Insurance Loss.-Where a policy of insurance covers many different
articles, and the parties fix the different values of articles destroyed,
and the company agrees to pay such amount, an action may be
maintained as on an account stated.
Farmers Ins. Assn. v. Reavis, 321.
1. Admission of Occupant.-Where the evidence shows that cross-
complainant and his grantors have held possession of lands since 1840,
apparently as owners, and that one of such grantors between
1874 and 1880 said to a witness that he did not claim such real
estate, such statement could not operate to defeat such person's title,
since the prescriptive period had already run prior to the making of
such statement and the title, thereto had vested.
Rennert v. Shirk, 542.
2. Burden of Proof.-When the plaintiff shows that he has been in
the possession of property for the period of twenty years, apparently
as owner, the presumption is that such occupancy was under a claim
of right, and it is necessary for defendant to go forward with the
proof to show that such occupancy was not under a claim of right.
Rennert v. Shirk, 542.
3. "Claim of Right."-How Proved.-To prove a "claim of right,"
oral declarations are not necessary. It may be inferred from the
manner of occupancy and positive acts of ownership inconsistent
with the ownership of the true owner, and from erecting, repairing,
occupying or leasing buildings thereon, and from offering to sell
and convey.
Rennert v. Shirk, 542.
4. Elements of.-Adverse possession consists in the actual, open, no-
torious, exclusive and continuous possession of lands under a claim
of right.
Rennert v. Shirk, 542.
5. "Exclusive" Possession.—Evidence.-Where the evidence shows
that cross-complainant and his grantors had held possession of the
real estate in question, apparently as owners, for over forty years,
and the paper title owner builds a house with the eaves projecting
over the land so held by prescription, this does not defeat such title
by prescription, for it had ripened into title prior thereto, the pro-
jection having been made less than twenty years before the action
was brought.
Rennert v. Shirk, 542.
6. Instruction.-Where, in an action for trespass, the plaintiff claim-
ing title by adverse possession, an instruction is given that if the
plaintiff and his predecessors in interest had occupied such lands
for twenty years prior to the alleged trespass, and such occupancy
was open, notorious, visible, adverse, and under claim of right for
such length of time, such instruction is sufficient to show that such
possession must have been "continuous."
Fatic v. Myer, 401.
7. Occupancy by Mistake of True Line.-An occupant who by mis-
take takes actual, visible and exclusive possession of another's lands
by mistake and holds the same for twenty years as his own, acquires
a title in fee simple.
Rennert v. Shirk, 542.
8. Subsequent Survey by Agreement.-Effect of on Title.-Where
plaintiff has held title by adverse possession for more than twenty
years, a subsequent survey made by his agreement will not have the
effect of divesting his title.
Fatic v. Myer, 401.
Insane person can not create, see INSANE PERSONS, 1; Chase v. Chase,
178.
Of statute, without amending title to conform, see STATUTES, 2; Voss
v. Waterloo Water Co., 69.
Questions raised on appeal from board of commissioners, see DRAINS,
7; Strayer v. Taylor, 230.
From board of commissioners to circuit court, transcript on-See
PLEADING, 30-33; Strebin v. Lavengood, 478.
Right of, in cases within jurisdiction of a justice, see STATUTES, 4;
Knowlton v. Smith, 294.
Payment of judgment by defendant does not prevent, see JUDGMENT,
1; Cleveland, etc., R. Co. v. Nowlin, 497.
That payment of judgment does not prevent appeal from inferior to
circuit court, see JUDGMENT, 2; Cleveland, etc., R. Co. v. Nowlin,
497.
1. Amount in Controversy.-Where an action is brought to enforce a
mechanic's lien, and the amount recovered was $42.50 exclusive of
costs, an appeal lies to the Appellate Court notwithstanding Acts
1903, p. 280, regulating appeals of the Supreme and Appellate
Courts.
Knowlton v. Smith, 294.
2. Appellate to Supreme.-When Lies.-Amount in Controversy.—
Where, in an action for the recovery of $10,000 damages for per-
sonal injuries, a judgment is rendered in the trial court for defend-
ants, and such judgment is affirmed by the Appellate Court, an ap-
peal from the Appellate to the Supreme Court does not lie under
subdivision 3, §1337j Burns 1901 (Acts 1901, p. 565), since the test
of the right of appeal in such section is the amount of the judgment
and not the amount asked in the pleadings.
Crum v. North Vernon Pump, etc., Co., 596.
3. From Appellate Court.-Questions Presented for Review.-Where
an appeal is taken from a division of the Appellate Court, the errors
assigned for review in such division are properly presented for the
decision of the Supreme Court.
City of Michigan City v. Phillips, 449.
4. Assignment of Error to Conclusions of Law.-An assignment that
the court erred in its conclusions of law is joint, and can not be sus-
tained where it is not contended that all the conclusions of law on
the facts found are erroneous.
