Demurrer, when erroneous ruling on considered a harmless error. Bliss v. Gallagher, 60 App. 454, 109 N. E. 215.

Demurrer, failure to file memorandum withheld not to be cause for reversing a judgment. Bruns v. Cope, 182 Ind. 289, 105 N. E. 471.

Striking out parts of pleadings, when regarded as a harmless error. Barkley v. Barkley, 182 Ind. 322, 106 N. E. 609.

Instructions to jury, when modifications of regarded as harmless. Surety Co. v. Frankfort Heating Co., 178 Ind. 208, 97 N. E. 158.

Illinois

Instructions, when the giving of erroneous instructions to a jury will be regarded as harmless. Inland Steel Co. v. Ilko, 181 Ind. 72, 103 N. E. 7; Goldsmith v. First Nat. Bank, 50 App. 11, 96 N. E. 503; Cleveland etc. R. Co. v. Federle, 50 App. 147, 98 N. E. 123; St. Clair v. Princeton Coal Co., 50 App. 269, 98 N. E. 197; Lake Erie etc. R. Co. v. Moore, 51 App. 110, 97 N. E. 203; Indianapolis etc. Transit Co. v. Reeder, 51 App. 533, 100 N. E. 101; Vulcan Iron Works Co. v. Electrio etc. Mining Co., 54 App. 28, 99 N. E. 429, 100 N. E. 307; Prudential Ins. Co. v. Union Trust Co., 56 App. 418, 105 N. E. 505; Olds v. Lochner, 57 App. 269, 106 N. E. 889.

Instructions, when erroneous that are given to a jury will not be considered harmless errors. Southern R. Co. v. Howerton, 182 Ind. 208, 105 N. E. 1025, 106 N. E. 369; Evansville etc. R. Co. v. Hoffman, 56 App. 530, 105 N. E. 788.

Evidence, when the admission of incompetent evidence will be regarded as a harmless error. Eckart v. Fort Wayne etc. Tract. Co., 181 Ind. 352, 104 N. E. 762.

If incompetent evidence is admitted on a trial without objection, error can not be claimed therefor on appeal. Goff v. Craig, 51 App. 461, 99 N. E. 1013.

If the court on appeal does not believe that the correct result was reached by the trial court, the errors committed by such court will not be regarded as harmless. Fisher v. Groff, 182 Ind. 29, 105 N. E. 470.

Interrogatories to jury, when the answers made by the jury to interrogatories will be considered such a variance to the allegations of the complaint as to justify a reversal of the judgment. Wabash R. Co. v. McNown, 53 App. 116, 99 N. E. 126, 100 N. E. 383.

Verdict, when an uncertain verdict may be so corrected and construed as to render the overruling of a motion for a venire de novo harmless. McGlone v. Hauger, 56 App. 243, 104 N. E. 116.

See note to §§ 400, 407.

In an action for the price of corn, although there are no allegations as to the right to recover interest, a judgment for the price with interest computed from the date of the demand for payment, will be affirmed. Kuhn v. Powell, 61 App. 131, 111 N. E. 639.

Error in permitting a beneficiary in an insurance policy to prove waiver by the insurer of the right to insist on proofs of death was held not ground for reversal, since the failure to plead waiver might have been cured by amendment. Union Fraternal League v. Sweeney, 184 Ind. 378, 111 N. E. 305.

A correct decision of the lower court as to the constitutionality of the Primary Election law will be affirmed, although reached by an erroneous theory. Kelso v. Cook, 184 Ind. 173, 110 N. E. 987.

The giving of an erroneous instruction which is not calculated to be prejudicial is not ground for reversal. Vandalia R. Co. v. Stevens, - App. —, 114 N. E. 1001. In view of this section, the giving of an erroneous instruction is not reversible error, where it did not affect the result. City of Decatur v. Eady, 186 Ind. 205, 115 N. E. 577.

A judgment will not be reversed where the case has been fairly tried and the correct result reached. Welty v. Taylor, 63 App. 674, 115 N. E. 257. See note to sections 350, 400, 407.

Appellant's brief containing a portion of the testimony of three witnesses and no documentary evidence, held insufficient under this section. State ex rel. Salt Creek Tp. v. Stevens, App., 121 N. E. 371.

Under this section a pleading will not be reversed for absence of allegation that the real estate was situated within the state, but will be considered as amended. Gray v. Blankenbaker, App, 121 N. E. 84.

Although plaintiff in an action under federal Employers' Liability act stated only inferentially that plaintiff and the train of which he was conductor were engaged in interstate commerce at the time of the injury, the court properly instructed that plaintiff must establish such fact since under this section a defective complaint may be cured by evidence and will be deemed amended to conform to the evidence. Jackson v. Rutledge, 188 Ind. 415, 122 N. E. 579.

