The particular covenant in the lease upon which a recovery is sought provides that the lessee, under certain conditions, agrees to pay to "the party of the first part," A. P. Rayl, a certain sum of money.
The questions involved in this appeal and discussed in the briefs of counsel are identical with those involved in the Indianapolis Natural Gas Co. v. Spaugh, ante, 683.
Upon the authority of that case, the judgment is reversed with instructions to sustain the demurrer to the complaint.
[No. 2,188. Filed June 11, 1897.]
From the Howard Circuit Court. Affirmed.
John Mitchell, Nott N. Antrim, W. B. McClintic and Bell & Purdum, for appellant.
J. C. Blacklidge and C. C. Shirley, for appellees.
BLACK, J.-For the determination of the questions presented in argument by the appellant, it would be necessary for us to look to the reporter's original longhand manuscript of the evidence and the objections and exceptions at the trial; but, as suggested by counsel for the appellees, the original longhand manuscript cannot be regarded as properly before us, for the reason that it does not appear that it was filed in the clerk's office before it was incorporated in the bill of exceptions in which it appears in the transcript brought to this court.
The decisions to this effect are quite numerous. See De Hart v. Board, etc., 143 Ind. 363; Smith v. State, 145 Ind. 176; Pittsburg, etc., R. W. Co. v. Cope, 16 Ind. App. 579.
The judgment is affirmed.
ABATEMENT-Matter in abatement showing that an action was
prematurely brought cannot be pleaded with an answer in bar, see
PLEADING, 2; Voluntary Relief Department, etc., v. Spencer, 123.
A plea in abatement must precede an answer in bar, see PLEADING
1; Sanders, Admx., v. Hartge, 243.
1. Death While Engaged in an Unlawful Act.-Answer.-In an ac-
tion on an accident insurance policy exempting the company from
liability for death of insured while engaged in any unlawful act, an
answer attempting to set up as a defense a violation, by the insured,
of a statute forbidding seining in streams where the water is above
tidewater, which answer fails to allege that the seining was at a
point in the stream where the water was above tidewater, is insuffi-
cient on demurrer. Conboy v. Railway Officials, etc., Assn., 62.
2. Death During Violation of Law.-That death ensues during the
violation of a statute does not absolve an accident insurance com-
pany from liability under a provision of the policy exempting the
company from liability if death results from an unlawful act, unless
it appears that the act was one which increased the risk, and one be-
tween which and the death there was a causative connection. Ib.
3. Voluntary Exposure to Danger.-Answer.-In an action on an
accident insurance policy exempting the company from liability
for death of insured, resulting from a "voluntary exposure to un-
necessary danger or perilous venture," an answer alleging that de-
ceased at the time of his death was seining in the swift current of
a river in which there were sudden step-offs or holes, and that he
could not swim, and that he stepped into one of such holes and was
caught up by a swirl or eddy and was drowned, but which answer
fails to allege that the deceased knew of the dangers and volunta-
rily exposed himself thereto, is not sufficient on demurrer. Ib.
Railroad Relief Association.-Complaint.-A complaint in an ac-
tion against a railroad relief association alleging that on a specified
day plaintiff met with an accident wholly without any cause or
negligence on his part, and that he had fully complied with all the
terms of his contract, negatives the idea that he violated any con-
dition precedent to recovery under the rules of the association.
Voluntary Relief Department, etc., v Spencer, 123.
Railroad Relief Association.-Answer.-An answer, in an action
against a railroad relief association, setting up that the accident
for which plaintiff sued did not occur to plaintiff while in the per-
formance of the duties of his employment as required by the rules
of the association, but resulted from plaintiff voluntarily and un-
necessarily exposing himself to danger, when off duty, and while
seeking his own pleasure, is demurrable as stating conclusions
instead of facts.
6. Rules of Railroad Relief Association, When Void.-A rule of
a railroad relief association which makes any decision of the advi-
sory committee, with regard to an accident to a member, final and
conclusive upon all parties, without exception or appeal, is void as
an attempt to cut off the right to resort to the courts.
Ib.
