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Appeal from Circuit Court, Johnson Coun-, given. “The hearing of claims to the surplus ty: E. A, McAlpin, Special Judge.

of an estate is usually very summary and Action by Jesse B. Metford against David informal.” Jones V. Jones, supra. It was Lamkin, administrator. From a judgment in clearly enough proven admitted indeed-that favor of defendant, plaintiff appeals. Re appellees had no legal claim to the surplus, versed.

and that the statements relative thereto, conWm. Feathergill and H. M. Swope, for

tained in the verified final report, were u. appellant Miller & Barnett, for appellee.

warranted. Whether the administrator di

vided the money between himself and Devar, ROBY, C. J. Action by appellant to set

or procured such division to be made by the aside final settlement of an estate under the

clerk, is immaterial. The conversion is provisions of section 2558, Burns' Ann. St.

equally complete in either event, and for it 1901. It is a verred in the complaint that ap he is in either event equally responsible. pellant was the sole heir of Martha J. Handy,

Judgment reversed, and cause remanded, who departed life March 30, 1900, intestate;

with instructions to sustain appellant's mothat appellee, Lamkin, was appointed ad

tion for a new trial, and for further proceedministrator of her estate, qualifying and en- | ings not inconsistent herewith. tering upon the discharge of said trust; that on November 8, 1901, he filed his verified final report, by which it was shown that he

(40 Ind. App. 7)

STARR v. BOARD OF COM'RS OF DELAheld for distribution the sum of $475.13, and

WARE COUNTY. (No. 5,958.)1 that he himself and David Devar were the only heirs at law of said decedent; that he

(Appellate Court of Indiana, Division No. 1.

Feb. 21, 1906.) took and converted said sum to his own use and that of said Devar; that on December

SHERIFF'S FEES – Prison EBS - COMMITMENT

AND DISCHARGE. 11, 1901, the court beard and approved said Under Burns' Ann. St. 1901, 8 6528, providfinal report; that appellant was not sum ing that for every person committed to jail and moned or notified to appear at the hearing,

for each prisoner discharged from jail the sheriff and did not appear thereat, and had no

sball receive 25 cents, to be paid by the county,

and declaring that the fees provided by law shall knowledge thereof. The issue was formed by not belong to or be the property of the sheriff, a general denial. Trial and finding for de but of the county, the sheriff is entitled to refendant. Motion for new trial overruled, and

tain as his own property the fees for prisoners

committed and discharged. judgment on the inding.

[Ed. Note.-For cases in point, see vol. 43, When the administrator filed his final re

Cent. Dig. Sheriffs and Constables, $ 63.) port showing the balance for distribution,

Appeal from Circuit Court, Delaware Counand notice thereof was given in accordance with the statute, the court thereby acquired

ty; Joseph G. Lefier, Judge. jurisdiction over the matter of the distribu

Action by Thomas Starr against the board

of commissioners of Delaware county. tion of such surplus as an incident to final settlement. Jones V. Jones, 115 Ind. 504,

From a judgment for defendants, plaintifr 510, 18 N. E. 20; Sherwood v. Thomasson,

appealed to the Supreme Court, from whence 124 Ind. 541, 24 N. E. 334; section 2561,

the case was transferred to this court, under Burns' Ann. St. 1901. Upon the statements

