along the lines just indicated, it is fair for us to briefly consider what they say. Courts of appeal consider and dispose of a case solely upon the record. As affecting the Pennsylvania Company no question is presented by the record by which the judgment in its favor can be disturbed. The question of its liability, upon the instructions of the court and under the evidence, was submitted to and determined by the jury. That judgment must stand, because it is not questioned in any manner by the record. As to counsel's contention that the action "is a bold fraud" and that appellee's injury was and is "simulated," it is not sustained by the facts disclosed by the record. Appellee was injured January 18, 1904, by which his hip joint was dislocated. It was known in medical parlance as a "supracatyloid dislocation." Immediately after the injury he was taken to the office of a surgeon for examination and treatment. He walked to the surgeon's office, by the assistance of others. The evidence shows that a person with a supracatyloid dislocation can walk, but the effort will be attended by severe pain. The surgeon treated him, placed his limb in "plaster strips," and it so remained for three weeks. The limb was then put in flannel bandages, and they were kept on three months. The appellee was confined to his bed for about three weeks. The case was tried in October following the accident, and he testified that his hip still pained him. He walked lame, and up to that time had not been able to do any work. The evidence of physicians was to the effect that such a dislocation was "very painful," and two of them gave it as their opinion that appellee's disability was permanent. Under this evidence we are unable to agree with counsel that this action on the part of appellee was a "bold fraud," or that his injury was "simulated," or that "its continuance is feigned." We cannot disturb the judgment on the evidence. There is nothing in the record to indicate that the jury were influenced by improper considerations, or that they misunderstood or misapplied the evidence, and hence we cannot say that the damages awarded are excessive. Judgment affirmed. (37 Ind. App. 377) HELBERG v. DOVENMUEHLE. (No. 5,720.) (Appellate Court of Indiana. Division No. 1. Feb. 23, 1906.) 1. APPEAL-PARTIES. Under Burns' Ann. St. 1901, §§ 647, 647a, authorizing an appeal by a part of several coparties, but providing that in case of a vacation appeal the parties appealing must serve a written notice of the appeal on the other coparties or their attorneys of record, and that after such notice, unless the parties notified appear and decline joining in the appeal, they must be regarded as properly joined, and if they decline to join their names may be struck out on motion and they cannot take an appeal afterwards, all the parties affected by a judg ment must be brought before the appellate court. [Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1795-1813.] 2. SAME. Acts 1903, p. 340, c. 193, § 7; Burns' Supp. 1905, § 641g, provides that any party desiring a transcript of the record, or any part thereof, for appeal may file with the clerk a written præcipe therefor, and in obedience thereto the clerk shall include in the transcript every paper and entry requested to be included. A judgment was rendered against one defendant on a note and against all defendants for foreclosure of a mortgage. The præcipe filed by the person against whom a personal judgment was taken, who alone appealed, called only for certain parts of the record. Held, that it cannot be said on appeal that the appellant was the only defendant affected by the judgment, and hence the appeal must be dismissed. Appeal from Circuit Court, Lake County; J. F. Meeker, Special Judge. Action by Henry C. Dovenmuehle against George H. Helberg and others. From a judgment in favor of plaintiff, defendant Helberg appeals. Transferred from the Supreme Court. Appeal dismissed. BLACK, P. J. The appellee has moved to dismiss the appeal. Suit was brought by the appellee alone against George H. Helberg, the appellant, and five other defendants, named in the title of the cause as "First National Bank of Hammond, Indiana, John Lienen, Peter Covert, Anna Covert, his wife, Fidelity Building & Savings Union No. 2, Marion County, Ind." The complaint contains two paragraphs; the first being upon a promissory note made by the appellant, 'payable to the order of the appellee, and a mortgage upon real estate executed by the maker of the note to the payee, to secure the payment thereof. In this paragraph of complaint it was alleged that the appellee "is informed that the defendants First National Bank