•' 
 
 
 
 
 
 
 
 I 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 'P V i 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 A TREATISE 
 
 ON 
 
 Appellate Procedure 
 
 AND 
 
 Trial Practice Incident to Appeals 
 
 BY BYRON K. ELLIOTT 
 
 ii' 
 AND 
 
 . WILLIAM F. ELLIOTT, 
 
 AUTHORS OF "THE WORK OF THE ADVOCATE" AND "A TREA- 
 TISE ON THE LAW OF ROADS AND STREETS." 
 
 INDIANAPOLIS: 
 
 THE BOWEN-MERRILL COMPANY 
 
 i 802.
 
 T 
 
 £92/ 
 
 Entered according to the Act of Congress in the year 1892, by 
 
 The Bowen-Merrill Company, 
 In the Office of the Librarian of Congress at Washington, D. C 
 
 CARLON •! HOLLBNBBCK, EI.KrTr.OTYPED BY 
 
 PBI1 D BINDEJ INDIAN Aim. I- ELECTROTYPE FOUNDRY, 
 
 INIil • INDIANAPOLIS, IND. 
 
 (ii)
 
 PREFACE. 
 
 There seems to be a sort of neutral ground between appel- 
 late procedure and trial court practice which authors do not 
 permanently occupy, although they do transiently enter upon 
 it, so that many matters of procedure lying within this neutral 
 strip are not much considered, and, indeed, are not often 
 noticed. It has seemed to us that appellate procedure can not 
 be properly treated, nor well understood, without combining 
 with it such matters of trial court practice as are incident to 
 appeals. A separation is, we venture to say, practically im- 
 possible, inasmuch as the entire groundwork is laid in the trial 
 court. In truth, the appeal is little else than a continuation 
 of the same cause, although the cause is carried to a different 
 forum. Acting upon the theory indicated, we have treated 
 procedure on appeal and appendant or incidental matters of 
 trial practice as blended in one system. Our effort has been 
 to make a practical treatise that will be of every-day use, and 
 one that will, if it does nothing more, at least supply hints and 
 point the way to authorities which will enable the lawyer to 
 find what he needs in the cases he is called upon to prepare 
 for appeal and to conduct in the appellate tribunals. 
 
 Byron K. Elliott. 
 
 William F. Elliott. 
 Indianapolis , May i, 1892. 
 
 (iii)
 
 TABLE OF CONTENTS. 
 
 PART I. 
 
 APPELLATE TRIBUNALS, JURISDICTION AND PRACTICE. 
 
 $ i. 
 
 CHAPTER I. 
 
 APPELLATE TRIBUNALS. 
 
 Judicial power — Definition. 
 
 Rule where constitution defines 
 the jurisdiction. 
 
 Only judicial duties can be im- 
 posed on courts. 
 
 Courts not required to give opin- 
 ions to the legislature. 
 
 Where the ultimate superior ju- 
 risdiction is vested. 
 
 § 6. Inherent powers of constitutional 
 courts. 
 
 7. Power to frame rules. 
 
 8. Where judicial power resides. 
 
 9. Amplifying jurisdiction. 
 
 10. Influence of the common law. 
 
 11. Supplying statutory omissions 
 
 CHAPTER II. 
 
 APPELLATE JURISDICTION. 
 
 Jurisdiction — Definition. § 19 
 
 Consent can not confer jurisdic- 
 tion of the subject. 20. 
 
 Fictitious cases. 21. 
 
 Appeal defined. 
 
 Appellate jurisdiction defined. 22. 
 
 Appellate jurisdiction one of re- 23. 
 view. 
 18. Jurisdiction for one purpose re- 24. 
 tained for all. 
 
 Statutory mode of review ex- 
 clusive. 
 
 Incidents of appellate jurisdiction. 
 
 Power of appellate tribunals to 
 frame judgments. 
 
 Grant of appellate jurisdiction. 
 
 Determination of the question of 
 the right of appeal. 
 
 Blending of legal and equitable 
 jurisdiction. 
 
 CHAPTER III. 
 
 THE SUPREME COURT. 
 
 § 25. The rank of the Supreme Court. 
 
 26. The repository of appellate juris- 
 
 diction. 
 
 27. Can not be transformed into a 
 
 nisi pritis court. 
 
 § 2S. Mode of procedure. 
 
 29. Trial of questions of fact. 
 
 30. No right to trial by jury on ap- 
 
 peal. 
 
 31. Territorial jurisdiction. 
 
 (v)
 
 TABLE OF CONTEN rS. 
 
 3i- 
 
 37- 
 
 • itutional questions. 
 II (i w constitutional qui 
 
 musl appear. 
 Statutory jurisdiction. 
 Classes of cases taken from the 
 
 jurisdiction of the Supreme 
 
 Court. 
 Incidents of a class go with it. 
 Equity cases. 
 What arc considered equity 
 
 cases 
 
 § 30 ure of liens on property. 
 
 !«.. Title to land — Cases involving. 
 .| 1. Prosecutions for felonj . 
 42. Actions to recover statutory pen- 
 alties. 
 4.3. Municipal ordinances. 
 
 44. Where the principal appellate 
 
 jurisdiction is vested. 
 
 45. Inherent powers. 
 
 (.6. Opinions — Constitutional re- 
 quirements. 
 
 CHAPTER IV. 
 
 THE APPELLATE COl'RT. 
 
 48. 
 50. 
 
 5 1 - 
 
 s-- 
 
 53- 
 
 54- 
 
 55 
 56 
 
 57 
 58 
 
 60 
 
 Jurisdictional clause of the act 
 creating the Appellate Court 
 
 Entire case goes to one court. 
 
 Appellate Court has no jurisdic- 
 tion of constitutional questions. 
 
 No definite system of classifica- 
 tion adopted. 
 Actions originating before a jus- 
 tice of the peace. 
 
 Actions involving title to real 
 estate. 
 
 Amount in controversy before 
 justice of the peace determines 
 jurisdiction. 
 
 Amount in controversy in trial 
 court — General rule. 
 
 Amount — Exceptional cases. 
 
 Jurisdiction as dependent upon 
 amount. 
 
 Mi mey reci >y eries only. 
 
 Effect of the limiting words of 
 the statute. 
 
 Determination of the amount in 
 i ontroversy. 
 
 Effecl of judgment in the I rial 
 court upon the question of the 
 amount in controversy. 
 
 61. Interest and costs which accrue 
 
 subsequent to the appeal. 
 
 62. Remittitur — Effect on question of 
 
 jurisdiction. 
 
 63. Connter-claim as affecting juris- 
 
 diction. 
 
 64. Counter-claim — Change of the 
 
 character of case by. 
 
 65. Actions for the recovery of per- 
 
 sonal property. 
 
 66. Value of property in controversy 
 
 not material. 
 
 67. Exceptional cases involving title 
 
 to personal property. 
 6S. Actions between landlord and 
 tenant. 
 
 69. Rule where title is put in issue. 
 
 70. Decedents' estate s — C 1 a i m s 
 
 against. 
 
 71. Rules of practice. 
 
 72. Supreme Court decisions control. 
 
 73. Transfer of cases. 
 
 74. Disqualifications of one judge — 
 
 Jurisdiction not ousted. 
 
 CHAPTER V. 
 
 wiiai MAY BE APPEALED FROM. 
 
 v 75. Appeal — Right of. 
 
 7''. Appeal is part of the remedy. 
 77. Appellate Jurisdiction conferred 
 
 bv law. 
 
 § 7S. Only judicial questions consid- 
 ered on appeal. 
 79. Appeals lie from judgments or 
 decrees onlv.
 
 TABLE OF CONTENTS. 
 
 <§So. Appeals lie only from final judg- 
 ments — General rule. 
 Si. What is a final judgment. 
 Si. Difference between intermediate 
 decisions and final judgments. 
 
 83. Final judgment disposes of entire 
 
 case. 
 
 84. Object and scope of the rule. 
 
 85. Requisites of a final judgment. 
 
 86. Distinct actions. 
 
 87. Appeal from judgment of review. 
 SS. Order setting aside execution. 
 S9. Removal of case to Federal Court. 
 
 90. Material issues must be deter- 
 
 mined. 
 
 91. Rights of all parties must be ad- 
 
 judicated. 
 
 92. Judgment may be final, although 
 
 an order may be required for 
 its enforcement. 
 
 93. Decree in partition proceeding. 
 
 94. Form of judgment not important. 
 
 95. Independent issues not affecting 
 
 all parties. 
 
 96. Record must show final judg- 
 
 ment. 
 
 $ 97- 
 
 98. 
 
 99. 
 
 102. 
 
 103. 
 104. 
 105. 
 106. 
 107. 
 10S. 
 109. 
 no. 
 
 Limitation of appeals to desig- 
 nated classes of cases controls 
 jurisdiction 
 
 Distinct and independent claims. 
 
 Appeal of part of a cause — Ex- 
 ceptional cases. 
 
 Interlocutory order appointing a 
 receiver. 
 
 Interlocutory order for payment 
 of money. 
 
 Order directing execution of a 
 written instrument. 
 
 Order requiring delivery of prop- 
 erty. 
 
 Order requiring assignment of 
 instruments. 
 
 Order compelling execution of 
 instrument of writing. 
 
 Order granting or denying an 
 injunction. 
 
 Interlocutory order in Habeas 
 Corpus proceedings. 
 
 Effect of an appeal from an inter- 
 locutory order. 
 
 Mode of appealing from inter- 
 locutory orders. 
 
 Void judgments — appeals from. 
 
 CHAPTER VI. 
 
 THE TIME WITHIN WHICH AN APPEAL MAY BE TAKEN. 
 
 § in. Limitation of time is jurisdic- § 
 tional. 
 
 Time can not be enlarged. 
 
 Cases regarded as exceptions — 
 Peculiar features of. 
 
 Time not extended to the party 
 in fault. 
 
 Diligence exacted. 
 
 Petition for leave to appeal after 
 the expiration of the time lim- 
 ited. 
 
 Rule where the delay is caused 
 by the act of the court. 
 
 When the time begins to run. 
 
 Final judgment and entry — 
 Time begins to run from. 
 
 Independent actions. 
 
 When the right of appeal ma- 
 tures. 
 
 112. 
 
 114. 
 
 "5- 
 
 116. 
 
 :iS. 
 119. 
 
 120. 
 
 121. 
 
 122. Computation of time — The be- 
 
 ginning. 
 
 123. Collateral and independent mat- 
 
 ters. 
 
 124. How the date of the final judg- 
 
 ment is ascertained. 
 
 125. Day the judgment is entered 
 
 excluded. 
 
 126. The meaning of the words 
 
 months and years. 
 
 127. Non-judicial days. 
 
 128. The appeal must be fully per- 
 
 fected within the time pre- 
 scribed. 
 
 129. Bar, by limitation, of part of the 
 
 appellants. 
 
 130. Parties under disabilities.
 
 Vlll 
 
 TABLE OF CONTENTS. 
 
 $ '3 1 - 
 
 «34- 
 
 ' js- 
 
 ■ [6 
 
 '37- 
 138. 
 
 i39- 
 1 i" 
 141. 
 
 142. 
 
 «43- 
 »44- 
 
 M.v 
 
 146. 
 
 147. 
 
 [48. 
 149. 
 150. 
 
 '5 1 
 
 CHAPTER VI 
 PAR 1 IES. 
 
 Right of appeal generally. $ 153. 
 
 Only parties or privies can ap- 
 peal — General rule. 154. 
 
 Appealable interest. 
 
 Cases in which there is no ap- 155. 
 pealable interest. 
 
 tantial interest requisite. 156. 
 
 p1 ional eases. 
 
 Succession — Substitution. 157. 
 
 Joint parties. 
 
 Co-parties generally. 15S. 
 
 Ne< essarv parties. 
 
 Parties to the record not always 159. 
 parties to the judgment. 
 
 Persons not affected by the ap- 160. 
 peal not necessary parties. 
 
 Rule requiring necessary parties 161. 
 not technical. 
 
 Notice to co-parties jurisdic- 162. 
 
 tional. 
 
 Failure to give notice to co- 163. 
 
 parties — Waiver of objection. 
 
 Waiver of notice. 164. 
 
 Successful party can not prose- 
 cute an appeal. 165. 
 
 Actual controversy must exist. 
 
 Suit for review cuts off appeal. 166. 
 
 Waiver and estoppel by accept- 167. 
 
 ing benefit of judgment ap- 
 pealed from. 168. 
 
 Exceptions to the general rule. 
 
 Payment by defendanl not a 169. 
 waiver nor an estoppel. 
 
 Against whom an appeal may 
 be prosecuted. 
 
 Appellees — Who should be — 
 General rules. 
 
 Persons united in interest — 
 Rights of. 
 
 How persons originally co-par- 
 ties may become adversaries. 
 
 Termination or change of inter- 
 est—Effect of. 
 
 Influence of the chancery ele- 
 ment of code procedure. 
 
 Relation of parties in trial court 
 generally continues on appeal. 
 
 A p pealable interest — H o w 
 shown. 
 
 Effect of change of the positions 
 of parties. 
 
 Within what time parties must 
 be brought in. 
 
 Effect of the appeal upon co- 
 parties who decline to join. 
 
 Effect of notice to one who is a 
 party but not a co-party. 
 
 Death of party before appeal — 
 Effect of. 
 
 Death of party after the appeal. 
 
 Death of one of several appel- 
 lants — Effect of. 
 
 Appeals by and against repre- 
 sentatives and privies. 
 
 Abatement by death. 
 
 CHAPTER VIII. 
 
 PROCESS. 
 
 § 170. Notice — Object of — Sufficiency. § 17S 
 
 171. Test of sufficiency. 
 
 1 7 j . Written notice required. 
 
 17;. \ >ential to jurisdiction. 
 
 171. Time where there is no fixed rule 
 
 must be reasonable. 
 
 17;. Notice not given in time when 
 ineffective — Waiver. 
 
 [76 I'pon whom process may be 
 served. 
 
 1 77. Service on the attorney of record. 
 
 Service on one of several attor- 
 neys. 
 
 179. Proof of service. 
 
 180. Filing of notice and proof of 
 
 service. 
 
 151. Service of notice on co-parties. 
 
 152. Objections to process. 
 
 153. Constructive notice. 
 
 154. Proof of publication. 
 
 Amendment of the proof of no- 
 tic.-.
 
 TABLE OF CONTENTS. 
 
 IX 
 
 CHAPTER IX. 
 
 THE RECORD AND IK AN SCRIPT. 
 
 1S6. Appeals are tried by the record. § 
 187. Record can not be made by 
 
 agreement. 
 iSS. Remedying detects in the tran- 
 script by agreement. 
 
 189. The difference between the rec- 
 
 ord and the transcript. 
 
 190. The record of the trial court. 
 
 191. Direct and collateral motions. 
 
 192. Adding to the intrinsic record 
 
 by special order. 
 
 193. Special cases — Default, ques- 
 
 tions upon instructions. 
 
 194. The record on appeal. 
 
 195. Transcript — Requisites of. 
 
 [96. What the transcript should con- 
 tain — Generally. 
 
 1^7. Independent cases can not be 
 included in one transcript. 
 
 [98. Matters embraced in an appeal. 
 
 199. Practice where transcript con- 
 
 tains improper matter. 
 
 200. Directions to the clerk — Pre- 
 
 cipe. 
 Jin . Authentication of the transcript. 
 
 202. Constituent parts of the record 
 
 as prescribed by the statute. 
 
 203. Authority of the appellate tri- 
 
 bunal over the transcript. 
 
 204. Marginal notes. 
 
 CHAPTER 
 
 CORRECTING AND AMENDING THE 
 
 205. The record below and the rec- § 2 
 
 ord on appeal. 
 
 206. Amendments and corrections of 
 
 the trial court record. 2 
 
 207. Effect of an amendment of the 
 
 record of the trial court. 2 
 
 20S. Amendments not allowed after 2 
 the decision on appeal. 
 
 209. Entries nunc pro tunc. 2 
 
 210. The application to correct the 2 
 
 trial court record. 
 
 211. By whom the motion may be 2 
 
 made. 
 
 212. Notice of the motion. 
 
 213. Evidence on the heaiing of the 
 
 motion. 
 
 X. 
 
 RECORD AND TRANSCRIPT. 
 
 14. Appeal from the ruling on ap- 
 
 plication for nunc pro tunc 
 entry. 
 
 15. Presenting the ruling on ap- 
 
 peal. 
 
 16. Certiorari . 
 
 17. Duty of party to apply for cer- 
 
 tiorari. 
 iS. Who may obtain a certiorari. 
 
 19. Time of making the applica- 
 
 tion. 
 
 20. Requisites of an application for 
 
 a certiorari . 
 
 21. Notice of the application. 
 
 22. Submitting the motion for hear- 
 
 CHAPTER XI. 
 
 AGREED CASE. 
 
 § 223. Agreed cases — Jurisdiction. 
 
 224. Agreed statement of facts does 
 
 not make an agreed case. 
 
 225. The distinctive features of an 
 
 agreed case. 
 
 226. No presumptions, indulged in 
 
 favor of the judgment of the 
 trial court. 
 
 227. The affidavit. 
 
 22S. Requisites of the statement of 
 facts. 
 
 229. Office of the statement of facts. 
 
 230. Effect of the statement. 
 
 231. Mistake in the statement of 
 
 fact-. 
 
 232. The record.
 
 TABLE I >F CON II NTS. 
 
 CHAPTER XII. 
 
 *3« 
 237 
 
 RESERVED ' ^ 
 
 Object of the statute. § 239. 
 
 The case must be made up un- 
 der the statute. 
 
 Fying the court of the in- 240. 
 
 icnti< mi to res< rve questions. 241. 
 
 ( )nl v questions of law can be re- 242. 
 Berved. 
 
 On what rulings questions may 243. 
 be 1 ' sei -\ ed. 
 
 Questions of fad musl be ex- 244. 
 eluded by the record. 
 
 Ol LAW. 
 
 Exceptions to the rulings upon 
 which questions are reserved 
 sary. 
 
 Bill of ex( eptions required. 
 
 Office of the bill of exceptions. 
 
 A motion for new trial neces- 
 sary. 
 
 Appeal before final judgment 
 not authorized. 
 
 Supersedeas. 
 
 CHAPTER XIII. 
 
 MODES "I APPEAL IN CIVIL ACTIONS. 
 . The different modes of appeal. § 250. Appeal after term 
 240. Appeals in term. 251. 
 
 247. Requisites of an appeal in term. 252. 
 
 248. A bond essential to an appeal 253. 
 
 in term. 
 240. Ineffectual attempt to appeal in 
 term. 
 
 Classes of appeals after term. 
 Civil actions — Definition. 
 What cases are appealable as 
 civil actions. 
 
 CHAPTER XIV. 
 
 APPEALS IN MATTERS CONNECTED WITH DECEDENTS' ESTATES. 
 
 S54. The special statute does not § 261. Time for appealing. 
 
 create an entirely independ- 
 ent system. 
 What cases are governed by the 
 statute respecting decedents' 
 
 :tCS. 
 
 Cases held not to be within the 
 special statute. 
 
 Cases within the statute. 
 
 The conflict in the decisions. 
 
 Construction of the statute. 
 260. Effect of the construction sug- 
 gested. 
 
 256. 
 
 257. 
 
 258. 
 
 262. What the appellant must do to 
 
 perfect the appeal. 
 
 263. Extension of time. 
 
 264. Steps essential to secure an ex- 
 
 tension of time. 
 
 265. Notice of the application for an 
 
 extension of time. 
 
 266. Briefs on the application. 
 
 267. Bond must be filed within the 
 
 time limited. 
 
 268. Intermediate decisions and in- 
 
 terlocutory orders. 
 
 CHAPTER XV. 
 
 Mil \I.S IN CRIMINAL CASES. 
 
 4 209. Statutory remedy exclu 
 
 270. Appeal8 can not be taken under 
 
 the statute providing for ap- 
 peals in civil actions. 
 
 271. Classes of appi 
 
 § 272. Appeals by the State. 
 
 273. When an appeal will not lie from 
 
 a denial of a motion in arrest. 
 
 27 4. 'The State can present only ques- 
 
 tions of law.
 
 TABLE OF CONTENTS. 
 
 XI 
 
 4 275- 
 276. 
 
 277. 
 
 27S. 
 
 279. 
 280. 
 281. 
 282. 
 283. 
 
 284. 
 
 2S5. 
 2S6. 
 
 Preparation of the record. 
 
 Bill of exceptions — When nec- 
 essary. 
 
 Exceptions must be reserved — 
 Motion for new trial not re- 
 quired. 
 
 The State has no general right 
 of appeal. 
 
 How questions of law may arise. 
 
 What the record must show. 
 
 Defective record. 
 
 The initial step — Notice. 
 
 Notice is merely one step to- 
 wards perfecting the appeal. 
 
 Time within which the State 
 must perfect the appeal. 
 
 Time — Waiver. 
 
 Appeal by defendant. 
 
 § 2S7. Defendants given a general right 
 
 of appeal — What must be done 
 to perfect an appeal. 
 2SS. Appeal by one of several de- 
 fendants. 
 
 289. Waiver of the right of appeal. 
 
 290. Waiver of errors. 
 
 291. Presumptions. 
 
 292. Record must show prejudicial 
 
 error. 
 
 293. Objections must be made in the 
 
 trial court. 
 
 294. The record. 
 
 2915. Bill of exceptions — When nec- 
 essary. 
 
 296. The bill of exceptions — Matters 
 
 of practice. 
 
 297. Appeal does not vacate the judg- 
 
 ment. 
 
 295. Effect of an appeal by the State. 
 
 CHAPTER XVI. 
 
 THE ASSIGNMENT OF ERRORS. 
 
 § 299. 
 300. 
 301. 
 302. 
 
 3°3- 
 3°4- 
 
 3°5- 
 
 306. 
 
 3°7- 
 308. 
 
 3°9' 
 310 
 
 The office and form of the as- 
 signment of errors. 
 The assignment of errors is the 
 
 complaint of the appellee. 
 The assignment of errors pre- 
 sents questions of law. 
 Leave to amend may precede 
 
 the assignment of errors. 
 Assignment of errors essential 
 
 to complete jurisdiction. 
 Relief where failure to assign 
 errors is caused by accident 
 or fraud. 
 Preliminary steps may precede 
 the assignment of error in ex- 
 ceptional cases. 
 Specifications of error. 
 Statutory provisions. 
 Concerning the rule that the as- 
 signment shall be specific. 
 Each specification must be com- 
 plete in itself. 
 Appeals from the Marion Supe- 
 rior Court. 
 
 § 3 11 
 
 312 
 
 3 J 3 
 3 X 4 
 
 By whom errors must be as- 
 signed. 
 
 Intervenors. 
 
 Incidental issues. 
 
 Only injured parties can assign 
 error. 
 
 315. Parties privies may assign error. 
 
 316. The assignment can not contra- 
 
 dict the record. 
 
 317. A favorable ruling can not be 
 
 assigned as error. 
 31S. Joint assignments. 
 
 319. Exception to the general rule. 
 
 320. Curing defects in the assign- 
 
 ment. 
 
 321. Correcting the assignment ot 
 
 errors as to parties. 
 Naming parties. 
 Exceptions to the rule requiring 
 
 names of parties. 
 Groundwork of the assignment. 
 Distinction between resembling 
 
 classes of ease-. 
 
 322. 
 
 3 2 3- 
 
 3-4- 
 3^5-
 
 TABLE OF CO vTlA is. 
 
 527. 
 330- 
 
 33?- 
 333- 
 334- 
 335- 
 
 337- 
 
 340- 
 
 ifications of error defective § 341. 
 becau neral. 
 
 ling of the rule requiring 342. 
 ignments. 343- 
 
 Errors respecting jurisdiction of 
 
 the person. 344. 
 
 Defective trial court process. 345. 
 
 Application to trial court where 
 service is defecth e. 
 The difference between cases 347. 
 
 where there is no jurisdiction 
 
 and cases where the notice is 34S. 
 
 1 five. 
 
 Cases where is no service. 349. 
 
 Writs running beyond the term. 
 Judgments by default. 350. 
 
 Failure to obey a rule to plead. 
 Ruling6 on pleadings — Gener- 351. 
 ally. 
 
 Rulings on demurrers. 352. 
 
 Interrogatories to parties. 
 Habeas corpus cases. ^S3- 
 
 Identifying the ruling com- 
 plained of. 
 
 ions to the mode of im- 
 paneling the jurv. 
 
 Rulings on verdicts. 
 
 Specifications in cases of rulings 
 on verdicts. 
 
 Rulings on judgments. 
 
 M 1 »de of objecting to judgn 
 
 Original objections to judg- 
 ments. 
 
 Causes for a new trial not as- 
 signable as error. 
 
 Whal 1 nailers are not assignable 
 as reasons for a new trial. 
 
 What should be made independ- 
 ent specifications of error. 
 
 I nd e pen den t specifications — 
 When proper. 
 
 Specifications of the motion for 
 a new trial. 
 
 Trial where issues of law are 
 undecided. 
 
 Amendment of the assignment 
 of errors. 
 
 CHAPTER XVII. 
 
 APPEAL IiOXDS. 
 
 5 .354- 
 
 353. 
 359- 
 
 
 Power to exact a bond. § 367. 
 
 Nature of appeal bonds. 
 
 'l'ii.' bond is statutory. 368. 
 
 Rule where there is no jurisdic- 369. 
 tion of the matter in which 
 
 the bond is executed. 370. 
 
 The bond is aided by the statute. 371. 
 
 Construction of appeal bonds — 372. 
 
 ( icneral rule. 373. 
 
 R< 1 overy limited by the penalty. 374. 
 si beyond the penalty. 
 
 ibligation of the bond. 375. 
 Mi ide "f executing the bond. 
 
 1 el - ''id. 376. 
 Right of appellee to require a 
 
 well framed and properly exe- 377. 
 
 cuted bond. 378. 
 Authority of trial court to fix 
 
 the penalty and approve the 379. 
 sureti 
 
 the 1 irder of approval. 3S0. 
 
 Demanding a new bond — Prac- 
 tice. 
 
 Estoppel of the sureties. 
 
 By whom the bond should be 
 approved. 
 
 Informal or irregular approvals. 
 
 Approval may be implied. 
 
 Effect of the approval. 
 
 Evidence of filing and approval. 
 
 The bond as essential to the ef- 
 fectiveness of an appeal. 
 
 Bond not ordinarily essential to 
 jurisdiction. 
 
 Appearing without objecting — 
 Waiver. 
 
 Amending defective bonds. 
 
 Motion to dismiss because of 
 I ive bond. 
 
 Promptness required in asking 
 
 leave to amend. 
 Enforcement of the bond.
 
 T A ISLE OF CONTEXTS. 
 
 Xlll 
 
 § 3S1. What will release sureties. 
 3S2. Surety's right of subrogation. 
 
 § 3S3. Measure of recovery. 
 
 CHAPTER XVIII. 
 
 STAY OF PROCEEDINGS — SUPERSEDEAS. 
 
 384. Bond required to secure stay of 
 
 proceedings. 
 38^. Effect of an appeal in term. 
 
 386. Stay by order of appellate tri- 
 
 bunal. 
 
 387. Supersedeas — Definition. 
 
 388. Application for a supersedeas — 
 
 Brief. 
 
 389. Effect of a supersedeas — Gen- 
 
 erally. 
 
 390. Stay obtained by one of several 
 
 appellants — Effect of. 
 
 391. Supersedeas does not confer a 
 
 right to do what decree for- 
 bids. 
 
 392. Effect of a supersedeas upon 
 
 self-executing judgments. 
 
 $ 393 
 
 Effect of a supersedeas where 
 the judgment is self-executing 
 in part. 
 
 394. Duration of the stay in appeals 
 
 from final judgments. 
 
 395. Duration of the stay in appeals 
 
 from interlocutory orders. 
 
 396. Sureties on a supersedeas bond. 
 
 397. No liability where there is no 
 
 injury, and no promise to pay 
 the judgment. 
 39S. Trial court can not control a 
 supersedeas. 
 Setting aside a supersedeas — 
 
 Practice. 
 Motions to dismiss an appeal 
 and motions to vacate a super- 
 sedeas. 
 
 399- 
 
 400. 
 
 CHAPTER XIX. 
 
 PLEADINGS OF THE APPELLEE. 
 
 § 401. Demurrer to the assignment of 
 errors. 
 
 402. Ill-assigned errors disregarded. 
 
 403. Classification of pleas or an- 
 
 swers. 
 
 404. Joinder in error. 
 
 40^. The common joinder admits the 
 record. 
 
 406. Waiver by common joinder. 
 
 407. Special pleas or answers. 
 
 408. What must be specially pleaded. 
 
 409. Election of remedies. 
 
 410. Presenting matter in bar by mo- 
 
 tion. 
 
 411. Verification of the motion. 
 
 412. Notice of the plea or motion. 
 
 413. Demurrer to the special plea. 
 
 414. Reply to the special plea. 
 
 415. Cross-errors. 
 
 § 416. Assignment of cross -errors — 
 When necessary. 
 
 417. Nature of the assignment of 
 
 cross-errors. 
 
 418. Object of the assignment of 
 
 cross-errors. 
 
 419. Effect of the assignment of 
 
 cross-errors. 
 
 420. Groundwork of the assignment 
 
 of cross-errors. 
 
 421. Transcript. 
 
 422. Notice of the assignment of 
 
 cross-errors not required 
 when filed within the time 
 limited. 
 
 423. Time within which cross-errors 
 
 may be assigned. 
 
 424. Answer to the assignment of 
 
 cross-errors not required.
 
 XIV 
 
 TABLE OF CON I EN is. 
 
 § 1-5- 
 1-7 
 
 l-'w. 
 
 43 1 ' 
 
 $ 438. 
 
 439- 
 440. 
 
 44 1 - 
 44-- 
 443- 
 
 444- 
 
 445- 
 
 446. 
 
 447- 
 448. 
 
 CHAPTER XX 
 SUBMISSION. 
 
 Submission by agreement. 
 
 Effect of a submission by 
 ment. 
 
 Rights not waived by an agree- 
 ment submitting the cause. 
 
 Forced submission. 
 
 Submission on call. 
 
 the submission. 
 
 Submission of appeals in term. 
 
 § 432. Nature of the notice required in 
 cases where the appeal is in 
 term. 
 
 433. Submission in cases appealed 
 upon notice under act of 1SS5. 
 
 434. Submission upon the applica- 
 tion of the appellee 
 
 43 v Notice under the act of 1SS5. 
 
 436. Objecting to submission. 
 
 437. Setting aside the submission. 
 
 CHAPTER XXI 
 BRIEFS AND ARGUMENTS. 
 
 Briefs — Definition. 
 
 General frame of the brief. 
 Showing the manner in which 
 
 the questions arise. 
 ' ing the facts. 
 Method of staling the facts. 
 Correcting erroneous state 
 
 ments of 
 Making the points. 
 Showing rulings to be wrong. 
 Statin- propositions of law. 
 Citing authorities. 
 Waiver of preliminary motions 
 
 by filing brief. 
 
 § 449. Time within which the appel- 
 lant's brief must be filed. 
 Brief on cross-errors — Time of 
 
 filing. 
 Appellee's brief on the appel- 
 lant's assignment of errors. 
 Extension of the time for filing 
 
 briefs. 
 Oral arguments. 
 54. Application for oral arguments. 
 4.55. Limitation of oral arguments. 
 (.56. Statement of propositions for 
 
 argument. 
 457. Interchange of points for argu- 
 ment. 
 
 45° ■ 
 45 '■ 
 
 452. 
 
 453- 
 
 CHAPTER XXII. 
 
 THE ORDER OF DOCKETING AND HEARING APPEALS. 
 
 § 464. Cases can not be advanced by 
 agreement. 
 
 465. The application for advancement. 
 
 466. What must precede application. 
 
 467. Notice of the application. 
 
 468. Hearing the motion to advance. 
 1 Questions for decision on a mo- 
 tion to advance. 
 
 § 458. Docketing appeals. 
 
 ptions to the general rule. 
 the transcripl i 
 ally essentia] to jurisdiction. 
 461. Order of hearing. 
 
 Authority of the court to change 
 the order of hearing. 
 463. Advancement of cases. 
 
 CHAPTER XXIII. 
 HAT MAY BE FIRST MADE ON APPEAL. 
 
 § 470. Objections not presented to the $ 471. Objections to the complaint. 
 
 trial court not considered on 
 appeal — General rule. 
 
 472. Assailing a complaint on the 
 assignment of errors.
 
 TABLE OF CONTEXTS. 
 
 XV 
 
 § 473 
 
 474 
 475 
 476 
 
 477 
 
 47S 
 479 
 
 What defects are fatal upon an § 480. 
 original attack on appeal. 
 
 One good paragraph will save 481. 
 
 the complaint. 4S2. 
 
 Judgment by default — Requi- 
 sites of the complaint. 483. 
 
 Answer can not be attacked for 4S4. 
 the first time on appeal. 
 
 Cross - complaint or counter- 485. 
 claim. 
 
 Requisites of a counter-claim. 4S6. 
 
 Reply. 487. 
 
 488. 
 
 The doctrine applicable to an- 
 swers and replies. 
 
 The reason of the rule. 
 
 Rendering judgment on the 
 pleadings. 
 
 Set-off. 
 
 The rule where a bad answer is 
 proved. 
 
 Effect of the rule respecting the 
 proving of a bad answer. 
 
 Effect of proving a bad answer. 
 
 Anomalous cases. 
 
 Criminal cases. 
 
 CHAPTER XXIV. 
 
 HOLDING PARTIES TO TRIAL COURT THEORIES. 
 
 § 489. The cardinal principle. 
 490. Adherence to theory. 
 Illustrative cases. 
 Instances of the application of 
 
 the general doctrine. 
 The rule as applied to cases in- 
 volving constitutional ques- 
 tions. 
 The theory as outlined by the 
 
 pleadings. 
 Requiring adherence to the 
 opening statement. 
 496. The doctrine of election. 
 
 491. 
 492. 
 
 493- 
 
 494- 
 
 495- 
 
 497- 
 49S. 
 
 499- 
 500. 
 
 502. 
 
 5°3- 
 
 Limitations of the rule. 
 
 Exceptions to the rule. 
 
 The rule as affecting jurisdic- 
 tional questions. 
 
 Special cases. 
 
 Nature of jurisdictional ques- 
 tions. 
 
 Original objections to jurisdic- 
 tion. 
 
 Jurisdiction of the subject not 
 the same thing as jurisdiction 
 of the particular case. 
 
 CHAPTER XXV. 
 
 AUXILIARY PROCEEDINGS. 
 
 § 504. Auxiliary power of appellate § 510 Statutory provisions — Injunc- 
 
 tribunals. 
 
 505. The nature of auxiliary juris- 
 
 diction. 
 
 506. The principal classes of auxili- 
 
 ary proceedings. 
 
 507. Appeal must be pending to au- 
 
 thorize the exercise of the 
 auxiliary jurisdiction — Gene- 
 ral rule. 
 
 50S. Exceptions to the rule requiring 
 the transcript to be filed before 
 asking assistance. 
 
 509. The application for assistance. 
 
 tions. 
 
 511. Statutory provisions — Manda- 
 
 mus and prohibition. 
 
 512. Injunctions. 
 
 513. Injunctions — Matters of prac- 
 
 tice. 
 
 514. Mandamus — Power to issue. 
 
 515. Mandamus — Cases in which it 
 
 will not issue. 
 
 516. Mandamus — Cases in which it 
 
 will issue. 
 
 517. Mandamus — Matters of practice. 
 
 518. Prohibition.
 
 TABLE I »! C( INTEN fS. 
 
 CHAPTER II. 
 
 EXERCISE "I DISCRl riONARY POWER, 
 
 Judicial discretion — Definition. § 609. 
 I >iscretionary power. 
 
 ipe of the discretionary 610. 
 
 power. 61 1 . 
 
 600. A question of pure discretion is 612. 
 
 not a question of law. 613. 
 
 Got. Absolute and limited discretion. 614. 
 
 602. Review of rulings professedly 
 
 made in the exercise of discre- 615. 
 
 tionary power. 616. 
 
 ;. Abuse of discretion. 617. 
 
 604. Showing an abuse of discretion. 
 
 605. Refusal to exercise a discretion- 61S. 
 
 arv power. 619. 
 
 606. Time to plead. 620. 
 C07. Allowing amendments to plead- 
 in.;-. 621. 
 
 60S. Abuse of discretion in denying 
 
 amendments. 622. 
 
 Denying negligent parties leave 
 to amend. 
 
 Amendments after verdict. 
 
 Failure of proof. 
 
 Calling a jury. 
 
 Impaneling the jury. 
 
 Decisions upon the qualifica- 
 tions of jurors. 
 
 Mode of trial. 
 
 Conduct of the trial. 
 
 Control of the delivery of evi- 
 dence. 
 
 Examination of witnesses. 
 
 Ordering a view. 
 
 Compulsory examination of the 
 person. 
 
 Discharge of the jury before 
 verdict. 
 
 Timeforfilinghillsof exceptions. 
 
 § 6:3. 
 
 624. 
 625. 
 
 626. 
 
 $ 631 
 
 633- 
 
 CHAPTER III. 
 
 INVITED ERROR, 
 
 The error itself as distinguished 
 from matters of procedure re- 
 quired to make it available. 
 
 Making wrong rulings available 
 as error. 
 
 Conduct of the parties as affect- 
 in- the right to make errors 
 available. 
 
 Procuring an erroneous ruling. 
 
 § 627. Implied invitation to rule er- 
 roneously. 
 62S. Opening the door to the admis- 
 sion of incompetent evidence. 
 
 629. Admission of incompetent evi- 
 
 dence — Effect upon the party 
 who introduces it. 
 
 630. The doctrine of invited error 
 
 founded on the principle of 
 estoppel. 
 
 CHAPTER IV. 
 
 HARMLESS ERROR. 
 
 Difference between decisions af- 
 fe< ting primary rights and de- 
 cisions affecting procedure. 
 
 Error without prejudi< e. 
 
 Right result reached by wrong 
 mode. 
 634. Limitations of the rule that there 
 is no available error where a 
 right result is reached. 
 
 § 635. Uninfluential error. 
 
 636. Nominal damages — Failure to 
 
 assess. 
 
 637. Rulings on demurrer. 
 
 63S. Resorting to the evidence to 
 avoid the effect of a wrong 
 ruling upon demurrer. 
 
 639. Rulings on motions to strike out 
 or reject pleadings.
 
 TABLE OF CONTENTS. 
 
 XIX 
 
 § 640. Pleadings defective in form. 
 
 641. Rulings in admitting and ex- 
 
 cluding evidence. 
 
 642. Instructions — What errors are 
 
 in general regarded as tin in- 
 fluential. 
 
 643. Verdict clearly right on the ev- 
 
 idence, erroneous instructions 
 harmless. 
 
 644. Instructions — Verbal inaccura- 
 
 cies. 
 
 645. Erroneous instructions are gen- 
 
 erally harmless where there is 
 a special verdict. 
 
 § 646. Equity cases — General instruc- 
 tions unnecessary. 
 
 647. Incomplete instructions. 
 
 64S. Instructions — Construction of 
 on appeal. 
 
 C>4<). Erroneous rulings in selecting 
 and impaneling the jury often 
 harmless. 
 
 650. Misconduct of jurors. 
 
 651. Special interrogatories to jury 
 
 — What rulings are harmless, 
 although erroneous. 
 
 652. Erroneous rulings upon ver- 
 
 dicts that are regarded as 
 harmless. 
 
 CHAPTER V. 
 
 PREJUDICIAL 
 
 § 653. To determine whether error is § 
 prejudicial the entire record 
 must be examined. 
 
 654. Rulings wherein prejudicial er- 
 
 ror may exist. 
 
 655. Mistaking the remedy. 
 
 656. Election of remedies — Waiver 
 
 of torts. 
 
 657. Ordinary and extraordinary 
 
 remedies. 
 
 658. Consequences of mistaking the 
 
 remedy — Making the error 
 available. 
 
 659. Parties to the action — Neces- 
 
 sary and proper. 
 
 660. Necessary parties — Illustrative 
 
 cases. 
 
 661. A criterion for determining who 
 
 are necessary parties. 
 
 662. Who should be plaintiffs and who 
 
 defendants — General rule. 
 
 663. Joinder of parties. 
 
 664. A right of action must exist in 
 
 all who join in a complaint. 
 
 665. Pleadings — Motion to make spe- 
 
 cific. 
 
 666. Rulings on demurrer. 
 
 667. A wrong ruling which operates 
 
 to exclude material facts is 
 prejudicial. 
 
 668. Error once effectively saved is 
 
 sufficient. 
 
 669. The' difference between overrul- 
 
 ing and sustaining a demurrer 
 to one of several paragraphs 
 of a pleading. 
 
 670. Rulings in admitting and ex- 
 
 cluding evidence. 
 
 671. Conduct of the trial. 
 
 672. Misconduct of parties and coun- 
 
 sel. 
 
 673. Interrogatories to the jury. 
 
 CHAPTER VI. 
 
 WAIVER. 
 
 $ 674. Available error does not exist § 676. A party does not waive a defect 
 
 where there is an effective or irregularity of which he is 
 
 waiver. excusably ignorant. 
 
 675. The doctrine of waiver. 677. Appearance — Effect of.
 
 XX 
 
 TABLE OF CONTEN fS. 
 
 § 678. Special or qualified appearance. 
 
 679. Waiver ol' objections to the 
 remedy. 
 
 6S0. Waiving objections to plead- 
 ings. 
 
 681 . Failure to demur. 
 
 682. Failure to demand a decision 
 
 upon demurrer. 
 ,. Waiver of objections to decis- 
 ions on demurrer. 
 6S4. Instances of the waiver of pre- 
 liminary objections. 
 I 5. Demurrer to the evidence — 
 
 Waiver of right to jury. 
 686. Introducing evidence after de- 
 murring — Effect of. 
 
 § 6S7. Motion for direction to jury to 
 return a verdict in favor of 
 moving party — Effect of sub- 
 sequently giving evidence. 
 
 6SS. Waiver of objections to plead- 
 ings by demurring to the evi- 
 dence. 
 
 6S9. Effect of a demurrer upon the 
 right to make rulings upon the 
 evidence available. 
 
 690. Waiver as affecting the mode of 
 
 trial. 
 
 691. Rulings respecting procedure on 
 
 the trial — Illustrative cases. 
 
 692. Rulings on the trial — General 
 
 doctrine. 
 
 CHAPTER VII 
 
 CURING ERROR. 
 
 § 693. Origin and nature of the power § 700. 
 to cure error. 
 
 694. Limitations of the power — Ex- 701. 
 
 ceptional cases. 
 
 695. Exercise of the power to cure 702. 
 
 errors. 703. 
 
 696. Asking for time in cases where 
 
 a ruling is changed. 
 
 697. Rulings made during the forma- 704. 
 
 tion of issues. 
 69S. Curing error in the admission 
 
 of evidence by supplementing 705. 
 
 it with evidence making it 706. 
 
 competent. 707. 
 
 699. Proving the same facts by com- 
 petent testimony sometimes 70S. 
 
 obviates the error in admitting 
 
 incompetent evidence. 
 
 Withdrawal of incompetent ev- 
 idence. 
 
 Instructions to disregard incom- 
 petent evidence. 
 
 Exceptional cases. 
 
 Effect of sustaining a motion 
 to strike out incompetent tes- 
 timonv. 
 
 When a party can not withdraw 
 evidence over the objection of 
 his adversary. 
 
 Curing errors in instructions. 
 
 Refusal of instructions. 
 
 Subsequentlvadmittinge vide nee 
 once excluded. 
 
 Miscellaneous instances. 
 
 CHAPTER VIII. 
 
 PR ESUMPTIONS, 
 
 ■ presumptions — What § 712. 
 presumption will be preferred. 
 
 710. Presumption in favor of the pro- 
 
 lings of the trial court. 
 
 711. Nature of the presumption. 713. 
 
 Record susceptible of two con- 
 structions — That which sus- 
 tains the judgment will be 
 preferred. 
 
 Presumptions will not prevail 
 against the record.
 
 TABLE OF CONTEXTS. 
 
 XXI 
 
 § 714. Court and judge. 
 
 715. Jurisdiction of subject — Pre- 
 
 sumption of. 
 
 716. Exception to the general rule — 
 
 Judgment by default. 
 
 717. Presumption of jurisdiction is 
 
 not rebutted by the silence or 
 incompleteness of the record. 
 
 71S. Judgment of trial court is pre- 
 sumed to be properly sup- 
 ported. 
 
 719. Pleadings — Presumption that 
 judgment is within and found- 
 ed on. 
 
 § 720. Presumption that rulings on 
 pleadings were correct. 
 
 721. Rulings on the evidence — Pre- 
 
 sumptions respecting. 
 
 722. Instruction s — Presumptions 
 
 concerning. 
 
 723. Juries and jurors — Presump- 
 
 tions concerning. 
 
 724. Verdicts — Presumptions in aid 
 
 of. 
 
 725. Miscellaneous instances. 
 
 CHAPTER IX. 
 
 $ 726. 
 7 2 7- 
 72S. 
 729. 
 73°- 
 
 73 2 - 
 733- 
 734- 
 
 735- 
 736. 
 
 73S. 
 
 REQUESTS AND OFFERS. 
 
 No ruling or no request, no error. § 739. 
 
 Refusal to rule. 
 
 Implied requests. 740. 
 
 Time for making request. 
 
 A party basing a right on a re- 741. 
 
 quest must himself make it. 
 Request must be affirmatively 742. 
 
 shown. 743. 
 
 Request for a special finding. 744. 
 
 Request for written instructions. 
 Request for an inspection of the 745. 
 
 instructions of the court. 
 Requesting special instructions. 746. 
 Requests where instructions are 
 
 correct as far as they go. 747. 
 
 Request for the submission of 
 
 interrogatories to the jury. 74S. 
 
 Request for a special verdict. 749. 
 
 The practice in requesting spe- 
 cial verdicts. 
 
 Request for inspection and pro- 
 duction of documents. 
 
 When notice to produce not re- 
 quired. 
 
 Offers — General doctrine. 
 
 Offers of oral testimony. 
 
 Showing materiality and rele- 
 vancy. 
 
 Effect of mingling competent 
 with incompetent evidence. 
 
 Offer unaccompanied by inter- 
 rogatory unavailing. 
 
 Offer not required on cross-ex- 
 amination. 
 
 Offer of documentary evidence. 
 
 Repeating offers. 
 
 CHAPTER X. 
 
 MOTIONS FOR JUDGMENT AND INCIDENTAL MATTERS. 
 
 § 755. Distinct causes of action. 
 
 750. Introductory. 
 
 751. Motions for judgment on the 
 
 pleadings. 
 
 752. Special interrogatories to jury — 
 
 Requesting judgment on the 
 answers. 
 
 753. Special verdicts — Motions for 
 
 judgment on. 
 
 754. Effect of moving for judgment. 
 
 756. Motion essential to save ques- 
 
 tions upon special verdicts. 
 
 757. Special finding — Characteristics 
 
 and incidents. 
 75S. The motion for a venire de novo 
 
 — The general doctrine. 
 759. Venire de novo — The Indiana 
 
 rule.
 
 XXII 
 
 TABLE OF CONTENTS. 
 
 § 760. The motion for a venire de novo 
 as applied to a special finding. 
 
 761. Office of the motion for a venire 
 
 762. Time of filing the motion. 
 [. Requisites of the motion. 
 
 764. S p e c ial finding — Motion to 
 
 strike out. 
 
 765. Special finding — Particular facts 
 
 outside of the issues. 
 
 § 766. The difference between cases 
 where only particular facts 
 are outside of the issues and 
 cases where the whole finding 
 is outside. 
 
 767. Finding whollj' outside of the 
 
 issues. 
 
 768. Practice where the judgment 
 
 does not follow the finding or 
 verdict. 
 
 CHAPTER XI. 
 
 OBJECTIONS. 
 
 § 769- 
 770. 
 
 77»- 
 
 77-- 
 773- 
 774- 
 
 775- 
 
 $ 7§3- 
 
 7S4. 
 
 7S.S- 
 786. 
 
 787. 
 
 788. 
 789. 
 
 The difference between objec- 
 tions and exceptions. 
 
 Objections must be specific. 
 
 The grounds of the objection 
 must appear of record. 
 
 Objections must be seasonably 
 interposed. 
 
 The objection must come from 
 the proper party. 
 
 Practice where evidence is com- 
 petent against one party but 
 not against other parties. 
 
 Grounds of objection should all 
 be stated. 
 
 CHAPTER XII. 
 
 § 776. Jurisdictional objections. 
 
 777. Objections to pleadings. 
 
 778. Objecting to jurors. 
 
 779. Specifying objections to evi- 
 dence. 
 
 780. Separating competent from in- 
 competent evidenee. 
 
 7S1. Practice where the question is 
 proper but the answer incom- 
 petent. 
 
 782. Specification of objections to 
 conduct of parties and counsel. 
 
 EXCEPTIONS. 
 
 Nature and office of an excep- § 790 
 
 tion. 
 
 When an exception is required. 
 
 Time of taking exceptions. 
 
 The exception must immediate- 
 ly follow the decision. 
 
 The exception must be addressed 
 to the specific ruling. 
 
 Joint exceptions. 
 
 Exceptions can not be taken to 
 several rulings in gross. 
 
 A party must rely on his own 
 exceptions. 
 
 Excepting to instructions. 
 
 Noting exceptions to instruc- 
 tions. 
 
 Conclusions of law stated on a 
 special finding of facts. 
 
 794. Specifying error on exceptions 
 
 to conclusions of law. 
 
 795. Ruling on a motion for new trial. 
 
 796. Questioning judgments. 
 
 791. 
 
 792. 
 
 793- 
 
 CHAPTER XIII. 
 BILLS OF EXCEPTIONS. 
 
 § 797. Object of a bill of exceptions. § 799. By whom the bill should be 
 •798. The duty of settling a bill of ex- signed. 
 
 ceptions is judicial. 800. Time within which the bill may 
 
 be signed.
 
 TABLE OF CONTEXTS. 
 
 § Soi. 
 
 S02. 
 S03. 
 
 804. 
 S05. 
 S06. 
 S07. 
 
 80S. 
 S09. 
 
 810. 
 Sn. 
 
 812. 
 S13. 
 
 S14. 
 Sl.v 
 
 816. 
 
 §827. 
 S2S. 
 S29. 
 
 S30. 
 831. 
 S32. 
 833- 
 834- 
 
 835- 
 
 836. 
 837- 
 
 838. 
 
 839- 
 
 How the order extending time 
 must be shown. 
 
 Presenting the bill to the judge. 
 
 Time can not be extended after 
 the close of the term. 
 
 Bills filed in term. 
 
 Filing after term. 
 
 Form of the bill. 
 
 Requisites of the bill — General 
 doctrine. 
 
 Stating the exceptions. 
 
 Facts on which exceptions are 
 based must be stated. 
 
 Duty of the trial judge. 
 
 Effect of the statements and re- 
 citals of the bill. 
 
 Making error apparent. 
 
 Rulings made in the formation 
 of issues. 
 
 Collateral motions. 
 
 Recitals in direct motions. 
 
 Rejected pleadings. 
 
 § S17. Instruments that may be 
 brought into the record by a 
 bill of exceptions. 
 81S. Making written instruments 
 part of the bill by reference — 
 General rule. 
 
 819. Instruments once properly in 
 
 the record need not be copied 
 in the bill. 
 
 820. Oral evidence. 
 
 821. Stenographer's reportof the evi- 
 
 dence. 
 
 522. Making stenographer's report 
 
 part of the bill. 
 
 523. The rule where all the evidence 
 
 must be in the record. 
 
 524. The general recital not always 
 
 controlling. 
 
 525. Amendment of bills of excep- 
 
 tions. 
 826. Application for the order to 
 amend. 
 
 CHAPTER XIV 
 
 PRESENTING AN OPPORTUNITY FOR REVIEW. 
 
 The theoretical doctrine. 
 
 The practical doctrine. 
 
 The mode of presenting ques- 
 tions for review. 
 
 The office of a motion for a new 
 trial. 
 
 The office of the motion on ap- 
 peal. 
 
 The motion can not precede the 
 decision. 
 
 The motion not cut off by entry 
 of judgment. 
 
 Motion in arrest of judgment 
 cuts off a motion for a new 
 trial. 
 
 All causes must be embraced in 
 one motion. 
 
 Successive motions. 
 
 Exceptions to the rule forbid- 
 ding successive motions. 
 
 Different classes of motions. 
 
 Joint motions. 
 
 § 840 
 
 Requisites of the motion — Gen- 
 erally. 
 
 Time of filing. 
 
 Where filed. 
 
 The motion ordinarily goes to 
 the whole case. 
 
 844. Exceptions to the general rule. 
 
 845. The motion should be complete 
 
 in itself. 
 
 Rulings on the pleadings and 
 objections to the form of the 
 judgment not assignable as 
 causes for a new trial. 
 
 Inconsistency between the an- 
 swers of the jury to interroga- 
 tories and the general verdict. 
 
 Irregularity in the proceedings 
 of the court. 
 
 Irregularity of the jury or pre- 
 vailing party. 
 
 Abuse of discretion. 
 
 Misconduct of the jury or pre- 
 vailing party. 
 
 S41. 
 
 S 4 2. 
 §43- 
 
 846. 
 
 847. 
 
 84S. 
 S49. 
 
 850. 
 
 851.
 
 XXIV 
 
 TABLE OF CRN'TKM S. 
 
 Accident or surprise. 
 
 Errors of law occurring on the 
 trial. 
 
 Verdict or finding contrary to 
 law or not sustained by suffi- 
 cient evid< 
 S55. Damages — Questioning the 
 amount of recovery. 
 
 § 852- 
 853- 
 
 8S4- 
 
 1 gjes in actions in tort and 
 damages in actions on con- 
 tract. 
 
 S57. Newly discovered evidence. 
 
 85S. Counter-affidavits. 
 
 S59. Verification of the motion. 
 
 PART III. 
 
 FORMS. 
 
 CHAPTER I. 
 
 FORMS VSF.n IN TRIAL PRACTICE INCIDENT TO APPEALS. 
 
 § S60. Caption — Title of cause — Sig- 
 nature. 
 
 861. Agreed case. 
 
 862. Reserved questions of law — Bill 
 
 of exceptions. 
 
 863. Questions of law arising on the 
 
 instructions — Bill of excep- 
 tions. 
 
 864. Motion to dismiss appeal — Bill 
 
 of exceptions. 
 
 865. Motion to make more specific — 
 
 Bill of exceptions. 
 
 866. Challenge of juror — Bill of ex- 
 
 ceptions. 
 
 867. I5ill of exceptions on the over- 
 
 ruling of a motion for a new 
 trial. 
 
 § 868. Misconduct of jurors — Bill of 
 exceptions. 
 
 869. Appeal in term — Record entry. 
 
 870. Appeal bond. 
 
 87 1. Appeal after term — Notice be- 
 
 low to party. 
 
 872. Appeal after term — Notice to 
 
 the clerk. 
 
 873. Praecipe for transcript. 
 
 874. Notice to co-party. 
 
 875. Transcript — Formal parts. 
 
 876. Transcript — Certificate of clerk 
 
 where entire recordis ordered. 
 
 877. Transcript — Certificate where 
 
 special directions are given. 
 
 CHAPTER II. 
 
 FORMS USED IN APPELLATE PRACTICE. 
 
 § 878. The assignment of errors — Or- 
 dinary form. 
 S79. The assignment of errors — Ap- 
 peal from the Marion Superior 
 Court. 
 
 § SSo. Failure to notify co-parties — 
 Motion to dismiss. 
 S81. Acceptance of payment of judg- 
 ment — Motion to dismiss.
 
 TABLE OF CONTENTS. 
 
 8S2. Failure to perfect the appeal 
 within the time prescribed — 
 Motion to dismiss. 
 ' S83. Common joinder. 
 
 8S4. Application for leave to amend 
 the assignment of errors. 
 
 SS5. Assignment of cross-errors. 
 
 886. Petition for certiorari — Omis- 
 sion of parts of record. 
 
 8S7. Petition for certiorari — Change 
 of record bv nunc pro tunc 
 entry. 
 
 § 88S. Petition to advance — Matter of 
 public interest. 
 
 889. Petition to advance — Matter of 
 
 private concern. 
 
 890. Motion to vacate supersedeas. 
 
 891. Notice of motion. 
 
 892. Motion to reinstate. 
 
 593. Petition for rehearing. 
 
 594. Motion to modify mandate.
 
 TABLE OF CASES. 
 
 ^References are to Pages.] 
 
 Abbe v. Mair, 14 Cal. 210, 396, 
 
 Abbott v. Chaffee, S3 Mich. 256, 
 v. Dwinnell, 74 Wis. 514, 
 v. Johnson, 47 Wis. 239, 
 v. Morrissette, 46 Minn. 10, 
 v. Union, etc., Co., 127 Ind. 70, 
 v. Zeigler, 9 Ind. 511, 
 Abdill v. Abdill, 26 Ind. 287 
 
 v. Abdill, 33 Ind. 460, 
 Abell v. Cross, 17 la. 17, 
 
 v. Riddle, 75 Ind. 345, 
 Ableman v. Booth, 11 Wis. 499, 
 Abney v. Kingsland, 10 Ala. 355, 
 
 671 
 
 73§ 
 
 574 
 
 6 73 
 
 581 
 
 599 
 
 65, 7i 
 
 282, 284 
 
 507, 609 
 
 663 
 
 565, 60S 
 
 217 
 
 699, 
 
 700 
 
 277 
 
 493 
 678 
 217 
 677 
 769 
 
 Abraham v. Chase, 11 Ind. 513, 
 Abrams v. Lee, 14 111. 167, 
 
 v. Smith, S Blackf. 95, 
 Abshire v. State, 52 Ind. 99, 
 
 v. Williams, 76 Ind. 97, 
 Acheson v. Sutliff, 18 Ohio, 122, 
 Achey v. State, 64 Ind. 56, 527, 579, 619 
 Acker v. Alexander, etc., Co., 84 
 
 Va. 648, 3° 8 
 
 Acton v. Dooley, 16 Mo. App. 441, 5S2 
 Adair v. Morgentheim, 114 Ind. 303, 48S, 
 
 595 
 Adams v. Beem, 4 Blackf. 128, 
 
 v. Crosby, 4S Ind. 153, 
 
 v. Davis, 109 Ind. 10, 
 
 v. Fox, 40 N. Y. 577, 
 
 v. Gowan, S9 Ind. 358, 
 
 v. Harrington, 114 Ind. 66, 
 
 v. Higgins (Fla.), 1 So. Rep. 
 
 349 
 698 
 402 
 601 
 647 
 H7 
 
 3 2I > 
 
 606, 
 
 Holmes, 4S Ind. 299, 
 Irving Nat. Bank, 116 N.Y. 
 
 Jeffries, 12 Ohio, 253, 
 Kennedy, 90 Ind. 318, 
 Lamson, etc., Co., 59 Hun, 
 
 178 
 692 
 
 729 
 
 21 
 
 640 
 
 v. La Rose, 75 Ind. 47 
 
 v. Lee, S2 Ind. 587, 
 v. Lockwood, 30 Kan. 
 v. Sage, 2S N. Y. 103 
 v. Secor, 6 Kan. 542, 
 
 1, 
 75 1 
 
 73 6 
 
 296, 725, 
 
 752 
 
 768 
 
 53 6 
 733 
 587 
 635 
 
 255. 
 
 Adams v. Smith, 6 Dak. 94, 
 
 v. State, 65 Ind. 565, 
 
 v. State, 87 Ind. 573, 
 
 v. State, 25 Ohio St. 584, 
 
 v. Thompson, 18 Neb. 541, 317, 
 
 v. Town, 3 Cal. 247, 
 
 v. Wilson, 60 Ind. 560, 52, 
 
 v. Woods, S Cal. 306, 4, 
 
 Adamson's Appeal, no Pa. St. 459, 
 
 Adams County v. Hunter, 7S la. 
 
 328, 39 1 . 
 
 Adams Express Co. v. Pollock, 12 
 
 Ohio St. 618, 
 Addersonv. Marshall, 7 Mont.28S, 
 Addison v. State, 48 Ala. 478, 
 Addleman v. Erwin, 6 Ind. 494, 
 Addy v. Janesville, 70 Wis. 401, 
 Adler v. Sewell, 29 Ind. 598, 
 /Ernes v. Chappel, 28 Ind. 469, 
 ^Etna Ins. Co. v. Aldrich, 38 Wis. 
 
 107, 
 /Etna Ins. Co. v. Baker, 71 Ind. 102, 
 ^Etna, etc., Co. v. Finch, 84 Ind. 
 301, 4SS, 
 
 Agate v. Morrison, S4 N. Y. 672, 
 Agnew v. Adams, 26 S. C. 101, 
 Ahern v. McGreary, 79 Cal. 44, 
 
 v. McGeary, 79 Cal. 250, 
 Ahrens v. State Bank, 3 S. C.401, 
 Aiken v. Bruen, 21 Ind. 137, 524, 
 v. Osing, 94 Ind. 507, 
 v. Short, 1 H. &N. 210, 
 Aimes v. Chappel, 2S Ind. 469, 
 Akerly v. Vilas, 24 Wis. 165, 
 Alabama, etc., Co. v. Frazier (Ala.), 
 
 9 So. Rep. 303, 
 Alabama Gold, etc., Co. v. Nichols, 
 
 109 U. S. 232, 
 Alabama State Bar Asso., Ex f arte 
 
 (Ala.), 8 So. Rep. 76S, 
 Albere v. Kingsland, 13 N.Y. Sup. 
 
 794- 
 Albert v. State, 65 Ind. 413, 589, 
 Albertson v. State, 95 Ind. 370 
 
 v. Williams, 23 Ind. 612, 
 Albion, etc., Co. v. Richmond, etc., 
 
 Co., 19 Nev. 225, 
 
 (xxvii) 
 
 490 
 690 
 640 
 746 
 326 
 
 4 
 781 
 
 I4 2 
 
 79 
 
 412 
 
 693 
 155 
 537 
 
 782 
 
 ^ 
 354 
 248 
 
 3i8 
 
 597 
 
 596 
 
 535 
 
 6 43 
 
 269 
 
 63S 
 693 
 
 659 
 
 5 1 
 439 
 
 596 
 592 
 
 672 
 630 
 
 5'8
 
 XXV111 
 
 TABLE OF CASES. 
 
 [References a 
 A 11 nun, Town of, v. Hetrick, 90 Ind. 
 
 545. 580 
 
 Albrecht v. C. C. Foster Lumber 
 
 Co. (Ind.). 26 N. E. Rep. 157. 17. 31 
 Alcorn v. Morgan, 77 Ind. [84, 743 
 
 Alexander v. Alexander, 104 V Y. 
 
 643, 126, 350 
 
 \ Benn< tt, 60 N. Y. 204, 
 v. Byrd, 85 Ya. 690, 
 v. Dunn, 5 Ind. I 22, 
 v. Feary, 9 Ind. 481, 
 v. I lumber, 86 K.v. .565, 
 v. Northwestern, etc., Univer- 
 sity, 57 Ind. 466, 
 
 \ . ( >shkosh, 33 Wis. 277, 
 v. Steele, 84 Ala. 7,7,2, 
 
 v. Stewart. 23 Ark. 18, 
 
 Alexandria, etc. ,v. McVeigh,84 Va. 
 
 4 1 - 
 
 v. Painter, ilnd. A pp. 5S7, 
 
 Alger v. Merritt, 16 la. 1:1, 
 Alkan v. New Hampshire, etc., Co., 
 
 53 Wis. 136, 
 All v. Barnwell, 29 So. Car. 161, 7 
 
 S. E. Rep. 58, 
 Alleman v. Wheeler, 101 Ind. 141, 
 Allen v. Aldrich, 29 N. H. 63, 
 v. Allen. So Ala. 154, 
 v. Bond, 1 12 Ind. 523, 
 v. Cerro Gordo Co.. 34 Ala. 54, 
 v. Claybrook, 58 Mo. 124, 
 v. Commonwealth, 86 Ky. 642. 
 v. Commonwealth (Ky.), 12 S. 
 W. Rep. 582, 
 
 v. Crary, 10 Wend. 349, 
 Etheridgo, 84 Ga. 550, 
 
 4 
 7S 
 
 672 
 39 1 
 
 269 
 559 
 
 4*3 
 
 1 So 
 
 492 
 5S1 
 
 7S8 
 
 559 
 
 143 
 605 
 
 62 I 
 456 
 
 79 ' 
 62 
 
 483 
 
 120 
 
 560 
 
 54 
 
 560 
 
 v. Gann (Ind.), 29 N. E. Rep., 171 
 
 v. Gillum, 16 Ind. 234, 793 
 
 v. Grider, 24 Ark. 271. 310 
 
 \ . ( 1! iffin, 98 N. C. 120, 56 
 
 v. 1 lostetter, 16 Ind. 15, 62 
 
 \ Mason, 17 111. App. 31S, 639 
 
 v. Randolph, 48 Ind. ^96, 589 
 
 v. Ray. 96 Mo. 542, 155 
 
 v. State, 61 Ga. 166, 579 
 
 v. State. 74 Ind. 210, 296, 297 
 
 v. Strickland, [00 V C. 22;, 146 
 
 v. United States. 22 Ct. oi'Cl. 
 
 300, 489 
 
 Alley v. State. 76 Ind. 94, 764, 7S7 
 
 Allgro v. Duncan, 24 How. Pr.210, 790 
 
 Ailing v. Ward (111.), 24 N. K.Rep. 
 
 r^- 
 
 Wenzel, 133 111. 264, 
 Allis v. Day. i \ Minn. 516, 
 v. Gumberts, 1 Ind. 104, 
 v. Ins. Co., 97 I*. S. 144, 
 Allison v. Gregory (Tex.), 15 S.W 
 Rep. 416, 314 
 
 120 
 488, 560 
 646 
 401 
 573 
 
 re to Pages.] 
 
 Allor v. Auditor, 43 Mich. 76, 2S 
 
 Altmaver v. Metropolitan, etc., Ry. 
 Co., 14 N. Y. Supp. 311, 544 
 
 Amason v. Nash. 19 Ala. 104. 071 
 
 America Central Ins. Co. v. Hatha- 
 way, 43 Kan. 399, 624 
 
 American Express Co. v. Patter- 
 son, 73 Ind. 430, 5S8 
 
 American Ins. Co. v. Butler, 70 
 
 Ind. 1, 4S0 
 
 v. Gallaher, 75 Ind. 168, 774 
 
 v.Gibson, 104 Ind. 336, 287,295. 727 
 
 v. Yearick. 7S Ind. 202, 744 
 
 American Legion v. Rowell, 15 S. 
 W. Rep. 217. 345 
 
 American White Bronze Co. v. 
 Clark, 123 Ind. 230, 217, 783 
 
 Ames v. Howard, 1 Sumnr. 482, 7S8 
 
 v. Lake Superior, etc., Co., 21 
 Minn. 241, 26 
 
 v. New Jersey Franklinite Co., 
 1 Beasley (N. j.), 66, 
 
 Amherst v. Hadlev. 1 Rick. 38, 
 
 Amick v. O'Hara, 6 Blackf. 258, 
 
 Amis v. Myers, 16 How. 492, 
 
 Ammerman v. Crosby, 26 Ind. 451, 
 
 v. State, 9S Ind. 165, 
 Amonett v. Montague, 63 Mo. 201, 
 Amory v. Amory, 91 U. S. 356, 
 
 v. Reilly, 9 Ind. 400, 
 Anderson v. Ackerman, 88 Ind.4Si, 
 
 V. Ames, 6 la. 486, 
 
 v. Anderson, 65 Ind. 196, 
 v. Anderson, 12S Ind. 254, 
 v. Board (Minn.), 48 X.W. Rep. 
 
 1022, 
 
 v. Brown, i) Mo. 646, 
 
 v. Caldwell, 91 Ind. 451, 
 
 v. 1 )onne.ll, 66 Ind. 150, 712, 715, 
 
 v. Dunn, 6 Wheat. 204, 
 
 v. Hathway (Ind.), 30 N. E. 
 
 Rep. , 
 
 v. McDonaldson, ^2 111. 404, 
 v. Market, etc., Bank, 66 How. 
 
 Pr. S, 
 
 v. Mitchell. ^S Ind. ^92, 
 
 v. Neal. 88 Ind. 317.' 36S, 
 
 v. People, 2S 111. App. 317, 
 
 v. Rome, etc., Co., 54 N. Y. 
 
 334. 
 
 v. Sloane, 1 Col. 4S4, 
 v. State, 28 Ind. 22, 
 v. State, 104 Ind. 467, 617, 
 
 v. Weaver. 17 Ind. 223, 
 v. Wilson, 100 Ind. 402, 
 v. Wyant. 77 la. 49S, 
 Anderson Bridge Co. v. Applegate, 
 
 13 In d- 339. 
 
 J 34 
 
 621 
 
 277 
 593 
 76., 
 
 767 
 
 2S2 
 746 
 390 
 665 
 704 
 
 763 
 72S 
 781 
 
 3H 
 
 26 
 7-4 
 
 7 
 
 79 1 
 
 57o 
 
 97 
 
 37o 
 
 iS 
 
 656 
 
 G37 
 
 4 
 623 
 300 
 399 
 597 
 
 697
 
 TABLE OF CASES. 
 
 XXIX 
 
 [References a 
 Anderson, etc., Ass'n v. Thompson, 
 
 8; Ind. 278, 174, 462 
 
 Anderson, etc., Co. v. Thompson, 
 
 88 Ind. 405. 354. 399 
 
 Anderson, City of, v. Neal, S8 Ind. 
 
 3*7. 374 
 
 Andis v. Personett, 10S Ind. 202, 570 
 
 v. Richie, 120 Ind. 138, 781 
 
 Andre v. Frybarger, 70 Ind. 2S0, 628 
 
 Andrews v. Elliott, 6 E. &. B. 338, 424 
 
 v. Hammond, 8 Blackt". 540, 640 
 
 v. Ohio, etc., R. Co., 14 Ind. 169, 156 
 
 v. Runyon, 65 Cal. 629, 572 
 
 v. Steele, 7 C. E. Green (N. 
 
 JO. 47S, 133 
 
 v. United States, 16 Ct. of CI., 
 265, . 127 
 
 Angevine v. Ward, 66 Ind. 460, 229 
 
 Angle v. Speer, 66 Ind. 488, 179 
 
 Anon, iS Abb. Pr. 87, 11S, 270 
 
 Anon, 59 N. Y. 313, 516 
 
 Ansley v. Robinson, 16 Ala. 793, 74 
 Anson v. Blue Ridge, etc., Co., 23 
 
 How. 1, 324 
 
 Antoni v. Wright, 22 Gratt. S33, 28 
 
 App v. State, 90 Ind. 73, 251, 517, 680 
 Apple v. Atkinson, 34 Ind. 518, 266 
 Applegate v. Edwards, 45 Ind. 329, 85 
 v. White, 79 Ind. 413, 757 
 
 Application of the Senate, 10 Minn. 
 
 78, 9 Col. 623, 4 
 
 Arbintrode v. State, 67 Ind. 267, 249, 
 
 407 
 
 Arbuckle v.Biederman,g4 Ind. 16S, 36S 
 
 v. McCoy, 53 Ind. 63, 299, 7S6 
 
 v. Swim, 123 Ind. 20S, 103, 274, 345 
 
 Archer v. Heinan, 21 Ind. 29, 603 
 
 Archey v. Knight, 61 Ind. 311, 34, 154, 
 
 3 6 3, 443, 44 s 
 Archibald v. Lamb, 9 Ind. 544, 671 
 
 v. State, 122 Ind. 122, 239. 254 
 
 Architectural, etc., Co. v. Brook- 
 
 lyn, 85 N. Y. 652, 325 
 
 Arcia v. State, 2S Tex. App. 19S, 1^9, 
 
 661 
 Argenti v. San Francisco, 30 Cal. 
 
 45 8 > 4 S 9 
 
 Argo v. Barthand, So Ind. 63, 2S5 
 
 Arizona, etc., Co. v. Copper Queen 
 
 Co. (Ariz.), 11 Pac. 396, 469 
 
 Arkansas, etc., Co. v. Canman, 52 
 
 Ark. 517, 693 
 
 Aden v. State, 18 N. H. 563, 674 
 
 Amies v. Chappel, 2S Ind. 469, 129 
 
 Armijo v. Abeytra (N. M.), 25 Pac. 
 
 Rep. 777, 44 6 
 
 Armstrong v. Athens Co., 16 Pet. 
 
 281, 21 
 
 v. Caesar, 72 Ind. 2So, 404 
 
 v. Clark, 17 Ohio, 495, 765 
 
 re to Pages.\ 
 
 Armstrong v. Gilchrist, 2 Johns. 
 Cas. 424, 32 
 
 v. Horshman,93 Ind. 216, 760 
 
 v. Tait, 8 Ala. 635, 5711 
 
 Arndt v. Hosford, 48 N. W. Rep. 
 
 9 s 1. 345 
 
 Arnold v. Angell, 62 X. Y. 508, 724 
 v. Commonwealth, 80 Ky. 300, 7 
 v. Engleman, 103 Ind. 512, 108 
 
 v. Frost, 9 Benedict, 267, 337 
 
 v. Hawkins, 27 Mo. App. 476, 40 
 v. Waldo, 36 Vt. 204, 112 
 
 Arrowsmith v. Rappelge, 19 La. 
 
 Ann. 327, 112 
 
 Arterburn v. Young, 14 Bush. (Ky.) 
 
 5°9. , J -4 
 
 Arthurs v. Hart, 17 How. 6, 613 
 
 Artman v. West Point, etc., 16 Neb. 
 
 572, 70 
 
 Asch v. Wiley, 16 Neb. 41, 320 
 
 Ashbaugh v. Edgecomb, 13 Ind. 466, 541 
 Ashe v.Glenn, 33 So. Car. 606, 446, 452 
 Ashley v. Foreman, S5 Ind. 55, 572 
 
 v." Laird, 14 Ind. 222, 704 
 
 Ashmole v.Wainwright, 2 0^6.837, 10 
 Ashton v. Shepherd, 120 Ind. 69, 267, 
 
 39 6 
 Ashworth v. Kittridge, 12 Cush. 
 
 i93' 535 
 
 Askren v. State, 51 Ind. 592, 77 
 
 Asking v. Miles, 16 Ind. 329, 614 
 
 Aspinwall v. Board, 78 Ind. 372, 766 
 Associates of Jersey Co. v. Davison, 
 
 5 Dutch. 415, 267 
 
 Astley v. Capron, S9 Ind. 167, 692. 765 
 
 Atchison, etc., Co. v. Bayes, 42 
 
 Kan. 609, 620 
 
 v. Benton, 42 Kan. 69S, 601 
 
 v. Dougan, 39 Kan. 1S1, 100 
 
 v. Plunkett, 25 Kan. iSS, 579 
 
 v. Stanford, 12 Kan. 354, 731 
 
 v. Thul, 29 Kan. 466, 539 
 
 v. Wagner, 19 Kan. 335, 770 
 
 Athens, etc., Works, v. Bain, 77 
 
 Ga. 72, 475 
 
 Atherton v. Fowler, 91 U. S. 143, 499 
 Atkins v. Wyman, 45 Md. 399. 463 
 
 Atkinson v. Dailey, 107 Ind. 117, 570, 
 
 577 
 v. Gwin, 8 Ind. 376, 570 
 
 v. Martin, 39 Ind. 242. 295, 752 
 
 v. Mott, 102 Ind. 431, 4 X 3 
 
 v. Olesener, ^7 Hun. 592, 655 
 
 v. Taylor, 2 Wills. 117, 2S6 
 
 Atlantic Ins. Co. v. Lemar, 10 
 
 Paige, 505. 457 
 
 Atlas, etc.. Co. v. Byrus,45 Ind. 133, 72 
 Atlas Mining Co. v. Johnston, 23 
 
 Mich. 36, 
 
 28
 
 X X X 
 
 TABLE OF CASES. 
 
 {References 
 Attorney-General v. Blossom, i 
 
 Wis. 317, 431 
 
 v. Boston, 123 Mass. r 1.33 
 v. City of Eau Claire, 37 Wis. 
 
 400. I |i 
 
 v. Luii, 2 Wis. 5117, S 
 \ . North Am. Life Ins. Co., 77 
 
 V V. 21 ,;. 270 
 
 v. Railroad Co., 35 Wis. 425, 431, 
 
 •13- 
 
 v. Sillem, in II. L. 704, 21 
 
 Atwell v. Miller, 6 Md. 10, 697 
 
 Atwood v. Welton, 57 Conn. 514, 713 
 
 Auditor v. Atchison, etc., Co., 6 
 
 Kan. 500, 5, iS 
 
 Augusta, etc., Co. v. Randall 
 
 Ga. 297, ' 623 
 
 Aull Savings Bank v. Aull, So 
 
 Mo. 199, 699 
 
 Aultman, etc., Co. v. Weir, 134 111. 
 
 '37- 781 79 
 
 Aurora, City of, v. Cobb, 21 Ind. 
 
 493- 6l 5 
 
 v. Fox, 7S Ind. 1, 562 
 
 v. Johnson, 46 Ind. 315, 256, 769, 
 
 771 
 v. West, 2 g Ind. I (S, 72 
 
 Austin v. Bainter, 40 111. 82, 349 
 
 v. Crawford Co., 30 Ark. 57S, 1 12 
 v. Earhart, 88 End. [82, 266, 279,709 
 
 Averil v. Dickerson, 1 Blackf. 3, 209,310 
 
 Avery v. Dougherty. [02 Ind. 413, 325 
 
 v. Pritchard, 106 N. C. 344, 446 
 
 v. Ruffin, 4 Ohio, 420, 5] 1 
 
 v. Slack. 17 Wend. 85, 631 
 
 V. Chase, S3 Ind. 546, 567 
 
 Avers v. Adams, 82 Ind. 109, 712 
 
 V. Slate, 88 Ind. 275, 252 
 
 Ayres v. Carver, 17 How. 591, 73 
 
 AylsWOrth V. Brown, 31 Ind. 270, 509 
 Aylesworth v. Milford, 3S Ind. 226, 121, 
 
 360,448 
 Ayrault v. Chamberlain, 33 Barb. 
 
 82 9 , 
 
 01; 
 
 B 
 
 Baars v. Creary, 23 Fla.61, 109 
 
 Babb v. Bruere, 2 ; Mo. App. 004, 12 
 
 v. Missouri University, 40 Mo. 
 
 A.pp. 173. 73 s 
 
 Babcock v. People, 13 Col. 515, 528, 
 
 530.57 8 
 
 Bacas v. Smith, 33 La. Ann. 139, 444 
 
 Bacon, r. ■•. parte, 6 Cowen, 392, 440 
 
 v. Callendar, 6 Mass. $03, 61 
 
 v. Witherow, no Ind. 94, 105, 
 
 -'I- 263, 333 
 
 Baddcley v. Patterson. 7S Ind. 157, 294 
 
 Badders v. Davis, ss Ala. 367, 739 
 
 Badger v. Daniel, S2 N. C. 46S, 91 
 
 are to J'un-es.] 
 
 Bagley v. Grand Lodge, etc., 131 
 
 IH.498, 547 
 
 Baggs v. Smith, 53 Cal. SS, 456 
 
 Bailey v. Hervey, [35 Mass. 172, 589 
 
 v. Lubke, 8 Mo. App. 57, 100 
 
 V. Martin, 1 [9 I lid. 103, 504 
 
 v. State, 39 Ind. 438, 079 
 
 v. Troxell, 43 Ind. 432, 606,674 
 
 Bailv, Ex parte, 2 Cow. 479, 435 
 
 v. Schrader, 34 Ind. 260, 6^^ 
 
 v. Taat'e, 29 Cal. 424, 513 
 
 Bain v. Doran. 54 Pa. St. 124, 663 
 
 v. Goss, 1 23 Ind. 51 1, 159 
 
 v. Whitehaven, etc., Co., 3 II. 
 L. Cas. 1, 746 
 
 Baird v. Gillett, 47 N. Y. 1S6, 657 
 
 v. Mayor, 74 X. Y. 382, 646 
 
 Baker v. Armstrong. 57 Ind. 1S9, 673 
 v. Ashe( Tex.!, 16S.W. Rep. 36,661 
 v. Baker, 69 Ind. 399, 640 
 
 V. Board, ;; } Ind. 497, 307 
 
 v. Braslin (R. I.), 18 Atl. Rep. ' 
 1039, 143 
 
 v. Carr, 100 Ind. 330, 569 
 
 v. Chisholm, 3 Tex. 157, 13 
 
 v. Dessauer, 49 Ind. 28, 56S, 613 
 v. Dubois, 32 Mich. 92, 638 
 
 v. Gordon, 23 Ind. 204, SS, 290 
 
 v. Griffitt, 83 Ind. 411, S9 
 
 v. Groves, 126 Ind. 593, 30, 31 
 
 v. Hine, 54 Ind. 542, 530 
 
 v. Horsey, 21 Ind. 246, 751 
 
 v. Jewell. 6 Mass. 460, 602 
 
 v.Joseph, 16 Cal. 173, 791 
 
 v. Loring, 65 Mo. 527, 159 
 
 v. Ludlam, 11S Ind. S7, 2S7, 728 
 v. McGinnis, 22 Ind. 257, 761 
 
 v. Moor, 84 Ga. 186, 293, 792 
 
 v. Morris, 10 Leigh. 2S4, 310 
 
 v. Smiley, 84 Ind. 212, 219, 296, 6S7 
 v. Neff, 73 Ind. 68, 592 
 
 v. Simmons. 40 Ind. 442, 6S2, 768 
 V. State, in.) Ind. 47, 2 17 
 
 v. Swift. 87 Ala. 530, 164 
 
 v. Swift, 6 So. Rep. 153, 34S 
 
 v. White, 92 V. S. 5] |, 499 
 
 Baldenberg v. Worden, 14 W. Va. 
 397, 4S1 
 
 Baldridge v. Penland, 6S Tex. 441, 30S, 
 
 672 
 v. Scott, 4S Tex. 17S, 100 
 
 Baldwin v. Burrows, 95 Ind. Si, 292, 534 
 
 v. Grand Trunk Ry. Co., 64 N. 
 
 H. 596, 623 
 
 v. Humphrey, 75 Ind. 153, 282, 283 
 
 v. School City of Logansport, 
 
 7} Ind. 5 1'.. 728 
 
 ' v. Wright, 3 Gill. (Md.) 241, 71 
 
 Bales v. Brown, 57 Ind. 2S2, 1S0, 558 
 v. Scott, 26 Ind. 202, 394
 
 TABLE OF CASES. 
 
 XXXI 
 
 [References a 
 
 Balfe v. Lammers, 109 Ind. 347, 73 
 
 Ball v. Cox, 7 Ind. 453, 679 
 
 v. Cox, .29 \V. Va. 407, 508 
 
 Ballance v. Forsythe, 21 How. 3S9, 134 
 Ballew v. Roller, 124 Ind. 557, 4S8, 595 
 Ballinger v. Tarbell, 16 Iowa, 491, 117, 
 
 285 
 
 Baltimore, etc., Co., Ex parte, 108 
 
 U. S. 566, 439 
 
 v. Barnnm, 79 Ind. 261, 770, 774 
 
 v.Johnson, 83 Ind. 57, 45 
 
 v.Johnson, 84 Ind. 4-:o, 126 
 
 v. Kreiger, 90 Ind. 3S0, 394, 395 
 
 v. McWhinney, 36 Ind. 436, 615 
 
 v. Rowan, 104 Ind. 8S, 785 
 
 v. State, 69 Md. 551, 481 
 
 Balue v. Richardson, 124 Ind. 480, 766 
 
 Bane v. Ward, 77 Ind. 153, 279, 296 
 
 Hank v. Sweeney, 1 Pet. 567, 439 
 
 Bank of America v. Fortier, 27 La. 
 
 Ann. 2^3, 20S 
 
 Bank of Metropolis v. New Eng- 
 land Bank, 6 How. 212, 661 
 Bank of Mt. Pleasant v. Sprigg, 1 
 
 McLean, 17S, 311 
 
 Bank of Pleasant Hill v. Wills, 79 
 
 Mo. 275, 699 
 
 Bank of U. S. v. Daniel, 12 Pet. 32, 50 
 Bank of Utica v. Mersereau, 3 Barb. 
 
 Ch. 528, 593 
 
 Bank ot Vincennes v. State, 1 
 
 Blackf. 267, 217 
 
 Bannister v. Allen, 1 Blackf. 414, 177 
 
 v. Jett, S3 Ind. 129, 614 
 
 Banter v. Levi, 1 Chit. 713, 313 
 
 Banton v. Campbell, 2 Dana, 421, 74 
 
 Baragree v. Cronkhite, 33 Ind. 192, 590 
 
 Barber v. Briscoe, 8 Mont. 214, 639 
 
 Barbon v. Searle, 1 Vern. 416, 451 
 
 Barbour v. McK.ee, 7 Mo. App. 587, 484 
 
 Barcus v. Evans, 14 Ind. 3S1, 599 
 
 Bard v. Poole, 12 N. Y.495, 601 
 
 Bager v. Hoover, 120 Ind. 193, 597 
 
 v. Manning, 43 Ind. 472, Il6, 11S 
 
 Barker v. Barker, 39 N. H. 40S, 11S 
 
 v. Hobbs, 6 Ind. 385, 545, 556 
 
 v. Livingston Co. Bank, 30 111. 
 
 59 J . 547 
 
 Barkly v. Copeland, 74 Cal. 1, 655 
 
 Barley v. Dunn, 85 End. 338, 774 
 
 Barlow v. Black, 25 la. 308, 411 
 
 v. State, 2 Blackf. 114, 250, 619, 744 
 Barnaby v. State, 106 Ind. 539, 256, 2^7, 
 
 7 6 5 
 Barnard v. Cox, 25 Ind. 251, 417 
 
 v. Graham, 14 Ind. 322, 7S9 
 
 Barndollar v. Colton, 5 Col. 29, 273 
 
 Barndt v. Frederick, 78 Wis. 1, 416 
 
 Barnes v. Bell, 39lnd.32S, 283,394, 72S 
 
 v. Conner, 39 Ind. 294, 2S1 
 
 re to JPag'es.] 
 
 Barnes v. Dell, 39 Ind. 32S, 281 
 
 v. Easton, 98 N. C. 116, 8 
 
 v. Ingalls, 39 Ala. 193, 739 
 
 v. Rahner, 39 Ind. 589, 2Si 
 
 v. State, 28 Ind. 82, 291 
 
 v. Stevens, 62 Ind. 226, 635 
 
 v. Wright, 39 Ind. 293, 2S7, 728 
 
 Barnett v. Feary, 101 Ind. 95, =537, 562, 
 
 '57' 
 v. Harshbarger, 105 Ind. 410, 10S, 
 
 -74 
 v. Leonard, 66 Ind. 422, 613 
 
 Barney v. Barney, 14 Iowa, 1S9, 144 
 
 v. Dudley, 40 Kan. 247, 
 
 [8 
 
 v. Hartford, 73 Wis. 95, 288 
 
 Barnhart v. Ford, 41 Kan. 341, 677 
 
 Baron v. Korn, 127 N. Y. 224, 734 
 
 Barr v. Hannibal, etc., Co., 30 Mo. 
 
 App. 24S, 413 
 
 Barren Creek, etc., v. Beck, 99 Ind. 
 
 247, .^ 2 
 
 Barreon v. Frink, 30 Cal.4S6, 671 
 
 Barret's Appeal, In re (Pa.), 13 Atl. 
 
 Rep. 72, S6 
 
 Barrett v. Delano (Me.), 14 Atl. 
 
 Rep. 2S8, 663 
 
 Barrett v. Fisch, 76 la. 553, 412 
 
 Barribeau v. Blont, 17 How. 43, 115 
 
 Barry v. Briggs, 22 Mich. 201, S3 
 
 v. Edmunds, 116 U. S. 550, 49 
 
 v. Mercein, 4 How. 574, 3SS 
 
 Barth v. Clise, 12 Wall. 400, 571, 6^6 
 
 v. Rosenfield, 36 Md. 604, ' 68 
 
 Bartholomew v. Langsdale, 31; Ind. 
 
 273, 345- 746, 7S2 
 
 v. Pierson, 112 Ind. 430, 19, 371, 
 
 475> 7i3 
 
 v. Preston, 46 Ind. 2S6, 269 
 
 Bartlett's Appeal, 82 Me. 210, 219, 314 
 
 Bartlett v. Beadmore, 74 Wis. 4S5, 56S 
 
 v. Hoyt, 33 N. II. 151. ' 733 
 
 v. Pittsburgh, etc., Co., 94 Ind. 
 
 282, 563, 564 
 
 v. Smith, 11 Mees & W. 4S3, 701 
 
 v. State, 28 Ohio St. 349, ' 6S1 
 
 Bartley v. Phillips, 114 Ind. 1S9, 250, 
 
 29 x > 293, 581,647, 716, 791 
 
 v. State, in Ind. 358, 256, 257, 758 
 
 Bartling v. Behrends, 20 Neb. 211. 577 
 
 Barton v. Kane, 17 Wis. 38, 568, 611 
 
 v. Long, 45 N. J. Eq. 160, 122 
 
 v. State, 67 Ga. 653, 250 
 
 Bascom v. Young, 7 Mo. 1, 671 
 
 Basey v. Gallagher, 20 Wall. 670, 675, 
 
 676 
 
 Bass v. Comstock, 3S N. Y. 21, 635 
 
 v. Doermer, 112 Ind. 390, 174, 37S, 
 
 44 6 - 447 
 
 v. Elliott, 105 Ind. 517, 217, 74S
 
 XXXI' 
 
 TABLE OF CASES. 
 
 [ /■'- I, ycnces are to Pages.] 
 
 59 2 
 [20 
 
 528 
 
 773 
 142 
 
 v. Ft. Wayne, 121 [nd. 389, 1 17. 
 
 215, - 
 v. Smith, 61 Ind. 72. 637 
 
 Bass Foundry, etc., v. Board, 115 
 
 [nd. 234, 13. 4-"< r, 7° 
 
 Bassett V. Warner, 23 Wis. 673, 48S 
 
 Bateman v. Florida, etc., 26 Fla. 
 
 v. Ball, 72 111. 10S, 
 
 V. Hates, ig Tex. [22, 
 
 v. Bulkley, 7 111. 3S9, 
 
 v. Ryberg, 40 Cal. 465, 
 
 v. Scott, 26 M<>. A.pp. 42S, 124, 149 
 
 v. Sheets. 64 Ind. 209, 61 
 
 v. St. Johnsburg, etc., Co., 32 
 
 Fed. Rep. 5° 
 
 Batten v. State, 80 Ind. 394, 669, 703 
 
 Batterson v. Chicago, etc., Co., 49 
 
 Mich. [84, 5 8 7 
 
 Batterton v. Chiles, 12 B. Monr. 348,599 
 Battishill v. Humphrey, 64 Mich. 
 
 Baughan v. Baughan, 114 Ind. 73, 293 
 
 Baughman v. Calveras, 72 Cal. 572,460 
 
 Bayard v. Lombard, 9 I low. 530. 1 1 1. 272 
 
 v. United States, 127 (J. S. 246, 440 
 
 Bayless v. Daniels, S Tex. 140, 487 
 
 * v. Glenn, 72 Ind. 5, 295, 725. 752 
 
 Bays v. Hunt. 60 la. 251, 536 
 
 Bazzo v. Wallace. [6 Neb. 293, 324 
 
 Beach v. Packard, 10 N't. 96, 273, 666 
 
 v. Zimmerman, [06 Ind. 495. 6S2 
 
 Bi agles v. Sefton, 7 Ind. 490, 536, 568 
 
 B aird v. United States, 5 Ind. 220,392 
 
 393' 
 
 458 
 
 271 
 
 59 2 
 
 394 
 789 
 
 ■79 
 
 -ss 
 
 4 1 
 
 Beal v. Chase, 31 Mich. 490, 
 
 v. Harrington, 116 111. 113 
 
 v. Ray. 17 Ind. 55 |. 
 
 v. State, 77 Ind. 231, 
 
 v. Stone. 22 la. 447, 
 Beals v. Beals, 20 Ind. [63, 
 
 v. Beals, 27 I nd. 77. 
 Beard v. First National Bank, 
 Minn. 153, 
 
 v. First Presbyterian Church 
 15 Ind. 490, 
 
 v. Hand, SS Ind. 183, 
 
 v. Lofton, [02 Ind. 408, 
 
 v. Sloan, 38 Ind. 12S, 
 
 v. Stat •, 54 Ind. 1 [3, 
 
 v. State, 57 Ind. 8, 
 Beardsley v. Frame, 73 Cal. 634, 
 Beatty v.Beatty (Ky.), 5 S.W. Rep 
 
 77 '• 
 
 \ . Benton, [35 I , S. 244. 
 
 v. Brown, 85 Va. 685, 
 
 v. O'Connor. 106 Ind. 81, 282. 774 
 Beauchamp v. State, 6 Blackf. 299. 527 
 Bi lulieu v. Parsons. 2 Minn. 37, 535 
 Beaver v. Taylor, 93 U. S 74° 
 
 656 
 
 229 
 
 ir '3 
 703 
 57' 
 256, 768 
 254, 288 
 is-6 
 
 71 
 
 i7 
 
 402 
 
 Beavers v. State, 58 Ind. 530, 159, 17S, 
 
 7"1- 775 
 
 Beck v. State, 72 Ind. 250, 1 24, 1 54, 246, 
 
 34S. 443. 768 
 
 1 v. Lamont, 13 How. Pr. 23, 634 
 
 Becknell v. Becknell, no Ind. 42, 86, 
 
 10S, 274. 294. 395, 725 
 
 Beckner v. Riverside, etc., Co., 65 
 
 Ind. 468, 638 
 
 Beckwith, In re, 87 N. Y. 503, 115 
 
 Bedford, etc., v. Rainbolt, 99 Ind. 
 
 551, 3°°> 345» 57i. 786 
 
 Bedgood v. State, 115 Ind. 275, 700, 703 
 Beeber v. Bevan, 80 Ind. 31, 1S1 
 
 Beech v. Abbott, 6 Vt. 672 
 
 Beeks v. Odom, 70 Tex. 183, 621 
 
 Beeler v. Hontsch, 5 Blackf. 594, 665 
 Beeman v. Banta, 113 N. Y. 615, 307 
 Beer v. Creditors, 12 La. Ann. 774, 11S 
 Beeson v. Howard. 44 Ind. 413, 635 
 
 Beeswing, The, 10 L. R. P. D. iS, 355 
 Begein v. Brehm, 123 Ind. 160, 480 
 
 Beggs v. State, 122 Ind. 54, 245, 246, 
 
 253. 2 9 2 
 Beguhl v. Swan, 39 Cal. 411, 437 
 
 Behrens v. Behrens,47 Ohio St. 323, 746 
 Behymer v. State. 95 Ind. 140, 747 
 
 Beigh v. Stnarr. 62 ind. 400, 446, 447 
 Beineke v. Wurgler, 77 Ind. 46S, 268 
 Beitman v. Hopkins, 109 Ind. 177, 756 
 1 Selden v. Nicola v, 4 E. D. Smith, 
 
 14, 6l 3 
 
 Belew v. Jones, 56 Miss. ^)2, 20 
 
 Belk v. Meagher, 104 U. S. 279, 391 
 
 Belknap v. Sealey, 14 N. Y. 143, 550 
 
 Bell v. Anderson, 74 Wis. 638, 120 
 
 v. Bumstead, 14 N.Y. Supp.697, 733 
 
 v. Carley, 3 Ind. 577, 619 
 
 v. Cox, "122 Ind. 153, 603 
 
 v. Davis, 1 Cal. 134, 673 
 
 v. Dix, 49 Ind. 232, 72 
 
 v. Golding, 27 Ind. 173, 475 
 
 v. Hungate, 13 Ind. 382, 63S 
 
 v. Keete, 12 La. Ann. 340, 704 
 
 v. Kendall(Ala.),8So. Rep. 492, 739 
 
 v. Mansfield (Ky., 13 S.W. Rep. 
 
 S38, 293 
 
 * v. Mousset, 71 Ind. 347, 219 
 
 v. State, 42 Ind. 335, 231, 679 
 
 v. Rinker, 29 Ind. 267, 769 
 
 v. Trotter, 4 Blackf. 12, 392 
 
 Belleau v. Thompson, ^ Cal. 495, 39S 
 
 Bellefontaine, etc., Co. v. Hunter, 
 
 33 Ind. 335, 5io,555,6i3 
 
 Bellegrade v. San Francisco Bridge 
 
 Co., So Cal. 61, 
 Belt v. Davis, 1 Cal. 134, 
 Bell R. Co. v. Mann. 107 Ind 
 
 Belton v. Smith. 45 Ind. 291, 
 
 109, 449 
 
 7o, 73 
 '9, 5°2, 
 565, 606 
 129, 248
 
 TABLE OF CASES. 
 
 XXXlll 
 
 {References a 
 
 Belvin v. Richmond, 85 Va. 574, 7 
 
 Bemes v. Jennings, 46 Vt. 45, 677 
 
 Bender v. Sherwood, 21 Ind. 167 52 
 
 v. State, 26 Intl. 285, 397, 637 
 
 v. W ampler, 84 Ind. 172, 124, 154, 
 
 222, 225, T,<>n, 443, 774 
 Benedict v. Bray, 2 Cal. 251, 306 
 
 v. Fallow, 1 Ind. App. 160, 59 
 
 Beneiiel v. Aughe, 93 Ind. 401, 75, 295 
 Benhold v. Fox, 21 Minn. 51, 180 
 
 Benjamin v. Elmira, etc., Co., 49 
 
 Barb. 441, 4S9 
 
 Bennett v. Abbett, 51 Ind. 252, 67^ 
 
 v. Allcott, 2 T. R. 166, 588 
 
 v. Bennett, 102 Ind. 86, 219, 222, 225 
 v. Keehn, 67 Wis. 154, 100 
 
 v. Mattingly, no Ind. 197, 108, 596 
 v. Mclntyre, 121 Ind. 231, 588 
 
 v. State, 22 Ind. 147, 374 
 
 v. Syndicate Ins. Co. ,43 Minn. 
 
 45- 6 39 
 
 Bement v. Trenton, etc., Co., 3 Vr. 
 
 (N.J.) 513, 102 
 
 Benoit v. Schneider, 39 Ind. 591, 112, 
 
 I4 2 . 397 
 
 Bensley v. Haeberle, 20 Mo. App. 
 
 648, 225 
 
 Benson v. Adams, 69 Ind. 353, 101, 102 
 
 v. Baldwin, 10S Ind. 106, 757 
 
 v.Christian (Ind.), 16, 29, 124, 149, 
 
 619 
 
 v. Mahoney, 6 Baxt. 304, 534 
 
 v. State, 119 Ind. 4SS, 255, 266 
 
 Bent v. Maupin, 86 Ky. 271, 683 
 
 Bentley v. Coyne, 4 Wall. 509, 451 
 
 v. Dunkle, 57 Ind. 374, 199 
 
 Bepley v. State, 4 Ind. 264, 301 
 
 Beresch v. State, 13 Ind. 434, 619 
 
 BerghofF v. McDonald, S7 Ind. 549, 120, 
 
 172, 271, 511, 718, 7S6 
 
 Bergis v. Farrar, 45 Ind. 41, 757 
 
 Berkey, etc., Co. v. Ilascall, 123 
 
 Ind. 502, 293, 751 
 
 Berkley v. Kober, 13 Mo. App. 502, 767 
 v. Tapp, 87 Ind. 25, 6S7 
 
 Berks County v. Jones, 21 Pa. St. 
 
 413- 
 
 v. Pile, 18 Pa. St. 493, 
 Berkshire v. Young, 45 Ind. 461, 
 
 v. Shultz, 25 Ind. $22,, 
 Berlin v. Oglesbee, 6^ Ind. 30S, 
 
 767. 
 Berly v. Taylor. 5 Hill, 577. 
 Bernhamer v. State. 123 Ind. 577, 
 Bernhard v. Brown. 31 111. 3S5, 
 Berry v. Berry, 22 Ind. 275, 83, 
 
 v. Grevel, n la. 135. 
 
 v. State, 10 Ga. 511, 
 Bertrand v. Taylor, 32 Ark. 470, 
 
 192 
 192 
 
 285, 
 72S 
 604 
 
 763. 
 
 7S6 
 
 587 
 
 465 
 
 2nS 
 
 s 9 
 
 623 
 615 
 
 re to Pages. ,] 
 
 Bertelson v. Bower, Si Ind. 512. 
 Bessette v. Slate, lOl I ml. 85, 
 Bethell v. Bethell, 92 Ind. 318, 420, 
 
 v. Mathews, 13 Wall. 1, 
 
 v. McCool, 46 Ind. 303, 
 Betson v. State. 47 Ind. 54, 
 Betts v. Dimon, 3 Conn. 107, 
 
 v. Quick, 1 14 Ind. [65, 
 
 v. State. 66 Ga. 508, 
 Bevan v. Hayden, 13 la. 122, 
 
 v. Tomlinson, 25 Ind. 253, 
 Bever v. North, 107 Ind. 544, 
 Bewley v. Graves, 17 Ore. 274, 
 Beyer v. Soper, etc., Co.. 76 Wis. 14, 
 Bibb v. Reid. 3 Ala. 88, 
 Bibbler v. Walker, 09 Ind. 362, 
 Bice v. Hall, 120 111. 597, 
 Bickett v. Garner, 31 Ohio St. 28, 
 
 Biddison v. Moseley. 57 Md. 89, 
 Bidinger v. Bishop. 76 Ind. 244, 
 Bidwell v. Astor Mutual Ins. Co., 
 
 16 N. Y. 263, 
 Biemel v. State. 71 Wis. 444, 
 Bienenteld v. Fresno Milling Co., 
 
 82 Cal. 425. 
 Bierly v. Harrison, 123 Ind. 516, 
 Bigelow, Ex parte, 113 U. S. 328. 
 
 v. Doolittle, 36 Wis. 115, 
 
 v. Sickles (Wis.), 49 N. W. 
 Rep. 196. 
 Bigler v. Waller, 12 Wall. 142, 
 Biggs, Ex parte, 64 N. C. 202, 
 Billups v. Daggs, 38 Mo. App. 367, 
 Bilyea v. Smith, 18 Ore. 335, 
 Binford v. Minor, 101 Ind. 147, 167, 
 Bingham, In re, 127 N. Y. 296. 
 
 v. Brumback, 24 111. App. 332. 
 
 v. Cabot, 3 Dall. 19. 273, 
 
 v. Stage, 123 Ind. 281, 216, 
 
 526, 527. 585, 685, 
 
 v. Stumph. 48 Ind. 97. 
 
 v. Walk. 128 Ind. [64, 
 Binney v. Chesapeake, etc., Co., 8 
 
 Pet. 214, 
 Binns v. State, 66 Ind. 428, 
 Birch v. Frantz, 77 Ind. 199, 
 Bird v. Dansdale, 2 Binn. So, 
 
 v. Lanius. 7 Ind. 615, 
 
 69 
 
 50S, 
 
 546, 
 
 - 6 93 
 Birmingham, etc., Co. v. Wildes, 
 
 85 Ala. 593. 
 Bisel v. Tucker, 121 Ind. 249. 52 
 Bissel v. Drake. 19 Johns. 66, 
 Bish v. Van Cannon, 94 Ind. 263, 
 Bishop v. Carter. 29 la. 165, 
 v. Cook. 13 Barb. 326, 
 v. Empire, etc.. Co., 1 J. & S. 
 (X. V.) .7. 
 
 v. Moorman. 98 Ind. 1, 90, 
 
 74S 
 622 
 640 
 273 
 599 
 729 
 9 
 2SS 
 
 53S 
 691 
 4S0 
 
 5-o 
 402 
 5S1 
 
 53i 
 
 43 
 
 44 
 
 49", 
 
 497 
 
 ^5 
 ;62 
 
 4-2 
 612 
 
 75S 
 
 504 
 
 483 
 
 739 
 
 2 12 
 
 7 
 
 661 
 
 452 
 666 
 630 
 
 445 
 477 
 416, 
 746 
 769 
 730 
 
 4S2 
 661 
 282 
 750 
 
 >97. 
 694 
 
 675 
 
 ,SS 
 
 ''97 
 (, 44 
 4 11 
 321 
 
 9i 
 ;9o
 
 XXXI V 
 
 TABLE OF CASKS. 
 
 /[' i. , , ,■:■ , s ire to /' 
 
 676 
 630 
 
 256 
 43 
 
 Bishop v. Morris, 22 111 App. 
 \ Redmond, 8} I nd. 1 57, 
 \ Silver Lake, 1 tc., Co., 62 N. 
 11 1.55, 
 
 State (Ark.), 14 S. W. Rep. 
 88, 
 
 \ . Village of Goshen, 120 N.Y. 
 
 337, 
 
 v. \\ elch, 54 [nd. ^,27, 
 Bispham v. [nskeep, 1 Coxe, 231, 
 Bissell v.Jeffersom ill.-. 2 \ How'. 287, 285 
 
 v. Wert, 35 I n,!. 5 (., 199 
 
 Bissol v. State. 53 1ml. 408. 791 
 
 Bitting v. Ten Eyck, 82 [nd. 421, 469 
 Bittinger v. Bell, 65 [nd. 445. 596 
 
 r v. Wagar, 83 Mich. 225. 639,654 
 Bixbv v. State. [5 Ark. ; 791 
 
 1 v. Bixel, 107 1ml. 534, 215, 72 } 
 Bixlie v. Wood. 2 1 N. V. 007. 587 
 
 Black v. Camden, etc., Co., 45 Barb. 
 
 4". 
 
 v. Coan. 48 Ind. 385, 
 
 v. Daggy, 13 [nd. 383, 
 
 v. Peters, 64 Ga. 628, 
 
 v. Shaw. 20 Cal. 68, 
 
 v. State. 58 [nd. 589, 
 
 v. Thomson, 107 Ind. 162, 419, 
 
 6.55 
 
 665 
 
 96 
 
 i l 1 
 30S 
 
 5 '7. 
 5-° 
 4i3 
 75' 
 
 v. Washington, 65 Miss. 60, 
 
 v. Winterstein, 6 Neb. 22^, 
 
 Blackberry v. People, 10 111. (5 
 
 Gilm.) 266, 437 
 
 Blackburn v. Blackburn (Ky.), 11 
 S. W. Rep. 712, 640 
 
 v. Crowder, no Ind. 127, 334, 791 
 v. Selma, etc., Co., 2 Flippin, 
 525, 
 
 Blacker v. Slown, I 14 Ind. 322, 579, 70S 
 
 I ;. cketer v. House, 67 Ind. 414, 691,743 
 Blackledge v. Benedick, 12 I ml. 389, [93 
 
 I Hai klock v. Small. 127 I , S, ■ 16, y 10 
 .well v. Smith, 8 Mo. App. 43, 41 I 
 v. Stat.- lex.). [5 S. W. Rep. 
 
 597 , 57S 
 
 \. McCaine, 105 N. C. 460, 66 
 
 Blair v. Davi6, 9 Ind 236, 101,281,282, 
 
 284 
 v. Hanna, S7 [nd. 29S, 735 
 
 v. Kilpatrick, |.o I ml. 312, 312 
 
 v. I .anning, ''t 1 ml. (99, 471 
 
 v. Miller, 4 Dall. 21. ' 228 
 
 v. Shelby Co. Asso., 2S Ind. 
 175. 597 
 
 \ . Smith, 1 14 [nd. 1 1 |, 2 1 q 
 
 Blake v. Broughton, 107 N. C. 220, (155, 
 
 D5g 
 v. Griswold, [04 N. Y. 613, 141 
 v. 1 [edges, 1 1 tnd. 500, 572 
 
 v. Lyon, 75 N. Y. 611, 326 
 
 v. Lyon, etc., Co., 75 N.Y. 611, 323 
 
 Blake v. Powell, 2'' Kan. 320, 535. 537 
 
 v. Stewart. 29 I ml. 3 t S, 514 
 
 Blanchard v. Bissell, 11 Ohio St. 96, 35 
 
 v. Jones, 101 I ml. ; \2, 577 
 
 Bland v. State. 2 I nd 7^2 
 
 Blandin v. Silsby, 62 Vt.69, (.90 
 
 Blanton v. Carroll, 86 Va. 539, 607 
 
 Blany v. Finley, 2 Blackf. 3 [8, 675 
 
 Blasingame v. Blasingame, 24 Ind. 
 
 86, 562 
 
 Blaisdell v. Scally, 84 Mich. 149, 659 
 Blatchford v.Newberry, 100IH.4S4, 471 
 Blazinski v. Perkins, 77 Wis. 9, 619 
 Blecker v. Schoff, 48 N. W. Rep. 
 
 1079, 345 
 
 Bledsoe v. Bledsoe (Ky.), 1 S. W. 
 
 Rep. 10. 620 
 
 v. Irvin. 35 Ind. 293, 58S, 603 
 
 v. Nixon, 09 N. C. Si, 459 
 
 v. Rader, 30 [nd. 354, 397, 4°3 
 
 Blessing v. Blair, 15 I ml. 546, 563, 
 
 Bliley v. Taylor, 84 Ga. 154, 62S 
 
 Blinks v. State. 48 [nd. 172, 675 
 
 Blizzard v. Applegate, 77 Ind. 516, 537, 
 
 658, 690 
 
 v. Blizzard. 40 Ind. 344, Iol, 764 
 
 v. Haves, 46 Ind. 166, 701 
 
 v. Phebus, 35 Ind. 2S4, 769 
 
 v. Riley, S3 Ind. 300, 266. 713, 770 
 
 Block v. Darling, 140 U. S. 234, 740 
 
 v. Ebner, 54 Intl. 544, 162 
 
 v. State. 100 Ind. 3^7, 52S, 530 
 
 Blodgett v. Morris. 14 N. Y. 4S2, 603 
 
 Blonheim v. Moore, 11 Md. 365, 338 
 
 Bloomfield Ry. Co. v. Burress, S2 
 
 Ind. S3, 681 
 
 Bloomfield v. Ketcham, 5 N. Y. 
 
 Civ. Pro. Rep. 407 (S. C. 95, N. 
 
 Y. 657), 
 
 Bloomfield R. R. Co. v. Van Slike, 
 
 107 I ml. 4S0, 402, 
 
 Blossom v. Milwaukee, etc., Co., 1 
 
 Wall. 655, 
 Blount v. Rick, 107 Ind. 23S, 404, 
 Blumhardt v. Rohr, 70 Md. 32$, 677, 
 v. Rohr ( Md.), 17 Atl. Rep. 266, 
 Blum v. Strong, 71 Tex. 321, 
 
 v. Whitworth, 66 Tex. 350, 
 Board v. Armstrong. 91 Ind. 528, 
 v. Arnett, [16 ] nd. 478, 
 v. Benson, ^3 Ind. 469, 162, 
 \ . Bond, 3 Col. 222, 
 v. Brown, 14 Ind. 191, 363, 453, 
 
 v. Bunting, in Ind. 143, 5S, 
 v. Center Tp., 105 Ind. 422, i77> 
 v. Courtney, 105 Ind. 311, 647, 
 
 v. Dombke, 94 Ind. 72, 
 v. Embree, 7 Blackf. 461, 
 
 189 
 562 
 
 "5 
 
 747 
 691 
 
 69S 
 4S6 
 266 
 
 507 
 670 
 76S 
 182 
 
 455. 
 4 6 5 
 479 
 469 
 668, 
 669 
 537 
 755
 
 TABLE OF CASES. 
 
 XXXV 
 
 [References are to Pages.] 
 
 Board v. Eperson, 50 Ind. 275, 
 v. Fuller, 1 [8 End. 158, 
 v. Gorman, 19 Wall, 661, 
 v. Hall, 70 Ind. 469, 
 v. Hammond, S3 Ind. 4.53, 
 v. Hand, SS Ind. 1S3, 
 v. Hicks, 2 Ind. 527, 
 v. Huff, 91 Ind. ^^, 
 V. Jameson, 86 Ind. 154, 
 v.Johnson, 127 Ind. 23S, 
 v. Karp, 90 Ind. 236, 
 v. Kimberlin, 10S Ind. 449, 
 v. Kromer, S Ind. 446, 
 v. Legg, 9.3 Ind. 523. 
 
 759 
 5 x 3i 6 97 
 334 
 2S5. 470 
 656 
 70S 
 43 s < 59 1 
 5 6 7 
 597 
 5°7 
 77i 
 736 
 692 
 691 
 486 
 670 
 420 
 
 13. 
 
 v. Legg, no Ind. 479, 
 
 v. Legg, 115 Ind. 544. 
 
 v. Leggett, 115 Ind. 544. 
 
 v. Logansport, etc., Co 
 Ind. 199, 
 
 v. Louisville, etc., Co 
 S. 221, 
 
 v. Markle, 46 Ind. 96, 
 
 v. Mayer, 10 Ind. 400, 
 
 v. Montgomery, 109 Ind. 69, 162, 
 766, 767 
 
 v. Newman, 35 Ind. 10. 14, 159, 74S 
 
 v. Pearson, 120 Ind. 426, 293, 
 
 5S1. 715 
 v. Perche, 40 La. Ann. 201, 126 
 v. Pritchett, 85 Ind. 6S, 491 
 
 v. Reynolds, 44 Ind. 509, 566, 6S7 
 v. Shatter, 52 Ind. 171, 
 
 90 
 109 U. 
 
 "5 
 12, 87, 670 
 
 4°3 
 
 159, 161, 
 
 164, 172 
 
 766 
 
 62 
 
 21S.442 
 
 59i 
 
 59i 
 
 E. 
 
 93 
 
 v. Small, 61 Ind. 31S, 
 
 v. Smith, 40 Ind. 61, 
 
 v. Spitler, 13 Ind. 235, 
 
 v. State, n Ind. 20^, 
 
 v. State, 3S Ind. 193, 
 
 v. Tichenor (Ind.), 29 N 
 Rep. 32, 
 Boardman v. Griffin, 52 Ind. 101, 72^ 
 Bodentha v. Goodrich, 3 Gray, 50S, 346 
 Bodkin v. Merritt, 102 Ind. 293. 6SS, 749 
 Bodman v. Lake Fork, etc., Co., 132 
 
 111. 439. 591 
 
 Bogart, In re, 2 Sawy. 396. 12 
 
 v. Brown, 5 Pick. 18, 696 
 
 v. New Albany, 1 Ind. 38.36, 45, 50 
 Boggs v. Caldwell County, 2S Mo. 
 586, 9N 
 
 v. State, S Ind. 463, 37, 2^0 
 
 Bogle v. Gordon, 39 Kan. 31, 155 
 
 Bohannon v. State, 14 Tex. App. 
 
 271. 251.252 
 
 Bohr v. Neuenschwander, 120 Ind. 
 
 449- 712 
 
 Bohun v. Delessert, 2 Coop. Ch. 
 
 Cas. Pt. I. 21, 677 
 
 Boil v. Simms, 60 Ind. if>2, 404 
 
 Boker v. Chapline, 12 la. 204, 667 | 
 
 Bole v. Newberger, Si Ind. 274, 
 Bolin v. Simmons, Si Ind. 92. 
 
 289, 296 
 Boling v. Howell, 93 Ind. 329, 122 
 Bollinger v. Manning (Cah), 21 
 
 Pac. Rep. 375, 
 Bolster v. Catterlin, 10 Ind. 117, 393 
 Bomar v. Asheville, etc., Co., 30 So. 
 
 Car. 450, 
 Bonahan v. Nebraska, 125 U. S.692 
 Bond v. Armstrong, S8 Ind. 65, 
 v. Cutler, 7 Mass. 205, 
 v. Nave, 62 Ind. 505, 
 v. State, 23 Ohio St. 349, 
 v. Wabash, etc., Co., 67 la. 712, 
 
 Bonds v. Hickman, 29 Cal. 460, 
 Bondurant v. Watson, 103 U. S. 281, 
 Bonewitz v. Wygant, 75 Ind. 41, 
 
 71S, 
 Bonham v. Bishop, 23 So. Car. 96, 
 
 v. Mills. 39 Ohio St. 534, 
 Bonnell v. Allen, 53 Ind. 130, 215, 
 Bonner v. Glenn, 79 Tex. 531, 
 Bonny v. Bonny (Ky.), 9 S. W. 
 
 Rep. 404, 
 Bonsall v. Isett, 14 la. 309, 147, 
 
 Boody v. Watson, 64 N. H. 162, 
 Boogher v. Insurance Co., 103 U. 
 
 S. 90, 
 Booker v. Goldsborough, 44 Ind. 
 
 490, 472, 609, 
 
 Boone v. Hulsev, 71 Tex. 176, 
 
 v. Purnell, 2S Md. 607, 657, 
 
 Boor v. Lowrey, 103 Ind. 468, 
 Boorum v. Ray, 72 Ind. 151, ^88, 
 Booth v. Commonwealth, 7 Met. 
 
 285, 346. 
 
 v. Cottingham, 126 Ind. 431, 
 
 Boots v. Griffiths, 97 Ind. 241, 171, 
 
 624, 693, 
 
 Borchus v. Huntington, etc., Assn., 
 
 97 Ind. 180, 736, 
 
 Borden v. State, 6 Eng. (Ark.) 519, 
 
 Bordentown, etc., v. Flanagan, 41 
 
 N.J. L.i 15, 
 Borgalthous v. Farmers Ins., etc.. 
 Co., 36 la. 250, 1 12, 
 
 Borland v. 1 laven. 37 Fed. Rep. 394, 
 Borne v. Kansas City, 51 Mo. 454, 
 Bornheimer v. Baldwin, 42 Cal. zj, 
 Bosch v. Kassing, 64 la. 312. 
 Bosley v. Ackelmire, 39 Ind. 386. 
 v. Chesapeake, etc., Co., 3 Gill. 
 & J. 450, 554, 
 
 v. Farquar, 2 Blackf. 61, 378, 
 v. National, etc., Co., 123 N. 
 Y. 550. 73-- 
 
 178 
 
 27 . 
 
 • 396 
 
 p '54 
 
 .46 
 , 590 
 
 412 
 
 ,248 
 
 736 
 
 793 
 732 
 
 681 
 4S8, 
 7S4 
 167 
 
 134 
 292, 
 
 719 
 
 12S 
 
 525 
 590 
 638 
 
 490 
 
 2S4 
 
 96 
 
 68 1 
 
 4S7 
 661 
 
 143 
 603 
 
 49^ 
 187. 
 
 i 13 
 580, 
 
 700 
 
 768 
 
 147. 
 284 
 
 482 
 
 126 
 1 1 
 76 
 
 9 1 
 
 671 
 62 
 
 57o 
 632 
 
 745
 
 XXXVI 
 
 TABLE OF CASES. 
 
 Reft rences are to Pages.] 
 
 er v, Cramer. 18 Ind. 44, 7< r '- Boxley v. Collins. 4 Blackf. 320, 
 
 789 
 
 in v. Hayner, 31 Cal. 107, 167. ( [8 
 
 v. Tileston, n Mass. 1.67, [92 
 
 ell v. Boswell, 1 17 Ind. 599- 6, 93 
 
 v. Slate. S Ind. [Sq. 6, 277 
 
 a irk. Ex parte, 1 Cow. 1 (.3, 435 
 
 v. Brinkerhoff, 106 U. S. 3. 72, 499 
 
 v. Bryant, 1 13 [nd. 448. 217. 597 
 
 • orth v. Barker, 65 Ind. 595- 689 
 
 Bothwell v. Millikan, 104 [nd. 162, 506 
 
 .rf v. Wise 53 Ind. 32, 675 
 
 Bottorffv. Shelton, 7m Ind. 98, 689 
 
 Bouknight v. Brown. 16 So. Car. 
 
 155, • 4"i 745 
 
 Boulden \ . Estcy < KrganCo, (Ala.), 
 
 Rep. 283, 3°9 
 
 Boutelle v. Westchester, etc., Co.. 
 
 51 Yt. 4, 168, 508 
 
 len \ . Baiber, 101 N. C. 612^ 6i 
 
 v. Carolina, etc.. Co. (So. 
 
 Car.). 1 5 S. E. Re).. 421, 545 
 
 v. Fox, 99 N.C. 127, 164 
 
 v. Pollard. 71 Ind. 177, 678 
 
 \ Preston, 48 Ind. 367, 669 
 
 v. Reed, 34 Ind. 430, 317 
 
 v. Spears, 20 Ind. 140, 615 
 
 v. Swander, 121 Ind. 164. 250, 291, 
 
 624, <>|7. 668, 712. 716 
 
 Bower- v. Bowers, 53 Ind. 430, 729 
 
 \ . Elwood, ( - I ml. 234, 45 
 
 v . Mayo, 32 Minn. 2 p. 537 
 
 s M, Mutt, 5 Blackf. 231, 9S 
 
 Bowlus v. Brier, S7 Ind. 391, 266, 756 
 
 Bowman v. Eppinger, 1 X. Dak. 21, 643 
 
 \. Lewis, km l. S. 22, 303 
 
 \ . Phillips, 17 Ind. 341, 401, 785 
 
 v. Simpson, 68 Ind. 220. 1 17 
 
 Bowrell v. Zigler, 19 Ohio. 362, 504 
 
 Boyce v. Aubuchon, 34 Mo. App. 
 
 621 
 \ ( Iraham, 91 Ind. 420, 507. 7 | 5, 
 
 759- 7 6 5> :"" 
 
 v. Gumdy, 6 Pet. 777. 20S 
 
 v. Lake, 17 So. Car. 4S1, 616 
 Bovd v. Anderson, 102 Ind. 217, 732, 7S1 
 
 v. Brown, 120 Ind. 393, 643 
 
 • ^ ,1 Id well. 95 End 5-' 1 
 
 v. P -7 I 
 
 \ . Stab'. 17 < .:i. [94, 657 
 
 den v. Williams, <i2 \". C. 546 
 Boyer v. Berryman, 123 Ind. 451. 504 
 Boyle v. < 24 111. 49, 
 
 v. People, 4 Col. 17*.. 
 v. State. 105 Ind. 289, 62 J 
 
 ton \ . Foster, 7 Met. ( t ;. 
 Boynton \ , Sisson, ;<> Wis. 401. 52 1 
 
 \ . Simmon-. 72 I nd. 593, 41S 
 
 Bos \. Bennett, i II. Bla< ks. 432, 76 
 
 Brace v. Black, 12^ 111. 33. 
 
 it v.Griswold (N. Y.), 28 N, 
 E. Rep. 365, 
 Bradbury v. Cony, 62 Me. 223, 
 Braden v. Graves, 85 Ind. 92, 
 v. Leibenguth, 126 Ind. 336, 
 
 292, 
 
 71S 
 33 
 
 4S2 
 
 5 2 9 
 
 491 
 150, 
 276 
 7i3 
 
 v. Lemmon, 127 Ind. 9, 
 
 Bradford v. Higgins (Neb.), 47 N. 
 
 W. Rep. 749, 69, 79 
 
 v. State, 1 5 Ind. 347, 531, 679 
 
 Bradley, Ex parte. 48 I ml. 548, 231, 7S3 
 
 v. Bank, 20 1ml. 52S, 635 
 
 v. Bearss, 4 Ind. 1S6, 86 
 
 v. Bradley, 45 I ml. '7. 680 
 
 v. Citv 0tTranktbrt.99Ind.417, 64S 
 
 v. Clark. 1 Cush. 293, 615 
 
 v. Cramer, 66 Wis. 207, 659 
 
 v. Gait, 5 Mackey, 317, 316 
 
 v. Michael. 1 Ind. 551, 59S 
 
 v. Palen, 7S la. 120, 656 
 
 v. Rogers, 33 Kan. 120, 126 
 
 v. Root, 5 Paige, 632, 483 
 
 v. State, '31 Ind. 492, 661 
 
 v. Thixton, 117 Ind. 255, 265, 364 
 
 Bradshaw v. Callaghan, S Johns. 
 
 558, "7 
 
 Bradstreet, Ex parte, 4 Pet. 102, 438, 756 
 Bradway v. Waddell, 95 Ind. 170, 68q, 
 
 755 
 Bradwell v. Pittsburgh, etc., Co., 
 
 139 Pa. St. 104, 
 Brady, In re. 85 X. V. 268, 
 v. Hall, 14 Ind. 317, 
 v. Block, 57 Ind. 417, 
 v. Mayor oi New York, 22 J. 
 & S. (.57, 
 Bragg v. Bickford, 4 How. Pr. 21, 
 v. Olson, 12S 111. S40, 
 v. Wetzel. 5 Blackf. 95, 
 Brainard v. Jones, 18 N. Y. 35, 
 Brakken v. 'Minneapolis, etc., Co., 
 
 ^9 Minn. 41, 
 Bramblett v. McVey (Ky.), 15 S. 
 
 \V. Rep. 49. 
 Branch v. Faust, 115 Ind. 464, 
 Branch Rank, etc.," v. Moselcy, 19 
 
 Ala. 222, 77° 
 
 Brand v. Longstreet, 1 South (N. 
 
 J.), 325, 549 
 
 v. Whelan, iS 111. App. 186, 637 
 
 Brandon v. Judah, 7 Ind. 545, 675 
 
 v. Whitney, 54 Ind. 5S7, 109 
 
 Braneer v. Buttrick, 2S Wis. 450, 325, 
 
 780 
 Branham v. Ft. Wayne, etc., Co., 7 
 Ind. 524, 64 
 
 627 
 
 5M 
 
 58S 
 601 
 
 792 
 635 
 4i3 
 603 
 
 310 
 539 
 
 59 6 
 39 6
 
 TABLE OF CASES. 
 
 xxx VI i 
 
 [References a 
 Branham v. Johnson, 62 Ind. 259, 115, 
 140/142. 399 
 v. State, 11 Ind. 553, 254, 746 
 
 Braintree v. Southworth, 4 Gray, 
 
 304, 604 
 
 Brannon v. Hay, 42 Ind. 92, 7S0 
 
 Bransford v. Kara (Va.), 12 S. E. 
 
 Rep. 404, 648 
 
 Brant v. Gallup, 117 111. 640, 467 
 
 Bratton v. Bratton, 79 Ind. 588, 299 
 Brasher v. Van Cortland, 2 Johns. 
 
 Ch. 242, 604 
 
 Brassfield v. Burgess (Kv.), 10 S. 
 
 W. Rep. 122, 673 
 
 Bray v. Black, 57 Ind. 417, 599 
 
 v. Franklin Co., 60 Ind. 6, 36S, 
 
 37°. 44 6 
 v. Laird, 44 Ala. 295, 71 
 
 Braydon v. Goulman, 1 T. B. Mon. 
 
 "5> 535 
 
 Brazil v. Peterson, 44 Minn. 212, 792 
 Brazil, Town of, v. Kress, 55 Ind. 14, 393 
 Brauns v. Sterns, 1 Ore. 367, 521, 522 
 Braunsdorf v. Felner, 69 Wis. 334, 638 
 Breckley v. Weghorn, 71 Ind. 497, 292 
 Breden v. State, S8 Ala. 20. ' 679 
 
 Breeding v. Shinn, S Ind. 125, 10S 
 
 v. Shinn, 11 Ind. 547, 105, 263 
 
 Breedlove v. Bundy, 96 Ind. 319, 535 
 Breese v. Allen, 12 Ind. 426, 632 
 
 v. State, 12 Ohio St. 146, 195 
 
 Brehm v. State, 90 Ind. 140, 771 
 
 Breidert v. Krueger, 76 Ind. 55, 45, 444 
 Bremmerman v. Jennings, 101 Ind. 
 
 2 53> 5 6 7 
 
 Brenner v. Bigelow. S Kan. 496, 724 
 
 v. Chapman, 11 Kan. 11S, 633 
 
 v. Quick, SS Ind. 546, 154 
 
 Brewington v. Lowe, 1 Ind. 21, 1S6, 217 
 
 Brewster v. Baxter, 2 Wash. Ty. 
 
 135- 260 
 
 v. Shelton. 24 Conn. 140, 225 
 
 v. Wakefield, 22 How. 118, 119, 132 
 
 Brickley v. Weghorn, 71 Ind. 497, 71S, 
 
 774. 7S5 
 Brickman v. South Carolina R. Co., 
 
 8 So. Car. 173, 523 
 
 Bright v. Hutton, 12 Eng. L. & E. 
 
 *5. „ 474 
 
 v. State, 90 Ind. 343, 40S, 680 
 
 Brighton v. White, 12S Ind. in, 32 
 
 Briggs v. Barker, 145 Mass. 2S7, 224 
 v. Gleason, 27 Vt. 114, 791 
 
 v. Sneghan, 45 Ind. 14, 2S6 
 
 Bridgman v. Dambly. 41 Minn. 526, 520 
 Brink v. Reid, 122 Iiul. 2^7. 411 
 
 Brinkmayerv. Helblirig, 57 Ind. 43^, 736 
 
 re to Pages, ,] 
 Bristol, etc., Co. v. Boyer, 67 Ind. 
 
 -'.?»•• 5 6 7 
 
 Bristor v. Galvin, 62 Ind. 3^2, 28.' 
 British Bark Latona v. McAlep, 3 
 
 Wash. Ty. ^^2, 146 
 
 Britton v. Phillips, 24 How. Pr. m, j.97 
 
 Brobst v. Brobst, 2 Wall. .,1., 324 
 
 v. Brock, 10 Wall. 519, 571, 573 
 
 Brock v. State, S5 Ind. 397, 774 
 
 Brockett v. Brockett, 2 How. 23S, 98 
 
 Broderick's Will, 21 Wall. 503, 11 
 
 Brooke v. Logan, 112 Ind. 1S3, 88 
 
 Broker v. Scobey, 56 Ind. 5S8, ^72 
 
 v. Weber, 41 Ind. 426, 629, 7S9 
 
 Brookman v. Hamill. 43 N. Y. 554, 414 
 
 Brookover v. Forst, 31 Ind. 255, 150. 276 
 
 Brooks v. Allen, 62 Ind. 401, 147, 284 
 
 v. Doxey, 72 Ind. 327, 113, 114, 
 
 123, 361, 443 
 
 v. Dutcher, 22 Neb. 644, 568 
 
 v. Harris, 41 Ind. 390, 334 
 
 v. Harris, 42 Ind. 177, 470 
 
 v. Norris, 11 How. 204, 104, 3^0 
 
 v. Perry, 23 Ark. 32, 534 
 
 Brookville v. Gagle, 73 Ind. 117, 36 
 
 Brookville, etc., Turnpike Co. v. 
 
 McCarty, 8 Ind. 392, 592 
 
 Broom, Succession of, 14 La. Ann. 
 
 6 7» 47o 
 
 Bronenberg v. Board. 41 Ind. 502, 86 
 Bronson v. La Crosse, etc., Co., 1 
 Wall. 405, 456 
 
 v. Railroad Co., 2 Black, 524, 73 
 Brooster v. State, 15 Ind. 190, 572 
 
 Brotherton v. Weathersby (Tex.), 
 
 11 S. W. Rep. 505, 692 
 
 Brouse v. Price, 20 Ind. 216, 7^S 
 
 Browder v. McArthur, 7 Wheat. 58, 468 
 Brower v. Goodyer, S8 Ind. 572, 622 
 Brown, Ex parte, 116 U. S. 401, 435 
 
 v. Anderson, 90 Ind. 93, 420, 670 
 v. Brown. 7 Mo. 28S, 7 < > ^ 
 
 v. Brown, 29 W. Va. 777, 391 
 
 v. Buzan, 24 Ind. 194, 37S 
 
 v. Caldwell. 10 S. &. R. 114, 273 
 v. Carraway, 47 Miss. 66S, 20 
 
 v. Clarke, 4 How. 4, 761 
 
 v. Colie, 1 E. D. Smith, 265, 521 
 v. Critchell, no Ind. 31, 604 
 
 v. Desmond, 100 Mass. 267, 420 
 v. Driggers, 60 Ga. 114, 551 
 
 v. Eaton, 98 Ind. 591, 704 
 
 v. Edgerton, 14 Neb. 453, 71 
 
 v. Evans, 34 Barb. 594, 143 
 
 v. Freed, 43 Ind. 253. 525 
 
 v. Gill. 49 Ga. 5 (v, 077 
 
 v. Goble, i)7 tnd. 86, 90, 2S4, 422 
 v. Grove, 115 [nd. 84, 217. 7>)2 
 
 v. Hall, 85 Va. 146, 7' ; 
 
 v. Hazard, 2 Wash. Ty. 464, 261
 
 XXXV111 
 
 TABLE OF CASES. 
 
 /.'• ft it in es a 
 
 Brown v. Hillegas, 2 Hill, 447, 7 1 I 
 
 v. Home Savings Bank, 5 Mo. 
 
 412 
 
 19. 475 
 707 
 
 7°. 45 : 
 612 
 
 655 
 646 
 
 5.35 
 269 
 
 A pp. 1. 
 v. Jones, 1 13 Ind. 46, 
 v. [ones, 125 1 ml. 375, 
 v. ECeyser, 53 Ind. 85, 
 v. Klock, 117 N . Y. 340, 
 v. Klock. 52 I [un. 613, 
 \ . Lav ler, 21 Minn. 327, 
 v. Marshall, 120 Ind. 323, 
 v. Miner, [28 111. [48, 
 v. Minneapolis, etc., Co., 25 
 
 Minn. 461, 4 11 
 
 v. Mott, 22 Ohio St. 149, 194 
 
 v. No-el, 21 Minn. 415, 640 
 
 v. Nichols, etc.,Co., [23 Ind. 492, 216 
 v. Osborn, 1 Blackf. 32, 182 
 
 \ . ( )wen, 94 Ind. 31, 537, 610, 677 
 y. Rhodes, I Kan. 359, 757 
 
 v. Rice, jo Neb. 236, 633 
 
 v. Russell & Co., 105 Ind.46, 32,532 
 v. Searle, 104 Ind. 2 [S, 403 
 
 v. Smith, 24 111. 196, 524 
 
 v. Southern, etc., Co. (Utah), 
 
 26 Pac. Rep. 579, 639 
 
 \ . Stale, 5 Eng. 607, 674 
 
 v. State, 82 Ga. 224, 373 
 
 v. State. 70 Ind. .^76, 578 
 
 V. State, 103 Inch 133, 622 
 
 v. State, 105 Ind. 3S5, 253 
 
 v. State, 105 Ind. 494, 577 
 
 v. State, in Ind. 441, 239 
 
 V. Stale. 60 Miss. 447, 528 
 
 v. Stead. 5 Sims. 535, 596 
 \. Union Hank. 4 Mow. 465, 499 
 
 \ . Webber, 6 Cush. 560, 633 
 
 v. Wyncoop, 2 Blackf. 230, 598 
 
 l'.r.M les v. State, 47 Ind. 251, 509 
 Brownfield v. Hughes, 128 Pa. St. 
 
 194, 6 43 
 
 v. Weicht, 9 Ind. 394, 420, 670 
 
 Brow ning v. Hight, 78 End. 257. 680, 699 
 
 \. McCracken, 97 End. 279, 219, 
 
 225, 226, 227 
 
 \ . Wheeler, 2 1 Wend. 258, 648 
 
 Brow n lee v. Goldthait, 73 Ind. 481, 711 
 
 v. Hare, 64 End. jii, 271,683, 726 
 
 \ . Kenneipp, 4 t 1 nd. 2 [6, 7N8 
 
 Brow n County v. Winona, etc., Co., 
 
 38 Minn. 397, 436 
 
 v. Manchester, etc., Co., 117 
 
 1 S. 514, 5°. 5 1 
 
 v. Schuyler, 4 Gilm. 221, 58, 479 
 
 v. Smith, 4 1 Ind. 1, 129 
 
 v. State, 7 [nd 150, 256, 765 
 
 v. Tyler, 1 2- End. ,■ 199 
 
 Bramfield v. Drook, toi End. 190, 604 
 
 Brunner v. Brunner, 19 Ind. 98, 370 
 
 Brush Electric Co., Appeal of, 1 1 1 
 
 Pa. St. 574, 590 
 
 re to Pages.] 
 
 Bryan \. Bryan, 8 Cal. 130, 
 \ . Scholl, 109 Ind. 367, 
 
 V. State, 1 la. 3 (9, 
 
 Bryant v. Bryant, 4 Abb. Pr. N. S. 
 138. 
 
 v. Crosby, 40 Me. 9, 
 v. People, 71 111. 32, 
 v. Rich, 106 Mass. 1S0, 
 v. Richardson, 126 Ind. 145, 
 V. State. 106 Ind. 549, 
 Bryorly V. Clark, 48 Tex. 345, 
 Buch v. Hughes, 127 End. 46, 
 Buchanan v. Berkshire Life Ins. 
 Co., 96 Ind. 510, 81, 294, 401, 637, 
 v. Lee, 69 Ind. 1 17, 
 v. Logansport, etc., Co., 71 Ind. 
 265, 334- 
 
 v. Milligan, 68 Ind. 118, 325, 
 v. Milligan, 108 Ind. 433, 19, 
 
 v. Milligan, 125 Ind. 332, 307, 
 318, 
 v. State, 106 Ind. 251, 521, 
 
 v. Townsend (Tex.), 16 S. W. 
 Rep. 315, 5 8l > 
 
 Buchart v. Burger, 115 Ind. 123, 
 Buck V. Havens, 40 Ind. 221, 
 Buckey v. Stanley, 5 Blackf. 162, 
 Buckingham, In re, 57 Conn. 541, 
 Buckland v. Shepherd, 77 la. 329. 
 Bucklin v. Strickler (Neb.), 49 N. 
 
 W. Rep. 371, 
 Buckman v. Whitney, 24 Cal. 267, 
 Buckner v. Spaulding, 127 Ind. 229, 
 Budd v. Power, S Mont. 380, 402, 
 Buecher v. Casteen, 41 Kan. 141, 
 Buell v. Sherman, 28 Ind. 464, 
 
 v. State, 69 Ind. 125, 241, 243, 
 v. State, 72 Ind. 523, 
 Buffalo, etc., Co. v. Delaware, etc., 
 Co. (N. Y.), 29 N. E. Rep. 121, 
 v. Phillips, 67 Wis. 129, 
 Buffington v. Harvey, 95 U. S. 99, 
 Buford v. Gould, 35 S. C. 265, 
 Bugle v. Myers, 59 Ind. 73, 
 Bulen v. Granger, 63 Mich. 311, 
 Bulger v. Rosa. 1 19 N. Y. 459, 
 Bulkeley v. Butler, 2 U. & C. 434, 
 Bulkley v. Morgan, 46 Conn. 393, 
 Bull, En re, 14 Daly, 510, 
 Bull's Appeal, 2 1 Pa. St. 286, 
 Bull v. Coe, 77 Cal. 54, 
 
 v. Commonwealth, 14 C ir.il t . 
 613, 73 1 . 
 
 Buller v. Lenzee, 100 Mo. 95, 
 Bullock \. Cook, 28 Mo. App.222, 
 
 Bulwinkle v. Cramer, 30 So. Car. 
 C53. 
 
 45 6 
 
 462 
 770 
 
 96 
 691 
 
 43° 
 
 7- 
 671 
 
 409 
 
 781 
 
 5-7 
 
 72S 
 395 
 
 4 6 3 
 326 
 
 •175, 
 7"" 
 
 3H> 
 
 326 
 
 5 6 7 
 
 718 
 
 75S 
 179 
 
 >-S 
 112 
 
 G 33 
 "'7 
 758 
 403 
 6 73 
 294 
 246 
 251 
 
 593 
 
 745 
 -15 1 
 555 
 306 
 
 619 
 
 ("m 3 
 640 
 
 589 
 
 54 r> 
 260 
 411 
 
 743 
 
 75 
 
 454) 
 
 5H 
 
 73S
 
 TABLE OF CASES. 
 
 xx xix 
 
 [References are to Pages.) 
 
 Bumpass v. Wc'ob, 4 Porter (Ala.), 
 
 Bunce v. Gallagher, 5 Blatchf. 4S1, 590 
 Bundy v. Cunningham, 107 ind. 
 
 3 6 o, 73. 4 88 < 595. 73S 
 
 v. Hyde, 50 N. H. 116, 537 
 
 v. McClarnon, 11S Ind. 165, 237, 
 
 748 
 v. Ophir Iron Co., 35 Ohio St. 
 
 35 6 . 35 s 
 
 80, 
 
 S. 
 
 ss 
 681 
 
 619 
 
 62 
 
 2 93 
 
 Hi 
 
 v. Pool, 82 Ind. 502, 
 Bunker v. Rand, 19 Wis. 254, 
 Bunn v. Croule, 10 Johns. 239, 
 Bunnell v. Board, 124 Ind. 1, 
 
 v. Bunnell, 93 Ind. 595, 
 Bunt v. Sierra, etc., Co., 13S U 
 
 4S3, . 
 
 Buntin v. Hooper, 59 Ind. 589, 92, 349, 
 
 35 1 1 352, 45° 
 
 v. Rose, 16 Ind. 209, 624, 625 
 
 v. Weadle, 20 Ind. 449, 675 
 
 Bunting v. Saltz, S4 Cal. 16S, 453 
 
 Burchard v. Cavins, 77 Tex. 365, 314 
 
 Burckhalter v. Coward, 16 S.C. 435, 615 
 
 Burckham y. Burk, 96 Ind. 270, 562 
 
 Burbank v. Dyer, 54 Ind. 392, 277 
 
 v. Rivers, 20 Nev. 159. 94 
 
 Burdick v. Hunt, 43 Ind. 3S1 769, 770 
 
 Burgess v. Donoghue (Mo.), 2 S. 
 
 W. Rep. 303, 456 
 
 v. Hitt, 21 Mo. App. 313, 462 
 
 Burgett v. Bothwell, S6 Ind. 149, 34, 43, 
 
 177 
 
 v. Burgett, 43 Ind. 7S, 690 
 
 v. Teal, 91 Ind. 260, 562 
 
 Burgoyne v. Supervisors, 5 Cal. 9, 5 
 
 Burlingame v. Central, etc., Co., 23 
 
 Fed. Rep. 706, 
 
 Burlington, etc., Co. v. Simmons, 
 
 123 U.S. 52, 
 
 v. Stewart, 39 la. 267, 127, 
 
 Burk v. Andis, 9S Ind. 59, 520, 53S, 
 
 v. Avers, 19 Hun. 17, 
 
 v. Barnard, 4 Johns. 309, 
 
 v. Howard, 15 Ind. 219, 208, 31S, 
 
 330,33!. 332 
 
 v. Simonson, 104 Ind. 173, 122, 154, 
 
 361, 44S 
 
 v. State, 27 Ind. 442. 
 
 Burke v. Cruger, S Tex. 66, 
 
 v. Lee. 76 Va. 3S6, 
 
 v. Pepper. 29 Neb. 320, 
 
 v. Pinnell, 93 Ind. 540, 
 
 v. St. Paul, 35 Minn. 172, 
 
 v. State, 47 Ind. 52S, 247, 
 
 Burkam v. McElfresh, 88 Ind. 223, 
 
 162, 16S, 363, 511 
 Burkham v. Beaver, 17 Ind. 367, 596 
 
 744 
 
 5Si 
 
 6S 
 415 
 
 747 
 112 
 2S6 
 
 231 
 
 4 S 7 
 64.3 
 445 
 677 
 5 
 276 
 
 124 
 
 v. Burk, 96 Ind. 270. 
 
 Burkhardt v. Gladish, 123 Ind. 337, 394, 
 
 395. 39 6 
 Burkett v. Holman, ioq.Ind.6, 217, 393, 
 
 394, 395 
 
 Burleson v. Burleson, 15 Tex. 423, 483 
 
 Burnett v. Abbott, 51 Ind. 254, 123, 443 
 
 v. Curry, 42 Ind. 272, 477, 489 
 
 v. Trustees, 50 Ind. 251, 435 
 
 Burns v. Barenfield, 84 Ind. 43, 520 
 
 v. Fox, 113 Ind. 205, 521, 524 
 
 v. Harris, 66 Ind. 536, 700 
 
 v. Nash, 23 111. App. 552, 13 
 
 v. Singer, etc., Co., 87 Ind. 541, 1 16 
 
 v. Webster, 16 Neb. 25S, 306 
 
 Burnside v. Ennis, 43 Ind. 411, 180 
 
 Burntrager v. McDonald, 34 Ind. 
 
 277. 162, 766 
 
 Burr v. Burr, 10 Paige, 166, 335, 462 
 
 v. Mendenhall, 49 Ind. 496, 520, 
 
 521, 522, '525 
 
 Burrall v. Vanderbilt, 1 Bosw. 643, 335, 
 
 462 
 v. State, 28 N. E. Rep. 699, 665 
 
 Burroughs v. Norton, 4S How. Pr. 
 
 R. 152, 146 
 
 Burrows v. Mickles, 22 Fla. 577, 129 
 Burson v. National Park Bank, 40 
 
 Ind. 173, 72 
 
 Burt v. Panjand, 99 U. S. 180, 57S 
 
 v. Hoettinger, 28 Ind. 214, 207, 209, 
 
 213, 330, 7^9 
 v. Wigglesworth, 117 Mass. 302, 616 
 v. Reilly, 82 Mich. 251, 435 
 
 Burton v. Burton, 12S Ind. 342, 336, 461 
 v. Driggs, 20 Wall. 125, 731 
 
 v. Ferguson, 69 Ind. 4S6, 158 
 
 v. Reeds, 20 Ind. 87, 462 
 
 v. Wilkes, 66 N. C. 604, 619 
 
 v. West Jersey, etc., Co., 114 
 
 U.S. 574. * 746 
 
 Burst v. State, SS Ind. 341, 247 
 
 Busby v. Mitchell, 29 S. C. 447, 490 
 
 Buscher v. Knapp, 107 Ind. 340, 451 
 
 v. Scully, 107 Ind. 246, 623 
 
 Buse v. Russell, 86 Mo. 209, 4S3 
 
 Bush v. Bush, 46 Ind. 70, 630 
 
 v. Grover, etc., Co., 4S Ind. 258, 268 
 
 v. Hanson, 70 111. 480, 12 
 
 v. Rochester Bank, \8 N.Y.659, 129 
 
 v. State (Miss.), 6 So. Rep. 647, 99 
 
 Buscher v. Knapp, 107 Ind. 340, : s 7 
 
 Bushnell v. Crooke, etc., Co.. 12 
 
 Col. 217, 61S 
 
 Butcher v. Bank, 2 Kan. 70, 421, 670 
 
 v. Taylor, iS Kan. 55S, 7 1 
 
 Butler v. Church, etc.. 14 Bush, 540, 635 
 
 v. Glens Falls, etc.. Co.. 121 N. 
 
 Y. 112. 53° 
 
 v. Palmer, 1 Hill. 324, "i 
 
 v. Roberts. nS Ind. 4S1, 771
 
 xl 
 
 I A.BLE OF CASES 
 
 Ri /, rains are to Pages.] 
 
 Butler v. State, 97 [nd.378, 231, 
 250, 252, 257, 4.15, 517. 
 
 v. Winona Mill Co., 28 Minn. 
 205, 
 Butl v. Butt, 1 18 [nd. 31, 
 Button v. Ferguson, u End. 314, 
 
 v. Fox. 39 [nd. 
 Buzzell v. Snell, 25 N. II. 474, 
 Bybee v. State-. 94 ] nd. 1.43, 
 livers v. Hickman, 36 Ind. 359, 
 
 v. Rodabaugh, 17 la. 53, 
 
 v. Mate, jo [nd. 17, 
 Byington v. Commissioners, 37 
 
 Kan. 6c |, 
 Byne v. Smith, 76 Ga. 101, 
 Byram v. Galbraith, 75 Ind. 134, 
 Byrne v. Clark, 31 111. A pp. 651, 
 
 v. Prather, 14 La. Ann. 653, 
 
 v. Reed, 75 Cal. 277, 
 
 Caallot v. Deetken, 113 U. S. 213, 
 Cabell v. Vaughan, 1 Wm. Saund- 
 ers, 201 2, 291 k, 
 Cade v. Hatcher, 72 Ga. 359, 
 Cadman v. Markle, 76 Mich. 448, 
 Cadv v. Milwaukee, etc., Co., 5 Dak. 
 
 97". 
 Caffrey v. Dudgeon, 38 Ind. 512, 
 Cage, Ex parte,^5 Cal. 248, 
 Cain v. Goda, 94 Ind. 555, 90, 
 
 Cairns v. O'Bleness, 40 Wis. 469, 
 Cairo, etc., Co. v. Easterly, S9 111. 
 
 [56, 
 Calcrafl v. Gibbs, 5 T. R. 19, 
 Calder v. Smalley, 66 la. 219, 
 Caldwell v. Bank of Salem, 20 Ind. 
 
 2941 
 
 v. Boyd, 109 Ind. 447, 
 
 v. Bruggerman, 8 Minn. 286, 
 
 v. Colgate, 7 Barb. 2^3, 
 
 v. New jersey, etc., Co., 47 N. 
 Y. 2S2, 
 Caldwill v. Gilmore, So Ind. 42S, 
 Calev v. Morgan, iij Ind. 350, 
 Call v. Byram, 39 [nd. 499, 
 
 v. Palmer, to6 U.S. 39, 
 Callaghan, Estate of, 60 Cal. 232, 
 
 v. Portland, etc., Co., 1 7 '< )re 
 
 556, 
 Callan v. Blai k, 2 Black, 541, 
 
 v. Bransford, ro >> E. Rep. 317, 
 v. Ellison, ;} < )hio St. | l6, 
 Calo v. Railroad Co., 30 S. C. 608, 
 Calumet Iron, etc., Co. v. Martin, 
 
 115 111. 358, 
 
 Calvert v. State, 91 Ind. 473, 256, 
 
 261, 
 
 248, 
 530 
 
 675 
 506 
 
 6SS 
 53i 
 6iS 
 36S 
 101 
 646 
 306 
 
 271 
 5iS 
 78S 
 
 754 
 4 r >3 
 792 
 
 9 2 
 
 602 
 
 537 
 658 
 
 4S4 
 3° 6 . 
 5 X 9 
 124 
 
 •I s '' 
 
 769 
 
 75° 
 674 
 
 63S 
 
 71.3 
 468, 
 
 4S9 
 414 
 
 535 
 76S 
 ^73 
 7 s 1 
 389 
 224 
 
 <P 
 73 
 46 
 
 285 
 [09 
 
 273 
 
 257. 
 759 
 
 Calvo v. Railroad (S. C), 10 S. E. 
 
 Rep. 389, 
 Camblos v. Butterfield, 15 Abb. IV. 
 
 (N. S.) 197, 
 Cambuston v. United States, 95 U. 
 
 S. 2S7, 
 Camden v. Doremus, 3 How. 515, 
 Camden, etc., Co. v. Beknap, 21 
 
 Wend. 354, 
 Cameron v. Equitable, etc., Co., 13 
 
 Jones & Sp. 628, 
 
 v. Hodges, 127 U. S. 322, 
 v. W hite. 74 Wis. 425, 
 Camp v. Brown, 4S Ind. 575, 
 
 94 
 
 97 
 
 98 
 
 730 
 
 176 
 41S 
 
 655 
 
 614, 6115, 
 
 616 
 
 v. Smith, 117 N. Y. 354, 216 
 
 Campbell v. Allen, 61 Mo. 581, 159 
 
 v. Birch, 60 N. Y. 214, 402 
 
 v. Board, 118 Ind. 119, 9 
 
 v. Campbell, 121 Ind. 178, 736 
 
 v. Campbell, 22 111. 664, 430 
 
 v. Coburn, 77 Cal. 36, 682 
 
 v. Coon, 61 Ind. 516, 401 
 
 v. Dooling, 26 Ark. 647, 673 
 
 v. Dutch, 36 Ind. 504, 163 
 
 v. Dwiggins, 83 Ind. 473, 14S 
 
 v. Frankem, 65 Ind. 591, 580 
 v. Hayes, 77 Cal. 36, 675, 682 
 
 v. Howard, 5 Mass. 376, 463 
 
 v. Hunt, 104 Ind. 210, 536 
 v. City of Kalamazoo, 80 Mich. 
 
 655, r "7 
 
 v. Kent, 3 P. & W. 72, 271 
 
 v. Maher, 105 Ind. 583, 622, 7S6 
 v. Mandeville, no N.Y.628, 46, 7S 
 v. Nebeker, 58 Ind. 446, 565 
 
 v. New England Ins. Co., 22 
 Pick. 135, 
 
 v. Perkins, 8 N. Y. 430, 
 v. Roberts, 66 Ga. 733, 
 v. Routt, 42 Ind. 410, 
 v. Stakes, 2 Wend. 137, 
 v. Swasey, 1 2 [nd. 70, 
 Candy v. Hanmore, 76 Ind. 125, 
 Canfield v. Erie, 21 Mich. 160, 
 Cannon v. Pratt, 99 U. S. 619, 
 Caose Bank v. Keene, 53 Me. 103, 
 Cape Garardeau, etc., Co. v. Hat 
 
 ton, 102 Mo. 45, 596 
 
 Capital Bank v. Armstrong, 62 Mo. 
 
 59. 
 Carey v. Brown, 92 U. S. 171, 
 
 v. Butler, 1 1 Ind. 391, 
 Cargar v. Fee, 119 Ind. 536, 
 
 640 
 587 
 615 
 39 s - 6 35 
 588 
 
 633. 734 
 69 
 
 20S 
 509 
 
 577 
 
 411 
 601 
 286 
 291, 647, 
 66S 
 
 Carlisle v. Gaar, iS Ind. 177, 069 
 
 v. State, 32 Ind. 55, 27 
 
 v. Wilkinson, 72 Ind. 91, 514 
 
 Carlow v. Aultman, 28 Neb. 672, 156 
 
 Carlton v. Cummins, 51 Ind. 47S, 1S7
 
 TABLE OF CASES. 
 
 A\ ferem es are to Pages. \ 
 
 Carman v. Pultz, 21 N. Y. 547, 664 
 
 Carmichael v. Adams, 91 Ind. ^26, 17, 
 
 3 2 > 532 
 
 v. Browdcr, 3 How. ( M iss.) 252 
 
 v. Holloway, 9 Ind. 519, 
 
 v. Shiel, 21 End. 66, 
 
 v. Vandebur, 51 la. 525, 
 Carmier v. Whitaker, 36 Ind. 509, 603 
 Carnahan v. Chenoweth, 1 Ind. 
 
 A pp. 178, 
 Carne v. Truman, 105 111. 321, 
 Carnes v. Piatt, 15 Abb. Pr. (N. S.) 
 
 33 1 . 
 
 Carney v. Street, 41 Ind. 390, 
 Carothers v. Wheeler, 1 Ore. 194, 
 Carpenter's Est., In re, 79 Cal. 382, 612 
 Carpenter v. Bristol Co., 21 Pick. 
 25S, 515 
 
 v. County Commissioners, 21 
 Pick. 258, 433 
 
 v. Dame, 10 Ind. 125, 52S, 531 
 
 v. Galloway, 73 Ind. 41S, 7S6 
 
 v. Gardiner, 29 Cal. 160, 
 v. Reynolds, 58 Wis. 666, 
 v. Sigler, 47 Ind. 202, 
 
 3 1 
 3*5 
 764 
 
 458 
 
 7S1 
 16S 
 
 700 
 269 
 
 479 
 26S 
 
 v. State, 43 Ind. 371, 573, 662, 691 
 
 Stillwell, 11 N. Y. 61, 
 v. Vanscotten, 20 Ind. 50, 
 v. Wilmot, 24 Mo. App. 5S9, 
 Carpentier v. Thurst, 30 Cal. 123, 
 Carper v. State, 27 Ohio St. 572, 
 
 691 
 670 
 
 547 
 555 
 252, 
 681 
 
 732 
 
 299 
 650 
 7S8 
 53 2 
 704 
 S 2 3 
 395 
 419 
 
 Carr v. Boone, 10S Ind. 241, 
 
 v. Eaton, 42 Ind. 3S5, 
 
 v. Fife, 45 Fed. Rep. 209, 
 
 v. Gale, 1 Curt. C. C. 3S4, 
 
 v. Haskett, no Ind. 152, 479, 
 
 v. Hays, no Ind. 40S, 
 
 v. Mo'ss, S7 Mo. 447, 
 
 v. State, Si Ind. 342, 
 
 v. State, 103 Ind. 548, 
 
 v. State, 127 Ind. 204, n Law. 
 
 Rep. Ann. 370, 136, 305 
 
 v. Thomas, 34 Ind. 292, 766, 769 
 
 v. Townsend, 63 Pa. St. 202, 140 
 
 Carrick v. Lamar, 116 U. S. 423, 435 
 
 Carrico v. Tarwater, 103 Ind. S6, 154 
 
 Carriger v. Sicks, 73 Ind. 76, 637 
 
 Carrington v. Pacific, etc., Co., 1 
 
 Cal. 475, 577 
 
 Carroll, Will of, 50 Wis. 437, 626 
 
 Carroll v. Campbell, 25 Mo. App. 
 
 630, 4S1 
 
 v. Dorsey, 20 How. 204, 633 
 
 v. Little, 73 Wis. 52, 74=; 
 
 v. Peake, 2 Pet. iS, 677 
 
 v. Williston, 44 Minn. 2S7, 747 
 
 Carrollton v. Rhomberg, 7S Mo. 547, 141 
 
 Carrothers v. Carrothers, 107 Ind. 
 
 Carrott v. Jacksonville, 2 111. App. 
 4S1, 3 2 5 
 
 C arm t hers v. Me Murray, 75 la. 17 ;. 6t | 
 Carskadden v. Poorman, 10 W. & 
 
 S. S2, 
 Carson v. Henderson, 34 Kan. 404, 791 
 
 v. State, 80 Ga. 170, 252 
 
 v. Steamboat Talma, 3 Ind. 194 
 Carswell v. Crowther (Tex.), 16 S. 
 
 W. Rep. 172, 444 
 
 Cartaguino v. Belletta (Cal.), 11 
 
 Pac. Rep. 1097, 490 
 
 Carter v. Bennett, 4 Fla. 2S3, 702, 729 
 
 v. Carriger, 3 Yerg. 411, 140 
 
 v. Carter, 101 Ind. 450, 
 
 v. Ford, etc., Co.. 85 Ind 
 
 v. Pomeroy, 30 Ind.43S, 
 
 622, 7S6 
 
 1 So, 579 
 
 509, 571. 
 
 57- 
 
 v. Thorn, iS B. Mon.613, 310 
 
 Carthage, etc., Co. v. Andrews, 102 
 
 Ind. 13S, 
 Cartwright v. Howe, 1 How. iSS, 
 
 4S6 
 125, 
 
 444 
 679 
 
 77' 
 
 53°- 
 
 172, -M| 
 
 v. Yaw, 100 Ind. 119, 
 Carver v. Carver, 44 Ind. 265, 
 
 v. Carver, 77 Ind. 49S, 306, 307 
 v. Carver, 83 Ind. 36S, 293,581, 718 
 v.Carver, 97 Ind. 497, 187, 402, 411, 
 4S0, 567, 643, 690, 7S1 
 v. Carver, 115 Ind. 539, 313,314, 
 33 6 , 339. 340 
 v. Detroit, etc., Co., 61 Mich. 
 
 5S4, 6 43 
 
 v. Williams, 10 Ind. 267, 632 
 
 Cary v. Hotaling, 1 Hill. 311, 54 
 
 v: Whitney, 4S Me. 516, 127 
 
 Casad v. Hodridge, 40 Ind. 529, 397, 637 
 
 Case v. Colter, 66 Ind. 336, 582 
 
 v. Grim, 77 Ind. 565, 535 
 
 v. Johnson, 70 Ind. 31, 357 
 
 v. Kelly, 133 U. S. 21, 120,560 
 
 v. Ribelin, 1 J. J. Marsh. 29, 140 
 
 v. State, 5 Ind. 1, 250 
 
 v. State, 69 Ind. 46, 592 
 
 Case Threshing Machine Co. v. 
 
 Haven, 65 la. 359, 561 
 
 Casily v. State, 32 Ind, 62, 409 
 
 Caskey v. City of Greensburgh, 78 
 
 Ind. 233, 59° 
 
 Casper v. State. 27 Ohio, 572, 2 \<> 
 
 Cass v. Krimbill, 39 Ind. 357. 669 
 
 Cassadav v. Detrick, 63 Ind. 485, 601 
 
 v. Magher, 85 Ind. 228, 57 2 
 
 v. Miller. 106 Ind. 69, 672 
 
 Cassard v. Himmer, 6 Duer, 695, 
 
 Cassel v. Case. \\ Ind. $93, 179 
 
 v. Cooke, S S. & R. 268, 57" 
 
 Cassidy's Succession, 40 La. Ann. 
 
 827, 7 s 
 
 493 
 
 , 767 Cassidey, In re, 95 N. C. 225,
 
 xlii 
 
 TABLE OF CASES. 
 
 619 
 
 6 
 
 5°9 
 620 
 
 References 
 
 Castle Dome, etc.. Mining Co., In 
 
 re, 79 Cal. 246. 122 
 
 Castleman v. Griffin, 13 Wis. z,y^ 658 
 Castor v. Jones, 107 1ml. 2S3, 525 
 
 Castrov. United States. 3 Wall. 40, 92, 
 
 104 
 Catterlin v. City of Frankfort, S7 
 
 1 ml. 45, 2S5, 531, 619 
 Cates v.Thayer, 93 1ml. 156, 289, 7S5 
 
 v. Winter, 3 T. R. 306, 696 
 
 Cauldwell v. Curry, 93 Ind. 363, 2S5, 
 
 419, 64S 
 Cavanaugh v. Buehler, 120 Pa. St 
 
 v. Smith, S4 Ind.3So, 
 Cavazos v. Trevino, 6 Wall. 773, 
 Caw v. People. 3 Neb. 357. 
 Cecconi v. Rodden, 147 Mass. 164, 765 
 Celina, Matter of, 7 La. Ann. 162, 666 
 Center Tp. v. Board, no Ind. 579. 73, 
 282, 489, 498 
 Central Bank v. St. John, 17 Wis. 
 
 '57- 6l 5 
 
 Central R. R. Co. v. Bourbon 
 County, 116 U. S. 538. 3SS 
 
 Central Trust Co. v. Grant Loco- 
 motive Works, 135 U. S. 207, 79, 112 
 
 Central Union, etc., Co. v. State, 
 no Ind. 203, 335, 462, 403, 774 
 
 v. Andrews, 34 Kan. 503, 330 
 
 Centreville, etc., Co. v. Barnett, 
 
 2 Ind. 530, 
 Gordo v. Wright Co., 59 la. 
 
 -i s 5- 
 
 Chaffee v. Mcintosh. 36 La. Ann. 
 
 824, 
 I hamberlain v. Applegate, 2 Hun. 
 510, 
 
 v. Chamberlain, 116 111. 4S0, 
 v. Porter, 9 Minn. 260, 
 v. Reid, 49 Ind. 332, 
 
 59° 
 
 93 
 
 338 
 573 
 663 
 
 7SS 
 
 Chambers v. Butcher, 82 Ind. 50S, 301, 
 
 397: 
 
 V. Hoover, 3 Wash. Tv. 20, 
 v. Kyle, 87 Ind. 83, 162, 
 
 v. Lewis, 1 1 Alb. Pr. 206, 
 v. Lewis, 2 Hilt. (N. Y.) 591, 
 v M' .int. 66 M iss. 025. 
 v. Nicholson, 30 Ind. 349, 
 
 Chamble v. Tribbling, [6 S. C. 165, 
 run v. Portland, [9 < )re. 512, 
 
 Chamlev v. Lord Dunsaney, 2 Sri if. 
 
 Si I a I. 69O, 710. 134 
 
 Chamness v. Chamness, 53 Ind. 301, 698 
 Champ v. Kendrick (Ind.), 30 N. E. 
 
 Rep. , 7S3 
 
 Chance v. Indianapolis, etc., Co., 32 
 
 Ind. 172. 619 
 
 Chandler v. Nash, 5 Mich. 409, 7. 9 
 
 767 
 
 99 
 
 571 
 5 S 9 
 5S7 
 574 
 59 6 
 411 
 3 "J 
 
 are to Pages.] 
 
 Chandler v. Von Roeder, 24 How. 
 224, 643, 700, 
 
 Chaney v. Hughes, 13S U. S. 403, 
 Chancy v. State, 11S Ind. 494, 
 Chapell v. Sluice. 117 Ind. 481, 13, 
 
 420, 
 Chapin v. Board. 21 Ind. 12, 
 
 v. Clapp. 29 Ind. 61 1, 
 Chapize v. Bane, 1 Bibb, 612, 
 Chaplin v. Commissioners of High- 
 ways, 120 111. 264, 
 
 v. Sullivan. 1 28 I ml. 50, 628, 718, 
 Chapman v. Bank. 88 Cal. 419, 
 V. Barnes, 29 111. App. 1S4, 
 y. Barney, 129 U. S. 800, 
 v. Moore, 107 Ind. 223, 
 v. Morgan, 3 Gr. (la.) 374, 
 v. Sutton, 68 Wis. 657, 126, 129, 
 Charles River Bridge v. Warren 
 
 Bridge, 11 Pet. 420. 
 Charlestown Sch. Tp. v. Hay. 74 
 
 Ind. 127, 
 Chase v. Alley, 82 Md. 234, 
 
 v. Arctic Ditchers, 43 Ind. 74, 
 v. Bates, 81 Me. 1S2, 
 v. Blackstone, etc., Co., 10 
 Pick. 244, 
 
 v. Lee, 50 Mich. 237, 
 v. Scott. 33 la. 309, 
 Chateau v. Rice, 1 Minn. 24. 
 Chateauquay Ore cc Iron Co., Pe- 
 titioners, 128 U. S. 544, 436, 
 Chateaugay, etc., Co. v. Blake, 35 
 
 Fed. Rep. S04, 
 Chattanooga, etc., Co. v. Jackson, 
 
 S6 Ga. 670. 
 Cheatam V. State, 67 Miss. 335, 
 Check v. Glass, 3 Ind. 286, 
 Cheeky. City of Aurora, 92 Ind. 107 
 V. State, 35 Ind. 492, 619, 
 
 v. State, 37 Ind. 533. 255, 
 
 Cheever v. Minton (Col.), 21 Pac. 
 
 Rep. 710. 
 Cherry Tp. v. Marion Tp., 96 Pa. 
 
 St. 528, 
 Chesapeake, etc., Co. v. Barlow, S6 
 Tenn. 537. 
 
 v. Heath. 87 Ky. 651, 
 v. Higgins, 85 Tenn. 620, 
 V. Mackenzie (Md.), 21 Atl. 
 Rep. 690, 
 
 v. Path. 11. 9 W. Va. 648, 
 Chesround v. Cunningham, 3 Blackf. 
 
 82, 
 Chesley v. Chesley, 37 N. II. 229, 
 Chester v. Bower. ^5 Cal. 46, 
 Chestnutt v. Pollard. 77 Tex. S6, 
 
 665 
 Chicago, etc., Co. v. Abilene, etc., 
 Co., 42 Kan. 104, 
 
 702 
 
 454 
 5-i 
 
 070 
 489 
 580 
 644 
 
 29 
 
 777 
 447 
 547 
 39 2 
 73S 
 13 
 350 
 
 395 
 
 643 
 
 7S5 
 
 94 
 
 433 
 
 700 
 
 676 
 
 73 
 
 437 
 
 3 X 4 
 
 676 
 6S0 
 506 
 
 i572 
 7 S 7 
 7 s 1 
 
 495 
 
 9 1 
 
 618 
 6.33 
 
 177 
 
 734 
 679 
 
 599 
 616 
 
 53S 
 464, 
 
 ,682 
 124
 
 TABLE OF CASES. 
 
 xliii 
 
 Chicago, etc., Co 
 111. 9, 
 v. Barnes, 116 Ind. 126, 
 v. Bills, 104 Ind. 13, 
 v. Bosjys, 101 Ind. ^22, 
 
 [References a 
 Aldrich, 134 
 
 679 
 506 
 
 587 
 
 57o 
 624, 70S 
 7i 
 
 v. Burger, 124 Ind. 275. 
 v. Cameron, 120 111. 447, 
 v. Chamberlain, S4 111. t,^ 286 
 
 v. Dev, 76 la. 27S, 124. 125 
 
 v. Dey, 41 N. W. Rep. 17. 14 
 
 v. Dunleary, 27 111. App. 43S, 624 
 v. Fietsam, 123 111. 518, 623 
 
 v. Goyette, t,2 111. App. 574, 708 
 v. Greer, 9 Wall. 726, 509 
 
 v. Graney (111.), 25 N. E. Rep. 
 79S, 62S 
 
 v. Harper, 12S 111. 3S4, 770 
 
 v. Holland, 122 111. 461, 618 
 
 v. Hull, 24 Neb. 740, 492 
 
 v. Hunter, 128 Ind. 213, 521, 570 
 v. Johnson, 34 111. App. 351, 756 
 v.Jones, 103 Ind. 386, 521, 522 
 
 v. Linard, 94 Ind. 319, 598 
 
 v. Modesitt, 124 Ind. 212. 397 
 
 v. Nix (111.), 27 N. E. Rep. 81, 729 
 v. Ostrander, 116 Ind. 259, 579, 707 
 
 Peck, 112 111. 408, 
 v. Powell. 40 Ind. 37, 
 v. President, etc., 104 111. 91. 
 v. Snvder, 12S 111. 6^q, ^46, 
 
 v. Sullivan (111.), 17 N. E. Rep. 
 
 v. Summers, 113 Ind. 10, 265, 
 
 v. Watson, 105 111. 217, 
 v. Whitton, 13 Wall. 270, 
 v. Wilcox (III), 24 N. E. 
 
 4 J 9. 
 
 v. Yando, 127 111. 214. 
 
 Chicago. City of, v. Wood, 
 App. 40, 
 
 56 
 57i 
 208 
 
 547 
 
 460, 623 
 
 3 6 4, 
 566 
 ' 33 
 574 
 Rep. 
 
 661 
 164, 34S 
 
 4 111. 
 
 637 
 
 Chicester v. Cande. 3 Cow. 59, 178 
 
 Chickering v. Failes, 29 111. 294, 493 
 
 Child v. Swain. 69 Ind. 230, 520, 521 
 
 Childress v. Callender, 108 Ind. 394, 747 
 
 Chisham v. Way, 73 Ind. 362, 511 
 
 Chissom v. Barbour, 100 Ind. 1, 17S, 181 
 
 v. Lamcool, 9 Ind. 530, 54 
 
 Chittenden v. Brewster, 2 Wall. 191. | s ^ 
 
 Chouteau v. Allen. 74 Mo. ;(.. 499 
 
 v.Jupiter Iron Works. 94 Mo. 
 
 388, 
 
 Chrisman v. Melne, 6 Ind. 4S7. 
 
 Christian v. Atlantic, etc., Co., 133 
 
 U. S. 233. 596 
 
 v. O'Neal, 46 Miss. 669. 147 
 
 v. Lebeschultz. 18 S. C. 602. 681 
 
 v. State (Ga.). 12 S. E. Rep. 645. 73S 
 
 Christie v. State, 44 Ind. 40S, 530 
 
 619 
 767 
 
 re to Pages. \ 
 
 Chubbuck v. Cleveland, 37 Minn. 
 
 466, 
 Church v. Drummond, 7 Ind. 17, 
 
 v. Knightstown. 35 Ind. 177 
 
 Churchill v. Lee, 77 N. C. 341, 
 v. Welsh, 47 Wis. 39, 
 
 Churchman v. City of Indianapolis, 
 1 10 Ind. 259, 
 
 Chute v. Slate, 19 Minn. 271, 
 
 Cahall v. Citizens, etc., Associa- 
 tion, 74 Ala. 539, 
 
 Cicero v. Williamson, 91 Ind. 541. 
 
 Cicero, Town of, v. Clifford, 53 Ind. 
 I9i, 
 
 Cicero Tp. v. Picken, 122 Ind. 260, 
 
 v. Shirk, 122 Ind. 572. 
 Cincinnati, etc., Co. v. Belle Cen- 
 tre (Ohio), 27 N. E. Rep. 464, 
 v. Bunnell, 61 Ind. 1S3, ^24 
 v. Calvert. 13 Ind. 4S9, 
 v. Case, 122 Ind. 310, 
 v. Clifford, 113 Ind. 460, 
 
 282, 
 
 301. 
 592. 
 718, 
 562, 
 
 v. Gaines, 104 Ind. 526, 
 
 v. Heim, 97 Ind. 525, 
 
 v. Huncheon, 16 Ind. 436, 85 
 
 v. Leviston, 97 Ind. 4S8, 743 
 
 v. McDade, 111 Ind. 26, 45 
 
 v. McFarland,22 Ind. 459, 300, 
 
 v. Rodgers, 24 Ind. 103, 
 
 v. Rowe, 17 Ind. 568, 
 
 v. Smith, 127 Ind. 461, 
 
 v. Washburn, 25 Ind. 259, 297, 
 
 Citizens' Bank v. Bolen, 121 Ind. 
 301, 637.673.712, 
 
 Citizens' Ins. Co. v. Harris, 108 Ind. 
 392, 187,193, 
 
 Citizens', etc., Co. v. Shenango 
 Natural Gas Co., 13S Pa. St. 22, 
 
 Citizens' State Bank v. Adams, 91 
 Ind. 2S0. 517. 520, 
 
 Claflin v. Dawson, 58 Ind. 40S, 
 v. Dunne, 129 111. 241, 
 v. Farmer's Bank, 36 Barb. 540, 
 
 v. Meyer, 75 N. Y. 260, 
 Clair v. Terhune, 35 N. J. Eq. 336, 
 Clandy v. Caldwell. 106 Ind. 256, 
 Clanin v. Fagan, 124 Ind. 304. 577. 
 Clapp v. Bromaghen, 9 Cow. 530. 
 v. Freeman, 16 R. I. 344. 
 v. Hawley, 97 N. Y. 610, 91 
 
 v. Martin, 33 111. App. 438, 5S1, 
 v. Minneapolis, etc., Co., 36 
 Minn. 6, 
 
 v. Reid, 40 111. 121, 
 Claridge v. Mackenzie, 4 Man. & 
 G. 143, 
 
 6 33 
 
 7^»3 
 62 
 
 6iS 
 5i9 
 
 539 
 
 339 
 285 
 
 7-H 
 504, 
 
 7i3 
 146 
 
 630 
 525 
 77i 
 7S0 
 
 7o7, 
 770 
 712 
 
 165 
 
 86 
 
 748 
 , 46 
 7 6 4 
 554 
 669 
 
 505 
 
 718 
 
 716 
 769 
 
 6 35 
 
 567 
 
 296 
 
 176 
 "5. 
 
 547 
 ''43 
 459 
 282 
 
 703 
 
 572 
 3>9 
 .96 
 71S 
 
 692 
 349
 
 xliv 
 
 TABLE OF CASES. 
 
 A', ferences are to Pages.] 
 
 Clark v. Benefiel, iS Ind. 405, 392 
 
 v. Brown, 70 [nd. 4115, 2^2 
 
 v. Bullock. 65 Mo. 535, 4S6 
 
 v. City of Austin, $8 Mini.. 487. 640, 
 
 6 54 
 v. Clark. 7 Paige, 607, 335. 462 
 
 v. Continental, etc., Co., 57 Ind. 
 135, 149 
 
 v. Donaldson. 49 How. Pr. 63, 083 
 v. Deutsch, mm [nd. 491, 6SS, 749 
 v. Dutcher, 9 Cow. 674, $^ 
 
 v. Fitch (Neb.), 49 N. W. Rep 
 
 374. 
 
 v. Flint, 22 Pick. 231, 
 
 v. Fredericks, [05 D. S. 4, 391, 
 
 v. Gresham, 67 Miss. 203, 
 
 v. Gresham (Miss.), 7 So. Rep. 
 
 224, 
 
 v. Hershey, 52 Ark. 473, 
 
 v. Jeifersonville, etc., Co., 44 
 
 Ind. 248, 566, 
 
 66 
 
 034 
 5°9 
 
 7S 
 
 46 
 492 
 
 59o 
 
 v. Kane. 37 Mo. App. 25S, 161, 164 
 
 v. Lamb, 8 Pick. 415, 582 
 
 v. Levering, 37 Minn. 120, 732 
 v. Lilliebridge (Kan.), 26 Pac. 
 
 Rep. 43, 630 
 
 v. McCrary, So Ala. no, 755 
 
 v. McElvy, 11 Cal. 154, 577 
 v. Missouri, etc., Co., 35 Kan. 
 
 Clawsonv. Lowry,70 Blackf. 140, 
 
 350. 
 
 People, Breese (111.), 340 
 Raymond. 27 Mich. 456, 
 Rhoads. 79 Ind. 342, 
 Shaw, 101 Ind. 563, 
 Smith. 13 Pet. 195, 
 State, 87 Ala. 71,' 
 State, 4 Ind. 26S, 
 State, 125 Ind. 1, 
 
 624 
 
 7 
 
 303 
 
 536 
 
 87, 5" 
 
 53°) 679 
 251, 632 
 
 7*3> 7!9. 77i 
 
 Stephenson. 73 Ind. 489, 
 v. Trovinger, 8 Ind. 334, 
 v. Vaughan, 3 Conn. 191, 
 v. Wilson, 77 Ind. 176, 
 v. Wise, 46 N. Y.612, 
 v. Wright, 24 So. Car. 526, 
 
 [58,183, 1S4, 350 
 Clarke v. Bell, 2 Litt. [62, 207, 344 
 
 v. Matthewson, 12 Peters, 164, 
 
 I7°- J 34> 
 
 v. Sawyer. 2 N. Y. 49S, 
 \ . State. 87 Ala. 71. 
 
 Clark Civil Tp. v. Brookshire, 114 
 
 [nd. 437. 
 Clark's Cove Guano Co. v. Appling, 
 
 33 W. Va. 170. 
 Clarkson v. Guernsey, etc., Co., 22 
 
 Mo. App. 109. 
 v. Manson, 60 How. Pr. 1.5, 
 v. Meyer, 1 ( N. Y. Supp. 144, 
 Clawson v. Chicago, etc., Co., 95 
 
 Ind. 152, 
 
 535. 
 700 
 669 
 769 
 221 
 2^5 
 237. 
 
 599 
 37.43 
 604 
 294 
 190 
 126, 
 
 143 
 414 
 
 2;2 
 
 790 
 
 399 
 
 29 
 
 39S 
 614 
 
 Clay, Ex parte. 98 Mo. 57S, 
 
 v. Clark, 76 Ind. t6l, 
 Claypool v. Gish, 108 Ind. [2 [, 
 
 v. Norcross, 36 N. J. Eq. 524, 
 Clayton v. Blough, 93 Ind. 85, 
 
 279>345> 53 s - 7~4 8 
 v. State, 100 Ind. 201, 253,620 
 
 Cleave v. Milliken, 13 Ind. 105, 108 
 
 Cleveland, In re, 17 Alt. Rep. (N. 
 
 Y.) 772, 4,5 
 
 Cleveland, etc., Co. v. Asbury, 120 
 
 Ind. 2S9, " 624, 626 
 
 v. Bowen, 70 Ind. 478, 693 
 
 v. Chamberlain, 1 Black, 419, 12^, 
 
 129, 1S6 
 
 v. Closser, 126 Ind. 34S, 65, 84, 
 
 16S, 356, 697, 700 
 
 v. Newell, 104 Ind. 264, 571 
 
 v. Obenchain, 107 Ind. 591, 630 
 
 v. Vajen, 76 Ind. 146 26S, 413 
 
 v. Wynant, 100 Ind. 160, 723 
 
 v. Wynant, 119 1 nd. 539, 604 
 
 Clegg \. Fithian, 32 Ind. 90, 281 
 
 v. Patterson, t,2 Ind. 135, 2S1 
 
 v. Waterbury, 88 Ind. 21, 394. 624 
 
 Claggetl v. Sims". 31 N. II. 22, 261 
 
 Clelland v. Tanner, S Col. 252, 449 
 
 v. Walbridge, 78 Cal. 358, 769 
 
 Clem v. Clem (Ky.), 13 S. W. Rep. 
 
 102, 574 
 
 v. Commonwealth (Ky.), 13 S. 
 
 W. Rep. 102, 611 
 
 v. Martin, 34 Ind. 341, 737 
 
 v. State, 31 Ind. 4S0, 661 
 
 v. State, 33 Ind. 418, 4, 528 
 
 Clemson v. State Bank, 1 Scam. 45, 273 
 
 Clester v. Gibson, is Ind. 10, 75 
 
 Clews v. Bank, 105 N. Y.39S, 617 
 
 Clicquot's Champagne, 3 Wall. 114, 700 
 
 Climie v. Odell, 20 Mich. 12, 93 
 
 Cline v. Gibson, 23 Ind. 11, 162 
 
 v. Inlow, 14 Ind. 419, 596 
 
 v. Lindsev, no Ind. 337, 167, 
 
 50S, 571, 67S 
 
 v. Love, 47 Ind. 258, • 268 
 
 Clinton v. Phillips, 7 T. B. Mon. 
 
 118, 323 
 
 v. Rowland, 24 Barb. 634, 657, 661 
 
 Clodfelter v. Hulett, 92 Ind. 426, 163, 
 
 615, 766 
 Clore v. Mclntire, 120 Ind. 262, 67S 
 Close v. Samm, 27 la. 503, ' 539 
 
 Clough v. Curtis, 10 Sup. Ct. Rep. 
 
 573. . 5 
 
 v. Thomas, 53 Ind. 24, 601, 736 
 
 Clouser v. Clapper, 59 Ind. 548, 791 
 
 v. Ruckman, 104 Ind. 588, 767 
 
 Clowes v. Dickenson, 8 Cow. 32S, 17
 
 TABLE OF CASES. 
 
 xlv 
 
 References are to Pages.] 
 
 Cluck v. State, 40 Ind. 263, 434, 530 
 
 Clure v. Lay, 30 Ala. 20S, 4S3 
 
 Clutter v. Riddle, 1:4 Ind. 500, gi 
 
 Coan v. Grimes, 63 Ind. 21, 743 
 
 Coates v.Cunningham, 100 111. 463, 471 
 
 v. First Nat. Bank, 91 N.Y.20, 405, 
 
 414 
 
 v. Hopkins, 34 Mo. 135, 537 
 
 v. Wilkes, 94 N. C. 174, 457 
 
 Coats v. Gregory, 10 Ind. 345, 704 
 
 Cobb v. Griffith, 12 Mo. App. 130, 657 
 
 v. Malone, 91 Ala. 3SS, 678 
 
 Cobble v. Tomlinson, 50 Ind. 1550, 2S8, 
 
 784 
 Coble v. Elzroth, 125 Ind. 429, 251, 577, 
 
 740, 786 
 Coburn v. Ames, So Cal. 243, 16S 
 
 v. Murray, 2 Me. 336, 755 
 
 v. Smart, 53 Cal. 742, 6S, 114 
 
 Cochnower v. Cochnower, 27 Ind. 
 
 253, 282, 284 
 
 Cochran v. Dodd, 10 Ind. 476, 162 
 
 Cochrane v. State, 30 Ohio St. 61, 232 
 Cockrill v. Hall, 76 Cal. 192, 151 
 
 Cockrum v. West, 122 Ind. 372, 294 
 Cody v. Filley, 4 Cal. 342, 313 
 
 Coe v. Beckwith, 31 Barb. 339, 601 
 
 v. Givan, 1 Blackf. 367, 404, 791 
 Coffey v. Wilson, 2 Ala. 701, 90 
 
 Coffin v. Argo, 134 111. 276, 216 
 
 v. Edington (Idaho), 23 Pac. 
 Rep. 80, 115 
 
 v. Evansville, etc., Co., 7 Ind. 
 413, 288, 632 
 
 Coffman v. Acton, 74 la. 147, 402 
 
 Cogan v. Ebden, 1 Burr, 3S3, 5S1 
 
 Coggeshall v. State, 112 Ind. 561, 305 
 Coggswell v. Hogan, 1 Wash. 4, 92, 109 
 
 v. State, 65 Ind. 1, 637 
 
 Cohen v. Trowbridge, 6 Kan. 3S5, 633 
 Cohens v. Virginia, 6 Wheat. 264, 58, 
 
 134 
 
 Cohn v. Wright, S9 Cal. S6, 713 
 
 Coit v. Haven, 30 Conn. 190, 672 
 
 Colbert v. Rankin, 72 Cal. 197, 463 
 
 Colchen v. Ninde, 120 Ind. SS, 9S, 394, 
 
 7S3 
 
 Cole v. Allen, 51 Ind. 122, 2S4, 469, 671 
 
 v. Butler, 43 Me. 401, 147 
 
 v. Connolly, 16 Ala. 271, 462 
 
 V. Crawford. 69 Tex. 124, 575. 624 
 
 v. Driskell, 1 Blackf. t6, 640, 754 
 
 v. Fall Brook Coal Co., ^7 Hun. 
 
 585. 7SS 
 
 v. Ciourlay. 79 N. \ . 527, 514 
 
 v. Howard, 56 Ind. 330, 62 
 
 v. Kidd, No Ind. 563. 296 
 
 v. Terrell, 71 Tex. 549, 291 
 
 Colee v. State. 75 Ind. 511, 256. 691, 
 
 770, 771 
 
 Coleman v. Bell, 4 N. M. 46, 544 
 
 v. I )obbins, S Ind. 156, 271, 39. 
 v. Gilmore, 19 Cal. 340, 789 
 
 v. Kells, 31 So. Car. 601, 470 
 
 v. McAnulty, 16 Mo. 173, 140 
 
 v. Morrison, 1 A. K. Marsh. 406, 127 
 v. State, in Ind. 563, 251, 253, 
 
 255, 
 Colerick v. Hooper, 3 Ind. 316, 176. 182 
 Colglazier v. Colglazier, 124 Ind. 
 
 196, 510, 710 
 
 Colle v. State, 75 Ind. 511, 768 
 
 College Corner, etc., Co. v. Moss, 
 
 77 Ind. 139, 630 
 
 Collett v. Allison (Okl.), 25 Pac. 
 
 Rep. 516, 591 
 
 Colley v. Commonwealth (Ky.), 12 
 
 S. W. Rep. 132, 254 
 
 Collins v. Collins, 100 Ind. 266, 774 
 
 v. Davis, 32 Ohio St. 76, 356 
 
 v. Frost, 54 Ind. 242, 619 
 
 v. Gibbs, 2 Burr. S99, 396 
 
 v. Huff, 63 Ga. 207, 592 
 
 v. Lightle, 50 Ark. 97, 413 
 
 v. Loyal, 56 Ala. 403, 672 
 
 v. McDufhe, 89 Ind. 562, 374. 375 
 
 v. Maghee, 32 Ind. 268, ~^<> 
 
 v. Mitchell, 5 Fla. 364. 140 
 
 v. Nichols, 7 Ind. 447, 633 
 
 v. Seattle, 2 Wash. Ty. 354, 261 
 
 v. U. S. Express Co., 27 Ind. 11, 159 
 
 Collis v. Bowen, 8 Blackf. 262, 679 
 
 Coloma v. Eaves, 92 U. S. 484, 285 
 
 Colorado, etc., Co. v. Cowell, 6 Col. 
 
 73, r 34 
 
 v. Caldwell, 11 Col. 545, 630 
 
 Colt v. McConnell, nC> Ind. 249, 771 
 
 Colton v. Rupert, 60 Mich. 318. 155 
 
 v. Vandergolgen, 87 Ind. 361. 536 
 
 Colvig v. Klawath Co., 16 Ore. 294. 62 
 
 Colvin v. Warford, 18 Md. 273, 469 
 Columbian Ins. Co. v. Catlett, 12 
 
 Wheat. 3S3, 640 
 
 Columbus, etc., Co. v. Board, 65 
 
 Ind. 427. 9 
 
 v. Braden, no End. 558, 567 
 
 v. Gibbs, 24 So. Car. 60, 158 
 
 v. Griffin, 45 [nd. 369, 256 
 
 v. Hydraulic, etc., Co., 33 Ind. 
 
 435- S6 
 
 V. Powell, 40 Ind. 37. 61S. 689, 
 
 7S7»7 6 
 
 Combs v. State. 26 Ind. 9S. 5 
 
 v. State. 75 Ind. 215. 159, 622, 786 
 
 v. Hibberd, 45 Cal. 174. 109 
 Commercial Fire Ins. Co. v. Allen, 
 
 So Ala. 571, 622 
 Commissioners K\ parte, 112 U 
 
 S. 177. 41" 
 
 v. Clark. 94 U. S. 27S, 643
 
 xlvi 
 
 TABLE OF CASES. 
 
 References <t 
 
 Commissioners v. Hall, 7 Watts 
 (Pa.). 390, 9-37 
 
 v. Kelsey, 120 111. 483, 33 
 
 Commonwealth v. Andrews, 97 
 Mass. 543, 2 4$ 
 
 \ . Barry, 9 Allen. 276, 572 
 
 v. Brown, 123 Mass. 410, 6S1 
 
 v. Brown, 1 (7 Mass. 5S5, 529. 578 
 v. Certain IntoxicatingLiquors, 
 14S Mass. 124. 5 Sl 
 
 v. Flanagan, 7 W. .V S. 415, 528 
 v. Dandrige, 2 Va. Cas. |.o8, 7 
 
 v. Dedham, [6 Mass. 141, 251 
 
 v. Durham. 22 Pick. II, 323 
 
 v. Flanagan. 7 W. & S. 415, 528 
 
 v. Hippie.'", Pa. St. 9, 5 
 
 v.Jackson. 1 Leigh. 485, 306 
 
 v.James, 99 Mass. 438, 534 
 
 v. Lehigh Valley Co., 12 Pa. 
 St. 42.1. 102 
 
 v. Livermore, 4 Gray. iS. 528 
 
 v. Matthews (Ky.), 12 S. W. 
 Rep. 323, 239 
 
 v. McCready, 2 Metcf. (Ky.), 
 376. 249 
 
 v. McDowell, 86 Pa. St. 377, 198. 
 
 199 
 v. Meserve (Mass.), 27 N. E. 
 Rep. 997, 255 
 
 v. Mead, 153 Mass. 284, 733 
 
 v. Mosier, 135 l'a. St. 221, 677 
 
 v. Picketsoh, 5 Met. 412, $$$ 
 
 v. Powers. 109 Mass. 353, 534 
 
 v. Smith, 4 Binnev. 117, 431 
 
 v. Webster, 5 Cush. 295, 53S 
 
 v. Wetzell,84 Ky. 537. 307 
 
 v. Wickersham, 90 Pa. St. 311, 434 
 Commonwealth Ins. Co. v. Pierro, 
 
 6 Minn. 569, 124 
 
 Company of Carpenters v. Hay- 
 ward. 1 Doug. 374, 702 
 Comparet v. Hedges, 6 Blackf. 416, 64S 
 v. Southwood, 1 Kan. 143, 743 
 Compton v. Lvey, 59 Ind. 352, 398 
 v. State, 89 Ind. 338, 2^, 767, 76S 
 Comstock v. Cole. 28 Neb. 470, [51 
 Conant v. Riseborough, 30 111. App. 
 
 498, 66 
 
 Conaway v. Ascherman,94lnd.i87, 116, 
 
 171, 206 
 Concannon v. Noble, 96 Ind. 326, 116 
 Conden v. Morningstar, 94 [nd, 1 50, 536, 
 677- 698, 773 
 Cones v. Ward. 47 Mo. 289, 735 
 
 Congdon v. Congdon, 59 Vt. 597, 93 
 r v. Miller, 104 Ind. 592, 399 
 
 Conklin v. Waltz, 3 Ind. 396, 404 
 
 Conley v. Dibber, 91 Ind. 413, 511 
 
 Connard v. Christie, 16 Ind. 427, 599 
 Connell v. Putnam, 58 N. H. 335, 523 
 
 re to Pages.] 
 
 Connellev v. Leslie. 2S Mo. App. 
 55 1 ! 75 6 
 
 v. Peck, 3 Cal. 75- 5 2 3 
 
 Connelly v. Shamrock, etc., Society, 
 43 Mo. App. 283. 62S 
 
 Conner v. Citizens Rv. Co., 105 
 Ind. 62, 709 
 
 v. dimes, 49 Ind. 4S2, 075 
 
 v. Marion, 112 Ind. 517, 202, 203 
 v. Paxson, 1 Blackf. 207, 308 
 
 v. Pope, 2] Mo. App. 344, 489 
 
 v. Town of Marion, 112 Ind. 517, 6S7 
 v. Winton, S [nd. 315, 581, 768 
 
 Connecticut, etc., Co. v. Clapp, 1 
 Cush. 559, 616 
 
 v. Franklin County Commis- 
 sioners. 127 Mass. 50, 441 
 
 v. Union Trust Co., 112 U. S. 
 250, 74 6 
 
 Connohle v. Clark, 38 Mo. App. 
 486, 547 
 
 Connor v. Connor. 4 Col. 74, 134 
 
 v. People. 23 Mo. App. 344, 499 
 
 Conoway v. Weaver, 1 Ind. 263, 675, 706 
 
 Conrad v. Baldwin, 3 la. 207, 66S 
 
 v. Kinzie. 105 Ind. 281, 692 
 
 Conradt v. Clauve. 93 Ind. 476, 570 
 
 Conrow v. Schloss, 55 Pa. St. 28, 438 
 
 Consaul v. Lidell, 7 Mo. 250, 757 
 
 Conselyea v. Swift, 103 N. Y. 604, 615 
 
 Consolidated Coal Co. v. Schaefer 
 (111.), 25 N. E. Rep. 788, 559 
 
 Contee v. Dawson, 2 Bland. 264, 82 
 
 v. Pratt, 9 Md. 67. 94 
 
 Continental Life Ins. Co. v. Houser, 
 m Ind. 266, 491 
 
 v. Kessler, 84 Ind. 310, 299 
 
 Continental, etc., Co. v. Yung, 113 
 Ind. 159, 624, 686 
 
 Conwell v. Clifford, 45 Ind. 392, 6SS 
 
 Conway v. Clinton. 1 Utah, 215, 578 
 v. Day, 79 Ind. 31s, 181 
 
 v. State. 1 18 Ind. 4S2, 739 
 
 v. Vizzard, 122 Ind. 266, 577 
 
 Conyers v. Mericles, 75 Ind. 443, 179, 
 562, 565, 609 
 
 Cook v. Citizens' National Bank, 73 
 Ind. 256, 82 
 
 v. Conway, 3 Dana. 454, 273 
 
 v. Darling. 18 Pick. 393, 2S5 
 
 v. Dickerson, 1 Duer, 679, 335, 462 
 v. Doud. 14 Col. 483, 622 
 
 v. Farrah, 105 Mo. 492, 546 
 
 v. Hamilton, 67 la. 394, 54 
 
 v. Hannibal, etc., Co., 63 Mo. 397, 485 
 v. Hopkins, 66 Ind. 208, 605 
 
 v. King, 7 111. App. 549, 326 
 
 v. Knickerbocker, 11 Ind. 230, 75 
 v. McNaughton, 128 Ind. 410, 711 
 v. Skelton, 20 111. 107, 669
 
 TABLE OF CASES. 
 
 xJvn 
 
 References a 
 
 Cook v. State, 13 Ind. 154, 308 
 
 v. Wood, 24 111. 295, 1S0 
 
 Cooke v. Craw lord, 1 Tex. 9, 313 
 
 V. Williamson, 11 Ind. 242, 6S1 
 
 Cook County v. McCrea, 93 111. 236, 30 
 Cookerly v. Duncan, 87 Ind. 332, 736 
 Cool v. Peters Box, etc., Co., 87 
 
 Ind. 531, 81, 271 
 
 Coombs v. Hilbred, 43 Cal. 453, 780 
 
 Coon v. Cook, 6 Ind. 26S, 420 
 
 v. Grand Lodge, 76 Cal. 354, 97 
 
 v. McCormick, 69 la. 539, 312 
 
 v. Welborn, S3 Ind. 230, 282, 375 
 
 Cooper, In re, 22 X. Y. 67, 9 
 
 Cooper, Matter of, 93 N. V. 507, 634 
 
 v. City of Big Rapids, 67 Mich. 
 
 607, 414 
 
 v. Coates, 2 1 Wall. 105, 509, 573, 656 
 
 v. Cooper, 86 Ind. 75, 172, 174, 
 
 360, 361 
 
 v. Blood, 2 Wis. 62, 507 
 
 v. Board, 64 Ind. 520, 162 
 
 v. Breckenridge, 1 1 Minn. 341, 656 
 
 v. Hamilton, 8 Blackf. 377, 590 
 
 v. Hayes, 96 Ind. 386, 275 
 
 v. Helsabeck, 5 Blackf. 14, 589 
 
 v.Jackson, 99 Ind. 566, 563, 564 
 
 v.Johnson, 26 Ind. 247, 514 
 
 v. Mills County, 69 la. 350, 560 
 
 v. Robertson, 87 Intl. 222, 375 
 
 v. Shepardson, 51 Cal. 298, 475 
 
 v. State, 120 Ind. 377, 253, 529, 
 
 570, 578, 579, 620, 678, 791 
 
 v. Sunderland, 3 Clarke (la.), 
 
 2S6 
 
 5 2 
 
 57° 
 634 
 401 
 
 639 
 
 3 r 5 
 
 744 
 
 453 
 
 414 
 12 
 
 6 43 
 
 6S4 
 
 114, 
 Cooter v. Baston, S9 Ind. 185, 
 Copeland v. Koontz, 125 Ind. 136, 
 
 v. State. 126 Ind. 51, 
 Copley v. Rose, 2 X. Y. 115, 
 Corbett v. Citv of Troy, ^3 Hun. 
 
 22S, 
 Corey v. Lugar, 62 Ind. 00, 30S, 
 
 v. Rhineheart, 7 Ind. 291. 
 Corinne, etc., Co. v. Johnston, 5 
 
 Utah, 147. 446, 
 
 Corn v. City of Cameron, 19 Mo. 
 
 A-pp. 573 
 Cornett v. Williams, 20 Wall. 226, 
 Corning v. Troy, etc., Co., 44 N. Y. 
 
 577. 
 
 v. Woodin, 46 Mich. 44, 
 Cornwall v. Davis, 3S Fed. Rep. 
 
 S78, 
 Corry v. Caulfield, 2 Ball & Beatty, 
 
 2 55i 
 Cort v. Birheck, 1 Doug. 218. 
 Cory v. Silcox, 6 Ind. 39, 534, 
 
 Coryell v. Stone, 62 Ind. 307, 531, 
 Corwin v. Thomas, 83 Ind. no, 
 Cosgrove v. Cosby, S6 Ind. 511, 
 
 J 34 
 644 
 678 
 782 
 1S1 
 769 
 
 re to Pages, .] 
 
 Coster, Ex parte, 7 Cow. ^23, 
 
 v. Peters, 7 Rob. (N. Y.) 3S6, 
 Cotes v. Carroll, 28 How.Pr. 436, 138, 
 Cothren v. Connaughton, 24 Wis. 
 
 134. 3 2 3. 
 
 Cottle v. Cottle, 6 Greenl. 140, 620, 
 Cottrell v. /fDtna Life Ins. Co., 07 
 Ind. 311, 527, 
 
 v. Cottrell, 81 Ind. 87, 
 v. Cottrell, 126 Ind. 181, 
 v. Nixon, io<; Ind. 37S, 19, 113, 
 v. Shadley, 77 Ind. 348, 
 Cotzhausen v. Simons. ^7 Wis. 103, 
 Coulter v. Coulter, 8l Ind. 542, 
 County Ct. of Warren v. Daniel, 2 
 
 Bibb. 573, 
 Courtney v. Courtney (Ind.), 
 Courts of Lancaster, In re, 4 Pa. 
 
 L. Jr. Rep. 315, 
 Couse v. Havens, 44 Ind. 2S2, 
 Couts v. Neer, 70 Tex. 46S, 
 Coverdale v. Alexander, 82 Ind. 503, 
 Covert v. Shirk, 58 Ind. 264, 
 Covington, etc., Co. v. Moore, 3 
 
 Ind. 510, 
 Cowan v. Kinney, 33 Ohio St. 422, 
 Cowdin v. Teal, 67 N. Y. 5S1, 
 Cowell v. Buckelen, 14 Cal. 640, 
 Cowgill v. Long, 15 HI. 202, 
 Cowles v. Robinson, 11 Cal. 5S7, 
 
 Cox v. Albert, 78 Ind. 241, 394, 
 
 v. Baker, 113 Ind. 62, 
 v. Dill, S 5 Ind. 334, 
 v. Gress, 51 Ark. 224, 
 v. Harvey, 53 Ind. 174, 
 v. Hunter, 79 Ind. 590, 
 v.James, 45 N. Y. 557, 
 v. Louisville, etc., Co. (Ky.), 11 
 S. \V. Rep. 808, 
 
 v. Macy, 76 Iowa, 316, 
 v. Pruitt, 25 Ind. 90, 37S, 
 
 v. State, 49 Ind. 568, 
 v. United States,' 6 Pet. 172, 
 v. Yickcrs, 35 Ind. 27. 
 Coxe v. Deringer, 82 Pa. St. 236, 
 
 v. Field. iGr. (X. J.). 215, 
 Covkendall v. Way, 29 Minn. 162, 
 Coyle v. Crew, 34 La. Ann. 339, 
 Coyner v. Boyd, 55 Ind. 166, 
 Crabs v. Mickle, 5 Ind. 145, 412, 
 
 Crabtree v. Hagerhaugh. 23 111. 349, 
 Craddick v. Pritchett, Peck (Tenn.), 
 
 17. 
 Craft v. Dalles City (Ore.), 27 Pac. 
 Rep. 163, 
 
 v. State Bank, 7 Ind. 219, 
 Craig v. F.ncey, 78 Ind. 141, 
 
 v. Fanning, 6 How. Pr. 336, 
 v. Frazier, 127 Ind.2S6, 684,689, 
 
 435 
 497 
 
 '5- 
 
 7S0 
 
 *.2I 
 
 5S7 
 53S 
 
 718 
 
 sSo 
 
 181 
 
 440 
 3° 
 
 40 
 446 
 610 
 414 
 3*3 
 
 592 
 
 732 
 210 
 
 434 
 61 
 
 610 
 419 
 
 779 
 698 
 178 
 7SS 
 394 
 593 
 
 4S9 
 161 
 494 
 255 
 119 
 
 4°3 
 677 
 267 
 82 
 3*3 
 >P 
 550, 
 
 73i 
 619 
 
 93 
 
 762 
 102 
 
 339 
 
 7S8 
 
 747
 
 xlviii 
 
 rABLE OF CASKS. 
 
 [References a 
 Craighead v. Wilson, i8 How. 199, 73 
 Cralle v. Cralle, Ji \ a. 773, 459 
 
 v. Cralle, s | Va. 198, 489 
 
 Crandall v. Firsl National Bank, 
 
 61 Ind. 349, 
 Crane. Ex parte. 5 Pet. [1 
 v. Andrews, [0 Co 
 v. Crane, 12 Conn. 
 v. Farmer, 14 Col. 294. 
 v. Farmer (Col.), 23 Pac 
 455 
 
 3 IO > 
 
 Kimmer, 77 End. 215, 
 v. Giles, 3 Kan. 54, 
 v. Reeder, jN Mich. 527. 
 Crank v. Flowers,4 Heisk. 629, 6 
 Cranor v. School District, iS Mo. 
 
 761 
 
 43 s 
 
 339 
 
 9 
 
 111, 160 
 
 Rep. 
 
 14, 7 S 
 
 2S4, 672 
 
 iS 
 
 7- 
 
 7- 
 
 757 
 69, 84 
 
 4S3 
 56S 
 
 . E. 
 
 159, 16S 
 
 59 6 
 
 7S8 
 
 263 
 712 
 
 99 
 4S2 
 
 733 
 
 566 
 630 
 472 
 
 A.pp. 397. 
 Cravens v. Chambers, 55 Ind. 5. 
 
 v. Duncan, 55 Ind. 347, 
 Crawford, In re, 11.; X. Y. 560, 
 v. Anderson (Ind.), 2S N 
 Rep. 314. 
 
 v. Crockett. 55 Ind. 220, 
 v. Georgia, etc., Co., 8S Ga. 5, 
 v. Kansas City, etc., Co., 45 
 Kan. 474, 
 
 \ . Powell, coi I nA. 421, 
 V. Prairie, etc.. Co.. 44 Ind. 361, 
 v. Wingfield, 25 Tex. 414. 
 v. Witherbee, 77 Wis. 419, 
 Crawfordsville, City of, v. Brund- 
 age, 57 Ind. 262, 
 
 v. I lays. 42 I ml. 200, 
 v. Johnson, 51 Ind. 397, 
 Cray v. State. 32 Ind. 384, 250 
 
 Creamer v. Sirp, 91 Ind. 366, 348, 75S 
 Credit Foncier v. Rogers, 10 Neb. 
 
 [84, 672 
 
 Credit Co. v. Arkansas, etc., Co., 
 
 128 U. s. 258, 97, 104 
 
 Creech V. Richards. 76 Ga. 36, 785 
 Creely v. Bay State, etc., Co., 103 
 
 Mass. 514," 593, 594 
 
 Creighton v. Kerr. 20 Wall. 204, 633 
 
 Crih \. Morse, 79 Wis. 193, 490 
 v. Waycross, etc., Co., S2 Ga. 
 
 597. 6 3 6 
 
 Crich v. Williamsburgh, etc., Co., 
 
 45 Minn. 1 1 1. ^ 582. 655 
 
 Crippen v. Morss, 49 N. Y. 63, 411 
 
 Crisfield v. Murdock, [27N.Y.315, 734 
 Crispen \. Hannovan, 86 Mo. too, 494 
 Crisman v. Masters, 23 Ind. 319, 375 
 Critchell v. Brown, 72 Ind. 539, 124. 
 
 I54.3 2 3 
 Crutchfield v. Richmond, etc., Co., 
 
 76 N. C 57- 
 
 Crittenden v. Methodist, etc., 
 
 Church. 8 How. Pr. 327, 74 
 
 Crocker v. Carrier. 65 Wis. 662, 745 
 
 re to Pages.] 
 
 Crocker v. Dunkin, 6 Blackf. 535. 286 
 Cromelien v. Brink, 29 Pa. St. 522, 681 
 Cromwell v. Lowe. 14 Ind. 234. 43 
 
 Cronk v. Cole. 10 Ind. 485, 635 
 
 Crookshank v. Kellogg, b Blackf. 
 
 480, 616 
 
 Crosby v. McDermitt, 7 Cal. 146, 483 
 
 Cross v. Moulton, 15 Johns. 469, 528 
 
 \. Pearson, 17 Ind. 612, 616,747 
 
 V. People. 47 111. 152, 251, 308 
 
 v. State, 55 Wis. 261, 780 
 
 v. Tuesdale, 28 Ind. 44, 597 
 
 v. Wilson, ^2 Ark. 312, 156 
 
 Crottv v. Wyatt, 3 Bradw. 3SS, 533 
 
 Crouse v. Holman, 19 Ind. 30, 596 
 
 v. Rowlev. 3 X. Y. Supp. S63, 678 
 
 Crow y. Board, 11S Ind. 51, 62 
 
 \ . Edwards, I lob. 5 b., 424 
 
 Crowder v. Reed. So Ind. 1. 397-399 
 
 Crowell v. City of Peru. 47 Ind. 308, 675 
 
 \. Harvey, 30 Neb. 570, 7S8 
 
 v. Western, etc.. Bank, 3 Ohio 
 
 St. 406, 733 
 
 Croweley v. Pendleton, 46 Conn. 
 
 62, 7S5 
 
 Croy v. State. 32 Ind. 384, 527 
 
 Crum v. Elliston, 32 Mo. App. 591, 650 
 Crume v. Wilson, 104 Ind. 583, 217 
 
 Crumley v. Hickman, 92 Ind. 3SS. 319, 
 
 766, 771 
 Crumley v. McKinney (Tex.), 9 
 
 S. W. Rep. 157. 314 
 
 Crump v. Morgan, 3 Ired. Eq. 91. 519 
 Cruzan v. Smith, 41 Ind. 28S, 715, 724. 
 
 74S 
 Cuhherlv v. Wine. 13 Ind. 3^3, 295 
 
 Cuddy, In re. 131 U. S. 2S0, S8 
 
 Culbertson v. Hill, 87 Mo. ^^, 792 
 
 Culph v. Philips. 17 Ind. 209, 420 
 
 Cumberland Coal, etc., Co. v. Sher- 
 man. 20 Md. 117, 492 
 Cumings v. Mayor. 11 Paige, 596, 30 
 Cummings v. Armstrong. 34 W. 
 Va. 1. 43 8 - 440 
 v. Mayor. 11 Paige, 596, 593, 594 
 V. McKinney, 5 111. 57, 696 
 Cuneo v. Bessoni, 03 Ind. 524. 113 
 Cunard Steamship Co. v. Voorhis, 
 
 104 I ml. 525, 191 
 
 Cunningham v. Ashley, 13 Ark. 653, 489 
 
 v. Gallagher, 6i Wis. 170, 615 
 
 v. Jacobs, 120 I ml. 306, 306 
 
 v. McKindley, 22 Ind. 149, 589 
 
 v. Smithson,i2 Leigh. (Va.)32, 556 
 
 v. State. 65 Ind. 377, 572 
 
 v. Thomas, 25 Ind. 171, SS, 390 
 
 Cupp v. Campbell. 103 Ind. 213, 401, 403 
 
 Curan's Case. 7 Gratt. 619, 528 
 
 Curm v. Rauh. 100 Ind. 247. 535 
 
 Curran v. Curran, 40 Ind 473, 404
 
 TABLE OF CASES. 
 
 :lix 
 
 I References a 
 Curry v. Bratnev, 29 Ind. 195, 698, 731 
 v. Miller, 42 End. 320, 418 
 
 Curten v. Atkinson, 29 Neb. 612, 116, 
 
 122, 13S 
 
 Curtis v. Gooding, 99 Ind. 45, 599 
 
 v. Root. 2S 111. 367, 334 
 
 Curtiss v. Hazen, 56 Conn. 146, 402 
 
 Cushman v. Flanagan, 50 Tex. 3S9, 525 
 
 Cuthrell v. Cuthrell, 101 Intl. 375, 702 
 
 Cutler v. Evans, 115 Mass. 27, 31S 
 
 v. State, 62 Ind. 39S, 374, 446 
 
 Cutsinger v. Nebeker, 5S Ind. 401, 489 
 
 Cutter "v. Gumberts, 3 Eng. (Ark.) 
 
 449, 7i 
 
 D 
 
 D. R. Morton, 91 U. S. 365, 78 
 
 D'Overnois v. Leavitt, 8 Abb. Pr. 
 
 59. 6 39 
 
 Dabbs v. Dabbs, 27 Ala. 646, 560 
 
 DaCosta v. Guien, 7 S. & R. 462, 192 
 Daegling v. Illinois, etc., Co., 33 111. 
 
 App. 341, 57o 
 
 Daggett v. Flanagan, 78 Ind. 253, 517, 
 
 520 
 Dahl v. Milwaukee, etc., Co., 65 
 
 Wis. 371, 7^o 
 
 Dailey v. Indianapolis, 53 Ind. 4S3, 45 
 v. Knisler (Neb.), "47 N. W. 
 
 Rep. 1045, 596 
 Daily v. National, etc., Co., 64 Ind. I, 404 
 
 v. State, 10 Ind. 536, 408 
 Dakota County v. Glidden, 113 U. 
 
 S. 222, 125 
 
 Dale v. Copple, 53 Mo. 321, 63 
 
 v. Kent, 58 Ind. 584, So 
 v. Pruins (Cal.), 20 Pac. Rep. 
 
 296, 266 
 
 v. See, 51 N. J. L. 378, 610 
 Daley v. American, etc., Co., 150 
 
 Mass. 77, 612 
 Dalrymple v. Williams, 63 N. Y. 
 
 361, 581 
 
 Damouth v. Klock, 2S Mich. 163, 74 
 
 Damp v. Dane. 29 Wis. 419. 392 
 
 Dane v. Treat, 35 Me. I9S, 700 
 
 Danes v. Pettit, 11 Ark. 349, 161 
 Daniel v. Warren County, 1 Bibb. 
 
 49 6 > 434 
 
 Daniels v. Brodie, 54 Ark. 216, 416, 
 
 v. McGinnis, 97 Ind. 549, 
 
 v. Tearney, 102 U. S. 415, 
 Danielson v. Gude, 11 Col. 87, 
 Danks v. Rodeheaver, 26 W. 
 274, 200, 
 
 Danlay v. Edwards. 29 Miss. 41 
 
 v. Robbins, 3 Ark. 144. 
 Dantz v. State. ^7 Ind. 398, 
 D 
 
 57-- 5 
 
 55 1 
 373- 
 5S1 
 
 Va. 
 274. 
 
 4 r 5 
 637 
 
 754 
 611 
 
 7S9 
 
 409 
 
 n to Pages.) 
 
 Danville, etc., Co. v. State, 16 Ind. 
 
 '45 6 » 
 Darby v. Ousclcy, 36 Eng. L. & 
 
 Eq. qiS, 
 Darland v. Rosencrans, 56 la. 122, 
 Darlington v. Warner, 14 Ind. 449, 
 Darnall v. Hurt, 55 Ind. 275, 
 Darr v. State, 82 Ind. II, 241. 
 
 Darrell v. Ililligoss, etc., Co., 90 
 
 Ind. 264. 
 Darst v. Bates, 51 Hill, 439, 
 Dart v. Dart, 32 L. J. P. M. & A. 
 
 125, 
 Darwins v. Durker, 14 Ore. 37, 
 Dashing v. State, 78 Ind. 357, 
 Davenport City v. Dows, 15 Wall. 
 
 39°> 
 Davenport v. Alpin, 70 Mich. 192, 
 
 v. Barnett, 51 Ind. 329, 
 
 v. Fletcher. 16 How. U. S. 142. 
 
 v. Harris, 27 Ga. 68, 657, 
 
 v. Russell, 5 Day, 145, 
 David v. Calloway, 30 Ind. 112, 
 
 v. Leslie, 14 la. S4, 
 Davidson v. Bates, in Ind. 391, 
 
 v. City of New Orleans, 32 La. 
 Ann. 12415, 
 
 v. Farrell, 8 Minn. 258, 
 
 v. Henop, 1 Cranch. C. C. 2S0, 
 
 v. King, 49 Ind. 33S, 285, 
 
 v. King, 51 Ind. 224. 
 
 v. Morrison, 86 Ky. 397) 
 
 v. Murphy, 13 Conn. 213, 
 
 v. Peck. 4 Mo. 438, 
 
 v. State, 20 Fla. 784, 
 
 v. State. 62 Ind. 276, 
 Davie v. Davie. 52 Ark. 221, 64, 66 
 Daviess v. Arbuckle. I Dana. 525, 
 Davis' Est., In re (Mont.), 27 Pac. 
 
 Rep. 342, 
 Davis v. Bargus, 41 La. Ann. 313, 
 
 v. Beason, 133 U. S. t,?,^ 
 
 v. Binford, 58 Ind. 457. 162. 
 
 v. Binford, 70 Ind. 44. 126, 2S7, 
 
 \ . Byrd, 94 Ind. ;2;, 
 
 v. Calvert, 5 Gill. .V J. 269, 
 
 v. Charles River, etc., Co., n 
 Cush. 506, 
 
 v. Crouch. 94 U. S. 514, 
 
 v. Curtis. 70 la. 39S, 
 
 v. Daverill, n Mil. 141. 
 
 v. 1 )a\ is, 7'> Ind. [60, 
 
 v. Donner, 82 Cal. ;;. 
 
 v. Durham. 13 How. Pr. 425. 
 
 v. Elliott, 15 Graj . 90, 
 
 v. Franklin, 25 Ind. 407 
 
 v. Green, 57 Ind. 493, 
 
 v. Hardy. 76 Ind. 272. 596. 
 
 v. Henson, 29 Ga. 345. 
 
 v. Hudson. 29 Minn. 27, 
 
 59 2 
 617 
 
 H5 
 
 521 
 
 72 
 
 10 
 20S 
 
 735 
 
 3S8 
 
 546 
 596 
 
 137 
 61 1 
 
 58S 
 
 666 
 10S 
 
 490 
 
 675 
 615 
 
 72S 
 
 7-7 
 412 
 161 
 769 
 592 
 758 
 • 75 
 616 
 
 64 
 
 7S 
 
 SS 
 
 769 
 
 45i 
 
 699 
 
 702 
 
 499 
 489 
 
 622 
 
 '"'7 
 
 713 
 563 
 
 7S6 
 
 421
 
 ! 
 
 TAl'.LE OF CASES. 
 
 393 > 
 6.w, 
 
 266, 
 
 728 
 785 
 554 
 IS 6 
 
 -77 
 451 
 621 
 
 9 
 
 517 
 754 
 761 
 
 3 12 
 
 References 
 
 Davis v. Jenkins, 14 End. 57-. 1S3 
 
 v. Liberty, etc., Co., 84 [nd. "56. 567, 
 
 '57- 
 v. Mayor, r I )uer, 151, 63 
 
 v. Montgomery, 123 Ind. 5S7, 296, 
 
 790 
 v. Perry, 41 I ml. 305, 
 v. Pool, 67 Ind. 4-' 5, 297 
 v. Reamer, 105 I nd. 318, 
 v. Robinson, 70 Tex. 394, 
 v. Scott, 13 Ind. 506, 
 v. Speiden, 104 U. S. 83, 
 v. State. 35 Ind. 496, 
 v. State, [19 Ind. 555, 
 v. State, 15 Ohio, 72, 
 v. State, 75 Tex. 420, 
 v. State, 14 Tex. App. 645, 
 v. Sturgis, 1 Ind. 213, 
 v.Town ofFarmington, 42 Wis 
 425, 5 so, 625 
 
 v. Town of Fulton, 52 \\ is. (157, 567 
 v. Vaughan.7 Rich.(S.C) 342, 91 
 
 I )a\ is County v. 1 lorn, 4 Gr.(Ia.) 94, in 
 
 Davis Henderson Lumber Co. v. 
 Gottschalk, Si Cal. 641, 132 
 
 Daubenspeck v. Daubenspeck, 44 
 Ind. 320, 785 
 
 Daugherty v. Deardorf, 107 Ind. 527, 598 
 
 Daunhauer v. Hilton, 82 Ind. 531, 266, 
 
 279, 296 
 
 Dawson v. Baum, 3 Wash. Ty. 464, 782, 
 
 789 
 v.Coffman,28Ind.22o, 218,782, 7S6 
 v. Dawson, 20. Mo. App. 521, 669 
 v. Hemphill, 50 Ind. 422, 784 
 
 v. Shirk, 102 Ind. ^43, ,26, 532, 624, 
 
 71S 
 v. \\ ilson, 79 Ind. 485, 
 v, Wisner, n la. 6, 
 
 Day v. Callow, 39 Cal. 593, 
 v. Day, 100 Ind. 400, 
 v. 1 Ienry, 104 Ind. 324, 
 v. 1 luntington, 78 Ind. 2S0, 91, 92, 
 
 349, 35 1 . 3 62 
 v. Patterson, 18 Ind. 114, 
 \. School Citv of Huntington, 
 78 Ind. 2S0. 
 
 v. Wright. 104 Ind. 324, 
 Deacon v. Schwartz, 18 Ind. 2S5, 
 Deal v. Holter, 6 Ohio St. 22S, 
 Dean v. Georgia, etc., Co., 79 Ga. 
 211, 
 
 v.Jones, 27 Mo. App. 350, 
 
 v. Miller. 66 Ind. 440, 
 
 v. Thatcher, 3 Va. 470, 
 Dearborn v. Patton, 4 Ore. 58, 
 Deardorfv. Ulmer, 34 Ind. 353, 
 Dearmond v. Dearmond, 12 Ind. 455, 514 
 I >t- Armond v. Adams. 25 Ind. 455, 281 
 
 v. Glasscock, 40 Ind. 418, 784 
 
 271 
 560 
 146 
 
 iSS, 191 
 7°3> 735 
 
 599 
 
 45° 
 739 
 628 
 650 
 
 5iS 
 
 447 
 670 
 
 672 
 [61 
 
 306 
 
 arc to Pages.] 
 
 De Armond v. Stoneman, 63 Ind. 
 
 3S6, 60S 
 
 Deas v. Thome, 3 John. 543, 457 
 
 Deatly v. Potter. 29 Mo. App. 222. 124 
 Deatty v. Shirley, S3 Ind. 21S, 292, 
 
 293. 719, 7S6 
 De Barry-Baya, etc., Co. v. Aus- 
 tin, 76 Ga. 306, 297 
 Debolt \. Carter, 31 Ind. 355, 604 
 Decatur y. Paulding. 14 Pet. 497, 435 
 Decatur Bank v. St. Louis Bank, 21 
 
 Wall. 294, 573 
 
 Decker v. Bryant, 7 Barb. 182, 657, 66] 
 Deen v. Hemphill, Hempst. 154, 324 
 Deere, etc., Co. v. Ilucht, 32 Mo. 
 
 App. 153, ' 101 
 
 Deer Lodge v. Kohrs, 2 Mont. 66, 217 
 Deery v. Cray, 5 Wall. 795, 573, 614 
 
 v. Cray, 10 Wall. 263, 571 
 
 Deeter v. Sellers, 102 Ind. 458, 712 
 
 Deford v. Urbain, 42 Ind. 476, 368, 446 
 De Forest v. Thompson, 40 Fed. 
 
 Rep. 375, 596 
 
 De France v. De France, 34 Pa. St. 
 
 3 8 5. 702 
 
 De Grafrenreid v. Thomas, 14 Ala. 
 
 6S1, 701 
 
 De Groot, Ex parte, 6 Wall. 497, 439 
 De Hart v. Aper, 107 Ind. 460, 792, 793 
 Dehart v. Dehart, 15 Ind. 167, 420 
 
 De Hart v. Etnire, 121 Ind. 242, 620 
 De I laven v. De Haven, 77 Ind. 236, 361 
 Dehority v. Nelson, 56 Ind. 414, 680, 715 
 Deig v. Moorhead, no Ind. 451, 215, 
 
 529, 5''" s 
 Deitch v. Demott, S9 Ind. 601, 266, 268 
 De Johnson v. Sepulbeda, 5 Cal. 149, 554 
 De La Hunt v. Holderbaugh, ^S 
 
 Ind. 285, 63S 
 
 De Lashnutt v. Sellwood, 10 Ore. 
 
 51, 20S 
 
 Delaney v. Gault, 30 Pa. St. 63, 147, 2S5 
 Delaplaine v. Lawrence, 10 Paige, 
 
 602, 115 
 
 Delayney v. Fox, 2 C. B. N. S. 768, 34 
 Delcep v. Hunter, 1 Sneed, 100, 74 
 
 Deleaney v. Brett, 51 N. Y. 78, 414 
 
 Delhaney v. State, 115 Ind. 499, 678 
 Delonde v. Carter. 28 Ala. 541, 116 
 
 Delphi, City of, v. Lowery, 74 Ind. 
 
 520, ' 4S6, 729, 730 
 
 Demerritt v. Randall, 1 16 Mass. 331, 537 
 Demetz v. Benton, 35 Mo. App. 559, 547 
 Dempsey v. ■ Mayor, 10 Daly, 417, 625 
 Demskev. Hunter, 2^ Mo. App. 466, 762 
 Den v. Graham, 1 Dev. ..V Batt. 76, 666 
 Denby v. Hart, 4 Blackf. 13, 392 
 
 Deneale v. Archer, 8 Pet. 526, 137 
 
 Denman v. McMahin, 37 Ind. 241, 297, 
 
 6 35
 
 TABLE OF CASES. 
 
 \Referen 
 
 Dennis v. Louisville, etc., Co., 116 
 Ind. 42, 
 
 v. Maxfield, to Allen, 13S, 
 Dennison v. Talmage, 29 Ohio St. 
 
 433- 
 
 Denny v. Denny, 113 Ind.' 22, 
 
 v. Moore, 13 Ind. 41S, 
 Denton v. Woods, 86 Term. 37, 
 Denver, etc., Co. v. Cowgill (Kan.), 
 
 24 Pac. Rep. 475, 
 Denver v. Pearce, 13 Col. 383, 
 De Pew v. Robinson, 95 Ind. 109, 
 De Priest v. State, 6S Ind. 569, 
 Deputy v. Hill, 85 Ind. 75, 
 
 v. Mooney, 97 Ind. 403, 
 Dequindre v. Williams, 31 Ind. 444, 
 
 670, 
 Derrick v. Emmens, 38 N. Y. Rep. 
 
 481,, 
 Detnck v. McGlone, 46 Ind. 291, 
 Detro v. State, 4 Ind. 200, c; 14, 
 
 Des Moines, etc., Co. v. Polk 
 
 County, etc., Co. (la.), 45 N. W. 
 
 R ep- 773* 
 De Sylva v. Henry, 3 Porter, Ala. 
 
 !3-' 
 
 Deveemon v. Shaw, 70 Md.219, 
 Devereux v. Champion Cotton 
 Mills, 17 So. Car. 66, 16S, 
 
 Devlo v. State, 4 Ind. 200, 
 Devol v. Mcintosh, 23 Ind 529, 
 Devoss v. Jay, 14 Ind. 400, 
 Devot v. Marx, 19 La. Ann. 491, 
 Dewey v. Greene, 4 Denio, 93, 
 
 v. State, 91 Ind. 173, 520, 
 
 Dewitt v. Prescott, 51 Mich. 29S, 
 De Wolf v. Hayden. 24 111. 525, 
 Dexter v. Codman, 14S Mass. 421, 
 Dial v. Dial, ^3 S. C. 306, 
 Dihblee v. Sheldon, 10 Blatch. 17S, 
 Dibrell v. Eastland, 3 Verg. 507, 
 Dick v. Kendall, 6 Ore. 166, 
 
 v. Mullins, 128 Ind. 365, 452, 
 
 70S 
 545 
 
 224 
 59° 
 
 560 
 
 266 
 
 666 
 102 
 
 53 1 
 
 7S7 
 261 
 
 5 2 5 
 
 1 -', 
 672 
 
 6 53 
 533 
 5i8 
 
 v. W T illiams, 130 Pa. St. 41, 
 Dickinsheets v. Kaufman, 29 Ind. 
 
 '54- 129, 
 
 Dickey v. Davis, 39 Cal. 565, 
 
 v.* Shirk, 12S Ind. 278, 
 Dickerson v. Chrisman, 28 Mo. 134, 
 
 v. Hays, 4 Black f. 44. 
 
 v. Turner. [5 Ind. 4. 
 Dickinson v. Coulter, 45 Ind. 44^, 
 
 v. Dickey. 76 X. Y. 602, 
 Dickson, Ex parte, 64 Ala. 188, 
 Dickson v. Chicago, etc., Co., Si 
 111. 215, 
 
 v. Lambert, 98 Ind. 487, 
 
 624 
 
 l 3- 
 4i3 
 
 508 
 
 252 
 597 
 493 
 793 
 631 
 
 73t> 
 697 
 
 4S3 
 1 12 
 446 
 5 S 9 
 34 1 
 1 12 
 
 755- 
 77i 
 
 55" 
 
 350 
 510 
 
 708 
 
 557 
 630 
 648 
 509, 
 568 
 190 
 
 5 r 9 
 
 555 
 75° 
 
 arc /o Pages\ 
 
 Dickson v. Rose, S7 Ind. [03, 200, 71; 
 
 71 s - TV i 
 Diehl v. Ohrie, 3 Whan. (Pa.) 143, 102 
 Dietrich v. Kock, 35 Wis. 618, 39S 
 
 Diffendal v. Virginia, etc., Co., 86 
 
 V'a. 459, 
 Dikeman v. Struck, 70 Wis. 332, 
 Dill v. O'Farrell, 45 I ml. 268, 
 
 v. Lawrence, 109 Ind. 564, 
 Dillard v. Central, etc., Co., 82 Va 
 
 59 1 
 630 
 566 
 
 ^3 l 
 
 734 
 Dille 
 
 v. Lovell, 37 Ohio St. 415, 
 
 \ . State. 34 Ohio St. 617, 
 Dillingham v. Russell, 73 Tex. 47, 
 
 v. Skein, Hempst. 181, 
 Dillman v. Dillman, 90 Ind. 5S5, 
 Dillon v. Bell, 9 Ind. -n. 
 
 v. Cockcroft, 90 N. Y. 649, 
 v. Connecticut, etc., Ins. Co., 
 44 Md. 3 S6, 
 Dimick v. Campbell, 31 Cal. 23S, 
 Dingle v. Swain, 15 Col. izn. 
 Dingier v. Strawn. 36 111. App.563, 
 Dinwiddie v. State, 103 Ind. 101, 
 
 66 
 615, 
 68] 
 
 534 
 °57, 
 
 3^3 
 
 221 
 
 x 97 
 
 55" 
 
 82 
 16S 
 63S 
 
 3*4 
 128, 
 
 54 s , 549 
 760 
 
 v. Jacobs, 82 Mo. 195, 
 Dismore v. Atlantic, etc., Co., 46 
 
 How. Pr. 193, 
 District of Columbia v. McBlair, 
 124 U.S. 320, 
 
 v. Woodbury, 136 U. S. 450, 
 
 Diveny v. City of Elmira, 51 N. 
 
 Y. 506, ' 529. 
 
 Dix v. Akers, 30 Ind.431, 597,790, ,. 
 
 Dixon v. Caldwell. 15 Ohio St. 412, 215 
 
 v. Dixon, 19 la. 512, ^2; 
 
 v. Dukts, S5 Ind. 434, 70S, 709, 710 
 
 601 
 
 491 
 738 
 
 53° 
 
 79' 
 
 v. Hill, S Ind. 147 
 
 v. Judge, 4 Mo. 286, 
 Doane v. Glenno, 21 Wall. ^, 
 Dobbins v. Baker, 80 Ind. 52, 12 
 
 43 
 
 \3" 
 755 
 *54i 
 361 
 551 
 5'7 
 95 
 495 
 293, 
 
 Doctor v. I [artman, 74 Iiul. 
 
 v. Oswalt, 20 Ark. 619, 
 
 V. State. 14 Ohio St. 493. 514 
 
 Dobson v. Dobson, 7 Neb. 296, 
 
 \ . Simonton, 100 N.C. 56, 
 
 Dockertv v. Huston, 125 Ind. 102, 
 
 626, 648 
 
 ■5- 5"-- 
 
 t-x , , 444- 75 1 
 
 Dodd v. Bowles, 3 Wash. Tv. 11, 440 
 
 v. Moore. 9] Ind. 522, 689 
 
 Dodds v. V annoy, 61 Ind. 89, 637, 70.' 
 
 Dodge v. Coffin, 15 Kan. 277, <>-- 
 
 v. Cole, 97 111. 33S, 57 
 
 v. District Tp., 17 la. 85, 540 
 
 v. Gaylord, 53 Ind. 365, 480, 491, 
 
 r, 45
 
 lii 
 
 TABLE OF CASES. 
 
 References a 
 
 Dodge v. Knowles, 114 U. S. 1/50, 212 
 
 v. People, 1 Neb. 220, 529 
 
 v. Pope, 93 Ind. (No. 629, 712, 748 
 
 v. Strong, 2 Johns. Ch. 228, 788 
 
 Dodson v. Scroggs, 47 Mo. 285, 735 
 
 l irk, 6 I ml. |.66, 301 
 
 \ . Conidine, 6 Wall. 158, 26 
 
 \ . Crocker, 2 1 rid. 575, 491 ■ 
 
 v. Gildart, 6 Miss. 606, 763 
 
 v. I [arvey, 3 Ind. 104, 672 
 
 v. Herr, 8 Ind. 2 (., 195 
 
 \. Makepeace, 8 Blackf. 575, 755, 
 
 76] 
 v. McDonald, 4 Ind. 615, 6S3 
 
 v. Natchez Ins. Co., S S. & M. 
 
 197- 7 6 3 
 
 v. Parker, 3 Sm. & M. 114, 96 
 
 v. Peeples, 1 Ga. 1, 763 
 
 v. Owen, j Blackf. 452, 176, 183 
 
 v. Rue. 4 Blackf. 263, 640 
 
 v. Smith. 1 Ind. 451, 672, 764 
 
 Dolan v. Church, 1 Wyo. 187, 647 
 
 v. State. 122 Ind. 141, 239. 257, 
 
 291, 293, 527, 647 
 
 Doles v. State, 97 Ind. 555, 531,541, 620 
 
 Doll v. Feller. 16 Cal. 43:. 483, 735 
 
 Dollman v. Munson, 90 Mo. 85, 792 
 
 Dominquez v. Mascotti, 7 ( Cal. 269, 6S2 
 
 Donahue v. Dryer, 23 Ind. 52 1, 580 
 
 v. Enterprise, etc., Co., 23 S. 
 
 C. 608, 446 
 
 Donald v. St. Louis, etc., Co.. 52 
 
 la. 411. 1S7 
 
 Donaldson. Ex parte, 44 Mo. 149, 673 
 Donaldson v. Dunn. 87 Ind. 343, 403 
 Donelson v. Taylor, 8 Pick. 390, 701 
 Donley v. Camp. 22 Ala. 659, 509, 572 
 Donnell v. Jones, 13 Ala. 496, 537 
 
 Donellan v. Hardy, 57 Ind. 393, 395, 567 
 Donnelly v. Woolsev. 59 Hun. 618, 630 
 Donovan v. Huntington, 24 Ind. 321, 45 
 Dooley v. Martin, 2N Ind. [89, 170 
 
 Dooling v. Moore, 19 Cal. 81, 109 
 
 v. Moore. 20 Cal. 141, 94 
 
 Doolittle v. State. 93 Ind. 272, 291 
 
 Dooly v. Baker. 2 Mo. A pp. 325, 512. 
 
 532 
 
 Dorhert v. State. 68 Md. 209, 676 
 
 Doremus v. Selden, 19 Johns. 213. 602 
 
 Dorman v. State. 34 Ala. 216, 512 
 
 v. State. 56 Ind. |; \. 405 
 
 Dorsey v Mi Gee, ;o Neb. 037, 7S1 
 
 v. State. 25 N. E. Rep. 350, 27 
 
 v. Thompson, ^7 Md. 25, 495 
 
 Dorr v. Hill, 62 N.'ll. 506, ' 430 
 
 v. McDonald, 43 Minn. 458, 075 
 
 v. Rohr, 82 Va. 359. 413 
 
 Doss v. Tvack, 14 How. 297, 98 
 
 Doty v. Gillett 4 3 Mich. 203, 414 
 
 v. State. 6 Blackf. 529, 6S0 
 
 re to Pages.] 
 
 Doubing v. Polack, 18 Cal. 625, 76 
 
 I >ougan \ . state 1 Ind.), 25 N. E. 
 
 Rep. 171, 27 
 
 Dougherty v. State. 5 Ind. 453, 232, 254 
 
 Douglass v. Blankenship, 50 Ind. 
 
 160, 296 
 
 v. Dakin. 46 Cal. 49. [68 
 
 v. Fulda, 54 Cal. 58S, 109 
 
 v. Keehn. 78 Ind. 199. 179 
 
 v. McAllister. 3 Cranch, 298. 573 
 
 v. Negnelona, 88 Tenn. 769, 92, 
 
 109, 444 
 
 v. State, 72 Ind. 3S5, 251, 294. 
 
 75 2 >77i 
 
 Douglass County v. Bolles, 94 U. 
 
 S. 104. 285 
 
 Douglav v. Davis, 45 Ind. 493, 116 
 
 Dougle v. Gates, 21 Ind. 65, 632 
 
 Douns v. Opp, 82 Ind. 166, 773 
 
 Douthitt v. Smith. 69 Ind. 463, 399 
 
 Dove v. Commonwealth, 82 Va. 301, 679 
 Dow v. Merrill (N. II.), 18 Atl. 
 
 Rep. 317, 692 
 
 v. Merrill, 65 N. H. 248, 690 
 
 Dowdell v. Wilcox, 64 la. 721, 740 
 
 Dowell v. Caruthers, 26 Kan. 720,62, 91 
 
 v. Lahr. 97 Ind. 146, 154 
 
 Dower v. Church, 21 W. Va. 23, 619 
 
 Downer v. Howard, 44 Wis. 82, 144 
 
 Downard v. Hadley, 126 Ind. 131, 413 
 
 Downey v. State, 77 Ind.. 87, 6S7 
 
 v. Washburn, 79 Ind. 242, 187 
 
 Downing v. McCartney. 19 U. S. 
 
 Sup. Ct. Rep. Co.-ed. 757, 122 
 
 Dowling v. Crapo, 65 Ind. 209, 636 
 
 Downs v. Opp, 82 Ind, 166, 202 
 
 Doval v. Landes, 119 Ind. 479, 771 
 
 Doyle, In re, 73 Cal. 564, 637 
 
 Do vie v. Riser, 8 Ind. 396, 494 
 
 ' v. Mulren, 7 Abb. Pr. (N. S.) 
 
 ^5 8 - 550 
 
 Dozenback v. Raymer, 13 Col. 451, 620 
 Drake v. State (N. J.), 20 Atl. Rep. 
 
 717- 57S 
 
 v. State, S3 N.J. L. 23, 736 
 
 v. Wakefield, 11 How. Pr. 106, 54 
 
 Draper v. Davis, 102 U. S.370, 341, 342 
 
 Dravton v. Thompson, 1 Bay. (S. 
 
 C.) 263, 793 
 
 Dresse v. Brooks, 5 How. Pr. 75, 210 
 
 Dressier v. Davis. 7 Wis. 527, 560 
 
 Drey v. Doyle. 99 Mo. 459, 690 
 
 Drew v. Claypool, 61 Mich. 233, 284 
 
 v. State, 124 Ind. 9, 253, 255, 579, 
 
 612, 623 
 Drinkout v. Eagle Machine Works, 
 
 90 Ind. 423. 197, 078 
 
 Dritt v. Dodds. 35 Ind. 63, 675, 706 
 
 Dronilliard v. Whistler, 29 Ind. 552, 154 
 
 Dryden v. Britton, 19 Wis. 22, 480
 
 TABLE OF CASKS. 
 
 llii 
 
 Dubois v. Campau, 28 Mich. 304, 
 
 v. Johnson, Si End. 520, 
 Duck v. Abbott, _\| End. 349, 
 
 v. Peeler, 74 Tex. 268, 
 Dudley v. Fisher, 7 Blackf. 553, 
 
 v. Parker, 55 Hun. 29, 
 Duesterberg v. State, 116 Ind. 141, 624 
 
 686 
 
 v. Swartzel, 115 Ind. 1S0, 
 Duffv. Dull", 71 Cal. 513, 
 Dugle v. State, 100 Ind. 259, 
 Duigenan v. Chius, 46 Kan. 275, 
 Duke v. Brown, 18 Ind. in, 
 Dukes v. State. 11 Ind. 557, 
 Duignan v. Wvatt, 3 Blackf. 3S5, 
 
 [References arc to Pages.] 
 
 579 
 
 60 1 
 
 475 
 630 
 69 
 
 556 
 
 77'J 
 53° 
 628 
 696 
 409 
 793 
 
 Dukes v. Working, 93 Ind. 501, 181,300 
 Dumont v. Dufore, 27 Ind. 263, 
 
 v. Lockwood, 7 Blackf. 576, 
 Dunbar v. Locke, 62 N. H. 442, 
 Duncan v. Cravens, 55 Ind. 525, 
 
 v. Forgey, 25 Mo. App.310, 
 
 v. Gainej, 10S Ind. 579, 
 
 v. Gerdine, 59 Miss. 550, 
 
 v. Hollidaysburgh,etc, Co., 136 
 Pa. St. 47S, 
 
 v. Kohler, 37 Minn. 379, 
 
 v. Lvon, 3 Johns. Ch. 351, 
 
 v. State, SS Ala. 31, 
 
 v. State, S4 Ind. 204, 239, 251, 
 Duncombe v. Daniel, S C. & P. 222, 
 
 v. Powers, 75 la. 1S5, 
 Dunderdale v. Grvmer, 16 How. Pr. 
 
 l 9 
 
 Dunham v. Courtnay, 24 Neb. 62, , 
 Dunkel v.Wehle. 13 Abb. N.C.476, 320 
 
 .1- 
 420 
 
 4 IJ 
 520 
 
 65 
 327 
 671 
 
 59 1 
 610 
 
 455 
 2 S l 
 6S0 
 6 I7 
 266 
 
 604 
 403 
 
 97 
 
 Dunkin v. McKee. 2^ Ind. 447, 
 Dunkle v. Elston, 71 Ind. 585, 126, 
 Dunlop v. Ilavden, 29 Ind. 303, 
 Dunn v. Crocker, 22 Ind. 324, 
 
 v. Gibson, 9 Neb. ^13, 
 
 v. Hubble. Si Ind.^Sg, 
 
 v. State, 29 Ind. 2^9, 
 
 v. Tousey, So Ind.^SS, 
 Du Pont v. Davis, 35 Wis. 631, 
 Dupree v. Perry, 18 Ala. 34, m, 
 Durand v. Gage, 76 Mich. 624, 
 Durant v. Lexington, etc., Co 
 
 Mo. 62, 
 
 Durbin v. Haines. 99 Ind. 463, 
 Durfee v. Abbott. 50 Mich. 479, 
 Durgin v. Meal, 82 Cal. 595, 
 Durham v. Bischof, 47 In J. 211. 
 
 v. Craig, 7.) Ind. 1 17, 266. 
 
 v. Fechheimer, 67 Ind. 35, 520. 
 
 v. 1 [all, 67 Ind. 123, 
 
 v. State, 1 17 Ind. 477, 35, 
 
 v. State. 128 Ind. 16, 
 Du Souchet v. Dutcher, 113 Ind. 
 
 249. [59, 182, 24S, 395,636, 692, 
 Dushane v. Benedict, 120 I". S 
 
 598 
 2S7 
 58i 
 30S 
 
 73- 
 760 
 
 759 
 736 
 
 49- 
 -7- 
 439 
 
 657 
 1S4 
 625 
 
 467 
 
 ;.» s 
 
 -74 
 5 21 
 597 
 
 21: 
 
 Dutton v. Dutton, 30 Ind. j.52, 3^5 
 
 v. I [obson, 7 Kan. '1 ( - 
 
 Duvall v. Martin, 2> Mo. App. 526, 75S 
 Dwight v. St. John, 25 N. Y. 203, 
 1 )\\ iggins v. Cook, 71 Ind. 570, 
 Dzialvnski v. Bank, 2^ Fla. 44, 
 Dye v. Mann, 10 Mich. 291, 
 
 v. State Mini.), 
 Dyer v. Hoard, 84 Ind. 542, 
 v. Bradley, 88 Cal. 590, 
 v. Bradley, 89 Cal. 557, 
 v. Brady" (Cal.), 26 Pac. Rep. 
 511, 
 Dyer v. Brady, 88 Cal. 590, 
 
 v. Dyer, 87 Ind. 13, 
 Dykeman v. Budd, 3 Wis. 640, 
 
 7 ; 
 672 
 
 168 
 267 
 
 308 
 326 
 
 45 2 
 340 
 
 692 
 
 E 
 
 Ahrens, 
 
 Eagle Machine Works 
 
 123 Ind. 2j^, 
 Eakle v. Smith, 24 Md. 339, 
 Ealer v. Freret, 11 La. Ann. 4;^, 
 Earl v. Dresser, 30 Ind. 11, 
 Earle v. Earle. 91 Ind. 27, 
 
 v. Simons, 94 Ind. 573, 
 Earp v. Board, 36 Ind. 470. 
 
 v. Commissioners, 36 Ind. 470, 638 
 East v. Peden, 10S Ind. 92, 215 
 
 East, etc., Co. v. Williams, 71 Tex. 
 
 562 
 
 330 
 
 55 1 
 75S 
 5"! 
 -94 
 5" 
 
 444- 
 
 86 
 
 East Tennessee, etc., Co. v. Martin, 
 
 85 Term. 134, j,,i 
 
 Eastbam v. Sallis, 60 Tex. 576, 6S, 73 
 
 Eastman v. Godfrey, 15 Kan. 341, 765 
 
 v. State, 109 Ind. 27V 9 
 
 Easter v. Acklemire, Si Ind. 163. 122, 
 
 '5 1- 208, 307 
 
 v. Severen, 78 Ind. 540, 120,122. 561 
 
 Eaton v. Barnhill, 68 Sliss. 30^, 
 v. Caldwell. 3 Minn. 134, 
 \ . Korea. 75 Cal. 93, 
 v. Ryan, 5 Neb. 47, 
 
 Eberhart v. Reister, 96 Ind. 478, 
 
 544 
 -94 
 4 '3 
 75 
 394- 
 
 Eberly v. Moore, 24 How. 147. 
 
 Ebbersole v. Redding, 22 Ind. 232, 
 
 Eddleman v. McGlathery (Tex.), 11 
 S. W. Rep. 1 too, 
 
 Eddy v. Deal. 34 Ind. 1 59, 
 
 Eden v. Lingenfelter, 59 Ind. 19, 
 
 Edgell v. Francis, 86 Mich. 232. 
 
 Edgerly v. Emerson, 23 X. II. ;;;. 
 
 Edmonds v. State, 34 Ark. 720. 
 
 Edmonson v. Bloomshire, 7 Wall. 
 [o6, 104. 
 
 Edwards v. Beall, 75 Ind. 401, 
 v. Cary, <>o Mo. 572, 
 y. Edwards, 22 111. 121. 
 v. Husking. 31 111. App. 223. 
 
 
 249 
 
 -"I 
 
 7" 
 5'"' 
 6ig 
 
 71" 
 568 
 789 
 
 228 
 
 577 
 
 494 
 
 614
 
 liv 
 
 TABLE OF CASES. 
 
 | Reft rences a 
 Edwards v. Perkins, 7 Ore. 149, 126, 129. 
 
 35° 
 v.Tracy, 62 Pa. St. 374, 73 2 
 
 v. Vandemack, [3 111. 633, 21 
 
 Egan v. Menard, 32 Minn. 273, 41 1 
 
 Egberl v. Rush. 7 End. 706, 4S0 
 
 Eggleston v. Castle, 42 Ind. 531, 577 
 Eicholtz v. Wilbur, 4 Col. 434, 131 
 
 Eigenman v. Rockport, etc., Asso., 
 
 79 Ind. 41, 771 
 
 1 igenmann v. Kerstein, 72 Ind. Si, 494 
 Eighmy v. People, 7S N. Y. 330, 248 
 Eigemann v. Swan, 6 Bosw. 668 709 
 Eitel v. State, 33 Ind. 201, 4 
 
 Elberl v. Hoby, 7; [nd. in, 7 68 
 
 Elder v. Sidwell, 66 Ind. 316, 261 
 
 Elderkin v. Shultz, 2 Blackf. 245, 599 
 Eldridge, Matter of, 82 N. V. 162', 516 
 Eldridge v. State, 12 Tex. App. 20S, 761 
 Election of Executive Officers, In 
 
 re, 10 Law Rep. Ann. S03, n 
 
 Elfresh v. Guard, 32 Ind. 408, 786 
 
 Elgin v. Marshall, 106 U. S. 57S, 50, 
 
 51, 80 
 
 Elgin Lumber Co. v. Langman, 23 
 
 111. App. 250. 456 
 
 Elkhart, etc., Asso. v. Houghton, 
 
 103 Ind. 286, 67S 
 
 Elkhart, City of, v. Wickwire, 87 
 
 Ind. 77, 562 
 
 Elkin v. Gregory, 30 S. C. 422, 269, 557 
 Ellerman v. New Orleans, etc., Co., 
 
 2 Woods, 120, 72 
 
 Elliott v. Pell, 1 Paige. 263, 134 
 
 v. Dycke, 7S Ala. 150, 126 
 
 Russell. 92 Ind. 526, 702, 747, 7S4 
 
 34 
 601 
 
 530, 53 1 
 
 74 6 » 
 
 782, 789 
 
 *33 
 
 178 
 
 5 2 5 
 
 479 
 181 
 
 602 
 528 
 
 v. Smith, 23 Pa. St. 131, 
 \ . Stevenson, 21 Ind. 359. 
 v. State, 73 Ind. 10, 
 v. Woodward, iS Ind. 1S3, 
 
 Ellis v. P.ullard, 11 Cush. 496, 
 v. Ewbanks, 3 Scam. 190,. 
 v. Ford, 5 Blackf. 554, 
 
 V. Jeans. 26 Cal. 272. 
 
 V. Keller, 82 Ind. 524. 
 
 v. McLemoor, 1 Baily L. (So. 
 
 Car.- .3. 
 
 v. State', 2^ Fla. 702. 
 Ellison v. Reriek, 125 Ind. 396, 545, 654 
 Elmore v. McCrary, So Ind. 544, 395, 
 
 39 6 
 
 Elson v. O'Dowd, 40 Ind. 300, 590 
 
 Elston v. Castor, 101 Ind. 426, 713 
 
 Elting v. Gould, 96 Mo. 535. [55 
 
 Elwell \. Dodge, 33 Barb. 330. 546 
 
 v. Fabre, 13 N. Y. Supp. 829, 653 
 
 v. Fosdick, 134U. S. 500, 124, 125 
 
 V. Martin, 32 N't. 217. 589 
 
 re to Pages.] 
 
 Elwood, Town of, v. Citizens, etc., 
 
 Co., 114 Ind. 332, 35 
 
 Ely \. Board, 112 Ind. 361, 670 
 
 v. Tallman, 14 Wis. 28, 670. 
 
 Elvton Land Co. v. Morgan, SS 
 
 Ala. 434, 638 
 
 Emerick v. Armstrong, 1 Ohio, 513, 119 
 Emison v. Shepard, 121 Ind. 184, 7S3 
 Emmefson v. Clark, 2 Scam. 489, 754, 
 
 757 
 Emmert v. Darnall, 5S Ind. 141, 116 
 
 Emmett v. Yandes, 6c Ind. 548, 285, 72S 
 Emmons v. Kiger, 23 Ind. 4S3, 215 
 
 Emory v. Pease, 20 N. Y. 62, 407 
 
 Empire, etc., Co. v. Engley, 14 Col. 
 
 2S9, 66S 
 
 Endsley v. State, 76 Ind. 467, 256, 769 
 Engard v. Frazier, 7 Ind. 154. 200 
 
 England v. McLaughlin. 35 Ala. 590, 130 
 Engleman v. Arnold, 11S Ind. 81, 
 
 v. State, 2 Ind. 91, 102, 
 
 Englis v. Furniss, 3 Abb. Pr. 82, 
 English v. Devarro, 5 Blackf. 5S8, 
 
 v. Smock, 34 Ind. 115, 
 
 v. State, Si Ind. 455, 
 Eno v. Crooke, 6 How. Pr. 462, 
 Enright v. Grant, 5 Utah, 400, 
 Ensley v. McCorkle, 74 Ind. 240, 
 Enterprise, Town of, v. State, 24 
 
 Fla. 152, 
 Entrop v. Williams, 11 Minn. 3S1, 
 Entsminger v. Jackson, 73 Ind. 144, 
 Ensign v. Harvey, 15 Neb. 330, 
 Ensminger v. Mclntire, 23 Cal. 593, 
 
 v. Powers, 10S U. S. 292, 
 Enwright v. State, 5S Ind. 567, 
 Epperson v. Ilostetter, 95 Ind. 583, 
 Epps v. State, 19 Ga. 102, 528, 
 
 v. State, 102 Ind. 539, 253, 530, 
 Epstein v. Greer, S5 Ind. 372, 30S, 
 Erben v. Lorillard, 19 N. Y. 299, 
 
 Erickson v. Elder, 34 Minn. 370, 
 
 Erie R. R. Co. v. Stringer, 32 Ohio 
 St. 46S, 
 
 Errissman v. Errissman, 25 111. 119, 
 
 Erskine v. Duffy, 76 Ga. 602, 
 
 Erwin v. Bulla, 29 Ind. 95, 
 v. Collier, 3 Mont. 1S9, 
 v. Scotten, 38 Ind. 2S9, 121, 
 v. Scotten, 40 Ind. 3S9, 
 
 Eschback v. Hurtt, 47 Md. 61, 
 
 Eshelman v. Snyder. 82 Ind. 49S, 
 
 Eshon v. Chowan Co., 95 N. C. 75, 
 Eslinger v. East, 100 Ind. 434. 
 Espy v. Balkum, 4:; Ala. 256, 
 Eshbach v. Hurtt, 47 Md. 61, 
 
 402, 
 760 
 3- 1 
 
 76 
 
 59° 
 401 
 
 493 
 469 
 320 
 
 45 2 
 
 69 
 
 53 
 5-9 
 6 43 
 45 6 
 674 
 609 
 620 
 623 
 
 339 
 652, 
 
 <?57 
 
 312 
 
 72 
 533 
 792 
 
 538 
 494 
 448 
 603 
 
 703 
 394- 
 5 11 
 449 
 747 
 330 
 699
 
 TABLE OF CASES. 
 
 iV 
 
 [References a 
 
 Essig v. Lower, 120 Ind. 239. 1)7. 148, 
 
 »54> 5°4 
 
 2 74- 73- 
 
 561 
 
 665. 782 
 
 5 2 7 
 
 Estep v. Burke, 19 Ind. 87, 
 
 v. Estep, 23 Ind. 1 14. 
 
 v. Larsh, 21 Ind. 1S3, 
 
 v. Waterquse, 45 Ind. 140, 
 Estey, etc., Co. v. Runnels, 67 
 
 Mich. 310, 339 
 
 Estill v. Irvine, 10 Mont. 1509, 713 
 
 Estis v. Trabue, 128 U. S. 225 116 
 
 Estus v. Baldwin, 9 How. Pr. 80, 497 
 Ethell v. Batchelder, 90 Ind. 520, 606 
 ICtter v. Anderson, 84 Ind. ^^^. 122, 154 
 
 v. Armstrong, 42 Ind. 47s. 174 
 
 Eureka Steam 1 IeatingCo. v. Slote- 
 
 man, 67 Wis. 118, 208, 316 
 
 Evans v. Adams, 3 Gr. L. (N. J.) 
 
 373- ' 90 
 
 v. Christopherson, 24 Minn. 
 
 33°, B 79 1 
 
 v. Cleveland, 72 N. Y. 486, 143 
 
 v. Commonwealth (Ky.), 12 S. 
 W. Rep. 76S, 
 
 v. Evans, 105 Ind. 204, 
 
 v. Feeny, 81 Ind. 532, 
 
 v. Galloway, 20 Ind. 479, 
 
 v. Kilbv, 81 Ga. 278, 
 
 v. Nealis, 87 Ind. 262, 
 
 v. Pike, 11S U. S. -41, 
 
 v. Schafer, SS Ind. 92, 
 
 v. Shafer, SS Ind. 92, 
 
 v. State, 67 Ind. 68, 
 
 v. State 7 Ind. 271, 
 
 v. State, 58 Ind. 587, 
 
 v. White, 53 Ind. 1, 
 
 v. Young, 10 Col. 316. 
 Evansville, City of, v. Martin, io^ 
 Ind. 206, 397>39 8 ~. 7S3 
 
 v. Thayer, 59 Ind. 324, (566 
 
 v. Wilter, 86 Ind. 414, 623 
 
 Evansville, etc., Co. v. Barbee, 59 
 Ind. 592, 
 
 v. Crist, 116 Ind. 446, 
 
 v. Evansville, 15 Ind. 395. 1^4, 
 
 v. Frank, 29 N. E. Rep. 419, 
 
 v. Gilmore, 1 Ind. App. 468, 
 
 v. Lawrence. 29 Ind. 622, 
 
 v. Montgomery, 85 Ind. 494, 
 
 v. Mosier, 114 Ind. 447, 
 
 v. Swift, 12S Ind. 34, 
 
 v. Taft (Ind.), 2S N. E. 
 44S, 
 
 v. Wildman, 63 Ind. 370, 
 Evarts v. State. 4S Ind. 422. 
 Eve v. Louis, 91 Ind. 457, 
 Everett v. Lowdham, 5 C. i P, 91, ^38 
 
 v. Union Pacific R\ . Co., ^9 
 la. 243, 536 
 
 v. W illiamson. 107 N. C. 204. 71 s . 
 
 7*8 
 
 2 39 
 
 217 
 294, 72S 
 104 
 455 
 53- 
 57*. 574 
 
 *59 
 766 
 782, 792 
 679 
 298 
 
 635 
 672 
 
 444 
 690 
 285 
 76S 
 70S 
 281 
 6 S 8 
 354 
 30. 33 
 
 Rep. 
 
 716 
 
 605, 674 
 
 529 
 
 507, 609 
 
 re to Pages. \ 
 
 Everit v. Walworth Count v Bank. 
 
 13 Wis. ,,,,. 4 Si 
 
 Everroad v. Gabbert,83 Ind. 489, 718 
 Eversdon v. May hew. 85 Cal. 1, 491 
 Ewald v. Coleman. 19 Ind. 66, 
 
 v. Corbett, t,2 Cal. 493, 140 
 
 Ewing v. Patterson, 35 Ind. 326, 399. 404 
 Exchange Bank v. Ault, 102 Ind. 
 
 322, ■ 672 
 
 Exlev v. Berryhill, 63 Minn. 117, 96, 462 
 Eyre v. Cook, q la. 1S5, 557 
 
 Eysamen's Will, In re, 113 N.Y.62, 612 
 
 Faber v. Bruner, 13 Mo. 541, 513 
 
 v. Hovey, 117 Mass. 107, 463 
 
 Fabyan v. Russell, 39 N. H. 399, 261 
 Factors, etc., Co. v. New Harbor, 
 
 etc., Co., 37 La. Ann. 233, 129 
 
 Faden v. Fritz, no Ind. 1, 53 
 
 Fagan v. McTier, 81 Ga. 73, 453 
 
 Fahlor v. State, 10S Ind. 387, 771 
 
 Fahnestock v. State, 23 Ind. 231, 530 
 
 Fairbanks v. Corliss. 1 Abb. (N. Y.) 
 
 150, 
 
 v. Loring, 29 N. E. Rep. 452, 
 
 v. Me vers. 98 Ind. 92, 373 
 
 Fairchild v. Odell, 3S Cal. 2S6, 
 
 Fall v. Hazelrigg, 45 Ind. 576, 
 
 Falley v. Gribbling, 12S Ind. no, 
 
 Fancher v. Grass, 60 la. 505, 
 Fankboner v. Fankboner, 20 Ind. 
 
 62, 404, 
 
 Faris v. Lampson, 73 Cal. 190, 
 Farley v. Board, 126 Ind. 46S, 
 
 v. State. 127 Ind. 419, 255. 
 
 Farman v. Borders, 119 111. 22S, 
 
 v. Lauman, 73 Ind. 56S, 622, 
 v. Ratcliff, 42 Ind. 537. 
 Farmers' Bank v. Butterfield, 100 
 
 Ind. 229, 412, 532, 
 
 Farmers', etc., Bank v. Lonergan, 
 
 21 Mo. 46. 
 v. Sprigg, 11 Md. 3S9. 
 Farmers, etc., Co. v. Groff, S7 Pa. 
 
 St. 124, 
 Farmers Loan Trust Co., Matter 
 
 of, 129 L. s. 200. 79, 
 
 Farmers Loan, etc., Co. v. Canada, 
 
 etc., Co., 127 Ind. 250, 67, 301. 
 
 637 
 Farnsworth v. Coots. 46 Mich. 117. 
 Farnum v. Pitcher, 151 Mass. 470, 
 
 124 
 76S 
 74S 
 93 
 ^77 
 39 1, 
 604 
 44S 
 
 554 
 
 373 
 
 62 
 
 618 
 
 -71 
 69S 
 
 26S 
 
 626 
 
 697 
 192 
 
 537 
 5*3 
 
 397. 
 
 . 7 13 
 624 
 
 643 
 
 Farrar v. Churchill, 135 U. S. 609. 104, 
 
 345 
 
 V. Clark, 97 Ind. 447, 
 
 v. United States, 5 Pet. 373,
 
 ivi 
 
 TABJLE OF CASES. 
 
 /.'- ferences a 
 
 Farrell v. Patt'.son, 43 111. 52, 119 
 
 \ Pingree, 5 Utah, 530, 470 
 
 v. State, 3 l.ul. 573, 525 
 
 \. state. 7 [nd. 345, 69. 231, 232 
 
 v. State, 33 I nd. 18: 
 
 V. State. 85 [nd. JJl. 
 
 : 5 o 
 
 59 2 
 
 56 
 
 612 
 
 I 9 
 589 
 
 72 
 
 Farrington v. Turner, 53 Mich. 72, 
 Farris v. Houston. 74 Ala. 162, 
 
 v. People, 129 111. 521, 
 Farwell v. Becker, 129 111. 261, 
 
 v. Myers, 59 Mich. 179, 
 Fashnacht v. Frank, 23 Wall. 416, 
 Fasnacht v. German, etc., Asso., 99 
 
 Ind. 133, 774 
 
 Fassinow v. .State, S9 Ind. 235, 291, 669 
 Fathman v. Tumulty, 34 Mo. App. 
 
 236, * ~ 5S2 
 
 Fat man v. Leet, 41 Ind. 133, 604 
 
 Faught v. Faught, 98 Ind. 470, 17, 31 
 Faulker v. Guild, 10 Wis. 563, 147 
 
 Faure v. United States Express 
 
 Co., 23 Ind. 4S, 101, 467 
 
 Faurote v. State, 123 Ind. 6, 713 
 
 Faust v. City of Huntington, 91 
 
 Ind. 493, 561 
 
 Fawkner v. Baden, 89 Ind. 587. 306 
 
 Fay v. Richards, 30 111. App. 477, 792 
 Fearing v. Irwin, 55 N. Y. 4S6, 190 
 
 Feaster v. Woodfill, 27, Ind. 493, 378, 
 
 647, 669 
 Feder v. Field. 117 Ind. 3S6, 17, 355, 
 
 35 6 > 35 8 »4 IX > 453 
 
 Feeney v. Mazelin, S7 Ind. 226, 732, 781 
 Fehring v. Swineford, t,t, Wis. 550, 96 
 Feibleman y. Packard, 10S U. S. 14, 116 
 Felch y. Gilman, 22 Vt. 38, 127 
 
 Felger v. Etzell, 75 Ind. 417, 394, 397, 
 
 636, 637 
 
 Felkner v. Scarlet, 29 Ind. 154., 570 
 
 Fell v. Muller. 7S [nd. 507, ' .506 
 
 y. Rich Hill Coal Mining Co., 
 
 23 Mo. App. 216, 414 
 
 Fellenzer v. Van Valzah, 95 Ind. 
 
 12S, 159.167,773 
 
 Fenner v. Bettner, 22 Wend. 621, 117 
 
 Ferger v. Wesler, 35 Ind. 53, 669 
 
 Ferguson v. Board, 44 la. 701, 112 
 
 v. Dent. 29 Fed. Rep. 1, 325 
 
 v. Harrison, 7 Ind. 610, 37 
 
 y. Landram, 1 Bush. 548, 127, 415 
 
 y. Rutherford, 7 Nev. 3S5, 537 
 
 y. State. |<> I nd. t,3> 622 
 
 Fernbach v. City of Waterloo, 76 
 
 la. 598, 67S 
 
 Ferrierv. Deuthman, 51 Ind. 21. 162. 766 
 Ferris v. Johnson, 27 Ind. 247, 648 
 
 Fertich v. Michener, 11 1 [nd. 472, 469 
 Fetters v. Muncie Nat. Bank, 34 
 
 Ind. 251, A14 
 
 Fewlass v. Abbott, js Mich. 270. 682 
 
 re to Pages. \ 
 
 Field v. Burton, 71 Ind. 3S0, 121, 
 348, 361, 443, 
 v. Chicago, etc., Co., 21 Mo. 
 App. 600, 
 
 v. Holzman,93 Ind. 205, 17, ^2, 
 v. Malone, 102 Ind. 251, 147, 
 y. People, 2 Scam. (111.) 79, 
 v. Schricker, 14 la. 119, 
 Fielden v. People, 12S 111. 595, 177. 
 Fields v. Hunter, 8 Mo. 12S, 
 y. Moul, 15 Abb. Pr. 6, 
 Fifteenth Ave, In re, 54 Cal. 179, 
 Fifth Avenue Bank v. Webber, 27 
 Abb. N.C.i, 64S, 
 
 Figart v. Halderman, 59 Ind. 424, 
 
 v. Halderman. 7^ Ind. 564, 
 Fight v. State, 7 Ohio, 180, 
 Figures v. Dunklin, 68 Tex. 645, 
 Filley v. Walker. 27 Neb. 500, 
 
 V. Walker, 44 N. W. Rep. 737, 
 Finch v. Hartpence, 29 Neb. 36S, 
 Fineux v. Hovenden, Croke's Eliz. 
 
 664, 
 Finlay v. Bryson, 84 Mo. 664, 
 Find ley v. State, 5 Blackf. 576, 
 Fink y. Algermissen, 2^ Mo. App. 
 
 186, 
 Finn v. Corbitt. 36 Mich. 31S, 
 Finneran v. Leonard, 7 Allen, 54, 
 Firemen Ins. Co. v. Schwing (Ky.), 
 
 11 S. W. Rep. 14, 
 Firestone v. Daniels, 71 Ind. 570, 
 v. Firestone, 7S Ind. 534, 178, 
 v. Hershberger, 121 Ind. 201, 
 v. Werner. 1 Ind. App. 293, 
 First Baptist Church v. firanham, 
 
 90 Cal. 22, 
 First Congregational Society v. 
 
 Trustees. 2T, Pick. 14S, 
 First Nat. Bank v. Ashmead, 23 
 Fla. 379. 
 
 v. Briggs, 34 Minn. 266, 
 
 v. Carter, 89 Ind. 317, 
 
 v. Carpenter. 41 la. 51S, 
 
 v. Colter. 6] Ind. 153, 69S, 732, 
 
 v. Essex. 84 Ind. 144, 122, 124, 
 
 v. First Nat. Bank, 76 Ind. 561, 
 
 v. Gary, [4 S. C. 571, 
 
 v. Holt, S7 Cal. [58, 
 
 v. Hummel, 14 Col. 259, 
 
 v. Hurford, 29 la. 579, 
 
 v. Murdough, 40 la. 26, 
 
 v. Omaha, 96 U. S. 737, 
 
 v. Redick, no U. S. 224, 
 
 v. Rogers, 13 Minn. 407, 335, 
 
 v. Root, 107 Ind. 224, 587, 
 
 v. Williams, 126 Ind. 423, 653, 
 
 v. Wright (la.), 48 N. W. Rep. 
 9*1 
 
 154. 
 
 448 
 
 191 
 604 
 154 
 57 
 30S 
 
 75^ 
 
 7^3 
 
 487 
 
 96 
 
 743 
 1S4 
 
 675 
 250 
 
 3°9 
 597 
 
 345 
 7S 
 
 424 
 126 
 
 568 
 
 661 
 682 
 
 285 
 
 615 
 297 
 287 
 669 
 736 
 
 597 
 
 634 
 
 469 
 9 § 
 
 712 
 
 675 
 7S1 
 
 154 
 
 472 
 96 
 
 544 
 59 6 
 195 
 
 79' 
 318 
 
 51 
 
 462 
 
 qSS 
 
 7S2, 
 
 7S4 
 
 265
 
 TABLE OF CASES. 
 
 lvii 
 
 [Referetn e& a 
 
 First Unitarian Society v. Faulk- 
 ner, 91 U. s. 415, 699 
 Fischer v. Coons, 26 Neb. 400, 2SS, 736 
 v. Holmes, 123 Ind. 525, 120, 556 
 v. Longbein, [03 V V.S4, 449 
 v. Neil, 6 Fed. Rep. 89, 731 
 Fischli v. Fischli, 1 Blackf. 360, 73 
 Fiscus v. Turner, 125 Ind. 46, 77 1 
 Fish v. Ferris, 5 Duer, 49, 5SS 
 v. Smith, 12 Ind. 5' ;. 619 
 v. Weatherwax, 2 Johns. Cas. 
 
 215, 435 
 
 Fisher's Estate, In re, 75 Cal.523, 100, 
 
 224 
 Fisher v. Cid Copper Mining Co., 
 
 97 N. C. 95. 469 
 
 v. Perdue. 48 Ind. 323, 1S7, 188, 403 
 
 Fisk v. Chicago, etc., Co., 74 la. 424, 62S 
 v. Chicago, etc., Co. (I a -)> 4& 
 
 N. W. Rep. 1081, 624 
 
 v. Henarie, 14 Ore. 29, 410 
 
 v. Patriot, etc., Co., 54 Ind. 479, 86 
 
 v. Reigleman, 75 Wis. 499, 156 
 v. Union, etc., Co., 6 Blatchf. 
 
 362, 7^ 
 Fitch v. Armour, 14 N. Y. Supp. 
 
 3 ! 9' 62 4 
 
 v. Bunch, 30 Col. 208, y s v 
 v. Citizens National Bank, 97 
 
 Ind. 211, 2S9 
 v. Creighton, 24 How. (U. S.) 
 
 159, " 
 
 v. Develen, 15 Barb. 47, 392 
 
 v. Lothrop, 2 Root. ^24, 267, 344 
 
 v. Polke, 5 Blackf. 86, 403 
 
 v. Rathbun, 61 N. V. 579, 414 
 
 Fitzenrider v. State, 30 Ind. 238, 759 
 
 Fitzgibbon v. Lake, 29 111. 165, 495 
 
 Fitzgerald v. Evans, 53 Tex. 461, 444 
 
 v. Center, 26 Ind. 23S, 603 
 
 v. Goff, 99 Ind. 28, 620, 691 
 
 v. Hay ward, 50 Mo. 516, 532 
 
 v. Jeroleman, 10 Ind. 33S, 571, 578 
 
 v. Urton, 4 Cal. 235, 4 
 
 v. Wellington, 37 Kan. 460, 339 
 
 Fitzgerald, etc., Co. v. Fitzgerald, 
 
 137 U.S. 98. 630 
 
 Fitzpatrick v. Papa, S9 Ind. 17, 518, 
 
 535. 596, 730 
 
 Flagg v. Sloan, 16 Ind. 432, 85 
 
 Flaherty v. Miner, ^ X. Y. St. 
 
 Rep. 681, 545 
 
 v. Miner, 123 N. Y. 3S2. 547 
 
 Flatter v. McDermitt, 25 Ind. 326, 579 
 
 Fleenor v. Driskill, 97 Ind. 27. 74 
 
 Fleetwood v. Brown, 109 Ind. ^67, 562, 
 
 565, 60S 
 v. Dorsey Machine Co., 95 Ind. 
 
 491, 692 
 
 Fleischman v. Walker. 91 111. 31S, 58 
 
 re to Pages.] 
 
 Fleming v. McDonald, 50 Ind. 27S, 588 
 
 v. State, 1 1 Ind. 234, $2,"- 
 
 Fletcher v. Mansur, 5 Ind. 267, 
 
 v. Martin, 126 Ind. 55, 712 
 
 v. State, 49 Ind. 124, 622, 759 
 
 Flint v. Burnell, 116 Ind. 4S1, 771 
 
 Flint River, etc., Co. v. Foster, 5 
 
 Ga. 194, 
 Floeger v. Wiedner, 77 Tex. 311, 600 
 Flood v. Jovner. 96 Ind. 459. 782 
 
 Fleming v. Mershon, 36 la. 413, in 
 Floore \ . Steigelmayer, 76 Ind. 479, 391 
 Floral Spring Water Co. v. Rives, 
 
 14 Nev. 431, 437, 519 
 
 Flory v. Wilson, 83 Ind. 391, 61, Si. 
 
 9 2 - 759 
 Flournov v. Jerlersonville, 17 Ind. 169, 9 
 Floyd v. Floyd, 4 Rich. (So. Car.) 
 
 Flue'ster v. McClelland, 3 C. B. 
 
 (N.S.)357, 145 
 
 Fogarty v. State, So Ga. 450, 530, 536 
 
 Fogg v. Gibbs, S Baxt. 464, '172 
 
 Folden v. State, 13 Neb. 328, 251, 252 
 
 Fontaine v. Houston, 58 Ind. 316, 154 
 
 Fonville v. State, 91 Ala. 39, 739 
 
 Foot v. Glover, 4 Blackf. 313, 704 
 
 Foote v. Beecher, 7S N. Y. 155, 657 
 
 v. Lawrence, 1 Stew. (Ala.) 483,666 
 
 v. Massachusetts, etc., Asso.,39 
 
 Fed. Rep. 2T,. 630 
 
 Forbes v. Porter, 23 Fla. 47, 65, 315 
 
 Forcy v. Leonard, 63 Wis. 553, 524 
 
 Ford v. Booker, 53 Ind. 395, 393 
 
 v. Cameron, 19 Mo. App. 467, 190, 
 
 191 
 
 v. Ford, no Ind. 89, 630, 67S 
 
 v. Ford, 72 Wis. 621. 491 
 
 Fordyce v. McCants, 51 Ark. 509, 568, 
 
 '"-( 
 v. Merrill. 49 Ark. 277, 2SS 
 
 Forelarider v. Hicks', 6 Ind. 44S, 665 
 Forgav v. Conrad, 6 How. 201, S2, 119 
 Forgerson v. Smith. 104 Ind. 240. 491 
 Forgey v. First Nat. Bank, 66 Ind. 
 
 123, 72S 
 
 Forster, etc., Co. v. Guggemos, 24 
 
 Mo. App. 444, 51 
 
 Forsythe v. Kreuter. 100 Ind. 27, 296, 
 
 725, 7 6S 
 Foster's Will. In re, 31 Mich. 21, 619 
 Foster v. Berkley, S Minn. 351, 
 
 v. Bringham, 99 Ind. 505. 266, 27') 
 v. 1 [inson, 7(1 la. 714, 291, 533 
 
 v. Pointer. 9 C. ..Si P. 71S, 697 
 
 v. State. 59 Ind. 4S1, 7S9 
 
 v. State. 41 Mo. 61, 431 
 
 Foulks v. Falls, 91 Ind. 315. 305 
 
 Foster v. Ward, 7^ Ind. ^94, 62^, ^82. 
 
 686
 
 lviii 
 
 TABLE OF CASES. 
 
 References arc to Pages.] 
 
 i>6b 
 
 182 
 
 535 
 
 mi 
 
 9.3 
 406 
 
 744 
 690 
 448 
 539 
 495 
 572 
 
 Fourth National Bank v. Stout. 1 1 5 
 
 U.S. 684, 79, So 
 
 Fouty v. Morrison, 73 Ind. 333, 198, 
 
 199, 238 
 
 Fovors v.Johnson. 79 Ga. 553, 618 
 
 Fowle v. Alexander, 11 Wheat. 320, 714 
 
 Fowler v. Bowery, etc., Hank, 113 
 
 N. Y. 450, 391, 398, 403 
 
 \ . Burget, 16 Ind. 341, 628 
 
 v. Eddy, [io Pa. St. 117, 392 
 
 v. Farmers, etc., Co., 21 Wis. 77, 6^8 
 
 v. Hawkins, 17 Ind. 211, 
 
 v. Lindsey, 3 Dall. 41 1, 
 
 v. Strawberry Hill, 74 la. 644, 
 
 Fox v. Allensville, etc., Co., 46 Ind. 
 
 3 1 . 
 
 v. Fields, 12 Heisk. 31, 
 
 v. Hunt. 8 How. Pr. 12, 
 
 v. Town of Monticello, S3 Ind. 
 
 4 8 3- 
 Foxwell v. State, 63 Ind. 539, 
 Foy v. Domec, 33 Cal. 317, 
 Fraedrich v. Flieth, 64 Wis. 184, 
 Frakes v. Brown, 2 Blackf. 295, 
 Frame v. Badger, 79 111. 441, 
 
 v. Trebble, 1 J. J. Mar. (Kv.) 
 
 205, 23 
 
 Frank v. Grimes, 105 Ind. 346, 625, 
 
 686, 693 
 
 v. Kessler, 30 Ind. 230, 790, 791 
 
 v. King, 121 111. 250, ^^ 
 
 v. Thomas, 35 111. App. 547, 315 
 
 Frankfort Bridge Co. v. Williams, 
 
 9 Dana, 403, 5 6o 
 
 Franklin v. Reiner, 8 Cal. 3.40. 153, 448 
 Franco-Texan Land Co. v. Chap- 
 
 tive (Tex.), 3 S. W. Rep. 31, 758 
 
 Frentz v. Harrow, 13 Ind. 507, 108 
 
 Frenz, etc., Co. v. Mielenz, 5 Dak. 
 
 J 3 6 > 266, 345 
 
 Frosh v. Holmes, 8 Tex. 29, 680 
 
 Fraser v. Jennison, 42 Mich. 206, 617 
 
 v. Little, 13 Mich. 195, 310 
 
 Frasier v. Huhble, 13 Ind. 432, 281, 284 
 
 Frazer v. Boss, 66 Ind. 1, 483 
 
 v. Smith, 6 Blackf. 210, 322 
 
 Frazier v. State, 106 Ind. 562, 230 
 
 v. Venon, 3 Wash. Ty. 392, 266 
 
 Frear v. Bryan, 12 Ind. 343, 601 
 
 Fredericks v. Judah, 73 Cal. 604, 623 
 
 Free v. Haworth, 19 Ind. 404, 378 
 
 Freeborn v. Denman, 2 Hals. (N. 
 
 J.) 190, 267, 344 
 
 Freedom, Town of, v. Norris, 12S 
 
 Ind- 377. 712 
 
 Frees v. Baker (Tex.), 6 S. W. Rep. 
 
 5 6 3. ' 309 
 
 Freeze v. De Buy. 57 Ind. 1S8, 678 
 
 Freitag v. Burke, 45 Ind. 38, 401; 
 
 Freligh v. Ames. 31 Mo. '253, 534 | 
 
 30 
 
 Co. 
 
 Freeman v. Bowman, 25 Ind. 236, 793 
 
 v. Hawkins, 77 Tex. 498, 155 
 
 v. Paul, 105 Ind. 451, 146 
 
 v. People, 4 Denio", 9, 257, 529, 
 
 57 8 . 737 
 v. Rhodes, 36 Minn. 297, 
 v. St. Louis Quarry Co., 
 Mo. App. 362, 
 
 v. Tranah, 12 C. B. 406, 
 v. Weeks, 45 Mich. 335, 
 French. Ex parte, 100 U. S. 1, 
 v. Cowan, 79 Me. 426, 
 v. Detroit Free Press 
 (Mich.), 4 S N. W. Rep. 615, 
 v. Edwards, 4 Saw v. 1215, 
 v. Hay, 22 Wall. 250, 
 v. Howard, 14 Ind. 455, 
 v. Shoemaker, 14 Wall. 314, 
 v. Snell. 37 Me. 100, 
 v. State, 12 Ind. 670, 
 v. State, Si Ind. 151, 
 Frenzel v. Miller, 37 Ind. 1, 
 Frevert v. Swift, 19 Nev. 400, 
 Frey v. Michie, 68 Mich. ^-3, 
 Friddle v. Crane, 68 Ind. 583, 
 
 v. Crane, 97 Ind. 497, 
 Frisk v. Reigelman, 95 Wis. 499, 
 Fritch v. Klausing (Kv.), 13 S. W. 
 
 Rep. 241, 
 Fritz v. Barnes, 6 Neb. 47^, 
 
 v. Clark. 80 Ind. 591, 
 Fry v. Bennett, 16 How. Pr. 3S5, 
 v. Bennett, 28 N. Y. 324, 
 v. Currie, 103 N. C. 203, 
 v. State, 81 Ga. 645, 
 Ft. Madison, etc., Co. v. Batavia 
 
 Bank, 77 la. 393, 
 Ft. Wayne, etc., Co. 
 
 Ind. 100, 
 Ft. Worth, etc., Co. < 
 
 75 T ex. 501, 
 Fulkerson v. Armstrong, 39 
 
 472, 
 Fuller v. Aderns, 12 Ind. 559, 
 v. Coats, iS Ohio St. 343, 
 v. Curtis, 100 Ind. 237. 
 v. Indianapolis, etc., Co., iS 
 Ind. 91, 
 
 v. Sweet, 30 Mich. 237, 
 v. Wright, 59 Ind. 333, 
 Fulmer v. Fulmer, 22 la. 230, 
 Full/, v. Wycoff. 25 Ind. 321, 
 Fulwider v. Ingels, 87 Ind. 414, 
 Furber v. Conway, 23 Mo. App. 
 
 412, 
 Furguson v. United States, etc., 
 
 Co., 11 N. Y. Supp. 738, 
 Furnival v. Boyle, 4 Russ. 142, 
 v. Stronger, 1 Bing. N. C. 68, 
 
 Beyerle, no 
 
 747. 
 Thompson, 
 
 266 
 
 40 
 
 96 
 
 127 
 
 316 
 59 2 
 
 6 57 
 496 
 
 72 
 6S0 
 601 
 
 3^3 
 
 252 
 
 774 
 597 
 3°9 
 59 2 
 608 
 
 5 6 7 
 
 J 55 
 
 601 
 
 6 35 
 640 
 96 
 614 
 469 
 4'3 
 
 490 
 
 790 
 
 612 
 Ind. 
 
 757. 7 6 » 
 Si 
 
 691 
 593 
 
 296 
 
 34 
 30S 
 
 554 
 604 
 
 572 
 762 
 
 729 
 
 ^34 
 426
 
 TABLE OK CASES. 
 
 lix 
 
 [References a 
 
 Furst v. Second Avenue Rv. Co., 
 
 72 N. Y. 542, 652, 657 
 
 G 
 
 Gaar v. Millikan, 6S Ind. 20S, 4S7 
 
 Gabe v. McGinnis, 55 Ind. 372, 399 
 
 Gabriel v. Mullen, 30 Mo. App. 464, 121 
 
 Gaff v. Greer, 8S Ind. 122, 399, 549 
 
 v. Hutchinson, 38 Ind. 341, 520, 
 
 581,718 
 
 Gage v. Bailey, 119 111. 539. 489 
 
 v. Downey, 79 Cal. 140, 6S2 
 
 v. Du l'uy, 127 111. 216, 120 
 
 v. Du Puy,. 132 111. 134, 560 
 
 v. Gates, 62 Mo. 412, 191 
 
 v. Reid. 118 111. 35, 271 
 
 v. Scales, 100 IH.218, 33 
 
 Gage Co. v. Fulton, 16 Neb. 5, 313 
 
 Gagg v. Vetter, 41 Ind. 2js. 539 
 
 (i. lines v. White (S. Dak.), 47 N. 
 
 W. Rep. 524, 78S 
 
 Gaither v. Wilmer, 71 Md. 361, 582 
 
 Galbreath v. Gray, 20 Ind. 290, 599 
 
 v. Trump, 8^ Ind. 381, 45, 7S 
 
 Gallup v. Henderson, 6 N.Y.Supp. 
 
 914, 791 
 
 Galpin v. Page, iS Wall. 350, 369, 
 
 ij4, 421, 667 
 
 Galvin v. State, 56 Ind. 51, 296 
 
 v. Woollen, 66 Ind. 464, 393, 394 
 
 Galveston, etc., Co. v. Cooper, 70 
 
 Tex. 67, 623 
 
 v. Nolan, 53 Tex. 139, 141 
 
 Gahvav v. State, 93 Ind. 161, 525 
 
 Gallagher v. llhnelberger, 57 Ind. 
 
 6 3> 5 6 5 
 
 v. Kilkearv, 29 111. App. 600, 466 
 
 v. Southwood, 1 Kan. 143. 757 
 
 Gallettly v. Barrackman, 12 End. 27c), 277 
 
 Gallimore v. Blankenship, 99 Ind. 
 
 39°, 163, 76S 
 
 Galloway v. State, 29 Ind. 442. 533 
 
 v. Week, 54 Wis. 604, " 559 
 
 Gallt v. Finch, 24 How. Pr. 193, 101 
 Gamble v. Gibson. 83 Mo. 290, 176 
 
 Gander v. State, 50 Ind. 539, 394 
 
 Gandolfo v. State, 11 Ohio St. 114, 514. 
 
 76s 
 
 Gandolphu v. State. 33 Ind. 439. 
 Gano v. Chicago, etc., Co., 66 Wis 
 
 1, 
 Ganson v. Madigan, 15 Wis. 144. 
 ( hint \ . Timmons, 78 Tex. 1 1, 
 Garber v. Doersom, 117 Pa. St. 162, 128 
 
 v. Morrison. ; la. 476, 
 
 v. State, 1)4 Ind. 219, 
 Gardner v. Case, 111 Ind. 494, 
 
 v. Fisher, n; Ind. 309. 399 
 
 v. Gardner, S7 X. Y. 14. 
 
 655 
 611 
 446 
 
 771 
 
 255 
 
 71 s 
 
 736 
 
 86 
 
 re to Pagi s. \ 
 
 Gardner v. Hanev. 86 Ind. 17, 
 V. llavuie. (.2 111. 291, 
 V. State, i) \ 1 nd. 489, 7 
 
 v. Stover, 43 Ind. 356, 
 Garland v. Wholebau, jo la. 271, 
 (jarlington v. Copeland, 25 S. C. 41, 
 Garner v. Beauchamp, 20 Mo. 318, 
 
 v. Gordon, 41 Ind. 92, 
 Garnhorts v. United States, 16 
 
 Wall. 162, 
 Garnet v. Rogers, 52 Mo. 145, 
 Garretl v..Shove, 15 R.I. 538, 
 
 v. State, 109 Ind. 527, 252. 
 
 Garrick v. Chamberlain, 100 111. (.76, 
 Garrigan v. Dickey, 27 X. E. Rep. 
 
 7'.v 345- 
 
 Garrigus v. Bennett, 9 Ind. 52S, 
 Garrison v. People. 6 Neb. 274, 
 
 v. State, no Ind. 145. 
 Garritee v. Popplein, 73 Md. 322, 
 ( rarsl v. State. 68 Ind. 101, 
 Garver v. Daubenspeck, 22 Ind. 
 238, 203, 296, 
 
 Garvin v. Daussman, 114 Ind. 429. 
 Gaskell v. Viquesney, 122 Ind. 244, 
 Gasper v. Adams, 24 Barb. 287, 
 Gass v. State. 34 Ind. 1.25, 
 Gates v. Andrews, 37 N. Y. 657, 
 
 v. Salmon. 2S Cal. 320, 
 
 v. Scott, 123 Ind.459, 2S7. ^79. 
 
 v. Walker, 35 Cal. 289, 
 Gatling v. Newell, 12 Ind. 116. 177, 
 
 Gaul v. Fleming, 10 Ind. 253. 
 Guarantee, etc., Co. v. Buddington, 
 
 2^, Fla. 514, 
 Gaven v. Dopman, 5 Cal. 342, 
 Gavisk v. McKeever, ^7 Ind. 4^4. 
 
 Gawtry v. Doane, 5] N. Y. 90, 
 Gay v. Davey, ^ Ohio St. 396, 
 
 v. Parport, 101 I'. S. 391, 
 Gaj'lord v. La Fayette, 115 Ind. 423. 
 (hi\ lords v. Kilshaw, 1 Wall. 81, 
 Ga/ette, etc., Co. v. Morss, do Ind. 
 
 ^53- 
 Geary v. Hangs ( 111. . :7X.E.Rep. 
 
 162, 
 Gebb v. Rose. [0 Md. 87, 
 Gebharl v. Burkett, 57 Ind. 578, 
 
 658,659, 
 Geiss v. Franklin Ins. Co., 123 Ind. 
 
 172, 
 Gemmell v. Butler. | Pa. St. 252. 
 Genella v. Relj'ea, 32 Cal. 150, 97, 
 Gent v. Lynch, 23 Md. 58, 
 George v. Brooks, 94 Ind. 274. 562, 
 v. Lut/. 35 Tex. 694, 
 v. State. 25 Tex. App. 229, 
 \ . Swafford, 75 la. 491, 
 
 440 
 
 7' 9 
 792 
 
 4 11 
 
 345 
 
 557 
 
 88 
 
 ''77 
 306 
 
 309 
 
 47 1 
 
 178 
 
 774 
 447 
 7^9 
 
 777 
 148 
 596 
 
 521 
 592 
 
 666 
 
 7; 
 728 
 16S 
 182, 
 
 47; 
 614 
 
 146 
 
 ",(> 
 jo8, 
 
 325 
 
 75' 
 47') 
 joS 
 
 7/4 
 
 642 
 -7i 
 56S, 
 691 
 
 783 
 
 141 
 109 
 
 325
 
 TABLE OF CASKS. 
 
 Georgia, etc., Co. v. Nelms, 71 Ga 
 
 Olds, 77 Ga 
 
 // 
 
 301, 
 Georgia R. R. Co 
 
 673, 
 Gerald v. Gerald, 31 S. C. 171, 
 
 v. Jones, 7 s [nd. 57 s . 
 Germain v. Mason, 12 Wall. 259 
 
 5 6 7 
 
 646 
 
 499 
 158 
 
 483 
 
 297 
 
 127 
 102 
 704 
 
 79 
 793 
 
 6 43 
 
 Gernon v. Hovt. 90 V Y. 631, 
 
 ell's Appeal, 84 Pa. St. 238, 
 Getman v. Ingersoll, 117 N. V.75, 
 Geveke v. Grand Rapids, etc., Co., 
 
 57 Mich. 589, 
 Gharkey v. Halstead, 1 Ind. 389, 
 Gheens v. Golden, 90 Ind. 427, 
 Gibbs \. Coonrod, 54 la. 736, 
 Gibbons v. Ogden, 6 Wheat. 44S, 
 v. Van Alstyne, 56 Hun. 639, 
 Gibson v. Choleau, 50 Mo. S5, 
 . ( Jarreker, S2 Ga. 46, 
 v. Hall, 57 Tex. 405, 
 v. Keyes, 112 Ind. 56S, 
 v. Lacy, S7 Ind. 202, 
 v. Schufeldt, 122 U. S. 27, 
 v. State, 9 Ind. 264, 792, 
 
 Giermann v. St. Paul, etc., Co., 42 
 
 Minn. 5, 
 Gilbank v. Stephenson, 30 Wis. 
 
 155, 3-5 
 
 Gilbert, Estate of, 104 N. Y. 200, 73 
 v. Allen, 57 Ind. 524, 5SS, 603, 604 
 v. Hall, 115 Ind. 549, 630, 6S3 
 
 v. Southern, Etc.", Co., 62 Ind. 
 522, 
 
 v. \\ eisch, 75 Ind. 557. 
 Gilchrist v. Rea. 9 Paige, 66, 
 Giles v. Caines, 3 Caines, 107, 
 v. Canary. 99 Ind. 116, 
 v. Law. 14 Ind. 16, 
 v. Little. 134 U. S. 645, 
 Gilman v. Oilman. 35 Barb. 591, 
 Gilmer v. Bird. 15 Fla. 401, 
 
 v. Hi-lev. 1 10 I'. S. 47, 573, 
 Gilmore v. Board, 35 Ind. 344, 
 v. Bright, 101 N . C. 382, 
 v. 1 lam. [5 N. Y. Sup. 391, 
 v. Pittsburgh, etc., Co., 104 Pa 
 St. 275, 
 Gillespie v. State. 9 Ind. 380, 
 Gillian v. Ball, 1.9 Mo. 2 19, 
 Gilliman v. Eddy, 8 How. Pr. 133, 
 Gillis v. Martin. 2 Dev. Eq. 470. 
 Gillooly v. State. 58 Ind. [82, 254 
 
 A', ferences arc to I',> 
 
 Girault \. Adams, 61 Md. 1, $3- 
 
 30^ Given v. Collins. 43 Ind. 271, 700 
 
 Givins v. Bradley, 3 Bibb. 192, 775 
 
 266 Glade v. Schmidt, 15 111. App. 51, 639 
 314 Glandy v. Lanning, 68 Ind. 142, 785 
 567 Glantz v. City of South Bend, 106 
 119, • Ind. 305, 293, 715 
 
 132 Glasgow v. Hobbs, 52 Ind. 239, 692 
 
 402 Glaspell v. Northern, etc., Co. 
 75 (Col.). 27 Pac. Rep. 248, 7S7 
 
 44 Glass v. Wiles (Tex.), 14 S.W. Rep. 
 
 544 
 291 
 160 
 
 636 Gleaves v. Davidson. 85 Tenn. 380, 
 731 Glenn v. Fant, 134 U. S. 39S, 
 
 v. Glore, 42 Ind. 60, 659, 733 
 
 v. Shelburne, 29 Tex. 125, 671 
 
 v. State, 46 Ind. 368, 378. ^69 
 
 472 
 
 Glidewell v. Daggy, 21 Ind. 95, 
 Glos v. Randolph, 130 111. 245, 
 Glore v. Hare, 4 Neb. 131, 
 Glover v. Benjamin. 73 111. 42, 
 
 v. Collins, iS N.J. L. 232, 
 
 v. Holman. 3 Ileisk. 519, 
 
 v. Lyon, 57 Ala. 365, 
 
 v. Stephenson. 126 Ind. 532 
 Goar v. Cravens, 57 Ind. 365, 
 
 v. Maranda. 57 Ind. 339, 
 Goddard v. Ordway, 94 U. S. 672, 
 
 v. Ordway, 4 Otto, 672, 
 Godfrey's Case, 11 Co. R. 45, 
 Godfrey v. Craycraft, Si Ind. 470, 
 
 v. Godfrey, 17 Ind. 6, 420, 
 
 v. Wilson. 70 Ind. 50, 
 Goffv. Scott. 126 Ind. 200, 
 
 213 Goldberg v. Utley, 60 X. Y. 427 
 
 142 
 
 62S 
 
 Hendy 
 
 Golden Gate, etc., Co. 
 
 Co., S2 Cal. 1S4, 
 Golden, etc., Co. v. Smith, 2 Dak. 
 
 Ty. 374. 
 
 Goldmark v.Rosenfeld,69 W T is,469, 
 
 Goldsberry v. Carter. 2S Ind. 59, 
 
 70 
 447 
 100 
 126 
 
 477 
 672 
 130 
 549 
 727 
 670 
 461 
 337 
 272 
 562 
 670 
 187 
 622 
 6 35 
 
 120 
 
 119 
 
 66 
 
 281 
 
 Gilpatrick v. Glidden, S2 Me. 201, 
 Gilpin v. Consequa. 3 Wash. C. C. 
 
 18 f. 
 Giltrak v. Watters, 77 la. 149. 
 
 burg v. Kuntx. 15 N. Y. Sup. 
 
 237, 
 
 4 J 3 
 
 4S3 
 
 17 
 
 J 4> 
 
 14^ Goldsby v. Robertson, 1 Blackf. 247, 709 
 
 614 Gong v. Stearns, 16 Ore. 219, 43S 
 
 217 Goodall v. Mopley, 45 Ind. 355, 596 
 
 Goodell v. Starr, 127 Ind. 198, 154, 2S5, 
 
 504 
 Good Intent, etc., Co. v. Hartzell, 
 
 j j Pa. St. 277, 260 
 
 Goodman v. Kennedy. 10 Neb. 270, 535 
 
 v. Niblack, 102 U. S. 556, 354 
 
 v. Pocock. 15 O^B. 576. 126 
 
 ( Goodnight v. Goar, 30 Ind. 41S, 604 
 
 Goodnow v. Plumb, 67 la. 661. 
 
 Goodrich v. Kriendersdorff. 27 Ind. 
 
 308, 
 
 v. Ihmton. 29 La Ann. 372, 
 v. Trustees, etc., 2^ Ind. 272. 
 Goodseil v. Taylor, |i Minn. 207. 
 v. Western Union Tel. Co., 9 
 N.Y. Supp. 425, 597 
 
 5S0 
 66 
 
 73 1 
 
 301 
 
 57- 
 39S 
 
 i<V> 
 
 --:■ 
 786 
 
 66 
 
 535 
 266 
 
 39 1 
 616 
 
 6'i6 
 661
 
 TABLE OF CASES. 
 
 lxi 
 
 R, ferences a 
 Goodwin v. Bunzle, ;<> N. Y. Sup. 
 
 Ct. 44 i. 3°7 
 
 v. Fox, 120 U. S. 77;, 207, 2ii, 319, 
 
 3 2 5 
 v. Fox, 129 U. S. 601, 
 v. Goodwin, 48 Ind. 5S4, 
 
 269 
 63, r.9. 
 
 229, 46S 
 
 L5i 
 
 743- 757 
 
 577, 691 
 
 605 
 
 v. Hilliard, 76 Iowa, 555, 
 v. Smith, 72 Ind. 113, 
 v. State, 96 Ind. q<;o, 
 v. Walls, 52 Ind. 268, 
 
 Goodwine v. Crane, 41 Ind. 335, 160, 
 
 769» 774 
 
 v. Hendrick, 29 Ind. 3S3, 179 
 
 v. Miller, 32 Ind. 419, 566 
 
 Gopsill v. Decker, 4 Hun. 625, 639 
 
 Gordon v. Brnner, 49 Mo. 570, 587 
 
 v. Carter. 79 Ind. 3S6, 599 
 
 v. Donahue (Cal.), 21 Pac. 
 
 Rep. 970, 675 
 
 v.* Donahue. 79 Cal. 501 6S2 
 
 v. Ogden, 3 Pet. Z^ 49 
 
 v. Spencer, 2 Blackf. 2S6, 517. 519 
 
 v. Stockdale, S9 Ind. 240, 70S 
 
 Gorsuch v. Rutledge, 70 Md. 272, 402 
 
 Gorley v. Sewell, 77 Ind. 316, 61 
 
 Goshen, Citv of, v. England, 119 
 
 Ind. 36S, " 52S, 679 
 
 v. Croxton, 34 Ind. 239, 36 
 
 Goss v. Mather. 2 Lans. 2S3, 5S9 
 
 v. Turner, 21 Vt. 437, 535 
 
 Gossard v. Woods, 98 Ind. 195, 399, 610 
 
 Gosset v. Howard, 10 Q^ B. 359, 670, 
 
 677 
 Gott v. Brigham, 45 Mich. 424, 419 
 
 v. Powell. 41 Mo. 416, 495,496, 497 
 
 537 
 
 5 
 467 
 
 739 
 
 164 
 
 26 
 
 703 
 
 5 '3 
 53° 
 
 7'," 
 593 
 
 Goudjr v. Werbe, 117 Ind. 154, 
 Gough v. Dorsey, 27 Wis. 119, 
 
 v. Root, 73 Wis. 32, 
 Gould v. Day, 94 U. S. 405, 
 
 v. Howe, 127 111. 251, 
 
 v. Raymond, 59 N. II. 260, 
 
 v. Weed, 12 Wend. 12. 
 Gozlerv. Georgetown, 6 Wheat. 593, 
 Grace v. Dempsey, 75 Wis. 313, 
 
 v. McArthur, 76 Wis. 641, 
 Gradin v. Le Roy, 2 Paige, 509, 
 Graeter v. De Wolf, 112 Ind. 1, 309, 311 
 
 v. State, [05 1ml. 271. 25 ;. 40 s 
 
 v. Williams, 55 1 nd. 461, 470 
 
 Graff v. Pittsburgh, etc., Co., 31 Pa. 
 
 St. 4S9, 701 
 
 Graham v. Bayne, iS How. 60, 
 
 v. Board, 25 Ind. 333, 
 
 v. Davis, 4 Ohio St. 362, 
 
 v. Henderson, 35 Ind. 195, 
 
 411. 
 
 V. Xowlin. 54 Ind. 389, 
 v. Payne, 122 Ind. 40;. 
 v. Spencer, 14 Fed. Rep. 603. 
 
 476 
 445 
 535 
 60 5, 
 782 
 
 55i 
 708 
 
 633 
 
 re to Pages.\ 
 
 Graham v. State,'''''' Ind. 386, 714. 
 
 716, 
 v. State. 28 Tex. A pp. 582, 
 v. Swigert, 12 1!. Mon.522, 32S. 
 Grand Chute, etc., Co. v. Wim 
 
 15 Wall. 355, 
 Grand Rapids, etc., Co. v. Diller, 
 1 10 Ind. 223, 
 v. Ellison, 117 Ind. 234, 520. 
 v. < rray, 38 Mich. 461, 
 v. Jarvis, jo Mich.3oS, 
 Grand Trunk Ry. Co. v. Cum- 
 
 mings, 106 U. S. 700, 
 Grandolpho v. State. 33 Ind. 439, 
 Granier v. Louisiana, etc., Co., 42 
 
 La. Ann. SSo, 
 Granger v. Parker, 142 Mass. 1S6. 
 \. Buzick, 3 G. Gr. (la.) 570, 
 Grant v. Connecticut, etc., Co., 2S 
 Wis. 3 S 7 , 
 v. Holmes, 75 Mo. 109, 
 v. Hubbell, 2 J. & S. (N. Y.) 
 224, 
 
 v. Phoenix Ins. Co., 106 U. S. 
 429, 6S, 72 
 
 v. Reese, S2 N. C. 72, 
 v. Westfall, 57 Ind. 121, 296, 
 
 Granville County, etc.. Board v. 
 
 State Board, 106 X. C. Si, 
 Graves, Ex parte, 61 Ala. 3S1, 
 
 v. Campbell, 74 Tex. 576, 
 
 v. Duckwall, 103 Ind. 560. 1(7. 
 Graves v. Maguire, 6 Paige, 379, 
 
 v. State, i2i Ind. 357, 251, 254. 
 405, 
 Gray v. Baldwin, S Blackf. 164, 
 
 v. Brignardello, 1 Wall. 627, 
 
 v. Bridge, 11 Pick. 1S9, 
 v. Cooper. 5 Ind. 506, 
 v. Dickey, 20 Ind. 96, 
 Graydon v. Gaddis, 20 Ind. 515, 
 \ . ( rray, 3 Litt. 465, 
 v. Montgomery, 17 la. 66, 
 v. Palmer. 2^ Cal. 416, 97, 
 
 v. Robinson, 90 Ind. 527, 179. 
 v. Schenck, 3 How. Pr.231, 
 v. State. 78 Ind. 68, 
 v. Stiver, 24 Ind. 174, 10S, 2SS, 
 
 v. Taylor (Ind.), 2S N.E. Rep. 
 220. 
 v. Thomas, 18 La. Ann. 412. 
 v. Winder, 77 Cal. 525. 
 
 Greadjf v. Readj . to Wis. 478, 
 Great Wesl Ins. Co. v. Pierce. 1 
 
 Wyo. 49. 
 Great Western, etc., Co. v. Wood- 
 mas, etc.. Co., [2 Col. 46, 
 
 700 
 70 
 
 •I"' 
 
 642 
 
 3 J 4 
 320 
 560 
 
 3^4 
 291 
 
 269 
 
 , S2 
 646 
 
 782 
 
 630 
 
 437 
 
 - 
 
 666 
 
 550 
 
 87 
 
 178, 
 
 495 
 44 1 
 
 s; 
 
 657 
 676 
 109 
 55s 
 
 37', 
 306 
 
 7'4 
 765 
 too 
 
 559 
 
 1 ' 3
 
 lxii 
 
 TABLE OF CASES. 
 
 A', r, i ences a 
 
 Greaves v. George, \g How. l'r. 79, 
 
 52 How. l'r. 58, 601 
 
 . freer, 58 Hun. 251, 265 
 
 \ State, 50 [nd. 267, |.o8 
 
 i h r g v. Moss, 14 Wall. 564, 509 
 
 Gregory v. Dodge, i| Wend. 593, 744 
 
 v. Gregorj',89 End. 345, 4°4 
 
 v. Perdue, 29 Ind. 66, iSS 
 
 v. Slaughter, [9 lnd. 342, 1S3, 493 
 
 v. State, 94 Ind. 384, 7- 9 
 
 \ . Van Voorst, 85 [nd. 10S, 748 
 
 Greelv \ . Hanman, 12 Col. 94, 217 
 
 Greeley v. Provident Savings Bank, 
 
 id; Mo. 212, 55° 
 
 Green v. Blackwell, 5 Stew. (N. J.), 
 768, 124 
 
 v. Castello, 35 Mo. App. 1^7. 208 
 v. Creighton, 10 Sm. cV M. 159, 13 
 v. Creighton, jj 1 low. 90, 7- 
 
 v. Elliott, 86 [nd. 53, 630 
 
 v. Fisk, 103 U. S. 518, 75 
 
 v. Milbank, 3 Abb. (N. C.) 138, 593 
 v. Robinson, 5 How. (Miss.) 80, 7SS 
 v. Ronen, 62 la. 89, 445 
 
 v. Smith. 21 111. App. 198, 383 
 
 v. Springfield, 130 111. 515, 490, 492 
 v. State, i" Neb. 102, 232 
 
 v. State. 88 Tenn. 614, 57S, 679 
 
 v. Watkins, 6 Wheat. 260, 141, 272, 
 
 276 
 
 v. White. 37 X. Y. 405. 556 
 
 Green Bay, etc., Co. v. Hewitt, 62 
 
 Wis. 316, 128 
 
 Greenfield v. State. 113 Ind. 597, -' > { 
 Greenman v. Cohee, 61 Ind. 201, 28S 
 ( ireenley v. State, 66 Ind. 141, 409 
 
 Greenough v. Greenough, 11 Pa. St. 
 
 5i 7- 9 
 v. Shelden, 9 la. 503, 55 | 
 
 Green River, etc., Co. \ . Marshall, 
 
 l_' [nd. 170. 276 
 
 Greensburgh v. Corwin, 58 [nd.518, 36 
 Greensburgh, etc., Co. v. Sidener, 
 
 |n In, I. |2|. l62. 766 
 
 ( rreenup v. Crooks, 50 Ind. 410, 4S8, 
 
 59 r, < 757 
 v. Stoker. 8 111. 202, 528 
 
 Greenwood v. State, 116 Ind. 485. 291, 
 
 647, 668 
 Graham v. Chantry, 69 la. 72S, 448 
 
 Gresley v. State, 123 Ind. 72, 217. 692 
 Grice v. Ferguson, 1 Stew. (Ala.) 
 
 7>l 
 
 Griebel \ . State, 1 1 1 [nd. 369, 592 
 
 Griesel v. Schmal, 55 [nd. 475, 27S, 394 
 
 Griffee v. Mann. 62 Md. 2 \.8, 64 
 
 ( rriffin \ . Barr, 60 Vt. 599, 610 
 
 v.Cranston, 5 Bosw. 658, 639 
 
 v. I [arriman, ~ \ [a. \ ;<>. 620 
 
 \ i ii iilin. in [nd. 17". 75, 
 
 re /<> Pages.] 
 
 Griffin v. Hodshire, 119 Ind. 235, 590, 
 
 599 
 v. Kemp, 46 Ind. 172, 604 
 
 v. Nelson, 106 N. C. 235, 446, 454 
 v. Pate, 63 Ind. 273, 525, 647, 786 
 v. Ransdell, 71 Ind. 440, 256 
 
 v. Reis. 68 Ind. 9. 295 
 
 v. Veil, 56 Mo. 310, 514 
 
 Griffiths, Ex parte, 118 Ind. S3, 5, 14, 
 
 26, 36 
 
 Griffith v. Baltimore, etc., Co., 44 
 
 Fed. Rep. 574, 643 
 
 v. C lift, 4 Utah, 462, 57 6 
 
 v. State, 12 Ind. 548, 252 
 
 Grigsby v. Purcell, 99 U. S. 505, 228 
 
 v. Schwarz (Cal.), 22 Pac. Rep. 
 
 1041, 5 lS 
 
 Grignon v. Astor, 2 How. 319, 12 
 
 v. Blaek. 45 N. W. Rep. 122, 398 
 
 Griggs v. Detroit, etc., Co, 10 Mich. 
 
 117. " 2 
 
 v. Houston, 104 U. S. 553, 643 
 
 v. Seeley, 8 Ind. 264, 640 
 
 v. Smith, 13 N. Y. Supp. 273, 657 
 
 Grimes v. Camberlain, 27 Neb. 605, 66 
 
 v. Duzan, 32 Ind. 361, 237, 398, 74S 
 
 v. Fall, 15 Cal. 63, 697 
 
 v. Martin, 10 la. 347, 538, 691 
 
 Grinnel v. Schmidt, 2 Sandf. 706, 59S 
 
 Grissom v. Moore, 106 Ind. 296, 215 
 
 Griswold v. Sharp, 2 Cal. 17, 7^i 
 
 Grogan v. San Francisco, 18 Cal. 
 
 590, 305 
 
 Groscop v. Rainier, 11 1 Ind. 361, 580, 
 
 624, 625, 686 
 
 Grose v. Dickerson, 53 Ind. 460, 638 
 Grose v. Fowler, 21 Cal. 392, 102 
 
 v. Haisley (Ind.), 28N.E.Rep. 
 123, 554 
 
 Groton, Town of, v. Hurlburt, 22 
 
 Conn. 178, 64S 
 
 Grover, etc., Co. v. Barnes, 49 Ind. 
 
 1 56, 182, 687 
 
 Groves v. Coon, 1 N. Y. 536, 21 
 
 \ . Maguire, 6 Paige Ch. 379, 462 
 
 v. Marks, 32 Ind. 319, 215, 525 
 
 v. Ruby, 24 Ind. 418, 4 J 3 
 
 Grows v. Maine, etc., Co., 69 Me. 
 
 I [2, 639 
 
 Grubb v. State, 117 Ind. 277, 251, 252, 
 
 255,67s, 685 
 
 Grubbs v. Morris, 103 Ind. 166, 761 
 
 Gruber v. Baker, 20 Nev. 453, 596 
 
 Gruhl v. Gruhl, 123 Ind. 86, 67 
 
 Grundy v. Pine Hill Coal Co. 
 
 (Ky.), 9 S. W. Rep. 414, 4 81 
 
 Guard v. Risk, 11 Ind. 156, 788 
 
 Guardian Savings Bank v. Reilly, 
 
 S Mo. App. 544, 64
 
 TABLE OF CASES. 
 
 Ixni 
 
 \Refet < / 
 
 Guarantee, etc., Co. v. Buddington, 
 
 2 | Fla. 514, 122, 
 
 Gudtner v. Kilpatrick, 14 Neb. 347, 
 Guenther v. Peeple, -4 N. Y. 100, 
 Guernsey v. Edwa"rds,26 N.II. 224, 
 Guez v. Dupuis, [52 Mass. 454, 
 Guice v. Stale. 60 Miss. 714, 
 Guilford v. Love, 49 Tex. 715, 
 Guidry v. Garland, 41 La. Ann. 756, 
 Guirdy v. Garland ( La.). 6 So. Rep. 
 
 5.63. 
 Guirl v. Gillett, 124 Ind. 501, 
 Gulf, etc., Co. v. Edwards, 72 Tex. 
 
 303. 497. 
 
 v. Keith, 74 Tex. 287, 
 \ . Pool, 70 Tex. 713, 
 Gulick v. Connely, 42 Ind. 134, 
 Gufletl v. Miller, [06 Ind. 75, 52, 
 Guinbel v. Pitkin, 113 U. S. ^45, 
 Gunter v. Lallan. 7 Cal. 588.' 
 Gunther v. Liverpool, etc., Co., 134 
 
 U. S. no, 
 Gurney v. Brown, 27 111. App. 640, 
 Gutbrecht v. Prospect Park, etc., 
 
 Co., 28 Hun. 497, 
 Gutperle v. Koehler, S4 Ind. 237, 268, 
 
 H 
 
 H. G. Olds Wagon Works v.Combs, 
 
 121 Ind. 62, 
 Habel v. State. 2S Tex. App. 588, 
 Habich v. Folger, 20 Wall. 1, 
 Hablichtel v. Gambert, 75 la. 539, : 
 
 Hacker v. Blake, 17 Ind. 97, 
 Hackett v. State, 113 Ind. 532, 147, 
 Iladdon v. Haddon, 42 Ind. 378, 
 Had ley v. Gutridge, 58 Ind. 302, 
 v. Hadley, 82 Ind. 95, 163,692, 
 v. 1 [ill, 73 Ind. 442, 1 17. 212, 361, 
 v. Milligan, 100 Ind. 49, 
 v. Prather, 64 Ind. 137, 
 v. State, 66 Ind. 27^, 
 Haebler v. Bernharth, 1 15 N.Y. 459, 
 Hagaman v. Moore, S4 Ind. 496, 
 Hagan v. Walker, 14 How. 29. 
 Hagar v. Reclamation District, m 
 
 U. S. 701. 
 Hagard v. Wason, 152 Mass. 26S, 
 Hagenbuck v. McClaskey, 81 Ind. 
 
 577. 
 I lager v. Hager, 3S Barb. 92, 
 Hagerty v. Lee (N. J.), 21 Atl. Rep. 
 
 933- 
 Hahn v. Behrman, 73 Ind. 120, 115, 
 
 v. Kelly, 34 Cal. 391, 421 668, 
 Haight v. Gay. 8 Cal.' 297. 
 1 1. lines v. Kent. 1 1 Ind. 120, 
 
 v. McLaughlin, [35 V . S. 5S4, 
 
 124 
 306 
 
 ''7 1 
 127 
 
 314 
 250 
 670 
 
 78 
 
 5° 
 
 759 
 
 454 
 529 
 
 535 
 626 
 
 7S1 
 
 137 
 489 
 
 6 43 
 612 
 
 146 
 269 
 
 557 
 ^54 
 (>33 
 288, 
 5S0 
 561 
 2S4 
 
 77' 
 734 
 76S 
 448 
 
 269 
 
 399 
 5 6 3 
 1 65 
 7*3 
 596 
 
 148 
 630 
 
 640 
 620 
 
 59i 
 
 141 
 670 
 
 4 
 614 
 662 
 
 are to Penes.} 
 
 Haines v . State, 7 Tex. App. 30, 
 Hake v. Strubel, 121 III. 321, 
 1 1. lie's Appeal, 44 Pa. St. 438, 
 I [ale v. Akers, [32 I . S. 554, 
 
 v. Matthew, 1 iS I nd. ^27, 
 Hall v. Brooks. 89 V Y. t,3, 
 Carter, 74 la. 364, 
 
 102 
 
 75» 
 1 1 1 
 695 
 v. Chicago, etc., Co., 65 la. 258, 525 
 V.Craig, 12; Ind. 523 630 
 
 v. Durham, 109 Ind. 434. 102. 164, 
 480, 643, 754 
 v. Durham, 113 Ind. 327. 53, 182 
 v. Gittings, 2 Harr. t \: J. 112, 73S 
 v. Hedrick, [25 Ind. 326, 400 
 
 v. Henline, 9 Ind. 256, 700 
 
 v. King, 29 Ind. 205, 35S, 581 
 
 v. Lyons, 29 W. Va. 410, 79 1 
 
 v. Marks, 34 111. 358, 3, ^2 
 
 Pav Rock, etc., Co. ,6 Col. Si. 1 2 | 
 
 773 
 619 
 
 4" 
 6 43 
 603 
 
 39- 
 662 
 
 496 
 
 467 
 67. 
 
 45 
 709 
 
 750 
 
 7S6 
 
 217 
 
 208 
 
 678 
 
 493 
 756 
 
 544 
 792 
 63S 
 306. 
 
 420 
 
 4J3 
 
 -7i 
 
 55. 
 616, 
 
 Reed, 17 Ohio, 49S, 
 
 v. State, 8 Ind. 439, 
 
 v. Spurgeon, 23 Ind. 73, 
 
 v. Stevens. 116 N.Y. 201, 
 
 v. Suitt, 39 Ind. 316, 
 
 v. Wadsworth, 30 W. Va 
 
 v. Weare, 92 U. S. 728, 
 
 v. Wells. 54 Miss. 2S9, 
 Hall's Sate, etc., Co. v. Rigby, 79 
 
 Ind. 150, 
 Halleck v. Janden, 34 Cal. 167, 
 
 v. Weller, 72 Ind. 342, 
 Hallet v. Jenks, 1 Caine's Cas. 43, 
 Hallock v. Portland. 8 Ore. 29, 
 Halloran v. Halloran (111.), 27 N. 
 E. Rep. 82, 
 
 v. State, So Ind. 5S6, 
 
 v. Texas, etc., Co., 40 Tex. 465, 
 Halsey v. Darling, 13 Col. 1, 
 
 v. Flint, 15 Abb. Pr. 367, 
 Halstead v. Brown, 17 Ind. 202, 
 Halstead Lumber Co. v. Sutton 
 
 (Kan.), 26 Pac. Rep. 444, 
 Ilalton v.Jones, 7 s Ind. 466, 
 Ham v. Carroll, 17 Ind. 442, 
 
 v. Greve, 41 Ind. 531, 207, 
 
 '307. 3'4- 3-5 
 v. Rogers, 6 Black. 559. 
 Hamilton v. Ames. 74 Mich. 298, 
 v. Barricklow, 96 Ind. 398, 
 v. Burch, 28 Ind. 233, 176, 17S, 775 
 v. Byram, 122 Ind. 2S3, 712 
 
 v. Elkins, 46 Ind. 213, 297. 785 
 
 v. Hart, 125 Pa. St. 142, 127 
 
 V. Moore, } Dall. 371, 228 
 
 v. Noble. 1 Blackf. iSS, 404 
 
 v. Pease, 3S Conn, nq, 620 
 
 v. Prescott, 73 Tex. 565, 486, 4S7 
 v. Ross, 25 Neb. 630, 610 
 
 v. Shoaff, 99 Ind. 63, 693 
 
 v. Summers, 13 r>. Mon. 11, 699
 
 lxiv 
 
 TABLE OF CASKS. 
 
 A', ferences are to P 
 
 Hamilton v. Winterrowd, 4. 
 
 I ml. 
 524,567 
 
 Hamlin v. Reynolds, 32 HI-**, £g 
 Hamlyn v. Nesbit, 37 [nd.284, 64, 2^9, 
 
 Hammv. Romine, 98 Ind. 77, 53 I >7S 8 i 
 
 793 
 Hamman v. Mink, 99 Ind. -77- ;J 
 
 Hammon v. Sexton, 69 Ind. 37- Il0 „ 
 
 [20, I p 
 
 Hammond v. Hopping, 13 Wend 
 
 5 °v. Hudson River, etc., Co., 20 
 Barb. ;; s . , 
 
 , Pinklow, 149 Mass. 356, 
 v. Schiff, 100 N. C. 161, 
 Hammond. City of, v. New York, 
 
 etc., Co., 126 Ind. 597- 35> 45. 59. 2I 7 
 Hammons % . Bigelow, 115 In< 1. 3<>3> 59 b 
 Hampshire, etc., Bank v. Billings, 
 
 17 Pick. 87, 
 Hampson v. Fall, 64 Ind. 3S2 
 Hampton v. Rouse, 13 Wall.i»7, 
 Hamrick v. Danville, etc., Co., 30 
 
 Ind. 147, _ T , 
 
 v. Danville, etc., Co., 41 Ind. 
 
 3 2 3 
 
 62 S 
 
 7'4 
 
 36 
 
 697 
 
 601 
 556 
 739 
 
 3 2 7 
 
 595 
 116 
 
 Hardaway v. Biles. 1 Sm. & Mar. 
 
 Harderle v. City of La Fayette, 20 
 
 Ind. 234. 
 Harden v. Fisher, 1 Wheat. 300, 
 Hardenbrook v. Ligonier.95 Ind. 70 
 Hardie v. Kretsinger, 17 Johns. 293, 697 
 
 39 1 
 6S9 
 3i3 
 57S 
 39- 
 99 
 
 209, 
 
 63 
 
 277 
 
 Hardin v. Clark. 32 S. C. 480, 
 v. Helton. 50 Ind. 319, 
 v. Owings, 1 Bibb. 214. 
 v. State, 22 Ind. 347. 
 v. Trimmer, 30 S. C. 391, 
 v. Watson, Ss Tenn. 593, 
 
 Harding v. Brophy (111.), 24 N. I 
 
 Rep. 55 8 ' T . 
 
 V. Cowgar, 127 Ind. 245, 
 
 v. Griffin, 7 Blackf. 462, 
 
 v. Whitney, 40 Ind. 379, 
 Hardt v. State", 13 Tex. App. 426, 
 Hardy, In re, 35 Minn. 193, 
 
 v. Blazer, 29 Ind. 226, 
 
 v. Chipman, 54 Ind. 591, 2S7, 
 
 v. Miller, 89 Ind. 440, 
 Hargens v. Goodman. 12 Ind. 629, 
 Hargrove v. John, 120 Ind. 285, 
 
 v. Washington. 32 S. C. 584, 
 Harker v. State, 8 Blackf. 540, 
 Harkev v. Cain, 69 Tex. 146, 
 
 160 
 562 
 601; 
 528 
 246 
 [, 114 
 601 
 728 
 287 
 
 675 
 
 638 
 
 45 2 
 700 
 
 581 
 
 Hanaw v. Bailey, 83 Mich. 24, 319, 321 Harkness v. Hyde, 98 U.S. 476, 630, 631 
 Hancock v. Heaton, 53 Ind. Ill, 
 
 250 
 
 756 
 
 601 
 37 
 
 J 59 
 27 
 
 669 
 
 655 
 
 v. State, ■ \ Tex. App. 392, 
 v. Town of Worcester (\ t.), 
 18 Ail. Rep. 1041, 
 Hand v. Atlantic, etc., Bank, 55 
 How. Pr. 231, 
 v Tavlor, 4 Ind. 409. 
 Handlan v. McManus, 100 Mo. 124, 
 Handly v. Anthony. 5 Wheat. 374, 
 Hanes v. Worthington, 14 Ind. 320 
 Hanf v. Northwestern Asso., 70 
 
 Wis. 150, 
 
 Hanlan v. Edwards, 13 Ind. 430, 2S2, 284 
 Hanna v. Aebker, 84 Ind. 411, 269 
 
 V Board. 29 Ind. 170, 02 
 
 v Ewing, 3 Blackf. 34, 4°4 
 
 Hannah v. Dorrell, 73 Ind - \ U >- '7 s - 775 
 Hannibal, etc., Co. v. Moore. 37 
 
 Mo. 338, 733 
 
 1 1 annum v. State, 38 Ind. 32, 188, 393, 
 
 401 
 
 Hanrick v. Patrick. 119 U- s - J 5". 
 Hans v. Louisiana. I 3 | U. S. I, 
 1 [ansel \ Morris. 1 Blackt. 307, 
 Hansher v. Hansher, 94 Ind. 20S, 
 Hanson v. Elton, 38 Minn. 493. 
 
 v. Frickes, 70 Cal. 283, 
 
 v Vol! (Cal.), 21 Pac. Rep. 971, 3 b 3 
 Harbaueh v. Albertson, 102 Ind. 69. 128 
 
 306 
 Harbor v. Morgan, 4 Ind. 158. 700 
 
 Harlan v. Edwards, 13 Ind. 430, 281 
 Harlan v. Stout, 22 Ind. 488, 496, 599 
 Harmann v. Ilartmetz. 12S Ind. 353, 02b 
 
 755 
 250 
 70c, 
 770 
 3°9 
 455 
 
 119 
 
 3°5 
 602 
 300 
 568 
 402 
 
 Herman v. Jeffries,4 Mont. 513 
 
 Harman v. State, n Ind. 311. 
 
 v. State, 22 Ind. 331, 256, 
 
 Harmon v. Chandler, 3 la. 150, 
 v. Herndon, 99 N. C. 477, 
 v. Lexington, 32 S. C. 5§3» 
 
 Harmony Club v. New Orleans Gas 
 Light Co. (La.), 7 So. Rep. 538, 
 
 Harness v. State, 57 Ind. I, - 
 
 Harpending v. Shoemaker, 37 Barb. 
 
 Harper v. Archer, 4 Sm. & Marsh. 
 
 99> 
 
 v.Bibb, 45 Ala. 670, 
 v. Jacobs, 51 Mo. 296, 6,291, 668 
 v. Pound, 10 Ind. 32, 
 v. State, 101 Ind. 109, 691, 792, 
 v Tahourdin, 6 M. & S. 383, 
 Harrell v. Harrell, 117 Ind. 94, 
 
 v. Seal, 121 Ind. 193, 
 Hamman v. Queen Ins. Co., 49 
 Wis. 71, 
 
 v. Wilkins, 20 Me. 93, 
 Harrington v. Roberts, 7 Ga. 510, 
 v. Sedalia, 9S Mo. 583, 
 v. State. 76 Ind. 112, 
 v. State. S3 Ala. 9, 
 
 46 
 703 
 
 537 
 
 315 
 
 30 
 
 793 
 3 X 3 
 274 
 
 77i 
 
 580 
 619 
 
 272 
 c6o 
 7S1 
 655
 
 TABLE OF CASES. 
 
 Ixv 
 
 [References a 
 Witherow, 2 Blackf. 
 
 Rep. 
 
 Harrington 
 
 37. 
 Harris v. Boone, 69 Ind. 300, 
 v. Carmack, 6 Dana, 242, 
 
 v. Central K. Co., 7S Ga. 525, 
 v. Clafflin, 36 Kan. ^43. 
 
 V. Clark. 4 How. l'r. 78, 
 v. Doe, 4 Blackf. 369, 
 
 v. Hannibal, etc., Co., 37 Mo 
 
 307. 
 
 v. Howe (Ind.), 27 N. E 
 
 S61, 
 v. Ingledew, 3 P. W. 9S, 
 v. Musgrove, 7- Tex. iS, 
 v. Muskingum, etc.. Co., 
 
 Blackf. 267, 
 
 v. People, 130 111. 457, 
 
 v. Regester, 70 Md. 109, 
 
 v. Rivers, 53 Ind. 216, 
 
 v. Rupel. 14 Ind. 209, 
 
 v. Shaffer, 92 N. C. 30, 
 
 v. Tomlinson (Ind.), 30 N. E. 
 
 Rep. 214, 
 v. Vandeveer, 21 N.J. Eq.424, 
 v. Wilson, 7 Wend. 57, 
 v. Wright, 123 Ind. 272, 
 v. Brooklyn, etc., Co., 100 N. 
 
 Y. 621, 
 v. Farnsworth, 1 Heisk. 751, 
 
 79 1 
 7S2 
 266 
 53 6 
 155 
 73 
 54' 
 
 5S7 
 
 30 
 134 
 669 
 
 2S7 
 6S1 
 
 3- 1 
 
 404 
 
 7S1, 792 
 
 646 
 
 775 
 
 4 
 
 700 
 
 395 
 
 4 1 
 74 
 
 v. I [edges, 60 Ind. 266, 368, 375, 446 
 
 v. McCormick, 69 Cal. 616, 
 v. Moselv, 31 Tex. 60S, 
 v. Moss, 41 La. Ann. 239, 
 v. Phoenix, etc., Co., S3 Ind. 
 
 399 
 141 
 
 7S 
 
 4 SS 
 597' 
 
 Harrison v. Price, 22 Ind. 165, 
 
 75". 75 8 > 759 
 
 v. Thurston, 11 Fla. 307, 71 
 
 v. Trader, 29 Ark. 85, 459 
 
 v. Young, 9 Ga. 359, 731 
 
 Harrison School Tp. v. McGregor, 
 
 96 Ind. 185, 162. 4.38, 511, 591, 792 
 
 Harrod v. Dismore, 127 I ml. 338, 504 
 Harshman v. Armstrong. 43 Ind. 
 
 126. 99, 105. 214, 263, ^ 
 
 Hasted v. Dodge, 75 la. 402, 472 
 
 Hart v. Barnes, 24 Neb. 7S2, 215 
 
 v. Burch, 130 111. 426, 601 
 
 v. Burch, 31 111. App. 22, 444 
 
 v. Burnett, 15 Cal. 530, 474 
 
 v. Foley, 67 la. 407, 707 
 
 v. Heilner, 3 Rawle, 407, 701 
 
 v. State, 26 Ind. 100, 1S2 
 
 v. State, 14 Neb. 572, 534 
 
 v. Walker, 77 End. 331, 288 
 
 Harter v. Eltzroth, in Ind. 159, 167,69s 
 
 Hartford, City of, v. Chipman, 21 
 
 Conn. 488, 590 
 
 Hartford Citv, etc., Co. Lowe, 
 125 Ind. 275. 520, 641 
 
 rr to I'. 
 
 Hartford Tp. v. Bennett, 10 Ohio 
 
 St. 441, 635 
 
 Hartlep v. Cole, toi Ind. |;\ 301, 
 
 307. 397i 685, < 7 
 Hartlepp v. Whitely (Ind.), 2S N. 
 
 E - Rep. 535, 
 
 Hartman v. Eveline, 63 Ind. 344, 748 
 
 v. Greenhow, 102 U. S. 672, 305 
 
 v. 1 had v. 57 I ml. 545. 590 
 
 Hart 00k v. Crawford, 85 Va. 413, 7S 
 
 Harvey v. Brickbin, 50 Hun. 376, 601 
 
 v. Cook. 24 111. App. 134, 576 
 
 v. Donnellan, 36 Ind. 501. 
 
 v. Fink, in Ind. 249, 70,9s, 126,450 
 
 v. Laflin, 2 1 ml. 477, 674 
 
 v. Parry, S2 Ind. 2<<^, 693 
 
 v. Sinker, 35 Ind. 341, 769 
 
 v. State, 40 Ind. 516, 731 
 
 v. Tyler, 2 Wall. 328, 691, 746, 762 
 
 Hasbronck v. City of Milwaukee. 
 
 21 Wis. 219, 6S9 
 
 Haskins v. St. Louis, etc., Co., 109 
 
 U. S. 106, 208, 31S 
 
 Hasselback v. Linton, 17 Ind. 545, 164 
 
 Hasselman v. Allen, 42 Ind. 257. 687 
 
 v. Carroll, 102 Ind. 153. 723 
 
 Hastings v. Halleck, 10 Cal. 31, 44S 
 
 Hatch v. Judd. 29 la. 95. 646 
 
 Hathaway v. Hathaway, 2 Ind. 513, 101 
 
 v. Hemingway, 20 Conn. 190. 535 
 
 Ilatten v. Robinson, 4 Blackf. 479, 525 
 
 Hatton v.Jones, 7S Ind. 466, 691 
 
 Hawes v. Clark, 84 Cal. 272, 640 
 
 v. People, 124 111. 560, 16. 441 
 
 v. People, 129 111. 123, 7;^ 
 
 v. Pritchard, 71 Ind. 166, 320 
 
 v. State, SS Ala. 37, ;2S 
 
 Hawkins v. Edwards, 1 la. 296, 523 
 
 v. Governor, 1 Ark. 570, 9 
 
 v. Hawkins, 2S Ind. 60, 106, 349 
 
 v. Heinzman, 126 Ind. 600, 274, 
 
 345- 781 
 v. Massie, 62 Mo 5S2, 64, 68 
 
 v. McDougal, 126 Ind. 544, 103, 
 146, 150, 266, 28 1 
 v. State. 24 Ind. 2SS, 47 
 
 v. State, 125 Ind. 570. 3, 7 
 
 v. State, 126 Ind. 294, 335, 462 
 
 V. State. 2; X. E. Rep. SiS, ' 4 
 
 Hawley v. Harrell, 19 Conn. 142, 127 
 v. Simmons, 101 111. 654, 467 
 
 V. Smith. 45 Ind. 183, 491, 563,606 
 
 Hawthorne v. East Portland, 12 
 
 Ore. 210, 325 
 
 v. State, 2S Tex. App. 212, 120 
 
 Haughey v. Wilson, 1 Hilt. (N.Y.) 
 
 250. " 386 
 
 Ilaun v. Wilson, 2S Ind. 296, 300 
 
 Hauser v. Roth, 37 Ind. 89, 163, 401, 
 
 403. 525. (.47
 
 Ixvi 
 
 TABLE OF CASES. 
 
 ' Reft >'< 
 Hausmelt v. Patterson, 124 N. Y. 
 
 $49- 596 
 
 . v. Niblack, 80 Ind. \<<: 691 
 
 .hurst v. Ritch, [19 N. V. 621, 391 
 Haverly, etc., Co. v. Howlutt, 6 
 
 574, r, 7° 
 
 Hay > it, 3 Ohio, 3S4, 582 
 
 " v. Short, |<) Mo. 139, 39 8 
 
 v. State, 58 Ind. 337, 521, 635, 736 
 
 n's Case, 2 Dall. 109 n, 5 
 
 Hayden v. Hayden, \<< Cal. 332, 523 
 
 ' v. Songer, s (l Ind. 46, 571 
 
 v. Wood-, t6 Neb. 306, 7S2 
 
 Haves. Ex parte (Ala.), 9 So. Rep. 
 
 435 
 
 nx Ind. 1, 768 
 
 v. Hayes, 7; Ind. 395, 33 r » 
 
 v. fosephi, 26 Cal. 535, 327 
 
 v. "Ken von, 7 R. I. 531, 7S1 
 
 v. Martin. (.5 Cal. 559, 479 
 
 v. Missouri, 1 jo I . S. 68, 303 
 
 v. Nourse, 107 N. V. ^77, 129, 350 
 
 n . ( >'Brien, jo N. E. Rep. 601, 353 
 
 \ Solomon, 90 Ala. 520, 64S 
 
 v. Sykes, 120 Ind. 180, 250,291,647 
 
 Haymond v. Saucer, 84 Ind. 3, 395 
 
 Haynes v. Nowlin (Ind.), 108 
 
 v. State. 45 Ind. 424, 788 
 
 v. Thomas, 7 [nd.38, 480 
 
 I lav- v. Ford, 55 Ind. 52, 421 
 
 " v. Hostetter, 125 Ind. 60, 713, 719 
 
 v. Hynds, 2S Ind. 531, 571 
 
 v. fohns, 42 Ind. 505, 261 
 
 v. State. 77 Ind. 450, 254, 40S 
 
 v. Walker. 90 Ind. 105, 296 
 
 v. Wilstach, 101 Ind. 100, 207. 213, 
 
 3-S< 339 
 
 Haywood v. Hedrick, 94 Ind. 3.(0, 394 
 
 Hazelhurst v. Morris, 28 Md. 67, 68 
 
 Hazleton v. Union Bank, 32 Wis. 
 
 34- 6 5 8 
 
 Hazelett v. Butler University, 84 
 
 Ind. J}0. 562 
 
 Hazewell v. Couser, Si N. Y. 630, 6S3 
 Heacock v. Hosmer, [09 111. 245, 646 
 v. Lubuke, 107 111. 396, 525 
 
 Head v. Longworthv, 15 la. 235, 6S9 
 Headl) v. Board, 1 Blackf. 116, 673 
 
 Heady v. Vevay, etc., Co., 52 Ind. 
 
 " 7-' 539 
 
 v. Wood. 6 Ind. Sj. 375 
 
 I leagv v. Black, 90 End. 53 (., s 7 
 
 V. State. 85 I lid 260, 703 
 
 Hearman v. Owen, 42 Mo. App.387, 545 
 
 I learn v. State. '.J Ala. 2l8, 672 
 
 Hearne v. City of Greensburgh, 51 
 
 Ind. 119. 530 
 
 1 [1 aston v. Cincinnati, etc., Co., 16 
 
 Ind. 275, 52S, 53O 
 
 v. Colgrove, 3 Ind. 265, 64S 
 
 re to Pages.] 
 
 Heath v. Erie, etc., Co., S Blatchf. 
 
 347^ 6o1 
 
 v. Keyes, 35 Wis. 668, 567 
 
 v. State. 101 Ind. 512, 24S, 251, 257 
 Heaton v. Knowlton, 65 Ind. 255, 330, 
 
 453^ -155 
 Heavenridge v. Moudy, 34 Ind. 28, 470, 
 
 597 
 I havener v. Saeger, 79 Ga. 471, 546 
 Heberd v. Myers, 5 Ind. 94, 514 
 
 v. Wines, 105 Ind. 237, 732 
 
 Heckle v. Crewe. 12^ 111. 58, 560 
 
 Heckert's Appeal, 13 S. ,v R. 48, 225 
 Heckett v. Lathrop, 36 Kan. 661, 156 
 Hiddirigh v. Dempsea, 12 App. 
 
 Cas. 107- 35 6 
 
 Heddrick v. Heddrick, 74 Ind. 7S, 202 
 Hedderich v. State, 101 Ind. 564, 102 
 Hedges v. Armistead, 60 Tex. 276, 313 
 Hedrick v. D. M. Osborne & Co., 
 99 Ind. 143. 394. 5 6 7» 773 
 
 v. Hedrick, 28 Ind. 291, 756 
 
 Heed v. Knox. S La. Ann. 73, 560 
 
 I [eeser v. Miller, 77 Cal. 192, 73 6 
 
 Heffner v. Day, 54 Ark. 79, 69 
 
 Hefner v. Northwestern, etc., Co., 
 
 123 U. S. 747. 4 S 9 
 
 Heffren v. Jayne, 39 Ind. 463, 304 
 
 Hege v. Newsome, 96 Ind. 426, 279, 296, 
 
 397. 6 9° 
 Ilegler v. Faulkner, 127 U. S. 482, 41S 
 Heilbron v. Fowler Switch Co., 75 
 
 Cal. |J<>, 100 
 
 Heilman v. Sh'anklin, 60 Ind. 424, 614 
 Heinev v. Garretson, 1 Ind. App. 
 
 54S," 265, 579, 708 
 
 Heinlen v. Cross, 63 Cal. 44, 335, 462 
 
 v. Southern, etc., Co., 65 Cal. 
 
 304, 447 
 
 Heitman v. Schuk, 40 Ind. 93, 393 
 
 Heizer v. Kellev, 73 Ind. 582. 159, 169 
 
 Helden v. Helden, 9 Wis. 557, 325, 341 
 
 Helena v. Albertose, S Mont. 499, 73S 
 
 Helm v. Boone, 6 J. J. Marsh. 351, 456 
 
 v. First Nat. Bank, 91 Ind. 44, 301, 
 
 78S 
 
 Helphenstine v.Vincennes National 
 
 Bank, 65 Ind. 582, 102, 281 
 
 Helms v. Wagner, [02 Ind. 385, 74S, 749 
 Hellebush v. Blake, 119 Ind. 349, Si 
 Heller v. Clark. 103 Ind. 591, 221, 361 
 Hemmenwav v. Corey, 16 Vt. 225, 112 
 Hemphill v. Black, oo' N. C. 14, 449 
 v. Collins. 1 17 111. 396, 438 
 
 Hemsley v. Myers, 45 Fed. Rep. 
 
 2S3, " 59* 
 
 I b instead v. Cargill (Minn.), 4.8 N. 
 W. Rep. 686, " 319
 
 TABJLE OF CASES. 
 
 References 
 
 Henderson, Ex parte, S4 Ala. 36, 438, 
 
 630 
 
 6 Fla. 279, 16, 519 
 
 Henderson v. Barbee, 6 Blackf. 26, 273, 
 
 546 
 v. Benson, 141 Mass. 218, 20S 
 
 \ Benson, 41 Miss. 218, 320 
 
 v. Burch, 10 Ind. 54, 446 
 
 v. Dickey, 76 Ind. 264, 709, 714 
 v. Dickey, 50 Mo. 161, ^ 2 
 
 v. Halliday, 10 Ind. 24, 214, 261, 263, 
 
 333 
 
 V. Henderson, no Ind. 316, 562 
 v. Henderson, 3 Hare's Ch. 
 
 100, 596 
 
 \ . Reed, 1 Blackf. 347, '767 
 
 v. State. 60 Ind. 296, 249, [.07 
 
 v. Winchester, 31 Miss. 290, 4S9 
 Hendrick v. Whittemore, 105 Mass. 
 
 2 3> '47. 28 5 
 
 Hendricks v. Frank, 86 Ind. 27S, 122, 
 
 !54. 3 6l > 53 2 
 
 v. Gilchrist, 76 Ind. 369, 590 
 
 v. State, 73 Ind. 482, ' 11S 
 
 Hendrickson v. Sullivan, 2S Neb. 
 
 790, 448 
 
 v. Walker, 32 Mich. 68, 625 
 
 Hendry v. Hendry, 32 Ind. 349, 635 
 
 Henley v. Mayor, 6 Bing. 100, 5S2 
 
 v. McNoun, 76 Ind. 380, 749 
 
 Ilenline v. People, Si 111. 269, 2S6 
 
 Hennessey v. State, 23 Tex. App. 
 
 340, 763 
 
 Hennies v. Vogel, S7 111. 242, 617 
 
 Henning v. State, 106 Ind. 3S6, 250, 
 
 253. 5 2 7i 579. 66S, 744 
 
 v. State, 24 Tex. App. 315, 761 
 
 Hennv Buggy Co. v. Patt, 73 la. 
 
 767, 291 
 
 Hepburn v. Dunlop, 1 Wheat. 179, ^2 
 Henri v. Grand, etc., Co., 59 Mo. 
 
 581, 191 
 
 Henry v. Carson, 96 Ind. 412, 569 
 
 v. Dean, 6 Dak. 7S, 73S 
 
 v. Hunt, 52 Ind. 114. nS 
 
 v. Ricketts, 1 Cranch. C. C. 545, 579 
 
 v. Sioux City, etc., Co., 70 la. 
 
 233- 622 
 
 v. State Bank, 3 Ind. 216, 37 
 
 v. Thomas, 11S Ind. 2^, 770 
 
 Henshaw v. McDowell, 99 N. C. 
 
 181, 20S 
 
 v. Robertson, 1 Bailey (S. C.) 
 
 Ch. 311, 4 S 9 
 
 Henslie v. State, 3 Heisk. 202, 2^1 
 
 Henson v. Ott, 7 Ind. 512, 601 
 
 v. Walts, 40 Ind. 170. 69, SS 
 
 Herbert v. City of North Hampton, 
 
 [52 M;bs. 266. eed 
 
 Herbison v. Taylor. 21; Neb. 217, 754 
 
 are /<> Pages.] 
 
 Herd v. Cist (Kv.j, 12 S. W. Rep. 
 
 466, 
 I [ereth v. Hereth, 100 Ind. 35, 26 
 
 I I. ill \ . ( tfggs, [2] 1ml. 471. 
 
 Hering v. Chambers, 103 Pa. St. [72 
 Herkimer v. McGregor, 126 Ind. 
 
 247. 
 Herman v. Francis Co., 7 Mo. App. 
 
 5 6 2, |p 
 
 Herndon v. Howard. 9 Wall. 604. ■;., 
 
 IJ 5 
 Herrick v. Butler, 30 Minn. 156, 
 
 v. Racine, etc., Co., 43 Wis. 93, 92 
 Herring v. State, 1 la. 205, 707 
 
 Ilerron v. Cole, 25 Neb. 493, 
 
 v. Cole, 25 Neb. 692, ^97 
 
 Hershey v. Knees, 75 Cal. 115, 782 
 
 Ilershman v. Hershman, 63 Ind. 
 
 451, 292,695,718 
 
 Herstein v. Walker, 90 Ala. 477, 490, 493 
 Hertzfield v. State, 6 Ind. 23, 249 
 
 Ilervev v. Parry, ^2 Ind. 2S3, 567 
 
 v. Savery, 48 la. 313, (.7^ 
 
 Herzeberg v. Sachse, 60 Md. 426, 54 
 Herzogg v. Chambers, 61 Ind. 333, 103, 
 
 [i 5 
 
 Heshion v. Scott, 94 Ind. 570, 2'.s, 337 
 
 Hess v. Cole, 23 N. J. L. 116, 650 
 
 v. Dean, 66 Tex'. 61 ;. 66S 
 
 v. Lowery, 122 Ind. 225, 23 N. 
 
 E. Rep. 156, i_pj 
 
 v. Hess, 119 Ind. 66, 749 
 
 v. Lowrey, 122 Ind. 225, 539, 540 
 
 Hessey v. Heitkamp, 9 Mo. App. 36, 306 
 
 Hessian v. State, iio Ind. 58, 760 
 
 Hessin v. Heck, S8 Ind. 449, 610 
 
 Hestres v. Brennon, 50 Cal. 210, 1^ 
 
 Hewitt v. Brown. 21 Minn. 163, 635 
 
 v. Buck, t 7 Me. i_|7, 704 
 
 v. Filbert, 116 U. S. 142, 212 
 
 v. Powers, S4 Ind. 29^, ^66 
 
 v. Young (la.), 47 N. W. Rep. ' 
 
 10S4, 59 7 
 
 Hexter v. Schneider, 14 Ore. 1S4. ^22 
 
 Hey v. Schooley.7Ohi0.pt. II, (S. p j 
 
 Heyl \. State, tog liul. 589, 2^, 529 
 
 Hey man v. McBurney, 66 Ala. 51, 
 
 Heymes v. Champlin, 52 Mich. 2;, 16S 
 
 Heyneman v. Blake, 19 Cal. ^79, 26 
 
 Hiatt \. Ballinger, 59 Ind. 303, 70 
 
 v. Renk, 6 | End. 590, 6 ; s 
 
 Ilibbitts v.Jack, 97 Ind. ^70, 479, 491 
 
 Hickam v. People (111.),' 27 N. E. 
 
 Rep. SS, 746 
 
 1 liekenbottom v. Delaware, etc., 
 
 Co., 122 N. Y. 91, 41 1 
 
 Hickey v. State. 23 Ind. 21, 251, 524 
 
 Hickox v. Elliott, 28 Fed. Rep. 117, 330 
 
 Hicks v. Bell, j Cal. 219, 4 
 
 v. Ellis, 65 Mo. 176, 6S0
 
 lxviii 
 
 TABLE OF CASES. 
 
 Rt t> >< na s arc to JPagi $ . 
 
 Iliiks v. Michel, 15 Cal. 107, 
 
 v. State, s 3 1 nd. 1 
 Hidden v. Jordan, 2S Cal. 301, 
 1 Ik'l \ . I [iel, 40 K;n 
 Higbee v. Moore, 66 [nd. 263, 
 
 429, 
 
 462 
 766 
 
 678 
 
 \ . Rodeman, 2 s N . E. Rep. 4 \i 
 
 Higgins v. Carlton. 28 Md. 115, 5S4 
 
 v. Kendall, 73 Ind. 522, 267, 2N9. 
 
 39 6 
 
 Higgs v. Hunt. 75 Mo. 106, 486 
 
 Higham v. Vanosdol, 101 Ind. 160. 703 
 
 v. Warner, 69 Ind. 1549, 401 
 
 Highfill v. Monk. M Ind. 203, 6S3 
 Hill v. Chicago, < ti .. Co.. 129 U.S. 
 
 '7"- 445 
 
 v. Chipman, 59 \\ is. 211, 521 
 
 v. Corcoran. 15 Col. 270, 620 
 
 v. Covell, 1 N. V. 522, 709 
 
 v. Finigan, 77 Cal. 267, 550 
 
 v. First Nat. Bank, 42 Kan. 364, 160 
 v. Hagaman, S4 Ind. 287, 
 
 v. Haverstick, 17 Ind. 517. 
 
 v. Hazen, 93 Ind. 109, 
 
 v. Heirsmons, 17 Hun. 470, 
 
 v. Hill, 6 Ala. [66, 
 
 v. Holloway, 52 la. 678, 
 
 v. Hoover. 5 Wis. 3S6, 
 
 v. Jamicson, 16 Ind. 125, 296, 
 
 x. Lewis, 45 Kan. 162, 
 
 v. Louth. 109 Ind. 315, 
 
 v. Marsh. 46 Ind. 218, 
 
 v. Newman, 47 Ind. 1S7, 
 
 v. Xisbet, 100 Ind. 341, 
 
 v. Pressley, 96 Ind. 447, 101, 
 
 v. Roach. 72 Ind. 57. 70, 451, 
 
 v. Starkweather. 30 Ind. 434, 
 
 v. State, 64 Ga. 453, 
 v. Weisler, 49 Cal. 146, 
 Hildreth v. Gwindon, 10 Cal. 490, 
 Hillenberg v. Bennett, SS Ind. 540, 
 Hilliard v. Beattie. 59 X. II. 462, 
 v. McDaniels, 48 \'t. 122, 
 v. Oram. 106 N. C. 407. 
 
 755 
 54 
 506 
 402 
 in 
 
 180 
 
 767, 
 
 76S 
 601 
 74S 
 
 597 
 162 
 289 
 
 149 
 
 79 2 
 
 1-0. 
 
 248 
 620 
 
 789 
 
 *53 
 
 221 
 
 53 r > 
 
 I 12 
 
 66 
 
 Hillistad x. Hostetter, 46 Minn. 393, 657 
 Hilltown Road, 18 Pa. St. 233. ' 64S 
 Hilton v. Southwick, 17 Me. 303. 621 
 1 linckley v. Oilman, etc., Co., 94 U. 
 
 >''7- lr S) x 36 
 
 Hinds v. Harbou, ^S Ind. 121, 67S 
 
 v. Tweedle, 7 How. Pr. 27S, 587 
 
 Hines v. Driver, 89 Ind. 339, 70,98. 174 
 
 v. Driver, 100 Ind. 3 15. 70. 791, 7^2 
 
 v. Durer, 89 Ind. 339. 783 
 
 Hinkle v. Ball, 34 Ark. 177, 434 
 
 V. Davenport. 38 la. 355. ^2p, 
 
 v. Holmes, 85 Ind. 405, 312. 313, 339 
 
 v. Margerum, 50 Ind. 240, 361, 399. 
 
 779 
 
 Hinkle v. Shelley, 100 Ind. SS, 
 Hinson v. Adrain, 91 X. C. 372, 
 Hinton v. Pritchard, 107 V C. 128, 
 v. Whittaker, 101 Ind. 344, i2JS, 
 Hintrager v. Mahoney, 78 la. 537, 
 
 Hintz v. Graupner (111.), 27 N.E. 
 
 Rep. 935, 
 1 lipes V. State. 73 Ind. 39, 
 Hipp v. Babin, 19 How. 271, 
 Hitchins v. Eardlev, L. R., 2 Prob. 
 
 ,v Div. 24S, 
 Hitchings v. Van Brunt, 3S X. Y. 
 
 33 Si 
 I lite v. Lenhart, 7 Mo. 22, 
 Hoag v. Alleghany City, 21 Pitts. 
 
 L. Jr. 46, 
 
 Hoar v. Leaman (Pa.), 1^ Atl. Rep. 
 
 7.0. 
 Hobart v. Hobart, 86 X. Y.636, 116, 
 Hohart College v. Fitzhugh, 27 X. 
 
 Y. 130, 
 Hoberg v. State. 3 Minn. 262. 
 Hobbs v. Beckwith. 6 Ohio St. 252, 
 \ . Hoard. 1 16 Ind. 376, 
 v. Cowden, 20 Ind. 310, 
 Hobler v. Cole, 49 Cal. 250, 
 Hockett v.Johnson, 87 Ind. 251, 
 Hockstedler v. Hockstedler, 10S 
 
 Ind. 506, 
 I lodge v. Drake, 60 Hun. 577, 
 Hodges v. Bales, 102 Ind. 494. 531, 
 
 v. Cooper, 43 X. Y. 216, 
 
 v. Kowing, 58 Conn. 12, 413, 
 
 v. Templer, 6 Mod. 191, 
 
 Hodgden v. Commissioners, 10 Kan. 
 637, 200, 
 
 Ilodkins v. Mead. 119 X. Y. 166, 
 
 Hodgson v.Jeffries, 52 Ind. 334. 
 
 I toes v. Boyer, 108 Ind. 494. 
 
 Iloev v. Pierson, 67 Wis. 262, 
 
 Ilogan v. Robinson, 94 Ind. 13S, 
 v. Ross, 11 How. 294, 
 
 Hoge v. Richmond, etc., Co., 93 U. 
 S. 1, 
 
 Hogshead v. State, 120 Ind. 327, 
 
 574i 
 
 Hogue v. McClintock, 76 Ind. 205, 
 
 Hogg v. State, 7 Ind. 551, 541, 
 
 Hohenthal v. Watson, 28 Mo. 360, 
 Ilohorst v. Hamburg - American 
 
 Packet Co.. 3S Fed. Rep. 273, 
 Hoke v. Applegate, 92 Ind. 470, 533, 
 Holborn Union v. St. Leonard's 
 
 Parish, 2Q.B. Div. 145, 
 Holbrook v. Connelly, 6 Ohio St. 
 
 i<n. 
 Holcroft v. King, 25 Ind. 352, 179, 
 
 274 
 461 
 
 44'' 
 
 548 
 
 124. 
 
 '-5 
 
 62S 
 662 
 
 594 
 
 7" 1 
 
 4 S 3 
 788 
 
 9 l 
 610 
 
 191 
 619 
 
 73 
 
 548 
 620 
 
 793 
 
 2 74 
 736 
 577. 
 787 
 
 691 
 
 55 1 
 650 
 
 755 
 582 
 
 692 
 
 595 
 
 66 
 
 120 
 
 337 
 
 3 SS 
 570, 
 79 1 
 379' 
 467 
 618 
 54 
 
 633 
 
 566 
 
 439 
 
 638 
 
 557
 
 TABLE OF CASES. 
 
 I x i x 
 
 A', ferences are to Pages. J 
 
 Holding v. Smith, 42 Ind. ; ;>■. 
 Holdridge v. Sweet, 23 [nd. [18, 
 Holladay v. Elliott, 3 Ore. [40, 
 Holland v. Challen, no U. S. 25, 
 \ . Jones, 9 Ind. 495, 
 v. Union County, 68 la. 56, 
 Ilollett v. Evans, 28 Ind. 61, 
 Thomas, 90 Ind. 398, 
 
 599 
 5 2 3 
 
 1 1 
 
 59 s 
 
 675 
 
 69 
 
 5^7 
 
 266 
 603 
 7 
 5' 17 
 545 
 
 6-70 
 
 Holliday v. Henderson, 67 Ind. 103, 435, 
 
 5 'J 1 
 
 Hollingsworth v. Koon, 117 111. 511, 353 
 
 v. State, 79 Ga. 605, 535 
 
 v. State, 8 [nd. 257. 261, 263 
 
 v. State, 111 Ind. 2S9, 239, 251 
 
 Holloran v. Midland Rv. Co.. 28 
 N. E. Rep. 549, 9 2, 103, 138, 150, 
 
 -"7- -'.',• 3 6 4i 447, 44^ 
 
 Holly v. Perry, 94 N. C. 30, 320 
 
 Holloway v. Gallias, 49 Cal. 149, 141 
 
 v. Holloway, 103 Mo. 274, 75 
 
 v. State, S3 Ind. 554, 528, 531, 679 
 
 v. Stephens, 1 Hun. 30S, 497 
 
 Holman v. Herscher (Tex.), 16 S 
 
 W. Rep. 984, 
 
 v. Langtree, 4.0 Ind. 349, 
 v. State, 105 Ind. 513, 
 Holmes v. Boyd, 90 Ind. t,t,2, 
 v. Braidewood, 82 Mo. 610, 
 v. Campbell, 12 Minn. 221, 
 v. Fairbanks, 17 Wis. 434, 546, 559 
 v. Gayle, 1 Ala. 517. 765 
 
 v. llinkle. 63 Ind. 518, 700 
 
 v.Jones, 121 N. Y. 461, 617 
 
 v. Phenix, etc., Co., 49 Ind. 356, 277 
 v. State, SS Ind. 145, 
 v. Stateler, 57 111. 209, 
 v. Turner Falls Co., 150 Mass 
 
 v. Wallace, 46 Pa. St. 266, 
 Holstein v. Adams, 72 Tex. 4S5, 
 Holt v. Edmondson, 31 Ga. 357, 
 
 v. Simons, 14 Mo. App. 450, 
 
 v. State. 11 Ohio St. 691, 514 
 
 v. Hoard. 55 Ind. 194, 
 Holten v. Holten, 5 Wkly. Dig. 14, 549 
 Holton v. Kemp, 81 Mo. 661, 677 
 
 Holtzclaw v. Ware, 34 Ala. 307, 224 
 Holzman v. Hibben, 100 Ind. 338, 7^2 
 Homan v. Brinckerhot'.i Denio, 184, 41 | 
 Home, etc., Co. v. Caldwell. S^ Ala. 
 607, 402 
 
 v. Camden, 2 H. Bl. 533. 441 
 
 Home Ins. Co. v. Duke, 75 Ind. 535, 394 
 Home Life Ins. Co. v. Dunn, 20 
 
 Ohio St. 175, 72 
 
 Home for Inebriates v. Kaplan 
 
 (Cal.), 24 Par. Rep. 119, 64 
 
 Hon v. State. 89 Ind. 249, 400 
 
 Honneycutt v. St. Louis, etc., 40 
 Mo. App. 67 |. 265 
 
 5-" 
 
 739 
 192 
 610 
 93 
 767 
 5 X 7 
 39! 
 
 I [ood v . Pearson, 67 [nd. 
 Hook v. Linton, io Pet. 107, 
 Hooker's Estate, In re, 7; la. 377, 
 Hooker \ . Brandon, 66 Wi 
 
 ■17" 
 Jl 5 
 
 2<jl 
 6lO, 
 638 
 697 
 
 76l 
 
 524 
 
 40S 
 28 
 
 56 
 663 
 
 45° 
 
 v. Eagle Hank, 30 N. Y. 83, 
 
 v. Village ofBrandon, 75 Wis.8, (>l\ 
 
 IIook>ett v. Amoskeag, etc., Co., 
 44 N. II. 105, 577 
 
 Hooper v. Beecher, 109 N. Y. 609, 12 \. 
 
 1 1-5 
 v. State (Tex.), 16 S. W. Rep. 
 6 55 , 
 Hoot v. Spade, 20 Ind. 326, 
 Hoover v. State, no Ind. 349, 
 
 v. Wood, 9 Ind. 2S6, 
 Hopcraft v. Keys, 9 Bing. 613, 
 Hope v. Blair, 105 Mo. S5, 
 Hopkins v. Hopkins. 39 Wis. 165, 
 
 v. Stanley, 43 [nd. 553, 692, 693, 695 
 Hopkinson v. Steel. 12 \'t. 582, ^7 
 
 Hopson v. Murphy, 4 Tex. 248, 4S7 
 Hoptv. United States, 104 U. S.631, 6S9 
 1 1 opt v. Utah. [20 U. S. 430, 531 
 
 Hord v. Noblesville. 6 Ind. 55, 301 
 
 Horn v. Indianapolis Nat.Bank, 125 
 
 Ind. 3S1, 149, 156, 411'), 488, $<)^, 650 
 Hornaday v. Shields, rig Ind. 201, 394 
 Hornbergerv.State, 5 Ind. 300, 232. 249. 
 
 401, 744 
 Hornbuckle v. Stafford, in U. S. 
 
 3 8 ?i 5°9. 573 
 
 Horicon Shooting Club v. Gorsline, 
 
 73 ^ Vis - 19 6 - 77 
 
 Hormann v. Ilartmetz, 12S Ind. 
 353- 295, 609, 752, 
 
 Horner v. Doe, 1 Ind. 130, 
 
 v. Hoadley. 97 [nd. 600, 743, 
 Hornsbv v. South Carolina R.Co., 
 
 26 S. C. 1S7, 
 Horton v. Green, 104 N. C. 400, 
 v. Sawyer, 59 Ind. 587, 
 v. Wilson, 25 Ind. 316, 162, 299, 767, 
 782, 786 
 
 75S 
 672 
 760 
 
 53* 
 454 
 350 
 
 Hose v. Alhvine, 91 Ind. 497, 
 Hostetler v. State. 62 Ind. 1S3, 
 Hoston v. Ducker, 86 Ky. 123, 
 Hotchkiss v. Jones, 4 Ind. 260, 
 
 v. Piatt, 66 X. Y. 620, 
 
 v. Piatt, 7 Hun. ;'.. 
 Houck v. Graham, 106 [nd. 195, 566, o N 
 Houk v. Allen. 126 Ind. 568, 620, 787 
 
 \. Barthold, 73 [nd. 21, 284, <<j<>. ''71 
 Hough v. Western, etc., Co., 1 Biss. 
 
 425. 
 
 Houghton, Appeal of. 42 Cal. 
 v. Joins. 1 Wall. 702, 
 
 House v. Duncan, 50 Mo. 4^3. 
 
 v. McKinney, 54 [nd. 240. 623 
 
 v. Wright, 22 liui. 183, 70 
 
 3 01 
 
 394 
 
 91 
 
 186 
 
 n6 
 
 270 
 
 61
 
 lxx 
 
 TABLE OF CASES. 
 
 249, 
 
 [References a 
 Houseman v. Roberts, 5 C. ..V P 
 
 Houston v. Briner, 59 Ind. 25, 
 
 \ . Bruner, 39 Ind. 376, 
 
 \ . Moore, 3 Wheat. 433, 
 
 v. Starr. 1 J Tex. 1 
 
 v. Ward, 8 Tex. 12 (., 
 
 v. William-. [3 Cal. 24, 
 Howard v. Carpenter, 22 Mil 
 
 v. Kopperl, 7 ) Tex. |.g |. 
 
 v. Russell, 7^ Tex. 171. 
 
 \. Ross I Wash ), jn Pac. Rep 
 526, 
 
 \ . Sexton, 1 Denio, 440, 
 
 v. Winter-. 3 Nev. 539. 
 Howe v. Briggs, 17 Cal. 385, 
 
 v. Fleming, 1 23 Ind. 2^2. 
 Howe, etc.,Co. v. Rosine,87 111. 165, 657 
 Howell v. Crutchfield, Hemp. 99, 434 
 
 \ . Foster, 25 111. App. 42. 
 
 v. Mill-. 53 N. Y. $22, 515 
 
 v. Morlan, 7S 111. 162, 
 Howes v. Halliday, 10 Ind. 339, 
 I [owie v. State. 1 Ala. 1 13. 
 Howk v. Allen. 126 Ind. 568, 
 Howland v. Reeves. 2^ Mo. App 
 
 ■15 s - 
 Howley v. Smith, 45 Ind. 1S3, 
 Howorth v. Scarce. 29 Ind. 27S, 
 I Io\ ey v. Chase, 52 Me. 304, 
 
 V. McDonald, 109 U. S. 1 qo, 
 
 ' 1 16 
 v. State. 1 i<; I nd. 386, 
 
 70, 7 S 4 
 
 199 
 7" 
 4 N 7 
 7. 9 
 192 
 676 
 
 3 l F 
 
 755 
 64S 
 79.5 
 788 
 
 7~~ 
 
 60 
 516 
 
 673 
 782 
 119 
 
 5 IG 
 
 79i 
 562 
 
 394 
 57" 
 116, 
 
 34' 
 58, 479 
 
 Hoxie v. County Commissioners, 
 
 25 Me. 333," 441 
 
 Hoyt, Kx parte, 13 Pet. 279. 438 
 
 I 1 1 ■■ ! v. William-. 1 1 Mo. 270, 7''-: 
 Hubbard v. Camperdown Mills, 26 
 
 S. C. 581. 650 
 
 Hubbell v. Broadwell, 8 Ohio, 120, 495 
 
 v. McCourt, 1 1 Wis. 58 1 in 
 
 \. Skiles, [6 tnd. 138, 599, 782 
 
 v. Woolf, 15 1 nd. 204, 603 
 
 Huber v. State. 57 hid. 341, 786 
 
 i [ubertz \ . Stat.-. ;n 1 mi. 37 |, 362 
 
 Hubble v. Osborn, 31 [nd. 249, ~,y> 
 
 \. Wright, -'3 Ind. 322, 554 
 
 I ! 1 bier v. Pullen, <> Ind. 273, 520 
 
 Nelson, 5 | Ala. 12, 1 
 Huckell v. McCoy, 38 Kan. 53, 
 Huckshold v. St. Louis, etc., Co., 
 
 mi 1 Mo. 548, 
 
 Hudelson v Am Ind. 99. 308 
 
 Hudgins v. Kemp [8 How. 530, 20S 
 Hudnil v. Nash, 1 C. E. Green (X. 
 
 .1-). 550, 134 
 
 I ludson \ I ' Ind. 391, 159 
 
 v. I Douser, 123 I nd. 3119, 570 
 
 v. S da. 2^^, 674 
 
 v. state. 1 Blackf. 529, 530 
 
 00 
 
 (.2 2 
 
 623 
 
 re to Pages.] 
 
 Hudson Canal Co. v. Pennsylvania 
 
 Co., 8 Wall. 270, 
 
 I lull" v. Cole, 4^ I ml. 300, 480, 
 
 v. Gilbert, 1 Blackf. 19, 
 x. Lafayette, 108 Ind. 14, 
 v. Shepard, 58 Mo. 242, 
 
 Huffman v. Hughlett, 1 1 Lea. 549, 
 v. Indiana Nat. Dank, 51 Ind. 
 
 394. 
 
 v. State, 28 Tex. App. 174, 
 Huffmond v. Hence. 1 28 I nd. 131, 532 
 
 Hufford v. State, 6 Ind. ]'^, 
 Hughes, Ex parte, n 1 U. S. 147, 
 Hughes' Appeal, 90 Pa. St. 60, 
 Hughes v. Aim-lee. 28 Ind. 346, 
 
 v. Commonwealth (Ky.), 14 S. 
 W. Rep. 682, 
 v. Detroit, etc., Co., 7S Mich. 
 
 399- 
 
 v. I' eeter, 18 la. 142, 
 
 v. Galveston, etc., Co., 67 Tex. 
 
 v. Hinds, 69 [nd. 93, 179, 
 
 v. Hughes, =54 Pa. St. 240, 
 v. McKee, 1 A. K. Marsh. 28, 
 v. Moore, 17 Mo. App. 14S, 
 v. People, 1 10 111. 330, 
 v. Swope (Ky.), 1 S. W. Rep. 
 
 394- 
 
 v. Wheeler, 76 Cal. 230, 640, 
 Hull v. Green, 26 I ml. 38S, 
 
 v. Louth, 109 Ind. 315, 725, 743, 
 
 v. Westcutt, 17 Fla. 280, 
 Hulton v. Upfill, 2 II. L. Cas. 674, 
 Humbert v. Brisbane, 25 S. C. 506, 
 Humble v. Bland, 6 Term. R. 255, 
 Hume v. Conduit, 70 Ind. 598, 147, 
 Hummel v. Tyner, 70 [nd. 84, 
 Humphrey v. Baker, 103 U. S. 730, 
 
 v. Ball, 1 Gr. (la.) 204, 
 Humphreys v. Klick, 49 Ind. 1S9, 
 v. State. 75 [nd. 469, 
 v. Stevens, 49 Ind. 491, 
 Humphries \. Davis, too I ml. 271, 
 
 265, 
 
 Hunderlock v. Dundee, etc.', Co., SS 
 
 [nd. 139. [16, 
 
 Hum- \. Reeves, 2 Gr. (la.) 190, 
 
 Hungerford v. Cushing, S Wis. 32 |, 
 
 Hunnicutt v. Peyton, 102 U.S. 333, 
 Hunsinger v. Hofer, no Ind. 390, 
 
 Hunt v. Blackburn, 127 U. S. 774, 
 v. Blanton, 89 Ind. 38, 
 v. Brennan, 1 I [un. 2 13, 
 v. Campb 11, 83 Ind. 48, 215, 
 v. Danforth, 2 Curt. C. C. 592, 
 
 305 
 
 ''15 
 755 
 32'. 
 633 
 589 
 
 268 
 
 -39 
 - fl 47 
 -54 
 438 
 490 
 786 
 
 64S 
 
 492 
 
 260 
 180 
 310 
 781 
 191 
 528 
 
 44 
 
 C >S3 
 
 5-4 
 700, 
 
 77-' 
 447 
 171 
 399 
 632 
 
 284 
 
 57" 
 45°- 
 
 45 1 
 77" 
 
 7"; 
 
 79- 
 5 r>r> 
 
 218, 
 
 3'M 
 
 498 
 
 743 
 
 537. 
 
 676 
 
 455 
 7" 
 6 34 
 
 5 2 5 
 590
 
 ABLE OF CASES. 
 
 lxxi 
 
 [References are to Pages.] 
 
 Hunt v. Hawlcv, 711 hi. [83, 
 
 v. Kemper, 9 S. W. Rep. S03, 
 
 v. Lane, ■» I nd. 2 j.S, 
 
 \ . State, |') ( ra. 255, 
 
 v. State, 28 Tex. App. 149, 
 
 Hunter v. Chrisman, 70 Ind. 439, 
 
 3 r,I > 
 v. Fitzmaurice, 102 Ind. 449, 
 
 297. 
 v. I- rench, 86 I ml. 320, 
 v. Harris, 24 111. App. 637, 
 v. Hatfield, 68 I ml. 416, 162, 
 v. Hunter, loo 111. 519, 
 v. Leavitt, 36 [nd. 141, 
 v. McLaughlin, 43 Ind. 38, 
 v. Miller, 17 [nd. 88, 
 v. Pfeifer, 108 1ml. 197, 
 
 v. State, 101 1 ml. 400, 256, 
 
 v. Trench, 86 Ind. 320, 
 Huntington v. Colman, 1 Blackf. 
 
 34 s - 57i. 
 
 v. Conkey, 23 Barb. 21S, 615, 
 v. Drake, 24 [nd. 347, 
 Huntington, City of, v. Breen, 77 
 
 Ind. 29, 
 Huntington Co. v. Kaufman (Pa.), 
 
 17 Atl. Rep. 595, 
 Hupp v. Mclnturt', 4 111. App. 449, 
 Hurd v. Karl, 4 Blackf. 184, 
 v. Newton, 36 Mich. 3^, 
 Hurlbut v. Hurlbut, 12 Ind. 346, 
 
 v. Thomas, 55 Conn. 181, 10 
 
 Atl. Rep. 556, 
 Hum, Ex parte (Ala.), 9 So. Rep. 
 
 5x5, 
 I lursen v. I <ehman, 35 111. App. 489, 
 Hursh v. Hursh, 99 Ind. 500, 81,99, 
 Hurst v. Ash Grove, 96 Mo. 168, 
 Huseman v. Sims, 104 Inch 317, 
 Husted v. Mead, 58 Conn. 55, 
 Huston v. McCloskey, 76 Ind. 3S, 
 
 v. Neil, 41 Ind. 504, 
 
 v. Vail, 51 I nd. 299, 
 
 v. Vail, 84 Ind. 262, 
 
 Hutchison v.Trauerman, 112 Ind. 21, 
 
 Hutkoff v. Demorest, 103 X.Y.377, 
 
 Hutts \ . Bowers, 77 Ind. 211, 
 
 v. Hutts, 51 Ind. 581, 261, 669, 
 v. Shoaf, 88 1 nd. 395, 
 Hyatt v. Clements, 65 Ind. 12, 614, 
 
 729, 
 v. Cochran, 69 Inch 436, 420, 
 v. Dusenhurv, ro6 X. V. 663, 
 v. Dusenbury, 1 Silvernail (N. 
 V.). 475. 
 
 v. Hyatt, 3 } Inch 309, 
 v. Mattingly, 6S Ind. 271, 
 v. Wolfe, 22 Mo. App. 191, 
 Hyde v. Curling, io Mo. 359, 
 
 11S 
 
 534 
 623 
 
 5 2 ! 
 
 II s 
 290, 
 
 785 
 
 559 
 762 
 
 68 
 -73 
 3'P 
 
 75 
 638 
 257 
 225 
 
 57' s 
 616 
 
 39 1 
 
 61 
 
 793 
 404 
 682 
 
 l 5° 
 
 14S 
 
 435 
 770 
 101 
 2SS 
 326 
 792 
 5S0, 
 771 
 
 599 
 621 
 
 357 
 480 
 
 4 
 4 f, 5 
 7<>3 
 296 
 
 615, 
 
 777 
 670 
 
 "4 
 
 -II s 
 291 
 
 79" 
 t 5 8 
 
 17s 
 
 Hyde v. Redding, 74 Cal. 493. 291 
 
 Hydraulic, etc., Co. v. Nciiincistcr. 
 
 15 Mo. App. 592, |i 7 
 
 Hycr v. Norton, 26 Inch 269, ij (/ . 
 
 3V> 
 Hyland v. Milner, 99 Ind. 30S, 537, 703 
 
 I 
 
 Ibley v. Thompson, 32 S. C.5S2. 94, 109 
 Idaho, etc., Co. v. Bradbury, 132 U. 
 
 S. 509, 1 650 
 
 Idley v. Bow en, 11 Wench 227, 112 
 
 Ikerd v. Beavers, 106 Inch 483, 4.12, 532. 
 
 625, 77'/ 
 
 lies v. \\ atson, 76 Ind. 359, 395, 396, 672 
 
 Illinois, etc., Co. v. Haskins, ii; 
 
 111. 300, 6S2 
 
 v. Slatton, 54 111. 133, 587 
 
 Improvement Co. v. Munson, 14 
 
 Wall. 442, 4S0, 643 
 
 Independent District, etc., v. Dis- 
 trict, etc.. 44 la. 201, 44S 
 Indiana v. Kentucky, 136 U. S. 479, 27 
 Indiana, etc., Co. v. Adamson, 114 
 Ind. 282, 202, 700, 764 
 v. Allen. 113 Ind. 5S1, 504 
 v. Birch 116 Inch 217. 669 
 
 v. Cook, 102 Inch 13}, 
 
 616 
 
 v. Finnell, 116 Inch 414, 39S, 550, 5S1, 
 709, 716 
 
 v. Keeney, 93 Ind. 100, 16S 
 
 v. McBroom, 98 Ind. 167, 265, 456 
 
 v. McKernan, 24 Inch 62, 599 
 
 v. Quick, mi) Ind. 295, 210 
 
 v. Routledge, 7 Ind. 25, 126,451, 72S 
 Indiana, etc.. Board v. Gray, 54 
 
 Ind. 91, 635 
 Indiana Pottery Co. v. Bates, 14 
 
 Inch 8, 599 
 
 Indianapolis, etc., Co. v. Anthony. 
 
 43 Ind. [83, 509, 568 
 
 v. Ballard, 22 Inch 44S, p. | 
 
 v. Beam, 63 [nd. 490; 64 Inch 
 
 597. 3h> 
 
 \ . Bush, IOI Ind. :;S2, 575, 6;' 
 
 708 
 
 v. Caven, 53 Ind. 258, 116, 525, 533 
 v. Christian, 03 Ind. 360, 
 v. Cincinnati, etc., Co., 4^ Ind. 
 281, 
 
 v. City of Indianapolis, 29 Inch 
 
 -45- 
 
 v. Clark, 21 Ind. 1511, 
 
 v. Doty. 7 Ind. 580, 277 
 
 v. Ferguson, 58 huh 445. 37., 
 
 v. Herkimer, |*> Inch 142, 10 s . 500 
 v. Horst, 93 I . s. j,)i. 
 
 v. Kinney, 8 Ind. 402. [88 
 
 v. Kostanzer, 58 Incl. 446, 170
 
 lxxii 
 
 TABLE OF CASES. 
 
 i References 
 Indianapolis, etc., Co. v. City of 
 
 Lawrenceburgh, 37 Ind. 1 S9, 505 
 
 v. Lew is, 1 tg Ind. 218, 70S 
 
 v. McCaffrey, 62 End. 552, 780 
 
 v. McLin, 82 Ind. (.35, 640 
 \ . Neglej . 62 Ind. 17s. 
 v. Petty, 30 Ind. 261, 394, 398 
 v. Pitzer, 109 Ind. 179, 527, 529, 737 
 
 v. Risley, 50 Ind. 60, 7- 
 
 v. Routledge, 7 Ind. J5, 2S7 
 
 v. Rutherford, 29 Ind. 82, 514, 580 
 
 v. Smythe, 45 Ind. 322, 295, 554 
 
 V. Solomon. 23 Ind. ^34, 419, 420, 
 
 4 22 > 735 
 
 v. Stout, 53 Ind. 143. 143. 297, 580 
 
 v. Summers, 2S Ind. 521, 635 
 
 v. Watson, 114 Ind. 20, 60 
 
 v. Wyatt, t6 liul. 204, 767 
 Indianapolis, City of, v. McAvoy, 
 
 86 Ind. 587, 440 
 
 v. Kollman, 79 Ind. 504, 757, 760 
 
 v. Lawyer, 38 Ind. 348, 5S0 
 
 v. Parker, 31 1 ml. 230, 79° 
 
 v. Scott. 72 Ind. 196, 538, 577, 579 
 
 Indianapolis v. Fairchild, 1 Ind. 315, 36 
 
 V. Patterson, [12 Ind. 344, co 
 Inferior Court v. Moni'oe, 21 Ga. 
 
 '71- 7 6 3 
 
 Inge! v. Seott, So Ind. 51S, 294, 774 
 I ngerman \ . State, 1 28 I ml. 225, 440, 592 
 
 Ingraham, In re, 64 N. Y. 310, 514 
 
 I ngram \ . State, 2 | Neb. 1, ^57 
 
 v. Wackernagel (la ), 48 N.W. ' 
 
 Rep. 998, _ 549 
 Insurance Co. v. Dunn, 19 Wall. 
 
 214, 72, 631 
 
 \ . Morse, 20 \\ all. 445, 72 
 
 v. Lea, 21 Wall. 15S, 746 
 Insurance Co. of X A. v. For- 
 
 cheimer, 86 A la. 541, 597 
 Insurance Co. of Pennsylvania v. 
 
 O'Connell, 34 111. App. 357, 551 
 International, etc., Co. \. State, 75 
 
 Tex. 350, ' 109 
 
 v. Underwood, 64 Tex. 463, 539 
 
 \. Underwood, 67 Tex. 5S9, 260 
 
 Ipwich v. Essex Co., co Pick. 519, 648 
 
 Ireland v. Emmet on, 93 Ind. 1, 692 
 
 v. Palestine, etc., Turnpike Co., 
 
 19 Ohio St. [69, 28 
 
 Iron Mountain Bank v. Armstrong, 
 
 92 Mo. 265, 12S 
 
 Irons v. Collins, 80 Ala. 10S, 673 
 lion Resolutions, In re, 9 
 
 Col. 620, 5 
 
 Irw in v. Anthony, S Ind. 470, 7 |o 
 
 \. Lowe, 89 End. 540, 368, 374 
 
 v. Smith, 72 Ind. 482, 297, 755, 770, 
 
 771 
 
 arc to Pages.] 
 
 Irwin v.Wickersham, 25 Pa.St.316, [98, 
 
 199 
 Isham v. State, 1 Sneed, in, 674, 079 
 Isler v. Bland, 117 Ind. 457, 266 
 
 Israel v. Jackson, 93 Ind. 543, 32, 532, 
 
 626 
 Ivens v. Cincinnati, etc., Co., 103 
 
 Ind. 27, 5 SS 
 
 Ives v. Merchants' Bank, 12 How. 
 
 159, 310, 32S 
 
 Ivory v. Delore, 26 Mo. 505, 75 
 
 Ivy v. Lusk, 11 La. Ann. 486, 135 
 
 J 
 
 J. Oberman Brewing Co. v. Ohler- 
 
 king, r , 111. App. 26, 62S 
 
 fackson v. Alabama, etc., Co., 5S 
 
 Miss. 64S, 72 
 
 v. Botsford, 8 Blackf. 194, 615 
 
 v. Bunnell, 113 N. Y. 216, 86 
 
 v. Cole, 81 Mich. 440, 125 
 
 v. Feather River, etc., Co., 14 
 
 Cal. iS, 555 
 
 v. German Ins. Co., 27 Mo. 
 
 App. 62, 024 
 
 v. Goddard, 1 Mass. 230, 94 
 
 v. Ilarbv, 70 Tex. 410, 623 
 
 v. Hardin. S3 Mo. 175, 699 
 
 v. Hesketh, 2 Stark. 454, 615 
 
 v. Ilosmer. 14 Mich. 88, 132 
 v. Myers, 120 Ind. 504, 74, 75 
 
 v. Relt", 24 Fla. [98, 300 
 
 v. Roe. 9 Johns. 77, 7SS 
 
 v. Sharpe, 29 Ind. 167, 792 
 
 v. Smith, 120 Ind. 520, 12, 2S6, 418, 
 
 420. 071 
 
 v. State, 14 Ind. 327, 538 
 
 v. State, 104 Ind. 516, 147, 284, 285, 
 
 419, 672 
 
 v. State, 28 Tex. App. 143, 549 
 
 v. Van Devender, 76 Ind. 27, 172 
 
 v. Wheeler, 6 Johns. 272, 34 
 Jacksonville, etc., Co. v. Peninsular, 
 
 etc., Co. (Fla.), 9 So. Rep. 661, 655 
 Jackson School Tp. v. Farlow, 75 
 
 Ind. 1 iS, 428. 5 1 1 
 
 Jacobs v.Graham, 1 Blackf.392, 101, 106, 
 
 349 
 
 v. Morrow, 21 Neb. 233, 450, 6S1 
 
 Jager v. Doherty, 61 Ind. 528, 113 
 
 James v. Dexter, 112 111. 489, 639 
 
 v. Mc Williams, 6 Munf. (Va.) 
 
 501, 192 
 
 v. Roberts, 78 Tex. 670, 315, 340 
 
 v. Woods, 65 Miss. 528, 314 
 
 Jamison v.Barelli, 20 La. Ann. 452, 468 
 
 v. Board, 56 Ind. 406, 6S0, 70s 
 
 v. Jarrett, 4 Ind. 187, 597
 
 TABLE OF CASES. 
 
 xxin 
 
 {References arc /<> Pag< •>.] 
 
 fanitor, In re, 35 Wis. 410, 9, 37! Jewell v. Chicago, etc., Co., ^f Wis. 
 
 Jaquay v. Hartzell, 1 I ml. App. 500, 708 j 610, 
 
 v. Cordesman,etc.,Co., 106 fnd. v. Parr, 13 Com. B. 909, 
 
 141, 6S9 Jewettv. Albany City Bank, 1 Clark 
 
 Jaqueth v. Jackson, 17 Wend. 434, 111 t (N. Y.), 59, 
 Jarboe v. Severin, 112 Ind.572, 215, 412, IJoab v. Sheets, 99 Ind. 328, 
 
 532, 646 Jobbins v. Gray, 34 111. App. 20S, 
 
 439 Joerns v. La Nieca, 75 la. 705, 
 162, 172, Johannes v. Yong, 42 Wis. 401, 66 
 
 Jared v. Hill, 1 Blackf. 155, 
 Jarvins v. Banta, S3 Ind. 528, 
 
 5 s " 
 
 '■i ; 
 55 ' 
 
 718 
 9 1 
 
 v. Hamilton, 37 Wis. S7, 
 Jaseph v. Schapper, 1 Ind. App. 154, 217 
 [auncey v. Rutherford, 9 Paige, 273, 142 
 )av v. Indianapolis, etc., Co., 17 
 
 Ind. 262, 638 
 
 Tean v. Ilennessv, 69 la. 373, 282 
 
 Jeansch v. Lewis (S. D.),4S N. W. 
 
 Rep. 12S, 5S1 
 
 Jefferson v. Chapman, 127 111. 43S, 401 
 Jefferson Co. v. Ferguson, 13 111. 33, 523 
 Jefferson County v. Hawkins, 23 
 
 Fla. 223, 514 
 
 Jeffersonville, etc., Co. v. Avery, 31 
 
 Ind. 277, 533 
 
 v. Bowen, 40 Ind. 545, 539 
 
 v. Bowen, 49 Ind. 154, 178, 775 
 
 v. Hendricks, 41 Ind. 48, 533 
 
 v. Lyon, 55 Ind. 477, 578 
 
 v. Swift, 26 Ind. 459, 195 
 
 v. Worland, 50 Ind. 339, 525 
 
 Jeffersonville, City of, v. Steamboat 
 
 Ferryboat, etc., 35 Ind. 19, 479, 4S1 
 
 Jeffries v. Lamb, 73 Ind. 202. 115, 141 
 
 v. Randall, 14 Mass. 205, 527 
 
 Jelley v. Gaff, 56 Ind. 371, 137, 520 
 
 v. Roberts, 50 Ind. 1, 43S, 764 
 
 Jellison v. Goodwin, 43 Me. 2S7, 572 
 
 v. Lafonta, 19 Pick. 244, 604 
 
 Jemison v. Walsh, 30 Ind. 167, 294 
 
 Jenkins v. Corwin, 55 Ind. 21, 99, 162 
 
 v. Long, 23 Ind. 460, 17S, 179, 1S1, 
 
 192 
 v. Peckinpaugh, 40 Ind. 133, 354 
 v. Rice, S4 Ind. 342, 247, 294, 295, 
 
 636 
 
 v. State, 7S Ind. 133, 704 
 
 v. Tobin, 31 Ark. 306, 572 
 
 Tenks v. State, 39 Ind. 1, 759, 765 
 
 Jenne v. Burt, 121 Ind. 275, 520 
 
 v. Marble, 37 Mich. 319, 274 
 
 Jenney v. Jenney, i| Mass. 231, 141 
 
 Jennings v. Bank, 13 Col. 417, 411 
 
 v. Commonwealth, 17 Pick. So, 674 
 
 V. Durham, 101 Ind. 391, 625, 774 
 
 Jerome v. McCarter, 21 Wall. 17, 316, 
 
 34 1 . 342 
 
 Jessup v. City Bank, 15 Wis. 604, 495 
 
 v. Eldridge, Coxe (N. J.), 401, 619 
 Jessup's Est., In re, Si Cal. 40S, 46^ 
 Jessup v. Spears, 3S Ark. 457, 127 
 
 96 
 Johet, etc., Co. v. Shields, 134 111. 
 
 209, 641, 642 
 
 John v. Clayton, 1 Blackf. 54, 273 
 
 v. Farmers', etc., Bank, 2 Blackf. 
 
 3 r >7- 59- 
 
 Johns v. Hedges, 60 Md. 215, 648 
 
 v. State, 104 Ind. 557, 252 
 
 Johnson v. Ahrens, 117 Ind. 600, 636 
 
 v. Ballew, 2 Port (Ala.), 29, 763 
 
 v.Bell, 10 Ind. 363, 743, 748, 759, 761 
 
 v. Breedlove, 72 Ind. 368, 562, 565, 
 
 567, 608, 636 
 
 v. Briscoe, 92 Ind. 367, 301, 397 
 
 v. Commonwealth, 87 Ky. 189, 248 
 
 v. Conklin, 119 Ind. 109, 520, 63S 
 
 v. Crawfordsville, etc., Co., 11 
 
 Ind. 280, 321, 635 
 
 v. Culver, 1 16 Ind. 278, 356, 575, 62J, 
 
 710 
 v. D'Heur. 71 Ind. 199, 60S 
 
 v. Dellidge, $■; Mich. 436, 671 
 
 v. Evans, 8 Gill. 155, 570 
 
 v. Gwin, 100 Ind. 466, 569 
 
 v. Herr, SS Ind. 2S0, (.55 
 
 v. Hobart, 45 Fed. Rep. 542, 62] 
 v. Holliday. 70 Ind. 151, 529, 737 
 v. Hosford, 110 Ind. 572, 399, 717 
 v. Inghram, 1 Grant's Case, 152, 639 
 
 , Jennings, 10 Gratt. 
 v. Johnson, 1 [5 Ind. 1 12, 
 v.josephs, 75 Me. 545, 
 v. Jouchert, 124 Ind. 105, 
 v. Kohl. 55 Ind. 454, 
 v. Lynch, 87 [nd, 320, 
 
 61. 
 
 [62 
 615 
 274 
 
 268 
 146 
 
 v. McCulloch, S9 Ind. 270, 745. 783 
 
 v. Macon, 1 Wash. (Va.) 4. 
 v. Malloy, 74 Cal. 430, 
 V. Maples, 40, 111. 101, 
 v. Maxwell. 87 N. C. IS, 
 v. Miller, 45 Ind. 29, 1 50, 
 
 v. Miller (la.), 4 S N. W. Rep. 
 10S1, 
 
 v. Miller (la.), 47 X. W. Rep. 
 
 9°3. 
 
 30. 
 
 Moore, 112 Ind. 91, 
 
 Nation, 
 
 Northern, etc., Co., 39 Minn. 
 
 Pontious, 11S Ind. 270. 
 Prine, 55 Ind. 35 1. 708, 
 
 Putnam, 95 Ind. 57, 
 
 60S 
 615 
 
 636 
 
 708 
 178 
 
 J 34 
 
 64 
 
 7- s 
 70S
 
 lxxiv 
 
 TABLE OF CASES. 
 
 Refi renct s are to Pagi f, | 
 
 Johnson v. Ramsay, 91 [nd. 189, 562 
 v. Slappej . 85 ( Ja. 576, 786 
 
 v. Stale, 2 [nd. 652, 53S 
 
 v. Mate. \l Ark. 391, 777 
 
 v. State, 65 [nd. 269, 763 
 
 V. State, Il6 Ind. 374, 2S5 
 
 v. Stebbins, 5 I nd. 36 1, 401 
 
 v. Stephenson, 104 Ind. 36S, 104. 
 214. 263 
 v.Thatcher, 7 Gray, 242; 12 
 Gray, [98, 115 
 
 v.Tyler, 1 Ind. A pp. 3S7, 620 
 
 v. Unversaw, 30 I ml. 435, 294, 350 
 v. Williams, jS Ark. 478, 112 
 
 Johnson School Tp. v. Citizens 
 Hank. Si [nd. 5 1 5, 736 
 
 Johnston v. Flint, 75 Tex. 379, 345 
 
 v. Holmes, 7,2 S. C. 434, 675 
 
 v. Jones, 1 Black. 2< 9, 700 
 
 v. Mason. 27 Mo. 511, 535 
 
 v. Morrow. 60 Mo. 339, 486 
 
 \ . State. 12S Ind. 16, ' ' 9 
 
 Johnston, etc., Co. v. Bartley, 94 
 [nd. 131, 702 
 
 Joint School District v. Kemer, 6S 
 Wis. 246, 66 
 
 Jolley v. Taylor, 1 Camp. 143, 697 
 
 Jolly v. Ghering, 40 Ind. 139, 735 
 
 v. Terre Haute, etc., Co., 9 Ind. 
 
 IT- 777 
 
 Jon.-. In re, 7,^ Minn. 405, 83 
 
 v. Ahrens, 116 Ind. 490, 636 
 
 v. Angell, 95 Ind. 376, 570. 786 
 
 v. Baird, 76 Ind. 164, 714, 71^ 
 
 v. Black, 48 Ala. 540, 28 
 
 v. Butterworth, 3 N.J. L. 345, .736 
 
 v. Cardwell, 98 Ind. 331, 604 
 
 v. Chicago, etc., Co., 42 Minn. 
 
 183, 79 2 
 
 v. Christian. 24 M<>. App. 540, 700 
 
 v. Doe. I Ala. 109, 290, 733, 765 
 
 v. Dowle, 9 M. & W. 19. 54 
 
 v. Droneberger, 23 Ind. 74, 207, 208, 
 209, 307, 318, 325, 330, 331 
 v. Etheridge,6 Porl ( Ala.),2oS, 132 
 v. Foley, i2i Ind. 1S0, [65, [96 
 
 v. Fortune, 128 111. 518, 478 
 
 v. Gregg, 1 7 Ind. 8 \. 589 
 
 v. Hathaway, 77 Ind. 1 >, [ 9 I . 199,635 
 v. Jones, 91 Ind. 37S, 222.22^, 760 
 \ . Jones, io8 N . Y. 4 15. 631 
 
 v. Julian, 12 Ind. 274, 5S1 
 
 v. Keen, 11 5 Mass. 1 70. 
 v. Layman, 123 [nd. 569, 740. 77}, 
 
 7S2 
 v. Lindsay, 98 [nd. 21S. C36 
 
 v. Mc( oca . 1 Blackl 404 
 
 v. Malloy, 15 S. W. Rep. [98, 340 
 v. Mathews 1 Miss.), 4 So. Ri 
 547. 4 SS 
 
 75i 
 746 
 301 
 
 533 
 63 
 
 53° 
 255 
 691 
 
 7S7 
 605 
 
 7 !9 
 66i 
 
 114 
 
 635 
 
 Jones v. Null, 9 Neb. 253, 
 v. Osgood, 2 Seld. 2^p r 
 v. Payne, 107 [nd. 307, 
 v. Pethast, 72 [nd. 158, 
 v. Rittenhouse, 87 Ind. 34S, 
 v. Snodgrass, 54 Mo. 598, 
 v. State, So (J a. 640, 
 v. State, 2 Blackf. 475, 529, 
 
 v. State, 1 1 [nd. 357, 
 v. State, 49 I nd. <j |<;, 
 v. State, 89 Ind. 82, 
 v. State, 1 12 Ind. 193, 
 v. State, 118 I ml. 39, 702, 
 
 v. Talbot. 4 Mo. 279, 
 v. Thompson, 12 Cal. 191, 
 v. United States Slate Co., 16 
 How. Pr. 1 29, 
 v. Van Patten, 3 Ind. 107, 170. is 
 
 648, 744 
 v. Wilder. 28 Minn. 23S, 675 
 
 v. Woodstock Iron Co., 90 Ala. 
 
 515. 3°9 
 
 v. Yetman. 6 Ind. 46, 45 
 
 Jonsson v. Lindstrom, 114 Ind. 152, 2S2 
 
 Jordan. Ex parte, 94 U. S. 24S, 114 
 
 v. Bowman, 28 Mo. App. 608, 147 
 
 v. De Heur. 71 Ind. 199, 608, 72s 
 
 v. National Shoe, etc., Bank, 74 
 
 N. Y.467, 414 
 
 v. Quick, 1 1 la. 9, 771 
 
 v. St. Paul, etc., Co. 42 Minn. 
 
 172, 
 Joseph v. Mathes, no Ind. 114, 
 
 v. Schnaider's Brewing Co. v. 
 
 Lewie, 41 Mo. App. 5S4, 
 Joseph Uhrig Brewing Co., In re, 
 
 1 1 Mo. App. 3S7, 
 Joslin v. Grand Rapids, etc., Co., 
 
 53 Mich. 322. 
 Joslyne v. Eastman, 46 Yt. 25S. 
 Josuez v. Conner, 75 N. Y. 150, 
 Jouchert v. Johnson, 108 Ind. 436, I 58 
 Joy v. State, 14 Ind. 139, 541 
 
 Joyce v. Dickey, 104 Ind. 183,91, 92, 103 
 Judah v. Trustee, etc., 23 Ind. 272, 6] | 
 Judd v. Martin, 97 Ind. 173, 
 
 \ . Small. 107 [nd. 30 s . 398, 
 
 fudge \ . Ohm, 89 Cal. 134. 
 
 judge of Oneida C. P. v. People, iS 
 
 Wend. 70. 
 Judge of Probate v. Stone, 44 N. II. 
 
 593< 
 Judson v. Love, 35 Cal. 463. 
 Judy v. Citizen, 101 Ind. 18, 
 
 v. Gilbert, 77 Ind. 96, 
 Julian \ . Beal, 3 | Ind. 371, 
 
 V. Rogers, 87 MO. 22<). 
 
 Julis v. Ingalls. 17 Abb. Pr. 448, n, 697 
 
 June v. Payne, 107 Ind. 307. 212, 331. 
 
 33-- 397. ''37 
 
 67S 
 
 447 
 
 124 
 
 78 
 
 692 
 
 5-4 
 
 447 
 
 435 
 
 "5. 
 
 140 
 
 34. 
 
 703 
 
 
 5S7 
 
 57. 
 
 474 
 
 209, 
 
 320
 
 TABLE OF CASES. 
 
 1 x x V 
 
 [References are to Pages.\ 
 
 Jussen v. Hoard, 95 Ind. 567, 
 Justice v. Justice, 115 Ind. 201, 
 
 K 
 
 The Vesal Eagle, 25 Wis. 
 
 59 2 
 
 J 59 
 
 Kabe 
 
 10S, 
 Kalamazoo, etc., Co. v. McAlister, 
 
 36 Mich. 327, 
 Kalckhofi v. Zoehrlaut, 43 Wis. 373, 
 Kalk v. Fielding, 50 Wis. 339. 
 Kain v. Gradon, 6 Blackf. 13S, 
 Kambieskey v. Stale, 26 Ind. 225, 
 Kamerick v. Castleman, 29 Mo. 
 
 App. 65S, 28, 293 
 
 Kammerling v. Armington, 58 Ind. 
 
 3S4, 
 Kansas Citv v. Allen, 2S Mo. App. 
 
 133. 
 
 Kansas Citv Court (Mo.), 16 S.W. 
 
 Rep. 853, 
 Kansas City, etc., Co. v. Doggett, 
 
 67 Miss. 44, 
 
 v. Smith, 90 Ala. 25, 
 Kansas, etc., Co. v. Couse, 17 Kan. 
 
 57 1 - 
 
 v. Hawley (Kan.), 27Pac.Rep. 
 
 170. 
 Kanouse v. Martin, 15 How. 19S, 
 Karr v. Karr, 19 X. J. Eq. 427, 
 Kasson v. Follett, 9 Col. 34S, 
 Kaster v. Kaster, 93 Ind. 581, 
 Kaukauna, etc., Co. v. Green Bay, 
 
 etc., Co., 75 Wis. 3S5, 
 Kaul v. Brown (R. I.), 20 Atl. Rep. 
 
 10, 620, 792 
 
 Kavanaugh v. Joncsville, 24 Wis. 
 ^6iS, 4S3 
 
 Kaw Valley Life Ass'n v. Lemke, 
 
 40 Kan. 142, 631 
 
 Kay v. Riley (111.), 26 N. E. Rep. 
 
 5-.v 655 
 
 Kealing v.\ an Sickle, 74 Ind. ^29, 70S, 
 
 7'.v 7 lS 
 Kearney v. Snodgrass. 12 Ore. 11, 
 Keating v. State, 44 Ind. 449, 
 Keck v. Umphries, 4 Ind. 492, 
 Kedy v. Kramer (Ind.), 28 N. E 
 
 Rep. 1 1 21, 
 Kee v. McDonald, 17 Ind. 518, 
 Keedy v. Newcomer, 1 Md. 241. 
 Keegan v. Carpenter. 47 Ind. 597, 
 Keeline v. Council Bluffs, 62 la. 4^0. iS§ 
 Kcelv v. Newcomer, 1 Md. 241, 703 
 
 Keen v. Schnedler, 15 Mo. App.590, 483 
 v. Whittinger, 40 Md. 4N0. 33S 
 
 Keenan, Ex parte, 21 Ala. 558, 555 
 
 Keenan v. State, S Wis. 132,' (70 
 
 Keene v. White, 136 Mass. 23, 20S 
 
 Keepfer v. Force, S9 Ind. Si, 70, 179. 451 
 
 7S0 
 
 619 
 692 
 
 537 
 116 
 
 37S 
 
 357 
 
 75S 
 
 40 
 
 557 
 73S 
 
 640 
 
 733 
 
 7- 
 '47 
 447 
 374 
 
 601 
 
 75° 
 678 
 
 79- 
 
 -» -» 
 
 70 
 704 
 
 5 6 3 
 
 159. 
 
 3°°. 
 
 Keesling v. Ryan, S4 Ind. S9, 
 
 \ . Watson, 91 Ind. 57S, 
 Kegg v. Welden, 10 Ind. 550, 
 Kehr v. Hall, 1 17 Ind. 405. 
 Keighler v. Savage, etc., Co., 12 
 
 Md.383, 
 Keiser v. Lines, 57 Ind. 431, 
 v. Lines, 79 Ind. 445, 
 v. Yandes, 45 Ind. 174, 
 Keisling v. Readle, 1 Ind. App. 240, 
 Keith v. Clark. 97 U. S. 4^4. 305. 
 Keitzinger v. Reynolds, 11 Ind. 545, 
 Kellenberger v. Boyer, 37 Ind. [88, 
 v. Perrin, 46 Ind. 282, 287, 
 
 Keller v. Boatman, 49 Ind. 101, 132, 
 Keller v. Williams. 49 Ind. 504, 
 Kelley v. Adams, 120 Ind. 340, 
 
 v. Bennett, 132 Pa. St. 218, 260, 
 v. Burnell, 14 Ind. 32S, 
 v. Fitzell, 65 Cal. S7, 
 v. Love, 35 Ind. 106, 
 Kellinger v. Roe, 7 Paige, 362, 
 Kellogg v. Cochran. S7 Cal. 192, 
 
 v. Nelson, 5 Wis. 125, 
 Kellum v. Berkshire, etc., Co., 101 
 ^ Ind. 455. 
 
 Kelly v. Chicago, etc., Co., 70 Wis. 
 335' 
 
 v. Davis, 1 Head. 71, 
 v. Israel. 11 Paige, 147, 129, 
 
 v. Murphy. 70 Cal. 560. 
 v. Norwich, etc., Co. (la.), 47 
 N. W. Rep. 986, 
 
 v. Troy, etc., Co., 3 Wis. 254, 
 Kelsey v. Campbell. 3S Barb. 23 s . 
 v. Chicago, etc., Co. (S. D.), 
 45 N. W. Rep. 204. 
 
 v. Cooley, 58 Hun. 601, 
 v. Western. 2 N. Y. 500, 
 Kelso v. Wolf, 70 Ind. 105, 
 Kemmler, In re, 136 U. S. 436, 
 Kemper v. Trustees, 17 Ohio, 293, 
 Kendall v. Post, 8 Ore. 141. 
 
 v. United States. 12 Pet. 524, 
 v. Wilkinson. 4 E. & B. 6S0, 
 Kendeli v. Judah, 63 Ind. 291. 
 Kennegar v. State, 120 Ind. 170, 253, 
 Kennedy v. Anderson, 9S Ind. i;i. 
 
 511 
 
 71- 
 
 21 
 53° 
 39 1 
 
 735 
 7" 1 
 66< 
 
 3 12 
 59* 
 
 7'"' 
 448 
 
 599 
 604 
 
 344 
 7 s " 
 168 
 
 736 
 
 143 
 470 
 
 537 
 
 v. Divine, 77 Ind. 490, 120, 
 
 v. Hanner, 19 Cal. 374, 496, 
 
 v. 1 tolladay, 10; Mo. 24, 
 
 v. McNichols, 2<> Mo. App. ir. 
 
 V. Moore, 17 S. C. 464, 
 
 v. Rohinson. 70 Ind. 524, 
 
 v. Shaw, 38 Ind. 474, 
 
 v. State. 33 Ind. 439, 
 
 v. State, 37 Ind. 355, 
 
 v. State. 53 Ind. 5 \2. 250. 
 
 4 6 3 
 547 
 !3- 
 763 
 
 663 
 617 
 210 
 
 -75 
 
 554 
 
 17 
 
 790 
 
 '7 
 
 5M 
 
 20 
 
 12 
 333 
 
 7S1 
 
 5-7 
 511. 
 
 "7 s 
 77! 
 497 
 620 
 665 
 ( ,,o 
 404 
 
 2.-0 
 
 769 
 291
 
 [XXVI 
 
 T VP.LK OF CASES. 
 
 Kennedy v. State, 62 Ind. 
 
 v. State, 66 End. 370, 
 Kennel! v. Judah, 63 Ind. 291, 
 
 v. Smith, loo Ind. 494, 
 Kenney v. Dodge, [01 Ind. 5731 
 Kennicutt v. Parmalee, io<^ N. Y. 
 
 650, 
 Kenosha Stove Co. v. Shedd (la.), 
 
 48 X. W. Rep. 933, 
 Kent v. Lawson, 12 Ind. 675, 20^;, 
 
 162 
 761 
 
 373 
 394 
 
 Si8 
 
 73S 
 _ . 
 299, 777, 786 
 v. Mahaffy, 2 Ohio St. 498, 430 
 Kentucky v. Dennison, 24 I low. 66, 440 
 Kenworthy v. Williams, 5 Ind. 375, 6S9 
 Kenzie v. Rhoeles, 13 Abb. I'r. 337, 270 
 Keokuk, etc., R. R. Co. v. Donnell, 
 
 77 la. 221, ^ 392 
 
 Kepler v. Conkling, 89 Ind. 392, 5 5 
 Kermeyer v. Kansas, etc., Co., iS 
 
 Kan. 215, 71 
 
 Kern v. Bridwell, 119 Ind. 226, 539, 
 
 v. Hinderkoper, 103 U. S. 485, 631 
 
 v. Maginniss, 41 Ind. 39S, 75 
 
 Kernodle v. Caldwell, 46 Ind. 153, 507, 
 
 609 
 v.Gibson, 114 Ind. 451, 16S, 296, ^oS, 
 
 '6S2 
 
 Kerr v. Lunsford, 31 W. V.i. 659, 5S0 
 
 v. Martin, 122 Pa. St. 436, 52$ 
 
 Kerstetter v. Raymond, 10 Ind. 199, 521 
 
 Kershman v. Swehla,62 la. 654, 490 
 
 Kershaw v. Wright, [15 Mass. 361, 765 
 
 Kesler v. Kesler, 39 Ind. 153, 36 
 
 v. Myers, 41 Ind. 543, 162, 164, 1S2, 
 
 1S3, 71.9, 770, 771 
 
 Kessler v. State, 50 Ind. 229, 679 
 
 r v. Stark, 19 111. 32S, 599 
 
 Ketcham v. Brazil, etc., Co., 8S Ind. 
 
 515, 525, 532. 567, 626, 647, 786 
 
 A', /', n H' ■ t are to Pages.] 
 
