(133 N.E.) "Comes now the plaintiff in person and by his attorneys, Frank Ely and Harry W. Carpenter; but the defendant comes not, either in person or by attorney, and this being the day that said cause was assigned for trial, and now the defendant, being three times solemnly called in open court, comes not, but herein wholly makes default. And now said cause is submitted to the court for trial, finding, and judgment without the intervention of a jury." the court in refusing to set aside said judgment and grant a new trial. The law does not require that courts shall do useless things. The appellant either did, or did not, have a defense to appellee's cause of action. If he had no defense thereto-if he had been guilty of doing the wrongful act complained of whereby appellee had sustained damagethen appellee would, upon another trial, be entitled to the relief granted in the trial The record further discloses that the cause already had, and such second trial would was then and there heard by the court and avail nothing. Hence we have the rule that a finding made in favor of appellee, with in cases of this kind the application must judgment and decree accordingly. It further show that the applicant has a valid or merappears by said record that after the submis-itorious defense to the original action, and sion of said cause and upon the trial thereof it must state what that defense is. Rupert the appellee asked leave of the court to v. Martz, 116 Ind. 72, 18 N. E. 381; Zeigler amend the prayer of his complaint in the v. Funkhouser, 42 Ind. App. 428, 85 N. E. amount of the damages asked, so that said 984; Rooker v. Bruce, 171 Ind. 86, 85 N. prayer would read "four hundred dollars," E. 351. The appellant in his said petition alinstead of "three hundred dollars," as the leged: same was originally filed, which leave the court granted and the complaint was so amended. It further appears that on the 17th day of May, 1920, the appellant by his attorneys appeared in court and filed their petition to set aside said judgment, under the provisions of section 405, Burns 1914. On the 27th day of May, 1920, the said court, having considered said motion and the evidence offered in support thereof, overruled the same, and appellant was given 30 days in which to prepare and present a bill of exceptions. Thereafter, on the 1st day of June, 1920, the appellant filed his motion for a new trial in the above cause, assigning various reasons therefor, not necessary to be set out in this opinion. This motion was finally overruled May 26, 1921, at which time appellant prayed an appeal to this court, and time was given in which to file bond and bill of exceptions, which were thereafter duly filed and this appeal duly perfected. The errors assigned and presented relate (1) to the action of the court in overruling appellant's motion to set aside said judgment; (2) permitting appellee to amend his complaint in the respect stated; (3) the trial and rendition of judgment in said cause in the absence of defendant; and (4) that the decision of the court is contrary to law. It appears from this record that the parties hereto are the owners of adjacent tracts of land in Pike county; that 40 acres owned by the appellant adjoins 40 acres owned by the appellee on the north, the two 40's comprising the west half of the northeast quarter of section 13, township 3 south, and range 8 west. By the complaint herein the appellee sought to have a certain private nuisance a ditch constructed by the appellant on the line between the lands ownd by the respective parties-abated, and he asked also for a money judgment for damages which he alleged he had suffered. "That he has a good and meritorious defense to said cause of action, and if said judgment is set aside he will appear at the trial of said cause, and show by proof that the plaintiff has not suffered the damages as alleged in his complaint, and that he is not entitled to the mandatory injunction as made and ordered in this cause." This does not meet the requirement of the law. What the particular defense, which they propose to make upon a second trial, is, he does not disclose. Before a trial upon the merits a general denial is sufficient, and the party is not required to disclose what particular defense he proposes to make under such answer. But upon an application of this kind, it is different; the particular defense must be disclosed. This the law requires in the interest of justice. The court did not err in refusing to set aside said judgment and grant a new trial. [3-5] Neither do we think the court committed any error in permitting the appellee to amend his complaint, as to the amount of damages. The issue was in no way changed. Our statute (section 394, Burns 1914) pro vides: "The relief granted to the plaintiff, if there be no answer, cannot exceed the relief demandthe court may grant him any relief consistent ed in his complaint; but, in