present the ruling upon which each respective | session half barrels, some of which held a error so relied on is predicated (Newman v. substantial excess over 15 gallons; but the Horner, 55 Ind. App. 298, 103 N. E. 820; Mc- evidence was of such a character that the Kinley v. Britton, 55 Ind. App. 21, 103 N. E. trial court may have had some doubt as to 349; Bottema v. Tracy, 58 Ind. App. 96, 107 whether appellants had identified the barrels N. E. 741; Mercer v. State, 179 Ind. 426, 428, containing such excess as being the barrels 101 N. E. 484; rule 22, cl..5 [55 N. E. vi]). | furnished by appellees under such contract. Where several errors are relied on in appel- As before stated, the burden was on appellant's brief, the requirement of the rules of the court is not met by a statement therein of general propositions of law and citation of authorities thereunder, with no application thereof to any particular error; but in such a case the brief must indicate the error to which appellant seeks to apply his proposition of law and authorities. Palmer v. Beall, 110 N, E. 218, and cases cited. [4] Under the construction of the rules lants to prove their cause of action as stated, or attempted to be stated, in their complaint, and for the reasons indicated this court is unable to say that the evidence is such as to necessitate a decision different from that reached by the trial court. Finding no reversible error in the record, the judgment below is affirmed. (62 Ind. App. 161) BALTIMORE & O. S. W. R. CO. et al. v. above indicated, appellants present, at most, only that ground of their motion for a new trial which challenges the decision of the trial court as not being sustained by suffi- (Appellate Court of Indiana, Division No. 2. TRACT. June 1, 1916.) cient evidence. To entitle them to a reversal ILLEGAL CON- [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 17-24; Dec. Dig. 4.] 2. MASTER AND SERVANT 78-PERSONAL INJURIES-CONTRACTS FOR RELIEF. An action for benefits against a railroad ed where the establishment of such relief asemployés' relief association cannot be maintainsociation is void under Burns' Ann. St. 1914. § from maintaining any relief association the sonal injury claims upon becoming a member. rules of which require an employé to waive per[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 78.] Appeal from Circuit Court, Knox County; Benjamin M. Willoughby, Judge. [5] It is not easy to determine on what the ory the complaint proceeds, but our examination of the evidence convinces us that what-5308 (Acts 1907, c. 26), prohibiting railroads ever may have been the theory adopted in and by the trial court, the evidence was not such as to compel a decision in favor of appellant under the rule above stated. It would seem, from the averments supra, that appellants relied on a warranty, express or implied, that the half barrels purchased from appellees would conform to some government regulation as to the number of gallons that each half barrel would hoid. Appellants have not cited any government law, and we know of none, regulating the manufacture of half barrels and fixing any gauge, or the standard gauge, of such half barrels. Indeed, it appears from the evidence that the custom among cooperage manufacturers is to make such half barrels a little large, viz., within a range of a small amount over 15% to 17 gallons, so as to allow for shrinkage on account of repitching after they have been used. Action by William B. Duncan against the Baltimore & Ohio Southwestern Railroad Company and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed and remanded. W. R. Gardiner, C. K. Tharp, and C. G. Gardiner, all of Washington, Ind., W. C. Johnson, of Vincennes, and Edward Barton, of Cincinnati, Ohio, for appellants. Leroy M. Wade, of Vincennes, and A. J. Padgett, of Washington, Ind., for appellee. CALDWELL, C. J. Appellee, as a memAssuming, however, without deciding, that ber of the relief department maintained by appellees' contract with appellants required appellants, brought this action to recover. them to furnish appellants with half barrels total disability sick benefits for 312 days at holding 15 gallons, and no more, and that $1.59 per day. A trial by the court resulted such contract was proved as alleged in the in a judgment for appellee in the sum of complaint, or that, as to such element of $477. To determine this appeal it will be appellants' cause of action, the proof neces- necessary for us to consider only the assary to recovery was made without objec-signments in the motion for a new trial that tion and should be considered by this court, the evidence is not conclusive that the half barrels furnished by appellees did not meet this requirement. The evidence was probably conclusive that appellants had in their pos the decision is not sustained by sufficient evidence, and that it is contrary to law. The record discloses the following facts: September 30, 1909, appellee was an employé of the Baltimore & Ohio Southwestern Rail For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes road Company as a yard conductor at Vin- the opinions in the cases above cited, and are cennes, on which day he became a member therefore not set out here. Under such deof such relief department. For a number cisions the contract upon which appellee of years prior to that date the Baltimore & predicates his cause is void, and he cannot Ohio Railroad Company had