of Hammond, Fidelity Building Loan & Savings Association No. 2, Marion County, Indiana, John Lienen, Peter W. Covert, and Anna Covert claim to have some interest in or lien upon the said mortgaged premises or some part thereof, which interests and liens, if any, are subsequent and subject to the lien of the plaintiff's said mortgage." Judg. ment was prayed in the first paragraph for a certain sum, the foreclosure of the mortgage, and the sale of the real estate to satisfy the appellee's claim and costs, "and that all the defendants, and all persons claiming under them subsequent to the commencement of this action, be barred and foreclosed of all right, claim, and equity of redemption in said premises," etc., and for judgment over against the appellant, etc. The second paragraph of complaint need not be specially noticed, inasmuch as judgment was rendered against the appellee, the plaintiff, upon that paragraph. "The defendant John Trinen" and "the defendants Peter W. Covert and Anna Covert, his wife," filed disclaimers. The appellant separately filed answers, and the appellee replied thereto. Upon the trial the court found for the appellee upon his first paragraph of complaint and that there was due him from the appellant on the note and mortgage sued on therein a specified sum, with costs, and that this mortgage "should be foreclosed against each and all of the defendants in this action," etc. The court adjudged that the appellee recover of the appellant under the first paragraph of complaint a certain sum and costs, and that the mortgage in the first paragraph set forth De "foreclosed against all the defendants in this action," etc. This appeal was taken after the term, by notices from the appellant alone, served upon the clerk of the court below and upon the appellee. In the assignment of errors Henry C. Dovenmuehle is named as the appellee, and George H. Helberg is named as the appellant, by whom alone the alleged errors are assigned. No notice of the appeal appears to have been given by the appellant to his codefendants or to any of them. The A part of several coparties may appeal to the Supreme Court or to this court; but if it be a vacation appeal, as in this case, the party or parties so appealing must serve a written notice of the appeal upon all the other coparties or their attorneys of record, and file proof thereof with the clerk of the court to which the appeal is taken. Under certain circumstances, not appearing to be here involved, the notice may be given by publication. After such notice, unless the parties notified appear and decline to join in the appeal, they must be regarded as properly joined. If they decline to join, their names may be struck out on motion and they cannot take an appeal afterward. See sections 647, 647a, Burns' Ann. St. 1901. appellant in the assignment of errors must name all who are affected by the judgment from which the appeal is taken. Gourley v. Embree, 137 Ind. 82, 36 N. E. 846; Rule 6 of this court (55 N. E. iv); Ewbank's Manual, § 126; Brown v. Trexler, 132 Ind. 106, 30 N. E. 418, 31 N. E. 572; Hutts v. Martin, 141 Ind. 701, 41 N. E. 329; Garside v. Wolf, 135 Ind. 42, 34 N. E. 810. All the parties affected by the judgment must be before this court. It is claimed that there was no judgment against any party but the appellant. The judgment of foreclosure, however, was against all the defendants, and only one of them is before this court. Omitting those who filed disclaimers, there still remain other defendants who are affected by the judgment. The statute of 1903 (Acts 1903, p. 340, c. 193, §7; Burns' Supp. 1905, § 641g) provides that any party or person desiring a transcript of the record of any cause or proceeding or any part thereof, for appeal, may file with the * * clerk a written præcipe therefor. "If such party or person desire a transcript of the entire record, it shall be sufficient to so state in the præcipe; if a complete transcript be not desired, then such party or person shall indicate in the præcipe the parts of the record desired. Such præcipe shall constitute a part of the record, and in obedience thereto the clerk shall include in the transcript every paper and entry in the cause thereby requested to be included, and every paper and entry by this act declared to be a part of the record shall be considered by the Supreme Court or the Appellate Court on appeal, when so included in the transcript, the same as though the matter had been made a part of the record by a bill of exceptions. The præcipes shall be copied in the transcript immediately before the certificate of the clerk," etc. In the præcipe filed by the appellant in this