 Kimball v. Loomis, 62 Ind. 201, 
 
 Hill, 42 Ind. 64, 
 Ke-tuc-e-mun-guah v. McClure, 122 
 
 Ind. 541, 
 Key v. Robinson, S Ind. 36S, 
 Keyes v. State. 122 Ind. 527. 253, 
 Keyser v. Farr, C05 V . S. 265, 457, 
 
 " v. Wells, 60 Ind. 261, 
 Kibby v. Cannon, 9 Ind. 371, 
 Kidd v. Curry, 29 Hun. 215, 
 Kidwell v. Kidwell, S4 Ind. 22 |. 
 Kiefer vi. Winkens, 39 How. Pr.176, 112, 
 
 142 
 Kiernass v. \\ olff, 56 Hun. 647, 
 Kilbourne v. Thompson, [03 I . S. 
 
 Kile v. Yellowhead, 80 111. 20S, 
 Kiley v. Perrin, 69 ind. 387, 276, 117 
 K ilk- v. Reading Iron Works (Pa.), 
 [9 A tl. Rep. 5 (7- 66 
 
 Killian V. 1 '.i-rnm.mn, 57 Ind. 480, 692 
 
 Kitts v. Willson, [06 End. 147, 215 
 
 75'' 
 
 5- 1 
 401 
 
 5-9 
 
 459 
 
 296 
 
 162 
 497 
 
 168 
 
 126 
 
 256, 
 
 77 [ 
 
 v. Rogers, 7 So. Rep. 241, 345 
 
 v. Semple, 31 Cal. 662, [68 
 
 v. Thompson, 4 Cush. 441, 534 
 
 v. Whitney, [5 Ind. 280, 520, 789 
 Kimberly v. Arms Co., 40 Fed. Rep. 
 
 51 s - 45°> -15'. 45 6 
 
 Kimble v. Christie, 55 Ind. 140, 635 
 
 v. Seal, 92 Ind. 276, 17, ^2, 569, 574 
 
 Kimbrell v. Rodgers, 90 Ala. 339. 274 
 
 Kimbrough v. Mitchell, 1 Head. 
 
 (Tenn.) 539, 141 
 
 v. Pitts, 63 Ga. 1.96, ^2o 
 
 Kimes v. St. Louis, etc., Co., S5 Mo. 
 
 611, 4 S3, 
 
 Kimple v. Conway. 69 Cal. 71, 
 
 Kincaid v. Indianapolis Nat. Gas 
 
 Co., 124 Ind. 577, 
 
 v. Nicely, 90 Ind. 403, 
 King, Ex parte. 27 Ala. 4S7, 
 v. Aekley. 3 T. R. 250, 
 v. Barnes, 113 N. Y. 476, 
 v. Brewer, 19 Ind. 267, 
 v. Enterprise Ins. Co., 45 Ind. 
 510, 555, 
 Hampton, 3 Hay w. (Tenn.) 
 
 4J 
 60, 
 
 v. Hopkins, 57 N. II. 334, 
 
 v. 1 hint, 4 B. & A. 1 50, 
 
 v. I Iunter. 65 N. C. 603, 
 
 v. Justices, etc., 5 New & Man. 
 
 139. 
 v. McCann, 25 Ala. 471, 
 v. Rea, [3 Col. 1 « », 
 v. State, 1 5 Ind. 64, 
 v. Sutton, 8 15. & C. 417, 
 v. Wilkins, 10 Ind. 216, 
 v. Worminghall, 6 M. & S. 350, 
 
 Kingen v. State. 45 Ind. 518, 
 v. State. 46 Ind. 132. 
 
 Kingman v. Paulson, 126 Ind. 507, 
 
 Kingsbury v. Buckner, 134 U. S. 650. 
 
 v. Kingsbury. 20 Mich. 212, 
 Kinkads v. Myers, 17 Ore. 470, 
 Kinnaman v.Kinnaman, 71 I ml. 4 17, 
 622, 670, 
 Kinnard v. Carter, 64 Ind. 31, 
 Kinnev v. Dodge, [oi Ind. 573, 39;, 
 
 v.'Doe, 8 Blackf. 350, 
 
 v. I Iiekox. 2 | Neb. 107, 
 
 v. State, 117 Ind. 26, 
 Kinsey v. Satterhwaite, 8S Ind. 342, 
 Kinsley, City of, v. Morse, 40 Kan. 
 
 577' 
 Kions v. Day, 94 Ind. 500, 
 Kiphart v. IJrenneman. 25 Ind. 152, 
 
 v. Bridwell, 1 - Ind. 211, 
 
 4S4 
 
 96 
 
 397 
 640 
 
 43 s 
 102 
 
 639 
 3°9 
 
 613 
 
 45 + 
 
 40 
 
 52S 
 
 3 
 
 43 6 
 
 3 J 4 
 411 
 300 
 527 
 
 -77 
 102 
 
 661 
 
 5-7 
 504, 
 
 672 
 
 208 
 
 «3 
 6 33 
 420, 
 786 
 603 
 6x4 
 
 3+ 
 [50 
 
 791 
 
 741 
 
 56S 
 394 
 
 34- 
 395 
 
 43
 
 TABLE OF CASES. 
 
 l.xx 
 
 [Reft rences are to !'• 
 
 116, 
 
 Kirbv v. Bowland. 69 Ind. 290 
 v. Cannon, 9 Ind. 371, 
 v. 1 folmes, 6 Ind. [3 i, 
 v. Robbins, [3 Ind. 
 
 Kircher v. Milwaukee, etc., Co., 74 
 
 Wis. .(70, 
 Kirchner v. Wood. 48 Mich. 199, 
 Kirk v. State. 14 Ohio, 511, 
 Kirkpatrick v. Alexander, 60 Ind. 
 
 95. 
 
 v. Armstrong, 79 Ind. 3S4, 
 v. Cooper, 89 111. 210, 
 v. McDonald, 11 Pa. St. 3S7, 
 v. Reeves 121 Ind. 2S0, 371, 
 
 v. Taylor, 11b Ind. 329, 
 Kirland v. State. 43 Ind. 146, 
 
 v. Stumph, 73 Ind. 514, 
 Kirstein v. Madden 38 Cal. 15S, 
 Kiser v. Beam, 117 Ind. 31, 
 Kissel v. Anderson, 73 Ind. 4S5, 
 
 2 94> 5 1 !. 
 Kitch v. Otis, 79 Ind. 96, 70, 
 
 Kitchen v. Randolph, 93 U. S. 86, 
 
 Kitsmiller 
 
 ■7 s 
 172 
 287 
 284 
 
 556 
 
 64 
 
 619 
 
 397 
 614 
 
 3-3 
 59° 
 
 7 '3 
 
 ^3 
 G61 
 
 26S 
 
 5 2 3 
 
 4S0 
 
 279. 
 75i 
 793 
 33° : 
 337 
 Kitchen, 24 Iowa, 163, 147, 
 671 
 
 Kizer v. State, 12 Lea, 564, 534 
 
 Klebar v. Corvdon, $3 Ind. 95, 71, 126, 
 
 2 N 7, 456 
 
 Kleespies v. State, 106 Ind. 3S3, 162, 255 
 
 Klein v. Fischer, 36 Mo. App. 56S, 397 
 
 v. Hoffheimer, 132 U. S. 367, 56S 
 
 v. Russell, 19 Wall. 433, 643 
 
 Kleinschmidt v. Mc Andrews, 117 
 
 _ U. S. 2S2, 200, 741, 760, 767 
 
 Kleyla v. Ilaskett, 112 Ind. 515, 147, 1^4, 
 
 2S 4» 774 
 
 Klimple v. Boelter, 44 Minn. 172, 570 
 
 Kline v. Kline. 49 Mich. 419, 273 
 
 Klingler v. Smith (Ind.), 29 X. E. 
 
 , Rep. 364, 290 
 
 Klink v. Cuseta, 30 Ga. 504. 73 
 
 Klosterman v. Olcott, 25 Neb. 382, 692 
 
 Knapp v. Banks. 2 How. 73, qo 
 
 v. Dcvo, 108 N. Y. 51S, 46, 7S 
 
 v. Simon, 96 N. Y. 284, 401 
 
 Knarr v. Conaway, 53 Ind. 120. 121, 295, 
 
 ' 299. 44S. $33, 7S6 
 Kneeland v. American, etc., Co., 
 
 140 U. S. 592, 4S9 
 
 Knight v. Fisher, 15 Col. 176, 71S 
 
 v. Freeport, 13 Mass. 21S, 621 
 
 v. Low, 15 Ind. 374, 630 
 
 v. People, 11 Col. 30S, 31S 
 
 Knott v. Taylor, 99 N. C. qn, 2S1 
 
 Knoup v. Piqua Bank, 1 Ohio St. 603, 61 
 
 Knowles v. Dow, 22 N. II. 387, 569 
 
 v. State. 27 Tex. App. 503, 413 
 
 Knox v. Cleveland, 13 Wis. 245, —7 
 
 v. Exchange Bank, 12 Wall. 770. 136 
 
 7 '9 
 793 
 
 440 
 
 285 
 
 Knox v. McFarren, 4 Col. 34S, 
 v. Noble, 25 Kan. 449, 
 v. Trofalet, 94 Ind. 346, 712, 
 v. Work, 2 Binn. 582, 
 Knox Count v v. Aspinwall, 24 How 
 376, 
 
 v. Aspinwall, 21 How. 537, 
 Knox Co. Bank v. Lloyd, 18 Ohio 
 
 St. 353^ 
 
 Knusly v. Hire, 2S N. E. Rep. 195, 34^ 
 Koehlcr v. Adler, 7S X. Y. 287, ' 1547 
 Koerner v. State, 96 Ind. 243, 233, 234, 
 
 Kohler v. Montgomery, 17 Ind. 220, 102 
 
 665 
 
 74« 
 
 479 
 440 
 
 504 
 
 Kohn v. Lucas. 17 Mo. App. 29, 
 
 Koile v. Ellis, 16 Ind. 301, 
 
 Kolle v. Foltz, 74 Ind. 54, 
 
 Konor v. Happersett, 21 Wall. 162 
 
 Koon, Ex parte, 1 Denio, 644, 
 
 Koonce v. Butler, 84 X. C. 221, 
 
 Koons v. Blanton (Ind.), 27 X. E 
 
 Rep. 334, S 2 ^ 6 -^ 
 
 v. Mellett, 121 Ind.^S^, 120, 221, 44S 
 
 v. Price, 40 Ind. 104. 520 
 
 v. Williamson, 90 Ind. 599, 76 
 
 Kopelke v. Kopelke, 112 Ind. 43^, 6S7, 
 
 692, 744 
 Korrady v. Lake Shore, etc., Co. 
 
 (Ind.), 29 N. E. Rep. 1069, 579, 709 
 Kountze v. Omaha Co., 107 U. S. 
 
 37S, 
 Krack v. Wolf, 39 Ind. 88, 
 Kraft-Holmes, etc., Co. v. Crow, 36 
 
 Mo. App. 2SS, 
 Krall v. Libbey, 53 Wis. 292, 
 Kramer v. Matthews. 68 Ind. 172, 
 Krapp v. Haner, 38 Kan. 430, 
 Kreite v. Kreite. 93 Ind. 5S3, 
 Kreitline v. Driskill, 106 Ind. 359, 
 
 v. Franz, 106 Ind. 359, 52, 
 
 Kress v. State, 65 Ind. 106, 
 
 Krewson v. Cloud, 45 Ind. 273, 
 
 Krippendorf v. Hyde, no U.S. 276, 114 
 
 Krug v. Davis, S5 Ind. 309, 146 
 
 v. Davis, 101 Ind. 75, 506, 50S, 562, 
 
 629/712 
 
 Kruidener v. Shields. 77 la. 504, 620 
 
 Krutz v. Craig, 53 Ind. 561, 7^2. 783 
 
 v. Griffith, 68 Ind. 444, ^33 
 
 v. Howard. 70 Ind. 174, 299. ^,33, 786 
 
 Kshinka v. Cawker. 16 Kan. 63, 7^7 
 
 Kuh v. Metropolitan Rv. Co.. 26 J. 
 
 & S. (X. Y.) 138, 611 
 
 Kuhlman v. Medlinka, 29 Tex 385, 7og 
 Kuhnert v. Conde, 39 Kan. 265, 100 
 
 Kuhns v. Gates, 92 Ind. 66, ,71 
 
 Kundingerv. Saginaw. ;,) Mich. 3;;. 61 
 Kundolf v. Thalheimer, 12 N. Y". 
 591, 217 
 
 308 
 690 
 
 557 
 
 53 
 618 
 282 
 
 7f 
 781 
 491 
 567
 
 [XXVlll 
 
 TABLE OF CASES. 
 
 [References are to Pages J 
 
 Kuntz v. Sumption, 1 17 Ind. 1. 5, 7- 121, 
 
 74S 
 401 
 535 
 561 
 
 2I 5 
 2S2, 285 
 
 537 
 Stra. 
 
 718 
 
 Kurt/ v. Carr, 105 Ind, 574. 
 V. Frank. 76 [nd. 594, 
 
 Kusler v. Crofoot, 78 Ind. 597, 
 
 K\ le \ . Board, 94 I rid. 115, 
 v. Frost, 29 Ind. 382, 
 v. Kyle, 55 I nd. 387, 
 v. .Miller, 108 Ind. 90, 
 
 Kynaston v. Mayor, etc., 
 
 L'Hommidieu v. Cincinnati, etc., 
 
 Co., 120 Ind. 435, 52, 772 
 
 Labold v. Wilson, 4 Ohio C. C. 345, 756 
 Lackawanna, etc., Co. v. Doak, 52 
 
 Pa. St. 379, 570 
 
 Lace v. Fixen, 39 Minn. 46, 646 
 
 Lackey v. Hernby,o, [nd. 536, 375, 628 
 v. "Pearson, 101 N. C. 651, 413 
 
 Lacroix v. Camors, 34 La. Ann. 639, 467 
 La Croix v. Commissioners, 50 
 
 Conn. 321, 61 
 
 Lacy v. Fairman, 7 Blackf. 55S, 322 
 Ladd v. Couzins, 35 Mo. 513, 456 
 
 Ladow v. Groom, 1 Denio, 429, 61 
 
 La Fayette, etc., Co. v. Adams, 26 
 
 Ind. 76, 572 
 
 La Fayette Bank v. Buckingham, 
 
 12 Ohio St. 419, 751 
 
 La Fayette, etc., Co. v. Geiger, 34 
 Ind. 185, 5 
 
 v. New Albany, etc., Co., 13 
 Ind. 90, 530 
 
 La Fayette, City of, v. Allen, Si 
 Ind. [66, 716 
 
 v. Weaver, 92 Ind. 477, 623 
 
 La Follettev. Higgins, 169 Ind. 241, 279, 
 666, 6S2, 719 
 Lagro, etc., Co. v. Eriston, 10 Ind. 
 
 34*. 7S2 
 
 Laindley v. Kline, 21 W. Va. 21, 444 
 
 Lake v. Bender, iS Nev. 361, 784 
 
 v. Gibson, 2 Coins. 188, 414 
 
 v. Halbert, 2 Dall. 41, 93 
 
 v. Jones, 49 Ind. 297, 179 
 
 v. Lake. 99 Ind. 339, 32, 267, 274, 532 
 
 Lake, etc., Bank v. Judson, 122 N. 
 
 Y. 278,, 614 
 
 Lake. Tow n <>f,\ . Bok,33 111. App. 45, 571 
 
 Lake Erie, etc., Co. v. Acres, 108 
 
 Ind. 548, 402, 411, 790, 791 
 
 v. Faught, i- 1 ., [nd. 257, 7S 
 
 v. Fix, SS Ind. 3S1, 567, 625,692, 759 
 
 v. Griffin, 92 Ind. 487, ^2, 215, 479. 
 
 51,2, 610 
 
 Lake Shore, etc., Co. v. Cincinnati, 
 
 etc., Co., 116 Ind. 578, 38, 147, 2S4 
 
 v. Foster, 104 Ind. 293, 640 
 
 Lake Shore, etc., Co. v. Perkins, 25 
 Mich. 329, 587 
 
 v. Pinchin, 112 Ind. 592, 709 
 
 v. Stupak,i23 Ind. 210, 575,695,696, 
 
 709 
 Lamance v. Byrnes, 17 Nev. 197, 7S2 
 Laman v. Crooker, 97 Ind. 163, 700 
 Lamasco v. Brinkmeyer, 12 Ind. 349, 43 
 Lambert v. Haskill, 80 Cal. 611, S6 
 
 v. Merrill, 56 Vt. 464, 225 
 
 Lamburth v. Dalton, 9 Nev. 64, 464 
 Lamon v. McKee, 7 Mackey, 447, 65 
 Lamphier v. State, 70 Ind. 317, 529, 530 
 Lancaster, In re, Courts of, 4 Pa. 
 
 L. Jr. Rep. 315, 40 
 
 Lancaster v. Collins, 115 TJ. S. 222, 573 
 
 v. Waukegan, etc., Co., 132 111. 
 
 49 2 > 383 
 
 Landers v. Beck, 92 Ind. 49, 759, 769 
 v. Gemge, 49 Ind. 309, 294 
 
 v. State Island R. R. Co., 53 
 N. Y. 450, * 4 
 
 Landwerlen v. Wheeler, 106 Ind. 
 
 523, 251, 294, 368, 446, 565, 597, 747 
 Lane v. Boicourt, 128 Ind. 420, 589 
 
 v. Crombie, 12 Pick. 177, 556 
 
 v. Dorman, 3 Scam. (111.) 238, 159 
 v. Duchac, 73 Wis. 646, 597 
 
 v. Fox, 8 Blackf. 58, 630 
 
 v. Innes, 43 Minn. 437, 155 
 
 v. Miller, 17 Ind. 58, 202 
 
 v. Old Colony, etc., Co., 14 
 Gray, 143, 4S0 
 
 v. Pere Marquette, etc., Co., 62 
 Mich. 63, 401 
 
 v. Schlemmer, 114 Ind. 296, 108,215, 
 
 532 
 v. State, 27 Ind. 10S, 
 Lang v. Oppenheim, 96 Ind. 47, 
 v. Cox, 35 Ind. 470, 
 v. State, 67 Ind. 577, 
 Langan v. Langan, 83 Cal. 61S, 
 Langdon v. Bullock, 8 Ind. 341, 
 Lange v. Dammier, 119 Ind. 567, 
 Langley v. Warner, 1 N. Y. 606, 
 
 557 
 606 
 
 276 
 
 69 
 
 79 
 671 
 214 
 210, 
 709 
 790 
 
 Langohr v. Smith, Si Ind. 495, 
 Langsdale v. Woolen, 99 Ind. 575, 517, 
 
 „ 5 2 °> 533 
 Lang Syne Gold Mining Co. v. 
 
 Ross, 20 Nev. 127, 
 Lann v. People, 68 111. 303, 
 Lantz v. Maffett, 102 Ind. 23, 12, 
 Lapham v. Dreisvogt, 36 Mo. App. 
 
 275, 
 La Porte, City of, v. Organ, 30 N. 
 
 E. Rep. 2. 743 
 
 Larey v. Baker, S5 Ga. 6S7, 551 
 
 Larillian v. Lane, 8 Ark. 372, 666 
 
 Larman v. Huev. 13 B. Mon. 436, 535 
 
 18 
 
 529 
 672 
 
 475
 
 TABLE OF GASES. 
 
 lxxi x 
 
 \Hefi rences arc to Pages.] 
 
 La Rose v. Logansport, etc., Bank, 
 
 102 Ind. 332, 757, 760 
 
 Larsh v. Test, 48 I ml. 130, 120 
 
 Larson, In re, 96 N. Y. 381, 13 
 
 La Rue v. Russell, 26 Ind. 386, ^3's 
 
 Laselle v. Wells, 17 I ml. 33, z,^, 689 
 
 Lassiter v. Jackman, iSS Ind. 11S, 393, 
 
 394. 395. 39 6 
 v, Simpson, 7S Ga. 61, 
 
 Latta v. Griffith, 57 Ind. 329, 
 Latterett v. Cook, 1 la. 1. 
 Latimer v. Sullivan, 30 S. C. in, 
 Latona, The, 3 Wash. Tv. 332, 
 Landsdalev. Findley, Hardin, 151, 
 Laughlin v. City of Lamasco,6 Ind. 
 
 223. 
 Lavelle v. Skelly, 24 Hun. 642, 
 Laverty v. State, 109 Ind. 217, 
 
 739 
 179 
 56S 
 73^ 
 ^3 
 344 
 
 59o 
 
 9i 
 
 26, 394, 
 
 395 
 411 
 
 756 
 
 20S 
 
 v. Woodward, 16 la. 1, 
 
 Law v. Jackson, S Cow. 746, 
 
 v. Nelson, 14 Col. 409, 
 
 v. Nelson (Col.), 24 Pac.Rep. 2, 323 
 
 Lawler v. Alton, S Ir. L. 160, 338 
 
 v. Couch, So Ind. 369, 2S2 
 
 v. McPheeters, 73 Ind. 577, 65S, 689 
 
 7 Tex. 250, 672 
 
 Harrington, 75 Ind. 379, 206. 
 
 v. Whife, 
 Lawless v 
 
 2 79- 345, 7 
 
 6S 
 
 Lawrence v. Ballon. 50 Cal. 25S, 12S 
 v. Beecher, 116 Ind. 312, 73, 4SS, 
 
 603 
 v. Clark,' 14 Mees. & W. 249, 697 
 v. Commonwealth, 86 Va. 573, 239, 
 
 2 54 
 v. Farley, 73 N. Y. 187, 
 v. Grambling, 13 S. C. 120, 
 v. Howell, 52 la. 62, 
 v. Monroe, 43 Kan. 125, 408 
 
 v. United States, 2 McLean, 581, 311 
 v. Wood, 122 Ind. 452, 105, 263, t,?,^ 
 
 453 
 
 v. Wilcock, 11 A. & E. 941, 
 
 Lawrenceburgh, etc., Co. v. Hinkle, 
 
 119 Ind. 47, 562, 
 
 v. Montgomery, 7 Ind. 474, 
 
 v. Smith, 3 Ind. 253, 
 
 Lawson v. Bachman, Si N. Y. 616, 697 
 
 v. Glass, 6 Col. 1^4, 537 
 
 v. Hilgenberger, 77 Ind. 22 6S7 
 
 v. Moore. \\ Ala. 274, 70 
 
 v. Pulaski Co., 3 Ark. 1, 10^ 
 
 Lawton v. Case, 73 Ind. 60, 5158 
 
 Lay v. Lawson, 2^ Alii. (Pa.) 377, 674 
 
 Layman v. Buckner, do Ind. 402, 296 
 
 v. Grayhill. 14 Ind. 166, 1S0 
 
 v. Shultz. 60 Ind. 541, 561; 
 
 51.5 
 411 
 
 2S6 
 
 4-4 
 
 775 
 
 691 
 
 61 
 
 Le Guen v. Gouverur, 1 Johns. Cas. 
 
 -1 '/'■ 
 Le Moyne v. Harding, 1 32 11!. 78, \\ 
 Le Roy v. Clayton. 3 Sawy. 493, 12 
 
 v. Piatt, 4 Paige'. 77, ' 593.734 
 Leabo v. Goode. 67 Mo. 126, 545 
 
 Leach v. Blakely, 34 Vt. 134, 1 - 
 Leach v. Leach^ 2 T. & C. (N. Y.) 
 
 6 57, 5S7 
 
 Leaf v. Butt, 1 Carr. ,\: M. 451, 697 
 
 Learmoth v. Veeder, 1 1 Wis. 13S, 89 
 
 Leard v. Leard, 30 Ind. 171, 57, 474 
 
 Leary v. Dyson, 98 Ind. 317, 90 
 
 v. Moran, 106 Ind. 560, 554 
 
 v. New, 90 Ind. 502, 666 
 
 v. Smith, Si Ind. 90, 26S 
 
 v. Territory, 3 Wash. Ty. 13, 453 
 Leavitt v. Judge of Supr. Ct., 52 
 
 Mich. 595, 438 
 
 Ledfordv. Ledford,95 Ind.283, ^y>, 572 
 Lee Chuck v. Quan Wo Chung Co., 
 
 Si Cal. 222, 176 
 
 Lee v. Basey. 85 Ind 543, 282 
 
 v. Hassett, 39 Mo. App. 67, 545 
 
 v. Lord, 75 'Wis. 35, 
 
 v. Merrick, S Wis. 229, 
 
 v.'Stahl, 13 Col. 174, 
 
 v. State, SS Ind. 256, 
 
 v. Stowe, 57 Tex. 444, 
 
 I2 5 
 55" 
 49- 
 774 
 73 
 
 v. Tillotson, 24 Wend. 337, 127, 414 
 
 4« 
 
 70 
 
 43- 
 
 677 
 
 7iS 
 
 63 
 
 v. Watson, 1 Wall. 337, 
 Leech v. Perry, 77 Ind. 422, 
 
 v. State. 7S Ind. 570, 
 Leedom v. Lambaert, 80 Pa. St. 3S1, 
 Leeds v. Boyer, 59 Ind. 2S9, 
 
 v. Richmond, 102 Ind. 372, 
 Leedy v. Nash, 67 Ind. 311, 396, 736 
 Leese v. Sherwood, 21 Cal. 164, 76 
 
 Leever v. Hamill, 57 Ind. 423, 296 
 
 Lefevre v. Johnson, 7c; Ind. 554, 536 
 Leffel v. Obenchain, 90 Ind. 50, 207. 70S, 
 Lefferts v. State, 49 N. J. L. 26, 77^ 
 Lefler v. State. 122 Ind. 206, 
 Leftwich v. Commonwealth, 20 
 
 Gratt. 710, 
 Leftwich v. Leftwich. 4 Wall. 1S7, 
 Legate v. Marr, 8 Blackf. 404, 
 Legg v. Drake. 1 Ohio St. 286, 
 Leggett v. Harding. 10 Ind. 414, 
 
 v. Humphrevs,2i How. 66, 
 
 v. llydr. 58 N. Y. 272. 
 Lehman v. Honks. 121 I nd. 541, 67S, 6S9 
 
 v. Rothbarth, 1 1 1 111. 194, 33 
 
 Leib v. Butterick, 68 [nd. [99, ^21 
 
 Leimpo v. State 2S Tex. App. 179, 677 
 Lemke v. Dageling, 52 Wis. 498, 481 
 Lennox v. Knox, etc., Co., 62 Me. 
 
 322. 787 
 
 Lentz v. Martin. 7^ Ind. 22S, 292, 526, 
 
 7i8 
 
 253 
 
 24S 
 770 
 3i- 
 5M 
 
 67S 
 
 3" 
 
 547
 
 lxxx 
 
 TABLE OK CASES. 
 
 [References a 
 
 Leonard v. Armstrong, 73 Mich. 
 
 577- 6 i9 
 
 v. Blair, 59 Ind. 510, 669 
 
 v. Gibson, 6 111. App. 503, 327 
 
 v. Warriner, 20 Wis. 41, 755 
 
 Lerch v. Emmett, \\ End. 331, 756 
 
 I. hi v. Territory , 1 Wash.Ty. 13, 792 
 
 6S0 . 
 
 X 
 
 562 
 
 21 
 
 217 
 
 5-.1 
 16S, 50S 
 
 2 54, 255 
 
 Leslie v. State, S3 I nd. [So 
 Lesser v. Banks, 46 Ark. 482, 
 Lester v. Berkowitz, 125 111. 307, 
 
 v. Brier, 88 Ind. 296, 
 
 v. Howard, 24 Md. 233, 
 
 v. Lester, 70 Ind. 201, 
 Lestrade v. Barth, 17 Cal. 2S5 
 Lett v. Horner, 5 Blackf. 296, 
 Leverick v. State, 105 Ind. 277, 
 Leveringe v. Dayton, 4 Wash. C 
 
 C.698, _ ' 754 
 
 Levi v. Karrick, 15 la. 414. 457, 45S 
 Levy v. Chittenden. 120 Ind. 37, 520, 
 
 5-1, 5 2 4> 7*9 
 
 v. State, 6 Ind. 2S1, 36 
 
 Lewis v. Babcock, iS Johns. 443, 604 
 
 v. Bortsfield, 75 Ind. 390, 393, 397, 
 
 6« 
 v. Brackenridge, 1 Blackf. 112, 
 v. Campau, 14 Mich. 458, 
 v. Darling, 16 I low. I, 
 v. Edwards, 44 Ind. 333, 
 v. Ewing, 70 Ind. 2S2, 
 v. Godwin (Ind.). 27 N. E. Rep. 
 
 563, 
 
 v. Lewis, 30 Ind. 257, 
 
 v. Lewis, 20 Mo. App. 546, 
 
 v. New York, etc., Co., 123 Ind. 
 
 4<A 7-9. 
 
 v. Owen, 64 Ind. 446, 
 v. Prenatt, 24 Ind. 9S, 
 v. St. Louis, etc., Co., 59 Mo. 
 
 495- 
 
 v. State, iS Tex. App. 401, 
 V. Van Dusen, 25 Mich. 351, 
 v. Varnum, 12 Abb. Pr. 305, 
 Lexington, etc., Co. v. Paver, 16 
 
 Ohio. 324, 
 Leyner v. State, S Ind. 490, 255, 743 
 
 77', 
 Libbv v. Husbv, 2S Minn. 40, 675 
 
 Lichtenfels v. State. 53 Ind. 161, 243. 
 
 245. 2 4 r > 
 Lichty v. Clark. 10 Neb. 472, 
 Lick v. Diaz, 37 Cal. 437, 
 Lieb v. Lichtenstein, 121 Ind. 4S3, 
 Lienpo v. State. 28 Tex. App. 179, 
 Life, etc., Ins. Co. v. Adams, 9 Pet 
 
 573. 
 
 v. Adams, 8 Pet. 306, 
 
 Life, etc., Co. v. Wilson, 8 Pet. 291, 439 
 Ligare v. California, etc., Co.. 76 
 Cal. 610, 1 ss 
 
 630 
 
 83 
 
 4S3 
 
 29^, 605 
 
 76S 
 
 161 
 
 698 
 459 
 
 745 
 J 79 
 159 
 
 494 
 577 
 327 
 601 
 
 615 
 743. 
 
 745, 761, ~ 
 
 777 
 479 
 59 6 
 252 
 
 5*9 
 
 439 
 
 ;-. to P 
 
 Liggett v. Firestone, 102 Ind. 514. 2-1, 
 
 '374- 37s 
 
 v. 1 [inkley, [20 I nd. ; v 7- 7 s '- 
 Liliensterne v. Lewis (Tex.). 12 S. 
 
 W. Rep. 750, 6S 
 
 Lillard v. Ruckers, 9 Yerg. 64, 004 
 Lillie v. Trentman ( 1ml.), 29 X. E. 
 
 Rep. 40;. 1 ;- 
 
 Lilly v. Dunn. 96 Ind. 220, 671 
 Limerick, Petitioner. In re, 18 Me. 
 
 1 S3, 17S 
 
 Linahan v. Desmond, 150 Mass. 292, 030 
 
 Linard v. Crossland, 10 Tex. 402, 569 
 
 Linck v. Schouel, 32 111. App. 17, 570 
 
 Lincoln v. Claflin, 7 Wall. 132, 740 
 
 V. Ilapgood, 11 Mass. 3-0, 718 
 
 v. Iron Co., 103 U. S. 412, 581 
 
 v. Milstead. 38 Mo. App. 350, 4 17 
 
 Lincoln, etc., Works v. Hall, 27 
 
 Neb. 874, 94 
 
 Lindley v. Dakin, 13 Ind. 3SS, 62S 
 v. Kelley, 42 Ind. 294, 640, 644 
 Lindsey v. Henderson, 27 Miss. 
 
 " 5°i, 763 
 
 Line v. Huher. 57 Ind. 261, 297, 785 
 
 Linnes v. Benncr, 52 Ind. 195, 76 
 
 Lingenfelser v. Simon, 49 Ind. S2, 603 
 
 Linsman v. Huggins, 44 Ind. 474, 269 
 
 Lipes v. Hand. 104 Ind. 503, 20 
 
 Lipp v. Hunt, 30 Neb. 469, 494 
 
 Lipperd v. Edwards. 39 Ind. 165, 604 
 
 Lippincott v. Ledyard, S Phila. iS, 192 
 
 Usher v. Pratt, 9 la. 59, 793 
 
 List v. Jockheck (Kan.), 27 Pac. 
 
 Rep. 184. f>6 
 
 v. Kortepeter, 26 Ind. 27, 615. 079 
 
 Lister v. Baker, 6 Blackf. 439, 793 
 
 v. McNeal, 12 Ind. 302, 524 
 
 v. Stanley, 1 Mod. 112, 102 
 
 Litchfield v. Richards Register, 
 
 etc., 9 Wall. 575. 435 
 
 Litt v. Martindale, 18 C. B. 314, 10 
 Littan v. Wright School Tp., 127 
 
 Ind. Si, 73S 
 
 Littcll v. Bradford. 8 Blackf. 1S5, 315 
 
 Little v. Bowers, 134 U. S. 547, 14, 124 
 
 v. Bunce, 7 N. II. 485, 495, 496 
 
 v. Jacks. 68 Cal. 3 | {, 20S 
 
 v. State. 90 Ind. 338, 4 
 
 Little Miami, etc., Co. v. Wetmore, 
 
 19 Ohio St. 1 10, 662 
 Little Rock, etc., Co. v. Cavenesse, 
 
 4S Ark. 106, 623 
 
 v. Tankersly (Ark.), 14 S. W. 
 
 Rep. 1099, 549 
 
 Littleton v. Smith, 119 Ind. 230, 250, 
 
 291, 590, 647, 668 
 
 Littlefield v. Perry, 21 Wall. 205, 50 
 
 Littlejohn v. Greeley, 13 Abb. Pr. 41, 616 
 
 Livermore v. Campbell, 52 Cal. 76. 4^6
 
 TABLE OF CASES. 
 
 XXXI 
 
 539 
 443 
 611 
 
 [Hi ft >■• .: 
 
 Livesey v. Livesey, 30 Ind. 39S, 393, 
 
 670 
 Livigood v. Livigood, 6 Blackf. 
 
 -I'M 
 Livingston v. Dunlap, 99 N. C. 268, 50S 
 v. Mayor, 8 Wend. 85, 26 
 
 Llovd v. Hannibal, etc., Co.. ^3 
 
 Mo. 509, 
 v. Reynolds, 26 Neb. 63, 
 Lobb v. Lobb, 26 Pa. St. 327. 
 Locke v. Merchants' Nat. Bank, 66 
 
 Ind. 353, 403. 637, 63S, 70S, 71S, 719 
 Lockhart v. State, 92 Ind. 452, 255, 531, 
 
 737 
 
 Lockwood v. Dills, 74 Ind. 56, 724 
 
 v. Quackenbush, S3 N. Y. 607, 413, 
 
 5S7 
 
 v. Rose, 125 Ind. 5SS, 536, 70S, 7SS 
 
 Lodge v. Tweell, 135 I'. S. 232, 99 
 
 Loeb v. Mathis, 37 Ind. 306, 420, 421, 
 
 735 
 
 Loewe v. Reismann, S Bradw. 525, 701 
 
 Lofton v. Moore, 83 Ind. 112, 1S7, iSS 
 
 Logan v. Harris. 90 X. C. 7, 77 
 
 v. Kiser, 25 Ind. 393, 558 
 
 v. Logan, 77 Ind. 55S, 120, 570 
 
 v. Pennsylvania Co., 132 Pa. St. 
 
 403; 65, S 4 
 
 v. Vernon, etc.. Co., 90 Ind. 552, 592 
 
 Logan Branch Bank, Ex parte, 1 
 
 Ohio St. 433, 18, 430 
 
 Logansport, City of, v. Dvkeman, 
 
 116 Ind. 15, 529, 662 
 
 v. Humphrey, 106 Ind. 146. 491 
 
 v. La Rose, 99 Ind. 117. C06 
 
 v. Shirk (Ind.), 28 N. E. Rep. 
 
 53S, 55S 
 
 v. Wright. 25 Ind. 512, 74S 
 
 Logansport, etc., Co. v. Davidson, 
 
 51 Ind. 472. 757, 760 
 
 Lohman v. People. 1 N. Y. 379, 737 
 
 Lomax v. Mitchell, 93 111. 579, 709 
 
 Londoner v. People. 15 Col. 557. 57S 
 
 Long v. Emery, 49 Ind. 200, 99 
 
 v. Fox, 100 111. 43, 126 
 
 v. Hitchcock. 3 Ohio. 274, 141 
 
 v. McClure, 5 Blackf. 319, 101 
 
 v. State, 12 Ga. 293. ^34 
 
 v. State, 46 Ind. 5S2, 256, 679, 71 
 
 v. State, 95 Ind. 481, 250. 531, 579 
 
 v. Straus, 107 Ind. 94. 305 
 
 v. Town of Brookston, 79 Ind. 
 
 1 S3. 162, 766 
 
 v. Williams. 74 Ind. 115, 562, 749 
 
 v. Highan, 89 Ind. 352, 170,764, 774, 
 
 775 
 lale v. Brown, 4 Wash. C. C. 
 148, 74 
 
 Loome v. Burt. 16 S. W. Rep. 439. 7SS 
 
 re to Pa 
 
 Loomis v. Wabash, etc., Co., 17 
 
 Mo. App. 340, 
 Looney v. Bugh, Minor (Ala.), 413, 
 Lord Mohun's Case, 6 Mod. 59, 
 Lord v. Goldberg. Si Cal. 596, 
 
 v. Veazie, 8 How. 251, 124. 
 Loring, Ex parte, 94 U. S. 4»S, 
 
 v. Folger, 7 Gray, 505, 
 Losey v. Pond, 94 Ind. 67, 112, 
 
 Lott v. Swezey, 29 Barb. 87, 
 Lotz v. Briggs, 50 Ind. 346, 619, 
 Loucheine v. Strouse, 46 Wis. 487, 
 Louden v. Louden, 63 How. 411, 
 
 v. Louden, 65 How. Pr. 411, 
 Loudenback v. Lowry, 6 Ohio C. 
 
 C. 65, 
 Louders v. Beck, 92 Ind. 49, 759, 
 Louisville, etc., Co. v. Ader, no 
 Ind. 
 
 v. Balch, 105 Ind. 93, 663, 694, 
 
 v. Poland. 70 Ind. 595, 159, 349, 
 
 v. Puck, 116 Ind. 566, 
 
 v. Cauley, 119 Ind. 142, 371, 
 580, 
 
 v. Corps, 124 Ind. 427, 393, 
 
 v. Crunk, 119 Ind. 5 (.2, 
 
 v. Donnegan, in Ind. 179, 368, 
 
 v. Etzler, 119 Ind. 39, 19, 
 
 v. Falvev. 104 Ind. 409, 4S6, 
 
 v. Flannagan, 113 Ind. 4SS, 5S2, 
 
 Fox, 101 Ind. 410, 391 
 Frawlev, no Ind. iS, 
 
 401, 
 
 575- 
 696, 
 . Godman, 104 Ind. 490, 
 . Grantham, 104 Ind. 353, 692. 
 . Green, 120 Ind. 367, 70S, 709, 
 . Grubb, SS Ind. 85, 
 . Harrigon, 94 Ind. 245, 757. 
 . Harrington, 92 Ind. 4^7, 
 . Hart, 119 Ind. 273, 391. 575, 
 696, 700, 712, 716, 
 . Head, So Ind. 117, 
 . Hendricks, 12S Ind. 462, 620, 
 
 . Henly, 8S Ind. S3S, 511, 
 
 . 1 [ixon, 101 Ind. 337. 
 . Horton, 67 Ind. 546, 
 . Hubbard, 116 Ind. 193, 579, 
 676,681, 
 , Jackson, 64 Ind. 39S, 349, 
 , Jones, 10S Ind. 551, 
 Kane. 120 Ind. 140, 5S0, 694, 
 
 77P 
 Krinning, S7 Ind. 351. 
 Lockridge, 93 Ind. 191, 
 Nieii Ind. 158. 
 
 Orr, 8 ( Ind. 50, 
 
 545 
 770 
 
 - 
 
 435 
 140 
 566 
 
 497 
 
 452 
 
 116 
 270 
 
 6S1 
 769 
 
 395 
 709 
 
 35i 
 716 
 
 7°8 
 
 395 
 
 2SS 
 
 37o. 
 446 
 
 475 
 c 77- 
 702 
 696, 
 709 
 41S 
 
 581. 
 708 
 
 7-.i 
 774 
 710 
 
 572 
 
 , 7 6 ° 
 636 
 
 777 
 
 787, 
 
 605 
 394 
 350 
 
 444 
 
 785 
 
 57 1 
 
 90 
 
 630 
 
 57i
 
 lxxxii 
 
 TABLE OF CASES. 
 
 ' /i, i, >■■ /.'• es are to Pages^\ 
 
 395 
 
 Louisville, etc., Co. v. Overman. 88 
 Iiui. 1 15. 
 v. Peck. 99 Ind. 68, 393 
 v. Pedigo, 10S Ind. 4S1, 
 v. Reynolds, 118 Ind. 170, 
 v. Rush, 127 Ind. 545, 
 v. Schmidt. io6 Ind. 73, 
 v. Spain, 6] Ind. 460, 
 v. State. 2<; Ind. 177. 
 v. Stommel, 126 Ind. 35, 
 v. Thompson, 107 Ind. 442, 
 
 5 2 4 
 39 6 
 579 
 5S7 
 627 
 588 
 394 
 59 1 
 707 
 554 , 626, 
 7S6 
 753 
 79 
 
 v. Wright, 115 Ind. 37S, 
 Lounsburv v. Purdy, iS N. Y 
 
 Lucas v. Shepherd, 16 Ind. 36S, 306 
 
 v. Smith, 42 Ind. 103, 567 
 
 v. Smith, ^4 Ind. 530, 736 
 
 v. State. 86 Ind. 1S0, 162 
 
 Luck v. State. 96 Ind. 299, 531, 53S, 579 
 
 Lucketts v. Townsend, 3 Tex. 119, 666 
 
 Lucy, The, 8 Wall. 307, 
 
 Ludlam v. Broderick. 3 (jr. 269, 
 
 Ludlow v. Ludlow, 109 Ind. 199, 
 
 v. Turner, Si Kv. 4S9, 
 v. Wilson. 13S U. S. 501, 
 v. Wood, 113 Ind. 544, 1S7, 402, 414 
 537> 70S 
 v. Worley, 107 Ind. 320, 579, 692. 
 
 761 
 
 747 
 
 S l S> 4°7, 
 
 5 21 
 
 Love v. Dickerson, 85 N. C. 5, 614, 616 
 
 v. Hall, 76 Ind. 326, 2S7, 525, 647 
 
 v. Mikols. 12 Ind. 439, S3 
 
 v. Tinsley, 32 W. Va. 25, 4S1 
 
 Loveland v. Gardner, 79 Cal. 317, 481 
 
 Lovell v. Martin, 12 Abb. Pr. 17S, 733 
 
 v. State, 45 Ind. 550, 679 
 
 Lovinger v. First Nat. Bank, Si 
 
 Ind. 354, 5 68 > 6l ° 
 
 Low v. Adams. 6 Cal. 277, 334 
 
 v. Crown Point Mining Co., 2 
 
 Nev. 75, 68> 74 
 
 Lowe v. Ryan, 94 Ind. 450, 54S, 549 
 
 v. State, 46 Ind. 305, 40S 
 
 Lowen v. Crossman, 8 la. 325, 666 
 
 v. Knox, 10 Cal. 4S0, 109 
 
 Lowden v. Lowden.^S Ind. 53S, 370, 698 
 
 Lower Chatham, In re. 35 N. J. L. 
 
 497. 26 
 
 Lower v. Franks, 115 Ind. 334, 603, 661, 
 
 747 
 Lowerv v. Carver, 104 Ind. 447, 771 
 
 v. "Howard, 103 Ind. 440, 88 
 
 Lowman v. Sheets, 124 Ind. 416, 694 
 Lowndes v. Miller. 25 S. C. n<), 66 
 
 Lownsburv v. Rakestraw, 14 Kan. 
 
 151, 201 
 
 Lowrie v.France, 7 Neb. 191, 7^6 
 
 v. Salz, 75 Cal. 7S2 
 
 Lowrv v. Dutton. 2S Ind. 473, 567 
 
 V. Francis. 2 Yerg. 534, 305 
 
 v. McAlister, S6 Ind. 543, 566 
 
 Loy v. Loy. 90 Ind. 404. 757, 760 
 
 Luark v. Malone, 34 Ind. 444, 601, 603 
 
 Lucas v. Beale. 10 C. B. 739, 602 
 
 v. Board. 44 Ind. 524, 492 
 
 v. Brooks, iS Wall. 436, 369, 509, 
 
 691 
 v. Hawkins. 102 Ind. 64. 8S 
 
 104 
 267 
 393- 
 395 
 728 
 
 624 
 74§ 
 
 294 
 
 v. Walker, 67 Ind. 353, 
 Lufkins v. Collins (Idaho), 10 Pac 
 
 Rep. 300, 
 Luirance v. Luirance, 32 Ind. 19S, 
 Lundberg v. Single Men's Endow 
 ment Association, 41 Minn. 505, 
 Luntz v. Greve, 102 Ind. 173, 52,400, 56 
 Lures v. Botte, 2(> Ind. 343, 777 
 
 Lurton v. Carson. 2 Blackf. 464, 773 
 Luthe v. Luthe, 12 Col. 429, 472. 17- 
 Lutz v. Crawfordsville, 109 Ind. 466, 218 
 Lybecker v. Murray, 58 Cal. 1S6, 513 
 Lycoming, etc., Co. v. Rubin, 79 
 
 "111- 402, 657 
 
 Lyman v. Redman, 23 Me. 2S9, 577 
 
 Lynam v. Buckner, 60 Ind. 402, 614 
 
 Lynch v. Dunn, 34 Cal. 518, 44S 
 
 v. Jennings, 43 Ind. 276,288,748, 766 
 
 v. Leurs, 30 Ind. 411, 554 
 
 v. State. 9 Ind. 541, 534 
 
 Lyon v. Blossom, 4 Duer. (N. Y.) 
 
 "31S, s 9 
 
 v. Davis, in Ind. 3S4, 772, 774,775 
 
 v. Merritt, 6 Paige, 473, 493 
 
 v. Travelers Ins. Co , 55 Mich. 
 
 141, 126 
 
 Lyons v. Bain, 1 Wash. Ty. 4S2, 126, 350 
 
 v. People, 6S 111. 271," 674 
 
 v. Planters, etc., Bank, S6 Ga. 
 
 485. 
 
 v. Teal, 28 La. Ann. 592, 
 
 v. Terre Haute, etc., Co., 101 
 Ind. 419, 
 Lvons, Town of, v. Cooledge, S9 
 
 '111. 529. 
 Lytle v. Lytic, 37 Ind. 2S1, 
 v. Lytle, 94 X. C. 522, 
 
 M 
 
 McAfee v. Revnolds (Ind.), 2S N. 
 
 E. Rep. 425.' 192,475.476,481 
 
 McAllister v. Detroit, etc., Co., 85 
 
 Mich. 453, 6 5 & 
 
 v. McAllister, 12 Ired. L. 184, 657 
 
 v. State. Si Ind. 256, 100, 101, 120 
 
 v. Willey, 60 Ind. 195, 29S 
 
 McAlpine v. Sweetser, 76 Ind. 7S. 147, 
 
 2S4, 504 
 v. Ziller, 17 Tex. 508, 656 
 
 5Si 
 549 
 
 640 
 
 672 
 170 
 496
 
 TABLE OF CASKS. 
 
 A', ft r, tit i s are to J ' 
 
 604 
 632 
 
 15S 
 50S 
 
 5i3 
 
 7SS 
 
 53 2 
 
 573 
 
 McArthur v. Lane, 15 Me. 245, 
 
 v. Lefler, 1 10 End. 526, 
 
 v. Schultz, 7S la. 3A4, 13, 
 
 McBride v. Lathrop, 24 Neb. 93, 
 
 v. Northern, etc., Co., 19 Ore. 
 64. 
 
 v. Settles (Tex.), 16 S. W. Rep. 
 4--, 
 
 v. Stradley, 103 Ind. 465, 
 
 v. Thompson, 8 Ala. 650, 
 McCaffrey v. Corrigan, 49 Ind. 175. 488, 
 
 595 
 
 McCall v. Hitchcock, 7 Bush. 615, 70 
 
 v. Trevor, 4 Blackf. 496, 315 
 
 McCallister v. Mount, 73 Ind. 559, 267. 
 
 395- 6S 9 
 McCalop v. Fluker, 12 La. Ann. 
 
 55 *• 4 S 3 
 
 McCamack v. Earhart, 72 Ind. 24, 159 
 McCammack v. Clark, 16 Ind. 320, 601 
 
 7S4< 
 - 79 2 
 McCammon 
 
 Ind. 545, 
 McCandless Tp. Road, In re, no 
 
 Pa. St. 605, 
 McCann v. Cooler, 30 Neb. 552, 
 McCardle, Ex parte, 7 Wall. 506, 
 
 McCammack, S6 Ind. 3S7, 
 
 Cunningham, 10S 
 
 691 
 
 769 
 61, 
 
 McCardle v. McGinley, 86 Ind. 53S, 1 ^9. 
 
 170 
 McCart v. Squire, 150 Mass. 4S4, 747 
 McCarthy v. Garroghty, 10 Ohio 
 
 St. 43 s ." 635 
 
 v. Kitchen, 59 Ind. 500, 579 
 
 McCarty v. Chicago, etc., Co., 34 
 
 111. A pp. 273. 678 
 
 v. Hamaker, S2 Va. 471, 7S 
 
 v. State, 1 Blackf. 240, 30S 
 
 McCaskey v. Graff, 23 Pa. St. 321, 666 
 
 McCauley v. Murdock,97 Ind. 229, 791 
 
 McCaw v. Blewitt, 1 Bailey (S. C.) 
 
 Ch. 9S, 
 McClain v. Sullivan, S5 Ind. 174, 
 
 4S3 
 295, 
 296 
 
 McClary v. State, 75 Ind. 260, 255, 579 
 
 620 
 
 McClean v. Hertzog, 6 S.& R. 154, 697 
 
 McClellan v. Bond, 92 Ind. 424, 687, 6SS 
 
 v. Binkley, 7S Ind. 503, 1S0 
 
 McClelland v. Allison, 34 Kan. 155, 324 
 
 v. Louisville, etc., Co., 94 Ind. 
 
 276, 562 
 
 McClintock v. Theiss, 74 Ind. 200, 100, 
 
 293, 719 
 McCloskev v. Indianapolis, etc., 
 Co., 67 Ind. S6, 405 
 
 v. Indianapolis, etc., Co., S7 
 Ind. 20, 20S, 318, 321 
 
 McClure v. McClure, 19 Ind. (85, 393 
 
 539 
 
 479 
 614 
 
 39 1 
 
 489 
 669 
 
 McClure v. State. 77 Ind. 2S7, 531 
 v. State, 116 Ind. 169, 
 
 v. State, 1 Yerg. 206, 528 
 
 v. Taylor, 3S Ind. 427, 44S 
 
 v. White, 9 Ind. 208, 43 
 
 McCole v. Loehr, 79 Ind. 430, 354. 
 
 v. State, 10 Ind. 50, \~ 
 
 McCollum v. Eager, 2 How. 61, 73 
 
 v. Uhl, 12S Ind. 304, 603 
 
 McComas v. Haas, 93 Ind. 276, 507, 
 
 5 6 3> 5 6 5- 
 v. Haas, 107 Ind. 512, 702 
 
 McComb v. Spangler, 71 Cal. 41S, 4S9 
 McCombs v. Guild, 9 Lea. Si, 
 McConnell v. Harrington, 10S Ind. 
 405, 
 
 v. Kitchens, 20 So. Car. 430, 
 v. Osage, So la. 293, 
 v. Wall, 67 Tex. 352, 
 McCool v. State, 7 Ind. 37S, 
 McCorkle v. State, 14 Ind. 379, 24S. 254 
 McCormack v. Phillips (Dak.), 34 
 
 N. W. Rep. 39, 260 
 
 McCormick v. Central R. R. Co., 
 
 75 Cal. 506, 791 
 
 McCormick, etc., Co. v. Gray, 100 
 Ind. 285, 614, 615, 616 
 
 v. Gray, 114 Ind. 340, 395, 702, 
 
 772, 790 
 McCormick v. Hickey, 24 Mo. App. 
 362, 
 
 v. Hubbell, 4 Mont. 87, 
 v. Hyatt, 2^ Ind. 546, 
 v. Laughran, 16 Neb. S7, 
 v. Maas, 121 Ind. 132, 
 v. Smith, 127 Ind. 230, 
 v. Spencer, 53 Ind. 550, 294, 
 v. St. Louis, etc., Co., 26 Mo. 
 App. 65, 
 
 v. \\ ebster, S9 Ind. 105, 
 McCourtnev v. Fortune, 42 Cal.3S7, 91 
 McCoy v. Able (Ind.), 30 N. E. 
 
 Rep. , 773 
 
 v. McCoy, ^ W.Va. 60, 46, 7S, 491 
 v. State. 121 Ind. 160, 196, 75S 
 
 v. Trucks, 121 Ind. 2^2. 165 
 
 v. Walls. 30 N. E. Rep. , 754 
 
 McCracken v. Cabell, 120 Ind. 266. 
 
 126, 350 
 v. Superior Court, S6 Cal. 74, 319 
 McCranev v. Childs, n la. 54, 2S4 
 
 McCray v. Humes, 116 Ind. 103, 669 
 McCreary v. Cockrill, 3 Kan. 37, 7 ; 
 McCreery v. Everding, 44 Cal. 284, 140 
 McCrorv v. Anderson, 103 Ind. 12, 320. 
 
 322, 662 
 
 McCulloch v. Dodge. S Kan. 476, 68, 71 
 
 v. Hollingsworth, 27 Ind. 115, 599 
 
 McCullum v. Eager. 2 How. 61, 64 
 
 McCurdy v. Love, 97 Ind. 62, 219, 225 
 
 581 
 
 3 l 7 
 397 
 
 73i 
 753 
 662 
 
 : 9 
 
 :S +
 
 I :xxiv 
 
 TABLE OF CASES 
 
 A\ ferences a 
 
 Curdy v. Middlet >n, 90 Ala. 9 1 
 
 • niel \ . Lee, 37 Mi ». 20 |. 590 
 
 v. Mattingly, 72 [nd. 349, 768 
 
 v. Stokes, i') S. C 1 745 
 
 McDermitt v. Hubank, 25 Ind. 232, ;oo, 
 
 5&8 
 Ml i.rmott v. Iowa, etc., Co. ( la.). 
 
 47 N. W. Rep. [037, 792 
 
 McDonald v. Carson. 95 N. C. 377, 097 
 v. Early, 24 Neb. Sib, 792 
 
 \ 1 Ilfes, 6i Ind. 279, 774 
 
 \ Geisendorff, 128 Ind. 153, 7<><> 
 v. Stader, 10 Ind. 17:. 187, 300 
 
 v. Union, etc.. Co.. 42 Fed. Rep. 
 
 5 S2 
 
 McDonel v. State, 90 Ind. 320, 577 
 
 •ongal v. Fleming 4 Ohio, 3SS. 765 
 
 McDonoughv. Nichoi ;on, 46 Mo. 35, 70 
 
 Mi how ell v. Crawford, 11 Gratt. 
 
 377' 535 
 
 Mi Duffee v. Bentl \, 27 Neb. 380, 736 
 McElfatrick v. Coffroth, 29 Ind. 37, 758 
 McElfresh v. Guard, 32 Ind. 408, 64S 
 McElhoes v. Dale, Si Ind. 67, 790 
 
 McEndree v. McEndree, 12 Ind. 97, 106, 
 
 349 
 McEneney v. Sullivan, 125 Ind. 407. 286 
 
 39 8 ' 
 
 4H> 55° 
 
 77o 
 
 6-?6 
 
 McFadden v. Fritz, no Ind. 1, 
 
 v. Wilson, 96 Ind. 253, 
 
 din v. David. 78 Ind. 445, 
 
 McFall v. Commonwealth, 2 Metcf. 
 
 (Ky.) 394, 27 
 
 v. Howe Co., 90 Ind. 14S, 566 
 
 M Farland v. Hall, 17 Tex. 076. 75 
 
 \ . McFarland, 40 Ind. 458, 277 
 
 Mi Feters v. Pierson, 15 Col. 201, 746 
 
 M Garrahan v. New Idra Co., 49 
 
 Cal. 331, 456 
 
 McGarvey v.Ford (N. M.),27 Pac. 
 
 115. 682 
 
 Mi Ge< v. Robbins, 58 Ind. 463, 60S 
 v. Stal^. 103 Ind. 444, 554, ^>2 
 
 McGill v. Wallace, 22 Mo. 675.' 41 | 
 McGillis v. Bishop, 27 111. App. 53, 487 
 McGinnis v. Gabe, 78 Ind. 457, 511, 734 
 \ . Mayor, etc., 6 Daly. 416, 521 
 
 McGlaughlin v. O'Rourke, 12 la. 
 
 459i 15 6 > 45 s 
 
 lennan v. Mayowski, 90 Ind. 
 [50, 8S, 290 
 
 roldrick v. Slevin, 43 Ind. ^22, 393 
 McGowan v. State, 9 Yerg. 184, 578 
 v. Wilmington, etc., Co., 95 N. 
 C.417, V>S, 50S 
 
 rowen v. Campbell, 28 Kan. 215, 534 
 McGown v. Remington, 12 Pa. St. 
 
 56, 32 
 
 M draw v. Franklin, 2 Wash. 17. 544, 
 
 549 
 
 ft tv Pages .] 
 
 McGregor v. Hobbs, 125 Ind. 487, 393 
 \. Pearson, =;i Wis. 122. 112 
 
 McGrew v. McCarty, 78 1 nd. 496, 88, 558 
 McGrime v. State, ^> Ind. 140, 790 
 
 McGuffey v. McClain (Ind.), 30 N. 
 
 IC. Rep. 296, 739 
 
 Mel high v. Chicago, etc., Co., 41 
 
 Wis. 75, 483 
 
 Mcllhaney v. Holland, in Pa. St. 
 
 634. 93.3 2 5 
 
 Mcllvain v. Emery. SS Ind. 298, 766 
 
 v. State, 80 Ind. 69, 610, 692. 698 
 
 Mcllwaine v. Adams, 46 Ind. 580, 113, 
 
 269 
 M'Intire v. Young, 6 Blackf. 496. 792 
 Mcintosh v. Mcintosh, 79 Mich. 
 
 [98, 61S 
 
 Mi I nt vie v. Mclntyre, 24 Mo. App. 
 
 [66, 4S9 
 
 Mcjilton v. Dove, 13 111. 486, 495 
 
 McKim v.Thompson, 1 Bland. Ch. 
 
 150, 82 
 
 McKee v. McDonald, 17 Ind. 518, 793 
 
 McKeen v. Board, 60 Ind. 280, 118,756 
 
 McKenzie v. Ballard, 14 Col. 426, 160 
 
 v. Peck (Wis.), h 2 X. W. Rep. 
 
 -47- ' 475 
 
 V. Rhodes. 13 Abb. Pr. 337. 116 
 
 V. State, 26 Ark. 334, 620 
 
 McKesson v. Sherman, 51 Wis. 303, 567 
 
 McKernan v. XeiV, 43 Ind. 503, 596 
 
 McKinley v. First Nat. Bank, 118 
 
 Ind. 375. 78S 
 
 v. Shank, 24 Ind. 25S, 507 
 
 McKinney v. Jones, 55 Wis. 39, 535 
 
 V. McKinney, 8 Ohio St. 423. 035 
 
 v. Monongahela Co., 2 Harris 
 
 (Pa.), 65, ' 26 
 
 V. Shaw, etc., Co., 51 Ind. 219, 761 
 
 v. Springer, 6 Ind. 453, 301, 648 
 
 v. State, 101 Ind. 355, 671 
 
 V. State, 117 Ind. 26, 489 
 
 McKinsey v. McKee, 109 Ind. 209, 50S 
 
 McKnight v. Devlin, 52 X. Y. 399, 401 
 
 v. Dnnlap, 4 Barb. 30, 587 
 
 McLaughlin v. Ward, 77 Ind. 383, 713 
 
 McKnight v. Knisely, 25 Ind. 336, S2 
 
 McFain v. State, iS Neb. 154, ' 617 
 
 McLana v. Rusell, 29 Tex. 127, ^27, 
 
 McLanahan v. Universal Ins. Co., 
 
 1 Pet. 169, 750 
 
 McLane v. Bonn, 70 la. 752, 61 
 
 McLaren v. Kehlor, 22 Wis. 297, 519 
 
 McLaughlin v. Child, 62 Ind. 412, '268 
 
 v. Doliei ty, 54 Cal. 519, 96 
 
 \ . l'.ti bison, 127 Ind. 474, 504 
 
 v. Janney, 6 Gratt. 609, 456 
 
 v. State, 66 Ind. 193, 91, 241, 243, 
 
 246
 
 TABLE OF CA 
 
 lx: 
 
 ffi ferenck s arc /<> Pages, f 
 
 570 
 624 
 601 
 4S9 
 
 449 
 636 
 
 5 2 5 
 
 3i7 
 
 McLead v. .Etna Ins. Co., 107 Ind. 
 
 394, 108 
 
 McLean v. Burbank, 12 Minn. 530. 624 
 v. Equitable, etc., Co., 100 Ind. 
 
 127, 644 
 
 McLean Co. v. Deposit Bank, Si 
 
 Ky. 254, 5 
 
 McLees v. Felt, 11 Ind. 21S, 614, 615 
 McLellen v. Crofton, 6 Me. 307, 528 
 McLennen v. Prentice, 79 Wis. 4S8, 490, 
 
 7SS 
 McLimans v. City of Lancaster, 57 
 
 Wis. 297. * 517 
 
 McMahan v. Newcomer, S2 Ind. 565, 52 
 v. Works, 72 Ind. 19, 217 
 
 McMahon v. Sankey, 35 111. App. 
 
 34 1 - 
 
 v. Sankey, 133 111. 636, 
 McMekin v. Richards, Si Ga. 192, 
 McMillan v. Baker, 92 X. C. no, 
 
 v. Nye, 90 N. C. 11, 
 McMillen v. Terrell, 2^ Ind. 163, 
 McMannus v. Smith, ^ Ind. 211, 
 McMinn v. Patton, 92 N. C. 371, 
 
 v. Whelan, 27 Cal. 300, 572, 61S 
 Mr Mullen v. Clark, 49 Ind. 77, 27S 
 
 McNamara v. Estes, 22 la. 246, 30, 653 
 McNay v. Stratton, 109 111. 30, 61 
 
 McNeal v. Oats Co., 51 Vt. 316, 16S 
 McNeely v. Holliday, 105 Ind. 324, 268 
 McNeil v. Home Ins. Co., 30 Mo. 
 
 App. 306, 762 
 
 McNultyv.Batty, 10 How. (U.S.) 71, 21 
 McNutt v. Dare, S Blackf. 35, 704 
 
 v. McNutt, 116 Ind. 545, 391 
 
 McQuarrie v. Hildebrand, 23 Ind. 
 
 122. 
 McQueen v. State, S2 Ind. 72, 
 
 v. Steward, 7 Ind. 1535, 
 McQiiery v. Gilleland (Ky.), 12 S. 
 
 !Q37' 
 McQuigg v. Dailey, 16 Ind. 324, 
 Mc Sweeney v. Mc Miller, 96 Ind. 
 
 298, 
 McVey v. Heavenridge,30 Ind. 100, 207, 
 
 3*3' 3 J 9 
 McVickarv. Wolcott, 4 Johns. 510, 455 
 McWhinney v. Briggs, 85 Ind. 535 
 McWhorterv.Heltzell, 124 Ind. 129. 215 
 McWilliams v. Walthall. 77 Ga. 7. 492 
 Mabey v. Atkins, 10 Wall. 419, 
 Mabvv. Baxter, 11 Heisk. 682, 
 Mabry v. Ross, 1 llcisk. -i>g. 
 Machall v. Richards, 116 U. S. 45 
 Mack v. Grover, 12 Ind. 254, ^96, 603 
 
 v. Parks, 8 Gray, 517. 540 
 
 Maekey v. Baltimore, etc., Co., iS 
 Wash. Law Rep. 767, (1^9 
 
 v. Commonwealth. 80 Kv. 345, 124 
 Mackison v.Clegg,S3 Ind. . 55, 334, 335 
 
 59° 
 251 
 792 
 
 420 
 540 
 
 53 6 
 
 4S3 
 9 
 
 513 
 450 
 
 Macklin v. Allenberg, 100 Mo. 337, | 
 v. New England, etc., Co., 33 
 
 La. Ann. 
 Mackison v. Clegg, 95 Ind. 373, GS2 
 
 Mi Lachlan v. McLaughlin, 126 
 
 Hl.427, 92 
 
 Macnevin v. Macnevin, 63 Cal. 1S6, 
 Macullar v. Wall, 6 Gray, ^07, 535 
 
 Madden v. State. 1 Kan. 340, 
 Maddox v. Pulliam, 5 Blackf. 20^, 287 
 Madison, etc., Co. v. Trustees. 8 
 
 End. 528, 7-2 
 
 v. Whiteneck, S Ind. 217, 525 
 
 Madgett v. Fleenor, 90 Ind. 517, 
 Maghee v. Collins. 27 Ind. 83, 496 
 
 Mahlman v. Williams (Ky.), 12 S. 
 
 W. Rep. 335. 315 
 
 Mahncke v. Tacoma, 1 Wash. 18, 86 
 Malum v. Mahon, 19 Ind. 324, 37S. 032 
 Mahone v. Manchester, 1 1 1 Mass. 72, 72 
 Mahoney v. Keane, 28 N. E. Rep. 
 
 9Lv 349 
 
 v. Robbins, 49 Ind. 146, 294. 5 n 
 Mahony v. Mahonv, 41 La. Ann. 
 
 135. " 47^ 
 
 Main v. Ginthert, 92 Ind. 1S0, Si 
 Mainigault v. Holmes, 1 Bailey (S. 
 
 C.) Eq. 27S, 4 SS 
 
 Mairs v. Gallahue, 9 Gratt. 94, 663 
 
 Makepeace v. Davis, 27 Ind. 3^2, 62S 
 
 v. Lukens, 27 Ind. 435, 178 
 
 Malady v. McEnary, 30 Ind. 273, 1 S9 
 Malin v. Kinney, 1 Cain. Rep. 117. 
 
 Malone v. Hopkins, 49 Ga. 221. 
 
 v. McClain. 3 Ind. 532, 308, 
 Mallory v. Lamphear, S How. Pr. 
 
 49 1 ' 
 Malott 
 
 339 
 
 > 
 
 186 
 
 572 
 
 Go). 
 601 
 5-9 
 
 State, 26 Ind. 93, 
 Manchester v. Dodge, 57 Ind. 5S4, 
 Mand v. Trail, 92 Ind. 521, 
 Mandeville v. Riggs, 2 Pet. 4S2, 
 Mandlove y. Lewis, 9 Ind. 194, 
 Maner v. .State. S Tex. App. 361. 
 Mangels v. Mangels, S Mo. App 
 
 603, 160 
 
 Manhattan Life Ins. Co. v. Doll, 
 
 So Ind. 1 13, 766 
 
 Manifoldv.Jor.es, 117 Ind. 212, 411 
 Manly v. Hubbard. 9 Ind. 230, 62S 
 
 Mann v. .Et.ia Ins. Co.. 3S Wis. 
 114, 31S 
 
 v. Glover. 14 N. ]. L. 195, 736 
 
 v. Haley, \; Cal. 63, 9 S 
 
 v. I.cw is. 1 ^ W. Va. 215, 557 
 
 v. Marsh, 35 Barb. 68, 604 
 
 v. Maxwell. 83 Me. 146, 653 
 
 v. Scott. 32 Ark. 1593, 
 V. Thayer, I 3 Wis. \J>). I 12 
 
 Manning v. Gasharie, ■■- Ind. 390. 
 
 -9
 
 XXVI 
 
 TABLE OF CASES. 
 
 Rt ferem < s an to P 
 
 \ Gould, 90 N. Y. 1.76, 319 
 Mannix \ . State, 1 15 Ind. 246, 680 
 
 Mannsfield v. Allen, 85 Mo. 502, 487 
 Munn\ v. Glendinning, 15 Wis. 50,611 
 Mansfield v. Shipp, 128 End. 55, 295, 
 " 554- 75' 
 Mansell v. Queen, 8 Ell. & B. 54, r.79 
 Mansur v. Churchman, 84 Ind. 573. 177. 
 
 749 
 
 v. Streight, 103 Ind. 35S, 394, 567 
 
 Maple v. Beach, 43 Ind. 51, 604 
 
 Maples v. Markov. 15 Hun. 533. 2S6 
 
 Marhury v. Madison. 1 Cranch. 
 
 1 57, 14. 16, 160 
 
 March v. State. 44 Tex. 64, 619 
 
 Marcum v. Commonwealth (Kv.), 
 
 I S. W. Rep. 727 792 
 
 Marcus v. State, 26 Ind. 101, 231, 
 
 292. 718 
 Marie v. Garrison, 83 N. V. 14. 736 
 
 Marine Ins. Co. v. Hodgson, 6 
 
 Cranch. 206, 515, 520 
 
 Mark v. Murphy, 76 Ind. 534, 599 
 
 Markel v. Evans, 47 Ind. 326, 670 
 
 Markland v. Alhes, Si Ala. 433, 75S 
 
 Marks v. Jacobs, 76 Ind. 2 16, 690, 767 
 
 \ . State, 101 Ind. 353, 791, 793 
 
 v. Trustees, etc., 56 Ind. 2S8, 297, 7S5 
 
 Markson v. Haney, 47 Ind. 31, 298 
 
 Marley v. Hornaday, 69 Ind. 106, 775 
 
 v. Noblett, 42 Ind. 85, 782 
 
 Marquadt v. Sieherling, 121 Ind. 
 
 •;":• 747 
 
 Marquess v. La Baw, 82 Ind. 550, 296 
 
 Marsh v. Nichols. unU. S. 598, 119, 13 2 
 
 v. Richardson, 106 N. C. 539. 690 
 
 v. Terrell, 63 Ind. 363, ' 7S2, 7S9 
 
 v. Wade. 3 Wash. Tv. 477. 012, 639 
 
 Marshall v. Beeber, 53 Ind. 83,297. 785 
 
 v. Davies, 7S X. Y. 414, 700 
 
 v. Gill, 77 Ind. 402, 215, 590 
 
 v. Lewark, 117 Ind. 377, 67S, 777 
 
 v. Mathers, 103 [nd. 458, 792 
 
 v. Minter, 43 Miss. 666, 310 
 
 v. State. 1 End. 72. 591 
 
 v. State, 2 Ind. 72, 438 
 
 v. State, 101 Ind. 173, 771 
 
 v. State, 123 Ind. 128, 255, 256, 257. 
 
 690, 758 
 
 Marston, In re, 79 Me. 25, 225 
 
 Martin v. Bank, 20 Ark. 636, 180 
 
 v. Cauble, 72 Ind. 67, 562, 715, 748 
 
 Martin v. Hunter, 1 Wheat. 304. 
 
 217. 479. 
 v. Knouse, 2 Abb. Pr. 390, 
 v. Martin, <■ Blackf. 
 v. Martin, 74 Ind. 207. 187, [93, 
 370. 
 v. Martin. 1 18 Ind. 227. 
 v. Martin, 14 Ore. 105, 
 v. Matfield. 49 Cal. 42, 
 V. Martin, 7 | Ind. 207, 
 
 v: Noble, 29 Ind. 216. 
 v. Nugent ( Mo.). 15 S. W. Rep. 
 422, 
 
 v. Orr, 96 Ind. 491. 122, 154, 
 v. People, 54 111. 225, 
 v. Reed, 9 Ind. 1S0, 
 v. Smith, 57 Ind. <>2. 
 v. State, 57 Ind. 62, 
 v. St. Louis, etc.. Co., 53 Ark. 
 2qo. 176, 177. 178, 
 
 ' v. Windsor Hotel Co., 70 N. Y. 
 101, 
 v. Woodruff, 2 Ind. 237, 
 Martin, etc.. Co. v. Wainscott, 66 
 
 Tex. 131, 
 Martindale v. Brown, iS Ind. 284, 
 
 v. Price, 14 Ind. 115, 
 Martineau v. Steele, 14 Wis. (2d 
 
 ed.) 295, 
 Martinsville, Town of, v. Shirley, 
 84 Intl. 546, 520, 521, 
 
 Marton The D. R., 91 U. S. 365, 
 Marvin v. Tax lor. 27 Ind. 73, 
 Marx v. Crosian, 17 Ore. 393, 
 Ma-vie v. Brady, 41 La. Ann. 553, 
 Mason v. Burke, 120 Ind. 404, 
 v. Gibson, 13 111. App. 463, 
 v. Mason, 102 Ind. 38, 271, 506, 
 v. Palmerton, 2 Ind. 117, 
 v. Smith. 1 1 Lea. 67, 
 v. United States. 136 U. S. 5S1, 
 Mason, etc.. District v. Griffin, 134 
 
 111. 330, 
 Masonic Temple Co. v. Common- 
 wealth, 87 Ky. 349, 
 Mateer v. Brown, 1 Cal. 221. 
 Masters v. Beckett, 83 Ind. 595, 
 v. Templeton, 92 Ind. 447, 4SS, 
 
 703 
 78 
 
 v. Elden, 32 Ohio St. 282, 
 v. Fielder, Nj Va. 455, 
 v. Fox, |(> Mo. App. 664, 
 \ . ( ran er, |.o Ind. 351, 
 v. Hall. 26 Mo. 385, 
 v. I Iarrison. 50 I nd. 2711. 
 v. Hazard Powder Co., 93 U. 
 S. 302, 3 i( 
 
 Masterson v. Herndon, 10 Wall. 
 416, 116. 
 
 v. Little, 7s Tex. 682, 
 v. Williams (Tex), n So. W. 
 Rep. 531, 
 265 Mather v. Chapman, 6 Conn. 54, 
 791, 792 Matheson v. (J rant. 2 How. 263, 
 
 ^32 Matthews v. Droud, 114 Ind. 26S, 
 162, 7 
 
 v. Morrison, 13 R. I. 309, 
 v. Ritenour, 31 Ind. 31, 
 
 49S 
 
 3°4 
 294, 
 
 '' s 7 
 626 
 So 
 785 
 '59 
 596 
 
 44^' 
 36l 
 620 
 101 
 
 374 
 368 
 
 775 
 
 5*5 
 
 496 
 
 266 
 
 64 
 
 4°3 
 
 558 
 
 570 
 78 
 
 59S 
 640 
 
 I2 7 
 491 
 
 9 1 
 562 
 301 
 312 
 116 
 
 630 
 
 126 
 470 
 399 
 
 595. 
 59 6 
 
 139 
 
 60 1 
 
 74 
 61 
 
 515 
 558, 
 
 6S2 
 308 
 
 597
 
 TABLE OF CAST'S. 
 
 lxxxvii 
 
 [.Reft rences 
 
 Matthews v. Story, 54 Ind. .417, 572 
 
 Mathewsoil v. Stewart. 2 How. 263, 5S2 
 
 Mathie v. Mcintosh, 40 Wis. 120, 13 
 
 Mathis v. State, [8 Ga. 343, 6S0 
 
 v. State. 94 I ml. 562, 672 
 
 Matlock v. Bank of Tennessee, 7 
 
 Yerg. 90, 312 
 
 v. Todd, 25 Ind. 128, 215, 619 
 
 Matson v. Swanson, 131 111. 255, 636 
 
 Matter of Application of Senate, 10 
 
 Minn. 78, 9 Col. 623, 4. 
 
 Mattinger v. Lake Shore, etc., Co., 
 
 117 Ind. 136, 196 
 
 Mattingly v. Paul, 88 Ind. 95, 525, 526 
 Mattson v. Borgeson, 24 111. App. 79, 680 
 Maxam v. Wood, 4 Blackf. 297, 66^ 
 
 Maxfield v. Freeman, 39 Mich. 64, 83 
 Maxwell v. Bovne, 36 Ind. 120, 624. 626, 
 
 6S6 
 
 v. Campbell, 8 Ohio St. 265, 638 
 
 v. Day, 45 Ind. 509, 524 
 
 v. Hannibal, etc., Co., 85 Mo. 95, 731 
 
 v. State, S9 Ala. 150, 612 
 
 v. Stewart, 21 Wall. 71, 266 
 
 May v. Reed, 125 Ind. 199, 216, 416 
 
 v. State, 14 Ohio, 461, 508 
 
 v. State Bank, 9 Ind. 233, 567 
 
 Mayer v. State, 4S Ind. 122, 40S 
 
 Mayes v. Goldsmith, 58 Ind. 94, 673 
 
 May field v. State, no Ind. 591, 53^ 
 
 Mayhew v. Dunham, 13S Mass. 5S4, 190 
 
 Mavnard v. Black, 41 Ind. 310, ^41 
 
 Mayne v. Board, 123 Ind. 132, 61 
 
 Mayo v. Purcell, 3 Munf. (Va.) 243, 493 
 
 Mayor, etc., v. Shaw, 14 Ga. 162, 334 
 
 Mays v. Foster, 26 Kan. 518, 724 
 
 v. Fritton, 20 Wall. 414, 731 
 
 v. Hedges, 79 Ind. 2S8, 613 
 
 v. Hoover, 112 Ind. 455, 531 
 
 v. King, 2S Ala. 690, 324 
 
 Marvsville v. Buchanan, 3 Cal. 212, 341 
 
 Maysville, etc., Co. v. Punnett, 15 
 
 B. Monr. 47. 73 
 
 Mazeheitz v. Pimentel, S3 Cal. 4:50, 790 
 Meade v. Bartlett, 77 Tex. 366. ' 314 
 Meagher v. Morgan, 3 Kan. 372, 736 
 Meaux v. Meaux, Si Ky. 475, 789 
 
 Mechanics, etc., Co. v. Nichols, 16 
 
 N.J. L. 410, 792 
 
 Mechanics, etc.. Bank v. Smith, 19 
 
 Johns. 115, 737 
 
 Mechelke v. Bremer, 59 Wis. 57, 699 
 Midealf v. Commonwealth, 84 Ky. 
 
 4 8 5> 2 44 
 
 Medith v. Crawford, 34 Ind. 399, 6S9 
 Medler v. Dunn, 26 Ind. 171, 579 
 
 v. State, 26 Ind. 171, 579, 769 
 
 Medsker v. Pogue, 1 Iml. App. 197. 510 
 "leek v. Spracher (Va.), 12 S. E. 
 Rep. 397, 653 
 
 are to Pages.] 
 Meeker v. Gardi li.i. i Wash. 139. 5S1 
 v. Shanks, 112 Ind. 207. 712 
 
 Meek- \. Leach, 91 111. 323. 
 Mellish v. Richardson. 7 B. & C. 
 
 819, 515. 520 
 
 Melloh v. Demott, 79 Ind. 502, 34. 43 
 Melson v. Dickson, 63 Ga. 529 
 
 Meltenberger v. Logansport, etc., 
 
 Co.. to6 U s. 2S6, 137 
 
 Memmler v. Roberts, 81 Ga. 659. 306 
 Memory v. Niepert, 33 111. App. 
 
 131, 
 Memphis, etc., Co. v. McCool, 83 
 
 Ind. 392, 613 
 
 Mendenhall v. Treadwav, 44 Ind. 
 
 131, " 769 
 
 Menk v. Home, etc., Co., 76 Cal. 50, 790 
 v. Steinfort, 39 Wis. 370, 559 
 
 Mentz, Town of, v. Cook, 10S N. 
 
 Y - 504. 593 
 
 Meracle v. Down. 64 Wis. 323, 655 
 
 Meranda v. Spurlin, 100 Ind. 380, 300, 
 
 54S 
 Mercer v. Corbin, 117 Ind. 450, 165, 
 
 196, 676 
 
 v. Mercer, 114 Ind. 55S, 783 
 
 v. Patterson, 41 Ind. 440, 393 
 
 v. Wholl, 5 Ad. & El. (N. S.) 
 
 447- 615 
 
 Merchants' Bank v. State Bank, 10 
 
 Wall. 604, 416 
 
 Merchants', etc., Co. v. Joesting, 89 
 
 111. 152, 769 
 
 Meredith v. Chancey, 59 Ind. 466, 156 
 
 v. Lackey, 14 Ind. 529, 159. 403, 
 
 59 6 > 6 $3 
 
 v. Lackey, 16 Ind. 1, 403 
 
 v. State, 122 Ind. 514, 230. 
 
 Mergentheim v. State, 107 Ind. 567. 251 
 
 536, 579. 699 
 
 Meridian, etc.. Bank v. Brandt, 51 
 
 Ind. 56, 599 
 
 Meriweather v. Whitley, 3S Tex. 
 
 525, 92 
 
 Merle v. Andrews, 4 Tex. 200, 82 
 
 Mervin v. Universal, etc., Co., 85 
 
 X. V. 27S, 
 
 Merrick v. State. 63 Ind. 327, 292. 718 
 
 Merrifield v. Weston, 68 Ind. 70, 4*9 
 
 Merrill v. Lake. 16 Ohio, 373, 430 
 
 Merrills v. Adams, Kirby, 249, 22 | 
 
 Merritt v. Cobb. 17 Ind. 314, 162 
 
 v. Baldwin, d Wis. 439, 677 
 
 v. Pearson, j6 Ind. 44. 294 
 
 v. Riihcv. 127 Ind. 400, 3^ s 
 
 v. Wells. iS Ind. 171, 599, 603 
 
 v. White, 37 Miss. 43S, 671 
 
 Mesa v. United States, 2 Black, 721, 104 
 
 M< scall v. Tully. 91 Ind. 96, 416, 587
 
 lxxxviii 
 
 TABLE OF CASES. 
 
 [jReferi < 
 
 Messenger v. Kistner, 4 Binn. 97, 667, 
 
 G72 
 Meserve v. Clark, nq 111. 5S0, 317 
 
 Messick v. Midland R. R. Co., 12S 
 
 Ind. Si, 507, 609 
 
 Meyer v. Fiegel, <;S How. Pr. 424, 407, 
 
 793 
 v. Lane. 40 Kan. 491, 636 
 
 v. Lewis. 13 Mo. App. 417, 656 
 
 v. State, 19 Ark. 156, 528 
 
 v. State. 125 Ind. m, ?,:/>, 520 
 
 Stewart. |S Md. 423, 
 v. Yesser, 32 End. 294, 
 Metcalf v. Watertown, 12S U. S. 
 
 . Town of, v. Cook, 10S N. Y. 
 
 -""!■ 
 Metzler v. James, 12 Col. 322, 
 
 v. Metzler. 99 Ind. 384, 
 Miami, etc., Co. v. Baity, 37 Ohio 
 St. 104, 
 v. Wesler, 47 Ind. 65, 528,531 
 
 Midberry v. Collins, 9 Johns. 345, 441 
 Middletown v. Quigley, 7 Halst. 
 
 (N.J.) 35*. 
 
 Midland Rv. Co. v. Dickason, 29 X. 
 
 Rep. 775. 
 
 Midland, etc.. v. McCartney, 1 Neb, 
 
 398, 
 
 Midland R. W. Co. v. Wilcox, ill 
 
 Ind. 561, 3 l6 »34? 
 
 Michel! v. Stinson. So Ind. 324, 
 Michie v. Michie, 17 Gratt. 109, 
 Michigan, etc., Co. v. Bivens, 
 Ind. 263. 
 v. Doherty, 77 Mich. 359, 
 v. McDonough, 21 Mich. 165, 
 v. Northern, etc., Co., 3 Ind. 239, 
 Micklev v. Tomlinson, 79 la, 3S3, 
 
 224 
 767 
 
 4.1S 
 
 734 
 412 
 
 S3 6 
 
 539 
 
 1 I 
 
 67. 
 
 '3 
 
 16S 
 103 
 
 693 
 120 
 
 5S7 
 86 
 
 i-3 
 Milburn Wagon Co. v. Kennedy, 75 
 
 Tex. 212, ' 576 
 
 Miles v. Buchanan, 36 Ind. 490, 2S4, 294, 
 
 297»3«> 5 5"» 63 s 
 
 v. Douglass. 34 Conn. 393, 571 
 
 v. Edsall, 7 Mont. 185, ' 581 
 
 v. Jennings, 6 Mo. App. 589, 159 
 
 1 . >omis, 75 N. Y. 7:1 1 
 
 v. Stevens, 3 Pa. St. 21, 56S 
 
 v. Yanhorn, 17 Ind. 215, 524, 76] 
 
 v. Wikel, 74 la. 712, 556 
 
 v. Wingate, 6 Ind. 45S, 704 
 
 Millar \. Farrar, 2 Black!'. 219. ^2 
 
 \. McAllister, 59 Ind. 491, 320 
 
 Miller v. Adamson, 45 Minn. 99, 781 
 
 \ . Arnold, 65 Ind. | 452 
 
 v. Baker, 20 Pick. 2 17, 750 
 
 v. Billingsley, 41 Ind. 4S9, ^97 
 
 v. Bottorf, 6 Blackf. 30, 2S4 
 
 v. Burton, 121 I ml. 22 |, 2S4 
 
 v. Camp 1 12, 93, 109 
 
 ;•<■ /<> Pages.] 
 
 Miller v. Carmichael, 98 Ind. 236, 
 
 223, -o. 
 v. Deaver, 30 Ind. 371, 
 v. Evansville National Bank, 99 
 
 Ind. 272. 52, 
 
 v Graham. 17 Ohio St. 1, 
 v. Hardin. 04 Mo. 545. 
 v. 1 lays. 20 Ind. 451, 
 v. Holding, 5 Houst. f Del.) 494, 
 v Hower. 2 Raw le. 53, 
 v. Indianapolis, 123 Ind. 196, 
 v. Kolh, 47 Ind. 220, 
 v. Lively, 1 Ind. App. 6, 
 v. Louisville, etc., Co., 12S Ind. 
 
 97* 
 
 McKenzie, 10 Wall. 5S2, 116, 
 v. Montgomery. 78 N. Y. 2S2, 
 v. Morgan. 143 Mass. 25. 
 
 v. Noble, 86 Ind. ^27, 
 
 v. O'Reilly, S4 Ind. 16S, 320, 
 
 3--- 
 v. Perry. 38 la. 303, 
 v. Porter. 71 Ind. 521, 
 v. Powers. iS Ind. 263, 
 v. Royce, 60 Ind. 1S9, 179, 
 
 v. Seligman. 58 Ind. 460, 19S, 
 v. Shackleford, 4 Dana, 264, 
 v. Shall, 67 Barb. 440. 
 v. Shields. 124 Ind. 166, 
 v. Shriner, S7 Ind. 141, 170, 171. 
 v. State, S Ind. 325, 63, 232, 444, 
 v. State, 61 Ind. 503, 
 v. State, 12 Wall. 150, 
 v. Thomas. 71 Cal. 406, 
 v. Yoss. 40 Ind. 307, 092. 
 
 v. Wade. 87 Cal. 410, 
 v. White River School Tp., 
 101 Ind. 503, 
 Millani v. Togrini, 19 Nev. 133, 
 Millard v. Board. 116 111. 23, 
 Millerd v. Thorn. 56 N. Y'. 402, 
 Millett, Ex parte. 37 Mo. App. 76, 
 Milligan v. Poole, ^q Ind. 64, 
 
 v. State, 97 Ind.' 355, SS, 
 
 Millikan v. Patterson. 91 Ind. 515. 
 v. State, 70 Ind. 2S3, 247,36s, 
 
 222, 
 
 349 
 
 704 
 
 •I s " 
 
 61 
 
 4S6 
 
 378 
 
 ;-"- 
 
 7 
 215 
 
 ■7o 
 687 
 
 653 
 
 137 
 73 l 
 
 l82 
 
 Milliken v. Ham, 36 Ind. 166, 
 Millikin v. Houghton, 75 Cal. 539, 
 
 v. Osborne, 12 Ind. 4S0, 
 Milner, Ex parte, 6 Eng. L. & Eq. 
 
 37i- 
 Milner v. Meek, 95 U. S. 252, 
 Million v. Board, 09 Ind. 5, 
 Millior v. Board, 89 Ind. 105, 
 Mills v. Brown, 16 Pet. 425. 62 
 
 Mills v. Buchanan, 36 I ml. 490, 
 
 v. Conner. 1 Blackf. 2. 
 
 v. IIoau r . 7 Paige. iS, 
 
 v. Miller. 2 Neb. 299, 
 
 3-4 
 5 2 3 
 6 44 
 54'> 
 192 
 201 
 695 
 96 
 10S 
 182 
 
 54' 
 268 
 3 SS 
 122 
 773 
 265 
 
 624 
 
 597 
 
 58 
 
 6l q 
 
 SS 
 
 599 
 290 
 790 
 
 374. 
 
 702 
 
 297 
 
 665 
 
 440 
 
 137 
 670 
 2S4 
 
 134 
 763 
 332 
 
 13- 
 
 75
 
 TABLE OF CASES. 
 
 I x x x i x 
 
 [References a 
 
 Mills v. Rico. 3 Neb. ;<>. 634 
 
 v. Simmonds, io End. 464, 755,769 
 v. State. 52 Ind. [87, 231, ;S; 
 
 v. Thurbv. 1 1 1 low. Pr. I [4, 733 
 
 v. Win tor, 94 Ind. 329, 375,610,699 
 
 MilK, ip \ . Stanley, 50 Ala. 319, 
 Milwaukee, etc., Co. v. Pabst, 64 
 
 Wis. 244, 
 
 Mimms v. State, [6 Ohio St. 221, 
 
 Minor v. Louman, 66 Mich. 530, 
 
 v. Rogers, 65 Mich, 22^, 
 
 v. Vedder, 66 Mich. 97. 
 
 Mining Co. v. Taylor, 100 U. S. 37, 
 
 I3 1 
 
 96 
 578 
 
 339 
 57') 
 509, 
 
 573 
 
 58 
 
 488 
 
 616 
 
 "5 
 
 545 
 
 549 
 
 597 
 
 5 66 
 
 446 
 420 
 712 
 
 202 
 716 
 
 33 2 
 192 
 
 63S 
 546 
 
 Minor v. Happersett, 21 Wall. 162, 
 Minor v. Hill. 58 Ind. 176, 
 Minneapolis v. Wilkin. 30 Minn. 140, 61 
 Minnesota, etc., Co. v. Doran, 17 
 
 Minn. [88, 
 
 v. St. Paul Co.. 2 Wall. 609, 
 Minot v. Mitchell, 30 Ind. 228, 
 Minton v. Underwood, etc., Co., 79 
 
 Wis. 646, 
 Minturn v. Farmers, etc., Co., 3 
 
 Sold. 498, 
 
 Mires v. Alley, 51 Ind. 507, 
 Mitchell v. American Ins. Co., 51 
 Ind. 396, 
 
 v. Bunch. 2 Paige Ch. 606, 
 v. Colglazier, 106 Ind. 464, 
 v. Dibble. 14 Ind. 526, 
 v. Friedlev. ijC> Ind. 545, 6^3, 
 v. Gregory, 94 Ind. 305, 212,331 
 v. Lincoln. 78 Ind. 531, 1S1, 
 v. McCabe, io Ohio, 405, 
 v. Monette, 37 Ala. 49, 
 v. Overman, 103 U. S. 62, 17S, 650 
 V. Robinson, So Ind. 2S1, 626 
 
 v. Stinson.So Ind. 324. 159, 161, 511 
 v. Tomlinson. 91 Ind. 167, 537, 678 
 v. United States. 9 Pet. 711, 456 
 v. Wiles, 59 Ind. 304, 435 
 
 Mitcheson v. Foster. 3* Metcf. (Kv.) 
 
 3-4* 
 Mitts v. McMorran, 85 Mich. 94, 
 Missouri v. First National Bank, 74 
 
 111. 217, 
 Missouri, etc., Co. v. Chicago, etc., 
 Co., 132 U. S. 191. 
 
 v. Hoi ley, 30 Kan. 405* 
 v. Lamothe, 76 Tex. 219, 
 v. Munkers, 11 Kan. 223, 
 v. Palmer. 19 Kan. 471, 
 v. Vandeventer, 2<> Neb. 222. 
 Missouri Pacific Rv. Co. v. Hays, 
 15 Neb. 224. 
 
 v. Johnson. 72 Tex. 95, 
 V. Schocnnen. 37 Mo. App.612, 
 Missouri River Tel. Co. v. First 
 Nat. Bank, 74 111. 217. 53; 
 
 20 
 
 6 59 
 
 75° 
 
 sSo 
 6S2 
 
 529 
 201 
 
 39i 
 
 774 
 539 
 
 547 
 
 re to Pages.] 
 
 Mister \ . Corrigan, 1 7 Mo. App.510, 
 Mizer v. Bristol, }o Nob. 138, 
 Mix v. People, 86 111. 329, 
 v. People, 1 22 111. 641, 
 Mobile, etc., Co. v. lurev, 111 U.S. 
 
 584, 
 
 v. Ladd (Ala.). 9 So. Rep. 169, 
 
 v. McCarthy, 56 l'a. St. 359, 
 Mobley v. Slonaker, 48 Ind. 256, 
 
 v. State. 83 Ind. 92, 391, 
 
 Moo v. Moe. 39 Wis. 30S, 
 Moffatt V. Fisher. 47 la. 473. 
 MofHtt v. Wilson, 44 Ind. 470, 
 
 v. Medsker Draining Co., 4S 
 Ind. 107, 
 Mogan v. Thompson, 13 Ore. 230, 
 Mohnev v. Redbank Tp. (Pa.), 15 
 
 Atl. Rep. 891, 
 Mohun's Case. 6 Mod. 59, 
 Molihan v. State. 30 Ind. 266, 
 Moll v. Benckler, 28 Wis. 611, 
 Moller v. Tuska, 87 N. V. 166, 
 Monnett v. Hemphill, 110 Ind. 299, 
 
 Montana Rv. Co. v. Warren, 137 
 
 U. S. 348," 
 Monroe v. Adams Ex. Co.. 65 Ind. 
 60, 
 
 v. Paddock, 75 Ind. 422, 
 v. Snow, ^^ 111. App. 230. 
 Montgomery v. Gorrell, 49 Ind. 230. 
 
 [60 
 
 '•'5 
 
 489 
 
 28 
 
 4'.> 
 
 450 
 45 
 
 760 
 
 o2 
 
 178 
 25O 
 
 7 s " 
 589 
 125, 
 
 494 
 
 62 S 
 
 163 
 
 282 
 
 7'- 
 
 v. Leavenworth. 2 Cal. 57, 
 
 v. Swindler. ^2 Ohio St. 224. 
 
 v. Wasem, 1 [6 Ind. 343. 
 Montgomery Co. v. Auckley, 103 
 
 Mo. 492,' 
 Montmorency, etc., Co. v. Rock. 41 
 Ind. 2(<], 687, 712. 
 
 Montsessonv. Randle, Buller N. P. 
 
 328, 
 Moody v. Fleming, 4 Ga. 115, 
 
 v. Pomeroy, 1 Denio, 115, 
 
 v. Rowell, 17 Pick. 490, 
 
 v. Sewall. 14 Me. 295, 
 
 v. State, S| Ind. | \ 
 
 v. Vreeland, 7 Wend. 55, 2< 7. 
 Moon v.Jennings, 119 Ind. 130. 
 Moonev v. Hough, 84 Ala. So, 
 
 v. Kinsey, 90 Ind. 33, 570. 761, 
 
 v. Maas. 22 la. 3S0, 
 Moore, Estate of, 6S Cal. 394, 
 Moore v. Alerton (Tex.). 15 S. W. 
 
 Rep. 70. 
 
 v. American, etc., Co., 60 Hun. 
 582, 
 
 \ . Barnett, 17 Ind. 349, 
 
 v. Boner, 7 Bush. : 
 
 v. Boyd, 95 Ind. 134. 
 
 v. Brow n. Si Ga. 10. 455. 
 
 11 1 
 615 
 
 147 
 
 650 
 
 7 1^ 
 622 
 
 619 
 
 557 
 602 
 681 
 
 511 
 7 s " 
 ;;<> 
 
 7 93 
 
 490 
 
 7 s
 
 xc 
 
 TABLE OF cASES. 
 
 A\ i, rences are /<> Pages.) 
 
 Moore v. Damon, \ Mo. App. in. 30C 
 
 Ellis, iS Mich. .. 
 \ . Flo_j d, 1 ( )n . 260, 
 v. ( ramgee L. R., 25 Q^ T>. 
 v. Gentry, 25 S. C. .3.34. 
 v. Gilbert, 46 la. .-• 
 v. 1 larland, 107 [nd. 474, 
 v. Held, 73 la. 53S, 
 v. 1 [enry, [S Mo. App. 35, 
 \ . Jordan, 65 Tex. 395. 
 v. Lew i-. 76 Mich. 300, 
 v. L\ mi 79 Ind. 299, 
 v. McDonald. 68 Md. 321. 
 \ . Mc( ruire, 26 Ala. 401. 
 v. Philadelphia Bank, 5 ! 
 R. 41. 
 
 \. Read. 1 Blackf. 177. 2<i2. 
 v. Robbins, iS Wall. 5SS, 
 \ . Ross, 11 X. II. 547, 
 \ . Sargeant, 1 1 2 Ind. 48 ■, 
 
 v. Shields. 121 Ind. 267, 
 
 La. Ann. 
 
 u 
 
 v. Seaton, 31 Ind. 1 1. 
 v. State, '>3 Ga. 165, 
 % . State, 65 Ind. 2 [3, 
 v. State, 72 Ind. 358, 
 v. State. 1 14 Ind. 414. 
 Moores v. McConnell, 
 
 8 4 , 
 
 v. National Bank, 104 
 
 625, 
 Moormen v. Shockney, 95 Ind. SS, 
 
 v. Wood. 1 17 Ind. 144. 
 Moral School Tp. v. Harrison. -\ 
 
 Ind. 93, 
 Mordecai v. Lindsay, i<) How. 199. 
 Mordhorst v. Nebraska Tel. Co.. 2S 
 
 Neb. 610. 
 
 Morehouse v. Heath. 91) Ind. 509, 
 Morford v. White. 53 Ind. 547. 
 
 \ . Woodworth, 7 Ind. 83, 
 Morgan, Ex parti.', 114 L'. S. 174, 
 
 61, 91 
 
 1 jo. 3:50 
 
 -Ml- 630 
 601 • 
 
 675 
 
 271 
 122 
 191 
 461 
 123 
 
 57 1 
 
 619 
 116 
 
 712, 718 
 
 499 
 663 
 
 5 z6 > $33- 
 
 6 39 
 658, 659, 
 
 691 
 
 52 
 
 17S 
 
 162, 762 
 
 437 
 791 
 
 4S3 
 
 614 
 
 28S 
 
 ; s 7 
 
 562 
 
 47S 
 
 699 
 
 535 
 
 5 S 9 
 5/S 
 435- 
 43 6 
 79- 
 6 43 
 775 
 
 Morgan v. Bell, 41 Kan. 345. 
 v. Durfee, 69 Mo. 469, 
 v. Haj's, 91 Ind. 132. 17S, 
 
 v. Incorporated, etc., Co., 64 
 Ind. 213, 
 
 v. Keenan, 27 S. C. 248, 
 
 v. Lake Shore, etc., Co. (Ind.), 
 
 E. Rep. 548, 
 \ . Reji nolds, 1 Mont. 163, 
 
 \ . State. 12 Ind. 44S, 
 
 v, State. 1 5 [nd. 2 15. 
 
 v. Stat.. 51 [nd. [93, 510. 555, 
 Mori arte v. McDevitt, 46 Minn. 136, 718 
 Morisey v. Swinson, 104 V ( ' 
 
 68" 
 Morklar v. Lewi-. 40 Ind. 1, 7S4 
 
 5- 
 68 
 
 59i 
 54 
 677 
 54 1 
 613 
 
 Morley v. Liverpool etc., Co., s ^ 
 
 Mich. 2 to. 
 Morningstar v. Cunningham, no 
 
 Ind. 579, 
 
 v. Musser (Ind.),28N. E. Rep. 
 
 11 19. [59, 505. 
 
 Morrill y. Richcy. 18 N. I I 
 
 Morris, Ex parte. <> Wall. 605, 
 
 Morris v. Angle, 42 Cal. 236, 
 v. Beall, ' -- Ala. ; 
 v. Buck( ■ Co., 7s Ind. 
 
 86, 
 
 v. Gilmer. 129 U. S. 315, 
 
 v. Graves, 2 [nd. 354, 514, 
 
 v. Lachman, 68 Cal. 109, 
 
 \ . Morris, 119 Ind. 341, 
 
 v. Ogle, 56 ( ia. 592. 
 
 v. Piatt, 32 Conn. 75, 
 
 v. Rexford, 18 N. Y. 552, 
 
 v. Runnels. 12 Tex. 176, 
 
 v. State. 1 Blackf. 37. 231, 
 
 v. State. 7 Blackf. 607, 
 
 v. State. 94 Ind. 565, 535, 
 
 v. Stern. 80 Ind. 227. 
 
 v. Thomas. 17 111. 1 12. 
 
 v. Wells. 54 Hun. 634, 
 
 Morrison v. Hedenberg (111.), 27 N. 
 E. Rep. 400, 
 v. Jacoby, 114 Ind. S4, 265, 
 
 v. Judge. 14 Ala. 1S2, 
 v. Lehew, 17 Mo. App. 633, 
 v. Morrison, 16 Hun. 507, 
 v. State. 40 Ark. 44S, 
 v. State, 76 Ind. 335. 251, 623, 
 
 Morris-ev v. People. I 1 Mich. 327, 
 
 Morrow v. Comm'rs, 21 Kan. 4S4, 
 v. State, 48 Ind. 432, 256, 
 
 v. Sullender, 4 Neb. 374, 
 v. Walker, 10 Ark. 569, 224, 
 v. Weed, 4 Ia. 77. 147,284, 
 
 Morse \. Morse. 25 Ind. 150, 554, 
 v. Stockman, 65 Wis. 36, 
 v. Woodworth (Mass.), 27 N. 
 E. Rep. 1010, 
 
 Mortimer v. Nash, 17 Abb. Pr. 229, 
 n., 
 
 Moses v.Julian, 45 N. II. 52, 
 \. Macferlane, 2 Burr. 1005, 
 v. Risdon, 46 la. 251. 
 v. Vroman, 5 Wis. 1 17. 
 v. Wooster, 115 U. S. 285, 
 
 Moslier v. State. 1 | Ind. 201. 
 
 Mosier v. Duckworth (Ind.), 30, 
 
 \ . Stoll. 1 19 Ind. 244. 548 ,622, 
 
 Mo-- \ . State. 101 Ind. 321, 
 
 v. Witness Printing Co., 64 Ind. 
 
 l-'v 
 
 Moulder v. KcmplT. 115 Ind. 459. S. 
 Moulton \. Baer, 7^ ( ra. 2 15, 
 Moultrie v. Dixon. 26 S. C. 290, 
 
 7S7 
 
 597 
 
 510 
 
 546 
 
 497 
 
 16S 
 
 736 
 
 39- 
 5 J 7 
 57- 
 692 
 
 677 
 
 66: 
 
 S§7 
 611 
 
 7S3 
 ^-7 
 572 
 566 
 59o 
 655 
 
 655 
 3 6 4 
 555 
 770 
 96 
 
 3-4 
 740 
 
 763 
 625 
 
 775 
 
 75i 
 
 -^5 
 672 
 
 580 
 68 
 
 ''47 
 10 
 
 635 
 
 791 
 141 
 
 256 
 
 33 
 
 691 
 
 61 
 
 <M3 
 55.3 
 630 
 
 44
 
 TABLE OF CASKS. 
 
 Xi. I 
 
 [References a 
 
 Mount v. Slack. 39 N. I. Eq. 23O, 224,] 
 
 v. Van Ness, 34 N.J. Eq. 523, 225 
 Mountjoy v. State, 78 Ind. 172, 232 
 
 Mover v. Brand. [02 End 301, 505,603, 
 
 606, 607, 60S 
 v. Strahl, 10 Wis. 83, 93 
 
 v. Swygart, 21 111. App.497, 33, 44 
 Movie v. Landers, 78 Cal. 99, 122 
 
 Mudget v. Kent. tS Me. 349, 232 
 
 Mulcahey v. Givens, 115 Ind. 2S0, 61 
 Muldoon v.Blackwell.S^ N. Y.646, 414 
 Muler v. Evansville Nat. Bank, 99 
 
 Ind. 272. S3 2 
 
 Mulhern v. Press, etc., Co., 53 N.J. 
 
 L. 1 ^o, 633 
 
 Mulhoilin v. Ward, 7 Ind. 646. 536 
 
 Mull v. McKnight, 67 Ind. 525, 159, 161, 
 
 164, '17-- 334. 4 6 - 
 
 Mullany v. First Nat. Bank, 89 Ind. 
 
 424, ' 7^5 
 
 Mullary v. Caskaden, Minor (Ala.), 
 
 20. ' 1S3, 1S4 
 
 Mullen v. Morris, 2 Pa. St. 85, 619 
 
 v. State, 34 Ind. 540. 4 
 
 Mullendore v. Scott, 45 Ind. 113, 404 
 
 v. Silvers, 34 Ind. 9S, 736 
 
 Mullikin v. Bloomington, 72 Ind. 161, 285 
 
 Mullin v. Atherton. <>i \. II. 20, 494, 496 
 
 Mullinix v. State, 10 Ind. 5, 232, 254 
 
 Mumford \. Thomas, 10 Ind. 167, 628 
 
 v. Wordwell, (> Wall. 423, 695 
 
 Munly v. State, 7 Blackf. 593, 527 
 
 Muncey v. Joest, 74 Ind. 409, 147, 2S4, 
 
 2 86 
 
 Munday v. Collier, 52 Ark. 126, 639 
 
 Munson v. Blake. 101 Ind. 7S, 123 
 
 v. Lock, 48 Ind. 116, 26S 
 
 Murdock v. Brooks, 3S Cal. 596, 323 
 
 v. Cincinnati, 39 Fed. Rep. 891, 121 
 
 v. Clarke, 90 Cal. 427. 624 
 
 v. Cox, ilS Ind. 266, [9, 395, 475 
 
 v. District of Columbia, 23 Ct. 
 
 of CI. 41. 9 s 
 
 v. Martin. 132 Pa. St. 86, 76 
 
 v. Memphis, 20 Wail. 590, 92 
 
 Murphy v. Clayton, 51 Ind. 147. 675 
 
 v. Common wealth. 2 } (iratt.960, 674 
 
 v. Consolidated, etc.. Co.. }2 
 
 111. 612, 315 
 
 v. Kjng, 6 Mon. 30, 65 
 
 v. Lambert, 59 tnd. 477. 636 
 
 v. Ross, 2 Wash. 327, 44" 
 
 v. Steele, 51 Ind. 81, 324 
 
 v. State, 97 Ind. 579. 250 
 
 v. Teter, 56 Ind. 545, 736 
 
 v. Tilly. 11 Ind. 511. [62,601, 769 
 
 v. United States, 104 U.S. 404, 127 
 
 Murphrey v. Wood, 2 Jones ( N. C), 
 
 re to Pages.] 
 Murray v. Abbott, 61 Wi 
 v. Berdell, 98 N. "V 
 v. Charleston, 96 U. s. 432. 
 v. Ebright, 50 Ind. y<2. 603, 7 2 
 v. Fry, 6 Ind. 371, 
 v. Phillips, 59 1 nd. 56, 
 
 ribner, 70 Wis. 22S, 1 7 
 
 v. State, 26 Ind. [41, 250 
 
 v. Usher, 117 N. Y. 542, 745 
 
 V. Williamson. 79 Ind. 2S7. 379. 4)'' 
 
 Murrell v. .Smith. 51 Ala. 301, 409 
 
 Murrill v. Murrill, 90 N. C. 120 41/) 
 
 Murrv v. Burris, 6 Dak. 170, $j2 
 
 Muscoe V. Commonwealth, S6 Va. 
 
 443. _ 2 53 
 
 Musgrove v. Glassgow, 3 Ind. 31, 327 
 
 Musselman's Appeal, 101 Pa. St. 165, 13 
 
 Musselman v. Cravens, 47 Ind. 1, 
 
 v. Kent. 33 Ind. 452. 
 
 v. Musselman, 44 Ind. 106, 521, 545, 
 
 7S6 
 
 v. Pratt, 44 Ind. 126, 534, 571 
 
 v. Wise, 84 Ind. 24S, 403. 572 
 
 Musser v. Hawood, 23 Mo. App. 495 
 
 Mussina v. Cavazos, 20 How. 280, 92, 
 
 116. 137 
 Mutual Life Ins. Co. v. Snyder, 95 
 
 U. S. 393, 643, C62 
 
 Mutual, etc., Co. v. Cannon. 48 Ind. 
 
 264, 5S0 
 
 Myer v. Moon, 45 Kan. 580, 634 
 
 Myers v. Conway. 62 Ind. 474, 766 
 
 v. Crow, 113' N. Y. 608, 413 
 
 v. Duabenbiss, S4 Cal. 1, 
 v. Field, 37 Mo. 434, 
 v. Kendrick, 13 la. 599, 483 
 
 v. Lawyer, 99 Ind. 237, 1^7 
 
 v. McDonald, 68 Cal. 102. 499 
 
 v. Mitchell (S. Dak.), 46 N.W. 
 Rep. 246, 
 
 v. Moore. 2S N. E. Rep. 724. 521 
 v. Murphy, 60 Ind. 282, 62 5 
 v. State. 1 15 Ind. 554. 520 
 
 Mvgatt v. Ingham, Wright (Ohio), 
 
 V 7". 
 Myrick v. Meritt, 22 Fla. 335, 674 
 
 N 
 
 L. 6 
 
 "5 
 
 N. P. Terminal Co. v. Lowenberg, 
 
 n Ore. 286, 
 Naffzieger v. Reed. 98 Mo. s 7- 
 Nalker v. State. 102 Ind. 502, 
 Nalley v. State. 2s Tex. \pp. 387, 
 Nance v. Metcalfe, 1.) Mo. Ap. 1S3, 
 Nash v. Caywood, 39 Ind. 457, 
 Nashua Savings Bank v. Lovejoy, 
 
 1 N. Dak. 211. 
 National Bank v. Dunn, 106 Ind, 
 
 110, 271. 
 
 517 
 622 
 
 4M 
 687 
 
 734
 
 X C 1 1 
 
 TABLE OF CASES. 
 
 [ A\ /. rences a 
 National Bankv. Farvis, 26 VV. Va. 
 
 - 7 S 5- 7i 
 
 v. Omaha, 96 I . S. 737, 2oS 
 
 mal Banking, etc.,Co.v. Knaup, 
 
 55 Mo - »S4i (l l 
 National, etc., Bank v. McConnell 
 
 Ala.,, 9 So. Rep. 149. 544 
 National City Bank v. New York, 
 
 etc., Exchange, 97 V Y. 645, 463 
 
 mI Benefit Asso. v. Grauman, 
 
 107 [nd. 2SS, 67S 
 
 Nations v. Johnson, 24 How. 195, 134 
 
 Nave v. First Nat. Bank,$7 [nd.204, 146 
 
 v. Flack. 90 End. 205. 535, 577. 7 00 
 
 v. 1 ladlcy, 7 1 [nd. 155, 604 
 
 v. Nave. 12 Ind. 1, 777 
 
 v. Wilson, 1,7, Ind. 294, 563 
 
 Nay v. Byers, 13 [nd. 412, 197 
 
 Naugle v. State. 101 [nd. 2S4, 568 
 
 Naylor v. Moody, 2 Blackf. 247, 321 
 
 v. Sidener, to6 Ind. 179, 81 
 
 Neagle, In re 4 Sawy. 2^2, 7 
 
 Neal v. Field, 68 Ga. 534, 127 
 
 v. Mills, 5 Blackf. 208, 71s 
 
 v. State. 49 Ind. 51, 604 
 
 Nealis \. Dicks. -2 Ind. 374, 6 
 
 Nealley v. Greenough, 25 N. II. 325, 697 
 
 Nearing v. licit. 5 Hill, 291, 617 
 
 Nebraska, etc., Co. v. Maxon, 2 : 
 
 \. !). 22 |. 
 
 Needham v. Webb, 20 Ind. 213, 
 Needless v. Burk, Mo. 474, 
 Ned v City of Toledo, 5 Ohio C 
 
 C. 203, 
 Neil' \ . Clute, 12 Barb. 406, 
 
 v. Reed, 98 Ind. 341. 217, 300, 539, 
 
 630 
 Neidefer v. Chastain, 71 Ind. $<>t,. ijSS, 
 
 '635 
 Neilson v. Chicago,etc.,Co., 5S Wis. 
 5.6, ' 
 
 \ . C ommercial Mutual Ins. Co., 
 3 Duer, 455, 
 Neigler v. Harris, 115 Ind. 560, 
 Ncllis v. Lathrop, 22 Wend. 121, 
 Nelson v. Brov\ n. 20 Ind. 74, 
 
 669 
 
 403 
 491 
 
 515 
 401 
 
 539 
 
 V. Da\ is, 35 Ind. 47 |, 
 
 v. State, 2 Swan. 237. 
 
 v. Tenney, 113 N. Y. 616, 
 
 \. Warren (Ala.;, 8 So. Rep. 
 
 190 
 
 7 2 3 
 56 
 
 599 
 599 
 538 
 449 
 
 4'3- 
 
 \ . Welch, 1 1 ^ Ind. 270, 6 
 
 v. Wilson, 75 la. 710, 
 Neptune v. Taylor, 108 Ind. 459, 
 Nesbil v. Miller, 125 Ind. to6, 
 New v. New. 1 27 Ind. 576, 
 
 V. Walker, 10S 1 ml. 365, 60 
 New Albany, etc.. Co. v. Callow. N 
 Ind. 471, [96, 62S 
 
 v. Combs, 13 Ind. 490, 378, (i^2 
 
 7\<> 
 7 So 
 
 402 
 
 558 
 
 736 
 
 554 
 
 re to Pages.] 
 
 New Albany, etc.. Co. v. Day, 117 
 
 Ind. 337. " 391 
 
 v. I lull. 19 Ind. 444. (.20 
 
 \ . Welsh, 9 Ind. 470, 2S|, 671 
 
 New Albany v. White, 100 Ind. 206. 2S8, 
 
 -97 
 New Albany, City ol, v.McCulloch, 
 
 127 Ind. 500, 579, 678, 7S7 
 
 New England Iron Co. v. New York 
 
 Loan Co., 55 How. Pr. 351, 696 
 
 New lira Lite Asso. v. Weigle, 12S 
 
 Pa. St. 577, 5 17 
 
 New Haven v. Whitney, 36 Conn. 
 
 373- " 30 
 
 New Home Lite Asso. v. Hagler, 23 
 
 111. A pp. 4,7. 639 
 
 New Orleans v. .scalzo, 41 La. 
 
 Ann. 1 141, 444 
 
 New Orleans Ins. Co. v. Albro.Co., 
 
 |I2 I. S. 506, 212,316 
 
 New Orleans, etc., Co. v. Bosworth, 
 8 La. Ann. So, 140 
 
 v. Crescent City Co., 33 La. 
 Ann. 934, 126 
 
 New Orleans, City of, v. Whitney, 
 
 13S U. S. 595, 4S9 
 
 New York, etc., Co., Matter of, 35 
 Hun. 575, 647 
 
 v. Auer, 106 Ind. 219, 59S 
 
 v. Doane, 105 Ind. 92, 9S, 779 
 
 v. Fifth Nat. Hank, liS U. S. 
 60S, 51 
 
 v. Fifth Nat. Bank, 135 U. S. 
 
 43^> 6 39 
 
 v. Gallagher, 79 Tex. 6S5, 5S1, 655 
 
 v. Schuyler, 17 N. Y. 592, 732 
 
 v. Wilson, S Ret. 291, 756 
 
 New York Elevated R. R. Co. v. 
 
 Fifth Nat. Bank, 118 U. S. 60S, 78 
 Newark, etc., Co. v. Perry Co., 30 
 
 Ohio St. 120, 189 
 
 Newberry v. Furnival, 50 N.Y.63S, 028 
 
 Newby v. Myers, 44 Kan. 477, 724 
 
 v. Warren, 24 Ind. 161, 747 
 
 Newcomb v. llorton, iS Wis. 566, 596 
 
 v. Newcomb, 13 Bush. ^44, 072 
 
 v. White (N. ML), 23 Rac. Rep. 
 
 671, 676 
 
 New come v. Wiggins, 7S Ind. 306, 282 
 
 Newcomer v. Hutchins, 96 Ind. 
 
 119, 36S, 569,/uo, 678 
 
 Newell v. Avers, ^2 Me. 334, 579 
 
 Newell v. Catling, 7 Ind. 147. 64.87. 755 
 
 Newhouse v. Miller, 35 Ind. 463, 393, 401 
 
 Newkirk v. State. 27 Ind. 1, 619 
 
 Newman, Ex parte, 14 Wall. 152, 439 
 
 Newman v. Hammond, 46 Ind. 119, 069 
 
 v. Riser, 128 Ind. 250, 452 
 
 v. Riser (Ind.), 26 N. F. Rep. 
 
 1006, 126,228.350,352
 
 TABLE OF CASES. 
 
 xcm 
 
 [ References 
 Newman v. Manning, 89 Ind. 422. 734 
 Newton v. Newton, 12 lnd. 5-7, <«><> 
 
 \. Newton, 46 Minn. 33, 546,655 
 
 \ , Tyner, 1 28 I ml. 466, 
 
 v. Whitney, 77 Wis. 5 15 
 Niklaus v. Roach, 3 Ind. 78, 
 Nichol v. Henry, 89 Ind. 54, 
 
 v. Thomas, 53 Ind. 42, 
 
 Nichols v. Cito, 132 111. 91, 
 v. Cornelius, 7 Ind oil, 
 v. Glover, 4 1 Ind. 24, 
 v. Nichols, 96 Ind. 433, 
 v Mate, 65 Ind. 512, 
 
 v. State, 127 Ind. 406, 
 
 743 
 
 7^7 
 
 603 
 
 333 
 162,172. 
 
 5-5- 759 
 
 44 
 
 88 
 
 4S0 
 
 282 
 
 163, 5S0, 619, 
 
 766, 786 
 
 2 47- 2 55i 
 40S, 672 
 
 6 57 
 
 i s 5- 217 
 
 v. White, 85 N. V. 531, 
 Nicholson v. Stephens, 47 Ind 
 Nickless v. Pearson, 126 Ind. 477, 491, 
 
 68S 
 Nicodemus v. Simons, 121 Ind. 564,718 
 Nietert v. Trent man, 104 Ind 390, 2S2 
 Nill v Comparet, 16 Ind 107, ' 462 
 Nitchie v. Earle, 117 Ind. 270, 12S, 54S, 
 
 610, 712 
 Niven v. Burke, S2 Ind. 455, 744 
 
 Nixon v. Beard, 111 Ind, 137, 535,562 
 
 v. Campbell, 106 Ind. 47, 50S, 554, 
 
 562 
 
 v. Hammond, 12 Cush. 2S5, 232 
 Noakes v. Monv, 30 Ind. 103,- 624, 6S6 
 Noble v.' Blount, 77 Mo 235, 54^ 
 
 v. Bourke, 44 Mich 193, 34S 
 
 v. Dickson, 4S Ind. 171, 7S4 
 
 v. Enos, 19 Ind 72, 694 
 
 v. Murphy, 27 Ind. 502, 101, 467 
 Noblesville, etc., Co. v. Cause, 76 
 Ind. 142, 
 
 v. Leehr, 124 Ind. 79, 
 
 v. Titer, 1 Ind. App. 322, 
 
 v. Vestal, 11S Ind. So, 
 Noe v. State, 92 Ind. 92, 
 Noll v Smith, 6S Ind. iSS, 
 Nonesuch, The, 9 Wall 504, 
 Noon v. Lanahan, 55 Ind 2O.2, 
 Noonan v. Ilsley, 22 Wis. 27, 
 Norburv v. Meade, 2 Bligh. 261, 
 Nord v. Martz, 56 Ind. 531, . 
 Norden v. Jones, 33 Wis. 600, 
 Nordvke, etc., Co. v. Dickson, 76 
 Ind. iSS, 
 
 v. Van Sant, 99 Ind. 1S8, 
 Norfolk Southern R. Co. v. Ely, 95 
 
 N. C. 77, 
 Norman v. \\ inch. 65 la. 263, 
 Norris v. Dodge, 23 Ind. 190, 
 
 v. State. 95 Ind. 73, 
 North v. State. 107 Ind. 356, 
 
 535 
 70S 
 
 759 
 690 
 
 530 
 32S 
 
 x & 
 6S3 
 
 6 5 8 
 
 17 
 
 i79 
 
 5«7 
 
 294 
 640 
 
 iirr tn Pages.\ 
 North, etc., Co. x. Crayton, 
 
 499. 
 North American Ins. Co. v. Fore 
 
 heimer, 86 Ala. 541, 
 North Vernon, City of, v. Voegler, 
 
 103 Ind. 314, 
 Northam v. Gordon, 23 Cal. 2;;. 
 Northcutt v. Buckles, 60 Ind. 
 
 64, 
 Northern Ind. R. Co. v. Michigan 
 
 Central R. Co., 2 Ind. 670, ^2, 
 
 Northern Pac, etc., Co. v. Holmes, 
 
 3 Wash. Ty. 543, 
 Northern R. R Co. v. Herbert, nC> 
 
 U. S. 642, 
 Northwestern, etc., Co. v. Blanken- 
 
 ship, 94 Ind. 535, 
 
 v. Hazelett, 105 Ind. 217. 251, 
 
 374- 44''- 
 v. Landes, 6 Minn. 564, 
 Northwestern Mutual, etc., Co. v. 
 
 Ileimann, 94 Ind. 24, 
 Norton v. Moshier (111.), 28 N. E. 
 
 Rep 463, 
 
 v State, 106 Ind. iC>t„ 162, 232, 
 Norvell v Hit 1 1 \ 23 lnd. 346, 
 Norwood v. Kenfieid, 30 Cal. 393, 
 Norwich, etc., Co. v. Worcester, 
 
 147 Mass. 518. 
 Norwich. Mayor of, v. Berry, 4 
 
 Burr. 2277. 
 Nowlm v. Whipple, S9 Ind. 490, 288, 
 Nowling v. Mcintosh, 89 Ind. 595. 
 Nudd v. Burrows, 91 U. S. 426, 
 Nugen v Laduke, 87 Ind. 482, 
 Numan v. Valentine, S3 Cal. 5SS, 
 
 Numbers v. Bowser, 29 lnd. 491, 
 Nutter v Junction R. Co., 13 Ind. 
 
 479. 
 
 v State, 9 Ind. 17S, 
 
 Nutting v. Losance, 27 Ind. 37, 
 
 Nye v. Lewis, 65 Ind. 320, 
 
 v. Lowry, S2 Ind. 316, 
 
 NyseWander v. Lowman, 12 1 Ind. 
 
 5S4, 146, 2S5, 520, 
 
 757. 
 
 581 
 
 495 
 
 333 ■ 
 
 573 
 
 7 S 4 
 334 
 
 49- 
 253 
 
 555 
 (no 
 
 650 
 
 368 
 
 589 
 
 9 
 
 395 
 124. 
 
 I2s 
 567 
 
 354 
 782 
 
 7'' x 
 76l 
 
 555 
 
 635 
 
 o 
 
 61 
 
 2S7 
 253 
 
 59- 
 
 O'Boyle v. Shannon, 80 Ind. 159. 62 
 O'Brien v. Browning, 49 How. Pr. 
 109, 
 
 v. Commonwealth (Kv.), 12 S. 
 W. Rep. 471, 530 
 
 v. Gaslin, 24 Neb. 559, (.91 
 
 v. Peterman, 34 Ind. 556, 20;. 751 
 v. State. 63 Ind. 242, 407 
 
 v. State. 125 Ind. 5 s . ('72. 680
 
 '.^ LV 
 
 TABLE OF CASES 
 
 [References a 
 
 O'Brien v. Vulcan Iron Work-, 7 
 
 Mi 1 A pp. 257, 528, 62 1 
 
 ( >'Callahan v. Bode, S4 Cal. 489, 
 
 574 
 ( ) «. onnell v. Gillespie, 17 Ind. 459, 
 
 v. O'Leary, 1 5 1 Mas-. 83, 
 1 ' v mnor v. Guttiie, d la 
 ( >'Dea v. Stat,-. 57 [nd. 31, 
 O'Dell \ . Carpenter, 71 Intl. 463, 
 O'Donald v. Constant, 82 Ind. 212. 
 
 57°, 
 666 
 
 34- 
 
 43 
 
 49 1 
 
 619 
 
 792 
 281 
 172, 
 747 
 703 
 139 
 
 129 
 254 
 
 12 2 
 
 411 
 30 
 
 547 
 619 
 
 O'Donnell v. Segar, 2^ Mich. 367, 
 
 < I'Dowd v. Russell, 1 \ Wall. 402, 
 O'Hara v. MacConnell, 93 U. S 
 
 150, 
 
 < )'l lare v. People, 40 111. 533, 
 ( )'Kane v. Daly, 63 Cal. 317, 
 O'Leary v. Iskey, 12 Neb. 136, 
 
 V. Sloo, 7 La. Ann. 25, 
 
 O'Neal v. Wade. 5 Ind. 410, 
 
 O'Neall v. Calhoun, 67 111. 219, 
 
 O'Neil v. Chandler, 42 Ind. 471, 174, -440 
 
 v. New York, etc., Co., 115 N. 
 
 Y. 579, 391 
 
 O'Neill v. Jones, 43 N. Y. 84, 1550 
 
 O'Reilly v. Edington, 96 U. S. 724, 20S, 
 
 212, 31S, 324 
 
 v. New York, etc., Co. (R. I.), 
 
 17 Atl. Rep. 906, 
 
 O'Shea v. Kirkes,8 Abb. Pr.69, 
 O' Sullivan v. O'Connors, 22 linn. 
 
 [ 37, 
 v. Roberts, 39 N. Y. 360, 
 Oakland Paving Co. v. Bogge, 79 
 
 Cal. 439, 
 Ober v. Indianapolis, etc., Co., 13 
 
 Mo. App. 81, 
 Oberfelder v. Kavanaugh, 29 Neb. 
 
 4 2 7. 
 Obernalte v. Edgar, 2S Neb. 70, 
 
 H3 
 603 
 
 3 2 5 
 652 
 
 4S1 
 
 774 
 537 
 
 Ochs v. People, 124 111. 399, 528, 559 
 Odell V. Carpenter, 71 Ind. 463, 282 
 
 v. Reynolds, 40 Mich. 21, 647 
 
 Oder v. Commonwealth, So Ky.32, 160 
 Oelricks v. Spain, 15 Wall. 211, 1,2 
 
 iorn v. Hoffman, 52 Ind. 439, 759 
 
 Ogden v. Saunders, 12 Wheat. 213, 5S 
 
 Ogilvie v. Richardson. 14 Wis. 1^7, 467 
 
 v. Dill. 55 Ind. 130, 85, 300, 345, 
 
 025,692, 719 
 
 Ohio v. Cowles, 5 Ohio St. 87, 63S 
 
 Ohio, etc., Co. v. Collarn, 73 Ind. 
 
 261, 674 
 
 v. Dooley, 32 111. App. 22S, 571 
 
 v. Hardy, 64 Ind. 454, 313, 321 
 
 v. I lavs. 35 Ind. 173, 748 
 
 v. I I r, 43 Ind. 402, 297 
 
 v. McCartney, 121 End. 385, 345, 
 
 ' 746, 782 
 
 re to Pages.] 
 
 ( (hio, etc., Co. v. Nickless, 73 Ind. 
 
 3 S ^> 373. 562, 
 
 \. I rowhridge. t26 Ind. 391, 
 v. Voight, t22 Ind. 2S8, 
 v. Walker. 1 [3 Ind. [96, 730. 
 Ohm's Est., In re, 82 Cal. 160, 
 Oiler v. Bodkey, 17 Ind. 600, 
 Old v. Mohler, 122 Ind. 594, 2S3, 
 
 39°i 
 
 Oldenberg v. Devine, p> Minn. [.09, 
 Olds v. Deckman, 98 Ind. 162, 164, 
 
 v. State. 6 Blackf. 9] . 
 Olds Wagon Co. v. Benedict, 25 
 
 Neb. 372, 
 Oliver v. Depew, 14 la. 490, 
 
 v. Pate, 13 Ind. 132, 537, 
 
 v. Phelps, Spencer N.J.), i s ", 
 Ollam v. Shaw. 27 Ind. 388, 533,689, 
 Olmstead v. Abbott. 61 N't. 281, 
 Olney v. Hatcliff, 37 Hun. 286, 
 Olson v. Solverson, 71 Wis. 663, 
 Olvey v. Jackson, 106 Ind. 2S6, 
 Omaha, etc., Co. v. Tabor, 13 Col. 
 
 4 1 , 
 Oneal v. State, 47 Ga. 229, 
 Onondaga, etc., Co. v. Minard, 2 
 
 N. Y. 98, 
 Ophir, etc., Co. v. Carpenter, 6 Nev. 
 
 393- 
 
 Opdvke v. Marble, 44 Barb. 64, 
 Opp v. Ten Eyck,99 Ind. 34;, 213, 
 
 3°9. 3 2S < 
 
 v. Ward, 125 Ind. 241, 
 
 Oppenheim v. Pittsburg, etc., Co., 
 
 85 Ind. 471, 147, 1S7, 
 
 Opinion of Justices, 21 N. E. Rep. 
 
 439, ^3 Fla. 297, 49 Mo. 216, 79 
 
 Ky.621, 5 
 
 Oregon, etc., Co. v. Barlow, 3 Ore. 
 
 311, 616 
 
 Oregonian Ry. Co. v. Oregon, etc., 
 
 Co., 27 Fed. Rep. 277, 494 
 
 Ormes v. Dauchy, 82 N. Y. 443, 550 
 Orr v. Fleek, 111 Ind. 40, 9 
 
 v. Miller, 98 Ind. 436, SS, 612, 613 
 v. Worden, 10 Ind. 553, 162 
 
 Orth v. Dorschlein, 12 Mo. 366, 554 
 Ortman v. Dixon, 9 Cal. 23, |62 
 
 Orton v. Tilden, no Ind. 131, 248, 274, 
 
 394- 75 s 
 
 Osborn v. Sutton, 10S Ind. 443, 419, 
 
 v. UnitedStates Bank, 9 Wheat. 
 
 73S, 16, 217 
 
 v. Kline, 18 Neb. 344, 615 
 
 v. Poe, 6 Humph, in, 117 
 
 v. State, 12S Ind. 129 592 
 
 Osborne & Co. v. Williams,37 Minn. 
 
 507, 402 
 
 Oscanyan v. Arms Co., 103 U. S. 
 261, 416. 617 
 
 773 
 
 7"7 
 77i 
 7:^ 
 
 65 
 790 
 
 394, 
 
 5 f '7 
 294 
 7(7 
 306 
 
 769 
 554 
 760 
 
 267 
 
 ( >g< , 
 
 216 
 
 r, 9 6 
 
 655 
 704 
 
 791 
 
 7.5° 
 
 411 
 697 
 
 308, 
 
 339 
 328 
 
 284
 
 TABLE OF CASES 
 
 xcv 
 
 \Referen 
 Osgood v. Jones. 60 N. II. 5 |j. 1592 
 
 v. State, 6 1 Wis. 172. 67 , 
 
 Oshkosh, etc., Co. v. Germania, etc., 
 
 Co.. 71 Wis. 454. 
 Ostrander, Ex parte. 1 Denio, 679, 440 
 Ostrander v. Clark, S Ind. 211, 521 
 
 v. Weber, 114 \. Y . 95, 729 
 
 Oswald v. Wolf, 25 Ill.App. 501, 44 
 Otis v. De Boer, 116 Ind. 531, 147, 
 
 2S5, 488 
 Otter Creek, etc., Co. v. Ranej 
 
 Ind. 329, 624, 686 
 
 Outlaw v. Davis. 27 111. 466, 577 
 
 Over v. Schiffling, 102 Ind. 191, 5 V 
 
 699, 702 
 v. Shannon, 75 Ind. 352, 507, 562, 
 
 608, 609 
 
 ( >\erly v. Tipton, 68 Ind. 410, 599, 
 
 Overton v. Overton, 17 Ind. 226, 45, 50 
 Owen v. Cooper, 46 Ind. 524, 179 
 
 Owen v. Going, 13 Col. 290, 383 
 
 v. Phillips, 73 Ind. 2S4, 566 
 
 Owen School Tp. v. Hay, 107 Ind. 
 
 35 1 . " 394- 39 6 
 
 Owens v. Branson, 2S Mo. App. 5S4, 7(1 
 
 v. Crossett, 104 111. joS, go 
 
 v. Mitchell, 33 Tex. 225, 74 
 
 Owings v. Kincannon, 7 Pet. 399, 139 
 
 Owne v. Going, 7 Col. 85, 6S, 71 
 
 Pacev v. Powell, 97 Ind. 371, 53 
 
 Packard v. Backus, 7S Wis. iSS, 663 
 v. Mendenhall, 42 Ind. 598, 393 
 
 Packet Co. v. Sickles. \^ Wall. 611, 769 
 Pacific R. R. Co., In re, 32 Fed. Rep. 
 
 241. 26 
 
 Pacific, etc., Co. v. Bolton, S9 Cal. 
 
 '54- 3 J 9 
 
 Pacific Exp. Co. v. Malin, 132 U. S. 
 
 53 1 - 7 6 i 
 
 Padgett v. State, 93 Ind. 396, 335. 462 
 
 Page, Estate of, 57 Cal. 238, 7<u 
 
 Page v. Commonwealth, 27 Gratt. 
 
 954- 679 
 
 v. Latham, 60 Cal. 601, 447 
 
 v. Sumpter, 53 Wis. 652, 485 
 
 Pahmever v. Groverman, 60 Ind. 7, 261 
 Paige v. O'Neal, 12 Cal. 483, 736 
 
 v. Fazackerlv. 36 Barb. 392, 402 
 
 Paine v. Cowdin, 17 Pick. 142, 463 
 
 v. Moorland, 15 Ohio, 435, 2^;. 
 
 435- "7- 
 
 v. Woollev. So Ky. 56S, 127 
 
 Painter v. Guirl, 71 Ind. 240, 4'' 
 
 Palairet's Appeal, 67 Pa. St. 479, 105 
 
 Palmer v. Arthur. 131 I". S. 60, 636.653 
 
 v.Chicago, etc., Co., 112 End. 
 
 250. 644. 723 
 
 re tii Pages.\ 
 
 Palmer \ . ' I lun. t > t > t > , 
 
 Davis, 2I \ . Y. 242, 
 
 v. 1 laves. 112 Ind. ; 
 
 v. Oakley. 2 Don-. (Mich.). 
 
 Pittsburgh, etc., Co., 1 12 Ind. 
 
 Pr.235, 
 Kan. 295, 
 
 4.sS. 
 502, 
 
 433- 
 
 v. 
 
 260, 
 
 v. Rogers, 70 la. 381 
 Pam v. Vilmar, 54 How. 
 Pamer v. Rombauer, 41 
 
 21 Pac. Rep. 7^ |. 
 Panton v. Manley, 89 I!!. 
 
 Pape v. Wright, 1 16 Ind. 
 
 Park v. Balentine, 6 Blackf. 22^. 
 
 Parker. Ex parte. 120 U. S. 737 
 Parker, Ex parte. 131 L'. S. 221, 
 Parker v. Bates. 20 Kan. 597, 
 
 v. Clayton. 72 Ind. 307. 393,394, 
 v. Commonwealth, 8 P. Mon.30, 
 v. Courtnay, 2S Neb. 60;, 
 v. Cutler Milldam Co.. 20 Me. 
 
 353< 
 
 v. Dacres, 2 \\ ash. Ty. 440, 
 
 v. Enslow, 102 HI. 272. 
 
 v. Georgia, etc.. Co.. S3 Ga. 539. 
 
 537- 
 
 v. Hastings. 12 Ind. 654, 
 
 v. Home, 3S Miss. 215. 
 
 v. Hubble, 75 Ind. 580, 19, 476. 
 
 v. Indianapolis Nat. Bank, 126 
 Ind. 595, 
 
 v. McAllister, 14 Ind. 12. 
 
 v. Meadows. 86 Tenn. 1S1, 
 
 v. Medsker, So Ind. 155, 507. 
 
 v. Morrell, 2 Phil. 453, 
 
 v. Morrill, 106 I". S. 1, 
 
 v. People, 13 Col. 155. . 545, 
 
 v. Reay. 76 Cal. 103. 
 
 v. Remington, etc.. Co., 24 Kan. 
 31. 200, 
 
 v. Richolson, 46 Kan. 2S3, 
 
 v. Russell, 3 Blackf. 411, 
 
 v. Small. 58 Ind. 349, 
 
 v. State, Si Ga. ^^2, 
 
 v. State. 7S Ind. 259, 251, 
 
 v. Urie, 21 Pa. St. 305, 
 
 v. Winnipiseogee Co., 2 Black, 
 
 4-' 
 
 459 
 
 593 
 
 146 
 
 i : i 
 739 
 
 43* » 
 
 70'. 
 396 
 67+ 
 
 261 
 
 539 
 
 140 
 718 
 
 3° 
 420 
 
 4 s - 
 666 
 
 '7 
 444 
 679 
 
 7 s '' 
 201 
 
 43 
 604 
 
 545- 
 
 Parks v. Barney, 55 Cal. 239. 
 \ . Boston, 15 Pick. 19S, 
 v. Hazlerigg, 7 Blackf. 536, 
 v. Ross. 1 1 I low. 362, 
 v. Young, 75 Tex. 278, 
 
 Parratt v. Neligh, 7 Neb. 456, 
 
 Parmelee v. Fischer. 22 111. 212, 
 
 Parmater v. State. 102 1 nd 
 
 Parmlee \ . Sloan. 37 Ind 
 
 Parsley v. Fskew. 73 Ind. 
 
 Parson v. Haskell. 30 111. App. 444. 
 ms v. Hedges, 15 la. 1 19. 
 
 [92 
 
 594 
 109 
 
 3*3 
 
 4 s " 
 615 
 
 75 ] 
 
 45 
 545
 
 XCV1 
 
 TABLE OF CAS1 S. 
 
 Parsons v. Loyd, 3 Wills. 341, 
 
 v. Milford, 67 Ind. 489, 
 
 \ . Piatt, 37 Conn. 563, 
 
 v. Stockbridge, 42 End. 121, 
 
 Partridge v. Gilbert, 3 Dun. [S4, 
 
 Pass \ . Paj ne, 63 M iss. ; 
 
 I ' 1 >ur v. Linebergei . 90 N. C. [59 
 
 Passmore v. Passmore, [13 Ind. 237, 508 
 
 Patapsco, 'J'liL'. 1 2 Wall. | 5 1 . :<< 
 
 Paul \ . 1 )avis, too 1 nd. 422, 47 \ 
 
 Pauley v. Cauthorn, toi Ind. 91, 
 
 Paulman v. Claycomb, 7; Ind. 64, 
 
 Paulsen v. Manske, 126 111. 72. 
 
 Pavey v. American Ins. Co., 56 
 
 Wis. 221, 
 
 \ . Pa\ (v. 30 Ohio St. C100, 
 
 v. Wintrode, 87 Ind. 379, 773, 771 
 
 Pawling v. L nited States. 4 Crunch. 
 
 {References are to Pa t 
 
 Payne v. Miles, 20 How.U. S.2i< 
 
 -'SO 
 
 ?>- 
 
 r 1 
 625 
 
 31- 
 
 6 
 
 69 2 
 63S 
 
 219 
 Paxton v. Daniel. 1 Wash. 16, 
 
 040 
 
 633 
 Pate v. F irsl Nat. Bank, 63 Ind. 254, 413 
 
 69 
 
 483 
 670 
 
 S3 
 254 
 655 
 689 
 
 M oore, 79 1 nd. 20, 
 v. Roberts, 55 Ind. 277, 
 v. Tait, -2 Ind. 450, 
 
 Pati rson v. Hopkins. 23 Mich. 541, 
 
 Pal tee \ . state. 109 1 nd. 545, 2 59 
 
 Patten v. Belo, 70 Tex. 41, ' 
 1 son v. Ball, 19 Wis. 243. 
 v. Churchman, [22 Ind. 379, 696, 771 
 v. Copeland, 52 How. Pr. |.6o, 601 
 v. Crawford, 12 Ind. 241. 589 
 
 v. Hamilton, 26 Hun. 665, 138, 143 
 v. Indianapolis, etc., Co., 56 
 Ind. 20, 269, 6S9 
 
 v. Jack, 59 la. (>t ) 2. 7S9 
 
 v. Lord, 47 Ind.' 203, 300, 345 
 
 v. Philbrook, 9 Mass. 151, 61 
 
 v. Prior, 18 Ind. 4 (.0, 5S9 
 
 v. Rowly, 65 Ind. 10S, 126 
 
 v. Scottish- American Co., 107 
 Ind. 497. 268, 297, 4 iS 
 
 v. State. 70 Ind. 341, 530 
 
 v. Stiles, 6 la. 5 f, 391 
 
 v. Woodland. 28 Neb. 250, 92, [09 
 
 Pattison v. Bacon, \2 Abb. Pr. 142, 733 
 v. Shaw. 6 [nd. 377, 596 
 
 \ . Smith, 93 I nd'. 117, 81 
 
 v. Vaughan, 40 Ind. 253. 399 
 
 Patton v. Gash, 99 \. C. 28, 401 
 
 \ . ll.11 dlton, [2 Ind. 256, 561 
 
 Patrick v. Graham, 132 U. S. 627, 570 
 
 V. Jones. 2 1 Ind. 2 19, 63S 
 Patn v. Chicago, etc., Co.. 77 Wis. 
 
 21S, ' 581 
 Pavne v. First Nat. Bank, 43 Mo. 
 
 App. 377. 57i 
 
 v. Flournoy, 29 Ark. ^00. 635 
 
 v. Hardesty ( Kv.i. 1 ( S. W. 
 
 Rep, 348, " 545. 654 
 
 v. June. 92 Ind. 252. 53, 572 
 
 Peabodv v. Phelps, (jCal. 213. 
 
 v. Sw eet. 3 Ind. 5 I (. 
 
 Pearce \. i'( ttit, 85 Tenn. 724. 
 
 Pearcy v. Michigan, etc., Co.. in 
 Ind. 59, 
 
 Pearson \ . Carlton, iS S. C. 47. 
 \ . 1 >arrington, 32 Ala. 227, 
 \ . 1 (ousehold, etc.. Co., 7S Tex. 
 
 385. 
 
 v. Pearson, 125 Ind. 341, 216, 
 
 v. Pierson, 128 Ind. 479, 
 Peck v. Hoard. 87 Ind. 22 1, 
 \ . Courtis, 31 Cal. 207, 
 v. Childers, 73 Mo. 4^4. 
 v. Hensley, 51 Ind. 344, 
 v. Louisville, etc., Co., 101 Ind. 
 366, 
 
 v. Sanderson, 18 How. 42, 
 v. Sims, 120 Ind. 345, 
 v. Strauss, 33 Cal. C7S, 
 v. Vandenburg, 30 Cal. 11, 
 v. Yong, 1 How. 250, 125, 
 
 Pcdcn v. King, 30 Ind. 1S1, 724, 
 v. Mail, 1 t8 Ind. 556, 
 v. Noland,45 Ind. 354. 276, 50S, 
 Pedigo v. Grimes, 113 Ind. [48, 
 
 700, 
 Pedrick v. Post, s(lnd. 255, 
 Peed v. Brenneman, 72 Ind. 2S8, 
 
 616, 
 Peebles v. Rand, 43 N. II. 337, 
 Peele v. State. 1 is Ind. 512, 10S, 
 Peery v. Greensburgh, etc., Co., 43 
 Ind. 321, 5 62 > 6o 5. 
 
 Pegram v. Carson, iS How. Pr.519, 
 Peirce v. Higgins, ioi Ind. 178, 
 Pelham \ . Page, 6 Ark. 535. 
 Pemberton v. Johnson, 113 Ind. 538, 
 Pence v. Christman, 15 Ind. 257. 
 v. Garrison, 93 Ind. 34^, 480, 
 626, 
 v. Langdon, 99 U. S. 578, 
 v. State. 1 10 1 ml. 95, 256, 
 
 Pendergast v. Hodge, 21 Mo. App. 
 
 t3§, ' 
 Penhrvn Slate Co. v. Mever, 8 
 
 Daly. 61, 
 Penn v. Lord Baltimore, 1 Vcs. Sr. 
 
 Ill- 
 Pennington v. Nave. [5 Ind. 323, 
 
 \ . St reight, >4 [nd. 376, 
 Pennock v. McCormick, 120 Mass. 
 
 2 7S> 
 Pennsylvania, etc.. Co. v. Cook. 123 
 
 Pa. St. 170. 
 
 v. Dean. 92 Ind. 459, 
 
 III, 
 136 
 
 1 47 
 628 
 610 
 
 5 2 9 
 
 599 
 
 11b 
 
 44 r ' 
 416, 
 
 5S7 
 59° 
 6S2 
 
 id., 
 
 ■I s '' 
 788 
 
 774 
 
 .(ON 
 
 597 
 
 672 
 
 74 
 III 
 74S 
 736 
 636 
 
 536, 
 
 773 
 
 213 
 292. 
 71S 
 
 647 
 306 
 
 6 74 
 697 
 
 3-7 
 021 
 
 79 1 
 
 7 so 
 
 53 2 - 
 
 779 
 
 573 
 257 
 
 4 S 5 
 616 
 
 420 
 
 506 
 
 9 
 
 765 
 
 3°7 
 
 604
 
 TABLE OF CASES. 
 
 XCVII 
 
 [References a 
 
 Pennsylvania R. R. Co. v. First 
 German Lutheran Congregation, 
 53 Pa. St. 445, _ 26 
 
 Pennsylvania Co. v. Gallentine, 77 
 Ind. 322, 266, 279 
 
 v. Holderman, 69 Ind. iS, 1S3, 1S4, 
 
 606 
 v. Marion, 104 Ind. 339, 486, 562, 
 
 663 
 v. Nations, 11 1 Ind. 203, 791 
 
 v. Newmeyer, 2S \. E. Rep. 860, 541 
 v. Niblack, 99 Ind. 149, 187,29''. 768 
 v. Poor, 103 Ind. 553, 562. 565 
 
 v. Roonev, S9 Ind. 453, 403, 545 
 v. Roy, 102 U. S. 451. 65S, 659 
 
 v. Stegemeier, 118 Ind. 305, t,^ 
 
 v. Weddle, 100 Ind. 13S, 691 
 
 Penobscot, etc., Co. v. Weeks, 52 
 
 Me. 4.56, 667 
 
 Penrice v. Wallis, 37 Miss. 17:, 
 Pensacola v. Reese, 20 Fla. 437, 
 People v. Alpin, 86 Mich. 393, 
 v. Anderson, 44 Cal. 65, 
 v. Anthony, 25 111. App. 532, 
 
 457 
 272 
 
 578 
 623 
 
 43S, 
 
 757 
 53 1 
 
 v. Arceo, 32 Cal. 40, 
 
 v. Bachman (Cal.), 23 Pac. 
 
 Rep. 1090, 3S3 
 
 v. Barker, 60 Mich. 277, 254, 528 
 v. Beaver, 83 Cal. 419. 164, 254 
 
 v. Board, 23 111. App. 3S6, 666, 679 
 v. Board, 100 111. 495, 5S, 479 
 
 v. Board, 60 Hun. 4S6, 592 
 
 v. Boggs, 20 Cal. 432, 619 
 
 v. Bonds, 1 Nev. 33, 61S 
 
 v. Bonney, 19 Cal. 426, 538 
 
 v. Brennan, 79 Mich. 362, 239. 257 
 v. Buddensieck, 103 N. Y. 487. 538 
 v. Burns, 7S Cal. 645, 125 
 
 v. Callaghan, 4 Utah, 49, 239 
 
 v. Carnal, 6 N. Y. 463, 230 
 
 v. Carty, 77 Cal. 213, 617 
 
 v. Center, 61 Cal. 191, 7S0 
 
 v. Chalmers, 5 Utah, 201, 617 
 
 v. Chen Sing Wing, 88 Cal. 268, 
 v. Ching I ling Chang, 74 Cal. 
 
 3S9, 610 
 
 Citv of Syracuse, 7S N.Y. 56, 516 
 
 232 
 
 2>I 
 57S 
 6lO 
 
 43 6 
 
 250 
 230 
 
 '71 
 3 1 
 , District Court, etc., 14 Col. 
 
 39 6 - 439 
 
 73$ 
 
 v. Clark, 7 N. Y. 385, 
 
 v. Cline, S3 Cal. 374. 
 
 v. Coffman, 59 Mich. 1, 
 
 v. Collins. 75 Cal. 41 1, 
 
 v. Collins, 19 Wend. 56, 
 
 v. Cornetti, 92 N. Y. 85, 
 
 v. Corning, 2 Corns. (N. Y.) 9, 
 
 v. Curling, 1 Johns. 320, 
 
 v. Davidson. 30 Cal. 379, 
 
 District Court, etc., 14 Col. 
 
 Doe. 1 Mich. 451, 
 G 
 
 re to Pi 
 
 \ . Dulaney, 96 111. 503, 
 v. Durfee, 62 Mich, 
 v. Eldrige, 7 How. Pr. 10S, 
 \ . Evans, 72 Mich. 367, 
 V. Ferris. 35 X. Y. 125, 
 v. Flack, 15 Daly, 442, 
 v. Garcia. 25 Cal. 531, 
 v. Garnett, 130 111. 340, 
 v. Gaunt, 23 Cal. 156, 
 v. Genet, 59 N. Y.So, 
 v. Goldenson, 76 Cal. 32S, 
 v. Gonzales, 35 X. Y. 49, 
 v. 1 (agar, 52 Cal. 171, 147, 
 
 v. Hall, 48 Mich. 4S2, 700, 
 
 v. Hawes, 25 111. App. ^2^1. 
 v. Hawkins, 46 N. Y. 9, 
 v. Hillhouse, So Mich. 580, 
 v. Hillsdale, etc., Co., 2 Johns. 
 190, 
 v. Honeyman, 3 Den. 121, 
 v. Hoyt, 4 Utah, 247, 528, 530, 
 v. Johnson. 3S X. Y. 63, 
 v. Judge of Way ne Co., 1 Mich. 
 
 359, 
 
 v. Judges. 2 Johns. Cas. 6S, 
 
 v. Justice. 20 Wend. 663, 
 
 v. Keeler, 99 X. Y. 463, 
 
 v. Keenan, 13 Cal. 5S1, 
 
 v. Kelly, 94 X. Y. 526. 
 
 v. Kelly. 35 Hun. 295, 
 
 v. Kennedy. 57 Hun. 532, 
 
 v. Knight. 2 Caines, o s . 
 
 v. Leaton, 25 111. App. 45, [21 
 
 111. App. ( A 1 320, 
 
 v. Lee, 1 4 Cal. 510, 
 v. Leonard. 11 Johns. 504, 
 v. Livingston. 80 N. Y. 66, 
 v. Lynch. 54 N. Y. 6S1, 
 v. McKay, iS Johns. 212. 
 v. McKenna, 58 Hun. 609, 
 V. Maynard, 14 111. 419. 
 v. Mayor, etc., 32 Barb. 35, 
 v. Mathes, 4 Wend. 229, 
 v. Mellon. 40 Cal. 6 I s , 
 \. Merrill, 14 Kern (N. Y.), 74, 
 v. Millard, 53 Mich. 63, 700, 
 v. Miller. 4 Utah, 410, 
 v. Mills, 109 X. Y. 69, 
 v. Montague, 71 Mich. 447, 
 v. Muller, 96 N. Y. 40S, 
 v. Mullings, S3 Cal. 13S, 
 v. Murray, 5 Hill. 46S, 127. 
 
 v. Nash, 1 Idaho. 206, 
 v. Nelson, 85 Cal. 421, 
 \ . Nestle, 19 N. Y. 583, 
 v. Nevada. 6 Cal. 143. 
 v. Noonan, 60 1 lun. 578, 
 v. Northey, 77 Cal. 618, 469, 
 v. O'Brien, ss Cal. 483, 164, 
 v. Page, 1 Idaho. 102. 
 
 535 
 
 90 
 
 6S1 
 
 435 
 578 
 24S 
 617 
 
 704 
 
 43 s 
 612 
 
 497 
 
 43 6 
 435 
 440 
 
 3 
 
 534 
 534 
 572 
 
 7^7 
 34 
 
 3-' 
 
 43S 
 
 34 
 
 497 
 
 249 
 
 , 3 
 601 
 
 7-.7 
 
 127 
 
 57i 
 
 4*5 
 145 
 
 7V- 
 
 Dig
 
 XCV111 
 
 TABLE OF CASES. 
 
 People v. Rector, etc., 6 Abb. Pr. 
 .;;. 696, 
 
 v. Redinger, 55 Cal. 290. 
 v. Reed, Si Cal. 70, 
 v. Rensselaer, etc.. Co., 15 
 Wend. 11 v 
 v. Re\ nolds, 16 Cal. 128, 
 v. Rose. 52 Hun. 33, 
 v. Samario, S4 Cal. 48 (. 
 v. Schad, 58 Hun. 571. 
 v. Scharnweber, 119 111. 445. 
 v. Sing Lum, 61 Cal. 53S, 252, 
 v. Soy, " Cal. 102, 
 v. Stimer (Mich.), 46 N. W. 
 Rep. 28, 
 
 v. Superior Court, 5 Wend. 114, 
 
 v. Superior Ct., 19 Wend. 68, 
 
 v. Supervisors, 20 Mich. 95, 
 
 v. Swift, ^9 Mich. 529, 
 
 v. Tarbell, 17 How. Pr. R. 120, 
 
 v. Taylor, 36 Cal. 255, 
 
 v. Taylor, 34 P>arb. 481, 
 
 v. Teague, 106 N. C. 571, 
 
 v. Terrell. s8 Hun. 602, 
 
 v. Tibbitts, 19 N. V. 523, 
 
 v. Toal (Cal.), 23 Pac. Rep. 203, 
 
 v. Sackett, 14 Mich. 320, 663, 
 
 v. Tracv, 1 Denio, 617, 
 
 v. Turcott, 65 Cal. 126, 
 
 v. Von, 7S Cal. 1. 
 
 v. Waite, 70 111. 25, 
 
 v. Wallace, 89 Cal. 158, 
 
 v. Walter. 68 N. Y. 403, 
 
 v. Wheatley, 88 Cal. 114, 
 
 v. Wiley. 3 'Hill, 194. 
 
 v. Wilkinson, 60 Hun. 582, 
 
 v. Williams, 24 Cal. 31, 
 
 v. Wilson. 26 Cal. 127, 
 
 v. Wibon, 64 111. 195, 
 
 v. Wilson, 55 Mich. '506, 
 
 v. Woodside, 72 111. 407. 
 
 People's Bank v. Shyrock. 4S Md. 
 427, 
 
 People's Co. v. Babinger. 40 La. 
 Ann 2 (7. 
 
 People's Savings Bank v. Finney, 
 63 Ind.460, 117- r 54i 3 6l > 
 
 People's Savings, etc., Co. v. Spear-. 
 1 15 Ind. 297, 296. 72;. 
 
 Peoria, etc., Co. v. Walser, 22 Ind. 
 
 73. 
 Pepper v. Dunlap. 5 How. 51, 
 Peralta v. Adams. 2 Cal. 594, 
 
 v. Castro, 15 Cal. 511. 
 Perdue v. Aldridge. 19 Ind. 290. 
 Perkins v.Bakron,39 Mo. App. 331, 
 
 v. Pates, (<i Tex. 190. 
 
 v. Hurley. 64 N. H. 524, 
 
 v. Ermel. 2 Kan. 325. 
 
 v. Fourniquet, 6 How. 206, 
 
 248 
 
 7i3 
 
 28 
 73 6 
 739 
 176 
 
 787 
 623 
 
 6S1 
 
 5 2 9 
 
 66 
 
 516 
 
 435 
 61 
 
 437 
 146 
 
 573 
 64S 
 
 775 
 661 
 
 ^7 
 
 f'5 
 
 79^ 
 
 440 
 
 577 
 
 59- 
 659 
 
 7 8 / 
 
 739 
 6S0 
 112 
 
 7 
 617 
 
 66S 
 
 19- 
 30S 
 
 443 
 
 75' 
 
 6SS 
 
 499 
 440 
 
 --( 
 5-1 
 756 
 
 449 
 
 622 
 
 614 
 
 74 
 
 Ala. 
 
 127, 
 
 re to Pages.] 
 
 Perkins v. Fourniquet, 14 How. 32S, 
 v. Hayward, 124 Ind. 445, [68, 
 
 ;" s . 5 I s - ' 7! [, 
 
 v. Marrs, 15 Col. 26j, 
 Perrin v. Johnson. 16 Ind. 72, 
 Perry. Ex parte, 102 U. S. 1S3, 
 Perry v. Bailey, 12 Kan. 539, 
 \ . Burton, 126 111. 599, 
 v. Makemson, 103 Ind. 300, 
 v. Tupper, 70 N. C. 53S, 
 Perrvman v. Greenville, 51 
 
 507, 
 Persons v. Alsip, 2 Ind. 67, 
 
 v. McKibben, 5 Ind. 261, 
 Perteet v. People, 70 111. 171, 
 Peru v. Beares, q^ Ind. 576, 
 Petefish v. Watkins, 124 111. 3S4, 
 Peterman v. Ott, 45 Ind. 224, 
 Peters v. Banta, 120 Ind. 416, 266, 
 
 394- 
 v. Guthrie. 119 Ind. 44, 527. 
 
 v. Lane, 55 Ind. 391. 624,686, 
 Peterson v. Gresham, 25 Ark. 380, 
 v. Hutchison, 30 Ind. 38, 510, 
 v. Ottawa, 41 Kan. 293, 
 v. Swan, 119 N. Y. 662, 
 v. Toner. 80 Mich. 350. 
 Petrv v. Ambrosher, 100 Ind. 510, 
 Pettigrew v. Barnum, 1 1 Md. 434, 
 
 Pettis v.Johnson, 56 Ind. 139, 
 Petty v. Trustees, etc., 95 Ind. 27S, 
 Pettygrove v. Rothschild, 2 Wash. 
 
 6," 
 Peyton v. Kruger, 77 Ind. 486, 
 Pfeiffer v. Crane, S9 Ind. 4S5, 68 
 
 Pharo v.Johnson, 15 la. 560, 
 Phelan v. Boylan, 25 Wis. 679, 
 
 v. San Francisco, 9 Cal. 15, 
 Phelps v. Mayer. 15 How. 160, 
 
 v. Osgood, 34 Ind. 150, 
 
 V. Phelps. 17 Md. I20, 
 
 v. Smith, 116 Ind. 3S7, 10S, 
 
 v. Tilton, 17 Ind. 423, 7S2. 
 
 Philadelphia, City of, v. Campbell, 
 
 1 1 Phila. 162, 
 Philadelphia, etc., Co. v. Harper, 29 
 Mil. 530, 
 v. Little, 41 N. J. Eq. 519, 
 v. Shipley, 7J Md. 88, 
 v. Stimpson, 14 Pet. 44S, 
 v. Waterman, 54 Pa. St. 337, 
 Phillip v. Gallant, 62 N. Y. 2^(>. 
 Philips v. New York, etc., Co., 53 
 
 Hun. 634, 
 Philips, etc., Co. v. Seymour, 91 U. 
 S. 646, 
 
 439 
 202, 
 
 756 
 581 
 300 
 
 435 
 
 621 
 490 
 
 57- 
 496 
 
 4'5 
 596 
 568 
 
 35- 
 62 
 
 79 1 
 
 1 12 
 
 290 
 718 
 
 i„, ( 
 786 
 
 79 1 
 555 
 
 231 
 
 176 
 
 690 
 596 
 
 7«3> 
 
 739 
 509 
 
 "55 
 
 654 
 
 455 
 
 ■ 69, 
 
 229 
 
 7^7 
 3- 
 494 
 200 
 1S2 
 [92 
 37 1 . 
 713 
 786 
 
 H5 
 
 545 
 
 79 
 160 
 
 533 
 192 
 
 664 
 618 
 260
 
 TABLE OF CASES 
 
 XC1X 
 
 1 l 5 
 
 I 12 
 
 9 S 
 
 /?( t, renct s 
 
 Phillips v. Preston. 11 How. 294, 
 
 v. Shelton, 6 la. 5 15. 
 Phillippi v. McLean. 5 Mo. App. 
 
 Phil ipsburgh Bank v. Fulmer, 2 
 
 Vr. N.J.i j», 620, 621 
 
 Philpot v. Taylor, 75 111. 312, 704 
 
 Phoenix In>. Co. v. Moog, Si Ala. 
 
 v. Readinger, 28 Neb. 587, 763, 7S9 
 Physio- Medical College v. Wilkin- 
 son, s <) End. 23, 52 
 Pick v. Rubicon, etc., Co., 27 Wis. 
 
 43.3. 53 s 
 
 Pickens v. Hobbs, 42 Ind. 270, 530. 531 
 Pickering v. State, 106 Ind. 22S, 154, 
 2S5, 419, 672 
 Pico v. Cuyas, 4S Cal. 639, 497 
 
 Piedmont Mfg. Co. v. Buxton, 105 
 
 N.C.74, 64,99 
 
 Piel v. Braver, 30 Ind. 332, 295 
 
 Pierce v. Bicknell, 11 Kan. 262. 635,736 
 
 v. George, 30 Mo. App. 650, 44 
 
 v. McConnell, 7 Blackt. 170, 732 
 
 v. State, 67 Ind. 354, 529, 679 
 
 v. State, 75 Ind. tgg, 256 
 
 v. Wilson, 4S Ind. 298, 294 
 
 Pierse v. West, 29 Ind. 266, 14, 112, 
 
 Pierson v. Hart, 64 Ind. 2^4. 
 
 v. McCahill, 22 Cal. 127, 
 
 v. McCahill, 2^ Cal. 249, 
 
 11S 
 5 2 3 
 
 45 6 
 
 v. State, 9 Ind. 363, 64, 232 
 
 Piggott v. Ramev. 1 Scam. 145, 516 
 
 Pike v. Evans, 15 Johns. 210, 405, 
 
 55°' 793 
 v. Megoun, 44 Mo. 491, 58, (.79 
 
 Pinkham v. McFarland, 5 Cal. 137, 513 
 Piper v. White. 56 Pa. St. 90, 700 
 
 Pipkin v. Allen, 29 Mo. 229. 75 
 
 Picpta Bank v. Knoup, 6 Ohio, 342, 19 
 Pireaux v. Simon, 79 Wis. 392, 65S 
 
 Pitnam v. Mvrick. 16 Fla. 401, 324 
 
 Pittnam v. Wakefield (Ky.). 13 S. 
 
 W. Rep. 525, 17 
 
 Pitts v. Tilden, 2 Mass. 11S, 310 
 
 Pittsburgh, etc., Co. v. Adams, 105 
 Ind.i;t. 579 
 
 v. Board, 2S W. Va. 264, 62 
 
 v. Conway. 57 Ind. 52, 
 v. llixon, 1 10 Ind. 22 v 2SS. 491, 7^'> 
 v. Martin, ^2 Ind. 476, 520 
 
 v. Noel, 77 Ind. 110. 535,678,690 
 v. Porter, ^2 Ohio St. 328, 621 
 
 v. Probst, 30 Ohio St. 104, 769 
 
 v. Ruby, 3S Ind. 294, 470, 60 
 v. Spencer, 9S Ind. 1S6, 70S. 709 
 v. Sponier, S5 Ind. 165, 574, 7 SS 
 v. Swinny, 91 Ind. 399, 128, {50, 352 
 v. Thornburgh, 98 Ind. 201. 394 
 
 tirr to Pagi 
 
 Pitl rgh,etc, Co. v. Van Houten, 
 
 48 Ind. 90, 177 
 
 v. Williams. 74 Ind. 462, 
 Pitzer v. Indian c, Co., So 
 
 Ind. 569, 625, 686, 692, 714, 
 
 Pixlev v. Van No-tern, 100 Ind. 34, 
 Place v. Minster, 65 N. V. S9, 
 Plainfield v. Plainfield, 67 Wis. 52;, 
 Plank v. Jackson (Ind.}, 27 N . E. 
 
 Rep. 1 117, 
 Plant v. Edwards, 85 Ind. 588, 
 Platner v. Platner, 7S N. Y. 90, 
 Planter's Bank v. Neely, 7 How. 
 
 ( Miss.) So, 
 Planters Ins. Co. v. Cramer, 47 
 
 Mis-. 200, 14, 20, 
 
 Piatt v. Chicago, etc., Co., 74 la. 127 
 
 v. Continental Ins. Co., 62 Yt. 
 
 166, 666, 
 
 v. Manning, 34 Fed. Rep. S17, 
 
 Platter v. Board, 103 Ind. 360. 62, 
 
 119, 526,625, 
 
 Pleasant v. State, 15 Ark. 624, 
 
 Pleasants v.Fant, 22 Wall. 116. 416. 
 
 6 43- 
 v. Ycvav.etcCo.. 42 Ind.301. S 
 Pledger v. State, 77 Ga. 242, 
 I'leyte v. l'leyte, 15 Col. 44, 125. 
 Plummer v. Mold, 22 Minn. 1, 
 Plunkett v. Minneapolis, etc., Co., 
 
 71) Wis. 222. 
 Plymouth, City of, v. Fields, 125 
 
 Ind. :,2^ 
 Pochelu v. Catonnet, 40 La. Ann. 
 
 3 2 7. 
 Poindexter v. Greenhow,S4 \ a. 441. 
 
 v. Greenhow, 114 U. S. 270, 
 Pointer v. State, S9 Ind. 255, 
 Poland v. Miller. 95 Ind. 3S7, 
 Polin v. State. 14 Neb. 540, 
 Pomeroy v. Baddeley, Ryan & 
 
 Moody, 430, 
 Pollard v. King, 63 111. 36, 
 Pollard v. Wegener, 13 Wis. 569, 
 Pollers v. Black River, etc., Co.. 113 
 
 U. S. 81, 
 
 v. Swope. 4 Ind. 217. 
 Ponca, Yillage of, v. Crawford, iS 
 
 373 
 
 " I 
 640 
 
 4" 
 
 Neb. 
 
 ;i, 
 
 Poole v. Chicago, etc., Co., 2 Mc- 
 
 Crary. 251, 
 
 v. Fluger, 1 1 Pet. 1S5, 
 Poorman v. Mills, 43 Cal. 323. 
 Pope v. Dinsmore, 8 Abb. Pr. 429. 
 Poppenhusen v. Seeley, 41 Barb. 
 
 450. 
 Porche v. La Blanche, 12 La. Ann. 
 
 778, 
 
 45 
 
 160 
 
 .63 
 
 6S2 
 630 
 
 215, 
 
 686 
 
 480, 
 
 7"- 
 ;. 86 
 547 
 177 
 635 
 
 634 
 
 7.5S 
 
 438 
 
 672 
 
 57" 
 744 
 
 66S 
 
 700 
 620 
 
 ; 
 479 
 
 4"7 
 337 
 
 -
 
 TABLE OF CASES. 
 
 I A\ /. fences a 
 P iree's Succession. 27 La. Ann. 
 
 599 
 Port v. Russell. 36 End. DO, 759 
 
 Porter \. Brackenridg< . - Blackf. 
 
 \ . Choen, 60 Ind. 33S, 469, 623, 760, 
 
 7 s '' 
 \ . Foley, 21 How. 393, 
 \. Grimsley, 98 N. C. 550 
 v. Hollow av. 43 Ind. 35, 
 v. Parker. 6 Tex. 23, 
 v. Pierce, 120 N. Y. 217, 
 v. Purdy, 29 X. Y. 106, 
 v. Rummery, 10 Mass. 64, 
 \ . State, 2 Ind. 435, 
 
 47 
 
 4S3 
 102 
 
 334 
 103 
 286 
 13- 
 25°. 53 s - 579- 
 669 
 
 v. Throop, 47 Mich. 313. 617 
 
 v. Waltz, 10S Ind. 40, 5S0, 686 
 
 v. Western, etc., Co., 97 N. 66, 402 
 
 Portis v. State, 27 Ark. 360, 579 
 
 Portland Co. v. United States, 15 
 
 Wall. 1, 369 
 
 Portoues v. Holmes, 33 111. App. 
 
 312, 7-9 
 
 Poseyville, Town of, v. Lewis, 126 
 
 I nil. So, 7o7 
 
 Po t \ . Losey, 1 1 1 Ind. 7;. 327 
 
 v. Manhattan Ry. Co., 125 N. 
 Y.697, r 7 2 9 
 
 Poteet v. Count v Cominrs., 30 W. 
 
 Va. 58, 438, 754 
 
 Potter v. Chicago, etc., Co., 22 Wis. 
 
 615, 485 
 
 v. McCormack, 127 Ind. 439. 719 
 
 v. Merchants' ISank, 28 N. V. 
 
 641, 670 
 
 v. Owens, iS Ind. 3S3, 62S 
 
 v. Smith, 36 Ind. 231, 597 
 
 Potts v. Felton, 70 Ind. 166, 401, 789 
 
 Pouder v. Tate, 96 Ind. 330, 81 
 
 Poullain v. Poulfain, 79 Ga. 11, 7S2 
 
 Pounds v. Chatham, 96 Ind. 342. 82 
 
 Powell v. Ashlock. 21 111. App. 176, 666 
 
 v. Augusta, etc., Co., 77 Ga. 192, 739 
 
 v. Bunger, 91 Ind. 6 \, 171 
 
 v. Jopling, 2 Jones L. 400, 517 
 
 v. Powell. 104 Ind. [8, 217, 647, 668 
 
 v. State, 13 Tex. App. 244, 53S 
 
 \ . Sturtevant, 85 Ala. 243, 269 
 
 v. Waldron, 89 N. Y. 32S, 4)4 
 
 rs \. Evans, 72 Ind. 23, 775 
 
 \ . Fletcher, 84 Ind. 154, 687, 712 
 
 v.Johnson, 86 Ind. 29S, 728 
 
 V. 'Mitchell, 77 Me. 361, 740 
 
 v. Nesbit, 127 Ind. 497, 71 
 
 v. New Haven, 120 Ind. 185, 274 
 
 v. Provident Institution, 122 
 
 Ma--,. | 1 j, I90 
 
 v. State, 87 Ind. 144. 167, 247, 251, 
 
 252, 256, 368, 375, 674, 767 
 
 re to Pages.\ 
 
 Powers v. Yonkers, 114 X. Y. [45, 7^ 
 Pracht v. Whittridge, 44 Kan. 710. 7^7 
 Prat her v. Ramho, I Blackf. 189, C46, 
 
 /3 5 
 
 Pratt v. Allen, 95 Ind. 404, 251, 760 
 
 v. Burhans. 47 N. W. Rep. 1064, 345 
 
 v. Kendig, 128 111. 293, 44 
 
 v. Rice. 7 Nev. 123, 163 
 
 v. Western Stage Co., 26 la. 
 
 241, 210, 330 
 
 Pray v. Wasdell, 146 Mass. 324, 307 
 
 Pregnall v. Miller. 26 S. C. 600, 447 
 
 Prentice v. Kimball, 19 111. 319, 604 
 
 v. Rice. 2 Doug. ( Mich.) 296, 6S 
 
 Prentiss v. Paisley, 25 Fla. 927, 601 
 
 Presbury v. Com.. 9 Dana, 203, 528 
 
 President, etc., v. Hamilton, 34 
 
 Ind. 506, 592 
 
 Pressley v. Harrison. 102 Ind. 14, 217 
 
 v. Lamb, 105 Ind. 171, So 
 
 Preston v. Fryer, 38 Md. 221, 274 
 
 v. Sanford, 21 Ind. 156, 525, 678 
 
 v. Wright, 60 la. 351, 677 
 
 Preszinger v. Harness, 114 Ind. 491, 2S5 
 
 Price v. Baker, 41 Ind. 570, 150, 264 
 
 v. Brown, 98 N. Y. 3SS, 661 
 
 v. Commonwealth, 77 Ya. 393, 731 
 
 v. Johnson County, 15 Mo. 433, 577 
 
 v. State, 74 Ind. 553, 241, 243 
 
 Priddy v. Dodd. 4 Ind. 84, 296, 534,683 
 
 Pride v. Wormwood, 27 la. 257, 523 
 
 Priest v. State, 68 Ind. 569, 619 
 
 Prince v. Bates, 19 Ala. 105, 133 
 
 Princeton v. Manck, 35 Ind. 51, 62 
 
 Princeton, School Town of, v. Geb- 
 
 hart, 61 Ind. 1S7, 
 
 766 
 
 Prindle v. Campbell, 7 Mackey, 59S, 738 
 Pringle v. Leverich, 97 N. Y. 181, 657 
 Proctor v. De Camp, 83 Ind. 559, 622 
 v. Owens, 18 Ind. 21, y~\ 
 
 Prootus v. Holmes, 33 111. App. 312, 554 
 Protector. The, 11 Wall. 82, 137 
 
 Prout v. Berry, 2 Gill. (Md.) 1 17. 303 
 Providence, etc., Co. v. Goodyear, 
 
 6 Wall. 153, 96 
 
 v. Martin, 32 Md. 310, 657, 661 
 
 Providence Rubber Co. v. Good- 
 
 year, 9 Wall. 7SS, 451 
 
 Providence- Washington Ins. Co. v. 
 
 Wager, 37 Fed. Rep. 59, 20S 
 
 Provines v. Heaston, 67 Ind.4S2, 6S9 
 Pruitt v. Edinburg, etc., Co., 71 
 
 Ind. 2 1 ). 261 
 
 Pryce v. Security Ins. Co., 29 Wis. 
 
 270, 481 
 
 Pudney v. Burkhart, 62 Ind. 179. 635 
 Puett v. Beard, S6 Ind. 104, 394, 67S, 
 
 686. 689 
 Pugh v. Calloway, 10 Ohio St. 4S8, 54
 
 TABLE OF CASES. 
 
 Referent ■ - are to Pag< ■>. ] 
 
 Pulliam v. Christian, 6 How. 209, 74 
 v. Mendenhall, 1 20 I nd. 279, 626, 656 
 Pulte v. Wayne Circuit fudge, 47 
 
 Mich. 646, 325 
 
 Purdue v. Stevenson, 54 End. l6l, 393, 
 
 397 
 Purdy v. Rahl (Cal.), 21 Pac. Rep. 
 
 , 971. 3S3 
 
 Purple v. Harrington, 119 Ind. 164, 637 
 Tut nam v. Boyer, 140 Mass. 235, 20S. 
 
 3 l8 »449 
 
 v. Hannibal, etc., Co., 22 Mo. 
 
 App. 589, 789 
 
 v. Lewis, 1 Fla. 455. 7; 
 
 v. Tennyson, ;o Ind. 456, 56 j 
 
 v. Wise! 1 Hill, 234, 587 
 
 Pyles v. Adams, 97 Ind. 605, 229 
 
 a 
 
 Qualter v. State, 120 Ind. 92, 103, 2^5 
 (Juan Wo Chung v. Laumeister, 83 
 
 Cal. 384, 439, 496 
 
 Quarl v. Abbett, 102 Ind. 2^3, 146, 
 
 148,154,285,418 
 Quebec Bank v. Carroll (S. 1).), 44 
 
 X. W. Rep. 723. 65 
 
 Queen v. Buckinghamshire, El. & 
 B.260, 128 
 
 v. Charlesworth, 1 B. & S. 460, 541 
 v. Eastern Counties Ry. Co., 
 10 Ad. .V El. 531, 433 
 
 v. Hepburn, 7 Cranch. 290, 527 
 
 v. Martin L. R., 1 Cr. C. Res. 
 
 3 " S ' T • , ^ 539 
 
 v. Liverpool, 15 Q^B. (X. S.) 
 
 1070, 12S 
 
 v. Lord's Commr's, etc., 10 A. 
 
 & E. 179, 435 
 
 v. Lord Stewart ot Old Manor 
 
 Hall, 10 A. & E. 24S, 435 
 
 Queen Ins. Co. v. Studebaker, etc., 
 
 Co., 117 Ind. 416, 279, 391, 738 
 
 Quick v. Brenner, 101 Ind. 230. -74,712 
 
 v. State, 73 Ind. 1 17. 241 
 
 Quill v. Gallivan, 108 Ind. 235, 296, 
 
 595, 716, 751, 768 
 
 Quimbv v. Bovd, S Col. 194, 637 
 
 v. Bovd, [28 U. S. p\ 41S 
 
 v. Hopping (N. 1. . 19 Atl. 
 
 Rep. 193, 7 S 
 
 v. Hopping, 52 N.J. L. 117. 46 
 
 Quirk v. Clark, 7 Mont. 31, 636 
 
 R 
 
 Rabb v. Graham, 43 Ind. 1, 131, 360 
 
 Rabun County v. 1 labersham Coun- 
 ty, 79 Ga. 248, |i8 
 Racer v. Baker, 113 Ind. 177, 
 
 Radcliffv. Radford,96 Ind. ^2, 6 (t 
 Rade, In re, 9 N. Y. Supp. 812, 1 5 
 
 Radford v. Folsom, 125 I . S. 725, 9: 
 Ragan v. Cuyler, 24 Ga. 397, (96 
 
 v. Haynes, 10 Ind. 3 (S. ( j.. 
 
 Ragsdale v. Matthew-. 93 Ind. 5S9, 791 
 Rahm v. Deig, 121 In'd. 2S3, 211 
 Railton v. Gander, 12'. Ill, . 
 Railroad Co. v. Bradlevs, 7 Wall. 
 575, 
 v. Fraloff, 100 U. S. 24, 416, 645 
 v. Gibbes, 24 So. Car. 60, 410 
 
 v. Harris, 7 Wall. ^74, 337 
 
 v. Howard, 7 Wall. 392, 6ot 
 
 v.Johnson, 15 Wall. 8, 132 
 
 v. Koontz, 104 U. S. 5, 631 
 
 v. Mississippi, 102 U. S. 135, 631 
 v. Morey, 47 Ohio St. 207, 030 
 
 \ . Pratt. 22 Wall. 123. 57 ; 
 
 v. Schute, 100 U. S. 644, 341, 342 
 v. Swasey, 2^ Wall. 405, 68 
 
 v. Winslow, 66 111. 219, 657 
 
 Railsback v. Greve, 49 Ind. 271, $]7 
 
 v. Greve, 5S Ind. 72, 307, 312 
 
 v. Walke, Si Ind. 409, 167. 696 
 
 Railway Co., Ex parte, 103 U. S. 
 
 794< 
 Railway Co., Ex parte, 101 U. S 
 
 7"> 43 : 
 
 Railway Co. v. McCarthy, 96 U. S 
 
 258, 
 Rainey v. State, 53 Ind. 27S, 
 Rainforth v. People, 61 111. 365, 
 Rafif v. Baldwin, 29 Ind. 16, 
 Ralston v. Moore. 105 Ind. 243, 562. 703 
 Ramsey v. Bush, 27 la. 17, 
 Randall's Case. 2 Mod.3oS, 272 
 
 Randall v. Hunter. 69 Cal. So, 122 
 
 Randies v. Randies, 63 Ind. 93, ^24 
 
 v. Randies, 67 Ind. 434, 33* 
 Randleman, etc., Co. v. Simmon;. 
 
 07 N. C. 89, 
 Randolph, Ex parte, 2 Brock. 447, 9. 2S 
 Randolph v. Hahn, 33 S. C.609, 446 
 v. Lampkin (Kv.), 14 S. W. 
 
 Rep. 538, ' ' 7S7 
 
 v. Mauck, 7S Mo. 40S, 9I 
 
 Random v. Toby. 11 How. 493, 2^2 
 
 Rankin v. Central, etc., Co., 73 Cal. 
 
 96, 114 
 
 Ransom v. Henderson. 114 111. ;2S, 271 
 Ranv v. Governor, 4 Blackf. 2, :^( 
 
 Rapp v. Kester, 125 Ind. 70. I 6 
 
 v. Reehling, 122 Ind. 255, 
 Rardin \. Walpole, j8 Ind. 146, 204, 751 
 Rariden v. Rariden (Ind.), 28 X. E. 
 
 Rep. 701. 
 Rasor \. Quals, 4 Blackf. 2S6, 
 Rater v. State. 49 Ind. 507, 
 Rathburn v. Wheeler. 29 Ind. 60I, 748 
 
 439 
 439 
 
 1 28 
 
 79- 
 619 
 2S1
 
 I 
 
 TABLE OF CASES 
 
 [References a 
 
 Ratliffv. Baldwin. 29 Ind. 16, 179 
 
 \ . Stretch, 117 Ind. 526, 
 
 Ratliffe v. Huntly. 5 Ired. L. 545, 701 
 Rauber v. Sundback (S. Dak.), 46 
 
 N. W. Rep. 927, 643 
 
 Rauck v. Stale. 110 Ind. 3S4. 255 
 
 Rawlins v. Fuller, 31 Ind. 255, 597 
 
 Rawson v. Adams, 17 Johns. 130, 134 
 
 Rav \. Detchon, 79 Ind. 56, 279 
 
 \ . Dunn, 3S Ind. 230, 480 
 
 \. Law. 3 Cranch. 179. 134 
 
 \. Northup. 55 Wis. 39 r >, 519 
 
 v. Rav. 1 Idaho (X. S.), 705, 326 
 
 v. Rowley, 1 Hun. 614. (72 
 
 v. Thompson, 26 Mo. App. 431, 790 
 
 Rayle v. Indianapolis, etc., Co.. 40- 
 
 Ind. 347, S7 
 Raymond v. Butterworth, 139 Mass. 
 471. 27 1 
 v. Richmond, 76 N. Y. 106, 210,44s 
 v. Simonson, 4 Blackt. 77, 5S9 
 v. Thexton, 7 Mont. 299, 7S9 
 Rea v. Missouri, 17 Wall. 532. 536 
 v. Scully, 76 la. 343, 610 
 Read v. Cambridge. 124 Mass. 567, 619 
 v. Gooding, 20 Fla. 773, 65 
 v. Nichols, 11S N. Y. 224. 747 
 Ready v. Shamokin, 137 Pa. St. 92, 544 
 Reagan v. Copeland, 7S Tex. 551, 265 
 R eal Del Monte, etc., Co. v. Thomp- 
 son, 22 Cal. 542, 663 
 Reams v. State, 23 Ind. m, 40S 
 Record v. Ketcham, 76 Ind. 4S2, 524 
 Rector v. Rotton, 3 Neb. 171. 73 
 Reddington v. Hamilton, S Blackf. 
 
 62, 665 
 Redelsheimer v. Miller, 107 Ind. 
 
 485, 707 
 
 Redinbo v. Fretz, 99 Ind. 45S, 163. 693 
 
 Redman v. State. 28 Ind. 205, 533, 534 
 
 v.Taylor, 3 Ind. 144. 524 
 
 Red River, etc., Bank v. Freeman 
 
 (S. D.), 46 N. W. Rep. 36. 65 
 
 Reed v. Bagley, 24 Neb. 23-, 66S 
 
 v. Cates, 11 Col. 527. 630 
 v. Chicago, etc.. Co., 71 Wis. 
 
 399> 5 lS 
 
 v. Creditors, 37 La. Ann. 907, 20^- 
 v. Dongan, 54 Ind. 306, 562 
 
 v. Firtton, 63 Ind. 2SS, 599, 601 
 
 v. Garr, 59 Ind. 299. 599 
 
 \. Higgins,'86 Ind. 143, 68) 
 
 v. Hubbard, 1 Gr. (la.) 153. 770 
 
 v. Reed, 44 Ind. 429, 64, 229 
 
 \. Sering, 7 Blackf! 135 45, 50 
 
 v. Spayde, 56 Ind. 394, 2S9. 7^; 
 
 v. Vaughan, 15 M<>. 137. 421 
 
 v. Worland, 64 Ind. 216, 7" 
 
 Reeder v. Lander. 7 Bush. 598, 
 
 v. Machen, 57 Md. 56, 79 
 
 re to Pagi v 
 
 v. Maranda, 55 Ind. 239, 
 
 v. Maranda, 66 Ind. 4^5, 413, 
 
 v. Sayre, 70 N. Y. iSo, 
 Rees v. City, 19 Wall. 107, 
 Reese v. Beck, 9 Ind. 23S, 69, 229. 
 
 v. Smith, 95 N. Y. 645, 
 
 v. State, S Ind 416, 
 Reeves v. Andrews, 7 Ind. 207, 
 
 v. Plough, 41 Ind. 204, 624, 64S. 
 Regan v. McMahan, 43 Cal. 626, 
 Regenstein v. Pearlstein, 30 S. C. 
 
 192, 
 Regina v. Bertrand, 10 Cox C. C. 
 61S, 
 
 v. Murphy L. R.. 2 O^C. 535, 
 Reid v. Houston, 49 Ind. 1S1, 171, 
 
 v. Morton, 119 111. 11S, 
 Reilev v. Burton, 71 Ind. 11S, 
 Reilly v. Bader, 46 Minn. 212, 
 Reineke v. Wur^ler, 77 Ind. 468, 
 Reinhold v. State (Ind.), 30 N. E. 
 
 Rep. 306, 
 Reitan v. Goebel, 35 Minn. 384, 
 Reitz v. State, 33 Ind. 187, 
 Remington v. Bailey, 13 Wis. 332, 
 Removal Cases, 100 U. S. 457, 
 Rencher v. Anderson, 93 N. C. 105 
 
 v. Anderson, 95 N. C. 20S, 
 Renihan v. Wright, 125 Ind. 536, 
 Renn v. Samos, 42 Tex. 104, 
 Renner v. Ross, m Ind. 269, 
 Rennick v. Chandler, 59 Ind. 354, 
 
 Repath v. Walker, 13 Col. 109, 
 Republic Life Ins. Co. v. Swigert, 
 
 (111.), 25 N. E. Rep.6So, 
 Resolutions, Irrigation. In re, 9 
 
 Col. 620, 
 Resolutions, Senate, In re, 21 Pac. 
 
 Rep. 470; 9 Col. 623, 
 Respublica v. Clarkson, 1 Yeates 
 
 (2d), 4 6, 
 
 Rettig v. Newman, 99 Ind. 424, 
 Reubel v. Preston, 5 East. 291, 
 Reynes v. Dumont, 130 U. S.354. 
 Reynolds v. Baldwin, 93 Ind. 57, 
 
 Reynolds v. Copeland, 71 Ind. 422, 
 v. Harris, 14 Cal. 667, 
 v. Hennesy (R. I.), 20 
 Rep. 307. 
 
 v. Hosmer, 45 Cal. 616, 
 
 v. Lamsburv. 6 Hill. 534, 
 
 v. Rogers, 5 Ohio. 171, 
 
 v. Stansbury, 20 Ohio, 244. 
 
 v. State, 61 Ind. 392, 21; 
 
 v. State. 27 Neb. 90, 
 
 v. Sutlift. 71 la. 549, 
 
 v. United States, 9S L*. S. 145 
 
 495 • 
 Atl. 
 
 406, 
 
 118 
 
 505 
 
 5-i 
 
 5 
 
 444 
 
 146 
 
 63 
 3'- 
 782 
 109 
 
 5^0 
 
 231 
 
 231 
 17-. 
 201 
 178 
 192 
 619 
 774 
 
 662 
 3>- 
 533 
 65S 
 
 72 
 , 8 
 681 
 604 
 
 79 
 114 
 
 75. 
 687 
 620 
 
 550 
 
 4- 5 
 
 435 
 5-4 
 286 
 412 
 616, 
 640 
 588 
 497 
 
 143 
 
 495 
 702 
 
 50S 
 670 
 59 2 
 
 545 
 
 2^1
 
 TABLE OF CASES. 
 
 [References art to P 
 
 7 
 
 l 15 
 
 Rex v. Congers, 8 (^ B. 981, 
 
 v.Justices "!' Monmouth, 
 Dowl. & R\ . 334, 
 
 v. Mansbey, 6 T. R. 1 [9, 
 
 v. Peters, "1 Burr. 568, 
 
 v. Wilkes, 4 Burr. 2527, 5 
 
 v. Young, 1 Burr. 556, 
 Rhine v. Morris, 96 liul. 81, 
 Rhode Island v. Massachusetts, u 
 Pet. 657. 9 
 
 v. Massachusetts, 13 Pet. 23, 
 Rhoades v. Delaney, 50 Ind. 46S, 
 Rhodes v. Green, 36 Ind. 7. 535, 
 
 v. Mummery, 48 Ind. 216, 
 
 v. Piper. 4 j Ind. 474, 
 
 v. Russell. 32 S. C.5S5, 
 
 V. State. [20 Ind. 1S9, 64S, 530 
 
 Rhyne v. Guevara, 67 Miss. 139. 56 
 
 Rials v. Powell (Ga.), 9 S. E. Rep. 
 61 -z. 
 
 5 12 
 
 5»3 
 5 1 - 
 7-43- 765 
 
 r, 33 
 156 
 536 
 401 
 
 174 
 646 
 
 615 
 5S9 
 7> 709 
 677 
 33 
 580 
 
 314 
 
 Rice v. Boyer, 10S Ind. 472, 
 
 v. City of Evansville, 108 Ind 
 
 v. Cunningham, 29 Cal. 492, 
 
 v. Hall, 21 111. App. 288, 
 
 v. Rice, 6 Ind. 100, 
 
 v. Rice, 13 liul. 5<>2, 
 
 v. State, 7 Ind. 332, 
 
 v. State. [6 Ind. 298, 
 
 v. State, 3 Tex. App. 451, 
 
 v. Turner, 72 Ind. 559, 
 
 Rich v. Starbuck, 45 Ind. 310, 
 
 Richev v. Bly, 115 Ind. 232, 
 
 Richie v. State, 59 Ind. 121, 
 
 Richards v. Bestor. 90 Ala. 3^2, 
 v. Nixon, 20 Pa. St. 19, 
 v. Lake Shore, etc., Co., 25 111. 
 A PP- 344. 124 HI. 516, 
 
 Richardson v. Denison, 1 Aik. (Vt.) 
 210. 
 
 v. Green, 130 U. S. 104, 124. 154 
 
 v. Houk, 45 Ind. 451, 70, 2^7. 72s. 
 
 761 
 
 v. Jones, r8 Ind. 240. 
 
 V. Pate. 93 Ind. 423, 
 
 v. Richardson, S2 Mich. 305, 
 
 v. Richardson, S3 Mich. 653, 
 
 v. Rogers, 37 Minn. 461, 
 
 v. Seybold, 76 Ind. 5S, 
 
 v. Snider, 72 Ind. 42^. 
 
 v. State, 55 Ind. 381, 
 
 v. St. Joseph Iron Co., 5 
 Blackf. 146, 675, 
 
 v. Weare, 62 N. H. So, 
 
 v. Woodring, 74 la. 149, 
 Richmond v. Atkinson, 58 Mich. 
 413. 
 
 v. Tallmage, 16 Johns. 307, 
 Richmond, City of, v. Davis, 103 
 Ind. 449, 5 i- 
 
 5-7 
 572 
 287, 728 
 169, 37S 
 404 
 7S6 
 
 733 
 616 
 
 76s 
 
 603 
 150 
 
 34o 
 
 3 l S 
 
 97 
 
 -79 
 
 374 
 
 683 
 624 
 
 401 
 
 53S 
 638 
 
 Richmond Streel Rj . Co. v. Reed. 
 
 83 Ind. 9, 
 Richter \ . Koster, \- Ind 783 
 
 Rickard v . State. 7 j hid. 27;. 
 Ricker v. Powell, too U. S. 104, 
 Ricketts \. Dorrell, 55 Ind. 470, 215 
 
 \. I >orrell, 59 Ind. 427. 
 
 v. J [arvey, [06 I nd 
 
 v. Spraker, 77 Ind. 371, 285. 517, 
 
 590,591 
 
 Ricketson v. Compton, 23 Cal. 636, 114 
 
 Ridabock v. Levy, 8 Paige, 197, 315 
 
 Ridenhour v. Kansas City, etc., Co., 
 
 102 Mo. 270, 628 
 
 Ridenour v. Beekman, 68 Ind. 236, 154, 
 
 2 9-- 3 6l > 443- 7*8 
 
 v. Miller, 83 Ind. 20S, 293. 718 
 
 v. Wherritt, 30 Ind. 485, 601 
 
 Ridgeway v. Dearinger, 42 Ind. 157, 393 
 
 Ridgway v. Ewbank, 2 Moody & 
 
 Rob. 217, 615 
 
 Rield v. Evansville Foundry, 104 
 
 Ind. 70, 397, 398, 405, 550 
 
 Rielay v. Whitcher, is End. 458, 
 Rigg v. Parsons, 29 W. Va. ^22, pi 
 
 Riggenberg v. Hartinan, 102 Ind. 
 , 387, 533 
 
 Rigler v. Rigler, 120 Ind. 431. 1 ; s . 
 
 287, 728 
 Riggs v. Johnson County. 6 Wall. 
 166, 12. 440 
 
 v. Sterling. 60 Mich. 643, 536 
 
 v. Wilson, 30 So. Car. 172. 610 
 
 Rigsbee v. Bowles, 17 Ind. 167, 
 Rikoffv. Brown, etc., Co., 6S Ind. 
 
 3SS, 47,, 
 
 Riley v. Mitchell. 38 Minn. 9. 3117 
 
 v. Murray, S End. 35 |., 21 
 v. Schavt acker, 50 I nd. -■ 
 v. State. 88 Ala.' 1 
 v. State, 95 Ind. 446, 25 | 
 
 v. Watson, ib Ind. 21 16, 6S9 
 
 v. Waugh, 8 Cush. 220, 346 
 
 Rinehart v. Bowen, 44 Ind. 353, 85, 757 
 v. Vail, 103 Ind. 159. 219. 222, 22;. 
 
 2 2' >. 2 28 
 
 Ring v. Mississippi River Bridge 
 
 Co., 57 Mo. 496, 311 
 
 Ringenberger v. Hartman, 124 Ind. 
 
 [86, 265, 345, 7SC 
 
 Ringle \ . Bicknell, 32 Ind. 369, 637, 1 ^ 
 v. hirst Nat. Bank, 107 Ind. 425, 790 
 Rinker v. Bissell, 90 Ind. 37;. 597 
 
 Rio Grande, The. 19 Wall. 178, 50, 79 
 Rising Sun. etc., Co. v. Conway, 7 
 
 Ind. 1S7. 689 
 
 Risser v. 1 loyt, 53 Mich. i s ;. 
 Ritch v. Eichelberger, 13 Fla. 1 
 Ritchmyer v. Ritchmyer, 50 Barb. 
 
 55)
 
 CIV 
 
 TABLE OF CASKS. 
 
 R( ferences are to Pages.] 
 
 Rivers v. Olmstead, 66 la. 1S6, 
 
 Roanoke v. Karn, So Va. 34 s 
 
 Roback v. Powell, 56 End. 515, 404, 405 
 
 Robb v. Ankeny, 4 Watts. & S. 128, 673 
 
 Roberts. Ex parte, 15 Wall. 384, 439 
 
 v. Abbott, 127 Ind. 83, 595- '"'» 
 
 v. Cooper, 20 1 low . \'\- 49- 
 
 v. Evan y8o, 587 
 
 v. Graham, 6 Wall. 578, 398, 405, 
 
 v. Johnstown Bank, 
 576, ' 
 
 60 Hun. 
 
 79? 
 
 v. Lindley, 121 Ind. 56, 19,4751 7 lS 
 
 572 
 
 769 
 
 39.? 
 6S8 
 
 674 
 691 
 
 54i 
 111 
 
 -73' 
 SS6 
 
 v. Nodwift, S Ind. 339. 
 v. Ogdensburg, etc., Co., 2t 
 Hun. 
 v. Parrish, 17 Ore. 5S3, 
 v. Porter, 78 Ind. 130, 
 v. Smith. 34 Ind. 550, 
 v. State. 14 Ga. S, 
 V. State. S3 Ga". 166, 
 v. State, ill Ind. 340. 
 v. Taylor. 4 Port (Ala.). 4:1. 
 Robertson v. Caldwell, 9 Ind. 514. 
 
 545 . 
 
 v. Cease, 97 U. S. 646, 354, 47S 
 
 v. Davidson, 14 Minn. 554, 462 
 
 v. Davis. 14 Minn. 554, 335 
 
 Robertson v. Edelhoff, 132 I'. S. 614, 643 
 
 v. Garshwiler, 81 Ind. 463, 732, 781 
 
 v. Huffman, 92 Ind. 247, 504 
 
 v. Huffman, 101 Ind. 474. 480 
 
 v. O'Riley, 14 Col. 441, 
 
 v. Smith, 109 Intl. 71), 218, 392, 
 
 v. Smith (Ind.). 2S \. E. Rep. 
 
 8 S7) 306, 
 
 v. State. 109 Intl. ;«). 5, 1 }. 122, 
 
 v. Van Cleave (Ind.), 26 N.E. 
 
 Rep. S99, 
 
 Robbins v. Alton, etc., Co., 12 Mo. 
 
 3S0, 
 
 v. Magee, 96 Ind. 174, 
 v. Neal, 10 la. 560, 
 v. Spencer, 121 Ind. 594, 
 Robinson, Ex parte. [9 Wall 
 Robinson v. Anderson, 106 Ind. 1^2, 7^7. 
 
 758 
 v. Brown. 7 ( I ml. 365, 
 v. Bank, iS Ga. 65, 
 v. Board, 37 Ind. 332. 
 v. Ferry, 1 1 Conn. |' ". 
 v. Johnson, 61 Ind. 535, 
 v. Keith, 2; [a. 321, 
 v. Magarity, 2S 111. 423, 
 v. Oceanic, etc., Co., 112 N. Y 
 
 3 x 5i 
 
 v. Rippey, 1 1 1 Ind. 1 12, 
 
 V. Robert-, 16 Fla. I56, 
 v. Shanks, 1 [8 [nd. 1 :;. 
 v. Shatzley, 75 Ind. ^61 , 
 
 -7b 
 
 «K, 
 
 700, 
 
 757. 
 
 26: 
 
 149 
 
 444 
 
 307 
 735 
 
 781 
 
 7S8 
 296 
 
 OS j 
 615 
 
 7 
 
 146 
 127 
 1 1 1 
 701 
 
 75S 
 411 
 
 134 
 
 444 
 
 6"!0 
 
 304 
 
 56S, 610 
 
 419 
 
 567, 
 748 
 
 703 
 
 7'7 
 734 
 
 789 
 
 775 
 480 
 
 357 
 7S6 
 
 1 So 
 
 79 
 
 78S 
 
 467 
 
 2S6 
 
 780 
 
 76 
 
 176 
 
 54 
 670 
 
 611 
 670 
 J 79 
 5 2 
 647 
 
 479 
 
 5S 
 
 691 
 
 746, 
 762 
 
 v. Maxwell, 4 Ind. 243, 301 
 
 v. Overton, S7 Ind. 410, 2S2, 582 
 
 v. Rogers, 78 Ga. 6SS, 297 
 
 v. Rogers, 46 Ind. 1, 7^4 
 
 v. Rogers, 14 Wend. 131, 737 
 
 v. Smith. 17 Ind. 323, 635 
 
 v. Union, etc., Co., in Ind. 343, 32. 
 
 -15. -74, S3 2 
 
 v. Weil. 12 Wis. 664, 4S6 
 
 Rohlring v. Lightbody, 36 Kan. 500, 612 
 
 Rohn v. Harris, ^1 111. App. 26, 
 
 Rolf v. Pillond, 16 Neb. 21, 
 
 Rolfe v. Rumford, 66 Me. 564. 
 
 Rollins v. State, 62 Ind. 46, 570, 
 
 Robinson v. Snyder, 74 Ind. no, 
 
 603, 712, 724, 
 v. State, 1 Lea. 673. 
 v. Suter. 15 Mo. App. 599, 
 Robinius v. Lister, 30 Ind. 142, 
 Robinson, etc., Works v. Chandler, 
 
 56 Ind. 575, 
 Roblin v. Gagy, 35 111. App. 537, 
 Rohv v. Pipher, tog Ind. 345, 
 Rochester v. Levering, 104 Ind. ;'.j. 
 Rochester. School Town of, v. 
 
 Shaw, 100 Ind. <>^-. 
 
 Rockland Water Co. v. Pillsbury, 
 
 60 Me. 420, 
 Rodd v. Heartt, 17 Wall. 354, 
 Rodefer v. Fletcher, 89 Ind. 563, 
 Rodenwald v. Edwards, 77 Ind. 221, 
 Roderigras v. East River, etc., Co., 
 
 63 X. V. 460, 
 Rodgers v. Hoenig, 46 Wis. 361, 
 
 v. Russell, I I Neb. 361, 
 
 Rodman v. Harvey, 102 N. C. 1, 
 
 v. Nathan, 45 Mich. 607, 
 
 v. Rodman, 54 Ind. 444, 
 
 Roe v. Kansas City, etc., Co., 100 
 
 Mo. 190, 
 Rogan v. Haynes, 10 I1UI.34S, 
 Rogers v. Abbott, 37 Ind. 138, 
 v. Beach, 1 15 Ind. 413, 
 v. Beauchamp, 102 Ind. 33, 
 v. Gooding, 2 Mass. 475, 
 v. Goodwin, 2 Man. 475, 
 v. Leyden, 127 Ind. 50, 
 v. The Marshall, 1 Wall. 644, 
 
 Roloson v. Herr, 14 Ind. 539, 
 Roman v. Meyer, 84 Ind. 390, 
 Romaine v. State, 7 Ind. 63, 
 
 v. Craelle, So Cal. 626, 
 Rooke's Case. 3 Coke Rep. 100 a, 
 Rooney v. Milwaukee, etc., Co., 65 
 Wis. 397, 658, 
 
 Root v. Stevenson, 24 Ind. 115, 
 Roots v. Tyner, 10 Ind. S7/ 
 
 444 
 614 
 
 623 
 578, 
 690 
 
 75S 
 
 571 
 250 
 109 
 
 5" 
 
 659 
 589 
 691
 
 TABLE OF CASES. 
 
 CV 
 
 A". / 
 Rorcr Iron Work> v. Tl >ut, 83 Ya. 
 
 610 
 
 397. 
 Rosa v. Prather, [03 [nd, 191 
 Rose v. Allison, \i [nd. 276, 
 v. Baker, 99 N. C. 323, 
 v. Comstock, 17 Ind. 1, 
 v. Duncan. 43 Ind. 51 J, 
 v. Garrett, gi Mo. 65, 
 v. Tyrrell, 25 Wis. 
 Rosenbaum v. McThomas, 34 Ind 
 33 1 1 
 
 10S 
 378 
 '3 2 
 
 687, 748 
 9 2 
 
 79° 
 
 Rosenberg v. Frank. 58 Cal. 387, 
 Rosenfield v. Condict, <\ \ Tex 
 
 v. Goldsmith (Ky.), 12 S. W. 
 Rep. 928, 
 Rosenthal v. Chisum, 1 N. M. 637, 
 Rosenweig v. Frazer, S2 Ind. 342. 
 Ross v. Citizens' Ins. Co., 7 Mo. 
 App. 575. 
 
 v. Davis, 97 Ind. 79, 
 
 v. McGowen, 5S Tex. 603, 
 
 v. Murphy, 55 Mo. 372, 
 
 v. Swiggett, [6 Ind. 433, 
 
 v. Thompson, 7S Ind. 90, 
 Ri isser v. Barnes, 16 Ind. 502, 
 
 v. McColly, 9 Ind. 587, 
 Rotach v. McCarty, 102 Ind. 461 
 Rotan v. Stoeber. Si Ind. 14^, 
 Roth v. Palmer, 27 Barb. 652, 
 Rothrock v. Perkinson, 61 Ind. 39, 167, 
 
 615 
 Roulain v. McDowall, 1 Bay. 490, 310 
 Round v. State, 14 Ind. 493, 281, 66:;, 
 
 767, 769 
 Roush v. Emerick, So Ind. 551, 403 
 
 Rousseau v. Corey, 62 Ind. 250, 203, 777 
 
 4S1 
 7V 
 7§S 
 
 4'4 
 
 26 
 
 469 
 
 6 
 
 3 12 
 561 
 
 5S0 
 
 534 
 268 
 
 5 6 9 
 587 
 
 60S 
 
 7'") 
 370 
 
 611 
 
 626 
 
 599 
 124 
 
 |68, 379 
 
 Rout v. King, 103 Ind. , 
 
 v. Ninde, in Ind. 597, S, 533 
 v. Woods, 67 Ind. 319, 
 
 Routh v. Agricultural Bank, 12 S 
 
 & M. 161, 
 Rowe v. Beckett, 30 Ind. 154, 21^ 
 
 v. Peabody, 102 [nd. iw s . 
 Rowell v. Klein. 44 Ind. 290, 
 Roy v. Haviland, 12 Ind. 364, 
 
 v. Roue. 90 Ind. 54, 
 
 v. State. 58 Ind. 378, 
 
 v. Union, etc., Co. (Wyo.), 26 
 Pac. Rep. 996, 5 (.6, 654, 761 
 
 Rozier v. Williams, 92 111. 1S7, ioS 
 
 Rubey v. Shaw, 51 Mo. 116, 64 
 
 Rubush v. State. 112 Ind. 107, 408, 668 
 Ruch v. Biery, no Ind. 444. 226 
 
 Ruckman v. Allwood, 41 111. 1S4, 349 
 
 v. Demarest, no U. S. 400, 11^ 
 Rudd v. Wooltolk, 4 Bush. 555, 291 
 Ruddell v. Tyner, s 7 Ind. 529, 640, 64^ 
 Rudolph v. Vanderlen,92 Ind. J4, 622 
 RutY v. Ruff, 85 Ind. 431, 640 
 
 <//-. t,> Pages.} 
 Ruffing v. Tilton, 12 Inn. ; 
 
 Ruffner v. Hill, 31 W. Va 
 Ruger v. Burgan, 10 Ind. 451, 
 Rule v. Gumaer(Col.),2i Pac. Rep. 
 
 905, 
 Rumsey, etc., Co. v. Baker. 33 Mo. 
 
 App." 239, 
 Rundell v. Kalbfus, 125 Pa. St. 123, 
 Rundles v. J [nd. 35, 27'.. 
 
 Runnels v. kavlor. 95 Ind. 50 5, 
 Runnells v. Moffat, 73 Mich.' iSS, 
 Runnion v. Crane. 4 Blackf. )• 
 Runyon v. Bennett. 4 Dana. 598, 
 
 v. Hale. 10 Ark. 476, 
 Rupert v. Martz, Ii6 Ind. 72. 
 Ruschaupt v. Carpenter. 63 Ind. 
 
 359- 207,213,315,317, 
 
 Rush v. Gray, 74 Ind. 231, 220. 
 
 v. French. 1 Ariz. 99, 729. 738, 
 
 v.Thompson, 112 Ind. [58, 
 
 53' ■ 
 Rushteldt v. Shave. 37 Minn. 282, 
 Rushville Gas Co. v. Rushville, 121 
 
 Ind. 206, 
 Russell v. Bartlett, 9 Wis. 556, 
 v. Branham. 8 Blackf. 277. 
 v. Clark. 7 Cranch. I 1 1, 
 v. Harrison, 49 Ind. 97, 
 v. Lathrop, 122 Mass. 300, 
 v. Loring, 3 Allen. 121, 
 v. Nail, 79 Tex. 664, 
 v. Rosenbaum, 24 Neb. j 
 Rutherford v. Fisher. 4 Dall. 22. 
 Ryan v. Bindley. 1 Wall. 66, 
 v. Burkam. 42 Ind. 507, 
 v. Couch, 66 Ala. 244. 
 v. Hurley, 1 19 Ind. 1 15, 
 
 86 
 
 iSi 
 
 77- 
 520 
 
 334 
 
 2S2 
 
 33o 
 
 v. Kock, 1 7 Wall. 19, 
 v. Rockford Ins. *. 
 611, 
 Ryman v. Clark. 4 Blackf. 520. 
 Ryman v. Crawford, 86 Ind. 2<> 
 
 266, 
 Wis. 
 
 75°. 
 
 S. S. Osborne. The. 105 U. S. 447, 
 Sacramento Savings Bank v. Spen- 
 cer, 53 Cal. 737, 
 Sadler v. Sadler. [6 Ark. 628, 
 
 er \ . Wynn, ^s Ind - 
 Sage v. Brown, 34 Ind. 464, 
 
 v. Central R. Co., 03 U. S. 412, 
 
 ■ . [( \\ a, 1 v.. Co., 93 U. S. 412, 
 v. Railroad Co., > 1" I S. 712. 
 v. State. 127 [nd. 1 5. 529, 578, 
 Salander v. Lockwood, 66 Ind. 2s;. 
 
 740 
 
 404. 
 60S 
 
 266 
 
 3 2 5 
 
 73o 
 604 
 
 6S 
 
 792 
 
 4 12 
 
 73 
 
 51 
 
 625 
 101 
 57o, 
 765 
 
 208 
 
 672 
 
 337 
 116
 
 CV1 
 
 TABLE OF CASES. 
 
 ^oS, 
 (U. 
 
 62, 
 
 69.7 
 
 Saline Co.. In re. 45 Mo. 52, 
 Salisbury v. Howe, S7 N. V. 128, 
 
 v. Bartleson, 39 Minn. , 
 Saltes v. Butler, 27 X. V. 1 
 Salmon v. Pierson, S Md. 297. 
 Saltsburg Gas Co. v. Borough, etc., 
 
 1 ;S Pa. St. 250, 
 Saltmarsh v. Tuthill, 12 How. 387, 
 Sammons v. Newman, 27 Ind. 
 Sample v. State, 104 Ind. 2S9, 
 Sampson v. Welsh, 24 How. 
 
 S.) 207, 
 
 Samuels v. Blanchard, 25 "\\ is. 329. 
 Sanborn v. Webster. 2 Minn. 323, 
 Sanchez v. Roach. 5 Cal. 24S, 115. 
 
 ler,etc, Co. v. Yesler (Wash.), 
 27 Pac. Rep. 269, 
 Sanders v. Farrell, 83 Ind. 28, 
 
 v.Johnson, 6 Blackf. 50, 
 
 v. Loy, 45 Inch 229, 
 
 v. Low 6.1 Ind. 29S, 
 
 v. Peck, 30 111. App. 23S, 
 
 v. Peck. 131 111. 407. 
 
 v. Reister, 1 Dak. 151, 
 
 v. Sanders. 30 So. Car. 207, 
 
 v. Scott, 6S Inch 130, 
 
 v. State. 85 Ind. 316, 
 
 v. Wakefield, 41 Kan. 11, 
 Sandford v. Sandford, 58 N. Y. 
 
 v. Tucker. ^4 Inch 219, 
 Sandford Tool Co. v. Mullen, 1 Inch 
 
 App. 204, 
 San Diego, etc.. Co. v. Neale, SS 
 Cal. 50, 41 5- 5-''- 
 
 Sandon v. Proctor. 7 B. & C. Soo, 
 Sands v. Woods, 1 la. 263, 
 San Francisco, Citv of, v. Itscll, 133 
 
 U. S, 65, 
 Sankey v. Sankey, S Ala. 601, 
 San Mateo v. Southern Pacific R. 
 R. Co., 116 U. S. 13S, 125, 
 
 Sa'nxay v. Hunger, 42 Ind. 44, 277, 
 Sargent v. Cunningham (Cal.), 25 
 Pac. Rep. 677. 
 
 v. Flaid, 90 Inch 501, 
 
 v. Roberts, 1 Pick. 337, 
 
 v. State. 96 Ind. 63, 
 Sassengut v. Posey, 67 Ind. 408, 
 Sater v. State. 56 Ind. 378, 
 rlee v. Bliss, 36 Cal. 4S9, 
 r V. ( li'ill'm. 67 Mo. 654, 
 Sauls v. Freeman (Fla.), 4 So. Rep. 
 
 577- 
 Saunders v. Heaton. 12 Ind. 20, 
 
 v. Waggoner, 82 Ya. 316, 
 Savage v. Maresch, 3 Wash. T\ . 259. 
 
 v. State, 19 Fla. 561, 
 Savannah v. Jessup, [06 U. S. 563, 
 Savings, etc., Co. v. I lorton, 63 Cal. 
 310. 
 
 9 
 
 4i3 
 
 675 
 
 96 
 
 114 
 
 59 1 
 456 
 306 
 
 -53 
 
 134 
 
 4h3 
 4S3 
 140 
 
 rr to Pagi S.] 
 
 Sawyer, Ex parte. 21 Wall. 235, 439 
 Sawyer v. Chambers, 43 Barb. 622, '17. 
 
 v. Chicago, etc., Co., 22 Wis. 
 402. 570 
 
 Sawyer v. Sargent. 65 Cal. 259. 7S5 
 Sayers v. First Nat. Bank, S9 Ind. 
 
 -~3°> 5-3 
 
 Sayre v. Sayre, 17 X.J. Eq. 349, 604 
 
 Saxon v. Pence, 1 Bailey (S. C), 66, 7 2 9 
 
 v. State. 116 Inch 6, 100, 176, 775 
 
 Scarborough v. Pargond, 10S U. S. 
 
 a, 
 
 o 
 
 5*7 
 
 /O. 7S3 
 
 69 
 
 490 
 
 490 
 
 57i 
 616 
 
 37° 
 6, 231 
 
 518 
 67, 112 
 
 169 
 
 647 
 
 550 
 533 
 77o 
 
 l 7 
 483 
 
 444 
 75 2 
 
 73 6 
 12S 
 619 
 
 2 48 
 
 774 
 679 
 167 
 3 11 
 
 469 
 
 7&7 
 
 78 
 266 
 
 294 
 
 "4 
 
 96 
 
 567, 
 
 104 
 
 7- 
 
 4S3 
 
 674 
 
 140 
 
 Scarlett v. Snodgrass, 92 Inch 262. 
 Schafer v. Smith, 6S Ind. 226, 
 
 v. State, 49 Ind. 460, 
 Schartzer v. Love. 40 Cal. 93, 
 Schee v. McQuillken, 59 Ind. 269, 399, 
 
 616 
 
 Scheible v. Slagle, 89 Inch 323. 334. 401. 
 
 462, 5S0, 7SS 
 
 v. Lav, 615 Ind. 332, 524 
 
 Schellhous v. Ball, 29 Cal. 605, 7SS 
 
 Scherer v. Ingerman, no Ind. 42S, 220 
 Schiffer v. Adams, 13 Coh 572, 120, 557 
 Schindler v. Westover, 99 Inch 395, 74S 
 Schirmeier v. Baecker, 20 111. App. 
 
 373. TT 6 75 
 
 Schlemmer v. Myerstem, 19 How. 
 
 Pr. 412, 733 
 
 Schlicht v. State, 56 Inch 173, 254. 7S2 
 
 Schlotter v. State, 127 Ind. 493, 622 
 
 Schlungger v. State, 113 Inch 295. 250, 
 
 291, 647, 668, 669 
 
 Schmied v. Keeney, 72 Ind. 309, 630 
 
 Schmidt v. Colley, 29 Ind. 120, 707 
 
 v.Gilson, 14 Wis. 514, 4S1 
 
 v. Wright, 8S Ind. 56, 149, 37S 
 
 Schmitt v. Schmitt, 32 Minn. 130, 7S4 
 
 Schmitz v. Lauferty, 29 Ind. 400, 237. 
 
 7hv 77S 
 Schmohl v. Fusco, 13 N. Y. Supp. 
 
 583, 444 
 
 Schmurr v. Stuts, 119 Inch 429, 791 
 
 Schnartzer v. Love, 40 Cal. 93, 115 
 
 Schnewind v. Hacket, 54 Inch 24S, 162 
 Schnied v. Keeney, 72 Inch 309, 217 
 Schnitzins v. Bailey (N. J.),'iS Ath 
 
 Rep. 192, 66 
 
 Schnurr v. Stults, 119 Ind. 429, 70S, 791 
 Schoefner v. State, 3 Wis. S23, 578 
 
 Scholey v. Halsey, 72 X. Y. 37S, 497 
 v. Row, 23 Wall. 331, 126 
 
 School District v. Cooper, 29 Neb. 
 
 433- 6 5 
 
 School Manual, In re, 63 N. H. 574, 26 
 School Town v. Gebhart, 60 Ind. 
 
 187, 162 
 
 Schooner Constitution v. Wood- 
 worth. 2 111. 511, 21, 303 
 Schoonover v. Irwin. 5S Ind. 287, 101
 
 TABLE OF CASES. 
 
 CVll 
 
 [References are to Pages.] 
 
 Si'hoonover v. Reed. 65 I ml. 313, 757 
 Schoultz v. McPheeters, 79 Ind. 373, 5, 7 
 Schouton v. Kilmer, S How. Pr. 
 
 5 2 7. 5 S 9 
 
 Schreckengasl v. Ealy, [6 Neb. 510, 523 
 Schrichte v. Stites, etc., 127 fnd. 
 
 472, 177. I*-, 
 
 Schreiber v. Butler, 84 Ind. 576, 580, 
 
 686 
 Schriber v. Richmond, 73 Wis. 5, 413 
 Schroeder v. Merchants Ins. Co., 
 
 104 111. 71, 12 
 
 v. Rock Island, etc., Co., 47 la. 
 
 375. 
 
 v. Schmidt, 71 Cal. 399. 
 
 v. Schweizer, 60 Cal. 467, 
 Schuff v. Ranson, 79 Ind. 45S, 
 Schulties v. Reiser, 95 Ind. 159, 
 Schultz v. Cremer, 59 la. i s 2. 
 
 v. McLean (Cal.), 18 Pac. Rep. 
 
 775. 
 Schultze v. McLeary, 73 Tex. 92, 
 Schunck v. Gegenseitiger, etc., 44 
 
 Wis. 369, 
 Schuster v. Wingert, 30 Kan. 529, 
 Schuylkill County V. Boyer, 125 
 
 Pa. St. 226, 
 Schwab v. Charles Parker Co., 55 
 
 Conn. 370, 
 
 v. City of Madison. 49 Ind. 329, 
 y. Coots, 4S Mich. 116, 
 Schwann v. State. Si Ind. 2^7. 
 Schwarz v. Oppold, 74 X. V. 307, 
 Schweickhart v. Stuewe, 75 Wis. 
 
 Scobey v. Finton, 39 Ind. 27^, 1599, 
 
 Scofield v. Whitelegge, 49 N. Y. 
 
 259. 
 
 Scott v. Allen, 1 Tex. 50S, 
 
 y. Board, 101 Ind. 42, 5 (.5, 
 
 v. Burton, 6 Tex. 322, 
 v.Crawford, 12 Ind. 410, 
 V. Indianapolis Wagon Works, 
 48 Ind. 75, 
 
 v. Jones, 4 Taunt. S65, 
 v. Kelly, 22 Wall. 57,' 
 y. Marchant, 88 Ind. 349, 
 y. Milton (Fla.), 7 So. Rep. 32, 
 y. Minneapolis, etc., Co., 42 
 Minn. 179, 
 
 v. Scott, ^ Ga. 102, 
 
 v. Scott, 124 Ind. 66, 623, 
 
 V. Stetler, 12S Ind. 385, 507, 
 
 v. Yolo County, etc., 75 Cal. 
 
 114. 
 
 \. Zartman, 61 Ind. 32S, 394, 
 
 ScottV Succession, 41 La. Ann. 668 
 
 Scotland County v. Hill, 112 U. S. 
 
 183, 699, 
 
 539 
 9 6 
 
 475 
 395 
 379 
 
 692 
 
 74 
 43 6 
 
 4S1 
 537 
 
 418 
 
 667 
 
 591 
 
 6S2 
 
 379 
 
 t'^ 
 
 126 
 
 601, 
 603 
 
 5 21 
 
 71 
 767 
 
 6S 
 215 
 
 509 
 
 697 
 
 249 
 
 3'- 
 3*4 
 
 293 
 590 
 689 
 609 
 
 43 6 
 396 
 
 , 7S 
 
 Scotten v. Divelbiss, [6 Ind 
 v. I >i\ ilbiss, 60 Ind. 37, 
 v. L( mgfelloM , 40 ] nd. 2]. 51 1 
 
 \ . Randolph, 96 Ind. 5S1, 172 
 
 Scotton y. Mann. 89 Ind. 404. 295 
 Scovell y. Kingsley, 7 Conn. 284, 
 Scovern v, State, 6 Ohio St. 2SS, 
 
 Scoville v. Chapman. 17 Ind. 470, 
 
 Scripps y. Reilly, 35 Mich. 371. 
 
 7<>3 
 Scriven v. Hursh, 39 Mich. 98, 
 Scroggs v. Stevenson (N. C.), 12 
 S. E. Rep. 1031, 
 
 v. Stevenson, 100 N. C. 354, 
 Seager v. Aughe, 97 Ind. 285. 159, 
 
 16S. 
 
 ; 1 
 617. 
 
 7"4 
 7<> 
 
 191 
 170, 
 
 Sealy v. California, etc., Co., 19 
 
 Ore. 94, 633 
 
 Searl v. Smith. 15 Ind. 23, 767 
 
 Searle v. Whipperman, 79 Ind. 42 \. 
 [26, 284, 285, 287, 295, 399. 595.599. 72S 
 Searles v. Averhoff, 2S Neb. 66S, 102 
 Seavev v. Maples, 94 Ind. 205, 735 
 
 v. Walker, 108 Ind. 78, ' 703 
 
 Security Co. v. Arbuckle, 123 Ind. 
 
 518, 15^475. 
 
 Seekell y. Norman, 78 la. 254, 615. 
 Segelke v. Finan, 48 Hun. 310, 5S2 
 
 Segler v. Coward, 24 So. Car. 119, 1 1 1 
 Seibert v. State, 95 Ind. 471. 256 
 
 Seifert v. Brooks, 34 Wis. 443, 1 js 
 
 Seifrath v. State, t,^, Ark. 412, 789 
 
 Seig v. Long, 72 Ind. iS, 17S. 775 
 
 Seivers v. McCall, 1 Ind. 393, 524 
 
 Selking v. Jones, 52 Ind. 409, 
 Selkirk v. Cobb, 13 Gray, 313, 731 
 
 Sellers v. Foster, 27 Neb. 1. 557 
 
 v. Union Lumber Co.. 36 Wis. 
 
 39S. 
 Semmes v. United States, 91 U. S. 
 
 21, 47'' 
 
 Semple, etc., Co. v. Thomas. 10 Mo. 
 
 App. 457, 100 
 
 Senate Resolutions, In re, 21 Pac. 
 
 Rep. 470, 5 
 
 Senter v. De Bernal. 38 Cal. 637, 1 1 1, 
 
 Sentinel Co. v. Thomson, 38 Wi>. 
 
 489, 
 Sering v. 1 >oan, 23 Ind. 455, 
 Sessions v. Pintard, [8 How. [06, 
 Seward v. Clark. 67 Ind. 2 s . >. 219, 
 v. Corneau. [02 U. S. t6l, 
 
 -7 1 
 328 
 
 v. I lay den, 105 Mass. 1 ; s . 
 v. Jackson. 8 Cow . 
 v. Malotte, 1 5 Cal. 304, 
 Sexton v. Pike, 13 Ark. [93, 
 
 3 1 ; 
 
 3 2 4 
 101
 
 :vm 
 
 TABLE OF CASES. 
 
 [References a 
 
 Seymour v. Board, 40 Wis. 62, 519 
 
 \. Freer, 5 Wall. 822, 324 
 
 Seymour, etc., Co. v. Brodhecker 
 (Ind.), 30 N. E. Rep. — . 754. 77° 
 
 our, City of, v. Cummins, 119 
 
 Ind. 14S, 765 
 
 kman v. Little, s 7 Ind. [Si, 511 
 
 Shafer *> . Ferguson, 103 Ind. 90, 729 
 
 v. Newlan. 29 111. 44, 483 
 
 Shaffer v. State, 27 Ind. 131, 541 
 
 Schafer v. State, (.9 Ind. 460, 606 
 
 Shane v. Lowry, 4S Ind. 171, 6S7 
 
 Shank v. Fleming, 9 Ind. 189, 616 
 
 Shannon v. Cavazos, 151 U.S. App. 
 
 LXXI, 44S 
 
 v. I lav, 106 Ind. 5S9, 19 
 
 v. Marselis, Saxt. (N. J.) 4I3, 134 
 
 v. Spencer, 1 Blackf. 120, 271 
 
 Sharon v. Sharon, 68 Cal. 326, 208 
 
 v . Sharon, 79 Cal. 633, 569 
 
 Sharp v. Brunnings, 35 Cal. 520, 672 
 
 v. Malia, 124 I ml. 407, 713, 719 
 
 v. Miller, 57 Cal. 415, 327 
 
 Moffitt, 94 Ind. 240, 
 
 -155 
 Sharpe v. Clifford, 44 Intl. 346, 394, 636 
 
 69S 
 
 3°9 
 119 
 
 56 
 
 1 86 
 
 793 
 
 739 
 
 v. Graydon, 99 Ind 
 v. Harding, 21 Ind. 334, 
 v.Jones, 3 Murphy (N.C.),3o6, 
 v. Kelley, 5 Denio, 431, 34, 
 
 V. Sharpe, 27 Ind. 507, 
 v. Trever, 8 Minn. 273, 
 Shatto v. Crocker, 87 Cal. 629, 
 Shaughnessy v. St. Louis, etc., Co., 
 
 7 Mo. App. 591, 767 
 
 Shaw v. Binkard, 10 Ind. 227, 162, 401 
 \ Bryan, 39 Mo. App. 523, 655 
 
 v. Fleming, 5 Houst. 155, 496 
 
 v. Hoadley, 8 Blackf. 165, 596,598 
 v. Merchants' Nat. Bank, 60 
 Ind. 11, 163, 218, 719 
 
 v. New York, etc., Co., 150 
 
 Mi 5. 1S2, 690 
 
 \. Newsom, 7^ Ind. 7,31, 17S 
 
 v. Padley, 04 Mo. 519. 191 
 
 v. Williams, S7 Ind. 158. 156 
 
 Appeal, 121 Pa. St. 302, 535 
 
 Shea v. Quintin, 30 Iowa, 58, 147 
 
 Shearouse v. Smith. 83 (>a. 520, 6S 
 
 Sheehan v. People. 131 111. 22, 691 
 
 Sheeks v. Fiilior, 29 N. E. Rep. 443, 43] 
 
 Sheeley v. Wiggs, 32 Mo. 398, 306 
 
 Slu<! i \. Bray, 125 Ind. 33, 525, 626, 646 
 
 \ . Selden, 2 Wall. 177, 102 
 
 Shelby Tp. v. Randies, 57 Ind. 390, 440. 
 
 591 
 
 Sheldon v. Dalton, 57 Cal. 19, [15 
 
 v. New ton. 3 Ohio St. 494, 12 
 
 v. Wright, 7 Barb. 59, 147,285, fiS i 
 
 Shellenbarger v. Biser, 5 Neb. 195, 590 
 
 ShellitO V. Sampson. 61 la. 40, 699 
 
 re to Pa 
 
 Shelly v. Vanarsdoll, 23 Ind. 543, 
 
 404. 
 Shelton v. Van Kleeck, 106 I. . S. 
 
 53 2 > 
 
 v. Wade. 4 lex. 14S, 
 Shenners v. West Side, etc., Co., 78 
 
 Wis. 3S2, 
 Sin paid v. New York, etc., Co.. 60 
 Hun. 584, 
 v. Brenton, 20 la. 41, 
 Shepherd v. Dodd, 15 Ind. 217. 
 v. Groff, 34 W. \'a. 123, 
 v. Lanfear, 5 La. 336, 
 v. Missouri, etc., Co., 85 Mo. 
 (.29. 
 
 v. Pepper, 133 L . S. 620, 
 
 v. State, 64 Ind. 43, 
 
 Sheppard v. Collins. 12 la. 570, 
 
 ■ . Shelton, 34 Ala. 652, 
 
 v. Wilson, 6 How. 260, 
 
 Shepperd v. Brown, 30 W. Va. 13, 
 
 Sherlock v. Ailing. 44 Ind. i s ). 
 
 v. First Nat. Hank. 53 Ind. 73, 
 Shercliff v. State, 96 Ind. , 
 Sherman v. Hogland, 73 Ind. 472, 
 v. McKeon, 38 N. Y. 266, 
 v. Nixon. 37 Ind. 153, 179. 
 
 v. Palmer, 37 Mich. 509, 
 v. Windsor, etc., Co., 57 Vt. 57, 
 Sherry v. Foresman, 6 Blackf. 56, 
 v. State Bank. 6 Ind. 397, 
 v. Win ton, 1 Ind. 96, 
 Shewv. Hews.i2<> Ind. 474,416, 527. 
 Shewalter v. Bergman, 123 Ind. 
 155, 13, 165, 190.420, 758, 760, 
 
 v. Williamson, 125 Ind. 373. 
 Sheward v. Citizen's Water Co. 
 
 (Cal.), 27 Pac. Rep. 439, 
 Shidler v. State (Ind.), 2S N. E. 
 
 Rep. 537, 
 Shields v. Arnold, I Blackf. 109, 
 \. McMahan, 101 Ind. 591, 162. 
 v. State. 95 Ind. 299. =530, 
 
 Shileto v. Thatcher. 43 Ohio St. 63, 
 Shillern v. May, 6 Cranch. 267, 
 Shimerv. ButlerUniversity, 87 Ind. 
 
 218, 
 Shine v. Kentucky, etc., Co., 85 
 
 Ky. 177. 
 Shinkle v. First Nat. Bank. 22 Ohio 
 
 St. 516, 
 Shinnabarger v. Shelton, 41 
 
 App. 147, 
 Shipman v. State, 38 Ind. 549, 
 Shircliff v. State, 96 Ind. 369, 
 Shirk v. Andrews, <;2 I nd. 509, 
 Shirley v. Birch, 16 Ore. 1, 132, 146. 
 v. Hagar, 3 Blackf. 225, 
 v. Lunenburgh, 1 1 Mass. 379, 
 
 355- 
 Mo. 
 
 545' 
 
 -55- 
 
 3' < s - 
 
 5^7 
 
 45 1 
 
 5'5 
 
 70S 
 739 
 3 X 9 
 568 
 
 539 
 6;o 
 40S 
 306 
 63S 
 761 
 146 
 
 27 
 760 
 256 
 
 2S 9 
 126 
 
 1S1 
 666 
 490 
 306 
 
 339 
 420 
 
 538 
 
 791 
 
 86 
 
 258 
 640 
 
 6S2 
 
 53 ' 
 
 34S 
 45° 
 
 774 
 
 439 
 
 35 6 
 
 547 
 792 
 669 
 
 599 
 
 286 
 
 130, 
 
 273
 
 TABLE OF CASES. 
 
 ClX 
 
 | /<.', i, r, m ■ - are to Pages.] 
 
 4 S 3 
 
 550 
 
 693 
 623 
 
 4°3 
 
 Shirley v . Wright, Salk. 700, 
 
 Shirts v. I rons, 28 Ind. 458, 401 . I il k , 
 
 Shoaf v. Joray, s '> End, 70. 2S7, 295, 728 
 
 Shoemaker \. Axtell. 7S Ind. 561, 215 
 
 v. Board, 36 Ind. 175. 90, 507 
 
 v. Smith, 74 Ind. 71, Si, 297, 399, \>> \ 
 
 v. Smith, 100 Ind. 40, 81, 494 
 
 V. State, 12 Ohio, 43, 679 
 
 Sholenberger v. Brinton, 52 Pa. St. 
 
 Shell v. Lathrop, 3 Hill. 237, 
 Shoner v. Pennsylvania Co., 28 N. 
 
 E. Rep. 6l6, 
 
 Shorh v. Kcnzie, 100 Ind. 429, 
 
 Shordan v. Kyler, 87 Ind. 3S, 
 
 Shore v. Taylor, 46 Ind. 345, 297,413,784 
 
 Shorf v. Kinzie, So Ind. 500, 77^ 
 
 Short v. Chicago, etc., Co., 79 la. 73, 758 
 
 v. Bridwell, 15 Ind. 211, 34 
 
 v. Sparrow, 96 X. C. 34S, 94 
 
 v. Stotts, 58 Ind. 29, 51 1 
 
 v. Stutsman. 81 Ind. nq, 19S, 199, 
 
 2 3 8 
 Shotwcll v. McEhiney, 101 Mo. 
 
 677, 7SS, 792 
 
 Shoultz v. McPhecters, 72 Ind. 373, 9,90 
 Shreffler v. Nodelhoffer, 133 111. 536, 636 
 Shreve v. Dulany, 1 Cranch. C. C. 
 ., 499- " 697 
 
 Shropshire v. Kennedy, 84 Ind. in, 522 
 Shrover v. Lawrence, 9 Ind. 322, 77 
 
 Shugart v. Miles, 125 Ind. 44V 3, 165, 
 196, 197, 198, 199, 202, 203, 669, 700, 
 
 75 6 - 77 1 
 Shular v. State, 105 Ind. 2S9, 250, 256, 
 
 539< 623, 737 
 Shulse v. Mc Williams, 104 Ind. 512, 
 
 615, 619, 760 
 Shulties v. Reiser, 95 Ind. 159, 121 
 
 Shultz v. Sanders, 38 N. J. Eq. 1^4, 495 
 Shutte v. Thompson, 15 Wall. 151, 733 
 Sibbaid, Ex parte, 12 Pet. 48S, 450 
 
 Sibley v. Smith. 46 Ark. 27^. =539 
 
 Sickle v. Belknap (Ind.), 28 N. E. 
 
 Rep. 305, 11 
 
 Sidener v. Davis, 6g Ind. 330, 250, 399, 
 
 769, 770 
 v. Davis, 87 Ind. 342. [63, 768 
 
 Sidnev, etc., Co. v. Warsaw School 
 
 District, 130 Pa. St. 76. 66c 
 
 Siebert v. State, 95 Ind. 471, 768 
 
 Sigler v. Woods, 1 la. 177, 675 
 
 Sikes v. Ransom, 6 Johns. 279, ] \\ 
 
 Silberberg v. Pearson, 75 Tex. 2S7, 090 
 
 Silsby v. Foote, 20 How. 290, 323 
 
 v. Frost, 3 Wash. Ty. 388, 581 
 
 Silvers v. Junction R. Co., 17 Ind. 
 
 142. 697 
 
 v. Nerdlinger, 30 Ind. 53, 588 
 
 Silver v. Parr. 115 Ind. 113, 717 
 
 Sim v. I [urst, 1 ( I ml. 
 Simar \ . Canaday, 53 N. Y. 29S, 
 Simci 'ik \ . Bank, 1 1 Kan 
 Simmon v. Larkin, 82 Ind. 
 Simmons v. Beazel, 125 Ind. y 
 
 v. Simmons Mud.;, 2s N. E. 
 
 Rep. 702, 
 
 v. Spratt, 26 Fla. 449, 
 Simon v. Home Ins. Co., 58 Mich. 
 
 278, 
 Simonds v. Buford, iS Ind. [76, 
 Simons v. Simons, 107 Ind. 197. 
 
 v. Simons, 28 N. E. Rep.. 702, 
 
 V. State. 25 Ind. 331, 
 Simonton v. Huntington, etc., Co., 
 
 12 Ind. 380, 
 Simpers v. Simpers. [5 Md. 160, 
 Simpkins v. Smith. 94 Ind. 470, 
 Simpson v. Greeley, 20 Wall. 152. 
 
 v. Kirchbaum, 43 Kan. 36, 65 
 
 v. Minor, 1 Blackf. 229, 
 
 v. Pearson, 31 Ind. 1, S3, S9, 
 
 v. Rothschild, 43 Kan. 33, 
 
 v. Shafer, 20 Ind. 306, 
 
 v. Wilson, 6 Ind. 474, 
 Sims, Ex parte, 44 Ala. 24S, 
 Sims v. Boynton, t,2 Ala. 353, 
 
 v. City of Frankfort, 79 Ind. 
 446, 215, 507, 562, 565, 
 
 v. Cooper, ion Ind. 87, 
 
 v. Dame, 1 13 Ind. 127. 
 
 v. Gay, 109 Ind. 501, 
 
 v. Geay, 109 Ind. 501, 
 
 v. Ilines, 121 Ind. 534, 
 
 v. Hurst, 44 Ind. 579, 
 Sinclair v. Jackson, S Cow. ^43, 
 
 v. Washington, etc.. Co., 4 
 Mac Arthur. 13, 
 Singer Mnfg. Co. v. Barrett. 04 N. 
 C. 219, 
 
 v. Sammons, 4<> Wis. 310. 
 
 v. Struckman, 72 Ind. 601, 
 Single v. Schneider, 30 Wis. 570, 
 Singleton v. O'Blenis, 125 Ind. 151, 
 
 v. Pidgeon, 21 Ind. 1 18, 
 Sinker, Davis & Co. v. Green, 113 
 
 Ind. 204, 475, 712 
 
 Sinking Fund Cases, 99 U. S. 700, 5, 9 
 Sioux City, etc., Co. v. Finlayson, 
 
 16 Neb. 578, 539. 
 
 Sire v. Ellithrope, etc., Co., 137 U. 
 S. 579, 
 
 v. Rumbold. 11 X. V. Supp. 
 
 734. 5 17 
 
 Sisson v. State. 77 \\ is. 273, 230. 254 
 Sites v. M iller, 1 20 Ind. 19, 
 Sixth Avenue, etc., Co. v. Gill 
 
 etc., Co.. 71 X. Y. 1.30, 335. 462 
 
 Si/er v. Many. [6 How. 98, 492 
 
 Skaggs v. State. 10S Ind, 53, 293, 791 
 
 60 1 
 
 572 
 
 22 1 
 
 613 
 
 557 
 
 217 
 
 9- 
 
 254 
 
 758 
 192 
 090 
 116 
 
 322 
 208 
 
 483 
 79 2 
 
 70 
 
 y k 1 
 
 609 
 
 34 
 636 
 
 10S 
 
 61 
 
 604 
 
 28 
 
 326 
 757 
 
 4\; 
 
 61 9
 
 ex 
 
 TABLE Ol CASES. 
 
 [References a 
 
 Skeels v. Starrett, 57 Mich. 350, 612 
 Skeen v. Huntington, 2^ [nd. 510, 281, 
 
 283, 2S4 
 Skidmore v. Davies, 10 Paige, 316, 323 
 Skillen v. [ones, \ \ [nd. [36, 579 
 
 Skillern v. May, 6 Cranch, 267, 49S 
 Skinner v. Blair, s 7 N. C. 16S, 159 
 
 v. Bland, 87 X. C. [68, 457 
 
 Sla< win v. Pom< roy, 6 Crunch. 221, 392 
 Slagle v. Bodmer, 58 Ind. 465, 64, 87, 
 
 202 
 
 Slaughter v. Toust, 4 Blackf. 324, 142 
 Slaughterhouse Cases, to Wall. 
 
 273, 9 s . 337 
 
 Slauter v. Favorite. 107 Ind. 291, 506 
 
 v. Hollowell, 90 Ind. 286, 630 
 
 Slessman v. Crozier, So Ind. 4S7, 187 
 
 Slicer v. Bank of Pittsburgh, 16 
 
 How. 571, 672 
 
 Sloan v. McKinstry, 18 Pa. St. 120. 67: 
 
 re to Pages.} 
 
 Smith v. Frampton, 2 Salk. 044. n., 
 v. Frankfield, 77 N. Y. 414, 
 \ Freeman, 71 Ind. 85,394, 395, 
 v. Goodknight, 121 Ind. 312, 
 
 v. Goodwin, 86 Ind. 300, 7 I 3i 
 v. Gorham, 119 Ind. 436, 698, 
 v. Gould, 61 Wis. 31, 
 v. Guerant, 55 Mo. 584, 
 
 Hannibal, etc., Co., 37 Mo. 
 
 Statu. 8 Inch 312, 
 
 v. Whitbank, 12 Ind. 444. 
 
 v. Whiteman, 6 Ind. 494, 
 
 Small v. Reeves. 14 Ind. 163, 
 
 Smawley v. Stark, 9 Ind. 386, 
 
 Smedes v. Hooghtaling, 3 Cai. 48, 
 
 Smethhurst v. Independent, etc., 
 
 Church, 1 j.8 Mass. 261, 
 
 2 53 
 401 
 1 16 
 561 
 
 76S 
 310 
 
 698 
 
 Smetters v. Rainey, 14 Ohio St. 2S7, 117 
 
 St. 
 
 499 
 
 Smith v. Adams, 130 U. S^ 167, 
 v. Arsenal Bank, 104 Pa. 
 
 51S, 
 
 v. Bean, 46 Minn. 6S7, 
 
 v. Biscailuz, S4 Cal. 344, 
 
 v. Baugh, 32 Ind. 163, 
 
 v. Burlingham, 44 Kan. 4S7 
 
 v. Calloway, 7 Blackf. 86, 
 
 v. Camp. S4 Ga. 117, 
 
 v. Carr, 16 Conn. 450, 
 
 v. City of Madison, 7 Ind. 86, 
 
 v. Coleman, 77 Wis. 343, 126, 746 
 
 v. Commonwealth, etc., Co., 49 
 
 Wis. 322. 
 
 v. Cooper, 21 Ga. 359, 
 v. Countryman, 30 N. Y. 655, 
 v. Cudworth, 24 Pick. 196, 
 v. Cunningham, 2 Tenn. 
 
 565, 
 
 v. Davidson, 45 Ind. 390, 
 
 702 
 733 
 3°7 
 756 
 6.39 
 
 5 S 9 
 667 
 
 577 
 3° 
 
 617 
 
 459 
 406 
 190 
 
 Ch. 
 
 117 
 
 257, r.ss, 
 748 
 
 \ . Dennison, 101 111. 057, 471 
 
 v. Dittman, 11 N. Y. Supp.769, 545 
 v. Dodds, 35 End. 452, 294 
 
 v. Dragert, 61 Wis. 222, 519 
 
 v. Eaton, 50 la. 4SS, 559 
 
 v. Ellendale Mill Co., 4 Ore. 70, 90, 
 
 671 
 v. Flack. 95 [nd. 116, 524, 765 
 
 v. Floyd, 18 Barb. 522, 529 
 
 v. Foster. 59 Ind. 595, 461, 632 
 
 287, 
 
 546, 
 
 Harris, 76 Ind. 104, 
 I lavs, 23 111. App. 244. 
 1 Filer, 119 Ind. 212, 636,679, 
 Hess, 91 Ind. 424, SS, 
 
 Hood. 25 Pa. St. 218, 
 
 Hubbard, 85 Tenn. 306, 
 Huntley, 48 Mich. 352, 
 Hutchison, S3 Mo. 6S3, 
 Jeffries, 25 Ind. 376, 292, 6SS, 
 junction, etc., Co., 29 Ind. 
 
 Kibbe, 31 Hun. 390, 
 
 Kruger, 33 Ind. S6, 
 
 Kyler, 74 Ind. 575, 162, 294, 
 
 v. Laumier, 12 Mo. App. 546, 
 
 v. Leisher, 23 Ind. 500, 
 
 v. McCarthy, 33 111. App. 176. 
 
 6S: 
 
 , McKean.gglnd. 101,502, 74S, 
 . McMillen, 19 Ind. 391, 
 
 Martin, So Ind. 260, 
 . Meldren, 107 Pa. St. 348, 
 . Mohn, S7 Cal. 4S9, 
 , Morrill, 39 Kan. 665, 
 . Myers, 5 Blackf. 223, 
 . Myers, 109 Ind. 1. 5, 13, 392, 
 . Nescatunga, 36 Kan. 758, 
 . Neubern, 70 N. C. 14, 
 . Newland, 9 Hun. 553, 
 . Niagara Fire Ins. Co., 60 Vt. 
 
 . Noe, 30 Ind. 117, 
 
 . Promtt, S2 Va. S32, 
 
 . Rowles, S5 Ind. 264, 
 
 . Ryan, S3 Ind. 152, 266, 
 
 . Schulenberg, 34 Wis. 41, 
 
 . Shaffer, 29 Neb. 656, 
 
 . Shoemaker, 17 Wall. 630, 
 
 750 
 494 
 39 6 
 21 5, 
 590 
 
 71S 
 699 
 
 5-- 
 6 
 
 640 
 268 
 
 537 
 707 
 
 5°4 
 178 
 
 4S1 
 
 752 
 640 
 718 
 
 1S6 
 
 I4 1 
 4S0 
 
 296, 
 
 769 
 
 677 
 
 77" 
 70S, 
 
 73§ 
 
 162 
 394 
 
 v. Smith, 3 Ind. 303, 
 
 v. Smith, 77 Ind. So, 
 
 v. -Smith, 106 Ind. 43, 
 
 v. Smith, 52 N.J. L. 207, 
 
 V. Smith, 51 Wis. 665, 
 
 v. Speed, 50 Ala. 276, 
 
 v. St. Paul, etc., Co., 32 Minn 
 
 '. 
 
 749 
 619 
 566 
 582 
 713 
 738 
 1 So 
 
 444 
 308 
 
 3° 
 664 
 
 698 
 
 179 
 
 675 
 
 ■56 
 279 
 
 4S3 
 490 
 
 573. 
 614 
 
 509 
 
 76S 
 
 395 
 
 578 
 
 5 J 9 
 
 2S 
 
 53S
 
 TABLE OF CAS1 S 
 
 CXI 
 
 [Jtefi rences are to Pages.\ 
 
 Smith v. St. Louis, etc., Co 
 Mo. s? s . 
 
 v. State, 4S Ark. 148, 
 v. State, 1 17 Ind. [67, 
 v. Strother, 68 Cal, 194, 
 v. Summerfield, m- N. C. 
 v. Summerfield, [08 N. C. 
 v. Tatman, 71 Ind. 171, 
 
 ■> 53 
 
 306 
 
 94 
 
 79' 
 
 5,26 
 
 5 S «> 455 
 284, 634 
 294, 6S7. 
 
 72S 
 
 v. Taylor. 11 la. 214. 770 
 
 v. Thomason, 26 S. C. 607, 66 
 
 v. Trabue, 9 Pet. 4. 73 
 
 v. Uhler. 99 Ind. 140, 688 
 
 v. United States. 94 U. S. 97, 24S 
 
 v. Washington, 20 How. 13^, 63 
 v. Western Union Tel. Co.', S3 
 
 Ky. 269, 332 
 
 v. White, 5 Dana, 376, 729 
 
 v. Whitney, 116 U. S. 167, 441 
 
 v. Williams, 22 111. 357, 556 
 
 v. Williams, 11 Kan. 104, 791 
 Williamson, 6 Hal. (N 
 
 v. Williamson, o rial. (JN. J.) 
 313. 677 
 
 356, 35S 
 14 Cal. 
 
 5 2 - 
 Dillon, 16 Ind. 169, 669 
 
 Wright. 71 111. 167, 
 Yreka Water Co. 
 
 201. 
 Smithson 
 
 Smock v. Brush, 62 Ind. 156, 597 
 
 v. Harrison, 74 Ind. 34S, 307, 394 
 
 Smoot v. Boyd, S7 Ky. 642, 269 
 
 v. Eslava. 23 Ala. 059, 739 
 
 v. Wathen, 8 Mo. 522, 604 
 
 Smurr v. State, SS Ind. 504, 6S9 
 
 v. State, 105 Ind. 12^, 2^0, s-7. 
 
 647, 668, 669 
 
 Smyth, Ex parte, 3 A. & E. 319, 43^ 
 
 v. Strader, 12 How. U. S. 142,' 137 
 
 Smythe v. Boswell, 117 Ind. 365, 5, 6, 
 
 7, Si, 03, 263. 333 
 
 Snavely v. Abbott Buggy Co., 36 
 
 Kan. 106, 65, 71 
 
 Snead v. Tietjen (Ariz.), 24 Pac. 
 
 Rep. 324, 698 
 
 Snell v. De Land (111.), 27 N, E. 
 Rep. 1S3, 
 
 v. Hancock, 11 la. 117, 
 v. Snell, 123 111. 403, 
 Snelson v. State, 16 Ind. 29. 
 Snodgrass v. Hunt, 1^ Ind. 274, 
 
 Snowden v. Wilas, 19 Ind. 10, 
 
 Snyder v. Braden, ,S Ind. 143, 
 v. Fleming, 124 Ind. 335, 
 v. Snyder, 75 la. 255, 
 v. State, 124 Ind. 33^, 105 
 v. United States, 112 U. S 
 
 Sodousky v. MeGee, 4 J.J. Marsh 
 267, ' 534,615 
 
 Sohn v. Cambern, 106 Ind. 302. 19, 562 
 v. Jervis, 101 Ind. 578, 537, 702 
 
 544 
 562 
 
 33 
 670 
 7SS, 
 7S9 
 605 
 619 
 
 345 
 
 ^08 
 
 261, '276 
 
 216, ^81 
 
 10 
 
 JS2 
 
 3- 
 
 739 
 
 V> 
 
 39 6 
 
 1 )n 
 
 1 So, 
 612 
 
 Sobn v. Marion Gravel Rn;u; 
 
 73 Ind- 77- 7-1 
 
 Solomon v. Reese. 34 Cal. 
 Somerville v. Reid, 35 Ga.47, 
 Somes v. British Empire Shipping 
 
 Co.. SILL. 338, 
 Songer v. Walker, 1 Blackf. 251, 
 Souders' Appeal. 57 Pa. St. 49S, 
 Souders v. Jeffries, 98 Ind. 31, 
 Sourse v. Marshall, 23 Ind. 
 South v. State, 86 Ala. 6 17, 
 South Bend, City of, v. Hardv, 9S 
 
 Ind. 577, '537. 
 
 Southern, etc., Co. v. Stalev (T 
 
 13 S. W. Rep. 4S0, 
 Spahr v. Nicklaus, 51 Ind. 221, 
 Spalding v. Wathen. 7 Bush. 659, 
 Spanagel v. Dellinger, 3S Cal. 27^. 
 
 Spangler v. San Francisco, S4 Cal. 
 
 12, 18 Am. St. Rep. 158, 158, 159, 160 
 Sparkin v. Wardens, etc., 119 Ind. 
 
 535. 
 Sparklin v. St. James Church. 119 
 
 J nd. 535, 
 Sparks v. Heritage, 4^ Ind. 66, 
 
 v. State, 59 Ala. 82, 
 Sparling v. Dwenger, 60 Ind. 72, 
 Spaulding v. Baldwin. 31 Ind. 376, 
 
 v. Thompson, 12 Ind. 477, 64, 
 Spear v. Place. 11 How. 522, 
 Spears v. Clark, 6 Blackf. 167, 
 
 v. Matthews, 66 N. Y. 127, 
 Speer v. Davis, 3S Ind. 271, 
 Speight v. People, S7 111. 591;, 
 Spencer, Ex parte, S3 Cal. 460, 
 
 95 N. C.271, 
 Spencer v. Chrisman, 15 Ind. 21;, 
 
 v. Levering, S Minn. 461, 411. 
 
 v. McGonagle, 107 Ind. 410, 
 
 v. Robbins, 106 Ind. 5S0, 526, 
 
 v. St. Louis, etc., Co., 79 Mo. 
 500, 
 
 Spencer Water Co. v. Vallejo, 4S 
 
 Cal. 70, 
 Sperrv v. Dickinson. S2 Ind. 132, 
 Speyers v. Torstritch, 5 Rob. (X. 
 
 Y.)6o6. 
 Spicer v. Hoop, 51 Ind. 365, 
 
 v. Hunter, 14 Abb. Pr. 4, 
 Spickerman v. McChesney, m N. 
 
 Y. 686, 
 Spies v. Chicago, etc.. Co., 40 Fed. 
 
 Rep. 34, 
 
 v. People, 122 111. 1, 
 Spitley v. Frost, 15 Fed. Rep. 299, 
 Spitz v. Kerfoot. 42 Mo. App. 77, 
 Splahn v. Gillespie, 4S Ind. 397, 
 Spooner v. Handley, i<i Mass. 313, 
 
 1 S° 
 
 -74 
 393 
 61S 
 
 59° 
 670 
 
 s6 
 
 49 
 7 ;; 
 459 
 
 S7 
 
 9 
 
 SS 
 
 So 
 
 646 
 
 5- 
 53 6 
 
 4 
 7S2 
 
 590 
 601 
 
 415 
 
 216 
 
 528 
 
 73 
 
 745
 
 C X 1 1 
 
 TABLE OF CASES. 
 
 [ ffi ferences a 
 
 Sprague v. Pritchard, 108 Ind. 491, 
 
 215, 532, 646 
 Spraker v. Armstrong, 79 Ind. 577, 712 
 Spring v. South Carolina Ins. Co., 
 
 6 Wheat. 519, 461 
 
 Springer v. Peterson, 1 Blackf. iSS, 43S 
 Springfield, City of. v. Sleeper, 115 
 
 5. 5 S 7- " 534 
 
 Sprinkle v. Tonev, 73 Ind. 592, 45, 46 
 
 Spurgeon v. Smitha, 114 Ind. 453, 327 
 
 Spurrier v. Briggs, 17 End. 529, 789,790 
 
 v. Gal, 1 1 lalst. 157. 441 
 
 Squire v Ford, 9 Hare. 47. IO 
 
 St. Cr ix, etc., Co. v. Richie, 73 
 
 Wis. 401,. 4S2 
 
 St. 'jhn *. Ilnrdwick. 17 Ind. 1S0, 638 
 
 ■ W. -• 4 How. Pr. 329. 750 
 
 L>t. lou. , tic, Co. v. Evans, etc., 
 
 Co., 15 Mi,. .App. 590, 124 
 
 \ . Godly, 45 Ark. 4S5, 770, 775 
 
 v. Hendricks, 4S Ark. 177, 702, 739 
 
 Holman, 45 Ark. 102, 7^n 
 
 v. Lux, 63 111. 523, 61 
 
 v. McBride, 141 U. S. 127, 630 
 
 \. McLain (Tex.), 15 S. W. 
 
 Rep. 789, 265 
 
 v. Missouri, etc., Co., 12 Mo. 
 App. 570, 160 
 
 v. Myrtle, 51 Ind. 560, 622 
 
 v. Southern Express Co., 108 
 U. S. _>|. 72 
 
 v. Triplett(Ark.} . Law. Rep. 
 Anno. 773. 636 
 
 St. Louis Brokerage Co. v. Bun- 
 nell, 76 Mo. 554. 411 
 St. Mark, etc., Co. v. Harris, 13 
 
 How. Pa. 95, 601 
 
 St. Paul, etc., Co. v. Kelly, 43 Kan. 
 
 741. 620 
 
 Stafford v. Nutt, 51 Ind. 535, 603 
 
 v. Union Bank of Louisiana, 16 
 
 How. 135, 316,323,439 
 
 Stagg v. Compton, Si Ind. 171, 755 
 
 Stair v. Richardson, 10S Ind. 429, 774 
 
 Staley v. Barhite, 2 Caines, 221, 604 
 
 v. Dorset, 11 Ind. 367, 83, 208 
 
 v. Howard, 7 Mo. App. 377, 311, 312 
 
 S tailings v. Barrett, 26 S. C. 474, 596 
 
 Stamps v. Newton, 3 How. (Miss.) 
 
 34) l 3 
 
 Stanaford v. Parker (Kv.), 1^ S. W. 
 . Rep. 784, 7sC> 
 
 Stanard v. Brownlaw, 3 Mumf.( Va.) 
 
 229, 483 
 
 Standard Oil Co. v. Brctz, 98 Ind. 
 
 2 3*. 57- 
 
 Stanford v. Cronkhite, 114 Ind. 220, 7S1 
 lley v. Northwestern, etc., Ins. 
 Co., 95 Ind. 254. 398, 399, 640 
 
 Stanley v. Smith. 15 Ore. 505, 
 
 762 
 
 re to Pagt %. ] 
 
 Stanley v, Sutherland, 54 Ind. 339, 
 Stanton v. Ballard, [33 Mass. 404, 
 
 v. State, 74 Ind. 505, 500. 766, 
 
 v. State, s -' Ind. 1' 
 Stanton Co. v.CanfieUl, 10 Neb. 389, 
 Stark v. Jenkins, 1 Wash. Ty. 421, 
 
 v. Thompson, 3 J.J. Mar. (Ky.) 
 
 3 00 > 
 
 Starke v.Jenkins, 1 Wash. Ter.421, 
 
 Starkweather v. Kittle, 17 Wend. 20, 
 
 Starner v. State, 61 Ind. 360, 203, 
 
 Starr v. Cass, 23 Ind. 45S, 
 
 v. Hunt, 25 Ind. 313. 
 Starry v. Winning, 7 Ind. 311, 195, 
 
 Staser v. Hogan, 120 Ind. 207, 300, 
 373, 622, 669, 702, 756, 
 
 State v. Aarons (La.), 9 So. Rep. 
 114. 
 
 v. Acker, 52 N.J. L. 259, 
 v. Adams, 20 Kan. 311, 
 v. Adams. 84 Mo. 310, 
 v. Adamson (Minn.), 45 N. \V. 
 Rep. 152, 
 
 v. Adamson. 33 Minn. 196, 
 
 v. All Lee, 8 Ore. 214, 
 
 v. Ah Tong, 7 Nov. 148, 
 
 v. Allen, 94 Ind. 441, 
 
 v. Ailing, 12 Ohio, 16, 
 
 v. Anderson. 42 La. Ann. 474, 
 
 V. Anderson. 96 Mo. 241, 
 
 v. Anone, 2 Nott. c\: Mc. 27, 
 
 v. Armstrong, 35 Mo. App. 49, 
 
 v. Atkinson, 33 S. C. 100, 239, 
 
 v. Avery, 17 Wis. 672, 
 
 v. Aver. 27, N. II. 301, 
 
 v. Bagan, 41 Minn. 2S5, 
 
 v. Bailey, 16 Ind. 46, 
 
 v. Baker. 63 N. C. 276, 
 
 v. Baldwin, 70 la. 180, 
 
 v. Bancroft, 22 Kan. 170, 
 
 v. Banks. 48 Ind. 197, 
 
 v. Baoughem, 20 la. 497, 
 
 v. Barker. 43 Kan. 262, 
 
 v. Barrett, 40 Minn. 65, 
 
 v. Bartlett, 9 Ind. 509, 230, 234, 
 
 -54. 744. 
 v. Baxter, 2S Ark. 129, 
 v. Peck, Si Ind. 500, 
 v. Bennett. 7; Me. 590, 
 v. Berdetta, 73 Ind. 1S5, 231, 
 v. Berg. 50 Ind. 496, 
 v. Biddle, 36 Ind. 138, 433, 
 v. Billings, 23 L. Ann. 798, 
 v. Bird, 107 Ind. 154, 
 v. Blanch, 70 Ind. 204, 563, 
 v. Bloom. 17 Wis. 521, 
 v. Board, 25 Ind. 210, 
 
 6Sq 
 20S 
 767 
 
 5' ,J 
 703 
 11 1 
 
 23 
 
 9 1 
 605 
 
 27 s . 
 777 
 612 
 
 554 
 
 202, 
 669 
 
 345. 
 
 7 s - 
 
 57S 
 16 1 
 
 539 
 673 
 
 153 
 747 
 53S 
 618 
 238 
 250 
 754 
 547 
 250 
 40 
 257 
 5 6 7 
 6S0 
 690 
 592 
 
 579 
 130 
 
 5^ 
 
 •IN 
 698 
 
 5'7 
 23C. 
 
 74 r ' 
 5 
 592 
 765 
 2 39 
 30S 
 
 437 
 671 
 
 576 
 
 62 S 
 250 
 43S
 
 TABLE OF CASES. 
 
 CXI II 
 
 References 
 
 v. Board, 45 End. 501, 435, 437, 
 
 4.1 s - 59 J i 59 2 
 v. Board, 63 [nd. 497, 435, 591 
 
 v. Board, 66 End. 2 16, [88 
 
 Hoard, 92 End. [33, 360, 301 
 
 v. Board, 39 Kan. S^, 592 
 
 v. Bouche, 5 Blackf. [54, 237 
 
 v. Bradley, 29 Mo. App. 366, 44^ 
 
 v. Brady, i<>7 V C. 822. ' 578 
 
 \. Breaux, 32 La. Ann. 222, 528 
 
 v. Brecht, 4] Minn. 50, 679 
 
 v. Breese, 15 Kan. 123, 434 
 
 v. Britton, 102 Iiui. 214, 307 
 v. Brown, 44 End. 3-9, 77» - l 7 
 
 v. Brown, 71 Mo. 454, 5 
 
 v. Brown, 5 Ore. 119, S4 
 
 v. Brown, ^ S. C. 151, 251 
 v. Bruder, 35 Mo. App. 475, 120, 560 
 
 v. Buchler, 103 Mo. 203, 253 
 
 v. Burge, 7 la. 255, 792 
 
 v. Burnett, 119 End. 392 240 
 
 v. Burns, 14 Mo. App. 5S1, 159 
 
 v. Burns. 66 Mo. 227, 97 
 
 v. Burthe, 39 La. Ann. 32S, 249 
 
 v. Byrd, 93 N. C. 624, 326 
 
 v. Cady, 47 Conn. 44, 7S5 
 v. Cape Girardeau, etc., 73 Mo. 
 
 5 6 °. 437. 519 
 
 v. Cair, 37 Kan. 421, 754 
 
 v. Campbell, 67 Ind. 302, 234 
 
 v. Carter, 9S Mo. 176, 239 
 
 v. Caulfield, 23 La. Ann. 14S, 2^1 
 v. Chase, 41 Ind. 356, 87, 335, 462 
 v. Chastain, 104 N. C. 900, 1S3 
 
 v. Circuit, 31 N.J. L. 249, 620 
 
 City of Newark, 4 S N. J. L. 
 
 5*3 
 
 . Claire, 41 La. Ann. 1067, 530 
 
 . Clark, 16 Ind. 97, 791, 792 
 
 . Clark, 33 La. Ann. 422. 460 
 
 . Clayton,' 34 Mo. App. 563, 435 
 . Clement, 15 Ore. 237, 763 
 
 . Coghlen, S6 End. 404, 190, 192 
 . Coleman, 46 N.W. Rep. 664, 350 
 . Collins, 33 La. Ann. 152, 2 ;i, 2 ;2 
 . Collins, 70 N. C. 241, 5 j 1 
 
 . Collins, 93 X. C. 564, 657 
 
 . Connolly, 3 Rich. L. 337, 674 
 . Cooper, 103 Ind. 75, 239, 256 
 . Coulter, 46 Kan. 87, 673, 470 
 
 County Court, etc., 64 Mo. 
 
 434 
 430 
 765 
 679 
 
 2 2 2 
 
 439 
 
 are to Pages.] 
 
 State v. Cummins, 76 la. 133, 
 v. Cumming, 36 Mo. 2' > 3, 
 v.Cunningham, 101 Ind. 461, 
 v. I )ailv. i> Ind. 9, 
 
 v. Daubert, 42 Mi ». 242, 
 
 v. Daugherty, 59 Mo. 104, 
 
 v. Davey, 39 La. Ann. 507, 
 
 v. Davis, 4 Blackf. 345, 
 
 v. Davis, 73 Ind. 359, 146, 
 
 v. Davis, 41 la. 311, 
 
 V. Davis, 47 la. 63 |, 240, 
 
 v. ,Dav, 52 End. 483, 
 
 v. Delafield, (><> Wis. 264, 
 
 v. Delano, 34 Ind. 52, 105, 247. 
 
 101, 
 
 170, 
 
 Rep 
 
 County Judge, 5 la. 3S0, 
 Cowan. 7 Ired. L. 239, 
 Crawford, q<> Mo. 74, 
 Credle, 63 N. C. 506, 
 Cressinger, ss End. 499, 
 Cromwell (N. V.), 10 N. 
 • 2 7°» 
 Cucuel, 31 N. J. L. 249. 
 
 II 
 
 176 
 579 
 
 73, 
 
 v. 
 
 V. 
 V. 
 
 Atl. 
 v. 
 
 581,' 
 
 V. 
 V. 
 
 Demaree, So Ind. 519, 
 De Moss, 98 Mo. 340, 
 1 >enny, 1 [8 Ind. 382, 
 Dickerson, 9> N. C. 70S, 
 Dickson, 6 Kan. 209, 
 Dillon, 96 Mo. 56, 
 District Judge, 41 La. Ann. 
 
 Dogonia, 69 Mo. 4S5, 
 Dove, 10 Ired. L. 469, 
 Downs. 7 Ind. 2S3, 
 Drogomond, 55 Mo. 87, 
 Duffel, 4 La. Ann. 958, 
 Dufour, 63 End. ^67, 
 Dunlop. 65 N. L. 2SS, 
 Dumphey. 4 Minn. 43S, 
 Dver, 99 Ind. 420, 
 East, 88 Ind. 602, 116, 
 
 Easton, etc., Co. (Md.), 20 
 Rep. 242. 
 
 Elam. 21 Mo. App. 290, 
 Ellis. 41 La. Ann. 41, 
 Ely, 11 Ind. 313, 63,70, 
 
 Ely, 14 Ind. 291, 
 Emmerson, 74 Mo. 607, 
 Engle, 127 Ind. 457, 
 Ennis, 74 End. 17. 
 Ensey, 42 Ind. 480, 
 Ensign, 1 1 Neb. 529, 
 Evansville, etc., Co., 107 End. 
 
 64, 
 
 Ezekiel, 33 S. C. 115, 
 Farrar, mj X. C. 702, 176. 
 Farrell, 23 Mo. App. 170, 
 Ferguson, 42 La. Ann. 643. 
 Field. 37 Mo. App. 83, 4^8. 
 First Nat. Bank, 89 Ind. 302, 
 Fitch, 113 Ind. 478, 
 Fitzhugh, 2 Ore. 227. 
 Flad, 26 Mo. App. 500, 
 Fleming, 13 la. 4 \;, 
 Flemons, 6 End. 279, 
 Foster, 44 N.J. L. 378, 
 Foulkes, 94 Ind. 493, ^ 22 ' 
 Fowler, 41 La. Ann. 3S0, 
 
 657 
 
 4-'- 
 230 
 
 657 
 
 4'' 1 
 237 
 2 
 
 244 
 
 4 6 3 
 
 276 
 
 435 
 
 547 
 
 I 
 
 25 2 
 
 462 
 
 43 r ' 
 740 
 
 -54 
 
 25 1 
 
 4 ; '' 
 669 
 
 44" 
 
 iS 
 
 28 
 
 4.V 
 J 5 : 
 234 
 
 439 
 672 
 
 237 
 
 (.1 
 
 -.■>.■> 
 612 
 650 
 
 455 
 439 
 
 355 
 5" 
 
 75" 
 45'> 
 -43 
 7<'t 
 454 
 6«
 
 CX IV 
 
 T.M'.LE OF CASES. 
 
 Reft rences tt 
 
 State v. Frain, 82 Ind. 532, 239, 240 
 
 v. Frazer, 28 Ind. 196, 244, 253, 679 
 v. French, 2 Tin. (Wis.) r.8l, 58 
 
 v. Funck, 17 [a. 365, 527, 71S 
 
 v. Gallagher, r.6 La. Ann. 3SS, 7S9 
 v. Gallo, iS Ore. 423, 25 \ 
 
 v. Gannaway, 16 Lea. 124, 
 v. Garig (La.), S So. Rep. 934 
 
 4 
 
 79 2 
 619 
 
 657 
 
 248 
 62 1 
 
 v. Garrand, 5 Ore. 216, 
 v. Gaslin, 25 Neb. 71, 
 v. ( ray, 94 N. C. 841, 
 v. Gilmore, 28 Mo. App. 561, 
 v. Gleason, SS Mo. 582, 
 v. Goings, 100 N. C. 504, 
 v. Granville, 45 Ohio St. 264, 
 v. Gray, 54 Ind. 91, 
 v. Green, 16 la. 239, 
 v. Green, 112 Ind. 462, 
 v. Green, 42 La. Ann. 644, 
 v. Hall, 58 Ind. 512, 
 v. Hallowell, 91 Ind. 376, 1S3, 239, 
 
 240 
 v. Hamilton, 62 Ind. 409, 
 v. Hamilton, 27 La. Ann. 400, 
 v. Hammill, 6 La. Ann. 257, 
 v. llanna, S4 Ind. 1S3. 
 v. Harland, 74 Wis. 11, 
 v. Harmon, 31 Ohio St. 250, 
 v. I Iarper. 38 Ind. 13, 
 v. Harris, S9 Ind. 363, 354, 357 
 
 v. Harris. 39 La. Ann. 228, 750 
 
 v. Harrison, 5 Jones (N.C.) 115, 195 
 v. Hattabaugh, 66 Ind. 22^, 123, 
 
 H9» x 54 
 v. Hawes, 43 Ohio St. 16, 
 v. Hawkins, Si Ind. 4S6, 
 v. Hay, SS Ind. 274, 
 v. Hendrick, 62 la. 414, 
 v. Hightower, 33 S. C. 59S, 
 v. llinchman, 27 Pa. St. 479, 
 
 v. Holcombe, 41 La. Ann. 1066, 254 
 
 v. Hood, 7 Blackf. 127, 07 1 
 
 v. Hope, 100 Mo. 347, 254, 729 
 
 v. Horner, 10 Mo. App. 307, 437 
 
 v. Hosmer, 85 Mo. 553, 668 
 
 v. Houston, 35 La. Ann. 236, 460 
 
 v. Huffman, 16 Ore. 15, 572 
 
 v. Hughes, 15 Ind. 104, 219 
 
 v. Irish, 42 Ind. 506, 276 
 
 v.Jackson, 12 La. Ann. 679, 703 
 
 v. Jackson, 42 La. Ann. 1170, 578 
 
 v.Jackson, 32 S. C. 27, 556 
 
 v. Jacobs, 2S S. C. 29, 120 
 
 v. Jarvis, 20 Ore. 437, 251 
 
 v. Jefferson, 66 N. C. 309, 232, 531 
 
 v.Jeffries, 98 Ind. 31, 564 
 
 v. Johnson, S Blackf. 533, 237 
 
 v.Johnson, 102 Ind. 247, 232 
 
 V.Johnson, 105 Ind. 463, 9 
 
 231 
 258 
 616 
 217 
 9 
 578 
 -34 
 
 232 
 
 5 2 9 
 
 461 
 
 251 
 "7 
 
 5 
 
 -77 
 
 43 8 
 704 
 5 11 
 77i 
 
 99 
 
 6S1 
 
 re to Pages.] 
 
 State v. Jones. 61 Mo. 232, 
 
 v. Jones (N. C), 13 S. E. Rep. 
 
 1 12, 
 v. Jones, 97 N. C. 469, 
 v.Jones, 12 S. E. Rep. 657, 
 v. Jones, [I la. II, 112. 
 
 v. Judge, 21 La. Ann. 65, 
 v. Judge, 23 La. Ann. 29, 
 v. Judge, 29 La. Ann. 360, 
 v. Judges, etc., 41 La. Ann. 1012, 
 v. Julian, 93 Ind. 292, 
 v. Justices of Mocre Co., 2 Ired. 
 
 L. 430. 
 
 v. Kamp. in Ind. 56, 125, 
 
 v. Kansas City Court, 97 Mo. 
 
 33 1 . " I2 5- 
 
 v. Kaub, 15 Mo. App. 433, 
 v. Kern. 127 Ind. 465. 234. 
 
 v. Kill Buck Turnpike Co., 8 
 
 Ind. 71, 
 
 v. King, 42 La. Ann. 77, 
 
 v. Kinkaid, 23 Neb. 641, 
 
 v. Kinnav, 41 la. 424, 
 
 v. Kirkpatrick, 54 la. 373, 
 
 v. Klaas, 42 Ind. 506, 
 
 v. Kline, 54 la. 1S3, 
 
 v. Knight, 43 Me. 11, 
 
 v. Knight, 46 Mo. 83, 
 
 v. Knight, 31 S. C. 81, 
 
 v. Knowles, 34 Kan. 393, 
 
 v. Koslem (Ind.), 29N. E. Rep. 
 
 595. 34 ». 
 
 v. Krug, S2 Ind. 58, 
 v. Krug, 94 Ind. 366, 334, 
 
 v. Kutter, 59 Ind. 572, 
 v. Laughlin, 75 Mo. 35S, 
 v. Lawrence, 3S Mo. 535, 
 v. Lawrence, Si N. C. 522, 
 v. Leach, 120 Ind. 124, 
 v. Leach, 71 la. 54, 
 v. Lechman (S. D.), 49 N. W. 
 
 Rep. 3, 
 v. Lee, 29 Minn. 445, 
 v. Leeper, 70 la. 74S, 
 v. Lenig, 42 Ind. 541, 
 v. Leaver, 62 Wis. 3S7, 
 v. Leunig, 42 Ind. 541, 
 v. Lewis, 22 N. J. L. 564, 
 v. Lewis, 20 Nev. 2>Z7>i 
 v. Lieben, 57 Ind. 106, 
 v. Lindlev, 9S Ind. 4S, 
 v. Lowe, 21 W. Va. 7S2, 
 v. Lull, 37 Me. 246, 
 v. Lusk, 6S Ind. 264, 
 v. McCabe, 74 Wis. 4S1, 
 v. McDonald, 30 Minn. 9S, 
 v. McDuffie, 107 N. C. S85, 
 v. McGinnis, 17 Ore. 332, 
 v. McGuire, 40 La. Ann. 37S, 
 v. McKee, 109 Ind. 497, 161, 
 
 "7" 
 
 447 
 679 
 
 658 
 
 771 
 
 79 
 
 7- 
 44i 
 435 
 5 6 3 
 
 43S 
 126 
 
 43 r > 
 
 29 
 
 255 
 
 59 2 
 439 
 440 
 
 2 49 
 334 
 
 ■74 
 252 
 
 736 
 5S2 
 440 
 249 
 
 456 
 
 766 
 
 4 6 3 
 124 
 
 5*9 
 
 43 1 
 230 
 
 2 39 
 760 
 
 733 
 
 35 
 
 25 ! 
 
 239 
 
 745 
 54 » 
 421 
 699 
 379 
 2 55 
 250 
 
 537 
 23S 
 440 
 
 43 s 
 746 
 
 373 
 126 
 240
 
 TABLE OF CASES. 
 
 CXV 
 
 R, /. >■■ net - a 
 
 State v. McLaughlin, 77 End. 335, 
 
 v. McNamara, eoo Mo. ioo, 292 
 
 v. Madoil, 12 Fla. 151, 528 
 
 v. Maher, 71 I... 77. 517, 533 
 
 v. Mann, 83 Mo. 5S9, 529 
 
 v. Marsh, [19 I nil. 394, 775 
 
 v. Marsteller, S4 N. C. 727, 232 
 
 v. Mathews, 37 N. H. 450, 7 
 
 v. May, 4 Dev. 32S, 657 
 
 v. Mayo, 42 La. Ann. 637, 439 
 
 v. Meehan, 45 X.J. L. 1S9, 592 
 
 v. Meeker, 19 Neb. 444, 61 
 
 v. Megown, 89 Mo. 156, 43S 
 
 v. Mellor, 13 R. I. 666, 529, 57S 
 
 v. Moloney, 79 la. 413, 514 
 
 v. Merrill,' 16 Ark. 3S4, 7 
 v. Merriman (S. C), 12 S. E. 
 
 Rep. 619, 57S 
 v. Meyers, 99 Mo. 107, 254, 743 
 v. Michaels, S Blackf. 436, 
 v. Miller, 7 Ind. 275, 
 v. Miller, 63 Ind. 475, 65, 
 v. Miller, 100 Mo. 606, 
 v. Millin. 3 Nev. 409, 
 v. Mitchell, 31 Ohio St. 592, 
 
 1506 
 
 674 
 
 7i 
 
 2 s2 
 
 679 
 127, 
 
 4*5 
 
 674 
 
 441, 
 
 Montgomery, 2S Mo. 594, 
 Moore, 77 la. 449, 
 Moriarity, 20 la. 595, 453 
 
 Morrison, 103 Ind. 161, 504 
 
 Munchrath, 7S la. 26S, 52S, 736 
 Murdock, S6 Ind. 124. 66S, 756 
 Murphy, S Blackf. 49S, 234 
 
 Murphy, 41 La. Ann. 526, 439 
 Murrell, 33 S. C. S3, 24S 
 
 Musick, 71 Mo. 401, 45S 
 
 Mustard.' So Ind. 2So, 744 
 
 Nelson, 26 Ind. 366, 541 
 
 Nelson, 101 Mo. 477, 391 
 
 New- Brunswick, 42 N. J. L. 51, 5 
 New Orleans, 43 La. Ann. 
 
 650 
 Newkirk, So Ind. 131, 237, 255 
 v. Newlin, 69 Ind. 10S, 635 
 
 y. Noble, 11S Ind. 350, 3, 9, 14, 36 
 v. Northern Central" R. Co., iS 
 Md. 193, 303 
 
 y. Norton, 20 Kan. 506), 435 
 
 y. Nowland, 29 Ind. 212, 40S 
 
 y. O'Brien, 21 La. Ann. 265, 674 
 V. Oeder, So la. 72. 792 
 
 y. Olds, 19 Ore. 397, 612 
 
 y. One Bottle of Brandy, 43 Vt. 
 297. 217 
 
 v. Oyerholser. 69 Ind. 144, 234, 235 
 v. Owens, 63 Tex. 261, 592 
 
 y. Padgett, S2 N. C. 544, 232 
 
 v. Palmer, 40 Kan. 474, 679 
 
 v. Parker, 106 N. C. 711, 50S 
 
 v. Parkinson, 5 Nev. 15, 58, 179 
 
 >■■ to Pages. \ 
 
 \ . Parish, S3 Ind. 22^, 
 y. Parish fudge, 27 La. Ann. 
 
 1S4, 
 
 v. Paterson. 45 \ t. 308, 
 
 V. Patterson, etc., Co., 43 N. J. 
 
 L- 505- 
 
 v. Patton, 13 I red. L. 421, 
 
 y. Peak. 85 Mo. I90, 
 
 y. Phares, 2 j \V. Va, 657, 
 
 v. Pierce, 14 Ind. 302, 
 
 v. Poison, 29 la. 133, 
 
 v. Potts, 20 Neb. 7 159, 
 
 v. Powell, 40 La. Ann. 241, 
 
 v. Prater, 26 S. C. 613, 
 
 v. President, etc., 44 Ind. 350. 
 
 v. Probasco, 46) Kan. 310, 64S, 
 v. Pugsley, 75 la. 742, 
 v. Quarrel, 2 Bay. 150, 
 v. Rabourn, 14 Ind. 300, 
 v. Ray, 53 Mo. 345, 
 v. Raymond, 11 Nev. 98, 
 v. Reed, 
 
 v. Republican River, etc., Co., 
 20 Kan. 404, 
 
 v. Richmond, 6 Fost. (N. II.) 
 
 232, 
 
 v. Riggs, 92 Ind. 336, 
 
 v. Rightor, 36 La. Ann. 112, 
 
 v. Rising, 15 Nev. 164, 
 
 v. Robbins, 124 Ind. 30S, 
 
 v. Roberts, 40 Ind. 451, 
 
 v. Rockwell (la.), 4 S N. W. 
 Rep. 721, 
 
 v. Roderigas, 7 Nev. 328, 
 
 v. Rook, 42 Kan. 419, 
 
 v. Rousch, 60 Ind. 304, 
 
 v. Ruhlman, in Ind. 17, 
 
 v. Ruth, 21 Kan. 5S3, 
 
 v. Saxon, 42 Ind. 4S4, 
 
 y. Scbeper (S.C.), n S. E. Rep. 
 623, 
 
 y. Seyerson, 7S la. 653, 
 
 v. Se\ier, 117 Ind. 33S, 
 
 v. Shaw, 5 La. Ann. 342, 
 
 v. Sheldon, 2 Kan. 322, 
 
 v. Shelledy. S la. 477, 
 
 v. Shoemaker, 101 N. C.690, 
 
 v. Slavin, 16 Mo. App. 541, 
 
 v. Slick, S6 Ind. 501, 
 
 y. Smith, 49 Conn. 376, 
 
 y. Smith. S Ind. 4S5, 
 
 v. Smith. 35 Kan. 618, 
 
 v. Smock. 20 Ind. 1S4, 665, 
 
 v. Snodgrass, 98 Ind. 546), 
 
 V. Soudriette. 105 Ind. 306, 
 
 v. Spencer, 92 Ind. 115, 64. 70, 
 
 v. Squaires, 2 Nev. 226, 
 
 \ . Svjuiiv^. 2'' la 340, 
 
 591 
 
 553 
 
 73' 
 777 
 
 2.- 1 
 
 44=; 
 
 :'■> 
 743 
 610 
 
 527 
 761 
 
 578 
 239 
 
 !3 
 
 43S 
 
 519 
 
 121 
 603 
 
 578 
 679 
 
 234 
 635 
 
 6ll 
 23') 
 
 1 
 
 674 
 
 610 
 
 61 
 440 
 
 57 a 
 254 
 
 792 
 670 
 
 - 1
 
 <. \V1 
 
 TABLE OF CASES. 
 
 [References a 
 v.St. Louis Court of Appeals, 
 87 Mo. 569, 46 
 
 v. St. Paul, etc., Co., 92 Ind. 42, 6SS 
 v. Stain, 82 Me. |7-\ 
 v. Staker, 3 End. 570, 
 v. Stebbins, 2c; Conn. 463, 
 v. Stein, 13 Neb. 529, 
 
 V. Stewart, 32 Mo. 379, 
 
 v. Stewart, 68 Wis. 234, 
 
 v. Straw, 33 Me. 554, 
 
 v. Supervisors, 3S Wis. 554, 
 
 v. Sutterfield, 54 Mo. 391, 
 
 v. Swails, 8 Ind. 524, 
 
 v. Swarts, 9 Ind. 221, 187, 203, 195, 
 
 75 1 
 v. Tcmplin, 122 Ind. 235, 74, 407, 
 488, 494, 749, 783 
 v. Tennison, 42 Kan. 330, (>2t, 
 
 v. Terre Haute, etc., Co., 64 
 Ind. 297, 177. 265, 26S, 275, 469 
 
 v.Thomas, m Ind. 515, 536, 538 
 v. Thomas, 99 Mo. 23^, 657 
 
 v. Thompson, 81 Mo. 163, 325, 450 
 v. Thorn, 28 Ind. 306, 109, 467 
 
 v. Tickel, 13 Nev. 33, 618 
 
 v. Tompkins, 71 Mo. 613, 619 
 
 v. Tool, 4 Ohio St. 553, 441 
 
 v. Town of Tipton, 109 Ind. 73, 592 
 v. Tp. of Union, 37 N. J. L.26S, 514 
 v. Trout, 75 Ind. 503, 320 
 
 v. Turner, 18 S. C. 103, 
 v. Trustee, etc., 5 Ind. 77, 
 v. Trustees, etc., 114 Ind. 3S9, 
 v. Tumey, 81 Ind. 559, 233, 237, 239 
 v. Turner, 6 La. Ann. 309, 528 
 
 v. United States, 8 Blackf. 252, 323 
 v. Vail, 53 Mo. 97, 431 
 
 v. Van Valkenburg,6o Ind.302, 234 
 v. Vanderbilt, 116 Ind. 11, 236 
 
 v. Voorhies, 41 La. Ann. 567, 647 
 v. Wagner, 78 Mo. 644, 250 
 
 v. Wakefield, 15 Atl. Rep. 1S1, '12 
 v. Walker, 26 Ind. 346, 239 
 
 V. Wallace, 41 Ind. 445, 231, 439 
 v. Walters, 64 Ind. 226, 124, 154, 
 
 2 43- 2 44< 34 s > 3 6 «, 443 
 v. Wamire, 16 Ind. 357, 250 
 
 v. Wapucca Bank, 20 Wis. 640, 498 
 v. Ward, 75 la. 637, 239 
 
 v. Warner, 55 Wis. 271, 436 
 
 v. Wasson, 99 Ind. 261, 480 
 
 v. Watson, Si la. 380, 729 
 
 v. Watts, S La. (0. S.) 76, 435 
 
 v. Weaver, 123 Ind. 512, 290, 745 
 V. Weaver, 104 N. C. 75S, 252 
 
 v. Webber, 22 Mo. 231, 763 
 
 v. Weil. 89 Ind. 286, 240 
 
 v. Weiskittle. 6] Md. 48, 755 
 
 v. Weld. 39 Minn. 426, 101 
 
 v. Wenzel, 77 Ind. 428, 58S 
 
 791 
 
 V 
 
 409 
 674 
 
 3 2 °. 
 
 V 
 
 59 2 
 
 "3. 
 
 43i 
 
 266 
 
 V 
 
 V 
 
 663 
 
 V 
 
 434 
 64 
 
 V 
 
 V 
 
 235 
 
 V 
 
 745 
 59 2 
 
 59 1 
 
 re to Pages.] 
 State v. Westmoreland. 29 S. C. 1. 
 
 v. Wheeler, 65 la. 619, 
 
 Whitewater, etc., Co., 8 Ind. 
 
 13. 
 Whitman, 14 Rich. L. (S. C.) 
 
 Whitney, 7 Ore. 386, 291, 
 Whitten, 23 Mo. App. 459, 
 Williams, 99 Mo. 291, 
 Wilson, 50 Ind. 4S7, 239, 
 
 Wilson, 52 Ind. 166, 
 Wilson, 8 la. 407, 
 v. Wilson, 40 La. Ann. 751, 
 v. Wilson, 104 N. C. 868, 
 v. Winter Park, 25 Fla. 371, 
 v. Wiseman, 68 N. C. 203, 
 v. Wolever, 127 Ind. 306, 12,299, 
 v. Wood (Ind.), 30 N. E. Rep. 
 
 3°9> 
 
 v. Woodward, 89 Ind. no, 
 
 v. Worden, 46 Conn. 349, 
 
 v. Wyatt, 76 la. 328, 
 
 v. Wyse, 32 S. C. 45, 
 
 v. Yount, 4 Ind. 653, 
 
 v. Younts, 89 Ind. 313, 
 
 v. Zanesville, etc., Co., 16 Ohio 
 
 St. 30S, 
 State Bank v. Abbott, 20 Wis. 599, 
 v. Dutton, 11 Wis. 371, 
 v. State, 1 Blackf. 267, 
 State Ins. Co. v. Schreck, 27 Neb. 
 
 5 2 7> 
 State Reservation, Matter of, 102 
 
 N.Y.734, 
 Stayner v. Joyce, 120 Ind. 99, 575, 
 Steamboat Lake of the Woods v. 
 
 Shaw, 2 Gr. (la.) 91, 
 Steamer Virginia v. West, 19 How. 
 
 182, 
 Steamship Co. v. Tugman, 106 U. 
 
 S. 118, 
 Stearlv's Appeal, 3 Grant, 370, 
 Stearns v. Warner, 2 Aik. ( Vt.) 26, 
 
 v. Wright, 51 N. H. 600, 
 Steel v. Grigsby, 79 Ind. 1S4, 
 
 v. Thompson, 3S Mo. App. 312, 
 Steele v. White, 2 Paige, 478, 
 Steeple v. Downing, 60 Ind. 47S, 
 Steer v. Little, 44 N. H. 613, 
 Stefani v. State, 124 Ind. 3, 
 Steffen v. Jefferis (Mont.), 22 Pac. 
 
 Rep. 152, 
 Steffy v. People, 130 111. 98, 
 Stegman v. Berryhill, 72 Mo. 307, 
 Stenman v. Crull, 26 Ind. 436, 215, 
 Steinau v. Cincinnati, etc., Co. 
 
 (Ohio), 27 N. E. Rep. 545, 
 Steinkamper v. McManus, 26 Mo. 
 
 App. 51, 
 
 124. 
 
 125 
 240 
 
 41S 
 
 5 2 8 
 
 647 
 266 
 440 
 
 54 1 
 
 256 
 
 529 
 581 
 120 
 101 
 
 27,2 
 424 
 
 751 
 592 
 
 2.5 1 
 252 
 
 530 
 
 -37 
 306 
 
 59 * 
 217 
 658 
 
 273 
 547 
 
 61 
 6i5 
 
 323 
 104 
 
 631 
 
 J 3 
 
 765 
 647 
 6S7 
 492 
 129 
 487 
 537 
 554 
 
 3S3 
 254 
 158 
 
 525 
 
 59i 
 574
 
 TABLE OF CASES 
 
 CX V.l 
 
 References are to Pa 
 
 St.l'e v. Lovejoy, [25 111. 352, 31 2 
 
 Steikc/ v. Li Rose, 70 Ind. 435, 
 Stenz('. v. Sims, 25 111. App. 538, 453 
 Sterr.c e. First Nat. Bank, 79 End. 
 560, 39S 
 
 v. Vert. 111 Ind. 40S, 10S Ind. 
 21,2, 126 
 
 Sterntwrger v. Bernheimer (N.Y.)> 
 
 24 N . I». 'Rep. 311, 291 
 
 Steplu'.is \ . Bradley, 23 Fla. 393, 176 
 
 v. Bradley, 24 Fla. 201, 6S1 
 
 v. Koonce, to6 N. C. 255, 454, 456 
 
 v. Railroad. 96 Mo. 207, 657 
 
 v. Regenstein, No Ala. 561, 571 
 
 v. Stephens, 51 I ml. 542, 379, 446 
 
 Stephenson v. Ballard, 82 Ind. 87, 294 
 
 v. Doe, 8 Blackf. 50S, 61 
 
 v. State, no Ind. 358, 517. 53°> 53L 
 
 578, 678, 689 
 
 v. Stiles, 3 N.J. L. 543, 736 
 
 Stevens v. Campbell, 21 Ind. 471. 596 
 
 v. Higginbotham (Utah). 23 
 
 Pac. Rep. 757. 
 
 v. \e\ )1t, 1 5 Ind. 224, 
 
 v. Phctnix Ins. Co., 41 N. Y. 
 
 J 49> 
 
 v. Stevens, 127 Ind. 560, 531, 
 
 v. Webb, 7 C.k P. 60, 
 
 v. Wolf. 77 Tex. 215, 
 Stevenson \ , Felton, 99 N. C. 58, 
 
 v. Miller. 2 Lilt.306, 
 
 v. Sherwood, 22 111. 23S, 
 
 v. State, 71 Ind. 52, 
 
 v. Steinberg, 3 2 Cal. 373. 
 Stewart v. Babbs, 120 Ind. 56S, 
 
 v. Codd, 58 Md. S6, 
 
 v. Huntington Bank, 11 S. X R. 
 267, 
 
 v. Rankin, 39 Ind. 161, 770, 
 
 v. Salamon, 97 U. S. 364, 
 
 v. Smith, in Ind. 526, 
 
 v. State, 24 Ind. 142, 
 
 v. State, in Ind. 554, 16S, 682 
 
 v. State, 113 Ind. 505, 40S, 636, 760 
 
 v. Stewart, 31 Ala. 207, 31 
 
 v. Stringer, 41 Mo. 400, 456 
 
 v. Taylor, 68 Cal. 5, 450 
 
 Sticknev. Ex parte. 40 Ala. 160, 438 
 
 Stinson v. O'Neal, 32 La. Ann. 947, 120 
 
 445 
 
 782 
 
 617 
 
 560 
 291 
 300 
 666 
 30S 
 6 39 
 274 
 114 
 
 743 
 77 1 
 15" 
 535 
 759 
 
 v. Ross, 51 Me. 556, 
 Stipp v. Claman, 123 Iml. 532, 
 
 v. Spring Mill, etc., Co., 34 
 Ind. 16, 
 Stith v. Fullinwieder, 40 Kan. 73, 
 Srttt v. State, 91 Ala. 10. 
 Stix v. Sadler. 109 Ind. 254, 21 
 
 195 
 536 
 
 573 
 615 
 
 717 
 53 2 > 
 
 713 
 
 Stockman v. Riverside, etc., Co., 64 
 , Cal. 57, 407 
 
 atockton v. C< leman, 42 Ind. 281, 407 
 
 Stockton v. Lockwood, 82 In I 
 
 \ . Stockton, )o Ind. 22 --. 
 
 Stockwell v. State, [oi Ind. [, 
 
 t"- I 
 v. Thomas, 76 I nd. 
 
 Stoddard v . Chambers. 2 How. 284, 
 v. Emery. 1 28 l'a. St. | 
 v. Johnson, 75 Ind. 20, 
 v. Roland, 51 S. C. 3 (.2, 
 v. 1 Etna, etc., Ins. Co., 10 W. 
 
 v.l 546, 
 
 Stone v. Brown, 1 16 Ind. 78, 712. 
 v. Spellman, [6 Tex. 432, 
 
 v. State. \2 Ind. |.l8, 2 ; . 
 
 v. State. 75 Lid. 235. 320. 
 
 Stoops v. Greensburgh, etc., Co., 10 
 
 Ind. 17, 
 Stoots v. State, 10S Ind. 415. 
 Stoppenbach v. Zohrlaut, 21 Wis. 
 
 285, 
 Storm v. United States, 94 U.S. 76. 
 Story, Ex parte, 12 Pet. 339, 438, 
 Story v. O'Dea, 23 Ind. 3 
 Stott v. Smith, 70 Ind. 298, 678, 767, 
 Stoughton v. State. 2 Ohio St. 562, 
 
 v. State, 5 Wis. 291, 
 Stout v. Calver, 6 Mo. 254, 
 
 v. Curry, no Ind. 314, 294, 
 
 v. Gully, 13 Col. 604, 
 
 v. Indianapolis, etc., Co.. 41 
 Ind. 149, 
 
 v. MePheeters. 84 Ind. 585. 215. 
 
 v. St.,:,'. 0,, [nd. 1. 254, 255. 
 
 v. State, 7S Ind. 492, 
 
 v.Turner. 102 11111.418,395,396, 
 
 v. Woods, 70 Ind. 10S, 
 Stovall v. Ranks, 10 Wall. 583, 
 Stowe v. Querner, L. R. 5 Exch. 
 
 1.55. 
 Strader v. Manville, 33 Ind. in, 
 
 2 2, 
 
 Strang \. Beach, n Ohio St. 2S3, 
 Strangev. Lowe. 8 Blackf. 243, 
 
 v. Tyler. 95 Ind. 395, 
 Stratton v. Commonwealth, S4 Kv. 
 
 v. Graham, 68 Cal. 168, 
 v. Kennard, 74 Iml. 302, 769, 
 v. Lockwood, 1 Irul. App. 3S0, 
 \ . Paul, 10 la. 1 |i 1, 
 
 Strauss v. Cooeh. 47 Ohio St. 11;. 
 
 Stribling v. Brougher, 70 Ind.. 328, 
 v. Splint Coal Co., 31 W. Ya. 
 82, 
 
 v. Tripp, 86 Ind. [66, 
 
 Strickland v. Draughan, 9] N. *. 
 
 Striker v. Kelly. 2 Denio, 3:'. 
 Stringer v. Davis, 30 Cal. 510, 
 
 455 
 
 77' 
 
 76 
 15° 
 
 674 
 
 7 SS 
 295 
 
 495 
 
 '43 
 5 2 5 
 530 
 
 - ; 5 
 7"1 
 
 7"' 
 281, 
 
 oo 1 
 
 17 s 
 
 -H 
 208 
 
 733 
 
 5 J /
 
 .vm 
 
 TABLE OF CASES 
 
 l\, ft rences <"■• to Pagi s. \ 
 
 _.t v. Frost, n6 Ind. 177. 738 
 
 Northwestern, etc., Co., S2 
 Ind. too, 480 
 
 v. Francis, 3 ( >hio, 277, -' 1 
 
 \ . Lemon, etc., Co.. 9 Nev. 257. 789 
 \ . United States, [33 U. S. 29 
 Stroch v. Com., 90 Pa. St. 272, 396 
 
 Strong, Ex parte. 20 Pick. 484, 433. 515 
 Strong v. Downing, 34 I ml. 300 599 
 v. Manf. C<».. <> Hun. 528, 517 
 
 v. Makeever, 102 Ind. 57S, 108 
 
 v. State. 1 05 Ind. 1, 253 
 
 v. Strong, 102 N. Y. 09. 589 
 
 v. Taylor School Tp., 79 Ind. 
 
 566 
 
 v. Willey, 104 U. S. 512. 646 
 
 Stropes v. Board, 72 Ind. 42, 714. 715 
 
 er v. City of Ft. Wayne. 100 
 
 Ind. 443, 41S 
 
 Strough v. Gear, 48 Ind. 100, 640. 641, 
 
 645 
 Struber v. Rohlfs. 36 Kan. 202. 447 
 
 Stuart v. Gay, 127 U. S. 51S, 112 
 
 v. Haven, 17 Neb. 211, 539 
 
 v. Laird, 1 Cranch. 299, 58, 479 
 
 v. Palmer. 74 X. Y. 1S3, 121, 148 
 Stuckey v. Fritsche, 77 Wis. 327, 597 
 Stnddart, In re. 30 Minn. 553, 68 
 
 Studley v. Hall, 22 Me. [98, 621 
 
 Studwell v. Shapter, 54 N. Y. 249, 58S 
 Stull v. Howard, 26 Ind. 456, 67S. 733 
 Stults v. Zahn, 117 Ind. 297, 328 
 
 Slump v. Fraley, 7 Ind. 679, 761, 777 
 Stumph v. Bauer, 76 Ind. 157. 712 
 
 Stunz v. Stunz, 131 111. 309, 44 
 
 Sturgeon v. Gray, 96 Ind. 166, 88 
 
 Sturgis v. Rogers, 26 Ind. 1, 207, 209, 
 
 213- 3 oS > 3°9' 3". 3 J 4 
 Sturm v. State, 74 Ind. 27S, 231. 2 17 
 Stutsman v. Barringer, [6 Ind. 363, 579 
 Sturtevant v. Wineland. 22 Neb. 702. 447 
 Suarez v. Manhattan Ry. Co., 60 
 
 Hun. 584, 547, 655 
 
 Sullivan v. Frazell, 4 Rob. (N. Y.) 
 
 v. Haug, 82 Mich. 548, 
 
 v. McMillan (Fla.), S So. Rep. 
 
 6 34 
 303 
 
 ! - ' '■ 
 
 v. 
 
 Mo. 
 
 544 
 676 
 
 Missouri Pacific R. Co., 97 
 
 "3. 
 
 \. () Conner. 77 Ind. 149, 7SS 
 
 v. State. 52 Ind. 309, 690 
 
 V. State. 46 N. J. L. 446, 534 
 
 Sullivan, Town of, v. Phillips, no 
 
 Ind. 320. 0114 
 
 Suman v. Cornelius. 78 Ind. 506, 792 
 Summers v. Greathouse, S7 Ind. 
 
 526, 619, 624. 686 
 
 Hick-. 134 Pa. St. 
 
 Summerson 
 
 566, 
 
 Sumner v. Coleman. 20 Ind. 486, 596 
 v. Cook. 12 Kan. [62, 68] 
 
 v. Goings, 74 Ind. 293, 170. 182, 511 
 Sunbolf v. Alford, 3 Mess. >S: Wels. 
 
 248, 540 
 
 Sunier v. Miller. 105 Ind. 393, 630 
 
 Supervisors v. Amight, 54 Mass. 672. 7 
 Supreme Lodge, etc., v. Johnson, 7^ 
 
 Ind. 1 10, 747 
 
 Supreme Lodge of Knights of the 
 
 Golden Rule v. Rose, 62 Tex. 321. 675 
 Sutherland v. Hankins, 56 Ind. 343, 
 
 773- 784 
 
 v. Putman ( Ariz.), 24 Pac. Rep. 
 
 320, 164, 20S 
 
 v. Yenard, 34 Ind. 390, 689 
 
 Sutherlin v. State, 10S Ind. 3S9, 254. 
 
 255, 792 
 
 Sutton v. McConnell. 46 Wis. 269. 4^6 
 
 Suvdam v. Hovt, 1 Dutch. (N. Y.) 
 
 230, 462 
 
 v. Williamson. 20 How. 427, 754 
 
 Swaggard v. Hancock, 25 Mo. App. 
 
 59 6 ' 754 
 
 Swafford v. Whipple, 3 G. Greene, 
 
 261, 615 
 
 Swales v. Grubbs, 126 Ind. 106, 575, 626 
 Swan v. Clark, So Ind. 57, 76S 
 
 Swank v. Nichols, 24 Ind. 199, 578 
 
 Swann v. Wright, no I*. S. 590, 112 
 Swasey v. Adair, 83 Cal. 136, 324, 445 
 Swearengen v. Gulick, 67 111. 20S, 672 
 v. Leach, 7 B. Monr. 285, 700 
 
 Sweeney, Ex parte, 126 Ind. 5S3, 24, 29, 
 31, 45, 46, 48, 50, 51, 53, 57, 356 
 
 v. State, 51 Ind. 201, 
 \ . Tarney, 123 Ind. 560, 
 
 Sweeney v. Reilev. 42 Cal. 402, 612 
 
 Sweet v. Merki, 27 111. App. 245, 99 
 
 Sweetzer v. McCrea, 97 Ind. 404, 75S 
 
 Swem v. Green, 9 Col. 358, 758 
 
 Swift v. Allen, 55 111. 303, 1S0 
 
 v. Edson, 5 Conn. 163, 596 
 
 v. Mulkey, 14 Ore. 59, 624 
 
 v. Mulkey, 17 Ore. 532, 266 
 
 v. Ratliff* 74 Ind. 420, 535 
 
 v. Tousey, 5 Ind. 190, 101, 102 
 
 Swigart v. State, 67 Ind. 2S7, 530 
 
 Swinburn v. Swift, 15 W. Va. 483, 441 
 
 Swinnev v. Nave, 22 Ind. 17 s . 635 
 
 Sword v. Keith, 31 Mich. 247, 578 
 
 Svlvis v. Sylvis, n Col. 319, 402 
 
 Szorn v. Lamar, 71 Ga.S5, 499 
 
 Taber v. Grafmiller, 109 Ind. 206, 678 
 Huston, 5 Ind. 322, 
 
 149. 360 Tabor v. Judd, 62 N. H. 2S8, 
 692 
 
 619, 621, 
 740
 
 TABLE OF CASES. 
 
 C X ! X 
 
 . ,//-,■ to /' 
 
 Tabor v. Staniels, 2 Cal. (c 701 
 
 Tachau v. Fiedeldey, s i Ind. 54, 287, 
 
 295. 7- s 
 raggart v. revanny, 1 Ind. App. 
 
 », 532, 646 
 
 Talbird v. Whippee, 31 S. C. 600. .\ \- 
 Tallmrt v. Berkshire Lite Ins. Co., 
 
 So Irul. 434. 122. 361, 7 1 2 
 
 Talcott v. Johnson, 41 Ind. 201. 
 Talkington v. Parrish, 8g Ind. 202, 640 
 Tapley v. McGee, 6 Ind. 56, 
 Tarhell v. Bowman. 103 Mass. 341, 634 
 Tarbox v. Sughrue, 36 Kan. 225, 592 
 Tardy v. Howard. 12 Ind. 404. 712 
 
 Tarkin^ton v. Link. 2j Neb. B26, 601 
 v. Purvis. 1 jS Ind. 1S2, 712, 713. 719 
 Tate v. Booe, 9 Ind. 13, 56] 
 
 v. Ohio, etc., Co., 10 Ind. 174. 604 
 
 5 2 3 
 
 256 
 701 
 440 
 646 
 638 
 
 46S 
 619 
 
 620 
 
 Tatem v. Potts. - Blackf. ^34 
 
 Taulbv v. State, 38 Ind. 437, 
 
 Tayloe v. Riggs, 1 Pet. ^91, 
 
 Taylor. Ex parte, 14 How. 3, 
 
 Taylor v. Adair. 22 la. 279. 
 v. Adams. 58 Mich. 187, 
 v. Baltimore, etc., Co., 33 W 
 Va. 39, 
 v. Betsford, 13 Johns. 487, 
 v. Board, 120 Ind. 121, 04. 203, 444 
 v. Burk, 91 Ind. 252, 219. 222, 22^. 
 
 692 
 v. Carpenter, 2 Sandf. Ch.603, 673 
 v. Clavpool, si Blackf. 557, 603 
 
 v. Cole, 3 T. *R. 292, 5SS 
 
 v. Collins, 51 Wis. 123. 
 v. Davis (Tex.), 13 S. W. Rep 
 642. 
 
 v. Deverell, 43 Kan. 469, 
 v. Elliott, 52 Ind. 588, 
 v. Elliott, 53 Ind. 441, 
 v. Fletcher, 15 Ind. 80, 
 v. Flint, 35 Ga. 124. 
 v. Greely, 3 Me. 204, 
 v. Johnson, 113 Ind. 164, 243, 394. 
 395. 396 
 v. King, ^2 Mich. 42. 599 
 
 v. Lohman, 74 Ind.4iS, 480 
 
 v. Nichols, S6 Tenn. ^2, 402 
 
 v. Penquite. 35 Mo. App. 389, 547 
 v. Savage, 1 How. I". S. 282, 136 
 v. Savage, 2 How. U. S. 375, 136 
 v. Savage, 2 How. I". S. 394, 136 
 v. Shelkett, 66 Ind. 297. 777 
 
 v. Shew, 39 Cal. 536, 463 
 
 v. Short, 40 Ind. 506, 637 
 
 v. Skrine, 2 Const. (S. C.) 69 
 v. Smith, 4 Ga. 133, 494 
 
 v. State, 82 ( ra. 578, 4^4 
 
 v. State (Ind.), 29 N. E. Rep. 
 4 J 5> 550 
 
 v. State. 16 Tex, App. 514, 320 
 
 77 f 
 
 7:,- 
 
 "5 
 
 140 
 
 767. 769 
 765 
 
 5-7 
 
 164 
 
 n 
 
 626 
 
 7' " 
 540, 70S 
 163. 693 
 
 75« 
 
 Taylor v. ^-, am \.<\ igati m I 
 
 105 N. C.4S4, 34; 
 
 v. \\ illiams, 120 Ind. 414, 
 
 v. Wing, 83 N. Y. 527, 
 
 v. \\ ootan, 1 Ind. App. 1 
 Teal v. Spangler, 7. Intl. 380, 2;;. 
 
 7 2 5> 7 2 
 Tedrowe v. Esher. 56 Ind. 443, 
 
 Tegeler v. Shipman, t,t, la. 194. 
 
 Teikert v. Wilson, 38 Minn. 341, 
 
 Telford v. Garrels, 132 111. 550, "ju. 
 
 v. Wilson, 71 Ind. 555, - 
 
 Temple v. Lasher, 39 Ind. 203, 
 
 v. Superior Court, 70 Cal. 211. 437 
 Templeman v. Steptoe, 1 Munf. 339 
 Templeton v. Hunter. 10 Ind.3So. 37s 
 
 v. Yoshloe, 72 Ind. 134. 043 
 
 Tennessee, etc., Co. v. East Ala- 
 bama, etc., Co., Si Ala. 94, 
 Ten Eyck. Estate of. 36 Hun. 575, 
 Terre Haute, etc.. Co. v. Barr. 31 
 111. App. 57, 
 
 v. Bissell, 10S Ind. 113. 
 
 v. Brunker, 12S Ind. 542, 
 
 v. Clark. 73 Ind. 16S, 
 
 v. Jackson. 81 Ind. 19, 
 
 v. Soice, 128 Ind. 505, 
 
 v. Teel. 20 Ind. 131. 
 v. Wilson, 16 Ind. 102. 
 Terre Haute v. Terre Haute, etc., 
 
 Co.. 94 Ind. 305. 
 Terre Haute, City of. v. Hudnut. 
 
 H2 Ind. 542. 702. 703. 739 
 
 Terrill v. Jennings, 1 Met. (Kv. 1. 
 
 45°. 11- 
 
 Terry, Ex parte, 12S U. S. 2S9, 7 
 
 Terry v. Abraham. 93 U. S. 38, 
 
 v. Hatch. 93 U. S. 44. 79 
 
 v. Shively, 93 Ind. 413. 294. 580 
 Terwilliger v. Murphy. 104 Ind. 32. 603 
 Tesh v. Commonwealth, 4 Dana 
 
 (Ky.), 522. 
 Test v. Larsh, 76 Ind. 452, 126, 3^0. 401. 
 
 : 
 
 Testard v. State, 26 Tex. App. 200. 536 
 Territory \. Bryson, 9 Mont. 32. 
 
 v. Burgess, S Mont. ^7. 
 
 v. Ely, 6 Dak. [28, 
 
 v. Haxhurst, 3 Dak. 205. 
 
 v. links, b Mont. 13^. 19 Pac. 
 Rep. 386, 
 
 v. Langford, 3 Wash. Tv. 27.1. 
 
 v. Laun. 8 Mont. 322. 
 
 v. M ilr< ". . 7 Mont. 559, 
 
 v. Pratt, 6 Dak. 483, ' 
 
 v. Reberg, 6 Mom. y ■-. 
 
 v. Scott. 7 Mont. 407. 
 
 v. Shearer. 2 Dak. 
 Teters \. Hinder.-. [9 [nd. 93, 274. 732 
 Thacher \ Jones, 31 Me. 
 
 - 
 59 2 
 
 -3' 
 3-4 
 530 
 345 
 252
 
 cxx 
 
 TABLE OF CASES. 
 
 [References a 
 
 Thames Loan, etc., Co. v. Beville, 
 
 ioo Ind. 309, 159, 273, 292, 581, 704, 
 
 71S. 764, 775 
 
 Tharp v. Jarrell, 66 Ind. 52, 628 
 
 Thatcher v. Humble, 67 ind. 444, 590 
 
 v. Ireland, 77 Ind. 4S6, 1S7 
 
 Thayer v. Society, etc., jo Pa. St. 60, 709 
 
 v. Burger, 100 Ind. 262, 293, 581 
 
 Theirman v. Vahle, 32 Ind. 400, 71 
 
 Thickstun v. Baltimore, etc., Co., 
 
 119 Ind. 26, 790 
 
 Thiebaud v. Dufour, 57 Ind. 59S, 64, 219, 
 
 229 
 Thigpen v. Mundine, 24 Tex. 2S2, 671 
 Third Great Western Turnpike Co. 
 
 v. Loomis, 32 N. Y. 127, 517 
 
 Thorn v. Savage, 1 Blackt". 51, 313 
 
 v. Wilson, 24 Ind. 323, 17') 
 
 Thoma v. State, 86 Ind. 182, 105, 247, 
 
 261, 276 
 Thomas v. Anderson, 55 Cal. 43, 96 
 v. Dale, S6 Ind. 435, 724 
 
 v. De Gaffenraid, 27 Ala. 651, 555 
 v. Farley Mfg. Co., 76 la. 735, 734 
 v. Georgia, etc., Co., 3S Ga. 222, 324 
 v. Griffin, 1 Ind. App. 4157, 64S, 
 
 743. 76s, 766 
 v. Hamilton, 71 Ind. 277, 60S 
 
 v. His Creditors, 1 Harr. (N. 
 
 J) 272, T 435 
 
 v. Kelley, 27 111. App. 491, 454 
 
 v. Merry, 113 Ind. 83, 285, 791 
 
 v. Musical, etc., Union, 121 N. 
 Y. 45, 217,591 
 
 v. Ruddell, 66 Ind. 326, 640 
 
 v. Schee, So la. 237, 624 
 
 v. Service, 90 Ind. 12S, 105, 266, 276 
 v. Simmons, 103 Ind. 53s, 357, 494 
 v. Wyatt, 9 S. & M. 308, 272 
 
 Thomason v. Odum, 31 Ala. 10S, 701 
 v. Wood, 42 Cal. 416, 475 
 
 Thomlinson v. Briles, 101 Ind. 53S, •,$(>. 
 
 57'-'7"l 
 Thompson, In re, 11 Paige, 453, 142 
 
 Thompson v. Adams, 2 Ind. 151, 87 
 v. Adams, 82 Va. 672. 78 
 
 v. Butler, 95 U. S. 694, 50, 51 
 
 v. Campbell, 52 Ala. 5S3, 133 
 
 v. Davis 29 Ind. 2'' ). 295 
 
 v. Deprez, 96 Ind. 67, 174 
 
 v. Doty, 72 Ind. 336, 504 
 
 v. Egleton, ^ Ind. 300, 75S 
 
 v. Ellsworth, 1 Barb. Ch. 624, 152 
 v. Erie, etc., Co., 45 N. Y. 46S, 601 
 v. Erie, etc., Co., 9 Abb. Pr.(N. 
 Y.) 212, 697 
 
 v. Hawley, 16 Ore. 251, 491 
 
 v. Lassiter, 85 Ala. 223, 581 
 
 v. Lea. 28 Ala. ^3, 323 
 
 v.Lowe, 111 Ind. 272. 507,609 
 
 re to Pages.] 
 
 Thompson v. Lynch, 43 Cal. 4S2, 7S0 
 
 v. Lyon, 1 1 Cal. 39, 560 
 
 v. McKim, 6 Har. ..v J. 302, 21 
 
 v. Oskamp, 19 Ind. 399, 635 
 
 v. Pershing, S6 Ind. 303, 533 
 
 v. Sanders, 11S N. Y. 252, 398 
 
 v. Shannon, 9 Tex. 536, 662 
 
 v. State, 29 Tex. App. 20S, 761 
 
 v. Thompson, 9 Ind. 323, 572, 702 
 
 v. Thompson, 34 Ind. 94, 555 
 
 v.Thompson, 24 Wis. 515, ^2^ 
 
 v. Thornton, 41 Cal. 626, 513 
 
 v. Toohev, 71 Ind. 296, 398 
 
 v. Tracy, 60 N. Y. 31, - 441 
 
 v. United States, 103 U. S. 4S0, 436 
 
 v. Weeks, 32 111. App. 642, 591 
 
 v. White, iS Ind. 373, 767 
 
 v. Wilson, 34 Ind. 94, 510, 613 
 
 Thornton, Ex parte, 46 Ala. 3S4, 437 
 
 Thornton v. Baker, 115 R. I. 553, 126 
 
 Thorp v. Reily, 57 N. Y. Sup. Ct. 
 
 589, ' 291 
 
 v. Hanes, 107 Ind. 324, 52 
 
 Thorwegan v. King, 11 1 U. S. 549, 572 
 
 Thotwenin v. Rodiguez, 24 Tex. 468, 14S 
 
 Thrasher v. Postel, 79 Wis. 503, 648 
 
 Threishel v. McGill, 28 111. App. 78, 680 
 
 Thurston v. Boardman, 4S Ind. 258, 268 
 
 v. Kennett, 22 N. H. 151, 615 
 
 Tibbetts v. O'Connell, 66 Ind. 171, 298, 
 
 785 
 v. Penley, 83 Me. 1 iS, 62S 
 
 Tice v. Hannibal, etc., Co., 35 Mo. 
 
 4 l6 > 534 
 
 Tichenor v. Tichenor, 45 N. J. Eq. 
 
 664, 60 i 
 
 Tierney v. Union Lumber Co., 47 
 
 W T is. 24S, 519 
 
 Tiffany v. Gilbert, 4 Barb. 320, 392 
 
 Tilghman v. Little, 13 111. 239, 56 
 
 Tillinghast v. Nourse, 14 Ga. 641, 663 
 Tilton v. Beecher, 59 N. Y. 176, 519 
 v. Vail, 117 N. Y. 520, 75 
 
 Tillman v. Averett, 82 Cal. 576, 109 
 
 Tilman v. Harter, 3S Ind. 1, 76S 
 
 Timmons v. McOnnoughhay, S Ind. 
 
 483. 75° 
 
 Tindal v. Drake, 60 Ala. 177, 9 
 
 Tinder v. Association, 47 Ind. 351, 401 
 Tipper v. Commonwealth, 1 Met. 
 
 (Ky.)6, 765 
 
 Tipping v. Robbins, 71 Wis. 507, 4S9 
 Titus v. Relyea, S Abb. Pr. Rep. 177, 13 
 Titusville Iron Works v. Keystone 
 
 Oil Co., 130 Pa. St. 211, 489 
 
 Tobin v. Young, 124 Ind. 507, 34, 703 
 
 Todd v. Daniel, 16 Pet. 521, 117. 139 
 
 v. Fenton, 66 Intl. 25, 694. 695 
 
 v. Jackson, 75 Ind. 272, 296, 297 
 
 v. Wilson, 80 Ind. 429, 276
 
 TABLE OF CASES. 
 
 C X X 1 
 
 \Referem i 5 are to /' 
 
 Daniels, 2 1 I ml. 
 
 689 
 
 579, 698 
 416, 587 
 
 3961 735 
 624 
 
 Toledo, etc., Co 
 
 256 
 v. Goddard, 25 Ind. 185, 
 v. Levy, 127 Ind. 16S, 
 v. Milligan, ^ Ind. 505, 
 v. Rathmann, 7S Ia.'28S, 
 v. Rogers, 4S Ind. 427. 754, 756, 757 
 v. Shuckman, 50 Ind. 42, 661 
 
 v. Tilton, 27 Ind. 71, 395 
 
 Toledo, etc., Works v. Work, 70 
 
 Ind. 253, 399.63S 
 
 Toler v. Keiher. Si Ind. 3S3, 575, 663, 
 
 694, 695 
 Tollen v. Read, ^2 N. V. Supr. 46, 612 
 Tomer v. Densmore, S Neb. 3S4, 786 
 Tomkin v. Harris, 90 Cal. 201, 435 
 
 Tomlinson v. Briles, 101 Ind. 538, 536, 
 
 571, 704 
 v. Hamilton, 27 Ind 139, 393, 394 
 
 662 
 
 791 
 
 5 21 
 612 
 
 266 
 
 v. Wallace, 16 Wis. 224, 
 Toney v. Toney, 73 Ind. 34, 
 Tooker v. Arnoux, 76 N. Y. 397, 
 Toome's, Estate of, 54 Cal. 509, 
 Topeka, etc., Co. v Martin, 59 Kan 
 
 75°> 
 
 Torr v. Torr, 20 Ind. 11S, 2S1, 524, 567 
 Torry v. Robertson, 24 Miss. 192, 141 
 Totten's Appeal, 40 Pa. St. 3S5, 546 
 •Touchard v. Crow, 20 Cal. 1^0, 761 
 Towell v. Hollweg, Si Ind. 154, 101, 
 274, 413, 467 
 Towles, Ex parte, 4S Tex. 413, 
 Towne v. Bossier, 19 La. Ann 
 
 v. Wiley, 2^ Vt. 354, 
 Towns v. Smith, 115 Ind. 4S0, 
 
 v. Stoddard, 30 N. H. 23, 
 Townsand v. Townsand, 21 111 
 Townsend v. Chapin, S Blackf. 32S, 6S9 
 
 v. Davis, 1 Ga. 495, 272 
 
 v. Townsend, 60 Mo. 240, 4^8 
 
 Tracewell v. Farnsley, 104 Ind. 497, 50S, 
 
 562 
 Tracev v. Altmj'er, 46 N. Y. t^S, 
 
 v." First Nat. Bank, 37 N. Y. 
 
 523. 
 
 Tracy v. Holcomb, 24 How. 426, 
 Traders Ins. Co. v. Carpenter, S5 
 Ind. 350, 12' 1. 287, 2 i): ^ 451, 
 
 v. Newman, 120 Ind. 554, 
 Train v. Gridlev, 36 Ind. 241 
 
 162, 677 
 
 5 8 9 
 
 626 
 
 64S 
 
 149, 671 
 
 664 
 
 269 
 
 499 
 
 Trammel v. Chipman, 74 Ind. 
 
 403i 
 
 474- 
 394 
 
 v. Simmons, S Ala. 271, 
 Traphagen v. Levy, 45 X. J. Eq, 
 
 44 8 - 
 Travelers Ins. Co. v. Leeds. 58 Ind. 
 
 444- 
 v. Noland, 97 Ind. 217. 
 
 456 
 604 
 637. 
 7-7 
 267, 
 562 
 1 1 1 
 
 601 
 
 756 
 
 ;r>2 
 
 Traveler^, etc., Co. v. Harvc. 
 
 Va. 949, 7 ,,, 
 
 Travis v. Travis, 48 Hun. 343. 320 
 
 Travwick v. Martin Brown & Co., 
 
 71 Tex. 522, 159 
 
 Tra\ ser v. Trustees of Indiana A 3- 
 
 bury University, 39 Ind. 536, 38, 596 
 Treadway v. Cobb, io Ind ^9 
 
 TreadweU v. Whittier. So Cal. 575, 
 Treat v. Ililes, 75 Wis. 265, - 7 
 
 v. Ililes, 77 Wis. 475, ij- 
 
 v. Jamison, 20 Wall. 652, 266 
 
 Trebby v. Simmons. 38 Minn. 508, 
 Trega v. Pierce, 119 Pa. St. 13 9, 
 Trenholm v. Morgan, 2S S. C.268, 646 
 
 Trentman v. Ed ridge, 
 
 9S Ind. 52;. 
 
 4°3- 
 
 v. Nell, 124 Ind. 503, 
 
 v. Wiley, 85 Ind. 33, 579, 
 
 Trenton Mutual Lite Ins. Co. v. 
 
 Johnson, 24 N.J. L. 576, 
 Trew v. Gaskill, 10 Ind. 265, 
 Tribble v. Poore. 28 S. C. 565, 
 Trickey v. Schlader, 52 111. 78, 
 Trigg v. Taylor, 27 Mo. 245, 
 Triggs v. Jones, 46 Minn. 277, 
 Trimble v. Pollock, 77 Ind. 576, 
 Tripp v. Elliott. 5 Blackf. 168, 45 
 
 v. Cook, 26 Wend. 143, 513, 
 
 v. Duane, 74 Cal. S5, 
 Tripp, etc., Co. v. Martin (Kan.), 
 
 26 Pac. Rep. 424, 
 Trippe, Ex parte, 66 Ind. 531, 
 Trisler v. Trisler, 54 Ind. 172, 
 Trittipo v. Morgan. 99. Ind. 269, 
 Troost v. Davis, 31 Ind. 34, 
 Trotter v. Neal, 50 Ark 340, 
 Trout v. Small, 10 Ind. 3S0, 
 
 v. State, 107 Ind. 580, 
 
 v. West, 29 Ind. 51, 292, 
 
 Troutman v. Neff, 124 Ind. 503, 
 Trover v. State, 115 Ind. 331, 620, 
 
 301, 
 
 ■ , 
 
 549 
 '54 
 455 
 127 
 4 11 
 733 
 640 
 
 • 5° 
 
 7SS 
 69 
 
 716 
 
 769 
 40S 
 718 
 
 210 
 
 7 s " 
 Trueblood v. Knox. 73 Ind.310, 306. }07 
 
 v. Nicholson. 52 Ind. 420, 447 
 
 Truelock v. Friendship Lodge, 7<; 
 
 la. 3S4, 
 Truitt v. Baird, 12 Kan. 420, 
 
 v. Truitt, 37 Ind. 514, 
 
 v. Truitt, 38 Ind. 10, 160, 
 
 Trullenger v. Todd, 5 Ore 
 Trullinger v. Webb, 3 Ind 
 Truman v. McCollum, 20 Wis. 360, 
 
 v. Scott. 72 Ind. 258, 123, 154. 
 
 443< 
 
 Truscott v. King, 6 N. Y. 147, 414. 
 Trustees v. Brooklyn Fire Ins., 
 How. Pr. 44S, 
 
 v. Greenough, 105 U. S. 527, 
 
 v. Hihler, 85 111. 409, 
 
 v. Love, 29 111. App. 615, 
 
 445 
 
 533 
 
 53° 
 4*3 
 361, 
 
 754 
 593 
 
 699 
 
 11-
 
 CXX11 
 
 TABLE OF CASES. 
 
 [References a 
 Trustees, etc., v. Odlin, 8 Ohio St. 
 293, 
 
 Trustees ol East Hampton v. Kirk, 
 68 N. Y. 459. 
 
 Trvon v. Baker, 7 Lans. 511, 
 
 Tucker v. Call, 45 Ind. 31, 
 v. Constable, 16 Ore. 239, 
 v. Conrad, 103 Ind. 349. 
 \. Gordon, 7 I low. (Miss.) 306, 96 
 v. Henniker, 41 N. H. 317, 622 
 
 v. Jones. S Mont. 225. 73S, 761 
 
 v. Leland, 75 N. Y. 186, 514 
 
 v. Sandridge, 82 \*a. 532, 70 
 
 v. Smith. 68 Tex. 473, 762 
 
 v. South Kingstown, 5 R.I. 55S, 621 
 
 6 34 
 
 550 
 5§7 
 7S5 
 373 
 274. 7\; 
 
 v. White, 19 Ind. 253, 101 
 
 Tull v. David, 27 Ind. 377, 614 
 
 Tull v. Pope, 69 X. C. 1S3, 791 
 
 Tupper v. Wise, no U. S. 39S, 80 
 
 Turnbull v. Ellis, 35 Ind. 422, 769 
 
 Turner v. Althaus, 6 Neb. 57, 40 
 
 v. Armstrong, 9 Bradw. 24, 306 
 
 v. Booker, 2 Dana, 334, 141 
 
 v. Campbell, 59 Ind. 279, 566 
 
 v. Cool, 23 Ind. 56, 615 
 
 v. Fendall, 1 Cranch. 117, 509 
 
 v. First Nat. Bank, 26 la. 562, 635 
 
 v. First Nat. Bank, 30 la. 191, 458 
 
 v. Halm, 1 Col. 2^, 527 
 
 v. Hine, 37 la. 500, 447 
 
 v. Morrison, n Cal. 21, 788 
 
 v. Norton, 31 111. App. 423, 591 
 
 v. People, 3^ Mich. 363, 745 
 
 v. Quinn, 92 N. C. 501, 449 
 
 v. State, 40 Ala. 21, 119 
 
 v. White, 77 Cal. 392, 610 
 
 v. Yates, 16 How. 14, 200, 533, 
 
 743- 7 61 
 Tuskaloosa Co. v. Logan, 50 Ala. 
 
 503, 77° 
 
 Tweed's Case, 16 Wall. 504, ^73 
 
 Tweed v. Davis, 4 T. & C. (N.Y.) I, 438 
 
 Twogood v. Franklin, 27 la. 239. 495 
 
 Tyerman v. Smith, 6 E. t \: B. 719, 424 
 
 Tvin v. Halstead, 74 N. Y. 604, 514 
 
 Tyler v. Bowlus, 54 Ind. 333, 7S5 
 
 v. Healev, 51 Cal. 191, 519 
 
 v. Waddingham, 58 Conn. 375, 713 
 
 v. Willis, 33 Barb'. 327. 398 
 
 Tyrrell v. Baldwin, 78 Cal. 470. 445 
 
 Tyson, In re, 13 Col. 4S2, 102 
 
 v. Milwaukee, etc., Co., 50 Wis. 
 
 78, 483 
 
 v. Rickard, 3 Hair. & J. 109, . 643 
 
 v. Tyson, 100 N. C. 3C0, 6S3 
 
 u 
 
 E 'hi v. Bingaman, 78 Ind. 36*,. 661 
 
 Uland v. Carter, 34 Ind. 344, 17S 
 
 re to Pages.) 
 
 L'lman v. Baltimore, etc., Co.. 72 
 
 Md. 587. 121 
 
 Ulrich v. Drischell, SS Ind. 354, 48S, 595 
 
 v. Ilervey. 26 Ind. 107, i(>2 
 
 Umlauf v. Umlaut", 103 111. 651, 79 
 
 Underbill v. Dennis, 9 Paige, 202, 143 
 
 Underwood v. McDuffie, 15 Mich. 
 
 361, 7 
 
 v. Pack, 23 W. Va. 704, 495 
 
 v. Riley, 19 Wis. 412, 481 
 
 v. Sample, 70 Ind. 446, 470 
 
 In fried v. Baltimore, etc., Co., 34 
 
 W. Ya. 260, 647 
 
 Union, etc., Co. v. Buchanan, 100 
 Ind. 63, 554. 570, 577, 7<>° 
 
 v. Fray, 35 Kan. 700, 626 
 
 v. Moore, 80 Ind. 458, 536, 692 
 
 Union Bank v. Forrest, 3 Cranch. 
 C. C.21S, 102 
 
 v. Mott, 39 Barb. 180, 556 
 
 v. Mott, 27 N. Y.633, 587 
 
 ETnion Nat. Bank v. Kupper, 63 N. 
 
 Y. 617, 190 
 
 Union Pacific Ry. Co. v. Botsford, 
 
 11 Sup. Ct. Rep. 1000, 540 
 
 Union School Tp. v. First Nat. 
 
 Bank, 102 Ind. 464, 470, 491, 492 
 
 Union Tel. Co. v. Dickinson, 40 
 
 Ind. 444, 72 
 
 United Lines Tel. Co. v. Stevens, 
 
 67 Md. 156, 93 
 
 United States, Ex parte, 16 Wall. 
 
 699. 439 
 
 United States v. Adams, 9 Wall. 
 
 661, 182 
 
 v. Addison, 6 Wall. 291, 338 
 
 v. Armijo, 5 Wall. 444, 112 
 
 v. Arnold, 1 Gall. 348, 310 
 
 v. Arredondo, 6 Pet. 691, 12 
 
 v. Barnard, 1 Ariz. 319, 676 
 
 v. Bassett, 21 How. 412, 3S8 
 
 v. Boyd, 5 How. 29, 638 
 
 v. Boyer, 7 Fed. Rep. 193, 529 
 
 v. Boutwell, 17 Wall. 604, 440 
 
 v. Breitling, 20 How. 252, 727 
 
 v. Bromley, 4 Utah, 498, 679 
 
 v. Burroughs, 3 McLean, 405, 674 
 v. Carey, no E T . S. 51, 743, 757 
 v. Colt, Peters, C. C. 145, 35 
 
 v. Curry, 6 How. 106, 91, 104, 128 
 v. Davis, 6 Blatch. 464, 250 
 
 V. Drapier, iS Wash. L. J. 532, 314 
 v. Duff, 6 Fed. Rep. 45, 696 
 
 v. Edwards, etc., Comrs., 5 
 
 Wall. 563, 435 
 
 v. Emholt, 105 U. S. 414, 21 
 
 v. Ferreira, 13 How. 40, n, 5 
 
 v. Gibert, 2 Sumn. 19, 699 
 
 v. Gomez, 1 Wall. 690, 97, 98, 104 
 v. Gomez, 3 Wall. 752. 439
 
 TABLE OF (J ASICS. 
 
 C X X . 1 1 
 
 f Referent es a 
 United States v. Groesbeck, \ Utah, 
 
 487» -'5-\ 679 
 
 v. Guthrie, 17 How. 284, 435 
 
 v. Hawkins, 10 Pet. 1^5, 714 
 
 v. Hoskins, 5 Mackey, 47S, 2-17 
 
 v. Hudson, 7 C ranch. 34, 7 
 
 v. Jarvis, 3 Wood & M. 225, 750 
 
 v. Kirbv, 7 Wall. 482, 105 
 
 v. Knight, 1 Black, 4S4, 451 
 v. Knox County, 39 Fed. Rep. 
 
 757, 462 
 
 v. Mc Masters. 4 Wall. 6S0, 731 
 
 v. Mingo, 2 Curtis C. C. 1, 534 
 
 v. Morillo, 1 Wall. 706, 444 
 
 v. Neverson, 1 Mackey, 152, 531 
 
 v. Norton, 91 U. S. 1566, 232 
 
 v.Parrott, Mc All (U.S.), 447, 163 
 
 v. Phillips, 6 Pet. 776, 125, 444 
 
 v. Rickett, 2 C ranch. C.C.5<53, 311 
 
 v. Sacramento, 2 Mont. 239, 415 
 
 v. Salentine, S Biss. 404, 579 
 v. Schooner Peggy, 1 Cranch. 
 
 I0 3- 73 
 
 v.Tenney (Ariz.),SCrim. Law. 
 Mag. 486, 577 
 
 v. Winchester, 2 McLean, 135, 697 
 v. Wonson, 1 Gall. (U. S.) 5, 15 
 v. Yates, 6 How. 605, 444, 633 
 
 United States Bank v. Smith, 11 
 
 Wheat. 171. 392, 644 
 
 United States, etc., Co. v. Martin, 
 
 43 Ka »- 5 26 i 155 
 
 v. Rawson, 106 Ind. 215, 395 
 
 University v. Bank, 92 N. C. 651, 74 
 Untereiner \. Miller, 29 La. Ann. 
 
 435- 91 
 
 t in uh v. State, 105 Ind. 117, 2^2 
 
 I'rbanski v. Manns. S7 Ind. 585, 179 
 
 Urton v. Luckev, 17 Ind. 213, 768 
 
 Urochlan Tp. Road, 30 Pa. St. 157, 61 
 
 V 
 
 Vail v. Dining, 44 Mo. 210, 431 
 
 v. Halton, 14 Ind. 344, 10S 
 
 v. Jones, 31 Ind. 467, 420 
 
 v. Lindsay. 67 Ind. 52S, 112, 142 
 
 v. McKernan, 21 Ind. 421, $$3 
 
 v. Owen, 19 Barb. 22, 286 
 
 v. Rinehart, 105 Ind. 6, 635 
 
 Valle v. Harrison, 93 U. S. 233, 
 
 Valencia v. Couch, t,2 Cal. 339. 52 } 
 
 Vallette v. Whitewater, etc., Co., 4 
 
 McLean, 192, 601 
 
 Van Allen v. Spadone, 16 Ind. 319, ^20 
 Van Brunt v. Greaves, ^: Minn. 68, 677 
 Van Cleve v. Boler, 34 Ind. 538, 27O 
 Van Dusen v. Kendleburger/44 Ind. 
 
 2S2. j, s 
 
 Van Hook v.Whitlock, 26 Wend. 43. 41 • 
 
 re to Images.) 
 
 Van Leuven v. Lyke, 1 X Y 
 Van Marks v. Ilotchkisv, ., Abb. 
 
 Dec. 484, 
 Van Meter v. Barnett, 119 Ind. 35, 
 Van Neste \ . Conover, =; How. Pr. 
 
 (O. S.) 14S, 
 Van Nest v. Latson, 19 Barb. C04. 
 Van Orman v. Merrill, 27 la. 47^. 
 Van Reinsdyk v. Kane. 1 Gall. 371. 
 Van Sickle v. Erdelmeyer, 36 Ind. 
 
 262, 
 Van Slyke v. Schneck, 10 Paige, 
 
 301, 
 
 v. Trempealeau, etc., Co., 39 
 
 Wis. 390, 
 Van Steenwyck v. Miller. 18 Wis. 
 
 3-°> 
 Vance v. Cowing, 13 Ind. 460, 
 v. Schayer, 76 Ind. 194, 
 
 v. Vance, 74 Ind. 370. 
 Vandall v. Vandall. 13 la. 247. 
 Vandercook v. Williams, 106 Ind. 
 
 345- 9< 
 
 Vanderkarr v. State, 51 Ind. 91, 
 
 161, 164, 172. 
 Vanderpool v. Valkenburgh. 6 N 
 
 V. 190, 
 Vanderveer v. Holcomb, 17 N. J. 
 
 Eq. 547. 
 \ andevoort v. Gould. 36 N. Y. 639. 
 Vandivens v. Dollins. 49 Ind. 216, 
 Vandoren v. Kimes, 29 Ind. 582, 
 Vanliew v. State, 10 Ind. 3S4, 
 Vann v. Rouse, 94 N. Y. 401, 
 
 v. State, S3 Ga. 44, 530, 
 
 Vanness v. Bradley. 29 Ind. 3S8. 
 Vannoy v. Duprez, 72 Ind. 26, 
 
 v. Klein, 122 Ind. 416, 660, 
 
 Vansittart v. Taylor, 4 E. & B. 911 . 
 Vantilburgh v. Shann, .\ Zabr. 740. 
 Vanvabry, In re. v. Staton, 88Tenn. 
 
 334' 
 \ anvalkenberg v. Vanvalkenberg, 
 
 90 Ind. 433. 1(7. 291, 
 
 Varn v. \\ illiams, 30 S. C ■ 
 Varnum \'. Hart. 47 Hun. 18, 
 Vass v. Commonwealth, 3 Leii, r h 
 
 7SC. 
 \'as^c \-. Smith. 6 Cranch. 225. 
 Vater v. Lewis. 36 Ind. 2$ 
 Vawter v. Gillilar.d, 55 Ind. 27S 
 Vaughan v. Ferrall, 50 Ind. 221. 
 
 v. Godman, 103 Ind. 499. 
 Vaughn v. Harp, 49 Ark. 160, 9. 
 
 Veachv. Pearce, 6 Ind. 4S. 
 Veatch V. State. 60 Ind. 291, 231. 
 Venable v. Bank. : Pet. 107. 
 Veneman v. McCurtain 1 Nel 
 
 N. W. Rep. 955, 
 Wrbeck \. Verbeck. ( Wis. 1^7. 
 
 58l 
 
 ; l 
 
 601 
 
 94 
 648 
 
 81 
 480 
 6 39 
 
 . 59, 
 
 <>oi 
 
 ■ :< 
 
 I69 
 576 
 715 
 
 73- 
 
 1-4 
 
 440 
 
 ; 7t 
 453 
 
 785 
 
 I s " 
 
 37 
 
 54' l 
 
 601 
 
 769
 
 CX XIV 
 
 TABLE OF CASES. 
 
 [References a 
 
 Verger v. Roush, i Neb. 113, 9- 
 
 VermilHon v. Nelson, 87 Ind. 194, 775 
 Vermilya v. Davis, 7 Blackf. 158, 630 
 Vermilye v.Vermilye, 32 Minn.499, 73 
 Veronee v. Bell (S. C), J - s - E - . 
 
 Rep. 664, 44<> 
 
 Very v. Watkins, 23 How. 469, 509 
 
 Vick v. Maulding, 1 How. (Miss.), 
 
 217, 349 
 
 Vickers v. Leigh, 104 N. C. 24S, 55° 
 Vickeryv. McCormick, 117 Ind. 594, 703 
 Viele v Germania Ins. Co., 26 la. 
 
 615,616 
 
 Vie'ra v. Dobyns (Cal.), 24 Pac. 
 
 Rep. 1S1, £ tt 447 
 
 Villabolos v. United States, 6 How. 
 
 81, 92 
 
 Vincennes, etc., Co. v. White. 124 
 
 Ind. 376, J60 
 
 Vincent v. Evans. 1 Met.(Ky.) 247. obi 
 Vinton v. Baldwin. 95 Ind. 433. 7°^ 
 
 Virginia Comm'rs, Ex parte, 112 
 
 U.S. 177, „ «S 
 
 Vitoreno v. Corea (Cal.). 25 lac. 
 
 Rep. 420, 447 
 
 Vitrified, etc., Co. v. Edwards. 135 
 
 Mass. 591, 5 2 5 
 
 Vizzard v. Taylor, 97 Ind. 90, 154 
 
 \ ogel v. Harris, 112 Ind. 494, 537, 75° 
 v. State, 107 Ind. 374, x oi 
 
 Voiles v. Voiles. 51 Ind. 3S5, 349 
 
 Volger v. Sidener, 86 Ind. 545, ^ 759 
 Volkening v. De Graaf, 81 N. Y. 
 
 268, S 2 l 
 
 Voltz v. Newbert, 17 Ind. 1S7, 521, 62b 
 Vonderweit v. Centerville, 15 Ind. 
 
 447. 46 
 
 Von Glahan v. Von Glahan, 40 111. 
 
 73- l84 
 
 Voorhees v. Hank, 10 Pet. 449, 12 
 
 v. Earl, 2 Hill. 28S, 589 
 
 v. Jackson, 10 Pet. 449, 670 
 
 Vose v. Cockcroft, 44 N. Y. 415, 4H 
 
 v. Muller, 23 Neb. 171, ° 2 ° 
 
 v. Phillbrook, 3 Story, 335, 601 
 
 Voss v. Eller, 109 Ind. 260, 7 Sl 
 
 Vreton v. Beltzore, 17 Neb. 399, 75 1 
 
 W 
 
 Waarich v. Winter, 33 Ill.App.36, 554 
 
 Wabash, etc., Co. v. Goodwine, iS 
 
 Bradw. 65, 35° 
 
 v. Nice, 99 Ind. 152, 395, 7 S 5 
 
 v. People, io6 111. 652, 7 6 5 
 
 v. Rookes, 90 Ind. 581, . 4 lS 
 
 v. Tretts, 96 Ind. 4^0. 692 
 
 Wabash Rx.Co.x. Savage, no Ind. 
 
 156, 66 7 
 
 re to Pages.] 
 Wabash Ry. Co. 
 
 104 Ind. 154, 
 Wachendorf \ 
 
 Williamson, 
 
 4S0, 643 
 Lancaster, 61 la. 
 
 509, 
 Wachstetans v. State. 42 Ind. 166, 
 Wachstetter v. State, 97 Ind. 378, 
 
 17" 
 3*« 
 5*7. 
 537 
 
 Waddle v. Harbeck, 33 Ind. 231, 
 
 v. Magee, Si Ind. 217. 
 Waddingham v. Waddingham, 27 
 
 Mo. App. 596, 
 Wade v. First Nat. Hank, 11 Bush. 
 697, 
 
 v. Bryant (Ky.), 7 S. W. Rep. 
 
 597, 
 
 Wadkins v. Hill, 106 Ind. 543, 
 
 Wafer v. Ilamill, 44 Kan. 447, 
 
 Wagar v. Peak, 22 Mich. 368, 
 
 Wagner v. Kastner, 79 Ind. 162, 
 
 \ . State, 116 Ind. iSl, 
 
 v. Wagner, 73 Ind. 135, 
 
 v. Winton, 122 Ind. 57. 
 
 v. Winter, 122 Ind. 57, 2 
 
 Waggoner v. Eiston, 37 Ind. 357. 
 
 Wagoner v. Wilson, 10S Ind. 210, 
 
 Wainright v. Burroughs, 1 Ind, 
 
 App. 393, 7°9 
 
 Wainscott v. Silvers, 13 Ind. 497 
 
 597 
 ci8 
 
 34° 
 
 757 
 399 
 7S1 
 770 
 45, 50 
 610 
 
 39 6 
 416 
 
 16, 527 
 
 789 
 
 77 2 
 
 718 
 
 -95 
 
 Wait v. Van Allen, 22 N. Y. 319, 61,^91 
 
 Wakeman v. Jones, 5 Ind. 454, 
 Walburn v. Babbitt, 16 Wall. 577, 
 
 Walden v. Bodley, 14 Pet. 156, 
 Waldo v. Richter, 17 Ind. 634, 
 Waldhier v. Hannibal, etc., Co., 71 
 
 Mo. 514. 
 Wales v. Miner, S9 Ind. 11S, 
 Walker v. Davis, 1 Gray, 506, 
 v. Dunspaugh, 20 N. Y. 170, 
 v. Granite Bank, 19 Abb. Pr. 
 
 111 
 
 7-9 
 57 1 - 
 574 
 
 573 
 300 
 
 5S7 
 744 
 588 
 
 537 
 696 
 
 v. I [eller, 73 Ind. 46, 299, 335, 606 
 
 786 
 v. Hill, in Ind. 223, 108, 124, 154, 
 171, 274, 361, 443 
 
 v. Houlton, 5 Blackf. 34S, 
 v. Johnson, 96 U. S. 424, 
 v. Larkin, 127 Ind. 100, 
 v. Owen, 79 Mo. 563, 
 v. Popper, 2 Utah, 96, 
 v. Scott, 102 N. C. 487, 
 v. Scott, 106 N. C. 56, 
 v. Sprncer, 86 N. Y. 162, 
 v. State, 91 Ala. 32, 
 v. State, 23 Ind. 61, 
 v. State, 26 Ind. 346, 
 v. State, 102 Ind. 502 
 
 675 
 
 573 
 566 
 411 
 
 73 5 
 
 400 
 64 
 663, 747 
 -3 1 
 54 1 
 1S1, 1S2, S3°> 
 678 
 v. State. 9 Tex. App. 200, 7& 1
 
 TABLE OF CAMS 
 
 CX XV 
 
 A\ i, rences are to Pages.] 
 
 Walker v. Steele. (21 Iiul. (.36, i}. 219, 
 221, 2 
 
 r '3 ' 
 
 5° 
 621 
 
 535 
 345 
 490 
 
 597 
 79 < 
 
 453 
 
 421 
 
 506, 570 
 
 66 
 
 274- 
 
 94- 
 
 v. Turner, 27 Neb ' 
 
 v. United States, 1 Wall. [82, 
 
 v. Walker, 1 1 ( ra. 20 \. 
 
 v. Walker. 1 ( Ga. 2 )- - . 
 Wall v. Bagby, [26 [nd. 37 
 
 v. Dodge, 3 U tah. [68, 
 
 v. Galvin, 80 I nd. \ \7. 
 
 v. State. So Ind. 1 \6, 
 Wallace v. Cart./, 32 S.C.314, 
 
 v. Cox, 71 111. 548, 
 
 v. Cravens, 34 lnd. 534, 
 
 v. Douglas, [05 N. C. 42, 
 
 v. Exchange Bank, 120 Ind. 
 265. 746, 7S2 
 
 V. Harris, 32 Mich. 380, 
 
 v. Kirtley, 9S Ind. 4S5, 
 
 v. McVey, 6 Ind. 300, 
 
 v. Morss, 5 Hill. 391, 
 
 v. Stutsman, 6 Dak. I, 
 
 v. Taunton St. Ry. Co., 119 
 Mass. 91, 
 
 v. Tumlin, 42 Ga. 462, 
 
 V. Wilder, 13 Fed. Rep. 707, 
 
 v. Williams, 59 Hup.. 628, 
 Waller v. Wood. IOI Ind. 13S, 
 Walling v. Beers, 120 Mass. 54S, 
 
 v. Burgess, 122 Ind. 299, 50S, 562 
 Wallis v." Anderson, etc., Co., 60 
 Ind. s6, [59, 296, 764 
 
 v. Randall, Si N. Y. 164, 
 
 v. Thomas, 7 Yesey, 292, 
 Walls, Ex parte, 73 Ind. 95, 
 Walls v. Baird, 91 Ind. 429, 
 
 v. Johnson, id Ind. 374, 
 
 v. Palmer, 64 Ind. 493, 335, 434, 462 
 Walpole, In re, 84 Cal. 584, SS 
 
 Walpole v. Carlisle, 32 Ind. 415, 790 
 
 v. Smith, 4 Blackf. 304, 115, 141, 59S 
 
 412 
 
 6S7 
 
 Ss: 
 5S7, 588 
 499 
 
 537 
 
 693 
 
 3" 
 
 746 
 
 62 
 
 631 
 
 702, 
 7 X 4> 
 
 39 
 180 
 
 74S 
 
 274 
 
 54 
 
 74* 
 617 
 
 539 
 
 9 2 
 
 291, 
 
 Walsh v. Kelly, 40 N. Y. 556, 
 v. People,' SS N. Y. 458, 
 v. Sayre, 52 How. Pr. 334, 
 v. United States, 23 Ct. of CI. 1, 
 
 Walter v. Walter, 117 Ind. 247, 
 
 745- 75- 
 
 Walters v. Jordan, 13 Ired. L. 361, 570 
 v. Tefft, 57 Mich. 390. 665 
 
 Walton v. United States, 9 Wheat. 
 651, 7 r, i 
 
 Waltz v. Barroway. 25 Ind. 380, 672 
 v. Waltz, 84 Ind. 403, 567 
 
 Wannack v. Mayor, etc., 53 Ga. 162, 572 
 
 Wampler v. State, 2S Tex. A pp. 352, 254, 
 
 754 
 
 Wanata, The, 5 Otto, 600, 311 
 
 Wangerien v. Aspell, 47 Ohio St. 250, 123 
 
 Wann v. McGoon, 2 Scam. 74. 638 
 
 Wanser v. Atkinson 43 N.J. L. 571, 
 Warbritton v. Cameron, u> Ind. 302, 
 Warburton v.Cranch, to8 Ind. 
 Ward v. Angevine, 46 I ml. 415, 69,767 
 
 v. Bateman, 34 Ind. 1 1<>. 7', 
 
 v. Buell, 18 Ind. 104. 30S. 309 
 
 v. Busack, 46 Wis. 4 « > 7 . 581 
 
 v. Clay, 82 Cal. 502, 
 
 v. Jewett, 1 Robt. 714, 617 
 
 v. Kalfleish, 21 How. Pr. 283, 5157 
 
 V. Maryland. [2 Wall. 163. 388 
 
 v. Montgomery, ,7 Ind. 276, 
 
 v. People, [3 fll.635, 3°3 
 
 v. Ringo, 2 Tex. (.20, 560 
 
 v. Southfield, Town of. 102 N. 
 
 Y. 287, 455 
 
 v. State, 4S Ind. 2S9, 
 v. Thompson. 4S la. 5SS. 71 s 
 
 v. Voris, 117 Ind. 368, 791 
 
 v. Washington Ins. Co.. 6 Bosw. 
 
 229, 549 
 
 v. Wilms (Col.), 27 Pac. Rep. 
 
 247- 73 s 
 
 v. Woodburne, 27 Barb. 340. 54 
 
 Ware v. Henderson, 25 S. C. 3S5, 392 
 v. Morris, 42 La. Ann. 760, 123 
 
 v. Ware. S Me. 42, 529 
 
 Waring v. Gilbert. 25 Ala. 295. 4S} 
 
 v.U. S.Tel. Co:. 4 Daly, 233, 
 
 Warner v. Cammack, 37 la. 642. 589 
 v. Campbell, 39 Ind. 409. 177. |' ■; 
 v. People, 2 Denio, 272. 3 
 
 v. State, 114 Ind. 137, 622 
 
 v. Warner, 11 Kan. [21, (>$$ 
 
 v. Whittaker, 6 Mich. 133, 557 
 
 Warrall v. Parmelee, 1 Comst. 519, 657 
 
 Warren v. Crane. 50 Mich. 300, 631 
 v. Henly, 31 la. 31, 30 
 
 v. Sohn, 112 Ind. 2 13, 74 s 
 
 Warrick, etc., Co. v. Hougland, 90 
 Ind. [i 5, 18S 
 
 Warsaw. Citj of, v. Dunlap, 112 
 Ind. 576, 301. 397 
 
 War-on v. McElroy, 33 Mo. App. 
 
 553. 
 Wartena v. State. 105 Ind. 445, 248, 533 
 Washburn v. Board, 104 Ind. 321. 645 
 v. Kline. 47 Ind. 12S, 11S 
 
 v. Milwaukee, etc., Co., 58 Wis. 
 516, 
 
 v. Milwaukee, etc., Co., 59 ^ is. 
 379, 120 
 
 v. Roberts, 72 Ind. 213. 398, 511, 638 
 Washburn, etc.. Co. v. Chicago, etc.. 
 
 Co., 119 111. 30, 4^9 
 
 Washer v. Allensville, etc., Co., Si 
 
 Ind. 78, 6S3 
 
 Washington v. Eaton. 4 Cranch. C. 
 C.352, 35
 
 CX XVI 
 
 TABLE OF CASES. 
 
 Reft fences are to /' 
 
 Washington v. Louisville, etc.. 34 
 
 \|o. 65S, 545. 655 
 
 Washington Bridge Co. v. Stew- 
 art, 3 How. 413, 498 
 Washington Ice Co. v. Lay, 103 
 
 [nd 162, 766 
 
 Washington, etc., Co. v. Colton, 26 
 
 Conn. 42. 310 
 
 Washington County v. Durant, 7 
 
 Wall. 694, 104 
 
 Wasson v. Hodsire, 10S Ind. 26, 569 
 
 v. First Nat. Bank, 107 Ind. 206, 470 
 
 Wassum v. Feeney, 121 Mass. 93, 648 
 
 Waterman v. State, 116 Ind. 51, 253. 
 
 255, 620 
 Watertown Bank v. Mix, 51 N. Y. 
 
 558, 619 
 
 Watertown Nat. Hank v. Ilolabird 
 
 (S. Dak.), 49 N. W. Rep. 9S, 452 
 
 Watkins v. Holman, 16 Pet. 25, 420 
 
 v. Mason, 11 Ore. 72, 74, 84 
 
 v. State, 6S Ind. 427. 217 
 
 Watson, Ex parte, 3 Pet. 193, 12 
 
 Watson v. Avery, 3 Bush. 635, 4S9 
 
 v. Camper, 119 Ind. 60, 52 
 
 46, 
 
 v. Crowsore, 93 Ind. 220, 
 v. Mercer, S Pet. SS, 
 v. Piel, 58 Ind. 566, 
 v. Smith, 2S Tex. App. 34, 
 St. Paul, etc., Co., 42 Minn. 
 
 53 6 
 
 61 
 
 296 
 
 743 
 
 5291 
 
 623 
 
 53 1 
 
 590 
 496 
 
 561 
 619 
 760 
 
 /' 
 
 529 
 
 271 
 
 325 
 
 535 
 
 State, 63 Ind. 548, 
 
 v. Sutherland, 5 Wall. 74, 
 
 v. Trustees, 2 Jones. 211, 
 
 v. Van Meter, 43 la. 76, 
 
 v. Walker, 23 N. II. 471, 
 
 v. Watson, 53 Ark. 415, 
 
 v. Whitney, 23 Cal. 375, 
 
 v. Williard, 9 Pa. St. 89, 
 Watson, etc., Co. v. Casteel, 73 Ind 
 
 296, 
 Watt v. Alvord, 25 Ind. 533, 
 
 v. Alvord, 27 Ind. 495, 169, 171 
 
 v. De Haven, 55 Ind. 12S, 782 
 
 Watts v. Pitman, 125 Ind. 16S, 2SS, 520 
 
 v. Green, 30 Ind. 9S, 295 
 
 v.Julian, 122 Ind. 124, 596, 712 
 
 v. State, 33 Ind. 237, 37S 
 
 Waugh v. Waugh, \- Ind. 580, 63S 
 
 Waxel v. II. unman, 35 111. App. 571,265 
 Way \. Fravel, 6i Ind. 162, 601 
 
 v. Le\\i>. 115 Mass. 26, 31S 
 
 Wayman v. Southard. 10 Wheat. 1, 217 
 Waymire v. Lank. 121 Ind. 1, 624,702, 
 
 7 J 4. 739 
 \\'a\ ne County Turnpike Co. v. 
 
 Berry, 5 Ind. 286, 509. -:'' s 
 
 Wearen v. Smith. 80 Kv. 216, 71 
 
 Weatherby v. Higgins, 6 Ind. 73. 694 
 
 Weatherhead v. Bray, 7 Ind. 706, 
 r v. Kintzley, 58 la. 191, 
 v. State. 83 Ind. 542, 
 \ . State, 24 Ohio St. 5S4, 
 v. Templin, 1 13 Ind. 29S, 9, 5S, 63, 
 
 479. -^s 
 v. Trustees, etc., 28 Ind. 112, 
 v. Van Akin. 77 Mich. 588, 
 Webb v. Carr, 7S Ind. 455, 
 
 v. Portland, etc., Co., 3 Sumn 
 C. C. 189, 
 
 v. Simpson, 105 Ind. 327, 222, 225, 
 
 22ft 
 v. State, 29 Ohio St. 351, 
 Webber v. Bueger (Col.), 27 Pac. 
 Rep. S71, 
 
 v. Wilcox. 4:5 Cal. 301, 
 Weber v. Tschetter (Dak.), 46 N. 
 
 W. Rep. 201, 
 Webster v. Bebinger, 70 Ind. 9, 608, 695 
 v. Buffalo Ins. Co., no U. S. 
 
 3S6, 
 
 v. Calden, 55 Me. 165, 
 v. Spindler, 36 Mo. App. 355, 
 v. Tibbits, 19 Wis. 439, 
 Webster, etc., Co. v. St. Croix Co.. 
 
 63 Wis. 647, 
 Weed v. Weed, 25 Conn. 337, 
 Weed, etc., Co. v. Philbrick, 70 Mo. 
 
 646, 
 Weeden v. Richmond, 9 R. I. 128, 
 Weichselbaum v. Curlett, 20 Kan. 
 
 709, 
 Weik v. Pugh, 92 Ind. 3S2, 510, 537, 613 
 Weil v. Cavins, 74 Ind. 265, 219 
 
 Weir v. Burlington, etc., Co., 19 
 Neb. 212, 168 
 
 v. St. Paul, etc., Co., iS Minn. 
 1.55. 2 °7 
 
 v. State, 96 Ind. 311, 507, 562, 606, 
 
 609 
 Weir Plow Co. v. Walmsley, no 
 
 Ind. 242, 678, 771 
 
 Weis v. City of Madison, 75 Ind. 
 
 241, 4S0, 744 
 
 Weiser v. Day, 77 Iowa, 25, 146 
 
 Weiss v. Guerinean, 109 Ind. 43S, 504 
 
 Welborn v. Sheppard, 5 Ala. 674. 
 
 Welch v. Bowen, 103 Ind. 252. 
 
 v. Bowman, 103 Ind. 252, 
 
 v. Taverner, 7S la. 207. 
 
 v. Wetzell Co., 29 W. Va. 63, 
 
 Wellington, In re, 16 Pick. 07, 
 
 Wells v. Burlington, etc., Co., 56 
 
 la. 520, 
 Well's Case, 2 Greenl. (Me.) ^22. 
 Wells v. Dickey, 15 Ind. 361, 
 Wells, Estate of. v. Wells. 71 Ind. 
 509- 773 
 
 301 
 646 
 53 1 
 
 534 
 
 597 
 
 59 6 
 
 41S 
 
 561 
 
 535 
 
 207 
 
 S6 
 
 495 
 
 J 34 
 
 7 6 5 
 
 98 
 
 73 2 
 
 61 
 
 180 
 
 5 2 3 
 392 
 
 34 
 
 671 
 
 5 J 3 
 
 62 
 
 620 
 
 5!7 
 2S 
 
 770 
 230 
 403
 
 TABLE OF CASES. 
 
 CXXVll 
 
 l\. ferences 
 Wells v. Kavanaugh, 74 [a. 372, 700 
 
 v. Lea, jo Mo. App. 352, 159 
 
 v. McGeoch, 71 Wis. 1 
 
 v. Waterhouse, 22 Me. 131. 670 
 Welsh v. Childs, 17 Ohio St. 319, 672 
 
 v. State, 126 Ind. 71, 2 ,,3. 665, 6S1, 
 
 6S9 
 
 v. State, 25 N. E. Rep. SS3, 27 
 
 Werborn v. Pinnev, 76 Ala. 291, 493 
 Werner v. O'Brien, 40 Mo. App. 
 
 483, 571 
 
 Wesley v. Milford, 41 Ind. 413, 26S, 269 
 Wessels v. Beeman, 66 Mich. 343, 7;;. 
 
 756 
 
 West v. Camden, 135 U. S. 507, 570 
 v. Cavins, 74 Ind. 265, 213, 22 2, 
 244. 3<>Oj 345- 443- 7 SC > 
 v. Miller, 125 Ind. 70, 596 
 
 v. Shryer, 29 Ind. 624, 596 
 
 v. State, 2 Zabr. 212. 674 
 
 v. WMlliamson, 1 Swan. 277, 672 
 West Coast, etc., Co. v. Newkirk, 
 
 So Cal. 275, 567 
 
 Westbrooke v. Wicks, 36 la. 3S2, 434 
 Westcott v. Huff, 18 Ind. 245, 556 
 
 Westfall v. Stark, 24 Ind. 377, 394, 396 
 Westerfield v. Spencer, 61 Ind. 339, 299, 
 
 7S6 
 Western Union Tel. Co. v. Brown, 
 10S Ind. 53S, 19. 475, 709, 74S 
 
 v. Buskirk, 107 Ind. 549, 534 
 
 v. Fenton, 52 Ind. 1, 405 
 
 v. Frank, 85 Ind. 4S0, 1S7, 300 
 
 v. Hamilton, 50 Ind. 1S1, 469 
 
 v. Kilpatrick, 97 Ind. 42, 279, 373, 
 
 v. Locke, 107 Ind. 9, 63, 64, 65, 84, 
 
 697 
 v. Rogers, 93 U. S. 565, 
 v. Scircle, 103 Ind. 227, 
 v. Trissall, 9S Ind. 566, 
 
 50 
 
 35, -17 
 6S7. 725, 
 
 745- 749 
 Western, etc., Co. v. Central, etc., 
 Co., 116 Ind. 229. 
 v. State, 69 Ga. 524. 
 v. Stndebaker, etc., Co., 124 
 Ind. 176, 
 Westminister, City of, v. Shipley, 
 
 6S Md. 610, 
 
 Westmoreland Co. v. Conemaugh 
 
 Tp.. 34 Pa. St. 231, 91 
 
 v. Overseers, 34 Pa. St. 232. 61 
 
 Weston v. Charlestown. 2 Pet. 449, 73 
 
 v. City Council, 2 Pet. 449. 16 
 
 v. Johnson, 4S Ind. 1, 6S7, 789 
 
 Wetherbee v. Dunn. 32 Cal. 106, 109 
 
 Wetherill v. Langs ton, 1 Exch. 644, 602 
 
 Wetmore v. Plant, c Conn. 541, 271 
 
 Wetzler v. Duffy, 7^ Wis. 170. 544 
 
 <ir. to Pages.] 
 
 Weymouth v. Gregg Mich.). 41 N. 
 
 W. Rep. 243. 
 Whalen v. Chicago, etc.. Co.. 7; la. 
 
 421, 
 Whaley v. Charleston, S S. C.344. 
 v. Gleason, 40 Ind. 405. 769, 
 Wheeler v. American Central Ins. 
 Co., 6 Mo. App. 235, 
 v. Edinger, 11 la. 409, 
 v. GotYe, 24 Tex. 060, 
 v. Harris, 13 Wall. 51, 
 v. Me-shing-go-me-sia, 30 Ind. 
 402. 
 
 v. Reitz, 92 Ind. 379, 
 v. Schroeder, 4 R. I. 3S3, 
 v. State, 8 Ind. 113, 
 Wheeler, etc., Co. v. Burklingham, 
 
 137 Mass. 5S1, 
 Wheelock v. Henshaw, 19 Pick. 341. 
 Whelchell v. State, 2^ Ind. S9, 
 Whidden v. Seelye, 40 Me. 247, 
 Whipley v. Flower, 6 Cal. 630, 
 
 v. Mills, 9 Cal. 641, 153. 
 
 Whipperman v. Dunn, 124 Ind. 
 
 349' 4<>7> 4SS, 
 
 \\ hippie v. Shewalter, 91 Ind. 114, 
 Whisler v. Lawrence. 112 Ind. 229, 
 
 Whistler v. Teague, 66 Ind. 565, 
 Whitaker v. Gee, 61 Tex. 217, 
 Whitcomb v. Smith, 123 Ind. 329, 
 White v. Allen, 9 Ind. 561, 354, 
 v. Bailey, 14 Conn. 271, 
 v. Behan, So Ind. 239, 
 v. Burkett, 119 Ind. 431, 43S, 
 v. Butcher, 97 X. C. 7, 
 v. Carlton, 52 Ind. 371, 
 v. Chicago, etc., Co., 122 Ind. 
 3*7. 
 
 v. Clawson, 79 Ind. iSS, 
 
 v. Gilbert, 10 Xeb. 539, 
 
 v. Gregory, 126 Ind. 95, 6S3, 
 
 59- 
 459 
 
 79 1 
 
 v. Harvey, 2^ Ind. 55, 
 
 v. Miller'. 47 Ind. 385, 
 
 v. Milwaukee, etc.. Co., 61 Wis. 
 
 53<3, 
 
 v. Morris. 107 X. C. 92, 
 
 v. People, 90 111. 117. 
 
 v. Perkins, 10 Ind. 358, 
 
 v. Poorman. 24 la. 10S, 
 
 v. State, 69 Ind. 273. 
 
 v. Stellwagon, 54 Ind. 1S6, 
 
 v. Van I louten. ^ 1 Mo. 577, 
 
 v. United Stales, 1 Wall. 660, 
 
 White Water Valley, etc.. Co. v. 
 Comegys, 2 I ml. j.6 1. 
 
 White Water, etc., Co. v. McClure, 
 29 Ind. 5 
 
 4" 
 284 
 180 
 
 507 
 
 - 
 
 6 43 
 
 744 
 
 20S 
 192 
 
 579 
 
 57o 
 666 
 
 44S 
 
 736 
 76S 
 16S. 
 6S2 
 53' 
 74 
 7i3 
 359 
 7H 
 690 
 
 59- 
 491 
 
 614 
 
 506 
 
 10S 
 
 9i 
 
 6S5. 
 
 75S 
 
 70 
 
 39S 
 
 539 
 630 
 
 534 
 781 
 
 4S3 
 59- 
 
 54 
 439 
 
 614
 
 cxxvin 
 
 TABLE OF CASES. 
 
 ffi ferences a 
 
 White Water R. R. Co. v. Budgett, 
 94 I ml. 216, 571 
 
 Whitefi< Id v. ( 'm :< :r, 3 Baxt. 78, 4.34 
 
 Whiteford Tp, v. Probate Judge, ■;$ 
 Mich. [30, 148 
 
 Whitehead v. Boorom, 7 Bush. 399, 340 
 v. Mathowaj . 85 End. S5, 
 v. Scott, 1 Mood. & R.2, 697 
 
 v. Thorp. 22 la. 4.25, 312 
 
 Whitehurst v. Pettipher, 105 N. C. 
 
 39. 1-54. 750 
 
 Whitelaw v. Whitelaw, 83 Va. 40, 61S 
 
 Whitewell v. Emory, 3 Mich. 84, 178 
 
 Whiting v. Bank, 13 Pet. 6, 73, 451 
 
 v. Edmunds. 94 X. Y. 309, 34 
 
 v. Mississippi, etc.. Co., 76 Wis. 
 
 59 2 » ■ 537 
 
 Whiteside v. Adams, 26 Ind. 250, 281, 
 
 7 r, 7, 769 
 Whitesides v. Russell, 8 W. & S. 
 44, 192, 718 
 
 v. Hunt, 97 Ind. 191. 614 
 
 Whitlock v. Consumers Gas, etc., 
 
 Co., 127 Ind. 62, 700 
 
 Whiteman v. Harriman, 85 Ind. 49, 562 
 
 Whitman v. Weller, 39 Ind. 515, 1 59, 
 
 410, 417, 696, 697 
 
 Whitmore v. Supreme Lodge, etc., 
 
 100 Mo. 36, ^47 
 
 Whitney v. Ferris, 10 Johns. 66, 732 
 v. Lehmer, 26 Ind. 503, 277 
 
 Whiton v. Chicago, etc., Co., 25 
 
 Wis. 424. 72 
 
 Whitsitt v. Union, etc., Co., 122 U. 
 
 s - 3 6 3. 447 
 
 Whittem v. State, 36 Ind. 196, 231, 434 
 Whittemore v. Fisher (111.), 24 N. 
 
 F. Rep. 636, 412 
 
 Whitworth v. Ballard, 56 Ind. 279, 506, 
 
 7 l S 
 
 v. Sour, 57 Ind. 107, 75S 
 
 Wickham v. Hess, 3S Ind. 1S3, 121, 
 
 276. 448 
 Wichita, etc., Co. v. Fechheimer, 36 
 
 Kan. 45, 624 
 
 Wickliffe v. Owings, 17 How. 47, 476 
 Widner v. State, 28 Ind. 394, 689 
 
 Wieting v. Millston, 77 Wis. 523, 792 
 Wigand v. Sichel, 3 Keyes, 120, 507 
 Wiggins v. City of Chicago, 68 111. 
 37-. 7iS 
 
 v. McCoy, 87 N. C. 499. 65 
 
 Wight v. Wallbaum, 39 111. 555. 9 
 
 Wightman v. City of Providence, 1 
 
 Cliff. 524, 623 
 
 W iggs v. Koontz, 43 Ind. 430, 261 
 
 Wilcox v. Majors, 88 Ind. 203, 1S1 
 
 \ . Moud v, 82 Ind. 2 [9, 670 
 
 v. Saunders, 4 Neb. 569, 61 
 
 v. Smith, 26 Barb. 310. 142 
 
 re to Pages.\ 
 
 Wilcox v. Wilcox (Vt.),2i Atl.Rep. 
 
 4-3- 444 
 
 Wilds v. Bogan, 55 Ind. 331, 7S9 
 
 Wiles v. Manlev, 51 Ind. 169, 761 
 
 Wiley, Kx parte. 39 Ind. 546, 4 
 
 v. Barclay, 58 Ind. 577. 299 
 
 v. Coovert, 127 Ind. 559, 271, 556 
 
 v. Givens, 6 Gratt. 277. 555 
 
 v.Johnson. 74 Ind. 2^. 773 
 
 v. Lovely, 46 Mich. S3, 271 
 
 v. Neal, 24 Neb. 141. 37 N. W. 
 
 Rep. 920, 148 
 
 Wilhite v. Wilhite. 124 Ind. 226, 504 
 
 Wilhoit v. Cunningham, 87 Cal. 
 
 453. 73 6 
 
 Wilkerson v. Rust, 57 Ind. 1-72, 732, 751 
 
 Wilkins v. Mitchell", 3 Salk. 229, 435 
 
 v. Slate. 113 Ind. 514, 7,9, 531 
 
 Wilkinson v. Bay ley, 71 Wis. 131, 071 
 
 v. St. Louis, etc., Co., 102 Mo. 
 
 130. 618 
 
 v. Whitney, 15 Ind. 194, 286 
 
 Willcuts v. Northwestern, etc., Co., 
 
 8i Ind. 300, 640 
 
 Willett v. Porter, 42 Ind. 250, 6S2 
 
 Willets v. Ridgway, 9 Ind. 367, 37 
 
 Willey v.Morrow, 1 Wash. Ty. 474, 481 
 
 v. State, 46 Ind. 363, 679 
 
 v. State, 52 Ind. 421, 254, 617 
 
 v. Strickland, 8 Ind. 453, 403 
 
 Williams v. Allen, 40 Ind. 295, 535, 616 
 
 v. Banhead, 19 Wall. 563, 596 
 
 v. Bank of U. S., n Wheat. 
 
 414, 116, 139 
 
 v. Birch, 6 Bosw. 674, 521 
 
 v. Board, 121 Ind. 239, 605 
 
 v. Boyd, 75 Ind. 2S6, 39S, 399 
 
 v. Bruffy, 102 U. S. 248, 332, 499 
 
 v. Citizens" Rv. Co. (Ind.), 29 
 
 N. E. Rep. 408, * 592 
 
 v. Coleman, 49 Mo. 325, 306 
 
 v. Com., 82 Kv. 640, 534 
 
 v. Conger, 131 U.S. 390, 467 
 
 v. Ewart, 29 W. Va. 659, 5S1 
 
 v. Grand Rapids, 53 Mich. 271, 53S, 
 
 699 
 v. Guile, 117 N. Y. 343, 643 
 
 v. Henderson, 90 Ind. 577, 178 
 
 v. Ilit/.ie, 83 Ind. 303, 146 
 
 v. Hutchinson(Fla.),7 So. Rep. 
 S52, ' 447 
 
 v. Jacksonville, etc., Co., 25 
 Fla. 359, 455 
 
 v. Kessler. S2 Ind. 1S4, 2S2 
 
 v.Jones, 14 Ind. 363, 497 
 
 v. La Penotiere, 25 Fla. 473, 447 
 v. Morgan, in V. S. 6S4, 79, 115 
 v. Nesbit, 65 Ind. 171, 375 
 
 v. Norris, 12 Wheat. 117, 754 
 
 v. Nottawa, 104 U. S. 209, 125
 
 TABLE OF CASES. 
 
 CXX1X 
 
 \Referenci s a 
 Williams v. Pendleton, etc., Co.. ;'■ 
 
 Ind. 87, 7 SS 
 
 v. Port, <) I ml. 551, 497 
 
 v. Potter, 72 I ml. 354, 162, 768 
 
 v. Quin, 7 Cow . 5 1S4 
 
 v. Riley, 88 Ind. 290, 261, 274. 279 
 v. Rochester, 2 Lans. 1 69, 
 \. Santa Clara MiningAssocia- 
 
 tion. 66 Cal. 193, 
 
 v. Shepherd, 1 Gr. 76, 
 
 v. Sims. [6 S. W. Rep. 786, 
 
 v. State, 5 Ind. 235, 
 
 V. State, 87 1ml. 527, 
 
 v. State, 127 End. 471. 
 
 v. State, 69 Tex. 36S, 
 
 v. State, 28 Tex. App. 301, 
 
 v. State, 61 Wis. 2S1, 
 
 v. Stevenson, 103 Ind. 243, 
 
 v. Thomas, 3 N. M. 324, 
 
 v. Thomas, 7S X. C. 4". 
 
 v. Thomas, etc., Co> 105 Ind. 
 
 420 
 
 190 
 
 267 
 340 
 103 
 73 6 
 703 
 59- 
 57S 
 250 
 290 
 628 
 619 
 
 7S1 
 v. West, 2 Ohio St. 82, 54, 638 
 
 v. Wheeler, 17 How. Pr. 93, 392 
 v. Willis, 7 Abb. Pr. 90, 709 
 
 Williamson v. Carlton, 51 Mo. 449, 2S 
 v. Field, 2 Barb. Ch. 2S1, 
 v. Yingling, So Ind. 379, 
 
 Willis v. Bayles, 105 Ind. 36^, 
 v. Browning, 96 Ind. 149, 
 v. Chambers, S Tex. 150 
 v. Farley, 24 Cal. 490, 
 v. McNutt, 75 Tex. 69, 
 v. Rivers, So Ga. ^36, 
 v. State, 27 Neb. 98, 
 v. State, 73 Ala. 362, 
 
 Willson v. Binford, 54 Ind. 569, 
 
 53 f '- 57o. 
 
 624, G26 
 
 SS 
 
 2S2, 404 
 
 554 
 
 «4 
 
 307 
 
 -5- 
 250 
 
 331 
 
 v. Binford, 74 Iml. 424, 220, 221 
 
 v. Glenn, 77 Ind. 5S5, 312 
 
 v. Watkins, 3 Pet. 43, 34 
 
 Wilmot v. Richardson, 2 Keyes, 
 
 5 IO ~ 5S7 
 
 Wilson, In re, 75 Cal. 5S0, 436 
 
 v. Allen, 3 How. Pr. R. 3(19, 146 
 v. Atlanta, etc., Co., S2 Ga. 
 3S6, 120, 678, 691 
 
 v. Board, 63 Mo. 137, 640 
 
 v. Broder, 24 Cal. 190, 469 
 
 v. Brookshire, 126 Ind. 497, 589, 781 
 v. Buell, 117 Ind. 315, '73, 603 
 
 v. Campbell, 119 Ind. 2S6, 713 
 
 v. Castro, 31 Cal. 420, 604 
 
 v. Coles, 2 Blackf. 462, 632, 675 
 v. Daniel, 3 Dall. 400, |., 
 
 v. Dean, 10 Ark. 308, 330 
 
 v. Everett, 571 
 
 v. Giddings, 2S Ohio St. 554, ;< 1 
 v. Hamilton. 75 Ind. 71. 715. 716, 719 
 v. Harrison, 44 Ind. 468, 268 
 
 I 
 
 ye In Pi 
 
 Wilson v. Hefflin, 81 Ind. 3;. 
 
 v. Hobdaj 1 M. & S. 121. 
 v. I [olloway, 70 Ind. 407, 
 v. Holt, 85 Ala. 95, 
 v. I loss, 24 U. S. Sup. Ct. Ry. 
 
 (Lawyers' ed.; 270, 
 v. 1 lulz, 6l Mo. 1 j;. 
 v. Kelly, 5 S Ind. - 
 v. Life and Fire Ins. Co., 12 
 
 Pet. 140, 137, 
 
 v. McNamei . 102 U. S. 572, 
 v. McVey, S3 Ind. 10S, 
 v. People, 94 111. 299, 57S, 
 
 v. Piper, 77 Ind. 437, 756, 
 
 v. Rocke, 5S N.Y. 642, 
 v. Roots, 119 111. 379, 
 v. Scott, 3 Lans. 30S, 
 v. Shepherd, 15 Neb. 15, 
 v. State, 6 Blackf. 212, 
 v. State, 16 Ind. 392, 
 v. Stewart, 63 Ind. 294, 
 v. Town of Monticello, 85 Ind. 
 
 10, 562, 565, 566, 60S, 
 
 v. Trafalgar, etc., Co., 93 Ind. 
 
 2S7, 
 
 v. Vance, qe; Ind. 394, 
 v. Walfer, 8 Ind. 39S, 
 v. Wheeling, 19 W. Ya. 323, 
 v. Ziegler, 44 Tex. 657, 
 Wilstach v. Heyd, 122 Ind. 574, 
 Wimberg v. Schwegeman, 47 Ind. 
 
 5 2S > 
 Wimer v. Albaugh, 7S la. 79, 
 Winbrenner v. Brunswick, etc. .Co. 
 
 (la.), 47 N. W. Rep. 1089. 
 Winchell v. Hicks, [8 N. V. 558, 
 Winchester v. Kim, r . 46 Mich. 102. 
 Windham, etc., Bank v. Kendall, 7 
 
 R. I. 77. 
 \\ indman v. Vincennes, 5S Ind.4So, 
 Windsor v. McVeigh, <r3 I". S. 274, 
 Winfield Town Co. v. Moris, n 
 
 Kan. 12S, 
 Wing v. De La Rionda, 12 q N. V. 
 
 678, 
 
 v. Warner. 2 Doug. (Mich.) 288, 
 Wingate V. Wilson. 53 Ind. 7S, 
 Wingo v. State, 99 Ind. 343. 77. 
 Winklev v. Fove, ^^ N. II. 171. 28 
 
 N.I I". 513. 56S, 
 
 Winona, etc., Co. v. Denman, 10 
 Minn. 267, 
 
 v. First Nat. Bank, ^3 HI. App. 
 630, 
 Winsett v. State. 54 Ind. 437, 241. 
 
 529, 
 \\ inship v. Block, 96 Ind. 446, 
 Winslow v. Anderson. -5 Dev. t V 
 Bat. (L.) 9, 
 
 V. Winslow, 52 Ind. S. 
 
 3 r " 
 
 43 r ' 
 
 63 
 393 
 
 139 
 
 3-7 
 736 
 766 
 402 
 
 { >3') 
 601 
 
 7 1 
 603 
 
 609 
 
 574 
 268 
 
 745 
 
 65 
 
 149 
 
 276 
 
 ;o, 
 692 
 
 550 
 662 
 
 79 1 
 62 
 
 1 48 
 
 655 
 
 612 
 
 55 < 
 
 3*9 
 243, 
 
 :>»- 
 45 
 
 284 
 59a
 
 CX XX 
 
 TABLE OF CASES. 
 
 rences are to Pages.] 
 
 Winsor v. Queen, 6 B, a: S. 143. 541 
 Winston v. Miller, 20 Miss. 550, 2S6 
 Winterfield v. Bradnum, 3 C^B, 
 
 Div. 324, 39S 
 
 Winter v. Fulstone (Nev.), 21 Pac. 
 
 Rep. 687, 472 
 
 v. Hughes. 3 Utah. 43S, 343 
 
 Winter- v. Ethell. 132 U. S. 207, 97 
 
 v. Hughes, 3 Utah, 438, 315 
 
 v. Kansas City. etc.. 99 Mo. 509, 391 
 
 v. Null, 7 S. E. Rep. 443, " 34S 
 
 Winterson v. Eighth Ave. R. Co., 
 
 2 Hilt. 3S9, 407 
 
 Winton v. Conner, 24 Ind. 107, 494 
 
 Wiscart v. D'Auchj, 3 Dall. 321. 15 
 
 Wise v. Columbian Turnpike Co., 
 
 7 Cranch. 276, 49 
 
 v. Ringer. 42 Ala. 4S8, 673- 
 
 v. Williams, SS Cal. 30, 479 
 
 Wiseman v. Lynn, 39 Ind. 250. 306 
 
 v. Mitchell Co.. 104 X. C. 330, 452 
 
 v. Risinger, 14 Ind. 461, 630 
 
 v. Wi-eman, 73 Ind. 112, 555 
 
 Wisconsin, etc., Co. v. Plumer, 49 
 
 Wis. 668, 450 
 
 Wishmier v. Behymer, 30 Ind. 102, 658 
 v. State, 1 10 Ind. 523, 159, 273 
 
 Wiscart v. D'Auchy, 3 Dall. 321, 134 
 Witbeck v. Chittenden, 50 Mich. 426, 83 
 Withers v. Buckley, 20 How. S4, 27 
 
 Withers v. Jacks, 79 Cal. 297, 413 
 
 v. Patterson. 27 Tex. 491, 392 
 
 Witing v. City of Kansas, 39 Mo. 
 
 A pp. 259, " 67S 
 
 Witkowski v. Hern, S2 Cal. 604, 66 
 
 Witt v. King, 56 Ind. 72, 628 
 
 Witten v. Caspary, 15 S.W. Rep. 47, 340 
 Witter v. Arnett, S Ark. 57, 590 
 
 v. Latham, 12 Conn. 392, 701 
 
 Witters v. Sowles, 38 Fed. Rep. 700, 126 
 Wittkowskv v.Wasson. 71 X. C. 451, 702 
 Witz v. Dale (Ind.), 27 X. E. Rep. 
 
 498. 187, 1 88, 198 
 
 Wixson v. Devine, 80 Cal. 385, 492 
 
 Wolcot v. Wigton, 7 Ind. 44. 670 
 
 Wolcott v. Standlcy. 62 Ind. 198, 597 
 Wolever v. State. 127 Ind. 306, 671 
 
 Wolf v. Schofield, 3S Ind. 175, 562, 
 
 605, 674 
 
 v. State. 11 Ind. 231, 420 
 
 Wolfe v. Davis. 74 X. C. 597, 1504 
 
 v. Kable, 107 Ind. ^5, 7S1 
 
 v. Pugh, 1 01 Ind. 293, 572, 702 
 
 Wolff v. Mathews (Neb.), 11 S.W. 
 
 Rep. 563, 7S 
 
 Wolfley v. Lebanon Mining Co., 3 
 
 Col. 296, 177 
 
 W hold v. Oakley. 1 Sheldon (X. 
 
 Y. . 261, 62S 
 
 Wolly, In re, 11 Bush. (Ky.) 95, 7 
 
 Womack v. McAhren, 9 Ind. 6, 101, 
 
 I0 3- 467 
 Wood v. Brewer. 9 Ind. 86, Si, 89 
 
 \ . Franklin, 97 Ind. 1 17, 
 v. Fulton, 2 llarr. & G. 71, 33S 
 
 v. Jackson. S Wend. 9, 494 
 
 v. Lake, 13 Wis. 84, 400 
 
 v. Ostram, 29 Ind. 177, 17.3^'. 572, 
 
 624 
 v. Raw lings, 76 111. 206, 127 
 
 v. Squires, 60 X. V. 191, 190 
 
 v. State, 92 Ind. 269, 2^3 
 
 \. State, 27 Tex. App. 538, 4^1 
 
 v. Thomas, 5 Blackf. 553, 312 
 
 v. Wall, 5 La. Ann. 1 7 9, 323 
 
 v. Wayne, etc., 48 Mich. 641, 313 
 v. Wheeler, 106 X. C. 512, 601 
 
 v. Wilkinson, 13 Ind. 352, 7; 
 
 v. Wood, 51 Ind. 141, 64, 229 
 
 Woodard v. Davis, 127 Ind. 172,292. 581 
 Woodburn v. Fleming, 1 Blackf. 4, 321, 
 
 W T ood Paper Co. v. Heft, S Wall. 
 
 333. 125 
 
 W oodfield v. Barber, iS Ind. 320, 296 
 Woodfill v. Patton, 76 Ind. 575, 709 
 Woodhousev. Fillabater. 77 Va. 317. 1 72 
 Woodrum v. Kirkpatrick, 2 Swan. 
 
 217, 459 
 
 Woodruff v. Garner, 27 Ind. 4. 398 
 
 v. Jabine (Ark.), 15 S. W. Rep. 
 
 S30, 634 
 
 v. Rose, 43 Ala. 3S2, 71 
 
 Woods v. Brezzinski, 57 Conn. 471, 102 
 
 v. Brown, 93 Ind. 164, 165, 2815 
 
 v. Dickinson. 7 Mat key, 301 66 
 
 v. Hamilton, 39 Kan. (19, 6^7 
 
 v. Winan, 122 N. Y. 445, 643 
 
 Woodward v. Baker, 116 Ind. 152, 198 
 
 v. Beegue, 53 Ind. 176, 571 
 
 v. Corson, 86 Pa. St. 176, 463 
 
 v. Horst, 10 la. 120, 554, 7S4 
 
 v. Howard, 13 W T is. 557, 483 
 
 v. Leavenworth, 14 Ind. 311, 215 
 
 v. Murdock (Ind.), 13 Crim. L. 
 
 Mag. 71, 24S 
 
 Woodworth v. Wilcox, 27 Ind. 207, 524 
 
 v. Zimmerman, 92 Ind. 349, 488, 595 
 
 Woody v. Dean, 24 S. C. 499, 681 
 
 Woollen v. Whitacre, 91 Ind. 502, 635, 
 
 694, 696 
 v. Wire, no Ind. 251, 531, 535, 575, 
 
 '696 
 
 v. Wishmier, 70 Ind. 10S, 771, 774 
 
 Woolery v. Grayson, no Ind. 149, 52, 
 
 671 
 
 v. Louisville, etc., Co., 107 Ind. 
 
 3S1- 571. 703 
 
 Woolfolk v. State. 81 Ga. 551, 618 
 
 Woolley v. State, S Ind. 377, 64, 229
 
 TABLE OF CASES 
 
 C X X X i 
 
 Referena s art to 1 ' 
 
 Woollcy v. State, 8 Ind. 502, 253 
 
 Wooster v. Glover, 37 Conn. 315, 1S0 
 
 Worley v. Moore, 97 End, 1 ;, 570, 571,622 
 
 Wortham \. Harrison, 8 Tex. 141, 4S3 
 
 Worthington v. Olden, 31 la. 419, 666 
 
 Wray v. Hill, S5 Ind. 546, 719 
 
 Wreidl v. State. 48 Ind. 579, 256 
 
 Wright, In re, 19 Cal. 550, 1 \2 
 
 Wright v. Abbott, 85 Ind. [54, 373, 616 
 
 v.Anderson. 117 Ind. 349, 73 
 
 v. Bovnton, 40 N. H. 353, 780 
 
 v. Cabot, S9 N.Y. 570/ 733 
 
 v. Carpenter, 49 Cal. 607, 539 
 
 v. Defrees, S Ind. 29$, 5 
 
 v. Field, 7 Ind. 376, 596, 603 
 
 v. Forrestall, 65 Wis. 341, 514 
 
 \ Gillespie, 43 Mo. App. 244, 657 
 
 v. Hooker, 10 N. Y. 51, 407 
 
 v. Jordan, 71 Ind. I, 413 
 
 v. judge of Superior Court, 41 
 
 Mich. 7--''. 757 
 
 v.Julian. 97 Ind. 109, 640 
 
 v. Kleyla, 104 Ind. 223, 10S 
 
 v. McHaffey, 76 la. 96, 122 
 
 v. McLarinan, 92 Ind. 103, 36S, 375 
 
 99, 101, 
 
 105, 221 
 
 285 
 
 39 1 
 
 2S2 
 71, 100 
 
 v. Manns, 11 1 Ind. 42. 
 
 v. Marsh, 2 Gr. (la.) 94, 
 v. Mulvanev. 7^ Wis. 89, 
 v. N'orris, 40 Ind. 247. 
 v. Rogers, 26 Ind. 218, 
 v, Sanderson, 20 Mo. App. 534, 414 
 v State. 7S Ga. 102, 556 
 
 v. Wilson, 9S Ind. 112. 494 
 
 v. Wright, 97 Ind. 444, 108 
 
 v. Wright, 74 Wis. 439, SS 
 
 Wyandotte, City of, v. Gibson, 25 
 
 Kan. 236, 624 
 
 Wyatt v. Noble. S Blackf. 507, 527 
 
 Wynn v. Central, etc., Co., 14 N.Y. 
 
 Supp. 172, 546, 655 
 
 v. Simons, 33 Ala. 272, 666 
 
 v. Troy, 109 Ind. 250. 74S 
 
 Wynne v. Newman, 75 Ya. 811, 793 
 
 Wysor v. Johnson, 30 N. E. Rep. 
 
 '44- 759 
 
 v.Johnson, 1 Ind. App. 419, 51 
 
 vVvvell v.Jones, 37 Minn. 6S, 675 
 
 Yancey v. Teter, 39 Ind. 305, 2S4 
 
 Yaple v. Titus. 41 Pa. St. 195, 140 
 
 Yates v. Lansing, 9 Johns. 415, 474 
 v. Lansing, 5 Johns. 2^2, 424. ''71 
 
 Yater v. Mullen, 24 Ind. 277, 470 
 
 v. Mullen, 23 Ind. 562, 786 
 
 v. State. 58 Ind. 299, 604 
 
 Y eager v. Wright, 112 Ind. 230, 398, 
 
 Yerkes v. Sabin, 97 Ind. 1 \i. : „ 712 
 Yeakle v. Winter-. 60 Ind 
 Yearley v. Sharp, <,'> I ; . 22 
 
 Yeaton v. Lenox, 3 Pet. 123, 
 
 Yeoman v. Davis, 86 Ind. 
 York v. Ingham Circuit Judgi 
 
 Mich. 421. 
 
 v. Pease, 2 Gray, - 535 
 
 York Co. v. Central, etc., Co.. 3 
 
 Wall. 107. 733 
 
 "\ Ork, etc., Co. v. Myers, 18 How. 
 
 243. 
 
 "S ost v. Conroy, 92 Ind. 464, 
 Young. In re, 22 Wis. 205, 450 
 
 Young v. Dickey, 63 Ind. 31, 632, 671 
 v. Gundy, 6 Cranch. 51, 73 
 
 v. Harry, 4 Blaekt. 404 
 
 v. Highland, 9 Gratt. 16, 616 
 
 v. Hudson, 99 Mo. 102, 109 
 v. Ledrick, 14 Kan. 92. 532 
 
 v. McFadden, 125 Ind. 254. 108, 577 
 v. McLane, S Ind. 357. 750 
 
 v. Martin, 8 Wall. 354, 164, 7:9. 753 
 v. Mason, S 111. 55, 323 
 
 v. Matthiesen, etc., Co.. 10; 111. 
 
 26. 6S 
 
 v. Omohundro, 69 Md. 424, 639 
 
 v. Pickens. 4; Miss. 553, 140 
 
 v. Sellers, 106 Ind. xoi, 670 
 
 v. Stearns, 91 111. 22 2, 58 
 
 v. Youngman (Kan.), 25 Pae. 
 
 Rep. 209, 746 
 
 Youngman v. Elmira, etc.. 65 Pa. 
 
 St. 278, 286 
 
 Yturbidev. United States. 22 How. 
 
 290, 94 
 
 Zable v. Harris, S2 Ky. 473. 
 
 Zackary v. Pace, 9 Ark. 212, 570 
 
 Zeckendorf v. Zeckendorf, 1 Ariz. 
 
 401, 9 1 
 
 v.Johnson, 123 L. S.017, 50 
 
 Zehnor v. Beard, b Ind. 96, 195, 401, 
 
 v. Crull, 10 Ind. 547. J46 
 
 Zeigelmueller \ . Seamei-,63 Ind. 488, 404 
 Zehner v. Kepler. 16 Ind. 290, 615, 616, 
 
 658 
 
 Zeller v. Crawfordsville, 90 Ind 
 
 187 
 v. Griffiths, 89 Ind 80, 
 Ziegler v. Handrick, 106 Pa. St. 87, 
 
 v. Manges, 121 Ind. 99, 
 Zimmerman v. Marchland, 23 Ind. 
 
 474- 
 Zink v. Dick. 1 Ind. App. 269, 
 Zoller v. McDonald. 23 Cal. 1 56, 
 Zonker v. Cowan. S4 Ind. 395, 
 
 87, ''V 
 793 
 
 7i3 
 
 78a 
 
 5S1
 
 Part I. 
 
 APPELLATE TRIBUNALS, JURISDICTION AND PRACTICE
 
 CHAPTER I. 
 
 APPELLATE TRIIU'NALS. 
 
 § i. Judicial Power — Definition. 
 
 2. Rule where Constitution defines 
 
 the jurisdiction. 
 
 3. Only judicial duties can be im- 
 
 posed on courts. 
 
 4. Courts not required to give opin- 
 
 ions to the legislature. 
 
 5. Where the ultimate superior ju- 
 
 risdiction is vested. 
 
 §6. Inherent powers of constitutional 
 courts. 
 
 7. Power to frame rules. 
 
 S. Where judicial power resides. 
 
 9. Amplifying jurisdiction. 
 
 10. Influence of the Common Law. 
 
 11. Supplying statutory omissions. 
 
 § 1. Judicial Power — Definition — Judicial power is inherent in 
 the people, and is vested in courts by the constitution. The 
 legislature determines, subject to the provisions of the constitu- 
 tion, what tribunals shall exercise judicial power, but the power 
 itself is neither created nor vested by legislative enactments. 
 The constitution authorizes the creation of tribunals, and when 
 they are created by the legislature pursuant to the authority 
 conferred by the organic law, they are endowed by that law, 
 and not by legislative enactments, with judicial functions. 1 It 
 is one thing to organize tribunals and quite another to invest 
 them with that branch of the governmental power known as the 
 judicial. 
 
 1 The State v. Noble, 11S Ind. 350; 
 Shugart v. Miles, 125 Ind. 445, 447; 
 Hawkins v. The State, 125 Ind. 570; 
 People v. Maynard, 14 111. 419; Hall v. 
 Marks, 34 111. 35S; Kilbourne v. Thomp- 
 son, 103 U. S. 16S; People v. Keeler, 
 99 N. Y. 463, S. C. 52 Am. Rep. 
 49. This doctrine necessarily results 
 from the fundamental principle thai the 
 legislature has only legislative power, 
 and having only such power it can have 
 no judicial power to delegate. 1 Bryce 
 
 ' (3 
 
 Am. Com. 429; Warner v. People, z 
 Denio. 272; King v. Hunter, 65 N. C. 
 603, S. C. 6 Am. Rep. 754. In speak- 
 ing of a constitutional provision con- 
 ferring authority upon designated judi- 
 cial tribunals the Supreme Court of 
 Illinois said: "This section exhau: 
 the judicial power of the people of 
 Stale. It is there fully disposed 
 leaving no residuum." Missouri River 
 Telegraph Co. v. The First National 
 Bank, 74 111. 217.
 
 4 APPELLATE PROCEDURE. 
 
 Rule where the Constitution deliues the Jurisdiction — 
 Where the constitution defines the jurisdiction of a court the 
 legislature can not take it away, nor, indeed, change it in any 
 materia] respect. 1 As a corollary of this principle it must fol- 
 low that where a Supreme Court is created by the constitution 
 with ultimate appellate jurisdiction, the legislature, although it 
 may have power to establish courts, can not take away the su- 
 perior appellate jurisdiction. 2 The Constitution of Indiana cre- 
 ates a Supreme Court and makes it the highest judicial tribu- 
 nal of the State, so that while inferior tribunals maybe created, 
 a higher one can not be established by the legislature. 3 While 
 the legislature can not rightfully, or constitutionally, take away 
 tin' supreme appellate jurisdiction of the Supreme Court, it mav 
 regulate the procedure, designate the amount that shall author- 
 ize an appeal, and, within limits, designate the class of cases 
 that mav be appealed ; but it can not, under the guise of regu- 
 lating the procedure or the right of appeal, take away the es- 
 sential jurisdiction of that court as the highest court of error or 
 appeals. 
 
 3. Only Judicial Duties can be Imposed — The fundamental 
 
 • ' Harris v. Vanderveer, -i N. J. Eq. to the amendments adopted in 1SS1, 
 
 424, /;/ re Cleaveland N.J. . 17 Atl. it was held that courts inferior to 
 
 772; Hutkoff v. Demorest, 103 N. V. the circuit courts might be established. 
 
 377; Slate v. Gannaway, 16 Lea. 124; Combs v. The State, 26 Ind. 9S; An- 
 
 Landers v. Staten Island Railroad Co., derson v. State, 2S Ind. 22; Clem v. 
 
 ■ Y. (.50; In Matter of the Ap- State, 33 Ind. 41S; Eitel V. State, 33 
 
 plication of the Senate, 10 Minn. 78. Ind. 201; Ex fartc Wiley, 39 Ind. 546. 
 
 * rts must exercise the jurisdiction Since the adoption of those amend- 
 
 1 in them by the constitution, ments there can be no question as to 
 
 ander v. Bennet, 60 X. Y. 204. the power of the legislature to estab- 
 
 Where the constitution lodges jurisdic- lish courts superior in jurisdiction to 
 
 tion there it abides beyond legislative the circuit courts. Courts created sole- 
 
 ek Water Company ly by the legislature are subject to leg- 
 
 Vallejo, p Cal. 70. islative control, except that while they 
 
 • In the Matter of the Senate, 9 Col. exist as courts they possess the inher- 
 
 Vdams v. Town. 3 Cal. 2.17: 1 licks ent powers of courts. Mullen v. State, 
 
 • Bell, 3 Cal. 219, 22\; Fitzgerald v. 34 Ind. 540. The inherent power of a 
 
 n, ( Cal. 235; Haighl -. Gay, 8 court can not be destroyed since that 
 
 Cal. 297; Adams - . Wood-. 8 Cal. 306, would destroy the independence of the 
 
 Willis " . Farley, 24 Cal.. po. 499. judiciary. Little V. State, 90 Ind. 338; 
 
 Article 7. $§ 1 to 7. Prior Ilawkin v. State, 25 N. E. SiS.
 
 APPELLATE TRIBUNALS. 5 
 
 principle of free government requiring the separation of the de- 
 partments of government ' precludes the legislature from impos- 
 ing any other than judicial duties upon the courts. 2 The courts 
 can not be required to interfere with legislative matters, nor can 
 they be given jurisdiction over matters made legislative by the 
 constitution. 3 
 
 § 4. Court Dot Required to give Opinions to Legislature— The 
 
 Supreme Court can not be required to give opinions to the leg- 
 islature except in those States where the constitution expressly 
 imposes the duty upon that tribunal. The duty does not rest 
 upon the courts except where there is a constitutional provision 
 imposing it upon them. As there is no such. requirement in the 
 Constitution of Indiana, that duty can not be imposed upon the 
 Supreme Court of this State. 4 
 
 § 5. Where the ultimate Superior Jurisdiction is Vested — It is no 
 
 doubt true that under the constitutional amendments of 1881, 5 
 the legislature may create intermediate appellate courts, but as 
 it can not take from the. Supreme Court the ultimate appellate 
 
 1 Sinking Fund Cases, 99 U. S. 700; 439; Opinion of Justices. 23 Fla. 297, 
 
 Clough u.Curtis, 10 Sup. Ct. R. 573; S. C. 6 So. R. 925; Opinion of Justices, 
 
 Wright v. Defrees, S Ind. 298; Lafay- 49 Mo. 216; In re Irrigation Resolution, 
 
 ette, etc., Co. v. Geiger, 34 Ind. 185, 197; 9 Col. 620; /;/ re Senate Resolution. 2 1 
 
 Kuntz v. Sumption, 117 Ind. 1; Smvthe Pac. R 470; Opinion of Judges, 79 Kv. 
 
 v. Boswell, 117 Ind. 365; Smith v. My- 621. 
 ers, 109 Ind. 1. 5 Const., Article 2, § 14; Article 
 
 *Exj>arte Griffiths, 1 18 Ind. 83; Hay- 7, § 1. The general authority to es- 
 
 burn's Case, 2. Dall. 409,7/; United States tablish courts leaves much to the leg- 
 
 v. Ferreira, 13 How. 40, «; Rees v. City, islative discretion. Commonwealth v. 
 
 19 Wall. 107; Auditor v. Atchison, Hippie, 69 Pa. St. 9; State v. New 
 
 etc., Co., 6 Kan. 500; Smith v. Strother, Brunswick, 42 N. J. 51; State 
 
 6S Cal. 194; Burgoyne :•. Supervisors, Brown, 71 Mo. 454; Burke v. St. Paul, 
 
 5 Cal. 9; People v. Nevada, 6 Cal. 143; etc., Co., 35 Minn. 172. But the juris- 
 
 McLean Co. v. Deposit Bank. Si Ky. diction vested by the constitution can 
 
 -51- not he changed or impaired by legisla- 
 
 3 Clough v. Curtis, 10 Sup. Ct. R. tion. Greenough v. Greenough, 1 1 Pa. 
 
 573; Smith v. Myers, 109 Ind. 1; Rob- St. 489; Gough v. Horsey. 27 Wis. id; 
 
 ertson v. State, 109 Ind. 79; State v. Risser v. Hoyt, 53 Mich. 185; Schoultz 
 
 Harmon. 31 Ohio St. 250; State v. v. McPheeters, 79 Ind. 373; In reCleve- 
 
 Baxter, 28 Ark. 129. land, 17 Atl. R. 772 (X. J.). 
 
 * Opinion of Justices, 21 N. E. R.
 
 i; APPELLATE PROCEDURE. 
 
 jurisdiction it would seem to follow that no statute can be valid 
 which assumes to vest in any other tribunal than the Supreme 
 rt jurisdiction of questions which require the highest expres- 
 of judicial judgment. Whether the legislature can give 
 any other tribunal than the Supreme Court jurisdiction over all 
 is involving simply a controversy as to the right to money is 
 doubtful, for it seems that even where money alone is in dispute 
 there must be some limit to the jurisdiction of an intermediate 
 tribunal, otherwise it would not be inferior. But, however this 
 may be, it is clear that as to all controversies which are in their 
 nature inferior, as probate matters, controversies concerning 
 comparatively small sums of money, misdemeanors, and the 
 like, appellate jurisdiction may be given to an intermediate ap- 
 pellate tribunal. 1 For many years this principle has been rec- 
 ognized, for during the existence of the common pleas court 
 there were some cases where the court to which appeals were 
 allowed was the circuit court, and that court is now, and long 
 has been, the court of last resort in some cases originating be- 
 fore justices of the peace. 
 
 § 6. Inherent Powers of Constitutional Courts — All constitutional 
 courts are invested with inherent powers by the constitution. 
 This must necessarily be true, otherwise there could be no inde- 
 pendent judiciary. The legislature can not take from a court 
 the power to decide upon the validity of statutes, since to con- 
 cede this power to the legislature would make the legislature 
 the judge of its powers and thus break down the partition 
 between the legislative and the judicial departments of the 
 •rnment, nor can the legislature deprive the courts of power 
 over their own records ; this power is, it is clear, absolutely 
 essential to the independence of the judiciary. The principle 
 involved in the instances we have given justifies the conclusion. 
 that the legislature can not deprive the courts of the power to 
 prevent fraud upon their jurisdiction or process. 2 Upon the 
 
 -. Murphy, 55 Mo. 372; Smith v. State, 85 Ind. 318; Smythe v. Bos- 
 Mo. 584; Harper v. well, 117 Ind. 365; Boswell v. Boswell, 
 117 Ind. 599. Upon the general doctrine 
 
 2 Nealis Di( .7: Ind. 374; Cav- of the existence in all constitutional 
 h V. Smith, 84 Ind. 380; Sanders courts of inherent judicial power, the
 
 APPELLATE TRIBUNALS. 7 
 
 same principle it must be held that every constitutional court 
 has inherent power to preserve its dignity and independence by 
 punishing persons guilty of contempt. 1 It is true, no doubt, 
 that the legislature ma)- regulate the procedure, but it can not 
 in an} r manner destroy or impair the substantive power, for that 
 is above legislative reach. The fundamental principle to 
 which we have referred requires that it should be held that the 
 conduct of business, the course of argument and the like, are 
 matters for the determination of the courts and not for legisla- 
 tive decision. 2 The legislature may, of course, prescribe rules 
 of pleading and practice and require the courts to conform to 
 those rules, but it can not so far control the conduct of business 
 as to invade the domain of the judiciary. 3 It is very question- 
 able whether the legislature can direct how briefs shall be pre- 
 pared or arguments conducted, since the attempt to exercise 
 such power would seem to be an unauthorized encroachment 
 upon the province of the courts. 
 
 § 7. Power to Frame Rules — It is an ancient principle that 
 
 following cases will be found interest- 
 ing and instructive: United States v. 
 Hudson, 7 Cranch. 34; Houston v. 
 Williams, 13 Cal. 24; Underwood v. 
 McDuffie, 15 Mich. 361; Chandler v. 
 Nash, 5 Mich. 409; Greenough v. Green- 
 ough, 1 1 Pa. St. 489. See, also, Schoultz 
 v. McPheeters, 79 Ind. 373; Gregory v. 
 State, 94 Ind. 384; Kuntz v. Sumption, 
 117 Ind. 1; Wilkins v. State, 113 Ind. 
 
 5*4- 
 
 1 Ex parte Robinson, 19 Wall. 505; 
 Ex parte Terry, 12S U. S. 2S9; Ander- 
 son r. Dunn. 6 Wheat. 204; Little v. 
 State, 90 Ind. 33S; Holman v. State, 105 
 [nd.513; Hawkins v. State, 125 Ind. 570; 
 State v. Morrill. 16 Ark. 384; People:*. 
 Wilson, 64 111. 195; Clark v. People, 
 Breese (111.), 340; Ex parte Biggs, 64 
 N. C. 202; Com. v. Dandrige, 2 Ya. 
 Case, 40S; State v. Matthews, 37 X. 
 H. 450; /;/ ;-, Wollv. 11 Bush. (Kv.) 
 IS, in; Arnold v. Commonwealth, 
 
 80 Ky. 300, S. C. 44 Am. R. 4S0. 
 Courts have the inherent power to 
 protect themselves and their officers. 
 In re Neagle, 14 Sawyer U. S. C. C. 
 232, S. C. 5 Lawyers' Rep. Ann. R. 78. 
 The courts may protect themselves from 
 annoyance by travel on the highways. 
 Belvin v. Richmond, 85 Va. 574. 
 