maintained such therefore maintain his action. It results relief department; its employés being mem- that the decision is not sustained by suffibers thereof. Under the plan of organiza- cient evidence, and that it is contrary to tion employés became members of the re- law. See, also, Boes v. Grand Rapids & lief department by application, medical ex- Ind. Co., 108 N. E. 174; Wells v. Vandalia amination, and contract. An employé hav- R. Co., 56 Ind. App. 211, 103 N. E. 360. ing been accepted as a member, and having Judgment reversed, with instructions to signed the required contract, paid to the sustain the motion for a new trial. department a certain per cent. of his wages each month; such payments being made, in fact, by being retained from his wages by his employer, and turned into the relief department, in consideration of which such member, in case of his sickness or injury, or his beneficiary in case of his death was entitled to receive from the department certain Under rules of the court requiring an apbenefits. The two companies entered into pellant's brief to contain a concise statement a contract July 1, 1909, by virtue of which of so much of the record as fully presents evsuch department was extended to the em-ery exception and error relied upon plaintiff's failure to set out a motion for change of judge ployés of the Baltimore & Ohio Southwestern and motion for new trial, waived his assignRailroad Company. As required by the rules ments of error to the overruling of those moof his employer, appellee submitted to a med- tions. ical examination from time to time to deter (62 Ind. App. 164) GRAVES v. KELLY. (No. 9063.) 1. APPEAL AND ERROR 757(1)-BRIEFS [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757(1).] 2. JUDGMENT 151-VACATING-PROCEED INGS-FORMALITY-STATUTE. on complaint or motion filed within two years, no formal pleadings are required beyond the complaint or motion of the party seeking relief. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 296-298, 727, 730; Dec. Dig. 151.] mine his fitness to continue in the service. Certain examinations made in the latter part of 1911 and perhaps early in 1912 disclosed Under Burns' Ann. St. 1914, § 405, providthat appellee was a victim of defective coloring that the court shall relieve a party from a perception, or color blindness, by reason of judgment taken against him, through his mistake, inadvertence, surprise, or excusable negwhich his employer released him from serv-lect, and supply an omission in any proceedings ice February 15, 1912. Between that date and November 29, 1913, appellee was out of employment a portion of the time. On the latter date he entered the service of the Vandalia Railroad Company as brakeman and switchman, and was still in such service at the time of the trial. Appellee, as a member of the relief department, contributed $3 per month thereto, and under the terms of his contract by virtue of which he became a member of such department he was entitled to receive $1.59 per day while totally disabled by sickness or other cause than accidental injury received in the line of duty. On such a hearing no counter affidavits or This action was brought on the theory that contradictory evidence may be received on the color blindness is such total disability. We question whether or not the party seeking relief from the judgment had a meritorious cause of find it unnecessary to determine the sound-action, but on all other questions any competent ness of such theory. [1, 2] In order that appellee may maintain this action, it must appear that the contract between him and appellants and on which he bases his action is valid and binding. The relief department maintained by appellants has recently been considered by the Supreme Court, and also by this court, and held to be within the prohibition of the act of 1907 (Acts 1907, p. 46; section 5308, Burns 1914). See B. & O. S. W. Railroad Co. v. Hagan (Sup.) 109 N. E. 194; B. & O. Railroad Co. v. Miller (Sup.) 107 N. E. 545; Acton v. B. & O. S. W. R. Co., 108 N. E. 535. The features of such department bringing it within the condemnation of such act fully appear in 3. JUDGMENT 163-VACATION-PROCEEDINGS TRIAL. Matters presented by such a complaint or motion should be heard by the court in a summary manner. Cent. Dig. 8 323; Dec. Dig. 163.] 162(1) — VACATION - EVI. 4. JUDGMENT evidence may be heard. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 319; Dec. Dig. 162(1).] 5. EVIDENCE 1-JUDICIAL NOTICE-UNCON.. TROVERTED PLEADINGS. Although the allegations of a complaint are uncontroverted, the court is not precluded from finding the facts to be otherwise by resorting to its judicial knowledge. Cent. Dig. § 1; Dec. Dig. —1.] RECORD IN SAME CASE. The court will take judicial notice of its records made in the same case and the facts which they establish. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 63; Dec. Dig. 43(2); Appeal and Error, Cent. Dig. §§ 2959, 2960.