Marks v. The Indianapolis, Bloomington, and Western Railway Company.

his complaint the following facts: That about the -day of June, 1868, the firm of R. F. Johnson & Co. were subcontractors in the construction of a part of the road of the Indianapolis, Crawfordsville, and Danville Railroad Company; that said firm employed the plaintiff to work for them, and became indebted to plaintiff for such work, in the sum of one hundred and twenty-four dollars and thirtyseven cents, the work being done in and about the construction of the railroad of said Indianapolis, Crawfordsville, and Danville Railroad Company; that said Johnson and company afterward absconded and went to parts unknown, leaving the said debt unpaid, and no property of any kind subject to any process of law; that, although he demanded payment of said indebtedness from said Indianapolis, Crawfordsville, and Danville Railroad Company, the said company wholly refused to pay the same; that after the said work was done and payment demanded, the said Indianapolis, Crawfordsville, and Danville Railroad Company became consolidated with other companies, whose names are to plaintiff unknown, and formed the company known as the Indianapolis, Bloomington, and Western Railway Company; that said indebtedness is still due and unpaid. Wherefore, etc.

The defendant demurred to the complaint, for the reasons that there was a defect of parties, and that it did not state facts sufficient to constitute a cause of action.

The demurrer was sustained, and the complaint held to be insufficient and bad. The plaintiff excepted, final judgment was rendered against him, and he appealed to this court. The only error assigned is the sustaining of the demurrer.

As to the first ground of demurrer, it has been several times held by this court that a demurrer therefor must point out or name the party omitted.

On this point we refer to the following cases in this court: Gaines v. Walker, 16 Ind. 361; Musselman v. Kent, 33 Ind. 452.

Upon the ground that the facts stated are not sufficient to constitute a cause of action, we think the demurrer was

Baily et al. v. Baily.

properly sustained by the court. Counsel for appellant relies upon the act of December 20th, 1865, amending section 38 of the general railroad law, which reads as follows: "The stockholders shall be individually liable to laborers, their executors, administrators and assigns, for all labor done in the construction of said road, that shall remain unpaid after the assets of the corporation shall have been exhausted." 3 Ind. Stat. 386.

We think that, upon the facts stated, this statute does not create a liability on the part of the railroad company to the plaintiff for the indebtedness in question.

The judgment is affirmed, with costs.

L. Wallace, for appellant.

C. Black, S. C. Willson, L. B. Willson, and F. M. Butler, for appellee.

BAILY ET AL. v. BAILY.

VENDOR AND PURCHASER.-Unrecorded Deed.-A purchaser, for a valuable consideration and without notice, will be protected against an unrecorded deed.

APPEAL from the Morgan Circuit Court.

BUSKIRK, J.-The appellee filed her complaint in the court below, setting up that she had obtained a divorce and decree for twelve hundred and fifty dollars alimony against one Sylvester Baily, which was unsatisfied; that Tilford Baily had, prior to the decree for alimony, executed to said Sylvester a deed for a tract of fifty acres of land described in the complaint; that said Sylvester enlisted in the army and delivered the deed, for safe-keeping, to the said Tilford, the father of the said Sylvester; that the said Tilford agreed to have the deed recorded for the use of Sylvester; that Sylvester deserted the army, was guilty of high crimes, and fled the country to parts unknown; that Tilford then, to cheat said Josephine out of her alimony, destroyed the deed, and re

Nave. The Indianapolis and St. Louis Railroad Company.

fused to have it recorded, and sold the land to Pearcy, who, it is averred, had notice of the execution and destruction of the deed from Tilford Baily to Sylvester Baily. Prayer that the deed from Tilford Baily to Jacob Pearcy be set aside, the title to the land be declared in said Sylvester, and the land subjected to the decree for alimony.

The defendants answered by a denial. Trial by a jury; finding for plaintiff against both defendants; motion for new trial overruled, and exception taken. The appellants have assigned for error that the court erred in overruling the motion for a new trial. We have examined the evidence, and are of the opinion that the verdict as. to Tilford Baily was justified by the evidence, but we are equally clear that there was an entire failure of proof to show that Pearcy had any notice of the execution and destruction of the deed from Tilford to Sylvester, or that he was in any manner cognizant of, or a party to, any fraud. He seems to have been a purchaser in good faith, and for a valuable consideration. The court erred in overruling the motion for a new trial..

The judgment is reversed, with costs; and the appellee having waived a petition for a rehearing, the clerk will immediately certify this opinion; and the cause is remanded for further proceedings, in accordance with this opinion.

W. R. Harrison and W. S. Shirley, for appellants.

NAVE V. THE INDIANAPOLIS AND ST. LOUIS RAILROAD COM

PANY.

APPEAL from the Hendricks Circuit Court.

WORDEN, C. J.-This case is like that of Straughan v. The Indianapolis and St. Louis Railroad Company, ante, p. 185; and the judgment must be affirmed for the reasons given in that case.

The Travellers' Insurance Company v. Leeds.

The judgment below is affirmed, with costs and five per

cent. damages.

C. C. Nave and

Nave, for appellant.

M. A. Osborn and L. Ritter, for appellee.

38 444 135 678

THE TRAVELLERS' INSURANCE COMPANY V. LEEDS.

PRACTICE. Judge pro Tem.-Where a motion for a new trial is heard by one acting as judge pro tem., who did not hear the evidence, and a bill of excep tions is signed by him in vacation, no reason being shown why the regular judge who heard the evidence did not sign the same, the bill of exceptions will be disregarded.

APPEAL from the Howard Circuit Court.

DOWNEY, J.-Suit by the appellee against the appellant on a policy of insurance by which the defendant insured the plaintiff against loss or damage from accident. The cause was tried at the November term, 1869, and there was a verdict for the plaintiff, and a motion was made for a new trial. On a subsequent day of the term, this motion was heard and overruled by Hon. D. Moss, judge pro tem., and sixty days given in which to file a bill of exceptions. The bill of exceptions was filed on the 5th day of February, 1870, in vacation, signed by Mr. Moss.

A motion is made to strike the bill of exceptions from the record, for the reason that it could not be properly signed by Moss.

We are of the opinion, that as it is not shown that the bill of exceptions, containing the evidence given on the trial when the regular judge was presiding, could not be signed by him; and as Mr. Moss did not hear the evidence as judge, at the trial, he could not sign the bill of exceptions in vacation, after the close of the term in which he presided, setting forth the evidence and what occurred during

The Travellers' Insurance Company v. Leeds.

the trial; and are, therefore, of the opinion that the bill of exceptions is not properly a part of the record.

There being no question made in this case by the appellant, except as to errors alleged to have occurred during the trial, which could only be shown by the bill of exceptions, and the bill of exceptions not being properly in the record, we cannot consider such questions or reverse the judgment. The judgment is affirmed, with costs.

R. Vaile, F. W. Gordon, T. M. Browne, and R. N. Lamb, for appellant.

7. H. Kroh and C. N. Pollard, for appellee.