Act March 12, 1901. Reversed. contained in said report, the administrator Frank Ellis, T. S. Owen, and Thompson & procured a judgment which is conclusive, so Thompson, for appellant. C. L. Medsker, for long as it remains in force. Its effect is the appellee. same whether the fund be retained by the administrator and paid out by him, or paid MYERS, J. Appellant by his amended by him to the clerk, as was done in Jones complaint in three paragraphs seeks to reV. Jones, supra, and in the case at bar. The cover from appellee compensation for receive term "final settlement" comprehends & pay- | ing persons committed to, and for dischar. ment of the balance so as to leave nothing to ging prisoners from, the fall of Delaware be done to complete the trust. Dufour, Ex county, Ind. A demurrer was sustained to ecutor, v. Duford et al., 28 Ind. 421. When the first and second paragraphs, and overthe case last cited was decided, there was no ruled as to the third Thereafter appellant statute authorizing the payment of moneys dismissed the third paragraph, and the court into court for distribution, as there is at rendered judgment in favor of appellee. The present. Section 2557, Burns' Ann. St. 1901. assignment of error based upon the ruling of The order of distribution is, however, as the court in sustaining appellee's demurrer much a part of the final settlement, where to the first and second paragraphs of appelthe fund is in the hands of the clerk, as lant's complaint presents the question here where it is retained by the administrator. for decision. In either event the judgment is conclusive Without formally setting forth the several against collateral attack and a bar to reaverments of each paragraph of the comcovery of a distributive share by an heir plaint, we are of the opinion that the facts omitted therefrom. Carver v. Lewis, Adm'r, averted in each of these paragraphs are suffi105 Ind. 44, 2 N. E. 714. No substantial basis | cient to present what is conceded to be tbn for the finding and judgment of the court is only question in this case, namely: Did the

76 N.E.-65 Superseded by opinion, 79 N. E. 390. Rehearing denied. Transfer denied.

appellant, as sheriff of Delaware county, charging, and boarding them while in his Ind., have the right to demand and have custody." By this decision it clearly appears allowed to him as his own, and not as a part that our Supreme Court deemed it to be the of his fixed salary, 25 cents for every per obligation of the county to the sheriff to pay son committed to the jail of said county, of the compensation provided by statute for rewhich he as sheriff had the control, care, ceiving and discharging prisoners. In Hawand custody from August 24, 1897, to Sep- thorn v. Board, supra, this court, following tember 4, 1901, and also 25 cents for each the principle announced in Board v. Gresham, prisoner discharged therefrom? It is the supra, held that a county officer was not entheory of appellee, supported by an ingeni titled to "compensation from the county, unous argument, that these charges, although less there is a statute providing that he shall to be paid by the county, are a part of what receive from the county the remuneration is designated by our statute (section 6528, claimed." The language of the statute then Burns' Ann, St. 1901) as "sheriff's costs," and under consideration was as follows: "For should be treated as a part of what is known every person committed to jail twenty cents; as the “sheriff's fund” (section 6530, Burns'

for discharging each prisoner from jail twenty Ann. St. 1901), out of which the sheriff's cents." Although, as it will be seen, the salary (section 6444, Burns' Ann. St. 1901)

statute did not expressly provide for the pay. ought to be paid. (Section 6532, Burns' Ann. ment of such fees to the sheriff by the counSt. 1901.) It is the duty of the board of ty, yet this court decided that by implication commissioners of every county in this state such must have been the intention of the to cause a jail to be erected and furnished

lawmakers, upon the principle of "what is and kept and repaired at the expense of the clearly implied in the statute is as effectual county. Sections 7833, 8191, 8193, Burns' as what is expressed," and the county was Ann. St. 1901. The sheriff is the person des held liable to the sheriff for such fees. ignated by statute to “take care .of the jail

The question of the county's liability to and the prisoners therein." Section 7945,

pay the fees in question, after the passage of Burns' Ann. St. 1901. He is required by him the act of 1895, was no longer a subject for self or by a deputy to keep the jail and be judicial construction, for by that act the responsible for the manner in which it is sheriff is not only authorized to make the kept, and provide food and fuel for the pris.

charge, but the county is expressly directed oners. Section 8193, Burns' Ann. St. 1901. to pay the same. It is earnestly insisted In this particular case appellant affirms his that, while the county is required to pay such claim upon the following language of the fees, they are nevertheless the property of statute: "For every person committed to

the county. In our opinion it was not the injail, to be paid by the county 25 cents; for tention of the Legislature to create a debt discharging each prisoner from jail, to be against the county, as here exhibited, and paid by the county 25 cents each.” Section require the county to pay it, and at the same 6528, supra.