Judgment will be affirmed under this section where there has been no intervening error prejudicial to any substantial right of appellant after the case has been fairly tried on its merits and a correct result reached. National Council of Knights and Ladies of Security v. Sims, App., 119 N. E. 834.

This section does not limit the time wherein execution may be issued, but authorizes the court to grant leave to take out execution at any time after the lapse of ten years on proof that the judgment or any part thereof remains unpaid. Odell v. Green, App. —, 122 N. E. 791.

Error in giving or refusing instructions will not justify a reversal where verdict is right upon the evidence in view of this section. Records v. Smith, App. —, 126 N. E. 335.

-

701.

One judge incompetent, equal division of others, effect.

When one of the judges of the supreme court is incompetent to participate in the decision of a cause, and the other judges are equally divided, and the same condition exists at the next term of the court, the judgment of the trial court is to be affirmed without costs. Jordan v. City of Logansport, 178 Ind. 629, 99 N. E. 1060, 1061.

702. Reversal on appeal, remanding, instructions.

The supreme court may affirm a judgment in part, reverse it in part and remand the cause to the trial court with instructions to modify the judgment to conform to the decision of the supreme court. Union Nat. Bank v. Finley, 180 Ind. 470, 103 N. E. 110.

When the supreme court finds that the trial court erred in its conclusions of law upon a special finding of facts, the cause may be remanded with directions to the trial court to restate the conclusions of law, or a new trial may be ordered. Kitchell v. Schneider, 180 Ind. 589, 103 N. E. 647.

The supreme court on reversing a judgment may order that a new trial of the cause shall be had although no motion was made in the trial court for a new trial. Childress v. Lake Erie etc. R. Co., 182 Ind. 251, 105 N. E. 467.

The supreme court may direct that improper matter included in a judgment shall be stricken out, and affirm the judgment as modified. Donaldson v. State ex rel., 182 Ind. 615, 101 N. E. 485.

In view of this section and § 703, where error is committed in rendering judgment for defendant on interrogatories notwithstanding general verdict for plaintiff, plaintiff should have judgment on the general verdict in the absence of error justifying new trial. Craft v. Stone, App., 124 N. E. 473.

703. Judgment of Supreme Court, damages.

See note to section 702.

Where there was a recovery of an attorney's fee in excess of the statutory limit and appellant neglected to cite this fact to the court, the supreme court will adjudge the costs of appeal to appellant if a remittitur be entered for such excess. Pittsburgh, C., C. & St. L. R. Co. v. Yates, Ind. 129 N. E. 465.

704. Notice to clerk below-Rehearing.

When the appellate court overrules a petition for a rehearing and the decision in the case is certified to the court below as provided by statute, such decision will not be recalled from the lower court when the appellant files a second petition for a rehearing. Marion Light etc. Co. v. Vermillion, 51 App. 677, 99 N. E. 55, 100 N. E. 100.

The court has no power to extend the time for filing a petition for rehearing. Ft. Wayne Mercantile Acc. Assn. v. Scott, App. 124 N. E. 710.

After the time required by this section for filing petition for rehearing and opinion and judgment have been certified to the trial court, the court may not reinstate an appeal which has been dismissed. Ft. Wayne Mercantile Acc. Assn. v. Scott, App. 124 N. E. 710.

705. Death of party after submission, judgment.

When a party to a cause dies after a submission of the case to the appellate court, the judgment of the court shall be rendered as of the date of the submission, and no change of parties is necessary. Helms v. Cook, 58 App. 259, 108 N. E. 147.

If the appellee in a cause after an appeal has been taken does something that renders the appeal fruitless, and causes the questions presented to be moot ones, the appellee should be taxed with the costs of the appeal. Ogborn v. City of Newcastle, 178 Ind. 161, 98 N. E. 869.

An appellate court has a discretion as to the taxation of costs when a judgment is affirmed in part and reversed in part, and may tax the cost of unnecessary matter included in the record to the party causing such matter to be put in the record. Adams Express Co. v. Welborn, 59 App. 330, 108 N. E. 163, 109 N. E. 420.

Where an attorney's fee was allowed in excess of the limit by statute and appellant neglected to cite the statute the costs of appeal adjudged against him if a remittitur be made for such excess. Pittsburgh, C., C. & St. L. R. Co. v. Yates, Ind. 129 N. E. 465.

707. Fee for transcript, notice of appeal.

Fees of the clerk of the trial court for preparing the transcript, and of the stenographer for the transcript of the evidence, are recoverable as costs by the successful party on appeal. Adams Express Co. v. Welborn, 59 App. 330, 108 N. E. 163, 109 N. E. 420.

When a judgment is joint against the defendants, the execution issued to enforce the judgment against their joint property should be joint. Sharpe v. Baker, 51 App. 547, 96 N. E. 627, 99 N. E. 44.