any other case, with the case made by the complaint and embraced within the issues." (Our italics.) The complaint having been amended by changing the demand as to damages from $300 to $400, and the court having found the damage to be $400, we must presume that the complaint, in this particular, was amended to conform to the proof. Even had such change or amendment not actually been made, it was authorized by the above statute, an answer herein having been filed, and on appeal we would deem the amendment to have been made, so that it would confrom [1,2] We shall first notice the action of to the assessment of damages as made by Appeal from Circuit Court, Kosciusko County; Lemuel W. Royce, Judge. the court. City of Decatur v. Grand Rapids was not claimed that the other partners were & I. R. Co., 146 Ind. 577, 45 N. E. 793; Noyes insolvent. Carriage Co. v. Robbins, 31 Ind. App. 300, 67 N. E. 959. The appellant had filed his answer to the complaint, and thereafter he could no more prevent the appellee from amending his said complaint, as to the amount of the demand, by staying away from the court and not participating in the trial of his case, than he could have prevented the same action by being present in court and refusing to participate in the trial. Action by Fred Palmer against George W. Fleming. Judgment for plaintiff, and defendant appeals. Affirmed. Forrest E. Hughes and Ethan L. Arnold, both of Elkhart, for appellant. James S. Dodge and Fred E. Cluen, both of Elkhart, and Frazer, Frazer & Headley, of Warsaw, for appellee. [6] It is urged that it was error to allow the said complaint to be amended because no motion in writing asking for leave to amend was made. Appellant seems to rely upon secMCMAHAN, J. Complaint by appellee tion 662, Burns 1914; but that section has against appellant alleging the execution of no application to amendments of the character now under consideration. It applies only to amendments inserting new matter, or to motions to strike out parts of a pleading, deposition, etc. The court did not err in allowing said amendment. [7] It appears from this record that said cause had been set for trial, and that May 13, 1920, had been set and designated as the day for such trial. On that day the appellant did not appear, either in person or by counsel. The court thereupon ordered the appellant to be "called," which was done, and, he failing to appear, the court proceeded to hear the witnesses for appellee and to dispose of the case. In this there was no error. While the appellant was "called" to come into court, he had an answer on file, which requires the appellee to make proof of the material averments of his complaint, and this was in no proper sense a judgment by default, and the court did not err in proceeding with the trial of said cause, and in rendering its judgment therein, because of the absence of the appellant. The decision of the court is sustained by sufficient evidence, and is not contrary to law. The judgment is affirmed. DAUSMAN, C. J., dissents. FLEMING v. PALMER. (No. 11165.) (Appellate Court of Indiana, Division No. 2. Feb. 14, 1922.) Set-off and counterclaim 8(2) - Equitable set-off claimed because of plaintiff's insolvency insufficient where not claiming his partners were insolvent. In an action for balance due under contract, a set-off of a claim against a partnership of which plaintiff was a member, where there was no mutuality between such claim and the matter in action, was not allowable as an equitable set-off for insolvency of the plaintiff, where it a written instrument whereby appellee agreed to sell and appellant to buy certain corporation stock for the sum of $800, and alleging that there is a balance of $450 with interest due appellee. Appellant filed an answer in two paraThe second paragraph was in the nature of graphs. The first was a general denial. a set-off, and alleges that appellant had pro cured a written' option for the purchase of a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (133 N.E.) matter of equity to set off his said claim,, mit said claim to be used as an equitable setand that he have judgment against appellee off. For a general discussion of this quesfor the amount due him from appellee over tion see Watson's Works' Prac. §§ 714, 715, and above the amount due from appellant to and authorities there cited. appellee. The court sustained a demurrer to this answer. The only question presented by this appeal relates to the correctness of this ruling. Appellant in support of his contention says that, whenever it is necessary to do equity or to prevent irremediable injustice, a setoff will be allowed, though the debts are not mutual, and that the insolvency of the party against whom a set-off is claimed is sufficient ground for equitable interference. If it be conceded that this is a correct statement of the law, it does not dispose of the question now under consideration. It