time nullify its liability by providing that In the decision of the question now before the sum thus due and paid shall continue us, we have to do with the fee and salary to be the property of the county. There is act of 1895. Acts 1895, p. 319, c. 145. This nothing in the statute to indicate that the act must be construed and read in the light | phrase "to be paid" was used by our lawof the statutory law and the decisions of our makers in any other sense or should be given courts then existing relative to the same any other meaning than that commonly at. subject-matter and presumed to be in the tributed to it. The word "pay" is defined as legislative mind at the time of its passage. meaning "to satisfy ; to discharge one's obliBy the use of these various guides, courts | gation to; to make due return to; to compenendeavor to determine and carry out the pur sate; to remunerate; to deliver the amount pose and intention of the Legislature, as ex. or value of to the person to whom it is owing." pressed by its enactments, and to so construe Webster. The obligation rests upon the county such enactments as to make them consistent to maintain the jail. The sheriff, by himand operative, avoiding, as far as possible, self or deputy, is responsible for the manner absurd and unjust consequences. Hawthorn in which the jail is kept. It is made his V. Board, 5 Ind. App. 280, 30 N. E. 16, 31 duty to take care of the prisoners therein. N. E. 1124. In Board v. Gresham, 101 Ind. Prior to the act of 1895, for such services his 53, 56, it was held that in order to make a compensation, as declared by decisions of the county liable to any of its officers for sery. appellate tribunals of this state, was the fee ices it must appear: “(1) A statute fixing provided by statute for receiving and discharthe compensation for the services. (2) A ging prisoners. Board V. Gresham, supra; law authorizing or making the county liable Hawthorn v. Board, supra. Without extendto pay for such services out of its treasury.” ing this opinion to any great length, it is suffiIt was also held that the only duty resting cient to say that the question here presented upon the county in regard to persons commit has been fully decided by the supreme and ted to jail was the "statutory obligation of this court against appellee's contention. providing, furnishing, and maintaining the Both courts, notwithstanding the provision jail, and paying the sheriff the compensa of the statute requiring county officers to tar tion provided by law for receiving, dis- ' and charge certain fees, and that such fees

shall not belong to such officer, “but shall , 4. APPEAL — PROCEEDINGS NOT IN RECORD —
belong to and be the property of the county," | INSTRUCTIONS.
have held that the clerk of the circuit court

1
day of the commencement of trial appellees filed
og

On appeal the record showed that on the is entitled, as his own, to a per diem for at

a written request that the jury be instructed tending court. State v. Flynn, 161 Ind. 554, in writing and that the court give "the follow69 N. E. 159; Board v. Neely (Ind. App.)

ing special instructions." This request, however,

did not contain any instructions. The record as 75 N. E. 829; Comer v. Board, 32 Ind. App.

to the next day showed that the jury retired 477, 70 N. E. 179. That the auditor, not. with "instructions as follows." Following this withstanding his salary, is entitled to his was a set of instructions, not signed by any per diem of $3 per day for services as one of

one, and with nothing showing whether they

were given or not. Immediately thereafter there the members of the county board of review.

followed another set of instructions, each one Seiler v. State, 160 Ind. 605, 65 N. E. 922, of which bore an indorsement of “Given and ex66 N. E. 946, 67 N. E. 448; Tucker v. State cepted to at the time;" this memoranda being ex rel., 163 Ind. 403, 71 N. E. 140. The sber

signed by the attorneys for appellant and by

the judge. Following these instructions was a iff is entitled, as his individual property, to

request, signed by attorneys for appellant, that his per diem of $2 per day for attending the certain instructions be given and that all the sessions of the circuit court. Board of Com

instructions be given in writing, and following

this was a set of instructions, not signed by any missioners v. Crone (Ind. App.) 75 N. E.

one, with nothing to show whether they were given 826. From these decisions the conclusion or refused. An entry dated 12 days later may be fairly drawn that the word "fees," showed that appellant appeared by counsel and as used in the fee and salary act of 1895,