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Noble County; Francis E. Bowser, Judge pro tem. Action by James Graves, administrator, against Emma F. Kelly, administratrix de bonis non of the estate of John D. Kelly, deceased. From a judgment for defendant and from an order overruling a motion for new trial, plaintiff appeals. Affirmed. T. A. Redmond and Rex S. Emerick, both of Kendallville, for appellant. Grant & Foote, of Albion, and Finley & Finley, of Kendallville, for appellee. Appellee insists that said section, being part of the Civil Code, has no application to the instant case, because the original controversy was one governed wholly by a special statute relating to the settlement of decedents' estates. We do not deem it neces sary to and do not decide this question. [2] It is well settled by the decisions of our Supreme Court that proceedings under said clause require no formal pleadings beyond the complaint or motion of the party seeking relief. Nord v. Marty, 56 Ind. 531; Lake v. Jones, 49 Ind. 297; Buck v. Havens, 40 Ind 221. There was a similar attempt to make issues in the case of Nord v. Marty, supra, and on that subject the court said: MCNUTT, J. On March 13, 1914, appellant, as plaintiff, filed his complaint in the court below against appellee, as administratrix de bonis non of the estate of John D. Kelly, deceased, as defendant, to be relieved, under the provisions of the last clause of section 405, Burns 1914, from a judgment al-a cause of action. This was tantamount, in our leged to have been rendered by said court against him on March 14, 1913. The complaint was in two paragraphs duly verified by appellant. Summons was ordered by the court and duly served upon appellee, who appeared to said action. Before any issue was tendered or any action taken by the court appellant filed his verified motion for a change of judge, which was overruled, and appellant excepted. "In the case at bar the appellee demurred to appellant's verified complaint, upon the ground that it did not state fact sufficient to constitute opinion, to a submission of the cause to the court below for a hearing on the facts set out in the verified complaint. By sustaining the appellec's, demurrer to said verified complaint the court simply held that the showing therein made was not sufficient to entitle the appellant to be relieved from the judgment taken against him. The error assigned by the appellant, we think, fairly presents for our consideration the correctness of the decision of the court below." [3, 4] It is also well settled that matters presented by such a complaint or motion should be heard by the court in a summary manner. Ratliff v. Baldwin, 29 Ind. 16, 92 Am. Dec. 330. On such a hearing no counter affidavits or contradictory evidence should be received on the question whether or not the party seeking relief from the judgment has a meritorious cause of action or defense, as the Appellee demurred separately to each paragraph of the complaint for want of sufficient facts to entitle appellant to the relief prayed for, and the demurrers were sustained by the court, and appellant excepted. Appellant refused to plead further and the court rendered judgment against him, that he take nothing by his suit, and that appel-case may be. On all other questions involved lee recover her costs. Appellant filed his motion for a new trial which was overruled. Appellant assigns as error in this court: (1) The overruling of his motion for a change of judge; (2) the sustaining of appellee's demurrer to each paragraph of complaint; (3) the overruling of his motion for a new trial. [1] Appellant has failed in one particular to comply with the rules of this court in the preparation of his brief. Under his "concise statement of so much of the record as fully presents every exception and error relied upon," appellant has failed to set out the motion for a change of judge, the demurrer and memorandum, and motion for a new trial, or the substance of either. By this failure appellant has waived the first and last assignments of error. Pry v. Ramage, 176 Ind. 446, 96 N. E. 385, and cases cited. As will be noted in this opinion, the failure to set out the demurrer and memorandum in the brief becomes immaterial. The latter clause of section 405, supra, relied on by appellant, reads as follows: "The court * * ** shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings, on complaint or motion filed within two years." any competent evidence offered by either party should be heard, as in other cases. Buck v. Havens, supra. It appears that no evidence was offered by either party, by way of affidavits or otherwise, and the question arises whether there was any evidence properly before the court, other than the verified complaint. So much of appellant's complaint as will disclose the nature of the original controversy alleges, in ministrator of said decedent's estate in 1906, substance, that appellant was appointed adqualified and acted as such until 1912, at who was the widow of decedent, removed which time he was, upon petition of appellee, from his trust and ordered by the court to file his final report as such administrator; that appellant filed such report in March, 1912, to which appellee filed exceptions; that such proceedings were had upon said final report and exceptions that on March 14, 1913, the court rendered judgment against appellant for $1,344.95; that on said 14th day of March, 1913, appellant did not appear and make out his cause of action and submit evidence in support of his final report on account of his excusable neglect, inadvertence, and mistake in this: That at said time he was a person of unsound mind, caused by excessive drinking, and was incapable of mak ing out his cause of action and incapable of [5] While the allegations of appellant's understanding and transacting the ordinary complaint are uncontroverted, this did not affairs of life, and that he continued to be preclude the court, in our opinion, from findof unsound mind until about the 1st day of ing the facts to be otherwise by resorting to January, 1914, and as soon thereafter as its judicial knowledge. 