cause, it was not stated that he desired a transcript of the entire record. The cause was entitled as in the complaint, except that among the names of the defendants the name "John Trinen" was inserted instead of the name "John Lienen," as in one of the disclaimers; and in the body of the præcipe the appellant indicated particular parts of the record of which he directed the clerk to prepare and certify a transcript. The clerk's certificate conforms to the præcipe, and the transcript is made to comply therewith. The præcipe contains no reference to any summons, or to an entry of any default, or to any answer except as above stated, and the transcript does not show whether or not any summons was issued or served, or whether or not any default was taken and entered, or whether or not there was any other answer or answers than those above mentioned. The portions of the record specified in the præcipe, and contained in the transcript in compliance therewith, are before us; but we cannot assume that there was no summons duly served, or that there was no default, or that there was no answer on the part of any defendant except as shown in the transcript made under and in compliance with a præcipe calling for only certain other particular parts of the record. It cannot be said with confidence that no defendant against whom the judgment was rendered, except the appellant, is affected thereby. There can be but one appeal from the judgment, and the party taking it must bring before this court all the parties to the judgment, whose interests would be affected by the decision upon appeal. The appeal is dismissed. ferring to the bill, "which bill of exceptions is now tendered to the court, and by the court signed and filed with the clerk of this court,' sufficiently shows that the bill was filed with the clerk. 2. COSTS CRIMINAL PROSECUTIONS-WITNESS FEES. Burns' Ann. St. 1901, § 1740, requires the names of all material witnesses to be indorsed on the indictment, but permits other witnesses to be subpoenaed by the state. Section 8103, as modified by section 1907, subsequently enacted, authorizes the collection of costs from a person convicted of crime, unless the court or jury expressly find otherwise. Section 1927 provides that no cost for mileage or attendance shall be taxed against a person convicted for a witness summoned by the state, whose name was not indorsed on the indictment, and who was not sworn in the cause, or did not testify to any material fact in aid of the prosecution. Held, that where a defendant at first pleaded not guilty, but at the time set for trial entered a plea of guilty, he was liable, in the absence of a showing that more witnesses were summoned by the state than were necessary, for the cost of mileage and attendance for all of them, though the names of some were not indorsed on the indictment. Appeal from Circuit Court, Steuben County; C. E. Emanuel, Special Judge. Robert Cameron was convicted of selling liquor without a license, and appeals. Transferred from the Supreme Court, under Act March 12, 1900. Affirmed. Brown & Carlin and Woodhull & Yeagley, for appellant. Frank L. Wilsheimer, Pros. Atty., W. E. Heckenlively, Best & Yotter, C. W. Miller, Atty. Gen., C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State. ROBINSON, J. Appellant was indicted for selling liquor without a license. On February 23, 1905, he was arraigned and entered a plea of not guilty, and the case was then set for trial on March 1, 1905. On this date he entered a plea of guilty, and was fined $30 and adjudged to pay the costs. Afterward appellant filed a motion to retax certain witness fees as costs, on the ground that the names of some of such witnesses were not indorsed on the indictment; that they were not sworn to any material fact in aid of the prosecution; that all of such fees were taxed for mileage and attendance of such witnesses on the trial of the case. It is first claimed that the record does not show the filing of the bill of exceptions in the clerk's office. A record entry, after reciting the overruling of the motion to retax costs and an exception by appellant and making mention of the bill of exceptions, states, "which bill of exceptions is now tendered to the court, and by the court signed and filed with the clerk of this court; said bill of exceptions being in these words;" this is followed by a transcript of the bill of exceptions. This recital of the filing of the bill is not in the bill itself, but is a record entry, and sufficiently shows that the bill was filed with the clerk. Section 1740, Burns' Ann. St. 1901, requires the names of all material witnesses to be indorsed upon the