Wolverton v. Wolverton, 26.
5. Joint Assignment.-Where a complaint is in three paragraphs, and
the answer thereto is in seven paragraphs, the first five of which
are addressed exclusively to the second and third paragraphs of com-
APPEAL AND ERROR-Continued.
plaint, and the sixth is addressed exclusively to the first paragraph
thereof, and a several demurrer is filed to each of such paragraphs,
and one of the errors assigned is that "the court erred in overruling
the demurrer of appellant to the 1st, 2d, 3d, 4th, 5th and 6th para-
graphs of answer," the assignment is joint, and if any one of such
answers is good no error is presented.
Cambridge Lodge, etc., v. Routh, 1.
6. Improper Assignment.-Where the trial is by the court, and the
finding a general one, an assignment of error, charging that the
court erred in finding certain things as facts in such cause, presents
no question for review, since such error can not be assigned inde-
pendently, but must be included in the motion for a new trial.
Partner v. Citizens Loan, etc., Co., 303.
7. Bill of Exceptions.-Time for Filing.-Where a criminal cause was
tried at the September term of court and no time given the State
as provided by $1916 Burns 1901, to file a bill of exceptions, and
the bill was not filed until the 2d day of the November term, such
bill is not in the record, and can not be considered.
State v. Chenoweth, 94.
9. Bill of Exceptions.-Where the clerk's certificate, authenticating
the record, bears date of June 24, 1903, and the bill of exceptions
containing the evidence was not signed by the judge until July 27,
1903, such bill is not in the record. Nurrenbern v. Daniels, 301.
10. Bill of Exceptions.—Time of Signing and Filing.—Where the rec-
ord is silent as to whether a bill of exceptions was signed before it
was filed, but shows that such signing and filing occurred on the
same day, the presumption is that the signing preceded the filing.
Toledo, etc., R. Co. v. Parks, 592.
11. Bill of Exceptions.-Where a precipe calls for a "transcript" of
the record, and the clerk certifies the original bill of exceptions, it
is not a part of the record and can not be considered. Tombaugh v.
Grogg, 156 Ind. 355, overruled.
Boos v. Lang, 445; Tomlinson v. Bainaka, 112.
12. Bill of Exceptions.-Time for Filing.-Where a motion for a new
trial in a criminal case was filed and overruled and judgment pro-
nounced, and the defendant then filed his application to prosecute
his appeal as a poor person, which motion was continued until the
next term of court and then granted and leave then given in which
to file a bill of exceptions, such bill filed in pursuance thereof is not
in the record.
Meyers v. State, 345.
13. Decedents' Estates.-What Statute Governs.-Where an adminis-
trator files his report, claiming therein certain sums for his own
services, which sums were disallowed, and he takes an appeal as
administrator and also as an individual from such disallowance, such
appeal is governed by §§2609, 2610 Burns 1901.
Moore v. Ferguson, 395.
14. Death of Party.-Substitution of Personal Representative or
Heirs.-Where, in a proceeding to establish a ditch and assess the
costs thereof against the lands benefited, a remonstrator dies after
judgment but before appeal, an appeal making his personal repre-
sentative, but not his heirs at law, a party appellee, must be dis-
missed, since by $272 Burns 1901, where a party dies the action
shall not abate, if the cause of action survive, but it may be con-
tinued against his representative "or successor in interest," and the
APPEAL AND ERROR-Continued.
proceeding in this cause being one in rem to charge the real estate,
the successors in interest are the heirs at law to whom the real
estate descended.
Rich Grove Tp. v. Emmett, 560.
15. Conflicting Evidence.-Where there is a conflict in the evidence
the court will not disturb the verdict.
Southern Ind. R. Co. v. Fine, 617.
16. Instructions.-How Brought Into Record.-Where the record
shows that the instructions given and those tendered and refused
in a cause were not filed as required by §542 Burns 1901, nor brought
into the record by a bill of exceptions, they are not in the record.
Chicago, etc., R. Co. v. Wysor Land Co., 288.
17. Instructions.-How Shown by Record. Where the record fails to
show that it contains all of the instructions given in the case, no
question as to those given or refused is presented.
Chicago, etc., R. Co. v. Wysor Land Co., 288.
18. Instructions.-How Made Part of Record. Where the instruc-
tions are made part of the record under §542 Burns 1901, it must
affirmatively appear that they were severally signed by the trial
judge.
City of Michigan City v. Phillips, 449.
19. Instructions.-Instructions given and refused can not be made a
part of the record on appeal by being incorporated into original bill
of exceptions, containing the evidence and certified up as a part of
such bill.
City of Michigan City v. Phillips, 449.
20. Interlocutory Orders.-What Questions Raised on Appeal.-
Where an appeal is taken from an interlocutory order granting or
refusing to modify an injunction the question presented is not
whether the case made would entitle the plaintiff to relief at the
final hearing, but whether the pleadings and evidence furnish such
a state of facts as makes the transaction a proper subject for in-
vestigation in a court of equity.