16 Cyc. 852. appellant was physically able he employed [6] We are of the opinion that the record counsel to commence this cause of action. In made by the court in the same case was beaddition to the above facts, the second para-fore the court, and that it thereby ascertaingraph of complaint alleges that appellant ap-ed that the facts set forth in appellant's compeared only as a witness at the trial of said plaint with reference to his appearance at exceptions in obedience to a subpœna served the trial of the exceptions and the judgment upon him, but that he did not make out, or attempt to make out, his cause of action, or introduce evidence to support his final report. Upon appellee's petition a writ of certiorari was issued by this court, and in obedience thereto the clerk below duly certified to this court the final report of appellant, the exceptions filed by appellee thereto, also the record of the trial, and the findings and judgment of the court. The record shows the following proceedings were had on March 13, 1913: * * * "No. 1317-James Graves Administrator of the Estate of John D. Kelly, Deceased. Emma F. Kelly, as Administratrix De Bonis Non_of the Estate of John D. Kelly, Deceased, Exceptor. Come again the parties hereto as aforesaid, and by agreement of said parties this cause is now submitted to the court for trial upon the exceptions of said Emma F. Kelly, as administratrix de bonis non of the estate of John D. Kelly, deceased, to the final report of said James Graves, as administrator of the estate of John D. Kelly, deceased, a jury by agreement being waived. And thereupon the trial of this cause commences and proceeds, but it is not concluded. And the court having heard part of the evidence, and there not being time to conclude or for further hearing and trial of this cause to-day, the time of adjournment having arrived, the further hearing thereof and trial of this cause is now adjourned until tomorrow morning at 9 o'clock." And on March 14, 1913: from which he sought to be relieved were not true. The record shows that appellant was in court during the trial, and also shows that no such judgment as alleged was rendered against him; in fact, that no judgment was rendered against him except for costs. In such a case it is well settled that the court will take notice of its records made in the same case and the facts which they establish. Cluggish v. Koons, 15 Ind. App. 599, 43 N. E. 158; Denny v. State, 144 Ind. 503, 42 N. E. 929, 31 L. R. A. 726; Hogate's Pl. & Pr. § 353; 16 Cyc. 915-917, and authorities cited; Bank of Montreal v. Taylor, 86 Ill. App. 388. While we hold that the right result was reached by the lower court in this case, and that the judgment therein must be affirmed, we deem it proper and we also hold that the action taken by the trial court and the record made in the original proceedings did not in any manner determine or adjudicate appellant's personal liability, or the liability on his bond, if any. (64 Ind. App. 74) MEYER v. PLOTNER et al. (No. 9288.) (Appellate Court of Indiana, Division No. 2. May 31, 1916.) 1. DRAINS 62-INCLUSION OF LAND-WA TERSHED-STATUTE. ** * Come again the parties hereto as aforesaid, and thereupon the trial of this cause is resumed, proceeds, and is concluded, and the Under Burns' Ann. St. 1914, § 6141, proarguments of counsel are heard. And the court, viding that the petition for drainage shall dehaving heard all the evidence, and being fully ad- scribe tracts of 40 acres according to the fracvised in the premises, finds that the final report tions of government surveys, or less tracts, if of said James Graves, as administrator of the any, section 6142, providing that the drainestate of said John D. Kelly, deceased, should be, age commissioners in the examination of realty and the same hereby is, rejected and not ap- shall ascertain whether the proposed drainage proved, that there is due from said James will be practicable and a public utility, and then Graves, as administrator of the estate of said determine the method of drainage, estimating John D. Kelly, deceased, to the estate of said the cost, benefits, etc., to each separate tract John D. Kelly, deceased, over and above all of land to be affected thereby, section 6143, credits to which he is entitled and over and providing that a landowner may remonstrate if above the value of all services rendered by his lands are assessed too high as compared said James Graves to the estate of said John with other lands, or if they will not be beneD. Kelly, deceased, as administrator thereof, fited, etc., section 6144, providing that of asthe sum of thirteen hundred forty-four dol- sessments of benefits the party executing the lars and ninety-five cents ($1,344.95), and that work shall charge the amount necessary, not to said James Graves and the sureties on his exceed the whole benefit, defendant's 13-acre bonds as administrator of the estate of said tract of land, included with her 40-acre tract in John D. Kelly, deceased, are liable to said es- the land which petitioners alleged would be tate for the full payment of said sum of thirteen benefited by the proposed ditch, and which was hundred forty-four dollars and ninety-five cents. included in the commissioner's report as land And it is considered and adjudged by the court in need of additional drainage and assessed that said exceptor do have and recover of and for benefits, would not be deprived of its right from said James Graves all costs occasioned by to the use of such ditch merely because it was the filing of the exceptions to his final report as on the opposite side of a watershed and natadministrator of the estate of said John D. Kel-urally drained in an opposite direction. ly deceased, taxed at [Ed. Note. For other cases, see Drains, Cent. cents." Dig. § 66; Dec. Dig. 62.] dollars and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Transfer denied. 