indictment, but other witnesses may afterward be subpoenaed by the state; but, unless the names of such witnesses be indorsed on the indictment at the time it is presented, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed. This section permits the use by the state of witnesses whose names are not on the indictment, and simply prevents the state from having a continuance because of the absence of a witness whose name is not on the indictment. Section 1851, Burns' Ann. St. 1901. See Short v. State, 63 Ind. 376; Siberry v. State, 133 Ind. 677, 33 N. E. 681. Section 8103, Burns' Ann. St. 1901, provides that "in all criminal cases where the person accused shall be acquitted, no costs shall be taxed against such person, nor against the state or county, for any services rendered in such prosecutions by any prosecuting attorney, clerk, sheriff, coroner, justice of the peace, constable or witness; but in all cases of conviction such fees and costs shall be taxed and collected from the person convicted." This provision is modified by the subsequent enactment of section 1907, Burns' Ann. St. 1901, which provides that "when the defendant is found guilty, the court shall render judgment accordingly, and the defendant shall be liable for all costs, unless the court or jury trying the cause expressly find otherwise." Under this section the court may relieve a defendant from the payment of all costs, but it is not a matter of mere arbitrary discretion. "What particular facts," said the court in Welsh v. State, 126 Ind. 71, 25 N. E. 883, 9 L. R. A. 664, “would authorize a court or jury finding a defendant guilty, to relieve him from the payment of costs, we need not now inquire; but he should not be so relieved without some reason for so doing." See State v. Sevier, 117 Ind. 338, 20 N. E. 245. Section 1927, Burns' Ann. St. 1901, provides that "in case of the conviction of a defendant, no cost for mileage or attendance shall be taxed against such defendant in behalf of any witness who was summoned by the state to testify, but whose name was not indorsed upon the indictment nor upon the information, and who was not sworn in the cause, or who, if sworn, did not testify to any material fact in aid of the prosecution." It is also provided (section 1866, Burns' Ann. St. 1901) that witnesses in a criminal prosecution, if subpoenaed, may be compelled to attend and testify without their fees being first paid or tendered, and that the court may recognize witnesses to attend and testify. Prior to the enactment of section 1927, supra, the fees of all witnesses subpoenaed by the state, whether used or not, or whether they testified to anything material or not, were taxed as costs against the defendant upon conviction. 1 Rev. St. 1876, p. 479, c. 113; Schlicht v. State, 56 Ind. 173. And it would seem that the pur pose of section 1927 was to relieve defendants from the payment of certain witness fees where there is a trial upon a plea of not guilty, as relief is given from costs of witnesses who are not sworn, or who, if sworn, do not testify to some material fact in aid of the prosecution. Unless there was a trial, it could not be determined whether a witness had been subpoenaed by the state to testify to any material fact in aid of the prosecution. An issue of fact might arise, during the progress of the trial, that would require additional witnesses, or issues of fact contemplated when the witnesses were subpoenaed might not arise during the trial. Only in a contested case could it be determined whether the testimony of witnesses subpoenaed would be material or not. In the absence of any showing to the contrary, it must be presumed that the prosecuting attorney acted in good faith, and that no more witnesses were subpoenaed than were necessary to sustain the state's case, and that only such witnesses were subpoenaed as would testify to material facts in aid of the prosecution. When appellant was arraigned and entered a plea of not guilty, and the case was set for trial, it was the duty for the prosecuting attorney to prepare for the trial. The plea of not guilty stood until after these witnesses were subpoenaed, and until the time they were required by the subpoenaes to be in court. The plea was then changed, and the testimony of the witnesses was not needed. Had the plea of guilty been entered at the time of the arraignment, no witnesses would have been necessary. But appellant chose to stand upon his plea of not guilty until the state was required to prepare for trial and had the witnesses in court ready for trial. There is nothing to overcome the presumption that the preparation that was made for the trial was