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gage, he would accept it in lieu of the old, 108 Ind. 551, 9 N. E. 476. And it follows that

note, etc., and release of record the original mortgage; that relying thereon she executed the note and mortgage in suit; that the same was given without any consideration; and that appellant knew said facts when he took an assignment of said last note.

Appellant contends that he was an innocent, bona fide purchaser, for value, and that the record does not contain any evidence to the contrary. The note was payable in a bank of this state. True, there is no direct and positive evidence in the record to the effect that appellant knew the facts relating to the transaction, and as set up in the answer, but there are circumstances, conditions, facts, and surroundings disclosed by the evidence and record from which the jury might reasonably infer that appellant was not an innocent purchaser, and that he had knowledge of the facts.

We will now briefly examine the instructions given and refused of which appellant complains. Appellant tendered two instructions which the court refused to give. In the first one the court was requested to instruct the jury that there was no direct evidence that appellant knew that there was any defense to the note, or that he purchased it other than in good faith; that the circumstances which would justify such inference must be pointed and emphatic, and must lead directly and irresistibly to the conclusion, etc.; and that circumstances calculated to awaken suspicion merely are not sufflcient. The second instruction asked by appellant was as follows: "No. 2. There is no sufficient evidence in this case tending to show that the plaintiff was not a purchaser in good faith, before maturity, of the note claimed to have been purchased by him of Wilson, and in arriving at your verdict in this case you should consider the plaintiff a bona fide holder and purchaser of said note." Appellant's insistence that it was reversible error to refuse to give these instructions cannot be maintained.

While the first instruction may properly have stated the law as to the facts, yet there was no error in refusing to give it, because the court in its own instructions covered the exact questions there presented. True, the court stated the law in different language than counsel for appellant put it, but, as it was correctly stated, the appellant was not harmed by the refusing of the instruction tendered by him. Where the jury is once fully and clearly instructed upon a given point, the court is not bound to repeat the instructions in different language. Railroad Co. v. Boggs, 101 Ind. 522. The supreme court in many cases have held that, where a proposition of law is once fully and clearly stated to the jury, it need not and ought not to be repeated in subsequent instructions. Insurance Co. v. Buchanan, 100 Ind. 63; Turner v. State, 102 Ind. 425, 1 N. E. 869; Railway Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, and 4 N. E. 908; Railroad Co. v. Jones,

it is not error to refuse to give an instruction which in another form had been substantially given. Logan v. Logan, 77 Ind. 558; Williamson v. Yingling, 93 Ind. 42; Conradt v. Clauve, Id. 476; Barnett v. State, 100 Ind. 171; Cline v. Lindsey, 110 Ind. 337, 11 N. E. 441; Stephenson v. State, 110 Ind. 358, 11 N. E. 360; Railway Co. v. Wright, 115 Ind. 378, 16 N. E. 145, and 17 N. E. 584; Dellaney v. State, 115 Ind. 499, 18 N. E. 49; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, and 22 N. E. 990.

The court correctly refused the second instruction tendered by appellant, for it clearly invaded the province of the jury. The instruction plainly says to the jury that there was no evidence of any character that appellant was not a purchaser in good faith of the note in question, before maturity, and that, arriving at their verdict, they should consider the appellant a bona fide purchaser and holder of the note. This instruction, in substance, directed the jury to return a verdict for appellant. It was a palpable invasion of the right of the jury on a question of fact, and the court correctly refused to give it. It is within the power of the trial court to control or direct a verdict by instructions, only where there is a total absence of evidence upon some essential issue, or where there is no conflict, and the evidence is susceptible of but one inference. Vance v. Vance, 74 Ind. 370; Adams v. Kennedy, 90 Ind. 318; City of New Albany v. Ray, 3 Ind. App. 321, 29 N. E. 611.

As to the instructions given to the jury by the court on its own motion, we are unable to find any reversible error in them. After a careful consideration of them as a whole, we have arrived at the conclusion that they fairly, clearly, and fully state the law applicable to the facts. It appears very much to us, from all the facts and circumstances as disclosed by the record, that appellant and Wilson got appellee in their grasping clutches, and were after the last "pound of flesh." Appellee mortgaged her household effects to secure the payment of $50, borrowed of Wilson as her "lawful agent." She paid and caused to be paid at least $94, about which there is no dispute, being $44 more than the amount borrowed, and yet appellant insists that there is an unpaid balance of $22, in default of the payment of which he became the owner and entitled to the possession of the mortgaged property. To so hold, under the facts in the case, would be a license to money lenders and pawnbrokers to plunder those within their power and uphold their action in the name of the law. Both appellant and Wilson were engaged in loaning money on chattel mortgage security, and their offices were in close proximity to each other. After three juries, with the witnesses and all the facts before them, have passed upon the facts, and resolved them in favor of appellee, and after the trial court, with the same knowledge and op portunities, has by its deliberate judgment said that the verdict was just and should stand, we do not feel at liberty to disturb the judgment

