Barton v. Kimmerley-165 Ind. 609.

held that the fourteenth amendment of the Constitution of the United States did not deprive that state of the power to provide by law for the administration of the estates of absentees. Said cause was appealed to the Supreme Court of the United States, where it was held in Cunnius v. Reading School District (1905), 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125, that the right to regulate concerning the estate or property of absentees is an attribute which in its essence belongs to all governments to the end that they may be able to perform the purposes for which government exists, and is within the scope of a state government in the absence of restrictions in its own constitution, and that the exercise of this power by the state does not necessarily violate the fourteenth amendment of the Constitution of the United States, by depriving the absentee of his property without due process of law in case he be alive when the proceedings are initiated. It follows that said fourteenth amendment of the Constitution of the United States does not deprive the legislature of this State of the power to provide by law for the settlement of the estates of absentees, and it is not claimed by appellants that such a law is in violation of any provision of the Constitution of this State. As it is not claimed by appellants that said act for the administration of the estates of absentees is unconstitutional if the legislature has the power under said fourteenth amendment to enact any law for that purpose, we pass to the consideration of the other question presented by the record.

It appears from the record that the real estate in controversy was sold and conveyed by order of court, under said

act for the administration of the estates of absentees 3. to pay debts; that appellee bought the same at ad

ministrator's sale under said act and paid the purchase money in full, and was put in possession of said real estate under said purchase, and has held the uninterrupted, exclusive and adverse possession thereof from date of confirmation of said sale till the com

Barton v. Kimmerley-165 Ind. 609.

mencement of this action, a period of more than five years; that said real estate so sold and conveyed to appellants was, by mistake and inadvertence, erroneously described in the petition to sell the same, and in all subsequent proceedings, including the deed conveying the same to appellee; that said absentees never owned or had any title to the land actually described in said petition, proceedings and deed; that neither the administrator nor appellee, the purchaser, had any knowledge of said mistake in the description of said real estate, but believed that the real estate in controversy was correctly described in said petition and proceedings and deed. Appellants insist that said misdescription rendered said judicial sale void, and that no title was conveyed to appellee. Appellee insists that, even if said sale was void on account of said misdescription, she has title to the real estate in controversy after the expiration of five years from the confirmation of said sale to her, under clause four of $294 Burns 1901, §293 R. S. 1881 and Horner 1901. It has been uniformly held by this court that actions to recover real estate or to quiet title thereto, as in this case, are barred in five years from the confirmation of the sale, even if the sales are void. Armstrong v. Iufty (1901), 156 Ind. 606, 620-628, and cases cited; Fisher v. Bush (1892), 133 Ind. 315; Hawley v. Zigerly (1893), 135 Ind. 248, 252, 253, and cases cited; Davidson v. Bates (1887), 111 Ind. 391, 400, 402; White v. Clawson (1881), 79 Ind. 188, 192, 193, and cases cited; Vail v. Halton (1860), 14 Ind. 344; Vancleave v. Milliken (1859), 13 Ind. 105. The statute is one of repose, and it is not necessary that one should have a good title to invoke its aid. It is only those whose titles are not good that need the protection of the statute. It was said in Fisher v. Bush, supra, at page 319: "The action is to recover real estate sold by an administrator under an order of court, specially directing the sale, and the time for the bringing of the action is limited by the fourth subdivision of $293 R. S. 1881 [§294

Southern R. Co. v. State-165 Ind. 613.

Burns 1901]. It has been held that such actions are barred in five years, though the sale be absolutely void. Davidson v. Bates [1887], 111 Ind. 391. Valid sales require no protection by statutes of limitation. It is to the illegal and void sales that statutes of limitation are intended to apply."

* * *

It is evident that the court below committed no error in holding that appellee was entitled to the benefit of said statute of limitation of five years. Finding no error in the record, the judgment is affirmed.

SOUTHERN RAILWAY COMPANY v. THE STATE.

[No. 20,714. Filed October 1, 1905. Rehearing denied December 12, 1905.]

1.

2.

REMOVAL OF CAUSES.-Diverse Citizenship.-States.-A state is not a citizen of any state, and an action by a state against a foreign corporation is not removable to the federal court on the ground of diverse citizenship. p. 616.

The

SAME. ·Diverse Citizenship. — Real Parties. — State. state is the real party in an action by it to collect a penalty for the violation of a statute, though one-half of such penalty goes to the prosecuting attorney and one-half to the county for the use of the common school fund. p. 617.

3. PLEADING.-Complaint.-Railroads.-Failure to Report Arrival of Trains.-Penalties.-A complaint against a railroad company for its failure to report the arrival of its passengertrains at its station as required by $$5186, 5187 Burns 1901, Acts 1897, p. 176, Acts 1889, p. 279, §2, which substantially follows in the language of such statutes is sufficient. p. 618.