"filed instructions * * * with exceptions,

which instructions and exceptions read as folmust be construed as fixing a compensation

lows.". Following this was the same set of into be paid by individuals for official serv. structions previously set out as given and exices rendered, and by which a certain fund is

cepted to. Acts 1903, p. 338, c. 193, provides

that all instructions given by the court of its created, out of which the salary, as provided

own motion shall be numbered consecutively by law for the officer rendering the service, and signed by the judge, that all instructions is to be paid. This conclusion upholds the requested shall be signed by the party or his

counsel, and that the party excepting to the complaint.

instructions shall, at the close thereof, enter a Judgment reversed, with instructions to

memorandum setting forth in substance that the lower court to overrule appellee's de the party excepts to each of the instructions murrer to the first and second paragraphs of

designated by its number. It is further pro

vided that all instructions requested, whether complaint.

given or refused, and all instructions given by the court of its own motion, shall be filed at the close of the instruction of the jury. Held,

that the record was such that the action of the (37 Ind. App. 364)

court in giving and refusing instructions poula BAKER v. GOWLAND et al. (No. 5,542.)

not be reviewed.

5. SAME - INCORPORATING INSTRUCTIONS IN (Appellate Court of Indiana, Division No. 1. RECORD. Feb. 20, 1906.)

Under Acts 1903, p. 338, c. 193, providing that 1. APPEAL-RECORD-NECESSITY OF SHOWING

all the instructions requested and given shall be RULING.

filed immediately after the jury is instructed, Where the record on appeal in proceedings

the filing of the instructions given 12 days after for the establishment of a road does not show

trial is not sufficient to enable the court to rethat any ruling was made upon a petition for

view such instructions, under the provisions of the withdrawal of certain names from the pe

section 9, declaring that no provision of the tition for the road, an assignment that the

statute shall be construed as precluding any

matter from being made a part of the record by court erred in not permitting such withdrawals

bill of exceptions under the rules of practice in cannot be considered.

force at the time the statute was enacted. 2. HIGHWAYS – ESTABLISHMENT - VIEWERS'

6. SAME-BRIEFS-NARRATIVE OF EVIDENCE. REPORT.

Under the rule providing that, if the insuffiIn proceedings for the establishment of a

| ciency of the evidence to sustain the verdict or road, a report of viewers to the effect that the

finding is assigned as error, appellant's brief route selected passed through inclosures of more shall contain a condensed recital of the evithan one year's standing on lands of certain

dence in narrative form, a statement of conclupersons and that a good way for the road could

sions of counsel as to what the evidence shows not otherwise be had without departing essen

is not a compliance with the rule. tially from the route petitioned for, showed that the viewers proceeded in accordance with

Appeal from Circuit Court, Jasper County; Burns' Ann. St. 1901, 8 6743, providing that the viewers shall proceed to view the highway to be

Chas. W. Hanley, Judge. located, and, if they shall deem it of public Petition by George W. Gowland and others utility, shall lay it out, not running through for the establishment of a highway, in which any person's inclosure of more than one year's

William P. Baker appeared as remonstrant. standing unless a good way could not otherwise be had without departing from the route peti

From a judgment establishing the highway, tioned for.

Baker appeals. Affirmed. 3. SAME-VERDICT-JUDGMENT.

J. E. Wilson and E. P. Horan, for appelWhere, in proceedings for the establishment of a public road, the route selected by the

lant. Foltz & Spitler, for appellees. · viewers passed through a private inclosure of more than one year's standing, and a jury trial BLACK, P.J. The record of the board of resulted in favor of the establishment of a high

commissioners of Jasper county filed on apway, it was proper for the judgment to follow the verdict and direct the establishment of a

| peal in the court below shows, first, that a road on the route selected.

