INDEX.

ACCIDENT INSURANCE-See INSURANCE.

1. Complaint.—Intentional Injury.-An averment in a complaint
on an accident insurance policy that the injury was inflicted "unin-
tentionally is not overcome by the statement that the person who
caused the injury was in a state of intoxication to such an extent
that he did not know that he was inflicting the injury.

2.

Northwestern, etc., Soc. v. Dudley, 327.

-

Payment.

Consideration for Issuance of Policy.
Special
Finding.-A finding in support of a judgment for plaintiff in an ac-
tion on an accident insurance policy is not fatally defective because
of failure to find that the policy was issued in consideration of any
payment by plaintiff, where it appears from the record that pay-
ment was treated as an admitted fact.

Northwestern, etc., Soc. v. Dudley, 327.
3. Intentional Injury.-Drunkards.-Evidence.-Special Finding.—
A finding in an action on an accident insurance policy for
benefits on account of injuries sustained by plaintiff from
an assault by an alleged drunken man that the person who com-
mitted the assault was intoxicated to such a degree that he did not
know that he was assaulting plaintiff is not sustained by the evi-
dence, where it was shown that he knew what he was doing up
until the time he committed the assault and that he washed the
blood from his own face and said he did not want it to get out how
he got the blood on his face.

Northwestern, etc., Soc. v. Dudley, 327.
4. Intentional Injury. — Drunkards.— Special Finding.-An acci-
dent insurance policy provided that benefits could not be recovered
for "intentional injuries inflicted by the insured or any other person."
Plaintiff brought suit for benefits for an injury to his thumb caused
by an intoxicated person. The court found that the person who com-
mitted the assault "was intoxicated to such a degree that he did not
know or realize the fact that he was assaulting or had assaulted the
plaintiff, and did not know at the time he was doing so that he was
biting or had bitten the plaintiff's thumb," etc. Held, that the find-
ing was equivalent to a finding that the injury was committed un-
intentionally.
Northwestern, etc., Soc. v. Dudley, 327.
5. Proofs.- Waiver.- Special Finding.-A finding upon which
judgment was rendered for plaintiff in an action on an
accident insurance policy is not defective because of the fail-
ure of the court to find that proofs were made prior to the bring-
ing of the suit, where it was found that notice of the injury accompa-
nied by the certificate of a physician was furnished, and that no
further notice, certificates or proofs of said injury were requested or
required from plaintiff on the part of the defendant.

VOL. 27-45

Northwestern, etc., Soc. v. Dudley, 327.

ADVERSE POSSESSION-
Childless Second Wife.—Rights of Children by Former Marriage.—
Title. In an action for partition it appeared that the real
estate in question was conveyed to plaintiff's father, who
died soon thereafter leaving a childless second wife, and
plaintiff and other children by a former marriage. About two
years after making such conveyance the grantor, having no title,
conveyed the same real estate to defendant's remote grantor, since
which time defendant and his remote grantors have held the ex-
clusive possession for twenty years, claiming to own the whole
thereof, and denying that said second wife and children had any
interest therein, and have excluded them from entering upon the
same or participating in the rents and profits thereof. At the death
of her stepmother plaintiff purchased the interests of the other heirs
and sought to enforce an undivided one-third interest in the real
estate. Held, that defendant had acquired title by adverse pos-
session.
Wood v. Ripley, 356.

AMENDMENT—Of complaint after submission of cause, see PLEAD-
ING, 1; Matthews v. Rund, 641.

of findings after judgment, see TRIAL, 19; Pollard v. First Ave.
Coal Mining Co., 196.

ANIMALS-Damages for animals killed on railroad tracks, see
RAILROADS, 4, 5; Chicago, etc., R. Co. v. Browers, 628.

ANSWER-Of non est factum, see PLEADING, 10; King v. Wright,

600.

Cannot be questioned for first time on appeal, see APPEAL AND
ERROR, 39; Stephens v. Smith, 507.

APPEAL-When "taken," see CRIMINAL LAW, 1; Nichols v. State,
444.

Action to compel trial judge to sign bill of exceptions, see MAN-
DAMUS; State, ex rel., v. Woodhull, 576.

APPEAL AND ERROR—

1. Appellate Jurisdiction. - Section 6 of the act of March 12,
1901 ($1337f Burns 1901), denying appeals in all cases where the
amount in controversy is within the jurisdiction of a justice of the
peace, and the construction of a statute or matters of constitutional
law are not involved, governs an appeal not perfected till April 27,
1901, though the appeal was granted March 8, 1901.

Southern Indiana R. Co. v. Thompson, 367.