Valid Rules of Relief Association.- The requirement that the
holder of a certificate of membership in a railroad relief association,
in the event of a controversy between such holder and the associa-
tion in reference to an indemnity claim, shall submit the same to
the superintendent for determination, is a condition precedent
which the holder must show he performed before bringing suit, or
show a valid reason for its nonperformance.
Ib.
ACTION—
Nature Of, How Determined. The question whether an action
in which a judgment was recovered was an action in tort or in con-
tract, must be determined by the pleadings in the cause in which
the judgment was rendered.
Green v. Simon, 360.
Action on Guardian's Bond an Action in Contract.—Exemp-
tion.-An action on a guardian's bond, under section 2691, Burns'
R. S. 1894, is an action in contract, within section 715, Burns' R. S.
1894, allowing a householder's exemption on execution or other final
process for any debt growing out of, or founded upon a contract.
Dismissal Of.- Payment of Costs Before Bringing Another
Action for Same Cause.-Discretion of Court.-Where à cause has
been voluntarily dismissed by the plaintiff, and the costs have been
awarded against him, and he has brought another action for the
same cause, an application of the defendant for a stay of proceedings
until the costs so awarded have been paid, or for the dismissal of the
second action because of nonpayment of such costs within a limited
time, is addressed to the sound discretion of the court.
Eigenman.v. Eastin, Admx., 580.
4. Dismissal of Action.-When Payment of Costs of Former Action
Should be Required Before Proceeding With Second Action.-An
application to prevent a party who has voluntarily dismissed his
cause of action from proceeding with a second action based upon
the same cause unless he pay the costs assessed against him in the
former one should not be sustained unless it appears to the court in
the exercise of a sound discretion under the facts and circumstances
of the particular case, that the second action is without merit, and is
vexatious.
Ib.
AFFIDAVITS-When bad for duplicity, see CRIMINAL LAW, 2, 3, 4;
Herron v. State, 161.
Sufficiency of to charge defendant with unlawfully acting as
agent of a foreign insurance company doing business without
authority, see CRIMINAL LAW, 6; State v. Campbell, 442.
Sufficiency in support of a motion for a new trial when party
claims to have been misled by court as to time of trial, see NEW
TRIAL, 2; Prudential Ins. Co. v. DeBord, 224.
Counter-affidavits may be filed questioning the credibility of newly
discovered evidence alleged in affidavits supporting motion for
new trial, see NEW TRIAL, 4; Hammond, etc., R. W. Co. v. Spyz-
chalski, 7.
Sufficiency of in an Action Against a Saloonkeeper for Allowing a
Minor to Loiter in a Saloon.-An affidavit against a saloonkeeper
under section 5 of the act of 1895 (Acts 1895, p. 248), for allowing a
minor to loiter in a saloon is not bad by reason of its failure to
charge that the offense was "uniawfully" committed.
AGENCY-See PRINCIPAL AND AGENT.
Liability of Agent for Act of Sub-Agent.-Fraud.-Statute of Lim-
itations.-B, a general loan agent, had an agreement with a
local loan agency by which such local agency was to receive ap-
plications for loans and forward same to B, and in the event
that a loan was thus made the commission paid was to be shared
by both. Through the local agency, A made application for a loan
which in pursuance of the agreement was procured by B, the gen-
eral agent, and a draft for the money, payable to A, was for-
warded to the local agents with instructions to see that all liens
and incumbrances were paid that were on the land offered for
security, and to complete the loan. The local agents notified A
that it was necessary for him to endorse the draft to them that they
might pay off a certain school fund mortgage, and the endorsement
was made. One of the local agents who was also county auditor,
fraudulently delivered up the school fund note and mortgage, fully
receipted and satisfied, but the school fund lien was not in fact
paid, but the amount thereof retained by the local agents. After-
wards the school fund mortgage was enforced against A. Held,
that A had a cause of action against B for the recovery of the
money. Held, also, that the acts of the auditor amounted to a
fraudulent concealment, and the statute of limitations did not be-
gin to run against A, the mortgagor, until knowledge came to him
of the fact that said mortgage had not been paid.
AGENT-See PRINCIPAL AND AGENT.
ALTERATION OF INSTRUMENT-Insertion of words descriptive
of payee not material alteration of note, see BILLS AND NOTES, 2;
Casto v. Evinger. 298.