2. DRAINS 15-TERRITORY-COMMISSION-in Cass county would be benefited by the ER'S FINDING In such case the topography of the lands or the natural boundary lines as to the drain age of lands gave way to the lines created by the drainage commissioners, whose judgment thereon was not reviewable by the court. [Ed. Note. For other cases, see Drains, Cent. Dig. 88 7-10; Dec. Dig. 15.] Appeal from Circuit Court, Cass County; John S. Lairy, Judge. Action for injunction by Henry Meyer against Joseph Plotner and others. Judgment for, defendants, and plaintiff appeals. Affirmed. Long, Yarlott & Souder, of Logansport, for appellant. F. M. Trissal, of Chicago, Ill., and George W. Walters and Funk & Hillis, all of Logansport, for appellees. drainage proposed, and the total cost of the MORAN, J. Appellant sought to enjoin appellees from constructing a contemplated tile ditch upon the land of appellee Rosa Plotner, which would drain a portion of appellee Rosa Plotner naturally drains to the same that lay on the opposite side of the ridge or watershed from that naturally drained by a public drain into which the tile drain would find its outlet. Briefly, the theory of appellant's complaint is that a portion of appellee Rosa Plotner's land intended to be drained by a proposed tile drain did not lie in the drainage area of the Meyer public drain, which had there tofore been constructed, and that by so draining the portion of her land into the Meyer public drain that would not naturally drain therein the public drain would be overtaxed, causing it to overflow, and the lands of appellant, which lay along the lower course of such public drain, would be greatly injured, to appellant's irreparable damage. The relief sought by appellant was denied, and judgment rendered against him, from which he seeks relief by review in this court. Numerous errors are assigned, which, however, can with convenience be disposed of under the errors assigned on the court's conclusions of law rendered upon the facts specially found. the north and northeast, while the south part naturally drains to the south. An elevation or watershed extends across her lands in an easterly and westerly direction, which is fairly well defined throughout its course. That many years ago there was a public drain constructed north of the watershed, known as the Rawlhausen drain, into which the real estate of appellee Rosa Plotner lying north of the watershed could be drained, and an assessment laid against the same for the construction thereof. In 1892 appellee constructed a private drain by which a portion of her land to the north of the watershed was drained into the Rawlhausen ditch. That at the time the drainage commissioners examined the lands sought to be assessed for the construction of the Meyer public drain the lands now sought to be drained into the same by appellee Rosa Plotner needed additional drainage, and by cutting through the watershed and extending the private drain sought to be constructed where here enjoined the lands can be drained, as the fall is sufficient to do so. That the Meyer drain has been sufficient except in times of extraordinary rainfall to carry off all the water drained into it, and, if the tile drain planned to be constructed by appellee Rosa Plotner is turned into the Meyer public drain, it will cause it to overflow and damage appellant's land. The special findings disclose, among other things, that the Meyer public drain was petitioned for by three petitioners, who alleged that their lands would be benefited by drainage, and could be best accomplished by a system of drainage designated as a main ditch and three tributaries, and to accomplish the drainage petitioned for, lands oth- The conclusions of law rendered on the er than the petitioners' would be affected, facts found by the court, of which the foreamong which 53 acres of land owned by ap-going is but a brief summary, authorized pellee Rosa Plotner. That numerous high- appellee Rosa Plotner to drain that portion ways would likewise be benefited, and that the work would be a work of public utility. The costs, damages, and expenses would be less than the benefits which would result [1, 2] As to whether appellee Rosa Plotner to landowners likely to be benefited. On has such a right must be ascertained from May 29, 1911, the report of the drainage the construction to be given to so much of commissioners was filed in the Cass circuit the drainage law as is here involved, viz.: court, disclosing that a large body of land Does the fact that an assessment was laid of her land lying north of the watershed into the Meyer drain, which, as we have seen, has its source out of the watershed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |