for costs. The motions for a venire de novo and in arrest of judgment were on the ground that the verdict was defective in not fixing the punishment, and the motion for a new trial was on the ground, among others, that the verdict was contrary to law. The objection mentioned to the verdict is the only one urged under all three of these motions. Such a verdict is expressly authorized, as we have recently held, under both of the acts mentioned; and we have affirmed the validity of both of said acts. Miller v. State (No. 18,274, at this term) 49 N. E. 894; Wilson v. State (No. 18,252, at this term) 49 N. E. 904. There appearing in the record no error, the judgment must be, and is, affirmed.

JORDAN, J., took no part in this decision.

ZEILINSKI ▼▾. STATE.

(Supreme Court of Indiana. April 28, 1898.) CRIMINAL LAW-REFORMATORY ACT--PUNISHMENT.

4 Horner's Rev. St. 1897, § 8253b et seq., establishing the Indiana reformatory, and providing that, where a jury find guilty of felony one between the ages of 16 and 30, the court shall sentence him to the reformatory for not less than the minimum, nor more than the maximum, time prescribed by the statute, to be determined by the board of managers according to its rules, did not, by implication, repeal the provisions in Burns' Rev. St. 1894, § 2007 (Rev. St. 1881, § 1934), permitting a punishment for a felony by imprisonment in the county jail. Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

repealed by the indeterminate sentence law, nor by the Indiana reformatory act, as to the alternative permitting imprisonment in the county jail. This case is directly in point, and discloses the error of the trial court in the case before us. See, also, Bealer v. State (No. 18,558) 50 N. E. 302. The judgment is reversed, with instructions for the return of the prisoner to the sheriff of St. Joseph county, and the direction to the lower court to grant a new trial.

BARNARD v. STATE.

(Supreme Court of Indiana. April 29, 1898.) CRIMINAL LAW-PUNISHMENT-DETERMINATION BY JURY.

It is error to refuse to instruct the jury, in a prosecution for petit larceny, that they may determine whether the punishment be imprisonment in the county jail, or in the penitentiary or reformatory, in case they find defendant guilty, since the indeterminate sentence law and the Indiana reformatory act (Laws 1897, p. 69) apply only to those felonies actually punishable by confinement in the penitentiary.

Appeal from circuit court, Hancock county; E. J. Binford, Special Judge.

Alonzo Barnard was convicted of petit larceny, and he appeals. Reversed.

Alonzo Barnard, Mason & Jackson, and Marsh & Cook, for appellant. John F. Wiggins, B. A. Black, and W. A. Ketcham, for the State.

Reversed.

Talbot & Talbot, for appellant. W. A. Ketcham, Atty. Gen., for the State.

HACKNEY, J. The appellant was charged, tried, and convicted of petit larceny; and his sentence was to confinement in the Indiana reformatory for a period of not less than one nor more than three years. At the trial, by instructions asked and refused, and by instructions given and excepted to, the question was presented as to whether the appellant's punishment might be by confinement in the county jail, and by fine and disfranchisement, as provided by section 2007, Burns' Rev. St. 1894 (section 1934, Rev. St. 1881). Evidently the trial court was of the opinion that the act of 1897, establishing the Indiana Reformatory (4 Horner's Rev. St. 1897, § 8253b et seq.), had the effect to repeal the provision of section 2007 (1934), supra, as to the punishment for petit larceny, where it may appear that the punishment deserved is by confinement in the county jail. In this conclusion the trial court erred. In the recent case of Hicks v. State (Ind. Sup.) 50 N. E. 27, this court held that the class of statutes permitting punishment for felonies by imprisonment in the county jail, in lieu of confinement in the state's prison, were not

proper to determine whether the punishment, in the event of a finding of guilt, should be by imprisonment in the county jail, instead of the penitentiary or reformatory. As held by this court in Hicks v. State, 50 N. E. 27, and Zeilinski v. State, ubi supra, such right exists, and such instruction should be given. On the authority of these cases, this judgment is reversed, with instructions to the lower court to grant a new trial.

MICHIGAN MUT. LIFE INS. CO. v.
FRANKEL.1

(Supreme Court of Indiana. April 28, 1898.) APPEAL-PARTIES-DISMISSAL-WAIVER.

1. Where no appeal bond is filed in the term the judgment is rendered, and no time fixed for filing by the court, it is not a term-time appeal, contemplated by Laws 1895, p. 179, providing that in term-time appeals one appellant need not make other parties to the judgment co-appellants.

