viding for the organization and election of boards of county commissioners provides for the division of counties into districts, and that a commissioner shall be elected from each district, who shall reside in the district. Section 5732, Rev. St. 1881. In the case of Smith v. State, 24 Ind. 101, it was held that the statute did not require that a commissioner should continue to reside in the district for which he was elected. It is true the statutes are unlike, in this: that boards of county commis. sioners are elected by the vote of the entire county, and not by the vote of the district which they represent, while members of a city council are elected by the votes alone of the voters of their respective wards. But, when they are once elected and enter upon the discharge of their official duties, these duties are such as affect alike all portions of the city, and are in no sense local. As is said of the county commissioner in Smith v. State, supra, when he assumes the duties of his office: "At that time be takes an oath of office, and assumes duties and a jurisdiction coextensive with the limits of the county." So the member of the city council, when he takes his oath of office, assumes duties and a jurisdiction coextensive with the limits of the city. He is not an officer of the ward, but an officer of the entire city. Judgment affirmed.

SMITH et al. v. STATE, to Use of DoWELL, Drainage Commissioner.

(Supreme Court of Indiana. May 11, 1892.) DRAINAGE ASSESSMENT BY SINGLE COMMISSIONER.

1. Drainage Act 1883 provides for an assessment by the drainage commissioners as a body, and fixes the maximum amount that can be collected of each landowner for the construction of

a drain, which assessment, when confirmed by the court, is a lien on the lands assessed. A further provision allows the commissioner in charge to assess the lands benefited, ratably, "upon the amount of benefits as adjudged by the court, such sums of money as may be necessary therefor, not exceeding the whole benefits so adjudged, and require the same to be paid in installments," and to sue in the name of the state to enforce the lien. Held that, in providing for the assessment by the commissioner in charge, the legislature contemplated the possibility that, in constructing a drain, it might not require the whole amount of the assessment made by the commissioners as a body.

2. Where the commissioner in charge sued to enforce his 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 afterwards the clerk, in obedience to a certiorari, certified up a copy of such report, which was properly made a part of the complaint, the defect was thereby cured.

Appeal from circuit court, Grant county; R. T. ST. JOHN, Judge.

Action by the state, for the use of Jesse H. Dowell, commissioner of drainage, against Wesley Smith and others, to enforce assessments for the construction of a drain. From a judgment for plaintiff, defendants appeal. Affirmed.

Geo. W. Harvey and Austin De Wolf, for appellants. Carroll & Dean, for appellee.

v.31N.E.no.4-23

MILLER, J. This was an action by the appellee against the appellants to collect an assessment for the construction of a public drain. The petition for the drain was filed April 29, 1884, while the act of March 8, 1883, was in force, and on the 19th day of June, 1885, the work was ordered, and the appellee, as drainage commissioner, was charged with its construction. As the proceedings for the construction of this drain were pending when the act of April 6, 1885, went into effect, they were within the saving clause of the repealing section of that act, (Elliott's Supp. § 1196,) and the act of 1883 governs the construction of the drain and collection of the assessment, (Claybaugh v. Railway Co., 108 Ind. 262, 9 N. E. Rep. 100; Dunkle v. Herron, 115 Ind. 470, 18 N. E. Rep. 12; Geiger v. Bradley, 117 Ind. 120, 19 N. E. Rep. 760; Bohr v. Neuenschwander, 120 Ind. 449, 22 N. E. Rep. 416.) The appellants demurred to the complaint, their demurrer was overruled, and an answer filed. The cause was tried by the court, and a finding and judgment rendered in favor of the appellee. The sufficiency of the complaint is the only question in the case. Two objections are urged to the complaint:

1. That no copy of the report of the commissioners making the assessment was filed with the complaint. In the form in which the transcript was originally certified to this court, the complaint appeared to be defective in this respect; but since that time the clerk of the circuit court has, in obedience to a certiorari, certified up a copy of the assessment, which was properly made a part of the complaint.

