Appeal from Circuit Court, Johnson County: E. A. McAlpin, Special Judge.

Action by Jesse B. Mefford against David Lamkin, administrator. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Wm. Feathergill and H. M. Swope, for appellant. Miller & Barnett, for appellee.

ROBY, C. J. Action by appellant to set aside final settlement of an estate under the provisions of section 2558, Burns' Ann. St. 1901. It is averred in the complaint that appellant was the sole heir of Martha J. Handy, who departed life March 30, 1900, intestate; that appellee, Lamkin, was appointed administrator of her estate, qualifying and entering upon the discharge of said trust; that on November 8, 1901, he filed his verified final report, by which it was shown that he held for distribution the sum of $475.13, and that he himself and David Devar were the only heirs at law of said decedent; that he took and converted said sum to his own use and that of said Devar; that on December 11, 1901, the court heard and approved said final report; that appellant was not summoned or notified to appear at the hearing, and did not appear thereat, and had no knowledge thereof. The issue was formed by a general denial. Trial and finding for defendant. Motion for new trial overruled, and judgment on the finding.

When the administrator filed his final report showing the balance for distribution, and notice thereof was given in accordance with the statute, the court thereby acquired jurisdiction over the matter of the distribution of such surplus as an incident to final settlement. Jones v. Jones, 115 Ind. 504, 510, 18 N. E. 20; Sherwood v. Thomasson, 124 Ind. 541, 24 N. E. 334; section 2561, Burns' Ann. St. 1901. Upon the statements contained in said report, the administrator procured a judgment which is conclusive, so long as it remains in force. Its effect is the same whether the fund be retained by the administrator and paid out by him, or paid by him to the clerk, as was done in Jones v. Jones, supra, and in the case at bar. The term "final settlement" comprehends a payment of the balance so as to leave nothing to be done to complete the trust. Dufour, Executor, v. Duford et al., 28 Ind. 421. When the case last cited was decided, there was no statute authorizing the payment of moneys into court for distribution, as there is at present. Section 2557, Burns' Ann. St. 1901. The order of distribution is, however, as much a part of the final settlement, where the fund is in the hands of the clerk, as where it is retained by the administrator. In either event the judgment is conclusive against collateral attack and a bar to recovery of a distributive share by an heir omitted therefrom. Carver v. Lewis, Adm'r, 105 Ind. 44, 2 N. E. 714. No substantial basis for the finding and judgment of the court is

76 N.E.-65 1 Superseded by opinion, 79 N.

given. "The hearing of claims to the surplus of an estate is usually very summary and informal." Jones v. Jones, supra. It was clearly enough proven-admitted indeed-that appellees had no legal claim to the surplus, and that the statements relative thereto, contained in the verified final report, were unwarranted. Whether the administrator divided the money between himself and Devar, or procured such division to be made by the conversion is clerk, is immaterial. The equally complete in either event, and for it he is in either event equally responsible.

Judgment reversed, and cause remanded, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent herewith.

MYERS, J. Appellant by his amended complaint in three paragraphs seeks to recover from appellee compensation for receiving persons committed to, and for discharging prisoners from, the jail of Delaware county, Ind. A demurrer was sustained to the first and second paragraphs, and overruled as to the third. Thereafter appellant dismissed the third paragraph, and the court rendered judgment in favor of appellee. The assignment of error based upon the ruling of the court in sustaining appellee's demurrer to the first and second paragraphs of appellant's complaint presents the question here for decision.

Without formally setting forth the several averments of each paragraph of the complaint, we are of the opinion that the facts averred in each of these paragraphs are sufficient to present what is conceded to be the only question in this case, namely: Did the E. 390. Rehearing denied. Transfer denied