AMENDMENT-Of pleading pending trial, see PRACTICE, 1; Brandt
v. State, ex rel., Boyer, 311.
Running at Large.—Public Highway is Not a Public Common.
-Statute Construed.-Cattle pasturing on the public highway
cannot be impounded under section 2833, Burns' R. S. 1894, which
provides that "Whenever any animal shall be found running at
large or pasturing upon any of the unenclosed lands or public com-
mons of any township in any county in this State, etc., any person
being a resident of said township shall be authorized to take up and
impound said animal in a private or public pound within said town-
ship," as it cannot be held that a public highway is a common or
an unenclosed piece of land. Beeson, by Next Friend v. Tice, 78.
When Running at Large.-Statute Construed.—Section 2838,
Burns' R. S. 1894, making it the duty of all road supervisors "upon
view or information, to cause all horses, mules, cattle, etc., running
at large upon the roads, commons or unenclosed lands within their
respective districts which are not authorized to run at large by
order of the board of commissioners, as by law provided, to be im-
pounded," etc., does not authorize the impounding of cattle pas-
turing on the public highway in charge of attendants, as such an-
imals are not running at large when so attended.
Ib.
3. Running at Large.-Statutes In Pari Materia Construed.—Con-
struing sections 2833 and 2838, Burns' R. S. 1894, together they would
not prevent the pasturing of stock on the public highway if the stock
at the time is in the care of some one and is not running at large, as
the former section applies to commons or unenclosed lands and the
latter section applies only to stock running at large.
Ib.
ANSWER-Sufficiency of by garnishee, see PLEADING, 17; Thompson
v. Shewalter, 290.
In an action on an accident insurance policy, see ACCIDENT INSUR-
ANCE, 3, 5; Conboy v. Railway Officials', etc., Assn., 62; Volun-
tary Relief Department, etc., v. Spencer, 123.
ANTENUPTIAL CONTRACT-When antenuptial contract does
not exempt the husband from liability for suitable burial expenses
of wife, see HUSBAND AND WIFE, 4; Scott v. Carothers, 673.
APPEAL AND ERROR-When a defect in a pleading may be taken
advantage of after judgment on default, see PLEADING, 20; Albany
Furniture Co. v. Merchants Nat'l. Bank, etc., 93.
Assignment of Errors.-Complaint.-An assignment of the in-
sufficiency of the complaint as error is unavailing if one paragraph
of the complaint is sufficient.
Axtell v. Workman, 152.
2. Assignment of Error.-Statute Construed.-Under section 667,
Burns' R. S. 1894, requiring that the assignment of errors shall be
specific, each specification of error must be complete in itself and
must in itself alone be sufficient to require the court on appeal to
review some action of the court below.
Louisville, etc., R. W. Co. v. Norman, 355.
3. Sufficiency of Complaint First Assailed by Assignment of Errors.
-Statute Construed.-The sufficiency of the facts stated in a com-
plaint may be raised for the first time by the assignment of errors in
this court under section 346, Burns' R. S. 1894, where the averment
of a substantive fact has been entirely omitted therefrom.
Western Assurance Co., etc., v. Koontz, 54.
4. Assignment of Error.-Special Finding.-Where there is a special
finding of facts and conclusions of law thereon, to present any ques-
tion in the appellate tribunal as to the correctness of the conclusions
of law, there must be an assignment of error that the court erred in
its conclusions of law. North British, etc., Ins. Co. v. Koontz, 625.
5. Assignment of Error.-As to Separate Paragraphs of Complaint.
-An assignment of error which seeks to question in the Appellate
Court for the first time the sufficiency of a separate paragraph of the
complaint presents no question for consideration, as nothing less
than an assignment that the complaint as an entirety does not state
facts sufficient will raise, for the first time on appeal, any question
concerning the sufficiency of any paragraph of complaint.
Louisville, etc., R. W. Co. v. Norman, 355.
Motion to Paragraph, not Available Error.-The overruling of a
motion to paragraph a complaint is not available errror.
Exception. Where no exception was taken to the action of the
court in sustaining a demurrer to a paragraph of answer no question
is presented to this court on such ruling.
Lake Erie, etc., R. R. Co. v. Bates, 386.
|