the fact that the law was given a different construction when those rights accrued.' This gen- eral rule is subject to the exception that where a contract has been entered into the rights of the parties are to be deter- mined by the law as it was expounded by the different depart- ments of government and administered by the courts at the time the contract was made, and its validity and obligation can not be impaired by any subsequent act of the legislature or decision of the court altering its construction.' The constitutions of the United States' and of the state of Indiana' forbid the passage of any law impairing the obliga- ^Leflerv. State, — Ind. — , 54 N. 152 Ind. 142; Byrum v. Henderson, E. Rep. 439; Furnace v. State, — 151 Ind. 102, 107. Ind. — , 54 N. E. Eep. 491. = Center School Tp. v. State, 150 Ind. '■^ Hutching v. State, 151 Ind. 667, 168; Town of Hardinsburg v. Cra- 678; Crum v. State, 148 Ind. 401, 411. vens, 148 Ind. 1. See City of Evans- ' Haskett v. Maxey, 134 Ind. 182, ville v. Senhenfi, 151 Ind. 42. 190; Center School Tp. v. State, 150 "Haskett v. Maxey, 134 Ind. 182; Ind. 168, 173; Town of Hardinsburg Stephenson v. Boody, 139 Ind. 60, 66; V. Cravens, 148 Ind. 1, 9. Byrum v. Henderson, 151 Ind. 102, * Stephenson v. Boody, 139 Ind. 60, 107. 66; Town of Hardinsburg v. Cravens, 'United States Const., art. 1, § 10; 148 Ind. 1, 9; Center School Tp. v. E. S. 1894, § 10. State, 150 Ind. 168, 173; Helt v. Helt, » Const., art. 1, § 24; R. £ §69. . § 296 STARE DECISIS. 421 tion of contracts, and this provision is construed to protect contracts from the operation of overruling decisions, as well as from the effect of Subsequent acts of the legislature.' This question most frequently arises where a statute is construed by the court, and the construction so given to it is afterward departed from. In such a case, the prevailing rule is to give the same effect to a change of judicial construction, so far as it might operate to disturb vested rights, that would be given to a legislative amendment; that is, to apply the change in the interpretation of the law so as to operate prospectively and not retrospectively.^ But the only rights which the law protects in this way are rights of property, or those founded on con- tracts, express or implied. The mere expectation of a future benefit to be derived from the continuance of the existing law is not entitled to such protection,' nor can a person who merely took possession of property in reliance on a supposed right de- clared by a decision of the court hold the property after that decision is overruled.' § 296. Overruled decision remains the law of that case. — While the overruling of a decision of the supreme court fre- quently deprives a person of a right of action which he has be- lieved he possessed,* or makes him liable in damages where he had hoped to escape liability,* and sometimes deprives a party of what he has come to consider his property rights,' it never 'Haskett v. Maxey, 134 Ind. 182; School City, 21 Ind. App. 707; Town Stephenson v. Boody, 139 Ind. 60; of Hardinsburg v. Cravens, 148 Ind. Town of Hardinsburg V. Cravens, 148 1, 9; Byrum v. Henderson, 151 Ind. Ind. 1, 9; Byrum v. Henderson, 151 102, 107. Ind. 102, 107. * Center S. Tp. v. State, 150 Ind. ' ^ Jordan, J., in Center S. Tp. v. State, 168 ; Town of Hardinsburg v. Cravens, 150 Ind. 168, 174, citing Douglass v. 148 Ind. 1 ; Paul v. Davis, 100 Ind. County of Pike, 101 U. S. 677. See 422. Haskett v. Maxey, 134 Ind. 182, 191 ; * Board v. Allman, 142 Ind. 573. Stephenson v. Boody, 139 Ind. 60; " City of Evansville v. Senhenn, 151 Town of Hardinsburg v. Cravens, 148 Ind. 42 ; section 292, ante. Ind. 1. 7 Paul V. Davis, 100 Ind. 422; Davis 'Center S. Tp. v. State, 150 Ind. v. Krug, 95 Ind. 1; Hibbits v. Jack, 168, 174; Center S. Tp. v. State, 20 -97 Ind. 570, 579. Ind. App. 706; Addison S. Tp. v. 422 APPELLATE PRACTICE. § 296 affects the binding force of the first decision as between the par- ties to that action.' That decision remains the law of the case in which it was pronounced through all its subsequent stages until final determination,^ notwithstanding it may have been overruled by another case; and the final judgment pronounced in a case is binding on the parties, and all persons claiming under them, as to all questions that were presented for adjudi- cation,' whatever the law may afterward be declared to be by the courts in deciding other cases. ' Section 250, ante. citing Hardigree v. Mitchum, 51 Ala. ^ Board, etc., v.Bonebrake, 146 Ind. 151; "Wells Res Adjudicata and Stare 311, 313, and cases cited. Decisis, § 628. ' Hibbits V. Jack, 97 Ind. 570, 579, INDEX. \_Beferences are to Sections.'] A ABANDONMENT OF APPEAL, may be pleaded to uphold judgment, 3. by failure to file bond, 169. liability of sureties on appeal bond, 174. ABATEMENT, caused by death of party when, 145, 166, 229. riot caused by death of party after appeal is taken, 145. ABSOLUTE VERITY, statements in bill of exceptions import, 34. record imports and can not be contradicted, 208. ABSTRACT OF RECORD. printed abstract may be made, 57, 286. consideration of appeal on printed abstract, 236. ABUSE OF DISCRETION, when cause for reversing judgment, 274. granting or refusing continuance may amount to, 275. by permitting or refusing leave to amend pleading, 276. by staying second action for same cause, 277. by refusing change of venue, 278. ' by refusal to compel election between counts of indictment, 279. in controlling argument of counsel, 280. in exercising control over examination of witnesses, 281. in general control of case, 282. ACCIDENT, cause for a new trial, 42. motion for new trial on account of supported by affidavit, 50, 52. time for appealing extended when appeal is prevented by, 101, 107, 160. effect of accidental failure to serve notice on co-party, 156. ACQUITTAL, state may appeal from judgment of, 99. (423) 424 INDEX. [_Beferences are to Sections."] ACTUAL CONTROVERSY, necessary to maintenance of appeal, 142, 228. ADDITIONAL BRIEF, presentation of additional authorities, 21, 191. not received by court, 191. ADMINISTRATORS, may appeal without filing appeal bond, 9, 170. jurisdiction of appeals on exceptions to reports, 70. appeal from appointment or refusal to appoint, 71. orders removing or refusing to remove, 72. joined as party to appeal when, 145, 166. substitution of, 145, 166. ADVANCEMENT, causes will be advanced when, 196. essentials of motion to advance, 197. AFFIDAVITS, transcript can not be corrected by, 4, 22, 117. application for certiorari supported by, 22, 210, 212. making part of the record by order of court, 36. character of newly-discovered evidence shown by, 45. motion for new trial should be supported when, 50, 52. in agreed case, 94. for publication of notice, 162. motion to advance appeal supported by, 197. motion to dismiss appeal supported by, 201, 231, not permitted to contradict the record, 208. that benefit of judgment was accepted shown by, 227. motion to reinstate appeal supported by, 233. AGREED CASE, exception to decisiori necessary, 24, 94. differs from agreed statement of facts, 94. jurisdiction, afiidavit essential to, 94. time and manner of appealing in, 94. what constitutes the record on appeal, 94. AGREEMENT, submission of appeals by, 17, 178. parties may extend time for filing bill of exceptions, 33. extension of time to file motion for new trial, 53. time for appealing can not be extended by, 101. record can not be amended by agreement of parties, 117, 208. parties may submit an appeal by, 178. appeals not advanced by, 196. to submit, ia an appearance by appellee, 19, 178. INDEX. 425 [^References are to Sections.'] AMENDMENT, when should be made, 5. when trial court will amend bill of exceptions, 37. of pleading takes original out of the record, 116. of clerk's certificate to transcript, 117. assignment of errors amended, when and how, 132. of record, 210, 219. of defective appeal bond, 223. when deemed to have been made below, 254. See Cbktioeaei. ^ AMENDMENT OP PLEADING, abuse of discretion relating to, 276. AMENDMENT TO CONSTITUTION, ' .increase of judges of supreme court, 57, 61, AMICUS CUBIM, can not raise constitutional questions by filing brief, 75. rehearing not granted to, 240. AMOUNT IN CONTROVERSY, jurisdiction determined by, 62, 65, 66. interest and costs not considered in determining, 65, 66. rules for determining, 66. ANSWER, f can not be first questioned by assignment of error, 38. matters set up by answer to assignment of errors, 124, 201. APPEAL, purpose for which may be taken, 1. what is an appeal, 1. differs from a trial, 2. is tried solely by the record, 2. assigning errors an essential step in taking, 13. will lie only when given by statute, 58. will not lie to supreme or appellate court from petty tribunals, 58. jurisdiction of appellate court in suits to fpr'eclose statutory Hens, 63. in prosecutions for misdemeanors lies to appellate court, 64. cases originating before justice of the peace, 65. in judgments for money only, 66. in actions of replevin, 67. of actions between landlord and tenant, 68. of claims against decedent's estate, 69. of exceptions to reports of fiduciaries, 70. appointment of administrators, executors or guardians, 71. from orders removing or refusing to remove fiduciaries, 72. 426 INDEX. [Beferences are to Sections,'] APFEAh— Continued. jurisdictipn of appellate court in cases of bastardy, 73. ' of constitutional questions, 75. \ supreme court has jurisdiction unless otherwise specially provided, 78. from order to surrender possession of real estate, 85. from order in injunction proceedings, 86. where less than fifty dollars is involved, 89. from decision affecting settlement of estate, 97. transferred from one court to the other, 79. presentation by reserved question of law in criminal case, 95. presentation by reserved question in civil case, 96. general rules as to criminal cases, 98. effect of decision of an appeal taken by the state, 99. how taken by the state in criminal case, 99. by defendant in criminal case, 100. when may be taken within one year, 101. from what courts appeal will lie, 81. right of appeal exists only as given by statute, 81, 88. can not be taken until judgment is entered, 82. who may take, 83, 142. when are termed vacation appeals, 90. time and manner of taking in receivership case, 93. and manner of taking in agreed cases, 94. for perfecting term appeal, 102. for appealing is calculated, from what, 101. extension of, for taking in decedent's estate, 97, 104. for taking from appointment of receiver, 103. for taking in decedent's estate, 104. for taking from interlocutory order, 105. computing for taking, 106. perfected within the time allowed, 107. for taking in criminal cases, 108. allowed person under legal disabilities, 109. waiver of right to maintain, 110. of right by action to review judgment, 111. of right by accepting benefit of judgment, 112. effecting compromise waives right of, 113. real party in interest only can take, 142. part of several judgment defendants may take, 143. party to judgment only can take, 144. can not be maintained in name of deceased party, 145, 229. effect of co-party's failure to take, 148. notice an essential step in taking, 152. service of below, 154. dismissal for failure to serve, 155. to co-parties essential to jurisdiction, 156. d written necessary, 158. ' INDEX. 