necessary and proper. The names of the witnesses here in question were not indorsed in the indictment, and if there had been a trial, and they had not been sworn and testified to some material fact in aid of the prosecution, upon conviction their fees could not have been taxed as costs against appellant. But there is nothing in the record to rebut the presumption that the prosecuting attorney acted in good faith in having them subpoenaed, and that each was a competent and necessary witness. They were present in court and did not testify because of the act of appellant alone. In civil actions, if the attendance of witnesses is procured in good faith by one of the parties, he will not lose his right to recover the costs of such witnesses by the subsequent conduct of the other party in rendering their attendance unnecessary. Ohio, etc., R. Co. v. Trapp, 4 Ind. App. 69, 30 N. E. 812; Alexander v. Harrison, 2 Ind. App. 47, 28 N. E. 119; Miller v. De Armond, 93 Ind. 74; Teeple v. Dickey, 94 Ind. 124. See Deweese v. Smiley, 1 Ind. App. 81, 27 N. E. 444. While a rule in civil actions is not necessarily controlling in criminal actions, yet we fall to see any sufficient reason, upon the facts disclosed, for applying a different rule in this case from that applied in a civil action. It is quite true that a defendant should be granted relief, where bad faith is shown, or where it is made to appear that witnesses were unnecessarily subpoenaed; but such a case is not presented by this record. Judgment affirmed. (37 Ind. App. 373) EQUITABLE LIFE INS. CO. OF IOWA v. 1. INSURANCE-ACTION ON POLICY-PRESUMPTION AND BURDEN OF PROOF SUICIDE OF INSURED. In an action on a policy of life insurance, providing that it should be void if the insured should take his own life, whether sane or insane, suicide could not be presumed from the mere fact of death in an unknown manner, but the burden of establishing the defense of suicide is on the insurer. [Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1663.] 2. SAME-EVIDENCE-QUESTION FOR JURY. In an action on a policy of life insurance, evidence held to present a question of fact for the jury whether the insured had taken his own life by poisoning. [Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1745, 1763.] Appeal from Circuit Court, Allen County; E. O'Rourke, Judge. Action by Oliver Hebert and others against the Equitable Life Insurance Company of Iowa. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. P. B. Colerick and Guy Colerick, for appellant. Breen & Morris, for appellees. ROBINSON, J. Appellees sued upon a policy of insurance issued upon the life of Oliver J. Hebert, on December 8, 1902. The assured was found dead July 28, 1903. The policy contained a provision "that, should the assured within two years from date thereof take his own life, whether sane or insane, any policy issued thereon should become void, and all payments made thereon should be forfeited to said company." The sufficiency of the evidence to sustain the verdict, the excluding of certain testimony offered, and the giving of a certain instruction, are the only questions argued by appellant's counsel. Self-destruction cannot be presumed from the mere fact of death in an unknown manner. The strong instinctive love of life and the uniform efforts of men to preserve life will not permit a presumption of suicide, where death may have resulted from accident or mistake. Appellees were entitled to recover, unless appellant has by competent evidence overcome this presumption. If the facts are such that death might have resulted from accident, mistake, or suicide, the presumption is against suicide. If the accused committed suicide, the law was against appellees, because the policy by its terms did not cover self-destruction, whether the assured at the time was sane or insane. As the defense of suicide was relied upon, the burden of proving it was upon the appellant. See Travelers' Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308; Leman v. Manhattan Ins. Co., 46 La. Ann. 1189, 15 South. 