6. Where action is brought on a note, and to foreclose a mortgage, failure to establish his rights under such mortgage does not interfere with plaintiff's right to enforce collection of the note, and to that end he may proceed by attach- ment or garnishment. COFFEY, J., dissenting. Jaseph v. People's Sav. Bank, (Ind. Sup.) 31 N. E. 524.
7. Plaintiff alleged that defendant agreed as agent to purchase for him a number of shares in a mining company. The first count of his complaint sought a recovery of the purchase price of the stock, based on a rescission of the contract, because of a fraudulent performance thereof by defendant. The second count was based on an affirmance of the contract, and sought to recover damages sustained by reason of the false representations as to the value of the stock. Evidence was given in support of both counts, and the court submitted to the jury the action embraced in the second, and re- fused to submit the first, count. Held that, though the two causes of action were incon- sistent, and but one could have been submitted to the jury, plaintiff had the right to elect on which count he would stand.-Mayo v. Knowl- ton, (N. Y. App.) 31 N. E. 985.
ADJOINING LAND-OWNERS. See, also, "Boundaries."
Rights in natural gas, see "Natural Gas." "Shooting" gas wells, see "Nuisance," 3. Trespass by contractor's servants, see "Negli- gence," 3.
ADVERSE POSSESSION.
See, also, "Easements," 2-4.
By cotenant, see "Tenancy in Common and Joint Tenancy."
1. Where land was wild and unfenced, and defendant's adverse possession was in dispute, a finding in favor of plaintiff will not be disturbed on appeal.-Sinn v. King, (Ind. Sup.) 31 N. E. 48. 2. In the trial of title to land, where defend- ant pleaded adverse possession, the fact that he had, within the period of limitation, offered to purchase plaintiff's claim of title, is not conclu- sive of his want of title on which to base his claim.-Warren v. Bowdran, (Mass.) 31 N. E. Good faith and belief of occupant.
3. Where defendant has been in adverse and continuous possession for 20 years, the limitation under Pub. St. c. 196, § 1, will run in his favor, and it is immaterial whether or not he honestly believed he had a right to hold the land. Liv- ingston v. Iron Co., 9 Wend. 511, distinguished. -Warren v. Bowdran, (Mass.) 31 N. E. 300. Necessity of coupling possession with payment of taxes.
4. Under Rev. St. 1874, c. 83, § 7, which pro- vides that, whenever a person having color of title made in good faith to vacant land shall pay taxes thereon for seven successive years, he shall be deemed the legal owner, it is necessary for the holder of such title to obtain possession of the land before he can assert the bar of the statute.
Right of support by party wall-Re--Gage v. Smith, (Ill. Sup.) 31 N. E. 430. moval of support. Color of title.
A person is liable, in an action by another possessing an easement for support by a party wall resting partly on the land of each, for dam- ages resulting from the removal of that support by persons doing work on his property which he had employed them to do.-Briggs v. Klosse, (Ind. App.) 81 N. E. 208.
Administration.
See "Executors and Administrators."
See "Marine Insurance;" "Seamen;" "Ship- ping."
In foreign state-Filing record.
1. Under Rev. St. 1881, § 829, providing that, on filing in a circuit court of this state a transcript of the record of a legal adoption in another state, the person adopted shall have the same rights as if originally adopted in this state, the rights of a person so adopted may be enforced though the transcript was filed aft- er his majority, and after the death of the adopting parties.-Markover v. Krauss, (Ind. Sup.) 31 N. E. 1047.
5. The fact that land was misdescribed in proceedings for its sale to pay a decedent's debts, and in the administrator's deed, did not interfere with the operation of the statute, where the pur- chasers took possession of the land which should have been sold.-Irey v. Mater, (Ind. Sup.) 31 N. E. 69.
6. A parol partition between tenants in com- mon, followed by possession in conformity there- with, does not give each cotenant color of title to the entire fee of the part held by him.-Sontag v. Bigelow, (Ill. Sup.) 31 N. E. 674. Effect-Title acquired.