427 [_Beferences are to Sections.'] APPEAL— Oo?i«m(efl!. execution not stayed until bond is filed, 171. effect on judgment of taking appeal, 177. plea or motion of appellee, 201. dismissal for lack of proper judgment, 220. second appeal taken after, 221, 222, 223, 224, 225, 226. for appellant's failure to file brief, 222. for lack of security for costs, 223. for failure to file transcript in time, 224. for failure to make marginal notes, 225. for lack of names in assignment of errors, 226. for acceptance of benefit of judgment, 227. for lack of real interest of appellant, 228. stricken from the docket, when, 229. reinstatement after, 233. withdrawal of transcript to take second appeal, 234. consideration by the judges, 237. when judgment becomes effective, 239. authority to direct judgment below on deciding appeal, 249. acts necessary to perfect compelled by mandamus, 264. costs and taxation of, 269. apportionment of costs, 270. liability for costs of defendant in criminal case, 271. what pleadings may be first attacked on appeal, 283. jurisdiction of trial court attacked on appeal, 289. See Term Appeal; "Vacation Appeal. APPEAL BOND, in what appeals is essential, 9, 169. no stay of execution until filed, 9, 171. when must be filed, 9, 173. necessary to obtain supersedeas, 16, 171. in appeal from appointment of receiver, 83. essential in an appeal from interlocutory order, 92. necessity for in appeal from appointment of receiver, 93. administrator or executor must give, when, 97. necessity for in appeal from decision affecting settlement of estate, 97. not essential in appeal after term, 9, 169. failure to file is abandonment of appeal, when, 169. in appeals in criminal cases, 169. necessity for and manner of giving in term appeal, 91 , 169. executors, administrators and guardians need not file, when, 169, 170. when filed in criminal case and effect of, 169. state is excused from giving, 170. time allowed for filing, 173. conditions of bond in different appeals, 174. defects cured by the statute, 174, 176. what is covered by in different appeals, 174. 428 INDEX. [^Beferences are to Sections.'] APPEAL BO^D— Continued. manner of filing and approving, 175. form used in different appeals, 176. how must be approved, 176. effect on judgment of filing bond, 177. dismissal for failure to file, 223. liability of sureties for costs, 222. right to require additional sureties, 272. APPEARANCE, waives notice of appeal, 15, 163, 164. acts that should precede appellee's appearance, 18, 199, 201. appellee not entitled to notice of steps until appearance, 19. can not be withdrawn except for cause, 19. manner of entering appearance of appellee, 19. notice to co-parties unnecessary, when, 147. waives lack of appeal bond, 169. agreement to submit is, 178. motion to dismiss should precede, 199. APPELLATE COURT, title of assignment of errors controls court to which appeal is sent, 14. territorial extent of jurisdiction, 56. organization and customs, 57. from what courts appeals will lie, 58, 81. jurisdiction, forbidden to exercise, in what cases, 62. none of constitutional questions, 62, 75. of foreclosure suits, 63. in misdemeanors, 64. in cases originating before justice, 65. amount in controversy determined, how, 66. where money is in controversy, 66. in replevin, 67. value of personal property immaterial, 67. between landlord and tenant, 68. in decedents' estates, 69, 70, 71, 72. in bastardy, 73. in equity, 76. appeal may be transferred to supreme court, 79. governed by law as declared by supreme court, 79, 80, 291. governed by rules and practice of supreme court, 79. . transfer of cases to, 79. sovereign where it has jurisdiction, 80. publication and authority of opinions, 253. power to issue injunctions and restraining orders, 260. writ of mandamus issued by, 262. transfer compelled by mandamus, 264. See Supreme Court. INDEX. 429 [iJe/erences are to Sections.'] APPELLANT, See Pabti^s. APPELLEE, can not waive notice to co-parties, 164 . who must be made, 149. See Parties. APPELLEE'S DEFENSE, waiver of, 163, 204. brief within ninety days, 21, 190. aided by all reasonable presumptions, 198. motion to dismiss appeal, 199. challenging assignment of errors, 200. presentation of collateral matters, 201. See Ckoss-Eerors. APPROVAL OF BOND, appeal bond must be approved, how, 175, 176. necessity and manner of making, 175. ARGUMENT, misconduct of counsel in argument cured by instruction, 49. presumption that court cured error by its instructions, 49. statements of counsel as cause for new trial, 49. brief must contain argument, 180. manner of presenting in brief, 183. oral argument heard by court, when, 193. discretionary power of court to control, 280. See Oral Argument. ARRAIGNMENT, failure to arraign defendant is cause for new trial, 41. ARREST OF JUDGMENT, state may appeal from order for, 99. filing cuts off motion for new trial, 116. ASSESSMENT OF RECOVERY, error is cause for new trial, 48. assignee may prosecute appeal from judgment against his assignor, 142. ASSIGNMENT OF ERRORS, is appellant's pleading on appeal, 6, 13, 124. must relate only to matters of law, 6, 128. necessary in criminal case, 13, 98, 141. full names of all parties must appear in, 13, 120, 126, 226. must be written on transcript, 13, 125, 129, 130. signed by appellant or his attorney, 13, 131. 430 INDEX. [iJe/erences are to Sections.^ ASSIGNMENT OP "EUnORS— Continued. filing must precede issuing of supersedeas, 16, 172. cross-complaint or counter claim questioned by, 38, 136, 283. complaint or indictment first attacked by, 38, 283. jurisdiction of trial court attacked by, 38, 289. causes for new trial not assignable, 39, 129, 133. what may be assigned as error, 39, 120, 133. filed within time allowed for appealing, 107, 124. time for filing in criminal cases, 108. appeal will be dismissed for lack of, 124, 226. demurrer not necessary to question sufiiciency, 124, 128. jurisdiction of appellate tribunal depends on, 124. time for filing extended in case of fraud or accident, 124. errors must be specifically designated, 127, 135. specifications must each be complete, 127. form of, 129. precipe for issue of notice, 130. amended, when and how, 132. amendment, leave applied for, how, 132. must relate to final ruling, 134. specifications in single assignment, 135. objections first presented by, 136. can not contradict record, 137. must relate to matters shown by record, 137. joint assignment must be good as to all joining in it, 188. by husband and wife an exception to rule as to joint assignment, 138. joint assignment, what constitutes, 138. by whom may be made, 142. challenged for defects, how, 200. cross-errors should be assigned, when, 206. , arrangement of names in title, 226. dismissal of appeal unless assignment contains names of parties, 226. only what injured party can be assigned as error, 254, 258. form for attacking indictment on appeal, 285. can not attack single paragraph or count for first time, 286. complaint held suflBcient on first attack, when, 287. form for attacking complaint on appeal, 284. See Cross-Erboes, 139, 140. ATTORNEY, when notice of appeal not served on appellee's attorney, 15. notice of appeal served on, when, 154. can not be served with notice of appeal, when, 155. notice to co-party served on, 156. AUTHORITY, force of decision as authority, 290, 291. INDEX. 431 [^Beferences^are to Sections.'] AUTHORITIES, brief should cite and discuss autiiorities, 180, 185. manner of finding, 186. use and abuse of citations, 187. additional authorities may be cited, 191. B BAIL, appeal from refusal to admit prisoner to bail, 87. BASTARDY, jurisdiction of appeals in prosecutions for, 73. BENEFIT OF JUDGMENT, acceptance by appellant is cause for dismissing appeal, 227. BILL OF EXCEPTIONS, how grant of time for preparing must be shown, 24. presumption when filed before expiration of term, 24. time may be granted for preparation, 24. matters which record entries should show not shown by, 25. what matters may be shown by, 25. rulings made in the formation of issues, 26. necessity for in appeal of criminal case, 27, 100. form of, 29. certificate of judge, 30. how date of presentation for signature shown, 30, 31. date of presentation for judge's signature controls, 31. signed by judge before it is filed, 31. when presentation for judge's signature excused, 31. filing after term, what record should show, 32, 33. must be filed after it is signed, 82. signed by special judge when, 32. signing and settling is a judicial act, 32. unlawful to sign on Sunday, 32. when and where filed, 32. who signs if judge dies or goes out of office, 32. allowance of time for preparation, 33. extending time for preparing and filing, 83. when time for preparation must be granted in civil case, 38. recitals import absolute verity, 34. statements can not be contradicted on appeal, 34. time for filing not extended after close of term, 33. what recitals must be disregarded, 84. insertion of written instruments and documentary evidence, 35. how evidence is made part of the record by, 35. - need not be copied into record, when, 35. reserving question of law depending on the evidence, 35. 432 INDEX. [References are to Sections.l BILL OF EXCEPTIONS— Contraieed. amendment by trial court, 37. reference to in motion for new trial, 44. necessary to make argument of counsel part of record, 49. causes for new trial must be shown by, 51. granting leave to file after term, 54. when leave to file must be obtained, 54. when necessary in appeal from temporary injunction, 86. preparation to exhibit reseryed question of law, 95, 96. preparation for appeal by reserved question, 96. making collateral matters part of the record, 116. signing compelled by mandamus, 264. BOND, See Appeal Bond. BRIEF, filing a brief is an appearance by appellee, 19. additional authorities may be cited, 21, 191. dismissal of appeal for appellant's failure to file, 21, 179, 222. timQ allowed for filing, 21. filing on motion for certiorari, 22. petition for rehearing accompanied by, 23, 244. constitutional questions raised by argument, 75. application for supersedeas supported by, 172. should accompany application for supersedeas, 172. appellant must file within sixty days, 179. extension of time for filing, 179. essentials of a brief, 180. must be printed or type-written, 180. showing rulings to be wrong, 180, 183. correcting erroneous statements of opposite party, 181, 190. facts in the case should he stated, 181. references to the record where rulings are found, 182. substance of pleading or instruction set out, 182. appellee should follow discussion of appellant, 183. manner of presenting argument, 183. must discuss only matters shown by the record, 184. should cite and discuss authorities, 185. points not discussed in appellant's first brief waived, 21, 188. supersedeas brief will not prevent dismissal, 189. appellee must file within ninety days, 190. taking out papers to prepare, 192. not read in oral argument, 195. assignment of errors challenged by, 200. filing in support of cross-errors, 206. motion to reinstate defcided on, 233. interchange required on proper application, 244. INDEX. 433 , {^Beferences are to Sections.'] c CASE LAW, should be made use of, 185, 187. CERTIFICATE, bill of exceptions, 30. what must be recited in certificate of clerk, 117. correction by clerk, 216. CERTIFYING DOWN, opinion certified to court below, when and how, 239, 248. petition for rehearing extends time for, when, 241. CERTIORARI, record of judgment brought up by, 8. incorrect statements in transcript only corrected by, 22, 208, 209. omitted judgment may be supplied by, 82. ' record of appeal by reserved question corrected, 95. oral argument on application not allowed, 193. court may issue on its own motion to afiirm a case, 210, 217. manner of applying for, 212. power of court to issue writ, 210. stranger to the record can not obtain, 210, 214. when and for what cause will issue, 210. nunc pro tunc entry brought into transcript by, 211. application must be verified, 212. form of application for, 212. application considered on petition and briefs only, 193, 218. notice of application necessary, 213. errors below corrected before writ issues, 214. rehearing not granted to permit writ to issue, 217. sometimes issues after oral argument, 218. form of writ, 219. mandate and injunction will not issue if certiorari is available, 265. CHANGE OP VENUE. motion and affidavits in support thereof made part of the record by bill of exceptions, 26. appeal from court to which cause was taken by, 117, 127. refusal to grant assigned as error, when, 134. refusal to grant is cause for a new trial, 134. abuse of discretion as to granting, 278. CHIEF JUSTICE, selection and duties of, 57. 28 — App. Pbacticb. 434 INDEX. [Heferences are to Sections.'] CITATION OF AUTHORITIES, brief should contain, 185. CLAIMS, jurisdiction in appeals of claims against decedents' estates, 69. CLERK'S CERTIFICATE, must show that bill of exceptions was signed and filed, 32. corrected if erroneous, 117, 216. what the clerk must certify to, 117. CO-APPELLANTS, who must be made, 146. co-parties need not be joined, when, 147. notice to, 156, 162, 164. COLLATERAL MATTERS, no part of the /record unless specially made so, 26. made part of the record by order of court, 36. COLLATERAL MOTIONS, no part of the record unless made so by order or bill, 25. COMPLAINT, may be first attacked on appeal, 2, 7, 38, 136, 283. questioned in appeal from appointment of receiver, 83. attacked on appeal, for what, 136. attacking sufiiciency by assignment of cross-errors, 140. necessary part of the record on appeal, 283. form of assignment of errors attacking for first time, 284. single paragraph not first attacked by assignment of errors, 286. attacking on appeal from a judgment by default, 287. rule for determining sufficiency when attacked on appeal, 287. construed by theory adopted below, 288. COMPROMISE, destroys right to appeal, 113. CONCLUSIONS OF LAW, should be excepted to at the time, 24. ' can not be questioned by a motion for a new trial, 39. questioned by assignment of error, 39. CONDITIONS, appeal bonds given for different appeals, 174. CONDITIONAL JUDGMENT, aifirmance or reversal on conditioiij 251. INDKX. 435 [Beferenees are to 8ections.'\ CONSENT, iurisdiction not conferred by, 289. CONSIDERATION OF APPEAL, time and manner of giving, 237. CONSTITUTION, amendment providing for increasing number of judges, 57, 61. CONSTITUTIONAL LAW, earlier decisions construing statute, 292. CONSTITUTIONAL QUESTION, appellate court can not decide, 62. can not be raised by petition for rehearing, 75. supreme court only has jurisdiction, 75. when is duly'presented, 75. CONSTRUCTION OF STATUTE, appellate court has authority to give, 75. later construction has retrospective effect, when, 295. CONTEST OF ELECTION, supreme court has jurisdiction of appeal, 78. CONTEST OF WILL, See Will. CONTINUANCE, motion and affidavits for must be saved by a bill of exceptions, 26. refusal to grant is cause for new trial, 41. granting or refusal may be reversible error, 275. CONTRACTS, overruling cases which have become basis of, 293. CONTRARY TO LAW, when verdict or decision is, 46. CO-PARTIES, notice of vacation appeal, 15. not affected by appeal in a criminal case, 100. appeal may be taken by part of several, 143. notice to is jurisdictional, 146. who are deemed such, 146. , effect of failure to join in appeal, 148. notice must be given, when, 156. time allowed for giving notice, 156. service of notice on, 157. form of notice, 159. waiver of notice to, 164. 436 , INDEX. [JBe/erences are to Sections.'] COEEECT EESULT, makes errors in procedure harmless, 258. COEEECTION OF CERTIFICATE, clerk directed to make on proper application, 216. COEEECTION OF EECOED, errors in record of trial court corrected, 117. transcript should be corrected before filing, 11, 117. made below before certiorari issues, 214. •notice given to adverse party, 215. rehearing not granted to enable parties to make, 11, 217. See Ceetioeaki. COST BOND, liability of sureties, 272. COSTS, liability of defendant in criminal case, 99, 271. co-party liable for costs of appeal, when, 148. security required of non-resident appellant, 207. party unnecessarily applying for certiorari liable, 210. failure to give security cause for dismissing appeal, 223. upon entry of remittitur, 251. items of cost of an appeal, 269. apportionment among parties to appeal, 270. motion to retax must be verified, 270. liability of sureties on bond, 272. collection in the higher courts, 273. COUNSEL, misconduct is cause for new trial, 491. COUNTEE CLAIM, may be first attacked by assignment of error, 38, 283. effect on jurisdiction of appeal, 66. COUETS, territorial jurisdiction of, 56. appeals lie to the supreme and appellate courts from what, 81. CEIMINAL CASE, execution of death sentence stayea by supreme court, 16, 169. sentence of imprisonment not stayed pending an appeal, 16, 169. collateral matters only saved by a bill of exceptions, 26. exceptions can not be reserved by order of court, 27, 36. time allowed for preparing bill of exceptions, 33. irregularity that is cause for new trial, 41. ^ misconduct of counsel cause for new trial, 49. when motion for new trial must be filed, 53. INDEX. 437 IBeferences are to iSections.'] CEIMINAL CAS'E— Continued. appeal by reserved question of law, 95. general rules governing appeals in, 98. who may take an appeal, 98. appeal by the state will lie, when, 99. when defendant may appeal from judgment, 100. time allowed for taking appeal, 101, 108. accepting pardon waives right to appeal, 112. waiver of appeal by flight, 114. ■ fees for transcript need not be prepaid, 115. indictment or information attacked by assignment of error, 136. assignment of errors necessary, 141. service of notice of appeal, 15, 168. necessity and effect of appeal bond, 169. advancement for immediate consideration, 196. opinion certified down immediately, 248. appeal from judgment on plea of guilty, 255. imposing insufiicient penalty on appellant harmless, 256. liability of defendant for costs of appeal, 271. abuse of discretion by refusing change of venue, 278. abuse of discretion by refusal to compel election, 279. discretion of court to control argument, 280. indictment or information first attacked on appeal, 283. acts previously committed not declared criminal by overruling decis- sion, 294. CRIMINAL LAW, assignment of errors necessary on appeal, 13. CROSS-COMPLAINT. attacked for first time by assignment of error, 38, 283. CROSS-ERRORS, appellee may attack judgment assigning cross-errors, 20. may be assigned to uphold judgment, 20. struck out unless brief is filed in sixty days, 21. assigned on the transcript, 125. applicatipn for leave to assign after submission,' 139. assignment need not contain names of parties, 139. notice necessary, when, 139. purpose of assignment, 139. when and how assigned, 139. what reached by assignment of, 140. time allowed for filing brief, 179. appellee should assign, when, 206. dismissal by appellant does not dismiss cross-errors, 232. 438 INDEX. [Beferences are to Sections. 1 D DEATH OF PARTY, effect on right to appeal, 145. substitution of heirs or legal representatives, 145, 166. service of notice in case of, 166. appeal taken after must be dismissed, when, 229. effect v?hen cause does not survive, 229. DEATH SENTENCE, suspension of execution by order of supreme court pending appeal, 16, 169. DECEDENT'S ESTATE, appeal bond necessary in appeal from, 9, 169. I'urisdiction of appeals from allowance or disallowance of claims, 69. when appeal is governed by the special statute, 97. time and manner of appealing from decision affecting settlement, 97, 104. extension of time for taking appeal, 101, 104. advancement of appeals in, 196. DECIDED CASE, transcript not withdrawn without special leave, 192. DECRilE, specific decree pronounced in suits in equity, 76. DEFAULT, application to set aside necessary, 38. application to set aside should precede appeal, when, 38. record on appeal from judgment by, 116. for what complaint may be attacked in appeal from judgment by, 287. lack of jurisdiction of party who suffered judgment by, 289. DEFECTIVE BOND, how far cured by the statute, 176. DEFENSE OF APPEAL, brief of appellee within ninety days, 190. DEMUEEER, ruling may be assigned as error, 39, 133. assignment of errors not tested by, 128, 200. DILIGENCE, party must use diligence to discover evidence before new trial, 45. party seeking to appeal after statutory period must show, 97. INDEX. 