2. That section 4 of the drainage act of 1883 (Elliott's Supp. § 1178) provides that a drainage commissioner may, if he so determine, "bring suit in the name of the state of Indiana, for his use as commissioner of drainage, in any court of competent jurisdiction, to enforce a lien upon any tract or tracts of land for the amount so assessed by him;" but that the assessment which creates the lien upon the land is the assessment made by the commissioners of drainage, as approved or confirmed by the court, and that this act does not authorize the commissioner in charge of the work to sue for the collection of an assessment made by them,-the argument made by appellants being, in brief, that the provision allowing a commissioner of drainage to bring suit was enacted as a part of a previous act, which made it his duty to make the assessment which created the lien, and that, the authority to make the assessment having been transferred from him to the commissioners, this provision, as re-enacted, is without force. Such construction should, if possible, be given a statute as will give force and effect to all its provisions, and bring each part into harmony with the other portions of the act. We are of the opinion that this act is readily susceptible of such construction. Two assessments are spoken of in the act of 1883, one made by the commissioners of drainage as a body. This is the assessment spoken of in sections 1176, 1177, 1179, which fixes the maxi

mum amount that can be collected of each landowner for the construction of the drain, and which, when confirmed by the court, constitutes the lien upon the lands assessed. But it is evident that the legislature contemplated the possibility that it might not require the collection of the whole assessment to pay for the construction of a drain, damages, and incidental expenses. It was consequently provided in section 1178 that the commissioner of drainage in charge of the execution of the work should assess, from time to time, upon the lands benefited, ratably, “upon the amount of benefits as adjudged by the court," such sums of money as may be necessary therefor, not exceeding the whole benefits so adjudged upon any one tract, and require the same to be paid in installments. In a subsequent part of this same section is found the provision which authorizes the commissioner of drainage to bring suit for the amount so assessed by him. It is quite evident that authority was given the commissioner of drainage to sue for only so much of the original assessment as he deemed necessary to complete the work, and pay the costs and incidental expenses. This construction is the one adopted by the appellees, and the complaintshows that both assessments were made, and that the suit is for only so much of the original assessments as the commissioner in charge of the work deemed necessary for its completion. We find no defect or infirmity in the complaint.

Some exceptions are taken to the form of the judgment. In order to be available in this court, specific objections to the form of a judgment must be made in the trial court, and a ruling made in that court. Walter v. Walter, 117 Ind. 247, 20 N. E. Rep. 148; Quill v. Gallivan, 108 Ind. 235, 9 N. E. Rep. 99; Adams v. La Rose, 75 Ind. 471. No objection being made to the form of the judgment in the circuit court, there is nothing before us to decide. Judgment affirmed, with costs.

HAVENS et al. v. GARD et al. (Supreme Court of Indiana. May 11, 1892.) ATTACHMENT-JUDGMENT FOR WANT OF ANSWER.

1. Where an answer denying statements of an affidavit for attachment is on file, even though filed after the jury is sworn, it is not error to deny a motion for judgment on the ground that such affidavit is not denied.

2. Where the verdict is set aside, and a second trial had, and judgment entered on findings by the court, such judgment will not be disturbed on the ground that the jury was not resworn after such answer was filed.

Appeal from circuit court, Tippecanoe county; F. B. EVERETT, Judge.

Attachment proceedings by Elisha Ha. vens and others against Edward Gard and others. From a judgment denying plaintiffs' motion for judgment on the affidavits of attachment, they appeal. Affirmed.

Stubbs & Baird and J. V. Kent, for appellants. Bayless & Guenther, for appellees.