7. The title acquired by open, notorious, ex- clusive, uninterrupted, and adverse possession of land for 20 years, without color of title, will confer a complete title, equal in all respects to a conveyance in fee.-Irey v. Mater, (Ind. Sup.) 31 N. E. 69.
For new trial, see "New Trial," 5, 6. For order of publication, see "Writs," 3. 4. Sufficiency, see "Taxation," 16, 17. Before whom oath taken.
The fact that the city attorney who filed the original petition was named "Joseph E. Paden," and the notary who afterwards adminis tered the oath to the commissioners_to_levy a special assessment was named "J. E. Paden," is not sufficient to show, on writ of error, that the person acting as notary was then acting as attorney in the case.-Linck v. City of Litchfield, (Ill. Sup.) 31 N. E. 123.
2. Elliott, Supp. § 423, provides that if a man marry a second wife, and has by her no children, but has children alive by a former wife, the fee in his lands shall, on his death, vest in such children, subject to a life estate in the widow; and section 29 provides that an adopted child shall receive all the rights and interests in the estate of the adopting father and mother, as if he were their natural heir. Held, that a person adopted by decedent and his first wife is in the position of their natural See "Principal and Agent." heir, and inherits the adopting father's land, subject to the life estate of the second wife. Olds and Coffey, JJ., dissenting.-Markover v. Krauss, (Ind. Sup.) 31 N. E. 1047.
Alcoholic Liquors.
See "Intoxicating Liquors."
See "Descent and Distribution." 3.
Of constitution, see "Constitutional Law," 1. Of judgment, see "Judgment," 23. Of pleading, see "Pleading," 12-14. Of return, see "Writs," 2.
and his expenses and disbursements in examin- ing the title, which he alleges to be defective, where such sums do not amount to $500, as such an action does not affect the title to real property or an interest therein, within the mean- ing of Code Civil Proc. § 191, conferring juris- diction on the court of appeals. - Miele v. De- perino, (N. Y. App.) 31 N. E. 1047.
4. The court of appeals has no jurisdiction
Killed on track, see "Railroad Companies," 21- of an appeal in an action to recover back earnest
Shipment of, see "Carriers," 2-5.
Restraining hogs from running at large. 1. Rev. St. 84848, as originally enacted, provided that a lawful partition fence should be such as was sufficient to inclose and restrain "sheep," unless the parties should agree to build a fence to restrain or inclose only "horses, mules, or cattle." Held that, so far as "hogs" were concerned, the statute did not change the common law requiring the owners of domestic animals to keep them within their own in- closures. Endere v. McDonald, (Ind. App.) 31
2. Act of March 7, 1883, (Sess. Laws, p. 148,) relating to the liability of a township for sheep killed therein, (section 7,) provides that the claimant must make a report in writing to the township trustee, under oath, showing the number injured and killed, and the damages resulting therefrom. Held, that the statutory requirement is mandatory, and a mere verbal report, even though the trustee told claimant at the time that nothing more was required, would not entitle a recovery, or estop the township to deny the sufficiency of the report.Abell v. Prairie Civil Tp. of Henry County, (Ind. App.) 81 N. E. 477.
Appealable judgments and orders.
1. Where the superior court has jurisdiction of the cause of action and of the parties, a plea to a transitory action that the writ was brought in the wrong county is not a plea to the jurisdic-
tion, but a plea in abatement; and, as provided by
Pub. St. c. 152, § 10, and Id. c. 153, § 8, the deci- sion of a justice of the superior court thereon is final, whether a question of law or fact.-Guild v. Bonnemort, (Mass.) 31 N. E. 645.
2. An order of a judge in vacation, dissolving a temporary injunction, is not appealable, since such an order, even though the bill prays for no relief except an injunction, is not a final disposi- tion of the suit.-Greve v. Goodson, (Ill. Sup.) 81 N. E. 677.