2. Where plaintiff demanded and secured judgment jointly against two defendants, and a special finding disclosed that relief was granted for the wrong of both, by which both benefited, one cannot be relieved from making the other a party on appeal on the ground that the latter was not affected by the judgment; and this though he suffered default in the lower court.

1 Rehearing nendiug

JORDAN, J. This action was commenced by the appellee against her husband, Jacob Frankel, and the Michigan Mutual Life Insurance Company, in the superior court of Marion county. The purpose of the suit was to set aside a deed executed by the plaintiff and her said husband to his co-defendant, whereby they purported to convey to the latter certain described real estate in the city of Indianapolis, owned by the plaintiff, and to quiet her title against both of the defendants to the real estate in controversy. The complaint is in four paragraphs. The first alleges possession and ownership of the realty in the plaintiff, and avers that the defendants assert an adverse claim or title to the same, and the prayer is that the plaintiff's title be quieted. The others allege that the execution of the deed in dispute was procured by the fraud and deceit of the defendants, and the relief sought is to set aside the conveyance, and to quiet title to the land. The defendant Jacob Frankel made default to the complaint in the superior court, and subsequently, on motion, the cause was venued to the Hamilton circuit court, wherein the issues were joined upon the several pleadings filed; and a trial resulted in a special finding in favor of the plaintiff, and recovery by her of a judgment against the defendants, setting aside the deed of conveyance, and quieting her title as against both defendants, and adjudging a lien in favor of appellant on the real estate, as against the appellee and her said husband, on account of street improvements and other liens against the real estate paid by the appellant; and a foreclosure of the said lien was ordered by the court, as a part of its judgment. From this judgment, appellant alone appeals, without notifying Jacob Frankel and making him a co-appellant, as required by section 647, Burns' Rev. St. 1894 (section 635, Rev. St. 1881); and, for this failure upon the part of the appellant, appellee moves to dismiss the appeal. Counsel for appellant contend that this motion should not be sustained, for the following reasons: First, that the appeal is a term-time appeal, and therefore, under the provisions of the act of 1895 (Acts 1895, p. 179), it was not necessary to notify or make 50 N.E.-20

Jacob Frankel a co-appellant; second, that It does not appear that said Frankel had any interest in the real estate in common with the appellant, and that the judgment quieting appellee's title against him is merely surplusage, and consequently he has no appealable interest, and cannot be affected by any judgment that may be rendered in this appeal by this court; third, that the motion of appellee to dismiss was not seasonably filed, and therefore she has waived her right to demand that the appeal be dismissed.

An examination of the record reveals that on July 13, 1896, the same being the last judicial day of the April term of the Hamilton circuit court, that court made its special finding in the cause, and rendered the judgment thereon in favor of the plaintiff against the defendants, as heretofore stated. On the first day of the next term of that court, the same being September 7, 1896, appellant filed its motion for a new trial, which the court on that day overruled; and appellant then applied for a new trial, under the statute, as a matter of right. On the 29th day of September, 1896, which was the twentieth judicial day of the September term, this application was denied, and 60 days were granted to file a bill of exceptions; and the record discloses the following entry: "And the defendant prays an appeal to the supreme court, which is granted, and the bond fixed at $300, to be filed herein, properly conditioned, with the American Surety Company as surety, and said bond is to be approved upon such condition." The record does not show that any appeal bond was filed in term, or that any time was fixed by the court for the filing thereof. The transcript was not filed in this court until February 6, 1897, more than four months after the application for a new trial as a matter of right was denied, and the penalty and surety fixed and approved, by the court. It is evident, under these circumstances, that this is not a term-time appeal. Section 650, Burns' Rev. St. 1894 (section 638, Rev. St. 1881), which pertains to appeals during term, provides: "When an appeal is taken during the term at which the judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal-bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct.

* The transcript shall be filed in the office of the clerk of the supreme court within sixty days after filing the bond." The statute provides the steps which must be taken in order to effect a term-time appeal, and thereby relieve the appellee from giving the notice required by law in vacation appeals. The penalty of the appeal bond must be fixed. and the surety named and approved, by the court, during the term at which the final judgment is rendered; and the bond, conditioned according to law, must be filed within the time directed by the court. Where, in the opinion of the court, the occasion or cir

cumstances render it necessary, the time in which the court directs the bond to be filed may extend beyond the close of the term. In all term-time appeals, however, it is essential and requisite, to render the same effective as such, that a bond be filed within the time designated by the court, and the transcript must be filed in the office of the clerk of the supreme court within 60 days after filing the bond. Where no bond is filed, the appeal must be considered a vacation appeal, and notice must be given as provided by the statute in such appeals. Holloran v. Railway Co., 129 Ind. 274, 28 N. E. 549; McKinney v. Hartman, 143 Ind. 224, 42 N. E. 681; Elliott, App. Proc. §§ 247, 248. In the case at bar, as we have seen, no time appears to have been fixed at the September term, at which the motion for a new trial was overruled, for filing an appeal bond; nor does the record disclose, so far as we have been able to ascertain, the filing of such a bond. Under such circumstances, the appeal must be deemed to be nothing more than a vacation appeal, and hence is not controlled by the provisions of the act of 1895, supra.

