ADEQUATE REMEDY AT LAW. AIDER BY VERDICT. Adequacy of other remedy as ground for denial In civil actions, see "Pleading," § 7. of injunction, see "Injunction," 1. Effect on jurisdiction of equity, see "Equity," § 1. ALIBI. For breach of contract as to use of electricity, As defense in criminal prosecution, see "Crimsee "Electricity." ADJOINING LANDOWNERS. inal Law," § 10. ALLOWANCE. See "Boundaries." Easement in use of cellar under building parti- To surviving wife, husband, or children of tioned, see "Easements," § 1. ADJUDICATION. Conclusiveness of award, see "Arbitration and Award," § 2. Of courts in general, see "Courts," § 1. Operation and effect of former adjudication, see "Judgment," §§ 6, 7. ADMINISTRATION. Of charity, see "Charities," § 2. Of estate of decedent, see "Executors and Administrators." Of estate of ward, see "Guardian and Ward," § 2. Of trust property, see "Trusts," § 3. ADMIRALTY. See "Seamen"; "Shipping." ADMISSIONS. As evidence, see "Evidence," § 5. ADVANCEMENTS. See "Descent and Distribution," § 1. ADVERSE CLAIM. To real property, see "Quieting Title." ADVERSE POSSESSION. See "Easements," § 1; "Limitation of Actions." 1. Nature and requisites. decedent, see "Executors and Administrators," § 2. ALTERATION. Of highways, see "Highways," § 1. ALTERATION OF INSTRUMENTS. See "Reformation of Instruments." AMENDMENT. Of by-law of corporation, see "Corporations," § 2. Of ordinance, see "Municipal Corporations," § 1. Of pleading as affecting limitations, see "Limitation of Actions," § 2. Of pleading as ground for continuance, see "Continuance." Of preliminary affidavit as affecting limitations, see "Criminal Law," § 2. Of statute, see "Statutes," § 3. On appeal or writ of error, see "Appeal and Error," 18. Of particular legal proceedings. See "Judgment," § 3; "Parties," § § 2. Court records, see "Courts," § 1. Pleading in equity, see "Equity," § 2. Proceedings for change of venue, see "Venue," § 2. AMOUNT IN CONTROVERSY. Jurisdictional amount, see "Courts," § 3; "Removal of Causes," § 2. AMUSEMENTS. *Certain facts held to show adverse possession. See "Theaters and Shows." -Cline v. Hays (Ind. App.) 257. Carriage of live stock, see "Carriers," § 3. Injuries caused by operation of street cars, see Street Railroads," § 2. Judicial notice as to quarantine, see "Evidence," § 1. *Owners of horse held not negligent in failing to inform person in charge of it of occasion on which the horse had kicked another person.Cooper v. Cashman (Mass.) 461. Evidence held insufficient to show that a horse was vicious so as to render owners negligent in failing to give information of such viciousness.-Cooper v. Cashman (Mass.) 461. Declaration in action for injuries from being kicked by a horse held not founded on negligence in failing to give plaintiff warning.-Cooper v. Cashman (Mass.) 461. ANNULMENT. Of will, see "Wills," § 4. * Point annotated. See syllabus. ANSWER. In pleading, see "Pleading," § 2. ANTENUPTIAL CONTRACTS. See "Husband and Wife," § 2. APPEAL AND ERROR. See "Certiorari"; "Exceptions, Bill of"; "New Trial.' Abuse of discretion in examination of witnesses as grounds for reversal, see "Witnesses," § 2. Appellate jurisdiction of particular courts, see "Courts," § 3. Costs, see "Costs," § 2. Estoppel to make contentions on appeal, see "Estoppel," § 1. Filing appeal bond by foreign corporation as doing business, see "Corporations," § 6. Harmless error in examination of witness, see "Witnesses," § 2. Remedies by appeal and mandamus distinguished, see "Mandamus," § 2. Remedy by appeal as ground for denial of certiorari, see "Certiorari," § 1. Remedy by appeal as ground for denial of injunction, see "Injunction," § 1. Remedy by appeal as ground for denial of prohibition, see "Prohibition," § 1. Review in particular civil actions. For injuries caused by discharge of surface water from ditch, see "Municipal Corporations," § 12. Review in special proceedings. Condemnation proceedings, see "Eminent Domain," § 3. Election contest, see "Elections," § 2. For establishment of levee, see "Levees." Probate proceedings, see "Wills," § 4. Proceedings of county board, see "Counties," § 1. Special assessment proceedings, see "Municipal Corporations," § 9. To confirm or revise municipal improvement assessment, see "Municipal Corporations," § 8. To register land title, see "Records." Review of criminal prosecutions. See "Criminal Law," § 15; “Homicide," § 4. Bastardy proceedings, see "Bastards," § 1. Summary trial, see "Criminal Law," § 3. Review of proceedings of justices of the peace. See "Justices of the Peace," § 2. 