Jurisdictional amount.
3. The court of appeals has no jurisdiction of an appeal in an action to recover back earnest money paid by a vendee in a land contract,
money paid by a vendee in a land contract, and his expenses and disbursements in examin- ing the title, by the fact that the contract pro- vided for the immediate payment of the rents to the vendee, and that such rents and the sums paid out by him exceeded $500, since the vendee cannot rescind the contract, and at the same time claim the benefits to which he would be entitled only if it were performed.-Miele v. Deperino, (N. Y. App.) 31 N. E. 1047.
5. Where the complaint states substantially the same cause of action in different paragraphs the jurisdiction of the appeal is determined, not by the sum of the demands in the different para- graphs, but by the actual amount in controversy. -Keadle v. Siddens, (Ind. Sup.) 31 N. E. 362.
6. In determining the amount in controversy, the appellate court cannot look to the sufficiency of the pleadings.-Williamson v. Brandenberg, (Ind. App.) 31 N. E. 369.
7. Where a complaint for personal damages contained three paragraphs, each demanding sep- arate damages, in the sum of $5,000, and a de- murrer was sustained to the second and third paragraphs, and a conditional verdict returned, assessing damages on the first at $500, the su- preme court, and not the appellate court, has jurisdiction on appeal, the amount in controversy not being limited to the amount of the verdict, and being liable to exceed $1,000.-Flora v. Rus- sell, (Ind. App.) 31 N. E. 936.
From justice of the peace.
8. Rev. St. § 632, gives a right of appeal from a justice of the peace, except in actions where the amount involved does not exceed $50, such exception not to prohibit an appeal in cases "involving the validity of an ordinance." Held, where defendant was acquitted before a justice on a charge of violating a penal ordinance, and the only question involved was his guilt or inno- cence, and the amount demanded in the com- plaint was $20, that the prosecution could not appeal on the ground of the invalidity of the or dinance, the acquittal leaving such ordinance un- affected by the litigation.-Town of North Man- chester v. Oustal, (Ind. Sup.) 31 N. E. 450. Appeal from probate court.
9. Kev. St. 1891, c. 37, § 220, provides that probate courts shall have original jurisdiction in regard to the appointment of conservators. Sec- tion 226, Id., provides for appeals from judg- ments of the probate courts to the circuit courts, "and upon such an appeal the case shall be tried de novo." Held, that where an appeal was taken from a judgment declaring a person insane, but not appointing a conservator, and the circuit court also found him insane, the circuit court had jurisdiction to appoint a conservator for his es- MAGRUDER, C. J., and BAILEY, J., dissent-
ing.-Snyder v. Snyder, (Ill. Sup.) 31 Ñ. E. 303.
10. Where an appeal is taken in the term at which the judgment was rendered, notice is not necessary.-Wilson v. Bennett, (Ind. Sup.) 31 N. E. 184.
11. Failure to notify coparties against whom judgment was rendered below of an appeal is ground for dismissal.-Brown v. Trexler, (Ind. Sup.) 81 N. E. 572. Bond.
12. Under Pub. St. o. 161, § 104, which pro- vides that any bond required in a civil suit may
be executed by any person other than the party, and may be approved as if executed by such party, if it appears to the magistrate approving it that there is good reason why the same is not signed by such party, a bond given by a town, on ap. peal, and signed by one of its selectmen as prin- cipal, and by two other selectmen as sureties, is authorized by the statute. -Inhabitants of Wel- lesley v. Washburn, (Mass.) 31 N. E. 8.
13. Where the magistrate's certificate fails to set forth "good reason" shown, it is sufficient if the record show the petitioner to be a town, and that there was a waiver by respondent's appear- ance to the petition.-Inhabitants of Wellesley v Washburn, (Mass.) 81 N. E. 8.