In an application to obtain an execution upon a judgment after the lapse of ten years, no complaint is required, and the proceedings are to be had upon a motion, which can not be the basis of an assignment of error on appeal. Coffin v. Pfau, 61 App. 384, 112 N. E. 21.

Under this section, a motion is sufficient to review a judgment and for leave to issue execution. Coffin v. Pfau, 61 App. 384, 112 N. E. 21, 117 N. E. 869.

A proceeding under this section for leave to issue execution on judgment after ten years does not affect the life of a judgment. Odell v. Green, App. 121 N. E. 304.

728.

Lien on chattels, when first levy preferred.

Under this section, a judgment creditor by virtue of its execution in the hands of the sheriff prior to the assignment by the judgment debtor of an executory contract under which no payment was due, does not acquire a valid and enforcible lien against the funds to become due for work to be performed and material furnished thereafter by the judgment debtor under such contract. Beckman Supply Co. v. Newell, 118 N. E. 962.

App.

745. Exemption of property, six hundred dollars.

The owner of property that is exempt from sale under execution, may in good faith sell and convey such property free from the claims of his creditors before a sale is made under execution. Rich v. C. Callahan Co., 179 Ind. 509, 101 N. E. 810; Kirk v. Macy, 53 App. 17, 101 N. E. 108.

Persons may be nonresidents of the state within the meaning of the attachment laws, and yet resident householders of the state within the meaning of the statute exempting property from sale under execution. Householders of the state remain such until an actual or constructive residence is acquired outside of the state. Union Nat. Bank v. Finley, 180 Ind. 470, 103 N. E. 110.

766. Debt or thing in action, when given up.

A debt evidenced by executory contract for the improvement of a sidewalk can not be reached by the contractor's judgment creditor, in view of this section. Beckman Supply Co. v. Newell, App., 118 N. E. 962.

794. Personalty, how sold.

The statute regulating the manner of sale of property under execution does not

apply to sales made by receivers under the orders of courts. Cressler v. Tri-State Loan etc. Co., 182 Ind. 572, 107 N. E. 68.

809. Certificate of purchase, contents, duplicate, record, assignment. If a certificate of sale of real estate under execution is issued by the sheriff to the purchaser, and the certificate is recorded in the lis pendens record, an assignee of such certificate may obtain a deed on such certificate more than ten years after the date of the judgment under which the sale was made, although the assignment of the certificate was not recorded, and his title will be good as against subsequent purchasers. Hubble v. Berry, 180 Ind. 513, 103 N. E. 328.

814. Redemption, owner failing, judgment creditor.

If in an action to foreclose a mortgage, judgment is rendered in favor of the plaintiff and the land is ordered sold, and the court finds that certain defendants hold judgments that are junior liens to the mortgage, and on the sale the plaintiff in the suit bids in the property, and no redemption is made by the owner as provided by statute, such junior judgment owners may redeem from the sale. Fort Wayne etc. Supply Co. v. Pfeiffer, 60 App. 615, 111 N. E. 192.

In view of this section and section 815, where the decree of foreclosure determined the status of defendant's liens, and plaintiff at the foreclosure sale bid in the property for the amount of the judgment, interest and costs, it was held that the sale was primarily to satisfy the judgment obtained on the mortgage, and was not a sale by the holders of junior judgment liens, in the sense that it deprived them of the statutory right of redemption. Fort Wayne Builders' Supply Co. v. Pfeiffer, 60 App. 615, 111 N. E. 192.

Where mortgagee assigns mortgage and note secured thereby as collateral security and upon foreclosure assignee and another creditor were given liens upon proceeds of the sale to the extent of their debts and property was sold therefor mortgagee with constructive notice of foreclosure is entitled to redeem upon compliance with this section and section 815. Kenney v. Monroe, App. 123 N. E. 427.

815. Manner of redemption by judgment creditor.

The manner in which a judgment creditor may redeem land that is sold under execution is pointed out. Fort Wayne etc. Supply Co. v. Pfeiffer, 60 App. 615, 111 N. E. 192.

See note to section 814.

823. Property of principal to be first exhausted.

In view of this section and section 1269, an instruction is proper in an action on the official bond of a justice of the peace, that the surety was liable only in case property of the justice subject to execution has been exhausted. State ex rel. Fenstermacher v. McNelis, App. 122 N. E. 690.

858. Supplementary proceedings, answer by judgment debtor.

The statute authorizing proceedings against judgment debtors after executions are returned unsatisfied is construed, and the practice that is contemplated and proceedings authorized by the statute is pointed out. Adams Co. v. Federal Glass Co., 180 Ind. 576, 103 N. E. 414.

859. Judgment debtor, when required to apply property after execution.

In proceedings under this section a judgment debtor may be required to answer