Ind.] LOUISVILLE, N. A. & C. R. Co. v. INDIANAPOLIS & W. G. R. co. '41

also presented to the court, with the request that they be given the jury. The instructions so asked by the defendant were given, the court prefacing the reading of them to the jury with the following oral statement: "Gentlemen, defendant's counsel have asked me to give the following instructions." This oral statement was excepted to, and it is now insisted that the judgment ought to be reversed because the court made it. The making of such statements, doubtless through inadvertence, is a practice not to be commended. The habit was commented upon and disapproved in Dodd v. Moore, 91 Ind. 522. To what was there said nothing need be added, except to say that in a doubtful case such a suggestion might require a reversal of the judgment. As the oral statement was not and did not purport to be any part of the charge of the court to the jury, it did not violate the rule which requires the court to instruct in writing when so requested; and, in the absence of anything to indicate that the verdict was not well supported by the evidence, or that the appellant was possibly prejudiced by the remark, it cannot be made ground for reversal.

The judgment is affirmed, with costs.

(104 Ind. 600)

LOUISVILLE, N. A. & C. R. Co. v. INDIANAPOLIS & W. G. R. Co. Filed December 30, 1885.

APPEAL-FILING BRIEF.

Appeal dismissed for failure to file brief.

Appeal from Boone circuit court.

Wm. Irvin and C. S. Wesner, for appellant.

Stephenson & Boyd, for appellee.

Howk, J. No question was properly saved by the appellant in the record of this cause, and its counsel have presented no question for our decision. On the twenty-first day of July, 1885, appellant's counsel asked and obtained from this court an extension of 30 days in which to file their brief of this cause. Since the expiration of the time allowed more than four months have elapsed, and counsel have not filed their brief. In this state of the case, this appeal must be and is dismissed, with costs.

(104 Ind. 317)

HUSEMAN v. SIMS and others.

Filed December 30, 1885.

1. EXECUTION- UNLAWFUL SEIZURE AND SALE - SCHEDULE OF EXEMPT PROPERTY NOT FOUNDATION OF ACTION TO RECOVER DAMAGES THEREFOR.

In an action to recover damages for an unlawful seizure and sale, upon execution, of property which had been claimed as exempt from execution, the schedule is not properly a part of the complaint, although filed therewith as an exhibit, for the reason that it is not the foundation of the action.

2. SAME-PLEADING COMPLAINT MUST SHOW PROPER STEPS TAKEN TO CLAIM EXEMPTION.

In such an action the complaint must show the right to exemption, and that the statute had been substantially complied with in making, verifying, and filing the schedule.

Appeal from Dearborn circuit court.

H. D. McMullen, for appellant.

John K. Thompson, for appellees.

Howk, J. The sustaining of appellees' demurrer to his complaint, for the alleged want of sufficient facts therein to constitute a cause of action, is the only error of which the appellant complains in this court. In his complaint the appellant, Huseman, alleged that the appellee Sims was the sheriff of Dearborn county, and had been such for two years prior to October 1, 1883; that on the fifth day of October, 1882, the appellees Placke and Schulze obtained judgment in the Dearborn circuit court for the sum of $1,059.25; that of the money so recovered in such judgment the sum of $750 was due as rent on a written lease for certain real estate theretofore leased to appellant by the appellees Placke and Schulze, and the sum of $250 of such judgment, including costs, was for damages assessed against appellant for the unlawful detention of such real estate after the expiration of such lease; that the appellees levied upon and sold of appellant's property more than $300 worth over and above the property herein claimed as exempt; that on the sixth day of October, 1882, the appellees Placke and Schulze caused to be issued out of the clerk's office of such court an execution for the collection of such judgment; that such execution was delivered to Sheriff Sims, and on the sixth day of October, 1882, and by virtue of such execution, Sheriff Sims levied on all of appellant's property; that the appellant filed his schedule and demanded that the property specified therein, after deducting the said sum of $250 for damages for unlawful detention, be set off to him as exempt from levy and sale under such execution, which the appellees refused to do, but proceeded to advertise such property, and sold the same; that the appellant was, at the time of such levy and sale, and had been since, a resident householder and citizen of the county of Dearborn, in the state of Indiana, and was and had been entitled to exemption. A copy of the appellant's schedule and appraisement was filed with and made part of his complaint; and the appellant said that, by means of the premises, he was damaged in the sum of $600, for which

and for all proper relief he demanded judgment. The joint demurrer of all the appellees to appellant's complaint was sustained by the court.

The only question, we are required to consider and decide may be thus stated: Does the appellant's complaint, the substance of which we have given almost in his own language, state facts sufficient to constitute a cause of action in his favor and against the appellees, or either of them? In discussing the sufficiency of appellant's complaint, appellees' learned counsel says:

"The complaint, we submit, is manifestly bad for two reasons, namely: (1) The execution was issued on a judgment not founded on contract, but on tort, and no exemption is allowed; and (2) the complaint does not show that the appellant entitled himself to claim an exemption. Considering these objections to the complaint, in the inverse order of their statement, the so-called exhibit filed with the complaint-to-wit, the copy of appellant's schedule and appraisement-is not a proper exhibit, and hence is no part of the complaint, and cannot be looked to in determining the question of its sufficiency State v. Read, 94 Ind. 103; Conwell v. Conwell, 100 Ind. 437 "

We are of opinion that the second objection urged by appellees' counsel in argument to the sufficiency of appellant's complaint, is well taken, and must be sustained. Appellant has sued in this action to recover damages for the alleged unlawful seizure and sale, upon execution, of his property, which he had the right to claim, and had in fact claimed, as he averred, as exempt from such seizure and sale. It cannot be said, with any degree of accuracy, that the schedule and appraisement of appellant's property were, in any proper sense, the foundation of his alleged cause of action which he attempted to state in his complaint. Under section 362, Rev. St. 1881, it is only where the complaint is founded upon a written instrument that the filing of a copy thereof with the complaint makes such copy a part of the record. Indeed, it may well be doubted, we think, whether the appellant's schedule and appraisement were a "written instrument," within the meaning of that expression as used in the statute. Jones v. Levi, 72 Ind. 586; Hopper v. Lucas, 86 Ind. 43; Conwell v. Conwell, supra. The copy of appellant's schedule and appraisement is no part of his complaint, and therefore we cannot look to such copy in aid of the averments of the complaint or to supply an omitted averment. It is certain the complaint fails to show that the appellant, in claiming his exemption, had substantially complied with the requirements of section 714, Rev. St. 1881, in this, that he had made and subscribed the affidavit of and concerning his property, which the statute imperatively required of him before he could be entitled to claim the benefits of any of the provisions of our exemption laws.

In State v. Read, supra, the court said:

"It is not necessary to set forth the schedule in an answer, as it is not the foundation of the defense. Hall v. Hough, 24 Ind. 273. The defense consists of the right to the exemption and a compliance with the statutory requirements as to making, verifying, and filing the schedule. An answer which shows the person to be entitled to the exemption, and to have filed such a schedule as the law requires, is good. This is done in the present instance by fully stating all the material facts, and this is the proper method."

In the case in hand the appellant did not fully state, in his complaint, all the material facts necessary to show his substantial compliance with

the requirements of section 714, supra. Therefore his complaint was bad for the second reason assigned as above by appellees' counsel; and this conclusion renders it unnecessary for us to consider the first reason assigned above by such counsel.

The demurrer to the complaint was correctly sustained. The judgment is affirmed, with costs.

Where a person appears before a justice, and goes to trial without pleading to the jurisdiction, he waives all question as to jurisdiction over his person, and no such question can be raised by motion to dismiss.

2. EXCEPTIONS-OBJECTIONS TO EVIDENCE MUST BE SPECIFIC.

Objections to evidence must be specific, and the bill of exceptions must show just what evidence was objected to.

3. APPEAL-WEIGHT OF EVIDENCE-NO REVERSAL.

Where there is evidence fairly tending to support the verdict, the supreme court will not reverse the judgment, although the preponderance of evidence, as shown in the record, may be against the verdict.