14. Where, after a judgment for plaintiff and the overruling of a motion for a new trial, de- fendants pray an appeal, and afterwards, during the same term, file in open court an appeal bond, which is then approved, the appeal will be re- garded as properly taken, though there may have been an irregularity in not naming the sureties on the bond at the time of praying the appeal. -Wilson v. Bennett, (Ind. Sup.) 31 N. E. 184.
15. Rev. St. 1891, c. 79, § 69, providing that no appeal from a justice of the peace shall be dismissed for any informality in the appeal bond, and allowing a party to amend, has no applica- tion where a motion is made to dismiss an ap- peal in an action of forcible entry and detainer on the ground that the appellant had failed to comply with Rev. St. 1891, c. 57, § 19, in not having the amount of the bond fixed by the jus- tice.-Fairbank v. Streeter, (Ill. Sup.) 31 N. E.
Parties-Appeal by commonwealth.
16. Where the commonwealth is the only par- ty defendant, an appeal from a judgment for the plaintiff should be taken in the name of the com- monwealth, and not in that of the attorney gen Commonwealth, eral.-Boston & A. R. Co. v (Mass.) 31 N. E. 696. Assignment of errors.
17. Refusal to strike out part of a paragraph in a complaint cannot be assigned as error.- Garn v. Working, (Ind. App.) 31 N. E. 821.
18. Where the refusal of a new trial is the only error assigned, appellant cannot secure a re- versal on the ground of excessive damages. -Fike ▼. Davis, (Ind. App.) 31 N. E. 553.
24. Where the motion for a new trial merely gives, as one of the reasons therefor, that the court erred in refusing to give certain instruc- tions, and appellants in their brief merely reiter. ate the charge, without any argument in support thereof, the alleged error will not be considered, since this is not a compliance with rule 26 of the supreme court.-Eppert v. Hall, (Ind. Sup.) 31 N. E. 74.
25. Where a bill of exceptions is taken solely for the purpose of incorporating the stenographer's report in the record, the original bill, rather than a transcript, may be certified on appeal.- Falvey v. Jackson, (Ind. Sup.) 31 N. E. 531.
26. Where the record on appeal fails to show that the bill of exceptions was ever filed in the office of the clerk of the circuit court, the bill is not properly in the record.-Board Com'rs Hun- tington County v. Huffman, (Ind. Sup.) 31 N. E. 570.
27. A motion must be brought into the ree ord by transcription, and a recital by the clerk that the motion is filed is insufficient.-Louis- ville, N. A. & C. Ry. Co. v. Shanks, (Ind. Sup.) 31 N. E. 1111.
28. Where what purports to be a bill of excep. tions saving a ruling on a motion to suppress a deposition is copied into the transcript, but there is nothing to show that it was ever filed, it does not constitute a part of the record, and the rul- ing cannot be considered on appeal.-Green v. Dyer, (Ind. App.) 31 N. E. 558.
29. Copying the instructions into the motion for new trial does not constitute them part of the record. Henley v. Bronnenberg, (Ind. App.) 31 N. E. 583.
30. Where the commissioner in charge sued to enforce a drainage assessment, and his complaint, as it appeared in the original transcript on appeal, was defective, in not having filed with it a copy of the report of the commissioners, but after- wards the clerk, in obedience to a certiorari, certified up a copy of such report, which was properly made a part of the complaint, the de- fect was thereby cured.-Smith v. State, (Ind. Sup.) 31 N. E. 353.
On appeal from county commis- sioners.
31. Rev. St. § 5774, provides that, within 20 19. Failure to name all the parties appellant days after filing the appeal bond, on an appeal In an assignment of errors is ground for dis- from the board of county commissioners, the missal. 30 N. E. 418, affirmed.-Brown v. Trex-auditor shall make a complete transcript of the ler, (Ind. Sup.) 81 N. E. 572.