 2 A very able and instructive paper 
 upon this general subject was read be- 
 fore the American Bar Association, 
 at a meeting held in August, 1S89, by 
 Judge Henry B. Brown. Reports ol 
 American liar Association, Vol. 12. p. 
 263. The author demonstrates the fact 
 that many statutes do trench upon the 
 judicial domain. 
 
 3 Smvthc v. Boswell, 117 Ind. 365. 
 The legislature may regulate procedure 
 but it can not destroy the power of con- 
 stitutional courts. Supervisors v. 
 Amight, 54 Mass. 672.
 
 APPELLATE PROCEDURE. 
 
 courts may prescribe rules for the conduct of business and this 
 power is an inherent one. so far, at least, as concerns the mode 
 of conducting the affairs of the court, 1 although, as has been 
 said, the power to prescribe general rules of procedure and 
 pleading binding upon the parties and the court, is a legislative 
 : but this legislative power is not broad enough to warrant 
 the conclusion that the legislature can control the action of the 
 court in matters of a purely judicial nature. It is not, and can 
 not be, within the legislative power to so fetter or control the 
 action of the courts in the conduct of business as to preclude 
 the exercise of judicial discretion or judgment. Such matters 
 must be left to the courts, otherwise judicial independence will 
 be annihilated and judges become mere passive instruments of 
 legislative will. It is difficult to define with exactness the line 
 which separates the legislative from the judicial power respect- 
 ing the general subject under consideration, but it is quite safe 
 to affirm that a constitutional court has power to prescribe rules 
 for its own direct government independent of express legisla- 
 tive enactments. 2 In so far as regards the personal conduct of 
 
 1 Attorney General v. Lun. 2 Wis. C. 105; Barnes v. Easton, 98 N. C. 116. 
 
 /;/ re Road McCandless Tp., no were cited. It follows, as a legitimate 
 
 5t.6o5, 1 Atl. R.594. Rules framed deduction from the proposition that the 
 
 by a court in the exercise of the power rules of court have the effect of law, that 
 
 i in it as the repository of that it is not only the right, but the duty of 
 
 element of governmental sovereignty the court, to enforce its rules as they 
 
 known as the judicial, have the force 
 and effect of rules of law. Rout v. 
 Ninde. in Ind. 597. and authorities 
 cited; Moulder v. Kempff, 115 Ind. 1.59. 
 As the rules of court have the force and 
 ' of law, parties and counsel must 
 
 are written. Parties have a right to 
 expect the court to enforce its rules, and 
 there is no reason for departing from 
 them in cases where they justly apply. 
 It may happen, as it does in all cases 
 where general rules prevail, that pecul- 
 
 them. In speaking of this duty it iar circumstances may justly takeapar- 
 said by the Supreme Court of ticular case outside of the rules. Ofthis 
 rolina in the case of Walker the court must judge, but the operation 
 I. C. 487, 490, that, "The of its rules can not be rightfully sus- 
 impri vail, to some pended without cause properly shown. 
 it, thai the rules of practice pre- 2 The statute in defining the powers 
 1 by tlii- court are merely direc- and jurisdiction of the Supreme Court 
 iy be ignored, disre- grants power to frame rules, but it is 
 1 and suspended almost, as of quite clear upon principle as well as 
 nistake. The court upon authority, that it needed no ex- 
 ample authority to make them." press legislative grant to invest the 
 ! K n» her - . Anderson, 0.3 X. court with that power.
 
 APPELLATE TRIBUNALS. 
 
 judges of constitutional courts in the exercise of the duties of 
 the judicial office it is the law that legislative power is ineffec- 
 tive to control them, for it is evident that without freedom of 
 judicial action government must degenerate into a system of 
 sovereign and supreme legislative power, and this can not be 
 allowed to take place under a republican form of government. 1 
 
 § 8. Where Judicial Power Resides — Judicial power can only 
 reside in courts, although powers in their nature judicial may 
 be conferred upon ministerial officers. 2 The power to decide 
 controversies between litigants is strictly judicial, 3 but judicial 
 power is not confined to the sole act of deciding or of giving 
 judgment, for judicial power extends beyond the simple act of 
 deciding or adjudging, and embraces many incidents connected 
 with the administration of justice. 4 Constitutions, as has often 
 been decided, are framed by organized communities and with 
 reference to existing things, 5 so that when a term having a 
 
 1 Nudd v. Burrows, 91 U. S. 426, S. 
 C. 23 U. S. (Law. Co. Ed.) 2S6; Indian- 
 apolis, etc., Co. v. Horst, 93 U. S. 291; 
 Houston v. Williams, 13 Cal. 24; 
 Vaughn v. Harp, 49 Ark. 160; In re 
 Janitor, $$ Wis. 410; Commissioners v. 
 Hall, 7 Watts (Pa.), 290; 1 Bryce's Am. 
 Com. 31; Lieber's Civil Liberty, 154; 
 Wilson's Congressional Government, 
 2, 36; 3 Burke's Works (Bohn's ed.), 
 no; Montesque's Spirit of Laws, t,^. 
 
 2 Flournoy v. Jeffersonville, 17 Ind. 
 169, S. C. 79 Am. Dec. 46S; Wilkins 
 v. State, 113 Ind. 514,519; Pennington v. 
 Streight, 54 Ind. 376; State v. Johnson, 
 105 Ind. 463, 467; Weaver v. Templin, 
 113 Ind. 298; Betts v. Dimon, 3 Conn. 
 107; Crane v. Camp, 12 Conn. 463; 
 Eastman v. State, 109 Ind. 27S; Orr v. 
 Meek, 111 Ind. 40; State v. Green, 
 112 Ind. 462. 
 
 3 Rhode Island v. Massachusetts, 12 
 Peters, 657, 71S; In re Cooper, 22 N. 
 Y.67, 82, 84; Sinking Fund Cases, 99 
 U. S. 700, 761; Maby v. Baxter, n 
 lhisk. 6S2, 699; Tindal v. Drake, 60 
 Ala. 177; In re Saline County, 45 
 
 Mo. 52. Judicial power proper can 
 not be conferred upon any other of- 
 ficers except those invested Avith power 
 under the direct or indirect pro- 
 vision of the constitution which vests 
 the judicial power of the State. Shoultz 
 v. McPheeters, 79 Ind. 373; Greenough 
 v. Greenough, n Pa. St^Sg; Gregory v. 
 State, 94 Ind. 384; Chandler v. Nash, 5 
 Mich. 409; Columbus, etc., Co. v. 
 Board, 65 Ind. 427; Hawkins v. Gov- 
 ernor, 1 Ark. 570; Speight v. People, 
 87 111. 595; Ex parte Randolph, 2 
 Brock, 447; Campbell v. Board. 11S 
 Ind. 119,222; Vandercook v. Williams, 
 106 Ind. 345, and cases cited; Wight 
 v. Wallbaum, 39 111. 555. 
 
 * In the matter of Cooper, 22 N. Y. 
 67; Striker v. Kelly, 2 Denio, 323; 
 State v. Noble, 11S Ind. 350, 360. 
 
 5 Johnston v. State, 12S Ind. 16, iS; 
 Durham v. State, 117 Ind. 477; State 
 v. Denny, 118 Ind*. 3S2; State v. Denny, 
 11S Ind. 449; Davis v. State, 119 Ind. 
 555' 556; Cooley's Const. Lim. (5th 
 ed.), 73.
 
 10 APPELLATE PROCEDURE. 
 
 known meaning is used, the inference is that it was used to sig- 
 nify what is embraced within the term. Thus, where the term 
 '• judicial power " is employed it is deemed to embrace all 
 things, which, by the consideration of courts and jurists, have 
 been embraced within the general powers and duties of courts. 
 It is not to be expected that a constitution, or even a statute, 
 will define the terms employed, or state in detail what things 
 are within the sweep of such terms. In the work of construc- 
 tion reference must, therefore, be made to the existing condition 
 of things as well as to the history of the past. Unsatisfactory 
 and clumsy work would indeed be done by one who did not 
 look beneath words to things. 
 
 § 9. Amplifying Jurisdiction — It is an ancient doctrine of the 
 common law r that, " It is the duty of a judge, when requisite, 
 to amplify the limits of his jurisdiction." 1 This long existing 
 doctrine is not without force even under systems such as ours, 
 where jurisdiction is limited and regulated by written laws, 
 although it can not, of course, be given effect in contravention 
 of effective statutory provisions. While its effect is circum- 
 scribed by written laws, it is, nevertheless, not without force. 
 Courts often tacitly act upon it, and so they must do in many 
 cases or else fail in doing what they are organized for the pur- 
 pose of doing, that is, of administering complete justice. In 
 construing remedial statutes this principle is often impliedly 
 invoked, and sometimes seemingly acted upon without a con- 
 sciousness of its existence. As the principle is part of the 
 common law, and, consequent^, part of the very foundation of 
 our whole system of jurisprudence, it is logical and just to 
 assume that statutes are enacted with reference to it, and, 
 indeed, to assume that constitutions are framed with reference 
 to it. 
 
 > 10. Influence of the Common Law — As the common law is 
 tlif foundation of our jurisprudence it can not be disregarded 
 in considering the formation of our courts, nor in determining 
 
 'Squire v. Ford, 9 Hare, 47. 57; 8 H. L. Cases, 338; Dart v. Dart, 32 
 
 Moses v. Macferlane, 2 Burr, 1005, L.J. P. M. & A. 125; Ashmole v. 
 
 ""-■ ■ .Short. 1 H. & N. 210, Wainwright, 2 Q. B. 837, S. C. 2 G. & 
 
 214; Litl - Martindale, 18 C B. 314; D. 217; 6 Jur. 729. 
 v. British Empire Ship
 
 APPELLATE TRIBUNALS. 
 
 11 
 
 questions of procedure. The progress of one who should 
 attempt to measure the powers of a court, ascertain its jurisdic- 
 tion, or apply rules of procedure without reference to the 
 common law would be very unsatisfactory. The influence of 
 the common law is, and must ever be, very great, both as to 
 the nature of a court, its essential powers, and its mode of 
 procedure. The principles of the common law are so closely 
 interwoven with all matters of a judicial nature that an acquaint- 
 ance with them is indispensable. 
 
 § 11. Supplying Statutory Omissions — Omissions in statutory 
 provisions are often supplied by the common law, and from 
 that source fundamental principles are frequently obtained. 
 Short-sighted men, deceived by the statement that all our 
 courts are created by written laws, sometimes act upon the 
 false theory that a rule or principle not found in the constitu- 
 tion or in the statute-book has no existence. It is, in truth, 
 impossible to justly conceive the powers and duties of courts 
 without reference to the fundamental principles of the unwritten 
 law, for that all-pervading power encircles all written laws 
 much as the air does the earth. Statutes are not often intelli- 
 gible without reference to the unwritten law, and, upon the 
 principle heretofore stated, constitutions must be construed with 
 reference to the fundamental principles recognized as existing 
 by their framers. There is, in fact, one great system of law in 
 which written enactments and unwritten principles have their 
 places and in which they unite to form one harmonious bodv of 
 law. 1 
 
 1 We do not, of course, mean to be un- that the common law remedies and 
 
 derstood as affirming that a casus omis- rules of procedure should remain in 
 
 stis in a statute can be supplied by the force. Fitch v. Creighton, 24 How. V. 
 
 courts. The rule is, we know, well set- S. 159; Broderick's Will, 21 Wall. ^03, 
 
 lied that the courts can not supply such 519; Clark v. Smith, 13 Pet. 19^. See, 
 
 an omission. In re Election of Ex- also, Holland v. Challen, no U. S. 15; 
 
 ecutive Officers (Neb.), 10 Law Rep. Borland v. Haven, 37 Fed. R. ^94; Van 
 
 Ann. S03. What we mean is this: Sickle v. Belknap (Ind.), 28 N. E- R- 
 
 Where the legislature has not under- 305. Our own court has enforced this 
 
 taken to make provision for all cases for doctrine with reference to a motion for 
 
 which the common law prescribed rem- a venire de novo as well as in reference 
 
 edies, the courts will act upon the pre- to other matters of procedure. Shaw p. 
 
 sumption, where there is nothing coun- Merchant's National Bank, 60 Ind. s ;. 
 tervailine it. that the legislature meant
 
 CIIAPTKR II. 
 
 APPELLATE JURISDICTION. 
 
 ■) 12. Jurisdiction — Definition. 
 
 i •. Consenl can nol confer jurisdic- 
 tion of the sub 
 
 i ). Fid it i< ius cases. 
 
 i ;. Appeal defined. 
 
 [6. Appellate jurisdiction defined. 
 
 17. Appellate jurisdiction one of re- 
 view. 
 
 [8. Jurisdiction for one purpose re- 
 1 for all. 
 
 $19. Statutory mode of review ex- 
 clusive. 
 
 20. Incidents of appellate jurisdiction. 
 
 21. Power of appellate tribunals to 
 
 frame judgments. 
 
 22. Grant of appellate jurisdiction. 
 
 23. Determination of the question of 
 
 the right ot" appeal. 
 
 24. Blending of legal and equitable 
 
 jurisdiction. 
 
 § 12. Jurisdiction — Definition — Jurisdiction is the authority to 
 hear and determine a legal controversy. Any movement of a 
 court in a matter in which it has authority to act is jurisdiction. 1 
 It' it appears upon the face of the record that there is authority 
 to move in the case, then, as a general rule, there is jurisdiction 
 to hear and determine the controversy, 2 and in order that this 
 may appear it is only necessary that the record should show 
 that the particular case is one of a class within the jurisdiction 
 of the court.' The general rule is, as is well known, that where 
 the court is one of general jurisdiction the presumption is that 
 
 1 Smith r*. Adams, 130 U. S. 107; 
 Rhode Island v. Massachusetts, 12 Pet- 
 er-. 657, 718; I'ni' -■. Arre- 
 dond ' rrignon t'. 
 Astor, 2 1 low R iggs - . fohn- 
 ■ Wall. I'*''. [87; Jackson v. 
 Smith, 120 Ind. 520; Hoard of Com. 
 v. Markle, p Ind. 96; Dequindre v. 
 William-. 3 1 Ind. ^44; State : . Wake- 
 field. 15 Atl. R. iSi. 
 
 - United State- :>. Arredondo, 12 
 Ex parte 
 ■ [93, -"7- 
 Bank, 10 Peters, 149, 
 
 17^; Jackson v. Smith, 120 Ind. 520; 
 State v. Wolever, 127 Ind. 306; Shel- 
 don r. Newton, 3 Ohio St. 494; Le Roy. 
 v. Clayton. 2 Sawyer, j.93, (.99; Babb 
 v. Bruere, 21, M0.App.604: Kendall v. 
 v. United State-, u Peters, 524, 623; 
 Smith v. Adams, 130 U. S. 167; Cor- 
 netl v. Williams, 20 Wall. 226; /// re 
 White. 17 Fed. R. 723; In re Bogart, 
 2 Sawyer, 396; Lantz :•. Maffett, 102 
 Ind. 23; Schroeder v. Merchants Ins. 
 Co., io| 111. 71; Push v. Hanson, 70 111. 
 j.80. 
 
 (12)
 
 APPELLATE JURISDICTION. 13 
 
 jurisdiction exists, and it is not necessary that the record should 
 affirmatively show the jurisdictional facts. 1 Jurisdiction of the 
 subject can not be given to any court by the parties since such 
 jurisdiction can be conferred only by law. 2 It is to be observed 
 that, as appeals are tried by the record, the rule first stated can 
 have little practical value in appellate procedure since the 
 question of jurisdiction must ordinarily be determined by the 
 recitals and statements of the record. 3 Where the record dis- 
 closes the fact that the appellate tribunal has no jurisdiction, 
 that tribunal will, of its own motion, dismiss the appeal, 4 un- 
 less there is a statute requiring that the case be remanded to 
 another court. Where there is such a statute the case should 
 be transferred to the proper court. 
 
 § 1 3. Consent can not confer Jurisdiction of Subject — It is a neces- 
 sary sequence from the two cardinal principles stated that parties 
 can not by consent confer upon the appellate tribunal authority 
 to decide questions which are not in the record, except in cases 
 where it has original jurisdicton. Where the question is one 
 of a purely appellate nature it can only be exhibited and deter- 
 mined by the record, so that when the appellate power is in- 
 voked the court must confine its investigation and its decision 
 to the record. It is, therefore, correctly held that where the 
 questions are not exhibited by the record the parties can not 
 
 1 Shewaker v. Bergman, 123 Ind. 155; . 3 Mc Arthur v. Schultz, 7S la. 364, S. 
 Bass Foundry, etc., v. Board, 115 Ind. C. 43 N. W. Rep. 223; Walker :•. 
 234; Board, etc., v. Leggett, 115 Ind. Steele, 121 Ind. 436, S. C. 22 N. E. Rep. 
 544; Chapell v. Shuee, 117 Ind. 4S1. 142. 
 
 See Questions that may be first made * Stamps v. Newton, 3 How. (Miss.) 
 
 on appeal, Chapter XX. 34; Stearic's Appeal, 3 Grant, 270; 
 
 2 Smith v. Myers, 109 Ind. 1; Rob- Dykeman v. Budd, 3 Wis. 640, 643; 
 ertson v. State, 109 Ind. 79; Doctor v. Verbeck v. Verbeck, 6 Wis. 157, 161; 
 Hartman, 74 Ind. 221; Trotter v. Neal, Cerro Gordo Co. v. Wright Co., 59 
 50 Ark. 340, S.C. 7 S.W. Rep. 384; State Iowa, 485; Musselman's Appeal, 101 
 T'.The Whitewater Canal Co., 8 Ind. 320; Pa. St. 165,169; Mathie v. Mcintosh, 
 State v. Richmond, 6 Foster (N. H.), 40 Wis. 120; Richards V. Lake Shore. 
 232; Baker v. Chisholm, 3 Tex. 157; etc., Co., 25 111. App. 344, S. C. 124 111. 
 Chapman v. Morgan, 2 Greene (la.), 516, 16 N. E. R. 909; Green v. Creigh- 
 374; Titus v. Relyea,8 Abbott's Pr. R. ton, 10 Smedes & M. 159, S. C. 48 Am. 
 177; Burns v. Nash, 23 111. App. 552; Dec. 742; In re Larson, 96 N. Y. 381. 
 In re Rade, 9 N. Y. Supp. S12.
 
 1 l APPELLATE PROCEDURE. 
 
 confer authority upon the appellate tribunal to decide them. 1 A 
 distinction exists, as indicated by what has been said, between 
 cases where the exercise of purely appellate authority is in- 
 voked and eases where the jurisdiction is original, or is in the 
 nature of original jurisdiction. As an instance of a case of the 
 last named class may be taken that of an application for a man- 
 date ; of the first class may be taken the case of a plea in 
 bar to the assignment of errors. It can not, indeed, be said 
 with strict accuracy that an application for a writ of mandate is 
 a matter of original jurisdiction save in rare instances, for such 
 applications are ordinarily in aid of the appellate jurisdiction, 
 but there are, nevertheless, cases where there is purely original 
 jurisdiction. 2 
 
 § 14. Fictitious Cases — Growing out of the general principles 
 stated and closely resembling the doctrine discussed in the 
 preceding paragraph, is the rule that appellate tribunals enter- 
 tain jurisdiction only of real questions arising in actual cases. 
 They will not determine questions where there is no actual con- 
 troversy, nor will they determine mere abstract or hypothetical 
 questions; 5 It is seldom, however, that the question whether 
 there is an actual controversy arises, for where a case proceeds 
 in the ordinary mode it will be assumed, in the absence of a 
 counter showing, that there is an actual controversy between the 
 parties. 
 
 £ 15. Appeal Defined — In order to secure an adequate and in- 
 telligent conception of what is meant by the term "appellate 
 jurisdiction " it is necessary to look with some care to the force 
 and meaning of the term " appeal " when used in law proced- 
 
 Newman, 35 Ind. generally, Crane v. Farmer (Col.), 23 
 
 i". Im this case the true rule was admi- Pac. 455; Planters Ins. Co. v. Cramer, 
 
 •ablv stated by Worden, ].. who said: 47 Miss. 200; Marbury v. Madison, 1 
 
 "The parties, however, bv theagreement Cranch. 137. 
 
 I, have attempted to present for 2 State v. Noble, 11S Ind. 350; Ex 
 
 our determination, certain questions not parte Griffiths, 11S Ind. 83. 
 
 presented by the record. This is an 3 Little v. Bowers, 134 U. S. 547; 
 
 appellate court, ami the agreement of Chicago, etc., Co. v. Dey (Iowa), 41 N. 
 
 the parties will not be effectual to con- W. R. 17; Pierse v. West, 29 Ind. 266. 
 
 vert it into a nisi prius tribunal." See, *
 
 APPELLATE JURISDICTION. 15 
 
 ure. The word " appeal " is very often inaccurately employed 
 even by judges and text writers, but for our present purpose it 
 is essential to gfive it a somewhat definite and restricted mean- 
 ing. The word, when accurately used in law matters, means 
 the removal of a suit in equity, or of an action at law, from an 
 inferior court to a superior court. 1 The word is sometimes ap- 
 plied to the removal of a matter from the decision of an inferior 
 officer to a superior officer, but this is not, in law affairs, an ac- 
 curate use of the term, 2 since the word, when properly used, 
 means the removal of a case from one court to another. The 
 matter of appeals is essentially, and throughout, judicial, and 
 there can, in legal contemplation, be no appeal where there is 
 no decision by a judicial tribunal. Two things are essential, 
 the decision of a judicial tribunal of original jurisdiction, and a 
 superior court invested with authority to review the decision of 
 the inferior tribunal. 3 
 
 § 16. Appellate Jurisdiction Defined — Appellate jurisdiction is 
 the authority of a superior tribunal to review, reverse, correct, 
 or affirm the decisions of an inferior judicial tribunal in cases 
 where such decisions are brought before the superior court pur- 
 suant to law. Appellate jurisdiction exists only in courts, and 
 is, strictly speaking, the authority to review what has been pre- 
 viously the subject of investigation and determination by a 
 court. 4 Judicial power resides in courts, and hence it is es- 
 
 1 Leach v. Blakely, 34 Vt. 134, 136; difference between a writ of error and 
 
 United States r.Wonson, 1 Gallison (U. an appeal, see Wiscart v. D'Auchy, 3 
 
 S.C. C), 5, 13. Under our system, an ap- Dallas, 321, 327. 
 
 peal removes a cause from an inferior 2 Hestres v. Brennan, 50 Cal. 210, 217. 
 
 court to one of superior jurisdiction. 3 This consideration becomes of im- 
 
 We do not deem it necessary to speak portance in considering the question of 
 
 of the limited effect given to the word the right of the legislature to authorize 
 
 " appeal " in jurisdictions where a writ an appeal from the decisions of admin- 
 
 of error is one of the modes of remov- istrative or ministerial officers upon 
 
 ing a case from an inferior to a superior questions not judicial in their nature, 
 
 court, inasmuch as under our law we 4 Judge Story says: "The essential 
 
 have only the one mode, that of appeal, criterion of appellate jurisdiction is that 
 
 It may be said that our simple system it revises and corrects the proceedings 
 
 is far preferable to the cumbersome in a cause already instituted, and does 
 
 system which has been adopted in many not create that cause. In reference to 
 
 of the States. For a statement of the judicial tribunals, an appellate juris-
 
 16 APPELLATE PROCEDURE. 
 
 sential that the original, as well as the appellate decision, 
 should be made by a court. It is clear enough that only a 
 court can revise judicial decisions, so that there is seldom diffi- 
 culty in determining the general right to assert appellate 
 authority ; but it is sometimes difficult to determine from what 
 decisions and from what officers or bodies an appeal will lie. 
 
 ii 17. Appellate Jurisdiction one of Review — It seems clear that 
 the exercise of what is strictly appellate jurisdiction can not be 
 invoked where there has been no decision by a court composed 
 of judges, and that an appeal will not lie directly to a superior 
 court of exclusive appellate jurisdiction from the decision of 
 bodies or officers possessing quasi judicial power, as, for in- 
 stance, the common council of a municipal corporation, or the 
 trustees of a township. There must be a decision by a court, 
 not simply the decision of a body with quasi judicial authority, 
 in order to entitle a party to ask a review by an appellate tri- 
 bunal. This must be true for the reason that where a court is 
 invested with appellate jurisdiction by the constitution it can 
 not be required to exercise purely original jurisdiction. 1 It is, 
 of course, true that where the constitution provides that original 
 jurisdiction may be imposed upon an appellate court, it may be 
 conferred by statute, 2 but where no original jurisdiction is con- 
 ferred, either by the constitution or by a statute enacted under 
 constitutional authority, none exists in a court essentially of 
 appellate jurisdiction. 3 It is evident from the nature of the two 
 kinds of jurisdiction that it would be inconsistent to invest one 
 court with both. Except to a very limited extent, both original 
 
 diction, therefore, necessarily implies l Marbury v. Madison, i Cranch. 137, 
 
 thai the subject-matter has already been 17^; Weston v. City Council, 2 Peters, 
 
 instituted in and acted upon by some 449. The appellate tribunal decides upon 
 
 other court, whose judgment or pro- its own jurisdiction; the trial court can 
 
 ceedings are £0 be revised. This ap- not settle that question for it. Ilunger- 
 
 pellate jurisdiction may be exercised in ford v. dishing, 8 Wis. 32 \\ Benson v. 
 
 a variety of tonus, and, indeed, in any Christian (Ind.), Nov. 17, 1891. 
 
 form which the legislature may choose * Osborne v. Bank, 9 Wheat. 738,820; 
 
 to prescribe, but still the substance Ex farte Henderson, 6 Fla. 279; Hawes 
 
 must exist before the form can be ap- v. People, 124 111. 560. 
 
 plied to it." j Story Const., § 1761. s Hubbell v. McCourt, 44 Wis. 584.
 
 APPELLATE JURISDICTION. yj 
 
 and appellate jurisdiction can not exist in the same tribunal 
 without trenching upon true principle. When, therefore, a 
 tribunal is created for appellate purposes and is essentially a 
 court for the trial of appeals, original jurisdiction can not be 
 attributed to it where there are no constitutional or statutory 
 provisions conferring such jurisdiction. 
 
 §18. Jurisdiction for One Purpose Retained for All— It has been 
 held that where an appellate tribunal obtains jurisdiction of a 
 case for one purpose it will retain it for all, and that it will give 
 judgment upon all questions properly presented for its decision. 1 
 This ruling is in harmony with the rule which has long pre- 
 vailed, that where a court of equity obtains jurisdiction for one 
 purpose it will retain it for all purposes. 2 This must necessarily 
 be the rule, since any other would involve the legal absurdity 
 of disjointing a single case and turning over one fragment to 
 one court and another parcel to another court. 3 This conclusion 
 does not conflict with that established by the decisions of the 
 Supreme Court of the United States, wherein it is declared that 
 in appeals from the State courts only Federal questions will be 
 decided by that tribunal. 4 These decisions do not control the 
 question for the obvious reason that the Federal court is a 
 tribunal of a different and distinct government from that of the 
 State, and has exclusive ultimate jurisdiction of Federal ques- 
 tions. 
 
 1 Pittnam v. Wakefield (Ky.), 13 S. rule is that if a party appeals from a 
 W. Rep. 525; Feder v. Field, 117 Ind. part of a decree, he admits the remain- 
 3S6. der to be correct." 2 Daniels' Ch. Pr. 
 
 2 Wood v. Ostram, 29 Ind. 177; Field (15th ed.), 1467; Clowes v. Dickenson, 
 v. Holzman, 93 Ind. 205; Kimble v. 8 Cow. 32S; Kelsey v . Western, 2 N. Y. 
 Seal, 92 Ind. 276, 282; Carmichael v. 500, 505; Norbury v. Meade, 3 Bligh, 
 Adams, 91 Ind. 526; Faught v. Faught, 261; Parker v. Morrell, 2 Phil. 453, 461. 
 98 Ind. 470, 472; Feder v. Field, 117 i In re Kemmler, 136 U. S. 436, 34 
 Ind. 3S6, 3S9; Albrecht v. The C. C. Law. Co. Ed. 439; Giles v. Little, 134 
 Foster Lumber Co. (Ind.), 26 N. E. R. U. S. 645, 36 Law. Co. Ed. 623; City of 
 *57- San Francisco -'. Itsell, 133 U. S. 65, 33 
 
 3 "A party Avill not be allowed to ap- Law. Co. Ed. 241; Beatty v. Benton, 
 peal piecemeal; that is, he can not ap- 135 U. S. 244, 34 Law. Co. Ed. 124; 
 peal from part of a decree by one pe- Hale v. Akers, 132 U. S. 554, ^ Law. 
 tition and afterwards appeal from an- Co. Ed. 442. 
 
 other part by another petition. The 
 
 2
 
 18 APPELLATE PROCEDURE. 
 
 § 19. Statutory Mode of Review Exclusive — A question as to the 
 mode of reviewing judgments may be here touched upon, for 
 although not directly connected with the subject of our discus- 
 sion, it is yet so nearly allied to it as to render its discussion con- 
 venient and not altogether illogical. It may be said with ac- 
 curacy that the general rule is that where a valid statute pro- 
 vides the mode of reviewing a judgment, that mode must be 
 pursued. 1 This question connects itself with the general subject 
 of appellate jurisdiction, inasmuch as a court can not have 
 authority over a case where parties assume to bring it within 
 the authority of the court in a mode wholly unauthorized by law. 
 The rule w r e have stated can not, of course, control where there 
 is a law under which jurisdiction may exist over the general 
 subject and errors or irregularities occur in attempting to com- 
 ply with the law. Nor is the rule so important under a system 
 like ours, where there is one method of securing a review of a 
 judgment by an appellate tribunal, as it is in States where there 
 are both appeals and writs of errors. But, as will appear in 
 subsequent pages, the rule is not without importance in this 
 State. 
 
 § 20. Incidents of Appellate Jurisdiction — Appellate jurisdic- 
 tion is naturally the essential attribute of a court created by 
 constitutional warrant for reviewing the decisions of inferior 
 courts. The jurisdiction of an appellate tribunal is not exer- 
 cised over ministerial or administrative officers directly, for 
 when it exercises such authority it proceeds as a court of orig- 
 inal jurisdiction. 2 But it is not to be understood that an ex- 
 press statutory provision is required to confer upon an appellate 
 tribunal authority to exercise auxiliary authority in aid of its 
 appellate power, although such auxiliary authority may be in 
 
 1 Anderson v. People, 2S III. App. court said. "The term, then, 'appellate 
 317; Lang Syne Gold Mining Co. v. jurisdiction' as used in the constitution 
 
 127, S. C. t8 Pac. R. has some other meaning than that there 
 
 Stal v. Easton, etc., Co. (Md.), should be merely an appeal from some 
 
 20 At;. K. : jj; Idaho, etc. Co. v. Brad- decision or act of an officer of the State, 
 
 bury, [32 U. S. 509, 33 Law. Co. Ed. and it is this meaning of the term that 
 
 toSup.Ct. R. 177. i> sought for." See, also, Crane v. 
 
 2 Auditor of State t\ The Atchison, Giles, 3 Kan. 54; Ex parte Logan 
 etc., Co., 6 Kan. 500. In that case the Branch Bank, 1 Ohio St. 433.
 
 APPELLATE JURISDICTION. 19 
 
 its nature original, for all courts of the rank of appellate courts 
 proper have such general powers as are necessary to enable 
 them to effectually exercise the jurisdiction conferred upon 
 them. 
 
 § 21. Power of Appellate Tribunals to frame Judgments — The 
 
 general authority to review and revise necessarily includes the 
 right to enforce the law and administer justice. In the exercise 
 of this authority an appellate tribunal may so mold its judg- 
 ments as to secure the proper relief to the parties entitled to it. 1 
 The fact that a question may be presented in a particular mode 
 does not always restrict an appellate court to a particular course ; 
 for it may, upon an inspection of the whole record, pronounce 
 such a judgment as will secure justice to the parties. It is in- 
 conceivable that a high court of justice, such as an appellate 
 tribunal, may not, upon an investigation of the record, so frame 
 its judgment as to prevent the defeat of justice by. technical 
 and arbitrary rules. 2 The denial of this right involves the af- 
 firmation that the highest courts can not award justice, and this 
 conclusion can not be vindicated, since the underlying and sov- 
 ereign principle is that the right of appeal insures to litigants 
 who have obeyed the substantive rules of law and conformed 
 to the rules of procedure a judgment awarding them justice 
 under the laws of the land. It must be true, therefore, that a 
 high appellate tribunal may deliver and enforce a judgment 
 
 1 In Piqua Bank v. Knoup, 6 Ohio, vested exercises a supervising or cor- 
 
 342, it was said by one of the judges recting control." 
 
 that, "Appellate jurisdiction is the 2 This general doctrine is fully recog- 
 cognizance which a superior court nized in Buchanan v. Milligan, 10S Ind. 
 takes of a case removed to it by appeal 433, 435; Shannon v. Hay, 106 Ind. 5S9; 
 or writ of error from the decision of an Sohn v. Cambern, 106 Ind. 302; West- 
 inferior tribunal. The power of the ern Union Tel. Co. v. Brown, 108 Ind. 
 appellate court necessarily includes the 53S; Cottrell v. Nixon, 109 Ind. 378; 
 power not only to reverse the judgment, Roberts v. Lindley, 121 Ind. 56,59; 
 but also to control and direct the sub- Louisville, etc., Co. v. Etzler, 119 Ind. 
 sequent action of the subordinate court. 39; Murdock v. Cox, 118 Ind. 266, 269; 
 Appellate jurisdiction, therefore, always Brown v. Jones, 113 Ind. 46, 50; Bar- 
 implies the existence of subordinate tholomew v. Pierson, 112 Ind. 430; 
 courts in the same judicial organization Parker v. Hubble, 75 Ind. 580; Yerkes 
 over which the court in which it is v. Sabin, 97 Ind. 141.
 
 APPELLATE PROCEDURE. 
 
 that will prevent wrong and award justice to the parties en- 
 titled to it. 
 
 § 22. Grant of Appellate Jurisdiction — The grant of appellate 
 jurisdiction, whether made by the constitution or by a statute, 
 necessarily vests in the tribunal designated all powers of an 
 incidental nature that are required to make the granted juris- 
 diction effective. Upon this principle it is held that in every 
 appellate tribunal resides the power to coerce obedience to 
 its orders, writs and mandates. 1 This incidental power may, 
 indeed, be safely placed on higher ground, for it may be se- 
 curely rested on the ground that all appellate tribunals, as 
 of the very essence of their existence, possess inherent judi- 
 cial powers. It seems impossible to conceive of the existence 
 ol a high judicial tribunal so hedged in by legislative restric- 
 tions as to be incapable of effectively and freely exercising 
 the branch of sovereign power which is placed, and must of 
 necessity be placed, in the judiciary in all free governments. 
 It the legislature can shackle the judicial power so that its 
 judgments can not be made effective, or its functions exercised 
 as the judges deem it right and just to exercise them, then, 
 courts are nothing more than the mere passive organs of legis- 
 lative will, pronouncing legislative decisions and not judicial 
 judgments. It is, perhaps, not now possible to draw the exact 
 line between the two departments, but there is a line, and that 
 line has been again and again recognized as existing, although 
 it has never been traced with distinctness. 
 
 >' 23. Determination of the Question of Right of Appeal — An es- 
 sential incident of superior appellate jurisdiction is that the ap- 
 pellate tribunal must determine wdien an appeal will lie and 
 ether it is well taken; the decision of these questions is for 
 tli<- higher tribunal, and its freedom of action can not be fettered 
 
 1 Mitcheson Ky.) Issues of fact may be formed on appeal 
 
 324. This incidental power is inherent and there determined. Brown v. Car- 
 
 in every appellate tribunal. Inorderto raway, 47 Miss. 668; Planters Ins. Co. 
 
 maintain it- existence and enforce its :•. Cramer. 17 Miv<. 200, 206; Belew v. 
 
 the courts may assume jurisdic- Jones, 56 Miss. ^j2. 
 ti.m essentially original in its nature.
 
 APPELLATE JURISDICTION'. 21 
 
 by the rulings of the lower court. 1 It is not, of course, within 
 the power of any tribunal to create an independent system of 
 appellate procedure, 2 for all courts, high or low, must yield to 
 the law of the land. But it is for the superior appellate tribunal 
 to determine the nature and extent of its jurisdiction, guided 
 and limited, however, by the statutory and common law, and it 
 is also for that tribunal to pronounce the ultimate decision upon 
 the question whether an appeal has been properly taken. 
 
 § 24. Blending of Legal and Equitable Jurisdiction — The appel- 
 late jurisdiction under statutes combining in one system legal 
 and equitable rights and providing for one remedial system is 
 necessarily different in detail from appellate jurisdiction in the 
 States where the distinction between law and equity is rigidly 
 maintained, but the same great principles prevail whether the 
 old system remains in force in all its vigor or whether it is 
 modified by the code svstem. 3 The reformed system is simpler, 
 more efficacious and less technical than the old with its cum- 
 bersome petitions for leave to take out a writ of error and its 
 intricate machinery. Appeal under the code system is much 
 more than an appeal under the old system, and, yet, in some 
 respects an appeal under the code system may be less compre- 
 hensive in its scope than an appeal under the old system. 4 An 
 
 1 Keighler v. Savage, etc., Co., 12 Md. wards v. Vandemack, 13 111. 633; Street 
 3S3; Lester v. Howard, 24 Md. 233; v. Francis, 3 Ohio, 277; Groverr. Coon, 
 Thompson v. McKim, 6 Har. & J. 302; 1 N. Y. 536; McNulty v. Batty, 10 
 Armstrong v. Athens Co., 16 Peters, How. (U. S.) 71. 
 
 281; United States v. Emholt, 105 U. 3 The truth is that the great and 
 
 S. 414. fundamental principles of remedial jus- 
 
 2 In the case of the Attorney General tice must be the same no matter by 
 v. Sillem, 10 H. L. Cases, 704, Lord what name they may be called or what 
 Chancellor Westbury said: "Thecrea- forms they may assume. Legislatures 
 tion of a new right of appeal is plainly may modify forms and change names, 
 an act which requires legislative author- but the essential attributes of the great 
 itv. The court from which the appeal principles of remedial justice can not 
 is given, and the court to which it is be changed bv legislative declarations. 
 given, must both be bound, and that 4 "A writ of error," says Judge Cur- 
 must be the act of some higher power, tis, ''carries up nothing but questions 
 It is not competent to either tribunal, or of law, and these questions of law are 
 to both collectively, to create any such to be determined according to the facts 
 right." The Schooner Constitution v. which are found in the record — an ap- 
 Woodworth, 1 Scam. (111.) 511; Ed- peal carries up everything — it sub>ti-
 
 
 APPELLATE PROCEDURE. 
 
 appeal under the code system combines all that could be ac- 
 complished by a writ of error and all of value that could be 
 omplished by an appeal under the rules of the chancery 
 svstem. It unites in one system the merits of the two former 
 systems and excludes the vices of arbitrariness and technicality 
 which deformed the common law mode of procedure. In the 
 appellate jurisdiction of States with statutes similar to ours the 
 chancery element is the predominant one but the common law- 
 element remains, nevertheless, an important factor. 
 
 tutes the higher court in place of the 
 lower court, and all questions, whether 
 of law or of fact, depending upon evi- 
 dence or law are re-examinable by the 
 appellate court just as they were orig- 
 inally examined by the court having 
 original jurisdiction." Jurisdiction of 
 the Courts of the United States, 6l. It 
 is evident that an appeal under the code 
 
 • m do^s not necessarily bring up 
 the entire case; it is indeed doubtful 
 
 whether it necessarily had that effect 
 in every instance under the former sys- 
 tem. Vanderveer v. Ilolcomb, 17 N.J. 
 Eq. 547. Nor does an appeal under the 
 code system require the appellate 
 tribunal to re-examine questions of law 
 and fact as they were examined in the 
 trial court. So far as concerns ques- 
 tions of law examinable on appeal the 
 rule which prevailed in the common 
 law procedure is still the dominant one.
 
 CHAPTER III. 
 
 THE SUPREME COURT. 
 
 425. The rank of the Supreme Court. §36. 
 
 26. The repository of appellate juris- 37. 
 
 diction. 38. 
 
 27. Can not be transformed into a 39. 
 
 nisi fritis court. 40. 
 
 28. Mode of procedure. 41. 
 
 29. Trial of questions of fact. 42. 
 
 30. No right to trial by jury on appeal. 
 
 31. Territorial jurisdiction. 43. 
 
 32. Constitutional questions. 44. 
 
 33. Howconstitutionalquestions must 
 
 appear. 45. 
 
 34. Statutory jurisdiction. 46. 
 
 35. Classes of cases taken from the 
 
 jurisdiction of the Supreme 
 Court. 
 
 Incidents of a class go with it. 
 
 Equity cases. 
 
 What are considered equity cases. 
 
 Foreclosure of liens on property. 
 
 Title to land — Cases involving. 
 
 Prosecutions for felony. 
 
 Actions to recover statutory pen- 
 alties. 
 
 Municipal ordinances. 
 
 Where the principal appellate jur- 
 isdiction is vested. 
 
 Inherent powers. 
 
 Opinions — Constitutional re- 
 quirements. 
 
 § 25. The Rank of the Supreme Conrt — The Supreme Court is 
 the highest judicial tribunal of the State. This conclusion is 
 required by the words of the constitution. 1 But there is an ad- 
 ditional reason for the conclusion stated. In the very necessity 
 created by a system of government of delegated and distributed 
 powers there must be lodged somewhere supreme and para- 
 mount judicial power. It is inconceivable that one element of 
 sovereign power can be so dissected and distributed that it may 
 be parceled out among several tribunals. 2 Supreme judicial 
 power is no more capable of partition than is the executive or 
 the legislative power. If it were, there could be no court of 
 
 1 Const., Article 7, §§ 1 to 4; Tesh 
 v. Commonwealth, 4 Dana (Ky.), 522; 
 Frame v. Trebble, 1 J. J. Marshall 
 (Ky.), 205; Stark v. Thompson, 3 J. 
 J. Marshall (Ky.), 300. 
 
 2 We do not enter into the field of 
 strife so much fought over by those who 
 
 maintain that sovereign power is indi- 
 visible and those who oppose. We 
 content ourselves with saying that a 
 unit of power, such as the judicial, can 
 not be so cut into parts so as to place 
 one supreme part in one court and an- 
 other supreme part in another court. 
 
 (23)
 
 •j! APPELLATE PROCEDURE. 
 
 final resort, and if no such court, then, no question could ever 
 be finally and authoritatively decided. If there were no tribu- 
 nal possessing power to put a ipiestion at rest, confusion leading 
 to anarchy would necessarily be the ultimate result. It is true, 
 therefore, that there is, and must be, in every organized free 
 government, a supreme judicial tribunal. 
 
 g 26. Repository of Appellate Jurisdiction — The Supreme Court, 
 as the highest judicial tribunal of the commonwealth, necessa- 
 rily possesses all the appellate jurisdiction distributed by the 
 constitution or the laws not elsewhere lodged by valid enact- 
 ments. What part of the appellate jurisdiction less than that 
 which is in its nature paramount and supreme may be taken 
 from it and conferred upon inferior tribunals, it would be very 
 difficult to determine, but this much is certain : All of the ap- 
 pellate jurisdiction not expressly or impliedly taken from the 
 Supreme Court remains in that tribunal. All jurisdiction of an 
 appellate character conferred upon other tribunals is carved 
 out of that which originally dwelt in the Supreme Court. The 
 great jurisdictional field is that of the Supreme Court, and all' 
 that is given to other tribunals is taken from that great field, 
 leaving all parts and parcels of the field not taken in the tribu- 
 nal originally the possessor of it. 1 A statute is required to sub- 
 tract from its jurisdiction, and it loses only what is validly sub- 
 tracted. 
 
 § 27. Can not be Transformed into a Nisi Prius Court — The Su- 
 preme Court is essentially and primarily an appellate tribunal. 
 The constitution ordains that this shall be its character. It is true 
 that it is provided, that "it shall also have such original juris- 
 diction as the general assembly may confer,"- but this isolated 
 and fragmentary provision can not, in view of other constitu- 
 tional provisions and of the purpose for which the court was 
 created, be construed as empowering the legislature to trans- 
 form the highest judicial tribunal of the State into a mere nisi 
 prius court. :! Constitutions are to be construed by the light of 
 
 barU Sweeney, 126 Ind. 583. outlined in the preceding paragraph, 
 
 2 Const., Article 7. § 4. that the highesl constitutional tribunal 
 
 furthei reasons of the State must, because of the parti-
 
 THE SUPREME COURT. 25 
 
 attendant facts and with reference to existing systems. These 
 considerations, when taken in connection with other provisions 
 of the constitution and in connection with the fact that the 
 article in which the provision is found distributes the whole 
 judicial power of the State, forbid the conclusion that the high- 
 est court of the State may be made a mere trial court and com- 
 pelled to hear and determine controversies as a court of orig- 
 inal jurisdiction. Doubtless some original jurisdiction may be 
 conferred upon the Supreme Court, but a complete and radical 
 transformation can not be effected by legislative enactments. 
 
 § 28. Mode of Procedure — As the Supreme Court is essentially 
 an appellate tribunal its powers are necessarily such as are in- 
 herent in such a tribunal or are conferred upon it by constitu- 
 tional statutes, and its modes of procedure are those of a 
 tribunal of its rank and character. It does not proceed as a 
 trial court but as a court of errors or appeals. Questions of 
 fact may, in rare instances, require decision as original ques- 
 tions, but even in hearing and deciding such questions it does 
 not proceed as a trial court of original jurisdiction. All ques- 
 tions of fact are, of necessity, connected with the appellate 
 power of the court, and, therefore, are not, except possibly in 
 rare cases where the court is invested with original jurisdiction, 
 to be disposed of as independent issues originating in a trial 
 court. It seems clear that, whether trying questions of fact or 
 of law, the Supreme Court acts as an appellate tribunal unless 
 the case is one where a valid statute expressly or impliedly re- 
 quires it to act as a court of original jurisdiction. If it does 
 act as an appellate tribunal it is not bound to call a jury, al- 
 though the question for decision may be one of fact. 
 
 § 29. Trial of Questions of Fact — It is very doubtful whether 
 an appellate tribunal acting as such can call a jury to decide a 
 question of fact for it, 1 as there is no law providing for such a 
 
 tion of the governmental departments, preme Court has authority to call a 
 
 be one of final resort, where litigation jury. Buskirk's Practice, 117. This 
 
 may be ended by a decision from which we think is an erroneous conclusion as 
 
 there is no further appeal. will appear from the text. The House 
 
 1 Judge Buskirk declares that the Su- of Lords of England or the Supreme
 
 Al'I'KI.LA'l b PROCEDURE. 
 
 proceeding. It would require judicial legislation to make pro- 
 vision for summoning and impaneling a jury, and, certainly, 
 the court has no legislative power. It is true that the legisla- 
 ture has assumed to confer upon the court authority to make 
 rules for the trial of questions of fact. 1 But this assumption of 
 power is found ationless, for these reasons: First. Legislative 
 power can not be delegated. 2 Second. Only judicial duties 
 can be devolved upon a court. 3 Another consideration exerts 
 an important influence upon the question, and that is this: 
 Trial by jury is not an incident of appellate jurisdiction. It is, 
 therefore, quite doubtful whether the legislature has power to 
 enact a statute compelling the Supreme Court to summon a 
 jury to decide any question. It seems clear, at all events, that 
 the constitution imposes upon the court the duty of deciding 
 all questions brought before it as an appellate tribunal, and, 
 that, if this be true, the duty can not be evaded or delegated. 
 
 ^ 30. No Right to Trial by Jury on Appeal — It is quite clear that 
 the Supreme Court is not, under existing statutes, obliged to 
 call a jury to decide any question. 4 Our constitution does not 
 create the right of trial by jury ; it simply provides that the 
 "trial by jury shall remain inviolate." 5 This provision refers 
 to the great right of trial by jury as created and preserved by 
 the common law." As the right to trial by jury in appellate 
 
 I of the United States have cer- Cooler's Constitutional Lim., 139, 14S. 
 
 tainly not called juries, nor, so far as 4 The Board of Commissioners of 
 
 an ascertain, has any other court of Huntington Co. v. Brown, 14 Ind. 191. 
 
 last resort, and we can conceive no 5 Const., Article 1, § 20. 
 
 ■ from which a righl to call a jury 6 Anderson v. Caldwell, 91 Ind. 451, 
 
 can be derived. Certainly not from the 455; Indianapolis, etc., Co. v. Christian, 
 
 common law. It seems to us thai the 93 Ind. 360; Ross V. Davis, 97 Ind. 79; 
 
 duty of deciding is devolved upon the Lipes v. Hand, 104 Ind. 503; Laverty 
 
 t and can not be delegated, in whole v. State, tog Ind. 217; Pennsylvania 
 
 or in uirv. R. R. Co. :\ First German Lutheran 
 
 1 R. S. 1- Congregation, 53 Pa. St. 445; In re 
 
 Cal. 194; In Lower Chatham, 35 X.J. L. 497; Mr- 
 
 ial, 63 \ H.574; Gould Kinney v. Mononghela Co.. 2 Harris 
 
 v. Raymond, 59 \ 11. 260; In re Pa- (Pa.), 65; Kendall v. Post, 8 Oregon, 
 
 $2 Fed. R. 241; Doe v. 141; Livingston v. Mayor, 8 Wend. 85; 
 
 idine, 6 Wall. (.58. Heyneman v. Blake, 19 Cal. 579; Ames 
 
 parte Griffiths, 118 Ind. 83, v. Lake Superior, etc., Co., 21 Minn. 
 
 Principles of Const. Law. 53; 241.
 
 THE SUPREME COURT. 27 
 
 courts did not exist at common law, and as our constitution 
 does not create the right, it follows that no court of exclusively 
 appellate jurisdiction is bound to try questions of fact by a jury. 
 It has never been done, and, as said by a learned author, " is 
 never likely to be done." i 
 
 § 31. Territorial Jurisdiction — The territorial jurisdiction of the 
 Supreme Court is co-extensive with the State. 2 The constitu- 
 tion defines the boundaries of the state, and under the con- 
 struction given it, the exclusive jurisdiction 3 of the State extends 
 at least to low water mark on the Ohio river. 4 The countv 
 bordering on the river is, of course, the seat of original juris- 
 diction, and the appellate tribunal acquires jurisdiction by ap- 
 peal from the local courts. It is probably true that the juris- 
 diction of our courts over the Ohio river is to some extent con- 
 current and not exclusive. If this be true, then it would seem 
 to follow that, where the cause of action grows out of an act 
 done on a river where the jurisdiction is concurrent, jurisdiction 
 remains with the court which first acquires it. 
 
 § 32. Constitutional Questions — Constitutional questions are for 
 the Supreme Court in every case where there is a right of ap- 
 peal, no matter what may be the nature of the case in which 
 they arise or the class to which the case in which thev arise be- 
 longs. The act creating the Appellate Court so provides, but 
 without any such provision it is evident that jurisdiction is in 
 the Supreme Court. It is, of course, easy to declare that 
 all constitutional questions are for the Supreme Court, but it is 
 
 1 2 Works Pr., § 10S7. Wis. 291; Withers v. Buckley, 20 How. 
 
 2 Const., Article 7, § 4. 84; Handly v. Anthony, 5 Wheat. 374. 
 
 3 Const., Article 14. But, see Indiana v. Kentucky, 136 U. S. 
 
 4 Carlisle v. State, 32 Ind. 55; Sher- 479. 
 
 lock v. Ailing, 44 Ind. 184; Dougan v. 5 Questions of such grave importance, 
 
 State (Ind.), 25 N. E. R. 171; Dorsey affecting the organic law itself and aris- 
 
 v. State (Ind.), 25 N. E. R. 350; Welsh ing upon the enactments of the law 
 
 V. State (Ind.), 25 N. E. R.8S3; McFall making power, demand the highest ex- 
 
 v. Commonwealth, 2 Metcf. (Ky.) 394. ercise of judicial power. It seems clear, 
 
 See, generally, People v. Tibbitts, 19 therefore, that their ultimate decision 
 
 N. V. 523; Parker v. Cutler Milldam must be by the highest court oi the 
 
 Co., 20 Me. 353; Stoughton v. State, 5 commonwealth.
 
 APPELLATE PROCEDURE. 
 
 by no means easy to say when such questions are so presented 
 as to require a decision. As is well known, courts will only 
 decide constitutional questions when they are in the record and 
 are manifestly necessary to a final determination of the case. 1 
 It is also well settled that a party not affected by a statute can 
 not present a question as to its validity and compel a decision. - 
 
 § 33. How Constitutional Questions must Appear— It must fairly 
 appear that a constitutional question is in the record, and that 
 the party who assumes to make the question has a right to do 
 but these things need not conclusively or even decisively 
 appear, for if it appears, from an inspection of the record, that 
 there is reason for inferring or adjudging that the record does 
 present a constitutional question, jurisdiction is in the Supreme 
 Court. If it were held otherwise, it might deprive a party of 
 the right to a decision by the Supreme Court, since it would 
 leave the question whether the validity of a statute is involved 
 to the Appellate Court, and its decision would shut off the right 
 of a party to invoke the judgment of the tribunal to which juris- 
 diction over such questions is committed. Mere assertion that 
 a constitutional question is presented will not be sufficient, but 
 if it appears that the question whether a statute is or is not 
 valid is involved, is a fairly debatable one, the case belongs to 
 the Supreme Court. 3 Reasonable ground for asserting that a 
 constitutional question is involved should be deemed sufficient 
 to establish the jurisdiction of the tribunal invested with author- 
 itv over such questions, for it can not be justly asserted that the 
 
 1 Hoover w.Wood, g Ind. 286; Ireland People v. Rensselaer, etc., Co., 15 
 
 stine, etc., Turnpike Co., [9 ( >hio Wend. 1 13. S. C. 30 Am. Dec. 33; Sin- 
 
 3 nith v. Speed, 50 Ala. 276; clair v. Jackson, S Cow. 543; Antoni 
 
 i; Mich. 76; Ex v. Wright, -•-: Gratt. 833, 857; hi re 
 
 parte Randolphs Brock, 117; Mobile, Wellington, 16 Pick. 87, 96; Jom 
 
 Black, ^8 Ala. 540; Williamson v. Carl- 
 
 - Wagner v. Town ><\' Garrett, 118 ton, 51 Me. 149. 
 
 liul. ii)-. Commonwealth v. Wright, 3 State :■. Elam, 21 Mo. App. 290; 
 
 79 K-. -'-•. S. C. (j Am. R. 203; Mar- Kamerick v. Castleman, 29 Mo. App. 
 
 A hi. in Bush. Kv. 681; 658; /V.v/', § 49. 
 Smith ■ . McC arthy, 56 Pa. St. $yy,
 
 THE SUPREME COURT. 29 
 
 Appellate Court can foreclose the right of the parties by decid- 
 ing that no such question is involved in the case. 1 
 
 § 34. Statutory Jurisdiction — The subject of the statutory juris- 
 diction of the Supreme Court may be introduced by repeating 
 what has been in substance already said, that the whole appel- 
 late jurisdiction, however created, is in that tribunal, save onlv 
 as parts or parcels of the jurisdiction have been taken from it 
 and lodged elsewhere. The act creating the Appellate Court 
 does take some of the jurisdiction from the Supreme Court, and 
 to that act we must look to ascertain what jurisdiction has been 
 taken from the Supreme Court. 2 In considering, as we shall 
 presently do, the subject of the jurisdiction of the Appellate 
 Court we shall show what classes of cases go to that tribunal 
 and, in doing that, shall incidentally show what cases remain 
 in the Supreme Court. 
 
 § 35. Classes of Cases Taken from the Jurisdiction of the Supreme 
 Court — The cases which fall within the jurisdiction of the Ap- 
 pellate Court may, in a very general way, 3 be said to be these : 
 All prosecutions for misdemeanors, actions which originate be- 
 fore a justice of the peace, all actions for the recovery of money 
 only where the amount in controversy does not exceed one 
 thousand dollars, all actions for the recovery of specific per- 
 
 1 Ex parte Sweeney, 126 Ind. 583; can not be determined by an inferior 
 
 Chaplin v. Commissioners of High- tribunal. The effect of the order of the 
 
 ways, 126 111. 264, 274; McCormick v. Supreme Court directing a transfer of 
 
 St. Louis, etc., Co., 20 Mo. App. 65; the case has been held to conclusively 
 
 State v. Kaub, 15 Mo. App. 433; Clark- adjudge that no constitutional questions 
 
 son v. Guernsey, etc., Co., 22 Mo. are presented. State v. Farrell, 23 Mo. 
 
 App. 109; Benson v. Christian (Ind.), App. 176; State v. Kaub, 23 Mo. App. 
 
 Nov. 19, 1891; Benson v. Christian 177. 
 
 (Ind. App. Ct.), Oct. 30, 1891. This 2 Act approved February 28, 1891, 
 is in harmony with the general doctrine Acts of 1891^.39. See, Post, Chap- 
 that the ultimate decision of the ques- ter IV, Ex parte Sweeney, 126 Ind. 5S3. 
 tion, whether a case is or is not appeal- 3 It is only necessary to speak of the 
 able, must be made by the tribunal cases within the jurisdiction of the Ap- 
 which the law invests with power to pellate Court in a very general way as 
 finally decide the case. Whether an the subject is treated at length in Chap- 
 appeal lies is generally a question for ter IV. See, also, Ex parte Sweeney, 
 the higher court, since it must deter- 126 Ind. 5S3. 
 mine its own jurisdiction ; that question
 
 30 APPELLATE PROCEDURE. 
 
 ><>nal property, all actions for the recovery of demised premises 
 where the relation of landlord and tenant exists, and appeals from 
 judgments or orders allowing or disallowing claims against dece- 
 dents' estates. These cases, with all their incidents, are within 
 the jurisdiction of the Appellate Court saving and excepting 
 always cases where the validity of a statute, Federal or State, 
 is involved, and cases where some other controlling element 
 carries it to the Supreme Court. 1 Upon a like principle it must 
 be held that all other cases wherein an appeal lies, with all 
 their incidents, are within the jurisdiction of the old tribunal. 
 The decisions that have been announced give full recognition 
 to the doctrine that the incidents go where the principal goes. 2 
 
 § 36. Incidents of a Class go with it — The rule that the incidents 
 of a class of cases follow the class is founded on principle and is 
 required to prevent interminable confusion. The foundation 
 doctrine is that the grant of a principal right or power carries all 
 the necessary incidents, and this doctrine runs through all juris- 
 prudence. 3 If any other rule than that stated be adopted confu- 
 sion that can neither be removed nor cleared away will result, 
 for without such a rule cases would necessarily be dissected into 
 parts and distributed piecemeal. The only mode in which this 
 evil can be prevented is by a strict adherence to the rule that 
 all the incidents go with the class. The only inconvenience or 
 confusion that can arise from an adherence to this rule is that 
 growing out of the difficulty of determining what is the principal 
 and what the incident, but this difficulty is infinitely less serious 
 than the perplexing difficulties which would certainly result from 
 an attempt to sever a class of cases into fragmentary parts. 
 
 37. Equity Cases — The rule that the incidents go with the 
 
 1 Duckworth v. Mosier( Nov. 5, 1S91). 3 Warren :\ Henly, 31 la. 31 : McNam- 
 
 Post, § 40, and authorities col- ara v. Estes, 22 la. 246; New Haven v. 
 
 lected in note. Whitney, 36 Conn. 373; O'Learv v. 
 
 'Baker v. Groves, 126 1ml. 593; Sloo,7 La. Ann. 25; Smith v. Newbern, 
 
 Evansvjlle, etc., Co. v. Swift, 128 Ind. 70 N. C. 14, S. C. 16 Am. R.766; Cook 
 
 Parker et al.v. Indianapolis Nat. County v. McCrea, 93 111. 236; Smith 
 
 Hank. 126 Ind. 595; Harris t'. Howe f. City of Madison, 7 Ind. 86; Cum- 
 
 , 27 N. E. R. 561; Courtney v. ings v. Mayor, 11 Paige, 596. 
 Courtney < )ct. 10, '91 ).
 
 THE SUPREME COURT. ;;i 
 
 principal casts all cases where purely equity jurisdiction is in- 
 voked to the Supreme Court, 1 but it by no means carries there 
 all cases in which equitable principles are applied. 2 Even jus- 
 tices of the peace should be guided by equitable principles (and 
 theoretically, at least, are so guided), and yet they can not 
 exercise equity jurisdiction. 3 It is, therefore, not merely where 
 equitable principles are applied that cases fall to the Supreme 
 Court, but it is where equity jurisdiction is invoked or equitable 
 relief is awarded. The character of the jurisdiction, and not 
 the rules of decision, must control. All cases where strictly 
 equity jurisdiction is called into exercise and equitable relief 
 must be awarded, go to the Supreme Court, since there the 
 original jurisdiction resided and no cases of purely and exclu- 
 sively equitable cognizance are taken from that tribunal. Within 
 this general rule fall suits for injunction, suits to enforce the 
 specific performance of contracts, suits for rescission, suits to 
 secure the construction of wills, 4 suits to foreclose legal and 
 equitable liens on real property, and many other cases of purely 
 equitable cognizance. In short, where purely equity jurisdic- 
 tion is exercised or invoked the case does not leave its original 
 place in appellate jurisdiction. 
 
 § 38. What are considered Equity Cases — A test by which to 
 determine the question of jurisdiction is supplied by the maxim 
 that "Equity acts specifically, and not by way of compensa- 
 tion." Where a specific decree is required then, as a general 
 rule, jurisdiction is in the Supreme Court. It may be that a 
 money judgment should be embodied in a decree and still the 
 jurisdiction remain in that court, inasmuch as where specific 
 relief is requisite there is in such cases something more than 
 recovery "of money only." Wherever a specific decree is 
 
 1 Ex parte Sweeney, 126 Ind. 583. equity power, but equitable principles 
 
 2 Baker v. Groves, 126 Irid. 593. may be administered by any court. 
 
 3 Albrecht v. C. C. Foster Lumber * Faught v. Faught et a/., 9S Ind. 470; 
 Co.. 26 N. E. R. 157, and cases cited. Stewart v. Stewart, 31 Ala. 207; Car- 
 There is a palpable difference between michaels. Browder, 3 How. (Miss. )2 52 . 
 equitable principles and equity jurisdic- Rosenbergs. Frank, 5S Cal. 3S7; People 
 tion. The equity jurisdiction can only v. Davidson, 30 Cal. 379. 
 
 be exercised bv a court invested with
 
 32 APPELLATE PROCEDURE. 
 
 ssary an additional element is annexed, and inseparably 
 annexed, to a money recovery, although a money recovery may 
 be also adjudged as part of the decree which awards the spe- 
 cific relief. 
 
 § 39. Foreclosure of Liens on Property — Decisions of our own 
 court fully illustrate and enforce the rule that the fact that a 
 money recovery is embodied in a decree does not control the 
 question of jurisdiction. The cases referred to are those which 
 declare that a suit to foreclose a mortgage lien is one of equity 
 cognizance, although there may also be a money recovery upon 
 a note secured by the mortgage. 1 The underlying principle is 
 that the equitable element is the controlling one, and, as such, 
 gives character to the case. 2 It is evident that the rule asserted 
 in the cases referred to is the correct one when it is brought to 
 mind how stubbornly the early English chancellors fought to 
 establish the authority of equity in foreclosure suits, and how 
 tirmlv the maxim quoted is rooted in our jurisprudence. To 
 sanction the division Which must necessarily be made if it be 
 granted that where there is a money recovery the case is not of 
 equitv jurisdiction, although there is a specific decree, would 
 lead to disastrous results, for, in almost ever)- case of the fore- 
 closure of a lien a sum is decreed to be due, and, although the 
 sum adjudged to be due is not always woven into a personal 
 judgment yet this is often done. 3 
 
 1 Carmichael v. Adams, 91 Ind. 526; 211; Souder's Appeal, 57 Pa. St. 498; 
 
 Brighton :•. White, 12S [nd. 320; McGown v. Remington, 12 Pa. St. 56; 
 
 Rogers :'. Union Central Ins. Co., in Henderson v. Dickey, 50 Mo. 161; 
 
 [43; Kedy v. Kramer, Ind. App. Phelan v. Boy Ian, 25 Wis. 679, 1 Pom. 
 
 Ct., 28 N. E. Rep. ii2z. The doctrine Eq. Jur., Sec. 231; Kimble v. Seal, 92 
 
 applies tn .1 suit to foreclose a chattel Ind. 276. 
 
 mortgage. Brown v. Russell & Co., 105 8 The principle that jurisdiction for 
 
 Ind. |'i. This principle applies to suits one purpose is jurisdiction for all pur- 
 
 Ide fraudulent conveyances, poses would be violated by dissecting a 
 
 Fields ". Holzman, 93 Ind. 205; Israel case into parts and giving one court 
 
 son, 93 Ind. 543. See, generally, jurisdiction over one element and an- 
 
 Lake Erie, etc., Co. v. Griffin, 92 Ind. other court jurisdiction over another. 
 
 ,7 I ake V. Lake, 99 [nd. 339. There must be one dominating element, 
 
 'Armstrong v. Gilchrist, 2 Johns which, " like Aaron's serpent, rules all 
 
 . \z\\ Hepburn v. Dunlop, 1 the rest." 
 
 Wheat, i-'j: Oelrichs v. Spain, [5 Wal.
 
 THE SUPREME COURT. 33 
 
 § 40. Title to Land, Cases Involving — All cases concerning the 
 title to real estate except cases arising between landlord and 
 tenant are within the jurisdiction of the Supreme Court. This 
 is true whether the case is one of legal or equitable cognizance, 
 for no authority over questions affecting the title to real property 
 is conferred upon the Appellate Court, and the jurisdiction re- 
 mains where the great body of appellate jurisdiction is vested. 
 It is, indeed, possible that in cases where it is the right of 
 parties to put the title in issue, and they do appropriately so put 
 it in issue that it must be decided, the jurisdiction is in the Su- 
 preme Court, although the action was originally between land- 
 lord and tenant. This conclusion seems warranted by the 
 words of the act creating the Appellate Court, for they confine 
 the jurisdiction of that court to cases where the relation of land- 
 lord and tenant exists, and where the relief sought is the pos- 
 session of the "leased premises." 1 If a title destroying that 
 relation is so asserted as to require an adjudication it is difficult 
 to conceive why the case is not within the jurisdiction of the 
 tribunal invested with authority over all questions of title. It 
 can, however, seldom happen that a question of title can be put 
 in issue since the familiar rule that a tenant can not deny the 
 title of his landlord is of such wide sweep, that in the great 
 majority of cases where the relation of landlord and tenant ex- 
 
 1 Duckworths. Mosier (Nov. 4, 1S91). under an appellate system similar in 
 
 Here, again, the principle that what is many respects to ours. Snell v. Snell, 
 
 not taken from the Supreme Court 123 111. 403; Frank v. King, 121 111. 
 
 there remains, is of controlling im- 250; Brace v. Black, 125 111. 33; Rice 
 
 portance. What is not excluded from v. Hall, 21 111. App. Ct. 28S; Lehman 
 
 the jurisdiction of that court is there v. Rothbarth, in 111. 194; Commis- 
 
 still. The form of the action or suit in sioners v. Kelsey, 120 111. 4S3; Kilgour 
 
 which the title to real estate is involved -'.Drain Commissioners, 111 111. 34S; 
 
 is not of controlling importance. If Moyer v. Swygart, 21 111. App. Ct. 497. 
 
 title to land is rightfully put in issue so Gage v. Scales, 100 111. 218; Chicago, 
 
 that the final decision must take from etc., Co. v. Watson, 105 111. 217. The 
 
 one party the land and give it to an- cases to which we have referred present 
 
 other, the ultimate appellate jurisdiction illustrations of many forms in which 
 
 is in the Supreme Court. This is the the question has arisen, and they unite 
 
 effect of the decisions in Duckworth in declaring the rule substantially as we 
 
 v. Mosier (Nov. 4, 1S91), and Evans- have stated it. See, post, §§ 51, 52, 
 
 ville, etc., Co. v. Swift, 128 Ind. 341. Chapter IV. 
 The doctrine is declared and enforced 
 
 3
 
 34 APPELLATE PROCEDURE. 
 
 ists, no question of title can be made. But there ma)-, we sup- 
 pose, be rare cases where, although the action was originally 
 commenced by one claiming as landlord, the question of title 
 can be put in issue as fully and directly as in any other class 
 of cases, as, for instance, where it is clearly and properly shown 
 that the landlord's title has been lost since the execution of the 
 lease, and the tenant holds under another lessor. 1 Where the 
 title can be put in issue and is actually and appropriately put in 
 issue, it would seem to be the dominating question, completely 
 overshadowing the question of the right of the lessor, as against 
 the lessee, to the possession of the demised premises. 2 
 
 §41. Prosecutions for Felony — Habeas Corpus — It is hardly nec- 
 essary to say that all prosecutions for misdemeanors, no matter 
 where they originate, are within the jurisdiction of the Appel- 
 late Court, except, of course, where the validity of a statute is 
 involved, and hence they are excluded from the jurisdiction of 
 the older tribunal. The vesting of the new court with juris- 
 diction in cases of misdemeanor leaves all prosecutions for 
 felonv within the jurisdiction of the Supreme Court. It would 
 seem that all habeas corpus proceedings, although the arrest 
 may grow out of a prosecution for a misdemeanor, must be 
 within the jurisdiction of that court, since jurisdiction of such 
 cases is not taken from it. 
 
 1 Tobinv. Young, 124 Ind. 507; Sims Bridwell, 15 Ind. 211; O'Connell v. 
 
 Hv. Cooper, 106 Ind. S7; Willison v. Gillespie, 17 Ind. 459; Burgett v. Both- 
 
 Watkins, 3 Pet. 43; Jackson v. Wheeler, well, 86 Ind. 149. Some of the expres- 
 
 6 Johns. 272. sions contained in the cases cited seem 
 
 - Kinney v. Doe, S Blackf. 350; Kel- to conflict with the doctrine of the well 
 
 luiu v. Berkshire, etc., Co., 101 Ind. 455; considered ease of Judy V. Citizen, 101 
 
 Delaney v. Fox, 2 C. B. N. S. 76S; El- Ind. 18, and so far as they do so they 
 
 liotl v. Smith, 23 Pa. St. 131; Weich- are probably erroneous. The doctrine 
 
 selbaum v. Curlett, 20 Kan. 709; Sharpe is that title is not in issue, for even an 
 
 - Kelley, 5 Denio, 431; Whiting v. owner can not resort to force. Archey 
 
 Edmunds, 94 N. Y. 309; Fuller v. v. Knight, 61 Ind. 311, 313; People v. 
 
 Sweet, 30 Mich. 237. Where the title King, 2 Caines, 98; People v. Leonard, 
 
 to land is properly put in issue the 11 Johns. 504; Schroeder's McDonald's 
 
 justice of the . • es to have au- Treatise, 30, 4S5. To oust the juris- 
 
 thority to do anything more than certify diction of the justice it must appear 
 
 the case to the circuit court. Kiphart that the title is actually in issue. Mel- 
 
 Brennemen, 25 Ind. 152; Short v. loh v. DeMott, 79 Ind. 502.
 
 THE SUPREME COURT. 35 
 
 § 42. Actions to Recover Statutory Penalties— Where lies the 
 
 jurisdiction in quasi criminal cases, that is, in actions to re- 
 cover statutory penalties, is a question of some difficulty. We 
 venture, however, to suggest that where the amount in contro- 
 versy does not exceed one thousand dollars, the jurisdiction is 
 in the Appellate Court. The reason which leads us to this con- 
 clusion is that the ultimate relief obtainable is the recovery of 
 money only, and the remedy is a civil action. 1 Where, how- 
 ever, the validity of a statute is involved, the jurisdiction is in 
 the Supreme Court. 
 
 § 43. Municipal Ordinances — There is an anomalous class of 
 cases which presents a special difficulty. The class to which 
 we refer is that of prosecutions to recover penalties for the vio- 
 lation of municipal ordinances. It seems, however, that where 
 the validity of the ordinance is in issue the jurisdiction remains 
 in the Supreme Court, but where the simple question is whether 
 the facts show a violation of the ordinance the jurisdiction is in 
 the Appellate Court. 2 The enactment of a municipal ordinance 
 is the exercise of a local legislative power and a municipal 
 ordinance is, in effect, a local statute, 3 so that in cases where its 
 validity is challenged the question is one of power, 4 hence it is 
 reasonable to conclude that such a case, that is, a case where 
 the question is purely one of power, is for the Supreme Court. 
 Questions affecting the mere form observed or disregarded in 
 enacting the ordinance, as, for instance, whether it was regu- 
 larly recorded, will not make the case one for the Supreme 
 Court. 5 Where no question of power is involved, the case is for 
 
 1 Durham v. State, 117 Ind.477; The State v. Lee, 29 Minn. 445, S.C. 4 C rim. 
 Western Union Tel. Co. v. Scircle, 103 Law Mag. 79, Si. 
 
 Ind. 227; United States v. Colt, Peters * If any other rule be adopted, it will 
 
 C. C. R. 145; Washington v. Eaton, 4 defeat the provision of the Appellate 
 
 Cranch C. C. 352. Court act, which excludes questions of 
 
 2 City of Hammond v. The New the validity of a statute from the juris- 
 York, etc., R R. Co., 126 Ind. 597. diction of the newly created tribui 
 
 3 Town of Elwood v. The Citizens', and it would, also, contravene the pr::i- 
 etc, Co., 114 Ind. 332; The Pennsyl- ciple that jurisdiction not taken from 
 vania Co. v. Stegemeier, 11S Ind. 305; the older tribunal still remains. 
 Blanchard v. Bissell, 11 Ohio St. 96; 5 City of Hammond v. New York, 
 
 etc., Co., 126 Ind. 597.
 
 36 APPELLATE PROCEDURE. 
 
 the Appellate Court inasmuch as the action is, in its essential 
 features, a civil action to enforce a statutory penalty, 1 and the 
 question whether the ordinance was, or was not, regularly 
 passed is merely an incidental one, as is the question whether 
 the evidence shows a violation of the ordinance. Under the 
 rule heretofore stated, these incidental questions travel with the 
 principal ones ; where the latter go, they go. 
 
 § 44. Where the Principal Appellate Jurisdiction is Vested — It is 
 
 evident, without going further into details, that the great body 
 of appellate jurisdiction still remains in the Supreme Court. 
 Among the classes of cases not heretofore enumerated may be 
 named, information in the nature of quo zvarranto, writs of pro- 
 hibition, contest of elections, contests of wills, proceedings in 
 partition, suits to quiet title, actions for mandate, and many 
 other suits and actions. It may, indeed, be said, although at the 
 expense of repetition, that all classes of actions and suits not 
 within the jurisdiction of the Appellate Court are within the 
 jurisdiction of the Supreme Court, provided, of course, that the 
 action or suit is one wherein an appeal will lie. 
 
 15. Inherent Powers — It is to be understood that the juris- 
 diction of the Supreme Court, as well as that of the Appellate 
 Court, is essentially appellate and not original. 2 Under the 
 general power which all courts of their rank possess they may 
 issue writs of mandate or of injunction in aid of their appellate 
 jurisdiction. They may determine in the first instance, their 
 own powers and duties, for it is clear that no inferior tribunal 
 can determine for them what their powers and duties are. 3 They 
 may protect their own records and prohibit interference with 
 their legitimate powers and duties. 4 Where the powers and 
 
 1 Bogart v. City of New Albany, i ville v. Gagle, 73 Ind. 117; Harden- 
 ing. 38; City of Indianapolis V. Fair- brook v. Town of Ligonier, 95 Ind. 70. 
 child, 1 [nd. 315; Levy v. State, 6 Ind. 2 Kesler v. Kesler, 39 Ind. 153. 
 281; City of Gosben v. Croxton, 34 3 State v. Noble, 118 Ind. 350. 
 Ind. 239; City of Greensburgh v. * Ex parte Griffith, 11S Ind. 83. 
 Corwin, 5S Ind. 518; Town of Brook-
 
 THE SUPREME COURT. 
 
 duties are prescribed by the constitution the legislature is power- 
 less to add to or detract from them. 1 In awarding writs of man- 
 date, or of prohibition, or of injunction, appellate courts do not 
 exercise original jurisdiction, but they exercise authority vested 
 in them as courts and because the authority is essential to their 
 existence or to the exercise of functions as courts of justice. 
 
 § 46. Opinions — Constitutional Requirements — The constitution 
 requires that the Supreme Court shall " give a statement in 
 writing of each question arising in the record of such case and 
 the decision of the court thereon." 2 This provision has received 
 considerable attention and given rise to much diversity of opin- 
 ion. 3 In one of the earlier cases it was intimated that it was 
 merely directory, 4 but this is not consistent with the settled rule 
 governing the subject of constitutional construction, inasmuch 
 as it completely nullifies the force of clear and explicit words 
 where there is neither contradiction nor confusion. But the 
 construction placed upon the provision by the later cases does 
 not follow the earlier case in the particular indicated. The 
 provision does not, how r ever, require the court to decide every 
 question discussed by counsel, nor, indeed, every question that 
 may be found in the record since the record may contain ques- 
 tions so unimportant as to be entirely destitute of influence. It 
 requires a decision upon every question essential to a final dis- 
 position of the case before the court, and upon no others. It 
 requires, also, a statement in writing upon each question de- 
 cided, but it does not require a statement of a question not de- 
 cided. A decision of questions essential to a complete disposi- 
 tion of the particular case before the court is all that is required, 
 and is, indeed, all that can with propriety be made, since to 
 
 1 Vaughn v. Harp, 49 Ark. 160; In re Hand v. Taylor, 4 Ind. 409; Rice v. 
 Janitor, 35 Wis. 410; Commissioners v. State, 7 Ind. 332; Ferguson v. Hani- 
 Hall, 7 Watts. 290. son, 7 Ind. 610; Clark v. Trovinger, 8 
 
 * Article 7, § 5. Ind. 334; Boggs v. State, S Ind. 463. 
 
 3 Henry v. State Bank, 3 Ind. 216; 4 Willets v. Ridgway, 9 Ind. 367.
 
 38 
 
 APPELLATE PROCEDURE, 
 
 ile other questions would often be to volunteer a judgment 
 without excuse. 1 
 
 1 Lake Shore, etc., R. Co. v. Cincin- 
 nati, etc., Co., i in Ind. 57S, 590. In 
 Trajser v. Trustees of Indiana Asbury 
 University, 39 Ind. 556, it was said: 
 "Three things must concur before a 
 question, within the meaning of the 
 •itution, arises in the record: First, 
 the question must be fully and clearly 
 1 in the transcript; second, there 
 must be an assignment of error cover- 
 ing the point: third, it must be a ques- 
 tion, the decision of which is necessary 
 to the final determination of the cause." 
 
 It i- proper to say of the case from which 
 we have quoted that in one particular it 
 asserts an erroneous rule and that is in 
 asserting that the court is bound to de- 
 cide a point not made in the brief of 
 counsel. The court is not bound to 
 hunt for points, nor would it be fair to 
 adverse counsel to do so, for points 
 ought to be made so that opposing 
 counsel may have an opportunity to 
 meet them. It is fair to assume that 
 counsel will make and argue all the 
 material points that arise in the case.
 
 CHAPTER IV. 
 
 THE APPELLATE COURT. 
 
 ^47. Jurisdictional clause of the act §61. 
 creating the Appellate Court. 
 
 48. Entire case goes to one court. 62. 
 
 49. Appellate Court has no jurisdic- 
 
 tion of constitutional questions. 63. 
 
 50. No definite system of classification 
 
 adopted. 64. 
 
 51. Actions originating before a jus- 
 
 tice of the peace. 65. 
 
 52. Actions involving title to real es- 
 
 tate. 66. 
 
 53. Amount in controversy before 
 
 justice of the peace determines 67. 
 jurisdiction. 
 
 54. Amount in controversy in trial 68. 
 
 court — General rule. 
 
 55. Amount — Exceptional cases. 69. 
 
 56. Jurisdiction as dependent upon 70. 
 
 amount. 
 
 57. Money recoveries only. 71. 
 
 58. Effect of the limiting words of the 72. 
 
 statute. 73. 
 
 59. Determination of the amount in 74. 
 
 controversy. 
 
 60. Effect of judgment in the trial 
 
 court upon the question of the 
 amount in controversy. 
 
 § 47. Jurisdictional clause of the act creating the Appellate Court 
 
 — The act creating the Appellate Court distributes to that court 
 part of the appellate jurisdiction of the State and designates the 
 classes of cases over which it is given authority. 1 The express 
 designation and enumeration of the classes over which its juris- 
 diction is extended leaves all others within the jurisdiction of 
 the Supreme Court. In addition to the reasons given in the 
 
 1 Act of February 28, 1S91. Acts of 1891, p. 39. 
 
 (39) 
 
 Interest and costs which acc.ue 
 subsequent to the appeal. 
 
 Remittitur — Effect on question of 
 jurisdiction. 
 
 Counter-claim as affecting juris- 
 diction. 
 
 Counter-claim — Change of the 
 character of case by. 
 
 Actions for the recovery of per- 
 sonal property. 
 
 Value of property in controversy 
 not material. 
 
 Exceptional cases involving title 
 to personal property. 
 
 Actions between landlord and 
 tenant. 
 
 Rule where title is put in issue. 
 
 Decedents' estates — Claims 
 against. 
 
 Rules of practice. 
 
 Supreme Court decisions control. 
 
 Transfer of cases. 
 
 Disqualification of one judge — 
 Jurisdiction not ousted.
 
 40 APPELLATE PROCEDURE. 
 
 preceding chapter for the conclusion, that the jurisdiction not 
 distributed to the new tribunal remains in the old, may be as- 
 signed this reason : the express mention of one thing implies 
 the exclusion of others. This familiar rule applies to constitu- 
 tions, 1 to statutes and to contracts, and hence must apply to the 
 ' act creating the Appellate Court. 
 
 § 48. Entire case goes to one Court — The principle, to which 
 we have often referred,- forbidding the dissection of a case into 
 parts, requires that a case should go bodily into one or the 
 other of the appellate tribunals of the State. 3 Plainly enough 
 all the incidents go where the issue which gives character to 
 the case indicates that the case belongs, so that if the main 
 features of a case impress upon it a character such as makes it 
 a member of one of the classes over which the Appellate Court 
 is given authority the incidents annexed do not affect the ques- 
 tion of jurisdiction. The question as to where jurisdiction lies, 
 is. it is safe to say, to be solved by ascertaining what element 
 or factor so predominates as to fix the nature of the case. In 
 enumerating and discussing, as we shall presently do, the 
 classes of cases which go to the Appellate Court we desire to 
 be understood as meaning that the classes named carry with 
 them all their usual and necessary incidents. 
 
 § 49. Appellate Court has no Jurisdiction of Constitutional Ques- 
 tions — It is true that the Appellate Court can not entertain ju- 
 risdiction of constitutional questions, but it may so far assume 
 control of a case presenting such questions as to certify it to the 
 Supreme Court. 4 An error in selecting the appellate tribunal 
 
 1 /// n Courts of Lancaster, 4 Pa. L. one of the parties — a county — the case 
 
 Jr. Rep. 315; Kingf. Hopkins, 57 N. II. could not be divided but must be cer- 
 
 334; Turner v. Althaus, 6 Neb. 54. tified to the Supreme Court. 
 
 3 Wi- have considered the doctrine * A >ite, §§ 32,33; State v. Armstrong, 
 
 thai the incidents go with the principal 35 Mo. App.49. See, generally, Arnold 
 
 in another place. Ante, §§ 36, 40. v. Hawkins, 27 Mo. App. 476. The 
 
 5 This general principle is illustrated Appellate Court can not entertain ju- 
 
 hv the ease of Freeman v. St. Louis risdiction, although the constitutional 
 
 Quarry Co., 30 Mo. App. 362. It was question involved may be settled by 
 
 there held that where the Appellate decisions of the higher court. State v. 
 
 Court eould not take jurisdiction over Kansas City Court (Mo.), 16 S. W. R.
 
 THE APPELLATE COURT. 41 
 
 is prevented from working disastrous results bv the provisions 
 of the act authorizing the transmission of cases from one appel- 
 late tribunal to the other, but, nevertheless, a lawyer who takes 
 pride in his work will be careful to make the proper choice. 
 As the path is yet untrodden, and as there is some room for 
 diversity of opinion — for the statutory provisions are not free 
 from ambiguity — it is probable that it will require time and ex- 
 perience to construct a uniform system of procedure. 
 
 § 50. No definite System of Classification Adopted — An analysis 
 of the statutory provision defining the jurisdiction of the Appel- 
 late Court will show that the General Assembly did not proceed 
 upon a definite and uniform system in designating the classes 
 of cases of which that court is given jurisdiction. 1 Some of the 
 classes are determined by the character of their members alone, 
 while one, at least, of the classes is complex, inasmuch as it 
 involves both character and amount. The first class — prose- 
 cutions for misdemeanors — is determined by the character of 
 its members, irrespective of the amount involved. 2 If, however, 
 the penalty prescribed makes the case one of felony, then its 
 character is such that jurisdiction falls to the Supreme Court. 
 It is, indeed, the penalty prescribed that gives character to the 
 case. The second class, composed of cases ' ' originating before 
 a justice of the peace where the amount in controversy exceeds 
 fiftv dollars exclusive of costs," is determined by the character 
 of the tribunal in which its members originate, and, so far at 
 least as concerns the question of jurisdiction between the new 
 and the old court, the amount in controversv is not important, 3 
 
 853. It is clear that the conclusion as- l § 1, Act of February 28, 1S91; Art- 
 ported in the case cited is correct, since 1S91, p. 39. 
 
 the higher court ought, on principle, have 2 It may be said once for all that each 
 
 authority over all such questions, and and every class is subject to the funda- 
 
 the entire subject should be within the mental and decisive exception created 
 
 jurisdiction of that tribunal, so that if by the principle that no constitutional 
 
 errors have been committed it can rec- question can be determined by the Ap- 
 
 tifv them. It should be there so as to pellate Court. 
 
 prevent conflict and confusion. It may, 3 The amount is important, as will 
 
 indeed, well be doubted whether final presently appear, in determining wheth- 
 
 jurisdiction over constitutional ques- er there is any right of appeal, 
 tions can be vested elsewhere than in 
 the highest court of the State.
 
 lj APPELLATE PROCEDURE. 
 
 but, as will hereafter be shown, there maybe cases which orig- 
 inate in a justice's court that must finally go to the Supreme 
 Court. 1 The third class, comprising " actions for the recovery 
 of money only where the amount in controversy does not ex- 
 ceed one thousand dollars,'' blends the elements of character 
 and amount, for if the character of the case is not such as to 
 make it one " for the recovery of money only " it is not within 
 the jurisdiction of the Appellate Court, no matter what may be 
 the amount in controversy, but an action may be for the recov- 
 ery of money only and still not be within the jurisdiction of that 
 court if the amount in controversy exceeds one thousand dol- 
 lars. The fourth class, " all cases for the recovery of specific 
 personal property," is designated in very comprehensive terms, 
 and is determined solely by the character of its members. The 
 fifth class, "actions between landlord and tenant for the recov- 
 ery of the possession of the leased premises," is founded upon 
 the principle of character. This is also true of the sixth class, 
 " all cases of appeals from orders allowing or disallowing claims 
 against decedents' estates." 
 
 § 51. Actions originating before a Justice of the Peace — The sec- 
 ond class of cases, the class composed of cases which originate 
 before justices of the peace, requires some consideration. It 
 may be said, at the outset, that comprehensive as is the lan- 
 guage employed in specifying the class, still, it must be true 
 that there are cases which originate before a justice of the peace 
 that must go from the circuit or superior court to the Supreme 
 Court. The most important cases which, although originating 
 before a justice of the peace, go to that court are those in which 
 the title to real estate is actually in issue. It must, of course, 
 be clear that the title is involved and that it is put in issue in 
 the proper method, but if title is actually involved and is appro- 
 priately put in issue, it must always be the controlling factor, 
 and, as such, invariably give character to the case. If the issue 
 of title does give character to a case and is paramount, then all 
 other things are mere incidents, and the case must go where the 
 principal carries it. 
 
 1 Sec ante, § 40. post, §51.
 
 THE APPELLATE COURT. );; 
 
 §52. Actions involving Title to real estate — It may be well 
 enough to further fortify our conclusion that the issue of title to 
 real estate is the principal element in every case where it is the 
 direct and controlling question, by illustrations and authorities, 
 although we have elsewhere given the question consideration. 1 
 The common law, as every one knows, regarded land with pe- 
 culiar favor and placed it in a much higher rank than personal 
 property. The method of conveying title was peculiar, and 
 land was free from judgment liens. But it is not necessary to 
 go beyond our own laws, for they give to land a high place and 
 they have always excluded questions of title from the jurisdiction 
 of subordinate tribunals. A forcible illustration is supplied by the 
 exclusion of questions of title from the jurisdiction of the com- 
 mon pleas court which once formed part of our judicial system. 2 
 But more striking is the illustration supplied by the statutes and 
 the decisions, which assert that where the title to land is prop- 
 erly put in issue in an action before a justice of the peace his 
 jurisdiction ceases and the case is transformed into one for the 
 circuit court. 3 There is in such instances a change of jurisdic- 
 tion because the new issue radically alters the character of the 
 case. The case, although commenced in a subordinate tribu- 
 nal, travels beyond its jurisdiction to a higher court, and, when 
 it gets there by the true road, it becomes a case within the ju- 
 risdiction of the higher court as effectually as if it had there 
 originated. If this be true it must also be true that the appeal, 
 when taken, is from the case within the jurisdiction of the higher 
 court and not from the subordinate statutory tribunal. The con- 
 clusion asserted by us, it may with propriety be further said, is 
 necessary to give harmony to our system of procedure and to pre- 
 
 1 Ante, (j 40. McCIure v. White. 9 Ind. 20S; Parker 
 
 2 Dixon v. Hill, S Ind. 147; City of v. Russell, 3 Blackf. 411; Bispham v. 
 Lamasco v. Brinkmeyer, 12 Ind. 349; Inskeep, 1 Coxe. 231. The title must, of 
 Clark v. Trovinger, S Ind. 334; Crom- course, be in issue in a case where it can 
 ■well v. Lowe, 14 Ind. 234. be put in issue, ami it musl be so in is- 
 
 3 R. S. 1SS1, § 1434; Bibbler v. Wal- sue that a decision upon it must be ren- 
 ker, 69 Ind. 362; Kiphart v. Brennemen, dered. Melloh v. Demott, 79 Ind.502; 
 25 Ind. 152; Short v. Bridwell, 15 Inch Burgett v. Bothwell, 86 Ind. 149. 
 
 2ii ; O'Connell v. Gillespie. 17 Ind. 459;
 
 j 1 APPELLATE PROCEDl RE. 
 
 vent the great subject of the ownership of land from being divided 
 up and distributed among different courts. The strong and clear 
 purpose of the courts and law -makers has always been to unify 
 and make certain the principles of real property law, as, to cite 
 one of many instances, is illustrated by the often expressed de- 
 termination of courts to adhere to a decision of doubtful sound- 
 ness because " it has become a rule of property." But, without 
 going further into the subject, we venture to say that the deeper 
 it is explored the stronger will be the evidence supporting our 
 conclusion, for an infinite variety of decisions may be collected 
 wherein the purpose to keep the rules of real property law uni- 
 form and firm by keeping jurisdiction of cases involving interests 
 and estates in land in one tribunal is clearlv manifested. 1 
 
 i 53. Amount in controversy before Justices of tbe Peace deter- 
 mines Jurisdiction — The amount in controversy in actions orig- 
 inating before a justice of the peace determines the question 
 whether there is any right of appeal, for if the amount, exclud- 
 ing costs, is less than fifty dollars no right of appeal exists. 2 As 
 the provision in the act of 1891 is substantially the same as that 
 contained in the statute regulating appeals to the Supreme 
 Court in cases originating before a justice of the peace, the con- 
 struction given that statute must be deemed the one which the 
 act of 1891 is to receive. The rule established by the decisions 
 is that at least lift)' dollars, exclusive of costs, must be actually 
 in controversy, so that the question is to be determined by as- 
 certaining what amount is actually involved. It is evident that 
 where there is a judgment for less than fifty dollars and the 
 plaintiff is content, there is, as a general rule, no right of ap- 
 
 1 Pratt v. Kendig. 12S 111. 293, S. C.21 410; Hughes v. Swope (Ky.). 1 S. W. 
 
 \. E. \\r\K \>)-\ Mover v. Swygart, 125 Rep. 394: Nichols v. Otto, 132 111. 91, 
 
 111. 2( 7 \". E. Rep. 450; Bice S. C. 23 X. E. Rep.411: Getman t/.lh- 
 
 - II. ill. [20 Hl.597, S.C. 12 N.E. Rep. gersoll, 117 N. Y. 75, S. C. 22 N. E. Rep. 
 
 < Oswald v. Wolf, 2; III. App. Co. 750; Pierce :. George, 30 Mo. App.650; 
 
 I..- MoyiH- v. Harding, 132 111. Moultrie v. Dixon, 26 So. Car. 296, S. 
 
 ; V E. Rep. |i'>. Stun/ v. C.2 S. E. Rep. 24. 
 
 Stun/, 131 [11. 309, S. C. 2} N. E. Rep. 2 A fife, §§47, ) s -
 
 THE APPELLATE COURT. 45 
 
 peal. 1 But to this general rule there are exceptions. 2 If the 
 defendant, by a plea of set-off or by a counter-claim, shows, by 
 the statement of material facts, and not merely by a formal de- 
 mand or prayer, that he is entitled to a judgment for fifty dol- 
 lars or more, then the right of appeal exists. 
 
 § 54. Amount in Controversy in the Trial Court — General rule— 
 
 The general rule is that the amount in controversy in the tri- 
 bunal where the case originated is, in cases where the amount 
 alone is determinative, the test by which the question of juris- 
 diction is to be determined. It is possible that there may be 
 exceptions to this general rule, as there are to most general rules, 
 but if there be exceptions they are so rare as to serve to prove 
 rather than destoy the general rule. Our decisions lay down 
 the general rule as we have stated it, and it has long prevailed. 3 
 
 § 55. Amount — Exceptional Cases — Elements may be added 
 which will change the operation of the general rule, for it may 
 happen that an added element will so completely transform the 
 character of the case as to leave the amount an incident only 
 and as such overshadowed by a principal issue. We have in 
 another place endeavored to show that where the question of 
 title is directly and legitimately put in issue it becomes the in- 
 fluential and determining element. Other cases may be con- 
 ceived in which the question of amount gives way before some 
 more important element. This statement finds support from 
 
 1 Ex parte Sweeney, 126 Ind. 583, 2 In the preceding clapter we have 
 
 S. C. 27 N. E. Rep. 127; Cincin- shown that where the validity of mu- 
 
 nati, etc., Co. v. McDade, m Ind. 23, nicipal ordinance is directly in issue 
 
 26; Winship v. Block, 96 Ind. 446; Pars- the jurisdiction is in the Supreme Court, 
 
 ley v. Eskew, 73 Ind. 558; Wagner v. Ante, §43; City of Hammond v. New 
 
 Kastner, 79 Ind. 162; Baltimore, etc., York, etc., R. R. Co., 126 Ind. 597. 
 
 Co. v. Johnson, 83 Ind. 57; Galbreath s Overton v. Overton, 17 Ind. 226; 
 
 f. Trump, S3 Ind. 381; Breidert v. Krue- Bogart v. City of New Albany. 1 Ind. 
 
 ger, 76 Ind. 55; Sprinkle V. Toney, 73 3S; Tripp v. Elliott, 5 Blackf. 16S; Reed 
 
 Ind. 592; Halleck v. Weller, 72 Ind. 342; v. Sering, 7 Blackf. 135. There may 
 
 Dailey v. City of Indianapolis, 53 Ind. however, be cases where the amount 
 
 4S3; Morn it v. Wilson, 44 Ind. 476; alone is not determinative, and where 
 
 Bowers v. Town of Elwood, 45 Ind. this is true the reason of the rule fails 
 
 234; Donovan v. Town of Huntington, and so, also, does the rule. 
 24 Ind. 321; Jones v. Yetman,6 Ind. 46.
 
 |,; APPELLATE PROCEDURE. 
 
 the case wherein it was held that, although the amount in con- 
 troversy was not sufficient to give the Supreme Court jurisdic- 
 tion, yet, as there was an order abating a nuisance, an appeal 
 would lie. 1 
 
 § 56. Jurisdiction as dependent upon Amount — As appears from 
 the analysis given at another place, of the section of the act 
 distributing jurisdiction to the Appellate Court, the amount in 
 controversy is one of the important elements which determines 
 the question of jurisdiction in the third class of cases. In as- 
 certaining the amount in controversy, as has already been sug- 
 gested, regard is to be had to the material facts alleged in the 
 pleadings, or apparent of record, for the amount actually in- 
 volved can not be justly said to be that named in the formal 
 demand or prayer for judgment. If it were granted that the 
 question of jurisdiction may be determined by a naked formal 
 demand, or a bare general allegation, it would result in per- 
 mitting parties to settle the question of jurisdiction by a formal 
 allegation or demand, and thus involve a violation of the estab- 
 lished rule that parties can not create jurisdiction of the subject. 
 It is, therefore, correctly held that a naked allegation or de- 
 mand is not the basis upon which jurisdiction is to be asserted. 2 
 The substanial facts appearing in the pleadings, or record, are 
 of controlling influence, and it is from them that the question 
 
 1 Vonderweit v. Town of Centerville, Gas Light Co. (La.), 7 So. Rep. 538. 
 
 i5lnd-447. The doctrine of this case See, generally, McCoy v. McCoy, 33 
 
 is re-asserted in Hall v. Spurgeon, 23 W. Va. 60, S. C. 10 S. E. Rep. 19; 
 
 Incl. 73, where the court gives as an ex- Callan v. Bransford, 10 S. E. Rep. 317; 
 
 ample of cases wherein the amount in Quimby v. Hopping, 52 N. J. L. 117, 
 
 controversy is not determinative of the S. C. 19 Atl. Rep. 123; Clark v . Gresh- 
 
 question of jurisdiction, the following: am (Miss.), 7 So. Rep. 224; State v. 
 
 " Where the defendant claims a set-off St. Louis Court of Appeals, 87 Mo. 569; 
 
 which is disallowed, or there is a judg- Pochelu v. Catonnet, 40 La. Ann. 327, 
 
 ment of forfeiture" in addition to the S. C. 4 So. Rep. 74. Where the contro- 
 
 money judgment." versy is by admissions in the pleadings 
 
 3 Painter z/.Guirl, 71 Ind. 240; Sprin- reduced below the sum of one thousand 
 
 kle ;■. Tiiiht, 73 Ind. 592; Cincinnati, dollars jurisdiction is in the Appellate 
 
 etc., Co. v. McDade, in Ind. 26; Ex Court. Knapp v. Deyo, 108 N. Y. 518, 
 
 part, Sweeney, 126 Ind. 583, S. C. 27 S. C. 15 N. E. Rep. 540; Campbell v. 
 
 N.E.Rep.127; Lee v. Watson, 1 Wall. Mandeville, no N. Y. 628, S. C. 17 N. 
 
 337; Hannony Club v. New Orleans E. Rep. S66.
 
 THE APPELLATE COURT. 47 
 
 is to be determined. If it appears from such facts that the 
 amount in controversy exceeds one thousand dollars the juris- 
 diction is in the Supreme Court, except, of course, where the 
 law expressly vests the Appellate Court with jurisdiction irre- 
 spective of the amount involved. 
 
 § 57. Money Recoveries only — Where the action is one for the 
 recovery of money only, and the controversy is over a sum not 
 exceeding one thousand dollars, the appellate jurisdiction is in 
 the Appellate Court, no matter what may be the character of 
 the action. The test is whether the principal element gives the 
 case the character of an action for the recovery of money only, 
 for if it is an action for the recovery of money only, and the 
 amount involved does not exceed one thousand dollars, then, 
 the case, with all its necessary incidents, falls to the Appellate 
 Court, whatever may be its class. Whether it is an action ex 
 contractu, or an action ex delicto, the case goes to that tribunal, 
 if only a money recovery is obtainable. The nature of the 
 action is not of controlling influence unless it is such as to make 
 it one where the principal element renders the money recovery 
 a mere incident. This general doctrine was asserted by the 
 decisions made upon the statute defining the jurisdiction of the 
 old common pleas court, 1 and the doctrine is the only one de- 
 fensible on principle. If any other doctrine were asserted, 
 perplexity and confusion would inevitably result, producing a 
 conflict that no court could control. 
 
 § 58. Effect of the limiting words of the Statute — The limitation 
 created by the words " for the recovery of money only," is an 
 important one, as appears from what has been said in another 
 place. 2 It is unnecessary to here enlarge upon the question 
 presented by the limiting words referred to, for it seems very 
 clear, from what has been elsewhere shown, that the addition 
 of a principal element may make a case one in which the money 
 recovery is a mere incident. Wherever the money recovery is 
 an incident to some principal issue, and the principal issue im- 
 
 1 McCole :•. State, 10 Ind. 50; Hawk- 2 Ante, §§ 35, 36. 
 ins v. State, 24 Ind. 2SS.
 
 48 APPELLATE PROCEDURE. 
 
 presses upon the case such a character as to bring it within the 
 jurisdiction of the Supreme Court, there it must go, but where 
 a money recovery is the principal element, the case falls to the 
 new tribunal. 
 
 i 59. Determination of the Amount in Controversy — It is not 
 possible to lay down a rule which will in all cases determine 
 the amount in controversy. It is easy enough to declare that 
 all cases for the recovery of money only where the amount in 
 controversy does not exceed one thousand dollars arc within 
 the jurisdiction of the Appellate Court, but to say what the 
 amount in controversy actually is will be found, in some in- 
 stances, to be very difficult. One class of cases, that of actions 
 for personal injuries, will supply instances of special difficulty. 
 There can, of course, be no difficulty in such cases where the 
 judgment exceeds one thousand dollars, or in cases where it 
 is for a less amount, and the plaintiff is satisfied, but there may 
 be cases where it is less than that sum, and the plaintiff claims 
 more, in which very serious difficulty will be encountered. So 
 there will be difficultv in cases of that class where a demurrer is 
 sustained to a complaint. As much as can now be safely said, is 
 that if there is fair reason for debate as to the amount as appears 
 from an examination of the material facts, jurisdiction is ordinar- 
 ily in the Supreme Court. The fundamental principle that all ju- 
 risdiction not distributed to the Appellate Court remains in that 
 tribunal, requires that where there is fair doubt as to where the 
 jurisdiction lies, the doubt should be resolved in favor of the 
 court having authority over all cases not placed elsewhere by 
 statute. 1 
 
 i GO. Effect of Judgment in the Trial Court upon the question of 
 the Amount in Controversy — It is not every case that can be as- 
 signed to the proper tribunal by a simple inspection of the ver- 
 dict or judgment, for there may be cases where a plaintiff 
 recovers less than one thousand dollars when a much greater 
 sum should be awarded him. It is probably true that the judg- 
 ment is -prima fade evidence of the amount in dispute, but it can 
 
 1 Ex parte Sweeney, \zG Ind. 583.
 
 Till". APPELLATE COURT. 49 
 
 not always be conclusive. Thus a plaintiff may sue upon a 
 contract entitling him to more than one thousand dollars, re- 
 cover much less, and unsuccessfully move for a new trial on 
 account of error in assessing the amount of his recovery. In 
 such a case it seems clear that if the substantial allegations or 
 facts disclose a fair dispute as to the amount claimed in excess 
 of the judgment, there is a controversy involving a sum in 
 excess of one thousand dollars. 1 Suppose, for example, that a 
 plaintiff should sue on a bond providing for the paj^ment of 
 three thousand dollars as liquidated damages, and that the law- 
 entitles him to recover the sum named as liquidated damages, 
 but the trial court should, under an erroneous view of the law, 
 deny him such damages and direct a verdict for him in the sum 
 of seven hundred dollars, does it not seem clear that he may 
 appeal to the Supreme Court? 2 Or, again, suppose it to be 
 shown by a special finding that a defendant is entitled on his 
 counterclaim to a judgment for five thousand dollars and that 
 he is only awarded one thousand dollars, would not the Supreme 
 Court have jurisdiction? Illustrative cases might easily be 
 multiplied, but these are sufficient, as we believe, to show that 
 where there is a fair question as to whether a party who un- 
 successfully claims judgment for more than one thousand dol- 
 lars is not entitled to a larger judgment, he may appeal to the 
 Supreme Court, although the verdict and judgment are in his 
 favor, but for a sum less than he has put in controversy by sub- 
 
 1 There is some confusion in the de- Wilson v. Daniel, for all that it decides 
 cisions of the Supreme Court of the is that the amount in controversy can 
 United States upon the general ques- not be determined by the claim. Wil- 
 tion. In Wilson v. Daniel, 3 Dall, 400; a son v. Daniels is, as it seems to us, 
 very broad doctrine was declared, and in rightly decided in so far as it holds, as 
 Spear v. Place, 11 How. (U. S.) 522, Ellsworth. C. J., expresses it, that, we 
 526, that case is cited with approval, are not to regard the verdict or judg- 
 But in Gordon v. Ogden, 3 Peters, 33, ment as the rule for ascertaining the 
 it was said that Wilson v. Daniel had value of the matter in dispute between 
 been departed from in practice, although the parties,'' although the doctrine 
 Marshall, C. J., said: "We should be ought, perhaps, to be qualified by add- 
 much inclined to adhere to Wilson v. ing that the verdict or judgment is not 
 Daniel had not a contrary practice since conclusive as to the amount in contro- 
 prevailed." The decision in Wise v. vers v. 
 
 Columbian Turnpike Co., 7 Cranch, 2 Barry v. Edmunds, 116 U. S. 550, 
 
 276, is not opposed to the doctrine of 560. 
 
 4
 
 50 APPELLATE PROCEDURE. 
 
 stantial allegations. It is, of course, implied in what has been 
 1 that the sum in controversy exceeds one thousand dollars. 
 
 §61. Interest and costs which accrue subsequent to the Appeal — 
 creneral rule is that the amount recovered in the court of 
 original jurisdiction governs. 1 We have already spoken of the 
 eptions to this general rule, and we shall here speak very 
 generally of its scope and effect. This rule requires that the 
 amount as established by the judgment, and not what is subse- 
 quently added to it in the form of such incidents as interest or 
 costs, shall alone be considered in determining whether the 
 amount involved gives jurisdiction. It is obvious that, under a 
 system like ours, where the questions arising on appeal are to 
 be determined by the record, the jurisdictional amount must be 
 ascertained from the record and not from extrinsic evidence. 
 The amount of the judgment as it is disclosed by the record, 
 irrespective of accrued interest, must, as a general rule deter- 
 mine the question of jurisdiction. 2 It has, indeed, been held 
 under the former statute regulating appeals to the Supreme 
 Court that interest which accrued prior to the judgment must 
 be excluded, but this decision is of doubtful soundness. 3 The 
 decision just mentioned can not, however, govern appeals un- 
 der the present statute for that does not exclude interest which 
 accrued prior to the judgment and is included in the amount 
 recovered. 4 
 
 * 'Overton v. Overton. 17 Ind. 220; Bruce v. Manchester Co., 117 U. S. 514; 
 
 irl v. The City of New Albany, 1 Knapp v. Banks. 2 How. 73. 
 
 Ind. 38; Tripp v. Elliott, 5 Blackf. 168; 3 Wagner v. Kastner, 79 Ind. 162. 
 
 Reed v. Sering, 7 Blackf. 135. A sum * Zeckendorf v. Johnson, 123 U. S. 
 
 paid after the commencement of the 617; The Patapsco, 12 Wall. 451; The 
 
 action can not, it isheld.be taken into Rio Grande. 19 Wall. 17S. Interest 
 
 consideration so as to swell the juris- may form an element in the amount of 
 
 dictional amount. Guirdy v. Garland recovery and when included in the judg- 
 
 !■•' . 6 So. Rep. 563. mi :ii i- certainly to be taken into con- 
 
 2 Ex parte Sweeney, 126 Ind. 5S3; sideration, or, more strictly speaking, 
 
 of United Stale- v. Daniel, 12 the appellate tribunal can not exclude 
 
 :: Walker :•. The United it. and thus diminish the amount re- 
 
 3, 1 Wall. [82; Elgin v. Mar- covered. The rule goes even farther. 
 
 shall, k/. U. S. 578; Western Union Littlefield v. Perry, 21 Wall. 205; Bates 
 
 Co. - I' U. S. 565; v. St. Johnsbury, etc., Co., 32 Fed. R. 
 
 Thompson v. Butler, 95 U. S. 694; 628. Under the rule that the judgment
 
 THE APPELLATE COURT. ;,] 
 
 § 62. Remittitur — Effect on question of Jurisdiction — It is held 
 by the Supreme Court of the United States that where a 
 remittitur is filed before judgment it will preclude an appeal if 
 it reduces the recovery below the prescribed amount, 1 but if 
 entered after judgment it will not preclude an appeal. 2 It is 
 obvious that a remittitur before judgment is effective, since a 
 finding or verdict is not an adjudication, but to become opera- 
 tive a finding or verdict must be followed by a judgment, and 
 even then it is, in strictness, only the judgment that constitutes 
 an adjudication. A valid remittitur, plainly enough, reduces 
 the amount in controversy, but to be effective it must precede 
 the acquisition of jurisdiction by the appellate tribunal. If it 
 were otherwise, jurisdiction might be defeated by the act of a 
 party performed for the purpose of defeating jurisdiction and 
 in cases where only a trivial sum is remitted. 
 
 § 63. Counter-claim as affecting Jurisdiction — A counter-claim or 
 cross-complaint may, it is obvious, state such facts as will make 
 an actual controversy for an amount exceeding one thousand 
 dollars, and if the amount in controversy does exceed that sum, 
 the cross-complainant may, and, indeed, must, appeal to the Su- 
 preme Court, if he appeals at all. 3 But if the case turns wholly 
 upon the cross-complaint or counter-claim and the cross-com- 
 plainant is content with the judgment for one thousand dollars or 
 less, the original plaintiff can not appeal, since, if the cross- 
 complainant is satisfied, no more than the amount for which judg- 
 ment was given is in controversy. There may, however, be a 
 case where a recovery by a counter-claimant will vest in the 
 original plaintiff a right of appeal to the Supreme Court, as, for 
 instance, where the facts pleaded show a right on the part of 
 the plaintiff to a recovery of more than one thousand dollars, 
 
 as entered, and not what subsequently l". S. j^j; First National Bank v. Red- 
 occurs, determines the jurisdictional ick, noU. S. 224. 
 
 amount, it is held that the tact that the 2 New York, etc., Co. v. Fifth Xa- 
 
 judgment may operate upon other cases tional Dank, 11S U. S. 60S. 
 
 is not of controlling inlluence. Elgin 3 Ex parts Sweeney, 126 Ind. 
 
 v. Marshall, 106 U. S. 578; Bruce v. Wysor v. Johnson, 1 Ind. App. Ct. 
 
 Manchester, etc., Co., 117 U. S. 514. Dushane v. Benedict, 1:0 U. 8.630; 
 
 1 "Thompson v. Butler, 95 U. S. 694; Ryan v. Bindley, 1 Wall. 66; Forster, 
 
 Alabama Gold, etc., Co. v. Nichols, 109 etc., Co. v Guggemos, z\ Mo. App. 444.
 
 APPELLATE PROCEDURE. 
 
 and his claim is not only defeated but a sum is awarded the ad- 
 verse part} upon a plea of set-off or upon a counter-claim. 
 
 § 6 I. Counter-claim — Change of character of Case by — A coun- 
 ter-claim may not only create a controversy changing the dis- 
 pute as to the amount, but it ma) 7 also plead such facts as will 
 radically change the nature of the case. While it is true that 
 where a counter-claim or cross-complaint is filed the case re- 
 mains in a general sense the same, yet it is also true that a 
 counter-claim may introduce ah issue into the case that will 
 overshadow and control all others. This principle is asserted 
 and enforced in the cases which adjudge that where a counter- 
 claim presents a question of title it becomes the paramount is- 
 sue and makes a case entitling a party to a new trial as of 
 right. 1 It is illustrated in the cases which hold that where a 
 suit is brought to revest title in a case where an owner is in- 
 duced by fraud to part with it, title is the principal issue. 2 In 
 whatever form the issue of title is made it is the determining 
 issue, 3 provided, of course, the issue is made by a party entitled 
 to make it, and in an appropriate method. The principle we 
 are considering finds full development and strong enforcement 
 in partition proceedings, for in a long line of cases it is ad- 
 judged that title may be put in issue in such proceedings by 
 the complaint or by a counter-claim, and when put in issue and 
 adjudicated the judgment is conclusive, although in cases where 
 no such issue is made a judgment in partition proceedings is 
 not conclusive upon the question of title. 4 
 
 1 Kreitline v. Franz, 106 Ind. 359; crs 7'. Beach, 115 Ind. 413; Dumont v. 
 
 Gullet -. Miller, 106 Ind. 75, 78; Ham- Dufore, 27 Ind. 2(>$; Farrar v. Clark, 
 
 man r. Mink, 99 Ind. 277: Physio- 97 Ind. 447. 
 
 Medical College v. Wilkinson, 89 Ind. * Watson v. Camper, 119 Ind. 60; 
 
 •- v. Baston, 89 Ind. 185. L'Hommidieu v. Cincinnati, etc., Co., 
 
 - Adams v.Wilson, 60 Ind. 560; War- 120 Ind. 435, 441; Woollen- v. Gray- 
 burton z\ Crouch, 108 Ind. 83. son, no Ind. 149; Spencer v. McGon- 
 
 : ' Bisel v. Tucker, 1:1 Ind. 249; Miller agle, 107 Ind. 410; Thorp v. Hanes, 107 
 
 ansville National Bank, 99 Ind. Ind. 324; Luntz v. Greve, 102 Ind. 
 
 272; Ilanmian v. Mink, 99 Ind. 279; 173. and eases cited. Miller r. Noble, 
 
 Moor v. Seaton, 31 Ind. 11; Benders. 86 Ind 527; McMahan v. Newcomer, 
 
 Sherwood, 21 Ind. 167; Hunter v.Chris- 82 Ind. 565, and authorities cited. It 
 
 tian. 70 Ind. 439. See, generally, Rog- will be found, as we have repeatedly
 
 THE APPELLATE COURT. 
 
 § 65. Actions for the recovery of Personal Property — Actions for 
 the recovery of" specific personal property," with their usual 
 incidents, are within the jurisdiction of the Appellate Court. 
 The language is so clear and comprehensive that there is no 
 need for construction. Under a former statute it was held that 
 the amount involved did not affect the question of jurisdiction, 1 
 and this doctrine must apply to the act creating the Appellate 
 Court. An action for the possession of specific personal 
 property is, in its essential and primary nature, a possessory 
 action, but it may, nevertheless, involve the question of owner- 
 ship. 2 It is, however, not material, so far as concerns the 
 question under immediate mention, whether the particular case 
 does or does not involve the question of title, for it is evident 
 ihat the legislature intended to place one great class of actions 
 under the authority of the new court. Even if there were 
 doubt, the true course would be to hold that the whole class was 
 intended to go to one tribunal rather than to so hold as to create 
 confusion by dividing the class and distributing its members. 
 The class, whatever may be the value of the specific personal 
 property in dispute, belongs, without division, to the Appellate 
 Court. Possibly some element may be added which will create 
 an exception, but it is, at all events, quite clear that the ex- 
 ceptions to the general rule will be very rare, if, indeed, there 
 can be any, in a case where the recovery of specific personal 
 property is sought. 
 
 § 66. Value of Property in controversy not material— The lan- 
 guage employed in designating the class of cases under im- 
 mediate consideration (the fourth class) is very broad and 
 comprehensive ; there is neither limitation nor exception. No 
 restriction is expressed or implied, for " all actions for the re- 
 covery of specific personal property" are declared to be within 
 
 said, that there is everywhere mani- l Hall v. Durham, 113 Ind. 327; Ex 
 
 fested a purpose to make the question parte Sweeney, 1:6 Ind. 5S3. See, gen- 
 
 of title the paramount one wherever it erallv, Entsminger v. Jackson. 73 Ind. 
 
 is appropriately and rightfully put in 144; Kramer v. Matthews, 68 Ind. 172; 
 
 issue. In this there is almost universal Pacey :•. Powell. 97 Ind. 371. 
 
 concurrence of opinion no matter from 'Payne v. June. 92 Ind. 252; Mc- 
 
 what side the question is approached. Faden :•. Fritz, no Ind. 1.
 
 54 ! A.TE PROCEDURE. 
 
 the jurisdiction of the Appellate Court. It is, therefore, im- 
 material what the value of the property in dispute may be, or 
 whether the question of ownership is, oris not, involved. Nor 
 is it matt-rial what the amount of damages may be, for irre- 
 spective of the element of damages the jurisdiction is in the 
 new tribunal if the action is for the recovery of specific personal 
 property. This is so for the reason that the paramount issue is 
 that of the right to the ownership or to the possession of the 
 specific personal property, and damages, whatever their amount, 
 constitute a mere incident of the principal issue. 1 
 
 §67. Exceptional cases involving title to Personal Property — The 
 
 fact that the title to personal property or the right to its posses- 
 sion may collaterally, or incidentally, be brought in controversy 
 will not determine the question of jurisdiction irrespective of the 
 amount in dispute between the parties. The language employed 
 con tines the fourth class to actions where the recovery of spe- 
 cific personal property is the dominating element. Cases of 
 trespass or trover, as well as other actions where the recovery 
 sought is money, and not specific personal property, are not 
 members of the fourth class. The members of the fourth class 
 are cases which are ordinarily classified as actions of replevin ; 
 and actions for damages, although title to personal property 
 may be collaterally or incidentally involved, are members of an 
 entirely different class. 2 
 
 § 68 Actions between Landlord and Tenant — The fifth class of 
 cases distributed to the Appellate Court is designated as 
 " actions between landlord and tenant for the recovery of the 
 
 1 Williams v. West, 2 Ohio St. 82, 86; erty as damages. Hill v. Haverstick, 
 
 White - . Van I louten, 51 Mo. 577: Ho- 17 Ind. 517; Chissom v. Lamcool. <> [nd. 
 
 henthal v. Watson, jS Mo. 360; Herze- 530, 533; Jones v. Dowle, 9 M. & W. 
 
 berg 60 Md. 1.26; Rodmans. [9; Sayward v. Warren, 27 Me. 453; 
 
 Nathan, 45 Mich. 607, 8 N. W. R. 562; Allen v. Crarv, 10 Wend. 349; Cary 
 
 Walls v. Johnson, 16 Ind. 374; Morgan v. Hotaling, 1 Hill, 311; Drak< v, 
 
 molds, 1 Mont. 103. Wakefield, n How. Pr. R. 106; Ward 
 
 1 A special difficulty may arise where v. Woodburne, 27 Barb. 346, 353; Van 
 
 the value of the property exceeds one Neste v. Conover, 5 How. Pr. R. (O. 
 
 thousand dollars, and it is nol delivered S.) 14S; Pugh v. Colloway, 10 Ohio St. 
 
 to the plaintiff. In such a case it seems 4SS; Cook v. Hamilton, 67 Iowa, 394. 
 lie may recover the value of the prop-
 
 THE APPELLATE COURT. 55 
 
 possession of the leased premises." If a mere superficial view 
 of the language of the statute were taken to the exclusion of all 
 other considerations, it might seem that the statute admits of no 
 exceptions, but this view can not be adopted without violating 
 settled principles. The familiar rule is that a statute is not to be 
 construed as if it stood alone, but settled principles must 
 be invoked and applied in giving it a construction. A statute 
 must take its place in a great system and can not be considered 
 as in itself embodying all the law, written and unwritten, upon 
 a broad subject. This rule, taken in conjunction with the rules 
 and principles which we have heretofore discussed, 1 and the 
 considerations suggested in the next paragraph, leads to the 
 conclusion that there is at least one well marked and clearly 
 defined exception to the rule expressed in the general words em- 
 ployed in the statute, and that exception is a case where the 
 title to land is appropriately put in issue by a party who has a 
 right to put it in issue. All the cases, as we have seen, con- 
 verge and harmonize upon the rule that where title to land is 
 rightfully made an issue, it is the dominating one to which 
 all incidents must yield. There are, of course, not many cases 
 of the character indicated by the language of the statute in 
 which title can rightfully be put in issue. 
 
 § 69. Rule where Title is put in issue — The words of the statute, 
 when analyzed and closelv studied, will be found to clearly 
 imply that the relation of landlord and tenant must exist, for 
 unless it does exist the action is not between landlord and 
 tenant. If the landlord has, subsequent to the creation of the 
 tenancy, divested himself of that title, the relation of landlord 
 and tenant ceases, and a new and different relation comes into 
 existence. 2 Where, therefore, the case is one in which a per- 
 son who originally entered as tenant may show a cessation or 
 determination of the lessor's title, and he does show it in the 
 mode provided by law, he necessarily shows that the action is 
 not one between landlord and tenant, but is one between parties 
 
 1 We have ijjiven reasons, and cited * Ante. §§40. 51. 52. 
 authorities, for our conclusion at an- 
 other place. Ante, §§ 40. 51, ;:.
 
 ;,,; APPELLATE PROCEDURE. 
 
 occupying an entirely different relation. Thus, if it be shown 
 that the party who entered as a tenant subsequently purchased 
 the land directly from the person under whom he entered, or at 
 a judicial sale, it is evident that the original relation is changed 
 into a radically different one. 1 If such a showing is made, the 
 'main and influential question becomes one of title in the strict 
 sense of the term. The words, " possession of the leased 
 premises," carry out the meaning we have ascribed to the other 
 words of the statute, for they imply that there must be property 
 held by one party of the other under a lease. A holding under 
 a claim, rightfully and appropriately asserted, other than that 
 created by a lease, is not, it is hardly necessary to say, "the 
 possession of leased premises." 
 
 § 70. Decedents' estates — Claims against — The sixth class of 
 cases which the statute declares shall be within the jurisdiction 
 of the Appellate Court is thus designated : "All cases of ap- 
 peals from orders allowing or disallowing claims against deced- 
 ents' estates." This statutory provision is, under the rule that 
 a statute is to be considered part of one great system, to be 
 taken in connection with the provisions found in the act regu- 
 lating the settlement of decedents' estates, and when thus taken 
 there can be no difficulty in determining the character of the 
 cases which form the class. The allowance or disallowance of 
 claims implies that there is a claim by a creditor, and proceed- 
 ings incidental to the main case go where the main case goes. 
 The provision quoted does not, however, carry to the Appellate 
 Court general probate matters, as cases involving the appoint- 
 ment or removal of executors or administrators, cases involv- 
 ing the construction of wills, cases involving the rights of heirs, 
 devisees, or legatees, cases involving the right to sell real es- 
 
 Rhyne v. Guevara, 67 Mi^s. 139; 6 these authorities show, as also do those 
 
 So. Rep. 736; Allen v. Griffin, 98 N. C. elsewhere cited, the person who origin- 
 
 120; Sharpe v. Kelly, 5 Denio, 431; ally entered as tenanl may, upon a due 
 
 Stoddard i>. Emery, 12S Pa. St. 436, 18 and sufficient showing, make a question 
 
 R. 139; Hopcraft v. Keys, 9 Bing. of title destructive of the relation of 
 
 Mackenzie, 1 Man. & landlord and tenant, and thus show that 
 
 G. 143; Nellis v. Lathrop, 22 Wend, he is not in possession of " leased prem- 
 
 121; Tilghman v. Little, 13 111. 239; ises," but is in possession of premises 
 
 Farris v. Houston, 74 Ala. 162. As of which he is the owner.
 
 THE APPELLATE COURT. 57 
 
 tate, or the like. 1 All such cases remain within the jurisdiction 
 of the Supreme Court by force of the rule that what of appel- 
 late jurisdiction is not taken from that court continues there. 
 
 § 71. Rules of Practice — The rules and practice of the Su- 
 preme Court govern the Appellate Court, and the statutory 
 provisions concerning appeals as well as the rules and decis- 
 ions of the Supreme Court, must be looked to for the rules of 
 procedure. The evident purpose of the legislature was to pre- 
 vent conflict between the decisions and the practice of the two 
 appellate tribunals. But, while the statute in terms provides 
 that the rules of the Supreme Court shall govern, 2 still, this 
 provision must, we suppose, be understood to mean that only 
 the general rules govern, for the Appellate Court must have 
 power, in virtue of its existence as a court of high rank, to 
 regulate mere matters of detail as the time of its sittings and 
 adjournments, the course of argument and matters of a similar 
 nature. 3 
 
 § 72. Supreme Court Decisions Control — It is provided in section 
 25 of the act creating the Appellate Court, that it " shall be 
 governed in all things by the law as declared by the Supreme 
 Court of this State, and that it shall not, directly or by impli- 
 cation, reverse or modify any decision of the Supreme Court of 
 the State." This is apparently an emphatic and explicit 
 declaration, but in reality it adds nothing to the law. 4 As we 
 have already shown, the element of sovereignty known as the 
 judicial must, of necessity, reside in its highest form in some 
 judicial tribunal. It is no more possible that there can be two 
 courts possessing the highest judicial power than that there can 
 be two Governors, or two General Assemblies. 5 The sphere 
 of the highest office, body or tribunal invested with an element, 
 or department of sovereign power is exclusive. 
 
 Ex parte Sweeney. 126 Ind. 583. * Julian v, Beal, 34 Ind. 371; Leard 
 
 1 Act February 28, 1891, §§ 12, 15. 25; v. Leard, 30 Ind. 171. 
 
 Acts 1S91. p. 39. 5 Field .,_ The p e0 pi ei , Scam. (111.) 
 
 3 Dodge v. Cole, 97 111. 338. 79.
 
 58 APPELLATE PROCEDURE. 
 
 § 73. Transfer of Cases- The act creating the Appellate Court 
 requires that transfers of cases shall be made from one of the 
 appellate tribunals to the other, and this provision is valid. 
 Long recognition of the power of the General Assembly to 
 transfer causes from one court to another would go very far to 
 support the conclusion that the constitution grants this power 
 even if the question were a doubtful one, for practical exposition 
 is an important factor in the construction of constitutions or 
 statutes. 1 Statutes have been enacted in this State transferring 
 cases from one tribunal to another, as from the old common 
 pleas to the circuit court ; from the circuit to the criminal court, 
 and from the circuit to the superior court, and neither from the 
 bench nor from the bar has there been a suggestion that these 
 enactments were invalid. The recent decisions made by the 
 Supreme Court directing the transfer of cases, although no ex- 
 press statement is made upon the subject, fully recognize the 
 validitv of the provisions of the act respecting the transfer of 
 cases. 2 It is evident that the question affects the remedy and 
 not the substantive right, so that it seems very clear that it is 
 within the power of the legislature to substitute one tribunal for 
 another,'' provided, of course, that no constitutional right or 
 power is taken from a constitutional tribunal, and citizens are 
 not deprived of a right to a decision by a court created under 
 valid laws. 
 
 § 74. Disqualification of one Judge — Jurisdiction not ousted — A 
 
 transfer from the docket of the Appellate Court to that of the 
 Supreme Court mav be ordered where there is one disqualified 
 judge and the remaining four judges divide equally. The pro- 
 visions concerning the course to be pursued where one judge is 
 
 1 Hoveyw. State, 119 Ind. 386; Weav- inson, 5 Nev. 15; Pike v. Megoun, -14 
 
 er ii. Templin, [13 [nd. 298,301 ; Board M0.491; People v. Board, 100 111. .495; 
 
 of Com Bunting, in Ind. 143; State -■■ French, 2 Pinner (Wis.), 181. 
 
 Schuyler, | Gilm. (111.) 221; 2 This general, doctrine is affirmed by 
 
 Rogers 1 .Goodwin, 2 Mass. \~^: Stuart the Supreme Court of Illinois. Young 
 
 Laird, 1 Cranch, 299; Martin v. v. Stearns, 91 111. 221; Fleischman v. 
 
 Hunter, 1 Cohens v. Vir- Walker, 91 111. 318; Meeks v. Leach, 
 
 ginia, 6 Wheat. 264; Ogden v. Saund- 91 111. 323; Millard v. Board, 116 111. 
 
 ers, 12 Wheat. 213, 290; Minor V. 23. 
 
 Happersett, 21 Wall. 162; State:. Park- 3 Cooley'e Const. Lim. (6th cd.), 112.
 
 THE APPELLATE COURT. 
 
 disqualified are not so clear as might be desired, but it has been 
 held that where there are four judges capable of acting and 
 there is not a tie, the case remains in the Appellate Court. 1 
 Any other conclusion would imply that the General Assembly 
 meant to declare that the one interested judge would, or. at 
 at least, might, unduly influence the other four, and such an 
 implication ought not to be made. 
 
 1 City of Hammond v. New York, etc.. 126 Ind. 597; Benedict v. Farlow. 
 1 Ind. App. Ct. 160.
 
 CHAPTER V. 
 
 WHAT MAY BE APPEALED FROM. 
 
 § 75. Appeal — Right of. 
 
 76. Appeal is part of the remedy. 
 
 77. Appellate Jurisdiction conferred 
 
 by law. 
 
 7 s . Only judicial questions consid- 
 ered on appeal. 
 
 79. Appeals lie from judgments or 
 decrees only. 
 Appeals lie only from final judg- 
 ment! — General rule. 
 
 81. What is a final judgment. 
 
 Sj. Difference between intermediate 
 decisions and final judgments. 
 
 83. Final judgment disposes of entire 
 
 case. 
 
 84. Objecl and scope of the rule. 
 
 85. Requisites of a final judgment. 
 
 86. 1 Hstinct actions. 
 
 Appeal from judgment of review. 
 
 88. Order setting aside execution. 
 
 89. Removal of case to Federal Court. 
 Material issues musl be deter- 
 mined. 
 
 Rights of all parties must he ad- 
 judicated. 
 
 92. Judgment may he final, although 
 
 : der may he required tor its 
 enforcement. 
 
 93. Decree in partition proceeding. 
 
 94. Form of judgment not important. 
 
 § 95. Independent i-sues not all 
 all parties. 
 
 96. Record must show final judg- 
 ment. 
 
 07. Limitation of appeals to desig- 
 nated clashes of cases controls 
 jurisdiction. 
 
 98. Distinct ami independent claims. 
 
 (/j. Appeal of part of a cause — Ex- 
 ceptional cases. 
 
 100. Interlocutory order appointing a 
 
 receiver. 
 
 101. Interlocutory order for payment 
 
 of money. 
 [02. Order directing execution of a 
 written instrument. 
 
 103. Order requiring delivery of prop- 
 
 erty. 
 
 104. Order requiring assignment ofin- 
 
 struments. 
 
 105. Order compelling execution of in- 
 
 strument ot" writing. 
 
 106. Order -ranting or denying an in- 
 
 junction. 
 
 107. Interlocutory order in Habeas 
 
 Corpus proceedings. 
 
 108. Effect ot' appeal from an inter- 
 
 locutory order. 
 
 nil). Mode of appealing from inter- 
 locutory orders. 
 
 no. Void judgments — Appeals from. 
 
 S 7-k Appeal — Right of— An appeal is the only mode provided 
 by out- laws tor removing a case from an inferior tribunal to 
 one of appellate jurisdiction. Appeals are allowed in all cases 
 where a judicial decision is sought to be brought before the 
 court of last resort for review. In this State we have no writs. 
 
 (60)
 
 WHAT MAY BE APPEALED FROM. 61 
 
 of error. It is laid down by the authorities that the right of 
 appeal is purely a statutory one and this is undoubtedly the 
 general rule. 1 A party who brings an action does not by such 
 an act acquire a vested right to a decision from a particular 
 tribunal. 2 . This rule is no more than an extension of the gen- 
 eral principle that there is no vested right in a remedy. 3 The 
 rule is illustrated in the numerous cases which hold that matters 
 of procedure are governed by the law in force at the time the 
 remedy prescribed is administered. 4 
 
 § 76. Appeal is part of the Remedy — The principle that an ap- 
 peal is part of the remedy and that the legislative authority 
 over remedies is very comprehensive leads to the conclusion 
 that, as a general rule, only such judgments can be appealed 
 from as are designated, expressly or impliedly, by a statute 
 authorizing appeals. It leads, also, to the further conclusion 
 that the appeal must be taken in the time and mode prescribed 
 by statute. Parties can not by their own acts appeal in a case 
 where no appeal is authorized by law, nor can they get a case 
 into an appellate court in an unauthorized mode. ' 
 
 1 Ex parte McCardle, 7 Wall. 506; Butler v. Palmer, 1 Hill, 324; Cowgill 
 State v. Slevin, 16 Mo. App. 541; Kun- -•. Long, 15 111. 202; Miller v. Graham, 
 dinger v. Saginaw, 59 Mich. 355, 26 N. 17 Ohio St. 1; State v. Squires, 26 la. 
 W. Rep. 634; City of Minneapolis v. 340. 
 
 Wilkin, 30 Minn. 140; La Croix v. 3 Mayne v. Board of Commissioners. 
 
 Commissioners, 50 Conn. 321; State v. 123I1KL 132; Uwchlan T,j; Road, 30 Pa. 
 
 Meeker, 19 Neb. 444; Wilcox v. Saund- St. 157; Stephenson :•. Doe, S Blackf. 
 
 ers, 4 Neb. 569; State v. Ensign. 11 508. 
 
 Neb. 529, 531; St. Louis, etc., Cat'. Lux, * Watson v. Mercer, S Peters, S8; 
 
 63 111. 523; Huntingdon County v. Kauf- Mather v. Chapman, 6 Conn. 54; Peo- 
 
 man (Pa.), 17 Atl. R. 595; Matter of pie v. Supervisors, 20 Mich. 95; Mc- 
 
 State Reservation, 102 N. Y. 734; Nor- Lane v. Bonn, 70 la. 752; Bat 
 
 folk Southern R. Co. v.Elly, 95 N.C. 77; Sheets, 64 Ind. 209; Moss v. State. 
 
 Appeal of Houghton, 42 Cal. 35; Law- 101 Ind. 321; Knoup v. Piqua Bank, 
 
 renceburgh, etc., Co. v. Smith, 3 Ind. 1 Ohio St. 603. See, generally, Gorlev 
 
 253; Sims v. Hines, 121 Ind. 534, 537. v. Sewell, 77 Ind. 316; Mulcahey v. 
 
 In Ex parte McCardle, supra, the Su- Givens, 115 Ind. 286. 
 
 preme Court of the United States held 6 McNay v. Startton, 109 111. 30; 
 
 that the repeal of a statute creating the Ladow v. Groom, 1 Denio, 429; Florv 
 
 right of appeal destroyed the right, and v. Wilson, 83 Ind. 391; Wait v. Van 
 
 that an appeal, although taken before Allen, 22 N. Y. 319; Westmoreland 
 
 the repeal, could not be maintained. Co. v. Overseers of Conemaugh Tp., 34 
 
 2 Bacon v. Callender, 6 Mass. 303; Pa. St. 232; Moore v. Ellis, iS Mich. 77. 
 Patterson v. Philbrook. q Mass. 151;
 
 A.PPELLA IT. PR< K EDI RE. 
 
 7. Appellate Jurisdiction conferred by law — As jurisdiction 
 ppeals is created by law, it is evident that parties can not, 
 by their own acts, create a right of appeal. To permit parties 
 to create such a right would be to allow a violation of the rule 
 to which we have often referred, that parties can not confer ju- 
 risdiction of the subject by consent. 1 It may, however, be well 
 to observe in passing, although somewhat aside from our main 
 topic, that a mere irregularity in taking an appeal may be 
 waived. 2 
 
 ^ 78. Only Judicial Questions considered on Appeal — In another 
 place we have shown that only judicial powers can be conferred 
 upon the courts. 3 An appellate court can not, therefore, be 
 required or empowered to entertain jurisdiction of any other 
 controversies than those involving judicial questions. To 
 authorize an appeal there must be a decision by a court, or by 
 some judicial tribunal. Appeals will not lie from decisions upon 
 ministerial, legislative or executive questions. 4 That there can 
 be no appeal to a court except in cases where judicial questions 
 are involved is well settled, but it is difficult, in some instances, 
 to determine what are judicial questions. In many instances 
 questions of a judicial nature are committed to quasi judicial 
 tribunals, and in such cases there is often difficulty in determin- 
 ing whether an appeal will lie. 5 It may be said with safety that 
 
 1 Sampson v. Welsh, 24 How. (U. S.) Oregon, 244, 19 Pac. R. S6; Mohney v. 
 207; Mills v. Brown, 16 Peters, 425. Redbank Township (Pa.), 15 Atl. R. 
 
 2 Dowell :•. Caruthers, 26 Kan. 720. 891. 
 
 8 Appellate Tribunals, Chapter I. 5 The general rule probably is that 
 
 4 Farley v. Board of Commissioners, no appeal will lie. Board v. Smith, 40 
 
 126 [nd. 468, S.C. 26 N. E. R. 174; Bun- Ind. 61; Bosley v. Ackelmire, 39 Ind. 
 
 nellr. Board, 124 Ind. 1; Welch t'.Bow- 3S6; Cole v. Howard, 56 Ind. 330; Al- 
 
 man. 103 Ind. 252. 2 \. K. K. 722; Platter len r\ Ilostetter, 16 Ind. 15; City of 
 
 v. Board, 103 Ind. 360, 374; Waller :■. Peru v. Beares, 55 Ind. 576; Windman 
 
 Wood, 101 hid. 13S; O'Boyle v. Shan- v. City of Vincennes, 58 Ind. 4S0; 
 
 non, 80 tnd, 159; City of Terre Haute Trustees of the Town of Princeton v. 
 
 I ire Haute, etc., Co., 94 Ind. 305; Manck, 5$ Ind. 51; Church v. Town of 
 
 Crow v. Board of Commissioners, 118 Knightstown, 35 Ind. 177. Thestatute 
 
 Ind. 51; Hanna v. Board, 29 Ind. 170; may, however, make questions of the 
 
 Pittsburgh, etc., Co. v. Board, etc., 28 general character referred to judicial, 
 
 ^ • Va, 264; A 1 l'ii : . Cerro Gordo Co., and granl an appeal from the decision 
 
 ;i Iowa, 54; Colvig v. Klamath Co., 16 of the interior tribunal and thence to
 
 WHAT MAY BE APPEALED FROM. 
 
 where a discretionary power is conferred upon an officer or 
 tribunal the general rule is that no appeal can be taken from a 
 decision made by such an officer or tribunal. 1 
 
 § 79. Appeals lie from Judgments or Decrees only — The rule that 
 where the trial court has no jurisdiction the appellate tribunal 
 has none, requires that the question in the former court should 
 be essentially a judicial one. The inquiry is usually whether 
 the nature of the case as it existed in the trial court was such 
 as to call into exercise the judicial power. The fact that the 
 case comes to the Supreme Court or to the Appellate Court, 
 from a court of general jurisdiction, such as a circuit court, a 
 criminal court, or a superior court, does not, as the authorities 
 heretofore cited show, necessarily establish jurisdiction. The 
 judicial power must be exercised, or its exercise rightfully de- 
 manded and refused, in the court of original jurisdiction, or 
 there can be no judgment from which an appeal can be prose- 
 cuted. Where there is no judicial question to decide there can 
 be no judgment, and it is only from judgments, using the term 
 "judgments " in a broad sense, that our laws authorize an ap- 
 peal. If our conclusion is incorrect then there is no virtue in 
 the ancient rule that a party must have his day in court, for this 
 rule applies only in cases where a decision of a judicial nature 
 is required, as purely and exclusively legislative or ministerial 
 questions may, as is well known, be decided without notice, 
 although it is otherwise where a judicial decision is to be given. 
 
 § 80 Appeals lie only from Final Judgments — General rule — To 
 
 authorize an appeal there must be a judgment. 2 As a general 
 rule appeals will lie only from final judgments, 3 but to this gen- 
 
 the Supreme Court, as has been done 2 Dale v. Copple, 53 Mo. 321; Jones 
 
 in street assessment cases and other v. Snodgrass, 54 Mo. 598; Wilson v. 
 
 cases of a similar character. Hulz, 61 Mo. 445; Western Union Tel. 
 
 1 Weaver v. Templin, 113 Ind. 29S; Co. v. Locke, 107 Ind. 9; Powell Ap- 
 
 Kirkpatrick v. Taylor, 118 Ind. 320; pellate Proceedings, 367. 
 
 Leeds :•. City of Richmond, 102 Ind. 3 Miller v. State, S Ind. 325; Rei 
 
 372; Smith v. Corporation of Wash- State, 8 Ind. 416; Ham rick v. The Dan- 
 
 ington, 20 How. 135; Davis v. Mayor, ville, etc., Co., 30 Ind. 147; State v. Ely, 
 
 1 Duer, 151; Piatt v. Chicago, etc., Co., 11 Ind. 313; Northcutt v. Buckles, 60 
 
 74 Iowa. 127. S. C. 37 X. W. Rep. 107. linl. 577; Goodwin ;•. Goodwin. 4S Ind.
 
 64 APPELLATE PROCEDURE. 
 
 era] rule there are exceptions which will be presently noticed. 
 The rule restricting appeals to cases where a final judgment 
 has been rendered is necessary to prevent the division of a case 
 into parts and to prevent a multiplicity of actions. 1 The rule 
 is in strict harmony with the principle, of which we have al- 
 ready spoken, that cases must be decided as an entirety and 
 bv one tribunal. 
 
 § 81. What is a Final Judgment — It is not always easy to de- 
 termine what shall be considered a final judgment, and it will 
 assist in clearing away difficulties to notice orders and rulings 
 which are declared not final judgments within the meaning of 
 the law governing appeals. A ruling upon a demurrer to a 
 pleading, whether the ruling is for or against the demurring 
 party, is not a final judgment. 2 An appeal will not lie from a 
 ruling denying a motion to quash an indictment.' 5 Stating con-' 
 elusions of law upon a special finding does not constitute a final 
 judgment, 4 nor is a ruling .suppressing a deposition/' Orders 
 setting aside former orders are, as a general rule, not final 
 judgments. 6 Orders admitting or refusing to admit parties can 
 
 r v |. Martindale v. Brown, 18 Ind. 2C4; 33; Hilliard New Trials (2d ed.). 712; 
 Thiebaud v. Dufour. 57 Ind. 598; Reed Powell Appellate Proceedings. 369. 
 - Reed, 44 Ind. 429: Hamlyn v. N'es- 2 Slavic v. Bodmer, 58 Ind. 465; New- 
 bit, 37 Ind. 2S4; Taylor v. Board of ell v.Gatling, 7lnd. 147; National Bank- 
 Commissioners of Jay Co., 120 Ind. 121; ing, etc., Co. v. Knaup, 55 Mo. 154; 
 Stat. v. Spencer, 92 Ind. 115; State Rubey v. Shaw, 51 Mo. 116; Griffee v. 
 v. Evansville, etc., Co., 107 Ind. 581; Mann, 62 Md. 248; Kirchner v. Wood, 
 Guardian Savings Bank v. Reilly, 8 4S Mich. 199. 
 
 Mo. App. 544; State v. Sutterfield, 3 Farrel v. State, 7 Ind. 345; Pigg v. 
 
 -1 M<>. 391; Hawkins v. Massie, 62 State, 9 Ind. 363; Woolley v. State, 8 
 
 Mo. 552; McCullum v. Eager, 2 How. Ind. 377. 
 
 61; Walker v. Spencer. 86 N. Y. 4 Northcutt v. Buckles, 60 Ind. 577; 
 
 162; Piedmont Manufacturing Co. f. Johnson v. Northern, etc., Co., 39 Minn. 
 
 Buxton, 105 V C. 7). 11 S. E. Rep. 30, 38 N. W. Rep. 804. 
 
 Home for Inebriates v. Kaplan 6 Reese v. Buck, 9 Ind. 238. 
 
 -I Pac.Rep. no; Davie v. Davie, 6 Wood v. Wood. 51 Ind. 141; Mar- 
 
 52 Ark. 221, S. C. 20 Am. St. R. 170 and tiiulale v. Brown, iS Ind. 2S4. See, also, 
 
 note 173; In re Davis' Estate (Mont.), Spaulding v. Thompson, 12 Ind. 477; 
 
 27 Pac. Rep. 342. Branham r.Ft. Wayne, etc., R. R. Co., 
 
 1 Western Union Tel. Co. v. Locke. 7 Ind. 524. 
 107 Ind. 9; Freeman on Judgmenl
 
 WHAT MAY BE APPEALED FROM. ,;- 
 
 not be regarded as final judgments authorizing an appeal. 1 An 
 order to produce papers or documents is not final. 2 The weight 
 of authority is that no appeal will lie from an order dissolving 
 or refusing to dissolve an attachment, 3 although the cases are 
 conflicting. Orders reforming pleadings and orders granting 
 or denying a continuance are not final. 1 
 
 § 82. Difference between intermediate Decisions and Final Judg- 
 ments — Confusion has been produced in some cases by failing 
 to discriminate between rulings that may be made available on 
 appeal and final judgments from which an appeal is authorized. 
 It is obvious that many rulings may, when duly excepted to, 
 be available as causes for a reversal of the judgment, and vet 
 no one of them, nor all of them combined, constitute a final 
 judgment within the meaning of the law governing appellate 
 jurisdiction and procedure. Thus a ruling denying a motion 
 in arrest of judgment is not final, although it may constitute the 
 basis of a specification of error. 5 An order denying a motion 
 presenting a jurisdictional question is not a final judgment, 6 
 nor is an order appointing an examiner to take testimony, al- 
 though such orders may, when they affect the rights of the par- 
 ties injuriously, and when presented in a proper mode, be 
 
 1 Lamon v. McKee, 7 Mackey, 447, Freeman (X. D.), 46 N. W. Rep. 36. 
 S. C. 17 Wash. Law. Rep. 806; In re See post, § S8, note 3. Haebler v. 
 Ohm's Estate, S2 Cal. 160,22 Pac. R. Bernharth, 115 N.Y.459, is a case where 
 927. the judgment was final upon the attach- 
 
 2 Western Union Tel. Co. v. Locke, ment, as it was in favor of a third per- 
 107 Ind. 9; Cleveland, etc., R. R. Co. son. 
 
 v. Closser ct al., 126 Ind. 34S; Logan * Read v. Gooding, 20 Fla. 773; Wil- 
 
 v. Pennsylvania Co., 132 Pa. St. 403, 19 son v. City of Wheeling, 19 W. Va. 
 
 Atl. Rep. 137. 323; Carpenter v. Reynolds. 58 Wis. 
 
 3 State v. Miller, 63 Ind. 475; Abbott 666; Wiggins v. McCoy, S7 X. C. 499. 
 v. Zeigler, 9 Ind. 511; Forbes ^.Porter, 5 People v. Toal (Cal.). 23 Pac. Rep. 
 23 Fla. 47, 1 So. Rep. 336; Snavely v. 203. See, generally. Murphy v. King, 
 Abbott Buggy Co., 36 Kan. 106, 12 Pac. 6 Mon. 30, 9 Pac. Rep. 585; Davis v. 
 Rep. 522; Simpson v. Kirschbaum, 43 Donner, S2 Cal. 35, 22 Pac. Rep. S79. 
 Kan. 36, 22 Pac. Rep. 1018; Duncan v. 6 School District of Adams County 
 Forgey, 25 Mo. App. 310; Contra, v. Cooper, 29 Xeb. 433, S. C. 45 X. W. 
 Quebec Bank v. Carroll (S. D.), 44 X. Rep. 61S. 
 
 W. Rep. 723; Red River, etc., Bank :■. 
 5
 
 ,;,; APPELLATE PROCEDURE. 
 
 grounds for the assignment of errors on appeal. 1 An order 
 refusing a non-suit or an order refusing to dismiss is not a final 
 judgment, although, if erroneous, the error may be made 
 available. 2 But such an order may become final if the defend- 
 ant stands upon his motion and final judgment is given upon it. 
 Orders of reference or orders regarding the mode of trial are 
 matters on which specifications of error may be ultimately 
 founded, ; but they are not, as a general rule, final judgments. 4 
 An order declaring a recognizance is not, it has been held, a 
 final judgment authorizing an appeal. 3 
 
 § 83. Final Judgment disposes of the entire case — 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 upon the questions presented by the issues, no 
 matter how clearly and decisively the order may indicate what 
 the ultimate judgment will be/' Until there is an ultimate 
 judgment the case is not finally disposed of inasmuch as the 
 trial court may change its rulings, award a venire de novo, 
 grant a new trial, or make some such order, notwithstanding 
 
 1 See, genenillv, Davie v. Davie, 52 the ultimate ruling the specification of 
 Ark. 224, S. C. 12 S. W. Rep. 55S; error must be made. 
 
 Hilliard v. Oram, 106 X. C. 467, S. C. * Schnitzius v. Bailey (N. J.), iS Atl. 
 
 1 1 S. E. Rep. 514; Woods v. Dickinson, Rep. 192; Kille v. Reading Iron Works 
 
 7 Mackey, 301; Blackwell v. McCaine, (Pa.), 19 Atl. Rep. 5 f 7 ; Wallace v. 
 
 S. C. 11 S. E. Rep. 360. Douglas, 105 N. C. 42; Smith r\ Thom- 
 
 2 Witkowski v. Hern, 82 Cal. 604, 23 ason, 26 So. Car. 607; Lowndes v. 
 
 152; Simpson v. Kirchbaum, Miller, 25 So. Car. 119; Conant v. 
 
 43 Kan. 36; Simpson v. Rothschild, 43 Riseborough, 30 111. App. 49S. 
 Kan. 53, 22 Pac. Rep. 1019; Grimes v. 5 People v. Stimer (Mich.), 46 N. W. 
 
 ibcrlain, S.C.27 \. k<"S. 1 ; WW. Rep. 28. 
 Rep. 395. See, generally, List v. Jock- 6 Gilpatrick v. Glidden, 82 Me. 201, 
 
 heck Kan.), 27 Pac. Rep. [84; Clark v. 19 Atl. Rep. 166. This is really noth- 
 
 . \g WW. Rep. 374: Sand- ing more than the logical expansion of 
 
 er, etc., Co. v. Yi ler's Estate Wash.), the settled general rule that from inter- 
 
 27 Pac. Rep. 269; Gilmore v. Hani, 15 mediate rulings or interlocutory orders 
 
 X. V. Supp. 391. an appeal will not lie. Johanru 
 
 8 Wr .In mil mean to be understood Young, 42 Wis. 401 ; Joint School Dist. 
 
 that specifications of error may be di- v. Kemen, 6S Wis. 240; Webster, etc., 
 
 rectly made upon such orders or rul- Co. v. St. Croix Co., 63 Wis. 647; 
 
 , for, as will hereafter be shown, the Hoey v. Pierson, 67 Wis. 262, 267; 
 
 orders and rulings must first be present- Goldmark v. Rosenfeld, 69 Wis. 469. 
 ed to the trial court for review, and upon
 
 WHAT MAY BE APPEALED FROM. 67 
 
 the fact that in other rulings it may iiave clearly manifested a 
 purpose to carry its rulings into the ultimate judgment or de- 
 cree. A decretal order although interlocutory in its nature 
 may, of course, be carried forward and embodied in a final 
 decree l and thus become an essential part of that decree, but 
 until it is so embodied in the final decree no appeal will lie. 
 The rule that no matter how decisive may seem the ruling of 
 the trial court it is not a final judgment, 2 is well illustrated by 
 the cases in which rulings were made denying a motion for a 
 judgment on a special verdict or on the answers of a jury to 
 special interrogatories, 3 for such a ruling is seemingly as clearly 
 indicative of what the final judgment will be, as it is possible 
 for any order to be, except, of course, the ultimate judgment 
 itself. 
 
 § 84. Object and Scope of the Rule — The general rule that ap- 
 peals lie only from final judgments is so essential to the orderly 
 administration of justice, and has so much to commend it, that 
 it is with reason that statutory provisions creating exceptions 
 are construed with some strictness. The doctrine is that where 
 a general rule exists, and a party asserts that his case forms an 
 exception to the rule, he must show substantial grounds for his 
 
 •Farmers Loan and Trust Co. v. verdict, said: "No judgment has as 
 
 Canada, etc., R. Co., 127 Ind. 250. jet been entered. The mere fact that 
 
 2 It is questionable whether the decis- the order for judgment includes an 
 ion in the case of Gruhl v. Gruhl, 123 order denying the defendant's motion 
 Ind. S6, can be supported upon any for judgment, does not make the order 
 ground, for the allowance was a mere appealable, since every order for judg- 
 incident of the main suit for divorce; ment wholly in favor of one party nec- 
 but if the decision in that case can be essailly precludes any judgment in 
 upheld upon any ground it must be favor of the other party. In other 
 upon the ground that section 1042 of words, the two orders mentioned are 
 the statute, by reference to the practice together, in effect, but one order for 
 in suits for injunctions, impliedly an- judgment in favor of the plaintiff and 
 thorizes an appeal. If the decision can against the defendant." It is true, we 
 in any event be sustained its doctrine may say in passing, that the Wisconsin 
 should be limited and not extended. statute is different from ours, but the rul- 
 
 3 Murray v. Scribner, 70 Wis. 22S; ing principle is not essentially changed 
 Treat v. Hiles, 75 Wis. 265. In the by the difference in the two statutes. 
 first of the cases cited it was said by R. S. of Wis., § 3069; R. S. of Ind. 
 Cassoday, J., in speaking of the ruling 1SS1, §§ 632, 646. 
 
 on a motion for judgment on the special
 
 GS 
 
 APPELLATE PROCEDURE. 
 
 claim, or the case will be brought under the rule. 1 This doc- 
 trine is applied with liberality to prevent appeals from inter- 
 mediate rulings or interlocutor)' orders, for, in almost every form 
 in which the question has been presented, the courts have 
 exhibited their reluctance to multiply or recognize exceptions 
 to the general rule. 2 One who asserts that his case constitutes 
 an exception to the rule must be prepared to show a solid basis 
 for his claim, or the general rule will be preferred to the ex- 
 clusion of his claim. The object of the rule is to prevent the 
 multiplication of appeals, and to require parties to submit a case 
 once for all. Its scope is comprehensive, and few exceptions 
 break its force or narrow its operation. 
 
 ^ 85. Requisites of a Final Judgment — A judgment may be 
 final in such a sense as to authorize an appeal although it may 
 create no lien and may be, in some respects, vague and uncer- 
 tain, for the strict rule which applies where the question is as to 
 the sufficiency of a judgment does not always govern where 
 
 1 The Indianapolis, etc., Co. v. Wat- 
 son, 114 Ind. 20. 
 
 2 In addition to the authorities already 
 referred to upon the question of what 
 are interlocutory orders and intermedi- 
 ate rulings from which an appeal will 
 lie, the following cases may be cited, 
 showing what orders are regarded as 
 interlocutory or intermediate: A de- 
 cree that does not settle the amount of 
 the recovery. I lunter v. 1 [unter, 100III. 
 519; Granl v. Phoenix Ins. Co., 106 U. 
 S. (.29; Burlington, etc., Co. v. Sim- 
 mons, 123 U. S. 52; Railroad Co. v. 
 Swasey, 23 Wall. 405. An order vacat- 
 
 ,1' and admitting parties 
 to defend. McCulloch v. Dodge, 8 
 Kan. .476; Prentice V. Rice, 2 Dougl. 
 (Mich.) 296; /// re Studdart, 30 Minn. 
 Owne v. Going, 7 Col. 85; Young 
 r\ Matthiesen, etc., Co., 105 111. 26; but 
 see Morse V. Stockman. 6<; Wis. 36. 
 Admitting or refusing to admit parties. 
 Coburn v Smart, 53 Cal. 742; State :'. 
 Parish Judge, 27 La. Ann. 184. An 
 
 order respecting a guardian's report and 
 directing another report. Pfeiffer v. 
 Crane, 89 Ind. 485. An order that a 
 bill be taken pro covfesso. Russell v. 
 Lathrop, 122 Mass. 300. An order to 
 interplead. Barth v. Rosenfield, 36 
 Mil. 604. Orders respecting time of 
 trial and place on calendar. Morgan 
 v. Keenan, 27 So. Car. 248, 3 S. E. 
 Rep. 297; Shearouse v. Smith, 83 Ga. 
 520, 11 S. E. Rep. 560. An order dis- 
 posing of the case as to part of the 
 issues or parties. Liliensterne v. Lewis 
 (Texas), 12 S. W. Rep. 750. In the 
 following cases will be found illustra- 
 tions of some other phases of the sub- 
 ject of interlocutory orders: Hazelhurst 
 v. Morris. 2S Md. 67; Sellers v. Union 
 Lumber Co., 36 Wis. 398; Eastham v. 
 Sallis, 60 Tex. 576; Macnevin v. Mac- 
 nevin, 63 Cal. 186; Low v. Crown 
 Point, etc., Co., 2 Nev. 75; Scott v. 
 Burton, 6 Tex. 322, S. C. 55 Am. Dec. 
 7S2; Hawkins v. Massie, 62 Mo. 5S2.
 
 WHAT MAY BE APPEALED FROM. 69 
 
 the question is simply as to the right to appeal. There is a 
 distinction between the two classes of cases, for there may often 
 be an appeal from an order so defective in form as not to be 
 sufficient to support an action upon it, or so defective as not to 
 be strong enough to resist a direct assault. The test, to out- 
 line it in a rough way, is not whether the order will support a 
 complaint upon it as a judgment, or create a lien or resist a di- 
 rect attack, but whether it puts an end to the particular case as 
 to all the parties and all the issues. As illustrating the doctrine 
 stated may be taken the case wherein it was held that an ap- 
 peal will lie from an order setting aside a commissioner's sale 
 entered upon the exceptions of the purchaser. 1 Of the cases 
 out of the usual line, but illustrating what has been said, may 
 be adduced cases such as those wherein an order is made dis- 
 barring an attorney, discharging a guardian, and the like. 2 
 Cases of the class represented by the particular instances pro- 
 ceed, as a rigid analysis will disclose, although this is not al- 
 ways avowed, upon the theory that the order or judgment puts 
 an end to the whole controversy involved in the particular in- 
 stance, although it does not adjudicate upon the entire subject 
 in such a manner as to terminate all litigation that can arise 
 concerning or affecting the general subject. 
 
 § 86. Distinct Actions — A complaint for a new trial for causes 
 discovered after the term constitutes the foundation of a new 
 and distinct action, as is held b}' - the later cases, and from a 
 
 1 Hollett v. Evans et a/., 28 Ind. 61. cases is that as long as the estate is 
 An appeal will lie from an order di- open there is no appeal from interlocu- 
 recting an execution to issue. Entrop tory or intermediate orders. Pfeiffer :•. 
 V. Williams, n Minn. 381. Crane. 89 Ind. 4S5; Goodwin :•. Good- 
 
 2 Order disbarring an attorney. Ex win, 4S Ind. 5S4; Pate v. Moore. 79 
 parte Trippe, 66 Ind. 531. Removal of Ind. 20; Candy v. Hanmore, 76 Ind. 
 aguardian. Ward v. Angevine, 46 Ind. 125; Sanders :•. Lov, 61 Ind. 29S; Crav- 
 415. Order regarding custody of a child, ens v. Chambers, 55 Ind. 5; Parsons:'. 
 Henson v. Walts, 40 Ind. 170. But the Milford, 67 Ind. 4S9; Lang :•. The 
 general rule respecting guardianships, State, 67 Ind. 577; Heffner v. Day, 54 
 decedents' estates, insolvents' estates. Ark. 79. S. C. 14S.W. Rep. 1090. Koran 
 trust estates and similar matters, is that example of a final judgment in the 
 
 no appeal lies from an order approving of an insolvent's estate, see, Bradford 
 a current account or report. The the- :•. Higgins (Neb.), 47 X. W. Hep. 749. 
 ory generally asserted by the adjudged
 
 
 APPELLATE PROCEDURE. 
 
 judgment in such an action an appeal will lie. 1 The element 
 which gives the peculiar character to the class of cases of which 
 are speaking is that which marks each of its members as a 
 distinct and independent action, for, without this element, such 
 a case would fall within the ordinary rule which treats a motion 
 for a new trial as an incident of the main proceeding. If the 
 motion for a new trial is no more than an incident, then, of 
 course, no appeal will lie from the isolated ruling upon it, 2 al- 
 though questions presented by it will be considered on an ap- 
 peal from the final judgment. 
 
 § 87. Appeal from a judgment of Review — An appeal will lie 
 from a final judgment in a suit to review' a judgment. 3 The de- 
 cisions which declare and enforce the rule we have just stated 
 impliedly assert the doctrine of which we have often spoken, 
 that is, that a judgment which puts an end to the particular 
 case so far as an end can be put to it in the court where it 
 is pending is a final judgment from which an appeal will lie. 4 
 
 ' Hines v. Driver, 89 Ind. 339, over- 
 ruling House v. Wright, 22 Ind. 3S3; 
 White v. Harvey. 23 Ind. 55. and citing, 
 
 [Staining the rule, the cases of 
 McCall v. Hitchcock, 7 Bush. (Kv. 
 615; Belt v. Davis. 1 Cal. 134; Kee v. 
 
 •onald, 17 Ind. 518; Glidewell v. 
 I > i^uy, 21 Ind 95; Huntington v. Drake, 
 j I [nd.347; Houston v. Bruner, 39 Ind. 
 376: Sanders :•. Lov. 45 Ind. 229; 
 Hiatt v. Ballinger, 59 Ind. 303; Hill 
 v. Roach. 72 Ind. 57; Kitch v. Otis. 79 
 Ind. 96. In Harvey v. Fink, in Ind. 
 249, Hines v. Driver, supra, is approved 
 and followed; see, also, Hines v. Driver, 
 100 Ind. 315, 316. 
 
 .11 Ind. 313: State v. 
 
 1 115; Lawson v. Moore, 
 
 44 Ala. 274; Ex part, Sim-. 44 Ala. 
 
 McDonough v. Nicholson, 46 M<>. 
 
 Artman v. West Point, etc., Co., 
 1'' Neb. 572; Houston v. Starr. 12 Tex. 
 424; Tucker :•. Sandridge, 82 Va. -32. 
 
 3 Keeper v. Force, S6 Ind. Si; Brown 
 v. Keyser, 53 Ind. 85. See, also. Rich- 
 
 ardson v. Honk. 45 Ind. 451; Leech v. 
 Perry. 77 Ind. _|22. 
 
 * In Brown v. Keyser, supra, it was 
 said : "A judgment for o* - against a re- 
 view of a former judgment puts an end 
 to the action for a review. If the judg- 
 ment isagainsl a review, the whole pro- 
 ceedings are at end. If the judgment 
 is for the review, as in this case, the ac- 
 tion for review is ended, and no further 
 proceedings are to be had in that action. 
 Any further proceedings contemplated 
 are to he had on the original action ami 
 not on the action for review." The ar- 
 gument contained in the extract made 
 from the opinion in Brown :■. Keyser. 
 gives support to the decision in Hines 
 -'. Driver, 89 Ind. 339, inasmuch as it 
 may be justly said that where there are 
 further proceedings to be had in the 
 event that a new trial is awarded, they 
 are to be had in the original case, and 
 if a new trial i- denied the original 
 judgment remains undisturbed.
 
 WHAT MAY BE APPEALED FROM. 71 
 
 But where the judgment sought to be reviewed is one from which 
 an appeal will not lie, then no appeal can be taken from the 
 judgment in the suit for review. 1 This ruling is right, since to 
 hold otherwise w r ould be to affirm that what a party can not do 
 directly he may do by indirection. 
 
 § 88. Order setting aside an Execution — An order refusing to 
 set aside an execution has been held to be a final judgment 
 from which an appeal may be taken. 2 Where the only issue in 
 the case is as to the right to have an execution issued, the order 
 refusing to direct its issue, or an order directing it to issue, may 
 well be considered a final judgment for the reason that it effec- 
 tually puts an end to the particular case. But if the order were 
 merely incident to other proceedings in the same case, requiring 
 for their complete determination a judgment upon other ques- 
 tions than the right to an execution, the order can not be justly 
 regarded as a final judgment. This must be so for the reason 
 that where the order comes short of adjudicating upon all the 
 issues it is not a final judgment authorizing an appeal. 3 
 
 § 89. Removal of case to Federal Court — Whether an appeal 
 will lie from an order transferring, or refusing to transfer, a 
 case to a Federal Court under the act of Congress is a question 
 upon which there is a diversity of opinion. In the first of our 
 decisions upon the subject it was held that an appeal would not 
 
 1 Klebar v. Town of Corydon, 53 Ind. Gumberts, 3 Eng. (Ark.) 449; Woodruff 
 95. v. Rose, 43 Ala. 3S2; Bray v. Laird, 44 
 
 2 Wright v. Rogers, 26 Ind. 21S; Ala. 295; Wearen v. Smith, So Ky. 216; 
 Scott v. Allen, 1 Texas, 508. Butcher v. Taylor. iS Kan. 558; Abbott 
 
 3 Nat. Bank of Kingwood v. Jarvis, 26 v. Zeigler, 9 Ind. 511; Harrison v. 
 W.Va. 7S5. The principle asserted in the Thurston, 11 Fla. 307; Baldwin v. 
 cases which hold that an order vacat- Wright, 3 Gill. (Md.) 241; Snavely v. 
 ing judgments and admitting parties to Abbott Buggy Co., 36 Kan. 106; Wil- 
 defend are interlocutory support our son v. Shepherd, 15 Neb. 15; Ante. § 
 conclusion. McCulloch v. Dodge, 8 83. In Theirman v. Vahle, 32 Ind. 400. 
 Kan. 476; Brown v, Edgerton, 14 Neb. the doctrine of Abbott v. Zeigler, sup ra, 
 453; Kermeyer v. Kansas, etc., Co., 18 is disapproved, but the later case of 
 Kan. 215; Owen t,-. Going, 7 Col. 85. State v. Miller, 63 Ind. 475. overrules, 
 So, also, do the decisions upon a mo- and correctly, the case of Theirman v. 
 tion to dissolve attachments. Cutter i>. Vahle.
 
 70 APPELLATE PROCEDURE. 
 
 lie, 1 but this case was subsequently overruled. 2 The question 
 is not free from difficulty for the language of the act is impera- 
 tive and seems to leave nothing for the court in which the ap- 
 plication is filed to do, except to send the case to the Federal 
 Court. 3 The Federal Courts, as some of the cases cited show, 
 do, at all events, assert the right to exercise control over the 
 State courts for the protection of the party who petitions for a 
 removal. 
 
 90. Material Issues must be determined — The general rule is 
 that a judgment is not final unless it disposes of all the issues 
 as to all of the parties. If issues are not determined, or if the 
 rights of one or more of the parties are left undecided, there is, 
 in general, no such final judgment as will authorize or warrant 
 an appeal. But the judgment may be final although some act 
 essential to its enforcement may remain to be done. If the 
 judgment settles all rights and all issues its enforcement is a 
 subsequent consideration that will not change its character. 1 
 
 1 City of Aurora v. West, 25 Ind. 148. 
 To a similar effect are the cases of Jack- 
 son v. The Alabama, etc., Co., 5S Miss. 
 648; Jones v. Davenport, 7 Col\v.(Tenn.) 
 145; Stevens v. Phoenix Insurance Co., 
 41 X. Y. 149; Bell v. l)ix. 49 N. Y. 232. 
 
 ■ Burson v. National Park Bank, 40 
 Ind. 173, citing Akerlv v. Vilas, 24 
 Wis. [65; Whiton v. Chicago, etc., Co., 
 25 Wi^. 424; Home Life Ins. Co. v. 
 Dunn. 20 Ohio St. 175; Kanouse v. 
 Martin, 15 How. U. S.) 19S. The de- 
 cision in Burson v. National Park Bank, 
 supra, is supported by the cases of 
 Rosenfield v. Condict, 44 Texas, 464; 
 lli«- Judge, 23 La. Ann. 29; 
 Bryant v. Rich. to6 Mass. 1S0: Crane 
 v. Reeder, 28 Mich. 527; Darst v. Bates, 
 51 III.439; Mahone v. Manchester, in 
 Mass. 72: Hough v. Western, etc., Co., 
 1 Bissell, 425. 
 
 3 Insurance Co. V. Dunn. 19 Wall. 
 214: Green v. Creighton, 23 How. 90; 
 Fashnachl v. Frank. 23 Wall. 416; The 
 Removal Cases, too U. S. 457; Good- 
 
 rich v. Ilunton, 29 La. Ann. 
 
 Erie 
 
 R. R.Co. v. Stringer, 32 Ohio St. 46S; 
 Ellerman v. New Orleans, etc., Co., 2 
 Woods C. C. 120; Insurance Co. v. 
 Morse, 20 Wall. 445; Fisk v. Union, 
 etc., Co., 6 Blatch. 362; French v. Hay, 
 22 Wall. 250. See, generally, Indi- 
 anapolis, etc.. Co. v. Risley, 50 Ind. 60; 
 Union Tel. Co. v. Dickinson, 40 Ind. 
 444; Atlas, etc., Co. v. Byrus, 45 Ind. 
 
 *33- 
 
 * In The St. Louis, etc., Co. v. The 
 Southern Express Co., ioS U. S. 24, it 
 was said by Waite, C. J., that: "As we 
 had occasion to say at the present term 
 in Host wick v. Brinkerhoff, 106 U. S. 
 3. and Grant v. Phoenix Ins. Co., 106 U. 
 S. (29. a decree is final for the purpose 
 of an appeal to this court, when it ter- 
 minates the litigation between the par- 
 ties on the merits and leaves nothing to 
 be done but to enforce by execution 
 what has been determined." It follows 
 from this that if the decree or judgment 
 leaves no question affecting the merits
 
 WHAT MAY BE APPEALED FROM. 
 
 7;; 
 
 An order may sometimes so effectually determine all the issues 
 as to all the parties as to have the effect of a final judgment or 
 decree, 1 but this effect it can not have if it be merely interlocu- 
 tory or intermediate, requiring for its completion and consumma- 
 tion a final decree or judgment putting an end to the litigation 
 in the particular case. 2 If the order is one which settles the 
 controversy as to all of the parties in the particular case, it is 
 final as to that instance although it may not cover the entire 
 subject upon which the issues touch, 3 but, under the familiar 
 rule that what may be litigated under the issues is deemed to 
 have been adjudicated, it will cover all that might properly have 
 been litigated. 4 
 
 §91. Rights of all parties must be Adjudicated — The funda- 
 mental principle is that the case, in all its parts, must be dis- 
 posed of in so far as it is before the court, under the issues, 
 otherwise it will not be regarded as one in which an appeal will 
 lie. 5 This principle, taken in conjunction with the kindred one 
 that the law does not favor the decision of controversies piece- 
 
 open to controversy between any of 
 the parties, it is final in such a sense, at 
 least, as to authorize an appeal. Whether 
 it does settle all equities and all ques- 
 tions of law and fact, is, of course, to be 
 determined from the record in the par- 
 ticular case. The order of the trial 
 court granting an appeal does not de- 
 termine the question of the right to an 
 appeal, as that is a question for the de- 
 cision of the appellate tribunal. Callan 
 V. May, 2 Black, 541 ; Smith v. Tra- 
 bue's Heirs, 9 Pet. 4. 
 
 1 In re Estate Gilbert, 104 N. Y. 200, 
 S. C. 10 N. E. Rep. 148; Vermilye v. 
 Vermilye, 32 Minn. 499, S.C. iS N. W. 
 Rep. 832; Spitley v. Frost, 15 Fed. Rep. 
 299; Dwight v. St. John, 25 N. Y. 203; 
 In re estate of Ten Eyck, 36 Hun. 575; 
 Hobbs v. Beckwith, 6 Ohio St. 252: 
 Maysville, etc., Co. v. Punnett, 15 15. 
 Monr. 47; Eaton v. Ryan, 5 Neb. 47; 
 Rector v. Rotton, 3 Neb. 171. 
 
 2 Eastham v. Sallis, 60 Texas, 576; 
 
 Williamson v. Field, 2 Barb. Ch. 
 2S1; Harris v. Clark, 4 How. Pr. R. 78; 
 Whiting v. Bank, 13 Pet. 6; Bronson v. 
 Railroad Co., 2 Black, 524. 
 
 3 Belt v. Davis, 1 Cal. 134; Weston v. 
 Charlestown, 2 Pet. 449; Klink v. Cus- 
 seta, 30 Ga. 504; United States v. 
 Schooner Peggy, 1 Cranch. 103. 
 
 4 Fischli v. Fischli. 1 Blackf. 360; 
 Wilson v. Buell, 117 Ind. 315, 317, and 
 cases cited; Wright v. Anderson, 117 
 Ind. 349, 354, and cases cited; Lawrence 
 v. Beecher, 116 Ind. 312, 314; Moore v. 
 State, 114 Ind. 414, 421; Center Tp. v. 
 Board, no Ind. 579; Balfe v. Lammers, 
 109 Ind. 347; Bundy V. Cunningham, 
 107 Ind. 360, 363, and cases cited. 
 
 5 McCollum v. Eager, 2 How. (U. S.) 
 61; Craighead :•. Wilson, iS How. (U. 
 S.) 199; Ayres v. Carver, 17 lIow.(U.S.) 
 591, 594; Rutherford :•. Fisher, 4 Dall. 
 22; Young v. Gundy, 6 Cranch, 51; 
 Chateau v. Rice, 1 Minn. 24.
 
 74 AiM'KLLA'i i I DURE. 
 
 meal, requires that the case be effectually and finally disposed 
 of as to all the parties 1 before the court and upon all the ma- 
 terial issues tendered by them for decision. 2 It is, indeed, not 
 legally possible to conceive how there can be more than one 
 final decree or judgment in a single case, so that it must be true 
 that there is only one final judgment or decree from which an 
 appeal will He. 3 Even in the exceptional cases (to be hereafter 
 noticed) in which appeals are allowed from orders or decrees 
 affecting part only of the issues, there is no trenching upon the 
 doctrine that there can only be one final judgment in a single 
 case, for those cases give full recognition to the general rule by 
 assuming the character of acknowledged exceptions. They 
 proceed upon the theory that there are cases in which an appeal 
 will lie from an interlocutory order, not upon the theory that the 
 rulings which may be appealed from are final judgments. 
 
 £ ( J2. Judgment may be final, although an order may be required 
 for its enforcement — The phase of the general subject of the 
 finality of judgments presented by the proposition, that where 
 all the issues are so decided as to terminate the controversy, 
 although acts essential to the enforcement remain to be done, 
 is illustrated by the cases wherein it is held that a decree in 
 partition is conclusive when it settles the main issue, although 
 reports must be made by a commissioner and acted upon by the 
 court. 4 Some of the cases cited carry the doctrine to an extreme 
 length, and it is very doubtful whether they are not opposed by 
 
 1 Watkins v. Mason, n Oregon, 72; 3 State v. Templin, 122 Ind. 235. 
 
 ris v. Mitchell, 33 Tex. 225; Whit- The issues must all he involved in 
 
 aker v. Gee, 6i Tex. 217; Masterson v. every case, and upon all there must 
 
 Williams (Tex.), 11 S. W. Rep. 531; he a final judgment, or the case can 
 
 Schultz v. McLean (Cal.), 18 Pac. Rep. never come to an end. Lonsdale v. 
 
 775; Peck v. Vandenberg, 30 Cal. 11; Brown, 4 Wash. C. C. 148. 
 
 Delcep v. Hunter, 1 Sneed, too; liar- * Fleenor v. Driskill, 97 Ind. 27; 
 
 rison v. Farnsworth, 1 Heisk. 751; Kreitline v. Franz, 106 Ind. 359; Jack- 
 
 nden v. Methodist, etc., Church, son v. Myers, 120 Ind. 504; Ansley 
 
 How. Pr. R. 327. v. Robinson, 16 Ala. 793; Banton v. 
 
 1 University v. The Bank, 92 X. C. Campbell, 2 Dana. 421; Damouth v. 
 
 Low v. Crown Point Mining Co.. Klock, 28 Mich. 163; Beatty v. Beatty 
 
 2 Nev. 75; Perkins v. Fourniquet, 6 (Ky.), 5 S. W. Rep. 771. 
 How.(U. S.) 206; Pulliam v. Christian. 
 6 How. (U. S.) -
 
 WHAT MAY BE APPEALED FROM. 75 
 
 the weight of authority ; one, at least, of the cases cited is in 
 some respects against authority. 1 The decisions of our own 
 court affirm that the decree ordering partition and appointing 
 commissioners is not a final one authorizing an appeal.- The 
 great weight of authority supports this doctrine. 3 
 
 § 93. Decree in Partition Proceedings — It is held in the cases 
 cited in the preceding note, and in other cases, that an appeal 
 will lie from the order confirming the report of the commission- 
 ers and directing a sale of the land because of its indivisi- 
 bility. 4 There is reason for the doctrine that an appeal will lie 
 from an order confirming a report of commissioners appointed 
 under a prior order, for if the judgment should be reversed or 
 modified on appeal, expense would be entailed upon the parties 
 without corresponding benefit. Not only may this reason be 
 assigned, but another reason may also be adduced, and that is 
 this: The sale by the commissioners necessarily follows, and 
 hence is nothing more than the enforcement of a decree by 
 wnxcn the rights of all the parties have been finally adjudicated. 
 But to hold that there maybe an appeal from the order appoint- 
 ing commissioners to make partition, can not be defended upon 
 the grounds suggested, nor, indeed, can it be successfully de- 
 fended upon any ground. 
 
 § 94. Form of Judgment not important — Form is not a matter 
 of much importance in determining whether a judgment is or is 
 not final. If the controversy is ended between the parties so 
 far as the court can end it, then the judgment is final, regardless 
 
 1 Jackson v. Myers, 120 Ind. 504. S. C. 12 S. W. Rep. 558; Tilton v. Vail. 
 
 2 Rennick v. Chandler, 59 Ind. 354; 117 N. Y. 520, S. C. 27, X. E. Rep. 120; 
 Davis v. Davis, 36 Ind. 160; Kern Green v. Fisk, 103 U. S. 51S; Gesell's 
 v. Maginniss, 41 Ind. 39S; Wood v. Appeal, 84 Pa. St. 23S; Templenian 
 Wilkinson, 13 Ind. 352; Clester v. v. Steptoe, 1 Munf. 339; Putnam v. 
 Gibson, 15 Ind. 10; Hunter y. Miller, Lewis. 1 Fla. 455; Hollowav v. Hollo- 
 17 Ind. SS; Cook v. Knickerbocker, 11 way, 103 Mo. 274, 11 S. W. Rep. 233; 
 Ind. 230; Griffin v. Griffin, 10 Ind. 170; Gates v. Salmon, 2S Cal. 320; Mills v. 
 Hunter v. Miller, n Ind. 356. Miller. 2 Neb. 299; Ivory v. Delore, 26 
 
 3 Buller v. Lenzee, 100 Mo. 95, S. C. Mo. 505. 
 
 *3 S. W. Rep. 344; Pipkin v. Allen, 29 4 Benefiel v. Aughe, 93 Ind. 401, 404; 
 Mo. 229; Davie v. Davie. 52 Ark. 224. McFarland v. Hall, 17 Tex. 6j
 
 76 
 
 APPELLATE PROCEDURE. 
 
 of mere matters of form. 1 This must necessarily be true, since 
 if the order terminates the litigation in the court where it is 
 pending, nothing more can there be done, except, perhaps, to 
 prepare for an appeal. It is obvious that under this rule an 
 order dismissing a case over the objection of the plaintiff may 
 constitute a final judgment. 2 But a plaintiff who voluntarily 
 dismisses his action can not appeal. 3 Judgment rendered upon 
 demurrer is final, 1 but, as we have already said, a ruling on 
 demurrer is not a final judgment. A decree may be final, 
 although rendered upon a cross-complaint filed by an interven- 
 ing creditor. 5 
 
 ;j 95. Independent Issues not affecting all Parties — There may 
 be cases, where an entire and distinct issue is formed between 
 some of the parties without affecting other parties or interests, in 
 which an appeal will lie although the decree does not cover the 
 entire subject of the suit. But such cases are rare and the 
 exceptions to the general rule can not be multiplied without 
 mischievous results, hence no case can be regarded as beyond 
 the scope of the general rule unless its peculiarities are so 
 strong and so well marked as to leave little doubt that it is a 
 case of such an unique character that it can not be brought 
 under the general rule without doing injustice. 
 
 1 Zoller v. McDonald, it, Cal. 136; 
 Doubing v. Polack, [8 Cal. 625; Leese 
 v. Sherwood, 2 1 Cal. 164. 
 
 2 English v. Devarro, 5 Blackf. 5SS; 
 Lin- ner, 52 Ind. 195; Koons 
 v. Williamson, 90 [nd. 599; Box v. Ben- 
 nett, 1 H. Blacks, 432; Hartford Fire 
 [ns. C Gi en, 52 Miss. 332; Stoppen- 
 bach v. Zohrlaut, 21 Wis. 385; Borne 
 v. Kansas- City, 51 Mo. (.54; Scriven v. 
 Hursh, [9 Mich. 98; Eddleman y.Mc- 
 Glathery (Tex.), 11 S. W. Rep. 1100; 
 Rodgers v. Russell, 11 Neb. 361, S. C. 
 9 V W. Rep. 547; Murdock v. Martin, 
 1 52 Pa. St. 86, is Atl. Rep. [114. A 
 defendant can not, as a general rule, 
 
 il from a voluntary non-suit suf- 
 
 fered by the plaintiff. Iloldridge V. 
 Marsh. 28 Mo. App. 283. 
 
 3 Wilson v. The /Etna Ins. Co., 3 
 Ind. 557; Vestal v. Burditt, 6 Blackf. 
 555; Kelsey v. Ross, 6 Blackf. 536. 
 
 ' Matter v. Campbell, 71 Ind. 512, 
 distinguishing Slagle v. Bodmer, 5S 
 Ind.465. See. also,Scheiffellin y.Weath- 
 erred, 19 Ore. 172, 23 Pac. Rep. S93. 
 
 5 Central Trust Co. v. Grant Loco- 
 motive Works, 135 U. S. 207. 
 
 6 Trustees v. Greenough, 105 U. S. 
 527: Hinckley V. Oilman. 94 U. S. 407; 
 Williams v. Morgan, in U. S. 6S4; 
 Fosdick v. Schall, 99 U. S. 235; Farm- 
 er's Loan and Trust Co., Petitioner, 
 1 29 U. S. 206, 213.
 
 WHAT MAY BE APPEALED FROM. 77 
 
 § 96. Record must show final Judgment — The record must show 
 a final judgment or the appeal will be dismissed. 1 It" a final 
 judgment was in fact entered and is by a clerical error omitted 
 from the transcript, the omission may, of course, be supplied. 
 Upon a proper application the appellate tribunal would un- 
 doubtedly cause the error to be corrected, but it could not by 
 direct action of its own remedy the defect. Parties may by 
 agreement supply the omission, but they can not by agreement 
 make a final judgment if none, in fact, was rendered. Errors 
 or irregularities may be corrected by agreement, or, by agree- 
 ment waived, but a record can not be made by agreement where 
 there is no foundation for it. 
 
 § 97. Limitation of Appeals to designated classes of cases controls 
 Jurisdiction — The judgment appealed from must be rendered in 
 a case where the amount in controversy or the character of the 
 action or suit is such as to bring it within the statute, for, as a 
 general rule, such a consideration as amount or character is 
 jurisdictional in its nature. 2 Where the statute fixes the amount 
 which must be involved in the controversy to authorize an ap- 
 peal the amount conclusively determines the right of appeal 
 unless the character of the case is such as to make it appealable 
 irrespective of the question of the amount involved. The de- 
 cisions regard the statutory provisions limiting the right of ap- 
 peal to designated classes of cases as creating jurisdictional 
 barriers within which the courts must confine themselves, al- 
 
 1 Wingor. State, 99 Ind. 343; Shroy- N. C. 7; Horicon Shooting Club v. 
 er v. Lawrence, 9 Ind.322. In the case Gorsline, 73 Wis. 196, 41 N.W. Rep. 7^; 
 last named it was said: "In addition to State v. Brown, 44 Ind. 329. It" judg- 
 the objection that there is no final judg- ment has been rendered an appeal will 
 ment it may be assumed that the appel- lie although a finding is not shown. 
 late jurisdiction of this court can, in no Askren v. State, 51 Ind. 592, distinguish- 
 instance, be conferred by the agreement ing State v. Brown, supra. 
 of parties." The final judgment is, 'Informer chapters we have discussed 
 as a general rule, decisive of the the questions arising on the statutory 
 question of the right to appeal, and provisions prescribing the amount which 
 as this right must, ordinarily, ap- must be in controversy to justify an ap- 
 pear from the record, it is essen- peal. See " The Supreme Court," Chap- 
 tial that it show a final disposition of ter III, "The Appellate Court," Chap- 
 the controversy. Logan V. Harris, 90 ter IV.
 
 78 APPELLATE PROCEDURE. 
 
 though the parties make no objections to the court's entertaining 
 
 jurisdiction. 1 
 
 18. Distinct and Independent claims— The amount in contro- 
 versy in the trial court generally controls, 2 and where there is 
 a single indivisible claim there is little difficulty in determining 
 the question of the right to prosecute an appeal, but there are 
 instances where real difficulty may arise. Thus an adminis- 
 trator may be made liable to several parties and the aggregate 
 amount recovered as to him exceed the amount which gives the 
 right of appeal, although as to each of the claimants the amount 
 considered distributively would not be sufficient to authorize an 
 appeal by each claimant. In such a case it would seem that 
 the administrator might appeal from the judgment against him, 
 for the fact that the amount is to be distributed does not lessen 
 the amount recovered against him. 3 Where the claims are 
 entirely separate and distinct and as such rest on different 
 grounds, the rule indicated can not apply. 4 As was said in a 
 former chapter, the claims of different and distinct parties in- 
 volving separate rights can not be so combined as to give juris- 
 diction. Where the aggregate amount is sufficient to authorize 
 
 1 Lord v. Goldberg, 8i Cal.596,22 Pac. Mathews (Mo.), 11 S. W. Rep. 563; 
 
 Rep. 1 126; Bienenfeld v. Fresno Milling Campbell v. Mandeville, no N. Y. 
 
 Co., S2Cal.425, S. C.22 Pac.Rep. 1113; 628, 17 N. E. Rep. 866; Moore v. Boner, 
 
 Crane f. Farmer (Col.), 23 Pac. Rep. 455; 7 Bush. 26; The D. R. Marton, 91 U. 
 
 Aultman, etc., Co. v. Wier, 134 111. 137, S. 365; Josuez v. Conner, 75 N. Y. 156; 
 
 24 N. E. Rep. 771: Guidry v. Garland, Galbreath v. Trump, 83 Ind. 381. See, 
 
 41 La. Ann. 756, S. C. 6 So. Rep. 563; ante, Chapter IV. 
 
 Harrison:'. Moss, 41 La. Ann. 239, 6 So. 3 Saunders v. Waggoner, S2 Va.316; 
 
 Rep. 52S; Clark v. Gresham, 67 Miss. Martin v. Fielder, 82 Va. 455; Scott's 
 
 203, 7 So. Rep. 224; Quimbyv. Hopping Succession, 41 La. 668, S. C. 6 So. Rep. 
 
 (N.J.), 19 Atl. Rep. 123; McCoy v. Me- 792; Cassidy's Succession, 40 La. Ann. 
 
 53 W. Va. 60, 10 S. E. Rep. 19; S27, S. C. 5 So. Rep. j<;2. See, gener- 
 
 New York Elevated R. R. Co. v. Fifth ally, Powers v. Yonkers, 114N. Y. 145, 
 
 Nat. Bank, 11S U. S. 60S. 21 N. E. Rep. 132; Alexander v. Byrd, 
 
 'Knapp v. Deyo, 10S N. Y. 518; 85 Va. 690, 8 S. E. Rep. 577. 
 
 Clark v. Gresham, 67 Miss. 203. 7 So. * Hartook v. Crawford, S5 Va. 413, 7 
 
 Rep. 224; Finch v. 11 art pence, 29 Neb. S. E. Rep. 53S; Thompson v. Adams, 
 
 j; \. W. Rep. 684; Lake Erie, 82 Va. 672. 
 
 Co. v. Faught, 129 111. 257,21 N. 5 McCarty v. Hamaker, 82 Va. 471; 
 
 E. Rep. 620; Buckland v. Shepherd, 77 Harrison v. Moss, 41 La. Ann. 239,8. 
 
 Iowa. 329,42 N. W. Rep. 311; Wolff v. C. 6 So. Rep. 52S; Davis v. Bargas, 41
 
 WHAT MAY BE APPEALED FROM. 
 
 an appeal, the fact that the decree provides for its payment in 
 installments does not preclude an appeal. 1 If the judgments, 
 although in favor of different parties, are bound together as an 
 entirety because of the nature of the cause of action on which 
 they all rest and out of which they grow, as, for instance, where 
 the whole debt is secured by one instrument, the several judg- 
 ments may be combined so as to give a right of appeal.- 
 
 § 99. Appeals of part of a case — Exceptional cases — There is a 
 class of cases which apparently form an exception to the gen- 
 eral rule that an appeal will not lie from part of a case, but the 
 cases forming this class will be found on investigation to be 
 apparent rather than actual exceptions. The class to which 
 we refer is composed of cases wherein an issue, distinct, entire 
 and complete, is formed between some of the parties and upon 
 which issue a final judgment is given affecting only the inter- 
 ests and rights of the parties to that issue. An illustration of 
 the exceptional class of cases under immediate mention is sup- 
 plied by a case wherein it was held by the Supreme Court of 
 the United States that a purchaser of a railroad from a receiver 
 might appeal from a judgment allowing a claim filed against 
 the receiver. 3 So an order authorizing a receiver to borrow 
 money was held to be an order from which an appeal will lie 
 by a person interested as a lienholder, but this is pressing the 
 doctrine to its utmost verge. 4 Orders of a similar general char- 
 acter have been held to be appealable. 5 In cases of the kind 
 
 La. Ann. 313, S. C. 6 So. Rep. 469; Ad- 2 Rodd v. Heartt, 1 7 Wall. 354; The 
 
 amson's Appeal, no Pa. St. 459; Fourth Rio Grande, 19 Wall. 17S. 
 
 National Bank v. Stout, 113 Q. S. 6S4; 3 Louisville, etc., Co. v. Wilson, 13S 
 
 Renn v. Samos, 42 Texas. 104; Terry U. S. 501, 11 Sup. Ct. Rep. 405, dis- 
 
 f. Hatch, 93 I". S.44: Umlaut" v. Urn- tinguishing Central Trust Co. v. Grant 
 
 lauf, 103 111. 651; Zable v. Harris, S2 Locomotive Works, 135 U. S. 207, 10 
 
 K . v - 473- See, generally, Farwell v. Sup. Ct. Rep. 736. See Gibson v. 
 
 Becker, 129 111. 261, 21 X. E. Rep. 792; Schufeldt, 122 U. S. 2j: Philadelphia, 
 
 Langan v. Langan, S3 Cal. 61S, S. C. 23 etc., v. Little, 41 X. J. Eq. 519, S. C. 7 
 
 Pac.Rep. 10S4; Aultman, etc., Co. v. Atl. R. 356. 
 
 Weir, 134 111. 137, 24 X. E. Rep. 771; 4 Matter of Farmers Loan Trust Co. 
 
 Telford v. Garrels, 132 111. 1550, 24 \. Petitioners, .129 U. S. 206. 
 
 E. Rep. 573: Owens v. Branson, 2S 5 Reeder :•. Machen ct al., 57 Md. 50; 
 
 Mo. App. 5S4. Williams v. Morgan, m U. S. 6S4; 
 
 1 State r.Judge. etc., 21 La. Ann. 65. Bradford v. Higgins Neb.). 47 X. W. 
 
 Rep. 749.
 
 80 APPELLATE PROCEDURE. 
 
 indicated each claim is treated as a complete right of action in 
 itself, 1 divisible and distinct from all others. But, after all, 
 the cases constitute, as suggested, an apparent rather than an 
 actual exception to the general rule, for the class is composed 
 of cases where the judgment is final as to the particular issue 
 and the parties to it, and the issue is one which neither affects 
 the main action nor the parties generally. If the issue does 
 affect the main action and does involve the rights of others 
 than the parties to the particular issue, there can be no appeal 
 until there has been a decree or judgment upon all the issues 
 as to all the parties. It is only upon the ground that the issue 
 on which the order is based is entirely isolated from all others 
 and concerns the parties to it, and no others, that the order 
 can be considered final. Where the order does completely put 
 an end to the particular issue and fully settles the controversy 
 as to all the parties affected by it, 2 then it ma}- be considered 
 as a final judgment, otherwise it can not be treated as anything 
 more than a non-appealable interlocutory order. Of course, a 
 statute or a rule of court, where there is power to make such a 
 rule, may give an appeal from an interlocutory order, 3 but our 
 statute confines the right of appeal to the interlocutory orders 
 named. 
 
 .^ 100. Interlocutory Order appointing a Receiver — One of the 
 
 principal exceptions to the general rule that appeals will lie only 
 from final judgments is that in cases where parties seek the ap- 
 pointment of a receiver. The statute expressly provides for an 
 appeal from an order appointing, or refusing to appoint, a re- 
 ceiver. 1 The statutory provisions upon this subject are ex- 
 plicit, and there is little need of extended comment. It maybe 
 said, however, that an appeal may be taken from the order on 
 the petition for a receiver without awaiting the final judgment. 5 
 
 1 Elgin v. Mar-hall, 106 U. S. 578; 6 Dale v. Kent. 58 Ind. 584; Pressley 
 Tupper et a/, v. Wise, no U. S. 398; v. Lamb, 105 Intl. 171. If the appoint- 
 Fourth Nat. Bank v. Stout, 113 U. S. ment of a receiver is properly made as 
 6S4. to the complaining party, the fact that 
 
 2 Ex parte Spencer. 95 N. C. 271. the appointment was erroneous as to 
 
 3 Martin v. Martin. 14 Ore. 165. some other party will not warrant are- 
 * R. S. 1SS1, § 1231. versal. Rapp v. Reehling, 122 Ind. 255.
 
 WHAT MAY BE APPEALED FROM. gi 
 
 Where the appeal is taken directly from the order, it must be 
 perfected within ten days. 1 The time can not be extended by 
 agreement. 2 But while a party may, if he so elects, appeal di- 
 rectly from the order, he is not bound to do so, for he may 
 await the final decree and make available the questions pre- 
 sented by the ruling on the petition. 3 An appeal from the in- 
 terlocutory order does not bring up any other questions except 
 such as are legitimately connected with the granting or refusal 
 of the order. ' It has been held that a refusal to grant an appli- 
 cation for a change of judge presents a question for consider- 
 ation on an appeal from the interlocutory order. 5 Where the 
 appeal is from the order the principal case remains in the trial 
 court, and the pleadings may there be changed or amended,'"' 
 but, of course, such amendments or changes can not affect the 
 questions presented by the record taken up on appeal. 
 
 § 101. Interlocutory Order for payment of money — An appeal 
 will lie from an interlocutory order requiring a part}- to make 
 a specific payment of money." We have somewhat restricted 
 the statutory words in our statement for those words are, " the 
 payment of money," and in thus restricting the language we 
 think we have not erred. If the language employed by the 
 framers of the statute should be given a broad meaning it would 
 bring within its sweep ordinary judgments for money, and it is 
 
 This ruling rests upon the principle Smythe v. Boswell, 117 Ind. 365. In 
 
 that only the party injured by a ruling Hursh v. Hursh, 99 Ind. 500. the order 
 
 can successfully complain of it on ap- was made on the t6th of July and the 
 
 peal. Pattison v. Smith, 93 Ind. 447; appeal was perfected on the 26th, and 
 
 Cool v. The Peters Box, etc., Co., 87 it was held to be in time. 
 
 Ind. 531. See, generally, Hellebush v. 3 Buchanan v. Berkshire Life Ins. 
 
 Blake, 119 Ind. 349. Co., 06 Ind. 510. 
 
 1 Vance v. Schayer, 76 Ind. 194. 4 Main :•. Ginthert, 92 Ind. 1S0: Pouder 
 Prior to the act of 1S75 ' ne decisions v. Tate, 96 Ind. 330; Hursh et al. v. 
 were that an appeal would not lie from Hursh, 99 Ind. 500, 503: Xaylor v. 
 an order appointing a receiver. Wood Sidener, 106 Ind. 179. 
 
 v. Brewer, 9 Ind. 86; Fuller v. Adams, s Shoemaker v. Smith, 74 Ind. 71. 
 12 Ind. 559. Cited in Shoemaker v. Smith, 100 Ind. 
 
 2 Flory v. Wilson, S3 Ind. 391. This 40. 
 
 ruling is in harmony with the general 6 Xaylor v. Sidener, 106 Ind. 1 70, 1S4. 
 doctrine that consent can not give an ap- 7 R. S., § 646, subdivision 1. 
 pellate court jurisdiction of the subject. 
 
 6
 
 vj APPELLATE PROCEDURE. 
 
 evident that such a result was not intended. If a wide effect 
 be ascribed to the statutory provision under consideration it 
 would bring that provision into direct conilict with settled rules 
 and other statutory provisions, and that, it seems clear to us, 
 the legislature did not mean to do. The statute applies to an 
 order to pay money into court on proceedings supplementary 
 to execution. 1 An order to pay money into court made upon 
 the application of a receiver is, as it has been held, within the 
 rule declared by the statute- The class of cases embraced 
 within the scope of the statute under consideration has been 
 characterized as one in which the denial of an appeal is likely 
 to work such hardship that it is the duty of the courts to deal 
 with members of the class with liberality. 3 It is safe to say, at 
 all events, that the provision allowing an appeal is in further- 
 ance of justice, and that it is just to extend its operation by a 
 liberal construction rather than to narrow it by a strict and 
 rigid interpretation. 
 
 § 102. Order directing execution of a written instrument — An 
 
 interlocutory order commanding the execution of "an instru- 
 
 1 McKnighl v. Knisely, 25 Ind.336; quiring the delivery of property to ;i 
 
 Pounds v. Chatham, 96 Ind. 342. In receiver is not appealable in the absence 
 
 tin- case first named it was said: "It is of a statute authorizing appeals from 
 
 contended thai the words ' payment of such orders. Forgaj'w. Conrad, 6 How. 
 
 money' mean the payment from one U. S. 201 ; Grant v. Phoenix Ins. Co., 106 
 
 party to a suit to another, that they do U. S. 429. In view of the fact, brought 
 
 not embrace orders tor the payment of out very prominently in the case lasl 
 
 money into court. This is not a fair mentioned, that the possession of the 
 
 construction "t" the clause under con- receiver is that of the court, ami that 
 
 sideration. This is a remedial statute, he holds money or property to be deliv- 
 
 and musl he liberally construed. The ered upon a final decree to the party 
 
 evils i' .'■ tided to died were thai entitled thereto, it may well he doubted 
 the defendants were often compelled to whether the decision in Cook V. Citi- 
 part with their money under erroneous zens National Hank is sound. For in- 
 interlocutory orders of the common teresting cases defining the right of the 
 pleas and circuil courts and were sub- court to direct the payment of money 
 1 to the inconvenience of having it to one of its officers, see Dillon v. Con- 
 tied up to await the slow process of long necticut, etc., Ins. Co., 44 Md. 3S6; Mc- 
 litigation without the right of appeal Kim v. Thompson, 1 Bland Ch. 150; 
 until after final judgment." Contee v. Dawson, 2 Bland, 264, 269. 
 
 1 Cook V. Citi/ens National Bank, 73 3 Merle v. Andrews, 4 Tex. 200; StO- 
 
 Ind. 256; Coykendall :. Way. 29 Minn, vail v. Bank:-. 10 Wall. 5S3. 
 [62. It has been held that an order re-
 
 WHAT MAY BE APPEALED FROM. 
 
 ment of writing" may be appealed from. 1 The language of 
 the statute is very comprehensive and seems to authorize an 
 appeal in any case where an order is made requiring the e 
 cution of a written instrument, but it is difficult to conceive 
 many cases to which it can apply. The statute creates an ex- 
 ception to the general rule and hence embraces only such a 
 case as bears the essential marks of an exception. The lan- 
 guage employed can not be construed as authorizing an appeal 
 by a party who asks, but fails to secure, an order compelling 
 the execution of a written instrument, for there is no valid rea- 
 son for straining the words beyond their plain meaning. The 
 provision under examination is probably borrowed from the 
 chancery practice which was more liberal in allowing reviews 
 by appellate tribunals than that of the common law. 2 
 
 § 103. Orders requiring Delivery of Property — The statutory 
 
 provision declaring that appeals may be taken from interlocu- 
 tory orders " for the delivery of the possession of real property 
 or the sale thereof," does not appear to have been often in- 
 voked. 3 It has, however, been held to apply to a case wherein 
 an order of sale was made upon the petition of an administrator. 4 
 The provision under immediate mention is broad enough to in- 
 clude all cases where there is an order for the sale of real prop- 
 erty and there seems to be no valid reason for limiting it to a 
 particular class of cases. The decisions which declare that an 
 appeal will lie from an order in a partition suit directing the 
 sale of land might well be rested upon the statutory provision 
 under consideration, for its terms are very comprehensive. 
 
 1 R. S, § 646, subdivision 1. 201; Witbeck v. Chittenden, 50 Mich. 
 
 2 The chancery practice as enforced 426; Maxfield :•. Freeman, 39 Mich. 64. 
 by some of the courts allowed an ap- 3 R. S., § 646. subdivision 2. 
 
 peal from an interlocutory order which * Simpson t'. Pearson, 31 Ind. 1. In 
 effectually disposed of the branch of this rase it was said that the ruling was 
 the case upon which it professed to op- not in conflict with the doctrine 
 erate. Wing v. Warner, 2 Doug, clared in the cases of Staley :■. Dor- 
 (Mich.) 2S8; Lewis v. Campau, 14 11 Ind. 367; Love v. Mikals, 12 Ind. 
 Mich. 458; Kingsbury V. Kingsbury, 20 439: and Berry v. Berry, 22 Ind. 275. 
 Mich. 212; Patterson v. Hopkins, 23 Order for the delivery of personal prop- 
 Mich. 541; Barry v. Briggs, 22 Mich. erty. In re Jones, ^^ Minn. 405.
 
 84 APPELLATE PROCEDURE. 
 
 § 104. Order requiring Assignment of Instruments — An inter- 
 locutor)- order compelling " the delivery or assignment of any 
 securities, evidences of debt, documents or things in action" is 
 one from which an appeal will lie, although it is essentially in- 
 terlocutory. 1 This provision, like the one discussed in the pre- 
 ceding paragraph, is borrowed from the chancery practice. It 
 applies, however, only to cases where the order operates upon 
 a party so as to take from him a substantial right as a party 
 litigant. It does not apply to intermediate orders requiring the 
 production of mere instruments of evidence for use on the trial 
 or for inspection. To give the statute a construction that would 
 make it operate on instruments of evidence, sought to be used 
 as evidence only, would bring it into conflict with the cardinal 
 rule that there is no right of appeal where the order does not af- 
 fect the merits 2 as well as the rule that cases can not be appealed 
 in fragments. An order affecting a matter of evidence may un- 
 questionably affect the merits of a controversy (and so, indeed, 
 do rulings on the pleadings and on motions), but it does not 
 affect the merits in that final and decisive manner which takes 
 from it the character of an intermediate and non-appealable or- 
 der. The authorities declare the rule to be that an order for 
 the production of books or papers for inspection, or for use as an 
 instrument of evidence is not appealable. 3 Confusion of a very 
 mischievous tendency would result from a rule which would 
 allow appeals from orders requiring the production of instru- 
 ments of evidence, for it would lead to appeals in cases where 
 promissory notes, mortgages, receipts or the like are ordered 
 to be produced, and thus make litigation almost interminable. 4 
 
 1 R. S., § 646, .subdivision 1. This sylvania Co.. 132 Pa. St. 403; Lester v. 
 provision does not authorize an appeal Berkowitz. 125 111. 307; S. C. 17 N. E. 
 from an order refusing to approve the Rep. 706. 
 
 rl of an assignee under the volun- 4 It is, no doubt, the duly of a trial 
 tary assignment law. Cravens t\ Cham- court to restrict an order for the pro- 
 bers, 55 Ind. 5. duction of books or documents so that 
 
 2 State t\ Brown, 5 Ore. 119; Wat- only competent parts shall be open to 
 kins v. Mason. 11 Ore. 72. inspection. The failure to limit the 
 
 3 Western Union Telegraph Co. v. order, where there is an appropriate 
 Locke, 107 Ind. 9: Cleveland, etc.. R. and timely request, would unquestion- 
 R. Co. v. Closser, 126 Ind. 34S, 9 Law. ably be error, and if injury resulted 
 Anno. Rep. 754, 761; Logan v. Penn- might be cause for reversal, but such an
 
 WHAT MAY BE APPEALED FROM. 85 
 
 § 105. Orders compelling Execution of Instruments of writing— 
 From an interlocutory order compelling the execution of an 
 instrument of writing an appeal will lie. 1 This provision has 
 seldom been under consideration by the court. It is expressed 
 in sweeping language, but nevertheless it has necessarily a very 
 limited scope, since there are not many cases where an inter- 
 locutory order is entered compelling the execution of a written 
 instrument. Broad as is the language employed it seems that 
 it can not apply to mere formal evidentiary instruments, that is, 
 instruments for use as mere matter of evidence on a trial, for it 
 is evident when reference is made to the chancery practice from 
 which the provision is taken, that only such instruments are 
 meant as require a decree to coerce their execution. A mere 
 instrument of evidence does not need a decree to compel its 
 execution, although it is true that an instrument executed pur- 
 suant to a decree may be used as evidence. It has been held 
 that an appeal will lie from an order directing the execution of 
 a deed, 2 and this is in harmony with the principle just stated. 
 
 § 106. Orders granting or denying Injunctions — An appeal will 
 lie from an order " granting or dissolving, or overruling motions 
 to dissolve, an injunction in term, and granting an injunction in 
 vacation." 3 In giving practical effect to this provision the court 
 has held that there is a difference between a temporary injunc- 
 tion and a restraining order. The difference between a re- 
 straining order and a temporary injunction is that the restrain- 
 ing order is granted for a limited time and that time is held to 
 be such as will enable the complainant to give the defendant 
 notice, while a temporary injunction can only be granted upon 
 notice.' The distinction is important in appellate procedure for 
 
 order, although erroneous, is not one Ind. 391; Ogle v. Dill, 55 Ind. 130. In 
 
 from which an appeal may be prose- Wallace v. McVey, 6 Ind. 300, 303,it was 
 
 cuted. said: "The restraining order contem- 
 
 1 R. S., § 640, subdivision 1. plated by this section is limited in its 
 
 2 Rinehart r.Bowen, 44 Ind. 353. operation, and extends only to such 
 
 3 R. S., $ 646. subdivision 3. reasonable time as may lie necessary to 
 
 4 Flagg v. Sloan, 16 Ind. 432; The notify the opposite party. Temporary 
 Cincinnati, etc., Co. :\ Huncheon, 16 injunctions are usually granted in va- 
 Ind. 430; Applegate?\ Edwards. 45 Ind. cation and in terms they continue in 
 329; Pleasants v. Vevay, etc.. Co.. 42 force until the further order of the
 
 8G 
 
 APPELLATE PROCEDURE. 
 
 the reason that an appeal will not lie from an order granting a 
 temporary restraining order, 1 while an appeal will lie from an 
 order granting or dissolving a temporary injunction- if made in 
 term, although no appeal lies from an order made in vacation 
 denying an injunction. 3 But from an order made in vacation 
 granting a temporary injunction an appeal will lie. 4 It has 
 been held that if a parte does not appeal from an interlocutory 
 order, made in term, overruling a motion to dissolve a temporary 
 restraining order that he can not take advantage of the ruling 
 on appeal, although the ruling may be erroneous, 5 but this doc- 
 trine must, as we suppose, be taken with some qualification, for 
 
 court, which is frequently for several 
 months." See, generally. City of Col- 
 umbus v. The Hydraulic, etc., Co., 33 
 Ind. 435. 
 
 1 See cases cited in note 2; Cincin- 
 nati, etc., Co. v. Huncheon, 16 Ind. 436; 
 Rule v. Gumaer (Colo.), 21 Pac. Rep. 
 905; In re Barret's Appeal (Pa.), 13 Atl. 
 Rep. 72; East, etc., Co. v. Williams, 71 
 Texas, 444, 9 S. W. Rep. 436. See, also. 
 Lid :•. Coleman, 19 Ind. 66; Spaulding 
 Thompson, 12 Ind. 477; Mahncke v. 
 City of Tacoma, 1 Wash. iS, 23 Pac. 
 Rep. 804. In Sheward v. Citizen's 
 Water Co. (Cal.), 27 Pac. Rep. 439. it 
 was held that where a temporary in- 
 junction was -ranted and on final hear- 
 ing made perpetual, that an appeal 
 would lie only from the final decree. 
 The court said, " Upon the entry of the 
 final decree this provisional remedy 
 was merged in the perpetual injunction 
 thereby -ranted to the plaintiff and 
 ed to have any operative effect 
 upon the defendant. 1 1 s functions hav- 
 ing thus terminated, there was thi 
 after no existin granting an in- 
 
 junction from which an appeal could he 
 taken." See, also, Webber v. Wilcox. 
 45 Cal. 301; Lamberl v. Haskeli, So 
 Cal. 611, 22 Pac. Rep. 327: Gard- 
 ner v. Gardner, 87 N. Y. 14; Jackson 
 v. Bunnell, in, N. Y. 216, 220. _m X. 
 
 E. Rep. 79. It is undoubtedly true that 
 when the temporary order is merged in 
 the permanent one, an appeal will not 
 lie from the former. 
 
 2 Michigan, etc. .Co. v. Northern, etc., 
 Co., 3 Ind. 239; Bradley o. Bearss, 4 
 Ind. 186; Bronenberg v. Board, 41 Ind. 
 502. 
 
 3 In the case of Pleasants v. The 
 Vevay, etc., Co., 42 Ind. 391, it was 
 said : " It should be observed that an ap- 
 peal is given from an interlocutory or- 
 der granting or dissolving, or overrul- 
 ing motions to dissolve, an injunction 
 in term. Before an appeal lies there 
 must be either an injunction, granted 
 in term or vacation, or an injunction 
 must be dissolved in term, or a motion 
 to dissolve must be overruled in term. 
 An appeal lies from the refusal of a 
 judge, in vacation, to grant an injunc- 
 tion, or, for dissolving in vacation an 
 injunction, or for overruling in vacation 
 a motion to dissolve. The only case 
 in which an appeal lies to this court, 
 under the third clause of said section, 
 from an order made in vacation, is for 
 granting an injunction." 
 
 * Bronenberg v. Board, 41 Ind. 502. 
 Sei Fisk v. The Patriot, etc., Co.. 54 
 Ind. 479. 481. 
 
 5 Becknell v. Becknell, no Ind. 42, 53.
 
 WHAT MAY BE APPEALED FROM. 37 
 
 if the final decree should den}' an injunction, although other 
 relief might be decreed, it seems clear that the defendant might, 
 upon an appeal from the final judgment, avail himself of the 
 error in overruling the motion to dissolve, provided, of course, 
 that it be made to appear that the error was prejudicial to him. 
 It is difficult to conceive why a party may not avail himself of 
 a ruling awarding the extraordinary writ of injunction in a case 
 where the plaintiff has no right to it. The case is different 
 where the temporary order is made permanent by being carried 
 into a perpetual injunction by the final decree, for in such a 
 case there can be no prejudicial error. 1 To make an error in 
 ruling upon application for an injunction available on appeal 
 the record must affirmatively show the proper motion or plead- 
 ings and due exceptions. 2 An appeal from an interlocutory 
 order in suits for an injunction does not put an end to the entire 
 suit, but simply carries to the appellate tribunal the rulings con- 
 nected with the order. 3 
 
 § 107. Interlocutory orders in Habeas Corpus proceedings — Ap- 
 peals are authorized in cases where interlocutory orders are 
 made in applications for a writ of habeas corpus.* The appeal 
 from an interlocutory order must be taken in term and as pro- 
 vided in the statutory enactment especially applicable to ap- 
 peals from interlocutory orders. 5 If not taken as that enact- 
 ment requires it will be deemed to have been abandoned. 6 But 
 the abandonment of the right to appeal from an interlocutorv 
 order does not preclude an appeal, under the general provis- 
 
 1 Board of Commissioners v . Markle, * R. S., § 646, subdivision 4; Speer v. 
 46 Ind. 96, 99; Heagy v. Black, 90 Ind. Davis, 38 Ind. 271. 
 
 534- 5 R. S., k 647- 
 
 2 Clark v. Shaw, 101 Ind. 563; Heagj 6 The State v. Banks, 25 Ind. 491;. 
 v. Black, 90 Ind. 534; Slagle v. Bod- In this case it was said: "The ap- 
 mer, 58 Ind. 465; Newell v. Gatling, 7 peal prayed was evidently abandoned 
 Ind. 147. See, generally, State v. Chase, by a failure to file the record within the 
 41 Ind. 356. time limited by statute. If the appeal 
 
 3 Rayle v. The Indianapolis, etc., Co., can be sustained, it must be on the 
 40 Ind. 347. citing Thompson v. Adams, ground that it might be taken in vaca- 
 2 Ind. 151; Gray v. Baldwin, S Blackf. tion, at any time within three years af- 
 l( M- ter the rendition of the judgment, in the 
 
 circuit court."
 
 gg APPELLATE PROCEDURE. 
 
 ions of the statute, from the final judgment pronounced in the 
 case. 1 Although an appeal will lie from a final judgment in a 
 case of an application for a writ of habeas corpus, the proceed- 
 ing is not an ordinary civil action, but is strictly a special pro- 
 ceeding under the statute. 2 Appeals in cases of habeas corpus 
 must be taken to the Supreme Court. Submission on appeal 
 may be made, on motion, at any time after the appeal is per- 
 fected, provided notice has been given to the adverse party or 
 his attorney. Three days' notice of the motion is required and 
 the notice may be served by the sheriff or by any other person, 
 or, there may be an acknowledgment of service. Proof of 
 service must be filed with the clerk. Submission may also be 
 made on call or by agreement. 3 
 
 § 108. Effect of Appeal from an Interlocutory Order — It is evi- 
 dent that the system of procedure created by the statute regu- 
 lating appeals from interlocutory orders is a peculiar one, and 
 that the ordinary rules governing appeals generally do not 
 fully apply. The decisions upon the subject of appeals from 
 interlocutory orders made upon applications for the appoint- 
 ment of receivers lay down a principle that must apply gener- 
 ally, at least, to all appeals from the interlocutory orders we 
 have been considering, and that principle, stated in a rough 
 
 'Nichols v. Cornelius, 7 Ind. 611; will not be fatal. McGrewv. McCarty, 
 
 Henson v. Walts. 40 Ind. 170. 78 Ind. 496. A jury trial is not de- 
 
 1 Baker v. Gordon, 23 Ind. 204: Gar- mandable. Orr v. Miller, qS Ind. 436. 
 
 ner v. Gordon. 41 Ind. 92. The suf- A writ of habeas corpus does not per- 
 
 ficiency 01" the petition must he ques- form the functions of an appeal or of a 
 
 tioned by a motion to quash the writ, hill of review, mere errors can not be 
 
 Milligan v. The State, 97 Ind. 355; corrected by it. Smith v. Hess, 91 Ind. 
 
 Willis v. Bayles, 105 Ind. 363. What 424; Lowery v. Howard, 103 Ind. 440; 
 
 the petition should show. In re Cuddy, Lucas v. Hawkins, 102 Ind. 64; Ex 
 
 131 I -parte Walpole, 84 parte Spencer, S3 Cal. 460, 23 Pac 
 
 Cal. 584, J 1 Pac. Rep. 308. A re- Rep. 395; Ex parte Millett, 37 Mo. 
 
 turn I <rpus must he A pp. 76; Davis v. Beason, 133 U. S. 
 
 challenged by an exception and not by ^3; Wright v. Wright, 74 Wis. 439, 
 
 a demurrer. Sturgeon v. Gray, 96 Ind. 43 N. W. Rep. 145. A return good 
 
 Ind. 32S; Mc- upon one ground will prevail against 
 
 lan -. Margowski, 90 Ind. 150; a general exception. Brooke v. Logan. 
 
 Cunningham v. Thomas, 25 Ind. 171. 112 Ind. 1S3. 
 
 But an irregularity in the procedure 3 Supreme Court Rule XIX. 
 which does not work substantial injury
 
 WHAT MAY BE APPEALED FROM. 89 
 
 way, is, that only such questions are brought before the appellate 
 tribunal as are connected with the interlocutor}' order appealed 
 from, or, as it has been expressed, "such matters as lead up to 
 the order." The statute certainly does not contemplate a de- 
 cision upon the entire case where there is nothing more than an 
 appeal from an interlocutory order ; it is, indeed, impossible to 
 conceive how it can be within the power of parties to invoke a 
 decision upon an entire controversy where only a part of it is 
 brought before the appellate tribunal. 1 There may be cases 
 where a ruling on an interlocutory order can not be understood 
 or disposed of without considering the complaint and determin- 
 ing its sufficiencv, since the complaint may so far involve the 
 ruling in the order as to require a decision upon it, 2 but ordi- 
 narily the only question affecting the sufficiency of the complaint 
 that can be considered on an appeal from an interlocutory order 
 is such as is directly involved in the order and necessary to a 
 judgment upon it. 
 
 § 109. Mode of Appealing from Interlocutory Orders — Appeals 
 from the interlocutory orders made appealable by statute must 
 be taken as the statute especially applicable to such cases pro- 
 vides. 3 A bond must be filed and the appeal must be taken at 
 the term at which the order is made, if made in term time, but 
 if not made in term time, then, at the time it is made or during 
 the next term. 4 The right to appeal from interlocutory orders 
 is, as appears from what has been said, a peculiar one, and 
 governed by special rules. 5 We have seen, in discussing the 
 rule governing appeals in receivership cases, that there is a 
 
 1 In Berry v. Gravel, n Iowa, 135, and can not be considered as authorita- 
 
 the court said, in speaking of an appeal tive under such a statute as ours, 
 
 from an interlocutor}' order, that, "such 2 Learmotth v. Veeder, 11 Wis. 138; 
 
 an appeal does not bring up the main Lyon v. Blossom. 4 Duer (N. Y.), 31S. 
 
 case for review here, except so far as 3 R. S. 1SS1, § 647. 
 
 material to the understanding and dis- * Simpson v. Pearson, 31 Ind. 1; 
 
 position of that from which the party Baker v. Griffitt, S3 Ind. 411, 415. 
 
 appeals." The case from which we 5 In Wood v. Brewer, 9 Ind. S6. it 
 
 have quoted holds that an appeal will was said: "An appeal does not lie 
 
 lie from an interlocutory order dissolv- from an interlocutory order, except by 
 
 ing an attachment, but the ruling on statute." 
 that point is based on a peculiar statute
 
 90 APPELLATE PROCEDURE. 
 
 marked peculiarity which distinguishes such cases from appeals 
 in ordinary civil actions, and what is true of such cases is, in 
 principle, substantially true of all appeals from interlocutory 
 orders. 
 
 § 110. Void Judgments — Appeals from — An appeal will lie from 
 a void judgment. 1 There is solid reason for this rule inasmuch 
 as it enables a party injured by such a judgment to remove it 
 from the record without injury to the rights of adverse parties, 
 for they can have no rights under a judgment which has no 
 force. It is a sacrifice of substance to a barren technicality to 
 hold, as some of the courts do, that no relief can be had against 
 a void judgment. Our court has, whenever the question has 
 been presented, refused to enforce any such a rule, and has 
 granted relief, although the proceeding was a nullity. 2 
 
 1 Louisville, etc., Co. v. Lockridge, 93 lenger v. Todd, 5 Oregon, 36; Smith v. 
 
 Ind. 191; Board of Com. v. Logansport, Ellendale Mill Co., 4 Oregon, 70; Cof- 
 
 etc, Co., 88 End. [99; Cain v . Goda, 84 fey v. Wilson, 2 Ala. 701; Evans v. 
 
 Ind. 209; Dyer v. Board, S4 Ind. 542; Adams, 3 Green, L. (N.J. ), 373; People 
 
 Shoultz v. MiPheeters, 79 Ind. 373, 379; :•. Ferris, 35 N. Y. 125. 
 Brown v. Goble, 97 Ind. 86; Shoemaker 2 Leary v. Dyson, 98 Ind. 317; Bishop 
 
 :. Board, 36 Ind. 175. Other courts v. Moorman, 9S Ind. 1. 
 have asserted the same doctrine. Trul-
 
 CHAPTER VI. 
 
 THE TIME WITHIN WHICH AN APPEAL MAY BE TAKEN. 
 
 § in. Limitation of time is jurisdic- 
 tional. 
 
 112. Time can not be enlarged. 
 
 113. Cases regarded as exceptions — 
 
 Peculiar features of. 
 
 114. Time not extended to the party 
 
 in fault. 
 
 115. Diligence exacted. 
 
 116. Petition for leave to appeal after 
 
 the expiration of the time lim- 
 ited. 
 
 117. Rule where the delay is caused 
 
 by the act of the court. 
 
 118. When the time begins to run. 
 
 119. Final judgment and entry— Time 
 
 begins to run from. 
 
 120. Independent actions. 
 
 121. When the right of appeal ma- 
 
 tures. 
 
 § 122. Computation of time — The be- 
 ginning. 
 
 123. Collateral and independent mat- 
 
 ters. 
 
 124. How the date of the final judg- 
 
 ment is ascertained. 
 
 125. Day the judgment is entered 
 
 excluded. 
 
 126. The meaning of the words 
 
 months and years. 
 
 127. Non-judicial days. 
 
 12S. The appeal must be fully per- 
 fected within the time pre- 
 scribed. 
 
 129. Bar, by limitation, of part of the 
 
 appellants. 
 
 130. Parties under disabilities. 
 
 §111. Limitation of Time is Jurisdictional — The time within 
 which an appeal must be taken is fixed by law and the appeal 
 must be taken within the time designated. 1 The provision 
 which limits the time is jurisdictional in its nature. 2 As the 
 
 1 Bornheimer v. Baldwin, 42 Cal. 27; 
 McCourtney v. Fortune, 42 Cal. 3S7; 
 Bishop v. The Empire, etc., Co., 1 T- & 
 S. (N. Y.) 17; Untereiner v. Miller, 29 
 La. Ann. 435; Davis v. Vaughan, 7 
 Rich. (S.C.) 342: Lavelle v. Skelly. 24 
 Hun. 642; Jarvis v. Hamilton, 37 Wis. 
 87: Badger v. Daniel, S2 N. C. 46S; 
 Moore v. Ellis, iS Mich. 77; White v. 
 Gilbert, 10 Neb. 539; Clapp v. Hawley, 
 97 N. Y.610; United States v. Curry. 
 6 How. U. S. 106; Dowell v. Caruthers, 
 26 Kan. 720; Randolph v. Mauck, 7S 
 
 Mo. 468; Zeckendorf 7'. Zeckendorf. 1 
 Ariz. 401; Joyce v. Dickey, 104 Ind. 
 1S3; Day v. City of Huntington. 7S 
 Ind. 280: McLaughlin v. State. 66 Ind. 
 193; Hoston v. Ducker, 86 Ky. 123. 
 
 2 Cherry Tp. v. Marion Tp., 96 Pa. 
 St. 528; Mason v. Gibson, 13 111. App. 
 463; Clutter v. Riddle, 124 Ind. 500, 
 2^ N. E. Rep. 6; Starke v. Jenkins. 1 
 Wash. Ter. 421; Westmoreland Count v 
 v. Conemaugh Tp.. 34 Pa. St. 231 ; Hoag 
 t>. Alleghany City. 21 Pitts. Law Jour- 
 nal, 46: Wait v. Yan Allen, 22 N. Y. 
 
 (91)
 
 92 
 
 APPELLATE PROCEDIRK. 
 
 time within which an appeal must be taken is jurisdictional it 
 results that the court can not ordinarily enlarge the time nor 
 can the parties extend it by agreement. 1 The familiar rule that 
 consent can not confer jurisdiction precludes the parties from 
 extending the time, and as the time within which an appeal 
 must be taken is a matter to be fixed and regulated by the law- 
 making power, the courts can not enlarge it. There is a clear 
 distinction between cases where the question is as to the right 
 to entertain jurisdiction of the person and cases where the party 
 fails to bring his appeal to the appellate tribunal within the time 
 fixed by law. In the one case the party may voluntarily sub- 
 mit to the jurisdiction of the court, but in the other he can not 
 create jurisdiction where the law does not provide for it, or has 
 otherwise provided. 2 
 
 § 112. Time can not be enlarged — The rule that the court can 
 
 319; MacLachlan v. McLaughlin, 126 
 111. 427. [8 X. E. Rep. 544. In the case 
 of Rose v. Tyrrell, 25 Wis. 563, it was 
 held that a statute extending the time 
 in a particular case was unconstitution- 
 al. See, also, Men weather v. Whitley, 
 3S Texas, 525. 
 
 1 Flory v. Wilson, 83 Ind. 391; Bun- 
 tin v. Hooper, 59 I ml. 589; Day v. City 
 i.t' Huntington, 78 Ind. 2S0; Joyce v. 
 Dickey, 104 Ind. 183; Verges v. Roush, 
 1 N\l). 113; Patterson v. Woodland, 28 
 Nth. 250, 44 N. W. Rep. 112; Cogswell 
 v. Hogan, 1 Wash. 4, 23 Pac. Rep. 835. 
 See, generally, Douglass v. Neguelona, 
 I enn. 769, 14 S. W. Rep. 283: Cal- 
 lahan v. Portland, etc., Co., 17 Ore. 
 1 Pac. Rep. S70; Walsh v. The 
 id States, 23 Ct. of CI. 1; Radford 
 1, 131 U. S. 392; Herrick v. 
 Racine, etc., Co., (.3 Wis. 93. In the 
 • if Holloran v. The Midland Rail- 
 way Co. rind.). 2S N. E. Rep. 549, the 
 doctrine stated in the text is explicitly 
 affirmed. It is also impliedly asserted 
 in the cases declaring that time is ju- 
 risdictional where appeals are taken un- 
 der the special statute governing ap- 
 
 peals in matters affecting decedents' 
 estnies. Simons v. Simons, 28 N. E. Rep. 
 702, and cases cited. See, also, the cases 
 cited in the chapter which treats of ap- 
 peals in cases affecting the estates of 
 decedents. Post, Chapter XIV. 
 
 2 In the case of Caallot -'. Deetken, 113 
 U. S. 213, it was said: " It has been re- 
 peatedly decided by this court that 
 where no return has been made to a 
 writ of error by filing the transcript or 
 the record here, either before or during 
 the term of the court next succeeding 
 the filing of the writ in the circuit court, 
 this court has acquired no jurisdiction 
 of the case, and the writ having then 
 expired, can acquire none under that 
 writ and it must therefore be dismissed." 
 Yillabolos v. The United States, 6 
 1 low. 81; Castro v. The United States, 
 3 Wall. 46; Mussina v. Cavazos, 6 
 Wall. 355, 35S; Murdock v. Memphis, 
 20 Wall. 590, 624. If the question of 
 time affects the jurisdiction of the case 
 and not merely jurisdiction of the per- 
 son, then, there can be no doubt that 
 our cases are right in holding that the 
 time can not be extended by agreement.
 
 WHEN APPEAL MAY BE TAKEN. 93 
 
 not enlarge the time for taking an appeal must be regarded as 
 established, 1 but the court may, nevertheless, relieve a party in 
 the proper case against fraud or accident. 2 In relieving a 
 party against fraud or accident the court does not extend the 
 time for taking the appeal by breaking down the provisions of 
 the statute limiting the time within which appeals must be taken. 
 The principle applied is a familiar one, for it is very often ap- 
 plied to the statute of frauds and to the general statute of limit- 
 ations. The fraud of a party will prevent him from taking ad- 
 vantage of either of the statutes named, and so it will in cases 
 where the statute limits the time for taking appeals. Our own 
 court has given recognition to the doctrine that relief will be 
 granted where the appeal is prevented by the fraud of the ad- 
 verse party. 3 The general principle is asserted and enforced 
 by other courts. 4 Where the facts are such that the court, upon 
 their proper presentation, would enlarge the time, it is compe- 
 tent for the parties to extend it by agreement, but if there are 
 no such facts, the time can not be extended by the agreement 
 of the parties. 5 
 
 § 113. Cases regarded as Exceptions, peculiar features of— The 
 
 cases in which an appeal will be allowed after the expiration of 
 the time fixed by the statute are exceptional ones, and their 
 distinguishing features are the equitable elements which enter 
 
 1 It may not be improper to say that jurisdiction, but they hold that fraud 
 power to extend the time for appealing may prevent the operation of the stat- 
 in matters affecting decedents' estates ute. 
 
 is expressly conferred by law. * Dobson v. Dobson,7 Neb. 296; Fox 
 
 2 We mean the word accident to carry v. Fields, 12 Heisk. '(Tenn.) 31; United 
 the signification attached to it by the Lines Tel. Co. v. Stevens, 67 Md. 156; 
 courts of chancery; we do not mean Lake v. Halbert, 2 Dall 41; Chaffee 
 to be understood as intimating that re- v. Mcintosh, 36 La. Ann. S24; Mc- 
 lief will be awarded in cases of ordinary Ihhaney v. Holland, 1 1 1 Pa. St. 634; Mil- 
 accidents, or in cases where" there is ler v. Camp, 28 Neb. 412, 44N. W. Rep. 
 lack of diligence, or in cases where any 486; Moyer v. Strahl, 10 Wis. 83; Crad- 
 culpable fault or negligence is attribut- dick v. Pritchett, Peck (Tenn.), 17; 
 able to the appellant. Holt v. Edmondson, 31 Ga. 357; Cong- 
 
 3 Smythe v. Boswell, 117 Ind. 365; don v. Congdon, 59 Vt. 597, S. C. 10 
 Boswell v. Boswell, 117 Ind. 599. These Atl. Rep. 732. 
 
 cases recognize the rule that if the ap- 5 Climie v. Odell. 20 Mich. 12. See 
 peal is not taken in time, there is no Fairchild v. Daten, 38 Cal. 286.
 
 ! 1 APPELLATE PROCEDURE. 
 
 into them. Without the presence of these elements the time 
 fixed by the statute can not be extended. These controlling 
 elements must be shown clearly and strongly or the statute will 
 be enforced as it is written, for the rule is firmly settled that a 
 party who seeks to escape the provisions of the statute must 
 have a very strong and clear case. 
 
 § 114. Time not extended to the Party in Fault— If the appel- 
 lants fault has prevented an appeal within the time allowed by 
 law, the court can not aid him, for the court can only interfere 
 where the principles of equity authorize the interference, and 
 where the failure was due entirely to causes which the party 
 could not control. 1 A mistake as to matter of law will not be a 
 sufficient excuse. 2 The decisions declare that there is a differ- 
 ence between the rules of the court and the provisions of a 
 statute, and that the provisions of a mandatory statute can not 
 be relaxed. 3 
 
 § 115. Diligence exacted — The appellant who seeks to secure 
 an appeal after the statutory time has expired asks extraordinary 
 relief, and he must act with diligence and do promptly and com- 
 pletely what he can to prevent further delay ; if he does not, his 
 remissness will deprive him of an appeal, although if he had 
 proceeded more diligently he might have avoided the effect of 
 the first delay. It is necessary for him to file the transcript in 
 the appellate tribunal and with it a verified petition 4 showing 
 the facts on which he relies as excusing his failure to appeal 
 within the time designated by the statute. The transcript, to- 
 gether with the assignment of errors, should be filed with the 
 petition or before its filing, because this is essential to the au- 
 
 1 Contee v. Pratt. 9 Md. 67; Lin- Rivers, 20 New 159, 18 Pa. Rep. 753; 
 coin, etc., Works v. I Iall. -7 Neb. 874,44 Short v. Sparrow, 96 X. C. 34S, S. C. 2 
 N. W.Rep.45. See Chase v. Bates, 81 S. E. Rep. 233. 
 
 Me. is.-, s. C. [6 Atl. Rep. 542; Jack- 3 Yturbide :■. United States. 22 How. 
 
 1 iddard, 1 Mass. 230. (U. S.) 290; Doolin<* v. Moore, 20 Cal. 
 
 2 Ilikv v. Thompson, t,2 So. Car. 5S2; 141; Van Steemvyck v. Miller, iS Wis. 
 Calvo v. Railroad (So. Car.), 10 S. E. 320; Smith v. State, 4S Ark. 148, 2 
 Rep. 389. See Wallace v. Carter, 32 So. S. W. Rep. 661. 
 
 Car. 314. 9 S. E. Rep. 659; Burbank v. 4 Jackson v. Goddard, 1 Mass. 230.
 
 WHEN APPEAL MAY BE TAKEN, 
 
 95 
 
 thority of the appellate tribunal, 1 and because it is proper that 
 the appellant should in this mode manifest his purpose and 
 ability to proceed promptly. 2 Notice should be given the ad- 
 verse party, for he is under no duty to take heed of any pro- 
 ceedings of which he is not duly notified. 3 There may, of course, 
 be cases where the transcript can not be filed with the petition, 
 as, for instance, where the clerk refuses to prepare one, but, un- 
 less some excuse is shown, the transcript together with the as- 
 signment of errors should be filed before or at the time the 
 petition is filed. 
 
 § 116. Petition for leave to Appeal after the expiration of the 
 Time limited— A petition for leave to appeal after the expiration 
 of the time fixed by law, must as we have indicated, present a 
 clear and strong case. 4 The requisites of such a petition make 
 it necessary that it should be drawn with care, for it can not be 
 aided by intendment. It ought to show substantial merit in the 
 appeal, and, to do this, must show the nature of the questions 
 involved. It will not be sufficient to refer generally to the 
 transcript, for the petition must be good on its face. The facts 
 constituting the excuse for the failure to appeal within the time 
 fixed by statute must be specifically and certainly pleaded ; it 
 will not be sufficient to plead mere' conclusions or to plead by 
 way of recital. Clear, direct and positive statements of facts 
 are required. 
 
 1 The transcript is essential because money in cases of specific performance 
 appellate tribunals decide appeals upon and the like. 
 
 the record, and where there is no rec- s The proceeding to secure an appeal 
 
 ord there can, as a general rule, be no after the time limited is essentially an 
 
 appellate jurisdiction. original one. See antt\ § 112, n. 
 
 2 The published decisions do not cover 4 This is so because the party who 
 this point so far as we can find, but it asks such relief must make a case 
 has long been the practice to require which calls into exercise the inherent 
 the filing of the transcript and assign- equity power of the court, and to do 
 ment of errors before entertaining any this successfully he must make such a 
 petition for injunction, mandate or leave showing as creates a case in the nature 
 to appeal. The principle which justi- of an original suit. It must, as to all 
 fies this practice is analogous to that matters alleged by way of excusing the 
 which requires a tender of a deed or failure to perfect the appeal in time, be 
 
 an original auxiliary proceeding.
 
 9ij APPELLATE PROCEDURE. 
 
 § 117. Rule where the delay is caused by the act of the Court — 
 It is said in general terms by the authorities to which we have 
 referred, and by many more, that the time for taking an appeal 
 can not be extended by agreement or by order of the court. 1 
 but, as we have shown, this rule, general and firmly settled as 
 it is, does not always preclude an appeal and to the instances 
 upon which it does not fully operate we add another of a dif- 
 ferent nature. Where the time is lost without the fault of the 
 party and solely by reason of the action or non-action of the 
 court, the statute does not operate because the loss of time is 
 not attributable to the acts of the parties. The rule that the 
 delay or wrong of the court shall not prejudice a party, rests 
 upon the maxim, "An act of the court shall prejudice no man." 2 
 Where, however, the fault of the party concurs with that of the 
 court the maxim will not prevail to save an appeal not taken 
 within the time fixed by law. 3 
 
 § 118. When the Time begins to run — The general rule is that 
 there must be an entry of judgment before an appeal can be 
 taken, and it must follow that until the judgment is entered the 
 time within which an appeal must be taken does not begin to 
 run. As an appeal taken before an entry of judgment is pre- 
 mature, it may be dismissed on motion. There is some con- 
 flict in the adjudged cases, but the decided weight of authority 
 supports the rule we have stated. 4 It seems clear upon prin- 
 
 1 Salles v. Butler, 27 N.Y.638; Clapp * Providence, etc., Co. v. Goodyear, 6 
 
 -. Hawley,97 N. Y.610; Miller t/. Shall, Wall. 153; Milwaukee, etc.,Co.r.Pabst, 
 
 67 Barb. 146; Morrison v. Morrison, 16 A4 Wis. 244; Kimple v. Conway, 69 Cal, 
 
 Hun. 507, 511; Fry v. Bennett, 16 How. 71; Schroder v. Schmidt, 7] Cal 
 
 Pr. 385; People p.Eldridge, 7 How. Pr. Thomas v. Anderson, 55 Cal. 43; Valle 
 
 Bryant v. Bryant, 4 Abbott's Pr. v. Harrison, 93 U. S. 23$; Polleys 
 
 N. S v. Black River, etc., Co., 113 U. S. 81; 
 
 1 Brooms Legal Maxims (8 Am. Ed. . Radford v. Folsom, 123 I". S. 725; Ex- 
 
 121. The author cites many English lev v. Berryhill, 36 Minn. 117. 30 N. 
 
 showing the operation and orce W. Rep. 439. See, generally, In re 
 
 of the maxim, and to them may be Fifteenth A\.. 54 Cal. 179; McLaugh- 
 
 added the following American eases: lin V. Doherty, 54 Cal. 519; First Nat. 
 
 [y v. Watson, 64 N. II. 162, 9 Atl. Bank v. Gary, \.\ So. Car. 571; Black 
 
 Rep. 794, 817; Doe v. Parker, 3 Sm. & v. Peters. 64 Ga. 628; Savings, etc., Co. 
 
 M., 114; Tucker v. Gordon, 7 How. v. Morton, 63 Cal. 310; Fehring v. 
 
 (Mi Swineford, 33 Wis. 550; Johannes v. 
 
 3 Freeman v. Tranah, 12 C. B. 406. Young, 42 Wis. 401.
 
 WHEN APPEAL MAY BE TAKEN. 97 
 
 ciple that the rule stated must be the correct one, for until there 
 is an entry of judgment there is no authentic record evidence 
 of a final disposition of the case, and that there is a final judg- 
 ment must, as a general rule, appear from the record. It has, 
 however, been held that where the entry is of the wrong date, 
 and it is subsequently corrected by nunc -pro tunc entry so as to 
 make the record show the true date, the time for appealing runs 
 from that date. 1 But this doctrine is one to be cautiously ap- 
 plied, if, indeed, it can be defended at all, for the adverse party, 
 who is without fault and is misled by an entry, ought not be de- 
 prived of his right of appeal by changing the date of the judg- 
 ment. If he has full knowledge of the facts and is aware of the 
 true date, and of the mistake in the entry, then it is probable 
 that he is in no situation to complain, but if he is free from fault 
 or negligence and is misled by the entry that was originally 
 made he ought not to be made to suffer. 2 
 
 § 119. Final judgment and entry — Time commences to run from — 
 
 The right to appeal, as a general rule, dates from the time that 
 a complete judgment is rendered and recorded. 3 This rule is 
 the true one since as long as there is no final judgment it is 
 within the power of the trial court to change its rulings, and as 
 long as this power exists the case must be within the jurisdiction 
 of the lower court. A case can, as a general rule, only pass 
 from the jurisdiction of the court of original jurisdiction by a 
 final judgment. It seems to necessarily follow that where a 
 motion in arrest, or for a venire dc novo, or for a new trial re- 
 mains undisposed of there is no right of appeal, since, as will be 
 
 1 Anderson v. Mitchell, 58 Ind. 592; States v. Gomez, 1 Wall. 690; Winters 
 Gray v. Palmer, 28 Cal. 416; Genella v. Ethell, 132 U. S. 207; Richardson 
 v. Relvea, 32 Cal. 159. v. Rogers, 37 Minn. 461, 35 N. W. 
 
 2 In Coon T'.Grand Lodge, 76 Cal. 354, Rep. 270. In Camblos v. Butterfield, 
 iSPac.Rep.3S4,it was held that the right 15 Abbott Pr. R. (N. S.) 197, it was 
 to appeal does not mature until the held that where the judgment com- 
 judgment is entered, and that a nunc pletefy ends the litigation he must ap- 
 fro tunc entry fixing the date prior to peal from that judgment within the 
 the appeal does not change the rule, time prescribed without waiting for the 
 See Credit Co. v. Arkansas, etc., Co., ultimate judgment. It mav well be 
 128 U. S. 258. doubted whether this doctrine can have 
 
 3 State v. Burns, 66 Mo. 227; United a general application. 
 
 7
 
 98 
 
 AIT! I.I. A I E PROCEDURE. 
 
 hereafter shown, two courts can not have jurisdiction of the same 
 case at the same time, 1 save in very rare instances. It is in 
 accordance with this doctrine that it is held that where the court 
 decides to reconsider its judgment the right of appeal dates 
 from the ultimate judgment, 2 and the same rule applies where 
 there is an amended decree. 3 Upon the same principle it has 
 been held by our own court, 1 and by other courts, 5 that where 
 there is a pending motion for a new trial the right of appeal 
 does not mature until there is a ruling denying the motion. 
 
 § 120. Independent actions — It is to be remembered that a 
 complaint for a new trial filed after the term is an independent 
 proceeding, 6 and hence what is said in the preceding paragraph 
 can have no application to such a case. It can not, indeed, 
 apply to cases, whatever their nature, in which the motion is a 
 purely collateral one, or one introducing new elements into the 
 case. The reason for the rule fails in such cases as those indi- 
 cated, inasmuch as the judgment in the cases falling under the 
 rule disposes of all the matters before the court at the time it was 
 
 1 See " Effect of the Appeal." 
 
 2 First Nat. Bank v. Briggs, 34 Minn. 
 266. A similar doctrine was asserted in 
 Bowers v. M'Nutt, 5 Blackf. 231. 
 
 3 United States :•. Gomez, 1 Wall. 690, 
 699. In Owen-, v. Crossett, 104 III.46S, 
 it was held that where a judgment was 
 pronounced in vacation the right of ap- 
 peal accrued at the next ensuing term. 
 
 * New York, etc., Co. v. Doane, 105 
 End. 92; Colchen v. Ninde, 120 Ind.SS, 
 90. In the first of the cases cited it was 
 said: "A motion for a new trial is not 
 a collateral one, but is one directly 
 connected with the judgment, and is 
 essential to present tor review errors 
 occurring in the trial, and so long as 
 it remains undisposed of there can be 
 no final judgment within the meaning 
 of the statute regulating appeals. A 
 pending motion tor a new trial keeps 
 the cause in the trial court, provided, 
 of course, that the motion was reason- 
 ably filed." 
 
 5 Webster v. Spindler, 36 Mo. App. 
 355; Phillippi v. McLean, 5 Mo. App. 
 580; Hoggs v. Caldwell County, 28 Mo. 
 586; Railroad Co. v. Bradleys, 7 Wall. 
 575; Doss v. Tyack, 14 How. 297, 
 Wheeler v. Harris, 13 Wall. 51. In 
 Murdock v. District of Columbia, 23 
 Ct. of CI. 41, it was said, speaking of a 
 motion for a new trial, that, " This mo- 
 tion, by the general rules of law on 
 the subject, undoubtedly suspended the 
 finality of the judgment, leaving the 
 same in the control of the court to de- 
 termine whether it should be disturbed 
 or should stand, and it suspended the 
 obligation as to the time within which 
 to file an appeal until the final disposi- 
 tion of the matter," citing Brockett :•. 
 Brockett.j How.(U.S.)238; Slaughter- 
 house Cases, 10 Wall. 289; Cambuston 
 v. United States, 95 U. S. 2S7. See 
 Mann v. Haley, 45 Cal. 63. 
 
 6 Hines v. Driver, 89 Ind. 339; Har- 
 vev v. Kink, I 1 1 Ind. 249.
 
 WHEN APPEAL MAY BE TAKEN. 99 
 
 rendered, and this is sufficient to impress upon it the character 
 of a complete and final judgment. If the judgment does dis- 
 pose of all pending matters it is final, and may be appealed 
 from, 1 but if it leaves any pending matter essential to a complete 
 disposition of the case to be disposed of, it is not final in such a 
 sense as to authorize an appeal. 2 
 
 §121. When the right of Appeal matures — The disposition of 
 pending motions in cases where they terminate the particular 
 controversy ends the authority of the trial court in the particular 
 case, and when this occurs the right of appeal matures. What 
 is done afterwards can not effect the case thus ended by a rul- 
 ing upon all pending motions. The principle is not broken 
 upon by the fact that the party may pursue a new and distinct 
 remedy. The rule we assert is well illustrated by the case 
 wherein it was held that where a new trial, moved for after the 
 close of the term, was granted, but the order granting it was 
 subsequently vacated, the right of appeal did not date from the 
 time judgment in the second trial was rendered, but from the 
 date of the original judgment. 3 Nor is the general rule that a 
 party must prosecute his appeal within the time prescribed 
 avoided by showing that there have been other ineffectual ap- 
 peals. 4 
 
 § 122. Computation of Time — The beginning — It is laid down 
 as a general rule, as we have elsewhere said, that time is to be 
 computed from the date of the entry of the judgment. 5 This 
 
 'Lodge v. Tweell, 135 U. S. 232; The difference is clearly pointed out in 
 
 Sweet f.Merki, 27 Ill.App. 245; Chamb- the case of Webster v. Spindler, 36 Mo. 
 
 ers v. Hoover, 3 Wash. Ty. 20, S. C. App. 355. That case also collects cases 
 
 13 Pac. Rep. 905. showing that the matter of time is so 
 
 2 Bush v. State (Miss.). 6 So. Rep. far jurisdictional that it can not be 
 
 647; Piedemont Manf. Co. v. Buxton, waived by consent. 
 
 105N. C.74; State v. Hightower, 33 S. 3 Jenkins v. Corwin, 55 Ind. 21. See 
 
 C. 59S, 11 S. E. Rep. 579. In a former Hardin v. Watson, 85 Tenn. 593, 4 S. 
 
 chapter (Chapter V, " What may be W. Rep. 37. 
 
 Appealed from ") we marked the differ- * Long v. Emery, 49 Ind. 200. 
 
 ence between the finalty of a judgment 5 Harshman v. Armstrong, 43 Ind. 
 
 when considered with respect to the 126; Crawford v. Prairie, etc., Co., 44 
 
 right to appeal from it and when con- Ind. 361; Wright v. Manns, ill Ind. 
 
 sidered from another point of view. 422; Hursh v. Hursh,99 Ind. 500. See,
 
 100 APPELLATE PROCEDURE. 
 
 seems correct, inasmuch as there is no authentic evidence of 
 the existence of a judgment until it is entered of record in due 
 form, and yet it is difficult, if not impossible, to reconcile with 
 this general rule the decision that when, by a mine pro tunc 
 entry, a judgment is given a retrospective effect, the right to 
 appeal ripens with the date fixed by the nunc pro tunc entry. 
 It is apparent, at all events, that the doctrine that the entry 
 may have a retroactive effect upon the right of appeal is one to 
 be limited and to be sparingly and grudgingly applied. An 
 entry, in due form, of a judgment should, it seems to us, be 
 deemed prima facie, at least, to express the true date of the 
 judgment. 
 
 § 123. Collateral and Independent matters — The fact that a 
 judgment in an independent and distinct action or proceeding 
 is remotely or incidentally connected with a former judgment 
 does not require that the time for appealing shall be reckoned 
 from the date of the original judgment. Where the original 
 judgment necessarily and directly comes in question, then, the 
 time the right of appeal accrues is the date of that judgment. 
 But there may be a distinct and independent proceeding not- 
 withstanding the fact that it may grow out of a judgment ren- 
 dered in an action between the same parties. Thus a judgment 
 quashing an execution may be independent of the original 
 judgment, and, if it is, it may be appealed from within the 
 time prescribed by law. 1 
 
 § 124. How the date of the Final Judgment is Ascertained — The 
 
 date of the rendition of the judgment is to be ascertained from 
 the record. The general rule is that all information of that na- 
 ture must be conveyed by the record to the appellate tribunal. 
 
 ally, Glore v. Hare, 4 Neb. 131; Switch Co., 75 Cal. 426, 7 Am. St. 
 
 Bennett v. Keehn, 67 Wis. 154; Bald- Rep. 183; Gray v. Winder, 77 Cal. 
 
 Scott, 48 Texas, 178; Bailey v. 525, 20 Pac. Rep. 47; In re Fisher's 
 
 Lubke, S Mo. App. 57; Semple, etc., Estate, 75 Cal. 523, 17 Pac. Rep. 640; 
 
 Co. -•. Thomas, 10 Mo. App. 457; McClintock v. Theiss, 74 Ind. 200. 
 
 Atchison, etc., Co. v. Dougan, 39 Kan. 1 Wright v. Rogers, 26 Ind. 218; Mc- 
 
 1S1; Kuhnerl v. Conde, 39 Kan. 265, Allister v. The State, 81 Ind. 256. 
 18 Pac. Rep. 193; Heilbron v. Fowler
 
 WHEN APPEAL MAY BE TAKEN. \ n \ 
 
 The recitals of the record are conclusive, for, as a general rule, 
 the record controls the decision on appeal. What appears of 
 record ordinarily imports absolute verity and the parties will 
 not be heard "to aver against it." Errors in the record may 
 be corrected in the appropriate method, but until the proper 
 steps are taken to correct them and the correction is duly made, it 
 is conclusive upon the question of the time the judgment was 
 rendered as well as upon all matters which the law requires 
 shall appear of record. 1 
 
 § 125. Day the Judgment is entered excluded — The general rule 
 for the computation of time is that the day on which the judg- 
 ment was rendered shall be excluded, and the day on which 
 the last act effectuating the appeal is done shall be included. 2 
 This rule is applied in matters of procedure generally, 3 and 
 should be steadily adhered to in appellate practice for the sake 
 of uniformity and certainty, if for no other reason. The ear- 
 lier cases asserted a different rule and for a time there was 
 much uncertainty, but it has long been held that the first day is 
 to be excluded and the last included so that the question can 
 not be regarded as an open one. 4 The statute requires that the 
 rule should be that stated, for it is general in its terms. 5 
 
 §126. Meaning of the words "Years" and "Months" — The 
 
 term "years" and the term "months" are declared by our 
 
 1 McAllister:'. The State.Si Ind.256. Towell v. Hollweg, Si Ind. 154; Wo- 
 
 2 Wright v. Manns, in Ind. 422; mack v. McAhren, 9 Ind. 6; Martin v. 
 Hursh v. Hursh, 99 Ind. 500; Noble Reed, 9 Ind. 1S0; Blair v. Davis, 9 Ind. 
 v. Murphy, 27 Ind. 502; State v. 236; State v. Thorn, 28 Ind. 306; 
 Thorn, 28 Ind. 306; Byers v. Hickman, Tucker v. White, 19 Ind. 253; Fox v. 
 36 Ind. 359; Faure --.The United States Allensville, etc., Co., 46 Ind. 31. 
 Express Co., 23 Ind. 48; ( lallt v. Finch, * The rule as now established was as- 
 24 How. Pr. R. 193; State v. Weld, 39 serted in Hathaway v. Hathaway, 2 Ind. 
 Minn. 426, 40 N. W. Rep. 561; State v. 513, and in Swift v. Tousey, 5 Ind. 196, 
 Town of Winter Park, 25 Fla. 371, 5 but the contrary was held in Jacol 
 
 So. Rep. 81S; Deere, etc., Co. v. Hucht, Graham. 1 Blackf. 392, Ryman v. Clark, 
 
 32 Mo. App. 153; Seward v. Haydfen, 4 Blackf. 329, and Long" v. M'Clure, 5 
 
 105 Mass. 158. Blackf. 319. 
 
 3 Vogel v. State, 107 Ind. 374; Hill v. 5 R. S. 1SS1, § 12S0; Schoonover v. 
 Pressley, 96 Ind. 447; Benson v. Ad- Irwin, 58 Ind. 287. 
 
 ams, 69 Ind. 353, 35 Am. Rep. 220;
 
 102 
 
 APPELLATE PROCEDtTR.fi, 
 
 statute to mean months and years of the Christian calendar. 1 
 The month February is ordinarily reckoned as a calendar 
 month, hut when a given number of days are specified in a 
 statute regard is to be had to the actual number of days of that 
 month. February of the leap year has, according to the latest 
 decision upon the subject,- twenty-nine legal days, for the 28th 
 and 29th are to reckoned as separate law days and not as one 
 day. To reach the conclusion that the 28th and 29th days of 
 February of the leap year each constituted a full day in law the 
 court was compelled to overrule several decisions. 3 While the 
 departure from the rule stare decisis seems hardly defensible, 
 yet it must be owned that the decision asserting that the two 
 days are distinct in law as well as in fact is grounded in rea- 
 son. 1 It is only when a period of time less than a month is 
 specified, or when time is specified by days that the question 
 whether the 28th and 29th of February are to be computed as 
 one day, or as two days, becomes material.' 
 
 £ 127. Noil Judicial Days — The common law rule is that Sun- 
 da} r is not a judicial day. 6 The common law rule that Sunday 
 
 1 R. S. 1SS1, § 240. See, generally, 
 1 man v. State, 2 Ind.91; Sheets v. 
 Selden, 2 Wall. 177; Union Bank v. For- 
 rest, 3Cranch C. C.218; (imss v. Fow- 
 ler, 21 Cal.392; Commonwealth :•. Le- 
 high Valley Co., 12., Pa. Si. .129, iS 
 Atl. Rep. 406. For definition of the 
 term, "a week of time," see /// re Ty- 
 13 Col. 482. 11 Pac. Rep. Sio. 
 " Day and day-." City of Denver V. 
 Pearce, 13 Col. 383. 12 Pac. Rep. 774. 
 Si.- not isl named. 6 Law 
 
 Rep., Ann., 541. See, generallj', Hed- 
 derich v. State, 101 [nd. 1564; Gibson v. 
 Keyes, 1 1 2 [nd. ;68; Benson v. Adams, 
 I tale's Appeal, 1 1 Pa. St. 
 I [aines v. State, 7 Tex. App. 30. 
 I ' tinction betw een "day " and " d 
 Bemenl v. Trenton, 1 tc, U<>.. 3 Vr. ( N. 
 J.) 513,515; Woolrych on Legal Time, 
 123. Designation of time in a writ. 
 
 Searles v. Averhoff, 2S Neb. 668, \\ X. 
 W. Rep. S72. See, generally, W'oods 
 v. Brezzinski, 57 Conn. 471, iS Atl. 
 Rep. 252. 
 
 2 Ilelphenstine r.Vincennes National 
 Hank. 65 Ind. 582. 
 
 3 Swift v. Tousey, 5 Ind. 196; Craft 
 v. The State Hank of Ind., 7 Ind. 219; 
 Kohler :•. Montgomery, 17 Ind. 220; 
 Rotter v. Holloway, 43 Ind. 35. 
 
 4 10 Central Law Journal, 158. 
 
 5 King v. Worminghall, 6 M. & S. 
 350; King v. Aekley, 3 Term Rep. 250. 
 See, generally. Lister V. Stanley, I 
 Mod. 112. 
 
 6 Mr. Woolrych -ays: " So. where a 
 notice of a motion is to be made on 
 Monday it was held that it ought to be 
 served on Friday, inasmuch for that 
 purpose Sunday is no day." Legal 
 
 Time. 96.
 
 WHEN" APPEAL MAY BE TAKEN. 10;; 
 
 is "no day," is yet enforced in many cases, 1 but it does not 
 prevail so fully and generally as it did formerly. Where the last 
 day specified by the code of practice falls on Sunday it is to be 
 excluded. 1 ' Intervening Sundays are to be counted,"' but if the 
 last day specified in matters relating to practice and procedure, 
 however it may be as to contracts, is Sunday, the act may be 
 done on the following day.' 
 
 § 128. The Appeal must be fully perfected witliiu the Time pre- 
 scribed — The appeal must be fully perfected within the time 
 prescribed by the statute ; it is not enough to take some steps 
 toward effecting an appeal, for all that the statute requires to be 
 done in order to perfect an appeal must be performed within 
 the time limited. 5 An appeal can not be justly said to be taken 
 where a thing essential to its effectiveness remains undone, and 
 what is essential must be done within the time limited, inas- 
 much as there is no warrant or authority for doing it after the 
 expiration of the time prescribed by law. This consideration 
 seems, in itself, sufficient to justify the conclusion we have 
 stated, but is by no means the only one by which it is sup- 
 ported. The right to an appeal is granted upon the condition 
 that all of several designated acts shall be performed, and not 
 upon the condition that any number of the entire series of acts 
 designated less than the whole shall be performed by the party 
 asserting the right. The time prescribed is for taking the ap- 
 peal, not merely for doing some act essential to an appeal 
 within the prescribed time and omitting others. If a party 
 may omit one step, or delay one step, until after the expiration 
 
 1 Street v. United States, 133 U. S. is one year, whether the appeal be by 
 299; Porter v. Pierce, 120 N. Y. 217. the whole or a portion of the co-parties, 
 S. C. 7 Law. Rep. Ann. 847; Quaker and the appeal must be perfected within 
 v. State, 120 Ind.92; 22 N. E. Rep. 100; that time." Among the cases eited were 
 Carothers v. Wheeler, 1 Ore. 194; Arbuckle :'. Swim, 123 Ind. 208, 24 X. 
 Miehie :\ Miehie. 17 Gratt. ( Va.) 109. E. Rep. 105; Hawkins :. McDougal, 
 
 2 R. S„ § 12S0. 126 Ind. 544, 25 N. E. Rep. 70S; Joyce 
 
 3 Womack r. McAhren, 9 Ind. 6. :■. Dickey, 104 Ind. 183, 3 N. E. Rep. 
 
 4 Williams v. State, 5 Ind. 235. 252; Herzogg v. Chambers, 61 Ind. 333. 
 
 5 Ilolloran v. Midland Railway Co. Then' may, of course, he cases where 
 (Ind.), j8 X. E. Rep. ^49. In the case delay in perfecting an appeal can be ex- 
 cited it was -aid: ••The time allowed eluded, but such cases form exceptions 
 within which an appeal may he taken to the general rule.
 
 104 
 
 APPELLATE PROCEDURE. 
 
 of the time, he may omit or delay another and another. To 
 establish a rule which would tolerate such a practice would 
 destroy all certainty and uniformity and build up a deformed 
 and distorted system of mere arbitrary instances. A worse 
 system than that, or one more directly opposed to sound principle, 
 can scarcely be imagined. The reasons supporting our conclu- 
 sions seem so cogent that it is hardly worth while to look to the 
 adjudged cases, but if they are considered, additional support 
 will be found to be yielded by them to that conclusion. The 
 matter of tune is, as the cases declare, and as we have shown, 
 jurisdictional, 1 and, as it is jurisdictional, it must follow that the 
 whole appeal, not merely part of it, must be perfected within 
 the time limited, for there is no authority for doing anything 
 essential to the validity of the appeal after that time. Where 
 the law provides that acts shall be done within a fixed period, 
 acts done after the expiration of that period are, as it has been 
 often held, of no effect. The decisions, which declare that if 
 what is essential to the existence of appellate jurisdiction is not 
 done as the statute defining the jurisdiction prescribes the juris- 
 diction does not exist, give support to our conclusion. 2 Nearer 
 to the direct question are the decisions which affirm that it is 
 not enough to give notice of an appeal within the year, 3 and as 
 
 1 Antf, § in. See, also. Edmonson 
 
 iloomshire, 7 Wall. 306. In this case 
 
 the party petitioned for leave to file a 
 
 bond after the time required by law, but 
 
 ourl refused to permit it to be done. 
 It \\a^ said, in speaking ofa former case, 
 •■ ( )ther cases followed that and in Mus- 
 I ivazos, decided at the last term, 
 the whole doctrine is reviewed and the 
 rule placed distinctly on the ground that 
 this court has no jurisdiction unless the 
 transcript be filed during the term next 
 succeeding the allowance of the appeal. 
 
 intelligible ground of this decision 
 is, that the writ of error and the appeal 
 an- the foundations of our jurisdiction, 
 without which we have no right to re- 
 vise the action of the interior court." 
 It was also said: " In tl >l the 
 
 United States v. Curry, Chief Justice 
 
 Taney answering the objection that the 
 rule was extremely technical, replied, 
 that nothing could be treated by this 
 court as merely technical, and for that 
 reason be disregarded, which was pre- 
 scribed by Congress as the mode for 
 excising the court's appellate jurisdic- 
 tion." 
 
 2 Brooks v. Norris, 11 How. (U. S.) 
 204; Credit Co. v, Arkansas Co., 12S 
 U. S. 25; Farrar v. Churchill. 135 U.S. 
 609; The Lucy, 8 Wall. 307; Steamer 
 Virginia v. West, ig Mow. [82; United 
 States v. (ionic/. I Wall. 690; Mesa V. 
 
 United States, -' Black, 721; Castro v. 
 United States. 3 Wall. 46; Scarborough 
 v. Pargoud, 10S U. S. 567; Washington 
 County v. Durant, 7 Wall. 694. 
 
 3 Johnson v. Stephenson, 104 Ind. 368. 
 The case of Evans v. Galloway, 20 Ind.
 
 WHEN APPEAL MAY BE TAKEN. K)5 
 
 far as they go they are in close agreement with the cases cited 
 in the note to the opening sentence of this paragraph. The 
 decisions upon the subject of the filing the assignment of errors 
 are closely analogous to those cited, inasmuch as they adjudge 
 that however much may be done within the year there is no 
 appeal if the assignment of errors is not filed within that period. 1 
 The reasons we have stated are strongly fortified by the con- 
 sideration of the practical benefit which would result from the 
 rule we state, and the evil consequences which would flow from 
 a contrary doctrine. As it is always proper to consider the 
 consequences of a rule of practice, as it is, indeed, of a statute, 2 
 it may not be inappropriate to allude to the consequences which 
 would flow from a doctrine that would permit parties to take 
 some of the steps essential to an appeal, after the expiration of 
 the prescribed time. It is quite certain some steps must be 
 taken within the time, and if the rule be that if some only of 
 the requisite steps need be taken, how is it possible to lay down 
 any general rule for determining what shall be their character 
 or their number? If the rule mentioned should prevail, the 
 courts would be for much of their time occupied in determining 
 whether the steps taken in the particular instances were suffi- 
 cient in number and weighty enough in importance to save the 
 appeal. If parties may do part of the acts required after the 
 year has expired it will be in their power to cause delays and 
 thus defeat one of the chief objects of the law. From whatever 
 side the question is viewed it is clear that the safe and sound 
 conclusion is that every step required to make an appeal effect- 
 ive must be taken within the time limited by law, and that 
 every step prescribed by law is essential to the appeal. 
 
 479, received very little consideration, lano, 34 Ind. 52; Thoma v. State, S6 
 
 and is full of legal heresy. It is, how- Ind. 182; Thomas v. Service, 90 Ind. 
 
 ever, so effectually overruled by subse- 128; Snyder v. State. 124 Ind. 33;. 
 
 quent cases as to require no examina- See "The Assignment of Errors," Chap- 
 
 tion. Harshman v. Armstrong, 43 Ind. ter XVI 
 
 126, 129; Wright v. Manns, m Ind. * Charles River Bridge v. Warren 
 
 4--- 4 2 4- Bridge, 11 Peters. 420; United States 
 
 1 Laurence v. Wood, 122 Ind. 452; v. Kirby, 7 Wall. 4S2; Lawson v. 
 
 Bacon t-.Witherow, no Ind. 94; Breed- Pulaski Co., 3 Ark. 1, 16, Palairet's 
 
 ing v. Shinn, n Ind. 547; State v. De- Appeal, 67 Pa. St. 479.
 
 ]0i; APPELLATE PROCEDURE. 
 
 § 129. Bar, by Limitation, of part of the Appellants — Where pan 
 of the appellants are barred because of a failure to appeal in 
 time, those not barred may prosecute the appeal, and the names 
 of those who are barred may be struck from the record. 1 The 
 provision of the statute essentially changes the common law 
 rule, 2 and it is difficult to perceive how it can have a very ex- 
 tended practical effect. It can, indeed, have little, if any, ef- 
 fect, except where the persons not barred are under disability, 
 for where there is an essentially independent and distinct sev- 
 eral right, the possessor of it may prosecute a separate appeal, 
 but where the interest is joint and not several or severable, it is 
 difficult to understand how one of the joint parties can prosecute 
 an appeal, except under the statute providing for prosecuting 
 an appeal upon notice to co-parties. It would certainly violate 
 settled principles to permit him to do so, since a recovery by 
 him would necessarily enure to the benefit of those joined in 
 interest with him, or else to his sole benefit. In cither ca'se 
 wrong would result. If he secures all where he was only en- 
 titled to part, it would be wrong, because he would get what 
 another is entitled to receive ; if his appeal secures his joint 
 party benefit, it would also be wrong, because this would secure 
 to a party who has not obeyed the law all he could have ob- 
 tained by obeying it. It is probable that the framers of the 
 statute intended to confine its operation to persons under dis- 
 ability, 3 but the language employed is comprehensive enough to 
 include all persons and classes. There is, at least, plausible 
 reason for the construction suggested, inasmuch as the associ- 
 ated words and provisions refer to persons under disability. It 
 may well be held, as we believe, that it was the legislative in- 
 
 1 R. S., § 634; McEndree v. McEn- thai tin- errors assigned arc not con- 
 dree, [2 [nd. 97; Hawkins v. Hawkins, clusively confessed. 
 28 Ii>> ! 3 R. S., § 033. The intention to save 
 
 "Jacobs v. Graham, 1 Blackf. 392. only those under disability is mani- 
 
 In discussing the pleadings of the ap- fested in the provisions of section 635, 
 
 pellee,we have shown thai thequestion whichdeclare thai co-parties receiving 
 
 whether the appeal is barred by the notice and not joining in the appeal 
 
 statute of limitations may be presented shall take no benefit from the appeal 
 
 1 dismiss the appeal. As unless under " legal disabilities." 
 a motion is appropriate it must follow
 
 WHEN APPEAL MAY BE TAKEN. K,7 
 
 tention that the section of the statute containing the provision 
 under immediate discussion should only apply to the persons 
 saved from the bar by the last clause of the preceding section ; 
 that is, persons under legal disability. Another reason for the 
 construction mentioned is that the provisions of the statute as to 
 the rights of co-parties refusing to join in appeal after notice 
 seem to contemplate that the joint judgment appealed from 
 must be one in which persons under disability are not interested. 
 If the statute providing for proceeding with the appeal bv those 
 not barred be given a construction different from that suggested, 
 it would seem to bring it into conflict with the section respect- 
 ing co-parties. 1 Still another reason is, that the statute is to be 
 construed in connection with the common law, and in connec- 
 tion with other statutory provisions, since all form parts of one 
 great system, and these rules and provisions indicate that onlv 
 persons under disability can, as a general rule, escape the 
 statute of limitations. 
 
 § 130 Parties under Disabilities — The rule limiting the time 
 within which an appeal must be taken to one year does not op- 
 erate upon persons under legal disabilities. 2 A partv under 
 a legal disability at the time the judgment is rendered " may 
 appeal at any time within one year after his disability is re- 
 moved." As to who are under legal disabilities it is foreign 
 to the scope of this work to treat at length, but it may not 
 
 1 The last sentence of the statute re- them, hut if persons are under a dis- 
 
 specting co-parties (§ 635) reads thus: ability, the appeal may benefit them, so 
 
 " If they decline to join, their names that it seems that the right to proceed 
 
 may be struck out, on motion, and they with the appeal exists onlv in favor of 
 
 shall not take an appeal afterwards, nor those whose disabilities prevent a bar, 
 
 shall they derive any benefit from the and that the prosecution of an appeal 
 
 appeal unless from the necessity of the by one of several co-parties can not be 
 
 case, except persons under legal dis- proceeded with under the section mak- 
 
 abilities." This provision can hardly ing provision for proceeding where part 
 
 mean to allow parties not under dis- are barred, except where the bar is 
 
 ability to secure a benefit unless they avoided because of the disabilities of 
 
 appeal in time, for if they do not appeal, those who do proceed. 
 
 the judgment below stands against * R. S., § 633.
 
 L08 
 
 A.PPELLATE PROCEDURE. 
 
 be inappropriate to say that it is probable that under the en- 
 abling statutes, a married woman can not be considered as a 
 prison under a legal disability, within the meaning of the stat- 
 ute regulating appeals ' Under the rule laid down in analo- 
 gous cases, the limitation begins to run during the existence of 
 the disability, and it is only the one year after the removal of 
 the disability that is allowed for taking appeals in cases where 
 the period of limitations has fully expired during the existence 
 of the disability/ The well known rule that cumulative disa- 
 bilities are not allowed to prevent the running of the statute of 
 limitations applies to a statute limiting the time within which 
 appeals shall be taken as fully as to actions in a court of orig- 
 inal jurisdiction. Cases deciding that limitations as to time for 
 appealing from justices of the peace, boards of commissioners, 
 and the like, are imperative, as well as cases deciding that the 
 time of filing motions for a new trial, or bills of exceptions, is 
 the fixing of a positive limitation, all enforce the general prin- 
 ciple that, except as to persons under disability, the time within 
 
 1 The decisions declare that under 
 these statutes " ability is the rule and 
 disability the exception." Rosa V. 
 Prather, 103 Ind. 191: Arnold v. Eng- 
 leman, 103 Ind. 512, 514; Barnett v. 
 Harshbarger, 105 [nd. 410; McLead v. 
 1 Ins. i ',,.. [07 1 rid. 394. In City 
 Of Indianapolis :■. Patterson. I I J [nd. 
 
 344. the court, speaking of the statute 
 of limitations contained in section 292 
 of the revised statutes, said: '•And so 
 far as concerns that statute of limita- 
 tions, married women have been under 
 no common law disabilities which e\- 
 them from its operation since the 
 code of i88i went into force." In 
 Bennett v. Mattingly, no Ind. 197, it 
 was said: "Coverture is no longer a 
 legal disability in this state except in 
 some special cases." Strong V. Ma- 
 
 keever, 102 Ind. 578; Lane v. Schlem- 
 mer, 114 Ind. 296, 301; Phelps v. Smith, 
 1 id Ind. 387, 402; Young v. McFadden, 
 125 Ind. 254. 2*,<>; Miller v. Shields, 124 
 Ind. 166; Haynes v. Xowlin (Dec, 
 '91). 
 
 2 Wright v. Kleyla, 104 Ind. 22?,. 225; 
 Strong v. Makeever, 102 Ind. 578; 
 Breeding 1 Shinn, 8 End. 125; Van 
 Cleave v. Milliken, 13 Ind. 105; Frantz 
 V. Harrow, 13 Ind. 507; Vail :\ Ilalton, 
 14 Ind. 344; Gray v. Stiver, 24 Ind. 174; 
 White v. Clawson, 79 Ind. [88; Wright 
 v. Wright, 97 Ind. 444; Peele v. State, 
 118 Ind. 512. 514; Sims v. Geay, 109 
 [nd. 501; Davidson:. Bates, in Ind. 
 391; Walker v.Hill, 1 1 1 Ind. 223: City 
 of Indianapolis v. Patterson. 112 Ind. 
 344; Hern":-. Griggs, 121 Ind. 471, 476.
 
 WHEN A.PPEAL MAY BE TAKEN. 
 
 109 
 
 which an appeal must be taken is a limitation upon the right of 
 appeal that can not be disregarded. 1 
 
 'Gray v. Palmer, 28 Cal. 416; Peck 
 v. Courtis, 31 Cal. 207; Genella v. Rel- 
 jea,32 Cal. 159; Wetherbee v. Dunn, 32 
 Cal. 106; Brandow v. Whitney, 54 Cal. 
 5S7; Douglass v. Fulda, 54 Cal. 588; 
 Parks v. Barney, 55 Cal. 239; Lower r 1 . 
 Knox, 10 Cal. 4S0; Coombs v. Hib- 
 berd,45Cal. 174; Regan v. McMahan, 
 43 Cal. 626; Dooling v. Moore, 19 Cal. 
 Si ; Young v. Hudson, 99 Mo. 102, 12 S. 
 W. Rep. 632; Patterson v. Woodland, 
 2S Neb. 250, 44 N. W. Rep. 112; Miller v. 
 Camp, 28 Neb. 412, ^4 N. W. Rep. 486; 
 Ibley v. Thompson, 32 So. Car. 5S2; 
 
 Calo v. Railroad Co., 30 So. Car. 608, 10 
 S. E. Rep. 3S9. Time is jurisdictional. 
 Douglass v. Neguelona, 88 Tenn. 769, 
 14 S. W. Rep. 2S3; International, etc., 
 Co. v. State, 75 Texas, 356. 12 S. W. 
 Rep. 685; Coggswell :•. Hogan, 1 Wash. 
 4. 23 Pac. Rep. 835. See, generally, 
 Bellegarde v. San Francisco, etc., Co., 
 So Cal. 61,22 Pac. Rep. 57; Baars v. 
 Crearv, 23 Fla.61, 1 So. Rep. 335: Till- 
 man v. Averett, 82 Cal. 576, 23 Pac. 
 Rep. S75; Romine v. Craelle, 80 Cal. 
 626, 22 Pac. Rep. 296.
 
 CHAPTER VII. 
 
 PARTIES. 
 
 <j 131. Right of appeal generally. 
 
 132. Only parties or privies can ap- 
 
 peal — General rule. 
 
 133. Appealable interest. 
 
 134. Cases in which there is no ap- 
 
 pealable interest. 
 
 135. Substantial interest requisite. 
 [36. Exceptional eases. 
 
 137. Succession — Substitution. 
 
 138. Joint parties. 
 
 139. Co-parties generally. 
 1 |<>. Necessary parties. 
 
 141. Parties to the record not always 
 
 parties to the judgment. 
 
 142. Persons not affected by the ap- 
 
 peal not necessary parties. 
 
 143. Rule requiring necessary parties 
 
 not technical. 
 
 144. Notice to co-parties jurisdic- 
 
 tional. 
 
 145. Failure to give notice to co- 
 
 parties — Waiver of objection. 
 
 146. Waiver of notice. 
 
 147. Successful party can not prose- 
 
 cute an appeal. 
 
 14S. Actual controversy must exist. 
 
 149. Suit for review cuts off appeal. 
 
 1 --,,. Waiver and estoppel by accept- 
 ing benefit of judgment ap- 
 pealed from. 
 
 151. Exceptions to the general rule. 
 
 1 5 j. Payment by defendant not a 
 waiver nor an estoppel. 
 
 § 153. Against whom an appeal may 
 be prosecuted. 
 
 154. Appellees — Who should be — 
 
 General rules. 
 
 155. Persons united in interest — 
 
 Rights of. 
 
 156. How persons originally co-par- 
 
 ties may become adversaries. 
 
 157. Termination or change of inter- 
 
 est — Effect of. 
 15S. Influence of the chancery ele- 
 ment of code procedure. 
 
 159. Relation of parties in trial court 
 
 generally continues on appeal. 
 
 160. Appealable interest — How 
 
 shown. 
 
 161. Effect of change of the positions 
 
 of parties. 
 
 162. Within what time parties must 
 
 be brought in. 
 
 163. Effect of the appeal upon co- 
 
 parties who decline to join. 
 
 164. Effect of notice to one who is a 
 
 party but not a co-party. 
 
 165. Death of party before appeal — 
 
 Effect of. 
 
 166. Death of partv after the appeal. 
 
 167. Death of one of several appel- 
 
 lants — Effect of. 
 
 168. Appeals by and against repre- 
 
 sentatives and privies. 
 
 169. Abatement by death. 
 
 §131. Right of Appeal generally — The question as to who may 
 appeal is sometimes answered in a general way by saying that 
 parties and privies who would be benefited by a reversal or 
 
 (110)
 
 PARTIES. HI 
 
 modification of the judgment may appeal, 1 but this answer, 
 while it is correct in the main, is not strictly accurate. It may 
 be that there is a -prima facie right to appeal although the appeal 
 can not be made successful. Where there is a -prima facie right 
 of appeal the question is presented as to whether there is avail- 
 able error in the record and such a question can only be decided 
 by an examination of the record, but where it appears that there 
 is no right of appeal at all, the appellate court will dispose of the 
 appeal on motion without examining the record further than it 
 is necessary to do so in order to enable it to determine whether 
 a right of appeal exists. If the case is one of which jurisdiction 
 can not be entertained, then the court will, of its own motion, 
 dismiss the appeal. 2 The distinction between cases where there 
 is a right of appeal, but no available error, and cases where 
 there is no right of appeal, or no well taken appeal, is some- 
 times important as affecting the mode of procedure, as it is ob- 
 vious that the one class of cases may often be more summarily 
 disposed of than the other, and that the different classes always 
 require different treatment. 
 
 § 132. Only Parties or Privies can Appeal — General rule— The 
 
 right to prosecute an appeal is in terms given by our statute to 
 parties to the judgment or order, 3 and it is in general true that it 
 is only the parties or their privies that can prosecute an appeal, 
 but it may be said in passing that parties can not always ap- 
 peal. The rule is that the person who assumes to prosecute an 
 appeal must make it appear that he is a party or privy 4 and that 
 
 1 Dupree v. Perry, iS Ala. 34; Hill * Davis County v. Horn. 4 Greene 
 v. Hill, 6 Ala. 166; Roberts -'.Taylor, (Iowa). 94; Montgomery v. Leaven- 
 4 Porter (Ala.), 421; Trammel V. Sim- worth, 2 Cal. 57; Sinter : . De Bernal, 
 mons, S Ala. 271. 3S Cal. 637, 640; Jaqueth v. Jackson, 17 
 
 2 Segler v. Coward. 24 So. Car. 119, Wend. 434; Bayard v. Lombard, 9 How. 
 122; Stark v. Jenkins, 1 Wash.Ty.42i; (U. S.) 530; Payne V. Miles. 20 How. 
 Crane v. Farmer, 14 Col. 294, it, Pac. (U.S.) 219; Robinson v. Board, 37 Ind. 
 Rep. 455. 332; Hall :\ Brooks, 89 N. Y. 33; In re 
 
 3 t R.S., IjUp,:. We say that the right Hardy, 35 Minn. 193. In Fleming v. 
 of appeal is given from orders because Mershon, 36 Iowa, 413, it was held that 
 of the provisions of § 655, relating to a person for whose benefit an action is 
 interlocutory orders, which we have prosecuted can not appeal, 
 heretofore discussed.
 
 11 -J 
 
 APPELL \ IT. PROCEDl RE. 
 
 he has an appealable interest. 1 If there is no appealable inter- 
 est the poison who assumes to appeal will fail. 2 It", however, 
 it appears that there is a substantial interest in the controversy, 
 and its character or extent is such as to bring the case within 
 the jurisdiction of the appellate tribunal an appeal will lie. 3 
 
 § 133. Appealable Interest — The appealable interest should, as 
 a rule, appear from the record. This interest as usually ex- 
 hibited by the record exists only in those who were parties in 
 the trial court ; it has, indeed, been said that only those who 
 were parties below can appeal. Thus it has been held, pursu- 
 ant to this general rule, that after judgment a party can not 
 come in so as to secure a right of appeal. 4 What we have 
 stated may be regarded as the general rules, but they are, as 
 we suppose, subject to exceptions. If it should be appropri- 
 ately made to appear that by legal succession persons had ac- 
 quired an interest in the subject of the controversy, the court 
 would certainly allow them to prosecute the appeal. 5 This is 
 the doctrine applied to cases where a litigant dies and an ad- 
 ministrator is appointed/' and there is no reason why the prin- 
 
 1 Central Trust Co. v. Grant Loco- 
 motive Works. [35 U. S. 207; Stuart 
 - Gay, 127 U. S. 518; Swann v. Wright 
 Eq., 1 10 U. S. 590, 601. 
 
 8 Pierse v. West, 29 [nd. 266; Terrill 
 v. Jennings, 1 Metcf. (Ky.) 450; Mc- 
 (. jfor v. Pearson, 51 Wis. [22; Hem- 
 menway v. Corey, 16 Vt. 225; People v. 
 Wilson, 26 Cal. 127; Mann v. Thayer, 
 18 Wis. 170; Griggs v. Detroit, etc., Co., 
 in Mich. 117: [dley v . Bowen, 11 Wend. 
 227. Arrowsmith v. Rappelge, 19 La. 
 
 Ann. 527. 
 
 3 Kiefer y.Winkens, 39 How. Pr. Rep. 
 170; Sandford v. Sandford, 58 N. V. 
 07. I : u 1 k :. Ayers, [9 Hun. 17. See, 
 generally, Dexter v. Codman, 148 
 Mass. i-m; In r, Buckingham, 57 
 Conn. 544, iS Atl. Rep. 256; State v. 
 Fowler, \\ La. Ann. 3S0, 6 So. Rep. 
 United States v. Armijo, 5 Wall. 
 HI- 
 
 4 Johnson v. Williams, 2S Ark. 47S; 
 Austin v. Crawford Co., 30 Ark. 57S; 
 Borgalthous v. Farmers Ins., etc., Co., 
 36 Iowa. 250; Ferguson v. Board, 44 
 Iowa. 701; State v. Jones, n Iowa, 11. 
 
 5 Phillips v. Shelton, 6 Iowa. 545. 
 
 6 Arnold v. Waldo, 36 Vt. 204; 
 Milliard v. MeDaniels. ( S Vt. 122; Dick 
 v. Kendall, 6 Ore. 166; Mortimer v. 
 Nash, 17 Abbott Pr. R. 22g«; Vail v. 
 Lindsay, 67 Ind. 528; Benoil v. 
 Schneider, 39 Ind. 591. In the case of 
 Peterman v. Ott, 45 Ind. 224, it was 
 held that where a claim is assigned al- 
 ter judgment before a justice of the 
 peace, the assignee may be substituted 
 on appeal to the circuit court; and we 
 can see no reason why the same doc- 
 trine mav not apply to appeals to a 
 higher appellate tribunal. See Benoit 
 v. Schneider, 39 Ind. 591; Losey v. 
 Bi ml, Si Ind. 510.
 
 PARTIES. 113 
 
 ciple on which the doctrine is founded should not be extended 
 to cases of a similar nature. It is. of course, essential that the 
 person who seeks to prosecute an appeal should show that he 
 is interested in the subject-matter of the controversy and that 
 his rights will be materially affected by the judgment, for he 
 can not be allowed to come in if the judgment will not affect 
 his rights. This would ordinarily shut out persons who were 
 not made parties to the action, for their rights could not ordi- 
 narily be impaired by a judgment rendered in an action 
 to which they were not parties. There may, however, be 
 cases where one who was not a party may have a right to ap- 
 peal, as for instance, the assignee of an insolvent debtor, a re- 
 ceiver, or the purchaser of land from a mortgagor after fore- 
 closure. 
 
 § 134. Cases in which there is no Appealable Interest — In accord- 
 ance with the general doctrine that only parties to the record 
 can prosecute an appeal it is held that a party erroneously per- 
 mitted to come in by the trial court can not maintain an appeal. 1 
 Where a judgment is rendered against a township, an appeal 
 by the township trustee individually will be unavailing. 2 A 
 person of unsound mind may appeal from a judgment provid- 
 ing for the appointment of a guardian, 3 but a stranger can not. 
 There may be a right of appeal where a person is directly and 
 materially affected by a judgment, although he may not be 
 named as a party therein, as, for instance, in the case of one 
 who files a bill of interpleader, 4 but the interest shown must 
 be more than a nominal one. 
 
 § 135. Substantial Interest requisite — The decisions referred to 
 in the preceding paragraph show that-the appeal must be prose- 
 cuted by one having a substantial interest in the controversy 
 which will be affected by the judgment on appeal, and the prin- 
 ciple they declare is in harmony with the general rule of code 
 practice, which requires that actions shall be prosecuted by the 
 
 1 Jager v. Doherty, 6i Ind. 52S. This 2 Mcllwaine v. Adams, 46 Ind. 5S0. 
 doctrine can not, however, be extended 3 Cuneo : . Bessoni, 63 Ind. ^4. 
 ■without a violation of principle. * Brooks v. Doxcv, 72 Ind. 327. 
 
 8
 
 1 i [ APPELLATE PROCEDURE. 
 
 real party in interest. There are authorities declaring that a 
 possible remote contingent interest is not sufficient to authorize 
 an appeal, as, for instance, in the case of the objection bv a 
 railroad company to the appointment of an administrator to 
 bring an action against it for causing the death of the intestate, 
 or in the case of the objection to the appointment of an admin- 
 istrator interposed by a debtor. 1 As a further illustration of the 
 general doctrine that the party who prosecutes an appeal must 
 show a substantial interest in the controversy, may be adduced 
 the cases which hold that a trustee of an insolvent's estate who 
 has been allowed his commissions can not appeal from an order 
 allowing the claim of a creditor if the interested parties all ac- 
 quiesce in the order. 2 
 
 § 13G. Exceptional Cases — There may be cases where a person 
 may appeal, although he can not be said, in strict accuracy, to 
 be a party to the judgment or decree. A person may, for in- 
 stance, apply for leave to intervene and file a cross-complaint, 
 or counter-claim, and in this method acquire a right to appeal, 
 although his application to be made a party may be denied." 5 
 In such cases, the person who seeks to intervene must have an 
 appealable interest or his attempt to appeal will be unavail- 
 ing. Where a plaintiff makes a person a party to his complaint, 
 he can not successfully urge in the appellate court that the per- 
 son thus brought in can not assail the complaint. 4 If the plain- 
 tiff makes persons parties to his complaint, he is not in a situ- 
 ation to assert that they were not proper parties, for he can not 
 be allowed to occupy inconsistent positions/' 
 
 1 In re Hardy, 35 Minn. 193, 2S 3 Coburn v. Smart, 53 Cal. 742, 745. 
 N. W. Rep. 219; llv.itt v. Dusenbury, The principle i- essentially the same as 
 i" 1 ' \. Y. 663; Rankin v. Central, etc., that asserted in Brooks v. Doxey. 72 
 Co., 73 Cal. 96, [5 Pac. Rep. 57. Ind. 327. in which it was held that one 
 
 2 Stewart v. Codd, 58 Mil. 86; Sal- who attempted to interplead might ap- 
 mon v. Pierson, 8 Md. 297, 299. Itisevi- peal. Krippendorf v. Hyde, no U. S. 
 dent that this doctrine is one that should 276; Ex parte Jordan, 94 U. S. 24S; 
 he applied with scrupulous care; for a Savannah v. Jesup, 106 U. S. 563. 
 
 ir. trustee, or the like, of an in- 4 Renner v. Ross, m Ind. 269. 
 
 . represents all the cred- 5 Jones v. Thompson, 12 Cal. 191, 19S; 
 
 itors, and it is only where all the cred- Renner v. Ross, supra; Ricketson v. 
 
 itors acquiesce in an allowance that it Compton, 23 Cal. 636, 649. 
 can justly he said that a creditor has 
 no appealable into
 
 PARTIES. U5 
 
 § 137. Succession — Substitution — We have incidentally spoken 
 of the right of one who becomes the successor in interest of a 
 party to prosecute an appeal, 1 but the subject merits more than 
 an incidental notice. The familiar case of the substitution of 
 heirs or administrators where one of the parties dies, requires 
 little discussion. It may be here incidentally noted that where 
 a part}' dies before appeal the appeal can only be taken by his 
 heirs or personal representatives. 2 Where the party dies after 
 the appeal and before submission, his legal representatives may 
 be substituted. 3 If he dies after the case is submitted, the de- 
 cision may be entered as of the date on which the cause was 
 submitted, without any change of parties. 4 Where leave is 
 given to substitute, the order must be complied with, or the ap- 
 peal will abate in cases where substitution is necessary. 5 Pass- 
 ing from the familiar class of cases just mentioned to cases 
 where original parties are supplanted by representatives of a 
 special character, we find illustrations of the doctrine of suc- 
 cession in the successorship of an assignee in bankruptcy, 6 of a 
 receiver, 7 and of the assignee of an insolvent's estate. 8 Of a 
 somewhat different type, but illustrating the general doctrine 
 of succession, are such cases as that of a purchaser at a sale 
 made on a decree of foreclosure, 9 that of persons interested in 
 the confirmation or non-confirmation of a judicial sale made by 
 
 1 Ante, § 133. 5 Ruckman v. Demarest, no U. S. 
 
 2 Branham v. Johnson, 62 Ind. 259; 400; Hook v. Linton, 10 Peters, 107; 
 Taylor v. Elliott, 52 Ind. ^SS, and Philips v. Preston, n How. (U. S.) 294; 
 authorities cited. Judson v. Love, 35 Barribeau v. Brant, 17 How. (U. S.) 43. 
 Cal. 463; Schartzer v. Love, 40 Cal. 93; 6 Herndon v. Howard, 9 Wall. 664. 
 Sheldon v. Dalton, 57 Cal. 19; Sanchez 7 Hinckley v. Gilman, etc., Co., 94 
 v. Roach, 5 Cal. 24S: Coffin v. Edging- U. S. 467; Claflin v. Farmers' Bank, 
 ton (Idaho). 2^ Pac. Rep. So; In re 54 Barb. 22S. 
 
 Beckwith, S7 N. Y. 503. 8 Johnson v. Thatcher, 7 Grav, 242; 
 
 3 R. S.,§637; Halin v. Behrman, 73 Johnson v. Thatcher, 12 Gray, 198. 
 Ind. 120, 129. 9 Blossom v. Milwaukee, etc., Co., 1 
 
 4 R. S., § 663; Jeffries v. Lamb, 73 Wall. 655; Minnesota, etc., Co. v. St. 
 Ind. 202. 207; Walpole v. Smith, 4 Paul Co., 2 Wall. 609, 634; Williams 
 Blackf. 151. This topic is hereafter v. Morgan, in U. S. 6S4, 699; P 
 considered. We here refer to it in plaine v. Lawrence, 10 Paige, 602; 
 illustration of the general doctrine we Murphrey V, Wood, 2 Jones (N. C), 
 are considering. L. 63.
 
 116 APPELLATE PROCEDURE. 
 
 an officer of court, 1 or that of persons interested in defeating the 
 claim of a receiver or assignee to compensation. 2 
 
 § 1.38. Joint Parties — It is essential that all persons whose in- 
 terests may be substantially affected by the judgment on appeal 
 should be made parties to the appeal in some appropriate mode, 
 but it is not always true that all who were parties to the action 
 or to the record in the trial court must be brought before the 
 appellate court. Where the judgment is joint there is no dif- 
 ficulty in making practical application of the general principle 
 stated, for all who are parties to the judgment must be made 
 parties on appeal. Only one appeal can be prosecuted from a 
 joint judgment by those who are parties to it, and yet all must 
 be before the court to which the case is carried/ 5 But, while 
 all the parties to a joint judgment must be brought in on appeal 
 they need not be brought in as consenting parties but they may 
 be notified, and if notified, they are before the court whether 
 they expressly join or refuse to join in the appeal. 4 The effect 
 of the provision in our statute authorizing one of the parties to 
 appeal prevents one of several from controlling the action of 
 those with whom he is united in interest, and yet requires that 
 steps shall be taken which will bring all before the appellate 
 tribunal whose rights may be involved in the controversy upon 
 which a decision must be given. As this is the chief object of 
 the statute the proceedings under it must be such as to give it 
 
 1 Sage v. Railroad Co.. 96 U. S. 712; Mason v. United States, 136 U. S. 581; 
 Trustees v. Greenough, 105 U. S. 527. Curten v. Atkinson, 29 Neb. 612, 46 N. 
 
 2 Hovej v. McDonald, 109 U.S. 150. W. Rep. 91 ; Hunderlock t>.The Dundee, 
 
 jenerally, Hobarl v. Hobart, 86 N. etc., Co., SS Ind. 139; State v. East 
 
 Y. 636; McKenzie v. Rhodes, 13 Abb. et al., 88 Ind. 602; Concannon v. Noble, 
 
 Pr. R.337; Louden v. Louden, 65 How. 96 Ind. 326; Burns v. Singer, etc., Co., 
 
 Pr. R. -1 1 1 ; Hotchkiss v. Piatt, 7 Hun. S7 Ind. 541; Douglaj v. Davis, 45 Ind. 
 
 -(■. affirmed, 66 N. Y 620. 493; Sloan v. Whiteman, 6 Ind. 494. 
 
 3 Mastersonv. Herndon, 10 Wall. 416; 4 R. S. 1SS1, §635; Kain v. Gradon, 
 Miller v. McKenzie, 10 Wall. 582; 6 Blackf. 138; Kirby v. Holmes, 6 Ind. 
 Simpson v. Greeley, 20 Wall. 152; Will- 133; Conaway v. Ascherman, 94 Ind. 
 iams v. Bank of the U. S., 11 Wheat. 187; Emmerl v. Darnall, 58 Ind. 141; 
 \\ \: Mussina v. Cavazos, 20 How. (U. Indianapolis, etc., Co. v. Caven, 58 Ind. 
 
 180; Hampton v. Rouse, [3 Wall. 328; Barger v. Manning, 43 Ind. 472; 
 [87; Feibelman v. Packard, 10S U.S. Moore v. McGuire, 26 Ala. 461; De- 
 it. Fastis v. Trabue, 12S U. S. 225; londe v. Carter, 28 Ala. 541.
 
 PARTIES. 117 
 
 fair and reasonable effect. 1 The object intended to be accom- 
 plished by the legislature and the common law practice respect- 
 ing the general subject are matters proper for consideration in 
 construing the statute, and these considerations forbid that the 
 statute should be so construed as to require that all who were 
 before the court of original jurisdiction as parties shall be 
 brought in as parties on appeal irrespective of the question 
 whether the judgment that may be rendered on appeal can or 
 can not affect their rights. 
 
 § 139. Co-Parties — Generally — The language of the statute pro- 
 viding for notice in cases where some of the parties decline to 
 appeal does not imply that all who were parties to the record 
 shall be notified. 2 The term "co-parties" 3 does not mean that 
 all shall be notified irrespective of the effect of the appeal upon 
 their interests, but it does mean that where their interests may be 
 materially affected by the judgment on appeal, they shall be 
 brought before the appellate tribunal in some appropriate 
 method. The practice established by our statute is borrowed 
 from chancery, but is much amplified. The rule declared by the 
 statute requires that all parties having a common interest in the 
 subject, who may be affected by the judgment of affirmance or 
 reversal, shall be before the court on appeal, since no person's 
 rights can be impaired, much less destroyed, unless he has an 
 opportunity to be heard. If the judgment on appeal may affect 
 the right of a person who was a party to the suit or action in 
 the trial court he ought to be brought before the appellate 
 
 1 The notice toco-parties required by v. Finney, 63 Ind. 460; Hadley v. Hill, 
 
 the statute effects what is called "a 73 Ind. 442. 
 
 Mimmons and a severance," and the 3 The prefix "co" implies a conjunc- 
 
 practice has long been recognized by tion, not a diversity of interest, and 
 
 the courts so that the statutory provis- signifies "with," "together," or "the 
 
 ion is little more than a declaration of like." Where there is a divisible inter - 
 
 a long established rule. Bradshaw v. est and the judgment completely and 
 
 Callaghan, S Johns. 558; Fenner v. effectually severs that interest, it can 
 
 Bettner, 22 Wend. 621; Smetters v. not be justly said that persons, although 
 
 Rainey, .4 Ohio St. 2S7; Todd v. parties to the record, are "co-parties." 
 
 Daniel. 16 Peters, 521; Osborne V. Poe, for "co-parties" they can not be where 
 
 6 Humph. (Tenn.) hi; Smith v. Cun- the interest is a severable one, and is 
 
 ningham, 2 Tenn. Ch. 565. severed by the judgment. 
 
 2 R. S., § 635; People's Savings Bank
 
 I 18 APPELLATE PROCEDURE. 
 
 court in the character of a part}-, 1 but it does not follow from 
 this that all who are parties below are necessary parties on ap- 
 peal, for it may well be that their rights may not be affected by 
 any judgment that can be rendered by the appellate tribunal. 
 
 § 140. Necessary parties — While it is safe to affirm that all 
 persons included in a joint judgment must be parties to the ap- 
 peal, it is not safe to say that only such persons must be parties 
 to the appeal, for there may be cases where the decree or judg- 
 ment is not strictly a joint one in which all the parties are so 
 affected by it as to be necessary parties to the case on appeal. 
 Thus, a decree in partition ma}- affect all so materially as to 
 require that they should be brought before the appellate tri- 
 bunal. 2 So, where a fund is in court for distribution the claim- 
 ants of the fund may, in some instances, be affected by a judg- 
 ment awarding part of it to some one of their number, and if 
 so, all affected should be parties, for their rights can not be 
 justly adjudicated without their presence as parties. 3 A further 
 illustration is supplied by the case wherein it was held that 
 where a judgment affected one of several legatees all must be 
 made parties.' The authorities referred to warrant the con- 
 clusion that those whose rights are involved are necessary par- 
 although their rights may be several in their nature. 
 Whether the persons who were parties below shall be made 
 parties on appeal depends, it is safe to say, upon the effect that 
 the judgment of the appellate tribunal may have upon their 
 rights ; if it will affect their rights materially they should be 
 made parties and notified. But because they were in the court 
 below as parties to the record is not always decisive of the 
 question whether they should be made parties on appeal. 5 
 
 'Hendricks v. State, 7; Ind. 4S;; 8 Pearson v. Darrington, 32 Ala. 227; 
 
 Pierson v. Hart, 64 End. 254; Barger v. Barker v. Barker, 39 X. II. 408; Anon, 
 
 Manning, 13 [nd. 472; Henry v. Hunt, 18 Abbott's Pr. R. 87. But, see, Beer 
 
 52 Ind. 114; Reeder v. Maranda, 55 Ind. v. Creditors, 1 2 La. Ann. 774. 
 
 McKeen v. Boord, 60 Ind. 2S0; * Washburn v Kline, 47 Ind. 128. 
 
 Herzogg z<. Chambers, 61 Ind. 333; 5 New parties who ought to have been 
 
 Hamn 69 Ind. 37. broughl into the case while pending in 
 
 ' l Hunt:'. Hawley, 70 Iowa. 183. Sec. the courl of original jurisdiction can 
 
 rally, Indianapolis, etc., Co. v. Ca- not. as we have elsewhere shown, be 
 
 ven, 58 Ind. 328. broughl in for the first time on appeal.
 
 PARTIES. U9 
 
 § 141. Parties to the record not always parties to the Judgment 
 
 — Where the judgment is distinct and complete in itself, affect- 
 ing only the party who seeks its overthrow, there is no reason 
 for compelling him to augment the expense of litigation by 
 making parties to his appeal persons who were parties to the 
 record but not to the judgment. Where no substantial good 
 can be accomplished by bringing parties before the appellate 
 tribunal, it is worse than a waste of time and money to give 
 them notice, for it is, to some extent at least, a hindrance and 
 obstruction of justice. Thus, where two persons are sued as 
 wrong-doers in a case where the wrong is several, and judgment 
 goes against one of them and in favor of the other, there is 
 ordinarily no conceivable reason why the unsuccessful defend- 
 ant should give notice to the fortunate one, since it is very clear 
 that the latter can in no wise be affected by the appeal. If the 
 plaintiff is dissatisfied and desires a judgment against the suc- 
 cessful defendant, the case may be different. In such a case the 
 plaintiff must take proper steps in the trial court to bring in ques- 
 tion the correctness of the judgment in favor of the successful 
 defendant. If he takes no such steps there is no valid reason why 
 the successful defendant should be brought in on an appeal 
 taken by the other defendant, inasmuch as no good can be ac- 
 complished by bringing him in. The better considered cases 
 sustain us in asserting that where the right of action is clearly 
 divisible and the judgment is against one of the defendants and 
 in favor of the other, the unsuccessful defendant need not make 
 the other a party to the appeal, unless such action is taken in 
 the trial court as makes both of the defendants necessary 
 parties to the appeal. 1 Some of the decisions have pushed the 
 
 Questions as to who are and who are 201; Hanrick v. Patrick, 119 U. S. 156; 
 not necessary parties in the original Marsh v. Nichols, 120 U. S. 598; Brews- 
 suit or action must be appropriately ter v. Wakefield, 22 Mow. (U. S.) 11S; 
 presented to the nisi frius court, and Coxr. United States, 6 Peters, 172: Ger- 
 t lie ruling reserved in due form, for the main v. Mason, 12 Wall. 259; Farrell 
 appellate tribunal will not decide an v. Patteson, 43 111. 52 ; Emerick v. Arm- 
 original question as to parties, but will strong, 1 Ohio, 513; Sharpe v. Jones, 3 
 simply review the decision of the trial Murphy (N. C), 306; Howie v. State, 1 
 court. Golden, etc., Co. v. Smith, 2 Ala. 113; Turner v. State, 40 Ala. 21. 
 Dak. Ter. 374. The doctrine of the text is forcibly il- 
 1 Forgay V. Conrad. 6 How. (U. S.) lustrated by the cases which hold that
 
 APPELLATE PROCEDURE. 
 
 doctrine of notifying parties to the record to an unreasonable 
 and indefensible extent, and the}' require limitation, but the 
 very decided weight of authority is that where a party can not 
 be affected by a judgment that may be rendered on appeal, it 
 is nut necessary lo bring him before the appellate tribunal. 1 
 
 ^ 142. Persons not affected by the Appeal not necessary parties — 
 
 Where a judgment may be rendered on appeal without affecting 
 the rights of others than those who are parties to the appeal, 
 there is, it is evident, jurisdiction of the person, and, if there 
 is also jurisdiction of the subject, there is power to do justice. 
 A party, as we have seen, who has no interest can not appeal, 
 and if he can not appeal, certainly there is no reason for mak- 
 ing him a party to the appeal, since, if he has no interest he 
 can not be heard either for or against the appeal.- It is a car- 
 dinal rule of appellate procedure, prevailing in criminal cases, 3 
 as well as in civil,' that a party can not complain of errors in 
 his own favor. It must logically result from these familiar and 
 well established principles that a party need not be brought in 
 on appeal if he has no interest that can be prejudiced, benefited, 
 advanced, or put in jeopardy, for, without such an interest, 
 there are no rights to be adjudicated, and hence nothing entit- 
 ling such a person to be heard. 
 
 iJ 143. Rule requiring necessary Parties not technical — The rule 
 
 one of several parties against whom ■ Allen v. Commonwealth, 86 Ky. 642, 
 
 damages are separately assessed in con- 12 S. W. Rep. 582; Bishop v. State 
 
 demnation proceedings are allowed to (Ark.), 14 S.W. Rep. 88; State f.Bruder, 
 
 icute separate and distinct appeals. 35 Mo. App. 17;; Hawthorne v. State, 28 
 
 Larsh v. Test, 48 Ind. 130; Washburn Texas App. 212; State V. Jacobs, 28 So. 
 
 v. M ilwaukee, etc., Co., 59 Wis. 379. Car. 29, 4 S. E. Rep. 799; State v. Wil- 
 
 1 Koons v. Mellett, 121 Ind. 585, 5S7; son, 104 N. C. S6S, 10 S. E. Rep. 315. 
 
 ]. 77 Ind. 558; Easter * Fischers. Holmes, 123 Ind. 525, 24 N. 
 
 crin, 7S Ind. 540; Hamilton :■. Se\- E. Rep. 577; Hell V. Anderson, 74 Wis. 
 
 69 Ind. 37; Hogan v. Robinson, 94 638,43 N. W. Rep. 666; Michigan, 
 
 Ind. 138; Berghoff v. McDonald, 87 etc., Co. v. Doherty, 77 Mich. 359, 
 
 Ind. 549; McAllister v. State, Si Ind. 43 N. W. Rep. 988; Wilson v. At- 
 
 Wilson v. Stewart, 63 Ind. 294; lanta, etc., Co., 82 Ga. 3S6, 9 S. E. Rep. 
 
 Kennedy V. Divine, 77 Ind. 490. i"7 r >; Schiller v. Adams, 13 Col. 572, 
 
 1 Gage v. Du Puy, 127 [11. 216, z\ \. 22 Pac. Rep. 964; Golden Gate, etc.. 
 
 E. R Kelly, 133 U.S. 21; Co. v. Hendy Co., S2 Cal. 184, 23 Pac. 
 
 Alii., Ill.>,24.\. !•:. Rep. 551. Rep. 15.
 
 PARTIES. 121 
 
 requiring parties having an interest that may be materially 
 allected by the judgment to be brought before the appellate 
 tribunal is in no sense a technical one ; on the contrary, it is a 
 rule of great importance and is required in order to secure a 
 litigant " his day in court." It is, when justly understood, a 
 salutary rule, and one required by the constitutional principle 
 that the rights of a party can not be adjudicated without notice. 
 The right of a party to notice is, indeed, fundamental, for with- 
 out notice it can not be truly said that there is due process of law. 1 
 It can not be doubted that a statutory provision requiring notice 
 is an imperative one, but it may well be doubted whether an 
 attempt to confer a right of appeal in cases where substantial 
 rights are involved would be valid, except, of course, in cases 
 where the appeal is taken in term or at a time when the fact 
 of appealing itself conveys notice. 
 
 § 144. Notice to co-parties Jurisdictional — Confusion has been 
 introduced into our cases by statements, loosely and generally 
 made, that the rule requiring notice to co-parties is, in a sense, 
 a technical one. 2 There are, however, cases which speak of the 
 requirement as jurisdictional. 3 It certainly is jurisdictional 
 wherever the nature of the case is such as to render it necessary 
 to have all the parties before the court in order to fully determine 
 their rights. It can not, we think it quite safe to say, be justly 
 held that the question whether parties having a substantial in- 
 terest that must necessarily be involved in the decision given on 
 appeal should have notice, is a merely formal or technical one ; 
 it is, on the contrary, a material question inasmuch as it is es- 
 
 1 State v. Robbins, 124 Ind. 30S, 24 N. the case last named it was said, in 
 E. Rep. 978, S Lawyers' Rep. Ann. 43S; speaking of notice to co-parties, that: 
 Kuntz v. Sumption, 117 Ind. 1; Stuart "Without notice to such parties this 
 v. Palmer, 7^ N. Y. 1S3; Gabriel v. court has no jurisdiction, and the appeal 
 Mullen, 30 Mo. App. 464; Ulman v. should be dismissed.*' See, also, Knarr 
 Baltimore, etc., Co., 72 Md. 587,20 Atl. v. Conway, 37 Ind. 257; Wickham v. 
 Rep. 141; Murdock v. Cincinnati, 39 Hess, 3S Ind. 183; Aylesworth v. Mil- 
 Fed Rep. S91. ford, 3S Ind. 226; Erwin v. Scotten, 38 
 
 2 Field v. Burton, 71 Ind. 380. Ind. 2S9. The requirement that notice 
 
 3 Hunderlock v. Dundee, etc., Co., shall be given to co-parties is statutory, 
 SS Ind. 139; State v. East, 8S Ind. and hence can not be disregarded. R. 
 602; Shulties v. Keiser, 95 Ind. 159. In S. 1SS1, § 635.
 
 122 APPELLATE PROCEDURE. 
 
 sentially jurisdictional. It is jurisdictional because it involves the 
 right of the appellate tribunal to exercise authority over the per- 
 son, and jurisdiction of the person is always essential, 1 on appeal 
 as well as at nisi-prius. Some of the courts hold that the question 
 is essentiallv jurisdictional,- while others, taking a sort of middle 
 ground, hold that a decision may be given affecting the rights 
 of the parties before the court but not the rights of others. 3 The 
 objection to the decisions which take what we have called the 
 middle ground is, that they trench upon the fundamental rule 
 forbidding the decision of cases in fragments, and recognize 
 authority to make partial decisions in what should be regarded 
 as an entire and indivisible cause. Of course, where there is a 
 separate and distinct judgment affecting only the parties who 
 appeal, the objection suggested is without force. It seems to us 
 that the only conclusion that can be supported on principle is 
 that wherever the presence of parties is essential in order to a 
 complete adjudication, the question is jurisdictional and the 
 appeal can not be entertained unless the parties interested are 
 notified as the statute requires. 
 
 ^ 1 45. Failure to give notice to Co-parties — Waiver of objection — 
 
 As far as a question can be settled by decisions, the question as 
 to a waiver by a failure to object because the necessary co- 
 parties were not notified, is settled by our cases. It has been 
 held in very many cases that if a case is submitted by agree- 
 ment the appellee waives the objection that co-parties were not 
 notified. 4 We venture to suggest, notwithstanding the formid- 
 
 1 Robertson v. State, 109 Ind. 79. 19 U. S. Sup. Ct. Rep. Co-op. ed. 7": 
 
 2 In re Castle Dome, etc., Mining Barton v. Long, 15 X. J. Eq. 160, 16 
 Co., 79 Cal. 246, 21 Pac. Rep. 746; Atl. Rep. 6S3. 
 
 Senter v. DeBernal, 3S Cal. 637.641; 8 Wrighl v. McHaffey, 76 Iowa. 96; 
 
 Williams v. Santa Clara Mining Asso- Moore -•. Held. 73 Iowa, 53S, 35 N. W. 
 
 ciation, 66 Cal. 193; O'Kane v. Daly, Rep. 623. 
 
 63 Cal. 317; Randall v. Hunter, 69 Cal. 4 Talburt v. Berkshire Life Ins. Co., 
 
 80; Miller v. Thomas. 71 Cal. 406; So Ind. 434: Easter v. Severen, 78 Ind. 
 
 Millikin v. Houghton, 75 Cal. 539: 540; Burk v. Simonson, 104 Ind. 173; 
 
 Moyle v. Landers, 78 Cal. 99; Curten Etter v. Anderson, 84 Ind. 333; First 
 
 v. Atkinson, 29 Neb. 612, 46 N. W. Rep. National Dank v. Essex, 84 Ind. 144: 
 
 1. Guarantee, etc., Co. v. Buddington, Hendricks v. Frank, 86 Ind. 278; Bol- 
 
 23 l'la. ^r.(: Downing v. McCartney, ing v. Howell, 93 Ind. 329; Martin v.
 
 PARTIES. 
 
 123 
 
 able array of cases, that the doctrine that an agreement to sub- 
 mit operates as a waiver is not sound, and we offer as a reason 
 for our conclusion that one party can not by consent, actual or 
 implied, confer jurisdiction over some other person. A person 
 may, of course, confer authority over himself and his own 
 rights, but he can not confer authority over another person or 
 his rights. The effect of the decisions referred to is to permit 
 one who appeals to confer jurisdiction over others who neither 
 appeal nor are given notice, 1 and this result is at variance with 
 sound authority, as well as with the principles of natural justice. 
 
 § 146. Waiver of Notice — Parties entitled to notice as co-parties 
 may waive notice either expressly or impliedly. Form is not a 
 matter of much importance, for if the parties entitled to be heard 
 are before the court so that they can protect their interests, 
 there is no reason why the court should not pronounce judg- 
 ment ; 2 and hence waiver will often be inferred from conduct, 
 and so especially where the parties have an opportunity to be 
 heard, although not regularly served with notice. This does 
 
 Orr, 96 Ind. 491; Dobbins v. Baker, 80 
 Ind. 52; Easter v. Acklemire, Si Ind. 
 1^3; Munson v. Blake, 101 Ind. 7S; 
 Brooks v. Doxey, 72 Ind. 327. 
 
 1 It may be added that the confusion 
 and error which have crept into our 
 decisions are due, in some measure at 
 least, to the failure to clearly keep in 
 mind the rule for determining who 
 are and who are not necessary par- 
 ties to an appeal. If parties are 
 necessary, the question takes the form 
 of a jurisdictional one, and only 
 the party whose rigbts are affected 
 can give jurisdiction of bis person. 
 Surely no other can do it. If the omit- 
 ted persons were not necessary parties 
 to the appeal, then jurisdiction exists, 
 whether they are present or absent. 
 The cmestion must, as it seems to us, 
 always be solved by determining 
 whether the omitted persons were nec- 
 essary parties. Whether there was, or 
 
 was not, a waiver by other persons is 
 entirely foreign to the dispute. It cer- 
 tainly would be unjust to compel a co- 
 party who had no notice of an appeal 
 to pay the costs, and it would be still 
 more unjust to compel him to yield 
 rights secured to him by the judgment. 
 and yet these results must follow if the 
 doctrine of the cases is carried to its 
 necessary and logical conclusion. 
 
 2 This general doctrine is illustrated 
 and enforced by many cases. State v. 
 Hattabough, 66 Ind. 223; Truman v. 
 Scott, 72 Ind. 25S; Burnett v. Abbott. 
 51 Ind. 254; Wangerien v. Aspell, 47 
 Ohio St. 250, 24 N. E. Rep. 405; Moore 
 v. Lewis, 76 Mich. 300, 43 X. W. Rep. 
 1 1 ; Mickley v. Tomlinson. 79 Iowa. 383, 
 41 N. W. Rep. 311; McAllep v. The 
 Latona, 3 Wash. Tv. 332. 19 Pac. Rep. 
 131; Ware v. Morris, 42 La. Ann. 760, 
 7 So. Rep. 712; Waddingham v. Wad- 
 dingham, 27 Mo. App. 596.
 
 124 APPELLATE PROCEDURE. 
 
 not imply, however, that other parties may waive their rights. 
 Mere irregularities in the notice are waived by a submission 
 without objection. 1 When there is no notice in a case where 
 one is required, the submission will not operate as a waiver. 2 
 
 bmission bv agreement waives a pending motion to dismiss 
 
 ippeal ' 
 
 § 147. Successful party cau not prosecute au Appeal — The gen- 
 eral rule is that a party who fully succeeds has no right to an 
 appeal. 1 A party may, however, obtain some relief, but not 
 all to which he is entitled, and in such a case an appeal will 
 lie. If a partv is awarded full relief there can be no reason 
 for an appeal, since there is no wrong to redress, and if no 
 wrong, no remedy exists. So, too, a party who fully succeeds 
 can not be injured by any ruling of the trial court, and only 
 prejudicial errors call into exercise the appellate jurisdiction. 
 Where partial relief only is adjudged there may be prejudicial 
 error, but where full relief is decreed there can be none, and 
 to permit an appeal bv the successful party in such a case 
 would violate fundamental principles and lead to injustice both 
 to the community and to parties. 
 
 § 148. Actual Controversy must exist — Where there is no actual 
 controversy there can be no appeal. 5 Courts are created for 
 
 1 State v. Walters, 64 Ind. 226: Beck 3 Bender v. Wampler, S4 Ind. 172. 
 
 >tate, 72 Ind. 250; Critchell v. 4 Green v. Blackwell, 5 Stew. (X.J.) 
 
 Brown, 72 Ind. 339; State v. Kutter, 59 768; Com. Ins. Co. v. Pierro, 6 Minn. 
 
 Ind. 572; Walker v. Hill, m Ind. 223; 569; St. Louis, etc., Co. v. Evens, etc., 
 
 v v. Potter, 29 Mo. App. 222; Co.. 15 Mo. App. 590; Hooper v. 
 
 Benson v. Carrier, 28 So. Car. 119, 5 S. Beecher, 109 N. Y. 609; Fairbanks :■. 
 
 E. Rep. 272; Guarantee, etc., Co. v. Corliss, 1 Abbott (N. Y.), 150, 155. In 
 
 Buddington, 23 Fla. 514. 2 So. Rep. 885; the case of Hall v. Pay Rock, etc., Co., 
 
 Bates v. Scott. 26 Mo. App. ^2S; 6 Col. Si, it was held that consent will 
 
 In re Joseph Unrig Brewing Co.. 11 not confer jurisdiction. 
 
 Mo. Anp. 387; Mackey v. Common- B Lord v. Veazie, 8 How. (U. S.) 251; 
 
 K v. 345; Chicago, etc., Co. v. Little v. Bowers, 134 U. S. 547; Elwell 
 
 Abilene, etc.. Co., 42 Kan. 104, 107, 21 v. Fosdick, 134 U. S. 500; Nunan v. 
 
 Pac. Rep. 1112; Richardson v. Green, Valentine, 83 Cal. 588,23 Pac. Rep. 713; 
 
 130 U.S. 104; Roy v. Rowe,9oInd.54; Hintrager v. Mahoney, 78 Iowa, 537. 
 
 Cain v. Goda, 94 Ind. 555; First Nat. 13 X. W. Rep. 522,5 Law Ann. Rep. 50; 
 
 Bank v. Essex, S4 Ind. 144. State i>. Westmoreland. 29 So. Car. 1, 
 
 ■ Burkam v. McEfresh, 88 Ind. 22^ 6 S. E. Rep. s 47 ; Chicago, etc., Co. v.
 
 PARTIES. 125 
 
 the purpose of deciding real controversies and not for the pur- 
 pose of determining abstract or speculative questions. It must, 
 therefore, appear that there is an actual controversy between 
 the parties. Where the record shows that an action was regu- 
 larly begun and that it was contested in the ordinary manner, 
 the presumption is that there is an actual controvers}', but this 
 presumption may be overthrown by extrinsic evidence. 1 The 
 fundamental principle of appellate procedure that there must 
 be an actual controversy sustains the rule stated in the preced- 
 ing paragraph and leads to other important conclusions. 
 Among the conclusions to which it leads is this : Where the 
 controversy is ended by the acts of the parties themselves or 
 by operation of law there is no right of appeal. 2 Thus, where 
 a nolle prosequi was entered to an indictment by order of the 
 President of the United States it was held that the appeal must 
 be dismissed. 3 So, where it appeared that the controversy had 
 been settled, a dismissal was ordered. 4 The same principle 
 underlies the case which holds that where the term of office in 
 dispute has expired an appeal will not lie. 5 
 
 § 149. Suit for review cuts off Appeal — A party may have an 
 
 Dey, 76 Iowa, 278, 41 N. W. Rep. 17; * Peck v. Young, 1 How. (U. S.) 250; 
 
 Peoples. Burns, 78 Cal. 645, 21 Pac. Cartwright v. Howe, 1 How. (U.S.) 
 
 Rep. 540; Treat v. Hiles, 77 Wis. 475, iSS; Monnett v. Hemphill, no Ind.299; 
 
 44 N. W. Rep. 10SS. State v. Kamp, in Ind. 56. See. geh- 
 
 1 Witz v. Dale (Ind.), 27 N. E. Rep. erally, Williams v. Nottawa, 104 U. S. 
 49S; Elwell v. Fosdick, 134 U. S. 500; 209; Wood Paper Co. v. Heft, S 
 The Board, etc., v. Louisville, etc., Co., Wall. 333; Cleveland v. Chamberlain, 
 109 U.S. 221; Dakota County v. Glid- 1 Black, 419; People v. Burns, 78 Cal. 
 den, 113 U. S. 222. In the last case 645, 21 Pac. Rep. 540; Numan v. Val- 
 cited it was said: "But this court is entine, S3 Cal. 588; Hintrager v. Mo- 
 compelled, as all courts are, to receive honey, 7S Iowa. 537, 6 Lawyer's 
 evidence dehors the record affecting the Rep. Ann. 50, 43 N. W. Rep. 522. 
 case before them on error or appeal." An attorney can not settle a case over 
 See, post, "Agreed Case." the known objection of his client. Lee 
 
 2 County of San Mateo v. Southern v. Lord, 75 Wis. 35, 43 X. W. Rep. 799. 
 Pacific R. Co., 116 U. S. 13S; State v. See as to agreement of parties without 
 Kansas City, etc., 97 Mo. 331, 10 S. W. knowledge of the attorneys. Jackson 
 R ep-S55- v. Cole, Si Mich. 440, 45" X. W. Rep. 
 
 3 United States v. Phillips, 6 Peters, S26. 
 
 77 6 - See, also, Chicago, etc., Co. v. B State v. Westmoreland, 28 So. Car. 
 Dey, 76 Iowa, 27S, 41 X. W . Rep. 17. 625, 6 S. E. Rep. S47.
 
 126 APPELLATE PROCEDURE. 
 
 appealable interest and yet not be entitled to prosecute an ap- 
 peal, lie may preclude himself from appealing by an election 
 of remedies. Thus, a party may elect to prosecute a suit to 
 review a judgment, and if he does make such an election he can 
 not appeal from the same judgment. 1 This doctrine is an exten- 
 sion of the principle that an election of remedies binds the party 
 and precludes him from pursuing different remedies after having 
 once elected. 2 The principle is a salutary one because it prevents 
 parties from being vexed with litigation, and because it secures 
 one decision finally terminating the controversy. If parties 
 were permitted to exhaust one remedy and then take advantage 
 of another, confusion would result and litigation be unjustly 
 prolonged. 
 
 .^ 150. Waiver and Estoppel by accepting benefit of judgment 
 appealed from — It is a general rule that a party who accepts the 
 benefit of a judgment waives a right to prosecute an appeal 
 from it. 3 This doctrine is asserted in the numerous cases 
 which adjudge that a party who accepts payment of a judg- 
 ment can not afterwards appeal from the judgment thus satis- 
 fied. 4 The same general principle is declared and enforced in 
 
 1 Harvey v. Fink, m Ind. 249; Trad- v. Vert, m Ind. 40S; Sterne v. Vert, 
 
 ers [ns. Co. v. Carpenter, 85 Ind. 350; ioSInd.232; Test v. Larsh, 76 Ind. 452. 
 
 Dunkle v. Elston, 71 Ind. 585; Davis v. See, ante, p. 461, 462; Kile v. Yellow- 
 
 Binford, 70 Ind. 44; Searle v. Whipper- head, So 111. 20S; Sherman v. McKeon, 
 
 man, 79 Ind. 424 ; Indiana, etc., Co. v. 38 N. Y. 266; Glover v. Benjamin, 73 
 
 Routledge, 7 Ind. 25; Klebar v. Town 111. 42; Bates v. Ball, 72 111. 10S; Stin- 
 
 of Corydon, 80 Ind. 95; Buscher v. son v. O'Neal, 32 La. Ann. 947; Board 
 
 Knapp, 107 Ind. 340. See Masonic of Church Wardens v. Perche, 40 La. 
 
 Temple Co. r. Commonwealth, S7 Ky. Ann. 201. 
 
 349. [2 S. W. Rep. 143; Schweickhart * Newman v. Kizer (Ind.), 26 N. E. 
 
 v. Stuewe, 75 Wis. 157, 43 N. W. Rep. Rep. 1006; McCracken v. Cabell, 120 
 
 722; New Orleans, etc., Co. v. Crescent Ind. 266, 22 N. E. Rep. 136; Stat 
 
 City Co., 33 La. Ann. 934. Kamp, m Ind. 56, 11 N. E. Rep. 960^ 
 
 - < roodraan v. Pocock, 15 Q^ B. 576, Baltimore, etc., Co. v. Johnson, S4 Ind. 
 
 583; Scholeyt'. Rew, 23 Wall. 331; Lyon 420; Patterson v. Rowly, 65 Ind. 10S; 
 
 v .Travelers Ins. Co., 55 Mich. 141 ; Long Smith v. Coleman, 77 Wis. 343, 46 N. 
 
 ■ Fox, 100 111. 43; Elliott v. Dycke, 78 W. Rep. 664; Moore v. Floyd, 4 Ore. 
 
 Ala. 150; Bradley v. Rogers, ^ Kan. 260; Lyons v. Bain, 1 Wash. Ty. 482; 
 
 [20; Finlay v. Bryson, 84 Mo. 664; Borgalthous v. Farmers', etc., Co., 36 
 
 Thornton v. Baker, 15 R. I. 553; State Iowa, 250; Alexander v. Alexander, 104 
 
 v . McGuire, 40 La. Ann. 578; Witters N. Y. 643; Chapman v. Sutton, 68 
 
 Fed. Rep. 700. Wi>. (157: Edwards v. Perkins, 7 Ore. 
 
 1 Clark v. Wright, 67 Ind. 224; Sterne 149.
 
 PARTIES. 
 
 L2; 
 
 the cases which hold that where benefits are awarded to a land 
 owner in condemnation proceedings, an acceptance of the sum 
 awarded will preclude him from prosecuting an appeal. 1 The 
 principle is closely akin to that which precludes an appeal where 
 the controversy is terminated by a satisfaction of the judgment 
 recovered in the trial court, and it is, therefore, correctly held 
 that a voluntary release will estop a party from prosecuting an 
 appeal from the judgment released. 2 If there is fraud in pro- 
 curing the release or entry of satisfaction, that may be shown 
 on appeal, and, if shown, will destroy the affect of the release 
 or entry. Where a party successfully interposes a judgment to 
 defeat proceedings in bankruptcy, he can not question its va- 
 lidity. 3 
 
 § 151. Exceptions to the general rule — The rule that a party 
 who accepts benefit from a judgment can not appeal is not 
 without exceptions. If a party does what he has a right to do 
 without affirming, in the act he performs, the validity of the 
 judgment, he does not estop himself from prosecuting an appeal. 
 It will be observed that in the cases in which it has been held 
 
 1 People v. Mills, 109 N. Y. 69, 15 N. 
 E. Rep. SS6; Felch v. Gilman, 22 Vt. 
 38; Hawley v. Harrell, 19 Conn. 142. 
 See, ante, notes 1 and 3; Elliott on 
 Roads and Streets, 277; ibid, p. 2S6, 
 n. 4. 
 
 2 Trickey v. Schlader, 52 111. 7S; 
 Guernsey v. Edwards, 26 N. H. 224; 
 Freeman v. Weeks, 45 Mich. 335. Col- 
 lecting by execution operates as an es- 
 toppel. Paine v. Woolley, So Ky. 568. 
 The doctrine that the acceptance of a 
 benefit precludes the party from ques- 
 tioning the validity of that which se- 
 cures him the benefit is far-reaching. 
 Thus, part acceptance will ordinarily 
 operate as an estoppel. Neal v. Field, 
 6S Ga. 534; Murphy v. United States, 
 104 U. S. 464; Andrews v. United 
 States, 16 Ct. of CI. 265. See, gener- 
 ally, Jessup v. Spears, 3S Ark. 457; Gib- 
 son v. Hall, 57 Texas, 405. So, an ac- 
 
 ceptance of benefits under an unconsti- 
 tutional statute may preclude the party 
 from challenging its validity. Daniels 
 v. Tearney, 102 U. S.415; Robinson v. 
 Bank, iS Ga. 65; Ferguson v. Land- 
 ram, 1 Bush. (Ky.), 54S; Cary v. Whit- 
 ney, 48 Me. 516; State v. Mitchell, 31 
 Ohio St. 592; Lee v. Tillotson, 24 
 Wend. 337; Burlington, etc., Co. v. 
 Stewart. 39 Iowa, 267; Perryman v. 
 Greenville, 51 Ala. 507; People v. Mur- 
 ray, 5 Hill, 46S; Coleman v. Morrison, 
 1 A. K. Marsh, 406. 
 
 3 Cornwall v. Davis, 3S Fed. Rep. 
 S78. See, generally, State v. Harland, 74 
 Wis. 11, 41 N. W. Rep. 1060; Massic :. 
 Brady, 41 La. Ann. 553. A party who 
 once repudiates an award can not sub- 
 sequently make it available. Hamilton 
 v. Hart, 125 Pa. St. 142, 17 Atl. Rep. 
 226.
 
 [28 APPELLATE PROCEDURE. 
 
 that an estoppel exists, the act necessarily affirmed the validity 
 of the judgment. Thus, where a party accepts money or prop- 
 erty awarded him by a judgment, he concedes the validity of 
 the judgment, since it is by virtue of the judgment that he ob- 
 tains the money or property. But there are cases where a 
 remote and incidental benefit is derived, and yet the right of 
 appeal exists. Thus, where a plaintiff prosecutes two actions 
 for the same cause the defendant, by moving to be released 
 from one of them, does not preclude himself from prosecuting 
 an appeal. 1 In such a case the moving party does no wrong to 
 the court or to the adverse party, but stands simply upon a clear 
 legal right. 2 Where the action of the appealing party appears 
 to have resulted from an excusable mistake, then he should be 
 allowed to appeal unless to grant him the right of appeal would 
 unjustly prejudice the adverse party. 3 
 
 £ 152. Payment by defendant not a Waiver nor an Estoppel — It 
 
 is obvious that there is an essential difference between one who 
 pays a judgment against him and one who accepts payment of 
 a sum awarded him by a judgment. Payment by a party 
 against whom a judgment is rendered may often be necessary 
 to protect his property from sacrifice, and what a party does to 
 prevent the sacrifice of his property can not with any tinge of 
 
 1 Pittsburgh, etc., Co. v. Swinney, 91 Lawrence v. Ballou, 50 Cal. 2vS: Sar- 
 [nd. 399; Green Bay, etc., Co. v. Hewitt, gent v. Flaid, 90 Ind. 501. But the rule 
 62 Wis. 316. can not be pressed too far without in- 
 
 2 The rule which precludes an appeal justice. Mr. Bigelow justly sums up 
 i- designed to prevent a party from when he savs: " Where, then, no 
 taking inconsistent positions to the wrong would be clone to the court or to 
 harm or prejudice of his adversary. It other parties to a cause by permitting 
 i^ illustrated in a great variety of cases a change of position, a change should, 
 and is often given effect. Nitche v. in principle, and will be in fact, al- 
 Earle, 117 Ind. 270; Dinwiddie v. State, lowed." Bigelow Estoppel ("5th Ed.). 
 103 Ind. ioi; Hinton v. Whittaker, 101 722. 
 
 Ind. 344. The case of Harbaugh v. 3 Queen v. Liverpool. 15 Q^B. (N. S.) 
 
 A-lbertson, [02 I nd. 69, supplies a strong 1070; Queen ^.Buckinghamshire^ El. & 
 
 illustration of the rule. See, generally, 15. 260; Yeaton v. Lenox, S Peters, 123; 
 
 Wood :•. Rawlings, 76 111. 206; Iron United States v. Curry, 6 How. (U. S.) 
 
 Mountain Bank v, Armstrong, 92 Mo. 106. We suppose that it must appear 
 
 265; Railway Co. v. McCarthy. 96 U. that the mistake was an excusable one 
 
 S. 258; Garber v. Doersom, 117 Pa. St. and that in permitting its correction no 
 
 162; Bonham v. Bishop, 23 So. Car. 96; legal harm is done the opposite party.
 
 PARTIES. 129 
 
 justice, be held to preclude him from assailing the judgment. 1 
 Our cases holding that payment by the defendant does not estop 
 him 2 from prosecuting an appeal rest on solid ground and are 
 sustained by the decisions of other courts. 3 The principle that 
 a party may protect his property from sacrifice by a forced sale 
 upon an execution sustains the decision that a defendant does 
 not preclude himself from prosecuting an appeal by securing 
 an entry of replevin bail. If the defendant should agree not 
 to prosecute the appeal and in consideration of such an agree- 
 ment the creditor should abate part of the recovery, extend the 
 time of payment, or do some other act of a similar character, 
 then, the right of appeal would be waived since the controversy 
 would be terminated. 4 
 
 § 153. Against Whom an Appeal may be prosecuted — Generally — 
 
 In the preceding paragraphs of this chapter we have discussed 
 the question of parties with especial reference to the rights of 
 parties who prosecute appeals, but we have, as a necessary in- 
 cident of the main topic, referred in a general way to the ne- 
 cessity of prosecuting the appeal against the necessary parties. 
 In the succeeding paragraphs of the present chapter we shall 
 treat more especially of the parties against whom an appeal 
 may be prosecuted. As we have said, the parties to the record 
 are not always necessary parties to the appeal, nor are those 
 who were not parties to the record as originally made always 
 to be overlooked in prosecuting an appeal. A succession in 
 estate or in right may sometimes require parties to be notified 
 on appeal who were not parties in the trial court, but the gen- 
 
 1 Factors, etc., Co. v. New Harbor, pursuant to a decree was held not to 
 €tc, Co., 37 La. Ann. 233. waive the right of appeal. O'Hara v. 
 
 2 Armes v. Chappel, 28 Ind. 469; MacConnell, 93 U. S. 150. 
 Dickensheets v. Kaufman, 29 Ind. 154; * This conclusion results from the 
 Hill v. Starkweather, 30 Ind. 434; settled doctrine that where there is no 
 Hyer v. Norton, 26 Ind. 269; Belton v. actual controversy there can be no ap- 
 Smith, 45 Ind. 291 ; Bruce v. Smith, 44 peal. Cleveland v. Chamberlain, 1 
 Ind. 1. Black, 419; Terry :•. Abraham, 93 U. 
 
 3 Edwards v. Perkens, 7 Oregon, 149; S. 3S; Steele v. White, 2 Paige, 47S; 
 Haj'es v. Nourse, 107 N. Y.577; Chap- Kelly *. Israel, 11 Paige, 147; Bush v . 
 man v. Sutton, 6S Wis. 657; Burrows Rochester Bank, 4S N. Y. 659. 
 
 v. Mickler, 22 Fla. 577. A conveyance 
 
 9
 
 130 APPELLATE PROCEDURE. 
 
 eral rule is that only parties to the judgment or decree are nec- 
 essary parties on appeal. 
 
 § 154. Appellees — Who should be — (ieueral Rules — In determin- 
 ing against whom an appeal may be prosecuted it is important 
 to keep in mind the cardinal rule that it is essential to an effect- 
 ive judgment that all of the interested parties should be in court. 
 Parties are necessary to the effectiveness of the judgments of 
 appellate tribunals as well as to the judgments of trial courts. 1 
 But, for obvious reasons, the specific rules which govern the 
 procedure in the trial court can not, as will appear as we pro- 
 ceed, be always rightfully or justly enforced on appeal. The 
 positions of parties and their interests are often so shifted and 
 changed by the judgment or decree of the trial court that those 
 who appeared below as adversary parties become, on appeal, 
 parties on the same side in so far as the question of interest is 
 ruled by mutuality. While it is probably true, as a general 
 rule, that adverse parties in the trial court remain adverse 
 parties on appeal, yet the exceptions are so numerous and so 
 important that it will not do to blindly accept as a guide on ap- 
 peal the rules which govern the procedure in courts of original 
 jurisdiction. 
 
 § 155. Persons united in Interest — Rights of — It is true, in most 
 instances, that all who were united in interest by the judgment 
 in the trial court and who would be benefited by its reversal 
 remain united on appeal, nor is this result changed by the fact 
 'that part only of such parties appeal. Those united in interest 
 with the appellants can not become appellees. Theoretically, 
 at least, there is no right to prosecute an appeal against a party 
 united in interest with the party who seeks a reversal of the 
 judgment. 2 The rule that one of several co-parties may ap- 
 peal does not, by its practical operation, make the parties united 
 in interest by the judgment below adversary parties on appeal. 
 The rule as interpreted by our court is this : Where the parties 
 
 1 Shirley f. Lunenbergh, u Mass.379; 2 In such a case there would usually 
 State v. Baldwin, 70 Iowa, 1S0; Harper he no actual controversy and hence no 
 v. Bibb, 45 Ala. 670; England v. Mc- right of appeal. 
 Laughlin, 35 Ala. 590. See, also, ante, 
 §§ 120, 121, 123, and notes.
 
 PARTIES. 131 
 
 are united in interest by the judgment rendered below they 
 are appellants on appeal, if parties at all. If one of several 
 parties so united in interest appeals it is his duty, as we have 
 seen, 1 to give notice to his co-parties ; if, after notice, they re- 
 fuse to join in the appeal, the case should be dismissed as to 
 them, but if they do not refuse to join they remain in court as 
 appellants. 2 They do not, in any event, occupy the position 
 of appellees. It is evident, therefore, that the doctrine re- 
 specting appeals by one of several co-parties does not infringe 
 upon the rule that those who were adverse parties below con- 
 tinue to be adverse parties on appeal. From this results the 
 general rule that those who were adverse to the parties who 
 appeal are the parties against whom the appeal must be prose- 
 cuted and who become the appellees in the appellate tribunal. 
 
 § 156. How persons originally Co-parties may become Adversa- 
 ries — Parties brought before the trial court as adverse to the 
 plaintiff and as having a common interest may become, as be- 
 tween themselves, adversary parties, and when this occurs it 
 must be true, upon principle, that on appeal by one of such 
 parties he must treat the party whose judgment he assails as 
 an adversary and not as a co-party. Thus, if two persons are 
 brought in to answer as to their interests and one files a cross- 
 complaint or counter-claim against the other, presenting a dis- 
 tinct and independent issue affecting only the party against 
 whom the cross-complaint or counter-claim is filed, an apper 
 from a judgment on such an issue must be taken against th 
 defendant to the cross-complaint or counter-claim as an adverse 
 part}- and not as a co-party. If, to further illustrate, three per- 
 
 1 Ante, §§ 13S, 140, 141, 142, 143, 144. be regarded as having joined and shall 
 
 ' " It is the correct practice," said the be liable for their due proportion of the 
 
 court, in Rabb v. Graham, 43 Ind. 1, costs. If they decline to join, their 
 
 "to unite with those who do not appeal, names may be stricken out on motion, 
 
 those who appeal, in taking the appeal and they shall not take an appeal after 
 
 and assigning the errors; those who wards, nor shall they derive any benefit 
 
 appeal must then serve notice on those from the appeal, unless from the nec< s- 
 
 who do not, and file the proof thereof sity of the case, except persons under 
 
 with the clerk of this court. Then, un- legal disabilities." See. also, Millsap 
 
 less the parties thus notified appear and v. Stanley, 50 Ala. 319. 
 decline to join in the appeal they shall
 
 APPELLATE PROCEDURE 
 
 sons are jointly sued and one of the defendants asserts, by the 
 appropriate pleading, that he is the surety 7 of the other two but 
 makes no issue as to the plaintiff's right to recover against him 
 as principal, the judgment on the issue tendered is, as against 
 the other defendants, independent and distinct, 1 so that on an ap- 
 peal from that judgment the party who tenders the issue upon 
 which it is pronounced is an adversary of the other defendants. 
 The unity of interest is completely severed and the severance 
 creates hostile relations. So, where a personal judgment was 
 rendered in favor of a material man against a sub-contractor 
 employed to erect a building, and this judgment was not ques- 
 tioned, but a contest was waged between the owner and the 
 material man as to the right to enforce a lien, it was held that the 
 sub-contractor was not a necessary party to the controversy on ap- 
 peal between the material man and the owner. 2 Again, where an 
 order is made directing the payment of money to one of two 
 defendants, and the one who is defeated in his effort to secure 
 the money appeals from the judgment, his co-defendant be- 
 comes his adversary on appeal. 3 
 
 § 157. Termination or chauge of interest — Effect of — Where a 
 party ceases to have an interest in the controversy his presence 
 on appeal is unnecessary ; it is, indeed, according to some of 
 the courts, improper to join him in the appeal. 4 It is only those 
 who are injured that can properly be appellants. 5 If, therefore, 
 the injury is by one party to another they are the hostile parties, 
 and if the judgment be independent, affecting them alone, the 
 injured person must be the appellant and his opponent the appel- 
 lee ; otherwise it would result that the injured and the injurer are 
 on the same side and are theoretically bound together as allies, 
 
 1 De Sylva v. Henry, 3 Porter (Ala.), 59S: Shirley v. Burch, 16 Ore. 1, 18 Par. 
 132; Joi Etheridge, 6 Port (Ala.), Rep. 344; Railroad Co. v. Johnson, 15 
 
 generally, Bumpass -w.Webb, 4 Wall. 8; Keller v. Boatman, 49 Ind. 101. 
 
 Porter (Ala.), 65. 3 Rose V. Baker, 99 N. C. 323. 
 
 2 Davis Henderson Lumber Co. v. * Kelly v. [srael, 11 Paige, 147; Mills 
 Gottschalk, Si Cal. 641; Germain v. -'. Hoag, 7 Paige, iS. 
 
 Mason, 12 Wall. 259. See, generally, 5 Porter v. Rummery, 10 Mass. 64; 
 Brewster v. Wakefield, 22 How. (U. Jackson v. Hosmer, 14 Mich. SS. 
 S mS; Marsh v. Nichols, 120 U. S.
 
 PARTIES. 133 
 
 whereas they are, in fact, adversaries. A severance does not 
 always create hostile relations, but parties brought before 
 the trial court on the same side may sometimes sever and so 
 sever as to become adversaries. 1 The principal reasons why 
 all who were united in interest in the court of original jurisdic- 
 tion must be appellants in the appellate tribunal are, (i) that 
 cases can not be carried up piecemeal, and (2) one cause of ac- 
 tion, or defense, can not be split into fragments, 2 but both of 
 these reasons fail where there is such a diversity of interest as 
 makes the parties hostile. Where the parties do become antag- 
 onists upon an independent issue and become such because 
 of the nature of their respective interests, the party injured by 
 the judgment of the trial court has an interest in overthrowing 
 it, and hence may appeal ; on the other hand, the person bene- 
 fited by the judgment has an interest in maintaining it and is 
 naturally and logically an appellee and not a co-appellant with 
 the person to whom the judgment causes loss or injury. 
 
 § 158. Influence of the Chancery element of Code procedure — An 
 
 appeal under the code system, as has been elsewhere shown, 3 
 is composite, blending in one proceeding the common law ele- 
 ments of the procedure in cases of writs of error and the ele- 
 ments of chancery practice as embodied in the system of ap- 
 peals, so that regard must be had to the chancery practice in 
 all cases of equitable cognizance. Under the chancery system, 
 now so generally woven into remedial justice by the codes, 
 parties might change relations in the court of original jurisdic- 
 tion, and so change as to become in reality hostile although 
 nominally on the same side. If the case is one where, by the 
 rules of equity or by the provisions of the statute, interests may 
 be severed and positions changed, the decree ma}- atfect such 
 
 1 Prince :■. r>ates. 19 Ala. 105; Thomp- nating one so far as matters of proced- 
 son v. Campbell, 52 Ala. 583; Glover v. ure are concerned, but still it has not 
 Lyon, 57 Ala. 365; Ellis ;•. Bullard, 11 entirely supplanted the law element. 
 Cush. 41/.; Andrews v. Steele, 7 C. E. It has. however, driven out many 
 Green X. J.). 478. merely technical rules and many merely 
 
 2 Huckabee v. Nelson, 54 Ala. 12. formal requirements of the common 
 
 3 "Appellate Jurisdiction," Chapter law procedure. 
 II. The chancery element is the domi-
 
 1.34 
 
 APPELLATE PROCEDURE. 
 
 a change as will create antagonistic relations and independent is- 
 sues. Where the decree severs the interests upon issues framed 
 by the parties and places two persons who came in as defend- 
 ants in hostile attitudes, then one of the two must be injured by 
 the decree and the other benefited by it, so that the injured 
 party may prosecute an appeal as the appellant against the 
 party whom the decree benefits. 1 One has an interest in re- 
 versing the decree, the other in sustaining it. 
 
 § 159. Relation of Parties in Trial Court generally continues on 
 Appeal — That the attitude of the parties rendered hostile by the 
 decree of the lower court generally remains hostile on appeal is 
 proved by the fact that as to such matters the appeal is, in effect, 
 a continuation of the original litigation. 2 As the litigation is con- 
 
 1 This principle is illustrated by the 
 decision in the case of Vandevecr v. 
 Holcomb, 2 C. E. Green (17 N.J. Eq.), 
 ^47. In that case the complainant 
 brought suit to foreclose a senior mort- 
 making the mortgagor and two 
 junior mortgagees parties defendant. 
 One of the junior mortgagees filed a 
 cross-bill assailing the mortgage of the 
 other defendant, and it was held that an 
 appeal could be maintained by the un- 
 successful defendant as the appellant. 
 In the course of the opinion it was said: 
 " In a court of equity, a decree may be 
 made determining the rights of co-de- 
 fendants in a controversy among them- 
 selves in which the complainant has no 
 interest, when the question is brought 
 before the court by the pleadings and 
 the proofs." The court cited Shannon 
 - Marselis, Saxt. (N.J.) 413; Ames v. 
 New Jersey Franklinite Co., 1 Be. 
 < N . ].). 66; Harris v. Ingledew, 3 P. 
 W. 98; Chamlej v Lord Dunsany, 2 
 Schf. & Let'. 690, 710. Conry v. Caul- 
 field, 2 Ball & Beatty, 255; Elli. 
 
 1 Paige, 263. Hudnit v. Nash, 1 
 1 E. ( rreen ( N. [.), 550. 
 
 tions v Johnson, 24 How. 195, 
 
 2o; . ... etc.. V Cow ell, 6 Col. 
 
 73; Connor v. Connor, 4 Col. 74. 
 
 holtz v. Wilbur, 4 Col. 434. See, gen- 
 erally. Wiscart v. D'Auchy, 3 Dall. 321, 
 327; Rawson v. Adams, 17 Johns. 130; 
 Leach v. Blakely, 34 Yt. 134, 136; Rob- 
 inson v. Magarity, 28 111. 423. In John- 
 son v. Nation, supra, it was said, in 
 speaking of an appeal: "'According to 
 the practice in this court it is rather a 
 continuation of the original litigation 
 than the commencement of a new ac- 
 tion, and such, it is believed, is the gen- 
 eral understanding of the profession in 
 the United States. Cohens v. Virginia, 
 (1 Wheat, 264; Clarke v. Matthewson, 12 
 Peters, 164, 170." It is no doubt true that 
 the appeal is a continuation of the liti- 
 gation hut nol in the court of original 
 turisdiction. The appeal, if so taken as 
 to be effectual, completely transfers the 
 cause to a new forum. To have the 
 effect of transferring the cause the law 
 authorizing the transfer must he fully 
 complied with by the appellant. Bon- 
 durant v. Watson, 103 U. S. 2S1; Ray 
 v. Law. 3 Cranch. 179. Even consent 
 can not change the mode of appeal. 
 The Nonesuch, 9 Wall. 504; Ballance v. 
 Forsyth, 21 How. 3S9; Sampson v. 
 Welsh. 24 lh.w. 207; Mills v. Brown. 
 " Peters, 525. Webster v. Buffalo Ins. 
 Co.. no U. S. 3S6.
 
 PARTIES. 135 
 
 tinued by the appeal and not originated by it, the conclusion that 
 the stakes of the parties as fixed by the issues and decree in the 
 trial court must ordinarily remain unchanged is unavoidable. If 
 hostile below they are hostile on appeal. This conclusion har- 
 monizes with the general principles of procedure and is in ac- 
 cordance with the decision that co-parties remain appellants,, if 
 parties at all, in the appellate tribunal, although one only of 
 several actually prosecutes the appeal. 
 
 § 160. Appealable interest — How shown — It has been said by 
 an able court that, "The true test of the necessary parties to 
 an appeal is this : Has the party an interest that the judgment 
 appealed from be maintained?" 1 This is, in a general sense, 
 correct, but it really presents one side, only, of the question, for 
 a part}' may have an interest in overthrowing the judgment. It 
 must be true that one who has such an interest is a necessary 
 party, since, upon the fundamental principle elsewhere dis- 
 cussed, all parties having a substantial interest in maintaining 
 or in overthrowing a judgment respecting the particular contro- 
 versy determined by it are necessary parties. In the one case 
 they are properly appellants ; in the other, they are properlv 
 appellees. But the question we are here especially concerned 
 with is, how shall this interest be shown? That it must always 
 be shown by the record may be safely affirmed. It is safe to 
 affirm this for the reason that appellate tribunals investigate and 
 determine questions by and from the record. Questions of fact 
 concerning the particular interests of parties and their relations 
 to each other are to be determined upon the record before the 
 tribunal, as it does not look beyond the record. It is not, how- 
 ever, invariably true that the appellate tribunal considers only 
 the record made by the trial court, for, after the cause comes 
 fully within the jurisdiction of the higher court, 2 parties may be 
 changed where changes are required by events occurring after 
 the case leaves the jurisdiction of the trial court. The appel- 
 late tribunal undoubtedly has power to make all needful and 
 
 1 Ivy v. Lusk, ii La. Ann. 4S6. effective appeal completely removes a 
 
 2 In the chapter treating of the effect case from the jurisdiction of the trial 
 of an appeal we have shown that an court.
 
 13G APPELLATE PROCEDURE. 
 
 proper changes of parties in furtherance of justice. It has not, 
 of course, power ' to so change parties as to alter the nature 
 or scope of the original controversy, since that would violate the 
 fundamental principle that appellate jurisdiction is essentiallv 
 one of review, but it has power to make such orders as will 
 ' make its judgments effective, and to accomplish this it is some- 
 times necessary to take steps to bring before it parties who have 
 become necessary and proper parties because of changes in 
 positions and interests. It does not imply a violation of the 
 rule that the record must show an appealable interest to say that 
 parties may be changed on appeal ; this is true for the reason 
 that what the appellate tribunal orders or adjudges is, in the 
 strict sense, part of the record. So where petitions or motions 
 respecting parties are filed in the appellate tribunal after its 
 jurisdiction attaches, they become part of the record of that 
 tribunal. Such petitions or motions are none the less parts of 
 the record on appeal, because they may bring in matters that 
 do not appear in the record of the trial court, 2 for the}' could not 
 there appear, inasmuch as such matters are subsequent to the 
 cessation of the trial court's jurisdiction. But persons who were 
 not parties in the trial court, or are not the successors or rep- 
 resentatives of such parties, can not be brought in for the first 
 time on appeal, for the reason, among others, that the record 
 can not be made to show an appealable interest. 3 Parties nec- 
 essary to the action must, it is not much aside from our discus- 
 sion to say, be made in the court of original jurisdiction, for a 
 failure to bring in necessary parties in the first instance can not 
 be remedied on appeal. It is, in general, true that the record 
 as made in the trial court must show the appealable interest, 
 and in the great majority of instances it is shown by that record. 
 
 1 Power implies right. Carr v. State, 664; Knox v. Exchange Bank, 12 Wall. 
 
 127 End. 204, 11 Lawyers' Rep. Ann. 379; Taylor v. Savage, 1 How. (U. S.) 
 
 570, 371. We use the word not as 2S2; Taylor v. Savage, 2 How. (U. S.) 
 
 meaning arbitrary might, but as mean- 375; Hinckley v. Gilman, etc., Co., 94 
 
 ing rightful authority. U. S. 467; Hovey v. McDonald, 109 U. 
 
 -' This i "'ily true in cases S. 150. 
 
 where receivers, assignees in bank- 3 Payne v. Niles, 20 How. (U. S.) 
 
 ruptcy, or like special representatives, 219; Taylor ?>. Savage, 2 How. (!' 3 
 
 ie rights of the original 394. 
 parties, llerndon v. Howard, 9 Wall. 

 
 PARTIES. 137 
 
 Where it is shown by the transcript filed on appeal that there is 
 an appealable interest, nothing further need be shown, but it is 
 necessary to so describe the parties as that their respective po- 
 sitions and relations as parties to the appeal may appear. 1 It 
 may be further remarked that the record should show the ad- 
 verse relations of the parties, inasmuch as where there is no 
 hostile relation there can be no actual controversy, and if no 
 actual controversy, no appealable interest can exist in any of 
 the parties. 2 The test for ascertaining who are necessary 
 parties to the appeal mentioned in the first sentence of this par- 
 agraph applies to cases where the record shows that parties 
 nominally on the same side are, in reality, on opposite sides, for 
 where the real nature of the controversy and the relations of the 
 respective parties are disclosed, the appellate tribunal can de- 
 termine whether the case is one in which the adverse relations 
 are such as create appealable interests. But where the record 
 shows that the parties were on the same side originally, it will be 
 presumed, in the absence of a countervailing showing, that there 
 was no change in position, and hence were no adverse interests, 
 so that where one of several original plaintiffs or defendants de- 
 sires to prosecute an appeal against the other, so much of the 
 record as shows the nature of the controversy, and the real re- 
 lation of the parties, must be before the court on appeal. 3 
 
 § 161. Effect of change of the Positions of Parties — It is impor- 
 tant to determine when those who were originally co-parties 
 became adverse, for the reason that notice to adverse parties is 
 not the same as notice to co-parties, and for the further reason 
 
 1 The parties must be appropriately transcript shows their identity and 
 described on appeal so that a reference interest, it is sufficient. Gumbel v. 
 to the transcript will disclose their ap- Pitken, 113 U. S. 545; Miltenberger v. 
 pealable interest and the nature of that Logansport, etc., Co., 106 U. S. 286; 
 interest. Smyth v. Strader, 12 How. Mussina v. Cavazos, 6 Wall. 355. 
 (U. S.) 327; Davenport v. Fletcher, 16 2 As elsewhere said, where the re- 
 How. (U. S.) 142; The Protector, lations appear to be adversary and the 
 11 Wall. S2; Deneale v. Archer, 8 action an ordinary one, the presumption 
 Pet. 526; Miller v. McKenzie, 10 Wall, is that there is an actual and not a 
 5S2; Wilson v. Life and Fire Ins. feigned controversy. Ante, § 148. 
 Co., 21 Pet. 140. If parties are de- 3 Milner v. Meek. 95 U. S. 252. 
 scribed so that an inspection ' of the
 
 138 APPELLATE PROCEDURE. 
 
 that co-parties become appellants while adverse parties become 
 appellees. As parties must be appropriately and fully named 
 and described in the assignment of errors. 1 it is essential 
 thai their true relations should be ascertained. It is probably 
 true that those who were co-parties below will so remain in the 
 very great majority of cases, but there are cases in which their 
 interests are not simply severed, for they are antagonistic. 
 Where they are antagonistic and the issue is clearly independ- 
 ent and distinct, then they must be adverse parties on appeal as 
 to that issue, since it can not be legally possible that one of two 
 hostile parties can prosecute an appeal for the other where it 
 affects onlv the matter over which they are fighting. 
 
 § 162. Within what time Parties must be brought in — It is not 
 consistent with principle, nor with the rules essential to the or- 
 derly and effective administration of justice, that one who pros- 
 ecutes an appeal should be permitted to negligently delay the 
 bringing in of necessary parties until after the expiration of the 
 time designated by law as that within which the right to appeal 
 exists. A negligent party who sleeps upon his rights meets 
 with little favor in any court either of equity or law. Where a 
 right is given a party upon the condition that he exercise it 
 within a fixed time he must exercise it within that time or it 
 will be lost. It is, therefore, correctly held that all necessary 
 parties must be brought in within the time fixed b}^ law or the 
 appeal will be dismissed. 2 The general rule is, doubtless, not 
 without exceptions, but it nevertheless governs where no cause 
 is shown excusing the delay. 
 
 § 163. Effect of the Appeal upon Go-parties who decline to join — 
 
 The class created by the statutory provisions which declare 
 that parties who decline to join in the appeal after notice is a 
 peculiar one, and one to which it is difficult to assign a place 
 in logical sequence or method ; but, as it is anomalous, it must 
 
 1 Post, § 332. illon, 26 Hun. 665; Cotes v. Carroll, 28 
 
 2 Holloran v. The Midland Railway How. IV. 436; Curten v. Atkinson, 29 
 Co. (Ind.), 2S N. E. Rep. 549. A doc- Neb. 612, 46 X. W. Rep. 91. See. also, 
 trine very similar to thai of the case ante, §§ m to 120. 
 
 rsi hi v. I lam-
 
 PARTIES. 139 
 
 be arbitrarily given a place and hence may as well be consid- 
 ered here as elsewhere. The persons who refuse to join are 
 not parties in the strict sense, yet they may, nevertheless, be 
 affected l by the appeal. The}' may be affected in two ways, by 
 being deprived of a right to themselves subsequently prosecute 
 an appeal ; by being deprived of the benefit of the appeal in 
 the event that it is successful. 2 Their interests are involved 
 but they are not parties, and the principal reason for requiring 
 notice to them is to obviate the effect of the rule of the com- 
 mon law 3 (which often operated harshly), denying an appeal 
 where several persons were jointly interested unless all joined, 
 but while this is the principal object it is not the only one. 
 Another, and not much less important object, is to prevent a 
 person who will not appeal from securing any benefit in the 
 event of success. This object is accomplished, as far, prob- 
 ably, as it is possible to accomplish it, by the provision which 
 declares, that, " they shall not receive any benefit from the ap- 
 peal, unless from the necessity of the case." What necessity 
 will require the award of a benefit to them it is difficult to con- 
 ceive, but if there be no necessity entitling them to a benefit 
 none can be given them. If they decline to join, the judgment 
 appealed from must, in the great majority of cases, stand against 
 them in undiminished force. 
 
 § 164. Effect of notice to one who is a Party but not a Co-party— 
 
 A singular and difficult question may arise where an appellant 
 gives notice to a party to the record assuming that he to 
 whom the notice is given is a co-party, and giving him notice 
 in that capacity, when, in reality, he is not. 1 We incline 
 
 1 If they do not appear and decline to iams v. Bank of United States, n 
 join they are regarded as joining; if Wheat. 414; Owings v. Kincannon, 7 
 they do join they become appellants, Pet. 399; Wilson v. Life & Fir< ln- 
 and will reap the benefit of the appeal Co.. 12 Pet. 140: O'Dowd v. Russell. 
 in the event of success, but in the event 14 Wall. 40-. 
 
 of an unfavorable judgment they may * We are, of course, referring to a 
 
 be compelled to bear the burden. Ante, case where the notice is given to a per- 
 
 §§ 119, 120, 121, 124. son as a co-party, and is of such a 
 
 2 R. S. 1SS1, § 635. character as to assume to bring him in 
 8 Todd v. Daniel, 16 Pet. 521; Mas- on appeal in that capacity and not in 
 
 terson v. Herndon, 10 Wall. 416: Will- the capacity of an adverse party.
 
 140 APPELLATE PROCEDURE. 
 
 to think that where the party so notified appears, and, with- 
 out stating any reasons for his refusal, declines to join, he 
 will be concluded from taking a subsequent appeal, although 
 he may have an independent right of appeal, but a right in 
 some measure connected with the controversy involved in the 
 appeal. This conclusion is correct, as we believe, because by 
 appearing and declining to join he elects to assume the position 
 of a co-party. This conclusion would not necessarily result if 
 the part)- should appropriately place his refusal upon the ground 
 that he was not a co-party, nor would it result if the appeal in 
 which the notice was given involved an entirely and radically 
 dilferent matter from that embraced in an appeal subsequently 
 taken by him. If one who is a party, but not a co-party, should 
 not appear there would be little, if any., difficulty presented, 
 since his inaction would be construed as an acquiescence in the 
 assumption that he was a co-party. 
 
 § 165. Death of Party before Appeal — Effect of— It is evident 
 that an appeal can not be taken by a dead person. The de- 
 cisions go to the extent of declaring that no jurisdiction exists 
 in cases where an appeal is attempted to be taken after the 
 death of the party whose name appears as appellant, and that a 
 judgment upon such an appeal is void. 1 The general rule in- 
 dicated is directly asserted in other cases, and has for years 
 been asserted in closely analogous decisions. 2 
 
 § 16G. Death of Party after the Appeal is taken — Where a party 
 dies after an appeal is taken an essentially different rule pre- 
 
 1 Taylor v. Elliott, 52 Ind. 588; Tay- ter v. Carriger, 3 Yerg. 411; Ewald v. 
 lor v. Elliott, 53 Ind. 441; Branham v. Corbett, 32 Cal. 493; Coleman v. Mc- 
 fohnson, 62 Ind. 259. In the case lasl Anulty, 16 Mo. 173; Yaplo v. Titus, 41 
 cited it was said: "Hut the appeal to Pa. St. 195; Carr v. Townsend, 63 Pa. 
 t hi ~. court having been taken after the St. 202; Parker v. Ilorne^S Miss. 215; 
 
 ; of Branh mi. ;is to him, is a mil- Young v. Pickens, 45 Miss. 553; New 
 
 lily. No act can be done to hind the Orleans, etc., Co. v. Bosworth, S La. 
 
 dead, except such as they knew and had Ann. So; Loring v. Folger, 7 Gra>', 505; 
 
 an opportunity to meet and answer McCrcery V. Everding, 44 Cal. 2S4, 2S6; 
 
 during their lives." Spalding V. Wath- Sanchez v. Roach, 5 Cal. 248; Jud- 
 
 en, 7 Bush. 659; Case v. Ribelin, 1 J.J. son v. Love, 35 Cal. 463; Schartzer t'. 
 
 Marsh. 29. Love, 40 Cal. 93, 96. 
 
 2 Collins v. Mitchell, 5 Fla. 364; Car-
 
 PARTIES 141 
 
 vails from that which governs where the appeal is taken after 
 a party's death. The statute expressly and clearly provides 
 that the death of any or all of the parties after an appeal is 
 taken shall not cause it to abate, but the names of the proper 
 persons ma} r be substituted, by agreement or upon notice, and 
 when the substitution is made the appeal proceeds as in ordi- 
 nary cases j 1 but we suppose, however, that the statute was not 
 intended to so operate as to permit the prosecution of an appeal 
 where death terminates all right of action. If the death of any 
 or all of the parties occurs after the submission of a cause, judg- 
 ment is required to be rendered as of the term at which the sub- 
 mission was made without " any change of parties." 2 It seems 
 clear that, under the provisions of the statute, in case of the 
 death of a party after submission the judgment shall be ren- 
 dered without any change of parties ; the fact that death has 
 occurred does not require that new parties should be made, al- 
 though that has been done in many cases. But whether new 
 parties are or are not made would seem to be immaterial if the 
 case is duly submitted before the death of a party. 3 
 
 § 167. Death of one of Several Appellants — Effect of— An appeal 
 does not, as a general rule, abate where one of several appel- 
 lants dies. In the event of the death of one of several parties 
 the survivors may prosecute the appeal. 4 It is possible that 
 there may be cases, as, for instance, where the only appellant 
 having an actual appealable interest dies, in which the surviv- 
 
 1 R. S. iSSi, § 637. We have elsewhere ours. Green v. Watkins, 6 Wheat. 260: 
 
 undertaken to. show that the statute Turner v. Booker, 2 Dana, 334; Torry 
 
 does not apply to cases where the right v. Robertson, 24 Miss. 192; Jenney :•. 
 
 of action which the appeal seeks to en- Jenney, 14 Mass. 231; Carrollton v. 
 
 force dies with the person. Post, § 169. Rhomberg, 7S Mo. 547; Blake v. Gris- 
 
 2 R. S. 18S1, §663. Upon suggestion of wold, 104 N. Y. 613; Smith v. Kibbe, 
 
 the party's death the judgment will be 31 IIun.390; Longr. Hitchcock, 3 Ohio, 
 
 entered as of the term at which the 274; Gemmill V. Butler, 4 Pa. St. 252; 
 
 cause was submitted. Hahn v. Behr- Kimbrough v. Mitchell, 1 Head. (Tenn.) 
 
 man, 73 Ind. 120, 126; Jeffries v. Lamb, 539; Harrison v. Mosely, 31 Tex. 60S; 
 
 73 Ind. 202, 207. Galveston, etc., Co. V. Nolan, 53 Tex. 
 
 3 Watpole v. Smith, 4 Blackf. 151. 139; Holloway v. Galliac, 49 Cal. 149; 
 
 The doctrine of the text is asserted by Black :•. Shaw, 20 Cal. 6S. 
 
 many cases decided in jurisdictions * Moses V. Wooster, 115 U. S. 2S5. 
 where the statute is less liberal than
 
 142 AJPPELLA IT. PROCEDURE. 
 
 ors would have no right to effectively prosecute the appeal 
 against a due and opportune objection. We are, of course, 
 here referring generally to cases where the party who dies is 
 not the onlv one in whom the right of appeal exists. It seems 
 necessary to suggest this, since there may be cases where all 
 right dies with one party. 
 
 § 168. Appeals by and against Representatives and Privies — 
 Where the cause of action survives, the legal representative of 
 the decedent may, of course, prosecute an appeal. There can 
 be little or no difficulty in determining who may prosecute an 
 appeal where the controversy concerns only the personal estate, 
 but there is some difficulty where the controversy affects real 
 property, or affects both real and personal property. It has been 
 held that where both the personal estate and the real estate are 
 involved, the personal representatives and the heirs should 
 unite in the appeal. 1 The clear implication from the decision in 
 the case referred to is that where the controversy concerns land 
 alone only the heirs need be parties. 2 It seems clear, on prin- 
 ciple, that, where the heirs are directly and not remotely inter- 
 ested, they stand in such privity to the deceased party as entitles 
 them to appeal, although the controversy may not directly in- 
 volve land. 3 Where heirs are directly interested in sustaining or 
 overthrowing a judgment against the ancestor, they have an 
 appealable interest, 4 and it would seem to follow from this that 
 
 1 Benoil v. Schneider, 39 Ind. 591, land. An administrator may be ad- 
 citing Slaughter v. Foust, 4 Blackf. 379; mitted as a party in the proper case. 
 John v. Hunt, 1 Blackf. 324. In the Branham v. Johnson, 62 Ind. 2159. 
 
 first cited it was said: "We con- 3 The general principles asserted by 
 
 elude that when, as in this case, there the decisions and stated in preceding sec - 
 
 is both a personal judgment and a de- tions of this chapter support this view. 
 
 cree of foreclosure, the personal repre- Adams r>.Wood, 8 Cal. 306, 315; Bates v. 
 
 sentative and the heir should unite in Ryberg, 40 Cal. 465; /// re Wright, 49 
 
 the appeal." The case came before the Cal. 550. A wife having an inchoate 
 
 (•miit a second time and the fprmerrul- interest is so far a privy as to be en- 
 
 ing was tacitly approved. Benoit v. titled to appeal. Kiefer v. Winkens, 39 
 
 Schneider, 47 Ind. 13. How. Pr. R. 176. 
 
 2 In Vail v. Lindsay, 67 Ind. 528, it 4 Gilchrist v. Rea, 9 Paige, 66; In 
 is held thai an administrator can not re Thompson, 11 Paige, 453; Jaun- 
 prosecute an appeal from a judgment cey v. Rutherford, 9 Paige, 273; Wilcox 
 rendered in a case involving the title to v. Smith, 26 Barb. 316
 
 PARTIES. I40 
 
 they are necessary parties on appeal because of privity of re- 
 lation and estate. We suppose, however, that the interest 
 must be more direct than that which heirs have in matters 
 growing out of ordinary claims against the estate of the de- 
 ceased ancestor. Where the proceeding is one to subject land 
 to sale for the payment of debts there can, of course, be no 
 doubt that the heirs are necessary parties on appeal. 1 
 
 § 169. Abatement by Death — The principle that appellate juris- 
 diction is one of review requires the conclusion that where the 
 cause of action does not survive, the appeal will abate in cases 
 where the sole possessor of the cause of action who prosecutes 
 the appeal for its enforcement dies pending the appeal. It 
 would be useless for the appellate tribunal to reverse a judg- 
 ment denying a right of recovery where, if the case should be 
 remanded, the trial court could do nothing more than obey the 
 positive law, and this obedience would inevitably result in a 
 dismissal of the action. We suppose that an appellate tribunal 
 will not proceed when it is made evident that any decision ren- 
 dered would be barren and fruitless. Whether death will or 
 will not abate an appeal depends, therefore, upon whether the 
 right of action survives. 2 Broad and comprehensive as the 
 
 1 Patterson i'. Hamilton, 26 Hun. 665; 161, 7 S. E. Rep. 58; Reynolds v. 
 
 Brown v. Evans, 34 Barb. 594. See, Hennessy (R. I.), 20 Atl. Rep. 307; 
 
 generally, Gilman v. Gilman, 35 Barb. Baker v. Braslin (R. I.), iS Atl. Rep. 
 
 591; Underhill v. Dennis, 9 Paige, 202; 1039. Judge Buskirk says: "Where a 
 
 Kellinger v. Roe, 7 Paige, 362. party to a personal action, which sur- 
 
 3 Our court adopts, substantially, the vives, dies after judgment and before 
 equity rule, and that rule is more the taking of an appeal, the appeal may 
 liberal than that of the common law. be taken by the personal representative 
 Our code does, indeed, enlarge the of the decedent if he was the aggrieved 
 equity rule. There are, however, ac- party, or it may be taken by the ag- 
 tions that do not survive, but die with grieved party by service of personal 
 the person. Indianapolis, etc., Co. v. notice upon the representative of the 
 Stout, 53 Ind. 143; Stout v. Indianapo- party in whose favor the judgment was 
 lis, etc., Co., 41 Ind. 149; Boor t\ Lowrey, rendered." Buskirk"s Pr. 58. The 
 103 Ind. 46S; Hess v. Lowrey, 122 Ind. learned author also says that. '■After a 
 225, 23 X. E. Rep. 156; Clarke v. Mat- careful consideration, we have reached 
 thewson, 12 Pet. 164; Evans v. Cleve- the conclusion that the legislature in- 
 land, 72 N. Y. 4S6, 4SS; O'Reilly v. tended to provide that the death of any 
 New York, etc., Co. (R. I.), 17 Atl. or all of the parties to a judgment, alter 
 Rep. 906; All v. Barnwell, 29 So. Car. an appeal had been taken and before
 
 144 
 
 APPELLATE PROCHPl' R E. 
 
 language of the statute is, we, nevertheless, are of the opinion 
 that it was not intended to give a right of appeal where the 
 right of action, which it is the object of the appeal to make 
 effective, terminates, by positive law. with the death of the 
 person who asks that his claim be established by the judgment 
 on appeal. In view of the long and well settled principles of 
 law and of the statutory provisions upon the subject, our con- 
 clusion is, that a right to prosecute an appeal ceases with the 
 death of the person with whom the right of action dies. We 
 do not believe that the isolated provision was intended to repeal 
 other statutory provisions or abrogate a firmly established rule 
 of law. 1 
 
 submission of the cause to the Supreme 
 Court, should not cause the appeal to 
 abate, but that upon the proper names 
 being substituted, upon consent or upon 
 notice, the cause might proceed." Ibid. 
 The language employed by the learned 
 author is broad enough to convey the 
 meaning that the appeal would not 
 abate in the case suggested in our text, 
 but in view of the statement first quoted, 
 
 we think that was not his meaning. We 
 suppose that in the statement last 
 quoted he intended to be understood, as 
 he well may be, as speaking of a differ- 
 ent subject than the right to prosecute 
 an appeal where the right of action 
 dies with the person. 
 
 1 Downer v. Howard, 44 Wis. 82; Bar- 
 ney v. Barney, 14 Iowa, 1S9.
 
 CHAPTER VIII. 
 
 PROCESS. 
 
 4 170. Notice — Object of — Sufficiency. 
 
 171. Test of sufficiency. 
 
 172. Written notice required. 
 
 173. Notice as essential to jurisdic- 
 
 tion. 
 
 174. Time where there is no fixed 
 
 rule must be reasonable. 
 
 175. Notice not givenin time — When 
 
 ineffective — Waiver. 
 
 176. Upon whom process may be 
 
 served. 
 
 177. Service on the attorney of record. 
 
 § 17S. Service on one of several attor- 
 neys. 
 
 179. Proof of service. 
 
 180. Filing of notice and proof of 
 
 service. 
 
 181. Service of notice on co-parties. 
 
 182. Objections to process. 
 
 183. Constructive notice. 
 
 154. Proof of publication . 
 
 155. Amendment of the proof of no- 
 
 tice. 
 
 § 170. Notice — Object of — Sufficiency — The object of original 
 legal process, 1 whether it be in the form of a notice or in the 
 form of a writ or summons, is to convey information of the gen- 
 eral nature of the proceeding and of the time and place of the 
 hearing or trial. In modern procedure the original process 
 does not serve the same purpose that a formal writ did under 
 the old common law system, and there is no necessity for its 
 being so full and complete under the modern system as it was 
 required to be by the rules of the old system. There is, indeed, 
 less reason for requiring strict accuracy in appellate proceed- 
 ings than for requiring it in proceedings in courts of original 
 jurisdiction. But, as rules are required for the orderly and 
 systematic conduct of the business of judicial tribunals, it is 
 essential that notices and writs should be framed with regard 
 to the provisions of the statute or the general principles of pro- 
 
 1 We here employ the term "legal 1 Idaho, 206, 210; City of Philadelphia 
 
 process" in the sense of the means of v. Campbell, n Phila. 162, 164; Fluester 
 
 bringing a party into court or before V . McClelland, 3 C. B. (N. S.) 357, 359; 
 
 the court, and this meaning is warranted Gilmer v. Bird, 15 Fla. 410, 421. The 
 
 f\v the judicial definitions that have term as used includes notices and formal 
 
 been given the term. People v. Nash, writs. 
 
 10 
 
 (145)
 
 14»» 
 
 APPELLATE PROCEDURE. 
 
 cedure. It will not do to frame notices or writs in entire dis- 
 regard of legal rules, although the law is quite liberal respect- 
 ing the form and service of notices and writs. 
 
 § 171. Test of sufficiency — The modern rule by which a writ 
 or notice is tested is liberal. 1 If it is sufficient to inform the 
 party of the general nature of the case to which he is required 
 to appear, and of the time and place of the hearing, it will 
 ordinarily be deemed sufficient. 2 But, while the rule is liberal, 
 it does not go to the extent of upholding a notice wholly un- 
 authorized by law. 3 If the statute explicitly requires that a 
 notice shall be in a designated form, it must conform to the re- 
 quirements of the statute, 4 but, as a general rule, it is sufficient 
 if the writ or notice is substantially such as the law requires. 
 It is not, however, to be assumed that because the rule as to the 
 form and contents of a notice or writ is liberal that a notice or 
 summons is unimportant, for the reverse is true. A notice or 
 summons is important inasmuch as it is essential to give juris- 
 diction of the person. If the notice or writ is so utterly defect- 
 
 1 Wilson v. Allen, 3 How. Pr. R. 
 369; People v . Tarbell, 17 How. Pr. R. 
 120; Matter of Gales, 26 How. Pr. R. 
 179. 
 
 2 Pamor v. Rombauer, 41 Kan. 295, 21 
 Pac. Rep. 7S4; Shirley v. Birch, 16 Ore. 
 1, iS Pac. Rep. 344; Freeman v. Paul, 
 105 Ind. 451; Quail v. Abbett, 10: [nd. 
 233; Cicero Tp. v. Shirk, 122 Ind. 572. 
 
 8 Day v. Callow, 39 Cal. 593; Gut- 
 brecht v. Prospect Park, etc., Co., 28 
 Hun. 497; Burroughs v. Norton, 4S 
 How. Pr. R. 132; McAllep v. The 
 Latona, 3 W r ash. Ty. 332, 19 Pac. Rep. 
 
 '3 1 - 
 
 ' Reese v. Smyth. 95 X. Y . 645; 
 Cameron v. Equitable, etc., Co., 13 
 Jones & Sp. 62S; Guarantee, etc., Co. 
 v. Buddinton, 23 Fla. 514; Weiser v. 
 Day, 77 Iowa, 25, 41 N. W. Rep. 476; 
 Allen v. Strickland, 100 N. C. 225, (•> 
 S. E. Rep. 7S0. 
 
 5 Bollinger v. Manning (Cal.). 21 
 
 Pac. Rep. 375; Shepherd v. Brown, 30 
 W. Va. 13, 3 S. E. Rep. 1S6. The rule 
 as to writs and notices in the court of 
 original jurisdiction is very liberal, and 
 as there is no reason why it should be 
 more strict on appeal, the decisions 
 upon the subject of process in the trial 
 court are relevant to appellate pro- 
 cedure. The rule is that formal defects 
 will be disregarded. Stout v. Woods, 
 79 Ind. 10S; Robinson v. Brown, 74 
 Ind. 365; Nave v. First Nat. Bank, 87 
 Ind. 204; Johnson v. Lynch, 87 Ind. 
 326; Krug v. Davis, S5 Ind. 309; State 
 v. Davis, 73 Ind. 359; Williams v. 
 Hitzie, 83 Ind. 303; Freeman v. Paul, 
 105 Ind. 451. If the notice brings a 
 party into court and affords him an op- 
 portunity to defend, it is, as a general 
 rule, sufficient. Nysewander v. Low- 
 man, 124 Ind. 584; Hawkins v. Mc- 
 Dougall, 126 Ind. 539, 541.
 
 PROCESS 
 
 147 
 
 ive as to be destitute of force, it will not give jurisdiction. 1 But 
 it is to be borne in mind that there is a marked and material 
 difference between direct and collateral attacks, for where there 
 is some notice, although defective, and it has been expressly or 
 impliedly adjudged sufficient, it will repel a collateral attack. 2 
 Where there is some notice, the objection to its sufficiency must 
 be specially made, unless it is so defective as to be absolutely 
 ineffective. 
 
 § 172. Written Notice required — Written notice is required ; 
 verbal notice can not serve the purpose of bringing a party into 
 court. 3 Actual notice is not sufficient, unless it is substantially 
 such as the law requires. 1 An essential requisite of the notice 
 is that it should state the time and place of the hearing, 5 but in 
 appellate procedure, the designation of the case appealed and 
 the court to which it is appealed is generally sufficient. Where, 
 however, a motion is special, it is otherwise ; in such a case, 
 time and place must be designated with reasonable certainty. 
 Notice, when required to bring a party into court, becomes part 
 of the record in all cases where it is essential and questions arise 
 respecting its sufficiency. 6 
 
 1 Brooks v. Allen, 62 Ind. 401. See 
 Faulkner v. Guild, 10 Wis. 563; Pea- 
 body v. Phelps, 9 Cal. 213. 
 
 2 Muncey v. Yoest, 74 Ind. 409; Mc- 
 Alpine v. Sweetser, 76 Ind. 78; Hume 
 v. Conduit, 76 Ind. 59S; Oppenheim v. 
 Pittsburgh, etc., Co., 815 Ind. 471; 
 Kleyla v. Haskett, 112 Ind. 515; Mont- 
 gomery -'■ Wasem, 116 Ind. 343; Lake 
 Shore, etc., Co. v. Cincinnati, etc., Co., 
 116 Ind. 578; Hackett v. State, 113 Ind. 
 532; Bass v. City of Ft. Wayne, 
 i2i Ind. 3S9; Essig v. Lower, 120 
 Ind. 239; Field v. Malone, 102 Ind. 251 ; 
 Otis v. De Boer, 116 Ind. 531; Adams 
 v. Harrington, 114 Ind. 66; Jackson v. 
 State, 104 Ind. 516. See, also, Bonsall 
 v. (sett, 14 Iowa, 309; Dutton v. I lob- 
 son, 7 Kan. 196; Shea v. Quintin, 30 
 Iowa, 58; Christian v. O'Neal, 46 
 Miss. 669; Cole v. Butler, 1.3 Me. 401; 
 Hendrick v. Whittemore, [05 Mass. 23; 
 
 Morrow v. Weed, 4 Iowa, 77; Ballinger 
 v. Tarbell, 16 Iowa, 491; People v. 
 Hagar, 52 Cal. 171; Sheldon v. Wright, 
 5 N. Y. 497; Delaney v. Gault, 30 Pa. 
 St. 63; Borden v. State, 6 Eng. (Ark.) 
 519; Paine t'. Mooreland, 15 Ohio, 435. 
 
 3 Tidd's Pr. 109. Our statute requires 
 that the notice shall be in writing. R. 
 S. 1SS1, § 482. 
 
 4 Peabody v. Phelps, 9 Cal. 213; Karr 
 v. Karr, 19 N. J. Eq. 427; Jordan v. 
 Bowman. 28 Mo. App. 608. 
 
 5 Kitsmiller v. Kitchen, 24 Iowa, 163. 
 
 6 The fact that notice may become 
 part of the record is evidence that it 
 should be in writing, for oral state 
 ments, unless made in open court and 
 appropriately entered of record, or 1 
 bodied in a bill of exceptions, are not 
 part of the record. Notice may not. in 
 strictness, always be an essential part 
 of the record, but however this may be,
 
 14S APPELLATE PROCEDURE. 
 
 § 173. Notice as essential to Jurisdiction — Notice is, it is true, 
 essential to jurisdiction of the person, 1 but the legislature may 
 prescribe the form of notice and the manner of its service. 2 It 
 is competent for the legislature to provide for notice by publi- 
 cation, and when notice is given by publication as the statute 
 requires it is effective/'' Where, however, a party is in court 
 he is bound to be informed of what occurs there in due course 
 without special notice. It is upon this principle that a statute 
 providing for an appeal within a limited time, or in term, may 
 be upheld, but it is obvious that to make such a statutory right 
 available all the essential acts required by the statute must be 
 performed in substantial conformity to its commands. 
 
 § 174. Time where there is no fixed rule must be Reasonable — 
 
 Where a notice of appeal is required and no time is fixed by 
 the statute or by the rules of the court, reference is to be had to 
 the general rules which govern analogous cases. The object 
 of systematic procedure is to bring the rules of practice into 
 harmony and prevent diversity. The rules of the court fix the 
 time for giving notice to appellees in cases appealed under the 
 act of 1885, and they require ten days' personal service in cases 
 where personal service is proper and publication for a period 
 of thirty days before submission. 1 Notice of appeal under the 
 statute of 1881 was given by ten days' personal service, and in 
 case of non-residents by publication for three weeks thirty days 
 
 it must be in such form that it can Atl. Rep. 556. Some of the courts hold 
 
 always be made part of the record when that a judgment may be valid without 
 
 necessary. It is to be regretted that in any notice. Flint River, etc., Co. v. 
 
 some cases the rule requiring written Foster, 5 Ga. 194, 48 Am. Dec. 248. 
 
 no! ice has been relaxed, but as to This can not be sound doctrine, for 
 
 notice constituting legal process, the without notice there can not be " due 
 
 rule has not been broken upon. process of law." Cooley's Const. Lim. 
 
 1 Windsor v. McVeigh, 93 U. S. 274; 356; Hagar v. Reclamation District. 
 
 Palmer, 74 N. Y. 183, 190; 1 1 1 U. S. 701,707; Ex fart, Wall, 107 U. 
 
 Kuntz V. Sumption, 1 17 Ind. 1. In Wiley S. 265; Campbell v. Dwiggins, 83 Ind. 
 
 o.Neal, 24 Neb. 141,37 N.W. Rep. 926, it 473; Garvin v. Daussman, 114 Ind. 429; 
 
 was held that where there was no notice Seifert v. Brooks, 34 Wis. 443; White- 
 
 and no appearance the Supreme Court fordTp.t'. Probate Judge, 53 Mich. 130. 
 had no jurisdiction of the appeal. s Essig v. Lower, 120 Ind. 239; Quarl 
 
 2 Thotrvenin v. Rodiguez, 24Tex.46S; v. Abbett, 102 Ind. 233. 
 Hurlbut v. Thomas, 55 Conn. 1S1, 10 4 Rule XVII.
 
 PROCESS. 149 
 
 before the first day of the term, 1 but the act of 1S85 has, under 
 the rules of the court, practically supplanted the provisions of 
 the former statute. 2 
 
 § 175. Notice not given in Time — When ineffective — Waiver — 
 
 Time is an essential element in the service of process. A no- 
 tice not given in season is bad when directly and properly 
 assailed. But where there is an appearance and no objection, 
 defects are waived. It is not essential to constitute a waiver 
 that there should be a formal or regular appearance, for waiver 
 of notice may be implied from an indirect or informal appear- 
 ance, as, for instance, by filing a brief upon the merits. 3 
 
 § 176. Upon whom Process may be served — Personal service 
 may be made upon the party or upon his attorney of record. 
 W£here the notice is given below notice must also be served 
 upon the clerk of the trial court, but where the notice issues 
 from the appellate tribunal it is sufficient to serve it upon the 
 adverse party or his attorney. 4 If notice below is given the 
 transcript must be filed in the office of the clerk of the Supreme 
 Court within sixty days from the time of taking such appeal ; 
 if not so filed, the appeal will fail. 5 But the failure of an appeal 
 taken upon notice given below will not preclude the appellant 
 from perfecting an appeal by issuing and serving notice as in 
 cases where no notice is given below." It is, however, to be 
 
 1 R.S., §§651,652. As to length of time 3 Schmidt ^.Wright, 88 Ind. 56; Rob- 
 required, see Hill :•. Pressley, i/> Ind. crtson v. O'Riley, 14 Col. 441. i\ 
 447; Horn:'. Indianapolis Nat. Bank, Rep. 560. See, generally, State v. 
 
 125 Ind. 3S1. tabough, 66 Ind. 223; Clark v. Conti- 
 
 2 Elliott's Supp., § 28. Theact of 1SS5 nental, etc., Co., 57 Ind. 135; Summers 
 is so vague and indefinite as to be in- v. State, 51 Ind. 201; Bates v. Scott, 26 
 capable of practical enforcement with- Mo. App. 428; Benson v. Carrii 
 
 Out the aid of the rules adopted by the So. Car. 119, 5 S. E. Rep. 272; Wilson 
 court. These rules have given it a prac- v. Zeigler, 44 Tex. 657. 
 tical effect, and under them the cases * R. S., § 640. We are, of course, 
 are submitted. These rules are valid speaking of appeals after term, for term 
 upon the general principle that courts appeals, as we have seen, Jo not re- 
 have power to make rules for the con- quire notice, 
 duct of business, and the practice has 5 Rule II. 
 been so uniform and so long continued 6 Rule II. 
 that the rules may well be considered 
 as the law.
 
 150 APPELLATE PROCEDl RE. 
 
 kept in mind that the appeal must, in an)- event, be perfected 
 within the year, since that is the utmost limit within which an 
 appeal can ordinarily be taken. An appeal attempted to be 
 taken under the law regulating appeals in term may become a 
 valid appeal upon notice although it may be ineffective as a 
 term appeal, but in order that it may become effective as an 
 appeal after term, notice must be issued and served within the 
 year allowed for perfecting appeals. 1 It is essential in cases where 
 notice is issued from the appellate tribunal that the transcript 
 should be filed before the notice issues, and that errors should 
 be assigned. Process issues against the parties named in the 
 assignment of errors 2 and it is necessary that they should be 
 properly named and designated. 3 
 
 § 177. Service on the Attorney of Record — Notice ma} be 
 served upon the attorney of record in the trial court, 4 although 
 his employment as attorney may not continue beyond the trial 
 and judgment. 5 It is possible there may be cases where service 
 upon the attorney will be ineffective, 6 as, for instance, where 
 the appellee has notice of the discharge of the attorney ; but, 
 however this may be, it is clear that, presumptively at least, the 
 cmplovment continues for the purpose of receiving notice of 
 
 1 Rule 1; Holloran v. Midland Rail- record, personal service must be made 
 v.:i\ I E. Rep. 549. upon him, or upon his client, for service 
 
 2 Rule VI. oy publication is only allowable where 
 1 Braden v. Leibenguth, 12611^.336; there is no attorney of record and the 
 
 Sparklin v. Wardens, etc., 119 End. 535; adverse party is a non-resident. John- 
 Hawkins v. McDougall, 126 Ind. 544; son v. Miller, 43 Ind. 29. 
 Brookover v. Forst, 31 Ind. 255. The 6 In Richardson v. Pate, 93 Ind. 423, 
 urn in Prici I ike r, 41 Ind. 570, 430, it was said: " Service on the at- 
 lified 1\ later decisions and is in- torney who appeared of record is as 
 deed in conflict with the earlier cases, good as upon the party himself, in the 
 ["he Assignment of Errors, "Chap- absence of evidence thai the party pro- 
 ter XVI. posing to appeal bad notice of the at- 
 1 Hurlbut v. Hurlbut, 12 Ind. 346; torney's discharge. The fact that the 
 Kinney v. Hickox, j| Neb. 167, 38 N. attorney accepted notice as but for one 
 W. Rep. Sir,; Beardsley v. Frame, 73 of the parties can make no difference; 
 Cal. 034, 15 Pac. Re]). 310; Shirley v. the service of notice on him is the ma- 
 on, 1, iS Pac. Rep. 344. terial point, and, when made, is good as 
 6 Taking the provisions of sections against all of the appellees for whom 
 ud 051 of the code together, it is he appeared of record in the trial court." 
 clear that where there is an attorney of
 
 PROCESS. 151 
 
 the appeal. We are, indeed, inclined to doubt whether the 
 appellee can in any case defeat the appellant by discharging 
 the attorney, for the law provides that notice to the attorney of 
 record shall be sufficient, and it is difficult to conceive any ten- 
 able ground upon which it can be held that the appellant can, 
 in any event, be required to look beyond the record or to do 
 more than the law requires. To permit the appellee, especially 
 where he is a non-resident, to defeat an appeal by showing a 
 discharge of the attorney and notice to the appellant, would 
 often lead to injustice and would in many instances raise un- 
 necessary and perplexing questions of fact. Notwithstanding 
 the intimation in the opinion from which we have quoted we 
 are inclined to believe that service upon the attorney of record 
 is all that is required, and that no question as to notice of his 
 discharge can be presented. We believe, however, that where 
 the appellee has in good faith discharged his attorney the 
 court, upon a timely and proper showing, would grant relief by 
 setting aside a submission and extending the time for filing a 
 brief, or the like, but we do not believe that there could be any 
 order rightfully made which would so operate as to defeat the 
 appeal. 
 
 £ 178. Service on one of several Attorneys — Where a party is 
 represented by two or more attorneys, service upon one of them 
 is sufficient. 1 If, however, there are parties with diverse inter- 
 ests having different attorneys, although nominally on the 
 same side of the case, service of notice upon an attorney repre- 
 senting one of the parties would not be effective as against the 
 others. This is so for the reason that service upon the attorney 
 is effective only where he is of record the representative of the 
 litigant. 2 If one attorney represents parties united in interest, 
 then service upon him will be sufficient, no matter how numer- 
 ous the parties may be, for in such a case the material purpose 
 of the statute is given effect. Where there are several parties 
 
 ^omstock v. Cole, 2S Neb. 470,44 E. Rep. 920. See, also, Goodwin v. 
 
 X. W. Rep. 4S7: Cockrill v. Hall, 76 Hilliard, 76 Iowa, 555, 41 N. W. Rep. 
 
 Cal. 192. 18 Pac. Rep. 31S. 312. 
 
 2 Anderson v. Fau, 79 Ga. 55S, 4 S.
 
 152 APPELLATE PROCEDURE. 
 
 with diverse interests and different attorneys, the notices of ap- 
 peal should be appropriately framed and severally served. 1 
 
 § 179. Proof of Service — Service of notice of an appeal may 
 be proved in various modes. Acceptance of service by the 
 party himself, or by his attorney of record, is valid proof of due 
 service of the notice. Service may be proved by the return of 
 an officer duly authorized to serve legal process, or it may be 
 proved by affidavit, when not made by an officer. 2 The accept- 
 ance of service, as well as the proof of service, should, in strict- 
 ness, state the time and place of service, for so the statute re- 
 quires. 3 But the place of service is, in general, not required to 
 be specifically set forth, although it is otherwise as to time. We 
 suppose that, under the general rule, defects and irregularities 
 which do not mislead or prejudice the party will be disregarded. 
 The failure to state the place of service would not vitiate the 
 notice or process. The provision of the code requiring the time 
 and place to be stated, is to be taken in connection with other 
 statutory provisions, and with settled principles, and when thus 
 taken it is clear that it can not be allowed to defeat the service 
 where the party served has not been misled or prejudiced. It 
 has long been the practice to accept as sufficient proof of service 
 a verified statement or an official return which does not desig- 
 nate the place, and this practice has given a practical exposition 
 to the statute which can not be rightfully disregarded. Pos- 
 sibly, cases may arise where it is important that the place of 
 service should be stated, as, for instance, in cases where the 
 party is a non-resident, and so appears of record, but such 
 cases are very rare. Presumptively an acknowledgment of 
 service implies that it was made where the papers show the 
 venue to be laid, and in cases where the service is by an officer 
 the presumption is that service was made within his bailiwick. 
 
 I 180. Filing of Notice and Proof of Service — Notices must be 
 properly filed and so must the proof of service. They are mat- 
 center v. DeBernal, 3 S Cal. 637: 'Rule XVII; R. S., § 481, Subdiv. 
 Thompson v. Ellsworth, 1 Barb. Ch. 1. 2. 
 
 624, 627; Cotes v. Carroll, 28 How. Pr. 3 R. S., § 4S1, Subdiv. 4. 
 436.
 
 PROCESS. 153 
 
 ters of record, and, while it is not necessary that they should 
 always be copied into the order book or entry docket, they 
 must be duly placed among the files in the cause. It seems 
 from the decisions elsewhere, and from the rules which prevail 
 in analogous cases, that where notice is issued and served be- 
 low, the notice and proof of service should, in strictness, appear 
 in the transcript. 1 It is probable, however, that the liberal rule 
 which prevails in this state would sustain an appeal if the ap- 
 pellant should file with the transcript the notice of appeal and 
 proof of service, but the safe method, and the proper one, is to 
 cause the notice and proof of service to be embodied in the 
 transcript certified to the appellate tribunal, in all cases where 
 the appeal is taken by notice given below. It is in general 
 true, that jurisdiction in cases of appeal must affirmatively ap- 
 pear from the record. This is illustrated by the numerous cases 
 which hold that where the order for appeal must be made in 
 the trial court the record must contain the order. It is also il- 
 lustrated by our cases which assert that in appeals from inter- 
 locutory orders the record must affirmatively show that the steps 
 required by statute in such cases were duly and timely taken. 
 
 § 181. Service of Notice on Co-parties — The mode of making 
 proof of service upon co-parties is not specifically prescribed, 
 but under the rule that like principles will be extended to like 
 cases, — for "like reason doth make like law," — there can be 
 little doubt that service may be made and proved as in cases 
 where the parties are adverse. The practice has been to give 
 notice substantially as in cases of adverse parties, and this long 
 continued practice may well be deemed to establish the law. 
 As to the time and all like matters the rule as to notifying ad- 
 verse parties may be safely accepted as the guide. There 
 seems to be no provision for notifying co-parties below, but we 
 can see no reason why, upon general principles, all may not 
 there be served with process. Any other conclusion would 
 produce discord and confusion, since it would result in an ap- 
 peal as to some of the parties being taken in one mode, and as 
 to other parties in another and different mode. 
 
 1 Whipley f. Mills, 9 Cal. 641; Franklin v. Reiner, S Cal. 340; Hildreth v. 
 Gwindon, 10 Cal. 490.
 
 154 
 
 APPELLATE PROCEDURE. 
 
 § 182. Objections to Process — Objections to process must be 
 seasonably and specifically made or they will be deemed 
 waived. A general appearance, a joinder in error, an agree- 
 ment to submit, or the filing of a general brief will waive ob- 
 jections. In short, any act constituting an appearance will 
 preclude a party from subsequently challenging the sufficiency 
 of the notice. 1 
 
 § 183. Constructive Notice — The usual mode of serving process 
 is that denominated personal service, and where no provision is 
 made by law for a different mode personal service is required. 
 Where notice by publication is the only notice that can be given 
 the provisions of the statute upon the subject must be substan- 
 tially followed." Our statute requires an affidavit that the party 
 is not a resident of the state and that a notice can not be served 
 upon the attorney of record below.' 5 The proper practice is to 
 file the affidavit in the appellate tribunal and there obtain an 
 order for the publication. If the affidavit or notice is not so 
 defective as to be an absolute nullitv, the order of the court 
 will be effective although the affidavit or notice may not com- 
 ply with the statute, but this rule will not prevail where ob- 
 jections are specificallv and seasonably interposed. 4 Even as 
 
 1 State v. Hattabough, 66 Ind. 223; 
 State v. Walters. 64 Ind. 226; Peoples' 
 Savings Bank v. Finney, 63 Ind. 460; 
 Critchell v. Drown, 72 Ind. 539; Archey 
 v. Knight, 61 Ind. 311; Beck v. State, 
 72 Ind. 250; Truman v. Scott, 72 Ind. 
 j^S; Ridenour v. Beekman, 68 Ind. 236; 
 Field V. Burton. 71 Ind. 380; First Na- 
 tional Bank v. Essex, 84 Ind. 144; Hen- 
 dricks v. Frank. 86 Ind. 278; Bolin 
 Howell, 93 Ind. 329; Martin v. Orr, 96 
 Ind. 491; Dobbins v. Baker, So Ind. 52; 
 er v. Acklemire, Si Ind. 1 63 ; 
 Walker v. Hill, 11 1 Ind. 223; Bender 
 -. W ampler, 84 Ind. 172; Etter v. An- 
 derson, 84 Ind. 333; Burk v. Simonson, 
 
 E. Rep. 793; Essig v. Lower, 120 Ind. 239, 
 21 N. E. Rep. 1090; Kleyla v. Haskett, 
 112 Ind. 515, 14 N. E. Rep. 387; Pick- 
 ering V. State. 106 Ind. 228, 6 N . E. Rep. 
 611; Field v. Malone, 102 Ind. 251; 
 Quarl :'. Abbett, [02 Ind. 233; Dowell 
 v. Lahr, 97 Ind. 146; Carrico v. Tar- 
 water, 103 Ind. S6. The general doc- 
 trine was correctlv laid down in Trew 
 v. Gaskill, in Ind. 205, and Dronillard 
 v. Whistler, 29 Ind. 552, as Well as in 
 the later cases, but it was departed from 
 in Fontaine v. Houston, 5S Ind. 316; 
 Brenner v. (.Juick, SS Ind. 546, and Viz- 
 zard v. Taylor, 97 Ind. 90. It is evident 
 that these last named cases can not be 
 
 104 Ind. 173: Richard Green, 130 sustained without overruling a long 
 
 U S. 104. See, ante, § 175, n. 3. line of cases extending as far back, at 
 
 * Galpin v. Page, [8 Wall. 350, 369. least, as the case of Evansville, etc., Co. 
 3 R. S.. § 651. v. City of Evansville, 15 Ind. 395. 
 
 * Goodell V. Starr. 127 Ind. [98, 26 N.
 
 process. 155 
 
 against a direct and seasonable attack immaterial or formal de- 
 fects will not avail, for mere formal or unimportant defects in 
 notice by publication will not vitiate. 1 An order for publication 
 is essential, 2 but we suppose that if the court should act upon 
 the notice on the presentation of the proof of publication the 
 order then made would be valid as against a collateral attack. 
 Where there is a seasonable and direct attack upon the affida- 
 vit and notice it will prevail if there is an omission of some 
 material matter required by the statute. 3 If the notice should 
 be insufficient a second notice may be given, provided the time 
 designated for perfecting the appeal has not expired, and even 
 if the time has expired the court may relieve the appellant if 
 fraud or accident is clearly shown and it is made to appear that 
 no fault of his contributed to render the notice ineffective. The 
 principle which we have elsewhere stated and discussed justifies 
 this conclusion, inasmuch as all courts of general superior juris • 
 diction have power to relieve an innocent and meritorious party 
 from injury because of fraud or accident. 4 But, as we have 
 said, a party who invokes the exercise of this power must make 
 a strong and clear case, otherwise the ordinary rules of proced- 
 ure must prevail. As such an application asks extraordinary 
 relief and proceeds upon the theory that the case is one appeal- 
 ing to the equity power of the court facts must be alleged which 
 
 1 Harris v. Clafflin, 36 Kan. 543, 13 Rep. 576. But other courts take a more 
 Pac. Rep. 830; United States, etc., Co. liberal view of the subject and lav down 
 ». Martin, 43 Kan. 526, 23 Pac. Rep. 586; a rule substantially the same as that 
 Lane v. Innes, 43 Minn. 437. 45 N. W. adopted by our own court. Ligare v. 
 Rep. 4. Some of the cases, however, re- California, etc.. Co., 76 Cal. 610, iS Pac. 
 quire great strictness in cases of the Rep. 777; Bogle t\ Gordon, 39 Kan. 31, 
 publication of notice. Freeman v. Haw- 17 Pac. Rep. S57; Allen v. Ray, 96 Mo. 
 kins, 77 Tex. 49S, 14 S. W. Rep. 364; 542, 10 S.W. Rep. 153; Elting v. Gould, 
 Colton v. Rupert, 60 Mich. 31S, 27 N. 96 Mo. 535, 9 S. W. Rep. 922. 
 
 W. Rep. 520. i As elsewhere said, the term " acci- 
 
 2 Frisk v. Reigelman, 75 Wis. 499, 43 dent," as used in decisions upon ques- 
 N. W. Rep. 1 1 17. tions of procedure, means much more 
 
 3 Some of the courts declare that a than it does when used in ordinary 
 slight departure from the statute will matters, for the signification assigned 
 vitiate the notice. Feikert v. Wilson, it is substantially that which the courts 
 38 Minn. 341, 37 N. W. Rep. 585; Ad- of chancery gave it. 
 
 erson v. Marshall, 7 Mont. 2SS, 16 Pac.
 
 156 APPELLATE PROCEDURE. 
 
 make a case requiring the exercise of the power under which 
 courts of equity grant relief from fraud and accident. 
 
 § 184. Proof of Publication — Proof of the publication must be 
 made substantially as the statute provides. The printed notice 
 must appear as published or the proof will be insufficient, for 
 without a copy of the published notice there can not be a sub- 
 stantial compliance with the statute. The affidavit of publica- 
 tion may be made by the printer, his foreman, his clerk, or "by 
 any competent witness." l It is evident that the term " compe- 
 tent witness" is employed in a somewhat restricted sense, for, 
 taking it in connection with the specifically enumerated classes, 
 it must be deemed to mean one who has a competent knowledge 
 of the fact of publication. 2 The affidavit should show that the 
 person who makes it has such a connection with the newspaper 
 in which it was published as to enable him to acquire a knowl- 
 edge of the time and mode of publication. 3 The proof should 
 state that the publication was made each week for the requisite 
 number of weeks. 1 The last publication must be complete the 
 designated number of days prior to the hearing, but it is not 
 necessary that there should be four insertions of the notice. 5 
 
 § 185. Amendment of the Proof of Notice — In the proper case 
 and upon due application the proof of publication may be 
 amended, but there can be no amendment unless the facts 
 which justify it are affirmatively shown. An amendment can 
 not ordinarily be made as of course, but leave must be obtained. 
 In accordance with the general rule that a party who asks leave 
 
 1 R. S., § 4S1, subdivision 3. Indianapolis National Bank. 125 Ind. 
 
 2 In an analogous case it was held 3S1; Smith v. Rowles, S5 Ind. 264; 
 that an affidavit made by the book- Rhoadesf. Delaney, 50 Ind. 468; Mere- 
 keeper of the publisher was sufficient, dith v. Chancey, 59 Ind. 466; Carlow v. 
 Andrews v. The Ohio, etc., R. Co.. 14 Aultman, 2SNeb.672,44N.W.Rep.873. 
 Ind. 169. As to the character of the newspaper 
 
 v. Wilson, 52 Ark. 312. 12 S. in which notice may be published, see, 
 
 W. Rei>. 576. Railton v. Lander. 126 111. 219, iSN.E. 
 
 ' Fisk v. Reigleman, 75 Wis. 499, 43 Rep. 555: Fisk v. Reigleman, 75 Wis. 
 
 N. W. Rep. 1 1 17. See. Davis v. Rob- 499. 43 X. W. Rep. n 17; Shaw v. Wil- 
 
 inson, 70 Texas, $94, 7 S. W. Rep. 749. liams, S7 Ind. 15S. 
 
 ' Security, etc., Co. v. Arbuckle, 123 8 Hackett v. Lathrop, 36 Kan. 661, 14 
 
 Ind. 518, 24 X. E. Rep. 329; Horn v. Pac. Rep. 220.
 
 PROCESS. 157 
 
 to make an amendment must show cause, a party asking to 
 amend the proof" of publication should show sufficient cause for 
 his application. In order to do this it is generally necessary 
 to show a reasonable excuse for the mistake in the original 
 proof of notice. Courts ordinarily require one who asks leave 
 to correct a mistake in process to show that the mistake was 
 not attributable to his own culpable negligence.
 
 CHAPTER IX. 
 
 THE RECORD AND TRANSCRIPT. 
 
 Appeals are tried by the record. 
 [87. Record can not be made by 
 agreement. 
 
 Remedying defects in the tran- 
 script by agreement. 
 
 The difference between the rec- 
 ord and the transcript. 
 
 The record of the trial court. 
 
 Direct and collateral motions. 
 
 Adding to the intrinsic record 
 by special order. 
 
 Special cases — Default, ques- 
 tions upon instructions. 
 
 194. The record on appeal. 
 
 195. Transcript — Requisites of. 
 
 iSS. 
 
 IS9. 
 
 190. 
 
 191. 
 
 I i)2. 
 
 io 3- 
 
 § 196. What the transcript should con- 
 tain — Generally. 
 
 197. Independent cases can not he in- 
 cluded in one transcript. 
 
 19S. Matters embraced in an appeal. 
 
 [99. Practice where transcript con- 
 tains improper matter. 
 
 200. Directions to the clerk — Pre- 
 
 cipe. 
 
 201. Authentication of the transcript. 
 
 202. Constituent parts of the record 
 
 as prescribed by the statute 
 
 203. Authority of the appellate tri- 
 
 bunal over the transcript. 
 
 204. Marginal notes. 
 
 § 186. Appeals are tried by the Record — The transcript is the 
 source from which appellate tribunals obtain their knowledge 
 of the facts involved in the controversy between the parties be- 
 fore them, as well as the source from which they derive their 
 knowledge of the questions upon which it is their duty to pro- 
 nounce judgment. The reports contain many cases where par- 
 ties acted as if they were ignorant of this principle, 1 and this 
 excuses the statement of a principle so plain as to scarcely ex- 
 cuse its expression in words. The courts have again and again 
 adjudged that appeals are heard upon the record and by the 
 
 1 Columbus, etc., R. R. Co. v. Gibbs, Spangler -'. San Erancisco. S4 Cal. 12, 
 
 -t So Clark v. Wright, 24 So. State v. Adamson (Minn.). 45 N. W. 
 
 Car. 526; Hyatt v. Wolfe, 22 Mo A.pp. Rep. 152; Gibbons v. Van Alstyne, 
 
 191; Burton v. Ferguson, 69 Ind. 486, 56 Hun. 639, 9 N. Y. Supp. 156; 
 
 I90; Stegman v. Berryhill, 72 Mo. 307; McArthur v. Schultz, 78 Iowa, 364, 43 
 
 Rigler v. Rigler, 120 Ind. 431, 433; N. W. Rep. 223. 
 