Appeal from Crawford circuit court.

Thos. J. Jackson and J. Suddarth, for appellant.

N. R. Peckinpaugh, for appellee.

MITCHELL, J. This suit was commenced before a justice of the peace. The complaint charged that the defendant was indebted to the plaintiff in the sum of $112 for work and labor performed by the plaintiff for the defendant in his mill, from July, 1882, to May 12, 1883, at the special request of the defendant. With the complaint there was filed a sufficient bill of particulars, which was referred to therein. On the day set for trial, the record recites, the parties appeared, and the defendant moved to dismiss the action, for the reason that the court had no jurisdiction, and because there was no legal service of summons. This motion was overruled, and the defendant thereupon moved to dismiss because the complaint did not state a cause of action. After this last motion was overruled a trial was had, resulting in a judgment for the plaintiff. The case was removed by appeal to the Crawford circuit court, where the several motions made before the justice were renewed, and again overruled. A trial by jury resulting adversely to the appellant, the record is brought here on appeal for review.

It is contended-First, that the court erred in overruling the motion to dismiss for want of jurisdiction of the justice; and because the defendant was not legally served with summons.

The complaint filed with the justice exhibited a cause of action within the jurisdiction of the court; and, as the record shows that the defendant appeared, the justice had jurisdiction, both of the subject-matter of the

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action and of the person of the defendant. The argument here is that the appellant was sued out of the township in which he resided, and, for that reason, the justice had no jurisdiction over his person, and the constable had no legal right to serve him with process. Where the defendant resided did not appear on the face of the papers; and, since no objection to the jurisdiction of the court was disclosed by the record, that question could only have been presented by a proper plea. Appearing to the action and going to trial before the justice, without pleading to the jurisdiction of the court, was an effectual waiver of all questions relating to the service of the summons or jurisdiction of the justice. Ludwick v. Beckamire, 15 Ind. 198; Storm v. Worland, 19 Ind. 203; Grass v. Hess, 37 Ind. 193; Nesbit v. Long, Id. 300. Whether the court had jurisdiction of the defendant or not could not be raised by a motion to dismiss. The complaint was amply sufficient, and there was no error in overruling the motion to dismiss the action for want of a statement of a cause of action.

The plaintiff testified that he was employed by one Wilson, and that the work and labor sued for was performed under such employment. An attempt is made to present a question upon the ruling of the court in admitting evidence to prove that Wilson was the defendant's agent. The bill of exceptions admitting it to be properly in the record presents no question for decision. All that is said in the bill is that the "defendant objected to plaintiff attempting to prove the agency of said George W. Wilson, for the reason there was no such allegation in the complaint. etc. How or by whom the plaintiff attempted to prove the agency is not disclosed, nor is there any specific evidence objected to, so far as appears. Of course it was proper to prove, if it was the fact, that Wilson was the defendant's agent, and employed the plaintiff on the defendant's account. It was not necessary that the agency should have been averred in the complaint in order to admit such proof.

With their general verdict the jury returned answers to special interrogatories propounded by the respective parties. It is insisted that the court erred in overruling appellant's motion for judgment on the answers to the interrogatories notwithstanding the general verdict. The contested point in the case was whether one George W. Wilson, who employed the plaintiff to work in the defendant's saw-mill, was, at the time of such employment, the agent of the defendant, and employed plaintiff on defendant's behalf, or whether he employed him on his own account. Without prolonging the opinion by setting out the interrogatories, and the answers thereto, it is sufficient to say it is plainly apparent they are not inconsistent with the general verdict. In answer to the fourth interrogatory propounded by plaintiff, and the second by the defendant, the jury return explicitly that the evidence shows that Wilson was the authorized agent of the defendant. The appellant's motion for judgment in his favor was properly overruled.

The only remaining question discussed is that the court erred in overruling the appellant's motion for a new trial on the ground that the verdict was not sustained by the evidence. It may be conceded that the