20. In an appeal from an award or order of the board of claims, it is unnecessary to serve and file exceptions if the questions desired to be raised are specified in the notice of appeal.-Col- man v. State, (N. Y. App) 31 N
21. In an action for libel published in a cer- tain paper there was a general denial in the answer, and plaintiff gave evidence which he claimed tended to prove that the paper was pub- lished by defendant. At the close of plaintiff's case the record stated that defendant made "a formal motion to dismiss," and, after all the evidence was in, he "moved to dismiss the com- plaint on the whole proof." Held, that an ex- ception to the denial of his motion did not pre- sent for review the question whether there was proof of publication by defendant, as the objec- Marx v tion should have been pointed out. Press Pub. Co., (N. Y. App.) 31 N. E. 918. Briefs.
22. A brief which points out the questions for decision on appeal, but which contains neither argument nor statement of the infirmity of the ruling relied on for a reversal, is insufficient. Acra v. Conforth, (Ind. App.) 31 N. E. 212.
23. Where appellant's brief suggests no rea- sons or grounds in support of his bare assertion of error, contains no argument, and cites no au- thorities, the judgment will be affirmed. -Bounel v. Shirley, (Ind. Sup.) 31 N. E. 64.
proceedings before such board, and deliver the same, with all the papers filed in the proceeding, and the appeal bond, to the clerk of the circuit court to which the appeal is taken. Held that, where the auditor, on such an appeal, delayed filing the transcript and papers until the expira- tion of the statutory period, the appellant could, on motion, supply them to the circuit court after the appeal was taken. - Holman v. Robbins, (Ind. App.) 31 N. E. 863. Hearing.
32. Under Rev. St. 1881, § 653, which pro- vides that appeals shall be docketed in the or der in which transcripts are filed, and shall be heard in the same order, unless the court for good cause shall direct otherwise, the advance ment of a cause on the docket is within the discretion of the court, and cannot be claimed as of right.-Parker v. State, (Ind. Sup.) 31 N. E. 1114.
is final.-Doherty v. O'Callaghan, (Mass.) 31 N. | where the adjudication was found by the trial
34. Where an order of reversal by the general term did not show that it was made on the facts, and counsel, on appeal to the court of appeals, did not apply for a postponement pending appeal, al- though advised on the argument that the re- versal would be presumed to be on the law only, to sustain which some error of law must appear, he must be taken to have elected to have the ap- peal decided on the questions of law, and is there- fore concluded from applying for a reargument on an amended order of the general term pro- cured after the decision by the court of appeals. -Cudahy v. Rhinehardt, (N. Y. App.) 31 N. E. 444.
Appeal from justice court
court, and was not excepted to.-Ashton v. City of Rochester, (N. Y. App.) 31 N. E. 334. Discretion of trial court.
43. The refusal of the trial court to set aside an agreement as to judgment on a reported case is not reviewable on appeal, being a matter of dis- cretion.-Stone v. St. Louis Stamping Co., (Mass.) 31 N. E. 654.
44. Where a number of objections are filed to the entry of judgment for delinquent taxes, and the county court sustains the objections gener. ally, and the bill of exceptions fails to preserve all the evidence, it will be presumed, on writ of error, that there was evidence sufficient to sus- Amend-tain some of the objections.-People v. Stone, (Ill. Sup.) 31 N. E. 502.
45. On appeal on a judgment roll alone, un- 35. Where an action begun before a justice der Code Civil Proc. 88 994, 997, without a case of the peace is appealed to the court of common containing any of the evidence, where the find- pleas, the latter court has no power to substi-ings of fact do not justify the conclusion of law tute, by amendment, another cause of action, based thereon, the court of appeals will not not within the jurisdiction of a justice of presume, for the purpose of upholding the judg- the peace, though it is within the original juris- ment, that there was evidence on the trial suffi- diction of the court of common pleas, unless de cient to justify other findings of fact, which fendant consents to the substitution, or waives would support the conclusion of law, as, on his right to object to the action of the court.- such appeal, the court can know nothing of the Van Dyke v. Rule, (Ohio Sup.) 31 N. E. 882. evidence, except as it is embodied in the find- ings of fact. Stoddard v. Whiting, 46 N. Y. 627, approved. Dicta in Chubbuck V. Vernam, 42 N. Y. 432; Kellogg v. Thompson, 66 N. Y. 88; Murray v. Marshall, 94 N. Y. 617; Gardiner v. Schwab, 17 N. E. 732, 110 N. Y. 650,-dis- approved.-Rochester Lantern Co. v. Stiles & Parker Press Co., (N. Y. App.) 31 N. E. 1018.