439 lEeferences are Co Sections.'] DIRECT MOTIONS, form part of the record, 25. DISABILITIES, See Legal Disabilities. DISCRETION OF COURT, dismissal of appeal for lack of marginal notes, 119. reinstatement of appeal lies in, 233. permitting withdrawal of transcript lies in, 234. control of costs on appeal, 270. abuse of discretion cause for new trial, 41. not controlled by writ of mandamus, 263. abuse by trial court is cause for reversal, 274. legitimate exercise not subject to review, 274. granting or refusing continuance may amount to abuse of, 275. abuse by permitting or refusing leave to amend pleading, 276. abuse by staying second action for same cause, 277. abuse by refusal to grant change of venue, 278. as to compelling election between counts of indictment, 279. control of court over argument, 280. control of court over examination of witnesses, 281. general matters controlled by discretion of trial court, 282. what record must show to secure a reversal for abuse of, 282. DISMISSAL OF APPEAL, , for lack of judgment or appealable order, 8, 220. failure to make marginal notes is cause for, 12, 119, 225. when motion to dismiss should be made, 18. appeal dismissed unless appellant files brief in sixty days, 21, 179, 222. question of legal disabilities raised by motion, 109. for acceptance of benefit of judgment, 112, 227. lack of assignment of errors cause for, 124, 125. assignment of errors must contain names of parties, 126, 226. lack of signature to assignment of error, 131. appellant's dismissal does not affect cross-errors, 140, 232. for lack of real interest of appellant, 142, 228. naming deceased party as appellant or appellee, cause for, 145, 229. failure to make necessary co-appellants, 146. motion to dismiss for defect of parties, 151. for failure to serve notice on necessarj- parties, 155, 161, 166, 221. for failure to give appeal bond, 169, 223. supersedeas brief not suflicient to prevent, 189. motion waived by joinder in error, when, 199. essentials of motion, 199, 231. failure to give security for costs, 207, 223. defects in transcript not usually cause for, 210. 440 INDEX. {^Beferences are to Sections.^ DISMISSAL OF AFVEAL—Continued. receipted judgment shown by certiorari cause for, 211. for failure to file transcript in time, 224. notice and motion necessary, 231. appellant may dismiss his appeal when, 232. reinstatement after, 233. liability for costs on, 270. DISTRIBUTION OF CASES, application for oral argument must precede, 21, 193. order in which causes are distributed, 196. when and how made, 235. effect on right to take out papers, 235. - not made where abstract of record is printed, 236. DOCUMENTARY EVIDENCE, insertion in bill of exceptions, 35. DULY PRESENTED, constitutional question is duly presented, when, 75. E EFFECT OF APPEAL, merely suspends proceedings to enforce judgment, 177. ELECTION, abuse of discretion by refusal to compel prosecutor to elect between counts, 279. EQUITY, appellate court has no jurisdiction of suits in equity, 62, 63, 76. incidental equitable questions decided by appellate court, 74. definition of suits in equity, 76. foreclosure of statutory liens appealed to appellate court, 63, 76. jurisdiction of supreme court in, 76. ERRORS, transcript must affirmatively show commission, 5, 122, 198. waiver by failure to save exception, 24, 110. of law occurring at the trial as cause for a new trial, 44. available only if shown by the record, 184. waiver by failure to discuss, 188. court may consider though not discussed by counsel, 188. joinder in, 203. harmless error, 254-258. what constitutes reversible error, 254. not available if party induced the court to commit it, 255. INDEX. 441 l^Beferences are to Sections.'] EEEORS— Continued. ruling in complaining party's favor is harmless, 256. not available to party against whom it exerted no real influence, 257. not available if it produced correct result, 258. See Assignment op Errors; Ohoss-Eekors. ESCAPE, of convict waives right to appeal, 114. EVIDENCE, oral testimony must be saved by bill of exceptions, 26. bill of exceptions must show it contains all the evidence, 30. when recital that bill of exceptions contains all the evidence disre- garded, 34. how made a part of the record on appeal, 35, 83. how rulings are assigned as reasons for new trial, 44. newly-discovered cause for new trial, 45. when discovery of new evidence is not cause for new trial, 45. verdict or finding not sustained by is cause for new trial, 46. , how specified in motion for new trial, 51. matters of judicial knowledge need not be proved, 123. EXAMINATION OF WITNESSES, abuse of discretion in controlling, 281. EXCEPTION, how may be reserved, 7. must be saved when ruling is made, 2, 7, 24. saving exception is first step in taking appeal, 7. how saved to ruling made in the absence of party, 24. to conclusions of law, 24. to decision in agreed case necessary, 24, 94. to ruling in case of reserved question of law, 24, 96. what may be shown by order-book entries, 25. kinds of exceptions shown by bill, 26. what may be reserved by order of court, 27. how taken to instructions, 28. manner of reserving exceptions to instructions, 28. allowance of time to reduce to writing, 33. not necessary to support attack on complaint or jurisdiction of court, 38. distinction between protesting and reserving exception, 49. must be reserved to ruling on motion for new trial, 54. what may be reserved by bill of exceptions after motion for new trial is overruled, 54. defendant in criminal case can only question rulings excepted to, 100. to ruling in party's own favor not available, 256. EXCESSIVE DAMAGES, when judgment will be reversed for, 47. 442 INDEX. [References are to Sections.'] EXECUTION, issue pending appeal before bond is filed, 171. from higher courts to collect costs, 273. EXECUTORS, jurisdiction of appeals when exceptions are filed to reports, 70. appeal from appointment or refusal to appoint, 71. orders refusing to remove, 72. EXTENSION OF TIME, for.appealing in settlement of decedent's estate, 97, 104. ,time for appealing will be extended when, 107. when allowed for filing brief, 179. EXTRAORDINARY JURISDICTION, to issue restraining orders and injunctions, 259. F FACT, questions of fact not assignable as error, 6. question of fact can not be reserved, 35. errors of fact not available on appeal, 98, 128. issue presented whether right to appeal was waived, 128. brief should contain statement of, 181. FEES, payment for transcript in civil case, 115. FEIGNED ACTION, appeal can not be maintained in, 142. FELONY, appeal from conviction taken only to supreme court, 64, 78. FILING, I time and manner of filing transcript, 14, 121. how filing of bill of exceptions shown, 32. of appeal bond, 175. FINAL JUDGMENT, appeal lies from, 82. requisites of, 82. appeal in decedent's estate will only lie from, 97. appeal from, only in criminal case, 99. time for appealing dates from, 101, 108. FINAL RULING, assignment of error must relate to, 134. INDEX., 443 [JReferences are to Sections."] FLIGHT, of convicted person waives right to appeal, 114. FORECLOSURE, appellate court has jurisdiction, when, 63. jurisdiction of appeals in foreclosure suits, 76. ' FORMS, of bill of exceptions, 29. of motion for new trial, 5.0. of transcript for an appeal, 116. of assignment of errors, 129. notice of appeal, 159. proof of service of notice, 159. of appeal bond in different appeals, 176. of common joinder in error, 203. of application for certiorari, 212. of writ of certiorari, 219. of petition for rehearing, 243. of assignment of errors atttacking cojnplaint on appeal, 284. of assignment of errors attacking indictment on appeal, 285. FORMER ADJUDICATION, controlling effect of, 290, 291. authority as affecting title and contracts, 293. authority as to construction of criminal statute, 294. overruling ca'se given retrospective effect, when, 295- FRAUD, extension of time for appealing where appellant was prevented by, 101 . inherent power of court to relieve appellant in case of, 160. FUGITIVE FROM JUSTICE, can not maintain an appeal, 114. G GUARDIAN, need not file appeal bond, 9, 169, 170. jurisdiction of appeals on exceptions to reports, 70. appeal from appointment or refusal to appoint, 71. appeal from order to remove or refusal to remove, 72. H HABEAS CORPUS, appeals in habeas corpus lie only to supreme court, 78. appeals from interlocutory orders, 87. consideration of evidence on appeal, 87. advancement of appeals from orders, 196. 444 INDEX. [ife/erences are to Sections."] HARMLESS EEROE, defects which might have been amended below deemed amended on appeal, 254. error not affirmatively shown to have been prejudicial held harmless, 254. of what error appellant may complain, 254. substantial error presumed prejudicial, when, 254. technical errors held to be harmless, when, 254. error party induced the court to commit, 255. invitation to err may be implied, 255. ruling in complaining party's favor, 256. admission of immaterial or incompetent evidence is, when, 257. ruling on demurrer to bad paragraph of pleading, 257. rulings which exerted no real influence, 257. error which produced correct result, 258. HEARING APPEALS, authority of court to change order of, 196. can not be advanced by mere agreement of parties, 196. notice of motion to advance, 196. order of submission, 196. consideration of motion to advance, 197. essentials of motion to advance, 197. order of distribution, 235. HEIRS, necessary parties to appeal, when, 145, 146. substitution as parties to appeal, 145. served with notice of appeal, when, 166. HUSBAND AND WIFE, may join in assigning errors in favor of wife, 138. I INCIDENTAL MATTERS, may be decided by court having jurisdiction of main issue, 74. INDICTMENT, attacked first by assignment of error on appeal, 136, 283. discretion as to compelling election between counts, 279. necessary part of record on appeal, 283. form of assignment of errors attacking for first time, 285. single count not first attacked by assignment of error, 286. INFOEMATION, attacked by assignment of errors, 136. INDEX. 445 [ije/erences are to SecUons.'