person named and described as "attorney for remonstrants" filed the petition of 11 , in said cause of the persons, some of the persons, representing that they had signed a | appellees, who fled the application for such petition for a certain highway, described, withdrawals. in that county, and praying to withdraw their It is also assigned that the petition filed names therefrom, and that their names be in this cause does not state facts sufficient to struck therefrom as such petitioners. No constitute a cause of action; but in the appelaction upon this application appears to have lant's brief the petition is not set out, nor been taken by the board. The same person is the substance thereof stated, and no objecnext entered special appearance, for whom tion to it is suggested. is not stated, and moved “to dismiss peti It is next assigned that the court erred in tion," not stating more definitely what peti establishing a public highway on the route tion, and not assigning any ground for the described in the petition and in the viewers' motion, "which is overruled by the board." report upon which the road was ordered es. Thereupon the appellee, described as petition tablished by the board of commissioners “sets ers, presented to the board their petition for out the following, in addition to other mat. the location and establishment of a highway, ters: “The report that said route passes which would pass over the lands of the appel through inclosures of more than one year's lant and of another person. This was signed standing on the lands of George Gowland and by the same persons who signed the petition William P. Baker, and that a good way for to withdraw their names, and by others, in the road cannot otherwise be had without such number that, if the names of the persons departing essentially from the route petitionwho asked the withdrawal of their names ed for; that said George Gowland freely were omitted, there would still be more consented to the establishment of said road, petitioners than the number required by the and said William P. Baker refused to consent statute. It does not appear that the court thereto.'” If this assignment could be rebelow made any ruling upon the matter of garded as relating to any ruling of the court the withdrawal of names, or that it was ask below excepted to, it is sufficient to say that it ed to do so, and no exception to any action or is therein indicated that the viewers proto omission of action thereon appears in the ceeded in accordance with the statute. Secrecord. The board appointed viewers, who at tion 6743, Burns' Ann. St. 1901. the next term presented their report, favor It is next assigned that the court erred in able to the establishment of the road, and establishing said proposed highway through thereupon the appellant appeared and filed the inclosure of William P, Baker of more his remonstrance, and the board appointed than one year's standing. It was proper for reviewers, and at the next terin "the remon the judgment of the court to follow in acstrants" appeared by the attorney who had cordance with the verdict. filed the petition for withdrawal of names, The same may be said of the next assignand presented the report of the reviewers, ment, that the court erred in entering judge showing that they all found that the high ment on the verdict of the jury returned in way would be of public utility, and that two said cause. It has not been pointed out that of them found that the appellant would be any objection was made to the rendition of damaged in the sum of $200, while one of judgment in the form in which it was enthem reported that the benefits accruing to tered. the appellant would be equal to the damages It is finally assigned that the court erred which he would sustain. Upon the motion of in overruling the appellant's motion for a the petitioners for the road, the board set new trial. We are urged to consider some of aside this report and appointed other re the court's instructions to the jury. Passviewers, and at the next term the attorney ing over suggestions of counsel for the appelfor the petitioners filed the report of these re lee concerning the manner in which the obviewers, showing that they found that the jections to these instructions are presented highway would be of public utility, and that in the appellant's brief, we will consider the the benefits would equal the damages sus objection of counsel for the appellees to the tained by the appellant. The appellant's consideration of the instructions because of motion to strike out this report was overrul the condition of the record. While the maned by the board. This report having been ner of presentation of errors relating to inapproved and confirmed, the board ordered structions in briefs on appeal is regulated by the establishment of the highway, and the the rules of this court, the manner of making appellant appealed to the court below, where instructions parts of the record on appeal, the trial of the cause by jury resulted in favor and the method of taking and saving excepof the petitioners for the highway and against tions to the action of the court upon instruc the appellant, and judgment accordingly hay. tions, are not prescribed and cannot be detering been rendered, and the appellant's motion mined by this court. Such authority has not for a new trial having been overruled, this been given the court, but is exercised by appeal was taken.