ELLIOTT, C. J. This was a proceeding in attachment. There were several plaintiffs, having distinct causes of action, but the cases were consolidated in one proceeding, and there was one trial. The plaintiffs succeeded upon the main issue, but failed upon the issue joined on the affidavits in attachment. The appellants moved for judgment in the ancillary proceeding upon the ground that, as the statements of the affidavits in attachment were not denied, they were entitled to enforce the attachment. As the record presents the case to us, answers denying the statements of the affidavits were filed before the motion of the appellants was interposed, so that the question is not whether if there had been no answer the motion would have been well taken, but the question is whether, the motion having been filed after the answers were in, there was material error in overruling it. We think it clear that at the time the motion was filed the answers in denial prevented success upon the motion. At that time the motion was not well taken, since there was a direct issue. It is quite doubtful whether the appellants, by submitting the case for trial, did not waive an answer, and treat the statements of the affidavits as controverted. If there was, as is now assumed, no issue, then the court and the parties did a vain and idle thing, inasmuch as they undertook to try a case where there was no controversy. We think the reasonable rule in such cases is to assume that an answer was waived, and an issue impliedly joined. Many analogous cases warrant this conclusion. Buchanan v. Berkshire, etc., Co., 96 Ind. 510, and cases cited; June v. Payne, 107 Ind. 307, 7 N. E. Rep. 370, and 8 N. E. Rep. 556; Purple v. Farrington, 119 Ind. 164, 21 N. E. Rep. 543; Farmers', etc., Co. v. Canada, etc., Co., 127 Ind. 250-254, 26 N. E. Rep. 784, and cases cited. But, however this may be, it is quite clear that there was no error in overruling the motion. If there was error at all, it was in abusing the discretion vested in the court by permitting answers to be filed, so that the point attempted to be made by the appellants is not presented by the record. But, if it were presented, we could not hold that there was an abuse of discretion. This conclusion is so well settled that it is unnecessary to cite authorities.

The position of the appellants that the jury should have been res worn after the answers were filed, if maintainable in any case, is certainly not maintainable in such a case as the one before us. There was no judgment upon the verdict of the jury; for there was a second trial and a finding by the court, upon which the judg. ment from which this appeal is prosecuted was rendered, so that the question whether there was or was not error in failing to res wear the jury before whom the first trial was had is utterly immaterial. We have studied the evidence, but we cannot disturb the finding; for we are unable to say that there is no evidence sustaining the finding of the court.

Judgment affirmed.

KLINGLER V. SMITH et al. (Supreme Court of Indiana. May 11, 1892.) REVIEW ON APPEAL-MATTERS NOT ON RECORD. 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. Rep. 364, affirmed.

On rehearing.

OLDS, J. The record in this case recites that the court overruled the motion of the appellant for a new trial on her cross complaint. We did not refer to this in the original opinion, as we deemed it apparent that it was an error, and, if not an error, it did not aid the appellant; but as our attention is specially called to it on petition for rehearing, and as counsel insist the question as to their right to a new trial on the appellant's cross complaint is presented by the record, we now notice it. The only motion for new trial in the record, as we stated in the original opinion, is a general motion for new trial as to the whole case. The ruling must have been made upon that motion, and the error assigned is the overruling of a motion for a new trial on the cross complaint, but if there was a motion filed by the appellant for new trial as to her cross complaint, and a ruling made upon it, and correctly shown by the record by its recital to that effect, then the motion to that effect is not in the record. There is a diminution of the record, and the motion should have been brought into the record by certiorari. Without the motion in the record, it cannot be considered. There is nothing in the record showing any cause or reason for a new trial as to the cross complaint. Either way the record is construed, there is no question presented for decision. If the only motion filed was for new trial as to the whole case, and there is a clerical error in the record of the rulings, showing the ruling to have been made on a motion for new trial on the cross complaint, there is no proper assignment of error. If, on the other hand, there was a motion for a new trial as to the cross complaint, ruled upon, and assigned as error, then there is no such motion in the record. The petition for rehearing is overruled.