36. The jury's finding on an issue of fact is not reviewable on appeal if no motion_for_a new trial was made.-Cincinnati, H. & D. R. Co. v. Kassen, (Ohio Sup.) 31 N. E. 282. Objection not raised below.
37 In an action against a railroad company for personal injuries alleged to have been caused by the company's negligence, the want of direct proof that the defendant was operating the rail- road, and that the men who caused the accident were in its service, is no ground for reversal, when no objection on that ground is made before the verdict is returned, and the defendant's pos- session of the road is assumed in its own in- structions. 39 Ill. App. 649, affirmed. -Lake Erie & W. R. Co. v. Wills, (Ill. Sup.) 31 N. E. 122.
46. Where the record, outside the bill of ex- ceptions and the clerk's certificate, shows a cer- tain person to have been appointed and sworn as official reporter, and there is no showing to the contrary, it will be presumed that he was so ap- pointed and sworn.-Garn v. Working, (Ind. App.) 31 N. E. 821.
47. In an action on an insurance policy, the condition of which against obtaining other in- surance without the consent of the company had been broken, a demurrer to a reply, alleg- ing facts as a waiver of such breach, was sus- tained. Held that, since the trial court, by sus- 88. The fact that commissioners appointed to taining the demurrer, held that the facts plead- levy a special tax are sworn before a notary pub-ed, even if proven, would not constitute a waiv lic, who is also the city attorney in charge of the proceeding, does not render the proceedings in- valid, when objection on that account is made for the first time in the supreme court, since an affidavit taken before a notary, who is also at- torney in the cause, is merely voidable, and must be objected to promptly.-Linck v. City of Litchfield, (I11. Sup.) 31 Ñ. E. 123.
89. In an action against a county, the verdict will not be set aside on appeal, as unsupported by the evidence, because it was not shown that the claim was presented to the board of commis- sioners for allowance before bringing the action, where the question was not raised in the trial court.-Board Com'rs Warren County v. Osborn, (Ind. App.) 31 N. E. 541.
40. A general objection to the ruling of the circuit court in giving and refusing instructions will not be considered on appeal, where no spe cific errors in that regard are pointed out. 39 Ill. App. 527, affirmed.-Razor v. Razor, (III. Sup.) 81 N. E. 678.
41. Where, in a proceeding by a writ of entry, the tenants pleaded nul disseisin more than a year after filing disclaimers of part of the prop- erty in suit, the objection that the disclaimers should have been filed as specifications of de- fense with the plea of nul disseisin cannot be postponed till argument on appeal.-Tappan v. Boston Water-Power Co., (Mass.) 31 N. E. 703; Browne. Same. Id.
42. The objection that a former adjudication had not been pleaded, and was therefore not available as a defense, cannot be taken on appeal,
er of the forfeiture, the presumption is that it adhered to such theory throughout the trial, and admitted no evidence and made no findings rela- tive to such alleged facts; and therefore the supreme court will not, in order to sustain the ruling on the demurrer as harmless, look to the findings of fact and conclusions of law for as- surance that there was in fact no waiver of the forfeiture. Replogle v. American Ins. Co., (Ind. Sup.) 31 N. E. 947.
