(149 N.E.)

(Appellate Court of Indiana. Oct. 16, 1925.) Bailey v. Humrickhouse (1925; Ind. App.) 148 N. E. 428.

(Appellate Court of Indiana, Division No. 1. anapolis, for appellant.

American Leather, etc., Co. v. Stone (1920) Mary C. WASSMAN v. Jas. P. SMITH et al. 74 Ind. App. 547, 129 N. E. 264.

INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABATEMENT AND REVIVAL.

III. DEFECTS AND OBJECTIONS AS TO
PARTIES AND PROCEEDINGS.

road contractors' sureties in successive bonds, held not error.-Massachusetts Bonding & Insurance Co. v. State, 149 N. E. 377.

50(6) (Ind.App.) Where negligent acts of 39 (III.) Judgment recovered in foreign two persons contribute to injury of another, jurisdiction, after appointment of receiver, both offenders may be sued jointly in a single bound company and not receiver.-Evans v. Il-action.-Rudolph v. Ayde, 149 N. E. 734. linois Surety Co., 149 N. E. 802.

That receiver directed counsel, in trial in foreign jurisdiction on claim, did not make him party to action as representative of insolvent corporation.-Id.

IV. COMMENCEMENT. PROSECUTION,
AND TERMINATION.

64 (Mass.) Date of writ presumed commencement of action.-Krasnow v. Krasnow, 149 N. E. 321.

ADMINISTRATION.

ACCORD AND SATISFACTION. 3(3) (Mass.) Settlement made by real owner of judgment held binding without assent of nominal plaintiff.-Vaughn v. Robbins, 149 N. E. See Executors and Administrators. 677.

(1) (Mass.) Receipt of check of firm, of

which defendant a member, in full of amount See Shipping.
due, held new and valuable consideration.-
Vaughn v. Robbins, 149 N. E. 677.

ACCOUNT.

I. RIGHT OF ACTION AND DEFENSES.

7 (III.) Defendant, undertaking to act for complainant in adjusting his affairs, must perform duties with fidelity, and contrary conduct constitutes actual fraud.-Duncan v. Dazey, 149 N. E. 495.

II. PROCEEDINGS AND RELIEF.

ADMIRALTY.

1. JURISDICTION.

20 (Ohio) Agreement to submit to state compensation act cannot confer jurisdiction on Industrial Commission to grant relief for injuries in maritime employment.-State v. Duffy, 149 N. E. 870.

ADOPTION.

21 (Ohio) Statute authorizing designation of heir creates right of inheritance; designated heir entitled to right of property of child born in lawful wedlock.-Cochrel v. Robinson, 149

15 (11.) Complaint in suit for accounting held not barred by limitation or by laches.-N. E. 871. Duncan v. Dazey, 149 N. E. 495.

17(1) (1.) Allegation of bill for accounting held sufficient to support charge of fraud.Duncan v. Dazey, 149 N. E. 495.

18 (III.) Evidence held to show that defendant fraudulently obtained control of complainant's property for purpose of realizing unwarranted profit therefrom.-Duncan v. Dazey, 149 N. E. 495.

20(3) (11.) Credit for improvements allowable to defendant, in suit for accounting for proceeds of farm and property secured by misrepresentations from complainant.-Duncan v. Dazey, 149 N. E. 495.

Heir designated under statute regarded the same as "issue."-Id.

Designated heir inherits under statute of descent as if child born in lawful wedlock; person designating heir does not die "without issue" within statute.-Id.

ADVERSE POSSESSION.

I. NATURE AND REQUISITES.

(A) Acquisition of Rights by Prescrip

tion in General.

(929)

APPEAL AND ERROR.

with verdict held "final order" to review which error lies without noting of exception.-Central Gas Co. v. Hope Oil Co., 149 N. E. 386.

(E) Nature, Scope, and Effect of Decision.

117 (Mass.) No appeal lies from finding that exceptions were immaterial, frivolous, and intended for delay.-Petition of Bullock, 149 N. E. 604.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
170(2) (III.) Invalidity of statute not first
urged in Supreme Court.-Campbell v. McLain,
149 N. E. 481.

173 (6) (Mass.) Defense of illegality considered, although not pleaded.-Keown & McEvoy v. Verlin, 149 N. E. 115.

trial court need not be considered.-Halstead v. 174 (Ind.App.) Question not presented to American Magnestone Corporation, 149 N. E. 698.

175 (Ind.App.) Questions not within issues not considered.-Hay v. Cummins, 149 N. E. 88.

(B) Objections and Motions, and Rulings

Thereon.

185(1) (Mass.) Consent or waiver cannot confer jurisdiction, and question thereof not overlooked by Supreme Judicial Court, even if not raised.-Holt v. Holt, 149 N. E. 40.

190(2) (Ind.App.) In absence of request to trial court that on refusal of mandatory injuncSee Certiorari; Courts, 207-220; Crimi- tion damages should be assessed, cause will not nal Law, 1013-1202; Exceptions, Bill of. be reversed on appeal for assessment of damFor review of rulings in particular actions or ages. Schwartz v. Holycross, 149 N. E. 699. proceedings, see also the various specific top-questioning admissibility of evidence under gen197(7) (I.) Where no objection at trial

ics.

eral issue such question not considered.-Capps v. National Union Fire Ins. Co., 149 N. E. 247. exclusion of question, where no offer of proof 205 (Mass.) No reversible error shown in 216(3) (Ind.App.) Incompleteness of inwas made.-Malley v. Hart, 149 N. E. 664. fendant tendered no instruction.-Standard Austruction not ground for complaint, where deto Ins. Ass'n v. Reese, 149 N. E. 137.

221 (Ind.App.) Method of proving damages not ground for complaint, in absence of ob149 N. E. 454. jection thereto.-Stone v. Travelers' Ins. Co.,

insurer had paid to coplaintiff owner arising That it did not appear what amount plaintiff from automobile collision held not ground for complaint.-Id.

230

(Ind.App.) Not sufficient for objecoftion to be taken for first time on motion for new trial.-Burlison v. Carl, 149 N. E. 89.

9 (Mass.) Default not reversed on writ error for variance in declaration.-Farnum v. Aronson, 149 N. E. 124.

H. NATURE AND GROUNDS OF APPEL-
LATE JURISDICTION.

23 (111.) Duty of Supreme Court to decline to proceed in case where jurisdiction is wanting.-Bennett v. Bennett, 149 N. E. 292.

232(112) (Ind.App.) Memorandum to appellant's demurrer to complaint held too general to present question to either trial or Appellate Court.-Chicago, I. & L. Ry. Co. v. Ellis, 149 N. E. 909.

(C) Exceptions.

273(12) (Ind.App.) Single exception to order overruling separate motions held sufficient. -Hessong v. Wolfe, 149 N. E. 451.

(D) Motions for New Trial.

III. DECISIONS REVIEWABLE. (D) Finality of Determination. 77(1) (Ind.) Adjudication in partition suit, ordering property sold as being indivisible, not appealable to Supreme Court as from inter-302(3) (Ind.App.) Sustaining of objection locutory judgment; "final judgment."-Ileppe v. Heppe, 149 N. E. 890.

78(3) (III.) Order sustaining demurrer to cross-bill not appealable.-Barber v. Wood, 149 N. E. 231.

78 (3) (1.) Order sustaining demurrer to bill on appeal not final.-Bushman v. Fraser, 149 N. E. 779.

to question, not set out in motion for new trial, held not presented for review.-McEwen v. Continental Ins. Co. of New York, 149 N. E. 89. (E) Cases and Questions Reserved or Certified.

320 (Mass.) Delay in filing report in Supreme Judicial Court held not to have met re84(2) (Ohio) Affirmance by Court of Ap-quirement to enter report "as soon as may peals of common pleas court in refusing judg- be."-Silverstein V. Daniel Russell Boiler

931

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

VI. PARTIES.

327(2) (Ind.App.) Certain defendants held not necessary parties to plaintiff's appeal. Ewbank v. Yellow Cab Co., 149 N. E. 647.

VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (A) Time of Taking Proceedings. 353 (Mass.) Delay in extensions of time for filing report held not, as matter of law, unreasonable. Hall v. College of Physicians and Surgeons, 149 N. E. 675.

(C) Payment of Fees or Costs, and Bonds or Other Securities.

387 (2) (Ind.) Filing of bond within time allowed in connection with appeal from order in statutory proceeding is jurisdictional.-City of New Albany v. Lemon, 149 N. E. 350.

(C) Necessity of Bill of Exceptions, Case, or Statement of Facts.

~554(2) (Ind.App.) Absence of bill of exceptions does not warrant dismissal of appeal where questions not involving bill are presented.-Massachusetts Bonding & Insurance Co. v. State, 149 N. E. 377.

(E) Abstracts of Record.

586(1) (III.) Abstracts of record must be full and complete, and, if not, Supreme Court will not explore record to find errors.-Glassman v. Lescht, 149 N. E. 1.

(F) Making, Form, and Requisites of
Transcript or Return.

607 (2). (Ind.App.) Motions and affidavits made a part thereof are sufficiently in record, where præcipe required clerk to make complete transcript of exceptions.-Hessong v. Wolfe, 149 N. E. 451.

(G) Authentication and Certification.