1. Nature and form of remedy. *Where on appeal a judgment sustaining a demurrer to a complaint was affirmed because no exception appeared to have been taken to the ruling, a second appeal would not lie, though the record by a nunc pro tune entry showed an exception.-Adams v. Board of Com'rs of Whitley County (Ind. Sup.) 113. § 2. Decisions reviewable. Certain judgment of Appellate Court held final in such sense as to authorize review by Supreme Court.-Kroell v. Kroell (Ill.) 63. The action of the court in postponing the consideration of the equalization of legacies until after a resale of the trust property devised by the will, being interlocutory merely, is not subject to appellate review.-Fredrick v. Fredrick (Ill.) 856. A judgment is not final, so as to be appealable, unless it disposes of the cause, both as to the subject-matter and parties, so far as the court before which it is pending has power to dispose of it.-Starkey v. Starkey (Ind. Sup.) 876. A judgment construed, and held final and appealable as to all the defendants.-Starkey v. Starkey (Ind. Sup.) 876. *In Indiana an appeal to the Supreme and Appellate Court can only be taken from a final judgment.-Bozarth v. McIntyre (Ind. App.) 317. Under Code Civ. Proc. §§ 1357, 2260, 2261. 3405, an appeal lies to the Appellate Division from an order of the county court, reversing a final order in a summary proceeding instituted before a justice of a city court for recovery of demised premises. In re Soop (N. Y.) 14; Cornell v. Burhans, Id. § 3. Right of review. In a proceeding for a writ of mandate against members of a board of canvassers of election, defendants held not entitled to complain of the aetion of the court in dismissing the proceeding after full compliance by them with the order of the court.-McCormick v. State (Ind. Sup.) 293, 294. *Under Code, § 644, certain taxpayers, in an action against a county, represented by an attorney under order of court, held not parties to the action, and entitled to appeal from the judgment therein.-Board of Com'rs of Newton County v. Wild (Ind. App.) 256. *A receiver held not authorized to appeal from orders made in the pending proceeding not relating to his official conduct, accounts, or credits, without authority from the court.-Polk v. Johnson (Ind. App.) 634. An owner of property in the hands of a receiver held entitled to except to the decree allowing the receiver's accounts and directing the receiver's successor to pay certain portions of the fund to him.-Polk v. Johnson (Ind. App.) 634. 4. Presentation and reservation in lower court of grounds of review. Whether there was any evidence tending to support the defense held not preserved for review by plaintiff's motion for new trial.-Warth v. L. Loewenstein & Sons (Ill.) 379. Party cannot predicate writ of error on part of the judgment in his favor. Sanche v. Mahler (Ill.) 485. In an action against a street railway for injuries to passenger, certain charge held not to raise question of variance between declaration and proof, and such question could not be considered on appeal.-Alton Ry.. Gas & Electric Co. v. Webb (Ill.) 687. On appeal to Supreme Court from Appellate Court, questions as to forfeiture of franchise of corporation held not to be considered. Cratty v. Peoria Law Library Ass'n (Ill.) 707. The action of the court in deciding that, if the defeated party would agree to pay a specified sum and would not appeal, a judgment for such sum would be rendered, held not review-in * Point annotated. An offer to prove held to present no question as to the correctness of the ruling excluding the testimony, where there was no question asked to elicit the testimony excluded.-Indianapolis & M. Rapid Transit Co. v. Hall (Ind. Sup.) 242 Objections to the sufficiency of the complaint condemnation proceedings, not pointed out See syllabus. or urged on appeal, will be considered as waived. [ -Morrison v. Indianapolis & W. Ry. Co. (Ind. Sup.) 961. 