on the facts. Where there is some evidence to support the judgment, the appellate tribunal will not weigh the evidence or disturb the judgment; and, as we have said, there are facts and circumstances upon which the jury might have and doubtless did found their verdict, and hence we cannot review their action. Citation of authorities upon this proposition is wholly unnecessary. One of the reasons assigned for a new trial was that the court erred in admitting certain evidence over appellant's objections. If this was error, it is waived by failure to discuss it. We find no reversible error in the record, and the judgment is affirmed.

PAXTON v. TYLER. (Appellate Court of Indiana. April 19, 1898.) APPEAL-PARTIES.

On appeal from a judgment against an administrator for distribution, he is a necessary party.

Appeal from circuit court, Knox county; G. W. Shaw, Judge.

Petition by Margaret E. Tyler, a distributee of the estate of Wilson M. Tyler, deeeased, asking that a sum of money theretofore paid by her on claims against the estate be paid to her by the administrator. A demurrer to the petition, interposed by Thomas R. Paxton, receiver, was overruled, and judgment was rendered for petitioner, and the receiver appeals. Dismissed.

W. H. De Wolf, for appellant. Townsend & Wilhelm, for appellee.

COMSTOCK, J. John W. Emerson, administrator of the estate of Wilson M. Tyler, deceased, filed in the office of the clerk of the Knox circuit court his final report as such administrator. The estate was insolvent. Pending the approval of said report, the appellee, one of the distributees of said estate, filed her petition, asking that a sum of money theretofore paid by her on certain claims against said estate be paid to her by the administrator. The appellant appeared to the petition, and, upon leave of court, demurred to the petition upon the ground that it did not state sufficient facts. The demurrer was overruled, and appellant excepted, and answered the petition by general denial. At the request of the administrator, appellant, and the appellee, the court made a special finding of facts, and stated conclusions of law thereon. Appellant excepted to the conclusions of law, and appealed to this court. The court stated as conclusions of law: (1) That the final report of the administrator should be approved. (2) That appellee was entitled to have and recover the distributive shares of appellant, of the Fourth National Bank of Cincinnati, Ohio, of the State National Bank of Terre Haute, and of Franklin Clark, paid by her. (3) That the total amount for distribution in the hands of the

administrator was $20,486.22, which should be distributed as follows: To Margaret E. Tyler, $20,398.42; Joseph Peebles, $54.37; J. Shillitto & Co., $30.43; C. H. Debolt, $3. The court rendered judgment approving said final report, and directed distribution in accordance with the finding. The only parties to this appeal are Paxton, appellant, and Margaret E. Tyler, appellee. No attempt has been made to make any other person a party.

"It

Appellee moves to dismiss the appeal upon a number of grounds. We deem it necessary to refer only to the first and second. The first ground of the motion is that the administrator of the estate is not a party to the appeal; second, because the State National Bank of Terre Haute, the Fourth National Bank of Cincinnati, Shillitto & Co., Joseph Peebles, and C. H. Debolt are not parties to the appeal. Appellee claims that they are all necessary parties to the appeal. The judgment is against the administrator, for distribution of the balance in his hands to the parties herein before named. The judgment is appealed from. It does not appear from the record before us that he has any notice of this appeal. Judge Elliott, in his Appellate Procedure (section 138), says: is essential that all persons whose interests may be substantially affected by the judgment on appeal should be made parties to the appeal in some appropriate mode. * 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 cause is carried. But, while all the parties to a joint judgment must be brought in on an 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." In section 140 of the same work, it is said: "While it is safe to affirm that all persons included in a joint judgment must be parties to the appeal, 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 judgment is not strictly a joint one, in which all parties are so affected by it as to be necessary parties to the case on appeal. *** So, where a fund is in court for distribution, the claimants of the fund may in some instances be affected by a judgment awarding part of it to some of their number; and, if so, all affected should be parties, for their rights cannot be justly adjudicated without their presence as parties." Hunderlock v. Mortgage Co., 88 Ind. 139, was a suit upon a note, and to foreclose a mortgage upon real estate given to secure the same. The mortgage was executed by one Snyder to one Mitchell, who transferred the notes and mortgage to John Hunderlock, plaintiff in the action. The Dundee .Mortgage & Trust Company held a junior mortgage on the same land. From the judgment