(E) Entry, Docketing, and Appearance. 432 (Mass.) Appeal held not to have been entered "forthwith," nor as soon as reason-612(2) (Ind.App.) Bill of exceptions and ably practicable after final decree.-Mazzuchelli certificate of judge failing to state that it contains all evidence in case, presents no question v. Seretto, 149 N. E. 707. as to sufficiency of evidence to sustain verdict. -Baltimore & O. R. Co. v. Ranier, 149 N. E. 361.

432 (Mass.) Requirement that appeal be entered in Supreme Judicial Court "as soon as may be" held not satisfied.-West v. Johnson, 149 N. E. 710.

(1) Defects, Objections, Amendment, and Correction.

VIII. EFFECT OF TRANSFER OF CAUSE639(1) (III.) Court will not explore record

OR PROCEEDINGS THEREFOR.

(A) Powers and Proceedings of Lower

Court.

436 (III.) Circuit court without authority to enter any order in cause after appeal perfected.-Watkins v. Dunbar, 149 N. E. 14.

436 (Mass.) Entry of report in Supreme Judicial Court held to divest superior court of jurisdiction. Silverstein v. Daniel Russell Boiler Works, 149 N. E. 705.

Appealing party should not attempt to circumvent movant to dismiss by making speedy entry in Supreme Judicial Court.-Id.

X. RECORD AND

to determine whether master's findings supported by evidence, where not indicated what evidence was heard by master.-Glassman v. Lescht, 149 N. E. 1.

(K) Questions Presented for Review. that injunction 684 (3) (III.) Contention provisions of Prohibition Act invades powers of judiciary not considered on appeal, in absence of question of such character's appearing in case.-State v. Milauskas, 149 N. E. 294.

690 (4) (Ind.App.) No error in admission of exhibit presented, where neither exhibit, abstract, nor synopsis thereof appears in statePROCEEDINGS NOT IN ment of evidence.-Halstead v. American Mag

RECORD.

(A) Matters to be Shown by Record. 499 (3) (Ind.App.) To review ruling, record must show objection taken at time.-Burlison v. Carl, 149 N. E. 89.

500(1) (Ind.App.) No consideration to rulings not shown by record.-Kendall v. Turner, 149 N. E. 458.

501 (3) (Ind.App.) To review ruling, record must show exception taken at time.-Burlison v. Carl, 149 N. É. 89.

511(1) (Ind.App.) Record entry held to show bill of exceptions properly in record.Massachusetts Bonding & Insurance Co. v. State, 149 N. E. 377.

nestone Corporation, 149 N. E. 698.

694(1) (Mass.) Finding must stand, where entire evidence not reported.-Ashton v. Wolstenholme, 149 N. E. 597.

694 (1) (Mass.) Where evidence not reported, Supreme Judicial Court cannot say that findings were wrong.-Barrett v. Duchaine, 149 N. E. 632.

694(1) (Mass.) Findings of master must where evidence_not_reported.-Wooldridge v. Wolf, 149 N. E. 685.

stand,

696(1) (Ind.App.) Bill of exceptions and certificate of judge failing to state that it contains all evidence in case, presents no question as to sufficiency of evidence to sustain verdict. -Baltimore & O. R. Co. v. Ranier, 149 N. E. 361.

701 (3) (Ind.App.) No error in giving instructions if correct under any evidence properly under issues, where bill of exceptions and certificate failed to state that it contained all evidence.-Baltimore & O. R. Co. v. Ranier, Court can149 N. E. 361.

(B) Scope and Contents of Record. 519 (III.) Stipulation not in record or abstract for judgment by Supreme Court, or rewith mand direction to render judgment against appellant's codefendant, if found solely liable to appellee, not considered.-Densby v.706(3) (Ind.App.) Appellate not hold as error overruling motion for new Bartlett, 149 N. E. 591. trial based on newly discovered evidence, when evidence is not in record.-Beaver v. Emry, 149

525 (2) (Ind.App.) Alleged errors in giving of instructions held not reviewable on appeal where it did not appear that instructions giv-N. E. 730. en were signed and filed.-Stone v. Travelers' Ins. Co., 149 N. E. 454.

held not

525 (2) (Ind.App.) Instructions properly brought into record.-Rudolph Ayde, 149 N. E. 734.

v.

536 (Ind.App.) Bill of exceptions containing evidence is part of record proper, and may be looked to in determining whether error was prejudicial.-Pittsburgh, C., C. & St. L. R. Co. v. Rushton, 149 N. E. 652.

(L) Matters Not Apparent of Record. 713 (2) (Ind.App.) Question of misconduct of attorney during examination of jurors must be raised by bill of exceptions.-Klenke v. New York, C. & St. L. R. Co., 149 N. E. 103.

XI. ASSIGNMENT OF ERRORS. 719(1) (III.) Objections to assessment upon which errors are not assigned not considered