48. Where an affidavit on a motion to set aside a judgment by default alleges that the return to the summons was not signed by the sheriff, but the transcript shows the presence of the sheriff's signature at the time of the de- fault, a presumption will arise, in the absence of clear proof to the contrary, that an amend- ment was lawfully made, so as to have the re- turn declare the truth.-Heaton v. Peterson, (Ind. App.) 31 N. E. 1133.
Weight and sufficiency of evidence.
49. Where an action against a railroad com- pany for injuries received at a highway crossing is tried on the theory that defendant neglect- ed to give the statutory signals, but such negli- gence is not proved, a verdict against defendant will be set aside, though evidence of other neg- ligence was given, such evidence not having been considered by the jury.-Ohio & M. Ry. Co. v. McDaneld, (Ind. App.) 31 N. E. 836.
50. The supreme court will not disturb a judg ment entered on a verdict, on the ground that the testimony of appellee in her own behalf was impeached by proof of inconsistencies and con- tradictions between her testimony in the case at
bar and in another case, her credibility being for the jury.-Eppert v. Hall, (Ind. Sup.) 31 N. E. 74. 51. Where appellant was granted 90 days in which to file a bill of exceptions embracing the evidence, and the record discloses that 98 days elapsed between the order and the approval of the exceptions, the evidence cannot be considered on the appeal, though it is recited generally that the exceptions were approved and filed within the time allowed. -Stames v. Schofield, (Ind. App.) 31 N. E. 480.
52. Where there is evidence tending to show that plaintiff has sustained some damage, a judgment in his favor will not be reversed by the supreme court on the ground that the amount of the judgment is excessive, since the measure of damages is a question of fact upon which, under the practice act, the decision of the Illinois ap- pellate court is final.-Ohio & M. Ry. Co. v. Combs, (Ill. Sup.) 31 N. E. 598.
53. The judgment of a trial court will not be reversed on appeal, where there is evidence tending to sustain the verdict.-Swope v. Paul, (Ind. App.) 31 N. E. 42.
54. A finding of fact by the board of claims, based on a conflict of evidence, or on any evi- dence, is not subject to review on appeal, under Laws 1883, c. 205, §§ 10, 11, as amended by Laws 1884, c. 60, §§ 6, 7, and Laws 1887, c. 507, § 1, which extend only to questions of law arising on the hearing of a claim, or the excess or in- sufficiency of an award, and which declare the practice, as nearly as may be, like that prevail- ing on appeals from courts of record.-Bower v. State, (N. Y. App.) 31 N. E. 894.
55. Where, on a substantial conflict of evi- dence, verdict and judgment are rendered for plaintiff, and a motion for a new trial, on the ground that the verdict is contrary to the evi- dence, is refused, but both the judgment and order are reversed by the general term in an or- der certifying "that the verdict ought to have been directed in favor of the defendant, or a nonsuit granted," and that "the verdict is against the evidence," the order of the general term is a determination as to the weight of the evidence, and is not reviewable by appeal. Chapman v. Comstock, (N. Y. App.) 31 N. E. 876.
Weight and sufficiency of evidence- Conflicting evidence.
56. Where the evidence is conflicting, a judg- ment will not be reversed on the ground that the evidence does not support it.-Sinn v. King, (Ind. Sup.) 31 N. E. 48: First Nat. Bank v. Wil liams, (Ind. App.) Id. 370; Patterson v. Scott, (Ind. Sup.) Id. 433; File v. Springel, Id. 1054.
57. Plaintiff had made a loan to an associa- tion of which M. was treasurer. This loan being about to be paid, plaintiff applied to M., who was also treasurer of a salt company, to find a place for the money, and he agreed to take it for the company. Plaintiff took a pass book from the company, on which the amount was credited in an account marked "Special," and subsequently semiannual interest was credited in the same form and manner as in banks. M. tes- tified that the indebtedness was in the form of an account; that the word "Special" in the pass book was used to distinguish it from an ordinary merchandise account; that there were other ac- counts so marked, for which the consideration was money loaned to the company; and that the money received on special accounts was used in the company's ordinary business of making and selling salt. The company had power to borrow, but was prohibited from carrying on a banking business. Held, that there was a substantial con- flict of evidence as to whether the money was held by defendant as a loan or as a deposit.- Chapman v. Comstock, (N. Y. App.) 31 N. E. 876.