\ INJUNCTION, appeal from order relating to, 86. effect of stay of execution in appeal from, 105. appeal bond necessary in appeal from temporary orderv 169. power of higher courts to issue, 259. cases in which higher courts may issue, 260. issued by higher courts only in aid of appeal, 261. not issued when certiorari affords complete remedy, 265. procedure to obtain writ on appeal, 266. prompt application necessary, 267. INSTRUCTIONS, can' only be made part of the record in a criminal case by bill of ex- ceptions, 26, 27, 28. made part of the record by bill of exceptions, when, 26. made part of the record by order of court, when, 27, 36. exceptions to instructions in civil case reserved, how, 28. assigning the giving or refusal of instructions as cause for new trial, 44. misconduct in argument may be cured by, 49. how designated in motion for new trial, 51. appeal by reserved question of law relating to, 96. made part of the record, how, 116. substance should be given in brief, 182. INTEREST, not added to judgment in determining jurisdiction, 65, 66. appellant must have in controversy, 144. only party having real interest can maintain appeal, 142, 228. INTERLOCUTORY ORDERS, appeals lie to supreme court, 59. ruling on demurrer, 81. appealed from only when statute expressly so provides, 82, 88. as to admission of parties, 82. conclusions of law on special finding, 82. inspection of papers or documents, 82, 84. ruling in conduct of trial, 82. ruling on motion to quash, 82. setting aside an order or judgment, 82. when appeal will lie from, 82, 88. appeal from order appointing receiver, 83. for surrender of property or rights therein appealed from, 84. no appeal from refusal to make, when, 84, 86. appeal from not authorized by statute providing for an appeal by re- served question, 88. tiirie and manner of appealing from, 92. no appeal from in matters connected with the settlement of decedents' estates, 97. 446 INDEX. {^References are to Sections.'] INTERLOCUTORY 0^)^^.%— Continued. stay on appeals from, 105, 174. effect of delay in appealing in receivership case, 103. time allowed for taking appeal, 105. appeal bond must be filed in appeal from, 169. INTERROGATORIES TO JURY, answers are a part of the record, 25. INTERROGATORIES TO PARTIES, rulings on must be assigned as error, 39. INVITED ERROR, doctrine of estoppel applied in case of, 255. implied invitation to rule erroneously, 255. not available to party who asks for ruling, 55, 255. opening door to incompetent evidence, 255. steps necessary to make erroneous ruling available, 255. ISSUE, exceptions taken to rulings in formation of must be recorded immedi- ately, 54. when cause may be presented without the formation of, 94. no appeal can be maintained in the absence of the pleadings, 94, 116. ISSUES OF FACT, trial in supreme court, 60. J JOINDER IN ERROR, is an appearance by appellee, 19. admits the record, 203. form of common joinder, 203. when entered and its effect, 203. what is waived by, 204. withdrawal when entered by mistake, 204. what is not waived by, 205. JOINT ASSIGNMENT, must be good as to all joining in it, 138. JOINT MOTION, dismissal not secured by, unless motion is good as to all joining in it, 231. JOINT PARTIES, to judgment below must be parties to appeal from, 146, 149. See Parties. INDEX. 447 \_Iteferenoes are to Sections.'] JOINT PPECIFIOATION, not proper in assignment of error, 135. JUDGE, authority to settle and sign bill of exceptions, 31. selection and duties of chief justice, 57. number in supreme and appellate courts, 57, 61. control of discretion of, 274, 282. JUDGMENT, can only be attacked for error in record, 3. appellant should procure entry and signing, 8. dismissal of appeal unless record shows entry of, 8, 220. transcript must show rendition and entry, 8. effect of supersedeas on judgment appealed from, 16. supersedeas does not suspend, 16. is vacated by order granting new trial, 55. appeal usually lies only from final, 82. distinguished from interlocutory order, 82. transcript must show entry of, 82 what are final judgments, 82. necessary part of record on appeal by the state, 95. date of rendition controls time for appealing, 101. in action to review judgment, appeal from. 111. party accepting benefit can not appeal, 112. necessary part of record on appeal, 116. appeal can not be maintained in absence of, 133. effect of appeal in criminal case, 169. effect of supersedeas on self-executing, 177. not vacated by an appeal, 177. authority of higher court to direct judgment in trial court, 249, 264. void, appeal will lie from, 265, 289. JUDGMENT ON APPEAL, judgment on appeal becomes effective, when, 239. when and how certified to trial court, 248. new trial will be ordered, when, 249. is the law of the case, 250. of higher court controls subsequent stages of case, 250. directing a remittitur, 251. affirming as to some parties and reversing as to others, 252. apportioning costs, 270. JUDICIAL ACT, settling of a bill of exceptions can not be flelegated, 31. settlement of a bill of exceptions is a judicial act, 35. 448 INDEX. [JBe/erences are to Sections.^ JUDICIAL NOTICE, court takes, of what, 123. JURISDICTION, of court may be first attacked by assignment of error, 2, 7, 136. of person who voluntarily appears, 19, 163, 164, 204. meaning of jurisdiction over subject-matter, 38, 289. objection presented by assignment of error, 38. territory over which appellate jurisdiction extends, 56. supreme court has over appeals not specially assigned to appellate court, 58. supreme court has of interlocutory appeals, 59. original jurisdiction of supreme court, 60. cases in which appellate court is forbidden to exercise, 62. cases in which appellate court has, 63, 73. of appellate court in foreclosure suits, 63. main issue carries with it incidental matters, 74. appellate court may construe and apply constitution, 75. assignment of errors essential to, 124, 130. notice to co-parties essential, 146, 156. defect of parties deprives court of, 150. objections not waived by joinder in error, 205. auxiliary, 259, 268. of higher courts to issue injunctions, 260. attacked for first time on appeal, 289. not conferred by consent of parties, 289. JURY, what misconduct is cause for new trial, 43. power of supreme court to call, 60. JUSTICE OF THE PEACE, jurisdiction of appeals in cases originating Jiefore, 65. when case originating before can not be appealed, 89. L LACHES, party applying for extraordinary writ must show freedom from, 267. LANDLORD AND TENANT, jurisdiction of appeals in action between, 68. LAW OF CASE, decision of appellate court is, though erroneous, 80. decision on appeal controls court below, 249, 250. judgment on appeal controls on second appeal, 250. what it covers, 250. decision on appeal remains, although overruled, 296. INDEX. 449 \_Beferences are to SecUons."] LEGAL DISABILITIES, extension of time for appealing by persons under, 109. of co-appellant not available to party not under, 109. what persons are under, 1U9. LIBRARY, use of supreme court, 186. LIENS, when appellate court has jurisdiction of foreclosure suits, 63. jurisdiction of foreclosure of statutory liens, 63, 76. LINES, of transcript must be numbered, 118. M MANDAMUS, supreme court will issue to compel signing of bill of exceptions, 31. when supreme and appellate courts may issue writ, 60. appellate jurisdiction is in supreme court, 76. supreme court may issue to compel transfer of appeal, 79, 264. from higher courts in aid of appeals, 262. discretion of trial judge not controlled by, 263. bill of exceptions ordered signed, 264. power of supreme court to direct judgment, 264. preparation of case for appeal compelled by, 264. not issued when certiorari affords complete remedy, 265. procedure to obtain writ on appeal, 266. prompt application is necessary, 267. MANDATE, modification petitioned for, 245. MARGINAL NOTES, must be made on the transcript by appellant, 12, 119. dismissal for failure to make, 225. MISCONDUCT OF JURY, may be cause for a new trial, 43. when deemed harmless, 43. MISCONDUCT OF COUNSEL, is in effect misconduct of his client, 49. may be cause for new trial, 49. MISDEMEANORS, appeals in prosecutions lie to the appellate court, 64. 29— App. Practice. 450 INDEX. l^Beferences are to Sections.'] MISTAKE, time for appealing extended in case of excusable, 101. accepting benefit of judgment by mistake, 112. time for giving notice of appeal extended, when, 160. MODIFICATION OF MANDATE, petitioned for within sixty days, 23, 245. MONEY, See Payment op Money. MONEY JUDGMENT, amount in controversy, how determined, 66. to what court appeal lies, 66. appeal does not lie, when, 89. MOTION, when motion to dismiss should be made, 18. direct is part of intrinsic record, 25, 116. for judgment on answers to interrogatories, 25. for venire de novo, 25. forms part of the record, when, 25, 116. addressed to pleadings saved by bill of exceptions, when, 26. collateral are not parts of the record unless specially made so, 26, 116. to modify judgment, 26. when rulings must be saved by a bill of exceptions, 26. addressed to pleadings, ruling not cause for new trial, 39. in supreme and appellate courts must be in writing, 57. postpones time for appealing, when, 101. rulings which may be assigned as error, 133. to dismiss appeal for defect of parties, 151. notice of . presentation of collateral motions necessary, 167, 202. preliminary motion to dismiss, 199. oral argument not permitted on, 193. advancement of appeal asked by, 197. assignment of errors challenged by, 200. matters in bar of appeal presented by verified motion, 201. verified and supported by affidavits and briefs, 202. for certiorari, 212, 213. for nunc pro tunc entry, 214, 215. record of trial court corrected by, 214. essentials of motion to dismiss appeal, 231. appellant can only dismiss his appeal by, 232. to reinstate appeal after dismissal, 233. to retax costs must be verified, 270. MOTION FOR JUDGMENT, ruling on is not cause for new trial, 39. INDEX. 451 {Beferences are to Sections.'] MOTION FOR NEW TRIAL, forms part of the record, 25. what are causes for, 40, 49. should be in writing and state reasons, 50. causes should be separately specified, 51. party may file but one motion, 51. affidavits in support are necessary, when, 52. excuse for not filing in time, 53. time and manner of filing, 53. reducing exception to writing after motion is overruled, 54. not necessary in agreed case, 94. not necessary in appeal by the state on a reserved question of law in a criminal case, 95. necessary to present reserved question of law in civil case, 96. proper specifications in can not be separately assigned as error, 134. See New Trial. MOTION IN ARREST, ruling on is not cause for new trial, 39. MOTION TO DISMISS, when should be presented, 151. essentials of, 231. MOTION TO MODIFY, ruling on is not cause for new trial, 39. MUNICIPAL ORDINANCE, cases involving, jurisdiction over, 64, 66, 75. See Oedinance. N NAMES OF PARTIES, assignment of errors must contain names of all parties, 126, 226. how stated in assignment of errors, 126. must appear in full in assignment of errors, 126. assignment of cross-errors need not contain, 139. NEGLECT, relief not granted to person guilty of, 37, 214. NEWLY-DISCOVERED EVIDENCE, cause for new trial, when, 45. NEW TRIAL, motion for is part of intrinsic record, 25, 116. affidavit in support of motion, how made part of record, 26. granting time on overruling motion, 33. 