1. Under Rev. St. § 774, providing that any person having a lien on land, otherwise than by judgment, may redeem it from any sale on execution, and that he shall have a lien thereon which he may enforce in a suit to foreclose his dien, a mortgagee from a husband, who redeems the land from a sale on foreclosure of a prior mortgage executed by the husband and his wife, has a lien which he may enforce; and in a suit against the wife she cannot question the validity of the redemption, the holder of the sheriff's certificate having assented thereto, and accepted the money paid him.

2. It is immaterial that title was not alleged to be in the husband, as he is estopped to deny the same.

3. But such acts of the holder of the sheriff's certificate and of the mortgagee do not estop the wife from asserting that the mortgagee is the owner of the land, and that he redeemed it as such.

4. The mortgagee is not estopped from asserting his capacity as such by the facts that his deed is absolute on its face, and that it was recorded as a conveyance rather than as a mortgage.

Appeal from circuit court, Decatur county: J. W. STUDY, Judge.

Suit by John S. Scobey against Mary E. Kiningham. From a judgment sustaining a demurrer to his complaint, plaintiff appeals. Reversed

John S. Scobey, for appellant. Miller & Gavin, for appellee.

ELLIOTT, C. J. The appellant alleges in his complaint that on the 10th day of September, 1888, James Hart obtained a decree of foreclosure against the appellee upon a mortgage executed by her and her husband upon 80 acres of land; that a certified copy of the decree was issued to the sheriff, a sale of the land made by him to Orion K. Thomson for $656, and a certificate issued to the purchaser on the 13th day of October, 1888; that the purchaser assigned the certificate to Frank Thom. son, who paid taxes due on the land to the amount of $31.54; that Benjamin Kiningham on the 10th day of December, 1888, executed a deed for the land to the appellant; that the instrument executed to the appellant, although absolute on its face, was, in fact, a mortgage executed to secure the sum of $500; that the instrument was duly recorded on the 4th day of May, 1889; that on the 8th day of October, 1889, the appellant filed "an affidavit of these facts, with a copy of the instrument executed to him by Kiningham “in due form of law," to redeem the land from the sheriff's sale, and then paid to the clerk the sum of $741.66 in full of the purchase money, with 8 per cent. interest and the taxes paid by Thomson; that the money was accepted by the clerk in redemption of said land; that Thomson, the holder of the sheriff's certificate, made no objection to the redemption by the appellant, but, on the contrary, received the money paid to the clerk; that at the time of paying the money the appellant claimed to redeem the land as a mortgagee; that the appellant's debt is due and unpaid, as is the sum paid by the appellant to redeem the land. The relief sought is a foreclosure of the lien claimed under the redemption made by the appellant.

We think it quite clear that Mrs. Kiningham cannot successfully assert that the redemption by the appellant was not an effective one. If the holder of the certificate was satisfied to accept the money paid to redeem the land, the debtor cannot object that there was no redemption. The question whether there was or was not a valid redemption was settled by the redemptioner and the holder of the sheriff's certificate. Hervey v. Krost, 116 Ind. 268, 19 N. E. Rep. 125. Whether Scobey's interest or estate in the land be regarded as that of a mortgagee or as that of an owner, it is evident that he had a right to redeem; hence he was not a mere volunteer. As he was not a volunteer, and paid

he is seeking to do what the law authorizes, and nothing more. If it be true that he is a mortgagee,-and the admitted facts impress upon him that character,-then it must be true that his redemption was made in that character, and no other. It is evident that, if he had attempted to assert title as absolute owner, equity would, upon the state of facts shown in the complaint, have frustrated the attempt; and therefore, where he comes forward in his true character, free from fraud, and asking what the law awards, he is entitled to the assistance he prays. Either this must be true, or else it must be true that he is remediless, since he cannot be both an owner and a mortgagee. A suitor who has done no wrong cannot, where he has an enforceable right, be denied relief.