6. Requisites and proceedings for transfer of cause. The expenses incurred by an appellee in deAn objection to the improper joinder of parties fending the appeal on the faith of the appeal in a motion for a new trial must be first raised bond are a sufficient consideration for the bond. in the trial court.-Beery v. Driver (Ind. Sup.)McCarthy v. Alphons Custodis Chimney Const. Co. (Ill.) 850. 967. Denial of a petition to remove a cause to the federal court is not reviewable, unless assigned as reason for a new trial, where there has been a trial in the state court.-Southern Ry. Co. v. Sittasen (Ind. Sup.) 973. An assignment of error on the ruling of the court on a motion to strike out and suppress certain questions and answers in a deposition presents no question, as the ruling is presented only by a motion for a new trial.-Capital Nat. Bank v. Wilkerson (Ind. App.) 258. Ann. St. 1901, § 652, on appellee's attorney of *Service of notice of appeal, under Burns' record in the trial court, held good, though he had been discharged after judgment; appellant not having notice of it.-Rose v. Owen (Ind. App.) 412. under Burns' Ann. St. 1901, § 663, held unnec- Court of Appeals was denied by the chief A complaint held good as against an attack for the first time on appeal.-Brotherhood of Painters, Decorators and Paperhangers of Amer-judge, a subsequent application cannot be made, ica v. Moore (Ind. App.) 262. under Code Civ. Proc. § 191, to another judge. -Carlisle v. Barnes (N. Y.) 27. An exception to the overruling of a demurrer to two paragraphs in a pleading is joint, and, unless the court erred as to both, there is no available error.-Hoerger v. Citizens' St. R. Co. (Ind. App.) 328. The court on appeal will only review rulings in giving and refusing instructions to which objections have been made and supported by argument. Baltimore & O. S. W. R. Co. v. Kleespies (Ind. App.) 1015. Exceptions to instructions must be taken severally, and where instructions are excepted to as a whole, the exception will not be available unless all the instructions are erroneous.-Baltimore & O. S. W. R. Co. v. Kleespies (Ind. App.) 1015. The fact that plaintiff failed to formally state what answer a witness was expected to make to an excluded question held not to preclude him from obtaining a review of the ruling excluding the question.-Robinson v. Old Colony St. Ry. Co. (Mass.) 190; Thompson v. Same, Id. A question asked an expert in an action for injuries received by an employé held not necessarily erroneous.-Arnold v. Harrington Cutlery Co. (Mass.) 194. A general exception will not raise on appeal the question of the correctness of a finding of the trial court, that a notice of lien was filed and complies in all respects with the law. Gilmour v. Colcord (N. Y.) 273. An exception by plaintiff to findings of fact and conclusions of law in favor of defendant held insufficient to entitle him to insist that there had not been a trial and determination of the issues; plaintiff's proper remedy being by motion to correct the judgment roll.-Keyes v. Smith (N. Y.) 473. § 5. Parties. A substituted receiver held not a necessary party to an appeal by the owner of the fund from an order directing the payment of certain amounts from the fund to the receiver who resigned.-Polk v. Johnson (Ind. App.) 634. *Under Burns' Ann. St. 1901, §§ 647, 647a, held that all parties affected by judgment must be brought before the Appellate Court.-Helberg v. Dovenmuehle (Ind. App.) 1020. Under Acts 1903, p. 340, c. 193, § 7. and Burns' Ann. St. Supp. 1905, § 641g, relating to præcipe to clerk, record held not to show that appellant was the only defendant affected by the judgment.-Helberg v. Dovenmuehle (Ind. App.) 1020. § 7. Record and proceedings not in record. *Where the record contains no bill of exceptions, only errors apparent on the face of the record can be reviewed.-Kalish v. City of Chicago (IH.) 40. On an appeal in an action by a city to confirm a street assessment held that appellants had not sufficiently abstracted the record as concerned a certain contention.-Heiple v. City of Washington (Ill.) 854. Where an opinion and judgment of the Supreme Court is pleaded as an adjudication, such court is at liberty to look to the record for the purpose of determining what was adjudi. cated.