of the lower court, plaintiff appealed, without making Snyder and his wife parties to the appeal. In passing upon the motion to dismiss the appeal, the supreme court said: "Appellant has moved to dismiss this appeal because of appellee's failure to make Snyder and his wife parties to the proceedings upon it in this court. No case has been cited to support this motion, which is in all respects in point as a precedent, and, so far as we are advised, the precise question presented by this motion is one of first impression in this court. But it is an elementary rule in appellate proceedings that all parties to and affected by the judgment appealed from must be actually or constructively included in the appeal, upon the principle that those only before the appellate court are bound by the appeal, and that hence the inclusion of all the parties to the judgment appealed from is necessary to complete jurisdiction of the latter court. Any other rule might result in the prosecution of two or more appeals from the same judgment, thus requiring the appellate court to review the same proceedings a second or greater number of times, without having at any given time jurisdiction of all the parties to the judgment, and consequently with only limited jurisdiction over the subject-matter of the appeal." In Beatty v. Voris, 138 Ind. 265, 37 N. E. 785, an administrator petitioned for an order to sell land to satisfy an allowed claim secured by a lien on the land; and other creditors, being made parties thereto upon their own motion, filed a cross complaint, to which the claimant was made a party. Issues were joined on the cross complaint. The trial resulted in a judgment therein against the claimant, setting aside and disallowing the claim. The court held that an appeal from such findings was governed by the decedents' estates act, and that the administrator of the decedent was a necessary party to the appeal. See, also, Koons v. Mellett, 121 Ind. 585, 23 N. E. 95; Hutts v. Martin, 131 Ind. 2, 30 N. E. 698; Brown v. Trexler, 132 Ind. 109, 30 N. E. 418, and 31 N. E. 572; Garside v. Wolf, 135 Ind. 93, 34 N. E. 810; Gregory v. Smith, 139 Ind. 53, 38 N. E. 395; Bozeman v. Cale, 139 Ind. 190, 35 N. E. 828; Cooper v. Peterson, 7 Ind. App. 411, 34 N. E. 746. It is clear, under the authorities cited, that the administrator is a necessary party to the appeal. It is not, therefore, necessary to pass upon the other grounds of the motion. Appeal dismissed.

WIESMAN v. GREEN. (Appellate Court of Indiana. April 19, 1898.) APPEAL-BILL OF EXCEPTIONS-TRANSCRIPT

FILING.

A bill of exceptions was presented 2 years and 60 days after judgment and filing of appeal bond, and signed 35 days after presentation, and the transcript was filed in the supreme court 32

days after such signing. Held, that the appeal should be dismissed.

Appeal from circuit court, Scott county; Willard New, Judge.

Action between Michael Wiesman and Thomas W. Green. Judgment against Wiesman, and he appeals. Dismissed.

C. B. Harrod, for appellant. Laurence, Cain & Bundy, for appellee.

PER CURIAM. The record in this case shows that the case was tried and a verdict returned on the 17th day of January, 1895; that on the 18th day of January, 1895, a motion for a new trial was filed, and overruled, and judgment rendered, and on the same day an appeal bond filed. By the judge's

certificate the bill of exceptions was presented to the judge March 19, 1897, and was signed by him April 23, 1897. The transcript was filed in this court May 25, 1897. The appeal is dismissed at appellant's cost.

HAAS v. CITY OF EVANSVILLE. (Appellate Court of Indiana. April 19, 1898.) CITY STREETS-RIGHTS OF ABUTTING OWNERSHARMLESS ERROR.

1. An abutting property owner on a city street has the right to surplus earth and gravel and other materials excavated from the street in front of his property for the purpose of improving the street, subject only to the right of the city to use them in improving other streets under the same general plan of improvement; but he cannot compel the city to remove the materials to a place designated by him, and, if he fails to take steps to remove them within a reasonable time, the city has the right to treat it as abandoned and use it as it sees fit.

2. Where a judgment for defendant is clearly right on the special findings of fact made by the court, it will not be reversed on account of an erroneous ruling on a demurrer to the an

swer.

Appeal from circuit court, Vanderburgh county; J. H. Foster, Judge.