Gagnon v. French Lick Springs Hotel Co., 687.
21. Interlocutory Orders.-Appeal from Several Orders in Single Case.
-How Taken.-Where all the interlocutory orders appealed from
were in the same cause, and the appeal as to each decision complained
of was taken within the time prescribed by statute ($659 Burns
1901), all such orders are properly included in a single appeal.
Gagnon v. French Lick Springs Hotel Co., 687.
22. Motion to Make More Specific.-How Made Part of Record.—
Error in overruling a motion to make more specific is not available
on appeal under the law prior to 1903, where the motion, the ruling
thereon, or the exception thereto is not made part of the record by
an order of the court or by bill of exceptions.
Mondamin, etc., Dairy Co. v. Brudi, 642.
23. Moot Question.-Dismissal.-Where an action in mandamus
against the mayor of a city was brought by an owner of a lot abut-
ting an alley, for the removal of an obstruction in said alley, and the
defense was that a certain other abutter owned the alley and denied
the dedication thereof to public use, and, on the trial, judgment was
rendered for plaintiff, and during the pendency of the appeal such lot
owner claiming to own such alley conveyed her premises, and the
grantee removed such obstructions and restored the alley to public
use, such appeal will be dismissed as presenting only a moot question.
Dunn v. State, ex rel., 317.
23. Dismissal of Appeal.-When the question presented on appeal
becomes of no practical importance, the appeal will be dismissed.
State, ex rel., v. Indianapolis Gas Co., 48.
APPEAL AND ERROR-Continued.
24. Parties. Failure to Make Estate a Party Appellee.-Dismissal.—
Where the probate court makes an order disallowing the administra-
tor's charges for services, and he takes an appeal therefrom, he must
make himself as administrator of such estate a party appellee and not
a party appellant, since such order of disallowance is in favor of such
estate and it has no cause for complaint, and where such administra-
tor is not made an appellee such appeal will be dismissed.
Moore v. Ferguson, 395.
25. Record.-Defective Assignment of Errors.-Where an assignment
alleges that there is "error in the foregoing record," but yet specifies
the particular ruling of the court upon which error is predicated, it
is sufficient.
Consumers Gas Trust Co. v. Howard, 170.
Receiving Money on Judgment.-Dismissal.-Where the appellant
accepts payment of the judgment appealed from, even though done
for the accommodation of the appellee and with an agreement that
such acceptance shall not affect its rights on appeal, a motion to dis-
miss will be sustained. Mutual Benefit Life Ins. Co. v. Simpson, 10.
27. What Brief Shall Contain.-Under Supreme Court rule twenty-
two, clause five, providing that appellant's brief shall contain so
much of the record as presents the exception relied on, where appel-
lant, complaining of the ruling of the court sustaining an objection
to a question asked a witness as to his opinion, failed to set forth in
his brief that the witness has shown his competency, or to set out the
testimony of the witness, the assignment of error will not be con-
sidered.
Lake Erie, etc., R. Co. v. Shelley, 36.
28. Review of Alleged Errors.-Where alleged errors in conclusions of
law were not set out separately in the assignment of errors, and sep-
arately numbered and stated in the brief, under proper headings, with
propositions or points relied on to support each separate error, to-
gether with citation of authorities to support them, under proper
headings, as required by Supreme Court rule 22, such alleged errors
can not be reviewed.
Wolverton v. Wolverton, 26.
29. Failure to Set Out Record in Brief.-Supreme Court Rules.-
Harmless Error.-Where the appellant fails to set out in his brief
the part of the record relied upon for reversal as required by clause
five, rule twenty-two, the court will consider the error as waived,
but where the appellee's brief does set out such record, it will be
considered, as the purpose of the rule is accomplished.
Chicago, etc., R. Co. v. Wysor Land Co., 288.
30. Insufficient Brief.-Supreme Court Rules.-Where those parts of
the record relied upon are not set out, nor a concise statement given
in the appellant's brief, as required by rule twenty-two, clause five,
no question thereon is presented.
Chicago, etc., R. Co. v. Wysor Land Co., 288.
31. Motion for Judgment Non Obstante.-Waiver.-Supreme Court
Rules. Where an assignment of error in the Appellate Court ques-
tions the ruling of the trial court on a motion for judgment non
obstante, and the appellant has not set out the interrogatories to
the jury and answers thereto in his brief, nor given a condensed
recital thereof, as required by rule twenty-two, clause five, of the
Supreme Court, such error is waived. Nurrenbern v. Daniels, 301.
32. Failure of Appellee to File Brief.-Supreme Court Rules.-Re-
versal. Where the appellee negligently allows the time to pass
in which, by the rules of the Supreme Court (rule twenty-one), his
brief is required to be filed, the cause will be reversed without prej-
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