-State v. Board of Com'rs of Clinton County (Ind. Sup.) 986. Exhibits made a part of the record by reference are in effect incorporated in the place of the reference, and will be regarded as authenticated by the judge's signature.-Cincinnati, L. & A. Electric St. R. Co. v. Stahle (Ind. App.) 551. *Where on appeal an order book entry showed that a motion for a venire de novo was joint, while the bill of exceptions showed that it was ered as authentic.-Douglas v. Indianapolis & several, the bill of exceptions would be considN. W. Traction Co. (Ind. App.) 892. 8. Matters to be shown by record. An objection to the jurisdiction in a particular case must be brought into the record in order to be reviewed on appeal.-Stoy v. Indiana Hydraulic Power Co. (Ind. Sup.) 1057. judgment, the appeal will not be entertained.— *Unless the record on appeal discloses a final Bozarth v. McIntyre (Ind. App.) 317. *Indorsement at conclusion of instruction, "Given and excepted to," signed by the judge, held insufficient to present any question for review.-Fletcher v. Kelly (Ind. App.) 813. The record on appeal in proceedings for the establishment of a road held to present no question as to the court's action in refusing to allow certain names to be withdrawn from the petition.-Baker v. Gowland (Ind. App.) 1027. 89. Scope and contents of record. record, notwithstanding amendments made durOriginal complaint held to remain in the ing the trial.-Stewart v. Knight & Jillson Co. (Ind. Sup.) 743. *Instructions given and refused, to which exceptions were taken, embraced in a special *Point annotated. See syllabus. bill of exceptions, held properly in the appeal record.-Beery v. Driver (Ind. Sup.) 967. Under Acts 1903, p. 338, c. 193. the filing of instructions 12 days after trial held not sufficient to make them a part of the record. Baker v. Gowland (Ind. App.) 1027. Under Acts 1903, p. 338, c. 193, held the evidence was in the record on appeal; the original bill of exceptions containing it having Under Acts 1903, p. 338, c. 193, the record been certified by the clerk.-Brotherhood of on appeal held not to authorize the court to Painters, Decorators and Paperhangers of review alleged error in the instructions.—Baker America v. Moore (Ind. App.) 262. v. Gowland (Ind. App.) 1027. Under Acts 1903, p. 338, c. 193, § 3, longhand report of evidence, filed by master commissioner, held a part of the record without bill of exceptions. Harrah v. State (Ind. App.) 443. Under Acts 1903, p. 338, c. 193, certain written instructions given and refused held part of the record.-Cincinnati, L. & A. Electric St. R. Co. v. Stahle (Ind. App.) 551. *A motion not incorporated in the record by bill of exceptions or order of court cannot be considered as part of the record.-Lindley v. Kemp (Ind. App.) 798. A memorandum, filed by a justice who heard the evidence, which is a report of his findings of fact, held a report within Rev. Laws, c. 159, 8 23. Cohen v. Nagle (Mass.) 276. § 10. Making, form, and requisites of transcript or return. Præcipe held sufficient to authorize clerk to incorporate in transcript the bill of exceptions containing the evidence.-New American Oil & Mining Co. v. Troyer (Ind. Sup.) 253; Same v. Wolff (Ind. Sup.) 255. A clerk's certificate to a transcript held to authenticate one or both of the paragraphs of the complaint, enabling the court on appeal to determine the sufficiency of the evidence to uphold the verdict.-Chicago, I. & L. Ry. Co. v. Reyman (Ind. Sup.) 970. *Appellate Court Rule 3 (55 N. E. iv), requiring the transcript to be indexed, held not complied with, requiring a dismissal of the appeal.-McCormick Harvesting Mach. Co. v. Hinchman (Ind. App.) 327. Præcipe for transcript and certificate of clerk held to sufficiently show the incorporation of interrogatories and answers of the jury in the transcript (Burns' Ann. St. 1901, § 555).-Lindley v. Kemp (Ind. App.) 798. $11. Questions presented for re view. Refusal of the trial court to permit certain questions to be asked jurors held not ground for reversal where the abstract did not contain all the questions asked.-Heiple v. City of Washington (Ill.) 854. Alleged error predicated on instructions, not set out in defendant's brief, as required by Sup. Ct. Rule 22 (55 N. E. vi), will be considered waived.