Action by Isaiah Haas against the city of Evansville. From a judgment for defendant, plaintiff appeals. Affirmed.

J. E. Williamson and W. W. Ireland, for appellant. Duncan C. Givens, for appellee.

ROBINSON, C. J. Appellant sued appellee for the value of certain gravel, earth, and stone alleged to have been taken by appellee from certain streets in said city and converted to appellee's use. Appellee answered admitting the taking and pleading facts in justification. A demurrer to this answer was overruled, and a demurrer to the reply sustained. These rulings are assigned as error, and are first discussed by counsel, but, as the same questions are presented by the special finding, they will be considered in that connection.

So far as necessary to determine the questions raised, the special finding shows that appellee contracted for the improvement of

a portion of First street according to certain plans and specifications, the cost of the improvement to be assessed against abutting real estate, except street and alley intersections. By the specifications, the stone, earth, and gravel on the street were to be removed by the contractor to places to be designated by the city officers, except that all the earth claimed by the property owners should be deposited where directed by them. The price paid the contractor for the improvement included the cost of hauling all the material and substance excavated from the street. Before the commencement of the work appellant notified the contractors and board of public works of appellee to haul the materials taken from First street, and deposit the same upon certain lots designated; which demand was refused, the city claiming the right to use the gravel upon other streets, and stating its intention to so use the same. That in improving First street it was necessary to remove such material. That at the time said improvement was made certain other streets were in need of repair, and said contractors, by the direction of the board of public works, refused to deliver said gravel to appellant, but placed the same on such other streets needing repair. That no order or resolution had been made by the common council or said board for the repair of these streets, and the repairs thereof did not form a part of the general plan for the improvement of said First street. That appellant did not offer to remove or haul away any of said material, and the only demand ever made was to have the same hauled and delivered on appellee's premises. That the whole or the greater part of the earth excavated in said street was delivered by the contractors to appellant as demanded. That throughout the progress of said improvement appellee had exclusive possession of said street and material, and was in the possession of said gravel from the time it was excavated until deposited, in other streets. That before bringing suit appellant demanded the gravel, which was refused.

Conceding, without deciding, that the title to the material in question was in appellant, the question presented is, what right or title, as against the city, has an abutting property owner on a public street in a city to surplus earth and gravel and other materials excavated from the street in front of such property for the purpose of improving such street? It is well settled that, the other conditions being the same, the rule of law applicable to the taking of material solely to obtain material to be used elsewhere, and not for the purpose of grading or improving the place from which it is taken, is not applicable to cases where the material is taken for the express purpose of grading or improving the street at that point. The case of Anderson v. Bement, 13 Ind. App. 248, 41 N. E. 547, cited by appellant's counsel,

was an action against a road supervisor for wrongfully digging up and carrying away earth and gravel from within the limits of a highway. It was held the action would lie, but it did not appear that the earth and gravel were removed for the purpose of improving the highway at the place from whence they were taken; and the court expressly holds that the question presented in that case is not whether the supervisor had the right to improve one part of the highway by removing earth and gravel therefrom and depositing such material for the improvement of the highway at another point. In Turner v. Turnpike Co., 71 Ind. 547, cited by appellant's counsel, it is held that a road supervisor has no right to open a gravel pit in a highway, and remove gravel therefrom, to be used on other parts of the highway, and that a turnpike company which has appropriated the highway cannot remove earth and gravel without compensation first made, or assessed and tendered. But in that case the earth and gravel were not removed for the purpose of improving the road at that point. In City of Delphi v. Evans, 36 Ind. 90, it was held that the common council of the city had no power to remove earth and gravel from one street for the purpose of filling up another street which had been ordered improved, where the removal of the earth and gravel was not for the purpose of improving the street from whence removed. It will be seen that in each of the above cases complaint was made because of the removal of earth from a place, not itself being improved, but for the purpose of getting earth to make some other improvement, and this fact clearly distinguishes these cases from the case at bar. The same is true of many of the cases of other courts cited by counsel. Although the fee of a street and a public highway may be in the adjoining lot owner, and as a general proposition he retains absolute control subject only to the public easement, yet the uses to which a street in a city may be put are greater than with respect to ordinary highways in the country. In populous cities the easement is necessarily something more than a mere right of passage. The abutting owner is still the owner of the soil, and retains his exclusive right to all mines, quarries, and the like not inconsistent with the public use, and this use in a city extends to the right to construct sewers, lay water and gas mains, and the like. The city has the right to do all acts necessary to the beneficial use of the street by the public. 1 Dill. Mun. Corp. (3d Ed.) § 688. In some jurisdictions it is held that a city, in im-. proving a street, may take the natural material found within its limits, and use it in making such other improvements as the authorities deem best. Bissell v. Collins, 28 Mich. 277; Viliski v. City of Minneapolis, 40 Minn. 304, 41 N. W. 1050; Huston v. City of Ft. Atkinson, 56 Wis. 350, 14 N. W. 444;