appellant, as sheriff of Delaware county, Ind., have the right to demand and have allowed to him as his own, and not as a part of his fixed salary, 25 cents for every person committed to the jail of said county, of which he as sheriff had the control, care, and custody from August 24, 1897, to September 4, 1901, and also 25 cents for each prisoner discharged therefrom? It is the theory of appellee, supported by an ingenious argument, that these charges, although to be paid by the county, are a part of what is designated by our statute (section 6528, Burns' Ann. St. 1901) as "sheriff's costs," and should be treated as a part of what is known as the "sheriff's fund" (section 6530, Burns' Ann. St. 1901), out of which the sheriff's salary (section 6444, Burns' Ann. St. 1901) ought to be paid. (Section 6532, Burns' Ann. St. 1901.) It is the duty of the board of commissioners of every county in this state to cause a jail to be erected and furnished and kept and repaired at the expense of the county. Sections 7833, 8191, 8193, Burns' Ann. St. 1901. The sheriff is the person designated by statute to "take care of the jail and the prisoners therein." Section 7945, Burns' Ann. St. 1901. He is required by himself or by a deputy to keep the jail and be responsible for the manner in which it is kept, and provide food and fuel for the prisoners. Section 8193, Burns' Ann. St. 1901. In this particular case appellant affirms his claim upon the following language of the statute: "For every person committed to jail, to be paid by the county 25 cents; for discharging each prisoner from jail, to be paid by the county 25 cents each." Section 6528, supra.

In the decision of the question now before us, we have to do with the fee and salary act of 1895. Acts 1895, p. 319, c. 145. This act must be construed and read in the light of the statutory law and the decisions of our courts then existing relative to the same subject-matter and presumed to be in the legislative mind at the time of its passage. By the use of these various guides, courts endeavor to determine and carry out the purpose and intention of the Legislature, as expressed by its enactments, and to so construe such enactments as to make them consistent and operative, avoiding, as far as possible, absurd and unjust consequences. Hawthorn v. Board, 5 Ind. App. 280, 30 N. E. 16, 31 N. E. 1124. In Board v. Gresham, 101 Ind. 53, 56, it was held that in order to make a county liable to any of its officers for services it must appear: "(1) A statute fixing the compensation for the services. (2) A law authorizing or making the county liable to pay for such services out of its treasury." It was also held that the only duty resting upon the county in regard to persons committed to jail was the "statutory obligation of providing, furnishing, and maintaining the jail, and paying the sheriff the compensation provided by law for receiving, dis

charging, and boarding them while in his custody." By this decision it clearly appears that our Supreme Court deemed it to be the obligation of the county to the sheriff to pay the compensation provided by statute for receiving and discharging prisoners. In Hawthorn v. Board, supra, this court, following the principle announced in Board v. Gresham, supra, held that a county officer was not entitled to "compensation from the county, unless there is a statute providing that he shall receive from the county the remuneration claimed." The language of the statute then under consideration was as follows: "For every person committed to jail twenty cents; for discharging each prisoner from jail twenty cents." Although, as it will be seen, the statute did not expressly provide for the payment of such fees to the sheriff by the county, yet this court decided that by implication such must have been the intention of the lawmakers, upon the principle of "what is clearly implied in the statute is as effectual as what is expressed," and the county was held liable to the sheriff for such fees.

The question of the county's liability to pay the fees in question, after the passage of the act of 1895, was no longer a subject for judicial construction, for by that act the sheriff is not only authorized to make the charge, but the county is expressly directed to pay the same. It is earnestly insisted that, while the county is required to pay such fees, they are nevertheless the property of the county. In our opinion it was not the intention of the Legislature to create a debt against the county, as here exhibited, and require the county to pay it, and at the same time nullify its liability by providing that the sum thus due and paid shall continue to be the property of the county. There is nothing in the statute to indicate that the phrase "to be paid" was used by our lawmakers in any other sense or should be given any other meaning than that commonly attributed to it. The word "pay" is defined as meaning "to satisfy; to discharge one's obligation to; to make due return to; to compensate; to remunerate; to deliver the amount or value of to the person to whom it is owing.” Webster. The obligation rests upon the county to maintain the jail. The sheriff, by himself or deputy, is responsible for the manner in which the jail is kept. It is made his duty to take care of the prisoners therein. Prior to the act of 1895, for such services his compensation, as declared by decisions of the appellate tribunals of this state, was the fee provided by statute for receiving and dischar ging prisoners. Board v. Gresham, supra; Hawthorn v. Board, supra. Without extending this opinion to any great length. it is sufficient to say that the question here presented has been fully decided by the supreme and this court against appellee's contention. Both courts, notwithstanding the provision of the statute requiring county officers to tax and charge certain fees, and that such fees

