Douglass et al. v. Keehn. opinion, that the judgment below be, and the same is, in all things, reversed, at appellee's cost, and that the cause be remanded, with instructions to the court below to sustain the demurrer to the complaint, and for further proceedings in accordance with this opinion. No. 8528. DOUGLASS ET AL. v. KEEHN. PRACTICE.-Judgment.-Record.-Motion to Supply Omission.-Limitation.—A proceeding to correct the record of a judgment rendered December 11th, 1877, by a motion to supply an omission, filed January 14th, 1880, under section 99, 2 R. S. 1876, p. 82, came too late and should have been dismissed because not commenced within two years. SAME.-Pleading. In such a proceeding no formal pleading beyond the complaint, or motion, is necessary, and the application should be heard and decided in a summary manner. SAME.-Objection to the proceeding may be made by a motion to quash, or to dismiss, for reasons apparent upon the face of the pleading and accompanying affidavits. From the Kosciusko Circuit Court. C. Clemans and A. C. Clemans, for appellants. BICKNELL, C. C.-This was a written motion by the appellee to correct the record of a judgment, by supplying an alleged omission therein, so as to make it show that the original note therein sued on was filed with the complaint; annexed to the motion was an affidavit in support thereof by the attorney of the appellee. The appellants appeared without process and moved to dismiss the motion because it was filed more than two years after the rendition of the judgment, as was shown by the motion itself. The motion to dismiss was overruled. 78 199 130 429 78 199 139 27 Douglass et al. v. Keehn. The appellants then filed a demurrer to the motion for two causes, to wit: 1st. That the court had no jurisdiction of the motion. 2d. That the motion did not state facts sufficient, etc. The demurrer was overruled; the appellants then answered the motion by a general denial, and the record says, "the cause was submitted to the court for determination upon the pleadings and proofs." The court found for the appellee, and rendered judgment that the record be amended so as to recite that the original note, therein sued on, was filed with the complaint as an exhibit thereto. Motions of the appellee for a new trial and in arrest of judgment were overruled, and the appellants excepted, and appealed from the judgment. They assign errors as follows: 1. In overruling the motion to dismiss; 2. In overruling the demurrer to the motion; 3. In overruling the motion in arrest of judgment; 4. In overruling the motion for a new trial. The following were the causes alleged for the new trial: 1. The finding is contrary to evidence; 2. The finding is contrary to law; 3. The finding is against the weight of the evidence. In the foregoing proceedings there were several irregularities. Originally, such relief was granted upon motion only. Under the amendment of section 99 of the practice act, adopted in 1867, Acts 1867, p. 100, the proceeding may be by complaint or motion. Smith v. Noe, 30 Ind. 117. But, in either of these modes, no formal pleadings are necessary beyond the complaint, or motion. Nord v. Marty, 56 Ind. 531. The answer, therefore, and the demurrer and the submission of the cause upon the pleadings and proofs, were all irregular. Lake v. Jones, 49 Ind. 297. The application, whether by complaint or motion, is a summary proceeding and should be heard in a summary manner, upon the depositions, affidavits or oral testimony of both parties, except that when the applicant is required to show a meritorious cause of action or de Douglass et al. v. Keehn. fence, there can be no counter affidavits or contradicting evidence upon that matter. Ratliff v. Baldwin, 29 Ind. 16; Buck v. Havens, 40 Ind. 221. If such a complaint or motion, and the affidavits filed therewith, are insufficient to warrant any relief, the objection is properly made by motion to quash or to dismiss the proceeding. Such a motion was made in this case, and it ought to have been sustained, because it appeared upon the face of the proceeding, that the motion was made more than two years after the judgment was rendered in which the omission was sought to be supplied. within Where a proper case is made under section 99, supra, the time limited by that section, the court is bound to grant the proper relief. Phelps v. Osgood, 34 Ind. 150. The party must not only file his motion or complaint within the two years prescribed by said section, but he must issue his process thereupon within the two years. Temple v. Irvin, 34 Ind. 412. In the case at bar, the judgment was rendered on December 11th, 1877, and the motion was filed on January 14th, 1880. The court therefore erred in overruling the motion to dismiss the proceeding, and for this error the judgment of the court below ought to be reversed, and this proceeding should be remanded with instructions to the court below to sustain the defendants' motion to dismiss the proceeding. PER CURIAM.