-Springer v. Bricker (Ind. Sup.) 114. The absence from the record of a plat which is not essential to the understanding of the situation will not prevent the consideration of questions dependent on the presence of the evidence in the record.-Cincinnati, L. & A. Electric St. R. Co. v. Stahle (Ind. App.) 551. *The Court of Appeals must consider the complaint as it appears in the record, and without regard to motions to strike, and rulings thereon which are not disclosed by the record. Lindley v. Kemp (Ind. App.) 798. The denial of a venire de novo will not be reviewed on appeal unless the record shows the ground on which it was based, and that it was pointed out to the trial court.-Douglas v. Indianapolis & N. W. Traction Co. (Ind. App.) 892. Where the appeal record does not contain the evidence taken by a master, exceptions dealing with matters of fact cannot be reviewed.Hoshor-Platt Co. v. Miller (Mass.) 650. § 12. Assignment of errors. *Where the action of the court in overruling a demurrer is not assigned as error, it cannot be reviewed.-Illinois, I. & M. Ry. Co. v. Ring (Ill.) 83. Where, after an appeal had been taken from a decree in a will contest, but not perfected, a compromise was effected with certain of the heirs and legatees, but no release of errors was pleaded, the record in such compromise proceeding could not be considered on a subsequent writ of error to review the contest decree.Compher v. Browning (Ill.) 678. *An assignment of errors must be attached to the record.-McCormick v. Chicago & S. L. R. Co. (Ill.) 833. *Coplaintiffs cannot properly join in assigning errors to the overruling of demurrers to paragraphs of the answer which affect them severally. Starkey v. Starkey (Ind. Sup.) 876. *Where errors jointly assigned were not available to one of the parties joining in such assignment, they were unavailable to the other.-Starkey v. Starkey (Ind. Sup.) 876. On appeal in eminent domain proceedings held that the assignments of error were insufficient, review of a statement of appropriation.-Stoy under Burns' Ann. St. 1901, § 667, to warrant v. Indiana Hydraulic Power Co. (Ind. Sup.) 1057. Where assignments of error are deficient in substance, the defect is not waived by joinder in error.-Spitzer v. Wright (Ind. App.) 261. *An assignment of errors that the court committed error in sustaining a demurrer of one of the defendants, and in rendering judgment against appellants upon their refusal to plead further, was fatally defective.-Spitzer V. Wright (Ind. App.) 261. *A contention that a demurrer to a paragraph of the answer should have been carried back and sustained to the complaint will not be reviewed in the absence of an assignment that the court's failure so to do was error.-McAfee V. Bending (Ind. App.) 412. *Joint assignments of errors by appellants as to whom different judgments were rendered held to present nothing for review.-Stemen v. Knudson-Mercer Lumber Co. (Ind. App.) 812. § 13. Briefs. *Points relied upon for reversal cannot be urged for the first time in the reply brief.-Harrow v. Grogan (Ill.) 350. An assignment that the court erred in overruling a demurrer to certain paragraphs of the complaint held waived by defendant's failure to set out such paragraphs in his brief, or give a substantial statement of the facts therein alleged, as required by Sup. Ct. Rule 22, d. 5 (55 N. E. vi).-Springer v. Bricker (Ind. Sup.) 114. A brief merely alleging that paragraphs of the complaint to which it was claimed a demurrer was erroneously overruled failed to allege a particular fact held insufficient to present *Point annotated. See syllabus. the error relied on, as required by Sup. Ct. | of fact on which the judgment of the Appellate *Statement and points in brief under an assignment of error held not to satisfy Sup. Ct. Rule 22 (55 N. E. vi).-American Food Co. v. Halstead (Ind. Sup.) 251. *Alleged errors in overruling a motion for a new trial arising on instructions given by the court of its own motion were not presented for review where the brief on appeal did not show where in the record the instructions might be found, nor set out the substance or a copy of the instructions.