2. Dismissal.- Failure to File Brief.-Where it appears from the
record that the Appellate Court has no jurisdiction of an appeal,
such appeal will be dismissed, although the appellee has not com-
plied with the rules of the Appellate Court in filing a brief in sup-
port of his motion. Southern Indiana R. Co. v. Thompson, 367.
3. Assignment of Error.-Conclusions of Law.-Conclusions of law
stated by the court on the special findings of facts must be ques-
tioned by an assignment of errors, not presented as reasons for a
new trial.
King v. Wright, 600.

4. Assignment of Error.- New Trial.- Assignments of error as
to the admission of certain evidence, in permitting certain ques-

APPEAL AND ERROR-Continued.

tions, and in refusing to strike out the testimony of a witness are
proper motions for a new trial, and present no question when
independently assigned as error on appeal. Stephens v. Smith, 507.
5. Assignment of Error.-Exceptions.-Available error cannot be
predicated upon a joint assignment of error upon the conclusions
of law, where the appellants did not join in exceptions to the con-
clusions of law.
Davis v. Seybold, 510.
6. Assignment of Error. - Exceptions. Where appellants sepa-
rately excepted "to the first, second, and third conclusions of law,"
but did not except to each conclusion, or to any one of them singly,
an assignment of error as to a single conclusion cannot be recog
nized.
Davis v. Seybold, 510.

7. Assignment of Error.-Causes for New Trial.-Assignments of
error, (1) “that the court erred in interrupting and stopping the
trial of the case while the evidence was being given," (2) "in inter-
rupting and stopping the trial of said cause and referring the same
to a master commissioner," (3) "overruling appellant's objection to
the master commissioner being allowed to fix the place of taking
the evidence," (4) "in overruling the appellant's objection to the
second report of the master commissioner," are all causes for a new
trial, and cannot be independently assigned as error.

Tilden v. Whitely, etc., Co., 53.
8. Joint Assignment.-A joint assignment of error directed to two
paragraphs of reply which is not good as to both paragraphs is
wholly bad.
King v. Wright, 600.

9. Joint Assignment.-Where an assignment of error was as to the
action of the court in overruling a demurrer to several paragraphs
of answer, one paragraph being good, error in the other paragraphs
was not available.
Stephens v. Smith, 507.
10. Original Bill of Exceptions.-Cannot Bring Up Instructions.-
Where a bill of exceptions is certified by the clerk to be the original
bill of exceptions containing the instructions given and those re-
fused, and also the evidence and rulings thereon, the bill, if properly
in the record, cannot bring up more than the evidence and the
rulings thereon, since the original bill of exceptions cannot present
instructions given or refused. Prudential Ins. Co. v. Sullivan, 30.
11. Bill of Exceptions.-Filing After Signing.-A record entry
shows that on the 4th day of December, 1899, appellant filed its bill
of exceptions number two, containing instructions and the evi-
dence. The bill purports to have been signed by the judge on the
2nd of January, 1900. After such bill, some blank leaves interven-
ing, there is a record entry as follows: "Now comes the defend-
ant by counsel and files its bill of exceptions herein." Held, that
it does not affirmatively appear that the bill containing the evi-
dence was filed after it was signed by the judge, since it was not
a bill of exceptions when filed on December 4th, and the entry fol-
lowing the bill on January 2nd does not identify the bill as number
two.
Prudential Ins. Co. v. Sullivan, 30.
12. Evidence.-Record.-Where a typewritten manuscript bearing
indications of being a report of the evidence taken in the cause, con-
taining the formal parts of a bill of exception, shown to have been
presented and signed by the judge within the time limited, and
to have been thereafter filed in the clerk's office, is incorporated in
the transcript and certified by the clerk as the original bill, the evi-
dence is properly before the Appellate Court for review.
Breedlove v. Breedlove, 560.

APPEAL AND ERROR-Continued.

13. Record.-Motion to Modify Judgment.-The action of the court
in overruling a motion to modify a judgment cannot be reviewed
on appeal where the motion was not preserved by bill of exceptions,
and was not incorporated in an order of court purporting to make
same a part of the record without a bill of exceptions.

Bartmess v. Holliday, 544.
14. Record.-Summons.-Process.--Where, on appeal, no summons
except that requiring an appearance of the defendants to the
plaintiff's complaint is shown by the record, it must be regarded as
shown that there was no other summons for a defendant who did
not appear in person or by attorney, since under §662 Burns 1901
a summons for a defendant who has not appeared to the action is
to be deemed a part of the record. Bartmess v. Holliday, 544.
15. Record-Where in an appeal by plaintiff neither the pleadings
nor the evidence is in the record, and the appellants' attorneys
assert that the action is to quiet title and for possession, and appel-
lees' attorneys contend that it is to quiet title only, and it appears
that if the action is to quiet title, it is bound by the statute of limi-
tation, the Appellate Court will not disturb the judgment of the
trial court.
Layman v. Buck, 320.