Rulings on evidence.
sert the answers in the record; but, if the inter- rogatories were competent, it will be assumed by the appellate court that the answers were material and relevant, and that their exclusion was harmful.-Patten v. United Life & Acc. Ins. Ass'n, (N. Y. App.) 31 N. E. 342.
59. In an action on a note by the payee against some of the makers, and the administrators of deceased makers, the fact that the court refused to withdraw improper testimony of plaintiff, as against the administrators, is no ground for re- versal of the judgment against the other defend- ants.-Eppert v. Hall, (Ind. Sup.) 31 N. E. 74. Matters not apparent on record.
60. Where the record on appeal fails to set out the second paragraph of a complaint as amended, a judgment overruling a demurrer, on the ground that the complaint fails to state a cause of action, will not be disturbed by the supreme court, even if the first paragraph of the complaint is bad, since such a demurrer can be made only to the complaint as a whole.- Hutchings v. Hay, (Ind. Sup.) 31 N. E. 938.
61. A judgment will not be reversed on appeal because of the exclusion of certain evidence, where such evidence is not set out in the record. Swope v. Paul, (Ind. App.) 31 N. E. 43.
62. Where, in an action on a note alleged to have been assigned to plaintiff, defendant pleads a general denial, and also makes affirmative defense, and the record on appeal shows that the note and assignment were offered in evi- dence, but does not show that they were actual- ly admitted or introduced, a judgment for de- fendant will not be reversed.-National Bank v. Lock, (Ind. Sup.) 31 N. E. 1115.
63. Where the error assigned is the overruling of a motion which does not appear in the record, no question is presented for decision. 29 N. E. 364, affirmed.-Klingler v. Smith, (Ind. Sup.) 31 N. E. 355.
64. The appellate court cannot say whether any error was committed in overruling a motion to tax witness fees against a party, where the record, outside of the said motion, in no way dis- closes in whose behalf the witnesses were sub- poenaed.-Garn v. Working, (Ind. App.) 31 N. E. 821.
65. Where instructions are not contained in the bill of exceptions, and the record does not affirmatively show that they were filed, they will not be considered on appeal.-Henley v. Bronnenberg, (Ind. App.) 81 N. E. 583. the bill of exceptions, or brought into the record by filing them with exceptions indorsed thereon, they will not be considered on appeal. -Stames v. Schofield, (Ind. App.) 31 N. E. 480. Harmless error.
66. Where instructions are not embodied in
67. In an action to redeem land sold under a mortgage, one paragraph of the complaint claimed rents and profits. The answer contained a coun- terclaim. A demurrer to this answer was over- ruled. Held, that plaintiff was not harmed by the ruling, it appearing that the court found specially the facts on which he claimed a right to redeem, and concluded therefrom that he had no such right, and its correctness will not be de- termined.-Ball v. Ball, (Ind. Sup.) 31 N. E. 460.
63. There was nothing Injurious to defendant in the court's refusal to permit it after the issues had been closed to file an affirmative answer, where the record shows that the matters set forth in the answer proposed to be filed were given in evidence and embraced in the verdict.-Lake Erie & W. R. Co. v. Mugg, (Ind. Sup.) 31 N. E. 564.
69. The irregularity of carrying back to the plea an overruled demurrer to the replication is harmless error, where the replication is good, and defendant élects to stand by his demurrer.- Poor v. People, (111. Sup.) 31 N. E. 676.
58. Where error is assigned on the exclusion 70. When the averments of a pleading are by the trial court of the answers to certain in- such as to authorize the recovery of nominal terrogatories, the appellant is not bound to in-damages only, and do not involve the establish-
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