will be observed that the claim which appellant seeks to have set off against appellee's claim is the partnership debt of the St. Joseph Finance Company; the members of said partnership being appellee and two others. Appellant does not contend that there is any mutuality between the claim mentioned in appellee's complaint and the one which appellant pleads as a set-off. His only contention is that because of the alleged insolvency of appellee he will not be able to collect the debt of the partnership from appellee. There was no error in sustaining the demurrer to this answer. Judgment affirmed. BOSWELL v. WARNER et al. (No. 11187.) Action between Philip A. Boswell and John Ivory J. Drybread and Wm. Featherngill, PER CURIAM. Judgment affirmed. WILLIAMS et al. v. SOUTHERN INDIANA Appeal from Circuit Court, Lawrence County; James A. Cox, Judge. Action between Sarah J. Williams and others and the Southern Indiana Power Company. Judgment for the latter, and the former appeal. Affirmed. The answer alleges the insolvency of ap- (Appellate Court of Indiana. Feb. 16, 1922.) pellee, and that, in so far as any claim appellant has against appellee, it will be lost unless appellant be allowed to set off the same against the amount which he otherwise admits is due and owing appellee. But there is no allegation in the answer that the other two members of said partnership are insolvent or that there is anything to prevent appellant from enforcing his claim against them. This being true, the facts alleged in answer are not sufficient to authorize or require a court of equity to interfere and per Robert L. Mellen, of Bedford, for appellants. Boruff & Boruff, of Bedford, and Hottel & Patrick, of Indianapolis, for appellee. PER CURIAM. Judgment affirmed. END OF CASES IN VOL. 133 THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABATEMENT AND REVIVAL. II. ANOTHER ACTION PENDING. 15 (Ind.App.) Dismissal of prior action before trial on plea in abatement sufficient to defeat plea.-Brown v. Doak Co., 172. 17 (Ind.App.) Another action pending should be presented by plea in abatement.-Price v. Grose, 30. ACCORD AND SATISFACTION. 8(1) (Ind.) Payment of less than is due after due date not satisfaction.-Princeton Coal Co. v. Dorth, 386, 500. Payment of different consideration than agreed may be satisfaction, though seemingly of less value.-Id. (1) (Ind.) Employé accepting less than was due in advance of pay day held bound by his acceptance.-Princeton Coal Co. v. Dorth, 386, 500. ACKNOWLEDGMENT. IV. PLEADING AND EVIDENCE. ADVERSE POSSESSION. 1. NATURE AND REQUISITES. (F) Hostile Character of Possession. 58 (I.) Under 20-year statute must be hostile to all others.-Kinder v. La Salle County Carbon Coal Co., 772. AGENCY. See Principal and Agent. ANIMALS. 88 (N.Y.) Assessment of damages done by dogs reviewable on certiorari.-People ex rel. Dawley v. Wilson, 45. Full value measure of damages of injury by dogs.-Id. APPEAL AND ERROR. See Certiorari; Courts, 208–219; Criminal Law, 1032-1186; Exceptions, Bill of. For review of rulings in particular actions or proceedings, see also the various specific topics. 62 (2) (1) Evidence held to show deed not acknowledged notwithstanding certificate II. NATURE AND GROUNDS OF thereto -Hernich v. Williams, 220. APPEL LATE JURISDICTION. ~23 (Ind.App.) Jurisdictional questions con 62(4) (III.) Acknowledgment only overcome by clear evidence of fraud.-Herpich v. sidered though not raised.-Unnewehr v. El Williams. 220. ACTION. See Abatement and Revival; Dismissal and II. NATURE AND FORM. rod, 11. III. DECISIONS REVIEWABLE. (D) Finality of Determination. 70 (6) (Mass.) Decree of probate court refusing to frame issues appealable without wait27(3) (Ind.App.) Shipper may sue in tort ing until final decree.-Fuller v. Sylvia, 384. for negligence in shipment.-Vandalia R. Co. v.78(3) (Ind.App.) Judgment for plaintiff on La Rosa. 152. plea in abatement not a "final judgment."Brown v. Doak Co., 172. 35 (Ind.App.) Statutory remedy for enforcing statutory right is exclusive-Board of 79(1) (Ind.App.) To be final judgment must Com'rs of Boone County v. Adler, 602. dispose of all parties.-Unnewehr v. Elrod, 11. (A) Issues and Questions in Lower Court. 6 (N.Y.) Hydroaeroplane while on water is a "vessel" within admiralty jurisdiction.-Rein-753. hardt v. Newport Flying Service Corporation, 371. (B) Objections and Motions, and Rulings Thereon. 10 (N.Y.) Jurisdiction of admiralty excludes Workmen's Compensation Act.-New-185(1) (N.Y.) Jurisdiction of trial court ham v. Chile Exploration Co., 120. 13 (N.Y.) Elements of "maritime service." -Newham v. Chile Exploration Co.. 120. Person supervising work of stevedores held engaged in a martime service.-Id. 133 N.E.-59 must be attacked below.-City of Mt. Vernon v. New York, N. H. & H. R. Co., 900. 193(1) (Ind.) Objections to complaint not presented to trial court waived.-City of La Porte v. Ahlborn, 874. (929) |