City of New Haven v. Sargent, 38 Conn. 50. See 2 Dill. Mun. Corp. (3d Ed.) § 687, and notes. But in this state the rule is declared to be that the city can remove the natural soil from one street to another only when the improvement of the two streets is embraced in one and the same general plan of improvement. In City of Aurora v. Fox, 78 Ind. 1, suit was brought for the wrongful carrying away of the soil of the street. It appeared from the complaint that the city, without having adopted any general plan for the improvement of the streets, and without having advertised for proposals, and without having entered into a written contract, proceeded to dig up and haul away and appropriate the soil of the street. An instruction was requested to the effect that if it appeared the city had established the grade of the street in question, and that the common council had caused the earth to be removed from the street, and had graded the same according to the plan of the improvement of the street; that the work was done carefully and skillfully, doing no unnecessary injury to the abutting owner; that the owner's lot was not interfered with; and that there was no malice or ill will towards the lot owner in adopting the plan and in making the improvement,-the city was not liable. It was held that the instruction was erroneous in not correctly stating the law on the question of the right of the city to remove the soil from the street being improved, the court saying: "The city had no right to remove the soil unless it was necessary for the improvement of the street, nor had it any right to use the earth taken from the street for any other purpose than that of grading streets forming part of the same general plan of improvement." In another part of the opinion it is said: "Where there is a general plan for the gradation and improvement of highways, intersecting streets and highways in the vicinity of the one improved are to be deemed parts of the same general plan, and soil may be removed from one and placed upon another. * Where the soil is removed from one street to another, it should be shown that the improvement of the two streets was embraced in and formed part of one and the same general plan." There is good reason for the limitation expressed in the rule as declared in the above case. It is well illustrated in the case at bar. By the terms of the contract and specifications the price paid the contractor included the cost of excavating and removing this material from the streets to such places as appellee designated. This cost is assessed against the abutting owner. But the abutting owner is to pay his proportionate part of the whole cost of a certain improvement, and not this cost together with the cost of hauling this material to some remote place in the city for the purpose of improving some other street not contemplated in the care general plan. The basis of

the assessment is the supposed benefits to the abutting property by reason of the particular improvement. If the city had the right to use this material as it did use it, it had the right to sell it or to give it to the contractor as a part of his compensation. When the earth and gravel were dug up, and were no longer used for street purposes, they became the property of the abutting owner, subject only to the right of the city to use them in improving other streets under the same general plan of improvement.

When the abutting owner surrenders such rights as the public easement requires, it may be said that he impliedly agrees to surrender his right to the soil should the municipality need it in repairing or improving that particular way or system of which that is a part, and which the law presumes enhances the value of his property. But this is carrying the rule to its limit, and it will not do to say that he impliedly agreed that his property might be taken by the municipality to enhance the value of the property of some one else. The city could not, as of right, take the material and use it for the purposes it did use it. So that, unless it acquired this right in some way at some stage of the proceedings, the right did not exist, and such taking was wrongful, and a right of action accrued to the injured party.

But we do not think appellant could rest simply upon his right to the possession of the materials, but that he must take possession or show a legal excuse for not doing so. He did demand of the appellant that the material be delivered to him at a certain place.

He

This demand he had no right to make. He did have the right to take the material away, but he had no right to require the city to remove it for him. It must be said from the findings that he knew that the improvement was being made. knew the city had the right to make the excavation for the purpose of improving the street. It was necessary that this material be removed 'n making the improvement. It is true the finding shows the city was in exclusive possession of the street and m'aterial during the progress of the improvement. But this possession was only for the purpose of making the improvement, and did not excuse appellant from taking some steps to assert his own rights. He had the right to go upon the street and haul the material away as soon as it was excavated, and the city must give him a reasonable time, under all the circumstances, to do the work. It cannot be said that the city had converted the material by digging it up. Appellant could have no title until it ceased to be used as a street. It does not appear that appellant was prevented by any one from removing it. He could remove it or abandon it, and as he took no steps to remove it, never offered to remove it, knew it must be removed, and had demanded that the city

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