In response to appellant's second ground of insistence, it is sufficient to say that the appellee in her complaint demanded and secured a judgment jointly against both of the defendants, and the special finding discloses that the deed for the land to appellant was obtained from her through the wrong of both defendants; and it further appears from said finding that the defendant Jacob Frankel was benefited by the conveyance in dispute, for the reason that it resulted in the satisfaction, to the amount of $3,000, of an indebtedness of his held against him by appellant. This deed of conveyance the judgment below, as heretofore stated, set aside, and quieted plaintiff's title against the defendants to the real estate which the deed purported to convey. Certainly, under the facts, Jacob Frankel is affected by the judgment which appellant seeks by this appeal to overthrow, and he would necessarily be affected in his substantial rights by the judgment of this court. The fact that he was defaulted in the lower court does not affect the question, for he was still entitled to his right of appeal, regardless of his default; and on such appeal he could at least challenge the sufficiency of the complaint and the jurisdiction of the court. Lee v. Mozingo, 143 Ind. 667, 41 N. E. 454, and cases there cited. In order, therefore, to give this tribunal complete jurisdiction over the cause, it is clear that appellant ought to have made him a co-appellant herein, and notified him, as provided by section 647 (635) supra.

The fact that appellee did not move to dismiss this appeal until after the submission of the cause in this court, and the filing of her brief upon the merits of the action, cannot serve as a waiver, nor a bar to the dismissal of the appeal. We are aware that some of the early decisions of this court (for in

stance, Field v. Burton, 71 Ind. 380, and Burk v. Simonson, 104 Ind. 173, 2 N. E. 309, and 3 N. E. 826, and others) support the contention of appellant in this respect; but these decisions, on this point, have been impliedly overruled by the later cases, which hold that the question is one relating to jurisdiction, and is therefore a matter which neither the parties to the appeal, nor the court itself, can waive or disregard, and the court may, and properly should, dismiss such appeal, on its own motion, for want of jurisdiction. See Hutts v. Martin, 131 Ind. 1, 30 N. E. 698; Vordermark v. Wilkinson, 142 Ind. 142, 39 N. E. 441; Lee v. Mozingo, supra; Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, and 47 N. E. 150; Abshire v. Williamson (at this term) 48 N. E. 1027, and authorities there cited. In the case last cited we said: "It is a fundamental rule in jurisprudence that, before any court will proceed to adjudicate upon the subject-matter, it must first acquire jurisdiction over all the parties whose rights or interests will be necessarily affected by its judgment. Not having the power, under the facts, to decide this case as an entirety, unless all of the necessary parties are brought into court as required by law, therefore we will not violate the well-settled rule which forbids the decision of a case in fragments, by asserting authority to make a partial decision in this case, which must be regarded as an entire and indivisible cause, but may, and properly should, dismiss the appeal on our own motion." The motion must be sustained, and the appeal is therefore dismissed.

1. A railroad employé claiming damages for personal injuries submitted to the company a proposition of settlement, one stipulation being that he was to "remain in the service of the company as long as he desired, providing his work was satisfactory." He subsequently signed a release which the company's claim agent presented to him, in which it was agreed to reemploy him "for such time only as may be satisfactory to said company." Held that, in the absence of fraud or mistake, he was presumed to have known the contents of the instrument, and to have consented to such variation from the terms proposed.

2. Where a railroad company, in consideration of a release of its liability for an injury to an employé serving as "extra freight brakeman," agreed to re-employ him as "freight brakeman, "the contract is to be construed with reference to the nature of the previous employment, and the acts of the parties thereunder, the employé serving and accepting pay as an extra.

Appeal from circuit court, Elkhart county; H. D. Wilson, Judge.

Action by William H. Phares against the Lake Shore & Michigan Southern Railway Company. The defendant had judgment, from which the plaintiff appeals. Affirmed.

Henry C. Dodge, for appellant. Baker & Miller, for appellee.