452 INDEX. '[Beferences are to Sections.'] NEW TRIAL— Contimied. errors that need not be reviewed by motion, 39. matters not reached by motion for may be assigned as error, 39, 134. number of statutory causes, 40. irregularity in proceedings cause for, 41. accident or surprise cause for, 42. misconduct of jury is cause for, 43. error of law occurring at the trial, 44. affidavits in support of motion for is necessary, when, 152. affidavits in support of motion, newly-discovered evidence, 45. verdict not supported by evidence is cause for, 46. verdict contrary to law is cause for, 46. newly-discovered evidence is cause for, 45. error in assessment of recovery, 47, 48. excessive damages, cause for in action for tort, 47. misconduct of party or counsel, 49. essentials of motion for, 50-54. form of motion for, 50. motion should be in writing, 50. second motion for permitted, when, 50. enumeration of causes in motion, 51. single motion permitted which must embrace all causes relied on, 51. causes that must be supported by affidavits, 52. counter affidavits admissible on motion for, 52. motion for may be made after judgment, when, 53. time and manner of filing motion, 53. what constitutes filing of, 53. exception to ruling on motion for is necessary, 54. reducing exception to writing after motion is overruled, 54. effect of granting, 55. order granting seldom available error, 55. motion for not necessary in agreed case, 94. motion for is necessary in case of reserved question of law, 96. motion for not necessary in appeal by state in case of reserved question of law, 96. appeal within one year after motion is overruled, 101. extension of time for taking term appeal by filing motion, 102. motion for is, cut off by motion in arrest of judgment, 116. that court erred in overruling motion for is proper assignment of error, 129, 134. causes can not be assigned as error, 134. rulings in course of trial should be reviewed by motion for, 134. authority of appellate tribunal to order, 249. court may direct on reversing appeal, 249. NON-RESIDENT, notice of appeal by publication, 15, 162. required to give cost bond, 207. INDEX. 453 \_Beferences are to Sections.'} NOTICE, clerk guided by assignment of errors, 13, 130. essential to jurisdiction, 15, 152. manner of serving notice of appeal, 15, 157. of appeal necessary to confer jurisdiction, 15. of application for certiorari after submission necessary, 22, 213. of application to amend bill of exceptions necessary, 37. of proceeding to correct record in trial court necessary, 37, 215. appeal in receivership case, 83. time for giving in appeal from appointment or refusal of receiver, 93. of application to extend time for appealing, 97. necessary part of perfecting an appeal, 107. service in appeals of criminal cases, 108. ordered on filing transcript, when, 121. of assignment ol croas-errors necessary, when, 139. co-parties need not be notified of appeal, when, 147. of appeal must be served on co-parties, 147. dismissal for failure to serve necessary parties, 151, 221. of presentation of motion necessary, 151. necessary to constitute due process of law, 152. time for giving may be extended, 152, service must conform to the statute, 153. failure to serve on appellee excused, when, 155. how far an essential step in taking an appeal, 155. issuing from court above in vacation appeal, 155. service on party necessary, when, 155. service on co-parties necessary, when, 156. manner of proving notice, 157. proof of service, 157. written notice must be given, 158. form of, 159. what is sufficient, 159. time allowed for issuing and serving, 160. service by publication, 162. waiver by appellee, 163. waiver by co-party, ,164. not necessary in term appeal, 165. service in case party to judgment dies, 166. of steps in conduct of appeal, 167. time for which given of collateral motions, 167. of appeal by the state, 168. of appeal in criminal case, 168. of submission of cause, 178. submission by agreement waives, 178. of motion to advance appeal necessary, 197. of collateral motions and pleas necessary, 202. of application for security for costs, 207. 454 INDEX. [Beferences are to Sections."] ^(niCK— Continued. of motion to dismiss appeal necessary, 231. of appellant's motion to dismiss appeal necessary, 232. See Judicial Notice. NUMBERING PAGES AND LINES, required by rules of court, 118. dismissal of appeal for failure to number, 225. NUNC PRO TUNg, delay in entry of judgment does not extend time for appealing, 101. corrected record brought up by certiorari, 211. by whom motion may be made, 214. entry made, when, 214. order may be appealed from, 214. trial court will correct its record, when, 214. written evidence necessary to obtain correction, 214. notice of application for correction necessary, 215. OBJECTIONS, to complaint made for first time on appeal, 38, 283. to cross-complaint or counter claim may be first made on appeal, 38, 283. to jurisdiction over the person first presented on appeal, 38, 289. when waived by joinder in error, 205. must be presented when ruling is made, 255. to answer can not be first made on appeal, 283. to indictment may be first made on appeal, 283. to reply can not be first made on appeal, 283. when presented for first time on appeal, 283, 289. to jurisdiction of subject-matter may be first made on appeal, 289. OPINIONS, of supreme and appellate courts are in writing, 57. preparation of opinions in writing, 238. force and effect of written opinion, 239. modification petitioned for, 245. are evidence of the law, 253. bind all inferior courts until overruled, 253. publication and authority, 253. binding force in future cases, 291. ORAL ARGUMENT, does not dispense with briefs, 21. confined to statement of points in brief, 21, 194. manner of preparing for, 21, 194. INDEX. 455 [References are to Sections.'] ORAL ARGUMENT— ConJiBMed. when must be applied for, 21, 193. heard by court, when, 193. purpose and manner of conducting, 195. certiorari may issue after argument, 218. ORDER BOOK, entries are part of intrinsic record, 25. what exceptions are shown by entries in, 25. filing bill of exceptions shown by entry, 32. grant of time to prepare bill of exceptions must be shown by, 33, 54. what must be shown by entries as to bill of exceptions, 34. filing motion for new trial shown by entry, 53. ORDER OF COURT, matters reserved must be copied into the order, 27. what exceptions may be reserved by, 27, 36. must recite in full matters made part of the recprd, 36. not available as substitute for bill in a criminal case, 36. making collateral matters part of the record, 116. ORDERS, See Interlocutory Orders. ORDINANCE, appellate court can not determine validity of, 62. appeals from judgments for penalties lie to appellate court, 64, 75. appellate court has power to construe, 75. questions as to validity belong to supreme court, 75. ORIGINAL JURISDICTION, what supreme court may exercise, 60. ORIGINAL PAPERS, transcript can not be contradicted by producing, 4. OVERRULING CASES, effect ott former judgment, 253, 296. appellate court may recommend decisions to be overruled, 79. decision will be overruled, when, 292. when titles or contracts depend thereon, 293. acts declared innocent not held to be criminal, 294. retrospective effect given, when, 295. former decision not affected as law of the case, 253, 296. P PAGES, of transcript must be numbered, 12, 118. penalty for failure to number, 225. 456 INDEX. [References are to Seetions.l PAGE AND LINE, brief should refer to specific part of record, 182. PAPERS, punishment for failure to return, 192. taking out to prepare brief, 192. PARDON, acceptance waives right to appeal, 112. PARTIAL AFFIRMANCE, appellate tribunal may order, 252. PARTIES, under disabilities, when may appeal, 109. must be named in assignment of errors, 126. appealable interest, 142. appeal taken only by real party in interest, 142. who may take appeal, 142m, 145. appeal can only be taken by party to the judgment, 144. effect of death of one or more, 145, 166. who must be made co-appellants, 146. refusal of co-parties to join, effect upon, 148. who named and notified as appellees, 149. how defect may be waived, 150. motion to dismiss for defect of, 151. notice to, 152, 168. failure to serve with notice cause for dismissal of appeal, 221. in interest alone entitled to ask for rehearing, 240. PARTITION, jurisdiction of appeals is in supreme court, 78. PAYMENT, acceptance of waives right to appeal, 112. of judgment by defendant does not estop him to appeal, 112. waiver of right to appeal shown by certiorari, 211. PAYMENT OF MONEY, , appeal lies from order for specific payment, 84. PENALTIES, appeals lie to appellate court in actions for, 64, 66. PERFECTING APPEAL, must be done within the time allowed, 107. PERSONAL PROPERTY, jurisdiction of appeals in actions for recovery, 67. value is immaterial in determining jurisdiction in replevin, 67. interlocutory order for surrender appealed from, 84. INDEX. 457 [Beferences are to Sections,'] PETITION, for extension of time to appeal, 97. to advance appeal, 196. for writ of certiorari, 212. for injunction on appeal, 266. PETITION FOE REHEARING, may be filed by either party within sixty days, 23. must be accompanied by transcript and petitioner's brief, 23, 244. who has a right to present, 240. when and how presented, 241. causes which may properly be stated in, 242. modification of mandate obtained by, 245. effect of sustaining, 246. after decision on rehearing, 247. second petition not entertained, 247. PETITION TO MODIFY, presented by either party within sixty days, 23. PLEA OP GUILTY, appeal from judgment on, 255. PLEADINGS, assignment of errors is appellant's pleading, 6, 13, 124. form part of the record, 25, 116. struck out must be brought into record by bill of exceptions, 26, 116. rulings on are not causes for new trial, 39. amendment takes original out of the record, 116. necessary part of transcript on appeal, 116. matters of judicial knowledge need not be pleaded, 123. rulings on may be assigned as error, 133. when may be first attacked on appeal, 136, 283. substance should be given in brief, 182. substitute pleadings may be brought up by certiorari, 214. substitution of, 214. abuse of discretion by permitting or refusing amendment, 276. amendment is within discretion of trial court, 276. attacking for first time on appeal, 283. parties are bound by theory adopted in trial court, 288. theory adopted below not changed on appeal, 288. PLEADINGS ON APPEAL, appellee's plea stricken out, when, 4. assignment of errors is appellant's pleading, 13. assignment of errors, 124, 141. assignment of cross-errors, 139, 140, 206. demurrer to assignment of errors, 200. 458 INDEX. IBeferences are to Sections.'] PLEADINGS ON APT^AIj— Continued. answer to assignment of errors, 201. appellee may present his defense by plea, 201. presentation of matter in bar by motion, 201. common joinder admits the record, 203. ans'^er to assignment of cross-errors not required, 206. POINTS FOE ARGUMENT, necessity for preparing and filing, 21, 194. must be interchanged, 194. oral argument confined to, 195. POSSESSION OF REAL ESTATE, appeal from order to surrender, 85. PRECIPE, manner of obtaining transcript, 10, 115. becomes part of the record on appeal, 115. direction to clerk in preparation of record, 115. is liberally construed, 115. PREJUDICIAL ERROR, prejudicial character of ruling must affirmatively appear, 117, 209. appellant must present record showing that court committed, 254. what error is not, 255, 258. PRELIMINARY MOTION, appellee's motions before entering appearance, 18, 199, 200 201. PREPARATION OP OPINIONS, manner of preparing opinions of the court, 238. PRESUMPTION, rulings presumed correct until contrary is shown, 5. that motion for new trial was filed in time, 53. judgment appealed from presumed to be correct, 122. court below presumed not to have erred, 198. of -prejudice from erroneous ruling, 258. PRINTING, of briefs, 21, 236. of abstract of record, 57, 236. PROCEDURE, errors not available if correct result was reached, 258. to obtain extraordinary writ on appeal, 266. PROCESS OF LAW, notice is essential to constitute, 152. INDEX. 459 {^Beferences are to 8eetions.'\ PRODUCTION OF DOCUMENTS, appeal will not lie from order for, 84. PROHIBITION, power of higher courts to issue writ, 60, 268. deflnition of writ, 268. PROOF OF NOTICE, by publication, 15, 159, 162. filed with transcript, when, 121, of service, 157. how made, 159. PROSECUTIONS, for misdemeanors, appellate court has jurisdiction of appeal, 64. for felony, supreme court has jurisdiction of appeal, 78. PUBLICATION, service of notice by, 15, 162. notice to co-parties given by, 156. proof of, 162. PUBLICATION OF OPINIONS, provisions of law relating to, 253. PUBLIC OFFICE, restraining order in appeal relating to, 260. PUBLIC QUESTION, advancement of causes involving, 196. Q QUO WARRANTO, jurisdiction of appeal is in supreme court, 78. R REAL CONTROVERSY, is essential to maintenance of appeal, 142. REAL ESTATE, appellate court has no jurisdiction over questions of title, 62, 77. questions of title in actions between landlord and tenant, 68. incidental questions of title decided by appellate court, 74. jurisdiction of appeals involving questions of title, 77. what actions involve questions of title, 77. appeal from order to surrender possession, 85. overruling casfes affecting title to, 293. 460 INDEX. [Beferences are to Sections.'] RECEIVERS, bond in appeal from appointment of, 9, 169. orders concerning receivers from which appeal lies, 83. notice of appeal necessary, when, 93. time and manner of appealing from order appointing or refusing, 93. time for appealing from appointment, 103. • may appeal as successor of party, 142. RECORD, imports absolute verity, 4, 208. statements can not be contradicted, 4, 208. what forms part of record without bill of exceptions, 25, 116. collateral matters which form no part of record unless made so, 26. what constitutes in appeal of agreed case, 94. what constitutes in appeal by reserved question, 95. what must contain in appeal of criminal case, 98. can not be made by agreement, 115, 208. only what was properly made so below are proper parts of the tran- script, 115. must be copied to form the transcript of an appeal, 116. what form parts of the record proper, 116. ' need not recite matters of judicial knowledge, 123. must disclose errors assigned by appellant, 137. when cross-errors are assigned, 139. errors disclosed alone available, 184. appeal is tried by, 208. correction by certiorari, 208-219. how far defects in transcript may be remedied by agreement, 208. corrected by trial court and brought up by certiorari, 214. may be amended by mine pro tunc entry, 214. rehearing not granted to permit correction of, 242. mandamus will lie to compel clerk to furnish transcript, 264. must contain complaint or indictment, 283. See Transcript. REHEARING, for what errors rehearing may be granted, 23, 242. constitutional question can not be first raised by petition, 75. not granted to dismiss appeal fqr defect of parties, 150. not granted on questions not previously discussed, 188. oral argument on petition not allowed, 193. not granted to permit certiorari to issue, 217. who may petition for, 240. computation of time for filing petition, 241. effect of filing petition for, 241 . petition must be filed within statutory time, 241. time and manner of petitioning for, 241. form of petition, 243. INDEX. [Beferences are to Sections.'] EEHEAEING— ConiinJiec?. brief in petition, 244. how petition is submitted for consideration, 244. mandate modified on petition, 245. effect of granting, 246. petition after decision on reliearing, 247. second petition not entertained, 247. See Petition fob Rbheaeinq. EEINSTATEMENT OF APPEAL, essentials of motion for, 233. notice of motion necessary, 233. practice on hearing of motion, 233. when erroneously dismissed, 233. EEMITTITUB, ordered for excess in amount recovered, 48, 251. costs upon entry of, 270. EEPLEVIN, jurisdiction of actions in replevin, 67. EEPLY, can not be first questioned by assignment of error, 38, 283. REPOETS, publication of court opinions, 253. EESEEVED QUESTION, reservation by special bill of exceptions, 35. when must be reviewed by motion for new trial, 44. final judgment is necessary before appeal, 88, 96. appeal by in criminal case, 95. bill of exceptions in criminal case, 95. motion for new trial unnecessary in appeal by state, 95. only question of law may be reserved, 95, 96. appeal does not stay proceedings, 96. appeal in civil case, 96. bill of exceptions in civil case, 96. exception to ruling is necessary, 96. notice of intention to appeal by is necessary, 96. object of statute providing for, 96. presentation to trial court by motion for new trial, 96. supersedeas ordered only bj- appellate tribunal, 96. state may take an appeal by, 99. time allowed for taking appeal, 101. 461 462 INDEX. [iJe/erences are to Sections."] RESTRAINING ORDER, no appeal from temporary order, 86. jurisdiction to issue in aid of appeal, 259, 260. supreme or appellate court will not issue, when, 261. procedure to obtain on appeal, 266. REVERSIBLE ERROR, what constitutes, 254. REVIEW, distinction between appeal and action to review, 3. of questions by motion for new trial, 39, 53, 94, 95, 96. jurisdiction of appeal in action to review, 66. waiver of right to appeal by action to review, 111. See New Trial. RULE DAY, opening of terms of court, 57. RULES OF COURT, require marginal notes on transcript, 12, 119. require pages and lines of transcript to be numbered, 12, 118. waiver of points not discussed in first brief, 21, 188. appellate court governed by rules of supreme court when applicable, 79. copy of additional brief furnished adverse counsel, 191. penalty for failure to comply with, 225. abstract of record may be printed, 236. RULE OF PROPERTY, decision not overruled after it has become, 293. s SECOND ACTION, abuse of discretion as to staying for same cause, 277. SECOND APPEAL, withdrawal of transcript for purpose of taking, 234. SECURITY FOR COSTS, non-resident appellant required to give, 207. failure to give is cause for dismissing appeal, 223. SERVICE OF NOTICE, must conform to the statute, 153. when made on attorney, 154, 156. on co-parties, 156. how made and proved, 157. form of proof, 159. extension of time allowed for, 160. INDEX. 463 l^Meferences are to Sections,'] SERVICE OF TUCynCE— Continued, time allowed in different appeals, 160. made by publication, wben, 162. serving and proving notice by publication, 162. SETTING ASIDE JUDGMENT, jurisdiction of appeal in action to set aside judgment, 66. SHERIFF, serves notice of appeal issued from higher court, 15, 157. collects QOBt of appeal, 273. SIGNING, of bill of exceptions by judge, 30, 31. assignment of errors signed by appellant or his attorney, 131. SPECIAL JUDGE, may sign bill of exceptions, when, 31. i SPECIFICATION, in assignment of errors must be distinct, 127. in assignment of errors must question single ruling, 135. STARE DECISIS, doctrine stated and explained, 290. when earlier decisions will be overruled, 292. authority of cases declaring rule of property, 293. what was declared not criminal will not be held to be so, 294. overruling case given retrospective effect, when, 295. STATE, effect of appeal by, 99. from what may appeal in criminal cases, 99. has no general right to appeal in criminal case, 99. time and manner of appealing in criminal case, 99. may appeal without giving bond, 170. STATEMENT OF FACTS, brief should contain, 181. party must challenge incorrect statement in his adversary's brief, 181, 190. STATUTE, supreme court has jurisdiction where constitutionality is involved, 62, 75. appellate court may construe, 75. STATUTORY LIENS, jurisdiction of appellate court in suits to foreclose, 63. See Liens. 464 INDEX. [^References are to Sections."] STATUTORY PENALTIES, appellate court has jurisdiction of actions to recover, 64, 66. STAY OP PROCEEDINGS, appeal bond necessary to obtain, when, 9, 169, 170. how obtained pending an appeal, 16, 172. in appeal by reserved question of law, 96. appeal by state in criminal case does not afiect judgment, 99. by appeal from interlocutory order, 105. when appeal operates as stay without bond, 170. filing bond necessary to obtain, 171. term appeal operates as from date of filing bond, 171. appeal does not necessarily operate as, 172. STENOGRAPHER, transcript of evidence made part of record, how, 35. fees for writing out evidence part of costs of appeal, 270. STEPS IN APPEAL, notice must be given, 167. STRANGER, can not raise constitutional question, 75. can not obtain writ of certiorari, 210. can not obtain rehearing, 240. SUBMISSION, of what submission consists, 17, 178. when and how causes are submitted, 17, 18, 178. setting aside, 119, 178. assignment of errors can not be amended after, 132. cross-errors assigned only by leave of court, 139. by agreement waives what, 163, 178. may be made by agreement of parties, 178. notice of, 178. of appeals in criminal cases, 178. of appeals in term, 178. of habeas corpus cases, 178. ' all steps in appeal date from, 178, certiorari will issue after submission, when, 210. SUBSTITUTION, of parties in case of death, 145, 166. of pleadings, 214. SUCCESSORS IN INTEREST, may maintain appeal, 142, INDEX. 465 \_Beferences are to Sections.'} SUITS IN EQUITY, See Equity. SUNDAY, signing bill of exceptions on Sunday is unlawful, 32. when counted in computing time for appeal, 106. _when excluded in computing time for filing brief, 179. SUPERSEDEAS, for what purpose obtained, 16, 172. not operative until appeal bond is filed, 16, ^69, 170. when will issue, 16, 172. who has power to grant, 16, 96, 172. in appeal by reserved question of law, 96. applied for when transcript is filed, 121. application for, 172. in favor of one of several appellants, 172. appeal bond necessary to obtain, 173. does not give right to do what judgment forbids, 177. effect on judgment appealed from, 177. effect on self -executing judgments, 177. SUPERSEDEAS BRIEF, not sufficient to excuse further brief, 179, 189. not sufficient to prevent dismissal, 189. SUPREME COURT, territorial extent of juricdiction, 56. organization and customs, 57. from what courts appeals will lie, 58, 81. miscellaneous cases in which it has jurisdiction, 58, 78. no right to trial by jury in, 60. increase in number of judges, 61. cases in which it has exclusive jurisdiction, 62. has jurisdiction in prosecutions for felony, 64, 78. statutory penalties, jurisdiction over, 64, 66. municipal ordinances, jurisdiction of appeals, 74, 75. constitutional question gives supreme court exclusive jurisdiction, when, 75. equity cases, jurisdiction over, 76. foreclosure, jurisdiction over, 76. title to land, jurisdiction over, 77. habeas corpus, jurisdiction over, 78. jurisdiction of all appeals unless otherwise provided, 79. decisions govern appellate court, 79. transfer of appeal by, is final, 79. transfer of cases to, 79. 30 — App. Pkactiok. 466 INDEX. [JSe/erences are to Sections.} SUPREME COTJUT— Continued. can not control decision of appellate court, 80. publication and authority of opinions, 253. power to issue injunctions and restraining orders, 259, 260. may issue writ of mandamus, 262. acts necessary to perfect appeal compelled, 264. how far controlled by earlier decisions, 291. SUPREME COURT LIBRARY, lawyers privileged to use, 186. SURETIES, on bond in term appeal approved by the court, 91, 175. on bond in interlocutory appeal, bow approved, 92. bound by defective appeal bond, 174, 272. on bond for appeal in decedent's estate, 175. on bond for supersedeas approved by the clerk, 175. on bond in receivership case approved by the court or judge, 175. waiver of approval, 175. how far released by abandonment of appeal, 272. liability on appeal bond and cost bond, 272. SURPRISE, what is cause for new trial, 42. T TEMPORARY INJUNCTION, no appeal from refusal to grant, 86. TENANT, See Landlord and Tenant. TERMS, of supreme and appellate courts, 57. TERM APPEAL, definition of, 91. when and how may be taken, 91. appeal from injunction in term, when perfected, 86. approval of appeal bond, 91, 175. appeal from interlocutory order must be, when, 92, not allowed in criminal cases, 98, 168. at what term may be taken, 102. time allowed for perfecting, 102. vacation appeal taken after abandonment of, 91, 102. co-parties need not be joined as appellants, 147. * effect of co-party's failure to appear, 148. INDEX. 467 IBeferences are to Sections. "^ TERM k^VEkh— Continued. notice is unnecessary, 165. filing appeal bond a necessary part of taking, 169. effect of abandonment on liability of sureties for costs, 272. TERRITORIAL JURISDICTION, supreme and appellate courts, 56. THEORY, of pleading determined, how, 288. parties must adhere to trial court theory, 288. TIME, allowance for taking different appeals, 14, 101-105. computation of time for filing bill of exceptions, 32. may be allowed for preparation of bill of exceptions, 33. for appealing in receivership case, 83, 108. diligence required to obtain extension of, 97, 101, 104,, 107. extension of time for appealing in decedents' estates, 97, 104. accident, fraud or excusable mistake cause for extending, 101, 107. extension foj: perfecting ordinary appeal, 101, 107. for appealing can not be extended by agreement, 101. for appealing from what is calculated, 101. for appealing in criminal case, 101, 108. for appealing in ordinary case, 101. for perfecting term appeal, 102. for appealing in decedent's estate, 104. for appealing from interlocutory order, 105. manner of computing time for taking an appeal, 106. statutory allowance for appealing is jurisdictional, 107. does not run against persons under legal disabilities, 109. part of appellants under legal disabilities may appeal after disabilities are removed, 109, allowance for service of notice, 160. computation of time for filing brief, 179. TITLE TO REAL ESTATE, See Real Estatb. TORT, bow error in assessment of damages is questioned in case of, 47. TRANSCRIPT, can not be aided by any outside matter, 4, 122, 208, amendnients must be made by the clerk, 5, 117. direction by appellant what shall contain, 10, 115. must be corrected before filing, 11, 117. pages and lines must be numbered, 12, 118, 225. 468 INDEX. IBeferences are to Sections.'] TRANSCRIPT— Continued. time and manner of filing, 14, 121. correction by writ of certiorari, 22, 210. must shiow entry of judgment, 82, 116. filed within ninety days in appeal involving decedent's estate, 97, 104. filed within sixty days in term appeal, 91, 102. filed within time allowed for appealing, 107. filed in criminal cases, when, 108. manner of ordering for an appeal, 115. prepayment of fees not required in criminal case, 115 preparation and form, 116. authentication of, 117. defects can not be supplied by agreement, 117, 208. marginal notes must be made on, 119. manner of filing appeal, 121. errors relied on must be aflSrmatively shown by, 122. need not show matters of judicial knowledge, 123. assignment of errors written on before it is filed, 130. , filed within sixty days when notice is serve4 below, 154. decided case not withdrawn without special leave, 192, 234. withdrawn for preparation of brief, 192. erroneous statements only corrected by certiorari, 208, 209. rehearing not granted to enable parties to correct, 217, 242. dismissal of appeal for failure to file in time, 224. dismissal of appeal for carelessness in preparation, 225. withdrawal to take second appeal, 234. ■ cost of making, how taxed, 269. TRANSFER, to appellate court determines that constitutional question is not in- volved, 75. from one appellate tribunal to the other, 79. of cases after rehearing has been granted, 246. of cases by appellate court when dissatisfied with earlier decisions, 291. TRIAL, distinction between trial and appeal, 2. by jury, no right to on appeal, 60. TRUST ESTATES, appeal by stays execution without bond, 9, 170. VACATION APPEALS, definition of, 90. when may be taken, 90. INDEX. 46S IBeferences are to Sectipns.l VACATION AVV^AliS— Continued. time allowed for perfecting, 101. after term appeal is abandoned, 102. notice may be served below, 154. abandonment by failure to file transcript within sixty days after notic* is served below, 154. notice from the court above, 155. bond not necessary in taking, 169. VENIEE DB NOVO, ruling on motion assigned as error, 133. VENUE, See Changb of Venub. VERBAL NOTICE, not sufficient in taking appeal, 153. VEEDICT, forms part of the record, 25. contrary to law is cause for new trial, 46. not supported by the evidence is cause for new trial, 46. errors in calculation cause for new trial, 48. VEXATIOUS SUIT, abuse of discretion as to granting stay, 277. VOID JUDGMENT, appeal maintained from, 265, 289. w WAIVEE, of right to appeal, 8, 110-114. notice of appeal may be waived by party entitled thereto, 15, 152, 163, 164. by appearance, 19, 163, 199, 203. failure to discuss a point waives it, 21, 188. right to ask for rehearing may be waived, 23. irregularities in motion for new trial waived, 53. of appeal bond in matter growing out of settlement of estate, 97. consequences of waiving right to appeal, 110. of right to appeal by action to review judgment, 111. accepting benefit of judgment waives right to appeal, 112. of appeal by compromise or release of error, 113. of appeal by fleeing from justice, 114. effect of failure to deny allegation of waiver, 128. failure to except in court below is not, when, 136. 470 INDEX. [Mefereiices are to /Sections.^ ' WAIYEB,— Continued. how defect of parties may be waived, 150. of notice by voluntary appearance, 155. of notice of appeal by appellee, 163. of notice of appeal by co-party, 164. notice in criminal cases, 169. of formal approval of appeal bond, 175. agreement to submit waives notice, 178. appellant's brief within sixty days can not be waived, 179. points not discussed in appellant's first brief, 179. points not discussed in brief, 188. appearance waives right to ask for dismissal, 199. appearance waives objections to appeal, 199. joinder in error waives what, 204. joinder in error is not, when, 205. of right to appeal by receipting judgment, how shown, 211. objections to appeal not waived by appearance, when, 230. of objections by taking steps in appeal, 230. points originally waived not considered on petition for rehearing, 242. of right to petition for rehearing, effect of, 248. what constitutes waiver of error, 255. ■' WEIGHT OF EVIDENCE, judgment not reversed on, 46, 128. temporary injunction not reversed on, 86. consideration of appeal in habeas corpus case, 87. WIFE, See Husband and Wife. WILL, assignment of errors as to matters of fact forbidden, 6, 128. WITHDRAWAL OF TEANSCBIPT, for preparation of brief, 192. permitted for purpose of taking second appeal, 234. WITNESS, affidavit filed with motion for new trial on account of new evidence, 45, 52. abuse of discretion in controlling examination, 281. WRIT, of injunction, 259-261. of mandate, 262. of prohibition, 268. INDEX. 471 [Beferences are to Sections.'^ WRITTEN INSTRUMENTS, insertion in bill of exceptions, 35. appeal from order to execute or to surrender, 84. order to produce, 84. WRITTEN NOTICE, must be given in taking appeal, 153, 158. Whole number of pages, 631. "i ■ <>