4.

TRIAL. Instructions.-Evidence. Whether Jury "May" or "Should" Consider.-The refusal of the court to instruct that the jury "should" consider, in determining the weight to be given their testimony, the promise of the prosecuting attorney to pay witnesses in the event plaintiff should win the case is reversible error. p. 620.

5. SAME. Instructions.-Evidence.-Whether Jury "May" or "Should" Consider.-The giving of an instruction by the court without objection that the jury "may" consider a witness's interest in the result of the action in determining the weight to be given his testimony is not alone reversible error.

p. 623.

-Southern R. Co. v. State-165 Ind. 613.

6. TRIAL. Instructions.-Evidence.-Limiting Application of.— An instruction that the jury should consider the interest of the witness in the result of the action in determining the credibility of his testimony, but for no other purpose, is not erroneous. p. 623.

7. SAME.-Instructions.—Right of Party to Subpoena and Transport Witnesses.-An instruction that a party has the right to subpoena and transport his witnesses, where there is evidence on such subject, is proper, though a refusal to give same is not reversible. p. 624.

8. EVIDENCE.-Memory.-Refreshing by Memoranda.-A witness may refresh his memory by referring to concurrent memoranda, but he must have some recollection of the fact apart from such memoranda. p. 624.

9. SAME.-Memoranda.—Private.—Private memoranda, not made in the ordinary course of business, of the failure of a railroad company to post the time of arrival of its passenger-trains, are not admissible in evidence. p. 625.

10. TRIAL. Motion to Strike Out Evidence. Certainty. A motion to strike out evidence must be specific, and if it include any competent evidence, it should be overruled. p. 626. 11. SAME.-Motion to Strike Out Evidence.-Reasons.-A motion to strike out evidence must state the reasons therefor. p. 626. 12. EVIDENCE.-Refreshing Memory by Memorandum.-Copy.— Where a witness desires to refresh his memory from a copy of a memorandum, he must show that the original is lost. p. 626. 13. TRIAL. Requiring Plaintiff to Elect on Which Paragraph He Relies. Where the State files a complaint in 404 paragraphs against a railroad company for that number of separate violations of the statute ($85186, 5187 Burns 1901, Acts 1897, p. 176, Acts 1889, p. 279, §2) requiring such companies to post the time of arrival of passenger-trains, a motion by defendant to require plaintiff to elect on which paragraph it will try, should be overruled. p. 626.

14.

STATUTES.

Construction. - Railroads. Posting Time of Arrival of Trains.-Penalty.-Section 5187 Burns 1901, Acts 1889, p. 279, §2, provides a penalty for "each violation" of such act and not a single penalty for all violations. p. 627.

From Dubois Circuit Court; E. A. Ely, Judge.

Action by the State of Indiana against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under subd. 2, $1337j Burns 1901, Acts 1901, p. 565, §10. Reversed.

Southern R. Co. v. State-165 Ind. 613.

A. P. Humphrey, John D. Wellman, M. W. Fields and Bretz & McFall, for appellant.

Leo H. Fisher, prosecuting attorney, W. E. Cox, W. S. Hunter, A. L. Gray, H. M, Kean and C. F. Coffin, for appellee.

JORDAN, J.-The State of Indiana, by the prosecuting attorney of the proper judicial circuit, instituted and prosecuted this action against appellant, under §§5186, 5187 Burns 1901, Acts 1897, p. 176, Acts 1889, p. 279, §2, on account of its failure to report the arrival of certain passenger-trains as required by the provisions of the first-mentioned section. Trial by jury. Verdict and judgment for $4,500. Sections 5186, 5187, supra, read as follows: "Section 5186. That every corporation, company or person operating a railroad within this State, shall immediately after taking effect of this act, cause to be placed in a conspicuous place in each passenger depot of such company located at any station in this State, at which there is a telegraph office, a blackboard at least three feet long and two feet wide, upon which such corporation, company or person, shall cause to be written, at least thirty minutes before the schedule time for the arrival of each passenger-train stopping upon such route at such station, the fact whether such train is on schedule time or not, and if late, how much: Provided, however, that any device, indicator or register, painted or printed in large letters and figures giving the required information set forth in this act, in a more legible form than is practicable on a blackboard, may be substituted in place of said blackboard: and, provided further, that the provisions of this act shall not apply to any freight-train carrying passengers or any train carrying both freight and passengers, or to any station during hours when railroad companies do not regularly have a telegraph operator or operators on duty at any such telegraph office." "Section 5187. That for each violation of the provision of this act,