BLACK, J. The court rendered judgment for the defendant upon a special verdict in an action brought by the appellant against the appellee. The controlling facts of the lengthy special verdict were as follows: The railroad company had two classes of freight brakemen, one called "regular" freight brakemen and the other "extra" freight brakemen. The appellant entered the service of the appellee on the 6th day of September, 1892, and during all the time of his service was an extra freight brakeman. He suffered a personal injury while in such service, on the 29th of October, 1892. On the 25th of March, 1893, the appellant signed a writing, referred to in the special verdict as a proposition, and as a written option, and as an offer of compromise, as follows:

"Elkhart, Indiana, March 25th, 1893. For and in consideration of the sum of one dollar to me in hand this day paid by the Lake Shore and Michigan Southern Railway Company, I hereby stipulate and agree to and with the said company that I will accept from it the sum of three hundred dollars, and, further, that I am to remain in the service of said company as brakeman as long as I want to, providing my work shall prove satisfactory to said company, as full settlement and satisfaction of all claims and demands of every kind, nature, and description which I have or may be entitled to have against said company by reason of personal injuries sustained by me while a freight brakeman of said company at or near Dune Park station, in the state of Indiana, on the 29th day of October, 1892; and in consideration thereof to execute and deliver to said company a full, perfect, and complete release and satisfaction: provided the same is paid to me within forty-five days from the date hereof. W. H. Phares. [Seal.] Witnesses: C. A. Theis. C. C. Needham.

"Elkhart, Indiana, March 25th, 1893. I, the aforesaid W. H. Phares, do hereby acknowledge receipt from the Lake Shore and Michigan Southern Railway Company by the hands of C. C. Needham, its agent, the said sum of one dollar mentioned in the above agreement. W. H. Phares. Witnesses: C. A. Theis. C. C. Needham."

On the 10th day of May, 1893, the appellant signed a writing as follows:

"Form No. 1,284. Whereas, on the 29th day of October, A. D. 1892, the undersigned, while in the employ of the Lake Shore and Michigan Southern Railway Company as freight brakeman, received certain injuries as follows, to wit, while uncoupling engine had his left hand caught between pin and end sill of car C. L. & W. 3718, one finger amputated, and another bruised, while in the discharge of his duties, at or near Dune Park station, in the state of Indiana; and whereas, I, the said William H. Phares, believe that my said in

juries are the result of the negligence of said railway company, its officers, agents, and employés; and whereas the said railway company denies any and all negligence on the part of itself, its officers, agents, and employés, and denies any and all liability to me for damages for the injuries so as aforesaid by me sustained, but by reason of an offer of compromise made by me the said L. S. & M. S. Ry. Co., for the purpose of avoiding litigation, to receive and accept the sum of three hundred dollars in full accord and satisfaction for all claims for damages which I may or might have for the injuries aforesaid, have paid to me the sum of three hundred dollars, and agree to re-employ me as a freight brakeman for such time only as may be satisfactory to said company: Now, therefore, in consideration of the premises, and the payment to me of the aforesaid sum of three hundred dollars, the receipt whereof I do hereby acknowledge, I do hereby release and forever discharge the said Lake Shore & Michigan Southern Railway Company and all other parties in interest of and from all actions, suits, claims, and demands for or on account of or arising from the injuries so as aforesaid received, and every and all results hereafter arising therefrom. Witness my hand and seal, at Elkhart, Indiana, this tenth day of May, A. D. 1893. William H. Phares. [Seal.] Signed, sealed, and delivered in presence of C. C. Needham, J. W. Gainard.

"Lake Shore and Michigan Southern Railway Company, to William H. Phares, Dr. Issued April 28, 1893, c/o A. B. Newell, Chicago, Ill. For settlement in full of all claims and demands to date, especially for personal injuries sustained at Dune Park, Indiana, October 29th, 1892, as per attached form G. S. 1,284, $300.00.

"Received, Elkhart, May 10th, 1893, of the Lake Shore and Michigan Southern Ry. Co. three hundred dollars, in full of the above account. $300.00. William H. Phares. "Correct: W. H. Cahniff, Gen. Sup't. "Audited: C. P. Lehand, Auditor. "Approved: P. P. Wright, Ass't Gen'l Manager."