-It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court below be, and it is hereby, in all things reversed, at the costs of the appellee, and this cause is remanded with instructions to the court below to dismiss the proceeding. American Insurance Company v. Yearick. 78 202 135 590 No. 7716. AMERICAN INSURANCE COMPANY v. YEARICK. PRACTICE.-Demurrer.-Exception.-An exception to the overruling of a demurrer must be taken at the time of the decision. It is not saved if, at a subsequent term, the party announces that he will abide by the demurrer, and excepts to the ruling made at the prior term. From the Marshall Circuit Court. W. B. Hess, for appellant. A. C. Capron and C. Richardson, for appellee. WOODS, J.-At the November term, 1877, of the circuit court, a demurrer was sustained to the appellant's complaint. No exception was noted or taken to the ruling at the time when it was made, and no further step taken in the case until the following September term, when the following order-book entry was made: "Come again the parties by counsel, and the plaintiff says he will not amend his complaint, but abides the demurrer, and excepts to the ruling of the court in sustaining the demurrer." The court thereupon gave judgment for the appellee, from which the plaintiff has appealed, and insists that the ruling upon the demurrer was erroneous. The appellee, however, claims that an exception to the ruling has not been saved; and in this view we are constrained to concur. The rule of the code, R. S. 1881, section 626, is explicit, that an exception to any ruling of the court must be taken "at the time the decision is made;" and, reading sections 343 and 345 together, it is plain that the rule is, in this respect, the same, whether the exception must be saved by a bill of exceptions, or by "causing it to be noted at the end of the decision." However technical the rule may seem to be as applied to the case in hand, it is nevertheless the rule, and, in its general application, unquestionably salutary; and we can not undertake to create and define exceptions to it. The judgment is affirmed, with costs. The Pennsylvania Company v. Hoagland et ux. No. 7149. THE PENNSYLVANIA COMPANY v. HOAGLAND ET UX. NEGLIGENCE.—Railroad.—Passenger Trains.—Rights of Passengers.-Contributory Negligence.-A passenger on a passenger train, unacquainted with the route of the railroad, and with the location of towns and cities along such route, may lawfully rely upon the statements of the conductor and brakemen in charge of the train, in regard to his stopping-place; and if, so relying, such passenger leaves the train at the wrong place, and is damaged thereby, the railroad company will be liable to such passenger for such damages, induced by the negligence of its agents in charge of the train, if there be no contributory negligence of such passenger. WOODS, J., dissents. PRACTICE.-Admission of Evidence.—Grounds of Objection.-Supreme Court.— Where, on the trial of a cause, a party objects to a question put to a witness, the record must show that the party stated to the court the grounds of his objection, or the action of the court thereon will not be considered by the Supreme Court. In such a case, the party can not state one ground of objection to the trial court, and insist upon other and different grounds in the Supreme Court. From the Porter Circuit Court. J. Brackenridge, J. R. Carey, A. Zollars and F. T. Zollars, for appellant. G. W. Beeman, for appellees. Howk, J.-This suit was commenced by the appellees, in the Starke Circuit Court, to recover damages for injuries alleged to have been sustained by the appellee Hattie E. Hoagland, the wife of her co-appellee, from the fault and negligence of the appellant's servants, and without fault on her part. The appellant answered, by a general denial of the complaint; and, on its application, the venue of the cause was changed to the court below. The issues joined were there tried by a jury, and a special verdict was returned, in substance, as follows: "We, the jury, having been required to find a special verdict in this cause, do find the facts therein to be as follows: "1. The defendant is a railroad corporation, operating a railroad extending from the city of Chicago, in the State of 78 203 152 671 |