the Legislature. On the day of the comPlainly, the record does not present an op mencement of the trial the appellees filed a portunity for us to decide, as assigned here written request that the jury be instructed as error, that “the court erred in not permit in writing and that the court give "the folting the withdrawals from the petition filed lowing special instructions." This request, not containing any instructions, was signed | pear to have been taken orally and entered by attorneys for the appellees; and nothing upon the records or minutes of the court, further relating to instructions appears in the or in writing at the close of the instructions proceedings of that day. The record of the requested, if there were such, or those given proceedings of the next day is as follows: by the court of its own motion, if there were “Come the jury, and the argument of counsel such, by an entry by a party or attorney at is beard, and they retire in charge of a the close of such instructions of a memoransworn officer to deliberate upon and consult dum dated and signed and setting forth in of a verdict. Instructions as follows, to wit." substance that such party excepted to the givThen follows one set of instructions, number. ing or the refusing of "each of the above ined 1 and 2, not signed by any one, and noth structions designated by its number.” The ing further concerning them appearing. Im statute (section 9) provides that no provision mediately after the second of these instruc. thereof shall be so construed as to preclude tions commences another set of instruc any matter from being made a part of the tions, numbered consecutively from 1 to 12, record by bill of exceptions under the rules inclusive. After each one of these instruc of practice in force at the enactment of this tions is the following: “Given and excepted | statute, and counsel for the appellant re to at the time by the defendant, this 24th fer to this provision; but it is quite plain that day of September, 1904”; this being signed the filing mentioned above, 12 days after the by attorneys for the defendant as such, and verdict, did not save by bill of exceptions lower down and at the left appears. "C. W. the set of instructions so filed. Besides, it Hanley, Judge," each of these memoranda did not appear that these were all the in-' with their signatures being appended to the structions given. particular instruction to which it relates. It is claimed that the court erred in the adNext is a request, signed by attorneys for mission of evidence; but what the evidence the defendant, that "the following instruc was which was so admitted is not shown, tions" be given, and another request, signed and the place where it may be found in in like manner, that all the instructions be the record is not indicated. The statement given in writing. There is nothing here re of evidence in the appellant's brief does not lating to the filing of these papers. Immedi sufficiently comply with the requirement of ately after them follow three instructions, the rule that, if the insufficiency of the numbered consecutively, not signed by any evidence to sustain the verdict or finding in one, and nothing being said by way of mem fact or in law is assigned, the statement orandum thereto annexed or otherwise relat in the appellant's brief shall contain a coning to them or either of them. Immediately densed recital of the evidence in narrative after them is an entry showing the return of form, so as to present the substance clearly the verdict. Twelve days afterward, at the and concisely. The evidence covers more same term, is an entry showing that the par than 150 typewritten pages of the record. ties appeared by counsel, and the defendant The statement in the brief relating to the “files instructions given in this cause with evidence covers about two printed pages, and his exceptions, which instructions and excep consists of some numbered statements of tions read as follows." Thereupon follows conclusions of counsel as to what the evithe same set of 12 instructions, with the same dence shows, and not of such a recital of evisigned memoranda following the instructions dence itself as the rule requires. severally, as above stated, and immediately Judgment affirmed after them is the following, without signature: “And which are ordered filed and made part of the record herein, and day is

(37 Ind. App. 371) given." Referring to the provisions of the statute

GRAND LODGE A. O. U. W. OF INDIANA of 1903 (Acts 1903, p. 338, C. 193), not in

v. HALL. (No. 5,404.) cluding the provisions relating to oral in. (Appellate Court of Indiana, Division No. 2. structions, which are not here applicable, it

Feb. 20, 1906.) will be observed that there was failure in INSURANCE - BENEFICIAL ASSOCIATIONS - ACmany respects to comply with the statutory

TIONS-PLEADING. requirements. No instructions requested, if

In an action on a beneficiary certificate, the

complaint must show the performance of every any were requested, appear to have been condition by the insured and the beneficiary; an signed by a party or his attorney. The court | allegation of performance by the beneficiary bedid not indicate by a memorandum signed by

ing insufficient. the judge at the close of any set of instruc

· Appeal from Circuit Court, Warrick Countions requested, if any were requested, the

ty; E. M. Swan, Judge. numbers of those given and of those refused.

Action by Sue R. Hall against the Grand No set of instructions given by the court of

Lodge of the Ancient Order of United Workits own motion, if any were so given, was

men of Indiana. From a judgment in favor signed by the judge. No instructions appear to have been filed with the clerk at the close

of plaintiff, defendant appeals. Reversed. of the instruction of the jury. No exceptions C. L. Wedding, for appellant. W. M. Wald. to the giving or refusing of instructions ap- | schmidt, for appellee,

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