On the 25th of March, 1893, and during the whole of that month, and on the 10th day of May, 1893, and during the whole of that month, the appellant was employed by the appellee as an extra freight brakeman; and from the time of his first employment down to the 26th of June, 1894, whenever he was called upon to do work, he was put upon the appellee's pay roll of extra freight brakemen, and he received pay as such. At the date last mentioned the appellee put in force a seniority list of all brakemen, whereby those in the appellee's service for the shortest time were put upon the list of extra freight brakemen, and the youngest of the extra freight brakemen in the service, to the number of 10, were temporarily laid off until business should revive. From that date to the commencement of this action the appellant's

name was kept upon the list of the extra freight brakemen who were so laid off, to be called into service as extra freight brakemen, according to their seniority of service, whenever business should revive so as to give them active employment. It was found that the offer of compromise referred to in the writing of May 10, 1893, was the same offer of compromise contained in the writing of March 25, 1893; that this offer of March 25, 1893, was accepted by the appellee by C. C. Needham, claim agent, before the execution of the written release and written receipt dated May 10, 1893; that said Needham agreed with the appellant that the terms regarding appellant's employment contained in the written option of March 25, 1893, should be embodied in the written papers dated May 10, 1893, which were signed by the appellant. It was also found that the appellee, on or about the 10th of May, 1893, accepted a proposition made by the appellant in said writing, dated March 25, 1893, and paid him $300; that the general officers of the appellee sent the release and receipt, both dated May 10, 1893, to Needham, to be signed by the appellant; that after the execution of the writings dated May 10, 1893, no new or different arrangement regarding the appellant's employment was entered into between the parties. It was further found that the principal and most valuable consideration in said compromise and agreement was the agreement by the appellee to furnish the appellant employment as brakeman as long as he wanted it and gave satisfaction in his work; that at all times from the 10th of May, 1893, until the bringing of this suit he was ready and willing to perform the duties of freight brakeman in the service of the appellee, and to give satisfaction therein, whenever the appellee would permit him to perform said work, and he went to the appellee, its officers and agents, repeatedly, asking permission to work for the appellee as a freight brakeman, which he offered to do to the satisfaction of the appellee; that the appellee did not furnish him work as freight brakeman from the time of said compromise settlement until the trial, to exceed amount (which it paid) of $173.90; that his service as a freight brakeman was worth $50 per month from May 10, 1893, to October 23, 1894 (the commencement of the action), and to March 16, 1896 (the time of the trial); that in August, 1895, he rented a farm for two years; that he used diligence in trying to obtain employment, etc., and had been able to earn in the aggregate $10 per month during the period between May 10, 1893, and the trial; that his loss and damage by reason of the failure of the appellee to employ him as a freight brakeman for the remainder of the time for which he wanted said employment after the date of the trial would be one dollar.

an

While the proposition for compromise given by the appellant to the claim agent on the

25th of March, 1893, contained a stipulation on the part of the appellant that "I am to remain in the service of said company as brakeman as long as I want to, providing my work shall prove satisfactory to said company," the written instrument containing the release sent by the appellee through the claim agent in response to the appellant's proposition, and containing a reference thereto, to be signed by the appellant, and by him signed, bearing date May 10, 1893, did not contain such a stipulation or provision, but, instead of it, provided that the appellee agreed "to re-employ me as a freight brakeman for such time only as may be satisfaetory to said company." The claim agent agreed with the appellant that the contract releasing the appellee should contain such a provision concerning the employment of the appellant as that contained in the appellant's proposition; but when the release came from the general officers to the claim agent, to be signed by the appellant, and the money consideration was paid, and the release was finally executed, it did not correspond with appellant's proposition and the claim agent's promise. There is no finding of any mistake or of fraud or fraudulent conduct, no indication that the appellant did not know the contents of the papers which he signed, dated the 10th of May, 1893, which is the date throughout the verdict referred to as the time of the acceptance of the offer of compromise by the appellee, and as the date of the settlement between the parties. The contents of this instrument of release clearly indicated to the appellant that his proposition was not accepted as to all its stipulations by the appellee, and that it would settle upon different terms as set forth in the form of release sent by the general officers. As to the final agreement of settlement, there can be no doubt that it was contained in the paper dated the 10th of May, 1893. So far as it differed from the written proposition of the appellant or the oral promise of the claim agent, the appellant must be deemed to have consented to such variance when, without fraud or imposition, which cannot be presumed, he accepted the money, and attached his signature. No ground for the reformation of the contract appears, if such had been the purpose of the action. The appellant was paid a specified sum for his services rendered after the compromise. They were all rendered in the capacity of an extra freight brakeman. It does not appear that this sum was not full payment for the services actually rendered. If he had been employed as a regular freight brakeman, he would have earned a larger sum. But the appellant had been employed only as an extra freight brakeman up to the time of his injury, and he served and was paid in that capacity after the compromise. The contract to re-employ him as a freight brakeman is properly construed by considering the nature of his previous employment,