16. Motion Not in Record.-A motion to separate causes of action,
which was not brought into the record by bill of exceptions or by
order of court, cannot be considered on appeal. Skelleý v. Vail, 87.
17. Presumption.-Record.-Instructions.-Tendered Before Argu-
ment. Where the record fails to show that instructions were ten-
dered to the court before commencement of the argument, the
appellate tribunal will not consider the question of refusal to give
instructions, since it will be presumed that they were not tendered
in time.
Heintz v. Mueller, 42.
18. Transcript.-Precipe.-Only such papers and entries as are
designated in the precipe to the clerk are a part of the record on
appeal.
Schaeffer v. Rominger, 409.
19. Instructions.--Where the instructions considered together as a
whole state the law of the case correctly, error in a single instruc-
tion or clause of an instruction will not be cause for reversal.
Cleveland, etc., R. Co. v. Penketh, 210.
20. Instructions.-Record.-Alleged error of the court in refusing
to give certain instructions cannot be considered on appeal where
it affirmatively appears that all of the instructions given are not in
the record.
City of Indianapolis v. Mitchell, 589.
21. Record.-Instructions.-Instructions given by the court of its
own motion and ordered made part of the record without bill of ex-
ceptions which are not signed by the judge will not be reviewed on
appeal.
City of Indianapolis v. Mitchell, 589.
22. Record. Instructions.-A memorandum of exception signed
by the judge, as provided by $544 Burns 1901, will not make an in-
struction to which it is appended a part of the record.
City of Indianapolis v. Mitchell, 589.
23. Transcript.-Instructions. Instructions not mentioned in the
clerk's final certificate to the transcript are not properly in the rec-
ord.
Schaeffer v. Rominger, 409.
24. Motion for Change of Venue. — Review.- The overruling of
a motion for a change of venue will not be reviewed on appeal,
where a new trial was not asked on that ground.

Chicago, etc., R. Co. v. Weeks, 438.

APPEAL AND ERROR-Continued.

25. Denial of Application for Change of Venue.- Assignment of
Error.-Railroads.-Right of Way.-The denial of an application
for a change of venue in a proceeding for the appropriation of land
for a railroad right of way cannot be questioned by an independent
assignment of error on appeal, but must be stated as a ground in
a motion for a new trial. Chicago, etc., R. Co. v. Curless, 306..
26. Motion for New Venire.-New Trial.-Review.-The refusal of
a jury other than the regular panel is not ground for an independent
assignment of error, and must be presented as a cause for a new trial.
Chicago, etc., R. Co. v. Weeks, 438.

27. New Trial.-A motion for a new trial because of the admission
or exclusion of evidence must point out with reasonable certainty
the evidence admitted or excluded and to which complaint is made.
Felt v. East Chicago, etc., Co., 494.

28. New Trial.—Causes.- Assignments that "the judgment is
contrary to the law and the evidence", and that "the judgment
is contrary to the weight of the evidence", do not come
within the requirements of subdivision six, §568 Burns 1901, "that
the verdict or decision is not sustained by sufficient evidence, or is
contrary to law.'
Felt v. East Chicago, etc., Co., 494.
29. Conclusions of Law.-Exceptions.-Where a judgment con-
forms to the conclusions of law, and there is no assignment
of error as to the conclusions of law, no question can be presented
on appeal as to a motion for judgment.

Lake Erie, etc., R. Co. v. Essington, 291.
30. Exception to Conclusions of Law.-No question is presented
on appeal upon an exception to a conclusion of law where the
exception was not taken at the time the conclusion of law was
announced.
Repp v. Lesher, 360.

31. Conflicting Evidence.-The Appellate Court will not disturb a
verdict on conflicting evidence. Chicago, etc., R. Co. v. Curless, 306.
32. Trial.—Evidence.-Objections Not Made to Trial Court.—An
objection to the admission of evidence which was not suggested to
the trial court will not be considered on appeal.

Allen v. Indianapolis Oil Co., 158.
33. Finding.-Sufficiency of Evidence.-Conflicting Evidence.-The
appellate tribunal will not disturb a finding by the trial court
where there is evidence from which the facts found might have
been fairly drawn.
Heintz v. Mueller, 42.
34. Evidence Not in Record.-Alleged error of court in overruling
a motion for a new trial, asked on the ground that the finding was
contrary to the law and the evidence, will not be reviewed on appeal
when the evidence is not in the record.

State Building, etc., Assn. v. Brackin, 677.
35. Harmless Error.-Admission of Improper Evidence.-Where it
appears from the record that a correct result was reached and sub-
stantial justice done between the parties, a judgment will not be
reversed because of the admission of improper evidence which was
harmless to the complaining party.

Indiana, etc., Gas Co. v. Long, 219.
36. Exceptions.—Parties.—The words "et al.," following the name
of one of several codefendants in an exception to the action of the
court in overruling a joint and several demurrer, are without effect,
and an assignment of error by all of the defendants based upon such
exception presents no question on appeal. Bonham v. McGeath, 436.