388, 24 L. R. A. 589, 49 Am. St. Rep. 348; Walcott v. Metropolitan L. Ins. Co., 64 Vt. 221, 24 Atl. 992, 33 Am. St. Rep. 923; Supreme Council, etc., v. Brashears, 89 Md. 624, 43 Atl. 866, 73 Am. St. Rep. 244; Meadows v. Pacific Mutual, etc., Ins. Co., 129 Mo. 76, 31 S. W. 578, 50 Am. St. Rep. 427; Streeter v. Western Union Mut. Acc. Soc., 65 Mich. 199, 31 N. W. 779, 8 Am. St. Rep. 882; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 43 N. W. 731, 17 Am. St. Rep. 184; Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410; Hale v. Life Indemnity, etc., Co., 61 Minn. 516, 63 N. W. 1108, 52 Am. St. Rep. 616. The defense was that the assured took carbolic acid with suicidal intent. The deceased was found dead on the bank of a railroad right of way, lying on his back at full length, his feet crossed at the ankles, one hand at his side and the other across his breast. In his vest pocket was a small vial containing carbolic acid, the contents of which were about half gone; and near or under the body was a large bottle containing a solution of carbolic acid and water. The appearance of the face did not indicate that there had been any severe pain preceding death. There was a post mortem examination held, and the testimony of the physicians was directly contradictory as to the presence of carbolic acid in the stomach, as was also the evidence as to whether the mouth showed the use of carbolic acid. There is evidence that the assured had some pimples on his face, and that his mother had advised him to wash it with a solution of carbolic acid; that on the morning of his death he went to a drug store and purchased 10 cents worth of carbolic acid, secured a large bottle, and filled it with a mixture of the acid and water; that the day on which he died was an excessively warm day; that he had received a sunstroke a few weeks before he died; and that his physical condition was such that he might easily have succumbed to the excessive heat. We have not undertaken to give the substance of all the testimony, but to show that, while there are indications that point to suicide, there are other facts and circumstances not consistent with that theory. The evidence relied upon to establish suicide was circumstantial, and in such case it should be sufficient to exclude, with reasonable certainty, any other cause of death. Although the evidence was contradictory as to the presence of carbolic acid in the stomach, and as to whether the mouth indicated the use of the acid, still, if the evidence had shown without dispute that the acid was used and death resulted, the death might bave resulted from accident or mistake, and this would be the presumption as against suicide. "When the dead body of the assured," says the author of 1 May on Insurance (4th Ed.) § 325, "is found under such circumstances and with such injuries that the death may have resulted from negligence, accident, or suicide, the presumption is against suicide, as contrary to the general conduct of mankind—a gross moral turpitude not to be presumed in a sane man; and whether it was from one or the other, if there is any evidence bearing upon the point, it is for the jury, as, for instance, whether the taking of an overdose of laudanum was intentional or by mistake." See But, as stated, there was evidence that there was no indication of the presence of the acid in the stomach, nor did the mouth necessarily indicate that it had been used. The credibility of the witnesses was a question for the jury. It cannot be said that there is no evidence to support the conclusion they reached. Whether the assured committed suicide was to be determined as any other question of fact. Upon a careful consideration of the evidence we do not find it such as authorizes us to disturb the verdict. Travelers' Ins. Co. v. Nitterhouse, 11 Ind. App. 155, 38 N. E. 1110; Phillips v. Louisiana Eq. L. Ins. Co., 26 La. Ann. 404, 21 Am. Rep. 549; Hale v. Life Indemnity, etc., Co., supra; Leman v. Manhattan L. Ins. Co.. supra; Michigan Mut. L. Ins. Co. v. Naugle, 130 Ind. 79, 29 N. E. 393; Northwestern, etc., Ins. Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192; Supreme Lodge, etc., v. Foster, 26 Ind. App. 333, 59 N. E. 877; Cochran v. Mut. Life Ins. Co. (C. C.) 79 Fed. 46; Ingersoll v. Knights of Golden Rule (C.C.) 47 Fed. 272; Supreme Lodge, etc. v. Beck, 94 Fed. 751, 36 C. C. A. 467. The correctness of the tenth Instruction is questioned, but what we have already said concerning the presumption that the assured took his own life, is applicable to the only question raised as to this instruction. We find no error in the record for which the judgment should be reversed. Judgment affirmed. (Appellate Court of Indiana, Division No. 2. Feb. 21, 1906.) ADMINISTRATORS-FINAL SETTLEMENT - SETTING ASIDE. Where an administrator procured a final settlement on a final report showing that he and another were the only heirs at law of the decedent, and procured an order of the court directing the clerk to pay them the amount remaining for distribution, when in fact a third person was the sole heir and they had no right to the fund, the heir had a right to have the final settlement set aside. [Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, i 2205.1 1 Rehearing denied, 77 N. E. 960. |