-Capital Nat. Bank v. Wilkerson (Ind. App.) 258. Rule 22 (55 N. E. v), relating to the recital of the evidence in the brief, cannot be invoked where the brief sufficiently conforms to the rule to enable the court to comprehend the proposition relied on.-Hall v. Terre Haute Electric Co. (Ind. App.) 334. * Appellant is not entitled to a reversal of a judgment as of right for appellee's failure to file a brief.-McAfee v. Bending (Ind. App.) 412. On the failure of appellant in his brief to recite the evidence, as required by Appellate Court Rule 22 (55 N. E. v), the question of the sufficiency of the evidence to support a finding held not reviewable.-Hartzell v. Hartzell (Ind. App.) 439. Appellant's brief held to sufficiently set out the complaint and demurrer thereto to entitle appellant to a review of an order overruling such demurrer.-Hay v. Bash (Ind. App.) 644. Appellant's brief held to sufficiently contain the averments of defendant's cross-complaint to entitle appellant to a review of the sufficiency thereof on appeal.-Nichols & Shepard Co. v. Berning (Ind. App.) 776. Appellate Court Rule 22 (55 N. E. v), requiring a statement in appellant's brief of so much of the record as fully presents the error relied on, held not satisfied.-Ledbetter v. Coggeshall (Ind. App.) 787. Under the rule providing that, if the insufficiency of the evidence is assigned as error, appellant's brief shall contain a condensed recital of the evidence in narrative form, a statement of conclusions of counsel as to what the evidence shows is not sufficient.-Baker v. Gowland (Ind. App.) 1027. §14. Dismissal, withdrawal, or abandonment. Defendant in error, after joining issue and failing to interpose any special plea, cannot, by moving to dismiss, procure a trial of the question of fact as to the corporate existence of plaintiff in error.-Kanawha Dispatch v. Fish (Ill.) 352. An appellee held not to have waived his_right to have the appeal dismissed.-Hayes v. Locus (Ind. App.) 649. *The appellate court must take notice of its want of jurisdiction of a cause appealed to it. Yakey v. Leich (Ind. App.) 926. A ruling on demurrer to the complaint will not be reviewed where the same question was presented by an exception to the court's conclusion of law based on a special finding of Wolff (Ind. Sup.) 247. facts. Board of Com'rs of Laporte County v. The report of a commissioner appointed by the court to take and report the evidence cannot be treated as a special finding of fact, and made subject to exceptions as such.-Harrah v. State (Ind. App.) 443. Under Burns' Ann. St. 1901, §§ 401, 670, a judgment for plaintiff held to be sustained, though the court erred as to theory on which it was based.-Princeton Coal & Mining Co. v. Gilmore (Ind. App.) 787. Where a case is submitted on an agreed statement of facts, the only question of law on appeal is whether there is any evidence which warrants the finding.-Smith v. City of Lowell (Mass.) 956. Parties entitled to allege error. $17. A party who on introducing a paper in evidence obtains a ruling that certain memoranda should be excluded should erase such memoranda.-Warth v. L. Loewenstein & Sons (Ill.) 379. *A case within the rule that one on whose objection competent testimony to prove a fact is excluded cannot afterwards assert that the fact is not proved held shown by the facts.-Spaulding v. Mott (Ind. Sup.) 620. *In proceedings under Acts 1903, p. 255, c. 145, to improve a highway, a party held not entitled to complain that a finding that the widening of the highway was necessary was unsupported where the court on his objection excluded competent evidence.-Spaulding v. Mott (Ind. Sup.) 620. 229. 8 19. Presumptions. Where a ruling indicated a radically wrong § 20. Discretion of lower court. § 15. Hearing and rehearing. 822. 16. Review eral. Under Hurd's Rev. St. 1897, c. 33, §§ 23, 10, the Appellate Court has power to assess damages where an appeal is prosecuted for delay, and the exercise of this power will not be reviewed in the absence of any showing that it is Chimney Const. Co. (Ill.) 850. has been abused.-McCarthy v. Alphons Custod In an action for personal injuries, question The extent to which cross-examination may whether the verdict is excessive is a question go is left largely to the discretion of the trial *Point annotated. See syllabus. |