 (158)
 
 THE RECORD AND TRANSCRIPT. 
 
 159 
 
 record determined. 1 The principle is often thus expressed, 
 " errors must be manifest on the face of the record.'" It is the 
 duty of the party who asks an appellate tribunal to reverse the 
 judgment of a trial court to bring to the higher court " a perfect 
 record." 3 The record as embodied in a properly prepared and 
 duly authenticated transcript imports absolute verity, 1 and can 
 not be aided, varied, or contradicted by extrinsic evidence. 5 
 The record can not be contradicted by a plea in the appellate 
 tribunal. 6 For what is done in the trial court the Supreme 
 Court " will look only to the transcript of its record." If the 
 transcript does not contain all that is essential to show error 
 the appeal will fail, since errors will not be presumed to exist, 
 and a radically imperfect transcript can not show error. 7 
 
 § 187. Record can not be Made by Agreement — Records upon 
 which appellate tribunals try appeals must be founded upon 
 proceedings actually had in a trial court, and parties can not 
 make a record by agreement where no such proceedings have 
 been had." The principle which prohibits the considera- 
 
 1 McCardle v. McGinley, S6 Ind. 538; 
 Wishmier v. State, no Ind. 523; Hei- 
 zer v. Kelley, 73 Ind. 5S2; Vanderkarr 
 v. State, 51 Ind. 91; Board v . Slatter, 
 52 Ind. 171; Mull v. McKnight, 67 Ind. 
 525; Combs v. State, 75lnd. 215; Mitch- 
 ell v. Stinson, 80 Ind. 324; Seager 
 v. Aughe,97 Ind. 2S5; Keesling v. Ryan, 
 S4 Ind. 89; Baker v. Loring, 65 Mo. 527; 
 Handlan v. McManus, 100 Mo. 124, S. 
 C. iS Am. St. Rep. 533; State v. Potts, 
 20 Nev. 3S9, 22 Pac. Rep. 754; Arcia v. 
 State, 2S Tex. A pp. 198. 
 
 2 Hudson v. Densmore, 68 Ind. 391; 
 McCormack v. Earhart, 72 Ind. 24; 
 Martin v. Martin, 74 Ind. 207; Craw- 
 ford v. Anderson (Ind.), Sept. 17, 1S91, 
 28 N. E. Rep. 314. 
 
 3 Collins v. United States Express 
 Co., 27 Ind. n; Fellenzer v. Van Val- 
 zah, 95 Ind. 128; Campbell v. Allen, 61 
 Mo. 581; Morningstar v . Musser (Ind.), 
 Nov. 3, 1S91. 
 
 4 Wells v. Lea, 20 Mo. App. 352; 
 
 Walls v. Anderson, etc., R. R. Co., 60 
 Ind. 56; Meredith v. Lackey, 14 Ind. 
 529; Beavers v. State, 5S Ind. 530; 
 Thames Loan, etc., Co. v. Beville, 100 
 Ind. 309. 
 
 5 Wishmier v. State, no Ind. 523, 
 526; Justice v. Justice, 115 Ind. 201; 
 Louisville, etc., Co. v. Boland, 70 Ind. 
 595; Du Souchett v. Dutcher, 113 Ind. 
 249; Evans v. Schafer, SS Ind. 92. 
 
 6 Lewis v . Prenatt, 24 Ind. 9S. The rec- 
 ord can not be contradicted by certifi- 
 cate of officers. Travwick v. Martin 
 Brown Co., 74 Tex. 522, 12 S. W. Rep. 
 216. See Mitchell v. Stinson, So Ind. 
 
 3 2 4- 
 
 7 Miles v. Jennings, 6 Mo. App. 5S9; 
 Bain v. Goss, 123 Ind. 511. 
 
 8 Board v. Newman, 35 Ind. 10; Whit- 
 man -». Weller, 39 Ind. 515; Lane v. 
 Dorman, 3 Scam. (111.) 238. S. C. 36 
 Am. Dec. 543; Spangler v. San Fran- 
 cisco, 84 Cal. 12, S. C. iS Am. St. Rep. 
 15S; State v. Burns, 14 Mo. App. 5S1;
 
 160 APPELLATE PROCEDURE. 
 
 tion of fictitious cases is violated where a record has no other 
 foundation than the agreements or stipulations of litigants. As 
 it is in the inception of the case, so it is on appeal ; there must 
 be more than a feigned controversy. 1 The transcript upon 
 which the appellate tribunals act must be that of a record made 
 by a trial court. 
 
 § 188. Remedying Defects in Transcript by Agreement — While 
 the general rule is that the record, and not the agreement of 
 the parties, must present the case to the appellate tribunal for 
 review, nevertheless defects or omissions in a transcript may 
 be remedied or supplied by agreement. 2 This, however, does 
 not break in upon the general rule, for the theory is that stipu- 
 lations amending the transcript on appeal, or supplying omis- 
 sions therein, are founded upon the record actually made in 
 the trial court. It is not implied in permitting corrections 
 and amendments in that mode that an original record may be 
 made on appeal, but the implication is that such amendments 
 or corrections are necessary to truthfully exhibit the rulings and 
 proceedings of a trial court in an actual case. 3 Nor is the rule 
 impinged upon by the cases which hold that parties may by 
 agreement limit the controversy to designated questions, for the 
 agreement in such a case brings nothing into the record al- 
 though it may have the practical effect to exclude some matters 
 from it. 
 
 § 189. The Difference between the Record and the Transcript — 
 
 There is a difference between the record and the transcript, al- 
 though the words "record" and "transcript" are often used 
 
 Mister v. Corrigan, 17 Mo. App. 510; ' See, ante, Fictitious Cases. 
 
 Mangels v. Mangels, S Mo. App. 603; 2 Truitt v. Truitt, 3S Ind. 16, 21. 
 
 St. Louis v. Mi^ouri. etc., Co., 12 Mo. 8 Glenn v. Fant, 134U.S.39S; Hard- 
 
 App. 576; Oder v. Commonwealth, 80 ing v. Brophy (111.), 24 N. E. Rep. 558; 
 
 Ky. 32. See, Saxon v. State, 116 Ind. Hill v. First Nat. Bank, 42 Kan. 364, 
 
 6; Crane v. Farmer, 14 Col. 294, 23 Pac. 22 Pac. Rep. 324; McKenzie v. Ballard, 
 
 Rep. 455; Planters Ins. Co. -'.Cramer, 14 Col. 426, 24 Pac. Rep. 1; Phila- 
 
 •7 Mi— 200; Marbury v. Madison, i delphia, etc., Co. v. Shipley, 72 Md. SS, 
 
 C ranch, 137; Gillis v. Martin, 2 Dcr. 19 Atl. Rep. 1. See, ante, " Record can 
 
 Eq. 470, S. C. 25 Am. Dec. 729; Good- not be made by agreement." § 1S7. 
 wine V. Crane. 41 Ind. 335.
 
 THE RECORD AND TRANSCRIPT. ]t,\ 
 
 interchangeably. It is, perhaps, not always an inaccurate use of 
 the word "record"' to employ it as signifying the transcript 
 certified by the clerk of the inferior court to the superior tri- 
 bunal, but, nevertheless, there is a difference between the record 
 and the transcript. Original papers and entries do not come 
 up on appeal, 1 except in peculiar and very rare cases. The 
 elements of the record are, the pleadings, rulings, entries and 
 the like, filed, made and recorded in the trial court, whereas 
 the transcript is, what the term denotes, a copy of such papers, 
 instruments and entries. The one is original, the other is that 
 which is transcribed, or copied, from the original. 2 The tran- 
 script, it is true, exhibits the original proceedings and records 
 them, but it records them by copying or transcribing. While 
 it is not always important to observe the distinction between the 
 transcript and the record it is often necessary to do so in order 
 to avoid confusion. 
 
 § 190. The Record of the Trial Conrt — The record made in 
 the trial court is the foundation of the subsequent proceedings. 
 What is not there of record can not be put of record on appeal, 
 as part of the trial court proceedings. It is one thing to amend 
 the transcript and quite another to change the record made by 
 the trial court. We are not unmindful of the rule that the 
 record itself may be amended by a nunc fro tunc entry, but the 
 right to such an entry rests upon the theory that the act or rul- 
 ing sought to be entered on the order book was actually done 
 or made, and that it was by mistake not properly evidenced. 
 It is what the trial court acts upon, and what it does or refuses 
 to do, that creates the elements out of which the record is con- 
 structed. Entries by the clerk of orders or rulings of the court 
 are legitimate parts of the record, but unofficial minutes and 
 statements do not constitute parts of the record of the court. 3 
 Pleadings, proper, are part of the record, and within this rule 
 
 1 Cox v. Macy, 76 Iowa, 316; Mitchell • 3 Vanderkarr v. State, 51 Ind. 91; 
 v. Stinson, So Ind. 324. Board v. Slatter, 52 Ind. 171; Mull v. 
 
 2 Dearborn r. Patton, 4 Ore. 5S, 60. McKnight, 67 Ind. 525; Lewis v. God- 
 See, generally, Davidson v. Murphy, 13 man (Ind.), 27 N. E. Rep. 563. Sec 
 Conn. 213, 217; Danes v. Pettit, 11 generally, State v. McKee, 109 Ind. 497; 
 Ark. 349, 355. Clarke v. Kane. 37 Mo. App. 25S. 
 
 11
 
 102 
 
 APPELLATE PROCEDURE. 
 
 are direct motions or motions of course, but collateral motions 
 arc not. 1 Thus a motion to strike out a pleading is not in the 
 record where there is no bill of exceptions or order of court, 
 but a motion for a new trial is a direct motion, and hence part 
 of the record. 2 But it is only the motion proper that is part of 
 the record ; affidavits, or recitals of extrinsic matters, tiled with 
 or contained in the motion, are not part of the record unless 
 made so by bill of exceptions or special order. 3 A motion for 
 a change of venue is a collateral motion and not intrinsically a 
 part of the record, 1 although, of course, it may be made so by 
 bill of exceptions. It has been held that a motion for judgment 
 upon the pleadings is not properly and directly a part of the 
 record. Substituted pleadings, when the substitution is ordered 
 by the court, are part of the record ; if not so ordered, they are 
 not."' Motions to suppress depositions are collateral motions, 
 and can only get into the record by bill or order/' A motion to 
 rescind an order remanding a case to the court from which a 
 
 1 Washington Ice Co. v. Lay, 103 Ind. 
 p. Burntrager v. McDonald, 34 Ind. 
 j 77 . Ferrier v. Deutchman, 51 Ind. 21; 
 Orr v. Worden, 10 Ind. 553; Board :•. 
 Montgomery, 109 Ind. 69; Jarvis v. 
 Banta, S3 Ind. 52S; Merritt v. Cobb, 17 
 Ind. 314. It would seem, on principle, 
 that a motion to strike out a pleading 
 or to make more specific is a direct mo- 
 tion and intrinsically part of the record, 
 but the contrary doctrine has long pre- 
 vailed. Merritt :•. Cobb, supra; Kibby 
 V. Cannon. 9 Ind. 371; Shaw v. Bink- 
 ard, 10 Ind. 227; Murphy O.Tilly, 11 
 I ml. 511; Greensburgh, etc., Co. v. 
 Sidener, 40 Ind. \i\. School Town 
 v. Gebhart, 61 Ind. 1S7. 
 
 2 Hunter v. Hatfield, 6S Ind. j.16; 
 M trtin v. Harrison, 50 Ind. 270; Hill v. 
 Newman, 47 Ind. 1S7; Nichol v. 
 Thomas, 53 Ind. 42; Jarvis v. Banta, 83 
 Ind. 528; Block v. Ebner, 54 Ind. 544; 
 Schnewind :■. Hacket, 54 Ind. 24S. See 
 Davis v. Binford, 5S Ind. 457; Jenkins 
 v. Corwin, 55 Ind. 21; Moore v. State, 
 
 65 Ind. 213; Cooper t'. Board, 64 Ind. 
 520. 
 
 :t Kleespies v. State, 106 Ind. 383; 
 Shields v. Me Malum, 101 Ind. 591; 
 Harrison School Tp. v. McGregor, 96 
 Ind. 185; Chambers v. Kyle, 87 Ind. S3; 
 Williams v. Potter, 72 Ind. 354. 
 
 4 Johnson -'.Johnson, 115 Ind. 112; 
 Norton v. State, 106 Ind. 163; Ulrich 
 t\ Ilervev, 76 Ind. 107; Cochran v. 
 Dodd, 16 Ind. 476; Horton v. Wilson, 
 25 Ind. 316. See, generally, Kennedy 
 V. State, 66 Ind. ^70; Kesler V. Myers, 
 41 Ind. 543; Cline v. Gibson, 23 Ind. 
 11; Smith v. Smith, 77 Ind. So; Board 
 T 1 . Henson, S3 Ind. 469. 
 
 5 Burkham v. McElfresh, 88 Ind. 223. 
 In Hall v, Durham, 109 Ind. 434, it was 
 held that an entry of the clerk as to the 
 direction given a jury was not neces- 
 sarily a part of the record. 
 
 c Smith v. Kyler, 74 Ind. 575. See, 
 generally, Lucas v. State, S6 Ind. 1S0; 
 Long v. Town of Brookston, 79 Ind. 
 1S3.
 
 THE RECORD AND TRANSCRIPT. 1(_;3 
 
 change of venue was taken is not inherently part of the record. 1 
 Motions to tax costs, to set aside rules to plead, and the like, 
 are not properly parts of the record, because they are collateral 
 motions. 2 To the class of collateral motions belongs a motion 
 to submit a case to a jury for trial. 3 Many cases held that a 
 motion for a judgment on answers to interrogatories returned 
 by a jury was a collateral motion, but they are overruled by the 
 later cases. 4 
 
 § 191. Direct and Collateral Motions — A direct motion may be 
 roughly defined to be a motion of course, immediately relating 
 to and founded upon matters of record, 5 while a collateral 
 motion may be said, in general terms, to be a motion not in clue 
 course, but a special motion directed to matters not of record, 
 although legitimately connected with matters of record. It 
 seems, on principle, that a direct motion based exclusively upon 
 matters appearing of record, needing no extrinsic matters to aid 
 it, and determinable upon a bare inspection of the record, 
 should be deemed necessarily and intrinsically a part of the 
 record, not requiring a special order or a bill of exceptions to 
 make it a part of the record proper. But, in view of the long 
 line of decisions, it would be unsafe to act upon this principle. 
 The doctrine deducible from the adjudged cases, we say with 
 regret, is that almost all motions, whether founded entirely on 
 matters of record or not, are collateral motions. This doctrine 
 has resulted in overloading records and creating confusion 
 without producing any corresponding benefit. It is, however, 
 too firmly settled to be changed otherwise than by legislation. 
 The safe course, therefore, is to incorporate all motions and the 
 grounds on which they rest in a bill of exceptions, or else se- 
 
 1 Sidener v. Davis, S7 Ind. 342. cases. Monroe v. Adams Ex. Co., 65 
 
 2 Clodfelter v. Hulett, 92 Ind. 426; Ind. 60; Salander v. Lockwood,66 Ind. 
 Hadley v. Hadley, S2 Ind. 95; Beard 285; Terre Haute, etc., Co. v. Clark, 73 
 v. Hand, SS Ind. 183; Gallimore v. Ind. 16S; Campbell v. Dutch, 36 Ind 
 Blankenship, 99 Ind. 390; Redenbo v. 504; Shaw v. Merchants National 
 Fretz, 99 Ind. 45S; Nicholls v. State, Bank, 60 Ind. 83. 
 
 65 Ind. 512. 5 Pratt v. Rice. 7 Nev. 123; United 
 
 3 Hauser v. Roth. 37 Ind. S9. States v. Parrott, McAll (U. S.). 447; 
 
 4 Redinbo v. Fretz, 99 Ina. 458. Freshour v. Logansport, etc., Co., 104 
 There was conflict among the earlier Ind. 463.
 
 164 APPELLATE PROCEDURE. 
 
 cure an order of court making them parts of the record, unless 
 they are such as have been expressly adjudged not to be col- 
 lateral motions. If the decisions are to be followed to their 
 logical result, few motions, indeed, can be deemed an)- other 
 than special or collateral. The tendency of the decisions is to 
 multiply collateral or special motions and to restrict the number 
 of direct motions, so that where there is doubt it is safest to 
 embody the motion in a bill of exceptions. 
 
 § 192. Adding to Intrinsic Record by Special Order — A record 
 may be added to by an order of the court directing that instru- 
 ments of evidence, or the like, not intrinsically or necessarily 
 parts of the record, shall be made part of the record. 1 The 
 statute requires an order of the court in the nature of a special 
 order, and without such an order instruments of evidence, in- 
 structions, or the like, can not be regarded as in the record 
 unless, of course, brought in by a bill of exceptions. It is 
 necessary that the court should make the order. An entry by 
 the clerk where there is no order would be destitute of force. 
 The settled rule is that the unauthorized entries of the clerk 
 and recitals interpolated by him go for nothing. 2 It is, there- 
 fore, necessary in every instance that there should be an order 
 by the court, and, regularly, this order should be recorded by 
 the clerk. 
 
 § 193. Special Cases — Defanlt — Questions upon Instructions — The 
 
 statute makes provisions of a peculiar nature for preparing the 
 record in special cases. Two of these cases we shall here 
 
 1 They may, of course, be made part of 52 N. J. L.259, 19 Atl. Rep. 258; People 
 
 the record by a proper bill of exceptions. : p . Beaver,83 Cal. 419,23 Pac. Rep. 321; 
 
 Plank 7'. Jackson I nil.), 27 \. E. Rep. Tennessee, etc., Co. v. East Alabama, 
 
 1117. But we are here speaking of add- etc., Co., Si Ala. 94; Sutherland v. 
 
 ing to the record proper by an order of Putnam (Ariz.), 24 Pac. Rep. 320; 
 
 uirt. Clarke v. Kane, 37 Mo. App. 258; Baker 
 
 'Young Martin, 8 Wall. 354; Hall v; Swift, 87 Ala. 530, 6 So. Rep. 153; 
 
 irham, 109 Ind.434; Olds v. Deck- People v. O'Brien, 7S Cal. 49, 20 Pac. 
 
 man, 98 Ind. 162; Kesler v. Myers, 41 Rep. 359; Gould v. Howe, 127 111. 251; 
 
 Ind. 543; Hasselback v. Linton, 17 Ind. Chicago, etc., Co. v. Yando, 127 111. 
 
 545; Vanderkarr v. State, 51 Ind. 91; 214; Bowen v . Fox, 99 N. C. 127, 5 S. 
 
 Board v. Slatter, 52 Ind. 171; Mull v. E. Rep. 437; Watson v. Common- 
 
 Mi Knigl ' 525; State v. Acker, wealth, 85 Va. S67, 9 S. E. Rep. 41S.
 
 THE RECORD AND TRANSCRIPT. 
 
 notice ; others will be elsewhere considered. The first of the 
 cases we shall here consider is that wherein a judgment is ren- 
 dered by default. We may preface our discussion of the special 
 case mentioned by saying that where there is an appearance 
 the summons need not be made part of the record. 1 It is obvi- 
 ous that while the appellant is not obliged to cause the summons 
 to be brought into the record by order or by bill of exceptions 
 in a case where there is an appearance, he may do so even in 
 such cases where he desires to present a question upon the writ 
 or its service. 2 Indeed, he must do so or no question of the 
 kind will be'presented. But where there is a default the sum- 
 mons must be deemed an elemental or intrinsic part of the 
 record. 3 The other special case to which we refer is that of ap- 
 peals upon questions presented by the instructions. 4 The object 
 of the statute is clear, for it can not be doubted that it was in- 
 tended to enable parties to present questions upon instructions 
 without cumbering the record with a mass of evidence. The 
 statute is remedial and hence should be liberally construed. 
 By its rules and by its decisions the Supreme Court has en- 
 deavored to give the statute a practical and liberal construction. 5 
 But liberal as the rule should be, it can not^ without a violation 
 of principle, be so extended as to permit a party to appeal un- 
 der one statute and subsequently invoke the benefit of another 
 and different one. 6 In preparing the record for an appeal upon 
 instructions a bill of exceptions is necessary, and in the bill these 
 
 1 This is the direction of the statute, the modifications thereof, it shall not be 
 R. S., § 650. This provision refers to necessary to set out in the record all 
 records for appeals and probably can the evidence given in the cause, but it 
 not be considered as a provision cover- shall be sufficient in the bill of excep- 
 ing all cases, as for instance cases where tions to set out the instructions or 
 a complete record is required. But modifications excepted to, with the re- 
 this is aside from our discussion, and cital of the fact that the same were ap- 
 we simply make a suggestion; we give plicable to the evidence in the cause.'" 
 no opinion. 5 Rule XXX; Mercer v. Corbin. 117 
 
 2 Cincinnati, etc., Co. v. Heim, 97 Ind. 450; Jones v. Foley, 121 Ind. 1S0; 
 Ind. 525. Shugart v. Miles, 125 Ind. 445; Shewal- 
 
 3 Woods v. Brown, 93 Ind. 164. ter v. Bergman, 123 Ind. 155, 158; Me-- 
 
 4 The statutory provision is this: Coy v. Trucks, 121 Ind. 292. 
 
 "• When in any case an appeal is prose- 6 McCoy v. Trucks, 121 Ind. 292; 
 cuted upon the question of the correct- Shewalter v. Bergman, 123 Ind. 155. 
 ness of instructions given or refused or
 
 1 Go APPELLATE PROCEDURE. 
 
 ential matters should appear: i. The request for written 
 instructions. 2. The instructions given and refused, and, if 
 modified, the modifications. 3. The exceptions. 4. A state- 
 ment that there was competent evidence material to the point 
 covered by the instructions tending to support the theory of the 
 party who excepts. The statement that there was evidence 
 material to the point or points covered by the instructions 
 should be definite and clear ; it should not only show that there 
 was competent and material evidence but it should show, also, 
 that the evidence tended to sustain the theory of the party. 
 All the instructions given should be incorporated in the bill, 
 since instructions are to be considered as an entirety, and where 
 instructions are refused it is necessary that all given should be 
 in the record, otherwise the presumption will be that those re- 
 fused were covered by those given. The instructions as asked 
 should appear as they were originally written, and so must the 
 modifications where the attack is based upon the action of the 
 court in modifying the instructions. The request should appear 
 and be so fully stated as to show that it w-as in due form and 
 submitted at the proper time. The exceptions must be shown, 
 and, of course, shown to have been properly and seasonably 
 taken and well reserved. It is safe and, certainly, not improper, 
 to notify the trial court that the record is to be made up under 
 the statute. We hardly need add that the pleadings must be 
 exhibited in the transcript and the proper motion for a new trial 
 must be duly made and shown by the record. An appeal upon 
 the instructions is in many respects similar to an appeal in cases 
 where questions of law are reserved under the statute. 1 There 
 are, however, some important differences. Appeals under the 
 statute governing appeals in cases of reserved questions of law 
 are not confined to questions arising upon instructions, while 
 the statutory provision giving appeals upon instructions is re- 
 stricted to questions presented by the instructions. Where 
 questions of law are reserved under the statute authorizing it, 
 the party who appeals must notify the trial court that he intends 
 to appeal upon the questions of law reserved and upon a bill 
 
 1 R. S.. § 630. It is evident that plicable where the appeal involves only 
 much, but not all, that is decided in rulings upon instruct] 
 irl v. Miles, [25 Ind. .445, is ap-
 
 THE RECORD AND TRANSCRIPT. 167 
 
 of exceptions, whereas no such requirement is made in the 
 statute which declares what the record shall be where the ap- 
 peal is from rulings upon instructions. What the record shall 
 embrace in the latter case is declared by the statute directly, 
 while in the former there is no explicit direction as to what the 
 record shall contain. There is, however, a direction as to what 
 the court shall do. 
 
 § 194. The Record on Appeal — When the transcript comes into 
 the appellate tribunal it may properly be regarded as a part of 
 the record of that court. It becomes such by being certified 
 and filed there in all cases where such steps are taken as con- 
 fer jurisdiction. But, while the transcript may be regarded as 
 part of the record of the court to which the case is appealed, it 
 is by no means all of the record. Notices, orders, and the like, 
 given and made on appeal, are essential parts of the record of the 
 appellate tribunal. Of its records that tribunal has the custody 
 and over them it has exclusive control. This must necessarily be 
 so, since if it were otherwise the court could not be independ- 
 ent, nor could it properly perform its functions. Whatever re- 
 lates to the record on appeal is matter for the consideration of 
 the court having jurisdiction of the appeal, so that if changes 
 or amendments are desired in the record of that court, the ap- 
 plication must be there made. But, as we have substantiallv 
 said, and here repeat to prevent misunderstanding, the record 
 of the trial court remains, and changes in the entries there 
 necessary must be there procured. The transcript does not re- 
 move the original record, although the appeal does remove the 
 case. 1 
 
 § 195. Transcript — Requisites of — The transcript must contain 
 such matters as overcome the presumption in favor of the reg- 
 ularity of the proceedings and rulings of the trial court. 2 
 
 1 Satterlee v. Bliss. 36 Cal. 489, 521; 147; Railsback v. Walke, Si Ind. 409; 
 
 Boston v. Haynes, 31 Cal. 107: Buckman Graves v. Duckwall, 103 Ind. 560; Har- 
 
 "'. Whitney. 24 Cal. 267; Bonds v. ter v. Eltzroth, in Ind. 159, 160; Cline 
 
 Hickman, 29 Cal. 460. 464. See " Effect v. Lindsey, no Ind. 337, 339; Po\\\ 
 
 of the Appeal." Chapter XXIII. State, 87 Ind. 144; Rothrock v. Perkin- 
 
 J Fellenzer v. Van Valzah, 95 Ind. son, 61 Ind. 39; Vanvalkenberg v . Van- 
 
 12S, 131; Bintord v. Minor, 101 Ind. valkenberg, 90 Ind. 433.
 
 168 APPELLATE PROCEDURE. 
 
 It must show error. 1 The record must be complete in itself.- 
 Not only must the presumption which prevails in favor of the 
 rulings of the trial court (and which authorizes the prima facie 
 assumption that the decision appealed from was correct) be 
 overcome, but it must also appear from the record that the rul- 
 ings complained of were prejudicial, or probably prejudicial, to 
 the substantial rights of the appellant, for judgments are not 
 reversed because of immaterial errors, which do no substantial 
 harm to the appellant. 3 
 
 § 196. What the Transcript should Contain — Generally — A tran- 
 script should contain copies of pleadings, instruments and 
 entries which are properly part of the record, " embraced in the 
 appeal," and no others. 1 Instruments, pleadings, entries, or 
 the like should not be copied into the transcript unless they are 
 legitimately a part of the record made by the trial court. If, 
 however, it appears, upon an inspection of the transcript, 
 without reference to extrinsic matters, that any instrument, 
 pleading, or the like exhibited therein is not a proper part 
 of the record, the court, on examination, will disregard it. 
 The court will not act upon matters not properly in the record, 
 if attention be duly directed to the infirmity in the transcript. 
 It is not necessary to move to strike out parts of a transcript 
 
 1 Cleveland, etc., Co. v. Closser, 120 pie, 31 Cal. 662; Gates v. Walker. 35 
 I mi. 348, 364; Crawford v. Anderson Cal. 2S9. 
 
 (Ind.), 2S N. E. Rep. 314; Kiernas v. s Kernodle v. Gibson, 114 Ind. 151, 
 
 Wolff, 56 Hun. 647, 10 N. Y. Supp. 79; 453; Becknell v. Becknell, no [nd. \i\ 
 
 Coburn v: Ames, So Cal. 243, 22 Pac. Stewart v. State, 1 1 1 Ind. 554; Whisler 
 
 Rep. 174; Perkins v. Hay ward, 124 Ind. v. Lawrence, 112 Ind. 229; Keller:'. 
 
 145; Devereux v. Champion Cotton Fitzell, 65 Cal. 87; Dye v. Mann. 10 
 
 Mills, 17 So. Car. 66, 72; Scovern v. Mich. 291; Weir v. Burlington, etc.,Co., 
 
 . 6 Ohio St. 2SS; McGowan v. 19 Neb. 212; Came v. Truman, 103 111. 
 
 Wilmington, etc., Co., 95 N. C. 417; 321; Heymes v. Champlin, 52 Mich. 25; 
 
 elle v. Westchester, etc., Co., 51 McNeal :•. Oats Co., 51 Vt.316; T 
 
 \'t. 4; Ziegler v. Handrick, 106 Pa. v. Pierce, 1 19 Pa. St. 139. See author- 
 
 St. S7; Lett v. Horner, 5 Blackf. 296; itios cited in note 2. See, also, Preju- 
 
 [ndianapolis, etc., Co. v. Herkimer, 46 dicial error, post. 
 
 Ind. 142. * Mitchell v. Stinson, So Ind. 324; 
 
 2 Indiana, etc., Co. r. Keeney, 93 Ind. Burkham v. McElfresh, SS Ind. 223; 
 100; Spangler v. San Francisco, 84 Cal. Dimick v. Campbell, 31 Cal. 238; Mor- 
 12, 18 Am. St. R. 158; Kimball v. Sem- ri> v. Angle. 42 Cal. 236. 240: Douglass 
 
 v. Dakin, 46 Cal. 49, 52.
 
 THE RECORD AND TRANSCRIPT. 169 
 
 because improper entries, instruments or the like are copied, in 
 cases where the record itself fully discloses the grounds of ob- 
 jection, but it is proper to object to the consideration of the 
 illegitimate parts, to point them out, and specifically state the 
 objections. 
 
 § 197. Independent cases can not be included in one Transcript — 
 
 The rule that a transcript must cover one case, and be complete 
 in itself, forbids that several cases should be included in the 
 same transcript. Where there are several independent actions 
 the general rule is that there must be a separate transcript for 
 each action. 1 This rule does not, of course, apply where there 
 is a single action or suit, although there may be many parties 
 and diverse interests, since a suit or action is ordinarily a unit, 
 and as such is to be prosecuted. Nor does the rule prevent the 
 consolidation of cases involving the same questions, and prop- 
 erly constituting a complete action or suit. Nor does the rule 
 operate where the proceedings are blended and the one is sup- 
 plemental to the other. 2 It is not easy to fix specific limits to 
 the rule, but what has been said is an outline of the scope and 
 effect of the doctrine. 
 
 § 198. Matters embraced in an Appeal — The appellant's duty is 
 to bring to the appellate tribunal a transcript of so much of the 
 record as is embraced in the appeal. 3 What is embraced in the 
 appeal must always appear in the transcript, but it is not every 
 instance in which all the rulings, entries, and proceedings are 
 necessarily embraced in an appeal. That the statute does not re- 
 quire that the transcript shall embody all rulings or entries made 
 by the trial court, or all papers there filed, is clear enough, 
 since it is declared that the appellant may direct what the tran- 
 script shall include. 4 The plain implication is that it is not al- 
 ways necessary to make a transcript of the complete record. 
 But while it is true that it is not necessary in every instance to 
 bring to the appellate tribunal a transcript of an entire record, 
 and also true that the appellant may specify what parts of the 
 
 1 Rich v. Starbuck, 45 Ind. 310. v. Alvord, 27 Ind. 495; Vanliew v. 
 
 2 Sanford v. Tucker, 54 Ind. 219. State, 10 Ind. 3S4. 
 s Heizer v. Kelly, 73 Ind. 5S2; Watt * R. S.. § 649.
 
 170 * APPELLATE PROCEDURE. 
 
 record shall be embodied in the transcript, it is, nevertheless, 
 true that the transcript must be full enough to manifest error 
 and to cover so much of the record as is necessarily involved 
 in the appeal. We suppose that if the transcript shows on its 
 face that it covers onlv part of the rulings and proceedings upon 
 a single and independent matter, it would be insufficient. 1 If, 
 for instance, it should show only part of a series of instructions 
 upon a single and indivisible question, it would not be sufficient 
 to authorize a reversal, inasmuch as it would not exclude the 
 presumption that other instructions correctly presented the case 
 to the jury. The pleadings must, in general, be regarded as 
 part of the record embraced in an appeal, since, in their ab- 
 sence, it would not be possible to ascertain what was in con- 
 troversy. 1 ' 
 
 § 199. Practice where Transcript contains improper matter — 
 The rule that no motion to strike out is necessary or proper 
 where the face of the transcript itself exhibits the fact that 
 the parts objected to are not legitimate parts of the record 
 does not apply where the fact does not appear from an in- 
 spection of the record. If the facts appearing from an inspec- 
 tion of the transcript are such as show that instruments, plead- 
 ings, or entries are improperly copied into it, the objection 
 should be made in the brief or argument, the parts of the 
 transcript containing improper matters pointed out and the 
 reasons for the assault upon the transcript succinctly given. 3 
 A motion to dismiss the appeal is not appropriate. 1 Where 
 the transcript does not exhibit the facts essential to show that 
 the transcript contains illegitimate recitals, papers, or plead- 
 ing, a different procedure must be adopted, as ce7-tiorari or 
 the like. Where improper matters are embodied in the tran- 
 script the party blamable may. upon the proper motion, be 
 
 1 We are here speaking of ordinary 8 Longworth v. Higham, 89 [nd. 352. 
 
 Is, and cadi's where a peculiar and 4 Miller v. Shriner, 87 Ind. 141 : ante, 
 
 ial procedure is provided are ex- § [1 
 
 eluded from consideration. 5 Lytic v. Lytic. 37 Ind. 281; Thorn 
 
 7 McCardle v. Mc< i tnd. 538; v. Wilson, 24 Ind. $2$. 
 er v. Aughe, 97 Ind. 285; Sumner 
 . 74 Ind. 293.
 
 THE RECORD AND TRANSCRIPT. 171 
 
 taxed with costs, but such matters, if harmless, will not author- 
 ize an application to amend or correct the record. If matters 
 incorporated in the transcript are injurious they can not, of 
 course, be treated as mere surplusage, so that it is proper for the 
 party prejudiced to ask the court to disregard them in all cases 
 where the record discloses the grounds of the request ; but 
 where they are not so disclosed, an application must be made 
 to correct the transcript by making it conform to the record. 
 If the error or omission is in the record of the trial court it can 
 not be corrected on appeal, but application must be made to 
 the trial court to make the required correction by an order 
 nunc -pro tunc, or in some other appropriate method. 
 
 § 200. Directions to the Clerk — Precipe — The appellant has a 
 right to direct the clerk what part of the record he shall include 
 in the transcript. The directions must be given in writing and 
 the writing must be appended to the transcript. 1 If there is no 
 written direction specifying the parts of the record of which a 
 transcript is to be made it is the duty of the clerk to make a 
 transcript of the whole record, 2 but what shall be considered 
 a complete record in appellate procedure is designated by the 
 statute. The directions to the clerk should be reasonably 
 specific and certain, but a reasonably liberal construction will 
 be given to the preci-pe? If a transcript of the whole record 
 is desired an order in general terms will be sufficient. 
 
 § 201. Authentication of Transcript — The transcript must be 
 authenticated by the clerk by the appropriate certificate. 4 For- 
 
 1 R. S., § 649- as it is the duty of such a party to pre- 
 
 2 Reid v. Houston, 49 Ind. 1S1; Watt sent a transcript making error manifesl 
 v. Alvord, 27 Ind. 495. Where written and showing its prejudicial character. 
 directions are given the clerk must obey the fault is his if the transcript do* 
 them and the party appealing must see conform to the law. If the transcript 
 to it that he does so. Allen v. Gann is defective the court may. at its elec- 
 (Ind.), 29 N. E. Rep. tion, either affirm the judgment or dis 
 
 3 Powell v. Bunger, 91 Ind. 64, 71. miss the appeal. Allen v. Gavin (Ind. . 
 See, generally. Miller v. Shriner, 87 29 N. E. Rep. 
 
 Ind. 141. As the code provides that * Boots r 1 . Griffiths. 97 Ind. 241 : Wal- 
 
 the party who prosecutes the appeal kerf. Hill, m Ind. 223; Conawav v. 
 
 may direct what papers and entries Ascherman, 94 Ind. 1S7. 
 shall be included in the transcript, and
 
 172 APPELLATE PROCEDURE. 
 
 merly a very rigid rule was enforced respecting the authentica- 
 tion of transcripts, but by rules and decisions a more liberal and 
 less technical doctrine has been established. Where the tran- 
 script of the entire record is made, the certificate need only so 
 declare, but where parts only of the record are carried into the 
 transcript the certificate should specify the parts copied. 1 A 
 motion to dismiss because of the insufficiency of the certificate 
 comes too late unless made before the cause is submitted.-' If a 
 party desires to object to the sufficiency of the certificate he 
 should file his motion, specifically stating the grounds of his 
 objection, and give notice. The adverse party may, upon 
 leave, secure an amendment of a defective certificate, but an 
 unreasonable delay may be cause for dismissing his appeal. 3 
 
 ^ 202. Constituent parts of the Record as prescribed by the Stat- 
 ute — The constituent parts of a record are, all proper entries of 
 the clerk, 4 and all papers pertaining to a cause, 5 except the sum- 
 mons, depositions and other instruments of evidence." Collat- 
 eral motions and papers are not part of the record unless made 
 so by an exception or order of court. Pleadings superseded 
 by amendment are not proper parts of the record, 7 nor are 
 pleadings rejected on motion, unless expressly made part of the 
 record in some appropriate method. A motion for a new trial 
 is part of the record in the proper case, as it is not a collateral 
 motion. 8 Where no direction is given to the clerk he should 
 put in the transcript what the statute directs. 9 We have not 
 attempted here to do more than state in a very general way the 
 elemental parts of a record, as we have elsewhere considered 
 the subject at length. 
 
 1 Reid v. Houston, 49 Ind. 1S1. tions. Sec bills of exceptions, post. 
 
 2 Cooper v. Cooper, 86 Ind. 75. 7 R. S., 650; Berghoff v. McDon- 
 B Jackson v. Van Devender, 76 Ind. 27. aid, 87 Ind. 549; Scotten v. Randolph, 
 
 4 R. S., § 650. 96 Ind. 581; Carrothers v. Carrothers, 
 
 5 Mere statements of that officer are 107 Ind. 530. 
 
 not part of transcript. Vanderkarr v. 3 Nichol v. Thomas, 53 Ind. 42; 
 
 . 51 [nd.91; Board v. Slatter, 52 O'Donald v. Constant, S2 Ind. 212. 
 
 Ind. 171; Mull -. McKnight, 67 Ind. Collateral motions are not part of rec- 
 
 525. ord unless specially made so. Jarvis v. 
 
 6 The instruments of evidence mav Banta, 83 Ind. 528. 
 
 be made part of record by bill of excep- ; ' Kirbv v. Cannon. 9 Ind. 371.
 
 THE RECORD AND TRANSCRIPT. 173 
 
 § 203. Authority of Appellate Tribunal over the Transcript— As 
 
 jurisdiction of an appeal carries with it to the appellate tribunal 
 control over all incidents, it follows that if a transcript is altered 
 after it is filed in the appellate tribunal, that tribunal may com- 
 pel the restoration of the transcript to its original condition and 
 may, in the proper case, punish the party who wrongfully makes 
 the alteration. It has been the practice of the court to enter- 
 tain motions to restore a transcript to its original condition, but 
 the cases in which it has been called upon to exercise such 
 authority have been very few. So far as we can discover there 
 is only one decision upon the subject in our reports, and in that 
 decision the authority to dismiss the appeal was assumed to 
 exist, but it was held that as there was no corrupt purpose in 
 changing the transcript the appeal would not be dismissed. 1 It 
 may be well doubted whether it is not the imperative duty of 
 the court to dismiss the appeal unless the party making the 
 alteration clearly exculpates himself by showing that there was 
 nothing more than an innocent mistake. 2 
 
 § 204. Marginal Notes— The appellant must cause the pages 
 and lines of the transcript to be numbered. It is his duty to 
 cause marginal notes to be placed on the transcript in the ap- 
 propriate places, indicating the several parts of the pleadings 
 in the cause, the exhibits, the orders of the court and the bills 
 of exceptions. Where the evidence is contained in the tran- 
 script the names of the witnesses must be given. All motions 
 and rulings, and all instructions given and refused, must be 
 referred to in the marginal notes whenever questions are pre- 
 sented upon them. 3 The requirements of the rule of which we 
 have given a synopsis are important and should be obeyed. It 
 has been said that the absence of marginal notes is "good evi- 
 dence that counsel have not studied the record," and there is 
 much of truth in this statement. The rule does not prescribe 
 what course shall be pursued in the event of a failure to comply 
 with it, and it has not been very strictly enforced by our courts. 
 
 ' Montgomery r.Gorrell, 49 Ind. 230. 3 Rule XXII. 
 1 " Every presumption is made 
 against a wrong-doer."
 
 174 APPELLATE PROCEDURE. 
 
 In some of the cases the court set aside the submission, 1 but this 
 is obviously very seldom a punishment to the appellant. 2 As he 
 is the party in fault — for it is a fault to disobey a rule of court — 
 he should be treated as a delinquent and not dealt with very 
 liberally. In one case it was held that the appellee must make 
 the objection before submission, 3 but this can not be the true 
 rule, inasmuch as the appellee is entitled to a properly annotated 
 transcript in order to prepare his brief. The annotation of the 
 transcript is by no means an unimportant matter, and in man}' 
 jurisdictions the failure to make the proper marginal notes is 
 considered as a cause for dismissal. It is, on principle, the right 
 of the court to dismiss the appeal 1 or to cause notes to be made 
 at the expense of the appellant, and this right is freely exercised 
 by most of the courts. 
 
 1 O'Neil v. Chandler, 42 Ind. 471; 3 Cooper v. Cooper, 86 Ind. 7;: 
 Rhodes v. Piper, 42 Ind. 474; Etter v. Thompson v. Deprez, 96 Ind.67; Bass 
 Armstrong, 42 Ind. 475; State v. Klaas, v. Doerman, 112 Ind. 390; Anderson, 
 42 Ind. 1506. etc., Ass'n v. Thompson, 87 Ind. 278. 
 
 2 As Judge Works says, " But the 4 We are aware that it has been de- 
 right to punish the appellant should cided that the failure to make marginal 
 not be confined to setting aside the sub- notes is not cause for dismissal. O'Neil 
 mission, as appeals are sometimes taken v. Chandler, 42 Ind. 471. But we can 
 for delay, and to set aside the submis- not think that the holding is defen- 
 sion would assist him in this object." sible on principle. 
 
 2 Works Practice, 21.
 
 CHAPTER X. 
 
 CORRECTING AND AMENDING THE RECORD AND TRAN- 
 SCRIPT. 
 
 § 205. The record below and the record § 214. Appeal from the ruling on ap- 
 on appeal. plication for nunc pro tunc 
 
 206. Amendments and corrections of entry. 
 
 the trial court record. 215. Presenting the ruling on appeal. 
 
 207. Effect of an amendment of the 216. Certiorari. 
 
 record of the trial court. 217. Duty of party to apply for cer- 
 
 208. Amendments not allowed after tiorari. 
 
 the decision on appeal. 218. Who may obtain a certiorari. 
 
 209. Entries nunc fro tunc. 219. Time of making the application. 
 
 210. The application to correct the 220. Requisites of an application for 
 
 trial court record. a certiorari. 
 
 211. By whom the motion may be 221. Notice of the application. 
 
 made. 222. Submitting the motion for hear- 
 
 212. Notice of the motion. ing. 
 
 213. Evidence on the hearing of the 
 
 motion. 
 
 § 205. The Record below and the Record on Appeal— We have 
 elsewhere pointed out the difference between the record of the 
 trial court and the record on appeal, and have shown that the 
 difference is an important one, inasmuch as over the one record 
 power remains in the trial court, while over the other it resides 
 exclusively in the appellate tribunal. 1 In saying that the higher 
 court can not make an original entry for the trial court, nor per- 
 form an act which it is the right and duty of the trial court to 
 perform, and that the trial court can not exercise the slightest 
 control over the record of the higher, little more is done than to 
 repeat what has already been said. Appellate courts do not 
 make trial court entries nor trial court rulings in any instance 
 where the appeal is from a judgment or decree of a trial court. 
 There are rare cases in which original jurisdiction is exercised 
 
 1 Ante, " Difference between the rec- record of the trial court," § 190; "The 
 ord and the transcript," § 1S9; "The record on appeal," § 194. 
 
 (175)
 
 176 A.PPELLA II'. PROCEDURE. 
 
 by the appellate tribunals and in which all rulings and all en- 
 tries are there made, but in the vast majority of cases the orig- 
 inal rulings and entries are those of the trial court. In such 
 cases the original record remains in the trial court, 1 and is 
 transcribed and certified to the appellate tribunal. 
 
 § 206. A in en d in en ts and Corrections of the Trial Court Record — 
 
 Where the defect is in the trial court record, or where the rul- 
 ings of that court have not been duly entered, the application 
 to correct or amend the record must be made to that court. 2 An 
 application made elsewhere will be fruitless. Appellate tribu- 
 nals have jurisdiction to review a ruling sustaining or denving 
 an application to amend or correct the record remaining in the 
 inferior court, but the jurisdiction is appellate and can not be 
 made original save by a statute enacted under constitutional 
 authority. As the jurisdiction is appellate, it must be invoked 
 in accordance with the rules of procedure, and hence the 
 foundation must be laid in the trial court. There the original 
 proceedings must be taken, and, if a review is sought, the 
 record must be made up and exceptions so entered and pre- 
 served that the questions shall be open to investigation and re- 
 quire judgment. The appellate tribunal proceeds upon a tran- 
 script of the proceedings of the court of original jurisdiction, 
 and not upon original pleadings, papers, rulings or entries. 3 
 
 § 207. Effect of an Amendment of the Record of the Trial Court — 
 
 Where a trial court record is corrected or amended upon an 
 
 1 Peterson v. Swan. 119N. Y. 662. Gamble v. Gibson, 83 Mo. 290. In 
 
 2 Claflin -'. Dunne, 1J9 111. 241. 21 X. E. Thorn v. Wilson, 24 Ind. ^zt,, it was 
 Rep. 834; Rodman v. Harvey, [02 X.C. said: " We can not make a record for 
 1, S S. E. Rep. SSS; State v. Scheper any of the lower courts; that is their 
 
 Car.), 11 S. E. Rep. 623; State v. province, and all applications must be 
 
 Farrar, 1 « > 4 N.C. 702, 10 S. E. Rep. 159; made to them." Presumption where 
 
 Lee ( hm Quan Wo Chung Co., Si trial court refuses to amend. People 
 
 Cal. 222,22 Pac. Rep. 594; Stephens v. Samario, 84 Cal. 4S4, 24 Pac. Rep. 
 
 dley, 23 Fla. 393. 2 So. Rep. 607; 2S3. 
 Martin v. St. Louis, etc., Co., 53 Ark. 3 Doolev v. Martin. 2S Ind. 1S9; Doe 
 
 250, [3 S. W. Rep. 765; Saxon v. State, V. Owen, 2 Blackf. 452; Jones v. Van 
 
 116 Ind. 6, [8 \. E. Rep. 268; Hamil- Patten, 3 Ind. 107; Colerick v. Hooper, 
 
 Burch, :S Ii v. 3 Ind. 316. 
 
 well (X. V. . m N. !•:. Rep. 270;
 
 CORRECTING RECORD AND TRANSCRIPT. 177 
 
 application there filed, the amendment or correction becomes 
 part of the original record in legal contemplation, and the party 
 desiring its presentation on appeal should apply for an order to 
 have it certified to the appellate tribunal. The application to 
 the trial court to amend or correct the record when made pend- 
 ing an appeal is not, as a general rule, to be considered as an 
 independent proceeding, but it is to be deemed such an incident 
 of the original case as to constitute an integral part of it. The- 
 oretically, at least, there is only one case and one appeal. 1 If 
 the application to amend is denied by the trial court, or if 
 wrongly granted, the rulings and papers should be brought to 
 the higher court as part of the original appeal. 2 
 
 § 208. Amendments not allowed after the Decision on Appeal — 
 
 The rule is well settled that amendments will not be permitted 
 after the decision on appeal. 3 The duty of parties is to see that 
 the record is properly made up, and if they fail to move promptly 
 in securing a correction or amendment, where amendments or 
 corrections are necessary to make a perfect record or fully pre- 
 sent the questions, their complaint will not be heeded. 4 It is 
 incumbent upon the party desiring the amendment or correc- 
 tions to take the necessary steps to secure it before the record 
 is finally acted upon, and he must see that the officers of whom 
 duties are required perform those duties. 
 
 § 209. Entries nunc pro tunc — In correcting the original record 
 the theory is that the ruling involved was actually made but not 
 properly entered. There is no right under a proceeding to se- 
 
 1 Pleyte v. Pleyte, 15 Col. 44, 125, 23 E. Rep. 1009; Board v. Center Township. 
 Pac. Rep. 1007; Wolfley v. Lebanon 105 Ind. 422; Burgett v. Bothwell, S6 
 Mining Co., 3 Col. 296; Knox v. Mc- Ind. 149; Mansur v. Churchman, 84 
 Farran, 4 Col. 34S. Ind. 573; Warner v. Campbell. 39 Ind. 
 
 2 Jelley v. Gaff, 56 Ind. 331. In the 409; Pittsburgh, etc., Co. v. VanHouten, 
 ca^e cited it was said: "We are of 48 Ind. 90; State v. Terre Haute, etc., 
 opinion that the two records constitute Co., 64 Ind. 297; Gatling v. Newell, 12 
 but one case. The subsequent proceed- Ind. 116; Fielden v. People, 12S 111. ^9^, 
 ings to correct the entry would be unin- 21 N. E. Rep. 5S4; Chesapeake, etc., 
 telligible without reference to the orig- Co. v. Higgins, 85 Tenn. 620. 
 
 inal record." * Bannister v. Allen, 1 Blackf. 414. 
 
 3 Schrichte v. Stites,i27 Ind. 472, 26 N. 
 
 12
 
 178 
 
 APPELLATE PROCEDURE. 
 
 cure the amendment or correction of a record to have a new rul- 
 ing created or an entirely new element brought into the record 
 since, as is well settled, there " must be something to amend 
 by." l The proceeding is curative rather than creative. 2 The 
 facts are assumed to be in existence but the record evidence is 
 regarded as imperfect or incomplete. It is a necessary con- 
 clusion from the principle stated that an application for a nunc 
 pro tunc order will not warrant the revision of a judgment or 
 decree although it may authorize a correction or amendment of 
 the record entry. If the decree or judgment expresses the de- 
 cision rendered, or intended to be rendered, a mine pro tunc 
 order can not be granted. 3 
 
 1 A.S said in Kirby v. Bowland, 69 
 Irui. 20.0: "A court may record a fact 
 nunc pro tunc, that is, if the fact existed 
 then it may be recorded now, but it can 
 not record a fact now which did not ex- 
 ist then, and there must be some record, 
 note, entry, or minute of some kind on' 
 which to base it, connecting it with the 
 ca>e." This doctrine is asserted in many 
 cases. Makepeace v. Lukens, 27 Ind. 
 435; Morgan v. Hays, 91 Ind, 132; 
 Jenkins v. Long, 23 Ind. 460; Seig v. 
 Long, 72 Ind. iS; Hamilton v. Burch, 
 2S Ind. 233; Uland v. Carter, 34 Ind. 
 344; Beavers v. State, 5S Ind. 530; 
 
 -Hannah z\ Dorrell, 73 Ind. 465; Fire- 
 stone v. Firestone, 7S Ind. 534; Will- 
 iams v. Henderson, 90 Ind. 577; Bole 
 :■. Xewberger, Si Ind. 274; Shaw v. 
 Newsom, 7S Ind. 335; Johnson v. Moore, 
 112 Ind. 91; Chissom v. Barbour, 
 100 Ind. 1; Mohun's Case, 6 Mod. 59; 
 Mitchell v. Overman, 103 U. S 62; 
 Ellis v. Ewbanks, 3 Scam. 190; Reid v. 
 M.-rton, 119 111. 11S, 6 N. E. Rep. 414; 
 Chichester :>. Cande, 3 Cowen, 59, 15 
 Am. Dec. 23S. 
 
 2 An entirely new bill of exceptions 
 can not be created. Martin v. St. Louis, 
 etc., Co., 53 Ark. 250, 13 S. W. Rep. 
 
 "It i^ not," said the court, "the 
 
 office of an amendment to create or 
 originate something new, but only to 
 perfect that which is imperfectly done." 
 See, also, Cox v. Gress, 51 Ark. 224, 231, 
 11 S. W Rep. 416. It is rightly held in 
 Morgan v. Hays, 91 Ind. 132, that a bill 
 of exceptions may be amended on due 
 application to the trial court where 
 there is something to amend by, but this 
 does not authorize the conclusion that 
 there may be an entirely new bill cre- 
 ated by the trial court. Omitted evi- 
 dence may be supplied. Jeffersonville, 
 etc., Co. v. Bowen, 49 Ind. 154. The 
 general statement in Marley v. Horna- 
 day, 69 Ind. 106, which seems to indi- 
 cate that an entirely new bill may be 
 framed after judgment and pending an 
 appeal can not be supported. It goes 
 far beyond any of the authorities and 
 is opposed by principle. 
 
 3 Garrison v. People, 6 Neb. 274; 
 .Moorr v. Stale. 63 Ga. 165; Adams v. 
 1 1 iu_; iii- (Fla.), i So. Rep. 321; llydc 
 v. Curling, 10 Mo. 359; Strange v. Ty- 
 ler, 95 Ind. 395; Bole :'. Newberger. Si 
 Intl. 274; Gray v . Brignardello, 1 Wall. 
 627; Whitewell v. Emory, 3 Mich. 84, 
 ^i) Am. Dec. 220; Smith v. Hood, 25 
 Pa. St. 218; In re Limerick Petitioner, 
 18 Mo. 183.
 
 CORRECTING RECORD AND TRANSCRIPT. 179 
 
 §210. The Application to Correct the Trial Court Record — A 
 
 nunc pro tunc order may be obtained on motion in the proper 
 case, and a formal complaint is not required. 1 If, however, a 
 formal complaint or petition is filed, no harm is done, since 
 the form of the pleading is of no importance where a correct 
 result is reached. 2 But, while a formal complaint or petition is 
 not required, there should be a written motion specifying with 
 reasonable certainty the relief sought, and stating the grounds 
 upon which the motion is founded. 3 The sufficiency of a mo- 
 tion for a nunc pro tunc entry may, as it has been held, be 
 questioned by a motion to quash, or by a motion to dismiss. 4 
 
 § 211. By whom the Motion may be made — A motion to correct 
 the record by a nunc pro tunc entry can not be successfully 
 made by one who is a stranger to the record. Such a motion 
 can only be prosecuted by a party to the record or by a privy 
 in blood, or a legal representative. The decisions indicate that 
 a mere party in estate can not have the judgment or decree 
 corrected in any case. 5 It may well be doubted whether the 
 general rule is not too broadly stated in some of the decis- 
 ions, since it seems that there may be cases, although prob- 
 
 1 Gray v. Robinson, 90 Ind. 527; 16; Buck v. Havens, 40 Ind. 221. It is 
 Sherman v. Nixon, 37 Ind. 153; Hughes difficult to understand the reasoning in 
 v. Hinds, 69 Ind. 93; Latta v. Griffith, the case first cited^ since it seems to 
 57 Ind. 329; Urbanski v. Manns, S7 treat a motion for a nunc pro tunc en- 
 Ind. 585; Miller v. Royce, 60 Ind. 1S9; try as a motion to set aside a default. 
 Goodwine v. Hendrick, 29 Ind. 3S3; The conclusion, however, is correct, as 
 Jenkins v. Long, 23 Ind. 460. it must be true that if the motion is in- 
 
 2 Gray v. Robinson, 90 Ind. 527; sufficient on its face the relief sought 
 Ilolcraft v. King, 25 Ind. 352. can not be awarded. If the motion 
 
 3 The reporter's note in Urbanski v. discloses the infirmity there is no rea- 
 Manns, S7 Ind. 585, states the point de- son for proceeding further. 
 
 cided too broadly. What was there 5 Runnels V . Kaylor, 95 Ind. 503, cit- 
 
 said is that "special pleadings are not ing Cassel v. Case, 14 Ind. 393; Owen 
 
 required." The meaning is, as the con- v. Cooper, 46 Ind. 524; Rogers v. Ah- 
 
 text shows, that formal pleadings are bott, 37 Ind. 13S; Miller v. Kolb, 47 
 
 not necessary. Ind. 220; Lewis v. Owen, 64 Ind. 446; 
 
 4 Douglass v. Keehn, 7S Ind. 199, Angle v. Speer, 66 Ind. 4SS; Comers 
 citing Smith v. Noe, 30 Ind. 117; Nord v. Mericles, 75 Ind. 443; Keepfer v. 
 v, Marty, 56 Ind. 531; Lake v. Jones, Force, S6 Ind. Si. 
 
 49 Ind. 297, Ratliff v. Baldwin, 29 Ind.
 
 180 APPELLATE PROCEDURE. 
 
 ably rare ones, where a privy in estate might successfully 
 prosecute proceedings to correct a clerical error. 
 
 § '212. Notice of the Motion — A motion for a nunc fro tunc 
 order made after the close of the term requires notice. A party 
 is under no duty to keep watch of proceedings after the close 
 of the term. The notice which brings him into court, or the 
 proceedings which require him to be in court either actually or 
 constructively, spends its force with the close of the term at 
 which a final judgment or decree terminating the proceedings 
 is entered. This is the doctrine of the cases bearing directly 
 upon a motion for a nunc pro tunc order, 1 and it is also the doc- 
 trine in closely analogous cases. 2 In one case it was held that 
 four davs' notice is sufficient. * 
 
 § 213. Evidence on the hearing of the motion — It is declared by 
 our court and by other courts that upon a motion for a nunc 
 pro tunc entry, parol evidence is competent. 4 But there is much 
 confusion in the decided cases and it is not easy to extract a rule 
 from them. We have, however, concluded upon an examina- 
 tion of our own and other cases, that the true rule is that while 
 parol evidence is competent it is not of itself, unaided by any 
 note, minute, or memorial, sufficient to authorize a nunc -pro 
 tunc order. 5 It may be competent and yet insufficient. It 
 
 1 Smith ?'. Myers. 5 Blackf. 223; Bales * Corwin v. Thomas, 83 Ind. no; 
 v. Brown, 157 Ind. 2S2; Hughes*. Hinds, Crews v. Ross, 44 Ind. 481; Hobbs v. 
 69 Ind. 93; Benhold v. Fox, 21 Minn. Board, 103 Ind. 575; Board v. Fahlor, 
 51; Hill v. Hoover, 5 Wis. 386; Weed 114 Ind. 17^), and authorities cited. 
 v. Weed, 25 Conn. 337; Wallis v. Board v. Gruver, 115 Ind. 224. 
 Thomas, 7 Vesey, 292 ; Rockland Water 3 Latta O.Griffith, 57 Ind. 329. As 
 Co. v. Pillsbury, 60 Me. 420; Wooster to the effect of a nunc fro tunc entry 
 v. Glover, 37 Conn. 315, 317; Wheeler t\ see Leonard v. Broughton, 120 Ind. 536. 
 . j I Texas, 660; Martin v. Bank, * Mitchell v. Lincoln, 7SInd. 531 ; Jen- 
 20 Ark. 636; Alexander v. Stewart, 23 kins V. Lon^, 23 Ind. 460; Brownlee v. 
 Ark. 18; Cook v. Wood, 24 111. 295; Board, 101 Ind. 401; Frink v. Frink, 43 
 Swift v. Allen, 55 111. 303. Amend- N. H. 508, 80 Am. Dec. 189; Rugg 
 ments before a final judgment fully v. Parker, 7 Gray, 172; Jacobs v. Burg- 
 terminating the case may be made wyn, 63 N. C. 193; Avdelotte v. Brit- 
 without notice. McClellan v. Binklev, tain, 29 Kan. 9S. 
 
 7^ I ml. 503; Hurnside v. Ennis, 43 Ind. 5 Ellis t. Keller, 82 Ind. 524; Conway 
 
 411; Spanagel r. Dellinger, 34 Cal. 476; v. Day, 92 Ind. 522. See, also, cases cited, 
 
 Layman v. Gravbill. 14 Ind. 1G6. ante, "Entries nunc fro time" § 209.
 
 CORRECTING RECORD AND TRANSCRIPT. 181 
 
 would certainly violate the rule laid down in a long line of 
 cases to hold that parol evidence is all that is required. There 
 is reason for holding that where there is a mistake in the calcu- 
 lation of the amount parol evidence may be heard to aid the 
 record, 1 but it does not follow that it is competent to make a 
 new, independent and original order or entry. 
 
 § 214. Appeal from ruling on the Application for a nunc pro 
 tone entry — A party who desires to challenge the correctness of 
 the decision of the court upon a motion for a nunc -pro tunc or- 
 der must do so by the appropriate proceeding. He may appeal 
 from the decision. 2 As there is a remedy by appeal there can 
 be no collateral attack. If there is jurisdiction of the subject 
 and no effective attack the ruling will not be disturbed. A 
 motion for a new trial is not required, as a motion to correct 
 the record is regarded as a summary proceeding, in which 
 there is, in the strict sense, no trial. 3 An exception to the rul- 
 ing on the motion has been held, in several cases, to be all 
 that is necessary to reserve the question. 4 
 
 § 215. Presenting the ruling on Appeal — It is a necessary con- 
 clusion from the doctrine affirmed by many cases that no 
 formal pleadings are necessary in proceedings to obtain a nunc 
 ■pro tunc entry that all the papers, as well as the evidence, 
 must be brought into the record by a bill of exceptions, or, in 
 the proper case, by an order of court. 5 The statements of the 
 clerk are ineffective. The record must be made to speak in 
 due and proper form. 6 The record must show that the appli- 
 cation was made to a court having power over the record, since 
 no other could have jurisdiction. 7 An attempt by a court other 
 
 1 As in Sherman v. Nixon, 37 Ind. Working, 93 Ind. 501; Coulter v. Coul- 
 
 153. or Mitchell v. Lincoln, 7S Ind. 531. ter, Si Ind. 542; Beeber v. Bevan, So 
 
 ' Walker v. State, 102 Ind. 502. Ind. 31. 
 
 3 Blizzard v. Blizzard, 40 Ind. 344; 5 Ellis v. Keller, 82 Ind. 524; Conway 
 Walker v. State, 102 Ind. 502. v. Day, 79 Ind. 31S; Chissom v. Bar- 
 
 4 Blizzard v. Blizzard, 40 Ind. 344. bour, 100 Ind. 1. 
 
 Runnels v. Kajlor, 95 Ind. 503. Citing 6 Ellis v. Keller, 82 Ind. 524. 
 Jenkins v. Long, 23 Ind. 460; Corwin 7 Wilcox v. Majors, SS Ind. 203. 
 -'• Thomas, S3 Ind. no; Dukes v.
 
 A P I ' E L L A T E PROCEDU R E 
 
 than the one of whose record an amendment is sought to make 
 a nunc fro tunc entry or order, would be abortive. 
 
 § 216. Certiorari — If the orders and entries are correctly re- 
 corded below, but are improperly or incorrectly copied, or 
 transcribed, the remedy is to apply to the appellate tribunal 
 for an order to the clerk below to certify the amendments 
 and corrections required to make the transcript faithfully 
 and truly exhibit the rulings, entries and proceedings as 
 the original record exhibits them. The order which issues 
 upon such a motion, or application, is commonly called a certi- 
 orari} It will issue to compel the eradication from the tran- 
 script of matters that do not belong there, as well as to bring 
 into the transcript matters that are not copied into it which do 
 belong there. Where, however, improper matter appears in a 
 transcript, and its presence is revealed by a bare inspection of 
 the record without the aid of entries, orders, or instruments not 
 there appearing, a certiorari'^ not required. Thus if it appears 
 upon the face of the record that a bill of exceptions has not been 
 filed in time, or that motions not properly made part of the rec- 
 ord are incorporated in the transcript, there is no necessity for 
 asking a certiorari, nor for making a motion to expunge the 
 improper matter from the transcript. All that need be done is 
 to point out the improper matter in the brief. 
 
 v? 217. Duty of party to apply for Certiorari — The court may, 
 if it deems proper for the furtherance of justice, direct a tran- 
 script to be corrected, or original papers to be certified up, 2 
 but it is not bound to do so. Primarily the duty of asking and 
 obtaining a certiorari rests upon counsel ; the court may, as a 
 matter of discretion, make the necessary order, but that it shall 
 make it of its own motion can not be insisted upon as a matter 
 
 1 Phelps v. Osgood, 34 Ind. 150; Sum- 2 Hart v. State. 26 Ind. 100; State v. 
 
 nert>. Goings, 74 Ind. 293; Hall v. Dur- Pierce. 14 Ind. 302: Brown*. Osborn, 
 
 ham, 113 Ind. 327; Du Souchet v . Dut- iBlackf.32; Grover, etc., Co. v. Barnes, 
 
 . 113 Ind. 249; Miller: 1 . Shriner. S7 49 Ind. [36; Jones:. Van Patten, 3 Ind. 
 
 err. Myers, 41 Ind. 543; 107; Songer v. Walker, 1 Blackf. 251; 
 
 United State- v. Adams, 9 Wall. 661; Gatlingt'. Newell, 12 Ind. 116; Colerick 
 
 Fowler v. Lindsey, 3 Dall. 411, 413: v. Hooper, 3 Ind. 316; Walker v. State, 
 
 Board, etc., v. Bond, 3 Col. 222. 102 Ind. 502.
 
 CORRECTING RECORD AND TRANSCRIPT. 183 
 
 of right. 1 Counsel are under a duty to examine the transcript, 
 and the fault is theirs if they do not take steps necessary to rec- 
 tify errors and secure amendments. If parties suffer judgment 
 to be rendered on a defective transcript it will be as effective 
 as if the transcript had been amended. 2 
 
 § 218. Who may obtain a Certiorari — Strangers to the record 
 can not obtain an order to amend the transcript. A party to 
 the record who does not appeal and whose interests are not in- 
 volved, can not have a certiorari. In order to entitle an appli- 
 cant to the order he must have a substantial interest that may 
 be affected by the judgment on appeal, since it would be idle 
 to direct an amendment upon the application of one who can 
 neither be benefited nor harmed by the decision. 3 
 
 § 219. Time of making Application — An application for a cer- 
 tiorari may be made after the submission of the cause, but can 
 not, 4 of course, be made after the decision on appeal. 5 But it 
 is always within the power of the court to deny the application 
 if the applicant has not proceeded with reasonable diligence. 
 If necessary to enable a party who has acted promptly to secure 
 an amendment of the transcript the court will grant an order 
 staying proceedings/' It is obvious that an application for a cer- 
 tiorari in cases where it is in aid of appellate jurisdiction can 
 not, as a general rule, be made until the transcript is filed in the 
 appellate tribunal. 7 
 
 1 State v. Hallowell, 91 Ind. 376. In 6 Doe v. Owen. 2 Blackf. 452. 
 Kesler v. Myers, 41 Ind. 543, 555, it T Mullary v. Caskaden, Minor (Ala.) 
 
 was said: "We could not. with pro- 20. We are not, it is barely necessary 
 
 priety, make any suggestion to the par- to say, here speaking of a proceeding to 
 
 ties or counsel as to the condition of compel a trial court to make a proper 
 
 the record. and rightful record, but of a proceeding 
 
 2 Davis v. Jenkins, 14 Ind. 572; Greg- to compel a ministerial officer to cor- 
 ory v. Slaughter, 19 Ind. 342. rectly transcribe or certify a record 
 
 3 State v. Chastain, 104 »N. C. 900, which has been duly made in the trial 
 905, 10 S. E. Rep. 519. court. There is an important differ- 
 
 4 Clark v. Wright, 67 Ind. 224; Penn- ence between requiring a court to make 
 sylvania Co. v. Holderman, 69 Ind. iS; a record and compelling the clerk to 
 post, § 221, n. 3. copy and certify it as made. 
 
 s Ante, "Amendments not allowed 
 after decision on appeal." $ 20S.
 
 134 APPELLATE PROCEDURE. 
 
 § 220. Requisites of the Application for a Certiorari — The safe 
 course is to verify the motion for a certiorari, since it is diffi- 
 cult to conceive of a case in which a certiorari is necessary, 
 wherein an unverified motion would be sufficient. As we 
 have seen, where an inspection of the record discloses the pres- 
 ence of improper matter which may be disregarded without 
 looking beyond the face of the record, no amendment is re- 
 quired, so that it is almost always necessary to show some mat- 
 ter not apparent on the face of the record in order to obtain a 
 certiorari. Where there is no defect or imperfection apparent 
 on the face of the record the presumption is that it is com- 
 plete and perfect,' so that it is incumbent upon one who affirms 
 that it is not to show wherein it is defective or imperfect. The 
 motion or application must " clearly designate the parts of the 
 record asserted to be defective, improperly omitted, or improp- 
 erly incorporated in the transcript.'' 2 
 
 §221. Notice of the Application — After the cause has been 
 submitted notice of the motion must be given, but notice need 
 not be given where the motion is filed before the cause is sub- 
 mitted. 3 The notice should specify the general character of 
 the motion, and, in strictness, should be served ten days prior 
 to the time fixed for the hearing. 4 It has been held that the 
 court will hear the motion at " any time after the opposite party 
 or his attorney has had ten days' notice in writing, though a 
 day prior to the expiration of such period has been designated 
 in the notice." 5 
 
 § 222. Submitting the Motion for Hearing— The motion, with 
 accompanying affidavits, is submitted to the court by the clerk, 
 
 1 Von Glahan v. Von Glahan, 40 111. 5 Durbin v. Haines, 99 Ind. 463. 
 
 73; Williams v. Qirin, 7 Cowen, 539; This doctrine is a reasonable one, for, 
 
 Mullary v. Caskaken Minor (Ala.), 20. if the notice is given for the requisite 
 
 5 Rule XXXII. The rule is simply length of time, a new notice ought not 
 
 declaratory of a general principle, and to be required, nor ought the party to 
 
 should be closely followed. be prejudiced by the delay of the court 
 
 3 Rule XXXII; Clark v. Wright, 67 or by operation of law. If the adverse 
 End. 224; Pennsylvania Co. v. Holder- party has notice for the length of time 
 man, 69 Ind. iS; Figart v. Halderman, required by the rules of practice he can 
 59 Ind. 424. have no reason to complain. 
 
 4 Rule XIV.
 
 CORRECTING RECORD AND TRANSCRIPT. 185 
 
 and is acted upon without oral argument. It is proper, and, 
 indeed, often necessary, for parties to file briefs upon the 
 motion, but oral arguments are not heard. Counter affidavits 
 are admissible but not verbal testimony. 1 If it appears that the 
 defect sought to be remedied is entirely immaterial, exerting no 
 influence upon the controversy, no case is made for a certiorari. 
 
 1 Rule XXXIII.
 
 CHAPTER XI. 
 
 A < , R E E D CASE 
 
 <j> 223. Agreed cases — Jurisdiction. 
 
 224. Agreed statement of facts does 
 
 not make an agreed case. 
 
 225. The distinctive features of an 
 
 agreed case. 
 
 226. No presumptions indulged in 
 
 favor of the judgment of the 
 trial court. 
 
 § 227. The affidavit. 
 
 22S. Requisites of the statement of. 
 facts. 
 
 229. Office of the statement of facts. 
 
 230. Effect of the statement. 
 
 231. Mistake in the statement of 
 
 facts. 
 
 232. The record. 
 
 § 223. Agreed Cases — Jurisdiction — The statute allows parties 
 to make and present a case by agreement, but, to prevent a 
 violation of the rule interdicting the submission of feigned con- 
 troversies and to insure good faith, 1 it requires that designated 
 acts shall be done by the parties. There must be a real con- 
 troversy between actual parties, but the facts of the controversy 
 mav be agreed upon by the parties. The material acts required 
 by the statute can not be dispensed with, for they are regarded 
 as jurisdictional. Thus it is held that an affidavit is essential 
 to jurisdiction, 2 but the affidavit of one of the parties is suffi- 
 
 1 The case of Smith v. Junction, 
 etc.. Co., 29 Ind. 546. strikingly illus- 
 trates the statement of the text. In that 
 case the court received affidavits to 
 show that the case was feigned and one 
 of the parties fictitious, and quoted with 
 approval from the opinion in Lord v. 
 Veazie. S How. (U. S.) 251, 254. the fol- 
 lowing: "And any attempt by a mere 
 colorable dispute to obtain the opinion of 
 the court upon a question of law, which 
 a party desires to know for his own in- 
 • or his own purposes, where there 
 i- no real and substantial controversy 
 between those who appear as adverse 
 parties to the suil is an abuse which 
 courts of justice have always repre- 
 
 hended and treated as a punishable con- 
 tempt of court." The following ca 
 were also cited: Brewington v. Lowe, 
 1 Ind. 21; Hotchkiss v. Jones, 4 Ind. 
 260; Cleveland v. Chamberlain, 1 Black 
 (U. S. L419. 
 
 2 Sharpe v. Sharpe, 27 Ind. 507, 508. 
 In the case cited the court said, ''No 
 pleadings are required in such cases, 
 but the affidavit referred to is necessary 
 to give the court jurisdiction of the 
 case, and the power to hear and deter- 
 mine the question involved, and render 
 judgment without pleadings." Speak- 
 in- of this ruling it was said in Man- 
 chester v, Dodge, 57 Ind. 584, "And, 
 indeed, it could not well be held other- 
 
 (186)
 
 AGREED CASE. 
 
 
 cient. 1 As jurisdiction depends upon the affidavit it is indis- 
 pensably necessary that it should form part of the record, for 
 its absence will be fatal to the appeal. 2 
 
 § 224. Agreed statement of Facts does not make an Agreed (asr — 
 There is a material difference between an agreed case and a < 
 where there is simply an agreement or stipulation as to the 
 facts. 1 The agreement as to the facts does not make an agreed 
 case under the statute. This difference between the two cases 
 is radical and leads to important results. It is only necessary to 
 here note a few of the important differences ; one is that plead- 
 ings are required in ordinary cases but not in agreed cases ;' a 
 motion for a new trial is not required in agreed cases/' but is 
 required in cases where there is simply an agreed statement of 
 facts. 6 Where parties act upon the theory in the trial court that 
 the case is an agreed case they will be held to that theory on 
 appeal, although the case may not come within the statute." 
 
 wise." These cases are approved in 
 Godfrey v. Wilson, 70 Ind. 50, 58. The 
 absence of the required affidavit was de- 
 clared fatal in Myers v. Lawyer, 99 Ind. 
 237. The Supreme Court of Wisconsin 
 in Plainfield v. Plainfield, 67 Wis. 525, 
 declared that "The required affidavit is 
 essential to the jurisdiction of the court 
 to render a judgment on the matter 
 submitted." See, also, to same effect, 
 Donald v. St. Louis, etc., Co., 52 Iowa, 
 411. 
 
 1 Booth v. Cottingham, 126 Ind. 431. 
 
 2 The statement of the clerk that an 
 affidavit such as the statute requires 
 was tiled will not supply the place of 
 the affidavit, for that must appear in 
 the record. Myers v. Lawyer, 99 Ind. 
 
 3 Witz v. Dale (Ind.), 27 N. E. Rep. 
 498; Zeller v. City of Crawfordsville, 
 90 Ind. 262; Pennsylvania Co. v. Nib- 
 lack, 99 Ind. 149; Citizens Insur- 
 ance Co. v. Harris. 10S Ind. 392,9 N. 
 E. Rep. 299; Western Union Tel. Co. 
 v. Frank. 85 Ind. 480; Slessman v. 
 Crozier,8o Ind. 4S7; Downey v. Wash- 
 
 burn, 79 Ind. 242; Openheim v. Pitt- 
 burgh, etc., Co., 85 Ind. 471. 472; Lo 
 v. Moore, 83 Ind. 112; Martin v. Mar 
 tin, 74 Ind. 207; Fisher v. Purdue. 4 s 
 Ind. 2 2 ?,\ Carlton v. Cummins, 51 Ind. 
 478. In Fisher v. Purdue, supra, thi 
 court misapplies the term "statement 
 of facts," but this error does not invali- 
 date the conclusion reached. Thatcher 
 v. Ireland. 77 Ind. 4S6, is to be under- 
 stood as an agreed case. An agreement 
 as to the facts embodied in a statement 
 of facts is no more than a stipulation 
 as to what the evidence would establish. 
 Pennsylvania Co. v. Niblack, supra. 
 
 4 Warrick, etc., Co. v. Hougland 
 Ind. 1 15. 
 
 5 Lofton v. Moore, S3 Ind. 112. 
 
 6 McDonald v. Stader, 10 Ind. 171. 
 State v. Swarts ct a/., 9 Ind. 221. 
 
 7 Booth v. Cottingham. 126 Ind. 431, 
 citing Carver v. Carver, 97 Ind 
 
 516; Louisville, etc., Co. v. Wood. 113 
 Ind. 544. 564; Brink :'. Reid, 122 Ind. 
 2^7. In the case first cited it was said 
 by the court: "Where parties agree 
 upon a theory we can not with propri-
 
 188 APPELLATE PROCEDURE. 
 
 But this rule would not, of course, prevail against a party who 
 had resisted the theory in the trial court. 
 
 § 225. The distinctive features of an Agreed Case — An agreed 
 case is one wherein there is neither process nor pleadings, and 
 wherein there are no controverted questions of fact nor, indeed, 
 anv questions except questions of law arising on the agreed 
 statement. The court looks to the agreed statement required 
 bv the statute, and if that fails to show a right of recovery in 
 the plaintiff none can be adjudged.' A motion for a new trial 
 is not required as we have elsewhere more fully shown, 2 but an 
 exception to the finding is necessary. 3 If pleadings are filed 
 they will be disregarded, 1 and from this it necessarily results 
 that no errors in rulings on the pleadings can be of the slightest 
 avail. 
 
 .^ 226. No Presumptions indulged in favor of the Judgment of the 
 Trial Court — The rule in agreed cases upon the subject of pre- 
 sumptions in favor of the rulings of the trial court is radically 
 different from that which prevails in other cases. It has long 
 been settled that no presumptions will be made in favor of the 
 trial court in agreed cases under the statute. 5 The party who 
 
 etv deny their agreement except, per- land, 90 Ind. 115, 117. "In such 
 haps, where it is plainly necessary to a case." said the court in the case cited, 
 do so in order to prevent manifest in- "there must be an exception to the de- 
 justice." cision of the court upon the agreed 
 
 1 Gregory :\ Perdue. 29 Ind. 66. "It statement of facts in order to reserve 
 must appear." it was said in the case any question for this court." The cases 
 cited, "from such statement of facts of Fisher :•. Purdue. 4S Ind. 323. and 
 that there exists a cause of action in Lofton :•. Moore. s 3 Ind. 1 1 2. were cited 
 favor of one of the parties against the in support of the proposition stated. 
 other." * Day v. Day. 100 Ind. 460. 461; Keel- 
 
 2 Witz v. Dale (Ind.), 27 N. E. Rep. ine v. Council Bluffs, 62 Iowa, 450. 
 49S. In State v. Board, 66 Ind. 216, the 5 Indianapolis, etc.. Co. v. Kinney. S 
 rule and the reason sustaining it were Ind. 402: Ilannum v. State, 3S Ind. 
 thus stated: "It is not necessary to 32; Warrick, etc.. Co. v. Ilougland, 90 
 move for a new trial, because the facts Ind. 115, 117: Day v. Day, 100 Ind. 
 
 A to would necessarily be the same 460. 461. It is to be said of Hannum r>. 
 
 on a second trial as they were upon the State, supra, that the court and coun- 
 
 first, and nothing would 'herein- be sel seem to have erroneously treated the 
 
 gained. Fisher v. Purdue. 48 Ind. t,2],." case as an agreed case under the statute. 
 
 3 The Warrick, etc.. Co. v. Houg- It certainlv was not such a case.
 
 AGREED LAM: 
 
 189 
 
 has the burden must, therefore, show clearly and full)' such facts 
 as entitle him to relief, or he will fail. The facts must appear 
 in the agreed statement required by the statute for they can not 
 be properly exhibited in any other mode. 
 
 § 227. The Affidavit — The importance of the affidavit is such 
 as to make it necessary that it should in all material particulars 
 conform to the statute. It would defeat a principal purpose of 
 the statute 1 to permit cases to be submitted without an affidavit 
 fully and clearly stating the facts which the law says the affi- 
 davit shall contain. It would also contravene a sound rule of 
 public policy 2 to permit an agreed case to be filed without the 
 affidavit prescribed, so that there is ample reason for holding 
 the language of the statute to be mandatory. The affidavit 
 must, as it has been held — and held upon substantial reasons — 
 be made by one of the parties. 3 While it is generally true that 
 
 1 The affidavit is essential to jurisdic- 
 tion. Ante, § 223. 
 
 2 In the case of the Newark, etc., Co. 
 v. Perry Co., 30 Ohio St. 120, the 
 court said, in speaking of the statute 
 providing for agreed cases, that, "It is 
 ohvious from a reading of these pro- 
 visions, that it was intended to provide 
 for the submission of a real case between 
 the parties in which judgment settling 
 the controversy could be rendered, 
 and which would be a bar to a future 
 action, for the same subject-matter and 
 afford the ordinary relief obtained by a 
 final judgment. It was not intended to 
 provide for the submission of questions 
 ot law, for the opinion of the court, 
 merely without a case in which a judg- 
 ment might be rendered in accordance 
 with its opinion legally determining the 
 rights of the parties. It does not au- 
 thorize the submission of questions in 
 rases that are merely anticipated, nor 
 of cases where the facts are disputed. 
 Nor was such submission intended to 
 be merely advisory as to the rights of 
 the parties. It is rather a substitute for 
 an action, and its effect upon the rights 
 
 of the parties is the same as that of an 
 action. It is a short and convenient 
 mode for the final adjudication of the 
 case submitted." 
 
 3 In denying the right of an attorney 
 to make the affidavit the Court of Ap- 
 peals of New York in Bloomfield v. 
 Ketcham, 5 N. V. Civil Proc. Rep. 407. 
 (S.C.95 N.Y.657)said: "To avoid col- 
 lusive or fictitious submissions the code 
 provides (§ i279)thattoentitle partiesto 
 submit a controversy, the case must be 
 accompanied with the affidavit of one of 
 the parties to the effect that the contro- 
 versy is real and that the submission is 
 made in good faith for the purpose of de- 
 termining the rights of the parties. A n 
 attempt has been made in the present 
 case to comply with that provision, but 
 the affidavit, instead of being made by 
 one of the parties, is made by an attor- 
 ney in fact of the parties, who swears 
 that the submission is made in good 
 faith and that the controversy is real, 
 to the best of his knowledge, informa- 
 tion and belief. There is no authority 
 in the code for making such an affidavit 
 by an attorney, and as the facts required
 
 190 APPELLATE PROCEDURE. 
 
 an attorney may make an affidavit in cases where one is re- 
 quired, there are, nevertheless, cases where it must be made by 
 a party, as, for instance, where the facts are peculiarly within 
 the knowledge of the parties, and it is necessary that the sworn 
 statement should come from one who can speak from his own 
 knowledge. This is especially true in agreed cases where in- 
 tention and positive knowledge are important factors. But it 
 is evident that the general rule stated is not without exceptions. 
 In cases of corporations, as for instance the State, 1 the rule can 
 not be given effect, and there are doubtless other exceptions to 
 the rule. 
 
 § 228. Requisites of the Statement of Facts — The statement of 
 facts must be so full and definite that the court can declare the 
 law of the case, and by the appropriate judgment or decree 
 adjudicate and settle the controversy between the parties. The 
 inferential and ultimate facts, and not mere evidence of the 
 facts, must be stated.- The court will not assume to make any 
 other than necessary and legal inferences from the facts. 3 Mat- 
 ters of law should not be stated, 4 but the facts must so appear 
 as that nothing remains for the court but to decide the questions 
 of law arising on the facts, 5 since the court will not determine 
 any question of fact nor give heed to mere matters of evidence. 
 Not only must the facts be so stated as to enable the court to 
 decide the questions of law, but they must be such facts as con- 
 stitute a case upon which a final judgment or decree can be 
 rendered.'' The facts, as stated, must show a present and act- 
 to be stated. are peculiarly within the Union National Rank v. Kupper, 63 N. 
 knowledge of tin- parties, we think the Y. 617; Clark v. Wise, 46 N. Y. 612. 
 affidavit should be made by one of them, 4 Ford --.City of Cameron, 19 Mo. 
 and that the affidavil of an attorney is App. 467. 
 
 dompliance with the statute, 5 Smith v. Cudworth, 24 Pick. 196; 
 where there is a material person a Clark v. Wise. 40 N.Y.612; Neilson 
 party to the proceeding, by whom it v. Commercial Mutual Ins. Co., 3 
 may be made." Duer, 455. See Wood v. Squires. 60 
 
 1 State v. Coghlen, 86 Ind. 404. N. Y. 191; Dickinson v. Dickey, 76 
 
 2 Powers v. Provident Institution. 122 N. Y. 002. 
 
 Mass. J43; Mayhew v. Dunham, 13S "Speaking of the provision of the 
 
 M iss. 584. code respecting agreed cases, the court 
 
 v. Irwin, 55 NY. 4S6; said, in Williams v. City of Rochester,
 
 AGREED CASE. 
 
 11)1 
 
 ual controversy within the jurisdiction of the court, for the court 
 can give no decision upon questions agreed upon and submitted 
 where it does not properly appear that there is an existing and 
 actual dispute which it requires a judicial decision to settle. 1 
 
 § 229. Office of the Statement of Facts— The statement of facts, 
 when properly prepared, submits an entire controversy to the 
 court as fully as does a special verdict.- Its office is to state 
 all the ultimate facts. As some of the adjudged cases say, "it 
 stands as a substitute for a special verdict," and is governed by 
 substantially the same leading rules as those framed for the 
 government of special verdicts returned by a jury in a civil 
 action. This is obviously true, for the statement of facts in an 
 agreed case is essentially the same thing as a case stated at 
 common law. 3 It is, therefore, proper to look for guidance and 
 
 2 Lans. 169, that: " Its object is to en- 
 able parties, without resort to legal pro- 
 cess or formal pleadings, to submit to 
 the court for its adjudication, some al- 
 leged cause of action or claim for relief. 
 The submission must be for an adjudi- 
 cation. A case must be presented on 
 which a judgment may be rendered in 
 favor of one and against the other of 
 the parties to the submission." To the 
 same effect are Cunard Steamship Co. 
 v. Voorhis, 104 N. Y. 525, and Day v. 
 Day, 100 Ind. 460, 462. 
 
 1 In the case of Hobart College 
 v. Fitzhugh, 27 N. Y. 130, questions 
 were agreed upon and submitted, and 
 it was held that there was no case be- 
 fore the court. In the course of the 
 opinion it was said: " The difficulty is 
 that there was no controversy between 
 the parties that might then be the sub- 
 ject of a civil action in which a judg- 
 ment could be rendered. No judgment 
 could be rendered other than a judg- 
 ment for the defendant, dismissing the 
 controversy or action, or rather case." 
 It is true of an agreed case, as of all 
 other suits and actions, that there can 
 be no appeal to a judicial tribunal un- 
 
 less the judgment of a court is required 
 to enforce the existing legal or equi- 
 table rights of one of the parties, and 
 thus put an end to the controversy by 
 a final adjudication. 
 
 2 Heni v. Grand, etc., Co., 59 Mo. 
 5S1; Gage v. Gates, 62 Mo. 412; Shaw 
 v. Padley, 64 Mo. 519; Hughes v. 
 Moore, 17 Mo. App. 14S; Moore v. 
 Henry, iS Mo. App. 35; Ford v. Cam- 
 eron, 19 Mo. App. 467; Field v. Chi- 
 cago, etc., Co., 21 Mo. App. 600. 
 
 3 Mr. Tidd speaks of what is often 
 called a case stated as "a special case." 
 He says: " In a special case as in a spe- 
 cial verdict, the facts proved at the trial 
 ought to be stated and not merely the 
 evidence of facts, and it is drawn and 
 settled in like manner by counsel." lie 
 also says: "A special case was stated 
 for the opinion of the court and it ap- 
 pearing that the greater part of the 
 statement was fictitious, the court fined 
 the attorney for his misconduct." 2 
 Tidd's Practice (4th Am. ed.), top p. 
 S9S. In another work it is said: "A 
 case stated is a substitute for a general 
 verdict, and the same general rules ap- 
 ply to both." 1 Troubat & Haley's Prac-
 
 192 
 
 APPELLATE PROCEDURE. 
 
 information to the common law rules upon the subject of a case 
 stated. 1 
 
 § '230. Effect of the Statement — The agreed statement excludes 
 all other questions except such as arise upon the facts exhibited. 
 If the parties agree to a statement which excludes the benefit 
 of a defense the defense is lost. Thus, if parties agree as to 
 the facts they can not be heard to aver that their adversaries 
 were estopped to make the facts available. 2 But this rule can 
 not apply where the facts themselves plainly establish an estop- 
 pel and are so stated as to make it appear that the estoppel is 
 relied upon or is not waived. As the chief object of an agreed 
 statement of facts is to obtain a final judgment settling the con- 
 troversy it must necessarily follow that the judgment duly pro- 
 nounced is a conclusive adjudication. It further follows that 
 the appellate tribunal may so frame its judgment as to justly 
 declare the law upon the agreed facts. 3 
 
 § 231. Mistake in the statement of Facts — It has been held that 
 a mistake in the statement of facts filed in an agreed case may 
 be corrected upon proper application. 4 The doctrine declared 
 
 tice, 409, § 733. See, generally, White- 
 sides V. Russell, S Watts & S. 44; Berks 
 County v. Jones, 21 Pa. St. 413; Da 
 Costa v. Guien, 7 Sergt. & R. 462; 
 Holmes V. Wallace, 46 Pa. St. 266; 
 Lippincott v. Ledyard, 8 Phila. 18; 
 Parker v. Urie, 21 Pa. St. 305; Diehl v. 
 [hrie, 3 Whart. (Pa.) 143; Berks County 
 Pile, iS Pa. St. 493; Philadelphia, 
 Co. v. Waterman, 54 Pa. St. 337; 
 James v. Mc Williams, 6 Munf. (Ya.) 
 501. 
 
 1 We here confine our remarks solely 
 to that nart of an agreed case commonly 
 called the statement of the case, or the 
 menl of the facts, inasmuch as the 
 other elements of an agreed case are 
 principally statutory. 
 
 1 l'.nston v. Tileston, 11 Mass. 467; 
 Wheelock v. Henshaw, 19 Pick. 341. 
 
 3 Farmers Bank v. Spring. 11 Md. 
 3S9; Simpers v. Simpers. 15 Md. 160; 
 
 Phelps v. Phelps, 17 Md. 120; People's 
 Bank v. Shyrock, 4S Md. 427; Howard 
 v. Carpenter, 22 Md. 249, 258. 259; Mc- 
 Afee v. Reynolds (Ind.),28 N. E. Rep. 
 423. The purpose of the parties in agree - 
 ing to the tacts is to leave only questions 
 of law for decision, and the effect of their 
 agreement is to forever settle all con- 
 troversy as to the facts, while the effect 
 of the judgment of the court is to end 
 all dispute as to the law. It is evident, 
 therefore, that it is the duty of the ap- 
 pellate tribunal to direct the proper 
 specific judgment, where such direc- 
 tions are appropriate, leaving nothing 
 for the trial court to do but give effect 
 to the mandate. 
 
 4 State v. Coghlen, 86 Ind. 404, 413. 
 In support of its ruling the court cited, 
 Jenkins v. Long, 23 Ind. 460: Miller V. 
 Royce. 60 Ind. 189; Reiley v. Burton, 
 71 Ind. 11S; Mitchell v. Lincoln, 7S
 
 AGREED CASE. 193 
 
 in the case referred to is one to be cautiously applied, and re- 
 quires limitation rather than expansion. Where parties delib- 
 erately and solemnly agree upon facts, embody them in a state- 
 ment for the purpose of obtaining the judgment of a court upon 
 them, and verify the statement by oath, an unusually clear and 
 strong showing of a mistake in the statement is necessary to 
 authorize the court to attempt to rectify it. Not only should it 
 be shown that a material mistake was made, but it should also 
 be shown that the party was not in fault. Any other rule would 
 open the door to great abuses and enable parties to impose upon 
 the courts. 1 
 
 § 232. The Record — The code evidently contemplates that the 
 record shall be a brief one, and that no bill of exceptions shall 
 be required to exhibit the statement of facts. It declares that 
 the "statement of the case, the submission and the judgment 
 shall constitute the record." 2 The decisions indicate very clearly 
 that no bill of exceptions is required to exhibit the facts. 3 The 
 court long since engrafted upon the statute the requirement that 
 the finding shall be excepted to, but how this exception shall 
 be shown does not seem to have been directly decided. We 
 venture to say that, in view of the evident purpose of the statute 
 to make the record brief and to place the decision entirely and 
 solely upon the facts embodied in the statement, there is no 
 necessity for a bill of exceptions, but that it is sufficient to take 
 the exception and cause it to be entered of record. 4 The ex- 
 press provision of the statute (under the familiar rule, that the 
 
 Ind. 531. But the cases cited by the 2 R. S., § 554. 
 
 court are not true types of the case they ' 3 Martin v. Martin. 74 Ind. 207, 20S; 
 
 arc adduced to support. The principal Citizens Insurance Co. v. Harris, 10S 
 
 ca^c must, as we think, be regarded as Ind. 392. 
 
 an unusual one, and the rule asserted 4 We can not avoid the conclusion 
 
 one that can not be successfully invoked that in holding that an exception is re- 
 
 except in the strongest and clearest quired the court has added a substan 
 
 cases of excusable and unavoidable tive provision to the statute. We are, 
 
 mistake. at all events, convinced that the court 
 
 1 It is, indeed, doubtful whether the ought not to go further and add the 
 
 statement can be corrected in any case provision that a formal bill of excep- 
 
 except where the error in it was brought tions is necessary to make the excep- 
 
 aboutby fraud or caused bv an accident, tion available. 
 
 " 13
 
 194 A.PPELLATE PROCEDURE. 
 
 expression of one thing implies the exclusion of others) implies 
 that no other things than those enumerated shall be required. 
 There is no more necessity for requiring a bill of exceptions in 
 an agreed case than there is for holding that a bill of exceptions 
 is necessary to exhibit an exception to a ruling upon a demurrer 
 to a complaint, answer or reply. The exception is, as we think, 
 part of the record by entry in the order book without a bill of 
 exceptions. There would certainly be no useful purpose sub- 
 served by cumbering the record with a bill of exceptions. A 
 brief note of an exception will accomplish all that a formal bill 
 of exceptions can properly do, and the entry of such an excep- 
 tion is as essentially a part of the record as is the noting of an 
 exception to a ruling upon a demurrer addressed to a pleading. 1 
 
 1 The Ohio code is the same as ours, required. In the course of the opinion 
 
 and it was held by the Supreme Court it was said: " There was nothing to put 
 
 of that State in Brown v. Mott, 22 Ohio in the bill of exceptions. The record 
 
 St. 149, 159, that neither a motion for was complete without it." 
 a new trial nor a bill of exceptions is
 
 CHAPTER XII. 
 
 RESERVED QUESTIONS OF LAW. 
 
 § 233. Object of the statute. § 239. Exceptions to the rulings upon 
 
 234. The case must be made up un- which questions are reserved 
 
 der the statute. necessary. 
 
 235. Notifying the court of the inten- 240. Bill of exceptions required. 
 
 tion to reserve questions. 241. Office of the bill of exceptions. 
 
 236. Only questions of law can be re- 242. A motion for new trial neces- 
 
 served. sary. 
 
 237. On what rulings questions may 243. Appeal before final judgment 
 
 be reserved. not authorized. 
 
 23S. Questions of fact must be ex- 244. Supersedeas, 
 eluded by the record. 
 
 § 233. Object of the Statute — The leading object of the statute 
 providing that questions of law may be reserved is to permit 
 questions to be presented without embodying the entire evidence 
 in the record. 1 The statute is remedial in its character, and, 
 upon principle, should be liberally construed, but the earlier 
 cases seem to have proceeded upon an essentially different the- 
 ory. 2 The provisions of the statute, justly interpreted and fairly 
 enforced, are well adapted to simplify procedure, prevent the 
 cumbering of the record with unnecessary matter and to clearly 
 present the questions of law to the appellate tribunal. It is 
 seldom that the entire evidence is required to present questions 
 
 1 R. S., 1SS1, § 630. St. 146; First National Bank v. Hur- 
 
 2 Starry v. Winnings Ind. 311; Doe ford, 29 Iowa, 579; Jeffersonville, etc., 
 v. Herr, 8 Ind. 24; State v. Swarts, 9 Co. v. Swift, 26 Ind. 459. It is also 
 Ind. 221; Zehnor v. Beard, S Ind. 96. fundamental that an appellate tribunal 
 The evidence in full is, in general, only will not weigh evidence. There is. 
 necessary where the question is one of therefore, rarely any reason for bring- 
 fact. The principle is elementary that ing all the evidence into the record, 
 where there is some material evidence Many of the covirts of last resort will 
 tending to support the theory of a party not permit it to be done except in 11:1- 
 he is entitled to the law applicable to usual cases, but, unfortunately, our 
 that theory. State v. Harrison. 5 Jones court has^taken a different view of the 
 (N. C), 115; Breese v. State. 12 Ohio subject. 
 
 (195)
 
 196 APPELLATE PROCEDl RE. 
 
 of law, and in most cases succinct statements of fact present 
 such questions in a clearer and stronger light than it is possible 
 to do by bringing all the evidence into the record. The later 
 decisions have recognized the utility and value of the statute 
 providing for reserving questions of law and have strongly in- 
 timated a purpose to give it a liberal construction. 1 
 
 234. The Case must be made up under the Statute — It is neces- 
 sary that parties who desire to avail themselves of the provis- 
 ions of the statute should conform to its requirements in essen- 
 tial particulars. A party can not appeal under some other 
 statute, and, upon finding his appeal or record defective, as- 
 sume that it is a valid appeal and a sufficient record under the 
 statute providing for reserving questions of law. 2 To permit 
 this to be done would violate the fundamental principle of pro- 
 cedure which requires parties to proceed upon a definite theory. 
 An appeal taken in one distinct mode can not be prosecuted 
 under a statutory provision which prescribes another and differ- 
 ent mode. 
 
 § 235. Notifying the Court of the intention to Reserve Questions — 
 
 A party who desires to reserve questions of law under the 
 statute is required to give notice to the court of his intention. 
 This notice is indispensable. 3 It can hardly be said that the law 
 requires the notice to be in writing, but it is certainly safer to 
 put it in writing, and it is in accordance with good practice to 
 do so. Some of the courts, under statutes somewhat similar to 
 ours, indicate that it is sufficient to give the notice in time to 
 enable the court to cause the record to be properly prepared. 4 
 
 1 Mercer v. Corbin. 117 Ind. 450; 3 Shugart :. Miles, 125 Ind. 445. 
 Jones v. Foley, 121 End. 180; Shugart * It seems quite clear that it is suffi- 
 
 Miles, 12^ Ind. 44;, 449; Shewalter cient it" the notice is given in such a 
 
 v Bergman, 123 Ind. 155; McCoy v. mode and at such a time as to enable 
 
 .121 Ind. 160. the court to make the necessary orders 
 
 2 Shugarl v. Miles, 12^ Ind. 445, 449; for the preparation of the record and 
 Jones v. Foley, 121 Ind. 1S0; McCoy to allow it reasonable time to prepare 
 v. State, 121 Ind. 160; New Albany, the record so as to accurately and fully 
 
 Co. v. Callow, S Ind. 471; Mat- present the facts, the rulings and the 
 tinger v. Lake Shore, etc., Co.. 1 17 Ind. questions of law. In Shugart v. Miles. 
 
 12^ Ind. 445, it is held that a notice
 
 RESERVED QJJESTIONS OF LAW. 197 
 
 The notice must be shown by the record. It is not necessary 
 at the time the ruling is made or exception taken that the ob- 
 jecting party should notify the court that he intends to reserve 
 questions of law under the statute. 1 The notice is, it is mani- 
 fest from the language of the statute, intended to secure a 
 proper record, not to affect the judgment or decision of the 
 court. The objection and exception challenges and directs 
 attention to the ruling, but the notice directs attention to the 
 mode of presenting the questions on appeal and informs the 
 court, if properly framed, of the intention to reserve questions 
 of law. The notice of the intention to reserve questions for 
 consideration on appeal gives character to the case, and hence 
 it should be so full and clear as to enable the court to make 
 such a record, or to direct the making of such a record, as shall 
 correctly exhibit its ruling and enable the "appellate tribunal 
 to apprehend the particular point involved." It is not neces- 
 sary that the notice should go into particulars, but it is neces- 
 sary that it should inform the court of the intention to reserve 
 questions of law, and, with reasonable certainty, indicate the 
 rulings upon which questions are reserved. If it is so definite 
 and certain as to fairly inform the court of the intention to re- 
 serve questions of law and fairly and reasonably designate the 
 rulings upon which questions are intended to be reserved, it 
 will accomplish the purpose the statute intended it should ac- 
 complish, inasmuch as it will enable the court to take the neces- 
 sary steps to mold the record as the law requires. 
 
 given after the return of the verdict and may mold the record as the statute re- 
 at the time of filing the motion for a quires." Nor does Nay v. Byers, 13 
 new trial is sufficient. Ind. 412, decide that notice must be 
 1 Shugart v. Miles, supra. The case given when the ruling is made. It 
 of Drinkout v. Eagle Machine Works, would render the statute practically 
 90 Ind. 423, is limited in the case cited, nugatory to require notice to be given 
 See p. 452. It was not decided in Dil- where the ruling is made, and no good 
 Ion v. Bell, 9 Ind. 320, that the notice purpose would be subserved by such a 
 must be given at the time the ruling is requirement. A party can not know 
 made. What was there said is this: that he will appeal until after verdict, 
 '• To makeup the record properly under and not always then, so that it would 
 the latter provision, counsel should no- be contrary to principle to require him 
 tify the court that it is the intention to to notify the court that he intends to re- 
 take the question involved to the Su- serve questions under the special stat- 
 pre.ne Court, to the end that the court ute.
 
 APPELLATE PRl >CEDURE 
 
 § 23G. Only questions of law can be Reserved — It is settled by 
 the decisions — and settled in accordance with principle — that 
 only questions of law can be reserved.' This is obviously the 
 ti lie doctrine since, as a general rule, questions of fact are not 
 decided on appeal. It is the correct doctrine for the further 
 reason that a question of fact can not be considered without the 
 whole evidence, and a leading purpose of the provision re- 
 specting reserved questions is to dispense with the necessity of 
 bringing up all the evidence. It is safe to say that where all the 
 evidence is assumed to be incorporated in the record the clear 
 inference is that the case is not one prepared in accordance with 
 the statutory provision under immediate discussion. As appel- 
 late tribunals decide onl} r such questions as have been decided by 
 the trial court, it is necessary that the questions reserved should 
 affirmatively appear to have been appropriately presented to 
 the trial court for decision and by that court decided. 2 It must 
 further appear that the questions of law decided by the trial 
 court are material, 3 and that the)' are not mere abstractions. 4 It 
 is evident, therefore, that there must be enough in the bill of 
 exceptions which assumes to present the questions reserved, to 
 affirmatively show their materiality and to show, also, that 
 there was a real case pending at the time the rulings were 
 made. If it appears that there were ordinary adversary pro- 
 ceedings the presumption, in the absence of countervailing 
 facts, is, that there was a real and not a feigned controversy. 5 
 
 § 237. On what Rulings questions may be reserved — The statute 
 provides for reserving "any question of law decided by the 
 court during the progress of the cause," and provides, also, for 
 reserving questions upon rulings on demurrers to pleadings. 6 
 The provision concerning questions arising on demurrer is of no 
 
 1 Fouty v. Morrison, 73 Ind. $33; * Commonwealth v. McDowell, S6 
 
 Shugarl v. Miles, 125 End. 445, 449; Pa. St. 377; Woodard v. Baker, 116 
 
 Commonwealth v. McDowell, 86 Pa. Ind. 152; Irwin v. Wickersham, 25 Pa. 
 
 77. Mixed questions of law and St. 316. 
 
 can not be reserved. Woodard 6 Witz v. Dale (Ind.), 27 N. E. Rep. 
 
 Baker, [16 ] ml. 152. I^V 
 
 1 Shorl v. Stutsman, 81 Ind. [15. 6 R. S., § 640. 
 3 Pi, 1 si • West, 29 Ind. 266; Miller 
 Si ligman, 58 Ind. |.6i 1
 
 RESERVED QUESTIONS OF LAW. I'll) 
 
 practical utility or importance, for the ordinary mode of pre- 
 senting questions upon rulings on demurrer is quite as effective 
 as that by reserving questions, and is simpler and less likely to 
 result in error or confusion. 1 But questions upon pleadings 
 may well and effectively be reserved where they do not arise 
 on demurrer, as, for instance, where they arise upon a motion 
 to make more specific, to compel a party to answer interroga- 
 tories, to strike out interrogatories, or the like. Questions aris- 
 ing on several rulings made in the progress of a cause may be 
 reserved, for the party is not confined to a single ruling. Anv 
 question of law arising on a ruling made during the progress 
 of the case ma}' be reserved. Questions upon rulings on the 
 evidence, 2 questions on instructions, 3 and, indeed, all material 
 questions of law actually arising upon rulings made during the 
 progress of the cause, may be reserved for consideration on 
 appeal. 
 
 § 238. Questions of fact must be excluded by the Record — The 
 
 only questions which can be reserved are questions of law. 1 
 As only questions of law can be presented the facts must be so 
 stated as to show the questions and to exclude an)- question of 
 fact. The question of law must appear to have been presented to 
 and decided by the trial court." The facts upon which the ques- 
 tions of law arise must appear in such a form, although not at 
 full length or in detail, as will enable the appellate tribunal to 
 apprehend the nature of the questions and see that they are not 
 mere abstractions, 6 but the facts sufficiently appear where the 
 court makes a statement clearly showing their character and 
 
 1 In Bentlev v. Dunkle, 57 Ind. 374. question reserved arose on rulings upon 
 one of the questions reserved was upon the instructions. 
 
 a ruling on a demurrer to the complaint. * Fouty v. Morrison, 73 Ind. 3$$; 
 
 and the court, adjudging the complaint Shugart v. Miles. 125 Ind. 445, 449. 
 
 bid. reversed the judgment hut did not The question reserved must, as some of 
 
 deem it necessary to decide the other the cases say, "be one of pure law." 
 
 questions presented. Blended questions of law and fact can 
 
 2 Bruce v. Tvler. 127 Ind. 468. In not be reserved. Commonwealth v. 
 the ease cited a question was reserved McDowell. 8b Pa. St. 377. 
 
 upon a ruling admitting evidence, and 5 Short v. Stutsman. Si Ind. 115. 
 the judgment was reversed. 6 Irwin v. Wickersham, 25 Pa. St. 316. 
 
 3 In Bissell v. Wert, 35 Ind. 54, 62, the
 
 200 APPELLATE PROCEDURE. 
 
 bearing. It is the facts and not the evidence that the court 
 should embrace in its statement. 
 
 § i39. Exceptions to the rulings upon which Questions are Re- 
 served, necessary — In accordance with the general principle of 
 practice it is held, without diversity of opinion, that an excep- 
 tion to a ruling is essential to make it available in a case where 
 questions of law are reserved. The absence of a proper and 
 opportune exception is fatal. The exception must, of course, 
 be taken at the time the ruling challenged is made, for, so fat- 
 as concerns exceptions, the rule is the same in cases where 
 questions of law are reserved as in other cases. 1 
 
 § 240. Bill of Exceptions Required — In all cases except those 
 in which the questions arise upon a ruling on demurrer, a bill 
 of exceptions is required. The provisions of the code upon 
 the subject of reserving questions of law are evidently bor- 
 rowed from the common law practice of presenting special 
 questions of law by a bill of exceptions, and at common law 
 the bill must make the case. In jurisdictions where statutes 
 somewhat similar to ours are in force it is held that the bill of 
 exceptions must contain the whole case, including the motion 
 for a new trial and similar motions. 2 There is reason for the 
 conclusion that where a bill is necessary the whole case must 
 be exhibited by the bill. The statute seems to contemplate 
 this, for it provides, that the party " shall notify the court that 
 he intends to take the question of law to the Supreme Court 
 upon the bill of exceptions only, and the court shall thereupon 
 cause the bill of exceptions to be so made that it will distinctly 
 and briefly embrace so much of the record only and the state- 
 
 1 The record must appropriately show of the ruling. Kleinschmidt v. Mc- 
 that the exception was taken in due Andrews, 117 U. S. 282. See Ex- 
 form and proper reason. Dickson v. ceptions, post. The "case made" 
 Rose, S7 Ind. 103; Engard v. Frazier, 7 under the Kansas code (§ 547) is simi- 
 Tnd. 154; Phelps v. Mayer, 15 How. (U. lar to a reserved case under our statute, 
 S.) 1 60; Turner v. Yates, 16 How. (U. and it is held that exceptions must be 
 S.) 14. For an able and elaborate re- taken as in other cases. Hogden v. 
 view of the authorities see, Danks v. Commissioners, 10 Kan. 637. 
 Rodeheaver, 26 W. Va. 274. But an ' Parker v. Remington, etc., Co., 24 
 exception can not be taken in advance Kan. 31.
 
 RESERVED QUESTIONS OF LAW. 201 
 
 ment of the court as will enable the Supreme Court to appre- 
 hend the particular question involved." 1 The restriction as to 
 the notice, — requiring that it shall inform the court that the 
 party intends to take the case to the appellate tribunal on " the 
 bill of exceptions only," 2 — and the provision that the court shall 
 cause a bill of exceptions "to be so made that it will distinctly 
 and briefly embrace " part of the record, clearly imply that 
 the whole case must be contained in the bill of exceptions. 
 We can not escape the conclusion that, in view of the object of 
 the statute, the source from which its essential provisions were 
 obtained, and the language employed by its framers, the bill 
 of exceptions must, where a bill is required, contain the whole 
 case. 3 
 
 § 241. Office of the Bill of Exceptions— The office of the bill of 
 exceptions is, as we believe, to present the whole case on ap- 
 peal. This is the rule under statutes somewhat different from 
 ours, yet in their object and leading characteristics very sim- 
 ilar. The object of the statute is, as we conceive, to secure a 
 bill complete in itself, 4 and so framed as to clearly and fully 
 present all the questions of law reserved. It must embrace all 
 that is necessary to enable the appellate tribunal " to apprehend 
 the particular questions involved " 5 since this is what the law 
 commands the trial court to make it do. The requisite facts 
 
 1 R. S. iSSi , § 630. the record. To comply with the stat- 
 
 2 The adjective '"only " is significant ute, to present errors for review, it must 
 in view of the words with which it is embody a statement of so much of the 
 associated. issue, proceedings, evidence and other 
 
 3 There is nothing in the case of Reid matters in the action as may be neces- 
 V, Houston, 49 Ind. 1S1, opposing this sary to bring to our notice from an ex- 
 conclusion. That case does not decide amination of the paper settled and au- 
 that reserved questions may be pre- thenticated as a case made, the errors 
 sented without a bill of exceptions, nor complained of. Again, one object, we 
 does it decide that where a bill is re- know of a case made, an object not al- 
 quired, a case may be shown partly by ways appreciated by counsel, is to re- 
 the bill and partly in some other mode, duce the size of the record." In another 
 
 4 In speaking of a "case made" the case, it was said that the "case must be 
 Supreme Court of Kansas said in the complete in itself." See, Parker v. 
 Missouri, etc., Co. v. Palmer, 19 Kan. Remington, etc., Co., 24 Kan. 31; 
 471, "It is to contain matters of record Lownsbury v. Rakestraw. 14 Kan. 151. 
 as well as proceedings not entered on 5 Miller v. Seligman, 5S Ind. 460,463.
 
 
 APPELLATE PROCEDURE. 
 
 must be briefly stated. The evidence in full need not be stated 
 unless the case is one where all the evidence is necessary in 
 order to present the questions of law. 1 Where, however, all 
 the evidence is necessary it is better and safer to prepare the 
 ease for appeal in the ordinary mode. The questions reserved 
 must be so presented as to make it affirmatively appear that the 
 rulings were injurious to the complaining party, 2 and to do this 
 it is necessary to exclude the presumption which prevails in 
 favor of the trial court."' While it is true that the statute in 
 terms requires a statement of the court and not the evidence, it 
 is, nevertheless, true, that under the construction given the 
 statute there are cases where part, at least, of the evidence may 
 be exhibited instead of the facts. 4 But, as we suppose, where 
 specific statements of the court are embodied in the bill and 
 they are so full, complete and definite as to accurately and 
 clearly exhibit the questions involved, the absence of the evi- 
 dence is not material. If it were not for the decisions we should, 
 indeed, be inclined to the opinion that it is not proper to set 
 forth the evidence inasmuch as the statute makes no provision 
 
 1 Conner v. Town of Marion, 112 Ind. whole record. Where t lie error is ap- 
 517 We can not avoid the conclusion parent without such special statement 
 
 that the framers of the statute intended 
 that the facts should be embodied in the 
 ment of the court and not the evi- 
 dence, hut the cases in our reports in- 
 dicate a different doctrine. 
 
 or without the evidence, there is no ne- 
 cessity for either." 
 
 * In the case of The Indiana, etc.. Co. 
 V. Adams. 1 1 j Ind. 302, 307, it was said: 
 "A mere recital by the court of its con- 
 
 s Shugarl v. Miles. [25 Ind. 445, 450; elusions touching the point in contro- 
 
 Downs v. Opp, 82 Ind. 166; Mitchell v. versy is nol sufficient, Construing §§ 
 
 Dibble, 14 Ind. 526. 627, 630,, R. S. 1SN1, in pari materia, it 
 
 3 Hedrick v. Hedrick, 74 Ind. 7S; In- is necessary, when an appeal is taken 
 diana. etc.. Co. v. Adams, 112 Ind. 302; under the latter section upon a bill of 
 Conner v. Town of Marion, 112 Ind. exceptions only, and the question re- 
 517; Perkins v. Hayward, 124 Ind. 445; served is upon the exclusion of evidence, 
 Starry v. Winning, 7 Ind. 311. If the that the hill of exceptions should show 
 error is exhibited and its harmful char- enough of the case and the evidence 
 acter shown, the question is well re- touching the point in controversy to 
 served. In Lane v. Miller, 17 Ind. 5S, show the relevancy of the evidence re- 
 the court, in speaking of the statute un- jected. Downs v. Opp, S2 Ind. 166. In 
 del consideration, said: "That section the absence of anything beyond the re- 
 was intended to enable parties to avail citals in the bill of exceptions, we must 
 themselves of an error 1>\ stating the presume the evidence rejected was ir- 
 case so as topresentthe error ami make relevant.*' 
 it apparent without bringing up the
 
 RESERVED QJJESTIONS OF LAW. 203 
 
 for setting forth the evidence, but expressly requires a state- 
 ment of the court. The express mention of the one thing im- 
 plies the exclusion of the other. We are, at all events, satistied 
 that where the proper statements of the court are given, the evi- 
 dence is not required. 
 
 § 242. A motion for New Trial necessary— The earlier cases 
 were in conflict upon the question whether a motion for a new 
 trial was or was not required, but it has been finally settled that 
 such a motion is necessary. 1 This rule is in accordance with 
 the wide reaching general principle that a motion for a new 
 trial is essential in order to give the trial court an opportunity 
 to review its rulings and, if need be, to correct errors into which 
 it may have fallen. The rule is defensible upon the further 
 ground that a statutory prevision is not to be isolated and de- 
 tached from other provisions, but is to be considered in connec- 
 tion with them. The doctrine that all the statutory provisions 
 upon the same general subject should receive consideration, if 
 adhered to, tends to prevent discord and secure symmetry and 
 harmony, so that the rule as finally settled has much to com- 
 mend it. 
 
 § 243. Appeal before final judgment not authorized — The statute 
 does not confer, nor assume to confer, a right of appeal ; it 
 simply provides the mode in which questions of law may be re- 
 served. The fact that questions of law are reserved exerts an 
 influence upon the mode of presenting the questions and of 
 preparing the record, but leaves the right to appeal to be deter- 
 mined by other rules of law. The general rule that an appeal 
 will not lie from intermediate rulings applies to cases where 
 questions of law are reserved, and an attempt to appeal before 
 final judgment will be fruitless. 2 
 
 § 244. Supersedeas — The statute, in terms, makes a case where 
 questions of law are reserved a peculiar one in regard to the 
 
 1 State v. Swarts,9 Ind. 221; Kent v. Ind. 517; Love v. Carpenter, 30 Ind. 
 
 Lawson, 12 Ind. 675; Carver v. Dau- 2S4; Shugart v. Miles, 125 Ind. 445. 
 
 benspeck, 22 Ind. 23S; Starner v. State. 2 Taylor v. Board of Commissioners. 
 
 61 Ind. 360; Rousseau v. Corey, 62 Ind. 120 Ind. 121. 
 S50; Conner t\ Town of Marion, 112
 
 204 APPELLATE PROCEDURE. 
 
 stay of proceedings upon the judgment. Its language is ex- 
 plicit and it seems clear that a stay of proceedings can only be 
 ordered by the appellate tribunal or some one of its members. 
 We have been unable to find any decision giving a construction 
 to the statute, but its language seems so clear and decisive that 
 there is no room for construction. 1 
 
 1 The language of the statute is this: unless so ordered by the SupremeCourt 
 ■ The appeal in such a case shall not or some judge thereof." R. S. 1SS1, § 
 stay proceedings upon the judgment 631.
 
 CHAPTER XIII. 
 
 MODES OF APPEAL IN CIVIL ACTIONS. 
 
 § 245. The different modes of appeal. § 250. Appeal after term. 
 
 246. Appeals in term. 251. Classes of appeals after term. 
 
 247. Requisites of an appeal in term. 252. Civil actions — Definition. 
 
 248. A bond essential to an appeal in 253. What cases are appealable as 
 
 term. civil actions. 
 
 249. Ineffectual attempt to appeal in 
 
 term. 
 
 § 245. The different modes of Appeal — While the remedy in all 
 civil actions is by appeal there are, nevertheless, different modes 
 of procedure. All civil actions are appealable as such under 
 the general rules prescribed for appeals, but the procedure is 
 not the same in all cases. A party may elect which of the stat- 
 utory methods he will pursue, and an appeal perfected within 
 the time prescribed and in the manner provided will be effect- 
 ive. But it is to be borne in mind that the general rules gov- 
 erning appeals in civil actions apply to appeals from final judg- 
 ments and not to appeals from interlocutory orders. As we 
 have already suggested, express and special provisions govern 
 appeals from interlocutory orders, and from such an order no 
 appeal can be effectual unless taken within the time and in the 
 mode prescribed. This rule is not contravened by the doctrine 
 that errors respecting interlocutory orders may, as we have 
 elsewhere shown, be made available on a general appeal bring- 
 ing up the whole case. To prevent misconception it may be 
 well enough to say that there is an essential difference between 
 taking and perfecting an appeal under a special statute and 
 making errors available in the appellate tribunal in cases where 
 a general appeal is taken and perfected as the law requires. 
 
 § 246. Appeal in Term — The first of the modes of appealing in 
 civil actions may be appropriately designated as "An Appeal 
 
 (205)
 
 APPELLATE PROCEDURE. 
 
 in Term." 1 A marked feature of an appeal in term is that pro- 
 cess need not be issued against, or served upon, the party 
 against whom the appeal is prosecuted. 2 The party who ap- 
 peals must do what is required to be done during term or within 
 the time fixed in term by the trial court, otherwise his appeal 
 will not be effective as a term time appeal ; whether a different 
 mode of procedure may be adopted is not here the immediate 
 question, since we are directly concerned with an appeal in 
 term.- 1 To perfect an appeal in term these steps must be taken : 
 i . An appeal must be prayed during the term at which the 
 judgment was rendered, and it must be granted during that 
 term. 2. The penaltv of the bond must be fixed and the surety 
 named during the term at which the judgment was rendered. 
 3. The bond must be filed during that term and approved by the 
 court, or the court must, during that term, fix a time within 
 which the bond shall be filed, and it must be filed and approved 
 by the court within the time designated. 4. The transcript 
 must be filed in the office of the clerk of the Supreme Court 
 within sixty days after the filing of the bond. 
 
 § 247. Requisites of an Appeal in Term — The first requirement 
 of the statute governing appeals in term needs no discussion, 
 nor does the second. The third requirement seems to require 
 some consideration and for clearness and convenience it may 
 be thus divided : The bond must be filed within the prescribed 
 time ; it must be approved by the court. 4 In our judgment the 
 bond must be filed as required by the statute or there is no ef- 
 
 1 R. S., § 63S. within the time prescribed or to the 
 
 3 Conawayf. Ascherman, 94 Ind. 187, question as to the effect of the appeal 
 
 18S. considered with respect to staying pro- 
 
 3 We are not now considering the ef- ceedings. We are considering it with- 
 fect of the appeal in term, nor are we out any reference to consent or waiver, 
 dealing iwith the question whether the express or implied. We are, in short, 
 failure to perfect an appeal as in term attempting to prove what the law is 
 will preclude an appeal in a different where the appellee appropriately and 
 mode. opportunely heists that the appeal i> not 
 
 4 These propositions, we may say by effective as an appeal in term upon the 
 way of preface, we discuss with refer- ground that the requirements of the 
 
 to the question, what is essential statute have nol been complied with by 
 to an appeal in term? and not with ref- the party asserting a right to prosecute 
 erence to the effi iOnd not given a term time ap,
 
 MODES OF APPEAL IN CIVIL ACTIONS. 
 
 in- 
 
 fective appeal in term. 1 The statute declares that a bond must 
 be filed within the time designated, and this requirement is as 
 
 1 We are aware that this conclusion 
 is opposed to the views of Judge Bus- 
 kirk, who says, " Where, therefore, a 
 party takes an appeal in term, not 
 intending it to operate as a supersedeas, 
 he should simply pray an appeal and 
 file his transcript in the clerk's office 
 of the Supreme Court, and the appeal 
 will be operative, but will not stay exe- 
 cution or other proceedings on the 
 judgment." Buskirk's Prac. 62. The 
 learned author cites the cases of Jones 
 v. Droneberger, 23 Ind. 74; Sturgis v. 
 Rogers, 26 Ind. 1; Burt v. Hoettinger, 
 28 Ind. 214; Ham v. Greve, 41 Ind. 531, 
 but these cases do not support him. In 
 the case last cited he said, in writing the 
 opinion of the court, that, " The fixing 
 of the penalty of the bond and the filing 
 of the same within the time directed by 
 the court are as essential to the effec- 
 tiveness of the appeal in term so as to 
 stay proceedings, as is the filing of the 
 bond within thirty days from the judg- 
 ment to an appeal from a justice of the 
 peace. It would hardly be pretended 
 that if a defendant in a judgment before 
 a justice of the peace should file a bond 
 after the expiration of thirty days, the 
 surety in the bond would be held liable 
 for such judgment." It seems to us 
 that the reasoning proves that where no 
 bond is filed within the time required 
 by law there is no effective appeal in 
 term. Whether an appeal may be 
 taken upon notice is not the question, 
 but the question is, can the court hold, 
 when objection is made, that there 
 may be an appeal in term although no 
 bond is filed as the law requires? We 
 think that the fundamental error is in 
 assuming that some, only, of the steps 
 made essential by the statute are re- 
 quired to be taken within the time lim- 
 ited. We believe, on the contrary, that 
 all that the law makes essential to the 
 
 effectiveness of an appeal assumed to be 
 taken in a particular mode must be done 
 as the law prescribes. We have, on 
 preceding pages, shown that the appeal 
 must be fully perfected within the time 
 by doing what, the law requires. Ante, 
 § 128. In the paragraphs that follow 
 additional authorities will be cited, and 
 additional reasons given for our opin- 
 ion that the bond must be filed as t la- 
 law requires or there is no appeal in 
 term. While it is true that a bond is 
 not always essential to an appeal, yet, 
 where it is made essential, there can be 
 no appeal in the mode in which it is 
 required without it, and it is made es- 
 sential to an appeal in term by the law. 
 Webber t'. Bueger (Col.), 27 Pac. Rep. 
 871. There may be an appeal in other 
 modes, but not a term appeal, without 
 a bond. Where no bond is filed there 
 is no appeal in term, and the appeal 
 must be upon notice. This conclusion 
 is fully supported by the decision in 
 Holloran v. The Midland Railroad Co., 
 28 N. E. Rep. 549, where it was said, 
 "In this case there was not a compli- 
 ance with section 63S, supra. There 
 was no time fixed for the filing of a bond 
 and no bond was filed in accordance 
 with the provisions of the statute. All 
 appeals not taken in accordance with 
 section 638, supra, require notice to be 
 given." As sustaining this conclusion 
 the court cited Ruschaupt v. Carpenter, 
 63 Ind. 359; Hays v. Wilstach, 101 Ind. 
 100; Goodwin v. Fox, 120 U. S. 77c;. 777. 
 The conclusion asserted in Holloran v. 
 Midland Railway Co., supra, is sup- 
 ported by many analogous cases. Weir 
 v. St. Paul, etc., Co., iS Minn. 155; 
 McVev v, Heavenridge, 30 Ind. 100; 
 Leffel v. Obenchain, 90 Ind. 50. See, 
 also, cases cited in the paragraphs that 
 follow.
 
 208 APPELLATE PROCEDURE 
 
 mandatorv as any of the others, and, as said by the Supreme 
 Court of the United States, "the court can not dispense with 
 an act required by the law-making power." Our own cases 
 show that where the statute requires that a bond shall be tiled 
 in order to perfect an appeal, there is no effective appeal unless 
 the bond is filed as the statute requires. The cases in which 
 this is expressly held are, it is true, based upon the statute 
 which permits appeals from interlocutory orders, 1 but the prin- 
 ciple asserted is the same. The Federal courts hold that where 
 a bond is required an appeal is not perfected until one is filed. 2 
 Many cases affirm that where the statute requires a bond one 
 must be filed or the appeal will be dismissed. 3 Some of the 
 courts hold that where a bond is required and none is filed the 
 appellate court has no jurisdiction, 4 but we think that under our 
 statute the failure to file a bond may be obviated by giving 
 notice and appealing in the mode prescribed for appealing after 
 term. It is laid down by our own cases that the bond must be 
 approved by the judge, 5 and the Supreme Court of the United 
 States so lays down the rule, holding that the authority to ap- 
 prove the bond can not be delegated. 6 So it has been held 
 
 1 Staley v. Dorset, n Ind. 367; Keener. White, 136 Mass. 23; Wheeler, 
 Berry v. Berry, 22 Ind. 275; Simpson e£c, Co. v. Burklingham, 137 Mass. 581; 
 : . Pearson, 31 Ind. 1. Putnam v. Boyer, 140 Mass. 235; Lit- 
 
 2 The S. S.Osborne, 105 U. S. 447, tie v. Jacks, 6S Cal. 343; Sutherland v. 
 4^0; Providence- Washington Ins. Co. Putnam (Ariz.). 24 Pac. Rep. 320; 
 : Wager, 37 Fed. Rep. 59; Boyce v. Danvers v. Durkin, 14 Ore. 37, 12 Pac. 
 Grundy, 6Pet. 777. But a bond may be Rep. 60; Rozier v. Williams, 92 111. 1S7; 
 waived. Kingsbury v. Buckner, 134 Mailman v. Texas, etc., Co., 40 Texas, 
 
 - 650. 465; Canfield v. City of Erie, 21 Mich. 
 
 ; We cite a few of the numerous cases. 160. 
 Bank of America v. Fortier, 27 La. Ann. 5 McCloskey, etc.. Co. v. Indianapo- 
 243; Henshaw v. McDowell, 99 N. C. lis, etc., Co., 87 Ind. 20; Burk v. How- 
 He Lashnutt v. Selhvood, 10 Ore. aid. [5 Ind. 219. There may be a 
 ^1 ; Chicago, etc., Co. v. The President, waiver by agreement. Easter v. Ackle- 
 etc, i->| IH.91; Reed v. Creditors, 37 mire, 81 Ind. 163; Jones r. Droneberger, 
 La. Ann. 907; Stratton v. Graham, 68 23 Ind. 74. 
 
 Cal. 168; Sharon v. Sharon. 68 Cal. 6 O'Reilly v. Edrington, 96 U. S. 724; 
 
 326; Eureka Steam Heating Co. v. Ilaskins v. St. Louis, etc., Co., 109 U. 
 
 email, 67 Wis. 118; Green v. Cas- S. 106; National Bank v. Omaha, 
 
 tello, 35 Mo. App. 127; Law v. Nelson, 96U.S.737. The bond may be approved 
 
 14 Col. 409, 24 Pac. Rep. 2. by the judge out of court. Hudginsr;. 
 
 4 Henderson V. I'.enson. 141 Mass. Kemp. iS How. (U. S.) 530. 
 218; Stantom t. Ballard, 133 Mass. 464;
 
 MODES OF APPEAL IN CIVIL ACTIONS. 
 
 209 
 
 elsewhere. 1 It seems clear that if there must be a bond to ap- 
 prove there must be a bond filed within the time limited or 
 there is no appeal in term. 2 
 
 § 248. A Bond Essential to an Appeal in Term — It is evident 
 that the framers of the statute in providing for an appeal in 
 term intended to designate all the steps that should be taken to 
 perfect such an appeal, not to provide merely some of the steps 
 that should be taken by the appellant. If one of the steps des- 
 ignated is important, so are they all, and the courts have as 
 little power to dispense with one step as with all. What the 
 statute requires must be done, or there is no appeal in term. 3 
 The section of the statute giving an appeal in term 4 provides for 
 
 1 Julian v. Rogers, S7 Mo. 229. 
 
 2 In the case of Averill v. Dickerson, 
 1 Blackf. 3, the general doctrine Ave 
 assert was laid down and the court 
 cited the case of Hardin v. Owings, 1 
 Bibb. 214. In stating what must be 
 done in order to effect an appeal in 
 term Judge Buskirk says: "1. An ap- 
 peal must be prayed for and granted by 
 the court during the term of the court 
 at which the judgment was rendered. 
 2. The appeal bond must then be filed 
 and approved by the court, or it must 
 be filed within such time as the court 
 may direct of record; but in either 
 event the penalty of the bond must be 
 fixed and the surety approved by the 
 court. 3. If the bond is not filed in 
 term, the court must fix the penalty, 
 approve the surety, and direct in what 
 time the bond must be filed. 4. The 
 bond must be filed within the time di- 
 rected. 5. The transcript must be filed 
 in the office of the clerk of the Supreme 
 Court within sixty days from the time 
 the bond is filed." Buskirk's Prac. 61. 
 This is a correct statement of what 
 must be done to perfect an appeal in 
 term, and we think the author's state- 
 ment, quoted on a preceding page, that 
 a bond need not be filed is erroneous. 
 
 ture 
 
 14 
 
 into error by confusing an appeal upon 
 notice Avith an appeal in term wherein 
 no notice is required. The performance 
 of all the acts required by the statute 
 dispenses with notice, but the court can 
 not rightfully adjudge that performance 
 of a part only of the acts required by 
 law will dispense with notice. 
 
 3 The decision in Burt v. Hoettinger, 
 2S Ind. 214, does not oppose this con- 
 clusion, for there was no question in that 
 case as to what was necessary to con- 
 stitute an appeal in term. There was 
 not any such question in Sturgis v . Rog- 
 ers, 26 Ind. 1, and, of course, there could 
 be no decision upon it, nor was there 
 any. In Jones v. Droneberger, 23 Ind. 
 74, the bond was filed within the time 
 fixed by the court, although there is in 
 that case a single sentence declaring 
 that the appeal was good without a 
 bond. The question was not before the 
 court, no authorities are cited and no 
 reasons are given. Evidently the court 
 did not mean to decide a question not 
 before it, and what it said is purely ob- 
 iter dicta and that of unusually little 
 weight. 
 
 * R. S., § 63S. The provisions of this 
 section require all the acts essential to 
 an appeal in term to be done below, ex- 
 cept that of filing the transcript. If not
 
 210 APPELLATE PROCEDURE. 
 
 a complete mode of appeal, and does not simply provide for 
 some of the steps that must be taken. It dispenses with the 
 important element of notice which is required in all other cases, 
 but in doing this substitutes a system of procedure requiring 
 that all the acts specified shall be performed. 1 If it be held that 
 tiling a bond is not essential to the appeal in term, then it is de- 
 clared that it is in the power of the courts to accept as binding 
 some of the provisions of one section of the statute and reject 
 others, and this, too, where the statute is directed to a single 
 object and intended to create a single and complete mode of 
 appeal. Nor is this all, for, if the filing of the bond be not es- 
 sential to the validity of an appeal in term, no one of the other 
 enumerated acts can be deemed essential, for all are firmly in- 
 terlaced, and severance is neither legally nor logically possible. 
 It would result in rendering provisions of the statute ineffective, 
 and it would also produce conflict to declare that a bond is not 
 required as one of the steps of the appeal. Notice is required 
 where no bond is exacted, as a step of the procedure, and it is 
 evident that the statute contemplates that there shall be distinct 
 modes of appeal in one of which a bond is essential to the ap- 
 
 there done the appeal is not perfected Langley v. Warner, i N. Y. 606; Kel- 
 
 as a term appeal, although there may sey V. Campbell, 3S Barb. 23S; Dresser 
 
 be a second appeal. But a second ap- v. Brooks, 5 I low. Pr. 75; Cowdin v. 
 
 peal implies the ineffectiveness of the Teal, 67 N. Y. 5S1. It is true that the 
 
 first, bond serves a double purpose, but this 
 
 1 Judge Works says: "The statute an- does not prove that it is not a step in per- 
 
 thorizes an appeal during the term. A fecting the appeal. Doing one act is not 
 
 must be given in the court below sufficient to give efficacy to the appeal; 
 
 during the term, or within the time fixed all that the statute requires must be done. 
 
 !>\ the court, and the transcripl must be Pratt t\ Western Stage Co., 26 Iowa, 241. 
 
 filed within sixty days after filing the We understand quite well that there is a 
 
 bond." 2 Works' Practice, 30. In June difference between perfecting an appeal 
 
 v. Payne, 107 Ind. 307. the tiling of the and obtaining a stay of proceedings, but 
 
 bond is recognized as a step of the pro- this does not affect the validity of our 
 
 tl ten id: "An appeal proposition thai the statute makes a 
 
 pra} - ed for in term and perfected within complete mode of appeal, prescribes 
 
 the time limited by the court, suspends what steps shall be taken, and that as 
 
 all proceedings on the judgment ap- the filing of the bond is one of the steps 
 
 pealed from." The principle that where prescribed, the performance of that act, 
 
 the statute makes a bond necessary to unless waived, is essential to the effect- 
 
 the appeal, it must be filed is asserted iveness of an appeal in term, 
 in Raymond v. Richmond, 76 N.Y. to6;
 
 MODES OF APPEAL IN CIVIL ACTIONS. 
 
 211 
 
 peal, not merely to the stay of proceedings. There can be no 
 doubt that filing a transcript is part of the procedure essential 
 to the effectiveness of the appeal, and the requirement that the 
 transcript shall be filed is inseparably linked with the filing of 
 the bond, and a severance can only be effected by a violent and 
 unnatural construction. 1 
 
 § 249. Ineffective Attempt to Appeal in Term — An ineffectual 
 attempt to appeal in term will not preclude an appeal upon 
 notice. 2 But the acts required to be done in order to perfect an 
 appeal without giving notice must be substantially performed, 
 or an appeal must be taken by giving notice. 3 The only method 
 
 1 R. S., §§638, 639, 640. The revision 
 of 1SS1 adds a provision to section 633 
 of the code of 1852. That provision 
 reads thus: "That nothing in this sec- 
 tion shall be so construed as to prevent 
 any such appellant from filing the tran- 
 script and perfecting an appeal after- 
 ward according to law." If the failure 
 to do the acts indicated in the provision 
 of the statute which prescribes the mode 
 cf appeal designated as an appeal in 
 term, did not destroy the effectiveness 
 of the appeal assumed to be taken as a 
 term appeal, there would be no neces- 
 sity for providing for a second appeal 
 in a different mode, because of the fail- 
 ure to perfect the first. The true way 
 to harmonize the provisions of the stat- 
 ute referred to is to hold that there are 
 two general classes of appeals in civil 
 actions; one, appeals upon notice, and 
 the other, appeals in term, and that the 
 appeal of the latter class can not be 
 perfected without filing a bond. We 
 think this conclusion is demanded by 
 the fact that the statute enumerates 
 what steps shall be taken to perfect an 
 appeal in term, and that the filing of the 
 bond is one of the steps made requisite. 
 But there are other provisions of the 
 code which require consideration, not- 
 ably the provision which reads thus: 
 
 " No appeal shall be dismissed for any 
 informality or defect in the transcript 
 or appeal bond, if the appellant shall 
 correct the informality or defect within 
 a reasonable time." R. S., § 657. If 
 there is not a class of appeals, wherein 
 a bond is required as essential to the ap- 
 peal, this provision respecting the bond 
 is utterly meaningless, but that conclu- 
 sion can not be reached without vio- 
 lating elementary principles of law. 
 When all the provisions of the statute 
 are given consideration the conclusion 
 we have stated seems the correct one, 
 and it is certainly the only doctrine 
 upon which the statutory provisions 
 can be fully harmonized and an unnat- 
 ural and violent severance of the ele- 
 ments which are enumerated as essen- 
 tial to an appeal in term prevented. 
 
 2 The statute secures a right to per- 
 fect a defective or incomplete appeal, 
 for this is the evident purpose of section 
 
 6 39- 
 
 3 Goodwin v. Fox, 120 U. S. 775, 
 This case lays down what seems to us 
 to be, beyond controversy, the true 
 rule. It was there said: "But as the 
 bond was not filed until after the term, 
 a citation or something equivalent was 
 necessary as a matter of procedure to 
 give the appellees notice that the appeal
 
 
 APPELLATE I'ROCKDL'RE. 
 
 of avoiding the obligation to give notice is by an appeal in term, 
 and unless all that the statutes makes necessary to an appeal 
 in term is done, there is no appeal under the statutory provisions 
 regulating appeals in term. One of the chief purposes of the 
 ite was 1 1 > provide a mode of appeal without notice, and in 
 the place of notice it puts the acts enumerated. Upon principle 
 it must be concluded that there can be no effective appeal in 
 term unless all the essential acts required by the statute are 
 performed, and this conclusion is required by considerations of 
 expediency and fairness. A party against whom an appeal is 
 assumed to be taken in term has a right to presume that it is 
 waived or abandoned, unless the party who assumes to prose- 
 cute the appeal does what the statute requires, and this as- 
 sumption authorizes him to remain inactive. The failure to file a 
 bond may, of course, be waived by a joinder in error, by filing 
 a brief, or by any similar act, but if the objection that no bond 
 was filed is duly made, the conclusion must be that the appeal 
 as in term is ineffective. If, however, some bond, although 
 an informal one, has been filed, it will save the appeal, unless 
 specially objected to, and even then, if found to be informal, 
 the court may allow a reasonable time to file another bond. 1 
 If the appealing party attempts to file a bond within the time 
 limited he puts himself in a position very different from that 
 
 which had been allowed in term time 
 had not been abandoned by the failure 
 to furnish the security before the ad- 
 journment." The court cited Dodge v. 
 Knowles, 114 U. S. 430; Hewitt v. Fil- 
 bert, 116 U. S. 142. The principle as- 
 serted by us is that embodied in Rules 
 I .Mid II of the Supreme Court, for 
 those rules can not be construed as dis- 
 
 ing with the necessity of filing a 
 bond in order to perfect an appeal in 
 
 . for a rule of court can not stand 
 against a valid statute. The effect of 
 
 rules referred to is to permit an ap- 
 peal upon notice where the appeal in 
 term is ineffective. Ante. § 247, note. 
 1 P.i^ler v. Waller, 12 Wall. 142; 
 
 ard V. Corneau, I02 - U. S. 161; 
 
 O'Reilly v. Edrington, 96 U. S. 724; 
 New Orleans Ins. Co. v. Albro Co.. 1 1 2 
 U.S. 506. ThecaseofHadley r. Hill, 7,5 
 Ind. 442, does not decide that there may 
 be an appeal in term without a bond, 
 hut does decide that the failure to file 
 the transcript within sixty days does 
 not destroy the effectiveness of the ap- 
 peal. Even this is questionable doc- 
 trine. The decision in Mitchell V. 
 Gregory, 94 Ind. 36^ was not directed 
 to the question of the right to appeal in 
 term without giving bond, but to the 
 effect of an appeal where there was 
 a failure to give bond, and it was held 
 that the appeal did not preclude the 
 plaintiff from taking out an execution. 
 June V. Payne. 107 Ind. 307.
 
 MODES OF APPEAL IN CIVIL ACTIONS. 213 
 
 which he would occupy if he had entirely disregarded the 
 statutory provision requiring a bond! 1 
 
 § 250. Appeals after Term — The second class of appeals from 
 final judgments in civil actions may be designated as "Appeals 
 after Term." As is evident from what we have already said, 
 the essential difference detween an "Appeal in Term " and an 
 "Appeal after Term " is that in the one there must be a bond 
 but there need not be notice, while in the other there must be 
 notice 2 but there need not be a bond. 3 It may be safely said 
 that notice is indispensable to the effectiveness of an appeal 
 after term. This statement is not contravened by the familiar 
 rule that notice may be waived inasmuch as that rule concedes 
 the necessity for notice, but treats the waiver as its equivalent. 
 Where there is no effective appeal in term there must always 
 be notice, or that which is equivalent to notice. 4 There is a 
 difference between cases where an appeal is prosecuted for the 
 purpose only of reviewing the decisions of the trial court, and 
 cases where both a review of such decisions and a stay of pro- 
 ceedings on the judgment are sought. The difference is an 
 important one, inasmuch as a bond is essential to secure a stay 
 of proceedings, but is not essential to an appeal taken upon 
 notice where no stay is asked or desired. 
 
 § 251. Classes of Appeals after Term — Appeals alter term are 
 subdivided into two classes: i. Appeals upon notice issued 
 and served below. 2. Appeals upon notice issued and served 
 above. 5 In the first class, notice must be issued and served 
 upon the adverse party and also upon the clerk. In the second 
 
 1 We have discussed elsewhere mat- v. The Midland R'y Co., 28 N. E. 
 ters connected with the execution of ap- Rep. 549. 
 
 peal bonds, and our immediate purpose 4 The decisions in West v. Cavins, 74 
 
 is to show what acts must be done in Ind. 265; Gilbert r.Welsch, 75 Ind. 557, 
 
 order to perfect a term-time appeal, and Pedrick v. Post, 85 Ind. 255, recog- 
 
 See R. S., § 657. nize the doctrine of waiver, but they do 
 
 2 R. S., § 640. not hold that there may be an appeal 
 
 3 Ruschaupt v. Carpenter, 63 Ind. in term without a bond. 
 
 359: Burt v. Hoettinger, 2S Ind. 214; 5 Opp v. Teneyck, 99 Ind. 345: 
 Sturgis v. Rogers, 26 Ind. 1; Holloran Hays v. Wilstach, 101 Ind. 100; R. S., 
 
 § r '4°-
 
 •_•; t APPELL \ TE PR< (CEDURE. 
 
 class, the appealing party must procure a transcript of the rec- 
 ord, file it in the office of the clerk of the Supreme Court, and 
 cause notice to be issued. It is essential that the appeal be 
 perfected within the time prescribed by the statute. It is not 
 enough to take part of the steps required, as, for instance, to 
 give notice of the appeal. Upon the general principle (dis- 
 cussed in a former chapter) that appeals must be taken within 
 the time limited, it is necessary to do all that the law requires to 
 be done within the time designated. 1 An appeal, to repeat 
 what has elsewhere been full}- stated and amplified, must be 
 completed within the time allowed or it will not be effective. 
 While it is true that an appeal is not perfected until all the ma- 
 terial acts required by law are done as the law prescribes, it is 
 true, nevertheless, that an ineffectual effort to appeal in one 
 mode does not necessarily preclude an appeal in another mode, 
 provided, of course, the time for all modes of appeals has not 
 expired. The provisions of the statute, the rules of court, and 
 the general principles of law heretofore considered, save the 
 rights of aggrieved parties in cases where there is a dismissal of 
 an appeal for irregularities or informalities in taking it. 2 A 
 mere informality or irregularity may, indeed, often be corrected 
 and the particular appeal saved. 3 
 
 § 252. Civil Action — Definition — In matters connected with 
 
 1 For a discussion of the subject of 126, that an appeal is perfected when 
 
 notice to parties, see " Time within the transcript is filed can not be recon- 
 
 which an appeal must be taken," " Pro- ciled with the earlier or later authori- 
 
 Chapters VI, VIII. Johnson v. ties, nor with principle, bul it is true 
 
 Stephenson, 104 Ind.36S, 4N. E. Rep. 46. that until the transcript is filed there is 
 
 In Lange v. I hummer, 1 [9 Ind. 567, 1 1 N. no appeal. 
 
 I Rep. 33, it was said: " This court can 2 R. S., §§ 639, 657; Rules I and II. 
 m.t acquire jurisdiction of any appeal 3 R. S., § 657. But the fight to amend 
 unless the same be taken and perfected or correct mere irregularities does not 
 within the time and in the manner pre- depend solely upon statutory provisions 
 scribed bylaw." We quote from this or rules of court, for it is always within 
 case, although, because of an error in the the power of an appellate tribunal to 
 record, tlie opinion was subsequently prevent the failure of justice by permit- 
 withdrawn, for the reason that it states ting corrections or amendments, al- 
 the rule clearly and correctly. I lender- though it can not heal errors that go to 
 son v. Halliday, 10 Ind. J4; Bacon v. the jurisdiction of the subject. A party 
 Witherow, no Ind. 94. The statement who asks a correction must, however, 
 in Harshman t. Armstrong, 43 Ind. be diligent and prompt.
 
 MODES OF APPEAL IN CIVIL ACTIONS. 
 
 215 
 
 procedure the term "civil action" has a very wide and com- 
 prehensive signification. The code declares that there shall 
 be but one form of action and that it shall be denominated " a 
 civil action." ' It is declared that the distinction between ac- 
 tions at law and suits in equity is abolished, but this declaration 
 does not change the substantive rights, 2 for there are still equi- 
 table and legal rights and equitable and legal titles. 3 Rights 
 are beyond legislative reach except by a complete and rigid 
 reduction of all principles to statutory provisions. Nor do the 
 provisions of the code fully sweep away the distinction between 
 law and equity in matters of procedure, for it has been again 
 and again decided that where a party has an adequate legal 
 remedy he can not invoke an equitable one. 4 So, too, modes 
 of trial are different ; purely equitable suits are triable bv the 
 court while actions at law are triable by a jury. 5 Where the 
 facts fully appear and are such as to entitle the plaintiff to re- 
 lief upon the theory assumed relief may be awarded, 6 but a 
 
 1 R. S., § 249; Bixel v. Bixel, 107 S3 Ind. 48. See McWhorter v. Helt- 
 Ind. 534; Hart v. Barnes, 24 Neb. 7S2, zell. 124 Ind. 129. 
 
 40 N. W. Rep. 322; Omaha, etc., Co. * Shoemaker v. Axtell, 78 Ind. 561; 
 
 v. Tabor, 13 Col. 41, 21 Pac. Rep. 925. Sims v. City of Frankfort, 79 Ind. 446; 
 
 2 Scott v. Crawford, 12 Ind. 410; Marshall v. Gill. 77 Ind. 402; Kvle v. 
 Woodward v. Leavenworth, 14 Ind. Frost, 29 Ind. 3S2; Miller v. City of 
 311; Matlock v. Todd, 25 Ind. 12S; Indianapolis, 123 Ind. 196; Bas- - 
 Dixon v. Caldwell, 15 Ohio St. 412, 415. City of Fort Wayne, 121 Ind. 3S9; 
 In the case last cited it was said, "The Smith v. Goodknight, 121 Ind. 312. 
 distinction between legal and equitable 5 Kitts v . Willson, 106 Ind. 147; Deig 
 rights exists in the subject to which v. Moorhead, no Ind. 451; Lake Erie. 
 they relate, and is not affected by the etc., Co. v. Griffin, 92 Ind. 4S7; Platter 
 form or mode of procedure that may be v. Board of Commissioners, 103 Ind. 
 prescribed for their enforcement. The 360; Lane v. Schlemmer. 114 Ind. 296; 
 code abolished the distinction between Rogers v. Union Central Life Ins. Co., 
 actions at law and suits in equity, and 1 11 Ind. 343; Stix v. Sadler, 109 Ind. 2 54. 
 substituted in their place one form of Where parties act upon the theory 
 action; yet the rights and liabilities of that the case is triable bv a jury, no 
 the parties, legal and equitable, as dis- question can be made on appeal as to 
 tinguished from the mode of procedure mode of trial. Summers v. Greathouse, 
 remain the same since, as before, the S7 Ind. 205; Sprague v. Pritchard. 10S 
 adoption of the code." See Emmons v. Ind. 491; Jarboe v. Severin, 112 Ind. 572. 
 Kiger, 23 Ind. 4S3; Ricketts v. Dorrell, 6 Grissom v. Moore. 106 Ind. 296; 
 55 Ind. 470. Blair t. Smith. 114 Ind. 114; Bonnell 
 
 3 Stout v. McPheeters, 84 Ind. 585; v. Allen, 53 Ind. 130: Troost v. Davis, 
 Stehman v. Crull, 26 Ind. 436; Rowe 31 Ind. 34. See East v. Peden. 10S 
 v. Beckett, 30 Ind. 154; Groves v. Ind. 92. 
 
 "larks, 32 Ind 319; Hunt v. Campbell,
 
 216 APPELLATE PR( >CEDURE. 
 
 definite theory must be adopted and the pleading must be good 
 upon that theory. 1 In the cases decided in the early years of 
 the code system there is apparent a purpose to make classes of 
 what the court called special proceedings and thus keep up, in 
 some measure, the distinction between statutory actions and 
 ordinary actions or suits. There was very little strength in the 
 reasoning of any of these cases and the doctrine they asserted 
 is exploded by the later decisions. 2 The tendency of the later 
 cases is to unify all proceedings and give the code the effect it 
 was intended to have, for it is evident that the intention was 
 not to multiply classes of action nor to recognize old forms, but 
 to provide for one action and a uniform system of procedure. 3 
 While the subject we have been considering is more directly 
 connected with trial court practice than with appellate proced- 
 ure, yet it is so connected with the preparation for appeal and 
 with the practice on appeal, that it is almost impossible to con- 
 sider appellate procedure without some discussion of the sub- 
 ject. 
 
 § 253. What cases are Appealable as Civil Actions — There is, in 
 this State, only one remedy, as elsewhere said, for the review 
 of a judgment by the appellate tribunals, and that is by appeal, 
 so that where there is a right to such a review there can be no 
 doubt as to the remedy, but the modes of procedure are differ- 
 
 1 May v. Reed, 1 2 q Ind. 199; Pearson and that all such actions as were not 
 v. Pearson, 12^ Ind. 341; Trentman v. criminal must necessarily fall under 
 Neil', [24 lnil. 503; Bingham v. Stage, the denomination civil .action, hut the 
 1 23 hid. 281, and cases cited p. 2S5; Supreme Court has held otherwise." 
 Wagner v. Winter, 12: Ind. 57; Rahm 1 Works' Ind. Practice. 122. As will 
 : . 1 >eig, 1 2 1 Ind. 2S3; Brown v. Nichols, be shown elsewhere the later cases fully 
 
 Co., 123 Ind. 492, 24 N. E. Rep. 339; sustain the views expressed by Judge 
 Camp v. Smith, 117 N. Y. 354, 22 N. E. Works. 
 Ri p. [ 044; Coffin V.ArgO, 134111.276,24 3 It by no means follows that because 
 
 \ E. Rep. to68; Spies v. Chicago, etc., a right is created by a statute that there 
 
 Co., |0 Fed. Rep. 34; Olmstead v. Ah- is also created a special proceeding. If 
 
 bott, 61 Vt. 2Si,iS Atl.Rep.315; Indi- it were true that the creation of a stat- 
 
 ana, etc.. Co. v. Quick, 109 Ind. 295. utory right made a special proceeding 
 
 2 Judge Works in his very able book then we should have many civil actions 
 says, "It would seem clear from the and many and diverse criminal prose- 
 language used that there could be but cutions. 
 
 two forms of action, civil and criminal,
 
 MODES OF APPEAL IN CIVIL ACTIONS. 
 
 217 
 
 ent. The great majority of cases are appealable as civil ac- 
 tions and the cases not so appealable are exceptions to the 
 general rule. It is safe to say that all controversies respect- 
 ing civil rights and liabilities are appealable as civil actions, 1 
 whether they arise under special statutes or not, except where 
 some provision respecting the appeal is made by the statute for 
 such special cases. 2 The limitation placed upon the meaning 
 
 1 There must be a contest concerning 
 civil rights, and, as a general rule, there 
 must be adversary parties. Johnson v. 
 Malloy,7-|.Cal. 430; Thomas v. Musical, 
 etc., LTnion, 121 N. Y. 45, S Lawyers' 
 Rep. Anno. 175; Gilmore v. Board, 35 
 Ind. 344; Brown v. Grove, n6Ind.S4; 
 Pressley v. Harrison, 102 Ind. 14; Kun- 
 dolf v. Thalheimer, 12 N. Y. 591, 596; 
 Deer Lodge v. Kohrs, 2 Mont. 66, 70; 
 Ableman v. Booth, 11 Wis. 499, 516; 
 Ex parte Towles, 4S Texas, 413, 433; 
 State v. One Bottle of Brandy, 43 
 Vt. 297; Martin v. Hunter's Lessee, 
 1 Wheat. 35; Osborn v. United States 
 Bank, 9 Wheat. 73S, S19; Wayman 
 v. Southard, 10 Wheat. 1, 30. It is 
 upon the general principle that there 
 must be adverse parties, that it is held 
 that where a defendant actually begins 
 and controls the case no valid judg- 
 ment can be rendered. Brown v. Grove, 
 116 Ind. S4; Gresley v. State, 123 Ind. 
 72. See State v. Green, 16 Iowa, 239; 
 Watkins v. State, 6S Ind. 427; Halloran 
 r. State, So Ind. 5S6; State Bank v. Ab- 
 bott, 20 Wis. 599; Strang v. Beach. 11 
 Ohio St. 2S3. Real parties are essen- 
 tial. Nicholson v. Stephens, 47 Ind. 
 1S5; Brewington v. Lowe, 1 Ind. 21. 
 
 2 A reference to some of the cases de- 
 claring what shall be considered civil 
 actions may serve to illustrate and en- 
 force the statements of the text. A 
 prosecution under the statute regulat- 
 ing proceedings in bastardy cases is a 
 civil action, although a peculiar one. 
 State v. Brown. 44 Ind. 329; Abshire v. 
 State, 52 Ind. 99. Actions to recover 
 
 statutory penalties are civil actions 
 within the meaning of the code. City 
 of Hammond v. New York, etc., Co., 
 126 Ind. 597; City of Greely v. Han- 
 man, 12 Col. 94, 20 Pac. Rep. 1: 
 Durham v. State, 117 Ind. 477; West- 
 ern Union Tel. Co. v. Scircle, 103 
 Ind. 227; United States v. Hoskins, 
 5 Mackey, 47S. So are proceedings 
 in highway cases. Schmied v. Keeney, 
 72 Ind. 309. Claims against dece- 
 dents' estates were held to be, in some 
 respects, civil actions. Lester v. Les- 
 ter, 70 Ind. 201. Informations in the 
 nature of quo -warranto are civil actions 
 under our decisions. Reynolds V. State, 
 61 Ind. 392; Bank of Vincennes v. State, 
 1 Blackf. 267. So are proceedings sup- 
 plementary to execution. Burkett v. 
 Holman, 104 Ind. 6; Burkett v. Bowen, 
 
 104 Ind. 1S4, and cases cited. Baker v. 
 State, 109 Ind. 47; Bostwick v. Bryant, 
 113 Ind. 448; American White Bronze 
 Co. v. Clark, 123 Ind. 230; McMahan 
 v. Works, 72 Ind. 19. So is a motion for 
 leave to issue execution. Jaseph v. 
 Schepper, 1 Ind. A pp. 154, 27N.E Rep. 
 30 v Suits for divorce are essentially, 
 but not entirely, civil actions. Simons 
 t\ Simons, 107 Ind. 197; Evans V. Evans, 
 
 105 Ind. 204; Powell v. Powell, 104 Ind. 
 iS. Drainage proceedings are civil ac- 
 tions so far as questions of procedure are 
 concerned. Bass v. Elliott, 105 Ind. 517, 
 Neff v. Reed, 9S Ind. 341; Crume v. 
 Wilson, 104 Ind. 5S3. These cases go 
 very far towards vindicating if, indeed, 
 they do not fully vindicate, the state- 
 ment of Judge Works, that. " No such
 
 218 APPELLATE PROCEDURE. 
 
 of the term "civil actions" excludes all criminal cases, and 
 the provisions made for appeals in probate matters exclude all 
 cases within the scope of that statute. As the statute makes 
 express and special provisions for appeals from interlocutory 
 orders such orders are not within the general rule stated in the 
 present chapter. It is implied in what has already been said 
 that where express provisions are made for the appeal of spe- 
 cial cases, such cases are taken out of the general rules which 
 govern appeals in civil actions in so far as concerns the mode 
 of taking and perfecting the appeal, and it follows, as of course, 
 that appeals in such cases must be taken and prosecuted under 
 the special statutory provisions. It may, however, be said, for 
 the sake of clearness, although at the expense of something 
 like repetition, that ordinarily a case arising under a special 
 statute is for the purpose of appeal, as, indeed, generally for 
 all matters of procedure, a civil action, 1 but this rule does not 
 apply where a special mode of taking an appeal is prescribed. 
 
 thing is known to the code as a special ceedings whether under special statutes 
 proceeding. It' what might have been or not. unless excluded by the provis- 
 called special proceedings before the ions of the act." Et was also said : ''Stat- 
 ion of the code are not included utes are to beregarded as forming parts 
 in the statutory definition of a civil ac- of one great and uniform body of Law, 
 tion there is no rule of pleading or prac- and are not to be deemed isolated and 
 tice that can be applied to them. Our detached systems complete in them- 
 pleading and our practice are governed selves. Humphries :•. Davis, too [nd. 
 exclusively by the code, and the statute 274. 50 Am. Rep. 78S; Lutz :•. City of 
 affords no rules of practice or pleadings Crawfordsville, 109 [nd. 400." It is 
 in special proceeding." 1 Works Ind. certainly true thai so far as concerns 
 Prac 120. The statements of the learned the right of appeal case- are regarded 
 author while in the main correct need as civil action- and are appealable as 
 limitation, or rather qualification, such unless some provision is made b\ 
 for common law rules are often called statute to the contrary. The unbroken 
 to the aid of the code and are often en- practice proves this to be true. And, 
 forced. Shaw v. Merchants National it may be added, any other rule would 
 Bank, 60 Ind. 83; Board v. Spitler, 13 involve the manifest absurdity of hold - 
 Ind. 235; Daws, ,n v. Coflfman, 28 Ind. ing that each and every proceeding has 
 220. annexed to it a peculiar mode of appeal. 
 1 In Robertson v. Smith. 109 Ind. ~<). It is not to be expected that specific 
 07, it was said: "If. however, it were laws shall be enacted foreach case; on 
 conceded that the position of the appel- the contrary laws lay down general 
 lee is tenable, still, it would by no means rules, and they prevail unless some dif- 
 result that section 312 does not apply, ferent rule applicable to the particular 
 for i' is now well settled that the pro- class of cases i- shown to exist 
 visions of the code do apply to all pro-
 
 CHAPTER XIV. 
 
 APPEALS IN MATTERS CONNECTED WITH DECEDENTS' 
 
 ESTATES. 
 
 § 254. Thfe special statute does not cre- 
 ate an entirely independent 
 
 system. 
 
 255. What cases are governed by the 
 
 statute respecting decedents' 
 estates. 
 
 256. Cases held not to be within the 
 
 special statute. 
 
 257. Cases within the statute. 
 
 258. The conflict in the decisions. 
 
 259. Construction of the statute. 
 
 260. Effect of the construction sug- 
 
 gested. 
 
 261. Time for appealing. 
 
 262. What the appellant must do to 
 
 perfect the appeal. 
 
 263. Extension of time. 
 
 264. Steps essential to secure an ex- 
 
 tension of time. 
 
 265. Notice of the application for an 
 
 extension of time. 
 
 266. Briefs on the application. 
 
 267. Bond must be filed within the 
 
 time limited. 
 26S. Intermediate decisions and in- 
 terlocutory orders. 
 
 § 254. The Special Statute does not create an entirely independ- 
 ent system — The statute provides a mode of procedure for ap- 
 pealing in cases "growing out of any matter connected with a de- 
 cedent's estate," 1 but the system provided is not, in the strict 
 sense, an entirely independent one. The provisions of the code 
 respecting the mode of taking appeals in civil actions do not in 
 all respects apply to appeals in matters connected with dece- 
 dents' estates, but the appeal from decisions in such matters must 
 be taken under the special statutory provisions. 2 While it is 
 true that the appeal must be taken in accordance with the pro- 
 visions of the special statute, it is also true that the procedure 
 is to a very great extent governed by the general rules which 
 
 ^ 1 R. S., §§ 2454, 2455, 2456. 2457; El- 
 liott's Sup., § 417. 
 
 2 State v. Hughes, 15 Ind. 104; Thie- 
 baud v. Dufour, 57 Ind. 59S; Seward v. 
 Clark, 67 Ind. 289; Bell v. Mousset, 71 
 Ind. 347; Rinehart w.Vail, 103 Ind. 159; 
 Taylor v. Burk, 91 Ind. 252; Bartlett's 
 Appeal, 82 Me. 210, 19 Atl. Rep. 170; 
 
 (219) 
 
 Bake v. Smiley, 84 Ind. 212; Weil v. 
 Cavins, 74 Ind. 265; McCurdy r. Love, 
 97 Ind. 62; Browning v. McCracken, 
 97 Ind. 279; Bennett v. Bennett, 102 
 Ind. S6; Walker v. Steele, 121 Ind. 436. 
 The doctrine of Hamlvn v. Nesbit, 37 
 Ind. 2S4, is overruled by the later cases.
 
 220 APPELLATE PROCEDURE. 
 
 obtain in civi! actions. The special statute can not be deemed 
 to create an entirely independent system, although itdoes make 
 peculiar provisions respecting the mode of taking an appeal, 1 
 for, as to the assignment of errors and matters of a similiar 
 nature, appeals under the special statute are governed by the 
 general rules of procedure. - 
 
 : 255. What Cases are governed by the Statute respecting Dece- 
 dents' Estates — The question as to what cases fall within the stat- 
 utory provisions referred to in the preceding paragraph has 
 evoked much discussion, and it is not easy to lay down a gen- 
 eral rule with certainty or precision. There can, of course, 
 be no difficulty in determining the question where the contro- 
 versy directly involves the rights of the administrator or exec- 
 utor as such irrespective of collateral or appendant interests, 
 and where it can not be adjudicated without directly passing 
 upon such rights ; but, while this is true, it is also true that it is 
 by no means every case that falls within what is sometimes 
 called probate jurisdiction, that can be appealed under the 
 special statute. 3 It is safe to say that one who acts upon the 
 assumption that all cases connected with matters within the 
 jurisdiction of probate courts are within the special statute will 
 be led into error. To say, as is sometimes done, that all 
 probate cases are appealable under the special statute is to state 
 the rule entirely too broadly. 4 General statements can not con- 
 vey an accurate or adequate conception of the law upon the sub- 
 ject of appeals under the statute as declared by our decisions, 
 It is, indeed, not possible to secure a clear and full view of the 
 scope and effect that has been assigned to the statute without 
 considering the decided cases somewhat in detail. 
 
 § 256. Cases held not to be within the Special Statute — It will 
 best serve to show the scope and effect of the statute by first 
 considering the cases which have been held not to fall within 
 
 1 Scherer i>. Ingerman, no Ind.-pS. 3 Rush v. Gray, 74 Ind. 231; Willson 
 
 2 The special statute applies to the v. Binford, 74 End. 424. 
 
 time and mode of taking the appeal * Jurisdiction of Probate Courts, 3 So. 
 rather than to the procedure after the Law Rev. (N. S.) 254-267. 
 appeal is perfected.
 
 DECEDENTS' ESTATES. 221 
 
 it, and then considering those which have been held to be 
 embraced within its provisions. A suit by an executor to ob- 
 tain the construction of a will has been held not to be within 
 the statute. 1 Actions by an administrator to recover money on 
 a contract have been held not to be appealable under the special 
 statutory provisions. 2 A proceeding prosecuted by the creditor 
 of a legatee for the purpose of reaching money in the hands of 
 an administrator due the legatee is appealable as a civil action. 3 
 Another case holds that a proceeding by an administrator to 
 recover as assets a note and mortgage assigned by the decedent 
 is not appealable under the special statute. 4 Where the action 
 is begun before the death of the intestate an appeal must be 
 prosecuted under the statute governing appeals in civil actions. 5 
 An action by an administrator to enforce a contract is held not 
 to be within the statute respecting decedents' estates. 6 One who 
 is made a party to an action against an administrator founded 
 upon a contract in which he is not jointly bound may appeal 
 under the provisions of the code regulating appeal in civil ac- 
 tions. 7 An appeal is to be prosecuted under those provisions 
 in a case where an administrator is made a party in proceed- 
 ings supplementary to execution to answer as to money in his 
 hands belonging to the debtor. 8 A case can not be brought un- 
 der the special statute relating to decedents' estates by joining 
 an administrator as a party. 9 An action commenced during 
 the life of the decedent and prosecuted by the administrator 
 after the intestate's death must be prosecuted under the statute 
 governing appeals in civil actions. 10 
 
 § 257. Cases within the Special Statute — In considering the 
 cases which affirm that appeals must be taken under the special 
 
 1 Simmons v. Beazel. 125 Ind. 362. 6 Hillenberg v. Bennett, 8S Ind. 540; 
 
 2 Heller v. Clark, 103 Ind. 591; Dill- Willson v. Binford, 74 Ind. 424; Rush 
 man v. Dillman, 90 Ind. 585; Yearlev v. v. Gray, 74 Ind. 231. But is this not a 
 Sharp, 96 Ind. 469. matter connected with the settlement 
 
 3 Koons v. Mellett, 121 Ind. 585. of a decedent's estate? 
 
 4 Walker v. Steele, 121 Ind. 436. T Claypool v. Gish, 10S Ind. 424; 
 This case and that first referred to in Wright v. Manns, m Ind. 422. 
 
 this paragraph of the text carry the 8 Dillman v. Dillman. 90 Ind. 585. 
 
 doctrine very far, and their soundness 9 Claypool v. Gish, 10S Ind. 4:4 
 
 may well be doubted. 10 Heller v. Clark, 103 Ind. 591. 
 
 5 Heller v. Clark, 103 Ind. 591.
 
 APPELLATE PROCEDURE. 
 
 statute, we shall particularly notice only those which possess 
 peculiar features. A case extending the provisions of the 
 statute very far may appropriately be first considered. The 
 to which we refer was a proceeding by mandamus to com- 
 pel the sale of real estate. The surviving partner resisted the 
 application and it was held that the case was not appealable as 
 a civil action but must be appealed under the special statute. 1 
 A proceeding based upon a petition to set aside the final report 
 of an administrator must be appealed under the special statute, 
 and can not be appealed as an ordinary civil action.- A like 
 rule applies to a proceeding founded on a petition for the sale 
 of real estate of which the decedent died the owner. 3 A similar 
 rule applies to cases where a widow petitions for her allowance 
 out of her deceased husband's estate. 1 An ordinary claim filed 
 against an administrator or executor by a creditor of the de- 
 cedent must be appealed from as the special statute provides. 5 
 
 § 258. The Conflict in the Decisions — It is evident that there is 
 not only confusion among the decided cases, but that there is 
 conflict. There must be a reformation of some of the doctrines 
 and a straightening of the lines, or else the confusion will 
 deepen as the decisions multiply. Some general principle must 
 be sought and found before the conflict can be removed and 
 the confusion cleared away. We venture to suggest that the 
 principle which will lead to a just result is to be found in some 
 such statement as this : Where the controversy is connected 
 with a decedent's estate, and an adjustment of the controversy 
 is essential to a final settlement of the estate, the appeal must 
 be taken under the special statute ; otherwise, under the general 
 
 1 Bennett v. Bennett, [02 End. 86. ' Webb v. Simpson, 105 Ind. 327; 
 
 The decision in the ( ase cited can not Taylor v. Burk, 91 Ind. 252; West V. 
 
 he harmonized with the decisions in Cavins, 74 Ind. 265. 
 
 some of the other cases, but we think it 8 Rinehart v. Vail, 103 Intl. 159; 
 
 sound. The error, as it seems to us, is Hunter v. French, S6 Ind. 320. 
 
 in the decisions which unduly limit the 4 Bender*. Wampler, 84 Ind. 172. 
 
 of the special statute, and not in 5 Miller :■. Carmichael, 98 Ind. 236; 
 
 those which give it a construction that Jones v. Jones, 91 Ind. 378. See Taylor 
 
 it so operate as to secure prompt V. Burk, 91 Ind. 252. 
 appeals in matters affecting the settle- 
 ment of decedents' estates.
 
 DECEDENTS' ESTATES. 223 
 
 statute regulating appeals in civil actions. The object of the 
 statute is to require parties to appeal promptly, and thus prevent 
 delay in the settlement of estates. 1 This is plainly so, for if 
 this was not the object of the legislature then there was no 
 necessity for such a statute, inasmuch as the general statute is 
 sufficient for all other purposes. It is not to be assumed that 
 the legislature had no definite object in view in enacting the 
 statute, since that would be to declare that the law makers did 
 a vain and idle thing, and this declaration can not be made 
 without a violation of rudimental principles. 
 
 § 259. Construction of the Statute — The language of the orig- 
 inal act is comprehensive, for it is this: "Any person consid- 
 ering himself aggrieved by the decision of any circuit court or 
 judge thereof in vacation, growing out of any matter connected 
 with a decedent's estate may prosecute an appeal," 2 and there 
 is no valid reason for restricting this language so as to thwart 
 the salutary policy of the law that decedents' estates shall be 
 promptly settled. The amendatory act of 1885 evinces a plain 
 intention to secure prompt appeals, for it declares that the tran- 
 script shall be filed in the office of the clerk of the Supreme 
 Court within thirty days after filing the bond and provides that 
 the bond shall be filed within ten days. 3 It seems to us that 
 instead of limiting the scope of the statute the courts should 
 extend it so as to give just effect to the manifest purpose of the 
 law to secure the prompt settlement of the estates of decedents. 
 There certainly is no right to limit the statute so as to obstruct 
 the operation of the salutary rule of which we have spoken, for 
 
 1 In Sewara v. Clark, Adm., 67 Ind. spirit, as well as the words of the decis- 
 2S9. it was justly said: " It is very clear, ions, very clearly prove that the object 
 we think, that the legislature never in- of the law is to secure a speedy settle- 
 tended that the settlement of decedents' ment of estates and the distribution of 
 estates might be delayed and embar- the assets to creditors, legatees and 
 rassed by appeals to this court." So, heirs. The decisions which oppose this 
 in Miller v. Carmichael, 9S Ind. 236, it settled doctrine can not be sound. The 
 was said: "The object of the statute doctrine is affirmed in other cases. 
 Was to cut off delays in litigating mat- Miller v. Carmichael, 9S Ind. 236, and 
 ters affecting decedents' estates, and cases cited, 
 expedite final settlement of estates." 2 R. S., § 2534. 
 The provisions of the statute, and the 3 Elliott's Supp., § 417.
 
 224 APPELLATE PROCEDURE. 
 
 the authorities strongly assert that appeals in matters connected 
 with the settlement of decedents' estates must be taken strictly 
 within the time and in the mode prescribed by law. 1 
 
 § 260. Effect of the Construction suggested — The application 
 of the general principle we have ventured to suggest can work 
 no hardship and yet will secure prompt appeals and a proper 
 obedience to the commands of the law, for parties will know 
 their rights and certainty will prevail. The principle stated 
 requires that controversies which keep open an estate shall be 
 appealed under the special statute, but it affects no others. Thus, 
 if the construction of a will is essential to the proper discharge 
 of the duties of an executor in order to enable him to settle the 
 estate, then the appeal should be prosecuted under the statute, 2 
 but if he can pay the money into court and secure a final order 
 settling the estate leaving the devisees, legatees or heirs to 
 litigate their respective claims to the money paid into court, the 
 case is not within that statute because the controversy ceases to 
 be connected with the settlement of a decedent's estate. It 
 does not, at all events, delay settlement, and hence is not 
 within the evil sought to be prevented. If, to adduce another 
 illustration, it is necessary to collect a note as part of the assets 
 of the estate, the case is within the statute for the reason that 
 the assets must be collected before the estate can be closed. 
 But, without multiplying illustrations, we think it safe to affirm, 
 in view of the provisions of the statute and the fundamental 
 principles of law, that wherever the case is one in which a de- 
 cision is essential to the prompt settlement of a decedent's es- 
 tate it must be appealed under the provisions of the statute 
 regulating appeals from decisions "growing out of matters 
 connected with a decedent's estate," and not under the general 
 
 1 Dennison v. Talmage, 29 Ohio St. 640; Merrills v. Adams, Kirby, 249; 
 
 433, 435 ; Morrow v.Walker,io Ark. 569; Arterburn v. Young, 14 Bush (Ky.), 
 
 Briggs v. Barker, [45 Mass. 2S7; Peral- 509; Holtzclaw v. Ware, 31 Ala. 307. 
 tat;. Castro, 15 Cal. 511; Estate ofCal- 2 We know that some of the decisions 
 
 lahan, on Cal. 232; Estate of Moore, 6S indicate a different doctrine, hut we are 
 
 Cal. 304: Meyer v. Steuart,48 Md.423, here simply suggesting what it seems to 
 
 ;::: Mount V. Slack. 39 N.J. Eq. 230; us should he the rule. 
 /;/ re Fisher, 75 Cal. $25, 17 Pac. Rep.
 
 DECEDENTS' ESTATES. 225 
 
 statute governing appeals in ordinary civil actions. 1 In an or- 
 dinary civil action no estate is kept open by the appeal, but in 
 matters affecting the settlement of decedents' estates an estate 
 is kept open and costs and expenses are augmented. 
 
 .§ 261. Time for Appealing — The general rule that appeals 
 must be taken within the time and in the mode prescribed by 
 law is strictly applied to cases where appeals are taken from 
 decisions in probate matters connected with the estates of de- 
 cedents. The decisions declare that the statutory requirement 
 can not be dispensed with by order of the court. 2 But the 
 statement just made expresses a rule subject to exceptions, for 
 the statute provides for an extension of time upon cause shown 
 and leave duly prayed. 3 If the appealing party is himself 
 without fault and he is prevented from appealing within the 
 time and in the mode prescribed by statute by the fraud of the 
 adverse party, or by the fault or wrong of the court or of some 
 officer, then under the inherent power resident in all superior 
 appellate tribunals, of which we have spoken, he may be re- 
 lieved and leave may be granted him to perfect an appeal. 4 
 
 § 262. What appellant must do to perfect the Appeal — The acts 
 which the appellant must perform, or cause to be performed, 
 
 1 The majority of our own cases sup- Van Slyke v. Schmeck, io Paige, 301; 
 
 port this conclusion. Yearley v. Sharp, Lambert v. Merrill, 56 Vt. 464; Mount 
 
 96 Ind. 469; McCurdy v. Love, 97 Ind. v. Slack, 39 N. J. Eq. 230; Ahearn v. 
 
 62, 63; Miller v. Carmichael, 98 Ind. Mann, 63 N. H. 330; In re Mars- 
 
 236; Webb v. Simpson, 105 Ind. 327; ton, 79 Me. 25; Brewster v. Shelton, 
 
 Rinehart v. Vail, 103 Ind. 159; Brown- 24 Conn. 140. In Miller v. Carmichael, 
 
 ing v. McCracken, 97 Ind. 279; Ben- 98 Ind. 236, the question is treated as 
 
 nett v. Bennett. 102 Ind. 86: Hunter :■. jurisdictional, the court saving, " Want 
 
 Trench, S6 Ind. 320; Bender v. Wamp- of jurisdiction works a dismissal of the 
 
 ler, S4 Ind. 172; Jones v. Jones, 91 Ind. case at any stage of the proceedings." 
 
 37S; Taylor v. BurK, 91 Ind. 252. The See, also, authorities cited in Chapter 
 
 view we have taken is strongly support- XIII; " Modes of Appeal in Civil Ac- 
 
 ed by the reasoning of Judge Works. 2 tions." 
 
 Works' Ind. Prac, § 1096. 3 Elliott's Supp., § 417. 
 
 * Rinehart v. Vail, 103 Ind. 159. See * Mount v. Van Ness, 34 N. J. Eq. 
 
 "Time within which Appeals maybe 523; Biddison v. Moseley, 57 Md. 89, 
 
 Taken." Heckert's Appeal. 13 Sergt. & 92; Bensley v. Haeberle, 20 Mo. App. 
 
 R.4S; Claypoolr;. Norcross, 36N.J. Eq. 64S. See, ante, §§ 113, 114, 115, 116. 
 524; Morrow v. Walker, 10 Ark. 569; 
 
 15
 
 226 
 
 APPELLATE PROCEDURE. 
 
 in order to perfect an appeal in cases affecting the estate of a 
 decedent, are these: i. A bond must be tiled within ten days 
 after the decision is made. 2. The transcript must be filed 
 in the office of the clerk of the Supreme Court within thirty 
 days after the bond is filed.' The statement we have made 
 expresses the general rule but to this general rule there are 
 marked exceptions. One exception is that where the adminis- 
 trator or executor appeals no bond is necessary,- but he must 
 file the transcript within the time limited in the office of the 
 clerk of the Supreme Court. 3 Another exception is that, for 
 cause shown, the time for perfecting the appeal may be ex- 
 tended for a period not exceeding one year. 
 
 § 2(33. Extension of Time — It is not to be assumed that the time 
 for perfecting the appeal will be extended as of course ; on the 
 contrary, the statute allows an extension only for cause shown, 
 and the rule that the settlement of decedents' estates shall not 
 be delayed or embarrassed by appeals, as well as the general 
 rule that time is of the essence, would be violated by extending 
 the time for taking an appeal unless a clear and strong case is 
 
 1 There has been some confusion in 
 the decided cases as to the time within 
 which the transcript is to be filed, but 
 the statute plainly requires that it shall 
 be filed within thirty days after the 
 bond is filed, thus allowing forty days 
 in which to perfect the appeal. Elliott's 
 Supp., § 417; Webb v. Simpson, 105 
 Ind. 327; Rinehart v. Vail, 103 Ind. 
 159; Miller v. Carmichael, 9S Ind. 236; 
 Browning v. McCracken, 97 Ind. 279; 
 Yearley v. Sharpe, 96 Ind. 469. 
 
 2 It is the duty of an administrator to 
 appeal if there is reasonable ground to 
 believe that the trial court erred to the 
 prejudice of the estate. Ruch v. Biery, 
 no Ind. 444. 
 
 3 The decision in Simons v. Simons 
 (Ind.), 2S N.E. Rc]>. 702. fully sustains 
 the statement of the text that thirty days 
 
 tiling the bond is allowed for per- 
 fecting the appeal, and that decision also 
 
 asserts that an administrator who ap- 
 peals without filing a bond has the same 
 length of time — namely, forty days — 
 in which to perfect an appeal that is 
 allowed a party who is required to give 
 bond. In the case referred to it was 
 said : " The law gives the same time to 
 both parties to appeal. An executor 
 or administrator is not required to file 
 a bond, yet he may take the full forty 
 days for perfecting an appeal, and the 
 opposite party is entitled to the same 
 time. The law i> intended to be equal 
 in its operation and to apply alike to 
 the parties on both sides of the contro- 
 versy. If the administrator, or exe< 
 utor, who files a bond may perfect his 
 appeal at any time within forty days 
 (about which there seems to be no 
 doubt), there is no good reason why 
 the opposite party may not have the 
 same right."
 
 DECEDENTS' ESTATES. 227 
 
 shown. A party who asks an extension must show diligence 
 and care, for if he is himself guilty of culpable fault the court 
 will not interfere with the operation of the statutory rule. 
 
 § 264. Steps essential to secure extension of Time — A party who 
 seeks an extension of time must do all that it is incumbent upon 
 him to do, so far as reasonable care and reasonable diligence 
 will enable him to do it, for he can not justly ask relief if he 
 has himself been inactive and negligent. It is necessary for him 
 to petition for an extension of time when an extension is de- 
 sired, and to show, in his petition, sufficient cause for the relief 
 he prays, and this cause he can not show without showing what 
 he has done and why he has been prevented from fully per- 
 forming all that the statute makes essential to an appeal. The 
 petition should be verified. In strictness, the petition should 
 show merit in the appeal, not by vague general averments but 
 by proper allegations of facts. Notice of the petition must be 
 given. 1 It is true that there has been some conflict upon the 
 question of the necessity for notice, but the only defensible rule 
 is that notice shall be given. A party can not be expected to 
 keep informed of collateral and independent motions or 
 petitions, but the party who seeks relief through such petitions 
 or motions is in duty bound to impart information by a notice 
 prepared and served as the rules of the court or the statute di- 
 rect. A party against whom an appeal is asked after the ex- 
 piration of the time fixed by statute should have an opportunity 
 of being heard in opposition to such a collateral motion or pe- 
 tition. 2 
 
 § 265. Notice of the Application for an Extension of Time — The 
 
 notice should be sufficiently specific to inform the opposite party 
 of the nature of the motion or petition and the time for the hear- 
 
 1 Rule XI. is in harmony with the general doctrine" 
 
 2 Duncan v. Gainey, ioS Ind. 579; that prevails in appellate procedure, for 
 Browning v. McCracken, 97 Ind. 279. that doctrine is that notice must be given 
 In the case last named it was said: "If of all independent or purely collateral 
 such an order is desired, a formal and motions or petitions. The rules of the 
 proper application must be made, and court clearly recognize the general doc- 
 notice given to the appellee." This rule trine. Rule XIII.
 
 APPELLATE PROCEDURE. 
 
 ing should be stated. The notice should be served ten days 
 before the time fixed for the hearing. 1 The petition should be 
 filed at the time of giving the notice. For this conclusion there 
 are two reasons: First, it is incumbent upon the petitioner to 
 proceed promptly and do what he reasonably can to avoid 
 further delay ; second, the rule of the court requires that the 
 papers on which the notice is based shall be filed with the clerk. 2 
 
 § 266 Briefs upon the Application — If questions of law arise 
 upon the petition briefs should be filed. There is no necessity 
 for counsel to appear in person to the petition, for oral argu- 
 ments are not heard in such matters.' 5 The practice is for 
 counsel to file with the clerk such papers, affidavits and briefs 
 as are deemed necessary to present the matter, and they are 
 laid before the court by the clerk. 
 
 § 267. Bond must be tiled within time Limited — Where a bond is 
 necessary to an appeal it must, upon the principle considered 
 in discussing appeals in term,' be filed within the time desig- 
 nated by the statute. As a bond is required from all persons 
 other than administrators and executors, in appeals from de- 
 cisions in cases growing out of matters connected with a de- 
 cedent's estate, and as the statute fixes the time within which 
 it must be filed there can be no appeal without the bond. The 
 court may upon due application and for cause allow a bond to 
 be filed after the expiration of the time limited, but ordinarily 
 the bond must be filed within the time prescribed. 5 
 
 1 Rule X. Newman v. Riser (Ind.), Moore, 3 Dall. 371; Blair v. Miller, r 
 
 26 \. E. Rep. 1006. Dall. 21; Edmonson v. Bloomshl 
 
 3 Rule XIII. Wall. 306. After the expiration of the 
 
 3 Rule XIII. A motion or petition time limited a bond can not be filed as 
 o! the kind mentioned in the text be- a matter of course, for this is forbidden 
 longs to the class called "special mo- by the rule that all the steps essential 
 
 " and tall under Rule VII. to an appeal must be taken within the 
 
 4 See. ante, § 263; Simons v. Simons time fwed by the law. Ante, § i-S. A 
 (Ind.). 28 X. E. Rep. 702. party who neglects to do what the law 
 
 '' Rinehart v. Vail, 103 Ind. 159. Dil- requires may have relief upon a proper 
 
 igence is required, and one who is neg- application, but he can not claim it as a 
 
 ligentwill not be favored. Grigsby v. matter of strict right. If he is in fault 
 
 Purcell, 99 U. S. 505; Hamilton v. relief will seldom be granted him.
 
 DECEDENTS' ESTATES. 229 
 
 §268. Intermediate Decisions and Interlocutory Orders — The 
 
 language of the special statute is very broad, and if it were 
 considered without reference to the general principles of the 
 law it would authorize an appeal from any decision, intermedi- 
 ate or final, but it is not to be so considered. It is limited and 
 restricted by other statutory provisions and by settled princi- 
 ples, 1 and rightly so, since it is not to be assumed that the legisla- 
 ture meant to permit cases to be carved into fragments and 
 appealed piecemeal. To permit this to be done would be to 
 keep open the estates of decedents for an almost unlimited 
 period and thus produce the evil which it was the principal ob- 
 ject of the legislature to destroy. But there may be an ap- 
 pealable final judgment as to some particular and independent 
 issue although the judgment may not settle anything more than 
 the particular controversy. Thus, there may be a final judg- 
 ment upon a particular claim, 2 or in a proceeding to sell land 
 to pay debts, or the like. The question whether there is or is 
 not a final judgment from which an appeal will lie is to be 
 solved by ascertaining whether the decision appealed from was 
 rendered in an independent controversy and was fully deter- 
 minative of the rights of all the parties interested in the par- 
 ticular controversy. As we have elsewhere shown, there may 
 be a final judgment authorizing an appeal although it does not 
 cover an entire subject or affect the interests of all persons in- 
 terested in the general subject. 3 This general doctrine applies 
 to a case in which a decedent's estate is interested in a contin- 
 gent and general way, but wherein the particular controversy is 
 an independent one and is fully and finally adjudicated as to 
 the rights of all the parties interested in that controversy. 
 
 1 Thiebaud v. Dufour, 57 Ind. 59S; cases of Woolley v. The State, 8 Ind. 
 
 Goodwin v. Goodwin, 4S Ind. 584; 377; Reese v. Beck, 9 Ind. 23S; Reed 
 
 Wood v. Wood, 51 Ind. 141. The v. Reed, 44 Ind. 429, thus indicating 
 
 court has uniformly applied to appeals verv clearly that the general rule as to 
 
 under the statute the general rule that appeals from interlocutory judgments 
 
 an appeal will lie only from a final was not changed by the special statute, 
 
 judgment. Pfeifter v. Crane, S9 Ind. 4S5; 2 This general doctrine is asserted in 
 
 Angevine v. Ward, 66 Ind. 460; Pvles the case of Beard v. First Presby- 
 
 v. Adams, 97 Ind. 605. In Thiebaud terian Church, 15 Ind. 490. 
 
 v. Dufour, supra, the court cited the 3 And. §§95,98.
 
 CHAPTER XV. 
 
 APPEALS IN CRIMINAL CASES. 
 
 § 269. Statutory remedy exclusive. § 2S4. 
 
 270. Appeals can not be taken under 
 
 the statute providing for ap- 285. 
 
 peals in civil actions. 2S6. 
 
 271. Classes of appeals. 287. 
 
 272. Appeal by the State. 
 
 273. When an appeal will not lie 
 
 from a denial of a motion in 2SS. 
 arrest. 
 
 274. The State can present only 2S9. 
 
 questions of law. 290. 
 
 275. Preparation of the record. 291. 
 
 276. Bill of exceptions — When nee- 292. 
 
 essarv. 
 
 z~~. Exceptions must be reserved — 293. 
 Motion for new trial not re- 
 quired. 294. 
 
 27S. The State has no general right 295. 
 of appeal. 
 
 279. How questions of law may arise. 296. 
 
 280. What the record must show. 
 
 281. Defective record. 297. 
 2S2. The initial step — Notice. 
 
 283. Notice is merely one step to- 298. 
 wards perfecting the appeal. 
 
 Time within which the State 
 must perfect the appeal. 
 
 Time — -Waiver. 
 
 Appeal by defendant. 
 
 Defendants given a general right 
 of appeal — What must be done 
 to perfect an appeal. 
 
 Appeal by one of several de- 
 fendants. 
 
 Waiver of the right of appeal. 
 
 Waiver of errors. 
 
 Presumptions. 
 
 Record must show prejudicial 
 error. 
 
 Objections must be made in tin- 
 trial court. 
 
 Tile record.. 
 
 Bill of exceptions — When nec- 
 essary. 
 
 The bill of exceptions — Matters 
 of practice. 
 
 Appeal does not vacate the 
 judgment. 
 
 Effect of an appeal by the State. 
 
 § 269. Statutory Remedy Exclusive — The general rule is this : 
 Where the statute furnishes a specific and adequate remedy for 
 the review of a judgment in a criminal prosecution that remedy 
 must be pursued. 1 At common law no appeal was provided 
 for in criminal prosecutions in cases of felony, nor, indeed, was 
 
 ' brazier V. State. [06 End. 562; State 
 v. Lawrence, 81 N.C.522; Well-'*. 
 j Greenl. (Me.) 322; People v. Carnal, 
 6 V Y. 463 1'. Dpi - . Clark. 7 N Y 
 385. In State r . Daily. 6 Ind. <;. it was 
 
 held that the State had a right to a 
 writ of error. See, however, People v. 
 Corning, 2 Corns. (N. Y.) 9; State v. 
 Bartlett, 9 Ind. 569. 
 
 (230)
 
 APPEALS IN CRIMINAL CASES. 231 
 
 the person convicted of a felony entitled to a new trial. 1 So, 
 while it is true that we may look to the common law for prin- 
 ciples of trial procedure in aid of the statute, 2 or to prevent the 
 utter failure of justice, 3 we can look only to the statute for the 
 remedy for the review of a judgment in criminal cases. An 
 accused must accept the benefit of the statute with its burdens, 4 
 and the State can only take advantage of the statutory remedy 
 as it is given. 5 
 
 § 270. Appeals can not be taken under the Statute providing for 
 appeals in Civil Actions — Appeals in criminal cases must be taken 
 and prosecuted under the provisions of the statute providing for 
 appeals by the State or the accused, and not under the provis- 
 ions regulating appeals in civil actions. 6 But this rule does not 
 exclude the application of settled principles to the case on ap- 
 peal, nor does it preclude a reference to the general principles 
 of civil procedure, although it does require that as to the modes 
 of procedure in preparing and perfecting an appeal the statutory 
 provisions must be complied with in every material particular. 
 As to the time of appealing, the preparation of the transcript, 
 the issuing and service of notice and the like, regard must be 
 had to the criminal code, in cases where there are specific pro- 
 visions upon that subject, but as to the matters of general prac- 
 tice as, for instance, the doctrine of waiver, reference may prop- 
 erly be had to general principles. 7 
 
 1 Regina v. Murphy, Law R. 2 P. C. Mills -v. State, 52 Ind. 1S7; Ex parte 
 535; Regina v. Bertrand, 10 Cox C. C. Bradley, 48 Ind. 54S. 
 
 618; Sanders v. State, 85 Ind. 318, 324; 5 Territory v. Laun, S Mont. 322, 20 
 
 Harris Crim. Law, 406; 2 Bishop's Pac. Rep. 652. See Peterson v. Ottawa 
 
 Crim. Prac, § 126S. 41 Kan. 293, 21 Pac. Rep. 263; State v. 
 
 2 Marcus v. State, 26 Ind. 101; Goings, 100 N. C. 504, 6 S. E. Rep. SS. 
 Walker v. State, 23 Ind. 61; Bell v. 6 State v. Wallace, 41 Ind. 445. "And 
 State, 42 Ind. 335; State v. Berdetta, the civil code does not govern appeals 
 73 Ind. 185, 3S Am. Rep. 117; Wall v. in criminal cases." Sturm v. State, 74 
 State, 23 Ind. 150; Burk v. State, 27 Ind. 27S. 2S2; Farrel v. State, 7 Ind. 
 Ind. 442. 345; Whittem v. State, 36 Ind. 196,202 
 
 3 Sanders v. State, 85 Ind. 31S. 7 This general doctrine is that, as to 
 * Butler v. State, 97 Ind. 37S, 3S3; all things done by the consent, express 
 
 Veatch v. State, 60 Ind. 291. See or implied, of the parties, there is a 
 Reynolds v. United States, 9S U. S. waiver of objection. The doctrine may, 
 145; Morris v. State. 1 Blackf. 37; indeed, be more strongly stated, but this
 
 232 APPELLATE PROCEDURE. 
 
 § 271. Classes of Appeals — The subject of appeals in criminal 
 cases naturally divides itself into two parts. Appeals by the 
 State and appeals by the accused. The right of appeal is es- 
 sentially different in the two classes, and the questions for de- 
 cision are not the same. The effect of the judgment in the one 
 class of cases is very different from what it is in the other, and 
 there are material differences in the mode of procedure. 
 
 § 272. Appeal by the State — The State may appeal in the fol- 
 lowing cases : i . Upon a judgment for the defendant on quash- 
 ing or setting aside an indictment or information. 2. Upon an 
 order of the court arresting the judgment. 3. Upon a question 
 reserved by the State. 1 The judgment contemplated by the 
 statute is a final one, 2 for the general rule, heretofore discussed, 
 that appeals can only be taken from final judgments applies to 
 appeals in criminal cases. 3 Where there is a conviction of the 
 crime directly charged there can be no appeal by the State/ 
 but whether there can be an appeal where the conviction is of 
 an offence of a less grade than that directly charged is left in 
 doubt. In the only case which touches directly upon the point 
 no question was made as to the right of the State to appeal, but 
 the appeal of the State was sustained. s As the question was 
 not presented, or decided, that case can not be deemed decisive, 
 
 statement is sufficient for our present State, 10 Neb. 102; Cochrane v. State, 
 
 purpose. Randon v. Toby, 11 How. 30 Ohio St. 61; People v. Merrill, 14 
 
 {' . S. 493; Mudget v. Kent, iS Me. Kern, N. Y. 74. Parties can not 
 
 349; Nixon v. Hammond, 12 Cush. 2S5; confer jurisdiction by agreement where 
 
 Mountjoy v. State, 78 Ind. 172; Norton there is no final judgment. The finality 
 
 ite, io6Ind.i63; Mullinix v. State of a judgment is essential to jurisdiction, 
 
 10 Ind. 5. and the familiar rule that jurisdiction 
 
 1 R. S.1S81, § 1SS2; State v. Marsteller, can not be given by consent forbids the 
 
 s ; N. C. 727; State v. Padgett, S2 N. court from assuming authority over a 
 
 C. ^44. case where questions remain to be tried 
 
 ' See " What may be Appealed and determined. Wingo v. State, 99 
 
 From," Chapter V. Ind. 343; State v. Spencer, 92 Ind. 115; 
 
 3 State v. Ely, 11 Ind. 313; People v. State v. Wiseman, 6S N. C. 203; State 
 
 Clark. 7 N. Y. 3S5; People v. Nestle, v. Jefferson, 66 N. C. 309; United 
 
 [9 \. Y. 5S3. See, also, Hornberger States v. Norton, 91 U. S. 566. 
 
 v. State, 5 Ind. 300; Dougherty v. 4 State v. Hamilton, 62 Ind. 409; 
 
 . 5 Ind. 453; Farrel v. State, 7 State v. Ely, 11 Ind. 313; State v. 
 
 Ind. 345; Miller v. State. S Ind. 325; Credle, 63 N. C. 506. 
 
 Pigg v. State, 9 Ind. 363; Green v. 5 State :•. Johnson, 102 Ind. 247.
 
 APPEALS IN CRIMINAL CASES. 233 
 
 although the fact that it was assumed that the appeal would lie 
 indicates the opinion of the court. The question is difficult, for, 
 on the one hand, it may be urged that if the accused is ac- 
 quitted of the higher grade he ought not to be compelled to 
 have the costs of an appeal taxed against him ; ] on the other 
 hand, it may be forcibly urged that the object of the statute is 
 to secure an authoritative decision upon questions of law, and 
 that the acquittal of the higher grade is such a judgment of ac- 
 quittal as entitles the State to appeal. We are inclined to the 
 opinion that the State may appeal since this is the effect of the 
 decision referred to, and for the further reason that this conclu- 
 sion harmonizes with the general doctrine that a party may ap- 
 peal from a judgment in his favor if the judgment is less favora- 
 ble than that to which the law entitles him. The accused is not 
 harmed beyond the question of costs, since a judgment in favor 
 of the State would not authorize a second trial in a case where 
 there is a conviction of an offence included in the indictment, 
 for in such a case there can be no judgment of reversal. 2 The 
 doctrine we have stated can have no application to a case where 
 part only of the counts of an indictment are quashed, for in such 
 a case there is no final acquittal of any part of an offense, nor, 
 indeed, is there any final judgment. 3 While the general rule is 
 that neither the State nor the accused can appeal until there is 
 a final judgment, the rule does not preclude an accused from 
 prosecuting a second appeal where the first simply secures a 
 modification of a mandate of the trial court designating the 
 time for the execution of the accused, but it would be other- 
 wise if the first appeal brought before the appellate tribunal the 
 whole case for review. 4 It is evident that the case instanced 
 
 1 State v. Tumey, Si Ind. 559. Ind. 581, 583, it was said: " The result of 
 
 2 We assume in what has been said all the decisions is, that it is only from 
 that the question discussed can only final judgments that appeals can be 
 arise where there has been a trial and taken, unless otherwise specially au- 
 conviction of one grade of the offence thorized by statute, and it is only after 
 charged, and this assumption is obvi- judgment for the defendant eit! 
 ously valid since in order that the con- final acquittal or in setting aside the 
 troversy can arise there must be a con- whole information or indictment, that 
 viction of a lower grade and an ac- an appeal may be taken by the State." 
 quittal of the higher. 4 Koerner v. State, 96 Ind. J43. A 
 
 3 In State v. Evansville, etc., Co., 107 second appeal was taken in the case
 
 234 APPELLATE PROCEDURE. 
 
 does not fall within the reason of the rule, inasmuch as the 
 designation of the time for the execution in violation of a 
 positive statute is an error that must be first corrected in order 
 to give the accused the time the law awards for taking and per- 
 fecting an appeal. 
 
 £ 273. When an Appeal will not lie from a denial of a Motion in 
 Arrest — It has been held that the State can not appeal from a 
 ruling denying a motion in arrest in a case where the cause as- 
 signed in the motion calls in question the correctness of the ver- 
 dict on the evidence, 1 and this decision is, as we believe, cor- 
 rect, but it is probable that some of the expressions in the 
 opinion require limitation. We suppose that the conclusion 
 reached was right for the reason that an- appeal by the State 
 can not present for review any question of fact, but we sup- 
 pose, also, that it is quite clear that a motion in arrest may pre- 
 sent a pure question of law. We can not perceive how the 
 State could in any case present a question upon the evidence 
 by a motion in arrest ; nor, indeed, are we able to perceive 
 how the defendant could present a question upon the evidence 
 in that mode. If, however, a motion in arrest presents, as it 
 must do, a question of law the State may, by the appropriate 
 procedure, reserve the ruling for review. 
 
 § 274. The State can present only Questions of Law — A funda- 
 mental rule respecting procedure and jurisdiction is that the 
 State can only bring questions of law before the appellate tri- 
 bunal for review. The right of appeal is given by the statute 
 and no authority is conferred' to decide questions of fact; 2 it 
 may, however, be necessary tc state facts so that it may appear 
 that a question of law is actually presented. 3 If the questions 
 
 cited alter the judgment of the trial Campbell, 67 Ind. 302; State v. Over- 
 court was corrected, and. on that ap- holser, 69 Ind. 144. 
 
 peal, the questions in the record were 3 State t'. Kern, 127 Ind. 465; State 
 
 examined and decided. Koerner v. v. Frazer, 2S Ind. 196; State v. Ely, 14 
 
 State, 98 Ind. 7. Ind. 291 ; States .Bartlett, 9 Ind. 569. 570. 
 
 1 State v. Rousch, 60 Ind. 304. See Enough must be stated in the record to 
 
 State v. Murphy, 8 Blackf, 49b. show a real question and an error of 
 
 - Mate v. Hal!, 58 Ind. 512; State v. law. "It is not enough to except to 
 
 Van Valkenburg, 60 Ind. 302; State v. the opinion of the court." State v. 
 
 Bartlett. supra.
 
 APPEALS IN CRIMINAL CASES. 235 
 
 sought to be presented can not be decided without also decid- 
 ing upon controverted matters of fact the appellate tribunal 
 will not give any judgment upon the questions presented by the 
 State. In a case where there was an utter failure of evidence 
 to sustain a criminal charge an appeal by the State, upon the 
 ground that the trial court erred in directing a verdict for 
 the defendant, was entertained, although it was held that the 
 appeal was fruitless. 1 The question in the case cited arose 
 upon an instruction asserting a specific theory of law and 
 hence the question whether the trial court did or did not err in 
 instructing the jury presented a question of law and not of fact, 
 so that the court can not be said to have departed from the gen- 
 eral rule in entertaining the appeal in that case. We think the 
 correct general rule is this : Where the trial court in instructing 
 the jury to return a verdict for the defendant in a criminal case 
 asserts a definite theory of law the State may appeal, but where 
 the instruction determines, as a pure matter of fact, that there 
 is no evidence, an appeal will not lie. To hold that an appeal 
 will lie where the court directs a verdict simply because there 
 is no evidence, would be contrary to the settled doctrine that 
 only questions of law can be reserved by the State. 2 The ob- 
 ject of the statute providing for appeals by the State is not to 
 secure a review of questions of fact, but to secure an authori- 
 tative exposition of the law. 3 
 
 § 275. Preparation of the Record — The record must be pre- 
 pared in accordance with the fundamental principle that only 
 questions of law can be presented to the appellate tribunal in 
 cases where the State appeals. There can be little difficulty in 
 reserving questions of law in cases where the rulings challenged 
 
 1 State v. Banks, 4S Ind. 197. facts of the case and then to draw con- 
 
 2 In State v. Overholser, 69 Ind. 144, elusions of law from those facts, which 
 the court said: "But to enable us would be a proceeding, in our opinion, 
 to review the action of the court in the not contemplated by the statute author- 
 matter complained of, it would be nee- izing appeals by the State in criminal 
 essarv for us to go through the evidence cases upon questions reserved at the 
 and to determine what it may have trial." 
 
 tended, or may not have tended, to 3 The general doctrine was well and 
 prove. That would be requiring us clearly stated in State v. Swails, S Ind. 
 first to express an opinion upon the ^24.
 
 APPELLATE PROCEDURE. 
 
 bv the State arise on motions or demurrers addressed to indict- 
 ments or informations, for in such cases a due and timely ex- 
 ception will save the question, and no bill of exceptions is re- 
 quired.' Where, however, the State seeks to reserve a question 
 ol law upon a ruling other than that made upon the indictment, 
 information or other pleading, the record must be made up 
 with a view to presenting that question, and so made up that 
 the appellate tribunal can understand the question and obtain 
 an adequate conception of the ruling out of which it arises. 2 
 
 i 276. Bill of Exceptions— When necessary— A bill of excep- 
 tions is essential to present a question reserved by the State 
 on the trial, for no other construction can be placed upon the 
 language of the statute providing for reserving such questions. 3 
 The statute contemplates that only specific questions of law 
 shall be reserved and to reserve such questions it is necessary 
 that the particular .rulings should be appropriately challenged 
 in the trial court, the proper exceptions reserved and the ap- 
 propriate record made. As only specific questions can be 
 raised the exceptions must be to specific rulings, and the rul- 
 ings and exceptions must be so fully exhibited by the record 
 that the appellate tribunal can understand the particular ques- 
 tion reserved and ascertain that the mode of reserving it is 
 such as the law authorizes. 
 
 § 277. Exceptions must be reserved — Motion for New Trial not re- 
 quired — An exception to the specific ruling is essential and a 
 motion for a new trial can not, in our opinion, operate as an 
 
 1 State v. Day, ;: Ind. 483; State v. It is not enough in either case to except 
 Vanderbilt, 116 Ind. 11. to the opinion of the court, but the 
 
 2 Referring to the statute giving the record must be made up with so much 
 
 righl of appeal upon reserved of the evidence as is essential to a 
 
 ciue~tion-.it was said in The State v. proper understanding of the case in this 
 
 Bartlett, g Ind. 569, that, "The reserved court. This is indispensable in reserved 
 
 here spoken of in a criminal pro- questions whether civil or criminal." 
 
 ceedi not differ materially as to We suppose, however, that appropriate 
 
 from that provided for in the civil general statements as to material facts 
 
 practice. In both cases, the record would he sufficient. 
 
 musl Up in the lower court :t R. S.. § 1SS3; Territory v. Jinks, 
 
 with a view to its being brought here. 8 Mont. 135, 19 Pac. Rep. 3S6.
 
 APPEALS IN CRIMINAL CASES. 237 
 
 exception. We think that a motion for a new trial on the part 
 of the State is not contemplated by the statute and that it can 
 subserve no useful purpose. 1 It is settled that the appellate 
 tribunal can not require the accused to be again tried — that 
 would violate a constitutional provision — so that the filing of a 
 motion for a new trial would be a mere idle ceremony. 2 In the 
 cases which have been appealed by the State the questions 
 were, so far as our investigation has enabled us to discover, 
 examined without any motion for a new trial in the record. 
 The conclusion we assert is supported by analogous decisions 
 under the provisions of the civil code, for it is held that a 
 question upon conclusions of law stated in a special finding 
 can not be presented by a motion for a new trial, but must be 
 presented by a direct exception to the conclusions. 3 There 
 is stronger reason for applying the doctrine referred to in cases 
 of the class under immediate mention than there is for applying 
 it in civil cases, for, in that class of cases, a new trial ma)' be 
 awarded but the State can not have a second trial where there 
 has been an acquittal. As the authorities already cited show, 
 reserved questions are questions of law and not of fact, 4 and 
 such questions are properly made and saved by direct and spe- 
 cific exceptions. The great principle which runs throughout 
 all the cases is that an exception presents a question of law and 
 not of fact, and that ordinarily only questions of law are raised 
 
 1 In the case of State v. Ensey, 42 a specific ruling and to that ruling a 
 
 Ind. 4S0, the court declined to decide direct exception. 
 
 whether an exception to a ruling on a 2 State v. Newkirk, So Ind. 131; State 
 notion for new trial is such an excep- v. Tuniev. Si Ind. 559. 
 tion"as constitutes a reservation of a 3 Bundy v. McClarnon, 118 Ind. 165; 
 point 01 law.'' But the reasoning of the Clayton v. Blough, 93 Ind. 85; Schmitz 
 court upon another point leads, it seems v. Laufertv, 29 Ind. 400; Smith v. Da- 
 te us, to the conclusion stated in the vidson, 45 Ind. 396; Grimes v. Duzan, 
 text. " It is only the question on which 32 Ind. 361. 
 
 the court has given opinion, it was 4 To the cases heretofore cited to tne 
 
 said in the case cited, "and to which proposition that questions of fact will 
 
 opinion the prosecutor has excepted, not be decided on an appeal by the 
 
 which can be reviewed by this court, State may be added. State v. Yount, 4 
 
 and the ruling on that question must Ind. 653; State v. Davis, 4 Blackf. 345; 
 
 be assigned as error in this court." State v. Bouche, 5 Blackf. 154; State v. 
 
 The legitimate sequence from the prop- Johnson, 8 Blackf. 533. 
 ositions asserted is that there must be
 
 APPELLATE PROCEDURE 
 
 by an exception. It is also true that the rule that where an 
 exception is made the appropriate method of presenting a ques- 
 tion the exception itself is sufficient, when properly expressed 
 and duly embodied in the record, 1 to present a question of law 
 in cases where questions may be reserved. There is, therefore, 
 no propriety in moving for a new trial. 1 ' The term " reserved 
 questions " implies that questions may be made and saved by 
 an exception taken as the law requires and duly carried into 
 the record. 
 
 § 278. The State has no General Right of Appeal — Only such 
 questions of law as are reserved in conformity to the provisions 
 of the statute will be considered in cases where the appeal is 
 prosecuted by the State under the statutory provisions giving 
 an appeal upon reserved questions. The statute does not con- 
 fer upon the State a general right of appeal ; on the contrarv. 
 the right is limited to the classes of cases specified. Hence ii 
 is correctly held that it is only the specific questions properly 
 made and saved that can be considered on appeal. 3 
 
 § 279. How Questions of Law may arise — Questions of law mov 
 arise in various ways and such questions are available, when 
 properly saved and exhibited, no matter at what stage of the 
 proceedings, prior to final judgment, they arise, but, of course. 
 until there is a final judgment 4 there can be no appeal. Such 
 
 1 It is implied, of course, that the ex- thorized to consider upon this appeai 
 ception must be such as presents the any question not made and reserved 
 question sought to be reserved for re- upon the trial below, this appeal being 
 view. , only upon a specific question reserved 
 
 2 Fouty v. Morrison, 73 Ind. 333; by the State." All the authorities point 
 Short v. Stutsman, Si Ind. 115. Where in one direction, and that is, that there 
 the law provides tor presenting ques- must be a specific ruling made, a direct 
 tions by an exception the taking of the exception, and a bill of exceptions eru- 
 ption and its reservation in the bodj'ing the ruling, the exception and 
 
 manner prescribed are all that need be such facts as are necessary to enable 
 
 done, for the exception notifies the the appellate tribunal to understand and 
 
 court of the intention to challenge the decide the particular question reserved. 
 
 ruling on appeal and the incorporation * Where there is a ruling finally de- 
 
 ot the exception in the record properly termining the case an appeal will lie, 
 
 rves it- force, although there may be no formal order 
 
 8 State t>. Lusk, 68 Ind. 264, In this discharging the accused. State v. Allen, 
 
 the court said, "We are of the 94 Ind. 441. 
 opinion, however, that we are not au-
 
 APPEALS IN CRIMINAL CASKS. 239 
 
 questions may arise on the giving of instructions or on the re- 
 fusal to give instructions. 1 They may arise on rulings admitting 
 or excluding evidence. 2 Refusal to permit an amendment may 
 present a question of law, 3 but, ordinarily, no available question 
 can arise on such a ruling since the matter of permitting or re- 
 fusing to permit an amendment is to a great extent one of dis- 
 cretion. It is very seldom, indeed, that the prosecuting attor- 
 ney will be justified in appealing a case upon a ruling denying 
 leave to amend. It has been held that the State may by ap- 
 peal present the question as to the correctness of a ruling dis- 
 charging a jury,' and it may be said, generally, that all ques- 
 tions of law arising upon a ruling discharging an accused may 
 be reserved by the State. 5 
 
 § 280. What the Record must show — In considering what the 
 record must show in order to entitle the State to have the ques- 
 tions sought to be presented examined and determined, it is 
 proper to begin with the statement that all appeals are tried 
 by the record, 6 and that nothing is part of the record which 
 is not incorporated in it according to law. Thus, statements 
 of the clerk and mere recitals of facts in motions are not parts 
 of the record. 7 The record must show a final judgment of 
 
 1 State v. Berdetta, 73 Ind. 1S5; State v. State, 122 Ind. 141; Pattee v. State, 
 v. Hallowell, 91 Ind. 376; States. Sevier, 109 Ind. 545; Hollingsworth v. State, 
 117 Ind. 33S; State v. Ward, 75 Iowa, m Ind. 289; Brown v. State, in Ind. 
 637, 36 N. W. Rep. 765. 441; Duncan v. State, S4 Ind. 204; 
 
 2 State v. Turner, Si Ind. 559. Archibald v. State, 122 Ind. 122, 23 N. 
 
 3 State v. Frain, S2 Ind. 532; State?'. E. Rep. 758; Meredith v. State, 122 
 Walker, 26 Ind. 346. Ind. 514, 24 N. E. Rep. 161; Lawrence 
 
 * Commonwealth v. Matthews (Ky.), v. Commonwealth, 86 Va. 573, 10 S. E. 
 
 12 S. W. Rep. 323. Rep. 840; Sisson v. State, 77 Wis. 273, 
 
 5 State v. Wilson, 50 Ind. 4S7; State 45 X. W. Rep. 1130; Huffman v. State, 
 v. Lenig, 42 Ind. 541; State v. Leach, 2S Tex. App. 174, 12 S. W. Rep. 
 120 Ind. 124. 588; State v. Reed (Mo.), S. W. 
 
 6 People v. Brennan, 79 Mich. 362, 44 Rep. 1010; State v. Carter, 9S Mo. 
 N. W. Rep. 61S; State v. Atkinson, 33 176. 11 S. W. Rep. 624. It is hardly 
 So. Car. 100, 11 S. E. Rep. 693; People necessary to say that the rule stated 
 v. Callaghan, 4 Utah, 49, 6 Pac. Rep. applies in all cases, for it applies as 
 49; Evans v. Commonwealth (Ky.), 12 S. well to appeals by the State as to 
 W. Rep. 76S; State v . Potts, 20 Neb. appeals by the accused. The cases 
 789, 22 Pac. Rep. 7^4. cited show the application of the settled 
 
 T State v. Cooper, 103 Ind. 7^; Dolan general rule in a great variety of forms
 
 2 u APPELLATE l'K< (CEDl RE 
 
 acquittal. 1 Where an amendment is sought to be made the 
 id must show the proposed amendment or no question will 
 be presented. 2 Where leave to rile a substituted affidavit in 
 support of an information is asked, the proffered affidavit must 
 be properly incorporated in the record. 3 An agreement by the 
 counsel for the accused can not take the place of a record, 4 al- 
 though such an agreement might be effective to supply omis- 
 sions made in transcribing the record as actually made by the 
 trial court. The conclusion to which the cases lead is that the 
 State must bring into the record by a bill of exceptions all ex- 
 trinsic facts, all special or collateral motions, all collateral affi- 
 davits and the like, or no question will be presented. It is, in- 
 deed, not possible to present reserved questions, except such as 
 arise on the record proper, without a bill of exceptions. 5 
 
 § 281. Defective Record — If so much of the record is properly 
 brought to the appellate tribunal as will enable the court to un- 
 derstand and decide the questions presented by the State, the 
 appeal will not, as it has been held, be dismissed, but the ac- 
 cused may, by certiorari , supply defects or omissions/' The 
 case to which we refer states the doctrine somewhat too broadly. 
 If the transcript shows on its face that it is so defective as not 
 to present the question fully and fairly, both to the State and to 
 the defendant, the appeal ought not to be entertained. The 
 language of the statute, as well as the rule declared by the ad- 
 judged cases, clearly means that the State must bring up such 
 a record as shall fairly and justly exhibit the questions. 7 If, 
 
 1 State v. Hallowell, 91 Ind. 376; State thus made did not bring into the record 
 
 Wheeler, 65 Iowa, 619. The doc- either the motion by the State's attor- 
 
 trine that consent can not give juris- nev or the ruling thereon. The only 
 
 diction where there is no final judgment way in which they could be brought 
 
 applies to appeals by the State as well into and made part of the record was by 
 
 as to appeals by the accused. State v. a bill of exceptions." 
 
 Davis. 47 Iowa, 634. 6 State v. Weil, 89 Ind. 2S6. 
 
 Frain, 82 Ind. 532. 7 The statute, as has been held by the 
 
 3 State v. McKee, 109 Ind. 497. court from the first decision to the last, 
 
 ' State v. Davis, 47 Iowa, 634; State confers a special right upon the State, 
 
 v. Wheeler, <>;; Iowa. 619. See, also, and to secure the right thus conferred 
 
 -. Burnett, tig Ind. \ui. the requirements of the law must be 
 
 5 In the case of the State v. McKee. strictly obeyed. 
 
 109 Ind. 497. it was said: ''The entry
 
 APPEALS IN CRIMINAL CASES. 241 
 
 however, there is a defect relating merely to a matter not es- 
 sential to a full understanding of the question it may be disre- 
 garded, or an amendment may be ordered. 
 
 § 282. The Initial Step — Notice — An appeal by the State is begun 
 by serving a written notice upon the clerk, of the court where 
 the judgment was rendered, and by serving a like notice upon the 
 defendant or his attorney, if either can be found, but if neither 
 the defendant nor his attorney can be found, the notice must be 
 posted for three weeks in a conspicuous place in the clerk's 
 office.' The notice must show that the State appeals from a 
 particular judgment and that judgment should be identified with 
 reasonable certainty. Notice is indispensable to an appeal by 
 the State, 2 and it must be given as the statute directs. 3 It is 
 said in some of the cases that the notice constitutes the appeal, 
 but this can not be correct, for merely giving notice does not 
 constitute an appeal in the true sense. 4 It is, indeed, but one 
 step towards taking an appeal, as all the well considered de- 
 cisions prove, and as will hereafter be shown. 
 
 § 283. Notice is merely one step towards perfecting the Appeal — 
 
 All the provisions of the statute must be taken into consider- 
 ation, and so they have been in the cases in which the question 
 as to what constitutes an appeal has been fullv considered and 
 decided. 5 It is perfectly clear upon a consideration of all the 
 
 1 R. S., § 1S87. the appeal, jet the decisions themselves 
 
 2 McLaughlin v. State, 66 Ind. 193; show that there is no appeal unless the 
 Buell v: State, 69 Ind. 125; Darr v. transcript is filed within the time lim- 
 State, 82 Ind. 11. ited. If it be true that the failure to file 
 
 3 Quick v. State, 73 Ind. 147, 148. the transcript within the time specified 
 
 4 It is obvious that there is no effect- requires a dismissal, it must be true that 
 ive appeal until the jurisdiction of the no valid appeal has been taken, since it 
 appellate tribunal attaches, and juris- is logically inconceivable that a valid 
 diction can not attach where there is appeal can be dismissed. To so hold 
 nothing upon which the appellate tri- is to adjudge that an appeal taken 
 bunal can act. A mere notice can not according to law is no appeal. We 
 call into exercise the appellate jurisdic- have, perhaps, given this question more 
 tion; much more is required. attention than necessary, but our apol- 
 
 5 Winsett v. State, 54 Ind, 437; Far- ogy is that some of the decisions indi- 
 rell v. State, 85 Ind. 221; Price v. State, cate that the notice constitutes the ap- 
 74 Ind. 553. While it is said in some peal and it seems proper to show that 
 of the cases that the notice constitutes such a doctrine is erroneous. 
 
 16
 
 242 APPELLATE PROCEDURE. 
 
 statutory provisions that the mere notice does not constitute an 
 appeal, and this conclusion is obvious when it is brought to 
 mind that until the record and the assignment of errors are 
 properly before the appellate tribunal there is nothing invoking 
 the exercise of appellate jurisdiction. It is inconceivable that 
 there can be an appeal in the true sense until the case gets into 
 the appellate tribunal according to law, for it is only upon the 
 record that appeals can be tried and determined. The truth is 
 that the notice is but a step in the appeal, although it is an im- 
 portant one. It is not, at all events, all that is essential to an 
 appeal, for it is not possible to consider the notice as the appeal 
 without disregarding settled rules of law, as well as important 
 provisions of the statute. 
 
 § 284. Time within which the State must perfect the Appeal — 
 
 The language employed in the statute and in the decisions upon 
 the subject leaves the question of the time within which an ap- 
 peal may be perfected in confusion, but it seems to us that this 
 confusion may be cleared away by a just application of funda- 
 mental principles. The general words of the statute conferring 
 the right of appeal in criminal cases are mandatory ; they are 
 these: "All appeals must be taken within one year after the 
 judgment is rendered." 1 If this provision stood alone there 
 could be but little doubt that all that is necessary to constitute 
 a lull appeal must be done within one year, but other provisions 
 must be considered. 2 In another place it is provided that " an 
 appeal is taken" by giving notice, and in the same section as 
 that from which we first quoted, it is provided that " the tran- 
 script must be filed within ninety days after the appeal is taken." 
 It is evident that the term " taken" does not mean a perfected 
 appeal, for if that meaning be ascribed to the term, then all 
 that is essential to an appeal is to give notice, but this can not 
 be true, as the statute commands that the transcript shall be 
 filed within ninety days. The word "taken" must, as we 
 think, be construed to mean begun, for it can not be held to 
 mean that an appeal is perfected, since that would involve the 
 absurdity of holding that all that is necessary to constitute an 
 
 1 R. S., § 1SS5; ante, § [28. 2 R. S., § 1S87.
 
 APPEALS IN CRIMINAL CASES. 243 
 
 appeal is the notice, and that all the procedure is confined to 
 the trial court. In strictness an appeal is not taken until the 
 cast- is before the appellate tribunal according to law, and that 
 it can not possibly get there upon a mere notice is entirely clear. 1 
 The loose expressions in some of the cases that notice consti- 
 tutes the appeal can not, therefore, be deemed authoritative. No 
 one of the cases upon the subject, so far as our examination has 
 enabled us to discover, holds that the time for perfecting an 
 appeal may be prolonged beyond the time designated, or that 
 the appeal is fully taken by giving notice. 2 The expressions 
 contained in many of the cases bearing upon the question in- 
 dicate a conclusion in accordance with the view we have ex- 
 pressed. 3 Unless the notice perfects the appeal it can not be 
 said to be fully taken, and, certainly, until so taken it is not 
 pending in the appellate tribunal. That the notice does not 
 perfect the appeal has been, in effect, decided. 4 The Iowa 
 statute is very similar to ours ; there is, indeed, 5 no substantial 
 difference, and it was held by the Supreme Court of that State 
 that the appeal must be taken within one year from the time the 
 judgment was rendered. It was also held that the time for 
 perfecting the appeal could not be extended by agreement. 6 
 
 1 To hold that the mere notice con- unless within a year from the date of 
 stitutes the appeal would be contrary to the judgment a new notice of appeal 
 authority and subversive of principle, shall be served." In McLaughlin v. 
 Ante, §§ 12S, 162. State, 66 Ind. 193, it was said: " If we 
 
 2 In Winsett v. State, 54 Ind. 437, all had proof that proper notice of an ap- 
 the steps were taken within the year, peal had been given within the year 
 and the only question for decision was during which an appeal was allowed, 
 as to the effect of the failure to file the still this appeal could not be sustained." 
 transcript within thirty days after the * In Buell v. State, 69 Ind. 125.it was 
 notice was given. This is true of the said: "As the transcript of the cause 
 case of State v. Walters, 64 Ind. 226, was not filed within thirty days there- 
 and so it is of the cases of Buell v. after, the appeal would not have been 
 State, 69 Ind. 125; Price v. State, 74 perfected in accordance with the re- 
 Ind. 553. quirements of the statute." See Lich- 
 
 3 In Farrell v. State, 85 Ind. 221, it tenfels v. State, 53 Ind. 161; post, ; 
 was said: " For ninety days after the 5 2 McClain's Stats, of Iowa. §§ 5907, 
 service of the notice the appellee is 5909. 
 
 bound to take notice of the filing of the "State v. Fleming, 13 Iowa. 443. 
 
 transcript, but. if it is not filed within It was said by the court, that: "This 
 
 that time, the appellee may presume court can not, under this provision, ac- 
 
 that the appeal has been abandoned, quire jurisdiction until there has been
 
 :\\ 
 
 APPELLATE PROCEDURE. 
 
 285. Time — Waiver — It has been held that the defendant 
 may waive his right to avail himself of the failure to file the 
 transcript within the time prescribed. 1 But we believe that this 
 doctrine is erroneous and it certainly can not be extended with- 
 out violating principle and opposing authority. It can not, at 
 all events, be so extended as to sustain an appeal where the 
 important steps have not been taken until after the expiration 
 of one year from the time the judgment was rendered. If the 
 statute is not so far complied with as to enable the appealing 
 party to file the transcript within one year and ninety days af- 
 ter the judgment was rendered the appellate tribunal can not, 
 as we believe, entertain jurisdiction, except in cases where 
 fraud or some such cause is shown excusing the delay and 
 making a case for relief under the general and inherent power 
 to prevent fraud or oppression. 2 There is an explicit and direct 
 
 judgment rendered. The parties can 
 not, even by agreement, appeal from 
 the ruling of the district court upon a 
 motion to quash or a demurrer to an 
 indictment. There must be a judgment 
 rendered before either party can appeal. 
 The same may be said with reference 
 to the latter clause of this section. It 
 is equally, if not more, imperative. It 
 i> the policy of the criminal law that all 
 criminal litigation should be as early 
 terminated as possible. In view of this 
 policy this provision was enacted. If a 
 party fails to prosecute his appeal for 
 one year after judgment such right is 
 forever at an end, and this court has no 
 power to entertain jurisdiction of a 
 cause after this time has elapsed. Nor 
 do we think that the attorney for the 
 can confer such jurisdiction." 
 I i former chapter (Chapter V, " Time 
 within which an Appeal may be 
 Taken"), we collected many cases hold- 
 thal time can not be extended by 
 agreement, and to them may be added 
 Medcalf v. Commonwealth. 84 Ky. 485; 
 Stratton v. Commonwealth, 84 Ky. [90. 
 See State v. Davis, 47 Iowa. ' 
 1 Statef. Walters, 64 End. 226. Time, 
 
 as we have shown in Chapter V, is 
 jurisdictional, and while it may be pos- 
 sible that a party can waive strict per- 
 formance of one step in perfecting an 
 appeal, we think it quite clear that he 
 can not, by agreement, express or im- 
 plied, extend the time beyond that fixed 
 by law. Ante, §§ ill, 112, 128, 162. 
 
 2 The decision in the case of the 
 State v. Walters, 64 Ind. 226, does not 
 oppose this conclusion, for in that case 
 all the acts essential to the appeal were 
 performed within the year. As ap- 
 pears from the quotations made from 
 the decided cases the clear implication 
 is that the notice must be served within 
 the year or there can be no appeal. 
 This is the interpretation put upon the 
 case above named by. the court in the 
 case of West v. Cavins, 74 Ind. 205, 
 where that case was cited, and it was 
 said: "An agreement to submit made 
 within the year allowed for the appeal 
 and a postponement of the motion to 
 dismiss beyond that time in good con- 
 science should be held to constitute 
 such waiver.'' In our judgment all the 
 acts essential to an appeal, such as fil- 
 ing the transcript, and assigning error,
 
 APPEALS IN CRIMINAL CASES. 245 
 
 decision in support of the proposition that the appeal must be per- 
 fected within one year and ninety days from the time the judg- 
 ment was rendered, 1 and, as the question was there directly 
 presented and judgment directly given upon it, the decision 
 must probably be considered as closing the question. It does 
 unquestionably affirm that time is jurisdictional, and that the 
 notice does not constitute the appeal. It may be doubted 
 whether the decision that the time for appealing is one year 
 and ninety days is right, since there is strong reason for the con- 
 clusion that the law means that the appeal shall be fully perfected 
 within one year, but there can be no doubt that the decision 
 that notice alone does not constitute the appeal is correct 
 
 § 286. Appeal by Defendant — Appeals by defendants in crim- 
 inal cases, so far as the time of taking an appeal 2 and the mode 
 of giving notice are concerned, are governed by substantially 
 the same rules as those governing appeals by the State, except 
 as to the service of notice. Where a defendant appeals it is 
 sufficient to serve notice upon the prosecuting attorney. 3 The 
 
 as well as giving notice, must be done is that until the transcript is filed there 
 within the time fixed bylaw. But ir- is no appeal. The effect of the decision 
 regularities and informalities may be is that a case is not in the appellate tri- 
 waived. Beggs v. State, 122 Ind. 54, 55. bunal unless there has been perform- 
 1 Lichtenfels v. State, 53 Ind. 161. ance of the entire series of required acts. 
 In the case cited the question came It may be remarked that section 18S9 of 
 before the court on a motion to dis- the criminal code (R. S. 1SS1) recognizes 
 miss the appeal, and it was the only the difference between the appeal and 
 question in the case. In giving judg- the notice, as witness the words, "An 
 ment the court said: "The judgment appeal shall stand for trial immediately 
 was rendered at the April term, 1S74. after filing the transcript and the notice 
 The transcript was filed in this court of appeal." It may also be noted that 
 on the 15th day of June, 1S76. This at the time the decision referred to was 
 was too late. The appeal must be taken made the statute required the transcript 
 within one year after the judgment is to be filed within thirty days after no- 
 rendered, and the transcript must be tice. 
 
 filed within thirty days after the appeal 2 The appeal must be perfected with- 
 
 is taken. The transcript must have in one year and ninety days from the 
 
 been filed within one year and thirty time the final judgment was rendered. 
 
 days after the rendition of the judg- Ante., §$ 284, 285; Lichtenfels v. State, 
 
 ment. This was not done." While 53 Ind. 161. 
 
 there is confusion produced by the in- 3 R. S., *} 1S87; Darr v. State, 82 Ind. 
 
 accurate use of the term the "appeal is 11. 
 taken," yet it is clear that the decision
 
 246 
 
 APPELLATE PROCEDURE. 
 
 criminal code does not provide for appeals in term so that all 
 appeals must he taken upon notice given as the law requires." 
 Notice ma}- be waived ; this is so by express enactment, and it 
 would be so upon general principles unless forbidden by posi- 
 tive law. 2 
 
 § 287. Defendants given a general right of Appeal — What must 
 be done to perfect an Appeal — A defendant in a criminal case is 
 given an appeal as of right, and the right is a general and com- 
 prehensive one, since all intermediate errors may, if appropri- 
 ately saved, be presented for review. But the right given by 
 the statute must be exercised under its provisions and the es- 
 sential acts required to effect an appeal must be performed 
 within the time prescribed. If there is a substantial compliance 
 with the requirements of the statute the appeal can not be dis- 
 missed, 3 for a dismissal for any defect or informality in taking 
 the appeal is forbidden. 4 A second appeal may be taken if the 
 fust is ineffective, because not properly perfected, but it must, 
 as the statute declares, be taken " within the year." 5 The 
 words "within the year" mean, it is evident, the year desig- 
 nated in a preceding section of the statute, 6 and it is difficult to 
 perceive how they can be construed to mean a year and ninety 
 days, but that is the construction adopted in the case heretofore 
 cited. 7 The conclusion we suggest seems to be required by the 
 
 1 McLaughlin v. State, 66 Ind. 193; 
 Buell v. State, 69 Ind. 125; Beck v. 
 
 . 72 Ind. 250. 
 
 2 R. S.. § 18S3. 
 
 3 In Beggs f. State, 122 Ind. 54, it 
 was said: "In the ordinary course an 
 appeal is taken in a criminal case by 
 serving notice on the prosecuting at- 
 torney that the appellant appeals to the 
 Supreme Court, and by filing a tran- 
 
 p1 in the clerk's office within ninety 
 day- alter such appeal or notice. In 
 the present case a transcript was filed, 
 after which notice was served upon the 
 prosecuting attorney that an appeal had 
 been taken. All this was done within 
 the time in which an appeal could have 
 taken. While not a literal com- 
 
 pliance with the statute, it is in sub- 
 stantial conformity therewith, and must 
 be held to constitute an appeal." It is 
 important to note that this decision de- 
 clares, as we have done, that the acts 
 required by the statute must be done 
 within the time prescribed. 
 * R. S., § 1890. 
 
 5 R. S.. § 1S90. 
 
 6 R. S.. § iSS 5 . 
 
 7 Lichtenfels v. State, 53 Ind. 161. 
 Unless the transcript is filed in the 
 clerk's office of the Supreme Court 
 within one year and ninety days the 
 appellate tribunal can not entertain 
 jurisdiction. Hardt v. State, 13 Texas 
 A pp. 426. See, ante, §§ 2S4, 285.
 
 APPEALS IN CRIMINAL CASES. 247 
 
 language of the statute and by the decisions. It is certainly 
 required by the rules declared in analogous cases. 
 
 § 288. Appeal by one of Several Defendants — One of several de- 
 fendants may appeal, and no notice to co-parties is required. 1 
 An appeal in a criminal case stands for trial " immediately after 
 filing the transcript and notice of appeal, if the Supreme Court 
 is in session ; if not in session, at the next term thereof." 2 The 
 case may be submitted immediately upon filing the transcript 
 and notice. 3 A brief must be filed by the appellant within sixty 
 days atter the submission or the appeal will be dismissed. 4 
 Error must be assigned or no quesions will be presented. : ' The 
 rule governing the assignment of errors is substantially the 
 same in criminal cases as it is in civil cases and the rules stated 
 in another place govern the procedure in criminal cases. 6 
 
 § 289. Waiver of Right of Appeal — The doctrine of waiver has 
 a wide and important influence in criminal cases as well as in 
 civil. It underlies, in fact, all the cases which hold that the 
 failure to interpose timely and proper objections in the trial 
 court precludes an accused from taking advantage of rulings on 
 appeal. Many rulings that would be available on appeal if 
 timely and specific objections had been made in the trial court 
 will not be available because of the failure to make the appro- 
 priate objections in the court of original jurisdiction. 7 The 
 
 1 R. S., () 1SS6. ing tendering an issue of law only, and 
 
 2 R. S., § 18S9. must be signed by the party or his at- 
 8 Rule XVIII. torney." State v. Delano, 34 Ind. 52. 
 
 4 Rule XVIII. 6 "The Assignment of Errors," Chap- 
 
 5 Sturm v. State, 74 Ind. 278; Thoma ter XVI. 
 
 v. State, 86 Ind. 1S2; Burst v. State, SS 7 This principle is illustrated in crim- 
 
 Ind. 341; Powers v. State, 87 Ind. 144, inal cases by the decisions which hold 
 
 153; Millikanr. State, 70 Ind. 2S3; Burke that where objections to an indictment 
 
 V . State, 47 Ind. 52S; Malott v. State, are not made until after verdict they 
 
 26 Ind. 93. "The errors must be spe- will be of no avail, although thev would 
 
 daily assigned." Boswell v. State, 8 have been available on a motion to 
 
 Ind. 499. The decisions place civil and quash. Nichols v. State, 127 Ind. 406, 
 
 criminal cases substantially upon the 26 N. E. Rep. S39. In civil practice the 
 
 same footing so far as concerns the as- principle is illustrated by the numerous 
 
 signment of errors. Sturm v. State, su- cases which hold that defects in plead- 
 
 fra. "An assignment of error is a plead- ings are cured by the verdict. Jenkins
 
 248 
 
 APPELLATE PROCEDURE. 
 
 right of appeal itself may be waived. It is waived by an ac- 
 cused who flees and becomes a fugitive from justice. 1 Some 
 of the courts have carried the doctrine of waiver so far as to 
 hold that payment of the fine waives the right of appeal, but 
 this we believe to be wrong, for, in our opinion, a defendant 
 who simply pays a fine adjudged against him does not consent 
 t j the judgment, inasmuch as he only does what the organ of 
 the law exacts and what it may be necessary for him to do in 
 order to escape imprisonment. 2 The principle we are consid- 
 ering finds a striking illustration in a case wherein it was held 
 that a defendant who had received a pardon might prosecute 
 an appeal. 3 Where the positive law imperatively fixes a time 
 to which the execution of a death sentence must be postponed, 
 the failure to object will not waive the right to make the ques- 
 tion on appeal. 4 Some of our own decisions break in upon the 
 established doctrine of waiver to an extent that, as we have 
 elsewhere said, can not be vindicated upon principle or author- 
 
 V. Rice, S4 Ind. 342, Du Souchet v. 
 Dutcher, 113 Ind. 249; Taylor v. John- 
 son, 113 Ind. 164; Orton v. Tilden, no 
 Ind. 131. See Waiver. 
 
 1 Sargent v. State, 96 Ind. 63; Mc- 
 Corkle v. State, 14 Ind. 39; Heath v. 
 State. 101 Ind. 512; Smith v. United 
 States, 94 U. S. 97; Commonwealth v. 
 Andrews, 97 Mass. 543; Leftwich v. 
 Commonwealth, 20 Gratt. 716; People 
 v. Genet, 59 N. Y. So, 17 Am. Rep. 315; 
 People :•. Redinger, 55 Cal. 290, 36 Am. 
 Rep. 32; Bonahan v. Nebraska, 125 U. 
 
 ,:. S Sup. Ct. Rep. 1390; State v. 
 Murrell, 33 So. Car. S3, n S. E. Rep. 
 6S2. 
 
 2 As we have shown, payment of a 
 judgment by the 'defendant in a civil 
 action does not waive the right of ap- 
 peal, and there is much stronger reason 
 for holding that it should not have that 
 effect in criminal cases than there is in 
 civil action-, liver v. Norton, 26 Ind. 
 
 Ainu- v. Chappel, 2S Ind. 469; 
 Hill v. Starkweather, 30 Ind. 434; Bel- 
 ton v. Smith. 45 Ind. 291. 
 
 s Eighmy v. People, 7S N.Y. 330. It 
 was said in this case that: "The 
 pardon issued because he was deemed a 
 lit subject of mercy, and in consequence 
 of it the sentence was not enforced, but 
 from the judgment until reversed in- 
 jury may be presumed. The defendant 
 may not be punished according to its 
 terms, but the infamy and discredit to 
 which, by it, he is subjected will re- 
 main.'' For interesting and instruct- 
 ive decisions of the subject of pardons, 
 see Mr. Thornton's article on " Pardon 
 and Amnesty," 6 Crim. Law Mag. 
 457, and his note to Woodward v. Mur- 
 dock, 13 Crim. Law Mag. 71. See, 
 also, for a general statement of the 
 effect of a pardon, Butler v. State. 9J 
 Ind. 37S, 3S3. As to the right of appeal, 
 generally, because of the effect of the 
 judgment, see Johnson v. Common- 
 wealth. 87 Kv. 1S9, 13 S. W. Rep. 520; 
 State V. Gilmore, 2S Mo. App. 561. 
 
 4 Koerner v. State, 96 Ind. 243. See 
 Wartner v. State, 102 Ind. 51.
 
 APPEALS IN CRIMINAL CASES. 249 
 
 ity. We refer to the cases wherein it was held that an accused 
 might plead guilty, appeal, and secure a reversal, because the 
 indictment for selling liquor without license failed to allege that 
 the quantity sold was less than a quart, although it did allege 
 that the quantity sold was " one gill." 1 The confession em- 
 bodied in a plea of guilty can not operate as a waiver of the 
 right of appeal in a case where there is no law defining 
 the offense, and, possibly, it may not operate as a waiver where 
 there is not enough in the indictment or information to indicate 
 the nature of the offense. But where there is a law defining 
 the offense, and an attempt to charge the offense by stating 
 facts fairly indicating the general nature of the offense, the 
 plea of guilty must, as we are fully persuaded, be deemed to 
 waive the right of appeal. 2 The indictment, or information, 
 may be radically defective and yet the confession contained in 
 the plea of guilty have the effect to waive the appeal, for, where 
 there is a confession, deliberately made in court, that the de- 
 fendant is guilty of the crime which the allegations of the in- 
 dictment or information fairly informed him is attempted to be 
 properly charged, there is really no existing controversy, and 
 if no controversy, no jurisdiction. 3 It is no doubt true that 
 where the trial court has no jurisdiction the accused may ap- 
 peal, for he has a right to have a void judgment annulled, but 
 such a case is essentially different from one in which there is 
 
 1 Arbintrode v. State, 67 Ind. 267. guilty, but the point is as to the right 
 
 The court broadly stated that: "If it to confess the crime assumed to be 
 
 be true that the facts alleged do not charged and then successfully appeal, 
 
 constitute an offense, the appellant has The confession is that the charge is 
 
 lost nothing by pleading guilty." The true and sufficient, and the only possi- 
 
 doctrine seems to have originated in the ble question that can be open is whether 
 
 case of Henderson v. State, 60 Ind. there is any statute denning the crime 
 
 296, but no authority is there cited assumed to be charged, 
 
 which gives even the slenderest support 2 Casper v. State. 27 Ohio. 572; Stats 
 
 to the broad doctrine asserted. The cases v. Knowles, 34 Kan. 393; State v. 
 
 cited certainly intimate — some of them, Burthe, 39 La. Ann. 32S. 
 
 indeed, assert — an entirely different doc 3 Eberly v. Moore. 24 How. (U. S.) 
 
 trine. Hornberger v. State, 5 Ind. 300; 147. 158; Scott v. Kelly, 22 Wall. 57; 
 
 Hertzfield :•. State, 6 Ind. 23; Stone v. Commonwealth v. McCready, 2 Metcf. 
 
 State, 42 Ind. 41S. The point is not as (Ky.) 376; People v. M'Kay, iS Johns, 
 
 to the right to challenge an indictment 212: State v. Kinney, 41 Iowa, 424. 
 where there has been a plea of not
 
 250 
 
 APPELLATE PROCEDURE 
 
 jurisdiction and an effort to charge an offense so fully carried 
 out as to inform the accused in a general way of the crime in- 
 tended to be charged against him. 
 
 § 290. Waiver of Errors — Errors of the gravest character 
 may be expressly or impliedly waived by a defendant in a 
 criminal case, and when once effectively waived they can not 
 be revived on appeal. Failure to object to the competency of 
 a judge will operate as a waiver. 1 An accused mav waive his 
 right to the benefit of the constitutional provision that he shall 
 be confronted by the witnesses for the State. 2 It has been held 
 that a failure to object precludes the defendant from success- 
 fully urging on appeal that an indictment was erroneously re- 
 turned at an adjourned term. 3 Objections to the impanel- 
 ing of the jury, to the qualifications and to the conduct of 
 jurors are waived unless seasonably interposed, 4 but if the 
 grounds of the objection are unknown or could not be dis- 
 covered by the exercise of prudence and diligence there is not 
 necessarily a waiver. Objections to the form of a judgment 
 must be made in the trial court, and specifically made, or they 
 will not be available on appeal. Misconduct of counsel in 
 
 1 Case ?'. State. 5 Ind. 1; Smurr 
 v. State, 105 Ind. 125; Henning v. 
 State, [06 ind. 386,395, 55 Am. Rep. 
 756; Kennedy t\ State, 53 Ind. 542; 
 Schlungger v. State, 113 Ind. 295; 
 Littleton v. Smith, 1 19 Ind. 230; Haves 
 v. Svkes, 120 Ind. 1S0; Bartley v. Phil- 
 lips, 114 Ind. 189; Cargar v. Fee, 119 
 Ind. 536; Bowen v. Swandeer, 121 Ind. 
 164. Whatever contusion sonic of the 
 earlier cases mav have created, the rule 
 must now he regarded as settled that 
 objections to a judge fro tempore must 
 be opportunely made in the trial court. 
 The authorities support this conclusion. 
 State v. Anone, 2 Nott. & Mc. 27; 
 Taylor:. Skrine. 2 Const. (S.C.) 696; 
 St. ite V. Ailing, [2 Ohio. 16; State V. 
 Lowe. 21 W. Va. 782; Guice v. State, 
 Miss. 714; People v. Cornetti, 92 X. 
 Y. 85, SS; State v. Bloom, 17 Wis. 521. 
 
 2 Boggs v. State. S Ind. 463; Butler 
 v. State, 97 Ind. 378; Shular v. State, 
 105 Ind. 2S9. See, generally, Williams 
 v. State, 61 Wis. 2S1; Wills : . State. 73 
 Ala. 362; State v. Wagner, 7S Mo. 644, 
 47 Am. Rep. 131; Hancock v. State. 14 
 Texas App. 392: Murphy v. State, 97 
 Ind. 579; State v. Wamire, 16 Ind. 357; 
 Fight V. State, 7 Ohio, 1S0; Barton r. 
 State, 67 Ga. 653. 44 Am. Rep. 743; 
 United Static v. Davis, 6 B latch. 464. 
 
 3 Porter v. State, 2 Ind. 435. 
 
 4 Henning :•. State, 106 Ind. 3S6, and 
 cases cited p. 395. Barlow v. State, 
 2 Blackf. 114. See Cray -•. State, 32 
 Ind. 384; Romaine v. State, 7 Ind. 63; 
 Murray v. State, 26 Ind. 141; Molihan 
 v. State. 30 Ind. 266; Farrcll v. State, 
 33 Ind. 1S3; Harman v. State, 11 Ind. 
 311; Long v. State, 95 Ind. 4S1.
 
 APPEALS IX CRIMINAL CASES. 
 
 251 
 
 argument must be specifically and duly objected to or there 
 will be a waiver. In almost every conceivable form the doc- 
 trine of waiver has been enforced in criminal cases; 1 it has 
 been enforced in respect to pleadings, in respect to changes of 
 venue, 2 and in respect to the admission and exclusion of evi- 
 dence. Errors although saved in the trial court may be waived 
 by a failure to direct attention to them on appeal, 3 but this rule 
 is one to be cautiously applied. It is entirely safe to sav that 
 many constitutional rights, and all rights not constitutional, or 
 not affecting the jurisdiction of the subject, may be waived. 
 This conclusion is supported by a great number of authorities. 4 
 
 § 291. Presumptions — It is an established rule in criminal 
 cases, as well as in civil cases, that the appellate tribunal will 
 indulge all reasonable presumptions in favor of the legality and 
 regularity of the proceedings of the trial court. 5 Where all the 
 
 1 Douglass v . State, 72 Ind. 385, cit- 
 ing Teal v. Spangler, 72 Ind. 380; 
 Coble 7'. Elzroth, 125 Ind. 429; Grubb 
 v. State, 117 Ind. 277; Coleman -'.The 
 State, in Ind. 563; Morrison v. State, 
 76 Ind. 335. In Coleman v. State, 
 supra, it was said: " It is a settled rule 
 that a person having a knowledge of 
 the incompetency or misconduct of a 
 juror, or of any other matter not affect- 
 ing the jurisdiction of the court, which 
 would vitiate the trial, who, neverthe- 
 less, proceeds to a conclusion without 
 objection, will not thereafter be heard to 
 object that the trial was vitiated there- 
 by." State v. Caulfield, 23 La. Ann. 
 148, State v. Drogmond, 55 Mo. 87; 
 Henslie v. State, 3 Heisk. 202; Com- 
 monwealth v. Dedham, 16 Mass. 141. 
 
 2 Clark v. State, 4 Ind. 26S; Duncan 
 v. State, 84 Ind. 204. 
 
 3 Powers v. State, 87 Ind. 144; Hol- 
 lings worth v. State, 111 Ind. 2S9, 12 X. 
 E. Rep. 490, citing Liggett v. Firestone, 
 102 Ind. 514; Pratt v. Allen, 95 Ind. 
 404; Xorthwestern, etc., Co. v. Haze- 
 lett, 105 Ind. 217; Landerwlen v. 
 Wheeler, 106 Ind. 523. 
 
 * Heath v. State, 101 Ind. 512. See, 
 " Waiver of Constitutional Rights in 
 Criminal Cases," 6 Crim. Law. Mag. 
 182, auth. note 1S6; State v. Poison, 29 la. 
 133; State v. Worden, 46 Conn. 349; 
 State v. Jarvis, 20 Ore. 437, 23 Pac. Rep. 
 251 ; State v. Leeper, 70 Iowa, 74S, 30 X. 
 W. Rep. 501 ; App v. State, 90 Ind. 73, 
 McQueen v. State, 82 Ind. 72. A strik- 
 ing illustration is supplied by the cases 
 which hold that if incompetent evidence 
 is allowed to go to the jury without ob- 
 jection and it makes out a case the judg- 
 ment will not be reversed. Cross v. 
 People, 47 111. 152, S. C. 95 Am. Rep. 
 474; Graves v. State, 121 Ind. 3^7; 
 Hickey v. State, 23 Ind. 21. See, gen- 
 erally, Mergentheim v. State. 107 Ind. 
 
 S67- ' 
 
 5 State 7'. Hanna, 84 Ind. 183; Buell 
 v. State, 72 Ind. 523; Parker v. State, 
 78 Ind. 259; Folden 7'. State, 13 Xeb. 
 328; State 7'. Collins, 33 La. Ann. 152; 
 Bohannon 7'. State, 14 Texas App. 271; 
 State v. Brown, 33 S. C. 151, 11 S. E. 
 Rep. 641; People :•. Cline, S3 Cal. 374. 
 23 Pac. Rep. 391; Duncan r. State, 
 SS Ala. 31, 7 So. Rep. 104; State
 
 252 APPELLATE PROCEDURE. 
 
 instructions are not in the record those asked by the defendant 
 will be presumed to have been proper]}- refused because in- 
 cluded in the instructions given. 1 Where the evidence is not 
 in the record it will be presumed that the instructions were 
 based upon it, and that there was no error,- but if the instruc- 
 tions can not be correct upon any supposable state of the evi- 
 dence this presumption will not prevail. It is held that where 
 the record shows the presence of the accused at the beginning 
 of the trial it will be presumed that he continued in court ; 3 this 
 presumption would certainly prevail where it appeared that the 
 accused had an opportunity to make, and did make, all of the 
 motions that could be of service to him. 4 It will be found, on 
 investigation, that the rule that the trial court is presumed to 
 have done its duty and conducted the proceedings legally and 
 regularly is substantially the same in criminal cases as it is 
 in civil cases. There is no valid reason why the rule should 
 be different, nor do the decided cases warrant the conclusion 
 that it is different; on the contrary, the decisions very gener- 
 ally refer to civil cases in support of the conclusions asserted. 
 The doctrine deducible from the decided cases is, it may be 
 said in a general way, that the presumption is, that there was 
 no prejudicial error, and that error must be shown affirmatively 
 by the record, or the presumption will prevail. 5 
 
 v. Weaver, 104 N. C.758, 10 S. E. Rep. v. Von, 7S Cal. x, 20 Pac. Rep. 35; 
 
 4S6; United States v. Groesbeck, 4 Territory v. Scott. 7 Mont. 407, 17 
 
 Utah, 4.87, 11 Pac. Rep. 542; Clarke v. Pac. Rep. 627; State v. Dickerson, 9S 
 State, 87 Ala. 71, 6 So. Rep. 36S; Lowe ' N. C. 70S; State v. Moore, 77 la. 449, 
 
 State, 88 Ala. 8, 7 So. Rep. 97; 42 N. W. Rep. 367; State v. Wyatt, 76 
 
 Lienpo v. State, 28 Texas App. 179, 12 la. 32S, 770, 41 X. W. Rep. 307. 
 
 S. W. Rep. 58S. 3 People v. Sing Lum, 61 Cal. 538; 
 
 'Johns v. State. 104 Ind. 557; Stew- State V. Collins, 33 La. Ann. 152; Bo- 
 art v. State, 111 Ind. 554; Gallagher v. hannon v. State. 14 Texas App. 271; 
 State, 101 Ind. 411; Holmes v. State, SS Folden v. State, 13 Neb. 32S; State v. 
 Ind. 145; Garretl v. State, 109 Ind. 527; Kline, 54 la. 1S3, 6 N. W. Rep. 184; 
 Grubb v. State, 117 Ind. 277; Hunt v. State v. Miller, 100 Mo. 606; Carper?/. 
 KeiniM r 9 S W. Rep. S03; Carson v. State, 27 Ohio St. 572. 
 State, So Ga. 170, 5 S. E. Rep. 295; Wil- 4 Avers v. State, SS Ind. 275. 
 lis v. State, 27 Neb. 98, 42 N. W. Rep. 5 Parker v. State, 78 Ind. 259; Unruh 
 
 v State. 105 Ind. 117; Wilson v. State, 
 
 1 Butler v. State, 97 Ind. 373. 378; 16 Ind. 392; French v. State, 12 Ind. 
 
 Powers v. State, S7 Ind. 144; People 670; Griffith v. State. 12 Ind. 54S; Devlo
 
 APPEALS IN CRIMINAL CASES. 253 
 
 § 292. Record must show Prejudicial Error — To entitle the de- 
 fendant to a reversal material error must be shown. To 
 show this it is essential that there should be a decision, or a 
 proper request for a decision and a refusal to decide. 1 The 
 decision or ruling should be upon a material question. Our 
 statutory provisions forbid the reversal for technical or formal 
 errors or irregularities. In one place it is enacted that the 
 court shall disregard formal errors or defects which do not 
 prejudice the substantial rights of the defendant. 2 The right 
 given to the defendant to except is confined to "a matter of 
 law by which his substantial rights are affected. " 3 These 
 statutory provisions, emphatic as they are, do little more than 
 declare the general rule established by the later decisions, al- 
 though it must be owned that many of the earlier cases gave 
 little heed to the provisions of the statute. But the later cases 
 uniformly enforce the statutory provisions. 4 It is necessary, 
 therefore, that the record should affirmatively show an excep- 
 tion to a ruling upon a matter of law affecting the substantial 
 rights of the defendant, and show, also, that the ruling was 
 prejudicial to him or was probably prejudicial to him. 5 The 
 
 v. State, 4 Ind. 200; Woolley v. State, 446; Clayton v. State, 100 Ind. 201 ; State 
 
 8 Ind. 502; Sloan v. State, 8 Ind. 312; v. Buchler, 103 Mo. 203, 15 N. W. Rep. 
 
 State v. Frazer, 28 Ind. 196. 331; Muscoe v. Commonwealth, 86 Va. 
 
 1 Keyes v. State, 122 Ind. 527; Cole- 443, 12 S. E. Rep. 790. These cases, to 
 
 man v. State, m Ind. 563; Waterman which many more might be added, are 
 
 v. State, 116 Ind. 51; Welsh v. State, sufficient to show that only substantial 
 
 126 Ind. 71. errors duly saved can be regarded, for 
 
 8 R. S., § 1 891. they illustrate many forms and phases 
 
 3 R. S., § 1845. of the subject. 
 
 * Drew v. State, 124 Ind. 9; Quaker 5 We do not mean to be understood 
 
 v. State, 120 Ind. 92; Beggs v. State, as affirming that the record must ex- 
 
 122 Ind. 54; Lefler v. State, 122 Ind. pressly state that the error was preju- 
 
 206; Kennegar v. State, 120 Ind. 176; dicial, or probably prejudicial. We in- 
 
 Cooper v. State, 120 Ind. 377; Epps v. tend to convey no such impression. 
 
 State, 102 Ind. 539; Sample v. State, The prejudicial character of the error 
 
 104 Ind. 2S9; Strong v. State, 105 Ind. may appear and, indeed, almost inva- 
 
 1; Brown v. State, 105 Ind. 3S5; Graeter riably does appear, from the character 
 
 V. State, 105 Ind. 271; Norton v. State, of the ruling itself and the circum- 
 
 106 Ind. 163; Henning v. State, 106 stances under which it was made. If 
 
 Ind. 3S6; Heyl v. State, 109 Ind. 5S9; the record so exhibits the erroneous 
 
 Wood v. State, 92 Ind. 269; Norris v. ruling as to make it appear to the ap- 
 
 State, 95 Ind. 73; Riley v. State, 95 Ind. pellate tribunal that it probably preju-
 
 254 APPELLATE PROCEDURE. 
 
 general rule that an exception is essential is, however, not ap- 
 plicable to cases where the indictment or information utterly 
 tails to charge a public offence, since, as we have elsewhere 
 .shown, if the indictment or information does not charge a pub- 
 lic offense it may be assailed in the assignment of errors for 
 the first time. 
 
 § 203. Objections must be made in the Trial Conrt — Objections 
 must be made in the trial court and the questions saved by due and 
 opportune exceptions. The groundwork for the appeal is or- 
 dinarily laid in the trial court, for, as a general rule, questions 
 not there made and saved in an appropriate method will not be 
 considered on appeal. Questions as to the jurisdiction of the 
 subject and as to the sufficiency of the indictment or informa- 
 tion may, however, be made for the first time in the assignment 
 of errors on appeal. 1 Objections must be reasonably specific 
 and certain. 2 Exceptions must be duly taken to the rulings 
 upon which error is assigned, 3 and the record must show the 
 exceptions. 4 Where a motion for new trial is necessary (as it 
 generally is) to present questions for review, it must assign the 
 proper causes, and must be reasonably definite and certain in 
 
 diced the substantial rights of the ac- erty v. State, 5 Ind. 453; Peopli 
 
 cused, there is, in contemplation of law, Barker, 60 Mich. 277, State v. Meyers, 
 
 an affirmative showing of available 99 Mo. 107, 12 S. W. Rep. 516; Gra- 
 
 error. ham v. State, 2S Texas App. 5S2, 13 S. 
 
 1 Hays v. State, 77 Ind. 450; Pattee W. Rep. 1010. 
 
 v. State. 109 Ind. 545. See, " Questions * State v. Smith, S Ind. 485; Leverich 
 
 thai may be First made on Appeal," v. State, ioq Ind. J77; Archibald v. 
 
 Chapter XXIII. State, [22 Ind. 122; Powers v. State, 87 
 
 2 Graves v. State, 121 Ind. 357; State Ind. 144; Gillooly v. State, 58 Ind. 182; 
 V. Holcombe, 41 La. Ann. 1066; People Beard v. State. 57 Ind. S; Collev V. 
 v. Beaver, S3 Cal. 419, 23 Pac. Rep. 321; Commonwealth (Kv.), 12 S. W. Rep! 
 Habel v. State, 28 Tex. App. 588, 13 S. 132; Steffy v. People, 130 111. 98, 22 \. 
 W. Rep. 1001; Stout v. State, 90 Ind. 1 ; E. Rep. 861; W ampler v. State, 28 
 Sutherlin v. State, 108 Ind. 389; Willey Texas App. t,$2, 13 S. W. Rep. 144; 
 v. State, ^,2. Ind. 421; McCorkle v. State v. Gallo, 18 Ore. 423, 23 Pac. Rep. 
 State. 14 Ind. 39; Branham v. State, 11 264; Lawrence v. Commonwealth, 86 
 Iiul. -;^\ State v. Bartlett, 9 Ind. 569; Va. 573, 10 S. E. Rep. 840; Sisson v. 
 State V. Hope, 100 Mo. 347,8 Lawyer's State, 77 Wis. 273, 45 N. \V. Rep. 1130. 
 Rep Anno. 608 and note. 5 Simons v. State, 25 Ind. 331 ; Schlicht 
 
 3 Mullinix v. State, 10 Ind. 5; Stone v. State, 56 Ind. 173. Motion must be 
 V. State, |2 Ind ) 1 \ State v. Downs, made as statute provides. Hufford v. 
 7 Ind. 283; State v. Smith, s [ n d. $5; State, 6 Ind. 365. 
 
 O'Hare v. People. 40 111. 533; Dough-
 
 APPEALS IN CRIMINAL CASES. 255 
 
 its specifications. 1 The instances we have given serve to show 
 that the rule that questions must be properly made in the trial 
 court, and there duly saved, or an appeal will be fruitless, is 
 strictly enforced. Criminal cases have generally been selected 
 by us in support of our statements, although there was little 
 necessity for confining our reference to decisions in criminal 
 cases, inasmuch as the rules governing the mode of saving and 
 presenting questions for appeal are substantially the same in 
 criminal cases as in civil actions. Upon almost every branch 
 of the subject the rules of civil procedure are referred to and 
 applied, so that the discussion of the general rules of practice 
 applies as well to the one class of cases as to the other. 
 
 § 294. The Record — The defendant must bring to the appellate 
 tribunal a record exhibiting the rulings of which he complains. 
 The rule that recitals of facts in motions can not be considered 
 as part of the record applies as well to appeals by the accused 
 as to appeals by the State. All rulings which require an ex- 
 amination of, and decisions upon, questions of fact must be ex- 
 hibited so that they can be understood, and this can not be done 
 unless the facts are properly brought into the record. 
 
 § 295. Bill of Exceptions — When necessary — As we have said 
 in speaking of the record where the State appeals, the general 
 rule is that all matters not part of the record proper, as affida- 
 vits, matters of evidence, collateral or special motions, and the 
 like, must be brought into the record by a bill of exceptions. 2 
 
 1 State v. Newkirk, So Ind. 131; Stout Waterman v. State, 116 Ind. 51; Mar- 
 
 v. State, 78 Ind. 492; Leyner v. State, shall v. State, 123 Ind. 12S; Adams v. 
 
 8 Ind. 490; Benson v. State, 119 Ind. State, 65 Ind. 565; McClary v. State, 
 
 4S8; Stout v. State, 90 Ind. 1; Stater'. 75 Ind. 260; Garber v. State, 94 Ind. 
 
 Riggs, 92 Ind. 336; State v. Lindley, 219; Rauck v. State, no Ind. 3S4; Peo- 
 
 9S Ind. 4S; Sutherlin v. State, 10S Ind. pie v. Noonan, 60 Hun. 578, 14 N. Y. 
 
 389; Nutter v. State, 9 Ind. 1 7S; Cheek Supp. 519; People v. McKenna, 58 
 
 v. State, 37 Ind. 533. See, generally, Hun. 609; Commonwealth v. Meserve 
 
 Jones v. State, n Ind. 357; Cox v. (Mass.), 27 N. E. Rep. 997. Thesecases 
 
 State, 49 Ind. 56S; Farley v. State, 127 exhibit many different phases in which 
 
 Ind. 419; State v. Kern, 127 Ind. 465; the general subject has been considered. 
 
 Nichols v. State, 127 Ind. 406; Drew;'. 2 Leverich v. State, 105 Ind. 277; 
 
 State, 124 Ind. 9; Coleman v. State, in Kleepies v. State, 106 Ind. 3S3; Lock- 
 
 Ind. 563; Grubb v. State, 117 Ind. 277; hart v. State, 92 Ind. 452; Shircliff v.
 
 256 
 
 APPELLATE PROCEDURE. 
 
 The bill must be filed within the time limited; 1 the time can 
 not be extended. 2 Facts alleged as constituting misconduct on 
 the part of counsel or jurors must be embodied in a bill of ex- 
 ceptions, and affidavits referred to in a motion are not part of 
 the record unless contained in the bill. 3 Where all the evi- 
 dence is necessary to present the questions of which a review- 
 is sought, all the evidence must be brought into the record by 
 a bill of exceptions ; if it appears that part of the evidence is 
 omitted, the questions will not be decided although the bill re- 
 cites that it contains all the evidence. 4 But we do not deem it 
 necessary to go into the authorities in detail ; it is enough for 
 our present purpose to declare that a bill of exceptions is as 
 essential to bring into the record extrinsic matters in criminal 
 cases as it is in civil cases, and to refer to another chapter 
 where the subject of bills of exceptions is fully considered. 
 
 State. 96 Ind. 369; Seibert v. State, 95 
 Ind. 471; Shular v. State, 105 Ind. 2S9; 
 Powers v. State, S7 Ind. 144; State v. 
 Cooper, 103 Ind. 75; Compton v. State, 
 89 Ind. 338; Pence v. State, no Ind. 95; 
 Taulbv v. State, 3S Ind. 437; Kennedy 
 v. State. 37 Ind. 355; Grandolpho v. 
 State, 33 Ind. 439; Lor.g v. State, 40 
 Ind. 5S2; Harman v. State, 22 Ind. 331; 
 Beard v. State, 54 Ind. 413; Mosher v. 
 State, 14 Ind. 261; Wreidl V. State, 48 
 I ml. 579. Where evidence is objected 
 to the bill must show the specific objec- 
 tions. State v. Wilson, 52 Ind. 166. 
 A motion for a new trial is part of the 
 rd proper, hut extrinsic facts con- 
 stituting the causes must be exhibited 
 in the hill. Bishop v. Welch, 54 Ind. 
 527 
 
 1 Tierce v. State. 75 Ind. 199; Colee 
 - State, 75 Ind. 5] 1 ; Bruce V. State, 87 
 Ind. 450; Calvert v. State, 91 Ind. 473; 
 Hunter v. State, mi Ind. 406; SherclitV 
 V. State, 96 Ind. 369; Marshall v. State. 
 u^ Ind. 12S, 23 N. E. Rep. 1 141. 
 
 2 Mar-hall v. State. 123 Ind. u\ 
 23 V E. Rep. 1141; Hartley r. State. 
 
 111 Ind. 358. In the case last cited 
 it was held that the time could not 
 be extended by agreement It was 
 said, "The rule to be observed in 
 making out and filing bills of excep- 
 tions in criminal causes is less elastic, 
 and has been and still is not so liberal 
 as that prescribed in civil cases." But 
 time may be given when final judgment 
 is rendered. Barnaby v. State, 106 Ind. 
 
 539- 
 
 3 Meredith v. State, 122 Ind. 514; 
 Choen v. State, 85 Ind. 209. 
 
 4 Endsley v. State, 76 Ind. 467. The 
 opinion cites Morrow v. State, 4S Ind. 
 432; Sidener v. Davis, 69 Ind. 336; 
 Kimball v. Loomis, 62 Ind. 201; Au- 
 rora, etc., Co. v. Johnson. 46 Ind. 315; 
 Columbus, etc., Co. v. Griffin, 45 Ind. 
 369; State : . President, etc.. 44 Ind. 
 350; Griffin v. Ransdell, 71 Ind. 440. 
 The case of Endsley V, State, supra, as 
 well as many other-, shows that the 
 rule is ordinarily and generally the 
 same in criminal cases as in civil ac- 
 tions.
 
 APPEALS IN CRIMINAL CASES. 257 
 
 § 296. The Bill of Exceptions— M«atters of Practice— The right 
 to a bill of exceptions is given by statute, and, as is true in 
 all instances where a statutory right is sought to be made avail- 
 able, there must be a compliance with the material provisions 
 of the statute. 1 The statute requires the bill to be presented at 
 the time of the trial, or within such time thereafter as the court 
 may allow. 2 The exceptions, however, must, as the statute 
 provides, be " taken at the time of the trial." Leave to file the 
 bill must be obtained concurrently with the final judgment or at 
 some earlier stage of the proceedings. 3 The statements of the 
 bill can not be averred against nor aided by extrinsic matters, 
 although errors may be corrected in the trial court, so that it is 
 essential that it should be full and correct. 4 
 
 § 297. Appeal does not vacate the Judgment — An appeal by the 
 defendant does not vacate the judgment of the trial court, nor 
 does it operate as a stay of proceedings in cases where the pun- 
 ishment is imprisonment, but a judgment for fine and costs may 
 be stayed. 5 The statute does not in terms provide what course 
 shall be pursued in securing a stay where there is a judgment 
 for fine and costs, but a general power to order a stay is 
 granted, and the grant of this principal power carries the inci- 
 dental and subsidiary powers essential to effectuate the 
 principal power, so that the courts may resort to the ordinary 
 methods of procedure. It seems to us that there can be no 
 doubt of the power to require a bond to secure the fine and 
 costs, and if such power exists, a bond given for the purpose 
 
 'Freeman v. People, 4 Denio, 9, 47 same in criminal cases as in civil 
 
 Am. Dec. 216, and note; 3 Whart. cases, so that the discussion of the sub- 
 
 Crim. Law, § 3050; 1 Bishop's Crim. ject in a subsequent chapter is relevant 
 
 Law, § S40. to the signing and filing of bills of ex- 
 
 2 R. S., § 1S47. ceptions in criminal cases. 
 
 3 Calvert v. State, 91 Ind. 473; Hunter 4 People v. Brennan, 79 Mich. 362, 
 v. State, 101 Ind. 406; Barnaby v. 44 N. W. Rep. 618; State v. Atkinson, 
 State, 106 Ind. 539; Pence v. State, no 33 S. C. 100 n S. E. Rep. 693. See 
 Ind. 95; Hunter v. State, 102 Ind. 428; Dolan v. State, 122 Ind. 141, 23 N. E. 
 Heath v. State, 101 Ind. 512; Bartley Rep. 761. 
 
 v. State, in Ind. 358, 12 N. E. Rep. 6 R. S., § 188S. The respite in capital 
 
 503; Marshall v. State, 123 Ind. 12S, cases must be granted by the Governor, 
 
 23 N. E. Rep. 1 141. The rules gov- as it involves the exercise of executive 
 
 erning this subject are much the power. Butler v. State, 97 Ind. 378. 
 
 17
 
 258 APPELLATE PROCEDURE. 
 
 of securing a stay is valid and effective. 1 The judgment may- 
 be reversed in whole or in part, or it may be modified so as to 
 secure a just disposition of the rights of the parties. 2 
 
 § 298. Effect of an Appeal by the State — The effect of an appeal 
 by the State is restricted and limited by statute, as well as by the 
 constitutional provision forbidding a second jeopardy. Where, 
 however, there has been no jeopardy, as, for instance, where an 
 indictment is quashed, the constitutional provision is not oper- 
 ative, but it is where there has been a trial, no matter how 
 erroneous the proceedings may have been. The appeal of the 
 State neither vacates nor stays the judgment in favor of the ac- 
 cused. The object of the judgment pronounced by the appel- 
 late tribunal, as we have elsewhere said, is to secure an au- 
 thoritative exposition of the law that will bind all inferior tribu- 
 nals, and not to secure a judgment upon the guilt or innocence 
 of the accused in a particular case. 3 The acquittal upon trial 
 ends the right to prosecute, except, perhaps, where the acquit- 
 tal was procured by such a fraud as rendered the proceedings 
 void. 4 
 
 1 The bond may, as we think, be to supply an omitted case. R. S. iSSi, 
 
 given cither in the Supreme Court or §1900. 
 
 in the trial court. The power to grant 2 R. S. 1881, § 1S92; Kennedy v. State, 
 
 an appeal implies the power to prescribe 62 Ind. 136. The general principle that 
 
 the terms of the appeal, provided, of superior appellate tribunals may so 
 
 course, the terms are such as the gen- mould their judgments" as to secure jus- 
 
 -eral principles of law authorize or the tice is discussed in the chapter on ap- 
 
 statute provides. The practice of tak- pellate jurisdiction, and in the chapter 
 
 in j bond below has been so long con- wherein the effect of a judgment on ap- 
 
 tinued that it may well be considered peal is considered. See ante, Chapter 
 
 as established, even if there were no II, and post, Chapter XXVIII. 
 
 principle fully sustaining it. Moore's 3 R. S. 1S81, § 1846; State v. Gran- 
 
 Crim. Law, § 467; Gillett's Crim. Law, ville, 45 Ohio St. 264, 12 N. E. Rep. 803. 
 
 § 1008. The civil code may be invoked * Shideler v. State (Ind.), 28 N. E. 
 
 Rep. 537-
 
 CHAPTER XVI. 
 
 THE ASSIGNMENT OF ERRORS. 
 
 § 299. The office and form of the as- § 321. 
 signment of errors. 
 
 300. The assignment of errors is the 322. 
 
 complaint of the appellee. 323. 
 
 301. The assignment of errors pre- 
 
 sents questions of law. 324. 
 
 302. Leave to amend may precede 325. 
 
 the assignment of errors. 
 
 303. Assignment of errors essential 326. 
 
 to complete jurisdiction. 
 
 304. Relief where failure to assign 327. 
 
 errors is caused by accident 
 
 or fraud. » 328. 
 
 305. Preliminary steps may precede 
 
 the assignment of error in ex- 329. 
 ceptional cases. 330. 
 
 306. Specifications of error. 
 
 307. Statutory provisions. 331. 
 
 308. Concerning the rule that the 
 
 assignment shall be specific. 
 
 309. Each specification must be com- 
 
 plete in itself. 332. 
 
 310. Appeals from the Marion Su- 333. 
 
 perior Court. 334. 
 
 311. By whom errors must be as- 335. 
 
 signed. 336. 
 
 312. Intervenors. 
 
 313. Incidental issues. 337. 
 
 314. Only injured parties can assign 338. 
 
 error. 339. 
 
 315. Parties privies may assign error. 340. 
 
 316. The assignment can not contra- 
 
 dict the record. 341, 
 
 317. A favorable ruling can not be 
 
 assigned as error. 342. 
 
 31S. Joint assignments. 343 
 
 319. Exception to the general rule. 
 
 320. Curing defects in the assign- 344 
 
 ment. 345 
 
 Correcting the assignment of 
 errors as to parties. 
 
 Naming parties. 
 
 Exceptions to the rule requiring 
 names of parties. 
 
 Groundwork of the assignment. 
 
 Distinction between resembling 
 
 classes of cases. 
 Specifications of error defective 
 because too general. 
 
 Meaning of the rule requiring 
 specific assignments. 
 
 Errors respecting jurisdiction 
 of the person. 
 
 Defective trial court process. 
 
 Application to trial court where 
 process or service is defective. 
 
 The difference between cases 
 where there is no jurisdiction 
 and cases where the notice is 
 defective. 
 
 Cases where there is no service. 
 
 Writs running beyond the term. 
 
 Judgments by default. 
 
 Failure to obey a rule to plead. 
 
 Rulings on pleadings — Gener- 
 ally. 
 
 Rulings on demurrers. 
 
 Interrogatories to parties. 
 
 Habeas corpus cases. 
 
 Identifying the ruling com- 
 plained of. 
 
 Objections to the mode of im- 
 paneling the jury. 
 
 Rulings on verdicts. 
 
 Specifications in cases of rulings 
 on verdicts. 
 
 Rulings on judgments. 
 
 Mode of objecting to judgments. 
 
 (259)
 
 260 
 
 APPELLATE PROCEDURE. 
 
 § 346. Original objections to judg- § 35°- 
 merits. 
 
 347. Causes for a new trial not as- 351. 
 
 signable as error. 
 
 348. What matters arc not assignable 352. 
 
 as reasons for a new trial. 
 
 349. What should be made independ- 353. 
 
 ent specifications of error. 
 
 Independent specifications — 
 
 When proper. 
 Specifications of the motion for 
 
 a new trial. 
 Trial where issues of law are 
 
 undecided. 
 Amendment of the assignment 
 
 of errors. 
 
 § 299. The Office and Form of the Assignment of Errors— The 
 
 office of the assignment of errors is to specifically and definitely 
 present for review by the appellate tribunal the rulings of the 
 trial court which the appealing party deems erroneous. Each 
 specification should be complete in itself, and so framed as to 
 clearly present the question of law upon which a decision is 
 sought. One point only, or, perhaps, more accurately, one 
 ruling, should be embraced in each specification. 1 It is not 
 meant by this, however, that every minor proposition should be 
 specifically assigned, for a prolix assignment of errors is neither 
 desirable nor proper. 2 Although a single specification of error 3 
 should cover only one ruling, yet that one ruling may embrace 
 many subsidiary questions, as, for instance, a specification that 
 the court erred in overruling a demurrer to a complaint may 
 present many subsidiary questions of law, or, a specification 
 that the court erred in overruling a motion for a new trial may 
 
 1 Kelley v. Bennett, 132 Pa. 218, 7 
 Lawyers' Rep. Anno. 120; Good Intent, 
 etc., Co. v. Hartzell, 22 Pa. St. 277; 
 Bull's Appeal, 24 Pa. St. 2S6; Mc- 
 Cormack v. Philips (Dak.), 34 N. W. 
 Rep. 39; Hughes v . Galveston, etc., Co., 
 >•- Tex. 595, 4 S. W. Rep. 219. 
 
 1 In the case of Philips, etc., Co. 
 v. Seymour, 91 U. S. 646, the Su- 
 pn 1 ne Court of the United States gave 
 counsel a stinging rebuke for unneces- 
 sarily multiplying the specifications of 
 errors, saying, among other things: 
 " This practice of unlimited assign- 
 ments is a perversion of the rule, de- 
 feating all its purposes, bewildering the 
 counsel of the other side, and leaving 
 
 for the court to gather from a brief, often 
 as prolix as the assignments of error, 
 which of the latter are really relied on." 
 See, also, Brewster v. Baxter, 2 Wash. 
 Ty. 135- 
 
 3 The assignment of errors under our 
 practice is a pleading composed of one 
 specification, or of several specifications, 
 and it is, therefore, conducive to per- 
 spicuity as well as to accuracy, to speak 
 of the points stated as specifications 
 rather than as assignments. In strict 
 accuracy, an assignment of error is an 
 entire pleading, although composed of 
 parts or branches, and these parts or 
 branches are specifications.
 
 THE ASSIGNMENT OF ERRORS. 261 
 
 bring forward for review many and diverse rulings concerning 
 the conduct of the trial. 
 
 § 300 The Assignment of Errors is the Complaint of the Ap- 
 pellant — The assignment of errors is, in effect, the complaint in 
 the appellate tribunal, and hence it is necessary that it should 
 be so framed that issue can be joined upon it. It is the plead- 
 ing which calls into exercise the appellate power, and without 
 it that power is not invoked. By it the case is brought into the 
 appellate court, and upon it is formed the issue, or issues, on 
 which judgment is given in all cases except those in which a 
 question outside of the record is presented in an appropriate 
 mode. In all cases where a review of previously decided 
 questions is sought, errors must be properly assigned. 1 
 
 §301. The Assignment of Errors presents Questions of Law — 
 
 The assignment of errors, with few exceptions, concedes all 
 disputed questions of fact and presents for review only ques- 
 tions of law. In a just sense the assignment does not and can 
 not in any case controvert the record, inasmuch as it assumes 
 the verity of the record and implies that error is apparent 
 thereon. 2 Even in cases where the party challenges the verdict 
 of a jury upon the evidence, or assails the finding of the trial 
 court upon a question of fact, he does not contradict the record, 
 but, on the contrary, he assumes that the record states the facts 
 correctlv and alleges that, on the facts as the record exhibits 
 them, the verdict or finding is erroneous. While it is true that 
 under our system an appellate court may be required to review 
 a decision upon a question of fact it is, nevertheless, true that 
 
 1 Hollingsworth v. State, 8 Ind. 257; Huttsi'. Hutts, 62 Ind. 214. An assign- 
 
 Riley v. Murray, 8 Ind. 354; Hender- ment of errors may be required by a 
 
 son v. Halliday, 10 Ind. 24; Deputy v. rule of court. Collins v. City of Se- 
 
 Hill, S5 Ind. 75; Williams V. Riley, SS attle, 2 Wash. Ty. 354; Parker v. 
 
 Ind. 290; Thoma v. State, S6 Ind. 1S2; Dacres, 2 Wash. Ty. 440. When thus 
 
 Hays v. Johns, 42 Ind. 505; Wiggs v. required, no question can be presented 
 
 Koontz, 43 Ind. 430; Pahmeyer t'.Grov- without it. Brown v. Hazard, 2 Wash, 
 
 erman, 60 Ind. 7; Elder v. Sidwell, 66 Ty. 464. 
 
 Ind. 316; Pruitt v. Edinburg, etc., Co., 2 Fabyan v. Russell, 39 N. H. 399; 
 
 71 Ind. 244; Snyder v. State, 124 Ind. Claggett v. Sims, 31 N. H. 22. 
 335; Calvert v. State, 91 Ind. 473;
 
 APPELLATE PROCEDURE 
 
 it reviews the decision upon the theory that the facts are prop- 
 erly and correctly stated in the record. If it is desired to 
 make an issue of fact outside of the record, or as against the 
 record, it must be done by some other pleading than the assign- 
 ment of errors. It is seldom that the appellant in the first in- 
 stance requires any other original pleading on appeal than the 
 assignment of errors ; it is, indeed, almost impossible to con- 
 ceive a case where any other pleading is required in the first 
 instance, except where some defect in the record requires 
 amendment. 
 
 § 302. Leave to amend may precede the Assignment of Errors — 
 
 It is within the power of the court to grant an appellant leave 
 to secure an amendment of the record before filing an assign- 
 ment of errors, for it seems clear that a party can not be right- 
 fully compelled to assign errors upon an imperfect record, but 
 ordinarily the assignment of errors must precede a petition to 
 amend. If, therefore, an appellant believes the record to be 
 radically imperfect he can, upon the proper petition and notice 
 seasonably filed and issued, secure an amendment before 
 assigning errors.' He must, however, file such a transcript as 
 he can obtain, since it is incumbent upon him to get the case 
 into the appellate tribunal if it is in his power to do so. As it 
 is his duty to present a complete and perfect record, he must 
 make a clear showing to entitle him to a writ commanding the 
 correction of the record and he should show that the record 
 can not be corrected without the assistance of the appellate 
 tribunal, nor can he obtain leave to have the record amended 
 before assigning error without clearly showing that his case is 
 a well defined and clearly marked exception to the settled gen- 
 eral rule. It is, therefore, safest to first assign errors. 
 
 § 303. Assignment of Errors essential to Complete Jurisdiction 
 
 — As the complaint of a plaintiff is essential to confer com- 
 
 1 It is, however, to be remembered the record exhibits it. If an omission 
 
 changes in the record as it \v;is is to lie supplied, or a defect remedied, 
 
 made in the trial court can not be or and the omission or defect occurred in 
 
 dered on appeal; all that can be done the trial court, the application to cor- 
 
 or appeal is to make the transcript cor- rect or amend must there be made. 
 rectly show what was done below
 
 THE ASSIGNMENT OF ERRORS. 
 
 plete jurisdiction upon the trial court, and as the assignment 
 of errors is the appellant's complaint on appeal it must be true, 
 as a general rule, — although that rule is not without excep- 
 tions, — that there is no jurisdiction of the case until the assign- 
 ment of errors is properly filed. It is, therefore, correctly 
 held that it is indispensably necessary to file the assignment of 
 errors within the time designated by the statute for taking an 
 appeal. 1 The filing of the transcript alone does not give the 
 appellate tribunal full jurisdiction, nor is there a perfected ap- 
 peal until the assignment of errors is filed. 
 
 § 304. Relief where failure to assign errors is caused by Accident 
 or Fraud — It is doubtless within the general power of an appel- 
 late tribunal to relieve a party who has been prevented bv fraud, 
 or by accident, from filing the assignment of errors within the 
 time limited by law, but in the absence of a satisfactory show- 
 ing of accident or fraud no such relief will be awarded. 2 If 
 the failure to file the assignment of errors within the time lim- 
 ited by law is attributable to the fault or negligence of the ap- 
 pellant, or his counsel, the court can not permit the assignment 
 to be filed after the expiration of the time designated by law. 
 The requirement of the statute is rightlv construed to be im- 
 perative and it is only where there is an accident, or a fraud, 
 such as is cognizable under legal or equitable principles, that 
 
 1 Bacon'r.Withrow, 1 10 Ind.94; Law- upon the general questions must be 
 rence f. Wood, 122 Ind. 452, 24 N. E. deemed erroneous. In Johnson v. Steph- 
 Rep. 159; Smvthe v . Boswell, 117 Ind. enson. 104 Ind. 368, the question was 
 365; Hollingsworth v. State, 8 Ind. not considered or decided. 
 257: Henderson v. Halliday. 10 Ind 24; 2 Smvthe 7'. Boswell, 117 Ind. 365. 
 Riley i>. Murray, 8 Ind. 354; Breeding The assignment of errors being a juris- 
 v. Shinn, 11 Ind. 547; State v. Delano, dictional step, it must be taken within 
 34 Ind. 52; Crawford v. Kansas City, the time prescribed by law for taking 
 etc.. Co., 45 Kan. 474. 25 Pac. Rep. 865. the appeal. Ante, § 12S. It necessarily 
 As we have already shown the appeal results from this settled doctrine that a 
 must be fully perfected within the time party who asks leave to file the assign- 
 designated by law. Ante. § 12S. The ment of errors after the time limited by 
 question in Harshman v. Armstrong, law has expired must show either fraud 
 43 Ind. 126, was as to the notice, not as or accident to which no fault or wrong 
 to the filing of the assignment of errors, of bis contributed. 
 Many of the statements in that case
 
 264 APPELLATE PROCEDURE. 
 
 there can rightfully be any relaxation of the statutory require- 
 ment. 
 
 § 305. Preliminary steps may precede the Assignment of Errors 
 in Exceptional Cases — It has been held, and with reason, that a 
 case may be in the appellate tribunal for the purpose of obtain- 
 ing process, although no assignment of errors has been tiled. 1 
 The principle upon which this ruling rests is substantially the 
 same as that which authorizes the conclusion that a case may 
 be considered in court for the purpose of securing the correc- 
 tion of the record, although no assignment of errors has been 
 tiled. These exceptions do not, however, overthrow the gen- 
 eral rule ; they simply prove or test it. The true rule is, as we 
 believe, that there is no appeal which will authorize a judgment 
 of review unless the assignment of errors is filed within the 
 time limited by law, although there may be exceptional instances 
 in which a case may be before the court for the purpose of dis- 
 posing of preliminary or intermediate questions. 2 But even as 
 to preliminary matters the general rule that the assignment must 
 be made in order to give jurisdiction, will prevail unless the 
 case is so extraordinary as to constitute an exception. Even 
 in cases where preliminary proceedings are allowable the as- 
 signment of errors must be filed within the time prescribed, for 
 the appeal must be fully perfected within that time. 
 
 § 306. Specifications of Error — The specifications of error must 
 cover all the rulings which the appellant desires reviewed. He 
 can not, as we have seen, make any error available that is not 
 well assigned, and errors are not well assigned unless they present 
 to the appellate tribunal all the rulings upon which the appel- 
 lant seeks the judgment of the court to which he prosecutes his 
 
 1 Price v. Baker, |i [nd. 570. filed, still it is stating the rule too 
 'Judge Buskirk says: "Until such broadly to say that there is no juris- 
 an assignment is made, a case is not in diction "for any purpose whatever." 
 the Supreme Court for any purpose Bacon v. Withrow, tio Ind. 94. The 
 whatever. - ' Buskirk's Pr. m. But it author from whom we have quoted un- 
 is evidenl that this statement requires doubtedly states the general rule, but 
 some qualification, for although the he states it too broadlj', since his state- 
 general rule is that there is no juris- ment excludes all possible exceptions, 
 diction until the assignment of errors is
 
 THE ASSIGNMENT OF ERRORS. 265 
 
 appeal. 1 If, for instance, a case commenced in one court is 
 carried by a change of venue to another court, and the assign- 
 ment of errors is limited to the judgment and proceedings of the 
 court in which the action was brought, it will not bring in re- 
 view rulings in the court into which it went upon change of 
 venue. 2 
 
 § 307. Statutory Provisions — The statute provides that no 
 pleadings shall be required on appeal except " a specific assign- 
 ment of errors," 3 but it is obvious that this provision can not be 
 literally construed, for if the language were taken literally there 
 could, in no event, be more than one pleading on appeal. It 
 is clear that no such construction can be justly given the 
 statute, for it would, as every one knows, be impossible to con- 
 duct the ordinary business of an appellate court if there could 
 be no motions, petitions, pleas, or the like. The statutory pro- 
 vision can not, however, be construed as a distinct enactment 
 standing apart from all others without a violation of the settled 
 rule that a statutory provision must be considered in connection 
 with the written and unwritten laws of the country. 4 Nor can 
 it be so construed without doing violence to the familiar rule 
 that the legislative intention must be sought and enforced. 
 
 1 Winbrenner v. Brunswick, etc., Co. Hartman, 124 Ind. 1S6, 26 N. E. Rep. 
 (Iowa), 47 N. W. Rep. 1089; First Nat. 91; post, § 340. 
 
 Bank v. Wright (Iowa), 4S N. W. Rep. 3 R. S. 1SS1, § 655. 
 
 91; Waxel v. Haruman, 35 111. App. * Humphries v. Davis, 100 Ind. 274; 
 
 571; Reagan v. Copeland, 78 Texas, Robinson v. Rippey, 11 1 Ind. 112; Chi- 
 
 551, 14 S. W. Rep. 1031; Millers, cago, etc., Co. v. Summers, 113 Ind. 10; 
 
 Wade, S7 Cal. 410, 25 Pac. Rep. 487. Morrison v. Jacoby, 114 Ind. S4; Brad- 
 
 2 Indiana, etc., Co. v. McBroom, 9S lev :•. Thixton, 117 Ind. 255; Rush- 
 Ind. 167; State v. Terre Haute, etc., ville Gas Co. v. City of Rushville, 
 Co., 64 Ind. 297; Martin v. Fox, 40 121 Ind. 206. Upon this principle the 
 Mo. App. 664; St. Louis, etc., Co. v. logical and reasonable conclusion is 
 McLain (Tex.), 15 S. W. Rep. 7S9; that when the legislature creates an 
 Honeycutt v. St. Louis, etc., Co., 40 appellate tribunal it invests that tribunal, 
 Mo. App. 674; Greer v. Greer, 5S Hun. except as otherwise expressly or im- 
 251, 12 X. Y. Sup. 77S. These decisions pliedly provided, with all the incidental 
 show that the specific error relied on powers of such a tribunal, whether such 
 must be clearly designated. See, also, powers are prescribed by the written or 
 Heiney v. Garretson. 1 Ind. App. 54S, bv the unwritten law. 
 
 27 N. E. Rep. 989; Ringgenberger v.
 
 
 APPELLATE PROCEDURE. 
 
 .^ 308. Concerning the Rule that the Assignment shall be Specific 
 — The statutory requirement that the assignment of errors shall 
 be specific has been enforced in a great number of cases. 1 The 
 rule, even in the absence of a statutory provision requiring it, is 
 that errors shall be specifically assigned.- To give effective and 
 practical force to the rule requiring specific assignments of the 
 errors relied on, it is necessary that there should be distinct 
 specifications, each complete in itself, and each, as we have 
 seen, presenting for review a single ruling. This is essentially 
 what is required by one of the rules of the Supreme Court, 3 and 
 a failure to com pi v with the provisions of that rule will justify 
 the court in disregarding the assignment. 1 
 
 .^ 309. Each Specification must be Complete in itself— An assign- 
 ment of errors is, as has been elsewhere said, composed of 
 
 1 Isler v. Bland, 117 Ind. 4.57; Dur- 
 ham v. Craig, 79 Ind. 117; Blizzard v. 
 Riley, S3 Ind. 300; Bowlus v. Brier. S7 
 Ind. 391; Pennsylvania Co. v. Gallen- 
 tine, 77 Ind. 322; Daunhauer v. Hilton, 
 S2 Ind. 531; Peters v. Banta, 120 Ind. 
 410; Benson v. State. 119 Ind. 4SS, 21 
 N. E. Rep. 11; Foster v. Bringham, 99 
 Ind. 505; Lawless v. Harrington, 75 
 Ind. 379: Smith v. Ryan, 83 Ind. 152; 
 Austin v. Earhart, 8S Ind. 182; Bos- 
 well v. State, S Ind. 489; Davis v. Scott, 
 13 Ind. 506, Ruffing v. Tilton, 12 Ind. 
 259; Mdffatt v. Fisher, 47 Iowa, 473.474. 
 
 1 Dale v. Pruins (Cal.), 20 Pac. Rep. 
 296; Giltrak v. Watters, 77 la. 149, 41 N. 
 W. Rep. 600; Blum v. Whitworth, 66 
 Tex. 350, 1 S.W.Rep. 10S; Martin, etc., 
 Co. v. Wainscott, 66 Tex. 131. 1 S. W. 
 Rep. 264; Georgia Railroad Co. v. Olds, 
 77 Ga. 673; Denton v. Woods, S6 Teun. 
 37, 5 S.W. Rep. 489; Duncombe r. Pow- 
 7 - Iowa, 185, 1S9, 39 N.W. Rep. 261 ; 
 Swift v. Mulkey, 17 Oregon, 532, 2 1 Pac. 
 Rep. 871; Franz, etc., Co. v. Mielenz, 
 5 Dak. Tv. 136. 37 N. \V. Rep. 728; 
 Topeka, etc., Co. v. Martin, 39 Kan. 
 750; Harvie v. Carmack, 6 Dana Ky. , 
 2\2. 24^: Hoi man v. Herschser (Tex.), 
 VV. Rep. 984. 
 
 3 Supreme Court Rule III. 
 
 * A disregard of a ride of the court, 
 or of the law, requiring errors to be 
 specified in a designated mode will 
 justify a dismissal of the appeal. 1 )< itsch 
 v. United States, 15 Wall. 539. Or the 
 court may affirm the judgment. Ryan 
 V. Koch, 17 Wall. 19; Maxwell :. 
 Stewart, 21 Wall. 71; Treat v. Jamison, 
 20 Wall. 652. The usual practice in 
 this State is to dismiss the appeal. 
 Vaughan v. Ferrall, 50 Ind. 221; Hawk- 
 ins v. McDougal, 126 Ind. 539, 25 N. 
 E. Rep. 70S; Thomas v. Service. 90 
 Ind. 12S. The same practice obtains in 
 other States. Freeman v. Rhodes. 36 
 Minn. 297, 30 N. W. Rep. S91; State v. 
 Stewart, 6S Wis. 234, 32 N.W. Rep. 1 10; 
 State v. Whitten, 21, Mo. App. 459. 
 But the court may affirm the judgment. 
 Apple v. Atkinson. 34 Ind. 518: Rush- 
 feldt v. Shave. 37 Minn. 2S2, 33 N. 
 W. Rep. 791; International, etc., Co. v. 
 Underwood. 67 Tex. 589, 4 S. W. Rep. 
 2l6; Savage V. Mare-eh, 3 Wash. Tv. 
 259, 21 Pac. Rep. 380; Territory v. 
 Langford, 3 Wash. Ty. 279, 21 Pac. 
 Rep. 3S6; Frazier v. Venon, 3 Wash. 
 Ty.392, 17 Pac. Rep. 885.
 
 THE ASSIGNMENT OF ERRORS. 
 
 267 
 
 specifications, and is in its nature closely analogous to a com- 
 plaint or declaration, 1 and the same reasoning which leads to 
 the conclusion that each paragraph of a complaint comprised 
 of several paragraphs must be good in itself, requires that it be 
 held that each specification in an assignment of errors should 
 be sufficient in itself. If an assignment of errors is substantially 
 a complaint, then, it is evident that each specification, like each 
 paragraph of a complaint, must be complete in itself, 2 for one 
 specification can not be aided by another, or by others, and so it is 
 held. 3 It is, therefore, necessary that each specification, un- 
 aided by any other, shall state at least one point upon which a 
 ruling of the trial court can be reviewed. The court will not 
 undertake to combine the different specifications, and, bv a 
 combination, produce a valid assignment, since to do so would 
 be to violate the fundamental rules of pleading, 4 nor would it 
 be just to the appellee for the court to do work for the appellant 
 by constructing for him a proper pleading in the form of an 
 assignment of errors. 
 
 1 Associates of The Jersey Company 
 v. Davison, 5 Dutch (N.J.),4i5; Free- 
 born v. Denman, 2 Hals. (N. J.) 190; 
 Moody T.Yreeland, 7 Wend. 55; Clarke 
 r. Bell, 2 Litt. (Ky.) 162; Fitch v. Loth- 
 rop, 2 Root (Conn.), 524. In the case 
 first named the court said : " The assign- 
 ment of errors is a pleading filed by the 
 party complaining of the errors of the 
 judge, and each assignment should be 
 single and not multifarious." In sup- 
 port of this statement these cases were 
 cited: Oliver v. Phelps, Spencer, 180, 
 1S3; Coxe v. Field, 1 Green' (N. J.), 
 215, 21S; Williams v. Shepherd, 1 
 Green, 76, 78; Ludlam v. Broderick, 3 
 Green. 269, 275. 
 
 2 The specification must, as is else- 
 where more fully shown, describe and 
 designate the ruling of which a revision 
 is sought. It will not do to specify one 
 ruling and argue questions arising upon 
 another ruling. Dye v. State (Ind.), 
 (Oct. 15, ' 9 0. 
 
 5 Trammel v. Chipman. 74 Ind. 474. 
 Lake v. Lake, 99 Ind. 339. 
 
 4 In the case of Trammel v. Chipman. 
 supra, the cases of Higgins v. Kendall, 
 73 Ind. 522, and McCallister v. Mount. 
 73 Ind. 559, were cited and the court 
 said: ''A number of defective assign- 
 ments can not be combined to consti- 
 tute a good one, any more than several 
 insufficient paragraphs of a complaint 
 can be deemed to make a good com- 
 plaint. The assignment of errors is. in 
 effect, the appellant's complaint in this 
 court, and, like the paragraphs of the 
 complaint, each separate specification 
 must in itself state a sufficient cause for 
 reversing the judgment." This rule 
 leads logically to the conclusion often 
 declared, that where there is one good 
 paragraph of a complaint an assign- 
 ment of errors challenging the sufficien- 
 cy of the pleading for the first time on 
 appeal is unavailing. Ashton V. Shep- 
 herd, 120 Ind. 69.
 
 268 APPELLATE PROCEDURE. 
 
 § 310. Appeals from the Marion Superior Court — The practice in 
 appeals from the Marion Superior Court is a peculiar one, and 
 it mav well be doubted whether the decisions which created it 
 are well supported, but the practice is now too firmly settled to 
 justify a change by judicial decisions. The rule is, that 
 errors must be specified upon the ruling of the general term in 
 affirming or reversing, as the case may be, the judgment of the 
 special term. 1 It is not easy to reconcile this ruling with the 
 fundamental doctrine that errors must be specifically assigned, 
 but as the errors must be specified in the assignment of errors 
 tiled in the general term there is no great practical harm done 
 in holding that the general statement in the assignment made 
 in the Supreme Court is sufficient. While the specification 
 must be based upon the ruling of the general term in affirming 
 or reversing, as the case may be, the judgment of the special 
 term, it is, nevertheless, true that only such questions as were 
 appropriately presented at special term can be considered on 
 appeal. 2 The appeal must, with rare exceptions, be taken from 
 the general term and can not be taken directly from the special 
 term.' 5 The errors must be well assigned in the general term 
 or no question will be presented on appeal. 4 The record, in 
 
 1 Wesley v. Milford, 41 Ind. 413; 2 Sclking v. Jones, 52 Ind. 409; Huff- 
 
 Farman v. Ratcliff, 42 Ind. 537; Wil- man v. Indiana Nat. Bank, 51 Ind. 394; 
 
 son v. Harrison, 44 Ind. 468; Van Dn- Russell v. Harrison, 49 Ind. 97; Thurs- 
 
 sen :. Kendleburger, 44 Ind. 282; John- ton v. Boardman, 48 Ind. 426; Bush v. 
 
 son v. Kohl, 55 Ind. 454; Cline v. Love, Grover, etc., Co., 4S Ind. 258; Car- 
 
 47 Ind. 258; Munson v. Lock, 48 Ind. penter v. Sigler, 47 Ind. 202. An ap- 
 
 ti6; Heshion v. Scott, 94 Ind. 570; peal will lie from a reversal of the judg- 
 
 Kirland v. Stumph, 73 Ind. 514; Deitch ment of the special term. Dubois v. 
 
 Demott, S9 Ind. 601; Hereth v, Hereth, Johnson, 81 Ind. 520. 
 
 100 Ind. 35; Patterson v. Scottish, etc., 3 McNeely v. Holliday, 105 Ind. 324; 
 
 Co., 107 Ind. 497; Rotach v. McCarty, Gutperle v. Koehler, S4 Ind. 237; Wil- 
 
 102 Ind. 461; Beineke v. Wurgler, 77 son v. Vance, 55 Ind. 394. 
 
 Ind. 468; Leary v. Smith, 81 Ind. 90. * Smith*'. Harris, 76 Ind. 104; Cleave- 
 
 The practice in appeals from the Mar- land v. Vajen, 76 Ind. 146. Only such 
 
 ion Superior Court is so peculiar that errors as are well assigned in general 
 
 Li is difficult to determine where to term will be considered on appeal. Mc- 
 
 treat the subject, but we have concluded, Laughlin v. Child, 62 Ind. 412; State v. 
 
 not without hesitation, that, as the prac- Terre 1 1 ante, etc., Co., 04 Ind. 297; In- 
 
 tice prevailing in such cases forms an dianapolis, etc., R. Co. v. Negley, 62 
 
 exception to the rule that errors must Ind. 17S; "Miller v. State, 6 1 Ind. 503. 
 be specifically assigned, the subject may 
 be treated here as well as elsewhere.
 
 THE ASSIGNMENT OF ERRORS. 269 
 
 case of a reversal by the general term, must be so made up as 
 to show the rulings upon which the judgment at special term 
 was reversed. 1 Where the errors are well assigned in general 
 term and the specifications rest upon rulings to which objections 
 at special term were properly made and exceptions duly taken, 
 the questions will be presented on appeal by a general assign- 
 ment that the general term erred in affirming or reversing, as 
 the case may be, the judgment of the special term. 2 An ex- 
 ception to the judgment in general term need not be entered. 3 
 The rules governing the assignment of errors in the Supreme 
 Court apply, with few exceptions, to the assignment of errors 
 in the general term of the Superior Court. 4 
 
 §311. By whom Errors must be Assigned — The proper party, 
 must assign error or the assignment will be unavailing. Thus, 
 where a judgment was rendered against a township it was held 
 that an assignment of errors by the trustee was of no avail and 
 that the appeal must be dismissed. 5 One party can not assign 
 error for another unless there is a joint interest. 6 The doctrine 
 illustrated in the cases referred to rests on solid ground, for 
 where there is no judgment against a party he has nothing to 
 submit for review to the appellate tribunal. While there can 
 be no doubt as to the soundness of the general doctrine there 
 
 1 Hanna v. Aebker, 84 Ind. 411; Gut- 72, iS N. E. Rep. 275; Goodwin -\ Fox, 
 perle v. Koehler, 84 Ind. 237; McWhin- 129 U. S. 601, 32 Law. Ed. S05; Powell 
 ney v. Briggs, 85 Ind. 535. v. Sturdevant, 85 Ala. 243, 4 So. Rep. 
 
 2 Alexander v. The Northwestern, 71S; Tripp v. Duane, 74 Cal.85, 15 Pac. 
 etc., University, 57 Ind. 466; Indianap- Rep. 439. See, generally, Smoot v. 
 olis, etc., Co. v. Cincinnati, etc., R. Co., Boyd, 87 Ky. 642.9 S. W. Rep. 829; 
 45 Ind. 281; Carney v. Street, 41 Ind. Ahern v. McGeary, 79 Cal. 44, 21 Pac. 
 396; Wesley v. Milford, 41 Ind. 413. Rep. 540; Elkin r.Gregor, 30 S. C.422, 
 
 3 Linsman v. Huggins, 44 Ind. 474. 9 S. E. Rep. 335; Hiel v. Hiel, 40 Kan. 
 
 4 Bartholomew v. Preston, 46 Ind. 69, 19 Pac. Rep. 340; Martin v. Kanouse, 
 2S6; Patterson v. The Indianapolis, 2 Abbott Pr. 390; O'Brien v. Brown- 
 etc, Co., 56 Ind. 20. A joint assign- ing, 49 How. Pr. 109, 113; Tracey v. First 
 ment of errors in general terms must, National Bank of Selma, 37 N. Y. 523, 
 as a general rule, be good as to all who People v. Lynch, 54 N.Y.681. In Grant 
 join in it or it will be good as to none. v. Hubbell, 2 Jones & S. (N. Y.) 224. it 
 Hadley v. Milligan, 100 Ind. 49. was held that a party can not complain 
 
 5 Mcllwaine v. Adams, 46 Ind. 580. of an order made before he came into 
 
 6 Brown v. Miner, 128 111. 14s, 21 N. E. court, but this doctrine, as we suppose, 
 Rep. 223; Paulsen v. Manske, 126 111. must be taken with some qualification.
 
 270 APPELLATE PROCEDURE. 
 
 may be some difficulty in giving it practical effect, inasmuch as 
 it may in some instances be difficult to determine whether a 
 judgment so far affects the interest of a party as to entitle him 
 to have it reviewed. Instances of the kind indicated are, how- 
 ever, so very rare that they do not impugn the correctness of 
 the general statement that it is only the parties against whom 
 a judgment is rendered that can rightfully assign error, but 
 there may be cases where the general rule can not be applied 
 in all its strictness. 1 
 
 § 312 Iutervenors — Persons who become interested in a con- 
 troversy, although not strictly parties to the original action, or 
 suit, may, in some exceptional instances, become intervenors, 
 and, as such, appeal and assign error. Thus, a creditor who 
 has appeared in a creditor's action may assign error upon a rul- 
 ing denying him a distributive share of the funds in the hands 
 of the court. 2 So, as it has been held, an attorney who has 
 been denied fees due him, and for which he is entitled to a 
 lien, may assign error upon an order refusing an allowance. 3 
 In a New York case the doctrine that a person interested in a 
 controversy may appeal, has been applied to the case of a 
 surety on an injunction bond, but this is a very doubtful decision. 4 
 It may be well to say, to prevent misunderstanding, that where 
 a party obtains a partial judgment, but not all that he is entitled 
 to, the general rule will not operate to prevent him from as- 
 signing errors, provided, of course, he has taken the proper 
 steps in the lower court. 
 
 § 313. Incidental Issues — In the exceptional class of cases 
 mentioned in the preceding paragraph the collateral issue (col- 
 lateral in the sense of being incident to and connected with the 
 general controversy, although not an integral part of it) must, 
 of course, be presented to the trial court for decision in some 
 
 1 Hobart v. Hobart, S6 N. Y. 636; s McKenzie v. Rhodes, 13 Abbott's 
 Louden v. Louden, 65 How. 411 ; Mc- Pr. R. 337; Louden v. Louden, 65 
 Kenzie v. Rhodes, 13 Abbott's Pr. R. How. Pr. R. 411. 
 
 337; Attorney Gen. v. North Am. Life * Hotchkiss v. Piatt, 7 Hun. 56, 2 
 Ins. Co., 77 N. Y. 297, 6 Abb. (N. C.) Tidd's Pr. 1135; Sholty v. Mclntyre 
 
 (111.) 28 N. E. Rep. 42. 
 
 2 Anonymous, iS Abb. Pr. 87. See 
 ante, § 137.
 
 THE ASSIGNMENT OF ERRORS. 271 
 
 appropriate mode, for the higher court can not take up the rul- 
 ings on the collateral issues as an independent controversy ; 
 on the contrary it can not with propriety, or with right, adju- 
 dicate upon any questions save the rare ones which may be 
 made on appeal for the first time, except those presented for 
 decision in the court below. It is always necessary, therefore, 
 to present these incidental questions to the trial court for de- 
 cision and, on appeal, to assign as error the decisions on such 
 questions, or, in the proper case, the refusal to make a decision. 
 This conclusion results from the settled general principle that 
 an appellate tribunal reviews decisions but does not, as a rule, 
 decide original questions. 1 
 
 § 314. Only Injured Parties can Assign Error — Errors can be 
 assigned only by persons injuriously affected by the rulings 
 upon which they assume to allege error. 2 This is, indeed, im- 
 plied in what has already been said, but it may not be unprofit- 
 able to carry the implication into a full and express statement. 
 It is not the duty of an appellate tribunal, nor, indeed, is it the 
 right of such a tribunal, to entertain objections from one who 
 has suffered no injury from the rulings or proceedings of which 
 he assumes to make complaint. This rule is a very general 
 one and its sweep is very wide. It is not changed or affected 
 by the fact that the person who assumes the right to assign 
 error was a party to a suit or action in which rulings were made 
 that worked harm or prejudice to the rights of other parties. 3 
 
 § 315. Parties Privies may assign error — Authorities may be 
 found in the text-books and the reports asserting that writs of 
 
 1 Raymond v. Butterworth. 139 Mass. con's Abr. 129; 1 Rob. Abr. 748; Claw- 
 
 471; Wiley v. Lovely, 46 Mich. 83; son v. Chicago, etc., R. Co., 95 Ind. 152. 
 
 Coleman v. Dobbins, 8 Ind. 156; Shan- See, also, Hamilton v. Barricklow, 96 
 
 non v. Spencer, 1 Blackf. 120; Brown- Ind. 39S; Mason v. Mason, 102 Ind. 3S. 
 
 lee v. Hare, 64 Ind. 311; National Bank, 3 Chicago v. Cameron, 120111.447,451; 
 
 etc., v. Dunn, 106 Ind. no; Byington v. Gage v. Reid, 11S 111. 35; Ransom v. 
 
 Comm'rs, 37 Kan. 654, 16 Pa. Rep. 105; Henderson, 114 111. 528, 531; Beal v. 
 
 Wetmore v. Plant, 5 Conn. 541. See, Harrington, 116 111. 113, 119; Farnan v. 
 
 also, Moore f. Harland, 107 Ind. 474. Borders, 119 111. 22S, 230; Cool v. 
 
 1 Berghoff v. McDonald, 87 Ind. 549; Peters, etc., Co., S7 Ind. 531. See, also, 
 
 Wiley v. Coovert, 127 Ind. 559; 2 Ba- Dawson v. Wilson, 79 Ind. 4S5.
 
 272 APPELLATE PROCEDURE. 
 
 error may be sued out by persons who are privies to the record, 
 and this general common law rule has been applied to a variety 
 of cases. 1 It would seem to follow from this rule of the common 
 law that privies to the record may appeal and assign error, and 
 there can be little doubt that where the record brought up 
 by the appeal shows the privity, this rule should be enforced 
 under our statute or similar ones. But the difficulty lies in ap- 
 plying the common law rule to a case where the record brought 
 before the appellate tribunal does not disclose the privity. It is 
 generally true that a party can not establish his right to assign 
 error by offering evidence of matters not apparent of record, 
 but there are exceptions to the general rule, as, for instance, 
 the familiar cases where the death of one of the parties 
 makes it necessary to admit his representative, but in such 
 cases there is no addition to the record proper, nor any contra- 
 diction. All that is done in such cases is to supply parties. 
 There are cases where one of the original parties transfers his 
 interest, or where it passes from him by operation of law in 
 which the person who succeeds to that interest may, upon proper 
 application, be permitted to assign errors and prosecute the ap- 
 peal. Where, however, the party can enter the case in the 
 trial court it is his duty to do so, otherwise he is in no situation 
 to assert a right to assign errors. If he is not a party to the 
 judgment or the privy of a party he is not bound by it and can 
 not be prejudiced, so that there is really no ruling working him 
 harm, and if he is not prejudiced there is no reason why he 
 should be allowed to contest the validity of the judgment. 
 
 § 316. The Assignment can not contradict the Record — A person 
 not appearing of record to be a party to the suit or action can 
 not appeal or assign error where his claim involves a contra- 
 diction of the record. If a right of appeal claimed by a party 
 
 1 City of Pcnsacola v. Reese, 20 Fla. v. Davis, 1 Ga. 495; Dupree v. Perry. 18 
 
 L37; Townsend 7'. Davis, 1 Ga. 495; Ala. 34; Harrington :•. Roberts. 7 Ga. 
 
 Watson v. Willard, 9 Pa. St. S9; 510; Huner v. Reeves, 2 Green (Iowa), 
 
 Campbell v. Kent, 3 P. & W. 72; God- 190; Bayard v. Lombard, 9 How. (U. 
 
 frey's Case, 11 Co. R. 45; Randall's S.). 530; Thomas v. Wyatt, 9 S. & M. 
 
 2 Mod. R. 308; Green v. Watkins, 308; 2 Bacon's Abridg. 195; ante, §§ 137, 
 
 6 Wheat.260. See, generally ,Townsend 312.
 
 TIIK ASSIGNMENT OF ERRORS. 273 
 
 is asserted upon matters contravening the record he can not 
 succeed. This conclusion must result, or else it must be con- 
 ceded that the record may be contradicted on appeal, and this, 
 it is well agreed, can not be done. 1 Errors, as we have here- 
 tofore said, in substance, must be assigned upon the record, 
 tried by the record and determined by the record. 2 A party 
 can not make good his right to assign errors bv alleging mat- 
 ters supplying deficiencies or changing the record made in the 
 trial court. 3 He may, of course, have the transcript truly ex- 
 hibit the rulings and proceedings of the trial court, but he can 
 not ask the appellate tribunal to add to or subtract from such 
 rulings or proceedings, although he may, in some instances, 
 show matters that have occurred since the record was made. 
 
 § 317. A favorable Ruling can not be assigned as error — Em- 
 braced within the scope of the general principle that only the 
 parties who are injured by the rulings of the trial court can as- 
 sign errors, is the subsidiary rule that a party can not complain 
 of an erroneous ruling in his favor. 4 This seems so clear that 
 it is singular that parties favored by a ruling should complain, 
 and yet the adjudged cases show that complaint has been otten 
 made by such parties, but always without avail. Closely allied 
 to the rule just stated is that which denies a party the right to 
 make an erroneous ruling available which his own request pro- 
 cured or which was made at his instance. 5 It is so manifest 
 that it would be subversive of principle to permit a party to se- 
 cure an erroneous ruling and then make it the ground for an 
 
 'Cook v. Conway, 3 Dana (Kv.), John v. Clayton, 1 Blackf. 54; President 
 
 454; Shirly v. Lunenburgh, 11 Mass. of State Bank v. State, 1 Blackf. 267; 
 
 379; Brown v. Caldwell, 10 Serg. cV R. Barker-'. Hobbs, 6Ind. 3S5; Robertson 
 
 (Pa.) 114; Clemson v. State Bank, 1 v. Caldwell, 9 Ind. 514; Hunter v. 
 
 Scam. (111.) 45. Leavitt, 36 Ind. 141. 
 
 2 Kline v. Kline, 49 Mich. 419; Bing- 5 Calumet Iron, etc., Co. v. Martin, 
 ham v. Cabbott, 3 Dall. (U. S.) 19; 115 111. 358. Upon the same principle 
 Beach v. Packard, 10 Vt. 96. it is held that a party can not success- 
 
 3 Barndollar v. Cotton, 5 Col. 29; fully object to a judgment upon the 
 Wishmier v. State, no Ind. 523; ground that his own pleading is de- 
 Thames Loan, etc., Co. v. Beville, 100 fective. Henderson v. Barbee, 6 Blackf. 
 Ind. 309. 26. 
 
 4 Bethell v. Mathews, 13 Wall. 1; 
 
 18
 
 274 APPELLATE PROCEDURE. 
 
 assault upon the judgment of the trial court, that it is hardly 
 worth the while to cite authorities. 
 
 § 318. Joint Assignments — Where several parties unite in one 
 assignment of errors they will encounter defeat unless the as- 
 signment is good as to all. If the errors affect the parties sev- 
 erally and not jointly the proper practice is for each party to 
 assign errors, for the rule is well settled that a joint assignment 
 will not permit one of several parties to avail himself of errors 
 alleged upon rulings which affect him alone and not those with 
 whom he unites in the assignment. The rule that a joint as- 
 signment of errors must be good as to all who unite in it is in 
 harmony with the general principle of pleading which requires 
 a demurrer, an answer, or a motion, to be good as to all who 
 join in it. 1 
 
 § 319. Exception to the general Rule — To the rule that a joint 
 assignment of errors must be good as to all who unite in it there 
 is one well defined exception and that is this : where husband 
 and wife are parties an assignment will be good as to both if it 
 is good as to the wife. 2 This doctrine trenches upon the gen- 
 eral rule and grows out of the peculiar relation of husband and 
 wife, for, the old theory that the baron and Jane constitute in 
 law one person has not been entirely overthrown, notwithstand- 
 ing the radical changes made by our statute. 3 It is evident, 
 
 1 Wall v. Bagby, 126 Ind. 372, 2f> N. Ind. 42; Walls v. Baird, 91 Ind. 429; 
 
 ,E. Rep. 60; Hawkins -'. Heinzman, 126 Williams v. Riley. S8 Ind. 290; Towell 
 
 Ind. 600. 2^ N. E. Rep. 70S; Arbuckle v. Hollweg, Si Ind. 154; Teter v. Hin- 
 
 v. Swim, i23lnd.2oS; Powers :•. Town ders, 19 Ind. 93; Estep v. Burke, 19 Ind. 
 
 of New Haven, 120 Ind. 1S5; Sparklin S7; Kimbrell v. Rodgers, 90 Ala. 339, 7 
 
 v. St. James Church, 119 Ind. 535; Or- So. Rep. 241. 
 
 ton t'.Tilden. no Ind. 131, 10N.E. Rep. 2 Stewart v. Babbs, i2oInd.56S. This 
 
 936; Hochstedler -'. Hochstedler, 10S decision proceeds substantially upon the 
 
 Ind. 506, 9 N. E. Rep. 467; Tucker v. same ground on which rests the rule 
 
 Conrad, 103 Ind. 349: Hinkle v. Shel- that a husband may unite in an action 
 
 ley, 100 Ind. SS; Walker v. Hill, 111 with his wife although the cause of ac- 
 
 Ind. 223. 12 N. E. Rep. 3S7; Rogers v. tion is in her. 
 
 Union, etc., Co., m Ind. 343, S. C. 60 3 Barnett v.. Harshbarger, 105 Ind. 
 
 Am. Rep. 701; Lake v. Lake. 99 Ind. 410; Johnson v. Jouchert. 124 Ind. 105, 
 
 339; Robbins v. Magee, 96 Ind. 174; 107. See, generally, Harrell v. Harrell, 
 
 : -. Pfeifer, 95 End. 599; Quick v. 117 Ind. 94; Preston -•. Fryer, 38 Md. 
 
 Brenner, 101 Ind. 230; Durham ■y.Craig, 221; Gebb v. Rose, 40 Md.87; Jenne v. 
 
 79 Ind. 117; Becknell v. Becknell, no Marble, 37 Mich. 319.
 
 THE ASSIGNMENT OK ERRORS. 275 
 
 therefore, that the doctrine can prevail only to a limited extent 
 and that it can not be extended. It forms an exception to a 
 very general and necessary rule of practice and is not to be 
 carried beyond the reason which gives it vitality. 
 
 § 320. Caring Defects in the Assignment — It has been held that 
 where a joint assignment is made which is not good as to all 
 who join in it, the infirmity is cured if the parties for whom no 
 error is alleged decline to join in the appeal. 1 No authorities 
 are adduced in support of this conclusion nor are any reasons 
 given. The ruling may, however, be upheld upon the ground 
 that an assignment of errors may be amended, and that the 
 refusal of the parties as to whom the assignment was bad to 
 join in the appeal operated substantially as an amendment. It 
 may also be said, in support of the decision, that it tends to 
 promote justice without disturbing to any injurious extent the 
 harmony of the system of appellate procedure. When the par- 
 ties refused to join in the appeal they ceased to be appellants, 
 leaving in court only those as to whom errors were well as- 
 signed, so that, in fact, there was no joint assignment good 
 only as to part of those by whom it was made. 
 
 § 321. Correcting the Assignment of Errors as to Parties — Where 
 the appellants discover that their assignment of errors is not 
 good because as to some who join in it errors are not well as- 
 signed, they may, under the decision to which we have referred, 
 cure the infirmity by securing a refusal to join in the appeal 
 from those with whom they erroneously united, but a refusal 
 not secured before the case is taken up for consideration by the 
 court would probably be unavailing. Promptness is required 
 in kindred cases, and there is no reason why it should not be 
 exacted in such cases as those under immediate mention. It 
 would, at all events, be too late to attempt to heal the infirmity 
 after a decision has been announced. 2 It is hardly necessary to 
 
 1 Cooper v. Hayes, 96 Ind.386, 390. The reasoning of the court in support 
 
 2 State v. Terre Haute, etc., Co., 64 of the proposition that it has no discre- 
 Ind. 297. In this case the court, not- tion but must affirm the judgment is far 
 withstanding the strong showing made, from satisfactory, and certainly it is 
 refused to change the judgment of af- unsupported by authority. 
 
 firmance to one dismissing the appeal.
 
 276 
 
 APPELLATE PROCEDURE. 
 
 suggest that the safe course, and the lawyer-like course, is to 
 assign errors as the rule requires in the first instance, for a party 
 w ho disregards settled rules is not in a situation to demand very 
 much as a matter of right, but he must obtain relief, if he ob- 
 tains it at all, rather as a matter of grace than as a matter ot 
 right. 
 
 § 322. Naming Parties — The rule that the names of the parties 
 must be stated in the assignment of errors has been uniformly 
 and strictly enforced. 1 There is reason for this strictness. It 
 tends to systematize the procedure, it compels the identification 
 of parties and thus enables process to be issued against the proper 
 persons. The rule is required by consistency, for a complaint 
 in an appellate court, quite as much as a complaint, bill or dec- 
 laration in the trial court, can not be complete without naming 
 the parties to the suit or action. 
 
 § 323. Exceptions to the Rule requiring names of Parties — An ap- 
 parent exception to the rule requiring an assignment of errors 
 to give the names of all the parties is created by a case holding 
 that where a person is made a party to the action in the trial 
 court it is not necessary to name him in the assignment of errors 
 where it appears that he was not served with process in the 
 trial court. 2 The exception is apparent rather than real, for if 
 
 1 Snyder v. State, 124 Ind. 335; Bra- 
 den v. Leibenguth, 120 Ind. 336, 25 N. 
 E. Rep. S99; Thoma v. State. 86 Ind. 
 182; Todd v. Wood, 80 Ind. 429; Lou- 
 isville, etc., Co. v. Head, 71 Ind. [76; 
 Kiley v. Perrin,6g Ind. 387; Darnall v. 
 Hurt, 55 Ind. 275; Lang v. Cox, 35 Ind. 
 470; Green River, etc., Co. ;. Mar- 
 shall, 42 Ind. 470: State v. Irish. 42 
 Ind. 506; Burke v. State, 47 Ind. 528; 
 Peden v. Noland, 45 Ind. 354; State 
 v. Delano, 34 Ind. 52; Brookover :. 
 Forst, 31 Ind. 255; VanCleve v. 
 Boler, 34 Ind. 538; Wickham v. 
 Hess, 38 Ind. 1S3; Thomas v. Serv- 
 ice, 90 Ind. 12S. See Supreme Court. 
 Rule VI. It is held by the Supreme 
 Court of the United States that where 
 
 error is assigned by a party in a repre- 
 senative capacity the assignment should 
 show that he has a right to prosecute 
 an appeal in that capacity. Green -■. 
 Watkins, 6 Wheat. 200. This rule was 
 approved and enforced in Rundles : . 
 Jones, 3 Ind. 35, but we do not believe 
 that it is applicable to our presenl sys- 
 tem of procedure. In Taplev v. McGee, 
 6 Ind. 56, it was held that the question 
 was waived by a joinder in error. We 
 incline, however, to the opinion that 
 the objection must be made by a proper 
 denial of capacity and that it is waived 
 by inaction as well as by a joinder in 
 error in the usual form. 
 
 2 Wilstach v. Heyd, 122 Ind. 574. 
 This case, it may he remarked, supplies
 
 THE ASSIGNMENT OF ERRORS. 277 
 
 there was no service at all, the party was not before the lower 
 court, and it is clear that it can not be required of the appellant 
 that he should bring before the appellate tribunal a person who 
 was not a party to the action in the lower court. While it is 
 the duty of the appellant to name all who were parties to the 
 judgment in a just sense, it is not necessary for him to name 
 those who were simply named in the complaint but who were 
 never in court. 
 
 § 324. Groundwork of the Assignment — In by far the greater 
 number of cases the groundwork for the assignment of errors 
 must be laid in the trial court by the objections and exceptions 
 there presented, and if it is not properly constructed no valid 
 assignment of errors can be founded upon it. Many cases 
 correctly affirm that there is no valid specification of error, but 
 give an insufficient reason, or, rather, an irrelevant one, for the 
 conclusion asserted. Thus, it is often said that a specification 
 that the "judgment should have been for the defendant instead 
 of for the plaintiff," 1 is bad for the reason that it is too general ; 
 whereas, the true reason, or, at all events, the chief and influen- 
 tial reason, why it is bad, is because the proper specifications 
 were not made in the trial court ; in other words, the ground- 
 work was not properlv laid. It is, beyond doubt, correct to 
 say, as is frequently done, that a general assignment of errors 
 is bad, 2 but it is not correct to say that the assignment is bad 
 because it is too general in a case where it is bad for the reason 
 
 an illustration of the rule that parties Whitney ?'• Lehmer, 26 Ind. 503; State 
 must adhere to the theories upon which v. Harper, 38 Ind. 13; Holmes v. Phe- 
 they proceed in the trial court. It was nix, etc., Co., 49 Ind. 356; Fall v. Hazel- 
 there said: "It is well settled by the rigg. 45 Ind. 576; Sanxay v. Hunger- 
 decisions of this court that a pleading ford, 42 Ind. 44. 
 
 must proceed upon some definite theory, 2 Indianapolis, etc., Co. v. Doty, 7 
 
 and if not good upon that theory is not Ind. 580; Davis v. Scott, 13 Ind. 506; 
 
 good at all. This is a very salutary and Amick v. O'Hara. 6 Blackf. 25S, King 
 
 just rule, and should be especially ad- v. Wilkins, 10 Ind. 216; Boswell v. 
 
 hered to by the appellate court." State, S Ind. 499. There are. of course, 
 
 1 Ruffing z/.Tilton, 12 Ind. 259; Ham- many cases where the reason that an 
 
 rick v. Danville, etc.. Co.. 41 Ind. 170: assignment of errors is bad is because 
 
 Gallettly v. Barrackman, 12 Ind. 279. it is too general. Burbank v. Dyer. 54 
 
 Abraham v. Chase, 11 Ind. 513; Mc- Ind. 392. 
 Farland v. McFarland, 40 Ind. 458;
 
 278 APPELLATE PROCEDURE 
 
 that no foundation was laid in the trial court by the proper 
 specific objections, motions, or exceptions. 
 
 § 325. Distinction between resembling Classes of Cases — It is evi- 
 dent that there is an essential difference between cases where 
 the assignment of errors is bad because the proper specific ob- 
 jections were not presented to the trial court, and cases where 
 it is bad because the specifications of error are too general, for, 
 in the one case, there can be no amendment on appeal, whereas, 
 in the other, the defect may be cured by the proper amendment. 1 
 Where a party is required to present specific objections to the 
 trial court, he is confined to the objections there presented, and 
 can not add to or change them on appeal. 2 But where the mis- 
 take consists wholly in making the specification of error too 
 general, as, for instance, assigning that a demurrer was sus- 
 tained to an answer of several paragraphs instead of properly 
 specifying each paragraph, 3 the mistake may be rectified on 
 appeal by amending the assignment of error as the rules of pro- 
 cedure require. The instance just given of a ruling on demurrer 
 to an answer composed of several paragraphs serves to illustrate 
 the distinction we are endeavoring to mark and enforce, for, if 
 the demurrer had been addressed to all of the paragraphs, and 
 some of them were good, then nothing that could be done in the 
 appellate court could rectify the mistake in demurring to an 
 entire answer, when the demurrer should have been to the sev- 
 eral paragraphs distributively. What is wholly and exclusively 
 part of the appellate procedure may, in the proper case and 
 upon due application, be amended or changed by order or leave 
 of the appellate tribunal, 4 but what is part of the trial court pro- 
 cedure can not be altered on appeal, hence it is important that 
 the pleadings of the court of appellate jurisdiction should be 
 carefully discriminated from those of the court in which the 
 original jurisdiction resides. 
 
 § 326. Specifications of Error Defective because too general — 
 
 Specifications of error may unquestionably be too general in 
 
 1 Supreme Court Rule III. len v. Clark, 49 Ind. 77; Starrier v. 
 
 2 Temple v. Lasher, 39 Ind. 203; State, 61 Ind. 360. 
 
 Griesel v. Schmal, 55 Ind. 475; McMul- 3 Bolin v. Simmons, 81 Ind. 92. 
 
 * Supreme Court Rule III.
 
 THE ASSIGNMENT OF ERRORS. 279 
 
 the true sense of the term,' but where the}' each respectively 
 properly specif}' a ruling made upon pleadings, motions, objec- 
 tions or exceptions, the specification is sufficiently definite in 
 cases where the objections are required to be specifically made 
 below and are there made in due form. Thus a specification 
 
 of error that the " court gave instructions numbered ," is 
 
 insufficient, not, however, simply because it is too general, but 
 because the objection should be speciricallv made in the trial 
 court. 2 Specifications of error may, it is sufficiently evident 
 from the bare statement, be ill for more reasons than one. The 
 rule deducible from the decisions and supported by principle is. 
 that where a specification of error definitely and certainly des- 
 ignates a ruling made upon specifications properly framed in 
 the trial court, all subordinate questions within the scope of 
 the original specifications are presented to the appellate tribu- 
 nal for consideration and decision. Such a specification may 
 not, of course, present an error requiring a reversal, but it will 
 present an error in such a manner as to call the ruling of the 
 trial court in review. Obviously there is a distinction between 
 the mode of presenting a question for consideration and pre- 
 senting a ruling which will require a reversal of the judg- 
 ment, and here we are only concerned with the question 
 whether the alleged error is presented in due form and 
 manner, not whether it is of such a character as to require the 
 appellate tribunal to reverse the judgment. It may be well 
 enough to add that the rule we indicate is essential to prevent 
 a violation of the rule prohibiting multifariousness and useless 
 prolixity as well as to secure clearness, harmony and precision. 
 
 § 327. Meaning of the rule requiring Specific Assignments — The 
 
 rule that the assignment of errors must be specific does not implv 
 
 1 Smith v. Ryan, 83 Ind. 152; Law- etc., Co. to. The Studebaker, etc., 
 less v. Harrington, 75 Ind. 379; Foster Co.. 117 Ind. 416; Richardson v. Sey- 
 v. Bringham, 99 Ind. 505; Clayton v. bold, 76 Ind. 5S; Bane v. Ward, 77 Ind. 
 Blough, 93 Ind. 85; Ray v. Detchon, 79 153; Hege v. Newsom, c/i Ind. 426; 
 Ind. 56. Western Union Tel. Co. v. Kilpatrick, 
 
 2 Pennsylvania Co. v. Gallentine, 77 97 Ind. 42: Williams v. Riley, SS Ind. 
 Ind. 322. As will be hereafter shown 290; LaFollette v. Higgins. 109 Ind. 
 specifications that properly form causes 241: Daunhauer v. Hilton, S2 Ind. 
 in a motion for a new trial can not be 531; Kissel v. Anderson, 73 Ind. 485; 
 made specifications of error. Queen, Austin v. Earhart, SS Ind. 1S2.
 
 280 APPELLATE PROCEDURE. 
 
 that errors fully and properly specified by the appropriate plead- 
 ing, or motion, in the trial court must be again specified in the 
 assignment of errors made on appeal ; on the contrary the rule 
 is that where errors are properly specified in the trial court it is 
 improper to repeat the specifications on appeal. What the law 
 requires to be done in the trial court can not be done on appeal, 
 and it is not necessary to specifically repeat on appeal what was 
 well specified below. Erroneous rulings upon pleadings must 
 be specified in the trial court, except in the rare cases where 
 they may be assailed in the first instance in the assignment of 
 errors. 1 Demurrers, motions and exceptions are the usual modes 
 of presenting objections to the process and pleadings. A mo- 
 tion for a new trial with causes specifically and definitely as- 
 signed, is the appropriate mode of bringing in review the rulings 
 upon matters pertaining to the trial. A motion for a venire de 
 novo is a proper mode of directing attention to a defective ver- 
 dict. A motion for judgment on answers to special interroga- 
 tories is the correct method of procedure where it is desired to 
 secure judgment upon the answers on the ground that they 
 control the general verdict. A motion to modify a judgment, or 
 specific exceptions to a decree, may bring in review questions 
 respecting the judgment or decree. This outline, rough and 
 indistinct as it is, answers our immediate purpose, which is, 
 first, to enforce the general proposition that errors that must be 
 specified in the trial court can not be effectively again specified 
 on appeal, and, second, to prepare the way for a discussion in 
 detail of the mode of assigning errors upon the rulings of the 
 trial court. 
 
 § 328. Errors respecting Jurisdiction of the Person — It is natu- 
 ral, as well as convenient, to begin with the mode of assigning 
 errors upon rulings respecting jurisdiction of the person, but, 
 as other phases of that general question are elsewhere treated, 
 we shall in this place speak only of that phase of the subject 
 connected with objections to the process. Jurisdiction of the 
 person is essential to the validity of judicial proceedings and 
 
 1 The question of jurisdiction of the tions that may first be made on appeal, 
 subject is not isidered, as il is post, Chaper XXIII. 
 
 fully discussed in the chapter on Ques-
 
 THE ASSIGNMENT OF ERRORS. 281 
 
 whether jurisdiction is obtained over the person depends upon 
 whether notice, or summons, has been issued and served as 
 the law requires. Objections to the form and substance of the 
 process where there is process and service must as a general 
 rule be made in the trial court, 1 and, according to the general 
 principle heretofore stated, all such specifications as are neces- 
 sary to clearly present the questions sought to be raised must 
 be made in the trial court since no additional specifications can 
 be made on appeal. No ground, or cause, for setting aside 
 the process, or its service, can be added to those stated in the 
 trial court. A defective or incomplete motion can not be aided 
 or cured by the assignment of errors. 2 
 
 § 329. Defective Trial Court Process — It is in accordance with 
 the general rule that motions, objections or the like constitute 
 the groundwork of the specifications of error that it is held that 
 where the defendant is served with process he must first seek 
 relief from a judgment rendered against him by default by • 
 a proper application addressed to the trial court. 3 The pro- 
 ceeding in the trial court must, in. such cases, conform to the 
 law, and the appellate court, as a general rule, although not al- 
 ways, simply reviews the question as presented by the record 
 and determines whether the trial court did or did not err in dis- 
 
 1 Clegg v. Patterson, 32 Ind. 135; 3 Barnes v. Conner, 39 Ind. 294; 
 Whiteside v. Adams, 26 Ind. 250, 252; Strader v. Manville, ^ Ind. in; Clegg 
 Evansville, etc., Co. v. Lawrence, 29 Ind. v. Fithian, 32 Ind. 90; Ratlif v. Bald- 
 622; Hawkins v. McDougal, 126 Ind. win, 29 Ind. 16; Goldsberry v. Carter, 
 539, 25 N. E. Rep. S20. The decision in 28 Ind. 59; Nutting v. Losance, 27 Ind. 
 the case of Helphenstine v. Vincennes 37; Skeen v. Huntington, 25 Ind. 510; 
 National Bank, 65 Ind. 5S2, is a good DeArmond v. Adams, 25 Ind. 455; Fra- 
 illustration of the true rule upon this sier :■. Hubble, 13 Ind. 432; Harlan v. 
 subject. For analogous decisions, see Edwards, 13 Ind. 430; Blair v. Davis, 9 
 Barnes v. Roemer, 39 Ind. 5S9; Torr Ind. 236. This principle applies to a 
 v. Torr, 20 Ind. 11S; Round v\ State, 14 case where a party assumes to contest 
 Ind. 493. the amount of damages assessed on de- 
 
 2 One reason why objections to pro- fault. O'Dell v. Carpenter, 71 Ind. 463; 
 cess or its service should be made in the Barnes v. Bell, 39 Ind. 32S. In harmony 
 trial courtis that it may be there amend- with the general rule that only injured 
 ed in many instances, so that it would parties can complain, it is held that 
 be unjust to permit a defendant to lie only a party prejudiced can attack a 
 by and make his objection available on judgment rendered on default. Knott 
 appeal. State v. Davis, 73 Ind. 359. :•. Taylor, 99 N. C. 511, 6 Am. Rep. 547.
 
 
 APPELLATE PROCEDURE. 
 
 posing of the application to be relieved from the consequences 
 of the default. The ruling of the trial court must, of course, 
 be sustained unless there was prejudicial error. 1 
 
 § 330. Application to Trial Court where process or service is 
 defective — There is some confusion in the decisions upon the 
 subject of relief from judgments rendered on default, for, in one 
 case, at least, the statement is made that in all cases where a 
 judgment is rendered upon default the defendant ma}' appeal 
 and assign error without taking any steps to be relieved in the 
 trial court.* It would be a palpable violation of principle to 
 permit a party over whose person jurisdiction has been obtained 
 
 1 As to what an applicant must show, 
 see Rupert v. Martz, 116 Ind. ~i: Cen- 
 ter Tp. v. Hoard. 1 10 Ind. >7<); Beatty 
 v. O'Connor, 106 Ind. 81; Will 
 Browning, 96 Ind. 149: Birch v. Frantz, 
 77 Ind. ii)i): Ammerman v. State, <)S Ind. 
 105; Jonsson :•. Lindstrom.i 14 Ind. 152; 
 Lee v. Basey, 85 Ind. 543: Slagle v. 
 Bodmer, 75 Ind. 330: Williams v. Kess- 
 ler, S2 Ind. 1S4; Lawler v. Couch, So 
 Ind. 369; Clandy V. Caldwell, 100 Ind. 
 Newcome v. Wiggins, 78 End. 306; 
 Morris v. Buckeye Engine Co., 7S Ind. 
 S6; Brumbaugh v. Stockman, 83 Ind. 
 ^83; Rogers v. Overton, 87 Ind. 410; 
 Nietert V. Trentman, 104 Ind. 390; 
 Coon r.Wclhorn. S3 Ind. 230: Joerns V. 
 LaNicca, 75 Iowa, 705. 38 N . W. Rep. 
 129: Weymouth v. Gregg (Mich)., 41 
 N. W. Rep. 2 \\. Jean v. Hennessy, 69 
 Iowa. 373; Kreite V. Kreite, 93 Ind. 
 5S3; Monroe V. Paddock, 75 Ind. 422. 
 Tin' case of Nichols : . Nichols. 96 Ind. 
 433, is very much limited by Nietert v. 
 Trentman, supra. 
 
 ■ Baldwin v. Humphrey, 75 Ind. 153. 
 This statement i--. perhaps, justified by 
 the remarks of the court in Odell V. 
 Carpenter, 71 Ind. 403, hut the cases 
 cited by no means warrant the hroad 
 statement. The case of Kyle V. Kyle. 
 55 Ind. 3S7. does not support it. In 
 
 that case the point decided is exhibited 
 by this language of the opinion : " But 
 
 the more recent ride is. that where the 
 
 court below has rendered judgment 
 against a party without having acquired 
 jurisdiction over him. he not having 
 appeared to the action, he may at once 
 appeal to the Supreme Court, without 
 having applied to the court below to set 
 the judgment aside." The case of 
 Strader v. Manville, 33 Ind. 1 1 1. decides 
 that where there is no cause of action 
 the question may be first made on ap- 
 peal, and so does Wright :■. Norris, 40 
 Ind. 247. Cochnower v. Cochnower, 
 27 Ind. 253, asserts that where there is 
 no process there is no jurisdiction of 
 the person, and that the. question may 
 be made on appeal. It is expressly said 
 that the decision is not in conflict with 
 Blair v. Davis. ,, Ind. 236, Harlan :\ 
 Edwards, 13 Ind. 430. or Cincinnati, 
 etc.. R. R. Co. :•. Calvert,' 13 Ind. 4S9. 
 Abdill v. Abdill, 26 Ind. 2S7, applies 
 only to infant defendants. B-ristor v. 
 Galvin, 62 Ind. 352, decides that where 
 there is no jurisdiction of the person 
 because no service of process, the ques- 
 tion may be first made on appeal. It 
 is quite clear that no one of these cases 
 goes to the extent asserted in Baldwin 
 v. I lumphrey, supra.
 
 THE ASSIGNMENT OF ERRORS. 283 
 
 to assign as error a ruling unchallenged in the trial court, al- 
 though, if there appropriately questioned, it might be available 
 on appeal. To permit a party who suffers a default in a case where 
 there is jurisdiction of the subject and of the person to make 
 an original objection to process on appeal, would be unjust to 
 the plaintiff and lead to mischievous results. A defendant who 
 suffers a default would be in a much better situation than one 
 who makes an active defense if such were the rule. A de- 
 fendant desirous of delay and of vexing his adversary would, it 
 is obvious, reap unfair advantage from such a doctrine. Strong 
 and satisfactory arguments ma}- be readily arrayed against the 
 doctrine, but not one of plausibility, much less of real strength, 
 in its favor. 1 
 
 § 331. The difference between cases where there is no Jurisdiction 
 and cases where Notice is defective — The confusion which some 
 of the cases have created is due to the failure to discriminate 
 between instances where there is no jurisdiction of the person 
 because no process or no service, and cases where there is pro- 
 cess and service but some defect or irregularitv. There is, as 
 has been suggested, a clear and well defined distinction be- 
 tween the two classes of cases, and the fundamental principles 
 of procedure forbid the confounding of the two classes for the 
 purpose of bringing them under one general rule. It is one 
 thing to frame a rule for a case where there is no jurisdiction 
 of the person and quite another to frame a rule for a case where 
 there is jurisdiction, although an error subsequentlv intervenes. 
 The distinction is, indeed, recognized in the verv case which 
 seems to deny it, for it is there held that where there is service 
 of process no question as-to the amount of the recoverv can be 
 first made on appeal. 2 
 
 1 The case of Baldwin v. Humphrey, diction still there may he an attack upon 
 
 75 Ind. 153, is cited in Old v. Mohler, 122 the judgment without any prior pro- 
 
 Ind. 594. 597, in support of the propo- ceedings in the trial court. That state- 
 
 sition that where there is an entire want ment does not express the law. 
 
 of a cause of action, the complaint may 2 Baldwin v. Humphrey, 75 Ind. 153, 
 
 be first assailed on appeal, although This distinction was fully recognized 
 
 there has been a default. This is, how- and enforced in Barnes :•. Bell, 39 Ind, 
 
 ever, very far from approving the state- 32S. where the case of Skeen v. Hunt- 
 
 ment that even though there is juris- ington, 25 Ind. 510. is approved. In
 
 284 
 
 APPELLATE PROCEDURE. 
 
 § 332. Cases where there is no Service — There is reason for 
 holding that where the record shows that there was no service 
 of process there can be no valid judgment and that the ques- 
 tion may first be presented on appeal. 1 In so far, therefore, 
 as our cases hold that such a question may first be made in the 
 appellate court, they can not be said to be radically wrong, 
 although there is some reason supporting the cases which 
 asserted that even where there was no process the objection 
 must first be presented by an application made to the trial court. 
 But the rule that the question may be first made on appeal, 
 has been unduly extended in some cases, for the rule has been 
 carried beyond the reason which alone gives it even the sem- 
 blance of strength. Where there is process or notice purport- 
 ing to be such as the law requires, and in form and substance 
 such as is required by law, then, although the process may be 
 defective an objection should be made below. This is in har- 
 mony with the closely resembling cases, which hold that where 
 there is some notice, although defective, it is sufficient to sustain 
 a judgment against a collateral attack. 2 It is also in harmony 
 
 Skeen v. Huntington it was said: "The 
 question of service we can not consider 
 as it lias been ruled by this court that 
 where a judgment is taken by default, a 
 motion to set aside the default, or pro- 
 ceedings for relief from the judgment, 
 or to review, it must precede an appeal." 
 In support of this statement the court 
 cited: Blair v. Davis, 9 Ind. 236; Har- 
 lan v. Edwards, 13 Ind. 430; FYasicr v. 
 Hubble, 13 Ind. 432; Kir by v. Robbins, 
 13 Ind. 470. Sec, also, Yancey v. Tet- 
 er, 39 Ind. 305; Gray r.'. Dickey, 20 Ind. 
 See, also, Searle :•. Whipperman, 
 
 79 Ind - l- 1- 
 
 1 Rany :•. Governor, 4 Blackf. 2; 
 
 tor v. Galvin, 62 Ind. $^2; Crane V. Kim- 
 mer,77 Ind. 215; Strader :•. Manville,33 
 Ind. in; Searle V. Whipperman. 79 
 Ind. 424, 426. See, generally, Wheeler 
 v. Edinger, 11 Iowa, 409; McCranev V. 
 Childs, n Iowa, 54; Winslow v. An- 
 derson, 3 Dev. & Bat. (L.) 9, 32 Am. 
 Dec. 651; Drew v. Claypool, 61 Mich. 
 233, 28 N. W. Rep. 7S; Miller v. Bur- 
 ton, 121 Ind. 22 4, 23 N. E. Rep. S4. 
 
 11 McAlpine v. Sweetser, 76 Ind. 78; 
 Muncey v . Joest, 74 Ind. 409; Hume v. 
 Conduitt, 76 Ind. 598; Stout v. Woods. 
 79 Ind. 10S; Oppenheim v. Pittsburgh, 
 etc., Co., 85 Ind. 471; Million z/.Board, 
 S9 Ind. 5, 12; McCormick v. Webster, 
 
 Miller v. Bottorf, 6 Black!'. 30; Klinger S9 Ind. 105; Brown t\Goble,97 Ind. 86, 
 
 Brownell, 5 Blackf. 332; Miles t>. Bu- 
 chanan, 36 Ind. 490; New Albany, etc., 
 Co. i>. Welsh, v Ind. 1711: L'oehnower 
 v. Cochnower, 27 Ind. 253; Cole v. 
 All. mi. ;i Ind. 122: Brooks v. Allen, 62 
 Ind. 401, 403; Abdill v. Abdill. 26 Ind. 
 287; Ilouk v. Barthold, 73 Ind. 21; Bris- 
 
 S9; Jackson v. State, 104 Ind. 516; 
 Kleyla v. Haskett, 112 Ind. 515; Hack- 
 ed v. State, 113 Ind. 532; Lake Shore, 
 etc., Co. v. Cincinnati, etc., Co., 116 
 Ind. 578; Bass v. City of Port Wayne, 
 121 Ind. 389; Morrow v. Weed, 4 Iowa, 
 77; Bonsall v. Isett, 14 Iowa, 309;
 
 THE ASSIGNMENT OF ERRORS. 
 
 285 
 
 with the rule that where there is process and service, objections 
 not made below to the form of the judgment or the amount of 
 recovery can not be successfully specified as error on appeal. 1 
 Some of the cases go beyond the line of principle, and also 
 oppose authority in holding that, although there is some notice 
 and some service, the question of the sufficiency of the notice 
 or service may be first made on appeal. 2 This ruling violates 
 many of the principles we have stated, and contravenes many 
 of the authorities referred to, and it also conflicts with the settled 
 doctrine that the authority to judge at all is jurisdiction, whether 
 the judgment be right or wrong. It also conflicts with the ac- 
 cepted doctrine that where there is process sufficient upon its face 
 to invoke the exercise of judgment upon its sufficiency, the judg- 
 ment is effective, for, though it may be erroneous, it is not void. 3 
 
 Ballinger v. Tarbell, 16 Iowa, 491; 
 Hendrick v. Whittemore, 105 Mass. 23; 
 Cook v. Darling, iS Pick. 393; Finner- 
 an v. Leonard, 7 Allen, 54; Wright 
 v. Marsh, 2 Greene (Iowa), 94; Paine 
 f. Mooreland, 15 Ohio, 435; Borden v. 
 State, 6 Eng. (Ark.) 519; Sheldon v. 
 Wright, 5 N.Y.497; Delaney v. Gault, 
 30 Pa. St. 63; Callen v. Ellison, 13 Ohio 
 St. 446; People v. Hagar, 52 Cal. 171. 
 
 1 Searle v. Whipperman, 79 Ind. 424. 
 This case very clearly shows the fallacy 
 of the reasoning in Berkshire v. Young, 
 45 Ind. 461; Davidson v. King, 49 Ind. 
 338 and Emmett -'. Yandes, 60 Ind. 54S, 
 and, beyond cavil, establishes the true 
 doctrine. See, generally, Woods v. 
 Brown, 93 Ind. 164. 
 
 2 Kyle v. Kyle, 55 Ind. 387. In stating 
 the general rule that where there is no 
 jurisdiction of the person there can be 
 no judgment, the opinion in the case 
 cited does not radically depart from 
 principle, but it does depart from 
 principle in deciding that where there 
 is a legal notice and service by an unau- 
 thorized person, the question ma}' be 
 first made on appeal. It seems clear 
 that there is, in such a case, a question 
 
 upon which the trial court has authority 
 to pass and which it must decide, and that 
 the utmost that can be said is that as an 
 erroneous decision it is reviewable upon 
 appeal if objection is first made below. 
 Catterlin v. City of Frankfort, S7 Ind. 
 45; Board of Commrs., etc., v. Hall. 70 
 Ind. 469. If the notice is such as to in- 
 form the party that there is an action 
 pending, it would seem that he ought to 
 object to its sufficiency in the trial court. 
 Nysewander v. Lowman, 124 Ind. 5S4; 
 Quarl v. Abbett, 102 Ind. 233; Goodell 
 r. Starr, 127 Ind. 19S. See, generally, 
 Pickering v. State, 106 Ind. 22S; Argo 
 v. Barthand, 80 Ind. 63; Ricketts v. 
 Spraker, 77 Ind. 371; Prezinger v. Har- 
 ness, 114 Ind. 491; Johnson v.. State, 116 
 Ind. 374; Otis v. DeBoer, 116 Ind. 531. 
 3 Knox County :•. Aspinwall, 21 How. 
 (U. S.) 537; Coloma v. Eaves, 92 U.S. 
 4S4; Douglass Co. v. Bolles, 94 U. S. 
 104; Bissell v. City of Jeffersonville. 24 
 How. (U. S.) 2S7; Evansville, etc., Co. 
 v. City of Evansville, 15 Ind. 395; Cauld- 
 well v. Curry, 93 Ind. 363; Town of 
 Cicero v. Williamson, 91 Ind. 541; 
 Mullikin v. City of Bloomington. 72 
 Ind. 161 ; Jackson v. State, 104 Ind. 516;
 
 •28(3 APPELLATE PROCEDURE. 
 
 We conclude that, upon principle as well as upon the better 
 reasoned cases, the true rule is, that where there is process and 
 service not absolutely void but voidable, only, the objection to 
 its sufficiency can not be first made by a specification of error 
 in the appellate tribunal. 1 
 
 § 333 Writs running beyond the Term — It is upon the doc- 
 trine that a writ running beyond a term is absolutely void that 
 the ruling can be sustained which declares that where there is 
 such a writ the objection may be first made on appeal. 2 The 
 decided cases warrant the conclusion that a writ made return- 
 able bevond the term is void. :i Upon the theory that such 
 a writ is utterly void it may, with reason, be affirmed that there 
 is no jurisdiction of the person, since the court can pronounce 
 upon the face of the record that there is no process, inasmuch 
 as a void writ is, in legal contemplation, no writ at all. In 
 holding that where there is no writ the objection may be first 
 made on appeal, the rule that where there is a writ, although a 
 defective one, the objection must first be made in the trial court, 
 is not impinged, much less violated, since it is quite clear that 
 there is an essential difference between cases where there is a 
 writ that might be quashed on due and seasonable objection and 
 cases where there is absolutely no process. 
 
 i 834. Judgments by Default — To hold that a defendant may 
 appeal directly from a judgment rendered against him by de- 
 
 .Muncey v. Joest, 74 Ind. 409; Platter v. authorities differ as to tin- effect of a 
 
 Board, 103 Ind. 360; Jackson v. Smith, recital in the record showing service, 
 
 120 Ind. 520; McEneney v. Town of some of the courts holding it prima 
 
 Sullivan, 125 Ind. 407, 412; Henline v. facie sufficient. Winston v. Miller, 20 
 
 People, Si 111. zUy. Chicago, etc., Co. v . Miss. 550; Maples v. Mackey, 15 Hun. 
 
 Chamberlain, S4 111. 333: Roderigras 533. Our cases are to the contrary. 
 
 LSI River, etc.. Co., 63 N. Y. 460, 3 Shirley V. Hagar, 3 Blackf. 225; 
 
 20 Am. Rep. 555; Porter v. Purdy, 29 Crocker v. Dunkin, 6 Blackf. 535; Ca- 
 
 N. Y. 106; Cooper v. Sunderland, 3 rev v. Butler, 11 Ind. 391; Will if. 
 
 Clarke (Iowa), 114; Vail v. Owen, 19 Whitney. 15 Ind. 194; Rigsbee V. Bow- 
 
 • Barb. 22; Youngman v, Elmira, etc., 65 ler, 17 Ind. 167; Atkinson v. Taylor, 2 
 
 Pa Si 278. Wills. 117; Parsons v. Loyd, 3 W T ills. 
 
 1 Lawrence V. Howell, 52 Iowa. 62; 341; Shirley :\ Wright. Salk. 700; Reu- 
 Haughey v.Wilson, i Hilt (N.Y.) 259. bel v. Preston, 5 East, 291; Burk v. 
 
 2 Briggs v. Sneghan. 45 Ind. 14. The Barnard, 4 Johns. 309.
 
 THE ASSIGNMENT OF ERRORS. 287 
 
 fault and attack the validity of the judgment in the assignment 
 of errors for the first time in a case where there is process and 
 service not absolutely void, or in a case where he has appeared, 
 would not only violate the principles we have stated, but it 
 would also involve the repudiation of a number of well consid- 
 ered and strongly reasoned cases. The cases to which we here 
 refer are, it is true, cases where the suit was one to review a 
 judgment ; x but the fact that the question arose on a bill to re- 
 view does not affect the principle, for the principle upon which 
 the court proceeds in reviewing a judgment is, so far, at least, 
 as concerns this phase of the subject, essentially the same as in 
 cases of appeals. 2 
 
 § 335. Failure to obey a Rule to Plead — In what has been said 
 respecting assignments of error in cases where judgments were 
 taken by default we had mainly in mind and referred to cases 
 where the default was taken upon a failure to appear and de- 
 fend, but there are, as is well known, many other cases where 
 a judgment may be taken upon default, that is, upon call of the 
 party who has failed to do what the law requires of him or who 
 has failed to obey an order or rule of court after having appeared 
 to the action. 3 Where there has been an appearance, and juris- 
 diction of the person is thus obtained, the general rule is that 
 all questions, except those special ones which may first be made 
 
 'Baker v. Ludlam, 11S Ind. S7; ers Ins. Co. v. Carpenter, 85 Ind. 350; 
 
 Shoaf v. Joray, S6 Ind. 70; Searle v. Klebar v. Town of Corydon, So Ind. 
 
 Whipperman, 79 Ind. 424; Tachau v. 95; Davis 7'. Binford, 70 Ind. 44. 
 
 Fiedeldey, Si Ind. 54; Hardy v. Miller, 3 Where pleadings are on file a judg- 
 
 S9 Ind. 440. ment by default can only be taken in 
 
 2 Indianapolis Mutual Ins. Co. v. the event that there is a failure or re- 
 
 Routledge, 7 Ind. 25; Barnes v. Wright, fusal to obey a rule or an order, for 
 
 39 Ind. 293; Barnes v. Bell, 39 Ind. 32S; where pleadings are on file, the case 
 
 Hardy v. Chipman, 54 Ind. 591; Rich- should be called for trial. Firestone v. 
 
 ardson v. Howk, 45 Ind. 451; Dunklev. Firestone, 78 Ind. 534; Lover 1 . Hall, 76 
 
 Elston, 71 Ind. 585; Rice -'.Turner, 72 Ind. 326; Kellenberger :. Perrin, 4(1 1 nd. 
 
 Ind. 559; American Ins. Co. v. Gibson, 2S2; Norris v. Dodge, 23 Ind. 190; Kir- 
 
 104 Ind. 336; Rigler v. Rigler, 120 by V. Holmes, 6 Ind. 33; Ellison v. 
 
 Ind. 431; Gates v. Scott, 123 Ind. 459. Nickols, 1 Ind. 477; Maddox v. Pul- 
 
 A party can not prosecute an appeal Ham, 5 Blackf. 205; Harris v. Muskin- 
 
 and also maintain a bill of review, gum. etc., Co., 4 Blackf. 267, S. C. 29 
 
 Buscher v. Knapp, 107 Ind. 340; Trad- Am. Dec. 372.
 
 288 APPELLATE PROCEDURE. 
 
 on appeal, must be first appropriately presented to the trial 
 court. 1 
 
 >: 336. Rulings on Pleadings Generally — In considering speci- 
 fications of error founded on rulings upon the pleadings it is 
 quite as well, perhaps, to begin with motions addressed to the 
 pleadings, such as a motion to compel the party to tile an ab- 
 stract of title, to file a bill of particulars, to make his pleading 
 more definite and certain, or the like, since such motions pre- 
 cede, in strict order, demurrers, pleas, or answers. 2 A motion 
 of the class mentioned is a special motion, and, as a general 
 rule, should specify the grounds upon which it is founded. 3 
 Where the motion does specify the grounds there is neither 
 necessity nor propriety in repeating them on appeal. If the 
 grounds are well specified below a specification indicating with 
 clearness and certainty the particular motion on which the rul- 
 ing was made is all that is proper. If this motion was not suf- 
 ficiently specific as originally filed its deficiencies can not be 
 supplied on appeal. 
 
 § 337. Rulings on Demurrers — As causes for demurrer must 
 be properly stated in the demurrer itself, it is only necessary 
 that the specifications in the assignment of errors should desig- 
 nate with clearness and certainty the particular ruling of which 
 
 1 Coffin v. Evansville, etc., Co., 7 Ind. 436. where it is held that the record 
 413. must show the grounds of a motion 
 
 2 Hart v. Walker, 77 Ind. 331. to strike out part of a pleading. See, 
 
 3 City of New Albany v. White, generally, Ratliff v. Stretch, 117 Ind. 
 100 Ind. 2c6; Louisville, etc., Co. v. 526, 20 N. E. Rep. 438; Fordyce v . Mer- 
 Crunk, 119 Ind. 542; Greenman v. rill, 49 Ark. 277, 5 S.W. Rep. 329; Hurst 
 Cohee, 61 Ind. 201; Cobble v. Tom- v. Ash Grove. 96 Mo. 168, 9 S.W. Rep. 
 linson, 50 Ind. 550: Bundy v. Pool. 82 631. What the motion to make more cer- 
 [nd. 502!; Gray v. Stiver. 24 End. 174; tain should point out. Fischer v. Coons 
 Kent v. Lawson, 12 Ind. 675; Lynch v. 26 Neb. 400, 42 N. W. Rep. 417. The 
 Jennings, 43 Ind. 27'); Heard v. State, remedy for uncertainty is by motion,not 
 57 Ind. 8; Hancock v. Ileaton. 53 Ind. demurrer. Moorman v. Shockney, 95 
 111: Hablichtel v. Yambert, 75 Iowa. Ind. SS; Betts v. Quick, 114 Ind. 165; 
 539.39N.W. Rep. 877; Barney r. Hart- Thomas v. Merry, 113 Ind. 83; Nowlin 
 ford. 73 Wis, 95,40 N.W. Rep. ^Si. As W.Whipple, 89 Ind. 490; Pittsburgh, etc., 
 illustrating the general rule may be cited Co. v. Hixon, no Ind. 225; Watt v, 
 the case of Walker v. Steele, 121 Ind. Pitman, 125 Ind. 168.
 
 TIN-: ASSIGNMENT OF ERRORS. 289 
 
 a review is sought. Where the demurrer is a distributive one, 
 that is, one addressed to each paragraph of a complaint, an- 
 swer, or reply, the specifications should be directed to the rul- 
 ing on each paragraph. The general principle which underlies 
 the entire system of procedure requires that where there are 
 several rulings each should be separately challenged. This is 
 in consonance with the accepted doctrine that where there is a 
 joint or undistributed objection to several pleadings the objec- 
 tion will fail unless the objection is valid as to all the pleadings 
 to which it is addressed. The safe rule, as well as the logical 
 rule, is to specify errors distributively upon each paragraph on 
 which a ruling is made. 1 
 
 S 338. Interrogatories to Parties — Interrogatories to parties are 
 parts of the pleading and are not matters connected with the 
 trial. As rulings on such interrogatories are rulings on the 
 pleadings, such rulings should be specified as independent errors, 
 for they are not embraced in a specification alleging error in 
 overruling a motion for a new trial. The practice of propound- 
 ing interrogatories is borrowed from the old chancery svstem. 
 and is, in effect, the statutory substitute for the bill of discovery. 
 In substance, there is no essential difference between the chan- 
 cery and statutory mode of procedure. 2 
 
 £ 339. Habeas Corpus Cases — Instances of a class different from 
 those growing out of ordinary civil actions but resting upon the 
 same general principle are supplied by habeas corf us cases. In 
 that class of cases it is held that while there must be a specific 
 assignment of errors it is, nevertheless, sufficient if the specifi- 
 cations of error point out with clearness and designate with 
 certainty the ruling made in the trial court. It will be sufficient 
 although thev do not go into minute details. To illustrate our 
 meaning and to prevent a broader construction than we desire 
 our words to receive, we say that where the appropriate excep- 
 
 1 Bolin r. Simmonds, Si Ind. 92; Hig- is closed. Sherman v. Hogland. 73 
 gins v. Kendall. 73 Ind. 522. Ind. 472. See, generally. Wheeler : . 
 
 2 Gates v. Thayer, 93 Ind. 156; Reed Reitz. 92 Ind. 379; Fitch -'. Citizens' 
 V. Spayde, 56 Ind. 394. Interrogatories National Bank, 97 Ind. 211; Hill :■. 
 are reqnired to he tiled with the plead- Nisbet, 100 Ind. 341. 
 
 ings, that is, prior to the time the issue
 
 290 APPELLATE PROCEDURE. 
 
 tion is reserved below it presents the question when followed 
 by a proper specification of error. 1 A petition for a writ of 
 habeas corpus can not be first assailed by the assignment of 
 errors, for the reason that the proceeding is a peculiar one and 
 is governed by rules unlike those which prevail in ordinary 
 civil actions, 2 but its peculiarities do not extend so far as to 
 render it necessary to repeat in the specifications of error the 
 points involved in the exceptions taken on the trial. If the ex- 
 ceptions there taken are properly presented, all subsidiary ques- 
 tions are involved in the rulings upon them, and by properly 
 assigning such rulings for error, all subsidiary questions em- 
 braced in them are properly brought before the appellate tri- 
 bunal for review. 
 
 § 340. Identifying the Ruling Complained of — In specifying the 
 ruling upon the pleading which it is the design of the party to 
 present to the appellate tribunal for review, the particular 
 ruling must be definitely and appropriately designated. It will 
 not do to designate any other ruling than the particular one 
 which the party desires reviewed. 3 This rule is of important 
 influence in cases where the party desires to present a question 
 upon the failure of the trial court to carry back a demurrer to 
 one pleading and sustain it to an antecedent pleading, as, for 
 instance, in the case of a failure to carry back to the complaint 
 a demurrer to the answer. In such a case it is not sufficient to 
 specify as error that the court erred in sustaining the demurrer 
 to the answer, for the law requires a specification of the partic- 
 ular ruling. 4 
 
 1 McGlennan v. Margowski, 90 Ind. complained of, and the specification of 
 
 150. A motion to quash the writ tests error must clearly designate the specific 
 
 the sufficiency of the petition, and, in ruling. Thus, a ruling upon a motion 
 
 accordance with the principle we have for new trial generally will not support 
 
 stated, a specification that the court a specification assigning as error a rul- 
 
 erred in sustaining or in overruling the ing upon a motion for a new trial upon 
 
 motion to quash will properly present an issue made upon a counter-claim or 
 
 the question on appeal. cross-complaint. Klinger v. Smith, 29 
 
 3 McClennan v. Margowski, 90 Ind. N. E. Rep. 364. 
 150; Baker v. Gordon, 23 Ind. 204; 4 Peters v. Banta, 120 Ind. 416; Hunt- 
 Cunningham f. Thomas, 25 Ind. 171; er v. Fitzmaurice, 102 Ind. 449; Stock- 
 Milligan v. State, 97 Ind. 355. well z\ State, 101 Ind. 1; Williams 
 
 3 State v. Weaver. 123 Ind. 512. The v. Stevenson, 103 Ind. 243. These de- 
 record must show the particular ruling cisions do not impinge upon the rule
 
 THE ASSIGNMENT OF ERRORS. 29J 
 
 §341. Objections to the mode of Impaneling the Jury — Objec- 
 tions to the mode of impaneling the jury must be made in the 
 trial court in order to form the basis of a specification in the 
 assignment of errors. 1 This rule is strictly analogous to that 
 established by the later cases wherein it is held that objections 
 to the appointment of a special judge must be opportunely pre- 
 sented to the trial court. 2 It is evident that no other rule can 
 be sanctioned without a radical departure from principle, al- 
 though some of the earlier cases indicate a different view. The 
 general doctrine of waiver is incidentally involved in questions 
 respecting the impaneling of juries, as it is, indeed, in very 
 many phases of procedure, for a failure to seasonably and ap- 
 propriately object is a waiver which the parties are not always 
 at liberty to retract. 3 
 
 § 342. Rulings on Verdicts — The line between appellate pro- 
 cedure and trial court practice, as in many other instances, is a 
 very thin and indistinct one in respect to the method of ques- 
 tioning verdicts, and it is not always easy to say where the 
 subject properly belongs. It can not, in truth, be said that the 
 
 that a bad answer is good enough for a Harper v. Jacobs, 51 Mo. 296; Terri- 
 
 bad complaint, for they are not directed tory v. Bryson 9 Mont. 32, 22 Pac. Rep. 
 
 to that phase of the subject. A de- 147. 
 
 fendant may, of course, parry an at- 3 Henny Buggy Co. v. Patt, 73 Iowa, 
 
 tack upon his answer by showing the 767, 35 N. W. Rep. 587; Stevenson v . 
 
 insufficiency of the complaint. Felton, 99 N. C. 58,5 S. E. Rep. 399; 
 
 1 Dolan v. State, 122 Ind. 141; Doo- Cole v. Terrell, 71 Tex. 549,9 S. W. 
 little v . State, 93 Ind. 272; Vanvalken- Rep. 66S. Demand for jury should he 
 berg v. Vanvalkenberg, 90 Ind. 433. seasonably made. Thorp v. Reilv. 57 
 
 2 Cargar v. Tee, 119 Ind. 536; Bowen N. Y. Sup. Ct. 589, 8 N. Y. Sup. 493; 
 v . Swander. 121 Ind. 164; Schlungger v. Sternberger v. Bernheimer (N. Y.), 24 
 State, 113 Ind. 295; Bartley v. Phillips, N.E.Rep.311. Upon the general sub- 
 114 Ind. 189; Greenwood v. State, 116 ject of demanding a jury, see, Gleaves 
 Ind. 4S5; Littleton v. Smith, 119 Ind. v. Davidson, 85 Tenn. 380,3 S.W. Rep. 
 230; Hayes v. Sykes, 120 Ind. 1S0; 348; East Tennessee, etc., Co. v. Mar- 
 State v. Whitney, 7 Oregon, 386. See, tin, S5 Tenn. 134, 2 S. W. Rep. 381; 
 generally, Fassinow v. State, 89 Ind. Hyde v. Redding, 74 Cal. 493, 16 Pac. 
 235; Kennedy v. State, 53 Ind. 542; Rep. 3S0; Fostor v. Hinson, 76 Iowa, 
 Barnes v. State, 2S Ind. 82; Walter v. 714. 39 N.W. Rep. 682; hi re Hooker's 
 Walter, 117 Ind. 247; Hyatt v. Hyatt, Estate, 75 Iowa. 377, 39 N.W. Rep.' ;j 
 ^ Ind. 309; Rudd t\ Woolfolk. 4 Bush. See Special Findings and Special Ver- 
 555; Grant v. Holmes, 75 Mo. 109; diets.
 
 APPELLATE PROCEDURE. 
 
 subject can be fully understood without blending the rules which 
 obtain in the trial court and in the appellate tribunal, for the 
 attack in the trial court is the basis of the specifications in the 
 assignment of errors. It is for this reason that it is proper to 
 speak, although not at length, of the objections which may be 
 urged against a verdict, as well as of the rule by which a ver- 
 dict is to be interpreted or construed. Immaterial defects, or 
 unimportant inaccuracies, will not prevail to overthrow a ver- 
 dict, either general or special ; on the contrary, if the verdict is 
 so full and intelligible as to support a judgment it will be up- 
 held. 1 A verdict must receive a liberal construction and all parts 
 of it, 2 at least in so far as they relate to the same subject, must 
 be taken into consideration ; to consider it in fragmentary parts 
 would, it is evident, violate the familiar rule applicable to plead- 
 ings, instructions and the like, since that well-known rule forbids 
 dissection and attacks in detail. If the verdict is sufficiently 
 certain as against the party who assumes to complain his com- 
 plaint will not be heeded. 3 In strictness, a motion which as- 
 sumes to challenge the sufficiency of a verdict should specify 
 the defects which are assumed to exist. 4 It is probably true 
 that some of the cases indicate that a different course may be 
 safely pursued, but the object of the code is to secure a clear 
 specification of the grounds upon which a party proceeds and 
 to fully present those objections to the trial court, so that to 
 maintain harmony and carry into effect the spirit of the code it 
 should be held that objections must be specific. Another reason 
 supports this conclusion and that is that the ruling on a motion 
 should be specified in the assignment of errors, and not the 
 particular grounds upon which the motion is based. 
 
 § 343. Specifications in cases of rulings on Verdicts — Indepen- 
 
 ' Beggs v. Stati. [22 Ind.54, 23 N.E. 29 Ind. 51; Marcus v. State, 26 Ind. 101; 
 
 Rep. 693; Thames Loan, etc., Co. v. Smith v. Jeffries, 25 Ind. 376; Boxley 
 
 Beville, 100 Ind. 309; Bonewits v. Wy- r. Collins, 4Blackf. 320; Moore v. Read, 
 
 gant, 75 Ind. 41; Lentz v. Martin. 75 1 Blackf. 177; State v. McNamara, 100 
 
 Ind. 228; Peed v. Brenneman, 72 Ind. Mo. 100, 13 S. W. Rep. 93S. 
 
 288; Ridenour v. Beekman, 68 Ind. 236; J Woodard v. Davis, 127 Ind. 172; 
 
 Hershman v. Hershman, 63 Ind. 451; Baldwin v. Burrows, 95 Ind. 81. 
 
 Merrick v. State, 63 Ind. 327; Breckley s Clark v. Brown, 70 Ind. 405. 
 
 y.Weghorn, 71 Ind. 497; Trout -'.West, 4 Deatty v. Shirley, 83 Ind. 218.
 
 THE ASSIGNMENT OF ERRORS. 293 
 
 dent specifications of error can not be made upon verdicts, for 
 there must be some motion challenging them in the trial court. 1 
 A motion for a new trial generally brings forward for review 
 all questions except such as relate to the form and character of 
 a general verdict, but where the form or sufficiency of a general 
 verdict is sought to be questioned, the appropriate motion ad- 
 dressed to the verdict itself, and not, as a general rule, to mat- 
 ters preceding or following it, must be made in the court of 
 original jurisdiction. The appropriate motion is for a venire de 
 novo. 2 If such a motion is made, 3 then, all that need be done 
 is to specify the ruling on the motion in the assignment of errors. 
 A motion for a venire de novo, it may not be improper to add, 
 simply reaches defects apparent on the face of the record. 4 
 
 § 344. Rulings on Judgments — Independent specifications of 
 error presenting original objections to a judgment or decree are, 
 as a general rule, unavailing, for the rule is that objections to a 
 judgment or decree must be presented to the trial court and a 
 decision secured, or else a decision asked and denied. Where 
 the proper steps have been taken in the trial court the specifi- 
 cations of error must be made upon the rulings of that court. 
 This is in harmony with the general doctrine that, wherever it 
 is practicable, parties must give the trial court a seasonable op- 
 portunity to review its rulings. Where a judgment fails to fol- 
 low the verdict the question should, as a general rule, be first 
 presented to the trial court. 5 It is probable that there are some 
 
 1 Kamerick v. Castleman, 29 Mo. * Dolan v. State, 122 Ind. 141. The 
 
 App. 65S; Dockerty v. Huston, 125 Ind. rule in this State is different from that 
 
 102, 25 N. E. Rep. 144. of the common law, for, although a 
 
 ' Bunnell v. Bunnell, 93 Ind. 595; verdict does not find upon all the is- 
 
 Carver v. Carver, 83 Ind. 36S; Thayer sues, it is not vulnerable to an attack 
 
 v. Burger, 100 Ind. 262; Ridenour v. by a motion for a venire de novo. 
 
 Miller, 83 Ind. 208; Baughan T'.Baugh- Board of Commissioners v. Pearson, 
 
 an, 114 Ind. 73; Bartlev v. Phillips, 114 120 Ind. 42A, 16 Am. St. R. 325. 
 
 Ind. 1S9. 5 Berkey.etc. Co. v. Hascall, 123 Ind. 
 
 3 It must be made before judgment. 502; Skaggs v. State, 108 Ind. 53; Scott 
 
 McClintock v. Theiss, 74 Ind. 200; v. Minneapolis, etc., Co.. 42 Minn. 179; 
 
 Deatty v. Shirley, 83 Ind. 21S. Does Baker v. Moor, S4 Ga. 1S6, 10 S.E. Rep. 
 
 not serve the purpose of a motion for a 737; Bell v. Mansfield (Ky.), 13 S. W 
 
 new trial. Glantz v. City of South Rep. S38. In Scott v. Minneapolis, etc., 
 
 Bend, 106 Ind. 305. Co., supra y it was held that where a judg-
 
 294 APPELLATE PROCEDURE. 
 
 exceptions to this general rule, but it is certainly always safest 
 to present objections to the trial court, for it is very seldom in- 
 deed that they can be made with success as original questions 
 on appeal. 
 
 § 345. Mode of objecting to Judgments — The mode of objecting 
 to a judgment often approved by this court is by a motion to 
 modify. 1 In many instances and in a variety of cases it has 
 been held that such a motion is necessary in order to reserve a 
 question for review on appeal. Thus, in one case, it was held 
 that where a personal judgment was erroneously rendered the 
 failure to make the proper motion in the trial court precluded 
 the complaining party from making the error available by spec- 
 ifying it in the assignment of errors. 2 So, where the court goes 
 beyond the issues, the proper objection must be appropriately 
 presented to the trial court. 3 A case of a different class, but 
 one forcibly illustrating the rule, is that wherein it was held 
 that in order to present a question upon a judgment containing 
 an order revoking the license of a liquor seller, an objection 
 must be properly made in the court of original jurisdiction. 4 
 Where it is sought to question a judgment erroneously provid- 
 
 mcnt was entered by the clerk without 575; Becknell v. Becknell, no Ind. 42; 
 
 any order of the court that the failure Carrothers v. Carrothers, 107 Ind. 530; 
 
 to object below prevented a considera- Johnson v. Unversaw, 30 Ind. 435; 
 
 tion of the question on appeal. As sus- Pierce v. Wilson, 4S Ind. 29S; Ma- 
 
 taining this doctrine the court cited honey v. Robbins, 49 Ind. 146; Ebber- 
 
 Eaton v. Caldwell, 3 Minn. 134; Olden- sole v. Redding, 22 Ind. 232; Stout v. 
 
 berg v. De-vine, 40 Minn. 409, 42 N.W. Cary, no Ind. 514. 
 
 Rep. 88; Lundberg v. Single Men's En- 2 Cockrum v. West, 122 Ind. 372; 
 
 dowment Association, 41 Minn. 505, 43 Rardin v. Walpole, 38 Ind. 146. See, 
 
 N. W. Rep. 394; Savage v. State, 19 also, Smith v. Dodds, 35 Ind. 452; Jem- 
 
 Fla. 561. ison v. Walsh, 30 Ind. 167. 
 
 1 Clark v. Wilson, 77 Ind. 176; Evans 3 Landers v. George, 49 Ind. 309. See, 
 
 v. Feeny, 81 Ind. 532; Stephenson v. generally, McCormick v. Spencer, 53 
 
 Ballard, 82 Ind. 87; Martin v. Martin, Ind. 550; Miles v. Buchanan, 36 Ind. 
 
 74 Ind. 207; Terry v. Shivelv, 93 Ind. 490; Buchanan v. Berkshire, etc., Co., 
 
 413; City of Greenfield v. State, 113 96 Ind. 510; Buell v. Shuman, 2S Ind. 
 
 Ind. 597; Baddeleyy. Patterson, 78 Ind. 464; Teal v. Spangler, 72 Ind. 380 
 
 157; Karle r\ Simons, 94 Ind. 573; Mer- Smith v. Tatman, 71 Ind. 171; Nor- 
 
 ritt v. Pearson. 76 [rid. 44; Jenkins V. dyke, etc., Co. v. Dickson, 76 Ind. 188; 
 
 Rice, 84 Ind. 342; Landwerlen v. Wheel- Terry 7-. Shivelv, 93 Ind. 413; Ingel v. 
 
 er, 106 Ind. 523, Kissel! v. Anderson, Scott, S6 Ind. 51S. 
 
 73 Ind. 485; Smith v. Kyler, 74 Ind. * Douglass v. State, 72 Ind. 385.
 
 THE ASSIGNMENT OF ERRORS. 295 
 
 ing for a waiver of appraisement laws the objection must be 
 first presented to the lower court. 1 
 
 § 346. Original Objections to Judgments — The true rule, true 
 because it is based on principle and harmonizes with kindred 
 rules, is that the objections to a judgment or decree must be 
 specified with reasonable certainty and definiteness in the lower 
 court. The failure to there make the proper specifications 
 would, if such specifications were permitted to be made on ap- 
 peal, lead to a transgression of the fundamental doctrine that 
 where opportunity offers specific objections must be presented 
 to the trial court, and it would also lead to a violation of the 
 rule designed to avoid prolixity in specifying errors in the as- 
 signment. The cases which are most consistent with principle 
 are those which hold that the specific objections must be first 
 presented to the trial court. 2 Objecting in a general way is no 
 more than asserting that the party does object, and, surely, 
 nothing of practical worth can be accomplished by such a 
 course, for it leaves the court to hunt for the real objections, if 
 any there are. Not only must the objections to a decree or 
 
 1 Johnson v. Prine, 55 Ind. 351; Lewis case of Wainscott v. Silvers, 13 Ind. 
 v. Edwards, 44 Ind. 333; Atkisson v. 497. Another of the cases cited in 
 Martin, 39 Ind. 242; O'Brien v. Peter- Griffin v. Reis, Piel v. Brayer, 30 Ind. 
 man, 34 Ind. 556; Watts v. Green, 30 332, is not at all in point. In the case 
 Ind. 98. of Knarr v. Conway, 42 Ind. 260, no 
 
 2 Stout v. Curry, no Ind. 514; Scot- question was made or decided regarding 
 ton v. Mann, 89 Ind. 404; Benefiel v. the method of objecting to the decree. 
 Aughe, 93 Ind. 401; Horman v. Hort- The decision in Searle7>. Whipperman, 
 mer, 128 Ind. 353; Mansfield v. Shipp, 27 79 Ind. 424,1s in principle opposed to 
 N. E. Rep. 427; Jenkins v. Rice, 84 Ind. the doctrine of Griffin v. Reis, and so 
 342; Indianapolis, etc., Co. v. Smythe, are the cases first cited in this note, as 
 45 Ind. 322; McClain v. Sullivan, 85 well as many others. American Ins. 
 Itul. 174; Bayless v. Glenn, 72 Ind. 5. Co. v. Gibson, 104 Ind. 336, and cases 
 It was held in Griffin f. Reis, 68 Ind. cited, p. 342; Tachau v. Fiedeldey, 81 
 9. that where the objection is apparent Ind. 54; Shoaf v. Joray, 86 Ind. 70; 
 on the face of the decree a general ex- Traders Ins. Co. v. Carpenter, S5 Ind. 
 ception is sufficient. One of the cases, 350. It is safe, therefore, to affirm that 
 Cubberly v. Wine, 13 Ind. 353, cited in the case we have criticized must be 
 Griffin v. Reis, was expressly, and, as deemed to be overruled in so far as it af- 
 we think, correctly overruled in Thomp- fects the question of the mode of pre- 
 son v. Davis, 29 Ind. 264. With the senting objections to a decree. 
 
 fall of Cubberlv v. Wine must fall the
 
 296 APPELLATE PROCEDURE. 
 
 judgment be specific, but the objections must also be properly 
 brought into the record or they will not be regarded. 1 
 
 .^ 347. Causes for new trial not assignable as error — It has been 
 held in very many cases that rulings which properly form the 
 basis, grounds, or causes, for a new trial, can not be inde- 
 pendently assigned as error. 2 This holding is in accordance 
 with principle, inasmuch as it gives the trial court an opportunity 
 to review its own rulings and correct its own errors. It also 
 gives consistency to procedure and secures harmony, because 
 it adheres to the fundamental principle that where objections 
 are required to be made in the trial court there they must be 
 first made, and there made so fully that they cover all the 
 questions involved in the ruling challenged on appeal. 3 A 
 counterpart of the rule just stated is supplied by the doctrine 
 deducible from the cases which hold that rulings properly as- 
 signed as causes, or reasons, for a new trial are brought before 
 the appellate tribunal for review by a specification of error that 
 the trial court erred in overruling the motion for a new trial. 4 
 The office of the motion is to fully present the reasons or causes 
 
 1 McClain v. Sullivan, 85 Ind. 174; 60 Ind. 56; Wiley v. Barclay, 58 Ind. 
 Adams v. LaRose, 75 Ind. 471; Peoples 577; Jones v. Doe, 1 Ind. 109; Priddy 
 Savings, etc., Co. v. Spears, 115 Ind. 297; v. Dodd, 4 Ind. 84. 
 
 Forsythe v. Kreuter, 100 Ind. 27; Penn- 3 Hill v. Jamieson, 16 Ind. 125; Fuller 
 
 sylvania Co. v. Niblack, 99 Ind. 149; v. Indianapolis, etc., Co., iS Ind. 91; 
 
 Stelzer v. LaRose, 79 Ind. 435; Mar- Leever v. Hamill, 57 Ind. 423; Wood- 
 
 quess v. LaBaw, S2 Ind. 550; Quill v. field v. Barbee, iS Ind. 320; Garver v. 
 
 Gallivan, 10S Ind. 235. Daubenspeck, 22 Ind. 238; Keyser v. 
 
 2 Allen v. State. 74 Ind. 216; Smith Wells, 60 Ind. 261; Watson v. Piel 58 
 v. Kyler, 74 Ind. 575; Todd v. Jack- Ind. 566. An assignment of errors can 
 son, 75 Ind. 272; Cole v. Kidd, So Ind. not be made to serve the purposes of a 
 563; Bake v. Smiley, 84 Ind. 212; Bolin motion for anew trial. Haj's v. Walker, 
 v. Simmons, 81 Ind. 92; Hutts v. Shoaf, 90 Ind. 105. 
 
 SS Ind. 395; Kcrnodle v. Gibson, [T4 * Grant v. Westfall, 57 Ind. 121; 
 
 Ind. 451; Davis v. Montgomery, 123 Leever v. Hamill, 57 Ind. 223; Doug- 
 
 Ind. 587; Robbins v. Magee, 96 Ind. lass v. Blankenship, 50 Ind. 160; Galvin 
 
 [74; Daunhauer v. Hilton, 82 Ind. 531; v. State, 56 Ind. 51. The proper speci- 
 
 ome, 96 Ind. 426; IIous- fication in every instance where cai 
 
 ton v. Briner, 59 I ml. 25; Lyman v. arc required to be stated in a motion 
 
 Buckner, (>o Ind. 402; Claflin v. Daw- lor a new trial is on the ruling denying 
 
 son, 5S Ind. 40S; Watson v. Piel, 5S the motion. Bolin r\ Simmons, Si Ind. 
 
 Ind. 566; Wallis v. Anderson, etc., Co., 92; Bane v. Ward, 77 Ind. 153.
 
 THE ASSIGNMENT OF ERRORS. 297 
 
 for a new trial, and once presented they need not be repeated, 
 as the specification on the ruling denying the motion brings 
 all the causes properly assigned in the motion to the attention 
 of the appellate tribunal. 
 
 § 348. What matters are not assignable as reasons for a new 
 
 trial — Causes improperly assigned in a motion for a new trial 
 can not be regarded, and rulings upon demurrers or motions 
 addressed to the pleadings can not be made causes for a new 
 trial. 1 Rulings on the pleadings do not pertain to the trial in 
 such a sense as to make it proper to assign them as causes for 
 a new trial and hence it will accomplish nothing to incorporate 
 them in the motion. It is correctly held, as is evident from 
 the considerations just stated, that rulings on the pleadings 
 must form the basis for independent and distinct specifications 
 of error. 
 
 § 349. What should be made Independent Specifications of error — 
 
 While the principle that all rulings other than those made upon 
 the pleadings must be specified in a motion for a new trial is a 
 sweeping one, still, there are exceptions composed of instances 
 which it is very difficult to classify. Thus where an applica- 
 tion for a change of judge in a proceeding for the appointment 
 of a receiver is denied the ruling denying the change may be 
 specified as an independent error. 2 The reason assigned for 
 this decision is that there was no opportunity to present the 
 question by a motion for new trial. This reason is a sound one 
 and may be taken as a standard by which to determine whether 
 
 1 Irwin v. Smith. 72 Ind. 4S2; Davis v. 462; Gibson v. Garreker, S2 Ga. 46, 9 S. 
 
 Pool, 67 Ind. 425; Miles v. Buchanan, 36 E. Rep. 124; Rogers v. Rogers, 7S Ga. 
 
 Ind. 490; Cincinnati, etc., Co. v. Wash- 6SS, 3 S. E. Rep. 4.51; Milliken v. 
 
 burn, 2$ Ind. 259; Gray v. Stiver. 24 Ind. Ham, 36 Ind. 166; Marks v. Trustees, 
 
 174; City of New Albany :•. White. 100 etc., 56 Ind. 288; De Barry-Baya, etc., 
 
 Ind. 206; Pattersons. Scottish American Co. v. Austin. 76 Ga. 306. A motion 
 
 Co., 107 Ind. 497; Hamilton v. Elkins, in arrest of judgment falls within this 
 
 46 Ind. 213; Marshall v. Beebcr, 53 rule. Shore v. Taylor, 46 Ind. 345; 
 
 Ind. 83; Indianapolis, etc., Co. v. Stout, Firestone v. Daniels, 71 Ind. 570; Allen 
 
 53 Ind. 143; Line v. Huber, 57 Ind. v. State. 74 Ind. 216; Todd v. Jackson. 
 
 261; Hunter v. Fitzmaurice, 102 Ind. 75 Ind. 272. 
 
 449; Denman v. McMahin, 37 Ind. 241; * Shoemaker v. Smith 74 Ind. 71. 
 Ohio, etc., Co. v. Hemberger, 43 Ind.
 
 APPELLATE PROCEDURE. 
 
 a ruling shall be specified as an independent error, for if there 
 is no opportunity, that is, no legal opportunity, to embrace it in 
 a motion for a new trial, no other course can be pursued by the 
 appellant than that of making the ruling the basis of an inde- 
 pendent specification of error. Belonging to this anomalous 
 class of cases is the one wherein it is held that a ruling refusing 
 to appoint a guardian ad litem is not a cause for a new trial 
 and hence the ruling may be independently specified. 1 To the 
 same class may be assigned the case which holds that a motion 
 to set-off a judgment may form the basis of an independent 
 specification. - 
 
 § 350. Independent Specifications — When proper — Where the 
 
 award of a new trial will not reach the ruling supposed to be 
 erroneous the ruling should be made the basis of an independ- 
 ent specification of error. It seems clear that if the granting 
 of a new trial will not rectify the mistake committed in ruling 
 upon a motion, application, or the like, the ruling should not 
 be assigned as a cause for a new trial, since nothing could be 
 accomplished by embracing it in the motion. Some of the 
 cases seem to trench somewhat upon this rule but there are 
 others which declare and enforce it. Thus, a refusal to remand 
 a case to a justice of the peace for trial is not a cause for new 
 trial and the ruling should form the basis of an independent 
 specification in the assignment of errors. 3 Overruling a motion 
 to stay proceedings brought to foreclose a mortgage in a State 
 court where the mortgagor has a pending petition in bank- 
 ruptcy is not a cause for new trial and should, therefore, be in- 
 dependently assigned for error.' It is difficult to lay down any 
 general rule which will not be greatly broken upon by excep- 
 tions, but it may safely be said that the general rule is this : If 
 
 1 Evans v. State, 58 Ind. 5S7. It is, Vawter v. Gilliland, 55 Ind. 27S, it was 
 of course, to be understood that the said by the reporter that : "An errone- 
 proper motion must be made in the cms ruling upon a motion made prior 
 trial court, for, under the general rule to the trial of a cause is not a ground 
 so often referred to, it can not be first for a new trial." It is very clear that 
 made on appeal. this statement is entirely too broad; it 
 
 2 McAllister v. Willey, 60 Ind. 195. is. indeed, not supported by the opinion 
 
 3 Tibbetts v. ( >'Connell, 66 Ind. 171. in the case in which it appears. 
 * Markson v. Haney, 47 Ind. 31. In
 
 THE ASSIGNMENT OF ERRORS. • 299 
 
 the ruling is connected with the trial procedure and is not made 
 upon the pleadings, or is not made upon independent questions 
 not relating to the trial, or is not made upon the verdict, or upon 
 answers of the jury to interrogatories, or does not affect the form 
 of the judgment or decree, it should be specified as a cause or 
 reason for a new trial. But the rule even as stated is a general 
 one burdened with exceptions. 
 
 § 351. Specifications of the motion for a new trial — The rule that 
 a specification that the court erred in overruling the motion for 
 a new trial is all that is ordinarily required in the assignment 
 of errors is easy of application in all cases where it is clear that 
 the rulings challenged are such as pertain to the trial and form 
 causes or reasons for a new trial, but it is not alwa} T s easy to 
 determine what rulings should be made the basis of the spec- 
 ifications in a motion for a new trial. The cases upon the gen- 
 eral subject go very far in the direction of holding that all 
 rulings, not made on the pleadings, but made in the course of 
 the proceedings although not directly connected with the trial, 
 must be specified in the motion for a new trial, and can not be 
 specified as independent errors. Thus, it is held that a ruling 
 upon an application for a change of judge or for a change of 
 venue must be specified as a cause for new trial, and can not 
 be made a specification of error. 1 So, in the case of a ruling 
 upon a motion for continuance, the ruling must be assigned as 
 a cause for a new trial or it will not be available on appeal. 2 
 There is, it is evident, no direct connection between what is 
 strictly trial procedure and many of the rulings which are held 
 to be so connected with the trial as to make it necessary and 
 proper to incorporate them in a motion. For instance, an ap- 
 plication for a change of venue may be made and overruled 
 
 1 Horton v. Wilson, 25 Ind. 316; Knarr ing the law. State v. Wolever. 127 Ind. 
 
 ■v. Conaway, 53 Ind. 120; Krutz v. How- 306. 
 
 ard, 70 Ind. 174; Wiley v. Barclay, 58 2 Continental Life Ins. Co. v. Kess- 
 
 Ind. 577; Walker v. Heller, 73 Ind. 46. ler, 84 Ind. 310; Bratton v. Bratton, 79 
 
 It may not be out of place to say that Ind. 588; Arbuckle v McCoy, 53 Ind. 
 
 the remark in Krutz v. Howard, supra, 63;- Carr v. Eaton, 42 Ind. 3S5; Sco- 
 
 that when a sufficient affidavit for a ville v. Chapman, 17 Ind. 470; Kent v. 
 
 change is made the court has no juris- Lawson, 12 Ind. 675; Westerfield v. 
 
 diction, can not be regarded as express- Spencer, 61 Ind. 339.
 
 300 APPELLATE PROCEDURE. 
 
 and yet the trial proper may not be entered upon until one or 
 more terms have intervened. It is, however, no great strain 
 upon consistency to give a very liberal effect to the term trial, 
 for a motion for a new trial is thus made to bring in review 
 before the trial court many rulings and afford it an opportunity 
 to correct mistakes. This is quite important and is a practical 
 consideration justly exerting a controlling influence. In fur- 
 ther illustration, and as evidence of the correctness of our state- 
 ment that the court inclines to extend to the utmost the doctrine 
 that specifications must be made in a motion for a new trial, 
 may be adduced the cases which hold that the refusal to com- 
 pel more specific answers to interrogatories addressed to a jury 
 must be assigned as a cause for a new trial and can not prop- 
 erly be made a separate specification in the assignment of 
 errors. 1 The cases illustrating and enforcing the doctrine 
 embodied in our statement are very numerous, and of great 
 variety. 2 
 
 § 352. Trial where Issues of Law are undecided — In other cases, 
 the rule respecting the assignment of rulings as causes for a 
 new trial is carried very far. The cases we have in mind are 
 those which hold that a failure to object to a trial where a de- 
 murrer is pending and undecided 3 is unavailing unless chal- 
 lenged in the trial court. The earlier cases seem undecided as 
 to the mode of questioning the ruling, some of them intimating 
 that it might be done either by a motion in arrest of judgment 
 or by a motion for a new trial. 4 It appears clear to us that the 
 
 1 Staser v. Ilogan, 120 Ind. 207, 211; son v. Weaver, 17 Ind. 223; The Cin- 
 Bedford, etc., Co. v. Rainbolt, 99 Ind. cinnati, etc., Co. v. McFarland, 22 1ml. 
 551; West v. Cavins,74 [nd. 265; Ogle 459; King v. State, 15 Ind. 64; Perrin 
 v. Dill, 61 Ind. 43S; Patterson v. Lord, v. Johnson, 16 Ind. 72; Kegg v. Welden, 
 47 Ind. 203. 10 Ind. 550. See Hansher v. Hansher, 
 
 2 Western Union Tel. Co. v. Frank, 85 94 Ind. 208. 
 
 Ind. 480; Neffv. Reed, 98 Ind. 341, 345 * Haunt'. Wilson, 28 Ind. 296; Miles 
 
 (partially overruling Dukes v. Working, v. Buchanan, 36 Ind. 490, 500. In other 
 
 93 Ind. 501); Meranda v. Spurlin, 100 eases it is held that a motion for a new 
 
 Ind. 380, 388; Racer v. Baker, 113 Ind. trial presents the question. Anderson 
 
 177; McDonald v. Stader, io Ind. 171. v. Weaver, 17 Ind. 223; Gray v. Cooper, 
 
 3 That it is error to try a ease where 5 [nd. 506. See, also, Kegg v. Welden, 
 there is an issue of law undecided is 10 Ind. 550; Waldo v. Richter, 17 Ind. 
 asserted in Gray v. Cooper, 5 Ind. 506; 564. 
 
 Waldo v. Richter, 17 Ind. 634; Ander-
 
 THE ASSIGNMENT OF ERRORS. 301 
 
 intimations that it might be done in either mode are clearly 
 wrong inasmuch as there is such a wide difference between the 
 two motions. To show the essential difference it is only nec- 
 essary to mention one important phase of it, and that ma}' be 
 done by suggesting that a motion in arrest cuts off a motion 
 for a new trial. 1 We venture to suggest that a motion in arrest 
 is not the proper mode of presenting the question, for the ques- 
 tion ought, upon principle, to be presented before trial, or else 
 all objections should be regarded as waived. This conclusion 
 is supported by the cases which hold that parties by going to 
 trial without objection waive the formation of issues. 2 The 
 rule which best harmonizes with decisions in analogous cases 
 requires that objections should be specifically stated before en- 
 tering upon the trial, and that the ruling on the objections 
 should be assigned as one of the causes for a new trial. This 
 rule is fair to the court and to the parties and is required by 
 considerations affecting the consistency of the system of pro- 
 cedure. There is seldom any reason for creating exceptions 
 to the settled and salutary rule which requires that objections 
 should be specific and should be opportunely presented. To 
 permit parties to make questions of the kind we have under 
 immediate mention would, it may be added, be an indefensible 
 violation of the rule prohibiting parties from talcing the chance 
 of success on the trial and afterwards interposing an objection 
 that might quite as easily have been made before the trial began. 
 
 § 353. Amendment of the Assignment of Errors — Amendments 
 of the assignment of errors can not be made after the cause is 
 submitted except upon leave of court. 3 The application for 
 
 1 McKinney v. Springer, 6 Ind. 453; Warsaw v. Dunlap, 112 Ind. 576; Hart- 
 Doe v. Clark, 6 Ind. 466; Hord v. Cor- lep v. Cole. 101 Ind. 458; Trentman v. 
 poration of Noblesville, 6 Ind. 55; Bep- Eldridge. 9S Ind. 525; Helm v. First 
 ley v. State, 4 Ind. 264; Rogers v. Max- National Bank, 91 Ind. 44; Chambers 
 well, 4 Ind. 243; Mason v. Palmerton, 2 v. Butcher. S2 Ind. 508; Hose v. All- 
 Ind. 117; Gillespie v. State, 9 Ind. 3S0; wine, 91 Ind. 497; Farmers Loan and 
 Weatherhead v. Bray, 7 Ind. 706; Cin- Trust Co. v. Canada, etc., Co., 127 Ind. 
 cinnati, etc., Co. v. Case, 122 Ind. 310. 250. See "Holding parties to Trial 
 
 2 June v. Payne, 107 Ind. 307; John- Court Theories," post, Chapter XXIV. 
 son v. Briscoe, 92 Ind. 367; City of s Rule IV.
 
 302 APPELLATE PROCEDURE. 
 
 leave is required to be in writing and to show that due care and 
 diligence were exercised in preparing the assignment. Ten 
 days' notice of the application must be given.
 
 CHAPTER XVII. 
 
 APPEAL BONDS. 
 
 $ 354- 
 355- 
 356. 
 357 
 
 358. 
 359- 
 
 360. 
 361. 
 362. 
 3 6 3- 
 3 6 4- 
 3 6 5- 
 
 366. 
 
 367- 
 
 Power to exact a bond. § 368. 
 
 Nature of appeal bonds. 369. 
 
 The bond is statutory. 
 
 Rule where there is no jurisdic- 370. 
 
 tion of the matter in which the 371. 
 
 bond is executed. 372. 
 
 The bond is aided by the statute. 373. 
 
 Construction of appeal bonds — 374. 
 General rule. 
 
 Recovery limited by the penalty. 375. 
 
 Interest beyond the penalty. 
 
 The obligation of the bond. 376. 
 
 Mode of executing the bond. 
 
 Form and substance of the bond. 377. 
 
 Right of appellee to require a 37S. 
 well framed and properly ex- 
 ecuted bond. 379. 
 
 Authority of trial court to fix 
 
 the penalty and approve the .380. 
 
 sureties — Conclusiveness of 3S1. 
 
 the order of approval. 3S2. 
 
 Demanding a new bond — Prac- 383. 
 tice. 
 
 Estoppel of the sureties. 
 
 By whom the bond should be 
 approved. 
 
 Informal or irregular approvals. 
 
 Approval may be implied. 
 
 Effect of the approval. 
 
 Evidence of filing and approval. 
 
 The bond as essential to the ef- 
 fectiveness of an appeal. 
 
 Bond not ordinarily essential to 
 jurisdiction. 
 
 Appearing without objecting — 
 Waiver. 
 
 Amending defective bonds. 
 
 Motion to dismiss because of 
 defective bond. 
 
 Promptness required in asking 
 leave to amend. 
 
 Enforcement of the bond. 
 
 What will release sureties. 
 
 Surety's right of subrogation. 
 
 Measure of recovery. 
 
 § 354. Power to exact a Bond — The fundamental principle that 
 the right of appeal to an appellate tribunal is not an inherent or 
 absolute one 1 necessarily leads to the conclusion that the le«;is- 
 
 1 Bowman v. Lewis, 101 U. S. 22, 25 
 Law. ed. 992; Hayes v. Missouri, 120 
 U. S. 68, 30 Law. ed. 578. In Sullivan 
 v. Haug, 82 Mich. 54S, 10 Lawyer's Rep. 
 Anno. 263. it was said: "The right to an 
 appeal is and always has been statutory, 
 and does not exist at common law. It is 
 a remedy which the legislature may in 
 its discretion grant or take away, and 
 it may prescribe in what cases and un- 
 
 der what circumstances and from what 
 courts an appeal may be taken." Schoon- 
 er Constitution r'.Woodworth, 2 111. 511; 
 Ward v. People, 13 111. 635; Ex parte 
 McCardle, 7 Wall. 506; Clark v. Ray- 
 mond, 27 Mich. 456; Prout v. Berry. 2 
 Gill. (Md.) 147; State v. Northern Cen- 
 tral R. Co., iS Md. IQ3. See. ante. Chap- 
 ter V, " What May be Appealed From. - ' 
 But where a right of appeal is given by 
 
 (303)
 
 304 Appellate procedure 
 
 lature may, within constitutional limits, regulate the mode of 
 procedure and prescribe the acts that must be done by a party 
 who desires to perfect an appeal. As the subject is a legisla- 
 tive one the discretion of the legislature can not be controlled 
 by the courts although the courts may adjudge enactments which 
 violate the constitution to be void. Within the limits of its con- 
 stitutional powers the legislature may make any condition or 
 prescribe any terms it deems proper. It is, therefore, within the 
 power of the legislature to exact a bond as a condition of the 
 exercise of the right of appeal and to prescribe the form and 
 terms of the obligation. The power has often been exercised 
 in this State, as in the case of appeals from judgments of jus- 
 tices of the peace, appeals in term and appeals from interlocu- 
 tory orders and decrees. 
 
 § 355. Nature of Appeal Bonds — It is said by a text-writer that 
 an appeal bond is an official bond, 1 but this is true only in a 
 limited and qualified sense. An appeal bond is, it is true, an 
 obligation prescribed by statute and it is given in the course of 
 judicial proceedings, but it is not executed to secure the per- 
 formance of official duties nor to give the State or any of its 
 instrumentalities a right of action for a breach of official duty. 2 
 The principal object of the law in requiring an appeal bond is 
 to secure an individual litigant from loss. The State or its in- 
 strumentalities may, no doubt, enforce an appeal bond in many 
 instances but not in an)- purely governmental capacity. Where 
 the State, or its municipalities, can enforce an appeal bond it 
 
 law it is not in the power of t lie judi- is, however, a radical difference between 
 
 ciary to deny or to restrict it. Heffren the two kinds of bonds, and the term 
 
 v. (avne. 39 Ind. 403, 470; Martin v. "appeal bond" is sometimes mislead- 
 
 Martin, 6 Blackf. 321; Robinson v. ing, inasmuch as it creates the impres- 
 
 Roberts, 16 Fla. 156. sion that a bond is always essential to 
 
 1 Murfree on Official Bonds, § 36. an appeal. It is true that a bond is 
 
 2 The term " appeal bond " is ageneric often essential to the appeal, hut, as will 
 one and, as ordinarily used, includes be hereafter shown, it is not generally 
 bonds that are strictly appeal bonds as essential to the effectiveness of the ap- 
 well as supersedeas bonds. Weconform peal, although it is indispensably nec- 
 to the usual practice and here employ essary to secure a supersedeas or stay 
 the term " appeal bond " as a generic one of proceedings. 
 
 including both kinds of bonds. There 

 
 APPEAL BONDS. 305 
 
 is ordinarily because the bond is executed to it as a party to the 
 judgment appealed from and in all such cases the State, or its 
 organ, asserts a contract right and not a governmental one. 1 
 A bond executed to secure a stay of proceedings, or to perfect 
 an appeal, is a contract vesting in the obligee a right of action 
 in the event that its conditions a^e broken. The fact that it is 
 executed in the course of judicial proceedings and to the ap- 
 proval of a judicial or ministerial officer does not make it strictly 
 an official bond. It lacks many of the incidents of such a bond 
 as, for instance, its mere execution does not ordinarily create a 
 lien upon the property of the obligor, nor does the lien fasten 
 upon the property at the time the action on it is commenced. 
 It is not given the extraordinary effect of an official bond. It 
 is executed in a particular instance and is not a general or con- 
 tinuous obligation. 
 
 § 356. The Bond is Statutory — An appeal bond regularly exe- 
 cuted in the course of judicial proceedings because required by 
 law is a statutory bond. As the bond is statutory the provisions 
 of the statute must be given consideration in determining the 
 effect of the obligation. It is, indeed, a general rule that the 
 law enters as a silent but influential factor into all contracts. 2 
 This general rule must, it is obvious, apply with peculiar force 
 to a bond executed by a party because he is bidden by an ex- 
 press statute to execute it as a condition to his obtaining aid 
 from the judicial tribunals of the State. 
 
 1 This proposition rests upon the 301; Lowry v. Francis, 2 Yerg. 534; 
 well known rule that where a State en- Grogan v. San Francisco, iS Cal. 590. 
 ters into a contract it lays aside its at- 2 Longr. Straus, 107 Ind.94; Cogges- 
 tributes and prerogatives as a sovereign hall v. State, 112 Ind.561; Carr v. State 
 and acts substantially as an individual 127 Ind. 204, 11 Law. Anno. Rep. 370, 
 citizen. Its contracts are interpreted 372; Foulks v. Falls, 91 Ind. 31^,320; 
 as are the contracts of individuals. HudsonCanal Co. v. Pennsylvania Coal 
 Hans v. Louisiana, 134 U. S. 1; Hart- Co., 8 Wall. 276, 2SS. In the case first 
 man v. Greenhow, 102 U. S. 672, 679; cited it was said: "All contracts have 
 Poindexter v. Greenhow, 114 U. S.270; imported into them legal principles 
 Keith v. Clark, 97 U. S. 454; Murray which can no more be varied bv parol 
 v. Charleston, 96 U. S. 432; Carr v. evidence than the strongest and clear- 
 State, 127 Ind. 204, 11 Law. Anno. Rep. est express stipulations." 
 370; Georgia, etc., Co. v. Nelms, 71 Ga. 
 
 20
 
 306 
 
 Al'I'I LLATE PROCEDURE. 
 
 is 357. Rule where there is no Jurisdiction of the matter in which 
 the Bond is executed — It is generally held that statutory bonds 
 executed in a matter where there is no jurisdiction of the sub- 
 ject are not enforceable, but the doctrine lias not met with de- 
 cided or uniform approval. 1 The rule is at best a harsh one 
 and in many instances is productive of injustice, so that, as it 
 seems to us, it is one to be restricted rather than enlarged. 
 The authoritative decisions do, indeed, confine the rule to cases 
 where there is an entire want of jurisdiction of the subject, and 
 refuse to extend it to cases where there is nothing more than a 
 defect, although it is such a defect as would warrant a dismissal 
 upon an appropriate and timely objection. 2 It does not always 
 follow that a bond taken without authority is void, since there 
 are cases in which a bond attempted to be given under a stat- 
 ute may be ineffective as a statutory bond and yet enforceable 
 as a common law bond. 3 There is a disposition, and it is a 
 
 1 Caffrey v. Dudgeon, 3S Ind. 512, S. 
 C. 10 Am. Rep. 126; Ham 7'. Greve, 41 
 Ind. 531; State v. McLaughlin, 77 Ind. 
 33^; State v. Younts, 89 Ind. 313; Olds 
 7\ State, 6 Blackf. 91 ; Wilson 7'. Hob- 
 day, 4 M. & S. 121; Commonwealth 7'. 
 Jackson, 1 Leigh. 4S5; Sherry v. Fores- 
 man, 6 Blackf. 56; Byers v. State, 20 
 Ind. 47; Benedict 7'. Bray, 2 Cal. 251. 
 See, also, Sheeley 7>.Wiggs, 32 Mo. 398, 
 Deardorf 7'. Ulmer, 34 Ind. 353; 
 Garnet v. Rogers, 52 Mo. 145; Smith v. 
 St. Louis, etc., Co., 53 Mo. 33S; Hessey 
 v. Heitkamp, 9 Mo. A pp. 36. The rule 
 \\a> applied to a case wherein the bond 
 was not tiled within the time limited by 
 statute in Moore 7'. Damon, 4 Mo. App. 
 111. It is to be said of Deardorf 7'. Ul- 
 mer. that it carries the rule very far and 
 that its scope is much limited by subse- 
 quent decisions, it indeed, some of its 
 declarations are not completely over- 
 thrown. Fawkner v. Baden, 89 Ind. 
 ml cas,s cited in the following 
 note. See, also. Eddy v. Beal, 34 Ind. 
 159. Memmler 7'. Roberts, Si Ga., 659, 
 8 S. E. Rep. 525, supplies an example 
 
 of the just application of the general 
 doctrine stated in the text. 
 
 2 Trueblood 7'. Knox, 73 Ind. 310, 311 
 Sammons v. Newman, 27 Ind. 508; 
 Carver 7'. Carver, 77 Ind. 49S; Bugle v. 
 Myers, 59 Ind. 73; Wiseman v. Lynn, 
 39 Ind. 250; Peele 7'. State, 1 iS Ind. c; 1 2, 
 517; Lucas v. .Shepherd, 16 Ind. 368; 
 Gray v. State, 78 Ind. 68; Harbaugh :■. 
 Albertson, 102 Ind. 69; Cunningham r\ 
 Jacobs, 120 Ind. 306. In Stevenson v. 
 Miller, 2 Litt. (Ky.), 306, 310, and Gudt- 
 ner 7'. Kilpatrick, 14 Neb. 317, the rule 
 that a bond is void where there is no ju- 
 risdiction is opposed and limited. The 
 doctrine we have indicated in the text 
 as the correct one is sustained by tin- 
 decision in the case of Robertson v. 
 Smith (Ind.), 28 N. E. Rep. 857. 
 
 3 Turner v. Armstrongs Brad. (111. 
 App.) 24; Sheppard 7'. Collins. 12 la. 
 ^70; Barnes v. Webster, 16 Mo. 25S; 
 Williams 7'. Coleman, 49 Mo. t,:$\ 
 Cunningham 7'. Jacobs, 120 Ind. 306. 
 A bond taken in violation of law is in- 
 operative, but a bond is not necessarily 
 void where it is executed under a stal
 
 APPEAL BONDS. 307 
 
 commendable one, on the part of the courts, to enforce bonds 
 given in legal proceedings wherever it appears that the party 
 whose duty it was to execute a bond has received benefit from 
 the bond, although it may not be well executed and although 
 there may be some defect of a jurisdictional nature but not of 
 such a character as to completely deprive the tribunal of juris- 
 diction. 1 Weight is attached — justly, as we believe — by the 
 better considered cases to the fact that the bond has yielded 
 the principal obligor beneficial consideration. But upon this 
 point the decisions are conflicting. The conclusion stated is in 
 some instances promoted by an application (and, possibly, ex- 
 pansion), of the doctrine of estoppel. 2 The principle that 
 where an appeal bond operates as the parties intended it should 
 operate, and secures all the rights that a perfect bond could 
 secure, the obligors will be held liable is often applied, and so 
 applied as to make the obligation effective against all the oblig- 
 ors, sureties as well as principals. By virtue of this manifestly 
 sound and equitable rule courts are enabled to disregard errors 
 and irregularities even of a jurisdictional nature, and give such 
 effect to appeal bonds as makes them fully subserve the pur- 
 poses for which they were executed by the obligors. 3 
 
 §358. The Bond is aided by the Statute — The statute under 
 which parties assume to execute an appeal bond may properly 
 be resorted to in order to enable the court to give just effect to 
 the provisions of the instrument. That statute, even without 
 
 ute but is not enforceable as a statutory 120 Ind. 247; Buchanan v. Milligan, 
 bond. Baker v. Board, 53 Ind. 497. 125 Ind. 332; Riley v. Mitchell, 38 
 See, generally, Pennsylvania, etc., Co. Minn. 9, 35 N. W. Rep. 472; Robertson 
 v. Cook, 123 Pa. St. 170, 16 Atl. Rep. v. Smith (Ind.), 28 N. E. Rep. 857. 
 762; Pray v. Wasdell, 146 Mass. 324; The principle asserted by the cases re- 
 Goodwin v. Bunzl, 50 N. Y. Superior ferred to in this and in the preceding 
 Ct. 441. note is a general one and governs to a 
 
 1 Willis v. Rivers, 80 Ga. 556, 7 S. E. great extent all statutory bonds or un- 
 Rep. 90; Com. v. Wetzel, S4 Ky. 537, dertakings. 
 
 2 S.W. Rep. 123; Smith v. Biscailuz, 84 3 Easter v. Acklemire, 81 Ind. 163; 
 
 Cal. 344, 21 Pac. Rep. 15; Riley v. Jones v. Droneberger, 23 Ind. 74; Ham 
 
 Mitchell, 3S Minn. 9, 315 N.W. Rep. 472. v. Greve 41 Ind. 531 ; State v. Britton, 
 
 2 Trueblood t*. Knox, 73 Ind. 310, 311; 102 Ind. 214; Smock t>. Harrison, 74 
 Carver v. Carver, 77 Ind. 49S; Beeman Ind. 34S; Railsback v. Greve, 58 Ind. 72. 
 v. Banta, 113 N.Y. 615; Hartlep f.Cole,
 
 308 APPELLATE PROCEDURE. 
 
 the aid of the statute expressly providing that defects shall not 
 vitiate a bond given pursuant to law, may exert an important 
 inlluence upon the question of the effectiveness and meaning 
 of the bond. Defects may often be cured, ambiguities removed 
 and obscurities cleared away, by considering the provisions of 
 the statute under which the bond was executed, the purpose it 
 was intended to subserve and the object it did actually accom- 
 plish. 1 But the examination is not to be confined to the statute 
 under which the obligors assumed to execute the bond. The 
 curative statute is broad and comprehensive, and heals defects 
 in bonds executed in the course of legal proceedings. 2 
 
 § 359. Construction of Appeal Bonds — General rule — Independ- 
 ently of the curative statute, the construction of bonds required 
 by law to be executed to the approval of public officers should 
 be liberal in favor of the obligees. This doctrine was long since 
 declared and the reasons upon which it rests exhibited 3 The 
 reports contain many cases wherein the rule of liberal construc- 
 tion is asserted and enforced. 4 
 
 § 360. Recovery limited by the penalty — It is an elementary 
 rule that courts can not make contracts for parties but can only 
 give effect to a contract according to the agreements and stipu- 
 lations embodied in the instrument evidencing the contract. 
 This rule forbids the court from substituting entirely different 
 provisions for those written in an appeal bond. Defects and 
 
 1 Stevenson v. State, 71 Ind. 52; 'Conner v. Paxson, 1 Blackf. 207. 
 Yeakle v. Winters, 60 Ind. 554; State * McCarty v. State, 1 Blackf. 240; 
 v. Berg, 50 Ind. 496. Dyer v. Bradley, SS Cal. 590, 26 Pac. 
 
 2 Ward ;'. Buell, 18 Ind. 104; Opp v. Rep. 511; Smith r. Nescatunga, 36 Kan. 
 Ten Eyck. 9) Ind. 345, 346; Sturgis v. 758, 14 Pac. Rep. 246; Baldridge v. 
 Rogers, 26 Ind. 1; Hudelson v. Arm- Penland, 68 Tex. 441, 4 S.W. Rep. 565; 
 
 I tiiI. ij(j; Fuller v. Wright, 59 Peoples Co. v. Babinger, 40 La. 247, 4 
 
 I ,ui -333i Black v. State, 58 Ind. 5S9; So. Rep. 82; Acker v. Alexandria, etc., 
 
 Cook v. State, 13 Ind. 154; Gavisk v. Co., S 4 Va. 64S, 5 S. E.Rep.6SS; Field 
 
 McKeever, 37 Ind. 484; Dunn v. Crock- v. Schricher, 14 Iowa, 119; Gay v. Par- 
 
 er, ^2 Ind. 324; Corey v. Lugar. 62 Ind. part, 101 U. S. 391; Kountze v. Omaha 
 
 60. The cases of Malone v. McClain, Co., 107 U. S. 37S; Matthews v. Mor- 
 
 3 Ind. 532, and Epstein v. Greer, S5 Ind. rison, 13 R. I. 309. 
 372, can not be fully accepted as ex 
 pressive of the law.
 
 APPEAL BONDS. 309 
 
 imperfections may be supplied but a new and different contract 
 can not be framed by the courts. 1 In some cases this rule has 
 been very strictly enforced and the parties held closely to the 
 words of the instrument, 2 but, as we have already indicated, 
 there is no reason for an illiberal, narrow, or technical con- 
 struction of appeal bonds. 3 It has, however, long been the 
 doctrine of our court that sureties can not be held liable beyond 
 the penalty expressed in the bond in cases where a penalty is 
 fully designated. The rule is otherwise where no penalty is 
 designated, for in such a case the law will hold the "obligors 
 liable to the extent required by the statute." 4 It is not easy in 
 any case to uphold the doctrine that the penalty is an absolute 
 limitation in view of the statutory provision that the obligors 
 shall be bound "to the full extent contemplated by law." 5 It 
 is, at all events, difficult to find a sufficient reason for allowing 
 the penalty to fully control in cases where the bond clearly re- 
 cites the judgment appealed from, and the record shows the 
 judgment to be for a fixed and clearly designated sum. 6 It 
 would seem that in such a case the obligation should be deemed 
 to secure the payment of the sum fixed bv the judgment named 
 or described, since it is plainly the purpose of the statute that 
 the bond shall afford such security. Where the judgment ap- 
 pealed from is not for any fixed and designated sum it may 
 
 1 Sturgis v. Rogers, 26 Ind. 1. that the rule for the construction of 
 
 2 Boulden v. Estey Organ Co. (Ala.), an appeal bond should be liberal. 
 
 9 So. Rep. 2S3; Jones v. Woodstock * Ward v. Buell, iS Ind. 104; King 
 
 Iron Co, 90 Ala. 545, 8 So. Rep. 132; v. Brewer, 19 Ind. 267; Sharpe v. Hard- 
 
 Garrett v. Shove, 15 R. I. 538,9 Atl. R. ing, 21 Ind. 334; Graeter v. De Wolf, 
 
 901; Frevert v. Swift, 19 Nev. 400, 13 112 Ind. 1. 
 
 Pac. Rep. 6. See, also, Figures v. Dunk- 5 R. S. 1SS1, § 1221. 
 
 lin. 68 Tex. 645, 5 S.W.Rep.503; Jack- 6 In Opp v. Ten Eyck, 99 Ind. 345, 
 
 son v. Relf, 24 Fla. 198, 4 So. Rep. 534; 34S, it was said, in speaking of the stat- 
 
 Freest^. Baker (Tex.), 6 S.W. Rep. 563; ute, " The force and effect of this section 
 
 Harmon v. Herndon, 99 N. C. 477, 6 S. is to cure defects and supply omissions 
 
 E. Rep. 411. in the class of bonds named, whether 
 
 3 It is not to be expected that public the defects be of form or substance, and 
 officers will as vigilantly and carefully to hold the obligors, both principals and 
 guard the interests of a party as the sureties, to the full extent of the law re- 
 party would himself do, and it is with quiring the bond." This seems sound 
 reason that many of the courts assert doctrine, but not easily reconciled with 
 
 other decisions.
 
 310 A.PPELL VTE PROCEDURE 
 
 well be held that the penalty limits the liability on the bond, but 
 where the bond recites the purpose for which it was executed, 
 describes the judgment and shows it to be for a fixed sum, there 
 is difficulty in sustaining the doctrine of some of the cases that 
 the penalty limits the recovery. There is strong reason for 
 condemning a doctrine which bends the recitals and statements 
 of the bond, aided as they are by statute, to the single clause 
 designating the penalty. 
 
 §361. Interest beyond the penalty — The rule declared by the 
 cases referred to in the preceding paragraph does not, however, 
 go to the extent of denying a recovery for interest which ac- 
 crues subsequent to the execution of the bond. We think that 
 interest upon the sum covered by the bond which accrues after 
 the execution of the bond, may be recovered, although to award 
 it may increase the liability of the obligors beyond the sum des- 
 ignated as the penalty. The effect of the statute is, at the very 
 least, to make the bond a security for the sum covered by the 
 penalty, and the interest on that sum attaches as an incident of 
 the principal. It seems clear that it can not be justly affirmed 
 that a party is liable for a principal sum and yet not liable for 
 an inseparable incident of the principal. The doctrine we as- 
 sert may be enforced without departure from former decisions, 
 and it is certainly strongly fortified by authority. 1 We do not say 
 that the bond should be so construed as to give a right to costs 
 and interest which accrued before its execution in cases where 
 the penal clause fixes a definite and specific sum and thus limits, 
 as our cases hold, the liability of the obligors ; what we do say is 
 that interest and costs which accrue after the execution of the 
 bond are incidents not so provided for or covered by the penalty 
 as to exclude the right to re'cover such interest and costs. The 
 penal clause should not, as we think, be permitted to overreach 
 
 ■ [ves -. Merchants' Bank, 12 How. v. Morris, io Leigh, 284; Marshall v. 
 
 U. S. 159; United States r». Arnold. 1 Minter, 4.3 Miss. 666; Fraser v. Little. 
 
 5}S; Crane v. Andrews, 10 Col. 13 Mich. 195; Hughes v. Hughes, 54 
 
 265; Brainard v. Jones, iS N. Y. 3$; Pa. St. 240; Allen v. Grider, 24 Ark. 
 
 Washington, etc., Co. v. Colton. 26 271; Roulain v. McDowall, 1 Bay. 490; 
 
 Conn. 42; Carter v. Thorn, [8 T>. Mon, Smedes v. Hooghtaling, 3 Caines, 4S. 
 613; Pitts f.Tilden. 2 Mass. nS; linker
 
 APPEAL BONDS. 31 J 
 
 all other considerations and provisions, and rigidly establish 
 the measure of liability. The penalty of an ordinary bond 
 measures the liability up to the time of breach but does not ex- 
 tend further, so that it is simply the limit of the liability at the 
 time the condition of the obligation is broken, and certainly 
 there is no reason for applying a more liberal rule in favor of 
 obligors to appeal bonds. We m'ay say, in conclusion, that we 
 understand it to be affirmed by our decisions and by those of 
 other courts, 1 that a recovery upon an appeal bond can not ex- 
 ceed the penalty of the bond in a case where the claim is wholly 
 based upon something which occurred prior to the execution of 
 the bond, but we do not understand that this rule applies to a 
 claim such as that of one who asserts a right to interest accru- 
 ing subsequent to the breach, and there is, certainly, no suffi- 
 cient reason for the extension of the rule which gives such force 
 to the penal clause and so little to the provisions of the statute 
 requiring the bond, to the statements in the body of the bond 
 itself, as well, as to the provisions of the healing statute. In 
 view of the fact that there can be little or no difficulty in ascer- 
 taining the object the parties intended the bond to accomplish, 
 and of the broad healing statute, there is reason for a limitation 
 of the rule, or, at all events, for a refusal to further extend its 
 operation. 
 
 § 362. The Obligation of the Bond — An appeal bond is not an 
 obligation binding the obligors to pay the judgment appealed 
 from at all events, but it is, it may be said in a general way, a 
 contract undertaking that the party appealing shall prosecute 
 his appeal to a favorable judgment in the appellate tribunal. 
 If the judgment from which the appeal is prosecuted is reversed, 
 the obligors are relieved from liability. 2 Where the appellant 
 fails to prosecute his appeal to effect the bond is operative al- 
 
 1 Graeter v. De Wolf, 112 Ind. i; Wilder, 13 Fed. Rep. 707; Farrar v. 
 
 Leggett v. Humphreys, 21 How. U. S. United States, 5 Peters, 373, 3S5. 
 
 66; United States v. Rickett, 2 Cranch 2 Ring v. Mississippi River Bridge 
 
 C. C. 553; Bank of Mount Pleasant v. Co., 57 Mo. 496; Staler v. Howard, 7 
 
 Sprigg, 1 McLean, 17S; Lawrence v. Mo. App. 377. See Sauer v. Griffin, 67 
 
 United States, 2 McLean, 581; The Mo. 654. 
 Wanata, 5 Otto, 600, 617; Wallace v.
 
 312 
 
 APPELLATE PROCEDURE. 
 
 though the appeal is disposed of by an order of dismissal. 1 
 The sureties become liable when the judgment of affirmance, or 
 other judgment fully adverse to the appellant, takes effect, and 
 the obligee is not bound to first exhaust the property of the 
 principal obligor. 2 In general the effect of an appeal bond is 
 to bind the obligors, one and all, to perform the order or judg- 
 ment affirmed, 3 but this is a general doctrine and can not be 
 applied in every instance, since much depends upon the sub- 
 stantive provisions of the bond or undertaking filed in the par- 
 ticular case. 4 It is, indeed, not possible to lay down a general 
 rule that will justly apply to all cases, for there are cases where 
 the appeal presents questions not involved in the principal 
 judgment or decree. Thus, in the case of an appeal by a jun- 
 ior mortgagee, against whom no personal judgment is rendered, 
 it would be manifestly unjust to hold that the appeal bond 
 bound him and his sureties to pay the claim of the senior mort- 
 gagee. 5 It is upon the same general principle as that involved 
 in the class of cases to which we have just referred that it is 
 
 1 Wood v. Thomas, 5 Blackf. 553; 
 Legate v. Marr, S Blackf. 404; Davis 
 v. Sturgis, 1 Ind. 213; Reeves v. An- 
 drew.-, 7 Ind. 207; Keitzinger v. Rey- 
 nolds, 11 Ind. 54,5; Blair v. Kilpatrick, 
 40 Ind. 312. In Gavisk v. McKeever, 
 37 Ind. 4S4, it is held that a failure to 
 perfect an appeal is a breach of the 
 bond. This is correct upon the ground 
 that if the judgment below remains ef- 
 fective the appellant has neither per- 
 formed what the judgment required nor 
 prosecuted his appeal to effect. See, 
 
 erally, Stelle :■. Lovejoy, 125 111. 
 352. 354; Pass v. Payne, 63 Miss. 239; 
 Coon v. McCormick, 69 Iowa, 539. But 
 where an appeal is dismissed for some 
 t in taking it and a second is taken 
 and successfully prosecuted we -appose 
 that the obligors would not be liable 
 for the amount of the judgment subse- 
 quently reversed. 
 
 2 Railsback v. Greve, 58 Ind. 52. 
 This principle was applied in a case 
 
 where the decree affirmed bound specific 
 property. Staley V. Howard, 7 Mo. 
 A pi'- 377- 
 
 3 1 1 inkle v. Holmes, S5 Ind. 405; Ross 
 v. Swiggett,i6 Ind. 433; Hodge v. Hodg- 
 don, S Cush. 294; Erickson v. Elder, 34 
 Minn. 370; Whitehead v. Thorp. 22 
 Iowa, 425. See, generally, Mason v. 
 Smith, 11 Lea. (Tenn.) 67, 69; Matlock 
 V. Bank of Tennessee, 7 Yerg. (Tenn.) 
 
 9°' 95- 
 
 4 Reitan v. Goebel, 35 Minn. 384; 
 
 Sturgis v. Rogers, 26 I ml. 1. 
 
 5 Willson v. Glenn, 77 Ind. 585; 1 1 in- 
 kle v. Holmes, 85 Ind. 405; Scott v. 
 Marchant, SS Ind. 349. If the appeal 
 of a junior mortgagee keeps the senior 
 mortgagee out of his money, then it 
 seems that the former should recover 
 interest that accrues subsequent to the 
 appeal. If, however, the appeal of the 
 junior mortgage does not delay the en- 
 forcement of the senior lien, it would 
 not be just to hold him for interest.
 
 APPEAL BONDS. 313 
 
 held that, although the right to the possession of land is in- 
 volved in an action in which a judgment appealed from is 
 rendered, a bond which covers only the money judgment ren- 
 dered in the action will authorize a recovery only for the prin- 
 cipal, interest and costs of such judgment, and that mesne rents 
 and profits can not be recovered in an action upon the bond. 1 
 A bond may, however, be so framed as to bind the obligors for 
 the payment of rents and profits. That a bond may be so 
 framed as to cover rents and profits is, indeed, expressly pro- 
 vided by the statute. 2 But the statute applies only where pos- 
 session is retained or held during the pendency of the appeal. 
 
 § 363. Mode of Executing the Bond — The courts generally ap- 
 ply a very liberal rule to matters respecting the signing of the 
 bond and the like. The place where the names of the obligors 
 are signed to the bond is held to be of no importance provided 
 it can be inferred that the signers intended to bind themselves 
 as obligors. 3 It is held that the appellants need not sign the 
 instrument if it be signed by the sureties. 1 It is, of course, the 
 right of an appellee to require that the bond be executed by 
 such surety, or sureties, as the law requires, and the failure of 
 the appellant to furnish a bond with such surety, or sureties, 
 would, in a case where the bond is essential to the appeal, en- 
 title the appellee, upon motion, to a dismissal of the appeal, 5 
 
 1 Carver v. Carver, 115 Ind. 539. etc., 48 Mich. 641; Seward v. Corneau, 
 
 2 R. S. i88i,§ 638. The statute pro- 102 U. S. 161; Parks v. Hazlerigg, 7 
 vides that a bond covering waste and Blackf. 536; State v. Soudriette et a/., 
 damage to property, as well as mesne 105 Ind. 306; Cooke v. Crawford, 1 
 rents and profits, may be required of a Texas, 9, 46 Am. Dec. 93. 
 
 partv who retains possession of the 5 Indianapolis, etc., R. Co. v. Beam, 
 
 propertv pending the appeal. It would 63 Ind. 490: Indianapolis, etc., R. Co. 
 
 undoubtedly be the right of the appellee, v. Beam, 64 Ind. 597; McVey v. Heav- 
 
 upon a proper application, to compel enridge, 30 Ind. 100. An attorney may 
 
 the execution of a bond in conformity be bound as surety notwithstanding a 
 
 to the requirements of the statute. rule of court prohibiting attorneys from 
 
 3 Coyle v. Creyy, 34 La. Ann. 339. becoming sureties on such instruments. 
 
 4 Thom v. Savage, I Blackf. 51; Cov- Ohio, etc., v. Hardy, 64 Ind. 454; Banter 
 ert v. Shirk, 58 Ind. 264; Hinkle v. v. Levi, 1 Chit. 713; Harper v. Tahour- 
 Holmes, S5 Ind, 405; Cody v. Filley, 4 din, 6 M. & S. 3S3. Bond not effective 
 Col. 342. See, generally, Hedges v, until delivered. Covert v. Shirk, 58 Ind. 
 Armistead, 60 Texas, 276; Gage Co. r. 264. Not invalidated because it appears 
 Fulton, 16 Neb. 5; Wood v. Wayne, to be dated subsequent to approval.
 
 31 1 
 
 APPELLATE PROCEDURE 
 
 but if the appellee does not object, a bond without a surety 
 will be deemed sufficient. 
 
 364. Form and Substance of the Bond — As we have hereto- 
 fore shown, the rules of the unwritten law, as well as the pro- 
 visions of the statute, require that the construction of the bond 
 shall be liberal for the purpose of giving it the effect the parties 
 intended it to have, and this principle of construction reaches 
 matters of substance as well as matters of form. The statute 
 in terms applies both to matters of form and substance. 1 There 
 can. of course, be little, if any difficulty, in stating or under- 
 standing the general rule, but there is sometimes difficulty in 
 applying the rule to a particular instance. Thus, while a bond 
 may bind the obligors to pay the judgment, it is held that it 
 does not bind them to pay it without relief from the valuation 
 or appraisement laws. 2 So, a bond given in an appeal by one 
 party will not bind the sureties to answer for the result of an 
 appeal taken by other parties/ 5 On the other hand, one who 
 signs as surety is bound, although he was not the surety desig- 
 nated in the order of the court.' 1 
 
 § 365. Right of the Appellee to require a well framed and prop- 
 erly executed Bond — The question as to the validity and effective- 
 ness of a bond assumes a different form in a case where the 
 obligors seek to escape liability from that which it wears in a 
 case where the appellee appropriately and opportunely de- 
 
 James v. Woods, 65 Miss. s-iS, 5 So. 
 Rep. 106. 
 1 R. S. i88i,§§ 657, 658, [221. Ante, 
 
 359- 
 
 8 Ham v. Grew. 41 Ind. 531. See,gen- 
 
 erally, Dingier v. Strawn, 36 111. App. 
 Crumley v. McKinney (Texas). 9 
 S. W. Rep. 157; Chateaugay, etc.. Co. 
 Blake, 35 Fed. Rep. 804; Carver v. 
 Carver, [15 Ind. 539, iS N. E. Rep. 37; 
 1 ■ raid v. Gi raid, 31 S. C. 171,9 s. E. 
 Rep. 274; United States v. Drapier (D. 
 C). iS Wash. L.J. 532; Scott v. Mil- 
 ton (Fla.). 7 So. Rep. 32; Bartlett's 
 Appeal, 82 Me. .mo. 
 
 ' Sturgis v. Rogers, 26 Ind. 1. i- 
 See Ward v. Buell. [8 I ml. 104; Rice 
 v. Rice. 13 Ind. 562; Burchard v. Cavins, 
 77 Tex. 365, 1 1 S. W. Rep. 3S8; Meade 
 v. Bartlett, 77 Tex. v r '. " 1 S. W. Rep. 
 3 SS. 
 
 4 Buchanan v. Milligan, 125 Ind. 332. 
 See, generally, Guez v. Dupuis, 152 
 Mass. 15 (. 25 N. E. Rep. 740; Granier 
 v. Louisiana, etc., Co., 4 2 La. Ann. SSo, 
 S So. Rep. 614: Allison v. Gregory 
 (Texas), [5 S. W. Rep. 410; Anderson 
 : . Hoard (Minn.), 4S X. W. Rep. 1022.
 
 APPEAL BONDS. SI 5 
 
 mands a bond properly worded and executed. The cases are 
 radically different and are governed by very different rules. 
 It is obvious that an appellee who properly and duly demands 
 a bond executed in conformity to the requirements of the law 
 occupies a very different position from that occupied by parties 
 who seek to defeat a recovery upon the bond. Defects not 
 available to defeat a recovery on the bond may be sufficient to 
 entitle an appellee to a new bond. 1 An appellee is not bound 
 to incur the risk, or the expense of an action upon an imper- 
 fect bond, and hence he may, by a seasonable and appropriate 
 application, require that one conforming to the law shall be ex- 
 ecuted, while, on the other hand it is, in strictness, the duty of 
 the party who prosecutes the appeal to execute and file such a 
 bond as the law requires. But even upon the demand of the 
 appellee an order will not be granted requiring a new bond 
 where there is simply an immaterial defect or omission in the 
 bond. 2 
 
 § 366. Anthority of Trial Court to fix the Penalty and approve 
 the Sureties — Conclusiveness of the order of approval — Where the 
 authority to fix the penalty of a bond is vested in the trial court 
 the higher court will not review the action of the lower court 
 in fixing the penalty, unless that action is specifically challenged 
 in the trial court and an exception to its ruling appropriately 
 taken and saved. Ordinarily the action of the trial court in 
 fixing the penalty of the bond concludes the parties, 3 but we 
 
 1 Ruschaupt v. Carpenter, 63 Ind. Williams (Ky.), 12 S. W. Rep. 7,3$; 
 359; Harper v. Archer, 4 Sm. & Mash. Southern, etc., Co. v. Staley (Texas), 
 99, S. C. 43 Am. Dec. 472; James v. 13 S. W. Rep. 4S0; Howard v. Russell. 
 Roberts, 7S Tex. 670, 15 S. W. Rep. 11; 75 Texas, 171, 12 S.W. Rep. 525; Littell 
 Frank v. Thomas, 35 111. App. 547. See, v. Bradford, S Blackf. 1S5; Ridabock v. 
 generally, Richardson v. Richardson, Levy, 8 Paige, 197, 35 Am. Dec. 6S2; 
 S3 Mich. 653, 47 N.W. Rep. 500; Corey Shelton v. Wade, 4 Tex. 14S, 51 Am. 
 v. Lugar, 62 Ind. 60. Dec. 722. 
 
 2 Carmichael v. Hollowaj', 9 Ind. 519; 3 It is, of course, only where the law 
 McCall v. Trevor, 4 Blackf. 496; Win- commits to the trial court the duty of 
 ters v. Hughes, 3 Utah, 438, 24 Pac. fixing the penalty and approving the 
 Rep. 907; Moore v. Alerton (Texas), sureties that the rule applies. Where 
 15 S. W. Rep. 70; Murphy v. Consoli- the appeal is in term and the procedure 
 dated, etc., Co., 32 111. 612. See, upon is under the statute governing such ap- 
 the general subject, Forbes v. Porter, peals authority over such matters exists 
 23 Fla. 47, 1 So. Rep. 336; Mahlman v. in the trial court. R. S. 1SS1, § 63S.
 
 31(3 APPELLATE PROCEDURE. 
 
 suppose that if the appellee should properly and seasonably 
 present his objection to the ruling of the trial court, it would be 
 subject to review upon appeal when properly presented. It 
 would, however, not be subject to review as part of the main 
 controversy, but it may be made a matter for review by due ob- 
 jection in the trial court followed by the appropriate proceed- 
 ings. This is so upon the general principle that rulings of a 
 trial court may be presented on appeal, and for the further rea- 
 son that the appellate tribunals have power to supervise the 
 proceedings of trial courts. But where no objection is pre- 
 sented to the trial court and no decision is requested, or ob- 
 tained, then the higher court can. not disturb the ruling, nor, 
 indeed, can it review the ruling unless the question is properly 
 saved and duly presented on appeal. The general doctrine 
 applies in cases where sureties are accepted by the trial court 
 pursuant to the authority conferred by law. 1 But the rule is a 
 general one and subject to exceptions. If, for instance, the 
 sureties should become insolvent after their acceptance by the 
 trial court, it seems quite clear that the higher court may require 
 a new bond. In such a case the appellate tribunal acts upon a 
 state of facts different from that acted upon by the trial court, 
 so that, after all, the exception is apparent rather than real. 
 It must be in the power of an appellate tribunal to make such 
 orders when conditions change, for when the case gets into that 
 court it is completely out of the jurisdiction of the lower court, 
 and that court can take no steps in the case. It may be added 
 that while it is true that a broad discretion is vested in the trial 
 court in such matters, it is also true that an abuse of the dis- 
 cretion will authorize the appellate tribunal to interfere in case 
 the rulings of the trial court are appropriately brought before it 
 for review. 2 
 
 1 Midland Railway Co. v.Wilcox, in Stafford v. Union Bank, 16 How. 275. 
 
 Ind.561; Eureka Steam Heating Co. v. 'The action of the trial court will, 
 
 man, 67 Wis. [18; Bradlej' v. Gait, however, be sustained unless it is clearly 
 
 5 Mackev l>. C. . ^17; Jerome v. Mc- shown thai there was an abuse of dis- 
 
 \. i\ Wall. 17; Ex parte French, cretion. It is a well settled rule that 
 
 100 U. S. 1. Martin v. Hazard Powder where ruling is made in the exercise of 
 
 13 1 - [02; New Orleans Co. v. a discretionary power the appellate 
 
 Albro Co., 112 U. S. 506. Dnt see tribunals will interfere only where it is
 
 APPEAL BONDS. 317 
 
 § 367. Demanding a New Bond — Practice — Where the appellee 
 desires that the appellant be compelled to file a new bond, be- 
 cause the sureties have become insolvent, 1 or, because the bond 
 is defective, the proper course for him to pursue is to file a mo- 
 tion stating the relief sought and the grounds upon which he 
 bases his right to relief, and give ten days' notice of the motion 
 to the appellant. If a question of fact is presented, then, affida- 
 vits must be filed with the motion, for so the rules of the court 
 require. It may not be out of place to say that it is within the 
 power of the court in cases where a motion is made to dismiss 
 an appeal, to require a new bond and fix a time for filing it, and 
 to decline to dismiss until default of the appellant to file a bond 
 under the order. This has been the practice in cases where 
 the appellant was free from culpable negligence. The safe 
 course for the appellant where the bond is materially defective 
 or the sureties are insolvent is to promptly meet the motion to 
 dismiss by the tender of a new bond, for, granting time after 
 the motion to dismiss is considered is a matter of grace and 
 not of duty on the part of the court. 
 
 § 368. Estoppel of the Sureties — As a general rule sureties are 
 estopped by the recitals of the bond. Under this general rule 
 they are interdicted from denying that an appeal has been 
 taken, except where the bond is void. 2 The judgment against 
 the principal affirmed on appeal is conclusive upon the sureties. 3 
 They are said by some of the courts to be regarded as strangers 
 to the judgment, and, therefore, precluded from attacking it ex- 
 cept for fraud. It is evident that if the judgment were not re- 
 garded as conclusive settled principles would be violated and 
 litigation be almost interminable. The principle is a general 
 one and is sound, since to permit a party who by words or 
 
 clearly made to appear that the discre- s Hydraulic, etc., Co. v. Neumeister, 
 tion was abused in the particular in- 15 Mo. App. 592; McCormack v. Hub- 
 stance, bell, 4 Mont. 87. But while it is true 
 1 Ruschaupt v. Carpenter, 63 Ind. 359. that the surety is estopped by the judg- 
 * Adams v. Thompson, iS Neb. 541 ; raent, it is also true that he is not bound 
 Meserve v. Clark, 115 111. 580. See, by the recital of the bill of exceptions 
 also, McMinn v. Patton, 92 N. C. 371; that he executed the bond. Hydraulic, 
 Bowen v. Reed, 34 Ind. 430. etc., Co. v. Neumeister, supra.
 
 318 
 
 APPELLATE PROCEDURE. 
 
 conduct declares that he has appealed to deny that he did take 
 an appeal would be to violate elementary principles. 1 
 
 § 369. By whom Bond should be Approved — There seems to be 
 some diversity of opinion upon the subject of the strictness with 
 which the statutory provisions respecting the approval of appeal 
 bonds must be observed. It is substantially agreed that the 
 bond must be approved by the officer or tribunal designated 
 unless the approval is impliedly or expressly waived. 2 It is 
 evident that where an officer or tribunal is specifically desig- 
 nated the provision should be complied with in cases where the 
 party for whose benefit the bond is executed insists upon a com- 
 pliance with the law, since, to hold otherwise would be to de- 
 clare that the courts may put upon one officer a duty enjoined 
 by law upon another officer. 3 A bond expressly required to be 
 executed to the approval of an officer designated by statute can 
 not, in strictness, be said to be legally approved when the ap- 
 proval is made by some other officer, for it is cl'ear that only 
 
 1 Krall v. Libbey, 53 Wis. 292. The 
 court, in the case cited, discriminated the 
 case from ^Etna Ins. Co. v. Aldrich, 3S 
 Wis. 107. and Mann v. .Ftna Ins. Co., 38 
 Wis. 1 14, and said: "For here the sureties 
 absolutely hound themselves to pay this 
 very judgment, and why should they 
 not stand by their undertaking. Under 
 the circumstances we certainly see no 
 merit in their demand to open the judg- 
 ment and retry the cause. Were there 
 any pretense that its affirmance was 
 procured through collusion of the par- 
 t ies to it, the sureties would stand on dif- 
 ferent -round." The eases of Way V. 
 Lewis, 115 Mass. 26, and Cutler v. Kv 
 ans, Tbid, 27, were cited. In Wachstet- 
 
 ter l . State, \1 Ind. [66, it was said of 
 
 an appellant: "He ran not appeal in 
 
 fact and have all the hem-tit to be de- 
 rived therefrom and then be heard to 
 say because of some informality in his 
 proceedings to obtain the appeal, he 
 never appealed at all, and thereby es- 
 
 cape the consequences of his appeal. 
 The appellant affirmed by his acts and 
 conduct that he appealed and had the 
 benefit of his appeal, lie can not now 
 be heard to affirm the contrary." 
 
 2 Burk v. Howard, 15 Ind. 219; Jones 
 v. Droneberger, 23 Ind. 74; Scotten v. 
 l)ivclhiss,46 Ind. 301 ; McCloskev v. In- 
 dianapolis, etc., Co., 87 Ind. 20; O'Reilly 
 7>. Edington, 96 U. S. 724; Haskins v. 
 St. Louis, etc., Co., 109 U. S. 106; First 
 National Bank v. Omaha, 96 U. S. 737; 
 Putnam v. Boyer, 140 Mass. 235; Averil 
 v. Dickerson, 1 Blackf. 3; Hardin v. 
 Owings, 1 Bibb. (Ky.) 214; Knight v. 
 People, 11 Col. 308, 17 Pac. Rep. 902. 
 That an express approval may be waived 
 eems to be the prevailing doctrine. 
 Buchanan v. Milligan, 125 Ind. 332. 
 
 ;1 Bui the position of the obligees is 
 not the same as that of the obligors, 
 and to the latter the rule does not al- 
 ways apply.
 
 APPEAL BONDS. 319 
 
 the officer appointed by law has authority to approve. 1 It is the 
 right of a party to have a bond approved by the officer desig- 
 nated by law, for the reason that if that officer is guilty of neg- 
 ligence an action may lie upon his official bond, whereas, if one 
 who has no authority at all in the premises undertakes to ap- 
 prove a bond there would probably be no liability on his official 
 bond. But however this may be, it can not be doubted that a 
 party who duly asserts his rights is entitled to have the law 
 substantially obeyed. It is, of course, competent for the one 
 party to waive an approval, 2 and, on the other hand, a party 
 who has received <«x benefit from the bond, or who has been the 
 cause of injury or delay to another, may be estopped to make 
 any question as to the approval of the bond. 
 
 § 370. Informal or Irregular Approvals — It is not just, nor is it 
 consistent with principle, to apply the same rule to the obligors 
 and the obligees in an appeal bond in cases where the law has 
 not been followed in approving the appeal bond, for there is an 
 important difference in the positions of the respective parties. 3 
 Much of the confusion that exists is owing to the failure to ob- 
 serve the difference in the position of the parties, and, in a 
 
 1 The general principle is illustrated that the approval by the party would 
 
 by the case of Crumley v. Hickman, 92 preclude him from objecting to the bond 
 
 lnd. 3SS, wherein it was held that a upon any ground except that of fraud 
 
 bond required to be executed in one or mistake. 
 
 tribunal could not be executed in an- 3 Upon the general subject see, Clapp 
 other. See, also, Shepherd v. Dodd, 15 v. Freeman, 16 R. I. 344; Hemstead v. 
 Ind. 217; McVey v. Heavenridge, 30 Cargill (Minn.), 4S N. W. Rep. 686; 
 lnd. 100; Scotten v. Divelbiss, 46 Ind. Chemin v. The city of Portland, 19 
 301. These cases mark the difference Ore. 512, 24 Pac. Rep. 103S; McCracken 
 between submitting a bond to a tribunal v. The Superior Court, 86 Cal. 74,24 
 not authorized to take or approve it and Pac. Rep. S45 ; Pacific, etc., Co. v. Bolton, 
 the cases where an insufficient bond is 89 Cal. 154, 26 Pac. Rep. 650; Hanaw ». 
 filed with the proper officer. It is ob- Bailey, S3 Mich. 24. Waiver of objec- 
 vious that there is a material difference tion to the approval of the bond. Win- 
 between submitting a bond to an officer ona. etc., Co. v. First National Bank, 
 having no authority to accept it, and 33 111. App. 630. Withdrawal of ob- 
 the errors of an officer clothed with jections. Manning v. Gould, 90 N. Y. 
 general authority in such matters. 476, 64 How. Pr. 429, 3 Civ. Pro. 58, re- 
 
 * An approval of a bond by the party versing 47 N.Y. Sup.Ct. 387; Ginsburg 
 
 or his attorney is sufficient. Goodwin v. Kuntz, 15 N. Y. Supp. 237. 
 v. Fox, 120 U. S. 775 We suppose
 
 320 APPELLATE PROCEDURE. 
 
 great measure, this confusion may be dissipated by clearly 
 marking the line between the cases where the obligees season- 
 ably and appropriately object to the mode of approval and the 
 cases where the obligors after an affirmance seek to escape 
 liability. If a bond is specifically and promptly objected to 
 there is reason for declaring that the appellant is in fault for 
 not substantially pursuing the course prescribed by law, but 
 where the appeal is prosecuted to a final termination the sure- 
 ties have little or no reason to complain that their principal 
 did not strictly follow the law. It is not easy to perceive any 
 just reason for relieving sureties because of errors in the ap- 
 proval of the bond, for it is not unreasonable to require them to 
 take care that the principal does what the law commands. 1 
 Even where objections are presented in due season and form 
 by the appellee, it is only substantial and probably injurious 
 departures from the mode prescribed by statute that should be 
 permitted to prevail. Harmless errors are disregarded else- 
 where in procedure and so they should be in proceedings rela- 
 tive to the approval of appeal bonds. Our decisions indicate 
 that the court considers the true rule to be that departures from 
 the statute which do no injur}' may be disregarded. 2 Other 
 courts declare and enforce the same general doctrine. 3 It is, 
 indeed, not easy to find any valid reason for heeding errors in 
 the proceedings of parties or officers under statutes (such as 
 ours), which everywhere declare that unsubstantial and harm- 
 less errors and irregularities shall be disregarded. 
 
 1 Granger v. V-.nl.cr, 142 Mass. 186. 3 Asch v. Wiley, 10 Neb. 41; Kim- 
 Where the failure to have the bond ap- brough t\ Pitts, 63 Ga. 496; Holly v. 
 proved by the proper officer is attribut- Perry, 94 X. C. 30; Taylor z>. State. 16 
 able to the fault of the party who pros- Texas App. 514. Put some of the 
 
 :s the appeal — as it generally is — courts require that the provisions of 
 
 it would lie suffering him to take ad- the statute he followed with consider- 
 
 vantagej of his own wrong to relieve able strictness. Travis v. Travis, 48 
 
 him from liability. Hun. 343; Julian :\ Rodgers, S7 Mo. 
 
 2 McCrory v. Anderson, 103 Ind. 12; 229; Henderson t>. Benson, 41 Miss. 218; 
 Miller v. O'Reilly. 84 Ind. [68; Ante, Dunkel v. Wehle, 13 Abb. N. Cas. ( ;S. 
 § 366. Analogous cases declare ami il- It is held by some of the courts that 
 lustrate the general principle. State :•. the approval of the officer extends sim- 
 Trout,75lnd. 563; Ensley v. McCorkle, ply to the sufficiency ot' the sureties, 
 74 Ind. 240; Stone 7'. State, 75 Ind. 235; not to form or substance of the bond. 
 Hawes v. Pritchard, 71 Ind. 166; Miller People v. Leaton, 25 111. App. 45; Peo- 
 v. McAllister, 59 Ind. 491. pie V. Leaton, 121 111. 666.
 
 APPEAL BONDS. 321 
 
 §371. Approval may be Implied — It is not always necessary 
 that the officer charged with the duty of approving a bond 
 should do so expressly, for an approval may be implied from 
 circumstances. 1 As an approval may be implied it must nec- 
 essarily follow that an approval may be proved by parol, and 
 that the parties are not limited to written evidence. So it has 
 been held. 2 This is in harmony with the doctrine that the filing 
 of a paper in a case may be proved by parol, for it is the act 
 and not the mere indorsement that controls. 3 The cases estab- 
 lishing the doctrine just stated are so closely analogous to the 
 cases wherein the question concerns the approval of an appeal 
 bond that they may be properly considered as establishing the 
 general doctrine here stated. 
 
 § 372. Effect of the Approval — Where the trial court is vested 
 with authority over the subject its approval of a bond extends 
 both to the sufficiency of the bond and the solvency of the sure- 
 ties. As we have elsewhere shown, the judgment of the court 
 in such a case prevails on appeal unless there is a clear abuse 
 of discretion or the trial court has acted upon an erroneous 
 principle. 4 Where a ministerial officer approves a bond the 
 approval goes only to the sufficiency of the sureties and does 
 not make an instrument valid and effective that in law is inope- 
 rative. 5 We suppose that the approval of a bond by the trial 
 court is not absolutely conclusive even as to the form and effect 
 of the instrument, for it seems clear that if a bond radically in- 
 sufficient should be approved, the appellee might, 03^ the appro- 
 priate procedure, call in review the action of the trial court. 
 
 § 373. Evidence of Filing and Approval — Unless the evidence of 
 the filing or approval of an appeal bond is required by statute to 
 be in writing, parol evidence of the filing or approval is compe- 
 
 1 Ohio, etc., R. R. Co. v. Hardy, 64 v. Cook, 13 Barb. 326; Johnson r.Craw- 
 Ind. 454; Hanaw v. Bailey, 83 Mich. 24. fordsville, etc., 11 Ind. 2S0; Miller v. 
 
 2 Woodburn v. Fleming, 1 Blackf. 4; O'Reilly, S4 Ind. 168, 169. 
 Miller v. O'Reilly, S 4 Ind. 16S; Mc- * Ante, §366. 
 
 Closkey v. Indianapolis, etc., Co., S7 5 People v. Leaton, 25 111. App. 45; 
 
 Ind. 20. Harris v. Regester, 70 Md. 109, 16 Atl. 
 
 3 Naylor v. Moody, 2 Blackf. 247; Rep. 3S6; People v. Leaton, 121 111.666. 
 .Engleman v. State, 2 Ind. 91; Bishop 
 
 21
 
 322 APPELLATE PROCEDURE. 
 
 tent. Where the statute imperatively requires written evidence, 
 that evidence must, of course, be produced. But where there 
 is no such statutory requirement the question is one of fact, and 
 evidence admissible upon similar questions of fact may be heard. 1 
 In truth, the real and meritorious question in such cases is 
 whether the bond was or was not approved, and the mode of 
 approval is not of controlling importance, except, perhaps, in 
 cases where the mode is definitely prescribed by statute or by 
 a rule of court. 
 
 § 374. The Bond as essential to the effectiveness of an Appeal — 
 
 In a former chapter we incidentally considered the subject of 
 appeal bonds and stated as our conclusion that where a bond 
 is required by the statute, as one of the steps to be taken in 
 perfecting an appeal, then it is essential to the effectiveness of 
 the appeal, but where it is not required an appeal may be pros- 
 ecuted without filing a bond. 2 Whether a bond is or is not es- 
 sential to an effective appeal is to be determined from the stat- 
 ute governing appeals in the particular class of cases, for in 
 many cases there may be an appeal without a bond, while in 
 others a bond is required. In the majority of cases a bond is 
 only required where a supersedeas or stay of proceedings is 
 sought, but this is by no means a universal rule. As we shall 
 hereafter see, an appeal does not ordinarily operate to stay pro- 
 ceedings on the judgment, but in order to have that effect it 
 must usually be supplemented by other proceedings. Confus- 
 ion is avoided by keeping clearly in mind these general rules: 
 
 1 Woodbum v. Fleming, i Blackf. 4; tained." This general doctrine was as- 
 
 McCloskey v. Indianapolis, etc., Co., 87 serted in Simpson t r . Minor, 1 Blackf. 
 
 Ind. 20*, Miller v. O'Reilly, S4 Ind. 229. See, also, Frazer v. Smith, 6 Blackf. 
 
 16S; McCrory v. Anderson, 103 Ind. 210; Lacy v. Fairman, 7 Blackf. 558. 
 
 12. In Woodburn v. Fleming, supra, In speaking of the filing of an instru- 
 
 it was said: " Whether the bond was ment it was said in Slate v. Foulkes, 94 
 
 executed in the clerk's office or not Ind. 493, 496: "The indorsement is 
 
 is a plain question of fact. Although not the material thing; the act of de- 
 
 the bond does not show the plaee where positing the paper with the proper of- 
 
 the bond was executed, yet if the ap- ficer is the essential element of the act 
 
 pedants can prove by other evidence of filing." 
 
 that they are within the law the court 2 Ante, Chapter XIII, "Modes of 
 
 will permit them to do so; if they can Appeal in Civil Actions." 
 not, the motion to dismiss must be sus-
 
 APPEAL BONDS 323 
 
 I. That a bond is not ordinarily essential to the effectiveness 
 of an appeal unless made so by the statute. 1 2. A bond is 
 ordinarily required to secure a stay of proceedings. These, 
 we repeat, are general rules to which there are exceptions, but 
 we need not note the exceptions as the fact that these rules 
 prevail is all that we desire to here make clear, insomuch as 
 this serves our immediate purpose, which is, to mark the dis- 
 tinction between the effectiveness of an appeal to secure a re- 
 view of the rulings of the trial court and its effectiveness in 
 staying proceedings on the judgment. 
 
 § 375. Bond not ordinarily essential to Jurisdiction — As a gen- 
 eral rule a bond is not essential to appellate jurisdiction al- 
 though a bond may be required by the statute which confers 
 the right of appeal as one of the steps in the procedure. But, in 
 saying that a bond is not ordinarily essential to jurisdiction, we 
 do not mean to be understood as implying that a bond is never 
 essential to the effectiveness of an appeal, nor do we mean to 
 imply that a bond may not be made essential to jurisdiction. 
 Where a bond is made essential to jurisdiction then the failure 
 to file it may be fatal. 2 
 
 § 376. Appearing without Objecting — Waiver — In the very great 
 majority of cases an appearance without objecting to the failure 
 to file a bond operates as a waiver. The party who desires to 
 take advantage of the failure to file the proper appeal bond 
 should move for a dismissal of the appeal and give notice of the 
 motion. 3 Ordinarily a dismissal may be prevented by interposing 
 
 1 As we have elsewhere said, it is State ^.United States, 8 Blackf. 252. 
 within the power of the legislature to See, generally, Stafford v. Union Bank 
 prescribe the conditions upon which of Louisiana, 16 How. (U.S.) 135; Silsby 
 appeals may be taken and prosecuted. v. Foote, 20 How. (U. S.) 290; Hard- 
 
 2 M\ r gatt v. Ingham, Wright (Ohio), away v. Biles, 1 Sm. & M. (Miss.) 657; 
 176; McLana v. Russell, 29 Texas, 127; Skidmore v. Davies, 10 Paige, 316. 
 Law v. Nelson (Col.), 24 Pac. Rep. 2; 3 Critchell v. Brown, 72 Ind. 539; 
 Thompson v. Thompson, 24 Wis. 515; Murdock v. Brooks, 3S Cal. 596; Kirk- 
 Wood v. Wall, 5 La. Ann. 179; Clinton patrick v. Cooper, 89 111. 210; Cothren 
 v. Phillips, 7 T. B. Monroe, 1 iS; Young v. Connaughton, -'4 Wis. 134; Thomp- 
 v. Mason, 8 111. 55; Steamboat Lake of son v. Lea, 28 Ala. 453; Blake v. Lyon, 
 the Woods v. Shaw, 1 Greene (Iowa), etc., Co., 75 N. Y. 611; Dillingham v. 
 91; French v. Snell, 37 Me. 100; Com- Skein, Hempst. 1S1. Notice of such a 
 monwealth v. Durham, 22 Pick. 11; motion i-< required by Rule XIV.
 
 APPELLATE PROCEDURE. 
 
 an oiler to file a bond accompanied by an appropriate tender 
 of a bond duly executed, 1 but where a time is imperatively des- 
 ignated within which a bond must be filed a failure to file the 
 bund within the time will be fatal to the particular appeal, 2 un- 
 less the effect of the failure be obviated b} r some valid excuse. 3 
 
 377. Amending Defective Bonds — A defective appeal bond 
 may be supplied by one framed and conditioned as the statute 
 requires, and when the defects are seasonably and appropri- 
 ately remedied the appeal will not fail. 4 Where the parties act 
 in good faith and with reasonable promptness the courts deal 
 with them liberally. The courts, it has been often said, are 
 reluctant to permit an appeal to fail where there has been no 
 culpable fault, although there may be some errors or irregu- 
 larities. 
 
 § 378. Motion to Dismiss because of Defective Bond — A motion to 
 dismiss an appeal because of a defect in the bond, or, because 
 of a failure to file it as the law requires, should be reasonably 
 specific. 5 The rules of good pleading require that motions of 
 this character shculd fully and clearly point out the defects or 
 irregularities so that the adverse party may be informed what 
 questions he is expected to meet. These rules also require that 
 the defects or irregularities specified should be regarded as the 
 only ones upon which the complaining party will insist, and to 
 them he should be held. 
 
 § 379. Promptness Required in Asking Leave to Amend — Where 
 an objection to a bond is made and the appellant desires to 
 remedy the defects or irregularities, he should proceed with 
 
 1 Anson v. Blue Ridge, etc., Co., 23 O'Reilly v. Edington, 96 U.S. 724; Ter- 
 How. 1; Swasey v. Adair, S3 Cal. 136; ritory v. Milroy, 7 Mont. 559, 19 Pac. 
 1> en v. Hemphill, Hempst. 154. Rep. 209; Miller v. O'Reilly, S4 Ind. 
 
 2 King v. McCann, 25 Ala. 471 ; Mays 168; Murphy v. Steele, 51 Ind. Si. 
 v. King, 28 Ala. 690. Bonds may often be amended or re- 
 
 8 Brobsl v, Brobst, 2 Wall. 96; Sey- placed. Morrison v. State, 40 Ark. 
 
 mour v. Freer, 5 Wall. S22. See, gen- 448; Grant v. Connecticut, etc., Co., 
 
 erallv, Thomas v. Georgia, etc., Co., 38 28 Wis. 3S7; Pitnam v. Mvrick. i6Fla. 
 
 Ga 222. 401; McClelland v. Allison, 34 Kan. 155. 
 
 1 Seward v. Corneau, 102 U. S. 161; 5 Bazzo v. Wallace, 16 Neb. 293.
 
 APPEAL BONDS. 
 
 reasonable promptness and diligence. While the courts are, 
 as we have said, very liberal in allowing amendments, 1 still, 
 they will not permit them where the appellant is guilty of 
 laches. If the request is properly and seasonably made a bond 
 may be substituted for one previously filed. 2 Leave to amend 
 or to file a new bond should be asked. 3 
 
 §380. Enforcement of the Bond — In one of the decisions 1 a 
 very strict rule is laid down respecting the enforcement of ap- 
 peal bonds, and if that decision be followed to its logical con- 
 sequences it is necessary for a plaintiff in an action upon an 
 appeal bond to aver that the penalty of the bond was fixed by 
 the court, for, according to that decision, the averment of ap- 
 proval by agreement of parties does not dispense with an order 
 fixing the penalty. We venture to suggest that the decision 
 goes too far, inasmuch as it completely ignores the doctrine of 
 estoppel and attaches no importance to the agreement of the 
 parties. 5 It is impossible to resist the conclusion that the court 
 
 1 As illustrating the rules and prac- ing of the case of Jones v. Droneberger, 
 tice generally, see, Hawthorne v. East 23 Ind. 74, that, " We are not required 
 Portland, 12 Ore. 210; George v. Lutz, in the present case to decide to what 
 35 Texas, 694; Ferguson v. Dent, 29 extent defects may be waived by the 
 Fed. Rep. 1; Kerr v. Martin, 122 Pa. obligee in an appeal bond, as the party 
 St. 436, 15 Atl. Rep. 860; Branger v. who sues on such a bond must either 
 Buttrick, 30 Wis. 153; Gilbank v. Steph- show that it has been executed accord- 
 enson, 30 Wis. 155; Gavisk v. McKee- ing to the statute or that such defect 
 ver, 37 Ind. 484; O'Suflivan v. Connors, has been either expressly or by impli- 
 22 Hun. 137; Carroll v. Jacksonville, 2 cation waived." See op. p. ^37. 
 Ill.App. 4S1; Mcllhaney t\ Holland, m 5 Goodwin v. Fox, 120 U. S. 775. It 
 Pa. St. 634. Excuse for not filing in seems clear that where the parties agree 
 time, what is. Architectural, etc., Co. to the sufficiency of a bond the obligors 
 v. Brooklyn, 85 N. Y. 652. can not take advantage of defects after 
 
 2 State v. Thompson, Si Mo. 163; an affirmance of the judgment appealed 
 Russell v. Bartlett, 9 Wis. 556; Helden from. The recital of the bond that 
 v. Helden, 9 Wis. 557. there was an appeal estops the parties 
 
 s Pulte v. Wayne Circuit Judge, 47 from denying that fact, and the corn- 
 Mich. 646. plaint in the case cited averred that the 
 
 4 Buchanan v. Milligan, 68 Ind. 118. judgment had been affirmed. The bond 
 
 The only case cited is Ham v. Greve, was the foundation of the complaint 
 
 41 Ind. 531, but that case does not sup- and was a proper exhibit. As it was a 
 
 port the conclusion asserted. In Ham proper exhibit its recitals were of con- 
 
 v. Greve, supra, there was no question of trolling effect. Avery v. Dougherty, 
 
 waiver. The court there said, in speak- 102 Ind. 443; Watson, etc.Co. T'.Casteel,
 
 326 APPELLATE PROCEDURE. 
 
 in the case under examination lost sight of the doctrines of 
 waiver and estoppel, and thus, as we believe, fell into error. 
 We think that where the plaintiff in an action upon an appeal 
 bond states facts showing that the bond was taken pursuant to 
 the statute or that compliance with the statute was waived by 
 agreement, that there was an affirmance of the judgment from 
 which the appeal was prosecuted, and that the judgment has 
 not been paid, he shows a -prima facie right of action. 1 It is, 
 as all the well considered cases show, 2 the policy of the law 
 to uphold appeal bonds and not to suffer them to be treated as 
 of no effect where there is a waiver, an estoppel, or a substan- 
 tial compliance with the statute. We suppose it to be clear 
 that the court would not entertain a motion to dismiss an appeal 
 in a case where the appellee has agreed to the sufficiency of the 
 bond, and, certainly, there is much less reason for denying a 
 motion to dismiss in such a case than there is for adjudging 
 the bond valueless upon the demand of the obligors. 
 
 § 381. What will release Sureties — It is said in some of the 
 cases that whatever releases the principal releases the surety, 3 
 but it seems to us that this is a broader statement of the rule 
 than can be safely made. We are strongly inclined to the 
 opinion that the discharge of the principal under a bankrupt 
 law or an insolvent's act would not release the surety, but at 
 present it is not important to consider this question since we have 
 no law of that kind. It may, however, be safely said that the 
 general rule is that whatever releases the principal releases the 
 surety. The rule, like most general rules, is, doubtless, subject 
 to exceptions. But it does not follow that the principal must 
 be released in order that the sureties shall be discharged, for 
 
 73 Ind. 296; Lentz v. Martin. 75 Ind. v. Ray, 1 Idaho (X. S.) 705; Blake v. 
 
 22S. It was properly held that the Lyon, 75 X. V. (<i 1 ; Mix V. People, 86 
 
 transcript did not aid the pleading. 111. 329; Dyer -'. Bradley, 89 Cal. 557, 
 
 Hufff. City of La Fayette, [08 Ind. 14; 26 Par. Rep. 511. It may be true that 
 
 Huseman :•. Sims. n>| Ind. 317. the complaint in Buchanan v. Milli- 
 
 1 Buchanan v. Milligan, 12- Ind. 332. gan, 68 Ind. 11S, is lacking in certainty, 
 
 * Adams v. Thompson. 18 Neb. 541; but the remedy for such a defect is by 
 
 1 Manf. Co. v. Barrett. 94 X. C. motion and not by demurrer. 
 219; State :•. Byrd,93 N.C.624; Miller 3 Cook v. King, 7 111. A pp. 549. 
 7. Holding, 5 Houst. (Del.) 494; Ray
 
 APPEAL BONDS. 327 
 
 the principal may remain bound and the sureties released. 
 Thus, a change in the judgment appealed from made by agree- 
 ment of the appellant and the appellee and without the consent 
 of the sureties, will release them. 1 If time is given the principal 
 without the consent of the surety the latter is released. The 
 instances to which we have referred are nothing more than ex- 
 amples of the familiar doctrine that a surety has a right to 
 stand upon his contract, and that a contract for an extension of- 
 time made with the principal without the surety's consent ex- 
 onerates him from liability. It is barely necessary to suggest 
 that performance by the surety, or due tender of performance, 
 where a tender can be well made, 2 or a reversal of the judg- 
 ment, will release the surety. 
 
 § 382. Surety's Right of Subrogation — A surety in an appeal 
 bond who fully discharges the obligation which rested upon the 
 principal obligor is not only relieved from liability, but he is 
 also entitled to be subrogated to the rights of the creditor whose 
 claim he pays. This doctrine is impliedly asserted in all of the 
 cases referred to in the note to the preceding section ; it is, in- 
 deed, the groundwork of the reasoning, and it is expressly as- 
 serted in others. The doctrine has been declared and enforced 
 by our own court. 3 A reversal of the judgment in whole op- 
 erates, of course, as a release of the sureties, and, as it has 
 
 1 Leonard 7'. Gibson, 6 111. App. 503. 87; Post v. Losey, ill Ind. 75, 60 
 
 2 In Sharp v. Miller, 57 Cal. 415, it Am. Rep. 677; Musgrave v. Glas- 
 was held that where there was a valid gow, 3 Ind. 31; Wilson v. McVey, 83 
 tender and refusal it was equivalent to Ind. 10S, citing Brandt on Suretyship, 
 payment and released the sureties. The 296; Spurgeon v. Smiths, 114 Ind. 453, 
 court cited Solomon v. Reese, 34 Cal. and auth. p. 456. 
 
 28, 36; Hayes v. Josephi, 26 Cal. 535. 3 Peirce v. Higgins, 101 Ind. 178. In 
 There is much force in the reasoning Opp v. Ward, 125 Ind. 241, it was held 
 of the court in the last named case, for as that a guarantor for the performance 
 the surety is entitled to be subrogated of a contract upon which judgment was 
 and to proceed without delay against obtained against the principal and from 
 the principal the refusal of the creditor which the latter had unsuccessfully ap- 
 to accept the money is prejudicial, pealed, was entitled, after paying the 
 The authorities sustain the doctrine, judgment creditors, to be subrogated to 
 Joslyne v. Eastman, 46 Yt. 258; Lewis tlu-ir rights and, by virtue of such sub- 
 s'. Van Dusen, 25 Mich. 351; Hamp- rogation, could maintain an action upon 
 shire, etc.. Bank v. Billings, 17 Pick, the bond against the surety.
 
 328 APPELLATE PROCEDURE. 
 
 been held, the reversal of a judgment in part operates to re- 
 lease the sureties to the extent that it relieves the principal. 
 
 § 383. Measure of Recovery— There is little difficulty in deter- 
 mining the amount of the recovery where the judgment ap- 
 pealed from is for a designated sum of money, for the surety 
 ordinarily becomes bound for principal, interest and costs of 
 the judgment he undertakes to pay. 1 This is the general rule, 
 but "the rule is subject to the exceptions, heretofore noted, that 
 the recovery can not exceed the penalty of the bond and that 
 entirely new and substantial stipulations can not be imported 
 into the bond by the courts. The general rule is not affected 
 by the fact that there may be some other security for the debt. 1 ' 
 It is the general rule in all classes of cases that the bond, if 
 properly framed, covers actual loss. But it is often difficult to 
 determine what shall be considered an actual loss within the 
 meaning of the law. Attorneys' fees are not recoverable in an 
 action on the bond. 3 Rents and profits of land may, under 
 our statute, be recovered in action upon the bond, 4 but, as 
 held in a case already referred to, not in excess of the penalty 
 expressly named in the bond. Rents and profits for property 
 of which the obligor retains possession may be recovered in a 
 case where the appeal operates to stay proceedings upon a 
 bond properly framed, for so our statute provides. 5 The statute 
 to which we refer embraces both real and personal property 
 and gives a comprehensive effect to an appeal bond framed in 
 accordance with its provisions. While the statute is to be taken 
 into consideration in construing a bond purporting to be exe- 
 cuted pursuant to its provisions, it can not, according to the 
 doctrine of our cases, control the express terms and conditions 
 
 1 Graham v. Swigert, 12 B. Mon. 522; Ward, 125 Ind. 241, 244; Stults V. 
 Ives v. Merchants' Bank, 12 How. (U. Zahn, 117 Ind. 297. 
 
 S.i 159; Sessions v. Pintard, iS How. 5 R. S. 1SS1, § 638. 
 
 (U. S.) 106; Talbot v. Morton, 5 Litt. 6 Ante, $$ 358, 359, 360. It is diffi- 
 
 320; Many v. Sizer, 6 Gray, 141. cult, if. indeed, it is not impossible, to 
 
 2 Sessions v. Pintard, iS How. (U. conceive how a bond framed in sub- 
 S.) 106. stantial conformity to the statute re- 
 
 :t Noll -'. Smith, 68 Ind. 1S8. ferred to in the preceding note can be 
 
 * Opp v. Ten Eyck,99 Ind. 315; Hays controlled by the clause designating the 
 v. Wilstach, 101 Ind. 100; Opp v. penalty.
 
 APPEAL BONDS. 
 
 329 
 
 of the bond. 1 The provisions of the statute are mandatory, for 
 they are expressed in very strong and explicit words, and, in 
 the proper case, it is the right of the appellee to demand that 
 there shall be no stay of proceedings unless a bond, such as the 
 statute prescribes, is executed. 2 
 
 1 Ante, § 360, note. 
 
 2 The provisions of the statute to 
 which especial reference is made read 
 thus: "And if the appeal is taken from 
 a judgment for the recovery of real 
 property, or the possession thereof, by 
 the party against whom the judgment 
 for the recovery is rendered, then the 
 condition of the bond shall further pro- 
 vide, that the appellant shall also pay 
 all damages which may be sustained by 
 the appellee for the mesne profits, waste 
 or damage to the land during the pend- 
 ency of the appeal, and if from a judg- 
 ment for the recovery or return of per- 
 
 sonal property, or for such property or 
 its value, then that if he deliver or re- 
 turn the property he will also pa}' the 
 reasonable value of its use, and any 
 damage it may sustain during the pend- 
 ency of an appeal." R. S. 1SS1, § 368. 
 There is some obscurity in the language 
 of the statute, but there can be no doubt 
 as to its general scope and character. 
 While it may be difficult to give a con- 
 struction to some of the words em- 
 ployed, there can be none in determin- 
 ing the chief object intended to be ac- 
 complished.
 
 CHAPTER XVIII, 
 
 STAY OF PROCEEDINGS— SLPKRSEDEAS. 
 
 § 3S4- 
 
 3S5 
 3S6 
 
 3S7 
 3 SS 
 
 339 
 390 
 39 1 
 
 39-- 
 
 Bond required to secure stay of 
 proceedings. 
 
 Effect of an appeal in term. 
 
 Stay by order of appellate tri- 
 bunal. 
 
 Supersedeas — Deli nit ion. 
 
 Application for a supersedeas — 
 Brief. 
 
 Effect of a supersedeas — Gene- 
 rally. 
 
 Stay obtained by one of several 
 appellants — Effect of. 
 
 Supersedeas does not confer a 
 right to do what decree tor- 
 bids. 
 
 Effect of a supersedeas upon 
 self-executing judgments. 
 
 § 393. Effect of a supersedeas where 
 the judgment is self-executing 
 in part. 
 
 394. Duration of tin stay in appeals 
 
 from final judgments. 
 
 395. Duration of the stay in appeals 
 
 from interlocutory order-. 
 
 396. Sureties on a supersedeas bond. 
 
 397. No liability where there is no 
 
 injury, and no promise to pay 
 the judgment. 
 39S. Trial court can not control a 
 supersedeas. 
 
 399. Setting aside a supersedeas — 
 
 Practice. 
 
 400. Motions to dismiss an appeal 
 
 and motions to vacate a super- 
 sedeas. 
 
 § 384. Bond required to secure Stay of Proceedings — It is a gen- 
 eral rule of wide sweep that there can be no stay of proceed- 
 ings where there is no bond or undertaking. An appeal does 
 not necessarily stay proceedings, for there may be an effective 
 appeal, and, yet, the right to enforce the judgment or decree 
 appealed from remain unimpaired. This doctrine prevails in 
 our State and in mam' other jurisdictions. 1 It is safe to say 
 that the rule is that in all appeals from judgments in ordinary 
 civil actions a stay of proceedings is granted only where the 
 
 1 Jones v. Droneberger, 23 Ind. 74; 
 Burl v. Hoettinger, 28 Ind. 214; Rusch- 
 aupt v. Carpenter, 63 [nd.359; Heaton 
 v. Knowlton, 65 Ind. 255; Burkf, How- 
 ard. 15 Ind. 219; Espy v. Balkum,45 -^' a - 
 256; Central Union, etc.,Co. v. Andrews, 
 34 Kan. ^y. Eakle :•. Smith. 24 Mil. 
 
 339, 361 ; Kitchen v. Randolph, 93 U. S. 
 86; Sage v. Central R. Co.. 93 U.S. 412; 
 Hickox v. Elliott, 28 Fed. Rep. 117. 
 Bui merely tiling a bond does not con- 
 stitute an appeal. Pratt v. Western 
 Stage Co., 26 Iowa. 241. A bond may he- 
 waived. Wilson t'. Dean, 10 Ark. 308. 
 
 (330)
 
 STAY OF PROCEEDINGS— SUPERSEDEAS. 331 
 
 proper bond or undertaking is' filed. There are, as we have 
 seen, cases where special statutory provisions give a stay of 
 proceedings without a bond ; there are others, as appeals from 
 interlocutory judgments, and appeals in term, where a bond is 
 essential to the effectiveness of the appeal, but, as a general 
 rule, a bond is essential to a stay of proceedings and only es- 
 sential where that is the object sought to be accomplished. 
 
 § 385. Effect of an Appeal in Terra — An appeal in term duly 
 perfected operates as a stay of proceedings in ordinary civil 
 actions, except, possibly, in cases especially provided for in a 
 peculiar statutory provision. 1 The statute expressly makes an 
 appeal in term operate as a stay of proceedings in ordinarv 
 cases, and there is no room for doubt upon the general ques- 
 tion. 2 The filing of the bond is held to be a condition prece- 
 dent to a right to insist upon a stay. 3 In the case referred to 
 in the note the court declared that it is the filing of the bond 
 which consummates the appellee's right to a stay of execution 
 and ties the hands of the appellant. But it was declared in 
 equally emphatic terms in another case that, "An appeal 
 prayed for in term time and perfected within the time limited 
 suspends all further proceedings." 4 It may be affirmed that 
 where an appeal in term is perfected by the performance of the 
 acts required to make such an appeal effective, the appeal of 
 its own force and vigor operates as a stay of proceedings. It 
 is implied that the transcript must be filed in the higher court 
 within sixty days after the bond is filed as that act is essential 
 to the effectiveness of the appeal. If the transcript is not filed 
 within the time limited the appellee may have execution by 
 complying with the provisions of the statute, but the failure to 
 
 1 R. S. iSSi, § 631. This provision section 638 or not, but it would seem 
 
 reads thus: "The appeal in such case that it has that effect, 
 
 shall not stay proceedings upon the 2 R. S. 1SS1, § 63S. 
 
 judgment unless so ordered by the Su- 3 Mitchell v. Gregory, 94 Ind. 363, 
 
 preme Court or some judge thereof." citing Burk :•. Howard, is Ind. 219; 
 
 The case referred to is that of "a re- Jones v. Droneberger, 23 Ind. 74: Ham 
 
 served question of law" under section v. Greve, 41 Ind. 1531, and Willson z\ 
 
 ■630. It is difficult to determine whether Binford, 54 Ind. 569. 
 
 this peculiar provision restricts those of * June v. Payne, 107 Ind. 307.
 
 :):)■_>_ APPELLATE PROCEDURE. 
 
 file the transcript does not preclude the appellant from perfect- 
 ing an appeal upon notice. 1 
 
 § 386. Stay by order of the Appellate Tribmial — The only mode 
 by which a stay of proceedings can be procured in ordinary 
 civil actions, except by perfecting an appeal in term, is by ob- 
 taining an order from the appellate tribunal having jurisdiction, 
 or from one of the judges of such tribunal. 2 It is but stating 
 this doctrine in another form to say that there is only " one in- 
 stance in which, in view of the appeal, the proceedings in the 
 lower court can be stayed ' without the order of the Supreme 
 Court or a judge thereof in vacation/ namely : ' When the ap- 
 peal is granted during the term, and bond riled with such pen- 
 alty and surety as the court shall approve, within such time as 
 the court shall direct.' " 3 To obtain a stay of proceedings in 
 cases where there is not a perfected term appeal the appellant 
 must file a bond either with the clerk of the trial court or the 
 clerk of the Supreme Court as the appellate tribunal may direct, 
 but, wherever the bond is filed, the order staying the proceed- 
 ings on the judgment or decree from which the appeal is prose- 
 cuted must be obtained from the proper appellate tribunal or 
 one of its members. 1 
 
 § 387. Supersedeas — Definition — The order of the court or 
 judge evidenced by the certificate of the clerk is commonly 
 called a supersedeas. 5 Originally the term "supersedeas" as 
 used in legal procedure, signified a writ issued as a command 
 to stay ordinary proceedings at law/ 1 It means, it may be said 
 
 1 R. S. iSSi, § 638, 639. Co. v. Michigan Central R. Co., 2 Ind. 
 
 1 Burk v. Howard, 15 Ind. 219; 670. 
 
 Mitchell v. Gregory, 94 Ind. 363; June 5 The word "supersedeas" is now so 
 
 v. Payne, 107 Ind. 307. thoroughly anglicized that we think it 
 
 Burk v. Howard, 15 Ind. 219,221. unnecessary to italicize it as a foreign 
 
 Since the creation of the Appellate word. 
 
 Courl by the legislature, the power to 6 Perteet v. People, 70 111. 171, 177. 
 issue a supersedeas is not vested ex- In strictness the word means to set 
 clusively in the Supreme Court or its aside or annul, but this is not the mean- 
 judges, for the authority to issue such ing ordinarily assigned it in appellate 
 writs or orders is, by necessary impli- procedure. William- t'.Bruffy, 102 U- 
 tion, conferred upon thai tribunal. S. 24S; Smith v. Western Union Tel. 
 
 4 R. S. ism. ,;,c, 641, 642; Mills v. Co., S3 Ky. 269, 271; Sage v. Central 
 
 Conner, 1 Blackf. 2; Northern Ind. R. R. Co., 93 U. S. 412, 417.
 
 STAY OF PROCEEDINGS— SUPERSEDEAS. 333 
 
 in a general way, as now usually employed, an order or com- 
 mand issued from an appellate tribunal interdicting proceedings 
 upon a judgment or decree from which an appeal is prosecuted. 
 It issues as an incident of an appeal but is not always an insep- 
 arable incident. 
 
 § 388. ApplicatioD for a Supersedeas — Brief — As a supersedeas 
 is an incident of an appeal it can not be issued until an appeal 
 has been filed. It is not necessary that the appeal should be 
 perfected by notice, for it has been the uniform practice to issue 
 the supersedeas at the inception of the jurisdiction of the tribunal 
 having power to order the stay. Jurisdiction must, however, exist 
 in the tribunal from which the supersedeas is asked. As jurisdic- 
 tion must exist in the tribunal and as an -assignment of errors 
 is essential to jurisdiction no supersedeas can issue until the 
 transcript is filed and an assignment of errors duly made. 1 An 
 application for a supersedeas must be accompanied by a brief 
 referring to the record by pages and lines and pointing out the 
 errors upon which the appellant relies. 2 But, as the supersedeas 
 brief is onlv intended to show that the appeal is not a vexatious 
 one entirely destitute of merit, no great strictness is required, 
 nor does such a brief, unless full enough to meet the require- 
 ment of the law and the rules of practice, dispense with a full 
 brief upon the merits of the case. The brief filed with an ap- 
 plication for a supersedeas is for a temporary purpose, that is, 
 to satisfy the court or judge that a stay of proceedings should 
 be ordered ; it is not required for the purpose of securing a re- 
 versal. Nor does the court in granting a supersedeas intimate 
 any decision upon the merits of the appeal. 3 
 
 § 389. Effect of a Supersedeas — Generally — An order of super- 
 sedeas issued by an appellate tribunal does not undo or set 
 
 1 Henderson v. Halliday, io Ind. 24. of controlling authority. See, gener- 
 
 This case, as we have elsewhere shown, ally, Kendall v. Wilkinson, 4 E. t v B. 
 
 has been steadily followed. See Law- 6S0. 
 
 rence v. Wood, 122 Ind. 452; Bacon v. 2 Rule XX. 
 
 Withrow, no Ind. 94; Smythe v. 3 The Northern Ind. R. Co. v. Mich- 
 
 Boswell, 117 Ind. 365, and authorities igan Central R. Co., 3 Ind. 8; The 
 
 cited p. 367. In Lawrence ;•. Wood, Northern, etc., Co. V. Michigan Cent. 
 
 supra, the case of Harshman v. Arm- Co., 2 Ind. 670. 
 strong, 43 Ind. 120. is shown not to be
 
 [3 \ APPELLATE PROCEDURE. 
 
 aside what has been done by the trial court, but, in general, it 
 simply checks, or stays, further proceedings on the judgment 
 or decree appealed from and, hence, is essentially preventive. 1 
 Our code adds something, — and that of a very material na- 
 ture, — to the effect ordinarily assigned to an order of super- 
 sedeas for it declares that a levy made upon execution shall be 
 relinquished. 2 This provision extends the operation of the 
 order and, of necessity, makes ineffective acts done under and 
 founded exclusively upon the levy unless, possibly, in cases 
 where the writ has fully performed its functions prior to the 
 stay. 3 As a general rule a supersedeas operates only upon the 
 decree or judgment from which the appeal is prosecuted and 
 does not affect the rights of persons not directly bound by such 
 judgment or not bound by it as privies in blood or estate. 
 Thus, it does not suspend the collection of the fees and costs 
 of officers or witnesses by a fee bill. 4 
 
 § 390. Stay obtained by one of Several Appellants— Effect of— 
 
 Where a judgment several in its effect is rendered against 
 more than one, a stay obtaiiied by one does not operate in 
 favor of all. A bond securing a stay for one will not confer a 
 right upon the others. If the plaintiff so elects he may issue 
 execution against those who have not obtained a stay of pro- 
 ceedings. 5 
 
 § 391. Supersedeas does not confer a right to do what the Decree 
 forbids — Where a decree specifically forbids a party from doing 
 a designated act he can not by obtaining a supersedeas acquire 
 a right to do the forbidden act. Thus, a supersedeas confers 
 no right to do an act prohibited by a decree awarding an in- 
 
 1 Northwestern, etc., Co. v. Lander, 6 Ind.525; Buchanan v . Logansport, etc., 
 
 Minn. 564; Mayor, etc., v. Shaw, 14 Co., 71 Ind. 265, 268; Scheible v. 
 
 Ga. 162; Low d. Adams, 6 Cal. 277; Slagle, S9 Ind. 323, 32S; Brooks v. Har- 
 
 Curtis v. Root, 28 111. 367; State v. ris, 41 Ind. 390; State v. Krug, 94 Ind. 
 
 Kirkpatrick, 54 Iowa, 373; Runyon v. 366; Blackburn v. Crowder, 10S Ind. 
 
 Bennett, 4 Dana, 598, S. C. 29 Am. 238, 241, 
 
 . 431; Board of Commissioners v. * R. S. 1SS1, § 642. 
 
 Gorman, 19 Wall. 661,664. The super- s Porter v. Parker, 6 Texas, 23. 
 
 sedeas does not impair the validity of * Mackison v. Clegg, S3 Ind. 135. 
 
 the judgment. Mull v. McKnight, 67 5 Freeman on Executions, § 32.
 
 STAY OF PROC E EDI N GS— SU PE R S E DEAS. 
 
 junction forbidding the act. 1 It is obvious that to assign to a 
 supersedeas such force as would make it so operate as to give 
 a party power to do what the decree prohibits would make it a 
 remedy creating affirmative rights of a positive nature rather 
 than a preventive order or writ. This would be to completely 
 transform one remedy into another of an essentially different 
 class. To adjudge that a supersedeas can create a positive and 
 affirmative right would be, in effect, to annul the decree of the 
 lower court before a hearing upon the merits is had, and this 
 the policy of the law prohibits. The principles declared in 
 analogous cases forbid that the merits of an appeal should be 
 determined upon a preliminary application, and they forbid, 
 also, that the judgment of the trial court should be nullified 
 without a consideration of the merits in due course and upon 
 full argument. 
 
 § 392. Effect of a Supersedeas upon Self-Executing Judgments — 
 
 Where a judgment or decree executes itself, that is, where no 
 act of a ministerial officer is necessary to put it into effect, the 
 supersedeas does not alter the state of things created by the 
 judgment from which the appeal is prosecuted. 2 This doctrine 
 is strikingly illustrated by the case wherein it was held that a 
 judgment suspending an attorney from practice executes itself, 
 except as to costs, and the granting of a supersedeas only sus- 
 pends the right to enforce collection of costs, and does not al- 
 low the attorney to practice pending the appeal. 3 In another 
 
 1 Stater-. Chase, 41 Ind. 356; Central time of perfecting such appeal, but not 
 Union, etc., Co. v. State, no Ind. 203; as they were before the order or decree 
 Hawkins v. State, 126 Ind. 294; Heinlen appealed from was entered." See, also, 
 v. Cross, 63 Cal. 44; Sixth Avenue, etc., Burrall z/.Vanderbilt, 1 nosw.643; Clark 
 Co. v. Gilbert, etc., Co., 71 N. Y. 430; v. Clark, 7 Paige Ch. 607; Burr v. 
 Graves ?'. Maguire, 6 Paine Ch. 379; Burr, 10 Paige Ch. 166; Cook v. Dick- 
 Robertson v. Davis, 14 Minn. 554. erson. 1 Duer,679; First National Bank 
 
 2 Padgett :■. State, 93 Ind. 396,397; v. Rogers, 13 Minn. 407. 
 
 Walker v. Heller, 73 Ind. 46,51. In » Walls v. Palmer, 64 Ind. 493. What 
 
 Graves v. Maguire, 6 Paige Ch. 379, is said in the case cited as to suspend - 
 
 Chancellor Walworth said: "The ef- ing right to collect costs must upon the 
 
 feet of an appeal after the proper steps authority of Mackison v. Clegg, 83 Ind. 
 
 have been taken to render it a stay of 135, lie understood to mean costs of the 
 
 proceedings upon the order or decree parties and not fees ot witne>ses or 
 
 appealed from, is to leave the proceed- officers. 
 ings in the situation they were at the
 
 336 APPELLATE PROCEDURE. 
 
 case it was held that an appeal from an order refusing to ad- 
 mit a will to probate, although so perfected as to operate as a 
 supersedeas, did not preclude a party from proceeding to ob- 
 tain partition pending the appeal, notwithstanding the fact that 
 in the event of a reversal the party would not be entitled to 
 partition. 1 A still later case enforces this principle. In the 
 case to which we refer a judgment in partition was declared to 
 be self-executing and it was adjudged that an appeal which 
 operated as a supersedeas did not preclude the parties from 
 securing partition pursuant to the order. 2 
 
 § 393. Effect of Supersedeas where the Judgment is Self-Execut- 
 ing in Part — It follows as a necessary conclusion from the gen- 
 eral doctrine that a supersedeas operates to stay an execution 
 but does not operate upon a self-executing judgment, that where 
 the judgment in part requires an execution for its enforcement 
 and in another part does not require such a writ, the super- 
 sedeas may operate only upon part of the judgment. This 
 doctrine has been directly asserted by our court, 3 and, as we 
 shall show further on, in discussing the particular topic, exerts 
 an important effect upon the rights and liabilities of the sure- 
 ties in a supersedeas bond. But a self-executing judgment 
 may be stayed and the situation as fixed by the judgment ap- 
 pealed from remain unchanged, as, for instance, where an un- 
 successful appellant is enabled by a stay of proceedings to re- 
 tain possession of personal property, for, in such a case, an 
 action would lie upon the bond for loss resulting from the de- 
 preciation of the property pending the appeal. 
 
 1 Burton v. Burton, 28 Ind. 342. In In Carver v. Carver, 115 Ind. 539, 542, 
 
 the case cited it was said: "The only in speaking of a judgment such as that 
 
 effect of an appeal to this court is to under discussion, it was said: " It was 
 
 stay execution upon the judgment from not possible to institute any proceeding 
 
 which the appeal was taken. In all upon the judgment aside from the cxu- 
 
 other respects the judgment until an- cution, and, therefore, the supersedeas 
 
 nulled or reversed is binding upon the and bond did not stay any proceeding 
 
 parties as to every question directly de- except an execution." Haves v. Hayes, 
 
 cided." This statement is correct but 75 Ind. 395, supports the doctrine of 
 
 subject to the exception that a super- the text, and the decision in Meyer v. 
 
 sedeas operates under our statute to re- State, 125 Ind. 335, extends the doctrine. 
 linquish a levy. 3 Carver v. Carver, 115 Ind. 539. 
 
 1 Randies v. Randies. 67 Ind. 434.
 
 STAY OF PROCEEDINGS— SUPERSEDEAS. 337 
 
 § 394. Duration of the Stay in Appeals from Final Judgments — A 
 
 stay of proceedings in cases of appeals from final judgments 
 continues until the case is fully disposed of by the appellate 
 tribunal and the opinion certified to the clerk of the trial court. 
 The statute declares that it shall operate until "the final de- 
 termination of the case, unless otherwise ordered by a court or 
 judge thereof," 1 but as the statute also gives sixty days in which 
 to file a petition for rehearing, and as the clerk is not authorized 
 to officially issue the necessary certificate to the clerk of the 
 trial court until the time for filing a petition has expired, except 
 in cases specially enumerated, it is evident that the judgment 
 of affirmance or reversal is not such a final determination of the 
 case as would entitle the appellee to treat the stay as at an end 
 and sue upon the bond. 
 
 § 395. Duration of the Stay in Appeals from Interlocutory orders 
 
 — The statute limits the stay in cases of appeals from interlocu- 
 torv orders to thirty days, but provides that it may be extended 
 by the court or one of its judges. 2 As the right to a stay is cre- 
 ated and governed by statute 3 its effectiveness can not endure 
 beyond the period designated by the legislature, unless there is 
 an order duly extending the time. It is necessary, therefore, 
 to apply to the court, or one of its judges, whenever a stay for 
 a longer time than that fixed by the statute is desired. It is 
 
 1 R. S. 1SS1, §§ 662, 5828; Rule different doctrine seems to be laid down, 
 
 XXXVIII. In Railsback v. Greve, but that case evidently did not receive 
 
 49 Ind. 271, it was held that a com- very careful consideration. 
 
 plaint on a bond must show when the 2 R. S. 1SS1, § 64S. 
 
 judgment was affirmed or when the 3 In Sage v. Central R. Co., 93 U. S. 
 
 opinion and affirmance were filed in 412, 417, it was said: "A supersedeas is 
 
 the office of the clerk of the trial court, a statutory remedy. It is only obtained 
 
 It was there said: " There was no right by a strict compliance with all the re- 
 
 to proceed to collect or demand pay- quired conditions, none of which can be 
 
 ment of the affirmed judgment until dispensed with." Hogan :•. Ross. 11 
 
 after the sixty days given for filing the How. 294, 297; Railroad Co. v. Harris, 
 
 petition had expired and a certified copy 7 Wall. 574; Slaughterhouse Case-. 10 
 
 of the opinion and judgment of affirm- Wall. 273. 2S9, 291; Kitehen v. Ran- 
 
 ance had been filed in the office of the dolph, 3 Otto, S6, SS; Goddard v. Ord- 
 
 clerk below." The court cited Poppen- way, 4 Otto, 672; Arnold v. Frost, 9 
 
 husen v. Seeley, 41 Barb. 450. In Hesh- Benedict, 2(7, 2(19. 
 ion v. Scott, 94 Ind. 570, a somewhat 
 
 22
 
 338 APPELLATE PROCEDURE. 
 
 within the power of the court to prolong the time upon its own 
 motion, but it is not bound to do so in the absence of an appli- 
 cation, nor is it, of course, always bound to do so upon petition 
 or motion. 
 
 § 396. Sureties on Supersedeas Bonds — What was said in dis- 
 cussing the rights and liabilities of parties and sureties to appeal 
 bonds is applicable to supersedeas bonds. 1 It is, indeed, true 
 that in almost every decision of our court upon the subject of 
 appeal bonds, the instruments considered were, in effect, su- 
 persedeas bonds, that is, they were bonds executed to obtain a 
 stay of proceedings upon the judgment appealed from. In 
 common acceptation the term " appeal bond" means the same 
 thing as a supersedeas bond, 2 and it is otten true that a bond is 
 both an appeal bond and a supersedeas bond. As the subject 
 of the rights and liabilities of parties and sureties has been so 
 fully considered little remains to do here, but there are, never- 
 theless, some special matters that merit attention, and those 
 matters may be here appropriately considered. It is evident, 
 it may be said at the outset, that a surety is not, as a general 
 rule, liable for anything more than costs in a case where the 
 appeal is prosecuted from a self-executing judgment. It is true 
 that there may be instances where the appeal from a self-exe- 
 cuting judgment causes some special injury to the appellee for 
 which he would be entitled to recover, but such cases form ex- 
 ceptions to the general rule. 3 Where part of the judgment ap- 
 pealed from is self-executing and part is not, there can be no 
 difficulty in holding that if the stay operates upon the part 
 which is not self-executing and thereby causes loss to the ob- 
 ligee, he may maintain an action on the bond. Where the 
 stay operates upon the entire judgment there can, of course, be 
 no doubt that if injury results to the obligee from the delay he 
 is entitled to a recovery. If, however, the supersedeas bond 
 does not stay proceedings to the injury of the appellee he is 
 
 1 /l>/te,Chap. XVII, "Appeal Bonds." Keen t/.Whittingen, 40 Md. 489; Woe! 
 
 2 Ante, § 355, note. v. Fulton, 2 Harr. ..V G. 71; Blonheiin 
 
 3 United States v. Addison, 6 Wall. t'. Moore, 11 Md. 365; Chamberlain v. 
 291; Lawler v. Alton, S Irish L. 160; Applegate, 2 Hun. 510. 
 
 Graham v. Swigert, 12 15. Mon. 522;
 
 STAY OF PROCEEDINGS— SUPERSEDEAS. 339 
 
 not entitled to recover merely because he elected not to enforce 
 his rights under the judgment pending the appeal. 1 We have 
 said that compensation is recoverable for actual loss or injury 
 caused by the stay of proceedings from the sureties on the bond, 
 and this is the doctrine of the adjudged cases, but in applying 
 the doctrine some diversity of opinion has been exhibited. In 
 a case of our own it was held that where one in possession of 
 personal property unsuccessfully appeals and the property de- 
 preciates pending the appeal the loss resulting from such de- 
 preciation is an element of damages. 2 An unsuccessful appeal 
 in a case where the appellant retains possession of the land in 
 controversy pending the appeal entitles the obligees in the 
 supersedeas bond to recover mesne rents and profits. 3 
 
 § 397. No liability where there is no Injnry and no promise to 
 pay the Judgment — The general rule is that where the stay of 
 proceedings does not operate to the injury of the appellee and 
 there is no promise to pay a money judgment no actual dam- 
 ages beyond costs, are recoverable. This proposition seems 
 so plain as to hardly merit statement but its statement may, at 
 least, be excused because it serves as a preface to a considera- 
 tion of some incidental matters that are not unimportant. One 
 of these matters is that the rule respecting the description or 
 identification of the judgment which the obligors undertake to 
 pay in the event that the appeal is not successful is very liberal, 
 inasmuch as it asserts that no great particularity of description 
 
 1 Carver v. Carver, 115 Ind. 539. We former statutes a different doctrine was 
 are not here, it may be well enough to held. Malone v. McClain, 3 Ind. ^32, 
 say, referring to the effect of a promise Epstein v. Greer, S5 Ind. 372, is not 
 to pay a designated judgment. As to authority under the statute now in 
 the effect of such a promise, see Crane force. R. S. 1SS1, § 63S. See Opp v. Ten 
 v. Andrews, 10 Col. 265, 15 Pac. Rep. Eyck, supra. In Sherry v. State Bank 
 331; Miner v. Rodders, 65 Mich. 225, of Indiana, 6 Ind. 397, it was held that 
 31 N.W. Rep. 845; Fitzgerald v. Well- obligors were liable for mesne profits 
 ington, 37 Kan. 460, 15 Pac. R. 582. and they could not set off the value 01" 
 
 2 Hinkle v. Holmes, 85 Ind. 405. improvements made by the principal 
 
 3 Opp v. Ten Eyck, 99 Ind. 345; Hays obligor pending the appeal. See, gen- 
 v. Wilstach, 101 Ind. 100; Craig v. erally, Estey, etc., Co. v. Runnels 
 Encev, 78 Ind. 141; Cahall v. Citizens. 67 Mich. 310, 34 N. W. Rep. 5S1. 
 
 etc., Association, 74 Ala. 539. Under
 
 341 APPELLATE PROCEDURE. 
 
 is required. 1 Another of the incidental matters referred to is this . 
 where a recovery is sought beyond costs and nominal damages 
 in n case where there is no undertaking, implied or express, 
 to pay the judgment, actual injury must be shown, and in some 
 instances special damages must be averred and proved. If an 
 appellant does no affirmative act causing actual injur}- to the 
 appellee he may be liable for nominal damages and for costs, 
 and where there is a promise to pay the judgment, for the prin- 
 cipal and interest due upon it. This rule is not affected by the 
 lact that the appellant ma}- have a right to pursue a course 
 that, if actually pursued, would secure him benefit and cause 
 loss to the appellee. Thus, a stay of proceedings which would 
 enable a party to obtain possession of land or to retain posses- 
 sion already held by him would not authorize a recovery for 
 the use of the land unless in the one case possession was taken 
 or in the other possession w r as retained. 1 ' The general doctrine 
 is asserted and enforced by the cases wherein it was held that 
 if a party does not in fact obtain a supersedeas there is no lia- 
 bility on the bond, although he was entitled to a supersedeas 
 had he elected to avail himself of his right. 3 It seems to us 
 that the cases last referred to carry the doctrine to its utmost 
 verge, and that it may well be doubted whether they do not 
 carry it beyond the true line. If the appellee should enforce 
 his judgment notwithstanding the appellant's right to a stay, 
 then, doubtless, there would be no liability on the bond beyond 
 nominal damages and costs, but if the appellee should treat the 
 bond as having effected the purpose for which it was executed 
 and await the result of the appeal it would seem clear that if 
 the bond contained an undertaking to pay the judgment ap- 
 pealed from, he might enforce it against the obligors in the 
 
 1 Williams v. Sims (Texas.), 16 S. W. 2 Carver v. Carver, 115 I rid. 539. As 
 
 Rip. 7S6; Jones v. M alloy (Texas), 15 to the right and measure of a recovery 
 
 S. W. Rep. 1 98; Janus v. Roberts, 78 under the provisions of section 63S of 
 
 Tex. ^70; Witten v. Caspary (Texas), the code, see ante, § 3S3. 
 
 [5 S. W. Rep. 47; Phelps v. Daniel, S6 s Reed v. Lander, 5 Bush^S; White- 
 
 Ga. 363, 12 S. E. Rep. 5S4; Dyer -'. head v. Boorom, 7 Bush. 399; Wade v. 
 
 Brady, 88 Cal. 590, 26 Pac. Rep. 511. First National Bank, 11 Bush. 697. 
 Si Richardson v. Richardson, 82 Mich. 
 305, Y' N. W. Rep. 670.
 
 STAY OF PROCEEDINGS— SUPERSEDEAS. ;; | 1 
 
 event of a breach of the condition to prosecute the appeal to 
 effect. 
 
 § 398. Trial Court can not control a Supersedeas — A supersedeas 
 is an order of an appellate tribunal made by it in the exercise 
 of its appellate jurisdiction, and as such it is above the control 
 of an inferior tribunal. 1 It is a settled principle of appellate 
 procedure that when a case is brought within the jurisdiction 
 of an appellate tribunal it is taken entirely out of the control 
 of the inferior court. 2 The rule just stated is not violated by 
 the cases which hold that the trial court may, upon due appli- 
 cation, amend its record so as to make it speak the truth, for 
 those cases rest upon the ground that the acts have been per- 
 formed but are not properly evidenced by the record entries. 
 Where a judgment has been affirmed and the judgment of the 
 appellate tribunal certified to the clerk below it is not, as a 
 general rule, in the power of the lower court to stay the pro- 
 ceedings contrary to the mandate of the higher court. 3 This 
 general rule is not without exceptions. If facts presenting a 
 cause for staying proceedings on the judgment have come into 
 existence since the rendition of the judgment and were not 
 discovered until after its affirmance, we suppose the trial court 
 might interfere for the protection of the unsuccessful party, 
 provided, of course, he showed merit and diligence and pro- 
 ceeded in the appropriate mode. The judgment of affirmance 
 may well be regarded as conclusive as to all the facts and all 
 the questions involved in the controversy on appeal, but it can 
 hardly be so regarded as to facts not in existence when the 
 judgment on appeal was pronounced. 4 Like all general rules, 
 the rule stated must be subject to exceptions, and one exists in 
 a case where a party shows right to be relieved from fraud. 
 
 1 Draper v. Davis, 102 U. S. 370; Kolsem (Ind. Sup. Ct.), Dec. 17, 
 Hovey v. McDonald, 109 U. S. 150; 1S91. 
 
 Helden v. Helden, 9 Wis. 557. See 3 Mayor of Marysville v. Buchanan, 
 
 Jerome v. McCarter, 21 Wall. 17; Rail- 3Cal. 212; Dibrell v. Eastland, 3 Yerg. 
 
 road Co. v. Schute, 100 U. S. 644. 507. 
 
 2 See post, Chapter XXVII, " Effect * Post, Chapter XXIX, '-Judgment 
 of an appeal." See, also, State v. on Appeal."
 
 APPELLATE PROCEDURE 
 
 §399 Settiug aside a Supersedeas — Practice— Although the 
 - in which a supersedeas will be set aside are very rare, 
 still, there are cases in which it may be done. A supersedeas 
 will not be set aside upon the ground that there is no merit in 
 the appeal, and the uniform practice of the court has been to 
 decline to entertain a motion founded upon any such ground. 
 The reason for this rule is obvious. Nor will the court enter- 
 tain a motion to set aside a supersedeas upon the ground that 
 the supersedeas brief filed is not sufficient. Such questions are 
 foreclosed by the decision involved in the order granting the 
 supersedeas. But where the supersedeas is obtained by fraud 
 it may be set aside. 1 So it may be where the bond filed in the 
 appellate tribunal is insufficient. Where sureties on the bond 
 filed below have since its approval become insufficient, the ap- 
 pellate tribunal may, in the proper case, set aside the stay of 
 proceedings. 2 The practice is to file a written motion to set 
 aside the supersedeas specifying the grounds of the applica- 
 tion, and to give written notice of the motion to the adverse 
 party. If questions of fact are presented by the motion affida- 
 vits should be filed with it. Upon questions of law a brief is 
 required. No oral arguments are heard upon such motions 
 except in special cases and upon leave asked in writing and 
 obtained. The motion with affidavits and briefs should be filed 
 with the clerk and he should be requested to place them before 
 the court. 3 A party opposing the motion has a right to file 
 counter-affidavits and briefs, and the motion is disposed of upon 
 the papers filed. 
 
 § 400. Motions to Dismiss an Appeal, and Motions to vacate a 
 Supersedeas — There is an important difference between dismiss- 
 
 1 Draper v. Davis, 102 U. S. 370; extraordinary cases, is the insufficiency 
 Railroad Co. v. Schute, 100 U. S. 644; of the hond. It may be shown that the 
 Jerome v. McCarter, 21 Wall. 17. bond is radically defective, or that the 
 
 2 See ante, § 366; Midland R. Co. v. sureties are insolvent, and, for that pur- 
 Wilcox, in Ind. 561. pose, evidence in the form of affidavits 
 
 3 Rules XT, XII, XIII, XIV. A1-. or depositions is competent. It may 
 though it is implied in what is said in be added, that the supersedeas will not 
 the text, it may not be inappropriate to be vacated unless the assailant makes a 
 expressly say that the only ground strong and clear case. After the order 
 upon which a motion to vacate- a super- is made the burden is upon the party 
 sedeas can be supported, except in very who seeks to have it vacated.
 
 STAY OF PROCEEDINGS— SUPERSEDEAS. 343 
 
 ing an appeal and setting aside a stay of proceedings or vacat- 
 ing an order of supersedeas. The difference is obvious although 
 it is often lost sight of in practice. As a bond is not, ordinar- 
 ily, essential to an appeal the appeal may often be effective, 
 although the bond is not sufficient to support a stay of proceed- 
 ings or an order of supersedeas. Where a bond is essential to 
 an appeal, as, for instance in the case of an appeal in term, or, 
 in the case of an appeal from an interlocutor)' order, then the 
 failure to file one may support a motion to dismiss the appeal ; 
 where, however, the bond is only required to secure a stay of 
 proceedings the failure to file a bond may support a motion to 
 set aside the order staying the proceedings, but it will not be 
 sufficient cause for dismissing the appeal. 1 In cases where the 
 bond is not sufficient to support an order of supersedeas the 
 proper motion is to vacate or set aside the order, but where it 
 is essential to the effectiveness of the appeal the motion to dis- 
 miss is the appropriate one. It may be true, and, indeed, it is 
 generally true, that in cases where a bond is filed because re- 
 quired to perfect the appeal it serves a double purpose, namely, 
 that of a necessary step in the appeal itself, and, also, that of 
 securing ancillary relief by staying or suspending proceedings 
 on the judgment from which the appeal is prosecuted, and, when 
 this is true, one motion, — that to dismiss the appeal, — is all that 
 is required. 
 
 1 Winter v. Hughes, 3 Utah, 43S, 24 Pac. Rep. 907.
 
 CHAPTER XIX. 
 i 
 
 PLEADINGS OF THE APPELLEE. 
 § 401 Demurrer to the assignment of § 416. Assignment of cross - errors 
 
 402. Ill-assigned errors disregarded. 
 
 403. Classification of pleas or an- 
 
 swers. 
 
 404. Joinder in error. 
 
 405. The common joinder admits the 
 
 record. 
 
 406. Waiver by common joinder. 
 
 407. Special pleas or answers. 
 
 408. What must be specially pleaded. 
 
 409. Election of remedies. 
 
 410. Presenting matter in bar by mo- 
 
 tion. 
 
 411. Verification of the motion. 
 
 412. Notice of the plea or motion. 
 
 413. Demurrer to the special plea. 
 
 414. Reply to the special plea. 
 
 415. Cross-errors. 
 
 When necessary. 
 
 417. Nature of the assignment of 
 
 cross-errors. 
 
 418. Object of the assignment of 
 
 cross-errors. 
 
 419. Effect of the assignment of 
 
 cross-errors. 
 
 420. Groundwork of the assignment 
 
 of cross-errors. 
 
 421. Transcript. 
 
 422. Notice of the assignment of 
 
 cross-errors not required when 
 filed within the time limited 
 
 423. Time within which cross-errors 
 
 may be assigned. 
 
 424. Answer to the assignment of 
 
 cross-errors not required. 
 
 § 401. Demurrer to the Assignment of Errors — At common law 
 an assignment of errors was regarded as a declaration, and our 
 decisions declare that it is the appellant's complaint on appeal. 
 It was the practice at common law to demur to the assignment 
 of errors where it was insufficient, 1 and, some of the writers on 
 procedure affirm that a demurrer is proper under our code system. 
 We are, however, very much inclined to doubt whether our 
 code intended that demurrers should be filed to the assignment 
 of errors. There is, at all events, no longer any practical ben- 
 efit to be secured by demurring. Defects in the assignments 
 of errors when called to the attention of the court in the brief or 
 
 1 Freeborn v. Denman, 2 Halst. 190; law, as under our system, each specifi- 
 
 Fitch v. Lothrop, 2 Root, 524; Clarke cation was required to be complete in 
 
 v. Bell, 2 Litt. (Ky.), 162; Moody v. itself. Landsdale v Findley, Hardin, 
 
 Vrceland, 7 Wend. 55. At common 151; Kelley v. Bennett, 132 Pa. St. 218. 
 
 (344)
 
 PLEADINGS OF THE APPELLEE. 345 
 
 argument will receive consideration, and parties by this course 
 can secure all the substantial benefit that a demurrer could pro- 
 cure. 1 A reference to some of the decided cases will make 
 good the statement, that it is sufficient to direct attention to the 
 defective assignment and that when so challenged, it will be 
 held to be unavailing. A joint assignment of errors not good 
 as to all will be held not good as to any who join in it. 2 Omis- 
 sion of names will be held fatal. 3 Where instructions are not 
 sufficiently indicated specifications founded on rulings upon 
 them will be adjudged to be ill. 4 Assigning as error what 
 should be specified in the motion for a new trial will be declared 
 to be nugatory. 5 So, as held in cases almost past numbering, 
 a specification that is too general will accomplish nothing. 6 The 
 doctrine of our cases is held by many other courts. 7 
 
 § 402. Ill-assigned Errors Disregarded — It is the rule as de- 
 clared by the adjudged cases that ill-assigned errors will not 
 be considered, for this is the only effect that can be logically 
 ascribed to those cases. As errors not well assigned are dis- 
 regarded there can be no possible reason for demurring. There 
 are, on the other hand, substantial reasons why the practice of 
 demurring should be disapproved. It tends to multiply plead- 
 ings and uselessly cumber the record. It breeds useless tech- 
 
 1 See "The Assignment of Errors," 6 Knusly v. Hire (Ind. App. Ct.), 28 
 Chapter XVI. N.E.Rep. 195; Lawless v. Harrington 
 
 2 Hawkins v. Heinzman, 126 Ind. 75 Ind. 379; Clayton v. Blough, 93 Ind. 
 551; Wall v. Bagby, 126 Ind. 372, Ar- 85. The court will, indeed, of its OAvn 
 buckle v. Swim, 123 Ind. 208. motion disregard insufficient specifica- 
 
 3 Snyder v. Fleming, 124 Ind. 335. tions. 
 
 4 Ohio,etc, Co. v. McCartney, 121 Ind. 7 Arndt v. Hosford (Iowa), 48 N. W. 
 3S5, limiting Bartholomew T'.Langsdale, Rep. 981, Blecker v. Schoff (Iowa), 48 
 35 Ind. 278, in fact practically overrul- N. W. Rep. 1079; American Legion v . 
 ing it. See, Pratt v. Burhans, 47 N.W. Rowell (Texas), 15 S. W. Rep. 217; 
 Rep. 1064; Taylor v. Steam Naviga- Farrar v. Churchill, 135 U. S. 609, 
 tion Co., 105 N. C. 484. Kimbrell v. Rogers (Ala.), 7 So. Rep. 
 
 5 Staser v. Hogan, 120 Ind. 207; Bed- 241, Johnston v. Flint, 75 Texas, 379, 
 ford, etc., v. Rainbolt, 99 Ind. 551; West 12 S. W. Rep. 1120; Garlington v. 
 v. Cavins, 74 Ind. 265; Ogle v. Dill, 61 Copeland, 25 So. Car. 41 ; Franz, etc., 
 Ind. 43S; Patterson v. Lord, 47 Ind. Co. v. Mielenz, 5 Dak. 136, 37 N. W. 
 203; Garrigan v. Dickey (Ind. App. Ct.), Rep. 728; Territory v. Reberg, 6 Mont. 
 27 N. E. Rep. 713; Ringenberger v. 467; Filley v. Walker, 44 N. W. Rep. 
 Hartman, 102 Ind. 537, 26 N. E. Rep. 91. 737.
 
 3 ),; APPELLATE PROCEDURE. 
 
 localities. It creates collateral issues. The mischief it does is 
 not counterbalanced by any corresponding good, for it really 
 produces nothing of value. Bald technical errors, or mere 
 errors of form, the courts will not regard, so that, as it is useless 
 to urge such errors or defects against the assignment of errors, 
 there is no function for a demurrer to perform. 
 
 § 403. Classification of Pleas or Answers— The subject of ap- 
 peals is regulated to a very great extent by statute, but there 
 are, nevertheless, many of the common law principles which 
 are still of controlling influence. Many questions of prac- 
 tice are solved b}' resorting to the rules which prevailed in the 
 common law procedure ordinarily denominated a writ of 
 error. While it is true that our statute has abolished writs of 
 error, it is still true that many of the principles established by 
 the courts of common law enter into and form part of our sys- 
 tem of procedure. Old rules of the common law cling to the 
 new modes of procedure with something of the same tenacity 
 that the "Old man of the Sea" clung to " Sinbad the sailor." 
 Reference is constantly made to the common law decisions, and 
 this is done upon the long accepted doctrine that the common 
 law aids statutes. Following this doctrine we shall adopt the 
 old classification of pleas that may be pleaded on appeal to the 
 assignment of errors. " Pleas in error are common or special." 1 
 This shall be our classification, though it may not be as accurate 
 or definite as it is possible to frame. There is but one com- 
 mon plea, but there are numerous special pleas. 
 
 s 1 404. Joinder in Error — The common plea, or as we call it, 
 and as it is generally called elsewhere, the common joinder is ; 
 " There is no error in the record or proceedings." 2 This plea, 
 or answer, is in the nature of a demurrer. 3 It admits all that 
 is properly part of the record, and presents an issue of law. 
 Under the old rules it did not admit errors that " were ill-as- 
 signed." 4 Some of our decisions seem to indicate that the 
 
 1 2 Tidd's Pr. (4 Am. ed.) S63. 8 Booth v. Commonwealth, 7 Metcf. 
 
 - The formula in the old books, and, (Mass.) 285, 2S7. 
 indeed, in many modern ones is, " in 4 2 Tidd's Pr. (4 Am. ed.) 1173; Bo- 
 nullo est erratum." dentha v. Goodrich. 3 Gray, 508, 512; 
 
 Riley v. Waugh, 8 Cush. 220.
 
 PLEADINGS OF THE APPELLEE. 347 
 
 rule is that errors not accurately assigned are admitted, but, 
 certainly, what can not be assigned as error is not confessed by 
 the common joinder. We suppose all that can be said is that 
 under our system the common joinder waives matters of form 
 but not matters of substance. That it does not confess speci- 
 fications not well made is settled beyond controvery. This is 
 the doctrine of the long line of cases which hold that specifica- 
 tions of error must be definite, as well as of the great number 
 of cases which hold that reasons for a new trial "can not be 
 made specifications'in the assignment of errors. There can be 
 little doubt that under our system of procedure matters of sub- 
 stance which render bad the specifications in the assignment of 
 errors are not made unavailing by a common joinder in error. 
 Matters of form can not be made available upon such a plea or 
 answer, but matters of substance may be. It has never been 
 the practice to specifically object to such specifications as we 
 have named, but it has always been held that the appellee may 
 make objections after joining in error, that is, he may show 
 that the specification is not sufficient to bring in review the rul- 
 ings of the trial court. 
 
 § 405. The Common Joinder admits the Record — The general 
 rule is often stated thus, " the common answer or plea admits 
 the record." l This statement requires qualification. The an- 
 swer does admit that the record is perfect unless the record 
 itself shows that it is imperfect. Under our decisions the plea 
 does not admit that all recitals or instruments contained in the 
 record are properly there if upon the face of the record itself 
 it appears that they are not legitimately a part of it. Thus, it 
 does not confess that mere statements of a ministerial officer 
 are part of the record, nor that a bill of exceptions not signed 
 or not filed in time is in the record, although copied in the tran- 
 script. It is entirely safe to affirm that where the record upon 
 its face shows that matters are copied into it which do not le- 
 
 1 Tidd says: "By pleading in nullo lows these general statements, however, 
 
 est erratum, the defendant in error ad- with others which modify or qualify 
 
 mits the record to be perfect; the effect their effect and scope. 2 Tidd's Pr. 
 
 of his plea being that the record in its 1 174. 
 present state is without error." He fol-
 
 348 APPELLATE PROCEDURE. 
 
 gitimately belong there the plea does not preclude the party 
 pleading it from denying that they are part of the record. 1 In 
 such a case, as we have elsewhere fully shown, the appellee 
 may point out the parts of the transcript embodying improper 
 orders, instruments, or recitals, and if the transcript, upon in- 
 spection, shows that the appellee is right, the ill parts of the 
 transcript will be disregarded by the court in deciding the case. 2 
 But where the record does not on its face disclose the infirmity 
 then there must be an amendment, otherwise the plea will con- 
 clude the party who pleads it. Omissions in the transcript 
 must, as a general rule, be supplied, for it is seldom, indeed, 
 that the face of the transcript discloses the fact that material 
 matters are omitted. A party who stands solely upon the plea 
 can not contradict the record on appeal. But in saying this we 
 do not mean to convey the impression that a party may not, af- 
 ter joinder, obtain a correction of the record ; we mean only 
 this, that if nothing more is done than to file the plea he can not 
 contradict the record. As we have shown in another place, a 
 party may have the record corrected even after the case has 
 been submitted. 
 
 § 406. Waiver by Common Joinder — All objections to process 
 are waived by a joinder in error. 3 It operates as a waiver of 
 many other rights, as, for instance, a motion to dismiss an ap- 
 peal.' It will waive an objection that there is a defect of par- 
 ties, and all objections of like character. 5 But it is not neces- 
 sary to collect particular cases, for it may be said that a joinder 
 in error waives all strictly preliminary motions, except such as 
 go to the jurisdiction of the subject. It is necessary, therefore, 
 
 1 Even in jurisdictions where the ef- 193; Roanoke 7'. Karn, So Va. 589; Shil- 
 fect given the common joinder is more leto v. Thatcher, 43 Ohio St. 63. 
 strict than that given it under our sys- 3 Motions to strike out are unneces- 
 tem, matters not properly in the rec- sarv where the record shows that the 
 oid. although copied in the transcript, instrument, order or recital is not prop- 
 will not he regarded as admitted to be erly part of the record. Creamer 7'. 
 part of the record. Baker v. Swift Sirp, 91 Ind. 366. 
 (Ala.), 6 So. Rep. 153; Winters 7'. Null 3 Beck v. State, 72 Ind. 251, 255. 
 ( W. Va.), 7 S. E. Rep. 443; Chicago, 4 State v. Walters, 64 Ind. 226, 228. 
 
 -. Yando, 127 111. 214,20 N. E. 5 Field v. Burton, 71 Ind. 380. 
 Rep. 70; Noble v. Bourke, 44 Mich.
 
 PLEADINGS OF THE APPELLEE. 349 
 
 for a party who desires to present a preliminary question to do 
 so before filing a joinder in error. If the joinder was obtained 
 by fraud or was made through mistake, the court may, upon a 
 proper application and for sufficient cause, permit it to be with- 
 drawn, or relieve the party from its effect. 
 
 § 407. Special Pleas or Answers — A special answer to the as- 
 signment of errors is affirmative, and is in the nature of an an- 
 swer in the trial court, pleading matter in confession and avoid- 
 ance. It does not controvert the assignment of errors, but avers 
 facts showing that it has ceased to be effective. A special plea 
 is always required where matters have occurred since the ap- 
 peal was taken which render the attack upon the judgment of 
 the trial court unavailing. In general it pleads matters which 
 occurred after the judgment below was entered. 
 
 § 408. What must be Specially Pleaded — A release of errors 
 must be specially pleaded, for the release is not available under 
 the common joinder. 1 The joinder admits the representative 
 character of the party assigning error, and facts showing the 
 contrary must be set forth in a special plea. 2 A special plea is, 
 it has been held, a proper mode of presenting the objection that 
 the appeal was not taken within the time limited by law, 3 but a 
 verified motion is simpler and equally as efficacious. 4 The mo- 
 tion is now usually employed in such cases. 5 Where the rec- 
 
 1 Adams f. Beem,4 Blackf. 128; Veach 3 Jacobs v. Graham, 1 Blackf. 392. 
 v. Pearce, 6 Ind. 48; Vick v. Maulding, The plea does not confess errors as to 
 1 How. (Miss.), 217; Trustees v. Hih- appellants not barred. Hawkins v. 
 ler, 85 111. 409. It is held by the Su- Hawkins, 2S Ind. 66; McEndree v. 
 preme Court of Illinois that where a McEndree, 12 Ind. 97. 
 
 party unsuccessfully pleads a release of 4 Buntin v. Hooper, 59 Ind. 589; 
 
 errors the judgment will be reversed Day v. School City of Huntington, 78 
 
 and leave will not be granted to join in Ind. 280. 
 
 error. Mahoney v. Keane, 28 N. E. 5 Louisville, etc., Co. V. Boland, 70 
 
 Rep. 915; Austin f. Bainter, 40 111. S2; Ind. 595; Louisville, etc., Co. v. Jack- 
 
 Clapp v. Reid, 40 111. 121; Ruckman v. son, 64 Ind. 39S; Miller v. Carmichael, 
 
 Allwood, 44 111. 184. 98 Ind. 236. A failure to appeal in 
 
 2 Rundles v. Jones, 3 Ind. 35. See time is regarded as an infirmity affect- 
 Voiles v. Voiles, 51 Ind. 385. There ing jurisdiction. Miller v. Carmichael, 
 may possibly be cases where this rule supra. A jurisdictional question may, 
 will not fully apply, but they are rare as we have seen, and as decided in the 
 ones. last named and other cases, be made at
 
 350 APPELLATE PROCEDURE. 
 
 ord discloses the fact that the appeal was not taken in time it 
 is the better practice to use the motion rather than the special 
 plea. Under the old system the statute of limitation was avail- 
 able only upon a special plea, but under the liberal rule our 
 decisions declare it may be made available on a proper motion. 1 
 It is, indeed, evident from the trend of our decisions that the 
 motion to dismiss has in a great measure supplanted the 
 special plea, but it has not entirely excluded that remedy. 
 Where the judgment creditor and appellant buys land upon an 
 execution issued on the judgment and receipts the judgment, it 
 bars the appeal, and the facts should be specially pleaded to 
 the assignment of errors. Acceptance of payment by the ap- 
 pellant bars the appeal, and such payment is well pleaded by 
 special plea or answer. 3 But a verified motion will present the 
 question. 4 The position of a defendant who pays a judgment 5 
 or enters replevin bail 6 is essentially different from that of a 
 plaintiff who voluntarily accepts payment, and the appeal of 
 such a defendant is not barred. Facts constituting an estoppel 
 should be specially pleaded. Thus, if the appellant accepts a 
 substantial benefit from the judgment, the facts are properly set 
 forth specially, for they would not be available under the com- 
 mon joinder. 7 Possibly they would be available under a motion 
 to dismiss, but it is certainly more appropriate to present mat- 
 ter of estoppel by plea. We suppose that notwithstanding the 
 fact that the present practice permits matters in bar to be alleged 
 by motion as well as by plea, there are some matters that may 
 be more appropriately presented by plea, as, for instance, a re- 
 lease. 
 
 an v stage of the proceedings. Louis- v. Bain, i Wash. Tv. 482, Alexander 
 
 ville, etc., Co. v. Horton, 67 Ind. 546; v. Alexander, 104 N. Y. 643. 
 
 Morton v. Sawyer, 59 Ind. 587. 4 McCracken v. Cabel, 120 Ind. 266. 
 
 1 Broojks v. Norris, 11 How. (U. S.), 5 Hayes v. Nourse, 107 N. Y. 577; 
 
 204. Chapman v. Sutton, CS Wis. 657; Ed- 
 
 7 Clark v. Wright, 67 Ind. 224; Test wards v. Perkins. 7 Oregon, 149; Aimes 
 
 v. Larsh, 76 Ind. y$2. v. Chappel, 28 Ind. 469; Dickensheets 
 
 3 Newman :■. Riser (Ind.), 26 N. E. v. Kaufman, 29 Ind. 154; Johnson V. 
 
 Rep. 1006, and cases cited; Smith v. Unversaw, 30 Ind. 435. 
 
 lan (Wis.), 46 N.W. Rep. 664; 6 liver v. Norton. 26 Ind. 269. 
 
 ire v. Floyd. 4 Oregon, 260; Lyons 7 Pittsburgh, etc., Ry. Co. v. Swinny, 
 
 91 Ind. 399.
 
 PLEADINGS OF THE APPELLEE. 351 
 
 § 409. Election of Remedies — It seems from our decisions that 
 the appellee may allege matter in bar of the appeal either by 
 motion or by plea. The remedies are, according to the rule 
 deducible from the decisions, cumulative, and the appellee may 
 generally elect which he will pursue. The court declared in 
 one of the earlier cases that it was inclined to favor the practice 
 of presenting the question by motion. 1 The doctrine that mat- 
 ter in bar may be presented by motion is now well established 
 and it is illustrated by many ca^es. The practice is less cum- 
 bersome and more direct than the old procedure by plea. 
 
 § 410. Presenting Matter in Bar by Motion — It needs neither 
 argument nor authority to prove that a motion alleging matter 
 in bar of an appeal must be good on its face. If the motion 
 does not, upon inspection, show facts which bar the appeal it is 
 insufficient. The practice has been to inspect the motion and, 
 if it is not sufficient on its face, to deny it. Not many cases 
 can be found in our reports upon this subject for the reason that 
 opinions are not usually written upon such motions, but it has 
 long been the practice to examine the motion and if insufficient 
 to so adjudge without a formal opinion. It is necessary, there- 
 fore, to plead the facts with directness, clearness and certainty. 
 
 § 411. Verification of the Motion — It is usual to verify all mo- 
 tions pleading matter in bar. It can, however, hardly be said 
 that there is any established rule of practice requiring verifica- 
 tion, but there are strong reasons why such a rule should be 
 declared and enforced. Verification is essential in order that 
 it may appear that the motion is made in good faith and that it 
 is, at least believed by counsel, that there are good grounds for 
 interposing it. 
 
 1 Buntin v. Hooper, $9 Ind. 5S9. In tion upon due notice to the opposite 
 the case cited it was said: "With a party. This is not intended, however, 
 view to the simplicity and facility of to prevent the appellee, if he shall see 
 practice and the early disposition of proper to do so, from pleading lapse of 
 causes improperly appealed after the time in bar of the appeal." See Louis- 
 time limited therefor, we have conclud- ville. etc., v. Boland, 70 Ind. 595; Day v. 
 ed to dispose of such questions on mo- School City of Huntington. 78 Ind. 280.
 
 352 APPELLATE PROCEDURE. 
 
 § 412. Notice of the Plea or Motion— Notice of the plea or mo- 
 tion should be given. 1 It is not a motion or proceeding of 
 course, as the filing of a brief, or the like, of which parties 
 are bound to take notice without special information. To per- 
 mit the hearing of such motions or pleas in an appellate tri- 
 bunal to which are brought cases from all parts of the State, as 
 of course and without special notice, would, it is manifest, be 
 productive of hardship and injustice. 
 
 § 413. Demurrer to the Special Plea — Under the old practice, 
 as we have said, all matters in bar were required to be pre- 
 sented by special plea. If the plea was insufficient a demurrer 
 would lie. This rule has been acted upon by our court and is 
 undoubtedly still in force. 2 But, as the remedies by plea and 
 motion are cumulative, and as motions are not usually tested 
 by demurrer, we suppose that a demurrer is only necessary, or, 
 probably, only proper, where a plea is employed. It is enough, 
 under the prevailing practice, to point out, in the brief on the 
 motion, the defects apparent in the motion itself. If the motion 
 is insufficient and its insufficiency is pointed out, the court will 
 deny it. No formal attack upon a motion is necessary, but it 
 seems that a formal attack must be made where a plea is filed, 
 although we can see no good reason why this should be so. It 
 seems to us that the spirit of our system of procedure is that 
 all such applications, whether by plea or by motion, should be 
 disposed of in a summary way, giving little heed to form and 
 going at once to the merits of the application. 
 
 § 414. Reply to the Special Plea — The practice at common law 
 
 was to file a formal replication to a special plea alleging matter 
 in bar of the appeal. This is still proper where a formal plea 
 is filed. Where, however, a motion is filed presenting an issue 
 of fact it may be met by counter- affidavits without any formal 
 pleading tendering an issue. This practice has been pursued in 
 many cases and it was adopted in the case which first speciiic- 
 allv and decisively declared that matter in bar of the appeal 
 
 1 Buntin:\ Hooper, 59 Ind.qSc): New- * Millar v. Farrar, 2 Blackf.219; Pitts- 
 man :•. Kizer (Ind.), 26N.E. Rep. 1006. burgh, etc., Co. v. Swinney, 91 Ind.399..
 
 PLEADINGS OF THE APPELLEE. 353 
 
 might be alleged by motion. The plea may be supported by 
 written evidence, and by written evidence it may be met with- 
 out filing a formal reply. 1 
 
 § 415. Cross-Errors — It has long been the practice to permit 
 the assignment of cross-errors although there is no statute ex- 
 pressly authorizing or providing for such a pleading. The 
 practice, however, is defensible upon principle and is sustained 
 by the rules declared in analogous cases. The assignment of 
 cross-error in many respects, but not in all, resembles the cross- 
 complaint or counter-claim filed in the trial court. As to what 
 may be assigned as cross-error and as to the form and substance 
 d{ the assignment, it is sufficient to say that, as a general rule, 
 the principles applicable to the appellant's assignment of errors 
 are equally applicable to the assignment of cross-errors. 2 It is, 
 however, held that the assignment of cross-errors need not con- 
 tain the names of the parties to the appeal. 3 
 
 § 416. Assignment of Cross-Errors — When necessary — If the ap- 
 pellee desires to avail himself of an error committed against him, 
 either for the purpose of preventing a reversal of the judgment 
 appealed from, or for the purpose of obtaining some affirmative 
 relief, or of vindicating some right, he must, as a general rule, 
 file an assignment of cross-errors. 4 It may be said with safety 
 that the general rule is that an appellee can reap no advantage 
 from adverse rulings unless he properly presents them on appeal 
 by assigning them as the law and the rules of the court direct. - 
 Where no cross-errors are assigned a bill of exceptions taken 
 
 1 Under the rules of practice all such Koon, 117 111. 511; Pollard v. King, 63 
 
 issues as those formed upon a plea or 111. 36; Dickson v. Chicago, etc., Co., 
 
 motion of the character named in the Si 111. 215; Johnson v. Maples, 49 111. 
 
 text, are submitted to the court for de- 101, 105. In the case first cited it was 
 
 cision upon written evidence in the said: "As no cross-errors have been 
 
 form of affidavits or depositions and assigned on the record, counsel are in 
 
 written briefs. no position to find any fault with the 
 
 * Dutton v. Dutton, 30 Ind. 452. ruling of the court. Had they desired 
 8 State v. First National Bank, 89 to call in question the ruling of the 
 
 Ind. 302; Nichol v. Henry, 89 Ind. 54. court they should have excepted to the 
 
 * Rule IV. Hayes v. O'Brien (111.), decision of the court and assigned cross- 
 26 N. E. Rep. 601; Hollingsworth v. errors." 
 
 23
 
 354 APPELLATE PROCEDURE. 
 
 by the appellee, as it is held, will not be noticed, 1 but we sup- 
 pose that this genera] rule does not always hold good, for it 
 seems to us that where a bill, although taken by the appellee, 
 contains recitals directly connected with the main questions and 
 essential to a full understanding of them, it should be considered 
 in determining questions presented by the appellant's assign 
 me::t of errors. It can not, however, be considered in the ab- 
 sence of an assignment of cross-errors for the purpose of mak- 
 ing directly available an error committed against the appellee, 
 but it may, as we believe, be considered in determining whether 
 the errors alleged by the appellant were in fact committed or 
 were prejudicial. Ordinarily, as we have substantially said, 
 errors committed against the appellee will not be noticed for 
 anv purpose unless properly brought before the appellate tri- 
 bunal by an assignment of cross-errors. 2 Where a record is 
 amended by a nunc pro tunc order and the proceedings which 
 secured the order are carried up, the appellee can not avail 
 himself of any error in the proceedings unless he has filed an 
 assignment of cross-errors appropriately assailing the rulings 
 made in such proceedings. 3 In one of our cases it is held that 
 if a complaint is not challenged by an assignment of cross-errors 
 its sufficiency can not be considered. 4 Where the complaint 
 of an appellant is appropriately questioned by an assignment 
 of cross-errors and it is incurably bad, the judgment will be 
 affirmed without remanding the case. 5 Where, however, the 
 complaint can be amended so as to cure defects the court ma}' 
 reverse the judgment at the costs of the appellant, and is not 
 bound to affirm the judgment because of the defective com- 
 plaint. 6 So, upon the same principle, no question upon the 
 admission of incompetent evidence can be successfully made 
 by an appellee who has not filed an assignment of cross-errors. 7 
 
 1 White v Allen, 9 Ind. 561. * Anderson, etc., Co. v. Thompson, 
 
 1 Nutter v. Junction R. Co., 13 Ind. 88 Ind. 405. 
 
 479. In the case cited the ruling the 5 State v. Harris, 89 Ind. 363, 367. 
 
 appellee sought to make available was 6 McCole v. Loehr, 79 Ind. 430; 
 
 in overruling a demurrer of the appel- Goodman v. Niblack, 102 U. S. 55 r >; 
 
 lee to the appellant's complaint. See, Robertson v. Cease, 97 U. S. 646. 
 
 also, Jenkins v. Peckinpaugh, 40 Ind. 7 Evansville, etc., Co. v. Mosier. 114 
 
 133. Ind. 447. 
 
 3 Adler v. Sewell, 29 Ind. 598.
 
 PLEADINGS OF THE APPELLEE. 355 
 
 [n some peculiar cases a ruling adverse to the appellee can be 
 used to destroy a specification of error made by the appellant, 
 as, for instance, where the appellant secures the exclusion of 
 evidence offered by the appellee the latter may show such a 
 ruling to prevent a reversal because evidence of the same kind 
 offered by the appellant is excluded, 1 but such cases are marked 
 exceptions to the general rule. 
 
 § 417. Nature of the Assignment of Cross-Errors — An assignment 
 of cross-errors is not a plea in confession and avoidance, for it 
 does not confess the errors assigned by the appellant in cases 
 where there is a common joinder. It is in the nature of a coun- 
 ter-claim or cross-complaint in the trial court. It pleads inde- 
 pendent affirmative matter, for, when properly framed, it pre- 
 sents questions upon rulings adverse to the appellee, and does 
 not stand upon the same rulings as those relied upon for the 
 reversal of the judgment assailed by the appellant's appeal. It 
 is independent in the sense that it does not connect itself with 
 other pleas nor blend with the appellant's assignment of errors, 
 but it is, nevertheless, connected with and grows out of the 
 main controversy. The decisions are that the appellant can 
 not dismiss the appeal so effectively as to carry with it the as- 
 signment of cross-errors. 2 The practice has been to decline to 
 dismiss where the appellee insists upon retaining the appeal 
 upon the assignment made by him. 
 
 § 418. The Object of the Assignment of Cross-Errors — Primarily 
 the object of the rule permitting the assignment of cross-errors 
 is to enable the appellate tribunal to adjudicate upon all ma- 
 terial questions in one appeal and thus prevent a multiplicity of 
 appeals. 3 At common law cross-petitions in error were allowed. 
 
 1 See " Invited Error," post. son why cross-petitions in error should 
 
 2 Feder v. Field, 117 Ind. 386. The not be allowed equally as in original 
 appellee may elect to insist upon the actions. They were allowed at common 
 retention of the appeal on his assign- law and there is nothing in the code 
 ment of cross-errors. The Beeswing, which forbids their use. On the con- 
 10 Law. Rep. P. D. 18. trary they are calculated to subserve a 
 
 3 In the case of Shinkle v. First Na- leading object of the code, namely to 
 tional Bank, 22 Ohio St. Rep. 1516, 522, prevent multiplicity of suits, and to ren- 
 it was said: ''There is no good rea- der litigation simple, cheap and speedy."
 
 356 
 
 A.PP1 1.1. All: PROCEDURE. 
 
 Under our code, blending, as it does, the principles of equity 
 and law procedure, but greatly favoring the former, there is 
 strong reason for extending the doctrine that it is the duty of 
 the courts to settle the entire controversy where the questions 
 involved are presented to them. If it be true, as it surely is, 
 that a leading purpose of cross-petitions in error, or of assign- 
 ments of cross-error, is to secure a complete adjudication, then, 
 it is a manifestly logical conclusion that if the cross-errors en- 
 title the appellee to affirmative relief beyond the mere affirm- 
 ance of his judgment full relief should be awarded him when 
 he appropriately insists upon it. This rule has been enforced 
 in many cases appealed upon special findings, but in those 
 cases it was not directly affirmed that such relief was proper 
 although that is the tacit assumption. In one case a judgment 
 was reversed upon cross-errors assigned by the appellee and a 
 direction given as to the course to be pursued by the trial court. 1 
 The authorities show that the practice of assigning cross-errors 
 is favored for the reason that it enables the court in one case 
 and upon one record to award full affirmative relief to the party 
 entitled to it. 2 It seems to us very clear upon principle that the 
 assignment of cross-errors may, in the proper case and upon 
 
 See, also, Bundj v. Ophir Iron Co., 
 35 Ohio St. 8o. Much to the same 
 effect is the language of our court in 
 Feder v. Field, 117 Ind. 386, where it 
 was said: "The rule has much to com- 
 mend it. Under its operation one ap- 
 peal brings to the appellate court the 
 entire controversy. By the one appeal 
 as much can be accomplished as by two 
 distinct appeals. If distinct appi 
 were taken, then the only method of 
 confusion would be to consoli- 
 and this, while it would 
 mplish no more would greatly in- 
 e the record and augment the 
 costs. The rule is in harmony with the 
 spirit of our code, since it tends to bring 
 the merits of a controversy before the 
 court in a short and simple method." 
 All equitable rules run in one direction 
 and that is against the dissection of a 
 
 case into parts. Ex farte Sweeney, 
 126 Ind. 583; Chapell v. Shuee, 117 
 Ind. 4S1 ; Wood v. Ostram, 29 Ind. 177. 
 In jurisdictions where the practice is to 
 allow cross-appeals the appellate tri- 
 bunal directs the main appeal and the 
 cross-appeal to be consolidated. Hid- 
 dingh v. Dempsea, 12 App. Cases (H. 
 L.), 107. 
 
 'Johnson v. Culver, 116 Ind. 2^, 
 289. The subject is fully considered in 
 Feder v. Field, 117 Ind.3S6. See, also, 
 Cleveland, etc., Co. v. Closser, 126 Ind. 
 34S, 369. 
 
 2 Shinkle v. First National Bank, 22 
 Ohio St. 516; Collins v. Davis, 32 Ohio 
 St. 76; Smith v. Wright, 71 111. 167. 
 See, generally, Chicago, etc., Co. v. 
 Peck, 11: 111. 40S; Wabash, etc., Co. v. 
 Goodwine, 18 Bradw. (111. App.) 65.
 
 PLEADINGS OF THE APPELLEE. 357 
 
 due request, secure the appellee just relief and that such relief 
 can not always be awarded by a mere affirmance of the judg- 
 ment. There is very little force, or, indeed, plausibility, in the 
 argument sometimes made that the appellee should appeal if 
 not content with the rulings of the trial court. It may well be 
 that he is satisfied to suffer some wrong rather than prolong 
 the litigation, and for that reason does not himself prosecute 
 an appeal. If the appellant elects to prolong the litigation he 
 has no cause to complain because the appellee asks all that he 
 is entitled to receive from the courts of his country. 
 
 § 419. Effect of the Assignment of Cross-Errors — If the appellee 
 is content with the simple affirmance of the judgment from 
 which the appeal is prosecuted and asks no more, the court 
 will pronounce a decision without noticing the assignment of 
 cross-errors. 1 According to the decision in one of our cases 
 an appellee can not complain of a failure to pass upon cross- 
 errors duly assigned in case the judgment is affirmed. 2 This 
 may possibly be the correct general rule, but it is not without 
 exceptions, for there are certainly cases where justice demands 
 that the appellee should be awarded affirmative relief. If a 
 complaint is incurably bad the appellee has, as we believe, a 
 right to have it so decided, although the judgment may be sus- 
 tainable on other grounds, in a case where such a decision may 
 prevent a second action. Public policy requires that such a 
 question should be decided so that litigation may not be use- 
 lessly prolonged. 3 
 
 § 420. Groundwork of the Assignment of Cross-Errors — The foun- 
 dation for the assignment of cross-errors must be laid in the trial 
 court. There the proper exceptions must be taken and reserved, 
 and there must be filed the motions requisite to present for re- 
 view the rulings deemed erroneous and prejudicial to the ap- 
 
 1 Kammerling v. Armington, 58 Ind. not be considered. It seems that some 
 
 384. See Huston v. Vail, S4 Ind. 262, of the statements of the opinion in that 
 
 26S. In Thomas v. Simmons, 103 Ind. case are too broad. Rochester v. Lev- 
 
 538, 546, it is held that it" the appellee ering. 104 Ind. 562. 
 
 does not insist upon his assignment of 2 Case v. Johnson, 70 Ind. 31, 33. 
 
 cross-errors the errors so assigned will 3 State v. Harris, So. Ind. 363.
 
 APPELLATE PROCEDURE. 
 
 pellee. 1 It is not within the power of the appellee to present 
 questions for the first time on appeal, except possibly where 
 the complaint wholly fails to state a cause of action, or where 
 there is no jurisdiction of the subject. 
 
 § 421. Transcript — Where the transcript brought up by the ap- 
 pellant necessarily presents the case upon the cross-errors as 
 well as upon the errors assigned by appellant, that one transcript 
 is sufficient. 2 But the appellee can not in all cases compel the 
 appellant to bring up the parts of the record exhibiting the 
 rulings on which cross-errors are assigned. 3 If, however, those 
 parts of the record are necessary to exhibit the rulings on which 
 rest the appellant's assignments of errors, they must be em- 
 bodied in the transcript, and if they are in the transcript the 
 appellee may take advantage of them. The appellant is under 
 no obligation to present a transcript for the benefit of the ap- 
 pellee, since the statute gives him the right to direct what part 
 of the record shall be certified up by the clerk, 4 and he is not 
 required to do any act such as that of presenting a transcript 
 of the complete record for the benefit of his adversary. 5 
 
 § 422. Notice of the Assignment of Cross-Errors not required when 
 filed within the time limited — An assignment of cross-errors is a 
 pleading in due course, and of such pleadings the appellant 
 must take notice without special information. In filing such a 
 •pleading the appellee does no more than what the appellant is 
 bound to know may be done as of course, without special leave 
 or notice. This is the effect of the decisions upon the question. 6 
 But to dispense with notice the assignment must be made within 
 the time fixed ; if not filed within that time notice. is essential. 
 
 1 Merritt v. Richey, 127 Ind. 400. submission of the cause by the appel- 
 
 2 Feder v. Field, 117 Ind. 3S6; Mer- lant." Perkins' Practice, 323. Judge 
 ritt v. Richey, 127 Ind. 400. Judge Buskirk adopts this statement of the 
 Perkins says: "The appellant can only law. Buskirk's Practice, 119. 
 
 assign errors occurring against him- 3 Feder v. Field, 117 Ind. 3S6, 389. 
 
 self. He can not complain of errors * R. S. 1SS1, § 649. 
 
 in his favor. But the appellee may 5 Hall v. King, 29 Ind. 205. 
 
 on the appellant's record, complain of 6 Smith r\ Wright, 71 111. 167; Bundy 
 
 them, by way of a cross-assignment of v. Ophir Iron Co., 35 Ohio St. So; 
 
 s, and thii'- bring them under re- Feder v. Field, 117 Ind. 3S6. 
 view on the single appeal, and on the
 
 PLEADINGS OF THE APPELLE1 359 
 
 § 423. Time within which Cross-Errors may be Assigned — An as- 
 signment of cross-errors may be filed, as of course, at any time 
 within sixty days after the submission of the cause. If not 
 filed within that time special leave must be asked in writing 
 and written notice served upon the appellant. A satisfactory 
 excuse must be shown for not making the assignment within 
 the time designated or leave to assign will be denied. The 
 general rule is that the assignment must be filed within one 
 year from the time the judgment appealed from was rendered. 1 
 It is evident, however, that this general rule can not always 
 govern. There may, it is clear, be circumstances which will 
 prevent its operation. Thus, it may well be that the appeal is 
 taken so near the end of the year that compliance with the rule 
 is impossible. So, too, there may be some element of fraud or 
 accident which will take the particular case out of the general 
 rule. 
 
 § 424. Answer to the Assignment of Cross-Errors not required — 
 
 The practice has been to consider assignments of cross-error 
 without plea or answer. 2 This seems the correct practice, since 
 the fact that the appellant appeals justifies, indeed requires, the 
 presumption, that he denies that there are errors in his favor 
 precluding a reversal, or the award of relief to his adversary. 
 It is not necessary to answer what is presumed as matter of 
 law, nor would any good purpose be subserved by an answer. 
 It is possible that there may be cases where a special answer 
 would be proper, but they would be extraordinary ones. 
 
 1 Rule IV. do so. White v. Allen, 9 Ind. 561, cited 
 
 2 Judge Perkins says: " The appellant by the author quoted, does not touch 
 may answer errors assigned by the ap- the question. The practice has been 
 pellant as in other cases." Perkins' so long continued and so uniform that 
 Practice, 123. Possibly he may, if he it has the full force of a statutory rule. 
 elects, answer, but he is not bound to
 
 CHAPTER XX. 
 
 SUBMISSION. 
 
 {) 425. Submission by agreement. 
 
 426. Effect of a submission by agree- 
 
 ment. 
 
 427. Rights not waived by an agree- 
 
 ment submitting the cause. 
 42S. Forced submission. 
 
 429. Submission on call. 
 
 430. Importance of the submission. 
 
 431. Submission of appeals in term. 
 
 $ 43 2 - 
 
 433- 
 
 434- 
 
 435- 
 436- 
 
 437- 
 
 Nature of the notice required in 
 cases where the appeal is in 
 term. 
 
 Submission in cases appealed 
 upon notice under act of 1SS5. 
 
 Submission upon the applica- 
 tion of the appellee. 
 
 Notice under the act of 18S5. 
 
 Objecting to submission. 
 
 Setting aside the submission. 
 
 § 425. Submission by Agreement — Parties may submit a cause 
 by an agreement entered upon the transcript or filed with the 
 clerk. No particular form is required ; any form of writing 
 embodying an agreement to submit the cause will be sufficient. 
 The agreement must, however, be in writing unless made in 
 open court. 1 
 
 § 426. Effect of a Submission by Agreement— An agreement to 
 submit dispenses with notice and waives objections to process. 2 
 It does not, however, waive substantial objections to the tran- 
 script, for after submission by agreement a certiorari may be 
 obtained. A submission by agreement, as it has been held, 
 waives some objections that would not be waived by a submis- 
 sion under the law. Submission by agreement waives a pend- 
 ing motion to dismiss the appeal. 3 It will waive defects in the 
 
 1 Rule XV. 
 
 2 Rabb v. Graham, 43 Ind. 1, distin- 
 guishing Aylesworthw. Milford, 38 Ind. 
 226; State v. Board, 92 Ind. 133; Cooper 
 v. Cooper, S6 Ind. 75; State v. Walters, 
 64 fnd. 226; His^bee v. Rodeman (Ind.), 
 2S N. E. Rep. 442. 
 
 ler V. Wampler, S4 Ind. 172; 
 Summers v. State, 51 Ind. 201. As 
 
 submission by agreement is a con- 
 venient, speedy and inexpensive mode 
 of submitting causes and has but 
 little, if any, stronger effect than a 
 joinder in error, the rule forbidding 
 subsequent pleas or motions should 
 not, it seems to us, be too rigidly en- 
 forced. 
 
 (360)
 
 SUBMISSION. 
 
 361 
 
 clerk's certificate to the transcript. 1 In many cases it is held 
 that it will waive the objection that notice has not been given 
 co-parties. 2 In one case it is held that an irregularity in the 
 assignment of errors is waived by such a submission, 3 but this 
 doctrine is one to be limited and not extended. Error in nam- 
 ing parties in the assignment of errors is not available after 
 submission by agreement. 4 Other decisions illustrate and en- 
 force the rule that a submission by agreement waives errors in 
 the procedure connected with and involved in the appeal unless 
 they are of a very substantial character. 3 We are not to be 
 understood as affirming that it is only in cases where there is a 
 submission by agreement that irregularities or technical errors 
 are waived by the failure to object before submission ; on the 
 contrary, we desire to be understood as saying that the general 
 rule is that as to such matters there is a waiver where there is 
 no opportune objection. But it is safe to say that, according 
 to the decisions 6 and the practice, 7 the rule is more strictly ap- 
 
 1 Walker f. Hill, in Ind. 223; Cooper 
 v. Cooper, S6 Ind. 75. 
 
 2 People's Savings Bank v. Finney, 63 
 Ind. 460; Brooks v. Doxey, 72 Ind. 327; 
 Field v. Burton, 71 Ind. 3S0; Easter v. 
 Severin, 78 Ind. 540; Hendricks v. 
 Frank, S6 Ind. 27S; Martin v. Orr, 96 
 Ind. 491; Burk v. Simonson, 104 Ind. 
 173; Hunter v. Chrisman, 70 Ind. 439; 
 Talbut v. Berkshire, etc., Co., So Ind. 
 434; Dobbins v. Baker, So Ind. 52; De- 
 Haven v . DeHaven, 77 Ind. 236. 
 
 3 Ridenour v. Beekman, 6S Ind. 236. 
 
 4 Truman v. Scott, 72 Ind. 25S; Hin- 
 kle v. Margerum, 50 Ind. 240. 
 
 5 State v. Board of Commissioners, 
 92 Ind. 133; Wilson v. Hefflin, Si Ind. 
 35; Hadley v. Hill, 73 Ind. 442. 
 
 6 Heller v. Clark, 103 Ind. 591. In 
 the case cited a distinction was made 
 between a forced submission under the 
 law and a submission by agreement, 
 the court saying: "The third clause 
 of Rule XXXIX is not open to and 
 should not receive the construction 
 which counsel place upon it. The sub- 
 
 mission provided for in such rule is a 
 statutory or forced submission, brought 
 about by mere operation of law, and it 
 ought not to be held, as it seems to us, 
 that by his mere failure to file objec- 
 tions to such submission, either party 
 agrees thereto or waives any right which 
 he would otherwise possess." The 
 language used is rather broad and is to 
 be understood, as is always true of ju- 
 dicial opinions, with reference to the 
 case before the court, for the authorities 
 decisively show that some rights must 
 be asserted before submission or they 
 will be regarded as waived. The rule 
 referred to in the opinion from which 
 we have quoted is now known as Rule 
 XVII. 
 
 7 The practice is well settled although 
 not evidenced by the reported decisions. 
 The reason that the practice in the 
 cases referred to, and in similar ones, is 
 not shown by the reported cases is that 
 the questions generally arise on mo- 
 tions and are disposed of without writ- 
 ten opinions.
 
 362 APPELLATE PROCEDURE. 
 
 plied where there is a submission by agreement than it is where 
 the submission is an enforced one under the law. 
 
 § 427. Rights not waived by an Agreement Submitting the Cause- 
 Substantial rights or rights of a general jurisdictional nature 
 are not waived by an agreement to submit, although rights af- 
 fecting jurisdiction of the person are waived. Rights of the 
 nature last mentioned, that is, rights affecting only the jurisdic- 
 tion of the person, may, as we have often said, in substance, be 
 waived by a much less decisive act than an agreement submit- 
 ting the cause for decision. It is implied in every agreement to 
 submit that there is no waiver of the right to show that specifi- 
 cations of error are so destitute of force as not to present any 
 question for review. This is so because the party in agreeing 
 to submit the cause does not consent that questions may be con- 
 sidered which are not presented ; he simply consents that the 
 court shall decide such questions as the assignment of errors 
 presents, waiving only irregularities and informalities in the 
 mode of alleging errors but waiving no material matter of sub- 
 stance. Thus, an agreement submitting a cause does not waive 
 a failure to file the transcript within the time allowed by law. 1 
 An agreement to submit does not waive the right to object that 
 the appeal was not perfected within the time prescribed. 2 Such 
 an agreement does not waive the right to point out matters im- 
 properlv in the transcript, nor does it, as said in the preceding 
 paragraph, waive a right to a certiorari 'in the proper case. 3 
 
 § 428. Foreed Submission— A submission brought about other- 
 wise than by agreement of the parties is generally called a 
 
 1 Hubertz v. State. 50 Ind. 374. Same 3 Rule XII. It may be said here, as 
 
 case on petition for rehearing, 50 Ind. well as elsewhere, that the rules of the 
 
 -,- Appellate Court are substantially the 
 
 J Day v. School City of Huntington, same as those of the Supreme Court, 
 7 Ind. 280. This decision is clearly and that in referring to rules we mean 
 right tor the reason that the time for the Supreme Courl rules unless other- 
 perfecting an appeal is essentially ju- wise indicated. As we are explaining 
 risdictional, and it can not be prolonged references, we may also add that the 
 by agreement contrary to the provis- reference " R. S." is to the revision of 
 ions of the lawuponthe subject. Ante, the Indiana statutes made in 1SS1. un- 
 $§ 112, 12S. l< ss otherwise noted.
 
 SUBMISSION. 3(33 
 
 "forced submission," although a more appropriate term would 
 be "submission by operation of law." A submission by opera- 
 tion of law is essential in all cases where there is no express or 
 implied agreement to submit,' and such a submission can only 
 be effective where the substantial requirements of the law re- 
 specting the acts to be done in order to perfect an appeal have 
 been obeyed. It is in general true that a submission by opera- 
 tion of law is not regular or effective unless a perfected appeal, 
 taken within the time limited, is pending; if any essential step 
 in the procedure has been omitted the submission may be set 
 aside upon the seasonable and appropriate application of a 
 party who has not waived his rights or is not in default. 2 
 
 § 429. Submission on Call — Where there is a perfected appeal 
 there may be, as a rule of court provides, a submission on the 
 call of the docket. 3 It is, however, optional with an appellee, 
 where the case comes under the rule of court, to either submit 
 the case or obtain an order dismissing the appeal. The change 
 in the practice wrought by the act of 1885 4 and the rule based 
 upon it have rendered the rule of court of very little practical 
 importance, but it is still in force and there may be cases, al- 
 though rare ones, in which it may be invoked. 
 
 § 430. Importance of the Submission — It is important that a 
 case should be properly submitted for the reason that it is not 
 ripe for decision until after submission, 5 and for the further rea- 
 son that the time for filing briefs runs from the date of the sub- 
 mission. Thus, in the case of appeals in term the submission 
 takes place by operation of law when the case has been in the 
 appellate tribunal for thirty days. So, where the appeal is upon 
 
 1 In Archey v. Knight, 61 Ind. 311, 2 Johnsons. Miller, 43 Ind. 29; Burk- 
 
 314, it is held that if a party has actual am v. McElfresh, SS Ind. 223. See Riley 
 
 notice of an appeal and does such acts v. Murray, 8 Ind. 354; Board v. Brown, 
 
 as a party would do who proceeded 14 Ind. 191. 
 
 upon the theory that there had been an 3 Rule XV. 
 
 effective submission, he can not, after * Elliott's Supp., § 2S. 
 
 long delay, successfully apply to set 5 Judge Buskirk says: " A cause can 
 
 aside the submission, although had he not be considered or decided by the 
 
 proceeded promptly his application Supreme Court until it is submitted." 
 
 might have been granted. Buskirk's Pr. 291.
 
 364 APPELLATE PROCEDURE. 
 
 notice the submission takes place by operation of law at the 
 expiration of the time fixed by the statute and the rule framed 
 to give it practical effect. 1 
 
 §431. Submission of Appeals in Term — An appeal in term, 
 '« when perfected within the time limited " is deemed submitted 
 within thirty days after the transcript is filed in the office of the 
 clerk of the Supreme Court. 2 The act of November, 1885, 
 contains the provision of which we have given the substance, 
 and also adds, and within thirty days " after the notice is given 
 as above required." The act, as it has been held in a number 
 of unreported cases, does not require notice to be given in cases 
 of appeals in term. Its framers evidently had in mind the 
 provisions of the statute regarding the notice required in other 
 cases than term appeals. No statute can be construed as an 
 independent and isolated fragment, but must be taken in con- 
 nection with the great principles of the law and with other stat- 
 utes. 3 So that it is proper and necessary to look to other stat- 
 utes and to the general rules of law. Regard must be had to 
 the statute providing for notice as well as to the statute provid- 
 ing for appeals in term, and, taking these statutes into consid- 
 eration, it is clear that the legislature did not mean to change 
 the law respecting appeals in term. The act does require 
 either a perfected appeal in term, that is. one where the law has 
 been fully complied with, by praying an appeal, filing the bond 
 and the like, or an appeal upon notice, but it does not require 
 a notice to bring the parties into court where there is an effec- 
 tive appeal in term. The construction here placed upon the 
 act of 1885 respecting appeals in term is that given it by the 
 rules of the court 1 and that acted upon by the bar. The con- 
 
 1 Elliott's Supp., § 28; Rule XVII. visions of the statute respecting appeals 
 
 2 Elliott's Supp., § 28; Rule XVII. in term as well as violate the principle 
 
 3 Humphries v. Davis, ioo Ind. 274, referred to in the text. In the case of 
 2S4; Bradley v. Thixton, 117 Ind. 255; Holloran v. Midland RV Co. (Ind.), 28 
 Morrison v. Jacobv, 114 Ind. 84; Chi- X. E. Rep. 549, it is asserted that notice 
 
 etc., Co. v. Summers, 113 Ind. 10; is not required where the appeal is 
 
 Robinson v. Rippey, in Ind. 112. To taken in term time. 
 
 mstrue the act of 1885 as to require 4 See the last paragraph of Rule 
 
 notice where the appeal is taken in XVII. It has been so construed in 
 
 term mpletely nullify the pro- many instances where the question
 
 SUBMISSION. 3(]5 
 
 elusion, upon principle, must be that no notice is required to 
 bring the appellee into court where an appeal is fully perfected 
 in term and that the cause is to be regarded as submitted thirty 
 days after filing the transcript in the office of the clerk of the 
 Supreme Court. And this is the effect of the practical exposi- 
 tion given the statute. 
 
 § 432. Nature of the Notice required in cases where the Appeal is 
 in Term — The notice provided for in appeals in term is not a 
 notice of the appeal but a notice that submission has been 
 made. 1 There is a radical difference between a notice to par- 
 ties of an appeal and notice of an entry made after the appeal. 
 The notice of the appeal is essential to jurisdiction of the per- 
 son, the other is notice of a step taken after the acquisition of 
 jurisdiction. The notice of the submission is given by the 
 clerk, not by the parties, and its object is to convey informa- 
 tion of a step taken in the cause, but it is not essential to juris- 
 diction, nor, indeed, to the validity of the submission. The 
 duty of giving notice of the submission is enjoined upon the 
 clerk, and his neglect or refusal to perform it might, possibly, 
 entitle a party to an extension of time for the filing of a brief, or 
 to some relief of a similar nature, provided a satisfactory show- 
 ing is made, but it would certainly not entitle him to assail the 
 jurisdiction or to challenge the effectiveness of the submission. 
 The notice comes after jurisdiction attaches and after the cause 
 has been submitted under the law. It conveys information of 
 what has been done. It is clear, therefore, that the parties in 
 court are not absolved from the duty which rests upon all par- 
 ties duly given " their day in court," and that duty is to take 
 notice of the proceedings taken in the cause. 
 
 § 433. Submission in cases Appealed upon Notice under the Act of 
 1885 — By force of the act of 1885 appeals after term are "re- 
 garded as submitted after the expiration of thirty days from the 
 date of the service of the notice upon the appellee of the taking 
 of the appeal." 2 The law submits the cause without any formal 
 
 came up on motions respecting the fil- ' Rule XVII. 
 
 ing of briefs, the reinstatement of dis- 2 Elliott's Sup., § 2S. 
 
 missed appeals and the like.
 
 366 APPELLATE PROCEDURE. 
 
 or direct request or motion upon the part of the parties, where 
 notice of the appeal has been effectively given. The clerk en- 
 ters the formal submission but the submission is really made by 
 the statute. 
 
 § 434. Submission npon the Application of the Appellee — The 
 
 rule secures to the appellee a right to enforce submission. The 
 delay incident to notice bv publication may be obviated if the 
 appellee so desires, by filing the request and giving the notice 
 provided for by the rule. The acts required of the appellee 
 are so fully specified by the rule of the court that there is no 
 necessity to speak of the procedure at length. 
 
 § 435. Notice Under the Act of 1885— The act of 1885 is con- 
 fused and obscure, and unaided by the rule of court would be 
 almost, if not quite, incapable of practical enforcement. But 
 aided by the rule and the practice which has grown up under 
 it, there is no longer very serious difficulty in giving effect to 
 the act. It may now be regarded as firmly settled that only 
 one notice is required by the act, that is the notice of the ap- 
 peal ' If notice of the appeal is properly given no other notice 
 is required, except that given by the clerk after the order of 
 submission has been entered. Where personal notice is given 
 to the party or his attorney, ten days' notice is sufficient. Where 
 the notice is by publication thirty days' notice is required. But 
 a submission can not be enforced against the appellee until 
 thirty days after notice by publication is complete where notice 
 is given in that mode ; where there is personal notice a sub- 
 mission can not be forced until thirty days after the notice has 
 been given. Of course, no notice is effective until the time 
 fixed has expired. It is hardly necessary to suggest that we 
 are here speaking of forced submissions and are not referring 
 to submission by express agreement, or by an agreement im- 
 plied from acts or conduct. 
 
 § 436. Objecting to Submission — An appellee may, for good 
 cause, properly shown, resist a submission. Where a resistance 
 
 1 In other words the one notice ac- been filed and that it will be submitted 
 twofold purpose: it in- at the time designated therein. 
 i the appellee that an appeal has
 
 SUBMISSION. 3(57 
 
 is made the appellee is required to file written objections and 
 to accompany the objections by a verified statement that they 
 are made in good faith. When such objections and such ver- 
 ified statements are filed the clerk shall not enter a submission 
 but shall report the papers to the court. 1 
 
 § 437. Setting Aside a Submission — A submission may be set 
 aside for cause shown, but it will not be set aside as of course. 
 Where the record does not fully disclose the grounds upon 
 which the motion to set aside proceeds, the motion must be veri- 
 fied or supported by affidavit. Where a submission is entered 
 the presumption in the absence of countervailing facts is that 
 it was duly made, so that it is incumbent upon a party who as- 
 sails a submission to remove this presumption. Notice must be 
 given of the application to set aside a submission, for such an 
 application falls within the general rule requiring notice of mo- 
 tions. 2 Where a submission is once effectively made and en- 
 tered it remains in force until the final decision of the case al- 
 though a rehearing may be granted. 3 
 
 1 Rule XVI. 3 Rule XXXVII. 
 
 1 Rules VII, XIV.
 
 CHAPTER XXL 
 
 BRIEFS AND ARGUMENTS. 
 
 4438- 
 
 Briefs — Definition. 
 
 $ 449. 
 
 439- 
 
 General frame of the brief. 
 
 
 440. 
 
 Showing the manner in which 
 the questions arise. 
 
 45°- 
 
 441. 
 
 Stating the facts. 
 
 45 1 - 
 
 442. 
 
 Method of stating the facts. 
 
 
 443- 
 
 Correcting erroneous statements 
 of facts. 
 
 45 2 - 
 
 444. 
 
 Making the points. 
 
 453- 
 
 445- 
 
 Showing rulings to be wrong. 
 
 454- 
 
 446. 
 
 Stating propositions of law. 
 
 455- 
 
 447- 
 
 Citing authorities. 
 
 45 6 - 
 
 448. 
 
 Waiver of preliminary motions 
 
 
 
 by filing brief. 
 
 457- 
 
 Time within which the appel- 
 lant's brief must be filed. 
 
 Brief on cross-errors — Time of 
 filing. 
 
 Appellee's brief on the appel- 
 lant's assignment of errors. 
 
 Extension of the time for filing 
 briefs. 
 
 Oral arguments. 
 
 Application for oral arguments. 
 
 Limitation of oral arguments. 
 
 Statement of propositions for 
 argument. 
 
 Interchange of points for argu- 
 ment. 
 
 § 438. Briefs— Definition— In American appellate procedure 
 a brief is very different from the paper called by that name 
 prepared by an English attorney for an English counselor or 
 barrister. 1 Under our system a brief is a written presenta- 
 tion of the questions involved in a forensic controversy and of 
 the matters of fact and of law which demand investigation. 
 The primary object is to convey information to the court, and 
 this can not be done without clearly stating the manner in 
 which the controverted points arise, the facts which constitute 
 
 1 Parker v. Hastings, 12 Ind. 654; 
 Gardener v. Stover, 43 Ind. 356; De- 
 ford v. Urbain, 42 Ind. 476; Roy v. 
 State, 58 Ind. 378; Harrison v. Hedges, 
 60 Ind. 266; Millikan v. State, 70 Ind. 
 283; Martin v. Smith. 57 Ind. 62; Ar- 
 buckle v. Biederman,94.Ind. 16S; Land- 
 werlen v. Wheeler, 106 Ind. 523; Now- 
 lin v. Whipple, 89 Ind. 490; Northwest- 
 ern Mutual Life Ins. Co. v. Haezlett, 
 
 105 Ind. 212; Bray v. Franklin Life 
 Ins. Co., 6S Ind. 6; Wilson v. Hollo- 
 wav, 70 Ind. 407; Newcomer v. Hutch- 
 ings, 96 Ind. 119; Irwin v. Lowe. 89 
 Ind. 540; Powers v. State, 87 Ind. 144; 
 Louisville, etc., Co. v. Donnegan, in 
 Ind. 179; Bybee v. State, 94 Ind. 443; 
 City of Anderson v. Neal, 88 Ind. 317, 
 320; Wright v. McLarinan, 92 Ind. 103. 
 
 (368)
 
 BRIEFS AND ARGUMENTS. 369 
 
 the groundwork of the legal dispute, and the governing pro- 
 positions of law. A subsidiary object is to convince the court 
 where the law and justice of the case lie. In every well pre- 
 pared brief will be found a concise and clear statement of the 
 manner in which the questions arise, a succinct and methodical 
 statement of the facts, and a perspicuous array of arguments 
 and authorities. 
 
 § 439. General Frame of the Brief — The frame of a brief deter- 
 mines its method, and method is of great importance in con- 
 veying information or producing conviction. 1 If the method 
 adopted leads to illogical cross divisions, to the omission of 
 material points, or to the violation of logical order, the result 
 will be a brief of which no lawyer should be proud. The frame 
 work, if laid out in symmetrical proportions and in due order, 
 will add greatly to the power of the brief and do much to dis- 
 pel confusion and clear away obscurities. Tt is, of course, not 
 possible to lay down a general rule which will fit all cases, for 
 in some cases it is better to begin with a statement of the ques- 
 tions presented and the manner in which they arise; 2 in others 
 it is better to begin with a statement of the facts. 
 
 1 Emerson, as is well known, ranked ification shall state as particularly as 
 method in the chief place, and asserted may be, in what the decree is alleged to 
 that method constituted the great vir- be erroneous. When the error alleged 
 tue of an argument or address. It may is to the admission or rejection of evi- 
 be that the great thinker somewhat dence the specification shall quote the 
 over-valued method, but, however this full substance of the evidence admitted 
 may be, it is undoubtedly true that it is or rejected. When the error alleged is 
 one among the highest virtues of argu- to the charge of the court, the specifi- 
 mentative discourse. Choosing the cation shall set out the part referred to 
 wrong method is much like selecting in totidcm verbis, whether it be instruc- 
 tive wrong road; it is possible to reach tions given or instructions refused. A 
 the destination intended but the way brief of the argument, exhibiting a clear 
 will be long and crooked. statement of the points of law or fact 
 
 2 The following extracts from Rule to be discussed with a reference to the 
 XXI of the Supreme Court of the pages of the record, and the authorities 
 United States suggest a good plan for relied upon in support of each point." 
 framing a brief: "A concise abstract, This rule has been strictly enforced, 
 or statement of the case, presenting Ryan v. Koch, 17 Wall. 19; Portland 
 succinctly the questions involved and Co. v. United States, 15 Wall. 1; Lucas 
 the manner in which they are raised, v. Brooks, 18 Wall. 436; School Dis- 
 In cases brought up by appeal the spec- trict v. Ins. Co., 101 U. S. 472. We do 
 
 24
 
 370 APPELLATE PROCEDURE. 
 
 § 440. Showing the Manner in which the Questions Arise — It is 
 necessary that the appellate tribunal should be fully informed 
 as to the manner in which the questions arise and where and 
 how they are presented by the record. It is not enough to as- 
 sert that there is a designated question in the record ; general 
 assertions are valueless. The manner in which the question 
 assumed to be presented arose is required to be specifically and 
 particularly stated. It is to be constantly kept in mind that the 
 brief should supply the court with information and that the 
 court must be referred to the record to verify the statements 
 of the brief. Not only so, but more, for the court is unac- 
 quainted with the record, and hence it is incumbent upon coun- 
 sel to specifically refer to the particular part of the record which 
 exhibits the ruling sought to be brought under investigation. 
 In other words, it is the duty of counsel to acquaint the court 
 with the parts of the record of which an examination is desired. 
 The court will not hunt through the record to discover the parts 
 of it which counsel assume exhibit the rulings which they 
 desire considered. 1 In all cases where a knowledge of the 
 pleadings is necessary to enable the court to fully and clearly 
 understand the questions discussed there should be a clear and 
 accurate synopsis of the pleadings. It is seldom necessary to 
 copy any pleading at full length — indeed, in most cases confu- 
 sion is produced by doing so — but there may be cases where 
 the decision depends upon the exact language emploved by the 
 pleader, and in such cases so much of the pleading as is neces- 
 sary to adequately present the question should be literally copied. 
 
 not, of course, refer to this rule as con- Woods, 67 Ind. 319; Bray v. Franklin 
 trolling, but, on the contrary, refer to Life Ins. Co., 6S Ind. 6; Sanders v. Scott, 
 it as merely suggestive of the general 68 Ind. 130; Martin v. Martin, 74 Ind, 
 frame of a brief. It is unnecessary un- 207; City of Anderson v. Neal, 88 Ind. 
 der our practice to be as specific as un- 317; Louisville, etc., Co. v. Donnegan, 
 der the Federal rule, for the rule really 11 1 Ind. 179. The rules of the court 
 makes what is there denominated a are explicit upon this subject. Even a 
 brief, both a brief and an assignment of supersedeas brief must refer to the tec- 
 errors, ord "by pages and lines." Rule XXII. 
 'This is an inexorable rule and it The requisites of a brief are pointed out 
 has been enforced in very many cases, in Rule XXVI. The courts every v 
 Brunner v. Brennan, 49 Ind. 9S; Low- require a strict compliance with such 
 der v. Lowder, 58 Ind. 538; Rout v. rules.
 
 BRIEFS AND ARGUMENTS. 371 
 
 WhiJe the general rule is that condensation, and not expansion, 
 increases the power of a brief, there are, nevertheless, cases 
 where a full and complete statement is indispensably necessary. 1 
 Where a synopsis of the pleadings is all that is required, their 
 substance only should be given. It weakens a brief to over- 
 load it with useless matter, and it is a serious mistake to sup- 
 pose that a brief is a mere reproduction of the record. 
 
 § 441 . Stating the Facts — It is well enough to say, at the outset, 
 that there is an essential difference between the evidence and 
 the facts. 2 It is one thing to state facts and another to state 
 evidence. "Facts are the ultimate conclusions established by 
 the evidence," 3 hence the evidence is the mode or means of 
 proof, not the result of proof. In affirming that facts must be 
 stated it is not implied that the evidence must be rehearsed ; 
 on the contrary, the affirmation of the proposition that the facts 
 must be stated, 1 excludes the implication that the evidence 
 must be set forth. It may sometimes be necessary to state the 
 evidence, but not often. Where the objection relates to a par- 
 ticular part of the evidence, then, that part may be stated and 
 the substance of such other evidence as is connected with it 
 given in short form, but this is, as a general rule, a matter 
 which comes after the general facts of the case have been stated. 5 
 
 1 It is a mistake to suppose that the pleadings, special verdicts, and special 
 duty of counsel is invariably performed findings must state the facts and notev- 
 by a general reference to a pleading, to idence. 
 
 a series of instructions, or the like, for 3 Kirkpatrick v. Reeves, 121 Ind. 280. 
 
 it is sometimes — although rarely — nee- See, generally, Louisville, etc., Co. v. 
 
 essary to set forth the pleading or the Cauley, 119 Ind. 142; Phelps v. Smith, 
 
 particular instruction. Rule XXVI. 116 Ind. 387; Bartholomew v. Pierson, 
 
 While it is true always that the parts 112 Ind. 430; Stix v. Sadler, 109 Ind. 
 
 of the record requisite to a full under- 254. 
 
 standing of the question must be re- * There may be instances where, for 
 
 ferred to with particularity, it is not the purpose of showing the effect of a 
 
 always true that such a reference is of particular item of evidence, it is proper 
 
 itself sufficient. to quote literally from the record, but 
 
 2 There is an essential and important this is a different matter from that dis- 
 difference between the facts and the cussed in the text, for what is there re- 
 evidence. It is one thing to rehearse ferred to is the general statement of the 
 the evidence and quite another to state facts of the case. 
 
 the facts. Work of The Advocate, 24, 5 The general statement of facts 
 25. The difference is illustrated in the should be such as to put the court in 
 cases enforcing the familiar rules that possession of the general nature of the
 
 APPELLATE PROCEDURE. 
 
 § 442. Method of Stating the Facts — A clear and concise state- 
 ment of facts, neither too prolix nor yet too meager, is an ad- 
 mirable thing. It has been .said again and again that he who 
 can " well state the facts is a man of rare ability/' 1 Facts ex- 
 tracted from the evidence and grouped together in an orderly 
 method are always more quickly perceived and more clearly 
 comprehended than facts loosely stated. Method is one of the 
 chief virtues of the statement of facts for an appellate tribunal. 
 The statement there required is very different from that re- 
 juired in the address to the jury, for there the evidence is not 
 weighed nor the probabilities measured. Mere supporting 
 arts or assisting probabilities are of no value in the brief on 
 appeal. The leading and controlling facts are the only ones to 
 which the appellate tribunal can, as a general rule, give a con- 
 sideration. It is in general true that the facts should be stated 
 in correct chronological order, 2 but this rule does not always 
 hold good ; indeed, no general rule can be framed which will 
 be free from exceptions. But whatever the order adopted, to 
 that order there should be unvarying adherence. Information 
 so conveyed as to secure an abiding lodgement in the minds of 
 the court is the leading object of a statement of facts, and 
 whatever method is most likely to accomplish that object is the 
 best. At the outset, as suggested by the author quoted in the 
 note, clearness and strength are gained, and, indeed, can only 
 
 case, ami specific questions should be duce order out of chaos, is a great mis- 
 taken up afterwards in logical order. take. You must start with some clear 
 1 See fudge Dillon's article on "Stat- and logical theory as to what the facts 
 ing the Case" in Rhetoric as an Art really are, for if your facts do not com- 
 of Persuasion, 28; Washburn's " Study mend you to the appellate court, it 
 and Practice of the Law," 181; 23 may look with some suspicion on your 
 tral Law Journal, 223. "But, if logical conclusions, howe\ cr convincing 
 you determine to appeal, when you they may be." — On making a Brief on 
 got the appeal book into shape Appeal, New York Law Journal. In 
 • a very careful statement of the an article on the preparation of briefs, 
 This is tar more important than Judge Dillon says of stating the facts: 
 ipears to many lawyers, especially " Not only the first step, but the most 
 where a case is long and complicated, important. Not only the most impor- 
 and where the facts to be intelligible tant, but it may surprise the legal reader 
 must he extracted from a large mass of to add, the most difficult.'''' ^Am.Law 
 evidence and grouped together. To Rec. 53, 54. The italics are Judge Dil- 
 suppose the court will do for you what Ion's. 
 you will not do for yourself, and pro- 2 Buskirk's Pr., 325.
 
 BRIEFS AND ARGUMENTS. 373 
 
 be certainly secured by forming a definite theory. In the ab- 
 sence of such a theory the grouping will be irregular, the or- 
 der disconnected, and the entire brief obscure and feeble. 
 
 § 443. Correcting Erroneous Statements of Fact— The presump- 
 tion is that facts stated in the brief of counsel are correctly 
 stated and that the record is truthfully represented. As it has 
 been said, " counsel's statement of the facts is a certificate of 
 fairness and accuracy," and the courts will assume, in the ab- 
 sence of a countervailing showing, that the facts are fairly 
 stated and that there is neither intentional wrong nor innocent 
 mistake. It is, therefore, incumbent upon counsel who believe 
 that the facts are incorrectly stated, or the record not accurately 
 represented, to contradict or explain the statements of their 
 opponents. If they do not make the necessary corrections or 
 explanations the court will accept that made by their adversar- 
 ies as true and accurate. 1 
 
 § 444. Making the Points— Points rule cases on appeal as well 
 as in the trial court. 2 A " point " has been defined as : "Any 
 material question, particularly of law, arising in connection 
 with the determination of a cause." It is essential that all 
 points be made in the brief, and properly made ; if not so 
 made they are waived. Many cases affirm this doctrine, al- 
 though the phrase employed usually, not always, however, is, 
 all questions not made in the briefs are regarded as waived. 3 
 
 1 Rule XXVI provides that, " If a patrick, 97 Ind. 42; Wright v. Abbott, 
 statement of fact is made by counsel 85 Ind. 154; Stockton v. Lockwood, S2 
 and not questioned or explained by op- Ind. 15S; Fairbanks v. Meyers, 9S Ind. 
 posing counsel, it will be deemed by the 92; Ohio, etc., Co. v. Nickless, 73 Ind. 
 court to be accurate." This provision 3S2; Daniels v. McGinnis, 97 Ind. 549; 
 does no more than give expression to a Kennell v. Smith, 100 Ind. 494; Pitts- 
 general doctrine that has long pre- burgh, etc., Co. v. Williams, 74 Ind. 
 vailed - 462. Many other cases may be found 
 
 2 Memoir of Lord Abinger, 61-62. In in our reports. As illustrating the ap- 
 Gray v. Schenck,3 How. Pr. 231, it was plication of the rule, McClure v. State. 
 held that: "The heads of an argument 116 Ind. 169; Staser v. Hogan, 120 Ind. 
 together with the authorities cited, but 207; State v. McGinnis, 17 Ore. $32, 20 
 not the argument at length, are em- Pac. Rep. 632; Tucker v. Constable, 16 
 braced under the term points." Work Ore.239; Faris v. Lampson, 73 Cal. 190; 
 of the Advocate, 29, 49, 443. Brown v. State, S2 Ga. 224, 7 S. E. Rep! 
 
 3 Western Union Tel. Co. v. Kil- 915.
 
 
 APPELLATE PROCEDURE 
 
 Points, or propositions, distinctly stated and conspicu >asly dis- 
 played are quickl)- discerned, their force is apprehended with- 
 out effort and their impression is deeper and more lasting than 
 that of points huddled together in disorderly array. 1 
 
 § 445. Showing Rulings to be Wrong — It is not enough to assert 
 in general terms that a ruling of the trial court is wrong • a fair 
 effort must be made to prove that it is wrong or the point will 
 not be considered as having been made. Counsel can not make 
 a point in an appellate tribunal by a naked general assertion, 
 for such an assertion will not be heeded. Even if counsel do 
 not succeed in convincing the higher court that the trial court 
 erred they will, nevertheless, gain something which would oth- 
 erwise be lost, by an effort to do so, inasmuch as they will secure 
 notice of the point stated unless, indeed, it is wholly without 
 merit. But, in order to secure so much as notice of the point 
 stated they must support it by a fair effort, adducing arguments 
 and, if they can, citing authorities. 2 A bare designation of a 
 
 1 "Judges," says a lawyer of experi- 
 ence and ability, " who desire to refer 
 quickly to a certain part of an argu- 
 ment must be seriously hindered some- 
 times by this slovenly lack of proper 
 arrangement by which the pages are 
 closely huddled up and every observa- 
 tion is on a typographical level with 
 The points themselves should 
 he printed in a bold, heavy-faced letter, 
 and subordinate matter may be put in 
 capitals, italics or common type, ac- 
 cording to its importance. Every au- 
 thority should be in a separate line. 
 Generous spacing should he made, and 
 indentation can be put to good use. 
 One brief — and one only — that we have 
 come across had a line at the top of 
 each page, stating the contents of the 
 ; this is especially useful in refer- 
 ring to summaries of testimony. This 
 matter is just as important as emphasis 
 in oral argument." 43 Albany Law 
 Journal, 345. Bu1 some brief-makers 
 err in going to extremes, ami they 
 
 are thus criticised in a law period- 
 ical: "Some lawyers in having a brief 
 printed, use every variety of type that 
 is in the printing office, from small ital- 
 ics to gigantic capitals. We have even 
 seen a large hand pointing to particu- 
 larly impressive passages. All this is 
 an absurdity, hut it is only an exaggera- 
 tion of what is the true theory of a 
 brief, that is to call the attention of the 
 court in some way to the points which 
 are deemed especially important. One 
 of the best ways of doing this is to 
 print such passages in full-faced letters." 
 On making a Brief on Appeal, New 
 York Law Journal. 
 
 2 Liggett v. Firestone, 102 Ind. 514; 
 Northwestern, etc., Co. v. Hazelett, 105 
 Ind. 212; City of Anderson v. Neal,88 
 Ind. 317; Irwin v. Lowe, 89 Ind. 540. 
 Raster r. Raster, 93 Ind. 5S1; Collins 
 v. McDuffie, S9 Ind. 562; Millikan v. 
 Stati . 70 [nd.283; Richardson t\ State, 
 55 End. 381; Cutler v. State, 62 Ind. 39S; 
 Martin v. Smith, 57 Ind. 62; Bennett
 
 BRIEFS AND ARGUMENTS. 
 
 375 
 
 ruling as erroneous, without discussion, is not sufficient to en- 
 title counsel to successfully insist that he has made a point, but 
 a discussion, even though it be not sufficient to secure assent, 
 will save the counsel from the reproach of having waived a 
 point by a failure to do his duty. 1 Where a ruling is asserted 
 to be erroneous the party making the assertion must overcome 
 the presumption that it was correct, and this he can not do 
 otherwise than by specifying the particular error which inval- 
 idates the ruling. 2 This rule is required for the assistance and 
 enlightenment of the court. Common fairness to opposing 
 counsel likewise demands it, for thev have a right to know just 
 what particular point thev are to meet. It is also required by 
 the analogous cases which declare that objections wherever 
 presented must be specific. 
 
 § 446. Stating Propositions of Law — A proposition of law clearly 
 and strongly stated is often better than a prolix argument. Ex- 
 hibited in a condensed form and separated from a mass a prop- 
 osition is quickly seized, and it penetrates deeply, but concealed 
 in a confused mass it is likely to he overlooked or its force 
 dimly perceived. 3 "The propositions of law and fact on which 
 
 v. State, 22 Ind. 147; Lackey v. Hern- 
 by, 9 Ind. 536; Crisman v. Masters, 23 
 Ind. 319; Heady v. Wood, 6 Ind. S2. 
 The decision in Coon v. Welborn, 83 
 Ind. 230, is certainly out of line with 
 our own cases and with the cases in 
 other courts. They are too numerous 
 for citation. It is unsound on principle. 
 
 1 This is important as affecting peti- 
 tions for rehearing, as will be hereafter 
 indicated. 
 
 2 In Williams v. Nesbit, 65 Ind. 171, 
 counsel stated an objection in general 
 terms and referred to a case, but this 
 was held not sufficient to present the 
 question, the court saying, among other 
 things, that "This is the only reference 
 he makes to the judgment or execution 
 in his brief. In this reference to the 
 judgment no objection to its validity is 
 pointed out, and hence no question upon 
 its validity is raised here." See. also. 
 
 Harrison v. Hedges, 60 Ind. 266; Pow- 
 ers v. State, 87 Ind. 144; Wright v. 
 McLarinan, 92 Ind. 103; Cooper v. 
 Robertson, S7 Ind. 222; Collins v. Mc- 
 Duffie. 89 Ind. 562; Mills v. Winter, 94 
 Ind. 329. "It is the duty of counsel 
 to do more than make an assertion; 
 they should state reasons for their prop- 
 ositions and, if necessary, cite authori- 
 ties in their support." Liggett v. Fire- 
 stone, 102 Ind. 514. 
 
 3 " The aim should be to concentrate 
 and rise above the crude points that 
 were mooted in the first stages of the 
 controversy -md bring all the arts of 
 brevity, conciseness and severe logic, 
 with pith and point, to bear on the few 
 real questions which are worth the at- 
 tention of a court which exists only to 
 settle real doubts." Austin Abbott in 
 the New York Dailv Register.
 
 376 APPELLATE PROCEDURE. 
 
 counsel rely," said Justice Miller, of the Supreme Court of the 
 United States, "must be stated so as to show clearly their rela- 
 tion to each other, and be so plainly expressed as to present a 
 chart of the road to be traveled." But it is not always sufficient 
 to do no more than state bare propositions of law, indeed, it is 
 seldom sufficient to simply state naked legal propositions, for 
 propositions are by no means always self-evident. It is often nec- 
 try to support propositions by arguments, and sometimes to 
 fortify them by illustrations and by reference to authorities. 
 Clear, concise propositions serve as heads for arguments, but 
 they are not always in themselves arguments. 
 
 § 447. Citing Authorities — Decisions add weight to a written 
 argument, 1 not always simply because they constitute prece- 
 dents, but often because the court which makes the decision is 
 so highly regarded as to carry force in its utterances and often 
 because the reasoning of the opinion carries conviction. It is 
 not the number of cases so much as the character of cases, that 
 is important. The practice of collecting cases from digests 
 without close examination has more than once been censured. 2 
 Care in selecting and accuracy in citing authorities are cardinal 
 virtues. The correct practice is to give the names of the par- 
 ties and the volume and page of the reports where the case will 
 be found. 3 It is not good practice, as writers and judges have 
 
 1 " To cite cases," wrote Sir Edward torney to find out that a court does not 
 Coke, "standeth well with the gravitie want a digest piecemeal; but a mistake 
 of our lawyers." Work of the Advo- that is only too common is the citing 
 
 533. of a long list of authorities taken from 
 
 2 "The most common defect I have all jurisdictions, and some of which 
 
 ved in the argument of causes," have not, apparently, as far as human 
 says Judge Dillon, " next to faulty state- ingenuity can ascertain, the slightest 
 ments is the misuse of reported cases, relevancy to the particular case." On 
 No lawyer is justified in citing a case making a Brief on Appeal, New York 
 in his brief which he has not carefully Law Journal. Justice Miller, in his 
 read and studied." i Columbia Jurist, address before the Pennsylvania Law 
 125, 14 Am. Law. Rec. 53, 56. "In School, in Philadelphia, makes some ex- 
 citing cases," says an author already cellent suggestions as to the weight and 
 quoted, "you will not, of course, inflict value of judicial decisions. See The 
 on the court undigested and indigesti- Advocate, January 31, 1889. 
 
 tragraphs from the various digests, 3 Rule XXVI provides that counsel 
 
 half of which may turn out on close in- " shall give the titles of cases cited, to- 
 
 spection to have been founded on obiter gether with the volume and pages of 
 
 dicta. It does not take long for an at- the reports where they are found."
 
 BRIEFS AND ARGUMENTS. 
 
 377 
 
 often said, to refer to the page and volume of the reports with- 
 out giving the names of the parties. 1 There are manifest rea- 
 sons for this rule ; one is that the court often recalls without 
 examination what is decided in a case, and all that is required 
 is the naming of the case ; another reason is that accuracy is 
 increased and mistakes avoided by giving names, and still an- 
 other reason is that if names are given the court may, by ex- 
 amining the table of cases, find the case cited, although the 
 figures indicating the volume and page may be wrong. When 
 text books are cited the edition, if there be more than one edi- 
 tion, should always be given. The primary principle of selec- 
 tion is to secure cases decided by the court to which the argu- 
 ment is addressed, since only such cases can, with strict accu- 
 racy, be said to be authority. 2 But cases decided by other courts 
 
 1 Judge Buskirk's suggestions upon 
 this point are valuable. He says: '"As 
 a general rule, counsel should not cite 
 an authority without examination; but 
 where the attorney has not an oppor- 
 tunity of examining an authority which 
 is cited in a text-book or digest and 
 seems to be in point, he may cite it, 
 with a statement that he has not exam- 
 ined it. In citing an adjudged case, 
 the names of the parties, the volume 
 and page should be given, for, where 
 the names of the parties are given, the 
 case can be found, although there is a 
 mistake in the volume and page." Judge 
 Dillon says: "A citation of a case un- 
 der a given proposition ought, unless 
 distinctly otherwise stated, to be equiv- 
 alent to an implied professional certifi- 
 cate that, in the writer's judgment, the 
 case cited is an express authority in 
 support of such proposition." i Colum- 
 bia Jurist, 125, 14 Am. Law Rec. 53, 56. 
 The reports contain many cases in 
 which counsel have supplied their ad- 
 versaries with authorities. It has often 
 Happened that counsel have cited cases 
 which so far from being of service to 
 them, have given support to their op- 
 ponents. 
 
 2 Ram on Legal Judgments, Chapter 
 
 XII to XIX; Bishop's First Book of 
 the Law, Book IV, Chapter XXIII; 
 Heard's Criminal PL, Chapter I; The 
 W r ork of the Advocate, 52. " Devote 
 yourself above all to find authorities in 
 your own State," says Mr. Abbott, 
 "for these are the ones which are con- 
 trolling, and it must be a very new and 
 strange question upon which you can 
 not find some light. * * * * And even 
 in your own State always, before citing 
 an authority of importance, trace it 
 down to date, for it may have been so 
 'distinguished' as to have lost all vital- 
 ity of meaning." Justice Miller says: 
 " But a far more important element in 
 determining the weight to be given a 
 case is the fact that it has been judi- 
 cially decided after full argument on 
 both sides of the case; and if the report 
 shows that counsel directed attention 
 of the court to the main point to be de- 
 cided, and gave the aid which they 
 should always give, arising from their 
 own careful examination of the matter, 
 to enable the court to decide correctly, 
 it is then a case decided after full argu- 
 ment on both sides and necessarily car- 
 ries the weight which attaches to the 
 care with which the case has been ex- 
 amined."
 
 378 APPELLATE PROCEDURE. 
 
 are important and are always to be cited unless the question is 
 set at rest by the decisions of the court of the State in which the 
 case arises. It seldom happens that two cases are precisely 
 alike. In many cases a conclusion is reached by a process of 
 analogical reasoning", and in order to arrive at a conclusion re- 
 sembling cases are studied and the principles extracted from 
 them and applied to the particular case. 
 
 § 448. Waiver of Preliminary Motions by Filing Brief — An ap- 
 pellee who voluntarily tiles a brief upon the merits of the ap- 
 peal, that is, contests the points made by the appellant either 
 bv asserting that they are not properly presented by the record 
 or by insisting that the rulings challenged are right, in effect 
 enters an appearance and thus waives some of the objections 
 that might be made available upon a preliminary motion. 1 A 
 party who files a brief waives all questions as to notice which 
 affect him, and he waives questions as to the formality or regu- 
 larity of the assignment of errors. But, as elsewhere shown. - 
 he does not, by filing a brief, waive the right to challenge the 
 specifications of error, as, for instance, the right to insist that 
 a cause for a new trial not assigned in the motion below is not 
 available on appeal. 
 
 § 449. Time within which the Appellant's Brief must be Filed — 
 
 The appellant must file a full brief within sixty days after the 
 cause is submitted. 3 If the brief is not filed within that time it 
 is the duty of the clerk to enter an order dismissing the appeal, 
 unless the appellee requests that a decision be given in the 
 case. The rule requiring the appellant to file a brief within 
 
 1 Schmidt v. Wright, SS Ind. 56. In Watts v. State. 33 Ind. 237; Bosley v. 
 
 the case cited it was said: "By un- Farquar, 2 Blackf. 61; Glenn :\ State, 
 
 conditionally filing their brief on the 46 End. 368; Cox v. Pruitt, 25 Ind. 90; 
 
 27th day of January. 1882, they entered Rose V. Allison. 41 Ind. 270; Kara- 
 
 rieral appearance and waived all bieskey v. State. 26 Ind. 225; Frei 
 
 objections on account of notice." See Haworth, to, Ind. 404; Templetoi 
 
 v. Doerman, 112 Ind. 390. That Hunter, to Ind. 380; Rich v. Starbuck, 
 
 neral appearance waives prelimi- 45 Ind. 310; New Albany, etc., Co. v. 
 
 nary motions is well settled. Malum Combs, 13 Ind. (.90. 
 
 v. Malum, 19 Ind. y..\\ Miller v. Hays, s Pleadings of the Appellee, Chapter 
 
 20 Ind. 1.5 1 ; Feaster i>. Woodfill, 23 XIX. 
 
 Ind. 1 n :. Buzan, 24 Ind. 194; 3 Rule XX. •
 
 BRIEFS AND ARGUMENTS. 379 
 
 sixty days has been enforced in many cases 1 — very many more 
 than appears from the reports. Filing a brief after the expira- 
 tion of the time designated will not prevent a dismissal. 2 If 
 the last day falls on Sunday a filing on the succeeding Monday 
 will be in time. 3 
 
 § 450. Brief on Cross-Errors — Time of filing — The appellee is 
 allowed sixty days after submission in which to assign cross- 
 errors 4 and the rule requires him to file a brief on his assign- 
 ment within sixty days after the submission of the cause. 5 But 
 the appellee may upon due application, proper notice and suf- 
 ficient cause,' 1 obtain leave to assign cross-errors after the ex- 
 piration of sixty days, so that the rule limiting the time to file 
 a brief on cross-errors to sixty days can not apply to all cases. 
 It would be in accordance with the doctrine which prevails in 
 analogous cases to require an appellee to accompany an appli- 
 cation made after the expiration of the time designated with a 
 brief, and this has been required in some instances, but it can 
 hardly be said that there is any established rule upon the sub- 
 ject. Generally, however, a party who asks leave to do an 
 act after the time limited has expired in which he can do the 
 act as a matter of right must do all that he reasonably 
 can to prevent further delay, and we can see no reason why 
 this doctrine should not apply to an appellee who asks leave to 
 assign cross-errors after the expiration of sixty days from the 
 date of the submission. 
 
 § 451. Appellee's Brief on the Appellant's Assignment of Errors — 
 
 The rule provides that the appellee shall have ninety days af- 
 
 1 Schwann v. State, 8i Ind. 247; Mur- pellee's motion. He has a right to 
 
 rav v, Williamson, 79 Ind. 287; Schul- have the appeal dismissed." 
 
 tiesf. Keiser, 95 Ind. 159; Roy v. State, 3 Hogue v. McClintock, 76 Ind. 205. 
 
 58 Ind. 378; Indianapolis, etc., Co. v. * Rule IV. 
 
 Ferguson, 58 Ind. 445; Indianaapolis, 5 Rule XX. This rule after fixing 
 
 etc., Co. v. Kostanzer, 58 Ind. 446; the time within which the appellant 
 
 State v. Lieben, 57 Ind. 106. shall file a briefprovides that, " If cross- 
 
 * Stephens v. Stephens, 51 Ind. 542; errors are assigned, the party assigning 
 
 Sagasser v. Wynn, 88 Ind. 226. In them shall have the same length of time 
 
 Murray v. Williamson, 79 Ind. 2S7, the to file a brief thereon, and if a brief is 
 
 court said: "The fact that a brief has not filed within that time the cross-er- 
 
 since been filed is no answer to the ap- rors shall be struck out." 
 
 6 Rule IV.
 
 380 APPELLA rE PROCEDURE. 
 
 ter the submission in which to file a brief upon the questions 
 presented by the appellant. 1 If the brief is not filed within 
 that time the court may, if it chooses, regard a brief as waived. 
 But the rule is seldom strictly enforced against the appellee. 
 Briefs riled within a reasonable time before the case is taken 
 under consideration by the court are generally accepted and 
 :d upon by the court. The appellant is, however, entitled 
 to a reasonable time to examine and answer the appellee's brief. 2 
 
 § 452. Extension of the Time for filing Briefs — It is, of course, 
 
 within the power of the court to extend the time for filing briefs. 
 An extension of time is, however, not granted as a matter of 
 course, or as a matter of right. Counsel who desire an exten- 
 sion of time should make written application to the court, or to 
 one of the judges, prior to the expiration of the time limited. 
 While the matter is one of a discretionary character the usual 
 practice has been to require a sufficient excuse to be shown for 
 not filing the brief in due time, and if such an excuse is not 
 shown to deny the application. 
 
 § 453. Oral Arguments — Our great lawyers and judges have 
 sadly erred if it be not true that oral arguments are much more 
 effective than written ones, for they have declared, whenever 
 they have spoken upon the subject, that an oral address is much 
 more powerful than a written one. There is, indeed, no di- 
 versity of opinion upon this subject, and we venture to say that 
 a court that discourages oral arguments departs from the true 
 course. 3 But in commending oral arguments judges and writ- 
 ers have not been sparing in their censure of long and prolix- 
 addresses to the court.' It requires ability and labor to make 
 
 1 Rule XXII. truth there is no substitute for oral 
 
 2 Rule XXV. This rule requires argument." tg Am. Law Review, 19. 
 counsel to interchange briefs. It also See, also, authorities collected in The 
 requires copies of additional or supple- Work of the Advocate, 506, 514. 
 nuntal briefs to be furnished opposite * Profession D'Avocat, Vol. I, p. 510; 
 counsel. j I Albany Law Journal, 40; 22 Albany 
 
 3 Judge Dillon says: "As a means of Law Journal, 439; Judge Samuel F. 
 enabling the court to understand the Miller's Address to the Iowa Bar As- 
 
 case brought thither for its judg- sociation; Henry's Reminiscences of 
 ment, as a means of eliciting the very Daniel Webster.
 
 BRIEFS AND ARGUMENTS. 381 
 
 a short, sharp and incisive forensic argument, but the value of 
 brevity far outweighs the expense of the time, talent and labor 
 expended in condensing and crystallizing an argument. It is 
 a mistake, often made, for too many counsel to argue one side 
 of a cause ; ' division in such cases, as was long since suggested 
 by the Supreme Court of the United States (and against which 
 one of its rules is directed), is very likely to impair and weaken 
 the effect of oral arguments addressed to the court. It is not 
 to be supposed that a written argument is not needed where the 
 case is orally argued ; 2 on the contrary, a brief is always of 
 importance ; so plainly is this true, that the assertion carries its 
 own support. 
 
 § 454. Application for Oral Argument — Counsel who desire an 
 oral argument are entitled to it upon filing a written application 
 requesting that the cause be set down for argument, and by 
 complying with the rules upon the subject. 3 Notice of the 
 time fixed for the argument must be given and a statement of 
 the propositions which counsel propose to argue mailed or de- 
 livered to counsel representing adverse parties. 
 
 § 455. Limitation of Oral Arguments — The limitation is two 
 hours, the time to be equally divided between opposing coun- 
 sel. If longer time is required it must be asked and obtained 
 in advance of the argument. 4 It is necessary that reasonable 
 cause be shown in order to secure an extension of time bevond 
 that fixed by the rule of court, for an extension is not granted 
 
 1 "The system by which the one who that: "The failure to notice or discuss 
 argues the cause and the one who pre- in oral argument points properly made 
 pares the brief are different persons, in the briefs shall not be deemed a 
 tends very much to multiply unneces- waiver of such points, but they will be 
 sarv points, and swell the bulk of the fully considered in determining the 
 reading matter which is put between cause." 
 
 the judge and the decision of the case." 3 Rule XXVII. 
 
 32 Albany Law Journal, 41. 4 Rule XXVIII. The rules do not 
 
 2 As we have seen, points not properly provide that the time shall be two hours 
 made in the brief are waived, but if in every case, but they fix that as the 
 there duly made, the failure to insist maximum limit, leaving it to the court, 
 upon them in the oral argument is not whenever it deems proper, to restrict 
 a waiver. Rule XXVI explicitly re- the time. Rule XVII 
 
 quires briefs. Rule XXIX provides
 
 382 APPELLATE PROCEDURE. 
 
 as a matter of course, nor can counsel agree upon the time so 
 as to break the force of the rule. The rule prevails in all cases 
 where the court is not put in possession of facts clearly showing 
 that the time fixed by the rule is not adequate. Experience 
 has demonstrated the fact that the time fixed by the rule is 
 amply sufficient in the great majority of cases. It is not to be 
 forgotten that the oral argument is, in all cases where counsel 
 have fully discharged their duty, supplemented and aided by a 
 written brief. This brief is before the court and to it reference 
 is made in consultation and in submitting the opinion before it 
 is accepted as that of the court. As the brief is at hand there 
 is little necesssity for prolix discussion and none for the repeti- 
 tion and reiteration of propositions, nor is there any reason for 
 reading at length from text-books or decisions, since the brief 
 should supply needed quotations and make proper citations. 1 
 
 § 456. Statement of Propositions for Argument — The proposi- 
 tions which counsel propose to argue are required to be stated 
 in writing ; each proposition is to be appropriately numbered, 
 and under each proposition the authorities relied upon as sup- 
 porting it must be arrayed. 2 It is only the points or propositions 
 that can properly be stated ; an extended discussion is forbid- 
 den. 3 The points clearly stated, logically arranged and exhib- 
 ited in an orderly form greatly aid the court. Counsel who 
 
 1 "In citing cases which you think are is only apparent." The Advocate, 
 
 controlling of the question at issue, or January 3, 1889. But while there is 
 
 which, at least, fairly sustain your view, much of truth in what is said by the 
 
 give the principle fully and clearly, writer quoted, still, it is to be taken 
 
 quoting in extenso, when necessary, the with some qualification. It is not al- 
 
 parts of the opinion which are exactly ways necessary toquote from decisions 
 
 in point, and adding to those citations or text -books, since the simple reference 
 
 such other cases as sustain the same to authority on a familiar question is 
 
 propositions. If the reasoning of your often sufficient. Where, however, the 
 
 authority is somewhat mixed, or is com- question is intricate, or difficult, or 
 
 plicated with other questions, carefully novel, quotations may, with profit and 
 
 point out exactly how it is applicable propriety, be freely made. 
 
 to sustain your position, and if there 2 Rule XXIX. "Counsel shall not 
 
 are any parts of the cases cited appar- read from written or printed briefs in 
 
 ently in conflict with your own case, discussing the propositions stated." 
 
 carefully distinguish it or make clear to s Ibid. 
 ourt, it you can, that the conflict
 
 BRIEFS AND ARGUMENTS. 383 
 
 can not prepare such a statement, it is fair to infer, are not 
 sufficiently acquainted with the case to assume to instruct the 
 court or to impart information. Either this must be the infer- 
 ence or else something even less creditable to counsel must be 
 inferred. All the points that counsel desire to orally argue 
 should be embodied in the written statement, since the argu- 
 ment will be strictly confined to the points stated. The writ- 
 ten statement " must," as the rule provides, "be mailed or de- 
 livered to opposing counsel at least ten days before the time 
 appointed for the argument, and a copy shall be filed with the 
 clerk before the argument for the use of the court." 1 The 
 statement of the points is an important instrument, and, if well 
 prepared, is of great assistance to the court, in the examination 
 of the case. It does not supply the place of a brief, but it is a 
 valuable auxiliary. The brief is always essential and an oral 
 argument does not dispense with the necessity of filing it. 
 Points made in the brief are not waived by a failure to discuss 
 them in the oral argument. Many of the courts deal very se- 
 verely with counsel who fail to present briefs and points as the 
 rules require. Some of the courts dismiss the appeals where 
 the appellant is in default, and where the appellee is the delin- 
 quent reverse the judgment. 2 There is good reason for strict- 
 ness. It is due to the court that the case should be presented 
 as the rules of the court require, and it is due to clients in causes 
 important enough to demand the time and study of the courts 
 that there should be a full and careful argument. 
 
 § 457. Interchange of Points for Argument — The rule expressly 
 requires that counsel shall interchange the written propositions 
 required for oral argument. If counsel, duly notified by those 
 who apply for oral argument, desire to be heard, they must 
 make a written statement of the propositions which they desire 
 to discuss and mail or deliver it to opposing counsel. 3 Under 
 
 1 Rule XXIX. 2i Pac. Rep. 971; Owen v. Going, 13 
 
 2 Purdy v. Rahl (Cal.), 21 Pac. Rep. Col. 290, 22 Pac. Rep. 768; People v. 
 971; Parson v. Haskell, 30 111. App. Bachman (Cal.), 23 Pac. Rep. 1090; 
 444; Green v. Smith, 21 III. App. 198. Lancaster v. Waukegan, etc., Co., 132 
 See, generally, Steffen t'Jefferis(Mont.), 111. 492, 24 N. E. Rep. 629. 
 
 22 Pac. Rep. 152; Hanson v.Voll (Cal.), 3 Rule XXIX.
 
 384 APPELLATE PROCEDURE. 
 
 the propositions must be cited the authorities upon which coun- 
 sel rely. The practice has been in cases where counsel on one 
 side have failed to make and file the written propositions re- 
 quired by the rules, to hear the counsel not in default and to 
 refuse to hear the delinquent counsel. This is, certainh', as 
 liberal a practice as can be pursued, and as compared with the 
 practice of many of the courts is unusally liberal.
 
 CHAPTER XXII. 
 
 THE ORDER OF DOCKETING AND HEARING APPEALS. 
 
 4 458. Docketing appeals. § 464. Cases can not be advanced by 
 
 459. Exceptions to the general rule. agreement. 
 
 460. Filing of the transcript is gen- 465. The application for advance- 
 
 erally essential to jurisdic- ment. 
 
 tion. 466. What must precede application. 
 
 461. Order of hearing. 467. Notice of the application. 
 
 462. Authority of the court to change 468. Hearing the motion to advance. 
 
 the order of hearing. 469. Questions for decision on a mo- 
 
 463. Advancement of cases. tion to advance. 
 
 § 458. Docketing Appeals — Causes are docketed in the order 
 in which they are tiled in the office of the clerk of the Supreme 
 Court. 1 As the assignment of errors is the appellant's com- 
 plaint and is essential to complete jurisdiction it should accom- 
 pany the transcript. Another reason why the assignment of 
 errors should accompany the transcript is this : Process issues 
 according to the assignment of errors. 2 The general rule is 
 that which we have stated, and to this general rule the practice 
 has long conformed. 
 
 § 459. Exceptions to the General Rule — There are exceptions to 
 the general rule that the assignment of errors must accompany 
 the transcript, although they are rare. It may happen, to give 
 an illustrative instance, that it is necessary to file the transcript 
 and secure an order to perfect the record before an assignment 
 of errors can be intelligently or properly prepared. In such a 
 case the transcript should be filed, the proper motion or petition 
 be presented, and due notice issued. When this is done the 
 appellate tribunal has such jurisdiction, although the jurisdic- 
 tion may not be complete, as authorizes it to proceed in the 
 case. But, as a general rule, the transcript must be filed, to- 
 
 1 R. S. 1881, 653. Errors," ante Chapter XVI. See, also, 
 
 2 Rule VI. See "The Assignment of " Process," ante Chapter XIII. 
 
 25 (385)
 
 
 APPELLATE PROCEDURE. 
 
 gether with the proper motion or petition. This is so, because, 
 as a general rule, the appellate tribunal can not exercise orig- 
 inal jurisdiction, and until the transcript is filed there is nothing 
 to call into exercise appellate authority. Until then there is no 
 case to review. There are, doubtless, other cases than that 
 adduced as an illustration where action in the appellate tribunal 
 may be taken without first filing the assignment of errors, but 
 the illustration we have given is sufficient for our present pur- 
 pose. There are cases where the appellate tribunal exercises 
 original jurisdiction, as, for instance, in determining its own 
 duties and protecting its own records, but ordinarily it exercises 
 only appellate authority. Connected with this jurisdiction are 
 incidental powers, but they are seldom anything more than 
 auxiliary ones exercised in aid of its principal jurisdiction. 
 
 § 460. Filing of the Transcript is generally essential to Jurisdic- 
 tion — It is quite clear that ordinarily a cause can not be dock- 
 eted on appeal until the transcript is filed. The transcript is, 
 in the very great majority of cases, the foundation of the au- 
 thority to take cognizance of the appeal. If, by wrong, it is 
 withheld, there is a remedy — but we need do no more at pres- 
 ent than speak of the general rule. As the transcript is, in 
 general, the foundation of the proceedings, it must be filed, 
 even though it be imperfect. Filing the transcript is nearly 
 always the initial step. If imperfect it can be corrected after 
 filing and docketing, but until it is before the court there is or- 
 dinarily no appeal, and there is no ground justifying or requir- 
 ing the exercise of either the principal or auxiliary appellate 
 jurisdiction. The party who first files his transcript and then 
 asks for auxiliary aid will seldom go wrong. It may be safely 
 assumed that until the transcript is filed there is no appeal to 
 docket, and if no appeal to docket, none to try. 
 
 § 461. Order of Hearing — Causes are heard in the order in 
 which they are docketed (if correctly entered), unless the court 
 otherwise directs. 1 As the law was prior to 1885, appeals stood 
 for trial, in the order in which they were docketed, at the first 
 
 1 R. S. 1881, § 653.
 
 DOCKETING AND HEARING APPEALS. 387 
 
 term after filing the transcript in cases where the appeal was 
 duly perfected as a term appeal, and in cases of appeals upon 
 notice, at the first term after personal notice had been served 
 ten days, or notice by publication had been given for thirty 
 days. 1 As there were but two terms in each year, May and 
 November, 2 dela}^ was unavoidable. The act of 1885 wrought 
 an important change, and under that act appeals are submitted 
 thirty days after due notice irrespective of the beginning of the 
 terms of court. 3 It is probably true that circumstances may 
 change the order of hearing without special direction of the 
 court, but the general rule is that prescribed by statute. Either 
 this must be true or it must be true that the statute is nugatory. 
 This can not be justly affirmed. It may be justly affirmed, 
 however, that a general rule, whether prescribed by statute or 
 not, has its exceptions, and that general rules often yield to 
 particular circumstances. It is, at least, safe to affirm that the 
 statute must be followed as far as practically possible. 4 The 
 statute does little more than declare what in fairness and com- 
 mon justice is the true rule, for, all other things being equal, 
 the first in time are first entitled to an adjudication. It is to be 
 remembered that there is a marked difference between hearing 
 and deciding. A case may be taken up for consideration and 
 a decision delayed (as in fact often occurs), because of a differ- 
 ence of opinion developed on consultation. 
 
 § 462. Authority of the Court to Change the order of Hearing — 
 
 There can be no doubt that the court has authority, by virtue 
 of the statutory provision, to change the order of hearing ap- 
 peals. Probably it would have this authority without the stat- 
 utory grant contained in the words, " unless the court for good 
 cause shown shall otherwise direct." 5 It has, at all events, the 
 authority, whether it be statutory or inherent. The authority 
 is plenary. The entire subject is committed to the court, for it 
 
 1 R. S. 1881, § 652. tory provision in strong terms. Bus- 
 
 1 R. S. 1SS1, § 1301. kirk's Practice, 331. But we are unable 
 
 3 Elliott's Supp., § 2S. See ante, "Sub- to agree with some of his statements, 
 
 mission," Chapter XX. 5 R. S. 1881, § 653. 
 * Judge Buskirk condemns the statu-
 
 388 APPELLA I 1 PROCEDURE. 
 
 is for the court to determine whether or not "good cause is 
 shown." 
 
 § 463. Advancement of Cases— It is quite clear that the court 
 mav rightfully advance the hearing of a case when "good 
 cause is shown," but it is not so clear what constitutes good 
 cause. Every case advanced displaces others. The advance- 
 ment of an appeal is a preference of one case above others. 
 Naturally and justly litigants have a right to a disposal of their 
 cases in the order of their filing. It can seldom be justly said 
 that one case involving strictly private interests should be ad- 
 vanced over others involving like interests. There are, how- 
 ever, a few cases of this character that may justly be advanced, 
 but they are exceedingly rare. Where a speedy decision will 
 settle many cases and prevent a multiplicity of actions a prompt 
 decision is often desirable and benefits both the public and in- 
 dividuals. Possibly there may be cases involving elements of 
 hardship and possessing peculiar characteristics that should be 
 advanced ; such, for instance, as a case where the year for the 
 redemption of land sold on execution is nearly at an end, or, a 
 case which prevents the final settlement of a trust involving 
 large amounts or important interests, or, a case which stands 
 in the way of closing a decedent's estate. Generally, however, 
 it is only cases involving important public interests that are 
 entitled to advancement. The Supreme Court of the United 
 States enforces this doctrine with strictness. 1 
 
 § 464. Cases can not be advanced by Agreement — Counsel rep- 
 resenting adverse parties can not by agreement procure an ad- 
 vancement. It is not enough that parties or counsel agree to 
 advance ; it must appear, even where there is an agreement, 
 that there is sufficient cause for an advancement. An agree- 
 
 1 Barry v. Mercein, 4 How. (U. S.), holds that the fact that the validity of 
 
 United Statesiy. Bassett, 21 How. an ordinance of a municipal corpora- 
 
 (U. S.), 412; Sage V. Iowa, etc., Co., tion is involved will not warrant an 
 
 93 U. S. 412; linger'. Richmond, etc., advancement. Davenport City v. Dows, 
 
 Co., 93 U. S. 1; Central R. R. Co. v. 15 Wall. 390. See, generally, Miller v. 
 
 Bourbon Counh , n6 U. S. 538; Ward State, 12 Wall. 159. 
 v Maryland, 12 Wall. 163. That court
 
 DOCKETING AND HEARING APPEALS. 339 
 
 ment has some weight, but it is by no means sufficient in itself 
 to secure an order advancing a case for hearing. 
 
 § 465. The Application for Advancement — A written motion, or 
 petition, is required. It must be verified or supported by affi- 
 davit. The grounds upon which an advancement is asked 
 should be specifically and fully stated. 1 The court will not ex- 
 amine the transcript to determine whether the case is one en- 
 titled to be advanced for hearing. The petition or motion must 
 show, and clearly show, cause for the advancement ; failing in 
 this, it will not accomplish its object. A party who asks that 
 his case be advanced asks an extraordinary order and hence 
 it is incumbent upon him to present a strong petition. The 
 nature of the case should be stated in general terms and the 
 reasons for an advancement should be stated with certainty and 
 particularity. 
 
 § 466. What mnst Precede the Application — The case must be 
 submitted before an advancement is asked. The party making 
 the application should precede it with his brief. In short, the 
 party moving should, so far as it is in his power, do all that is 
 required to put the case in form and situation for a hearing. 
 The underlying theory is that the appeal is ripe for judgment. 
 
 § 467. Notice of the Application — Written notice must be 
 served upon the adverse party or his counsel informing him of 
 the general nature of the motion, or petition, and of the time 
 fixed for its hearing. Notice may, however, be waived by ex- 
 press agreement, by joining in the motion, or by conduct from 
 which a waiver may be implied. While parties can not by an 
 agreement secure an order advancing a cause, they may by 
 agreement waive notice. 
 
 § 468. Hearing the Motion to Advance — A motion or petition to 
 advance is heard and decided upon the pleadings and affidavits 
 filed by the respective parties. Oral evidence is not heard. 
 Counter-affidavits may be filed. Briefs may be properly filed, 
 but oral arguments are not heard. 
 
 1 Call v. Palmer, 106 U.S. 39; Taylor v. Wing, S3 N. Y. 527.
 
 390 APPELLATE PROCED1 RE. 
 
 § 469. Questions for Decision on the Motion to Advance — The 
 
 questions presented by a motion to advance are such, and such 
 only, as relate to the right of the applicant to a preference. 
 No other questions are involved. It is, therefore, correctly 
 held that the statement that there is no merit in the case is not 
 sufficient to authorize an order advancing it for hearing. 1 
 Whether or not there is merit in a case is a question to be de- 
 cided upon the regular hearing. If courts should undertake 
 to examine the record upon motions to advance, or should in- 
 quire into the merits of the case upon such applications, they 
 would not only go counter to settled principles, but they would 
 find little time for considering cases regularly submitted for 
 decision on their merits. 
 
 1 Amory v. Amory, 91 U. S. 356.
 
 CHAPTER XXIII. 
 
 QUESTIONS THAT MAY BE FIRST MADE ON APPEAL. 
 
 § 470 
 
 Objections not presented to the 
 trial court not considered on 
 appeal — General rule. 
 
 Objections to the complaint. 
 
 Assailing a complaint in the 
 assignment of errors. 
 473. What defects are fatal upon an 
 original attack on appeal. 
 
 One good paragraph will save 
 the complaint. 
 
 Judgment by default — Requis- 
 ites of the complaint. 
 
 Answer can not be attacked for 
 the first time on appeal. 
 
 Cross - complaint or counter- 
 claim. 
 
 471. 
 472. 
 
 474- 
 
 475 
 
 476. 
 
 477 
 
 478. 
 
 479- 
 480. 
 
 482. 
 
 483- 
 484. 
 
 4§5- 
 
 4S7. 
 488. 
 
 Requisites of a counter-claim. 
 
 Reply. 
 
 The doctrine applicable to an- 
 swers and replies. 
 
 The reason of the rule. 
 
 Rendering judgment on the 
 pleadings. 
 
 Set-off. 
 
 The rule where a bad answer is 
 proved. 
 
 Effect of the rule respecting the 
 proving of a bad answer. 
 
 Effect of proving a bad answer. 
 
 Anomalous cases. 
 
 Criminal cases. 
 
 § 470. Objections not presented to the Trial Court not considered 
 on Appeal — General Rale — The general rule is that objections not 
 presented to the trial court will receive no attention on appeal. 1 
 
 1 Missouri, etc., Co. v. Vandeventer, 
 26 Neb. 222; State v. Nelson, 101 Mo. 
 477; Fowler v . Bowery Savings Bank, 
 113 N. Y. 450; O'Neil v. New York, 
 etc., Co., 115 N. Y. 579; Winters v. 
 Kansas City, etc., Co., 99 Mo. 509; Mc- 
 Connell v. Osage, 80 Iowa, 293; Wil- 
 son v. McNamee, 102 U. S. 572; Belk 
 v. Meagher, 104 U. S. 279; Wright v. 
 Mulvaney, 7S Wis. 89, S. C. 9 Law. R. 
 Anno. S07; Adams County v. Hunter, 
 78 Iowa, 32S; Clark v. Fredericks, 105 
 U. S. 4; Louisville, etc., Co. v. Fox, 
 101 Ind. 416; Falley v. Gribbling, 12S 
 Ind. no; Keiser v. Lines, 79 Ind. 445; 
 Floore v. Steigelmayer, 76 Ind. 479; 
 City of Huntington v. Breen, 77 Ind. 
 
 29; Mobley v. State, 83 Ind. 92; New 
 Albany, etc., Co. v. Day, 117 Ind. 
 337> Queen Ins. Co. v. The Studebaker, 
 etc., Co., 117 Ind. 416; McNutt v. Mc- 
 Nutt, 116 Ind. 545; Louisville, etc., Co. 
 v. Hart, 119 Ind. 273; Alexander v. 
 Humber, S6 Ky. 565; Brown v. Brown, 
 29 W. Va. 777, S. C. 2 S. E. Rep. S08; 
 Hauxhurst v. Ritch, 119 N. Y. 621, 23 
 N. E. Rep. 176; Hardin v. Clark, 32 So. 
 Car. 480, 11 S. E. Rep. 304; Goodnow 
 v. Plumb, 67 Iowa, 661; Patterson v. 
 Stiles, 6 Iowa, 54. The record must 
 affirmatively show that the question was 
 appropriately presented to the trial 
 court. Coleman v. Dobbins, 8 Ind. 156. 
 
 (391)
 
 392 APPELLATE PROCEDURE. 
 
 To this rule there is one very important exception, which is as 
 far reaching as the rule itself, and that is this : Objections to 
 the jurisdiction of the trial court over the subject may be suc- 
 cessfully urged at any time. 1 If the trial court did not have 
 jurisdiction of the subject the appellate court acquires none. 2 
 
 ^ 471. Objections to the Complaint — The general rule that ob- 
 jections not presented to the trial court are unavailing on ap- 
 peal applies, with one important exception, to pleadings. It 
 would seem, on principle and independent of statute, that 
 where a complaint or declaration wholly fails to state a cause 
 of action the judgment should not be allowed to stand, for it 
 is difficult, if not impossible, to conceive how a judgment can 
 stand where there is no actionable wrong, and, surely, there 
 can be none where there is no cause of action. An unsup- 
 ported judgment is as a foundationless structure. 3 The reason 
 of the rule does not, however, exist where there is simply a 
 formal or unsubstantial defect in the complaint or declaration, 
 or a defect that can be supplied by amendment, since such de- 
 fects may well be deemed to be cured by the verdict. 
 
 1 Doctor v. Hartman, 74 Ind. 221; 2 Withers v. Patterson, 27 Texas, 491, 
 
 Smith v. Myers, 109 Ind. 1,9; Robert- 495; Robertsons. Smith, 109 Ind. 79, 
 
 son v. Smith, 109 Ind. 79; Damp v. Si. 
 
 Dane, 29 Wis. 419, 431; Chapman v. 3 Slacum v. Pomeroy, 6 Cranch, 221 ; 
 
 Harney, 129 U. S. Soo; Morris v. Gil- Bank of United States v. Smith, 11 
 
 mer, 129 U.S. 315; Fowler v. Eddy, Wheat. 171. In the caseof Beaird T'.The 
 
 no Pa. St. 117, S.C.i Atl. Rep. 7S9; United States. 5 Ind. 220, it was held that 
 
 Ware v . Henderson, 25 So. Car. 3S5; in a case which originated before a justice 
 
 People v. Walter, 6S X. Y. 403, 411; of the peace the judgment will be re- 
 
 Weeden v. Richmond, 9 R. I. 128; versed unless the transcript discloses a 
 
 Willins V. Wheeler, 17 How. Pr. 93; cause of action. To the same effect are 
 
 Tiffany v. Gilbert, 4 Barb. 320; Fitch the cases of Bell v. Trotter, 4 Blackf. 
 
 -. Develen, 15 Barb. 47; Hardin v. 12; Denby v. Hart, 4 Blackf. 13. But 
 
 Trimmer, 30 So. Car. 391, 9 S. E. Rep. if there is a complaint sufficient to bar 
 
 342; Randleman, etc., Co. v. Simmons, another action the judgment will stand 
 
 97 N. C. S9, S. C. 1 S. E. Rep. 923; where no attack is made upon the com- 
 
 Murrv v. Burris, 6 Dak. 170, 42 N. W. plaint in the trial court. Clark v. 
 
 Rep. 25; Hall v. Wadsworth, 30 W.Va. Benefiel, 18 Ind. 405. In actions com- 
 
 55, S. C. 3 S. E. Rep. 29; Keokuk, etc., menced before a justice of the peace 
 
 R. Co. r. Donnell, 77 Iowa, 221,42 N. this would, indeed, be the rule even 
 
 W. Rep. 17''. where there was a direct attack
 
 QUESTIONS FIRST MADE ON APPEAL. 
 
 393 
 
 § 472. Assailing a Complaint in the Assignment of Errors — In 
 
 this State the question as to the right to challenge a complaint 
 on appeal for the first time is settled by statute, 1 and settled, as 
 we believe, in accordance with principle. Doubtless the stat- 
 ute is open to abuse and that result can only be prevented by 
 construing it so as to prevent advantage being taken of defects 
 that do not go to the substance. The* statute has been before 
 the court in many cases and has been enforced wherever there 
 was no cause of action. 2 It has, indeed, been held, that a com- 
 plaint may be assailed by the assignment of errors although a 
 demurrer to it may have been overruled but no exception taken 
 by the trial court, 3 and this holding seems defensible upon the 
 ground that where there is no cause of action there can be no 
 valid judgment. 
 
 § 473. What defects are fatal upon an original attack on Appeal — 
 
 A complaint may be bad as against a demurrer and yet good 
 
 » R. S. iSSi, § 343. 
 
 ' Bolster v. Catterlin, io Ind. 117; 
 Blackledge v. Benedick, 12 Ind. 3S9; 
 McClure v, McClure, 19 Ind. 185; Kip- 
 hart v. Brennemen, 25 Ind. 152; To- 
 ledo, etc., Co. T'. Tilton, 27 Ind. 71; 
 Tomlinson v. Hamilton, 27 Ind. 139; 
 
 Ludlow, 109 Ind. 199; Louisville, etc., 
 Co. v. Peck, 99 Ind. 68. 
 
 3 Nugent v. Laduke, 87 Ind. 482. If, 
 however, an exception has been taken 
 the appropriate mode is to assign the 
 ruling upon the demurrer, since a much 
 more liberal rule prevails as to the ob- 
 
 Hannum v. State, 3S Ind. 32; Livesey jecting party where the pleading is dulv 
 v. Livesey, 30 Ind. 398; Newhouse v. challenged by demurrer in the trial 
 
 Miller, 35 Ind. 463; Heitman v. 
 Schnek, 40 Ind. 93; Davis v. Perry, 41 
 Ind. 305; Mercer v. Patterson, 41 Ind. 
 440; Ridgeway v. Deariner, 42 Ind. 157; 
 Packard v. Mendenhall, 42 Ind. 59S; 
 McGoldrick v. Slevin, 43 Ind. 522; 
 Sparks v. Heritage, 45 Ind. 66; Ford v. 
 Booker, 53 Ind. 395; Town of Brazil v. 
 Kress, 55 Ind. 14. Where a complaint 
 is challenged on appeal for the first 
 time the assignment must be directed 
 to the entire pleading. An assignment 
 that some only of the paragraphs are 
 bad will be unavailing. Louisville, etc., 
 Co. v. Corps, 124 Ind. 427, 8 Lawyers' 
 Rep. Anno. 636; Board v. Tichenor 
 (Ind.), 29 N. E. Rep. 32; Ludlow v. 
 
 court. Burkett v. Holman, 104 Ind. 6. 
 In Lassiter v. Jackman, 8S Ind. 118, the 
 court said: " If the appellants had de- 
 murred to the complaint of facts we 
 may well suppose that it would have 
 been held insufficient; but many objec- 
 tions may be cured by a verdict, and 
 parties may waive their objections or 
 lose all benefit therefrom by not mak- 
 ing them in the proper mode or at the 
 proper time." The court cited, among 
 others, the eases of Purdue v. Steven- 
 son, 54 Ind. 161; Wilson v. Kelly, 58 
 Ind. 586; Galvin v. Woollen, 66 Ind. 
 464; Lewis v. Bortsfield, 75 Ind. 390; 
 Parker v. Clayton. 72 Ind. 307; Beal v. 
 State. 77 Ind. 231; Roberts v. Porter, 
 ;S Ind. 1^0.
 
 394 
 
 APPELLATE PROCEDURE. 
 
 against an assault made upon it for the first time in the Supreme 
 Court. 1 It is, therefore, not sufficient to entitle a party to a re- 
 versal to prove that a complaint would have fallen before a de- 
 murrer had it been attacked in the court below. As has been 
 suggested, defects which a verdict will cure are not available 
 where no demurrer is filed, 2 and hence it is important to demur 
 wherever it is sought to take advantage of a defect that does 
 not affect in a very material degree the cause of action. The 
 rule that many defects are cured by a verdict prevails as against 
 a motion in arrest of judgment made in the trial court, 3 and 
 there is reason for liberally extending that rule to cases where 
 the first assault is made on the complaint in the assignment of 
 
 1 Hostetler v. State, 62 Ind. 1S3. In 3 Eshelman v. Snyder, 82 Ind. 498; 
 
 Louisville, etc., Co. v. Hixon, 101 Ind. 
 337; Haywood v, Iledrick, 94 Ind. 340; 
 Hedrick v. 1). M. Osborne & Co., 99 Ind. 
 143; Puett v. Beard, 86 Ind. 104; Clegg 
 v. Waterbury, S8 Ind. 21; Burkett v. 
 Holman, 104 Ind. 6; Trammel v. Chip- 
 man, 74 Ind. 474; Pittsburgh, etc., Co. 
 v. Thornburgh, 98 Ind. 201; Felger v. 
 Etzell, 75 Ind. 417; Beal v. State, 77 
 Ind. 231; Smock v. Harrison, 74 Ind. 
 
 the case of McGregor v. Hubbs, 1 2 q 
 
 Ind. 487,488,11 was said: "It is set- 
 tled law in this State that an assign- 
 ment of error that the complaint does 
 not state facts sufficient to constitute a 
 cause of action, is not available for the 
 reversal of the judgment, unless some 
 fact esssential to the existence of a 
 cause of action has been wholly omitted 
 from the complaint." The same doc- 
 trine is stated in somewhat stronger 348; Kious v. Day, 94 Ind. 500. While 
 
 terms in other cases. Lavertv v. State, 
 109 Ind. 217; Smith v. Smith, 106 Ind. 
 43; Taylor v. Johnson, 113 Ind. 164; 
 Burkhart v. Gladish, 123 Ind. 337; 
 Hornaday v. Shields, 119 Ind. 201; 
 Orton v. Tilden, no Ind. 131; Kinney 
 v. Dodge, 101 Ind. 573; Baltimore, etc., 
 Co. v. Kreiger, 90 Ind. 380; Smith v. 
 Freeman, 71 Ind. 85; Cox v. Albert, 7S 
 Iiul. 241. 
 
 1 Old v. Mohler, 122 Ind. 594; Las- 
 siter v. Jackman, SS Ind. 11S; Owen 
 School Tp. v. Hay, 107 Ind. 351; Eber- 
 harl v. Reister, 96 Ind.47S; Colchen v. 
 Ninde, 120 Ind. 18S; Westfall v. Stark, 
 27 Ind. 377; Indianapolis, etc., Co. v. 
 Petty, 30 Ind. 261; Tomlinson -\ Ham- 
 ilton. 27 Ind. 139; Iloworth 7'. Scarce, 
 29 Ind. 278; Gander v. State, 50 Ind. 
 539; Galvin v. Woollen, 66 Ind. (.64; 
 Smith v. Freeman, 71 Ind. 85. 
 
 the rule that defects are cured by a ver- 
 dict is very liberally applied, still, it can 
 not be invoked to sustain a complaint 
 which omits to state a fact indispensa- 
 bly essential to the cause of action. 
 Cox v. Hunter, 79 Ind. 590; Mansur 
 v. Streight, 103 Ind. 35S; Home Ins. 
 Co. v. Duke, 75 Ind. 535; Peters v. 
 Banta, 120 Ind. 416. Whatever fair in- 
 tendment will supply will be deemed to 
 exist. Sharpe v. Clifford, 44 Ind. 346; 
 Howorth v. Scarce, 29 Ind. 27S; Barnes 
 v. Bell, 39 Ind. 32S; Galvin r 1 . Woollen, 
 66 Ind. 464; Scott v. Zartman, 61 Ind. 
 328; Louisville, etc.. Co. V. Spain, 61 
 Ind. 460; Bales v. Scott, 26 Ind. 202; 
 Gander v. State, 50 Ind. 539; Griesel v. 
 Schmal, 55 Ind. 475; Parker v. Clay- 
 ton, 72 Ind. 307.
 
 QJJESTIONS FIRST MADE ON APPEAL. 
 
 395 
 
 errors. It is a necessary sequence of the propositions stated 
 that a complaint will prevail against an original attack on ap- 
 peal, however defectively it may allege facts, if its allegations 
 are such as to authorize the court to remedy defects, or supply 
 omissions, by liberal and reasonable intendment. 1 There is 
 in such cases reason for liberality, none for strictness. A strict, 
 or technical, exactness would render the statutory provision a 
 trap for the unwary and often lead to the defeat of justice. 2 
 
 § 474. One good paragraph will save the Complaint — An orig- 
 inal attack on appeal will not prevail against a complaint con- 
 taining one good paragraph, although there may be many bad 
 ones. An original attack can not prevail unless the whole 
 complaint is bad. 3 This conclusion, it is evident, is the only 
 
 1 Burkett v. Holman, 104 Ind. 6; 
 Charlestown School Tp. v. Hay, 74 Ind. 
 127; Baltimore, etc., R. Co. v. Kreiger, 
 90 Ind. 380; Du Souchet v. Dutcher, 113 
 Ind. 249; Taylor v. Johnson, 113 Ind. 
 164; Donnellan v. Hardy, 57 Ind. 393; 
 Lassiter v. Jackman, SS Ind. 118; Kin- 
 ney v. Dodge, 101 Ind. 573; Smith v. 
 Smith, 106 Ind. 43; Becknell v. Beck- 
 nell, no Ind. 42. 
 
 2 It is no more than a just application 
 of a sound principle to hold, as it has 
 been held, that if there is enough in 
 the complaint to bar another action 
 an original attack upon appeal will 
 be unavailing. Harris v. Wright, 123 
 Ind. 272; Du Souchet v. Dutcher, 113 
 Ind. 249; Burkhart r^.Gladish, 123 Ind. 
 337; Laverty v. State, 109 Ind. 217; 
 Harper v. Pound, 10 Ind. 32. There 
 is, indeed, little reason for favoring a 
 party who lies by without challenging 
 the complaint in the trial court where 
 there is full opportunity for him to do 
 so, and where a challenge from him 
 would arouse the attention of the trial 
 court and fairly warn his adversary of 
 the imperfections in the pleading. It 
 is upon solid ground, therefore, that the 
 court proceeds in dealing liberally with 
 
 a complaint which passed the trial court 
 unchallenged. 
 
 3 Buchanan v. Lee, 69 Ind. 117; Smith 
 v. Freeman, 71 Ind. 85; Murdock v. 
 Cox, 118 Ind. 266; United States, etc., 
 Co. t'.Rawson, 106 Ind. 215; Louisville, 
 etc., Co. v. Corps, 124 Ind. 427; Louis- 
 ville, etc., Co. v. Ader, no Ind. 376; 
 Charlestown School Tp. v. Hay, 74 
 Ind. 127; McCormick, etc., Co. v. Gray, 
 114 Ind. 340; McCallister v. Mount, 73 
 Ind. 559; Ludlow v. Ludlow, 109 Ind. 
 199; Louisville, etc., Co. v. Peck, 99 
 Ind. 68; Haymond v. Saucer, 84 Ind. 3; 
 Schuff v. Ranson, 79 Ind. 458; Carr v. 
 State, Si Ind. 342; lies v. Watson, 76 
 Ind. 359; Elmore v . McCrary, So Ind. 
 544; Wabash, etc., R. Co. v. Nice. 99 
 Ind. 152; Stout v. Turner, 102 Ind. 41S. 
 In Louisville, etc., Co. v. Peck, 99 Ind. 
 68, 69, the court said: "The assign- 
 ment that neither paragraph of the com - 
 plaint states facts sufficient to consti- 
 tute a cause of action really presents no 
 question. Such an assignment can only 
 be made in regard to the complaint as 
 a whole, and where properly made, as 
 also a motion in arrest of judgment as 
 here made, calls in question the suffi- 
 ciency of the complaint as a whole.
 
 396 
 
 APPELLATE PROCEDURE. 
 
 just one that can be deduced from principle and it is sustained 
 by all the analogies of the law of procedure. While different 
 paragraphs of a complaint may be distributively assailed by 
 demurrer, no such assault can be successfully made on appeal, 
 for one good paragraph will sustain a judgment. 
 
 § 475. Judgment by Default — Requisites of the Complaint — The 
 
 rule that such pleadings as a complaint, or cross-complaint, can 
 not be attacked on appeal unless there is an entire failure to 
 state a cause of action seems to be somewhat relaxed in cases 
 where the judgment is rendered on default. In such cases the 
 rule appears to be that if the complaint is not such as would 
 withstand a demurrer it may be first assailed by the assignment 
 of errors. 1 This doctrine proceeds upon the theory that as 
 there was no trial and no evidence adduced, the rule that absent 
 allegations may be supplied by intendment can not apply and 
 the right to a recovery must depend wholly upon the complaint. 
 There is reason for this ruling, but, nevertheless, it is a ruling 
 to be carefullv limited, for it comes very near trenching upon 
 settled and salutary principles. 
 
 I Knee if either paragraph is sufficient, 
 neither of the assignments here can he 
 maintained." The court cited the cases 
 of Leedy v. Nash, 67 Ind. 311; Smith 
 v. Freeman, 71 Ind. 85; Wagner v. 
 Wagner, 73 Ind. 135; Elmore v. Mc- 
 Crary, So Ind. 544; lies v. Watson, 76 
 Ind. 359; Jones v. Pothast, 72 Ind. 158; 
 Toledo, etc., Co. v. Milligan, 52 Ind. 
 , Spahr : r . Nicklaus, 51 Ind. 221. 
 To the same effect as Louisville, etc., 
 Co. v. Peck, supra, are Higgins V. Ken- 
 dall, 73 Ind. 522; Stout v. Turner, 102 
 Ind. 41S. See, also, Branch v. Faust, 
 11; End. 4.64; Ashton v. Shepherd, 120 
 Ind. 69; Burkhardt v. Gladish, 123 Ind. 
 337; Taylor v. Johnson, 113 Ind. 164. 
 It is quite clear from the authorities 
 cited, as well as from other cases, that 
 Bolin v. Simmons, Si Ind. 92, is in part 
 neous. It is so undoubtedly in so 
 .it is in conflict with the doctrine 
 
 declared in the extract we have made 
 from the opinion in Louisville, etc., Co. 
 v. Peck, supra. 
 
 1 OKI v. Mohler, 122 Ind. 594; Collins 
 v. Gibhs, 2 Burr. S99; Abbe v, Marr, 14 
 Cal. 210; Strock v. Commonwealth, 90 
 Pa. St. 272; Gould's PI. 471; Bliss Code 
 PI., § 43S. In Old v. Mohler, supra, the 
 doctrine of such cases as Parker v. Clay- 
 ton, 72 Ind. 307, Lassiter v. Jackman, 
 SS Ind. 11S, Owen School Tp. v. I lav. 
 107 Ind. 351. Eberhart v. Reister, 96 
 Ind. 47S, Westfall v. Stark, 24 Ind. 377, 
 Scott v. Zartman, 61 Ind. 328, is ap- 
 proved, but it is held that the doctrine 
 asserted in those cases does not apply 
 where there is a judgment upon default 
 inasmuch as there is no evidence from 
 which a cure for an error can be ex- 
 tracted as there is in cases where there 
 is a trial and a verdict.
 
 QUESTIONS FIRST MADE ON APPEAL. 397 
 
 § 476. Answers can not be Attacked for the First Time on Appeal 
 
 — The rule which authorizes an original attack upon a com- 
 plaint in the assignment of errors on appeal does not apply to 
 answers. 1 The change wrought by the act of 1881, 2 which 
 omits the clause contained in the code of 1852 concerning 
 waiver by a failure to demur, 3 does not go so far as to entitle 
 the plaintiff to attack an answer for the first time in the Su- 
 preme Court. This must result from the rule declared in many 
 cases that even though no answer at all is filed the judgment 
 will not be reversed where parties go to trial without objection. 4 
 If the rule is as declared in the long line of cases referred to, 
 it must necessarily follow that where there is an insufficient 
 answer not demurred to there is a waiver of the right to object 
 after having voluntarily submitted the cause for trial, since it is 
 not reasonable to hold that where there is an answer, although 
 insufficient, the defendant is at a greater disadvantage than if 
 there were no answer at all. It would be very difficult, if not 
 impossible, to frame a plausible theory in support of the posi- 
 tion that no answer at all puts the plaintiff in a better situation 
 than he would be if the defendant had filed a defective answer. 5 
 The semblance of an answer is at least as good as no apology 
 for one. The rule that where incompetent evidence sustains 
 the verdict there can be no reversal in cases where the evidence 
 goes to the jury without objection 6 requires that it be held that 
 
 1 Chicago, etc., Co. v. Modesitt, 124 33 Ind. 546; Kirkpatrick v. Alexander, 
 
 Ind.212; Bledsoe v. Rader, 30 Ind. 354; 60 Ind. 95; Benoit v. Schneider, 47 Ind. 
 
 Crowder v. Reed, 80 Ind. 1; City of 13; Moffit v. Medsker Draining Co., 
 
 Evansville v. Martin. 103 Ind. 206; 48 Ind. 107; Casad v. Iloldridge, 40 
 
 Klein v. Fischer, 30 Mo. App. Ct. 568. Ind. 529; Purdues. Stevenson. 54 Ind. 
 
 1 R. S. 1881, § 343. 161; Holten v. Board of Commission- 
 
 3 2 R. S. 1876, p. 65, § 64. ers, etc., 55 Ind. 194. 
 
 4 Farmers Loan and Trust Company 5 It is to be borne in mind that .we 
 v. Canada, etc., Co., 127 Ind. 250; Bender are here speaking of the effect of the 
 v. State, 26 Ind. 285; June v. Payne, 107 change in the statute with respect to 
 Ind. 307; City of Warsaw v. Dunlap, attacking answers for the first time in 
 112 Ind. 576; Hartlep v. Cole, 101 Ind. the Supreme Court, and not as to the 
 458; Johnson v. Briscoe, 92 Ind. 367; effect of the change upon the doctrine 
 Hege V. Newsom, 96 Ind. 426; Cham- of carrying back a demurrer. 
 
 bers v. Butcher, 82 Ind. 508; Lewis v. 6 Stockwell v. State, 101 Ind. 1 ; Riehl 
 Bortsfield, 75 Ind. 390; Felger v. Et- v. Evansville Foundry, 104 Ind. 70; Kin- 
 zell, 75 Ind. 417; McCormick v. Hyatt, caid v. Indianapolis Natural Gas Co.,
 
 
 APPELLATE PROCEDURE. 
 
 an answer can not be successfully assailed on appeal for the 
 first time. It is in harmony with the spirit of the code which is 
 that objections shall be seasonably and openly presented, and 
 that no devices intended to ensnare or entrap litigants shall be 
 tolerated. 1 
 
 § 477. Cross-Complaint or Counter-Claim— A cross-complaint or 
 counter-claim 2 stands upon a different footing from that on which 
 an answer rests. A counter-claim under the reformed system 
 of procedure established by the code is substantially the same 
 thing as a complaint, inasmuch as its office is to state a cause 
 of action which will entitle the party who files it to affirmative 
 relief. 3 It is to be observed, however, that a counter-claim 
 must plead matters that are not entirely foreign to the matter 
 to which the complaint relates, 1 but it may, nevertheless, allege 
 
 124 Ind. 577; Judd v. Small, 107 Ind. 
 398; McFadden v. Fritz, no Ind. 1; 
 Compton v. Ivey,59lnd. 352; Indiana, 
 etc., Co. v. Finnell, 116 Ind. 414,422; 
 Graves -'.State. 121 Ind. 357; Yeagerf. 
 Wright, 112 Ind. 230; Roberts v. Gra- 
 ham, 6 Wall. 578; Cross v. People, 47 
 111. 152, S. C. 95 Am. Dec. 474; Stod- 
 dard v. Chambers. 2 How. 2S4; Hough- 
 ton v. Jones, 1 Wall. 702; Fowler v. 
 Bowery, etc., Bank, 113 N. Y. 450. 
 
 1 City of Evansville v. Martin, 103 
 Ind. 206; Riehl v. Evansville Foundry, 
 104 Ind. 70. 74. In Indianapolis, etc., 
 Co. f. Petty, 30 Ind. 261, it was said: 
 "The code has very little toleration 
 for the practice of concealing questions 
 from the lower courts with a view to 
 make them available on appeal." 
 
 2 Under the code a counter-claim is 
 a pleading by a party to a suit, or ac- 
 tion, setting up an affirmative cause of 
 action, and is really the correct name 
 of the pleading often called a cross- 
 complaint. In this State the pleading 
 i> usually designated as a cross-com- 
 plaint, although in strictness it should 
 be designated as a counter-claim. The 
 terms "cross-complaint" and "coun- 
 
 ter-claim " as ordinarihy used denote 
 the same thing, although a counter- 
 claim is something more than a cross- 
 complaint, inasmuch as it includes the 
 element of recoupment. Standley v. 
 Northwestern Insurance Co., 95 Ind. 
 254, and cases cited. 
 
 3 Jones v. Hathway,77 Ind. 14; Stand- 
 ley v. Northwestern, etc., Ins. Co., 95 
 Ind. 254; Dietrich v. Koch, 35 Wis. 
 618, 626; Tyler -■. Willis, 33 Barb. 327, 
 333; Belleau v. Thompson, 33 Cal. 495; 
 Great West Ins. Co. v. Pierce, 1 Wyo. 
 49; Clarkson v. Manson, 60 How. Pr. 
 Rep. 45, 4S; Gilliman v. Eddy, S How. 
 Pr. Rep. 133; Winterfield v . Bradnum, 
 3 Q^B. D. 324, 326; Hay v. Short, 49 
 Mo. 139, 143; Grignon v. Black, 45 N 
 W. Rep. 122; Thomson v. Sanders, 118 
 N. Y. 252, S. C. 23 N. E. Rep. 374; 
 Woodruff v. Garner, 27 Ind. 4. 
 
 4 Sterne -'. First National Bank, 79 
 Ind. 560; Williams v. Boyd, 75 Ind. 
 286; Hunter v. McLaughlin, 43 Ind. 
 38; Shelly v . Vanarsdoll, 23 Ind. 543; 
 Grimes v. Duzan, 32 Ind. 361; Camp- 
 bell v. Routt, 42 Ind. 410; White v. 
 Miller, 47 Ind. 3S5; Thompson v. 
 Toohev, 71 Ind. 296; Washburn V.
 
 QUESTIONS FIRST MADE ON APPEAL. 39<J 
 
 such facts as constitute a substantive cause of action. There is 
 such a clear and well defined distinction between a counter- 
 claim and an answer that it has been held again and again that 
 an answer can not perform the office of a counter-claim. 1 
 
 § 478. Requisites of a Counter-Claim — A counter-claim or cross- 
 complaint is to be tested substantially as a complaint, and must, 
 as a general rule, be sufficient in itself. 2 As it is to be thus 
 tested and must stand substantially as a complaint, it is but 
 reasonable to hold that it may, when radically defective, be 
 challenged on appeal. 3 It is not to be forgotten, however, that 
 it is only counter-claims that are substantially cross-complaints 
 that can be first assailed in the court of last resort. Not every 
 pleading that opposes a cause of action by an affirmative de- 
 fense can be regarded as strictly a counter-claim, and it is only 
 to pleadings that are properly counter-claims that the rules 
 stated are relevant. The fact that a defense by way of mere 
 recoupment is not always a counter-claim in the sense implied 
 when a pleading setting up a cause of action is referred to does 
 
 Roberts, 72 Ind. 213; Williams v. 62 Ind. 259; Gabe v. McGinnis, 55 Ind. 
 Boyd, 75 Ind. 286; Standley v. North- 372; Hinkle v. Margerum, 50 Ind. 240. 
 western, etc., Ins. Co. ,95 Ind. 254; Har- 2 Gossard v. Woods, 98 Ind. 195; 
 rison v. McCormick, 69 Cal. 616, S. C. Jones v. Hathaway, 77 Ind. 14. 
 11 Pac. Rep. 456; Humbert v. Brisbane, 3 Conger v. Miller, 104 Ind. 592; 
 25 So. Car. 506; Clark's Cove Guano Wadkins v. Hill, 106 Ind. 543; Shoe- 
 Co. v. Appling, 33 W. Va. 470, S. C. 10 maker v. Smith, 74 Ind. 71 : Masters v. 
 S. E. Rep. 809. The name does not de- Beckett, S3 Ind. 595; Anderson v. Wil- 
 termine the character of the pleading; son, 100 Ind. 402; Ewing v. Patterson, 
 that must be determined from the facts 35 Ind. 326. There is an exception to 
 pleaded. Searle t'.Whipperman, 79 Ind. this general rule which it may be well 
 424; Johnson v. Hosford, no Ind. 572; to note, although it does not affect the 
 Crowder v. Reed, 80 Ind. 1; Harrison phase of the subject under immediate 
 v. McCormick, 69 Cal. 616, S. C. n consideration, and that is that an ex- 
 Pac. R. 456. hibit filed with the complaint may be 
 'Anderson, etc., Association v. referred to by the counter-claim or 
 Thompson, 88 Ind. 405; Gaff v. Greer, cross-complaint. Pattison v. Vaughan, 
 88 Ind. 122; Hadley v. Prather, 64 Ind. 40 Ind. 253; Sidener v. Davis. 69 Ind. 
 137; Douthitt v. Smith, 69 Ind. 463; 336; Gardner v. Fisher, 87 Ind. 369; 
 Crowder v. Reed, 80 Ind. 1 ; Conger v. Anderson v. Wilson, 100 Ind. 402. The 
 Miller, 104 Ind. 592; Schee v. McQuil- exception tests the rule but does not 
 ken, 59 Ind. 269; Toledo, etc., Works v. overthrow it; it is, indeed, all the clearer 
 Work, 70 Ind. 253; Stockton v. Stock- and stronger for the te6t. 
 ton, 73 Ind. 510; Branham v. Johnson,
 
 400 APPELLATE PROCEDURE. 
 
 not, however, oppose the conclusions stated, since there may- 
 be a mere defense in the nature of a counter-claim, A defense 
 which does no more than meet a cause of action alleged in a 
 complaint can not, with propriety, be denominated a cross-com- 
 plaint or a counter-claim. 1 In a qualified sense such a defense 
 may be a counter-claim, that is, it may arise out of a counter- 
 claim — it may be an affirmative claim opposed to that of the 
 plaintiff' — but it is, nevertheless, not a counter-claim in the sense 
 in which that term is employed when a pleading which is akin 
 to a cross-complaint and which sets forth facts constituting a 
 cause of action entitling the party to affirmative relief is intended 
 to be named or designated. 
 
 § 479. Reply — The principle which requires the conclusion 
 that the sufficiency of an answer can not be challenged on ap- 
 peal for the first time applies to a reply, and it has been held 
 that a reply can not be successfully attacked for the first time 
 on appeal. 2 This principle is, indeed, the one which gives to 
 an appellate tribunal its chief characteristic, for such a tribunal 
 is primarily and essentially one for the review of decisions of a 
 court of inferior jurisdiction and not one for the decision of 
 questions not adjudicated by some other judicial tribunal. Man- 
 ifestly a leading purpose of the creation of appellate tribunals 
 is to give litigants an opportunity for securing the judgment of 
 two courts upon the same questions ; if it were otherwise it 
 would in many instances be quite as well to simply require the 
 decision of a single tribunal. It is, therefore, a departure from 
 
 1 It is upon this ground that the de- upon which relief may be adjudged as 
 
 cision in Hall 7'. Hedrick, 125 Ind. 326, fully as to an original plaintiff. The 
 
 S. C. 25 N. E. Rep. 350, may be, per- case of Luntz v. Greve, 102 Ind. 173, 
 
 haps, sustained, but the doctrine of that is of a different type, for in that case 
 
 case can not be extended to cases where the counter-claim secured all the relief 
 
 the counter-claim states a cause of ac- an answer could possibly do under the 
 
 tion which entitles the cross-complain- statute, but an answer can, it is obvious, 
 
 ant to affirmative relief. This is evident very rarely, if ever, procure the full re- 
 
 when it is brought to mind that a lief that a counter-claim may secure. 
 counter-claim will stand although the 2 Hon v. State, 89 Ind. 249; Walker 
 
 complaint is dismissed, and that a cross- v. Scott, 106 N. C. 56, S. C. 1 1 S. E. Rep. 
 
 plaint or counter-claim may, and 364; Wood v. Lake, 13 Wis. 84. 
 usually does, state a cause of action
 
 QUESTIONS FIRST MADE ON APPEAL. 401 
 
 principle to permit original questions to be made in an appellate 
 tribunal, except in cases where there is clearly no cause of ac- 
 tion, 1 or no jurisdiction. 
 
 § 480. The Doctrine applicable to Answers and Replies — It is 
 
 true that in some of the cases expressions may be found which 
 seem to authorize the conclusion that the question of the suffi- 
 ciency of an answer or reply may be made in the first instance 
 on appeal, but the strong current of authority is against that 
 doctrine. It is, indeed, impossible to enforce that doctrine 
 without doing violence to one great object which the framers 
 of our code sought to attain, and that is, as has been already 
 suggested, to compel parties to bring forward all objections 
 which they desire to make available on appeal so that the ad- 
 verse parties may be informed of them and the trial court be 
 so fully apprized of their character as to enable it to intelligently 
 grasp the legal principles involved. In almost every phase 
 and posture — in civil cases, in criminal cases and in special 
 proceedings — the general question has been presented and in 
 every well considered case the judgment of the court has been 
 that questions on the pleadings (subject to the exceptions here- 
 tofore noticed) must be so presented • to the trial court as to 
 challenge and require its decision. 2 
 
 1 Some able courts do, indeed, hold Frank, 76 Ind. 594; Smith v. Foster, 59 
 that even where there is no cause of ac- Ind. 595; Sloan v. Wittbank, 12 Ind. 
 tion stated an attack on appeal for the 444; Allis v. Gumberts, 1 Ind. 104; Key 
 first time will be unavailing. Knapp v. Robinson, 8 Ind. 36S; Shawt'.Bink- 
 v. Simon, 96 N. Y. 284; McKnight v. ard, 10 Ind. 227; Tinder v. Association, 
 Devlin, 52 N. Y. 399. 47 Ind. 351; Bowman v. Philips, 47 Ind. 
 
 2 Zehnor v. Beard, S Ind. 96; Horn- 341; Rhodes v. Mummery, 48 Ind. 216; 
 berger v. State, 5 Ind. 300; Scheible v. Higham v. Warner, 69 Ind. 549; Potts 
 Slagle, 89 Ind. 323; Cupp v. Campbell, v. Felton, 70 Ind. 166. Other courts 
 103 Ind. 213; Buchanan v. Berkshire affirm the same general doctrine. Cop- 
 Life Ins. Co., 96 Ind. 510; Shirts v. ley v. Rose, 2 N.Y. 115; Neft" v. Clute, 
 Irons, 28 Ind. 458; Hauser v. Roth, 37 12 Barb. 466; Lane v. Pere Marquette, 
 Ind. 89; Johnson v. Stebbins, 5 Ind. etc., Co., 62 Mich. 63, S. C. 2S N. W. 
 364; Newhouse v. Miller, 35 Ind. 463; Rep. 786; Patton v. Gash, 99 N. C. 2S, S. 
 Haiinum v. State, 38 Ind. 32- Camp- C. 6 S. E. Rep. 193; Richardson v. 
 bell v. Coon, 61 Ind. 516; English v. Woodring, 74 Iowa, 149, S. C. 37 N. 
 State, Si Ind. 455; Louisville, etc., W. Rep. 122; Jefferson v. Chapman, 
 Co. v. Fox, 101 Ind. 416; Kurtz v. 127IH.43S. 
 
 26
 
 102 APPELLATE PROCEDURE, 
 
 § 481. The Reason of the Role — There is solid reason for the 
 general rule that a party who litigates questions without pre- 
 senting objections to the pleadings, or without calling upon the 
 trial court to require pleadings, shall not be heard on appeal to 
 urge that there were no pleadings or that they were not suffi- 
 cient, and a departure from this rule would cause almost end- 
 less and hopeless confusion. The rule is required to give con- 
 sistency to appellate practice ; indeed without it there could be 
 no system, since, in the absence of such a rule, cases would be 
 but particular instances unregulated by any principle, forming 
 fragmentary and disjointed parts of legal procedure without 
 connecting elements, and destitute of uniformity and stability. 
 The rule is required by the principle often declared by our own 
 and other courts that parties on appeal must abide by the theory 
 adopted by them in the trial court. 1 It is required by the gen- 
 eral doctrine that the court of last resort should not be required 
 to decide a question that has not been passed upon by the trial 
 court,- since any other holding would in effect make the appellate 
 court one of original jurisdiction. The true theory is that there 
 must be a decision by a court of original jurisdiction to be re- 
 viewed by the appellate tribunal, for unless this be so the ap- 
 pellate court becomes a trial court. 
 
 § 482. Rendering Judgment on the Pleadings — Resembling but 
 yet essentially different from the questions arising upon the rule 
 which permits complaints and counter-claims, or cross-com- 
 
 1 Brink v. Reid, 122 Ind. 257; Louis- tiss v. Hazen, 56 Conn. 146; Home, 
 ville, etc., Co. f. Wood, 113 Ind. 544; etc., Co. v. Caldwell, 85 Ala. 607; Han- 
 Carver v. Carver, 97 Ind. 497; Adams son v. Fricker, 79 Cal. 283, 21 Pac. Rep. 
 v. Davis, 109 Ind. jo; Lake Eric, etc., 751; Nelson v. Wilson, 75 Iowa, 710, 
 Co. v. Acres, 10S Ind. 54S; Bloomfield S. C. 3S N. W. Rep. 134; Coffman v. 
 R. R. Co. v. Van Slike, 107 Ind. 480; Acton, 74 Iowa, 147. S. C. 37 N.W. Rep. 
 Vann v. Rouse, 94N.Y.401, 407; Ger- 121; Gorsuch v. Rutledge, 70 Md. 272, 
 non v. Hoyt, 90 N. Y. 631; Campbell 17 Atl. Rep. 76; Engleman v. Arnold, 
 v. Birch, 60 ifr.Y. 214; Wilson v. Rocke, 11S Ind. 81, S. C. 20 N. E. Rep. 505; 
 58 N'.Y. 642; Hill v. Heermans, 17 Hun. Taylor v. Nichols, 86 Tenn. 32, S. C 5 
 470; Paige v. Fazackerly, 36 Barb. 392. S. W. Rep. 436; Beatty v. Brown. 85 
 
 * ,Osborne & Co. ^.Williams, 37 Minn. Ala. 209; Jones 7. Degge, 84 Va. f>Sq; 
 
 507; Sylvis v. Sylvis, n Col. 319, 17 Pa. Bewley v. Graves. 17 Ore. 274, 20 Pac. 
 
 Rep. 912; Porter v. Western, etc.,Co., 97 Rep. 322; Budd v. Power, 8 Mont. 380. 
 N.C. 66, S. C. 2 Am St. R. 272; Cur-
 
 QUESTIONS FIRST MADE ON APPEAL. 4Q3 
 
 plaints, to be assailed in the first instance on appeal are the 
 questions which grow out of the practical application of the 
 rule that a party may, in the proper case, have judgment in his 
 favor on the pleadings. 1 It has been held that where there is 
 no complaint or no answer the party in fault may be compelled 
 to suffer judgment, unless there has been a waiver or something 
 has intervened which precludes the party from demanding such 
 a judgment. 2 But the question which connects itself with the 
 subject here under immediate consideration is not solved by 
 the rule stated, since it is here necessary to ascertain whether 
 a party can in the first instance successfully demand judgment on 
 the pleadings after the case reaches the appellate court. It is clear 
 from the reasoning in analogous cases that the sound rule is that 
 the question of the right of a party to judgment on the pleadings 
 can not be first made on appeal, since no opportunity was afforded 
 the trial court to consider or decide that question, and beyond 
 controversy the general rule is that no question can be made 
 on appeal which was not appropriately presented to the trial 
 court. The exceptions to this general rule have been consid- 
 ered, and it is evident that the case of a party asking judgment 
 on the pleadings does not fall within those exceptions : hence 
 it is correctly held that a party must first move in the trial 
 court for judgment on the pleadings. 3 
 
 § 483. Set-Off — After much wavering it has been held that a 
 set-off is substantially the same thing as a counter-claim or 
 
 1 R. S. 1SS1, § 566. sylvania Co. v. Roney, 89 Ind. 453; 
 
 2 Fitch v, Polke, 5 Blackf. 86; Board Bledsoe v. Rader, 30 Ind. 354; Here- 
 of Trustees of the Wabash, etc., Co. v. dith v. Lackey, 16 Ind. 1, 6; Wells v. 
 Mayer, 10 Ind. 400; Martindale v. Price, Dickey, 15 Ind. 361; Martindale v, 
 14 Ind. 115; Needham v. Webb, 20 Ind. Price, 14 Ind. 115; Dunham v. Court- 
 213. See, upon the subject generally, enay, 24 Neb. 627; Budd v. Power, 8 
 Musselman t'.Wise, 84 Ind. 248; Brown Mont. 380. See, generally, Willey v. 
 v. Searle, 104 Ind. 21S; Donaldson v. Strickland, S Ind. 453; Meredith v. 
 Dunn, 87 Ind. 343; Cox v. Vickers, 35 Lackey, 14 Ind. 529; Roush v. Emer- 
 Ind. 27; Train v. Gridley, 36 Ind. 241; ick, So Ind. 551; Hauser v. Roth, 37 
 Locke v. Merchants National Bank, 66 Ind. S9; Fisher v. Purdue, 4S Ind. 323; 
 Ind. 353, 360. Trentman v. Eldridge, 9S Ind. 525, ^27, 
 
 3 Shordan v. Kyler, 87 Ind. 3S; Fowler v. Bowery Savings Bank, 113 
 Cupp v. Campbell, 103 Ind. 213; Penn- N. Y. 450.
 
 404 APPELLATE PROCEDURE. 
 
 cross-complaint, so that, possibly, it may be assailable on appeal. 1 
 Assuming that a set-off is in substance a counter-claim, there 
 is no difficulty in holding it subject to attack on appeal, but it 
 is not quite clear on principle that it can be regarded as the 
 same thing as a counter-claim. That question, however, is 
 settled by the later decisions. A set-off is hard to classify ; it is 
 in truth a nondescript, 2 and while there are strong reasons 
 against classifying it as a counter-claim it can hardly be said 
 that the classification is indefensible. At all events, it is better 
 to treat the question, as settled and steadily hold that it stands 
 on substantially the same footing as a cross-complaint or coun- 
 ter-claim, than to produce confusion and uncertainty by a 
 wavering line of decisions. 
 
 § 484. The Rule where a bad Answer is proved — There is a class 
 of cases which seems to trench upon the general rule that ques- 
 tions upon the pleadings, or questions concerning the failure to 
 plead, must be first presented to the trial court and its decision 
 invoked, but, upon examination, it will be found that the cases 
 of the class first mentioned may be discriminated from those 
 which assert and enforce the general rule, although some ex- 
 
 1 Blount v. Rick, 107 Ind. 238,245; be good might well be held bad for want 
 
 Kennedy v. Richardson, 70 Ind. 524; of facts. Richey v. Bly, 115 Ind. 232; 
 
 Daily v. National, etc., Co., 64 Ind. 1; Zeigelmueller v. Seamer, 63 Ind. 488; 
 
 Gregory v. Gregory, 89 Ind. 345; Cur- Harris v. Rivers, 53 Ind. 216; Shelly v. 
 
 ran v. Curran, 40 Ind. 473; Mullendore Vanarsdoll, 23 Ind. 543; Indianapolis, 
 
 v. Scott, 45 Ind. 113; Ewing v. Patter- etc., Co. v. Ballard, 22 Ind. 448. This 
 
 son, 35 Ind. 326; Shoemaker v. Smith, consideration proves that the reasoning 
 
 7) Ind. 71; Boil v. Simms, 60 Ind. 162; in Boils v. Simms, supra, is not sound, 
 
 Wills v. Browning, 96 Ind. 149; Rush whatever may be said of the conclusion 
 
 v. Thompson, 112 Ind. 158, 165. The reached. The case of Roback r*. Pow- 
 
 earlii i ,1 a somewhat dif- ell, 36 Ind. 515, can not be harmonized 
 
 ferent doctrine. Hamilton v. Noble, 1 with that case, nor, indeed, with the 
 
 Blackf. 18S; Jones v. McGrew, 1 Blackf. cases first named above. 
 
 192; Coe v. Givan, 1 Blackf. 367; Hanna 2 That a set-off is a nondescript is 
 
 v. Ewing, 3 Blackf. 34; Young v. Harry, evidenced in part at least by th( facl 
 
 ickf. 167; Hurd v. Earl, 4 Blackf. that it may be pleaded notwithstanding 
 
 184; Conklin v. Waltz, 3 Ind. 396. The the bar of the statute of limitations, 
 
 earlier decisions were not without some Fankboner v. Fankboner, 20 Ind. 62; 
 
 strength, inasmuch as it i- settled that a Armstrong v. Caesar, 72 Ind. 2S0; Livi- 
 
 set-off can not be pleaded to an action good v. Livigood, 6 Blackf. 268. 
 for a tort, and an answer thai could not 

 
 QUESTIONS FIRST MADE OX APPEAL. 405 
 
 pressions in the opinions may not harmonize with the rule. The 
 cases to which reference is made as creating apparent excep- 
 tions to the general doctrine are those in which it is held that 
 evidence proving a bad answer will not support a judgment in 
 favor of the defendant. 1 Properly limited and applied the doc- 
 trine of these cases is not at variance with principle, but it is 
 one to be carefully confined within reasonable limits. The 
 doctrine may be upheld where the evidence wholly fails to 
 make out a defense ; that is, where, conceding all that it fairly 
 tends to prove, the defense fails as to so mematerial point. 2 It 
 can not be so extended as to be allowed to control cases where 
 the evidence is simply incompetent, 3 as for instance, when 
 parol evidence is given where it should have been written, or 
 where there is a curable variance, 4 since, to permit this would 
 be to permit an indefensible violation of the general rule that 
 such questions must be presented by an appropriate objection 
 and exception in the court of original jurisdiction. 
 
 § 485. Effect of the Rule respecting the proving of a bad Answer 
 
 — The cases which hold that, where the evidence entirely fails 
 to establish a defense, a judgment in favor of the defendant 
 will be reversed, although the answer was not attacked in the 
 trial court, do not authorize the inference that a question may 
 be made on appeal for the first time upon the evidence ; on the 
 contrary, the inference is that the question must be appropri- 
 ately presented to the trial court and this must be done, in gen- 
 eral, by a motion for a new trial. It is evident, therefore, that 
 the question is considered on appeal upon the evidence, not 
 upon the pleading, and that the question considered is the same 
 as that presented to the trial court and upon which that court 
 made a decision. All the conditions of the general rule re- 
 quiring questions to be first presented to the trial court are thus 
 
 1 McCloskey t\ Indianapolis, etc., Co., well v. State, ioi Ind. i; Riehl v. 
 67 Ind. 86; Dorman v. State, 56 Ind. Evansville Foundry Association, 104 
 454; Freitag f. Burke, 45 Ind. 38; West- Ind. 70. 
 
 ern Union Tel. Co. v . Fenton, 52 Ind. 1. 4 Coates v. First National Bank, 91 
 
 2 It may well be doubted whether the N. Y. 20, 31; Roberts v. Graham, 6 
 decision in Roback v. Powell, 36 Ind. Wall. 578; Pike v. Evans, 15 John. 210, 
 515, does not go too far. 213. 
 
 3 Graves v. State, 121 Ind. 357; Stock-
 
 .| ()( ; APPELLATE PROCEDURE. 
 
 complied with, and there is neither a shifting of position nor an 
 attempt to secure a decision from the appellate court upon an 
 original question. It is clear, that, with rare exceptions, which 
 it is not important to here note, an appellant would not be heard 
 to complain that the evidence was insullicient to establish a de- 
 fense unless he had properly presented that question to the 
 trial court. It is, in truth, not because the answer is insufficient 
 that a judgment is vulnerable in a case of the class under con- 
 sideration, but the judgment is subject to attack because the 
 finding or verdict is contrary to law inasmuch as there is no 
 evidence upon which the law will permit a recovery by the de- 
 fendant. He fails because he has no evidence to establish a 
 fact, or facts, essential to a recovery, not because he has an in- 
 sufficient answer. 
 
 § 486. Effect of proving a bad Answer — The fact that the trial 
 court declines to find upon insufficient evidence although the 
 answer is fully proved, does not require the conclusion that the 
 case is an exception to the general rule. The appeal by the 
 plaintiff brings up the case on the evidence and he may^ with 
 entire propriety, insist upon a reversal if no defense is estab- 
 lished, although he may not have assailed the answer in the 
 court below, provided, of course, that he there made the proper 
 motion and reserved the proper exceptions. He can not, to be 
 sure, assail the answer for the first time on appeal, but he may 
 attack the proof, for it is one thing to attack the proof and an- 
 other to attack a pleading. Where the defendant appeals and 
 has no evidence sufficient to authorize a finding or verdict in 
 his favor, he can not, with propriety or justice, assert that, al- 
 though he has no evidence, yet, as he has an answer which has 
 not been challenged, he is entitled to judgment. 1 
 
 1 The early New York cases of Fox as asserting that doctrine. In strict- 
 v. Hunt. S How. Pr. R. 12. and M.illorv ness objections should be presented to 
 Lamphear, 8 How. Pr. 491. have pleadings before trial, but it does not 
 been practicallv overruled. Smith v. follow because objections are not pre- 
 Countryman, 30 V Y. 655. It is held sented before trial that a party can re- 
 in the case last named that objections cover where the facts proved are not 
 to the pleadings should be presented to such as will support a finding or ver- 
 nd the case of Reynolds diet. The question is not disposed of 
 Lounsbury, 6 Hill, 534, is referred I ■ by declaring that objections to plead-
 
 QUESTIONS FIRST MADE OX APPEAL. 4Q7 
 
 § 487. Anomalous Cases — Anomalous cases occasionally arise 
 which can hardly be placed under any general rule where error 
 may be assigned by one who has not joined issue in such a 
 mode as would ordinarily entitle him to relief. 1 As an illustra- 
 tion of the character of the cases of which we are speaking 
 may be taken one wherein the trial court proceeds upon an er- 
 roneous theory which is carried to a judgment affecting the in- 
 terests of all of the parties to the suit or action. In such a 
 case the whole judgment or decree must be reversed in order 
 that complete justice may be done. But such cases are very 
 rare, and there should be very strong reason for creating excep- 
 tions to the general rule. It is very seldom, indeed, that a case 
 can arise in which a judgment will be disturbed where the ques- 
 tion was not definitely and appropriately made in the trial 
 court, and hence it is never safe in practice to depart from set- 
 tled principles. 
 
 § 488. Criminal Cases — Very much the same rule governs the 
 subject of making objections for the first time on appeal in 
 criminal cases as that which prevails in ordinary civil actions. 
 As criminal cases and civil actions are controlled by the same 
 general principle it is not illogical or unnatural to speak in this 
 place of the rule which obtains in criminal cases. The general 
 rule in such cases is that an indictment or information which 
 wholly fails to charge a public offense may be originally assailed 
 on appeal. 2 This rule is obviously just, since it would be de- 
 
 ings must be presented in due season, 2 Hilt. 389; Pope v. Dinsmore, 8 Abb. 
 
 for the question is not whether a plead- Pr. R. 429. 
 
 ing is sufficient or insufficient but l Whipperman v. Dunn, 124 Ind. 
 
 whether there is evidence which will 349. See, also, State v. Templin, 122 
 
 warrant a rinding or verdict. There Ind. 235. This ruling in the case 
 
 are New York cases holding that al- cited may be sustained upon the ground 
 
 though there is a bad pleading, unob- that the opening of the controversy 
 
 jected to, still judgment may be given renders it necessary to open it as to 
 
 upon the evidence. Some of the cases all, but the doctrine is, at best, one to 
 
 carry the doctrine farther than it can be limited rather than extended, since 
 
 justly be carried under our system of its extension would result in confusion 
 
 procedure. Wright v. Hooker, 10 N. detrimental to the proper administra- 
 
 \. 51, 59; Meyer t'. Fiegel, 34 How. Pr. tion of justice. 
 
 R. 434; Lounsbury v. Purdy, 18 N. Y. 3 Henderson v. State, 60 Ind. 296; 
 
 515, 521; Emery v. Pease, 20 N. Y. 62, O'Brien v. State, 63 Ind. 242; Arbin- 
 
 64; Winterson v. Eighth Ave. R. Co., trode v. State, 67 Ind. 267. It is very
 
 108 
 
 APPELLATE PROCEDURE. 
 
 structive of principle to hold that a conviction of a criminal 
 offense can be sustained without an indictment or information. 
 It is, however, to be borne in mind that it is true in criminal 
 cases as it is in civil actions, that an assault first made by the 
 assignment of errors does not always serve the purpose of a 
 motion to quash, for defects may be reached by a motion of 
 that kind that will not avail on an original attack in the appel- 
 late tribunal. Thus, an objection that an information or in* 
 dictment is uncertain may avail on a motion to quash and yet 
 be without avail where the first attack is made by a specifica- 
 tion in the assignment of errors. 1 It is, indeed, true that de- 
 fects available on a motion to quash are not always available on 
 a motion in arrest of judgment. 2 Analogous to the rule which 
 prevails respecting complaints is the general rule respecting 
 original attacks upon indictments in the assignment of errors, 
 for that rule is that the attack will fail if there is one valid 
 count sustaining the judgment, although there may be many bad 
 ones. The rule upon this subject is similar to that which runs 
 
 doubtful whether these cases do not 
 carry the doctrine too far, for they hold 
 that the accused may present the ques- 
 tion on appeal although he pleaded 
 guilty in the trial court. In civil cases 
 a confession would preclude an attack 
 on appeal, and it is not easy to perceive 
 why it should not do so in criminal 
 cases, except, perhaps, where there is 
 no statute upon the subject, or no at- 
 tempt to define an offense of the kind 
 sought to be charged. The case of 
 Hays v . State, 77 Ind. 450, goes even 
 further, and its soundness may well be 
 doubted. In suggesting these doubts, 
 we do not mean to question the sound- 
 ness of the rule that where no offense 
 is charged and there is no plea of guilty, 
 the indictment may be challenged on 
 appeal. It seems to us that the decis- 
 ion in Mayer v. State, 4S Ind. 122, is a 
 correct expression of the law. The 
 cases first named certainly L, r o much be- 
 yond the earlier cases. In Daily v, 
 
 State, 10 Ind. 536, the question was not 
 fully considered, and only a vague state- 
 ment of the general rule was made. In 
 Reams v. State, 23 Ind. m, it was cor- 
 rectly held that the question of jurisdic- 
 tion of the subject may be made on ap- 
 peal. Greer v. State, 50 Ind. 267, does 
 not touch the question. 
 
 1 Stewart v. State, 113 Ind. 505. See, 
 generally, Lawrence v. Monroe. 43 
 Kan. 125, S. C. 10 Law. Rep. Anno. 520. 
 
 2 Nichols v. State, 127 Ind. 406; Grae- 
 ter v. State, 105 Ind. 271; Greenley v. 
 State. 60 Ind. 141; Lowe v. State, 46 
 Ind. 305; Shepherd v. State, 64 Ind. 43; 
 Bright v. State, 90 Ind. 343, 578; Trout 
 v. State, 107 Ind. 5S0; Rubush v. State, 
 112 Ind. 107, 113; Hoover v. State, no 
 Ind. 349; State v. Nowland, 29 Ind. 212. 
 216. The reason for the rule is admir- 
 ably stated by Frazier, J., in the case 
 last cited. What is there so well said 
 applies with even greater force to an 
 attack made for the first time on appeal.
 
 (QUESTIONS FIRST MADE ON APPEAL. 409 
 
 throughout the whole system of procedure ; the objection must 
 be made to separate pleadings, whether represented by counts 
 or by paragraphs, distributively, for a general attack will fail 
 if one or more 1 counts, or paragraphs, be sufficient to support 
 the judgment. It is, to repeat, in substance, what has been 
 elsewhere said, always safer to attack in detail, for joint attacks 
 are often perilous. 
 
 1 It is well settled that where there is 87 Ind. 398; Bryant v. State, 106 Ind. 
 
 one good count in an indictment a mo- 549; Casily v. State, 32 Ind. 62; State 
 
 tion to quash addressed to the pleading v. Staker, 3 Ind. 570: .THikes. v . State, II 
 
 as an entirety will fail. Dantz v. State, Ind. 557.
 
 
 CHAPTER XXIV. 
 
 HOLDING PARTIES TO TRIAL COURT THEORIES. 
 
 The cardinal principle. § 497. 
 
 Adherence to theory. 498. 
 
 491. Illustrative cases. 
 
 492. Instances of the application of 
 
 the general doctrine. 500. 
 
 493. The rule as applied to cases in- 501. 
 
 volving constitutional ques- 
 tions. 502. 
 
 494. The theory as outlined by the 
 
 pleadings. 503. 
 
 49 v Requiring adherence to the 
 
 opening statement. 
 496. The doctrine of election. 
 
 Limitations of the rule. 
 
 Exceptions to the rule. 
 
 The rule as affecting juristic 
 tional questions. 
 
 Special cases. 
 
 Nature of jurisdictional ques- 
 tions. 
 
 Original objections to jurisdic- 
 tion. 
 
 Jurisdiction of the subject not 
 the same thing as jurisdiction 
 of the particular case. 
 
 § 489. The Cardinal Principle — The cardinal principle of ap- 
 pellate procedure which requires that questions of which a re- 
 view is sought shall first be appropriately brought before the 
 trial court for decision, makes it indispensably necessary that 
 positions should not be shifted on appeal, for, if parties were 
 allowed to change positions, the appellate tribunal would often 
 be compelled to decide questions as purely original ones, and 
 this, certainly, is not the purpose for which they were created. 
 It is, therefore, with reason held that parties must stand by the 
 positions assumed in the trial court and upon which they asked 
 and obtained rulings. The same rulings are to be reviewed 
 and not different ones. 1 It may be true that in some instances 
 parties are not bound to abide by their positions in minute de- 
 tail, but they are, at all events, required to abide by the general 
 positions upon which they planted themselves in the trial court. 
 
 1 As illustrative of this principle may 29; Railroad w.Gibbes, 24 So. Car. 60, 75. 
 
 Iduced those cases which hold that It has been held by our own court that 
 
 ions can not be decided in advance questions will not be considered on ap- 
 
 for the reason that an appellate tribunal peal, although parties agree that they 
 
 only reviews decisions made by an in- shall he considered. Whitman:'. Wel- 
 
 ferior tribunal. Fisk v. Henarie, 14 Ore. lcr, 39 Ind. 515. 
 
 (410)
 
 HOLDING TO TRIAL COURT THEORIES. 4H 
 
 § 490. Adherence to Theory— The strong current of authority 
 carries the general principle stated to its logical conclusion, for 
 the courts are well agreed upon the doctrine that the theory 
 acted upon in the lower court must be adhered to in the higher. 1 
 The rule that the theory acted upon in the trial court must be 
 adhered to upon appeal finds expression in various forms, but 
 the meaning conveyed, whatever the form of words employed 
 may be, is essentially the same. Some of the courts express 
 the rule by saying that new issues can not be made on appeal, 2 
 others give it expression by saying that there can be no change 
 of base on appeal, 3 and others by some such expression as that 
 the matter was not contested below and it can not be contested 
 above. 4 
 
 § 491. Illustrative Cases — The principle of appellate practice 
 requiring adherence to the theory assumed in the lower court 
 is illustrated in many cases, but in all the principle is adhered 
 to with undeviating steadiness. It seems hardly necessary or 
 profitable to refer to particular instances for the sole purpose 
 of establishing the existence of a rule so evidently just and so 
 essential to the fair and orderly administration of justice, but it 
 is necessary and profitable to refer to some of those instances 
 for the purpose of exhibiting the practical effect and operation 
 
 1 Lake Erie, etc., R.Co. v. Acres, 108 t 3 As Judge Dillon says, " He can not 
 Ind. 548; Graham v. Nowlin, 54 Ind. change his base after an appeal." Gar- 
 389; Carver v. Carver, 97 Ind. 497; land v. Wholebau, 20 Iowa, 271; Lav- 
 Brink v. Reid, 122 Ind. 257; Feder v . erty v. Woodward, 16 Iowa, 1. Vide, 
 Field, 117 Ind. 386, S. C. 20 N. E. Rep. also, Barlow v. Brock, 25 Iowa, 308; 
 129; Manifold v. Jones, 117 Ind. 212, S. Bishop v. Carter, 29 Iowa, 165; Rob- 
 C. 20 N. E. Rep. 124; Bull v. Coe, 77 inson v. Keith, 25 Iowa, 321; Coonrod 
 Cal. 54; Trigg v. Taylor, 27 Mo. 245; v. Benson, 2 Greene (Iowa), 179. 
 Capital Bank v. Armstrong, 62 Mo. 59; * Bouknight v. Brown, 16 So. Car. 155, 
 Walker v. Owen, 79 Mo. 563; Wheeler 165. See, generally, Lawrence f.Gram- 
 v. American Central Ins. Co., 6 Mo. bling, 13 So. Car. 120; Chamble v. Trib- 
 App. 235. ble, 16 So. Car. 165; Hickenbottom v. 
 
 2 O'Leary v. Iskey, 12 Neb. 136; Delaware, etc., Co., 122 N.Y. 91; Crip- 
 Ophir,etc, Co. v. Carpenter, 6 Nev. 393; pen 7;. Morss, 49 N.Y. 63; Platner v. 
 St. Louis Brokerage Co. v. Bagnell, 76 Platner, 78 N. Y.90; Egan v. Menard, 
 Mo. 554; Blackwellf. Smith.SMo. App. ^2 Minn. 273; Brown v. Minneapolis, 
 43; King v. Rea, 13 Col. 69; Jennings etc., Co., 25 Minn. 461; Spencer v. Lev- 
 v. Bank, 13 Col. 417. ering, S Minn. 461.
 
 |1 -J APPELLATE PROCEDURE. 
 
 of the rule, since an abstract statement of a rule falls far short 
 of conveying a just conception of its practical effect and impor- 
 tance. Such a conception only concrete examples can forcibly 
 and clearly convey. The practical working of the rule in one 
 of its phases is well illustrated by the cases wherein it is held 
 that if parties voluntarily try a case upon the theory that it is 
 a suit in equity, and not an action at law, they must abide by 
 their theory in the higher court. 1 The obverse of this doctrine 
 is exhibited in the cases which declare that a party who sub- 
 mits without objection to a trial of his case by the court can not 
 successfully claim on appeal that he was entitled to a jury trial. 2 
 To the general class of which the cases referred to are types 
 belongs the case wherein it was held that an objection that an 
 account should have been referred to a master comes too late 
 on appeal. 3 Exhibiting another phase of the general principle 
 is the case which decides that an objection to the validity of a 
 rule of court can not be first urged in the appellate court. 4 Still 
 another phase of the principle appears in the case which ad- 
 judges that a party who has treated a contract as valid in the 
 trial court can not impeach it on appeal for illegality. 5 So, it 
 may be said of cases wherein a party is held to the construc- 
 tion of a contract insisted upon by him in the trial court, that 
 they present peculiar phases of the subject and illustrate the 
 rule." In another case the rule was so applied as to preclude a 
 party, who acted upon the theory in the trial court that a deed 
 
 1 Farmer's Bank v. Butterfield, ioo plaint did not state facts showing such 
 
 Ind.229; Ikerd v. Beavers, 106 Ind..^; a trespass. 
 
 Jarboe v. Severin, 112 Ind. 572; Crabs 2 Brown v. Home Savings Bank, 5 
 
 v. Mickle, 5 Ind. 145; Wallace v. Har- Mo. App.i; Adams County v. Hunter, 
 
 ris, 32 Mich. 3S0; Dunbar v. Locke, 62 7S la. 32S, 43 N. W. Rep. 20S. 
 
 \". 11. 442. See, also, Davidson v. Mor- 3 Whittemore v. Fisher (111.), 24 N. 
 
 rison. B6 Ky. 397, 5 S. W. Rep. S71; E. Rep. 636. 
 
 Reynes v. Dumont, 130 U. S. 354. In * Bomar v. Asheville, etc., Co., 30 So. 
 
 ise of Harrison v. Brooklyn, etc., Car. 450. S. C. 9 S. E. Rep. 512. 
 
 Co., 100 N. Y.621, the defendant asked 5 Russell v. Rosenbaum, 24 Xeb. 769, 
 
 judgment in the trial court upon the S. C. 40 X. W. Rep. 2S7. 
 
 ground that the complaint stated facts 6 Metzler v. James, 12 Col. 322, 19 Pac. 
 
 showing an actionable trespass, and it Rep. 8S5; Barrett v. Fisch, 76 la. 553, 
 
 was held on appeal that he was con- 41 X. W. Rep. 310. 
 i from insisting that the com-
 
 HOLDING TO TRIAL COURT THEORIES. 
 
 4i3 
 
 entitled him to the land described in it, from recovering mon-v 
 paid out by him. 1 
 
 § 492. Instances of the Application of the General Doctrine- it 
 
 would be a departure from the principle we are considering to 
 permit parties to treat a case in the trial court as an agreed 
 case, upon that theory secure a decision, and, on appeal, allow 
 them to wage a contest upon a different theory, so that the cases 
 which hold them to the original theory are based upon sound 
 principle. 2 To the same general class are referable the numer 
 ous cases which hold that questions exclusively concerning the 
 making or the failure to make parties can not be first raised on 
 appeal. 3 In harmony with the cases to which reference has 
 been made are the cases which hold that where a party sues in 
 contract when he should have sued in tort, he must stand to his 
 original theory in the higher court. 1 Upon the same principle 
 it is held that a party who affirms the validity of a contract in 
 
 1 Downard v. Hadley, u6Ind. 131, 18 
 N. E. Rep. 457. See, generally, Spick- 
 erman v. McChesney, 111 N. Y. 686, 19 
 N. E. Rep. 266; Fry v. State, 81 Ga. 645, 
 8 S. E. Rep. 308; Withers v. Jack, 79 Cal. 
 21 Pac. Rep. 824; Myers v. Cron, 113 
 N. Y. 60S, 21 N. E. Rep. 9S4; Black v. 
 Washington, 65 Miss. 60, 3 So. Rep. 
 140; Lackey v. Pearson, 101 N. C. 651, 
 8 S. E. Rep. 121; Knowles v. State, 27 
 Texas App. 503, 11 S. W. Rep. 522; 
 Schriber v. Richmond, 73 Wis. 5, 40 N. 
 W. Rep. 644; Eaton v. Rocca, 75 Cal. 
 93, 16 Pac. Rep. 529; Hamilton v. Ames, 
 74 Mich. 29S, 41 X.W. Rep. 930; Devec- 
 mon v. Shaw, 70 Md. 219, 16 Atl. Rep. 
 645; Dorr v. Rohr, S2 Va. 359, S. C. 3 
 Am. St. Rep. 106. 
 
 2 Barr v. Hannibal, etc., Co., 30 Mo. 
 App. 248; Booth v. Cottingham, 126 
 Ind. 431, 26 X. E. Rep. 84. 
 
 3 La Crosse v. Melrose, 22 Wis. 459; 
 Truman v. McCollum, 20 Wis. 360; 
 Collins v. Lightle. 50 Ark. 97, 6 S. W. 
 Rep. 596; Great Western, etc., Co. v. 
 Woodmas, etc.. Co., 12 Col. 46, 20 Pac. 
 
 Rep. 771; Bragg v. Olson, 128 111. 540, 
 21 N. E. Rep. 519; Alexander v. Steele, 
 S4 Ala. 332, 4 So. Rep. 2S1; Towell v. 
 Hollweg, Si Ind. 154; Reederr. Maran 
 da, 66 Ind. 485; Pate v. First Nationa". 
 Bank, 63 Ind. 254; Groves V. Ruby. 24 
 Ind. 418. The rule in this State is that 
 defect of parties is waived if not oppor- 
 tunely presented by answer or demur 
 rer. Atkinson v. Mott. 102 Ind. 431; 
 Mobley f. Slonaker, 48 Ind. 256; Shore 
 v. Taylor, 46 Ind. 345. The demurrer 
 must assign the proper cause or it will 
 not present the question. Wright v, 
 Jordan, 71 Ind. 1; Cleaveland v. Vajen, 
 76 Ind. 146; Giles v. Canary, 99 Ind. 
 116. If a party fails to object to the 
 validity of a contract voidable undet 
 the statute of frauds he can not suc- 
 cessfullv urge the objection on appeal. 
 Hodges v. Rowing, 5S Conn. 12, 7 Law 
 Rep. Anno. S7. 
 
 * Samuels v. Blanchard, 25 Wis. 329; 
 Salisbury v. Howe. S7 N. Y. 12S; Lock- 
 wood v. Quackenbush, 83 N. Y. 607.
 
 414 
 
 APPELLATE PROCEDURE 
 
 the trial court must proceed upon that theory throughout the 
 litigation in the appellate tribunal. 1 So, where a party pleads a 
 judgment simply as an estoppel, he will not be heard on appeal 
 to assert that it is a counter-claim. 2 Asking instructions upon 
 one definite and designated theory precludes the party from 
 assuming a different one. 3 The Court of Appeals of New York 
 has carried the general doctrine very far, for it has held that the 
 question as to the constitutionality of a law can not be made 
 for the first time in that court. 1 
 
 § 493 The Rule as applied to Cases involving Constitutional 
 Questions — The rule as extended by the Court of Appeals of 
 New York in the cases referred to may be made to operate op- 
 pressively, and, in order to prevent this result, it should be 
 held to apply only where the pleadings or proceedings ex- 
 
 1 Ross v. Citizens' Insurance Co., 7 
 Mo. App. 575. See, upon the general 
 question, Nance v. Metcalfe, 19 Mo. 
 App. 183; Corn v. City of Cameron, 19 
 Mo. App. 573; Wright v. Sanderson, 20 
 Mo App. 534; Fell v. Rich Hill Coal 
 Mining Co., 23 Mo. App. 216. 
 
 2 McGill v. Wallace. 22 Mo. 675. 
 See Cooper v. City of Bi^ Rapids, 67 
 Mich. 607, for an example of an unsuc- 
 cessful attempt to shift positions. 
 
 3 Louisville, etc., Co. v. Wood, 113 
 Ind. 544, 564; Doty v. Gillett, 43 Mich. 
 203. 
 
 4 Deleaney v. Brett. 51 N.Y. 78; Vose 
 v. Cockcroft, 44 N. Y. 415. In the case 
 last named the court cited Lee v. Til- 
 lotson, 24 Wend. 337; Van Hook v. 
 Whitlock, 20 Wend. 43; I Ionian v. 
 Brinckerhof, 1 Denio, 184; Caldwell v. 
 Colgate, 7 Barb. 253. Earle, J., said: 
 '•It would bexniite extraordinary it", un- 
 der our system of pleading, with such an 
 answer, the defendants were permitted 
 to show, as a defer.se that the bond given 
 in proceedings under a statute which 
 was unconstitutional and void." In 
 Delanev v Brett, supra it was said by 
 the court that, " The Court ot Appeals is 
 
 strictly an appellate tribunal," and it 
 was also said that: "A review of a 
 question contemplates and involves a 
 previous consideration and examina- 
 tion, and its actual determination im- 
 plies not only that it lias been consid- 
 ered and examined, but that it has in 
 fact been decided ami determined. 
 This view was taken by the Court of 
 Appeals of the above provisions of the 
 code soon after its adoption, in Lake 
 v. Gibson (2 Corns. 188)." There are 
 many analogous cases in the New York 
 reports and we cite a few of them: 
 Coates v. First National Bank of Em- 
 poria, 91 N. Y. 20, 31; Powell v. 
 Waldron, 89 N. Y. 328; Clarke V. Saw- 
 yer, 2 N.Y. 498; Truscott v. King, 6 
 N. Y. 147; Fitch v. Rathbun, 61 N. Y. 
 579; Brookman v. Ilamill, 43 N. Y. 
 554; Jordan v. National Shoe, etc., 
 Bank, 74 \. Y. 467; Muldoon v. Black- 
 well, 84 N. Y. 646. Upon the question 
 toppel we have in our own reports 
 a decision closely resembling that made 
 in Yose v. Cockcroft, supra. Cover- 
 dale v. Alexander, 82 Ind. 503. See, 
 also. McFadden v. Fritz, no Ind. 1.
 
 HOLDING TO TRIAL COURT THEORIES. 415 
 
 pressly or by clear implication concede the constitutionality of 
 the statute. If the course pursued is such as to estop the party, 
 then, clearly enough he should be required to abide by his 
 position in the trial court ; but if there is no estoppel and the 
 question of the validity of the statute arises incidentally, or as 
 a mere matter of detail fairly comprehended under the general 
 line of action pursued by the party, it should not be held that 
 he is concluded, nor should he be held to be concluded where 
 the question of the competency of the court to act at all in the 
 case depends upon the validity of the legislative enactment. 
 If there is no jurisdiction without a valid statute, then, it must 
 follow that the question can not be foreclosed by waiver, or 
 even by consent, since a court can not be made competent by 
 the acts of the parties, or, which is the same thing, can not be 
 invested with jurisdiction of the subject save by law. The 
 doctrine that a party may estop himself from questioning the 
 constitutionality of a statute is a settled one, 1 and it is not here 
 questioned, nor is it encroached upon by holding that where 
 jurisdiction of the subject is wholly dependent upon statute an 
 estoppel can not so operate as to create an authority that can 
 come only from the law-making power. 
 
 § 494. The Theory as Outlined by the Pleadings — The principal 
 theory is that outlined by the pleadings, and the familiar 
 rule is that parties must keep within the issues made by the 
 pleadings. It is clear that a party can not successfully change 
 his theory on appeal where it is embodied or outlined in the 
 pleadings upon which the issues were framed. It is held that 
 if the parties put a definite construction upon the pleadings in 
 the trial court and induce the court to act upon that construction 
 they must adhere to it on appeal. 2 It is often declared that 
 
 1 Daniels v. Tearney, 102 U. S. 415, that even where life is at stake consti- 
 
 Perryman v. Greenville, 51 Ala. 507; tutional rights may be waived. Butler 
 
 Burlington, etc., Co. v. Stewart, 39 la. v. State, 97 Ind. 378; United States v. 
 
 267; People v. Murray, 5 Hill, 46S; Sacramento, 2 Mont. 239, S.C.25 Am. 
 
 State v. Mitchell, 31 Ohio St. 592; Rep. 742. 
 
 Ferguson v. Landram, 1 Bush, 548, S 2 San Diego, etc., Co. v. Neale, SS Cal. 
 
 C. 5 Bush, 230. It is quite well settled 50, 11 Lawyer's Rep. Anno. 604.
 
 4]6 APPELLATE PROCEDURE. 
 
 pleadings will be treated on appeal as the parties elected to 
 treat them in the trial court. 1 
 
 § 495. Requiring adherence to the Opening Statement — A case 
 decided by the Supreme Court of the United States 2 furnishes 
 a striking illustration of the doctrine which we are discussing, 
 and proves the necessity for care in assuming positions in the 
 court of original jurisdiction. In the case referred to counsel 
 in opening the case to the jury stated facts showing that the 
 contract his client was seeking to enforce was an illegal one, 
 the trial court instructed that there could be no recovery and 
 the Supreme Court approved its ruling. 3 It is, we may say in 
 concluding our consideration of this phase of the subject, of 
 very great importance to assume positions in the trial court that 
 will admit of the presentation to the appellate tribunal of all 
 the questions of law fairly within the scope of the facts. 4 
 
 § 496. The doctrine of Election— The rule under discussion is 
 no more than an application of the familiar doctrine of elec- 
 tion which has its foundation in the old adage that " a man can 
 not blow both hot and cold," and hence there is nothing novel 
 in it. 6 The rule is one required by logic and by practical con- 
 
 1 Daniels v. Brodie, 54 Ark. 216, 11 Pleasants v. Fant, 22 Wall. 116; Rail- 
 Law. Rep. Anno. 81; Barndt v. Fred- road Co. v. Fraloff, 100 U. S. 24, 26. 
 erick, 78 Wis. 1, 11 Law. Rep. Anno. * In the case of Wing v. De La Ri- 
 199. 202. We have many cases in our onda, 125 N.Y. 67S, 25 N. E. Rep. 1064, 
 own reports which declare that plead- 1067, the Court of Appeals of New York 
 ings must outline a definite theory, and said: "This shows the theory upon 
 that to the theory adopted the pleader which the case was tried and probably 
 will be held. Toledo, etc., Co. v. Levy, why none of the facts were shown ren- 
 127 Ind. 16S; Shew v. Hews, 126 Ind. dering the leases invalid. It is quite too 
 474; Bingham v. Stage, 123 Ind. 2S1; late now to abandon the theory of the 
 Wagner v. Winton, 122 Ind. 57; May v. trial upon which the leases were put in 
 Reed, 125 Ind. 199; Pearson v. Pearson, evidence,and to take ground which is di- 
 [25 Ind. 341 ; Horn v. Indianapolis, etc., rectly opposite to that theory, and to the 
 Bank, 125 Ind. 381, 3S5; Mescall v. request to find, made by the defendant, 
 Tully, 91 Ind. 96, and cases cited. even though such request was, in its 
 
 2 Oscanyanr.ArmsCo., r i03U.S.26v. entirety, refused. We must still pro- 
 
 3 The case cited above contains a val- ceed upon the theory of the invalidity 
 uable collection of authorities upon the of the leases assumed upon the trial." 
 question of the right of the court to di- 5 Amplified the maxim is. " He is not 
 rect a verdict, among them Merchant's to be heard who alleges things contra- 
 Bank v. State Bank, 10 Wall. 604; dictory to each other."
 
 HOLDING TO TRIAL COURT THEORIES. 417 
 
 siderations, since, without it, inconsistent positions might be as- 
 sumed without an}- other restriction than that of the party's 
 pleasure. But it is something more than a mere logical rule 
 for securing consistency, inasmuch as its principal purpose is to 
 prevent deception, since, without it, parties might mislead their 
 adversaries by assuming one position, in the trial court and an- 
 other on appeal. Nor could there be an orderly administration 
 of justice without such a rule. It does not, therefore, rest solely 
 upon the principle that only questions once decided can be re- 
 viewed on appeal, although that principle gives it strong sup- 
 port. 1 
 
 § 497. Limitations of the Rule — It would be a perversion of the 
 rule requiring parties to abide by the theories acted upon in the 
 trial court to hold that additional arguments or authorities can 
 not be adduced on appeal. Such a holding would produce 
 oppression and injustice and the rule authorizes no such result. 
 Within the scope of the theory fairly and distinctly outlined in 
 the trial court a party may bring to his aid all the arguments 
 and authorities he can command. All that the rule demands 
 is that no new general position and no new and independent 
 issue shall be presented on appeal, so that as long as the party 
 confines himself to the general questions which he presented 
 to the trial court for decision he can not be regarded as trans- 
 gressing the rule, but while this is true it is also true that no 
 new questions (that is, questions not pointed out by the objec- 
 tions made in the trial court) can be successfully urged on 
 appeal. 
 
 § 498. Exceptions to the Rule — It may not be improper to add 
 that the rule that a party must adhere to the theory adopted in 
 the trial court does not preclude him from insisting on appeal 
 that the trial court had no jurisdiction of the subject, for noth- 
 ing that a party can do, short of executing the judgment in 
 some way, can deprive him of the right of objecting to the ju- 
 
 1 In Whitman v. Weller, 39 Ind. 515, peals are taken, and not to decide ques- 
 
 the court said: "This court sits to re- tions which are ^'-esented here for the 
 
 view legal questions which have been first time." See also, Barnard v. Cox, 
 
 •decided bv the courts from which ap- 25 Ind. 251. 
 
 27
 
 418 APPELLATE PROCEDURE. 
 
 risdiction. 1 The theory of the law is that where there is an 
 absolute want of jurisdiction there is no court, and it is too clear 
 for controversy that a party can neither create a court, nor en- 
 dow it with authority over a subject not placed within its juris- 
 diction bv law. The conclusion that the question of jurisdiction 
 remains always open is, it is apparent, implied in the long and 
 well settled doctrine that consent can not confer jurisdiction of 
 the subject. No matter, therefore, what theory a party ad' 
 varices he is at liberty at any step to make the question of ju- 
 risdiction. He may not, indeed, make any question on appeal 
 as to the mere election or choice of remedies not made below, 
 but he may make the question as to the right to entertain juris- 
 diction of the subject. 2 
 
 § 499. The Rule as affecting Jurisdictional Questions — If, how- 
 ever, there is general jurisdiction of the subject although in- 
 complete or defective, the question of want of jurisdiction can 
 not be first made on appeal. Thus, where a complaint con- 
 tains two paragraphs, and the court has jurisdiction of one and 
 not of the other, the question must be presented to the trial 
 court. 3 The presence of authority to proceed is jurisdiction 
 over the subject, 4 and where there is jurisdiction, questions af- 
 fecting only the mode of its acquisition and exercise must, as a 
 general rule, be made in the trial court, so that they can be ap- 
 propriately presented to the appellate court for review. When 
 once acquired, jurisdiction continues, as a general rule, and is 
 
 1 Schuylkill County v. Boyer, 125 Pa. risdiction of particular instances. Jack- 
 St. 226; Metcalf v. Watertown, 12S U. son v. Smith, 120 Ind. 520, 22 N. E. 
 S. 5S6; Cameron v. Hodges, 127 U. S. Rep. 431; Rabun County v. Habersham 
 322; Hegler v. Faulkner, 127 U. S. 482; County, 79 Ga. 248; Quimby v. Boyd, 
 Boys v. Simmons, 72 Ind. 593; State 128 U. S. 488. 
 
 : Whitewater, etc., Co., 8 Ind. 320; 3 Louisville, etc., R. Co. v. Fox, 101 
 
 Strosser v. City of Fort Wayne, 100 Ind. 416. But, on seasonable objection, 
 
 Ind. 443; Webb v. Carr, 78 Ind. 455. evidence tending to prove a cause of 
 
 The decision in Patterson v. Scottish, action not within the jurisdiction of the 
 
 etc., Co., 107 Ind. 497, is not easily re- trial court should be excluded. Wa- 
 
 concilable with principle or authority. bash, etc., Co. v. Rooker, 90 Ind. 581. 
 
 2 It is, however, to be kept in mind 4 Curry v. Miller, 42 Ind. 320; Quarl 
 that there is a distinction between ju- v. Abbett. 102 Ind. 233. 
 
 risdiction of a general subject and ju-
 
 HOLDING TO TRIAL COURT THEORIES. 419 
 
 not lost by subsequent errors, 1 so that no question of loss of 
 jurisdiction can be first made on appeal, if, indeed, it can be 
 successfully made at any time. 
 
 § 500. Special Cases — There is a class of cases which it is not 
 easy to bring under any general rule, but of which it may be 
 said that a failure to object below in an appropriate method 
 precludes the party from objecting on appeal, although the 
 question is in the nature of one of jurisdiction, and relates to 
 the subject-matter. 2 Thus, if a court has jurisdiction in actions 
 of replevin only when the property is situated in the county, 
 the failure to make the point that the property in dispute was 
 not within the county would preclude the party from making it 
 on appeal. 3 Kindred cases will suggest themselves in which, 
 although the jurisdiction of the subject-matter is, in some sense, 
 involved, still, it is not invloved in that sense which entitles a 
 party, or the court of its own motion, at any stage of the pro- 
 ceedings to make the jurisdictional objection. The truth is 
 that there is, as has been suggested, an essential difference be- 
 tween general jurisdiction of the subject and jurisdiction of the 
 
 1 Osborn v. Sutton. ioS Ind. 443; Albert, 78 Ind. 241; Robinson v. 
 Stoddard v. Johnson, 75 Ind. 20, 34; Shatzley, 75 Ind. 461. "But the want 
 Black v. Thomson, 107 Ind. 162. No of jurisdiction because the action is 
 formal entry asserting jurisdiction is local, and has been brought in the 
 essential. Cauldwell v. Curry, 93 Ind. wrong county, and the want of jurisdic- 
 363; Platters. Board, 103 Ind. 360; Carr tion because the court has no power 
 v. State, 103 Ind. 548; Jackson v. State, and authority to adjudicate upon the 
 104 Ind. 516; Pickering v. State, 106 subject involved in the action are two 
 Ind. 228. very different things. In the latter case 
 
 2 It is, perhaps, hardly necessary to it was always and necessarily the rule 
 say that jurisdiction of the person may of law that consent of parties could not 
 be waived, and that very different rules confer jurisdiction for the reason that 
 apply where the question is as to juris- in any event the court was not by law 
 diction of the person from those which deemed competent to be intrusted with 
 prevail where the question relates to the question, and therefore its proceed- 
 the jurisdiction of the subject, or sub- ings would be coram non judice, and 
 ject-matter, as it is called. utterlj' void, and the parties could not 
 
 3 This conclusion seems sound on by agreement give faculties to the court 
 principle and is fairly supported by which the law withheld." Per Frazier, 
 such cases as Grand Rapids, etc., Co. v. J., in Indianapolis, etc., R. Co. v. Solo- 
 Gray, 3S Mich. 461 , Gott v. Brigham, mon, 23 Ind. 534. 
 
 45 Mich. 424. See, generallj'. Cox v.
 
 420 
 
 APPELLATE PROCEDURE. 
 
 subject-matter of a particular action. 1 Thus, jurisdiction of ac- 
 tions to recover possession of real estate may be possessed by 
 circuit courts generally, and yet the circuit court of Adams 
 county may not have jurisdiction of an action to recover pos- 
 session of a tract of land in the county of Wayne. It seems 
 impossible to support the cases which declare that where an 
 action is brought to recover land in a court of general jurisdic- 
 tion the presumption is that the land is within the territorial 
 jurisdiction of the court in which the action is brought, 2 with- 
 out affirming that there is a distinction between the general ju- 
 risdiction of a subject and jurisdiction of the subject-matter, 
 and yet these cases are everywhere regarded as sound law. 
 On the other hand, it is well settled that where the land involved 
 in the particular case is not within the county where the action 
 is brought, the action will not lie because jurisdiction does not 
 exist in the particular instance. 3 In the class of cases last 
 
 1 Jackson v. Smith, 120 Ind. 520. The 
 
 distinction mentioned in the text is sug- 
 I in Indianapolis, etc.. R. Co. v. 
 Solomon, 23 Ind. 534, where it was 
 said: "But where the court was In- 
 law competent to entertain the question 
 involved and was only deprived of ju- 
 risdiction because the action was local, 
 and required to be brought in another 
 county, it was always held that the ac- 
 tion could he waived." 
 
 2 Ragan v. Ilavnes, 10 Ind. 34S; 
 Brownfield v. Weicht, 9 Ind. 394; Wolf 
 
 State, ii Ind. 231; Kinnaman v. 
 Kinnaman, 71 Ind. 417; Hyatl :. Coch- 
 ran, 69 Ind. 436; Godfrey ?'. Godfrey, 
 17 Ind. A; Culph v. Philips, 17 Ind. 209; 
 n v. Anderson, 90 Ind. 93. These 
 are no more than applications to 
 ific instances of the general rule 
 that presumptions an- made in favor of 
 the jurisdiction of superior courts. 
 Shewalter v. Bergman, 123 Ind. 155, 
 undry v. Board, 115 Ind. 234; 
 id 7'. Leggett, 115 Ind. 544; Chapell 
 1 17 Ind. 481. 
 3 New Albany, etc., Co. v. Huff, 19 
 
 Ind. 444; Vail v. Jones, 31 Ind. 467; 
 Loeb v. Mathis, 37 Ind. 306; Ham v. 
 Rogers, 6 Blackf. 559; Sherry r.Winton, 
 
 1 Ind. 96; Dumont v. Lockwood, 7 
 Blackf. 576. Some of the earlier cases 
 carried the doctrine asserted in the 
 cases cited far beyond reason and prin- 
 ciple and held that a suit to enforce 
 specific performance of a contract must 
 he brought in the county in which the 
 land in controversy is situated. Parker 
 v. McAllister, 14 Ind. 12; Vail v. Jones, 
 31 Ind. 467. These decisions are in 
 conflict with Dehart v. Dehart. 15 Ind. 
 167; Coon v. Cook. f> Ind. 268, and are 
 completely overthrown by the later 
 case of Bethell v. Bethell, <;- Ind. 31S, 
 7,2 2. They are in conflict with the doc- 
 trine declared centuries ago in the greal 
 case of William Penn v. Lord Balti- 
 more, 1 Ves. Sr. 444. See, also, Watkins 
 v. Ilolman, 16 Peters, 25; Brown v. P. - 
 mond, 100 Mass. 267; Mitchell v. Bunch, 
 
 2 Paige, Ch. 006; McQuerv v. Gilleland 
 (Ky.), 1: S.W.Rep. 1037, 1 Pomeroy Eq. 
 Juris., § 135, 1 Work's Practice, § 180.
 
 HOLDING TO TRIAL COURT THEORIES. 
 
 421 
 
 mentioned the subject may be within the general jurisdiction 
 of the court, yet there may be no jurisdiction in the particular 
 case, so that it must be true that there is an essential difference 
 between cases where there is no jurisdiction of the subject, that 
 is of the class, and cases where there is not authority over the 
 particular case, but nevertheless jurisdiction of the general 
 subject, or class. 
 
 § 501. Nature of Jurisdictional Question — The confusion and 
 obscurity which exists, and which is so great as to constitute 
 what may not inappropriately be called a legal puzzle, may be 
 cleared away and removed by discriminating between jurisdic- 
 tion of the subject and jurisdiction of the subject-matter of a 
 particular case. This is the key to the situation. The princi- 
 ple that there is jurisdiction of a class and also jurisdiction of a 
 particular subject-matter is a reasonable one, and is recognized 
 in logical treatises. 1 An objection that there is no jurisdiction 
 
 1 The reasoning of the majority in 
 the case of Loeb v. Mathis, 37 Ind. 306, 
 is probably opposed to this view, but 
 the reasoning of Frazier, J., in the dis- 
 senting opinion is far stronger and 
 much better supported. The majority 
 opinion confounds the right to make 
 an objection as to the competency of 
 the court to assume to take any ac- 
 tion at all in cases belonging to a gen- 
 eral class with the right to object to 
 jurisdiction in a particular case. It is 
 undoubtedly true, as has been repeat- 
 edly said, that an objection that there 
 is no jurisdictional capacity whatever 
 may be made at any time, but it by 
 no means follows from this that there 
 is a right, notwithstanding acquies- 
 cence, to object for the first time on ap- 
 peal that a local action is improperly 
 brought. The majority lost sight of 
 the distinction between cases, where 
 the question is as to the right to hold 
 jurisdiction where jurisdiction may be 
 presumed and cases where there can be 
 no such presumption. If it be granted 
 
 that jurisdiction in a court of general 
 jurisdiction may be presumed (and this 
 can not be controverted), then it inevit- 
 ably follows that the presumption con- 
 tinues until countervailing facts are 
 made to appear. The rule, indeed, is that 
 nothing is to be presumed to be out of 
 the jurisdiction of such a court. Hays v. 
 Ford, 55 Ind. 52; Galpin v. Page.iSWall. 
 350,364; Hahn v. Kelly, 34 Cal. 391; 
 Adams v . Jeffries, 12 Ohio, 253, S. C. 
 40 Am. Dec. 477; State v. Lewis, 22 N. 
 J. L. 564; Wallace v. Cox, 71 111. 548; 
 Davis v. Hudson, 29 Minn. 27; Reed v. 
 Vaughan, 15 Mo. 137,141; Butcher v. 
 Bank, 2 Kan. 70, 80; Palmer v. Oakley, 1 
 Doug.(Mich.) 433, S. C.47 Am. Dec. 40. 
 As this is the presumption, it seems quite 
 clear that a party who seeks to take a 
 single case out of a jurisdiction existing 
 over the general class of which it is a 
 member should make his objection in 
 the trial court, since he may well be 
 deemed to rightfully submit his case to 
 a court having authority over the gen- 
 era! subject. It 'would, of course, be
 
 422 ' Vl1 ' PROCEDURE. 
 
 of the subject, that is, of the general class, reaches the compe- 
 U'licv of the court and may be made at any time, since, if the 
 court is not competent to entertain authority over the class, it 
 is, as to that class, as if there were no court. As an illustra- 
 tion of a case where a court is incompetent because of want of 
 authority may be taken the instance of a justice of the peace 
 assuming to exercise jurisdiction in a case of purely equitable 
 cognizance. 1 In such a case it is proper to hold that the ques- 
 tion of jurisdiction may be made in the first instance in the ap- 
 pellate tribunal.- As a case illustrating the rule that where 
 there is general authority over the subject no objection of a ju- 
 risdictional character not in some mode presented to the trial 
 court, may be taken that of a party liable to an action in the 
 county where the wrong was committed voluntarily and with-: 
 out objection submitting it to a trial in a different county. 3 
 
 § 502. Original Objections to Jurisdiction — The question whether 
 upon due and opportune objection the jurisdiction of the trial 
 court over a particular case can be successfully challenged is 
 different, as appears from what has been said, from a question 
 whether the court has any capacity at all to act. So far as 
 concerns the present discussion, the question is important 
 chiefly for its bearing upon the right of a party to interpose 
 an original objection on appeal, since we are here concerned 
 with that right. The presumption of jurisdiction which at- 
 taches in the trial court must, we may say by way of recapit- 
 ulation, continue on appeal unless broken by an objection in 
 
 otherwise where there was no capacity It is difficult, if not impossible, to per- 
 
 to act at all, because no jurisdiction of ceive why the rule should not be the 
 
 the subject was by law conferred upon same where the presumption arises from 
 
 the court. the fact that the law gives the tribunal 
 
 1 Brown ?'. Goble, 97 Ind. 86. jurisdiction over a general class of cases. 
 
 2 It has been held that where the The presumption, whether created by 
 
 te provides that jurisdiction shall the written or the unwritten law, is, in 
 
 Ik- presumed the appellate tribunal all essential respects, the same, and 
 
 will enforce tin- presumption unless it should prevail against collateral attacks 
 
 appears affirmatively that it was impos- ;i^ well as in eases where noquestion was 
 
 siblethat jurisdiction could have existed made in the trial court, 
 
 in the trial court. Bidwell i>. Astor 3 Indianapolis, etc., Co. V. Solomon, 
 
 Mutual Insurance Co.. [6 N. Y. 203. 23 Ind. ^34.
 
 HOLDING TO TRIAL COURT THEORIES. 423 
 
 that court, so that, at last, the question is to be solved by ascer- 
 taining whether the presumption ever did attach. It seems 
 that the just conclusion is that if the particular case is one 
 within the general subject over which jurisdiction is conferred 
 the presumption did attach, but if it is not then the presumption 
 never prevailed. If it never could have prevailed, of course, 
 it could not continue, and the objection may be successfully 
 pressed as an original one on appeal. 
 
 § 503. Jurisdiction of the Subject uot the same thing as Jurisdic- 
 tion of the Particular Case— That there are instances where there 
 is jurisdiction of the general subject, but no jurisdiction of the 
 particular case is quite clear, and yet the difference between 
 jurisdiction of the general subject and jurisdiction of the par- 
 ticular instance has seldom been marked, and still less often 
 discussed. That there is a radical difference between jurisdic- 
 tion of the particular case and jurisdiction of the general sub- 
 ject is shown by the cases referred to in the preceding para 
 graphs. It is also shown in the cases wherein it is held that 
 although a bond is essential to complete jurisdiction on appeal 
 the failure to file the bond does not necessarily deprive the 
 court of jurisdiction, although it may defeat jurisdiction of the 
 particular case if there is a timely and appropriate objection 
 interposed. So, in cases where there is a failure to perfect 
 an appeal in time, there is ordinarily no jurisdiction of the 
 case, but the court may, upon a proper application, grant reliet 
 by exercising its general equity powers. In neither of the 
 cases just mentioned could there be authority to assume con- 
 trol of the case if there were no general jurisdiction of the 
 subject, for where there is no such jurisdiction there is no court, 
 and if no court, there is of course, no officer or tribunal ca- 
 pable of acting in the matter at all. The phrase coram 11011 
 judice does not mean that the person who assumes to be a 
 judge is not a judge but an intruder, or usurper ; on the con- 
 trary, it simply means that he is not a judge in the particular 
 case or class of cases. Thus, if a prosecution for a violation 
 of a statute of the United States should be instituted in a State 
 court, as to that case, or as to the class of which it is a mem- 
 ber, the proceedings would be coram 11011 judice, but the judges
 
 424 APPELLATE PROCEDURE. 
 
 of the State courts would not be intruders or usurpers ; they 
 would simply be without jurisdiction in the particular class of 
 case. Sc where an appeal is not taken within the time pre- 
 scribed by law, there is no jurisdiction of the particular appeal 
 unless peculiar facts exist authorizing the court to exercise its 
 ' general inherent power to prevent injustice resulting from ac- 
 cident or fraud, but as the inherent power may be exercised in 
 the proper case there is, in a general sense, jurisdiction of the 
 subject. 1 There is always jurisdiction of the abstract subject 
 of appeals, but there is not always jurisdiction of particular 
 cases. It is quite safe to conclude that there may be instances 
 where the jurisdiction does not relate to the person but to the 
 subject (and to the subject directly and materially), in which 
 there is authority over a general subject or class, yet no juris- 
 diction over a particular member of the class. 2 The difference 
 between jurisdiction of a general subject, or class, and juris- 
 diction of a particular case is often of importance in appellate 
 procedure, for there are many cases where an objection not 
 made below to the jurisdiction of the particular case will not 
 prevail on appeal, but there are no cases where there is an ut- 
 ter lack of jurisdiction of the general subject or class where the 
 objection may not be successfully made at any stage of the 
 proceedings. 
 
 1 General jurisdiction of the subject ment declares where the venue shall be 
 
 of appeals is very different from juris- laid. Furnival :■. Stringer, supra; 
 
 diction of a special instance. So is ju- Fineux v. Hovenden, Croke Eliz. 664, 
 
 risdiction of a class of actions different Coke's Litt. 126 a, Hargrave's note, 5 
 
 from jurisdiction of a particular action. Rep. 37, Dyer, 367; Crow v. Edwards, 
 
 '' We think that the decisions when Hob. 5/'. It is evident that if there was 
 
 closely analyzed will be found to recog- no jurisdiction of the general subject 
 
 nize the distinction we have endeavored this conclusion could not be sound, but 
 
 to establish. Furnival v. Stronger, 1 it is sound because such jurisdiction 
 
 Bing.N.C. 68; AndrewesT'. Elliott, 6 E. exists, although if objection had been 
 
 >S: B. 33S; Tverman v. Smith, 6 E.&B. made it could not have been exercised 
 
 719,724; Lawrence 7\ Wilcock, 11 A. in the particular case. The general 
 
 &E.941; Vansittart v. Taylor, 4 E.& jurisdiction of a class may exist and 
 
 B. 910. The principle we have asserted yet not cover a particular member of 
 
 is declared in some of the earliest re- the class. "By subject-matter is meant 
 
 ported cases. It is asserted in the cases the abstract thing and not the particu- 
 
 which hold that an action brought in lar case." Yates v. Lansing, 5 John-. 
 
 the wrong county may be maintained 2S2; State v. Wolever, 127 Ind. 306, 
 
 where there is a waiver of objection to 315. 
 jurisdiction although an act of Parlia-
 
 CHAPTER XXV. 
 
 AUXILIARY PROCEEDINGS. 
 
 § 504. Auxiliary power of appellate tri- 
 bunals. 
 1505. The nature of auxiliary jurisdic- 
 tion. 
 
 506. The principal classes of auxili- 
 
 ary proceedings. 
 
 507. Appeal must be pending to au- 
 
 thorize the exercise of the aux- 
 iliary jurisdiction — G e n e r a 1 
 rule. 
 
 508. Exceptions to the rule requiring 
 
 the transcript to be filed before 
 asking assistance. 
 
 509. The application for assistance. 
 
 510. Statutory provisions — ■ Injunc- 
 
 tions. 
 
 511. Statutory provisions — Manda- 
 
 mus and Prohibition. 
 
 512. Injunctions. 
 
 513. Injunctions — Matters of prac- 
 
 tice. 
 
 514. Mandamus — Power to issue. 
 
 515. Mandamus — Cases in which it 
 
 will not issue. 
 
 516. Mandamus — Cases in which it 
 
 will issue. 
 
 517. Mandamus— Matters of practice. 
 51S. Prohibition. 
 
 § 504. Auxiliary Power of Appellate Tribunals— As we have re- 
 peatedly said, appellate jurisdiction is essentially and primarily 
 one of review, and, while it is true that both appellate and orig- 
 inal jurisdiction may reside in the same tribunal, still, the two 
 kinds of jurisdiction are radically different and distinct. In- 
 vesting a tribunal with both original and appellate jurisdiction 
 does not blend the two species of jurisdiction, for they are so 
 intrinsically unlike that they can not be harmoniously combined. 
 But, while the two kinds of jurisdiction are distinct, yet juris- 
 diction in its nature original must necessarily reside in all ap- 
 pellate tribunals of high rank, since, without such jurisdiction, 
 they could not effectively carry out the purpose for which they 
 were created. There must, therefore, dwell in all such tribu- 
 nals a species of jurisdiction which may be denominated auxili- 
 ary. This auxiliary jurisdiction is an incidental attribute, and 
 inheres in all high courts as a necessary element of their exist- 
 ence. A power essential to the existence of a high court of 
 justice and necessary to enable it to accomplish the great ob- 
 ject of its existence comes into being with the court itself. 
 
 (425)
 
 APPELLATE PROCEDURE. 
 
 Such a court must have power to cause its judgments to be 
 carried into effect, otherwise its judgments would be mere empty 
 declarations. So, it must have power to cause records to be 
 truly presented to it, and so, too, it must have power to protect 
 its own records and maintain its own existence. These, and 
 other powers, are inherent, and hence are implied in the very 
 act of creating an appellate tribunal and investing it with the 
 pow r er to review the decisions and judgments of the trial courts 
 of the commonwealth. A court without such powers would be 
 little else than a court in name. 
 
 § 505. The nature of Auxiliary Jurisdiction — Auxiliary jurisdic- 
 tion, under a system such as ours, is essentially an incident, or 
 appendage, of the power to review judgments and decrees pro- 
 nounced by courts of original jurisdiction. It is not, in the 
 strict sense, in any respect original. It does not exist because 
 of any right to pronounce original judgments, but it exists be- 
 cause it is necessary to enable the court to properly conduct its 
 business, make its judgments effective, maintain its independ- 
 ence and administer justice. 
 
 § 506. The principal Classes of Auxiliary Proceedings — One of the 
 
 most important of the classes of auxiliary proceedings is that 
 to which the name certiorari is usually given. The term " cer- 
 tiorari" as generally employed in appellate procedure, means 
 an order or writ issued to a trial court, or an officer, command- 
 ing the correction of a record, or the proper certification of it 
 to the appellate tribunal. But we have elsewhere fully dis- 
 cussed the proceeding by certiorari? and we need do no more 
 here than mention the proceeding. The remaining classes of 
 auxiliary proceedings which are of sufficient practical import- 
 ance to require consideration are injunction, mandamus and 
 prohibition. It is probably true that in very rare instances, 
 writs of injunction, writs of mandamus, and writs of prohibi- 
 tion may issue in a proceeding strictly original, but we are not 
 to treat of them as original writs. Our discussion will be con- 
 fined to such writs as are employed as assistants or auxiliaries 
 
 1 AnU . \ \ 216, j 17. j in. 219.
 
 AUXILIARY PROCEEDINGS. 427 
 
 of the power to review judgments or decrees pronounced by 
 courts of original jurisdiction. 
 
 § 507. Appeal must be Pending to authorize the exercise of the 
 Auxiliary Jurisdiction — General Rule — The general rule is that 
 an appeal must be pending or the auxiliary jurisdiction of the 
 appellate tribunal can not be successfully invoked. This rule 
 rests on the principle that until the case reaches the appellate 
 tribunal it has no power to make any order or pronounce any 
 judgment concerning the controversy. It further results from 
 this principle that a party must do all that is in his power to 
 perfect an appeal before asking aid of the appellate tribunal. 
 If it is within his power to file the transcript, assign errors and 
 issue notice, he must do so before asking the court to assist him 
 in securing an appeal. After he has done all that he can do 
 unassisted to bring the case into the appellate tribunal, that tri- 
 bunal will help him by removing obstacles wrongfully placed 
 in his w r ay and by compelling courts and officers to perform the 
 duties enjoined by law. 1 Until the part}- has done all that he 
 can do unassisted, there is no ground upon which the extraor- 
 dinary powers of the court can be invoked for his relief. It is 
 evident that the rule stated is the only defensible and practical 
 one, for if a party were allowed to invoke the assistance of the 
 court before filing a transcript or taking other steps to perfect 
 an appeal he might secure extraordinary aid in a case where 
 general jurisdiction might never attach. 
 
 § 508. Exceptions to the Rule requiring Transcript to be filed be- 
 fore asking Assistance — It is obvious that there must necessarily 
 be exceptions to the rule that the transcript must be filed in the 
 appellate tribunal before its assistance in perfecting the appeal 
 can be invoked, for if it were otherwise, it would be in the 
 power of the trial court to prevent an appeal, and that it has 
 
 1 There are few, if any, reported cases him in perfecting his appeal and secur- 
 
 upon this subject, but the practice has ing his rights. He must secure such a 
 
 always been, so far as we are aware, to transcript as he can obtain and file it. 
 
 require a partv to do all that he can to then ask the needed assistance. See 
 
 perfect his appeal. It is only when he the next paragraph for a consideration 
 
 has done this that the court will aid of exceptional cases.
 
 128 APPELLATE PROCEDURE. 
 
 no right to do. Where a trial judge refuses to take such steps 
 as are necessary to enable the appellant to secure an appeal, 
 the appellate tribunal will grant him relief if he has been dili- 
 gent and is free from fault. It may be in rare cases that no 
 transcript can be obtained because of the wrongful conduct of 
 a judge or a ministerial officer, and in such cases the appellant 
 may apply to the appellate tribunal for relief without tiling a 
 transcript, but he must show in his application that the failure 
 to secure a transcript was not owing to any fault on his part. 
 Where a transcript can be secured, even though it may be im- 
 perfect and incomplete, it should be obtained and filed. 
 
 § 509. The Application for Assistance — The party who asks as- 
 sistance to enable him to perfect an appeal must make a clear 
 and strong case. This is so because he asks that an extraordi- 
 nary remedy be applied for his benefit and that public officers 
 be coerced into a performance of duty. 1 It is necessary that 
 the facts should be clearly and fully set forth in the petition, 
 that the allegations should show inexcusable fault on the part 
 of those against whom the petition is directed, and that the pe- 
 titioner has been diligent and is free from fault. The appellate 
 courts grant extraordinary relief with caution and only in clear 
 cases, so that it is always necessary to make a case strong and 
 full in all essential particulars. With respect to injunctions 
 this is especially true as will appear from what is said in the 
 paragraphs that follow. 
 
 § 510. Statutory provisions — Injunctions — The provisions of the 
 code respecting the granting of injunctions are, in effect, noth- 
 ing more than the declaration of a general principle of law. 2 
 
 1 H<j must overcome the presumption 2 R. S. 1S81, § 1 147. The statute pro- 
 
 thal the officers have performed their du- vides that "Restraining orders and in- 
 
 ties. It isa rudimental rule that onewho junctions may be granted by the Su- 
 
 charges an officer with a breach of duty, preme Court in term time, when nec- 
 
 either negligent or wilful, must affirma- essary for the due exercise of the 
 
 lively and clearly show such facts as jurisdiction and powers of such court, 
 
 rebul the presumption that the onieer or by any judge thereof in vacation or 
 
 did his duty. Jackson School Tp. v. recess." There can be little doubt that 
 
 Farlow, 75 Ind. 11S, and authorities under this provision the right to an in- 
 junction exists only in cases where it
 
 AUXILIARY PROCEEDINGS. 429 
 
 They do not confer original jurisdiction but simply declare that 
 the court may grant an injunction in aid of its appellate power 
 and jurisdiction. It is evident, therefore, that injunctions or 
 restraining orders can only be granted in cases where there 
 is a pending appeal, and where such relief is essential to a due 
 and effective exercise of appellate jurisdiction. 
 
 §511. Statutory provisions — Mandamus and Prohibition — The 
 
 statute does not authorize either of the appellate courts to en- 
 tertain original jurisdiction in mandamus or prohibition pro- 
 ceedings, but, on the contrary, carefully limits their power to 
 issue writs of mandamus or prohibition to cases where such 
 writs are essential to a due and effective exercise of appellate 
 jurisdiction. 1 But, notwithstanding the limitation of the statute, 
 there must be cases where a writ of mandamus or prohibition 
 will issue, although at the time it is issued there is no pending 
 appeal. In a former paragraph of this chapter we have given 
 reasons for this conclusion. 2 Ordinarily, however, neither a 
 writ of mandamus nor a writ of prohibition can issue unless 
 there is an appeal calling into active exercise the appellate ju- 
 risdiction. That exceptions to this general rule do exist we 
 have already affirmed, 3 but these exceptions by no means prove 
 that the general rule does not exist. 
 
 § 512. Injunctions — It is no doubt true that the appellate tri- 
 bunals of a State are invested with power to issue injunctions 
 when necessary to enable them to fully and effectively exercise 
 appellate jurisdiction. 4 The only question that can arise is as 
 
 is clearly made to appear that the writ s Ante, Chapter II, "Appellate Tri- 
 
 is required to enable the court to effec- bunals." 
 
 tively perform its functions as a court * In the case of Hicks v. Michael, 15 
 
 of review. Cal. 107, 1 14, the power of the appellate 
 
 'The statutory provision is this: tribunal to issue an injunction pending 
 
 " Writs of mandate and prohibition an appeal was denied, but the question 
 
 may issue from the Supreme and Cir- received very little consideration. All 
 
 cuit Courts of this State, but such writs that was said upon the subject was this: 
 
 shall issue from the Supreme Court "An examination of the question has 
 
 only when necessary for the exercise satisfied us that we had no authority to 
 
 of its functions and powers." R. S. issue the writ. No such authority ha* 
 
 188 1, § 1167. been given us by the legislature, and we 
 
 2 Ante, §§ 504, 505. regard the matter as one involving a
 
 430 
 
 APPELLATE PROCEDURE. 
 
 to what matters are embraced within the appellate jurisdiction, 
 
 so that the inquiry goes to the extent and scope of the power 
 rather than to the existence of the power itself. Where there 
 is an attempt to disobey an order or judgment made or given 
 in a pending appeal the power of the court to prevent disobed- 
 ience by an injunction is clear, but where there is no such order 
 or judgment it is difficult to set bounds to the power. It is en- 
 tirely safe to affirm that a writ of injunction can not be issued 
 save in the exercise of some function of appellate jurisdiction. 
 Original jurisdiction can only be exercised by the courts to 
 which original jurisdiction is confided by the constitution or the 
 laws. 1 Mischievous and evil results would inevitably follow 
 
 mere question of practice, and the leg- 
 islature as having full and entire con- 
 trol of the subject." We venture to say 
 that this is a narrower view of the sub- 
 ject than is warranted by principle or 
 authority. The fundamental principle 
 that all high courts of justice possess 
 inherent powers was, as we believe, 
 overlooked. We do not believe that it 
 is necessary to specifically enumerate 
 the powers of a judicial tribunal of the 
 highest rank, since many powers are 
 implied in the very act of establishing 
 such a court. A sounder view of the 
 general subject is that of the Supreme 
 Court of Ohio in the case of Kent v. 
 M abaft v, 2 Ohio St. 498, where Thur- 
 man, J., speaking for the court, said: 
 "That we can allow an injunction, in a 
 case pending in this court, upon an ap- 
 peal is very clear. A decree may be 
 the very object of the suit — the final 
 decree sought — and so a provisional 
 injunction, during the pendency of the 
 suit, may be necessary for the purposes 
 of justice. The power to allow these is a 
 part of the appellate jurisdiction, the 
 grant of which is authorized by the con- 
 stitution, and has been made by the law. 
 But to allow an injunction in a suitpend- 
 ing in another court, would be an exer 
 cise of original and not of appellate ju- 
 
 risdiction. Now, the original jurisdic- 
 tion conferred upon this court by the 
 constitution is limited to quo warranto 
 mandamus, habeas corpus and proce- 
 dendo. Art. IV, § 2. This is the only 
 original jurisdiction granted by that 
 instrument, and it would be wholly in- 
 consistent with, and, in a great measure, 
 destructive of the judicial system it or- 
 dains, to suppose that this original ju- 
 risdiction can be enlarged by law. It 
 is true there is no express prohibition 
 against it, but none was necessary. We 
 can exercise only such powers as the 
 constitution itself confers, or authorizes 
 the legislature to grant. We can derive 
 no power elsewhere. It follows, that, 
 to negative the existence of a power it 
 is not necessary to show that it is for- 
 bidden by the constitution. It is suffi- 
 cient that that instrument neither di- 
 rectly nor indirectly confers it." 
 
 1 Ex parte Logan Branch, etc., Bank, 
 1 Ohio St. 433; Merrill v. Lake, 16 Ohio, 
 373; Campbell v. Campbell, 22 111. 664; 
 Bryant v. People, 71 111. 32. In Camp- 
 bell v. Campbell, supra, the court said : 
 " Now unless it can be shown that orig- 
 inal applications for injunction is an ex- 
 ercise of the appellate jurisdiction of this 
 court we can not act. That it is not 
 such an exercise no one will deny.
 
 A UXILIARY PROCEEDINGS. 
 
 431 
 
 from a blending of appellate and original jurisdiction, 1 since 
 the machinery of the appellate and trial courts is of such a 
 radically different character. It is with reason, therefore, that 
 the appellate tribunals are reluctant to exercise jurisdiction that 
 is in its nature original. 3 Sound principle, as well as wise pol- 
 icy, demands that these independent jurisdictions, for such they 
 are, be kept separate, for deplorable consequences must, of ne- 
 cessity, result from blending them. The power to review is in 
 its nature different from the power to originally try and decide, 
 and only evil can flow from an attempt to break down the bar- 
 rier which separates them. Such an attempt can only be arbi- 
 trary since there is no principle upon which a union of the two 
 jurisdictions can be effected. Our court has, as we believe, 
 gone counter to true principle in holding, as it has, that an in- 
 junction may be granted to prevent a party from entering a 
 
 Emphatically this is an appellate court 
 only, having original jurisdiction in a 
 few specified cases." Some of the 
 courts hold that even where the consti- 
 tution confers original concurrent ju- 
 risdiction that whether such jurisdiction 
 shall or shall not be exercised is a mat- 
 ter to be determined by the court in the 
 exercise of a sound discretion. Com- 
 monwealth v. Smith, 4 Binney, 117; 
 State v. Stewart, 32 Mo. 379. In 
 every instance which has come to our 
 notice the courts have declined to exer- 
 cise original jurisdiction unless the 
 duty to exercise it was imperative. 
 State v. Lawrence, 38 Mo. 535; State 
 v. Vail, 53 Mo. 97, 107. See, also, Fos- 
 ter v. State, 41 Mo. 61; Vail r'.Dining, 
 44 Mo. 210. 
 
 1 Since the text was written the sub- 
 ject has received consideration from 
 the Indiana Appellate Court. In the 
 case of Sheeks v. Fillior, 29 N. E. Rep. 
 443; that court decided that injunction 
 may be awarded in aid of the appellate 
 jurisdiction but not in an original pro- 
 ceeding. It was said, in the course of 
 the opinion, that: "An authority to 
 issue injunctions is ancillary to our ap- 
 
 pellate jurisdiction. We may exercise 
 such authority to preserve the rights 
 involved in a cause pending on appeal." 
 2 In Wisconsin the constitution in- 
 vests the Supreme Court with original 
 jurisdiction in specified cases, but the 
 court has done all in its power to limit 
 the constitutional provision. In At- 
 torney General v. Railroad Companies, 
 35 Wis. 425, 517, the subject is discussed 
 with vigor and ability, and it was said, 
 in the course of the opinion, that, " The 
 grant of original jurisdiction is one en- 
 tire thing, given in one general policy, 
 for one general purpose, though it may 
 have many objects and many modes of 
 execution. So it is of the appellate 
 power. So it is of the superintending 
 control. These are three independent 
 and distinct grants of jurisdiction, each 
 compact and congruous in itself, each a 
 uniform group of analogous remedies, 
 though to be exercised in several ways, 
 by several writs in legal and equitable 
 proceedings, on many objects in great 
 variety of detail." See, also, Attorney 
 General v. Blossom, 1 Wis. 317; Attor- 
 ney General v. City of Eau Claire, 37 
 Wis. 400, 443.
 
 432 APPELLATE PROCEDURE. 
 
 public office to which he was adjudged to be entitled by the 
 judgment of the trial court. 1 It is difficult to conceive upon 
 what principle such a ruling can be said to be made in the ex- 
 ercise of appellate jurisdiction, since whether a party shall or 
 shall not be inducted into office is an original question. 
 But since the decision referred to was made injunctions have 
 been occasionally granted to maintain the status quo as it ex- 
 isted at the time the appeal was taken. The power has, how- 
 ever, been sparingly exercised and an injunction awarded only 
 in unusual cases. A strong case, fully exhibited, has been 
 uniformly required. More applications by far have been de- 
 nied than granted. 
 
 § 513. Injunctions — Matters of Practice — The statute makes no 
 provision as to the procedure in obtaining a restraining order 
 or injunction on appeal, but the practice is substantially that 
 prescribed for the trial court. A verified petition is required. 
 Notice must be given or such an emergency shown as dispenses 
 with notice. A bond or undertaking must also be filed. 
 
 §514. Mandamus — Power to Issue — The general "superintend- 
 ing control" of appellate tribunals, as it is called by an able 
 judge, 2 empowers them to coerce the performance of duties im- 
 posed by law upon judicial and ministerial officers. It is man- 
 ifest that some supreme controlling and supervisory power must 
 be lodged in the courts of last resort, for otherwise trial judges 
 or ministerial officers might completely defeat the right of ap- 
 peal. This "superintending control " is not an independent 
 and distinct power, but, on the contrary, is an incident of su- 
 
 1 Leech v. State, 78 Ind. 570, 579. In by this court. In many cases in this 
 
 the case cited, Worden, J., speaking for court restraining orders have been is- 
 
 the majority of the court, said: "This sued to prevent advantage being taken 
 
 statute we construe to mean that re- of a judgment below until the deter- 
 
 straining orders, etc., may be issued by mination of the cause here, though the 
 
 this court, or bv any judge thereof in reports may not show them, because in 
 
 vacation, whenever it maybe necessary the opinions pronounced no notice has 
 
 and proper, in the exercise of its ap- been taken of them." 
 
 pellate jurisdiction to preserve the 2 Ryan, C. J., in Attorney General r. 
 
 rights of the parties to a cause pending Railroad Companies, 35 Wis. 425, 517. 
 before it, until the decision of the cause
 
 AUXILIARY PROCEEDINGS. 
 
 433 
 
 perior appellate jurisdiction. 1 It is not a power to be exerted 
 by appellate tribunals in the exercise of original jurisdiction 
 except where the law commands that it shall be so exerted. 
 But while it is true that the power is an attribute of appellate 
 jurisdiction it is, nevertheless, true that it may be exercised, 
 although no appeal is actually pending. The decision of pend- 
 ing appeals is by no means all there is of appellate jurisdiction, 
 for appellate jurisdiction extends much farther ; it includes the 
 power to remove obstacles to appeals, the power to assist a 
 party to perfect an appeal, and the power to compel decisions 
 by inferior tribunals. 
 
 § 515. Mandamus— Cases in which it will not issue— Where the 
 proceeding is an original one and is not in any way connected 
 with the right of appeal, or the exercise of appellate jurisdic- 
 tion, mandamus will not be awarded. This general doctrine is 
 illustrated by a case in which it was held that the writ would 
 -not issue to compel the trial court to proceed with a case in 
 which a decree forfeiting corporate franchises was sought. 2 
 
 this high judicial writ. It not only lies 
 to ministerial, but to judicial officers. 
 In the former case it contains a man- 
 date to do a specific act, but in the lat- 
 ter only to adjudicate, to exercise a dis- 
 cretion upon a particular subject." See, 
 also, Attorney General v. Boston, 123 
 Mass. 460, 472; Chase v. Blackstone, 
 etc., Co., 10 Pick. 244, 246; Carpenter. 
 v. Countv Commissioners, 21 Pick. 258. 
 2 State v. Biddle, 36 Ind. 13S. It is 
 to be said of the case cited that, while 
 the reasoning of the court in the 
 main is sound, it is not altogether 
 clear that there was not error in apply- 
 ing the rule declared. The rule was 
 correctly asserted, but it is not so clear 
 that it was not misapplied. This we 
 say because we think it settled that par- 
 ties have a right to a decision, and the 
 refusal to decide is an obstacle to an 
 appeal which the appellate tribunal may 
 remove. The question in the case cited 
 was, however, as to the right to compel 
 
 1 The authorities fully support the 
 ■doctrine that the high courts of justice 
 possess, as an inherent power, the gen- 
 eral superintending control of inferior 
 tribunals. The common law fully rec- 
 ognized the principle. 3 Blackst. Com., 
 no. Queen v. Eastern Counties Ry. 
 Co., 10 Ad. & Ell. 531, 547. In Strong's 
 Case, 20 Pick. 484, 495, the doctrine 
 was admirably stated by Morton, J. 
 Speaking for the court he said: "In 
 every well constituted government the 
 highest judicial authority must neces- 
 sarily have a supervisory power over 
 .all inferior or subordinate tribunals, 
 magistrates and others exercising pub- 
 lic authority. If they commit errors, it 
 will correct them. If they refuse to 
 perform their duty it will compel them. 
 In the former case by writ of error, in 
 the latter by mandamus. And gener- 
 ally in all cases of omissions or mis- 
 takes, where there is no other adequate 
 specific remedy, resort may be had to 
 
 28
 
 434 
 
 APPELLATE PROCEDl Kl. 
 
 Another illustrative case is that wherein an application was 
 unsuccessfully made by an attorney, who had been disbarred 
 by the judgment of the trial court, for a writ of mandamus to 
 compel the trial court to restore him to the place formerly held 
 by him as a member of its bar. 1 Mandamus will not lie to cor- 
 rect an error in a decision or judgment of a judicial tribunal ; 
 the remedy for the review and correction of erroneous decisions 
 
 the trial court to proceed after a super- 
 is had been issued in a dependent 
 proceeding. In the course of the opin- 
 ion the court said: " But so far as this 
 court is concerned, the power to award 
 the writ is confined, as we have seen, to 
 those cases where it is necessary in the 
 appropriate discharge of its duties as 
 an appellate court, such, for instance, 
 as to compel a judge to sign a bill of 
 exceptions, or to carry out instructions 
 given by the court with regard to fur- 
 ther proceedings in a cause remanded 
 by this court, etc. The case at bar 
 seems to be an independent proceeding, 
 not in any way necessary to a discharge 
 of the functions of this court. We are, 
 therefore, of the opinion that we have 
 no jurisdiction or power to award the 
 writ in this case." In Cluck v. State, 
 40 Ind. 263, the court asserted a general 
 principle applicable here, although there 
 addressed to a different proceeding. It 
 was said by the court: "This court 
 possesses no original jurisdiction. This 
 court acts alone upon the record as made 
 in the inferior court, and as certified to us 
 in the manner prescribed by law." See, 
 also, Whittem v. State, 36 Ind. 196. It 
 is, however, to be borne in mind that ap- 
 pellate jurisdiction covers a much wider 
 field than some of the expressions used 
 in the cases referred to indicate. What- 
 ever powers lie within that field may 
 be rightfully exercised, although there 
 ma}' be no pending appeal. Mandamus 
 is ordinarily an original remedy, and 
 as such it is to he awarded and applied 
 
 by courts of original jurisdiction, except 
 where it is a necessary adjunct of ap- 
 pellate jurisdiction. Daniel V. County 
 of Warren, 1 Bibb. 496; King v. Hamp- 
 ton, 3 Ilayw. (Tenn.), 59; Cowell v. 
 Buckelew, 14 Cal. 640; Howell v. 
 Crutchfield, Hemp. 99; Westbrooks v. 
 Wicks, 36 la. 3S2; Whitefield v. Greer, 
 3 Baxt. 78. See, generally, Common- 
 wealth v. Wickersham, 90 Pa. St. 311; 
 Hinkle v. Ball, 34 Ark. 177; State v. 
 Supervisors, 3S Wis. 554; State v. 
 Breese, 15 Kan. 123; State v. County 
 Court, etc., 64 Mo. 170. The solution 
 of the question whether the appellate 
 tribunal can award a writ of mandamus 
 is reached when it is satisfactorily de- 
 termined that the award of the writ is 
 a proper adjunct or incident of appel- 
 late jurisdiction. It may be said, in a 
 general way, that if the writ is neces- 
 sary to enable a party to perfect an ap- 
 peal, where there is a clear right to ap- 
 peal appropriately asserted, or to carry 
 into execution an order or judgment of 
 the appellate tribunal, the power to 
 award the writ may properly be regard- 
 ed as an adjunct or appendage of the 
 jurisdiction of the appellate tribunal. 
 
 1 Walls v. Palmer, 64 Ind. 493. In 
 the case cited it was held that man 
 damus was an appropriate remedy 
 in the court of original jurisdiction, hut 
 that the writ could not be awarded in 
 such a case by the Supreme Court tor 
 the reason that it could not exercise 
 original jurisdiction.
 
 AUXILIARY PROCEEDINGS. 
 
 435 
 
 and judgments is by writ of error or by appeal. 1 Action may 
 be coerced by mandamus, but the decision will not be dictated 
 by the appellate tribunal. 2 The exercise of a discretionary 
 power may be compelled by mandamus, that is, the tribunal 
 may be put in motion, but the exercise of the power will not be 
 controlled. The inferior tribunal will be commanded to act, 
 but it will not be commanded to make or refrain from making 
 a particular decision. 3 Mandamus will not lie to compel the 
 granting of a new trial, 4 for an erroneous denial of a new trial 
 is a wrong to be corrected on appeal. 5 
 
 1 Rex v. Justices of Monmouth, 7 
 Dowl. & Ry. 334; Queen v. Lord's 
 Commissioners, etc., 10 A. & E. 179; 
 Queen v. Lord Steward of Old Manor 
 Hall, 10 A. & E. 248; Ex parte Loring, 
 94 U. S. 418; Ex parte Perry, 102 U. 
 S. 183; Ex parte Parker, 120 U. S. 737; 
 Ex parte Morgan, 114 U. S. 174. It has 
 been held that a party may move for 
 judgment against himself, and upon the 
 refusal of the court to render it obtain 
 a writ of mandamus. Fish v. Weath- 
 erwax, 2 Johns. Cases, 215. 
 
 2 Ex parte Railway Co., 101 U S. 
 711, 720; Ex parte Brown, 116 U. S. 
 401; Decatur -'.Paulding, 14 Pet. 497, 
 499; United States v. Guthrie, 17 How. 
 284; United States v. Edwards, etc., 
 Commissioners, 5 Wall. 563; Litchfield 
 v. Richards Register, etc., 9 Wall. 575, 
 577; Carrick v. Lamar, 116 U. S. 423; 
 State i'. Board, 45 Ind. 501; State v. 
 Demaree, So Ind. 519; Ex parte Bost- 
 wick, 1 Cow. 143; People v. Judges, 2 
 Johns. Cases, 68. 
 
 3 State v. Board, 63 Ind. 497; Mitchell 
 v. Wiles, 59 Ind. 364; Holliday v. Hen- 
 derson, 67 Ind. 103; Burnett v. Trus- 
 tees, 50 Ind. 251; State v. Norton, 20 
 Kan. 506. 
 
 4 Ex parte Smyth, 3 A. & E. 319, 
 722; State v. Watts, 8 La. (O. S.) 76; 
 Ex parte Baily, 2 Cowen, 479. 
 
 5 This is nothing more than a particu- 
 lar application of the settled general 
 
 principle that erroneous decisions can 
 not be reviewed or corrected in an ac- 
 tion brought to secure a writ of manda- 
 mus. The doctrine is illustrated and 
 enforced by many decisions, for the 
 question has been presented in many 
 phases and in a great variety of cases. 
 Ex parte Coster, 7 Cow. 523; Thomas 
 :'. His Creditors, 1 Har. (N. J.) 272; 
 Respublica v. Clarkson, 1 Yeates (2d 
 ed.), 46; Judges of Oneida Common 
 Pleas v. People, 18 Wend. 79; People 
 v. Superior Court, 19 Wend. 68; Rex v. 
 Conyers, 8 Q^ B. 981; Wilkins v. 
 Mitchell, 3 Salk. 229. For an able dis- 
 cussion of the subject see the opinion in 
 Ex parte Morgan, 114 U. S. 174. See, 
 also, Ex parte Hayes (Ala.), 9 So. Rep. 
 156; Ex parte Hum (Ala.), 9 So. Rep. 
 515; Burt v. Reilly, 82 Mich. 251, 46 
 N. W. Rep. 380; Tomkin v. Harris, 90 
 Cal. 201, 27 Pac. Rep. 202. Mandamus 
 will not lie to compel a court to resume 
 jurisdiction of a case dismissed by it. 
 People v. Garnett, 130 111. 340, 23 N. E. 
 Rep. 331; State v. Judges, etc., 41 La. 
 Ann. 1012, 6 So. Rep. S04. It is prob- 
 ably true that the rule as to courts of 
 limited jurisdiction, such as justices of 
 the peace, count}' commissioners and 
 the like, is somewhat different from 
 that which prevails where the decisions 
 and rulings of courts of general superior 
 jurisdiction are involved. State v. 
 Clayton, 34 Mo. App. 563, 566; Dorr v.
 
 436 
 
 APPELLATE l'ROCI.DURE. 
 
 01G. Mandamus — Cases in which it will issue — It may be said 
 by way of preface, although at the expense of repetition, that 
 mandamus will lie wherever there is a clear right of appeal and 
 the party has done all that he can to enforce the right and as- 
 sistance is required to enable him to perfect his appeal, as well 
 as where the writ is required to secure the execution of an 
 order, decision, or judgment of the appellate tribunal. The 
 power to issue a writ of mandamus in aid of appellate jurisdic- 
 tion is much more comprehensive than fugitive expressions in 
 some of the decided cases indicate. The power is, indeed, 
 very closely akin to an original one, but is, nevertheless, an 
 attribute of appellate jurisdiction. It has been held that man- 
 damus lies where the trial court refuses to entertain jurisdiction 
 when it ought to do so, or refuses to proceed with the trial in a 
 case where it is its duty under the law to proceed. 1 The doc- 
 trine stated is the correct one, but, we venture to affirm, it is 
 
 Hill, 62 N. II. 506. We are, however, 
 not dealing with appeals from courts of 
 limited statutory jurisdiction. 
 
 1 Ex parte Parker, 131 U. S. 221, cit- 
 ing Thompson v. United States, 103 
 U. S. 480, 483; People v. Collins, 19 
 Wend. 56; State v. Warner. 55 Wis. 
 271. In the first named case it was 
 said: "The right of mandamus lies as 
 held in Ex parte Parker, 120 U. S. 737, 
 where the inferior court refuses to take 
 jurisdiction when by law it ought to do 
 so, or where having obtained jurisdic- 
 tion, it refuses to proceed in its exercise. 
 It does not lie to correct alleged errors 
 in the exercise of its judicial discretion. 
 Ex partr Morgan, 114 U. S. 174; 
 Chateauquay Ore and Iron Co., Peti- 
 tioner, 128 U. S. 544, 557. This gen- 
 eral doctrine is pressed very far in State 
 v. Ellis, 41 La. Ann. ji, 6 So. Rep. 55. 
 Schultze v. McLearv, 73 Tex. 92, 11 
 S W. Rep. 924, il was held that manda- 
 mus will lie to compel a special judge to 
 try a cause. It has also been held that 
 mandamus will lie to compel a trial 
 court to reinstate a ease. /;/ re Parker, 
 
 131 U. S. 221; State v. Kansas City 
 Court, 97 Mo. 331, 10 S. W. Rep. 855. 
 We suppose, however, that the doctrine 
 can not obtain where the ruling refus- 
 ing to reinstate can be fully reviewed 
 on appeal. 'To award a mandamus 
 where the error can be reviewed ami 
 corrected on appeal would violate the 
 elementary rule that mandamus will 
 not lie where there is an adequate ordi- 
 nary remedy, as well as the rule that 
 mandamus will not lie to correct or re- 
 view erroneous rulings or decisions. 
 See the authorities cited in the notes to 
 the preceding paragraph, and, Scott v. 
 Yolo County Superior Court, 75 Cal. 
 [14; Wilson v. Holt, 85 Ala. 95, 4 So.. 
 Rep. 625; Brown County V. Winona. 
 etc., Co., 58 Minn. 397; In re Wilson, 
 75 Cal. 580, 17 Pac. Rep. 69S; State V. 
 Ellis, 40 La. Ann. S18, 5 So. Rep. 530; 
 Slate v. District Judge, 41 La. Ann. 73, 
 5 So. Rep. 648; Dixon v. Judge, 4 Mo. 
 286; King v. Justices, etc., 5 Nev. & 
 Man. 139; People v. Judge of Wayne 
 County. 1 Mich. 359.
 
 AUXILIARY PROCEEDINGS. 
 
 437 
 
 carried too far by some of the courts. It seems to us that it is 
 a radical departure from principle to hold that errors which 
 may be made available on appeal may be reviewed and cor- 
 rected in a proceeding to obtain a writ of mandamus. For 
 this conclusion we assign two reasons, namely, where there is 
 a right of review by appeal there is an adequate remedy, and, 
 where errors occur in deciding or refusing to decide, they may 
 be made available on appeal. Neither of these reasons ap- 
 plies, however, where the court refuses to entertain jurisdiction 
 or refuses to proceed, 1 but they do apply where the trial court 
 erroneously decides that it has no jurisdiction, as well as where 
 it erroneously decides that it has jurisdiction. It is manifest 
 that where a trial court refuses to act the appellate court may 
 coerce a decision, for the refusal to decide is an obstacle to the 
 exercise of the right of appeal which the appellate tribunal has 
 plenary power to remove. Upon the principle that the appel- 
 late tribunal may assist a party in perfecting an appeal, it is 
 rightly held that mandamus will lie to compel the trial judge to 
 
 1 This conclusion is probably opposed 
 to the doctrine of State v. Biddle, 36 
 Ind. 138, for it seems to have been held 
 in that case that the trial court could 
 not be compelled to proceed with a 
 cause. We can not believe that the 
 doctrine stated in that case is correct. 
 As indicated in another place, our 
 opinion is that the case referred to lim- 
 its the scope of appellate jurisdiction 
 much more than principle or authority 
 warrant. It must be true that the trial 
 court can be compelled to proceed with 
 a cause to judgment, for a judgment 
 must be rendered in order to give a 
 right of appeal, and the trial court can 
 not nullify that right by wrongfully re- 
 fusing to act. In compelling it to pro- 
 ceed to judgment the appellate tribunal 
 does no more than remove an impedi- 
 ment to the right of appeal. The au- 
 thorities already cited sustain our con- 
 clusion and to those cited may be 
 added People v. Swift, 59 Mich. 529; 
 
 Temple V. Superior Court, 70 Cal. 211; 
 Ex parte Graves, 61 Ala. 381; Floral 
 Springs Water Co. v. Rives, 14 Nev. 
 431; Beguhl v. Swan, 39 Cal. 411; State 
 v. Cape Girardeau Court, 73 Mo. 560; 
 State v. Horner, 10 Mo. App. 307; 
 Blackberry v. People, 10 111. (5 Gilm.) 
 266; Ex parte Thornton, 46 Ala. 384; 
 State v. Ellis, 41 La. Ann. 41, 6 So. Rep. 
 55. If the decision in State v. Biddle, 
 supra, can be construed as meaning no 
 more than that mandamus will not lie 
 where a ruling may be made available 
 on appeal, or as simply asserting that 
 original jurisdiction can not be exercised 
 by the Supreme Court it may be deemed 
 correct, but if it is to be understood as 
 meaning that the Supreme Court can 
 not compel a trial court to proceed to 
 judgment it is in conflict with the cases 
 cited and with the case of State v. 
 Board, 45 Ind. 501. See, also, Moore 
 v. State, 72 Ind. 35S.
 
 438 
 
 APPELLATE PROCEDURE. 
 
 settle and sign the proper bill of exceptions, but it would be a 
 violation of principle to specifically direct him what to put in 
 the bill in a case where there is a controversy as to what the 
 bill should contain. 1 Mandamus will lie to enforce a mandatory 
 duty to make a record entry, but a fair deduction from the au- 
 thorities cited is, that it will not lie where there is a controversy 
 of such a character as to require a judicial decision as to what 
 the entry shall be, for where there is such a controversy, the 
 appellate tribunal will not assume to dictate what the decision 
 shall be, although it may compel a decision. 2 Upon the gen- 
 
 1 Jcllcv v. Roberts, 50 Ind. 1; People 
 v. Anthony, 25 111. App.Ct. 532; Che- 
 Gong v. Stearns, 16 Ore. 219, 17 Pac. 
 Rip. S71; Poteet v. County Commis- 
 sioners, 30 W. Va. 58, 3 S. E. Rep. 97; 
 /;/ re Chateaugaj' Ore and Iron Co., 128 
 I S. 544; Cummings v. Armstrong, 34 
 W. Va. 1, 11 S. E. Rep. 742; People v. 
 Hawes, 25 111. App.326; State v. Field, 
 37 Mo. App. S3; /;/ re \ 'anvabry v. 
 Staton, SS Tenn. 334, 12 S. W. Rep. 786; 
 Ex parte Henderson, 84 Ala. 36, 4 So. 
 Rep. 2S4. Where the trial judge set- 
 tles and signs a bill of exceptions the 
 court will not award a peremptory 
 mandamus. Tbis was so decided after 
 full consideration in Jelly v. Roberts, 
 supra. A like conclusion was affirmed 
 by the Supreme Court of Illinois in the 
 case of Peoples. Anthony, 129 111. 218, 
 21 X. E. Rep. 780. See, also, Tweed v. 
 Davis, 4 Thomp. & C. (N. Y.) 1. See, 
 also, Ex parte Bradstreet, 4 Pet. 102; 
 Ex parleStory, 12 Pet. 339. Ifthe judge 
 does not answer, or if his answer, or re- 
 turn, is insufficient, a peremptory writ 
 will be awarded. Springer v. Peterson, 
 1 Blackf. 188; State v. Hawes. 43 Ohio 
 St. 16. See, generally, Conrow v. 
 Schloss, 55 Pa. St. 28; People v. Lee, 
 
 al. 510; Ex parte Crane, 5 Pet. 190; 
 Mi Donald, 30 Minn. 98; State 
 v. Sheldon, 2 Kan. 322. 
 
 2 The conclusion that the appellate 
 tribunal will not assume to decide what 
 
 the particular entry shall be where there 
 is a dispute, is fortified by the rule that 
 an appeal will lie from a refusal to make 
 a nunc pro tunc order in the proper 
 case. Ante, § -[4. and authorities cited. 
 As an appeal will lie the error may be 
 corrected in an ordinary proceeding, 
 and resort can not be had to the ex- 
 traordinary remedy. Marshall v. State, 
 1 Ind. 72; Board v. llieks, 2 Ind. 527; 
 State v. Board, 25 Ind. 210; State v. 
 Board, 45 Ind. 501; Harrison School Tp. 
 v. McGregor, 96 Ind. 185; White v. Bur- 
 kett, 119 Ind. 431; State v. County 
 Judge, 5 la. 380; Peoples. Hawkins, 46 
 N. Y. 9; Poindexter v. Greenhow, 84 
 Va. 441; Ex parte Stickney, 40 Ala. 
 160; Territory v. Shearer, 2 Dak. 332; 
 Moody v. Fleming, 4 Ga. 115, S. C. 48 
 Am. Dec. 210; Ex parte Virginia Com 
 missioners, 112 U. S. 177; State v. 
 Rightor, 36 La. Ann. 112; State v. Me- 
 gown, 89 Mo. [56; Hemphill v. Collins, 
 117 111. 396; State v. Justices of Mocre 
 County, 2 Ired. L. 430. The only con- 
 sistent doctrine is that which restricts 
 the right to the writ to cases where 
 there is no dispute as to the character 
 of the entry or no right to make the 
 question on appeal. Leavitt t. Judge 
 of Superior Court, 52 Mich. 595. The 
 right to make the question on appeal 
 is an element of controlling influence. 
 Ex parte King, 27 Ala. 387; Ex parte 
 Hughes, 1 14 U. S. 147; Ex parte Hoyt,
 
 AUXILIARY PROCEEDINGS. 
 
 439 
 
 eral principle that a function of appellate jurisdiction is to assist 
 parties rightfully entitled to prosecute an appeal to perfect the 
 appeal by coercing the performance of duty by ministerial, as 
 well as by judicial officers, mandamus will lie to compel the 
 signing of the proper record and the certification of the neces- 
 sary transcript. 1 Within this general principle as to the wrongful 
 denial of an appeal, or the wrongful interposition of obstacles 
 to the prosecution and perfecting of the appeal fall many par- 
 ticular instances. 2 While, as we have elsewhere said, manda- 
 mus can not rightfully be made to take the place of a writ of 
 error or of an appeal, it may, nevertheless, be employed to put 
 the case in a situation to appeal, and, to do this, it may lie to 
 compel the trial court to make and enter a decision 3 It is quite 
 clear that mandamus will lie to compel the trial court to obey 
 the directions, instructions and judgments of the appellate tri- 
 bunal, 4 for in such cases the duty is a mandatory one and the 
 trial court has no discretion to exercise. 
 
 § 517. Mandamus — Matters of Practice — Mandamus is an ex- 
 traordinary remedy and not a writ of right. 5 A party who asks 
 
 13 Pet. 279; Bank v. Sweeney, 1 Pet. Field, 37 Mo. App. 83; York v. Ingham 
 
 567; Ex parte De Groot, 6 Wall. 497. Circuit Judge, 57 Mich. 421, 24 N. W. 
 
 1 United States v. Gomez, 3 Wall. Rep. 157; £» /«rfe Newman, 14 Wall. 
 752; State v. Wallace, 41 Ind. 445. 152; Life, etc., Ins. Co. v. Adams, 9 Pet. 
 
 2 It will lie to compel the signing of a 573; Ex parte Railway Co., 103 U. S. 
 judgment. Life, etc., Ins. Co. v. Ad- 794; Ex parte Baltimore, etc., Co., 10S U. 
 ams, 8 Pet. 306; Life, etc., Co. v. Wilson, S. 566; White v. United States, 1 Wall. 
 8 Pet. 291. It will coerce the entry of a 660; State v. Murphy, 41 La. Ann. 526, 
 judgment. State v. Engle, 127 Ind. 457, 6 So. Rep. 816. The merits of a cause 
 26 N. E. Rep. 1077. A clerk can not can not be determined upon an auxil- 
 question the correctness of the minutes iary application for mandamus. State 
 of the judge in a case where an applica- v. King, 42 La. Ann. 77, 7 So. Rep. 72; 
 tion is made for a mandamus to compel Shine v. Kentucky, etc., Co., 85 Ky. 177, 
 him to make out a transcript. State v. 3 S. W. Rep. 18. 
 
 Mayo, 42 La. Ann. C37, S So. Rep. 52; * Perkins v. Fourniquet, 14 How. (U. 
 
 State v. Cressinger, 88 Ind. 499. See, S.) 32S; Ex parte Sawyer, 21 Wall. 235; 
 
 generally, Stafford v. Union Bank, 17 Ex parte Railway Co., 101 U. S. 711. 
 
 How. (U. S.) 275; Quan Wo Chung v. See, generally, Ex parte Roberts, 11; 
 
 Laumeister, 83 Cal. 384, 23 Pac. Rep. 
 3-0. 
 
 3 Ante, § 516; People v. District Court 
 Arrapahoe Count}*, 14 Col. 396, 24 Pac. 
 Rep. 260; Ex parte Alabama State Bar 
 Asso. (Ala.), S So. Rep. 76S; State v. 
 
 Wall. 3S4; Ex parte United States, 16 
 Wall. 699; Jared v. Hill. 1 Blackf. 155. 
 5 Durand v. Gage, 76 Mich. 624, 43 
 N. W. Rep. 5S3; State v. Flad, 26 Mo. 
 App. 500; Holborn Union v. St. Leon- 
 ard's Parish, 2 Q^ B. D. 145, 149; Ex
 
 440 
 
 APPELLATE PROCEDURE. 
 
 that the writ be awarded him must make a very strong case. 1 
 The rule stated applies even in ordinary cases, but there is a 
 stronger reason for its application in a case where the writ is 
 asked to coerce action by a judge of a court of general superior 
 jurisdiction, for the strong presumption is that he has performed 
 ' his duty fully and faithfully. 2 A verified petition is required, 
 and the petition must show a clear right to the relief prayed. 
 It must show diligence and that the petitioner has left nothing 
 undone which it was incumbent upon him to do, or show that 
 the judge, or other officer, wrongfully prevented him from 
 doing what the law required him to do. 3 It is, of course, nec- 
 essary to plead the facts fully and positively and not by way of 
 mere conclusions or recitals. The facts pleaded must show the 
 judge or officer to be in the wrong, 4 that the petitioner is in the 
 right, and that he has placed himself in a position to ask assist- 
 ance from the appellate tribunal. Where a transcript can be 
 procured it should be filed before or at the time of applying for 
 the mandamus, for the party must proceed as far as he can 
 without assistance, and he must show, as far as in his power, a 
 willingness and an attempt to get the case into the appellate 
 
 parte Commissioners, 112 U. S. 177; 
 Knox County v. Aspinwall, 24 How. 
 (U. S.) 376; Kentucky v. Denison, 24 
 How. (U. S.) 66; Gardner v. Hanej, 86 
 Ind. 17; City of Indianapolis v. Mc- 
 Avoy,86 Ind. 587; Shelby Tp. v. Ran- 
 dies, 57 Ind. 390. 
 
 1 State v. McCabe, 74 Wis. 481, 43 N. 
 W. Rep. 322; State V. Williams. 99 Mo. 
 291, 12 S. W. Rep. 905; State v. Knight, 
 31 So. Car. 81, 9 S. E. Rep. 692; Bay 
 ard v. United States, 127 U. S. 246; 
 State v. Kinkaid, 23 Neb. 641, 37 N. W. 
 Rep. 612. In the appellate tribunal the 
 writ is issued in aid of the appellate ju- 
 risdiction, and only in clear cases. 
 Riggs v. Johnson County, 6 Wall. 166; 
 United States v. Boutwell, 17 Wall. 604. 
 
 2 Vanvabry v. Staton, 8S Tenn. 331. 
 12 S. W. Rep. 786; Cummings v. Arm- 
 
 ng, 34 W. Va. 1, 11 S. E. Rep. 742. 
 The party must show a right to a decision 
 
 and a wrongful refusal. Where there is a 
 decision it must be challenged upon ap- 
 peal or by a writ of error, not by man- 
 damus. Ex parte Koon, 1 Denio, 644; 
 People v. Justices, 20 Wend. 663; Ex 
 parte Ostrander, 1 Denio, 679; People 
 v. Tracy, 1 Denio, 617; Peralta v. Ad- 
 ams, 2 Cal. 594; Ex parte Milner, 6 
 Eng. Law t V Equ. 371; County Court 
 of Warren v. Daniel, 2 Bibb. 573; Ex 
 parte Taylor, 14 How. (U. S.) 3; Ex 
 parte Bacon, 6 Cowen, 392. 
 
 3 Unexplained delay will be fatal to 
 the application, for the law exacts dili- 
 gence. State v. Dyer, 99 Ind. 426. 
 
 4 It is upon this principle that it was 
 held thai the party asking the extraor- 
 dinarv relief must show a demand or 
 request. State v. Slick, S6 Ind. 501. 
 See, generally, Ingerman v. State, 128 
 Ind. 225, and authorities cited.
 
 AUXILIARY PROCEEDINGS. 441 
 
 tribunal. 1 A party who asks a mandamus where there is a 
 pending appeal invokes an extraordinary remedy, but when he 
 asks it where there is no pending appeal he asks the court for 
 extraordinary relief in an unusual case, and hence must show a 
 very clear right to the relief; this he can not do without showing 
 that he has left nothing undone that he could do without assist- 
 ance. If he can unassisted take such steps as secure a pending 
 appeal, he is bound to do so, but if he can- not proceed that far 
 he may ask assistance, since the court will not allow his right 
 of appeal to be defeated or its jurisdiction to be wrongfully im- 
 paired. It may be added that a party who has no pending ap- 
 peal can not obtain mandamus without showing sufficient reason 
 why his case constitutes an exception to the general rule. If no 
 such reasons are shown the general rule will prevail. 2 
 
 § 518. Prohibition — The rules which govern the writ of pro- 
 hibition are similar to those which prevail in proceedings to ob- 
 tain a writ of mandamus from an appellate tribunal. The writ 
 of prohibition may be employed by an appellate tribunal to 
 prevent an unlawful invasion of its jurisdiction, and to prevent 
 a wrongful interference with its records. The writ can not be 
 made to take the place of an appeal or of a writ of error. 3 Er- 
 rors available on appeal can not be made available upon a pe- 
 tition for a writ of prohibition, any more than they can be upon 
 a petition for a mandamus. Under a system such as ours prohi- 
 bition can seldom be an appropriate remedy where the action 
 of a court of superior general jurisdiction is sought to be con- 
 
 1 Hawes v. People, 124 111. 560, 17 N. It is held that where there is jurisdiction 
 E. Rep. 13. We cite this case as show- in the lower court prohibition will not 
 ing that, as a general rule, an appellate issue to control its proceedings. State 
 tribunal will not issue a mandamus v. Judge of the Superior Court, 29 La. 
 where there is no pending appeal. Ann. 360. But it is also held that 
 
 2 As illustrating the general doctrine where there is no jurisdiction the writ 
 of the text, see Hoxie v. County Com- may be awarded. Swinburn v. Swift, 
 missioners, 25 Me. 333; Sikes -'.Ran- 15 W. Va. 4S3. See Bacon's Abridg. 
 som, 6 Johns. 279; Midberry v. Col- Title Prohibition, 3 Blackstone's Com. 
 lins, 9 Johns. 345; State v. Tool, 4 112; Smith v. Whitney, 116 U. S. 167, 
 Ohio St. 553; Gray v. Bridge, 11 Pick. 174; Thomson v. Tracy, 60 N. Y. 31; 
 189; Squier v. Gale, 1 Halst. (N. J. L.) Connecticut, etc., Co. v, Franklin 
 157. County Commissioners, 127 Mass. 50. 
 
 3 Home v. Camden, 2 H. Bl. 533, 536.
 
 442 
 
 APPELLATE PROCE] 
 
 trolled, for decisions upon the question of jurisdiction may be 
 reviewed on appeal. 1 We suppose, notwithstanding some of the 
 expressions used in the case referred to in the note, that there 
 may be cases where a writ of prohibition will issue to a trial 
 court although it may have jurisdiction of the general subject, 
 as. for instance, in a case where the trial court attempts to do 
 something positively forbidden by the directions or instructions 
 contained in the mandate of the appellate tribunal. It is the 
 imperative duty of the trial court to obey the mandate, and the 
 appellate tribunal must necessarily have power to coerce obedi- 
 ence by mandamus or by prohibition. 
 
 1 Board of Commissioners v. Spitler, 
 13 Ind. 235. In the case cited it was 
 said: "This exposition of the causes 
 for which a writ of prohibition may 
 issue at common law, at once shows 
 that under our system of procedure, it 
 can only be used for one cause, namely 
 to command the judge and parties of a 
 suit in an inferior court to cease the 
 prosecution thereof, upon a suggestion 
 that the case originally, or some col- 
 lateral matter arising therein, does not 
 belong to that jurisdiction, but to the 
 cognizance of some other court. If this 
 position be correct, and we think it is, 
 the writ of prohibition in this instance 
 
 was not the proper remedy, because 
 the Board of Commissioners of Jasp, r 
 county had, in the case pending before 
 it, original and exclusive jurisdiction. 
 Indeed, we perceive no reason why the 
 party, instead of prosecuting the writ 
 in question, did not adopt the usual 
 remedy of appeal." We think the de- 
 cision from which we have quoted a 
 sound one, for under the American 
 system, as it generally prevails, a de- 
 cision affecting the question of jurisdic- 
 tion may be reviewed in an ordinary 
 appeal and hence there is no reason for 
 resorting to the extraordinary remedy.
 
 CHAPTER XXVI. 
 
 DISMISSAL AND REINSTATEMENT. 
 
 4 519. The motion to dismiss the ap- § 528. Two appeals. 
 
 peal is generally a preliminary 529. Appeal from judgment rendered 
 
 motion. in obedience to the mandate 
 
 520. The court may dismiss on its remanding the case. 
 
 own motion. 530. Bill of review. 
 
 521. Second motion to dismiss not 531. Parties to the motion to dismiss. 
 
 entertained. 532. Requisites of the motion. 
 
 522. Merits not considered on the 533. Notice of the motion to dismiss. 
 - motion to dismiss. 534. Dismissal by the appellant. 
 
 523. Failure to comply with the rules 535. Effect of a dismissal. 
 
 of the court. 536. Withdrawing the transcript. 
 
 524. Failure to perfect the appeal 537. Reinstatement — The power to 
 
 within the time prescribed. order. 
 
 525. Failure to give notice. 538. Cause must be shown. 
 
 526. No appealable interest. 539. Noticeof the motion to reinstate. 
 
 527. Failure to file a bond. 540: Practice on motion to reinstate. 
 
 § 519. The Motion to Dismiss the Appeal is generally a Preliminary 
 Motion — A motion to dismiss the appeal is usually, but not al- 
 ways, a preliminary motion. In most cases it should be inter- 
 posed before a general appearance is entered. 1 Many causes 
 available on a motion to dismiss, in cases where the motion is 
 promptly made, and made before a general appearance, are 
 unavailable where there is delay or a full appearance. 2 A sate 
 general rule is to move to dismiss before appearing generallv 
 and to interpose the motion promptly, otherwise the causes as- 
 signed may be regarded as waived. The doctrine of waiver 
 exerts an important influence upon motions to dismiss the ap- 
 
 1 Peoples Bank 7'. Finney, 63 Ind. 460; 2 Walker v. Hill, 1 11 Ind. 223; State 
 
 Archey v. Knight, 61 Ind. 311; Bender v. Walters, 64 Ind. 226: Field v. Bur- 
 
 v. Wampler, 84 Ind. 172; Ridenour v. ton, 71 Ind. 3S0; Truman v. Scott, 72 
 
 Beekman, 68 Ind. 236; Beck v. State, Ind. 258; Brooks v. Doxey. 72 Ind. 327: 
 
 72 Ind. 250; Burnett v. Abbott, 51 Ind. West v. Cavins. 74 Ind. 265; Lloyd v. 
 
 254. The exceptions to the general Reynolds. 26 Neb. 63, 41 N. W. Rep. 
 
 rule stated are rare. 1072. 
 
 (443)
 
 _j44 A.PPELLA I i: PROCEDURE. 
 
 peal, and delay will often give effect to that doctrine to the 
 injury of the appellee. 
 
 § 520. The Court may Dismiss on its own Motion — Where it ap- 
 pears that there is no jurisdiction the court will dismiss the ap- 
 peal on its own motion. If there is no jurisdiction of the sub- 
 ject the appeal will be dismissed by the court at any stage of 
 the proceedings. 1 Where there is no final judgment, and the 
 case is not one in which an appeal lies from an interlocutory 
 judgment, the court will not entertain the appeal but will di- 
 rect a dismissal. 2 So, where the record shows that there is no 
 actual controversy but a mere feigned case, the court may, on 
 its own motion dismiss the appeal. 3 And the court may., upon 
 the same principle, dismiss an appeal where it appears that the 
 controversy has fully terminated. 1 But a party is not bound to 
 act upon the assumption that the court will, of its own motion, 
 dismiss the appeal, so that it is always proper for him to move 
 for a dismissal in such cases as those indicated, and, it may be 
 added, it is generally safer for him to make the proper motion. 
 
 § 521. Second Motion to Dismiss not Entertained — A second mo- 
 tion to dismiss an appeal based upon the same grounds as those 
 
 1 New Orleans v. Scalzo, 41 La. Ann. 2 Reese v. Beck, 9 Ind. 238; Miller v. 
 
 1 141; Robinson v. Oceanic, etc., Co., State, 8 Ind. 325; Taylor v. Board, 120 
 
 112 N. Y. 315; Doctor v. Hartman, 74 Ind. 121. See "From what an appeal 
 
 Ind. 221; Smith v. Myers, 109 Ind. 1, maybe taken." Ante, Chapter V. See, 
 
 9; Robertson v. Smith, 109 Ind. 79; also, Wilcox :\ Wilcox (Vt.), 21 Atl. 
 
 United States v. Yates, 6 How. (U. S.) Rep. 423; Laiwdley v. Kline, 21 W.Va. 
 
 605; Breidert v. Krueger, 76 Ind. 55; 21; Bacas v. Smith, ^ La. Ann. 139; 
 
 Louisville, etc., Co. :•. Jackson, 64 Ind. Hoover :\ York, 33 La. Ann. 652; Cars- 
 
 39S; Evansville, etc., Co. v. Barbee, 59 well r.Crowther (Texas), i6S.W.Rep. 
 
 Ind. 502; United StaU-s v. Morillo, I 172; Fitzgerald :■. Evans, 53 Texas, 461. 
 
 Wall. 706; Parker v. Morrill, 106 U.S. 3 United States v. Phillips, 6 Peters, 
 
 1. See ".Questions that may be first 776; Peck v. Young, 1 How. (U. S.) 
 
 made on appeal." Ante, Chapter XX. 250; Cartwright v. Howe, 1 How. (U. 
 
 See, also, Hart v. Burch, 31 111. App. S.) 18S; San Mateo County v. Southern 
 
 22. S. C. 22 N. K. Rep. 831; Rohn v. Pacific R. R. Co., 116 U. S. 13S. 
 
 Harris. 31 111. App. 26, S. C. 22 X. E. * Schmohl v. Fusco, 13 N. Y. Supp. 
 
 Rep. ;S; ; Douglass v. Neguelona, 8S 5S3. 
 Tenn. ;'»;, 14 S. W, Rep. 2S3.
 
 DISMISSAL AND REINSTATEMENT. 445 
 
 assigned in the first motion will not be entertained. 1 The rea- 
 son for this rule is obvious. Nor will a second motion be en- 
 tertained upon new reasons unless it appears that diligence and 
 care would not have enabled the party to discover and present 
 such new reasons in the first instance. The court may, of 
 course, enter a -pro forma order provisionally overruling the 
 motion to dismiss and subsequently consider it. 2 The practice 
 of our court has been to hold motions to dismiss an appeal 
 which present special difficulties or which require a full ex- 
 amination of the record until the case is taken up for final con- 
 sideration. It is barely proper, at all events, hardly necessary, 
 to add that the matter is one largely within the discretion of the 
 court. 
 
 § 522. Merits not considered on the Motion to Dismiss — A motion 
 to dismiss does not involve any questions concerning the merits 
 of the controversy ; it simply brings in question the effective- 
 ness of the appeal. On such a motion the court will only in- 
 quire whether the appeal lies and whether it is properly taken 
 and perfected. It will not decide any question affecting the 
 merits of the controversy upon the motion to dismiss. 3 
 
 § 523. Failure to Comply with the Rules of the Court— It is evi- 
 dent from the authorities referred to in the preceding para- 
 
 1 Stevens ?'. Higginbothanv( Utah), 23 above mentioned, and these questions 
 Pac. Rep. 757; Bingham v. Brumback, are made to depend upon the consider- 
 24 111. App. 332; Tyrrell v. Baldwin, ation of the pleadings and proofs. These 
 78 Cal. 470, 21 Pac. Rep. 116. See questions should be discussed in the 
 Truelock v. Friendship Lodge, 75 la. argument when reached in regular or- 
 3S1, 39 N. W. Rep. 654. der. To dispose of such questions on a 
 
 2 Green v. Ronen, 62 Iowa, 89. motion to dismiss is to dispense with 
 
 3 Swasey v. Adair, S3 Cal. 136, 23 Pac. the rules prescribed for the orderly dis- 
 Rep. 2S4; Hill v. Chicago, etc., Co. 129 position of appealed cases. We cannot 
 U. S. 170; Graham v. Board, 25 Ind. countenance such a course and thereby 
 333; Hooper v. Beecher, 109 N. Y. 609. open up a short cut for the resort of lit- 
 In the case last cited the court, in speak- igants anxious to gain an earlier hear- 
 ing of a motion to dismiss upon the ing from us than they are entitled to 
 ground that there was no merit in the have by the rules." See, also, State v. 
 appeal, said: "The judgment is final Bradley, 29 Mo. App. 366; Dzialvnski 
 and, therefore, appealable. The legal v. Bank ofjacksonville, 23 Fla. 44, 1 So. 
 questions involved are the validity or Rep. 338; Burke v. Pepper, 29 Neb. 320, 
 invalidity of an assignment for the ben- 45 N. W. Rep. 466; State :\ Prater, 26 
 efit of creditors made and executed as So. Car. 613.
 
 11(5 
 
 APPELLATE PROCEDURE. 
 
 graphs and from the principles there stated, that a motion to dis- 
 miss must assign some cause or sour- reason which establishes 
 the claim that the appeal will not lie or that some step essential 
 to the effectiveness of the appeal has not been taken in the 
 manner and within the time prescribed by the statute or by the 
 rules of practice. It is not enough to comply with the statutory 
 commands or the common law requirements, for the rules es- 
 tablished by the court must also be complied with or the appeal 
 may be dismissed. 1 Our decisions have not given such strict 
 effect and force to the rules of the court as the courts elsewhere 
 have done, and it is, perhaps, to be regretted that the court 
 has been so lax in the enforcement of its rules. We venture to 
 say that it is much better and much more satisfactory to strictly 
 and uniformly enforce the rules than to spasmodically relax them 
 and now and them rigidly enforce them. Our court has en- 
 forced the rules respecting the filing of briefs 2 with considera- 
 ble strictness, but the rules in other respects have not been 
 very strictly enforced. It is, as the authorities to which we 
 
 1 Whitehurst v. Pettipher, 105 N. C. 
 39, 10 S. K. Rep. 857; Avery v. Pritch- 
 ard, 106 N. C. 344; Dodd v. Bowles, 3 
 Wash.Ty. 11. 13 Pac. Rep. 6S1; Griffin 
 v. Nelson, [06 N. C. 235. 11 S. E. Rep. 
 414; Gant -■. Tiinmons, 78 Tex. 11, 14 S. 
 \V. Rep. 236; Ashe v. Glenn, 33 So. Car. 
 606; Armijo v. Abeytia (New Mex.), 25 
 Pac.R0p.777; Martin v. Nugent (Mo.), 
 [5 S. W. Rep. 422; Pearson v. House- 
 hold, etc., Co., 78 Tex. 385, 1 1 S.W.Rep. 
 890; Veronee v. Bell (So. Car.), 12 S. 
 E. Rep. 664; Randolph v. Ilahn, 33 So. 
 Car. 609, 12S. E. Rep. 600; Dial v. Dial, 
 ^ So. Car. 306, 12 S. E. Rep. 474; 1 1 in 
 ton v. Pritchard, 107 N. C. 128, 12 S. E. 
 Rep. 242; People v. Flack, 15 Daly, 442; 
 
 Murphy V. ko>s. 2 Wash. 327. 26 Pac. 
 
 Rep. 222: Donahue v. Enterprise 
 Co., 33 So. Car. 608. 12 S. E. Rep. out;. 
 These eases, to which many more might 
 :asily added, prove that the failure 
 to comply with the rules of the court 
 makes a dismissal necessary — not mere- 
 
 ly proper. This is the only consistent 
 doctrine. 
 
 2 Deford v. Urbain, 42 Ind. 470; 
 Stephens v. Stephens, 51 Ind. 542; 
 Cutler v. State, 62 Ind. 39S; Gardner 
 v. Stover, 43 Ind. 350; Murray v. Wil- 
 liamson, 79 Ind. 287. It has enforced 
 the rule as to briefs, although some 
 brief has been filed, but not such as the 
 rule requires. Harrison v. Hedges, 6S 
 Ind. 266; Bray :•. franklin Co., 60 Ind. 
 6; Northwestern, etc., Co. v. Hazelett, 
 
 105 Ind. 212; Landwerlen v. Wheeler, 
 
 106 Ind. 523; Louisville, etc., Co. v. 
 Donnegan, 11 1 Ind. 179; Henderson v. 
 Burch, 10 Ind. 54; Couse v. Havens, 44 
 Ind. 2S2; Zehnor v. Crull, 10 Ind. 5^7. 
 But as to other matters, as for instance, 
 making marginal notes on transcript, 
 the practice has not been uniform. 
 O'.Neil v. Chandler, 42 Ind. 471; Bass 
 
 Doerman, 112 Ind. 390; Beigh v. 
 Smarr, 62 Ind. 400.
 
 DISMISSAL AM) REINSTATEMENT. 
 
 44 
 
 have referred very clearly show, not only proper to dismiss an 
 appeal for a failure to comply with the rules of the court, but it 
 is a duty. The rules constitute the law, 1 and can not be disre- 
 garded. 
 
 § 524. Failure to perfect the Appeal within the Time Prescribed — 
 
 In a former chapter we considered at length the rules which 
 govern as to the time within which an appeal must be taken, 
 and affirmed that the provisions of the law limiting the time 
 within which an appeal may be taken are mandatory. 2 We 
 declared, also, that all the essential steps, and not merely some 
 of them, must be taken within the time designated by the law. 
 It results from the doctrines stated that if an appeal is not per- 
 fected by doing all that the law commands within the time 
 fixed, the court should dismiss it, and so the authorities declare. 3 
 
 1 Ante, § 7, and authorities cited in 
 the notes. It seems to us that it is the 
 duty of the court to uniformly and 
 strictly enforce its rules, and this is the 
 doctrine of some of our own cases, and 
 should be of all, but it is not, for the de- 
 cisions are conflicting. Beigh v. Smarr, 
 supra; Bass t 1 . Doerman,.?K/r«; Bow- 
 man v. Simpson, 6S Ind. 229; Kiley v. 
 Perrin, 69 Ind. 3S7; Contra Mitchell v. 
 American Ins. Co., 51 Ind. 396; True- 
 blood v. Nicholson, 52 Ind. 420, and 
 cases cited in preceding note. 
 
 2 Ante, Chapter VI. See, also, Whit- 
 sitt v. Union, etc., Co., 122 U. S. 363. 
 
 3 Holloran v. Midland, etc., Co. (Ind.), 
 28 X. E.Rep. 549, and cases cited; Vito- 
 reno v. Corea (Cal.), 25 Pac. Rep. 420; 
 Hull v. Westcott, 17 Fla. 2S0; Page v. 
 Latham, 60 Cal. 601 ; Heinlen v. South- 
 ern, etc., Co. 65 Cal. 304; N. P. Termi- 
 nal Co. v. Lowenberg, 11 Oregon 2S6; 
 Struber v. Rohlfs, 36 Kan. 202; Kasson, 
 v. Follett, 9 Col. 34S; Judge v. Ohm, 89 
 Cal. 134, 26 Pac. Rep. 694; State v. 
 James (N.C.), 13 S. E. Rep. 112; Joseph 
 Schnaider's Brewing Co. v. Lewie, 41 
 
 Mo. App. 584; Williams v. Hutchinson 
 (Fla.), 7 So. Rep. S52; Sturtevant v. 
 Wineland, 22 Neb. 702, 36 N. W. Rep. 
 277; Talbird t'.Whippee, 31 So. Car. 600, 
 9 S. E. Rep. 742; Pregnall v. Miller, 26 
 So. Car. 612, 7 S. E.Rep. 71; Gulf, etc., 
 Co. v . Edwards, 72 Tex. 303, 10 S. W. 
 Rep. 525; Williams v. La Penotiere, 25 
 Fla. 473, 6 So. Rep. 167; Glos v. Ran- 
 dolph, 130 111. 245, 22 N. E. Rep. 797; 
 Viera v. Dobyus (Cal.), 24 Pac. Rep. 
 1S1. Corinne Mill Co. v. Johnston. 5 
 Utah 147, 13 Pac. Rep. 17; Lincoln v. 
 Milstead, 3S Mo. App. 350; Dean v. 
 Jones, 27 Mo. App. 46S; Turner -•. Hine, 
 37 Iowa, 500. See, also, authorities col- 
 lected in note ante, § 12S. While the 
 authorities uniformly hold that the fail- 
 ure to perfect the appeal in time makes a 
 dismissal imperative, yet it is held that 
 a case may be made excusing the delay. 
 Chapman v. Bank, S8 Cal. 419, 26 Pac. 
 Rep. 60S; Garitee v. Popplein, 73 Md. 
 322, 20 Atl. Rep. 1070. But a very 
 strong case must be made in order to 
 break the force of the general rule. 
 Ante, §§ 116, 117. and authorities cited.
 
 448 APPELLATE PROCEDURE. 
 
 i 525 Failure to give Notice— Where the appellant fails to 
 give notice, the appellee, unless he waives notice by some act, 
 is entitled, upon a due and seasonable motion, to a dismissal of 
 the appeal. This is plainly so for the reason that notice is es- 
 sential to the jurisdiction over the person by the appellate tri- 
 bunal. This rule does not, of course, apply where notice is 
 not required, as, for instance, where the appeal is fully perfected 
 in term. It is hardly necessary to refer to authorities upon the 
 plain elementary proposition stated, especially as the subject 
 has already received attention. 1 Notice to co-parties is, as we 
 have elsewhere shown, essential, but, under the decisions of 
 our court, all objections grounded on a failure to give notice to 
 co-parties are waived if not made before joining in error. 2 A 
 failure to promptly object is, as said in the first paragraph of 
 this chapter, 3 a waiver of mere irregularities or defects in a 
 notice, and a general appearance without objection is regarded 
 as a waiver of all objections based on a failure to give notice. 
 
 § 526. No Appealable Interest— If it appears from an inspec- 
 tion of the record that the party who assumes to appeal has no 
 appealable interest, the appeal may be dismissed on motion. 4 
 
 1 Ante, §173; Holloran v. Midland It is evident that the later cases have 
 Rv. Co., 2S N. E. Rep. 549; Herman v. departed from the rule respecting notice 
 Francis Co., 7 Mo. App. 562; Raymond to co-parties, for the earlier decisions 
 v. Richmond, 76 N. Y. 106; Hastings v. certainly regarded the rule as of a sub- 
 Halleck, ioCal.31; Franklin v. Reiner, stantial and important character while 
 S Cal. $40; YVhipley v. Mills, 9 Cal. 641; some of the later ones declare it to be 
 Boston V. llavnes, 31 Cal. 107; Foy v. somewhat technical. Sec, in addition 
 Domec, 33 Cal. 317; Lynch v. Dunn, to the cases first cited in this note. Mc- 
 34 Cal. 518; Hendrickson v. Sullivan Clure v. Taylor, 3S Ind. 427. As a 
 jS Neb. 790, 44 X. W. Rep. 1 135. type of the later cases, see Field :•. Bur- 
 
 2 Knarr v. Conway, 37 Ind. 257; ton, 71 Ind. 380. A discussion of the 
 Wickharri V. Hess, 38 Ind. 183; Hunter subject will be found at another place. 
 v. Chrisman, 70 Ind. 439; Burk V. Ante, $$ 143, 144. See. also, Shannon 
 Simonson, 104 Ind. 173; Aylesworth v. v. Cavazos, 131 U. S. App. LXXI. 
 Milford, 3S Ind. 226; Erwin v. Scotten, 3 See, also, Archey v. Knight, 61 Ind. 
 38 Ind. 289. As to who are deemed co- 311,314. 
 
 parties, see Keller v. Boatman, 49 Ind. 4 Independent District, etc., v. Dis- 
 
 101; Hammon v. Sexton, 69 Ind. 37; trict, etc., 44 la. 201 ; Faucher v. Grass, 
 
 Koons v. Mellett, 12 1 Ind. 585; Hadley 60 la. 505; Gresham v. Chantry, 69 la. 
 
 • Hill, 73 Ind. 442. For a full discus- 728; Rivers v. Olmstead. 66 la. 1S6; 
 
 sion of the subject of co-parties and Hyatt v. Dusenbury, 1 Silvernail (N. 
 
 notice, see ante, §§ 139, 144, 156, 162, 163. Y.), 475.
 
 DISMISSAL AND REINSTATEMENT. 449 
 
 It is clear that there can be no right of appeal in a stranger, or 
 in one who has no substantial interest in the controversy. We 
 suppose, however, that where the question of interest or no 
 interest is an original one, where it goes to the merits and 
 requires an examination of the whole record, the court will not 
 decide it upon a motion to dismiss the appeal. 
 
 § 527. Failure to file a Bond— Although a bond is not usually 
 essential to the effectiveness of an appeal, yet there are cases 
 in which a bond is indispensably essential. 1 Whether a bond 
 is essential to the appeal or is merely necessary to secure a 
 stay of proceedings is to be determined from the provisions of 
 the statute. Where a bond is required as a part of the proced- 
 ure and as necessary to the perfection of an appeal, it must be 
 filed within the time prescribed or the appeal may be dismissed 
 on motion. 2 A party who assumes to file a bond in compliance 
 w r ith the requirements of the law occupies a very different posi- 
 tion from one who makes no attempt to file a bond. If a bond 
 is filed, and it appears to have been filed in conformity to the 
 requirements of the law, it will confer jurisdiction of the appeal 
 although it may be radically defective. The statute provides 
 that appeals shall not be dismissed for informalities or defects 
 in a bond, and provides, also, that the appellant shall be given 
 a reasonable time in which to file a new bond. 3 These pro- 
 visions, by the clearest implication, vest jurisdiction in the ap- 
 pellate tribunal, since they provide for action by that tribunal in 
 cases where the bond is defective, and, upon the familiar rule 
 that the power to decide is jurisdiction, there can be no doubt 
 that jurisdiction attaches, although the bond may be insufficient. 4 
 
 1 Ante, §§ 247,248, and authorities v. Nye, 90 N. C. 11; Hemphill v. Black, 
 cited. 90 N. C. 14; Perkins v. Bates, 61 Tex. 
 
 2 In addition to the authorities re- 190; Bellegradef. San Francisco Bridge 
 ferred to in the paragraphs designated Co., So Cal. 61, 22 Pac. Rep. 57; Nelson 
 in the preceding note may be cited the v. Tenney, "3 N. Y. 616. 
 following: Clelland v. Tanner, 8 Col. s R. S. 1SS1, § 657. 
 
 252; Boyden v. Williams, 92 N. C. 546; * Fischer v. Langbein, 103 N. Y. 84. 
 
 Eshon v. Chowan Co., 95 N. C. 75; See ante, "Appellate Jurisdiction," 
 
 Putnam v. Boyer, 140 Mass. 235; Tur- Chapter II. 
 ner v. Quinn, 92 N. C. 501; McMillan 
 
 29
 
 450 APPELLATE PROCEDURE. 
 
 The cases declare the rule as we have stated it even where 
 there is no such statute as ours. 1 
 
 § 528. Two Appeals — Upon the general principle illustrated in 
 the man) r cases which hold that a party can not prosecute a 
 suit to review a judgment and an appeal to reverse it at the 
 same time, it must be held that a party can not prosecute two 
 appeals in the same case and against the same judgment. The 
 prosecution of the second appeal will not be permitted, but an 
 order dismissing it will be granted upon motion. 2 In cases 
 where a motion is grounded upon the fact that the appellant is 
 attempting to prosecute two appeals in the same case, it is 
 proper to hear evidence dehors the record. We have said that 
 a motion to dismiss is appropriate because our cases assert that 
 such an issue may be made by a plea or by a motion as the 
 party may elect. 3 
 
 § 529. Appeal from Judgment rendered in obedience to the Man- 
 date Remanding the Case — An appeal from a judgment rendered 
 in obedience to the mandate of the appellate tribunal may be 
 dismissed on motion. This conclusion results from the principles 
 declared and the authorities cited in another chapter. 4 Where 
 the appellate tribunal specifically directs the judgment that the 
 trial court shall enter, the latter court does not in entering the 
 judgment directed do anything more, in contemplation of law, 
 than enter the judgment of the higher court. As the judgment 
 entered in such a case is, in effect, the judgment of the appel- 
 late tribunal, to permit a second appeal would be to affirm that 
 an appeal will lie from the judgment of the appellate tribunal, 
 and this no precedent will justify nor any principle warrant. 5 
 
 'State v. Thompson, Si Mo. 163; * Post, " The Judgment on Appeal," 
 
 Jacobs v. Morrow, 21 Neb. 233. Chapter XXIX. 
 
 3 In re Young, 22 Wis. 205; Hop- 5 Mackall v. Richards, 116 U. S. 45; 
 
 kins v. Hopkins, 39 Wis. 165; Moe n. Stewart v. Salamon, 97 U. S. 361; 
 
 Moe, 39 Wis. 30S; Wisconsin, etc., Co. Humphrey v. Baker, 103 U. S. 736, 
 
 v. Plumer, 4^ Wis. 668. Kimberly v. Arms Co., 40 Fed. Rep. 
 
 3 Buntin v. Hooper, 59 Ind. 5S9; Day 548. See, generally, Shillern v. May. 6 
 
 v. School City of Huntington, 7S Ind. Cranch. 267; Ex parte Story, 12 Pet. 
 
 280. See, " l'i.-.-i'lii.^s of the Appellee," 339; Ex parte Sibbald, 12 Pet. 4SS. 
 ante, Chapter XXIII.
 
 DISMISSAL AND REINSTATEMENT. 451 
 
 § 530. Bill of Review — In a former chapter we stated the gen- 
 eral rule to be that a party can not prosecute a suit to review a 
 judgment and also prosecute an appeal to reverse the same judg- 
 ment. 1 That this is the general rule is beyond controversy, and 
 it is likewise settled that, where there is a binding election by 
 prosecuting proceedings to review, the court will, upon the 
 proper showing and appropriate application, dismiss the appeal. 2 
 But there is an exception to the general rule that a party can 
 not appeal and prosecute a suit to review. A party may, after 
 an unsuccessful appeal, prosecute a suit to review, but the suit 
 must be upon the ground of newly discovered matter, 3 and 
 questions before the court on appeal, and there decided, can not 
 be again litigated. 4 
 
 § 531. Parties to the Motion to Dismiss — The motion to dismiss 
 must ordinarily be made by one who has a right, as a party or 
 privy, to have the appeal dismissed. But the court may, no 
 doubt, entertain a motion even from a stranger, where the 
 ground of the motion is the want of jurisdiction or the like, 
 for, as we have seen, the court may dismiss an appeal of its 
 own motion. A stranger can not, however, be heard to insist 
 upon a dismissal on the ground that there is an insufficient 
 notice, a defect of parties, or the like, since such grounds can 
 
 1 Ante, § 149; Humphrey v. Baker, is a suit to review, and an appeal, and 
 103 U. S. 736; Buscher v. Knapp, 107 so it is held. Davis v. Binford, 70 Ind. 
 Ind. 340; Traders Ins. Co. v. Carpen- 44; Indiana, etc., Co. v. Routledge, 7 
 ter, 85 Ind. 350; Whiting v. Bank, 13 Ind. 25. 
 
 Pet. 6; Burlington v. Harvey, 95 U. S. 3 Hill v. Roach, 72 Ind. 57; Barbon 
 
 99; Shelton t'.Van Kleeck, 106 U.S. 532; v. Searle, 1 Vern. 416; United States 
 
 Ricker v. Powell, 100 U. S. 104. A v. Knight, 1 Black. 484, 489; Bentley v. 
 
 party may appeal from a judgment ren- Coyne, 4 Wall. 509; Providence Rubber 
 
 dered in a suit to review. Brown v. Co. v. Goodyear, 9 Wall. 7S8, S05; Da- 
 
 Keyser, 53 Ind. 85; Keepfer v. Force, vis v. Speiden, 104 U. S. S3, 87. 
 
 86 Ind. 81. * Kimberly v. Arms, 40 Fed. Rep. 548; 
 
 2 Hill v. Roach, 72 Ind. 57. In the Whiting v. Bank, 13 Pet. 6; Bumngton 
 case cited it was said: " It is unques- v. Harvey, 95 U. S. 99; Shelton v. Van 
 tionably true that in this State a com- Kleeck, 106 U. S. 532; Ricker v. Powell, 
 plaint for the review of a judgment for 100 U. S. 104. These cases show that 
 error of law in the proceedings will not where a matter, whether of fact or of 
 lie after the judgment has been affirmed law, has been fully considered and de- 
 upon appeal to this court." The rule cided on appeal, it can not be again 
 must be, in effect, the same where there brought into litigation.
 
 452 APPELLATE PROCEDURE. 
 
 only be urged by parties to the appeal. 1 If a joint motion to 
 dismiss is made by several parties it will be unavailing, unless 
 it is well taken as to all who unite in it. 2 
 
 § 532. Requisites of the Motion — The motion to dismiss the ap- 
 peal should be in writing. We are aware that in a case de- 
 cided some years ago it was held that such a motion need not 
 be in writing, 3 but we regard that decision as erroneous even 
 under the rules of practice as they then existed, for a motion 
 is a pleading and pleadings should be in writing ; it is, how- 
 ever, quite clear that under the rules now in force the motion 
 must be a written one. 1 The motion should specify with rea- 
 sonable certainty the grounds upon which it is based. 5 The 
 motion is heard, as motions generally are, upon the papers, 
 affidavits and briefs of the parties, for so the rules of court 
 provide. 
 
 § 533. Notice of the Motion to Dismiss — Even in the absence of 
 an express rule of court upon the subject, it is clear, on principle 
 and authority, that the appellant is entitled to notice of the mo- 
 tion to dismiss.'"' It would be unjust to require parties to be 
 constantly on the watch for movements by their adversaries in 
 a court whose jurisdiction extends over the whole State. But 
 the rule of court settles, and rightly settles, the question ; notice 
 must be given. 7 Notice may be served upon the adverse party 
 or his attorney of record. 8 Where a special motion, such as a 
 motion to dismiss, is made and notice given, the party is fully 
 
 1 Watertown National Bank v. Hola- motions shall be in writing. Rule XII. 
 
 bird (S. Dak.), 49 N. W. Rep. 98. Newman v. Riser, 128 Ind. 258. 
 
 3 State v. Cunningham, 101 Ind. 461. 5 Bilyeu v. Smith, iS Oregon, 335,22 
 An appeal may be dismissed as to one Pac. Rep. 1073. 
 
 party without affecting the rights of 6 Dyer v. Brady (Cal.), 26 Pac. Rep. 
 
 other parlies. Miller v. Arnold, 65 511; Town of Enterprise v. State, 24 
 
 Ind. 488. Fla. 152; Loucheine v. Strouse, 46 Wis. 
 
 <>tten v. Divilhiss, 60 Ind. 37. It 4S7. 
 
 is evident that the case cited did not 7 Dick v. Mullins, 128 Ind. 365, 27 N. 
 
 receive very careful consideration and E. Rep. 741; Hargrove v. Washington, 
 
 thai there are other errors and incon- 32 So. Car. 5S4, 10 S. E. Rep. 616. 
 
 sistencies in the opinion than the one 8 Ashe v. Glenn, 33 So. Car. 606, 12 
 
 mentioned in the text. S. E. Rep. 423. 
 
 4 The rule- of court require thai such
 
 DISMISSAL AND REINSTATEMENT. 453 
 
 in court to answer the motion and is bound to take notice of 
 the disposition made of it. 1 
 
 § 534. Dismissal by the Appellant — An appellant may, of course, 
 dismiss his appeal if it will not prejudice the rights of the ap- 
 pellee. But broad as is the right of the appellant to dismiss, he 
 will not be permitted to exercise it to the manifest injury of the 
 appellee. 2 It is difficult to conceive a case where a dismissal 
 would so materially prejudice the appellee as to preclude the 
 appellant from dismissing, except a case where there is an as- 
 signment of cross-errors, although it may be possible that there 
 are other cases where a right to dismiss can not be exercised, 
 because its effect would be unjustly prejudicial to the appellee. 
 Where there is an assignment of cross-errors the appellant can 
 not dismiss the appeal so effectively as to carry the appellee's 
 case out of court. 3 The appellee may, of course, consent to 
 such a dismissal, but it can not be rightfully ordered over his 
 objection. 
 
 § 535. Effect of a Dismissal — The effect of the dismissal of an 
 appeal is, as a general rule, to leave the case as if there had 
 been no appeal. 4 An order of dismissal does not preclude a 
 second appeal. But a dismissal will not authorize a second 
 appeal after the time limited for appealing. This is so for the 
 reason that a party can not successfully plead his own laches 
 as an excuse for not perfecting the appeal within the time pre- 
 scribed by law. 5 The dismissal of the appeal takes the case 
 and the parties out of court, and the refiling of the transcript is 
 the filing of a new appeal. But where notice is given of a 
 
 1 This is the doctrine declared in App.538; Lawrence v. Wood, 122 Ind. 
 
 Heaton v. Knowlton, 65 Ind. 255. 452, 24 N. E. Rep. 159; Corinne, etc., Co. 
 
 * State v. Moriarity, 20 Iowa, 595. v. Johnston, 5 Utah, 147; Wiseman v. 
 
 3 Feder v. Field, 117 Ind. 3S6. Mitchell Co., 104 N. C. 330, 10 S. E. 
 
 4 Wallace v. Carter, 32 So. Car. 314, Rep. 481; Leary v. Territory, 3 Wash. 
 11 S. E. Rep. 97; Fagan v. McTier, 81 Ty. 13, 13 Pac. Rep. 665; Varn w.Will- 
 Ga. 73, 6 S. E. Rep. 177. iams, 30 So. Car. 608, 10 S. E. Rep. 390. 
 
 5 State v. Ferguson, 42 La. Ann. 643, 6 In the case of Board v. Brown, 14 
 7 So. Rep. 670; Bunting v. Saltz, 84 Ind. 191, the court said: "Upon the 
 Cal. 168, 22 Pac. Rep. 1132, S. C. 24 dismissal of an appeal, the parties are 
 Pac. Rep. 167; Stenzel v. Sims, 25 111. no longer in court, and the refiling of
 
 APPELLATE PROCEDURE. 
 
 motion to reinstate and upon that notice reinstatement is or- 
 dered there is nothing more than the continuation of the orig- 
 inal appeal. 
 
 § 536. Withdrawing the Transcript — It has long been the prac 
 tice to permit an appellant, upon leave asked, to withdraw the 
 transcript. The right to withdraw a transcript is not an abso- 
 lute one, but the leave to withdraw is granted as a matter of 
 favor. It is, therefore, discretionary with the court to grant 
 or refuse leave to withdraw the transcript after the dismissal of 
 the appeal. It is, indeed, held by the Supreme Court of the 
 United States that the transcript becomes a record of the higher 
 court and can not be withdrawn. 1 
 
 § 537. Reinstatement — The Power to Order — An appellate tri- 
 bunal by virtue of the inherent power which resides in courts 
 of such a high rank may undoubtedly reinstate an appeal wher- 
 ever justice requires it. The statute assumes to confer upon 
 the court this power, but it needs no statute to invest the court 
 with power over its own judgments and records, for that power 
 exists as an inherent attribute in the court as one of the organs 
 of sovereignty. The power is in the main a discretionary one, 2 
 so that it is not hedged in by fixed rules, although there are 
 rules to which the courts usually yield obedience. 
 
 § 538. Cause must be Shown — The reinstatement of an appeal, 
 no matter for what reason the order of dismissal is granted, is 
 not a matter of course. Courts ordinarily require that satisfac- 
 tory catise be appropriately shown. One who has negligently 
 and purposely violated the rules of the court, or has failed to do 
 what the law requires, can not ask a reinstatement as a matter 
 of right. 3 
 
 the record is the institution of a new Rep. 783; Gulf, etc., Co. v. Edwards, 72 
 
 suit, at least so far as to require that Texas, 303, 10 S.W. Rep. 525; Thomas 
 
 notice shall he given to the defendant." v. Kelley, 27 111. App. 491; Bullock v. 
 
 1 Cheney 7'. Hughes, 13S U. S. 403, 11 Cook, 2S Mo. App. 222; Morton v. 
 Sup. Ct. Rep. 303. Green, 104 N. C.400, 10 S. E. Rep. 470; 
 
 2 Panton 7'. Manley, 89 111. 458; State Whitehurst v. Pettipher, 105 N. C. 39, 
 v. Foster, 44 N.J. L. 378. 10 S. E. Rep.S57; Stephens 7'. Koonce, 
 
 8 Taylor v. State, 82 Ga. 57s, 9 S. E. 106 N. C. 255, 10 S. E. Rep. 996; Griffin
 
 DISMISSAL AND REINSTATEMENT. 455 
 
 § 539. Notice of the Motion to Reinstate — A motion to reinstate 
 can not be heard unless proper notice has been given. The 
 motion is a special one, and falls within the rule that all special 
 or collateral motions require notice. But there is an especially 
 strong reason for requiring notice of an application to reinstate, 
 and that is this : The effect of a dismissal is to carry the case 
 and the parties out of court, 1 and they can only be brought into 
 court upon notice. Where notice is duly given, the parties are 
 in court as to the matters presented by the motion with all their 
 incidents, and they must take notice of the action of the court 
 respecting the motion. If the application can not be heard at 
 the time designated in the motion, it will be heard, without any 
 new or additional notice, at a subsequent time. 2 
 
 § 540. Practice on Motion to Reinstate — A motion to reinstate 
 is heard upon the papers, affidavits and written briefs. The 
 papers are to be filed with the clerk who will transmit them to 
 the court. The notice may be served upon the adverse party or 
 some one of his attorneys of record. The motion should be 
 placed on file with the necessary affidavits and briefs at the 
 time of giving the notice. The adverse party is entitled to a 
 reasonable time, — ten days, — in which to respond to the mo- 
 tion, so that all the papers should be on file for that length of 
 time before the date appointed for the hearing. 
 
 v. Nelson, 106 N. C. 235, 11 S. E. Rep. 774, 8 Sup. Ct. Rep. 1395; Moore v. 
 
 414. The cases which follow indicate Brown, Si Ga. 10, 6 S. E. Rep. 833; 
 
 what causes are not sufficient to secure Stoddard v. Roland, 31 So. Car. 342, 
 
 the reinstatement of an appeal. Jones 600,9 s. E. Rep. 741; Smith ». S'um- 
 
 x\ State, So Ga. 640, 6 S. E. Rep. 172; merfield, 107 N. C. 5S0. 12 S. E. Rep. 
 
 Evans v. Kilhy, 81 Ga. 27S, 7 S. E. Rep. 465. As to the effect of negligence, see 
 
 226; Rumsey, etc., Co. v. Baker, 33 Mo. Le Guen v. Gouverur, 1 Johns. Cases, 
 
 App. 239; Williams v. Jacksonville, etc., 436, 502; Duncan v. Lyon, 3 Johns. Ch. 
 
 Co., 25 Fla. 359, s So. Rep. 847; Har- 351; M'Vickar r.Wolcott, 4 Johns. 510; 
 
 mon v. Lexington, 32 So. Car. 5S3, 10 Ward v. Town of Southfield, 102 N. Y 
 
 S. E. Rep. 552. The cases which follow 2S7. See, generally, Peyton v. Kruger, 
 
 supply illustrations of what has been 77 Ind. 486; Johnson v. Herr, SS Ind. 
 
 regarded as sufficient cause. Tribble v. 2S0; Sharp v. Moffitt, 94 Ind. 240. 
 
 Poore, 28 So. Car. 565, 6 S. E. Rep. 577; ' Board v. Brown, 14 Ind. 191. 
 
 State v. Gaslin, 25 Neb. 71, 40 N. W. 2 Heaton v. Knowlton, 65 Ind. 255. 
 Rep. 601, Hunt v. Blackburn, 127 U. S.
 
 
 , CHAPTER XXVII. 
 
 THE EFFECT OF AN APPEAL. 
 
 § 541. An appeal removes the case § 545. Collateral or supplemental mat- 
 ters not covered by the appeal. 
 
 546. The judgment effective notwith- 
 standing the appeal. 
 
 547. Action upon the judgment not 
 barred by the appeal. 
 
 54S. Supplying omissions and cor- 
 recting the record after appeal. 
 549. A new record can not be made. 
 
 from the jurisdiction of the 
 
 trial court. 
 ^42. Appeal from an interlocutory 
 
 order does not completely oust 
 
 jurisdiction. 
 Illustrative cases. 
 What the appeal covers. 
 
 543- 
 544- 
 
 § 541. An Appeal removes the Case from the Jurisdiction of the 
 Trial Court — The overwhelming weight of authority is that an 
 appeal, properly perfected, removes a case wholly and abso- 
 lutely from the trial court and places it in the higher tribunal. 1 
 
 1 Allen v. Allen, 80 Ala. 154; Boyn- 
 ton 7'. Foster, 7 Metcf. 415; Bryan v. 
 Bery, 8 Cal. 130; Baggs v. Smith, 53 
 Cal. 8S; Livermore v. Cambell, 52 
 Cal. 76; Burgess v. Donoghue (Mo.), 2 
 s W. Rep. 303; Elgin Lumber Co. v. 
 Langman, 23 111. App. 250; State v. 
 Duffel, 41 La. Ann. 958; Stephens v. 
 Koonce, 106 N. C. 222, 10 S. E. Rep. 
 996; Kimberly v. Arms, 40 Fed. Rep. 
 54S; Ensminger v. Powers, 10S V . S. 
 292; Pierson v. McCahill, 23 Cal. 249, 
 2^3; McGarrahan v. New Idra Co., 49 
 Cal. 331,345; Mitchell v. United States, 
 9 Pet. 711; Saltmarsh r.Tuthill, 12 How. 
 U.S.) 587; Hronson v. La Crosse, etc., 
 Co., 1 Wall. 405; Stewart V. Stringer. 41 
 Mm. 400, S. C. <■)- Ani. Dec. 27S; Helm 
 - Boone, 6 J. J. Marsh. 351, S. C. 22 
 Am. Dec. 75; Planter's Bank v. Neely, 
 7 How. (Miss.) So, S. C. 40 Am. 1>. c. 
 51; M'Laughlin v. Janney, 6 Gratt. 
 
 (Va.) 609; McGlaughlin v. O'Rourke, 
 12 Iowa, 459; Ladd v. Couzins, 35 Mo. 
 513; State v. Kolsem (Ind.), Dec. 19. 
 1891. The only case which opposes 
 the doctrine of the cases cited that we 
 have been able to find is that of Indi- 
 ana, etc., Co. V. McBroom, 103 Ind. 310. 
 The decision in that case, we venture to 
 say, is not sound. It is antagonistic to 
 the general principle declared by the 
 cases referred to above, and to the doc- 
 trine of the text writers. 1 Black on 
 Judgments, § 243. It is opposed to the 
 established doctrine that a party can 
 not pursue two remedies at the same 
 time. Kimberly v. Arms, supra; Ens- 
 minger v. Powers, 10S U. S. 292, 302; 
 Traders Ins. Co. v. Carpenter, S5 Ind. 
 350; Harvey r. Fink, in Ind. 249; Kle- 
 bar v. Town of Corydon, 80 Ind. 95, and 
 - eited. If a party can obtain a 
 new trial while an appeal is pending. 
 
 (456)
 
 THE EFFECT OF AN APPEAL. 457 
 
 It is difficult to conceive how it could be otherwise, since it is 
 not possible that two courts can have authority over a single 
 case at the same time. The case must, of invincible necessity, 
 be in the higher court or in the lower court, for it can not be in 
 both courts. As the authority of the inferior yields to the su- 
 perior, the case is, for all purposes connected with the considera- 
 tion and decision of the questions involved in it, completely 
 within the jurisdiction of the appellate tribunal. The right to 
 order process to enforce the judgment remains in the trial court 
 where there is no supersedeas or order staying proceedings, 
 but all jurisdiction over questions involved in the litigation and 
 embraced by the judgment terminates with the removal of the 
 case to the appellate tribunal. The loss of jurisdiction is so 
 complete as to require a party who seeks relief from any error, 
 except an error in making the record or in omitting something 
 from the record, to apply to the higher court. After the cause 
 leaves the lower court it can not act upon any question involved 
 in the appeal. Where the appeal is made to operate as a 
 supersedeas, as we have elsewhere shown, it operates not only 
 to divest the jurisdiction of the trial court but also to preclude 
 the trial court, or the parties, from taking steps to enforce the 
 judgment. 1 
 
 § 542. Appeal from an Interlocutory Order does not completely 
 onst Jurisdiction — Where the law permits an appeal from an 
 interlocutory judgment or an intermediate order, and the ap- 
 peal is from such an order or judgment, only part of the case 
 is removed by appeal from the trial court to the appellate tri- 
 bunal. 2 But the part of the case appealed goes completely to 
 the higher court. If, for instance, an appeal is duly taken from 
 an order appointing a receiver, only so much of the case as af- 
 
 the effect is to terminate the case in the Karrich, 15 Iowa. 444; Skinner v. Bland, 
 
 higher court, since nothing is left for 87 N. C. 168; Penrice v. Wallis, 37 
 
 decision. There is no longer any con- Miss. 172. See Stay of Proceedings, 
 
 troverted question. The effect of such Supersedeas, Appeal Bond, 
 
 a doctrine is to practically make the 2 Jewett v. Albany City Bank, 1 
 
 superior tribunal yield to the inferior. Clark (N. Y.), 59; Atlantic Ins. Co. v. 
 
 1 Coates v. Wilkes, 94 N. C. 174; Lemar, 10 Paige, 505; Deas z>.Thorne, 
 
 Keyser v. Farr, 105 U. S. 265; Stone 3 John. 543. 
 v. Spellman, 16 Texas, 432; Levi v.
 
 158 APPELLATE PROCEDURE. 
 
 fects that order is carried out of the jurisdiction of the trial 
 court, and, as it retains jurisdiction of the principal issues, it 
 may proceed to hear and determine them, but it certainly could 
 not hear or decide the branch of the case removed by the ap- 
 peal to the higher court. l\\ to again illustrate, suit should be 
 brought to foreclose a mortgage and for the appointment of a 
 receiver, and the court should enter an interlocutory order ap- 
 pointing a receiver, a proper appeal would carry up the case so 
 far as it involved the order, but it would leave the part of the 
 case involved in the issue made upon the mortgage in the trial 
 court. It is quite clear, upon principle and authority, that what 
 is effectively appealed leaves the jurisdiction of the one court 
 and completely enters that of the other. 
 
 § 543. Illustrative Cases — The scope and effect of the general 
 rule that the appeal divests the jurisdiction of the trial court, 
 are, of course, illustrated in the cases already referred to, but it 
 may serve to exhibit the rule in a clearer light to refer to par- 
 ticular instances of its application. After an appeal has been 
 taken the trial court can not make a supplemental decree. 1 It 
 has been held that a motion to retax costs can not be made after 
 the appeal, 2 but it may be doubted whether this is not carrying 
 the doctrine too far, although there is reason supporting it. 
 Where the amount or the right to costs is the question involved 
 in the appeal, and requires the judgment of the appellate tri- 
 bunal, then the trial court has no power to adjudicate upon it ; 
 but where the question comes up as a distinct, supplemental or 
 collateral matter, we can see no reason why it may not be de- 
 cided, pending the appeal, by the trial court. It has been held 
 that an appeal from an order refusing to set aside a settlement 
 of an administrator so completely carries the case into the ap- 
 pellate tribunal that no trial court can assume jurisdiction of 
 the same subject. 3 Where a decree is entered in a suit for di- 
 vorce, and an appeal is perfected, alimony can not, as it has 
 
 1 Real v. Chase. 31 Mich. 490. First National Bank, 30 la. 191; Car- 
 
 2 Levi v. Karrick, 15 Iowa, 444; Mc- michael v. Vandebur, 51 la. 525. 
 Glaughlin v. O'Rourke, 12 la. 459. For 3 Townsend v. Townsend,6o Mo. 246. 
 discussions and illustrations of the See, generally, State v. Musick, 71 Mo. 
 general rule see the cases of Turner v. 401. 

 
 THE EFFECT OF AN APPEAL. 459 
 
 been held, be allowed during the pendency of the appeal by the 
 trial court. 1 After an appeal in attachment proceedings the 
 trial court has no jurisdiction to order the attachment dis- 
 charged. In a case where an injunction is finally denied, the 
 trial court's jurisdiction is taken away by the appeal, and it can 
 not award an injunction 2 in the same proceeding, unless the 
 injunction is asked as to some distinctly independent or supple- 
 mental matter. Without further discussion of particular in- 
 stances, we pass from the immediate topic with the general 
 statement that in whatever phase the question has been pre- 
 sented the ruling has been that where there is a general appeal 
 the authority over the questions involved in and covered by the 
 appeal is transferred to the higher court. 3 
 
 § 544. What the Appeal Covers — The appeal when prosecuted 
 generally brings up the whole case, 4 although not all the ques- 
 tions may be so presented as to entitle the appellant to a review 
 of the rulings upon them. There is a clear and important dis 
 tinction between bringing up questions and presenting questions 
 for review. A party may not properly present questions, but 
 if they are within the issues they are covered by a general ap- 
 peal. This is evident. If the judgment had not been appealed 
 from it would, upon a familiar elementary principle, have so 
 completely terminated and adjudicated all the questions em- 
 braced within the issues as to conclude the parties. The ap- 
 peal does not take from the judgment its chief and most valua- 
 ble characteristic, — that of terminating litigation by a final and 
 
 1 Lewis v. Lewis, 20 Mo. App. 546. involved in the case carried up bv the 
 Said the court in the case cited: "After appeal. 
 
 the appeal, the circuit court had no such 3 Western, etc., Co. v. State, 69 Ga. 
 
 jurisdiction." Cralle v. Cralle, 81 Va. 524; Skinner v. Blair, 87 N. C. 168; 
 
 773; Pasour v. Lineberger, 90 N. C. Keyser v. Farr, 105 U. S. 265; Stewart 
 
 159. v. Taylor, 68 Cal. 5; Whaley v. Charles- 
 
 2 Spears v. Matthews, 66 N. Y. 127. ton, S So. Car. 344; Harrison v. Trader, 
 We have qualified the rule stated for 29 Ark. S5. 
 
 the reason that, as will be presently 4 Palmer v. Rogers, 70 la. 3S1; Clair 
 
 shown, the trial court maj r make orders v. Terhune, ■$$ N. J. Eq.336; Bledsoe v. 
 
 relating to distinctly independent sup- Nixon, 69 N. C. Si; Smith v. Cooper, 
 
 plemental or collateral matters, al- 21 Ga. 359; Woodrum v. Kirkpatrick, 2 
 
 though it can make no orders nor de- Swan (Tenn.), 217. 
 clare any decisions upon the questions
 
 460 APPELLATE PROCEDURE. 
 
 conclusive adjudication ; on the contrary, the judgment retains 
 that characteristic and possesses that effect until reversed. A 
 general 1 appeal, therefore, necessarily removes from the juris- 
 diction of the trial court all questions concluded by its judg- 
 ment. 
 
 § 545. Collateral or Supplemental matters not covered by the Ap- 
 peal — Matters independent of and distinct from the questions 
 involved in the appeal are not taken from the jurisdiction of the 
 trial court. Such matters as the appeal does not cover are 
 purely collateral or supplemental, lying outside of the issues 
 framed in the case, or arising subsequent to the delivery of the 
 judgment from which the appeal is prosecuted. The general 
 rule that a case leaves the jurisdiction of the trial court when 
 an appeal is perfected is not impinged by holding that 
 purely collateral or supplemental matters are left under the 
 control of the trial court, notwithstanding the loss of jurisdic- 
 tion over the case taken to the higher court. A reference to 
 some of the instances where power over collateral or supple- 
 mental matters was held to remain in the trial court will give a 
 clearer conception of the law upon the subject than general 
 words can do. Where property is sold pursuant to a decree of 
 the court, the pendency of an appeal will not preclude the trial 
 court from taking steps to coerce payment from the purchaser. 2 
 A pending appeal does not take from the trial court authority 
 to compel a ministerial officer to perform a duty, although the 
 dutv may be collaterally connected with matters embraced in 
 the appeal. 3 Where the duties of a receiver have fully termi- 
 nated, or where he is guilty of a breach of duty, the trial court 
 may, as we suppose, make the necessary order in a case where 
 the receivership is merely ancillary, but where the very ques- 
 tion involved in the appeal is the conduct of the receiver, the 
 trial court can not rule upon his conduct, except where the con- 
 duct relates to matters subsequent to the appeal. 1 The trial 
 
 1 We employ the term, "general this is the rule, but it is not entirely 
 
 appeal," for want of a better, to desig- without exceptions. 
 
 nate oases where the appeal is not from * State v. Houston, 35 La. Ann. 236. 
 
 part only of a case. Ordinarily an ap- s State v. Clark. ^^ La. Ann. 422. 
 
 peal brings up the whole controversy; * In Baughman v. Calveras, 72 Cal.
 
 THE EFFECT OF AN APPEAL. 461 
 
 court may entertain a motion to set aside a sale of land made 
 under its order, where the sale is purely collateral and inci- 
 dental. 1 If a fund is left in the hands of the trial court, or in 
 the hands of one of its officers or agents, it may make orders 
 for its investment or other orders of a like general nature. 2 An 
 appeal does not cover matters not fairly embraced within the 
 issues, although such matters may grow out of or be connected 
 with the same general subject. 3 But care is required in the ap- 
 plication of the subsidiary rule just stated to prevent a violation 
 of the wide reaching and salutary principle that what might 
 rightfully have been litigated in the case is regarded as having 
 been litigated and determined. If the general principle that a 
 judgment is final and conclusive as to the particular controversy 
 is not adhered to, great evil and confusion of a perplexing and 
 vicious effect would inevitably result, inasmuch as the repose 
 of society would be disturbed by vexatious and prolonged liti- 
 gation and different decisions might be made in the same case. 
 The true rule is that whatever the judgment below legitimately 
 covers the appeal embraces. 
 
 § 546. The Judgment effective notwithstanding the Appeal — The 
 
 decisions in this State have steadily asserted the doctrine that 
 the judgment is not affected by the appeal further than that pro- 
 ceedings are stayed in cases where the proper bond is filed. 
 In one case it was held that a party who had appealed from a 
 judgment refusing to permit the probate of a will could prose- 
 cute an action notwithstanding the appeal, although it proceeded 
 upon the theory that the will involved in the appeal was in- 
 valid. 4 In another case a judgment of eviction was rendered, 
 and it was held that the action upon the covenants of the deed 
 
 572, the court went much further than 3 State v. Davey, 39 La. Ann. 507, 2 
 
 the text. As to matters occurring after So. Rep. 44. 
 
 the appeal is perfected, State v. Ham- * Burton v. Burton, 2S Ind. 342. In 
 
 mill, 6 La. Ann. 257. this case the court said: "The only 
 
 1 Moore v. Jordan, 65 Texas, 395. effect of the appeal is to stay execution 
 
 2 Goddard v. Ordway, 94 U. S. 672; upon the judgment from which the ap- 
 Hinson v. Adrain, 91 N. C.372; Spring peal was taken. In all other respects 
 i\ South Carolina Ins. Co., 6 Wheat, the judgment, until annulled or re- 
 519. versed, is binding upon the parties as 
 
 to every question directly presented."
 
 462 
 
 APPELLA 1 E PROCEDURE. 
 
 was maintainable inasmuch as the judgment, although appealed 
 from, was an ouster. 1 Still stronger doctrine was asserted in a 
 casr in which it was held that a party to whom land was set 
 off in a partition proceeding might maintain an action to recover 
 possession of the land although an appeal from the judgment 
 in the partition proceedings was pending. 2 It has been held 
 in many cases that an appeal does not suspend or destroy the 
 effect of an injunction decreed in the suit from which the ap- 
 peal is prosecuted. 3 The general conclusion to which the au- 
 thorities with substantial unanimity lead is, that the appeal, even 
 where a supersedeas is granted, suspends the enforcement of 
 the judgment and leaves the case where the judgment from 
 which the appeal is prosecuted placed it. 4 
 
 § 547. Action upon the Judgment not barred by an Appeal — It 
 
 has long been the doctrine of our court that an appeal does not 
 bar an action upon the judgment. 5 This question is one upon 
 
 1 Burton v. Reeds, 20 Ind. 87. See 
 Bryan v. Scholl, 109 Ind. 367; Ander- 
 son, etc., v. Thompson, S7 Ind. 278. 
 
 : Randies v. Rahdies, 67 Ind. 434. 
 
 3 United States v. Knox County, 39 
 Fed. Rep. 757; State v. Dillon, 96 Mo. 
 56, S S. W. Rep. 781; Central Union Tel. 
 Co. v. State, no Ind. 203; Hawkins v. 
 State, 126 Ind. 294; State v. Chase, 41 
 Ind. 356; Heinlen v. Cross, 63 Cal. 44; 
 Sixth Avenue, etc., Co. V. Gilbert, etc., 
 Co., 71 N.Y.430; Robertson v. David- 
 son, 14 Minn. 554; Graves -.•. Maguire, 6 
 Paige Ch. 379; Clark v. Clark, 7 Paige 
 Ch.607; Burr v. Burr, 10 Paige Ch. 166; 
 First National Bank v. Rogers. 13 
 Minn. 407; Cook v. Dickerson, 1 Duer. 
 ('179; Burrall v. Vanderbilt, 1 Bosw. 
 r '/>7- 643; Hicks v. Michel, 15 Cal. 107; 
 ( >rtman v. Dixon, 9 Cal. 23; Scheible v. 
 Slagle, S9 Ind. 323, 328. In Padgett 
 State, 93 Ind. 396, the general doctrine 
 was thus stated: " A judgment is not 
 changed or impaired by an appeal, ir 
 remains in full force." The cases of 
 Mull: McKnight, 67 Ind. 525. Walls 
 
 v. Palmer, 64 Ind. 493, and some of the 
 cases cited in the preceding notes, were 
 referred to. Exley v. Berryhill, 37 Minn. 
 182, 33 N.W. Rep. 567; Hey v. School- 
 ey, 7 Ohio, p. II, 48. 
 
 * Judge Thompson said, speaking for 
 the court, in Burgess v. Hitt, 21 Mo. 
 App. 313: "The judgment or order 
 appealed from stands, though the exe- 
 cution thereon is suspended during the 
 pendency of the appeal if a supersedeas 
 bond is granted." In the chapter on 
 Stay of Proceedings the rule is stated 
 and authorities are cited. The super- 
 sedeas it is held in State v. Emmerson, 
 71 Mo. 007. as it was in one of our own 
 cases referred to in the chapter just 
 designated, does not operate upon the 
 fees of the clerk. 
 
 5 The doctrine seems to have been 
 first directly asserted by our court in 
 Kill v. Comparet, 16 Ind. 107, and the 
 cases there relied on were Cole v Con- 
 nollv [6 Ala. 271. and Syndam v. Hoyt, 
 1 Dutch (N. J.), 230. The case of Nill 
 v. Comparet has been very often cited
 
 THE EFFECT OF AN APPEAL. 463 
 
 which there is much conflict among the authorities, but in this 
 State it is not an open question. This doctrine has been vigor- 
 ously opposed by some of the courts. The opponents to the 
 doctrine asserted by our court sustain their position by weighty 
 arguments, 1 but there is, however, much to be said in favor of 
 the rule established by our cases, and they are well supported 
 by authority. 
 
 § 548. Supplying Omissions and Correcting the Record after Ap- 
 peal — There is some diversity of opinion upon the question 
 whether the trial court can correct or amend its record after the 
 appeal has been perfected, some of the courts holding that the 
 divestiture of jurisdition is so complete as to take from the lower 
 court the authority to direct corrections or amendments of the 
 record. It seems clear to us that it is unduly stretching the gen- 
 eral rule to deny that authority, and that it is a violation of the 
 principle that a court may cause its record to speak the truth. 
 The court in directing amendments and corrections makes no 
 decision upon the questions involved in the appeal, nor does it, 
 indeed, decide any original question or review any questions 
 previously decided. It simply causes the record to truly and 
 correctly present the questions that it decided and to properly 
 exhibit the facts or pleadings upon which its decisions were 
 grounded. It does no more than correct the evidence of its de- 
 cisions and of the grounds upon which its decisions proceeded, 
 for in strict accuracy the record is only evidence of what took 
 place, although it is evidence of such high character as to im- 
 port absolute verity. The authorities support our statement that 
 the trial court may correct its record after appeal. 2 It is obvious 
 
 and approved. State v. Krug, 94 Ind. son, 86 Pa. St. 176. Some of the cases 
 
 366, 371; Central Union Tel. Co. v. make the right to sue on the judgment 
 
 State, no Ind. 203, and the Indiana dependent upon the question whether a 
 
 cases cited in the notes which follow, stay of proceedings has been secured. 
 
 An action can not be prosecuted upon Faber v. Hovey, 117 Mass. 107, S. C. 
 
 the same cause of action as that in- 19 Am. Rep. 39S; Taylor ->. Shew, 39 
 
 volved in the appealed case. Buchanan Cal. 536. 
 
 v. Logansport, etc., Co., 71 Ind. 265. 2 Reynolds v. Sutliff, 71 Iowa, 549; 
 1 Byrne v. Prather, 14 La. Ann. 653; State v. Delafield, 69 Wis. 264; Kelly 
 Atkins v. Wyman. 415 Me. 399; Camp- b. Chicago, etc., Co., 70 Wis. 335; Col- 
 bell v. Howard, 5 Mass. 376; Paine v. bert v. Rankin, 72 Cal. 197; National 
 Cowdin,i7 Pick. 142; Woodward t'.Car- City Bank v. NewYork,etc, Exchange,
 
 |i;i APPELLATE PROCEDURE. 
 
 that any other rule would practically prevent a true statement 
 and presentation of the case from being made, for bills of ex- 
 ceptions, record entries, and the like, could not be corrected if a 
 different rule should be enforced. The appellate tribunal has 
 power over its own records, but it can not make records for the 
 trial courts. Those records are made, in contemplation of law, 
 before the power of the appellate tribunal comes into existence. 
 
 § 549. A new Record can not be made — The theory upon which 
 amendments to records are made by the trial court, after an ap- 
 peal has been perfected, is that a new record is not made, but 
 that an existing record is so corrected as to bear true evidence 
 of what actually occurred. A trial court can not, after the case 
 is removed from its jurisdiction by appeal, make a record of 
 facts, evidence, or decisions, that did not exist prior to the ap- 
 peal. The record it corrects is one made before the appeal, 
 but not correctly or properly made. No new element can be 
 added by the trial court to the case carried up by appeal, but 
 it may cause the record to accurately exhibit the elements and 
 incidents of the case as it was actually presented and actually 
 decided. 1 It is evident, therefore, that where a record is changed 
 after the appeal is perfected, the change is unauthorized and 
 ineffective unless there was something actually existing in the 
 past which made a change necessary in order to a full or ac- 
 curate expression of the truth. 
 
 97 N. Y. 645; Chestnutt v. Pollard, 77 l Lamburth v. Dalton, 9 Nev. 64. 
 Texas, 86, 13 S. W. Rep. 352.
 
 CHAPTER XXVIII. 
 
 REHEARING. 
 
 55°- 
 
 Statutory' provisions. 
 
 55 1 - 
 
 Effect of filing a petition for re- 
 
 
 hearing 
 
 552- 
 
 Time — Computation of. 
 
 553- 
 
 All acts must be done within 
 
 
 the time fixed by law. 
 
 554- 
 
 Who may petition for a rehear- 
 
 555- 
 
 ing. 
 Office of the petition. 
 
 § 556. Rehearing not granted to enable 
 parties to secure a correction 
 of the transcript. 
 
 557. Original questions can not be 
 presented by a petition for re- 
 hearing. 
 
 558. A second petition for rehearing 
 will not be entertained. 
 
 559. Submitting the application. 
 
 560. Ruling on the petition. 
 
 561. Effect of granting the petition. 
 
 § 550. Statutory Provisions— The statute provides that either 
 party may file a petition for rehearing at any time within sixty 
 days after the determination of the cause. 1 We suppose that 
 the provision declaring that a party may petition for rehearing 
 is simply declaratory of a general rule of law, inasmuch as an 
 .appellate tribunal of high rank may, without an express grant 
 of power, entertain an application, during the term, to correct 
 errors into which it may have fallen. The limitation as to time 
 is, however, effective, and the uniform practice has been to 
 decline to entertain petitions not filed within the time pre- 
 scribed. 2 As the legislature has power to regulate matters of 
 procedure there can be no doubt as to the effectiveness of the 
 limitation upon parties. It is probably true that the legislature 
 can not preclude a judicial tribunal from correcting errors when 
 they are exhibited to it, 3 but the limitation as to the time within 
 which a petition for rehearing must be filed does not profess or 
 
 1 R. S. iSSi,§662. 31 HI- 3S5. The decision in the case 
 
 2 Board of Commissioners v. Brown, last cited is in harmony with the gen- 
 14 Ind. 191; Hutts v. Bowers, 77 Ind. eral rule that time is jurisdictional. 
 2ii, 213. Parties can not waive the s In re Jessup's Estate, 81 Cal. 40S, 
 time bv agreement. Bernhard v. Brown, 22 Pac. Rep. 102S. 
 
 30 
 
 (465)
 
 406 APPELLATE PROCEDURE. 
 
 attempt to abridge the inherent power of the court in that re- 
 gard. The statutory provision designating the time within 
 which a petition for a rehearing may be filed grants a right to 
 keep a case open beyond the term at which the judgment chal- 
 lenged was pronounced, 1 and changes the general rule that a 
 judgment can not be "altered after the expiration of the term at 
 which it was entered. It is evident from the provisions with 
 which that respecting the filing of a petition for a rehearing is 
 associated, that, in cases where a petition is duly filed within 
 the time prescribed, the case remains open until action is taken 
 upon the petition. 
 
 § 551. Effect of filing a Petition for Rehearing — Where a peti- 
 tion for rehearing is filed within the sixty days prescribed by 
 the statute it operates to prevent a certification of the judgment 
 to the trial court until it is disposed of by the higher court. 
 This conclusion rests upon the familiar principle that where a 
 motion or petition is filed which keeps the case open the judg- 
 ment is not a final one. The statute does not, in terms, declare 
 what shall be the effect of filing a petition, but, upon the prin- 
 ciple stated, it is clear that until an order or judgment is en- 
 tered disposing of the petition the case is not finally disposed 
 of and hence remains in the appellate tribunal. But independ- 
 ently of the rule stated the fair implication from the language 
 of the statute is that where there is a petition the clerk shall 
 not certify the case to the trial court until a decision overruling 
 the petition is pronounced, 2 so that when the language of the 
 
 1 Trustees v. Love, 29 111. App. 615; tition is overruled, the opinion of the 
 Gallagher v. Kilkeary, 29 111. App. 600. appellate tribunal must be transmitted 
 
 2 It is made the duty of the clerk of to the trial court. The statute says, 
 the Supreme Court to give notice of the "decisions and instructions shall be 
 the judgment of the court immediately certified to the court below," and the 
 after it is pronounced to the clerk of long continued and uniform practice 
 the trial court, but where there is a pe- has given this language a construction 
 tition he can not certify the opinion that can not now be disregarded. The 
 down until the case is finally disposed meaning thus assigned the statutory 
 ofbv the appellate tribunal. R. S. 1SS1, provision is that the opinion in full 
 §662. It may be added that where there shall be certified to the clerk of the trial 
 is no petition as weu as where the pe- court.
 
 REHEARING. 467 
 
 statute is considered, as it must be, in connection with the gen- 
 eral rule, all doubt is dissipated. 
 
 § 552. Time — Computation of — The sixty days prescribed is as- 
 certained by excluding the day on which the judgment assailed 
 by the decision was rendered, and including the day on which 
 the petition was filed. The statute prescribing a rule for the 
 computation of time is general in its character, and, as the de- 
 cisions show, has been applied to many questions of procedure. 1 
 The uniform practice has been to apply it to petitions for re- 
 hearing. As shown elsewhere, time is jurisdictional, and a 
 party who fails or neglects to file his petition within the time 
 limited will not be heard. 2 Doubtless, this general rule would 
 not apply if the party was wholly without fault, and his failure 
 to file his petition within the time described was owing to an 
 unavoidable accident, but to break the force of the general rule 
 a very strong and clear case must be made. 3 
 
 § 553. All acts must be done within the Time fixed by Law — In 
 accordance with the general rule elsewhere discussed, 4 all acts 
 essential to prepare the case for consideration upon the applica- 
 tion for a rehearing must be performed within the time limited 
 by law. The law, in fixing the time, means that all, and not 
 merely part, of the essential steps shall be taken within the 
 prescribed time, inasmuch as there is no authority for perform- 
 ing any of the required acts at a time other than that designated 
 by the statute. 5 The rule requiring full performance within the 
 time limited is indispensably necessary to the orderly adminis- 
 
 1 Hall's Safe and Lock Co. v. Rigby, tition in due time. Durgin v. Neal, 82 
 79 Ind. 150; Rodenwald v. Edwards, 77 Cal. 595, 599, 23 Pac. Rep. 375. But, 
 Ind. 221; Faure v. United States Ex- under our practice, it is sufficient to file 
 press Co., 23 Ind.4S; Noble v. Murphy, the petition within the time prescribed. 
 27 Ind. 502; State v. Thorn, 2S Ind. 3 Gough v. Root, 73 Wis. 32, 40 N. 
 306; Towell v. Hollweg, Si Ind. 154; W. Rep. 647, 41 N. W. Rep. 622. See, 
 Womack v. McAhren, 9 Ind. 6. If the generally, Williams v. Conger, 131 U. 
 last day falls on Sunday it may be ex- S. 390; Ogilvie v. Richardson, 14 Wis. 
 eluded. Hogue v. McClintock, 76 Ind. 157; Strickland v. Draughan, 91 N. C. 
 205. 103; Brant :•. Gallup, 117 111. 640. 
 
 2 The party applying for a rehearing * Ante, § 12S. 
 
 is bound to exercise diligence and to 5 Hawley v. Simmons, 101 111. 654; 
 take steps to insure the filing of his pe- Lacroix v. Camors, 34 La. Ann. 639.
 
 468 APPELLATE PROCEDURE. 
 
 tration of justice and to the harmony of appellate procedure. 1 
 The principle we have stated requires that the petitioner should 
 file his brief within sixty days, and that he can not, as of right, 
 file a brief after the expiration of that period. The rules, as 
 well as the practice of the court, require that the briefs shall be 
 filed within'the time designated, 2 although it is within the dis- 
 cretion of the court, upon due application, to extend the time 
 for filing briefs, but not to extend the time for filing the petition 
 except where cause is shown sufficient to call into exercise the 
 general equity powers of the court. 
 
 § 554. Who may Petition for a Rehearing — The fundamental 
 principle that only parties who are injured by a ruling can suc- 
 cessfully complain, requires that the party who petitions for a 
 rehearing should be one who is injured by the decision. It 
 will not avail him to show injury to some other person. It is, 
 therefore, correctly held that an appellee who is himself not 
 injured by a decision can not petition for a rehearing, although 
 some of the other appellees may be injured. 3 
 
 § 555. Office of the Petition— The office of a petition for a re- 
 hearing is to specifically present points for the consideration 
 of the court. A general statement that the court erred in the 
 conclusions asserted in its opinion is insufficient. 4 The petition 
 should state what conclusions counsel suppose to be erroneous, 
 and, where no briefs are filed, the petition should contain rea- 
 sons and authorities, if any exist, proving that erroneous con- 
 
 1 It may be further observed that time principle of law, and one that good 
 
 is essential insomuch as after the lapse practice requires should be strictly en- 
 
 of the designated period the case should forced. 
 
 go to the trial court and when it reaches 'Jamison v. Barelli, 20 La. Ann. 152. 
 
 that court the jurisdiction of the appel- * In Goodwin v. Goodwin, 4S Ind. 
 
 tribunal is at an end. Peck v. San- 584, the court said: "The office of a 
 
 on, 18 How. (U. S.) 42; Caldwell petition for a rehearing is not to request 
 
 1 Bruggerman, 8 Minn. 2S6; Browder the court generally to re-examine all 
 
 - . Mc Arthur, 7 Wheat. 58. See post, the questions in the record or all the 
 
 "Judgment on Appeal, "Chapter XXIX. questions decided against the party 
 
 * Rule XXXVII. The rule of court, filing it, but it is to point out particu- 
 
 so far as the point here immediately in- larly the errors the court is supposed to 
 
 volved is concerned, is really nothing have committed in the decision which it 
 
 more than the declaration of a general has made."
 
 REHEARING. 469 
 
 elusions were asserted, but, under our practice, the reasons and 
 authorities may be presented by briefs filed within the time 
 the law prescribes, although the particular points must be stated 
 in the petition. 1 General statements will be unavailing, and 
 assertions can not supply the place of arguments and authori- 
 ties. 2 
 
 § 556. Rehearing not granted to enable Parties to secure a Cor- 
 rection of the Transcript — It is the duty of parties to see that the 
 record is complete and correct before the case is taken up for 
 consideration by the court. If parties permit a decision to be 
 made upon a defective or incorrect record, the faul,t is their 
 own, and, as a general rule, a rehearing will not be granted to 
 enable them to secure an amendment or correction of the rec- 
 ord. 3 Any other rule would, it is evident, tend to encourage 
 negligence and result in wrong to the community, as well as to 
 the courts, since it would delay causes and impose a double 
 duty upon the judicial tribunals, inasmuch as it would require 
 them to decide the cause, once upon a defective record and 
 again upon a corrected record. Parties are bound to do all 
 that reasonable care and diligence require to secure a proper 
 record and properly present the questions involved before the 
 case is suffered to go to the court for final consideration. 
 
 1 Fertich v. Michener, m Ind. questions are decided, although there 
 472, 486; Western Union Telegraph may be no express statement of them. 
 Co. v. Hamilton, 50 Ind. 1S1. Some Fry t>. Currie, 103 N. C. 203,9 S. E. Rep. 
 of the courts hold, and with reason, 393; Fisher v. Cid Copper Mining Co., 
 that only the points should be stated in 97 N. C. 95, 4 S. E. Rep. 703; Sauls v. 
 the petition. Enright v. Grant, 5 Utah, Freeman (Fla.), 4 So. Rep. 577; Ruff- 
 400, 16 Pac. Rep. 595; First Nat. Bank ner v. Hill, 31 W. Va. 428, 7 S. E. Rep. 
 v. Ashmead, 23 Fla. 379, 2 So. Rep. 657. 13. 
 
 2 Colvin v. Warford, iS Md. 273; s Warner v. Campbell, 39 Ind. 409; 
 Wilson t>. Broder, 24Cal. 190; Arizona, Pittsburgh, etc., Co. v. Van Houtcn, 4S 
 etc., Co. v. Copper Queen Co. (Ariz.), Ind. 90; Cole v. Allen, 51 Ind. 122; 
 11 Pac. Rep. 396. Merely technical Merrifield v. Weston, 6S Ind. 70; Por- 
 points will not be considered on a pe- ter v. Choen, 60 Ind. 338; State v. 
 tition for a rehearing. People v. Nor- Terre Haute, etc., Co., 64 Ind. 297, 303; 
 they, 77 Cal. 61S, 634, 20 Pac. Rep. 129. Board v. Center Township, 105 Ind. 
 It is obvious that the petition must show 422; Bitting v. Ten Eyck, 82 Ind. 421; 
 a material error affecting the ultimate Schrichte v. Stites, etc., 127 Ind. 472; 
 result, or it can not be granted. Nor Ross v. McGowen, 58 Texas, 603. 
 
 will it be granted where all the material
 
 470 APPELLATE PRO( 
 
 § 55 
 
 7. Original questions can iiot be presented by a Petition for a 
 
 Rehearing— It is the" policy of the law to require parties to pre- 
 sent all questions in the briefs originally tiled, and not to per- 
 mit new points to be made in the petition for a rehearing. The 
 rule adopted pursuant to this policy is a salutary one, and one 
 dictated by considerations of justice as well as by expediency. 
 If parties were permitted to submit cases without presenting 
 all the material points a loose and slovenly practice would be 
 encouraged, and the administration of justice would be delayed 
 and embarrassed. To tolerate such a practice would impose 
 the duty upon the courts of examining and deciding cases in 
 detached parts, and thus delay decisions, produce confusion 
 and encourage conduct not consistent with fair dealing and 
 good morals. The rule requiring parties to make all important 
 points in their original briefs imposes no hardship upon them 
 and requires no extraordinary thing. Parties are bound, in 
 good faith and by just principles, to give full and careful study 
 to the cases they present to the highest courts of the State, and 
 such study, if properly made by capable counsel, ought to bring 
 to light every point of importance. The general rule we have 
 stated is founded on solid principle and is well supported by 
 authority. 1 But it would be an unreasonable perversion of the 
 general rule to hold that a party may not adduce additional 
 arguments, authorities, or illustrations in support of the points 
 properly stated and presented in the original briefs. If the 
 party adheres to points well presented by the original briefs he 
 does not violate the rule by exhibiting the points in a new light 
 and strengthening them by additional arguments or authorities. 
 If, however, he has not specifically stated the points in his 
 original brief he can not, without a violation of the rule, be al- 
 
 1 Yatert-. Mullen, 24 Ind. 277; Ilcav- v. First National Bank, 102 Ind. 464; 
 
 enridge v. Month-. 34 Ind. 28; Brooks Succession of Broom, 14 La. Ann. 67; 
 
 v. Harris, 42 Ind. 177: Pittsburgh, etc., Mateer v. i'.rown, 1 Cal. 221; Kellogg 
 
 Co. v. Ruby, 38 Ind. 294; Hood v. v. Cochran, 87 Cal. 192, 12 Law. Rep. 
 
 Pearson, 67 Ind. 36S; Graeter v. Will- Anno. 104; State v. Coulter, 40 Kan. 
 
 . 55 Ind. 461; Rikoff v. I'.rown, 87,673, 20 Pac. Rep. 525; Coleman v. 
 
 etc., Co., 68 Ind. 388; Board v. Hall, 70 Kells, 31 So. Car. 601, 9 S.E. Rep. 735; 
 
 [nd 1.69; Underwood v. Sample, 7". Wachendorf v. Lancaster, 61 Iowa, 509; 
 
 Ind. 446; Wasson v. First National Farrell v . Pingree, 5 Utah, 530, 17 Pac, 
 
 Bank, 107 Ind. 206; Union School Tp. Rep. 453.
 
 REHEAR INC. 471 
 
 lowed to make them in the petition for a rehearing. A party 
 can not, however, be regarded as having stated a point where 
 he does no more than assert, in general terms, that a ruling 
 was erroneous. He must state- specifically the point which 
 shows the ruling to be wrong, for a mere general assertion that 
 a ruling is wrong is not " the making of a point." We are, it 
 may not be out of place to add, here speaking of "making 
 points " on a petition for rehearing as a matter of right and 
 with reference to what parties may do, as of strict right, not as 
 to what the court may, in the exercise of its general powers, 
 permit them to do. 
 
 § 558. A second Petition for Rehearing will not be Entertained— 
 
 A decision upon a petition for rehearing against the petitioner 
 is a final disposition of the cause, and a second petition from 
 the same party will not be considered. 1 This doctrine is in 
 harmony with the general rule that where the appellate tribunal 
 finally disposes of a motion or petition the matter is res adjudi- 
 cata. The doctrine is important and sound, inasmuch as it en- 
 ables the court to terminate litigation by summarily disposing 
 of a second petition for rehearing. Some of the courts have, 
 indeed, characterized the conduct of counsel in filing a second 
 petition in cases where the first has been denied as " reprehen- 
 sible and deserving of punishment." 
 
 § 559. Submitting the Application— Applications for a rehearing 
 are submitted upon written or printed briefs, and oral argu- 
 ments are not heard. The record, petition and brief must be 
 returned to the files within sixty days from the time the decision 
 is filed with the clerk. It is made the duty of the clerk to enter 
 an order overruling the petition unless the petitioner returns the 
 papers within the time designated. After the papers are re- 
 turned they can not be taken from the files by the petitioner, 
 except on leave granted upon a special written application. 2 
 
 1 Garrick v. Chamberlain, ioo 111. 476; decisions declaring that a second mo- 
 Smith v. Dennison, 101 111. 657; Coates tion to dismiss will not be entertained 
 v. Cunningham, 100 111. 463; Blatchford as well as bv decisions in other cases. 
 v. Newberry, mo 111. 4S4. The general Blair v. Lanning, 61 Ind. 499. 
 principle is declared and enforced bv ' ! Rule XXXVII
 
 472 APPELLATE PROCEDURE. 
 
 The rule has been enforced with considerable strictness, and 
 so it should be, since the practice it establishes is required in 
 order to prevent delays and to compel parties to act with 
 promptness. 
 
 § 560. Ruling on the Petition — The court is not bound to grant 
 a n-hearing as to the entire case, or to reopen it upon all ques- 
 tions, but it may, in its discretion, open the case as to specific 
 questions. 1 Nor is the court bound to adhere to the opinion 
 originally delivered, or to the mandate issued. It may modify 
 its opinions or judgments as justice requires, without granting 
 the prayer of the petition generally. 2 
 
 § 561. Effect of granting the Petition — Where a petition for a 
 rehearing is granted generally the entire case is open for 
 argument, but it is otherwise where the rehearing is granted as 
 to particular points. 3 The granting of a petition as to the en- 
 tire case authorizes parties to make new points, assume orig- 
 inal positions, and file additional briefs. 4 So far does the rule 
 go that where a petition is granted admissions made in the 
 original briefs may be withdrawn. It was formerly the rule 
 that an order granting a rehearing operated to set aside the 
 submission, but this doctrine is of doubtful soundness. It is, 
 however, unnecessary to consider the soundness of that doc- 
 trine for the rules of the court expressly provide that the 
 order granting a rehearing shall not have the effect to set aside 
 the submission and that the case may at once be taken up and 
 decided. 6 
 
 1 Gatling v. Newell, 12 Ind. 11S; City of Crawfordsville v. Johnson, 51 Ind. 
 
 of Crawfordsville v. Johnson, 51 Ind. 397. 
 
 397. * Gilbert V. Southern, etc., Co., 62 
 
 3 Luthe v. Luthc, 12 Col. 429; Ma- Itul. 522; First National Hank v. First 
 
 honv v, Mahony, 41 La. Ann. 135, 5 National Bank, 76 Ind. 561. But, as 
 
 So. Rep. 645; Winter z>. Fulstone(Nev.), decided in the case last cited, the briefs 
 
 21 Pac.Rep. 687. See Hasted z>. Dodge, originally filed are not withdrawn by 
 
 7-- Iowa, 402, 39 N. W. Rep. 668. the order granting the petition. 
 
 3 Gatling v. Newell, 12 Ind. 11S; City b Booker f . Goldsborough, 44 Ind. 490. 
 
 Rule XXVIII.
 
 CHAPTER XXIX. 
 
 THE JUDGMENT ON APPEAL. 
 
 § 562. Authority of the decisions of ap- 
 pellate tribunals. 
 
 563. Effect and characteristics of the 
 
 judgment on appeal. 
 
 564. Remanding the case to the trial 
 
 court. 
 
 565. Limits of the power to direct 
 
 specific judgments. 
 
 566. Original questions of tact. 
 
 567. Directing a specific judgment. 
 56S. Directing a new trial. 
 
 569. Remanding with instructions to 
 
 the trial court. 
 
 570. Remittitur. 
 
 571. Directing the specific damages 
 
 that shall be awarded. 
 
 572. Directing the amount of recov- 
 
 ery in cases where the facts 
 appear in special findings or 
 special verdicts. 
 
 573. Costs in cases where a remittitur 
 
 is entered. 
 
 § .574- 
 
 575- 
 576. 
 
 577- 
 
 57S. 
 579- 
 
 580. 
 581. 
 
 5S2. 
 
 583- 
 5 8 4- 
 5*5- 
 
 5S6. 
 
 Affirming as to some of the par 
 ties and reversing as to others 
 
 Dependent rights — Judgments. 
 
 Trial court's duty to obey man- 
 date of the appellate tribunal. 
 
 Scope of the mandate of the ap- 
 pellate tribunal. 
 
 The law of the case. 
 
 Form and effect of the judgment 
 of affirmance. 
 
 Judgment of reversal. 
 
 Costs on reversal — Apportion- 
 ment of. 
 
 Effect of reversal upon the rights 
 of bona fide purchasers. 
 
 Restitution. 
 
 Restitution — Practice. 
 
 Finality of the judgment on ap- 
 peal. 
 
 Effect of a petition for rehearing 
 upon the rule stated in the pre- 
 ceding paragraph. 
 
 § 562. Authority of the Decisions of Appellate Tribunals — The 
 
 courts invested with the paramount judicial power of the State 
 must necessarily possess very comprehensive authority over the 
 judgments, decrees and acts of the nisi -prius courts, since the 
 judgments of the appellate tribunals are the authoritative ex- 
 pressions of the highest officers of one of the great departments 
 of government. It is essential that such judgments should 
 be respected and obeyed by all courts of intermediate and in- 
 ferior jurisdiction, for, if it were otherwise, the rules of property 
 and the rules governing the rights of persons would remain for- 
 ever unsettled. The decisions of the tribunals of last resort are 
 as binding and effective as any other authoritative declarations 
 
 (473)
 
 474 A1>n ;1 - x ' ' PROCEDURE. 
 
 of the law can be. It is, therefore, justly held that the decisions 
 of the appellate tribunals are binding" upon all courts of original 
 jurisdiction. 1 
 
 § • r >t;: > >. Effect and Characteristics of the Judgment on Appeal — The 
 
 authority of the appellate tribunal to expound and declare the 
 law is not confined to particular instances, as appears from the 
 statements and the authorities made and referred to in the pre- 
 ceding paragraph, for its declaration of a general rule extends 
 to all cases belonging to the class fully within the rule, but 
 as to particular instances — those in which the judgments are 
 pronounced — the decisions on appeal have the greater 
 force, inasmuch as such decisions are, as we shall presently 
 show, conclusive upon all points full)' involved in the appeal 
 and necessarily decided. 2 As the authority of the appellate tri- 
 bunal is so comprehensive and plenary in cases submitted to it 
 for judgment, it must necessarily have authority to determine — 
 and conclusively determine — all matters of law involved in the 
 appeal, although it may not have a right, as will be subse- 
 quently shown, to usurp the province of the jury, and decide 
 original questions of fact. 3 The power to conclusively determine 
 all questions of law includes, as of necessity, the authority to 
 so direct the trial court that its decrees or judgments shall fully 
 conform to the law as declared by the appellate tribunal on ap- 
 peal. This authority would be unreal and unsubstantial, if the 
 appellate tribunal could not so mold its decrees or judgments 
 as to compel the trial court to conform to its decisions. It is 
 also necessary that the authority to so mold its judgments as 
 to compel the entry below of a decree or final judgment award- 
 
 1 Leard v. Leard, 30 Ind. 171; Julian ment of the state. 1 Kent's Com. 477. 
 - . I'.' al, 34 Ind. 371. Bright v. Hutton, 12 Eng. L. & E., 15; 
 
 2 Tin- decisions of a court, no mat- Hutton v. Uptill, 2 II. L. Cases, 674; 
 ter how high its rank may be, are not, Yates v. Lansing, 9 Johns. 415; Hart 
 in the strict sense, the law; they are, v. Burnett, 15 Cal. 530, 607; Hibbits v. 
 however, evidences of the law, and pro- Jack, 97 Ind. 570; I lines v. Driver, 89 
 
 the v do, from the tribunals Ind. 339; Paul v. Davis, 100 Ind. 422. 
 
 invested with power to authoritatively 426. 
 
 declare the law, they are to be accepted 3 15 v original questions of fact, we 
 
 by inferior courts as the law until over- here mean questions requiring decision 
 
 ruled by the supreme judicial depart- in the nisi frius courts.
 
 THE JUDGMENT OX APPEAL. 
 
 475 
 
 ing the parties what the law gives them, should reside in the 
 appellate tribunal, in order to entitle it to direct such a judg- 
 ment as shall finally end a controversy in all cases where that is 
 required by the law. The duty of appellate tribunals is to enter 
 a judgment that will forever close the controversy wherever 
 it can be done, without unjustly trenching upon, or prejudicing, 
 the rights of the parties to the appeal. 1 It is in accordance with 
 the principles we have stated that it is held that an appellate 
 tribunal is not bound to direct a judgment on the facts stated in 
 a special finding, or in a special verdict, but may, if upon an 
 examination of the whole record it appears that justice will be 
 better and more surely done by awarding a new trial, specifi- 
 cally direct the trial court to grant a new trial to the parties. 2 It 
 seems clear that this is the correct rule under such a system as 
 ours, where equitable and legal jurisdiction are united in the 
 same appellate tribunal. It is evident that any other rule would 
 often work injustice, for there are many cases where the whole 
 record shows that judgment ought not to be rendered on a 
 special verdict or upon a special finding. It would be in many 
 cases a sacrifice of substantial justice to a bald technicality to 
 
 1 In Luthe f.Luthe, 12 Col. 42 1,21 Pac. 
 Rep. 467, the court said : "Asa rule, we 
 do not undertake to direct the entry of 
 judgments in matters of form, but in 
 this case, to the end that there may be 
 a speedy end of this litigation, we will 
 direct the entry of a modified decree by 
 the county court." The authorities 
 hereafter referred to make it clear that 
 it is the right, and, indeed, the duty of 
 the appellate tribunal to prevent litiga- 
 tion from being prolonged wherever it 
 can justly and lawfully be done. In 
 McAfee v. Reynolds, 2S N. E. Rep. 
 423, it was said: "The power, as the 
 authorities declare, is one that should 
 be freely exercised where its exercise 
 will put an end to litigation and jield 
 justice. To accomplish this it is always 
 proper to so mold the form of the man- 
 date as that the trial court may carry 
 
 into effect, by the appropriate entries, 
 the judgment of the appellate tribunal." 
 2 Bell v. Golding, 27 Ind. 173; Bu- 
 chanan v. Milligan, 10S Ind. 433; West- 
 ern Union Tel. Co. v. Brown, 10S Ind. 
 53S; Sinker v. Green, 113 Ind. 264; 
 Bartholomew v. Pierson, 112 Ind. 430, 
 14 N E. Rep. 249; Brown -'.Jones, 113 
 Ind. 46, 13 N. E. Rep. S57; Murdoch 
 v. Cox, 118 Ind. 266, 20 N. E.Rep.7S6; 
 Security Co. v. Arbuckle, 119 Ind. 69; 
 Louisville, etc., Co. v. Etzler, 119 Ind. 
 39, 44, 21 N. E. Rep. 466; Roberts :•. 
 Lindley, 121 Ind. 56, 22 N. E. Rep. 967; 
 Thomason v. Wood, 42 Cal. 416; 
 Cooper v. Shepardson, 51 Cal. 298,300; 
 Schroeder v. Schweizer, 60 Cal. 467. 47 1 ; 
 Lapham v. Dreisvogt, 36 Mo. App. 27;; 
 Duck v. Peeler, 74 Texas, 26S; 11 S..W. 
 Rep. 1 1 1 1 ; Athens, etc., Works v. Bain, 
 77 Ga. 72; McKenzie :•. Peck (Wis.), 
 42 N. W. Rep. 247.
 
 47G APPELLATE PROCEDURE. 
 
 pronounce judgment upon a special finding, and it would be a 
 reproach to the law to hold that the highest courts of the com- 
 monwealth, possessing both law and equity powers, are so fet- 
 tered by technical rules as to be incapable of giving effect 
 to their conceptions of right and justice. It may be added that 
 the successful party in a case where there is a special finding 
 or a special verdict can not with propriety move for a new trial, 
 or repudiate a favorable decision, and, yet, if there is no au- 
 thority to direct a new trial or new hearing in cases where the 
 finding or verdict is defective or is not in accordance with the 
 evidence, such a party may lose the benefit of a good cause of 
 action or a valid defense, simply because he does not do what 
 he can not do with propriety, or what it would be unreason- 
 able to expect him to do. Considerations of expediency join 
 with principle in requiring that the appellate tribunal should do 
 what the whole record indicates is necessary to give to the 
 parties a fair opportunity to establish their rights. The appellate 
 tribunal is not, however, bound to remand the case for a new 
 trial, where the facts fully appear in a special finding or verdict, 
 but may, if it deems proper, remand the case with instructions 
 to render the proper judgment on the facts. 1 
 
 § 564. Reman ding the Case to the Trial Court — The power of 
 
 the appellate tribunal to frame judgments is very comprehen- 
 sive, and extends over all classes of cases where the facts are 
 admitted of record or there appear in such a form as to leave 
 nothing to do but to apply the law to them by an appropriate 
 judgment. The appellate tribunal may pronounce the ultimate 
 judgment without remanding the case where the facts are not 
 in dispute, 2 unless the statute requires that the case should be 
 remanded to the trial court. Our statute evidently contemplates 
 that the case shall go back to the trial court for final judgment 
 
 1 McAfee y. Reynolds (Ind.), 28 N. U. S. 21. It is the practice in many 
 
 E Rep. 423; Parker v. Hubble, 75 Ind. jurisdictions for the appellate tribunal 
 
 580. The matter is necessarily one to itself pronounce the proper judgment 
 
 largely resting in the discretion of the or decree. But even in those jurisdic- 
 
 appellate tribunal. tions the appellate tribunal is not bound 
 
 '-' WicklffFe V. Owings, 17 How. (U. to enter the ultimate judgment, for it 
 
 S.) 17: Graham v. Bayne, iS How. (U. mav. at its election, remand the case to 
 
 10; Semmes -\ United States, 91 the trial court.
 
 THE JUDGMENT ON APPEAL. 477 
 
 where a reversal is adjudged, and although the provisions are 
 somewhat conflicting, there can be little doubt that the purpose 
 of the legislature was that the appellate tribunals should not ren- 
 der an entirely new and original judgment in any case brought 
 before them by appeal. They do, of course, render a judg- 
 ment affirming, reversing, or revising the decree or judgment 
 below, but they do not directly render the specific decree or 
 judgment as the court of original jurisdiction does, for the 
 mandate remands the case. This is so whether there is an ex- 
 press statement in the mandate to that effect or not, since the 
 law gives the judgment on appeal the force and operation we 
 have ascribed to it. But the effect of a mandate directing the 
 specific decree or judgment that the trial court shall render is 
 almost the same as a direct judgment by the appellate tribunal : 
 it is, indeed, essentially so in legal effect. This is clearly so 
 for the reason that where the trial court renders a decree or 
 judgment in obedience to the mandate that judgment or decree 
 is, in legal effect, that of the appellate tribunal. The appellate 
 tribunal decides the law and directs the trial court both as to 
 the law and its application, so that the latter is little more than 
 the passive instrument of the former. 1 
 
 § 565. Limits of the power to direct a Specific Judgment — While 
 the power of an appellate tribunal to modify, correct or amend 
 the judgment of the trial court is very comprehensive it is, 
 nevertheless, not without limit. It is held that the appellate 
 tribunal can not direct the trial court to render a judgment for 
 a sum beyond its jurisdiction. 2 This must necessarily be true 
 
 1 In Burnett v. Curry, 42 Ind. 272, to agree what the court shall do, and 
 the court, speaking of specific directions thereby bind the court, it is clearly 
 given the trial court, said: "This we wrong, since parties can not by agree- 
 did in effect by fixing the basis on which ment, control the court in such a mat- 
 the judgment should be rendered and ter. It is, however, to be said that the 
 instructing the circuit court to render case does not authoritatively decide 
 the judgment accordingly. That court that the court can be controlled by the 
 had but one duty to perform, which w as agreement of the parties, for the ques- 
 to render judgment as directed. It tion was not directly presented for de- 
 was, in effect, the rendition of judgment cision. 
 
 by this court." In so far as the court, 2 Glover v. Collins, iS N. J. L. 232. 
 
 in the case from which we have quoted, See, also, Porter v. Foley, 21 How. L" 
 
 6cems to recognize the right of parties S.) 393; Bingham v. Cabot, 3 Dallas,
 
 478 APPELLATE PROCEDURE. 
 
 even in the States where it is the law that the appellate tribunal 
 may itself render the proper judgment without remanding the 
 case to the trial court. Our reason for saying so is this : The 
 appellate tribunal being essentially one of review and having 
 jurisdiction only in cases where the trial court has jurisdiction, 
 it can not render a valid judgment in a case where none could 
 have been rendered by the trial court from which the appeal is 
 prosecuted. The provisions of the Federal and the State con- 
 stitutions guaranteeing and preserving the great right of trial 
 by jury impose a limit upon the power of all courts. 1 Where 
 there is a disputed question of fact, arising as an original ques- 
 tion for decision, in a case where there is a right to a trial by 
 jury, no court, no matter what its rank may be, can disregard 
 the provisions of the organic law and decide the question. Al- 
 though it is implied in our statement, it may, nevertheless, be 
 well enough to add, for the sake of clearness, that the right to 
 a trial by jury does not extend to questions which originate on 
 appeal and are incidental to the exercise of purely appellate 
 jurisdiction. As constitutions are to be construed with refer- 
 ence to existing institutions and well known principles, it can 
 hardly be possible that the provisions of our national and State 
 constitutions were intended to apply to questions of fact orig- 
 inating on appeal, since, at common law juries were never 
 called to determine questions originally arising on appeal. 2 
 
 § 566. Original questions of Fact — It is a necessary sequence 
 of the doctrine stated in the preceding paragraph that the ap- 
 pellate tribunal can not adjudicate upon original disputed ques- 
 tions of fact in cases where there is a constitutional right to a 
 trial by jury, but where there is no such right, — as, for instance, 
 in equity cases, or cases arising under the exercise of the right 
 of eminent domain, — it would seem that the weight of authority 
 
 19; Mordecai v. Lindsay, 19 How. (U. given. Robertson v. Cease, 97 U. S. 
 
 S.) 199. Where the defect as to a ju- 646; Mordecai v. Lindsej, supra. 
 
 risdictional fact is one that may be l Jones v. Fortune, 128 111. 518, 21 N. 
 
 cured by amendment the judgment will E. Rep. 52$. 
 
 be reversed generally, but where the 2 See, ante, " Supreme Court," Chap- 
 
 defect is one not curable by amendment ter III. 
 
 positive directions to dismiss will be
 
 THE JUDGMENT OX APPEAL. 
 
 479 
 
 is that, in the absence of a statute forbidding it, such questions 
 may be determined by the appellate tribunal. It has long 
 been the practice of many courts to decide questions of fact in 
 suits of purely equitable cognizance, but under our code such 
 questions are not for the appellate tribunals to decide. We 
 believe that on principle appellate tribunals should not finally 
 decide such questions under any system. Our practice has been 
 to remand all cases where there is a disputed question of fact 
 and that question is not one arising as an original question on 
 appeal, so that a practical exposition has been given to the stat- 
 ute which can not be departed from without violating a funda- 
 mental principle. 1 Our decisions in analogous cases clearly 
 indicate that the rule is the same in equity cases as in other 
 cases, for they affirm that although the evidence is in writing, 2 
 
 1 Bruce v. Schuyler, 4 Gilm. 221; 
 Pike v. Megoun, 44 Mo. 491; Hovey v. 
 State, 119 Ind. 3S6; Board v. Bunting, 
 in Ind. 143; Weaver v. Templin, 113 
 Ind, 29S, 301 ; Stuart v. Laird, 1 C ranch, 
 299; Martin v. Hunter, 1 Wheat. 304; 
 Konor v. Happersett, 21 Wall. 162; 
 State f. Parkinson, 5 Nev. 15; People 
 v. Board, 100 111. 495; Rogers v. Good- 
 ing, 2 Mass. 475. The reporter's note to 
 the case of the City of Jeftersonville v. 
 Steam Ferryboat, etc., 35 Ind. 19, con- 
 veys an erroneous impression, and has 
 misled the authors of some of our di- 
 gests. That case does not decide, directly 
 or indirectly, that the Supreme Court 
 will render a judgment directly, but. on 
 the contrary, the case was remanded, 
 in accordance with the uniform prac- 
 tice, with instructions to the trial court 
 to enter the proper judgment. The 
 mandate in that case is this: "The 
 judgment is reversed with costs, and 
 the case is remanded to the circuit 
 court with instructions to render judg- 
 ment for the plaintiff for the amount 
 claimed." An important and influential 
 reason supports the general doctrine of 
 the text and that is this: The appellate 
 jurisdiction is intrinsically and essen- 
 
 tially one of review, and the court in- 
 vested with that jurisdiction can not. in 
 any way, whether it be a suit in equity 
 or an action at law, determine original 
 questions of fact without departing 
 from sound principle. As said by the 
 Supreme Court of California, in re- 
 fusing to decide such a question: "To 
 do so would be to exercise original 
 rather than appellate jurisdiction." 
 Ellis v. Jeans, 26 Cal. 272, 27S. The 
 earlier cases in that court seem to have 
 taken a different view, but they have been 
 completely overthrown. Carpenter :•. 
 Gardiner, 29 Cal. 160; Hayes v. Mar- 
 tin, 45 Cal. 559; Poorman v. Mills. 43 
 Cal. 323. The doctrine of that court 
 seems to be fairly outlined in Lick v. 
 Diaz, 37 Cal. 437, where it was said: 
 " But the result must depend on con- 
 troverted facts, which it is not our 
 province to determine, and it is there- 
 fore impracticable for us to render a 
 final judgment." See Wise v. Will 
 iams, 88 Cal. 30, 25 Pac. Rep. 1064; Gay 
 v. Davey, 47 Ohio St. 396, 25 X. E. 
 Rep. 425. 
 
 1 Carr v. Haskett, no Ind. 152; Mc- 
 Connell v. Harrington, 10S Ind. 405; 
 Lake Erie, etc., Co. v. Griffin, 107 Ind.
 
 ISO 
 
 APPELLATE PROCEDURE. 
 
 still, the appellate tribunal will not weigh it, but will accept 
 that which the trial court deemed trustworthy. It is, of course, 
 implied in what we have said, that the facts must be in dispute, 
 for where there is no disputed question of fact, nothing remains 
 but to apply the law to the facts, and, as the court must always 
 determine what the law is and how it shall be applied, it must 
 determine the whole cases where the facts are undisputed. This 
 principle is declared and enforced in the cases which hold that 
 the court may direct what the verdict shall be in cases where 
 there is no conflict in the evidence, 1 and it is asserted in other 
 cases. 2 
 
 j.64, 473; Miller v. Evansville National 
 Bank, 99 Ind. 272; State v. Wasson, 99 
 End. 261; Pence v. Garrison, 93 Ind. 
 545. The earlier cases held that in 
 suits in equity the court would weigh 
 the evidence on appeal. Egbert v. 
 Rush, 7 Ind. 706. In the case of Nich- 
 ols v. Glover, 41 Ind. 24, 34, it was said 
 that : " The evidence being all written, 
 we can judge of it as well as the court 
 below." but the case cited can not be 
 regarded as authority upon the question 
 here under immediate discussion, for, in 
 view of the decision upon other points, 
 and of the peculiar form in which the 
 question was presented, the statement 
 quoted can not be regarded as anything 
 more than mere dicta. The decisions 
 which declare that the court will not 
 weigh evidence mean that it will not 
 weigh the testimony of witnesses in 
 cases where there is conflict, for it can 
 not be legally possible that, where all 
 of the evidence consists of written in- 
 struments, as deeds, agreements, prom- 
 issory notes and the like, the appellate 
 tribunal will not determine the mean- 
 ing, weight, and effect of such evidence. 
 American Insurance Co. v. Butler, 70 
 Ind. 1. 
 
 1 Crookshank v. Kellogg, 8 Blackf. 
 256; Nance v. Vance, 74 Ind. 370; 
 Dodge - . Gaylord, 53 Ind. 365; Hall v. 
 Durham, 109 Ind. 434; Wabash, 
 
 Co. v. "Williamson, 104 Ind. 154; Carver 
 v. Carver, 97 Ind. 497; Weis v. City of 
 Madison, 75 Ind. 241, 254; Parks v. 
 Ross, 11 How. (U. S.) 362; Improve- 
 ment Co. v. Munson, 14 Wall. 442; 
 Pleasant v. Fant, 22 Wall. 116; Dry- 
 den v. Britton, 19 Wis. 22; Lanet'. Old 
 Colony, etc., Co., 14 Gray, 143. But 
 where there is competent evidence suf- 
 ficient in probative effect to make a fair 
 question of fact, the case must go to the 
 jury. Huff V. Cole, 45 Ind. 300; Havncs 
 v. Thomas, 7 Ind. 3S. 
 
 2 Taylor v. Lohman, 74 Ind. 41S; 
 Stringer v. Northwestern, etc., Co.. S2 
 Ind. 100; Robertson v. Huffman, 101 
 Ind. 474; Smith v. Kruger, 33 Ind. 86. 
 The principle stated is illustrated by the 
 cases which hold that where there is no 
 evidence upon a material point the 
 judgment will be reversed. Begein V. 
 Brehm, 123 Ind. 160; Riser v. Beam, 
 117 Ind. 31; Hutchinson v. Trauerman, 
 112 Ind. 21; Roby v. Pipher, 109 Ind. 
 345; Ray v. 1)111111.38 Ind. 230; Vaughan 
 v. Godman, 103 1ml. 499; Bevan v. Tom- 
 linson. 25 Ind. 253. It is obvious that 
 the doctrine of the cases to which we 
 have referred is not opposed to the 
 rule, asserted in a vast number of cases, 
 that the court will not disturb a finding 
 or verdict in a case where there is some 
 evidence tairly supporting the finding 
 or verdict upon all material points.
 
 THE JUDGMENT ON APPEAL. 
 
 481 
 
 § 5G7. Directing a Specific Judgment — Where the facts are not 
 in controversy and are fully exhibited by the record, the appel- 
 late tribunal may direct the specific judgment that shall be ren- 
 dered. 1 It is not, of course, bound to give specific directions 
 as to what judgment shall be entered, but it may rightfully do 
 so when justice requires. As the object of the law is to put 
 an end to litigation the power to direct what specific judgment 
 shall be entered is one to be liberally exercised in furtherance 
 •of justice. It has often been exercised. 2 
 
 § 568. Directing a New Trial — Whether a new trial shall be 
 ordered or a specific judgment shall be directed is a matter so 
 largely within the discretion of the appellate tribunal 3 that it 
 ■can hardly be said that there is any established general rule 
 upon the subject, except that which forbids the trial of original 
 questions of fact in cases where a trial by jury is demandable 
 
 Where there is no evidence, the ques- 
 tion is one of law and not of fact, and 
 whether there is or is not evidence, is, 
 in all appeals, to be determined from 
 an examination of the record. 
 
 1 City of Jeffersonville v. Steam Fer- 
 ryboat, etc., 35 Ind. 19. In the case cited 
 the court below was directed to render 
 a judgment upon the agreed statement 
 of facts. The authority to direct the 
 specific judgment has often been exer- 
 cised in cases where the facts appeared 
 in a special finding or in a special ver- 
 dict. McAfee V. Reynolds (Ind.), 2S 
 N. E. Rep. 423. See, generally, Lemke 
 v. Dageling, 52 Wis. 49S; Everit v. 
 Walworth County Bank, 13 Wis. 419; 
 Schunck v. Gegenseitiger. etc., 44 Wis. 
 369; Baldenherg v. Warden, 14 W. \'a. 
 397; Carroll v. Campbell. 25 Mo. App. 
 630; Rosenfield v. Goldsmith (Ky.), 12 
 S. W. Rep. 92S. We have collected the 
 cases not so much for the purposi 
 sustaining the general proposition stated 
 as for the purpose of showing the appli- 
 cation of the doctrine to particular in- 
 stances. 
 
 31 
 
 • 2 Smith v. Hubbard. 85 Tenn. 306. 2 
 S. W. Rep. 569; Oakland Paving Co. 
 v. Bagge. 79 Cal.439, 21 Pac. Rep. 855; 
 Loveland :•. Gardner, 79Cal.317.21 Pac. 
 Rep. 766; Baltimore, etc., Co. v. State, 
 69 Md. 551, 16 Atl. Rep. 212; Willev v. 
 Morrow, 1 Wash. Tv. 474; Grundy V. 
 Pine Hill Coal Co. (Ky.), 9 S.W. Rep. 
 414; Baltimore, etc., Co. v. State, 69 
 Md. 551, 16 Atl. Rep. 212. See, gen- 
 erally. Wood v. State. 27 Tex. App. 53S, 
 11 S.W. Rep. 525: Underwood r. Riley. 
 19 Wis. 412; Pryce V. Security Ins. Co., 
 29 Wis. 270; Schmidt V . Gilson. 14 Wis. 
 514. Where a defect in a pleading ap- 
 pears to be amendable the court may, 
 if it deems it proper in the furtherance 
 of justice, remand with instructions to 
 permit an amendment. Rigg v. Par- 
 sons, 29 W. Va. 522. 2 S. E. Rep. Si; 
 Love r.Tinsley. 1,2 W.Va. 25.9 S.E.Rep. 
 44. Ordinarily, however, the appellate 
 tribunal gives judgment upon the plead- 
 ings as they appear in the record where 
 the only error- alleged are based upon 
 ridings on the pleadings. 
 3 J ///<•, S S 563.
 
 482 APPELLATE PRO< EDURE. 
 
 as a matter of right under the provisions of the constitution 
 guaranteeing the great common law right of trial by jury. But, 
 although there is no fixed rule, beyond that stated, it is the 
 uniform practice to remand for a new trial or hearing when it 
 appears that such a course will best secure justice. It is the 
 practice where facts have been kept from the jury by the erro- 
 neous exclusion of evidence to remand the case for a new trial.' 
 So, where incompetent evidence is erroneously allowed to go 
 to the jury the case will, as a general rule, be remanded with 
 instructions to award a new trial of the whole case. 2 This is 
 clearly the correct doctrine. The jury are the judges of the 
 facts, and if the trial court improperly excludes evidence 3 they 
 are not allowed to be fully invested with knowledge of the 
 facts, and, presumptively at least, can not correctly decide the 
 questions at issue between the parties ; on the other hand, if 
 incompetent evidence is admitted, the jury are authoritatively 
 put in possession of matters which they ought not to be per- 
 mitted to consider. In legal contemplation a jury can not justly 
 decide a case where material facts are kept from them, nor can 
 they justly decide a case where the court admits incompetent 
 evidence. In the one case the court impliedly affirms that the 
 facts kept from them must not be considered ; in the other, it 
 impliedly directs them to consider what they have no right to 
 regard. 
 
 § 569. Remanding with Instructions to the Trial Court— Where 
 
 the facts are not in dispute or where it is evident that no re- 
 covery can be had in the particular instance the appellate tri- 
 bunal may remand the case with instructions to dismiss the ac- 
 tion or to enter a final judgment in favor of the party entitled 
 to it under the law. 4 So, on the other hand, it is proper for the 
 
 1 Bordcntown, etc., v. Flannagan, 41 for if the evidence is immaterial or with- 
 N. J. L. us; Parker v. Meadows, 86 out influence, the ruling upon it, il- 
 Tenn. 1S1, 6 S. W. Rep. 49. though it may be wrong, is harmless. 
 
 2 The case of St. Croix, etc., Co. v. * Somerville r. Reid, 35 Ga.47; Cran- 
 Richie, 73 Wis. 409, 415, 41 N. W. Rep. ford v. Wingfield, 25 Texas, 414; Bin- 
 n/14, asserts a general principle sustain- nev v. Chesapeake, etc.. Co., S Pet. 214; 
 ing the doctrine of the text. Brackett v. Griswold (N. Y.), 2S N.E. 
 
 s It is implied, of course, that the evi- Rep. 365. 
 dence must be material and influential,
 
 THE JUDGMENT ON ATI 
 
 48,' 
 
 court where justice requires it, to direct that the affirmance 
 shall not preclude another action. 1 So, too, amendments may 
 be suggested or directed in furtherance of justice, and direction 
 may be given to admit parties. 2 It is safe to affirm that the re- 
 sult of all the particular instances, as a valid inductive process 
 will show, is that the judgment on appeal may so direct the 
 trial court as to require it to vary, amend or modify its decree 
 or judgment as to make it effectively yield justice to the parties 
 whose interests are involved. 3 
 
 § 570. Remittitur — It is a common practice, and one fully de- 
 fensible on principle, to direct that a remittitur shall be entered, 
 and if none be entered that the judgment be wholly reversed. 1 
 This course leaves the party an election to remit part of the 
 damages assessed in his favor or to suffer a reversal and take the 
 chances of another trial. It seems just to allow this election, 
 since the party may be able to supply needed evidence or 
 omissions on a second trial. Nor is there any injustice to the 
 appellant since he receives, under such a practice, all that he 
 
 1 White v. Poorman, 24 Iowa, 108; 
 Shafer v. Newlan, 29 111. 44. 
 
 2 McCalop v. Fluker, 12 La. Ann. 
 551; Mabey 7'. Atkins, 10 Wall. 419; 
 be Wolf v. Haydn, 24 111. 525. See, 
 generally, Sankey v. Sankey, S Ala. 
 601; Crosby t\ McDermitt, 7 Cal. 146; 
 Moores v. McConnell, 17 La. Ann. S4; 
 Sanborn r. Webster, 2 Minn. 323; Lewis 
 v. Darling, 16 How. (U. S.) 1. 
 
 3 Wortham v. Harrison, 8 Texas, 141 ; 
 Stanard v. Brownlow, 3 Munf. (Va.) 
 229; Myers v. Kendrick, 13 Iowa, 599; 
 Chittenden v. Brewster, 2 Wall. 191; 
 Burleson v. Burleson, 15 Texas, 423; 
 Woodward v. Howard, 13 Wis. 557; 
 Waring v. Gilbert, 25 Ala. 295; Mc- 
 Clure v. Lay, 30 Ala. 20S; Bradley v . 
 Root, 5 Paige, 632; Shollenberger v. 
 Brinton, 52 Pa. St. 9; McCaw t/.Blew- 
 itt, 1 Bailey (So. Car.), Ch. 98. 
 
 4 Giles v. Law, 14 Ind. 16; Simpson 
 V. Shafer, 20 Ind. 306; Schafer v. Smith, 
 6S Ind. 226; Frazer 7'. Boss, 66 Ind. 1; 
 
 Pate 7-. Roberts, 55 Ind. 277; Cravens 
 v. Duncan, 55 Ind. 347; Boyle v. Carter, 
 24 111. 49; Doll v. Feller, 16 Cal. 432; 
 Hitchings 7\ Van Brunt, 38 N. Y. 335; 
 Porter v. Grimsley, 9S N. C. 550, 4 S. 
 E. Rep. 529; Kavanaugh 7'. Janesville, 
 24 Wis. 618; Smith 7'. Schulenberg. 34 
 Wis. 41 ; Bigelow 7'. Doolittle, 36 Wis. 
 115; Single v. Schneider, 30 Wis. 570; 
 McHugh 7'. Chicago, etc., Co., 41 Wis. 
 75; Tyson 7'. Milwaukee, etc., Co., 50 
 Wis. 7S. A party may, of course, vol- 
 untarily enter a remittitur. Buse 7'. 
 Russell, 86 Mo. 209; Kimes v. St. Louis, 
 etc., Co., S5 Mo. 611; Murray v. Phil- 
 lips, 59 Ind. 56. It has been held that 
 where the judgment awards the party 
 more land than he was entitled to he 
 may obviate a reversal by a remittitur . 
 Gibson 7'. Choteau, 50 Mo. S5. But 
 compare Allen v. Claybrook, 5S Mo. 
 124; Keen v. Schnedler, 15 Mo. App. 
 59°-
 
 484 APPELLATE PROCEDURE. 
 
 can justly claim, namely, a general reversal. But broad as is 
 the right of a party to enter a remittitur, it is not allowed to 
 destroy the right of appeal after jurisdiction attaches. 1 
 
 § 571. Directing the specific Damages that shall be Awarded — 
 
 Some of the courts carry the doctrine upon which rests the 
 rule that a party may be directed to enter a remittitur or be 
 compelled to submit to a new trial to great lengths, for they as- 
 sert that the court may fix the amount of the recovery even 
 where there are no data upon which a definite calculation can be 
 made and no fixed rule for measuring the amount of the re- 
 cover}-. 2 We suppose it to be clear that where a mere calcu- 
 lation exposes the error and the calculation rests upon written 
 instruments, or upon evidence, definitely fixing the amount of 
 recovery, the appellate tribunal may direct what damages shall 
 be awarded, but where there are no such data and no fixed rule 
 we doubt the power of the court to absolutely direct what dam- 
 ages shall be assessed. 3 To illustrate the meaning we desire to 
 convey we say that we believe such a direction would be proper 
 where the action is on a bill of exchange, promissory note, or 
 the like, but not in an action for personal injuries caused by 
 culpable negligence or intentional wrong. It seems to us that 
 in actions of the class last named the court, in directing what 
 damages shall be awarded, invades the province of the jury 
 and violates the rule that a judgment can not be directed for a 
 specific sum where there is no definite rule which separates the 
 elements of damages. It is, we suppose, quite clear that a 
 trial court could not direct what damages a jury should allow 
 in nn action for personal injuries, although it might grant a 
 new trial, and it is difficult to conceive any solid principle upon 
 which the claim of an appellate tribunal to fix the damages in 
 such cases can be rested, for it has no more right to assume 
 the functions of a jury than has the court of original jurisdic- 
 tion. Nor is it possible in such an action to separate and dis- 
 
 1 Ante, § 62. heimer, S6 Ala. 541, 5 So. Rep. 870; 
 
 ? Harbour v. McKee, 7 Mo. App. 587; State v. Baougham, 20 Iowa, 497; Cady 
 
 Kimes v. St. Louis, etc., Co., S5 Mo. v. Milwaukee, etc., Co., 5 Dak. 97, 37 
 
 611. N. W. Rep. 221. 
 
 3 North America Ins Co. v. Fore-
 
 THE JUDGMENT OX APPE \L. 485 
 
 tinguish the excessive and illegal damages from the legal and 
 legitimate, and where this can not be done there can, as has 
 been held by able courts, be no specific and positive direction 
 as to the amount that shall be assessed as damages. 1 
 
 § 572. Directing the amount of Recovery in cases where the facts 
 appear in Special Findings or Special Verdicts — Where the facts 
 appear in a special rinding or in a special verdict, it is proper 
 for the appellate tribunal to rectify an error in the assessment 
 of damages by directing the specific amount for which judg- 
 ment shall be entered in cases where the damages are severable 
 and the verdict or finding supplies the data for determining what 
 part is justly assessed and what part is wrongly awarded. But 
 even in cases where the facts appear in special verdicts or find- 
 ings, the specific amount can not, as we think, be directly fixed 
 by the appellate tribunal unless the items included in the sum 
 named as damages are susceptible of severance. We suppose that 
 if a gross sum should be designated in an action for personal 
 injuries the appellate tribunal could not absolutely designate 
 the amount for which judgment should be rendered, unless it 
 appeared that improper elements entered into the computa- 
 tion, and that such elements could be separated from the other 
 elements which entered into the assessment of damages made 
 by the court or jury that tried the case. We do not assert that 
 the appellate tribunal may not require the successful party to 
 elect to enter a remittitur or suffer a reversal, for that we be- 
 lieve may be done in any case, but we do assert that the appel- 
 late tribunal can not in ordinary cases of recoveries for personal 
 injuries, or the like, where an assessment of damages is made 
 in gross, deny an election and absolutely direct what the re- 
 covery shall be. This must follow from the well settled and 
 well known rule that there is no fixed standard for the exact 
 measurement of damages, although there are certain general 
 
 1 Potter -'. Chicago, etc., Co., 22 Wis." tions for personal injuries, the court 
 
 615; Page V. Sumpter, 53 Wis. 652; can not absolutely direct what part 
 
 Pendergast v Hodge, 21 Mo. App. 138; shall be remitted, and that the only 
 
 Cook v. Hannibal, etc., Co., 63 Mo. 397. course is to remand the case for a new 
 
 It seems to us that where the damages trial. 
 are- assessed in grov*. as they are in ac-
 
 APPELLATE PROCEDURE. 
 
 rules to be observed in ascertaining and assessing the damages. 1 
 The cases generally affirm that in actions for personal injuries 
 the amount of the recovery is to be fixed by the jury, although 
 it is the duty of the court to so instruct them as to prevent them 
 from taking improper elements into consideration. 2 
 
 § 573. Costs in cases where a Remittitur is entered — Where a 
 party enters the proper remittitur on appeal the general rule is 
 that the judgment will be affirmed, but the affirmance will be at 
 the costs of the party who enters the remittitur. This is the 
 ordinary rule, whether the remittitur is voluntarily entered by 
 the party, or is entered by direction of the court. 3 While the 
 general rule is as we have stated it, there are, as we suppose, 
 some exceptions to it, although the exceptions can not be very 
 important or very numerous. The comprehensive powers of 
 an appellate tribunal are such that it may apportion costs as the 
 justice of the particular case may require. 
 
 § 574. Affirming as to some of the Parties and Reversing as to 
 Others — Where the interests of the parties to an appeal can be 
 rightfully severed, the trial court may affirm as to some of the 
 parties and reverse as to others. 4 It is, indeed, the rule that 
 
 1 Damages are, of course, to be com- must, in cases where a remittitur is en 
 pensatory, but what shall be a just com- tered, be within the discretion of the 
 pensation is to a great extent, although court. But the general rule stated lr. 
 not entirely, a matter for the jury. Ta- the text applies in the very great, ma 
 ber v. Huston, 5 Ind. 322; Carthage, joritj' of cases. And the rule jusuy 
 etc., Co. v. Andrews, 102 Ind. 138; applies in most cases. This is so io: 
 Pennsylvania Co. v. Marion, 104 Ind. the reason that where a remittitur is 
 239; Louisville, etc., Co. v. Falvey, 104 directed it is implied or declared mai 
 Ind. 409; Board v. Legg, no Ind. 479. something was awarded the appenee to 
 
 2 City of Delphi v. Lowrey, 74 Ind. which he was not entitled, ana where 
 520. this is true, there is a meritorious right 
 
 s Johnston v. Morrow, 60 Mo. 339; of appeal. If there is a meritorious 
 
 Miller v. Hardin, 64 Mo. 545; Clark v. right if appeal the party who success- 
 
 Bullock, 65 Mo. 535; Peck v. Childers, fully asserts it can not be justly bur- 
 
 7; Mo. 484; Higgs v. Hunt, 75 Mo. 106. dened with costs. 
 
 Particular cases must, of necessity, be * Cairns V. O'Bleness, 40 Wis. 469; 
 
 governed by special rules. No general Sutton v. McConnell, 46 Wis. 269; 
 
 rule can be formulated that will fitly or Rogers v. Weil, 12 Wis. 664; Blum v. 
 
 justly apply to all cases. In no small Strong, 71 Texas, 321, 6 S. W. Rep. 167; 
 
 degree the matter of apportioning costs Hamilton v. Prescott, 73 Tex. 565, n S.
 
 THE JUDGMENT ON APPEAL. 
 
 487 
 
 where the errors do not affect the parties jointly, they must 
 sever in their assignment of errors, for it has often been ad- 
 judged that an assignment of errors not good as to all the parties 
 who join in it is not good as to any of them. It must result, as 
 a necessary conclusion from this firmly established doctrine, 
 that separate judgments not only may be rendered, but often 
 must be rendered on appeal. But there may, of course, be 
 cases where the reversal must be of the entire decree or judg- 
 ment, although the interest of the parties may not, in strict- 
 ness, be joint. The rule seems to be that where justice can not 
 be fully done, or the rights of the parties fully adjudicated with- 
 out a new trial of the case or a new hearing of the suit, the en- 
 tire judgment or decree will be reversed and a new trial or new 
 hearing ordered. 1 Where the rights of one party are dependent 
 upon those of another or others, as often happens, it is neces- 
 sary that the judgment be reversed with such instructions as 
 will require a new trial or new hearing. 2 
 
 W. Rep. 548; Boone v. Hulsey, 71 Tex. court referred to Bayless v. Daniels, 
 176. q S.W. Rep. 531; Steeple v. Down- 8 Texas, 140; Houston v. Ward, 8 
 ing, 60 Ind. 47S; Fields v. Moul, 15 Abb. Texas, 124; Hopson v . Murphy, 4Tex- 
 Pr. Rep. 6; Mannsfield v. Allen, 85 Mo. as, 248; Burke v. Cruger, S Texas, 66, 
 1502. Where there is a joint judgment and other cases. These cases were re- 
 in which the interests are blended it can viewed by the court and it was said: 
 
 not be reversed as to one of the joint 
 parties only. This is the general rule. 
 McGillis v. Bishop, 27 111. App. 53. 
 But under the statutory provisions re- 
 
 "We think the conclusion to be deduced 
 from the apparently conflicting cases 
 is that this court, when it finds error in 
 the proceedings of the lower court as to 
 
 specting co-parties, it is probable that any party to the judgment, and not as 
 
 there are exceptions to the rule. See, 
 "Parties," ante, Chapter VII. 
 
 1 Gaar v. Millikan, 6S Ind. 208. The 
 court said in the case cited: "The 
 Kennards. therefore, are not entitled to 
 
 to another, and that a proper decision 
 of the case as to one is not dependent 
 upon the other, will reverse in part and 
 affirm in part, but, where the rights of 
 one party are dependent in any manner 
 
 a reversal of the judgment on their upon those of another, it will treat the 
 own account, but as the affirmance of judgment as an entirety, and, where a 
 
 the judgment as to them might pos- 
 sibly embarrass the appellee in the 
 further prosecution of his alleged cause 
 of action against the appellant, Abram 
 Gaar, it has seemed to us that the ends 
 of justice would probably he subserved 
 by the reversal of the entire judgment." 
 2 Hamilton v, Prescott 73 Tex. 565, 1 1 
 S. W. Rep. 548. In the case cited the 
 
 reversal is required as to one it will re- 
 verse the judgment as a whole." The 
 doctrine of the case from which we have 
 quoted is a sound one, and supplies, 
 perhaps, as good a test as can be given 
 for determining when a judgment 
 should be treated as an entirety and as 
 such reversed.
 
 488 APPELLATE PROCEDURE. 
 
 §575. Dependent Rights — Judgment — According to the test 
 suggested in the case cited in the note to the preceding para- 
 graph, 1 a judgment on appeal necessarily reverses a judgment 
 and sends back the entire case for a new trial or new hearing 
 where the rights of the parties are blended, although there may 
 not, in strictness, be a joint interest. This rule must prevail in 
 many cases where the interests of different lien-holders are in- 
 volved, since, while there may not be an absolute unity, there 
 is, nevertheless, such a dependency of interests as makes it 
 necessary to treat the decree appealed from as an entirety. 2 It 
 is evident that where there are blended interests involved, such 
 as lien-holders generally possess, the decree must, in most in- 
 stances, be treated as an entirety, for if it be not so treated jus- 
 tice can seldom be done. Where there is an ordinary personal 
 judgment for damages against two or more parties the general 
 rule under our statute probably is that the judgment of the trial 
 court is severable, but it is otherwise where there are blended 
 or commingled interests in property although such interests may 
 not, in strictness, be joint. The object of the code is to settle 
 one controversy in a single suit and not to permit it to be di- 
 vided into parts and litigated in parcels or divisions, so that it 
 is often important to reverse an entire decree in order that upon 
 a second hearing the whole controversy may be finally adjudi- 
 cated. 3 The policy of settling an entire controversy in one suit 
 
 1 Ante, § 574. • 3 Greenup v. Crooks, 50 Ind. 410; 
 
 2 Ailing v. Wenzel, 133 111. 264, 24 X. Minor v. Hill, 58 Ind. 176; McCaffrey 
 E. Rep. 551, S. C. 8 Railway & Corp. v. Corrigan, 49 Ind. 175; Harrison v. 
 L.J. 124; Jones V. Matthews ( Miss.), 4 Phenix,etc, Ins. Co., S3 Ind.575; ./Etna, 
 So Rep. 547; Bassett v. Warner, 23 Wis. etc., Co. v. Finch, 84 Ind. 301; Ulrich 
 
 Bond v.Wabash, etc., Co., 67 Iowa, v. Drischell, SS Ind. 354; Gaylord v. 
 
 712; Whipperman v. Dunn, 124 Ind. 349, City of La Fayette, 115 Ind. 423,433; 
 
 357. Citing Bisel v. Tucker, 121 Ind. Adair v. Morgentheim, 114 Ind. 303; 
 
 249, and State v. Templin, 122 Ind. 235. Masters v. Templeton, 92 Ind. 447; 
 
 In Whipperman v. Dunn, supra, the Woodworthv. Zimmerman, 92 Ind. 349; 
 
 court said: "It is perfectly clear that Ballew v. Roller, 124 Ind. 557, 558; 
 
 justice can not be done between the Horn v. Indianapolis Xational Bank, 
 
 parties without a new trial as to the 125 Ind. 381, 396; Stockwell v. State, 
 
 whole case. In such cases the court 101 Ind. 1; Bundy v. Cunningham, 107 
 
 will order a new trial of all the issues Ind. 360; Otis -'. De Boer, 116 Ind. 531, 
 
 in the cause to the end that justice may 534. 535; Lawrence v. Beecher, 1 16 Ind. 
 
 be done." 312, 314; Manigault v. Holmes, 1 Bailey
 
 THE JUDGMENT ON APPEAL. 
 
 489 
 
 is so clearly right and its effect so salutary, that it overbears all 
 merely formal and technical rules. The appellate tribunal pos- 
 sesses such broad and comprehensive power to mold and frame 
 its judgments so as to do substantial and complete justice be- 
 tween the parties, that it can always make such orders respect- 
 ing costs and their apportionment as may seem just and equit- 
 able. 
 
 j; 576. Trial Court's duty to obey the Mandate of the Appellate 
 Tribunal — The mandate of the appellate tribunal is law to the 
 trial court and must be strictly obeyed. 1 Where the mandate 
 directs that a particular judgment be entered, that a specified 
 ruling be made, or that a designated course be pursued, the 
 inferior tribunal must yield obedience to the directions given it. 
 Thus, where a new trial is directed it must be granted ; no other 
 action can be rightfully taken by the trial court. 2 So, where a 
 case is remanded upon a single point with specific directions 
 the trial court can not open the case generally. 3 No modifica- 
 tion of the judgment or decree directed by the appellate tribunal 
 
 (So. Car.), Eq. 278, Benjamin v. E4- 
 mira, etc., Co., 49 Barb. 441, S. C. 54 
 N. Y. 675; Murrell v. Smith, 51 Ala. 
 301 ; McComb v. Spangler, 71 Cal. 41S; 
 Hefner v. Northwestern, etc., Co., 123 
 U. S. 747. 
 
 1 Burnett v. Curry, 42 Ind. 272; Chap- 
 in v. Board, 21 Ind. 12; Cutsinger v. 
 Nebeker, 58 Ind. 401; Center Tp. v. 
 Board, no Ind. 579; Cunningham :•. 
 Ashley, 13 Ark. 653; Gunter v. Laffan, 
 7 Cal. 58S; Watson v. Avery, 3 Bush. 
 635; Caldwell v. Bruggerman, 8 Minn. 
 286; Henderson ;. Winchester, 31 Miss. 
 290; Henshaw v. Robertson, 1 Bailey 
 Ch. (So. Car.). 311; Cralle v. Cralle, S4 
 Va. 19S, 6 S. E. Rep. 12. 
 
 2 Argenti v. San Francisco, 30 Cal. 
 4 ;S; McMillan v. Baker. 92 X. C. no; 
 Myers v. McDonald, -68 Cal. 162. 
 
 8 McConnell v. Wall. 67 Texas. 352; 
 Conner v. Pope, 2^ Mo. App.344; Mc- 
 
 Intyre v. Mclnivre, 24 Mo. App. 166, 
 Mix v. People, 122 111. 641. See, gen 
 erally, Washburn, etc., Co. v. Chicago, 
 etc., Co., 1 19 111. 30, Gage v. Bailey, 1 19 
 111. 539; Davis v. Curtis, 70 Iowa. 39S; 
 Allen v. United States, 22 Ct. of CI. 
 300. See, generally, Titusville Iron 
 Works :•. Keystone Oil Co., 130 Pa. 
 St. 211, iS Atl. Rep. 739; Tipping v. 
 Robbins, 71 Wis. 507, 37 N. W. Rep. 
 427; Cox v. Louisville, etc., Co. (Ky). 
 11 S. W. Rep. SoS; Kneeland v. Amer- 
 ican, etc., Co., 140 U. S. 592, 1 1 Sup. Ct. 
 Rep«42f>; City oi New Orleans :•. Whit- 
 ney, 13S U. S. 595, n Sup. Ct. Rep. 42S. 
 In the case of McKinncv :■. State. 117 
 Ind. 26, it was held that where there is a 
 specific order in the mandate directing a 
 reassessment of damages the parties 
 can not amend their pleadings after the 
 case reaches the trial court under the 
 judgment remanding it.
 
 490 APPELLATE PROCEDURE. 
 
 can be made by the trial court ; no provision can be engrafted 
 upon it nor can any be taken from it. 1 
 
 § r )77. Scope of the .Mandate of Appellate Tribunal — It is not pos- 
 sible to lav down a specific rule for measuring the scope and 
 effect of a mandate from an appellate tribunal, since its scope and 
 effect must generally be determined from the language in which 
 it is expressed, or from the record and facts in the particular 
 instance. 2 It may be said, in a general way, that when it ex- 
 presslv directs that a controversy shall be terminated by a spe- 
 cific decree or judgment, x its effect is conclusive and covers the 
 entire case, but where it does not either expressly or impliedly 
 so direct the lower court as to prohibit amendments or the in- 
 troduction of new parties, that court may permit proper amend- 
 ments and the introduction of new parties. 3 Nor does the man- 
 dale always operate upon the trial court so as to exclude the 
 consideration of matters occurring subsequent to those involved 
 in the appeal. 4 Where a new trial is directed and no specific 
 instructions are given or rules declared, the trial court is not 
 bound to adhere to the evidence adduced on the former trial, 5 
 
 1 Hughes' Appeal, 90 Pa. St. 60; Sher- v. Belletta (Cal.), 11 Pac. Rep. 1097; 
 man v. Windsor, etc., Co., 57 \'t. 57; Smith v. Shaffer, 29 Neb. 656, 45 N . W. 
 Herstein v. Walker, 90 Ala. 477, 7 So. Rep. 936; McCurdy v. Middleton, 90 
 Rep. 821; Murrill v. Murrill, 90 N. C. Ala. 99, 7 So. Rep. 655. 
 
 120; Kershman v. Swehla, 62 la. 654. * Davidson v. City of New Orleans, 
 Where the appellate tribunal orders a 32 La. Ann. 1245; Sanders v. Peck, 30 
 dismissal, the trial court can not do 111. App. 238, but see same case on ap- 
 anything more than enter the appro- peal, 131 111. 407; Blandin v. Silsby, 62 
 priate judgment dismissing the action. Vt.69, 19 Atl. Rep. 639; Busby v. Mitch- 
 Wall v. Dodge, 3 Utah, 168. See.gen- ell, 29 So. Car. 447, 7 S. E. Rep. 618. 
 erally, Blacklock v. Small, 127 U. S. 96. See Crib v. Morse. 79 Wis. 193. 48 N. 
 
 2 It is. as has been often decided, \V. Rep. 489. See, also, cases first cited 
 proper to consider the judgments of in the following note. 
 
 courts with reference to the record and 5 McLennan v. Prentice, 79 Wis. 488, 
 
 facts before them. In the absence of 48 N.W. Rep. 487. In thecaseof Moore 
 
 the record and the facts of a particular :■. American, etc., Co., 60 Hun. 582, 15 
 
 case, the judgment of a court would N. Y. Supp. 3S2, the general doctrine 
 
 sometimes he unintelligible, at all was carried to a great length. Bonny 
 
 events, its full scope and true meaning v. Bonny (Ky.),g S. W. Rep. 404; Fort 
 
 could not be ascertained. Madison, etc., Co. v. Batavian Bank, 
 
 3 Perry v. Burton, 120 111. 599, iS X. 77 la. 393, 42 N. W. Rep. 331; Adams 
 E. Rep. 653; Green v. Springfield, 130 r. Smith. 6 Dak. 94. 
 
 111. 515, 22 N. E. Rep. 002; Cartagnino
 
 THE JUDGMENT ON APPEAL. I'.il 
 
 but where specific instructions are given or rules declared, it is, 
 of course, the imperative duty of the trial court to rigidly obey 
 them, for what the appellate tribunal adjudges it is not at liberty 
 to disregard directly or indirectly. 1 Where the reversal opens 
 the whole case, the only effect of the judgment on appeal is to 
 bind the trial court to follow the law as declared by the higher 
 court. 2 It does not always follow that because specific instruc- 
 tions are embodied in the mandate, no steps can be taken by 
 the trial court, for, while it is unquestionably true that no steps 
 can be taken that directly or indirectly contravene the express 
 or implied provisions of the mandate, there, nevertheless, may 
 be cases where steps may be taken in respect to matters touched 
 on by the mandate of the appellate tribunal. 3 
 
 § 578. The Law of the Case — It is a firmly settled principle 
 that the decisions of the appellate tribunal constitute the law 
 of the case upon all the points in judgment, no matter at what 
 stage of the proceedings they arise, or in what mode they are 
 presented. This rule is not one springing from the doctrine of 
 stare decisis, but it is one founded upon the same principle on 
 which rests the doctrine of res ad judicata. Questions before 
 the court for decision, and by the court decided as essential 
 to a final judgment, are conclusively and finally adjudicated. 
 The law as declared can not be changed upon a second or sub- 
 sequent appeal. This general doctrine is affirmed by many 
 cases, and, so far as we can discover, denied by none. 4 It is 
 
 1 Scroggs v. Stevenson (N. C), 12 Kress v. State. 65 Ind. 106; Braden v. 
 S. E. Rep. 1031. Graves, 85 Ind. 92; Test : . Larsh, 76 
 
 2 Needless v. Burk, 9S Mo. 474, 11 S. Ind. 452; Hawley v. Smith. 45 Ind. 1S3; 
 W. Rep. 1008; White v. Butcher, 97 Union, etc., Tp. v. First National Bank, 
 N. C. 7, 2 S. E. Rep. 59; Ford v. Ford, 102 Ind. 464; City of Logansport v. 
 72 Wis. 621, 40 N. W. Rep. 502. See Humphrey, 106 Ind. 146; Pittsburgh, 
 Mason v. Burke, 120 Ind. 404, 22 X. E. etc., Co. v. Ilixon, no Ind. 225. 1 fibbits 
 Rep. 119; O'Connell v. O'Learv, 151 v. Jack, 97 Ind. 570; Forgerson v. 
 Mass. S3, 2^ N. E. Rep. S26. Smith, 104 Ind. 246; Board v. Pritchett, 
 
 'McCoy v. McCoy, 33 W. Va. 60, \;Ind.fiS; Richmond Street Ry. Co. v. 
 
 10S. E.Rep. 19. See, generally, O'Brien Reed, 83 Ind. 9; Continental Lite Ins. 
 
 v. Gaslin, 24 Neb. 559, 39 N. W. Rep. Co. r. Houser, in End. 266; Nickless 
 
 449; District of Columbia v. McBlair, v. Pearson, 126 Ind. 477; Eversdon v. 
 
 T24 U. S. 320, S Sup. Ct. 547. Mayhew, 85 Cal. 1. 21 Pac. Rep. j.31; 
 
 4 Dodge v. Gaylord, $3 Ind. 365; Thompson v. Hawley, 16 Oregon. 251,
 
 492 
 
 APPELLATE PROCEDURE. 
 
 plainly evident that the rule is a sound and salutary one, since, 
 without such a rule, litigation might be endless and a contro- 
 versy remain unsettled. But this is not the only reason sup- 
 porting the rule, for it is supported by the principle that the 
 judgment of the court upon the questions before it is final and 
 can not be vacated after the close of the term. It is, however, 
 to be borne in mind that the rule does not go to the extent of 
 foreclosing a review of all the questions discussed, for it does 
 not, bv any means, go to that length. It is only such questions 
 as were before the court for decision and such as were expressly 
 or impliedly decided, that are conclusively adjudicated. The 
 reasoning or illustrations of the court do not constitute decis- 
 ions and hence the reasoning and the illustrations, although 
 they may be important as aids in determining what was actu- 
 ally decided, do not constitute the binding adjudication. 1 
 
 § ")79. Form and Effect of a Judgment of Affirmance — Where no 
 specific directions are deemed necessary and the conclusion of 
 
 19 Pac. Rep. S4; Chicago, etc., Co. v. 
 Hull, 24 Neb. 740. 40 N. W. Rep. 280; 
 Alexandria, etc., v. McVeigh, 84 Va. 41, 
 3 S. E. Rep.SS.s; Mc Williams v. Walt- 
 hall. 77 Ga. 7: Lee v. Stahl, 13 Col. 174, 
 22 Pac. Rep. 436; Steele V. Thompson, 
 38 Mo. A pp. 312; Green v. Springfield, 
 130 111. 515, 22 N. E. Rep. 602; Roberts 
 7 . Cooper, 20 How. (U. S.) 467; Sizer 
 - Main. 16 How. (U.S.) 98; Cumber- 
 land Coal, etc., Co. f. Sherman, 20 Mil. 
 117; Du Pont v. Davis, 35 Wis. 631; 
 Booth v. Commonwealth, 7 Metcf. 
 I Mass.) 285. In Hibbits v. Jack, sufra^ 
 it was said: " What was decided by a 
 case afterwards overruled continues to 
 be the law of the case as between the 
 parties and those claiming under them. 
 Hardigree v. Mitchum, 51 Ala. 151; 
 Well's Res Adjudicata and Stare De- 
 cisis, % 628." 
 
 1 In the case of Union School Tp. v. 
 First National Bank, 102 Ind. 404, 472, 
 the court said: "In our opinion a de- 
 cision rendered on appeal does not con- 
 
 clusively determine merely incidental 
 or collateral questions, but determines 
 only such questions as are presented 
 for decision and are decided as essential 
 to a just disposition of the pending ap- 
 peal." The Supreme Court of Cali- 
 fornia, in speaking of the law of the 
 case, said: "It has never, that we 
 are aware, been held to apply to ex- 
 pressions in an opinion which are 
 merely obiter, and we venture to say 
 that beyond something of that sort 
 there is nothing in the former opinion 
 of this court affecting the questions 
 presented on this appeal." Wixson v. 
 Devine, So Cal. 385, 3SS. A doctrine 
 similar to that stated in the text is de- 
 clared in other cases. Hughes v. De- 
 troit, etc., Co., 7S Mich. 399, 44 \. W. 
 Rep. 396; Clark v. Hershey, 52 Ark. 
 473, 12 S. W. Rep. 1077; Norton v. 
 Moshier (111.), 2S N. E. Rep. 463; Lu- 
 cas v. Board, 44 Ind. 524. and authori- 
 ties cited.
 
 THE Jl DGMENT ON APPEAL. I'.t.', 
 
 the appellate tribunal is that the judgment of the lower court 
 should be affirmed, a simple declaration of affirmance is all that is 
 essential, as the law annexes the necessary and appropriate inci- 
 dents. The appellate tribunal, in rendering a judgment which 
 simply affirms that of the court of original jurisdiction, does not 
 render a new judgment upon the demand acted upon by the 
 former court, it simply confirms the judgment of that tribunal. 1 
 Where there is a simple affirmance, the judgment remains in 
 force as of the date of its entry in the records of the trial court. 
 Even where a supersedeas is obtained, the appeal does not, as 
 is well settled, disturb the judgment below further than to sus- 
 pend its enforcement. A judgment affirming that rendered by 
 the trial court is sometimes said to " effect a merger," but this 
 statement requires qualification, for it is not, in strictness, true 
 that the judgment of the trial court "is drowned in that of 
 the superior court." The trial court judgment remains un- 
 disturbed, saving only that it is conclusively confirmed by the 
 judgment on appeal. This confirmation operates to a limited 
 extent as a merger, inasmuch as it concludes the trial court and 
 the parties, and absolutely precludes them from modifying or 
 abrogating the judgment affirmed. The authority of the trial 
 court as to all matters involved in the appeal and adjudicated 
 by the judgment there rendered is at an end. 2 Its authority, in- 
 deed, ends when the case is removed to the higher tribunal by 
 the appeal, and revives only when, if ever, it returns under an 
 order remanding the case. 3 
 
 § 580. Judgment of Reversal — A judgment reversing the judg- 
 ment or decree of the trial court, expressed in general terms and 
 
 1 Eno v. Crooke, 6 How. Pr. Rep. Abrams v. Lee. 14 111. 167; Chickering 
 
 462; Halsey v. Flint, 15 Abb. Pr. Rep. v. Failes, 29 111. 294; Lyon v. Merritt, 6 
 
 367. An appellate tribunal may add to Paige, 473. The conclusiveness of the 
 
 a judgment of affirmance such explana- judgment is not affected by the fact that 
 
 tions as may he necessary to make the the cause was submitted, on appeal, 
 
 judgment below fully understood. Mayo upon a defective record. Gregory v. 
 
 -•. Purcell. 3 Munf. (Va.) 243. Slaughter, 19 Ind. 342; Devoss v. Jay, 
 
 1 Herstein :\ \Yalker. 90 Ala. 477. 7 14 Ind. 400; State v, Daugherty, 59 
 
 So. Rep. 821; Dobson v. Simonton, 100 Mo. 104. 
 
 N. C. 56; Werborn v. Pinney, 7'' Ala. 3 See. " Effect of the Appeal." Chap- 
 
 201. /;/ re Cassidey, 95 N. C. 225; ter XXVII.
 
 194 
 
 APPELLATE PROCEDURE. 
 
 without specific directions or instructions, operates to com- 
 pletely annul the judgment or decree of the lower court and to 
 restore the parties to the position they occupied when the orig- 
 inal decree or judgment was rendered. 1 Its effect is substan- 
 tially the same as that of a judgment awarding a new trial, for, 
 in general, it opens up the whole case. 2 We have stated the 
 general rule in guarded terms, for we suppose that it is not cor- 
 rect to affirm that a judgment of reversal always opens up the 
 judgment below, as is sometimes said, for we suppose it incon- 
 trovertibly true that the judgment on appeal does not always or 
 necessarily open up the entire case. It surely would not do so 
 in a case where the error is in refusing to modify a decree or 
 judgment, or where there is some error affecting the judgment 
 or decree only in part. The judgment of reversal does, how- 
 ever, usually reach back to the first error, and from that point 
 generally opens up the whole case. 
 
 § 581. Costs on Reversal — Apportionment of — As a general rule 
 the reversal carries the costs from the first error. 3 But the 
 
 1 Mulin :■. Atherton, 6i N. II. 20; ment reversed except as a muniment 
 Ervin v. Collier. 3 Mont. 189; Lipp v. of title in favor of bona fide purchasers. 
 Hunt, 30 Neb. 469, 45 N. W. Rep. 6S5; Post, §§ 582, 583. After reversal the 
 Rose v. Garrett, 91 Mo. 65; Phelan v. judgment can not be effectively pleaded 
 San Francisco, 9 Cal. 15; Lewis v. St. in bar nor effectively employed as an 
 Louis, etc., Co., 59 Mo. 495; Crispen estoppel. Wood v. Jackson, S Wend. 
 v. Hannovan, 86 Mo. 160; Musser v. 9, 22 Am. Dec. 603; Taylor v. Smith, 
 Ilarwood, 23 Mo. App. 495. 4 Ga. 133; Oregonian Ry. Co. v. Ore- 
 
 2 State v. Templin, 122 Ind. 235, 23S; gon, etc., Co., 27 Fed. Rep. 277; Smith 
 Edwards v. Edwards, 22 111. 121; Hid- v. Frankfield, 77 N. Y. 414. 
 
 den v. Jordan, 28 Cal. 301. In the case 3 Doyle -'. Kiser, 8 Ind. 396; Conner 
 
 of Cox r\ Pruitt. 25 Ind. 90, it was said: v. Winton, 10 Ind. 25; Excelsior, etc., 
 
 " The reversal by this court, ex vi ter- Co. v. Brown, 47 Ind. 19; Winton v. 
 
 mini, vacates the judgment of the court Conner, 24 Ind. 107; Eigenmann v. 
 
 below without any action of that court. Kerstein, 72 Ind. Si; Shoemaker v. 
 
 On the filing of the certified opinion of Smith, 100 Ind. 40; Thomas v. Sim- 
 
 this court in the clerk's office of the mons, 103 Ind. 53S. Fees of stenogra- 
 
 circuit court, it was the duty of that pher are part of the costs. Wright V. 
 
 court to proceed with thecasefrom the Wilson, 9S Ind. 112. Where appellee 
 
 point reached by the judgment of re- enters satisfaction of judgment appel- 
 
 I That court having done its lant is entitled to recover the cost of the 
 
 duty, although in an informal manner, transcript. Monnett v. Hemphill, no 
 
 committed no error in taking jurisdic- Ind. 299. The cost of the transcript is 
 
 Hon of tlie cause." The reversal com- part of the costs of the appeal. R. S. 
 
 pletelv destroys the effect of the judg- 1SS1, § 665.
 
 THE JUDGMENT ON APPEAL. 495 
 
 plenary power of the court to so mold its judgments as to do 
 equity enables it to apportion the costs equitably, and it d 
 not invariably adjudge costs according to the general rule 
 stated. In the absence, however, of elements constituting the 
 particular case an exception to the general rule, the costs will 
 be apportioned as it requires. Where no specific directions are 
 given the uniform practice is to tax the costs under the rule. 
 
 S 582. Effect of Judgment of Reversal upon the rights of Bona tide 
 Purchasers — The provisions of our code protect parties who, in 
 good faith, purchase land sold under a judgment which is sub- 
 sequently reversed. 1 It excludes parties and attorneys so that 
 they can not successfully assert rights as good faith purchas- 
 ers. 2 It is clear that the provisions of the statute referred to in 
 the note must be considered in connection with the provisions 
 respecting the effect of a supersedeas, for we think that where 
 a supersedeas is rightfully issued and duly served, a sale upon 
 the judgment will not convey title. We incline to the opinion 
 that where a supersedeas is issued there can be no good faith 
 purchaser, although a sale may be made in disobedience of its 
 
 1 R. S. 1S81, § 169. The broad terms S.C.Si Am. Dec. 302; Stinson v. Ross, 
 of the statute can not, as it seems to us, 51 Me. 556, S. C. Si Am. Dec. 
 
 in view of other provisions of the stat- Little V. Bunce, 7 N. H. 4S5, S. C. 2S 
 
 ute and of the established rules of law, Am. Dec. 363; Gray v. Brignardello, 1 
 
 be given literal effect, for there must be Wall. 627; Shultz v. Sanders, 3S N. J. 
 
 some cases where the reversal destroys Eq. 154; Jesup v. City Bank, 15 Wis. 
 
 title. We suppose it clear that where 604,82 Am. Dec. 703; Stout v. Gully, 
 
 the judgment of the trial court is void 13 Col. 604, 22 Pac. Rep. 954; Macklin 
 
 there can be no bona fide purchaser. i\ Allenberg, 100 Mo. 337, 13 S.W. Rep. 
 
 Underwood v. Pack, 23 W. Va. 704. 350; Cheever v. Minton (Col.), 21 
 
 It is, however, probably true that the Pac. Rep. 710. An assignee of the 
 
 statute can he given effect by some- judgment who purchases is held to be a 
 
 what restricting the terms employed. party and liable to Ik- compelled to 
 
 2 The statute is merely declarative of make restitution. Mcjillton v. Dove, 
 the common law; its policy was to es- 13 111.486, 54 Am. Dee. ^49. 
 
 tablish confidence in judicial sales, right- ami liabilities of assignee, Ritch 
 
 Twogood V. Franklin. 27 Iowa. 239; v. Eichelberger, 13 Fla. 169; Reynolds 
 
 Hubbell V. Broadwell,8 Ohio, 120; Gott :•. Harris. 14 Cal. 067; Weber :•. 
 
 v. Powell, .(l Mo. 410; Frakes v. Brown, Tschetter (Dak.), 46 X. W. Rep. 201; 
 
 2 Blackf. 295; Dorsey v. Thompson, 37 Northam v. Gordon, 23 Cal. 255; Rey- 
 
 Md. 25; Fitzgibbon v. Lake, 29 111. 165, nolds :•. llosmer. 45 Cal. 616, 630.
 
 496 APPELLATE PROCEDURE. 
 
 provisions. 1 The title of one who is not a bona fide purchaser 
 is defeated by a reversal. 2 
 
 § 583. Restitution — As the reversal of a judgment completely 
 vacates and annuls it, 3 justice requires that one who is not pro- 
 tected by superior equities should restore all of value that he 
 has received or acquired by virtue of the invalid judgment. 
 The reversal, no matter whether made upon confession of er- 
 rors or after a contest, takes from the reversed judgment all 
 effect, and the parties to the judgment can take no benefit from 
 it. 4 It necessarily results from these settled and sound princi- 
 ples that a party who acquires title under a judgment annulled 
 by a reversal ought not to be permitted to hold it unless he is a 
 bona fide purchaser in all that the term implies. The common 
 law gave effect to this just and salutary principle by compelling 
 a party, not a bona fide purchaser, to make restitution of prop- 
 erty received by him under the invalid or ineffective judgment. 5 
 The rule is that where the party has the property in specie he 
 may be compelled to restore the property and the claimant can 
 not be put off with the payment of damages, but where the 
 
 1 Parker v. Courtnay, 28 Neb. 605, 5 Martin v. Woodruff, 2 Ind. 237. In 
 44 N. W. Rep. 863. the case cited it was said: "The de- 
 
 2 Mullin v. Atherton, 61 N. H. 20. fendant is entitled to no benefit from a 
 
 3 Ante, §580, and authorities collected judgment which ought not to have been 
 in note. Ragan v. Cuylcr, 24 Ga. 397, recovered." This is a terse expression 
 400; French v. Edwards, 4 Saw. C. C. of the principle upon which rests the 
 I- 1 ;. doctrine of restitution. Doe v. Crocker, 
 
 4 In Maghee v. Collins, 27 Ind. 83, the ' 2 Ind. 575; Splahn v. Gillespie, 48 [nd. 
 court said: "After a judgment has 397, 40S; Gott v. Powell, 41 Mo. 416; 
 been reversed it can have no force for Bickett v. Garner, 31 Ohio St. 28; 
 any purpose. It no longer binds either Quan Wo Chung Co. v. Laumeister, 83 
 of the parties to it. It will not bear Cal. 384, S. C. 17 Am. St. Rep. 261; 
 another suit for the same cause of ac- Lytle v. Lytic, 94 N. C. 522; Perry v. 
 tion against the party who was a de- Tupper, 70 N. C. 53S; Watson v. Trus- 
 fendant to it, and surely no principle of tees, 2jones,2ii; Little v. Bunce, 7 N. 
 justice requires that it should be deemed H. 485, 2S Am. Dec. 363; Murray v. 
 a bar in favor of a stranger jointly Berdell, 9S N. Y. 480; Hall v. Wells. 54 
 liable with him originally. If there be Miss. 289; Shaw v. Fleming, 5 Houst. 
 a rule of law to that effect it is wholly 155; Runyon v. Hale, 10 Ark. 476; 
 technical and arbitrary, and without Harlan v. Scott, 2 Scam. 65; Kennedy 
 any support in sound reason or good v. Hanner, 19 Cal. 374. 
 
 morals."
 
 THE JUDGMENT ON APPEAL. 
 
 property can not be restored the claimant is, of course, entitled 
 to compensation. 1 
 
 § 584. Restitution — Practice — In some of the States the order 
 of restitution is made directly by the appellate tribunal, and 
 it is the judgment of that tribunal that effects a restoration of 
 the specific property. 2 Our statute, in accordance with its gen- 
 eral purpose to establish a system requiring cases to be re- 
 manded to the trial court for the entry of the ultimate judg- 
 ment," provides that the party entitled to restitution " may 
 notify the purchaser or his tenant, or other person in possession, 
 that at the next term he will move the court which rendered 
 the judgment to restore him to the possession of the premises." 4 
 This provision requires the judgment of restitution to be pro- 
 nounced by the court of original jurisdiction, but, upon the 
 principle stated in preceding paragraphs of this chapter, the 
 appellate tribunal has power to direct the court below to enter 
 a judgment of restitution upon the proper steps being taken by 
 the party entitled to a restoration of the specific property. The 
 remedy provided by the statute is a summary one. 6 The statute 
 is remedial in its nature and salutary in its effect, and should 
 be liberally construed. One of the leading objects which the 
 statute is designed to accomplish is that of ending litigation by 
 directing a restoration of the property without compelling the 
 
 1 The claimant is entitled to the prop- Coster v. Peters, supra. See, generally, 
 erty itself, not simply to the value of People v. Livingston, 80 N.Y. 66; Brit- 
 tle property. Gott v. Powell, 41 Mo. ton v. Phillips, 24 How. Pr. Rep. in; 
 416: Bickett v. Garner, 31 Ohio St. 2S. Lott v, Swezey, 29 Barb. 87; Holloway 
 
 2 Stockman v. Riverside.etc, Co., 64 v. Stephens, 1 Hun. 30S; Scholey v. 
 Cal. 57; Ex parte Morris, 9 Wall. 605. Halsey. 72 N. Y. 37S. 
 
 See, also, Pico v. Cuvas, 48 Cal. 639, 8 Ante, § 564. See, also, Williams v. 
 •643; Kennedy -'. Hamer, 19 Cal. 374, Port, 9 End. 551; Williams v. Jones, 14 
 386; Reynolds v. Harris, 14 Cal. 667, Ind. 363; Stockton r. Coleman, 42 Ind. 
 68S. It is held that the statute does not 2S1. 
 make it imperative upon the court to * R. S. 1SS1, § 672. 
 •order a restitution. Coster v. Peters, 5 The remedy is held, and we think 
 7 Rob. (N. Y.), 3S6, S. C, 4 Abb. Pr. justly, to be a cumulative one. Lott ;■. 
 (N. S.) 53. It is, however, held that it Swezey. 29 Barb. 87; Kidd V. Curry, 
 may be directed, as a matter of course. 29 Hun. 215; Scholey V. Halsey. 72 X. 
 Estus v. Baldwin, 9 How. Pr. Rep. So; Y. 37S. Our code gives express sane- 
 People V: Johnson, 38 N.Y. 63, 66. The tion to this general doctrine. R. S. 
 .right may be lost by inexcusable delay. 1SS1 , $ 673. 
 
 32
 
 498 
 
 APPELLATE PROCEDURE. 
 
 claimant to resort to a formal action, and, as the object is one 
 favored by high considerations of public policy and supported 
 by sound principle, the appellate tribunals ought to freely and 
 liberally apply its provisions in cases where justice demands 
 restitution. The provisions of the statute concerning the hear- 
 ing and procedure seem to contemplate the formation of an 
 issue, for the statute declares that : " Upon proof that the notice 
 has been served ten days the court may proceed to hear and 
 determine the issues made by the parties," x but, broad as these 
 words are, it is, nevertheless, evident that, when taken in con- 
 nection with other provisions of the code and considered with 
 reference to the purpose of its framers and the object they in- 
 tended to accomplish, the issue must, of necesssity, be a nar- 
 row and limited one. It is hardly possible that the code con- 
 templates the opening of the entire case. We can see no rea- 
 son to doubt that the only issue that can properly be formed 
 is, whether the claimant is entitled to a judgment restoring the 
 property taken from him under the judgment vacated by the 
 judgment on appeal. This must be so for the judgment on ap- 
 peal is conclusive as to the ineffectiveness of that rendered by 
 the trial court, so that the only question open to controversy is 
 the right to restitution. 
 
 § 585. Finality of the Judgment on Appeal— In affirming, as we 
 have done, that the judgment on appeal concludes both the 
 trial court and the appellate tribunal, we have impliedly, at 
 least, shown that in important particulars the judgment on ap- 
 peal is final in all that the term implies. But it is final in other 
 respects than those indicated. It is final in the sense that after 
 the close of the term at which it was rendered the court that 
 rendered it can not vacate it, but this statement is to be deemed 
 limited by the doctrine stated in the paragraph which follows. 2 
 
 1 R. S. iSSi, § 673. v. Stewart, 3 How. (U. S.) 413; Martin 
 
 2 Center Township v. Board, no Ind. v. Hunter, 1 Wheat. 304; Skillern v. 
 579; Hungerford v . Cushing, S Wis. May, 6 Cranch. 267. It is upon the 
 324; State v . Wapucca Bank, 20 Wis. general principle stated in the text that 
 640. In the case last cited the court re- it was held that after the case reaches 
 ferred to the following cases as sustain- the trial court under the order remand- 
 ing its views. Washington Bridge Co. ing it the appellate court can not con-
 
 THE JUDGMENT ON APPEAL. 
 
 
 Where there is a simple judgment of reversal, that is, one with- 
 out specific instructions, the decision is not final in such a sense 
 as to interdict further proceedings, 1 but even in such a case the 
 judgment is final as to all questions presented for decision and 
 decided as essential to a disposition of the pending appeal. 
 Where there is a judgment of reversal completely putting an 
 end to the controversy by specific directions or instructions it 
 is, as a general rule, to be regarded as final in the strictest 
 sense of the term. 2 We have stated only general rules. We 
 do not mean to imply that the appellate tribunal may not in 
 cases of accident or fraud relieve a party who presents a mer- 
 
 trol the enforcement of the judgment. 
 Szorn v. Lamar, 71 Ga. 85; Wallaces. 
 Stutsman County, 6 Dak. 1. It seems 
 clear that this must be the correct doc- 
 trine, for under our statute the opinion 
 must be certified to the trial court, but 
 it must be the true doctrine under any 
 system, otherwise we should have the 
 strange anomaly of one case in two 
 courts at the same time. 
 
 1 Houston v. Moore, 3 Wheat. .433, 
 Smith v. Adams, 130 U. S. 167. In the 
 case last cited it was said: "A judg- 
 ment of reversal is only final when it 
 also enters or directs the entry of a 
 judgment which disposes of the case." 
 
 2 In speaking of such a judgment the 
 Supreme Court of the United States 
 >aid: "That judgment is final for the 
 purposes of a writ of error to this court, 
 which terminates the litigation between 
 the parties on the merits of th<_ case, so 
 that if there should be an affirmance 
 here, the court below would have noth- 
 ing to do but to execute the judgment 
 already rendered. Bostwick t'. Brinker- 
 hoff, 106 U. S. 3, and the numerous 
 cases there cited. The judgments in 
 these cases are of that character. The 
 litigation is ended, and the rights of the 
 parties on the merits have been fully 
 determined. Nothing remains to be 
 done but to require the inferior court to 
 perform the ministerial act of entering 
 
 the judgments in that court which have 
 been ordered. This is but carrying the 
 judgment of the Supreme Court, which 
 has been rendered, into execution. 
 Nothing is left to the judicial discretion 
 of the court below. The cases relied 
 on in support of the motion to disi 
 were all judgments or decrees of rever- 
 sal with leave for further proceedings 
 in the inferior court." See, also, Brown 
 v. Union Bank, 4 How.( U.S.) 465; Gib 
 bons v. Ogden, 6 Wheat. 44S, and note. 
 Pepper v. Dunlap, 5 How. (U.S.);!, 
 Tracy v. Holcomb, 24 How. (U. S.) 426; 
 Baker v. White, 92 U. S. 176, Davis : . 
 Crouch, 94 U. S. 514; Atherton v. Fow- 
 ler, 91 U.S. 143, Williams r.Bruiiy, 102 
 U. S. 248, 255, Moore V. Robbin- 
 Wall. 5SS. It is true that the decisions 
 in the cases cited are directed to a phase 
 of the subject somewhat different from 
 that discussed in the text, but they as- 
 serl the principle there stated, inasmuch 
 as they clearly exhibit the difference be- 
 tween a general judgment of reversal 
 and a judgment of reversal accom- 
 panied by specific instructions or di- 
 rections which effectually put an end 
 to the particular suit or action. Spe- 
 cific directions may end a controversy 
 as effectually as an unconditional judg- 
 ment of affirmance. Chouteau :•. Allen, 
 74 Mo. 56; Connor v. Pope, 2^ Mo. 
 A.pp. 344-
 
 500 APPELLATE PROCEDURE. 
 
 itorious cause, who has been free from fault, prompt and dili- 
 gent ; on the contrary, we are satisfied that the powers of the 
 court are of such high and comprehensive character, for both 
 the elements of equity and of law are blended in its powers and 
 authority, that it may give relief in the proper case. But cases 
 in which such relief can be granted are extraordinary ones and 
 very seldom arise. 
 
 § 586. Effect of a Petition for Rehearing upon the rule stated in the 
 preceding paragraph — It seems quite clear that where a petition 
 for rehearing is filed within the time limited, the case remains 
 in the appellate tribunal until judgment is given upon the peti- 
 tion. As long as the petition remains undisposed of the case 
 remains in the appellate tribunal. A petition filed at one term 
 necessarily carries the case over to the term at which a ruling 
 is made on the petition. It is evident, also, that a party entitled 
 to petition for a rehearing may file his petition within the time 
 prescribed, although the time may not expire until after a new 
 term has begun.
 
 Part II. 
 
 ERROR IN JUDICIAL PROCEEDINGS.
 
 CHAPTER I. 
 
 THE NATURE OF JUDICIAL ERROR. 
 
 $ 587. Error— Definition. § 593. A wrong ruling not probably 
 
 558. Erroneous rulings, prejudicial is not available 
 
 559. Ruling righl when made does error. 
 
 not constitute error. 594. Presumption of prejudice from 
 
 590. The ultimate ruling is decisive. an erroneous ruling. 
 
 591. Presumption that the court ad- 595. No error where complaining 
 
 heres to a declared or indi- party secures his rights by 
 
 cated theory. amendment. 
 
 592. That is not error which the rec- 596. Pleadings upon which error is 
 
 ord does not show to be error. alleged must be in the record. 
 
 §587. Error — Definition — It is sufficient for our immediate 
 purpose to define the term "error" in a rough way, and this 
 we do by saying that it means a wrong ruling or decision. A 
 wrong- decision is one which violates some fundamental rule or 
 principle of law, or some rule of pleading, practice, or evi- 
 dence. But a mistake, although it may, in a general sense, be 
 erroneous, is not always such an error as will be available on 
 appeal. It is always essential to success on appeal to show a 
 wrong ruling or decision, but a wrong ruling does not invari- 
 ably constitute error. Speaking with strict accuracy, an " er- 
 ror " is such a wrong ruling as probably induced a wrong judg- 
 ment, but the term is not ordinarily used in this strong sense, 
 for other words are generally added to the term when error 
 sufficient to warrant a reversal is meant. If a mistake in de- 
 claring or applying a rule of law does not probably conduce to 
 a wrong judgment, there is, in strictness, no error, although it 
 is not uncommon to say that the " ruling constitutes error," or 
 that there " was error in the ruling," when no more is meant 
 than that a mistake was made by the trial court but not one re- 
 quiring that a judgment be reversed or annulled. 1 It is. in 
 
 1 It will be shown at another place that there are two general classes of 
 errors, available and unavailable. 
 
 (503)
 
 504 ERROR IN JUDICIAL PROCEEDINGS. 
 
 general, true, that a mere irregularity does not constitute error, 
 but an irregularity may be error where it directly or influen- 
 tially conduces to an erroneous final decision. An error in the 
 true and strict sense is such an irregularity or such a mistake 
 in declaring or applying some fundamental rule, or some estab- 
 lished rule of pleading, practice, or evidence, as conduces to a 
 wrong judgment, or so operates as to make the final decision 
 erroneous. 
 
 § 588. Erroneous Rulings — Erroneous rulings (using the term 
 "erroneous rulings" as meaning wrong rulings, which prob- 
 ably tend to produce a wrong judgment or decree) are sufficient 
 to overthrow a judgment or decree upon a direct attack well 
 made, but they are not available in a purely collateral attack. 
 A judgment may be radically erroneous and not void. If there 
 is a court and jurisdiction the judgment is not void, and if not 
 void, no collateral attack can prevail against it. 1 A party may 
 appeal from a void judgment but he is not bound to do so, for 
 it may be utterly disregarded ; he can not, however, disregard 
 a judgment which is simply erroneous, for, until set aside or 
 reversed by a judicial order or decree, it is effective. It is er- 
 roneous judgments that appellate courts have to deal with in 
 the vast majority of cases brought to their bar. A judgment is 
 
 1 Ex parte Bigelow, 113 U. S. 328; but it may be attacked in the lower 
 
 Goodell v. Starr, 127 Ind. 19S; Harrod courts for matters not apparent of rec- 
 
 V. Dismore, 127 Ind. 33S; McLaughlin ord. State v. Morrison, 103 Ind. 161 
 
 V. Etchison, 127 Ind. 474; Boyer v. Indiana, etc., Co. v. Allen, 113 Ind. 5S1 
 
 Berrvman, 123 Ind. 451; Cicero Tp. v. Robertson v. Huffman, 92 Ind. 247 
 
 Picken, 122 Ind. 260; Essig v. Lower, McAlpine v. Sweetser, 76 Ind. 7S 
 
 120 Ind. 239, and cases cited. A void Weiss v. Guerineau, 109 Ind.43S; Wil- 
 
 judgment, as a general rule, carries its bite v. Wilhite, 124 Ind. 226. In Wolfe 
 
 own condemnation. Kingman v. Paul- v. Davis, 74 N. C. 597, 599, it was said: 
 
 son, 126 Ind. 507; Bailey v. Martin, 1 19 "An erroneous judgment is one ren- 
 
 Ind. 103; Earle v. Earle,9i Ind. 27. It dered according to the course and prac- 
 
 is really an absolute nullity; that is no tice of the courts, but contrary to law. 
 
 judgment save in form, and not always as where it is for one party, when it 
 
 in that, at all events it is utterly desti- ought to be for the other, or for too lit- 
 
 tute of force. Smith v. Hess, 91 Ind. 424. tie or too much." See, also, Koonce v. 
 
 A voidable judgment is one which may Butler, S4 N. C. 221. "Erroneous" 
 
 be avoided or annulled. Smith v. Hess, means, as usually employed, deviating 
 
 supra. On appeal the record must from the law. Thompson v. Doty, 72 
 
 supply the means of overthrowing it, Ind. 336, 33S.
 
 THE NATURE OF JI DICIAL ERROR. 
 
 erroneous wherever a wrong ruling denies a party a substantial 
 legal right, although the ruling may be made early in the prog- 
 ress of the case. The wrong may, of course, be subsequently 
 rectified, 1 but if it is not it may be sullicient cause for reversal, 
 no matter at how early a stage of the case it was committed. 
 
 § 589. Ruling Ri^ht when Made does not constitute Error— 
 
 Whether a ruling does or does not constitute error is to be de- 
 termined, as a general rule, by the condition existing at the 
 time it was made. If at the time the ruling was made it was 
 not erroneous, it can not be made erroneous by the subsequent 
 acts of the parties. Thus, the withdrawal of the general denial 
 in an answer after a ruling upon demurrer can not make the rul- 
 ing wrong, although if the general denial had been withdrawn 
 before the ruling was made, the ruling would have been errone- 
 ous in the strictest sense. 2 The court may change the con- 
 dition of affairs and impress error upon a ruling, but a change 
 wrought by the subsequent acts of the parties can not have that 
 effect. If the party desires to secure an available ruling, that 
 is a ruling upon which error may be properly alleged, in cases 
 such as those cited in the note, he must, after withdrawing the 
 denial, refile the affirmative paragraph and secure a ruling upon 
 it as refiled. If that ruling is adverse, then error may be prop- 
 
 1 Mover v. Brand, 102 Ind. 301. first paragraph could not change the 
 
 2 Reeder :•. Maranda, 66 Ind. 4S5, force of the ruling upon the record.'' 
 4S6. In the case cited the court said: Indianapolis, etc., Co. v. City of Law- 
 " To be sure, the general denial was renceburgh, 37 Ind. 4S9, is to sub- 
 afterwards withdrawn, but its with- stantially the same effect. Anerrone- 
 drawal could not make a ruling errone- ous ruling made after the judgment 
 ous which was not so at the time it has been pronounced and entered 
 was made." A similar ruling was made can not, it has been held, overthrow 
 in Cincinnati, etc., Co. V. Smith, 127 the judgment. Bowrell v. Zigler, 19 
 Ind. 461, where it was said: "As it Ohio, 362. We suppose, however, that 
 was not available error to sustain a de- much depends upon the character of 
 murrer to the reply at the time of the the ruling, tor if it should so operate 
 riding, we do not think the appellant as to affect the judgment materially 
 could make it available by withdrawing and directly it might be error. We 
 the general denial on a subsequent day." suppose, also, that a wrong ruling >!e- 
 In harmony with the decisions in the priving a party of a right may he such 
 eases cited is the decision in Kidwell :\ an error as can be made available on 
 Kidwell, 84 Ind. 224, 22S. where it was appeal. 
 
 said: "Appellant's withdrawing of the
 
 506 
 
 ERROR IX JUDICIAL PROCEEDINGS. 
 
 erly alleged. But, although error may be properly alleged, it 
 does not necessarily follow that the judgment will be reversed, 
 since the paragraph may be good, or the question may not be 
 properly saved. It is one thing to properly allege error and 
 quite another thing to make it appear that there is available 
 error. 1 
 
 § 590. The ultimate Ruling is Decisive — If the ultimate ruling 
 in a case is clearly right, intermediate mistakes are not of con- 
 trolling importance. If that ruling is right there is no error. A 
 mere mistake or irregularity can not be regarded as error 
 where it is substantially rectified by subsequent and controlling 
 rulings. 2 But if the mistake or irregularity is carried forward 
 and so warps the course or rulings of the court as to operate to 
 the substantial injury of the party complaining, there is error 
 
 1 " Errors in judicial proceedings," 
 says Mr. Powell, " are such mistakes or 
 deviations from those principles of law 
 deemed necessary in the due adminis- 
 tration of justice, which, when found in 
 tlie.record affecting the judgment to the 
 injury of the party, will be corrected by 
 being reversed or modified. Such error 
 must be substantially wrong, operating 
 to the injury of the party, and which he 
 lias not waived by his act or consent, or 
 which has not been otherwise cured, or 
 it will not be considered by the appel- 
 late as an object of reversal." Powell's 
 Appellate Proceedings, 115. It is evi- 
 dent from this that where a ruling 
 is right when made there can be no 
 error, and that regard must be had to 
 the facts and pleadings before the court 
 at the time it made its decision, for any 
 other conclusion would place it in the 
 power of parties to transform a right 
 ruling into a wrong one. In short, no 
 ruling can be wrong, or erroneous, 
 where there is no deviation or depart- 
 ure from the rules of law, and there is 
 no departure or deviation where the 
 court acts upon the facts or pleadings as 
 
 they appear, by the record, at the time 
 of making the decision. 
 
 3 This principle is illustrated by Fell 
 v. Muller, 7S Ind. 507, where it was 
 held that if a motion to suppress depo- 
 sition is sustained, but the deposition is 
 subsequently permitted to go in evi- 
 dence, there is no error. The principle 
 is applied in the cases which hold that 
 errors in stating conclusions of law are 
 not regarded where the ultimate judg- 
 ment is correct. Krug v. Davis, 101 
 Ind. 75, 77; Whitworth v. Ballard, 56 
 Ind. 279; Chicago, etc., Co. v. Barnes, 
 116 Ind. 126; Hill v. Ilazen, 93 Ind. 
 109; Slauter v. Favorite, 107 Ind. 291; 
 White v. Chicago, etc., Co., 122 Ind. 
 317, 330. Where an instruction works 
 no prejudice there is no available error. 
 Wallace v. Cravens, 34 Ind. 534. For 
 other decisions declaring that if the 
 ultimate conclusion is right, interme- 
 diate errors will be disregarded, see 
 Whitworth v. Ballard, 56 Ind. 279; 
 Pennington v. Nave, 15 Ind. 323; Check 
 v. Glass. 3 Ind. 2S6; State V. Michaels, 
 8 Blackf. 436; Butt v. Butt, 11S Ind. 31, 
 33; Bothwell :'. Millikan. 104 Ind. [62; 
 Mason v. Mason, 102 Ind. 3S.
 
 THE NATURE OF JUDICIAL ERROR. 507 
 
 within the meaning of the law. If the wrong ruling asserts a 
 definite and clearly marked theory, the presumption is that the 
 court adhered to that theory, unless the record shows the con- 
 trary, and if that theory is wrong and probably works injury 
 there is error. 
 
 § 591. Presumption that the Court Adheres to a Declared or Indi- 
 cated Theory — It is the right of parties to assume, in the absence 
 of countervailing rulings or indications, that a court will adhere 
 to a theory clearly indicated by a ruling. Where the theory 
 thus indicated is wrong and is such as will probably lead to an 
 erroneous decision, it will be presumed on appeal, nothing to 
 the contrary appearing, that the case was tried on the theory 
 indicated by the ruling. 1 Thus, if the trial court erroneously 
 overrules a demurrer to a bad paragraph of answer, the pre- 
 sumption is that it tried the case upon the theory asserted by 
 the ruling on the answer. Any other rule would be unjust and 
 subversive of principle, since the rulings of courts are theoreti- 
 callv always, and actually in most cases, made after solemn de- 
 liberation for the purpose of indicating the lines upon which the 
 case must be conducted. 2 It is no comfort to a plaintiff in a 
 case where a bad answer is held good, to be told that there are 
 other paragraphs of the answer under which the same facts are 
 admissible in evidence ; for the declaration of the ruling is that 
 if the defendant proves the facts stated in the answer he will 
 succeed, although he proves no other. A ruling directly made 
 in such a case settles the law, as far as the trial court can settle 
 it, for the particular controversy, and if the ruling injures the 
 
 1 Abdillr. Abdill, 33 Ind.460; Kern- ler, 128 Ind.385, 37 N- E. Rep. 721; Par- 
 odies. Caldwell, 46 Ind. 153, 158; Over kerf. Medsker. So Ind. 155; Wheeler:. 
 v. Shannon, 75 Ind. 352, Sims v. City of Me-shing-go-me-sia, 30 Ind. 402. In 
 Frankfort, 79 Ind. 446, 449; Eve V. the case last cited it was; said: '• It must 
 Louis, 91 Ind. 457, 463; Board v. Arm- be held, nothing appearing to the con- 
 strong, 91 Ind. 52S, 532; McComas V. trary, that the court below tried the 
 Haas, 93 Ind. 276, 2S0; Epperson v. case on the theory of the law as ruled 
 Hostetter, 95 Ind. 5S3. 587; Weir v. on the demurrers in making up the 
 State, 96 Ind. 311, 315: Thompson v. issues." 
 
 Lowe, in Ind. 272,279, 12 N. E. Rep. * A case tried on a wrong theory 
 
 476; Messick v. Midland R. Co.. 128 generally results in a wrong judgment 
 
 Ind. 81, 27 N. E. Rep. 419; Scott v. Stet- Board v. Johnson, 127 Ind. 23S.
 
 508 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 plaintiff he has just reason to complain. The trial court may, 
 to be sure, change its ruling, but there is no presumption that it 
 will do so, nor any presumption that it has done so where there 
 are no facts or recitals upon which such a presumption can be 
 built. 1 
 
 § 592. That is not Error which the Record does not show to be 
 Error — Error appears by the record whenever it exists. Where 
 no error appears of record there is none in contemplation of 
 law. A ruling must appear by the record and from the record 
 it must be shown to be erroneous in the strict sense, that is, it 
 must appear that the ruling was wrong and that it probably so 
 operated as to bring about a wrong final result. 2 
 
 § 593. A wrong Ruling not probably Prejudicial is not Available 
 Error — A ruling may be wrong and yet not constitute error in 
 
 1 A special finding may show that 
 the ruling was not prejudicial. Wall- 
 ing v. Burgess, 122 Ind. 299, 30S, citing 
 Tracewell v. Farnsley, 104 Ind. 497; 
 Nixon v. Campbell, 106 Ind. 47; Krug 
 v. Davis, 101 Ind. 75. 
 
 2 We have elsewhere shown that er- 
 rors must be manifest on the face of the 
 record. To the proposition that the 
 errors must appear to be probably pre- 
 judicial we cite Harter v. Elzroth, m 
 Ind. 159, where it was said: "It has 
 long been the settled rule that this court 
 will not reverse a judgment of the trial 
 court, unless the record affirmatively 
 shows the existence of the errors urged 
 by the complaining party, and, also, 
 that the errors were, or probably were, 
 prejudicial to the party against whom 
 they were committed." The court cited 
 Binns v. State, 66 Ind. 42S; Cline v. 
 Lindsey, no Ind. 337; McKinsey v. 
 McKee, 109 Ind. 209. We also cite 
 Peden v. Mail, 1 iS Ind. 556, 559; Perkins 
 v. I lav ward, 124 Ind. 445; Lett v. ■ 
 Horner, 5 Blackf. 296; Indianapolis, etc., 
 Co. :•. Herkimer, 46 Ind. 142; Nixon v. 
 Campbell, 106 Ind. 47; Kernodle v. 
 
 Gibson, 114 Ind. 451. In the case last 
 cited the court said that " although er- 
 rors appeared there could be no re- 
 versal," because the record fails to show 
 that any of such matters, even if er- 
 roneous, could or did harm the plaint- 
 iffs. Passmore v. Passmore, 113 Ind. 
 237. See, also, Morningstar v. Musser 
 (Ind.), 28 N. E. Rep. 1119; Devereux v. 
 Champion, etc., Co., 17 So. Car. 66, 72; 
 Livingston v. Dunlap, 99 N. C. 26S; 
 McGowan v. Wilmington, etc., Co., 95 
 N. C.417; Boutelle'r. Westchester.etc, 
 Co., 51 Vt. 4. The rule was thus stated 
 by the Supreme Court of Ohio: "To 
 justify the reversal of a judgment, the 
 record must affirmatively show not only 
 that error intervened, but that it was to 
 the prejudice of the party seeking to 
 take advantage of it." Scovern v. State, 
 6 Ohio St. 2SS. See, also, Reynolds v. 
 Rogers, 5 Ohio, 171, 172; May v. State, 
 14 Ohio, 461, 467; Ball v. Cox, 29\V.Ya. 
 407, 1 S. E. Rep. 673; McBride v. Lath- 
 rop, 24 Neb. 93; Snyder v. Snyder, 75 
 Iowa, 255, 39 N. W. Rep. 297; State v. 
 Parker, 106 N. C. 711.
 
 THE NATURE OF JUDICIAL ERROR. 
 
 the true and strict sense of the term. If the record does not 
 show that it was probably prejudicial, that is, that it probably 
 conduced to a wrong final decision, it is not really error. It is 
 not necessary that the record should show that the wrong rul- 
 ing certainly brought about a wrong result, for it is sufficient 
 if it appears that it probably influenced the court to a wrong 
 conclusion. This doctrine is illustrated by the cases which 
 hold that rejecting competent evidence that could not have 
 influenced the decision, or admitting incompetent evidence 
 where it could not have conduced to a wrong decision, is not 
 error. 1 There is some difficulty in giving practical effect to the 
 general rule inasmuch as it is sometimes difficult to determine 
 what cases fall under it and what cases constitute exceptions. 
 
 S 594. Presumption of Prejudice from Erroneous Ruling — There 
 are cases which seem to form exceptions to the general rule 
 that the record must make it appear that the wrong ruling prob- 
 ably prejudiced the complaining party, but upon a close analy- 
 sis it will be found that these cases are apparent rather than 
 real exceptions. The principle upon which they proceed is 
 that the ruling is in and of itself of such a nature and of such 
 force as to create the presumption that it conduced to bring 
 about a wrong result. If the evidence is in the record and is 
 conflicting the rejection of material and competent evidence 
 may be presumed error inasmuch as the party offering it had a 
 right to put forward all the material or competent evidence he 
 could secure, and the denial of the right in such a case as that 
 supposed is presumptively prejudicial. 2 So it may be in many 
 
 'Turner v. Fendall, i Cranch..n7; v. State, j~ Ind. 251: Dickinson v. 
 
 Very :•. Watkins, 23 How. (U. S.) 469; Colter, 45 Ind. 445; Indianapolis, etc., 
 
 Gregg v. Moss, 14 Wall. 564; Cannon Co. v. Anthony, 43 Ind. 183; Carter :•. 
 
 v. Pratt, 99 U. S. 619; Hornbuckle v. Pomeroy, 30 Ind. 438; Aylesworth v. 
 
 Stafford, in U. S. 3S9; Lucas v. Brown, 31 Ind. 270; McDermitt :•. 
 
 Brooks, iS Wall. 436; Wilson v. Hoss,24 Hubank, 25 Ind. 232; Wayne Co.. etc., 
 
 U. S. Sup. Ct. Rep. (Lawyer's ed.) 270; Co. v. Berry. 5 Ind. 2S6; Scott v. In- 
 
 Clark v. Fredericks, 105 U. S. 4; Cava- dianapolis Wagon Works, 4S Ind. 75; 
 
 zos v. Trevino, 6 Wall. 773; Chicago Smith v. Smith, 3 Ind. 303; Pettis : . 
 
 v. Greer, 9 Wall. 726; Mining Co. v. Johnson, 56 Ind. 139. 
 
 Taylor, 100 U. S. 37; Cooper v. Coates, * So the admission of incompetent 
 
 21 Wall. 105. See, generally, Broyles evidence in such a case as that stated
 
 510 ERROR IN JUDICIAL PROCEEDINGS. 
 
 other cases, as, for instance, where the jurymen bind themselves 
 in advance to abide by a verdict directed by a majority vote. 1 
 Upon the theory that a wrong ruling on its face is so material 
 and so influential as to prejudice the party against whom it is 
 directed, what, at first blush, seems to be a conflict among the 
 authorities may be easily and readily dissipated. Where the 
 ruling discloses its own materiality and influence nnd, flrinia 
 j'acic, appears to be prejudicial, it is assumed that it was so 
 in the absence of countervailing facts, clearly showing that it 
 was uninfluential. It does not, as a general rule, require anv 
 express recital or statement to show r the character of a wrong 
 ruling, for in most cases its vicious character appears upon its 
 face. But there are cases, and not a few, where the record was 
 held not to contain enough to affirmatively show error. One case 
 is where the evidence is not in the record and the instructions 
 are assailed, for in such a case the court, as will be elsewhere 
 shown, will presume that the instructions were correct as ap- 
 plied to the evidence. Another case is where all the instruc- 
 tions are not in the record. There are, of course, other cases, 
 but those to which we have referred are sufficient for our pres- 
 ent purpose. 
 
 § 595. No Error where complaining Party secures his Rights by 
 Amendment — It requires no discussion to prove that if a party 
 
 in the text is presumptively erroneous, conclusion upon the point under dis- 
 Peterson v. Hutchinson, 30 Ind. 3S; cussion — and we consider no other — is 
 Morgan v. State, 31 Ind. 193; Belle- probably correct, but some of the broad 
 fontaine, etc., Co. v. Hunter, 33 Ind. statements in the opinion are hardly 
 335; Thompson v. Wilson, 34 Ind. 94; correct. It is not, as the cases well 
 King v. Enterprise Ins. Co., 45 Ind. .43. agree, necessary that the record should 
 See, also, Colglazier v. Colglazier, 124 always show that a wrong ruling did 
 Ind. 196. It would, of course, be other- not do harm; on the contrary, the gen- 
 uine if the record showed that the in- eral rule is that the record must show 
 competent evidence did no harm, or that the erroneous ruling was prejudi- 
 justified an inference that no harm re- cial or was probably prejudicial. See 
 suited. Weik v. Pugh, 92 Ind. 3S2; cases cited, ante, § 591. It may be true 
 Taylor v. Williams, 120 Ind. 414; Morn- that there are exceptional cases, as in- 
 ingstar v. Musser (Ind.), 28 N. E. Rep. dicated in the text, from which the 
 1 1 19. See " Verdict right on the evi- erroneous effect of the ruling will be 
 dence, erroneous instructions harm- presumed. The conclusion reached in 
 less," post, § 643. Medsker v. Pogue, 1 Ind. App. 197, is 
 1 Ilowk v. Allen, 126 Ind. 56S. The correct.
 
 THE NATURE OF JUDICIAL ERROR. 
 
 511 
 
 amends his pleadings in the trial court he can not successfully 
 allege error on the rulings made upon the pleadings supplanted 
 by the amendment. 1 If a party desires to appeal from ruliDgs 
 declaring his pleadings bad he must stand upon his original 
 pleading. If he amends his pleading it goes out of the record. 2 
 
 § 596. Pleadings npon which Error is Alleged must be in the 
 Record — The bare suggestion that pleadings upon which error 
 is alleged must be in the record is sufficient, since the proposi- 
 tion is self-proving. If pleadings essential to a full understand- 
 ing of the questions sought to be presented by the assignment 
 of errors are absent from the record, the appeal will be unavail- 
 ing. 3 If pleadings are lost they must be substituted below, and 
 to accomplish that object the proper proceedings must be there 
 prosecuted. After substitution pursuant to the order of the 
 trial court, they may be brought into the record on appeal by 
 certiorari} 
 
 1 Earp v. Board of Commissioners of 
 Putnam County, 36 Ind. 470; Scotten 
 v. Longfellow, 40 Ind. 23; Wingate v. 
 Wilson, S3 Ind. 7S; Short v. Stotts, 5S 
 Ind. 29. But where one paragraph of 
 an answer only is amended the amend- 
 ment docs not necessarily waive excep- 
 tion to a ruling sustaining a demurrer 
 to another and different paragraph. 
 Washburn v. Roberts, 72 Ind. 213. 
 
 3 Berghoff v. McDonald, 87 Ind. 549; 
 State v. Hay, SS Ind. 274; Kennedy V. 
 Anderson, 9S Ind. 151; Conley v. Dib- 
 ber, 91 Ind. 413; Eshelman v. Snyder, 
 82 Ind. 49S; Miles v. Buchanan, 36 
 Ind. 490. 
 
 3 Chisham v. Way, 73 Ind. 362; Sum- 
 ner v. Goings, 74 Ind. 293; Seager v. 
 Aughe, 97 Ind. 285; Shackman v. 
 Little, 87 Ind. 1S1; Louisville, etc., Co. 
 v. Henly, SS Ind. 535; Harrison School 
 Tp. v. McGregor, 96 Ind. 1S5; Clark v. 
 Shaw, 101 Ind. 563; McGinnis v. Gabe, 
 7S Ind. 457; Keesling v. Ryan. 84 Ind. 
 89; State v. Fitch, 113 Ind.47S; Kissell 
 v. Anderson, 73 Ind. 4S5. Pleadings 
 struck out on motion must be brought 
 back into record by bill of exceptions. 
 See Bill of Exceptions. 
 
 4 Montgomery v. Gorrell, 49 Ind. 230; 
 Burkam v. McElfresh, SS Ind. 223; 
 Mitchell v . Stinson, So Ind. 324.
 
 CHAPTER II. 
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 § 597- 
 598. 
 599- 
 
 600. 
 
 601. 
 602. 
 
 603. 
 604. 
 605. 
 
 606. 
 607. 
 
 608. 
 
 Judicial discretion — Definition. § 609. 
 Discretionary power. 
 
 Scope of the discretionary 610. 
 
 power. 611. 
 
 A question of pure discretion is 612. 
 
 not a question of law. 613. 
 
 Absolute and limited discretion. 614. 
 Review of rulings professedly 
 
 made in the exercise of discre- 615. 
 
 tionarv power. 616. 
 
 Abuse of discretion. 617. 
 Showing an abuse of discretion. 
 
 Refusal to exercise a discretion- 61S. 
 
 arv power. 619. 
 Time to plead. 620. 
 Allowing amendments to plead- 
 ings. 621. 
 Abuse of discretion in denying 
 
 amendments. 622. 
 
 Denying negligent parties leave 
 to amend. 
 
 Amendments after verdict. 
 
 Failure of proof. 
 
 Calling a jury. 
 
 Impaneling the jury. 
 
 Decisions upon the qualifica- 
 tions of jurors. 
 
 Mode of trial. 
 
 Conduct of the trial. 
 
 Control of the delivery of evi- 
 dence. 
 
 Examination of witnesses. 
 
 Ordering a view. 
 
 Compulsory examination of the 
 person. 
 
 Discharge of the jury before 
 verdict. 
 
 Time for filing bills of exceptions. 
 
 § 597. Judicial Discretion — Definition — In every superior court 
 of general jurisdiction there resides authority which is not 
 strictly defined or limited by fixed rules of law, but which must 
 be exercised in order to justly vindicate substantive rights, 
 properly frame issues, and duly conduct trials. This authority 
 may be said, in a general way, to be the power of the judge to 
 rule and decide as his best judgment and sound discretion dic- 
 tate. 1 The term "judicial discretion" is usually employed 
 
 1 The definition given in Rex v. 
 Young, 1 Burr. 556,560, by Chief Justice 
 Mansfield, has been often quoted, and is 
 probably as satisfactory as any general 
 definition can be. This great judge said: 
 " But though discretion does mean (and 
 can mean nothing else but) the exercis- 
 ing of the best of their judgment upon 
 
 the occasion that calls for it, yet if this 
 discretion be willfully abused, it is crim- 
 inal, and ought to be under the control 
 of this court." Rex v. Peters, 1 Burr. 
 568, 570; Rex v. Wilkes, 4 Burr. 2527, 
 2539; Dooley v. Barker, 2 Mo. App. 
 Ct. 325,328; Dorman v. State, 34 Ala. 
 216, 235; Rooke's Case, 3 Coke's Rep. 
 
 (512)
 
 EXERCISE OF DISCRETIONARY POWER. 513 
 
 as designating the power mentioned. The judicial discretion 
 is not an arbitrary right to do whatever an individual judge's 
 whim, caprice or passion may suggest, for what is not reason- 
 able or not in accordance with common justice no judge has a 
 right to do. 1 When a ruling or decision clearly and certainly 
 passes the limits of reason, justice and right, it is not the prod- 
 uct of judicial discretion and can not be regarded as the exer- 
 cise of sound judgment, but must be attributed to passion, whim, 
 caprice, or willful wrong. Judicial discretion is not without 
 limits or conditions, although these limits or conditions are not 
 defined or established by fixed rules or principles of law. As 
 will be subsequently shown, where the law declares and fixes 
 definite and certain principles and rules there is, in strictness, 
 no right as of discretion, since such rules or principles consti- 
 tute the measure of the authority of the tribunal. It is the ob- 
 ject of the law to make courts instruments of justice, and what 
 thwarts this great object can not be regarded as judicial discre- 
 tion. The law does not vest arbitrary power in any judge to 
 be exercised at his pleasure regardless of the rights of parties, 
 although it does vest him with some authority which he is to 
 exercise according to his best judgment. 2 
 
 § 598. Discretionary Power— The exercise of purely discretion- 
 ary power even by ministerial officers is not subject to review, 
 and there is much stronger reason for the rule where such a 
 power is exercised by a judicial tribunal than there is where it 
 is exercised by ministerial or administrative officers. 3 Courts are 
 
 iooa. Coke, as is well known, censured 30 Cal. 318, 321; Lvbecker v. Murray, 
 
 the practice of leaving too much to the 58 Cal. 186, 189; Pinkham v. McFar- 
 
 discretion of a judge, and his great en- land, 5 Cal. 137; Thompson v. Thorn- 
 
 emy, Bacon, expressed a similar opin- ton, 41 Cal. 626; Ex parte Farmers 
 
 ion. The former's well known saying, Loan, etc., Co., 129 U. S. 206. 
 
 "in judicature discretion is a crooked 3 Board v. Fullen, 111 Ind. 410, 412; 
 
 cord," has been often quoted. Welch v. Bowen, 103 Ind. 252; State v. 
 
 1 Faber v. Bruner, 13 Mo. 541, 543; City of Newark, 4S N. J. Law, 101; 
 State v. dimming, 36 Mo. 263, 279; Gozler v. Georgetown. 6 W neat. 593; 
 Mabry v. Ross, 1 Heisk. Tenn. 769, 774. Weaver v. Templin, 113 Ind. 298;. City 
 
 2 Tripp v. Cook, 26 Wend. 143, 152; of Richmond v. Davis, 103 Ind. 449. 
 Rex r. Wilkes, 4 Burr. 2527, 2539; Baily The presumption, even as to ministerial 
 *. Taafe, 29 Cal. 424; Stringer z>. Davis, officers, is that they rightfully dis- 
 
 33
 
 514 ERROR IX JUDICIAL PROCEEDINGS. 
 
 presumed to proceed with deliberation and upon due informa- 
 tion. They are organized to adjudicate upon the highest rights 
 of person and property, and the judges are presumptively se- 
 lected because of their moral fitness, their learning " and their 
 devotion to justice." It is no marvel, then, that there is complete 
 agreement upon the proposition that the exercise of purely dis- 
 cretionary power can not be reviewed. 1 The rule that the 
 higher courts review and revise only where there is an abuse 
 of discretion and never where there is no abuse is declared and 
 enforced in almost numberless cases. 
 
 § 599. Scope of the Discretionary Power — Many matters rest in 
 the discretion of the trial court and the scope of the discretion- 
 ary power is very extensive. The difficulty lies in determining 
 in particular cases whether the ruling was made in the exercise 
 of a discretionary power or in the exercise of an imperative 
 duty, and whether there was or was not an abuse of discretion. 
 It is not safe to attempt to lay down any definite general rule for 
 determining these questions, and hence we must look to the de- 
 cisions upon specific branches of the general subject and from 
 them ascertain what the rule is as applied to particular classes 
 of cases. Little more can be safely said than that the discre- 
 tionary power covers a large field, and that it is most often exer- 
 cised in permitting or refusing amendments to pleadings and in 
 governing the introduction of evidence, but is by no means con- 
 fined to such matters. This much, however, may be safely 
 affirmed : An imperative duty rests upon all courts to obey and 
 
 charged their duties. Wright v. For- St. 2S6; Morris v. Graves, 2 Ind. 354; 
 
 restall, 65 Wis. 341 ; In re Brady, 85 N. Detro -'.State, 4 Ind. 200; Heberd v. 
 
 Y. 26S; State v. Township of Union, 37 Myers, 5 Ind. 94; Carlisle v. Wilkinson, 
 
 N. J. Law, 26S; hi re Ingraham, 64 X. 12 Ind. 91; Dearmond v. Dearmond. 12 
 
 Y. 310; Jackson School Tp. t/.Barlow, Ind. 455; Cooper v. Johnson, 26 Ind. 
 
 75 Ind. 11S. Infinitely stronger is the 247; Blake v. Stewart, 29 Ind. 31S; In- 
 
 reason for making the like presumption dianapolis, etc., Co. v. Rutherford. 29 
 
 concerning the action of courts. Ind. 82; Tyin v. Halstead,74 N.Y. C>oy, 
 
 1 Kemper v. Trustees, 17 Ohio, 293; Tucker v. Leland, 75 N. Y. 186; Cole 
 
 Avery v. Ruffin. 4 Ohio, 420; Holt v. v. Gourlay. 79 X. Y. 527, 535; State v. 
 
 State, 11 Ohio St. 114; Gandolfo v. Meloney, 79 Iowa, 413, 44 X. W. Rep. 
 
 State, 11 Ohio St. 114; Dobbins v. 693; Jefferson County v. Hawkins, 23 
 
 State, 14 Ohio St. 493; Griffin v. Veil, Fla. 223; Bullock t'.Cook, 2S Mo. App. 
 
 56 Mo. 310; Legg v. Drake, 1 Ohio 222.
 
 EXERCISE OF DISCRETIONARY POWER. 515 
 
 enforce the law as it exists, for no court is above the law, nor 
 has any court the right, or the power, to violate or depart from 
 established rules or principles, whether such established rules 
 and principles be declared in statutes or embodied in what is 
 commonly called the unwritten law. If there be such an es- 
 tablished rule or principle, there is no discretion ; if there be no 
 such rule or principle, then, as a general rule, discretion exists. 
 It is evident, therefore, that whether a ruling is made in the 
 exercise of a discretionary power or not is, in most cases, to be 
 determined by ascertaining whether there is or is not an impera- 
 tive rule or principle to which the court is under a duty to ad- 
 here. All the field of judicial action beyond that fenced in by 
 imperative rules and principles is the field of discretion ; all that 
 is so fenced in is excluded from the scope, or sphere, of dis- 
 cretionary power. 
 
 § 600. A question of Pure Discretion is not a question of Law — 
 
 In a strict and just sense a question of discretion is not a law 
 question. 1 Whether a discretionary power has been abused 
 may, however, be a question of law. It follows from these 
 fundamental principles that where there is a discretionary power 
 and no abuse, there is nothing for the appellate tribunal to re- 
 view or revise, but where there is an abuse of discretion there 
 is a duty for that tribunal to perform, inasmuch as it must as- 
 certain and decide whether the abuse prejudiced the substan- 
 tial rights of the party who makes complaint. It is, of course, 
 essential, where the point is made, for the appellate tribunal to 
 ascertain that there was an abuse of discretion, since that 
 question lies at the threshold. If there is found to be nothing 
 more than an exercise of a purely discretionary power, there 
 investigation ends, for that conclusion excludes further inquiry. 
 
 § 601. Absolute and Limited Discretion — Some of the courts 
 make a distinction between absolute discretion and discretion 
 
 1 Lawrence v. Farley, 73 N. Y. 187; B. &C. 819; Ex parte Strong, 20 Pick. 
 
 Howell v. Mills, 53 N. Y. 322; Martin 4S4; Carpenter v. Bristol Co., 21 Pick. 
 
 v. Windsor Hotel Co., 70 N. Y. 101. 258. '"A matter which rested in the 
 
 See Matheson v. Grant, 2 How. (U.S.) sound discretion of the court can not 
 
 263,279; Marine Ins. Co. v. Hodgson, 6 be assigned for error." Powell's App. 
 
 Cranch. 206; Mellish v. Richardson, 7 Proceedings, 195.
 
 516 ERROR IN JUDICIAL PROCEEDINGS. 
 
 limited by fixed rules of law. 1 With deep respect and defer- 
 ence for the able court which asserts this distinction, we affirm 
 that it does not and can not exist. If authority is limited by 
 law it ceases to be discretionary. The fixed principles of law, 
 whether prescribing rules of pleading, practice, procedure or 
 evidence, or whether defining or establishing substantive rights 
 of person or property, destroy discretion, so that where such 
 fixed rules or principles exist there can be no such thing as 
 discretionary authority. 2 Fixed rules no court can disregard 
 without wrong, and fixed rules imply the non-existence of dis- 
 cretion. Every one has a right to a trial in a court of justice 
 according to the law of the land, and established or fixed rules 
 are part of that law. It is true, that a violation of a fixed rule, 
 or a deviation from settled principles does not always constitute 
 error. This is so, however, simply and solely because the 
 wrong ruling does no harm, but it is never so because it is dis- 
 cretionary with any court to obey or to disobey settled rules or 
 principles. 
 
 § 602. Review of Rulings Professedly made in the Exercise of Dis- 
 cretionary Power — If a purely discretionary power is exercised 
 in ruling upon a question the appellate tribunal will not, as we 
 have substantially said, review the ruling, 3 but a court may, in 
 assuming to exercise a discretionary power, transcend the lim- 
 its of that power or abuse it. The difficulty arises in cases 
 where the question is whether the power exercised was exercised 
 within or without the bounds of discretion, or in cases where the 
 question is whether the power was or was not abused. It is not 
 legally possible for the trial court to preclude a review by as- 
 suming to exercise a discretionary power, for if a power not 
 discretionary is wrongfully exercised to the manifest prejudice 
 
 1 People v. City of Syracuse, 78 N. nial or refusal as a matter of favor. 
 
 Y. 56, 61; Howell v. Mills, 53 N. Y. Matter of Eldridge, S2 N. Y. 161, 1C6. 
 
 322; Anonymous, 59 N. Y. 313. "An 2 Piggott v. Ramey, 1 Scam. 145. 
 
 absolute discretion," it is said, "is one 3 The appellate court must, of course, 
 
 which can not be governed by any fixed look far enough into the question to 
 
 rules." Tripp v. Cook, 26 Wend. 143; determine whether the power exercised 
 
 People v. Superior Court, 5 Wend. 114. was purely a discretionary one; if found 
 
 Discretionary matters purely arc said to be such, the court will not go further 
 
 to be such as the court acts on by a de- with the question.
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 517 
 
 of the party who complains, or if there is a clear and palpable 
 abuse of the power to the substantial injury of such a party, the 
 decision will be reviewed and revised. 1 
 
 § 603. Abuse of Discretion — It has been said in express terms, 
 or affirmed by clear implication in a great number of cases, 
 that where there is an abuse of discretion resulting in manifest 
 and harmful wrong the ruling of the trial court will be deemed 
 available error. 2 The adjudged cases leave no room to doubt 
 that the appellate tribunal will revise rulings involving an abuse 
 of discretion, but it is very difficult to determine what will be 
 regarded as an abuse of discretion, for decisions upon this pre- 
 cise point are scant. The cases in which the courts have re- 
 versed a judgment for an abuse of discretion have generally 
 been those where a new trial was asked or refused, and in such 
 cases the particular facts only are considered and no general 
 rule laid down, so that from them we can deduce no general 
 principle. 3 The best that can be done is to say that each case 
 
 1 The vigorous opinion in the case of 
 Third Great Western Turnpike Co. v. 
 Loomis, 32 N. Y. 127, demonstrates the 
 correctness of the general statements of 
 the text. See, also, Powell v. Jopling, 
 2 Jones, L. R. 400; Davis v. State, 15 
 Ohio, 72; Gandolfo v. State, 11 Ohio, 
 114; Dobbins v. State, 14 Ohio St. 493, 
 499; Holt v. State, 11 Ohio St. 691. In 
 Gordon v. Spencer, 2 Blackf. 286, the 
 court in speaking of a matter regarded 
 as one of discretion, said: " We are of 
 opinion that the defendant's affidavit 
 does not show conclusively that the 
 circuit court transcended the bounds of 
 a legal discretion." In McLimans v. 
 City of Lancaster, 57 Wis. 297, it was 
 said : " We can not say that the learned 
 judge transcended a reasonable discre- 
 tion." 
 
 2 In Morris v. Graves, 2 Ind. 354, it 
 was said: " It would certainly require 
 a plain case of abuse to justify a supe- 
 rior court in reversing the decision of 
 the court below on such points." The 
 
 court cited Sanders v. Johnson, 6 
 Blackf. 50. In many cases it has been 
 said that where a court is invested with 
 a discretion the appellate court will not 
 attempt to control its exercise, but will 
 interfere in case of abuse. Ricketts z\ 
 Spraker, 77 Ind. 371; Daggett v. Flan- 
 nagan,7S Ind. 253; Langsdale v. Woolen, 
 99 Ind. 575, 579; Citizens Bank v. Ad- 
 ams, 91 Ind. 2S0; Nalker v. State, 102 
 Ind. 502; Stephenson v. State, no Ind. 
 35S; App v. State, 90 Ind. 73; Wachstet- 
 terv. State, 99 Ind. 290, 292; Butler :•. 
 State, 97 Ind. 37S; Black v. Thomson, 
 107 Ind. 162; State v. Maher, 74 Iowa, 
 77, 37 N. W. Rep. 2; Welch v. Wetzell 
 Co., 29 W.Va. 63, 1 S. E. Rep. 337; State 
 v. Barrett, 40 Minn. 65, 70, 41 N. W. 
 Rep. 459. 
 
 3 In one of these cases it was said: 
 "Whilst we would not interfere with 
 the ruling of the district court in a case 
 admitting of some reasonable doubt as 
 to the proper exercise of that discretion, 
 still, in a case like this, where the plead-
 
 518 ERROR IN JUDICIAL PROCEEDINGS. 
 
 will be determined upon its merits, and if the appellate court is 
 satisfied that the lower court transcended its discretion or 
 sly perverted it to the manifest injury of the complaining 
 party it will revise the ruling. Such a ruling can not, indeed, 
 be justly said to be one made in the exercise of a purely dis- 
 cretionary power, since an abuse of the power is not, in con- 
 templation of law, an exercise of the power, and if discretion 
 is transcended another field is necessarily invaded. While it 
 is correct to say that the exercise of a purely discretionary 
 power is not reviewable on appeal, it is not correct to affirm 
 that no rulings made within the range of power not limited and 
 defined by established rules is beyond review. We have, there- 
 fore, been careful to restrict our statement so as to confine it to 
 rulings made in the exercise of purely discretionary power, 
 our meaning being that there is an exercise of a purely discre- 
 tionary power only where there is neither abuse nor a passing 
 out of the bounds of judicial discretion. 1 
 
 § 604. Showing an Abuse of Discretion — The rule, as stated by 
 the courts, imposes upon a complaining party the burden of 
 showing very clearly and very strongly that the trial court 
 abused its discretion. Some of the courts use language as ex- 
 plicit and strong as our vocabulary supplies. 2 It is by no 
 
 ings and evidence are fully brought be- Rep. 550; Dean v. Georgia, etc., Co., 79 
 fore us, establishing, as we think, beyond Ga. 211, 9 S. E. Rep. 424; Kennicutt v. 
 doubt, that the ruling of the court is er- Parmalee, 109 N. Y. 650, 16 N. E. Rep. 
 roneous, we feel it to be our duty to re- 549; Sanders v. Wakefield, 41 Kan. 11, 
 verse the proceeding." See, generally, 29 Pac. Rep. 51S; Ilalpin v. Nelson, 76 
 Byne v. Smith, 76 Ga. mi ; McBride v. Iowa, 427, 41 N. W. Rep. 62. 
 Northern, etc., Co., 19 Ore. 64, 23 Pac. 1 The cases cited upon particular top- 
 Rep. S14; Grigsby v. Schu arz (Cal.), 22 ics will show, more clearly than general 
 Pac. Rep. 1041 ; Albion, etc.,Co. v. Rich- statements can do, the limits of judicial 
 mond, etc., Co.. 19 Nev. 225. Where a discretion and what constitutes an abuse 
 new trial is granted the almost universal of power. We refer to the cases cited 
 rule is that the appellate tribunal will in the pages which follow, as illustra- 
 not review the discretionary power ex- tive of the general subject as well as de- 
 en ised in granting it. Western Union clarative of the law upon the particular 
 Tel. Co. v. Kilpatrick, 97 End. 42; Fitz- points to which they are cited. 
 Patrick v. Papa, 89 Ind. 17; Waddle v. 2 In Detro v. State, 4 Ind. 200, 202, 
 ee, 81 Ind. 247; Reed v. Chicago, Roache, J., speaking for the court, said, 
 etc., Co., 71 Wis. 399, 37 N.W. Rep. 225; in speaking of the trial courts, that: 
 Barney v. Dudley, 40 Kan. 2.17. i<> Pac. " In so far as they are vested with dis-
 
 EXERCISE OF DISCRETIONARY POWER. 519 
 
 means an easv task to make it satisfactorily appear that the 
 trial court abused the discretion conferred upon it, since the 
 presumption that the trial court did no wrong seems to be ap- 
 plied in such cases with peculiar stringency and force. 1 
 
 § 605. Refusal to Exercise a Discretionary Power — If a court is 
 under a duty to exercise a power, it is error for it to refuse to 
 do so, although the power may be discretionary.- The refusal 
 to exercise such a power, where the duty exists, if productive 
 of substantial injury will warrant a reversal of the judgment. 
 But although the refusal may be wrong it will not constitute 
 available error unless it works substantial injury to the com- 
 plaining party. The appellate tribunal may, it seems not in- 
 appropriate to suggest, compel the lower court to make some 
 ruling, but it can not direct what the ruling shall be, 3 and from 
 this settled principle, even in the absence of cases directly in 
 point, may be deduced the conclusion that the refusal to rule is 
 a legal wrong. 
 
 cretionary powers, they will be pre- 
 sumed to be properly exercised until the 
 contrary is shown. All these decisions 
 are, it is true, subject to revision, but in 
 all such cases the ruling of the circuit 
 court will be presumed to have been in 
 accordance with the justice and merits 
 of the case, unless the complaining 
 party shows unequivocally that the 
 court has been guilty of an abuse of 
 its discretionary powers, and that his 
 rights have been injuriously affected 
 by such abuse." So, in the case of Ray 
 V. Northrup, 55 Wis. 396, it was said: 
 "A motion of this kind is usually very 
 much in the discretion of the court to 
 which it is addressed, and this court 
 will not reverse an order of the kind 
 unless the case presents strong grounds 
 for holding that the discretion of the 
 court to which the motion was ad- 
 dressed was not justly and fairly exer- 
 cised." Some of the cases say: "The 
 abuse must be gross and plainly mani- 
 
 fest." Seymour 7'. Board of Supervisors, 
 40 Wis. 62; Smith v. Smith, 51 Wis. 
 665, 668: McLaren v. Kehlor. 22 Wis. 
 297, 300; Churchill v. Welsh, 47 Wis. 
 39. 54; Tierney v. Union Lumber Co., 
 47 Wis. 24S. 
 
 1 In Gordon v. Spencer, 2 Blackf. 2S6, 
 the court very clearly implies that no 
 other than a conclusive showing is suf- 
 ficient. 
 
 2 Tyler v. Ilealcy, 51 Cal. 191 ; Dickey 
 v. Davis, 39 Cal. 565, 569; Tilton v. 
 Beecher, 59 N. Y. 176; Crump v. Mor- 
 gan, 3 Ired. Eq. 91, S. C. 40 Am. Dec. 
 447; Smith v. Dragert, 61 Wis. 222. 
 
 3 Life and Fire Insurance Co. v. Ad- 
 ams, 9 Pet. 573; State v. Laughlin, 75 
 Mo. 35S; Ex parte Henderson, 6 Fla. 
 279; Ex parte Dickson, 64 Ala. iSS; 
 Floral Springs Water Co. -. Rives. 14 
 Nev. 431 ; State :•. Cape Girardeau, etc., 
 73 Mo. 560; State v. Rising, 15 Nev. 164; 
 Ex parte Cage, 45 Cal. 24S.
 
 520 ERROR IN JUDICIAL PROCEEDINGS. 
 
 i 
 
 § 606. Time to Plead — A court having a general power to con- 
 trol the formation of issues may, in the absence of explicit stat- 
 utory provisions, designate the time within which pleadings 
 shall be filed, and, as such matters are within the discretion of 
 the tribunal, error can not be effectively assigned unless there 
 is a palpable abuse of discretion. It is, of course, conceivable 
 that the discretion may be exceeded or abused, and when this 
 is so, error may be well assigned. But where a party seeks to 
 make the action of the court in such cases available as error he 
 must show, by affidavit, or otherwise, that the time designated 
 was unreasonable and that the action of the court deprived him 
 of some substantial right. He must, it is proper to suggest, 
 remove the presumption which exists in favor of the rightful 
 exercise of the discretionary power vested in the court. 1 
 
 § 607. Allowing Amendments to Pleadings — The discretion of 
 the trial court in the matter of allowing or refusing amendments 
 to pleadings is very broad and comprehensive. It was so at 
 common law. 2 It is certainly so under the liberal rules declared 
 by the code. 3 A ruling allowing or refusing an amendment 
 
 1 " It is a familiar rule," said the court, Chittenden, 120 Ind. 37; Daggett v. 
 in Black v. Thomson, 107 Ind. 162, 164, Flanagan, 7S Ind. 253; Dewey v. State, 
 " that where a judicial tribunal has gen- 91 Ind. 173; Citizens State Bank v. 
 eral power to designate a time within Adams, 91 Ind. 2S0; Burns v. Barenfield, 
 which an act may be done, it may ex- S4 Ind. 43; Grand Rapids, etc., Co. v . 
 tend the time in the exercise of a rea- Ellison, 117 Ind. 234; Town of Martins- 
 sonable discretion." See, generally, ville v. Shirley, S4 Ind. 546; Child v. 
 Parker v. State, Si Ga. 332,6 S. E. Rep. Swain, 69 Ind. 230; Durham v. Fech- 
 600; Bridgman v. Dambly, 41 Minn, heimer, 67 Ind. 35 ; Duncan v. Cravens, 
 526. 43 N. W. Rep. 482; Regenstein v. 55 Ind. 525; Gaff i r . Hutchinson, 3S Ind. 
 Pearlstcin, 30 So. Car. 192, S S. E. Rep. 341; Burr v. Mendenhall, 49 Ind. 496; 
 S50; Myers v. State, 115 Ind. 554; Van Koons v. Price, 40 Ind. 164. See, gen- 
 Allen v. Spadonc, 16 Ind. 319; Jelley v. erallv, Meyer v. State, 125 Ind. 335; 
 Gaff, 56 Ind. 331. But statutory provis- Hartford City, etc., Co. v. Love. 125 
 ions of a mandatory nature can not be Ind. 275; Nysewander v. Lowman, 124 
 disregarded. Kimball v. Whitney, 15 Ind. 584; Johnson v. Conklin, 119 Ind. 
 Ind. 280; Runnion v. Crane, 4 Blackf. 109; Langsdale v. Woollen, 99 Ind. 575; 
 466. Bever v. North, 107 Ind. 544; Burk V. 
 
 3 Mellish v. Richardson, 7 B. & C. Andis, 9S Ind. 59, 62; Pittsburgh, etc.. 
 
 S19; Marine Ins. Co. V. Hodgson, 6 Co. v. Martin, S2 Ind. 476; Burns v. 
 
 Cranch. 206. Barenfield, 84 Ind. 43; Hubler v. Pul- 
 
 3 Jenne v. Burt, 121 Ind. 275; Levy v. len, 9 Ind. 273.
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 521 
 
 can seldom be made available as error if made at any time be- 
 fore the finding or verdict, and there are, indeed, some amend- 
 ments that on appeal will be regarded as having been made, 
 although not actually made by the party. 1 There seems to be 
 some confusion in the cases as to whether an amendment chang- 
 ing the issues can be permitted after the trial has begun. Af- 
 firming that there can be such an amendment are many cases, 2 
 and denying it are others. 3 We think the conclusion required 
 bv the later and better considered cases is that permitting a 
 radical amendment, even so radical as to change the issue, is 
 not necessarily and invariably available error, although it may 
 sometimes be so, but that if the complaining party duly shows 
 that the amendment is such as to entitle him to further time to 
 plead or to prepare for trial, and he duly makes application for 
 time, it will be error to overrule his application. 4 It is implied, 
 
 1 Reeder v. Say re, 70 N. Y. 180, 1S9; 
 Lounsbury v. Purely, iS N. Y. 515; 
 Watt v. Pittman, 125 Ind. 168; Ke-tuc- 
 e-mun-guah v. McClure, 122 Ind. 541; 
 Chaney v. State, uSInd. 494; Buchan- 
 an v. State, 106 Ind. 251. But amend- 
 ments which are of controlling impor- 
 tance and which go to the substance 
 can not be made on appeal. Tooker v. 
 Arnoux, 76 N. Y. 397; Scofield v. 
 Whitelegge, 49 N. Y. 259. An amend- 
 ment on appeal will be allowed in order 
 to sustain a judgment, but not to over- 
 throw it. Volkening v. DeGraaf, Si N. 
 Y. 26S; Gasper v. Adams, 24 Barb. 2S7; 
 Englis v. Furniss, 3 Abb. Pr. S2; 
 Williams v. Birch, 6 Bosw. 674; Mc- 
 Ginniss v. Mayor, etc., 6 Daly, 416; 
 Brown v . Colie, 1 E. D. Smith. 265. 
 
 1 Burr v. Mendenhall, 49 Ind. 496; 
 Ostrander v. Clark, S Ind. 211; Burns 
 v. Fox, 113 Ind. 205; Durham v, Fech- 
 heimer, 67 Ind. 35; Child v. Swain, 69 
 Ind. 230; Hay v. State, 5S Ind. 337; 
 Leib v. Butterick, 6S Ind. 199; Darrell 
 v Hilligoss, etc., Co.. 90 Ind. 264. 267; 
 Town 01 Martinsville v. Shirley, 84 Ind. 
 ^46; Levy v. Chittenden. 120 Ind. 37; 
 Chicago, etc., Coal Co. v. Hunter, 12S 
 
 Ind. 213; Chicago, etc., Co. v. Jones, 
 103 Ind. 3S6; Voltz v. Newbert, 17 Ind. 
 1S7; Musselman v. Musselman, 44 Ind. 
 106; Myers v. Moore (Ind. App. Ct.), 
 2S N. E. Rep. 724. See, also, Ahrens 
 v. State Bank, 3 So. Car. 401; Hill v. 
 Chipman, 59 Wis. 211; Brauns v. Sterns, 
 1 Ore. 367. 
 
 3 Kerstetter v. Raymond, 10 Ind. 199; 
 Danville, etc., Co. v. State, 16 Ind. 456. 
 
 4 A party who delays until the trial has 
 begun is not entitled to leave to amend 
 as a matter of course, but he must make 
 a clear showing of right; if he does not 
 it can not be justly held on appeal that 
 there was an abuse of discretion. It 
 has been said, again and again, that the 
 trial court should require cause to be 
 clearly shown and that it should be 
 slow to grant leave to make material 
 amendments after the trial has been 
 entered upon, although in allowing for- 
 mal amendments it should be liberal. 
 .\> to the one ela-s of amendments the 
 rule is liberal, as to the other, strict. 
 Amendments may be made, as is well 
 known, as of course, before the adverse 
 party has answered or replied; in all 
 other eases leave must he obtained. The
 
 522 ERROR IN JUDICIAL PROCEEDINGS. 
 
 of course, that the complaining party must affirmatively show 
 that he demanded time and that his demand was well 
 founded ; or that he has shown that he was wrongfully misled. 
 It seems clear that where there is such a demand well made 
 and supported a denial is an ahuse of discretion. 
 
 § 608. Abuse of Discretion in denying Amendments — There may 
 be cases, although rare ones, where the denial of leave to 
 amend asked after the issues are closed will be adjudged such 
 an abuse of discretion as entitles the party injured to a reversal. 1 
 It is obvious that in such a case there must be an appropriate 
 and reasonable application for leave to amend, supported by a 
 full, strong and clear showing in order to constitute the denial 
 available error, for the case is one appealing primarily to the 
 discretion of the court, and is, also, one forming a rare excep- 
 tion to a general rule unusually free from exceptions. The 
 arbitrary refusal to allow amendments upon sufficient cause 
 shown is available as error where a substantial right is denied 
 for the reason, already suggested, that in so ruling the court 
 abuses the discretion conferred upon it by law. Probably as 
 good a general test as can be suggested for determining whether 
 an amendment should be allowed is that found in the answer to 
 the question, is the amendment in furtherance of justice? 2 If 
 
 express provision that leave must be to be granted or refused accordingly." 
 obtained carries the necessary implica- The case from which we have quoted 
 tion that the court must often deter- approves Burr v. Mendenhall, 49 Ind. 
 mine whether or not leave should be 496, as does the case of Shropshire :■. 
 granted, ami it results from this that Kennedy, 84 Ind. in. In the case last 
 much is confided to its discretion. named the affidavit assuming to show 
 1 Chicago, etc.. Co. v. [ones, 103 Ind. cause was declared insufficient, and it 
 386. In the ease eited it was said: was also decided, that there could be no 
 '• Whether a party shall he allowed to available error if the pleading, as 
 amend his pleadings after the issues are amended, would still be bad. See. also. 
 closed is a matter resting very much in Brauns v. Stern, 1 Oregon, 367; Smith 
 the discretion of the nisi frius court. V. Gould, 61 Wis. 31; Ilexter V. 
 The fact that, in such a case, leave of Schneider, 14 Oregon, 1S4. 
 court is necessary, implies the right of 2 In House v. Duncan, 50 Mo. 453. it 
 the court to refuse permission to amend was said: "Amendments are favored 
 in any ca>e excepl upon good cause and should be literally made in further- 
 shown, and, even when such a showing ance of justice." In many other cases 
 is made, the matter is still within the a similar doctrine has been declared 
 legal discretion of the court, the leave and enforced. Smith v. Yreka Water
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 
 it affirmatively and clearly appears to be so, it is error to deny 
 it to the prejudice of a party who appropriately and oppor- 
 tunely asks leave to amend. 1 
 
 § f)09. Denyiug Negligent Parties Leave to Amend — Where no 
 sutlicient cause authorizing an amendment is shown there is no 
 abuse of discretion in denying leave to amend, and hence no 
 available error. 2 It goes with the saying that if a party has 
 been inexcusably dilatory or negligent he can not successfullv 
 complain if the court exercises its discretion against him bv 
 denying him leave to amend his pleadings. 3 It is to be borne 
 in mind that where leave is refused the presumption favorable 
 to the trial court puts upon the complaining party the burden of 
 affirmatively showing an abuse of discretion, or that the bounds 
 of discretion were transcended, and, also, of further showing 
 that the wrong of the trial court did him substantial injury. 
 
 Co., 14 Cal. 201; Lestrade v. Barth, 17 
 Cal. 285, 2SS; Kirstein v. Madden, 3S 
 Cal. 158, 162; Valencia v. Couch, 32 
 Cal. 339, 346; Ilavden v. Harden, 46 
 Cal. 332; Connellev v. Peck, 3 Cal. 75, 
 82; Pierson v. McCahill, 22 Cal. 127, 
 130; Harkins v. Edwards, 1 Iowa, 296; 
 Dixon v. Dixon, 19 Iowa, 512; Tegeler 
 v. Shipman, 33 Iowa, 194; Miller v. 
 Perry, 3S Iowa, 301; Carr :•. Moss, S7 
 Mo. 447. It is said by the Iowa court, 
 in substance, that the rule is to allow 
 amendments, the exception to refuse. 
 Pride V. Wormwood, 27 Iowa, 2;; 7; 
 Ilinkle v. Davenport, 3S Iowa, 355. 
 See, generally, Brickman v. South Car- 
 olina R. Co., S So. Car. 173; Schreck- 
 engast :•. Ealy, 16 Neb. 510; Connell v. 
 Putnam, 5S N. H. 335: Jefferson Co, :•. 
 Ferguson, 13 111. 33; Tatem v. Potts, 5, 
 Blackf. 534. 
 
 1 But it is to be borne in mind that 
 one who asks leave to amend at a later 
 stage of the proceedings is prima facte 
 culpably lacking in diligence ami is not 
 always entitled to make such a request 
 
 as of right. And it is also to be re- 
 membered that the presumption is 
 against a party denied such leave; that 
 presumption must, of course, be over- 
 come or the ruling will not be disturbed. 
 
 2 Holladay z\ Elliott, 3 Oregon, 340. 
 
 3 Sayers v. First National Bank, S9 
 Ind. 230. In Weed. etc.. Co. v. Phil- 
 brick, 70 Mo. 646, 64S, it was held that 
 it was the duty of the court " to so con- 
 strue the law in relation to pleadings 
 and amendments to the same as 10 dis- 
 courage negligence and deceit. to prevent 
 delay and secure the parties from being 
 misled." In that case it was held an 
 abuse of discretion to permit an an- 
 swer denying the execution of a written 
 instrument to be filed after the trial had 
 been entered upon. While the general 
 rule is that stated in the text, it i- prob- 
 able that there may be cases where the 
 demands of justice are so clear and 
 strong that the element of delay would 
 occupy a subsidiary place and yield to 
 the stronger elements.
 
 524 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § GIG. Amendments After Verdict — We have already said that 
 there are some amendments that may be regarded as having 
 been made, even after the case has entered the appellate court, 
 but amendments that can there be made, or there regarded as 
 made, are not such as are of a material and controlling charac- 
 ter. It is, indeed, the general rule that, after a verdict, or find- 
 ing, amendments which radically change the issue are not 
 allowable. 1 This is obviously the true rule, since cases must be 
 tried upon the issue tendered, the evidence must be confined to 
 the issue, and the verdict or finding must keep within the issue 
 made by the pleadings. But, while the rule is that amend- 
 ments after verdict are not allowable where they entirely 
 change the issue, it is also true that amendments may be made 
 to avoid a variance. 2 
 
 §611. Failure of Proof — The cases cited in the note to the 
 preceding paragraph, to which many more might easily be 
 added, leave no doubt that a mere variance maybe obviated by 
 amendment made after verdict. Indeed, in many cases im- 
 material variances are disregarded on appeal, even where there 
 is no amendment. But there is an essential difference between 
 
 1 Brown v. Smith, 24 111. 196, 19S; 2 Smith v. Flack, 95 Ind. 116; Ilullr. 
 
 Redman v. Taylor, 3 Ind. 144 ; Seivers Green, 20 Ind. 388; Hamilton v. Win- 
 
 V. McCall, 1 Ind. 393; Maxwell v. Day, terrowd, 43 Ind. 393; Perdue V. Ald- 
 
 45 Ind. 509; Aiken v. Bruen, 21 Ind. ridge, 19 Ind. 290; Woodward v. Wil- 
 
 137; Cincinnati, etc., Co. v. Bunnell, 61 cox, 27 Ind. 207; Torr v. Torr, 20 Ind. 
 
 Ind. 1S3. In Levy v. Chittenden, 120 11S; Warbritton v. Cameron, 10 Ind. 
 
 Ind. 37, 40, it is said: " But this court 302; Hickey v. State, 23 Ind. 21; Lister 
 
 has always held that it is error to allow v. McNeal, 12 Ind. 302; Cincinnati, 
 
 an amendment to the pleading which etc., Co. v. Bunnell, 61 Ind. 183; Schei- 
 
 changes the nature of the cause of ac- hie V. Law, 65 Ind. 332; Randies v. 
 
 tidn or defence, after the trial has heen Randies, f>3 Ind. 93; Boynton v. Sisson, 
 
 concluded." This is a correcr state- 56 Wis. 401; Forcy v. Leonard, 63 Wis. 
 
 ment of the law, but an erroneous im- 553. See Rettig v. Newman, 99 Ind. 
 
 pression is likely to arise from the cita- 424; Judd v. Small, 107 Ind. 398; Rec- 
 
 Lion with apparent approval of Miles ord V. Ketcham, 76 Ind. 4S2; Bovd v. 
 
 v. Vanhorn, 17 Ind. 245; Proctor v. Caldwell, 95 Ind. 392; Burns v. Fox, 
 
 ( )\v. 11s. iS Ind. 21 ; Hoot :■. Spade. jo Ind. 113 Ind. 205. An immaterial variance 
 
 326. The broad doctrine asserted by may be disregarded, although there is 
 
 those eases can not now be regarded as no amendment. Louisville, etc., Co. v . 
 
 sound, as appears from the cases cited Overman, 8S Ind. 115. 
 in Levy v. Chittenden
 
 EXERCISE OF DISCRETIONARY POWER 
 
 
 a mere variance and a failure of proof, and this difference leads 
 to important results. It is, however, sufficient for our purpose 
 to say that the general rule is that variances are obviated by 
 the statute, but a failure of proof is not, and that after verdict 
 an amendment can not be made to remedy an infirmity created 
 by a failure of proof. In illustration of this general rule may 
 be cited the cases wherein it is held that where a plaintiff de- 
 clares upon a legal title the proof fails although an equitable 
 title be shown. 1 There are many other cases which assert and 
 enforce the doctrine we have stated. - 
 
 § 612. Calling a Jury — In actions at law it is the imperative 
 duty ■ of the court to call a jury when the proper request is 
 made. 3 But in order to lay the foundation for available error, 
 the party asking a jury must cause the record to show a due 
 request, refusal and exception. 1 If there is no request, the 
 
 1 Nichol v. Thomas, 53 Ind. 42; Rowe 
 v. Beckett, 30 Ind. 154; Stehman v. 
 dull, 26 Ind. 436; Brown v. Freed, 43 
 Ind. 253; Groves v. Marks, 32 Ind. 319; 
 McMannus v. Smith, 53 Ind. 211; Hunt 
 v. Campbell, S3 Ind. 48; Stout v. Mc- 
 Pheeters, 84 Ind. 585; Johnson v. Pon- 
 tious, nSInd.270; Castor v. Jones, 107 
 hul. 2S3, 2S7; Deputy v. Mooney, 97 
 Ind. 463. 
 
 2 Cincinnati, etc., Co. v. Bunnell, 61 
 Ind. 1S3; Farrell v. State, 3 Ind. 573; 
 Ellis v. Ford, 5 Blackf. 554; Jefferson- 
 ville, etc., Co. v. Worland, 50 Ind. 339; 
 Buckey v. Stanley. 5 Blackf. 102: Hat- 
 ten v. Robinson, 4 Blackf. 479; Morgan 
 v. Incorporated, etc., Co., 64 Ind. 213. 
 The first of the cases cited decides that 
 a failure of proof can not be obviated by 
 amendment and in this is abstractly 
 correct, but in assuming that the same 
 rule applies before verdict as applies 
 after verdict the decision is wrong. It 
 seems to us that the case of Burr v. 
 Mendenhall, 49 Ind. 496, and the many 
 cases approving it, were overlooked, 
 and an erroneous conclusion reached. 
 
 3 Galway v. State. 93 Ind. 161. 
 
 * Sheets v. Bray, 125 Ind. 33, 36; 
 Griffin v. Pate, 63 Ind. 273.275; Hauser 
 v. Roth, 37 Ind. S9; Madison, etc., Co. 
 v. Whiteneck, S Ind. 217. 218; Preston 
 v. Sanford, 21 Ind. 156; Heacock v. Lu- 
 buke, 107 111. 396; Cushman v. Flana- 
 gan, 50 Texas, 3S9; Wanser v. Atkinson, 
 43N.J. L. 571; Hall v. Chicago, etc., 
 Co., 65 Iowa, 25S; A" it rified, etc.. Co. v. 
 Edwards, 135 Mass. 591; Bonham v. 
 Mills. 39 Ohio St. 534. The refusal to 
 call a jury must be assigned as a cause 
 for new trial or it will not be considered 
 on appeal. Ketcham v. Brazil, etc., I 
 SS Ind. 515; Mattingly v. Paul, SS Ind. 
 95. Waiver of jury trial may be made 
 by failure to appear at calling of case. 
 Indianapolis, etc., Co. v. Caven, 53 Ind. 
 258; Love v. Hall, 76 Ind. 326. "Call- 
 ing a ease for trial is an announcement 
 or declaration by the court that a cause 
 has been reached in its order and that 
 the judicial examination of the issues 
 of law or fact upon which the case de- 
 pends are about to begin." Requests 
 or motions which are required to be 
 made within a given time before the 
 case •"is called for trial" will be in due
 
 526 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 presumption is that the parties acquiesced in the action of the 
 court, or that they voluntarily suhmitted the case to the court 
 for trial, for, in the absence of countervailing facts, it must be 
 assumed that the court did not depart from the law nor usurp 
 the functions of the jury. In chancery cases the court exer- 
 cises an unfettered discretion ; it may call a jury or not at its 
 pleasure, and its action will not be reviewed on appeal. 1 In 
 such cases it is entirely discretionary with the court, whether it 
 will or will not accept and act upon the finding of the jury. 2 
 Where a case is for the jury, but the part}', instead of request- 
 ing a trial of the whole issue, requests that a single question of 
 fact be submitted to the jury, a jury trial is waived. 3 If the 
 court enters upon the trial, but subsequently sets aside the sub- 
 mission and calls a jury, it exercises a discretionary power, 
 and, unless there are some peculiar and unusual elements in 
 the case, no error can be successfully assigned upon such ac- 
 tion. 1 Where the parties and the court assume that the case 
 is a suit in equity and not an action at law, the theory involved 
 
 season, if made before the case is actu- 
 ally called, although an earlier time 
 may have been fixed for trial by agree- 
 ment of parties. Moore v. Sargent, 
 112 Ind. 4S4, 4S6. 
 
 1 Holmes v. Stateler, 57 111. 209. But 
 upon the principle that parties will be 
 held to trial court theories, if parties 
 and court assume that the case is one 
 for a jury and proceed on that theory 
 entirely, then the cause must be con- 
 ducted according to the rules govern- 
 ing jury trials. Summers v. Great- 
 house, S7 Ind. 205; Platter v. Board, 
 103 Ind. 360, 384; Dawson v. Shirk, 
 [02 Ind. 184, 1S8. See. generally, as to 
 effect of assuming a given theory in the 
 trial court. Daniels v. Brodie, 54 Ark. 
 216, 11 Law. Rep. Anno. 81, 83; San 
 Diego, etc., Co. v. Neale, 80 Cal. 83, 11 
 Lawyers Ren. Anno. 604. See, also, 
 " Holding Parties to Trial Court Theo- 
 ries,'' Chapter XXIV. 
 
 2 Rariden v. Rariden, 28 N. E. Rep. 
 Joi; Koons v. Blanton (Ind.), 27 N. E. 
 
 Rep. 334; Platter v. Board, 103 Ind. 360; 
 Bingham v. Stage, 123 Ind. 2S1. 
 
 3 Spencer -•. Robbins, 106 Ind. 580, 
 5S8. It was said in the case cited: "In 
 a case which is triable by a jury, gen- 
 erally, it is not error to refuse to sub- 
 mit a particular question of fact to the 
 jury. The request to submit a particu- 
 lar question to the jury, as whether a 
 deed was executed, was a waiver of the 
 right to a jury to try the case gener- 
 ally." 
 
 4 The reporter's note to Mattingly v. 
 Paul, SS Ind. 95, incorrectly represents 
 the court as deciding that such action is 
 irregular; the court simply granted for 
 arguments sake, — but did not decide, — 
 that such action was irregular. It cer- 
 tainly can not be held that such a pro- 
 ceeding is irregular in the absence of 
 an affirmative showing that there was 
 an abuse of discretion, since the pre- 
 sumption is that the trial court acted 
 upon sufficient cause and had just rea- 
 son to set aside the submission.
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 
 in the assumption will prevail on appeal and the appellate tri- 
 bunal will not inquire whether the right mode of trial was or 
 was not adopted. 1 
 
 § 613. Impaneling the Jury — In impaneling the jury and de- 
 termining what questions shall be asked the jurors upon th< ir 
 examination touching their competency and qualifications, the 
 trial court necessarily exercises a wide discretion. 2 It may be 
 said, as introductory to a consideration of particular rulii 
 that where there is a challenge for cause and the court sus- 
 tains such a challenge, the presumption is that the person chal- 
 
 1 In Shew V. Hows, 126 Ind. 474, 476, 
 it was said: " But the whole theory of 
 the case from the inception to the final 
 determination in the trial court charac- 
 terizes it as a suit in equity and not as 
 an action at law, and it must rest upon 
 that theory still." The court cited 
 Bingham v. Stage, 123 Ind. 2S1; Wag- 
 ner 0. Winter, 122 Ind. 57; Peters v. 
 Guthrie, 119 Ind. 44; Cottrell v. ^Etna 
 Life Ins. Co., 97 Ind. 311. 
 
 1 It is, perhaps, well enough to say 
 hei e that objections to the qualifications 
 of persons called as jurors, and objec- 
 tions to the manner of selecting or im- 
 paneling them, must be promptly made, 
 tor if not made until after the trial has 
 fully begun they will be deemed waived. 
 Dolan v. State, 122 Ind. 141, 144; Cole- 
 man v. State, in Ind. 563; Henningw. 
 State, 106 Ind.3S6; Smurr v. State, 105 
 Ind. 125. An acceptance of the jury 
 terminates the right to object, as a gen- 
 eral rule, unless it is clearly made to 
 appear that the objection was not 
 known to the complaining party and- 
 that he exercised reasonable diligence 
 to discover the alleged grounds of dis- 
 qualification. Achev v. State. 64 Ind. 
 56; Indianapolis, etc., Co. r.Pitzer, 109 
 Ind. 179; Kennegar v. State, 120 Ind. 
 176, 1S0; Beauchamp v. State. 6 Blackf. 
 299; Munly V. State. 7 Blackf. 593; 
 Morris v. State, 7 Blackf. 607, Wyatt 
 
 :'. Noble, 8 Blackf. 507; Croy v. Si 
 32 Ind. 384; Alexander v. Dunn, 5 Ind. 
 122; Estep v. Waterous, 45 Ind. 140; 
 Kingen v. State. 46 Ind. 132; Gillooley 
 V. State, 58 Ind. 1S2. A party must 
 make diligent use of the opportunity 
 the law affords him. King v. Sutton, 
 S B. & C. 417; State v. Quarrel, 2 Bay, 
 15°; Queen v. Hepburn, 7 Cranch. 
 290; Jeffries v. Randall, 14 Mass. 205; 
 State v. Funck, 17 Iowa, 365; Tur- 
 ner v. Hahn, 1 Col. 23; Taylor v. 
 Greely, 3 Me. 204. If a juror deceives 
 a diligent party it is cause for a new 
 trial. Rice v. State, 16 Ind. 29S. Croy 
 v. State; ^2 Ind. 384, 3S7. does not 
 overrule Rice V . State upon this point. 
 In Buck :•. Hughes, 127 Ind.46.49.it 
 was said: "As a general rule, parties 
 may rely, and have a right to rely, on 
 the statements of a juror, and are not 
 required to institute an investigation as 
 to the truth of the statements of a juror 
 before accepting him as such. But a 
 party has the right, if he knows at the 
 time, of facts making the juror incompe- 
 tent to present them to the court, and 
 have the question passed upon by the 
 court, before entering upon the trial." 
 It is evident from the decisions that a 
 party who has knowledge must dili- 
 gently and reasonably use it; not simply 
 that be has ;i right to do so, but is 
 under obligation so to do.
 
 528 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 lenged was disqualified, 1 but, of course, this presumption may 
 be rebutted in the proper case. 2 It ma)' be further said, some- 
 what by way of preface, that where fixed rules, declared by 
 statute or established by the unwritten law, declare what course 
 shall be pursued, an abuse of discretion exists if such rules are 
 departed from in an essential particular and to the substantial 
 injury of the complaining party. 3 The court may, as a general 
 rule, excuse a juror, although parties object, where the juror 
 asks it, and his excuse is demanded by illness, the public good, 
 or, in rare cases, where urgent private interests of the juror 
 demand that he be released. Where a juror is excused by the 
 court, no error can be well assigned unless it appears that there 
 was an abuse of discretion resulting in injury to the complaining 
 party. 4 An examination of jurors upon their voir dire is allow- 
 
 1 City of Goshen v. England, 119 Ind. 
 368,372; Carpenter v. Dame, 10 Ind. 
 125; Heaston v. Cincinnati, etc., Co., 
 16 Ind. 275, 279. 
 
 2 It may be rebutted by a clear and 
 full showing by the record that no cause 
 existed. So where a juror is accepted, 
 the presumption of knowledge and lack 
 of diligence may be rebutted. Brown 
 v. State, 60 Miss. 4^7; McClure v. 
 State, 1 Yerg. 206; Meyer v. State, 19 
 Ark. 156. Many of the courts hold 
 that unless it affirmatively appears that 
 an unjust verdict was rendered, the fact 
 that a disqualified person was on the 
 jury will not authorize a reversal. King 
 :. Hunt,4B.& A. 430; State v. Madoil, 
 12 Fla. 151; State v. Turner, 6 La. Ann. 
 309; McLcllan v. Crofton, 6 Me. 307; 
 I'resbury v. Commonwealth, 9 Dana, 
 203; Curan'sCase, 7 Gratt. 619; Green- 
 up v. Stoker, S 111. 202. But see Block 
 v. State, 100 Ind. 357. It is firmly set- 
 tled that applications for a new trial 
 upon the ground that a juror was dis- 
 qualified are received with great dis- 
 favor, and the evidence adduced in sup- 
 port of such applications is minutely 
 scrutinized and cautiously received. 
 Com. v. Flanagan. 7 Watts. & S. 415, 
 
 422; Moore V. Philadelphia Bank. 5 
 Sergt. & R. 41, 42; Miami, etc., Co. v. 
 Wesler, 47 Ind. 65; Clem v. State, 33 
 Ind. 41S; Harding v. Whitney, 40 Ind. 
 379; Holloway v. State, 53 Ind. 554; 
 State v. Bancroft, 22 Kan. 170; Epps v. 
 State, 19 Ga. 102; Spies v. People, 122 
 111. 1,12 N. E. Rep. S65, 867; Hughes 
 v. People, 116 111. 330, 337. Where a 
 challenge is overruled the general rule 
 is that the record must show the specific 
 grounds stated, and their sufficiency. 
 State v. Munchrath, 7S Iowa, 26S, 43 
 N. W. Rep. 211; People v. Hopt, 4 
 Utah, 247,9 P a c. Rep. 407. It is within 
 the discretion of the court to withdraw 
 a juror shown to be disqualified. Ochs 
 v. People, 124 III.399; People v. Barker, 
 60 Mich. 277. S. C. 1 Am. St. Rep. 501. 
 
 3 Bates v. Bates, 19 Texas, 122; Cross 
 v. Moulton, 15 Johns. 469. 
 
 4 State v. Whitman, 14 Rich. L. (So. 
 Car.) 113; State v. Breaux, 32 La. Ann. 
 222; Babcock v. People, 13 Col. 515. 22 
 Pac. Rep. 817; Ellis v. State, 25 Fla. 
 702. 6 So. Rep. 76S; Hawes v. State, S8 
 Ala. 37,7 So. Rep. 302; Commonwealth 
 v. Livermore, 4 Gray, 18; Atlas Mining 
 Co. f. Johnston, 23 Mich. 36; O'Brien 
 v. Vulcan Iron Works, 7 Mo. App. 257;
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 
 able for two purposes, to determine whether there is cause for a 
 challenge and whether it is expedient to peremptorily chal- 
 lenge, 1 and, while the court has a wide discretion as to what 
 questions may be asked, it is an abuse of discretion to unreason- 
 ably restrict the examination. 2 It is not possible to lay down 
 any general rule upon the subject, although it is safe to say, 
 that so long as the court does not trench upon the right to ask 
 such questions as are necessary to show grounds for challenge 
 for cause, or to elicit information reasonably necessary to de- 
 termine whether it is expedient to interpose a peremptory chal- 
 lenge, 3 there is no abuse of discretion, nor is it going too far to 
 say that unnecessarily tedious or prolix examinations are 
 
 Dodge v. People, 4 Neb. 220; Maner 
 V. State, 8 Tex. App. 361; Ware V. 
 Ware, 8 Me. 42; Watson v. State, 63 
 Ind. 548; State v. Dickson, 6 Kan. 209. 
 A- to the right to call a new panel. 
 Pierce v. State, 67 Ind. 354; Evarts v. 
 State, 4S Ind. 42 2 ; Winsett v. State, 57 
 Ind. 26; Thornton on Juries and In- 
 structions, p. 69, § S3. Of the discre- 
 tionary power to call special juries sev- 
 eral cases treat. Heyl v. State. 109 
 Ind. 5S9, 591; Deig v. Morehead, no 
 Ind. 451, 457; City of Logansport v. 
 Dykeman, 116 Ind. 15, 22; Keyes v. 
 State, 122 Ind. 527. 529. See Sage v. 
 State, 127 Ind. 15, as to irregularity in 
 selecting grand jurors, and, also, Cooper 
 
 v. State, 120 Ind. 
 
 State v. Mellor, 
 
 13 R. I. 666; Commonwealth v. Brown, 
 147 Mass. 585. 
 
 1 Pearcy v. Michigan, etc., Co., in 
 Ind. 59, S. C. 60 Am. Rep. 673. See, 
 generally, Melson 7'. Dickson, 63 Ga. 
 682, S. C. 36 Am. Rep. 12S; Lamphier 
 v. State. 70 Ind. 317; Bradbury v. Cony, 
 62 Me. 223, 16 Am. Rep. 449; Ensign v. 
 Harney, 15 Neb. 330, 48 Am. Rep. 344; 
 Diveny v. City of Elmira, 51 N V. 506. 
 For definition o\ peremptory challenge, 
 see Gulf, etc.. Co. v. Keith, 74 Tex 
 11 S. W. Rep. 1 1 17. In order to pre- 
 sent a question upon a ruling denying 
 .a challenge for cause the record should 
 
 34 
 
 show that it contains the examination 
 of the juror in full. Indianapolis, etc., 
 Co. v. Pitzer, 109 Ind. 179; Johnson v. 
 Holliday, 79 Ind. 151. 
 
 2 Watson v. Whitney, 23 Cal.375. It 
 is generally held that it is not an abuse 
 of discretion to refuse to permit ques- 
 tions to be put to a juror which tend to 
 degrade him. Hudson v. State, 1 Blackf. 
 317; State V. Mann, S3 Mo. 5S9; Me- 
 chanics Bank v. Smith, 19 Johns. 115; 
 Spron v. Commonwealth, 2 Va. Cases, 
 375; Burti'. Panjaud,99 U. S. 180. But 
 this general rule must he subject to ex- 
 ceptions. It is certainly competent to 
 make the proper inquiry when it may 
 bring out facts showing a connection 
 with some society or association which, 
 may make the juror partial to the one 
 side, or hostile to the other. State v. 
 Mann, S3 Mo. 589; Missouri, etc., C 
 Munkers, 11 Kan. 22^: Lann v. People, 
 6S 111. 303. But see State v. Wilson, S 
 Iowa, 407; Boyle v. People, 4 Col. 176; 
 United States v. Borger, 7 Fed. Rep. 
 
 193- 
 
 'Jones v. State, 2 Blackf. 475. 47S; 
 People v. Soy, 57 Cal. 102; People v. 
 Honeyman, 3 Den. 121, 124; Freeman 
 V. People, 1 Den. o: Smith V. Floyd. 
 iS Barb. 522; State v, Hamilton. 27 La. 
 Ann. 400.
 
 530 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 looked upon with disfavor, and that it is always within the dis- 
 cretion of the court to reasonably and fairly limit the examina- 
 tion on the voir dire. 
 
 § 614. Decisions upon the Qualifications of Jurors — In determin- 
 ing questions affecting the competency of persons called as 
 jurors a discretionary power is exercised by the court, 1 but it is 
 not so comprehensive as many other discretionary powers. It 
 is not, however, within the power of the court to accept an in- 
 competent person as a juror where the statute or the established 
 rules of law declare him to be disqualified, 2 for, where there are 
 such statutory or common law rules, there is, in strict accuracy, 
 no discretion. The duty of the court where such rules exist is 
 imperative. But in determining whether the answers of the 
 person called into the jury box bring him under these rules or 
 exclude him from their operation, 3 the court does exercise a 
 wide discretion. The court does not, in exercising its discre- 
 
 1 Epps v. State, 102 Ind. 539; Walker 
 v. State, 102 Ind. 502; Stephenson v. 
 State, no Ind. 358; Stout v. State, go 
 Ind. 1; Babcock v. People, 13 Col. 515; 
 22 Pac. Rep. 817; Vann v. State, S3 Ga. 
 44,9 S. E. Rep. 945; Butler v. Glens 
 Falls etc., Co., 121 N. Y. 112, 24 N. E. 
 Rep. 1S7; State v. Wyse, 32 So. Car. 
 45; People v. Hoyt, 4 Utah, 247, 9 Pac. 
 Rep. 407; State v. Claire, 41 La Ann. 
 1067; Clarke v. State, 87 Ala. 71, 6 So. 
 Rep. 36S; Grace v. Dempsey, 75 Wis. 
 313, 43 S. W. Rep. 1 127; Territory v. 
 Pratt, 6 Dak. 483, 43 N. W. Rep. 711; 
 Fogarty v. State, 80 Ga. 450; O'Brien 
 v. Commonwealth (Ky.), 12 S.W. Rep. 
 
 47i- 
 
 1 Trullinger v. Webb, 3 Ind. 198; La 
 Fayette, etc., Co. v. New Albany, etc., 
 R. Co., 13 Ind. 90; Fleming v. State, 
 11 Ind. 234; Baker v. Mine, 54 Ind. 
 542; Stoots v. State, 10S Ind. 415; 
 Block v. State, 100 Ind. 357; Rhodes v. 
 State, 128 Ind. 189, 27 N. E. Rep. 866, 33 
 Cent. L. J. 293; Lamphier v. State, 70 
 Ind. 317. See, generally, Noe v. State, 
 
 92 Ind. 92; Shields v. State, 95 Ind. 
 299; Hearne v. City of Greensburgh, 51 
 Ind. 119; Diveny v. City of Elmira, 
 51 N. Y. 506. As- to disqualification 
 by knowledge obtained from rumors or 
 newspaper reports, see Dugle v. State, 
 100 Ind. 259; Cluck v. State, 40 Ind. 
 263; Fahnestock v. State, 23 Ind. 231. 
 As to prejudice from opinions against 
 particular business, see Elliott v. State, 
 73 Ind. 10; Shields v. State, 95 Ind. 299, 
 301. But compare, Swigart v. State, 
 67 Ind. 2S7, Reiser v. Lines, 57 Ind. 
 431. The competency of a person called 
 as a juror is not to be determined from 
 isolated or fragmentary statements; his 
 entire examination should be consid- 
 ered. Butler v. State, 97 Ind. 378. 
 
 5 Stoots v. State, 10S Ind. 415; 
 Walker v. State, 102 Ind. 502; Elliott 
 v. State, 73 Ind. 10. See, generally, 
 Christie v. State, 44 Ind. 408; Patter- 
 son v. State, 70 Ind. 341; Pickens v. 
 Hobbs, 42 Ind. 270; Hudson v. State, 
 1 Blackf. 317; Jones v. State, 2 Blackf. 
 475-
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 53] 
 
 tionary functions, decide what qualifications the juror shall 
 possess, — for that is matter of established law, — but it does, in 
 most instances, exercise such functions in determining whether 
 the person called into the box possesses the qualifications re- 
 quired by the law. The decision of the court where an issue 
 of fact is made as to the competency of a juror is, in general, 
 conclusive, 1 and, it may not be out of place to add, the same 
 effect is ordinarily assigned to the decision of the trial court 
 where misconduct is charged against a juror and the decision 
 of the question is made upon oral evidence or upon affidavits 
 and counter affidavits. 2 
 
 3 615. Mode of Trial — It is, of course, not legally possible for 
 a judge or chancellor to delegate the judicial powers devolved 
 upon him by law, 3 nor can he completely and absolutely abdi- 
 
 1 Pickens v. Hobbs,42 Ind.270; Brad- 
 ford v. State, 15 Ind. 347; Miami Val- 
 ley Furniture Co. v. Wesler, 47 Ind. 65; 
 Coryell v. Stone, 62 Ind. 307; Holloway 
 v. State, 53 Ind. 554; Whistler p.Teague, 
 66 Ind. 565; Lockhart r». State, 92 Ind. 
 452. There is no right to a peremptory 
 challenge where a struck jury is called 
 under the statute, so that an examina- 
 tion should be confined to ascertaining 
 whether there is cause for challenge. 
 May v. Hoover, 112 Ind. 455. A party 
 can not, in any instance, assume the 
 facts of the particular case and under 
 guise of examining as to competency of 
 a juror obtain an opinion from him. 
 Woollen* f. Wire, no Ind. 25:. There 
 is some conflict in our decisions upon 
 the question as to the effect of the re- 
 jection of a competent juror where, not- 
 withstanding such rejection, an impar- 
 tial jury was secured. We think that 
 the true rule i> thai the error in such a 
 ruling is not fatal for the reason that no 
 harm was done the party. Coryell V. 
 Stone, 62 Ind. 307, citing Carpenter :•. 
 Dame, 10 Ind. 125, and Ileaston :•. Cin- 
 cinnati, etc., Co., 16 Ind. 275. In De 
 Pew v. Robinson 95 Ind. 109, in, the 
 
 court, in speaking of the rejection of a 
 juror, said: "This was a matter very 
 much in the discretion of the court. 
 Besides it does not appear that the ap- 
 pellant was injured and therefore this 
 ruling does not constitute an avail- 
 able error if erroneous." Stephenson 
 v. State, no Ind. 35S; Hopt v. Utah, 120 
 U. S. 430, 438; Bibb v. Reid, 3 Ala. SS; 
 People v. Arceo, 32 Cal. 40; Grand 
 Rapids, etc., Co. v. Jarvis. 30 Mich. 30S; 
 Watson v. State, 63 Ind. 54S; United 
 States v. Neverson, 1 Mackey, 152. 
 
 2 Stevens v. Stevens. 127 Ind. 560, 56S; 
 
 Dill v. Lawrence, 109 Ind. 504; Doles 
 v. State, 97 Ind. 555; Long v. State. 95 
 Ind. 481; Weaver v. State, S3 Ind. 542; 
 Luck v. State, 96 Ind. 16; Shield- v. 
 State, 95 Ind. 299; Catterlin v. City of 
 Frankfort, 87 Ind, 45; Elliott V. State. 
 75 Ind. 10; Hodges v. Bales, 102 Ind. 
 494; Hamm v. Romine, 98 Ind. 77. 
 
 3 Vandercook v. Williams. 100 Ind. 
 345; Wilkins V. State, 113 Ind. 514. 
 Neither a clerk nor an attorney, not 
 duly appointed special judge, can re- 
 ceive a verdict. Britton v. Fox, 39 Ind. 
 369; McClure v. State. 77 Ind, 2 s ;. 
 State v. Jefferson, 66 N. C. 309. See,
 
 532 ERROR IN JUDICIAL PROCEEDINGS. 
 
 cate or surrender his judicial functions ; neither can he compel 
 a party, who is in a position to enforce his rights, to submit to 
 a mode of trial dillerent from that prescribed by law. He can 
 not, for instance, deprive a part}' of a jury trial where the law 
 awards it to him, 1 but in chancery cases he may exercise a con- 
 siderable discretion in designating the mode of trial. He may. 
 for instance, refer matters to a master commissioner, 2 and. in 
 some cases, may, in his discretion, submit particular questions 
 of fact to a jury. 3 Where a party demands a trial by jury and 
 the court grants his request he can not be heard to aver that 
 the wrong mode was adopted, although the case was one for 
 the court and not for a jury. 4 While it is the right of a party 
 who duly requests it to have a suit in equity tried by the court, 5 
 still, if he acquiesces in the trial bv jury," or fails to request a 
 trial by the court, 7 he can not successfully complain on appeal. 
 But where the right to a trial by the court is secured by law, 
 as it is in chancery cases, the court can not, where objection is 
 duly made, submit a cause entirely to the decision of a jury, 
 although it is discretionary with it to accept or reject the de 
 cision of the jury upon the facts. This is so, because the court 
 
 generally, Van Slyke v. Trempealeau, the court, see Rogers v. Union Central, 
 
 etc., Co., 39 Wis. 390; Hall v. Marks, etc., Co., in Ind. 343; Brown v. Russell, 
 
 34 111. 35S; Missouri River Tel. Co. v. 105 Ind. 46; Stix v. Sadler, 109 Ind. 254. 
 First National Bank, 74 111. 217. B Lane v. Schlemmer, 114 Ind. 296; 
 
 1 Lake v. Lake, 99 Ind. 339. Carmichael v. Adams, 91 Ind. 526; Mc- 
 
 2 Fitzgerald v. Hayward, 50 M0.516; Bride v. Stradley, 103 Ind. 461;; Miller 
 Martin v. Hall, 26 Mo. 385; Dooly v. v. Evansville National Bank, 99 Ind. 
 Barker, 2 Mo. App. 325; Youngt/.Led- 272; Ketcham v. Brazil, etc., Co., SS 
 rick, 14 Kan. 92. But in these cases there Ind. 515: Hendricks v. Frank, S6 Ind. 
 is no delegation of judicial power, since 27S; Evans v. Nealis, 87 Ind. 262; Tag- 
 these ministers of the court do not de- gart v. Tevanny, 1 Ind. App. Ct. 339. 
 cide the case; the power of final and ef- See, also, authorities cited in preceding 
 fective decision remains in the court. notes. 
 
 3 Lake Erie, etc., Co. v. Griffin, 92 6 Ikerd v. Beavers, 106 Ind. 483; Carr 
 Ind. 4S7; Pence v. Garrison, 93 Ind. v. Hasket, no Ind. 152; Sprague v. 
 345; Farmers' Bank v. Butterfield, 100 Pritchard, 10S Ind. 491. 
 
 Ind. 229; Israel v. Jackson, 93 Ind. 543. 7 Jarboe v. Severin, 112 Ind.572. He 
 
 4 Dawson v. Shirk, 102 Ind. 1S4. must, as elsewhere said, reserve an ex- 
 Tlie ruling in this case is well sup- ception and specify the ruling in the 
 ported by the established principle that motion for a new trial. Huffmond v. 
 parties will be held to trial court theo- Bence, 12S Ind. 131, 137. 
 
 ric :s. As to what cases are triable by
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 
 must retain and exercise the power of giving the ultimate and 
 decisive judgment. 
 
 § 616. Condnct of the Trial — The time at which the cause shall 
 be tried may, as a general rule, be fixed by the court, subject, 
 of course, to the provisions of the law allowing time for the 
 formation of issues. 1 Courts may, so long as they keep within 
 the limits of discretion, establish reasonable rules of trial pro- 
 cedure, 2 but they have no power to adopt a rule which will de- 
 prive a party of a clear legal right. 3 The trial court may, as a 
 general rule, determine how long a trial shall be protracted, 
 and unless there are some peculiar circumstances palpably 
 showing that the hours determined upon by the court were so 
 manifestly unreasonable as to constitute an abuse of discretion, 
 its action will not be revised on appeal. 1 It is affirmed in 
 many cases that it is within the discretion of the trial court to 
 
 1 Indianapolis, etc., Co. v. Caven. 53 
 Ind. 258; Foster v. Ilinson, 76 la. 714, 
 39 X. W. Rep. 6S2; State v. Maher, 74 
 Iowa, 77, 37 N. W. Rep. 2. See, gen- 
 erally, Philadelphia, etc., Co. r.Stimp- 
 son, 14 Pet. 44S; Turner v. Yates, 16 
 How. (U. S.), 114. 
 
 2 In Krutz v. Howard, 70 Ind. 174, 
 176, it was said: "Courts have the 
 power, and it is their duty, to adopt 
 rules for conducting business therein 
 not repugnant to the laws of the state.'' 
 Rules of trial courts were upheld in 
 Truitt -•. Truitt, 38 Ind. 16; Vail v. 
 McKernan, 21 Ind. 421; Reitz v. State, 
 33 Ind. 187; Redman v. State, 2S Ind. 
 205; Galloway v. State, 29 Ind. 442; Jef- 
 fersonville, etc., Co. v. Avery, 31 Ind. 
 277; Ollam v. Shaw. 27 Ind. 3SS. See, 
 generally, Langsdale :•. Woollen, 99 Ind. 
 ^7;; Jones v. Rittenhouse, S7 [nd.348; 
 Thompson v. Pershing, S6 Ind. 303; 
 Hoke v. Applegate, 92 Ind. 470; Moore 
 v. Sargeant, 112 Ind. 484. 
 
 5 Krutz v. Griffith, 68 Ind. 444; Krutz 
 v. Howard. 70 Ind. 174; Laselle v. 
 Wells, 17 Ind. 33; Jeffersonville, etc.. 
 
 Co. 7'. Hendricks, 41 Ind. 4S; Shoe- 
 maker v. Smith, 74 Ind. 71. The court, 
 in speaking of a trial court rule in the 
 case of Crotty v. Wyatt, 3 Bradw. [11. 
 A pp. Ct.), 38S, 399, said: "As to this 
 rule we know nothing, as it is not found 
 in the record. Still, the court by virtue 
 of the power conferred to establish 
 rules of practice to facilitate the dis- 
 patch of business, could not by such 
 rules deprive a party of a well estab- 
 lished legal right." Valid rules of pro- 
 cedure are, in a sense, the law. and 
 parties must obey them. Rout :■. Ninde, 
 in Ind. 597. Judicial notice is not, 
 however, taken by the appellate tri- 
 bunal of the special rules adopted by 
 trial courts. Knarr ;•. Conaway, 42 Ind. 
 260; Rout :■. Ninde. m Ind. 597; San- 
 don v. Proctor, 7 B. & C. Soo. But an 
 excuse for not complying with a rule 
 may be shown. Bernhamer v. State, 
 123 End. 577; Moulder :•. Kempff. 115 
 Ind. 459, 463. A clear showing must 
 be made. Riggenberg : . Hartman, 102 
 Ind. 387. 
 4 Wartena v. State. 105 Ind. :
 
 534 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 consolidate for trial several actions where the}- arise out of the 
 same subject, 1 hut to us it seems that this doctrine is one to be 
 accepted with qualification and applied with scrupulous care. 
 In civil cases the limitation upon the length of time to be 
 allowed for argument is a matter resting to a great extent in 
 discretion of the trial court. 2 But if the nisi frius court should 
 unreasonably limit the time of argument so as to unjustly 
 abridge the right of a party to be heard in argument by coun- 
 sel, it would be regarded as an abuse of discretion. 3 It has 
 been held, and with reason, that, within the scope of a reas- 
 onable discretion, the court may limit the number of counsel 
 that shall be heard in argument. 4 
 
 § 617. Control of the Delivery of Evidence — The order in which 
 evidence shall be introduced is a matter largely within the dis- 
 cretion of the trial court. 5 As a general rule courts permit par- 
 
 Speaking of the right of the trial court 
 to control its sittings it was said in the 
 case cited: "It is undoubtedly the 
 province of the nisi prius courts, in the 
 exercise of a sound discretion, to regu- 
 late the course <>f business during the 
 ress of trials. I ncluded in this is the 
 right, during the term, in a proper way, 
 to control its own sittings." In McGow- 
 iii v. Campbell, 28 Kan. 25, 30, it was 
 held an abuse of discretion to continue in 
 session during an entire night. It may 
 be said that the intercourse between 
 the bench and the baris 1 matter largely 
 for regulation by the trial court. Long 
 V. Mate, 12 Ga. 293, 330. 
 
 1 City of Springfield v. Sleeper, 115 
 Mass. 587; Kimball -■. Thompson, 4 
 Cush.441; Commonwealth u.Jami 
 Mass. 438; Commonwealth v. Powers, 
 I'M Mas^. 353. 
 
 * Baldwin v. Burrows, 95 I nil. 81; 
 Cory v. Sileox, 5 Ind. 370; Priddy v. 
 Dodd, 4 Intl. 84; Rosser v. McColly, 9 
 Ind. 587; Lynch v. State. 9 Ind. 541; 
 Musselman v. Pratt, 44 Ind. 126; Tice 
 v. Hannibal, etc., Co. 35 Mo. 416; Hob- 
 
 bins v. Oswalt, 20 Ark. 619, 624; Ben- 
 son v. Mahoney, 6 Baxt. 304, 307; Fre- 
 ligh v. Ames, 31 Mo. 253; Hart v. State, 
 1 I Wh. 572; People v. Kelly, 94 X. Y. 
 520; Williams z>. Commonwealth, 82 
 K v. I 
 
 3 Brooks v. Perry, 23 Ark. 32; Wea- 
 ver v. State. 24 Ohio St. 584; State v. 
 Collins, 70 N.C. 241; Sullivan:'. State, 
 46 N.J. L. 446; People v. Keenan, 13 
 Cal. 581, 5S4; White v. People, 90 [11. 
 1 17; Dille V. State, 34 Ohio St. (.17. 
 Hunt v. State, 49 Ga. 255. It" further 
 time than that designated by the court is 
 desired, the appropriate request should 
 be preferred, an exception reserved to 
 the refusal, and an opportunity for re- 
 view presented by a proper specification 
 in the motion for a new trial. Redman 
 v. State, 28 I nil. 205; Baldwin v. Bur- 
 rows, 95 Ind. 81; Williams x\ Com- 
 monwealth, 82 Ky. 640; Kizer v. State, 
 12 Lea. 564. 
 
 4 Sodousky v. McGee, 4 J. J. Marsh. 
 207; United States v. Mingo. 2 Curtis 
 C. C. Rep. 1. 
 
 5 Western Union Telegraph Co. v.
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 
 ties to introduce evidence in the order they choose,' but this is 
 a matter of favor and not of right.- The strict rule is that the 
 plaintiff can not introduce evidence in reply that should prop- 
 erly be given in chief, and if the court holds a party to this rule 
 he can not, except in an unusual and peculiar case, success- 
 fully complain.' 5 If, however, the trial court deems it proper to 
 relay the strict rule and permit evidence in chief to be given 
 after the adverse party has rested, there is, ordinarily, no such 
 abuse of discretion as constitutes available error. 4 Nor is there 
 necessarily an abuse of discretion in refusing to permit a party 
 to recall a witness who has been dismissed, 5 although it is 
 within the rightful discretion of the court to permit such a wit- 
 ness to be recalled and re-examined. 6 It is not necessarily, 
 nor, indeed, ordinarily, an abuse of discretion to admit evidence 
 after the argument has closed. 7 
 
 Buskirk, 107 Ind. 549; Noblesville, etc., 
 Co. v. (i;iihi', 76 Ind. 1 _} J ; Nye V. Lowry, 
 82 Ind 316; Pittsburgh, etc., Co. v. Noel, 
 77 Ind no; Case v. Grim, 77 Ind. 565; 
 Blake v. Powell, 26 Kan. 320; Agate v. 
 Morrison, S4 N. Y. 672; Goodman v. 
 Kennedy, 10 Neb. 270; Walker v. 
 Walker, 14 Ga. 242; People v. Durfee, 
 62 Mich. (.87. 
 
 ' Burns v. Harris, 66 Ind. 536; Fow- 
 ler v. Hawkins, 17 Ind. 211; Clawson 
 v. Lowry, 7 Blackf. 140; Webb v. State, 
 29 Ohio St. 351; Goss V. Turner. 21 
 Vt.437. 
 
 2 Ward v. Montgomery, 57 Ind. 276. 
 The court may hold parties tothestricl 
 rules of evidence. Woollen v. Wire, 
 no Ind. 251. It is not, however, so far 
 as concerns the order of introducing 
 evidence, hound to do so. Kusler v. 
 Crofoot, 78 Ind. 597. 
 
 3 Fitzpatrick v. Papa, 89 Ind. 1 7; Nave 
 v. Flack, 90 Ind. 205; Macullar r.W.ill, 
 6 Gray, 507; Hathaway v. Hemingway, 
 20 Conn. 190, 195; Gilpin v. Consequa, 
 3 Wash. C. C. [84; Braydon v. Goul- 
 man, 1 T. B.Monr. (Ky.) [15; Graham 
 -■. Davis, 4 Ohio St. 362; York v. Pease, 
 2 Gray, 282; Ashworth v. Kittridge, 12 
 
 Cush. 193; Brown v. Marshall, 120 Ind. 
 323; Shea's Appeal, 121 Pa. St. 302. 15 
 Atl. Rep. 629; Rhodes v. Green, 36 Ind. 
 7; Williams v. Allen, 40 Ind. 295. 
 
 4 Stewart v. Smith, in Ind. $2f>; 
 Morris v. State, 94 Ind. 505; Mayfield 
 v. State, no Ind. 591; McKinnev v. 
 Jones, 55 Wis. 39; Caldwell v. New 
 Jersey, etc., Co., 47 N. Y. 2S2; John- 
 ston v. Mason. 27 Mo. 511; Larman v. 
 Huey, 13 B. Monr.436; Commonwealth 
 v. Ricketson, 5 Metcf.(Mass.) 412; Dar- 
 land :•. Rosencrans, 56 Iowa, 122: Mc- 
 Dowell v. Crawford. 11 Gratt. 377,408. 
 
 5 Morehouse v. Heath, 99 Ind. 
 The proper practice is to obtain leave to 
 recall the witness: a party can not. as 
 of strict right, recall a witness once ex- 
 amined. Nixon v. Board, m Ind. 137; 
 Beaulieu v. Parsons, 2 Minn. 37; Gi- 
 raull v. Adams, 61 Md. 1, 9. 
 
 6 Hollingsworth v. State, 79 Ga. 605, 
 I S. E. Rep. 560; Fowler w. Strawberry 
 Hill. 74 Iowa. (44. 38 X. W. Rep, 521; 
 Gulf. etc.. Co. r. Pool, 70 Texas, 713; 
 Swift v. Ratlitf. 74 Ind. 426; Riley v. 
 Suite, SS Ala. 193, 7 So. Rep. 140. 
 
 ' Breedlove : c . Bundy, 96 Ind. 319; 
 Watt v. Alvord, 25 Ind. 533; Curm v.
 
 536 ERROR IX JUDICIAL PROCEEDINGS. 
 
 § 618. Examination of Witnesses — In the matter of the exam- 
 ination of witnesses the trial court necessarily exercises a com- 
 prehensive discretion, but broad as its discretion is, it can not r 
 without error, deny a party the right to give competent evi- 
 dence, nor can it, without a departure from the law, admit in- 
 competent evidence which prejudices a party's cause. 1 There 
 is, however, a broad field outside of that enclosed by fixed 
 rules of law over which the discretionary power extends. 
 Thus, the court may prevent the repetition of questions 2 and 
 answers, yet it is not necessarily an abuse of discretion to per- 
 mit a duplication or repetition of evidence, 3 although, if car- 
 ried to an unreasonable and unjust extent, it might constitute 
 an abuse of the discretion lodged in the court. It is within the 
 discretion of the court to limit the number of witnesses, and 
 unless there is an abuse of discretion its ruling will be re- 
 spected on appeal. 4 The determination of the limits within 
 which a cross-examination shall be confined is largely within 
 the discretion of the trial court, 5 but it is an abuse of discretion 
 to so fetter and shorten the cross-examination as to deny a 
 party a fair and reasonable opportunity to test the accuracy of 
 
 Rauh, 100 Ind. 247; Colton v. Vander- * Union, etc., R. Co. v. Moore, 80 Ind. 
 
 golgen, 87 Ind. 361; Stipp v. Claman, 45S; Jones v. Lindsay, 98 Ind. 218; 
 
 123 Ind. 532; Testard v. State, 26 Tex. Mergentheim v. State, 107 Ind. 567; 
 
 App. 260, 9 S. W. Rep. 8SS; State v. Hilliard v. Beattie, 59 N. II. 462; Bays 
 
 Powell, 40 La. Ann. 241. See, also, V. Hunt, 60 la. 251; Everett v. Union 
 
 Fogarty v. State, So Ga. 450, 5 S. E. Pacific R. Co., 59 la. 243. In the case 
 
 Rep. 782; Hornsby v. South Carolina last cited the decision was by a divided 
 
 R. Co., 26 So. Car. 187, 1 S. E. Rep. court and it is doubtful whether the rule 
 
 594. See Beagles v. Sefton, 7 Ind. 496. was not carried beyond its just limits. 
 
 1 Conden v. Morningstar, 94 Ind. 150; Riggs v. Sterling, 60 Mich. 643, S. C. 
 Spencer v. Robbins, 106 Ind. 580; State 1 Am. St. Rep. 554. In Hubble v. Os- 
 v. Thomas, in Ind. 515; Campbell v. born, 31 Ind. 249, it was held an abuse 
 Hunt. 104 Ind. 210; Rush v. Thompson, of discretion to limit a party to one 
 112 Ind. 15S. witness upon a vital point. A limita- 
 
 2 Lockwood t'.Rose, 12^ Ind. ^SS,595; tion in a criminal prosecution to two 
 Clark v. Rhoads, 79 Ind. 342. See, gen- witnesses was held erroneous in Gard- 
 erally, McSweeney :•. McMillen, 96 ner v. State, 4 Ind. 632. 
 
 Ind. 29S; Metzler V. Metzler, 99 Ind. 5 Rea t\ Missouri, 17 Wall. 532; Mul- 
 
 5S4; Watson v. Crowsore, 93 Ind. 220; hollin v. Ward, 7 Ind. 646; Ledford v. 
 
 ver v. Johnson, 79 Ind. 554. Ledford, 95 Ind. 2S3; Tothlinson v. 
 
 Adams v. Lee. S: Ind. 587; Will- Briles, 101 Ind. 538; Pedigo v. Grimes, 
 
 iamson v. Yingling, 93 Ind. 42; Rhodes 113 Ind. 148; Storm v. United States, 
 
 v. Green. 36 End. 7. 94 U. S. 76, 84; Harris v. Central R.
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 537 
 
 the memory of the witness or the truth of his testimony. 1 It is 
 a necessary result of the principle that the mode of conducting 
 the examination of witnesses is chiefly a matter of discretion ; 
 that it should be discretionary with the trial court to permit or 
 to deny counsel the privilege of asking leading questions. 
 Some of our cases indicate that it is error to permit leading 
 questions to be asked, but the rule as established by the later 
 cases is that it is discretionary with the court to permit leading 
 questions to be asked, and that the appellate tribunal will not 
 interfere unless it clearly appears that there was an abuse of 
 discretion resulting in injury to the complaining party. 2 This 
 rule is sustained by the overwhelming weight of authority, 3 and 
 is the only rule defensible upon principle. It is within the dis- 
 cretion of the court to grant or deny an order directing the 
 
 Co., 78 Ga. 525. 3 S. E. Rep. 355; Simon 
 v. Home Ins. Co., 58 Mich. 27S; De- 
 merritt v. Randall, 1 16 Mass. 331 ; City 
 of South Bend v. Hardy, 9S Ind. 577. 
 
 1 II viand v. Milner, 99 Ind. 30S; 
 Louisville, etc., Co. v. Wood, 113 Ind. 
 544; Barnett v. Feary, 101 Ind. 95; 
 Mitchell v. Tomlinson, 91 Ind. 167; 
 Vogel v. Harris, 112 Ind. 494; Brown 
 v. Owen, 94 Ind. 31; Blake v. Powell, 
 26 Kan. 320; Coates v. Hopkins, 34 Mo. 
 135; Ferguson v. Rutherford, 7 Xcv. 
 3S5; Kalk v. Fielding, 50 Wis. 339; 
 Bowers v. Mayo, 32 Minn. 241; Schus- 
 ter v. Wingert, 30 Kan. 529; Wallace 
 v. Taunton Street R. Co., 119 Mass. 
 91; Wachstetter v. State, 99 Ind. 290; 
 Oliver v. Pate, 43 Ind. 132; Kellogg v. 
 Nelson, 5 Wis. 125, 131. It is evident 
 that it is safer to allow a wide latitude 
 to cross-examining counsel than to re- 
 strict them, since it is scarcely possible 
 to permit too extended an examination, 
 provided of course, the cross-examina- 
 tion is confined to the subject of the di- 
 rect examination, but it is quite easy to 
 unduly abridge the important right of 
 cross-examination. 
 
 2 Goudy v. Werbe, 117 Ind. 154, 157; 
 
 Sohn v. Jervis, 101 Ind. 578; Blizzard 
 v. Applegate, 77 Ind. 516; Weik v. 
 Pugh, 92 Ind.3S2; Hunsinger v. Hofer, 
 no Ind. 390; Board of Commissioners 
 v. Dombke, 94 Ind. 72; Kyle v. Miller, 
 10S Ind. 90. In Hunsinger v. Hofer, 
 supra, the court said : " It is only where 
 there is a very clear and prejudicial 
 abuse of discretion in permitting lead- 
 ing questions to be asked that a judg- 
 ment will be reversed." 
 
 3 Whiting v. Mississippi, etc., Co. 
 76 Wis. 592, 45 N. W. Rep. 672; Ober- 
 nalte v. Edgar, 2S Neb. 70, 44 N. W. Rep. 
 82; Parker v. Georgia, etc., Co., 83 Ga. 
 539, 10 S. E. Rep. 233; Smith v. Hays, 
 23 111. App. Ct. 244; Cade v. Hatcher, 
 72 Ga. 359; Lawson v. Glass, 6 Col. 134; 
 Addison v. State. 4S Ala. 47S; Walker 
 v. Dunspaugh, 20 X. Y. 170; Donnell 
 v. Jones, 13 Ala. 490; Hopkinson v. 
 Steel, 12 Vt. 5S2; Farmers, etc., Co. v. 
 Groff, S7 Pa. St. 124; State v. Lull. 37 
 Me. 246; Moody y.Rowell, 17 Pick. 490, 
 49S. Some of the courts hold that 
 there can be no abuse ot discretion in 
 allowing leading questions. Bundy v. 
 Hyde, 50 N. H. 116; Steer v. Little. 44 
 N. II. 613.
 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 separation of witnesses. 1 But parties have a right to be pres- 
 ent during the trial, and, although they may be witnesses, it is 
 error to exclude them from the court room. 2 It is held that it 
 is proper for the court, where the presence of the agent of one 
 of the parties is essential to advise counsel so as to enable them 
 to properly conduct the cause, to except such agent from the 
 order directing a separation of the witnesses. 3 There is not, 
 at all events, an abuse of discretion in excepting such an agent 
 from the order excluding witnesses from the court room while 
 others are testifying. 
 
 § 619. Ordering a View — It is often necessary, to enable the 
 jury to justly apply the evidence, that they should see and in- 
 spect the place where an event or transaction described by the 
 witnesses occurred, and it is within the sound discretion of the 
 court to grant or deny an order to view the place. 4 Where the 
 trial court does not abuse its discretion, its ruling in granting 
 or denying an inspection and view r will not be reviewed on ap- 
 peal. 5 A view is not, according to our decisions, strictly speak- 
 
 1 Detrick v. McGlone, 46 Ind. 291; * Ryan v. Couch, 66 Ala. 244; Betts 
 
 Porter v. State, 2 Ind. 435; Jackson v. State, 66 Ga. 508. The rule stated 
 
 v. State, 14 Ind. 327; Nelson v. State, applies to a counsel who is also a wit- 
 
 2 Swan. (Tcnn.) 237; Johnson v. State, ness and it is proper to except him from 
 
 2 Ind. 652; Errissman v, Errissman, 25 the order. Powell v. State, 13 Texas 
 
 111. 119. A party is not to be deprived App. 244; Pomeroy v. Baddeley, Ryan 
 
 of the testimony of a witness who dis- & Mooch, 430; Everett v. Lowdham, 5 
 
 obeys the order of a court requiring Car. & P. 91. 
 
 witnesses to be separated and kept out 4 The statute provides for a view and 
 
 of the court room. The penalty for directs how it shall be conducted. R. 
 
 disobedience must be enforced against S. 18S1, § 53S. See Inspection and View, 
 
 the wrong doing witness and not against Work of the Advocate, 232-236. See, 
 
 a party who is without fault. Burk v. also, Erwin v. Bulla, 29 Ind. 95; Luck 
 
 Andis, 98 Ind. 59; State v. Thomas, m 7'. State, 96 Ind. 16; City of Indianao- 
 
 [nd. 515; Davis v. Byrd, 94 Ind. 525. olis v. Scott, 72 Ind. 196. 
 
 In the case last cited the doctrine given 5 Com. v. Webster, 5 Cush. 295, 29S; 
 
 a </iKisi approval in Jackson v. State, 14 Williams v. Grand Rapids, etc., Co., 53 
 
 Ind. 327, is denied. If witness disobeys Mich. 271; Coyner v. Boyd, 55 Ind. 166; 
 
 it may affect his credit. Pleasant v. People v. Buddensieck, 103 N. Y. 487; 
 
 . 15 Ark. 624; Grimes V. Martin, Pick 7\ Rubicon, etc.. Co., 27 W T is. 433, 
 
 10 la. 347; Betts v. State, 66 Ga. 50S. 442, 446; Smith v. St. Paul, etc., Co., 32 
 
 i Cottrell 7'. Cottrell, Si Ind. 87; La Minn. 1; Clayton v. Chicago, etc., Co., 
 
 Rue v. Russell. 26 Ind. 3S6; Shew v. 67 Iowa, 238; Richmond v. Atkinson, 
 
 Hews, 126 Ind. 474, 476; Chester v. 58 Mich. 413; People v. Bonney, [9 
 
 Bower, 55 Cal. 46. Cal. 426. It has been held that in
 
 EXERCISE OF DISCRETIONARY POWER. 
 
 539 
 
 ing, part of the evidence given on the trial ; it simply enables 
 the triers of the fact to apply the evidence. 1 While not strictly 
 evidence, as the decisions declare, still, it certainly is not with- 
 out some probative influence. 2 
 
 § 620. Compulsory Examination of the Person — Closely akin to 
 the subject discussed in the preceding paragraph is that of 
 compelling a plaintiff in an action for personal injuries to sub- 
 mit to an examination of his person by surgeons. Upon this 
 subject there is much diversity of opinion, some of the courts 
 holding that the demand for an examination is a matter of right, 
 others holding that it is in the discretion of the court to grant 
 or deny the demand for the examination. 3 Our own cases are 
 in confusion and indeed, in conflict, although it can hardly be 
 said that there is any authoritative decision upon the subject. 4 
 
 equity cases the chancellor should ac- 
 company the jury. Fraedrich v. Flieth, 
 64 Wis. 184. There is a stubborn con- 
 flict upon the question whether a de- 
 fendant must accompany the jury, but 
 the weight of authority seems to be that 
 it is not indispensably necessary that he 
 should. State V. Adams, 20 Kan. 311, 
 324; Queen v. Martin, L. R 1 Cr. C. 
 Res. 37S; State v. Ah Lee, 8 Ore. 214; 
 Shular v. State, 105 Ind. 2S9. 
 
 1 Chute v. State, 19 Minn. 271; Brak- 
 ken v. Minneapolis, etc., Co., 29 Minn. 
 41; Close v. Samm, 27 Iowa, 503, 507; 
 Wright v. Carpenter, 49 Cal. 607; Heady 
 v. Yevav, etc.. Co., 52 Ind. 117; Jeffer- 
 sonville, etc., Co. v. Bowen, 40 Ind. 545; 
 Gagg v . Vetter, 41 Ind. 228. 
 
 2 NefTc'. Reed, 98 Ind. 341, 347. Many 
 of the cases, indeed, assign to a view the 
 effect of evidence. Parks v. Boston, 15 
 Pick. 19S; Washburn v. Milwaukee, 
 etc., Co., 59 Wis. 364; Neilson v. Chi- 
 cago, etc., Co., 58 Wis. 516. Some of 
 the courts have been influenced, to de- 
 clare that an information imparted by 
 a view is not evidence, for the reason 
 that it can not be carried into the 
 record. But this seems to us unsatis- 
 factory. Appellate courts do not weigh 
 
 evidence, and hence the fact that infor- 
 mation is conveyed by a view is not of 
 such high importance as courts some- 
 times indicate. A court can, notwith- 
 standing the fact that a view has been 
 had, still act upon the evidence in the 
 record, and if it appears that jurors 
 have disregarded it and acted upon their 
 own knowledge, the courts can annul 
 the verdict. 
 
 3 See cases cited in " The Work of t lie 
 Advocate.'' 234; Schroeder v. Rock Isl- 
 and, etc., Co., 47 Iowa, 375; Walsh :■. 
 Sayre, 52 How. Pr. 334; White v. Mil- 
 waukee, etc., Co., 61 Wis. 536; Miami, 
 etc., Co. v. Baity, 37 Ohio St. 104; 
 Shephard v. Missouri, etc., Co., 85 Mo. 
 629; Atchison, etc., Co. v. Thul. 29 
 Kan. 466; International, etc., Co. v. 
 Underwood, 64 Texas, 463; Missouri 
 Pacific R. Co. v. Johnson, 72 Texas, 95; 
 Sibley v. Smith. 46 Ark. 275; Lloyd v. 
 Hannibal, etc., Co., 53 Mo. 509; Parker 
 V. Enslow, 102 111. 272, 279; Robert- - 
 Ogdensburg, etc., Co., 29 Hun. 154; 
 Stuart V. Haven. 17 Neb. 211; Sioux 
 Citv. etc., Co. v. Finlayson, 16 Neb. 
 578, 5 ss. 
 
 4 Kern v. Bridewell. 119 Ind. 
 Hess v. Lowrey, 122 Ind. 225. S. C. 7
 
 540 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 It is hazardous in view of the conflict among the decisions to 
 venture an opinion and especially one opposed to that of emi- 
 nent text-writers, 1 but after a careful study of the question, we 
 are unable to escape the conclusion that the rule, which is 
 probably asserted by the greater number of cases, is wrong. It 
 is true there is much to be said in favor of the rule, but, as we 
 believe, the great weight of reason is against it. The rule is 
 one which may so operate as to deter modest women, or even 
 men, from asserting their just rights, inasmuch as they may 
 not be able or willing to bear the examination of their persons 
 by strange men, and often men who are hostile to them. They 
 are in such cases forced to sacrifice their rights by a fear of ex- 
 posure. The rule, we venture to say, assumes to sanction an 
 illegal violation of the right of personal liberty, and takes from 
 the person of the citizen the sacredness with which the funda- 
 mental law invests it. 2 
 
 Law. Rep. Anno. 90; Terre Haute, etc., 
 Co. t. Brunker, 128 Ind. 542, 26 N. E. 
 Rep. 178. The expressions upon the 
 subject in Hess v. Lowrej, supra, are 
 certainly outside of the case and are not 
 authoritative. 
 
 1 Rogers' Expert Testimony, § 79; 
 Seymour D. Thompson in 25 Central 
 Law Journal, 3, 7. 
 
 2 Since the text was written the ques- 
 tion has been passed upon by the Su- 
 preme Court of the United States in 
 the case of Union Pacific Ry. Co. v. 
 Botsford, 11 Sup. Ct. Rep. 1000, S. C. 
 1 ( Albany Law Jour. 325. In the case 
 cited the court held that a compulsory 
 examination could not be ordered, say- 
 ing, among other tilings, that: "No 
 right is held more sacred, or is more 
 carefully guarded by the common law, 
 than the right of every individual to the 
 possession and control of his own per- 
 son, free from all restraint or inter- 
 ference of others, unless by clear and 
 unquestionable authority of law. As 
 well said by Judge Cooley: 'The right 
 to one's person may he said to he one 
 
 of complete immunity; to be let alone.' 
 Cooley Torts, 29. For instance, not 
 only wearing apparel, but a watch or a 
 jewel worn on the person, is for the 
 time being privileged from being taken 
 under distress for rent or attachment 
 on mesne process, or execution for 
 debt or writ of replevin. 3 Black Com. 
 8; Sunbolf v. Alford, 3 Mees & W. 24S, 
 253, 254; Mack v. Parks, 8 Gray, 517; 
 McQuigg v. Dailey, 16 Ind. 324. The 
 inviolability of the person is as much 
 invaded by a compulsory stripping and 
 exposure as by a blow. To compel any 
 one, and especially a woman, to lay 
 bare the body, or to submit it to the 
 touch of a stranger without lawful au- 
 thority, is an indignity, an assault and 
 a trespass, and no order commanding 
 such an exposure or submission was 
 ever known to the common law in the 
 administration of justice between indi- 
 viduals except in a very small number 
 of cases based upon special reasons, 
 ami upon ancient practice coming down 
 from ruder ages, and now mostly obso- 
 lete in England, and never, so far as we
 
 EXERCISE OF DISCRETIONARY POWER. 541 
 
 § 621. Discharge of the Jury before Verdict — The discretion of 
 the trial court in discharging a jury before a verdict is reached 
 will be reviewed even in criminal cases only where it has been 
 so unreasonably exercised as to require the inference that the 
 discretion was abused. The earlier cases declared a somewhat 
 different doctrine, but the later and sounder cases affirm that it 
 is for the trial court to determine how long the deliberations 
 shall be protracted. 1 This discretion can not, however, be un- 
 reasonably exercised without error. It is usually said that the 
 jury in criminal cases may be discharged after the lapse of a 
 reasonable time, but no definite rule for determining what is a 
 reasonable time has, so far as we can ascertain, been laid down. 2 
 In civil cases the jury may be discharged, as the statute de- 
 clares, when it satisfactorily appears that there is no possibility 
 of their agreeing. 3 This provision vests a very comprehensive 
 discretion, if not an uncontrollable power, in the trial court, in- 
 asmuch as its effect is to leave the whole question to the trial 
 court, and if that court is satisfied it seems that all other courts 
 must abide by its decision. A final adjournment of the term 
 discharges the panel, 4 and the failure of one juror to appear puts 
 it in the power of the court to discharge the jury. 5 
 
 are aware, introduced into this country." charge of panel and individual jurors, 
 In the case of Pennsylvania Co. v. New- as for cause, see Doles v. State, 97 Ind. 
 merer, 28 N. E. Rep. 860, the Supreme 555; State v. Leunig, 42 Ind. 541. 
 Court of this State asserts the doctrine 2 In some of the cases cited in the pre- 
 declared in the case from which we ceding note a period of eighteen or nine- 
 have quoted. teen hours was regarded as a reasonable 
 1 Walker v. State 26 Ind. 346; State time. In accordance with the general 
 v. Nelson, 26 Ind. 366; Shaffer v. State, rule which prevails in criminal cases 
 27 Ind. 131; Proffatt on Jury Trials, requiring the presence of the accused, 
 Chapter II. See, generally, Miller v. the jury should not be discharged in 
 State, 8 Ind. 325; Morgan v. State, 13 his involuntary or enforced absence. 
 Ind. 215; Joy v. State, 14 Ind. 139; State v. Wilson, 50 Ind. 4S7. Nor 
 Hogg v. State, 7 Ind. 551; Miller v, should the jury be instructed in his un- 
 State, supra, intimates a doctrine that willing absence from the court. Roberts 
 can not be sustained. In England the v. State, m Ind. 340. 
 rule is that the discretion of the trial 3 R. S. 1S81, § 542. 
 court will in no event be reviewed on * Harris v. Doe, 4 Blackf. 369. 
 appeal. Queen v. Charlesworth, 1 B. 5 Ashbaugh v. Edgecomb, 13 Ind. 
 & S. 460; Winsor v. Queen, 6 B. & S. 466; Maynard v. Block, 41 Ind. 310. 
 143. As to what will authorize dis-
 
 ,!J ERROR IN \.L, PROCEEDINGS. 
 
 22. Time for Filing Bills of Exceptions — A trial court, while 
 in session, has a discretionary power to grant time either within 
 or beyond the term, for tiling a bill of exceptions. If it makes 
 the older in term its discretion will not be supervised on appeal, 
 but an abuse of discretion may be so gross as to constitute error. 
 It is seldom, however, that an order designating a time within 
 which an act shall be done is subject to review on appeal.
 
 CHAPTER III. 
 
 INVITED ERROR. 
 
 §623. The error itself as distinguished §627. Implied invitation to rule er- 
 
 from matters of procedure re- roneously. 
 
 quired to make it available. 628. Opening the door to the admis- 
 
 624. Making wrong rulings available sion of incompetent evidence. 
 
 as error. 629. Admission of incompetent evi- 
 
 625. Conduct of the parties as affect- dence — Effect upon the party 
 
 ing the right to make errors who introduces it. 
 
 available. 630. The doctrine of invited error 
 
 626. Procuring an erroneous ruling. founded on the principle of 
 
 4 estoppel. 
 
 § 623. The Error itself as distinguished from matters of Proced- 
 ure required to make it Available — It is necessary, at the outset, 
 to mark the difference between the error itself and the proced- 
 ure required to make the error available. That there is a ma- 
 terial difference is perceived without effort when attention is 
 fully directed to the subject. It may happen that there is a 
 wrong ruling and yet no available error, for it may be true that 
 the party is not in a position to avail himself of the error or 
 that he has not done all that the case required of him. It is 
 k one thing to take such steps as make it necessary for the appel- 
 late tribunal to consider the wrong ruling, and quite another 
 thing to prove that the error is sufficient to reverse the judg- 
 ment of the trial court. The one object is accomplished when 
 such steps are taken as make the error available, but the other 
 object can not be accomplished without also showing the in- 
 trinsic nature of the wrong ruling, its improper influence upon 
 the ultimate judgment given in the cause and that the party 
 has not, by his conduct, precluded himself from making the 
 error available for the reversal of the judgment. 
 
 § 624. Making wrong Rulings Available as Error — The steps 
 necessary to render a wrong ruling available, that is, to prop- 
 
 f54^
 
 54 4 ERROR IN JUDICIAL PROCEEDINGS. 
 
 erlv bring it before the appellate tribunal for review, are mat- 
 ters of procedure, while the effect of the error upon the judg- 
 ment appealed from springs from the intrinsic character of the 
 wronff ruling itself. Thus, for instance, it may be wrong to 
 admit oral testimony of the contents of a deed over objection, 
 and yet the wrong may not be available as error because no 
 motion for a new trial was made. The steps begin in the trial 
 court, 1 but continue into the appellate tribunal. 2 In rough out- 
 line these are the steps ordinarily required to make error avail- 
 able : i. An objection to the ruling, or a request, so made and 
 preferred as to bring before the trial court the specific questions 
 for decision. 2. A proper exception. 3. A motion presenting 
 the ruling to the trial court for review where a review is re- 
 quired. 3 4. Due reduction to record of rulings, objections, ex- 
 ceptions and facts. 5. A proper presentation of the case to 
 the appellate tribunal by record, pleadings and briefs. 
 
 § 625. Conduct of the Parties as affecting the right to make Error 
 Available — The statement that the conduct of a party may be 
 such as to exert an important, and, indeed, a controlling influ- 
 ence upon the right to make a wrong ruling available needs no 
 support from argument or authority, for it carries its own proof. 
 A party may, by conduct, waive a right of appeal or estop 
 
 1 The proper foundation for making J A failure to assign error or to ar- 
 
 error available must be laid in the trial gue errors assigned are instances of the 
 
 court by the appropriate request, mo- loss of a right in the appellate tribunal, 
 
 tion, or objections. See Requests and Points conceded below can not be made 
 
 Offers, Motions for Judgment and in- on appeal. Sullivan v. McMillan(Fla.), 
 
 cidental matters, Objections. See, also, 8So.Rep.450. See, generally, National, 
 
 Coleman v. Bell, 4 N. M. 46, 12 Pac. etc., Bank v. McConnell (Ala.), 9 So. 
 
 Rep. 657; Altmayer v. Metropolitan, Rep. 149; Snell v. De Land (111.), 27 N. 
 
 etc., Ry. Co., 14 N.Y. Supp. 311; Glass E. Rep. 1S3. 
 
 v. Wiles (Texas), 14 S. W. Rep. 225; s It is not all rulings that must be 
 Eaton v. Barnhill, 6S Miss. 305, 3 So. brought before the trial court for re- 
 Rep. 849; Wetzler v. Duffy, 7S Wis. view, but there are many rulings where 
 170, S. C. 12 Law. Rep. Anno. 178; this is necessary. As will be hereafter 
 McGraw V. Franklin, 2 Wash. 17,26 shown the general rule is that rulings 
 Pac. Rep.Sio; Halstead Lumber Co. v. in the conduct of the trial must be 
 Sutton (Kan.), 26 Pac. Rep. 444; Read- brought before the trial court for review 
 dy v. Shamokin, 137 Pa. St. 92, 20 Atl. in the appropriate mode. 
 Rep. 424; First Nat. Bank v. Holt, 87 
 Cal. 15S, 25 Pac. Rep. 272.
 
 IX Yli ED ERROR. 545 
 
 himself from prosecuting an appeal. 1 Upon the same general 
 and far reaching principle he may, by his conduct, place him- 
 self in such a position as to preclude him from taking advan- 
 tage of an erroneous ruling, although he may take the neces- 
 sary steps required to present the ruling for review and show 
 its character and influence. 2 
 
 § 626. Procuring an Erroneous Ruling — A party who expressly 
 asks that a designated ruling he made can not avail himself of 
 that ruling on appeal, although it may be material and may be 
 exhibited by the record. What a party expressly asks can not 
 be made available as error without a violation of the plainest 
 principles of the law. The rule we have stated is illustrated in 
 a variety of cases. Where a party asks the court to consolidate 
 cases, he can not complain of an order of consolidation made in 
 compliance with his request. 3 A party who invites incompe- 
 tent testimony by his own mode of examining a witness can not 
 be heard to aver that the testimony was erroneously admitted. 4 
 An instruction given at the request of a party can not be suc- 
 cessfully complained of by the party at whose request it was 
 given. •' 
 
 1 Ante, §§ 150, 2S9; Neel v. City of The case of Washington v. Louisville. 
 Toledo, 5 Ohio Cir. Ct. 203. We are etc.. 34 111. App. 658, S. C. on appeal 26 
 not. however, here directly concerned N. E. Rep. 653, supplies a striking illus- 
 with the general doctrine of waiver and tration of the doctrine that a party may 
 estoppel, but it is proper, as we sup- by his conduct preclude himself from 
 pose, to refer to the doctrine, inasmuch assailing the rulings of the trial court 
 as it is the major one and necessarily on appeal. 
 
 includes the minor. The subject we 3 Parker v. People, 13 Col. 155. 
 
 here propose to discuss is involved in * Musselman v. Mussulman, 44 Ind. 
 
 the greater doctrine, but it possesses 106; Reynolds v. State, 27 Neb. 90, S. 
 
 such peculiar characteristics that a C. 20 Am. St. 659. 
 
 special consideration seems necessary. 5 Pennsylvania Co. r. Roney, 89 Ind. 
 
 2 Bowen v. Carolina, etc., Co. (So. 453; Minot v. Mitchell, 30 Ind. 228; 
 Car.), 13 S. E. Rep. 421; Ellison v. Scott v. Board, 101 Ind. 42. citing 
 Rerick, 125 Ind. 396, 25 X. E. Rep. 454; Barker :■. Hobbs, 6 Ind. 385; Robertson 
 Lee v. Hassett, 39 Mo. App. 67; Fla- :•. Caldwell, 9 Ind. 514; Loomis v. 
 herty 7'. Miner, 33 N. Y. St. Rep. 68l, Wabash, etc., Co.. 17 Mo. App. 340; 
 25 N. E. Rep. 41S; Shinnabarger v. Leabo v. Goode, 67 Mo. 126; Noble :■. 
 Shelton, 41 Mo. App. 147; Hearman Blount, 77 Mo 235; Holmes v. Braide- 
 rs Owen, 42 Mo. App. 387; Payne V. wood, n: Mo. 610; Dennis :-. Maxfield, 
 Hardesty (Ky.), 14 S. W, Rep. 34S; 10 Allen, 138, Pareons :. Hedges, 15 
 Smith -'. Dittman, 11 N. Y. Supp. 769. Iowa, 119; Philadelphia, etc., Co. :■. 
 
 35
 
 546 ERROR IN JI DICIAL PROCEEDINGS. 
 
 § 627. Implied Invitation to Rule Erroneously — A ruling may be 
 impliedly requested by a party and if it is so requested he can 
 not, on appeal, take any advantage from the ruling. In cases 
 where there is only an implied invitation to make a particular 
 ruling, the difficulty is in determining the extent and effect of 
 the invitation, but where there is no uncertainty as to the effect 
 of the invitation, it is clear that no advantage can be taken of 
 the ruling made in response to the invitation. The doctrine 
 stated is tacitly, at least, enforced in the cases which hold that 
 a plaintiff can not complain that his own pleadings are defect- 
 ive. In all such cases there is an implied invitation to treat the 
 party's pleading as sufficient, and he is not in a situation to suc- 
 cessfully complain. 1 The admission of a fact in a pleading is 
 an implied invitation authorizing an assumption that evidence 
 of the admitted fact is unnecessary. 2 Submitting a case for de- 
 cision, without objection, implies that it is in a condition to be 
 decided, and that the questions involved are so presented that 
 the court may properly give judgment. 3 But this doctrine can 
 not be extended so far as to violate the fundamental rule that 
 consent can not confer jurisdiction of the general subject. A 
 party at whose instance a particular mode is pursued in appoint- 
 ing a referee can not successfully assert that the mode adopted 
 was erroneous. 1 If a party insists that evidence is competent, 
 he invites the court to so treat it, and the error in admitting it is 
 rendered unavailable by the invitation. 5 A defendant who pre- 
 
 Harper, 29 Md. 330; Territory v. Bur- generally, Roy v. Union Mercantile Co. 
 
 gess, 8 Mont. 57, igPac.Rep. 55S; Chi- (Wyo.), 26 Pac. Rep. 996; Newton v. 
 
 cago, etc., Co.-'. Snyder, 128 111. 655, 21 Newton, 46 Minn. 43, 48 N.W.Rep.450; 
 
 N. E. Rep. 520. In the early case of Wynn v. Central Park, etc., Co.. 14 N. 
 
 Prather v. Rambo, 1 Blackf. 1S9, the Y. Supp. 172; Parker v. Richolson, 
 
 court disposed of a specification of er- 46 Kan. 283. 26 Pac. Rep. 729. 
 
 ror upon the principle stated in the 3 Miller :•. Powers, iS Ind. 263; Dodge 
 
 text, and in doing so declared that a v. District Township, 17 la. 85; Elwell 
 
 party "has no right to complain of an v. Dodge, 33 Barb. 336. See, generally, 
 
 error or irregularity produced by his Davenport v. Alpin. 70 Mich. 192, 38 
 
 own act." N. W. Rep. 211; Heavnerv. Saeger, 79 
 
 1 Henderson v. Barbee, 6 Blackf. 26. Ga. 471, 4 S. E. Rep. 767. 
 
 2 Morrill v. Richey, iS N. H. 295; * Totten's Appeal, 40 Pa. St. 385. 
 Cook v. Farrah, 105 Mo. 492, 16 S. W. 5 Mitchell v. Monette, 37 Ala. 49. 
 Rep. 692; Holmes v. Fairbanks, 17 Wis. See /;/ re Bull, 14 Daly, 510, 2 N. Y. 
 434; Bird v. Lanius, 7 Ind. 615. See, Supp. 52.
 
 [NVITED ERROR. 547 
 
 vents explanations invites a ruling holding such explanations 
 improper and he can not complain that they were not made. 1 
 A partv who asks oral instructions can not successfully allege 
 as error that they were not reduced to writing. 1 ' Where a party 
 improperly requests and wrongfully obtains a change of venue 
 his invitation to order the change precludes him from success- 
 full v assigning error upon the order. 3 If one party asks in- 
 structions asserting a designated theory he can not complain 
 that the court gave similar instructions at the request of his 
 adversary. 1 It has been held that if a party asks an instruction 
 declaring that facts enumerated in it are immaterial, he will be 
 deemed to have invited the court to act upon the theory that 
 such facts exist. 5 Where a party moves for judgment upon the 
 theory that the questions presented were questions of law, he 
 can not successfully change position and allege that the ques- 
 tions were questions of fact. 6 The general doctrine that a party 
 can secure no advantage from an invited ruling is tacitly as- 
 serted in the cases which hold that a party who tenders an im- 
 material issue can not successfully complain because the court 
 tried the case upon the issue he tendered. 7 The common law 
 system of pleading recognized and enforced a rule, which, in 
 effect, was the same as that which we have here regarded as the 
 
 1 Claflin v. Farmers' Bank, etc., 36 559; Connoble v. Clark, 3S Mo. App. 
 Barb. 540. See, generally, Floyd v. 486; Bagley v. Grand Lodge, etc., 131 
 Floyd, 4 Rich (So. Car.), 23; Kelly v. 111. 49S, 22 N. E. Rep. 487. 
 
 Davis, 1 Head. (Tenn.) 71; Wilsons. 5 New Era Life Association tf.Weigle, 
 McAdams, 10 Iowa, 590. 12S Pa. St. 577, 18 Atl. Rep. 393. See, 
 
 2 State v. DeMoss, 98 Mo. 340, 11 S. upon the general subject, State In- 
 
 \V. Rep. 731. See, generally, Pledger v. v. Schreck, 27 Neb. 527, 43 N. W. Rep. 
 
 State, 77 Ga. 242, 3 S. E. Rep. 320; 340, S. C. 6 Lawyers Rep. Anno. 524; 
 
 Chicago, etc., Co. v. Snyder, 12S 111. Carpenter v. Wilmot, 24 Mo. App. 589; 
 
 655, 21 N. E. Rep. 520. Taylor v. Penquite, 35 Mo. App. 
 
 3 State v. Anderson, 96 Mo. 241, 9 S. Missouri Pacific R. Co. v. Schoennen, 
 \V. Rep. 636. 37 Mo. App. 612. 
 
 4 Shinnabarger v. Shelton, 41 Mo. 6 Sire V. Rumbold, n N. Y. Supp. 
 App. 147; Suarez v. Manhattan Ry. Co., 734. See, generally, Flaherty v. Minor, 
 60 Hun. 584, 15N.Y. Supp.222; Barker 123 N V . 382, 25 N. E. Rep.4iS; Strong 
 v. Livingston County Bank. 30 111. 591; v. Manufacturing Co., 6 Hun. 528; 1 ■ _ 
 Chapman v. Barnes, 29 111. App. 184. gett v. Hyde, 58 X. V. 272, 275; Koeh- 
 See, generally, Whitmore :•. Supreme ler v. Adler, 7S N. Y 2S7. 
 
 Lodge, etc.. 100 Mo. 36, 13 S. W. Rep. 7 O'Neal v. Wade, 3 Ind. 410. 
 495; Demetz :•. Benton, 35 Mo. App.
 
 548 ERROR IN JUDICIAL PROCEEDINGS. 
 
 rule interdicting parties from availing themselves of rulings pro- 
 duced bv their own act. Although the rule of the common law 
 was differently designated, it was in all essential particulars the 
 rule we have been discussing, for it denied to parties benefit from 
 erroneous rulings upon the pleadings brought about by their in- 
 vitation. The rule of the common law to which we refer is that 
 which denied the partv who committed the first fault in plead- 
 ing the right to complain that his adversary followed in the 
 erroneous direction marked out by him. 1 
 
 * G28. Opening the door to the Admission of Incompetent Evi- 
 dence — The principle that a party who impliedly invites a rul- 
 ing can not make the invited ruling available for the reversal 
 of a judgment finds, perhaps, its strongest manifestation in the 
 doctrine that a party who adduces evidence of a particular 
 class or character opens the door to his adversary for the ad- 
 mission of evidence of like kind and character. In adducing 
 such evidence there is an implied invitation to the court to rule 
 that the kind or class of evidence given is competent, and the 
 party who invites the ruling by his own conduct shuts out all 
 objections. He affirms, in effect, the competency of the evi- 
 dence and upon that affirmation secures its admission. He can 
 not escape the force and effect of his own conduct, for what he 
 requests, impliedly or expressly, he can not afterwards con- 
 demn. To permit a party to affirm at one time that testimony 
 is competent and at another that it is incompetent would vio- 
 late the principle prohibiting parties from occupying inconsist- 
 ent positions. The rule rests on solid principle and is required 
 by considerations of fairness and expediency. There is some 
 diversity of opinion as to the foundation upon which the rule 
 rests, and, indeed, some conflict as to the rule itself, but the 
 di-cided weight of authority supports the rule. 2 It is, however, 
 
 1 The rule under the code that a "bad State, 103 Ind. 101; Hobbs v. Board, 
 
 answer is good enough for a bail com- 116 Ind. 376; Nitche v. Earle, 117 Ind. 
 
 plaint" is taken from the common law, 270; Mosier v. Stoll, 119 Ind. 244, 261; 
 
 and it is really but the application of Perkins v. Hayward, 124 Ind. 445, 449. 
 
 the general doctrine of invited error. In Perkins v. Hayward, supra, the court 
 
 3 Lowe v. Ryan, 94 Ind. 450; Meran- said: "If a part}' opens the door to 
 
 da v. Spurlin, 100 Ind. 3S0; H in ton v. the admission of incompetent evidence 
 
 W'hittaker, 101 Ind. 344; Dinwiddie v. he is in no plight to complain that his
 
 INVITED ERROR. 
 
 549 
 
 to be kept in mind that the situation of the parties may exert 
 an important influence upon the question, for it is often true that 
 evidence is competent when offered by one party but incompe- 
 tent when offered by the other. The rule does not, of course, 
 apply where the position of the parties changes the character 
 of the evidence. It may not be amiss to say that the fact that 
 incompetent evidence is admitted does not so conclude the 
 court as to compel it to allow the incompetent evidence to be 
 continued, without limitation or restriction ; the rule, in truth, 
 operates upon the parties rather than upon the court. 
 
 § 629. Admission of Incompetent Evidence— Effect npon the Party 
 who Introduces it — A party who introduces incompetent evidence 
 does so at the peril of injury to himself, since he may, by the 
 introduction of such evidence, cut himself oft* from giving other 
 evidence to explain or confirm it. 1 A party may open the door 
 for his adversary and preclude himself from having it shut 
 against his adversary, but he can not insist that the door shall 
 be kept open for his benefit because it was once opened at his 
 instance. 2 His position is very different from that of his op- 
 adversary followed through the door " It would be strange if the appellants 
 thus opened." The rule was thus stated could use such work to establish the 
 in Lowe v. Ryan, supra: "Appellant question of ecclesiastical law or church 
 first sought and took the opinion of his law deemed favorable to him, and could, 
 witnesses as to whether or not the mar- at the same time, dispute its use by the 
 ket value of his lands would be increased appellees upon questions favorable to 
 or diminished by the proposed highway, them. This he can not do." To sub- 
 Having done so he is not in a position stantially the same effect are the cases 
 to ask a reversal of the judgment be- of Ward v. Washington Ins. Co., 6 
 cause his adversaries were allowed to Bosw. 229; Holten v. Holten, 5 Weekly 
 meet his case with like opinion from Dig. 14. See, also, Glover v. Stephen- 
 their witnesses." In Dinwiddie v. State, son, 126 Ind. ^2\ Minton v. Under- 
 supra, the court said: " It is settled by wood, etc., Co., 79 Wis. 646, 4S N. W. 
 the adjudications of this court that a Rep. 857; Little Rock, etc.,Co. v. Tank- 
 party can not make available for a re- ersly (Ark.), 14 S. W. Rep. 1099; In- 
 versal of a judgment the exclusion of gram v. Wackernagel (Iowa), 4S N.W. 
 
 evidence where, upon his objection, like 
 evidence was excluded when offered by 
 the other party." In Gafl w.Greer,88 
 Ind. 122, 12S, one of the parties read 
 from a book and the other also read 
 from the same book, and it was held 
 that he was not in a position to suc- 
 cessfully complain, the court saying: 
 
 Rep. 99S; Jackson v. State, 28 Texas 
 App. 143, 16 S. W. Rep. 247; McGraw 
 v. Franklin, 2 Wash. 17, 25 Pac. Rep. 
 911, S. C. 26 Pac. Rep. Sio. 
 
 1 Trenton Mutual Life & Fire Ins. 
 Co. v. Johnson, 24 X.J. L. 576; Brand 
 v. Longstreet, 1 South (N. J.), 325. 
 
 2 Lyons v. Teal, 28 La. Ann. 592.
 
 550 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ponent, and he can not successfully demand to be allowed to 
 continue to violate the rules of evidence. 1 
 
 § 630. The doctrine of Invited Error is founded on the principle 
 of Kstoppel — The rule that a party can not successfully assail a 
 decision given upon his express or implied invitation is really 
 nothing more than an application of the general principle that 
 parties will be held to the theories they present and upon which 
 they secure action by the court. 2 The foundation principle of 
 the whole doctrine is the principle of estoppel. In all the 
 various forms in which the rule confining parties to the theories 
 asserted 3 has been applied there is some element of estoppel, 
 not, of course, precisely such an element as is present in cases 
 concerning property rights, but one very closely resembling it. 
 Thus, in a case where parties invite the court to treat the ques- 
 tions which control the case as questions of law and not of fact, 
 there is a representation that the questions are questions of law, 
 and it is but applying the principle of estoppel to refuse to per- 
 mit the representation to be withdrawn ; 4 the same principle is 
 asserted in the cases which hold that where a party insists that 
 a contract is to be construed in a particular way, he can not 
 
 1 If, however, incompetent evidence the exceptor's objection this evidence 
 is admitted without objection and it was excluded. This having occurred, 
 sustains the rinding or verdict, the and the excluded evidence thereby fail- 
 judgment will not be reversed. Graves ing to form a part of that reserved in 
 
 State, 121 Ind. 357; Taylor v. State the record, the exceptor is plainly es- 
 (liul.), 29 N. E. Rep.415; Stockwell v . topped from contending that the re- 
 State, 101 Ind. 1; Riehl v. Evansville ceiver failed to prove the facts rejected 
 Foundry Association, 104 Ind. 70; Yea- at his own instance. Bigelow on Es-~ 
 
 . Wright, 112 Ind. 230; McFadden toppel (5th ed.), 720." 
 
 v. Fritz, no Ind. 1, 5; Indiana, etc., Co. 8 Ante, "Holding Parties to Trial 
 
 v.Finnell, 116 Ind. 414, 422. See Rob- Court Theories," Chapter XXIV. 
 
 tits v. Graham, 6 Wall. 578; Doyle v. * Dillon v. Cockcroft, 90 N. Y. 649; 
 
 Mulren, 7 Abb. Pr. R. (N. S.), 258; Trustees of East Hampton v. Kirk, 68 
 
 Belknap v. Sealey, 14 N. Y. 143; Shall N. Y. 459, 464; Winchell v. Hicks. iS 
 
 - Lathrop, 3 Hill. 237; Pike v. Evans, N. Y. 558; O'Neill v. Jones, 43 N. Y. 
 
 i, Johns. 210. 84; Ormes v. Dauchv, S2 N. Y. 443, S. 
 
 * In the case of Greeley v. Provident C. 37 Am. Rep. 5S3; Republic Life 
 
 Savings Bank, 103 Mo. 212, 221, it was Insurance Co. v. Swigcrt (111.), 25 N. E. 
 
 said: "Besides, in this case, the re- Rep. 6S0, 12 Lawyers Rep. Anno. 328; 
 
 ceiver's counsel offered competent evi- San Diego Land, etc., Co. v. Neabe. 78 
 
 dence to prove the fact in dispute, to Cal. So, 11 Lawyers Rep. Anno. 604; 
 
 wit, the receiver's compensation, but on Crabs V. Mickle, 5 Ind. 145.
 
 I'. VITED ERROR. 
 
 551 
 
 successfully complain that the court adopted the construction 
 he requested. 1 The principle is enforced in the cases which 
 hold parties to the construction placed by them on the plead- 
 ings.- It is also enforced in the cases which hold that where a 
 party asserts that a definite theory of the law is applicable to 
 the evidence, he will not be permitted to withdraw his assertion 
 and assume a different position. 3 Where a party objects to the 
 introduction of primary evidence, and his objection has the ef- 
 fect of procuring the introduction of secondary evidence, he 
 will not be heard to allege on appeal that the trial court erred 
 in admitting the secondary evidence. 4 In one of the reported 
 cases the doctrine was carried very far, for it was held that if a 
 party secures the exclusion of evidence he can not successfully 
 urge upon appeal the point that for want of the very evidence 
 which he procured the court to reject, the judgment can not be 
 sustained. 5 Another case, much the same as that referred to, 
 asserts, even in stronger terms, a similar doctrine. 6 The doc- 
 
 1 Hodges :•. Rowing, 58 Conn. 12, S. 
 C. 7 Lawyers Rep. Anno. 87. 
 
 2 Daniels z\ Brodie, 54 Ark. 216, 15 
 S.W. Rep. 4^7, n Law. Rep. Anno. Si. 
 
 3 Graham :•. Nowlin, 54 Ind. 3S9. 
 
 4 Larey v. Baker, 85 Ga. 6S7, 11 S. E. 
 Rep. 800, S02. In the case cited the court 
 said: " We think the court was wrong 
 in admitting the record from the clerk's 
 office and rejecting the original home- 
 stead papers. He should have admitted 
 the original papers and rejected those 
 from the clerk's office as w as decided 
 bv this court in the case of Brown v. 
 Driggers, 60 Ga. 114. But, as the error 
 was caused by Baker objecting to the 
 original homestead papers lie ought not 
 to be allowed to take advantage of it. 
 lie can not take a benefit from his own 
 wrong." 
 
 6 Jobbins v. Gray, 34 111. App. 20S, 
 219. The court said in the case referred 
 to: "Appellant can not be allowed to 
 procure an erroneous ruling in bis favor 
 and exclude competent and material 
 evidence on the trial when it is Offered 
 
 and ready to be produced, and then on 
 appeal insist that, for want of that very 
 proof, the decree can not be sustained. 
 A party will never be allowed to so 
 take advantage of his own wrong, or 
 the errors of the court induced on his 
 own motion, and then compel the op 
 posite party to suffer the consequences. 
 Such a proceeding would be the merest 
 trilling with the court."' 
 
 6 Insurance Co. of Pennsylvania v. 
 O'Connell. 34 111. App. 357, 362. The 
 court, in the case cited, thus expressed 
 its decision: "It comes in poor grace 
 and entirely too late from appellant, to 
 now insist that the verdict was not sup- 
 ported bv the evidence, when the ap- 
 pellee was ready and anxious to make 
 full and complete proof, so as to fasten 
 liability on the appellant, and vet was 
 prevented from so doing by the court, 
 on the motion or objection of appellant. 
 A party will not be permitted to thus 
 force error into the record and then 
 himself take advantage of it on appeal."
 
 552 ERROR IN JUDICIAL PROCEEDINGS. 
 
 trine asserted by the cases to which we have referred is a whole- 
 some one, inasmuch as it tends to make parties cautious in in- 
 terposing objections. It is founded on solid principle. It rests 
 on the long established rule that a party who makes a repre- 
 sentation by words or conduct will not be allowed to withdraw 
 ' it to the prejudice of another who has rightfully acted upon it.
 
 CHAPTER IV. 
 
 II A R M L ESS ERROR 
 
 $ 631. 
 
 632. 
 6 33- 
 
 6 34- 
 
 6 35- 
 636. 
 
 637- 
 63S. 
 
 639' 
 
 640. 
 641. 
 
 642. 
 
 Difference between decisions af- § 643. 
 fecting primary rights and de- 
 cisions affecting procedure. 
 
 Error without prejudice. 644. 
 
 Right result reached by wrong 
 mode. 645. 
 
 Limitations of the rule that there 
 is no available error where a 
 right result is reached. 646. 
 
 Uninfluential error. 
 
 Nominal damages — Failure to 647. 
 assess. 648. 
 
 Rulings on demurrer. 
 
 Resorting to the evidence to 649. 
 avoid the effect of a wrong 
 ruling upon demurrer. 
 
 Rulings on motions to strike out 650. 
 or reject pleadings. ' 651. 
 
 Pleadings defective in form. 
 
 Rulings in admitting and ex- 
 cluding evidence. 652. 
 
 Instructions — What errors are 
 in general regarded as unin- 
 fluential. 
 
 Verdict clearly right on the ev- 
 idence, erroneous instructions 
 harmless. 
 
 Instructions — Verbal inaccura- 
 cies. 
 
 Erroneous instructions are gen- 
 erally harmless where there is 
 a special verdict. 
 
 Equity cases — General instruc- 
 tions unnecessary. 
 
 Incomplete instructions. 
 
 Instructions — Construction of 
 on appeal. 
 
 Erroneous rulings in selecting 
 and impaneling the jury often 
 harmless. 
 
 Misconduct of jurors. 
 
 Special interrogatories to jury — 
 What rulings are harmless, 
 although erroneous. 
 
 Erroneous rulings upon ver- 
 dicts that are regarded as 
 harmless. 
 
 § 631. Difference between Decisions affecting Primary Rights and 
 Decisions affecting Procedure — In order to obtain a clear and ad- 
 equate conception of the meaning of the term " harmless errors," 
 it is necessary to mark the difference between decisions affect- 
 ing primary or fundamental rights and decisions affecting rights 
 which exist by virtue of rules established for the conduct and 
 regulation of matters of procedure. The difference exists and 
 is important. A primary right is violated when a recovery is 
 denied in a case where there is a meritorious cause of action 
 well presented, as, for instance, where a party shows a valid 
 contract, full performance and damages ; a remedial right is 
 
 (553)
 
 554 ERROR IN JUDICIAL PROCEEDINGS. 
 
 violated where some rule of procedure is disregarded, as, for 
 instance, where a court refuses to instruct in writing when 
 properly requested. The one class of decisions affects directly 
 the primary right while the decisions of the other class, while 
 they may indirectly affect the primary right, do not necessarily 
 do so, but do directly affect the remedy. Thus, a decision that 
 a recovery can be had upon a contract where there has been 
 no performance affects the primary right directly, while a de- 
 cision admitting parol evidence where only written evidence is 
 competent, directly violates a rule of evidence, but indirectly 
 violates a primary right. A wrong decision is, as a rule, preju- 
 dicial where it impairs a primary right or denies a remedy for 
 such a right, but where the wrong decision affects mere matters 
 of procedure and does not impair a primary right nor deny or 
 abridge a remedy, it is in many cases, but not in all, regarded 
 as a harmless error. But not all errors in matters of procedure 
 can be regarded as harmless, for parties have a right to a judi- 
 cial hearing and judgment according to the established rules 
 of law. It is enough to say now that harmless errors are gen- 
 erally such as concern matters of procedure, while errors affect- 
 ing the primary right are generally prejudicial. 
 
 § 632. Error without Prejudice — An error without prejudice is 
 always a harmless error. 1 The general statement we have 
 made is undoubtedly correct ; it is, indeed, self-evident, and it 
 may be extended by adding that the record must be so made 
 up as to authorize the inference that the error was prejudicial 
 
 1 De Johnson v. Sepulbeda, 5 Cal. Gross v. Haislev (Ind. App. Ct.), 2S N. 
 
 149; Fulmer v. Fulmer, 22 Iowa, 230; E. Rep. 123; Mansfield v. Shipp, 12S 
 
 Ealer -•. Freret, 11 La. Ann 455; Bos- Ind. 55, 27 N. E. Rep. 427; Nixon v. 
 
 ley v. Chesapeake Ins. Co., 3 Gill. & J. Campbell, 106 Ind. 47; Davis v. Reamer, 
 
 450; Orth v. Dorschlein, 32 Mo. 366; 105 Ind. 31S; Leary v. Moran, 106 Ind. 
 
 Greenough v. Shelden, 9 Iowa, 503; 560; Union Mutual Life Ins. Co. v. Bu- 
 
 Woodward v. Horst, 10 Iowa, 120; Oli- chanan, 100 Ind. 63; McGeer. State, 103 
 
 ver v. Depew, 14 Iowa, 490; Willis v. Ind. 444; Louisville, etc., Co. v. Thomp- 
 
 Chambers, S Texas, 150; Indianapolis, son, 107 Ind. 442; New v. New, 127 Ind. 
 
 etc., Co. 7-. Smythe, 45 Ind. 322; Lynch 576; Stefani v. State, 124 Ind. 3; Proo- 
 
 v. Lcurs, 30 Ind. 411; Morse v. Morse, tus v. Holmes, 33 111. App. 312; Kelsey 
 
 25 Ind. 156; Starr v. Hunt, 25 Ind. 313; v. Cooky. 58 Hun. 601. 11 N. Y. Supp. 
 
 Cincinnati, etc., Co. v. Rodders, 24 Ind. 745; Herbert v. City of North Hamp- 
 
 103; Hubble v. Wright, 23 Ind. 322; ton, 152 Mass. 2C16. 25 N. E. Rep. 467; 
 
 Fankboner :■. Far.kboner, 20 ind. 62: Waarich v. Winter, 33 111. App. 36.
 
 HARMLESS ERROR. 555 
 
 or was probably prejudicial. 1 The difficulty lies in the applica- 
 tion of the general rule. Some of the cases assert that where 
 the record shows error the court must presume injury, 2 but this 
 statement is too broad. We suppose that whether an error is 
 or is not prejudicial may always be determined as a matter of 
 inference from the record, and that, while it can hardly be said 
 that there is a general rule for determining whether an error is 
 or is not prejudicial, it may, nevertheless, be safely said that 
 there must be enough in the record to overcome the presump- 
 tion that no wrong was done by the trial court and to fairly and 
 reasonably warrant the inference that the wrong ruling was. at 
 least, probably prejudicial. It is undoubtedly true that there may 
 be cases where the record shows that the materiality of the ruling- 
 is such as to authorize the inference that injury resulted, and 
 where this is so the error can not be regarded as harmless. 
 This is often true with respect to the admission of incompetent 
 evidence, for the reason that the appellate tribunal can not say 
 in all cases whether the incompetent evidence did not influence 
 the jury. 3 There may be many witnesses against one, and yet 
 the testimony of the one may carry conviction, so that if he is 
 not a competent witness there is in the one case prejudicial 
 error in excluding him, in the other there is prejudicial error in 
 allowing him to testify. While it is true that prejudice must 
 
 x Ante, §§ 593,594. prejudicial, it will be so held unless 
 2 Morrison r. Judge, 1 j Ala. 1S2; Ex some other record recital overcomes 
 farte Keenan, 21 Ala. 55S; Thomas v. the inference. The courts that de- 
 De Gaffenreid, i- t Ala 651; Buford v. cided the cases to which we have re- 
 Gould, 35 Ala. 265, Jackson v. Feather ferred assert as strongly as any others 
 River, etc., Co. 14 Cal. iS; Norwood v. that error is not presumed to be preju- 
 Kenfield, 30 Cal. 393; State v. Patton, dicial, but must be affirmatively shown 
 13 Ired. L. 421; Wiley v. Givens, 6 to be prejudicial. Neither these courts, 
 Gratt. (Va.) 277; Kepler V. Conkling. however, nor any other.-, hold that the 
 89 Ind. 392. The statements of the prejudicial nature of the wrong ruling 
 court in the cases referred to must be must be shown by express recitals or 
 taken, as the long settled rule requires, direct statement-. 
 
 with reference to the facts and the 3 Wiseman :■. Wiseman. 73 Ind. 112, 
 record of the particular case in which 116; Peterson :■. Hutchinson, 30 Ind. 
 the statements were made, and when 3S; Morgan v. State. 31 Ind. 193; Belie- 
 thus taken it is evident that they mean fontaine R. R. Co. v. Hunter. 33 Ind. 
 no more than that where there is 335; Thompson v. Thompson, 34 Ind. 
 enough in the record to'justify the in- 94; King v. Enterprise Ins. Co., 45 Ind. 
 ference that the wrong ruling was 43; Carpentier v. Thurst, 30 Cal. 123.
 
 556 
 
 ERROR INJUDICIAL PROCEEDINGS. 
 
 directly or inferentially appear from the record, it is also true 
 that if the wrong ruling appears to affect a material point ad- 
 versely to the part)' complaining, the appellate tribunal will not, 
 as a general rule, inquire specifically as to the extent of the prej- 
 udice. 1 The rule that where there is no prejudice the errors are 
 harmless applies, of course, to rulings that benefit the complain- 
 ing party, however full of error they may be. 2 Thus, a party 
 can not object to a judgment rendered in his own favor upon a 
 defective process against the adverse party, 3 nor upon instruc- 
 tions in his own favor, nor for a failure to assess all the dam- 
 ages against him to which his adversary was entitled, nor to a 
 refusal to admit evidence injurious to the opposite party and 
 favorable to him. Cases too numerous to warrant citation sup- 
 port the propositions just stated. The rule that error which is 
 without prejudice is not available precludes a party not injured 
 from making available errors committed against other parties. 4 
 
 1 Greene v. White, 37 N. Y. 405; 
 Union Bank v. Mott, 39 Barb. 180. In 
 the case first cited the court referred to 
 the cases of Thacher v. Jones, 31 Me. 
 528; Lane f. Crombie, 12 Pick. 177; 
 Clark 7'. Dutcher, 9 Cow. 674; Camden, 
 etc., Co. v. Belknap, 21 Wend. 354; 
 People v. Wiley, 3 Hill, 194. It was 
 said in the course of the opinion that, 
 "It is not for the defendant to show 
 how or to what extent he was preju- 
 diced. The existence of the error es- 
 tablishes the claim to relief. If the 
 plaintiffs wish to sustain the verdict it 
 is for them to show that the error did 
 not and could not have affected it." In 
 the case from which we have quoted 
 the court had under consideration an 
 instruction upon a material point, and 
 as to such a case the language of the 
 court is, perhaps, not too strong, but the 
 language employed can not be regarded 
 as stating the general rule with entire 
 accuracy, inasmuch as it indicates that 
 the rule is much broader than it can 
 be justly considered to be. 
 
 a Barker v. 1 lobbs, 6 Ind. 3S5; Fischer 
 v. Holmes, 123 Ind. 525; Robertson v. 
 
 Caldwell, 9 Ind. 514; Gaven v. Dop- 
 man, 5 Cal. 342; Winona, etc.. Co. v. 
 Denman, 10 Minn. 267; Smith v. Will- 
 iams, 22 111. 357; Lee v. Merrick, 8 
 Wis. 229; Mooney v. Hough, 84 Ala. 
 80, 4 So. Rep. 19; Wright v. State, 78 
 Ga. 102, 2 S. E. Rep. 693; Hill v. Fini- 
 gan, 77 Cal. 267, 19 Pac. Rep. 494; 
 Miles v. Wikel, 74 Iowa, 712, 39 N. 
 W. Rep. 95; Hammond v. Pinkham, 149 
 Mass. 356, 21 N.E.Rep.S7i; Vickers v. 
 Leigh, 104 N. C. 248, 10 S. E. Rep. 
 308; Northern Pacific, etc., Co. v. 
 Holmes, 3 Wash. Ty. 543, 18 Pac. Rep. 
 76; Kirchcr v. Milwaukee, etc., Co., 74 
 Wis. 470, 43 N. W. Rep. 4S7; Dick v. 
 Williams, 130 Pa. St. 41, 18 Atl. Rep. 
 615; State v. Jackson, 32 So. Car. 27, 
 10 S. E. Rep. 769; Treadwell v . Whit- 
 tier, So Cal. 575, S. C. 13 Am. St. Rep. 
 
 175- 
 
 3 Cunningham v. Smithson, 12 Leign 
 (Va.), 32. 
 
 4 Westcotta. Huff, 18 Ind. 245; Wiley 
 v- Coovert, 127 Ind. 559; Duesterberg v. 
 Swartzel, 115 Ind. 180, 17 N. E. Rep. 
 165; Herman v. McBurney, 66 Ala. 51; 
 Seward v. Malotte, 1^ Cal. 304; Hohen-
 
 HARMLESS ERROR. 
 
 It is no cause for complaint on the part of one defendant that 
 a judgment was erroneously rendered against another defend- 
 ant, or that some other defendant was released by the judgment 
 where no injury was done him by such release. 1 
 
 § G33. Right Result reached by Wrong Mode— The statement in 
 the opening paragraph of the present chapter that harmless 
 errors are generally found in rulings affecting mere matters of 
 procedure is confirmed and illustrated by the cases which 
 assert the doctrine that where a right result is reached errors 
 in the mode pursued in reaching it are generally harmless ones. 2 
 Errors not affecting the final result in cases where the record 
 proper affirmatively shows it to be right may be deemed unin- 
 fluential and hence may be regarded as harmless. The doc- 
 trine that a wrong ruling affecting the procedure is a harmless 
 error where a right result is reached has been applied in many 
 cases. One class is represented by the cases which hold that 
 where an objection is taken by a motion when a demurrer 
 would be appropriate, the substitution of the one mode of pro- 
 cedure for the other is a harmless error if the result reached is 
 clearly right. 3 Another class is represented by the cases which 
 
 thai v. Watson, 2S Mo. 360; Knox v. suit is reached errors in the mode pur- 
 Cleveland, 13 Wis. 245; Eyre v- Cook, sued are ordinarily regarded as harm- 
 9 Iowa, 185; Warner v. Whittaker, 6 less is closely allied to the doctrine that 
 Mich. 133; Schiffer v- Adams, 13 Col. intermediate errors may be deemed 
 572, 22 Pac. Rep. 964; H. G. OldsWagon harmless if the final judgment or decree 
 Works v. Combs. 12 | Ind. 62, 24 N. E. is right. {Ante, § 590.) It is. indeed, as 
 Rep. 589; Stribling v. Splint Coal Co., a close analysis will show, at bottom, 
 31 W. Va. S2, 5 S. E. Rep. 321; Kraft- little else than a phase of that general 
 Holmes, etc., Co. v. Crow, 36 Mo. App. doctrine. 
 
 28S; Kansas City, etc., Co. v. Doggett, 3 Holcraft v. King, 25 Ind. 352. y^\ 
 
 67 Miss. 44, 7 So. Rep. 278. Lane v. State, 27 Ind. 10S, 113. In 
 
 1 Ahem v. McGeary, 79 Cal. 250, 21 Holcraft v. King, supra, it was said: 
 
 Pac. Rep. 540; Dickerson v. Chrisman, "The objection was not properly taken 
 
 2S Mo. 134; Garner v. Beauchamp, 20 by demurrer, but a proper result having 
 
 Mo. 318; Mann v. Lewis. 13 W. Va. been attained by the decision of the 
 
 215; Wardv. Kalfleish, 21 How.Pr.283. court, the case should not be reversed 
 
 See, generally. Elkin v. Gregory, 30 So. for an error of the court in the mode in 
 
 Car. 422, 9 S. E. Rep. 335; Sellers v. which it was effected." Very similar 
 
 Foster, 27 Neb. 1, 42 N. W. Rep. 907; language was used in Lane v. State, 
 
 Ingram v. State, 24 Neb. 33, 37 N. W. supra: "A proper result haying been 
 
 Rep. 943. readied by the demurrer, we can not," 
 
 1 The doctrine that where a right re- it was said by the court, "reverse the
 
 r>:>H 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 liold that where a right result is reached the error in trying the 
 case upon pleadings where pleadings are inappropriate is harm- 
 less. 1 Still another class is represented by the cases which 
 hold that where the trial court strikes out a motion when the 
 appropriate procedure is to overrule it, the error in the mode 
 pursued is not sufficient to reverse the judgment. 2 The doctrine 
 lias been applied to the proceedings of statutory tribunals, and 
 their decisions have been upheld, although the mode of pro- 
 cedure adopted was erroneous. 3 A strong, and, perhaps, an 
 unsafe extension of the rule is made by the cases wherein it is 
 held that, although it is erroneous to submit to the jury a writ- 
 ten contract for construction the error is not available if it ap- 
 pears that the jury gave a correct construction to the contract. 4 
 In another case it was held harmless error to submit a question 
 
 judgment merely because it was not at- 
 tained in a different mode." In Mc- 
 Grew v. McCarty, 7S Ind. 496, the 
 court said: "The proper practice would 
 have been to demur to the complaint. 
 Where there is no personal liability and 
 the entire right of action depends upon 
 the validity of the lien, which affirma- 
 tively appears tc be invalid, the proper 
 practice is to demur. Lawton v. Case, 
 73 Ind. 60. But where a right result is 
 reached, no harm is done, although an 
 inappropriate remedy is adopted. Judg- 
 ments are not reversed because of harm- 
 less errors." 
 
 1 Gray v- Robinson, 90 Ind. 527, 532, 
 citing Bales v. Brown, 57 Ind. 282. In 
 the case first named it was said: "But 
 the controversy was heard and deter- 
 mined upon the evidence. In such a 
 case the pleadings and rulings thereon 
 are harmless. When a correct result 
 is leached a cause will not be reversed 
 for an error in the mode of reaching it." 
 
 2 Matthews v- Droud, 114 Ind. 268, 
 271; Logan v. Kiser, 25 Ind. 393. In 
 the case first cited the court said: " The 
 striking out of the motion for a venire 
 
 de novo was not the proper method of 
 disposing of that motion, but as a right 
 result was reached, a mistake in the 
 mode of reaching it is not available er- 
 ror." 
 
 3 Neptune v. Taylor, 10S Ind. 459, 561 ; 
 City of Logansport v. Shirk (Ind.), 2S 
 N. E. Rep. 538, 541. In the case last 
 cited it was said: "The proper con- 
 clusion was reached and judgment ren- 
 dered under the facts disclosed by the 
 record, and it is immaterial by what 
 method it is arrived at. The proper 
 conclusion having been reached the 
 judgment will not be reversed." 
 
 4 Martineau v. Steele, 14 Wis. (2d ed.) 
 295, 300. In the case cited the court 
 said: "We suppose there can be no 
 doubt that it was the duty of the county 
 court to construe the written agreement 
 instead of leaving the question of its 
 proper construction to the jury. The 
 jury, however, placed the true construc- 
 tion upon the writing — the one which 
 the court should have placed upon it, 
 and therefore this error becomes imma- 
 terial, since it could not have prejudiced 
 the appellant."
 
 HARMLESS l.KK ok. 55»J 
 
 of law to the jury for decision, for the reason that the jury cor- 
 rectly decided the question and a right result was reached. 1 
 
 § 634. Limitations of the Rule that there is no Available Error 
 where a Right Result is reached— It must, as we suppose, be true 
 that the rule stated in the preceding paragraph is not entirely 
 without limitation. It seems quite clear that there may be 
 cases where a right result is reached, but errors in the mode of 
 reaching it may be so grave as to be regarded as prejudicial. 
 If, for instance, the court should deny a jury trial in a case 
 where the party was entitled to it, the ruling would, as a gen- 
 eral rule, be available as error even though the appellate tri- 
 bunal might be satisfied that the trial court reached the proper 
 conclusion and rendered the appropriate judgment. It seems, 
 also, that there may be cases where there is such a clear and 
 wide departure from the established rules of evidence that the 
 judgment must fall, although it appears to be right. If there 
 are no limitations upon the rule that a right result makes harm- 
 less all intermediate rulings the consequence must be that there 
 may be cases wherein a party is denied a right to have his 
 cause tried and determined as the law directs. The general rule, 
 however, is well established and is a strong one, so that a party 
 who attempts to escape its force must make a very clear case. 
 
 § 635. Uninfluential Error — There may be a wrong ruling and 
 no available error, for the reason that the ruling may have no 
 influence upon the substantial rights of the party who makes 
 complaint.- It is difficult, if not impossible, to accurately lay 
 
 1 Consolidated Coal Co. v. Schacfer the judgment." For other decisions 
 (111.), 25 N. E. Rep. 7SS. The court, in upon the general subject, see Hunter v. 
 the case cited, conceded that the in- Harris, 24 111. App. 637; Ochs v. Peo- 
 struction did submit a question of law pie, 124 111. 399; Marvin v- Universal, 
 to the jury, but held the error not avail- etc.. Co., S5 N. Y. 27 s . 
 able, saying: "But as the jury gave a 2 Holmes v. Fairbank, 17 Wis. 434; 
 correct answer to the question pro- Menk v. Steinfort, 3g Wis, 370; Alex- 
 pounded to them, and rendered a verdict andero. Oshkosh,33 Wis. 277; Alkan v. 
 that was just and right under the law New Hampshire, etc., Co., 53 Wis. 136; 
 and the evidence, it is not perceived Gready v. Ready. 40 Wis. 47S; Gallo- 
 that the action of the court in this re- way v. Week, 54 Wis. 604. See. gen- 
 gard affords good ground for reversing erally. Smith p. Eaton, 50 Iowa, 4SS:
 
 -,;,, ERROR IN JUDICIAL PROCEEDINGS. 
 
 down any general rule for determining when the wrong ruling 
 can be considered so influential as to constitute available error. 
 It may, however, be said that where it appears from the record 
 that there was no right which could be impaired or destroyed 
 by the ruling it may be regarded as destitute of influence, al- 
 though it may be radically erroneous. Thus, a wrong ruling 
 on an entirely immaterial issue is generally uninfluential. 1 So 
 where a party obtains all he is entitled to receive the error is 
 without influence. 2 The same general doctrine prevails where 
 damages are assessed upon the wrong theory and include im- 
 proper items, but, in the aggregate, the recovery awarded is no 
 more than that to which the successful party was rightfully en- 
 titled. 3 The general doctrine applies to a case wherein the 
 only issue is as to the title to personal property and an errone- 
 ous ruling is made concerning the value of the property in con- 
 troversy. 4 It may be observed of the case last referred to that 
 the ground upon which it proceeds is that the only ruling that 
 could be influential would be one affecting the only controverted 
 point, namely, the title to the property in dispute. A case in- 
 volving the title to property falls under the general rule that 
 uninfluential errors are harmless where it appears that the party 
 who complains has no interest in the property disposed of by 
 the judgment or decree. 5 What errors shall or shall not be 
 deemed influential, must, we may say in conclusion, be deter- 
 mined upon the facts and record in the particular case, for it is 
 not possible to formulate a general rule for determining what 
 errors are influential and what are without influence. 
 
 Dawson v. Wisner, n Iowa, 6; Granger W. Rep. 29. See, upon the general 
 
 v. Buzick, 3 G. Greene (Iowa), 570; subject, Allen v. Commonwealth (Ky.), 
 
 Cooper v. Mills County, 69 Iowa, 350; 12 S. W. Rep. 582; State v. Bruder, 35 
 
 Heckle v. Grewe, 125 111. 58, 61; Frank- Mo. App.475; Allen w.Etheridge, 84 Ga. 
 
 fort Bridge Co. v. Williams, 9 Dana, 550, 11 S. E. Rep. 136. 
 
 403, 35 Am. Dec. 155; Ward v. Ringo, * Foster v. Berkley, 8 Minn. 351. 
 
 2 Texas, 420, S. C. 47 Am. Dec. 654. 5 Case v. Kelly, 133 U. S. 21. See, 
 
 1 Dabbs v. Dabbs, 27 Ala. 646; Dress- generally, Ailing v. Wenzel, 133 111. 264, 
 lcr v. Davis, 7 Wis. 527; Thompson v. 24 N. E. Rep. 551; Gage v. DuPuy, 132 
 Lyon, 14 Cal. 39. 111. 134. 24 N - E - Rc P- S66 ; Telford v. 
 
 2 Denny v. Moore, 13 Ind. 418. Garrels, 132 111. 550, 24 N. E. Rep. 573; 
 
 3 Mood v. Knox. 8 La. Ann. 73; Harrington v. Sedalia, 9S Mo. 583, 12 
 Stevens v. Wolf, 77 Texas. 215, 14 S. S. W. Rep. 342.
 
 HARMLESS ERROR 561 
 
 § 636. Nominal Damages— Failure to Assess— The doctrine run- 
 ning throughout the adjudged cases is that a wrong ruling is 
 not available as error unless it does harm in a material degree 
 to the substantial rights of the complaining party. It is not 
 enough that there is harm, it must be so important as to merit 
 the consideration of the appellate tribunal and to take some- 
 thing of more than nominal value from the party who alleges 
 error. It is upon this principle that it is held that the failure 
 to assess nominal damages may be placed in the category of 
 harmless errors. 1 But there may be cases where a right of im- 
 portance is to be vindicated by the assessment of nominal dam- 
 ages, and where this is so the failure to assess nominal dam- 
 ages may be prejudicial, not, indeed, because of the amount 
 involved but because of the right which requires vindication 
 and establishment. Thus, where a party sues to prevent the 
 wrongful seizure and occupancy of his land, or to prevent the 
 destruction of his right in a highway, there may be more than 
 harmless error in a ruling denying the recovery of nominal 
 damages. 2 The reason of the rule that there mav be preiudi- 
 cial error in some cases where there is apparently nothing more 
 than a wrong ruling affecting the right to nominal damages, is 
 that the right which the damages represent may be lost unless 
 damages are assessed. 3 This principle is illustrated in cases 
 where it is necessary for a party to bring an action and recover 
 in order to prevent a claim from ripening into a right by long 
 continued possession or use. The members of the class of 
 cases under immediate mention form, however, exceptions to 
 the general rule, for that rule is that where there is a ruling 
 affecting only the right to nominal damages, the ruling, though 
 wrong, is assigned a place in the general class denominated 
 harmless errors. 
 
 1 Mahonev v. Robbins, 49 Ind. 146; v. Haven. 65 Iowa. 359; Norman z. 
 
 Estep v. Estep, 23 Ind. 114; Hacker v. Winch, 65 Iowa. ^63. 
 
 Blake, 17 Ind. 97; Small v. Reeves, 14 2 Ross v. Thompson, 7S Ind. 90. 97. 
 
 Ind. 163; Tate v. Booe, 9 Ind. 13; Patron 3 Webb v. Portland, etc., Co., 3 Sumn. 
 
 v. Hamilton, 12 I ml. 256; Black v. Coan, (U.S.Cir.), 189; Faust v. City of Hunt- 
 
 4S Ind. 3S5; Wimberg v. Schwegeman, ington, 91 Ind. 493, 496; Kyle* Board, 
 
 97 Ind. 528; Watson v. Van Meter. 43 94 Ind. 115. Il8. 
 Iowa, 76; Case Threshing- Machine Co 
 
 36
 
 562 
 
 ERROR IX JUDICIAL PROCEEDINGS 
 
 § (j.°>7. Rulings on Demurrer — Where the record shows that the 
 judgment rests entirely on good paragraphs of a complaint an 
 error in overruling a demurrer to a bad paragraph will be re- 
 garded as harmless. 1 So, where the record affirmatively shows 
 that no harm resulted from overruling a demurrer to one of sev- 
 eral paragraphs of an answer the error will be deemed not 
 prejudicial. 2 But it is to be observed of cases of the class last 
 referred to that the record proper must show that the ruling 
 was harmless, for the court will not search through the evidence 
 for the purpose of ascertaining whether harm did or did not 
 result. 3 Where a demurrer is sustained to one of several par- 
 agraphs of an answer the error is harmless if there are other 
 paragraphs under which the same evidence is admissible. 4 If 
 
 1 Burckham v- Burk, 96 Ind. 270; 
 Tracewell z>. Farnsley, 104 Ind. 497; 
 Bidinger v. Bishop, 76 Ind. 244; Burgett 
 v. Teal, 91 Ind. 260; Reed v. Dougan, 54 
 Ind. 306; Peery v. Greensburgh, etc., 
 Turnpike Co., 43 Ind. 321; Blasingamc 
 t>. Blasingame, 24 [nd.86; Stone v. State, 
 75 Ind. 235; Martin v. Cauble, 72 Ind. 
 67; Cincinnati, etc., Co. v. Gaines, 104 
 Ind. 526; Smith v. McKean, 99 Ind. 
 101; Bloomfield R. R.Co.ti. Van Slike, 
 107 Ind. 480; Hawley v. Smith, 45 Ind. 
 183, 184; Stanton v. State, 82 Ind. 
 463; Johnson v. Ramsay, 91 Ind. 189, 
 196; Harnett v. Fearv, 101 Ind. 95, 98; 
 Wolf v. Schofield, 3S Ind. 175; Knox 
 Co. Bank v . Lloyd, iS Ohio St. 353; 
 Trammel v. Chipman, 74 Ind. 474; Snell 
 v. Hancock, 11 Iowa, 117. But the rec- 
 ord must affirmatively show that the 
 judgment rests on the good paragraphs. 
 See post, § . 
 
 ' A Walling v. Burgess, 122 Ind. 299, 
 30S, citing Over v. Shannon, 75 Ind. 
 352; Nixon v- Campbell, 106 Ind. 47; 
 King v. Davis, 101 Ind. 75; Sohn v. 
 Cambern, 106 Ind. 302. 
 
 3 Pennsylvania Co. v. Marion, 104 
 
 Intl. 239; Belt R. Co. v. Mann, 107 Ind. 
 
 Fleetwood v. Brown, 109 Ind. 567; 
 
 Rush v- Thompson, 112 Ind. 15S; Ryan 
 
 v. Hurley, 119 Ind. 115; Eagle Machine 
 Works v. Arens, 123 Ind. 233; Weir v. 
 State, 96 Ind. 311,315; Wilson v. Town 
 of Monticello, 85 Ind. 10; Sims v. City of 
 Frankfort, 79 Ind. 446,449; Conyers v. 
 Mericles, 75 Ind. 443; Johnson v. Breed- 
 love, 72 Ind. 36S; Over v- Shannon, 75 
 Ind. 352; Pennsylvania Co. v- Poor, 103 
 Ind. 553; Godfrey v. Craycraft, Si Ind. 
 476; Travelers Ins. Co. v. Noland, 97 
 Ind. 217. 
 
 4 Harding v. Cowgar, 127 Ind. 245; 
 Lawrenceburgh, etc., Co. v. Hinke, 119 
 Ind. 47; Whiteman v- Harriman, S5 Ind. 
 49; Luntz v. Grevc, 102 Ind. 173; City 
 of Elkhart v. Wickwire, 87 Ind. 77; 
 Long v. Williams, 74 Ind. 115; Lester 
 v. Brier, SS Ind. 296; George v. Brooks, 
 94 Ind. 274; Madgett v. Fleenor, 90 Ind. 
 517; Moore v. Boyd, 95 Ind. 134; Mc- 
 Clelland v. Louisville, etc., Co., 94 Ind. 
 276; Hazelett v. Butler University, 84 
 Ind. 230; City of Aurora v. Fox, 78 Ind. 
 1; Ohio, etc., Co. v. Nickless, 73 Ind. 
 3S2; Moral School Township, 74 Ind. 
 93; Masons. Mason, 102 Ind. 38; Nixon 
 v. Beard, m Ind. 137; Henderson v. 
 Henderson, no Ind. 316; Ralston v. 
 Moore, 105 Ind. 243. The earlier cases 
 are collected in Ripley's Indiana Digest, 
 pp. 5S5, 586. There is, it is important
 
 HARMLESS ERROR. 
 
 563 
 
 the answer to which a demurrer is- addressed is bad, no harm 
 is done in sustaining the demurrer, although the demurrer may 
 not state a sufficient cause or be properly framed. 1 Where 
 tacts are admitted in an agreed statement an error in overrul- 
 ing a demurrer to a bad paragraph of answer is, as it has been 
 held, rendered harmless.- If the record clearly shows that a 
 defendant was awarded the relief claimed in his answer an 
 error in sustaining a demurrer will not be available. 3 It is held 
 that where the record affirmatively shows that the trial court 
 excluded all evidence under a paragraph to which a demurrer 
 was erroneously overruled that error is rendered harmless.' It 
 is held in some of the cases that if facts alleged in a pleading 
 are found to be untrue an error in ruling upon a demurrer ad- 
 dressed to it is not available for the reversal of the judgment. 5 
 
 to note, a very essential difference be- 
 tween sustaining a demurrer and over- 
 ruling a demurrer. See post, § 669. 
 
 1 Davis v. Green, 57 Ind. 493; Had- 
 ley v. State, 66 Ind. 271; Palmer v. 
 Haves, 112 Ind. 289. 
 
 2 State v. Blanch, 70 Ind. 204. 
 
 3 Putnam v. Tennyson, 50 Ind. 456. 
 
 4 State v. Julian, 93 Ind. 292. 
 
 5 Souders v. Jeffries, 9S Ind. 31; Bart- 
 lett v. Pittsburgh, etc., Co., 94 Ind. 281; 
 State v. Julian, 93 Ind. 292; Cooper ■?. 
 Jackson, 99 Ind. 566; Keegan v. Car- 
 penter, 47 Ind. 597. We think, how- 
 ever, that the fact that a pleading is 
 found to be untrue is not always and of 
 itself sufficient to show the error to be 
 harmless. It is to be regarded as prej- 
 udicial unless it appears from the rec- 
 ord proper that the judgment was not 
 influenced in any material particular by 
 the bad pleading. The decisions do 
 not, as we believe, sustain the broad 
 statement that if the pleading is found 
 to be untrue the error is harmless. In 
 State v. Julian, supra, the question was 
 not before the court, for there all evi- 
 dence under the bad pleading was ex- 
 cluded, so that it was perfectly clear 
 that the ruling holding it good was un- 
 
 influential. In Nave v. Wilson, ^3 Ind. 
 294, cited as sustaining the doctrine we 
 disapprove, the same point was ruled 
 as that which the decision turned upon 
 in State v. Julian. In Blessing v- Blair, 
 45 Ind. 546, also cited in support of that 
 doctrine, the verdict was for the plain- 
 tiff, and he, of course, suffered no injury. 
 The point decided in Hawley v. Smith, 
 45 Ind. 1S3, and in all the other cases 
 cited in State v. Julian, except those 
 just named, and except McComas v. 
 Haas, 93 Ind. 276, and Keegan v. Car- 
 penter, supra, was that an error in rul- 
 ing upon a demurrer to a bad paragraph 
 of a pleading is harmless where the 
 record proper affirmatively shows that 
 the judgment rests on a good para- 
 graph. In Keegan v. Carpenter, supra, 
 the same ruling was made as in Bless- 
 ing v. Blair, supra, and that was, in 
 substance, that as the record proper 
 affirmatively showed that theparty who 
 pleaded the bad pleading was denied 
 all benefit the adverse part}' was nut 
 harmed. In McComas v. Haas, supra, 
 the answer of the jury to interrogatories 
 clearly showed that the defendant who 
 pleaded the answer to which a demurrer 
 was erroneously overruled received no
 
 56J ERROR IX JUDICIAL PROCEEDINGS. 
 
 § 638. Resorting to the Evidence to Avoid the effect of an Er- 
 roneous Ruling upon Demurrer— The intimation in some of the 
 cases that the evidence may be searched in order to determine 
 whether or not a ruling upon demurrer was harmless can not, as 
 believe, be regarded as asserting a correct general rule. It 
 is possible that where there is absolutely no conflict in the evi- 
 dence, it may be determined from an inspection of the evidence, 
 but the doctrine certainly can not be correctly applied in cases 
 where the evidence is conflicting. We believe that as a general 
 rule resort to the evidence is not proper or permissible. If a 
 party tenders a bad pleading he has no right to insist, for the pur- 
 pose of saving a judgment in his favor, that the pleading although 
 bad is shown by the evidence to have done no injury to his ad- 
 versary. The party who files a pleading does so because he 
 conceives that it will secure him some advantage, and an ad- 
 vantage he can not obtain without a corresponding injury to his 
 adversary. Nor is it just to the court or to the adverse party 
 for such a party to compel the decision of a question as one of 
 evidence when he himself put it forward as one of pleading. 
 There is no justice in driving a party from the certainty of 
 pleading to the uncertainty of evidence. There is no tinge of 
 right in a claim that the court or the adverse party must ex- 
 plore the evidence to determine whether a ruling upon demurer 
 was or was not harmless. The object of requiring pleadings 
 would be in a great measure defeated if parties were allowed 
 
 benefit from that answer and that the thereto was harmless." The decision in 
 ruling did no injury to the plaintiff. In Bartlett v. Pittsburgh, etc., Co., supra, 
 that case it was expressly decided that may be sustained upon the ground that 
 resort could not he made to the evi- the record proper showed that no harm 
 dence. In State v. Jeffries, supra, the was done the appellant. The effect of 
 judgmenl went against the plaintiffupon the decision in Cooper t>. Jackson, supra, 
 his complaint so that the answer was probably is that the evidence may he 
 influential. It was, therefore, un- looked to in order to determine whether 
 isary to say in that case anything a ruling on demurrer is or is not harm- 
 the effect of proving an answer to less, but as will clearly appear from the 
 be untrue. The point decided, and the authorities referred to in the next par- 
 only point in judgment, is thus exhibited agraph, this doctrine is not the true one. 
 in the opinion: "As the court found It may, perhaps, be correct if qualified 
 and gave judgment againsl the appellee and limited by restricting it to a case 
 ■ his complaint the error, if any, of where there is no conflict in the evi - 
 overruling the appellant's demurrer dence.
 
 HARMLESS ERROR. 
 
 565 
 
 to invoke the aid of evidence to make bad pleadings good or 
 rescue them from condemnation. It is carrying the rule quite 
 far enough to hold that if the record proper, as a special finding, 
 a special verdict, or the like, affirmatively shows the harmless- 
 ness of an erroneous ruling the error will not avail the party 
 against whom it was committed. Beyond that it can not be 
 carried without producing discord and working injury. The 
 later decisions sustain our views and supply strong reasons 
 supporting them. 1 It is quite clear that where a demurrer is 
 
 1 In the case of Ryan v. Hurley, 119 
 Ind. 115, the court in speaking of 
 an erroneous ruling upon demurrer 
 said: "We can not look into the evi- 
 dence to determine whether injury did 
 or did not result from such error." In 
 McComas v. Haas, 93 Ind. 276, 281, it 
 was said: "But the sufficiency of a 
 paragraph of answer when demurred 
 to must be determined upon the facts 
 6tated therein and not upon matters 
 elsewhere appearing in the record. The 
 effect of overruling a demurrer to a bad 
 
 of law involved in the ruling was acted 
 upon throughout the case and the de- 
 fendant is not bound to again present 
 the question-." The cases of Friddle 
 v. Crane, 68 Ind. 5S3; Johnson v. Breed- 
 love, 72 Ind. 36S; Abell v. Riddle, 75 
 Ind. 345; Conyers v. Mericles, 75 Ind. 
 443, and Sims v. City of Frankfort. 79 
 Ind. 446, were cited. It was said in 
 Pennsylvania Co. v. Poor, 103 Ind. 553, 
 555: "The court can not examine evi- 
 dence to determine questions presented 
 by demurrer, for the demurrer presents 
 
 paragraph of answer is to adjudge that if the question fully, and the question 
 
 the facts therein are proved, the defend- 
 ant is entitled to a verdict, however in- 
 sufficient such facts may be to constitute 
 a defense to the action." In thecase>of 
 Wilson c. Town of Monticello, 85 Ind. 
 10, 20, the question was as to the right to 
 resort to the evidence to obviate the ef- 
 fect of an error in ruling upon a de- 
 murrer to an answer, and it was held that 
 resort could not be made to the evidence, 
 the court saying: "Where good answers 
 are held on demurrer or are rejected on 
 motion, the defendant is entitled to the 
 benefit of the exception reserved upon 
 that ruling, unless there are other an- 
 swers entitling him to put in evidence 
 substantially the same matters as are 
 pleaded in the answers held bad or re- 
 jected. The evidence is not to be looked 
 to for the purpose of discovering 
 whether the ruling did or did not do 
 him harm. Where a plea is struck 
 down the presumption is that the rule 
 
 presented must be decided according to 
 the record." To the same effect are the 
 cases of Belt R. R. Co. v. Mann, 107 
 Ind. S9; Rush v. Thompson, 112 Ind. 
 158; Fleetwood v. Brown, 109 Ind. 
 567. In the case last cited it was said, 
 in speaking of the cases of Campbell v. 
 Nebeker, 58 Ind. 446; Layman v. 
 Shultz, 60 Ind, 541; Gallagher v. Him- 
 elberger, 57 Ind. 63, and Landwerlen v. 
 Wheeler, 106 Ind. 523, that: "It was 
 not therein held, nor intended to be 
 held, that this court may look to the 
 evidence to ascertain whether or not 
 the sustaining of a demurrer to a good 
 paragraph of an answer was a harmless 
 error. It has never been so held by 
 this court. On the contrary, the hold- 
 ing has been that the evidence is not to 
 be looked to for the purpose of discover- 
 ing whether the ruling did or did n t 
 do harm."
 
 566 ERROR IN JUDICIAL PROCEEDINGS. 
 
 sustained, a resort to the evidence can not be had, since the 
 effect of such a ruling is to assert that no evidence of the tacts 
 alleged is competent, and the presumption upon which the 
 parties had a right to act is that the theory announced in the 
 ruling on the pleadings would be adhered to throughout the en- 
 tire case. The question is not very different where a demurrer 
 i- < rroneously overruled, inasmuch as the presumption is the 
 same as that which prevails in cases where the demurrer is sus- 
 tained. Parties are not bound to anticipate changes in the 
 views of the court, nor, indeed, have they any right to act upon 
 the supposition that the court will depart from the theory out- 
 lined in its rulings upon demurrer. 1 
 
 § 639. Rulings on Motions to strike out or reject Pleadings — It 
 
 is not an available error to deny a motion to strike out surplus- 
 age or redundant matter in pleadings or to deny a motion to 
 strike out a pleading because it is the same as other pleadings 
 or embraced in them. 2 Although an erroneous ruling may be 
 made in sustaining a motion to strike out it will be harmless if 
 enough is left to entitle the party to give evidence of all the 
 material facts originally pleaded.' 5 It is error to sustain a mo- 
 tion to strike out where the parts of the pleading ordered to be 
 struck out are material and necessary. 4 There is, of course, 
 no error in sustaining a motion to strike out or reject where the 
 
 1 Ante, (j 591. '• Presumption that fordsville v. Brunda<xe, 57 Ind. 2f>2; 
 
 the court adheres to a declared or indi- Sprague t. Pritchard, 108 Ind. 491; 
 
 cated theory." Wilson v. Town of Mires v- Alley, 51 Ind. 507; House v. 
 
 Monticello, 85 Ind. 10, 20. McKinney, 54 Ind. 240; George v. 
 
 1 Walker v. 'Larkin, 127 Ind. 100; Brooks, 94 Ind. 274; Hoke v. Apple 
 
 ling v. Watson, 91 Ind. 57S; Owen 92 Ind. 570; Smith v. Martin, So Ind. 
 
 r. Phillips, 73 Ind. 2S4; Lowryz). McAl- 260; Hewitt v. Powers, 84 Ind. 295; 
 
 86 Ind. 543; Goodwine v. Miller, Strong v. Taylor School Tp., 79 Ind. 
 
 32 Ind. 419; Turner v. Camphell, 59 208. 
 
 Ind. 279; City of Evansville i\ Thayer, 3 Humphreys v. Stevens, 49 Ind. 491; 
 
 59 Ind. 324; McFalW'. Howe Co. ,90 Ind. Board v. Reynolds, 44 Ind. 509. 
 
 Losey v. Bond, 94 Ind. 67; Morris * Clark v. Jeffersonville, etc., Co., 44 
 
 v. Stern, So Ind. 227; Clark v. Jefferson- Ind. 24S; Chicago, etc., Co. v. Sum- 
 
 ville. etc., Co., 44 Ind. 24S; Dill t\ mers, 113 Ind. 10; Stanton v. State, 74 
 
 O'Ferrell. 45 Ind. 26S; City of Craw- Ind. 503.
 
 HARMLESS ERROR. fj(;7 
 
 part of the pleading objected to by the motion is redundant, 
 immaterial or irrelevant. 1 
 
 § 640. Pleadings defective in Form — Defects in form are not 
 available for the overthrow of pleadings upon appeal. The 
 statute provides that matters of form shall be disregarded and 
 that, as to such matters, pleadings that might be amended be- 
 low shall be deemed to be amended in the higher court. 2 The 
 provisions of the code have been liberally applied. 3 The prac- 
 tical difficulty in applying the provisions of the statute arises in 
 cases where the borderland between matters of substance and 
 matters of form is so narrow that the side on which the particu- 
 lar case falls can scarcely be discerned. Where the defect is 
 one of substance and not of form the statutory provision does 
 not apply. 4 
 
 § 641. Rulings in admitting and excluding Evidence — Where a 
 point upon which evidence is excluded is conceded by an ad- 
 mission made during the trial, or by an admission in the plead- 
 ings, as well as where it is established by uncontradicted evi- 
 dence, error in excluding additional evidence is generally said to 
 be harmless, although it would, perhaps, be more accurate to say 
 there is no error. 5 Permitting the introduction of evidence 
 
 1 Ketcham v. Brazil Block Coal Co., 67 Ind. 236; White v. Stelhvagon, 54 
 88 lnd. 515; Board v. Huff, 91 Ind. 333; Ind. 1S6; Donellan v. Hardy, 57 Ind. 
 Gheens v. Golden, 90 Ind. 427; Robin- 393; Bremmerman v. Jennings, 101 Ind. 
 son v. Snyder, 74 Ind. no; Lake Erie, 253; Carver v. Carver, 97 Ind. 497; 
 etc., v. Fix, SS Ind. 381; Boyce v. Gra- Waltz v. Waltz, S4 Ind. 403, 40S. 
 ham, 91 Ind. 420; Gerard v. Jones, 78 * May v. State Bank, 9 Ind. 233; John- 
 Ind-37S; Columbus, etc., Co. v. Braden, son v. Breedlove, 72 Ind. 36S; Friddle 
 no Ind. 558; Hervey v. Parry, 82 Ind. v. Crane, 68 Ind. 583; Old v. Mohler, 
 283. 122 Ind. 594. See, generally, Mansur 
 
 2 R. S. 1SS1, § 658. v. Streight, 103 Ind. 35S; Eberhart v. 
 
 3 Hedrickfl. D. M. Osborne & Co., 99 Reister, 96 Ind. 478. 
 
 Ind. 143, 14S; Stockwell v. Johnson, 101 5 Citizens' State Bank v. Adams. 91 
 
 Ind. 1, 17, and cases cited; Buchanan v. Ind. 2S0; Holliday v. Thomas, 90 Ind. 
 
 State, 106 Ind. 251; Torr v. Torr, 20 398; Cooper v. Blood, 2 Wis. 62; State 
 
 Ind. 11$; McKinlay v. Shank, 24 Ind. v. Avery, 17 Wis. 672; Heath v. Keyes, 
 
 258; Lowry v. Dutton, 28 Ind. 473; 35 Wis. 668; Axte v. Chase, 83 Ind. 546; 
 
 Numbers v. Bowser, 29 Ind. 491; Lucas Davis v- Liberty, etc., Co., 84 Ind. 36; 
 
 v. Smith, 42 Ind. 103; Hamilton v. Win- McKesson v. Sherman. 51 Wis. 303; 
 
 terrowd, 43 Ind. 393; Krewson v. Cloud, Davis v. Town of Fulton, 52 Wis. 657; 
 
 [.5 Ind. 275; Bristol, etc., Co. v. Boyer, West Coast, etc., Co. 0. Newkirk, Ix>
 
 •OiJS 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 that is clearly immaterial is, as a general rule, harmless even 
 if erroneous. 1 But this rule is one to be applied with some 
 care, since it is not always possible for the appellate tribunal 
 to ascertain what effect apparently immaterial evidence may 
 have had upon a jury. It is, at all events, not safe to apply 
 the rule strictly or too generally. 2 Where it aiiirmatively ap- 
 pears or where it may be fairly inferred that in the particular 
 case the erroneous admission of the evidence could not have 
 influenced the verdict, the error is always to be regarded as 
 harmless. As evidence seemingly immaterial may sometimes 
 arouse prejudice, create undue passion, or carry the jury to 
 collateral issues, it must be true that there are cases forming 
 exceptions to the settled general rule. 3 Where objection is 
 made, but no evidence is introduced, the error in overruling 
 the objection is rendered harmless for the reason that the rul- 
 ing was uninfluential. 4 It is held in one of our cases that 
 " Illegal proof of what need not be proved at all will not viti- 
 ate a verdict." 5 But this doctrine requires some little qualifica- 
 tion, for it is very clear that serious harm may be done by per- 
 mitting a party to give incompetent evidence, although he may 
 
 Cal. 275, 22 Pac. Rep. 231 ; Dickinson v- 
 Coulter, 45 Ind.445; Indianapolis, etc., 
 Co. v. Anthony, 43 Ind. 1S3; Persons v. 
 McKibben, 5 Ind. 261, S. C.61 Am. Dec. 
 85; In re Crawford, 113 N.Y. 500; City 
 of Kinsley p. Morse, 40 Kan. 577, 20 Pac. 
 Rep. 217; Oshkosh, etc., Co. v. Ger- 
 mania, etc., Co., 71 Wis. 454, S. C. 5 
 Am. St. Rep. 233. 
 
 1 Latterett v. Cook, 1 la. i, S. C. 63 
 Am. Dec. 42S; Barton <o. Kane. 17 Wis. 
 3S, S. C. 84 Am. Dee. 728; Winklev v. 
 Foye, 33 X. II. 171, S. C. 66 Am. Dec. 
 715, 720. note; Edgerly v. Emerson, 23 
 N. H. 555, S.C. 55 Am. Dec. 207; Shep- 
 herd v. Lanfear, 5 La. 336, 25 Am. Dec. 
 iM ; Miles v . Stevens. 3 Pa. St. 21, S. C. 
 45 Am. Dee. 621; Brooks v. Dutcher, 22 
 N( b. '■! j. 56 V W. Rep. 128; Hanson 
 v. Elton, 38 Minn. W. Rep. 
 
 614; Robinson v. Shanks, 118 Ind. 125, 
 20N.E. Rep. 713; Klein v. Hoffheimer, 
 
 132 U. S. 367; McDermitt v. Hubanks, 
 25 Ind. 232; Wayne Count}' Turnpike 
 Co.d. Berrv. 5 Ind. 286; Nauglec State. 
 101 Ind. 2S4; Gebhart v. Burket, 57 Ind. 
 378; Lovinger v. First National Bank, 
 81 Ind. 354; Deig v. Morhead, no Ind. 
 
 45 1- 
 
 2 Graves v. Campbell, 74 Texas. 576. 
 12 S. W. Rep. 23S; Taylor ©.Baltimore, 
 etc., Co., 33 W. Va. 39, 10 S. E. Rep. 
 29; Bartletl v. Beardmore, 74 Wis. 485, 
 43 X. W. Rep. (.92; Fordyce v. Mc- 
 Cants, 59 Ark. 509, 11 S. W. Rep. 694; 
 Raker 7 . Dessauer, 49 Ind. 28. 
 
 3 It" the e\ idence is in the strict sense 
 immaterial, that is, wholly without in- 
 fluence, the rule applies in full vigor. 
 Fordyce v. McCants, 59 Ark. 509, n S. 
 W. Rep. 694. 
 
 4 Findley v. State, 5 Blackf. 576. 
 
 5 Beagles v. Sefton, 7 Ind. 496. The 
 general rule undoubtedly is that per-
 
 HARMLESS ERROR. 
 
 569 
 
 not be under any obligation to give any evidence upon the 
 point. Jurors having evidence laid before them with the sanc- 
 tion of the court often deem it material and yield to it when to 
 yield is to do wrong. Where a party himself proves a fact the 
 error in permitting his adversary to give evidence upon the 
 same point is uninfluential. 1 There is no prejudicial error 
 where an objectionable question is asked but no answer is given, 2 
 except in cases where it is fairly inferable that a persistence in 
 asking improper questions has probably influenced the jury to 
 believe that the facts assumed in the questions are true. 3 The 
 cases to which we have referred, and to which a multitude more 
 may be added, are all instances of the application of the wide- 
 reaching general rule that where a ruling either in admitting 
 or excluding evidence is not influential the error will be re- 
 garded as harmless. 4 
 
 § 642. Instructions — What errors are in general regarded as 
 Uninfluential — Errors in instructions which the record shows 
 
 mitting a party to give evidence upon a 
 point that he is not obliged to prove is 
 a harmless error. Linard v. Crossland, 
 10 Texas, 462, S. C. 60 Am. Dec. 213; 
 Donley V. Camp, 22 Ala. 659, S. C. 5S 
 Am. Dec. 274; Sims v. Boynton, 32 
 Ala. 353, S. C. 70 Am. Dec. 540. 
 
 1 Knowles v. Dow, 22 N. H. 3S7, S. C. 
 55 Am. Dec. 163. In such a case as 
 that cited the decision might well be 
 placed upon the ground that the party 
 invited the ruling and is, therefore, pre- 
 cluded from successfully complaining. 
 It may happen in such a case, as it does 
 in many others, that the ruling of the 
 trial court may be upheld upon more 
 reasons than one. In matters of pro- 
 cedure it is often true that a case may 
 be brought within one rule with almost 
 as much propriety as another. One who 
 sustains a ruling has very frequently 
 more than "one string to his bow." 
 
 2 Sharon v. Sharon, 79 Cal. 633, 22 
 Pac. Rep. 26; Warson v. McElroy, 33 
 Mo. App. 553. 
 
 3 People v. Mullings, S3 Cal. 138, 12 
 Crim. Law Mag. 436. It is evident that 
 this rule ought to apply to a persistent 
 offer to prove facts which it is assumed 
 a witness will testify to, for such offers, 
 as every lawyer of experience knows, do 
 often wrongfully and materially influ- 
 ence jurymen. A party who persists 
 in a course so manifestly unfair and so 
 clearly disrespectful to the trial court 
 has no reason to complain if it costs 
 him the judgment he obtains. The 
 doctrine can not, of course, apply where 
 the offers are of essentially different 
 evidence. 
 
 4 The rule prevails where the decision 
 is rendered by the trial court upon a 
 motion to strike out or reject evidence. 
 Wasson v. Hodsire, 10S Ind. 26; Rotan 
 v. Stoeber, Si Ind. 145. See, gener- 
 ally, Johnson v. Gwin, 100 Ind. 466; 
 Baker v. Carr, 100 Ind. 330; Henry o. 
 Carson, 96 Ind. 412; Kimble v. Seal, 92 
 Ind. 276; Newcomer v. Hutchings, 96 
 Ind. 119.
 
 570 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 were not likely to mislead the jury are regarded as harmless. 1 
 The oreneral rule is well settled, and the only difficulty in its 
 practical enforcement is in determining what errors were or 
 were not influential. Irrelevant instructions are as a general 
 rule, but not always, regarded as harmless, although they may 
 be erroneous. 2 Where instructions are given by the court sub- 
 stantially the same as those requested by the party who com- 
 plains there is no error in refusing to give the instructions 
 asked. 3 Although instructions should properly direct the jury 
 upon the measure of damages, nevertheless, if the court gives 
 an erroneous instruction it will be regarded as harmless if it 
 affirmatively appears from the record that the amount of dam- 
 ages assessed is correct. 4 If it affirmatively appears from the 
 
 1 The rule stated in the text is so well 
 settled and so familiar that it is unnec- 
 rv to cite cases for the simple pur- 
 pose of supporting it, and we have 
 therefore cited cases only for the pur- 
 pose of illustrating its application in 
 particular instances: Armstrong v. 
 Tail, S Ala. f>3 5 . S. C. 42 Am. Dec. 656; 
 Klimple v. Boelter, 44 Minn. 172, 40 N. 
 \V. Rep. 306; Hogshead v. State, 120 Ind. 
 327, 22 X. E. Rep. 330: Whidden v. 
 Seelye, 40 Me. 247, S. C. 63 Am. Dec. 
 661; Walters v. Jordan, 13 Ired. Law, 
 361, 57 Am. Dec. 558; Bos"ley v. Chesa- 
 peake, etc., Co., 3 Gill & J. 450, S. C. 22 
 Am. Dec. 337; Johnson v. Evans, 8 
 Gill, 155, S. C. 50 Am. Dec. 669; Saw- 
 yer v. Chicago, etc., Co., 22 Wis. 402, 
 S. C. 99 Am. Dec. 49; Zacharv v. Race, 
 9 Ark. 212. S. C. 47 Am. Dec. 744; 
 Hovey v. Chase, 52 Me. 304, S. C. S3 
 Am. Dee. 514, Lackawanna, etc.. Co. v- 
 Doak, 52 Pa. St. 579, S. C. 91 Am. Dec. 
 166; W'orlev v. Moore, 97 Ind. 15; 
 Ricketts?;. Harvey, 106 Ind. 564; Andis 
 v. Personett, 10S Ind. 202; Jones v. 
 A.ngell, 95 Ind. 370; Atkinson v. Dai- 
 ley, 107 Ind. 117: Copeland v. Koontz, 
 I.- Ind. 126; Staser v. Hogan, 120 Ind. 
 217; Cooper v. State 120 Ind. 377; 
 I v. Camden, 135 I'. S.507; O'Cal- 
 
 laghan v. Bode, 84 Cal. 489, 24 Pac. 
 Rep. 209. 
 
 * Hummel r. Tyner, 70 Ind.S4; At- 
 kinson v- Gwin, S Ind. 376; Parmlee v. 
 Sloan, 37 Ind. 469; Felkner v. Scarlet, 
 29 Ind. 154; Wallace v. Cravens. 34 
 Ind. 534; Rollins v. State, 62 Ind. 46; 
 Cassel v. Cooke, S Serg. & R. 26S. S. C. 
 n Am. Dec. 610; Stockton v. Stock- 
 ton, 73 Ind. 510; Mooney r. Kinsey. 90 
 Ind. 33; Ryman ?. Crawford, S6 Ind. 
 262. 
 
 3 Patrick v. Graham, 132 U. S. 027; 
 Hudson v. Ilouser, 123 Ind. 309; Con- 
 radt v. Clauve, 93 Ind. 476; Williamson 
 v. Gingling, 93 Ind. 42; Logan -•. Logan, 
 77 Ind. 558; Union Mutual, etc.. C 
 Buchanan, 100 Ind. 63, and cases cited; 
 Chicago, etc.. Co. v. Boggs, 101 Ind. 
 c;22; Louisville, etc., Co. v. Jones, 10S 
 Ind. 551: Town of Martinsville :•. 
 Shirley. S4 Ind. 546; Daegling v. Illi- 
 nois, etc., Co.. 33 111. App. 341; Mc- 
 Mahon ?\ Sankey, 35 111. App. 341, S. 
 C. 24 X. E. Rep. 1027. 
 
 4 Poland v. Miller, 95 Ind. 3S7; State 
 v. Parish. 83 Ind. 223; Chicago, etc., Co. 
 V. Hunter. [28 Ind. 213. 27 X. E. Rep. 
 477; Copeland V. Koontz. 125 Ind. 126, 
 2\ X. E. Rep. 17 |; Anderson v. Don- 
 aldson, 32 111. 404; Linck v. Scheffel,
 
 HARMLESS ERROR.. 
 
 571 
 
 record that in no event can the complaining party recover upon 
 the facts, errors in the instructions, however flagrant, may be 
 regarded as harmless. 1 If the answers of the jury to special in- 
 terrogatories clearly show that the party suffered no substantial 
 injury from a wrong instruction, there is no available error. 2 
 An erroneous instruction relating to a point upon which there is 
 no dispute, and having no bearing upon any other, is without 
 prejudicial influence. 3 There is no prejudicial error in refusing 
 an instruction asked by a party upon an issue fully decided in 
 his favor. 4 It is entirely proper to refuse instructions that have 
 no application to the evidence. 
 
 32 111. App. 17; Werner v. O'Brien, 40 
 Mo. App. 483; Sanders v. Reister, 1 
 Dak. 151, 46 N. W. Rep. 6S0; Stephens 
 v. Regenstein, 89 Ala. 561,8 So. Rep. 
 6S; Ohio, etc., Co. v. Dooley, 32 111. 
 App. 228; Wilson v. Everett, 139 W. 
 S. 616; Town of Lake v. Bok, 33 111. 
 App. 45. 
 
 1 Walbrun v. Babbitt, 16 Wall. 577; 
 Barth v. Clise, -12 Wall. 400; Evans v. 
 Pike, 11S U. S. 241; Deery v. Cray, 10 
 Wall. 263; Brobst v. Brock, 10 Wall. 
 
 5 J 9- 
 
 2 Louisville, etc., Co. v. Orr, 84 Ind. 
 50; Worley v. Moore. 97 Ind. 15; 
 Whitewater R. R. Co. v. Budgett, 94 
 Ind. 216; Cline v. Lindsey, no Ind. 
 337, n N. E. Rep. 441; Woolery v. 
 Louisville, etc., Co., 107 Ind. 3S1; 
 Cleveland, etc., Cc. v. Newell, 104 Ind. 
 264; Ronan v. Meyer, 84 Ind. 390; 
 Moore v. Lynn, 79 Ind. 299: Louis- 
 ville, etc., Co. -•. Krinning, S7 Ind. 351; 
 Barnett v. Feary, 101 Ind. 95; Kuhns 
 v. Gates, 92 Ind. 66; Bedford, etc., Co. 
 v. Rainbolt, 99 Ind. 551; Hayden v. 
 Souger, 56 Ind. 42, S. C. 26 Am. Rep. 
 1; Ohio, etc., Co. v. Dooley, 32 111. 
 App. 228. Where a case is submitted 
 on an agreed statement of facts, it has 
 been held that instructions need not be 
 noticed. Payne v. First National Bank, 
 43 Mo. App. 377. But we suppose that 
 this can hardly be correct as a general 
 
 rule, although it may be correct in some 
 cases, for where parties simply agree as 
 to what facts the evidence will prove 
 there maj r be material error in direct- 
 ing the jury as to the law. 
 
 3 Tomlinson v. Briles, 101 Ind. 538. 
 
 4 Woodward v. Beegue, 53 Ind. 176. 
 It is not prejudicial error for the court 
 to refuse to instruct the jury upon mat- 
 ters of known duty, as, for instance, 
 that they should decide the case before 
 them without preiudice, partialitv or 
 favor. A party can not complain of 
 the refusal to give instructions asked by 
 his adversary. Chicago, etc., Co. v. 
 Powell, 40 Ind. 37. We think, how- 
 ever, that there may be cases where a 
 party could justly complain, as, for in- 
 stance, if the court had misled him bv 
 signifying a purpose to give the instruc- 
 tions asked and then failing to do so. 
 But such a case forms a marked excep- 
 tion to the general rule. Where it af- 
 firmatively appears that an instruction 
 is not applicable to the facts, there is 
 no error in refusing it. Beard v. Sloan, 
 3S Ind. 12S; Sering v. Doan, 23 Ind. 
 455. See, generally, Huntington v. 
 Colman, 1 Blackf. 34S; Fitzgerald v. 
 Jerolaman, 10 Ind. 33S; Musselman v. 
 Pratt. 44 Ind. 126; Hays v. Hynds, 2S 
 Ind. 531; Carter v. Pomerov. 30 Ind. 
 43S; Miles v. Douglass, 34 Conn. 393; 
 People v. Muller, 96 N. Y. 40S. 413;
 
 572 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 643. Verdict clearly Ri^ht on the Evidence, Erroneous Instruc- 
 tions Harmless — It is held in many cases that when the verdict 
 is clearly right on the evidence errors in instructions may be 
 treated as harmless. 1 The general rule is firmly settled, but 
 there is difficulty in giving it just application to particular in- 
 stances. Where the evidence is uncontradicted, or where the 
 complaining party could not have prevailed, no matter what 
 instructions were given, 2 the rule may be readily and easily 
 applied, but where there is some, although apparently no very 
 material conflict in the. evidence, there is much difficulty in 
 practically applying the general rule, inasmuch as in such cases 
 there is danger of invading the province of the jury and usurp- 
 ing functions that do not belong to the court. In truth, the ap- 
 plication of the rule is in a great measure arbitrary and rests 
 chiefly in the discretion of the court. It is very difficult to recon- 
 cile the broad doctrine of some of the cases, which assert that 
 where the verdict is right on the evidence, erroneous instructions 
 may be regarded as harmless, with the long settled and familiar 
 doctrine that the court can not charge upon the w r eight of evi- 
 dence or instruct as to the credibility of witnesses. 3 It is like- 
 
 Jellison v. Goodwin, 43 Me. 2S7, S. C. 2 Donley v. Camp. 22 Ala. 659, S. C. 
 
 69 Am. Dec. 62; Thorwegan v. King, 58 Am, Dec. 274. 
 
 in U. S. 549. 3 Kul wider v. [ngels, 87 Ind. 414; State 
 1 Standard Oil Co. v. Bretz, 9S Ind. v. Huffman, 16 Ore. 1^, 16 Pac. Rep. 
 231; Ashley v. Foreman, S5 Ind. 55; 640; Frame v. Badger, 79 111. 441 ; Jen- 
 Cheek v. City of Aurora, 92 Ind. 107; kins v. Tobin, 31 Ark. 306; Wannack 
 Mand v. Trail, 92 Ind. 521; Musselman v. Mayor, etc., $3 Ga. 162; Clapp v. 
 v. Wise, 84 Ind. 24S; Morris v. State, Bromaghan, 9 Cow. 530; Morris v. 
 94 1 nd. 565; Wolfe v. Pugh, 101 Ind. Lachman, 6S Cal. 109, 113; Cutchfield 
 293; Perry v. Makemson, 103 Ind. 300; v. Richmond, etc., Co., 76 N. C. 320; 
 ady v. Magher, S5 Ind. 22S; Sim- McMinn v. Whelan, 27 Cal. 300; Rice 
 mon v. Larkin, 82 Ind. 385; Louisville, v. State, 3 Tex. App. 451; Common- 
 etc., Co. v. Grubb, 88 Ind. 85; Payne v. wealth v. Barry, 9 Allen, 276; Gillian 
 June. 92 Ind. 252; Daniels v. McGin- V. Ball, 49 Mo. 249; State v. Smith, 49 
 nis, 97 Ind. 549; Wood v. Ostram, 29 Conn. 376, 3S7; People v. Kelly, 35 
 Ind. 177; Roberts v. Nodwift, 8 Ind. Hun. (N.Y.) 295; Andrews v. Runyon, 
 I'.rooster v. State, 15 Ind. 190; 65 Cal. 629; Cuningham v. State, 65 
 Lafayette, etc., Co. v. Adams, 26 Ind. Ind. 377; Matthews v. Story, 54 Ind. 
 76; Blake t\ Hedges, 14 Ind. 506; 417; Broker v. Scobej', 56 Ind. 588; 
 Thompson v. Thompson, 9 Ind. 323, S. Carter -\ Pomeroy, 30 Ind. 43S. See 
 
 C. 68 Am. Dec. 638; Davis v. Liberty, post, § . 
 
 etc., Co., 84 Ind. 36; Ledford v~. Led- 
 ford, 95 Ind. 2S3.
 
 HARMLESS ERROR. 
 
 573 
 
 wise quite difficult to harmonize the doctrine with the settled 
 rule that where there is any material evidence fairly entitled to 
 consideration a party has a right to have the law applicable to 
 that evidence declared to the jury by the court. 1 The doctrine 
 is one, it is quite safe to say, that is to be cautiously and sparingly 
 applied, for the reason that without the witnesses before the 
 court, it is difficult for the court to correctly weigh the evidence, 2 
 and for the further reason that it is almost impossible to under- 
 take that work without invading the province of the jury. The 
 general rule, as declared by high authority is, that where there 
 is a radically erroneous instruction it must appear from the 
 record " beyond doubt, " that it did not prejudice the complain- 
 ing party, or the judgment will be reversed. 3 It is probably 
 
 1 Chamberlin v. Chamberlin, 116 111. of Mobile, etc., Co. v. Jurey, in U. S. 
 4S0, 6 N. E. Rep. 444; State v. Dunlop, 584. While the Supreme Court of the 
 65 N. C. 28S; Carpenter v. State. 43 United States asserts, as the extracts 
 Ind. 371; People v. Taylor, 36 Cal. 255. made from its opinions show, a very 
 
 2 In cases far too numerous for cita- strong doctrine, still it nevertheless 
 
 tion the courts have declared that they 
 will not weigh the evidence. The sound - 
 ness of the rule that the courts will not 
 weigh the evidence where all they know 
 
 fully recognizes the doctrine that error 
 must be prejudicial or there will be no 
 reversal. Lancaster v. Collins, 115 U. 
 S. 222; Smiths v. Shoemaker, 17 Wall. 
 
 of it is what appears in the record, is 630; Decatur Bank r. St. Louis Bank, 
 
 vindicated in an article in the Wash- 
 ington Law Rep. See 33 Central Law 
 Jour. 293. 
 
 8 In the case of Gilmer v. Higlev, no 
 U. S. 47, 50, the Supreme Court of the 
 United States, in speaking of the con- 
 tention that the record did not affirma- 
 tively show that the complaining party 
 was prejudiced, said: " We have not 
 heard of such a rule in a revisory court. 
 The furthest that any court has gone 
 has been to hold that when such court 
 can see affirmatively that the error 
 worked no injury to the party appeal- 
 ing, it will be disregarded. This court 
 in Deery v. Cray, 5 Wall. 795, S07, used 
 this language: ' Whenever the applica- 
 tion of this rule is sought, it must appear 
 *o clear as to be beyond doubt that the 
 error did not and could not have preju- 
 diced the party's rights.' " To much the 
 same effect is the decision in the case 
 
 21 Wall. 294; Allis v. Ins. Co., 97 U. S. 
 144; Northern R. R. Co. v. Herbert, 
 116 U. S. 642; Grand Chute Co. v. 
 Winegar, 15 Wall. 355; Hornbuckle v. 
 Stafford, in U. S. 3S9; Mining Co. v. 
 Taylor, 100U.S.37; Cooper v. Coates, 
 21 Wall. 105. A very strong illustration 
 of the rule that errors which do not pre] - 
 udice the party complaining are harm- 
 less is supplied by the case of Pence v. 
 Langdon, 99 U. S. 57S. In that case the 
 trial court submitted written instru- 
 ments to the jury for construction, and 
 it was held that even if this was error it 
 was nothing more than harmless error, 
 for the reason that the jury placed the 
 correct construction upon the instru- 
 ments. See. also. Walden v. Bodley. 14 
 Pet. 156; Railroad Co. v. Pratt. 22 
 Wall. 123; Douglass v. McAllister, 3 
 Cranch. 298; Brobst v. Brock, 10 Wall. 
 519; Tweed's Case, 16 Wall. 504; Walk-
 
 574 ERROR IN Jl DICIAL PROCEEDINGS. 
 
 true that the language employed in the case just referred to is 
 somewhat stronger than the decisions of the majority of the 
 courts sustained, but the principle asserted is that which gen- 
 erally prevails, and the difference is rather in the method of 
 expressing the rule than as to the rule itself. 
 
 § 644. Instructions — Verbal Inaccuracies — The rule is, that an 
 error in framing an instruction is harmless if it was such as 
 could not have misled the jury. Where the context shows the 
 meaning of a term employed in an instruction and the meaning 
 is so controlled as to prevent the jury from being misled as to 
 the law, the error may well be regarded as uninfluential, 1 but 
 where the term itself conveys an erroneous meaning, and it is 
 not controlled or explained by the words with which it is asso- 
 ciated, the error must be regarded as prejudicial. This rule 
 simply means that if the language employed is such as to cre- 
 ate an erroneous impression upon the minds of the jury, and 
 the impression so created substantially affects a material point 
 in the case, the error is influential against the party to whose 
 interests it is adverse, 2 otherwise it is not. 3 
 
 er v. Johnson, 96 U. S. 424; Evans v. tain a demurrer to theevidence or direct 
 
 Pike, 11S U. S. 241. It seems to us a verdict. But our cases, although in 
 
 that the question is one dependent in confusion, seem to indicate a rule less 
 
 most cases upon the character of the strict than that suggested. 
 
 error itself, as exhibited by the record 1 Pittsburgh, etc., Co. v. Sponier, S5 
 
 in the particular instance. If that error Ind. 165: Chambers v. Kyle, 87 Ind. S3; 
 
 is in itself radical and affects substantial Wilson t>. Trafalgar, etc., Co., 93 Ind. 
 
 rights in a material degree, or may prob- 2S7; Vanvalkenberg v. Vanvalkenberg, 
 
 ably so affect such rights, then the error 90 Ind. 433, Hogshead v. State, 120 
 
 can not be regarded as uninfluential un- Ind. 327, 22 N. E. Rep. 330; O'Calla- 
 
 less the record, with decisive clearness ghan v. Bode, S4 Cal.489, 24 Pac. Rep. 
 
 and strength, affirmatively shows that 269; Clem v. Clem (Ky.), 13 S. W. 
 
 it did not influence the final decision in Rep. 102; Chambers v. Meaut, 66 Miss, 
 
 the case to the prejudice of the party 625, 6 So. Rep. 465; Steinkamper v. 
 
 who complains. See <nit,\ § 635, and McManus, 26 Mo. App. 51. 
 
 authorities cited. It' this is the true 2 Abbott v. Dvvinnell, 74 Wis. 514, 43 
 
 rule then it must follow that the evi- N. W. Rep. 496. 
 
 dence can not decisively show a radical 3 Walburn v. Babbitt, 16 Wall. 577; 
 
 error to be harmless unless it so clearly, Chicago, etc., Co. v. Whitton, 13 Wall, 
 
 strongly and fully sustains the judgment 270; Kimble v. Seal, 92 Ind. 276. 
 below that it would not be error to sus-
 
 HARMLESS ERROR. 
 
 575 
 
 § 645. Erroneous Instructions generally harmless where there is 
 a Special Verdict — Where there is a special verdict it is unnec- 
 essary and, indeed, improper, to instruct the jury upon the 
 general principles of law applicable to the case. As there is 
 no propriety in giving general instructions, and as the law of 
 the case must be pronounced upon the facts contained in the 
 special verdict, general instructions can not, as a rule, be in- 
 fluential. 1 It is proper to instruct as to the form of the verdict 
 and like matters, and it is possible to conceive that prejudicial 
 error may be committed in giving such instructions. So, if 
 the court should undertake, as it might with propriety do, to 
 instruct the jury concerning the rules of evidence, errors in 
 that class of instructions might be so influential and material 
 as to constitute available error. So, again, if the court should 
 invade the province of the jury in such instructions the error 
 might be of such a character as to be deemed prejudicial. 
 
 § 646. Equity Cases — General Instructions Unnecessary — As suits 
 in equity are to be ultimately determined by the court and not 
 by the jury general instructions are not required. 2 As general 
 
 1 Louisville, etc., Co. v. Frawley, no 
 Ind. iS; Johnson v. Culver, n6 Ind. 
 27S, 294; Lake Shore, etc., Co. v. Stupak, 
 123 Ind. 210, 225; Stayner v. Joyce, 120 
 Ind. 99; Woollen v. Wire, no Ind. 251; 
 Indianapolis, etc., Co. v. Bush, 101 Ind. 
 582; Louisville, etc., Co. v. Hart, 119 
 Ind. 273; Toler v. Keiher, 81 Ind. 383. 
 The general doctrine was thus stated 
 in Louisville, etc., Co. v. Frawley, 
 supra: "There is, therefore, neither 
 propriety nor fitness, that the court 
 should, either upon its own motion or 
 at the request of counsel, give any gen- 
 eral instructions as to the law of the 
 case. The jury should be left entirely 
 free to find the facts material to the 
 several issues, without instruction as to 
 
 with whatever else may be necessary 
 to enable the jury clearly to compre- 
 hend the subjects which are to be cov- 
 ered by their special verdict, is all that 
 is proper when a special verdict is to be 
 returned." Cole v. Crawford, 69 Texas, 
 124, 5 S. W. Rep. 646. 
 
 2 Swales v. Grubbs, 126 Ind. 106, no. 
 In the case cited the court used this 
 language: "In chancery cases the 
 province of the jury is to find facts, and 
 not to administer equities in the light 
 of legal rules. This is for the court 
 when the facts are ascertained. It is 
 enough, therefore, to say that in a case 
 like the present, general instructions as 
 to the law applicable to the facts are 
 not proper, and available error can not 
 
 whether the law will declare one way or be predicated upon the giving or the 
 
 the other, upon the facts or state of facts, refusal to give instructions of a general 
 
 which may be found. A statement by nature. In that respect the rules which 
 
 the court of matters put in issue by the govern where the jury are required to 
 
 pleadings and of the rules for weighing find a special verdict are controlling." 
 or reconciling conflicting testimony.
 
 ERROR IN* JUDICIAL PROCEEDINGS. 
 
 instructions are not required, it must be true, as a general rule, 
 that errors in giving or in refusing instructions in such cases 
 are uninfluential. This conclusion follows from the settled 
 general principle that where the ultimate conclusion is right 
 intermediate errors are harmless, 1 and in the class of cases we 
 are here considering the ultimate decision must be made by 
 the court. If that decision is right the appeal must fail, no 
 matter how erroneous the general instructions may have been, 
 but if wrong, a well taken and properly presented appeal must 
 be sustained no matter how correct the instructions may have 
 been. 
 
 £647. Incomplete Instructions — The general rule, declared 
 and enforced in many cases, is that, if an instruction is good as 
 far as it goes, there is no prejudicial error, although it may not 
 go as far as the party would have been entitled to have it go if 
 he had appropriately and seasonably made the proper request. 
 To make available an error in giving an instruction that does 
 not fully state the law, the party must properly request a full 
 instruction upon the point. 2 The general rule is not without 
 exceptions, for there may be cases where the instructions are 
 so incomplete as to convey a radically erroneous view of the 
 law, and where this is so, the error, if proper exceptions are 
 taken and saved, may be available for a reversal of the judg- 
 ment. But to constitute an exception to the general rule the 
 case must be one with strongly marked and very unusual char- 
 acteristics. The general rule can not, of course, apply where 
 it clearly appears that the instruction assumes to state all that 
 is essential and states only a part, leaving out important and in- 
 fluential elements. 3 
 
 i 648. Instructions — Construction of on Appeal — Instructions 
 are to be fairly and reasonably construed, and if, when so con- 
 
 ' Ante, § 590. "The ultimate ruling 4 Utah, 462, 11 Pac. Rep. 009; Vann V. 
 
 is decisive." State, 83 Ga. 44, 9 S. E. Rep. 945; Mil- 
 
 2 Post, §736. "Requests where in- burn Wagon Co. v. Kennedy, 75 Texas, 
 
 st ructions are correct as far as thev go." 212, 13 S. W. Rep. 2S. 
 
 ilso, Moore V. Brown. 81 Ga. 10, 6 3 State V. Bird, 107 Ind. 154; Harvey 
 
 S. E. Rep. 833; State v. Rook, 42 Kan. v. Cook, 24 III. App. 134. 
 419, 22 Pac. Rep. 626; Griffiths v. Clift,
 
 HARMLESS ERROR. 577 
 
 strued, there appears no reason to believe that the jury were 
 misled to the injury of the complaining party, errors and in- 
 accuracies contained in them may be treated as entirely unin- 
 fluential. The crucial test maybe said to be this: Did the 
 instructions, regarded as a whole, present the law of the par- 
 ticular case to the jury with reasonable clearness and accuracy? 
 If the instructions taken as a whole did so present the law, the 
 jury were not misled, and if they were not misled there is, as 
 appears from the authorities heretofore cited, no available er- 
 ror. The rule that the instructions are to be considered as a 
 whole and not in detached fragments has long prevailed, and 
 is asserted in verv many cases. 1 It is presumed that the jury 
 acted upon the instructions as a whole, and that their verdict 
 was not controlled by fragmentary or isolated parts of a series 
 of instructions. 2 If the language employed by the trial court in 
 its instructions is not accurate there is nothing more than harm- 
 less error at most, unless the inaccuracy was so great as to 
 have misled " a jury of reasonable intelligence." 3 The court is 
 presumed to have framed the instructions to fit the particular 
 case, and the instructions are to be considered with reference 
 to the evidence. 4 If the instructions considered with reference 
 
 1 Nave v. Flack, 90 Ind. 205, 211, and an, 100 Ind. 63, 74. In the case cited 
 
 cases cited; Good-win v. State, 96 Ind. the court quoted from Judge Thomp- 
 
 550; Union, etc., Co. v. Buchanan, 100 son's work on charging the jury, this 
 
 Ind. 63, 74, and authorities cited; Young language: "In every case, then, where 
 
 7'. McFadden, 125 Ind. 254, 257; Coble error is assigned on instructions given 
 
 v. Eltzroth, 125 Ind. 429; Clanin v. or refused, the initial point of inquiry - 
 
 Fagan, 124 Ind. 304; Conway v. Viz- is, were the jury misled?" The court 
 
 zard, 122 Ind. 266; Atkinson v. Dailey, also quoted from the same work the 
 
 107 Ind. 117; Brown v. State, 105 Ind. following: "The jury are presumed to 
 
 385; Hodges v. Bales, 102 Ind. 494; have understood the charge according 
 
 Blanchard v. Jones, 101 Ind. 542; Eg- to the fair import of its terms when 
 
 gleston v. Castle, 42 Ind. 531; United taken together." Thompson on Charg- 
 
 States v. Tenney (Ariz.), S Crim. Law. ing the Jury, § 131. 
 
 Mag. 4S6; Lewis v. State, 18 Texas 3 City of Indianapolis v. Scott, 72 
 
 App. 401; Carrington v. Pacific, etc., Ind. 196, 203; McDonel v. State, 90 
 
 Co., 1 Cal. 475; Clark v. McElvy, 11 Ind. 320, 327; Louisville, etc., Co. v. 
 
 Cal. 154; People v. Turcott, 65 Cal. Falvey, 104 Ind. 409. 435. 
 
 126; Edwards v. Cary, 60 Mo. 572; * Price v. JohnsonCounty, 15 Mo. 433; 
 
 Bartling v. Behrends, 20 Neb. 211; 29 Smith v. Carr, 16 Conn. 450; Hooksett 
 
 N. W. Rep. 472. v. Amoskeag, etc., Co., 44 N. H. 105; 
 
 J Union Mutual, etc., Co. v. Buchan- Lyman v. Redman, 23 Me. 2S9; Caosc 
 
 37
 
 578 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 to the evidence in the particular case could not have misled the 
 jury, an error in stating- a legal proposition will not, as a general 
 rule, constitute available error. 1 
 
 § 649. Erroneous rulings in selecting and Impaneling the Jury 
 often Harmless — There may be a departure from the directions 
 of the statute and a disobedience of the rules of law concerning 
 the selection and impaneling of jurors and yet no available 
 error. 2 The decided weight of authority is that where a chal- 
 lenge for cause is overruled, but the party without being re- 
 quired to exhaust all of his peremptory challenges secures the 
 rejection of the juror by a peremptory challenge, there is no 
 available error, 3 but our decisions declare a different doctrine. 4 
 It is, however, held by our court that unless the party is com- 
 pelled by the ruling of the court to exercise the right of per- 
 emptorily challenging at least one juror, no available error is 
 shown. 5 We are unable to avoid the conclusion that the de- 
 cision in the case in our own reports referred to is wrong 
 for the reason that it violates the rule that where it does not 
 
 Bank v. Keene, 53 Me. 103; Sword v. 
 Keith, 31 Mich. 247; McBride v. 
 Thompson, S Ala. 650; Jeffersonville, 
 etc., Co. v. Lyon, 55 Ind. 477. 
 
 1 Morford v. Woodworth, 7 Ind. S3; 
 Rollins v. State, 62 Ind. 46; Stipp v.. 
 Spring Mill, etc., Co. 54 Ind. 16; Fitz- 
 gerald v. Jcrolaman, 10 Ind. 338; Hunt- 
 ington -'. Colman, 1 Blackf. 348; Swank 
 v. Nichols, 24 Ind. 199. 
 
 * Sage v. State, 127 Ind. 15; Hardin 
 v. State, 22 Ind. 347; Cooper v. State, 
 120 Ind. 377; State v . Mellor, 13 R. I. 
 666; Commonwealth v. Brown, 147 
 Mass. 585; State v. Merriman (So. 
 Car.), 12 S. E. Rep. 619; People v. 
 O'Brirn, SS Cal. 4S3, 26 Pac. Rep. 362; 
 Londoner v. People, 15 Col. 557, 26 
 Pac. Rep. 135; Williams v. State, 28 
 Tex. App. 301, 14 S.W. Rep.3SS; State 
 v. Rockwell (Iowa), 4S N.W. Rep. 721; 
 Smith v. Smith, 52 N. J. L. 207, 19 Atl. 
 Rep. 255; People v. ColTman, 59 Mich. 
 i, 26 N, W. Rep, 207; Babcock v. Peo- 
 
 ple, 13 Col. 515, 22 Pac. Rep. 817; 
 Green v. State, 88 Tenn. 614. 
 
 3 Blackwell v. State (Texas), 15 S. 
 W. Rep. 597; People v. Alpin, 86 Mich. 
 393, 49N.W. Rep. 14S; State v. Jackson, 
 42 La. Ann. 1170, 8 So. Rep. 297; State 
 v. Aarons (La.), 9 So. Rep. 114; State 
 v. Green, 42 La. 644, 9 So. Rep. 42; 
 Drake v. State (N. J.), 20 Atl. Rep. 
 747; State v. Brady, 107 N. C. S22, 12 
 S. E. Rep. 325; Schoeffler v. State, 3 
 Wis. 823; Burt v. Panjaud, 99 U. S. 
 1S0; Freeman v. People, 4 Denio, 9; 
 State v. Davis, 41 Iowa, 311; Wilson 
 v. People, 94 111. 299; Conway v . Clin- 
 ton, 1 Utah, 215; State v. Raymond, 
 11 Nev. 98; Mimms v. State, 16 Ohio 
 St. 22i, McGowant'. State, 9 Yerg. 184; 
 People v. Gaunt, 23 Cal. 156. 
 
 * Brown v. State, 70 Ind. 576. 
 
 6 Stephenson v. State, no Ind. 358, 
 362, distinguishing Brown v. State, 
 supra. 
 
 6 Brown v. State, supra.
 
 HARMLESS ERROR. 
 
 579 
 
 appear that some substantial right was denied a party, the judg- 
 ment can not be reversed. 
 
 § 650. Misconduct of Jurors — The general rule, as declared in 
 many cases, is that a breach of duty on the part of jurors is not 
 available as error for the reversal of the judgment, unless it was 
 of such a character as to authorize the inference or presump- 
 tion that it injured the complaining party. 1 If the alleged mis- 
 conduct operates in favor of the complaining party, he can not 
 successfully insist that the wrong of the jury shall be treated as 
 available error. 2 A party who expressly or impliedly invites 
 the misconduct is not in a situation to make the conduct of the 
 juror available for the reversal of the judgment. 3 
 
 § 651. Special Interrogatories to Jury — What Rulings are harm- 
 less although Erroneous — It is not available error to refuse to 
 submit to a jury interrogatories calling for conclusions of law. 4 
 Nor is it prejudicial error to refuse to submit interrogatories 
 calling for matters of evidence merely. 5 If it clearly appears 
 
 1 Cooper v. State, 120 Ind. 377; Mer- 
 gentheim v. State, 107 Ind. 567; City 
 of New Albany v. McCulloch, 127 Ind. 
 500, 507; Henning v. State, 106 Ind. 
 3S6; Drew v. State, 124 Ind. 9; Luck?;. 
 State, 96 Ind. 16; Achey v. State, 64 
 Ind. 56; Long v. State, 95 Ind. 481, 
 4S6; Flatter v. McDermitt, 25 Ind. 326; 
 Porter v. State, 2 Ind. 435; Stutsman 
 v. Barringer, 16 Ind. 363; Carter v. 
 Ford, etc., Co., S5 Ind. 1S0; McCarthy 
 v. Kitchen, 59 Ind. 500; Medler v. State, 
 26 Ind. 171; Whelchell v. State, 23 
 Ind. S9; Harrison v. Price, 22 Ind. 165; 
 McClary v. State, 75 Ind. 260; Morn- 
 ingstar v. Cunningham, no Ind. 328; 
 Indianapolis v. Scott, 72 Ind. 196; Riley 
 v. State, 95 Ind. 446; Henry v. Ricketts, 
 1 Cranch. C. C. 545; State v. Baker, 63 
 N. C 276; Newell v. Ayers, 32 Me. 
 334; State v. Cucuel, 31 N.J. L. 249; 
 Portis v. State, 27 Ark. 360. 
 
 2 Allen v. State. 61 Ga. 166; Medler 
 v. Dunn, 26 Ind. 171. 
 
 3 United States v. Salentine, 8 Biss. 
 C. C. 404. 
 
 4 Chicago, etc., Co. v. Ostrander, 116 
 Ind. 259; Toledo, etc., Co. v. Goddard, 
 25 Ind. 1S5; Pittsburgh, etc., v. Adams, 
 105 Ind. 151; Louisville, etc., Co. v. 
 Worley, 107 Ind. 320; Korrady v. Lake 
 Shore, etc., Co. (Ind. Sup. Ct.), 29 N. 
 E. Rep. 1069. 
 
 5 Louisville, etc., Co. v. Hubbard, 116 
 Ind. 193, 196; Trentman v. Wiley, 85 
 Ind. 33; Manning v. Gasharie, 27 Ind. 
 399; Skillen -'.Jones, 44 Ind. 136; Gates 
 v. Scott, 123 Ind. 459; Louisville, etc., 
 Co. v. Pedigo, 10S Ind. 481; Atchison, 
 etc., Co. v. Plunkett, 25 Kan. iSS; Du- 
 bois v. Campau, 2S Mich. 304; Miner 
 v. Vedder, 66 Mich. 97, 33 N. W. Rep. 
 47; Louisville, etc., Co. v. Cauley, 119 
 Ind. 142, 21 N. E. Rep. 546; Blacker v. 
 Slown, 114 Ind. 322; Heiney v. Garret - 
 son, 1 Ind. App. 54S, 27 N. E. Rep. 9S9.
 
 
 ERROR [N JUDICIAL PROCEEDINGS. 
 
 that the facts sought to be elicited by the answers could exert 
 no influence upon the final decision there is no error in refusing 
 the interrogatories, at all events, nothing more than a harmless 
 error. 1 Where immaterial or improper interrogatories are sub- 
 mitted to the jury there is no harmful error in refusing to com- 
 pel the jury to answer them. 2 There is no error in refusing to 
 submit an interrogatory that is not reasonably definite and spe- 
 cific. 3 It is not error to refuse to submit an interrogatory where 
 another has been propounded covering the same ground; 4 it 
 is, indeed, the right of the court to control the form and num- 
 ber of interrogatories, so that specific questions of fact shall be 
 fairly presented to the jury without useless repetition. 5 Per- 
 mitting leading interrogatories to be submitted to the jury is 
 not erroneous. 6 If erroneous but immaterial interrogatories 
 are submitted to a jury the error is not an influential one. 7 In- 
 terrogatories not asked in due form and at the proper time may, 
 as lias been elsewhere shown, be refused. 8 
 
 1 Indianapolis, etc., Co. v. Stout, 76 
 Ind. !(/>; Huston v. McCloskey, 76 Ind. 
 38; Mutual, etc., Co. v. Cannon, 48 
 Ind. 264; Indianapolis, etc., Co. v. 
 Rutherford, 29 Ind. 82; Donohue v. 
 Dryer, 23 Ind. 521; Gilmore v. Bright, 
 101 N. C. 3S2, 7 S. E. Rep. 751; Hab- 
 lichtel v. Yambert, 75 la. 539; Whalen 
 v. Chicago, etc., Co., 75 la. 563, 39 N. 
 W. Rep. 894; Van Horn v. Overman, 
 75 la. 421, 39 N. W. Rep. 679; Kerr v. 
 Lunsford, 31 W. Va. 659, 8 S. E. Rep. 
 _l<^; Northwestern Mutual, etc., Co. v. 
 Heimann, 94 Ind. 24; Cottrell v. Shad- 
 lej , 77 Ind. 348; Boots v. Griffiths, 97 
 Ind. 241; Chapin v. Clapp, 29 Ind. 611; 
 
 cop V. Rainier, 111 Ind. 361. 
 
 2 Town of Albion v. Hetrick, 90 Ind. 
 545; Porter v. Waltz, 10S Ind. 40; 
 Campbell v. Frankem, 65 Ind. 591. 
 
 '■'■ Morse v. Morse, 25 Ind. 156. 
 
 4 Louisville, etc., v. Kane, 120 Ind. 
 140; Nichols v. State, 65 Ind. 512; 
 Scheible v. Slagle, 89 Ind. 323; Terry 
 v. Shively,y3 Ind. 413; Ward t'.Busack, 
 
 46 Wis. 407; Schreiber v. Butler, 84 
 Ind. 576. 
 
 6 Jewell v. Chicago, etc., Co., 54 Wis. 
 610; Davis v. Town of Farmington, 42 
 Wis. 252; Louisville, etc., Co. v. Cauley, 
 119 Ind. 142, 21 N. E. Rep. 546; Cotz- 
 hausen v. Simons, 47 Wis. 103; Singer, 
 etc., Co. v. Sammons, 49 Wis. 316; 
 Rosser v. Barnes, 16 Ind. 502; Murray 
 v. Abbott, 61 Wis. 198; Missouri, etc., 
 Co. v. Ilolley, 30 Kan. 465; City of 
 Indianapolis v. Lawyer, 38 Ind. 348, 
 371. "It is not the object of the stat- 
 ute to permit many interrogatories to 
 go to the jury and certainly not to per- 
 mit the repetition of questions. The 
 statute was designed to elicit material 
 facts, not mere items of evidence." 
 Louisville, etc., Co. v. Kane, 120 Ind. 
 140. 
 
 6 Rice v. Rice, 6 Ind. 100; Ilarriman 
 v. Queen Ins. Co., 49 Wis. 71. 
 
 7 Indianapolis, etc., Co. v. Rutherford, 
 29 Ind. 82. 
 
 8 Post, § 737. " Request for the sub- 
 mission of interrogatories to the jury."
 
 HARMLESS ERROR. 
 
 581 
 
 § 652. Errors in Rulings upon Verdicts that are regarded as 
 Harmless — The general rule is that there is no available error in 
 refusing to set aside a verdict for informalities, irregularities or 
 defects that do not exert a material influence upon the final de- 
 cision of the case. 1 Where a verdict covers the value of prop- 
 erty not claimed in the complaint and the plaintiff enters a re- 
 mittitur for a sum exceeding the value of the property, the mis- 
 take of the jury exerts no influence upon the ultimate result, 
 and there is no prejudicial error in rendering judgment for the 
 plaintiff. 2 It is generally true that where the jury find for a 
 party and designate a sum upon which interest is recoverable, 
 leaving nothing to do in order to ascertain the amount of re- 
 covery but compute the interest, it is not error for the court 
 to make the computation and add the interest to the sum spe- 
 cifically named in the verdict. 3 Surplusage does not vitiate a 
 verdict, and an erroneous ruling refusing to strike out mere 
 surplusage does not constitute available error. 4 Where the in- 
 
 1 Daniels v. McGinnis, 97 Ind. 549; 
 Jones v. Julian, 12 Ind. 274; Zink v. 
 Dick, 1 Ind. App.269, 27 N. E. Rep. 622; 
 Hall v. King, 29 Ind. 205; Alexandria, 
 etc., Co. v. Painter, 1 Ind. App. Ct. 5S7, 
 2SN.E.Rep. 113; Board v. Pearson, 120 
 Ind. 426; Bartley v. Phillipps, 114 Ind. 
 189; Carver v. Carver, 83 Ind. 368; 
 North, etc., Co. v. Crayton, S6 Ga. 499, 
 12 S. E. Rep. 877; New York, etc., Co. 
 v. Gallagher, 79 Texas, 6S5, 15 S. W. 
 Rep. 694; Patry ?'. Chicago, etc., Co., 77 
 Wis. 21S; Meeker v. Gardelia, 1 Wash. 
 St. 139; Jeansch v. Lewis (S. Dak.), 48 
 N.W. Rep. 12S. See, generally, Wood- 
 ard v. Davis, 127 Ind. 172, 26 N. E. 
 Rep. 6S7; Lyons v. Planters', etc., Bank, 
 86 Ga. 485, 12 S. E. Rep. SS2; Thayer 
 v. Burger, 100 Ind. 262; State v. Wil- 
 son, 40 La. Ann. 751, 5 So. Rep. 52; 
 Harkey v. Cain, 69 Texas, 146, 6 S. W. 
 Rep. 637; Snyder v. United States, 
 H2 U. S. 216; Lincoln v. Iron Co., 103 
 U. S. 412. Ante, §§ 342, 343. 
 
 2 Perkins v. Marrs, 15 Col. 262, 25 
 Pac.Rep. 16S. See. generally, Abbott v. 
 
 Morrissette, 46 Minn. 10, 48 N.W. Rep. 
 416; Williams v. Ewart, 29 W. Va. 
 659, 2 S. E. Rep. SSi; Miles v. Edsall, 
 7 Mont. 185, 14 Pac. Rep. 701; Com- 
 monwealth v. Certain Intoxicating 
 Liquors, 148 Mass. 124, 19 S. E. Rep. 
 23; Burlingame v. Central, etc., Co., 23 
 Fed. Rep. 706; Dalrymple v. Willian s, 
 63 N. Y. 361; Cogan v. Ebden, 1 Burr, 
 
 383- 
 
 3 Buchanan v. Townsend (Texas), 16 
 S. W. Rep. 315; Clapp v. Martin. ^ 
 111. App. 438; Thames, etc., Co. v. 
 Beville, 100 Ind, 309; Gaff v. Hutchin- 
 son, 3S Ind. 341 ; McCormick v. Hickey, 
 24 Mo. App. 362; Beyer v. Soper, etc., 
 Co., 76 Wis. 14, 44 N. W. Rep. 833. 
 See contra. Silshy v. Frost, 3 Wash. 
 Ty. 38S, 17 Pac. Rep. SS7. 
 
 * Conner v. Winton, 8 Ind. 315; Dun- 
 lop v. Hayden, 29 Ind. 303; Thompson 
 v. Lassiter, 85 Ala. 223, 6 So. Rep. 33, 
 Van Meter v. Barnett, 119 Ind. $*,, 20 
 N. E. Rep. 426; Indiana, etc., Co. v. 
 Finnell, 116 Ind. 414, 19 N. E. Rep. 
 204; Louisville, etc., Co. f.Frawley, no
 
 582 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 tertion of the jury is clearly manifested by their verdict, it is 
 not error for the court to make formal amendments by supply- 
 ing omissions or the like, so as to make the verdict fully ex- 
 press the decision really reached by the jury, but not accurately 
 expressed. 1 The judge can not, however, in any case where a 
 jury trial is demandable as a matter of right so change the form 
 of the verdict as to make it embody his decision and not that 
 of the jury. 2 
 
 Tnd. iS, 29. In the case of Louisville, 
 etc., Co. v. Hart, 1 19 Ind. 273, 2S2, it was 
 said by the court: " If the matter ob- 
 jected to is immaterial, the court will 
 treat it as surplusage, and the party 
 making the motion can not, therefore, 
 be prejudiced because of the immaterial 
 matter, but if the matter objected to 
 is material then it should not be struck 
 out. And if the court should entertain 
 a motion to strike out a part of a ver- 
 dict, then the verdict would no longer 
 be the verdict of the jury, but the find- 
 ing of the court." The case of Louis- 
 ville, etc., Co. v. Flanagan, 113 Ind. 
 488, was cited in the case from which 
 we have quoted. The caption to a ver- 
 dict is surplusage and an error therein 
 is harmless. Rogers v. Overton, 87 
 
 Ind. 410; Miller v. Morgan, 143 Mass. 
 
 25- 
 
 1 Crich v. Williamsburgh, etc., Co., 
 45 Minn. 441, 48 N. W. Rep. 198; State 
 v. Knight, 46 Mo. S3; Case v. Colter, 
 66 Ind. 336; Smith v. Meldren. 107 
 Pa. St. 348; Fathman v. Tumulty, 34 
 Mo. App. 236; Ilodkins v. Mead, 119 
 N. Y. 166, 23 N. E. Rep. 559; Segelke 
 v. Finan, 48 Hun. 310; Matthewson v. 
 Stewart, 2 How. U. S. 263; Clark v. 
 Lamb, S Pick. 415; Hay v. Osterout, 
 3 Ohio, 384; Henley v. Mayor, 6 Bing. 
 100. 
 
 2 McDonald v. Union, etc., Co., 42 
 Fed. Rep. 579; Gaither v. Wilmer. 71 
 Md. 361, iS Atl. Rep. 590; Acton v. 
 Dooley, 16 Mo. App. 441, 449.
 
 CHAPTER V. 
 
 PREJUDICIAL ERROR. 
 
 § 653. To determine whether error is 
 prejudicial the entire record 
 must be examined. 
 
 654. Rulings wherein prejudicial er- 
 
 ror may exist. 
 6;:;. Mistaking the remedy. 
 
 656. Election of remedies — Waiver 
 
 of torts. 
 
 657. Ordinary and extraordinary 
 
 remedies. 
 
 655. Consequences of mistaking the 
 
 remedy — Making the error 
 available. 
 
 659. Parties to the action — Xcces- 
 
 sary and proper. 
 
 660. Necessary parties — Illustrative 
 
 cases. 
 
 661. A criterion for determining who 
 
 are necessary parties. 
 
 662. Who should be plaint ills and 
 
 who defendants — General 
 rule. 
 
 § 663. 
 
 Joinder of parties. 
 
 664. 
 
 A righl of action must exist in 
 
 
 all who join in a complaint. 
 
 065. 
 
 Pleadings — Motion to make 
 
 
 specific. 
 
 666. 
 
 Rulings on demurrer. 
 
 667. 
 
 A wrong ruling which operates 
 
 
 to exclude material facts is 
 
 
 prejudicial. 
 
 668. 
 
 Error once effectively saved is 
 
 
 sufficient. 
 
 669. 
 
 The difference between overrul- 
 
 
 ing and sustaining a demurrer 
 
 
 to one of several paragraphs 
 
 
 of a pleading. 
 
 670. 
 
 Rulings in admitting and ex- 
 
 
 cluding evidence. 
 
 671. 
 
 Conduct of the trial. 
 
 672. 
 
 Misconduct of parties and coun- 
 cil 
 
 673- 
 
 sei. 
 Interrogatories to the jury. 
 
 § 653. To determine whether Error is Prejudicial the entire Rec- 
 ord must be Examined — Whether a wrong ruling is of such a 
 prejudicial nature as to authorize or require a reversal of the 
 judgment assailed by the appeal depends, as has been else- 
 where shown, upon the influence it exerts upon the ultimate 
 decision rendered in the case. 1 If it contributes in a material 
 degree to bring about a wrong result it is a prejudicial error 
 and will be so regarded. If the ruling is wrong and is of such 
 character and influence as make it probable that it operated 
 harmfully to the party who properly specifies error, it will be 
 available for a reversal of the judgment. Whether it did prob- 
 
 1 Ante, § 590. "The ultimate ruling is decisive." 
 
 (583)
 
 584 ERROR IX JUDICIAL PROCEEDINGS. 
 
 ably work harmfully is in many instances to be ascertained 
 from an examination of the entire record, for, if the facts or 
 recitals of the record are such as authorize the inference or 
 presumption that a wrong ruling operated, to the injury of the 
 party who complains, the judgment must fall. 1 But the influ- 
 ence and effect of a wrong ruling are not ordinarily deter- 
 mined by considering the ruling itself isolated and detached 
 from other parts of the record ; on the contrary, the appellate 
 tribunal will examine the entire record, and if, from such an 
 examination, it appears that the wrong ruling did not influence 
 the ultimate decision to the injury of the complaining party it 
 will not be considered as prejudicial error. 2 In general, the 
 evidence is not regarded as part of the record proper in cases 
 where the search is made for the purpose of determining 
 whether a manifestly wrong ruling worked harm, but there are 
 cases where the evidence will be regarded as part of the record 
 even in such instances as those wherein the search is prosecuted 
 for the purpose of ascertaining whether a wrong ruling exerted 
 a prejudicial influence upon the ultimate decision. 3 
 
 § 654. Rulings wherein Prejudicial error may Exist — A prejudi- 
 cial error exists, as a general rule, where a party is wrongfully 
 deprived of a right to a trial of his cause according to the es- 
 tablished rules of law as well as where the ruling directly affects 
 a primary and substantive right. Thus, it is error to deny a 
 party the right to have the jury answer material, proper and 
 relevant interrogatories, or to deny him a trial by jury where 
 the law secures it to him, or to deny him the right to the testi- 
 
 1 See post, § 666. "A wrong ruling and not, as was argued in this case, to 
 which operates to exclude material that part only of the record which pre- 
 facts is prejudicial." cedes and includes the particular ex- 
 
 2 In Hi ggins v. Carlton, 28 Md. 115, S. ception under consideration." The 
 C. 92 Am. Dec. 666, it was said: "It validity of the conclusion is perfectly 
 has been repeatedly settled bv the de- clear when it is brought to mind that 
 cisions of this court that a judgment there are many instances where error 
 will not be reversed where it appears is effectually cured or completely obvi- 
 from the record that the appellants ated by other rulings exhibited in the 
 have not been injured by the rulings of record. 
 
 the court below, although such rulings 3 Ante, § 638. " Resorting to the evi- 
 may be erroneous. For this purpose, dence to avoid the effect of an errone- 
 it is proper to look to the whole record, ous ruling upon demurrer."
 
 PREJUDICIAL ERROR. 
 
 mony of competent witnesses, and so it is to deny a recovery 
 where he proves the existence of some primary right, and its 
 wrongful invasion, as, for instance, where a plaintiff proves a 
 verbal contract for the purchase of land, possession taken and 
 improvements made under the contract, and the court refuses to 
 enforce the contract upon the mistaken theory that the contract 
 is made voidable by the statute of frauds. It is obvious that in 
 such a work as this it is chiefly rulings directly affecting the 
 remedy and not the primary right that require consideration, 
 since a consideration of substantive or primary rights is only 
 incidentally connected with the general subject of the work. 
 But while it is true that such a work as this deals chiefly and 
 directly with rights affecting the procedure, or, as Mr. Pomeroy 
 calls them, "remedial rights," 1 still, primary or substantive 
 rights must often come under consideration in an incidental 
 way, inasmuch as it is often true that an error will be disre- 
 garded because the complaining party shows no primary or 
 substantive right. Where it appears from the record that there 
 is no right of that nature that can possibly be injuriously affected, 
 there can be no prejudicial error. In many cases the courts 
 have refused to reverse a judgment, although the errors in the 
 mode of procedure were manifest, upon the ground that the 
 record showed that there was no substantive right existing in 
 the party by whom the erroneous rulings were sought to be 
 made available. A prejudicial error may be committed where 
 a substantive right is invaded by granting a kind of relief not 
 authorized by law, as, for instance, in granting an injunction 
 where nothing more than a fugitive trespass is shown. So, a 
 prejudicial error may be committed in upholding a party who 
 pursues a wrong remedy, as, for instance, in awarding a man- 
 damus to coerce performance of an ordinary business contract 
 entered into between individual citizens. Again, prejudicial 
 error may be committed in permitting a recovery in a proceed- 
 ing of one class where it would not be error to award a recov- 
 ery in another proceeding. Thus, a party may by appeal re- 
 
 1 " Remedial righte, or rights of rem- more of these final means, or to avail 
 edv, are rights which an injured person himself of some or more of these final 
 has to avail himself of some one or equivalents." Romeroy's Remedies. 3.
 
 586 ERROR IN JUDICIAL PROCEEDINGS. 
 
 cover in a case where lie seeks to avoid an assessment for the 
 construction of a ditch, a street or a road, and yet fail in an 
 injunction proceeding. 
 
 § 655. Mistaking the Remedy — Where the common law pre- 
 vails errors in choosing the remedy much oftener occur than in 
 jurisdictions where the code system is in force. A party who 
 declared in assumpsit when the appropriate action was debt 
 could not recover at common law because his error was a ma- 
 terial one. But, while there is much less danger of mistaking 
 the remedy under the code system than there is under the com- 
 mon law, there is, nevertheless, danger of electing the wrong 
 remedy under the code system, liberal as it is and little as it 
 regards matters of form. There are many matters affecting 
 the remedy that lie beneath form and are matters of substance. 
 The declaration of the statute that forms of actions are abol- 
 ished does not abrogate the distinction between substantive 
 rights of radically different classes, nor does it entirely abrogate 
 the distinction between different classes of remedial rights. 1 It is 
 clear that a prejudicial error may occur in choosing the remedy 
 even under the liberal system created by the provisions of the 
 code, although much less likely to occur than under the com- 
 mon law rules of procedure. Remedies are and must always 
 be essentially different, no matter what system may prevail. 
 Thus, a complaint for mandate must plead a state of facts rad- 
 ically different from those required in an ordinary action for a 
 breach of contract. Even in actions of the same general class 
 
 1 In Myers v. Field, 37 Mo. 434, 441, erence to these distinctions, though in 
 
 it was said: "The distinction between the form prescribed by statute. Where 
 
 law and equity has not been abolished the petition is framed for legal redress, 
 
 by the new code of practice. Equitable the plaintiff can not be allowed to prove 
 
 rights are still to be determined accord- his equitable rights, though the facts be 
 
 ing to the doctrine of equity jurispru- stated to some extent in his petition, 
 
 dence, and in the peculiar modes which If he seeks equitable relief, the facts 
 
 are sometimes required in such cases, must be stated in such manner as to 
 
 and legal rights are to be ascertained show that he is entitled to the relief 
 
 and adjudged upon principles of law; prayed for under the former practice, 
 
 and the rules of proceeding at law are if he claims redress at law the essential 
 
 in many respects very different from elements of his cause of action must be 
 
 those which are applied to equity cases, stated with reasonable certainty and 
 
 Pleadings should be drawn up with ref- clearness'*
 
 PREJUDICIAL ERROR. 587 
 
 there must be some definite theory to which the facts pleaded 
 are applicable and relevant, for without such a theory no definite 
 and distinct issue could be framed, and without such an issue 
 no case can be properly tried. It would be impossible to de- 
 termine whether evidence is relevant or whether a judgment is 
 within the issues unless there is a definite theory outlined in 
 the pleadings so that it is rightly held, as it has often been, that 
 a pleading must proceed upon a definite theory. 1 
 
 § 656. Election of Remedies— Waiver of Torts— The long estab- 
 lished principle that a party may elect to waive a right to sue in 
 tort and sue in contract exists under the code system. 2 It is, 
 indeed, difficult to conceive how the substantive principle can 
 be abrogated without producing injustice. As long as the right 
 to elect exists, that long the question of what theory shall be 
 adopted will be an important one, exerting a very material in- 
 fluence upon the choice of remedies. This conclusion must be 
 inexorably true, for the manifest reason that in no other way 
 can the waiver be indicated than by the theory of the pleading, 
 
 1 Illinois, etc., Co. v. Slatton. 54 111. R. R. Cases, 123; Waldhier v. Hanni- 
 
 133; Michigan, etc., Co. v. McDon- bal, etc., Co., 71 Mo. 514. 
 ough, 21 Mich. 165, S. C.4Am. Rep. 2 Shelly v. Vanarsdoll, 23 Ind. 543; 
 
 466; Lake Shore, etc., Co. v. Perkins, Adams v. Sage, 28 N. Y. 103; Wilmot 
 
 25 Mich. 329; Lockwood v. Quacken- v. Richardson, 2 Keyes (N. Y.). 519; 
 
 bush, S3 N. Y. 607; Judy v. Gilbert, 77 Bixbie v. Wood, 24 N. Y. 607; Union 
 
 Ind. 96, S. C. 40 Am. Rep. 289; Mes- Bank v. Mott, 27 N. Y. 633; Mcknight 
 
 call v. Tully, 91 Ind. 96, and cases v. Dunlap, 4 Barb. 36, 42; Hinds v 
 
 cited; Moorman v. Wood, 117 Ind. Tweedle, 7 How. Pr. R. 27S, 2S1 
 
 144, 147, and cases cited; Pear- Harpending v. Shoemaker, 37 Barb 
 
 son v. Pearson, 125 Ind. 341, 344, 270; Chambers v. Lewis, 2 Hilt (N 
 
 and cases cited; Chicago, etc., Co. v. Y.), 591; Leach v. Leach, 2T. & C.(N 
 
 Bills, 104 Ind. 13; Trentman v. Neff, Y.) 657; Tryon v. Baker, 7 Lans. 511, 
 
 124 Ind. 503; Bingham v. Stage, 123 514; Roberts v. Evans, 43 Cal. 3S0; 
 
 Ind. 281, 285; First National Bank v. Gordon v. Bruner, 49 Mo. 570, 571; 
 
 Root, 107 Ind. 224; Cottrell v. .Etna Putnam v. Wise, 1 Hill, 234.240; Berty 
 
 Life Ins. Co., 97 Ind. 311; Toledo, etc., v. Taylor, 5 Hill, 577, 584; Norden : . 
 
 Co. v. Levy, 127 Ind. 168, 170, and cases Jones. 33 Wis. 600, 604; Campbell v. 
 
 cited; Louisville, etc., Co. v. Reynolds, Perkins. 8 N. Y. 430; Wallace V. 
 118 Ind. 170; Harris v. Hannibal, etc., Morss, 5 Hill, 391; Roth v. Palmer. 27 
 Co., 37 Mo. 307; Batterson v. Chicago, Barb. 652; Wigand v. Sichel, 3 Keys 
 etc., Co., 49 Mich. 184, 8 Am. & Eng. (N. Y.). 120; Morris v. Rexford, iS N. 
 
 Y.552.
 
 588 ERROR IN JUDICIAL PROCEEDINGS. 
 
 since names go for nothing, as there is but one form of action, 
 and the prayer does not give character to the pleading. Its 
 character is to be determined from its general tenor and scope. 1 
 The election to waive the tort may exert a controlling influence 
 upon the question of parties, inasmuch as where the action is 
 ex delicto parties may be severally liable, whereas in an action 
 ex contractu the liability may be joint. 2 So, the mode of stating 
 the facts may change the character of a case so as to require 
 more or different evidence, although the case may, however 
 the tacts may be stated, belong to the class of actions ex delicto. 
 Thus, in a reported case, a plaintiff sued for injury done by a 
 sow of the defendants which went upon the plaintiff's land and 
 injured his cow, but as he did not sue, as he might have done, 
 for the trespass, laying the injury to the sow as a matter of ag- 
 gravation, he lost his case because of a failure to prove the 
 vicious propensity of the sow, although he would have gained 
 it had he sued for damages resulting from the trespass. 3 A 
 mistake in the election of a remedy may bring disaster in cases 
 of a different class from those mentioned. Thus, where an in- 
 fant is sued in contract instead of in tort, the plea of infancy 
 may enable him to avoid liability, although if sued in tort the 
 plea would not have availed him. 4 The remedy sometimes 
 
 •Over v. Schiffling, 102 Ind. 191; Hunt v. Lane, 9 Ind. 24S; Silvers V. 
 City of North Vernon v. Yoegler, 103 Nerdlinger, 30 Ind. 53. 
 Ind. 314; Louisville, etc., Co. v. 3 Van Leuven v. Lyke, 1 N. Y. 515. 
 Schmidt, 106 Ind. 73; First National See, for an illustration of the conse- 
 Bank v. Root, 107 Ind. 224; Houck quences of mistaking the remedy, 
 7\ Graham, 106 Ind. 195; Neidefer v. Campbell v. Stakes. 2 Wend. 137. As 
 Chastain, 71 Ind. 363, S. C. 36 Am. illustrating the extent to which the law- 
 Rep. 19S; Reynolds v. Copeland, 71 goes in allowing incidental damages in 
 Ind. 422; Ivens v. Cincinnati, etc., Co., cases of trespass quare clausum fregit^ 
 103 Ind. 27; State v. Wenzel, 77 Ind. see Bennetl v. Mclntyre., 121 Ind. 231, 
 428. 2^y, Rasor v. Quails. 4 Blackf. 286; 
 
 2 The rule as to contracts is stated in Taylor v. Cole. 3 Term R. 292; Daven- 
 
 the eases of Bledsoe v. Irvin, 35 Ind. port :•. Russell, 5 Day, 145; Bennett v. 
 
 293; Gilbert v. Allen, 57 Ind. 524; Allcott, 2 Term. R. 166. 
 
 Boorum v. Ray, 72 Ind. 151. The rule 4 Campbell v. Stakes, 2 Wend. 137; 
 
 in cases of torts is shown in the cases Studwell :\ Shapter, 154 N. Y. 249; 
 
 • it Brady :•. Ball, 14 Ind. 317; Ameri- Fish v. Ferris, 5 Duer. 49; Wallace v. 
 
 cm Express Co. v. Patterson. 73 1 ml. Morss, 5 Hill, 391; W r alker v. Davis, 1 
 
 430; Fleming v. McDonald, 50 Ind. 278; Gray, 506. See, generally, Vasse v.
 
 PREJUDICIAL ERROR. 589 
 
 exerts an important influence upon the defense of the statute of 
 limitations, for it may he prejudicial error to apply a statute 
 governing one class of actions to actions of a different class. 1 
 Thus, a party sued as a trustee may be unable to make the 
 statute of limitations available, whereas if sued upon a promise 
 the plea of the statute would be good. 2 A defense founded 
 upon a discharge in bankruptcy may be good in an action ex 
 contractu and yet not available in an action ex delicto. But 
 where the relationship is shown to be a fiduciary one, the na- 
 ture of the remedy is not controlling. A right to a set-off may 
 exist where the action is in contract, but not where the action is 
 in tort. 3 Where a party elects to waive the tort and sue upon 
 the contract he may let in the claim of the defendant, whereas 
 he might by an action in tort have recovered a judgment against 
 which the right of exemption could not be made available. 4 If 
 an election is once effectively made it is irrevocable, and a judg- 
 ment rendered is conclusive upon the same facts against the 
 plaintiff, but this rule does not always apply to a plaintiff who 
 suffers defeat solely upon the ground that he did not pursue the 
 appropriate remedy. 5 
 
 § 657. Ordinary and Extraordinary Remedies— The rule that 
 where an ordinary remedy will afford full and complete relief 
 
 Smith, 6 Cranch. 225, 230; Elwcll v. ner v. Cammack. 37 Iowa, 642; Schou- 
 
 Martin, 32 Vt. 217; Towne V. Wiley, 23 ton v. Kilmer, 8 How. Pr. 527. In 
 
 Vt. 354; Root v. Stevenson, 24 Ind. Nowling v. Mcintosh, So. Ind. 593. the 
 
 115; Carpenter v. Carpenter, 45 Ind. doctrine stated in the text is recognized, 
 
 142; Rice v. Bover. 10S Ind. 472. but it was held that the tort was not 
 
 1 Huffman t-.Hughlett.ii Lea(Tenn.), waived. The court cited the cases of 
 549; McComhs v. Guild, 9 Lea, Si. Patterson v. Crawford. 12 Ind. 241; 
 See, generally, Lane v. Boicourt, 12S Patterson v. Prior, iS Ind. 440; Jones 
 Ind. 420. V. Gregg. 17 Ind. S4; Morford :•. White, 
 
 2 Wilson v. Brookshire, 126 Ind. 497; 53 Ind. 547; Cooper v. Helsabeck, 5 
 Cunningham v. McKindley, 22 Ind. 149; Blackf. 14. 
 
 Albert v. State, 65 Ind. 413; Raymond B Bulklej v. Morgan, 46 Conn. 393; 
 
 v. Simonson, 4 Blackf. 77; Smith v. Bailey :■. Hervev. 135 Mass. 172; Mol- 
 
 Callowav, 7 Blackf. S6; Churchman v. ler v. Tuska, S7 NY. 166; Dibblee v. 
 
 City of Indianapolis, no Ind. 259. Sheldon, 10 B latch. 17S; Farwell v. 
 
 3 Allen v. Randolph, 48 Ind. 496; Myers, 59 Mich. 179; Voorhees v. Earl, 
 Chambers v. Lewis, 11 Abb. Pr. 206. 2 Hill, 2SS; Goss v. Mather, 2 Lans. 
 
 * Davis v. Henson, 29 Ga. 345; War- 2S3; Strong ;•. Strong, 102 N. Y. 69, 73.
 
 590 
 
 ERROR IN JUDIC] vl. PROCEEDINGS. 
 
 rt can not be made to an extraordinary one is almost as 
 potent under the code procedure as it was under the old com- 
 mon law and chancery systems. A party who states a cause 
 of action entitling him to only ordinary relief can not, upon 
 that cause of action, obtain extraordinary relief. 1 Where the 
 ordinary remedy is adequate and efficacious that remedy must 
 be pursued. 2 The general doctrine stated is, perhaps, more 
 frequently applied in cases where injunctions are sought 
 than in any other class of cases, and it is uniformly held that 
 where an ordinary remedy will afford complete and prompt re- 
 lief an injunction will not be awarded. 3 The redress by in- 
 
 1 We are not speaking of legal and 
 equitable remedies, we may say, to pre- 
 vent possible misconception, but of 
 ordinary and extraordinary remedies. 
 
 2 " It is not enough that there is a rem- 
 edy at law; it must be plain and ade- 
 quate, or in other words, as practical 
 and efficient to the ends of justice and 
 its prompt administration, as the remedy 
 in equity." By the court in Watson v. 
 Sutherland, 5 Wall. 74. This doctrine 
 has been adopted and enforced by our 
 own and other courts. English v. 
 Smock, 34 Ind. 115, 124, S. C. 7 Am. 
 Rep. 215; Elson v. O'Dowd, 40 Ind. 
 300, 302; Clark v. Jeffersonville, etc., 
 Co., 44 Ind. 24S; Thatcher v. Humble, 
 67 Ind. 444; Spicer v. Hoop, 51 Ind. 
 365, 370; Bonnell v. Allen, 53 Ind. 130; 
 Bishop -'. Moorman, 98 Ind. 1,4; Denny 
 V. Dennv. 113 Ind. 22, 26; City of Hart- 
 ford v. Chipman, 21 Conn. 4SS; Scott v. 
 Scott, 33 Ga. 102; Bunce v. Gallagher, 5 
 Blatchf. 4S1; Hunt v. Danforth, 2 Curt. 
 (C. C.) 592; Witter v. Arnett, 8 Ark. 
 57; Mc Daniel v. Lee. 37 Mo. 204; 
 Morris v. Thomas, 17 111. 112. The 
 Supreme Court of Pennsylvania holds 
 a very liberal doctrine upon the general 
 subject, for it has adjudged that it is 
 sufficient to authorize the employment 
 of an equitable remedy where it appears 
 to be the more convenient one. Bier- 
 bowers' Appeal. 107 Pa. St. 14; Kirk- 
 
 patrick v. M'Donald, 11 Pa. St. 387; 
 Appeal of the Brush Electric Co., 114 
 Pa. St. 574, 585. The authorities to 
 which we have referred are generally 
 directed to the question of the right to 
 resort to an ordinary equitable remedy 
 where there is some legal remedy, but 
 they all have an important bearing upon 
 the general question of the right to re- 
 sort to an extraordinary remedy where 
 the ordinary remedy is inadequate or 
 inefficacious. 
 
 3 Sparling v. Dwenger, 60 Ind. 72; 
 McQuarrie v. Hildebrand, 23 Ind. 122; 
 White Water Valley, etc., Co. v. Com- 
 egys, 2 Ind. 469; Laughlin v. City of 
 Lamasco, 6 Ind. 223; Indianapolis, etc., 
 Co. v. City of Indianapolis, 29 Ind. 245; 
 Centreville, etc., Co. v. Barnett, 2 Ind. 
 536; Bolster v. Catterlin, 10 Ind. 117; 
 Hartman v. Heady, 57 Ind. 545; Smith 
 v. Goodknight, 121 Ind. 312; Caskey v. 
 City of Greensburgh, 78 Ind. 233; Rick- 
 etts v. Spraker, 77 Ind. 371; Hendricks 
 v. Gilchrist, 76 Ind. 369; Bass v. City 
 of Fort Wayne. 121 Ind. 389; Marshall 
 V. Gill, 77 Ind. 402, and cases cited. 
 Sims v. City of Frankfort, 79 Ind. 446, 
 and cases cited. Littleton v. Smith, 
 119 Ind. 230; Terre Haute, etc., Co. v. 
 Soice, 12S Ind. 105, and cases cited. 
 Pearson v. Pierson, 12S Ind. 479; 
 Cooper v. Hamilton, S Blackf. 377; 
 Thatcher v. Humble, 67 Ind. 444; Bar-
 
 PREJUDICIAL ERROR. 
 
 junction is of an extraordinary character, and because it is 
 such, and not simply because it is an equitable remedy, resort 
 to it is forbidden where an ordinary remedy properly pursued 
 would yield all the relief the party is entitled to either in a 
 court of conscience or a court of law. Some of the cases, we 
 venture to say, go rather too far in the direction of holding 
 that the line between suits in equity and actions at law is as 
 broad as it was before the adoption of the code system, for 
 where the facts are well and fully stated the court will apply 
 the proper remedy, by administering either legal or equitable 
 rules as the facts stated may require, but this does not imply 
 that a party can plead facts entitling him to a remedy of one 
 class and secure a remedy of a radically different class. 1 He 
 can not make a case of one class and secure relief grantable 
 in a case belonging to a class altogether different. Thus, a 
 party who states facts entitling him to sue for a breach of con- 
 tract does not state a cause of action entitling him to relief by 
 injunction. 2 It happens not unfrequently that parties fall into 
 fatal error by instituting proceedings for a writ of mandate 
 where the appropriate remedy is an ordinary action for dam- 
 ages resulting from a breach of contract. 3 Parties mistake 
 
 agree *'. Cronkhitc, 33 Ind.192; Schwab for the purpose of showing the various 
 v. City of Madison, 49 Ind. 329; Dun- applications of the rule. 
 can :\ I lollidaysburgh, etc., Co., 136 l Morgan v. Lake Shore, etc., Co. 
 Pa. St. 478; Hagerty v. Lee (N. J.), 21 (Ind.). 28 N. E. Rep. 54S. 
 Atl. Rep. 933; Turner V. Norton, 31 2 Ricketts V. Speaker. 77 Ind. 371. 
 111. A. pp. 423; Shepherd T'. GrotT, 34 W. 3 State :■. Trustees, etc., 114 Ind. 389; 
 Va. 123. 11 S.E. Rep.997; Spitz v. Ker- Marshall v. State, ] Ind. 72; Harrison 
 foot, 42 Mo. App. 77; Steinau v. Cin- School Tp. v. McGregor, 96 [nd. [85; 
 cinnati, etc., Co. (Ohio), 27 N. E. Rep. Board v. 1 licks, 2 Ind. 527; Hoard v. 
 ^4 q ; Salt-bur- Gas Co. v. Borough, State. 11 Ind. 205; Louisville, etc., Co. 
 etc., 13S Pa. St. 250, 20 Atl. Rep. 844; v. State, 25 [nd. 177; State v. Board, 63 
 Hemslev v. Myers, 45 Fed. Rep. 283; Ind. 407: Board v. State. 38 Ind. 193, 
 Thompson v. Weeks, 32 111. App. 042; [96; State v. Board, 45 Ind. 501 ; Shelby 
 Thomas v. Musical, etc., Union, 121 X. Tp. v. Randies, 57 Ind. 390; Hollidayv. 
 Y. 45; Bodman v. Lake Fork, etc., Co*., Henderson, 67 Ind. 103; State v. Snod- 
 132111.431); Diffendal v. Virginia, etc., grass, 98 Ind. 546; State v. Zanesville, 
 Co., S6 Va. 459. We have cited these etc.. Co.. [6 Ohio St. 308; State v. Pat- 
 cases not so much for the purpose of terson, etc., Co., 43 X.J. L. 505; State 
 supporting our statement of the general v. Republican River, etc., Co.. 20 Kan. 
 rule (for that is so firmly settled as to 404; People V. Dulanev, 96 111. 
 need no support from decided cases) as Collett v. Allison (Oki.), 25 Pae. Rep.
 
 ■ r )92 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 their remedy in some instances by selecting the wrong remedy 
 although both remedies are extraordinary ones. Thus, a party 
 claiming an office mistakes his remedy when he seeks posses- 
 sion or control of the office by a suit for injunction instead of 
 by an information in the nature of a quo warranto} In a sim- 
 ilar class of cases, that of attacks upon corporate existence, 
 parties mistake their remedy by attacking the existence of the 
 corporation collaterally, or by adopting some other remedy than 
 quo warranto, which is in all such cases the appropriate remedy. 2 
 On the other hand, fatal mistakes are sometimes made by pro- 
 ceeding by information in the nature of a quo warranto, in 
 cases where the appropriate remedy is an ordinary action to 
 recover damages for injury resulting from an invasion of a 
 mere private right, as, for instance, in the case of a trespass 
 upon land. 3 
 
 516; People v. Board, 60 Hun. 4S6, 5S4, 
 15 N.Y. Supp. 30S. Where there is an 
 adequate remedy by appeal a party can 
 not have a writ of mandamus. White 
 
 Mich. 72, S. C. 51 Am. Rep. SS; Frey 
 v. Michie, 6S Mich. 323. 
 
 2 Bateman v. Florida, etc., 26 Fla. 423, 
 8 So. Rep. 51; State v. Bailey, 16 hid. 
 
 7'. Burkett, 119 Ind. 431; State v. Board, 46; Danville, etc., Co. v. State, 16 Ind. 
 
 45 Ind. 501. As illustrating the differ- 
 ence between actions for a breach of 
 contract and an action to compel the 
 specific performance of duty by an of- 
 ficer having money in his hands due 
 
 456; State v. Town of Tipton, 109 
 Ind. 73; Albert v. State, 65 Ind. 413; 
 Brookville & Greensburgh Turnpike, 
 etc., Co. v. McCarty, 8 Ind. 392; 
 Baker v. Neffj 73 Ind. 6S; Logan v. 
 
 the petitioner, see Ingerman v. State, Vernon, etc.. Co., 90 Ind. 552; State v 
 
 128 Ind. 22^. 
 
 1 Beal v. Ray. 17 Ind. 554; Case v. 
 State. 69 Ind. 46; McGee v. State, 103 
 Ind. 444: Reynolds v. State, 61 Ind. 
 392; Gass v. State, 34 Ind. 425; Griebel 
 
 Woodward, S9 Ind. no; State v. Beck, 
 Si Ind. 500; North v. State, 107 Ind. 
 356; Barren Creek, etc., Co. v. Beck, 
 99 Ind. 247; Western, etc., Co. v. Cen- 
 tral, etc., Co., 116 Ind. 229; Cincinnati, 
 
 v. State, in Ind. 369, 12 N. E. Rep. 700; etc., Co. v. Clifford, 113 Ind. 460; Jus- 
 
 Osborne v. State, 12S Ind. 129, and 
 eases cited. Williams V. State, 69 
 Texas, 368, 6 S. W. Rep. 845; State :•. 
 Owens, 63 Texas, 261; State V. Mec- 
 han, 45 N. J. Law, 189; Davidson v. 
 State, 20 Fla. 784; Osgood v. Jones, 
 \. II. 543; French t'. Cowan, 79 Me. 
 426; Tarbox v. Sughrue. 36 Kan. 225: 
 State v. Board, 39 Kan. 85, 19 Pac. 
 Rep. 2; Collins r\ I luff, 63 Ga. 207; 
 People v. Waite. 70 111. 25; Territory 
 v. Haxhurst, 3 Dak. 205; State v. Stein, 
 13 Neb. 529; Farrington v. Turner, 53 
 
 sen v. Board, 95 Ind. 567; White v. 
 State, 69 Ind. 273; Covington, etc., 
 Plank Road Co. v. Moore, 3 Ind. 510; 
 State v. Trustees, etc., 5 Ind. 77; Stoops 
 v. Greensburgh, etc., Co., 10 Ind. 47; 
 President, etc., v . Hamilton, 34 Ind. 506; 
 John v. Farmers, etc., Bank, 2 Blaekf. 
 367, S. C. 20 Am. Dec. 119; Williams 
 -•.Citizens Ry.Co. (Ind.), 29 N. E. Rep. 
 408. 
 
 3 State v. Kill Buck Turnpike Co., 38 
 Ind. 71; People V. Hillsdale, etc., Co., 
 2 Johns. 190.
 
 PREJUDICIAL ERROR. 
 
 
 § 658. Consequences of Mistaking the Remedy — Making the Er- 
 ror Available — It seems quite clear that where there is a radi- 
 cal mistake in electing a remedy, there is an influential error 
 affecting the final decision in the particular case. We suppose, 
 however, that a mistake in the remedy is not always available 
 as error unless tin- question is properly made and saved in the 
 trial court. This conclusion is in harmony with the general 
 principle that where parties proceed upon a definite theory in 
 the court below they will be held to that theory on appeal, 1 and 
 it is also in strict and close harmony with the general rule that 
 questions not presented to the trial court will be deemed 
 waived. 2 The doctrine we state has been applied to a case 
 wherein no objection was made to the remedy. 3 The rule under 
 the old system, where the line was closely drawn between the 
 jurisdiction of the courts of chancery and the courts of law and 
 each inch of borderland as stoutly fought for as was ever a dis- 
 puted borderland between hostile tribes, was that if no objec- 
 tion was made in the court of original jurisdiction none could 
 be successfully made on appeal, 4 and certainly the rule should 
 
 King, 6 X. Y. 147; Cox v. James. 45 
 X. Y. 557; Green v. Milbank, 3 Abb. 
 New Cases, 13S; Pani v. Vilmar, 54 
 How. Pr. 235. The rule proceeds upon 
 the basis that parties may by their mu- 
 tual assent litigate their differences in 
 
 1 Ante, Chapter XXIV, "Holding 
 parties to trial court theories." 
 
 2 Ante, Chapter XXIII, " Questions 
 that may be first made on appeal." 
 
 3 In the case of Town of Mentz v. 
 Cook, 10S N.Y. 504, 15 X. E. R. 541, the 
 plaintiff filed a complaint for an injunc- 
 tion, the appellant did not by answer or 
 demurrer challenge his right to an in- 
 junction in the trial court, but he did 
 challenge it on appeal, and the court held 
 that the appellant's position was unten- 
 able, saying: "The answer admitted the 
 authority of the chosen forum to deter- 
 mine the issues presented and made no 
 efforts to withdraw them from that tri- 
 bunal. It appears to be settled lu a 
 very general concurrence of authority 
 that a defendant can not when sued in 
 equity avail himself of the defense that 
 an adequate remedy at law exists un- 
 less he pleads it in his answer. Gra- 
 din v. Le Roy, -' Paige, 501 >: Le 
 Roy -'• Piatt, 4 Paige. 77; Truscott v. 
 
 38 
 
 a court of equity, where the assent of 
 the defendant if withheld might induce 
 the court to refrain from the exercis 
 its jurisdiction." The case from which 
 we have quoted is approved in the case 
 of Buffalo, etc., Co. r. Delaware, etc.. 
 Co. (X. Y.), 29 X. E. Rep. 121. and its 
 doctrine extended to a case where the 
 defendant failed to object in the trial 
 court to the remedy of mandamus 
 adopted by the plaintiff. It was said: 
 " Tin- objection not having been taken 
 by answer or on the trial is not avail- 
 able in this court." 
 
 1 Amis v. Myers, id How. (U 
 492,493; Bank of Utica v. Mersereau, 3 
 Barb. Ch. 52S; Cummings v. Mayor, 
 11 Paige, 596; Creeley v. Bay State.
 
 594 ERROR INJUDICIAL PROCEEDINGS. 
 
 be no less liberal in favor of the rightful exercise of jurisdic- 
 tion under the code system which goes so far towards breaking 
 down all distinctions. It is, as we believe, safe to say that the 
 general rule is, that where the wrong remedy is chosen and no 
 objection is interposed in the trial court at any stage of the pro- 
 ceedings, the presumption is that the parties assented to the 
 theory that the remedy adopted was the appropriate one. This 
 general rule can not, however, apply where there is no general 
 jurisdiction of the subject of the controversy, or no right in any 
 case to administer the remedy selected. If, for instance, a 
 court has no right in any case to entertain jurisdiction in quo 
 warranto proceedings, silence would not preclude a party lrom 
 successfully making the objection on appeal. This general 
 doctrine would also be controlling where a court is expressly 
 inhibited from entertaining jurisdiction in cases where consti- 
 tutional questions are involved, and in cases where actions of a 
 designated class are expressly and imperatively excluded from 
 its jurisdiction. It would not, however, prevail where there is 
 general jurisdiction of the subject and the only error or irregu- 
 larity is in the election of one of several of the remedies which 
 the court has jurisdiction to administer. 
 
 § 659. Parties to the Action — Necessary and Proper — The sub- 
 ject of parties to actions is one of such wide extent that we can 
 
 etc., Co., 103 Mass. 514; Sexton v. Pike, jection of this kind should have been 
 
 13 Ark. 193. See, also, Parker v. Win- made on demurrer, or at least should 
 
 nipiseogee Co., 2 Black (U. S.), 545, 551; have been specially relied upon in the 
 
 Hipp v. Babin, 19 How. (U. S.), 271, answer, and not raised for the first time 
 
 277. 27S. In Sexton v. Pike, supra, at the hearing upon pleadings which 
 
 it was said: "The objection here that suggest no such defense." In Cum- 
 
 there was full, adequate and complete ming v. Mayor, supra, Chancellor Wal- 
 
 remedy at law, is made too late, as it worth said: "I am inclined to think 
 
 does not appear to have been raised or the complainants could have recovered 
 
 insisted upon at any time in the court at law upon this contract, and that if 
 
 below, either upon demurrer, in the. an- that objection had been taken at the 
 
 swer or otherwise at the hearing." The proper time it would have been fatal. It 
 
 Supreme Court of Massachusetts, in was too late, however, to ask the court 
 
 Creeley v. Bay State, etc., Co., supra, to turn them around to a new suit at 
 
 uses this language: "The objection the hearing, after the defendants had 
 
 that the plaintiff has a complete and ad- suffered them to go to the expense of 
 
 equate remedy at common law, even if taking proofs without objection." 
 well founded, comes too late. An ob-
 
 PREJUDICIAL ERROR. 595 
 
 not give it a very full discussion, nor is it to be expected that 
 such a subject will be fully discussed in a work of this charac- 
 ter, but it is nevertheless necessary to give it some considera- 
 tion inasmuch as one great source of prejudicial error would 
 otherwise be unnoticed. In what follows upon the subject of 
 parties we are to be understood as referring to parties in the 
 court of original jurisdiction, for we have elsewhere discussed 
 the subject of parties in the appellate tribunal. 1 It may be said 
 at the outset that where a necessary party is not brought into 
 the case, and the question is properly made, 2 the failure to 
 bring in such a party is generally such an error as will require 
 a reversal of the judgment. There is, however, a difference 
 between necessary and proper parties, and this difference is a 
 radical one exerting a very important influence in procedure. 
 Necessary parties must, whenever their presence is approprL 
 ately requested, be brought into court, and when not in court 
 an objection founded upon their absence will generally prevail, 
 but it is seldom prejudicial error to refuse to sustain an objec- 
 tion because of the absence of proper parties, although it is 
 sometimes prejudicial error to deny a request to make proper 
 parties. It is never error to join proper parties, since one of 
 the great objects of the code is to secure a complete adjudica- 
 tion of all controversies relating to the same subject in one ac- 
 tion or suit in all cases where it can be appropriately or prop- 
 erly accomplished. 3 That necessary parties must be made, and 
 
 1 Ante, Chapter VII, "Parties." Masters v. Templeton, 92 Ind. 447; 
 
 1 It is to be observed that the objec- Searle v. Whipperman, 79 Ind. 424; 
 
 tion that the necessary parties are not Hampson v. Fall, 64 Ind. 382; Quill v. 
 
 before the court must be made in the Gallivan, 10S Ind. 235; Bundy v. Cun- 
 
 mode prescribed by law or it will be ningham, 107 Ind. 360; Stockwell v. 
 
 waived. There are few, if any, subjects State, 101 Ind. 1, and cases cited; Hoes 
 
 upon which the doctrine of waiver ex- V. Boyer, 10S Ind. 494; Ulrich v. Dris- 
 
 erts a greater influence. chell, 88 Ind. 354, and authorities cited; 
 
 8 It has been held in many cases that Roberts V. Abbott, 1 27 Ind. S3; Horn 
 
 the code adopts the chancery rule, and V. Indianapolis, etc., Bank, 125 Ind. 
 
 it is also held that it somewhat enlarges 381,390; Woodworth v. Zimmerman, 
 
 the rule. The reports abound incases 92 Ind. 349, and cases cited; Ballew ;. 
 
 upon the subject, and we have collected Roller, 124 Ind. 557, 558, and 
 
 a few showing the various applications cited; McCaffrey v. Corrigan, 491ml. 
 
 that have been made of the doctrine. 175. See. generally, upon the subject 
 
 Adair v. Mergentheim, 114 Ind. 303; of settling a controversy in one suit.
 
 >96 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 thai proper parties may be made, is a general rule easily stated, 
 but it is not easily applied in actual practice. The difficulty is 
 in determining who are and who are not necessary parties. It 
 may be said in a general way that if no judgment or decree can 
 be rendered without the presence of designated persons they 
 are necessary parties to the suit or action, 1 but that when some 
 judgment or decree can be rendered complete and effective as 
 to the parties in court, other persons, although they may be 
 proper parties, 2 are not necessary parties to the suit or action. 
 Thus, a mortgagor who has sold his equity of redemption is a 
 proper but not a necessary party to the suit to foreclose the 
 mortgage where no personal judgment is sought. 3 
 
 Griffin v. Hodshire, 119 Ind. 235, 243; Martin v. Noble, 29 Ind. 216; Daven- 
 Henderson v. Henderson, 3 Hare's Ch. port v. Barnett, 51 Ind. 329; Goodall v. 
 too, 115; Bramblett v. McVey (Ky.), 15 Mopley, 45 Ind. 355; Trayser v. Trus- 
 
 S W. Rep. 49; Hausmelt v. Patterson, 
 12 1 N.Y. 349, 26 X.E. Rep. 937; Albere 
 v. Kingsland, 13 N. Y. Supp. 794; 
 Weaver V. Van Akin, 77 Mich. 58S, 43 
 N. W. Rep. 10S1; First Nat. Bank v. 
 Hummel, 14 Col. 259, 23 Pac. Rep. 9S6; 
 Cape Girardeau, etc., Co.r;. Hatton, 102 
 
 tees, etc., 39 Ind. 556; McKernan v. 
 Neff, 43 Ind. 503; Persons v. Alsip, 2 
 Ind. 67; West v. Shryer, 29 Ind. 624; 
 yEtna Life Ins. Co. v. Finch, 84 Ind. 
 301; Fitzpatrick v. Papa, 89 Ind. 17; 
 Hagan v. Walker, 14 How. (U. S.) 29; 
 Williams v. Banhead, 19 Wall. 563; 
 
 M.». 45; Myers v. Duabenbiss, 84Cal. 1, Shellenbarger v. Biscr, 5 Neb. 195; 
 23 Pac. Rep. 1027; Stallings v. Barrett, Chambers v. Nicholson, 30 Ind. 349; 
 
 26 So. Car. 474, 2 S. E. Rep. 4S3; Chris- 
 tian v. Atlantic, etc., Co., 133 U. S. 233; 
 Lieb v. Lichtenstein, 121 Ind. 483. 
 
 1 Pattison v. Shaw, 6 Ind. 377; Mack 
 7 . (i rover, 12 Ind. 254; Masters v. Tem- 
 pleton, 92 1ml. 447, 451; Wright v. Bun- 
 
 Meredith v. Lackey, 14 Ind. 529; Sum- 
 ner v. Coleman, 20 Ind. 4S6; Wright 
 v. Field, 7 Ind. 376; Crawford v. Crock- 
 ett, 55 Ind. 220; Crouse v. Holman, 19 
 Ind. 30. 
 
 3 Burkham v. Beaver, 17 Ind. 367; 
 
 ,lv. 11 Ind. 39S. In Bittinger v. Bell, 65 Petrv v. Ambroshcr, 100 Ind. 510, 512; 
 Ind. 445, 452, the court said: "The Shaw v. Hoadley, S Blackf. 165; Brown 
 persons who ought to be ami must be v. Stead, 5 Simons, 535; Swift v. Ed- 
 made defendants under the code, as we son, 5 Conn. 153; Stevens v. Campbell, 
 construe it, are the parties in interest 21 Ind. 471; Davis v. Hardy, 76 Ind. 
 adverse to the plaintiff, an interest in- 272; W'cst t\ Miller, 125 Ind. 70, citing 
 d in the issues, and who of neces- Bennett v. Mattingly, no Ind. 197; 
 sit v will be and must be affected by the Watts v. Julian, 122 Ind. 124; Ham- 
 judgment in the cause. So, also, any mons v. Bigelow, 115 Ind. 363; Gas- 
 in, who is a necessary party to a kell V. Viquesney, 122 Ind. 244, 250; 
 complete determination or settlement Dailey r. Kinsler (Neb.), 47 N.W. Rep. 
 
 of the issues involved, must by the let- 
 • f the statute be made a defendant 
 to the action." The court cited New- 
 comb v. Horton, 18 Wis. 566. 
 
 'Greenup v. Crooks, 50 Ind. 410; 
 
 1045; Gruber v. Baker, 20 Nev. 453, 23 
 Pac. Rep. S5S; DeForest --. Thompson, 
 40 Fed. Rep. 375; Cline v. Inlow, 14 
 Ind. 419.
 
 PREJUDICIAL ERROR. 
 
 •V.i 7 
 
 § G60. Necessary Parties — Illustrative Cases — In the preceding 
 
 paragraph we roughly outlined the difference between neces- 
 sary and proper parties, but the outline given is hardly distinct 
 and full enough to answer our purpose or convey an adequate 
 conception of the subject of prejudicial errors committed in 
 rulings respecting parties. To till out the outline it seems nec- 
 essary to refer to the decisions somewhat in detail. It may be 
 said, in the beginning, that the real party or parties in interest 
 must be before the court either as plaintiffs or as defendants ; 
 when parties in interest will not join as plaintiffs they may be 
 made defendants. 1 The general rule upon the subject of the 
 real party in interest may be said to be this : The person en- 
 titled to receive the money or property recovered in the action 
 or suit is the real party in interest. There are exceptions to 
 this general rule, notably that created by the rule that the trus- 
 tee of an express trust may sue in his own name. 2 But where 
 the ordinary relation of principal and agent exists the former 
 is the real party in interest and must sue ; the agent is not the 
 trustee of an express trust within the meaning of the code. 3 
 
 1 Hill v. Marsh, 46 Ind. 21S; Wall v. E. Rep. 888; Anderson v. Wyant, 77 
 
 Galvin, So Ind. 447; Shoemaker v. Iowa, 49S, 42 N. W. Rep. 382; Insur- 
 
 Board, 36 Ind. 175; Sourse v. Marshall, ance Co. of North America v. For- 
 
 23 Ind. 194; Blair v. Shelby Co. Asso- cheimer, 86 Ala. 541, 5 So. Rep. S70; 
 
 ciation, 28 Ind. 175. As to who is to be First Baptist Church v. Branham, 90 
 
 regarded as a real party in interest, see Cal. 22, 27 Pac. Rep. 60; Hewitt v. 
 
 Jamison v. Jarrett, 4 Ind. 1S7; Bird v. Young (Iowa), 47 N. W. Rep. 10S4; 
 
 Lanius, 7 Ind. 615; Devol v. Mcln- Filley v. Walker, 27 Neb. 506, 44 N. 
 
 tosh, 23 Ind. 529; Cross. v. Tuesdale, 28 W. Rep. 737; Stuckey v. Fritsche, 77 
 
 Ind. 44; David v. Calloway, 30 Ind. 112; Wis. 327, 46 N. W. Rep. 59; Goodsell 
 
 Matthews v. Ritenour, 31 Ind. 31; V. Western Union Tel. Co., 9 X. V. 
 
 Miller v. Billingsly, 41 Ind. 4S9; Pot- Supp. 425; Millard v. Togrini, 19 Nev. 
 
 ter v. Smith, 36 Ind. 231, 236; Frenzel 133, 7 Pac. Rep. 279. 
 
 v. Miller, 37 Ind. 1; Durham v. Hall, 2 Wolcott v. Standley, 62 Ind. 19S; 
 
 67 Ind. 123; Board v. Jameson, S6 Ind. Holmes v. Boyd, 90 Ind. ^^2; Rinker 
 
 154; Pixies- v. Nan Nostern, IOO Ind. v. Bissell, 90 Ind. 375; Waddle :•. Ilar- 
 
 34; Smock v. Brush, 62 Ind. 156; Raw- beck, 33 Ind. 231; Dix v. Akers, 30 Ind. 
 
 lings v. Fuller, 31 Ind. 255; Peek v. 431; Weaver v. Trustee, etc., 28 Ind. 
 
 Sims, 120 Ind. 345; Morningstar v. 112; Musselman v. Cravens, 47 Ind. 1; 
 
 Cunningham, no Ind. 328; Bostwick Landwerlen V. Wheeler. 106 Ind 
 
 w.Bryant, 1 13 Ind. 448; Lane v.Duchac, 526; Heavenridge v. Monday, 34 Ind. 
 
 73 Wis. 646, 41 N.W. Rep. 962; Herron 28; /Etna Ins. Co. t> .Baker, 71 Ind 
 
 v. Cole, 25 Neb. 692, 41 N. W. Rep. 765; 'Rawlins v. Fuller, ;,i Ind. 25;; 
 
 Barger v. Hoover, 120 Ind. 193, 21 N. Minturn v. Farmers, etc., Co.,
 
 598 ERROR IN JUDICIAL PROCEEDINGS. 
 
 The rule that an agent can not sue upon a contract made by 
 him in his representative capacity does not apply where he has 
 ounted to his principal for the claim and satisfied all de- 
 mands of the principal growing out of the transaction, for the 
 reason that in such a case the agent becomes the equitable 
 owner of the claim. 1 An apparent exception to the general 
 rule that the action must be prosecuted in the name of the real 
 part}- in interest is found in the cases which hold that a person 
 who has possession of property under a contract to answer to 
 the owner for all injury it may sustain while in his possession, 
 may maintain an action against the wrong-doer who injures it ; 
 but this is an apparent and not a real exception, inasmuch as 
 the custodian of property in such a case is the person primarily 
 and directly injured, and, as such, he is truly the real party in 
 interest. 2 Upon the same general principle which requires 
 that an action be prosecuted in the name of the real party in 
 interest, it must be held that all who have adverse interests in 
 the subject of the controversy that may be injuriously affected 
 by the judgment, must be before the court. This is true whether 
 the subject of the controversy is money, personal property or 
 land. 3 The rule is that where a decree is sought against land 
 the owner of the land at the time the suit is commenced is a 
 necessary party. Thus, the owner of the property is a neces- 
 sary party to a suit to foreclose a mechanics' lien, 4 and so, also, 
 is the owner of the equity of redemption a necessary party to 
 a suit to foreclose a mortgage. 5 So, in proceedings in parti- 
 
 498; Grinnel v. Schmidt, 2 Sandf. (N. 3 Durham v. Bischof, 47 Ind. 211; 
 
 Y.) 706. Winslow v. Winslow, 52 Ind. S. 
 
 1 Fuller v. Curtis, 100 Ind. 237. 4 Holland v. Jones, 9 Ind. 495; Marvin 
 
 2 New York, etc., Co. v. Auer, 106 v. Taylor, 27 Ind. 73, 76, citing Brown v. 
 Ind. 219; Chicago, etc., Co. v. Linard, Wyncoop, 2 Blackf. 230; Shaw v. Hoad- 
 94 Ind. 319, S. C. 4S Am. Rep. 155. and lev, S Blackf. 165; Simonds v. Buford, 
 authorities cited. The general princi- iS Ind. 176. Bui if the land has been 
 pie enforced by the cases referred to is sold the vendor is not a necessary party 
 illustrated by the decisions which de- where no personal judgment is sought. 
 clare that parties having a special in- Kellenberger v. Boyer, 37 Ind. iSS. 
 teresl in personal property may main- 5 In Daugherty :•. Deardorf, 107 Ind. 
 tain replevin. Walpole V. Smith. 4 527, 528, it was said : " This decree was 
 Blackf. 304; Bradley v. Michael. 1 void as to the owners of the land, for it 
 Ind. 551; Dunkin v. McKee, 23 Ind. 447. is a well established rule that if the
 
 PREJUDICIAL ERROR. 
 
 
 tion all who have an estate in the land sought to be partitioned 
 are necessary parties where the proceedings affect the entire 
 property. 1 But where the action for recovery of land affects 
 only the several and distinct rights of the claimant, it is not al- 
 ways necessary to make others parties. 2 The general doctrine 
 first stated applies to suits to enforce the specific performance of 
 contracts for the conveyance of land. 3 One who has conveyed 
 land may be joined as a plaintiff' in a suit to enjoin the collection 
 of judgments against him which are paid, but not entered satis- 
 tied of record. 4 It has often been held, as the provisions of the 
 code require it should be, that the assignor of a contract or 
 chose in action in cases where the assignment is not in writing, 
 is a necessary party, and the failure or refusal to so rule where 
 the question is properly presented is prejudicial error. 5 A case 
 of a different class is that wherein it was held that the pledgor 
 
 owners of the mortgaged premises are 
 not made parties to the suit the decree 
 is void as to them." Day v. Patterson. 
 iS Ind. 114; Pauley v. Cauthorn, 101 
 Ind. 91; Shirk v. Andrews. 92 Ind. 509; 
 Mark v. Murphy, 76 Ind. 534; Searle 
 v. Whipperman, 79 Ind. 424; Griffin v. 
 Hodshire, 119 Ind. 235; Curtis v. Good 
 ing, 99 Ind. 45; Abbott v. Union, etc., 
 Co., 127 Ind. 70. 75. 
 
 1 Harlan v. Stout. 22 Ind. 4SS; Milli- 
 gan v. Poole. 35 Ind. 64, 68; Clark v. 
 Stephenson, 73 Ind. 4S9: Taylor v. 
 King, 32 Mich. 42; Poree's Succession. 
 27 La. Ann. 463; Pearson v. Carlton, 
 iS So. Car. 47: Kester v. Stark. 19 111. 
 528; Batterton v. Chiles, 12 B. Monr. 
 34S. S. C. 54 Am. Dec. 539. The de- 
 cisions referred to in the note which 
 follows come very near trenching upon 
 true principle, at all events the broad 
 statements made are of doubtful sound- 
 ness. It is certainly true that where 
 there are undivided estates in land held 
 as owners by different parties all are 
 necessary parties to a suit or action af- 
 fecting the whole property. 
 
 '-' Nelson v. Davis, 35 Ind. 474; Bethell 
 v. McCool, 4'' Ind. 303; Chesround v. 
 
 Cunningham. 3 Blackf. 82. The gen- 
 eral doctrine stated in the text applies 
 to proceedings to secure the assignment 
 of dower. Galbreath v. Gray, 20 Ind. 
 290. 
 
 3 Indiana Pottery Co. v. Bates, 14 
 Ind. S. Purchasers at a sheriff's sale 
 are necessary parties to an action to set 
 it aside. Nelson v. Brown, 20 Ind. 74. 
 See, generally, Overly v. Tipton, 6S 
 Ind. 410; Huston v. Neil, 41 Ind. 504; 
 Merritt v. Wells, iS Ind. 171; Meridian, 
 etc.. Bank v. Brandt, 51 Ind. 56; Roy 
 v. Haviland, 12 Ind. 364. 
 
 4 McCulloch v. Hollingsworth. 27 
 Ind. 115. 
 
 5 Gordon v. Carter. 79 Ind. 3S6; Sco- 
 bey v. Finton, 39 Ind. 275; Reed v. 
 Garr, 59 Ind. 299; Reed v. Finton. 63 
 Ind. 28S; Holdridge v. Sweet, 23 Ind. 
 11S; Bray v. Black, 57 Ind. 417: Hub- 
 bell v. Skiles, 16 Ind. 138; Elderkin v. 
 Shultz, 2 Blackf. 345; Strong v. Down- 
 ing. 34 Ind. 300: Keller V. Willian 
 Ind. 504: Barcus v. Evans, 14 Ind. 381. 
 See, generally. Tread way V. Cobb. 18 
 Ind. 36; Connard v. Christie. 16 Ind. 
 427: Riley :\ Schawacker. 50 Inc.
 
 600 ERROR IN JUDICIAL PROCEEDINGS. 
 
 of shares of the capital stock of a corporation was a necessary 
 party to an action against the corporation to compel a transfer 
 of the stock. 1 
 
 § 661. A Criterion for Determining who are Necessary Parties — 
 
 The case last referred to suggests one test, at least, for deter- 
 mining whether parties are necessary or simply proper, in this, 
 that it clearly indicates that a defendant has a right to have 
 brought before the court all persons whose presence is required 
 to fully settle or determine the particular controversy or whose 
 presence is required in order to enable the court to render such 
 a judgment or decree as shall fully protect his rights. Where 
 a controversy can not be finally adjudicated without the pres- 
 ence of all interested the defendant has a right, upon proper 
 motion or request, to insist that they be brought into the case 
 for the reason that their presence is essential to prevent him 
 from being vexed by suits or actions concerning the same 
 subject. Where the controversy concerns property he has a 
 right to have all the parties before the court for the reason that 
 it is just that his interest or estate, if any he has, should be 
 finally adjudicated as against all claimants, or if he has no in- 
 terest that he should be protected against further litigation. In 
 cases where a defendant is liable with others, it is his right to 
 have them brought into court, so that if he subsequently seeks 
 to compel contribution he may do so without again litigating 
 the question of the joint liability of all to the creditor who sues. 
 It will be found upon an analysis of the cases which proceed 
 on solid principle that the test we have suggested is one of 
 practical importance and utility. The doctrine we have out- 
 lined is asserted and enforced in many of the decided cases, 
 and in a great variety of forms and phases. It would occupy 
 much more space than we can give the topic to consider the 
 
 1 Indiana and Illinois Central Ry. Co. terest in the subject-matter of the liti- 
 
 v, McKernan, 24 Ind. 62. In the case gation, and was a necessary party for 
 
 cited it was said, in speaking of the ne- complete relief. The railroad company 
 
 cessity of making the pledgor a party: had a right to insist upon his being 
 
 " Under the facts in this case, Drake made a party for the protection of its 
 
 was a necessary party; he had an in- rights.''
 
 PREJl' DICIAL ERROR. 
 
 601 
 
 cases in detail or even to cite them all, so that all that we can 
 do is to refer to some of the many cases upon the subject. 1 
 
 1 Cases in which it was held that 
 parties were necessary. Murphy v. 
 Tilly, ii Ind. 511; Luark v. Malone, 
 34 Ind. 444; Duck v. Abbott, 24 End. 
 349; Mandlove v. Lewis, 9 Ind. 194; 
 Hardy v. Blazer, 29 Ind. 226; Elliott 
 v. Stevenson, 21 Ind. 359; McCammack 
 v. Clark, 16 Ind. 320; Reed v. Finton, 
 63 Ind. 28S; Clough v. Thomas, 53 Ind. 
 24; Brady V. Black, 57 Ind. 417; Har- 
 vey v. Brishbin, 50 Hun. 376; Howell 
 r. Foster, 25 111. App. 42; Traphagen v. 
 Levy,45 N.J. Eq. 448, iS At. Rep.222; 
 Prentiss v. Paisley, 25 Fla. 927, 7 So. 
 Rep. 56; Tichenor v. Tichenor, 45 N. 
 J. Eq. 664, iS Atl. Rep. 301; Moore v. 
 Gentry, 25 So. Car. 334; McMekin v. 
 Richards, Si Ga. 192, 6 S. E. Rep. 185; 
 Hill v. Lewis, 45 Kan. 162, 25 Pac. Rep. 
 589; Tarkington v. Link, 27 Neb. 826, 
 44 N. W. Rep. 35; Masterson v. Little, 
 75 Texas, 6S2, 13 S.W. Rep. 154; Atchi- 
 son, etc., Co. v. Benton, 42 Kan. 698, 22 
 Pac. Rep. 69S; Wood v. Wheeler, 106 
 N. C. 512, 11 S. E. Rep. 590. As illus- 
 trative of peculiar phases of the ques- 
 tion we cite the following cases: A 
 judgment debtor is a necessary party to 
 a suit by a receiver to reach his equita- 
 ble interest in a fund. Vanderpoel v. 
 Van Valkenburgh, 6 N. Y. 190. So is a 
 judgment debtor in a suit by an attor- 
 ney to enforce a lien against the judg- 
 ment for professional service:-. Adams 
 v. Fox, 40 N. Y. 577. It has been held 
 that the assignor is a necessary party to 
 a suit to avoid the assignment. Wilson 
 v. Scott, 3 Lans. 30S; Hammond v. 
 Hudson River, etc., Co. v. 20 Barb. 37S. 
 Where a creditor has assigned collat- 
 eral securities to a third person, the 
 former is a necessary party to a suit by 
 the debtor for an accounting. Lewis v. 
 Varnum, 12 Abbott Pr. 305. Creditors, 
 it has been held, are necessary parties 
 to a suit againsl a debtor who has trans- 
 
 ferred a mortgage which the holder 
 seeks to enforce, although the debtor 
 has made an assignment. Bard v. 
 Poole, 12 N. Y. 495. As to who are 
 necessary parties in actions against 
 corporations by stockholders, see Dis- 
 more v. Atlantic, etc., Co., 46 How. Pr. 
 193; Greaves v. George, 49 How. Pr. R. 
 79; Greaves v. George, ^2 How. Pr. 58, 
 S. C. 16 Abb. Pr. R. (N. S.), 377, S. C. 
 69 N. Y. 154; Hand v. Atlantic, etc., 
 Hank, 55 How. Pr. 231; Davis v. Trus- 
 tees, etc., 65 N. Y. 278. Several cred- 
 itors who have been induced to execute 
 a release are necessary parties in a suit 
 to annul it. Smith v. Schuting, 14 Hun. 
 52. As to the interest which makes a 
 party necessary. Vallette v. Whitewater. 
 etc., Co., .) McLean, 192. In a suit to 
 set aside a fraudulent conveyance the 
 grantor is a necessary party. Gaylords 
 v. Kilshaw, 1 Wall. Si, see Vose v. Phill- 
 brook, 3 Story, C. C. 335. Cases adjudg- 
 ing parties not necessary. Ridenour v. 
 Wherritt, 30 Ind. 4S5; Scobey v. Fin- 
 ton, 39 Ind. 275; Cassaday v. Detrich, 
 63 Ind. 4S5; Henson v. Ott, 7 Ind. 512; 
 Way v. Fravel, 61 Ind. 162; Frear v. 
 Bryan, 12 Ind. 343; Kaukauna, etc., Go. 
 v. Green Bay, etc., Co., 75 Wis. 3S5, 44 
 N.W. Rep. 63S; Hart v. Burch, 130 111. 
 426, 6 Law. Rep. Anno. 371; Friteh v. 
 Klausing(Ky.), 13 S.W. Rep. 241; Peo- 
 ple V. Mayor, etc., 32 Barb. 35; Thomp- 
 son v. Erie, etc., Co.. 45 NY. 468; Coe 
 v. Beckwith, 31 Barb. 339; Spicer : . 
 Hunter, 14 Abb. Pr. 4; Van Nest v. 
 Latson, 19 Barb. 604; St. Mark, etc., 
 Co. v. Harris, 13 How. Pr. 95; Patter- 
 son v. Copeland, 52 How. Pr.460; V en- 
 able v. Bank. 2 Pet. 107; Van Reims- 
 dyk V. Kane. 1 Gall. 371. 630; Heath v. 
 Erie, etc., Co., 8 Blatch. 347: Railroad 
 Co. v Howard. 7 Wall. 392; French v. 
 Shoemaker, 14 Wall. 314; Carey v. 
 Brown. 92 U. S. 171.
 
 602 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 662. Who should be Plaintiffs and who Defendants — General 
 Rule — A person whose legal rights have been invaded is ordi- 
 narily the proper party to institute an action, but it others are 
 united with him in a joint interest they must join with him, or 
 if they will not join, then, under the code, they may, as we 
 have seen, be brought into court as defendants. Joint parties 
 must be plaintiffs for the reason, as the old cases assign l that 
 the defendant did not contract with one ol them but with all, 
 and he can not be made to answer to a number less than the 
 whole except in some particular cases which form exceptions 
 to the general rule. Under the code system a right may be in- 
 vaded by a wrongful claim or assertion, as well as by a positive 
 wrongful act. A claim may constitute an actionable wrong, 
 as, for instance, a claim of ownership founded upon a void ju- 
 dicial or official sale. We may, therefore, assert as a general 
 rule that one whose rights are invaded bv a tortious act or a 
 wrongful claim which may do him harm is the necessary and 
 proper plaintiff in a suit or action to vindicate the right or re- 
 dress the wrong. Thus, the owner of land is ordinarilv the 
 proper plaintiff in an action to recover damages to the land 
 caused by the wrong. So, in a suit to quiet title the owner is 
 the proper plaintiff, since he has a right to have his land freed 
 from unfounded claims. The person, it may be said generally, 
 who wrongfully invades the plaintiff 's rights, is the party against 
 whom the suit or action should be brought. It is in general true 
 that any person who violates the right of another may be sued, 
 whether the right be one of person or of propertv. If it be 
 true that one person has infringed the rights of another the 
 wrong-doer is liable for the injurv inflicted, whether the injury 
 results from a breach of contract or from a tort. Ordinarily, the 
 answer to the question, who violated the plaintiff's rights de- 
 termines who should be parties defendant. But in cases of torts 
 or of several contracts the injured party, as is well known, is 
 not bound to sue all of the wrong-doers. 
 
 1 Wetherill v. Langston, i Exch.644; Dorermis z>. Selden, 19 Johns. 213; 
 
 Cabell v. Vaughan, 1 Wm. Saunders, Moodj v. Sewall, i.) Me. 295; Hansel 
 
 291 /. 29] k; Lucas v. Beale, 10 C. B. v. Morris, 1 Blackf. 307; Ellis v. Mc- 
 
 739; Baker v. Jewell, 6 Mass. 460; Lemoor, 1 Baity L. (So. Car.). 13.
 
 PREJUDICIAL ERROR. 603 
 
 § 663. Joinder of Parties — Prejudicial error may arise oul 
 rulings respecting the joinder of parties, although there is much 
 less liability that error will occur under the code system than 
 under the common law. The common law rules are, however, 
 not abrogated for they still prevail to some extent, 1 although in 
 some instances changed by the code, and in others abrogated. 
 It is in general true that all who are jointly liable to the plaint- 
 iff must, as at common law, be made defendants to the action, 
 but, as shown by the cases cited in the note, the common law 
 rule is somewhat modified. The consequence of an error in 
 joining persons as defendants who ought not to be joined is 
 much changed by the code, inasmuch as it provides for judg- 
 ment in favor of the plaintiff as to those against whom he shows 
 a right to a judgment, 2 although as to others he may fail. It 
 is always proper, and generally necessary, to make defendants 
 all persons who have jointly invaded the rights of the plaintiff 
 to his injury, or whose presence is required in order to enable 
 the court to pronounce a judgment or decree that will finallv 
 and effectively settle the particular controversy. 3 Where there 
 is a joint right to a money recovery or to the recovery of per- 
 
 1 Erwin v. Scotten, 40 Ind. 3S9; Ar- 306; Stafford v. Nutt, 51 Ind. 535: Scot' 
 cher v. Heitnan, 21 Ind. 29; Stockton ton v. Mann. 89 Ind. 404; Blodgett v. 
 v. Stockton, 40 Ind. 225; State v. Rob- Morris, 14 N.Y. 4S2; O'Shea v. Kirker, 
 erts, 40 Ind. 451; Rose v. Comstock, S Abb. Pr. 69. 
 
 17 Ind. 1; Lawrence v. Beecher, 116 s Luark v. Malone, 34 Ind. 444; Mer- 
 Ind. 312, 314; Holman v. Langtree, 40 ritt v. Wells. iS Ind. 171; Scobey v. 
 Ind. 349. See, generally, Taylor v. Finton, 39 Ind. 275: Mack v. Grover, 
 Claypool, 5 Blackf. 557; Nicklaus v. 12 Ind. 254; Wrigb.1 v. Field, 7 Ind. 
 Roach, 3 Ind. 7S; Lingenfelser v. Si- 376; Bragg v. Wetzel, 5 Blackf. 95; 
 mon, 49 Ind. S2; Kennard v Carter, 64 Wilson -■. State, 6 Blackf. 212; R< 
 Ind. 31; Robinson v. Snyder, 74 Ind. Comstock, 17 Ind. 1 ; Stockton v. Stock- 
 no. ton, 40 Ind. 225; Erwin v. Scotten. 40 
 
 2 R. S. 1881, §§ 366, 568; Hubbell V. Ind. 3S9; Hall v. Suitt, 39 Ind. 
 Woolf, 15 Ind. 204; Fitzgerald v.Genter, Stater'. Roberts, 40 Ind. 451; Norvell 
 26 Ind. 238; Stafford*. Nutt, 51 Ind. 535; v. llittle. 23 Ind. 346; Boorum v. Ray, 
 Oarmien f.Whitaker, 36 Ind. 509; Gra- 72 Ind. 151; Gilbert v. Allen, 57 Ind. 
 ham v. Henderson, 35 Ind. 195; Ter- 524; MeCollum v. Uhl, 12S Ind 
 williger v. Murphy, 104 Ind. 32; Rich- Bledsoe v. Irvin, 35 Ind. 293. As a 
 ardson v. Jones, ; s [nd.240; Wilson v. general rule a plaintiff need onlv look 
 Buell, 117 Ind. 315; Lower v. Franks, to the records to ascertain who has or 
 115 Ind. 334; Murray z\ Ebright, 50 who claims to have an interest in land. 
 Ind. 362; Mover z>. Brand, 102 Ind. 301, Bell v. Cox. 122 Ind. 153.
 
 604 
 
 ERROR IN Jl DICIAL PROCEEDINGS. 
 
 sonal or real property the general rule is that all in whom the 
 joint estate, right, or interest exists should unite as plaintiff's. 1 
 Persons not jointly interested should not be joined as plaintiffs. 2 
 Persons having a right to a common relief may in some in- 
 Stances join as plaintiffs. 3 
 
 .^ 664. Right of Action must exist in all who join in a Complaint 
 
 — It has long been the established rule in this jurisdiction that 
 a complaint must state facts showing a cause of action in all 
 who unite in it as plaintiffs. If it does not show a cause of ac- 
 tion in all w r ho join in it a demurrer assigning as a cause, " that 
 the complaint does not state facts sufficient to constitute a cause 
 of action " will prevail against it. 4 The theory seems to be that 
 there is no cause of action, not that there is a defect of parties. 
 
 § 665. Pleadings, Motions to make Specific — Under our system 
 the usual remedy for an uncertainty in a pleading is by motion 
 to make more certain or specific and not by demurrer, 5 so that 
 
 1 McArthur v. Lane, 15 Me. 245; 
 Smoot v. Wathen, S Mo. 522; Jellison 
 v. Lafonta, 19 Pick. 244; Clark v. 
 Vaughan, 3 Conn. 191; Gent v. Lynch, 
 23 Md. 58; Sayre v. Sayre, 17 N.J. Eq. 
 349; Braintree v. Southworth, | Gray, 
 304; Russell v. Clark, 7 Cranch. 69; 
 Prentice v. Kimball, 19 111. 319; Man- 
 deville v. Riggs, 2 Pet. 482; Northern 
 Indiana, etc., Co. v. Michigan Central, 
 etc., Co., 5 McLean, 444; Wilson v. 
 Castro, 31 Cal. 420; Brasher v. Van 
 Cortland, 2 John. Ch. 242; Parkt'.Bal- 
 entine, 6 Blackf. 223; Fletcher v. Man- 
 sur, 5 Ind. 267; Gilbert v. Allen, 57 
 I ml. 524; Tate v. Ohio, etc., Co., 10 Ind. 
 174; Roberts v. Abbott, 127 Ind. S3; 
 Renihan v. Wright, 125 Ind. 536. 
 
 2 Jones v. Caidwell, 98 Ind. 331. 
 
 3 field 11. Holzman, 93 Ind. 205; 
 Town of Sullivan v. Phillips, no Ind. 
 
 1 Sims v. Hurst, 44 I ml. 571;; Maple v. 
 Beach, 43 Ind. 51; Neal v. State, 49 
 Ind. 51; Berkshire v, Shultz, 25 Ind. 
 523; Goodnight v. Goar. 30 Ind. 41S; 
 
 Debolt v. Carter, 31 Ind. 355; Fatman 
 v. Leet, 41 Ind. 133; Yaterf. State, 58 
 Ind. 299; Parker v. Small, 58 Ind. 349; 
 Lipperd V, Edwards, 39 Ind. 165; 
 Strange V. Lowe, S Blackf. 243; Gritlin 
 v. Kemp, 46 Ind. 172; Nave v. Hadley, 
 74 Ind. i55;Peters v. Guthrie, 119 Ind. 
 44; Traders Ins. Co. v. Newman, 120 
 Ind. 554, $z,(>; Kelley v. Adams, 120 
 Ind. 340, 342; Evans v. Schafer, 119 
 Ind. 49; Brumfield v. Drook, 101 Ind. 
 190; Brown v. Critchell, no Ind. 31; 
 Mann v. Marsh, 35 Barb. 68; Dunder- 
 dale v, Grvnus. [6 How. Pr. 195. See, 
 generally, Ritchmyer t>. Ritchmyer, 50 
 Barb. 55; Palmer v. Davis, 2S N. Y. 
 242; Simar v. Canaday, 53 N. Y. 29S, 
 301. As to the common law doctrine, 
 see Staler v. Barhite, 2 Caines, 221; 
 Lewis v. Babcock, 18 Johns. 443; Lil- 
 lard v. Ruckers, 9 Yerg. 64. 
 
 5 Among the great number of cases 
 asserting this doctrine are: Fultz v. 
 Wycoff, 25 Ind. 321; Cleveland, etc., 
 Co. v. Wynant, 119 Ind. 539; Pennsyl- 
 vania Co. t'. Dean, 92 Ind. 459; Fallej'
 
 PREJ1 DIC I A I. ERROR. 605 
 
 if a party appropriately moves to make a pleading definite and 
 certain it will be prejudicial error to overrule his motion if it is 
 well founded, and the defect pointed out is a material one.' It 
 is evident that ii is not every instance where a wrong ruling 
 upon a motion to make more specific is made that prejudicial 
 error arises, inasmuch as there may be cases where it would 
 be proper to sustain the motion and yet no substantial injury 
 arise from overruling it. 2 But, as a party is entitled to reason- 
 ably full and clear information of what is alleged against him, 
 and as isues must be definite and certain, there are mam r in- 
 stances where certainty and precision are material, and in all 
 such instances it would be harmful error to overrule a motion 
 to make more specific addressed to a complaint materially de- 
 fective in certainty. 
 
 £ 666. Rulings on Demurrer — Where a demurrer is overruled 
 to a bad paragraph of a complaint consisting of several para- 
 graphs, there is prejudicial error unless the record affirmatively 
 shows that the judgment rests on a good paragraph or para- 
 graphs. If the record proper clearly shows that the judgment 
 rests on the good paragraph or paragraphs there is no available 
 error, since the court can see from an inspection of the record 
 that no harm was done the complaining party. But it is other- 
 wise where there is no such affirmative showing, and the pre- 
 sumption that the error was prejudicial will be given full effect. 3 
 
 v. Gribling, 128 Ind. no; Jones v- State, 2 Alleman v. Wheeler, 101 Ind. 141. 
 112 Ind. 193. "It is only where the In the case cited it was said: "It is 
 pleading is so indefinite and uncertain quite evident that the facts relied on 
 as to entirely fail to state a cause of for a recovery in this action were not 
 action that a demurrer will lie." Will- as directly and certainly charged as the 
 iams v. Board, 121 Ind. 239, 240; Snow- rules of good pleading required, and 
 den v. Wilas, 19 Ind. 10; Lewis v. Ed- that the complaint might,with great pro- 
 wards, 44 Ind. 333. priety, have been ordered to be made 
 1 Goodwin <o. Walls, 52 Ind. 268; more specific." It was, however, held 
 Starkweather ?\ Kittle, 17 Wend, thai there was no available error in 
 20; Hurtling t». Griffin, 7 Blackf. 462. overruling the motion, but it is ques- 
 The ruling in Louisville, etc., Co. v. tionable whether the decision i> de- 
 Henly, SS Ind. 535, is so obscure that fensible. If a party can not secure cer- 
 it is difficult to determine it> effect. If tainty by a motion he is remediK 
 it means that amotion to make more 5 Wolf v. Schofield, 38 Ind. 175; Peer) 
 specific is not an appropriate one it is v. Greensburgh, etc.. Co.. 43 Ind. 321; 
 clearly wrong. Cook v. Hopkins, 66 Ind. 208; Evans-
 
 G06 ERROR IN JUDICIAL PROCEEDINGS. 
 
 It is by no means ever} erroneous ruling upon the pleadings 
 that may be rendered harmless by other rulings of the court. 
 If, for instance, a demurrer is erroneously sustained to an an- 
 swer, the defendant ma}' be precluded from availing himself of 
 a valid defense, and it is obvious that where this is so the error 
 is not rendered harmless by a special finding or a special ver- 
 dict. 1 
 
 .^ <><;7. A Wrong Ruling which operates to Exclude Material Facts 
 is Prejudicial — It is sometimes said that if the facts as they ap- 
 pear in the record repel the inference of prejudice from an ad- 
 verse ruling, the ruling, although wrong, can not be made 
 available for the reversal of the judgment. This statement is 
 misleading and requires qualification. It is true, as said in the 
 opening paragraph of this chapter, that the court will examine 
 the entire record to ascertain whether the error was or was not 
 prejudicial, but this does not imply that the court will adjudge 
 the error harmless solely upon the facts appearing in the rec- 
 ord ; on the contrary, the court will inquire and ascertain 
 whether the complaining party has been precluded from giving 
 material and influential evidence that he was entitled to have 
 considered, and if it finds that the effect of a wrong ruling was 
 to deprive him of the right to give such evidence it will adjudge 
 the error to be prejudicial. There are many cases where a 
 
 vilK-. etc., Co. v. Wildman, 63 Ind.370; available by a defendant who had not 
 
 Schaferv. State, 49 Ind. 460; Hawley v. joined in it. The court said: "We 
 
 Smith, 4^ Ind. 1S3; Bailey v. Troxell, can not look to this special finding of 
 
 43lnd.432; PennsylvaniaCo. v. Holder- facts to pronounce the error harmless, 
 
 man, (») Ind. 18; Ethell v. Batchelder, on the ground that the case has been 
 
 90 End. 520; Lang v .Oppenheim, 96 Ind. disposed of upon its merits. If the an- 
 
 47; City of Logansport v. La Rose, 99 swer had been allowed to stand, the 
 
 Ind. 117; Rowe v. Peabody, 102 Ind. 19S; evidence might have been different, and 
 
 Walker v. Heller, 104 Ind. 327; Weir©, hence the special finding might have 
 
 State, 96 Ind. 311; Belt Railroad, etc., been different. Nor can we say from 
 
 Co.ti. Mann, 107 Ind. 89; Ryan v. Ilur- an inspection of the paragraph or an- 
 
 ley, in; Ind. u^. swer, and the record before us that the 
 
 1 In M nver v. Brand, 102 Ind. 301, an error should be disregarded because the 
 
 answer was filed by one of several de- answer embodied a sham defense. There 
 
 fendants which w;i> available to all, and is nothing upon the face of either which 
 
 the court held that the error in sustain- would justify such a conclusion." 
 ing a demurrer to it might he made
 
 PREJUDICIAL ERROR. G»'7 
 
 ruling is prejudicial because it operates to exclude facts, and it 
 is, of course, perfectly clear that in such a case, the facts actu- 
 ally in the record can not be held to show the error to be with- 
 out prejudice. 1 
 
 § 668. Error once Effectively Saved npon Demurrer is Sufficient 
 
 — Where an adverse ruling upon a demurrer so operates as to 
 wrongfully deprive a party of the right to introduce evidence 
 establishing a cause of action or a defense, a proper exception 
 duly entered is sufficient to fully present the ruling for review 
 on appeal. No further decision or ruling need be requested in 
 any form. As we have elsewhere shown, the presumption is 
 that the court adheres to the theory declared, either expressly 
 or impliedly, in its rulings upon the pleadings. 2 A party who 
 presents a question fully and fairly upon the pleadings has a 
 right to presume that the trial court will abide by the decision 
 throughout the case, and hence is not bound to again present 
 the question. Thus, if a party should plead that there was 
 fraud in obtaining a contract and the court should sustain a de- 
 murrer to his answer, he is under no duty to offer evidence un- 
 der the overthrown answer in order to make the error available. 
 Courts have, in more instances than one, censured coun- 
 sel for repeated attempts to present a question once fully 
 and effectively disposed of by the ruling or decision of the 
 court. It is obvious that it would completely nullify the ele- 
 mentary rule that the evidence must be confined to the issues 
 to hold that in order to make the error available a party must 
 offer evidence in support of the cause of action or defense as- 
 serted in the complaint or answer held bad upon demurrer, 
 since, without some pleading tendering the proper issue he 
 could not give any such evidence. The court in ruling the 
 pleading insufficient declares that it is useless and vain to offer 
 such evidence, and in the face of such a declaration the party 
 is not bound to offer evidence, for he can not be required or 
 expected to do a vain and fruitless thing. lie has, in strict- 
 ness, no right to do so, in view of the decision of the court 
 
 1 Mover ?. Brand, suj>ra. court adheres to a declared or indicated 
 
 * Ante, §591. "Presumption that the theory."
 
 608 
 
 ERROR IX JUDICIAL PROCEEDINGS. 
 
 which it his duty to respect. It is quite clear that the expres- 
 sions in some of the cases are erroneous, and that the decisions 
 which assert that regard will be had only to the pleadings 
 where the effect of the ruling is to cut off a substantial right 
 are correct. 1 
 
 ^ (569. The Difference between Overruling a Demurrer and Sus- 
 taining a Demurrer to one of Several paragraphs of a Pleading — 
 
 Ccn r usion frequently results from applying the settled rule, that 
 a ruling sustaining a demurrer to one of several paragraphs of a 
 pleading is h :rmless in a case where there are other paragraphs 
 of a pleading under which all of the facts can be proved, to a case 
 where a demurrer is overruled to one of several paragraphs. 2 
 The cases are radically different. It can not possibly do the 
 party whose demurrer is overruled any good to hold that there 
 are other paragraphs under which all the evidence is admissi- 
 ble, although it may do his adversary a vast deal of good to so 
 hold. It is no benefit to the party who demurs that his adver- 
 
 1 Johnson v. Breedlove, 72 Ind. 36S; 
 Friddle v. Crane, 68 Ind. 583; Fleet- 
 wood v. Brown, 109 Ind. 567, 570; Wil- 
 son v. Town of Monticello, 85 Ind. 10, 
 21; Rush ©.Thompson, 112 Ind. 158, 
 if>y. Mover v. Brand. 102 Ind. 301; 
 Ryan v. Hurley, 1 [9 Ind. 115. In Rout 
 v. King, 103 Ind. 555, it was said: 
 " The court can not examine the evi- 
 dence to determine a question presented 
 by demurrer, for the demurrer presents 
 the question fully and the question pre- 
 sented must he deeideil according to the 
 record." In Ahell v. Riddle, 75 Ind. 
 345, 348, the court said: "The excep- 
 tion having been saved to the ruling on 
 the demurrer, the pleading can not In- 
 aided by reference to the verdict or the 
 evidence." In the case of New v. 
 Walker. 10S Ind. 365, 376. it was said: 
 '• It can not he legally possible that if a 
 party's reply, presenting facts which 
 completely avoid and nullify the answer 
 of his adversary, is held to be insuffi- 
 cient, the special finding can cure the 
 
 error. If his pleading is overthrown, 
 In is not entitled to give evidence in 
 support of the theory which it asserts, 
 and he is, therefore, necessarily and 
 materially injured by the ruling strik- 
 ing it down. Where a party duly ex- 
 cepts to a ruling on demurrer which 
 overthrows a valid pleading, he does 
 not wane any rights by proceeding to 
 trial, nor is he hound to oiler evidence 
 upon the subject covered by the plead- 
 ing, for his exception to the ruling on 
 the demurrer effectually asserts and 
 preserves his rights." 
 
 2 The courts have fallen into the er- 
 ror in several instances, as the over- 
 ruled cases show. McGee v. Robbins, 
 58 Ind. 463; Johnson v. D'lleur, 71 
 Ind. 199; Thomas v. Hamilton, 71 Ind. 
 277; Webster v. Bebinger, 70 Ind. 9; 
 De Armond v. Stoneman, 63 Ind. 386. 
 These cases are expressly denied in 
 Over V. Shannon, 75 Ind. 352, and are 
 in conflict with many other cases.
 
 PREJUDICIAL ERROR. 
 
 609 
 
 sary may give evidence under other paragraphs, although to 
 the adversary the benefit may be very great. In holding a de- 
 fective paragraph good the court adjudges that if the party by 
 whom it is pleaded proves it he will be entitled to recover. No 
 such thing is adjudged where a demurrer is sustained to one 
 paragraph of several. It is true that it is adjudged that the 
 paragraph is insufficient, but no harm can result from such a 
 ruling, if, in fact, no competent evidence is excluded, and it is 
 not excluded if other paragraphs are left standing which en- 
 title it to admission. It is far otherwise where an insufficient 
 paragraph is adjudged sufficient, for there is nothing to aid the 
 party who demurs. All that he can do is to except to the ruling. 1 
 He has a right to test the pleading by demurrer, and if it is 
 held good when it should have been held bad he can not call to 
 his aid other pleadings. He has, also, a right to assume that 
 the court will adhere to the theory declared or indicated by its 
 
 1 Scott v. Stetler, 12S Ind. 3S5, 3S6; 
 Messick v. Midland R. Co., 12S Ind. Si, 
 84; Hormann v. Hartmetz, 12S Ind. 354, 
 355; Thompson v. Lowe, in Ind. 272; 
 Epperson v. Hostetter, 95 Ind. 583; 
 McComas v. Haas, 93 Ind. 276, 281; 
 Eve v. Louis, 91 Ind. 457, 463; Wilson 
 •v. Town of Monticello, 85 Ind. 10, 21; 
 Sims v. City of Frankfort, 79 Ind. 446, 
 449; Over v. Shannon, 75 Ind. 352; 
 Comers v. Mcricles, 75 Ind. 443, 446; 
 Weir :•. State, 96 Ind. 311, 315; Ker- 
 nodle :'. Caldwell, 46 Ind. 153. In the 
 case of Pittsburgh, etc., Co. v. Van 
 Ilouten, 4S Ind. 90, 96, the court, an- 
 swering the argument of counsel, said: 
 "But counsel seek to apply a wrong 
 rule. The rule is applicable when a de- 
 murrer has been sustained to a plead- 
 in- and the same matter is admissible 
 under another pleadingwhich remains." 
 In Booker v. Goldsborough, 44 Ind. 490, 
 500, it was said : " But it is insisted 
 that the appellants were not injured by 
 the action of the court in overruling the 
 demurrer, as the same facts were ad- 
 missible under the second paragraph. 
 
 39 
 
 Where a demurrer is sustained to a 
 good special answer, the error will be 
 harmless if the same facts are admis- 
 sible under some other paragraphs, but 
 the rule is otherwise where a demurrer 
 is overruled to a bad special answer. In 
 the case first supposed the defendant 
 can offer his evidence under the other 
 paragraph and may avail himself of any 
 question of law arising therein by in- 
 struction or otherwise. In the latter 
 case a plaintiff has no mode of availing 
 himself of the objections to the answer 
 but by demurrer, and that being over- 
 ruled, if the answer is true in fact, his 
 case is at an end." The court said in 
 the case of Abdil v. Abdil, ^3 Ind. 46O1 
 464: " But where special answers are 
 held good it is not perceived that the 
 plaintiff is in any way benefited by the 
 general denial being in. He has no 
 mode of availing himself of the objec- 
 tions to the answer but by demurrer, 
 and that being overruled, if the answer 
 is true in point of fact, his case is at 
 end."
 
 610 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ruling and to conduct the case until the end upon that assump- 
 tion. 1 
 
 § 670. Rulings in Admitting and Excluding Evidence— Preju- 
 dicial error is often committed, as is sufficiently obvious, in 
 rulings made in admitting and excluding evidence. A violation 
 of the established rules of evidence is always error, but, as we 
 have shown in a former chapter, it is not always prejudicial 
 error, that is, it is not always available for a reversal of the 
 judgment. 2 It may not be prejudicial in legal contemplation 
 for three reasons: First, it may have been invited; 3 second, 
 it may not be material ; 4 third, it may not exert any influence 
 upon the ultimate decision of the case. 5 Where there is a con- 
 flict of evidence a party is entitled to all legitimate evidence in 
 his favor, and to the exclusion of all incompetent evidence 
 against him. Our statement outlines, at least, a rule which no 
 one will challenge, but how it shall be applied is a question 
 full of difficulty. Some of the courts indicate that it is proper 
 to examine and weigh the evidence and if it is found to clearly 
 and decidedly preponderate in favor of the successful party to 
 treat the ruling admitting or rejecting evidence as harmless. 6 
 
 1 Ante, § 591. Graff, 25 Neb. 130, 41 N. W. Rep. 142; 
 
 2 Ante, § 632. " Error without prej- Dale v. See, 51N. J. L. 37S, iS Atl. Rep. 
 udice." See, also, People v. Collins, 75 306. 
 
 Cal. 411, 17 Pac. Rep. 430; Cowles v. * Wagner v. State, 116 Ind. 1S1, iS 
 
 Robinson, 11 Col. 5S7, 19 Pac. Rep. N. E. Rep. S33; Couts v. Neer, 70 
 
 654; State v. Pugsley. 75 Iowa, 742, 38 Texas, 468, 9 S. W. Rep. 40; Pearce v. 
 
 N. W. Rep. 49S; Norwich, etc., Co. v. Pettit, 85 Tenn. 724, 4 S. W. Rep. 
 
 Worcester, 147 Mass. 518; Hamilton v. 526; People v. Ching Hing Chang, 74 
 
 Ross, 23 Neb. 630, 37 X. W. Rep. 467; Cal. 389, 16 Pac. Rep. 201; Duncan v. 
 
 Hoar v . Leaman (Pa.), 15 Atl. Rep. 716; Kohler. 37 Minn. 379, 34 N. W. Rep. 
 
 Riggs v. Wilson, 30 So. Car. 172, 8 S. E. 594; Mcllvain v. State, 80 Ind. 69; 
 
 Rep. S48; Rorer Iron Works v. Trout, Hessin v. Heck, SS Ind. 449; Mills v. 
 
 83 Va. 397, 5 Am. St. Rep. 285; State?. Winter, 94 Ind. 329; Lovinger v. First 
 
 Shoemaker, 101 N.C. 690, 8 S. E. Rep. National Bank, Si Ind. 354. 
 
 332; Brown v. Owen. 94 Ind. 31; Gos- 5 Ante, § 590. " The ultimate ruling 
 
 sard v. Woods. 98 Ind. 195; Lake Erie, is decisive." See, generally, Giffin v. 
 
 etc., v. Griffin, 107 Ind. 464; Newcomer Barr, 60 Vt. 599, 15 Atl. Rep. 190; Tur- 
 
 v. Hatchings. 96 Ind. 119. ner v. White, 77 Cal. 392, 19 Pac. Rep. 
 
 I ite, Chapter III, Part II. " In- 6S3; Rea v. Scully, 76 Iowa, 343, 41 N. 
 
 vited Error." Nitches. Earle, 117 Ind. W. Rep. 36. 
 
 270. 19 N. E. Rep. 749; Robinson v. 6 Holstein v. Adams, 72 Tex. 485, 10 
 
 Shank, 11S Ind. 121, 133; Howell v. S. W. Rep. 560; Hooker v. Brandon, 75
 
 PREJUDICIAL ERROR. 61 1 
 
 We can not, we say with deference as becomes us in view of 
 the many decisions upon the question, give our adherence to 
 this doctrine. The scale may be turned against a party by the 
 exclusion of evidence seemingly of no great weight, yet be- 
 cause of the conduct, demeanor and situation of a witness, 
 really of controlling weight, while, on the other hand, it may 
 be inclined against him by the admission of incompetent evi- 
 dence apparently uninfluential, but, in fact, of great influence. 
 Testimony from a living witness carries a very different influ- 
 ence from testimony reduced to writing and appearing on the 
 pages of a lifeless record. It is, as we believe, an indefensible 
 departure from principle for an appellate tribunal to assume 
 the functions of a jury and weigh the evidence for the purpose 
 of determining on which side it preponderates. Where there is 
 no conflict of evidence, or where the conflict is so slight as to 
 be undeserving of serious consideration, then there is no reason 
 why the appellate tribunal may not say from an examination 
 of the record that no harm was done by the wrong ruling let- 
 ting in the incompetent evidence or keeping out the competent, 
 but it is far otherwise where the evidence is conflicting and re- 
 quires study and analysis in order to ascertain on which side it 
 preponderates. Where the evidence admitted or excluded is 
 
 Wis. S, 43 N. W. Rep. 741 ; Roe r- Kan- St. 327, 331 ; Morris v. Runnels, 12 Tex. 
 sas City, etc., Co., 100 Mo. 190, 13 S. 17S; Manny v. Glendinning, 15 Wis. ;>>. 
 W. Rep. 404; State v. Severson. 7S The statement of the general rule is cor- 
 Iowa, 6^3, 43 N. W. Rep, 533; Clem v. rect, although indefinite and incomplete. 
 Commonwealth (Ky.), 13 S. W. Rep. It is no doubt true that there are many 
 102; Kuh v. Metropolitan Ry. Co.. 26 cases where the court can determine 
 |. & S. (N. Y.) 13S, 9 N. Y. Supp. 710; without weighing the evidence whether 
 Young v. Hudson, 99 Mo. 102; Ganson the particular evidence was or was not 
 v. Madigan, 15 Wis. 144, S. C. 82 Am. likely to have influenced the verdict. 
 Dec. 659, 666. In the case of Barton v. Where the court can declare without 
 Kane, 17 Wis. 38, S. C. 84 Am. Dec. 72S, weighing conflicting evidence that the 
 the court said: " No doubt merely ir- particular evidence excluded or ad- 
 relevant evidence — that which has no mitted did not influence the verdict, 
 tendency to influence a verdict either then a wrong ruling may well be re- 
 way — does not vitiate. It must appear garded as harmless, but the case is very 
 that the party objecting was, or may different where the effect of the particu- 
 have been, injuriously affected." The lar evidence can not be determined 
 court cited Dunlay v. Edwards. 29, Mi>s. without considering and weighing con- 
 41; Routh v. Agricultural Bank, 12 flicting evidence. 
 Smedes & M. 161 ; Lobb v. Lobh, 26 l'a.
 
 612 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 clearly immaterial there can seldom be any difficulty, for, ordi- 
 narily, such evidence can not exert any influence, but, even 
 immaterial evidence, if given undue prominence by repetition, 
 may work injury. 1 It is impossible to formulate any general 
 rule that will be satisfactory and free from exceptions, but we 
 think it safe to say that the decided weight of authority war- 
 rants this statement : Where the wrong ruling is not invited and 
 the evidence admitted or excluded is material, the error will be 
 available for the reversal of the judgment, unless the appellate 
 tribunal can ascertain com the record without assuming the 
 functions of the triers of the facts by weighing conflicting evi- 
 dence, that the wrong ijuling did not prejudice the substantial 
 rights of the complaining party. 2 Where the evidence is of 
 
 1 Orr v. Miller, 98 Ind. 436; WLkley the question by saying that the evidenr-e 
 
 v. Foye, 33 N. H. 171, S. C. 66 Am. was irrelevant. 
 
 Dec. 715. The Supreme Court of New 2 Daley v. American, etc., Co., 150 
 Hampshire, in discussing this plr,se of Mass. 77, 22 N. E. Rep. 439. In re 
 the subject in the case of Winkley v. Eysaman's Will., 113N.Y.62, 20 N. E. 
 Foye, 28 N. H. 513, said: " Evidence Rep. 613. In re Carpenters Estate, 
 which has no legitimate bearing may 79 Cal. 382, 21 Pac. Rep.S35; Brown v. 
 still have an unfavorable influence upon Klock, 117 N.Y. 340, 22 N. E. Rep. 944; 
 a claim or defense. It maybe calcu- Tollena. Read, 32 N.Y. Supr. 46; Max- 
 lated to excite prejudices, or raise false well v. State, 89 Ala. 150, 7 So. Rep. S24; 
 impressions, and in such cases its ad- Skeels v. Starrett, 57 Mich. 350, 24 N. 
 mission may furnish good grounds to W. Rep. 98; States. Ezekiel, 33 So. Car. 
 set aside the verdict." In the case be- 115, 11 S. E. Rep. 635; State v. Olds, 19 
 tween the same parties cited in this Ore. 397, 24 Pac. Rep. 394; Drew v. 
 note this doctrine was re-asserted. It State, 124 Ind. 9, 23 N. E. Rep. 1098; 
 cis to us to be the sound rule, and Spanagel v. Dellinger, 38 Cal. 27S; 
 that expressions found in some of the Sweeney V. Reiley, 42 Cal. 402; Stan- 
 cases indicating a different doctrine are v. Cass, 23 Ind. 458; Rohlfingf. Light- 
 erroneous. Much must, of course, de- body, 36 Kan. 500, 13 Pac. Rep. 836; 
 pend upon the particular case, but it Marsh v. Wade, 1 Wash. 120, 153, 20 
 seems to us that where a party gives in- Pac. Rep. 57S; Farris v. People, 129 111. 
 competent evidence over the objection 521,21 N. E. Rep. S21, S. C.4 Law. Rep. 
 of his adversary that has a tendency to Anno. 582; Biemel V . State, 71 Wis. 444, 
 divert the minds of the jurors from the 37 N. W. Rep. 244; Yarnumr. Hart, 17 
 real issue or to inflame their passions Hun. 18; People v. Hillhouse, 80 Mich. 
 01 excite their prejudices the appel- 580, 45 N.W. Rep. 484; FortWorth,etc, 
 late tribunal should reverse the judg- Co. v. Thompson, 75 Texas, 501, 12 S. 
 ment, unless the record shows conclu- W. Rep. 742; Gurney v. Brown, 27 111. 
 sivelv that no injury could have re- App. 640. Some of the courts discrimi- 
 sulted from the wrong ruling. It, cer- nate between the admission and the ex- 
 tainly, docs the complaining party in elusion ofincompetent testimony. Thus, 
 such a case scant justice to dispose of in Estate of Toomes, 54 Cal. 509. 510, it
 
 PREJUDICIAL ERROR. 
 
 6 1 3 
 
 such a character that it is likely to turn the scale, then, what- 
 ever the elements that impress upon it that character, whether 
 because the}- are such as arouse prejudice or tend to produce 
 conviction, it should be regarded as material, and a wrong 
 ruling respecting it should be deemed prejudicial, if the case is 
 not entirely clear upon the evidence or record. 1 If the evidence 
 is of such a character as to be likely to mislead the jury, turn 
 their minds in the wrong direction and into improper channels, 
 leading to a wrong result, the error in admitting it is presump- 
 tively harmful, and unless the presumption is satisfactorily re- 
 butted the judgment will be reversed. 2 
 
 was said: "But whatever may be the such case we are bound to presume 
 
 rule upon tftis point when improper evi- that the court took into consideration 
 
 dence has neen introduced not chang- all the evidence which had a bearing 
 
 ing the result, it seems to be well set- upon the issue, but such presumption 
 
 tied that the exclusion of proper evi- would not be indulged where wholly 
 
 dence is ground of reversal." In the immaterial and irrelevant evidence had 
 
 case of Arthurs v. Hart, 17 How. (U. been admitted." 
 
 S.) 6, the court said: "The case of ' In Mays v. Hedges, 79 Ind. 288, 
 
 the refusal of proper evidence on the 293, it was said: "The testimony was 
 
 trial is subject to very different consid- calculated to make an impression upon 
 
 erations irom those applicable to the the minds of the jurors favorable to the 
 
 improper admission of it, and lead to a appellee. We can not say that it did 
 
 determination of it upon principles not influence the minds of the jury. 
 
 wholly inapplicable in case the evi- Where it is clear that irrelevant testi- 
 
 dence had been admitted." It is to be mony could not have influenced ,l 
 
 observed of the cases from which we jury adversely to the party against 
 
 have quoted that the courts were speak- whom it is admitted, it may be said to 
 
 ing of cases where the trial was by the be harmless, but not otherwise." 
 
 judge. Our cases do not recognize the 3 Barnett v. Leonard, 66 Ind. 422, 427; 
 
 distinction. Baker v. Dessauer, 49 Ind. Memphis, etc., Co. v. McCool, S3 Ind. 
 
 28, 32; Weik :•. Pugh, 92 Ind. 382, 3S7. 392, 397; Orr v. Miller. 98 Ind. 436. In 
 
 The case last cited states the rule re- 
 specting immaterial evidence much 
 stronger than principle or authority 
 warrants. The ease of Kin^ :\ Enter- 
 
 Morgan v. State, 31 Ind. 103, the court 
 said: " The error having occurred, did 
 it harm the appellant? The presump- 
 tion is that it did. and unless it clearly 
 
 prise Ins. Co., 45 Ind. 43. does not hold appears that it did not we must reverse 
 
 that a judgment will be reversed for the judgment." This general doctrine 
 
 the admission of immaterial evidence, is well supported. Belden v. Nicolay, 
 
 for in that case the incompetent evi- 4 E. D. Smith, 14; Thompson v. Wil- 
 
 dence was of a material character. It son. 34 Ind. 94, 97; Baker v. Dessauer. 
 
 was there said in substance that there 49 Ind. 28; Bellefontaine, etc., C 
 
 was a conflict of evidence upon ma- Hunter,33 Ind. 335; Vandivere i>. Dol- 
 
 terial points and that the evidence ad- lins. 49 Ind. 210; King v. Enterprise 
 
 mitted had an important bearing upon Ins.Co.,45 l' u '-4.v Simmons :•. S 
 
 those points. It was also said: "In 20 Fla. 449, S. C. g Law. Rep. Anno.
 
 614 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 071. Conduct of the Trial — The questions which it is our pur- 
 pose to consider in this paragraph are such as arise upon the 
 rulings directing the conduct of the trial, excluding as far as 
 possible questions relating to the evidence, the instructions and 
 the like, and gathering up miscellaneous matters of practice. 
 It is convenient and not altogether inappropriate to use the 
 term " conduct of the trial " in the restricted sense in which we 
 here employ it, although it is often employed in a much more 
 comprehensive sense. Without further preface we direct at- 
 tention to the fact that prejudicial error may often be alleged 
 upon wrong rulings regarding the right to open and close the 
 case. Some of the courts hold that the question as to who 
 shall open and close the case is one of discretion, but our courts 
 and the great majority of the courts hold that the question is 
 not one of discretion. If the trial court denies a party entitled 
 to the open and close that right, the error, if properly saved 
 and presented on appeal, is available for the reversal of the 
 judgment. 1 The party on whom the burden of proof rests has 
 a right to the open and close, and where the burden of proof 
 rests is to be determined from the issue made by the pleadings. 2 
 In general the plaintiff has the right to the open and close, but 
 
 343; Terre Haute, etc., Co. v. Teel, 2 Heilman v. Shanklin, 60 Ind. 424, 
 
 20 Ind. 131; Fordyce v. McCants, 51 444; Gaul v. Fleming, 10 Ind. 253; 
 
 Ark. 509, S. C. 4 Law. Rep. Anno. 296; Hamlyn v. Nesbit, 37 Ind. 284; Lynam 
 
 Smiths v. Shoemaker, 17 Wall. 630, 639; v. Buckncr, 60 Ind. 402, 409; Camp v. 
 
 Deerj- v. Cray, 5 Wall. 795; Moores v. Brown, 48 Ind. 575. In Lynam v. 
 
 National Bank, 104 U. S.625, 630; Gil- Buckner, supra, it was said: "The rule 
 
 mer v. Higley, no U. S. 47, 50. See is well settled in civil actions that the 
 
 Ante, § 594. " Presumption of preju- party upon whom the burden rests is 
 
 dice from erroneous rulings." entitled to open and close the case on 
 
 1 Ashing v. Miles, 16 Ind. 329; White the trial thereof." See, also, Fetter- v. 
 
 v. Carlton, 52 Ind. 371; White Water, Muncie National Bank, 34 Ind. 251; 
 
 etc., Co.f. McClure, 29 Ind. 536; Haines Judah v. Trustees, etc., 23 Ind. 272; 
 
 v. Kent, n Ind. 126; Kirkpatrick v. McLees v. Felt, n Ind. 21S; Hyatt t\ 
 
 Armstrong, 79 Ind. 384; Kinney v. Clements, 65 Ind. 12; Tull v. David, 27 
 
 Dodge, 101 Ind. 573; McCormick. etc., Ind. 377; Love v. Dickerson, 85 N. C. 
 
 Co. v. Gray, 100 Ind. 2S5; Whitesides 5; Rolf v. Pillond, 16 Neb. 21, 19 N. 
 
 v. Hunt, 97 Ind. 191; Bannister v. Jett, W. Rep. 615; Fry v. Bennett, 28 N. Y. 
 
 83 Ind. 129; Clarkson v. Meyer, 14 N. 324; McConnell v. Kitchens, 20 So. Car. 
 
 Y. Supp. 144; Edwards v. Hushing. 31 430; Perkins v. Ermel, 2 Kan. 325; 
 
 111. App. 223: Lake, etc.. Bank v. Jud- Johnson t\ Josephs, 75 Me. 544. 
 son, 122 N. Y. 27S. 25 N. E. Rep. 367.
 
 PREJUDICIAL ERROR. 
 
 615 
 
 this is by no means invariably true, for the defendant may often 
 have the right to open and close the case. Where the plaintiff 
 is required to produce evidence to sustain the issue tendered by 
 him he has the right to open and close, 1 and this is true where 
 there are several issues, if the burden is upon the plaintifl to 
 prove any one of them. 2 Where there are several defendants 
 the plaintiff may open and close the case as to all if he has 
 that right as against one of them. 3 The defendant may. by 
 fully confessing all the material allegations of the plaintifl s 
 complaint, obtain the right to open and close the case, 4 but all 
 of the material allegations must be confessed, for if any are 
 denied, whether by a direct or by an argumentative denial, the 
 right will be in the plaintiff. 5 It is not necessary that immate- 
 rial allegations be confessed, it is enough if all the material al- 
 legations are admitted. If the defendant concedes to the 
 plaintiff a -prima facie case, the right to open and close belongs 
 
 1 Osborne v. Kline, 18 Neb. 344. 25 
 N.W. Rep. 360; Lexington, etc., Co. v. 
 Paver, 16 Ohio, 324, 330; Mizer t. Bris- 
 tol, 30 Neb. 13S, 46 N. W. Rep. 293; 
 Johnson v. Josephs, 75 Me. 544; Dille 
 v. Lovell, 37 Ohio St. 415; Swafford v. 
 Whipple, 3 G.Greene, 261, S. C. 54 Am. 
 Dec. 49S; Baltimore, etc., Co. v, Mc- 
 Whinney, 36 Ind. 430; Mercer :■. Whall, 
 5 Ad. & El. (N. S.) 447; Cunningham 
 v. Gallagher, 61 Wis. 170; Camp v. 
 Brown. 48 Ind. 575; Rahm v. Deig, 121 
 Ind. 283; Turner v. Cool, 23 Ind. 56; 
 Hyatt v. Clements, 65 Ind. 12; Burck- 
 halter v. Coward, 16 So. Car. 435; Ber- 
 tram! -'. Taylor, 32 Ark. 470. 
 
 1 Johnson v. Maxwell. 87 X C. 18; 
 Jackson v. Hesketh, 2 Stark R. 454; 
 Bowen v. Spears, 20 Ind. 140; Jackson 
 v. Pittsford, 8 Blackf. [94; Montgomery 
 V. Swindler, 32 Ohio St. 22 \. 226; Da- 
 vidson v. Henop, 1 Cranch. C. C. : s o; 
 Churchill V. Lee, 77 N . C. 3 1 1 : Zchner 
 v. Kepler, 16 Ind. 290; Bowen v. Spears, 
 20 Ind. 146; Buzzell v. Snell, 25 N. II. 
 474; Viele v. Germania In-.. Co., 26 la. 
 ■q; Ridgway v. Ewbank, 2 Moody & 
 
 Rob. 217; Rials v. Powell (Ga.), 9 S. E. 
 Rep. 613. 
 
 3 Clodfelter v. Hulett, 92 Ind. 426; 
 Sodousky v. McGee, 4 J. J. Marsh. 267; 
 Central Bank v. St. John, 17 Wis. 157. 
 
 4 Thurston v. Ken net t, 22 X. H. 151; 
 Huntington v. Conkey, t,:-, Barb. 21S; 
 McCormick, etc., Co. v. Gray, 100 Ind. 
 285; City of Aurora v. Cobb, 21 Ind. 
 493; Campbell v. Roberts. 66 Ga. 733; 
 Conselyea v. Swift, 103 X.Y. 604; See- 
 kel v. Norman, 78 Iowa, 254, 43 X. W. 
 Rep. 190; P. irks v. Young, 75 Texas, 
 278; Firemans Ins. Co. v. Schwing 
 (Ky.), n S. \V. Rep. 14; Stith v. Ful- 
 linwieder, ;o Kan. 73, 10 Pac. Rep. 314. 
 
 5 Robbins v. Spencer, 121 Ind. 594, 22 
 N. E. Rep. 660; Rothrock v. Perkin- 
 
 '•1 [nd. 39; Bradley v. Clark, 1 
 Cush. 293; Turner ;■. Cool, 27, Ind. 56; 
 
 Shulse : p . McWilliams, 104 Ind. 512; 
 Stayner :\]oyi:K.', 120 Ind. 99. 22 X. E. 
 
 Rep. 89. 
 
 6 Millerd v. Thorn, 56 X. Y. 40;, 
 Lisl v. Kortepeter, 26Ind.27; McLees 
 v. Felt, 11 Ind. 218.
 
 616 
 
 ERROR I\ JUDICIAL PROCEEDINGS. 
 
 to him. 1 Perhaps as good a general test as can be suggested 
 is supplied by the answer to the question, who must do the acts 
 or give the evidence required to change the existing state of 
 things? If the defendant is the actor and must give evidence 
 to alter the state of things shown by the pleadings to exist he 
 'has the burden, and with the burden possesses the correlative 
 right to open and close the case, for the right generally vests 
 in the party who has the burden. 2 It may be prejudicial error 
 
 1 Shank v. Fleming, 9 Ind.189; Judah 
 v. Trustees, etc., 23 [nd.272; Goodrich 
 v. Friedersdorff, 27 Ind. 30S; State, 
 etc., Board v. Gray, 54 Ind. 91. Where 
 the defendant pleads a counter-claim 
 he has the open and close. Schee v. 
 McQuillken, 59 Ind. 269; McCormick, 
 etc., Co. v. Gray, 100 Ind. 285. In the 
 case last cited it was said: " Under the 
 pleadings the plaintiff was entitled to 
 recover its whole demand without any 
 evidence, unless the defendant by his 
 evidence established his counter-claim. 
 The defendant, therefore, was entitled 
 to open and close." But the right to 
 open and close the case has been held 
 not to extend in all cares to the right to 
 open and close the argument. Thus, 
 where the plaintiff has the burden on 
 some issues and the defendant the bur- 
 den on others, and the plaintiff offers 
 no evidence whatever upon the issues 
 on which he has the burden, the de- 
 fendant is entitled to open and close the 
 argument. Reynolds v. Baldwin, 93 
 Ind. 57, 59; Zehner v. Kepler, 16 Ind. 
 290; Williams v. Allen, 40 Ind. 295. 
 In Zehner v. Kepler, supra, the court 
 said: " In such case upon the close of 
 the evidence, the plaintiff having of- 
 fered no evidence in support of the issue 
 ng upon him, it would seem to be 
 eminently proper for the court to award 
 the opening and closing of the argu- 
 ment to the defendant. If any evidence 
 at all is given to the jury having ;• ten- 
 dency to support the issue devolving 
 
 upon the plaintiff, he would, of course, 
 be entitled to have it passed upon by the 
 court, and to open and close the argu- 
 ment. Otherwise not, and this may 
 properly be determined by the court. 
 Crookshank v. Kellogg, 8 Blackf. 256." 
 So admissions on the trial may control 
 the question. Hall v. Weare, 92 U. S. 
 72S, 738; Love v. Dickerson, 85 N. C. 
 5; Viele v. Germania Ins. Co., 26 
 Iowa, 9; Mann v. Scott, t, 2 Ark. 593, 
 596; Richards V. Nixon, 20 Pa. St. 19; 
 Cross V. Pearson, 17 Ind. 612. Error 
 in refusing a party the right to open 
 and close is not cured by permitting the 
 party claiming it the right to open the 
 argument. Penhryn Slate Co.f. Meyer, 
 8 Daly, 61. In an appeal from proceed- 
 ings to appropriate lands the land- 
 owner is entitled to the open and close. 
 Indiana, etc., Co. v. Cook, 102 Ind. 
 133; Burt v. Wiggles worth, 117 Mass. 
 302; Minnesota, etc., Co. v. Doran, 
 17 Minn. 18S; Oregon, etc., Co. v. 
 Barlow, 3 Ore. 311; Connecticut, 
 etc., Co. v. Clapp, 1 Cush. 559, Peed i<. 
 Brenneman, 89 Ind. 252. 
 
 2 Chesley v. Chesley, 37 N. H. 229; 
 Daviess v. Arbuckle, 1 Dana, 525; 
 Huntington v. Conkey, 33 Barb. 218, 
 228; Boyce v. Lake, 17 So. Car. Rep. 
 4S1; Kennedy v. Moore, 17 So. Car. 
 464; Camp v. Brown, 48 Ind. 575; Lit- 
 tlejohn v. Greeley, 13 Abb. Pr. 41, 45; 
 Young v. Highland, 9 Gratt. 16; Wrighl 
 v. Abbott. 85 Ind. 154; Sanders t\ San- 
 ders, 30 So. Car. 207, 9 S. E. Rep. 94.
 
 PREJUDICIAL ERROR. 617 
 
 to permit counsel in the opening statement to the jury to intro- 
 duce matters that can not be allowed to go in evidence. 1 It is 
 proper for the court to refuse to permit counsel to argue ques- 
 tions of law at length to the jury in the opening statement, 2 but 
 it is proper to permit counsel to state to the jury the case both 
 as to the law and the evidence. 3 It is, however, not prejudicial 
 error for the court to impose a reasonable limitation upon coun- 
 sel. 1 While it is proper for counsel to state in general the facts 
 of the case, yet they can not successfullv insist upon the right 
 to rehearse the evidence in minute detail, for in this regard the 
 rule as to the opening statement is different from the rule ap- 
 plicable to arguments made after the delivery of the evidence. 5 
 On the other hand, counsel can not be compelled to state the 
 items of evidence in the opening statement. 6 There is much 
 conflict among the decisions as to whether the party can be so 
 bound by his opening statement as to authorize the court to 
 direct a verdict against him in cases where no cause of action 
 is shown. 7 It seems to us that no general rule can be formu- 
 lated that will fit all cases, since much must depend upon the 
 peculiar circumstances of the particular case. Where counsel 
 have a right to use an instrument of evidence for the purpose 
 of enabling the jury to comprehend the facts, it is prejudicial 
 error for the court to deny them that right. 8 It would unjustly 
 
 1 Duncombe V. Daniell, S Carr & P. Pollock are interesting and instructive. 
 222; Hennies v. Vogel, 87 111. 242; Mc- 4 Porters. Throop, 47 Mich. 313, 11 
 Lain v. State, iS Neb. 154, 24 N. W. N. W. Rep. 174; Ayrault v. Chamber- 
 Rep. 720; Stevens v. Webb, 7 Carr & lain, 33 Barb. 229; Anderson v. State, 
 P. 60; People v. Montague, 71 Mich. 104 Ind. 467, 4 N. E. Rep. 63; Walsh v. 
 447; Scripps v. Reilly, 35 Mich. 371, S. People, SS N. Y. 45S; Fraser v. Jehni- 
 C. 24 Am. Rep. 575. son. 42 Mich. 206. 
 
 7 People v. Carty, 77 Cal. 213, 19 B Scripps v. Reilly, 35 Mich. 371, 392 ; 
 
 Pac. Rep. 490. See, generally, People Kelly v. Troy, etc., Co.. 3 Wis. 254. 
 
 v. Goldenson, 76 Cal. 32S. 6 Scripps v. Reilly, 35 Mich. 371. 
 
 3 People v. Chalmers, 5 Utah. 201, 14 7 Clows v. Bank. 105 N. Y. 39S; Os- 
 
 Pac. Rep. 131; Campbell v. City of canyan v. Anns Co., 103 U. S. 261; 
 
 Kalamazoo, 80 Mich. 655. Sec. gen- Ward v. Jewett, 4 Robt. 714; Smith v. 
 
 erally, People v. Wilson, 55 Mich. 506, Commonwealth, etc., Co., 10 Wis 522, 
 
 513; Holmes f. Jones, 121 N.Y.46i;The 5 N.W. Rep. S04. Sec Hearing v. Bell, 
 
 Work of the Advocate, 209, and au- 5 Hill. 291; Sawyer v. Chambers, 43 
 
 thorities cited in note 1; Darby v.Ouse- Barb. 622; Willev v. State. 52 Ind. (.21. 
 
 ley. 36 Eng. L. & Eq. 518525. In the B Battishill v. Humphrey, 64 Mich. 
 
 case last cited the observations of Baron 494, 513, 31 N. W. Rep. 894. In the
 
 618 ERROR I\ JUDICIAL PROCEEDINGS. 
 
 narrow the scope of the opening statement to deny counsel 
 the privilege of making it full and clear enough to enable the 
 jury to understand just what they were called upon to try, and, 
 on the other hand, it would be a useless waste of time and a 
 means of producing confusion to allow counsel to give minute 
 and specific details of the case. Remarks made by the judge 
 during the progress of the trial, if material and improper, may, 
 when properly excepted to and brought into the record, con- 
 stitute prejudicial and available error, although they may not, 
 in strictness, be instructions as to the law of the case. 1 It is 
 obvious that jurors may be influenced as effectively by the re- 
 marks of the judge during the progress of the trial as by formal 
 instructions, and where such remarks are likely to exert a prej- 
 udicial influence upon the jury they may be made available for 
 the reversal of the judgment, but where the remarks are not 
 likely to have that effect there is no available error, although 
 the statements of the court were improper. 2 It has been held 
 that error in making an improper remark may be cured by in- 
 structing the jury to disregard it, 3 but it is doubtful whether 
 this doctrine is sound ; at all events, it is one to be carefully 
 limited. It is proper for the court to reinstruct the jury when 
 necessary. 4 but it is prejudicial error to go into the jury room 
 
 case cited it was held prejudicial error duty of the court to suppress any dem- 
 
 to refuse to permit counsel in an open- onstration that may work harm to a 
 
 ing statement for the defense to make party. Woolfolk v. State, Si Ga. 551, 8 
 
 use of a diagram that was afterwards S. E. Rep. 724. If a party by miscon- 
 
 properly admitted in evidence. duct calls forth a remark that injures 
 
 1 Mcintosh v. Mcintosh, 79 Mich, him he can not complain. Bowden v. 
 
 198, 41 N. W. Rep. 592; Chesapeake, Bailes, 101 N. C. 612, S S. E. Rep. 342; 
 
 etc., Co. v. Barlow, S6 Tenn. 537, 8 S. Krapp v. Hauer, 38 Kan. 430, 16 Pac. 
 
 YV. Rep. 147; Phenix Ins. Co. v. Moog, Rep. 702; Chicago, etc., Co. i'. Holland, 
 
 81 Ala. 335, 1 So. Rep. 108; Whitelaw 122 111. 461, 13 N. E, Rep. 145. 
 r. Whitelaw, S3 Va. 40, 1 S. E. Rep. 407; s People v. Northey, 77 Cal. 618, 19 
 
 State w.Tickel, 13 Nev. 502, 508; People Pac. Rep. S65. 
 
 v Bonds, 1 Nev. 33,36; State v. Ah * Hogg v. State, 7 Ind. 551; Colum- 
 
 Tong, 7 Nev. 14S, 152; McMinn v. bus, etc., Co. v. Powell, 40 Ind. 37; 
 
 Whelan, 27 Cal. 300; Sparks v. State, Farley v. State, 57 Ind. 331; Philips v. 
 
 59 Ala. 82, 87; Terre Haute, etc., Co. New York, etc., Co., 53 Hun. 634, 
 
 v. Jackson, Si Ind. 19. 6 N. Y. Supp. 621; Wilkinson v. 
 
 * Bushnell v . Crooke, etc., Co., 12 Col. St. Louis, etc.. Co., 102 Mo. 130, 
 
 247, 21 Pac.Rep. 931; Favors v. Johnson, 14 S. W. Rep. 177. Communica- 
 
 79 Ga. 553. 4 S. E. Rep. 925. It is the tions between court and jury should
 
 PREJUDICIAL ERROR. 
 
 619 
 
 and there read instructions in the absence of parties and coun- 
 sel. 1 In this State the general rule is that it is prejudicial error 
 to permit the jury to take instruments of evidence with them 
 when they retire for deliberation,- but elsewhere there is much 
 diversity of opinion upon the question. 3 It has, however, been 
 held that the rule does not apply to the pleadings in the case, 
 nor to instruments forming necessary and proper exhibits to 
 the pleadings, 1 nor does the rule apply where it affirmatively 
 appears that the jury did not make any use of the papers taken 
 by them to their consultation room. 5 The general rule is that 
 it is improper to permit jurors to hold communications with par- 
 ties or third persons/' and that it is error to allow an officer to 
 
 be in presence of parties or counsel. 
 Sargent v. Roberts, i Pick. 337; Ho- 
 berg v. State, 3 Minn. 262; Watertown 
 Bank v. Mix, 51 N. Y. 558; Read v. 
 Cambridge, 124 Mass. 567; State v. Pat- 
 terson, 45 Vt. 30S. Where parties con- 
 sent to sending instructions to the jury 
 room there is no error. See Parmalee 
 v. Sloan, 37 Ind.469; Chouteau v. Jupi- 
 ter Iron Works, 94 Mo. 3SS, 7 S. W. 
 Rep. 467. 
 
 1 Fish v. Smith, 12 Ind. 563; Smith 
 v. McMillen, 19 Ind. 391 ; Reilly v. Bader 
 46 Minn. 212, 48 N. W. Rep. 909; Hall 
 v. State, 8 Ind. 439; Moody v. Pomeroy, 
 4 Denio, 115; Taylor v. Betsford, 13 
 Johns. 487; Kirk v. State, 14 Ohio, 511; 
 Benson v. Clark, 1 Cow. 258; O'Con- 
 nor v. Guthrie, 11 Iowa, So; Crabtree 
 v. Hagenbaugh, 23 111. 349; State v. 
 Garrand, 5 Ore. 216; Bunn v- Croule, 
 10 Johns. 239. 
 
 2 Chance v. Indianapolis, etc., Co., ^2 
 Ind. 472; Eden v. Lingenfelter, 39 Ind. 
 19; Lotz v. Briggs, 50 Ind. 34C), 34S; 
 Nichols v. State, 65 Ind. 512, 521. In 
 the case last cited it was said: " We 
 regard it as settled law in this State 
 that it is error to permit, over the ob- 
 jections and exceptions of the opposite 
 party, items of documentary evidence 
 to be taken to their consultation room 
 by the jury." See Cheek v. State, 35 
 Ind. 492; Newkirk p. State, 27 Ind. 1. 
 
 3 Tabor e.Judd, 62 N. H. 28S; Blaz- 
 inski v. Perkins, 77 Wis. 9, 45 N. W. 
 Rep. 947; Bulen v. Granger, 63 Mich. 
 311, 29 N. W. Rep. 71S; Farnum v. 
 Pitcher, 151 Mass. 470, 24 N. E. Rep. 
 590; Leonard v. Armstrong, 73 Mich. 
 577; State v- Tompkins, 71 Mo. 613; 
 Mullen v. Morris, 2 Pa. St. 85; Will- 
 iams v- Thomas, 7S N. C. 47; Burton 
 v. Wilkes, 66 N. C. 604; Kalamazoo, 
 etc., Co. v. McAlister, 36 Mich. 327; 
 Rainforth v. People, 61 111. 365; Watson 
 v. Walker, 23 N. H. 471, 497; O'Neall 
 v. Calhoun, 67 111. 219; Harriman r. 
 Wilkins, 20 Me. 93; Jessup v. Eldridge, 
 Coxe (N. J.), 401; People v. Page, 1 
 Idaho, 102, 1 89; In re Foster's Will. 
 34 Mich. 21; Moore v. McDonald, 68 
 Md. 321, 12 Atl. Rep. 117; Cavanaugh 
 v. Buehler, 120 Pa. St. 441, 14 Atl. Rep. 
 391; Summers v. Greathouse, S7 Ind. 
 205, 207. 
 
 4 Snyder v. Braden, 5S Ind. 143; Col- 
 lins v. Frost, 54 Ind. 242; Shulse v. Mc- 
 Williams, 104 Ind. 512. 
 
 5 Beresch ©. State, 13 Ind. 434. See 
 Achcv v. State, 64 Ind. 56,63; Matlock 
 V. Todd, 19 Ind. 130, 132; Bell v. Car- 
 lev. 3 Ind. 577. 
 
 6 Barlow v. State, 2 Blackf. 114; Cat- 
 .erlin V. City of Frankfort, S7 Ind. 45; 
 l'rie>t v. State, 68 Ind. 569; Dower :. 
 Church, 21 W. Va. 23, 55; March r\ 
 State, 44 Texas, 64, 82; People t>.B
 
 620 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 remain in the consultation room during the deliberations of the 
 jury, 1 but the error is not always available for the reversal of the 
 judgment, for it may be that it was made to appear that no 
 harm resulted to the party from the wrongful conduct of the 
 jurors, officers or third persons. 2 In a former paragraph 3 we 
 stated the general rule to be that unless it affirmatively appears 
 that the misconduct was probably prejudicial there is no avail- 
 able error, and that is the general rule, but the effect of the mis- 
 conduct may be inferred from the character of the acts. 4 
 
 ;j G72. Misconduct of Parties and Counsel — One of the sources 
 of prejudicial error is found in the behavior of counsel and 
 
 20 Cal. 432; Epps v. State, 19 Ga. 102; 
 Martin v. People, 54 111. 225; Poole v. 
 Chicago, etc., Co., 2 McCrary, 251; 
 Hamilton v. Pease, 38 Conn. 115; Caw 
 v. People, 3 Neb. 357; Hager v. Hager, 
 38 Barb. 92; McKenzie v. State, 26 
 Ark. 334; Hill v. State, 64 Ga. 453; 
 State v. Circuit, 31 N. J.L.249; Louis- 
 ville, etc., Co. V. Hendricks, 12S Ind. 
 462, 2S N. E. Rep. 58; Kennedy v. Holla- 
 day, 105 Mo. 24, 16 S. W. Rep. 6SS. 
 
 1 Houk v. Allen, 126 Ind. 56S; Rick- 
 ard v. State, 74 Ind. 275; Fitzgerald v. 
 Goff, 99 Ind. 2S; Clayton v. State, 100 
 Ind. 201 ; McClary v. State, 75 Ind. 260. 
 In Doles v. State, 97 Ind. $$$, 564, it is 
 held that counter affidavits may show 
 that no harm resulted to the complain- 
 ing party. 
 
 2 Doles v. State, 97 Ind. 555; Fitz- 
 gerald v. Goff, 99 Ind. 28; Clayton v. 
 State, 100 Ind. 201; De Hart v. Etnire, 
 121 Ind. 242; Cooper v. State, 120 Ind. 
 377. In Waterman v. State, 116 Ind. 
 51, 52, it was said: "Ordinarily, the 
 unexplained presence of the bailiff in 
 the jury room during the deliberations 
 of the jury is such misconduct as 
 vitiates their verdict. In the presenl 
 case the affidavit of appellants' counsel 
 discloses the fact that counsel saw. the 
 bailiff £0 into the jury room without 
 any invitation or signal from within 
 
 and that this was repeated again and 
 again in his presence without protest 
 or objection, although the counsel was 
 present in court at the time. Miscon- 
 duct of any one connected with the 
 trial, which is known to and acquiesced 
 in without objection by the party or 
 his counsel, even though it be of a char- 
 acter which might otherwise vitiate the 
 verdict, can not afterwards be made 
 available for the purpose of setting 
 aside the verdict." Hill V . Corcoran, 15 
 Col. 270, 25 Pac. Rep. 171; Bledsoe v. 
 Bledsoe (Ky.), 1 S. W. Rep. 10; Raul 
 v. Brown (R. I.), 20 Atl. Rep. 10; St. 
 Paul, etc., Co. v. Kelly, 43 Kan. 741, 23 
 Pac. Rep. 1046; Dozenback v. Raymer, 
 13 Col. 451, 22 Pac. Rep. 7S7. 
 
 3 Ante, § 594. 
 
 * Atchison, etc., Co. v. Bayes, 42 
 Kan. 609, 22 Pac. Rep. 741; Johnson 
 v. Tyler, 1 Ind. App. 387, 27 N. E. Rep. 
 643; Welch v. Taverner, 7S Iowa, 207, 
 42 N. W. Rep. 650; Vose v. Muller, 23 
 Neb. 171. 36 N. W. Rep. 583; Griffin 
 v. Harriman, 74 Iowa, 436, 3S N. W. 
 Rep. 139; Repath v. Walker, 13 Col. 
 109, 21 Pac. Rep. 917; Kruidener v. 
 Shields, 77 Iowa, 504, 42 N. W. Rep 
 432; Cottle v. Cottle, 6 Greenl. 140, S. 
 C. 19 Am. Dec. 200; Phillipsburgh Bank 
 v. Fulmer, 2 Vroom (N.J.), 52, S. C.86 
 Am Dec. 193.
 
 PREJI DICIAL ERROR. 
 
 621 
 
 parties. The misconduct of a party or his counsel may be 
 such as to require a reversal of the judgment. It is not, how- 
 ever, every departure from the rules of propriety that will con- 
 stitute available error, for two things must concur — misconduct 
 and probable injury to the opposite party. The misconduct 
 may, of course, be such as to authorize the inference that in- 
 jury resulted, and where this is so, injury will be presumed. 
 Where parties attempt to unduly influence the jury or a juror, 
 error of a prejudicial nature is generally inferred, and rightly 
 so, for the long established rule is that "presumptions go 
 against the wrong-doer." ' A party is guilty of misconduct 
 constituting prejudicial error if he employs illegal means to 
 gain an advantage in the selection of jurors. 2 Tampering with 
 witnesses is such a wrong as constitutes available error wher- 
 ever it appears that there was any corrupt or illegal means 
 employed to influence the testimony of the witness. 3 Miscon- 
 
 1 Hilton v. Southwick, 17 Me. 303, S. part of the prevailing party there is no 
 
 C. 35 Am. Dec. 253. In the case cited conflict in the authorities. In such cases 
 
 it was said: "If there appeared the the court will set aside the verdict with- 
 
 least attempt of the plaintiff to seek out any inquiry as to what effect the 
 
 and influence the juror, the verdict misconduct had upon the jury. It 
 
 ■would be set aside." Other courts ex- should be firmly held by the courts and 
 
 press the general doctrine thus: "For known to all litigants as an inflexible 
 
 any, even the least Intermeddling with a rule of law, that no party to a suit can 
 
 juror, the verdict will always be set profit by his own misconduct, and that 
 
 aside." Knight p. Freeport, 13 Mass. 218; a verdict rendered under such circum- 
 
 Amherst©. Hadley, 1 Pick. 38; Allen©, stances will be instantly set aside." 
 
 Aldrich, 29 N. II. 63; Tucker p. South The court cited Davis v. State. 35 Ind. 
 
 Kingstown, 5 R. 1. 558; Cottle v. Cottle, 490. See, upon the general subject, 
 
 6 Greenl. 140, S. C. 19 Am. Dec. 200; Johnson v- Hobart, 45 Vc<.\. Rep. 542; 
 
 Walker v. Walker, 11 Ga. 203; Mad- Tabor v. Judd, 62 N. H. 288. 
 den v. State, 1 Kan. 340; Studley v. 8 Boyce v. Aubuchon, 34 Mo. A.pp. 
 
 Hall, 22 Me. 19S; Perry v. Bailey, 12 315, 322, distinguishing O'Brien v. Vul- 
 
 Kan. 539; Phillipsburgh Bank v. Ful- can Iron Works, 7 Mo. App. 257; State 
 
 mer, 31 N. J. L. 52; Pittsburgh, etc., ©.Gleason, s ^ Mo. 582. 
 Co. v- Porter, 32 Ohio St. 32S; Pelham 3 The general rule is recognized in 
 
 v. Page, 6 Ark. 535. In Huston v. Beeks v. Odom, 70 Texas. [83, 7 S. W. 
 
 Vail. 51 Ind. 299, 304, the court said: Rep. 702. but it was there held that if 
 
 " The authorities are not uniform where it clearly appeared that the verdict was 
 
 the alleged misconduct is on the part right the judgment would not be re- 
 
 of the persons not parties to the suit, versed, the court saying: "Weareofthe 
 
 as to whether it must be further shown opinion, however, where a witness testi- 
 
 that the verdict was thereby affected, ties under such an agreement, and it is 
 
 but where the misconduct is on the not made known to the court and jury
 
 (J 2 2 
 
 ERROR IN JUDICIAL PROCEED] 
 
 duct of a party in suppressing evidence, or in preventing the 
 attendance of a witness by trickery or by other illegal means, 
 may constitute prejudicial error. 1 The misconduct of counsel 
 in the management of a particular case is as to that case the 
 misconduct of the client. If counsel's violation of the rules 
 of law or procedure is of such a material character as to prob- 
 ably operate to the injury of the opposite party error may be 
 successfully alleged in cases where an objection is appropriately 
 saved and presented. If counsel go entirely outside of the 
 evidence in argument and bring into the case improper matters 
 of a clearly prejudicial nature, the error may be made available 
 for a reversal of the judgment. 2 But errors of inference either 
 as to matters of law or of fact are not such as will be available 
 for the reversal of the judgment from which the appeal is prose- 
 cuted. 3 Where the opposite counsel provokes the misconduct 
 
 trvingthe case, that a new trial should be 
 granted, unless, in view of all the other 
 evidence in the cause, no other verdict 
 than that found could have been legally 
 reached. Such agreements are likely 
 to lead to corruption, are contrary to 
 public policy, and must meet the con- 
 demnation of all fair minded men, 
 whether the agreement relates to evi- 
 dence to be given as an expert or not." 
 In so far as the case from which we 
 have quoted states the general rule, we 
 believe it correct, but we think it wrong 
 in holding that the appellate tribunal 
 will look to the evidence to ascertain 
 whether injury resulted. Where there 
 is a corrupt agreement with a witness 
 as to a material point there should not 
 be, as we believe, any scrutiny of the 
 other evidence. 
 
 1 Davis v. Daveril, u Mod. 141; Mont- 
 sesson v. Randle, Buller, N. P. 328. 
 
 2 Schlotter v. State, i27lnd.493; Ru- 
 dolph a.Vandwerlen, 92 Ind. 34; School 
 Town of Rochester v. Shaw, 100 Ind. 
 26S; Bessette v. State, 101 Ind. 85; 
 Brow v. State, 103 Ind. 133; Campbell 
 v. Maher, 105 Ind. 383; Nelson ?. Welch, 
 115 Ind. 270; Troyer v. State, 115 Ind. 
 
 331; Staser v. Hogan, 120 Ind. 207: 
 Kinnaman v. Kinnaman, 71 Ind. 417; 
 St. Louis, etc., Co. v. Myrtle, 51 Ind. 
 566; Fletcher v. State, 49 Ind. 124; 
 Ferguson v. State, 49 Ind. 33; Tucker 
 v. Henniker, 41 N. H. 317; Nalley v. 
 State, 28 Texas App. 3S7, 13 S.W. Rep. 
 670; Cook v. Doud, 14 Col. 483, 23 Pac. 
 Rep. 906; Perkins v. Burley, 64 N. H. 
 524, 15 Atl. Rep. 21; Henry v. Sioux 
 City, etc., Co., 70 la. 233, 30 N.W. Rep. 
 630; Commercial Fire Ins. Co. v. Allen, 
 80 Ala. 571, 1 So. Rep. 202; Huckell v. 
 McCoy, 38 Kan. 53, 15 Pac. Rep. S70. 
 If counsel comment upon the fact that a 
 change of venue has been taken and the 
 court, where timely objection is inter- 
 posed, declines to interfere there is 
 prejudicial error. Farman v. Lauman, 
 73 Ind. 568; Paulman v. Claycomb, 75 
 Ind. 64; Worley v. Moore, 97 Ind. 15. 
 
 3 Sage v. State, 127 Ind. 15, 29; War- 
 ner v. State, 114 Ind. 137; Proctor %,. 
 DeCamp, S3 Ind. 559; Combs v. State, 
 75 Ind. 215; Goff v. Scott, 126 Ind. 200; 
 Mosiero. Stoll, 11c Ind. 244; Brower 
 v. Goodyer, 88 Ind. 572; Carter v. Car- 
 ter, 101 Ind. 450. Mere immaterial re- 
 marks will not constitute prejudicial
 
 PREJUDICIAL ERROR. 
 
 623 
 
 of his adversary and opens the door to improper argument he 
 can not, as a general rule, successfully complain of the error 
 which he himself invited. 1 If, however, the counsel should 
 go further than the wrong of the opposite party invited 
 him to go it is probable that, if his misconduct is material and 
 prejudicial, the court would feel bound to set aside the verdict. 
 Where the court promptly and decisively calls counsel to order 
 and fully and clearly instructs the jury to disregard the im- 
 proper remarks there is ordinarily no available error, 2 but coun- 
 sel must be promptly checked and the effect of the improper 
 statements effectively dissipated. 3 Permitting counsel in civil 
 cases, over the objection of the opposite party, to read from 
 legal treatises is, in general, prejudicial error. 4 Improper re- 
 marks by counsel may, if objection is appropriately interposed 
 and exception properly reserved, be available for the reversal 
 of the judgment in cases where they are material and probably 
 injurious to the complaining party. 5 
 
 § 673. Interrogatories to the Jury — It is the duty of the trial 
 court to submit to the jury interrogatories that are properly 
 
 error. City of La Fayette v- Weaver, 
 92 Ind. 477; Buscherr. Scully, 107 Ind. 
 246; Boyle v. State, 105 Ind. 469; 
 Shular v. State, 105 Ind. 2S9; Epps v. 
 State, 102 Ind. 539: Anderson v. State, 
 104 Ind. 467; Morrison v. State, 76 Ind. 
 335; Chicago, etc., Co. v. Sullivan (111.), 
 17 X. E. Rep. 460. 
 
 1 Miner v. Louman, 66 Mich. 530, ^ 
 X. W. Rep. S36; Willis v. McNatl 
 7; Tex. 69, 12 S.W.Rep. 47S. See, gen- 
 erally, \V T atson v. St. Paul, etc., Co. 
 42 Minn. 46, 43 X.W. Rep. 904; Galves- 
 ton, etc., Co. v. Cooper, 70 Texas. 67; 
 Jackson v. Harby, 70 Texas, 410; George 
 v. Swafford, 75 Iowa, 491; Chicago, 
 etc., Co. v. Fietsam, 123 111. 518; Drew 
 v. State, 124 Ind. 9, 23 N. E. Rep. 109S; 
 Huckshold v. St. Louis, etc., Co., 90 Mo. 
 54S, 2 S. W. Rep. 794. 
 
 5 Kern 0. Bridwell, 1 [9 Ind. 226, 21 N. 
 E. Rep. 664; City of Evansville 0. Wil- 
 ter, S6 Ind.414; People v. Scharnweber, 
 
 119 111. 445, 10 N. E. Rep. 16; Little 
 Rock, etc., Co. v. Cavenesse, 4S Ark. 
 106, 2 S. W. Rep. 505; Frederick^ p. 
 Judah, 73 Cal. 604, 15 Pac. Rep. 305; 
 Jackson v. Harly, 70 Tex. 410, S S. W. 
 Rep. 71. 
 
 3 Hunt v. State, 2S Texa- App. 149, 
 12 S. W. Rep. 737; State v. Tennison, 
 42 Kan. 330. 22 Pac. Rep. 429; Augusta, 
 etc., Co. v. Randall, 85 Ga. 297, 1 1 S. E. 
 Rep. 706. 
 
 4 Porter v. Choen, 60 Ind. 338; John- 
 son x'. Culver, in> Iiul. 27V House :-. 
 McKinney. 54 Ind. 240; Scott v. Scott, 
 124 [nd. 66; Berrj ;. Mate, ioGa. 511; 
 Wightman v. City of Providence, 1 
 Clifford C. C. 524; Rolfe v. Rumford, 
 66 Me. 564; People ;•. Anderson, 44 
 Cal. 65. See Work of the Advocate, 
 500-505. 
 
 5 Baldwin v. Grand Trunk Ry.Co.,64 
 X. H. 596, 15 Atl. Rep. 411; Shorbt). 
 Kinzie. 100 Ind. 429.
 
 624 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 framed, requested at the proper time and in the appropriate 
 mode. 1 A refusal to submit such interrogatories is generally 
 prejudicial error, but there is no material error unless the in- 
 terrogatories are properly framed and their submission oppor- 
 tunely and appropriately requested. 2 The court can not with- 
 draw from the jury proper and material interrogatories which 
 have been duly submitted, 3 but it may withdraw improper in- 
 terrogatories. 1 If interrogatories are withdrawn and the record 
 does not affirmatively show that they were such as the party 
 had a right to have answered, the presumption on appeal will 
 be that they were such interrogatories as might rightfully be 
 
 1 Boots v. Griffiths, 97 Ind. 241 ; Will- 
 iamson ^.Yingling, So Ind. 379; Miller 
 v. White River School Tp., 101 Ind. 503; 
 Clegg v. Waterbury, S8 Ind. 21 ; Buntin 
 v. Rose. 16 Ind. 209; Sage v. Brown, 34 
 Ind. 464; Maxwell v. Boyne, 36 Ind. 
 120; Reeves v. Plough, 41 Ind. 204; 
 Summers v. Greathouse, 87 Ind. 205; 
 American Central Ins. Co. v. Hatha- 
 way, 43 Kan. 399, 23 Pac. Rep. 428; 
 Wichita, etc., Co.t>. Fecheimer, 36 Kan. 
 45, 12 Pac. Rep. 362; Clark a. Missouri, 
 etc., Co., 35 Kan. 350, 11 Pac. Rep. 134; 
 City of Wyandotte v. Gibson, 25 Kan. 
 236; Farnsworth v. Coots, 46 Mich. 117. 
 Where the statute makes it discretion- 
 ary with the court to submit or refuse 
 to submit interrogatories the rule stated 
 in the text does not apply. Lufkins v. 
 Collins (Idaho), 10 Pac. Rep. 300; Mc- 
 Lean v. Burbank, 12 Minn. 530; Swift 
 v. Mulkey, 14 Oregon, 59, 12 Pac. Rep. 
 76; Cole v. Crawford, 69 Texas, 124, 5 
 S. W. Rep. 646. 
 
 2 See " Request for the submission of 
 special interrogatories to the jury," and 
 " Special interrogatories to jury — What 
 rulings are harmless although errone- 
 ous." See, also, McMahon v. Sankey, 
 133 111. 636, 24 N. E. Rep. 1027. As to 
 w lun objection must be made,see Brook- 
 er o.Weber, 41 Ind. 426; Richardson v. 
 Weare, 62 N". II. So. What interroga- 
 
 tories may be refused : Thomas v. Schee, 
 So la. 237, 49 N. W. Rep. 539; Jackson 
 v. German Ins. Co., 27 Mo. App. <>:; 
 Murdock v. Clarke, 90 Cal. 427, 24 Pac. 
 Rep. 272; Des Moines, etc., Co. v. Polk 
 County, etc., Co. (Iowa), 45 N. W. Rep. 
 773; Chicago, etc., Co. v. Dunleary, 27 
 111. App. 438, S. C. 129 111. 132, 22 N. 
 E. Rep. 151. See, generally, Waymire 
 V. Lank, 121 Ind. 1; Bowen v. Swander, 
 121 Ind. 164; Seekell v. Norman, 78 
 Iowa, 254; Cleveland, etc., Co. v. As- 
 bury, 120 Ind. 289; Toledo, etc., Co. v. 
 Rathmann, 7S Iowa, 28S; Chicago, etc., 
 Co. v. Burger, 124 Ind. 275, 279, 24 N. 
 E. Rep. 981. Where objection is made 
 to part of the interrogatories it will he 
 presumed on appeal that the submission 
 was by consent. Fisk v. Chicago, etc., 
 Co. (Iowa), 4S N. W. Rep. 10S1; Fitch 
 v. Armour, 14 N. Y. Supp. 319. 
 
 3 Summers v. Greathouse, S7 Ind. 205; 
 Duestenberg v. State, 116 Ind. 141, cit- 
 ing, among others, the following cases: 
 Wood v. Ostram, 29 Ind. 177; Noakes v. 
 Morey, 30 Ind. 103; Otter Creek, etc., 
 Co. v. Raney, 34 Ind. 329; Maxwell v. 
 Boyne, 36 Ind. 120; Peters v- Lane, 55 
 Ind. 391. 
 
 4 Continental Ins. Co. v. Yung, 113 
 Ind. 159; Groscap v. Rainier, in Ind. 
 361; Dawson v- Shirk, 102 Ind. 1S4, 18S.
 
 PREJUDICIAL ERROR. 
 
 
 withdrawn. 1 It is error to instruct the jury that answers need 
 not be returned to the interrogatories in the event that a gen- 
 eral verdict is rendered in favor of the party by whom the in- 
 terrogatories are asked, for it is the imperative duty of the 
 court, when proper interrogatories are duly asked, to instruct 
 the jury to answer them in the event that they return a general 
 verdict. 2 In cases where the court, as of right, ultimately de- 
 cides all questions, both of law and fact, as in suits in equity, 
 the matter of submitting interrogatories to the jury is neces- 
 sarily one of discretion, inasmuch as the findings of the jury 
 in such instances are merely advisory, and may be adopted or 
 rejected as the court sees fit. No prejudicial error can in such 
 cases arise out of rulings in submitting or refusing to submit 
 interrogatories to the jury, 3 although material error may, of 
 
 1 Groscap v. Rainier, in Ind. 361, 
 368, citing Myers v. Murphy, Co Ind. 
 282; Foster v. Ward, 75 Ind. 594; Frank 
 r. Grimes, 105 Ind. 346. 
 
 2 Pitzer v. Indianapolis, etc., Co., 80 
 Ind. 569; Lake Erie, etc., Co. v. Fix,SS 
 Ind. 3S1, 3S3; Ogle v. Dill, 61 Ind. 43S, 
 443. The object of the statute provid- 
 ing for the submission of interrogato- 
 ries to the jury is well stated by Casso- 
 day, J., in Ryan v. Rockford Ins. Co., 
 77 Wis. 611, 615. We quote from the 
 opinion in that case the following: 
 "The purpose of thus submitting par- 
 ticular controverted questions of fact is 
 to secure a direct answer free from any 
 bias or prejudice in favor of or against 
 either party. It is a wise provision in 
 certain cases when properly adminis- 
 tered. It has often been demonstrated 
 in the trial of cause- that the non-ex- 
 pert juryman is more liable than the 
 experienced lawyer or judge to be led 
 away from the material issues of fact 
 involved by some collateral circum- 
 stance of little or no significance, or by 
 sympathy, bias or prejudice, and hence, 
 it is common practice for courts in the 
 submission of such particular questions 
 and special verdicts to charge the jury, 
 
 40 
 
 in effect, that they have nothing to do 
 with, and must not consider, the effect 
 which their answers may have upon the 
 controvery or the parties." In Morrow 
 v. Commissioners, 21 Kan. 484, 503, the 
 court said: "The main object of the 
 law is to bring out the various facts 
 separately in order to enable the court 
 to apply the law correctly and to guard 
 against any mi-application of the law 
 by the jury. It is a matter of common 
 knowledge, that a jury, influenced by a 
 general feeling that one side ought to 
 recover, will bring in a verdict accord- 
 inglv where at the same time it will not 
 find a certain fact to have been proved, 
 which in law is an insuperable barrier 
 to a recovery in accord with the general 
 verdict." Much to the same effect are 
 the cases of Buntin p. Rose. 16 Ind ; 
 Davis x'- Town of Farmington. 42 Wis. 
 42^; Durfee v. Abbott, 50 Mich. 479; 
 Ilendrickson v. Walker, t,2 Mich. 68. 
 Partridge r. Gilbert. 3 Duer. i N |. 
 Dempsey V. Mayor. 10 Daly. 417. 
 
 3 Ikerd r r . Beavers, 106 Ind.4S3; Plat- 
 ter -•. Hoard. 103 Ind. 360; Koo 
 Blanton (Ind.). 27 N. E. Rep. 334; Rar- 
 iden v. Rariden (Ind.), 28 N. E. Rep. 
 701; Jennings :■. Durham, 101 Ind. 391;
 
 626 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 course, exist if the ultimate decision is rendered erroneous by 
 the action of the court in finally determining questions of fact 
 or law. There is, we may say in concluding this topic, conflict 
 upon the question whether it is competent for the jury to an- 
 swer that there is no evidence, our court holding that they may 
 do so, 1 but other courts hold a different doctrine. 2 
 
 Pence v. Garrison. 93 Ind. 345; Swales 
 v. Grubbs, 126 Ind. 106; Sheets v. Bray, 
 125 Ind. I,!), PriHinian v. Mendenhall, 
 [20 Ind. 279: Martin v. Martin, 11S 
 Ind. 227; Farmers' Bank v. Butterfield, 
 100 Ind. 229; Ketcham v. Brazil, etc., 
 Co., SS Ind. 515; Israel v. Jackson, 93 
 Ind. 543; Towns v. Smith, 115 Ind^So; 
 Taylor v. Collins, 51 Wis. 123; Will of 
 Carroll, 50 Wis. 437. 
 
 1 Dockerty v. Hutson, 125 Ind. 102; 
 Cleveland, etc., Co. f. Asbury, 120 Ind. 
 2S9; Mitchell v. Robinson, 80 Ind. 2S1, 
 S. C. 41 Am. Rep.Si2; Louisville, etc., 
 Co. v. Thompson, 107 Ind. 442; Max- 
 well v. Boyne, 36 Ind. 120; Gulick v. 
 Connely, 42 Ind. 134; Rowell V. Klein, 
 44 Ind. 290, S. C. 15 Am. Rep. 235; 
 Williamson v. Yingling, So Ind. 379; 
 Terre Haute, etc., Co. v. Barr, 31 111. 
 A pp. 57. 
 
 2 Union, etc., Co. v. Fray, 35 Kan. 
 
 700, 12 Pac. Rep. 9S. If there is evi- 
 dence upon a material point it is, ot 
 course, error for the jury to evade an 
 answer, and our decisions are addressed 
 to cases where there was no evidence. 
 It is difficult to sustain a decision hold- 
 ing that the court may coerce a jury 
 into answering a question contrary to 
 their belief that there is no evidence 
 upon the point, since such a course can 
 not be pursued without invading the 
 province of the jury. To coerce a ver- 
 dict in such a case, would, in effect, be 
 for the court to make the verdict. 
 There can be no doubt of the power to 
 prevent injustice resulting from the 
 failure or refusal of jurors to do their 
 duty, but the remedy is not, as we be- 
 lieve, by coercing the jury to find one 
 way or the other where they are con- 
 vinced that there is no evidence.
 
 CHAPTER VI. 
 
 WAIVER. 
 
 § 674. Available error does not exist § 6S5. 
 where there is an effective 
 waiver. 6S6. 
 
 675. The doctrine of waiver. 
 
 676. A party does not waive a defect 6S7. 
 
 or irregularity of which he is 
 excusably ignorant. 
 
 677. Appearance — Effect of. 
 
 678. Special or qualified appearance. 6SS. 
 
 679. Waiver of objections to the rem- 
 
 edy. 
 6S0. Waiving objections to plead- 6S9. 
 
 ings. 
 681. Failure to demur. 
 6S2. Failure to demand a decision 690. 
 
 upon demurrer. 
 683. Waiver of objections to decis- 691. 
 
 ions on demurrer. 
 6S4. Instances of the waiver of pre- 692. 
 
 liminarv objections. 
 
 Demurrer to the evidence — 
 Waiver of right to jury. 
 
 Introducing evidence after de- 
 murring — Effect of. 
 
 Motion for direction to jury to 
 return a verdict in favor of 
 moving parts — Effect of sub- 
 sequently giving evidence. 
 
 Waiver of objections to plead- 
 ings by demurring to the evi- 
 dence. 
 
 Effect of a demurrer upon the 
 right to make rulings upon the 
 evidence available. 
 
 Waiver as affecting the mode of 
 trial. 
 
 Rulings respecting procedure on 
 the trial — Illustrative case-. 
 
 Rulings on the trial — General 
 doctrine. 
 
 § 674. Available Error does uot Exist where there is an Effective 
 Waiver — A party may always relinquish a right by a voluntary 
 affirmative act, and so he may by silence and inaction, where 
 action is required. If there is silence and inaction where a 
 positive act or speech is required there is a waiver, and where 
 there is a waiver there can be no available error. It is a gen- 
 eral rule of wide sweep broken by very few exceptions, that 
 action is required of parties in court, for silence and inaction 
 are, in the very great majority of cases, regarded as waiving 
 objections. And objections waived in the trial court are com- 
 pletely lost, for they can not be first made on appeal save in 
 very rare cases. 1 
 
 1 Ante, § 4S9. See, also, Louisville, Rep. 1010: Bradwell v. Pittsburgh. 
 etc., Co. v. Rush, 127 Ind. 545, 26 V E. Co., 139 Pa. St. 404, :o Atl. Rep. 1046; 
 
 (627)
 
 G2S 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 675. The Doctrine of Waiver — We have often referred in 
 former pages to the doctrine of waiver, hut it is of such practi- 
 cal importance in trial practice as an incident to appeals and in 
 appellate practice that it requires specific consideration. It 
 may be said that the rule is that what is not well objected to in 
 the trial court and well saved by a proper exception is waived. 
 As to errors relating to the trial it is to be further said that they 
 are waived unless the rulings in which they exist are appro- 
 priately brought before the trial court for review. 1 But errors 
 may be well saved and well presented to the trial court and 
 yet waived on appeal by a failure to present them as the law 
 or the rules of the court require. 2 
 
 § 676. A party does not Waive a Defect or Irregularity of which 
 he is Excusably Ignorant — As a waiver is the voluntary relinquish- 
 ment of a right it is essential that the party against whom a 
 waiver is sought to be made available should have knowledge 
 of the defects or irregularities which it is alleged were waived 
 by him. 3 But it is obvious that this rule can have only a very 
 
 Hormann v. Hartmetz, 12S Ind. 353, 27 
 N. E. Rep. 731; Montana Ry. Co. v. 
 Warren, 137 U. S. 348; Fisk v. Chi- 
 cago, etc., Co., 74 la. 424, 46 N.W. Rep. 
 998; Tibbetts v. Penley, S3 Me. 11S, 21 
 Atl. Rep. 838; Williams v. Thomas, 3 
 New Mex. 324. 9 Pae. Rep. 356; Chi- 
 i, etc., Co. v. Graney (111.), 25 N. E. 
 Rep. 798; Bliley v. Taylor. 84 Ga. 154, 
 163, 13 S. E. Rep. 283; Connelly v. 
 Shamrock, etc., Society, 43 Mo. App. 
 283; Ridenhour v. Kansas City, etc., 
 Co., 102 Mo. 270, 2S3, 14 S.W. Rep. 760. 
 1 Peabody v. Sweet, 3 Ind. 514; New 
 Albany, etc., Co. v. Callow, 8 Ind. 471; 
 Church v. Drummond, 7 Ind. 17: Man- 
 ly v. Hubbard, 9 Ind. 230; Lindlcv v. 
 
 Chaplin v. Sullivan, 128 Ind. 50, 5, 27 N. 
 E. Rep. 425; J. Oberman Brewing Co. 
 v. Ohlerking, ^2 IN- A.pp. 26; Garrigan 
 v. Dickey, 1 Ind. App. 421, 27 N. E. Rep. 
 713; Ridenhour v. Kansas City, etc., 
 Co.. 102 Mo. 270, 2S3, 14 S.W. Rep. 760; 
 Hint/ v. Graupner (111.), 27 N. E. Rep. 
 935; Duigenan v. Claus, 46 Kan. 275, 26 
 Pac. Rep. 699; Memory v. Niepert, 33 
 111. App. 131. 
 
 2 Tharp v. Jamil, 66 Ind. 52; Lackej 
 v. Hernby, 9 I ml. 536; Mumford v. 
 Thomas, 10 Ind. 167; Witt V. King, 56 
 Ind. 72. In Summerson v. II irks, [34 
 Pa. 566, 21 Atl. Rep. 875, it was held that 
 if parties on appeal proceed upon the 
 theory that the questions are saved by 
 
 1 1 in, 13 Ind. 3SS; Fowler v. Burget, objections in the trialcourt theywillbe 
 
 16 Ind. 341; Yoltz v. Newbert, 17 Ind. 
 187; Potter v. Owens, iS Ind. 383; Dea- 
 con v. Schwartz, iS Ind. 285; Harderle 
 r .City of LaFayette, 20 Ind.234; Hobbs 
 r.Cowden, 20 Ind. 310; Andre v. Fry- 
 1 , 70 Ind. 2S0; Makepeace v. Davis, 
 27 I ml. 352; State v. Blanch, 70 Ind. 204; 
 
 held to thai theory, and to have waived 
 the right to allege that objections were 
 not properly saved below 
 
 3 Giles v. Caines, 3 Caines (N. Y.) 
 107; Newbery v. Furnival, 56 N. Y . 
 638; Wolford v. Oakley, 1 Sheldon 
 (N. Y.), 261.
 
 WAIVE ' 
 
 narrow scope and limited application in procedure, either trial 
 or appellate, inasmuch as a party in court, or who ought to be 
 there, is bound to take notice of all that occurs in the cause, ex- 
 cept matters of a very extraordinary nature. He must, of 
 course, take notice of matters of law, and within such matters 
 are included rules of procedure and practice. He must use the 
 means of knowledge open to him, for if he is put upon in- 
 quiry he is chargeable with knowledge of the facts to which 
 such an inquiry reasonably and diligently pursued would lead. 
 " Having the means of knowledge is equivalent to knowledge." 
 The doctrine expressed in the maxim quoted is peculiarly ap- 
 plicable to matters of procedure, for if a party has means of 
 knowledge he must actively and diligently employ such means, 
 or he will be in no situation to defeat a waiver. While there 
 are very few instances in matters of procedure where a party 
 can plead ignorance to escape a waiver there are, nevertheless, 
 some where he may successfully do so. The presumption 
 must, in almost every instance, necessarily be that a party sum- 
 moned into court, or who comes there voluntarily, has notice 
 of all that occurs, and if he seeks to escape a waiver he must 
 overcome the presumption. This he can not do unless he 
 makes a strong and clear case, showing excusable ignorance 
 of the facts. If he has knowledge of the facts, or is charge- 
 able with such knowledge, then he is held to know the legal 
 consequences that flow from the facts. 1 
 
 § 677. Appearance — Effect of — It has long been established 
 law that a party who fully appears to the action or suit waives 
 all objections to the jurisdiction of the court over his person. 
 If a party desires to object to process he must enter a special 
 appearance for that purpose, for a general appearance waives 
 all objections to the writ or its service. It is not material how 
 or in what manner notice is issued or served if it fully accom- 
 plishes its purpose by bringing the party into court and afford- 
 
 1 The principle stated in the text ap- him is itself a warning that he must be 
 
 plies to estoppels, and there is stronger vigilant and diligent, and this he can 
 
 reason for applying it to matters of not be unless he informs himself as to 
 
 procedure than to ordinary cases, for the law. Dodge V. Pope, 93 Ind. 4S0; 
 
 the fact that a contest is waged against Krug v. Davis, toi Ind. 75, 76.
 
 630 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ing him an opportunity to answer the complaint or declaration, 
 and this it is held to do whenever there is a full appearance. 1 
 It is in general true that any act done in a case not accompa- 
 nied bv an express qualification or restriction limiting the ap- 
 pearance to what is called by some of the courts a "special 
 appearance" and by others "a qualified appearance," is re- 
 garded as a general appearance. Thus, the filing of a demur- 
 rer assigning any other ground than one assailing the jurisdic- 
 tion is such an appearance as waives purely preliminary 
 motions or objections.- Appearing to a motion and arguing 
 the merits is a general appearance. 3 If a party joins with ob- 
 jections to the jurisdiction, objections or defenses going to the 
 
 1 Clark v. Lilliebridge(Kan.), 26 Pac. 
 Rep. 4;,; /;/ re Bingham, 127 N'.Y.^G, 
 27 N. E. Rep. 1055; St. Louis, etc., Co. 
 : McBride, 141 U. S. 127; Mason, etc., 
 Drainage District v. Griffin, 134 111. 
 330; Hazard v. Wason, 152 Mass. 26S, 
 j; \. E. Rep. 465; Granville County, 
 etc., Board v. State Board, etc.. 106 N. 
 C. 81; Bishop v. Silver Lake, etc., Co., 
 62 N.H.455; Railroad Co. v. Morey, 47 
 Ohio, 207, 7 Law. Rep. Anno. 701, 24 N". 
 E. Rep. 209; Moore v. Gamgee L. R., 
 25 Q^B. 244; Dikeman ©.Struck, 76 Wis. 
 332. 45 N. W. Rep. 11S; City of Craw- 
 ville v. Hays, 42 Ind. 200; Albert- 
 son v. Williams, zt, Ind. 612; Piatt v. 
 Manning, 34 Fed.Rep.S17; Louisville, 
 etc.Co. v. Nicholson, 60 Ind. 158; Moul- 
 ton v. Baer, 78 Ga. 215,2 S. E. Rep. 471; 
 Colorado, etc., Co. v. Caldwell, 11 Col. 
 545, 19 Pac. Rep. 542; Reed v. Cates, 
 11 Col. 527, 19 Pac. Rep. 404. An en- 
 try of appearance in the Federal Court 
 is a waiver of the objection that the 
 party was not served in the district 
 where he resides. Foote v. Massachu- 
 setts, etc., Association, 39 Fed. Rep. 23; 
 Blackburn v. Selma, etc., Co., 2 Flip- 
 pin. 525; Harkness v. Hyde, 98 U..S 
 
 i Singleton v. O'Blenis, 125 Ind. 151, 
 
 25 X. E. Rep. 154; Knight v. Low, 15 
 Ind. 374; City of Crawfordsville v. 
 Hays, 42 Ind. 200; Slauter 7-. Hollo- 
 well, 90 Ind. 286; Gilbert v. Hall, 1 15 
 Ind 549; Ex parte Henderson, 84 Ala. 
 36, 4 So. Rep. 2S4; Ford v. Ford, no 
 Ind. S9; Sunier v. Miller, 105 Ind. 393; 
 Green v. Elliott, S6 Ind. 53; Schmied 
 v. Keenev, 72 Ind. 309; Neff v. Reed, 
 9S Ind. 341; St. Louis, etc., Co. v. Mc- 
 Bride, 141 U.S. 127; Donnellv t'.Wool- 
 sey, 59 IIun.6iS; Nashua Savings Bank 
 z'.Lovejov, 1 N. Dak.211,46 N.W. Rep. 
 411; Kegg v. Welden, 10 Ind. 550; 
 Lewis v. Brackenridge, 1 Blackf. 112; 
 Vermilya :■. Davis, 7 Blackf. 158; Dud- 
 ley V. Fisher, 7 Blackf. 553; Cleveland 
 v. Obenchain, 107 Ind. 591; Robinson 
 :•. Rippey, 1 n Ind. 1 12. 
 
 3 Cincinnati, etc., Co. v. Belle Cen- 
 tre (Ohio), 27 N. E. Rep. 464. See, 
 generally. White V. Morris, 107 N. C. 
 92; Hall v. Craig, 125 Ind. 523, 25 N. 
 E. Rep. 5}S; Fitzgerald, etc., Co. v. 
 Fitzgerald, [37 (J. S. 98; Lane v. Fox, 
 S Blackf. 58; Bush v. Bush, 46 Ind. 70; 
 Harvey :•• Donnellan, 36 Ind. 501; 
 Wiseman r. Risinger, 14 Ind. 461; 
 Dickerson v. Hays, 4 Blackf. 44; Col- 
 lege Corner, etc., Co. v. Moss, 77 Ind. 
 !39-
 
 WAIVER. 
 
 
 merits there is, as a general rule, full appearance. 1 Jf a party 
 appropriately and seasonably objects to the jurisdiction of his 
 person he is not. according to what seems to us the better opin- 
 ion, to be regarded as waiving the objection by answerinj 
 the merits after his objection is overruled and due exception 
 reserved. Having done all in his power at the proper time, 
 present his objection, subsequently contesting the case is in no 
 just sense a waiver. A party can not be held to relinquish a 
 right which he asserts as the law requires, nor is he bound to 
 constantly repeat his objections. It would be unjust to hold 
 that he must surrender his right to contest the case upon the 
 merits or yield a right he has done his best to preserve and as- 
 sert. 2 It is held to be within the discretion of the court to per- 
 
 1 Kaw Valley Life Association v. 
 Lemke, 40 Kan. 142, 19 Pac. Rep. 337. 
 See Walker v. Turner, 27 Neb. 103,42 
 N. W. Rep. 91S. 
 
 2 In discussing the general subject 
 the Supreme Court of the United States 
 by one of its ablest members, Mr. Jus- 
 tice Harlan, said : "But the inferior 
 State court having ruled that the right 
 of removal did not exist and that it had 
 jurisdiction to proceed, the company 
 was not bound to desert the ease anil 
 leave the opposite party to take judg- 
 ment by default. It was at liberty, its 
 right of removal being ignored by the 
 State court, to make defense in that 
 tribunal in every mode recognized by 
 the laws of the State, without forfeiting 
 or impairing in the slightest degree, its 
 right to a trial in the court to which 
 the action had been transferred, or 
 without affecting to any extent the au- 
 thority of the latter to proceed." 
 Steamship Co. v. Tugman, 106 l". S. 
 11S. The court cited as sustaining the 
 doctrine declared the cases of Railroad 
 Co. -•. Koontz, 104 U.S. 5; Railroad 
 Co. v. Mississippi, 102 V . S. 135; Kern 
 v. Huiderkoper, 103 V S. ) N s; Insur- 
 ance Co. ;•. Dunn, ig Wall. 214. In 
 Jones v. Jones, 10S N. Y. 415, 
 
 said: "The principle has been applied 
 in a great variety of cases and there is 
 substantial uniformity in the decisions 
 to the effect that a party not served 
 with process so as to give the court 
 juri--diction of his person, does not 
 waive the objection nor confer jurisdic- 
 tion by answering over and going to 
 trial on the merits after he has ineffectu- 
 ally objected to jurisdiction and his ob- 
 jection has been overruled." This 
 doctrine is supported by the weight ol 
 authority. Walling v. Beers, 120 Mass. 
 548, 550; Avery v. Slack. 17 Wend. 85; 
 Harkness v. Hyde, 98 L'. S.470; Dewey 
 V. Greene, 4 Denio, 93; Warren v. 
 Crane, 50 Mich. 300, 15 N. W.Rep.465. 
 In the case las' cited it was said: 
 " Waiver is a voluntary act and implies 
 an election by a party to dispense with 
 something ot" value or to forego some 
 advantage which he might at his option 
 have demanded or insisted upon." 
 This principle is. as we believe, the 
 controlling one, and leads to the con- 
 clusion asserted in the text, inasmuch 
 .is a party who opposes, actively and 
 properly, jurisdiction over his person 
 can not be held to voluntarily submit 
 by answering over to the merits. He acts 
 coercion and not voluntarily.
 
 t]32 ERROR IN JUDICIAL PROCEEDINGS. 
 
 mil a party who has voluntarily appeared to withdraw his ap- 
 pearance in a cause where there has been no service of process, 1 
 but the court is not bound to allow a withdrawal as a matter of 
 right. 2 As indicated in the first note to the preceding sentence 
 we think that where the court simply permits the withdrawal 
 1 of appearance and subsequently renders judgment, the defend- 
 ant can not overturn the judgment without bringing into the 
 record facts showing that there was not due notice, 3 and our 
 reason for this conclusion is that after appearance the presump- 
 tion is that jurdisdiction existed. To infer that there was no 
 jurisdiction where there is an appearance and judgment in a 
 case where the record is silent would be to violate the rule that 
 all reasonable presumptions will be indulged in favor of the 
 action of the trial court. General appearance alter a discon- 
 tinuance operates as a waiver, 4 and such an appearance waives 
 a dismissal. 5 
 
 § 678. Special or Qualified Appearance — There is some diversity 
 of opinion upon the question of the right of a party to so limit 
 his appearance as to prevent a surrender of objections to juris- 
 diction over his person. The doctrine supported by principle 
 and the overwhelming weight of authority is that a special or 
 qualified appearance may be entered in such a mode as to avoid 
 
 1 McArthur v. Lefler, no Ind. 526; no jurisdiction. As the case of McAr- 
 
 Young v. Dickey, 63 Ind. 31. The de- thur v. Lefler, supra, rests entirely on 
 
 cision in the case last cited seems to us Young v. Dickey, supra, what is said 
 
 to he wrong. If there is an appear- of the latter cases applies to the former, 
 
 ance and nothing more is shown, the 2 New Albany, etc., Co. v. Combs, 13. 
 
 presumption is that jurisdiction existed Ind. 490. 
 
 and this, of course, implies that there s The code declares that the tran- 
 
 was service of process. The decision script shall not include " a summons 
 
 is opposed to an elementary rule long for the defendant in cases where all 
 
 settled. The case of Coffin v. Evans- persons named in it have appeared to 
 
 ville, etc., Co., 7 Ind. 413, is certainly the action." R. S. 1SS1, § 650. 
 
 against the doctrine of the case under * Breese v. Allen, 12 Ind. 426; Mc- 
 
 mention. Carver :•. Williams, 10 Ind. Dougle v. Gates, 21 Ind. 65; Clarke. 
 
 267, does not support that case, nor State, 4 Ind. 26S; Humble v. Bland, 6 
 
 does Smith v. Foster, 59 Ind. 595. In Term R. 255. 
 
 ■ cases it was held that the court ° Mahon v. Mahon, 19 Ind. 324; Bos- 
 
 properly rendered judgmenl and this ley v. Farquar, 2 Blackf. 61; Wilson v. 
 
 excludes the conclusion that there was Coles, 2 Blackf. 402.
 
 WAIVER. 
 
 633 
 
 a surrender of the right to denv jurisdiction. 1 It is necessary to 
 carefully guard and limit appearance to the single point of 
 specially appearing for the purpose of assailing the jurisdiction 
 of the court. 2 It has been declared by the Supreme Court of the 
 United States that the court may, in its discretion, permit ageneral 
 appearance to be withdrawn and a special appearance to be en- 
 tered, but it is indicated that the party to whom the provision is 
 granted can not move to dismiss the appeal and that there is a dif- 
 ference between the procedure in the appellate tribunal and that 
 in the court of original jurisdiction. 5 In a case decided by one of 
 the Federal circuit courts it was held that a court of original 
 jurisdiction might permit the amendment of an appearance by 
 limiting a general appearance to a special one. 4 It seems quite 
 
 1 Kinkade v. Myers, 17 Ore. 470, 21 
 Pac. Rep. 557; Chubbuck v. Cleveland, 
 37 Minn. 466, S. C. 5 Am. St. Rep. S64; 
 Chesapeake, etc., Co."'. Heath, S7 Ky.651, 
 9 S. W. Rep. S32; Paxton v. Daniell, 1 
 Wash. 16, 23 Pac. Rep. 441; Campbell 
 V. Swasey, 12 Ind. 70; Daily :■. Schra- 
 der, 34 Ind. 260; Carson v. Steamboat 
 Talma, 3 Ind. 194; Collins v. Nichols, 
 7 Ind. 447; Cohen v. Trowbridge, 6 
 Kan. 385; Simcock v. Bank, 14 Kan. 
 1529; Branner -'. Chapman, 11 Kan. 118; 
 Huff v. Shepard, 58 Mo. 242; Anderson 
 7'. Brown, 9 Mo. 646; Harkness v. 
 Hyde, 98 U.S. 476; Mulhern v. Press, 
 etc., Co., 53 N.J. Law. 150, 20 Atl. Rep. 
 760; Brown v. Rice, 30 Neb. 236, 46 X. 
 W. Rep. 4S9. In Brown v. Webber, 6 
 Cush. 560, it was said by Shaw C.J.: 
 " If the defendant would object to the 
 irregularity or want of due service in 
 this respect, he may do so by plea in 
 abatement where it is necessary to 
 plead any matter of fact on which his 
 objection is founded, or by motion to 
 dismiss where the objection is appar- 
 ent on the face of the proceedings or 
 the return of the officer; and in either 
 case before pleading generally to the 
 merits. And to enable him to do this 
 he may appear specially for the pur- 
 
 pose of stating such objection without 
 thereby waiving it. But if he will enter 
 a general appearance, or plead to the 
 merits, or lie by after he is aware of the 
 matter of the objection to the juris- 
 diction, he thereby submits himself to 
 the jurisdiction of the court." 
 
 2 Bucklin v. Strickler (Neb.), 49 N. 
 W. Rep. 371. See, generally, Sealy :•. 
 California, etc., Co., 19 Ore. 94, 24 Pac. 
 Rep. 197. 
 
 3 United States v. Yates, 6 How. 
 606, 607. It was said by the court in 
 the case cited that: " The serious ob- 
 jections which often exist to permitting 
 an attorney to strike out his appearance 
 for a defendant in a court exercising 
 original jurisdiction do not apply to an 
 appellate court." See, generally, Gra- 
 ham v. Spencer, 14 Fed. Rep. 603, 606; 
 Carroll v. Dorsey, 20 How. (U. S.), 204, 
 207; Creighton v. Kerr, 20 Wall. 12; 
 1 [abich v. Folger, 20 Wall, 1, 7; Rl 
 Island v. Massachusetts, 13 Pet. 23. 
 
 4 Hohorsl v. Hamburg- American 
 Packet Co., 38 Fed. Rep. 273. In the 
 case cited the court --aid: "That the 
 court has power to allow a general no- 
 tice of appearance to lie amended - 
 
 to make it a special appearance seems 
 to he well settled."
 
 634 ERROR IN JUDICIAL PROCEEDINGS. 
 
 clear that where there is fraud or mistake and no fault on the 
 part of a party who enters a general appearance he may 
 be relieved upon timely and sufficient application, 1 but we sup- 
 pose it equally clear that a party can not insist upon a with- 
 drawal of his appearance as of right and without cause shown. 
 
 § 679. Waiver of objections to the Remedy — A party by silence 
 and inaction may waive all questions as to the character of the 
 remedy adopted. A striking illustration of the doctrine that 
 objections to the remedy are waived by a failure to object is 
 supplied by the cases which hold that if the objection that there 
 is an adequate remedy at law is not properly made in a court of 
 equity it will be waived. 2 If waived it can not, of course, be 
 regained. 3 The question of remedy partakes in no slight de- 
 gree of the elements of jurisdiction of the subject, but objec- 
 tions to the remedy may, nevertheless, be waived. From this 
 it seems that there is really a third class of jurisdiction and that 
 the division of jurisdiction into two classes is not exhaustive 
 What the third class shall be denominated or what its nature 
 and extent, it is foreign to our present purpose to inquire. 
 
 § 680. Waiving objections to Pleadings — Where objections to 
 pleadings are etfective only when made in a designated mode 
 they are waived unless made in that mode. Objections not 
 made substantially as the law requires are ineffective. Thus, 
 the failure to move to make a pleading more definite or certain 
 waives an objection on the ground of uncertainty, unless the 
 pleading is so wholly destitute of certainty as to be without 
 effect- 1 So, a motion to separate a pleading into paragraphs 
 
 1 Malin v. Kinney, i Cain. Rep. 117; * Mills v. Rice, 3 Neb. 76; Trustees, 
 Becker--. Lamont, 13 How. Pr. Rep. etc., v. Odlin. S Ohio St. 293, 294; Myer 
 23; I iirnival v. Bogle, 4 Russ. R. 142; v. Moon. 45 Kan. 5S0, 26 Pac. Rep. 40; 
 Hunt v. Brennan, 1 Hun. 213; Sullivan Woodruff v. Jabine (Ark.), 15 S. W. 
 v. Frazee, 4 Rob. (N.Y.), 616. Rep. S30; Copeland v. State, 126 Ind. 
 
 2 Clark v. Flint. 22 Pick. 231; First 51, 25 N. E. Rep. S66; Cottrell v. Cot- 
 Congregational Society v. Trustees, 23 trell, 126 Ind. 1S1. 25 N. E. Rep. 905; 
 Pick. 148; Russell v. Loring, 3 Allen, Plunkctt ;•. Minneapolis, etc., Co., 79 
 121; Tarbell v. Bowman, 103 Mass. 341 ; Wis. 222,48 N.W. Rep. 519. See, yen- 
 Jones :■. Keen. 115 Mass. 170. orally . as to motions addressed to plead- 
 
 3 Matter of Cooper. 93 N. Y. 507. ings, Smith v. Summerrield, to8 N. C
 
 WAIVER. 
 
 63o 
 
 must be opportunely made, or waiver will be enforced.' Un- 
 der our decisions a single paragraph of answer or complaint 
 should not be double, but if so the remedy is bv motion. 2 If it 
 states only one good cause of action or defense it will not be 
 bad for duplicity, although there may be allegations attempting 
 to set forth another defense or cause of action. In such a i 
 the allegations not essential to the well alleged cause of action 
 or defense may be regarded as surplusage. 3 But one office 
 can, as a general rule, be performed by a single paragraph of 
 a pleading, thus, a paragraph of an answer can not be both a 
 general denial and a plea in confession and avoidance, 4 and 
 the result is that the attempt to so blend the defenses waives 
 one of them. Objection that a pleading is not verified must be 
 made by motion or the objection will not be available on ap- 
 peal. 5 The rule we are here concerned with is strikingly illus- 
 
 2S4, 12 S. E. Rep. 997; Citizens, etc., v. White, 53 Ind. 1; Porter v. Brack - 
 
 Co. f. Shenango Natural Gas Co., 138 enridge, 2 Blackf. 3S5; Hay v. State. ^S 
 
 Pa. St. 22, 20 Atl. Rep. 947; Pavey v. Ind. 337. 
 
 Pavey, 30 Ohio St. 600; Plummer v. * Campbell v. Routt, 42 Ind. 410; In- 
 
 Mold, 22 Minn. 15; Turner v. First diana, etc.. Board v. Gray, ^4 Ind. 91; 
 
 National Bank, 26 Iowa, 562; Hewitt Kimble v. Christie, 55 Ind. 140: Nvse- 
 
 v. Brown, 21 Minn. 163. wander v. Lowraan, 124 Ind. 584; Petti 
 
 1 McKinney v. McKinney, 8 Ohio St. v. Trustees, etc., 95 Ind. 27S; State v. 
 
 423; McCarthy v. Garraghty, 10 Ohio Foulkes, 94 Ind. 493, 49S; Richardson 
 
 St. 43S; Truitt v. Baird, 12 Kan. 420; v. Snider, 72 Ind. 425; Neideferv. Chas- 
 
 Township of Hartford v. Bennett, 10 tain, 71 Ind. 363. S. C. 36 Am. Rep. 
 
 Ohio St. 441; Sentinel Co. v. Thorn- 19S; Woollen f. Whitacre, 73 Ind. 198; 
 
 son, 38 Wis. 489; Bass v. Comstock, 3S Cronk r. Cole, 10 Ind. 481;. 
 
 N. Y. 21; Adams v. Secor, 6 Kan. 542, 5 State v. Ruhlman, in Ind. 17: To- 
 
 547. As to when a ruling on a motion ledo, etc., Works v. Work. 70 Ind. 
 
 to separate constitutes available error, 
 see Goldberg v. I'tlev. 60 X. Y. 427; 
 Pierce 7'. Bicknell, n Kan. 262. 
 
 J Hendry v. Hendry. 7,2 Ind. 349; 
 State v. Newlin. 69 Ind. 108; Barnes v. 
 Stevens, (12 Ind. 22<<; Denman v. Mc- 
 Makin,37 Ind. 241: Jones v. Hathaway, 
 77 Ind. 14; Rogers V. Smith, 17 Ind. 
 323; Evans v. White, 53 Ind. 1; Rielay 
 v. Whitcher, iS Ind. 45S; Spencer v. 
 Chrisman, 15 [nd. 215; Johnson w.Craw- 
 fordsville, etc., 11 Ind. 280. 
 
 3 Booher :\ Goldsborough, 44 Ind. 
 490; Thompson v. Oskamp, 19 Ind. 599; 
 Swinney :•. Nave, 22 Ind. 17S; Evans 
 
 253; Indianapolis, etc., Co. 7'. Summers, 
 28 Ind. 521; Bradley v. Bank. 20 Ind. 
 52^ Beeson 7'. Howard. 44 Ind. 413; 
 Vail V. Rinehart. 105 Ind. 6; Payne :■. 
 Flournov, 29 Ark. 500; Moses v. Ris- 
 don, 46 Iowa, 251; Schwarz v. Oppold, 
 74 N. Y. 307; Hughes v. Feeter, t8 la. 
 142; Pudney 7'. Burkhart, 62 Ind 
 Butler v. Church, etc., 14 Bush. ;(•>; 
 State 7'. Ruth, 21 Kan. 583. See. gen- 
 erally, Fritz 7'. Barnes, 6 Neb. 
 Warner v. Warner. 11 Kan. 121. As 
 to right to amend by verifying, see I 
 7\ United States Slate Co.. n> How. Pr. 
 129; Bragg 7'. Bickford, 4 How. Pr. 21.
 
 (336 ERROR IN JUDICIAL PROCEEDINGS. 
 
 trated in the familiar doctrine long held with respect to matters 
 in abatement, for that doctrine, as is well known, is that such 
 matters must be promptly and properly pleaded or they will be 
 deemed waived. It can hardly be said that the rule is so strict 
 regarding other matters as it is respecting matters in abate- 
 ment, but it is quite safe to say that in all cases objections must 
 be made in due form and proper order or no available error 
 can be alleged on the decisions made upon them. Thus, if a 
 party after answering should move to separate into paragraphs, 
 or to make more certain, his motion would come too late, and 
 no available error could be assigned upon the ruling denying 
 it. The court may, in its discretion, allow a party to withdraw 
 a pleading in order to make the motion which ought to have 
 preceded the pleading, but it is not bound to do so ; and hence 
 its refusal can not be successfully assigned as error. 
 
 § 681. Failnre to Demur— The rule that pleadings are aided 
 by a verdict rests in part, at least, upon the doctrine of waiver. 
 The party who fails to interpose an objection available on de- 
 murrer voluntarily relinquishes a right which he can not re- 
 gain. 1 The availability of objections in a case where a demur- 
 rer is interposed in due time and in an appropriate form as- 
 sumes a very different phase from the one it wears where the 
 objections are made by a motion in arrest or by a specification 
 in the assignment of errors. 2 The cases to which we have re- 
 
 1 As illustrating this general doctrine v. Lane, 40 Kan. 491, 20 Pac. Rep. 258; 
 
 may be cited St. Louis, etc., Co. v. Palmer v. Arthur, 131 U. S. 60; John- 
 
 Triplett (Ark.), 11 Law. Rep. Anno, son v. Ahrens, 117 Ind. 600, 19 N. E. 
 
 --\. Shreffler v. Nadelhoffer, 133 111. Rep. 335. 
 
 536, j; N. E. Rep. 630; Johnson v. 2 McFadin v. David, 7S Ind. 445; 
 
 Miller (Iowa), 48 N. W. Rep. 10S1; Johnson v. Breedlove, 72 Ind. 36S; 
 
 Louisville, etc., Co. v. Harrington. 92 New v. Walker, 108 Ind. 365; Dowling 
 
 Ind. 1.57; Yeoman v. Davis, 86 Ind. v. Crapo, 65 Ind. 209; McMillen v. 
 
 189; |<-nkins r\ Rice, 84 Ind. 342; Du- Terrell, 23 Ind. [63; Sharpe v. Clifford, 
 
 Souchel v. Dutcher, 1 13 Ind. 249: Fel- 44 Ind. 346; Murphy v. Lambert, 59 
 
 ger v. Et/ell. 75 Ind. 417; Quirk v. Ind. 477; Jones v. Ahrens, 116 Ind. 490; 
 
 Clark. 7 Mont. 31, 14 l'ac. Rep. 669; Sims v. Dame, 113 Ind. 127; Stewart:'. 
 
 Cribb T-.W'aveross, etc., Co., 82 Ga. 597, Slate. 1 [3 Ind. 505; Matson v. Swanson, 
 
 9 S. I'.. Rep. 426; Trebby v. Simmons, 131 111. 255, 23 N. E. Rep. 595; Geveke 
 
 [inn. 508, 38 N. W. Rep. 693. See, v. Grand Rapids, etc., Co., 57 Mich. 
 
 generally, Peden v. Mail, 118 End. 1556, 589; Lenahen v. Desmond, 150 Mass. 
 
 20 \ E. Rep. 493; Herron : . y'ole. 2^2.22 M. E. Rep. 903; Smith v. Hel- 
 
 25 Neb. 692, 41 N. W. Rep. 765; Meyer ler, 119 Ind. 212. 21 X. E. Rep. 657.
 
 WAIVER. 
 
 637 
 
 ferred in the note, and to which many more might easily be 
 added, are sufficient to show (and that is all that our immediate 
 purpose requires) that the failure to act in due time and in the 
 appropriate mode is often construed to be a waiver. 
 
 § 682. Failure to Demand a Decision upon Demurrer — A party 
 has a right to have an issue of law disposed of before going to 
 trial upon the facts, but if he goes to trial without objection he 
 waives a decision. It is upon this general principle that it is 
 held that if a party goes to trial without an issue he will be 
 deemed to have relinquished all objections because of the fail- 
 ure to join issue. 1 Where a party whose demurrer is pending 
 
 1 Ante, §§ 352, 470, 482. Farmers, 
 etc., Co. v. Canada, etc., Co., 127 Ind. 
 250; Citizens' Bank v. Bolen, 121 Ind. 
 301; Purple v. Harrington, 119 Ind. 164; 
 June v. Payne, 107 Ind. 307, 313; Bu- 
 chanan v. Berkshire, etc., Co., 96 Ind. 
 510; Locke v. Merchants' Nat. Bank, 66 
 Ind. 353; Casad v. 1 1 old ridge, 50 Ind. 
 529; Taylor v. Short, 40 Ind. 506; Train 
 v. Gridley, 36 Ind. J41 ; Ringle v. Bick- 
 nell, 32 Ind. 369; Bender v. State, 26 
 Ind. 285. Our rule is that an issue will 
 be presumed to have been made and 
 judgment can not be entered as by con- 
 fession. In June :•. Payson, supra, it 
 was said: " Where without objection a 
 party alleging affirmative matter in his 
 pleading goes to trial without requiring 
 an issue to be formed upon such plead- 
 ing, he can not afterwards ask judgment 
 in his favor as by confession." The cases 
 of Bass v. Smith, 61 Ind. 72; Lewis 
 v. Bortsfield, 75 Ind. 390; Felger v. 
 Etzell, 75 Ind. 417, and Stribling v. 
 Brougher, 79 Ind. 32S, were cited. In 
 Colorado a different doctrine is held. 
 That doctrine was declared in Daniel- 
 son v. Gude, 11 Col. 87, 94. in this lan- 
 guage: '"The defendants, by entering 
 upon and proceeding with such trial 
 upon the merits without demanding a 
 ruling upon the demurrer, thereby 
 waived the same. Anderson v. Sloan, 
 1 Col. 4S4. The demurrer being waived 
 
 and no answer to the complaint being 
 interposed, every material allegation of 
 the complaint must, for the purposes 
 of the action, be taken as true." It 
 seems to us that the doctrine of the 
 learned court in the case from which 
 we have quoted is not the correct one. 
 The submission of a case to the triers 
 of the facts implies that there is some 
 issue of fact to be tried, and this impli- 
 cation can not exist if the facts are con- 
 fessed. The natural and reasonable in- 
 ference is that parties waive the forma- 
 tion of regular issues and submit the 
 case for trial without formal plead- 
 ings. There is in all cases where both 
 parties voluntarily go to trial upon 
 the facts a waiver by each party re- 
 spectively. The one waives a right to 
 demand a formal pleading, ami the 
 other waives a right to object because 
 there are no pleadings making an is>ue 
 of fact in due and regular form. The 
 reasonable presumption is that the 
 parties elect to treat all affirmative alle- 
 gations as controverted. Davis f.Pool, 
 67 Ind. 425; Cogswell v. State, 65 Ind. 
 1; Carriger t>. Sicks, 73 Ind. 76; Dodds 
 V. Vannov, 61 Ind. S9; Brand v. Whe- 
 lan, iS 111. App. 1S6; City ot Chicago v. 
 Wood, 24 111. App. 40; In re Doyle, 
 73 Cal. 564; Quimby v. Boyd, 8 Col. 
 '94. 34--
 
 638 ERROR IX JUDICIAL PROCEEDINGS. 
 
 and undecided answers he waives the demurrer, inasmuch as 
 In answering he informs the court that he relinquishes aright 
 to a decision. 1 
 
 § 683. Waiver of Objections to Decisions on Demurrer — If a 
 
 part) answers a complaint after a ruling on demurrer declaring 
 it to be bad, he waives the demurrer. 2 Amending a pleading 
 after a ruling on demurrer is a waiver of the right to make the 
 ruling available on appeal. 3 It is not necessary that there 
 should be a direct and formal amendment in order to call into 
 force the rule that an amendment waives objections and excep- 
 tions to a decision upon demurrer, for if another pleading is 
 found in the record substantially the same as that held bad on 
 demurrer it will be held that objections and exceptions to the 
 ruling adjudging it bad are waived, 1 but where an additional 
 or new pleading is filed alleging matter essentially different 
 from that contained in the pleading held bad, the rule does not 
 apply. 5 
 
 ^ 684. Instances of the Waiver of Preliminary Objections— If a 
 party appears and goes to trial upon the merits without object- 
 ing, in a case where an affidavit is required, he waives, as a 
 general rule, the right to insist that no affidavit was filed. 6 
 
 1 De La Hunt v. Holderbaugh, 58 36 Ind. 470; Hooker v. Brandon, 66 
 Ind. 285; Washburn v. Roberts, 72 Ind. Wis.49S; Polleys v. Swope, 4 Ind. 217; 
 21.3; Beckner v. Riverside, etc.. Co., 65 St. John v. Hardwick, 17 Ind. 180; Jay 
 Ind. 468. See, generally, Hiatt v. Renk, W.Indianapolis, etc., Co., 17 Ind. 262; 
 64 Ind. 590; Locke v. Merchants, etc., Ham v. Carroll, 17 Ind. 442; Caldwell 
 Hank, 66 Ind. 353; Waugh v. Waugh, v. Bank of Salem, 20 Ind. 294; Aiken 
 47 Ind. 5S0. v. Bruen, 21 Ind. 137; Patrick v. Jones, 
 
 2 Grose v. Dickerson, 53 Ind. 460; 21 Ind 249; Miles v. Buchanan, 36 Ind. 
 Belle v. Hungate, 13 Ind. 3S2. Where 490. 
 
 a demurrer is not insisted upon it is re- 4 Hargrove v. John, 120 Ind. 2S5; 
 
 garded as waived. Dingle v. Swain, 15 Hunter v. Pfeifer, 108 Ind. 197; Trisler 
 
 Col. i20. 24 Pac. Rep. 876; Bonner v. v. Trisler, 54 Ind. 172; Jouchert v. 
 
 Glenn, 79 Texas, 531, 15 S. W. Rep. Johnson. 10S Ind. 436. 
 
 1572; Elvton Land Co. v. Morgan, SS 5 Washburn v. Roberts, 72 Ind. 213; 
 
 Ala. 434'. 7 So. Rep. 249. Williams v. West, 2 Ohio St. 82, 90; 
 
 1 Mitchel v. McCabe, 10 Ohio, 405; Ohio v. Cowles, 5 Ohio St. S7; Hol- 
 
 Lnited States v. Boyd, 5 How. (U. S.) brook v. Connelly, 6 Ohio St. 199; 
 
 29, 51; Sheppard v. Shelton, 34 Ala. Maxwell v. Campbell, S Ohio St. 265. 
 
 652; Warm v. McGoon, 2 Scam. 74; 6 Richmond V. Tallmage, 16 Johns. 
 
 fohnson v. Conklin, 119 Ind. 109, 21 N. 307; Taylor v. Adams, 58 Mich. 1S7; 
 
 E. Rep. 462; Earp v. Commissioners, Baker v. Dubois, 32 Mich. 92; Brauns-
 
 WAIVER. 
 
 U3 ( J 
 
 Where a party has full opportunity to file a claim against a 
 fund in the hands of the court he waives his right if he delays 
 to file the claim until after the final judgment has been entered. 1 
 An objection that an action or suit is prematurely brought must 
 be appropriately and opportunely interposed or it will be 
 waived. 2 The objection that an appeal was prematurely taken 
 may be waived in some cases, 3 but not where the question of 
 the time is essentially jurisdictional. 4 Objections to appeal or 
 supersedeas bonds are waived unless seasonably interposed. 5 
 A party who relies upon a specific ground of objection in the 
 trial court ordinarily waives all others/' A motion for non-suit 
 is waived by going on with the trial and offering evidence. 7 
 Where the court orders that a case shall stand for trial by a 
 struck jury and the party consents to the order and participates 
 without objection in the selection of the jury under the order 
 he is held to waive all irregularities in selecting the jury. s It 
 has been held that a party who appears and cross-examines a 
 witness without objecting waives a right to challenge the order 
 of the court directing the examination. 9 Where a defendant is 
 ordered to answer and he does answer without objection he 
 can not afterwards question the validity of the order, although 
 a timely objection might have been effective. 10 
 
 dorf v. Felner, 69 Wis. 334, 34 N. W. 
 Rep. i2i. See, generally, Johnson v. 
 [nghram, 1 Grant's Case (Pa.), 152; 
 Vandall v. Vandall, 13 Iowa, 247; 
 Grows v. Maine, etc., Co., 69 Me. 412; 
 Wilson v. Roots, 1 19 111. 379. 
 
 1 Glade v. Schmidt, 15 111. App. 51. 
 
 2 New Home Life Association v. 
 Hagler, 23 111. App. 457; Moore v. 
 Sargent, 112 Ind. 4S4. 
 
 3 D'lvernois v. Leavitt, S Abb. Pr. 59; 
 Griffin v. Cranston, 5 Bosw. 65S. 
 
 4 James v. Dexter, 112 111. 489, 492 
 
 5 Stevenson v. Steinberg, 32 Cal. 373; 
 Gopsill v. Decker, 4 Hun. 625. 
 
 6 Vantilburgh v. Shann, 4 Zabr. (N. 
 J.) 740; Allen v. Mason, 17 111. App. 
 318. 
 
 7 Brown v. Southern, etc., Co. (I' tab), 
 26 Pac. Rep. 579; Mackey v. Balti- 
 
 more, etc., Co., iS Wash. Law Rep. 
 767. See, generally, Bitzer v. Wagar, 
 83 Mich. 223, 47 N. W. Rep. 210. Con- 
 senting to a trial after unsuccessfully 
 objecting may sometimes operate as a 
 waiver. Smith v. Burlingham, 44 Kan. 
 4S7, 24 Pac. Rep. 947; Munday v. Coll- 
 ier, 52 Ark. 126, 12 S.W. Rep. 240. See, 
 generally, New York, etc., Co. v. Fifth 
 National Bank, 135 U. S. 13- ; Marsh 
 v. Wade, 3 Wash.Ty.477, 17 Pac. Rep. 
 886; Corbett v. City of Troy, 53 Hun. 
 22S. 
 
 8 Bennett v. Syndicate Insurance Co., 
 43 Minn. 45, 44 N. W. Rep. 794. 
 
 9 King v. Barnes, 113 N. Y. 476. 31 
 N. E. Rep. 1S2. See Young v. Omo- 
 hundro, 6g Md. 4:4, 16 Atl. Rep. 120. 
 
 10 Barber v. Briscoe. 8 Mont. 214, 19 
 Pac. Rep. 5S9. See, upon the general
 
 640 
 
 ERROR IN JUDICIAL PROCEEDINGS 
 
 Demurrer to the Evidence— Waiver of Rijrht to Jury— It 
 
 is settled by our decisions that a party, other than the one hav- 
 ing the burden, may question the sufficiency of the evidence 
 by a demurrer, although the statute does not make provision 
 for such a proceeding. 1 If there is a joinder in demurrer there 
 is, of course, a waiver of a right to have the main issue tried by 
 a jury, inasmuch as the joinder in demurrer refers the case upon 
 the main issue, that is, as to the right to recover, to the court 
 for decision, thus taking it from the jury. But the joinder in 
 demurrer does not of its own vigor necessarily take the ques- 
 
 subject, Blackburn v. Blackburn (Ky.), 
 ii S. W. Rep. 712; Marx v. Crosian 
 17 Ore. 393, 21 Pac. Rep. 310. It is held 
 in accordance with the general doctrine 
 that parties must adhere on appeal to 
 the theories assumed in the trial court, 
 that where parties act upon pleadings 
 and by their action give the pleadings 
 a definite construction, they must abide 
 bv that construction on appeal. Clark v. 
 City of Austin, 38 Minn. 487, 38 N. W. 
 Rep. 615; Hughes v. Wheeler, 76 Cal. 
 230, iS Pac. Rep. 3S6. See "Holding 
 Parties to Trial Court Theories." Ante, 
 Chapter XXIV. 
 
 1 Lindley v. Kelley, 42 Ind. 294, and 
 
 cases cited; Lyons v. Terre Haute, etc., 
 
 Co., 101 Ind. 419; Lake Shore, etc., 
 
 Co. v. Foster, 104 Ind. 293. As to what 
 
 a demurrer to the evidence admits, 
 
 Willcuts -'. Northwestern, etc., Co., 
 
 81 Ind. 300, and authorities cited; 
 
 Palmer v. Pittsburgh, etc., Co., 112 1ml. 
 
 250; Ruff v. Ruff, 85 Ind.431; Ruddell 
 
 v. Tyner, 87 Ind. 529; Talkington v. 
 
 Parrish, 89 Ind. 202; Kincaid v. Nicely, 
 
 90 Ind. 403; Ilagenbuck -'. McClaskcy, 
 
 Si Ind. 577; Nordyke, etc., Co. v. Van 
 
 Sant, 99 Ind. iSS; Trimble v. Pollock, 
 
 77 Ind. 570; Wrigb.1 V. Julian, 97 Ind. 
 
 109; Indianapolis, etc., Co. v. McLin, 
 
 ud. 1.35; Kansas, etc., Co. v. Couse, 
 
 17 Kan. 571; Wilson :■. Board, 63 Mo. 
 
 137; Smith v. Hutchinson, 83 Mo. 6S3, 
 
 Smith v. Hannibal, etc., Co., 37 
 
 Mo. 287. A party who has the burden 
 can not successfully demur to the evi- 
 dence. Fritz v. Clark, 80 Ind. 591; 
 Standley v. Northwestern, etc., Co.. 95 
 Ind. 2154; Lyons v. Terre Haute, etc., 
 Co., 101 Ind. 419. Upon a demurrer to 
 the evidence the evidence of the de- 
 murring party can not be considered. 
 Fritz v. Clark,. ? upra, overruling Thom- 
 as V. Ruddell, 66 Ind. 326; Baker v. 
 Baker, 69 Ind. 399. See, also, Ruff v. 
 Ruff, 85 Ind. 431; Stockwell v. State, 
 101 Ind. 1; Palmer v. Pittsburgh, etc., 
 Co., 112 Ind. 250; Adams v. Slate. S7 
 Ind. 573; Bethell v. Bethell, 92 Ind. 318; 
 Reynolds v. Baldwin, 93 Ind. 57. Prac- 
 tice in cases of demurrer to the evi- 
 dence. Indianapolis, etc., Co. v. Mc- 
 Linn. supra; Plant v. Edwards, 85 Ind. 
 588; Griggs v. Seeley, S Ind. 264; An- 
 drews v. Hammond, SBlackf. 540; Cole 
 v. Driskell, 1 Blackf. 16; Shields v. Ar- 
 nold, 1 Blackf. 109; Doe v. Rue, 4 
 Blackf. 263; Pawling v. United States, 
 4 Cranch.219; Columbian Ins. Co. v. 
 Catlett. u Wheat, 3S3; Campbell v. 
 New England Ins. Co., 22 Pick. 135; 
 Bulkeley v. Butler, 2 B. & C. 434. The 
 mode of saving a question upon a rul- 
 ing on a demurrer to the evidence is to 
 object to the ruling and to except to 
 the overruling of the objection. Lind- 
 ley v. Kelley, 42 Ind. 294; Strough v. 
 Gear, (.8 Ind. 100.
 
 WAIVER. 
 
 641 
 
 tion of the assessment of damages from the jury ; on the con- 
 trary, the parties have a right to have the jury make the assess- 
 ment, if thev properly insist upon it. If, however, an assess- 
 ment by the jury is not asked, or no objection is made to the 
 assessment by the court, there is an effective waiver. 1 
 
 § 686. Introducing Evidence after Demurring — Effect of — If a 
 
 party after a decision upon the demurrer to the evidence pro- 
 ceeds with the case without objection, b}' offering evidence he 
 waives objections to the decision of the court overruling his 
 demurrer. 2 In the case last instanced there was, in reality, a 
 waiver bv both parties, for it seems quite clear that if the 
 plaintiff had appropriately objected to the admission of evidence 
 after the decision on demurrer, the court could not rightfully 
 have allowed the defendant to offer evidence to contradict what 
 he had deliberately admitted by his demurrer. It is probably 
 true that for cause shown the court might permit the defendant 
 to abandon the position he deliberately chose to occupy in such 
 a case, 3 but, having made a deliberate election, he could not at 
 
 1 In Strough v. Gear, 4S Ind. 100, 105, 
 it was said: "In the present case the 
 jury was discharged upon the filing of 
 the demurrer and before a decision 
 thereon, and the damages were assessed 
 by the court after the demurrer was 
 sustained, without objection on the part 
 of -the appellants. Thev might have 
 demanded a jury, but having failed to 
 do so, should be regarded as having 
 waived a jury." 
 
 2 The Supreme Court of Illinois in the 
 case of Joliet, etc., Co. v. Shields, 134 111. 
 209, 26N.E. Rep. ioS6,said: "Inasmuch 
 as the demurrer admits all the facts 
 stated in it to be true, and also admits 
 all the inferences which can be drawn 
 from the facts, and merely claims that 
 the testimony is not sufficient in law to 
 enable the plaintiff" to maintain his ac- 
 tion, the defendant necessarily with- 
 draws his admissions when he neglects 
 to stand by his demurrer, after it is 
 overruled, and proceeds to introduce 
 
 41 
 
 witnesses to contradict the very evi- 
 dence which he has just admitted to be 
 true. The action of the court in ruling 
 upon the demurrer to the evidence is 
 based on the defendant's admission that 
 the facts established by the evidence are 
 true. When the defendant no longer 
 admits such facts to be true, but tries 
 to prove that they are false, he ought 
 to be held to have waived any error 
 based upon the admissions thus with- 
 drawn. By his demurrer he takes the 
 case from the jury and submits it to the 
 court to be decided as a question of 
 law. By disputing the facts set up in 
 the demurrer and appealing to the jury 
 to determine the facts thus disputed he 
 submits his case to a different tribunal 
 and upon an entirely different theory." 
 3 In Hartford City, etc., Co. v. Love, 
 12^ Ind. 275, it was held that it was 
 not error to permit a complaint to be 
 amended after a demurrer to the evi- 
 dence was filed, and that if the demur-
 
 g42 ERROR IN JUDICIAL PROCEEDINGS. 
 
 own pleasure and over the objection of his adversary, take 
 another different and inconsistent position. The acquiescence 
 of the plaintiff in such a case as that under discussion is a 
 waiver, complete and effectual, but if he had made an oppor- 
 tune and appropriate objection, the defendant could not, as we 
 believe, have retraced his steps and recalled the case from the 
 tribunal to which he had voluntarily submitted it. We think 
 it safe to conclude that after a decision upon a demurrer to the 
 evidence the demurring party can not, as of right, ask that the 
 case be taken from the court and given to the jury, but that if 
 the adverse party does not object, there is an effective waiver. 
 
 § 687. Motion for Direction to Jury to return a Verdict in favor 
 of Moving Party— Effect of subsequently giving Evidence— The prin- 
 ciple stated in the preceding paragraph applies to cases where 
 a party asks the court to direct the jury to return a verdict in 
 his favor. If a defendant upon the close of the plaintiff's evidence 
 moves the court to direct a verdict in his favor, he must stand 
 upon his motion, for if he subsequently introduces evidence he 
 waives his motion. 1 By moving for such an instruction, he asks 
 the court to determine the case, thus withdrawing it from the 
 jury, and when he recedes from his motion and introduces evi- 
 dence he puts the case to the jury, thus effectively taking it 
 from the court. The power of the court to withdraw the case 
 from the jury where there is no conflict in the evidence is un- 
 
 ring party had asked leave to withdraw in favor of the plaintiff, if the defend- 
 
 his demurrer it would have been the ant rests his case' on such testimony 
 
 duty of the court to permit it to be and introduces none in his own behalf ; 
 
 withdrawn. but if he goes on with his defense and 
 
 1 Joliet, etc., Co. v. Shields, 134 111. 209, puts in testimony of his own, and the 
 
 26 N.E. Rep. 1086; Geary t;.Bangs(Ill.), jury, under proper instructions, finds 
 
 27 V E. Rep. 462; Grand Trunk Ry. Co. against him on the whole evidence, the 
 7 . Cummingfe, 106 U. S. 700. In the judgment can not be reversed, in the 
 case last cited it was said: "It is un absence of the defendant's testimony, 
 doubtedly true that a case may be pre- on account of the original refusal, even 
 
 ted in which a refusal to direct a though it would not have been wrong 
 
 verdict for the defendant at the close of to give the instruction at the time it 
 
 the plaintiff's testimony will he <jood was asked." 
 ground for the reversal of a judgment
 
 WAI\ ER 
 
 643 
 
 doubted, 1 but, as defects or omissions in the evidence of the 
 party who has the burden ma}- be supplied by the evidence of 
 the adverse party, the appellate tribunal can not say in the ab- 
 sence of that evidence that defects and omissions were not sup- 
 plied ; on the contrary, as the presumption is in favor of the 
 judgment of the trial court, it must be inferred, in the absence 
 of a countervailing showing, that defects and omissions were 
 supplied or remedied. It follows, therefore, that where a party 
 does not stand upon his motion, but goes on with the case as 
 one for the jury, all the evidence must be before the court on 
 appeal and the judgment in that court must rest upon the whole 
 evidence, and not upon the evidence of one, only, of the parties. 
 
 § 688. Waiver of Objections to Pleadings by Demurring to the 
 Evidence — There is a seeming conflict in the cases upon the 
 question whether a party waives objections to his adversary's 
 pleadings by demurring to the evidence. The expressions in 
 
 1 Improvement Co. v. Munson, 14 
 Wall. 442; Commissioners v. Clark, 94 
 U. S. 278, 284; Chandler v. Von Roe- 
 der, 24 How. (U. S.), 224; Pleasants v. 
 Fant, 22 Wall. 1 16; Mutual Life Ins. Co. 
 v. Snyder, 93 U. S.393; Klein v. Russell, 
 19 Wall. 433,465; Gunther v. Liverpool, 
 etc., Co., 134 U. S. 110; Griggs v. 
 Houston, 104 U. S. 553; Railroad Co. 
 v. Fraloff, 100 U. S. 24; Hall v. Dur- 
 ham, 109 Ind. 434; Wabash Ry. Co. 
 v. Williamson, 104 Ind. 154; Carver 
 v. Carver, 97 Ind. 497; Dodge v. Gay- 
 lord, 53 Ind. 365, and cases cited; Moss 
 v. Witness Printing Co., 64 Ind. [25; 
 Templeton v. Voshloe, 72 Ind. 134; 
 Adams V. Kennedy, 90 Ind. 318; Tyson 
 V. Rickard, 3 Ilarr. & J. (Md.) 109; 
 Wheeler v. Schroeder, 4 R. I. 3S3; 
 Burke v. Lee, 76 Va. 3S6; Jewell V. 
 Parr, 13 Com. B. 909, 915; Clarlin V. 
 Meyer, 75 N. Y. 260, 266; Mobile, etc., 
 R. Co. v. Ladd (Ala.), 9 So. Rep. 169; 
 Williams v. Guile, 117 N. Y. 343, S. C. 
 6 Law. Rep. Anno. 366. As to the 
 quantum of evidence sufficient to make 
 
 it the duty of the court to submit the 
 case to the jury, see Woods v. Wiman, 
 122 X. Y. 445, 27 N. E. Rep. 919; Grif- 
 fith v. Baltimore, etc., Co., 44 Fed. Rep. 
 574; Rauber v. Sundback (S. Dak.), 46 
 N. W. Rep. 927; Bunt v. Sierra, etc., 
 Co., 13S U. S. 483; Boyd v. Brown, 120 
 Ind. 393, 22 X. E. Rep. 249; Bowman : . 
 Eppinger, 1 X. Dak. 21, 44 X. W. Rep. 
 1000; Robertson v. Edelhoff, 132 U. S. 
 614; Agnew v. Adams, 26 So. Car. 101; 
 Carver v. Detroit, etc., Co., 61 Mich. 
 584,28 N. W. Rep. 721; Brownfield v. 
 Hughes,i28Pa. St. 194, [8 Atl. Rep. 340; 
 Gicrmann v. St. Paul. etC.,Co., 42 Minn. 
 5,43 N. W. Rep. ^3. As suggesting 
 the test to determine whether the court 
 may direct a verdict, see Bulger V. 
 Rosa, 1 [9 \. V. 459, 24 X. E. Rep. 
 Chase v. Alley, 82 Me. 234, 19 Atl. Rep. 
 397; Hall V. Stevens, in. N. Y. 201. 5 
 Law. Rep. Anno. S02; Farnum 
 Pitcher, 151 Mass. 470, j 1 \ 1" K 
 590; Corning ;•. Troy, etc., Co., j,\ N 
 Y. 577; Morgan :•. Durfee, 69 Mo. 469; 
 Ensminger :•. Mclntire, 2^ Cal. 593.
 
 ^44 ERROR IN JUDICIAL PROCEEDINGS. 
 
 some of the cases seem to indicate that such objections are 
 waived. 1 But the direct and explicit decisions assert a differ- 
 ent doctrine, for they declare that the objections are not waived. 2 
 We think the true rule is that such objections as go to the mer- 
 its are not waived, but that no defects in the pleadings can be 
 considered in determining the demurrer."' A party who de- 
 murs to the evidence does not waive the right to insist that a 
 recovery can be had only under the issue made by the plead- 
 ings ; on the contrary, his demurrer objects that the cause of 
 action stated is not established by the evidence. It is, there- 
 fore, not sufficient to entitle the plaintiff to a judgment upon 
 demurrer that the admitted facts would entitle him to some 
 judgment. If the admitted facts do not establish the cause of 
 action stated in the complaint it will be prejudicial error to 
 overrule the demurrer. 4 
 
 § 689. Effect of a Demurrer upon the Right to make rulings upon 
 the Evidence Available — As the demurrer confesses that the facts 
 are true it may well be held that the party who demurs waives 
 all objections to the competency of the evidence. And so it 
 has been held/' In one of our cases it was declared in very 
 
 1 Stockwell v. State, ioi Ind. i, 5; ficient to maintain the issue. And the 
 Lindlev v . Kellev, 42 Ind. 294. judgments of the court upon such evi- 
 
 2 McLean v. Equitable, etc., Co., 100 dome will stand in place of the verdict 
 Ind. 127, 135; Bish v. Van Cannon, 94 of the jury. And after that, the de- 
 Ind. 263; United States Bank v. Smith, fendant may take advantage of defects 
 11 Wheat. 171. In the case last cited in the declaration by amotion in arrest 
 it was said: "It is said, however, on of judgment, or by writ of error. But 
 the part of the plaintiffs that this court the present case being brought here on 
 can not look beyond the demurrer to a writ of error, and the defendant, hav- 
 the evidence, ami inquire into defects ing the judgment below in his favor, 
 in the declaration. This position can may avail himself of all defects in the 
 not be sustained. The doctrine of the declaration that are not deemed cured 
 King's Bench in England,.in the case of by the verdict." See, also, Stolle v. 
 Cort v. Birbeck, 1 Doug. 21S. that upon .Etna, etc., Ins. Co., 10 W. Va. 546. 
 
 a demurrer to evidence the party can 3 2 Tidd's Pr. (4 Am. ed.) 865. 
 
 not take advantage of any objections to 4 Palmer V. Chicago, etc., Co., 112 
 
 the pleadings does not apply. By a Ind. 250. 
 
 demurrer to the evidence, the court in 5 Miller v. Porter, 71 Ind. 521; Rad- 
 
 which the cause is tried is substituted cliff v. Radford, 96 Ind. 482; Stockwell 
 
 in place of the jury. And the only v. State, 101 Ind. 1, 5. It was well 
 
 question is whether the evidence is suf- said, in Chapize V . Bane, 1 Bibb. 612:
 
 WAIVER. 645 
 
 broad terms that a motion for a new trial is not proper where 
 there is a demurrer to the evidence, 1 but we think, that, while 
 it is true that the demurring party waives all objections to the 
 admissibility of the evidence establishing the facts confessed 
 by his demurrer, it is, nevertheless, true that the opposite party 
 does not waive exceptions taken by him to the exclusion of 
 evidence which he appropriately offered. It is obvious that 
 there is a radical difference between a case where the evidence 
 offered by the party against whom the demurrer is directed is ex- 
 cluded and a case where evidence is admitted, for the party whose 
 evidence is kept out by the objections of his adversary does noth- 
 ing to waive his objections to the ruling excluding the evidence. 
 If a party can by demurring to the evidence of his opponent de- 
 prive the latter of competent evidence he virtually takes away 
 a right which the opponent has done his best to save and that, 
 too, where there is no fault on his part. This would certainly 
 be wrong. 2 In another case it is said in a general way that a 
 motion for a new trial is not proper except where it relates to 
 the assessment of damages, 3 but in that case the question was 
 not before the court, so that it can not. be justly said that there 
 was any adjudication upon it. We think it very clear that 
 there are cases where the party adverse to the one who demurs 
 may save objections by a motion for a new trial. If this be 
 not true, then, it must be true that there are cases where one 
 party by his own action may. deprive his adversary of a right, 
 although the party deprived of the right is without fault. Such 
 a conclusion is in conflict with principle. It would place a 
 vigilant and diligent party wholly at the mercy of his opponent 
 and this no just principle will tolerate. 
 
 § 690. Waiver as Affecting the Mode of Trial— Where a party 
 
 fails to insist upon the right to a trial in a particular mode and 
 
 "The particular manner in which an and it is explicitly declared that the party 
 
 admitted truth has been introduced into whose evidence i> excluded is not de- 
 
 the cause as evidence, does not seem to prived of his right to insist upon his 
 
 be of any importance." objections on appeal. The decision in 
 
 1 Ruddell v. Tyner, S; Ind. 529. the case here cited, in effect, denies 
 
 2 Washburn V. Hoard, 104 Ind. 321. some of the statements in Ruddell V. 
 322; Huff v. Cole, 45 Ind. 300. In the Tyner, supra. 
 
 case first cited the question is discussed 3 Strough v. Gear, .p Ind. 100.
 
 (J46 ERROR IN JUDICIAL PROCEEDINGS. 
 
 submits to a trial in a mode directed by the court, he is r as a 
 general rule, precluded from making an objection to the mode 
 of trial adopted after the judgment or decree has been entered. 
 It is, indeed, true, as a rule, that objections to the mode of trial 
 must be interposed before entering upon the trial. This rule is 
 in harmony with the general doctrine that a party must object 
 at the proper stage of the proceedings, and this ordinarily re- 
 quires that the objection be made at a time when it will not 
 compel the court to retrace its steps. It is not the right of a 
 part)- to demand that action taken by the court shall be set aside 
 and the proceedings begun anew, so that it is the duty of a 
 party to present his objections before entering upon the trial. 
 The rule that a party must appropriately and seasonably object 
 to the mode of trial ordered by the court is illustrated by many 
 cases. Thus, where a party makes no objection to an order re- 
 ferring a case to a referee or to a master commissioner, he 
 waives the objection that the case is not triable in such a mode." 
 So, atrial before a master without an objection waives the right 
 to insist on appeal that no order of reference was made. 2 Again, 
 a party who enters upon a trial by the court can not success- 
 fully object after the court has proceeded with the trial that the 
 case is one for the jury, nor, on the other hand, can a party 
 who does not seasonably object to a trial by jury, afterwards 
 successfully urge that the case should have been tried by the 
 court. 3 
 
 1 Baird v. Mayor, 74 N. Y. 382; s Sheets v. Bray, 125 Ind. 33,24 N. E. 
 Trenholm v. Morgan, 28 So. Car. 26S, Rep. 357; Jarboe v. Severin, 112 Ind. 
 5 S. E. Rep. 721; Grant v. Reese, 82 572; Sprague v. Pritchard, 10S Ind. 
 N. C. 72; Harris v. Shaffer, 92 N. C. 491; Taggart v. Tevanny, 1 End. App. 
 30. See, generally, Allis v. Day, 14 339.354; Strauss t\ Cooch, 47 Ohio St. 
 Minn. 516; Strong v. Willey, 104 U. S. 115.24 N. E. Rep. 1071; Heacock v. 
 q 1 2 ; Rhodes v. Russell, 32 So. Car. Hosmer, 109 111. 245; Brown v. Lawler, 
 ^s^, 10 S. E. Rep. 82S. 21 Minn. 327; Brown v. Nagel, 21 Minn. 
 
 2 Spencer v. Levering, S Minn. 461, 415; Van Orman v. Merrill, 27 Iowa. 
 .('.7. In the case cited it was said: 476; Gibbs v. Coonrod, 54 Iowa. 730; 
 " The other point- made by the plaintiff Weaver v. Kintzlej r , 58 Iowa, 191; 
 in error, to wit, that the record does not Hatch v. Judd, 29 Iowa. 95; Taylor v. 
 show an order referring the cause to a Adair, 22 Iowa, 279: Byers v. Roda- 
 referee for trial, should have been baugh, 17 Iowa, 53. See, generally, 
 
 1 in the court below, it can not be Lace v. Fixen, 39 Minn. 46, 38 N. W. 
 made here for the first time." Rep. 762; Haves v. Clark, S4 Cal. 272,
 
 WAIVER. 
 
 §691. Rulings Respecting Procedure oil the Trial— 111 astral 
 Cases — A party who fails to exercise reasonable diligence and 
 
 to employ the usual and appropriate methods of objecting to 
 those who are to act as triers of his case can not successfully ob- 
 ject to their competency or qualifications on appeal. This gen- 
 eral rule is subject to the limitation, mentioned in a prior para- 
 graph of this chapter, that a party does not waive a matter oi 
 which he is excusably ignorant, but, as substantially remarked 
 in the paragraph referred to, the ignorance must be excusable, 
 and excusable it can not be if the party has not been vigilant 
 and diligent. The qualification, that ignorance must be 
 excusable, is of great practical importance and so frees the 
 general rule from restriction that practically there are compara- 
 tively very few cases which it does not control. The rule that 
 a party who does not object to his triers applies to the person 
 who sits as judge, for the failure to seasonably and appropriately 
 object to his competency precludes the party under a duty to 
 object from successfully urging the objection on appeal as a 
 cause for a reversal of the judgment from which the appeal is 
 prosecuted. 1 Objections to the competency, qualification 
 and swearing of jurymen are, as a general rule, waived un- 
 less seasonably and appropriately made, 2 but where proper 
 
 24 Pac. Rep. nf>; Hauser v. Roth, 37 State. 113 Ind. 295; Bartley v. Phillips, 
 
 Ind. 89; Griffin v. Pate. 63 Ind. 273; 114 Ind. 1S9; Feaster v. Woodfill, ^3 
 
 Ketcham v. Brazil, etc., Co., SS Ind. Ind. 493; Powell r. Powell. 104 Ind. iS; 
 
 515; Love v. Hail, 76 Ind. 326; Odell Greenwood v. State, 116 Ind. 4^ 
 
 v. Reynolds, 40 Mich. 21. If objection N. E. Rep. 333; Cargar v. Fee, 119 
 
 to the mode of trial is made it will ordi- Ind. 536; Adam v. Gowan. S9 Ind. 
 
 narilv be waived unless the ruling is 35S; Rogers v. Beauchamp, 102 Ind. 33; 
 
 specified as cause for a new trial in the Board v. Courtney, 105 Ind. 311; Lillie 
 
 proper motion. Huffmond r. Bence. 12S v. Trentman (Ind.). 29 N. E. Rep. 405. 
 
 Ind. 131; Ketcham v. Brazil, etc.. Co., s See " Impaneling the Jury." Do- 
 
 88 Ind. 515. Ian V. State. [22 liul. 141; Cnfried V. 
 
 'Stearns v. Wright. 51 X. II. 600; Baltimore, etc., Co., 34 W. Va. 260,12 
 
 Peebles v. Rand, 43 N. H.337; Moses S. E. Rep. 512; Sandford Tool Co. r. 
 
 u.Julian, 45 N. H". 52; Dolan v. Church, Mullen, 1 Ind. A.pp. 204. The general 
 
 iWyo. 1S7; State r.Whitncv. 7 Oregon, doctrine that a party who has an oppor- 
 
 }86; State 1 .Voorhies, 41 La. Ann. 567, tunity to object to the persons called to 
 
 6 So. Rep.S2C>; Bowen v. Swander, 121 trv his case must seasonably avail him- 
 
 Ind. 164; Hayes v. Sykes, 120 Ind. 1S0; self of the right applies to proceedings 
 
 Littleton?'. Smith, 119 Ind. 230; Smurr before inferior tribunals. Matter of 
 
 v. State, toe Ind. 125; Schlungger v. New York, etc., Co., 35 Hun. 575;
 
 ,;|S ERROR INJUDICIAL PROCEEDINGS. 
 
 diligence is exercised and the incompetency of a juror is not 
 discovered until after the verdict, the ignorance of the party is 
 excusable, and he may then successfully urge a valid ob- 
 jection. 1 A party dissatisfied with the answers of the jury to 
 interrogatories must move to recommit for more specific an- 
 swers or he will waive his right to insist on appeal that the an- 
 swers of the jury are not sufficiently specific. 2 
 
 § 692. Rulings on the Trial — General Doctrine — What is not 
 objected to on the trial is, wherever the ruling relates entirely 
 to trial procedure, waived, and so effectively waived as to be 
 unavailing on appeal. The rule to which we have often referred 
 that rulings on the trial not effectively questioned by specific ob- 
 jections are waived, is one of very wide scope. It is, it may be 
 well enough to say here, although the subject is hereafter dis- 
 cussed, not sufficient to object, for the objection must be sup- 
 plemented by an exception. The failure to except is, in effect, 
 a waiver of the objection, although the objection ma)' be season- 
 ably interposed and well stated. There is, therefore, reason 
 for affirming that an objection adequately stated may be waived 
 bv silence or inaction. Nor is it always sufficient to object and 
 except, for, as a general rule, an opportunity for review must 
 be given the trial court by the appropriate motion. 3 
 
 Cauldwell v. Curry, 93 Ind. 363; Brad- Jones r.Van Patten, 3 Ind. 107; Heaston 
 ley v. City of Frankfort, 99 Ind. 417; V. Colgrove, 3 Ind. 265; McKinney V. 
 Towns v. Stoddard, 30 X. II. 23; Ips- Springer, 6 Ind. 453; Zehnor v. Beard, 
 wich v. Essex Co., 10 Pick. 519; Town S Ind. 96; Vance v. Cowing, 13 Ind. 
 of (■roton v. Hurlburt, 22 Conn. 17S; 460; Dickerson v. Turner, 15 Ind. <; 
 fohns v. Hodges, 60 Md. 215, S. C. 45 Ferris --.Johnson, 27 Ind. 247; Ringle 
 Am. Rep. 722; Wassum v. Feeney, 121 v. Bicknell, 32 Ind. 369; State v. Pro- 
 Mass. 93; Hilltown Road, 18 Pa. St. 233; basco, 46 Kan. 310, 26 Pac. Rep. 749; 
 !' pie v. Taylor, 34 Barb. 481; Howard Hughes v. Commonwealth (Ky.), 14 S. 
 v. Sexton, 1 Denio. 440; Browning V. W. Rep. 682; Fifth Avenue Bank v. 
 Wheeler, 24 Wend. 25S. Webber, 27 Abbott's N. Cases, 1; 
 
 1 Rhodes v. State, 12S Ind. 1S9. Thomas v. Griffin, 1 Ind. App. 457, 27 N. 
 
 2 Dockerty v. Hutson, 125 Ind. 102; E. Rep. 754; Thrasher v. Postel, 79 Wis. 
 McElfresh v. Guard, 32 Ind. 40S; Vater 503, 4S N.W. Rep. 600; Hayes v. Solo- 
 :. Lewis, 36 Ind. 288; Reeves v. Plough, mon, 90 Ala. 520. 7 So. Rep. 921; Brans- 
 41 Ind. 204. ford v. Karn (Va.), 12 S. E. Rep. 404. 
 
 3 Comparet v, Hedges, 6 Blackf. 416;
 
 CHAPTER VII. 
 
 CURING ERRO R. 
 
 5 693. Origin and nature of the power 
 to cure error. 
 
 694. Limitations of the power — Ex- 
 
 ceptional cases. 
 
 695. Exercise of the power to cure 
 
 errors. 
 
 696. Asking for time in cases where 
 
 a ruling is changed. 
 
 697. Rulings made during the forma- 
 
 tion of issues. 
 
 69S. Curing error in the admission 
 of evidence by supplementing 
 it with evidence making it 
 competent. 
 
 699. Proving the same facts by com- 
 petent testimony sometimes 
 obviates the error in admitting 
 incompetent evidence. 
 
 § 700. Withdrawal of incompetent ev- 
 idence. 
 
 701. Instructions to disregard incom- 
 
 petent evidence. 
 
 702. Exceptional cases. 
 
 703. Effect of sustaining a motion 
 
 to strike out incompetent tes- 
 timony. 
 
 704. When a party can not withdraw 
 
 evidence over the objection of 
 his adversary. 
 
 705. Curing error- in instructions. 
 
 706. Refusal of instructions. 
 
 707. Subsequently admitting evidence 
 
 once excluded. 
 70S. Miscellaneous instances. 
 
 § 693. Origin and Nature of the Power to Cure Error— Resident 
 in every court of general jurisdiction is the power to rectify 
 mistakes and correct errors into which it has fallen regarding 
 matters of law, and this power may, as a general rule, be ex- 
 ercised upon discovering the mistake or error at any time be- 
 fore the case is terminated by a final judgment. The power 
 may, indeed, be exercised after final judgment, as, for instance, 
 in cases where a new trial is granted or a motion in arrest is 
 sustained. But reviewing questions upon such motions belongs 
 to a different branch of our general subject rather than to the 
 special subject of the present chapter, and we mention the topic 
 here lest it be supposed that we mean to be understood as af- 
 firming that the power to correct errors or rectify mistakes can 
 not be exercised after final judgment. That we do not mean, 
 
 ' (649)
 
 650 ERROR IN JUDICIAL PROCEEDINGS. 
 
 lor. as will elsewhere appear, 1 we assert the power to review 
 and correct even after a final judgment, but at present our pur- 
 pose is to consider the nature and extent of the power to cure 
 or heal error during the formation of issues or the progress of 
 a trial. The rule that courts may cure errors in their rulings 
 is a very ancient one. The underlying principle is that which 
 constitutes the foundation of the doctrine that nunc pro tunc 
 orders and entries may be made while the proceedings are in 
 fieri, and, although there is a difference between curing error 
 and making nunc pro tunc entries or orders, the general prin- 
 ciples involved are closely allied and the early discussions upon 
 the right to make such orders or entries are pertinent to the 
 subject of curing or healing errors. 2 The power to order or 
 permit an act to be done now for then is not conlined to acts of 
 the court itself, for it may extend to the acts of the parties. 
 Thus, a party may be permitted to file an affidavit now for then 
 even though the affidavit is requisite to jurisdiction and ought, 
 in strictness, to have been hied at the time the action -was com- 
 menced. 3 The general power to permit parties to file papers 
 now for then, to make nunc pro time entries, and to permit 
 amendments to be made having a retroactive effect, is nothing 
 more at bottom than the inherent right existing in courts to 
 rectify mistakes, cure errors and heal defects. This right is 
 exercised in cases where orders improvidently made are va- 
 cated, 4 where certificates to records are directed to be amended, 5 
 and in many other cases, as will hereafter be fully shown. We 
 
 1 Post, " Presenting an Opportunity Shepherd v. Pepper, 133 U. S. 626. 
 
 for Review," Chapter X I V. See, generally, Crum v, Elliston, 33 Mo. 
 
 3 Lord Mohun's Case, 6 Mod. 59; App. 591; Horn v. Indianapolis Nat. 
 
 Hodges v. Templer, 6Mod. 191; Mayor Bank, 125 Ind. 381, 25 N. E. Rep. ss§; 
 
 of Norwich ,v. Berry, 4 Burr. 2277; Montgomery Co. v. Auchley, 103 Mo. 
 
 Mitchell v. Overman, 103 U. S. 62; 492, 15 S. W. Rep. 626; State v. Farrar, 
 
 Shephard ••. Brenton, 20 Iowa, 41; 104 N. C. 702, 10 S. E. Rep. iqg; Se- 
 
 Hess v. Cole. 23 N.J. Law, 1 [6; Deal curity Co. v. Arbuckle, 123 Ind. 518. 
 
 :■. I loiter, 6 Ohio St. 22S. The power * State v. New Orleans, 43 La. Ann. 
 
 is an inherent one inasmuch as all 441, 9 So. Rep. 643. See, generally, 
 
 courts of justice must have power to Hubbard v. Camperdown Mills, 26 So. 
 
 prevent wrong results from flowing Car. 581, 2 S. E. Rep. ^76. 
 
 from their own errors. Chissom v. & Idaho, etc., Co. v. Bradbury, 132 U. 
 
 Barbour, 100 Ind. 1. S. 509. 
 
 3 Carr v. Fife, 45 Fed. Rep. 209;
 
 CURING ERROR. 651 
 
 have indicated, in outline at least, the general nature of the 
 power and have shown that it has long existed, and that is all that 
 we need do at the outset ; so much seemed necessary in order 
 to prepare the way for the consideration of particular instances 
 of the general doctrine we are endeavoring to state, but the 
 doctrine is by no means confined to the class of cases of which 
 that instanced is a type. It is, of course, essential that the 
 party to whom the change in a ruling is adverse should request 
 an opportunity to meet the new condition produced by the 
 change, for if he does not make the proper request he will lose 
 his right by waiver. The request must be opportunely and 
 properly made, it must be brought into the record, and the 
 necessary exception must be entered. This is indispensably 
 necessary, inasmuch as there is seldom error in the change 
 itself; the available error is in denying the request for time or 
 opportunity to meet the case as the change presents it. 
 
 § 694. Limitations of the Power— Exceptional Cases— Some of 
 the courts hold that a ruling may be so radically wrong and so 
 manifestlv injurious that the error can not be cured by a change 
 in the ruling. We think there may be cases, although rare 
 and extreme ones, where the error may penetrate so deeply 
 and be so widely influential that it can not be cured by a sub- 
 sequent ruling. Thus, if evidence of a character likely to in- 
 flame the prejudices of the jurors is persistently given to the 
 jury over objection, we think that a subsequent withdrawal of 
 the objectionable evidence will not always cure the error. 
 While it is no doubt true that in the very great majority of 
 cases the withdrawal of incompetent evidence does cure the 
 error committed in suffering it to go to the jury, there are. as 
 we believe, rare instances where the mischief done is incura- 
 ble. So, where the court improperly makes a remark efl'eei- 
 ively and stronglv discrediting the testimony of a witness the 
 withdrawal of the remark can not always repair the injury, for 
 so much depends upon the behavior and manner of a witness 
 that the effect of such a remark can not always be dissipated 
 by a withdrawal or by an instruction to disregard it. There 
 must, it seems to us, be cases where the wrong ruling exerts 
 such a stromr influence that its effect can not be destroved ex-
 
 (552 ERROR IN JUDICIAL PROCEEDINGS. 
 
 cept by granting a new trial. Although such cases are very 
 rare, and must be decisively impressed with peculiar and ex- 
 traordinary features to take them out of the general rule, they 
 do exist. 1 
 
 § 695. Exercise of the Power to Cure Errors — The power to cure 
 error by withdrawing, abrogating or changing rulings, com- 
 prehensive as it is, can not be arbitrarily exercised to the in- 
 jury of a litigant. As the court is presumed to adhere to a 
 theory declared or indicated by a ruling- it can not depart from 
 that theory without giving a party who has acted upon it an 
 opportunity to meet the situation brought about by a change 
 of ruling when the proper request is duly preferred. Thus, if 
 by a ruling upon a demurrer to an answer the court clearly in- 
 dicates that the defendant will not be allowed to give evidence 
 in support of the defense held insufficient, the court can not 
 change its ruling and allow evidence to be introduced in sup- 
 port of such a defense without giving the plaintiff an opportu- 
 nity to prepare to meet the new theory indicated and declared 
 by the change in the ruling. The case adduced as an illustra- 
 tion is but a type or representative of many, for it may very 
 often happen that a change in a ruling will work injustice un- 
 less a party is afforded a reasonable opportunity to prepare for 
 trial, or for proceeding with the trial, under the changed con- 
 dition of affairs. 
 
 § 696. Asking Time in Cases where a Ruling is Changed — It is, 
 
 of course, not even- ruling reversing, vacating, or changing 
 prior rulings that will entitle a party to a postponement or con- 
 tinuance ; on the contrary, it is only where the change is so 
 radical as to make it manifestly unjust to compel him to pro- 
 ceed, that he can rightfully ask that proceedings may be de- 
 laved. There are, however, cases where justice requires that 
 a trial be postponed. In cases where there is a right to a post- 
 ponement, the party entitled to it should make the necessary 
 showing and request the court to postpone the trial. This rule 
 
 1 Furst v. Second Avenue, etc., Co., Y. 299, 302; O'Sullivan v. Roberts, 39 
 72 \. V. 542; Erben v. Lorillard, uj N. X. Y. 360. 
 
 2 Ante, § 591.
 
 CURING ERROR. 653 
 
 is supported by the numerous cases which hold thai where an 
 amendment is ordered the party who desires a postponement 
 must make the appropriate request, and it is in harmony with 
 the rules declared in many kindred instances. 
 
 § 697. Rulings made during the Formation of Issues— It is quite 
 clear that courts possess the power to correct rulings upon mo- 
 tions or demurrers at any time before the issues are closed. 1 
 The power may, indeed, be exercised after the close of the 
 issues and during the progress of the trial. But, upon the prin- 
 ciple stated in a former paragraph, a change in a ruling upon a 
 pleading may in some instances entitle a party who appro- 
 priately and seasonably requests it to a postponement of the 
 case in order to prepare for trial, or other action, under the new 
 theory created by the change of a former ruling. The doctrine 
 that the court may cure error by vacating or changing a wrong 
 ruling made in the formation of the issues extends to cases where 
 the court affords the party an opportunity to make the same 
 proof that he could have made had the original ruling been en- 
 tirely correct. Thus, where the court erroneously strikes out 
 the answers of a defendant, but subsequently opens the way to 
 him to give all the evidence he could have given had the motion 
 to strike out been overruled, the error in sustaining the motion 
 is cured. 2 While there can be no doubt that the rule is that an 
 
 1 First National Bank of Huntington Mr Murray. 75 Iowa. 173. 39 X. W. Rep. 
 
 v. Williams, 1 ;:<> Ind. 423. In Mitchell 255: Palmer V. Arthur. 131 U. S. 60. 
 
 v. Friedley, 126 Ind. 545.it was held 2 McNamara v. Estes, 22 Iowa, 246. 
 
 that where the court had heen requested In the ease cited Judge Dillon, sp< 
 
 to make a special finding, but had over- for the court, said: "The eourt.it is 
 
 looked or forgotten the request, it was true, struck their answer from the files. 
 
 not error to withdraw a general finding If the action of the court were admitted 
 
 it had announced. See Derrick V. Em- to he erroneous, it was cured by the 
 
 mens, 3S N. Y. Supp. 481. See, gen- subsequent action of the court, allowing 
 
 crally, Hughes V, Wheeler, 76 Cal. 230, the appellants the opportunity to prove 
 
 18 Pac. Rep. 3S6. An error in ruling that no levy or assessmenl was ever 
 
 on the pleadings may he cured bv the made." The principle that if ample 
 
 decree. Meek v. Spracher (Va.), 12 S. opportunity is given a party to intro- 
 
 E. Rep. 397. There are many cases in i.hnv evidence, an error in a former 
 
 which it has been held that errors in ruling is healed is asserted in the ca6e 
 
 rulings on the pleadings are cured by of the Louisville, etc., Co. v. Falvey, 
 
 special findings or special verdicts. 104 Ind. 409; Mann v. Maxwell, 83 Me. 
 
 Miller v. Louisville, etc., Co., 12S Ind. 146. 21 All. Rep. 844; Elwell v. Fabre, 
 
 97, 27 N. E. Rep. 339; Carruthers v. 13 N. Y. Supp. 829.
 
 654 ERROR IN JUDICIAL PROC1 EDINGS. 
 
 error may be cured by affording a party full opportunity to 
 avail himself of all the rights he could have made available 
 had the original decision been correct, still, the rule is one to 
 be applied with caution and care. If the opportunity offered is 
 not ample, the error ought not to be regarded as cured. Thus, 
 for illustration, if the court should sustain a demurrer to an an- 
 swer, and upon the trial should change its ruling, the error 
 would not be healed unless the defendant was allowed reason- 
 able time and opportunity to bring forward the necessary evi- 
 dence. If the defendant in such a case as that supposed were 
 not allowed fair opportunity and reasonable time to prepare for 
 a defense, the error in the last ruling would be more injurious 
 and the injustice more flagrant than in the first instance, inas- 
 much as such a course would deprive him of his exceptions to 
 the original ruling and yield him no substantial benefit. 1 But, 
 it may be well enough to say, if the defendant in such a case as 
 that supposed desires to save the question he should make the 
 proper request for time, and reserve an exception ; foiling in 
 this the doctrine of waiver will preclude him from successfully 
 urging the point on appeal. If the ultimate decision clearly 
 shows that a full and fair opportunity was given a party to 
 avail himself of his rights under the law, or if all such rights 
 were secured to him, errors in ruling on the pleadings are cured. 2 
 This is clearly so, for, if the ultimate decision is right although 
 the wrong mode has been pursued, all intervening errors are 
 cured. No party can be prejudiced where the final decision 
 awards him what the law secures him. 3 It is probably true that 
 there are other reasons supporting this conclusion than that as- 
 signed, but this does not, of course, impeach the validity of the 
 conclusion. 4 
 
 1 Pettygrovet'. Rothschild, 2 Wash. 6, reached by wrong mode." Clark v. 
 25 Pac. Rep. 907. City of Austin, 3S Minn. 487, 38 N. W. 
 
 2 Bitzer v. Wagar, 83 Mich. 223, 47 Rep. 615. 
 
 N. W. Rep. 2IO. See, generally, Elli- ''The line between the subjects, 
 
 son v. Rerick, 125 Ind. 396, 25 N. E. "waiver," and "curing error," is often 
 
 Rep. 454; Payne v. Hardest y (Ky.), 14 very indistinct and shadowy. In general 
 
 S. W. Rep. 348; Roy f. Union, etc., Co. the term "w aiver" refers to the act of the 
 
 ( Wyo.), 26 Pac. Rep. 996. party. while the term,"curingerror,"usu- 
 
 :i Ante, § 590. " The ultimate ruling ally refers to the conduct of the court, 
 
 is decisive." § 590, "Right result but the general principle governing cases
 
 CURING ERROR. 655 
 
 § 698. Curing error in the Admission of Evidence by supplement- 
 ing it by Evidence making it Competent — The general rule is that 
 there is no available error in admitting incompetent testimony 
 if evidence is subsequently given which makes it competent. 
 This is true for two reasons ; one is, that the order of introduc- 
 ing evidence is a matter largely in the discretion of the trial 
 court, and another is, that where the ultimate result is right, 
 although reached by a wrong mode, intervening errors are dis- 
 regarded. If the evidence subsequently introduced makes the 
 other evidence competent the objections become unavailing. 1 
 
 § 699. Proving the same facts by Competent Testimony sometimes 
 obviates the error in admitting Incompetent Evidence — It is held 
 that if facts are allowed to be proved by incompetent testimony 
 the error is cured if the same facts are subsequently proved by 
 competent testimony. 2 The decided cases may possibly require 
 the conclusion that the statement in the preceding sentence ex- 
 presses the general rule, but even if the rule can be justly said 
 to be general, it must also be said that it is much narrower than 
 most general rules and its operation is interrupted by very many 
 exceptions. We are, indeed, strongly impressed with the be- 
 where an opportunity is offered a party * Morris v. Wells, 54 Hun. 634, 7 N. 
 Df which he fails to avail himself is com- Y. Supp. 61; Brown v. Klock, 52 
 mon to both. This is evident from the Hun. 613, 5 N. Y. Supp. 245; Mac- 
 discussions found in many judicial opin- Kay v. Riley (111.), 26 N. E. Rep. 525; 
 ions. Newton t>. Newton, 46 Minn. 33, Patten v. Belo, 79 Texas, 41; New 
 4S N. W. Rep. 450; Suarez v. Manhat- York, etc., Co. v. Gallagher, 79 Texas, 
 tan Ry. Co., 60 Hun. 5S4, 15 N.Y. Supp. 685, 15 S. E. Rep. 694; Shaw v. Bryan. 
 222; Wynn v. Central, etc., Co., 14 N. 39 Mo. App. 523; Blake v. Broughton, 
 Y. Supp. 172; Wing v. De La Rionda, 107 N. C. 220, 12 S. E. Rep. 127; At- 
 125 N. Y. 67S, 25 N. E. Rep. 1064; kinson v. Olesener, 57 Hun. 592, 10 N. 
 Washington v. Louisville, etc., Co., 34 Y. Supp. S22; Jacksonville, etc., Co. v. 
 111. App. 65S, S. C. 26 N. E. Rep. 653; Peninsular, etc., Co. (Fla.), 9 So. Rep. 
 Morrison v. Hedenberg (111.), 27 N. E. 661; Olson v. Solverson, 71 Wis. 663, 38 
 Rep. 460. N. \V. Rep. 329; Hooker v. Village of 
 
 1 Black v. Camden, etc., Co., 45 Barb. Brandon, 75 Wis. S, 43 N.W. Rep. 741 ; 
 40; Harrington 7'. State. S3 Ala. 9, 3 So. Addy v. Janesville, 70 Wis. 401. 35 N 
 Rep.425; Barklv:'.Copeland,7 4 Cal. 1. W. Rep. 931; Meracle v. Down. 64 
 S.C.5 Am. St. Rep. 413; Crich r.Wil- Wis. 323, 25 N. W. Re P . 412; Cameron 
 liamsburgh, etc.', Co., 45 Minn. 441, 4S v. White, 74 Wis. 425, 43 N. W. Rep. 
 N. W. Rep. 19S; Gano v. Chicago, etc., 155; Hanf v. Northwestern Association, 
 Co., 66 Wis. 1, 27 N. W. Rep. 628. 76 Wis. 450. 45 N. W. Rep. 315.
 
 (356 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 lief that the rule can not be accurately said to be a general one. 
 Tt may no doubt be properly given effect where it is clear that 
 the incompetent evidence could have done no harm, 1 but it is 
 equally certain that there are many cases where incompetent 
 evidence of the same facts as those proved by other evidence 
 may exert a very prejudicial influence, inasmuch as it is almost 
 certain to be regarded by the jury as corroborative, whereas it 
 ought not to be considered for an)' purpose. 2 We can not resist 
 
 1 Of the class of cases referred to in Hagan tc be proven." In the well con- 
 the text the following may be taken as sidered case of McAllister v. Detroit, 
 representatives or types: Bradley v. etc.,Co.,85 Mich. 453, 48 N.W. Rep.612, 
 Palen, 7S Iowa. 126, 42 N.W. Rep. 623; 613, it was said: "It is true the court 
 Beard v. First National Bank, 41 Minn, directed the jury that the only thing in 
 [53, 43 N. W. Rep. 7: Board v. Ham- the case was the publication of the 
 niond, 83 Ind. 4^3; Cooper v. Coates, matter so far as it was untrue, and that 
 21 Wall. 105; Barth v. Clise, 12 Wall, they should not take into consideration 
 400; McAlpin v. Ziller, 17 Texas, 508; in the matter of damages the outrages 
 Sadler v. Sadler, 16 Ark. 628; Cooper committed by the Windsor officers, and 
 v. Breckenridge, 11 Minn. 341. that whether the arrest was legal or 
 
 2 In the case of Anderson v. Rome, justifiable was wholly immaterial to the 
 etc., Co., 54 N. Y. 334, 341, the court issue, and they should not consider the 
 held that proving the same facts in a arrest at all, but only the publication, 
 legitimate mode did not heal the error This testimony had been given to the 
 in suffering incompetent testimony to jury, however, tending to create in their 
 go to the jury, and said, in the course minds a feeling of indignation at such ill 
 of the opinion: "The reception of ille- usage, and the charge very likely would 
 gal evidence is presumptively injurious not remove it, and it would remain 
 to the party objecting to its admission; with them when they retired to their 
 but when the presumption is repelled, jury room to consider of their verdict, 
 and it is clear beyond a rational doubt, notwithstanding the charge." People 
 
 that no harm was done to the party 
 objecting, and that the illegal evidence 
 did not and could not affect the result, 
 the error furnishes no ground for re- 
 versal. People t\ Gonzales, 35 N. Y. 
 
 v. Evans, 72 Mich., 367, 40 N. W. Rep. 
 473. The subject received careful con- 
 sideration in the case of Meyer r>. Lewis, 
 43 Mo. App. 417. and, after a full and 
 discriminating review of the authorities, 
 
 49; Yandevoort v. Gould, 36 N. Y. 639, it was held that an instruction to disre- 
 
 644. Any illegal evidence that would gard incompetent evidence was suffi- 
 
 have a tendency to excite the passions, cient as a general rule to cure the error, 
 
 arouse the prejudices, awaken the sym- but that there are cases where such an 
 
 pathies or warp the judgments of the error is not cured by an instruction. It 
 
 jurors in any degree could not be con- was said: "We conclude, therefore, that 
 
 sidered harmless." It was also said: the general rule applicable to civil trials 
 
 " 1 am of the opinion that the fact that is, that incompetent evidence admitted 
 
 Sullivan was called and sworn as a in the progress of the trial may be with- 
 
 witness does not cure the error com- drawn by the party offering it, or sjxick- 
 
 mitted in allowing his declaration to en out on his motion, or withdrawn by
 
 CURING ERROR 
 
 Go 7 
 
 the conclusion that some of the courts have given the doctrine 
 a much wider scope than principle warrants. In many instances 
 it is scant comfort to a party to be turned away with the answer 
 that it is true that the incompetent evidence ought not to have 
 been admitted, but as the same facts were proved by competent 
 evidence the error was healed. 
 
 § 700. Withdrawal of Incompetent Evidence— The general rule 
 asserted by many courts is that an error in suffering incompe- 
 tent evidence to go to the jury over objection may be cured by 
 an effective withdrawal of the incompetent evidence. 1 The 
 rule is one, as it seems to us, to be applied with scrupulous 
 care. The rule as it is sometimes applied works injustice. 
 The mere withdrawal of evidence does not always efface 
 or remove the effect it has produced. The impression pro- 
 duced bv evidence once heard is not easily eradicated. The 
 removal of an impression from the minds of men is not very 
 
 an instruction admonishing the jury to 
 disregard it so as to cure the error of 
 admitting it. But we are equally of 
 opinion that many cases may arise 
 where it will be apparent to a review- 
 ing court, from the nature of the evi- 
 dence in the case as preserved by the 
 bill of exceptions and from the verdict 
 rendered bv the jury, that the error of 
 admitting it was probably not cured by 
 the withdrawing of it. or by the striking 
 of it out. whether by the party offering 
 it or by the judge directing the jury to 
 disregard it." This doctrine is sustained 
 by other cases. French v. Detroit Free 
 Press Co. (Mich.), 4 S N. W. Rep. 615; 
 Furst v. Second Avenue Ry. Co., 72 N. 
 Y.542; Erbin v. Lorillard, 19N.Y.299, 
 302; Warrall v. Parmelee, 1 Comst.519; 
 Griggs V. Smith, 13 N. Y. Supp. 273; 
 Nichols v. White, 85 N. Y. 531, 536; 
 Pringle V. Leverieh, 97 N. Y. 1S1, 1S6; 
 Waring v. U. S. Tel. Co.. 4 Daly. 233; 
 Foote v. Beeclnr. 7S N. Y. 155; Baird 
 v. Gillett, 47 N. Y. 186; Railroad Co. 
 o.Winslow, 66 111. 219; Lycoming, etc., 
 
 42 
 
 Co. v. Rubin, 79 111. 402; Howe, etc., 
 Co. v. Rosine, 87 111. 105; State :•. 
 Thomas, 99 Mo. 235; State v. Daubert, 
 42 Mo. 242; Cobb v. Griffith, 12 Mo. 
 App. 130; Stephens v. Railroad, 96 Mo. 
 207. 
 
 1 Wright v. Gillespie, 43 Mo. App. 
 244; Ilillistad v. Hostetter, 46 Minn.. 
 393, 49 X. W. Rep. 192; State v. Cum- 
 mins, 76 Iowa, 133, 40 X. W. Rep. 124; 
 Woods v. Hamilton, 39 Kan. 69, 17 Pac. 
 Rep. 335; Indianapolis, etc., Co. v. Bush, 
 101 Ind. 5S2; Providence, etc., Co. v. 
 Martin. 32 Md.310; Boone v. Purnell. 2S 
 Md.607; Dillingham v. Russell, 73 Tex. 
 47, S. C.3 Law. Rep. Anno. 634; Decker 
 V. Bryant, 7 Barb. 182, 1S9; Clinton v. 
 Rowland, 24 Barb. 634; Boyd v. State, 
 17 Ga. 194; Davenport v. Harris, 27 
 Ga.68; Gray v. Gray, 3 Litt. (Kv.) 465; 
 Durant v. Lexington, etc., Co., 97 Mo. 
 62, 10 S. W.Rep.4S4; State V. Collins, 
 93 X. C. 564; McAllister v. McAllister, 
 12 Ired. 1S4; State V. May. 4 Dew 32S; 
 State v. Gay. 94 X. C. 841.
 
 65 8 ERROR IX JUDICIAL PROCEEDINGS. 
 
 unlike the removal of writing from paper or parchment ; des- 
 pite earnest efforts to remove it traces are likely to remain. 
 Whether the withdrawal of the incompetent evidence does or 
 does not cure the error must depend in a great measure upon 
 the character and influence of the evidence. There may be 
 cases where the character of the evidence is such that a mere 
 withdrawal without specific instructions or directions is sufficient 
 to heal the error, but in many cases the withdrawal should be 
 accompanied by clear and explicit instructions to disregard the 
 evidence, entirely and absolutely. A party who duly and sea- 
 sonably requests it is, as we believe, entitled to have the jury 
 specifically instructed to disregard the incompetent evidence, 
 and a refusal to so instruct would be error although there may 
 be a formal withdrawal of the evidence. 1 We have indicated in 
 a former paragraph our opinion that there may be cases where 
 the evidence is so influential that its mischievous effect can not 
 be overcome by proving the same facts by legitimate evidence, 
 and wherever this clearly and fully appears the verdict ought 
 not to stand. 
 
 §701. Instructions to disregard Incompetent Evidence — An in- 
 struction to disregard evidence will, as a general rule, cure the 
 error committed by the court in admitting it. 2 The party 
 
 1 In the case of Roonev v. Milwaukee, tion of the court to the jury not to con- 
 etc, Co., 65 Wis. 397, 399, it was said: sider it. Pennsylvania Co. v. Roy, 102 
 "This court has frequently decided it U. S. 451. In the case at bar the court 
 would notreverse a judgment because ir- was silent as to the effect which should 
 relevant testimony was admitted on the be given the testimony ' but such silence 
 trial when it was apparent that such was by no means equivalent to a posi- 
 improper evidence had no influence tive direction to disregard it.' Castle- 
 upon the jury. Fowler v. Farmers, man v. Griffin, 13 Wis. 535, 539." 
 etc., Co., 21 Wis. 77; Noonan v. Ilsley, 2 State v. James (So. Car.), 12 S. E. 
 22 Wis. 27, 39; Hazelton v. Union Bank, Rep. 657; Pireaux v. Simon, 79 Wis. 392, 
 32 Wis. 34. But where there is reason 4S N.W. Rep. 674; Wishmiert;. Behym- 
 to suppose that the rigbts of a party er, 30 Ind. 102; Zehner v. Kepler, 16 
 were prejudiced by the admission of the Ind. 290; Gebhart v. Burkett, 57 Ind. 
 improper testimony, tli.' judgmentwill 378; Moore v. Shields, 121 Ind. 267; 
 be reversed on that ground. State Bank Cadman v. Markle, 76 Mich. 448; Dil- 
 v. Dutton, 11 Wis. 371; Remington v. lingham v. Russell, 73 Tex. 47; Evans- 
 Bailey, 13 Wis. 332. It has been held ville, etc.. Co. v. Montgomery, 85 Ind. 
 that the error of admitting such testi- 494; Law K r r . NKPheeters, 73 Ind. 577; 
 mony was cured by a subsequent direc- Blizzard v. Applegate, 77 Ind. 516, 527;
 
 CURING ERROR. 
 
 659 
 
 against whom such evidence is admitted has a right to ask that 
 the instructions shall be clear and explicit. 1 If a party desires 
 an express and explicit direction to disregard evidence, he 
 should appropriately and seasonably request the proper direc- 
 tion or instruction, for if there is a withdrawal and no proper 
 request, the acquiesence of the party will, as a rule, be held to 
 waive more specific instructions or directions. 2 
 
 § 702. Exceptional Cases— We fully recognize the doctrine 
 that the presumption is that jurymen obey the instructions of 
 
 Blake v. Broughton, 107 N. C. 220, 12 
 S. E. Rep. 127; Mitts v. McMorran, 85 
 M Kb. 94, 4S N. W. Rep. 288; Alabama, 
 etc., Co. v. Frazier (Ala.), 9 So. Rep. 
 303; Taylor v. Wootan, 1 Ind. App. 
 iSS, 192, 27 N. E. Rep. 502; Blaisdell v. 
 Scally, S4 Mich. 149, 47 N. W. Rep. 
 1585. In the case of Pennsylvania 
 Co. v. Roy, 102 U. S. 451, the court 
 said, in answer to the argument of 
 counsel: "To this position we can not 
 assent, although we are referred to some 
 adjudged cases which seem to announce 
 the broad proposition that an error in 
 the admission of evidence can not be 
 afterwards corrected by instructions to 
 the jury, so as to cancel the exception 
 taken to its admission. But such a 
 rule would be exceedingly inconvenient 
 in practice, and would often seriously 
 obstruct the course of business in the 
 courts. It can not be sustained upon 
 principle, or by sound reason, and is 
 against the great weight of author- 
 ity. The charge from the court that 
 the jury should not consider the evi- 
 dence which had been improperly ad- 
 mitted was equivalent to striking it out 
 of the case. The exception to its ad- 
 mission fell when the error was subse- 
 quently corrected by instructions too 
 clear and positive to be misunderstood 
 by the jury. The presumption should 
 not be indulged that the jury were too 
 ignorant to comprehend, or were too 
 
 unmindful of their duty to respect, in- 
 structions as to matters peculiarly with- 
 in the province of the court to deter- 
 mine. It should rather be, so far as 
 this court is concerned, that the jury 
 were influenced in their verdict only by 
 legal evidence. Any other rule would 
 make it necessary in every trial, where 
 an error in the admission of proof is 
 committed, of which error the court be- 
 comes aware before the final submission 
 of the case to the jury, to suspend the 
 trial, discharge the jury and commence 
 anew. A rule of practice leading to 
 such results can not meet with ap- 
 proval." 
 
 1 Glenn v. Glore, 42 Ind. 60; Bradley 
 v. Cramer, 66 Wis. 297, 2S N. W. Rep. 
 372; Rooney v . Milwaukee, etc., Co., 65 
 Wis. 397; People v. Wallace, 89 Cal. 
 t 58, 26 Pac. Rep. 650. 
 
 2 It was said by the court in Moore 
 v. Shields, 121 Ind. 267, 271, that : "It 
 is quite true that the instruction, so far 
 as the evidence admitted was con- 
 cerned, was not as direct as it might 
 have been, but the court undertook to 
 correct the error by an instruction. As 
 no more explicit instruction was asked 
 on the appellant's behalf, it must have 
 been deemed satisfactory at the time. 
 Having neglected to ask that the jury 
 be more explicitly instructed then, it 
 is too late to complain now for the first 
 time. Gebhart v. Burkett, 57 Ind. 37S."
 
 660 ERROR IN JUDICIAL PROCEEDINGS. 
 
 the court, and we quite as fully recognize the general rule that 
 incompetent evidence may be so effectively withdrawn by in- 
 structions as to heal the error committed in admitting it. But 
 while fully recognizing the validity and soundness of these 
 general rules we, nevertheless, believe that exceptions exist. 
 The rules are general, not universal. Extreme cases may arise 
 which must be regarded as exceptions or else injustice be done. 
 It does not follow that because exceptions exist a rule is not 
 general. Considerations of consistency and expediency are 
 influential, but where substantive rights are involved, such con- 
 siderations must yield. If, therefore, the case is one in which 
 it clearly appears that an instruction did not remove the effect 
 of powerful evidence, the case must, as we believe, be regarded 
 as an exception to the general rule. 1 It is no doubt incumbent 
 upon a party in a case where the proper instruction to disregard 
 illegal evidence has been given to make it clearly and strongly 
 appear that his case constitutes an exception to the general 
 rule, and this he can not do without making it manifest that the 
 jury did not yield to the instructions of the court. 
 
 § 703. Effect of Sustaining a Motion to strike out Incompetent 
 
 Testimony — It is obvious that where a party moves to strike out 
 incompetent testimony given against him and the court sustains 
 his motion, the error in admitting the evidence is cured and the 
 objections taken to its admission waived. Such a case is quite 
 different from one in which the court of its own motion, or upon 
 the motion of the adverse party withdraws the evidence or in- 
 structs the jury to disregard it, for in the former case the party 
 elects to have the evidence struck out, and, by his election, vol- 
 untarily abandons positions previously taken. 2 In the one case 
 
 ' The authorities elsewhere cited sup- firmed that they are broken byexcept- 
 
 port our conclusion. A fife, § 698. ions. 
 
 There is no conflict between our con- 2 This doctrine is well illustrated by 
 
 elusion and the cases cited in the note to the case of Vannoy v. Klein, ijj Ind. 
 
 the preceding paragraph, for they as- 416. In that case the party requested 
 
 sert what is conceded to be the general the court to instruct the jury as to the 
 
 rule, while we here assert nothing more effect of the evidence, and his instruc- 
 
 than that there may be particular cases tion was given. It was held that by 
 
 with such well defined and marked pe- asking the instruction he waived objec- 
 
 culiarities as to constitute exceptions, tions interposed to the admission as 
 
 There are very few general rules, in- well as his motion to strike out. 
 deed, of which it may not be truly af-
 
 CURING ERROR. QQ\ 
 
 the party by his own voluntary act waives all former objections 
 and secures what he elects to consider adequate relief, while in 
 the other he does not abandon objections previously made. 1 
 
 § 704. When a Party can not withdraw Evidence over the Objec- 
 tion of his Adversary — Where an objection is interposed to evi- 
 dence the party by whom it was introduced is, as a general 
 rule, at liberty to withdraw it, and error can not be successfully 
 alleged on the ruling permitting it to be withdrawn, 2 although, 
 as we have elsewhere said, the withdrawal does not invariably 
 cure the error committed in suffering it to go to the jury. In 
 such cases, the error, if there is error, grows out of the harm 
 done in allowing the jury to hear the evidence, not in permitting 
 it to be withdrawn. Where the evidence is favorable to the 
 opposite party and is not utterly incompetent, the general rule 
 is that the party introducing it can not at his pleasure withdraw 
 it from the jury. 3 
 
 § 705. Curing Errors in Instructions — The general rule is that 
 the court may cure errors in its instructions by withdrawing, 
 explaining or correcting them. Where a material instruction 
 is given that is erroneous it should be effectively withdrawn. 4 
 
 1 Price v. Brown, 98 N. Y. 38S. i Kirland v. State, 43 Ind. 146, S. C. 
 
 2 Boyd v. State, 17 Ga. 194; Daven- 13 Am. Rep. 3S6; McCole v. Loehr, 79 
 port v. Harris, 27 Ga. 6S; Providence, Ind. 430; Bradley v. State, 31 Ind. 492, 
 etc., Co. v. Martin, 32 Md. 310, 316; 503; Clem v. State, 31 Ind. 4S0; Uhl v. 
 Boone v. Purnell, 28 Md. 607, 630. Bingaman, 78 Ind. 365; Kingen v. State, 
 
 3 Decker v. Bryant, 7 Barb. 1S2, 189; 45 Ind 51S; Toledo, etc., Co. v. Shuck- 
 Clinton v. Rowland, 24 Barb. 634. man, 50 Ind. 42; Binns v. State, 66 Ind. 
 The reason for this rule is obvious. 428; Lower v. Franks, 115 Ind. 334, 340; 
 The party who brings out the evidence Goodsell v. Taylor, 41 Minn. 207. 42 \. 
 can not retain what favors him and re- W. Rep.S73; People v. Terrell, 5S I Inn. 
 ject that which benefits his adversary. 602; Baker v. Ashe (Texas), 16 S. W. 
 Nor can a party be allowed to take the Rep. 36; People v. Chew Sing Wing, 88 
 chance of eliciting evidence and if it Ca'. 26S, 25 Pac. Rep. 1099; Jones v. Tal- 
 benefits him keep it before the jury, bot, 4 Mo. 279, 285; Bank of the Me- 
 but if it harms him take it from them, tropolis V. New England Bank, 6 How. 
 When evidence is introduced it is. as a (U. S.). 212; Chicago, etc., Co. v. Wil- 
 general rule, available to the party ben- cox (111.), 24 N. E. Rep. 419, S. C. S 
 efited whether it be the one who intro- Law. Rep. Anno. 494; Billups t'.D 
 duced it or the adverse party. Some 3S Mo. App. 367; Fink v. Algermissen, 
 of the courts say: " Evidence, when in, 25 Mo. App. 186; Arcia v. State, 28 Tex. 
 is common property." App. [98, 12 S. W. Rep. 599. It was
 
 
 ERROR IX fUDICIAL PROCEEDINGS. 
 
 An error in giving an erroneous instruction is not cured by 
 merely giving another contradicting it. The court can not 
 without fatal error give contradictory instructions to the jury, 
 since that would impose upon the jury the duty of determining 
 the law as well as the facts. The court may refuse to give an 
 instruction, although it has indicated to the parties that it would 
 he given. 1 
 
 § 706. Refusal of Instructions— Where a party appropriately 
 asks a special instruction an error in refusing it is not always 
 cured by giving a general charge upon the subject. A party 
 has a right to have a specific instruction applying the law to 
 the facts of the particular case as developed by the evidence. 2 
 It is the object of a charge to the jury to present the law of the 
 particular case, not to inform the jury upon mere abstract gen- 
 eral rules of law. It is obvious that the general statement of 
 an abstract legal rule in many cases can be of no substantial 
 benefit to a party, and yet a well drawn instruction appropriately 
 directing the jury as to the law of the case before them might 
 secure him the verdict. It is, however, not error to state cor- 
 rectly abstract propositions of law ; the error is in refusing a 
 proper and seasonable request to give a special instruction ap- 
 plicable to the facts of the particular case. 3 
 
 held in the case of McCrory v. Ander- 
 son, 103 Ind. 12, that where the court 
 gives one series of instructions and sub- 
 sequently gives another and different 
 series, the errors in the first series are 
 cured. It may well be doubted whether 
 tin- doctrine of this case can be sus- 
 tained. It is clear, at all events, that 
 the error in such a case can not be cured 
 by giving a second series of instruc- 
 tions, unless that series is so full and 
 explicit as to effectually impress the 
 minds of the jurors that the law as de- 
 clared in the last series is that by which 
 they must be governed. Improper re- 
 ks made in ruling upon the admis- 
 sion of evidence ma} he withdrawn by 
 a strong ami unequivocal instruction- 
 Reinhold v. State. 30 N. E. Rep. . 
 
 1 City of Logansport V. Dykeman, 
 116 Ind. 15; Louisville, etc., Co. v. Hub- 
 bard, 116 Ind. 193. The withdrawal of 
 an instruction by the party by whom it 
 was asked disposes of the exceptions of 
 the adverse party. Haines v. Mc- 
 Laughlin. 135 U. S. 584. 
 
 8 Hipes v. State, 73 Ind. 39, 41; Car- 
 penter v . State, 43 Ind. 371, 373; Win- 
 chester v. King, 46 Mich. 102; Mc- 
 Cormick v. Smith, 127 Ind. 230. 26 N. 
 E. Rep. 825; Morris :•. Piatt, 32 Conn. 
 75; Little Miami, etc., Co. ". Wetmore, 
 19 Ohio St. no; Thompson v. Shan- 
 non, 9 Texas, 536. 
 
 3 Ante, § 647. "Incomplete instruc- 
 tions." Mutual Life Insurance Co. V. 
 Snyder, 93 U. S. 393; Hall v. Weare, 
 92 U. S. 72S; Tomlinson v. Wallace. 16
 
 CURING KRROR. 603 
 
 § 707. Subsequently Admitting Evidence once Excluded— It is 
 
 barely necessary to say that if evidence is wrongfully excluded 
 the error is completely cured by subsequently admitting the 
 same evidence. The cases affirming this doctrine are very 
 numerous. We cite some of them for the purpose of showing 
 the application of the rule to particular instances, and not for 
 the purpose of supporting the self-evident conclusion stated. 1 
 But where evidence of a high degree of probative force is er- 
 roneously excluded, the error is not cured by admitting evi- 
 dence of the same facts by evidence of less force. Thus, if 
 record evidence of a conclusive character is erroneously ex- 
 cluded, the admission of oral testimony will not cure the error. 
 So, it has been held, the error in excluding the testimony of a 
 disinterested witness is not cured by subsequently admitting the 
 testimony of an interested witness. 2 
 
 § 708. Miscellaneous Instances — If the court by a subsequent 
 ruling grants relief previously denied, the general rule is that 
 the error in the original decision or ruling is cured. Thus, if 
 a continuance is erroneously refused, the error is cured if a 
 continuance is subsequently granted. 3 So, if the court wrong- 
 fully refuses to direct a change of venue, but subsequently 
 grants it, the error in the first ruling is healed. Again, if a 
 court refuses to order the examination of a party, but after- 
 wards orders the examination, the second order cures the er- 
 ror in the first. As another illustration we may take a case 
 where the court erroneously directs a general and special ver- 
 dict where only a special verdict ought to have been directed, 
 the error in the direction is healed if the general verdict is 
 disregarded and the judgment placed entirely on the special 
 verdict. 4 
 
 Wis. 224; State v. Straw, 33 Me. 554; etc.. Co. (Iowa), 47 N. W. Rep. 986; 
 
 Chamberlain v. Porter, 9 Minn. 260; Palmer v. Conant, 5S Hun. 333; Hope 
 
 Davis v. Elliott, 15 Gray, 90; Bain v. v. Blair, 105 Mo. 85, 16 S. W. Rep. 595. 
 
 Doran, 54 Pa. St. 124; Moore v. Ross, 2 Packard v. Backus, 7S Wis. tS 
 
 11 N. H. 547; Barrett v. Delano (Me.), N. W. Rep. 1S3. 
 
 14 Atl. Rep. 288. 'Tillinghast v. Nourse, 14 Ga. 641; 
 
 1 Pennsylvania Co. v. Marion. 123 People v. Sackett, 14 Mich. 320; Mairs 
 
 Ind. 415; Real Del Monte, etc.. Co. V. V. Gallahue, 9 Gratt. 94. 
 
 Thompson. 22 Cal. 542. Ahell v. Cross, * Toler v. Keiher. Si Ind. 383; Louis- 
 
 17 Iowa, 171; Walker v. State. 91 Ala. ville, etc., Co. V. Balch, 105 Ind. 03. 
 76, 9 So. Rep. S7; Kelly v. Norwich,
 
 CHAPTER VIII. 
 
 PRESUMPTIONS 
 
 $ 709. 
 710. 
 
 711. 
 712. 
 
 713- 
 
 7«4- 
 
 7*5- 
 
 716. 
 717. 
 
 Resort to presumptions — What 
 presumption will be preferred. 
 
 Presumption in favor of the pro- 
 ceedings of the trial court. 
 
 Nature of the presumption. 
 
 Record susceptible of two con- 
 structions — That which sus- 
 tains the judgment will be 
 preferred. 
 
 Presumptions will not prevail 
 against the record. 
 
 Court and judge. 
 
 Jurisdiction of subject — Pre- 
 sumption of. 
 
 Exception to the general rule — 
 Judgment by default. 
 
 Presumption of jurisdiction is 
 not rebutted by the silence or 
 incompleteness of the record. 
 
 § 71S. Judgment of trial court is pre- 
 sumed to be properly sup- 
 ported. 
 
 Pleadings — Presumption that 
 judgment is within and 
 founded on. 
 
 Presumption that rulings on 
 pleadings were correct. 
 
 Rulings on the evidence — Pre- 
 sumptions respecting. 
 
 Instructions — Presumptions 
 concerning. 
 
 Juries and jurors — Presump- 
 tions concerning. 
 
 Verdicts — Presumptions in aid 
 of. 
 
 Miscellaneous instances. 
 
 719. 
 
 720. 
 
 721. 
 
 722. 
 
 723- 
 724. 
 
 7 2 5- 
 
 § 709. Resort to Presumptions— What Presumption will be Pre- 
 ferred — If the appellate tribunal is compelled to resort to pre- 
 sumptions it will choose that which sustains the proceedings of 
 the trial court and reject that which would overthrow them. 1 
 If the condition of the record is such as to require the higher 
 court to act upon a presumption it will, without hesitation, 
 adopt the presumption that upholds the judgment from which 
 the appeal is prosecuted. It has been held, upon this general 
 principle, that it is not enough to show that " error may have 
 been committed," but it must be shown that error was actually 
 committed. 2 It is possible that the statement of the rule in the 
 
 •Carman v. Pultz, 21 N. Y. 547; 604. In the case cited it was said: "It 
 
 Smith v. Newland, 9 Hun. 553, 554; is incumbent upon a party seeking the 
 
 Phillip v. Gallant, 62 N. Y. 256, 265. reversal of a judgment or order to show 
 
 s Tracev v. Altmyer, 46 N. Y. 59S, that an error was committed to his 
 
 (664)
 
 PRESUMPTIONS. 665 
 
 case referred to may be somewhat stronger than authority war- 
 rants, but it is, at all events, not far out of the true line, and 
 serves to show the strength of the presumption that judicial tri- 
 bunals commit no errors. 
 
 § 710. Presumption in favor of the Proceedings of the Trial Court— 
 The rule that all reasonable presumptions and intendments will 
 be made in favor of the rulings of the trial court is one of the 
 best settled and most frequently applied rules in appellate pro- 
 cedure. 1 The rule rests on a firm foundation. It is supported 
 by the elementary principle that official acts are presumed to 
 be rightfully performed. But when it is brought to mind that 
 a court acts impartially, upon full information and with calm 
 deliberation, the foundation of the rule stated will at once be 
 perceived to be broader and stronger than that which under- 
 lies the rule supporting the acts of ministerial or executive of- 
 ficers. 
 
 § 711. Nature of the Presumption— The presumption while a 
 strong one is not one of a conclusive character. It will give 
 way to a clear exhibition of countervailing matters and may 
 always be rebutted. The presumption which the law creates 
 in favor of the rulings of a trial court belongs to the class gen- 
 erally denominated "disputable" or "rebuttable" presump- 
 tions, but is one among the strongest of its class. Strong as it 
 
 prejudice. It is not sufficient to show Daggy, 13 Ind. 383; Koile v. Elli-. 16 
 
 that it may have been committed. The Ind. 301; State v. Smock, 20 Ind 1S4; 
 
 latter will not overcome the presump- Estep v. Larsh, 21 Ind. 1S3; Round v. 
 
 tion that all things have been transacted State. 14 Ind. 493; Beeler v. Hantsch, 
 
 correctly, until the contrary appears." 5 Blackf. 594; Reddington v. Hamilton, 
 
 1 Cases almost past numbering de- 8 Blackf. 62; Maxam v. Wood, 4 Blackf. 
 
 clare and enforce the general rule. Of 297; Bishop v. Village of Goshen. 120 
 
 the vast number of cases upon the gen- N. Y. 337, 24 N. E. Rep. 720; Walters 
 
 eral subject we cite here a very small w.Tefft, 57 Mich. 390, 24N.W.Rep. 117; 
 
 number. Prilliman v. Mendenhall, 120 Sidney, etc., Co. v. Warsaw School Di»- 
 
 Ind. 279, 22 N. E. Rep. 247; Rapp v. trict, 130 Pa. St. 76, iS Atl. Rep. 604; 
 
 Kester, 125 Ind. 79; Welsh v. State, Morisey v. Swinson, 104 N. C. 555, to 
 
 126 Ind. 71: Burrell v. State, 2S N. E. S. E. Rep. 754: Chestnutt v. Pollard, 77 
 
 Rep. 699; Forelander v. Hicks, 6 Ind. Texas, 86, 13 S. W. Rep. 852; Kennedy 
 
 44S; Amory v. Reilly, 9 Ind. 490; Mil- v. McNichols, 29 Mo. App. 11. 
 likin v. Osborne, 12 Ind. 480; Black v.
 
 QQQ ERROR IN JUDICIAL PROCEEDINGS. 
 
 is. it will yield to the legitimate recitals of the record, and it 
 can not be invoked by a party in opposition to his own admis- 
 sions or averments. 1 The presumption of which we are speak- 
 ing is of such strength as to cast upon the party who assails the 
 rulings of the trial court the burden of making it clearly appear 
 that the rulings were wrong. He can not, with hope of suc- 
 cess, ask the appellate tribunal to overthrow the rulings of the 
 trial court upon vague inferences or remote possibilities. He 
 will fail unless he overcomes the presumption " bv making error 
 manifest." 2 
 
 § 712. Record susceptible of two Contractions — That which sus- 
 tains the Judgment will be Preferred — The strength and scope of 
 the presumption in favor of the proceedings of the trial court 
 are illustrated by the cases which hold that where a record is 
 susceptible of two constructions that construction which will 
 sustain the judgment will be adopted. 3 It would, however, be 
 pressing the doctrine beyond just limits to carry it so far as to 
 hold that recitals or statements of the record will be disregarded, 
 or that a strained and unnatural construction will be adopted 
 for the sake of saving the judgment. We suppose that in no 
 event will the appellate tribunal disregard the unequivocal 
 statements or recitals of the record, or indulge in violent and 
 strained intendments. Where the record is contradictor}' the 
 presumption is that the part is true which shows obedience to 
 the law. 4 Upon this principle it is held that where the record 
 
 1 Lucketts v. Townsend, 3 Tex. 119, 24 Pac. Rep. 47;;; Wynn v. Simons, 33 
 S. C. 49 Am. Dec. 723; Gates v. An- Ala. 272; Whipley r. Flower, 6 Cal. 
 drews, 37 N. Y. 657, S. C. 97 Am. Dec. 630; Sherman v. Palmer, 37 Mich. 
 764; McCaskey v. Graft", 23 Pa. St. 321, 509. See, upon the general subject, 
 S. C. 62 Am. Dec. 336. Lowen v. Crossman, 8 la. 325; Worth- 
 
 2 People v. Board, 23 111. App. 386; ington v. Olden, 31 la. 419; David v. 
 O'Callahanz'. Bode, 84 Cal. 4S9, 24 Pac. Leslie, 14 la. 84; Matter of Celina, 7 
 Rep. 269; Piatt v. Continental Ins. Co., La. Ann. 162; Keith v. Clark, 97 U. S. 
 62 \"t. 166. 19 Atl. Rep. 637; Powell v. 4^4; Parker :•. Medsker, 80 Ind. 155; 
 Ashlock, 21 111. App. 176; Stevenson v. Graves v. Duckwall, 103 Ind. 560; Bin- 
 Sherwood, 22 111. 238, S. C. 74 Am. Dec. ford v. Miner, 101 Ind. 147; Railsback 
 140; Parmelee v. Fischer, 22 111. 212, v. Walke, 81 Ind. 409; Leary v. New, 
 S. C. 74 Am. Dec. 13S; Den v. Gra- 90 Ind. 502; La Follette v. Higgins, 109 
 ham, 1 Dev. &. Batt. 76, S. C. 27 Am. Ind. 241. 
 
 Dec. 226; Beach v. Packard, 10 Vt. 96, * Larillian v. Lane, 8 Ark. 372; Foote 
 
 S. C. 33 Am. Dec. 185. v. Lawrence, 1 Stew. (Ala.) 483. 
 
 1 Denver, etc.. Co, V. Cowgill (Kan.),
 
 PRESUMPTIONS. 667 
 
 contains two verdicts, the one good, the other bad. the pre- 
 sumption is that the good was acted upon by the trial court. 1 
 The same general principle governs the case in which it was 
 held that where a finding is fairly susceptible of two construc- 
 tions the construction which will uphold the judgment will be 
 adopted. 2 Our decisions which assert that where answers to 
 special interrogatories returned by a jury are contradictory the 
 general verdict will be sustained tacitly affirm the doctrine here 
 stated, although different reasons are assigned by the decisions 
 for the conclusion reached. 3 
 
 § 713. Presumptions will not prevail against the Record — The 
 
 recitals and statements of the record are stronger than the pre- 
 sumption which exists in favor of the proceedings of the trial 
 court. Hence it is always implied that to the legitimate state- 
 ments of the record the presumption will yield wherever there 
 is conflict. Nor is it necessary that the record should in terms, 
 or even by direct implication, show that the presumption is un- 
 founded, for if it affirmatively appears that there is error the 
 presumption will give way. If the matters of record are such 
 as clearly authorize the inference that there was probably prej- 
 udicial error the presumption loses all force. 4 The record is, 
 
 1 Smith v. Camp, S4 Ga. 117, 10 S. E. it appears from the return of the officer 
 
 Rep. 539. or the proof of service contained in the 
 
 * Schwab 7'. Charles Parker Co., 55 record that the summons was served at 
 
 Conn. 370. a particular place, and there is no aver- 
 
 3 \Vabash Ry. Co. v. Savage, nolnd. ment of any other service, it will not 
 156; Hereth v. Hereth, 100 Ind. 35. be presumed that the service was made 
 
 4 In the case of Galpin v. Page, 18 at another and different place, or if it 
 Wall. 350, 364, the Supreme Court of the appears in like manner that the service 
 United States, speaking of the class of was made upon a person other than the 
 presumptions we have under discussion, defendant it will not be presumed in 
 said: "They have no place for consid- the silence of the record that it was 
 eration when the evidence is disclosed made upon the defendant also." While 
 or the averment is made. When, there- the court was speaking with special 
 fore, the record states the evidence or reference to presumptions of jurisdic- 
 makes the averments with reference to tion what it said applies to presump- 
 a jurisdictional fact, it will be under- tions such as we are dealing with gen- 
 stood to speak the truth on that point, erallv. Upon the subject of the effect 
 and it will not be presumed that there of record recitals, see Bokerv. Chapline, 
 wa6 other or different evidence respect- 12 Iowa, 204; Messenger v. Kintner, 1 
 ing the facts or thai the fad was other- Binn.97; Blanton v. Carroll, 86 Va. 539, 
 wise than as averred, [f, for example, IO S. E. Rep. 329; Penobscot, etc., Co. v.
 
 668 ERROR IN JUDICIAL PROCEEDINGS. 
 
 however, to be taken as an entirety and the questions decided 
 upon it as a whole. 1 Upon the principle stated in a former par- 
 agraph it is held that where the recitals of the record are con- 
 tradictory the court will accept as correct the recital which sus- 
 tains the proceedings of the court of original jurisdiction. 2 The 
 conclusion that the recital which supports the proceedings of 
 the trial court will be accepted as the controlling one is required 
 by considerations of harmony and consistency, and it is neces- 
 sary in order to give just effect to the general presumption that 
 judicial tribunals do no wrong. Any other conclusion would 
 clash with the settled and salutary principle that the appellant 
 must bring to the appellate tribunal such a record as makes 
 error manifest. 
 
 § 714. Court and Judge — The presumption is that the courr 
 was duly organized unless the record discloses facts showing' 
 that it was not so organized. The authority of the person who 
 assumes to discharge the functions of a judge is presumed to 
 be lawfuh This presumption applies to a special judge unless 
 the record shows a well founded objection to his capacity to act 
 as judge. 3 The later cases declare the doctrine we have stated 
 and they rest on sound principle, since it would be unreason- 
 able to assume that parties quietly sat by and permitted their 
 cause to be tried by an intruder or usurper. This doctrine can 
 not, of course, fully prevail where there is no law authorizing the 
 appointment of judges -pro tern-pore, nor can it be carried so far 
 as to authorize a special judge to appoint another special judge. 4 
 
 Weeks, 52 Me. 456; Dillard v. Central, Schlunger v. State, 113 Ind. 295; Board 
 
 etc., Co., 82 Va. 734, 1 S. E. Rep. 124; v. Courtney, 105 Ind. 311; Rubush v. 
 
 Pollard ^.Wegener, 13 Wis. 569; Hahn State, 112 Ind. 107; State v. Murdock, 
 
 v. Kelly, 34 Cal. 391, S. S. 94 Am. Dec. 86 Ind. [24; Powell v. Powell, 104 Ind. 
 
 742. iS, 29; Smurr v. State, 105 Ind. 125, 133; 
 
 1 Hering©. Chambers, 103 Pa. St. 172, Ilenning v. State. 106 Ind. 386, 395, S. 
 175: Ely v. Tallman, 14 Wis. 28; Hahn C. 55 Am. Rep. 756; State v. Baker, 63 
 v. Kelly, 34 Cal. 391, S. C.94 Am. Dec. N. C. 276; Hess v. Dean, 66 Texas, 663; 
 7(2. People v. Woodside, 72 111. 407; Em- 
 
 2 Conrad v. Baldwin, 3 Iowa, 207. pire, etc., Co. v. Engley, 14 Col. 2S9, 23. 
 
 3 Bowen v. Swander, 121 Ind. 164, 22 Pac. Rep. 452; Reed v. Bagley, 24 Neb. 
 N. E. Rep. 725; Littleton v. Smith, 119 332;'State v. Hosmer, S5 Mo. 553; Ilar- 
 Ind. 230; Cargar v. Fee, 119 [nd. 536; per v. Jacobs, 51 Mo. 296. 
 Greenwood v. State, 116 Ind. 485; * Cargar v. Fee, 119 Ind. 536.
 
 PRESUMPTIONS. 
 
 o«;:» 
 
 The appellate tribunal will presume that the courts were held 
 at the proper time and place, and that all was done that the 
 law requires to make the holding of the court regular and 
 legal. 1 Where a person assumes to sign a bill of exceptions 
 as judge it will be presumed that he had authority to do so. 2 
 Records are presumed to be duly signed by the qualified judge. 3 
 But terms of court must be held at the time specified by law, 
 and where the objection is appropriately and seasonably made 
 the objection may prevail if the record properly shows that it 
 is well founded. 1 Where a change of judge takes place the 
 presumption is that the change was made upon sufficient rea- 
 sons and in conformity to law. 5 Where the record is silent the 
 presumption is that a judge who declined to try a case had 
 legal reasons for his action. 6 That a special judge was prop- 
 erly appointed will be presumed. 7 Where a second special 
 judge appears and hears the case without objection, the pre- 
 sumption is that his appointment was regular and that legal 
 cause existed for his appointment. 8 But where the record dis- 
 
 1 Wood V. Franklin, 97 Ind. 117; 
 Hanes v. Worthington, 14 Ind. 320; 
 Carlisle v. Gaar, iS Ind. 177; Shirts v. 
 Irons, 2S Ind. 45S; Shircliff v. State. 96 
 Ind. 369; Smurr v. State, 105 Ind. 125. 
 133; Cass v. Krimbill, 39 Ind. 357; 
 Porter V. State. 2 Ind. 435; Myers v. 
 Mitchell (S. Dak.), 46 X. W. Rep. 245; 
 Cook v. Skelton, 20 111. 107. 
 
 2 Bowen v. Preston, 4S Ind. 367. 
 
 3 Indiana, etc., Co. v. Bird, 116 Ind. 
 217, iS N. E. Rep. 837. See McCray 
 v. Humes, 116 Ind. 103, iS N. E. Rep. 
 500. 
 
 4 Batten v. State, So Ind. 394; Smurr 
 v. State, 105 Ind. 125, [29; McCool v. 
 State, 7 Ind. 37S; Smithson v. Dillon, 
 16 Ind. 169; Newman v. Hammond, 46 
 Ind. 119; Ferger v. Wesler, 35 Ind. 53. 
 But the objection must be sustained by 
 the record, or the general presumption 
 will prevail. 
 
 6 People V. Mellon. 40 Cal 648. The 
 authority of the special judge continues 
 until the case he is called to try, with 
 
 all its incidents, is fully disposed of. 
 Staser v. Hogan. 120 Ind. 207; Shugart 
 v. Miles, 125 Ind. 445; Naffzieger :•• 
 Reed. 9S M0.S7, 11 S.W. Rep. 315; Ex 
 part,- Clay, 98 Mo. 578, 11 S. W. Rep. 
 99S; Nebraska, etc., Co. v. Maxon, 23 
 Neb. 224. 36 N.W. Rep. 492; Harris 
 Musgrave, 72 Tex. iS, 9 S. W. Rep. 90; 
 Dawson v. Dawson, 29 Mo. App. 521. 
 See. generally, upon the subject of 
 special or pro tempore judges. Fire- 
 stone v. Hershberger, 121 Ind. 201.22 
 N. E. Rep. 985; Stary v. Winning, 7 
 Ind. 111; State v. Dufour, 63 Ind. 
 Feaster v. Woodfill, 23 Ind. 493; Zonker 
 »..Cowan, 84 [nd.395; Perkins v. I lay- 
 ward, 1 24 Ind. 445. 
 
 6 Leonard v. Blair, 59 Ind. 510. 
 
 7 Board V. Courtney. 105 Ind. 311; 
 Schlunger v. State. 113 Ind. 295. 
 
 8 Fassinow v. State. 89 Ind. 235, 2 {6, 
 citing Ilutts v. Ilutts, 51 Ind. 581; 
 Glenn v. State, 46 Ind. j<>s ; Singleton 
 v. Pidgeon, 21 Ind. 1 iS- Cincinnati, 
 etc., Co. v. Rowe, 17 Ind. 56S.
 
 670 ERROR IN JUDICIAL PROCEEDINGS. 
 
 closes facts showing the invalidity of the appointment of a 
 judge pro temfore the presumption is effectually destroyed. 1 
 
 § 715. Jurisdiction of Subject — Presumption of — A case is pre- 
 sumed to be within the jurisdiction of a court of superior juris- 
 diction unless the contrary appears. 2 This doctrine is often ex- 
 pressed in the statement that " nothing shall be intended to be 
 out of the jurisdiction of a superior court but that which spe- 
 cially appears to be so." 3 But the rule, general as it is, has its 
 limitations. Where the whole of a general subject is by law- 
 placed within the exclusive jurisdiction of a designated class 
 of tribunals, no presumption can arise in favor of the authority 
 over that subject of any tribunal not belonging to the class to 
 which jurisdiction of the general subject is assigned by law. 
 Thus, where jurisdiction of actions involving title to real estate 
 is exclusively lodged in one class of tribunals, jurisdiction can 
 not be exercised over that subject by a tribunal not belonging 
 to the class invested with jurisdiction. 1 Where the record 
 shows affirmatively and clearly that the case belongs to a class 
 over which the court has no jurisdiction, the presumption must 
 yield. But jurisdiction of the subject means much more than 
 
 1 Haverlv, etc., Co. v. Howcutt, 6 s Gossett v. Howard, io O^ B. 359; 
 
 Col. 1574. Guilford v. Love, 49 Texas, 715; Goar 
 
 * Board v . Markle, 46 Ind. 96; Markel v. Maranda, 57 Ind. 339; Holmes v. 
 v. Evans, 47 Ind. 326; State v. Smock, Campbell, 12 Minn. 221; Spaulding v. 
 20 Ind. 1S4; Pate v. Tait, 72 Ind. 450; Baldwin, 31 Ind. 376; Butcher v. Bank, 
 Houk v. Barthold, 73 Ind. 21; Ragan 2 Kan. 70; Reynolds v. Stansbury, 20 
 v. Harms. 10 Ind. 348; Hyatt v. Coch- Ohio, 244; Hahn v. Kelly, 34 Cal. 391; 
 ran. 69 Ind. 436; Dean v. Miller, 66 Ind. Wells v. Waterhouse, 22 Me. 131; Ely 
 440; Rodman v. Rodman, 54 Ind. 444; v. Tallman, 14 Wis. 28; Potter v. Mer- 
 Dequindre v. Williams, 31 Ind. 444; chants Bank, 28 N. Y. 641, 656. Power 
 Kinnaman v. Kinnaman, 71 Ind. 417; to decide carries with it authority to 
 Chapel! v. Shuee, 117 Ind. 481, 485; decide right as well as wrong. Snelson 
 Brown v. Anderson, 90 Ind. 93; Brown- v. State, 16 Ind. 29; Voorhees v. Jack- 
 field v. Weicht, 9 Ind. 394; Wilcox v. son, 10 Peters, 449; Elliott v. Piersol, 1 
 Moudy, 82 Ind. 219; Godfrey v. God- Peters, 328,340; Ely v. Board, 112 Ind. 
 frey, 17 Ind. 6; Board -v. Legg, 115 Ind. 361, 36S; Million v. Board, 89 Ind. 5; 
 544; Board v. Arnett, 116 Ind. 438,444; Young v. Sellers, 106 Ind. 101. 
 Bass Foundry Co. v. Board, 115 Ind. * Livesey v. Livesey, 30 Ind. 39S; 
 234; Shewalter v. Bergman, 123 Ind. Wolcot v. Wigton, 7 Ind. 44; Carpen- 
 155. ter v. Yanscotten, 20 Ind. 50.
 
 PRESUMPTIONS, 071 
 
 jurisdiction of the particular case. 1 It may be shown by plea 
 that there is no jurisdiction of the particular case, and thus the 
 presumption will be rebutted in the particular instance, but 
 where there is jurisdiction of the general subject, the presump- 
 tion, in the absence of a countervailing showing, averment, or 
 recital, is that jurisdiction exists in the particular instance. 
 Thus, the circuit court has jurisdiction of the general subject 
 of titles to land, but it may not have jurisdiction of the particu- 
 lar case for the reason that the land lies in another territorial 
 jurisdiction, but until it is shown that there is no jurisdiction in 
 the particular instance jurisdiction will be presumed. 
 
 § 716. Exception to the General Rule — Judgment by Default — 
 
 The general presumption in favor of jurisdiction does not ex- 
 tend to cases where there is no appearance and no process, or 
 no service, and judgment is rendered upon default. The case of 
 a judgment upon default rendered where there is no appear- 
 ance forms an important and well defined exception to the gen- 
 eral rule. 2 It is important, however, to bear in mind that there 
 is a wide and radical difference between cases where there is 
 an appearance but a subsequent default and cases where there 
 is no appearance and a judgment rendered by default, because 
 of a failure to obey some order or rule of court, or because of 
 a failure to appear at the trial. 3 The latter cases are, it is evi- 
 dent, within the general rule. 
 
 'Jackson v. Smith, 120 Ind. 520; 19 Ala. 104; Wellborn v. Sheppard, 5 
 
 Wolever v. State. 127 Ind. 306, 315; Ala. 674; Merritt v.White, 37 Miss. 438; 
 
 Yates v. Lansing, 5 Johns. 2S2. Glenn v. Shelburne, 29 Texas, 125; 
 
 i Ante, §§ 329 to 335, inclusive; Young Thigpen v. Mundine, 24 Texas. 2S2; 
 
 v. Dickey, 63 Ind. 31; Houk v. Barth- Abbe v. Marr, 14 Cal. 210; Barreon :• 
 
 old, 73 Ind. 21; Cole v. Allen, 51 Ind. Frink, 30 Cal. 486; Holleck v. Jauden, 
 
 122: New Albany, etc., Co. :•. Welsh, 34 Cal. 167; Bosch :•. Kassing, 64 la. 
 
 9 Ind. 479; Bryant V. Richardson, 126 312, 20 N. W. Rep. 354; Smith v. Ellen* 
 
 Ind. 145; Woolery v. Grayson, 1 10 Ind. dale Mill Co., 4 Ore. 70; Kitsmiller :. 
 
 149; Townsand v. Townsand, 21 111. Kitchen, 24 la. 163. 
 
 540; Bascom v. Young, 7 Mo. 1; John- 3 Langdon :•. Bullock, S Ind. 341; 
 
 son v. Dellridge, 35 Mich. 436; Duncan Archibald v. Lamb, 9 Ind. 544; Mc- 
 
 V. Gerdinc, 59 Mi>s. 550; State V. Bil- Kinney V. State, 101 Ind. 355; Lilly ~'. 
 
 lings, 23 La. Ann. 798; Wilkinson v. Dunn, 96 Ind. 220, 225. 
 Bayley, 71 Wis. 131; Amason v. Nash,
 
 672 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 717. Presumption of Jurisdiction is not Rebutted by the Silence 
 or Iucompleteness of the Record — It is an established general rule 
 that the presumption in favor of the jurisdiction of a superior 
 court is not impaired or destroyed by the failure of the record 
 to affirmatively show jurisdiction, but to the general rule there is 
 the well defined exception already stated. An incomplete or 
 silent record will not, as a general rule, authorize the inference 
 that jurisdiction did not exist. The defect in the record is 
 supplied by the presumption that the court did not usurp au- 
 thority nor wrongfully exercise jurisdiction. 1 It was held in 
 one case that where the papers were lost it would be presumed 
 that the case was one in which judgment by default was au- 
 thorized. 2 Incomplete and defective recitals indicating that 
 there was an appearance will sustain the presumption."' Where 
 the record refers to an agreement but does not set it out, the 
 presumption is that it authorized the decree. 4 Where the riling 
 of an affidavit is a prerequisite to jurisdiction the silence of 
 the record warrants the presumption that the affidavit was filed. 5 
 
 1 Nichols v. State, 127 Ind. 406, 413; s Crank v. Flowers, 4 Heisk. 629; 
 O'Brien v. State, 125 Ind. 38; Sims v. Welsh v. Childs, 17 Ohio St. 319. See, 
 Gay. 109 Ind. 501; Jackson v. State, generally, Sloan v. McKinstry, 18 Pa. 
 104 I ml. 516; Exchange Bank v. Ault, St. 120; Baldridge v. Penland, 6S Tex. 
 102 Ind. 322, 1 N. E. Rep. 562; Albert- 441, 4 S. W. Rep. 565; Credit Foncier 
 son v. State, 95 Ind. 370; Pickering v. v. Rogers, 10 Neb. 1S4. 4 N. W. Rep. 
 State, 106 Ind. 228; Cassady v. Miller, 1012; Woodhouse v. Fillbates, 77 \'a. 
 106 Ind. 69; Dvviggins v. Cook, 71 Ind. 317; Ray v. Rowley, 1 Hun. 614; 
 579; State V. Ennis, 74 Ind. 17; lies v. Sheer v. Bank of Pittsburgh, 16 How. 
 Watson, 76 Ind. 359; Crane v. Kim- (U.S.) 571; Morrow v. Weed, 4 la. 77. 
 mer, 77 Ind. 215, 219; Waltz v. Borro- 4 Collins v- Loyal, 56 Ala. 403; Hearn 
 way, 25 Ind. 380; Dequindre V. Will- v. State, 62 Ala. 218. 
 
 iams, 31 Ind. 444; Alexander v. Feary, 5 Dean v. Thatcher, 3 Vroom. (N. J.) 
 
 9 Ind. 4S1; Doe v. Harvey, 3 Ind. 104; 470; Newcomb v. Newcomb, 13 Bush. 
 
 Doe v. Smith, 1 Ind. 451; Horner v. 544. See, as to effect of defective notice, 
 
 Doe, 1 Ind. 130; Mathis v. State, 94 Paine v. Moreland, 15 Ohio, 435; Beech 
 
 Ind. 562; Pointer v. State, 89 Ind. 255; v. Abbott, 6 Vt. 586; Glover v. Holman, 
 
 Coit v. Haven, 30 Conn. 190; Lawler 3 Heisk. 519; Wert v. Williamson, 1 
 
 v. White, 27 Texas, 250; Swearengen v. Swan. 277; Moomey v. Maas, 22 Iowa, 
 
 Gulick, 67 111. 20S; Evans v. Young, 10 3S0; Peck v. Strauss, 33 Cal. 678; Town 
 
 ;i6, 1 5 Pac. Rep. 424; Sharp v. of Lyons v. Cooledge, 89 111. 529; Sac- 
 
 Brunnings, 35 Cal. 1,28; Messenger v. ramento Savings Bank v. Spencer, 53 
 
 Kintner, 4 Binn. 97. Cal. 737; Kingman v. Paulson. 126 Ind. 
 
 2 Fogg v. Gibbs. 8 Baxt. 464; Ilerrick 507; Lantzr. Maffatt, 102 Ind 23; Ante, 
 v. Butler, 30 Minn. 156, 14 N. W. Rep. §§ 330, 331, 332, m, 334. 
 
 794-
 
 PRESUMPTIONS. 
 
 It has also been held that the failure of the record to show that 
 the proper preliminary steps were taken to authorize a judg- 
 ment by confession did not impair the validity of the judgment 
 inasmuch as it would be presumed that all was done that the 
 law required. 1 
 
 § 718. Judgment of Trial Court is Presumed to be properly Sup- 
 ported — The general presumption is that the judgment of a ju- 
 dicial tribunal is supported by whatever is essential to its va- 
 lidity and, effectiveness. It will be assumed on appeal, in cases 
 where the record is silent, that the preliminarv steps necessary 
 to impart vitality and force to a judgment were duly taken. 2 
 This rule, in effect, does no more than assert that the judgments 
 of judicial tribunals can not be deemed foundationless where 
 their lack of support does not appear affirmatively, and it is ob- 
 vious that this rule is just, for certainly judicial tribunals are 
 entitled to an intendment or presumption that their judgments 
 rest on proper foundations. 
 
 § 719. Pleadings — Presumption that the Judgment is within and 
 Founded on — In the absence of a recital or statement in the 
 record to the contrary the presumption is that the judgment is 
 within the issues and supported by the appropriate pleadings. 3 
 
 1 Caley v. Morgan, 114 Ind.350. We complish what only objections and ex- 
 are not unmindful of the fact that there ceptions can accomplish. 
 is a radical difference between a collat- * Robb v. Ankeny. 4 Watts & S. 12S; 
 eral attack upon a judgment and a direct Bell v. Davis, 1 Cal. 134; Headly :•. 
 attack by appeal, nor are we unmind- Board, 4 Blackf. 116; Taylor v. Carpen- 
 ful of the fact that in many cases cited ter,2 Sandf. Ch. 603; Campbell v. Dool- 
 the decisions referred especially to a ing, 26 Ark. 647; Ex parte, Donaldson, 
 collateral attack. Hut the principle to 44 Mo. 149; Howell :\ Morlan, 78 111. 
 which the cases are cited is that which 162; Wise v. Ringer,42 Ala. 488; Mid- 
 as>erts that the silence of the record land, etc., :'. McCartney, I Neb. 
 does not overcome the presumption See, generally, State v. A. lams. 84 Mo. 
 that the proceedings of the court were 310. Baker :■. Armstrong, ;; Ind. 
 regular ami legal, for that presumption iS,»; Abbott :\ Johnson, 47 Wis. 239; 
 exists even in the ease of appeal where Mayes v. Goldsmith, 58 Ind. 94. 
 there is no averment or no fact oppos- 3 Iron- v. Collins. S ( > Ala. 108; Citi- 
 ing it. There must, indeed, be objec- zens' Hank :. Bolen, 121 Ind. 301. 23 
 tion, exception, and a due reservation N. E. Rep. 146; Buecher v. Casteen, 41 
 of a ruling for review, and. of course, a Kan. 141, 2 1 Pac. Rip. 112; Rundell 
 silent or incomplete record can not ac- V. Kalbfus, 125 Pa. St. 123; Brassfield 
 
 43
 
 tjy^ ERROR IN JUDICIAL PROCEEDINGS. 
 
 Where there are material and immaterial issues, the> presump- 
 tion is that the immaterial issue was disregarded and the judg- 
 ment given on the material issue, unless the record expressly or 
 by clear implication shows the contrary. 1 Where a demurrer 
 is overruled to the evidence and there is one good and one bad 
 paragraph of complaint, the appellate tribunal will presume 
 that the judgment was rested on the good paragraph. 2 The 
 general doctrine that the presumption is that the judgment is 
 founded on proper pleadings finds a striking illustration in the 
 cases which hold that where an indictment contains several 
 counts, some good and some bad, the presumption is that the 
 judgment is founded on the good counts. 3 It is proper to here 
 note that the rule has no application where a timely objection 
 challenging the pleading, either in a civil or criminal case, is 
 made in the trial court, for if the pleading is there duly assailed 
 and a wrong ruling is made, there is no presumption that the 
 judgment is right; on the contrary, the presumption is (unless 
 rebutted, as it may be by the record), that the error influenced 
 the ultimate decison. 4 The rule last stated is a just one, since 
 it is but reasonable to assume, in the absence of averments or 
 recitals to the contrary, that the court carried the theory an- 
 nounced in its ruling on the pleadings throughout the case. 
 
 § 720. Presumption that Rulings on Pleadings were Correct — 
 
 The party who asserts that a ruling upon a pleading was er- 
 
 v. Burgess (Ky.), 10 S. W. Rep. 122: Murphy v. Commonwealth, 23 Gratt. 
 
 Calder v. Smalley, 66 Iowa, 219. See, 960; State v. O'Brien, 21 La. Ann. 
 
 generally, Lay v. Lawson, 23 Aid. 377. 265; Lyons v. People, 6S 111. 271; 
 
 1 Harvey v. Laflin, 2 Ind. 477; State Brown v. State, 5 Eng. 607; Parker v. 
 : . Hood, 7 Blackf. 127. Commonwealth, 8 B. Monr. 30; Isham 
 
 2 Ohio, etc., Co. v. Collarn, 73 Ind. v. State, 1 Sneed, in; State v. Shelle- 
 261; Myrick v. Meritt, 22 Fla. 335. dy, S Iowa. 477; Hudson v. State, 34 
 
 3 Powers v. State, 87 Ind. 97; En- Ala. 253; West v. State, 2 Zabr. 212; 
 wright v. State, 58 Ind. 567; Jennings v. People v. Curling, 1 Johns. 320; State 
 Commonwealth, 17 Pick. So; Stoughton v. Stebbins, 29 Conn. 463; Guenther v. 
 v. State, 2 Ohio St. 562; Roberts r. Peeple, 24 N. Y. 100. 
 
 . 14 Ga. S; State v. Montgomery, * Wolf v. Schofield, 38 Ind. 175; 
 
 28 Mo. 594; United States v. Burroughs, Peery v. Greensburgh, etc., Co., 43 Ind. 
 
 3 McLean. 405; State v. Connolly, 3 321; Bailey 7'. Troxell, 43 Ind. 432; 
 
 Rich. L. 337; State v. Miller, 7 Ired. Schafer v. State, 49 Ind. 460; Evans- 
 
 275; Arlen v. State, iS N. H. 563; ville, etc., Co. v. Wildman, 63 Ind. 370.
 
 PRESUMPTIONS. 
 
 675 
 
 roneous must affirmatively show his assertion to be correct, 
 otherwise the presumption that the court rules correctly upon 
 the pleadings will prevail against him. 1 Thus, where a de- 
 murrer is overruled and is not in the record the presumption is 
 that the demurrer did not assign the proper cause, or that the 
 pleading demurred to was not liable to the objection urged by 
 the demurrer. 2 So, it is presumed that whatever issues were 
 required to be decided were decided. 3 Where pleadings are 
 necessary but none are filed the presumption is that they were 
 waived by the express or implied agreement of the parties. 4 
 Pleadings appearing in the record and acted upon by the court 
 are presumed to have been properly filed. s All issues are pre- 
 sumed to have been correctly submitted for decision and regu- 
 larly and justly decided. 6 Amendments will be presumed to 
 have been made at the proper time and in the appropriate 
 mode. 7 Improper counts may be treated as having been struck 
 out. 3 Where no ruling is shown it will be presumed that a 
 ruling was expressly or impliedly waived, or if necessary, was 
 correctly made. 9 Where a notice is requisite to give effective- 
 
 1 Holding v. Smith, 42 Ind. 536; 
 Blinks v. State, 48 Ind. 172; Sigler v. 
 Woods, 1 Iowa, 177; Moore v. Gilbert, 
 46 Iowa, 50S; First Nat. Bank v. Car- 
 penter, 41 Iowa, 51S; Supreme Lodge 
 of Knights of the Golden Rule v. Rose, 
 62 Texas, 321; Basey v. Gallagher, 20 
 Wall. 670; Johnston v. Holmes. 32 So. 
 Car. 434, 11 S. E. Rep. 20S; Conowav v. 
 Weaver, 1 Ind. 263; Dritt v. Dodds, 35 
 Ind. 63; Murphy v. Clayton, 51 Ind. 
 
 H7- 
 
 2 Crowell V. City of Peru, 41 Ind.308; 
 Comer v. Ilimes, 49 Ind. 4S2. It is only 
 the legitimate statements of the record 
 — not the recitals of the clerk — thai can 
 overcome the presumption. Blany v. 
 Finley, 2 Blackf. 338; Wilson v. C 
 
 2 Blackf. 402; Richardson v. St. Joseph 
 Iron Co., 5 Blackf. 146; Conoway v. 
 Weaver, 1 Ind. 263. 
 
 ' Bottorf :•. Wise, 53 Ind. 32; Hargus 
 v. Goodman, 12 Ind. 629; Indianapolis, 
 etc., Co. V. Clark. 21 Ind. 150; Brandon 
 
 v. Judah, 7 Ind. 545; Walker p. Houl- 
 ton, 5 Blackf. 34S; Buntin v. Weadle, 
 20 Ind. 449. 
 
 4 Campbell v. Hayes, 77 Cal. 36, iS 
 Pac. Rep. S60; Gordon v. Donahue 
 (Cal.), 21 Pac. Rep. 970; Salisbury v. 
 Bartleson, 39 Minn. t,(^. 40 N. W. Rep. 
 265; Wvvell v. Jones, 37 Minn. 68.33 
 \. W. Rep. 4.3; Butler©. Winona Mill 
 28 Minn. 205; Jones©. Wilder. . ,v > 
 Minn. 238; Davidson v- Farrell, S Minn. 
 258; Libby v. Ilu.-by, 28 Minn. 40; Hol- 
 land v. Union County, 6S Iowa. 56; 
 Hervev p. Saverv. 48 Iowa, 313. 
 
 •' Bennetl v. Abbett, 51 Ind. 252; 
 1 v. Halderman, 75 Ind. 564. 
 
 6 Dorr r. McDonald, 43 Minn. 458, 15 
 X. W. Rep. S64. 
 
 T Kelsev v. Chicago, etc., Co 
 
 Dak. , j.5 \. W. Rep. 204. 
 
 s Schirmeier v. Baecker, 20 111. App 
 
 373* 
 
 j Va. 832, 1 S.E. 
 
 Rep. 67; Birmingham, etc., Co. v.
 
 676 ERROR INJUDICIAL PROCEEDINGS, 
 
 ness to a ruling upon the pleadings the presumption is that it 
 was given as the law requires. 1 
 
 § 721. Rulings on the Evidence — Presumptions respecting — It is 
 so well settled that the rulings of the trial court in admitting or 
 excluding evidence are presumed to be right, that it is unneces- 
 sary to refer to authorities upon the general subject. It is 
 everywhere agreed that a party who assails a ruling admitting 
 or excluding evidence must bring to the appellate court a record 
 clearly exhibiting the ruling and showing it to be manifestly 
 erroneous As there is no doubt as to the existence of the gen- 
 eral doctrine, as much as it is necessary or profitable to do is 
 to call attention to some instances showing peculiar applications 
 of the settled general doctrine. It may not be improper to pre- 
 face a reference to the particular instances by the general state- 
 ment that the decisions all agree upon one point, and that is 
 this : There must be full and satisfactory record proof that the 
 ruling relied upon as a cause for reversal was wrong, for, if 
 circumstances or facts can be legitimately inferred which will 
 authorize the conclusion that the ruling was right, the presump- 
 tion will prevail, 2 and, hence, it is sometimes necessary to so 
 frame the record as to exclude facts or circumstances that will 
 authorize an inference supporting the ruling, although it is not 
 necessary to anticipate or provide against forced and unnatural 
 inferences. We may with propriety begin our reference to par- 
 ticular instances by directing attention to one of our own cases 
 wherein it was held that although a witness was in court a 
 few hours before his deposition was read, yet it would be 
 presumed that reasons existed justifying the reading of the 
 deposition. 3 A deposition is presumed to have been authenti- 
 cated by the certificate of the proper officer.' 1 The general doc- 
 
 Wilder, 85 Ala. 593, 5 So. Rep. 307; Rep. 707; Howard v. Kopperl, 74 Tex. 
 
 v. Gallagher, 20 Wall. 670; United 494, 5 S. W. Rep. 627. A state of facts 
 
 Barnard, 1 Ariz. 319, 25 Pac. required to make evidence competent 
 
 Rep. 523; Newcomb v. White (X. M.). may be presumed. Gray v- Montgom- 
 
 23 Pac. Rep. 671, cry. 1713.66; Chase v. Scott, 33 la. 309. 
 
 1 Chattanooga, etc., Co. ». Jackson, 3 Louisville, etc., Co.z>. Hubbard, 110 
 
 '.676, 13 S. I".. Rep. [09; Bishop Ind. 193. See. generally, Ilunsinger v. 
 
 7 Morris, 22 [11. App. Ct. 564. Holer, no Ind. 390. 
 
 -' Mercer v. Corbin, 117 Ind. ^50; * Sullivan ?•. Missouri Pacific R. Co., 
 
 Dorbert v. State, 6S Md. 209, 11 Atl. 97 Mo. 113, 10 S. W. Rep. 852.
 
 PRESUMPTIONS. (J77 
 
 trine is that written evidence received by the court is, in all 
 cases where the contrary does not appear, presumed to have 
 .been duly authenticated. 1 Where depositions are excluded, 
 the presumption is that sufficient reasons existed for excluding 
 them, as, for instance, that they were not filed in time. 1 ' Where 
 documentary evidence is admitted by the court, the presump- 
 tion is that it was competent. 3 Where a witness is competent 
 as to some matters in controversy and incompetent as to others, 
 it will be presumed, the contrary not appearing, that he was 
 permitted to give testimonv as to such matters, only, as he was 
 competent to testify to. 4 Where witnesses are permitted to 
 give testimony as experts, the presumption is that the court 
 duly ascertained their competency to testify as experts before 
 allowing their testimony to go to the jury. 5 If evidence not 
 appearing in the record is required to make the evidence 
 fered competent, it will be presumed that the offered evidence 
 was excluded for the reason that none was given, making com- 
 petent that offered. 6 
 
 §722. Instructions — Presumptions concerning — It has been 
 again and again decided that the trial court is presumed to 
 have given the jury correct instructions upon all the mate- 
 rial points in the case. A party who desires to break the force 
 of this presumption must present to the trial court a record 
 
 1 Barnhart v. Ford, 41 Kan. 341, Wall. 162; Leedom v. Lambaert, So Pa. 
 21 Pac. Rep. 239; Holton v. Kemp, St. 3S1; Coxe v. Deringer, $2 Pa. St. 
 81 Mo. 661; Towne v. Bossier, 19 La. 236; Bemes v. Jennings, 46 Vt.45; Pres- 
 Ann. 162; Morris v. Ogle, 5663.592. ton v. Wright, 60 Iowa, 351; Dodge v. 
 See, generally, Rice v. Cunningham, 29 Coffin, 15 Kansas, 277; Burke v. Pin- 
 Cal. 492; Smith v. Williamson, 6 Hal. nell, 93 Ind. 540; Outlaws. Davis, 27 
 (N.J.) 313. 111. 466; Brown v. Gill, 49 Ga. 549; Mer- 
 
 2 Leinpo v. State, 2S Texas App. 179, ritt v. Baldwin, 6 Wis. 439; Morgan v. 
 12 S. W. Rep. 588. State, 12 Ind. 44S. 
 
 3 Carroll v. Peake, 1 Pet. iS. The * Commonwealth v. Mosier, 135 Pa. 
 case cited really does no more than give 221. [9 Atl. Rep. 943; Van Brunt v. 
 effect to the long and well settled rule Greaves, ;-• Minn. 6S. 
 
 (enforced in a multitude of cases) that 5 Blumhardt 0. Rohr, 70 Md. 328, 17 
 
 judicial decisions are presumed to he Atl. Rep. 266. 
 
 rightfully made and properly recorded. G Condeno. Morningstar, 94 Ind. [50; 
 
 Bohun v. Delessert, 2 Coop. Ch. Cases, Brown v. Owen, 94 Ind. 31: Smi*h :. 
 
 Pt. I, 21 Gossetc Howard, toQ. B.359, Laumier, 12 Mo. App, 546; Abshire v. 
 
 411; Garnharts v. United States, 16 Williams. 76 Ind. 97.
 
 678 ERROR IN JUDICIAL PROCEEDINGS. 
 
 fully and clearly showing that the trial court erred in giving or 
 in refusing to give instructions. There is no contrariety of 
 opinion upon the general subject so that it would be unprofita- 
 ble, as well as unnecessary, to cite the authorities upon the 
 subject, although it would be easy to collect a vast number of 
 decisions. The presumption is not overcome by bringing part, 
 only, of the instructions into the record, since the presumption 
 is that those not in the record cured errors or defects in those 
 that were given to the jury. 1 It is necessary, in order to break 
 the force of the presumption, to bring all of the instructions 
 into the record, or to show, where such a showing is allowable, 
 that the instructions not in the record do not affect the point in 
 controversy. 2 Where the instructions state the issues between 
 the parties or the theories assumed, the presumption is that the 
 statement is correct. 3 Where facts are assumed in the instruc- 
 tions the appellate tribunal will presume, in the absence of any- 
 thing to the contrary, that they were assumed by the trial court 
 for the reason that they were admitted by the parties, or were 
 fully established by uncontradicted evidence. 4 Where the evi- 
 dence is not in the record the general presumption will save 
 the instructions if they can be regarded as correct upon any 
 supposable state of facts under the issues. 5 
 
 1 Cobb v. Malone, 91 Ala. 38S; Hal- v. Tomlinson, 91 Ind. 167; Garrett v. 
 
 sev v. Darling, 13 Col. 1, 21 Pac. Rep. State, 109 Ind. 527; Pittsburgh, etc., Co. 
 
 913; Crouse v. Rowley, 3 N. Y. S. 863; v. Noel, 77 Ind. no; Newcomer v. 
 
 McCarty v. Chicago, etc., Co., 34 111. Hatchings, 96 Ind. 119; Delhaney v. 
 
 App. 273; Whiting v. City of Kansas, State, 115 Ind. 499; Walker v. State, 
 
 59 Mo. App. 259; Fernbach v. City of 102 Ind. 502; National Benefit Associ- 
 
 \\ aterloo,76Ia. 59S. 41 N.W. Rep. 370; ation v. Grauman, 107 Ind. 2SS; Cline 
 
 Ford v. Ford, no Ind. 89; Lehman v. v. Lindsey, no Ind. 337; Stephenson 
 
 Hawks, 121 Ind. 541; Stott v. Smith, 70 v. State, no Ind. 358. 
 
 Ind. 29S; Bowen?. Pollard, 71 Ind. 177; 3 Drinkout v. Eagle Machine Works, 
 
 Freeze v. De Puy, 57 Ind. 18S; Puett 90 Ind. 423; Cory v. Silcox, 6 Ind. 39; 
 
 v. Beard, S6 Ind. 104; Clore v. Mcln- Legget v. Harding. 10 Ind. 414. 
 
 tire, 120 Ind. 262; Stull v. Howard, 26 4 Wilson v. Atlanta, etc., Co., 82 Ga. 
 
 Ind. 456; Marshall v. Lewark, 117 Ind. 3S6, 9 S. E. Rep. 1076; Hinds v. Har- 
 
 bou. 5S Ind. 121. 
 
 City of New Albany v. McCulloch, 5 Abrams v. Smith. 8 Blackf. 95 ; Keat- 
 
 1:7 Ind. 500; Grubb v. State, 117 Ind. ing v. State, 44 Ind. 449: Higbee v. 
 
 277, 279; Cooper v. State, 120 Ind. 377; Moore, 66 Ind. 263; Elkhart, etc., As- 
 
 Taber v. Grafmiller, 109 Ind. 206; Ken- sociation v. Houghton, 103 Ind. 2S6; 
 
 nedy v. Anderson^S Ind. 151 ; Mitchell Joseph v. Mather, 1 10 Ind. 114; Weir, 
 
 
 .->/ /
 
 PRESUMPTIONS. 
 
 679 
 
 §723. Juries and Jnrors — Presumption Concerning — The pre- 
 sumption is that juries are properly summoned and impaneled. 1 
 It is presumed that jurors sworn to try a cause were duly quali- 
 fied. 2 In short the presumption is that all was done that the law 
 requires, and that lawful persons were selected and served as 
 jurors. 3 The presumption is that the court duly admonished the 
 jury as to their duty. 1 Where challenges to jurors are sus- 
 tained, the presumption is that the challenges were correctly 
 allowed/' It will also be presumed that the trial court allowed 
 a party the number of peremptory challenges given him by the 
 law. 6 
 
 § 724. Verdicts — Presumptions in aid of— It will be presumed 
 that jurors have rightfully performed their duty and have re- 
 
 etc, Co. v. Walmsley, no Ind. 242; 
 Smith v. Heller, 119 Ind. 212; Collis v. 
 Bowen, 8 Blackf. 262; Ball v. Cox, 7 
 Ind. 453; Cartwright v. Yaw, 100 Ind. 
 119; State v. Frazer, 2S Ind. 196; List 
 v. Kortepeter, 26 Ind. 27; Ruffing v. 
 Tilton, 12 Ind. 259. If wron^ upon any 
 supposable state of facts the presump- 
 tion will not avail. Rappv. Kester, 125 
 Ind. 79; Murray v. Fry, 6 Ind. 371. It 
 requires an extraordinarily strong case 
 to defeat the presumption. It seems 
 that where it can be fairly and reason- 
 ably inferred that admissions were made 
 supplying averments the presumption 
 will prevail. 
 
 1 People V. Board of Supervisors, 23 
 111. App. 3S6, S. C. 125 111. 334, 17 X. 
 E. Rep. 802; Breden v. State, SS Ala. 
 30, 7 So. Rep. 25S; Parker v. People, 13 
 Col. 155, 21 Pac. Rep. 1120; State :•. 
 Jones, 97 N. C. 469, 1 S. E. Rep. 6S0; 
 Dove v. Commonwealth. 82 Va. 301; 
 State v. Jones, 61 Mo. 232; Holloway 
 V. State. 53 Ind. 554; Page V. Com- 
 monwealth. 27 Gratt. 954; Osgood v. 
 State. 64 Wis. 472; Chicago, etc.. Co. 
 v. Aldrich. 134 111. 9, -| V E. Rep. 763. 
 
 2 Willey v. State, |<. Ind. 563; Brad- 
 ford :'. State. 15 Ind. 347: Mansell v. 
 
 Queen, 8 Ell. & B. 54; Chesapeake, 
 etc., Co. v. Patton. 9 W. Va.64S; Shoe- 
 maker v. State 12 Ohio, 43; Isham v. 
 State, 1 Sneed, m; Keenan v. State. 
 8 Wis. 132; State v. Roderigas, 7 Nev. 
 328; State v . Millin, 3 Nev. 409; State 
 v. Shaw, 5 La. Ann. 342. 
 
 3 Kessler v. State, 50 Ind. 229; Van- 
 derkarr v. State, 51 Ind. 91; Lovell v. 
 State, 45 Ind. 550; Sater v. State, 56 
 Ind. 37S; Ward v. State, 48 Ind. 289; 
 Bailey v. State, 39 Ind. 43S; Bell :■. 
 State, 42 Ind. 335; Long v. State, 46 
 Ind. 582; Holloway v. State. 53 Ind. 
 55 \: Piercer. State, 67 Ind. 354; Green 
 •0. State. SS Tenn. 614; State t. Craw- 
 ford, 99 Mo. 74, 12 S. W. Rep. 354. 
 
 4 Evans v. State, 7 Ind. 271; State v. 
 Palmer, 40 Kansas, 474, 20 Pac. Rep. 
 
 270 
 5 
 
 Chicago, etc., Co. "•. Aldrich, 134 111. 
 9, 24 N. E. Rep. 763; United States :•. 
 Groesbeck, 4 Utah, 4S7, 11 Pac. Rep. 
 542; United States r. Bromley. 4 Utah. 
 49S. 11 Pac. Rep. 619; State :\ Brecht, 
 41 Minn. 50. 42 X. W. Rep. 602. 
 
 6 Clarke z State. S; Ala. 71. 6 So. 
 Rep. 378; Citv of Goshen v. England, 
 1 19 Ind. 368, 21 -V K. Re;
 
 (580 ERROR IN JUDICIAL PROCEEDINGS. 
 
 turned a true verdict according to the law and the evidence. 
 The general doctrine is declared and enforced in the many 
 scores of cases which hold that it will be assumed that the 
 verdict is supported by the evidence and that the jury properly 
 decided the controversy in cases where the evidence is conflict- 
 ing. It will be presumed that the instructions of the court were 
 understood and obeyed. 1 The presumption is that the verdict 
 was duly returned in open court. 2 In short, all reasonable 
 intendments will be made in order to support the verdict where 
 the record contains nothing sufficient to justify its overthrow, and 
 this doctrine is nothing more than a reasonable application of 
 the general rule that a breach of a sworn duty must be clearly 
 shown. 3 
 
 § 725. Miscellaneous Instances — It is almost impossible to group 
 and classify the particular presumptions recognized and ap- 
 plied in appellate procedure. They assume various forms and 
 embrace a multitude of particular instances. We have not at- 
 tempted to give a great number of the particular presumptions, 
 but have selected some of the important ones which we outline 
 in the pages that follow. Where the evidence is not in the 
 record it will be presumed, even as against the successful party, 
 that the costs were properly taxed against him. 4 A case taken 
 up out of its order is presumed to have been rightly taken up 
 and tried. 5 When a case goes from one court to another the 
 presumption is that the case properly reached the court which 
 rendered judgment. 6 If parties appear in the court where the 
 case was begun and there try the case, it will be presumed that 
 a change of venue previously ordered was waived. 7 Where 
 the record shows the presence of the accused at the opening of 
 
 1 Browning v. Hight, 7S Ind. 257. * Dehority v. Nelson, 56 Ind. 414; 
 
 1 Mattson v. Borgeson, 24 111. App. 79. Jamicson v. Board, 56 Ind. 466. 
 
 3 Threishel v- McGill, 2S 111. App. 5 Bradley v. Bradley, 45 Ind. 67; 
 
 7S; Cheatham v. State, 67 Miss. 335, 7 French v. Howard, 14 Ind. 455. 
 
 So. Rep. 204; Floege v. Wiedner, 77 6 O'Brien v. State, 125 Ind. 38, 41, 
 
 Texas, 311, 14 S. W. Rep. 132; Hicks citing Leslie v. State, S3 Ind. 180; 
 
 v. Ellis, 65 Mo. 176; People v- Williams, Duncan v. State, 84 Ind. 204; App v. 
 
 24 Cal. 31; Mathisz>. State, 18 Ga. 343; State, 90 Ind. 73; Bright v. State, 90 
 
 State v. Dumphey, 4 Minn. 438; State Ind. 543; Mannix v. State, 115 Ind. 245. 
 
 r. Ayer, 23 N. II. 301. ' Doty v. State, 6 Blackf. 529; Frosh 
 
 v. Holmes, S Texas, 29.
 
 PRESUMPTIONS. 
 
 the trial it has heen held that it will be presumed that he was 
 present throughout the entire proceedings. 1 A judgment is 
 presumed to have been pronounced in open court. 2 A modiii- 
 cation of a judgment or decree will be presumed to have been 
 rightfully made and at the proper time.' 5 That a judgment on 
 default was entered in open session and due form will be pre- 
 sumed. 4 Where the law requires the approval of a bond be- 
 fore further proceedings are taken, the presumption is that the 
 bond was approved before the proceedings were taken/' Where 
 the law requires instructions to be in writing it will be assumed 
 that they were written. A motion to set aside service of pro- 
 cess is presumed to have been properly sustained. 7 Where a 
 dismissal was entered but judgment upon default was subse- 
 quently rendered, the presumption is that the order of dismissal 
 was vacated and the case reinstated. 8 Open and close of the 
 argument is presumed to have been properly directed by the 
 trial court. 9 Where the record shows admissions of parties but 
 does not show what they were, it may be presumed that they 
 sustain the judgment. 10 In illustration of the general doctrine 
 that judgments will be deemed properly supported may be 
 cited the cases holding that consent to refer will be deemed 
 given as the law requires, 11 and where specific findings are 
 
 1 Ante, § 291; Welsh v. State, 126 Jacobs v. Morrow, 21 Neb. 233,31 N. 
 Ind. 71; People v. Sing Lum, 61 Cal. W. Rep. 7^9. 
 
 538; Carper?. State. 27 Ohio St. 572; 6 People ?. Garcia, 25 Cal. 531. 
 
 Bond v. State, 23 Ohio St. 349; Bartlett 7 Stephens v. Bradley, 24 Fla. 201. 3 
 
 v. State, 2S Ohio St. 669; Contra. liar- So. Rep. 415. See Herd v. Cist (K) .), 
 
 ris v. People, 130 "111. 457, 22 N.E.Rep. 12 S. W. Rep. (.66. 
 
 S26. 8 Bloomfield Ry. Co. ©. Burress, ^2 
 
 2 Christian v. Lebeschultz, iS So. Car. Ind. S3. 
 
 602. See Woody v. Dean, 24 So. Car. 9 Loudemback v. Lowrv. 4 Ohio Cir. 
 
 499; Reed v. Higgins, 86 Ind. 143. 65; Dille v. Lovell, 37 Ohio St. 415; 
 
 5 Sumner v. Cook, 12 Kan. 102. See Louisville, etc., Co. v. Hubbard, it" 
 Vincent v.. Evans, 1 Metcf. (Ky.) 217; Ind. [93, [8 N.E.Rep. 611. 
 Commonwealth v. Brown, 12; Mass. l0 Rencher v. Anderson, 95 N. C. 208. 
 410. " Boogher v. Insurance Co., 103 1 
 
 * Bunker*. Rand, ig Wi§. 254, 90. See Morisej ;. Swinson, i<>( N C. 
 
 6 Cromelien v. Brink, 2>> l'a. St. 522. 555; Cooker- Williamson, 11 Ind. 2\2. 
 See, generally. Moody v. State. 84 Ind. Van Marter v. Hotchkiss, 4 Abb. Dec. 
 433; Sheldon v. Wright, 7 Barb. 39; (N. Y.) 4S4. 
 
 State 0. Hinchman, 27 Pa. St. 470;
 
 682 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 requisite they will be presumed to have been duly made. 1 The 
 presumption is that the trial court did its duty in restraining 
 the argument of counsel and preventing misconduct. 2 Orders 
 granting or denying applications for a continuance, a change 
 of venue, a new trial or the like, are presumed to have been 
 rightfully made and entered. 3 The presumption is that the 
 rules of the trial court were rightfully adopted and regularly 
 promulgated and recorded. 4 
 
 Simmons, 40 Ind. 442; La Follette v- 
 Higgins, 109 Ind. 241; Mackison v. 
 Clegg, 95 Ind. 373; Mathews v. Droud, 
 114 Ind. 26S; Beach v. Zimmerman, 106 
 Ind. 495; Shields a. McMahan, 101 Ind. 
 591, 595; Peck v. Board. 87 Ind. 221; 
 Foster v. Ward, 75 Ind. 594; Kernodle 
 v. Gilson, 1 14 Ind. 451; Stewarts. State, 
 in Ind. 5^4; Whislerc. Lawrence, 112 
 Ind. 229; Talcott v. Johnson, 41 Ind. 
 201. See, generally, Schwab v. Coots, 
 48 Mich. 116; Hurd v. Newton, 36 
 Mich. 35; Finn v. Corbitt, 36 Mich. 
 318; Fewlass v. Abbott, 2S Mich. 270. 
 * Illinois, etc., Co. v. Haskins, 115 
 111. 300. 
 
 1 Campbell v. Coburn, 77 Cal. 36; 
 Campbell v. Have-, 77 Cal. 36, iS Pac. 
 Rep. 860; Gordon v. Donahue, 79 Cal. 
 501. See, for application of the general 
 doctrine to notices, Gage v. Downey, 79 
 Cal. 140, 19 Pac. Rep. 113; Dominguez 
 v. Mascotti, 74 Cal. 269, 15 Pac. Rep. 
 773; Chestnutt v. Pollard. 77 Texas, 86, 
 13 S. W. Rep. S52; Platte. Continental 
 Ins. Co.. 62 Vt. 166, 19 Atl. Rep. 637. 
 
 2 Missouri, etc., Co. v. Lamothe, 76 
 Texas. 219, 13 S. W. Rep. 194. 
 
 3 McGarvey v. Ford (N. M.), 27 Pac. 
 Rep. 415; Robbins v. Neal, 10 Iowa, 
 560; Ramsey v. Bush, 27 Iowa, 17; 
 Willett v. Porter, 42 Ind. 250; Baker v.
 
 CHAPTER IX. 
 
 REQUESTS AND OFFERS. 
 
 726. No ruling or no request, no error. 
 
 727. Refusal to rule. 
 
 728. Implied requests. 
 
 729. Time tor making request. 
 
 730. A party basing a right on a re- 
 
 quest must himself make it. 
 
 731. Request must be affirmatively 
 
 shown. 
 
 732. Request for a special finding. 
 
 733. Request for writ ten instructions. 
 
 734. Request for an inspection of the 
 
 instructions of the court. 
 
 735. Requesting special instructions. 
 
 736. Requests where instructions are 
 
 correct as far as they go. 
 
 737. Request for the submission of 
 
 interrogatories to the jury. 
 73S. Request for a special verdict. 
 
 § 739. The practice in requesting spe- 
 cial verdicts. 
 
 740. Request for inspection and pro- 
 
 duction of documents. 
 
 741. When notice to produce not re- 
 
 quired. 
 Offers — General doctrine. 
 Offers of oral testimony. 
 Showing materiality and rele- 
 vancy. 
 745. Effect of mingling competent 
 with incompetent evidence. 
 Offer unaccompanied by inter- 
 rogatory unavailing. 
 Offer not required on cross-ex- 
 amination. 
 74S. Offer of documentary evidence. 
 749. Repeating offers. 
 
 742. 
 
 743- 
 
 744- 
 
 746. 
 
 747 
 
 § 726. No Ruling or no Request, no Error — It is in general true 
 that errors are founded upon rulings or decisions actually made 
 by the trial court, but there may be error in refusing to rule 
 where a request for a ruling is appropriately and seasonably 
 made. It is safe to say that the general rule, and one of very 
 comprehensive scope, is that where there is no ruling, or no 
 sufficient request to rule, there is no available error. 1 There 
 
 1 Highfill v. Monk,8i Ind. 203; Wash- 
 er v. Allensville, etc., Co., 81 Ind. 7S; 
 Doe v. McDonald, 4 Ind. 615; Priddy 
 v. Dodd, 4 Ind. S4; Coleman v. Dob- 
 bins, S Ind. 156, 163; Brownleev. Hare, 
 64 Ind. 311, 317; Noon v. Lanahan, 55 
 Ind. 262; Meredith 0. Lackey, 14 Ind. 
 529; White v. Gregory, 126 Ind. 95; 
 Richardson v. St. Joseph, etc., Co., 5 
 Blackf. 146; Clark v. Donaldson, 49 
 
 How. Pr. 63; Haze well p. Coursen, Si 
 N. Y. 630, 637; Tyson v. Tyson, 100 N. 
 C. 360, 368; Scroggs v. Stevenson, 100 
 
 N. C. 354. Motions calling for a rul- 
 ing must be presented to the court. 
 Gilbert ©. Hall, 115 Ind. 549. iS N. E. 
 Rep. 2S. Motions in course tiled prop- 
 erly, or duly docketed, must be taken 
 notice of by the parties in court. Bent 
 v. Maupin, 86 K.v. 271, 5 S.W. Rep. 425. 
 
 (683)
 
 (584 ERROR IN JUDICIAL PROCEEDINGS. 
 
 are exceptions to this rule but they are few. One exception is 
 that a question affecting the jurisdiction of the subject may be 
 interposed at any time, another is that a complaint, or an in- 
 dictment, may be assailed for the first time on appeal. 
 
 § 727. Refusal to Rule — In cases where a party has a right to 
 a ruling, and prefers in due season and in an appropriate mode, 
 a request for a designated ruling it is error to neglect or refuse 
 to rule, provided of course, the ruling, is asked upon a material 
 and proper matter. But where the power invoked is a discre- 
 tionary one the refusal to rule is not always error, indeed, as is 
 elsewhere shown, error can be seldom successfully assigned 
 upon a ruling, or upon a refusal to rule, where the court exer- 
 cises a purely discretionary power and the duty to decide or 
 the character of the decision is mere matter of discretion. It is 
 obvious that if a trial court could pass over motions or requests 
 duly filed or preferred without a ruling there would be danger 
 of great injustice to parties not in fault. Where parties do all 
 that it is incumbent upon them to do it would be a reproach to 
 the law if silence or inaction on the part of the court should be 
 permitted to prevent a review of the proceedings of the court. 1 
 If the duty which the party requests the judge to perform is of 
 a mandatory nature and the duty is exclusively devolved upon 
 the judge it is error for him to refuse performance upon the 
 ground that the party has failed to do an act remotely con- 
 nected with the duty, but it is otherwise where the party fails in 
 any respect to do what the law requires of him. 2 
 
 1 In Corning b. Woodin, 46 Mich. 44, press rulings on objections properly 
 
 the court held that silence was equiva- made against them. Were it otherwise 
 
 lent to a refusal. It was there said, in it would he in his power to stifle the 
 
 speaking of the refusal of the judge to right to a revision in many cases." 
 rule: " But the objection taken was an 2 Wells v. McGeoch, 71 Wis. 196, 221, 
 
 explicit call upon him to do so, and his 35 N. W. Rep. 769. "The presumption 
 
 omission to state any opinion can not of regularity in the proceedings of the 
 
 be set up as a bar against revision of trial court requires the complaining 
 
 the proceedings. Injurious irregulari- party to show affirmatively that he was 
 
 ties at the trial court can not be pro- denied some right." Craig v. Frazier, 
 
 tected against review in an appellate 127 Ind. 286, 2S8. 
 court by the judge's refusal to make ex-
 
 REQ] ES rS A.ND ( >FFERS. 
 
 § 728. Implied Requests — It is not always necessary that the 
 request for a ruling should be an express one. In every in- 
 stance there is an implied request to rule or decide where a 
 proper motion, demurrer or pleading is filed tendering an issue 
 of law, so it is, indeed, in many cases where issues of fact or 
 of law are presented on objections made in the course of a trial. 
 But under our practice it is necessary to do more than simply 
 present a request by implication, for a ruling must be insisted 
 upon and an exception reserved, upon the failure or refusal to 
 rule. 1 
 
 § 729. Time for Making Request — Where the statute fixes the 
 time within which a request shall be made it will generally be 
 futile unless made within that time. If no time is fixed by law 
 or by the rules of practice within which the request shall be 
 made, then it must be made within a reasonable time, before 
 action is required upon it. The trial court should be allowed 
 a reasonable time and opportunity to consider and decide upon 
 the questions involved, and to do what the request requires 
 should be done. 2 
 
 § 730. A party Basing a Right on a Request must himself make 
 
 it — Where a specific request is essential to the existence of a 
 right the part}- who attempts to make the request available in 
 cases where it is denied, is bound to show that the request was 
 his. This general rule precludes a party, where a refusal or 
 denial is the basis of a claim of error, from availing himself 
 of a request which came from his adversary. His own request 
 is, in general, the only foundation upon which he can safely 
 and securely build. Thus, a party can not avail himself of 
 his adversary's request for a special finding in a case where 
 the request is denied. 3 So, a party who desires written instruc- 
 tions should himself ask them, for he can not always rely upon 
 the request of his adversary. But the rule does not fully or 
 
 1 White v. Gregory, 126 Ind. 95, 98; that the request for a special finding 
 Coleman v. Slate. 111 Ind. 563; Grubb must, to be seasonable, be made at the 
 v. State, 117 End. 277, commencement of the trial. 
 
 2 Moore v. Harnett. 17 Ind. 349. In 5 Bingham v. Stage. 123 Ind. 281. 
 Hartlep v. Cole, 120 Ind. 247, it is held
 
 886 ERROR IN JUDICIAL PROCEEDINGS. 
 
 necessarily apply where the request has been acted upon by 
 the court. Thus, where special interrogatories are submitted 
 to a jurv upon the request of one of the parties they can not, 
 as a general rule, be withdrawn over the objection of the other. 1 
 It is clear that there is an essential difference between a case 
 where there is affirmative action upon a request and a case 
 where the request is denied, for, if action is taken the clear 
 implication is that any other request would be fruitless and idle. 
 Not only this, but more, for in the case of affirmative action 
 the party has a right to assume that what has been asked will 
 be done, and it might work great injustice to him if the court 
 should change its decision, as, for instance, in a case where 
 the court has announced that a special verdict will be directed. 
 But even the general rule that where there is a refusal the one 
 party can not take advantage of the request of the other has 
 its limitations and exceptions. If the party not making the re- 
 quest should show that he was diligent, free from fault and that 
 he was wrongfully misled to his prejudice he would not be 
 turned away entirely remediless. 
 
 § 731. Request must be Affirmatively Shown — Where a special 
 request is a condition precedent to the right to demand a rul- 
 ing it must appear by the record to have been made in due 
 season and in the appropriate mode. A party can not success- 
 fully complain of a ruling unless the record regularly shows 
 that he did all that the law required him to do in order to make 
 it the duty of the court to give the particular decision. If the 
 party has been in fault in this respect he will not be aided on 
 appeal. 2 
 
 1 Summers v . Greathouse, S7 Ind. Ind. 360. Nor do they govern where 
 
 205; Duesterberg v. State, 116 Ind. 144; the interrogatories are not material or 
 
 Peters v. Lane, 55 Ind. 391; Wood v. relevant. Groscup v. Rainier, in Ind. 
 
 Ostram, 29 Ind. 177; Noakes v . Morey, 361; Myers v. Murphy, 60 Ind. 282; 
 
 30 Ind. 103; Otter Creek, etc., Co. v. Foster v. Ward, 75 Ind. 594; Frank v. 
 
 Raney, 34 Ind. 329; Maxwell v. Boyne, Grimes, 105 Ind. 346; Continental, etc., 
 
 36 Ind. 120; Pitzer v. Indianapolis Co., Co. v- Yung, 113 Ind. 159. See Por- 
 
 So Ind. 509. But these decisions do not ter v. Waltz, 108 Ind. 40; Schreiber v. 
 
 govern equity cases since the submission Butler, S4 Ind. 576. 
 
 of questions in such e;i-es is merely tor ' In the case of Puett v. Beard, 86 
 
 the purpose of obtaining advice as to Ind. [04, 107, the court said: "One 
 
 matters of fact. Platter v. Board, 103 complaining of a ruling must, in order
 
 REQUESTS AND OFFERS. 
 
 
 § 732. Request for Special Finding — An express request is nec- 
 essary in order to secure a special finding. 1 A request will not 
 be implied, and a finding in the record which does not affirma- 
 tively appear to have been made upon request will be deemed a 
 general finding. 2 The request must be made at the commence- 
 ment of the trial in order to render it the compulsory duty of 
 the court to find the facts specially. 3 It is, however, discretion- 
 ary with the court to make a finding upon a request made at a 
 later stage, 4 but as it is discretionary no error can, as a general 
 rule, be successfully assigned upon the refusal to make such a 
 finding. We suppose, however, that if a diligent party free 
 from fault is misled, a request at a later stage of the proceed- 
 ings would be regarded as effective. To entitle such a request 
 to full force, it would undoubtedly be necessary to make a very 
 strong and clear case. If the court elects to act upon the re- 
 quest and does make a special finding, the adverse party's 
 complaint will not be heeded. 5 A specific and direct request 
 to make a special finding and state conclusions of law is suf- 
 ficient. It is not necessary to add to the request the statement 
 that the finding is asked with a view to except to the conclu- 
 sions of law. 6 It is no more necessary to state why a special 
 finding is asked than it is to accompany a request for written 
 
 to secure a reversal, affirmatively show 
 that he placed himself in an attitude to 
 rightfully ask that which the court re- 
 fused him. If this he not done the pre- 
 sumption of regularity which always 
 attends the proceedings of the trial 
 court in the absence of a contrary show- 
 ing will require the appellate court to 
 assume that the party did not do that 
 which the law required him to do in 
 order to entitle him to the ruling asked." 
 1 Nash v. Caywood, 39 Ind. 457; 
 Montgomery, etc., Co. V. Rock, |i Ind. 
 263; Hasselman :■. Allen, 42 Ind. 257; 
 Rose :■. Duncan. 43 Ind. 512; Board v. 
 Reynolds, 44 Ind. 509; Weston :•. 
 Johnson, 48 Ind. 1; Shane V. Lowry. 48 
 Ind. 171; Smith ;•. Tatman. 71 Ind. 
 394; Grover, etc., Co. v. Barnes, 49 Ind. 
 136; Rennick v. Chandler. 59 Ind. 354; 
 
 Northcutt :•. Buckles, 60 Ind. 577; Con- 
 ner v. Town of Marion, 112 Ind. 517; 
 McClellan v. Bond. 92 Ind. 424; Zel- 
 ler v. City of Crawfordsville, 90 Ind. 
 262; Martin :•. Martin. 74 Ind. 2117. 
 
 2 Lawson v. Hilgenberg, 77 Ind. 221; 
 Towers v. Fletcher, $4 Ind. 154; Bake 
 V. Smiley, S4 Ind. 212; Downey :•. 
 State. 77 Ind. 87; Wallace v. Kirtle, 
 Ind. 485; Steel v. Grigsby, 79 Ind. 1S4; 
 Conner V. Town o\ Marion, 112 Ind. 
 517; Barkley :•. Tapp, 87 Ind, 25. 
 
 3 Hartlep :•. Cole, 120 Ind. 247; Miller 
 • Lively, 1 Ind. App. <■. 27 N. L\ Rep. 
 
 437- 
 
 4 Kopelke v. Kopelke, 112 Ind. 435. 
 
 5 Kopelke V. Kopelke. 112 Ind. 435. 
 
 6 Western Union Tel. Co. :•. Tinsal, 
 9S Ind. 566; Trentman : . Eldridge, 9S 
 Ind. ?2c.
 
 Qgg ERROR IN JUDICIAL PROCEEDINGS. 
 
 instructions with a statement of the object of the request, or to 
 accompany a request for the submission of special interroga- 
 tories to a jury with a similar statement, for, in all such cases, 
 the object of making the request is impliedly disclosed in the 
 request itself. The request is the essential and indispensable 
 requisite and if it is definitely and appropriately made all is done 
 that the law requires. The request for a special finding must be 
 in the record in some appropriate form, 1 but it is sufficient if it 
 is in the finding signed and filed by the judge. 2 The finding, 
 when signed by the judge, is part of the record, 3 and there is no 
 reason why the request may not be shown by a recital in the 
 finding. It is difficult to conceive where it could be more ap- 
 propriately shown than in the special finding it called forth. 
 Where a special finding is actually made, signed and filed, and 
 it recites that a request was made, the presumption is that the 
 request was appropriately and seasonably preferred. 4 If the 
 party who requests a special finding is denied one, it is incum- 
 bent upon him to show that he made a specific request, and 
 made it in due season. Upon him rests the burden of over- 
 coming the presumption that the trial court did not err. He 
 must take such steps as entitle him to the special finding and 
 he must see to it that the record is so prepared as to show that 
 he did all that it was incumbent upon him to do, and that he 
 did it in the appropriate mode and within a reasonable time. 
 
 § 733. Request for Written Instructions — The proper course for 
 a party who desires that the jury shall be instructed in writing 
 is to submit a written request 5 asking that the instructions be 
 given in writing. Where a request for written instructions is 
 
 1 Smith v. Uhler, 99 Ind. 140. 25 Ind. 376; Comvell v. Clifford, 45 Ind. 
 
 2 Bodkin v. Merit, 102 Ind. 293. 392; Roberts v. Smith, 34 Ind. 550; 
 
 3 State v. St. Paul, etc., Co., 92 Ind. McClcllan v. Bond, 92 Ind. 424. 
 42; Button v. Ferguson, 11 Ind. 314; 4 Clark v. Deutsch, 101 Ind. 491. 
 Peoria, etc., Co. v. Walser, 22 Ind. 73, 5 The safe practice and the better 
 87. But it is indispensably necessary practice, is to put such requests in writ- 
 that the finding should be signed by the ing, but it is impliedly held in Gray v. 
 judge; it will not avail unless signed, Stivers, 38 Ind. 197, that a verbal rc- 
 although copied at full length in the quest is sufficient. The case cited is 
 order book. Smith v. Davidson, 45 not easily harmonized with Nickless V. 
 Ind. 396. See, also, Smith v. Jeffries, Pearson, 126 Ind. 477, 484.
 
 REQUESTS AND OFFERS. 
 
 Os!, 
 
 opportunely and seasonably submitted it is the duty of the court 
 to give all of its instructions in writing and it is error to g 
 any oral instruction. 1 The request must be made before the 
 argument begins. 2 A mere general direction to the jury not 
 embodying any proposition of law but simply indicating a mat- 
 ter of general duty is not within the rule forbidding oral mod- 
 ifications, for such a direction is not regarded as an instruction. 3 
 The request of the adverse party can not be made available by 
 the appellant. 4 
 
 § 734. Request for an Inspection of the Instructions of the Court — 
 
 If counsel desire to inspect instructions which the court of its 
 own motion proposes to give to the jury they should request 
 the court to " lay before them " such instructions. 5 The statute 
 
 1 The statute is mandatory and can 
 not be disregarded. Hopt v. United 
 States, 104 U. S. 631, 635. In the case 
 cited it was held that to read from a 
 book was error. Our decisions are to 
 the same effect. Stephenson v. State, 
 no Ind. 358; Townsend v. Chapin, 8 
 Blackf. 32S; Meredith v. Crawford, 34 
 Ind. 399; Kenworthv v. Williams, 5 
 I' K '- 375; Bottorff v. Shelton, 79 Ind. 
 9S; Sutherland V. Venard, 34 Ind. 390; 
 Hardin v. Helton, 50 Ind. 319; Bos- 
 worth v. Barker, 65 Ind. 595. The rule 
 is strictly enforced, and with reason, 
 since the objeel is to prevent any 
 changes, substitutions, or modifications 
 thai can not be fully exhibited in the 
 record, and that without resorting to the 
 memory of the judge or counsel. Pro- 
 vines v. Ileaston, 67 Ind. 482; Smurri'. 
 State, SS Ind. 504; Bradway v. \\ 'ad- 
 dell, 95 Ind. 170; Widner v. State, 28 
 Ind. 394; Toledo, etc., Co. v. Daniels. 
 21 Ind. 256; Rising Sun, etc., Co. v. 
 Conway. 7 End. [87; Laselle r/.Wells, 17 
 Ind. 33; Riley v. Watson, is [nd. 291; 
 Strattan v, Paul, to Iowa, 139; Head 
 v. Langworthy, [5 Iowa. 235. 
 
 2 Chance v. Indianapolis, etc., Co., 32 
 Ind. 472; Patterson :•. Indianapolis, 
 
 44 
 
 etc., Co., 56 Ind. 20; Craig v. Frazier, 
 127 Ind. 2S6; Puett v. Beard, 86 Ind. 
 104; Malady v. McEnary, 30 Ind. 273; 
 Ollam v. Shaw, 27 Ind. 388; Welsh v. 
 State, 126 Ind. 71, 78. 
 
 3 Lehman v. Hawks. 121 Ind. 541; 
 Bradway v.Waddell, 95 Ind. 170; Dodd 
 v. Moore, 91 Ind. 522; Lawler v. Mc- 
 Pheeters, 73 Ind. 577; Stanley V. Suth- 
 erland, 54 Ind. 339; McCallister v. 
 Mount, 73 Ind. 559; Trentman v. Wiley, 
 85 Ind. ^: Hasbrouck v. City of Mil- 
 waukee, 21 Wis. 219, 240; Patterson v. 
 Ball, 19 Wis. 243. 
 
 4 Jaqua v. Cordesman, etc., Co., 106 
 Ind. 141; Columbus, etc., Co. v. Powell, 
 40 Ind. 37, -|2. This general rule is sub- 
 ject to exceptions, for if the court should 
 indicate, clearly ami decisively, that it 
 would give written instructions, we 
 suppose that it could not withdraw its 
 declarations so as to wrongfully mis- 
 lead a party. 
 
 5 R. S. 1881, s s 534- Under the provis- 
 ions of s^ 534 counsel ina\ read instruc- 
 tions which the court indicates it will 
 give to the jury and apply them to the 
 tacts, hut counsel will not he permitted 
 to dispute the rules of law therein de- 
 clared. Scott ; . Scott. 124 Ind. 66. The
 
 690 ERROR IN JUDICIAL PROCEEDINGS. 
 
 does not declare that the request or application shall be in writ- 
 ing, but good practice so requires. The only safe rule is to 
 require all such applications or requests to be in writing, and 
 by many courts it is held that mere oral requests are insulli- 
 cient. 1 
 
 § 735. Requesting Special Instructions — The safe rule is to pre- 
 pare and deliver to the court before the argument begins in- 
 structions covering the material points of the case. As in the 
 case of a request to instruct in writing the request must be made 
 before the beginning of the argument and the instructions which 
 the party desires given should then be submitted to the court. 2 
 The request should be special, that is, instructions should be 
 presented to the court covering the points upon which the party 
 desires that the jury should be fully and specifically instructed, 
 for the failure to instruct upon a particular point is not error 
 unless the attention of the court is opportunely and appropri- 
 ately directed to that point. 3 This is true, although it is the 
 duty of the court to give general instructions. It is important 
 that the instructions which the court is requested to give to the 
 jury should be accurately worded and the law fully and prop- 
 erly expressed, for while the court may, if it deems proper, 
 correct or modify an instruction, it is not bound to do so, but 
 may, without error, refuse an instruction expressed in improper 
 
 record must show what comments 216; Pittsburgh, etc., Co. v. Noel, 77 
 
 counsel proposed to make or no ques- Ind. no; Carver v. Carver, 97 Ind. 
 
 tion is presented. Blizzard v. Apple- 497; White v. Behm, So Ind. 239; 
 
 gate. 77 Ind. 516, 527. Simpkins v. Smith, 94 Ind. 470; Krack 
 
 1 People v. Miller, 4 Utah, 410, 11 v. Wolf, 39 Ind. 88; Foxwell v. State, 
 Pac. Rep. 514. 63 Ind. 539, 541; Adams v. State, 65 Ind. 
 
 2 Newton v. Newton, 12 Ind. 527; 565; Shaw v. New York, etc., Co., 150 
 Ollam v. Shaw, 27 Ind. 38S; liege v. Mass. 1S2, 22 N. E Rep. 884; Dow v. 
 Newson, 96 Ind. 426; Terry v. Shivery, Merrill, 65 N. H. 248, 18 Atl. Rep. 317; 
 93 Ind. 413; Evansville, etc., Co. v. Peterson v. Toner, 80 Mich. 350, 45 N. 
 Crist, 116 Ind. 446; Noblesville, etc., W. Rep. 346; Drey f. Doyle, 99 Mo. 459; 
 Co. v. Vestal, 118 Ind. So. Silberberg v. Pearson, 75 Texas, 287, 12 
 
 3 Marshall v. State, 123 Ind. 128, 132; S. W. Rep. 850; Marsh v. Richardson, 
 Burgett v. Burgett, 43 Ind. 78; Rollins 106 N. C. 539, 11 S. E. Rep. 522; State 
 v. State, 62 Ind. 46; Sullivan v. State, v. Bagan, 41 Minn. 2S5. 
 
 52 Ind. 309; Marks v. Jacobs, 76 Ind.
 
 REljJ ESTS AND ( IFFERS. 691 
 
 terms. 1 The instruction as requested must be correct in its en- 
 tirety ; if there is a material misdirection embodied in it the 
 court may rightfully refuse to give it to the jury, for the court 
 is not bound to select and separate the good from the bad. 2 The 
 rule that the trial court is not bound to dissect an instruction 
 and select the good from the bad is applied by some of the 
 courts to a series of instructions, and if one of the series is bad 
 the whole may be rejected, but our court has not gone so far. 
 On the contrary, it has tacitly, at least, treated each instruction 
 in a series as independent of the others, so far as concerns its 
 sufficiency when refused, although in construing instructions 
 given the charge is considered as an entirety. 
 
 § 736. Requests where Instructions are Correct as far as they go 
 
 — If an instruction is correct as far as it goes, the fact that it 
 does not go far enough is not, as a general rule, the basis of 
 available error. To make the failure to go the proper length 
 available as error, the party must make a request for a full and 
 complete instruction upon the particular point. It is, in short, 
 incumbent upon a party who desires a specific and full instruc- 
 tion upon a point involved in the case to request it in due form 
 and at the proper time. 3 
 
 1 Lawrenceburgh, etc., Co. -•. Mont- Ind. 545; Fuller v. Coats, iS Ohio St. 
 gomery, 7 Ind. 474; Roots v. Tvner, 10 343,353; Bryant v. Crosby, 40 Me. 9, 
 Ind. 87; Mosier v. Stoll, 119 Ind. 244, 19; Indianapolis, etc., Co. v. Horsl 
 252; Goodwin v. State, 96 Ind. 550, U.S. 291, 295; Harveyf. Tyler, 2 Wall. 
 566; Rogers v. Leyden, 127 Ind. 50, 32S, 33S; Roberts v. State, 83 Ga. 166, 
 56; Dudley v. Parker, 55 Hun. 29; 369, 9 S. E. Rep. 675; Blumhardt v. 
 Wilson v. Atlanta, etc., Co., 82 Ga. Rohr, 70 Md. 32S. 
 3S6; Bevan v. Hay den, 13 Iowa, 122; 8 Murray v. State, 26 Ind. 141; Black - 
 Grimes v. Martin, 10 Iowa, 347: Lucas eter v. House, 67 Ind. 414; Colee v. 
 v. Brooks, iS Wall. 436; Over v. State. 75 Ind. 511; Carpenter v. S 
 Schifning, 102 Ind. 191; Board of Com- 43 Ind. 371; 1 State, 49 Ind 
 missioners v. Legg, 93 Ind. 523; M'c- Moore v. Shields, 121 Ind. 267; Geb- 
 Cammon :\ Cunningham. 108 Ind. 545; hart :\ Burkett, 57 Ind. 378; Harper :\ 
 Hauss ;■. Xiblack, So Ind. 407; Penn- State. ioi Ind. 109; Hatton :■. Jones, 
 sylvania Co. v. Weddle, 100 Ind. 138. 7S Ind. 466; Fitzu r orald v. Goff, 99 Ind. 
 See, generally, Sheehan :•. People, 131 2S. The general rule has been applied 
 111. 22. 22 X. E. Rep. 818; Carpenter v. in a great number ofcases and to que-- 
 Stillwell, 11 V Y. 61, ;>i, Hodges v. tions presented in almost every con- 
 Cooper, 43 X. Y. 216. ceivable form. Hishop :■. Redmon 
 
 1 McCammon v. Cunningham, 10S Ind. 157: Mobley ; Ind, 92;
 
 
 ERROR IN U'DICIAI. PROCEEDINGS. 
 
 § 737. Request for the Submission of Interrogatories to the Jury 
 
 — A party who desires the court to submit special interrogato- 
 ries to a jury must expressly request that interrogatories be sub- 
 mitted. The request must ask that answers be returned in the 
 event that the jury find a. general verdict, for it is not error to 
 deny an unconditional request. 1 The request should be pre- 
 sented to the court before the beginning of the argument, but 
 the court may, if it chooses, receive the interrogatories at a 
 later stage of the proceedings. 2 The request must not be lim- 
 ited by a statement that answers are required only in the event 
 that the general verdict is in favor of a designated party, since 
 such a limitation might tend to the prejudice of the adverse 
 party. 3 Interrogatories may, it has been decided, be placed in 
 a sealed envelope and the jury directed not to examine them 
 until they have agreed upon a general verdict ; at all events, 
 it was held that it was not error to pursue this course. 4 If 
 
 Louisville, etc., Co. v. Grantham, 104 
 Ind. ZS?>'i Astley v. Capron, 89 Ind. 
 167; l)u Souchet T'. Dutcher, 113 Ind. 
 249; Conrad z\ Kinzie, 105 Ind. 281; 
 Dyer v. Dyer, S7 Ind. 13; Ireland v. 
 Emmerson, 93 Ind. 1; City of South 
 Ber.d v. Hardy, 98 Ind. 577; Judd v. 
 Martin, 97 Ind. 173; Klosterman v. Ol- 
 25 Neb. 3S2, 41 N. W. Rep. 250; 
 Wimer :•. Albaugh 7S Iowa, 79,42 N. 
 W. Rep. 587; Dow v. Merrill (N. II.), 
 18 Atl. Rep. 317; Parker v. Georgia, 
 etc., Co., 83 Ga. 539, 10 S. E. Rep. 233; 
 Brotherton v. Weathersby (Texas), 11 
 S. W. Rep. 505; Clapp v. Minneapolis, 
 etc., Co., 36 Minn. 6, 29 N. W. Rep. 
 
 340- 
 
 1 Bird v. Lanius, 7 Ind. 615; Board 
 v. Kromer, S Ind. 446; Adams v. 
 Holmes, 48 Ind. 299; Hopkins v. Stan- 
 ley, 43 Ind. 553; Killian v. Eigenmann, 
 57 Ind. 480; Hodgson v. Jeffries, 52 
 Ind. 334; Ogle -\ Dill, 61 Ind. 438,443; 
 Lake Erie, etc., Co. v. Fix, SS Ind. 381, 
 383; Pitzer v. Indianapolis, etc., R. Co., 
 80 Ind. 569; Mcllvain v. State. So Ind. 
 faylor x>. Burk, 91 Ind. 252; Louis- 
 
 ville, etc., Co. r'.Woolery, 107 Ind. 381; 
 Schultz t\ Cremer, 59 Iowa, 1S2. 
 
 " Miller :•. Voss, 40 Ind. 307; Truitt 
 T'.Truitt,37 Ind. 514; Glasgow-'. Hobbs, 
 52 Ind. 239; Union, etc., Co. v. Moore, 
 80 Ind. 45S, 465; Morris v. Morris, 119 
 Ind. 341 ; Fleetwood v. Dorsey Machine 
 Co., 95 Ind. 491; Kopelke v. Kopelke, 
 112 Ind. 435; Wabash, etc., Co. t'.Tretts, 
 96 Ind. 450; Pavey v. American Ins. 
 Co., 56 Wis. 221. 
 
 3 Iladley :•. Hadley, S2 Ind. 75; Pitzer 
 v. Indianapolis, etc., R. Co., 80 Ind. 569. 
 A proper request is indispensable to 
 make the denial error. Kalckhoff v. 
 Zoehrlaut, 43 Wis. 373. 
 
 * Summers v . Tarney, 123 Ind. 560. 
 It is very doubtful whether the practice 
 sanctioned in the ease cited is a salutary 
 one. It seems clear that interrogatories 
 may sometimes direct the minds of the 
 jurors to the controlling points in the 
 case and thus lead them to a correct 
 conclusion, or, at least, assist them in 
 arriving at such a conclusion. Counsel 
 certainlv have a right to comment upon 
 interrogatories. Gresley v. State, 123
 
 REQUESTS A\D oil ERS 693 
 
 counsel had claimed the right to examine and comment upon 
 the interrogatories we suppose a different question would have 
 been presented. It would be unjust to deprive counsel of this 
 right, and yet the ruling in the case referred to might lead to 
 this result unless the doctrine there declared is carefully and 
 rigidly limited to cases where no such claim is duly and oppor- 
 tunely made. Where the request is denied the record should 
 affirmatively show when it was made, and in strictness, the re- 
 quest should be set forth in the record, but where the record 
 shows that the jury returned answers to the interrogatories the 
 presumption is that the}- were duly submitted. 1 In many of 
 the earlier cases, although there was much conflict, it was held 
 that the request and the submission must appear by bill of ex- 
 ceptions, but the first case cited in the note overrules the cases 
 declaring a different doctrine and establishes a sound and 
 sensible rule. It is evident that any other rule than that which 
 now prevails must be unsound for it disregards the presump- 
 tion that the jury and the court acted regularly and rightfully, 
 and also violently detaches special findings from a general 
 verdict although such findings are duly authenticated by the 
 signature of the foreman of the jury. 
 
 § 738. Request for a Special Verdict — A party has a right, upon 
 due request, to have the material facts fully found and stated 
 in a special verdict, leaving to the court the duty of pronounc- 
 ing the law upon the facts thus exhibited. 2 To make the duty 
 
 Ind. 72; Arkansas, etc.. Co. v. Can- v. Fretz, 99 Ind. 458. It is in harmony 
 man, 52 Ark. 517, 13 S. W. Rep. 2S0. with analogous cases, for verdicts, gen- 
 1 Frank --. Grimes, 105 Ind. 346; eral or special, are parts of the record 
 Shoner v. Pennsylvania Co., 2S N. E. proper, and it is based on principle, for 
 Rep. 616. The case first cited Overrules there is no conceivable reason for di- 
 many former decisions upon the point vorcing a properly authenticated rind- 
 involved here, among them: Cleve- ing from a general one or for presum- 
 land, etc., Co. V. Bowen, 70 Ind. 47S; ing that a jury voluntarily did what 
 Hervev v. Parry, 82 Ind. 263; Aiken v. they were not under a duty to do. 
 Ising, 94 Ind. 507; Hamilton .. Sho. iff, * Hopkins v. Stanley, 43 Ind 
 99 Ind. 63. It is, however, in harmony 558; Bird v. Lanius, 7 Ind. 615; Mich- 
 with the decisions in other cases, Sal- igan, etc.. Co. v. Bivens, 13 Ind. 
 ander v, Lockwood, 66 Ind. 285; Terre A.dams Express Co. - . Pollock. 12 Ohio 
 Haute, etc.. Co. v. Clark, 73 Ind. 168; St. 618. The jury may elect to return 
 Boots v. Griffiths, 97 Ind. 241 ; Redinbo a special verdict. Pittsburgh, etc., Co.
 
 694 ERROR IN JUDICIAL PROCEEDINGS. 
 
 to direct a special verdict imperative a request is necessary. 1 
 The request should be made in due season and if not so made, 
 it may be rightfully denied, but it is not error for the court to 
 grant the request at a very late stage of the case, for instance, 
 after the argument has begun ; 2 it is not, however, bound to en- 
 tertain a request made so late in the case. We suppose, how- 
 ever, that where a request comes so late it would be error to 
 deny the adverse party a reasonable time in which to prepare 
 a draft of a verdict, but in order to present the question for re- 
 view it would be necessary for such a party to appropriately 
 request that time be allowed him to prepare and submit a form 
 of a special verdict. It is implied, of course, that the refusal 
 of the request must be followed by the proper exception and 
 the ruling properly exhibited by the record. In saying that a 
 request is essential to make it the duty of the court to direct a 
 special verdict we do not mean to imply that the court may 
 not, in its discretion, direct a special verdict of its own motion ; 
 what we mean is, that, unless there is a request, the refusal 
 can not be made available as error on appeal. The rule is that 
 the court may direct a special verdict on its own motion, 3 but 
 it is under no duty to do so unless a request is appropriately 
 preferred. Where a special verdict is appropriately requested 
 the court is not only bound to direct that such a verdict be re- 
 turned, but it is also bound to refrain from directing a general 
 verdict. The party who demands that a special verdict exhib- 
 iting the facts be returned by the jury can not be embarrassed 
 by a general verdict i But if the court entirely disregards the 
 general verdict and acts upon the special verdict there is no 
 available error, inasmuch as the ultimate ruling is right al- 
 though reached by the wrong road. 5 The jury may, if it so 
 
 v. Ruby, 38 Ind. 294; Stephens on * Toler v. Keiher, 81 Ind. 383. See 
 
 Pleading, 92; Ruffing v. Tilton, 12 Ind. Bird v. Lanius, 7 Ind. 615, 621; Noble 
 
 2^j. v. Enos, 19 Ind. 72, 82. 
 
 1 Louisville, etc., Co. v. Kane, 120 5 Louisville, etc., Co. v. Balch, 105 
 Ind. 140, 22 N. E. Rep. So; Woollen v. Ind. 93. In Todd v. Fenton, 66 Ind. 
 Whitacre, 91 Ind. 502, 504. 25, 28, it was said: " A special verdict 
 
 2 Lowman v. Sheets, 124 Ind. 416, is not to be confounded with the find- 
 422. ing of the jury upon particular ques- 
 
 3 Weatherby v. Hii, r gins, 6 Ind. 73; tions of fact, to be stated in writing. 
 Lowman v. Sheets, 124 Ind. 416. Where there is a special there is no
 
 REQUESTS AND OFFERS. 695 
 
 elects, return a special verdict, and it is, of course, not a valid 
 objection to a verdict returned by the jury of its own motion, 
 that there was no request or direction to return a special 
 verdict. 1 If the jury of its own volition returns both a special 
 verdict and a general verdict, the refusal of the court to strike 
 out the latter will not be error, if it appears that the court gave 
 judgment upon the former. 2 It is undoubtedly irregular for a 
 jury to return both a general and a special verdict, for the in- 
 consistency in such a proceeding is manifest, but if the court 
 acts upon the controlling verdict — the special — there is no 
 prejudicial error ; if, however, the court should found its judg- 
 ment upon the general verdict, and that should be directly an- 
 tagonistic to the special, there would be harmful error. 3 
 
 739. The Practice in Requesting Special Verdicts — The correct 
 practice is for counsel who request a special verdict to prepare 
 a draft to be submitted to the jury. 4 The court is not bound to 
 submit the draft as prepared by counsel, but may put it in 
 proper form and make necessary corrections, nor is the jury 
 bound to use the draft prepared by counsel. 5 " The degree of 
 supervision which the court may exercise over the forms sub- 
 mitted to it must, manifestly, be left largely to its discretion, 
 
 general verdict, and the jury may be question was not well considered and 
 
 required to find specially upon particu- that the court lost sight of the principle 
 
 lar questions of fact only in cases where that there can not be two verdicts in 
 
 they render a general verdict." the same case. We have already seen 
 
 1 Hall v. Carter, 74 Iowa, 364, 37 N. that a special verdict is essentially dif- 
 W. Rep. 956. ferent from answers to interrogatories, 
 
 2 Webster v. Bebinger, 70 Ind. 9, 14. and we need only add that a special 
 
 3 The decision in the case cited in verdict, if good for anything, neces- 
 the preceding note really proceeds upon sarily covers and embraces all the ma- 
 the theorj- suggested in the text al- terial facts and hence absolutely cx- 
 though the point is not very fully or eludes a general verdict. 
 
 clearly developed. The decision in * Mumford v. Wardwell, 6 Wall. 423; 
 
 Hershman v. Hershman, 63 Ind. 451, Lake Shore, etc., Co. v. Stupak, 123 
 
 seems to be against the conclusion Ind. 210, 224; Hopkins v. Stanley, 43 
 
 stated, hut that decision is opposed to Ind. 553, : Tidd's Pr. 897; Pittsburgh, 
 
 principle and to the decisions in Todd etc., Co. :•. Ruby, 3S Ind. 294. S. C. 10 
 
 v. Fenton, 66 Ind. 25; Louisville, etc.. Am. Rep. 1 11. 
 
 Co. v. Balch, 105 Ind. 93; Toler v. 5 Millers. Shackleford, 4 Dana (Ky.) 
 
 Keiher, Si Ind. 383. It is evident that 264; Hopkins v. Stanley, 43 Ind. 553. 
 in Hershman v. Hershman, sufra, the
 
 696 ERROR IN J I DICIAL PROCEEDINGS. 
 
 since it is the duty of the court to instruct the jury so far as to 
 enable them to clearly comprehend the matters in issue and the 
 subjects to be covered by the special finding." 1 But broad as 
 the discretion of the court is, it does not extend so far as to 
 permit an invasion of the province of the jury. The court may 
 reject mere general conclusions of law and mere matters of 
 evidence, but it can neither state facts for the jury, nor can it 
 decide questions of fact, or intimate how such questions should 
 be decided, except in cases where there is no conllict of evi- 
 dence. All questions of fact upon which there is opposing evi- 
 dence must be left to the decision of the jury unconstrained by 
 any direction or instruction from the court. It thus appears 
 that the authority of the court is fenced in by rules which can 
 not be disregarded. We have already suggested that present- 
 ing a draft of a special verdict is not equivalent to a request, 2 
 and we repeat the suggestion because it is to be borne in mind 
 that the request is the foundation of the right to allege error 
 upon a ruling refusing to require a special verdict. 
 
 § 740. Request for Inspection and Production of Documents — A 
 
 request for the production or inspection of documentary evi- 
 dence 3 must, under our code, 4 be in writing, and so it should 
 be even where there is no statute requiring a written request. 5 
 An affidavit must accompany the motion or request, and it 
 should describe with reasonable certainty the book, paper or 
 other instrument which it is desired shall be produced or of 
 which an inspection shall be allowed. 6 The affidavit must 
 
 1 Louisville, etc., Co. v. Flannagan, * R. S. iSSi, §§ 479, 4S0. 
 
 113 Ind. 4SS, 494. See, generally, Lou- 5 Cummings v. McKinney, 5 111. 57; 
 
 isville, etc., Co. v. Frawley, no Ind. 18; Houseman V\ Roberts, 5 C. & P. 394; 
 
 Lake Shore, etc., Co. v. Stupak, 123 Ind. Cates v. Winter, 3 Term Rep. 306. 
 
 210; Louisville, etc., Co. v. Hart, 119 6 Whitman :•. Weller, 39 Ind. 515; 
 
 Ind. 273, 285; Woollen v. Wire, no Duke v. Brown, 18 Ind. -in; Bogart v . 
 
 Ind. 251; Indianapolis, etc., Co. v. Bush, Broun, 5 Pick. iS; United States v. 
 
 101 Ind. 5S2. Dull", 6 Fed. Rep. 45; Olney v. Ilat- 
 
 2 Louisville, etc., Co. v. Kane, 120 cliiY, 37 Hun. (N. Y.) 2S6; People v. 
 Ind. 140; Woollen v. Whitacre, 91 Rector, etc., 6 Abb. Pr. Rep. 177; New 
 Ind. 502. England Iron Co. v. New York Loan 
 
 3 As to what is regarded as docu- Co., 55 How. Pr. 351 ; Walker v. Granite 
 mentary evidence, see Patterson v. Bank, 19 Abbott's Pr. 1 n. 
 Churchman, 122 Ind. 379, 3S5.
 
 REQ1 ESTS AND OFFERS". 
 
 
 show that the instrument is necessar} and material, and that it 
 is in the hands of the adverse party. 1 Notice must be given 
 the party, and the notice must be reasonable. 2 
 
 § 741. When Notice to Produce not Required — In what we have 
 said concerning notice to produce books, papers and the like. 
 we have had regard to instruments of evidence and not to writ- 
 ten instruments forming part of the pleadings. When an instru- 
 ment forms a part of the pleadings in the case, it is, in legal 
 contemplation, part of the record. This is true, although a 
 copy is incorporated in the pleadings. It is manifest, therefore, 
 that there is no reason for requiring notice to produce the origi- 
 nal instrument in such cases. A party who properly makes an 
 instrument a part of his pleading impliedly asserts that he is 
 ready and willing to produce the original upon request. The 
 authorities are agreed that in such cases a notice to produce is 
 not necessary. 3 
 
 § 742. Offers — General Doctrine — A party who asserts a right 
 must show that the right is a substantial one and capable of en- 
 
 1 Whitman v. Weller, 39 Ind. 515. It 
 is held in many cases that the facts 
 showing the materiality must be stated. 
 and that it is not sufficient to state in 
 general terms that the instrument is ma- 
 terial and necessary. Cassard v. Hin- 
 man, 6 Duer. 695; Opdyke v. Marble, 
 44 Barb. 64; Thompson v. Erie R.Co., 
 9 Abb. Pr. (X.S.) 212; Julio :•. Ingalls, 
 
 17 Abb. Pr. 44S, n.; Davis v. Dunham, 
 13 How. Pr. 425; Speyers v. Torstritch, 
 
 5 Rob. (N. Y.) 606; Pegram :•. Carson. 
 
 18 How. Pr. 519; People v. Rector, etc., 
 
 6 Abb. Pr. 177. 
 
 2 Littleton v. Clayton, 77 Ala. 571; 
 McDonald v. Carson, 95 N. C. 377; 
 United States V. Duff, 6 Fed. Rep. 45; 
 Shreve v. Dulany, 1 Cranch. C.C.499; 
 Leaf v. Butt, 1 Carr & M. (.51; Foster 
 v. Pointer. 9 Car. & P. 718; Dewitt v. 
 Prescott, 51 Mich. 298; Atwell v. Mil- 
 ler, 6 Md. 10; Lawrence v. Clark, 14 
 Mees. <S: W. 249. See, generally, An- 
 
 derson Bridge Co. v. Applegate, 13 Ind. 
 339; United States v. Winchester. ? 
 McLean, 135; Grimes v. Fall. 15 Cal 
 63; Farmers', etc., Bank v. Lonergan, 
 2 1 Mo. 46. If the court errs in making 
 the order and the instrument is not used 
 there is no prejudicial error. Cleveland, 
 etc., Co. v. Closser, 126 Ind. 34S. An 
 appeal will not lie from such an order. 
 Western Union Tel. Co. v. Locke, toy 
 Ind. 9. See Board v. Fullen, 11S Ind. 
 15S. 
 
 3 Silvers v. Junction R. Co.. 17 Ind. 
 142; Bissel v. Drake. [9 Johns. 66; 
 Hammond V. Hopping. 1 3 Wend. 505; 
 Hardie v. Kretsinger, 17 Johns. 293; 
 Nealley v. Greenough, 25 N. H. 525; 
 McClean v. Hertzog, 6 Serg. & R. 154; 
 Lawson v. Bachinan, Si N. Y. 616; 
 1 looker v. Eagle Bank, 30 N. V.83 
 ■ v. Jones, 4 Taunt. 865; Joll 
 Taylor, 1 Camp. 143; Whitehead v, 
 Scott, 1 Mood. & R. 2.
 
 698 ERROR IN JUDICIAL PROCEEDINGS. 
 
 forcement. One who demands a decision of a court must pre- 
 sent actual matters for decision. He must show that he asks 
 the court to decide upon an actual state of facts and not upon a 
 mere feigned controversy. A party has no right to demand a 
 ruling unless he brings forward the facts upon which he prays 
 the court's decision. If parties were permitted to call for rulings 
 upon mere general statements or abstract questions, it would 
 often happen that courts would be occupied in ruling on fictitious 
 controversies. The law concerns itself with the concrete, not 
 the abstract. Parties must not only be willing, but they must 
 be able to present to the court the real facts at the time the 
 ruling is demanded. This can only be done by offering to 
 present the facts to the court by competent and proper means 
 and by means at hand. It is necessary to bring into the 
 record what the partv offers in order that the appellate tribunal 
 may obtain a clear and adequate conception of the nature and 
 effect of the ruling it is called upon to review, as well as to en- 
 able that tribunal to see that the question grows out of an actual 
 controversy. 
 
 § 743. Offers of Oral Testimony — In the examination in chief 
 the exclusion of testimony is not available as error unless the 
 party makes an offer to prove the facts which he assumes that 
 his question will elicit. Where an objection is properly inter- 
 posed more must be done, in cases where the objection is sus- 
 tained, than to ask the question ; the party producing the 
 witness and insisting upon the question must state what 
 he proposes to prove by the witness. 1 This is necessary in or- 
 
 1 Curry v. Bratney, 29 Ind. 195; First roth, m Ind. 159; Smith v. Gorham, 
 
 National Bank v. Colter, 61 Ind. 153; 119 Ind. 436. The rule as stated in the 
 
 Lewis v. Lewis, 30 Ind. 257; Adams text has been enforced in a vast number 
 
 v. Crosby, 4S Ind. 153; C hairiness v. of cases, and the decisions exhibit rul- 
 
 Chamness, 53 Ind. 301; Toledo, etc., v. iiiL, r > upon it in almost every conceiv- 
 
 Goddard, 25 Ind. 185; Farman v. Lau- able shape and form. Smethhurst t>. 
 
 man, 73 Ind. 56S; Lowder v. Lowder, 58 Independent, etc.. Church, 14s Mass. 
 
 Ind. 53S; Mcllvain :•. State. So Ind. 69; 261; Smith v. Niagara Fire Ins. Co., 60 
 
 Cox v. Dill, S5 Ind. 334; Conden v. Vt. 682; Blumhardt v. Rohr (Md.). 17 
 
 Morningstar, 94 Ind. 150; Sharpe v. Atl. Rep. 266; State v. Marker, 43 Kan. 
 
 Graydon, 99 Ind. 23J; Whitehead :•. 262, 23 Pac. Rep. 575; Snead v. 
 
 Mathaway, 85 Ind. 85; Harter v. Eltz- Tietjen (Ariz.), 24 Pac. Rep. 324;
 
 REQUESTS AND OFFERS. 699 
 
 der to enable the court to determine whether the testimony 
 is competent and material. The record must show the offer 
 and show also the presence of the witness.' The court will not 
 rule upon mere abstract questions, and hence it must appear that 
 there was an actual offer and a present ability to adduce the 
 proffered testimony. The facts proposed to be proved must be 
 specifically stated. 2 If the evidence which the appellant pro- 
 poses to introduce " rests in parol, then the witness from whom 
 the testimony is to come should be placed upon the stand and a 
 question propounded, and if objected to, and the objection sus- 
 tained," an offer should be made "as to what the witness will 
 state in answer to the question." 3 In short, there should be 
 satisfactory indications of willingness, readiness, good faith and 
 present ability. 
 
 § 744. Showing Materiality and Relevancy — If the offered testi- 
 mony upon its face, or considered in connection with evidence 
 already given, shows its materiality and relevancy, no further 
 showing is required, but where the materiality and relevancy 
 does not so appear the relevancy and materiality must be made 
 to appear. 4 This is often done by the statement of counsel 
 supplementing the offer wherein he undertakes to introduce 
 such evidence as will impress upon that offered materiality 
 and relevancy, 5 but it is discretionary with the court to accept 
 
 Mordhorst v. Neb. Tel. Co.. 28 Neb. 610, 3 Smitb v. Gorham, 1 19 Ind. 436, 439. 
 
 44 N. W. Rep. 469; Mergentheim v. * Browning v. Hight, 7S Ind. 257; 
 
 State, 107 Ind. 567, S N. E. Rep. 568; State v. Lewis, 20 New 333. 22 Pac. 
 
 Tedrowe v. Esher, 56 Ind. 443; Shellito Rep. 241; United States v. Gibert, 2 
 
 v. Sampson, 61 Iowa, 40. It is some- Sumn. (U. S.) 19; Bank of Pleasant 
 
 times necessary to accompany the offer Hill v. Wills, 70 Mo. 275; Aull Savings 
 
 by a showing of the relevancy of the Bank V. Aull, 80 Mo. 199: Jackson v. 
 
 proffered testimony. Browning v. Hardin, S3 Mo. 175, 1S7; Tru-t, 
 
 Hight, 7S Ind. 257; State v. Lewis, 20 Brooklyn Fire In How. Pr. 
 
 Nev. 333, 22 Pac. Rep. 241. But this is 44S; Abney V. Kingsland, 10 Ala. 355, 
 
 not necessary where the offer shows the S. C. 44 Am. Dec. 491; Mechelke v. 
 
 testimony to be pertinent and material. Bremer, 59 Wis. 57. 17 N. W. R< 
 
 1 Mills v. Winter, 94 Ind. 329; Echs- r Davis v. Calvert, 5 Gill. & J. 21 
 
 bach v. Hurtt, 47 Md. 61, 66; Scotland C. 25 Am. Dec. 283; Place v. Minster, 
 
 Co. v. Hill, 112 U. S. 1S3, 1S6; Smith 65N.Y.89; Williams v. Grand Rapids, 
 
 V. Gorham, 119 Ind. 436. 53 Mich. 271; Hamilton v. Summers, 
 
 'Over v. Schiffling, 102 Ind. 191; 13 B. Mon. 11. S. C. 54 Am Dec 
 
 Carskadden v. Poorman. 10 Watts. 82, Pittsburgh, etc., Co. :. Conway. 57 Ind. 
 
 S. C. 36 Am. Dec. [45. 52; First Unitarian Society V. Faulk-
 
 700 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 or reject the statement. If the court so elects 't may require 
 that evidence making that offered relevant shall be first given. 
 Ordinarily, however, the statement of counsel is provisionally 
 accepted. If not made good the course for the adverse party 
 is to move to strike out the testimony admitted upon the faith 
 of the statement. 1 The court has, of course, the right and the 
 power to require the production of such evidence as will make 
 that offered competent, 2 but the usual rule is to allow counsel 
 the privilege of introducing evidence in the order they prefer. 3 
 It is necessary for the court, in order to decide upon the com- 
 petency of offered testimony, to determine whether there has 
 been evidence given making that offered relevant and material, 
 but in so deciding the court does not intimate any opinion as 
 to the probative force of such evidence and hence does not in- 
 vade the province of the jury. 4 But while the court must, in 
 
 ner, 91 U. S. 415; Piper v. White, 56 
 Pa. St. 90; Abney v. Kingsland, 10 
 Ala. 355, S. C. 44 Am. Dec. 491 ; Carnes 
 v. Piatt, 15 Abb. Pr. R. (N. S.) 331. 
 
 1 People v. Millard, $$ Mich. 63; 
 People v. Hall, 48 Mich. 482. The 
 grounds upon which the motion to 
 strike out is based should be specifically 
 stated, and in the event that the motion 
 is denied the record must show the 
 motion with its specifications, and show, 
 also, the proper exception. 
 
 2 Village of Ponca v. Crawford, iS 
 Nil). 551, 26 N. \V. Rep. 305; Johnston 
 v. Jones, 1 Black. 209; Joslin v. Grand 
 Rapids, etc., Co., 53 Mich. 322; Marshall 
 : . Davies, 7S N. Y. 414; Chase v. Lee, 
 50 Mich. 237, 26 V W. Rep. 4S3; Wells 
 7\ Kavanaugh, 74 Iowa, 372, 37 N. W. 
 Rep. 7S0. 
 
 3 Clawson :•. Lowry, 7 Blackf. 140; 
 (>inn v. Collin-. \\ Ind. 271; Burns v. 
 Harris, 66 Ind. 536. The procedure in 
 the matter of giving evidence is largely 
 in the discretion of the trial court. 
 Holmes v. Hinkle, 63 Ind. 518; Harker 
 v. State, S Blackf. 540; Dane v. Treat, 
 
 35 Mr. 19S. 
 
 * Pedigo v. Grimes, 113 Ind. 14S; 
 
 Shugarl v. Miles. 125 Ind. 445; Cleve- 
 land, etc., Co. v. Closser, 126 Ind. 349, 
 364. "In admitting evidence tending 
 to prove a material fact the court does 
 not determine the weight or value of 
 such evidence, it simply determines 
 that the evidence shall be heard."' 
 Whitlock v. Consumers Gas, etc., Co., 
 127 Ind. 62, 64; Colglazier r.Colglazier,, 
 124 Ind. 196; Indiana, etc., Co. v. Ad- 
 amson, 114 Ind. 282; Robinson v. Ferry, 
 11 Conn. 460; Harris v. Wilson, 7 
 Wend. 57; Clicquot's Champagne, 
 3 Wall. 114; Swearingen v. Leach, 7 B. 
 Monr. 28^; Chandler v. Von Roeder, 24 
 How. (U. S.) 224,227. Where evidence 
 is competent it is the duty of the court to 
 receive it, l< -a\ ing it for the jury to de- 
 termine its weighl and value. Harbor 
 v. Morgan, 4 Ind. 158; Union, etc., Co. 
 v. Buchanan, 100 Ind. 63, 73; Laman v. 
 Crooker, 97 Ind. 163, S. C.49 Am. Rep. 
 437; Boots v. Canine. 94 Ind. 40S; 
 Nave v. Flack. 90 Ind. 205, S. C. 46 
 Am. Rep. 205; Hall V. Henline, 9 Ind. 
 256; Grand Rapids, etc., Co. v. Dillcr, 
 no Ind. 223; Bedgood v. State, 115 
 Ind. 275, 2S0.
 
 REQUESTS AND OFFERS. 701 
 
 many instances, decide a question of fact in passing upon the 
 admissibility of testimony, 1 it must, if called upon by a proper 
 request, instruct that in deciding the question of fact, it does 
 not assume to determine it for the jury. It may, indeed, be 
 error to submit purely preliminary questions to the decision of 
 the jury, such, for instance, as whether there is evidence of the 
 execution of an instrument sufficient to entitle it to be read, 2 or 
 whether there is sufficient evidence of search for a lost instru- 
 ment. 3 We say that it may be error to refer such a question to 
 the jury for decision, but we do not mean to imply that it would 
 always and necessarily be prejudicial error. We can readily 
 conceive cases where the error would not be harmful, as, for 
 instance, where the ultimate decision is made by the court and 
 the final and controlling decision is correct. If the final ruling 
 is correct the irregularity, or even error, in reaching the con- 
 clusion might not be sufficient to reverse the judgment. It is 
 nevertheless true, as a general rule, that the court can neither 
 abdicate nor delegate its functions to the jury, but while this 
 is true it does not necessarily result that because the court does 
 improperly submit preliminary questions to the jury the judg- 
 ment must fall, since whether the judgment stands or falls must 
 depend upon the conclusion ultimately made, for if finally made 
 bv the court it becomes the controlling element in the case. 
 But if it should appear that the erroneous mode pursued prob- 
 ably resulted in harm to the complaining party the judgment 
 can not stand, nor can it stand if it appears that the court 
 wholly surrendered its functions or powers to the jury. The 
 evidence of the loss of an instrument must be such as to satisfy 
 the court that a diligent search has been made in the proper 
 places, and unless there is such evidence the ruling of the court 
 rejecting secondary evidence will not be overturned. 4 It is 
 
 1 Hitchins v. Eardley, L. R.. 2 Prob. 545; Thomason v. Odum,3i Ala. ro8; 
 
 & Div. 248, S. C. .|o L. J. (Prob. ,V De Graffenreid v. Thomas, i\ Ala. 681. 
 
 Mat.) 70; Bartlett v. Smith, u Mees& ' Loewe v. Reismann, 8 Brad. (111. 
 
 W. 4S3; Tabor v. Staniels, 2 Cal.40. A.pp.) 525; Tayloe v. Riggs, 1 Pet. 591; 
 
 * Hart v, Heilner, 3 Rawle (Pa.). Graff v. Pittsburgh, etc., Co., 31 Pa St 
 
 407; Stowe V. Querner, L. R.. 5 Exch. 4S9; Witter 9. Latham. 1: Conn. 392; 
 
 155; Robinson v. Ferry, 11 Conn. 460; Donelson v. Taylor, 8 Pick. 390. 
 
 Ratliffe v. Huntly, 5 [red. Law (N. C), * Howe v. Fleming, 1:3 Ind. :6:.
 
 702 
 
 ERROR IX JUDICIAL PROCEEDINGS. 
 
 evident from what has been said, and from the authorities cited, 
 that preliminary questions of the character indicated must, as 
 a general rule, be determined by the court, and that it is suffi- 
 cient if the court is satistied of the competency of the evidence 
 adduced upon the preliminary questions. It is true that ex- 
 pressions found in some of the cases seem to indicate a different 
 rule, but it will be found on examination that in those cases the 
 question was not directly presented, and, of course, was not 
 decided. 1 
 
 § 745. Effect of miugling Competent with Incompetent Evidence — 
 
 The court is under no duty to dissect an offer of evidence and 
 separate the competent from the incompetent. If a party offers 
 evidence composed of proper and improper elements, the entire 
 offer may be rightfully rejected. The only offer upon which 
 error can be successfully alleged is one wherein no incompe- 
 tent evidence is contained. It is, no doubt, the right of the 
 court, if it so elects, to separate the competent from the incompe- 
 tent and admit the former, but it is mere matter of grace for it 
 to do so, and its refusal is not error available on appeal. 2 
 
 1 McCormick, etc., Co. v. Gray, 114 
 Ind. 340, 346; McComas v. Haas, 107 
 Ind. 512; Johnston, etc., Co. v. Bartley, 
 94 Ind. 131; Millikan v. State, 70 Ind. 
 310. It is a rudimental principle that 
 questions as to the competency of evi- 
 dence are for the court, not for the jury, 
 and in order to determine such ques- 
 tions the court must, of necessity, pro- 
 visionally, although not always finally, 
 decide questions of fact. 1 Greenleaf 
 on Evidence, § 49; Company of Car- 
 penters -•. I lay ward, 1 Douglas, 374; 
 Chandler v. Von Roeder, 24 How. (U. 
 S.) 227; Wittkowsky v. Wasson, 71 N. 
 C. 451. In the case of Thompson v. 
 Thompson, 9 Ind. 323, the court 
 quoted with approval Greenleaf s state- 
 ment that, "The evidence of loss is 
 addressed to the court and not to the 
 jury." 1 Greenleafs Evidence, § 558. 
 See, also, Carter v. Bennett, 4 Fla. 283; 
 De France v. De France, 34 Pa. St. 3S5; 
 
 Davis v. Charles River, etc., Co., 11 
 Cush. 506; Reynolds v. Lounshury, 6 
 Hill, 534; Scovell v. Kingsley, 7 Conn. 
 2S4; Pleasants v. Fant, 22 Wall. 116. 
 
 2 Shewalter v. Bergman, 123 Ind. 155, 
 156; Jones v. State, 11S Ind. 39; City of 
 Terre Haute v. Hudnut, 112 Ind. 542; 
 Pape v. Wright, 116 Ind. 502; Louis- 
 ville, etc., Co. v. Falvey, 104 Ind. 409; 
 Cuthrcll7>.Cuthrell,ioi Ind. 375; Wolfe 
 v. Pugh, 101 Ind: 293; Elliott v. Rus- 
 sell, 92 Ind. 526; Sohn v. Jervis, 101 
 Ind. 1578; Over v. Schiffling, 102 Ind. 
 191; St. Louis, etc., R. Co. v. Hen- 
 dricks, 4S Ark. 177, S. C. 3 Am. St. 
 R. 220; Smith v. Arsenal Bank, 104 Pa. 
 St. 518. The principle on which the 
 rule rests is illustrated by the case 
 wherein it was held that a motion to 
 strike out evidence embracing both 
 competent and incompetent evidence 
 may be overruled without error. Way- 
 mire v. Lank, 121 Ind. 1; Staser v.
 
 REOJJESTS AND OFFERS. 
 
 §746. Offer Unaccompanied by Interrogatory Unavailing — Tin- 
 party who desires to reserve a question upon rulings excluding 
 testimony must propound the appropriate interrogatories. Of- 
 fers where no questions have been asked calling for the testi- 
 mony will not avail on appeal. In the absence of the interroga- 
 tories the court will not consider the competency of the pro- 
 posed testimony. 1 
 
 § 747. Offer Not Required on Cross-Examination — The offer of 
 evidence is required on the direct examination, but not on cross- 
 examination. If the appropriate interrogatories are propounded 
 on cross-examination, and due exception is reserved in the 
 event that the court disallows the interrogatories, the question 
 is saved for review without an offer or statement of w r hat the 
 cross-examiner proposes to elicit. The reasons for making a 
 distinction between the direct examination and the cross-exami- 
 nation are obvious. It is unnecessary to give them since that 
 is done in the decisions of the court and the question is fully set 
 at rest. 2 
 
 § 748. Offer of Documentary Evidence — Where a document is 
 offered and excluded, it must be brought into the record in order 
 that the court, on appeal, may determine its competency. Un- 
 less the document is presented to the trial court in due form, 
 and the document and the mode of its presentation to that court 3 
 properly shown by the record, the appellate tribunal will not 
 overthrow the ruling of the lower court. 1 Where documents 
 
 Hogan, 120 Ind. 207; Pettigrew p. Bar- * Harness v. State, 57 Ind. 1; Batten 
 
 num, 11 Md. (34; Wallis t>. Randall, 81 v. State. 80 Ind. 394, 400; Heagy v, 
 
 N. Y. 164; Day p. Henry, 104 Ind. 324. State, 85 Ind. 260; llutts v. Hutts, '.2 
 
 1 Tobin v. Young, 124 Ind. 507; Ind. 214, 225; Hyland :• Milner, 99 
 
 Clanin f . Fagan, 124 Ind. 304; Vickery Ind. 308; Bedgood :■. State, 115 Ind, 
 
 v. McCormick, 117 Ind. 594; City of 275; O'Donnell v. Segar, 25 Mich. 367, 
 
 Terre Haute v. Hudnut, 112 Ind. 542, 372; Martin v. Elden, 32 Ohio St. 282; 
 
 549; Beard v. Lofton, 102 Ind. 41)8; Stanton Co. v. Canfield, 10 Neb. 389, 6 
 
 Seavey v. Walker, 10S Ind. ;S; Woolry N. W. Rep. 466. 
 
 v. Louisville, etc., Co., 107 Ind. 381; 3 Williams v. State, 127 Ind. 471. 2t> 
 
 Ralston v. Moore. 10,5 Ind. 243; Judy V E Ri 
 
 v. Citizen, 101 Ind. 18; Higham t>. Van- 'Gould v. Weed, 12 Wend. 12, 24; 
 
 osdol, 101 Ind. 160; Robinson v. State, Scripps v. Reilly, 38 Mich. 10; Keely V. 
 
 1 Lea (Term.), 673; Scotland County Newcomer, J Md.241. 
 v. Hill, 112 U. S. 1S3, 1S6; Eschback v. 
 Hurtt. 47 Md. 61, 66.
 
 704 ERROR IN JUDICIAL PROCEEDINGS. 
 
 are offered they should, in strictness, be handed to the court 
 for examination and not go to the jury in any form until the 
 court rules them competent. Counsel should not be permitted 
 to get them before the jury under pretence of reading them to 
 the court. 1 As a general rule a party can not successfully offer 
 part of an entire document, he must offer all. If the instrument 
 offered is admitted it goes to the jury, in most cases, as an en- 
 tirety. 2 
 
 § 749. Repeating Offers— Where an offer is once well made 
 there is no necessity for, nor is there propriety in, repeating it. If 
 the question is once fully and directly presented it is as effective 
 as if it were presented a multitude of times. It may sometimes 
 happen that the question sought to be saved can be presented 
 under different phases, or in different lights, and where this is 
 so it is not improper to present it in various forms. But where 
 the offer is once fully made and the question directly and ade- 
 quately presented, and there is no change of positions or condi- 
 tions, a repetition of the offer is censurable. 3 Counsel some- 
 times resort to the artifice of multiplying offers for the purpose 
 of influencing the jury, and this practice the courts have sting- 
 ingly rebuked. 4 As we have shown elsewhere, a party who 
 fully and appropriately presents a question to the court for de- 
 cision has a right to assume that the court will adhere to the 
 theory declared or indicated by its ruling, 5 so that, having once 
 obtained a ruling, he is under no obligation to again present the 
 
 1 Philpot v. Taylor, 75 111. 309,312; 147, S. C. 35 Am. Dec. 243; Bell v. 
 
 Scripps v. Reilly, 3S Mich. 10; Keedy Keefe, 12 La. Ann. 340. See, generally, 
 
 v. Newcomer, 1 Md. 241. Tomlinson v. Briles, 101 Ind. 538; Carr 
 
 * Brown v. Eaton, 98 Ind. 591, 595; V. Hays, no Ind. 40S; Olvey V. Jack- 
 Anderson v. Ackerman, 8S Ind. 481; son, 106 Ind. 2S6; Thames, etc., Co. v. 
 State v. Hawkins, 81 Ind. 486; Miles v. Beville, 100 Ind. 309; Gibson v. Lacy, 
 Wingate, 6 lUd. 458; Coats v. Gregory, 87 Ind. 202; Ashley v. Laird, 14 Ind. 
 10 Ind. 345; Foot v. Glover, 4 Blackf. 222. 
 
 313; McNutt v. Dare, 8 Blackf. 35; 3 Scripps v. Reilly, 38 Mich. 10, 14. 
 
 Jenkins v. State, 78 Ind. 133; Miller v. 4 Scripps v. Reilly, 38 Mich. 10; 
 
 Deaver, 30 Ind. 371; Miles v. Loomis, People v. Millard, 53 Mich. 63. See 
 
 75 N. Y. 2S8, S. C. 31 Am. Rep. 470; People v. Hall, 4S Mich. 482. 
 
 Machlin v. New. England, etc., Co., 33 6 Ante, § 591. 
 La. Ann. Soi; Hewitt v. Buck, 17 Me.
 
 REQJJESTS AND OFFERS. 7()5 
 
 question. The court may, of course, change its ruling, but the 
 party has a right to act upon the assumption that there will be 
 no change, and hence does not strengthen his position by re- 
 peating offers of evidence once fully ruled upon by the court. 
 45
 
 CHAPTER X. 
 
 MOTIONS FOR JUDGMENT AND INCIDENTAL MATTERS. 
 
 § 750. Introductory. 
 
 751. Motions for judgment on the 
 
 pleadings. 
 
 752. Special interrogatories to jury 
 
 — Requesting judgment on 
 the answers. 
 
 753. Special verdicts — Motions for 
 
 judgment on. 
 
 754. Effect of moving for judgment. 
 
 755. Distinct causes of action. 
 
 756. Motion essential to save ques- 
 
 tions upon special verdicts. 
 
 757. Special finding — Characteristics 
 
 and incidents. 
 
 758. The motion for a venire de 
 
 novo — The general doctrine. 
 
 759. Venire de novo — The Indiana 
 
 rule. 
 
 760. The motion for a venire de novo 
 
 as applied to a special finding. 
 
 § 761. O nice of the motion for a venire 
 de novo. 
 
 762. Time of filing the motion. 
 
 763. Requisites of the motion. 
 
 764. Special finding — Motion to 
 
 strike out. 
 
 765. Special finding — Particular 
 
 facts outside of the issues. 
 
 766. The difference between cases 
 
 where only particular facts are 
 outside of the issues and cases 
 where the whole finding is 
 outside. 
 
 767. Finding wholly outside of the 
 
 issues. 
 76S. Practice where the judgment 
 does not follow the finding or 
 verdict. 
 
 § 750. Introductory — One of the usual means employed in 
 making error available is a motion. A motion is, indeed, very 
 often essential to the existence of error, inasmuch as it is very 
 frequently the only appropriate mode of requesting a decision, 
 and, as we have shown in another place, there can be no error 
 unless there is a request to decide and a refusal to decide, or a 
 decision. Motions asking affirmative relief are really requests, 
 since they ask the court to grant an order or make a decision. 1 
 This is true of motions to make a complaint more specific, to 
 suppress a deposition, to discharge the jury, and of many more 
 motions in use in practice. But it is not our purpose to discuss 
 
 1 " This may be done upon what is parties or their counsel, in order to ob- 
 called a motion, which is an occa- tain some order cr rule of court." 3. 
 sional application to the court by the Blackst. Com. 304. 
 
 (706)
 
 MOTIONS FOR JUDGMENT. 707 
 
 at length the subject of motion^ generally. We shall confine 
 our discussion to the principal motions required to make an er- 
 roneous ruling available for the reversal of a judgment. The 
 motions here considered are those which call for a decision and 
 thus lay the foundation for alleging error. 1 
 
 § 751. Motion for Judgment on the Pleadings — A party who de- 
 sires to secure a consideration of his right to a judgment on the 
 pleadings must, as a general rule, make the appropriate motion 
 in the trial court. The motion is essential to call forth a de- 
 cision upon the particular question he desires to present on ap- 
 peal, and the motion must be such as to properly present to the 
 court of original jurisdiction the specific questions upon which 
 it is asked to give a decision. 2 The closer the adherence to the 
 rule that requests must be so framed as to fully and clearly in- 
 dicate the questions upon which a decision is sought, the better 
 the system of procedure, inasmuch as the adherence to the rule 
 advises fairly the opposite party of what he is to meet and in- 
 forms the court upon what it is expected to pronounce judg- 
 ment. 3 
 
 § 752. Special Interrogatories to Jury — Requesting Judgment on 
 the Answers — Where a general verdict is returned and answers 
 are also made by the jury to special interrogatories submitted 
 to them, the party who seeks judgment on the special inter- 
 rogatories must make the proper motion for judgment. 4 The 
 
 1 See post, "Presenting an oppor- court to consider such questions as its 
 tunitv for review." Chapter XI V. attention may he called to if they are 
 
 2 Ante, § 4S1. " Rendering judgment properly before it, but none other." 
 on the pleadings." It is. as we believe, the object of the 
 
 3 In Brown v. Jones, 125 Ind. 375, code to secure specific requests, mo- 
 25 N. E. Rep. 452, the court said: tions and objections, but it must be 
 "No specific causes for giving judg- said that our own and other courts 
 ment in favor of the appellant upon have not always so interpreted it. 
 
 the state of the pleadings were stated * Ante, ;>j { ^i.~,\~- Louisville, 
 
 in his motion, and if for no other Co.?. Stommel. 126 Ind. 35; Ohio. etc.. 
 
 reason the court might for this rea- I [.Town of 
 
 son have very properly overruled Poseyville :•. Lewis. 120 Ind. 80; Smith 
 
 the motion. The motion should have :•. Heller, 11. > Ind. 212; Chi 
 
 been drawn so as to direct the court's Co. :•. Ostrander, u<> Ind. 259; Cin- 
 
 attention to the questions -"tight to be cinnati, etc., Co. :•. Clifford, 115 Ind. 
 
 raised thereby. It is the business of the 460; RedeUheimer r. Miller, 107 Ind.
 
 7 on 
 
 ERROR IN [I DICIAL PROCEEDINGS. 
 
 motion is not, as is sometimes said, for judgment notwithstand- 
 ing the verdict, but for judgment upon the facts contained in 
 the answers of the jury to the interrogatories. The theory upon 
 which the motion proceeds, and upon which it must proceed, is 
 that the facts entitle the moving party to judgment. This they 
 can not do unless the answers are irreconcilable with the gen- 
 eral vendict. 
 
 § 753. Special Verdicts— Motions for Judgment on— A special 
 verdict must find the ultimate or inferential facts, and not mere 
 matters of evidence or mere evidentiary facts, so that where the 
 ultimate facts are not found the party who has the burden will 
 fail. 1 If, however, the ultimate facts are stated in the verdict 
 the presence of evidence, or of evidentiary facts, will not vitiate 
 it, since such matters may be disregarded and the judgment ren- 
 dered on the facts. 2 But facts must appear or the verdict will 
 
 485; Rogers v. Lejden, 127 Ind. 50; 
 Lockwood v. Rose, 125 Ind. 5SS, 25 N. 
 E. Rep. 710; Johnson v. Miller (low a), 
 ,7 N.W. Rep. 903, S. C.4S N. W.Rep. 
 1081; Smith V. McCarthy, 33 111. App. 
 17(1. Jaquay v. Hartzell, 1 Ind. App. 500; 
 Shenners p.West Side, etc., Co., 7S Wis. 
 382, 47 N. W. Rep. 622. An answer of 
 "no evidence" is not sufficient, as a 
 rule, to control the general verdict. 
 Chicago, etc., Co. r.Goyette, 32 111. App. 
 ^74. But the rule is not, by any means, 
 without exception. It can not prevail 
 where the absence of evidence is upon a 
 material point on which the party who 
 obtains the general verdict lias the 
 burden, and can not succeed with- 
 out establishing the particular fact. 
 Where the answers are radically con- 
 tradictory, they can not control the 
 general verdict. Dickey v. Shirk, 12S 
 Ind. 27S, 28] ; Graham v. Payne, 122 Ind. 
 403; Indianapolis, etc., Co. v. Lewis, 
 119 Ind. 21S; Grand Rapids, etc., Co. 
 v. Ellison, 117 Ind. 234. It is the facts 
 exhibited in the answers and not mere 
 1 of evidence that are of controlling 
 
 importance. Heiney v. Garretson, 1 
 Ind. App. Ct. 548; Louisville, etc., Co. 
 v. Hubbard, 116 Ind. 193; Schnurr v. 
 Stults, 119 Ind. 429; Louisville, etc., Co. 
 v. Wood, 113 Ind. 544; Blacker v. 
 Slown, 114 Ind. 322. See, generally, 
 Ward v. Busack, 46 Wis. 407; Louis- 
 ville, etc., Co. v. Cauley, 119 Ind. 142; 
 Manning v. Gasharie, 27 Ind. 399; 
 Evansville, etc., Co. v . Gilmore, 1 Ind. 
 App. 468. 
 
 1 Indianapolis, etc., Co. v. Bush, 101 
 Ind. 582; Vinton v. Baldwin, 95 Ind. 
 433; Chicago, etc., Co. v. Burger, 124 
 Ind. 275; Louisville, etc., Co. v. Fraw- 
 ley, no Ind. 18; Gordon v. Stockdale, 
 89 Ind. 240; Pittsburgh, etc., Co. v. 
 Spencer, 98 Ind. 1S6; Noblesville, etc., 
 Co. v. Leehr, 124 Ind. 79; Dennis v. 
 Louisville, etc., Co., n6Ind.42; Louis- 
 ville, etc., Co. v. Green, 120 Ind. 367, 
 
 375- 
 
 2 Johnson v. Putnam, 95 Ind. 57; Par- 
 mater v. State, 102 Ind. 90; Terre Haute, 
 etc., Co. f. Brunker, 128 Ind. 542; Dixon 
 v . Dukes, S5 Ind. 434; Locke v. Mer- 
 chants Nat. Bank, 66 Ind. 353; Kealing
 
 MOTIONS FOR JUDGMENT. 709 
 
 not support a judgment of recovery, inasmuch as the place of 
 facts can not be supplied by conclusions of law or matters of 
 evidence. The party who moves for judgment must, if he has 
 the burden, be able to show, from the facts stated in the ver- 
 dict, that he is entitled to judgment or his motion will fail. It 
 is evident that the party who has the burden occupies a much 
 more disadvantageous position than his adversary. The former 
 must have present all the material facts, while the latter will 
 succeed if a single controlling fact is absent from the verdict. 
 If a material fact is absent the party who has not the burden 
 may successfully move for judgment. 1 It is the office of a spe- 
 cial verdict to find and state the facts, referring to the court for 
 decision only matters of law, hence it follows that the facts 
 must be so stated that all that remains for the court is to apply 
 the law. 2 
 
 § 754. Effect of Moving for Judgment — Where the facts are ex- 
 hibited in the special verdict a party who believes himself en- 
 titled to judgment asks a decision when he appropriately moves 
 for judgment, and if his motion is denied he may, by entering 
 the proper exception, make the denial of his motion available 
 on appeal. 3 It is to be observed, however, that by moving for 
 
 v. Van Sickle, 74 Ind. 529, S. C. 39 Am. 433; Conner v. Citizens Rv. Co.. 105 
 
 Rep. 101; Woodfill v. Patton, 76 Ind. Ind. 62; Western Union Tel. Co. v. 
 
 575; Indiana, etc., Co. v. Finnell, 116 Brown, 10S Ind. 538; Louisville, etc., 
 
 Ind. 414; Louisville, etc., Co. v. Green, Co. v. Flannagan, 113 Ind. 488; Wain- 
 
 120 Ind. 367, 373; Henderson v. Dickey, right v. Burroughs, 1 Ind. App. 393; 
 
 76 Ind. 264. Louisville, etc., Co. v. Hart, 1 19 Ind. 
 
 1 Korrady v. Lake Shore, etc., Co. 273; Seward v. Jackson, S Cow. 406; 
 (Ind. Sup. Ct.), 29 N. E. Rep. 1069; Hill v. Covell, 1 N. V. ^22; Langley 
 Lake Shore, etc., Co. v. Pinchin, 112 v. Warner, 3 N. Y. 327; Eisemann v. 
 Ind. 592, 597; Rice v. City of Evans- Swan, 6 Bosw. 66S; Hallet v. Jenks, 1 
 ville, 10S Ind. 7, 11. Nothing can be Cuius Cases, 43; Thayer V. S< 
 added to a special verdict by intend- etc., 21) Pa. St. 60; Kuhlman r. Med- 
 ment. Lake Shore, etc., Co. v. Stupak, linka, 29 Texas, 385; Williams v. Wil- 
 125 Ind. 210. lis. 7 Abbott's Pr. K 
 
 2 Goldsby v. Robertson, 1 Blackf. 247; 3 In Austin v. Earhart, 88 Ind. l8a, 
 Pittsburgh, etc., Co. v. Spencer, 98 Ind. the court said: " There is no difficulty 
 1S6; Dixon v. Dukes, 85 Ind. 434; Lou- in presenting questions upon the rulings 
 isville, etc., Co. v. Balch, 105 Ind 93; of the court on special verdicts. Itmay 
 Pittsburgh, etc., Co. v. Adams, 105 Ind. be done in two ways, it' not more, 
 151; Buchanan v. Milligan, to8 Ind. namely, by moving for judgment and
 
 710 ERROR IN JUDICIAL PROCEEDINGS. 
 
 judgment he does not always accomplish the same purpose that 
 lie would do by moving that a venire dc novo be awarded. The 
 latter motion directs attention to defects or imperfections in the 
 special verdict, while the other asks judgment because the facts 
 as they appear entitle him to the judgment. Where the moving 
 party is not the one having the burden, it may, upon the princi- 
 ple stated in a preceding paragraph, be the absence of facts 
 that entitles him to judgment. 
 
 § 755. Distinct Causes of Action — Where there are two distinct 
 causes of action, the party entitled to a recovery upon the facts 
 stated in the special verdict in one cause of action may success- 
 fully move for judgment as to that cause of action. 1 It does not 
 follow that because a part)' does not succeed as to all the causes 
 of action on which he declares he fails as to the cause of action 
 on which the facts stated in the verdict entitle him to judgment. 
 It is the duty of the court, when properly requested, to render 
 judgment according to the verdict, since it is established law 
 that the judgment must follow the verdict. 2 
 
 § 756. Motion essential to save Questions upon Special Verdicts — 
 
 The appropriate motion must, as a general rule, be made by 
 one who deems himself entitled to judgment in the trial court 
 in order to save a question as to the propriety of entering judg- 
 ment on a special verdict. 3 A party who fails to present the 
 
 properly reserving an exception, and l Johnson v. Culver, 116 Ind. 278; 
 
 by excepting to the adverse party's mo- Louisville, etc., Co. V. Green, 120 Ind. 
 
 tion for judgment." To substantially 367, 363. 
 
 tin- s;vme effect are the cases of Dixon v. * It is to be understood, of course, 
 
 Dukes, 85 Ind. 434; Johnson v Culver, that the facts stated are within the 
 
 116 Ind. 278, 280; Louisville, etc., Co. issues, for facts wholly outside of the 
 
 v. Green, 120 Ind. 367, 373. In the case issues are utterly insufficient to support 
 
 last named it was said, in speaking of a a judgment. Facts beyond the issues 
 
 motion for judgment on a special ver- are to be disregarded, 
 
 diet: " This was a proper motion. The s If the one party moves for judg- 
 
 two causes of action were clearly dis- ment and succeeds, an exception by the 
 
 tinct, and if the facts found in the spe- adverse party will save the question in 
 
 cial verdict entitled the appellant to a some cases, but not in all, so that the 
 
 judgment upon the one cause of action safe plan for the party who desires to 
 
 it should have been sustained." The make a question available on appeal is 
 
 judgment was reversed for the error in to himself move for judgment. 
 denying the motion for judgment.
 
 MOTH >NS FOR Jl DGMENT. 71 1 
 
 question in that court has no question to present to the appel- 
 late tribunal for review. A question not made below as to the 
 sufficiency of a verdict, or as to the propriety of pronouncing 
 judgment upon it can not be made on appeal without violating 
 settled principles. The only doubt that can arise is as to the 
 appropriate mode of presenting such questions. 1 In the case- 
 referred to in the note there is no departure from the settled rule 
 that a party who has the burden can not recover unless the 
 facts essential to a recovery are found, but, on the contrary, 
 that rule is expressly asserted. Its application is denied be- 
 cause the verdict was imperfect and the party did not pursue 
 the proper course. He sought to secure judgment where he 
 was, at most, entitled only to a venire de novo. If he had pur- 
 sued the proper course, or if no facts had been stated in the 
 verdict a very different question would have been presented. 
 The case of which we are speaking strikingly illustrates the 
 difference between a defective finding and the absence of facts. 
 It does not assert that mere conclusions of law constitute facts, 
 but that an imperfect statement does not authorize a party to 
 treat the statement as a nullity, although the defect may be 
 such as to entitle him to have another jury called. It is well 
 settled that where the appropriate motion or objection is not in- 
 terposed in the trial court, mere imperfections or defects in a 
 
 1 In the case of Cook t>. McNaughton, now trial, but seeks to treat a general 
 i2SInd. 410, the court declared the rule finding on one issue as a nullity, lie 
 to be that: " A special verdict which insists that the finding in question i^ a 
 does not find the facts in detail can not statement of a mere conclusion of law, 
 be supported as such, it must be set and therein we think consists his error, 
 aside and a new trial awarded." But it The doctrine that a general verdict for 
 was held that as the verdict was simply a plaintiff embraces a finding in his 
 imperfect in finding upon one issue gen- favor of all the material allegations of 
 erally when it should have found the the complaint is elementary. The de- 
 facts specially, the failure of the appel- feet in the special verdict under con- 
 hint : to assail the verdict in the appro- sideration does not consist in a failure 
 priate mode precluded him from sue- to find all the facts necessary to author- 
 cessfully challenging the judgment on ize a judgmenl for the plaintiff, but it 
 appeal. It was said by the court : "In consists in finding the facts to one issue 
 this case the special verdict was re- generally and not specially. Astheap- 
 ceived without objection. No effort pellee has nol sought to have the ver- 
 was made to have the jury correct it; diet set aside for this defect, it is our 
 no motion was made for a venire de duty to give it force, if that can be 
 //<>:<>. The appellant doe-- not seek a done."
 
 712 ERROR IN JUDICIAL PROCEEDINGS. 
 
 verdict can not be made available on appeal for the reversal of 
 
 the judgment. 1 
 
 § 757. Special Finding — Characteristics and Incidents — The 
 
 finding of facts by the court is much the same as the special 
 verdict of a jury, especially where the finding of the facts is 
 not supplemented, as it is required to be in this State, by the 
 conclusions of the court as to the matters of law. 2 Where con- 
 clusions of law are added, then the whole case — law and facts 
 — is presented to the appellate tribunal upon the finding. But 
 by severing the conclusions of law from the statement of facts, 
 as may be done for some purposes, the finding of the court is, 
 in many respects, governed by the same rules as those which 
 apply to special verdicts rendered by juries. If the finding of 
 facts is defective or imperfect it is to be challenged in substan- 
 tially the same manner as a special verdict. If the finding of 
 facts is silent as to a material point, as to that point it is deemed 
 to be adverse to the party upon whom the burden of proof 
 rests. This conclusion is asserted in a great number of cases. s 
 If facts are not found which were established by the evidence 
 the proper remedy is a motion for a new trial. 4 It is one thing 
 
 1 Bohr v. Neuenschwander, 120 Ind. v. Norris, 128 Ind. 377; Kehr v. Hall, 
 
 449. In the case cited it was said: 117 Ind. 405; Fletcher v. Martin, 126 
 
 " But the question as to the defect in the Ind. 55; Citizens Bank v. Bolen. 121 
 
 verdict is not properly in the record, and Ind. 301; Nitche v. Earl, 88 Ind. 375; 
 
 therefore the appellant can not have Cincinnati, etc., Co. v. Gaines, 104 Ind. 
 
 the record corrected by this appeal. 526; Mitchell v. Colglazier, 106 Ind. 
 
 He did not move in the court below to 464; Meeker v. Shanks, 112 Ind. 207; 
 
 set aside the verdict. Nor did he ask Spraker v. Armstrong. 79 Ind. ;;;; 
 
 that a venire de novo be awarded." Stumph v. Bauer. 76 Ind. 157; Sinker- 
 
 The court cited Moore v. Reed, 1 Davis Co. v. Green, 1 13 Ind. 264; Tal- 
 
 Blackf. 177; Tardy v. Howard, 12 Ind. burtt v. Berkshire, etc., Co., 80 Ind. 434; 
 
 404; Anderson v. Donnell, 66 Ind. 150. Montmorency, etc., Co. v. Rock, 41 Ind. 
 
 - Where no conclusions of law are 263; Robinson v. Snyder, 74 Ind. no. 
 stated it is held that the finding is to be 4 First National Bank v. Carter, 89 
 
 treated as a general one. Powers v- Ind. 317; Tarkington v. Purvis. 128 
 
 Fletcher, 84 Ind. 154. Ind. 1S2; Deeter v. Sellers. 102 Ind. 
 
 3 Yerkes v. Sabin, 97 Ind. 141; Krug 458; Hamilton v. Byram, 122 Ind. 283; 
 
 v. Davis, 101 Ind. 75; Ayers v. A.dams, Bowen v. Swander, 121 Ind. 164; Louis- 
 
 82 Ind. 109; Hunt v. Blanton, 89 Ind. ville, etc., Co. v. Hart. 1 19 Ind. 273, 276; 
 
 3S; Dodge v. Pope, 93 Ind. 4S0; Quick Watts v. Julian, 122 Ind. 124; Crawford 
 
 v. Brenner, 101 Ind. 230; Stone v. v. Powell, 1 01 Ind. 42 1 ; Knox v. Trafa- 
 
 Brown, 116 Ind. 78; Town of Freedom let, 94 Ind. 346.
 
 MOTIONS FOR Jl DGMEN I' 
 
 713 
 
 to assail the finding of tarts and quite another to assail the 
 conclusions of law, as will be shown in the paragraphs that 
 follow. The finding of facts can not be successfully attacked 
 by a motion to strike out where the ground is that the finding 
 is contrary to the evidence. 1 The evidentiary facts are not to 
 be stated, but the inferential or ultimate facts must be properly 
 stated. 1 ' The presumption, in the absence of a countervailing 
 showing, is that all the material facts proved are stated in the 
 special finding. 3 Facts not mere conclusions should be stated. 4 
 The finding must state the facts with reasonable certainty. 5 
 We have given enough of the characteristics and incidents 
 of a special finding to show its close resemblance to a special 
 verdict and prepare the way for a consideration of the doctrine 
 of the applicability of motions for a venire de novo to special 
 findings, and that is all we care to do here, for in a former 
 chapter we considered the subject of requests for special find- 
 
 1 Tarkington v. Purvis, 12S Ind. 1S2; 
 Sharp v. Malia, 124 Ind. 407. See 
 Clark v. State, 125 Ind. 1; Hays v. 
 Hostetter, 125 Ind. 60. 
 
 2 Farmers, etc., Co. v. Canada, etc., 
 Co., 127 Ind. 250, 270; Cicero Tp. v. 
 Picken, 122 Ind. 260; Davis v. Frank- 
 lin, 25 Ind. 407; Kealing v. Van Sickle, 
 74 Ind. 529; Whitcomb v. Smith, 123 
 Ind. 329; Kirkpatrick v. Reeves, 121 
 Ind. 280; Wilson v. Campbell, 119 Ind. 
 286; Phelps v. Smith, 116 Ind. 3S7; 
 Bartholomew v. Pierson, 112 Ind. 430; 
 Stix v. Sadler, 109 Ind. 254; Elston v. 
 Castor, 101 Ind. 426; Perkins v. Hay- 
 ward, 124 Ind. 445; Zigler v. Menges, 
 121 Ind. 99; Smith v. Goodwin, 86 End. 
 300; Blizzard v. Riley, 83 Ind. 300; 
 Hagaman v. Moore. S4 Ind. 4.96; Col 
 trell V. Nixon, 109 Ind. 37S: Caldwell 
 v. Boyd, 109 Ind. 447; People v. Reed, 
 Si Cal. 70. 22 Pac. Rep. +74; Tyler v. 
 Waddingham, 58 Conn. 375. 8 Law. 
 Anno. Rep. 657; Smith v. Mohn, 87 
 Cal. 48,). 25 Pac. Rep. 696. 
 
 3 McLaughlin v. Ward. 77 Ind. 383; 
 
 I lavs v. Hostetter, 125 Ind. 60, 65. 
 The doctrine of the cases must neces- 
 sarilv be correct under the rule that 
 where facts established by the evidence 
 are not stated the remedy is by a mo- 
 tion for a new trial. As the settled 
 rule is that only the facts proved need 
 be stated it results that, until the con- 
 trarv appears from the evidence, it must 
 be assumed that all the facts established 
 by the evidence are contained in the 
 finding. It is, therefore, incumbent 
 upon a party who assails the finding 
 upon the ground that it does not state 
 the facts proved, to make his assertion 
 good bv the evidence. 
 
 * A.twood v. Welton, 57 Conn. 514, 
 iS Atl. Rep. 322; Ward v. Clay, 82 
 Cal. 502. 511. 23 Pac. Rep. 50; Braden v. 
 Lemmon, 127 Ind. <j. 26 N. E. Rep. 476. 
 Bui conclusions where facts are found 
 may be eliminated. Faurote 0. -State, 
 123 Ind. 6, 23 N. E. Rep. 971. 
 
 ■• Estill V. Irvine. 10 Mont. 500. j6 
 Pac. Rep. 1005; Cohn 0. Wright, S9 
 Cal. 36, 26 Pac Rep. 643.
 
 714 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ings and shall consider the subject of excepting to the conclus- 
 ions of law in a subsequent chapter which treats of exceptions. 
 
 § 758. The Motion for a Venire de novo— The General Doctrine— 
 A; common law ;i venire facias de novo "is grantable when the 
 verdict, whether general or special, is imperfect by reason of 
 some uncertainty, or ambiguity, or by finding less than the 
 whole matter put in issue, or by not assessing damages." ' It 
 was essential at common law that the verdict should respond 
 to the whole issue. This is an important element, and in dis- 
 pensing with it, as our decisions have done, it may well be 
 doubted whether a matter important to the due and effective 
 administration of justice has not been cast aside without just 
 reason. Compelling a jury to respond to all the issues prevents 
 them from evading their duty and secures a full decision of the 
 whole controversy. There is, therefore, a solid foundation for 
 the common law rule. It is difficult, we may add, to conceive 
 how the court could consistently incorporate the common law 
 rule into our svstem (for it was not incorporated by legislation), 
 and vet leave out an essential and commendable element. 
 
 § 759. Venire de novo— The Indiana Rule— Where a special 
 verdict is silent upon a material point it is regarded as against 
 the party having the burden upon that point. 2 As we have 
 seen, this is true of a special finding. It seems necessarily to 
 result from this established rule that a failure to find upon all 
 the issues is not a ground upon which a venire de novo can be 
 successfullv claimed. So it has been finally determined, al- 
 though there has been much confusion and conflict. 3 The rem- 
 
 1 2 Tidd's Pr. 9:2: Harden v. Fisher, 72 Ind. 42: Pitzer :\ Indianapolis, etc., 
 1 Wheat. 300; Fowler. Alexandria. 11 Co., So Ind. 569; Gray V. Taylor (Ind. 
 Wheat. 320; United States v. Hawkins. App.), 2S X. E. Rep. 220. 
 
 10 Pet. 12;; P>ro\vn v. Hillegas, 2 Hill s The rule as it exists in this State 
 
 V Y.). | t -; Whiter. Bailey, 14 Conn, was fully stated in the ease of Ex parte 
 
 271: Grice v. Ferguson, 1 Stew. | Ala.) Walls. 73 Ind. 95. no. In that case the 
 
 36; Middletown v. (^lu^lcy, - Halst.(N. court, in answering the point made by 
 
 j.) n ;: counsel that the finding did not em- 
 
 2 Waymire v. Lank, 121 Ind. 1; Jones brace all the issiu-s. said: " The second 
 r. Baird, 76 Ind. 164: Henderson v. proposition can not he maintained. In 
 Dickey, 76 Ind. 264; Stropes v. Board, the case of Graham r. State. 66 Ind.
 