It

We find it impossible to escape the conclusion that the appellant effected the redemption from the sale made upon the decree rendered against the appellee and her husband in the capacity of a mortgagee, and not in that of the owner. As the redemption was made by him in the capacity of a mortgagee, the statute gives him a right to bring suit to establish and enforce the lien acquired by virtue of the redemption from the sheriff's sale. Rev. St. § 774.1 He did not redeem as owner, for had he done so the case would be governed by a different provision of the statute. Rev. St. § 770. It is said by appellee's counsel that the complaint is bad because it does not aver that Benjamin Kiningham, the appellant's mortgagor, had title to the land, but we think this position rests upon an undue assumption. The complaint does allege that Kiningham and his wife executed a mortgage to James Hart, and that upon that mortgage Hart obtained a decree of foreclosure. is well settled that a mortgagor is estopped to aver, as against his mortgagee, that he had no title to the land mortgaged. Hill v. Meeker, 23 Conn. 594; Fisher v. Milmine, 94 Ill. 328; Bush v. Person, 18 How. 82. In this instance we have both a mortgage and a decree of foreclosure based upon the mortgage, so that there can be no doubt that the facts pleaded are such as to require the conclusion that, prima facie at least, the mortgagors had title. We cannot do otherwise than decide this case upon the facts alleged in the complaint. We cannot indulge in inferences or presumptions beyond those arising as matter of law upon the admitted facts. We are, indeed, bound to presume that the appellant has acted in good faith, for there is no averment to the contrary. The mere fact that the deed was absolute on its face, although executed as a security for a debt, does not, of itself, warrant the inference of fraud or wrong. What its probative influence would be, when con

1 Section 774 provides substantially that any person having a lien, otherwise than by judg ment, on land sold on execution, may redeem the same from the purchaser at such sale, or from any prior redemptioner; and that if, at the expiration of one year, no one shall have redeemed from him, and his lien remains unforeclosed, he shall retain a lien, and may enforce the same in the suit to foreclose his lien.

1. A complaint to compel an election inpector to certify the result of an election to the circuit court, pursuant to Rev. St. 1881, § 3309, which alleges that the "election was duly and legally held," is not defective for failing to allege that the election board made a certified return of the number of votes cast for each candidate; for, if such return be required, it is presumed, in the absence of a showing to the contrary, that the board did its duty.

2. Rev. St. 1881, § 3309, requires inspectors of elections to make a certified statement of the persons elected, and file the same with the clerk of the circuit court, within 10 days from the day of election. Held, that the filing of such certificate will be compelled by mandate, though there was but one inspector, and he the opposing candidate.

Appeal from circuit court, Fayette county: F. S. SWIFT, Judge.

Action in the name of the state, on the relation of Peter Goder, to compel Edward A. Enos, inspector of elections, to certify and return the result of a town election. There was judgment for plaintiff, and defendant appeals. Affirmed.

Florea & Broaddus, for appellant. Reuben Conner, Wyatt C. Frost, David W. McKee, and Joseph 1. Little, for appellee.

COFFEY, J. On the first Monday of May, 1890, the legal voters of the incorporated town of East Connersville, in Fayette county, held an election for the purpose of electing town officers. At such election the relator, Peter Goder, and one Samuel D. Walker, were opposing candidates for the office of trustee from the Fifth ward in said town. There were 112 votes cast, of which number the relator received 66 and Walker received 46. The appellant acted as the inspector at the election, John M. Lillie as judge, and George M. Williams as the clerk. When the polls closed, the inspector and judge proceeded to canvass the vote, with the result above stated. There were some irregularities in the election, but it is not claimed that any illegal votes were cast, that any one who was entitled to vote was prevented from doing so, or that any fraud intervened; nor is it at all disputed that the relator was duly elected. This action was instituted for the purpose of compelling the appellant, as the inspector of the election, to make out and file with the clerk of the Fayette circuit court the certificate provided for by section 3309, Rev. St. 1881. It is objected to the complaint that it is fatally defective for failing to allege that the election board made a certified return of the number of votes cast for each candidate at such election. The complaint does allege that the election was duly and legally