not containing any instructions, was signed by attorneys for the appellees; and nothing further relating to instructions appears in the proceedings of that day. The record of the proceedings of the next day is as follows: "Come the jury, and the argument of counsel is heard, and they retire in charge of a sworn officer to deliberate upon and consult of a verdict. Instructions as follows, to wit." Then follows one set of instructions, numbered 1 and 2, not signed by any one, and nothing further concerning them appearing. Immediately after the second of these instructions commences another set of instructions, numbered consecutively from 1 to 12, inclusive. After each one of these instructions is the following: "Given and excepted to at the time by the defendant, this 24th day of September, 1904"; this being signed by attorneys for the defendant as such, and lower down and at the left appears "C. W. Hanley, Judge," each of these memoranda with their signatures being appended to the particular instruction to which it relates. Next is a request, signed by attorneys for the defendant, that "the following instructions" be given, and another request, signed in like manner, that all the instructions be given in writing. There is nothing here relating to the filing of these papers. Immediately after them follow three instructions, numbered consecutively, not signed by any one, and nothing being said by way of memorandum thereto annexed or otherwise relating to them or either of them. Immediately after them is an entry showing the return of the verdict. Twelve days afterward, at the same term, is an entry showing that the parties appeared by counsel, and the defendant "files instructions given in this cause with his exceptions, which instructions and exceptions read as follows." Thereupon follows the same set of 12 instructions, with the same signed memoranda following the instructions severally, as above stated, and immediately after them is the following, without signature: "And which are ordered filed and made part of the record herein, and day is given."

Referring to the provisions of the statute of 1903 (Acts 1903, p. 338, c. 193), not including the provisions relating to oral instructions, which are not here applicable, it will be observed that there was failure in many respects to comply with the statutory requirements. No instructions requested, if any were requested, appear to have been signed by a party or his attorney. The court did not indicate by a memorandum signed by the judge at the close of any set of instructions requested, if any were requested, the numbers of those given and of those refused. No set of instructions given by the court of its own motion, if any were so given, was signed by the judge. No instructions appear to have been filed with the clerk at the close of the instruction of the jury. No exceptions to the giving or refusing of instructions ap

pear to have been taken orally and entered upon the records or minutes of the court, or in writing at the close of the instructions requested, if there were such, or those given by the court of its own motion, if there were such, by an entry by a party or attorney at the close of such instructions of a memorandum dated and signed and setting forth in substance that such party excepted to the giving or the refusing of "each of the above instructions designated by its number." The statute (section 9) provides that no provision thereof shall be so construed as to preclude any matter from being made a part of the record by bill of exceptions under the rules of practice in force at the enactment of this statute, and counsel for the appellant refer to this provision; but it is quite plain that the filing mentioned above, 12 days after the verdict, did not save by bill of exceptions the set of instructions so filed. Besides, it did not appear that these were all the instructions given.

It is claimed that the court erred in the admission of evidence; but what the evidence was which was so admitted is not shown, and the place where it may be found in the record is not indicated. The statement of evidence in the appellant's brief does not sufficiently comply with the requirement of the rule that, if the insufficiency of the evidence to sustain the verdict or finding in fact or in law is assigned, the statement in the appellant's brief shall contain a condensed recital of the evidence in narrative form, so as to present the substance clearly and concisely. The evidence covers more than 150 typewritten pages of the record. The statement in the brief relating to the evidence covers about two printed pages, and consists of some numbered statements of conclusions of counsel as to what the evidence shows, and not of such a recital of evidence itself as the rule requires. Judgment affirmed

(37 Ind. App. 371)

GRAND LODGE A. O. U. W. OF INDIANA
V. HALL. (No. 5,404.)
(Appellate Court of Indiana, Division No. 2.
Feb. 20, 1906.)

INSURANCE-BENEFICIAL ASSOCIATIONS-AC-
TIONS-PLEADING.

In an action on a beneficiary certificate, the complaint must show the performance of every condition by the insured and the beneficiary; an allegation of performance by the beneficiary being insufficient.

Appeal from Circuit Court, Warrick County; E. M. Swan, Judge.

Action by Sue R. Hall against the Grand Lodge of the Ancient Order of United Workmen of Indiana. From a judgment in favor of plaintiff, defendant appeals. Reversed.

C. L. Wedding, for appellant. W. M. Waldschmidt, for appellee.