 MOTIONS FOR JUDGMENT 
 
 715 
 
 edy where the facts established by the evidence are not found 
 is by a motion for a new trial, as in the case of a special find- 
 ing. But while our rule differs from the common law rule in 
 the respect indicated it is essentially the same in all other ma- 
 terial respects, for much as the oflice of a special verdict is re- 
 stricted by the limitation placed upon it by the doctrine that 
 its office is not to find upon all the issues, 1 but onlv to find and 
 
 386, the office of a special verdict or proof pertinent to any issue, on which 
 a special finding of facts was carefully the court ought t<> have found I 
 considered, and it was there determined the remedy is by a motion for a new 
 that the tarts to be stated in such trial." The decisions subsequent to the 
 finding or verdict were those which oik- from which we have quoted have 
 had been proved on the trial and none not been harmonious, for many of them 
 other; that if there were issues in a have yielded to the influence of the 
 case upon which no evidence was of- common law doctrine, lint they can not 
 fered, no finding should be made in be supported consistently with the es- 
 reference thereto, and that the issues tablished rule that silence operates 
 concerning which no facts were found against the party upon whom the bur- 
 should be regarded as not proved by den rests. It would have been more 
 the party on whom was the burden of consistent to have adhered to the com- 
 the issue or issues. This case has been mon law r rule from which the doctrine 
 approved and followed in several cases of a motion for a ventre de novo was 
 decided at this term. Martin :•. Cauble, taken, — fjpr our code makes no pro- 
 72 Ind. 67; Vannoy v. Duprez, 72 Ind. vision for such a motion, — but it is now 
 26; Stropes v. Board, 72 Ind. 42. There too late to go back to the common law- 
 was, before the decision of the case of rule, inasmuch as to do so would re- 
 Graham v. State, supra, some con- quire the overriding of scores of ca-es. 
 fusion on this subject. See Schmitz v. Nothing can be justly done towards 
 Laufertv, 29 Ind. 400; Cruzan v. changing the rule, for a change would 
 Smith, 41 Ind. 2S8; Dehority :. Nelson, inevitably. produce great injustice. A 
 56 [nd. 414; Whitworth v. Ballard, 56 change would require the overruling of 
 Ind. 279; Anderson :•. Donnell, 66 a great number of cases, for it would in- 
 Ind. 150, and the cases referred to. volve the cases decided upon special 
 But these cases should be deemed modi- findings, as well as those decided upon 
 fied or overruled, so far as inconsistent special verdicts. 
 
 with the doctrine now settled, that it is ' In the case of Board p. Pearson, 120 
 
 not the office of a special verdict or Ind. 426, 430, it was said: "There is 
 
 finding to find specially upon all the no imperfection in the verdict, for suf- 
 
 issues, but onjy to find the facts proven ficient facts are stated to enable the 
 
 within the issues. The inevitable cor- court to pronounce judgment, and un- 
 
 ollary proposition is that, if the special der the rule which prevails in this State, 
 
 finding or verdict is silent in reference the failure to find upon all the i- 
 
 to any issue or facts, such silence is not does not entitle a party to a venit 
 
 an omission apparent on the record novo. Wilson :•. Hamilton, 7, Ind. 71. 
 
 which can be ground for granting a Jones p, Baird, 7'' Ind. [64; Glai 
 
 venire de novo If in fact there was City of South Bend, 106 [nd. 305. 1
 
 716 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 state all the facts established by the evidence, a motion for a 
 venire de novo is often the appropriate mode of questioning the 
 sufficiency of a special verdict, for there are questions that can 
 not be appropriately presented by any other motion. While a 
 motion for a new trial is, under the doctrine established by our 
 cases, the appropriate mode of presenting the question as to 
 whether the facts are correctly found, still that mode is not al- 
 ways the proper one, inasmuch as defects and imperfections in 
 the verdict can only be reached by a motion for a venire de 
 novo. It has been held that a motion for a judgment on the 
 verdict is the appropriate remedy, 1 and this is no doubt true where 
 there is an absence of facts and the party having the burden is 
 the moving party, but this doctrine can not apply to imperfec- 
 
 1 In the case of Louisville, etc., Co. v. 
 Hart, i iglnd. 273,277, it was said: "The 
 court committed no error in overruling 
 
 Works Pr. § 971, and cases cited. This 
 has been the rule since the decision in 
 Graham v. State, 66 Ind. 386, although 
 the earlier cases declared a different 
 rule. Quill v. Gallivan, 108 Ind. 2^, 
 
 the motion for a venire de novo. The 
 verdict was not defective or uncertain, 
 
 and cases cited; Bartley v. Phillips, 114 but is clear and explicit as to the facts 
 
 Ind. 189; Indiana, etc., Co. v. Finnell, found by the jury. If itdoes not cover 
 
 116 Ind. 414. In the case of Glantz v. the issues in the case, or so far cover 
 
 City of South Bend, supra, the court them as to entitle the appellees to a 
 
 referred to Bosseker v. Cramer, 18 Ind. judgment, the question is not presented 
 
 44, and some other cases, and after by a motion for a venire de novo, but 
 
 showing that the doctrine of those cases must be presented as a reason in the 
 
 had been denied in Graham v. State, 
 supra, and that the later cases approved 
 the doctrine of that case, declared in 
 effect that the rule as stated in Graham 
 
 motion for a new trial, or by the mo- 
 tion for a motion judgment upon the 
 judgment. The question is properly 
 presented in both ways." We think it 
 
 v. State, supra, must be considered as correct to say that questions on a spe- 
 established. The effect of the decisions cial verdict may, as the case from which 
 
 has been to overrule Bosseker v. Cramer, 
 supra." Other cases assert the doc- 
 trine of Graham v. State, supra; Evans- 
 villc, etc., Co. v. Taft (Ind. App. Ct.), 
 28 N. E. Rep. 443; Citizens' Bank v. 
 Bolen, 121 Ind. 301; Wilson v. Hamil- 
 ton, 75 Ind. 71; Louisville, etc., Co. v. 
 Buck, 116 Ind. 566; Louisville, etc., Co. 
 v. Hart, 119 Ind. 273, 21 N. E. Rep. 
 7^3; Bowen v. Swander, 121 Ind. 164; 
 Mitchell v. Friedley, 126 Ind. 545, 548; 
 Trittipo v. Morgan, 99 Ind. 269.271; 
 
 we have quoted and other cases hold, 
 be presented by a motion for judgment 
 on the verdict, but we think that such 
 a motion does not serve the purpose of 
 a motion for a new trial. The one mo- 
 tion is proper where there is no ques- 
 tion made as to the correctness of the 
 finding and statement of the facts, 
 whereas the other motion, that for a 
 new trial, is, under our system, the ap- 
 propriate motion in cases where the 
 moving party desires to challenge the 
 
 Citv of Lafayette v. Allen, Si Ind. 166, finding upon the ground that it is con- 
 169. trarv to the evidence.
 
 MOTIONS FOR JUDGMENT. 717 
 
 tions or defects in form. Where the defect is in the form or 
 mode of stating the facts a very different method of procedure 
 is, as we have indicated, essential to present and save the ques- 
 tion of the sufficiency of a verdict for consideration on appeal. 
 
 § 760. The Motion for a Venire de novo as applied to a Special 
 Finding — It seems almost a perversion of language to apply the 
 term " motion for a venire de novo " to a motion directed against 
 a finding made "by a judge, but usage warrants its employment 
 as addressed to such a finding. The resemblance in essential 
 features between a special finding and a special verdict is so 
 close and strong that it is convenient to use a common term as 
 applicable to both the finding of the court and the verdict of a 
 jury. It is, at all events, quite common in this jurisdiction to 
 apply the words " motion for a venire de novo" to the motion 
 addressed to the special finding of a court. 1 What is said re- 
 specting the motion for a venire de novo in the paragraphs that 
 follow is to be taken as applicable to the motion directed against 
 special findings as well as to the motion directed against special 
 verdicts. 
 
 § 761. Office of the Motion for a Venire de novo— While the sys- 
 tem established by our decisions rejects the common law re- 
 quirement that the verdict must find upon the whole matter in 
 issue it still retains many of the essential features of the old 
 system. The object accomplished by a successful motion for a 
 venire de novo is essentially the same under our system as un- 
 der that of the common law ; the result under both systems is, 
 in effect, the same as that attained by a successful motion for a 
 
 1 In Johnson?. Hosford, no Ind. 572, lias a place in our legal terminology 
 574, the court said: "The appellee's and should not now be cast aside. Its 
 counsel are right in criticising the use meaning is well known, and its appli- 
 of the phrase 'motion for a venire de cation is often made to the findings o\ 
 novo' as applied to the special finding the courts as well as to the verdict- ot 
 of a court; but the phrase is a conveni- juries. We, however, do not think that 
 ent one, commendable on account of there are any defects in the special find- 
 its brevity, its place not easily supplied, ing that a motion for a venire ilc novo 
 and its employment is justified by gen- will reach, for it is not uncertain or 
 eral use, so that while its use i- not de- ambiguous; on the contrary, the facts 
 fensible on philological grounds, still it are full; and clearly stated."
 
 '18 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 new trial. 1 The difference is in the mode of procedure, not in 
 the end reached. A motion for a venire de novo reached a de- 
 tect in a verdict which fails to assess damages under the com- 
 mon law rule 2 and so it does under our system. 3 Where, how- 
 ever, the amount is so fully stated that only a computation of 
 interest is required to ascertain the damages awarded, amotion 
 for a venire de novo will not prevail. 1 If mere matters of evi- 
 dence and not facts are stated in a special finding a venire de 
 novo has been held to be the appropriate remedy. 5 While it is 
 true that objections to the form of a verdict or special finding 
 must be presented to the trial court in the first instance, and 
 that a motion for a venire de novo is the appropriate mode of 
 presenting the objection, 6 it is also true that the motion will 
 fail if the verdict, although defective, is sufficient to support a 
 judgment. 7 
 
 § 762. Time of Filing the Motion — The rule is that the motion 
 for a venire de novo must be filed before judgment. The filing 
 
 1 Peed v. Brenneman, 72 Ind. 2S8. 
 
 2 Kvnaston v. Mayor, etc., 2 Stra. 
 1051; Whitesides v. Russell, 8 Watts. 
 &S-44.47; Millers. I lower, 2 Rawle, 
 53; Neal v. Mills, 5 Blackf. 20S. 
 
 3 Brickley v. Weghorn, 71 Ind. 497; 
 Hershman v. Ilershman, 63 Ind. 451; 
 Ridenour v. Miller, 83 Ind. 208; Ever- 
 road v. Gabbert, S3 Ind. 489; Wain- 
 right v. Burrows, 1 Ind. App. 393. 
 
 4 Knight v. Fisher, 15 Col. 176, 25 
 Pac. Rep. 7S; Clapp v. Martin, 33 111. 
 App. 43S; Buchanan z\ Townsend, So 
 Texas, 534, 16 S. W. Rep. 315; Gaff v. 
 Hutchinson, 3S Ind. 341; Thames, etc., 
 Co. v. Beville, 100 Ind. 309. Where no 
 ilata are given in the verdict for the 
 computation judgment can only be 
 rendered for the sum stated in the ver- 
 dict. Dawson v. Shirk, 102 Ind. 1S4. 
 See Moriarty v. McDevitt, 46 Minn. 
 136, 4 S N. W. Rep. 6S4. 
 
 5 Parker v. Hubble, 75 Ind. 580; 
 Smith v. Goodwin, S6 Ind. 300; Keal- 
 
 ing v. Van Sickle, 74 Ind. 529. See 
 Jarvis v. Banta, 83 Ind. 52S. 
 
 6 Bonewitz v. Wygant, .75 Ind. 41; 
 Cottrell v. Nixon, 109 Ind. 378; Cin- 
 cinnati, etc., Co. v. Washburn, 25 Ind. 
 259; Chaplin v. Sullivan, 128 Ind. 50; 
 Roberts v. Lindley, 121 Ind. 56; Nic- 
 odemus v. Simons, 121 Ind. 564; Smith 
 v . Jeffries, 25 Ind. 376; Leeds v. Boyer, 
 59 Ind. 289; Trout v. West, 29 Ind. 51; 
 Carver v. Carver, 83 Ind. 368; Cincin- 
 nati, etc., Co. v. Clifford, 113 Ind. 460; 
 Marcus v. State, 26 Ind. 101; Locke v. 
 Merchants Nat. Bank, 66 Ind. 353. 
 
 7 State r\ Funck, 17 Iowa, 365; Ward 
 v. Thompson, 4S Iowa, 5S8; Wiggins 
 v. City of Chicago, 6S III. 372; Lincoln 
 v. Hapgood, 11 Mass. 350, 358; Merrick 
 v. State, 63 Ind. 327; Moore v. Read. 1 
 Blackf. 177; Boxley v. Collins, 4 Blackf. 
 320; Ridenour v. Beekman, 6S Ind. 236; 
 Lentz v. Martin, 75 Ind. 228; Trout v. 
 West, 21) Ind. 51; Bonewitz v. Wygant, 
 75 Ind. 41; Peters v; Banta, 120 Ind. 
 416; Berghoff?;. McDonald, 87 Ind. 549.
 
 MOTIONS FOR JUDGMENT. 719 
 
 of the motion after judgment will not avail. 1 As the motion is 
 an independent one it is necessary to reserve the proper excep- 
 tion at the time the ruling denying it is made. 2 
 
 § 763. Requisites of the Motion — It seems that good practice 
 requires that the motion should specify with reasonable cer- 
 tainty the grounds upon which it is based. The true principle 
 is that all such motions should specifically present the questions 
 sought to be made, so that the court on appeal shall not be re- 
 quired to decide any other questions than those brought before 
 the trial court. In the cases we have examined causes have 
 been specified. 3 
 
 § 764. Special Finding— Motion to Strike Out — As we have seen, 
 a motion for a venire de novo will not lie where the facts are 
 well stated, and a party who desires to present the question, 
 whether the finding is contrary to the evidence, must move for 
 a new trial and assign the proper cause in his motion. We 
 have also incidentally remarked that the decisions establish the 
 rule that ordinarily a motion to strike out part of the finding 
 will not lie, but it becomes necessary to give the subject a some- 
 what more careful consideration. The general rule that a mo- 
 tion to strike out is not a proper one may now be considered as 
 settled, 4 but how far the rule goes or what cases it governs has 
 
 1 McClintock v. Theiss, 74 Ind. 200; ceding note the grounds of the motion 
 
 Shaw v. Merchants Nat. Bank, 60 Ind. were specified. In Deatty v. Shirley, 
 
 83, 94; Deatv v. Shirley, S3 Ind. 218; 83 Ind. 21S. it was said: "The motion 
 
 Potter v. McCormack, 127 Ind. 439. itselfspecifies no objection to the verdict. 
 
 1 In Wilson V. Hamilton, 75 Ind. 71, The record tails to show that any detect 
 
 the overruling of the motion for a was pointed out to the court at the 
 
 venire de novo was specified as an in- hearing." 
 
 dependent error and the specification * Tarkington v. Purvis. 12S Ind. 1S2; 
 
 was treated as proper, and so it was in Sharp V. Malia. 124 Ind. (.07; La Fol- 
 
 Oglev. Dill, 61 Ind. 438, 441; Bonewitz lette v . Higgins (Ind.), 28 \. E. Rep. 
 
 v. Wvgant, 75 Ind. 41, and Locke v. 768; Hartlepp V. Whit.lv Ind.). 2 V 
 
 Merchants Nat. Dank, 66 Ind. 353. See E. Rep. 535. See. also, Clark v. State, 
 
 Shaw v. Merchants Nat. l'.ank. 60 Ind. 125 I,ul - L Ha y s v - Hostetter, 125 Ind. 
 
 S3. This seems the proper practice, in- 60; Wraj v. Hill, 85 Ind. 546; Levyw. 
 
 asmuchas a motion for a venire de novo Chittenden, 120 Ind. 37, 22 N. E. Rep. 
 
 is entirely distinct and different from a 92. The reporter'- note to the case of 
 
 motion for a new trial. Knox v. Trafalet, 94 [nd. J46, does not 
 
 • In the cases referred to in the pre- correctly state the point decided, for
 
 720 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 not yet been determined. Where the ground upon which the 
 court is asked to set aside its finding as to a particular fact is 
 that the fact was found against the evidence, the motion can 
 not be well taken. This we affirm for the reason that the ap- 
 propriate remedy in such a case is by a motion for new trial, 
 and the presence of the evidence in the record is necessary to 
 enable the appellate tribunal to determine whether the fact was 
 or was not correctly found. In the absence of the evidence it 
 would be impossible to determine the question. 
 
 § 765. Special Finding— Particular Facts Outside of the Issues — 
 
 The cardinal and far reaching rule that questions must first be 
 made in the trial court seems to us to require that where the 
 special finding states particular facts clearly outside of the issues 
 the general rule stated in the preceding paragraph does not 
 apply, and that a motion to strike out particular facts not within 
 the issues will lie. 1 If the illegitimate matter can not be ex- 
 cluded upon such a motion it is difficult to conceive what rem- 
 
 the court did not there decide that a 
 motion to strike out was proper, al- 
 though it decided that there was no er- 
 ror in overruling the motion. It is ev- 
 ident that the decision in that case can 
 not be regarded as authoritative, for the 
 reason that the point was not consid- 
 ered by the court. In the case of Jordan 
 v. St. Paul, etc., Co., 42 Minn. 172, S. C. 
 43 N.W. Rep. 839,6 Law. Rep. Ann. 573, 
 the court held that a motion to strike out 
 part of a special verdict was improper. 
 It was there said: "Where there is a 
 general verdict, and also special find- 
 ings, we do not think it proper practice 
 to move to set aside one of the special 
 findings upon an essential fact on the 
 ground that it is contrary to the evi- 
 dence, without asking to have a new 
 trial, either of the whole issue or as to 
 the particular fact. If such a finding 
 could be set aside on that ground leav- 
 ing the general verdict and other spe- 
 cial findings to stand, then, if setting it 
 aside would require a judgment different 
 
 from that which would be required if it 
 were retained, the setting it aside on 
 the ground stated would have the effect 
 of a trial by the court without a jury." 
 In speaking of a motion to strike out 
 part of a special verdict the Supreme 
 Court of Wisconsin said: "The two 
 findings thus challenged are within the 
 issues made by the pleadings, and are 
 material to the case. We are aware of 
 no ground upon which they can be 
 properly rejected, unless unsupported 
 by the testimony." Dahl v. Milwau- 
 kee, etc., Co., 65 Wis. 371, 374. Under 
 our practice, as has been shown, the 
 findings could not be rejected upon a 
 motion to strike out on the ground that 
 they were contrary to the evidence; the 
 remedy in such a case is a motion for a 
 new trial. 
 
 1 We are not here considering the 
 subject of a finding bodily outside of 
 the issues, but we are considering the 
 subject of particular facts beyond the
 
 motions FOR JUDGMENT. 72] 
 
 edy can be pursued without defeating the chief object which a 
 special finding is intended to accomplish. It is certainly true 
 that one of the principal objects a special finding was designed 
 to accomplish is to enable parties to bring their cases to the 
 appellate tribunal without the evidence. The evidence, it is 
 manifest, can not give any light upon the question whether a 
 particular fact is or is not within the issues, for such a question 
 must be determined from the pleadings. It is equally clear 
 that facts outside of the issues should not be considered. If 
 such facts are contained in a special finding and are influential 
 their presence is wrongful, and if their presence is wrongful 
 they should be expelled. The familiar rule that only evidence 
 pertinent or relevant to the issue is competent necessarily re- 
 quires that particular facts not within the issues should be re- 
 jected in cases where the appropriate attack is made upon them, 
 and we can not perceive how it can be more appropriately made 
 than by a motion to set aside or strike out. A finding may be 
 in due form, clear and explicit, and, if so, a motion for a venire 
 de novo would be unavailing, so that the motion to strike out par- 
 ticular facts beyond the issues seems the only direct and effective 
 mode of getting rid of the illegitimate facts. It must be true that 
 the objection that particular matters are outside of the issues may 
 be presented by a motion to strike out or else it must be true that 
 the question must be presented by a motion tor a new trial, 
 and, as such a motion would necessitate an exhibition of evi- 
 dence and rulings thereon, to require it would defeat the pur- 
 pose of the law providing for special findings and uselessly 
 cumber the record and put parties to needless expense. A mo- 
 tion to strike out a particular fact can be determined from the 
 record proper, and, in truth, must be determined from that 
 record, that is, from the pleadings and the special finding. The 
 motion designated is not encumbered by useless appendages, 
 and is appropriate and efficacious. We have here considered 
 the question of a motion to strike out a particular fact, and have 
 not considered the question of procedure where the finding is 
 entirely outside of the issues ; that is, as we conceive, quite a 
 different question. A motion to strike out a particular fact 
 where some of the facts are within the issues, but the particular 
 46
 
 -j22 ERROR IN Jl DICIAL PROCEEDINGS. 
 
 fact wholly without, is a very different thing from a motion to 
 strike out facts contained in a special verdict, for a motion to 
 strike out a particular fact contained in a special finding asks 
 the court to review its own action, not that of the jury. It is 
 unquestionably settled that while proceedings are in fieri, a 
 court may correct its own mistakes, and we can not perceive 
 why this rule does not apply to a motion to strike out a particu- 
 lar fact outside of the issues where some of the facts are within 
 the issues joined upon the pleadings. We do not say that a 
 court may change its decision upon a question of fact without 
 Granting a new trial as to the whole case. What we do say is 
 that it may change a ruling by striking out a particular fact 
 beyond the issues carried into a finding containing facts within 
 the issue. 
 
 § 766. The difference between Cases where only Particular Facts 
 are outside of the Issues and Cases where the Finding is Wholly 
 Outside — In the preceding paragraph we alluded in general 
 terms to the fact that there is a difference between cases where 
 the special finding is altogether and entirely outside of the 
 issues and cases where only a particular fact is outside. The 
 difference is an important one and requires consideration. If a 
 particular fact is stated which is clearly outside of the issues, 
 the error in stating it can not be reached by exceptions to the 
 conclusions of law, nor by a motion for a venire de novo. If a 
 motion for a new trial must be resorted to, a proceeding clearly 
 not contemplated by the law is required, and one, as we have 
 shown, which will uselessly encumber the record. That a 
 party can not declare upon one cause of action, or set up one 
 defence and succeed upon another, is, of course, perfectly 
 clear, so that where the facts are wholly outside of the issue, it 
 is, in legal contemplation, as if there were no facts at all in the 
 record. Thus, if a party should sue for a breach of contract 
 and the facts stated should show a right to damages for a per- 
 sonal injury, such facts would be of no avail for any purpose 
 whatever. In such a case it would be appropriate to move for 
 judgment or to except to adverse conclusions of law, for there 
 would not be facts upon which valid conclusions could be stated 
 or a valid judgment rendered. In a case like that supposed 
 (an extreme one, but extreme cases best serve for illustrations);,
 
 MOTIONS FOR J1 DGMENT. 
 
 the conclusions and judgment in favor of a plaintiff would be ab- 
 solutely foundationless. But where part of the facts are within 
 the issues and part without, it is radically different. Thus, if a 
 plaintiff should sue on a promissory note, and the court in ad- 
 dition to stating legitimate matters concerning the note should 
 state facts showing a right of action for damages for per- 
 sonal injury, the facts concerning the injury ought to be elimi- 
 nated. In no mode could they be more appropriately or effica- 
 ciously eliminated than by a motion to strike out. It is possi- 
 bly true that where illegitimate facts are injected into a special 
 finding, a motion to modify the judgment based in part upon 
 such facts would be proper, but even if it would be, the better, 
 shorter and more appropriate remedy is the motion to strike 
 out the particular facts not within the issues. 
 
 § 767. Finding Wholly Outside of the Issues — Where the special 
 finding is entirely outside of the issues, the question as to the 
 right of recovery may be presented by a motion for judgment, 
 or, according to the decisions in some of the cases, by a proper 
 exception to the judgment. 1 But the safer practice in such a 
 case for the unsuccessful party is to move for judgment, or, ac- 
 cording to some of the decisions, to except to the conclusions of 
 law. It is certainly consistent with the cardinal principle that 
 objections must be first presented to the trial court, to move for 
 judgment where the facts are entirely outside of the issues. 
 One of the cases upon the general subject, while inferentially, 
 if not expressly, holding that a motion for judgment is proper, 
 
 1 In Boardman v. Griffin, 52 Ind. of the expressions of the opinion are 
 
 101, the court reversed the judgment, not erroneous, inasmuch as they seem 
 
 holding that the facts contained in the to indicate that the question may he first 
 
 special finding were entirely outside of made on appeal. If the ease is to be re- 
 
 the issues. It was said in the course of garded as declaring that such question 
 
 the opinion that : " When the trial of can he fust made on appeal.it is to that 
 
 a cause is by the court, instead of a extent not well decided. That the special 
 
 jury, whether the court is required to finding must he confined to the is-ucs 
 
 find the facts specially or not.it can is well settled. Neisler v. Harris, 115 
 
 not, any more than a jury can, go out- Ind. 560, 565; Bixel v. Bixel, 107 Ind. 
 
 side of the i-sues. In such cases, as 534, 537; Louisville, etc., Co. V. God- 
 
 well as in others, the parties must re- man, m| Ind. 40,0, 494; Hasselman V. 
 
 cover upon the allegations of the plead- Carroll, 102 Ind. 153; Cleveland, etc., 
 
 ings." That the case from which we Co. Wynant, mo Ind. 160; Palmer v, 
 
 have quoted asserts a correct conclusion Chicago, etc.. Co., n: Ind. 250 
 is clear, but it is not so clear that some
 
 724 ERROR IN JUDICIAL PROCEEDINGS. 
 
 erroneously disregards this fundamental principle, inasmuch as 
 it seems to authorize the Conclusion that the question may be 
 first made on appeal. In some of the cases it is held that the 
 question as to the right of recovery in a case where the theory of 
 the complaining party is that the finding is wholly outside of the 
 issues may be presented by exceptions to the conclusions of law. 1 
 It is, perhaps, safe to say that the remedies are cumulative, 
 although it seems to us that where the finding is altogether beyond 
 the issues, the more appropriate remedy is a motion for judgment 
 In such a case there is not simply an error in the conclusions 
 of law upon the facts, but an error in stating facts which the 
 issues do not embrace. As the facts are not within the issues 
 their statement is utterly futile. If without the issues, the facts 
 can not be used as the basis of a judgment, for a finding of facts 
 outside of the issues is a nullity. 2 If such facts are nullities, 
 they can not be regarded, much less can they support a re- 
 covery. In the case of erroneous conclusions of law upon facts 
 within the issues, the error, where there is error, in stating con- 
 clusions of law, is radically and essentially different from the 
 error in stating conclusions upon matters that ought not to have 
 
 1 Thomas v. Dale, 86 Ind. 435, and no conceivable reason why a motion 
 cases cited. See, also, Arnold v. An- for judgment is not appropriate where 
 gcll, 62 N. Y. 508; Town of Cicero v. all the material facts are outside of the 
 Clifford, 53 Ind. 191, 192. issues. Some general expressions in 
 
 2 In Brenner v. Bigelow, S Kan. 496, Cruzan v. Smith, 41 Ind. 2S8, seem to 
 510, the court said: " With regard to indicate a different doctrine, but the 
 
 •the findings of the court, it seems question was not before the court, and, 
 scarcely necessary to say that such of of course, not authoritatively decided, 
 the facts as are not founded upon any It is to be said of Cruzan v. Smith, 
 issue or issues made by the pleadings supra, that it has been disapproved 
 are mere nullities. The court can not upon many points. Anderson v. Don- 
 go outside of the issues to make find- nell,66 Ind. 150, 159; Robinson v. Sny- 
 ings. Every finding that is outside of der, 74 Ind. no; Lockwood v. Dills, 74 
 the issues must be disregarded. And Ind. 56. The case of Peden v. King, 30 
 v, e suppose it is hardly necessary to say Ind. 1S1, does not consider or decide the 
 that the court can not find against the question under discussion, for in that 
 facts as admitted by the pleadings." case no such question was presented. 
 This doctrine is explicitly approved All that is there decided is that excep- 
 in Mays v. Foster, 26 Kan. 518, and tions must be taken to the conclusions 
 New by v. Myers, 44 Kan. 477. If of law where the error is in applying 
 facts beyond the issues are to be disre- the law to the facts. There is no allu- 
 garded as mere nullities, — and this is sion to the case of a finding of facts 
 required by settled principles, — there is whol'y outside of the issues.
 
 MOTIONS FOR JUDGMENT, 725 
 
 come into the record and can not be the basis of a judgment of 
 recovery. The cases where the facts stated are wholly without 
 the issues, and cases where the facts are within the issues, but 
 the conclusions of law stated on them are erroneous, should be 
 carefully discriminated, for there is a radical difference in the 
 procedure. Where the facts stated are within the issues and 
 the conclusions of law erroneous, the objection must, as will be 
 more fully shown hereafter, be taken by excepting to the con- 
 clusions of law. Where the error is in stating the conclusions 
 of law and not in stating the facts, neither a motion for a new 
 trial nor for judgment is appropriate or effective, nor, it may be 
 added, is a motion for a venire de novo} 
 
 § 768. Practice where the Judgment does not follow the Finding 
 or Verdict — Where the judgment does not follow the finding or 
 verdict, the proper practice is to move to modify, correct or 
 amend the judgment. It is probable, it is, perhaps, safe to 
 say, that if the judgment entirely departs from the finding or 
 verdict a specific exception to the judgment would present the 
 question, but it is always safer to move to correct, modify or 
 amend. This is certainly necessary where the judgment is 
 valid in part and does not wholly depart from the finding or 
 verdict. 2 
 
 1 This general subject is considered unless proper steps have been taken by 
 
 in the chapter on " Exceptions," post, objection duly presented to the trial 
 
 See Midland Ry. Cd. v. Dickason, 29 court to secure a modification or amend - 
 
 N. E. Rep. 775; Hull v. Louth, 109 Ind. ment by amending or rejecting the part 
 
 315, Western Union Tel. Co. f.Trissal, which is wrong." The cases of Baj 
 
 98 Ind. 566. v. Glenn, 72 Ind. 5; Teal :■. Spangler, 
 
 * In the case of Peoples, etc., Asso- 72 Ind. 3S0, and Becknell v. Becknell, 
 
 ciation v. Spears, 115 Ind. 297, 300, it HO Ind. 42, were- cited. It is proper to 
 
 was said: " In case the judgment tails say of the ease of People's, etc., Asso- 
 
 to follow the finding, it may be cor- ciation v. Spears, supra, that the inci- 
 
 rected, modified or amended, on motion dental reference to the common law 
 
 for that purpose. (.Juestions on such doctrine that a verdict must respond to 
 
 motions an- saved by a bill cf excep- the whole issue or a venire </<■ novo 
 
 tions. Forsvthe V. Kreuter, 100 Ind. will he awarded can not be regarded as 
 
 27; Adams v. La Rose, 75 1ml. 471." a denial of the rule declared in Graham 
 
 The court in the ease first named also y. State, 66 liul. 386, and reaffirmed in 
 
 quoted with approval from a former many other ea>e>, for the question was 
 
 decision the following: "Where any not before the court for decision, 
 part cf a judgment is valid, it will stand
 
 CHAPTER XL 
 
 OBJECTIONS. 
 
 t) 7 6 9- 
 
 770. 
 77i- 
 
 773- 
 
 774- 
 
 775- 
 
 The difference between objec- 
 tions and exceptions. 
 
 Objections must be specific. 
 
 The grounds of the objection 
 must appear of record. 
 
 Objections must be seasonably 
 interposed. 
 
 The objection must come from 
 the proper party. 
 
 Practice where evidence is com- 
 petent against one party but 
 not against other parties. 
 
 Grounds of objection should all 
 be stated. 
 
 § 776. Jurisdictional objections. 
 
 777- Objections to pleadings. 
 
 778 Objecting to jurors. 
 
 779. Specifying objections to evi- 
 dence. 
 
 7S0. Separating competent from in- 
 competent evidence. 
 
 781. Practice where the question is 
 
 proper but the answer incom- 
 petent. 
 
 782. Specification of objections to 
 
 conduct of parties and coun- 
 sel. 
 
 § 769. The difference between Objections and Exceptions— An 
 
 objection precedes an exception. 1 The office of the objection 
 is to present to the trial court the specific grounds upon which 
 the court is asked to act in giving a decision, so that the court 
 may be fully informed as to the reasons for the ruling sought 
 by the objecting party. This is the office of the objection in 
 the trial court, but its office in the appellate tribunal is to there 
 present the precise questions that were presented to the trial 
 
 1 In the case of Brownlee v. Hare, 64 
 Ind. 311, 318, it was said: "The record 
 fails to show that the court, in terms, 
 overruled these objections, or that the 
 appellant excepted to any such decision. 
 An objection is not an exception in any 
 legal sense. An objection may not be 
 insisted on; if overruled or sustained 
 the party aggrieved by such ruling must 
 except thereto at the time, in the mode 
 prescribed by law, or he can not after- 
 wards complain of it. It is firmly set- 
 
 (7 
 
 tied by the decisions of this court, that 
 unless an exception is taken and entered 
 in the record, at the time and in the 
 manner prescribed by the statute, the 
 objection will be waived." The state- 
 ments of the court in the extract we 
 have quoted show one particular — and 
 an important one — in which an excep- 
 tion differs from an objection, but they 
 do not show all the particulars in which 
 it differs as is evident from what is said 
 in the text. 
 
 26)
 
 OBJECTIONS. 
 
 court, as well as to inform that tribunal of the specilic grounds 
 upon which the party asks a favorable decision. The oilice of the 
 objection in the trial court is to direct attention to specilic points 
 and request a ruling upon them, but its office in the appellate 
 tribunal is to direct attention to specific points and to prevent 
 the party from making points in the appellate tribunal that 
 were not ruled upon by the trial court. It is evident, there- 
 fore, that an objection well made serves a double purpose 
 on appeal. An exception is not required to present specific 
 grounds or reasons upon which a ruling is asked, for an 
 exception follows the ruling, while an objection precedes it 
 and lays the foundation for the exception. As the objection 
 constitutes the foundation for the exception it must be sufficient 
 in form and substance to support the exception, for without 
 such support the exception is destitute of strength. The excep- 
 tion does not present reasons or grounds as the objection does, 
 but it directs attention to the objection and fastens it. The ex- 
 ception, one may say, clinches the objection. 1 But the principal 
 purpose of an exception is to save a question upon an adverse 
 ruling for review on appeal. So far as the trial court is con- 
 cerned the exception is of very little practical utility as com- 
 pared with its office on appeal, although in some of the early 
 discussions on the code system it is treated as affording the 
 trial court an opportunity to review and correct its own ruling. 
 It is, however, true that an exception is in some instances of 
 practical use in the trial court, for where a ruling upon an ob- 
 jection is not supplemented by an exception the objection is, as 
 the case referred to in the opening sentence of this paragraph 
 decides, effectually waived. If, therefore, a party does not 
 follow an objection by the appropriate exception, the doctrine 
 of waiver will operate against him. This is essentially true in 
 cases where a review of a judgment is sought, for a ruling upon 
 a question of law can not be reviewed unless the objection was 
 supplemented by the proper exception.- As we have touched 
 
 1 United States v. Breitling, 20 How. ford, 21 Ind. 156; American Ins. 
 (U. S.) 252. v. Gibson, 104 Ind. 336. In the case 
 
 2 Train v. Gridley, 36 Ind. 241; Da- last named the doctrine of reviewing 
 vidson v. King, 51 Ind. 224; Goar v. judgments is well stated. The court said: 
 Cravens, 57 Ind. 365; Preston v. San- " The rules which govern in actions to
 
 728 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 upon the subject of proceedings to review a judgment it may 
 not be improper to say, although at the expense of a slight di- 
 gression, that where objections and exceptions are necessary 
 to make error available on a bill to review, the objections and 
 exceptions must be legitimately brought into the record. 1 
 
 § 770. Objections must be Specific — Theoretically the rule that 
 objections must be specific is universal but practically it is only 
 general. It is, however, a general rule of wide sweep and un- 
 
 review are, in the main, the same that 
 govern in an appeal to this court. The 
 errors that may be made available in an 
 action to review are those that may be 
 made available upon an appeal. Rice 
 v. Turner, 72 Ind. 559; Richardson v. 
 Howk, 45 Ind. 451; Tachau v. Fiedel- 
 dey. Si Ind. 54; Indiana, etc., Co. v. 
 Routledge, 7 Ind. 25; Hardy v. Chip- 
 man, 54 Ind. 591. It has been uniformly 
 held that if no objection be made to the 
 judgment and no motion made to mod- 
 ifv it in the trial court, no objection can 
 be made available upon appeal, nor in 
 an action to review, however erroneous 
 the judgment may be. This rule has 
 been applied even where the judgment 
 was rendered by default. Barnes v. 
 Wright, 39 Ind. 293; Darlington v. 
 Warner, 14 Ind. 449; Searlc v. Whip- 
 perman, 79 Ind. 424; Barnes v. Bell, 39 
 Ind. 32S; Baldwin v. School City of Lo- 
 gansport, 73 Ind. 346; Ludlow v. Walk- 
 er, 67 Ind. 353; Johnson v. Prine, 55 
 Ind. 351; Evans v. Fceny, Si Ind. 532; 
 McCormick v. Spencer, 53 Ind. 550; 
 Smith v. Tatman, 71 Ind. 171; Powers 
 v. Johnson, 86 Ind. 29S; Forgey v. First 
 National Bank, 66 Ind. 123; Buchanan 
 v. Berkshire Life Ins. Co., 96 Ind. 
 510." It is held in Berkshire v. Young, 
 45 Ind, 4.61, that where a complaint en- 
 tirely fails to state a cause of action, a 
 bill of review will lie, although there is 
 no demurrer or exception, and in other 
 cases this general doctrine is asserted. 
 Emmett v. Yandes, 60 Ind. 548; David- 
 
 son v. King, 49 Ind. 33S. In Berkshire 
 v. Young there is an attempt to dis- 
 criminate between that case and some 
 of the earlier cases, but it is to be 
 doubted whether the doctrine is not 
 wholly unsound. In later cases much 
 of the reasoning in Berkshire v. Young 
 has been completely overthrown. Searle 
 v. Whipperman, 79 Ind. 424, 42S; 
 Tachau v. Fiedeldey, 81 Ind. 54, 62. It 
 is in conflict in many respects with such 
 cases as Jordan v. De Heur, 71 Ind. 
 199, and Teal v. Spangler, 72 Ind. 380. 
 The case of Emmett v. Yandes, supra y 
 is directly overruled. Scarlett v. Snod- 
 grass, 92 Ind. 262, 265; Shoaf v. Joray, 
 S6 Ind. 70. Where there is no general 
 jurisdiction of the subject, the bill will 
 lie, as it has been held, although there 
 was no exception. Davis v. Perry, 41 
 Ind. 305; Anderson v. Anderson, 65 
 Ind. 196. 
 
 1 In Gates v. Scott, 123 Ind. 459, 462, 
 it was said: "The error, in this re- 
 spect, is not properly presented. A re- 
 view can only be had for such error as 
 would have been available in the Su- 
 preme Court on appearand to have made 
 the ruling on motion for new trial availa- 
 ble on appeal it would have been neces- 
 sary to have filed a bill of exceptions 
 within the time allowed; and it does not 
 appear that any bill of exceptions was 
 ever prepared, signed or filed. Rigler 
 v. Rigler, 120 Ind. 431; Baker v. Lud- 
 lam, 118 Ind. 87."
 
 OBJECTIONS. 729 
 
 usually free from exceptions. Where it is not entirely clear 
 that the particular case constitutes an exception it is sate to as- 
 sume that the rule prevails and that the grounds of the objec- 
 tion must be specifically stated. 1 Specification of the particu- 
 lar grounds or reasons upon which a party asks the court to 
 make a ruling in his favor is necessary, as indicated in the 
 preceding paragraph, to prevent a violation of the settled rule 
 that parties must abide by the theories assumed in the trial 
 court, and also to prevent a violation of the subsidiary doctrine 
 that a party can not urge one point in the trial court and an- 
 other on appeal. 2 It is also necessary to prevent a violation of 
 the wider doctrine than either of those stated, that is, the funda- 
 mental doctrine that appellate jurisdiction is one of review. 
 But there is still another reason why the grounds of objection 
 should be specifically stated, and that is this: Common fair- 
 ness to the adverse party requires specification, inasmuch as it 
 is but just that he should be informed of the real nature and 
 full force of the objections which he is required to meet and 
 given an opportunity to obviate them. It is evident that speci- 
 fication is important for many reasons and that the rule requir- 
 ing it is not justly subject to the censure sometimes passed upon 
 it bv the courts. It is not a mere technical rule but one re- 
 quired by sound reason and supported by principle. The as- 
 sertion that the rule is technical is as foundationless as the old 
 
 1 As the subject of this chapter is un- Manhattan Ry.Co.. 125 N.Y.697; Ad- 
 folded the correctness and importance ams v. Irving Nat. Hank, ti6 N.Y.606; 
 ofthe statement of the text will become State v. Watson. 81 towa, 380, 46 X.W. 
 almost self-evident. It may, however, Rep. S6S; Portoues v. Holmes, 35 111. 
 be well enough to here refer to some of App. 312; Chicago, etc., Co. v. Nix 
 the cases which illustrate and enforce (111.), 27 N. E. Rep. Si; Furguson :•. 
 our statement. Lewis v. New York, United States, etc., Co., n N. Y. Supp. 
 etc., Co., 123 N. Y. 496, 26 V E. Rep. 738; Carter v. Bennett, 1 Fla. 283, 337; 
 357; Saxon v. Boyce, 1 Bailev (So. Smith v. White, 5 Dana, 376. 
 Car.), 66; State v. Hope, 100 Mo. 547,8 * Rush v. French, i Ariz. Ty. 99, 124; 
 Law. Rep. Anno. 608, and note; Shafer Manning v. Gasharie, 27 Ind. 
 O.Ferguson, 103 Ind. 90, and cases cited; Wakeman v. Jones, 5 End. 454; Hyatt 
 Young v. Martin. 8 Wall. 354; City of v. Clements, 65 Ind. 12; Evans f. State, 
 Delphi v. Lowery, 74 Ind. 520. S.C.39 67 Ind. 68; Betson v. State. 47 Ind. 54; 
 Am. Rep. 98; Ostrander v. Weber, u \ Bowers v. Bowers, 53 Ind. 430; Grant 
 N. Y.95, 21 N. E. Rep. 112; Post v. v. Westfall, 57 Ind. 121.
 
 730 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 cry that the "rules of logic are the breeders of disputatious 
 nothings." 
 
 § 771. The Grounds of the Objection must Appear of Record — It 
 
 is necessary that the specific grounds of an objection should be 
 appropriately incorporated in the record. 1 Many of the rea- 
 sons given in the preceding paragraphs support the conclusion 
 here asserted. There is, however, another cogent reason which 
 gives it support and that is this : The appellate tribunal can 
 
 1 In the case of Camden v. Doremus, 
 3 How. (U. S.). si 5. 529, the court used 
 this language: " With regard to the 
 manner and the import of this objec- 
 tion, we would remark, that they wore 
 of a kind that should not have been 
 tolerated in the court below pending 
 the trial of the issue before the jury. 
 Upon the offer of testimony, oral or 
 written, extended and complicated as it 
 may often prove, it could not be ex- 
 pected upon the suggestion of an ex- 
 ception, which did not obviously cover 
 the competency of the evidence, nor 
 point to some definite defect in its char- 
 acter, that the court should explore the 
 entire mass for the ascertainment of de- 
 fects which the objector himself either 
 would not or could not point to their 
 view. It would be more extraordinary 
 still, if, under the mask of such an ob- 
 jection, or mere hint at objection, a 
 party should be permitted to spring 
 upon his adversary defects which it did 
 not appear he ever relied on, and which, 
 if they had been openly and specifically 
 alleged, might have been easily cured. 
 'Tis impossible that this court can de- 
 termine, or do more than conjecture, 
 as the objection is stated in the record, 
 whether it applied to form or sub- 
 stance, or how far. in the view of it 
 presented to the court below, if any 
 particular view was so presented, the 
 court may have been warranted in 
 overruling it. We must consider ob- 
 jections of this character as vague and 
 
 nugatory, and, if entitled to weight 
 anywhere, certainly without weight be- 
 fore an appellate tribunal." Very simi- 
 lar is the language used by the court in 
 the case of Russell v. Branham, 8 
 Blackf. 277. " We are not informed by 
 the record," said the court in that case, 
 " what the particular objection was, 
 and we can not, therefore, notice it. 
 The defendants should have informed 
 the circuit court of the ground of their 
 objection, and when their motion was 
 overruled, they should have taken care 
 to have had such ground of objection 
 made a part of the record." In speak- 
 ing of the rule declared in the case last 
 named, it was said, in City of Delphi v. 
 Lowery, 74 Ind. 520, 522, that: " This 
 doctrine has, by a long and unwavering 
 line of decisions, been ingrained into 
 our system of procedure as one of its 
 fundamental principles. The party 
 must state specifically his grounds of 
 objection, and the bill of exceptions 
 must exhibit them as stated. Unless 
 this rule is adhered to we would often 
 have cases where one ground of objec- 
 tion was stated in the court below, and 
 another and different one urged on ap- 
 peal." In Bingham v. Walk, 12S Ind. 
 [64, 173. it was said: "To permit the 
 appellants to shift their grounds of ob- 
 jections would be grossly unfair and con- 
 trarv to the rules established by this 
 court." Citing Ohio, etc., Co. V. Walk- 
 er, 113 Ind. 196; Fitzpatrick v. Papa, 
 89 Ind. 17.
 
 OBJECTIONS. 7,31 
 
 consider only such matters as are properly of record and as to 
 that tribunal a matter not of record has practically no exist- 
 ence. It is true that in many instances, as, for illustration, in 
 rulings upon demurrers to pleadings, the grounds of objection 
 appear in the record proper, but it is nevertheless very often 
 true that they must be exhibited by a bill of exceptions. Where 
 the record proper exhibits them no bill is required, but where 
 they are not so exhibited a bill, or its equivalent where provis- 
 ion is made by statute for its equivalent, is indispensably nec- 
 essary to exhibit the specific objections alleged in the trial 
 court. The rule is clear and strong that the specific objections 
 must appear in the record as the law requires. 1 The question 
 as to the sufficiency of an objection, as well as to the sufficiency 
 of its exhibition by the record, generally arises in cases where 
 objections are alleged to the admission of evidence, but the 
 rule is by no means confined to such cases. 
 
 § 772. Objections must be Seasonably Interposed — In strictness 
 an objection must be made at the time action is asked of the 
 court or proposed by it. 2 This is true for a reason we shall 
 here allude to, and not simply because of the general doctrine 
 that parties must act with promptness and vigilance, although 
 that doctrine is not without influence. The reason to which we 
 refer is that an exception must, as a general rule, immediately 
 follow the ruling. If other rulings or decisions intervene the 
 exception is, ordinarily, ineffective. The subject here alluded 
 
 1 United States v. Mc Master-;, 4 Wall, 354: McCormick v. Laughran, 16 
 
 6S0; Burton v. Driggs, 20 Wall! [25, 87; Crabs v. Mickle, 5 Ind. 145; Har- 
 
 133; Maysv. Fritton, 20 Wall. 414, 418; rison v. Young, 9 Ga. 359, 366. Where 
 
 Gharkey v. Halstead, 1 Ind. 389; Curry evidence is admitted a motion to strike 
 
 v. Bratney, jo Ind. 195; Rosenthal v. out may, where there is reason for the 
 
 Chisum, 1 New. Mex. 637; Fischer v. delay, be made before the close o( the 
 
 Neil, 6 Fed. Rep. 89. evidence. Miller v. Montgomery, 78 N. 
 
 1 The general rule is that a party Y. 282; Judge of Probate v. Stone, 44 N. 
 
 must avail himself of the first reasona- II. 593; Selkirk v. Cobb, 13 Gray. 313. 
 
 ble opportunity. Maxwell v. Hannibal, But this practice is not regarded with 
 
 etc., Co., S5 Mo. 9:;; Bull v. Common- favor, nor can such a motion be made 
 
 wealth, 14 Gratt. 613; Price v. Com- as a matter of right Gilmore v. Pitts- 
 
 monwealth, 77 Va. 393; Harvey v. State, burgh, etc., Co., to) Pa. St. 275; Gaw- 
 
 40 Ind. 516; State : . Peak, 85 Mo. [90; try v. Doane, 51 N. Y. 84, 90. 
 Atchison, etc., Co. V. Stanford. (2 Kan.
 
 732 ERROR IN JUDICIAL PROCEEDINGS. 
 
 to will be considered at another place, but it seems necessary 
 to refer to it here in order to make our meaning clear. 
 
 § 773. The Objection must come from the Proper Party — It is 
 quite clear that an objection alleged by a party not entitled to 
 interpose it is valueless. 1 Thus, a party can not object to evi- 
 dence which does not affect him in any manner, although it 
 may affect other parties to the suit or action. The general doc- 
 trine stated finds its most frequent and, perhaps, most important 
 practical exemplification in objections to evidence made by two 
 or more parties where it is valid only as to one. It has been 
 held in numerous cases that an objection by two or more parties 
 is unavailing in cases where the objection is valid only as to 
 one of the parties. The rule that an objection by parties jointly 
 where it is good as to only one is unavailing is an elementary 
 one and runs throughout the whole system of procedure. It 
 prevails in the assignment of errors, in motions of almost every 
 class, in the filing of demurrers, in motions for judgment, and 
 in exceptions to special findings. 2 
 
 § 774. Practice where Evidence is Competent against One Party 
 bnt not against Other Parties — Where evidence is competent as 
 against one of the parties it can not, of course, be entirely ex- 
 cluded, 3 although it may not be effective against other parties. 
 Its effect may be limited to the party against whom it is com- 
 petent. This object may be secured by appropriately request- 
 ing the court to direct or instruct the jury to consider it only as 
 to the party against whom it has any force or effect. 4 
 
 1 Carr v. Boone, ioS Ind. 241. See Ind. 93; First Nat. Bank v. Colter, 61 
 Heberd v. Wines, 105 Ind. 237. Ind. 153; Bosley v. National, etc., Co., 
 
 2 It is hardly necessary to refer to the 123 N. Y. 550, 557; Clark v. Lovering, 
 decided cases upon this familiar doc- 37 Minn. 120,33 N. W. Rep. 776; Dunn 
 trine, but as cases arc at hand we v. Gibson, 9 Neb. 513. 
 
 cite them. Walker v. Topper, 2 Utah, 3 Taylor v. Deverell, 43 Kan. 469, 23 
 
 96; llolzman v, Hibben, 100 Ind. 338; Pac. Rep. 628; Pierce v. McConnell, 7 
 
 Wilkerson v . Rust, 57 Ind. 172; Web- Blackf. 170; Bond v. Nave, 62 Ind. 505; 
 
 ster v. Tibbits, 19 Wis. 439; New York, Graham v. Henderson, 35 Ind. 195; 
 
 etc., Co. v. Schuyler, 17 N. Y. 592; Cowan v. Kinney, 33 Ohio St. 422; Ed- 
 
 Feeney v. Mazelin, S7 Ind. 226; Rob- wards v. Tracy, 62 Pa. St. 374; Whit- 
 
 ertsonf . Garshwiler, Si Ind. 463; Boyd ney v. Ferris, 10 Johns. 66. 
 
 v. Anderson, 102 Ind. 217; Estep v. * See Vannoy v. Klein, 122 Ind. 416. 
 Burke, 19 Ind. S7; Teter v. Hinders. 19
 
 OBJECTIONS. 
 
 § 775. Grounds of Objection should all be Stated — Where there 
 are several grounds of objection they should be stated in one 
 motion or objection. Good practice requires that parties should 
 present all their grounds of objection in one motion. 1 Courts 
 are under no duty to permit parties to assign grounds of objec- 
 tion in a series of motions, and it is unsafe to attempt to do so, 
 since whether that course shall or shall not be permitted is, as 
 a general rule, a matter of discretion. To be safe the grounds 
 of objection should be embodied in one motion. Another con- 
 sideration is important in this connection and that is this : where 
 specific grounds of objection are stated the implication is that 
 there are no others, or, if others, that they are waived. 2 This 
 doctrine can not apply with the same force to objections to evi- 
 dence made in the course of a trial as it does to formal written 
 motions, but it does apply, although in a somewhat limited ex- 
 tent, to such objections. This we say for the reason that the 
 particular grounds of objection must be stated to the trial court 
 and the same grounds of objection brought before the appellate 
 tribunal by the record. While this is true it is likewise true 
 that a party may during the trial in rare instances supplement 
 the particular grounds of objection first urged by additional 
 ones. But where the objection is by a formal motion, even 
 though the motion is addressed to evidence, the specific grounds 
 of objection should be incorporated in one motion. As an ex- 
 ample may be taken a motion to suppress a deposition. 3 It is 
 
 1 Adams v. Lockwood, 30 Kan. 373; v. Witherbee, 77 Wis. 4.19, 46 X. W. 
 
 Pattison v. Bacon, 12 Abb. Pr. 142, S. Rep. 545; Bell v. Bumstead, 14 N Y 
 
 C. 21 How. Pr.478; Schlemmer v. My- Supp. 697; Richards v. Bestor, 90 Ala. 
 
 erstein, 19 How. Pr. 412; Mills v. Thur- 352, S So. Rep. 30. 
 
 by, 11 How. Pr. 114. As to reviewing 3 As to the time of objecting to de- 
 objections upon cause shown, Lovell :•. positions. Doane v. Glenno, 21 Wall. 
 Martin. 12 Abb. Pr. 17S. 33.351 York Co. v. Central, etc., ( 
 
 1 Smith v. Bean, 46 Minn. 13S, 4S N. Wall. 107. 1 13; Shutte v. Thompson. 15 
 
 W.Rep.687; State*. Leehman(S.D.), Wall. 151; Wrighl 0. Cabot, 89 IS Y. 
 
 49 N. W. Rep. 3; Triggs v- Jones, \6 570; Crowell v. Western, etc., Bank, 3 
 
 Minn. 277. 48 N. W. Rep. 1113; Com- Ohio St. 406, 409; Lee v. Stowe, 57 Tex. 
 
 monwealth v. Mead. 153 Mass. 284, 26 144; Bartleti ©. Host. 33 N. 11. 151; 
 
 N.E.Rep.855. Sec. generally, Strat- Glenn ©.Clore, 42 Ind. 60; Jones t>. D 
 
 ton v. Lockhart, 1 End. A.pp. 380, 27 N. etc., 1 [nd. 109; Hannibal, etc., ( 
 
 E. Rep. 715; Kansas, etc., Co. w. Haw- Moore, 37 Mo. 338; Graydon v. Gaddis, 
 
 ley (Kan.), 27 Pac. Rep. 176; Crawford ^<< [nd. 515; Stull r. Howard. 26 End.
 
 7;;i ERROR [N JUDICIAL PROCEEDINGS. 
 
 no doubt true that the general rule is not free from exceptions, 
 and it is also true that it can not govern where the objections 
 are not known to the party at the time the motion is interposed. 
 
 § 776. Jurisdictional Objections — We have elsewhere shown 
 that objections to the jurisdiction where objections are neces- 
 sary to save the question must be promptly made or they will 
 be lost by waiver. 1 It is in general true of objections to juris- 
 diction, as it is of other matters of procedure, that the objec- 
 tion must be so specific as to inform the court of the particular 
 grounds of the objection. 2 The well known rule applicable to 
 pleas or answers in abatement may be taken as indicative of 
 the certainty required in making objections to jurisdiction. 3 
 We have heretofore directed attention to the rule that where 
 there is a mistake in selecting the remedy, as, for instance, in 
 pursuing an equitable remedy when there was an adequate 
 legal remedy, the objection must be appropriately and specific- 
 ally presented in the court of original jurisdiction or it will not 
 be available on appeal. 4 As it seldom appears in the complaint 
 where the defendant's place of residence is, the objection as to 
 jurisdiction of his person must almost invariably be taken by 
 answer where the specific ground of objection is that he is sued 
 
 456; Robinius v. Lister, 30 Ind. 142; was too late to make the objection on 
 
 National Bank v. Dunn, 106 Ind. no; tbe trial. The court said: "On the 
 
 Truman x'. Scott, 72 Ind. 258; Newman trial the point was made that the 
 
 v. Manning, 89 Ind. 422; McGinnis v. plaintiff ought not to maintain this suit 
 
 Gabe, ;S Ind. 457. because he bad an adequate remedy at 
 
 1 A >ifc, §§ 328, 329, 330. See, also, law, and it is again urged on appeal. 
 "Nature of jurisdictional questions." In tbe answers of the several defendants 
 Ante, § 501. "Original objections to no such objection was made. The par- 
 jurisdiction." Ante, § 502, and " Waiv- ties having thus submitted to the juris- 
 er." Ante, Pari II. Chapter VI. diction of the court it was too late to 
 
 2 Hadlev v. Gutridge, 5S Ind. 302; take the objection on the trial that the 
 Campbell v. Swasey. 12 Ind. 70. plaintiff bad a remedy at law." The 
 
 1 We are, of course, not speaking of cases of Le Roy v. Piatt, 4 Paige, 77, 
 
 objections to jurisdiction of the general Town of Mctz v. Cook, 108 N. Y. 504, 
 
 subjei and Baron v. Korn, 127 N. Y. 224, 
 
 * Ante. §§ 501, 502. See, also, § 657, were cited. In the case of Chesapeake, 
 
 "Mistaking the remedy — Making the etc., Co. v. Mackenzie (Md.), 21 Atl. 
 
 error available." In Crisfield v. Mm- Rep. 690. See Thomas v. Farley Mf. 
 
 dock, 127 N. Y. 315, it was held that it Co., 76 Iowa. 735, 30. N. W. Rep. S74.
 
 • OBJEC riONS. 
 
 in the wrong county.' It is, of course, clear that a defendanl 
 may successfully assail the jurisdiction of the general subject 
 by demurrer, 2 although he is not hound to assail it in that mode 
 for it ma}' he assailed at any stage of the proceedings. There 
 is no difficulty in holding that where there is no general juris- 
 diction of the subject, as for instance, where an action of eject- 
 ment is brought in a court which has no jurisdiction whatever 
 of the subject of titles to land, the objection may be general 
 and may be interposed at any stage of the proceedings, but, as 
 we have endeavored to show in former paragraphs, where 
 there is jurisdiction over a general subject or class, there is 
 real, if not insurmountable, difficulty in supporting such a 
 holding. If there is general jurisdiction over actions involving 
 the title to land the fact that the particular parcel of land lies 
 in a county outside of the circuit does not divest the general 
 jurisdiction of the circuit court, although it may, if the objec- 
 tion is opportunely made, prevent the exercise of authority in 
 the particular instance, but to be opportune, the objection must, 
 as we believe, notwithstanding the decisions to the contrary,'' 
 be made in the lower court. If, for example, a plaintiff should 
 bring an action in Floyd county for land situated in Marion 
 county and the defendant should, without objection, submit the 
 case for trial, we think it clear that the plaintiff would not be 
 heard to aver that the proceeding was coram nonjudice. If he 
 could not it is difficult to conceive how his adversary, who had 
 assented to the jurisdiction, could make an)- such averment, 
 since it is inconceivable that the proceedings can be treated as 
 a nullity as to one party and valid as to the other. 
 
 § 777. Objections to Pleadings — Where objections are made to 
 pleadings by motion the motion should state the specific grounds 
 upon which it is founded, and indicate with reasonable certainty 
 
 1 Newell v. Gatling, 7 Ind. 147; 94 Ind. 205; Dashing v. State, 7b 1ml. 
 
 Kciscr :■. Yandes, 45 Ind. 174; D.iv :■. 457; Blair v. Hanna, 87 Ind. - 
 Henry, 104 [nd.324. Sec Robertson :•. ' Toledo, etc., Co. v. Milligan, 52 Iiul. 
 
 State. 109 Ind. 79. 505; Jolty v. Ghering, 40 End. 
 
 1 Dodson :•. Scroggs, 47 Mo. 285; Loeb v. Mathis, 37 Ind. 306. We think 
 
 Cones v. Ward, 47 Mo. 289; Doll :•. the doctrine of Indianapolis, etc., Co. v. 
 
 Feller, 16 Cal. 432; Seavej V. Maples. Solomon. J3 Ind. 534, i-> the true one.
 
 736 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 the relief sought. 1 The rule that objections must be specific is 
 trenched upon by the provisions of the code respecting causes 
 of demurrer, for there can be no doubt that the general causes 
 of demurrer which the code authorizes do not always disclose 
 the particular grounds of objection. But the rule holds good 
 respecting demurrers in so far as to preclude a party from as- 
 signing one of the causes of demurrer and subsequently insist- 
 ing upon another. 2 Where the cause of demurrer assigned goes 
 to parties the rule governs and specification is required. 3 
 
 § 778. Objecting to Jurors — The better rule, and that sustained 
 by the weight of authority, is that in order to make a refusal to 
 allow a challenge for cause available for the reversal of a judg- 
 ment, there must be a specification of the grounds of the chal- 
 lenge. It is not enough to declare in general terms that the 
 party objects to the juror or that he challenges the juror. 4 The 
 
 1 Fischer v. Coons, 26 Neb. 400,42 X. 
 W. Rep. 41 7; Rickettsf. Dorrell,59 Ind. 
 427; Brinkmeyer v. Ilelbling, 57 Ind. 
 435; Murphy •». Teter, 56 Ind. 545; Lu- 
 cas v. Smith, 54 Ind. 530; Hay v. State, 
 58 Ind. 337; Mullendore v. Silvers, 34 
 Ind. 98; McDuffee v. Bentley, 27 Neb. 
 380, 43 N.W. Rep. 123; Latimer v. Sul- 
 livan, 30 So. Car. in, 8 S. E. Rep. 639. 
 See Pierce v. Biecknell, 11 Kan. 262; 
 Meagher v. Morgan, 3 Kan. 372. 
 
 2 Adams v. Lamson, etc., Co., 59 
 Hun. 127; Leedy v. Nash, 67 Ind. 311; 
 Nesbit v. Miller, 125 Ind. 106; Story v. 
 ( >' Dea, 23 Ind. 326; Musselman v. Kent, 
 33 Ind. 452; Clough v. Thomas, 53 Ind. 
 24; Evans v. Schafer, 119 Ind. 49; Ed- 
 wards v. Beall, 75 Ind. 401; Borchus v. 
 Huntington, etc., Assn., 97 Ind. 1S0; 
 Bond v. Armstrong, 88 Ind. 65; Board 
 v. Kimberlin, 10S Ind. 449; Dunn v. 
 Tousey, 80 Ind. 2S8; Johnson School 
 Township v. Citizens Bank, 81 Ind. 515. 
 The proper cause must be assigned or 
 the demurrer will be unavailing. Peden 
 v. Mail, 11S Ind. 556, 20 N. E. Rep. 493; 
 Firestone v. Werner, 1 Ind. App. 293, 
 27 \. E. Rep. 623; Campbell v. Camp- 
 
 bell, 121 Ind. 17S. 23 N. E. Rep. Si; 
 Whipperman v. Dunn, 124 Ind. 349, 24 
 N. E. Rep. 1045. See Wilhoit v. Cun- 
 ningham, 87 Cal. 453, 25 Pac. Rep. 675; 
 Sargent v. Cunningham (Cal.), 25 Pac. 
 Rep. 677; Heeser v. Miller, 77 Cal. 192; 
 Morris v. Beall, 85 Ala. 59S, 5 So. Rep. 
 252; Marie V. Garrison, 83 N. Y. 14. 
 
 3 Hodge v. Drake, 60 Hun. 577, 14 X. 
 Y. Supp. 355; Kelley v. Love, 35 Ind. 
 106; Van Sickle v. Erdelmeyer, 36 Ind. 
 202; Winfield Town Co. -'.Maris, 11 
 Kan. 128; Cookerly V. Duncan, 87 Ind. 
 332; Dewey v. State, 91 Ind. 173; Gard- 
 ner v. Fisher, S7 Ind. 369; Williams v. 
 State, 87 Ind. 527. 
 
 4 Drake v. State, 53 N. J. L. 23, 20 
 Atl. Rep. 747; State v. Muncrath, 78 
 Iowa, 26S, 43 N. W. Rep. 211; People 
 v. Ilopt, 4 Utah, 247, 9 Pac. Rep. 407; 
 Mann V. Glover. 14 X. J. L. 195; PeOr 
 pie v. Reynolds, 16 Cal. 12S; Stale v. 
 Knight, 43 Me. 11; State v. Squaires, 2 
 Nev. 226; Paige v. O'Xeal, 12 Cal. 4S3; 
 Wilson v. People, 94 111. 299; People 
 v. Doe, 1 Mich. 451; State v. Dove, 10 
 Ired. L. (X. C.) 469; Jones v. Butter- 
 worthy N.J. 345; Stephenson 7'. Stiles,
 
 OBJECTIONS. 7:;7 
 
 cases upon this question are in conflict, but the rule we have stated 
 
 is the onlv one that is supported by principle, and it is the only 
 one that is consistent with the decisions in analogous ca 
 The considerations which require the specification of the grounds 
 of an objection apple quite as forcible to challenges of jurymen 
 for cause as to objections to evidence, instructions or pleadings. 
 The spirit of the code is to secure specilic statements from an 
 objecting party and thus enable the adverse party and the court 
 to understand the precise question involved. The record must 
 show the objections, and, where they are based upon the state- 
 ments of the juror himself, all of his examination, and not 
 merely part of it, should be appropriately brought into the 
 record. 1 This doctrine is in harmony with the general rule 
 which requires that the whole of a series of instructions be 
 brought into the record, and is the only one consistent with 
 principle, since true principle demands that all of the informa- 
 tion placed before the trial court shall be brought before the 
 appellate tribunal. This principle requires that where there is 
 evidence, whether in the form of affidavits or of oral testimony, 
 it shall be properly carried into the record, so that the appellate 
 tribunal maybe able to understand the precise question decided 
 by the trial court, and the grounds upon which it proceeded. 2 
 
 § 779. Specifying Objections to Evidence— It is no more than 
 reasonable to assume that counsel who object to evidence are 
 prepared to assign specific reasons for their objections, and it 
 would be unreasonable to require the court in the progress of a 
 trial to search for the grounds of objection. 3 There is sub- 
 stantial agreement upon the general question and the authori- 
 
 3 X.J. L. 543. In Freeman V. People, eases seem to hold a different doctrine. 
 
 4 Denio. 9, 31, it was said: " When a Lohman v. People, 1 V Y. 579 R 
 juror is challenged for principal cause, v. Knurr-. i| Wend. 131; People v. 
 or for favor, the ground of the challenge Mather, 4 Wend. 229; Mechanics, etc., 
 should be distinctly stated; tor without Bank v. Smith. [9 Johns. 115. 
 
 this the challenge is incomplete and 'Johnson :. Holliday, 79 Ind. 151; 
 
 may be wholly disregarded by the Indianapolis, etc., Co. 1 . Pitzer, 109 
 
 court. It is notenough to say, ' I chal- Ind. 179. 
 
 lenge tor principal cause or favor, 1 and * Lockhart v. State, 9a Ind. 452; Shu- 
 stop there; the cause of the challenge lar 0. State. 105 Ind 
 must be specified." Other New York ' Clem v. Martin. 34 Ind. 341. 343. 
 
 47
 
 738 
 
 ERROR 1 s H Did M PR< ICEEDINGS. 
 
 ties are very numerous. 1 The rule is qualified or limited by 
 some <>t the courts, for it is the doctrine of some of the cases 
 that where the grounds of the objection are disclosed by the 
 evidence itself there is no necessity for specification. It seems 
 
 to US that there should he no limitation or qualification of the 
 rule. The attempt to limit creates useless exceptions, estab- 
 lishes arbitrary distinctions and builds up a system of particular 
 instances. Such a system has nothing to commend it, and 
 in practice works evil for the reason that it consumes the time 
 of the court in determining whether a particular case is or is 
 not within the rule. The rule is a wholesome and practical one 
 .md is not technical. 2 
 
 § 780. Separating Competent from Incompetent Evidence — Where 
 testimony is in part competent and in part incompetent the ob- 
 
 1 We citea few of the many decisions 
 upon thi6 question: People v. Nelson, 
 85 Cal. i-'i, -'| Pac. Rep. [006; Kansas 
 City, etc., Co. v. Smith, 90 Ala. 25, 8 
 So, Rep. 1;; Smith n. McCarthys 111. 
 Api>. 176; Christian v. State (Ga.), [2 
 S. E. Rep. 645; Litten 0. Wrighl School 
 Township, 127 [nd. 81, 26 N. E. Rep. 
 5<>-; Stringer v. frost, 110 [nd. 177; 
 Bund ^ ;■. Cunningham, 107 tnd. 360; 
 Chapman v. Moore, 107 Ind. 223; Ohio, 
 etc., Co. p. Walker, 113 [nd. 196, and 
 cases cited. Babb .- Missouri Uni- 
 versity, 40 Mo. A.pp. 173; Everetl v. 
 Williamson, 107 V C. 204, [2 S E. 
 Rep. 187; A.bbott v. Chaffee, 83 Mich. 
 256, 17 V W. Rep. 216; Kenosha Stove 
 Shedd (Iowa), ^8 N. W. Rep. 
 Ward©. Wilms (Colo.), -7 Pac- 
 Rep. 247; Henry p. Dean, 6 Dak. 78; 
 Smith p. Morrill, 39 Kan 665, [8 Pac, 
 Rep 915; Tucker ©.Jones, 8 Mont. 225, 
 i<i Pa< . R< p 57 1 ; Queen 1 ns. Co. v. 
 Studebaker, 117 1 nd. 1 16; I [elena o. 
 A Iberto »e, 8 M ont. 499; Bulvt Lnkle p. 
 Cramer, 30 So. Car. 153, 8 S. E. Rep. 
 , District of Columbian. Woodbury, 
 136 l. s. 150; Prindle v. Campbell, 7 
 Ma< kej ( D, C 59S; Prather v. Ram 
 
 bo, 1 Blackf. 189; Hall v. Gittings, 2 
 Harr. & J. 1 u. 
 
 J The general subjecl is well discussed 
 in Rush';'. French, 1 Ariz. 99, where a 
 greal number of cases are cited. In the 
 
 course of the opinion it was said: " The 
 
 objed of requiring grounds of objection 
 to be stated which may seem to be a 
 technicality is really to avoid techni- 
 calities ami prevent delay in the admin- 
 istration of justice. When evidence is 
 offered to which there is some objection, 
 substantial justice requires that the ob- 
 jection be specified, so that the party 
 offering the evidence can remove it if 
 possible, and lei the ease be tried on its 
 merits. It" it i- objected that the form 
 
 is leading, the form may be changed; 
 if thai the evidence is irrelevant, the 
 relevancy may be shown; it' that it 
 is incompetent, the incompetency may 
 
 be removed; it" that it is immaterial, 
 
 its materiality may be established; if to 
 the order ^\' introduction, it may in- 
 withdrawn and offered at another time; 
 and thus appeals could be often saved, 
 delays avoided and substantial justice 
 administered."
 
 OBJ E< in' 
 
 jecting party must address his objection to the part that is in- 
 competent. He can not impose upon the court the dut} oi 
 sifting the bad from the good. Ii follows thai an objection to 
 evidence where pari is competent and part incompetenl may 
 be overruled without available error, in cases where counsel 
 interpose the objection to all the evidence.' The court may, 
 if it so elects, undertake the work of effecting a separation but 
 it is under no obligation to do so, and where there is no objec- 
 tion requiring the performance of a duty as a matter ol right 
 there can be, as a general rule, no available error. 
 
 § 781. Practice where the Question is Proper hut the Answer In- 
 competent — Where a question is proper it is obvious that an ob- 
 jection to it will be unavailing. Bu1 a proper question does 
 
 not give validity to an improper answer, ami there must be 
 some mode in which the answer van be reached. That mode 
 is by moving to strike out the incompetent answer. Where 
 part of the answer is competent and part incompetent, then, 
 upon the principle stated in a former paragraph, the motion to 
 
 strike out must be limited to so much of the answer as is in- 
 competent. It may not be amiss to suggest that where the 
 , question is improper the objection should be at once interposed 
 
 and addressed to the question. This is the sale practice tor it 
 is sometimes hazardous to take the chances of a favorable or 
 
 » McGuffey v. McClain (Ind. Sup. 77 c ; - 1 . 1 . . • . |S I Rep ; . Hai -ml 
 
 \ E. Rep. ; Jones v. State, v. Schiff, too V C. [61, 6 S E Rep. 
 
 ,is [nd.39; Pape v. Wright, ti6 [nd. 753; People v. Rose, 5a Hun. ;;, Bad- 
 
 502; Daj Henry, 104 Ind. 324; City ders 1 Davis, \ , 6 So. Rep. 
 
 ol rerre Haute v. Hudnut, 112 Ind. 542; 834; Holmes v. Turners Fall 
 
 Waymire v. Lank, 121 Ind.i; St.Louis, Mass. 535, 23 N E Rep [0 Smo 
 
 etc., Co. w.Hendricks, \8 Ark. 177, S. Eslava, 2 S I \ De< 
 
 C. ; \m. St. Rep. 220; Pettigrev v. 310; Wallis v. Randall, Ii N.^ 164. 
 
 ium,n Mel. |34,S C.6g \-< Dei * Gduld Day,94 U S ^5; Barnes 
 
 ai2, and note; Shatto v. Crocker, s ; ' '•''■■ ] on 
 
 Cal. 629, 25 Pac Rep. 921; Bell v Km- 118 [nd State, 118 
 
 dall (Ala |, s So. Rep ^92; Fonville v. [nd 
 
 State, 91 Ala. 39, 8 So. Rep. 688; South |.>vvv Rep. 106; People 1 Wllkin- 
 
 v. State, 86 Ala. 617, 6 So. Rep. 52; Las son, 60 Hun. 58a, 14 N Y Sup| 
 
 Biter v. Simpson, 7 s Ga 61, ; S E Shepardv New York, etc., Co., 60 Hun. 
 Rep. 243; Powell v. Augusta, el I I V. Supp. 175.
 
 ^Q ERROR IN JUDICIAL PROCEEDINGS. 
 
 harmless answer, inasmuch as the failure to promptly object to 
 the question may be treated as a waiver of objection. 
 
 § 782. Specification of Objections to Conduct of Parties and Conn- 
 gel The general doctrine that specific objections must be stated 
 
 applies to the conduct of parties and counsel. 1 The question 
 in such cases assumes a peculiar form, but the underlying prin- 
 ciple is the same. A general objection in matters of procedure, 
 it has been said, is "unworthy of consideration." This is 
 true, not only of particular phases of procedure, but of all, for 
 a denial of the principle is an assertion that there can be no 
 such thing as a consistent system of procedure, and this asser- 
 tion can not be made good. There is, therefore, reason for re- 
 quiring a party who seeks to make the misconduct of counsel 
 or parties available for the reversal of a judgment to specify 
 the grounds of his objection. 
 
 1 Morrison v. State, 76 Ind. 335, 343; detached statements, because we can 
 
 Coble v. Eltzroth, 125 Ind. 429; Tabor not give space for extended extracts. 
 
 v. fudd, 62 X. II. 288; Dowdell v. Wil- "Counsel are held to the grounds of 
 
 cox, 64 Iowa, 721. See, generally, Pow- objection stated at the time they call 
 
 Mitchell, 77 Me. 361; State v. for a decision, because they are sup- 
 
 Degonia, 69 Mo. 485. In the case first posed to know the law of their case, 
 
 cited it was said, in speaking of objec- and if they do not offer objections they 
 
 tion to the conduct of counsel in argu- are supposed to waive them. It is their 
 
 ment: "The reasons for each objec- business to be attentive on a trial and 
 
 tion or exception must be specified at if they miss a point they must lose it. 
 
 the time and with reference to the end They must stand or fall upon the case 
 
 sought to be attained." What was said they made below, for this court is not a 
 
 in Rush v. French, 1 Arizona, 99, 124, forum to discuss new points of this 
 
 is applicable to all matters of trial character, but simply a court of review 
 
 procedure, although said with especial to determine whether the rulings of the 
 
 reference to objections to evidence, court below on the case presented were 
 
 We quote from the opinion in that case, correct or not."
 
 CHAPTER XII. 
 
 EXCEPTIONS. 
 
 7S3. Nature and office of an excep- 
 tion. 
 
 784. When an exception is required. 
 
 755. Time of taking exceptions. 
 
 756. The exception must immediate- 
 
 ly follow the decision. 
 
 787. The exception must be addressed 
 
 to the specific ruling. 
 
 785. Joint exceptions. 
 
 789. Exceptions can not be taken to 
 several rulings in gross. 
 
 790. A party must rely on his own 
 
 exceptions. 
 
 791. Excepting to instructions. 
 
 792. Noting exceptions to instruc- 
 
 tions. 
 
 793. Conclusions of law stated on a 
 
 special finding of facts. 
 
 794. Specifying error on exceptions 
 
 to conclusions of law. 
 
 795. Ruling on a motion for new trial. 
 
 796. Questioning judgments. 
 
 § 783. Nature and Office of an Exception— In the first paragraph 
 of the preceding chapter we outlined the difference between an 
 exception and an objection, and in doing so necessarily spoke 
 of the general nature of an exception, but it is necessary to here 
 mark somewhat more carefully the distinctive features of an 
 exception inasmuch as confusion can not well be avoided with- 
 out doing so. An exception, as we here employ the term " ex- 
 ception," means a formal notice, or statement, following a rul- 
 ing made in the formation of issues or in the progress of a trial 
 or disposition of a cause, indicating an intention to reserve a 
 question upon the ruling for future consideration. 1 An excep- 
 
 1 Our code thus defines an exception: 
 "An exception is an objection taken to 
 a decision of the court upon a matter 
 of law." R. S. 1SS1, §625. It is evi- 
 dent from this that an exception follows 
 a ruling and docs not precede it as does 
 an objection. But while the statutory 
 definition seems to imply that an ex- 
 ception is always an objection, the 
 practical construction given to it does 
 not warrant this conclusion. There are. 
 however, cases where an exception is 
 
 (' 
 
 an objection, as, for instance, in cases 
 of exceptions to conclusions of law 
 stated upon a special finding of facts. 
 Ordinarily, however, an objection pre- 
 cedes an exception and presents the 
 question \o\ decision, and the excep- 
 tion simply saves the question upon the 
 ruling or decision for future considera- 
 tion. In Kleinschmidt v. McAndrews, 
 
 117 l". S. 282, 286, the Supreme Court 
 
 of the United States said: "But n 
 ception to the ruling of a court can be 
 11 I
 
 742 ERROR [N JUDICIAL PROCEEDINGS 
 
 lion implies that the party who takes it intends to make the 
 ruling available as error in a proceeding calling the judgment 
 in review, or upon appeal. An exception is not required to be 
 staled in formal words, for the declaration that the party ex- 
 cepts implies that he means to save the questions arising on 
 the ruling or decision. 1 The law gives effect to the exception, 
 and it is not necessary to state the specific grounds upon which 
 it is based ; that is done by the objection in all cases where an 
 objection is required. An exception in chancery practice and 
 in some special proceedings is a different thing from an exception 
 in ordinary civil or criminal procedure, for the office of the latter 
 is, as a general rule, to save questions on a ruling or decision and 
 not to present questions for decision. Where the record proper, 
 as in the case of demurrers to pleadings, discloses the grounds 
 of objection the office of the exception is to give notice that 
 questions are saved or reserved, and in such cases the record 
 proper exhibits the grounds upon which the exception rests, 
 but where the record proper does not exhibit the specific 
 grounds of objection, an exception performs no useful function 
 unless there is a preceding motion or objection stating specific 
 grounds of objection. Nor will such an objection be available 
 unless the specific grounds of objection, the ruling thereon and 
 the matters essential to a full understanding of the decision are 
 brought into the record as the law requires. The failure to 
 opportunely except where an exception is required is always 
 an effective waiver. 
 
 § 784. When an Exception is Required — An exception must be 
 taken in all cases save those in which the questions are such as 
 
 taken until after it is made, and it is ' Our code provides that: "No par- 
 plain, therefore, that what is meant by ticular form of exception is required." 
 the section of the code referred to is, R. S. 1881, § 627. This statement ex- 
 that the exception must be to some de- presses the general rule. The law gives 
 cision or ruling of the court, occurring force to an exception and the implica- 
 hc tore the final judgment is rendered, tion always is that the exceptor chal- 
 and not that the exception must be lenges the correctness of the ruling or 
 taken before the decision excepted to decision and intends to subsequently 
 has been made." make the ruling a ground for assailing 
 
 the judgment.
 
 EXCEPTIONS. 
 
 743 
 
 mav be first made on appeal.' We have elsewhere considered 
 the subject of first making questions on appeal. 2 It is o 
 necessary to say here that where there is no cause of action or 
 no jurisdiction, there is no necessity for reserving an exception. 
 The case of a judgment by default falls within this general 
 classification, for in such cases jurisdiction of the person must 
 appear from the record. In the event of a failure to show juris- 
 diction of the person in the case of a judgment by default, the 
 inference is that jurisdiction did not exist. But, as we have 
 elsewhere shown, where the record shows notice, although de- 
 fective or irregular, the inference of want of jurisdiction does 
 not necessarilv arise, but it does arise where there is an entire 
 absence of notice. 3 
 
 § 785. Time of Taking Exceptions — There is only one time at 
 which an exception can be effectively taken and that is at the time 
 the ruling is made. 4 It is one thing to except and quite another 
 to secure time in which to reduce an exception to writing. Time 
 may be given in which to reduce an exception to writing, but 
 time can not be given in which to except. 5 It is held, and with 
 
 1 The decisions upon this question 
 are so numerous and the rule so firmly 
 established that we regard it as unnec- 
 essary to cite them. 
 
 2 Ante, Chapter XXIII. 
 
 3 Ante, §§ 328, 334, inclusive. 
 
 4 City of La Porte v. Organ (Ind. 
 App.), 30 N. E. Rep. 2; Hull v, Louth. 
 109 Ind. 315; Sohn v- Marion Gravel 
 Road Co., 73 Ind. 77; Goodwin v. 
 Smith, 72 Ind. 113; Horner v. Hoadly, 
 97 Ind. 600; Cincinnati, etc., Co. v. 
 Leviston, 97 Ind. 4S8; Alcorn v. Mor- 
 gan, 77 Ind. 1S4; Rhine v. Morn 
 
 Ind. Si, and cases cited; Boyce v. Gra- 
 ham, 91 Ind 420; Blacketerv. House, 67 
 Ind. 414; Leyner v. State, 8 Ind. 490; 
 Johnson v. Bell, 10 Ind. 303; Newton v. 
 Tvner, 12S Ind. 466, 27 N . E. Rip. 168; 
 State v- Probasco, 46 Kan. 310. 26 Pac. 
 Rep. 749; Fifth Avenue Bank v. Webber, 
 27 Abb. X. C. 1; Thomas v. Griffin, 1 
 Ind. App.457, 27N. E.Rep. 754; Sp< 
 
 er v. Handley, 151 Mass. 313, 23 N. E. 
 Rep. S40; Stater. Movers. 99 Mo. 107. 12 
 S.W. Rep. 516; Turner ©.Yates, 16 I low. 
 (U. S.) 14, 29; Stewart v. Huntington 
 Bank, 11 Sergt. & R. 267, S. C. 14 Am. 
 Dec. 62S; Hunnicut v. Peyton, 102 U. 
 S. 333, 354; United States p. Carey, 1 10 
 U. S. 51; Bull v. Commonwealth, 14 
 Gratt. 613; Watson p. Smith, 2S Tex. 
 App. 34, 12 S. W. Rep. 404; Comparet 
 v. Hedges, 6 Blackf. 416; Gallagher p. 
 Southwood, 1 Kan. 143. 
 
 6 In Coan p. Grimes, 63 Ind. 21, 26, it 
 was said: "It is claimed that it was 
 within the discretion of the court to 
 grant lease to the appellant to except, 
 after the decision was made, and that 
 the denial of such leave was an abuse 1 if 
 discretion. We think that the court had 
 no such discretion. The statute is man- 
 datory. The party objecting must ex- 
 cept at the time the decision is made. 
 It would have been error, it" the court
 
 744 ERROR IN JUDICIAL PROCEEDINGS. 
 
 reason, that the exception must follow the ruling challenged, 
 and that notice in advance of an intention to except is not suf- 
 ficient. 1 
 
 § 786. The Exception must Immediately Follow the Decision — The 
 
 purpose of an exception is to give the court and the adverse 
 party notice that the exceptor intends to hold to his objections 
 to the particular ruling. It is, therefore, essential that the ex- 
 ception should be taken before other rulings aire made. This 
 doctrine was lono; since declared. 2 It is to be understood that 
 the exception is generally directed to the ruling and not to an 
 act, event, or occurrence. Thus, if a court should send a 
 bailiff into the jury room to instruct the jury, the objection is 
 opportune if promptly made upon a discovery of the error and 
 an exception to a ruling denying a new trial would save the 
 question, provided the motion specifies the proper cause. So, 
 if jurors misconduct themselves, the objection made imme- 
 diately after the discovery of the misconduct would be saved 
 by an appropriate motion for a new trial, followed by a proper 
 exception. 3 But when a ruling is announced the exception 
 must be at once taken. Thus, where a ruling on demurrer is 
 made, the exception must be taken at the time. 4 So, where a 
 
 had allowed the appellant over the ap- berger v. State, 5 Ind. 300; State v. 
 
 pellee's objection to except to the de- Bartlett, 9 Ind. 569. 
 
 cision two days after it was made." 3 Polin v. State, 14 Neb. 540; Barlow 
 
 Kopelke v. Kopelke, 112 Ind. 435; v. State, 2 Blackf. 114; Henningc. State, 
 
 Weis v. City of Madison, 75 Tnd. 241; 106 Ind. 3S6, 393. 
 
 Kinsey v. Satterhwaite, SS Ind. 342. * Niven v. Burke, 82 Ind. 455; Fox v. 
 
 1 Gregory v. Dodge, 14 Wend. 593, Town of Monticello, S3 Ind. 483; Burk- 
 affirming the decision reported in 4 ham v. Burk, 96 Ind. 270; Brownlee v. 
 Paige, 557. Goldthait, 73 Ind. 4S1; State v. Mus- 
 
 2 The court in Jones v. Van Patten, 3 tard, So Ind. 2S0; Wales v. Miner, 89 
 Ind. 107, declared that it " is a well es- Ind. 11S. In the case of the American 
 tablished rule that erroneous steps in the Insurance Co. t>.Yearick, 78 Ind. 202, at 
 progress of a cause are waived, unless the time the ruling upon demurrer was 
 excepted to before additional steps are announced, no exception taken, at the 
 taken." This doctrine was expressly next term the party who demurred de- 
 approved in Dickson v. Rose, S7 Ind. clared that he would not amend, but 
 I"- Corey v- Rhineheart, 7 1ml. 291; would abide by his complaint, ami it 
 Wheeler v. State, S Ind. 113; Horn- was held that no question was presented, 
 
 although he then excepted.
 
 EXCEPTIONS. 745 
 
 ruling is made upon evidence, the time for excepting is the 
 time the ruling is declared. 
 
 § 787. The Exception must be Addressed to the Specific Ruling— 
 
 An exception must be directed against a designated ruling. A 
 party can not except to one ruling and make his exception 
 available against others. This is true although the ruling to 
 which the exception is addressed may include the one sought 
 to be brought under review. 1 
 
 § 788. Joint Exceptions — Where two or more parties unite in 
 an exception it must be well taken as to all or it will be una- 
 vailing. 2 This doctrine is, as we have shown at another place, 
 one of wide scope. The rule is necessary for the sake of con- 
 sistency, and rests on principle. 
 
 § 789. Exceptions can not be Taken to Several Rulings in Gross 
 
 — To be effective an exception must be taken to each ruling as 
 it is made. 3 True principle requires that exceptions be so taken 
 that there shall be no doubt as to the specific ruling sought to 
 be reserved for review and no necessity to hunt for it during 
 the progress of the cause. 4 The practice of taking obscure or 
 general exceptions has been strongly condemned. 5 
 
 1 State v. Weaver, 123 Ind. 512; must be taken to each ruling sepa- 
 Bouknight r. Brown, 16 So. Car. 155, ratelv." 
 
 164; State v. Turner, iS So. Car. 103, « Carroll v. Little, 73 Wis. 52. 40 V 
 
 104; McDaniel v. Stokes, 19 So. Car. W. Rep. 5S2; Stater. Leaver. 62 Wis. 
 
 60, 61; Lewis v. New York, etc., Co., 3S7. 22 V W. Rep. 576; Buffalo, etc., 
 
 123 N. Y. 496. v. Phillips, 67 Wis. 129, 30 N. W. Rep. 
 
 2 Boslev v. National, etc., Co., 123 N. 295. In the case of Crocker v. Currier, 
 Y. 550, 556; Murray v. Usher, 117 N. 65 Wis. 662, j; N. W. Rep. 825, it w is 
 Y. S42. held that exceptions taken before a 
 
 3 Wilson v. Wolfer, 8 Ind. 398. In referee must be renewed in the trial 
 Levner v. State, S Ind. 490, 493, it was court or they will not be available on 
 said: "Exceptions are not to be thus appeal. 
 
 taken in gross to several rulings; the 5 In Turner v. People, 33 Mich 
 
 exception must be taken to each ruling 382, it was declared that: "The prac- 
 
 as it arises on the trial." Johnson v. tice of taking general and obscure ex - 
 
 McCulloch, 89 Ind. 270. - 1 :;. asserts ceptions at the moment, in order to en- 
 
 the same doctrine, and so dors Western able counsel on subsequenl critical ex- 
 
 Union Tel. Co. ». Trissal, 98 Ind. 566, amination to raise points under the 
 
 570. Tn Walter v. Walter. 1 17 Ind. 247, exceptions which have never been SUg- 
 
 the rule was thus stated: " Exceptions gested at all to the minds of the judge,
 
 746 
 
 ERROR INJUDICIAL PROCEEDINGS. 
 
 § 790. A Party must Rely on His own Exceptions— A party must 
 rely on the exceptions he himself takes. 1 He can not make 
 those taken by his adversary available. It is but fair to the 
 court that it should know from what quarter the exception 
 comes, for the character and effect of an exception depend 
 in no small degree upon the party by whom it is taken. 
 
 § 791. Excepting to Instructions— A party is not bound to ob- 
 ject to instructions, but he is required to opportunely and ap- 
 propriately except to them. It has been finally held by our 
 court, after much wavering, that the exception must be taken to 
 each instruction. 2 This was the original doctrine of the court,- 1 
 but it was departed from. It is the doctrine sustained by the 
 great weight of authority. 1 The rule respecting the specifica- 
 tion of instructions given has been applied, and rightly as we 
 think, to the refusal to give instruction, the court adjudging 
 
 is objectionable on manv grounds, and 
 is contrary to the theory upon which 
 points are allowed to be raised on ex- 
 ceptions." See, also, Bain v. White- 
 haven, etc., Co., 3 H. L. Cases, i, 16; 
 Jones v. Osgood, 2 Selden, 233; Insur- 
 ance Co. v. Lea, 21 Wall. 158; Adams 
 v. State, 25 Ohio St. 584^ 587. Where 
 an exception is not preceded, as it usu- 
 ally is. by specific objections, there 
 must, as a general rule, be specification, 
 but as we have heretofore shown, where 
 the preceding objection or motion 
 makes the proper specification a general 
 exception is all that is required. 
 
 1 Amonett V. Montague, 63 Mo. 201; 
 Bingham v. Stage, 123 Ind. 2S1. 
 
 3 Ohio, etc., Co. v. McCartney, 121 
 Ind. 385, 3S7; Wallace v. Exchange 
 Bank, 126 Ind. 265. 26 X. E Rep. 175. 
 
 3 Garrigus v. Bennett, 9 Ind. 52S; 
 Elliott v. Woodward, [8 Ind. 1S3; State 
 I'.artlett, 9 Ind. 569; Branham v. 
 State, 11 Ind. 553. The doctrine of 
 such cstscs as Bartholomew v. Langs- 
 dale, 35 Ind. 27S. has been tacitly re- 
 
 pudiated in practice and it is expressly 
 denied in Ohio, etc., Co. v. McCartney, 
 121 Ind. 3S5. See, also, Jones v. Lay- 
 man, 123 Ind. 569. 
 
 4 Beavor v. Taylor, 93 U. S. 46; Rog- 
 ers v. The Marshall, 1 Wall. 644; Har- 
 vey v. Tyler, 2 Wall. 32S; Walsh v. 
 Kelly, 40 X. Y. 556; Lincoln v. Clatlin, 
 7 Wall. 132; Burton v. West Jersey, etc., 
 Co., 114 U. S. 574; Connecticut, etc., 
 Co. v. Union Trust Co., 112 U. S. 250, 
 261; Behrens v. Behrens, 47 Ohio St. 
 323, 2^ X'. E. Rep. 209; Block v. Darl- 
 ing, 140 U. S. 234; Smith v. Coleman, 
 77 Wis. 343. 46 N. W. Rep. 664; State 
 v. McDuffie, 107 X. C. 8S5, 12 S. E. 
 Rep. 83; Young v. Youngman (Kan.), 
 2^ Pac. Rep. 209; Wallace v. Williams, 
 59 Hun. 628, 14X.Y. Supp. 180; Hick- 
 am v. People (111.). 27 X. E. Rep. 88; 
 McFeters v. Pierson, 15 Col. 201, 24 
 Pac. Rep. 1076; Edgell v. Francis, S6 
 Mich. 232, 48 X. W. Rep. 1095; Nelson 
 v. Warren (Ala.), S So. Rep. 413; Ev- 
 erett v. Williamson, 107 X. C. 204. 12 
 S. E. Rep. [87.
 
 EXCEPTIONS. 7 17 
 
 that exceptions must be specifically directed to particular in- 
 structions. 1 
 
 § 792. Noting Exceptions to Instructions— Our code provides 
 that exceptions to instructions may be noted by l4 writing on 
 the margin or at the close of each instruction refused and 
 cepted to, or given and excepted to, which memorandum shall 
 be signed and dated by the judge."- It has been held under 
 this provision that instructions may become part of the record. 
 if the terms prescribed are complied with, without a bill of ex- 
 ceptions. 3 In order that the instructions may become a part 
 of the record it must appear that they were filed. 4 It is to be 
 observed that this mode of bringing instructions into the record 
 is not an exclusive one, for they may be brought into the record 
 in other modes, and they are often brought in by a bill of ex- 
 ceptions. 5 It is said by an author of excellent standing, in 
 speaking of one of the early cases" that, " The present statute, 
 as we have seen, conforms to the case first cited, and an excep- 
 tion signed by the party or his attorney would not now be avail- 
 able." 7 
 
 § 793. Conclusions of Law Stated on a Special Finding of Facts- 
 It is now quite well settled that the proper mode of questioning 
 
 1 Carroll v. Williston, 44 Minn. 2S7, Ind. 100." See, also, Silver v. Parr, 115 
 
 46 N. W. Rep. 352; Stitt v. State, 91 Ind. 113. The date must be stated. 
 
 Ala. 10, 8 So. Rep. 669; Walker v. Behymer v. State, 95 Ind. 140; Child- 
 
 State,Q,i Ala. 32,76,980. Rep. 87; Read ress v. Callender, supra, p. 396. 
 
 v. Nichols, ti8 N. Y. 22 |, S. C. 7 Law. Craig v. Frazier, 127 Ind. 286. 
 
 Rep. Anno. 130; State v. Adamson, 43 * See the cases cited in the preceding 
 
 Minn. [96, 4.5 N. W. Rep. 152. See note, and, also. Blount v. Rick, 107 Ind. 
 
 McCarl v. Squire, [50 Mass. 4S4, 23 N. 23S; Landwerlen v. Wheeler. 100 [nd. 
 
 E. Rep. ^23. 523; Olds v. Deckman, 98 Ind. 162; 
 
 * R. S. 1SS1, § 535. Supreme Lodge, etc., V. Johnson. 7^ 
 
 3 In Lower v. Franks, 115 Ind. 334, Ind. no; Elliott p. Russell, 92 Ind 
 
 338, the court said: " These memoran- O'Donald v. Constant, 82 Ind. 212; 
 
 dums, signatures and indorsements Marquadt v. Sieberling, 121 Ind $07; 
 
 brought the instructions into the rec- Eslinger * East, too [nd. 434; Louis- 
 
 ord, under the provisions of section ville, etc., v. Wright, 115 Ind. $78 
 
 535, R. S. 1881, without a formal bill of * Newbj v. Warren, :\ Ind. 161; 
 
 exceptions and without any order of Burk : . Andi6, o s Ind 
 
 the court making them a part of it. 'Cross v. Pearson, 17 Ind. 612 
 
 Childress v. Callender, mS Ind. 304: ' 1 Work's Practice. - 
 Fort Wax tic, etc., Co. : Beyerle, tio
 
 748 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 the correctness of the conclusions of law stated by the court 
 upon a special finding of facts is by excepting, at the time, 1 to 
 each of the conclusions. The validity of the conclusions is not 
 reached by a motion for judgment nor by a motion for a new 
 trial, 1 ' but the correctness of the decisions upon questions of 
 facts must be challenged, as elsewhere shown, by a motion for 
 a new trial. The exceptions should be addressed to the conclu- 
 sions of law 3 and not to the findings of facts, for exceptions to 
 the findings of facts are ineffective. 4 A motion for a new trial 
 calls in question, if properly framed, the correctness of the find- 
 ings of facts, but it does not challenge the correctness of the con- 
 clusion stated on the facts. 5 An exception to the conclusions of 
 law concedes, for the purposes of the exception, that the facts are 
 correctly found, 6 but an exception does not cut off a motion for 
 new trial. 7 The exception properly precedes the motion and 
 concedes for the purpose of securing a decision upon the facts 
 stated in the finding that the facts are found as the evidence re- 
 quires, but after the exception is entered a motion for a new trial 
 
 1 Time is an essential consideration. 
 Hull v. Louth, 109 Ind. 315. In the case 
 cited it was said: "It is settled by the 
 decisions of this court, that in order to 
 save any question for review here, in a 
 case like this, an exception to the con- 
 clusions of law must be taken at the 
 time the decision is made." The court 
 cited Smith v. McKean, 99 Ind. 101; 
 Kolle v. Foltz, 74 Ind. 54; Johnson v. 
 Bell, 10 Ind. 363; Dickson v. Rose, 87 
 Ind. 103; Cincinnati, etc., Co. v. Lev- 
 iston, 97 Ind. 488. 
 
 2 Grimes v. Duzan, 32 Ind. 361; Ohio, 
 etc., Co. v. Hays, 35 Ind. 173; Lynch 
 v. Jennings, 43 [nd.276; Montmorency, 
 etc., Co. v. Rock, 41 Ind. 263; Schmitz 
 7'. Lauferty, 29 Ind. 400; Martin :■. 
 Cauble, 72 Ind. 67; Peden v. King, 30 
 Ind. 181; Board v. Newman. 35 Ind. 
 10; Cruzan v. Smith, 41 Ind. 288; Rose 
 :•. Duncan, 43 Ind. 512; Rathburn V. 
 Wheel r, m [nd. 601; Smith v. David- 
 son, 45 Ind. 396; Luirance v. Luirai 
 
 32 Ind. 19S; City of Logansport v. 
 Wright, 25 Ind. 512. 
 
 3 The correctness of a conclusion of 
 law is tested by an exception and a mo- 
 tion for a new trial is not necessary to 
 present questions upon the conclusions. 
 Rathburn v. Wheeler, 29 Ind. 601. 
 
 * Gardner v. Case, m Ind. 494, cit- 
 ing E\ parte Walls, 73 Ind. 95; West- 
 ern Union Tel. Co. v. Brown, 10S Ind. 
 538; Dodge v. Pope, 93 Ind. 480. 
 
 5 Bundy v. McClarnon, 118 Ind. 165; 
 Clayton v. Blough, 93 Ind. 85. 
 
 6 Fairbanks v. Meyers, 98 Ind. 92; 
 Wvnn v. Troy. 109 Ind. 250; Bass v. 
 Elliott, 105 Ind. 517; Helms v. Wag- 
 ner, 102 Ind. 385; Hartman v. Aveline, 
 63 Ind. 344; Gregory V. Van Voorst, 
 Sq Ind. 10S; Kurtz v. Carr, 105 Ind. 
 574; Warren v. Sohn, 112 Ind. 213: 
 Schindler v. Westover, 99 Ind. 395. 
 
 7 Robinson v. Snyder, *74 Ind. no; 
 Dodge 7'. Pope, 93 Ind. 480; Bertelson 
 V. Dower, Si Ind. 512.
 
 EXCEPTIONS, 749 
 
 may be made. 1 Exceptions to conclusions of law should be taken 
 bv the party before he takes any other steps in the case, for if he 
 takes other steps his exception will, as a general rule, be inef- 
 fective, 2 but he will not lose the benelil of his exception if h< 
 otherwise entitled to hold it because of steps taken by the ad- 
 verse party before his exception is taken. 3 The exception is 
 shown to be timely if it appears in the same entry as that in 
 which the special finding is contained. 4 
 
 § 794. Specifying Error on Exceptions to Oonelnsions of Law — 
 
 Where an exception to a conclusion of law is well reserved in 
 the trial court it is sufficient on appeal to specif}' as error that 
 the trial court erred in its conclusions of law. Such a specifi- 
 cation does not, however, present any question that requires 
 for its presentation to the trial court a motion for a new trial. 
 Where a ruling on a motion for a new trial is the one which 
 presents the questions that ruling must be specified as error. 
 
 § 795. Ruling on a Motion for New Trial — An exception to a 
 ruling upon a motion for a new trial is as essential as to any 
 other ruling. 5 A general exception is all that is required. The 
 exception taken to the ruling on the motion brings up for re- 
 view all the questions properly saved and reserved during the 
 trial, provided the motion appropriately specifies the rulings 
 of which complaint is made. An exception to a ruling upon a 
 motion for new trial does not, however, take the place of excep- 
 tions to rulings made relative to matters of trial procedure or 
 to rulings on the trial, as each ruling as it is made must be ex- 
 cepted to at the time. 6 At common law, no exception would 
 
 1 Ante, §§757,760. Long v. Williams, lev v. McNoun, 76 Ind. 380; Mansurv. 
 
 74 Ind. 1 15; Hess v. Hess, 1 iglnd. 66,68. Churchman, 84 Ind. 573. 
 
 As to effect of granting motion for new 6 The exception to the ruling on a 
 
 trial, State V. Templin, 12: Ind. 235. motion for a new trial saves questions 
 
 1 Dickson V.Rose, 87 Ind. 103; Smith upon the immediate ruling and upon 
 
 v. McKean, 99 Ind. 101. such rulings as were made during the 
 
 3 Helms V. Wagner, 102 Ind. 385. trial and appropriately excepted to at 
 
 * Western Union Tel. Co. t'. Trissal, the time, and where leave is obtained 
 
 08 Ind. ^66. See Clark v. Deutsch, 101 during the term to reduce the excep- 
 
 Ind. 491; Bodkin v. Merit. 102 Ind. 293. turns t.> writing, all such rulings maybe 
 
 5 Irwin v. Anthony, 8 Ind. 470; Hen- exhibited in one bill of exceptions
 
 ■.",() 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 lie to a ruling upon a motion for ;i new trial, as the granting or 
 isal of such a motion was considered a matter of discretion. 1 
 But, under our code, and under the codes of many of the States, 
 an exception may be taken. An exception to a ruling upon a 
 motion for new trial presents questions in some instances not 
 presented by exceptions taken before or during the trial, as for 
 instance, that upon newly discovered evidence or that upon the 
 sufliciency of the evidence to sustain the finding or verdict. 
 But, as will be shown in a subsequent chapter, a motion for a 
 new trial is necessary in many cases to preserve and make 
 available exceptions taken before or during the trial, inasmuch 
 as it is the vehicle which conveys to the court an opportunity to 
 review its rulings. As an exception must be taken to each 
 ruling, it results that an appeal does not operate as an excep- 
 tion, and so it has been held. 2 
 
 § 796. Questioning Judgments — It is true in a general sense 
 that all exceptions properly taken do question the validity of a 
 judgment, inasmuch as the ulterior purpose of entering an ex- 
 ception is to make it available as one of the steps essential to 
 
 Pitzer v. Indianapolis, etc., Co., So Ind. 
 569; Harrison v. Price, 22 Ind. 165. It 
 is essential that leave should be ob- 
 tained during the term at which the 
 ruling on the motion is made. Ryman 
 -'. Crawford, So Ind. 262, 266; Dickson 
 v. Lambert, 98 Ind. 4S7, 494; R. S. 1881, 
 §626; Vogel V. Harris. 112 Ind. 494. 
 
 1 Missouri, etc., Co. v. Chicago, etc., 
 Co., 132 U. S. 191; Ilallock v. Port 
 land, S Ore. 29; Kearney v. Snodgrass, 
 12 Ore. 311; Bird v. Dansdale, 2 Binn, 
 So. 90; Whitehurst v. IYttipher, 105 N. 
 C. 40; United States v. Jarvis, 3 Wood 
 & M. 225; McLanahan v. Universal 
 [ns. Co., 1 Pet. 169, 183; Miller v. Baker, 
 20 Pick. 217. 285; Johnson v. Macon, 1 
 W ish.(Va.), 4; Rex v. Mawbey , 6 Term 
 Rep. 619, 638; Smith v. Frampton, 2 
 Salk. 644, n; Calcraft v. Gibbs, 5 Term 
 Rep. 19, 20. This rule prevails in some 
 of the code States. St. John v. West, 
 4 How. Pr. 329: State V. Fitzhugh, 2 
 
 Ore. 227, 236; Onondaga, etc., Co. v. 
 Minard, 2 N. Y. 9S. 
 
 2 Timmons v. McOnnoughhay, S Ind. 
 483, citing Young v. McLane, 8 Ind. 
 357 and Zehnor v. Beard, S Ind. 96. It 
 seems to us that the ruling that the 
 taking of an appeal does not operate as 
 an exception is right, for several rea- 
 sons; one is, that it can not be ascer- 
 tained what particular ruling is objected 
 to. Another is that an appeal brings 
 up an entire case and specific rulings 
 can not be made available in that mode, 
 and still another is that a proposal or 
 offer to appeal would not be available 
 as an exception in a suit for the review 
 of a judgment or decree. It may 
 be observed of the reason last stated 
 that, as elsewhere shown, the de- 
 cisions place appeals and proceedings 
 to review upon substantially the same 
 footing, so far as exceptions are con- 
 cerned.
 
 EPTIONS. 761 
 
 secure the reversal of the judgment in the particular case. But 
 such exceptions, while operating upon the judgment, do not do 
 so in such a sense as to enable a party to secure the modifica- 
 tion or amendment of the judgment or decree. Where objec- 
 tions are interposed and exceptions duly taken they will avail. 
 if effective, for the reversal of the judgment, but exceptions 
 taken to rulings during the trial do not reach a defect or 
 error in the form or substance of the judgment itself. It 
 has, indeed, been held that no exception to a judgment is 
 proper. 1 This is undoubtedly true where the term " exception " 
 is used in the sense ordinarily assigned to it in code procedure, 
 but the term is sometimes employed in a different sense. It is 
 sometimes used as designating an objection to a judgment or 
 decree, and when so used it expresses quite a different meaning 
 from what it does when employed, as it ordinarily is, to denote 
 the purpose of a party to subsequently make the ruling avail- 
 able as error. The proper mode, as we believe, of questioning 
 a judgment is by moving to modify or amend and reserving an 
 exception to the ruling on the motion. This is the established 
 doctrine in this jurisdiction, 2 but a different rule is sanctioned 
 by the decisions of other courts. 3 General objections are, as 
 
 1 State v. Swarts, 9 Ind. 221. The 502; Adams 7-. La Rose. 75 Ind.471; 
 
 cardinal principle of appellate proced- YVilkerson v. Rust, 57 Ind. 172; Baker 
 
 ure that there should be a ruling upon v. Horsey, 21 Ind. 246; O'Brien v. Pe- 
 
 a question well presented to the court of terman, 34 Ind. 556; Rardin f.Walpole, 
 
 original jurisdiction, and an exception 38 Ind. 146; Quill v. Gallivan, 108 Ind. 
 
 to that ruling, supports the general doc- 235. 
 
 trine of the case cited. Where the s Vreton v. Beltezore. 17 Neb. 399; 
 
 trial court simply formulates and enters Black v. Winterstein, 6 Neb 225: La 
 
 a judgment, an exception to the judg- Fayette Bank v. Buckingham, 12 Ohio 
 
 ment in general terms presents no pre- St. 419; Morrow v. Sullender, 4 Neb. 
 
 cise question demanding a decision and 374; Parratt v. Neligh.7 Neb. 456; Jones 
 
 is not sufficient, for in order to secure v. Null, >) Neb. 253. We are unable to 
 
 the decision of a question it is neces- escape the conclusion that the doctrine 
 
 sary that there should be a motion or of the cases in this note is in conflict 
 
 objection containing appropriate speci- with the general principle that only ob- 
 
 fications. jections presented to the trial court can 
 
 1 Ante, 9 345. State ; . Wood (Sup. be considered on appeal. It seems to 
 Ct. of Ind.). 30 N. E. Rep. — ; Mans- us, also, that it is in conflict with the 
 field v.Shipp, 12S Ind. 55,58; Kissel v. fundamental principle of appellate pro- 
 Anderson, 73 Ind. 1.85; People's Sav- cedure that the court of original juris 
 ings Association v. Spears. 1 15 Ind. 2(17; diction should be given an opportunity 
 Berkev, etc., Co. V. Hascall, 123 Ind. to obviate or rectify its own errors. It
 
 52 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 we think, insufficient. 1 A trial court is entitled to be in- 
 formed of the precise questions it is required to decide, and the 
 appellate tribunal will only consider those questions. It will, 
 indeed, consider the questions upon the objections presented to 
 the trial court and no others. 2 Exceptions duly reserved upon 
 objections made during the progress of the cause are, of course, 
 saved, if other proper steps are taken, without an exception to 
 the judgment. 
 
 mav be further said that the doctrine of 
 the cases cited is in conflict with the 
 rule upon the subject of presumptions. 
 1 In Atkisson v. Martin, 39 Ind. 
 242, it was said: "Conceding that the 
 exception to the judgment might well 
 be taken without a bill of exceptions, 
 still there must have been some point- 
 ing out of the objection to the judg- 
 ment as rendered." In Walter v. Wal- 
 ter, 117 Ind. 247, 250, a general objec- 
 tion to a judgment was held insufficient, 
 the court saying: "There is an objec- 
 tion to the form of the judgment and an 
 exception, but the objection is a gen- 
 eral one. It does not point out wherein 
 the judgment was improper." In Sanxay 
 v. Hunger, 42 Ind. 44, and in Hormann 
 v. Hatmetz, 128 Ind. 353, 358, the doc- 
 trine stated in the text is explicitly af- 
 firmed. It was adjudged in Adams v. 
 La Rose, 75 Ind. 471, 475, that a bill of 
 exceptions is necessary to present the 
 question. It was there said: "There 
 is no bill of exceptions in the record, 
 showing any exceptions to the form or 
 substance of the decree, or the grounds 
 of objection or exception if any were 
 ever made. The recitals of the clerk 
 
 following of the decree that objection 
 was made and exception taken to the 
 ruling thereon are not evidences of the 
 fact. Bayless v. Glenn, 72 Ind. 5; 
 Douglass v. State, 72 Ind. 385; Teal v. 
 Spangler, 72 Ind. 380." 
 
 2 The doctrine is thus stated in Smith 
 v. Huntley, 48 Mich. 352: "The ex- 
 ception relied upon is a general excep- 
 tion to the judgment. It is now claimed 
 that error appears by a comparison of 
 the judgment with the declaration and 
 bill of particulars; in this way, that by 
 comparison, the judgment is shown to 
 be more than could have been regularly 
 given under the bill of particulars. But 
 nothing appears by the record to show 
 that the attention of the court was ever 
 called to such question, or that he ever 
 saw the bill of particulars. We review 
 only the rulings of the circuit judge, 
 and to enable the party to raise the 
 question, he should either have ob- 
 tained special findings which he could 
 then claim do not support the judg- 
 ment, or he should have had a ruling 
 upon the point and taken his exception 
 to the ruling."
 
 CHAPTER XIII. 
 
 BILLS OF EXCEPTIONS. 
 
 4 797. Object of a bill of exceptions. 
 79S. The duty of settling a bill of ex- 
 ceptions is judicial. 
 
 799. By whom the bill should be 
 
 signed. 
 
 800. Time within which the bill may 
 
 be signed. 
 
 801. How the order extending time 
 
 must be shown. 
 
 802. Presenting the bill to the judge. 
 
 803. Time can not be extended after 
 
 the close of the term. 
 
 804. Bills filed in term. 
 
 805. Filing after term. 
 
 806. Form of the bill. 
 
 807. Requisites of the bill — General 
 
 doctrine. 
 
 508. Stating the exceptions. 
 
 509. Facts on which exceptions are 
 
 based must be stated. 
 
 810. Duty of the trial judge. 
 
 811. Effect of the statements and re- 
 
 citals of the bill. 
 
 812. Making error apparent. 
 
 813. Rulings made in the formation 
 
 of issues. 
 
 § S14 
 
 816 
 
 S17 
 
 81S. 
 
 819. 
 
 S20. 
 
 Collateral motions. 
 
 Recitals in direct motions. 
 
 Rejected pleadings. 
 
 Instruments that may be brought 
 into the record by a bill of ex- 
 ceptions. 
 
 Making written instruments 
 part of the bill by reference — 
 General rule. 
 
 Instruments once properly in 
 the record need not be copied 
 in the bill. 
 
 Oral evidence. 
 821. Stenographer's report of the evi- 
 dence. 
 8j2. Making stenographer's report 
 part of the bill. 
 
 The rule whore all the evidence 
 must be in the record. 
 
 The general recital not always 
 controlling. 
 S25. Amendment of bills of excep- 
 tions. 
 826. Application for the order to 
 amend. 
 
 S23. 
 
 82 
 
 § 797. Object of a Bill of Exceptions — A bill of exceptions is 
 necessary to bring into the record matters which are not parts 
 of the record proper. 1 There is no necessity for a bill of exeep- 
 
 1 In Young v. Martin, S Wall. 354, 
 357, it was said: "It is true, as stated 
 by counsel, that the object of a bill of 
 exceptions is to make matter of record 
 what would not otherwise appear .is 
 such, and that no bill is necessary 
 where the error alleged is apparent 
 upon the record." In Gavin :'. State. 
 
 56 Ind. 51, the following definition of a 
 bill of exceptions was adopted: " A 
 formal statement in writing, of excep- 
 tions taken to the opinion, decision or 
 direction of a judge delivered during 
 the trial of a cause, setting forth the 
 proceedings on the trial, the opinion or 
 decision given, and the exception taken 
 
 48 
 
 (753)
 
 754 ERROR IN JUDICIAL PROCEEDINGS. 
 
 tions where the record proper exhibits the exceptions in due 
 form, the grounds upon which the ruling or decision proceeds, 
 and the decision. The object of the bill is to present for review 
 questions not presented by the record proper, so that the ques- 
 tion whether a bill of exceptions is required is to be determined 
 by ascertaining whether the matters involved are fully pre- 
 sented by the intrinsic record, that is, by the record composed 
 of the elements made necessary by law to the record proper. 1 
 
 § 798. The Duty of Settling a Bill of Exceptions is Jndicial— We 
 
 have incidentally shown that the duty of framing and settling 
 a bill of exceptions is judicial, 2 but the important influence ex- 
 erted by this doctrine makes it necessary to consider the sub- 
 ject somewhat more carefully. We do not mean to be under- 
 stood as declaring that the judge who grants the bill must pre- 
 pare it ; we mean simply that he must settle it and cause it to 
 express the truth. It must embody the facts as, in his judg- 
 ment, they exist ; he can not delegate his authority nor can he 
 substitute the judgment of any other person for his own. 3 It is 
 the duty of counsel to prepare and tender the bill, but it is the 
 
 thereto, and sealed by the judge in testi- 202. The subject will be necessarily 
 mony of its correctness." See Doctor considered from a point of view differ- 
 v. Hartman, 74 Ind. 221, 230; Suydam ent from that occupied in the antecedent 
 v. Williamson, 20 How. (U. S.) 427; paragraphs designated in the para- 
 Williams v. Norris, 12 Wheat. 117; graphs which follow. 
 Leveringet'. Dayton, 4Wash.CC. 698; 2 Seymour, etc., Co. V. Brodhecker 
 
 Danks v. Rodeheaver, 26 W. \a. 274; (Ind. Sup. Ct.), 30 N. E. Rep. ; Mc- 
 
 Hamlin v. Reynolds, 22 111. 207; Swag- Coy v. Walls (Ind. Sup. Ct.), 30 N. E. 
 
 gard v. Hancock, 25 Mo. App. 596; Rep. . In Emmerson v. Clark, 2 
 
 State v. Anderson, 42 La. Ann. 474, 7 Scam. 489, it was said: "It was the duty 
 
 So. Rep. 687; Wampler v. State, 28 of the court to sign the bill of exceptions 
 
 Tex. App. 352, 13 S. W. Rep. 144; if it was correct. If it does not truly 
 
 Davis v. State, 75 Texas, 420, 12 S. W. state the case the judge should refuse to 
 
 Rep. 957; Herbison v. Taylor, 29 Neb. sign it. It was not in the power of the 
 
 217. 45 X.W. Rep.626; Cole v. Driskell, court to delegate its authority. It is a 
 
 [Blackf. 16; State f.Carr, 37 Kan. 421, judicial act. It then stands in this 
 
 15 Pac. Rep. 603; Hall v. Durham, 109 court as if no exception had been taken 
 
 Ind. 434, 9 N. E. Rep. 926; York, etc., to the instructions of the court below." 
 
 Co. v. Myers, 18 How. (U. S.) 243, 251. Byrne v. Clark, 31 111. App. 651. 
 
 1 We have elsewhere shown what 3 Toledo, etc., Co. v. Rogers, 48 Ind. 
 
 matters are regarded as parts of the 427; Poteet v. County of Cabell, 30 W. 
 
 record proper. Ante, §§ 190, 191, 196, Va. 5S, 3 S. E. Rep. 97.
 
 BILLS OF EXCEP1 lo.NS. 755 
 
 duty of the judge to correct or revise it, so that it will express 
 his own judgment and understanding of the facts. It is imma- 
 terial by whom the clerical work of preparing the bill is done, 
 whether by a stenographer or any one else, provided the judge 
 judicially determines that it is correct and evidences his decis- 
 ion by signing the bill. 1 The rule that the duty of settling and 
 signing bills of exceptions is judicial requires that all matters 
 required to be exhibited by a bill should be placed there by the 
 judge and not by a ministerial officer, although the clerical work 
 may be done by counsel, stenographers, or other persons. It 
 seems to follow from the rule stated that a bill must be complete 
 when it receives the signature of the judge. 2 Parties can not by 
 stipulation make a complete and effective bill of exceptions. 3 
 As the duty of settling the bill is judicial the judge who tries 
 the case can not be compelled by mandamus, as we have else- 
 where shown, to embody in it matters, which, in his judgment, do 
 not properly belong in it. 1 The duty of the judge, if it is judicial, 
 as we assume it is, can not be devolved upon a ministerial 
 officer, so that what shall constitute a bill of exceptions can 
 not be determined by a clerk, stenographer, or any person 
 other than the judge. It would seem to result that a stenogra- 
 pher's report of the evidence can not, on principle, be part of 
 a bill of exceptions unless made so by the judge's act, and it is 
 
 1 Dick r. Mullins, 128 Ind. 365; Hill of the bill by reference. This does not, 
 v. Hagaman, S4 Ind. 2S7; Bradway v. however, oppose the doctrine of the 
 Waddell, 95 Ind. 170; Stagg v. Comp- text that settling the bill is a judicial 
 ton, 81 Ind. 171; Williams V. Pendle- duty, for the identification of the writ- 
 ton, etc., Co., 76 Ind. S7. ings and the noting of a proper place 
 
 1 The early decisions of this court for their insertion is still the exercise 
 
 enforced this doctrine with strictness, of judicial power. 
 
 for they held that the bill ought not to "Clark v. McCrary, So Ala. no; 
 
 be signed until it was complete, although Herman :•. Jeffries. 4 Mont. 513; State 
 
 documentary evidence was the only f.Weiskittle, 61 Md. 48; Spencer 
 
 part omitted. Board of Trustees of Louis, etc., Co., 79 Mo. 500; Coburn v. 
 
 Vincennes University v. Embree, 7 Murray, 2 Me. 336; Hodgden v. Com- 
 
 Blackf. 461; Huflf v. Gilbert, 4 Blackf. missioners, 10 Kan. 637; Leonard v. 
 
 19; Spears v. Clark, 6 Blackf. [67; Doe Warriner, 20 Wis. 41; Wessels : 
 
 v. Makepeace, S Blackf. 575; Mills V. man. 66 Mich. 343, 33 X. W. Rep. 510; 
 
 Simmonds, 10 Ind. 464; Irwin v. Smith, Howard v. Ross (Wash.), 28 Lac. Rep. 
 
 72 Ind. 482, 4S9. But, as we shall here- 526. 
 
 after show, the statute provides that * Ante, p. 51 and authorities 
 
 written instruments may be made part cited in the note.
 
 '•Jlj 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 quite certain that statements or recitals of the clerk can not De 
 deemed parts of the bill. 1 
 
 § 799. By Whom the Bill should be Signed— Where the judge 
 who tried the case is still the incumbent of the office there can 
 be no doubt upon the question as to who should sign the bill, 
 for the authorities are well agreed that it must be signed by the 
 judge who tried the case. 2 This rule applies to a special judge, 
 for he has authority to sign a bill of exceptions tendered within 
 the time granted by him. 3 Our decisions declare that where a 
 judge dies, or goes out of office by resignation, or because of 
 the expiration of his term, he can not sign the bill of excep- 
 tions, but that it must be signed by his successor. 4 It seems 
 difficult to sustain the doctrine of our cases, 5 for it is not easy 
 
 1 It is obvious from what is said in 
 the text that the report of a stenogra- 
 pher can not be made part of a bill of 
 exceptions otherwise than by the judge. 
 It is very doubtful whether the legisla- 
 ture can even by express enactment 
 make a stenographer's notes, or the 
 notes of any one else, part of the bill, 
 inasmuch as nothing can become part 
 of it except by judicial action and only 
 a judge can take such action. It is, at 
 all events, quite clear that where there 
 is doubt, the stenographer's notes can 
 not be considered as part of a bill. 
 
 1 Law v. Jackson, 8 Cow. 746; Hal- 
 stead v. Brown, 17 Ind. 202; Travelers 
 Insurance Co. v. Leeds, 38 Ind. 444; 
 Sire v. Ellithorpe, etc., Co., 137 U. S. 
 579; Chicago, etc., Cc. v. Johnson, 34 
 111. App. 351; Perkins v, Bakrow, 39 
 Mo. App. 331; Connelley v. Leslie, 28 
 Mo. App. 551; Hancock v. Town of 
 Worcester (Vt.). 18 Atl. Rep. 1041; 
 Labold v. Wilson, 4 Ohio Cir. Ct. 345; 
 / [•arte Bradstreet, 4 Peters, 102; 
 Stanaford v. Parker(Ky.). 15 S.W. Rep. 
 7S4; Fielden v. People, 12S 111. 595, 21 
 N. E. Rep. 584. See, generally, State 
 :. Harris, 39 La. Ann. 22S; Wessele v. 
 Bi email, 66 Mich. 343. 
 
 3 Shugart 7*. Miles, 125 Ind. 445, 446, 
 citing Perkins v. Hayward, 124 Ind. 
 445; Staser v. Hogan, 120 Ind. 207, 208; 
 Beitman v. Hopkins, 109 Ind. 177; 
 Wilson -'. Piper, 77 Ind. 437, 440. 
 
 4 Smith v. Baugh, 32 Ind. 163; Hed- 
 rick v. Hedrick, 28 Ind. 291; McKeen 
 V. Boord, 60 Ind. 2S0; Reed v. Wor- 
 land, 64 Ind. 216; Lerch v. Emmett, 44 
 Ind. 331; State v. Murdock, 86 Ind. 
 124; Bowlus v. Brier, 87 Ind. 391; To- 
 ledo, etc., R. Co. v. Rogers, 48 Ind. 427. 
 
 5 In Ketcham v. Hill, 42 Ind. 64, 70, 
 the case of New York, etc., Co. v. Wil- 
 son, 8 Pet. 291, is cited as sustaining 
 the doctrine, but that case certainly 
 gives it no support. All that is ad- 
 judged in New York, etc., Co. v . Wil- 
 son, is that the successor of a judge 
 who had died might be compelled by 
 mandamus to sign a judgment. Bu1 
 the question in a case such as that is 
 radically different from the question of 
 who shall sign a bill of exceptions. 
 The determination of what a bill of 
 exceptions shall contain is a judicial 
 act, in the strictest sense of the term. 
 A judge can not be compelled to put 
 into a bill matters which he decides do 
 not belong there. Ante, § 516, p. 43S.
 
 BILLS 01 EXCEPTIONS. 
 
 757 
 
 to conceive how an instrument importing absolute verity can be 
 executed by one who has no knowledge whatever of the mat- 
 ters it assumes to state. Nor is it easy to conceive how such a 
 doctrine can be harmonized with the fundamental principle 
 that the statements of the judge upon disputed questions of fact 
 concerning matters occurring in court are conclusive. It is 
 difficult for us to escape the conclusion that the courts are right 
 which hold that the successor of the judge who tried the case- 
 can not sign a bill of exceptions where there is a disputed ques- 
 tion of fact, that is, a dispute as to what the bill should contain, 
 and that the proper course where there is no judge who can 
 sign is to award a new trial. 1 
 
 § 800. Time within which the Bill may be Signed— At common 
 law a bill of exceptions must be completed, signed and filed 
 during the term. 1 ' In this State and in some other States the 
 time may be extended by an order of court. But the order can 
 not be made after the close of the term. 
 
 § 801. How the Order Extending Time must be Shown— The rec- 
 ord must show the order'giving time beyond the term in which 
 to complete the bill of exceptions. The order must appear by 
 an entry of record. A recital in the bill that time was given is 
 not sufficient. 3 
 
 Nor can he delegate the power to sign 
 the bill. Toledo, etc., Co. v. Rogers. 4 S 
 Ind. 427. See, also, as to the character 
 of the duty. Emerson v. Clark, 2 Scam. 
 4S9; People v. Anthony, 25 111. App. 
 532. S. C. 21 N. E. Rep. 7S0. 
 
 1 Consaul v. Lidell, 7 Mo. 250; Cra- 
 norr. School District, iS Mo. App. 397; 
 Wright :•. Judge of Superior Court. 41 
 Mich. 726. 
 
 3 United States v. Carey, no U. S. 
 51; Kshinka :\ Cawker, 16 Kan. 
 63; Gallaher v. Southwood. 1 Kan. 143; 
 Brown v. Rhodes. 1 Kan. 559. 
 
 3 Benson v. Baldwin, 108 Ind. 106; 
 City of Indianapolis V. Kollman, ;<) Ind. 
 504; Nye v. Lewi-. 65 Ind. ii<>, Schoon- 
 over v. Reed, '•; Ind. 313; Goodwin v. 
 Smith. 72 Ind. 113; Applegate v. White. 
 
 79 Ind. 413; Robinson v. Johnsoi 
 Ind. 535; Greenup v. Crooks, 50 Ind. 
 410; Rinehart v. Bowen, 44 Ind. 
 Singer, etc., Co. V. Struckman, 72 Ind. 
 601; Fulkerson v. Armstrong, 39 Ind. 
 472; Columbus, etc., Co. v. Powell, 
 40 Ind. 37; Bargis v. Pamir, 45 Ind. 
 41; Logansport, etc., Co. v. Davidson, 
 51 Ind. 472; Louisville, etc., Co. v. 
 Harrigan, .(4 Ind. 245; Loy v. 1. ■ 
 Ind. 404; La Rose v. Logansport Nat. 
 Bank, 102 Ind. 332; Robinson v. An 
 derson, [06 Ind. 152. The ordergrant- 
 ing time must be made in term. City 
 of Westminster v. Shipley, 68 Md. 6io, 
 1 5 Atl. Rep. 365; Wade V. Bryant 
 . 7 S.W B 3 1 
 
 State. 25 Tex 22.,. S S. W Re
 
 foi 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 802. Presenting the Bill to the Judge — If the bill is presented 
 to the judge for his signature within the time prescribed by the 
 order, 1 the party does not lose his right to have the bill signed 
 and tiled. The bill must show on its face that it was presented 
 within the time allowed. It is not sufficient that the date be 
 indorsed on the bill. 2 
 
 § 803. Time can not be Extended after Close of the Term — The 
 
 time fixed during term can not be extended by an order in va- 
 cation. 3 The one grant of time beyond the term exhausts the 
 power of the court. It will not avail a party to show that there 
 has been a grant of additional time, for with the close of the 
 term the authority of the court terminates. 4 The Indiana cases 
 
 1 If the bill is presented to judge in 
 due time, the failure to sign in time 
 will not impair the rights of the party. 
 Creamer v. Sirp, 91 Ind. 366; Hamm v. 
 Romine, 9S Ind. 77; Robinson v. An- 
 derson, 106 Ind. 152. 
 
 2 Buchart v. Burger, 115 Ind. 123; 
 Bierly v. Harrison, 123 Ind. 516; Orton 
 v. Tilden, no Ind. 131; Hormann v. 
 Hartmetz,i28Ind.353; McCoy r. State, 
 121 Ind. 160; Buckner v. Spaulding, 127 
 Ind. 229; City of Plymouth v. Fields, 
 125 Ind. 323; White v. Gregory, 126 
 Ind. 95; McCormick, etc., Co.». Maas, 
 121 Ind. 132. Where the bill appears 
 from the record to have been signed and 
 filed within the time allowed, the absence 
 of a statement of the date of its presenta- 
 tion to the judge is unimportant Hale 
 :. Matthew, 11S Ind. 527; Shewalter -'. 
 Bergman, 123 Ind. 155; Short v. Chi- 
 cago, etc., Co., 79 Iowa, 73; Swem 7'. 
 ( iii en, 9 Col. 35S. 
 
 3 Brouse V. Price, 20 Ind. 216; Har- 
 rison v. Price, 22 Ind. 165; Van- 
 nets v. Bradley, 29 Ind. 3S8; McEl- 
 fatrick t. Coffroth, 29 Ind. 37; Earl V. 
 Dresser, 30 Ind. n; Thompson v. Egle- 
 ton, 33 Ind. 300; Vandoren :■. Kimes 
 Ind. 582; Whitworth v. Sour. 57 Ind. 
 m;; Robinson v. Johnson, 61 Ind. 535; 
 Davidson v. State, 62 Ind. 276; Lotz :■. 
 
 Briggs, 50 Ind. 346; Rolcson v. Ilerr. 14 
 Ind. 539; Simonton v. Huntington, etc., 
 Co., 12 Ind. 380; Terre Haute, etc., Co. 
 t'.Wilson, 16 Ind. 102; Sweetzer v. Mc- 
 Crea, 97 Ind. 404; Kansas City v. Allen, 
 2S Mo. App. 133. In Rigler v. Rigler, 
 120 Ind. 431, it was said: "In respect 
 to presenting or signing bills of excep- 
 tion after the time limited therefor has 
 expired, the only proper course to pur- 
 sue is to make an application to the 
 presiding judge to have the date in- 
 serted in the bill nunc pro tunc!' We 
 suppose that the court did not mean to 
 decide in the case from which we have 
 quoted that a party has a right to have 
 such an entry in ordinary cases. He 
 certainly can have no such right unless 
 a strong and clear case of fraud or ac- 
 cident is made. Duvall v. Mastin, 28 
 Mo. App. 526; St. Louis, etc., Co. v. 
 Holman, 45 Ark. 102; Louisville, etc., 
 Co. v. Turner, Si Ky. 489. 
 
 4 Bartley v. State, in Ind. 35S; Mar- 
 shall v. State, 123 Ind. 128. See Hake 
 v. Strubel, 121 111. 321, 12 N. E. Rep. 
 676; Markland v. Albes, 81 Ala. 433, 2 
 So. Rep. 123; Franco-Texan Land Co. 
 v. Chaptive (Tex.), 3 S. W. Rep. 31; 
 Hawes v. People, 129 111. 123, 21 N. E. 
 Rep. 777.
 
 BILLS OF EXCEPTION 
 
 referred to in the note to the last sentence declare that the 
 time can not be extended by agreement in criminal cases, but 
 the cases cited in the former note indicate that time may be 
 extended by agreement, in other cases. 
 
 § 804. Bills filed in Term — There is an important difference 
 between cases where the bill is filed in term and those w I 
 the bill is not filed until after the close of the term. In the lat- 
 ter case the record entry must affirmatively show, as we have 
 said in a preceding paragraph of this chapter, that time bevond 
 the term was given, while in the former case there is no neces- 
 sity for such a record statement There is substantial agree- 
 ment that there need be no such record entry, although there is 
 some diversity of opinion as to the grounds upon which the 
 conclusion rests. 1 We suppose that where the bill is filed dur- 
 ing the term the fair and reasonable presumption is that time 
 to reduce the exceptions to writing was given at the time they 
 were taken, inasmuch as any other conclusion would be op- 
 posed to the general principle that what is done during the term 
 is presumed to have been effectively and rightfullv done unless 
 the contrary appears. 
 
 § 805. Filing After Term — Abill of exceptions, although signed, 
 is not part of the record until it is tiled. A record entrv must 
 be made showing its filing and the date. It has been held in 
 many cases that the filing must be shown by an independent 
 record entry and that it can not be shown bv a recital in the 
 bill. 2 But it seems clear under our present statute that if the 
 
 1 Wysor v. Johnson (Ind. Sup. Ct.), Fletcher V. State, 40 Ind. 124; Stewart 
 
 30 N. E. Rep. 144; Noblesville, etc., Co. v. State, 24 Ind. 14:; Dunn - 
 
 : . Teter, 1 Ind. A.pp, 322; Pitzer v. In- Ind. 259; Fitzenrider v. 1 Ind. 
 
 dianapolis, etc., Co., 80 Ind. 569; Boyce 23S; Porl v. Russell, 36 Ind. 60; Jenks 
 
 v. Graham, 91 Ind. |.2o; Calverl v. -■. State, 39 [nd. 1. 
 
 State, 91 Ind. 1.73; Landers v. Beck, 92 ' In Guirl v. Gillett, 1:4 Ind. 501. the 
 
 Ind. 49, 52; Lake Erie, etc., Co. v. Fix, rule was thus expressed : "A bill of ex- 
 
 SS Ind. 381; Voider v. Sidener, S6 Ind. ceptions only becomes a part of the rec- 
 
 545; Hoard v. Eperson, 50 Ind. 275; ord after it has been duly presented to the 
 
 Flory v. Wilson. S3 Ind. 391; Harrison presiding judge and has been signed and 
 
 :•. Price, 22 Ind. [65; Johnson v. Bell, tiled by him. The hill itself can not 
 
 10 Ind. 303; Ogborn v. Hoffman, 52 show when it was filed. This must ap- 
 
 Ind.439; Nichol v.Thomas, 53 Ind. 42; pear by the record independent of the
 
 •60 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 bill is presented to the judge in due season the bill is effective 
 although not signed or filed until after the expiration of the pre- 
 scribed time. This is so for the reason that when so presented 
 it becomes the duty of the judge to sign and file it. 1 The bill 
 can not, however, be part of the record until it is filed. 2 But 
 the time of filing is no longer the important consideration, for 
 if the bill is presented to the judge and that properly appears 
 in the bill, it will be a part of the record, although not filed un- 
 til after the time allowed has expired. 3 
 
 § 806. Form of the Bill — The form of a bill of exceptions is of 
 comparatively little importance. The courts will give it a rea- 
 sonably liberal construction, but they will not supply omissions 
 nor remedy material defects. If the substance of the bill is 
 such as to fully and fairly present the questions, purely formal 
 defects and irregularities may be disregarded. 4 
 
 bill." Engleman v. Arnold, nS Ind. Si; 
 Jones v. Jones, 91 Ind. 72; Columbus, 
 etc., Co. v. Powell, 40 Ind. 37; Fulker- 
 son v. Armstrong. 39 Ind. 472; City of 
 Indianapolis v. Kollman, 79 Ind. 504; 
 Logansport, etc., Co. v. Davidson, 51 
 Ind. 472; La Rose v. Logansport, etc., 
 Bank, 102 Ind. 332; State v. Leach. 71 
 Iowa, 54; Mogan v. Thompson, 13 Ore. 
 230; Horner v. Hoadley, 97 Ind. 600; 
 Watson v. Watson, 53 Ark. 415, 14 S. 
 W. Rep. 622. 
 
 1 Vincennes, etc., Co. v. White, 124 
 Ind. 376; Terre Haute, etc., Co. v. Bis- 
 sell, 108 Ind. 113. 
 
 2 Louisville, etc., Co. V. Harrigan, 94 
 Ind. 245; Dunn v. Hubble, Si Ind. 489; 
 Shulse V. McWilliams, 104 Ind. 512; 
 Stewart v. State, 113 Ind. 505; Hessian 
 v. State, 116 Ind. 58; Pratt v. Allen, 95 
 Ind. 404; Loy v. Loy, 90 Ind. 404; 
 Sherlock v. First National Bank, 53 
 Ind. 73. 
 
 3 The appropriate mode of evidencing 
 the filing is to make a vacation order. 
 This when copied into the record shows 
 the filing is the correct mode. Dinwid- 
 die v. Jacobs, 82 Mo. 195; Jones v. 
 
 Christian, 24 Mo. App. 540. It is, how- 
 ever, held by some of our cases that 
 where the clerk's certificate recites that 
 the transcript contains all papers on 
 file, the filing is sufficiently shown. 
 Hull v. Louth, 109 Ind. 315, 336; Arm- 
 strong v. Harshman,93 Ind. 216; Oliver 
 v. Pate. 43 Ind. 132; Porter v. Choen, 
 60 Ind. 338, 346. But, as the filing 
 must appear to be within the time 
 granted, the certificate of the clerk can 
 not be effective unless it appears to 
 have been made within that time. It 
 seems to us that the true and safe rule 
 is to require a vacation order in all 
 cases, but, as we have seen, our decis- 
 ions declare a somewhat different doc- 
 trine. 
 
 4 In the case of Kleinschmidt v. Mc- 
 Andrews, 117 U. S.2S2, 2S6, it was said: 
 "And whatever brings upon the record, 
 properly verified by the attestation of 
 thejudge.mattersoffact occurring at the 
 trial, on which the point of law arises, 
 which enters into the ruling and decis- 
 ion of the court excepted to, answers 
 sufficiently the proper description of a 
 bill of exceptions." To substantially
 
 BILLS ' >F EX< EPTIONS. 
 
 761 
 
 § 807. Requisites of the Bill — General Doctrine— It is always 
 sential that the bill should show the matters of fact out of which 
 the matters of law arise, the grounds of objections where spe- 
 cific objections are required, and the ruling or decision to 
 which the exception is taken. 1 The time of taking the excep- 
 tions must be shown, since, as we have elsewhere said, an 
 ception must be taken at the time the ruling or decision sought 
 to be brought in review is made. 2 The statements of the bill 
 must be so full and definite as to present to the appellate tri- 
 bunal all matters essential to a clear and accurate apprehension 
 of the questions involved. 3 A bill of exceptions is taken by a 
 party for the purpose of making it appear to the reviewing 
 court that there is error in the proceedings of the trial court 
 and that he has taken the necessary steps to make the error 
 
 the same effect are the cases of Wilson 
 v. Giddings, 2S Ohio St. 554, 561 ; Ach- 
 eson v. Sutliff, iS Ohio. 122. 
 
 1 In the Estate of Page. 57 Cal. 23S, 
 239, the court said: "An exception is an 
 objection upon a matteroflawtoa decis- 
 ion made by a court. To make it effect- 
 ual in a bill of exceptions the objection 
 should be stated and also the ground 
 upon which it was made." The court 
 cited Griswold v. Sharp, 2 Cal. 17, 23: 
 Touchard v. Crow. 20 Cal. 150. 163; 
 Tucker V. Jones, S Mont. 225. 19 Pac. 
 Rep. 571; Blizzard v. Hayes, 46 Ind. 
 166; Grubbs v. Morris. 103 Ind. 166; 
 Mooney V. Kinsey, 90 Ind. 33; Louis- 
 ville, etc., Co. v. Worley, 107 Ind. 520. 
 See ante, § 771. "The ground- of ob- 
 jections must appear of record." See. 
 also, Stump v. Fraley, 7 End. 679; Wiler 
 v. Manlev. 51 Intl. [69; Richardson v. 
 llowk.45 Ind. 451; McKinney v. Shaw, 
 etc., Co., 51 End. 219; Miles v.Vanhorn, 
 17 End. 245; Baker v. McGinnis6, 22 
 Ind. 257; Ammerman v. Crosby, 26 End. 
 
 45 1- 
 
 2 Leyner v. State. 8 End. 490; John- 
 son v. Bell. 10 End. 303; State V. Ra- 
 bourn, 14 Ind. 300; Crandall v. First 
 National Bank, 61 Ind. 349. 1' 
 
 Makepeace. S Blackf. 575; Tucker v. 
 
 Jones, 8 Mont. 225. 19 Pac. Rep. 571; 
 
 Sohn -. Marion, etc.. Co., 73 Ind. 77; 
 
 Nye v. Lewi-, 65 Ind. 326; Roy v. 
 
 Union, etc.. Co. (Wyo.), 26 Pac. Rep. 
 Pacific Exp. Co. V. Malin, 132 I '. 
 
 S. 531; Kendell v. Judah, 63 Ind. 291 ; 
 
 Walton v. United States. 9 Wheat. 651 ; 
 
 Sheppard v. Wilson, 6 How. (U. S.) 260; 
 
 Poole v. Fleeger, 11 Pet. 185; Brown v. 
 
 Clarke. 4 How. (U. S.) 4. 15; Turner :. 
 
 Yates, id How. (U.S.) 14. In the ea-e 
 
 last named it was said: "The record 
 
 must show that the exception was taken 
 
 at that stage of the trial when its cause 
 
 arose." 
 
 3 In Hooper V. State (Texas). [< - 
 W. Rep. 655, it was declared that: 
 " Bills of exceptions must he so full and 
 oertain in their statements that in auA 
 of themselves they will disclose all that 
 is necessary to manifest the supposed 
 error. Eldrid : . 1 . Tex. App. 
 
 208; Davis V. State. 14 Tex. A pp. 645; 
 Walker:. State, 9 Tex. App. 200; Hen- 
 ning V. State. 2 \ Tex. App. 315,6 S.W. 
 Rep. 137" See. aKo. Thompson v. 
 State. 29 Tex. App S. W. Rep. 
 
 206.
 
 7(32 ERROR IN JUDICIAL PROCEEDINGS. 
 
 available. 1 A bill which shows a wrong ruling but does not 
 contain enough to make it appear that the proper steps were 
 taken to make the wrong ruling available as error is ordinarily 
 insufficient. It is, of course, true that in some instances the 
 record proper discloses some of the steps necessary to impress 
 upon a wrong ruling the element of availability, and where 
 this is so there is no necessity for incorporating in the bill what 
 is part of the intrinsic record, or record proper. As an illus- 
 tration of the effect of our statement that where one of the steps 
 required to make a wrong ruling available appears by the rec- 
 ord the bill need not show it. we may take the case where evi- 
 dence was wrongly excluded and there is a motion for a new 
 trial ; in such a case the excluded evidence must be brought 
 into the record as offered, 2 but the bill need not set forth the 
 motion for a new trial, as that motion, under our practice, is 
 part of the intrinsic record. 3 
 
 § 808. Stating the Exceptions — In a work on practice it is said 
 that it is the duty of counsel to take a bill upon each exception 
 stated, and a bill stating several distinct exceptions is not a 
 proper one. 4 But this, as we believe, is a misapprehension of 
 the rule, as the cases referred to by the authors who declare 
 the doctrine stated will show upon careful examination. 5 What 
 the rule requires is that each exception shall be taken at the 
 time the ruling is made and to the specific ruling, for excep- 
 tions can not be taken in gross, but it does not require that 
 there shall be a separate bill for each exception. Where the 
 exceptions are taken at the time to specific rulings and time is 
 
 1 Tucker v. Smith. 68 Tex. 473, 3 S. presently show it is only the motion 
 
 W. Rep. 671; Monroe v. Snow, 33 111. that is part of the record proper. In 
 
 App. 230, S. C. 23 N. E. Rep. 401. In some jurisdictions the motion for a new 
 
 the case last cited ii was held that the trial must be embodied in the bill of 
 
 bill will be most strongly construed exceptions. Demske v. Hunter, 23 Mo. 
 
 against the party by whom it is taken. App. 466; Furher v. Cunway, 23 Mo. 
 
 3 Craft v. Dalles City (Ore.), 27 Pac. App. 412; NcNeil v. Home Ins. Co., 
 
 Rep. [63; Stanley V. Smith, 15 Ore. 505, 30 Mo. App. 306. 
 
 16 Pac. Rep. 174. *Troubat v. Haleys Pr., § 701. 
 
 8 Martin v. Harrison, 50 Ind. 270; 5 Rogers V. Marshall. 1 Wall. 044; 
 
 Moon- v. State, 65 Ind. 213; Hunter v. Harvey V. Tyler, 2 Wall. 328. 
 i [atfield, 68 Ind. 416. Bui as we shall
 
 BILLS OF EXCEP1 763 
 
 then obtained to reduce the exceptions to writing, they may 
 all be exhibited in one bill. In other words, it is not always 
 necessary that there should be a separate bill for each excep- 
 tion, 1 although there maybe instances where the time of taking 
 exceptions and the character of the exceptions are such as to 
 require separate bills. The bill must, however, state each ex- 
 ception separately, the specific grounds on which it rests 
 (where such grounds are required to be stated), and show each 
 ruling to which the exceptions were addressed. 2 
 
 § 809. Facts on which Exceptions are Based must be Stated— It 
 
 is not enough to state exceptions in the bill. The facts on 
 which the exceptions are based are quite as important as the 
 exceptions. 3 Where the facts are not stated there is nothing 
 demanding consideration, for without them neither the charac- 
 ter nor the influence of the ruling can be ascertained or de- 
 termined. 
 
 § 810. Duty of the Trial Judge— It is the duty of the trial judge 
 to cause all matters to be incorporated in the bill of exceptions 
 as the law requires before he signs the bill. 4 As we shall pres- 
 
 1 In Mills v. Buchanan, 36 Ind. 490. Miss. 502; Tit/or v. Indianapolis, etc.. 
 
 502, it was said: "A bill of exceptions Co., So Ind. 569. 
 
 may be general, embracing everything 3 Kelly v. Murphy, 70 Cal. 560, 12 Pac. 
 
 that has to be made part of the record Rep. 467; Vass v. Commonwealth, 3 
 
 by such bill, or it may embrace but one Leigh (Va. . 786, S. C. 24 Am. Dec. 
 
 question." This general doctrine is 695; Hennessey v. State, 23 Tex. App. 
 
 declared in Brown v. Hall, 85 Va. 146, 340, 5 S. \V. Rep. 215; Phoenix, 
 
 7 S. E. Rep. 1S2. See Anderson v. Co. v. Raddin, 120 U. S. 183, 7 Sup. 
 Ames, 6 Iowa, 4S6. Ct. Rep. 500; State V. Clement. 1 5 ( 're. 
 a Doe v. Peeples, 1 Ga. 1; State v. 237, 14 Pac. Rep. 41. >; Johnson v. Jen- 
 Weber, 22 Mo. 231; Church :■. Drum- nings, to Gratt. 1, S. C. 60 Am. Dec. 
 mond,7 Ind. 17; Porche v. La Blanche, 323, and note; Kennedy*. Shaw, 38 
 12 La. Ann. 77S; Brown v. Brown, 7 Ind. #4; Berlin v. Oglesbee, 65 Ind. 
 
 Mo. -8S; Doe V. Natchez Ins. Co., 8 S. 308; Johns, mi V. State. 65 Ind. 269; Mc 
 & M. 1 Miss.) 197; Fields V. Hunter. 8 C rears V. Cockrill, J Kan. 37; Inferior 
 
 Mo. us-. Morrissej v. People, n Mich. Court v. Monroe, 21 Ga. 17c J" 
 327; Johnson v. Jennings, to Gratt. 1. v. Ballew, 2 Tort, State x 
 
 There may be several hills, and where Jack-on. 12 I. a. Ann. 071 
 
 they refer to one subjeel all may he 4 It is undersl I ^i course, that It 
 
 considered. Doe V. (iildart.o Miss. 5 is the duty of 1 trial udge to give a full 
 
 How.) 606; Lindsey v. Henderson, 27 and air bill of exceptions Thesetthng
 
 764 ERROR IX JUDICIAL PROCEEDINGS. 
 
 ently show, the duty of the judge is to cause all parol evidence 
 to be embodied in the bill before he signs it, and, under the 
 code, to prevent any documentary evidence from being inserted 
 unless such evidence is appropriately identified and the proper 
 place for its insertion indicated by the words, "here insert." 
 It is sufficient for our present purpose to say that where the 
 bill is not complete the judge should not sign it. The reason 
 for this rule will appear in the paragraphs that follow. 
 
 § 811. Effect of the Statements and Recitals of the Bill— A bill 
 of exceptions, signed, filed and made part of the record as the 
 law requires, imports absolute verity. 1 This effect is due to the 
 fact that the law assumes that it is a special instrument brought 
 under the immediate supervision of the judge, and hence sub- 
 jected to a closer scrutiny than orders or entries made by the 
 clerk, although directed by the judge. The result of this 
 principle is that where the bill recites special matters different 
 from the entries in the order book or other record, it controls 
 and other recitals yield to it. 2 
 
 £ 812. Making Error Apparent — It is not necessary that the 
 prejudicial influence of a wrong ruling should be made to ap- 
 pear by direct recitals or statements, but it is necessary that 
 the statements or the recitals of the bill should be full enough 
 to show the nature and influence of the ruling or decision upon 
 which error is alleged, and so show it as to authorize the infer- 
 ence that the wrong ruling was prejudicial or probably preju- 
 
 of the bill is his own act, and it would Ind. 302; Alley v. State, 76 Ind. 94; 
 
 be a gross breach of duty to deny or Cincinnati, etc., Co. v. McFarland, 22 
 
 impair a party's rights by a refusal to Ind. 459; Carmichael :\ Shiel, 21 Ind. 
 
 grant a bill fully and fairly exhibiting 66; Doe v. Smith, 1 Ind. 451; States, 
 
 the case. Flemons, 6 Ind. 279. In the case last 
 
 1 Walls v. Anderson, etc., Co., 60 named it was said, in speaking of a 
 
 Ind. 56; Beavers v. State, 5S Ind. 530; variance between order book entries 
 
 Thames, etc., Co. v. Beville, 100 Ind. and the bill, that: '"The bill of exn-p- 
 
 309. See, generally, Blizzard v. Bliz- tions will be taken as true, and will cor- 
 
 zard, 4S Ind. =540; Ryan v. Burkam, rect the other portions of the record, 
 
 42 Ind. 507, 524; Jellv ''. Roberts, 50 for the reason that the minutes are 
 
 Ind. 1, S; Longworth v. Higham, 89 kept by the clerk, but the bill of excep- 
 
 [nd. };2. tions brings the facts distinctly to the 
 
 ' Indiana, etc., Co. v. Adams, 112 attention of the judge who signs it."
 
 BILLS OF EXCEPTION 
 
 dicial. Where there is not enough in the bill to justify the in- 
 terence that the ruling or decision complained of was injurious, 
 or probably injurious, error is not made apparent. 1 It is not al- 
 ways necessary to incorporate all the evidence in the bill of 
 exceptions in order to supply grounds for the inference, or 
 presumption, that the wrong ruling was probably harmful, but, 
 as will hereafter be shown, it is frequently necessary to do so. 
 
 § 813. Rulings made in the Formation of Issues— Rulings made 
 in the formation of issues can not be regarded as rulings con- 
 cerning the conduct of the trial. As this is true such rulings 
 can not be considered as included in leave given for time to 
 reduce to writing exceptions taken during the trial, so that ex- 
 ceptions should be taken to such rulings at the time they are 
 made, and at that time leave to put the exceptions in writing 
 should be obtained.- Leave given upon overruling a motion 
 for a new trial can not reach back and take up rulings made in 
 the formation of issues. This doctrine does not trench upon 
 the rule that a bill of exceptions taken under leave granted at 
 the time of overruling a motion for a new trial embraces ex- 
 ceptions taken during the trial, for the reason that a trial may 
 with propriety be regarded as one entire proceeding, 3 whereas 
 
 l InCecconi». Rodden, 147 Mass. 164, Warner, 2 Aik. (Vt.) 26; Knox v. 
 
 16 N. E. Rep. 749, it was said: "Ex- Noble, 25 Kan. 449. 451; Eastman v. 
 
 ceptions to a question to a witness can Godfrey. 15 Kan. 341; Gray v. Thomas, 
 
 not be considered which do not show iS La. Ann. 412. 
 
 how the question was answered, and 2 Smith v. Flack. 95 Ind. 116, 126; 
 
 that the answer was in some way un- Boyce v. Graham, 91 Ind. 420; Thomas 
 
 favorable to the part}' excepting." The v. Griffin, 1 Ind. App. 457, citing Rhine 
 
 cases of Kershaw v. Wright, 115 Mass. v. Morris, 96 [nd. 81; Sohn v. Marion, 
 
 361, and Pennock v. McCormick, 120 etc., 73 Ind. 77; City of Seymour v. 
 
 Mass. 275, were cited. See, also, Tay- Cummins, 119 Ind. 148. See Wabash, 
 
 lor V. Flint, 35 Ga. 124; Ilovt V. Will- etc.. Co. v. People. 106 til. 652; Mullany 
 
 iams, 41 Mo. 270; State v. Cow, in, 7 v. Firsl National Bank, 89 Ind. 424, 425; 
 
 Iredell L. 239; Armstrong v. Clark, 17 Caldwill v. Gilmore, 86 Ind. 428; Strib- 
 
 Ohio, 495; Webster v. Calden, 55 M..-. ling v. Tripp, 86 [nd. 166, 169. 
 
 165; State v. Bennett, 75 Me. 590; Tip- 8 Jenks v. State, 39 Ind. 1. Barnaby 
 
 per v. Commonwealth, 1 Metef. (Ky.) v. State, 106 Ind. 539, 541; Bn 
 
 6; Jones v. Doe, 1 Ind. 109; Holmes State, 87 Ind. 450. In Ryman v. Craw- 
 
 v. Gayle, 1 Ala. 517; McDougal v. ford, 86 Ind. 262, the difference between 
 
 Fleming, 4 Ohio. 388; Richardson v. the two classes of eases is shown. 
 Denison, 1 Aik. (Vt.) 210; Stearns v.
 
 66 
 
 ERROR IX JUDICIAL PRO< I I DINGS. 
 
 the formation of the issues is not part of the trial in any just 
 sense. 
 
 § 814. Collateral Motions — Collateral motions, such as motions 
 to make more specific, to separate, and the like, must be brought 
 into the record by a bill of exceptions, or by a special order of 
 the court making them a part of the record. 1 To this class of 
 motions belong motions to dismiss. 2 It is necessary that the 
 grounds of such motions and the specific relief pra} r ed should 
 be appropriately specified inasmuch as there is no other mode 
 of bringing such matters into the record, and without them, as 
 we have repeatedly said, no rulings are properly presented for 
 review. 3 
 
 § 815. Recitals in Direct Motions — Recitals of facts in direct 
 motions or appendant exhibits do not go into the record as 
 part of the motion. Such recitals and exhibits can only be 
 
 1 McDonald v. Geisendorff, 128 Ind. 
 153; Thomas :•. Griffin, 1 Ind. App.457; 
 Balue v. Richardson, 124 Ind. 4S0; 
 Boj'ce v. Graham, 91 Ind. 420; Man- 
 hattan Life Ins. Co. v. Doll, 80 Ind. 
 113; State v. King, S2 Ind. 58; Rhine 
 v. Morris, 96 Ind. Si; Stanton v. State, 
 71 Ind. 503; Nichols :■. State, 65 Ind. 
 512; School Town of Princeton :•. Geb- 
 hart, 6] Ind. [87; Myers v. Conway, 62 
 Ind. 474; Greensburgh, etc., Co. v. Sid- 
 ener, 40 Ind. 424; Wilson :■. Piper, 77 
 Ind. 437; Mcllvain v. Emery, SS Ind. 
 Ifelter v. Hulett, 92 Ind. 426; 
 Lynch v. Jennings, 43 Ind. 276. 
 
 '-' Sites v. Miller, 120 Ind. 19; Board 
 :■. Small, 61 Ind. 318; Burntrager V. 
 McDonald, 31 Ind. 277; Washington 
 Ice Co.' v. Lay, 103 Ind. 48; Board 
 :. Montgomery, C09 Ind. 69; Crumley 
 V. Hickman, 92 Ind. 38S; Yost v. Con- 
 roy, 92 Ind. (.64, S. C . |7 Am. Rep. 156; 
 Wilson v. 1'iper, 77 Ind. 437; Long V. 
 Town of Brookston, 79 Ind. 1S3; Hicks 
 : . State. S3 Ind. 4S3; Evans v. Shafer, 
 8N. Ind. 92; Louisville, etc., Co. v. Head, 
 
 80 Ind. 117; Ferrier v. Deutchman, 51 
 Ind. 21; Conoway v. Weaver, 1 Ind. 263; 
 Aspinwall v. Board, iS Ind. 372; Carr 
 v. Thomas, 34 Ind. 292 ; Dritt v. Dodds, 
 35 Ind. 63. 
 
 3 In Walker v. Steele, 121 Ind. 436, 
 43S, the court said: "The grounds of 
 the motion to strike out the disclaimer 
 do not appear in the bill of exceptions 
 or elsewhere in the record, therefore if 
 the motion had been one which the 
 court could have properly entertained 
 we can not say that the court erred in 
 overruling it. If no reasons were as- 
 signed, or if reasons were given, if they 
 were insufficient, then the court com- 
 mitted no error in overruling the mo- 
 tion." It may, without going far out 
 of the direct path, be proper to say that 
 motions to strike out must clearly des- 
 ignate the part to which objection is 
 made, and that this can not be done by 
 referring to pages and lines, for the 
 transcript on appeal ordinarily makes 
 the pages and lines different from what 
 they are in the orignal pleading.
 
 BILLS OF EXCEPTIONS. 
 
 767 
 
 brought into the record by a bill of exceptions. 1 The motion 
 itself may be in the record without a bill and yet its statements 
 of facts or exhibits not be part of the record. Thus, matters 
 of evidence, affidavits, or instructions can not be made pari of 
 the record by embodying them in the motion. 2 The direct 
 motion with its specifications of reasons, causes or objections 
 is, however, part of the record proper. 
 
 § 816. Rejected Pleadings — Pleadings rejected on motion must 
 be brought back into the record by a bill of exceptions. In 
 bringing them back the motion and the ruling must be brought 
 with them. Without the motion and ruling the facts upon 
 which the exceptions are founded can not be regarded as in 
 the record. 3 
 
 § 817. Instruments that may be brought into the Record by a Bill 
 of Exceptions — We have said that all matters not exhibited by 
 the record proper must be brought in by a bill of exceptions, 
 or, in cases within the statute, by a special order of the court, 4 
 
 1 Ante, §§ 190, 191, 194. 
 
 2 In Clouser v. Ruckman, 104 Ind. 
 5SS, the doctrine was thus stated: " Re- 
 citals in a motion for a new trial can 
 not perform the office of a statement 
 required to be incorporated in a bill of 
 exceptions, nor can the recital of the 
 clerk take the place of such a state- 
 ment." Chambers v. Butcher, S2 Ind. 
 50S; Powers v. State, S7 Ind. 144; 
 Compton v. State, 89 Ind. 338; Ilorton 
 v. Wilson, 25 Ind. 316; Marks v. Ja- 
 cobs, 76 Ind. 216; Taylor v. Fletcher, 
 15 Ind. So; Indianapolis, etc., Co. :•. 
 Wvatt, 16 Ind. 204; Round v. State, 14 
 Ind. 493; Thompson v. White, 18 Ind. 
 373; Whiteside V. Adams, 26 Ind. 250; 
 llerringr. State, 1 Iowa. 205; Pharo 
 V. Johnson, 15 Iowa. 560; Hart V. 
 Foley, 67 Iowa, 107; Board v. Mont- 
 gomery, 109 Ind. 69; Holt v. Simons, 
 14 Mo. App. 450; Robinson v. Suter, 
 1^ Mo, App. 599; Kohn v. Lucas, 17 
 Mo. App. 29; Berkley :•. Robes, 13 Mo. 
 
 App. 502; Shaughnessy v. St. Louis, 
 etc., Co., 7 Mo. App. 591 ; Indianapolis, 
 etc., Co. t r . Christian, 93 Ind. 360. 
 
 3 Carrothers v. Carrothers, 107 Ind. 
 530; Scott v. Board, 101 Ind. 42; Stott 
 v. Smith, 70 Ind. 29S; Berlin v. Ogles- 
 bee, 65 Ind. 30S; Ammerman v. Cros- 
 by, 26 Ind. 451; Hill v. Jamieson, 16 
 Ind. 125; Schmidt v. Colley, 29 Ind. 
 120; Stanton v. State, 74 Ind. 503; 
 Ward v. A.ngevine, 40 Ind. 415; Meyer 
 v. Yesser, 32 Ind. 294; Klingensmith v. 
 Reed, 31 Ind. 389; S Smith, 1 ^ 
 
 Ind. 23; Saunders v. Ileatou, 12 Ind. 
 20; Chrisman v. Melne, 6 Ind. .) s 7; 
 Henderson v. Reed, 1 Blackf. 347. 
 
 * Ante, §§ 190, 191, 194. We do not 
 here speak of making pleadings or in- 
 struments pari of the record by a - 
 cial order, nor do we mean to say that 
 some of the instruments mentioned in 
 this paragraph may not be brought up 
 by special order.
 
 7 (jg ERROR IN JUDICIAL PROCEEDINGS. 
 
 and nothing can be added that will more clearly express the 
 rule, but its practical operation and the mode of its application 
 may be shown more clearly by referring to the adjudged cases. 
 Affidavits and applications for a change of venue with the rul- 
 ing and exceptions are properly brought into the record by a 
 bill of exceptions. 1 Affidavits for a continuance may be, and 
 usually are, brought into the record in like manner, 2 and so 
 may affidavits in support of a motion to compel a party to give 
 security for costs. 3 Motions for judgment for costs 4 and motions 
 to tax costs are effectively and appropriately brought into the 
 record by a bill of exceptions. 5 Affidavits in support of motions 
 to amend and all motions of like character a bill of exceptions 
 will effectively bring into the record. 6 A motion to modify a 
 judgment, 7 for judgment on the pleadings' 3 and similar motions 
 may be brought into the record in the same mode, and so may 
 motions to strike out interrogatories.'-' Affidavits in support of 
 a motion for a new trial must be made part of the record by 
 bill, 10 and this is true of all affidavits of the same general class. 
 The cases referred to show that almost all instruments, whether 
 motions or affidavits, which are not part of the pleadings may 
 be brought into the record by a bill of exceptions. The notable 
 exception to the rule that motions must be made part of the 
 
 1 Smiths. Smith. 77 Ind. So; Sidener 6 Swan v. Clark, 8o Ind. 57; Lewis 
 
 v. Davis. 87 Ind. 342; Hoard v. Benson, v. E wing, 70 Ind. 282. 
 
 83 End. 469; Lawless v. Harrington, 75 7 Quill v. Gallivan, 10S Ind. 235; Ex 
 
 Ind. 379; Compton v. State, S9 Ind. farte Hayes, 88 Ind. 1; Adams v. La 
 
 338; Siebert v. State, 95 Ind. 471; Ba- Rose, 75 Ind. 471 ; Pennsylvania Co. v. 
 
 ker v. Simmons, 40 Ind. 442. Niblack, 99 Ind. 149; Forsythe v. 
 
 1 Long v. State. 46 Ind. 5S2; Beard Kreuter, 100 Ind. 27; Whipple v. Shew- 
 
 v. State, 54 Ind. 413; Colle v. State, 75 alter, 91 Ind. 114; Evansville, etc., Co. 
 
 T n d. 511. Frank (Ind. App.) 29 N. E. Rep. 419. 
 
 3 Hadlev v. Hadley, 82 Ind. 95. 8 Hill v. Jamieson, 16 Ind. 125. See, 
 
 * Beard v. Hand, SS Ind. 1S3; Leffel generally, Fairbanks v. Loring (Ind. 
 
 Obenchain, 90 Ind. 50; Nutting v. App.). 29 N. E. Rep. 452. 
 
 Losance, 27 Ind. 37. 9 Borchus v. Huntington, etc., Asso., 
 
 5 Gallimore v. Blankenship, 99 Ind. 97 Ind. 1S0; Stott v. Smith, 70 Ind. 298. 
 390; Jamieson v. Board, 56 Ind. 466; 10 Elbert v. Hoby, 73 Ind. in; Beck 
 Conner r. Winton, 10 Ind. 25; Smaw- v. State, 72 Ind. 250; McDaniel v. Mat- 
 lev v. Stark. 9 Ind. 3S6; Urton v. tingly. 72 Ind. 349; Williams r. Potter, 
 Luckey, 17 Ind. 213; State v. Saxon, 72 Ind. 354; Gandolpho v. State, 33 
 42I1KL4S4; Tilman v. Harter, 38 Ind. 1. Ind. 439.
 
 BILLS OF EXCEPTK >NS. 
 
 769 
 
 record by a bill or special order, is a motion for a new trial, 
 that motion, as we have seen, is a direct motion and, under 
 our decisions, is part of the record proper. 1 
 
 § 818. Making Written Instruments part of the Bill by Refer- 
 ence — General Hule — Under the provisions of the code written 
 instruments offered in evidence may be brought into a bill of 
 exceptions by reference. 2 But the statutory requirements must 
 
 1 As the office of a bill of exceptions 
 is an important one it may not he profit- 
 less to refer to other eases. A bill of ex- 
 ceptions is necessary to show such pro- 
 ceedings and instruments as those below 
 enumerated. Answers of jurors when 
 polled. Medler v. State, 26 Ind. 171. 
 Affidavits in support of a motion and 
 in opposition. Veneman v. McCurtain 
 (Neb.), 50 N. W. Rep. a 955; McCann 
 v. Cooler, 30 Neb. 552, 40 N. W. Rep. 
 715; Whiteside v. Adams, 26 Ind. 250; 
 Murphy v. Tilly, 11 Ind. 511; Kennedy 
 v. State, 37 Ind. 355; Whaley v. Gleason, 
 40 Ind. 405; Kellenberger v. Perrin, 46 
 Ind. 2S2; Bingham v. Stumph, 4S Ind. 
 97; Round v. State, 14 Ind. 493; Tay- 
 lor v. Fletcher, 15 Ind. So, Bell v. 
 Rinker, 29 Ind. 267; Blizzard v. Phe- 
 bus, 35 Ind. 2S4; Turnbull v. Ellis, 35 
 Ind. 422; Cleland v. Walbridge, 7S Cal. 
 35S, 20 Pac. Rep. 730; Olds Wagon Co. 
 7. Benedict, 25 Neb. 372,41 N.W. Rep. 
 254. Depositions and motions. Rob- 
 erts v. Parrish, 17 Ore. 5S3, 22 Pac. Rep. 
 136; Mills v. Simmonds, 10 Ind. 464; 
 Trout V.. Small, 10 Ind. 3S0; Harvey V. 
 Sinker, 35 Ind. 341; Smith v. Kylcr. 74 
 Ind. 575; Mendenhall v. Treadway, 44 
 Ind. 131; Gardner v. Haynie, 42 111. 
 291; Pittsburgh, etc., Co. v. Probst, 30 
 Ohio St. 104; Davidson v. Peck, 4 Mo. 
 438. Rules of the trial court. Packet 
 Co. v. Sickles, 19 Wall. On; Rout v. 
 Ninde, 11 1 Ind. 597. Agreed statement 
 of facts. Acheson v. Sutliff, iS Ohio, 
 122; Citizens, etc., Co. v. Harris, 10S 
 Ind. 392. Motions to transfer causes 
 from one court to another. Merchants, 
 
 49 
 
 etc., Co. "■. Joesting, 89 111. 152; Cairo, 
 etc.,Co. v. Easterly, 89 111. 156. Grounds 
 
 of objection that a cause was called 
 for trial out of its order. Lomax v. 
 Mitchell, 93 111. 579. Vacating an order 
 granting a new trial. Davis v. Binford, 
 58 Ind. 457. Motion to compel an at- 
 torney to show authority tor entering 
 an appearance. Murphy v. Tilly, 11 
 Ind. 511. Motion to strike from the 
 docket. Carr v. Thomas, 34 Ind. 292. 
 A summons and the return in a case 
 where all the parties appear. 
 
 Instructions may be made part of the 
 record by a bill of exceptions, but, as 
 we have elsewhere shown, that is not 
 the only mode of bringing them into 
 the record. Landers v. Beck, 92 Ind. 
 49,52; Plank v. Jackson, 128 Ind. 424. 
 430. It is probably true that some ot 
 the instruments above enumerated may 
 be made part of the record by a special 
 order of court, but as it is difficult to 
 determine the scope and effect of the 
 statutory provision concerning such 
 special orders, the safe course is to em- 
 ploy the bill of exceptions. 
 
 2 Clay v. Clark 76 Ind. 161; 
 ton v. Kennard, 74 Ind. 302; Stal 
 President, etc., 44 Ind. 350; Ktssler v. 
 Myers, 41 Ind. 543; Harman v. State, 
 21 Ind. 331; Burdick v. Hunt, 43 Ind. 
 3S1; Aurora, etc., Co. v. Johnson. 46 
 Ind. 315. Sidener y. Davis, 69 [nd. 
 Goodwine :•. Crane. 41 Ind. 335; Endsley 
 
 State, 76 Ind. 467, 469; Sandei 
 Ferrell, 83 Ind. 2^; Cosgrove v. ( 
 bj . s '' Ind. 511.
 
 70 
 
 ERROR IN U'DIL'IAL PROCEEDINGS. 
 
 be strictly followed. The instrument must be so clearly identi- 
 fied that nothing remains for the clerk to do but copy it into 
 the bill at the place indicated. 1 The place for the insertion of 
 the instrument should be indicated by the words " here insert." 
 Instruments can not be brought into the bill by referring to 
 them as exhibits, 2 nor, indeed, in any other mode than by des- 
 ignating the place for their insertion and their insertion in the 
 place designated, or by copying them into the bill before it is 
 signed, except as indicated in the next paragraph. 
 
 § 819. Instruments once properly in the Record need not be 
 Copied in the Bill — An exception to the general rule stated in 
 the preceding paragraph is this : Where an instrument is once 
 rightfully in the record proper, it need not be copied into the 
 bill of exceptions, but may be referred to at the appropriate 
 place without copying. 3 But it is to be remembered that an 
 instrument not part of the record proper can not be thus 
 
 1 Seymour, etc., Co. v. Brodhecker 
 
 (Ind.), 30 N. E. Rep. , Feb. 26, 1892; 
 
 Wagar v. Peak, 22 Mich. 368; Hum- 
 phrey v. Ball, 4 Greene (Iowa), 204; 
 Sands v. Woods, 1 Iowa, 263; Bryan v. 
 State, 4 Iowa, 349; Smith v. Taylor, 11 
 Iowa, 214. In Harmon v. Chandler, 3 
 Iowa, 150, 152, the court said: " In or- 
 der to bring before this court as a part 
 of the record any paper used or pro- 
 ceeding had in the district court not 
 made part of the record, it must be em- 
 bodied in the bill of exceptions, or so 
 plainly identified that there can not 
 possiblv be any mistake as to what is 
 referred to. To refer to a motion or 
 instruction " as marked and here insert 
 it, is not sufficiently certain for the ends 
 of justice, and this court has heretofore 
 expressed its decided condemnation of 
 such a practice." Reed v. Hubbard, 1 
 (1. Greene, 153; Atchison, etc., Co. v. 
 Wagner. 19 Kan. 335: Leftwich V. 
 Leftwich, 4 Wall. 187; Hill v. Hollo- 
 way, 52 Iowa, 678; Wells v. Burlington, 
 
 etc., Co., 56 Iowa, 520; Looney v. Bush, 
 Minor (Ala.), 413; Tuskaloosa Co. v. 
 Logan, 50 Ala. 503; Lesser v. Banks, 46 
 Ark. 482. See, generally, Morrison v. 
 Lehew, 17 Mo. App. 633; St. Louis 
 etc., Co. v. Godly, 45 Ark. 4S5; Ober v. 
 Indianapolis, etc., Co., 13 Mo. App. Si. 
 
 2 Irwin v. Smith, 72 Ind. 4S2; Burdick 
 v. Hunt, 43 Ind. 3S1; Cincinnati, etc., 
 Co. v. Clifford, 113 Ind. 460; Baltimore, 
 etc., Co. v. Barnum, 79 Ind. 391; Hur- 
 sen v. Lehman, 35 111. App. 4S9; Chi- 
 cago, etc., Co. v. Harper, 12S 111. 3S4; 
 Sidener v. Davis, 69 Ind. 336; Branch 
 Bank, etc., v. Moseley, 19 Ala. 222. 
 
 3 Kessler v. Myers, 41 Ind. 543; Smith 
 v. Lisher, 23 Ind. 500; Stewart v. Ran- 
 kin, 39 Ind. 161; McFadden v. Wilson, 
 96 Ind. 253, 255; Colee v. State, 75 Ind. 
 511, 513; Henry v. Thomas, 11S Ind. 
 25, 20 N. E. Rep. 519. The proper ref- 
 erence must be made. Sanders v. Far- 
 rell, 83 Ind. 2S; Blizzard v. Riley, S3 
 Ind. 300.
 
 BILLS OF EXCEPTII >NS. 771 
 
 brought into the bill of exceptions. 1 As an example of an in- 
 strument not part of the record proper we may take an affidavit 
 attached to a motion for a new trial, and as an example of 
 what is part of the record proper we may take a promissory 
 note upon which a complaint is founded and which is filed as a 
 part of the pleading. An instrument not part of the record can 
 not be brought into the bill by any reference or recital of the 
 clerk. 2 
 
 § 820. 0r t ll Evidence — Oral evidence must be embodied in 
 the bill of exceptions before it is signed by the judge. It can 
 not be brought into the record, in an ordinary case, in any 
 other mode. It can not be stated in exhibits nor by way of 
 reference. 3 
 
 § 821. Stenographer's Report of the Evidence — The principle 
 that the settling of a bill of exceptions is a judicial duty forbids 
 the conclusion that the stenographer's report of the evidence can 
 become a part of the bill in any other mode than by incorporation. 
 The long-hand report need not be copied by the clerk, but it 
 must get into the bill by the act of the judge and it can not get 
 there in any other way. 4 It must appear in a bill signed by 
 the judge. 5 Where the long-hand report is incorporated in the 
 
 1 Douglass r. State, 72 Ind. 3S5; Colee * Stone v. Brown. 116 Ind. 7S; Colt 
 
 v. State, 75 Ind. 511; Carver v. Carver, v. McConnell, 116 Ind. 249; Dick v. 
 
 44 Ind. 265; Kimball v. Loomis, 62 Mullins, 12S Ind. 365; Clark v. S 
 
 Ind. 201; Aurora, etc., Co. v. Johnson, 125 Ind. 1; Fiscus v. Turner, 125 Ind. 
 
 46 Ind. 315; Board v. Karp, 90 Ind. 46; Ohio, etc., Co. v. Voight, 122 Ind. 
 
 236; Crumley v. Hickman, 92 Ind. 388. 2SS; Doyal v. Landes, 119 Ind. 479; 
 
 i Garber v. Morrison, 5 Iowa, 476; Patterson v. Churchman, 122 Ind. 
 
 Jordan v. Quick, 11 Iowa, 9; State v. Stevens v. Stevens, 127 Ind. 560; But- 
 
 Jones, 11 Iowa, 11; H addon v. lladdon, ler v. Roberts, 11S Ind. 481; Fahlor v. 
 
 42 Ind. 37S; Aurora, etc., Co. v. John- State, 10S Ind. 387; Brehm : . State, 90 
 
 son, 46 Ind. 315. Ind. 140; Weir Plow Co. v. Walmsley, 
 
 3 Harrell v. Seal, 121 Ind. 193; Strat- no Ind. 242; Marshall v. State. 107 
 
 ton v. Kennard, 74 Ind. 302; Kesler v. Ind. 173; Woollen v. Wishmier, 70 End. 
 
 Myers, 41 Ind. 543; Stewart v. Rankin, 10S; Lowery :•. Carver, 104 Ind. 417; 
 
 39 Ind. 161; Cincinnati, etc., Co. f.Cal- Flint V. Burnell, Il6 Ind. 4S1. 
 
 vert, 13 Ind. 4S9; Irwin :\ Smith, 72 5 Louisville, etc., Co. V. Kane, 120 
 
 Ind. 482, 488, and cases cited; State :■. Ind. 140. 
 Hemrick, 62 la. 414; Shugart v. Miles, 
 125 Ind. 445.
 
 "7" 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 hill of exceptions signed by the judge it is properly in the rec- 
 ord. The fact that the evidence was taken down and certified 
 by the stenographer does not affect the question, for if the 
 judge incorporates the evidence in a bill he adopts the report 
 and thereby makes its statements and recitals his own. 1 
 
 ; 822. Making the Stenographer's Report part of the Bill— The 
 
 mode of making the stenographer's long-hand report a part of 
 the bill of exceptions is by incorporating it in the form of a 
 bill and procuring the signature of the judge. Counsel can 
 readily do this by preparing the formal caption and introduc- 
 tory recital of a bill, prefixing it to the report and writing at 
 the end of* the report the clause necessary to show that all the 
 evidence is set forth and, also, the appropriate conclusion. 
 When this is done and the judge affixes his signature the bill is 
 complete and effective. 2 It has been held that when the long- 
 hand manuscript is incorporated into a bill of exceptions it 
 need not be copied by the clerk but the original may be taken 
 from the hill and certified up. 3 We can see no reason why the 
 
 1 MrCormick, etc., Co. v. Gray, 114 
 Ind. 340, modifying Lyon v. Davis, 111 
 Ind. 384; L'llommedieu, etc., Co. v. 
 Cincinnati, etc., Co., 120 Ind. 435, 436. 
 
 2 In Wagoner v. Wilson, 10S Ind. 
 2 ki. 215. it was said: " All that is nec- 
 essary in order to prepare a bill of ex- 
 ceptions • which shall incorporate the 
 Ion- hand manuscript is to prepare the 
 usual formula for the beginning of an 
 ordinary bill of exceptions with a recital 
 thai the following oral evidence was 
 delivered, and the rulings of the court 
 with respect to the admission and re- 
 jection of evidence, and the objections 
 thereto, were made and taken as noted, 
 and thai a verbatim report of such evi- 
 
 -, and the rulings, objections and 
 ptions thereon and thereto was 
 made by an official reporter, naming him, 
 of which rulings, objections and excep- 
 tions so made and taken, the following 
 i mi- original long-hand manuscript as 
 the same was made and filed. Some- 
 
 thing similar to the foregoing, attached 
 as a preface to the long-hand manu- 
 script, with the usual formal ending of 
 a hill of exceptions, not omitting at the 
 appropriate place the usual statement 
 that 'this was all the evidence given in 
 said cause,' incorporates the manuscript 
 into a bill ready for presentation to the 
 judge for examination and signature." 
 3 In Hull v. Louth, 109 Ind. 315, 3S7, 
 the court said: " But, in our judgment, 
 if the long-hand manuscript is filed 
 with, and as part of the bill of excep- 
 tions, that is sufficient, and when thus 
 filed it may be taken from the bill of 
 exceptions and be made part of the rec- 
 ord on appeal to this court without be- 
 ing copied." As indicated in the text 
 we can see neither propriety nor utility 
 in severing the report from the state- 
 ments and recitals that give it effect, 
 ami we think that the better practice is 
 to certify up the original bill as an en- 
 tirety.
 
 BILLS OF EX( I P riONS. 77;; 
 
 original bill may not be certified up without extracting from it 
 the long-hand manuscript. There is certainly no necessity for 
 detaching the manuscript from the other parts of the bill and 
 no good is accomplished by doing so. 1 We are, of course, 
 speaking only of bills containing the evidence, for the doctrine 
 declared by the decided cases does not extend to bills bringing 
 motions made during the formation of issues, or the like, into 
 the record. When the report of the stenographer is proprrly 
 incorporated in the bill of exceptions its statements of objec- 
 tions, exceptions and rulings on the admission and exclusion 
 of evidence are part of the record. 
 
 § 823. The Rule where all the Evidence must be in the Record — 
 
 In many cases the errors sought to be made available can not be 
 regarded unless the whole evidence is in the record by a bill of 
 exceptions. 2 We are not speaking of special cases as " reserved 
 questions of law," or the like, but of cases appealed in the or- 
 dinary mode. We do not say that the entire evidence is al- 
 ways necessary even in cases appealed in the usual mode, for 
 there are cases where it is not necessary that the entire evi- 
 dence should be brought in by a bill of exceptions, 3 but we do 
 say that where the whole evidence is required, as it is in most 
 cases, it must be brought into the record. Where the entire 
 evidence must be in the record there must be a clear affirmative 
 
 1 Since the text was written it has trode, 87 Ind. 379; Conden .1;. Morning- 
 been expressly decided that the original star. < ( _j Ind. 150; Hedrick V. P. M I '- 
 bill containing the report of the evi- borne .V Co., 1)9 Ind. 143; Pedigo 1 
 dence may be certified up without copy- Grimes, 113 Ind. [48; Instate of Wells 
 ing. McCoy v. Able (Ind.), 30 N. E. v. Wells, 71 Ind. 509; Douns v. Opp, 
 
 Rep. . The case referred to fully 82 Ind. 166. It is true, as a general 
 
 considers the subject of making the re- rule, that questions arising on amotion 
 
 porter's notes part ot" the record for a new trial require that all the evi- 
 
 2 Fellenzer v. Van Valzah, 95 Ind. dence should he brought into the rec- 
 128; Ohio, etc., Co v. Nickless, 73 Ind. ord. School Town of Princeton v. 
 3S2; Miller v. Voss, |.o Ind. 307; Lur- Gebhart, 6i Ind. 187; Smith v £ 
 ton v. Carson, 2 Blackf. (.64; Bates v. ford, 62 Ind. $92; Walser 0. Kerrigan, 
 Bulkley, 7 111. 3S9; Hall v. Reed. 17 56 Ind. 301. But the rule, although not 
 Ohio. 49S. subject to very many exceptions, i^. 
 
 s Wiley v. lohnson, ~\ Ind. ; 53; Suth- nevertheless, subject to some important 
 erland v. Hankins, 56 Ind 543; Shorf ones. 
 :•. Kinzie. So Ind. 500; Pavey v. Win-
 
 771 ERROR [N JUDICIAL PROCEEDINGS. 
 
 showing of that fact. The usual formula in this jurisdiction is: 
 ••And this was all the evidence given in the cause, 1 ' but it has 
 been held that words of equivalent meaning are sufficient, 1 al- 
 though it has also been held that it is not sufficient to use tin- 
 term " offered " 2 in place of the term "given," or the word 
 " testimony " 3 in place of the word " evidence." It has been 
 said, we may incidentally remark, that the adherence to a rigid 
 rule is unwise because too technical, but this is only a partial 
 view of the question. One great virtue of a rule is to secure 
 certainty and to prevent a consumption of the time of the court 
 in determining whether the evidence is or is not in the record. 
 It is no great hardship to require parties to obey a settled rule, 
 but there is hardship and uncertainty in a practice that leaves 
 each case to be determined as a single and isolated instance. 
 
 § 824. The General Recital not always Controlling — The gen- 
 eral statement that " this was all the evidence Jjiven in the 
 cause," effective as it is, does not always control. If the bill 
 shows that it does not contain all the evidence, the recital 
 will be unavailing. 4 But it is effective and controlling 
 
 1 Bcattv v. O'Conner, 106 Ind. Si; conflict in our decisions. The word 
 
 Brock v. State, 85 Ind. 397. " introduced " has been held equivalent 
 
 ' Goodwine v. Crane, 41 Ind. 335; to the word "given." Jones v. Lay- 
 Peck t. Louisville, etc., Co., 101 Ind. man, 123 Ind. 569, 24 N. E. Rep. 3(13; 
 366; American Ins. Co. v. Gallahan, 75 Kennedy v. Divine, 77 Ind. 490; Stair 
 Ind. 168; Woollen v. Wishmier, 70 Ind. t>. Richardson, 10S Ind. 429; Brock v. 
 108; Lyon v- Davis, m Ind. 3S4. State, 85 Ind. 397. 
 
 3 Central Union, etc., Co. v. State, 4 Oberfelder v. Kavanaugh, 29 Neb. 
 no Ind. 203, 207; Gazette, etc., Co. v. 427, 45 N.W. Rep. 471; Missouri Pacific 
 Morss, 60 Ind. 153; McDonald v. Klfes, Ry. Co. v. Hays, 15 Neb. 224, 18 N. W. 
 61 Ind. 279; Sassengut v. Posey, 67 Ind. Rep. 51; Taylor v. Davis (Tex.), 13 S. 
 40S; Brickley v. Weghorn, 71 Ind. 497; W. Rep. 642; Jennings v. Durham, 101 
 Kleyla v. State, 112 Ind. 146; Long- Ind. 391; Stout -•. Turner, 102 Ind. 
 worth v. Higham, 89 Ind. 352; Ingel v. 418; Louisville, etc., Co. v. Grantham, 
 Scott, 86 Ind. 518; Baltimore, etc., Co. 104 Ind. 353; Reineke v. Wurgler, 77 
 v. Barnum, 79 Ind. 261; Garrison v. Ind. 468; Collins v. Collins, 100 Ind. 
 . no Ind. 145; Bender v. Wamp- 266; Fasnachl v. German, etc., Asso- 
 ler. 84 Ind. 172; Barley v. Dunn, 85 ciation, 99 Ind. 133; Lee :\ State, 8S Ind. 
 Ind. 338. The older cases, which re- 256; French v. State, Si Ind. 151 ; Pavey 
 quired a rigid adherence to the accept- v. Wintrode, 87 Ind. 379; Eigenman v. 
 1 inula, were based upon a rule of Rockport, etc., Association, 79 Ind. 41; 
 court which is not now in force. This Huston :•. MeCloskey, 76 Ind. 38; Shi- 
 will in part account for the apparent mer -•. Butler University, 87 Ind. 21S;
 
 BILL i I >F EXCEPTIONS. 775 
 
 unless the bill itself reveals the fact that some evidence is 
 omitted. 1 
 
 § 825. Amendment of Bills of Exceptions — It is quite well 
 tied that amendments and corrections maybe made in a bill of 
 exceptions by order of the trial court, 2 but amendments and 
 corrections are allowed only in clear cases. It is obvious that 
 where so much depends upon the memory of the judge by 
 whom the cause was tried, the courts should proceed with care 
 and caution. 3 Promptness is exacted, and rightly exacted, of 
 parties who ask that a bill of exceptions be altered or amended. 
 
 § 826. Application for the Order to Amend — The rule respect- 
 ing the amendment or correction of bills of exceptions, so far 
 as concerns matters of procedure, is much the same as that 
 which prevails in other cases where the amendment or correc- 
 tion of a record is sought, but, as said in the preceding para- 
 graph, the courts are rather more cautious and careful in or- 
 dering amendments of bills of exceptions than they are in or- 
 dering the correction of other parts of the record. We have 
 considered the general subject at another place, and it is un- 
 necessary to again discuss it. 4 All that we deem it necessary 
 to say here is that notice of an application, when made after 
 the close of the term, must be given, and that while parol evi- 
 dence is admissible to aid in determining whether an amend- 
 ment is proper, an amendment can not, as a general rule, be 
 made upon parol evidence alone. 5 
 
 Hockettt/.Johnson,87lnd. 251; Ward v. ins v. Bradley, 3 Bibb. (Kv.), 192; Mar- 
 
 Bateman, 34lnd. no; Morrow v. State, ley v. Hornaday, 69 Ind. 106; Hannah 
 
 48 Ind. 432; Powers v. Evans, 7: Ind. v. Dorrell, 73I1KI.465; Morgans. Hays, 
 
 23; Thames, etc., Co. t'.Beville, 100 Ind 91 Ind. 132. 
 
 309; Lyon v. Davis, m Ind. 384; State 3 Roblin v. Yaggy, 35 111. App. 537. 
 v. Marsh,iig Ind. 394; Lawrenceburgh, * Ante, §§ 212, 213. 214, 219. See, 
 
 etc., Co. 7'. Hinkle, 119 Ind. 47: Saxson also, Harris v. Tomlinson, supra, and 
 
 v. State, 116 Ind. 6. authorities cited; St. Louis, etc., Co. r . 
 
 1 Vermillion v. Nelson, 87 Ind. 194. Godby, 45 Ark. 485,491; Seii; v. Long, 
 
 2 Ante, § 209, p. 17S. note 2. Harris 72 Ind. iS; Hamilton v. Burch, 28 Ind. 
 v. Tomlinson (Ind.), 30 N. E. Rep. — ; 233. 
 
 Lefferts v. State, 49 N.J. L. 26; 6 A 1 1 . 5 Where the application is madedur- 
 
 Rep. 521 ; Martin v. St. Louis, etc., Co., ing the term the rule is somewhat differ- 
 
 53 Ark. 250, 13 S.W. Rep. 765; People ent. See, Longworth v. Higham, 89 
 
 z>. Teague, 106 N. C. 571; Runnells v. End. 352; Beavers v. State, 58 Ind 
 
 Moffat, 73 Mich. 188; Morse v. Wood- Jeffersonville, etc., Co. v. Bowen, 49 
 
 worth (Mass.), 27 N.E. Rep. 1010; Giv- Ind. 154.
 
 CHAPTER XIV. 
 
 PRESENTING AN OPPORTUNITY FOR REVIEW. 
 
 $ 827. 
 
 The theoretical doctrine. 
 
 § S45 
 
 S2S. 
 
 The practical doctrine. 
 
 
 S29. 
 
 The mode of presenting ques- 
 tions for review. 
 
 S46 
 
 S30. 
 
 The office of a motion for a new 
 trial. 
 
 
 831. 
 
 The office of the motion on ap- 
 peal. 
 
 847 
 
 832. 
 
 The motion can not precede the 
 
 
 
 decision. 
 
 S4S 
 
 833- 
 
 The motion not cut off by entry 
 
 
 
 of judgment. 
 
 S49. 
 
 834- 
 
 Motion in arrest of judgment 
 
 
 
 cuts off a motion for a new 
 
 Sqo. 
 
 
 trial. 
 
 851. 
 
 S35. 
 
 All causes must be embraced in 
 
 
 
 one motion. 
 
 S:;2 
 
 836. 
 
 Successive motions. 
 
 853 
 
 837- 
 
 Exceptions to the rule forbidding 
 
 
 
 successive motions. 
 
 854- 
 
 838. 
 
 Different classes of motions. 
 
 
 839- 
 
 Joint motions. 
 
 
 840. 
 
 Requisites of the motion — Gen- 
 erally. 
 
 855- 
 
 841. 
 
 Time of filing. 
 
 856. 
 
 S42. 
 
 Where filed. 
 
 
 S43- 
 
 The motion ordinarily goes to 
 
 
 
 the whole case. 
 
 857. 
 
 S44. 
 
 Exceptions to the general rule. 
 
 858. 
 
 The motion should be complete 
 
 in itself. 
 
 Rulings on the pleadings and 
 objections to the form of the 
 judgment not assignable as 
 causes for a new trial. 
 
 Inconsistency bet ween the an- 
 swers of the jury to interroga- 
 tories and the general verdict. 
 
 Irregularity in the proceedings 
 of the court. 
 
 Irregularity of the jury or pre- 
 vailing party. 
 
 Abuse of discretion. 
 
 Misconduct of the jury or pre- 
 vailing party. 
 
 Accident or surprise. 
 
 Errors of law occurring on the 
 trial. 
 
 Verdict or finding contrary to 
 law or not sustained by suffi- 
 cient evidence. 
 
 D a m a ge s — Questioning the 
 amount of recovery. 
 
 Damages in actions in tort and 
 damages in actions on con- 
 tract. 
 
 Newly discovered evidence. 
 
 Counter- affidavits. 
 
 Verification of the motion. 
 
 § 827. The Theoretical Doctrine — In theory all rulings must be 
 presented to the trial court for review or they will not be avail- 
 able as error on appeal, although wrong. This doctrine is 
 hardly correct in fact. A ruling on demurrer, or the like, is 
 not, in fact, ever brought before the trial court for review. 
 The earlier cases asserted that an exception gave the court an 
 
 (776)
 
 OPPORTUNITY FOR REVIEW. 777 
 
 opportunity for review, 1 but this is rather a fancied office of an 
 exception than an actual one. The exception follows the rul- 
 ing so quickly that it is not easy to conceive how it can afford 
 an opportunity to the court of original jurisdiction for review- 
 ing the ruling. 
 
 § 828. The Practical Doctrine — The practical doctrine is that 
 rulings connected with the trial or made during its progress 
 must b^ brought before the trial court for review. 2 The rule is 
 settled and is easily understood. The difficulty is in deter- 
 mining what rulings are so connected with, or related to, the 
 trial as to make it necessary to bring them before the court for 
 review. 
 
 § 829. The Mode of Presenting Questions for Review — We re- 
 gard it ?s the office of an exception to give notice that a party 
 intends to stand bv his objection and make it available, 3 and as 
 this is its office, or, at all events, its chief purpose, it must pre- 
 cede the motion which brings up the ruling in order to have it 
 reviewed. The motion which presents the rulings for review 
 is ineffective, unless proper exceptions have been reserved. The 
 
 1 In Stump v, Frarley, 7 Ind. 679, it 675, S. C. 74 Am. Dec. 233. and note; 
 was said: "One important office of an Lichty V. Clark. 10 Neb. 472. The 
 exception is to direct the attention of failure to make the proper motion for 
 the court particularly to the objection a new trial is a waiver of exceptions. 
 and the grounds of it, so that if errone- In Nave v. Nave, 12 Ind. 1, it was said: 
 ous it maybe reexamined and cor- w And it would seem to have been the 
 reeled." Leyner v. State, S Ind. 490; intent of the legislature in enacting the 
 Jolly v. Terre Haute, etc., Co., 9 Ind. new code, that points of law raised dur- 
 417. ing the trial should In- treated a- waived 
 
 2 Danks v. Rodeheaver, 26 W. Va. unless they were again brought under 
 274; State v. Phares, 24 W. Va. 657; review before the court below, upon a 
 Johnson v. State, 43 Ark. 391 ; Garver specification in writing, on a mo 
 
 v. Daubenspeck, 22 Ind. 238; Lures v. for a new trial." It was also said: 
 
 Botte, 26 Ind. 343; Taylor v. Shelkett, "The rule would be a reasonable one. 
 
 66 Ind. 297; Hyatt v. Clements, 65 Ind. that the court below should have an 
 
 12; Starner v. State, 6 1 Ind. 360; Chap- opportunity after the hurry of trial was 
 
 lin v. Sullivan, 128 Ind. 50; Louisville, over, to hear full argument and consult 
 
 etc., Co. v. Hart, 119 Ind. 273; Mar- with authorities upon points ruled dur- 
 
 shall v. Lewark, 1 17 Ind. 377; Racer v. ing its progress, and to correct am error 
 
 Baker. 1 1 5 Ind. 177: Rousseau v. Corey, it might conclude it had committed." 
 62 Ind. 250; Kent v. l..iw~in. 12 Ind. 3 Ante,
 
 778 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ruling on the motion requires an exception, 1 so that where there 
 is a reviewing motion there is a double exception. The motion 
 for a new trial is the one which in the great majority of cases 
 presents the opportunity for review, and it is of that motion 
 that we shall speak. 
 
 § 830. The Office of a Motion for a New Trial — It is said in some 
 of the cases that the objections made during the progress of a 
 trial must be repeated in the motion for a new trial, but this we 
 think is hardly accurate, insomuch as objections once well and 
 seasonably stated need not be repeated. But while it is not, as 
 we believe, the office of a motion for a new trial to repeat ob- 
 jections, it is its office to bring before the court of original 
 jurisdiction its rulings in order that it may review them, and, 
 if need be, correct errors into which it may have fallen. If it 
 should be held to be the office of a motion for a new trial to re- 
 peat objections, then it would necessarily result that objections 
 must be restated, not simply referred to and specified, but we 
 are not aware of any case in which such strictness in the specifi- 
 cations of the motion is required. The motion is, we think, the 
 vehicle by which rulings concerning the trial or rulings forming 
 part of the trial procedure are conveyed to the attention of the 
 court after a finding or verdict. While it is true, as a general 
 rule, that the office of a motion for a new trial is to present rul- 
 ings for review, it is, nevertheless, true that it does present for 
 original consideration by the court the correctness of the find- 
 ing of the jury upon the issues of fact in a case where the as- 
 sault is upon the verdict for the reason that it is contrary to 
 the evidence or is not supported by the evidence. It is also 
 true that in some other instances it presents an original question 
 as. for instance, the misconduct of jurors, but its principal 
 function is to bring forward rulings for review. 
 
 § 831. The Office of the Motion on Appeal — The principal office 
 of the motion on appeal is to present for the consideration of 
 the appellate tribunal the same questions presented to the court 
 of original jurisdiction, and in order to do this it must specify 
 
 • l Ante, § 794.
 
 OPPORT1 M l \ FOR REVIEW. 77!) 
 
 with reasonable certainty the rulings which the party seek 
 to make available for the reversal of the judgment. The mo- 
 tion is the basis of the specification in the assignmenl <>f errors 
 relating to trial procedure, and, as we have seen, 1 no ruling 
 that is properly embraced in the motion for a new trial can be 
 independently specified as error. The proper specification of 
 error is the ruling on the motion itself and not the causes or 
 reasons properly forming- part of the motion, so that it is ne< 
 sary that all rulings connected with the trial should be specified 
 in the motion. 2 
 
 § 832. The Motion can not Precede the Decision — Until there is 
 an authoritative decision or finding, the motion can not be 
 properly filed. Thus, in a case where the court in a suit in 
 equity submits particular questions of fact to a jury, the motion 
 filed before the court acts upon the answers or verdict of the 
 jury will be ineffective. 3 A verdict, or a finding, in an action 
 at law may be followed by a motion for a new trial, and so 
 may the finding of the court in a suit in equity, for it is proper 
 to file the motion upon the return of the verdict or the announce- 
 ment of the finding of the court. 
 
 § 833. Motion not Cut off by Entry of Judgment — A motion for a 
 new trial is not cut off by the entry of judgment. It may be 
 filed after the judgment is entered. 4 The entrv of judgment is 
 not, however, a final disposition of the case in such a sense as 
 to start the time for appealing to running from the date of entrv, 
 as the time for appealing does not begin to run until the motion 
 is disposed of by final action. 5 
 
 § 834. Motion in Arrest of Judgment Cuts off a Motion for New 
 Trial — It is a settled general rule that a motion in arrest of judg- 
 
 1 Ante, §§ 347, 34S. In many casesit Pence v. Garrison, 93 Ind. 345; Duffv. 
 
 is adjudged that reasons not stated in Dull'. 71 Cal. ^i}. 
 
 the motion will not be considered on * Cox v. Baker, 113 Iml. 62; Beals r\ 
 
 appeal. Kernodle v. Gibson, ii| Ind. Beals, 20 Ind. 163; Hinklev. Margerum, 
 
 451. 5O I lid. 2 \0. 
 
 '-' Ante, s s 351. 5 NV« York, etc., Ry. Co v. Doane, 
 
 3 Ikerd :■. Heavers, 106 Ind. [£3, (.92; 10; Ind 92; Sinclair r. Washingl 
 
 etc., Co., 1 MacArthur D. C), 13.
 
 780 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ment cuts off a motion for a new trial. 1 But it is only a motion 
 in arrest proper that has this effect. A motion for judgment 
 upon the answers of the jury to interrogatories does not pre- 
 clude a party from moving for a new trial. 2 
 
 § 835. All Causes must be Embraced in One Motion— In strictness 
 all the reasons for a new trial must be embodied in one motion. 3 
 A party can not, as a matter of right, file separate motions con- 
 taining different reasons. The court may, in the exercise of a 
 reasonable discretion, permit amended or supplemental motions 
 to be filed, but a party can not, as of strict right, file more than 
 one motion. 
 
 > 
 
 § 836. Successive Motions — The rule is that motions for a new 
 trial can not be repeated, for one motion must present all the 
 rulings which the party desires reviewed, but the rule is not 
 without exceptions. A decision upon a motion is ordinarily a 
 conclusive adjudication. As such a decision is an adjudication 
 of a conclusive character it necessarily results that the party is, 
 as a general rule, precluded from repeating his motion. 4 
 
 § 837. Exceptions to the Rule forbidding Successive Motions— It 
 
 is manifest, as already indicated, that there are exceptions to 
 the general rule prohibiting the filing of a second or subsequent 
 motion. A party may not be aware of the cause entitling him 
 to a new trial, and if his ignorance is not attributable to any 
 
 'Cincinnati, etc.. Co. v. Case, 122 sider the error assigned on the overrul- 
 
 Ind. $10, -: ■; N. E. Rep. 797. There is ing of the second motion for a new 
 
 an exception to the general rule, and trial. There might be a ease where a 
 
 thai is: where the grounds of the mo- second motion for a new trial would be 
 
 tion for a new trial are unknown at the proper, but this is not such a case." 
 time the motion in arrest is made. * People v. Center, 61 Cal. 191; 
 
 1 Indianapolis, etc., Co. v. McCaffrey, Thompson t>. Lynch, 43 Cal. 482; 
 
 62 End. 552; r.rannon p. IIav.42 Ind.92. Coombs v. Hilberd.43 Cal. 453: Wright 
 
 3 Moon O.Jennings, [19 End. 130. In v. Bovnton, 40 N. H. 353; Branger v. 
 
 the case cited it was said: "Parties Buttrick, 28 Wis. 450; Moll v. Benckler, 
 
 filing a motion for a new trial for errors 28 Wis. 611; Rodgers v. Hoenig, 46 
 
 occurring on the trial must include all Wis. 361; Kabe v. The Vessel Eagle, 25 
 
 the grounds in one motion; they can Wis. 10S; Cothren z>. Connaughton, 24 
 
 not separate them ami file a motion for Wis. 134; Cross v. State, 55 Wis. 261. 
 each cause assigned, and we do not con-
 
 OPPORTUN] IV FOR REVIEW. 781 
 
 fault of his, he is in fairness and justice entitled to lilt- a second 
 motion, or to amend one previously filed. 1 A party who asks 
 leave to file a second or subsequent motion must show that he 
 was not guilty of negligence in not embodying all the can 
 in one motion. 
 
 §838. Different Classes of Motions — It seems necessary in or- 
 der to avoid confusion to say that in the last three preceding 
 paragraphs we have treated of the ordinary motion for a 
 trial, that is, the motion calling in review errors in the rulings 
 of the court made in cases where the facts were known to the 
 party, and that we did not refer to a motion for a new trial as 
 matter of right, nor to a complaint for a new trial for matters 
 discovered after the close of the term. The classes of motions 
 are essentially different, and are governed, in many respects, 
 by different rules. We have already referred to a complaint 
 for a new trial, and we need do no more than say of a motion 
 for a new" trial as of right that it is not within the scope of our 
 subject. 2 
 
 § 839. Joint Motions — A joint motion by two or more parties 
 must be well taken as to all or there will be no error in over- 
 rulino- it. 3 The doctrine that parties who unite in a motion 
 must all have a right to insist upon it is nothing more than the 
 application of a general principle to particular instances. The 
 
 49 Ga. 22 1 ; Bryorly v. Clark. 4 S Texas, E. Rep. 899; Wafer v . Hamill, 44 Kan. 
 
 345; Haves o. Kenvon. 7 R. I. 531. See 447, 24 Pac. Rep. 950. 
 Andis v. Richie. 120 [nd. 13S. 3 Dorsey v. Md 
 
 - As to the general rules applicable to N.W. Rep. 1018; Miller v. Adamson,45 
 
 a new trial as of right, see Anderson v. Minn. 99. 47 N.W. Rep. 452; Firsl 
 
 Anderson, 128 1ml. 254; Stafford v. Bank v. Colter, 6i End. 153; Feenej v. 
 
 Cronkhite, 114 [nd. 220; Warburton v. Mazelin,8; liui. 226; Kendel p.Judah, 
 
 Crouch, to8 [nd. 83; Adams v. Wilson, 631^.291; Boyd v. Anderson, 102 End. 
 
 60 [nd. 560; Wilson .-. Brookshire, 126 217; Wolfe v. Kable, 107 Ind. 565; Car- 
 
 Ind. 497; Hawkins v . Heinzman, 126 nahan v. Chenoweth, 1 [nd. App 
 
 Ind. 551; Liggett v. Hinkley, 120 [nd. Carver v. Carver, 97 Ind ;.;. Robert- 
 
 387; Gulletl t. Miller. 106 [nd. 75; son v. Garshwiler, 81 Ind 
 Kreitline v. Fran/. 106 Ind. 359; Will-
 
 782 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 principle runs through all procedure, trial court and appellate. 
 It has been held that where there is a joint verdict against sev- 
 eral persons and a right of recovery as to two and no right to 
 a recovery as to a third, a motion for a new trial should be sus- 
 tained as to all of the defendants. 1 Where the rights of the 
 parties are several and distinct the motions should be several, 
 and the motion of one of such parties may be granted and that 
 of the other denied, although both are addressed to the same 
 decision. 2 
 
 g 840. The Requisites of the Motion— Generally— The motion 
 for a new trial is required to be in writing and the causes must 
 be specifically assigned. 3 Each ruling upon which a cause, or 
 reason, is based should be specified with reasonable certainty. 1 
 The court will not consider any other causes or reasons than 
 such as are so specified. The rule that the rulings must be 
 particularly specified is well illustrated by the cases which hold 
 that instructions must be specifically designated. 5 
 
 ;j 841. Time of Filing — Where there is no statutory provision 
 authorizing the filing of the motion at a time beyond the term 
 
 1 Graham v. Henderson, 35 Ind. 195; 
 Sperry v. Dickinson, 82 Ind. 132. See 
 Murray v. Ebright, 50 Ind. 302. 
 
 2 First National Bank v. Williams, 
 [26 Ind. 423, 26 X. E. Rep. 75; Hayden 
 v. Woods. 16 Neb. 306. But the mov- 
 ing party can not make errors available 
 which only affect other parties. Flood 
 :•. Joyner, 90 Ind. 459. 
 
 8 Addleman v. Erwin, 6 Ind. 494; 
 Madison, etc., Co. v. Trustees. S Ind. 
 528; Nutter i'. State, 9 [nd.178; Howes 
 v . Halliday, 10 Ind. 339; Lagro, etc., 
 Co. v. Eriston, 10 Ind. \\i. Stevens v. 
 Xevitt. 15 Ind. 224; Hubbell v. Skiles, 
 10 Ind. 138; Zimmerman v Marchland, 
 2 ; I nd. 474: Whalev v. Gleason, 40 Ind. 
 Kxutz v. Craig, 53 Ind 561; Har- 
 ris : . Boone, 69 Ind. 300. 
 
 4 Phelps f.Tilton. 17 Ind 423; Elnott 
 - Woodward, tS Ind. iSy, Marsh v. 
 Terrell. 63 Ind ;6 j M irley v. Noblett, 
 
 42 Ind. 85; Morton v. Wilson, 25 Ind. 
 316; Coryell v. Stone, 62 Ind. 307; 
 Evans v. State, 67 Ind. 6S; Watt v. De 
 Haven, 55 Ind. 128; Schlicht v. State, 
 56 Ind. 173; Lamance v. Byrnes, 17 
 Nev. 197; Dawson v. Baum, 3 Wash.Ty. 
 464. 19 Pac. Rep. 46; Hershey v. Knees, 
 75 Cal. 115, 16 Pac. Rep. 548; Lowrie 
 ; . Sal/. 75 Cal. 349. 17 Pac. Rep. 232; 
 Poullain v. Poullain, 79 Ga. 11, 4 S. E. 
 Rep. Si; Staser v. Hogan, 120 Ind. 207, 
 21 N. E. Rep. 911. 
 
 5 Ohio, etc., v. McCartney, 121 Ind. 
 3S5; Wallace V. Exchange Bank, 120 
 Ind. 265; Jones v. Layman, 123 Ind. 
 569. The cases cited deny the doctrine 
 of Dawson v. Coffman, 2S Ind. 220; 
 Bartholomew©. Langsdale, 35 Ind. 27S, 
 and asserl the sounder doctrine of such 
 cases as Estep v. Larsh, 21 Ind. 1S3; 
 Reeves v. Plough, 41 Ind. 204, and Grant 
 v. West fall. 57 Ind. 121.
 
 OPPORTUNITY FOR REVIEW. 
 
 at which the verdict, finding, or decision it seeks to call in re- 
 view was returned or made, the motion must be filed during 
 the term.' Our code provides that in cases where a verdict is 
 rendered on the last day of the term the motion may be filed 
 on the first day of the next term " whether general, special, or 
 adjourned."- The motion must be filed within the time pre- 
 scribed by law unless the time is extended by agreement," and 
 it has been said that it is doubtful whether the time can be ex- 
 tended by agreement. 4 
 
 § 842. Where Filed — As the motion is one addressed to the 
 court and requires a direct ruling by the court it must be 
 brought before the court in due form. The only safe course is 
 to file the motion in open court. It will avail nothing to merely 
 file it with the clerk in vacation. s 
 
 § 843. The Motion Ordinarily goes to the Whole Case— The gen- 
 eral rule is that a party must direct his motion to the entire 
 case. 6 It is not, as a rule, proper to permit a party to select 
 isolated issues and assail them by a motion for a new trial. 
 This is in accordance with the general principle that a case can 
 not be reviewed piecemeal. 7 
 
 1 We are not here speaking of com- an objection after the order granting it 
 plaints for a new trial filed after the is too late to be available. Gei-s r- 
 term, for such cases are independent Franklin Ins. Co., 123 Ind. 172. 
 
 ones not falling within the scope of the * American White Bronze Co. v. 
 
 subject of motions for new trial. Sand- Clark, 123 Ind. 230. 
 
 ers v. Loy.45 Ind. 229; I lines v. Durer, ft In Emison v. Shepard, 121 Ind. 1S4, 
 
 89 Ind. 339; Mercer v. Mercer, 1 14 Ind. it was said: "An application for a 
 
 558. A complaint for a new trial does new trial is made to the court, and it 
 
 not call up rulings for review, but pre- must be made during term time. The 
 
 sents original question-. statute expressly provides that the ap- 
 
 2 R. S. 1SS1, § 501. The word decis- plication shall be by motion, and a mo- 
 ion employed in the statute means find- tion is an application to the court." 
 ing. Herkimer v. McGregor, t?6 Ind. 'Johnsons. McCulloch, 89 Ind. 270; 
 : ( 7. 260. The statute extends the time State v. Tcmplin. 122 Ind. 235; Mills t;. 
 beyond the term to the first day of a State. 52 Ind. 1S7; Veatch 1 
 succeeding term, hut no longer. Col- Ind. 291; Morris v. State, 1 Blackf. 37; 
 ehen p.Ninde, 120 Ind. SS. Ex parte Bradley, [8 Ind. 548; Richter 
 
 ! City of Evansville v. Martin, 103 v. Koster, }=; Ind | (<>. 
 Ind. 206; Krutz v. Craig, 53 Ind. 561. T Champ v. Kendrick (Ind.), 30 N. E. 
 In cases where a new trial is granted Rep. . and cases cited.
 
 784 ERROR INJUDICIAL PROCEEDINGS 
 
 1 1. Exceptions to the General Unit — There are exceptions to 
 
 the general rule stated in the preceding paragraph, but they are 
 
 not numerous. 1 It is only where the rights of the party are se\ - 
 era! and distinct or the issues different and independent that a 
 new trial can lie awarded as to part of a case. Cases in our 
 own reports supply illustration of the award of new trial as to 
 a sina'le issue, and enforce the doctrine stated.- As an illus- 
 tration of a case where there is an independent issue may he 
 taken one wherein there is an issue formed upon an affidavit 
 for attachment and one upon the complaint. In such a case 
 there may he a new trial as to the issue upon the affidavit. 3 
 
 § 845. The Motion should be Complete in Itself— In strictness the 
 causes stated in a motion for a new trial should be so certain 
 and specific as to enable the court to identify the rulings assailed 
 without resorting to any other part of the record. This general 
 doctrine is enforced by the cases which hold that the motion 
 can not be made sufficient by referring to matters contained in 
 a bill of exceptions not on file at the time of the filing of the 
 motion. 4 But it has been held that where a bill of exceptions 
 is on file at the time the motion is filed it may be resorted to for 
 the purpose of supplying defects in the motion. 5 We think that 
 the true rule is that the motion itself must identify the ruling 
 complained of with such certainty as to recall to the mind oi 
 the trial court the particular ruling, and thus make it appear to 
 the appellate tribunal that the ruling was fairly presented to 
 the court of original jurisdiction for review. 
 
 1 Woodward ?. Ilorst, io Iowa, 120; lett, 105 Ind. 212; Check v. State. 37 
 
 Bond r. Wabash, etc., Co., 67 Iowa, 712; Ind. 533; Call v. Byram, 39 Ind. 499; 
 
 Schmittc. Schmitt,32 Minn. 130; Lake De Armond v. Glasscock, 40 Ind. 418; 
 
 v. Bender, iS Nev. 361. Morklar v. Lewis. 40 Ind. 1; Cobble p. 
 
 3 Houston i'. Bruner, 39 Ind. 376; First Tomlinson, 50 Ind. 550. 
 National Bank v. Williams, 1 26 Ind. 423. 5 Elliott t.. Russell, 92 Ind. 526, 529. The 
 
 3 Parsons v. Stockbridge, 42 Ind. 121. doctrine of the case cited does not seem 
 
 4 Sim v. Hurst, 44 Ind. 579; Rogers to have been followed in any other case, 
 r. Rogers, 46 Ind. 1; Shore v Taylor, and it is doubtful whether it is sound. 
 46 Ind. 345; Noble v. Dickson. .(S Ind. inasmuch as it seems to leave out of 
 t 7 1 : Dawson v. Hemphill, 50 Ind. 422; consideration the important office- of a 
 Sutherland v. Hankins, 56 Ind. 343; reviewing motion which are to clearlv 
 McCammack v. McCammack, 86 Ind. promt the ruling to the trial court for 
 
 Northwestern, etc.. Co. v. Haze- re-examination and to make it appear
 
 OPPORTUNITY FOR REVIEW. 
 
 785 
 
 § <S4G. Rulings on the Pleadings and Objections to the form of 
 the Judgment not Assignable as Causes for a New Trial — The gen- 
 eral rule is that rulings made in the formation of issues can not 
 be properly assigned as causes in the motion for a new trial, in- 
 asmuch as the motion only reaches matters relating to the trial 
 or matters connected with it. 1 Nor do objections to the form of 
 a judgment or decree form proper causes for a new trial. 2 As 
 we have seen, a judgment is to be questioned in a very differ- 
 ent mode. 3 A motion for a new trial assails a finding, decision 
 or verdict, not the judgment. 4 Rulings on motions to disn 
 and the like, are not properly assignable as causes for a new 
 trial. 5 
 
 § 847. Inconsistency between the Answers of the Jury to Inter- 
 rogatories and the General Verdict — The question as to the right 
 to a judgment in a case where the answers of the jury to inter- 
 rogatories are in conflict with the verdict can not be raised by 
 a motion for a new trial. 6 That question is properly presented 
 by a motion for a judgment on the answers to interrogatories. 
 The refusal of the court to submit interrogatories or to require 
 definite answers is, however, properly presented by a motion 
 for a new trial." 
 
 to the appellate tribunal that the ruling 
 was so presented as well as to present 
 to the appellate tribunal the same ques- 
 tions as those presented to the lower 
 court. 
 
 1 Chase v. Arctic Ditchers, 43 I ml. 74 ; 
 Daubenspeck v. Daubenspeck, 44 Ind. 
 320; Tucker v. Call. 45 Ind. 31 ; Hamil- 
 ton v. Elkins, 46 Ind. 213; Bowman v. 
 Phillips, 47 Ind. 341; Ward v. Bate- 
 man, 34 Ind. no; Cates v. Thayer, 93 
 Ind. 156; Reed v. Spayde, 56 Ind. 394; 
 Ringgenberg v. Hartman, 102 Ind. 537; 
 State v. Cady, 47 Conn. 44; Croweley 
 v. Pendleton, 46 Conn. 62; Davis 
 Pool, 67 Ind. 425; Glendy v. Lanning, 
 6S Ind. 142; Line v. Iluber, 57 Ind. 
 261; Marks v. Trustees, etc., 56 Iiul. 
 28S; Marshall v. Beeber, 53 Ind. S3; 
 Hunter v. Pitzmaurice, 102 Ind. 449; 
 
 50 
 
 Wabash, etc., Co. v. Nice, 99 Ind. 152. 
 
 2 Creech v. Richards, 76 Ga. 36. 
 
 3 Ante, § 796. 
 
 4 Sawyer v. Sargent, 65 Cal. 259; 
 Martin v. Matfield, 49 Cal. 42; R,, 
 weig v. Frazer, S2 Ind. 342; Rodefer 
 v. l'letcher, S9 Ind. 563. 
 
 5 Tyler v. Bowlus, 54 Ind. 333; Tib- 
 betts v. O'Connell.66 Ind. 171; Vawter 
 : . ( rilliland, 55 Ind. 27S. 
 
 fi Byram v. Galbraith, 75 Ind. 134; 
 Brickleyz>.Weghorn,7i Ind. 497; North- 
 western, etc. .Co. v. Blankenship, 94 Ind. 
 535. 548; Tucker v. Conrad, [03 Ind. 
 349; Baltimore, etc., Co. v. Rowan. 104 
 Ind. SS, 96; Louisville, etc., Co. 
 Kane. 120 End. 140; Stockton v. Stock- 
 ton. 40 Ind. 225, 22S. 
 
 7 Astley : . Capron, 89 Ind. 167; 
 Stockwell v. Thomas, 76 Ind. 506;
 
 736 ERROR [N JUDICIAL PROCEEDINGS. 
 
 § 848. Irregularity in the Proceedings of the Court — If the court 
 in matters pertaining to the trial violates settled rules of law or 
 procedure, and harm results to the complaining party, he is en- 
 titled to a new trial. But it is necessary that it should appear, 
 inferentially or directly, that the irregularities were of such 
 materiality as to prejudice his substantial rights. 1 The particu- 
 lar irregularities must be specified ; it is not sufficient to employ 
 the general words of the statute. 2 Error in granting, or in re- 
 fusing to grant, a change of venue, is an irregularity properly 
 assignable as a reason for a new trial. 3 A like rule applies to 
 rulings respecting applications for continuance.' Denying a 
 trial by jury where a party is entitled to it is cause for a new 
 trial and must be assigned in the motion/' Cases are numer- 
 ous wherein it is held that errors in impaneling the jury must 
 be particularly specified as causes for a new trial. It has been 
 held that the failure of the court to interfere upon request to 
 prevent or correct the misconduct of counsel in argument is an 
 irregularity; and if that court refuses to interfere and the mis- 
 conduct is material and influential, the irregularity will be cause 
 for a new trial." 
 
 Louisville, etc., Co. v. Thompson, 107 2S Ind. 220; Krutz v. Howard, 70 Ind. 
 
 Ind. 442; Berghoff v. McDonald, 87 174. 
 
 Ind. 549. See, also, Deatty v. Shirley, 4 KenU-.Lawson, 12 Ind. 675; Hughes 
 S3 Ind. 21S. As to the remedy where v. Ainslee, 28 Ind. 34^; Yater v. Mul- 
 interrogatories are not answered, see len, 23 Ind. 562; Pence v. Christ- 
 Bedford, etc., Co. v. Rainbolt, 99 Ind. man, 15 Ind. 257; Carr v. Eaton, 42 
 55 1, where Peters v. Lane, 55 Ind. 391, Ind. 3S5; Westerfield v. Spencer, 61 
 and Carpenter v. Galloway, 73 Ind. Ind. 339; Nichols v. State, 65 Ind. 512; 
 41S, are in part overruled. See, also, Arbuckle v. McCoy, 53 Ind. 63; Davis 
 Pittsburgh, etc., Co. v. Hixon, no Ind. v. Hardy, 76 Ind. 272. 
 225; Jones v. Angell, 95 Ind. 376; Mc- 5 Alley v. State, 76 Ind. 94; Griffin v. 
 Elfresh v. Guard, 32 Ind. 40S; West v . Pate, 63 Ind. 273; Ketcham v. Brazil, 
 Cavins, 74 Ind. 265. etc.. Co., S8 Ind. 515. 
 
 1 Telford v. Wilson, 71 Ind. 555; 6 Richie v. State, 59 Ind. 121; Iluber 
 
 Musselman v. Musselman, 44 Ind. 106. v. State, 57 Ind. 341; Gillooley v. State, 
 
 1 Tomer v. Densmore, 8 Neb. 3S4; 5S Ind. 182; Kinnaman v. Kinnaman, 
 
 Lowrie v. France, 7 Neb. 191; Phelps 71 Ind. 417; Porter v. Choen,6o Ind. 338; 
 
 - . Tilton, 17 Ind. 423; Scoville v. Chap- Combs v. State, 75 Ind. 215; School 
 
 man, 17 Ind. 470. Town of Rochester v. Shaw, 100 Ind. 
 
 8 Berlin v. Oglesbee, 65 Ind. 30S; 268; Campbell v. Maher, 105 Ind. 583; 
 
 Walker <'. Heller, 73 Ind. 46; Knarr v. Nelson v. Welch, 115 Ind. 270; Trover 
 
 Conaway, 53 Ind. 120; llorton v. Wil- v. State, 115 Ind. 331; Coble©. Eltzroth, 
 
 son, 25 Ind. 316; Dawson v. Coffman, 125 Ind. 429; Carter v. Carter, 101 Ind.
 
 ( (PPORTUNITY FOR REVIEW 787 
 
 §849. Irregularity of the -Jury or Prevailing Party— The code 
 
 seems to make a distinction between " irregularity" and " i 
 conduct," 1 and it is probable that it was intended that wh 
 there was intentional wrong the case should be treated as one 
 of misconduct, and where there was error but no bad intention, 
 the case should hv regarded as one of irregularity. It is really 
 of no great importance to which class a case is assigned, for if 
 there is a proper specification, the court will act upon it. Tin- 
 material thing is that the error or wrong should be particularly 
 specified and should appear to be influential and prejudical. 
 
 § 850. Abuse of Discretion— Where the court by an order or 
 ruling relating to the trial abuses its discretion to the injury of 
 a party, the ruling or order is properly specified as a cause for 
 new trial. It is obvious that the order or ruling must be stated 
 with particularity, since it is incumbent upon a party who seeks 
 a reversal because of an abuse of discretion to clearly point out 
 the particular wrong. The case must be a clear and strong one 
 or a reversal will not be adjudged. 
 
 §851. Misconduct of the Jury or Prevailing Party— We have 
 elsewhere shown that misconduct of parties, counsel or jurors 
 may be sufficient ground for the reversal of a judgment. To 
 malce the misconduct available as error the particular wrongful 
 acts must be specified in the motion for a new trial. 2 General 
 statements will be of no avail. 
 
 4 =;o. See, generally. Territory v . Ely, loch, 1:7 Ind. 500; People v. Wheatley, 
 
 6 Dak. i:S; Halloran v. Halloran (111.), SS Cal. 1 1 \. 26 Par. Rep. 95; Pracht v. 
 
 27 N. E. Rip. Sj; Johnson v. Slappey, Whittridge, 44 Kan. 710, 25 Pae. Rep. 
 85 Ga. 570, 11 S^ E. Rep. 862. i Morley V. Liverpool, etc., C 
 
 1 R. S. 1SS1, § 559, sulxlivisions 1 Mich. 210, 48 N. W. Rep. 50- Ran- 
 
 an( j 2 . dolpli v. Lampkin (Kv.), 14 S.W. Rep. 
 
 * Lennox v. Knox, etc., Co., 62 Me. 538; Houk v. Allen. [26 Ind. 568; 
 
 $22. See, generally, Newton v. Whit- Cheek v. State, 35 Ind. 492; Hodg 
 
 ney, 77 Wis. 515, 46 N. W Rep B82; Pale-. 10: Ind. y.\. De Priesl 1 - 
 
 Louisville, etc., Co. v. Hendricks, 128 68 Ind. 5 <.o. Affidavits of jurors 
 
 Ind. 462, 28 \. E. Rep. 58; People:', admissible to impeach verdict. I 
 
 Schad, 58 Hun. 571; People r. Kennedy, pell v. Northern, etc., Co., 43 Fed. R< 
 
 57 Hun. 532; State v.Gai S ; Wray v. Carpenter (Col.), 27 
 
 Rep. 934; New Albany, etc., v. McCul- Rep. 24S; and cases cited; Jon
 
 788 ERROR IN JUDICIAL PROCEEDINGS. 
 
 § 852. Accident or Surprise — The motion must particularly 
 specify "the grounds of the accident or surprise." 1 It is es- 
 sential to bring into the record such matters as show the char- 
 acter and influence of the surprise or accident. Where the 
 ground of the motion is that there was an accident the com- 
 plaining party must show, by the record, that the occurrence 
 relied upon as showing an accident, was one against which or- 
 dinary prudence, diligence, and vigilance could not have pro- 
 vided, and this is substantially true where the ground of the 
 motion is surprise. A party must expect, and use diligence 
 and prudence to provide against, such acts and measures as 
 usually occur or are taken in forensic contests. 2 The surprise 
 must be as to a matter of fact and not of law. 3 Where one 
 party wrongfully misleads another by violating an agreement, 
 a new trial is demandable upon the ground of surprise, provided 
 the complaining party is without fault. 4 
 
 § 853. Errors of Law Occurring ou the Trial — Errors of law 
 committed by the court on the trial are grounds for a new trial, 
 
 89lnd.82; Harding v. Whitney, 40 Ind. Rep. 524; Tripp, etc., Co. v. Martin 
 
 379; McKinley v. First National Bank, (Kan.), 26 Pac. Rep. 424; Shotwell v. 
 
 1 iS Ind. 375, and cases cited. McElhiney, 101 Mo. 677, 14 S. W. Rep. 
 
 1 In Snodgrass v. Hunt, 15 Ind. 274, 754; Crawford v. Georgia etc., Co., SG 
 it was said: "The grounds upon which Ga. 5,12 S. E. Rep. 176; Louisville, 
 the defendants were surprised should etc., V. Hendricks, 128 Ind. 462, and 
 have been distinctly pointed out in the casescited; Lockwood v. Rose, 125 Ind. 
 circuit court. And it is equally essen- 588; Scheible v. Slagle, 89 Ind. 323; 
 tial that each error of law relied on in Ruger v. Bungan, 10 Ind. 451; Helm :■. 
 support of the motion should have been First Nat. Bank, 91 Ind. 44; Gardner :•. 
 definitely presented to the court for its State, 94 Ind. 489; Sullivan v. O'Con- 
 consideration." Schellhous v. Ball, 29 ner,77lnd. 149; Pittsburgh, etc., Co. t;. 
 Cal. 605; Howe v . Briggs, 17 Cal. 385. Sponier, 85 Ind. 165; Brownlee v. Ken- 
 
 2 Dodge v. Strong, 2 Johns. Ch. 228; neipp, 41 Ind. 216; Chamberlain v. 
 Green v. Robinson, 5 How. (Miss.) So; Reid, 49 Ind. 332; Peck v. Hensley, 21 
 Ames v. Howard, 1 Sumn. 482; Carr Ind. 344; Guard v. Risk, 11 Ind. 156; 
 
 Gale, 1 Curt. C. C. 384; Alger v. Cox v. Harvey, 53 Ind. 174. 
 
 Merritt, 16 Iowa, 121; Turner v. Mor- 3 Craig v. Fanning, 6 How. Pr. 336; 
 
 rison, 11 Cal. 21; Stout v. Calver, 6 Hite v. Lenhart, 7 Mo. 22; Robbins, 
 
 Mm. 254; Jackson v. Roe, 9 Johns. 77; v. Alton, etc., Co., 12 Mo. 3S0; Mc- 
 
 Loorae v. Burt, 16 S. W. Rep. 439; Lennan v. Prentice, 79 Wis. 488, 4S N. 
 
 Crowell v. Harvey, 30 Neb. 570, 46 N. W. Rep. 4S7; Beals v. Beals,27 Ind. 77. 
 
 W. Rep. 709; Cole v. Fall Brook Coal 4 McBride v. Settles (Texas), 16 S. 
 
 Co., 57 Hun. 585, 10 X. V. Supp. 417; W. Rep. 422; Haynes :•. State, 45 Ind. 
 
 Gaines v. White (S. Dak.), 47 N. W. 424.
 
 OPPORTUNITY FOR REVIEW. 
 
 
 but to be available they must be specified with particularity. 
 It is not sufficient to employ general terms, although the) are 
 such as the statute supplies. Each ruling is required to be 
 specified. 1 Errrors of law occurring on the trial are such as 
 are committed respecting the opening and closing of the ca 
 the admission and exclusion of evidence, the instructing of the 
 jury and like matters, but if the particular ruling is appropri- 
 ately specified it is not important whether the general term 
 "errors of law" is or is not employed, although it is proper to 
 employ it and to follow it by particular specifications. 
 
 § 854. Verdict or Finding Contrary to Law or not Sustained by 
 Sufficient Evidence — Under our decisions an assignment of a 
 cause for a new trial that the " verdict or finding is not sus- 
 tained by sufficient evidence " is sufficient without further speci- 
 fication. 2 The assignment that the finding or verdict is con- 
 trary to law may also be made in general terms. 3 It has been 
 held in a very great number of cases that the appellate tribunal 
 will not weigh the evidence in cases where there is a conflict, 
 but will accept and act upon that which the court or jury trying 
 the case deemed trustworthy. The cases in which a judgment 
 
 1 Meaux v. Meaux, Si Kv. 475; Cum- 
 mings v. Ross, 90 Cal. 68, 27 Pac. Rep. 
 62; Coleman v. Gilmore, 49 Cal. 340; 
 Danley v. Robbins, 3 Ark. 144; Putnam 
 v. Hannibal, etc., Co., 22 Mo. A.pp. 5S9; 
 Raymond v. Thexton, 7 Mont. 299; 
 Phoenix Ins. Co. V. Readinger. 2S Neb. 
 587, 44 N. W. Rep. S64; Street v. Le- 
 mon, etc., Co., 9 Nev. 251; Dawson v. 
 Biium, 3 Wash. Ter. 464, 19 Pac. Rep. 
 46; State V. Gallagber, 16 La. Ann. 3SS; 
 Beal v. Stone, 22 Iowa. 447. Seifrath v. 
 State, 35 Ark.412; Kimball ©.Whitney, 
 15 Ind. 2S0; Burt v. Hoettinger, 28 Ind. 
 214; Spurrier v. Briggs, 17 End. 529; 
 Elliott v- Woodward, 18 Ind. 1S3; Snod 
 grass v. Hunt. 15 Ind. 274; Barnard v. 
 Graham, 14 Ind. 322; Patterson ©.Jack, 
 59 Iowa, 632; Brooker rc. Weber, 41 Ind. 
 421,; Stone v. State, t- I,ui - l ,s - 
 also, Kelley v. Burnell, 14 Ind. 32S; 
 
 Foster v. State, 59 Ind. 481; Wilds v. 
 Bogan, 55 Ind. 331; Marsh v. Terrell, 
 63 Ind. 363. 
 
 2 Collins v. Maghee, 32 Ind. 2 
 Weston v. Johnson, 4S Ind. 1. See 
 Edmonds v. State. 34 Ark. 720. Some 
 of the courts require a much more 
 definite statement. Hill v. Weisler, 49 
 Cal. 146; Parker p. Reay. 76 Cal. 103; 
 Coleman v. Gilmore. 49 Cal. 340; Fitch 
 V. Bunch, 30 Cal. 20S. It is not suffi- 
 cient to assign that the "verdict 
 against the weight of the evidence." 
 Waggoner v. Liston, 37 Ind. 357. 
 
 5 A- to when a verdict can he said to 
 he contrary to law. see Robinson, etc.. 
 Works v. Chandler. ;(■ Ind 
 Bosseker ; Cramer, lS Ind. 44; G 
 X). State. 68 hid. 10! ; Pottfi P. Fclton, 70 
 Ind. 100.
 
 7<iO ERROR IN JUDICIAL P DINGS. 
 
 has been reversed upon the ground that the finding or verdict 
 is not sustained by the evidence are very rare. Many appel- 
 late courts refuse to consider such a cause at all. 
 
 :: 855. Damages — Questioning the Amount of Recovery— In order 
 to make an error in the assessment of damages available, the 
 specification in the motion for a new trial must be directly ad- 
 dressed to the amount of the recovery. A party cannot attack 
 the assessment of damages unless he assigns as a cause for a 
 new trial the specific reason that the amount awarded is errone- 
 ous. 1 Thus, a party can not make available an error in the as- 
 sessment of damages under a specification that the verdict is 
 contrary to the evidence. It is sufficient to employ the general 
 terms of the statute in assailing the amount of the recovery 
 without particularlv specifying the error in the assessment. 2 
 
 § 856. Damages in Aetions in Tort and Damages in Actions on 
 Contract — It is an established general rule that a party can not 
 assign one cause for a new trial and succeed upon another. In 
 accordance with this general principle, it is held that a cause 
 challenging the assessment of damages in actions for a tort is 
 ineffective in actions upon contract. The rule in this state is 
 that in order to question the amount of damages assessed in ac- 
 tions ex delicto, the fourth statutory cause for a new trial must 
 be assigned, 3 and in order to question the assessment of dam- 
 
 1 Davis v. Montgomery, 123 Ind^Sj; 26M0. App.431 ; Mcnkr. Home, etc., Co. 
 
 Thickstun v. Baltimore, etc., Co., 119 76 Cal. 50, 14 Pae. Rep. S37; Mazeheitz 
 
 I ml. 26; Fort Wayne v. Beyerle, no v. Pimentel, S3 Cal. 450; Allgro v. 
 
 Ind. 100; Millikan v. Patterson, 91 Ind. Duncan, 24 Howard Pr. (N. Y.), 210. 
 
 515; McElhocs v. Dale, Si Ind. 67; In McGrime v. State, 30 Ind. 140, it 
 
 Langohr v. Smith, Si Ind. 495; Hyatt was held that the specification, "the 
 
 v. Mattingly, 6S Ind. 271; Kelso v. court erred in finding any sum against 
 
 Wolf, 70 Ind. 105; Ringlc v. First Na- the defendant," was insufficient. 
 tional Bank, 107 Ind. 425; Frank v. 3 McCormick, etc., Co. v. Gray, 114 
 
 Kessler, 30 Ind. 8; Dix v. Akers, 30 Ind. 340, 16 N. E. Rep. 7S7. In Clark 
 
 [nd.431; City of Indianapolis v- Parker, Civil Township©. Brook6hire, 114 Ind. 
 
 31 Ind. 230; Walpole v. Carlisle, 32 437, it was said: "It is assigned as a 
 
 Ind. 415; Rosenbaum v. McThomas, 34 cause for new trial that the damages 
 
 I nil. 331; Oiler v. Bodkcy, 17 Ind. 600; are excessive. This is not an action for 
 
 Spurrier v. Briggs, 17 Ind. 529. tort, and hence that assignment raises 
 
 1 Lake Erie, etc., Co. v. Acres, 108 no question as to the amount of the re- 
 
 Ind. 548. See, also, Ray v. Thompson, covery." This doctrine is asserted in
 
 OPPORTUN [TY !•'< >R REVIEW. 
 
 '91 
 
 ages in actions ex contractu, the fifth statutory cause musl 
 
 specified. 1 
 
 § 857. Newly Discovered EvideDee — A motion for a new trial 
 upon the ground of newly discovered evidence is not regarded 
 with favor. The policy of the law is to require of parties care, 
 diligence and vigilance in securing and presenting eviden 
 It is indispensably necessary that the moving party should 
 clearly show that he exercised diligence in his efforts to dis- 
 cover and produce the evidence on the trial. 3 The facts con- 
 stituting the diligence must be stated ; it is not enough to aver 
 diligence in general terms. 4 The record must make it clearly 
 appear that the newly discovered evidence is of such a char- 
 acter as that it would probably change the result in the event 
 that a new trial should be granted 5 It is held in a great num. 
 
 other cases. Thomas r. Merry, 113 
 Ind. 83; Lake Erie, etc., Co. v. Acres, 
 108 Ind. 54S; Dix v. Akers, 30 Ind. 
 431; Franks. Kessler, 30 Ind. 8; Mc- 
 Kinney v. State, 117 Ind. 26; Smith v. 
 State, 117 Ind. 167; Hogshead v. State, 
 120 Ind. 327; Western, etc., Co. v. Stu- 
 debaker, etc., Co., 124 Ind. 176. 
 
 1 Moore v. State, 114 Ind. 414, 422. 
 
 2 Hinesr. Driver, 100 Ind. 31 5; Moore 
 -•. Philadelphia Bank, 5 S. & R. (Pa.) 
 41; Baker v. Joseph. 16 Cal. 173; Coe 
 V. Givan, 1 Blackf. 367. 
 
 3 Harrington -•. Witherow. 2 Blackf. 
 37; Cooper v. State, 120 Ind. 377; State 
 v. Clark, 16 Ind. 97; Martin v. Garver. 
 40 Ind. 351; Bissotr. State. 53 I1UL40S; 
 Clouser v. Clapper, 59 Ind. 54S; Test v. 
 Larsh, 100 Ind. 562; Skaggs v. S 
 
 10S Ind. 53; Blackburn v. Crowder, no 
 Ind. 1:7; Allen v. Bond, 112 End. ;:;,; 
 McCauley v. Murdock, 97 Ind. 229; 
 Ragsdale v. Matthews, 93 [nd, 589; 
 Du Souchet v. Dutcher, 113 Ind. 249; 
 Pennsylvania Co. V. Nations, in Ind. 
 203; Marks v. State, 101 Ind. 353; Pem- 
 berton v. Johnson. 113 [nd. 538; Bart- 
 ley V. Phillips, 114 Iiul. 1S9; She\valter 
 v. Williamson, 125 Ind. 373; First Nat. 
 
 Bank v. Murdough, 40 Iowa. 26; Car- 
 son -•. Henderson, 34 Kan. 404; Evans 
 v. Christopherson, 24 Minn. 330; Mo- 
 ses v. Vroman. 5 Wis. 147, 149; How- 
 land v. Reeves,25 Mo. App.458; Peter- 
 son v. Gresham, 25 Ark. 380. 
 
 * Keisling v. Readle, 1 Ind. App. 240, 
 243; Toncy r.Toney, 73 Ind.34: Hines 
 v. Driver, 100 Ind. 315; Wall v. State, 
 So Ind. 140; Ragsdale V, Matthews. 93 
 Ind. 5S9; Schnurr v. Stuts, 119 Ind. 
 429; Ward v. Voris, 117 Ind. 
 Skaggs v. State, 10S Ind. 53, and cases 
 cited; Anderson v. Hathway (Ind.), 
 30 N. E. Rep. ; Smith v. Will- 
 iams. 11 Kan. 104. See Pemberton v. 
 Johnson. 1 13 Ind. 53S; Blackburn v. 
 Crowder, 1 10 Ind. 1 27. 
 
 5 Oneal v. State, 47 Ga. 229; State 
 v. Stain. 82 Me. 472; Tull v. Pop. 
 
 N. C. [83; Traveler-., etc., Co. V. Har- 
 
 vey, 82 Va. 949; Windham, etc.. Bank 
 
 V. Kendall. 7 R. I. 77; Bl E < rlea- 
 
 son, 27 Vt. 114: Bixby v. State, 15 Ark. 
 305; Petefish v. Watkins, 124 111. 384; 
 
 McCormick V. Central R. R. c 
 
 Cal. 506; Grace 1 McArthur, 7'' Wis. 
 641; Gallup v. Henderson,* N.Y.Supp. 
 914; Hall :. Lyons, 29 W. Ya. 410;
 
 793 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 ber of cases, and by main - courts, that a new trial will not be 
 granted where the new evidence is merely cumulative. 1 The 
 general rule that a new trial will not be granted to let in purely 
 impeaching evidence is declared by cases too numerous to 
 cite. 2 The motion is required to give the names of the newly 
 discovered witnesses, if the new matter consists of oral testi- 
 mony, or if it consists of a writing, the writing must be pro- 
 duced if it can be done ; if it is not in the power of the party to 
 produce it, a statement of its substance should be given. The 
 affidavit of the newly discovered witness must accompany the 
 motion. 3 The party must show by his own affidavit the truth 
 of the testimonv, 4 the probability of procuring the evidence in 
 
 Morgan v. Bell, 41 Kan. 345; McDonald 
 v. Early, 24 Neb. SiS; People v. Sacket t . 
 14 Mich. 320; State v. Burge, 7 Iowa, 
 255; Parsons v. Piatt, 37 Conn. 563; 
 Culbertson v. Hill, S7 Mo. 553; Byrne 
 v. Reed, 75 Cal. 277; Mechanics, etc., 
 Co. v. Nichols, 16 N. J. L. 410; Leschi 
 V. Territory, 1 Wash. Tcr. 13; Ander- 
 son V. Market, etc., Bank, 66 How. Pr. 
 S; Brady v. Mayor of New York, 22 
 J. & S. (N. V.) 457; Rainey v. State, 
 53 Ind. 27S; Simpson v. Wilson, 6 Ind. 
 474; llines v. Driver, 100 Ind. 315, and 
 cases riled; Suman v. Cornelius, 7S 
 Ind. 506. 
 
 1 We cite a few of the many cases. 
 Sutherlin v. State, 108 Ind. 389; De 
 Hart v. Aper, 107 Ind. 4(10: Marshall v. 
 Mathers, 103 Ind. 458; Harper v. State, 
 roi Ind. 109; Dodds v. Vannoy, 61 Ind. 
 89; Winsett v. State. 57 Ind. 26; Mar- 
 tin v. Garver, 40 Ind. 351; State v. 
 Clark, 16 Ind. 97; Simpson v. Wilson, 
 6 Ind. 474; Kaul v. Brown (R. I.), 20 
 Atl. Rep. 10; Jones v. Chicago, etc., 
 Co., 42 Minn. 1S3, 43 N.W. Rep. H14; 
 Erskine v. Dully. 76 Ga. 602; Marcum 
 :■. Commonwealth (Ky.).i S. W. Rep. 
 727; Oeder, 80 Iowa, 72, 45 
 
 N. W. Rep. 543: Dollman v. Mun- 
 10 Mo. 85, 2 S. W. Rep. 134: Fay 
 z>. Richards, 30 111. App. 477: Baker 
 v. Moor, S4 Ga. iS6. 10 S. E. Rep. 737; 
 
 Wieting v. Millston, 77 Wis. ^23, 4A N. 
 W. Rep. 879; Brazil V. Peterson. 44 Minn. 
 212. 46 N. W. Rep. 331; Roberts V. 
 Johnstown Bank, 60 Hun. 576, 14 N. V. 
 Supp. 432. 
 
 2 Of the great number of cases we 
 lite, McDermott v. Iowa, etc., Co. 
 (Iowa), 47 N. W. Rep. 1037; Russell v. 
 Nail, 79 Texas, 664. 15 S. W. Rep. 635; 
 State v. Garig (La.1. 8 So. Rep. 934; 
 Shotwell :•. McElhinney, 101 Mo. 677, 
 14 S. W. Rep. 754; Husted v. Mead. 5S 
 Conn. 55, 19 Atl. Rep. 233; State v. 
 Smith, 35 Kan. 61S, n Pac. Rep. 90S; 
 Evans v. State, 67 Ind. 6S; M'Intire v. 
 Young, 6 Blackf. 496: Humphreys v. 
 State. 75 I ml. 469; O'Dea v. State, 57 
 Ind. 31; Bland v. State, 2 Ind. 608; 
 Keck v. Umphries, 4 Ind. 492; Flem- 
 ing v. State, 11 Ind. 2t.x\ Jackson v. 
 Sliarpe, 29 Ind 167; Brown v. Grove, 
 1 16 Ind. S4. 
 
 3 McQueen v. Steward. 7 Ind. 535; 
 Gibson v. State, 9 Ind. 264; Harris v. 
 Rupel, 14 Ind. 209; Shipman v. State, 
 38 Ind. 549; Harper v. State. 101 Ind. 
 109; Gardner v. State, 9.1 Ind. 4S9; 
 Hill v. Roach, 72 Ind. 57. 
 
 * Harrison School Township "'. Mc- 
 Gregor, 96 Ind. 185; Hatton v. Tones, 
 78 Ind. 466; McCammack v. McCam 
 mack, S6 Ind. 3S7.
 
 OPPORTUNITY FOR REVIEW. 793 
 
 the event that a new trial is awarded and the facts constituting 
 diligence. It is implied in our statement that the evidence must 
 be such as would probably change the result, that the new lv dis- 
 covered evidence must be competent, material and relevant. 1 
 The rule that a clear and full showing must be made is enforced 
 with strictness, 2 and for the reason given in the opening sentence 
 of this paragraph. It is not a sufficient excuse for failing to pro- 
 duce the affidavit of the newly discovered witness to aver that 
 ne refuses to make an affidavit, for the reason that the court 
 will, upon proper application, compel the witness to make the 
 necessary affidavit. 3 
 
 § 858. Counter Affidavits — Counter affidavits upon the ques- 
 tion of diligence are admissible. 4 If there is a conflict of evi- 
 dence upon the disputed question of fact the appellate tribunal 
 will not disturb the finding of the trial court. 5 As we have 
 elsewhere shown, affidavits and like matters must be properlv 
 brought into the record. It is not sufficient to incorporate or 
 recite them in the motion. 6 
 
 § 859. Verification of the Motion — A motion presenting for re- 
 view rulings of the court such as those made in admitting and 
 excluding evidence and the like is not required to be verified. 
 Motions assigning as causes, misconduct of the jury or the pre- 
 vailing party, accident or surprise, and newly discovered evi- 
 
 1 Marks v. State, 101 Ind. 353; Moon- * Lister v. Boker, 6 Blackf. 439; Duig- 
 
 ey v. Kinsey, 90 Ind. t,$\ Ilamm v. Ro- nan v. YVyatt, 3 Blackf. 3S5; Humphreys 
 
 mine, 98 Ind. 77; Knox v. Work, 2 v. Klick, 49 Ind. 1S9. 
 
 Binn. (Pa.) 5S2; Lisher v. Pratt. 9 la. 3 Rater v. State, 49 Ind. 507. As to 
 
 59; Howard v. Winters, 3 Nev. 539; what is a sufficient excuse for a failure 
 
 State 1). Ray, 53 Mo. 345; Hupp v. Mc- to produce the witness, see Gibson v. 
 
 Inturf, 4 III. App. 449; Bond v. Cutler, State, 9 Ind. 264. 
 
 7 Mass. 205; Drayton v. Thompson, 1 * Zeller v. Griffith, S9 Ind. So. 
 
 Bay. (So. Car.) 263; Pike v. Evans, 15 5 De Hart v. Aper, 107 Ind. 460. 
 
 Johns. 210; Wynne :'. Newman, 75 Va. 6 Ante, §§ S14, Si^. Kitch v. Oatis, 
 
 Si 1 : Hobler v. Cole, 49 Cal. 250; Wal- 79 Ind. 96; Harper v. State, 101 Ind. 
 
 lace v. Tumlin, 42 Ga. 462; Parker v. 109; Allen p. Gillum. 16 Ind. 234; Mc- 
 
 Bates, 29 Kan. 597; Meyer v. Fiegel, Kee v. McDonald, 17 Ind, 518; Free- 
 
 3S How. Pr. 424; Sharpe v. Traver, S man v. Bowman, 25 Ind. 236. 
 Minn. 273; Devot r. Marx, 19 La. Ann. 
 491.
 
 794 
 
 ERROR IN JUDICIAL PROCEEDINGS. 
 
 dence must be supported by affidavit. 1 As appears from what 
 has been said the affidavits must present substantive and ma- 
 terial facts. Mere general statements or mere averments of 
 conclusions will not supply the place of facts, nor will mere 
 outlines be sufficient, for the facts must be so stated that the 
 court can perceive their materiality and competency and esti- 
 mate their probable influence. 2 
 
 1 R. S. iSSi. ()§ 559, 562. haustive collection of authorities ir. 
 
 2 The subject of new trials is admira- made by the writer of the article to 
 hlv discussed in an article in the Amer- which we have referred upon ai. branch- 
 ican and English Encyclopedia of Law, es of the subject. 
 
 vol. 16, p. 500. An excellent and ex-
 
 Part III. 
 
 FORMS.
 
 CHAPTER I. 
 
 FORMS USED IN TRIAL PRACTICE INCIDENT TO APPEALS. 
 
 ^ S6o. Caption — Title of cause — Sig- § S6S. Misconduct of jurors — Bill of 
 
 nature. exceptions. 
 
 S6i. Agreed case. 869. Appeal in term — Record entry. 
 
 862. Reserved questions of law — Bill 870. Appeal bond. 
 
 of exceptions. 871. Appeal after term — Notice be- 
 
 863. Questions of law arising on the low to party. 
 
 instructions — Bill of excep- 872. Appeal after term — Notice to 
 tions. the clerk. 
 
 864. Motion to dismiss appeal — Bill S73. Praecipe for transcript. 
 
 of exceptions. 874. Notice to co-party. 
 
 S65. Motion to make more specific — S75. Transcript — Formal parts. 
 
 Bill of exceptions. S76. Transcript — Certificate of clerk 
 Sb6. Challenge of juror — Bill of ex- where entire record is ordered. 
 
 ceptions. 377. Transcript — Certificate where 
 867. Bill of exceptions on the over- special directions are given. 
 
 ruling of a motion for a new 
 
 trial 
 
 § 860. Caption — Title of Cause — Signature— In order to econ- 
 omize space we say, once for all, that motions, pleadings, and 
 instruments must be properly entitled. The names of the 
 parties should be given and the title of the court. The papers 
 filed in the trial court should, of course, be entitled according 
 to the title of the case in that court and the parties designated 
 as plaintiffs and defendants. The transcript and all papers 
 filed on appeal should give the title of the court to which the 
 appeal is prosecuted. As is well known the parties on appeal 
 are designated as appellants and appellees. We do not give 
 the titles in the forms that follow, but it is to be understood that 
 all papers are to contain the proper title of court and parties 
 in the caption. It is also to be understood that the pleadings, 
 motions and the like must be appropriately signed, and that 
 bills of exceptions must be properly signed and attested. 
 
 (797) *
 
 798 
 
 FORMS. 
 
 61. Agreed Case. 
 
 The plaintiff (naming kirn) and the defendant {naming him) 
 do agree that the controversy between them shall be and is 
 hereby submitted to the court as an agreed case. The afore- 
 said parties do agree that the facts in the case are as follows: 
 t Here state the facts fully '.' ) 
 
 The demand of the plaintiff is that he is entitled to recover 
 of the defendant {here set forth the nature of the plaintiff's de- 
 mand). The demand of the defendant is {here set forth the de- 
 fendant's demand') . 
 
 If the law is with the plaintiff the court is authorized to award 
 him judgment upon the facts here submitted as an agreed case ; 
 it" the law, upon the facts stated, is with the defendant the court 
 is authorized to award him judgment. 2 
 
 {Affidavit.) The plaintiff {naming him) and the defendant 
 {naming him) being each duly sworn, 3 say upon oath, that the 
 controversy stated in the foregoing agreed case " is real, and 
 the proceedings are in good faith to determine the rights of the 
 parties." 
 
 Subscribed and sworn to before me this day of 
 
 {Record Entry.) Come now the plaintiff {naming him) and 
 the defendant {flaming him) and file an agreed case and affi- 
 davit which reads thus {here copy statement and affidavit), and 
 the said parties submit the said agreed case to the court for 
 
 hearing and judgment. And now on this day of 
 
 the court finds for the plaintiff that he is entitled to recover 
 {here give the finding). Wherefore it is considered and adjudged 
 by the court that {here give the judgment or decree). To which 
 finding and judgment the defendant at the time excepts, 4 and 
 prays an appeal to the Supreme Court of the State and asks for 
 sixty days in which to file a bond, and the court fixes the pen- 
 alty of the bond at dollars, and grants sixty days time in 
 
 which to file it. 
 
 1 The facts, not the evidence, must be made by the one of the parties. Booth 
 
 Btated. Ante, §§ 228, 229. v. Cottingham, 126 Ind. 431. Ante, 
 
 "The agreed statement must, of §223. The affidavit can not be made 
 
 course, be properly signed. Both par- by an attorney. Ante, § 227. 
 
 hould sign it. 4 Ante, § 
 
 3 It is sufficient if the affidavit is
 
 FORMS USED IN TRIAL PRACTK T'.i» 
 
 § 862. Reserved Questions of Law — Bill of Exceptions. 
 
 Be it remembered, that the above entitled cause came on for 
 
 trial on the day of , being the judicial day of 
 
 said court, and, before the commencement of the argument, 
 the plaintiff, in writing, requested the court to instruct the jury 
 in writing and to give to the jury the following instruction : 
 
 " If the jury believe, from the evidence, that the plaintiff bought 
 the promissory note described in the complaint from John Jones, 
 the payee, that Jones indorsed the note to the plaintiff, that 
 the plaintiff gave full value for it, bought it before maturity, in 
 good faith, and without notice of any fraud on the part of the 
 pavee, or of any other defense, your verdict should be for the 
 plaintiff." But the court refused to give the jury the said in- 
 struction to which the plaintiff at the time excepted, and gave 
 the jury, in writing, the following instructions. {Here insert.) 
 That the said instructions were all that were given in the case. 
 That the plaintiff gave in evidence the note described in the 
 complaint. {Here insert.) That the defendant executed the 
 said note upon the faith and in reliance on the fraudulent rep- 
 resentation of the payee Jones, that {set forth the representation). 
 That the defendant received no consideration whatever for said 
 note. That the plaintiff did buy said note, in good faith, before 
 maturity, that he paid therefor dollars, that Jones in- 
 dorsed the same to the plaintiff, and that the plaintiff bought 
 said note in the usual course of business and without notice of 
 any fraud on the part of Jones and without notice of any de- 
 fense. That the foregoing statement covers and embraces all 
 the facts of the case. 
 
 That the jury returned a verdict for the defendant in the 
 words and figures following, to wit, {here insert) whereupon the 
 plaintiff filed a motion for a new trial in the words and figures 
 following, to wit, {here insert) and the court overruled said mo- 
 tion to which the plaintiff at the time excepted. The plaintiff 
 thereupon notified the court that he intended to take the case 
 to the Supreme Court upon a reserved question of law, and 
 upon a bill of exceptions, and tiled the following motion, 1 to 
 
 1 It is probably not necessary to file a written motion, but it is the safer and 
 better practice. Ante, § 235.
 
 800 FORMS. 
 
 wit, {here insert 1 ), and at the time requested the court to cause 
 the record to be so made as to enable the Supreme Court to 
 apprehend the particular question involved, and the court so 
 directs. That the court rendered and caused to be entered the 
 following judgment, to wit, {here insert). That the court in 
 order to present the question oflaw reserved by the plaintiff so 
 as to enable the Supreme Court to apprehend the particular 
 question involved does sign and seal this bill of exceptions, and 
 orders that it be made part of the record. 
 
 § 863. Questions of Law arising on the Instructions— Bill of Ex- 
 ceptions. 
 
 Be it remembered that on the day of , 18 — , the 
 
 above entitled cause was submitted to a jury for trial and the 
 defendant, before the commencement of the argument, in 
 writing requested the court to instruct the jury in writing and 
 to give to the jury the following instruction {here insert defend- 
 ants request and instruction), but the court refused to give the 
 said instruction, to which ruling the defendant at the time ex- 
 cepted. That the court of its own motion gave to the jury the 
 following instructions {here insert the instructions of the court), 
 and also gave the following instructions asked by the plaintiff 
 {here insert instructions given at the request of the -plaintiff). 
 That no other instructions were given to the jury. That upon 
 the retirement of the jury the defendant gave to the court in 
 writing the following notice {here insert), thereby notifying the 
 court that he intended to take the case to the Supreme Court, 
 upon the questions of law arising on the refusal to give the in- 
 struction asked by him, pursuant to Rule XXX of that court. 
 That the undersigned judge of the said court, in order to pre- 
 sent the questions of law arising upon the refusal to give the 
 instruction asked by the defendant, hereby states that there 
 was competent evidence tending to prove the defendant's theory 
 and material to the point covered by said instruction, in this, 
 
 1 Form of motion: The plaintiff moves the instruction asked by him, that the 
 
 the court to cause the record to be so Supreme Court may be able to appre- 
 
 made as to present the question of law hend the particular question involved. 
 bv him reserved on the ruling refusing
 
 I ORMS I SED l\ TRIAL PRACTICE. gfjl 
 
 that the evidence tended to prove the following facts. [Here 
 set forth the facts . ' ) 
 
 And now to present the questions of law arising on the re- 
 fusal to give the instruction asked by the defendant as afore- 
 said, the judge of said court does sign and seal this bill 
 
 of exceptions and order that it be made part of the record. 
 Signed and sealed this day of . 
 
 £ 864. Motion to Dismiss Appeal — Bill of Exceptions. 
 
 Be it remembered that on this the day of , 1892, 
 
 being the judicial day of the term of said court, the 
 
 defendant filed the following written motion to dismiss the appeal 
 of the plaintiff, to wit : 2 The defendant moves the court to dis- 
 miss the appeal of the plaintiff from the board of commissioners 
 of Marion county, for the reason that the plaintiff was not a 
 party to the proceedings before said board of commissioners, 
 and no affidavit was filed by him, or any one in his behalf, 
 " setting forth that he has an interest in the matter decided 
 and that he is aggrieved by the decision of the said board," 
 and that as appears from the transcript of the proceedings of 
 the board no affidavit was filed. The court overruled the said 
 motion, to which ruling the defendant at the time excepted, and 
 thereupon the defendant presents this his bill of exceptions, 3 
 which is signed and sealed the day and year aforesaid by the 
 judge of said court. 
 
 § 865. Motion to make more Specific — Bill of Exceptions. 
 
 Be it remembered that on the day of , 18 — , be- 
 ing the judicial day of the term of the said 
 
 court, the defendant filed a motion in writing to compel the 
 plaintiff to make his complaint more specific, which motion is 
 as follows, to wit : {Here insert, motion to make more specific 
 
 1 It is the facts which the evidence whereupon the defendant asks ten days 
 tends to prove, and not the evidence, time in which to reduce the exception 
 that should be set forth. to writing, and the court grants the re- 
 
 2 It is not necessary to write the mo- quest and allows ten days time to re- 
 tion in the bill, but it may be brought duce the exceptions to writing, a- re- 
 into it by reference. Ante, $§ 818, S19. quested. 
 
 3 If time is taken, the recital ma\ b : 
 
 51
 
 802 FORMS. 
 
 filed on the day of iS — .') And the court overruled 
 
 the motion to which the defendant at the time excepted. The 
 defendant thereupon asked ten days time in which to reduce 
 his exception to writing, and the court orders that ten days 
 time be given to reduce the exception to writing as requested. 
 
 And now on the day of , being the judicial 
 
 day of said court and within the time heretofore granted the 
 defendant presents to the judge of said court this, his bill of 
 exceptions, which is this day signed and sealed by the judge 
 of the court aforesaid. 2 
 
 £ 866. Challenge of Juror — Bill of Exceptions. 
 
 Be it remembered that the above entitled cause came on for 
 
 trial on the day of , 1892, being the judicial 
 
 day of the term of the court, and came also the jury 
 
 called to try said cause. That each and all of said jurors were 
 duly sworn to true answers make to such questions as might be 
 asked them touching their competency to serve as jurors ; that 
 one of the said jurors so called and sworn was John Doe. 
 That the plaintiff, by his counsel, propounded to John Doe the 
 following questions to which he returned the following answers. 
 {Here set forth in full the questions and answers?) That the 
 plaintiff thereupon objected to the competency of said Doe to 
 serve as a juror, and stated to the court, as ground of chal- 
 lenge, that the said Doe shows by his answers that he is inter- 
 ested in the said action adversely to the plaintiff, 3 but the court 
 overruled the plaintiff's challenge, to which ruling the plaintiff 
 at the time excepted, and the said Doe was sworn and served 
 as a juror. That the foregoing questions and answers com- 
 prise all the questions asked and all the answers made by said 
 Doe, and that no other or further statements were made by 
 
 1 It is the safer course to state the fendant filed his bill of exceptions on 
 
 time of filing, as it is necessary to iden- the ruling denying his motion to make 
 
 tily the instrument. Ante, §§ 817, 818, the complaint more specific. 
 
 But the practice does not seem to The bill of exceptions is required to 
 
 1 nd so much strictness. be filed within the time fixed by the 
 
 8 Entry of filing: On this day court. 
 
 of . being the judicial day of 3 The specific ground of challenge 
 
 the term of the court, the de- iTin-t be stated. Ante, § 77S.
 
 FORM ED IN TRIAL PRACTICE. 803 
 
 him. 1 And now on the day and yeai above written the plaint- 
 iff presents to the judge of the said court this bill of 
 
 exceptions which is signed, sealed, and made part of tin- 
 record . 
 
 § 867. Bill of Exceptions on the Overruling of a Motion for Sen 
 Trial. 
 
 Be it remembered that on the trial of the above entitled 
 cause and before the jury were examined the defendant moved 
 the court to permit him to open and close the case, and in sup- 
 port of his motion stated to the court that the burden of the 
 issue, as shown by the pleadings, was upon him, but the court 
 refused to permit him to open and close the case, but ruled that 
 the plaintiff was entitled to open and close, and the defendant 
 at the time excepted to said ruling. Thereupon the plaintiff 
 introduced as a witness one John Doe, and the said witness 
 was asked the following question by plaintiff's counsel {set forth 
 the question), to which question the defendant at the time ob- 
 jected and stated to the court the following grounds of objec- 
 tion, to wit: i. That the question calls upon the witness to 
 testify as to the contents of a contract which the complaint of 
 the plaintiff shows to be in writing. 2. That the question asks 
 for oral evidence of the contents of a written instrument con- 
 stituting the contract between the parties. But the court over- 
 ruled the defendant's objection, to which ruling he excepted at 
 the time, and the said John Doe answered said question as 
 follows : {Here set forth the answer.) That the plaintiff intro- 
 duced as a witness Robert Roe, and propounded to him the fol- 
 lowing question {here set forth the question) ; that the witness gave 
 the following answer {set forth the answer), which the defendant 
 moved the court to strike out, and stated to the court the following 
 reasons on support of his motion: 1. That the answer of the 
 witness show's that he does not speak as to matters within his own 
 knowledge, but has repeated what was said to him by Thomas 
 Noakes, a stranger to the parties herein. 2. That the answer 
 of the witness shows that he is giving mere hearsay testimony. 
 
 1 The entire examination of the chal- anapolis, etc., Co. v. Pitzer, 109 Ind. 
 lenged juror must be set forth. Indi- 179; Johnson v. rlolliday, 79 Ind. 151.
 
 804 FORMS. 
 
 Jiui the court overruled the defendant's motion to strike out the 
 foregoing answer of said Roe, to which ruling the defendant 
 at the time excepted. The plaintiff also gave the following 
 evidence, the written contract set forth in the cornplaint {here in- 
 sert), and also introduced the witnesses named, who testified as 
 follows : {J fere set forth the names of the witnesses and the tes- 
 timony of each.) That the plaintiff rested, whereupon the de- 
 fendant introduced the following evidence: {I/ere set forth 
 defendant's evidence.) And this was all the evidence given in 
 the cause. That, before the beginning of the argument, the 
 defendant requested the court to instruct the jury in writing, 
 and in writing requested the court to give instructions num- 
 bered one, two and three [here insert request and instructions of 
 the defendant), that the court refused to give each and all of 
 the said instructions to which the defendant at the time ex- 
 cepted. That the court gave to the jury the following in- 
 structions {here insert instructions of the court), to the giving 
 of each of which the defendant at the time excepted. That 
 the aforesaid instructions so given by the court were duly filed 
 and were all the instructions given in the cause. That on the 
 
 day of , 1892, the defendant filed a motion for new 
 
 trial which was by the court overruled, to which the defendant 
 at the time excepted, and prayed the court to grant him sixty 
 days 1 in which to file a bill of exceptions, which request was 
 granted by the court. 
 
 That on the day of , 1892, the defendant pre- 
 sented to the Honorable , sole judge of the said 
 
 court this, his bill of exceptions. 2 
 
 And now on the day of , being within the time 
 
 heretofore granted, this bill is signed, sealed and made part of 
 the record. 
 
 1 The record independently of the bill granted, but this statement can not sup- 
 must show that time was granted in ply the place of a statement of the date. 
 which to file it. Ante, §§ Soo, Soi. It a The bill on its face must show its 
 is proper and usual, although not in presentation to the judge. Ante, §802. 
 itself sufficient, to state generally that The bill must be filed, but the date of 
 the bill was presented within the time its presentation to the judge is the im- 
 portant element. Ante, $ S05.
 
 FORMS USED IN TRIAL PRACTICE. 
 
 § 868. Misconduct of Jurors — Bill of Exceptions. 
 
 Be it remembered that on the day of the plaint- 
 iff mov*!d the court for a new trial for the reason, as therein 
 specified, that John Doe, one of the jurors impanneled to try 
 said cause, was guilt)' of misconduct, in that he, the said juror, 
 went in company with the plaintiff to a dram seller's shop and 
 there drank intoxicating liquors with and at the expense of the 
 defendant, and then and there promised the defendant to re- 
 turn a verdict in the defendant's favor. That the plaintiff in 
 support of his motion filed and read to the court his own affi- 
 davit, and the affidavits of John Smith and Robert Roe (Acre 
 insert affidavits), that the defendant filed and submitted to the 
 court his own affidavit and the affidavit of John "Doe (here insert 
 affidavit). That no other affidavits were filed or submitted and 
 that no other evidence was heard or given upon said motion. 
 That the plaintiff's motion was overruled, to which he at the 
 time excepted, on the day of , 18 — . 
 
 And now on the day last named this bill of exceptions is 
 signed, sealed and made part of the record. 
 
 § 869. Appeal in Term — Record Entry. 1 
 
 Come now the parties by their attorneys and the court over- 
 rules the motion of the defendant for a new trial, to which rul- 
 ing the defendant at the time excepts. And the said defendant 
 prays an appeal to the Supreme Court of the State and prays 
 that the court fix the penalty of the appeal bond, name the 
 sureties therein and fix the time in which the appeal bond shall 
 be filed, and the court grants the prayer of the defendant and 
 does order that A. and B. (naming sureties), shall be sureties on 
 
 the appeal bond, that the penalty of the bond shall be 
 
 dollars, and that the defendant be and is hereby allowed thirty 
 
 days in which to file the appeal bond. And now on the 
 
 day of comes the defendant and files his appeal bond, 
 
 properly conditioned, in the penalty of , with A. and B. 
 
 (name sureties) as sureties therein, which bond reads thus 
 (here insert bona), and the said bond is approved by the court. 
 
 1 Ante, s s s s 246, 247, 2 4& H is ex- (Sup. Ct. Ind., March 31, 189J), that a 
 press.lv decided in Sweeney, Ex parte bond is essential t 1 the appeal.
 
 806 FORMS. 
 
 § 870. Appeal Bond. 
 
 Know all men by these presents, That we are held 
 
 and firmly bound unto in the penal sum of dol- 
 lars, to the payment of which, well and truly to be made, 
 we bind ourselves, our heirs, executors, administrators and 
 assigns, jointly and severally, firmly by these presents. 
 Sealed with our seals and dated this day of , 18 — . 
 
 The condition of the above obligation is such, that whereas, 
 
 heretofore, to wit : on the day of , 18 — , the said 
 
 in the Court, recovered a judgment against the 
 
 said for the sum of dollars, in damages and costs 
 
 of suit ; from which said judgment of said Court, the 
 
 said has taken an appeal 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 ,' then the above 
 
 obligation shall be null and void ; otherwise to be and remain in 
 
 full force and virtue in law. [Seal.] 
 
 [Seal.] 
 
 [Seal.] 
 
 Approved , 18 — 
 
 , Clerk. 
 
 § 871. Appeal after Term — Notice Below to Party. 
 
 The plaintiff in the above entitled cause hereb} r gives notice 
 to the defendant in said cause that he, the plaintiff, will appeal 
 to the Supreme Court of the State of Indiana, from the judg- 
 ment rendered against him in said cause on the day of 
 
 , 1 8 — , by said Court. 
 
 1 If the action concerns the possession lates to the possession of personal prop- 
 of land and the appellant desires to re- city, the following provision should be 
 tain possession, the following provision written in the bond at the place indi- 
 should be written in the bond at the cated by the figure i, " and shall also de- 
 indicated by the figure i , "and shall liver or return to the said the 
 
 also pay all damages which may be sus- personal property described in the plead- 
 
 tained by the said for the mesne ings in the above entitled cause, and 
 
 profits, for waste, or for damages to the shall pay the reasonable value of its 
 
 land described in the pleadings in the use and any damages it may sustain 
 
 above entitled cause during the pend- during the pendency of the said appeal." 
 
 ency of said appeal." If the action re- See Ante. >S§ 360, 3S3.
 
 FORMS USED IN TRIAL PRACTK E 
 
 § 872. Appeal alter Term— Notice to Hie Clerk. 1 
 
 To the clerk of the court. The plaintiff in the above 
 
 entitled cause hereby noli lies you that he will appeal to the 
 Supreme Court of the State of Indiana from the judgment ren- 
 dered against him in said cause on the day of , l8 — . 
 
 § 873. Precipe for Transcript. 
 
 To the clerk of court : The defendant requests you to 
 
 prepare and properly certify, for use on appeal to the Supreme 
 Court of Indiana, a transcript of the following papers, orders 
 and proceedings filed and had in the above entitled cause, i. 
 The complaint, answer and reply. 2. The defendant's motion 
 
 for a new trial, filed on the day of , 18 — . 3. The 
 
 bill of exceptions, filed on the day of ,18 — . 4. All 
 
 orders, rulings and exceptions made and taken in said cause, 
 and the judgment therein rendered. 2 
 
 §874. Notice to Co-Party. 
 
 To {flaming him). You are hereby notified that the under- 
 signed will appeal the above entitled cause to the Su- 
 preme Court of Indiana from the judgment therein rendered on 
 
 the day of , and you are notified to join in said 
 
 appeal or to decline so to do. 
 
 § 875. Transcript— Formal Parts — Commencement. 
 
 Be it remembered that heretofore, to wit, on the day of 
 
 -, 18 — , the plaintiff, by . his attorney, tiled in the 
 
 office of the clerk of - court the following complaint, 
 
 namely 
 
 1 Ante, §§ :=;o. 251. tion i- given it may be thus expn 
 
 2 Ante, § 200. If a transcript of the The clerk i- directed to prepare and 
 entire record is desired, a general direc- certify tor use on appeal to the Supreme 
 tion is all that need he given, and where Court a transcript of all papers tiled in 
 there is no specification it is the duty said cause, all order- and rulings, and 
 of the clerk to certify up a transcript ol the judgment therein rendered. 
 
 the entire record. If a general direc-
 
 808 FORMS. 
 
 § 876. Transcript— Certificate of Clerk where Entire Record is 
 Ordered. 
 
 I, , clerk of the* court of Indiana, do hereby 
 
 certify that the above and foregoing transcript contains full, 
 true and complete copies of all the papers and entries in said 
 cause. 1 
 
 § 877. Transcript — Certificate where Special Directions are Given. 
 
 I, , clerk of the court of Indiana, do hereby 
 
 certify that the above and foregoing transcript contains true, 
 full and complete copies of the complaint, answer and reply, 
 the motion for a new trial, the bill of exceptions, all orders and 
 rulings, entries and exceptions made and taken in said cause, 
 in accordance with the written request of the defendant (nam- 
 ing- hm) hereto attached. 2 
 
 1 Houston v. Reid, 49 Ind. 1S1. It is, 2 Ante, §§ 200 to 202, inclusive. The 
 of course, implied that signature and frcecipe must be attached to the tran- 
 seal shall be appropriately affixed. script.
 
 CHAPTER II. 
 
 FORMS USED IN APPELLATE PRACTICE. 
 
 § S7S. The assignment of errors — Or- § 8S5. Assignment of cross-errors. 
 
 dinarv form. 886. Petition for certiorari — Omis- 
 
 S79. The assignment of errors — Ap- sion of parts of record. 
 
 peal from the Marion Superior 8S7. Petition for certiorari — Change 
 
 Court. of record by nunc pro tunc en- 
 
 850. Failure to notify co-parties — try. 
 
 Motion to dismiss. 8S8. Petition to advance — Matter of 
 
 851. Acceptance of payment of judg- public interest. 
 
 ment — Motion to dismiss. SSg. Petition to advance — Matter of 
 
 852. Failure to perfect the appeal private concern. 
 
 within the time prescribed — S90. Motion to vacate supersedeas. 
 
 Motion to dismiss. 891. Notice of motion. 
 
 553. Common joinder. 892. Motion to reinstate. 
 
 554. Application for leave to amend S93. Petition for rehearing. 
 
 the assignment of errors. S94. Motion to modify mandate. 
 
 § 878. The Assignment of Errors — Ordinary Form. 
 
 John Doe, Appellant, -\ 
 v. I 
 
 Richard Roe f* ^ n tne Supreme Court of Indiana. 
 
 John Noakes, Appellees.' J 
 
 The appellant avers that there is error in the proceedings 
 and judgment in said cause, in this : 
 
 First. The complaint of the appellees does not state facts 
 sufficient to constitute a cause of action. 
 
 Second. The court erred in overruling the demurrer of the 
 appellant to the second paragraph of the complaint. 3 
 
 Third. The court erred in sustaining the demurrer of the 
 appellees to the second paragraph of the appellant's answer. 
 
 Fourth. The court erred in overruling the appellant's motion 
 
 1 We have given the caption of the of directing attention to the rule that 
 
 assignment of errors for the reason that the appellants and appellees must all be 
 
 it shows the proper arrangement of the named. Ante, §§ ^22. 323. 
 
 names of the parties, and for the purpose • Ante, §§ 471, 472, 473. 474. 
 
 (809)
 
 810 FROMS. 
 
 to compel the appellees to answer the interrogatories pro- 
 pounded to them. 
 
 Fifth. The court erred in the conclusions of law stated upon 
 the special finding of facts. 
 
 Sixth. The court erred in overruling the appellant's motion 
 for a new trial. 
 
 Seventh. The court erred in overruling the appellant's mo- 
 tion for a veni7'e de novo. 
 
 Eighth. The court erred in overruling the appellant's motion 
 to modify the decree and judgment. 
 
 Wherefore the appellant prays that the judgment be reversed. 
 
 § 879. Appeal from the Marion Superior Court— Assignment of 
 Errors. 
 
 The appellant says there is error in the proceedings and 
 judgment in this cause, in this, to wit : The Marion Superior 
 Court in general term erred in reversing the judgment of the 
 court in special term. 1 
 
 § 880. Failure to Notify Co-Parties— Motion to Dismiss. 
 
 The appellee in the above entitled cause moves to dismiss 
 the appeal of the appellants and for cause assigns, 
 
 That John Doe is a co-party of the appellants in the judg- 
 ment from which this appeal is prosecuted, and no notice has 
 been served upon him nor has he joined in the appeal. That 
 the action wherein the judgment appealed from was rendered 
 was brought by the appellee to recover the possession of real 
 estate, that the appellants and John Doe were parties to said 
 action, that the trial court found the facts specially, that the 
 said court stated in its finding that the defendants were in pos- 
 session of the land, claiming title adversely to the appellee, 
 that it was adjudged by said court that the defendants had no 
 title to said land and that their possession was wrongful. 2 
 
 1 Ante, § 310. Gutperle v. Koehler, and the form of such an assignment is 
 
 84 Ind. 237; Iladk-v v. Milligan, 100 substantially the same as that on ap- 
 
 Ind. 249. I'h. assignment of errors in peal to the Supreme Court or the Ap- 
 
 eneral term on : 1 j > j > «.- ; 1 1 from the pellate Court. 
 
 special terra must particularly specify 2 Ante, §§ 139, 145, inclusive. 
 the rulings upon which error i-. aliened,
 
 FORMS USED IN APPELLATE PRACTICE. 811 
 
 § 881. Acceptance of Payment of Judgment — Motion to Dismiss. 
 
 The appellee moves the court to dismiss the appeal of the 
 appellant and, upon oath, deposeth : That heretofore, to wit, 
 
 on the day of the appellee paid to the appellant 
 
 the sum of dollars, in satisfaction of the judgment from 
 
 which the appeal is prosecuted, and the appellant accepted the 
 said sum in full payment and satisfaction of said judgment. 1 
 
 Subscribed and sworn to before me this day of , 
 
 1 8— . . 
 
 § 882. Failure to Perfect the Appeal within the Time Prescribed 
 — Motion to Dismiss. 
 
 The appellee moves the court to dismiss the appeal of the 
 appellant, and for cause shows : That the final judgment from 
 which the appeal is prosecuted was rendered and entered on 
 
 the day of. , and that the appeal was not taken until 
 
 the day of , more than one year after the rendition 
 
 and entry of judgment. 2 
 
 § 883. Common Joinder. 
 
 The appellee says there is no error in the proceedings or 
 judgment in the above entitled cause. 
 
 § 884. Application for Leave to Amend the Assignment of Errors. 
 
 The appellant represents to the court that at the time his 
 counsel wrote the assignment of errors herein they omitted to 
 name A. B. and C. D. as appellees ; that the omission to name 
 said parties was owing to the fact that counsel were misled by 
 the mistake of the clerk of the trial court in omitting to state 
 the names of said A. B. and C. D. in the introductory part of 
 the transcript. 
 
 Wherefore appellant prays that he may be permitted to 
 amend his assignment of errors. 3 
 
 § 885. Assignment of Cross-Errors. 
 
 The appellee in the above entitled cause assigns cross-errors 
 and avers that : 
 
 1 Ante, ^ 150, 151, 152, 410 to 412. in- 2 §$ 5:4. 53a, 533. 
 elusive. s Ante, § 353.
 
 812 FORMS. 
 
 First. The court erred in overruling his demurrer to the ap- 
 pellant's complaint. 
 
 Second. The court erred in sustaining the appellant's de- 
 murrer to the third paragraph of the appellee's answer. 
 
 Third. The court erred in overruling the appellee's motion 
 to modify the judgment. 
 
 § 886. Petition for Certiorari — Omission of Parts of Record. 
 
 The appellant respectfully represents to the court that the 
 transcript certified up by the clerk of the court is incor- 
 rect and incomplete in this, to wit : 
 
 i. The demurrer of the appellant to the second paragraph 
 of the appellee's answer is omitted from the transcript. 
 
 2. The clause, written in the bill of exceptions, "And this 
 was all the evidence given in the cause," is omitted from the 
 copy of the bill in the transcript. 
 
 Wherefore the appellant prays that an order be issued to the 
 
 clerk of the court commanding him to make and certify 
 
 to this court the demurrer to the second paragraph of the ap- 
 pellee's answer, and the entries relating thereto, and the clause 
 omitted from the bill of exceptions. 1 
 
 § 887. Petition for Certiorari— Change of Record by Nunc pro tunc 
 Entry. 
 
 The appellant shows to the court : That the record in the 
 
 court has been corrected by an order of said court in 
 
 this, to wit, by changing the entry in the order book of said 
 
 court so as to show that the demurrer of the appellant to 
 
 the second paragraph of the appellee's answer was overruled. 
 
 Wherefore the appellant prays that the clerk of said 
 
 court be ordered to certify to this court a transcript of the 
 order aforesaid and all the proceedings relating thereto. 2 
 
 § 888. Petition to Advance— Matter of Public Interest. 
 
 The appellant represents to the court that the controversy in 
 
 the above entitled cause concerns the right of the town of 
 
 to levy and collect taxes ; that the appellees resisted the right 
 
 1 Petition should be verified. Ante, 7 Ante, §§ 209 to 220, inclusive. 
 
 § 220.
 
 FORMS USED IN APPELLATE PRACTICE. 813 
 
 of said town to collect taxes upon the ground that the act of 
 
 , under which the taxes were assessed, is invalid, and 
 
 that the court below so adjudged. Your petitioner further rep- 
 resents that the case is one of public interest, and that many 
 cases depend upon the decision that shall be herein given. 
 Wherefore the appellant prays that the cause be advanced. 1 
 
 § 889. Petition to Advance— Matter of Private Concern 
 
 The appellant represents to the court that the suit wherein 
 the judgment was rendered was brought by the appellee to 
 foreclose a mortgage ; that the appellant filed therein a cross- 
 complaint asserting that a judgment owned by him was a prior 
 lien on the land described in the mortgage ; that the court, upon 
 the hearing, found against the appellant, and, in the final de- 
 cree, adjudged that his lien was subordinate to that of the ap- 
 pellee. The appellant further represents that if this court 
 should affirm the judgment of the trial court, he desires to re- 
 deem from the sale made upon the appellee's decree as a 
 junior lien holder, and is able and ready so to do, but that if 
 the judgment is reversed his lien will be entitled to priority. 
 The appellant also represents that the sale was made on the 
 
 day of upon the decree, and a certificate issued by 
 
 the sheriff to the appellee ; that the year allowed by law for re- 
 demption will expire on the day of ; that unless 
 
 this cause is advanced the decision can not be rendered in time 
 to permit the appellant to redeem as a junior incumbrancer in 
 the event that the judgment should be affirmed. 
 
 Wherefore he prays that the cause may be advanced. 2 
 
 § 890. Motion to Vacate Supersedeas. 
 
 The appellee moves the court to vacate the order of super- 
 sedeas herein issued and for cause shows : 
 
 First. That the sureties in said bond are wholly and notori- 
 ously insolvent, and that neither of them is the owner of any 
 property subject to execution. 3 
 
 1 The petition must be verified. See is approved below it must appear that 
 
 ante, §$ 463 to 469, inclusive. the sureties have become insolvent 
 
 1 Ante, § 463. sinee the order of the trial court ap- 
 
 % Ante, §$ 399, 400. Where the bond proving the bond. Ante, $$ 36C, 367.
 
 iS l4 FORMS. 
 
 Second. That the bond is insufficient in form and substance 
 for the reason that it does not contain a promise to pay the 
 judgment from which the appeal is prosecuted. 1 
 
 § 891. Notice of Motion. 
 
 The appellee hereby notifies the appellant that he has filed a 
 motion to dismiss the appeal, upon the ground that the appel- 
 lant has received and accepted full payment of the judgment 
 from which the appeal is prosecuted. The appellant is further 
 
 notified that the motion will be heard on the day of 
 
 or as soon thereafter as the court may deem proper. 2 
 
 § 892. Motion to Reinstate. 
 
 The appellant moves the court to vacate the order dismissing 
 the appeal in the above entitled cause and to reinstate the 
 same. The appellant shows that the day after said cause was 
 submitted, his attorney, A. B., was prostrated by illness and 
 was unable to give any attention to business for more than sixty 
 da vs. That because of the illness of A. B., a brief was not filed 
 within the time prescribed by the rules of court, and that the 
 appellant did not know of the requirement of said rules, but 
 relied wholly upon his attorney. The appellant further shows 
 that he believes that there is merit in his appeal, and that it 
 was taken and prosecuted in good faith and upon the advice 
 and belief that he is entitled to a judgment of reversal. 3 
 
 § 893. Petition for Rehearing. 
 
 The appellant petitions the court to grant a rehearing in the 
 above entitled cause He respectfully represents that the court 
 in its opinion and decision erred upon the following points, 4 
 to wit : 
 
 First. In holding that the contract sued on by the appellee 
 is not within the statute of frauds. 
 
 Second. In holding bad the answer of the appellant plead- 
 ing the statute of limitations to the second paragraph of the 
 appellee's complaint. 
 
 1 Ante, ')>; 365, 378, 397. of course, be varied to conform to the 
 
 "Ante, §§ 532. 533. We ^ive one particular instance, 
 form of notice of motion. Forms must, 3 Ante, §§ 537 to 540, inclusive. 
 
 4 Ante, $ 555.
 
 FORMS USED IN APPELLATE PRACTK > 1 ;, 
 
 Third. In holding that the bill of exceptions taken by the 
 appellant is not in the record. 
 
 Fourth. In refusing to consider the appellant's motion to 
 modify the judgment. 1 
 
 § 894. Motion to Modify Mandate. 
 
 The appellant moves the court to modify or change the man- 
 date, in this, to wit : 
 
 That the mandate be so changed as to direct the trial court 
 to re-state its conclusions of law and enter judgment thereon, 
 as re-stated, in favor of the appellant. 
 
 In support of this motion the appellant shows : 
 
 i. That upon the facts stated in the special finding the ap- 
 pellant is entitled to judgment. 
 
 2. That the facts contained in the special finding show that 
 there is no ground or reason for directing a new trial, and that 
 the appellant is entitled to have judgment pronounced upon the 
 facts. 2 
 
 1 The form here given is proper where ing a great variety of forms, and we 
 
 a full brief is filed, if no brief is filed the have not attempted to do more than 
 
 petition must discuss questions fully, give such forms as will suggest those 
 
 Ante, Chapter XXVIII. appropriate to particular cases. 
 
 ' Lack of space prevents us from giv-
 
 INDEX. 
 
 [References are to Sections.] 
 
 A 
 
 ABATEMENT, 
 
 is not caused by death of party after appeal is taken, 166, 167. 
 of appeal where cause of action does not survive, 169. 
 
 ACCIDENT, 
 
 relief against, when appeal may be allowed after statutory time, 112, 
 may be ground for allowing assignment of errors to be filed after time, 304. 
 or surprise, as ground for new trial, S52. 
 motion for new trial on ground of, must be supported by affidavit, S^q. 
 
 ADMINISTRATOR, 
 
 may appeal, 133, 137. 
 
 substitution of, 137. 
 
 should unite with heirs in appeal, when, 16S. 
 
 ADVANCEMENT OF APPEALED CASES, 
 authority of court to order, 462. 
 ( good cause must be shown for, 463. 
 
 can not be had by mere agreement of parties, 464. 
 
 application for, 465. 
 
 submission must precede, 466. . 
 
 notice of application for, 467. 
 
 hearing of motion for, 46S. 
 
 questions for decision on motion for, 469. 
 
 tbrms of petitions for, S8S, SS9. 
 
 AFFIDAVIT, 
 
 for publication of notice, 1S3. 
 
 for certiorari, 220, 221. 
 
 in agreed case, 22}. 227. 
 
 in support of motion in bar of appeal. 411. 
 
 in support of motion to reinstate appeal, 540. 
 
 going to trial 011 merits without objection waive- right to require, 084. 
 
 may be filed now for then, 693. 
 
 must generally he made part of record bv bill oi exeeptions, S17, and n. : 
 
 on p. 769. 
 for attachment, new trial a- to i-sue upon. 844. 
 
 52 (817)
 
 818 
 
 INDIA 
 
 [References are to Sections.] 
 AFFIDAVIT— continued. 
 
 where new trial is sought on ground of newly discovered evidence, 857-859. 
 
 counter, admissible on question of diligence, S58. 
 
 in support of motion for new trial on ground of misconduct, accident or 
 
 surprise, 859. 
 in agreed ca6e, 861 and note 3. 
 
 AGREED CASE, 
 
 jurisdiction of, affidavit is essential to, 223, 227. 
 
 differs from agreed statement of facts, -24. 
 
 pleadings are not required, 224, 225. 
 
 motion for new trial is not necessary. 224, 225. 
 
 parties acting upon theory of, will be held to it on appeal, 224. 
 
 distinctive features of, 225, 226. 
 
 exception to decision is necessary, 225. 
 
 no presumption in favor of trial court, 226. 
 
 affidavit must be made by a party, 227. 
 
 ultimate facts should be fully and definitely stated, 228, 229. 
 
 statement of facts is like a special verdict, 229. 
 
 effect of statement, 230. 
 
 mistake in statement, when and how corrected, 231. 
 
 record in, 232. 
 
 form of, S61. 
 
 ALIMONY, 
 
 can not be allowed by trial court pending appeal from decree in divorce 
 
 case, 543. 
 AMENDMENT, 
 
 of proof of notice, 185. 
 
 of record, 206-222, 281. 
 
 where leave to amend may precede assignment of errors, 302. 
 
 of assignment of errors, 353. 
 
 of defective bond, 377. 
 
 leave to amend defective bond must be promptly asked, 379. 
 
 of pleadings can not be made after case is remanded with directions to 
 
 reassess damages, 576, n. 3. 
 of pleading takes the old pleading out of the record, and ruling thereon 
 
 can not be assigned as error, 595, 683. 
 of pleading is largely in discretion of trial court, 607. 
 denying leave to amend may be abuse of discretion, 608, 609. 
 of pleadings after verdict, 610, 61 1. 
 of pleadings defective merely in form will be deemed to have been made 
 
 On appeal, 64O, 720. 
 of bill of exceptions. 825, S26. 
 
 AMOUNT 1\ CONTROVERSY, 
 
 iffecting question of jurisdiction, 53-61-
 
 INDEX 819 
 
 [References are to Secti 
 AMOUNT IN CONTROVERSY— continued. 
 
 how determined, 56, 59-61. 
 
 effect of judgmenl of trial court upon the question, 60. 
 
 interest after judgment not considered in determining, 61. 
 effect of remittitur upon, 62. 
 effect of counter-claim upon, 63, 64. 
 
 ANSWER. 
 
 to assignment of error, 403-40S. 
 
 what must be specially pleaded in answer to assignment of errors. 407, 408. 
 
 can not be attacked for first time on appeal, 476, 4S0. 
 
 effect of proving a bad answer, 4S4-4S6. 
 
 bad, is good enough for a bad complaint, 627. n. 
 
 error in overruling demurrer to one of several paragraphs is prejudicial, 669. 
 
 error in sustaining demurrer to one of several paragraphs may not be 
 
 prejudicial, 669. 
 waives demurrer, 6S3. 
 
 APPEAL, 
 
 definition, 15. 
 
 not allowed piecemeal, iS, n. 3. 
 
 exception to rule, 99. 
 
 right of, appellate tribunal determines, 23 
 
 under code, 24. 
 
 no right to jury trial on, 29, 30. 
 
 is part of remedy in which there is no vested right, 75, 76, 354, n. 1. 
 
 what may be appealed from, 75-110. 
 
 only judicial questions can be considered on, 78. 
 
 time within which it must be taken, 111-130. 
 
 parties, 131-169. 
 
 process, 170-1S5. 
 
 record and transcript, 1S6-222. 
 
 upon instructions, 193. 
 
 from ruling on application for nunc pro tunc entry, 214. 
 
 in civil actions. 245-253. 
 
 in matters connected with decedents' estates, 254-268. 
 
 in criminal cases, 269-29S. 
 
 dismissal of, 376. 
 
 failure to take in time, how question is presented, 40S. 
 
 order of docketing and hearing, 458-469. 
 
 dismissal and reinstatement, 519-540. 
 
 effect of, 541-549. 
 
 objection that it was prematurely taken, when waived, 6S4. 
 
 in term, form of entry, 869. 
 
 APPEAL AFTER TERM, 
 
 notice must he given, 249, 250. 
 no bond is necessary, 250.
 
 
 INDEX 
 
 | A\ /, rences are to s, ■ tions.] 
 APPEAL AFTER TERM— continued. 
 
 how notice must be issued and served, 251. 
 form of notice, 87 1. s 7-. 
 
 APPEAL IN CIVIL ACTIONS, 
 different modes of appeal, 245. 
 appeal in term, 246. 
 requisites of appeal in term, 246. 247. 
 bond is essential to appeal in term, 247, 24S. 869, n. 
 ineffectual attempt to appeal in term will not prevent appeal thereafter on 
 
 notice, 249. 
 appeal after term, notice must be given, 249, 250. 
 no bond is necessary to appeal after term, 250. 
 classes of appeal after term, 251. 
 how notice must be issued and served, 251. 
 what cases are appealable as civil actions, 252, 253. 
 
 APPEAL IX CRIMINAL CASES, 
 statutory mode is exclusive, 269. 
 
 can not be taken under statute governing appeals in civil actions, 270. 
 classes of appeals, 271. 
 
 by State, from what it lies, 272, 273, 29S. 
 State can present only epiestions of law, 274, 278. 
 preparation of record, 275. 
 bill of exceptions, 276. 
 exceptions must be taken, 277. 
 
 motion for new trial unnecessary on part of State, 277. 
 how questions of law may arise, 279. 
 what record must show on behalf of State, 2S0. 
 def( ird, where certiorari lies, 2S1. 
 
 notice of appeal by State, 2S2, 2S3. 
 time within which State must perfect appeal, 2^4. 
 time can not be extended by agreement, J"^. 
 waiver of failure to appeal in time, 2S5. 
 
 appeal by defendant, 2S6. 
 
 time within which defendant must appeal, 2S6, n. 2. 
 
 notice of appeal by defendant, 286. 
 
 notice may be waived, 2S6. 
 
 what defendant must do to perfect appeal, 287. 
 
 appeal by one of several defendants, 288. 
 
 waiver of right of appeal, 2S9. 
 
 waiver of errors, 29O. 
 
 presumptions, 201 . 
 
 record must show prejudicial error, 292. 
 
 objections must be made in trial court. 293. 
 
 ird must exhibit rulings complained of, 294. 
 bill of exceptions where defendant appeals, 295. 296.
 
 INDEX. 821 
 
 \Referenccs are to Sections.] 
 APPEAL IN CRIMINAL CASES— continued. 
 
 appeal by defendant does not vacate the judgment, 297. 
 effect of appeal by State, 29S. 
 
 APPEAL IN DECEDENTS' ESTATES CASES, 
 
 special statute, how far it governs, 25 (, 255. 
 
 cases not within the special statute, 256. 
 
 cases which are within the statute, 257. 
 
 test for determining whether case is within the statute, 25S, 260. 
 
 construction of the statute, 259, 260. 
 
 must be taken within time prescribed, 261, 
 
 when time may be extended, 261, 263. 
 
 steps necessary to perfect appeal, 262. 
 
 steps necessary to secure extension of time, 263, 264. 
 
 notice of application for extension, 264, 265. 
 
 briefs on application, 266. 
 
 bond must be filed in time, 267. 
 
 appeal will generally lie only from final jndgment, 268. 
 
 APPEAL IN TERM, 
 
 generally, 246. 
 
 requisites of, 246, 247. 
 
 bond is essential to, 247, 24S, S69 n. 
 
 form of entry, 869. 
 
 form of bond, S70. 
 
 APPEAL BOND, 
 
 is essential to appeal in term, 246, 248, S69, n. 
 penalty must be fixed and surety named during term, 246. 
 must be filed and approved in time, 246, 2 17. 
 failure to file, waiver of, 249, 376. 
 is not essential to appeal after term, 250. 
 
 in cases involving matters connected with decedents' estates, 267. 
 power to require, 354. 
 nature of, 355. 
 is statutory, 356. 
 
 law enters into as silent factor, 356. 
 rule where there is no jurisdiction, 357. 
 is aided by statute, 35S. 
 construction of, 359. 
 
 recovery is limited by penalty, 360, 3S3. 
 
 where no penalty is fixed, liability is to extent required by statute. 56 
 interest which accrues subsequent to execution of bond may be recov- 
 ered, 361. 
 obligation of, 362. 
 what constitutes a breach, 362. n. 1. 
 mode of executing, 363. 
 form and substance of, 364.
 
 INDIA 
 
 [Itcfrri na s are to Sections.] 
 A PPEAL BOND— continued. 
 
 righl of appellee to require proper bond, 365. 
 
 order of trial court fixing penalty and approving is generally conclusive, 
 
 366. 
 new bond, where and how demanded. 367. 
 
 ipel of sureties, 36S. 
 approval of, 369. 
 
 informal or irregular approval, 370. 
 approval may be implied, 371. 
 effeel of approval, 372. 
 evidence of filing and approval, 373. 
 when essential to appeal, 374, 375. 
 amendment of, 377, 379. 
 
 motion to dismiss because of failure to file, 37S, 527. 
 enforcement of, 380. 
 release of sureties, 381. 
 surety's right to subrogation, 3S2. 
 measure of recovery, 383. 
 
 objections to are waived unless seasonably made, 684. 
 form of, S70. 
 
 APPEALABLE INTEREST, 
 
 what is, 133-135. 
 how shown, 160. 
 dismissal of appeal for lack of, 526. 
 
 APPEALABLE JUDGMENTS AND ORDERS, 
 final judgments, 79-81. 
 
 order directing issuance of an execution, 85, n. 1. 
 order setting aside commissioner's sale, 85. 
 order disbarring attorney, 85. 
 order removing guardian, S5. 
 judgment in action for new trial. S6. 
 judgment in suit to review, S7. 
 order refusing to set aside execution, 88. 
 order removing cause to Federal Court, 89. 
 decree in partition, 92, 93. 
 judgment on demurrer, 94. 
 order dismissing case, 94. 
 
 de< ree on cross-complaint of intervening creditor, 94. 
 judgment allowing claim against receiver. 99. 
 order authorizing receiver to borrow money, 99. 
 order appointing receiver, 100. 
 order refusing change of judge, 100. 
 order for payment of money, 101. 
 
 order directing execution of written instrument, 102, 105. 
 order for delivery of property, 103. 
 order requiring assignment of instrument, 104
 
 [ND 
 
 /,', /, rem i - are to S> ctions. 
 APPEALABLE JUDGMENTS AND ORDERS— continued. 
 
 order granting or denying injunction, io6. 
 
 order in habeas corpus case, 107. 
 
 void judgments, tio. 
 
 what are not, S1-S3. 84 n. :. SS n. 3, 91, [04. 
 
 See Interlocutory Orders. 
 APPEARANCE, 
 
 without objection operates as a waiver of bond. 376. 
 
 may operate as waiver of motion to dismi.-s appeal. 519. 
 
 general, after a discontinuance, operates as a waiver, 677 
 
 general, waives objections to jurisdiction of person, 677. 
 
 general, when it may be withdrawn, 677. 
 
 what is general and what special, 677. 
 
 special does not waive objections to jurisdiction, 678. 
 
 APPELLANT, 
 
 See Parties 
 
 APPELLATE COURT, 
 
 has appellate jurisdiction over prosecutions for misdemeanors, 41. 
 inherent powers of, 45. 
 
 has onlv jurisdiction taken from Supreme Court, 47. 
 has no jurisdiction over constitutional questions, 49. 50. n. 2. 
 classes of cases over which it has jurisdiction. 50. 
 
 jurisdiction over actions originating before a justice of the peace, 51-56. 
 when amount in controversy determines jurisdiction, 53-64, 55' n - '■ 
 jurisdiction in cases for recovery of money only, 57-04. 
 amount in controversy, how determined. 59-64. 
 interest not considered in determining amount, 61. 
 remittitur, effect of. 62. 
 
 counter-claim as affecting jurisdiction, 63, 64. 
 
 appellate jurisdiction over actions for recovery of personal property. I 
 value of property not material. 66. 
 
 actions between landlord and tenant, when appellate court has jurisdic- 
 tion, 40, 6S, 69. 
 appellate jurisdiction over claims against decedents' estate- 
 rules and practice of, 71. 
 
 is bound by decisions of Supreme Court. 72. 
 transfer of cases to, 73, 
 disqualification of one judge doe- not oust jurisdiction 
 
 APPELLATE JURISDICTION, 
 
 ultimate is in Supreme Court, 5, 26. 
 
 definition. 16, 20. n. 2, 21, n. 1. 
 
 criterion of, 16, n. 4. 
 
 one of review, 17. 
 
 appellate courts decide on their own. 17, n. I, 23. 
 
 obtained for one purpose i- retained for all. iS.
 
 -'-1 
 
 i\ Di:\ 
 
 A\ fen nces are to Sections.] 
 APPELLATE JURISDICTION— continued. 
 
 incidents of, 20, 22. 
 
 legal and equitable are blended into one system, 24. 
 
 territorial jurisdiction of Supreme Court, 31. 
 
 constitutional questions, 32, 49. 
 
 cases in which Supreme Court has, 35-44- 
 
 cases in which appellate court has, 35, 42,43, 47-70. 
 
 must be given by law and not merely by consent, 77. 
 
 jnment of errors is essential to, 303. 
 bond is not generally essential to, 375. 
 
 APPELLATE TRIBUNALS, 
 
 decide on their own jurisdiction, 17, n. 1. 
 
 power to frame judgments, 21. 
 
 power to enforce their orders and writs, 22. 
 
 inherent powers of, 45. 
 
 authority of decisions of, 562. 
 
 effect of their decisions, 563. 
 
 See Appellate Court; Supreme Court. 
 
 APPELLEE, 
 
 See Parties. 
 
 ARGUMENT, 
 
 application for oral, 454. 
 
 limitation of, 455. 
 
 statement of points for, 456. 
 
 interchange of points for, 457. 
 
 limitation of time allowed for, 616. 
 
 misconduct of counsel in, 671, 672. 
 
 extent and limits of what counsel may state, 671, 072. 
 
 presumption that court properly limited and restrained, 725. 
 
 ARREST OF JUDGMENT, 
 
 motion in cuts off motion for new trial, S34. 
 
 ASSIGNEE, 
 
 may he substituted as party to appeal, 133, n. 6, 137. 
 of judgment, rights and liabilities of, 5S2, n. 2. 
 
 ASSIGNMENT OF ERRORS, 
 
 office and form of, Jo<). 
 
 is the appellant's complaint. 300. 
 
 presents questions of law, 301. 
 
 should generally precede petition to amend record, 302. 
 
 is essential to complete jurisdiction, 303, 458. 
 
 must be filed within time limited for taking appeal, 303, 304, n. 2. 
 
 leave to file after time may be granted in case of fraud or accident, 304. 
 
 exceptional cases in which preliminary steps may precede assignment, 305. 
 
 specifications of error, 306, 401.
 
 INDEX. 825 
 
 [References are to Sections. 
 ASSIGNMENT OF ERRORS— continued. 
 
 specific error must be clearly designated, jo6, n. 2 
 
 statutory provisions, 307. 
 
 each specification must be complete in itself 
 
 in cases appealed from Marion Superior Court. 310. 
 
 bv whom error must be assigned, 311. 
 
 interveners, 312. 
 
 incidental and collateral issues. 313, 
 
 only injured parties c.a\ assign error, 314. 
 
 privies may assign error, 315. 
 
 can not contradict record, 316. 
 
 favorable ruling can not be assigned as error. 317. 
 
 joint assignment must generally be good as to all, 318, 401. 
 
 exception to rule as to joint assignment in case of husband and wife, 319. 
 
 curing defects in, 320. 
 
 correcting as to parties, 321. 
 
 parties must be named, 3:2. 401. 
 
 exceptions to rule requiring names of parties, 323. 
 
 groundwork of assignment, 324. 
 
 when it may be amended, 32^. 
 
 appellant is confined to the specific objections set forth, 325. 
 
 specifications may be defective because too general, 326. 
 
 meaning of rule requiring specific assignment. 327. 
 
 errors respecting jurisdiction of person, how assigned, 32S. 
 
 defective trial court process, 329. 
 
 application to trial court where process or service is defective. 330. 
 
 distinction between cases where there is no jurisdiction and where notice 
 
 is defective, 331. 
 where there is no service. 332. 
 writs running beyond term. 333. 
 where judgment is rendered by default. 334. 
 where judgment is rendered for failure to plead, 335. 
 rulings on pleadings generally, 336. 
 rulings on demurrer. 337. 
 interrogatories to parties. 33S. 
 habeas corpus cases. 339. 
 identifying ruli ilained of, 540, 
 
 objections to mode of impaneling jury, 341. 
 rulings on verdicts. 342, 343. 
 rulings on judgments, 344- 
 mode of objecting to judgments. 3 ;;. 3 [6. 
 causes for new trial not assignable, 347 
 independent specifications. 549, 550 
 specifications as to ruling on motion for new trial, 
 trial where issues of law are undecided. 352. 
 amendment of, {5 {. 
 ill-assigned errors are disregarded and demurrer is unnecessary, 401, 402.
 
 826 
 
 [NDEX. 
 
 [References ar< to Sections.] 
 
 ASSIGNMENT OF ERRORS— continued. 
 
 cross-errors, 415-424. 
 
 king complaint for firsl time on appeal, 471-475. 
 must be to entire complaint. 474. 
 form of, S7S, S79. 
 
 form of application to amend, SS4. 
 form of assignment of cross-errors, 8S5. 
 
 ATTACHMENT, 
 
 appeal will not lie from order dissolving or refusing to dissolve, Si, SS, n. 3. 
 can not be discharged by trial court after appeal. 543. 
 new trial as to issue formed upon affidavit for, S44. 
 
 AUXILIARY PROCEEDINGS, 
 
 jurisdiction of appellate tribunal over, 504, 505. 
 
 classes of, 506. 
 
 appeal must generally be pending to authorize, 507. 
 
 where no transcript has been filed, 508. 
 
 application for assistance in perfecting appeal, 509. 
 
 injunctions, 510, 512, 513. 
 
 mandamus, 511, 514-517. 
 
 prohibition, 511, 51S. 
 
 See Certiorari. 
 
 B 
 
 BILL OF EXCEPTIONS, 
 
 is necessary to appeal upon instructions, 193. 
 
 what it should contain in such case. 193. 
 
 not necessary in agreed cass, 2^2. 
 
 is necessary in case of reserved questions of law, 240. 
 
 office of, in sueh case, 241. 
 
 what it should contain in such case, 240. 241. 
 
 in criminal cases, 276, 296. 
 
 mandamus will lie to compel judge to settle and sign but not to determine 
 
 just what he shall put in it, 516. 
 trial court may grant time to file. 622. 
 definition and office of, 717. 
 duty of settling is judicial, 79S, Sio. 
 
 who must sign it where judge dies or goes out of office. 799. 
 when special judge should sign it. 799. 
 time within which it must be signed, 800. 
 time may be extended, but record must show it. Soi. 
 time of presentation to judge, S02. 
 
 time can not usually he extended by vacation order after term. S03. 
 tiled in term, what record must show. S04. 
 tiled after term, what record must show, 805.
 
 INDEX 827 
 
 A'. /. 1 1 nces are to Sections.] 
 BILL OF EXCEPTIONS— continued. 
 
 form is of little importance if it is sufficient in substance, 806. 
 
 what it should contain, generally, S07. 
 
 several exceptions may be stated in one bill. 
 
 must state tacts on which exceptions are based. S09. 
 
 imports absolute verity, 811. 
 
 how it may show error, S12. 
 
 rulings made in formation of issues, S13. 
 
 collateral motions must he brought into record by bill of exceptions. S14. 
 
 recitals in direct motions and exhibits therewith must be brought into 
 
 record by bill of exception-. 815. 
 rejected pleadings must be brought in by bill of exceptions. 816. 
 instruments generally, which are not pleadings, may be brought in by bill 
 
 of exceptions, 817. 
 making instruments part of bill by reference, 81S. 
 instruments once properly in record need not be copied in bill, S19. 
 oral evidence must be embodied in the bill, S20. 
 stenographer's report of evidence, bow made part of bill. 821, S22. 
 where all the evidence is necessary, bill must show that it contains all the 
 
 evidence given in the cause. S23. 
 general recital as to evidence does not always control. 824. 
 amendment of, S25. S26. 
 forms of, S62-S6S. 
 
 BONA FIDE PURCHASERS, 
 
 who are, 5S2. 
 
 effect of judgment of reversal on rights of, 5S2. 
 
 BOND, 
 
 is generally required to secure stay of proceedings, 37 \. 384, 3S6. 
 securing stay for one appellant gives no rights to others. 390. 
 for supersedeas, 374. 3S6. 396, 397. 
 for supersedeas, objections to may be waived. 6S4. 
 presumption of approval, 725. 
 
 See A.PPEAL BOND ; SUPERSEDEAS. 
 
 BRIEFS, 
 
 upon application for extension of time to appeal. 266. 
 
 upon application for supersedeas, 388. 
 
 definition of, 43S. 
 
 general frame of, 439. 
 
 showing the manner in which the questions arise. 
 
 should refer to the record where rulings are shown. 440 
 
 stating the facts. 4)1. 442. 
 
 correcting erroneous statements of opposite party, 443, 
 
 making the points. 444. 
 
 showing rulings to be wrong. 445. 
 
 stating propositions of law. 446.
 
 828 INDEX. 
 
 [References are to Sections.] 
 BRIEFS— continued. 
 
 citing authorities, 447. 
 
 waiver of preliminary motions by filing, 44S. 
 
 lime within which appellant must file, 449. 
 
 on cross-errors, time for filing, 450. 
 
 appellee's brief, time for filing, 451. 
 
 extension of time for filing, 452. 
 
 interchange of, 453, n. 2. 
 
 on motion to reinstate appeal, 540. 
 
 c 
 
 CERTIFICATE, 
 
 of clerk to transcript, forms of, S76, 877. 
 
 CERTIORARI, 
 
 when required to correct record, 216. 
 
 dutv of counsel to apply for, but court may order it of its own motion, 217 
 
 who may obtain, 21 8. 
 
 time of making application for, 219. 
 
 requisites of application, 220. 
 
 notice of application, 221. 
 
 submission and hearing of application, 222. 
 
 to correct defective record in criminal case, 2S1. 
 
 jurisdiction of appellate tribunals over, 506. 
 
 substituted pleadings may be brought into record on appeal by, 596. 
 
 CHALLENGING JURORS, 
 
 discretionary power of trial court, 613. 
 
 objections must be promptly made, 613, n. 2. 
 
 where challenge for cause is sustained the presumption is that the juror 
 was disqualified, 613, 723. 
 
 presumption as to disqualification of person challenged and excused may- 
 be rebutted, 613, n. 
 
 examination to determine cause for challenge and expediency of per- 
 emptory challenge, 613. 
 
 disqualification from knowledge by rumors, newspaper reports and by 
 prejudice, 614, n. 2. 
 
 presumption that court allowed full number of peremptory challenges, 723. 
 
 objections must be specific, 778. 
 
 form of bill of exceptions, 866. 
 
 CHANGE OF VENUE, 
 
 where improperly obtained by a party he can not avail himself of the 
 
 error, 627. 
 error in refusing may be cured by subsequently granting it, 70S. 
 when presumed to have been waived, 725. 
 presumed to have been rightfully granted or denied, 725.
 
 INDEX. 829 
 
 [JRi ferences arc to Sections.] 
 CHANGE OF VENUE— continued. 
 
 application and affidavit for, with ruling and exception, are brought 
 
 record by l>ill of exceptions, Si 7. 
 error in granting or refusing i^ assignable as cause for new trial, 
 
 CIVIL ACTION, 
 definition, J52. 
 modes of appeal in, 245—253. 
 what may be appealed as, 253. 
 
 COLLATERAL ATTACK, 
 
 when it may he made upon a judgment, 330, n. 1, 332 
 COLLATERAL MATTERS, 
 
 when not covered by appeal, 545. 
 COLLATERAL MOTIONS, 
 
 are not part of record proper, 190, 191. 
 
 must he brought into record by bill of exceptions or special order, S14. 
 
 COMPLAINT, 
 
 may be attacked for first time on appeal. .(71. 
 
 assignment of errors questions its sufficiency, 472, 473, n. 1. 
 
 what defects are fatal, 473. 
 
 one good paragraph will save it where it is first attacked on appeal, 474. 
 
 assignment of errors on appeal can only question complaint as a whole, 
 
 474- 
 in case of default, 475. 
 
 CONCLUSIONS OF LAW, 
 
 when defects in special finding can not be reached by exceptions to, 7 
 
 exceptions to, when proper, 767. 
 
 should be excepted to at time, 793. 
 
 can not he questioned by motion for new trial, 793. 
 
 how error should he specified, 794. 
 
 CONSTITUTIONAL QUESTIONS. 
 
 supreme court has exclusive appellate jurisdiction over, 32, 49. 
 
 how they must appear, ^- 
 
 when they can he first made on appeal, 492, 493. 
 
 CONTEST OF ELECTIONS. 
 
 appellate jurisdiction is in Supreme Court, 44. 
 CONTEST OF WILLS. 
 
 appellate jurisdiction is in Supreme Court, 44. 
 CONTINUANCE, 
 
 change in ruling may entitle party to, 696, 697. 
 
 party entitled to it should make the necessary request, I 
 
 error in refusing is cured by subsequently granting it. 70S.
 
 830 [NDEX. 
 
 \References </>■,■ to Set !it>>ts.\ 
 
 CON T I N U A N C E— continued. 
 
 presumption that order granting or denying was proper, ~i^. 
 affidavits for are brought into record by bill of exceptions, S17. 
 error in grunting or refusing is assignable as cause for new trial, 84S. 
 
 CO-PARTIES, 
 
 notice to, effects a severance, 13S, n. 1. 
 
 meaning of term, ijo. ,, 
 
 declining to appeal, when they must be notified, 139. 
 
 notice to, is jurisdictional, 144. 
 
 failure to notify, waiver of objection, 145, 146. 
 
 may become adversaries, how, 156. 
 
 who refuse to join, effect of appeal upon, 163. 
 
 service of notice on, 1S1. 
 
 form of notice to, 874. 
 
 COSTS, 
 
 can not be retaxed after appeal involving question of, 543. 
 generally go against party who enters remittitur, 573. 
 reversal generally carries costs from the first error, 5S1. 
 stenographer's fees are part of, 5S1, n. 3. 
 cost of transcript is part of costs of appeal, 5S1, n. 3. 
 presumed to have been properly taxed, 725. 
 
 affidavits and motions in regard to are brought into record by bill of ex- 
 ceptions, S17. 
 
 COUNSEL, 
 
 what he may state in argument, 671, 672. 
 
 his misconduct is, in effect, the misconduct of his client, 672. 
 
 improper remarks by, 672. 
 
 when his misconduct is cause for reversal, 672. 
 
 can not read from legal treatises, 672. 
 
 presumption that court did its duty in restraining argument and preventing 
 
 misconduct of, 725. 
 refusal of court to prevent or correct misconduct of, cause for new trial, S48. 
 
 COUNTER-CLAIM, 
 
 as affecting jurisdiction, 63, 64. 
 may be first attacked on appeal, 477, 47S. 
 
 gives defendant who pleads it the right to open and close, 671, n. 1, on p. 
 616. 
 
 COl RTS, 
 
 can not be deprived of constitutional jurisdiction, 2. 
 
 only judicial duties can be imposed, 3. 
 
 not recpiired to give opinions to legislature, 4. 
 
 inferior, legislature may establish, 2. n. 3. 
 
 inherent powers of, 6, 45. 
 
 power to frame rules, 7.
 
 INDEX. 
 
 [References ii><- to Si • tions.] 
 COURTS— continued. 
 
 power to amplify jurisdiction, 9. 
 power to supply statutory omissions, 11. 
 
 presumption as to organization, 71 \. 
 
 CRIMINAL CASES, 
 appeals in, 269-298. 
 
 See Appeal in Criminal Cases. 
 
 CROSS-COMPLAINT, 
 
 may be first attacked on appeal, 477. 
 
 CROSS-ERRORS, 
 
 may be assigned, 415. 
 
 when necessary to assign, 416. 
 
 nature of assignment of, 417. 
 
 object of assignment of, 41S. 
 
 effect of assignment of, 419. 
 
 foundation for assignment must be laid in trial court, 42c. 
 
 transcript in case of, 421. 
 
 notice of assignment of, 422. 
 
 time within which they must be assigned, 423. 
 
 answer to assignment is unnecessary, 424. 
 
 briefs on, time for filing, 450. 
 
 form of assignment of, SS5. 
 
 CROSS-EXAMINATION, 
 
 limit of is largely discretionary with court, 618. 
 latitude should be allowed upon, 618, n. 1. 
 
 offer of evidence that witness is expected to give after objection is sus- 
 tained is unnecessary, 747. 
 
 CURING ERROR, 
 
 nature of the power to cure error, 693. 
 limitations upon the power, 694. 
 
 power to cure error can not be arbitrarily exercised, 695. 
 exercise of the power may entitle party to a postponement, 696, 697. 
 rulings on motions or demurrers may lie corrected any time before issues 
 are closed, 697. 
 
 how error in ruling on motions or demurrers may be cured, 007. 
 
 error in admitting evidence may be cured by other evidence making it 
 
 competent, 69S. 
 proving same facts by competent evidence may cure error in admitting 
 
 incompetent evidence, 6 
 error in admitting incompetent evidence may he cured by its withdrawal, 
 
 700. 
 error in admitting incompetent evidence may be cured by instruction to 
 
 disregard it, 701.
 
 832 INDEX. 
 
 A\ ft fences art to Sections.] 
 CURING ERROR— continued. 
 
 exceptional cases, in which error is not cured by instruction to disregard 
 evidence, 7<>j. 
 
 error in admitting evidence is cured by sustaining motion to strike it out, 
 
 7°3< 
 voluntary withdrawal of evidence will not always cure error in admitting 
 
 it, 703, 704. 
 
 errors in instructions may be cured by withdrawing or correcting them. 705. 
 
 erroneous instruction is not cured by merely giving another contradicting 
 it, 705. 
 
 error in refusing a specific instruction is not cured by merely giving a 
 general abstract instruction on the subject, 706. 
 
 subsequently admitting evidence wrongly excluded cures the error. 707. 
 
 error in excluding evidence is not cured by admitting evidence of less pro- 
 bative force, 707. 
 
 error in refusing continuance is cured by subsequently granting it, 708. 
 
 error in refusing change of venue is cured by subsequently granting it, 70S. 
 
 error in refusing order of examination of party is cured by subsequently 
 ordering it, 708. 
 
 error in directing general and special verdict instead of special only is 
 cured where judgment is on special alone, 70S. 
 
 D 
 
 DAMAGES. 
 
 when appellate tribunal can direct the amount to be awarded, 571, 572. 
 amount of is generally a question for the jury, 572, n. 1. 
 failure to award nominal, when harmless, 636. 
 error in assessment of, how questioned, S55, S56. 
 
 DEATH, 
 
 of partv, substitution of heirs or legal representative, 137. 
 
 of party before appeal, effect of, [65. 
 
 of party after appeal, effect of, 166. 
 
 of one of several appellants, effect of, 107. 
 
 abatement by, 169. 
 
 DECEDENTS' ESTATES, 
 
 appellate court has jurisdiction over appeals in cases of claims against, 70. 
 appeals in matters connected with, 245-268. 
 
 DEFAULT, 
 
 record in case of, 193. 
 
 relief must be first sought in trial court where process has been served, 
 
 3-9-334- 
 when question may be first made on appeal, 330-332, 334. 7S4. 
 ailure to plead, objections must be made in trial court. 335.
 
 INDEX. 833 
 
 References are to Sections. 
 DEFAULT— continued. 
 
 rule as to sufficiency of complaint first attacked on appeal in case of de- 
 fault, 475. 
 no pre. sumption of jurisdiction in case of, 710, 7S4. 
 presumption that judgment was properly entered in open court, 725. 
 
 DEMURRER, 
 
 assignment of errors as to rulings on, 327, 357. 
 
 ruling on, is not cause for new trial, 348. 
 
 to assignment of errors, 401, 402. 
 
 to special plea, 413. 
 
 erroneous rulings on, when harmless, 637, 666, 669. 
 
 resorting to evidence to determine whether ruling on is harmless, 63S. 
 
 when error in ruling upon is prejudicial, 666-669. 
 
 record will he examined to determine whether error in ruling upon is 
 
 prejudicial, 666, 667. 
 where ruling upon is excepted to and error is effectively saved, no further 
 
 steps need be taken to make it available, 66S. 
 failure to demur, waiver of objections, 6S1. 
 failure to demand a ruling waives it, 6S2. 
 is waived by answering before ruling on, 6S2. 
 answering or amending pleading after ruling on demurrer waives it, 6S3. 
 
 DEMURRER TO THE EVIDENCE, 
 
 when it lies, 685. 
 
 who may demur, 6S5 and n. 
 
 what evidence can be considered upon, 685, n. 
 
 what it admits, 685, n., 6S6, n. 2. 
 
 practice upon, 6S5, n. 
 
 mode of saving question as to ruling on, 6S5, n. 
 
 joinder in, waives jury trial, 6S5. 
 
 ruling on, is waived by introducing evidence thereafter, 6S6. 
 
 what objections to pleadings are waived by, 6SS. 
 
 objections to competency of evidence are waived by, 6S9. 
 
 motion for new trial, when not prevented by, 6S9. 
 
 DEPOSITIONS, 
 
 presumptions as to, 721. 
 
 must be brought into record by bill of exceptions, 817, n, 1 on p. 7<"m 
 
 DILIGENCE, 
 
 required of party who seeks to appeal after statutory period, 115. 
 must be shown by party who seeks new trial on ground ol newly discoi 
 ered evidence, S57. 
 
 DISABILITIES, 
 
 appeal by parties who have been under, I30, 
 
 53
 
 834 [NDEX. 
 
 [References are to Sections.} 
 DISCRETIONARY POWER OF APPELLATE TRIBUNAL, 
 to grant leave to withdraw transcript, 536. 
 to reinstate appeal, 537. 
 
 to direct a specific judgment or order a new trial, 567-569. 
 to compel a party to enter a remittitur or suffer a reversal, 570-573. 
 as to costs, 581. 
 
 DISCRETIONARY POWER OF TRIAL COURT, 
 
 definition of judicial discretion, 597. 
 
 it- exercise is not subject to review, 59S, 600. 
 
 it- scope, 599. 
 
 its abuse may be prejudicial error, 600. 
 
 absolute and limited discretion, 601. 
 
 proceedings may be reviewed where it is abused or its limits are trans- 
 cended, 602, 603. 
 
 how abuse of must be shown, 604. 
 
 burden is upon complaining party to show abuse, 604. 
 
 failure to exercise may be available error, 605. 
 
 court may designate time for filing pleadings, 606. 
 
 court may allow amendments, 607. 
 
 denying amendment may be available error, 608. 
 
 denying negligent party leave to amend is not error, 609. 
 
 when court can allow amendments after verdict, 610. 
 
 amendment can not be made to remedy entire failure of proof, 611. 
 
 as to calling a jury, 612. 
 
 as to impaneling a jury and determining the cpualifications of jurors, 613, 
 614. 
 
 as to mode of trial in equity cases, 615. 
 
 as to time and conduct of trial, 616. 
 
 as to order of introducing evidence, 617. 
 
 as to recalling witnesses, 617. 
 
 as to examination of witnesses, 618. 
 
 as to ordering a view, 619. 
 
 as to ordering examination of the person, 620. 
 
 as to discharge of jury before verdict, 621. 
 
 a- to granting time to file bill of exceptions, 622. 
 
 its abuse may be cause for new trial, 850. 
 
 DISMISSAL, 
 
 of appeal, motion and notice are necessary, 376, 533. 
 
 motion for because of defective bond, 37S. 
 
 of appeal, when failure to file bond is cause for, 400, 527. 
 
 of appeal, motion tor is waived bv common joinder, 406, 519. 
 
 of appeal, motion for because of failure to appeal in time, 40S, 524. 
 
 motion to dismiss is generallj' a preliminary motion to be made before 
 
 general appearance, 519. 
 court may dismiss appeal on its own motion, 520. 
 -eeond motion to dismiss not generally entertained, 521.
 
 INDEX. 835 
 
 1\\ ferences arc to Sections .] 
 DISMISSAL— continued. 
 
 merits not considered on motion to dismiss, 522. 
 
 for failure to comply with rules of court, 523. 
 
 for failure to give notice, 525. 
 
 for lack of appealable interest, 526. 
 
 for attempting to prosecute two appeals at same time, 528. 
 
 of appeal from judgment rendered in obedience to mandate of appellate 
 
 tribunal, 529. 
 because appellant has brought suit to review, 530. 
 parties to motion for dismissal of appeal, 531. 
 requisites of motion for, 532. 
 appeal may be dismissed as to one party without affecting rights of others, 
 
 532, n. 2. 
 notice of motion to dismiss appeal, 533. 
 by appellant, 534. 
 effect of, 535. 
 
 leave may be given to withdraw transcript after dismissal, 536. 
 form of bill of exceptions on motion to dismiss appeal, S64. 
 
 DIVORCE, 
 
 alimony can not be allowed pending appeal from decree in divorce ca^e, 
 543- 
 
 DOCKETING APPEALS, 
 
 order of, 45S. 
 
 transcript and assignment of errors must be filed first, 458—460. 
 exceptions to rule requiring assignment of errors before cause will be 
 docketed, 459. 
 
 E 
 
 EFFECT OF APPEAL, 
 
 appeal removes case from jurisdiction of trial court, 541, 543. 
 
 where appeal operates as supersedeas, it prevents enforcement of trial 
 
 court judgment, 541. 
 appeal from interlocutory order does not entirely oust jurisdiction of trial 
 
 court, 542. 
 appeal generally brings up entire case, 544. 
 
 collateral and independent matters are not affected by appeal, ^45. 
 judgment of trial court remains unaffected except that it may be stayed, 
 
 546. 
 action on judgment is not barred by appeal, 547. 
 appeal does not prevent trial court from amending and correcting record, 
 
 54 s - 
 appeal prevents trial court from making an entirely new record, 549.
 
 336 INDEX. 
 
 [References arc to Sections.] 
 ELECTION, 
 
 parties are bound by, 149, 496. 
 
 may bar appeal, 149, 409, 496. 
 
 to enter remittitur or suffer reversal, 570, 572. 
 
 of remedies, prejudicial error in, 654-658. 
 
 EQUITY CASES, 
 
 jurisdiction of Supreme Court over, 37. 
 what are, 38, 39. 
 
 ERROR, 
 
 waiver of, in criminal cases, 290. 
 prejudicial, must be shown by record, 292. 
 joinder in, 404, 406. 
 
 release of must be specially pleaded, 40S. 
 cross errors, 415. 
 
 assignment of cross-errors, 416-424. 
 definition, 587, 589, n. 1. 
 
 erroneous rulings may be sufficient to overthrow judgment on direct at- 
 tack, but not on collateral attack, 5SS. 
 ruling right when made does not constitute, 5S9 
 ultimate ruling may correct intermediate mistakes, 590, 633. 
 in ruling asserting a wrong theory, 590, 591. 
 must be shown by record, 592, 632. 
 
 ruling not probably prejudicial is not available, 593, 632. 
 when presumed to be prejudicial, 594, 632. 
 rulings upon pleadings afterwards amended can not be assigned as error, 
 
 595- 
 pleadings upon which it is alleged must be in the record, 596. 
 
 in the exercise of discretionary powers, 603-622. 
 
 distinction between error and procedure necessary to make it available, 
 
 623. 
 
 steps necessary to make it available, 624. 
 
 conduct of party may preclude him from making it available, 625. 
 
 invited error, 626-630. 
 
 harmless error, 631-652. 
 
 prejudicial error, 631, 632, 653-673. 
 
 available error does not exist where there is a waiver, 674. 
 
 when and how cured, 693-70S. 
 
 how it must be made to appear in bill of exceptions, S12. 
 
 of law occurring on the trial is cause for new trial, S53. 
 
 See Assignment of Ijuiors ; Cross-Errors. 
 
 ESTOPPEL, 
 
 suit for review ma)' estop party from appealing, 149. 
 
 acceptance of benefit of judgment may estop party from appealing, 150. 
 
 voluntary release will estop party from appealing, 150. 
 
 collecting by execution may estop party from appealing, 150, n. 2. 

 
 INDEX. 837 
 
 [References are to Sections. \ 
 ESTOPPEL— continued. 
 
 exceptions to rule, 151. 
 
 payment by defendant does not estop him from appealing, 152. 
 of sureties on appeal bond, 368. 
 is foundation of doctrine of invited error, 630. 
 See Theory of the C vsi . 
 EVIDENCE, 
 
 order of introduction is largely in discretion of trial court, 617. 
 
 manner of eliciting is largely in discretion of trial court, 61S. 
 
 of fact admitted in pleadings is unnecessary, 627. 
 
 opening the door to incompetent, 62S. 
 
 effect of introducing incompetent, 627, 629. 
 
 a party can not gain any advantage from the rejection of competent evi- 
 dence at his own procurement, 630. 
 
 admission of incompetent, court can not say that error was harmles- 
 
 when it may be resorted to in order to determine whether erroneous rul- 
 ing on demurrer was harmless, 638. 
 
 when rulings admitting or excluding are harmless, 641. 
 
 errors in instructions may be harmless where verdict is right on, 643. 
 
 when ridings admitting or excluding are prejudicial, 670. 
 
 effect of introducing after ruling on demurrer to evidence, 686. 
 
 effect of introducing after motion for verdict in favor of moving party, 6S7. 
 
 waiver of objections to by demurrer to evidence, 689. 
 
 error in admitting may be cured by supplementary evidence making it 
 competent, 69S. 
 
 proving same facts by competent evidence may cure error in admitting 
 incompetent, 699. 
 
 error in admitting may be cured by withdrawing it, 700. 
 
 error in admitting may sometimes be cured by instruction to disregard it. 
 700-702, and notes. 
 
 sustaining motion to strike out may cure error in admitting incompetent. 
 
 7°3- 
 when party can not withdraw over objection, 704. 
 subsequently admitting evidence may cure error in excluding it, 707. 
 presumption that rulings on were correct, 721. 
 inspection of documentary, notice to produce, 740, 741. 
 offers of oral, 742-746. 
 
 offer not required on cross-examination, 747. 
 offer of documentary evidence, 74S. 
 objections to, how made, 774, 775, 779-7S1. 
 written, may be brought into bill of exceptions by reference, 
 oral, must be embodied in bill of exceptions, S20. 
 
 stenographer's notes of, how made part of bill of exceptions, S21, 822. 
 bill of exceptions must show that it contains all the evidence given in the 
 
 cause, 823. 
 verdict or finding not sustained by, cause for new trial, 854. 
 newly discovered, cause for new trial, 857.
 
 [NDEX. 
 
 [References are to Sections.] 
 
 EXAMINATION, 
 
 ofwitm 743 — 749> 812, n - '■ 
 
 of person, 620. 
 
 of party, error in refusing may be cured by subsequently granting it, 708. 
 
 EXCEPTION, 
 
 to decision in agreed case is necessary, 225. 
 
 to ruling in case of reserved questions of law i^ necessary, 239. 
 
 to specific ruling is necessary in criminal cases, 277. 293. 296. 
 
 record must show, 293. 
 
 is necessary to make error available. (124. 
 
 to conclusions of law, 766, 7(17. 
 
 definition and office of, 783. 
 
 when required, generally, 784. 
 
 must be taken at time ruling is made, 785, 786, 
 
 time may be given to reduce it to writing, 785. 
 
 must be addressed to specific ruling, 7S7. 
 
 joint, must be well taken as to all or it will be unavailing, 788. 
 
 should not be taken to several rulings in gross, 789. 
 
 party must rely on his own, 790. 
 
 to instructions, how taken, 791, 792. 
 
 to conclusions of law, when and how taken, 793, 794. 
 
 to ruling on motion for new trial, 795. 
 
 to judgment, not proper as a rule, 796. 
 
 how stated and shown in bill, S07, S08. 
 
 See Bill of Exceptions. 
 EXTENSION OF TIME FOR APPEAL, 
 when granted, 112-117. 
 
 in cases involving matters connected with decedents' estates. 261, 263-266. 
 in criminal cases, 284, 285. 
 
 F 
 
 FELONY, PROSECUTIONS FOR, 
 
 appellate jurisdiction is in Supreme Court, 41. 
 FINAL JUDGMENT, 
 
 what is, 81-83, 85-95. 
 
 requisites of, 85. 
 
 time for appealing begins to run after, 1 19. 
 
 duration of stay upon appeal from, 394. 
 
 judgment on appeal is, 585. 
 
 See Judgments. 
 FORECLOSURE, 
 
 cases are equity cases, for Supreme Court, 39. 
 sale, right of purchaser to appeal, 137.
 
 INDEX. 839 
 
 {References arc to Sections.] 
 FORMS, 
 
 agreed case, 86 1. 
 
 appeal bond, 870. 
 
 appeal In term, entry, 869. 
 
 application for leave to amend the assignment of errors, 884. 
 
 assignment of errors, ordinary form, 87S. 
 
 assignment of errors, appeal from Marion Superior Court, 879. 
 
 assignment of cross-errors, SS5. 
 
 bill of exceptions, challenge of juror, 866. 
 
 bill of exceptions, misconduct of juror, S6S. 
 
 hill of exceptions, motion to dismiss, 864. 
 
 bill of exceptions, motion to make specific, S65. 
 
 bill of exceptions, overruling motion for new trial, 867. 
 
 bill of exceptions, questions of law arising on instructions, S63. 
 
 bill of exceptions, reserved questions of law, 862. 
 
 caption, title of cause, signature, 860. 
 
 common joinder, 8S3. 
 
 joinder in error, 8S3. 
 
 motion to dismiss, acceptance of payment, 8S1. 
 
 motion to dismiss, failure to notice co-parties, S90. 
 
 motion to dismiss, failure to perfect appeal in time, SS2. 
 
 motion to modify mandate, 894. 
 
 motion to reinstate, 892. 
 
 motion to vacate supersedeas, S90. 
 
 notice, to clerk, 872. 
 
 notice, of motion, S92. 
 
 notice, to co-party, S74. 
 
 notice, to party, 871. 
 
 petition to advance, matter of private concern, SSS. 
 
 petition to advance, matter of public interest, 
 
 petition for certiorari, omission of part of record, 8S6. 
 
 petition for certiorari, change of record nunc fro tunc ^~ . 
 
 petition for rehearing, 893. 
 
 praecipe for transcript, S73. 
 
 transcript, certificate where entire record is ordered, 
 
 transcript, certificate where part oi record is ordered. 877. 
 
 transcript, formal parts, S75. 
 
 FRAUD, 
 
 relief against, when partv may be allowed to appeal after statutory time, 
 
 112. 
 as cause for permitting assignment of errors to be filed after time, 304. 
 may be cause for setting aside a supersedeas, 399. 
 may be cause for permitting party to withdraw general appearance, 678.
 
 S40 INDEX. 
 
 A'- r< rences are to Sections.] 
 
 H 
 
 HABEAS CORPUS, 
 
 appellate jurisdiction is in Supreme Court, 41. 
 appeal lies from interlocutory orders, 107. 
 specifications of error in cases of, 339. 
 
 HARMLESS ERROR, 
 
 meaning of the term, 631. 
 
 is generally one concerning procedure and not affecting primarv rights . 
 
 631. 
 error not shown to be probably prejudicial is harmless, (152. 
 wrong mode of procedure which reaches right result is generally harmless, 
 
 limitations of rule that errors are harmless where right result is reached,. 
 
 6 34- 
 uninfluential errors are harmless, 635. 
 
 failure to assess nominal damages is generally harmless error. 636. 
 when failure to assess nominal damages is not harmless, 636. 
 error in overruling a demurrer to a bad paragraph of complaint may be 
 
 harmless where the judgment rests on good paragraphs, 637. 
 error in sustaining demurrer to one of several paragraphs of answer may 
 
 be harmless, 637. 
 other harmless rulings on demurrer, 637. 
 when evidence may be resorted to in order to determine whether ruling on 
 
 demurrer is harmless, 63S. 
 when rulings on motions to strike out or reject pleadings are harmless, 639. 
 pleadings defective merely in form will be deemed on appeal to have been 
 
 amended, 640. 
 when rulings admitting or excluding evidence are harmless, 641. 
 when errors in instructions are harmless, 642-64S. 
 when rulings in selecting and impaneling jury are harmless, 649. 
 when misconduct of juror is harmless, 650. 
 
 when rulings in regard to special interrogatories are harmless, 651. 
 when rulings upon verdicts are harmless, 652. 
 
 HEARING APPEALS, 
 
 order of, 461. 
 
 i nuri may change order of, 462. 
 
 advancement, 463. 
 
 can not be advanced by mere agreement of parties, 404. 
 
 application for advancement, 465. 
 
 appeal must be submitted before advancement, 466. 
 
 notice of application to advance, 467. 
 
 motion to advance, hearing and question for decisions on, 46S, 469. 
 
 forms of petition to advance, S88, SS9.
 
 INDEX. 841 
 
 [References are (n Sections.] 
 HEIRS, 
 
 may be substituted as parties to appeal, 137. 
 
 should unite with personal representative in appeal, when, 16S. 
 
 appealable interest of, 168. 
 
 HUSBAND AND WIFE, 
 
 joint assignment of errors good as to wife is good as to both, 319. 
 
 INCIDENTS, 
 
 go with the principal, 36, 40, 4S. 
 INDEPENDENT SPECIFICATIONS OF ERROR, 
 
 when proper, 338, 349, 350. 
 INDICTMENT. 
 
 when it may be first attacked on appeal, 488. 
 INHERENT POWERS, 
 
 of constitutional courts, 6. 
 
 of Supreme and Appellate Court. 45. 
 
 of appellate tribunals to control inferior courts 514. n. 1. 
 
 of appellate tribunal to reinstate appeal, 537. 
 
 INJUNCTION, 
 
 appellate tribunal may grant in aid of its appellate jurisdiction. 506. 510, 512. 
 a verified petition, notice and bond are required, 513. 
 
 can not be granted by trial court after final judgment refusing it and ap- 
 peal therefrom, 543. 
 
 INSPECTION, 
 
 is discretionary with court. 619. 
 
 of instructions, request for, 734. 
 
 of documentary evidence. 740. 
 
 reasonable notice must generally be given to produce document for, 740. 
 
 when notice is not required, 741. 
 
 INSTRUCTIONS. 
 
 appeal upon, 193. 
 
 should be clearly designated and specified. 401. 
 
 given at request of party can not be complained of by him. 626. 
 
 a party who asks oral instructions can not complain because they were 
 not written, 627. 
 
 a partv who asks instructions on a certain theory can not complain be- 
 cause the court gave similar instructions at request o\ his adversary. 627. 
 
 a party who asks instructions that certain tacts are immaterial invites the 
 court to so treat them, 627. 
 
 errors in, when harmless, 642-64S.
 
 842 
 
 INDEX. 
 
 [References are to Sections.] . 
 INSTRUCTIONS— continued. 
 
 irrelevant, are generally harmless, 642. 
 
 verbal inaccuracies in, when harmless, 644. 
 
 are generally unnecessary in equity cases, 646. 
 
 incomplete, when harmless. 647. 
 
 construction on appeal, 648. 
 
 to disregard evidence may cure error in admitting it, 701. 
 
 to disregard evidence will not always cure error in admitting it, 702. 
 
 errors in may be cured by withdrawing or correcting them, 705. 
 
 erroneous are not cured by merely giving others contradicting them, 705. 
 
 when error in refusing is cured by giving others. 706. 
 
 presumption that correct were given on all materiahpoints, 722. 
 
 presumption that they were written, 725. 
 
 request for should be made in writing before argument, 733, 735, 736. 
 
 request for inspection of, 734. 
 
 may he read to jury by counsel, when, 734, n. 5. 
 
 should be prepared and submitted to court before argument, 735, 736. 
 
 exceptions to, 791. 
 
 how made part of record, 792, 817, n. 1, on p. 769. 
 
 noting exceptions to. 792. 
 
 form of bill of exceptions where questions of law arises on, 863. 
 
 INTEREST, 
 
 after judgment not considered on question of jurisdiction, 61. 
 may be recovered in suit on appeal bond, 361. 
 
 INTERLOCUTORY ORDERS, 
 
 appeal will not generally lie from, 80, 81. 
 
 ruling on demurrer. Si. 
 
 ruling on motion to quash, Si. 
 
 ruling suppressing depositions, 81. 
 
 conclusions of law on special finding, Si. 
 
 orders setting aside former orders, Si. 
 
 orders as to admission of parties, Si, 84, n. 2. SS, n. 3. 
 
 orders dissolving or refusing to dissolve attachment, Si, SS, n. 3. 
 
 orders for guardian to report, S4, n. 2. 
 
 orders respecting time of trial and place on calendar. Si, 84, n. 2. 
 
 order disposing of part of ease, 84, n. 2. 
 
 order for inspection of books or papers, 104. 
 
 when appeal will lie from, 100-107. 
 
 effect of appeal from, 10S. 
 
 mode of appealing from, 109. 
 
 in matters connected with decedents' estates. 229. 
 
 upon appeals from. 395, 
 appeal from docs not completely oust jurisdiction of trial court, 542. 
 
 INTERROGATORIES, 
 
 special, motion for judgment on, 327.
 
 INDEX. 843 
 
 [References are to Sections.] 
 INTERROGATORIES— contin tied. 
 
 to parties, rulings on should he specified as independent errors, 33S. 
 
 special, when refusal to submit is harmless error, 651. 
 
 special, when immaterial are submitted the error is harmless, 651. 
 
 refusal to submit to jury, when prejudicial error, 673. 
 
 when the}' may be withdrawn, 673, 730. 
 
 when jury can answer that there is no evidence, 673. 
 
 when answers are not specific party should move to recommit, 691. 
 
 must be expressly recpiested by party who desires their submission. 737. 
 
 motion for judgment on, 752. 
 
 question as to right to judgment on answers of jury to, can not be raised 
 
 by motion for a new trial, S47. 
 refusal of court to submit is cause for new trial, S47. 
 
 INTERVENORS, 
 
 when they may appeal and assign error, 312. 
 INVITED ERROR, 
 
 distinction between error and procedure necessary to make it available, 623. 
 
 steps necessary to make error available. 024. 
 
 conduct of party may affect right to make error available. 625. 
 
 party who procures erroneous ruling can not make it available, 626. 
 
 implied invitation to rule erroneously, 627. 
 
 opening door to incompetent evidence, 62S. 
 
 effect of incompetent evidence upon party who introduces it. 629. 
 
 doctrine of, is founded on estoppel, 630. 
 
 ISSUE, 
 
 trial without, 352, 682. 
 
 trial upon immaterial, party who tenders it can not complain. 627. 
 
 wrong ruling on immaterial issue is generally harmless, 035. 
 
 presumption that judgment is within, 719. 
 
 rulings made in formation of are not rulings concerning conduct of trial. 
 
 and leave should be obtained at the time to reduce to writing exceptions 
 
 thereto, 813. 
 
 J 
 
 JOINDER IN ERROR, 
 
 form and substance of, 404. 
 common joinder admits record, 405. 
 waiver by common joinder, 406. 
 form of, SS3. 
 
 JOINT PARTIES, 
 
 should all be parties to appeal where judgment is joint, 13S. 
 
 See P \k ties. 
 JUDGE, 
 
 presumptions in favor of, 714. 
 pro tempore. 714.
 
 sll INDEX. 
 
 [References are to Sections. _, 
 
 | l' 1 )( rE — continued. 
 
 change of, 714. 
 
 must rule when properly requested, 727. 
 
 duty to sign and settle bill of exceptions, 798, 799, 810. 
 
 See Presumptions; Trial Court. 
 
 JUDGMENTS, 
 
 power of appellate courts to frame, 21. 
 
 appeal lies, as a general rule, only from final, 79, So. 
 
 what are final, 81-95. 
 
 difference between intermediate decisions and final judgment, S2. 
 
 final judgment disposes of entire case, 83. 
 
 requisites of a final judgment, S5. 
 
 in actions for new trial, appeal from, 86. 
 
 in suits for review, appeal from, 87. 
 
 setting aside executions are final, 88. 
 
 ordering or refusing to order removal of case to Federal Court, 89- 
 
 final, must determine material issues, 90. 
 
 final, must determine entire case before court, 91. 
 
 exceptions to rule requiring determination of entire case. 95, 99 
 
 may be final although orders are required for their enforcement, 92. 
 
 in partition proceedings, appeal from, 92. 93. 
 
 form of, not important, in determining whether final or not, 94. 
 
 record must show final judgment or appeal will be dismissed, 96. 
 
 void, appeals will lie from, no, 588, n. 1. 
 
 are not vacated by defendant appealing in criminal cases, 297. 
 
 objections to. when and how presented, 344-346. 
 
 effect of supersedeas upon self-executing, 392, 393. 
 
 duration of stay upon appeals from, 394, 395. 
 
 on pleadings, 482. 
 
 mandamus will lie to compel signing and entry of, 516, n. 2. 
 
 aic effective notwithstanding appeal, 546. 
 
 actions upon are not barred by appeal, 547. 
 
 \ i.iit and \ oidable, 5SS, n. 1. 
 
 presumptions in favor of, 709. 712, 71S, 719, 725. 
 
 on pleadings, motion tor, 751. 
 
 nswers to special interrogatories, motion for. 7^2 
 on special verdict, motion for, 753-756. 
 
 where special finding is entirely outside the issues, motion for. 767. 
 motions to modify or correct, where judgment does not follow finding or 
 
 verdict, 768. 
 how questioned, 700. 8 (.6. 
 
 itions for mav he brought into record by hill of exceptions. Si 7. 
 motions to modify mav he brought into record by bill of exceptions, S17. 
 
 JUDGMENT OX AIM'KAL, 
 
 :• binding upon lower courts. 56?.
 
 INDEX. 845 
 
 {References are to Sections.] 
 JUDGMENT ON APPEAL — continued. 
 
 effect and characteristics of, 563. 
 remanding case to trial court, 564. 
 
 directing a specific judgment, limits of appellate tribunal's power, 565. 
 when it may determine original questions of fact, 566. 
 directing a specific judgment, 567. 
 directing a new trial, 568. 
 remanding with instructions, 569. 
 directing a remittitur. 570. 
 directing award of specific damages, 571. 
 
 directing amount of recovery where facts appear in special verdict or find- 
 ing- 57-- 
 apportioning costs, 573, 575, 581. 
 
 affirming as to some parties and reversing as to others, 574. 
 where interests are blended, 575. 
 must be obeyed by trial court, 576. 
 scope and effect of, 577. 
 is the law of the case, 57S. 
 
 form and effect of judgment of affirmance, 571). 
 form and effect of judgment of reversal, 580. 
 costs upon judgment of reversal, 5S1. 
 effect of reversal upon bona fide purchasers, 582. 
 directing restitution, 583, 584. 
 is final, 585. 
 effect of petition for rehearing, 5S6. 
 
 JUDICIAL POWER, 
 definition, 1. 
 
 is vested in courts by the constitution, 1. 
 inherent in courts, 6, 7, 45. 
 where it resides, S. 
 supreme, is in Supreme Court, 25. 
 
 JURISDICTION, 
 
 of Supreme Court, 2, 3, 5, 35-44. 
 amplifying, 9. 
 definition, 12, 499. 
 
 when presumed to exist, 12, 501, n. 2, 502. 
 consent can not confer, over subject, 13. 
 none over fictitious cases, 14. 
 appellate tribunals decide on their own, 17, n. 1. 
 cases in which appellate court has, 35, 42, 43, 47-70. 
 assignment of errors is essential to, 303. 
 of the person, assignment of errors as to ruling upon, 32S. 
 of subject, question as to, may be made at any time, 40S, n, 5, 470, 49S. 
 distinction between jurisdiction of subject and jurisdiction over subject- 
 matter of particular case, 499-503. 
 auxiliary, 504-5 iS.
 
 
 INDEX. 
 
 [References are to Sections.] 
 ■ URISDICTION— continued. 
 
 of trial court, when ousted by appeal, 541-543. 
 lit" per<on, when appearance waives, 677, 67S. 
 of subject, presumption that court had, 715. 
 no presumption of in case of default, 716. 
 presumption of is not rebutted by silence of record, 717. 
 ctions to, 776. 
 
 See Appellate Jurisdiction. 
 
 JURY AND JURORS, 
 
 no right to trial by, on appeal, 29, 30. 
 
 objections to mode of impaneling must be made in trial court, 341, 612, 
 
 613. 6S4. 
 partv asking must show by the record a request, refusal and exception in 
 
 order to make refusal available error, 612. 
 refusal to call must be assigned as cause for new trial, 612, n. 4. 
 when it is discretionary with trial court to call, 612. 
 extent of discretionary power of court in determining competency and 
 
 excusing jurors, 613, 614. 
 disqualification because of prejudice against business, 614 n. 2. 
 disqualification from knowledge of rumors and newspaper reports, 614, n. 2. 
 discharge before verdict, 621. 
 
 erroneous rulings in selecting and impaneling, when harmless, 649. 
 misconduct of jurors, when harmless, 650, 671. 
 refusal to submit interrogatories to, is harmless, when, 651. 
 trial bv. denial of where right exists is prejudicial error, 654. 
 mi-conduct of jurors, when prejudicial error, 671. 
 
 should not take instruments of evidence with them to jury room, 671. 
 refusal to submit interrogatories to, when prejudicial error, 673. 
 joinder in demurrer to evidence waives right to trial by, 6S5. 
 objections to, are waived unless seasonably made, except where party is 
 
 excusably ignorant of the objection, 691. 
 presumptions concerning, 723. 
 objections to, should be specific, 778. 
 answers of jurors, when polled, must be brought in by bill of exceptions, 
 
 8l 7, n. 1 on p. 769. 
 error- in impaneling are assignable as cause for new trial, S4S. 
 irregularity or misconduct of should be specifically assigned as cause for 
 
 new trial. 849, S51. 
 form < fbill of exceptions where challenge is overruled, S66. 
 form of bill of exceptions in case of misconduct of jurors, S6S. 
 
 JUSTICE OF Till-: PEACE, 
 
 when Appellate Court has jurisdiction over appeals in actions originating 
 before. 51-53.
 
 INDEX. #j 
 
 [References arc to Sections.] 
 
 L 
 
 LANDLORD AND TENANT, 
 
 Appellate Court has jurisdiction of appeals in actions between, 68. 
 
 LAW, 
 
 questions of, 274, 279, 301, 600, 627, 630, 633. 
 reserved questions of, 233-244. 
 
 form of bill of exceptions on reserved questions of, S62. 
 form of bill where questions arise on instructions, S63. 
 
 LAW OF THE CASE, 
 
 decision of appellate tribunal constitutes, 578. 
 
 what it covers, 578. 
 
 is binding at every stage, even upon second appeal, 578. 
 
 LEADING QUESTIONS, 
 
 court may permit, 61S. 
 LEGAL REPRESENTATIVES, 
 
 See Personal Representatives. 
 LEGISLATURE, 
 
 can not deprive constitutional court of jurisdiction, 2. 
 
 can impose only judicial duties on courts, 3. 
 
 can not compel Supreme Court to give opinions to it, 4. 
 
 M 
 
 MANDAMUS, 
 
 appellate jurisdiction is in Supreme Court, 44. 
 when appellate tribunal has power to issue writ, 511, 514. 
 cases in which it will not issue, 515, 79S. 
 
 will issue to compel inferior tribunal to act but not to decide in any par- 
 ticular way, 515. 
 cases in which it will issue. 516, 798. 
 
 merits of case can not be determined on application for, 516, n. 3. 
 is an extraordinary remedy and not a writ of right, 517. 
 verified petition is required and strong case must be made, 517. 
 will not lie where action for breach of contract is the proper remedy, 657. 
 form of motion to modify mandate, S94. 
 
 MARGINAL NOTES, 
 
 must be made on transcript by appellant, 204. 
 MARION SUPERIOR COURT, 
 
 appeals from, 310. 
 
 assignment of errors on appeal from, 310. 
 
 form of assignment of errors, S79.
 
 848 
 
 INDEX. 
 
 [References arc to Sections.] 
 MISCONDUCT OF COUNSEL, 
 
 is in effect the misconduct of his client. 672. 
 in argument, when cause for reversal, 672. 
 in making improper remarks, 672. 
 objections to should be specific, 782. 
 
 refusal of court to check or correct should be specified in motion for new 
 trial, 849. 
 
 MISCONDUCT OF JURORS, 
 when harmless, 650. 
 when cause for reversal, 671. 
 should be specified in motion for new trial, 851. 
 form of bill of exceptions in case of, 86S. 
 
 MISCONDUCT OF PARTIES, 
 
 what is sufficient to cause a reversal, 672. 
 
 ohjections to should be specific, 7S2. 
 
 particular acts should be specified in motion for new trial, 851. 
 
 MISDEMEANOR, 
 
 Appellate Court has jurisdiction over appeals in cases of prosecution 
 for, 41. 
 
 MISTAKE, 
 
 as to law. no excuse for not appealing in time, 114. 
 
 when appeal may he allowed in case of, 151. 
 
 in selecting remedy, effect of, 655, 658. 
 
 may he cause for allowing party to withdraw general appearance, 678. 
 
 MONEY RECOVERIES, 
 
 appellate jurisdiction over actions for, 57. 
 
 MOTIONS, 
 
 direct are part of intrinsic record, 190, 191. 
 
 collateral are not part of record, 190, 191, S14. 
 
 for nunc pro tunc entry, 210—213. 
 
 for certiorari, 216—222. 
 
 for new trial not necessary in agreed case, 224, 225. 
 
 for new trial are necessary in cases of reserved questions of law, 242. 
 
 in arrest of judgment, when State can appeal from ruling on, 273. 
 
 for new trial in criminal cases, 293. 
 
 for venire de novo, t,2j. 343. 
 
 for judgment on answers to interrogatories, 327. 
 
 to modify judgments, 327. 
 
 should specify grounds, and they need not be repeated on appeal, 336. 
 
 for new trial, what it brings up for review, 343. 
 
 to modify judgments, 345. 
 
 addressed to pleading, ruling on, is not cause for new trial, 348. 
 
 for new trial, what are causes for, 347-352.
 
 index. 849 
 
 {References are to Sections.] 
 MOTIONS— continued. 
 
 difference between motion for new trial and motion in arrest, 352. 
 
 to dismiss appeal for failure to file bond, 376, 400, 519, 527. 
 
 to dismiss appeal because of defective bond, 378. 
 
 to set aside or vacate supersedeas, 399, 400. 
 
 to dismiss appeal for failure to appeal in time, 40S, 524. 
 
 matters in bar of appeal may be presented by, 409, 412. 
 
 to advance case for hearing on appeal, 465-469. 
 
 to dismiss appeal for failure to give notice, 525. 
 
 to dismiss appeal for lack of appealable interest, 526. 
 
 parties to motion to dismiss appeal, 531. 
 
 requisites of motion to dismiss appeal, 532. 
 
 notice of, to dismiss appeal, 533. 
 
 to reinstate appeal, 539, 540. 
 
 sustained where demurrer would be proper is harmless where right result 
 
 is reached, 633. 
 striking out instead of overruling is harmless error, 633. 
 to strike out or reject pleadings, when erroneous rulings on are harmless, 
 
 639- 
 to make more specific when it is prejudicial error to overrule, 665. 
 failure to object to pleadings by, when a waiver, 680. 
 to direct jury to return verdict for moving party, waived by introducing 
 
 evidence, 6S7. 
 for new trial, when proper after demurrer to evidence, 689. 
 to set aside service of process, presumed properly sustained, 725. 
 must be presented to court, 726, n. 1. 
 
 in course, must be taken notice of by parties in court, 726, n. 1. 
 for judgment on the pleadings, 751. 
 
 for judgment on answers to special interrogatories, 752. 
 for judgment on special verdict, 753-756. 
 for venire de novo, 75S-763. 
 to strike out part of special finding, 764-766. 
 
 for judgment where special finding is entirely outside the issues, 767. 
 to modify or correct judgment where it does not follow finding or verdict, 
 
 76S. 
 for new trial as a means of questioning special finding, 793. 
 for new trial, ruling on must be excepted to, 794, 795. 
 recitals in must be made part of record by bill of exceptions, 815. 
 what may be brought into record by bill of exceptions, 817 and note, 
 for new trial as a means of presenting questions to trial court for review, 
 
 829-859. 
 
 See New Trial. 
 
 MUNICIPAL ORDINANCE, 
 
 cases involving, appellate jurisdiction over, 43, 54, n. 2. 
 
 54
 
 850 INDEX - 
 
 Refen nces are to Sections.] 
 
 N 
 
 NEW TRIAL, 
 
 motion for is not necessary in agreed case, 224, 225. 
 motion tor is necessary in case of reserved questions of law, 242. 
 motion for in criminal cases, 293. 
 
 motion for is appropriate to bring in review rulings upon matters pertain- 
 ing to trial, 327, 343. 
 causes for are not assignable as error on appeal, 347, 351, 352. 
 that the court erred in overruling motion for, is proper assignment, 347, 351. 
 rulings on demurrer or motions addressed to pleadings are not causes for, 
 
 id 
 
 matters not cause for, may be specified as independent error on appeal. 
 
 349- 350. 
 
 mandamus will not lie to compel trial court to grant, 515. 
 
 when discretionary with appellate tribunal to direct, 563, 56S, 574, 575 
 
 when directed it must be granted by trial court, 576. 
 
 evidence adduced on former trial need not be adhered to, 577. 
 
 refusal to call a jury must be assigned as cause for, to be considered on 
 appeal, 612, n. 4. 
 
 when motion for is proper after demurrer to evidence, 689. 
 
 when motion for is proper in case of special finding, 793, 794. 
 
 ruling on motion for must be excepted to, 795. 
 
 affidavits in support of motion for must be brought into record by bill of 
 exceptions, 817. 
 
 motion for is part of record and need not be brought in by bill of excep- 
 tions, 817. 
 
 motion for is the ordinary means of presenting questions to trial court 
 for review, S29, 830. 
 
 office of motion for, on appeal, 831. 
 
 motion for can not precede the decision, 832. 
 
 motion for is not cut off by entry of judgment, S33. 
 
 motion for is cut off by motion in arrest of judgment, S34. 
 
 all causes should be embraced in one motion, S35. 
 
 successive motions, when permitted, 836,837. 
 
 different classes of motions for, 838. 
 
 joint motion for, S39. 
 
 requisites of motion for, generally, 840. 
 
 time of filing motion for, 841. 
 
 mot on for should be filed in open court, S 
 
 motion usually goes to entire case, S43. 
 
 when awarded as to part of case, 844. 
 
 motion should he complete in itself, 845. 
 
 rulings on pleadings and objections to form of judgment are not causes 
 for, 846.
 
 INDEX. 851 
 
 {References are to Sections.] 
 NEW TRIAL— -continued. 
 
 refusal of court to submit interrogatories is cause for, but question as to 
 right to judgment thereon can not be presented by motion for new- 
 trial, 847. 
 
 prejudicial irregularity in proceedings of court is cause for, 848. 
 
 particular irregularities complained of must be specified, 848. 
 
 irregularity of jury or prevailing party is cause for, 849. 
 
 abuse of discretion may be cause for, 850. 
 
 misconduct of jury or prevailing party is cause for, S51. 
 
 misconduct must be specified, 851. 
 
 accident or surprise may be cause for, 852. 
 
 surprise must be as to matter of fact and not of law, 852. 
 
 errors of law occurring on the trial are cause for, 853. 
 
 errors must be specified, 853. 
 
 where verdict or finding is contrary to law, 854. 
 
 where verdict or finding is not sustained by evidence, 854. 
 
 error in assessing damages is cause for, 855. 
 
 that damages are excessive is proper assignment of cause for, in actions 
 ex delicto, but not in actions ex contractu, Se,6. 
 
 fifth statutory cause should be assigned in actions ex contractu where 
 damages are erroneously assessed, 856. 
 
 newly discovered evidence as a cause for, S57. 
 
 on grouud of newly discovered evidence, party asking must show diligence, 
 
 857- 
 
 newly discovered evidence merely cumulative or impeaching is not suf- 
 ficient, S57. 
 
 affidavit is necessary in case of newly discovered evidence, 857. 
 
 newly discovered evidence must be competent, material and relevant, 857. 
 
 counter-affidavits are admissible upon the question of diligence, 858. 
 
 when motion must be verified or supported by affidavit, 859. 
 
 form of bill of exceptions, 867. 
 
 NOTICE, 
 
 when it must be given to co-parties, 139, 141, 144. 
 
 is necessary to constitute due process of law, 143. 
 
 is jurisdictional, 144, 173. 
 
 waiver of, 145, 146, 175, 286. 
 
 to one who is a party but not a co-party, effect of, 164. 
 
 what is sufficient, 171. 
 
 must be in writing, 172. 
 
 by publication, legislature may authorize, 173, 183. 
 
 time for which it must be given, 174. 
 
 upon whom it must be served, 176. 
 
 service on attorney of record, 177. 
 
 service on one of several attorneys, 178. 
 
 proof of service, 179. 
 
 filing of notice and proof, 1S0.
 
 [NDEX. 
 
 References arc to Sections.] 
 \< >TICE— continued. 
 
 service on co-parties, 1S1. 
 
 lions to. how made, 1S2. 
 constructive, publication, 1S3. 
 
 I of publication. 1S4. 
 amendment of proof, 1S5. 
 of motion for nunc pro tunc entry, 212. 
 of application for certiorari, 221. 
 of intention to reserve questions of law, 235. 
 of appeal after term, 249-251. 
 
 of application for extension of time to appeal. 264, 265. 
 of appeal by State. 282, 2S3. 
 of appeal by defendant in criminal case, 286. 
 where merely irregular or defective, there can be no collateral attack, and 
 
 objection must -be made in trial court, 331. 332. 
 where there is no notice, question may be first made on appeal, 332. 
 of motion to dismiss appeal, 376, 533. 
 of motion in bar of appeal, 412. 
 of assignment of cross-errors, 422. 
 of submission of appeal in term, 431, 432. 
 
 of submission of appeal after term, under act of 18S5, 433, 435. 
 of application for advancement, 467. 
 dismissal of appeal for failure to give, 525. 
 to produce documents for inspection, 741, 742. 
 
 NUNC PK() TUNC ENTRIES, 
 when made, 209. 
 motions for, 210. 
 
 by whom motion may be made, 211. 
 notice of motion, 212. 
 evidence on hearing motion, 213. 
 may be appealed from, 214. 
 
 enting ruling on appeal, 215. 
 in which they may be made, 693. 
 
 OBJECTIONS, 
 
 to process must be seasonable and specific, 182, 328, 329. 
 
 may be waived by consent in criminal cases, 270, n. 7. 290. 
 
 must be specific and seasonably made in trial court in criminal cases, 293. 
 
 to mode of impaneling jury and to jurors, 341, 691, 77S. 
 
 to rulings on verdicts, 342. 
 
 to judgments, 344-346. 
 
 to judgments or decrees mustgenerally be presented in trial court, 345, 346. 
 
 to trial where issue of law remains undecided may be waived, 352. 
 
 what are waived by common joinder, 406.
 
 index. 853 
 
 [References are to Sections.] 
 OBJECTIONS— continued. s, 
 
 what are waived by submission, 426, 427. 
 to submission, should be in writing and verified, 436. 
 should be specifically stated in briefs, 445, n. 2. 
 should be presented to trial court in order to be available on appeal, 470, 
 
 674, 692. 
 to jurisdiction, when and how made, 470, 502, 776. 
 to complaint may be first made on appeal, 471-475. 
 to answer can not be first made on appeal, 476, 4S0. 
 
 to cross-complaint or counter-claim may be first made on appeal, 477-478. 
 to reply can not be first made on appeal, 479, 480. 
 to judgment en pleadings, 4S2. 
 to set-off may be first made on appeal, 4S3. 
 in cases where a bad answer is proved, 4S4-4S7. 
 in anomalous cases, 487. 
 in criminal cases, 4SS. 
 
 to juror must be promptly and specifically made, 613, n. 2, 778. 
 to remedy must be made in trial court, 658, 679. 776. 
 waived in trial court are completely lost, 674, 675. 
 to jurisdiction of person, waiver of, 677, 67S. 
 to pleadings, how waived, 680-682, 68S. 
 to ruling on demurrer, waiver of, 6S3. 
 preliminary, waiver of, 6S4. 
 that suit was prematurely brought or appeal prematurely taken, waiver 
 
 of, 684 
 to appeal or supersedeas bonds, waiver of, 684. 
 to ruling on demurrer to evidence, waiver of, 6S6. 
 
 to competency of evidence, are waived by demurring to evidence, 689. 
 to mode of trial, waiver of, 690. 
 to competency of judge or jurors, waiver of, 691. 
 definition and office of, distinguished from exceptions, 769. 
 must be specific, 770. 
 
 grounds of, must be stated and appear in record, 771, 775. 
 must be seasonable, 772. 
 must come from the proper party, 773. 
 joint where good as to only one party are unavailing, 773. 
 where evidence is competent against only one of several parties, 774. 
 to pleadings generally, 777. 
 to evidence, 779, 780. 
 
 to evidence where question is proper but answer incompetent, 781. 
 to conduct of parties or counsel, 782. 
 
 OFFERS, 
 
 general doctrine of, 742. 
 
 of testimony on examination in chief, 742-746. 
 
 where objection to question is sustained, 743-746. 
 
 should not mingle competent with incompetent evidence, 745.
 
 854 1N1)KX 
 
 References are to Sections.] 
 OFF! RS— « ontinned. 
 
 are nol required on cross-examination, 717. 
 of documentary evidence, 71 s . 
 need not be repeated, 749. 
 
 OPEN AM) CLOSE, 
 
 who is entitled to, 671. 
 
 when error in refusing is prejudicial, 671. 
 
 will be presumed to have been properly directed by trial court, 721;. 
 
 OPINIONS, 
 
 Supreme Court not required to give to legislature, 4. 
 
 Supreme Court must write. 46. 
 
 what questions must be considered, 46. 
 
 ORAL ARGUMENT, 
 
 importance of, 453. 
 application for, 454. 
 
 limitation of, 455. 
 statement of points Tor, 456. 
 interchange of points tor, 457. 
 
 ORDER OF DOCKETING AND HEARING APPEALS, 
 
 appeals are docketed in order of filing, 458. 
 
 exceptions, 459. 
 
 cause can not be docketed until transcript is filed, 460. 
 
 causes are heard in order in which they are docketed, 461. 
 
 court may change order of hearing, 462. 
 
 advancement, 463, 404. 
 
 application for advancement, 465. 
 
 submission is necessary before application for advancement, 466. 
 
 notice of application to advance, 467. 
 
 hearing on motion to advance. (.68. 
 
 questions for decision on motion to advance, 469. 
 
 ORDERS, 
 
 appeal will not generally lie from interlocutory, 80-81. 
 wha an- interlocutory, So-84. 
 when appeal will lie from, 100-107. 
 
 effeel of appeal from, 10S. 
 
 mode of appealing from. 109, 268. 
 
 in matters connected with decedents' estates, 229. 
 
 arresting judgment, State may appeal from, 272. 273. 
 
 stay upon appeals from. 
 
 appeal from does not completely oust jurisdiction of trial court, 542.
 
 INDEX. 855 
 
 \Rcferenccs are to Sectio?is.] 
 
 P 
 
 PARTIES, 
 
 under disabilities, when they may appeal, 130. 
 
 who maj' appeal, 131, 132, 147. 
 
 appealable interest, 133-135, 160. 
 
 exceptional cases, 136. 
 
 right of successor to appeal, substitution, 137. 
 
 joint parties, 138. 
 
 co-parties, 139. 
 
 necessary parties, 140, 160. 
 
 parties to record but not to judgment not always necessary parties, 141. 
 
 persons not affected by appeal are not necessary parties, 142. 
 
 notice to, 143-145. 
 
 waiver of notice, 146, 150-152. 
 
 successful party can not appeal, 147. 
 
 appellees, who should be, 153, 154. 
 
 united in interest, 155. 
 
 how co-parties may become adversaries, 156. 
 
 effect of change of interest, 157, 158. 
 
 relation in trial court generally continues on appeal, 159. 
 
 appealable interest, how shown, 160. 
 
 change of position of parties, effect of, 161. 
 
 time within which parties must be brought in, 162. 
 
 co-parties who refuse to join, effect of appeal upon, 163. 
 
 notice to one who is a party but not a co-party, effect of, 164. 
 
 death of party before appeal, effect of, 165. 
 
 death of party after appeal, effect of, 166, 169. 
 
 death of one of several appellants, effect of, 167. 
 
 legal representatives and privies, 16S. 
 
 who may assign error, 311-315, 31S-321. 
 
 must generally be named in assignment of errors, 322, 323. 
 
 to motion to dismiss appeal, 531. 
 
 to the action, difference between necessary and proper, 659, 660. 
 
 who are necessary parties to an action, 659-661. 
 
 criterion for determining who are necessary, 661. 
 
 who should be plaintiffs, 662. 
 
 who should be defendants, 662. 
 
 joinder of, 663. 
 
 right of action must exist in all who join as plaintiffs, 663. 
 
 PARTITION, 
 
 appellate jurisdiction is in Supreme Court, 44. 
 
 PAYMENT. 
 
 of judgment by defendant will not estop him from appealing, 152. 
 form of motion to dismiss appeal on ground that appellant had accepted 
 payment of judgment, 8S1.
 
 856 [NDEX - 
 
 A', ferences are to Sections.] 
 PERSONAL PROPERTY, 
 
 Appellate Court has jurisdiction of appeals in actions for, 65. 
 value is immaterial, 66. 
 
 PERSONAL REPRESENTATIVES, 
 
 may appeal where party dies, 133, 137. 
 
 substitution of, 137. 
 
 when they should unite with heirs in appeal, 16S. 
 
 common joinder admits representative character of appellant. 40S- 
 
 PETITION, 
 
 for leave to appeal after expiration of time limited, 116, 264. 
 
 to advance ease for hearing on appeal, 465. 
 
 for aid in perfecting appeal, 509. 
 
 for injunction on appeal, 513. 
 
 for mandamus, 5 17. 
 
 for rehearing, 550-561, 5S6. 
 
 form of petition for leave to amend assignment of errors, SS4. 
 
 form of petition for certiorari, SS6. 
 
 form of petition for change of record, nunc pro tunc, 8S7. 
 
 form of petition to advance. SSS, SS9. 
 
 form of petition for rehearing, S93. 
 
 PLEADINGS, 
 
 are part of record, 190-191, 202. 
 
 amended and substituted pleadings, 190, 595, 596. 
 
 effect of failure to obey rule to plead, 335. 
 
 rulings on generally, assignment of errors as to, 336. 
 
 rulings on demurrer, assignment of errors, 337. 
 
 interrogatories to parties are, 338. 
 
 can not ordinarily he attaeked for first time on appeal, 480,481. 
 
 judgment on, should he asked in trial court and not first on appeal, 4S2. 
 
 parties are held on appeal to theory outlined by, 494. 
 
 can not be amended after case is remanded with directions to reassess 
 
 damages, 576, n. 3. 
 substitution of, 596. 
 
 Stituted may he brought into record by certiorari , 596. 
 on which error is alleged must be in the record, 596. 
 struck out on motion must be brought into record by bill of exceptions, 
 
 n. 3, S16. 
 time for filing is in discretion of trial court, 606. 
 amendment of is largely in discretion of trial court, 607-611. 
 may be amended alter verdict to prevent a variance but not to remedy a 
 
 failure of proof, ''to. '.11. 
 party can not complain that his own are defective, 627. 
 admission of a tact in warrants assumption that evidence thereof is un- 
 
 sary, 627. 
 parties are held to construction which they give the pleadings, 630.
 
 INDEX. 857 
 
 [References are to Sections.] 
 PLEADINGS— continued. 
 
 when erroneous rulings on motions to strike out or reject are harmless, 639. 
 
 defective merely in form will be deemed amended on appeal, 640. 
 
 motion to make more specific, when it is prejudicial error to overrule, 665. 
 
 error in overruling demurrer to, is prejudicial, 666, 669. 
 
 when error in sustaining demurrer to one of several paragraphs is not 
 prejudicial, 669. 
 
 waiver of objections to, by failing to make the proper motion, 6S0. 
 
 waiver of objections to, by failing to demurrer or demand ruling on de- 
 murrer, 6S1, 682. 
 
 answering complaint or amending pleading after ruling on demurrer op- 
 erates as a waiver, 6S3. 
 
 waiver of objections by demurring to evidence, 688. 
 
 error in ruling on, may be cured by decree or special verdict or finding,. 
 697, n. 1. 
 
 presumption that judgment is founded on proper, 719. 
 
 presumption that rulings on were correct, 720. 
 
 objections to, 777. 
 
 rulings on are not assignable as causes for new trial, S46. 
 
 PLEADINGS OF THE APPELLEE, 
 
 demurrer to assignment of errors, 401, 402. 
 
 plea for answer, 403. 
 
 joinder in error, 404. 
 
 common joinder admits the record, 405. 
 
 waiver by common joinder, 406. 
 
 special plea or answer, 407. 
 
 what must be specially pleaded, 40S. 
 
 matters in bar may be shown either by plea or motion, 409. 
 
 motion presenting matters in bar, 410. 
 
 verification of motion, 411. 
 
 notice of plea or motion, 412. 
 
 demurrer to special plea, 413. 
 
 reply to special plea, 414. 
 
 assignment of cross-errors, 415-421. 
 
 notice of assignment of cross-errors, when not required, 422. 
 
 time within which cross-errors must be assigned, 423. 
 
 answer to assignment of cross-errors not required, 424. 
 
 POINTS FOR ORAL ARGUMENT, 
 
 what is a " point," 444. 
 
 must be stated in writing, 456. 
 
 interchange of, 457. 
 
 PRAECIPE, 
 
 direction to clerk as to what shall be included in record, 200. 
 is liberally construed, 200. 
 form of, 873.
 
 858 
 
 [NDEX. 
 
 [References are to Set t r' 
 
 PREJl DICIAL ERROR, 
 
 record must show, 592, 632. 
 
 entire record must be examined to determine whether error is prejudicial, 
 
 653- 
 when it exists, 65 \. 
 
 in mistaking the remedy, 654, 655, 658. 
 in election of remedies, 656. 
 in seeking an extraordinary remedy where only an ordinary remedy is 
 
 proper, 657. 
 how error in mistaking remedy is made available, 65S. 
 in tailing to bring in necessary parties, 659-662. 
 in joinder of parties, 663, 664. 
 
 in overruling motion to make a pleading more specific, 665. 
 in rulings on demurrer, 666-669. 
 in admitting and excluding evidence, 670. 
 in rulings regarding the right to open and close the case, 671. 
 misconduct of counsel in argument, 671, 672. 
 improper remarks of the judge, 671. 
 
 giving instructions in jury-room in absence of parties and counsel, 671. 
 permitting to take instruments of evidence to jury -room, 671. 
 permitting jury to communicate with parties and third persons, 671. 
 allowing officer to remain in jury-room during consultation, 671. 
 misconduct of parties and counsel, 672. 
 in refusing to submit interrogatories to jury. 673. 
 in withdrawing interrogatories, 673. 
 
 PRESENTING A.N OPPORTUNITY FOR REVIEW, 
 
 theoretically all questions should be presented to trial court for review, S27. 
 practically rulings connected with trial must be presented to trial court for 
 
 review, 828. 
 mode of, 829. 
 
 motion for new trial the ordinary means of, S29, 830. 
 rules governing motion for new trial, 832-859. 
 See New Trial. 
 PRESUMPTIONS, 
 
 that jurisdiction exists, 12, 501, n. 2, 502, 715. 
 
 in criminal cases, 291. 
 
 that court will adhere to theory indicated by riding, 590, 591. 
 
 of prejudice from erroneous ruling, 594. 
 
 that trial court properly exercised its discretionary power, 604, 606. 
 
 that where challenge to juror was sustained the juror was disqualified, 
 
 7-.v 
 presumption which upholds the proceedings will be preferred on appeal, 
 
 7'"/. 71-. 
 all reasonable presumptions will he indulged in favor of the trial court 
 
 rulings, 7 10. 
 presumption in favor of trial court is not conclusive. 711.
 
 INDEX. 859 
 
 [References are to Scctions.\ 
 PRESUMPTIONS— continued. 
 
 will not prevail against the record, 713. 
 
 that judge was competent and court duly organized, 714. 
 
 that the court had jurisdiction of subject, 715, 716. 
 
 presumption of jurisdiction does not exist in case of default where there 
 
 is no appearance or service of process, 716. 
 of jurisdiction not rebutted by silence of record, 717. 
 that judgment is properly supported, 718, 725. 
 
 that judgment is within the issues and founded on the pleadings, 719. 
 that rulings on pleadings were correct, 720. 
 that rulings on evidence were correct, 721. 
 that court gave proper instructions, 722. 
 
 that jurors were properly summoned, impaneled and sworn. 723. 
 that the court allowed the number of peremptory challenges given by law, 
 
 723- 
 
 in aid of the verdict, 724. 
 
 that costs were properly taxed, 725. 
 
 that case was rightly taken up and tried out of its order, 725. 
 
 that case sent from one court to another properly reached the latter, 725. 
 
 that change of venue was waived, 725. 
 
 that accused present when trial opened was present throughout. 725. 
 
 that judgment was pronounced in open court, 725. 
 
 that modification of judgment was properly made at proper time, 725. 
 
 that judgment by default was entered in open court in due form, 725. 
 
 that bond was duly approved, 725. 
 
 that instructions were in writing, 725. 
 
 that motion to set aside service was properly sustained. 725. 
 
 that order of dismissal was vacated and cause reinstated, 725. 
 
 that court gave proper directions as to open and close, 725. 
 
 that admissions sustain the judgment, 725. 
 
 that specific findings were duly made, 725. 
 
 that court properly restrained counsel in argument, 725. 
 
 that orders as to continuance, change of venue or new trial were right- 
 fully entered, 725. 
 
 that the rules of court were rightfully adopted, 725. 
 
 PROCESS, 
 
 meaning of term, 170, n. 1. 
 
 object of, 170. 
 
 test of sufficiency, 171. 
 
 difference between direct and collateral attack upon, 171. 
 
 must be written, 172. 
 
 is essential to jurisdiction, 173. 
 
 may be by publication when authorized by legislature. 173, 1S3. 
 
 time of, 174. 
 
 not given in time, waiver, 175. 
 
 upon whom it must be served. 176.
 
 INDEX. 
 
 [References are to Sections.} 
 PR< \CESS— continued. 
 
 service on attorney of record, 177. 
 
 service on one of several attorneys, 178. 
 
 proof of service, 179. 
 
 notice and proof of service must he filed, 180. 
 
 service on co-parties, 1S1. 
 
 objections to, when and how made, 1S2, 32S, 329. 
 
 constructive notice, 1S3. 
 
 by publication, statute must be followed, 183. 
 
 proof of publication, 1S4. 
 
 amendment ot" proof, 185. 
 
 in case of default, 329, 330. 
 
 distinction between cases where there is no process or service *nd cases 
 
 where it is detective, 331—333. 
 when it may be first attacked on appeal, 332. 
 writ running beyond term is void and objection may be first made on ap- 
 
 peai, :,r,. 
 
 PROHIBITION, 
 
 appellate jurisdiction is in Supreme Court, 44. 
 will not take place of appeal or writ of error, 518. 
 when it will issue, 518. 
 
 PROSECUTIONS, 
 
 tor felony, Supreme Court has jurisdiction over appeals from, 41. 
 
 tor misdemeanors, appellate court has jurisdiction over appeals from, 41. 
 
 PUBLICATION, 
 
 notice by, 173, 183. 
 proof of, 1S4. 
 amendment of proof, 1S5. 
 
 a 
 
 QUESTIONS FIRST MADE ON APPEAL, 
 
 objections not presented to trial court are generally not considered on ap- 
 peal, 170. 
 objections to jurisdiction may be made at any time, 470. 
 questions as to sufficiency of complaint, 171-475. 
 
 one good paragraph will save complaint first attacked on appeal, 474. 
 answer can not be attacked for firsl time on appeal, 476, 4S0, 4S1. 
 
 up!, lint or counterclaim may be first attacked on appeal, 477, 47S. 
 reply can not be first questioned on appeal, 479, 4S0, 4S1. 
 judgmenl on pleadings can not be hist asked on appeal, 4S2. 
 
 off may be firsl assailed on appeal, 4S3. 
 when evidence merely proves a bad answer, judgment may be reversed 
 
 although answer was not questioned in trial court. 1^5-486. 
 anomalous cases, 1.87, 
 
 inal cas,s. where indictment may be first assailed on appeal, 4SS.
 
 INDEX. 861 
 
 [References are to Sec/ions.] 
 C^JESTIONS OF FACT, 
 
 can not be taken up by State on appeal in criminal cases, 274. 
 are not presented by assignment of errors, 301. 
 
 QUESTIONS OF LAW, 
 
 are presented by State on appeal, 274. 
 how they may arise, 279. 
 are presented by assignment of errors, 301. 
 questions as to discretionary power of trial court, 600. 
 estoppel of party to deny that questions are, 627, 630. 
 submitting to jury may be harmless where right result is reached, 633. 
 See Reserved Questions of Law. 
 
 QUO WARRANTO, 
 
 appellate jurisdiction is in Supreme Court, 44. 
 when the proper remedy, 657. 
 
 R 
 
 RECEIVER, 
 
 appeal lies from judgment allowing claim against, 99. 
 
 appeal lies from order authorizing him to borrow money. 99. 
 
 appeal lies from order appointing, 100. 
 
 may appeal as successor, 137. 
 
 when trial court can control his conduct after appeal. 545. 
 
 RECORD AND TRANSCRIPT, 
 
 appeals are tried by, 1S6. 
 record imports absolute verity, 1S6. 
 
 can not be contradicted by officer's certificate, 1S6, n. 7. 
 can not be made by agreement, 1S7. 
 
 defects in transcript may be remedied by agreement, iSS. 
 difference between, 1S9. 
 
 record may be amended by nunc fro time entry, 1-90, 209-215. 
 what are parts of record proper, 190, 202. 
 
 pleadings and direct motions are part of record, 190, 191, 202, 
 collateral motions are not part of record proper, 190, 191. 
 affidavits are not part of record, 190. 
 substituted pleadings, when part of record, 190. 
 
 special order of court or bill of exceptions necessary to add extrinsic mat- 
 ters to record, 192. 
 special cases, 193. 
 in case of default, 193. 
 questions on instructions, 193. 
 
 record on appeal distinguished from trial court record, 194. 205. 
 requisites of transcript, 195. 
 what transcript should contain, 196, 19S.
 
 
 I\ DEX. 
 
 ', rentes are to Sections.] 
 RECORD AND TRANSCRIPT— continued. 
 
 independent cases can not be included in one transcript, 197. 
 
 transcript should include so much of record as is embraced in appeal, 198. 
 
 appellant mav direct what shall be included in transcript. 19S, 200. 
 
 practice where transcript contains improper matter, 199. 
 
 praecipe should direct what transcript shall include, 200. 
 
 where transcript is defective court may affirm judgment or dismiss ap- 
 peal. 200. n. 3. 
 
 authentication of transcript, 201. 
 
 authority of appellate tribunal over transcript, 203. 
 
 marginal notes must be made by appellant, 204. 
 
 amendment and correction of trial court record, 206-215. 
 
 effect of amendment of trial court record, 207. 
 
 amendment not allowed after decision on appeal. 208. 
 
 nunc pro tunc entries, when and how made and obtained, 209-215. 
 
 certiorari, 2 1^222, 2S1. 
 
 in agreed case. 232. 
 
 record in criminal cases, preparation of, 275. 
 
 what record in criminal case must show, 280, 292, 294. 
 
 correction of record in criminal case by certiorari. 281. 
 
 when leave to amend may precede assignment of error, 302. 
 
 common joinder admits the record, 405. 
 
 in case of assignment of cross-errors, 421. 
 
 mandamus will lie to compel signing and certification of, 516. 
 
 trial court mav amend after appeal, 54S. 
 
 trial court can not make entirely new record after appeal, 549. 
 
 rehearing will not be granted to enable parties to secure correction of, 556. 
 
 must show error, 592,632. 
 
 where susceptible of two constructions that which sustains judgment will 
 be preferred, 712. 
 
 presumptions will not prevail against, 713. 
 
 silence or incompleteness of does not rebut presumption of jurisdiction, 717. 
 
 must -how specific grounds of objection, 771. 
 
 REHEARING, 
 
 statutory provisions concerning, 550. 
 
 petition must Ik- tiled in time, 550. 
 
 effect of tiling petition for, 551. 
 
 case remains in appellate tribunal undisposed of until petition is acted on, 
 
 ]. utation of time for filing petition. 552. 
 all necessary acts must be done within time fixed, 553. 
 who may petition for, 554. 
 office of the petition, 555. 
 will not he -ranted to enable parties to secure correction of record or 
 
 transcript, 550. 
 new questions can not be presented in petition for, 557.
 
 INDEX. 863 
 
 {References are to Sections.] 
 REHEARING— continued. 
 
 second petition will not be entertained, 558. 
 submitting the petition, 559. 
 ruling on petition, 560. 
 effect of granting, 561. 
 form ot petition for, 793. 
 
 REINSTATEMENT OF APPEAL, 
 
 appellate tribunal may order, 537. 
 
 party asking must show good cause, 538. 
 
 motion for, 539, 540. 
 
 notice of motion for, 539. 
 
 practice on hearing of motion, 540. 
 
 form of motion for, 892. 
 
 RELEASE, 
 
 will estop party from prosecuting appeal, 150. 
 
 of sureties, 3S1, 382. 
 
 of errors must be specially pleaded, 408. 
 
 REMEDY, 
 
 election of, 149, 496, 656-658. 
 
 mistaking, 655. 
 
 consequences of mistaking, 658. 
 
 how error in mistaking is made available. 658. 
 
 objections to, may be waived, 679. 
 
 REMITTITUR, 
 
 effect on question of jurisdiction, 62. 
 
 appellate tribunal may direct, 570-572. 
 
 may be voluntarily entered, 570, n. 4. 
 
 affirmance is generally at cost of party who enters the remittitur, 573. 
 
 REPLY, 
 
 to special plea, 414. 
 
 can not be attacked for first time on appeal, 479-4S1. 
 
 REPRESENTATIVES, 
 
 See Personal Representatives. 
 
 REQUESTS AND OFFERS, 
 
 request is generally necessary to make failure to rule error, 726, 727. 
 implied request, 72S. 
 
 time within which request must be made, 729. 
 party must make his own request, 730. 
 
 where request has been granted adverse party may insist that it be ad- 
 hered to, 73a 
 where request is necessary the record must show it was duly made, 731. 
 request for special rinding, 732. 
 request tor written kist.-uctions, 733.
 
 Mil 
 
 INDEX. 
 
 [References are to Sections.] 
 REQUESTS AND OFFERS— continued. 
 
 request to inspect instructions, 734. 
 
 request for special instructions, 735. 
 
 request where instructions are correct as far as they go, 736. 
 
 reque-t to submit interrogatories to jury, 737. 
 
 request for special verdict, 738, 739. 
 
 request tor production and inspection of documents, 740, 741. 
 
 offers, when and why required, 742. 
 
 offer of evidence showing what party expects to prove is necessary on ex- 
 amination in chief after ruling excluding it, 743. 
 
 where offer of evidence is made it must be ihown to be material and rele- 
 vant, 744. 
 
 offer of evidence part of which is competent and part incompetent may 
 be rejected, 745. 
 
 offer of evidence is not good unless a question is asked calling for it, 746. 
 
 offer of evidence is not required on cross-examination, 747. 
 
 offer of documentary evidence, 748. 
 
 repeating offers, 749. 
 
 RESERVED QUESTIONS OF LAW, 
 object of statute providing for, 233. 
 what evidence is necessary in record, 233, n. 2. 
 case must be made up under statute, 234. 
 
 notice of intention to reserve questions must be given to court, 235. 
 when and how notice must be given, 235, and notes, 
 only questions of law can be reserved, 236, 238. 
 on what rulings questions can be reserved, 237. 
 exception to ruling is necessary, 239. 
 
 bill of exceptions, when necessary and what it must contain, 240, 241. 
 office of bill of exceptions, 241. 
 final judgment is necessary before appeal, 243. 
 appeal does not stay proceedings, 244. 
 
 supersedeas can be ordered only by appellate tribunal, 244. 
 form of bill of exceptions, 862. 
 
 RESTITUTION, 
 
 when it must be made, 5S3. 
 order of, how obtained, 584. 
 
 REVERSAL OF JUDGMENT, 
 
 form and effect of, generally, 580. 
 
 costs in 581. 
 
 effect on bona fide purchasers, 582. 
 
 when restitution will be directed, 5S3, 584. 
 
 !■ 1 \ ll.W, 
 
 appellate jurisdiction is one of, 17. 
 
 statutory mode must be pursued, 19.
 
 INDEX. 865 
 
 [References arc to Sections.] 
 REVIEW — continued. 
 
 suit for cuts oft* appeal, 149, 530. 
 
 suit for may in some cases be prosecuted after unsuccessful appeal. 530. 
 suit for, will generally lie only where there are proper objections and ex- 
 ceptions, 769, n. 2. 
 rulings connected with trial must be brought before trial court for, 827,828. 
 mode of presenting questions for, S29. 
 by motion for new trial, 832-S59. 
 
 See New Trial. 
 RULES, 
 
 power of court to make, 7, 616. 
 
 of Supreme Court govern Appellate Court, 71. 
 
 presumption that they were rightfully adopted and properly promulgated, 
 
 7 2 5- 
 must be brought into record by bill of exceptions, S17, n. 1 on p. 769. 
 
 S 
 SET-OFF, 
 
 may be attacked for first time on appeal, 4S3. 
 
 SEVERANCE, 
 
 effect of, as to parties on appeal, 157, 15S. 
 
 SERVICE, 
 
 on attorney of record, 177, 17S. 
 
 proof of, 179. 
 
 filing of notice and proof, 180. 
 
 on co-parties, 1S1. 
 
 objections to, how made, 1S2. 
 
 bv publication, 1S3. 
 
 proof of publication, 1S4. 
 
 amendment of proof, 185. 
 
 presumption as to ruling on motion to set aside. 725. 
 
 SPECIAL FINDING, 
 
 express request is necessary to secure, 732. 
 
 when request for must be made, 732. 
 
 request for must be shown by record, 732. 
 
 request for, may appear in finding itself. 732 
 
 characteristics and incidents of, 757. 
 
 when questions on can be raised by motion for venire de novo, 758-763. 
 
 motion to strike out, 764, 765. 
 
 wholly outside the issues, motion for judgment and exception to conclu- 
 sions of law, 767. 
 
 where judgment does not follow it, motion to correct or modify judgment 
 will lie. 76S. 
 
 motion for new trial questions its correctness, when, 793, 854 
 
 55
 
 [NDEX. 
 
 /,\ f, >■, tic, 5 are to Sections.) 
 CIAL INTERROGATORIES, 
 motion for judgment on, 327, s i;. 
 when refusal to submit is harmless, 651, 673. 
 
 when immaterial are submitted the error is generally harmless, 651. 
 when answers must be returned to, 673. 
 when jury can answer that there is no evidence, 673. 
 when they may be withdrawn, 673. 
 motion to recommit for more specific answers, 691. 
 
 can not generally be withdrawn over objection, although submitted at re- 
 quest of adverse party. 730. 
 must be expressly requested, 737. 
 motion for judgment on, 752. 
 inconsistency between answers and general verdict, how taken advantage 
 
 of, 847. 
 
 error of court in refusing may be presented by motion for new trial, 847. 
 
 SPECIAL JUDGE. 
 
 presumption as to regularity of his appointment and as to his authority, 
 
 714. 
 his authority continues until case is disposed of, 714, n. 5 
 when bill of exceptions should be signed by, 799. 
 
 SPECIAL VERDICT, 
 
 general instructions need not be given in case of, and if given are generally 
 
 harmless, 645. 
 righl to, 73S. 
 request for, 73S. 
 
 practice, where it is requested, 739. 
 motion for judgment on, 753, 756. 
 
 STATE, 
 
 from what it may appeal in criminal cases, 269-274. 
 has no general right of appeal in criminal cases, 278. 
 how it may appeal, 275-285. 
 effect of appeal by, 298. 
 
 STATUTORY PENALTIES, 
 
 actions to recover, appellate jurisdiction over. 42 
 STAY OF PROCEEDINGS, 
 
 appeal does not necessarily stay proceedings, 384. 
 
 al in term generally operates as a stay, 3S5. 
 bond and order of appellate tribunal is necessary when appeal is not per- 
 fected in term, 374, 3S6. 
 supersedeas, 3S7. 
 application for sir, ■ }88. 
 
 effect of supersedeas generally, 3S9. 541. 
 
 . obtained by one of several appellants. 390. 
 supersedeas does not give right to do what decree forbids, 391.
 
 INDEX. 867 
 
 [References are to Sections.] 
 STAY OF PROCEEDINGS— continued. 
 
 effect of supersedeas upon self-executing judgments, 39:, 393. 
 
 duration of, 394, 395. 
 
 when and how set aside, 399, 400. 
 
 STENOGRAPHER'S REPORT, 
 
 cost of is part of costs of suit, 5S1, n. 3. 
 
 how made part of bill of exceptions, 798, 821, 822 
 
 SUBMISSION, 
 
 by agreement, waives irregularities in notice, 146, 426. 
 
 by agreement, waives pending motion to dismiss appeal, 146, 
 
 no particular form is required in case of such submission, but it should be 
 
 in writing, 425. 
 what it waives generally, 426. 
 what it does not waive, 427. 
 forced submission, 428. 
 on call, 429. 
 
 importance and effect of. 430. 
 of appeals in term, 431. 
 notice of, 432, 435. 
 under the act of 1885, 433, 435. 
 upon application of appellee, 434. 
 objecting to, 436. 
 setting aside, 437. 
 
 SUBROGATION, 
 
 right of sureties to, 382. 
 SUBSTITUTION, 
 
 of personal representatives and heirs, 137. 
 
 of pleadings, 596. 
 
 SUCCESSORS IN INTEREST, 
 may appeal, 133, 137. 
 
 SUMMONS, 
 
 See Process. 
 
 SUNDAY, 
 
 not a judicial day, 127. 
 
 when counted in determining time for appeal, 127, 
 
 SUPERSEDEAS, 
 
 in case of reserved questions of law, 243. 
 
 bond is generally required, 374, 3S6. 
 
 definition, 3S7. 
 
 application for, 3SS. 
 
 effect of generally, 3S9, 541. 
 
 in favor of one of several appellants. 390.
 
 INDEX. 
 
 n nces tin- to Sections.] 
 SUPERSEDEAS— continued. 
 
 does not give right to do what decree forbids, 391. 
 effect on self-executing judgments, 392, 393. 
 right and liabilities of sureties on bond, 396, 397. 
 can not be controlled by trial court, 39S. 
 when and how it may be set aside, 399, 400. 
 
 SUPREME COURT, 
 
 is the highest constitutional court, 2, 25. 
 
 extent of legislative power over, 2. 
 
 not required to give opinions to legislature, 4. 
 
 can not be turned into a nisi prius court, 27. 
 
 mode of procedure in, 2S. 
 
 no right to jury, 29, 30. 
 
 territorial jurisdiction of, 31. 
 
 has exclusive appellate jurisdiction over constitutional questions. 32. 
 
 statutory jurisdiction of, 34. 
 
 cases over which it has no jurisdiction, 35-36. 
 
 equity cases, jurisdiction over, 37, 3S. 
 
 foreclosure cases, jurisdiction over, 39. 
 
 cases involving title to land, jurisdiction over, 40. 
 
 prosecutions for felony, jurisdiction over, 41. 
 
 habeas corpus, jurisdiction over. 41. 
 
 actions to recover statutory penalties, when jurisdiction is in Supreme 
 
 Court, 42. 
 municipal ordinances, when Supreme Court has jurisdiction over cases 
 
 involving, 43. 
 other cases over which it has jurisdiction, 44. 
 inherent powers of, 45. 
 opinions, 40. 
 decisions govern Appellate Court, 72. 
 
 SURETIES, 
 
 on appeal bond, authority of trial court to approve, 366. 
 
 are generally estopped by recitals in bond, 36S. 
 
 are concluded by judgments against principal affirmed on appeal, 36S. 
 
 are not concluded by recital in bill of exceptions that they executed the 
 
 bond. 368, n. 3. 
 are not released by irregularity in approval of bond, 370. 
 what will release, 381, 382. 
 righl jation, 3S2. 
 
 1 y against, 3S3 
 on supersedeas bond, rights and liabilities of, 396, 397. 
 
 SURPRISE, 
 
 as cause for new trial, 852.
 
 INDEX. 869 
 
 [References are to Sections.} 
 
 T 
 
 THEORY OF THE CASE, 
 
 parties on appeal must abide by theory adopted by them in trial court, 481, 
 
 489, 490. 
 illustrative cases, 491, 492, 627, 630. 
 where constitutional questions are involved, 493. 
 as outlined by the pleadings, 494, 655. 
 as shown in the opening statement, 495. 
 doctrine of election, 496. 
 limitations of the rule, 497. 
 exceptions to the rule, 498. 
 
 as affecting questions of jurisdiction, 499, 501-503. 
 special cases, 500. 
 
 ruling asserting wrong theory is erroneous, 591. 
 effect upon question of right to jury trial, 612. 
 
 TIME FOR TAKING APPEAL, 
 
 limitation as to time is jurisdictional, in. 
 
 time can not, ordinarily, be extended by court, 112. 
 
 may be extended in matters affecting decedents' estates, 112, n. I, 261-267. 
 
 may be extended in case of fraud or accident, 112, 113. 
 
 not extended to party in fault, 114. 
 
 diligence required, 115. 
 
 petition for leave to appeal after time, 116. 
 
 may be extended where delay is caused by court, 117. 
 
 when time begins to run, 11S-120. 
 
 when right of appeal matures, 121. 
 
 computation of time, 122-127. 
 
 meaning of words ''years" and "months," 126. 
 
 non-judicial days, when counted, 127. 
 
 appeal must be perfected in time, 128. 
 
 where some of the appellants are barred, those not barred may appeal, 129. 
 
 parties under disabilities may appeal within one year after removal of 
 
 disabilities, 130. 
 in cases involving matters connected with decedents' estates, 261, 263-26S. 
 in criminal cases, 284, 2S5. 
 can not be extended by agreement in criminal cases, 284. 
 
 TITLE, SUITS TO QUIET, 
 
 jurisdiction is in Supreme Court, 44. 
 
 TITLE TO LAND, 
 
 cases involving are for Supreme Court, 40, 51, 52. 
 
 TORT, 
 
 waiver of, election of remedies, 656. 
 
 how error in assessment of damages is questioned in case of. 855, S56.
 
 }70 [NDEX. 
 
 Rt f( re) s '/is.] 
 
 rRANSCRIPT, 
 
 detects in may be remedied by agreement, iSS. 
 
 distinguished from record, 1S9. 
 
 requisites of, 195. 
 
 what it should contain, 196, 19S. 
 
 independent cases can not be included, 197. 
 
 appellant may direct what shall be included. 19S, 200. 
 
 practice where it contains improper matter, 199. 
 
 where detective judgment may be affirmed or appeal dismissed, 200, n. 3. 
 
 authentication of, 201. 
 
 authority of appellate tribunal over, 203. 
 
 . 204. 
 certiorari to correct, 216—222, 2S1. 
 
 must be filed within sixty days after bond. 240. 247, n. 2. 
 in case of appeal after term. 251. 
 
 must be filed within thirty days in case of appeals in decedents' estate- 
 matters, 259. 262. 
 in case of assignment of cross-errors, 421. 
 must be filed before appeal can be docketed or advanced, 460. 
 when appellate tribunal will assist party before transcript is filed, 507, 50S. 
 mandamus will lie to compel officer to certify, 516. 
 when it may be withdrawn after dismissal of appeal, 536. 
 rehearing will not be granted to enable parties to secure correction of, 556. 
 
 TRANSFER OF CASES, 
 
 from one appellate tribunal to the other, 73. 
 TRIAL. 
 
 by jury, no right to on appeal, 29, 30. 
 
 without issue, waiver, 352, 6S2. 
 
 1 \ jury, when it may be demanded, 612. 
 
 by jury, waiver of right to, 612, 6S5. 
 
 mode of, discretionary power of court, 615. 
 
 conduct of, discretionary power of court. 616. 
 
 by jury, denial of. where right exists is prejudicial error, 654. 
 
 'net of. when errors are prejudicial, 671. 
 mode of, how affected by doctrine of waiver, 690. 
 
 TRIAL COURT, 
 
 appeal generally removes case entirely from, 541, 543, 544. 
 
 appeal from interlocutory order does not completely oust jurisdiction of, 
 
 542. 
 independent and collateral matters not taken from jurisdiction of trial 
 
 court by appeal, 545. 
 mav amend record after appeal. 548. 
 can not make entirely new record after appeal. ^49. 
 must obey mandate of appellate tribunal. 570. 
 must enter judgment or proceed a- directed by appellate tribunal, 570. 577.
 
 INDEX. 871 
 
 [References ar, to Sections.] 
 TRIAL COURT— continued. 
 
 is bound by the law of the case, 578. 
 
 its authority ends when case is removed by appeal and revives only when 
 
 case is remanded, 579. 
 discretionary powers of, 597-62 2. 
 
 presumptions in favor of acts and proceedings of, 709-7:;. 
 duties of judge in regard to bill of exceptions, 79S, 799, 810. 
 should be given an opportunity to review its rulings, 827, 82S. 
 questions for review are generally presented to it by motion for new trial, 
 
 S29. S30. 
 
 TRIAL COURT THEORIES, 
 
 holding parties to, 4S9-503, 612, 627, 630. 
 
 See Theory of the Case. 
 
 V 
 
 VACATION, 
 
 of judgment not caused by appeal, 297. 
 of supersedeas, motion for, 399, 400. 
 of supersedeas, form of motion for, S90. 
 
 VARIANCE, 
 
 may be prevented by amendment of pleadings after verdict, 610, 611. 
 immaterial, may be disregarded, 610, n. 2. 
 
 VENIRE DE NOVO. 
 
 motion for is proper to direct attention to defective verdict, 327, 343. 
 
 does not serve purpose of motion for new trial, 343. 
 
 only reaches defects apparent on face of record, 343. 
 
 when motion for will lie, 75S-760. 
 
 office of motion for, 761. 
 
 time of filing motion for, 762. 
 
 requisites of motion for, 763. 
 
 motion for wilfnot lie where facts are well stated in special finding, 764-766. 
 
 VENUE, 
 
 a party who improperly obtains change of, can not avail himself of the 
 
 error, 627. 
 error in refusing change may be cured by subsequently granting it, 70S. 
 change of, although granted may be presumed to have been waived. 72;. 
 presumption that order as to change was proper, 72;. 
 application for change of, affidavit, rulings and exceptions may be brought 
 
 into record by bill of exceptions. Si 7. 
 error in granting or refusing change is cause for new trial, S48. 
 
 VERDICT, 
 
 defects in are reached by motion for venire de novo. 327. 
 construction of, 342.
 
 g7*2 [NDEX. 
 
 Reft fences arc to Sections.) 
 \ ERDICT— continued. 
 
 rulings on, objections to, 342. 
 specifications of error as to rulings on, 343. 
 when jury may be discharged before, 621. 
 
 clearly right on evidence may render errors in instructions harmless, 643. 
 special, when general instructions are harmless, 645. 
 when erroneous rulings upon are harmless, 652. 
 presumptions in aid of, 724. 
 special, request for, 73S, 739. 
 special, motion for judgment on, 753-756. 
 
 contrary to law or not sustained by sufficient evidence, cause for new trial, 
 s 5-b 
 VIEW, 
 
 court may order or deny in its discretion, 619. 
 
 w 
 
 WAIVER. 
 
 of notice, 145, 146, 286, 426. 
 
 of right to appeal, 150-152, 2S9. 
 
 of failure to give notice in time, 175. 
 
 of failure to file appeal bond, 249, 376. 
 
 of failure to appeal in time, 2S5. 
 
 of errors in criminal cases, 290. 
 
 of objections by going to trial without formation of issues, 352, 470, 482, 
 
 682. 
 of approval of appeal bond, 369, 370, n. 3. 
 by common joinder, 406. 
 In submission by agreement, 426, 427. 
 by tiling brief, 448. 
 of motion to dismiss appeal. 519. 
 
 of jury trial by failing to appear when case is called, 612, n. 3. 
 of jury trial by request to submit a single question to jury, 612. 
 of tort by action c.x contractu, 656. 
 by failing to question remedy in trial court, 65S, 679. 
 of objection that necessary parties are not before the court, 659, n. 2. 
 objections waived by silence or inaction are lost, 674. 
 what is necessary to prevent, 675. 
 defects or irregularities of which a party is excusably ignorant are not 
 
 waii ed, 671 1, 691. 
 of objections to jurisdiction of person by general appearance. 677. 
 of objections to pleadings, 6S0, 688. 
 by failing to demur, 6S1. 
 
 by failing to demand decision on demurrer. 682. 
 of objections to rulings on demurrer, 6S3. 
 of preliminary objections, 6S4.
 
 INDEX. 
 
 [References are to Sec/ions.] 
 W A I V E R— con f hi tied. 
 
 of jury trial by joinder in demurrer to evidence, 6S5. 
 
 of objection to ruling on demurrer to evidence by introducing evidence 
 thereafter, 6S6. 
 
 of motion directing jury to return verdict by afterwards introducing evi- 
 dence, 6S7. 
 
 of objections to pleadings by demurring to evidence, 6S8. 
 
 of objections to admissibility of evidence by demurring to the evidence, 6S9. 
 
 of objections to mode of trial, 690. 
 
 of objections to judge or jurors, 691. 
 
 of objections to rulings on trial bv failure to except and present oppor 
 tunity for review, 692. 
 
 WITHDRAWAL OF APPEARANCE, 
 
 when permitted, generally, 677. 
 
 mistake may be cause for permitting, 678. 
 
 WITNESSES, 
 
 recall of, 617. 
 
 examination of, 618, 743-749. 
 
 separation of, 618. 
 
 number of may be limited, 618. 
 
 WRIT. 
 
 running beyond term is void, and may be first attacked on appeal. 333 
 of mandate, 51 1-5 17, 79S. 
 of prohibition, 518. 
 
 See Injunction; Process; Certiorari. 
 
 WRITTEN INSTRUMENTS, 
 
 notice to produce, 740. 
 
 may be made part of bill of exceptions by reference, SiS. 
 
 YEAR, 
 
 meaning of term in statute, 126.
 
 
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