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ical examiner of the branch to which he be- reason of the neglect of such officer the aplongs, and present to the supreme medical pellee was prevented and was unable to comdirector for allowance, and from the action ply with the laws and rules of the order, and, of such medical director he has an appeal; having a just and lawful claim against the but the laws do not give to him the right of order, he had the right to bring suit, and the appeal from the action of the officers of the recovery cannot be disputed by the appellant local branch in refusing to sign his certificate. on the grounds that one of the officers of a The only duty of the medical director to al- local branch of the order refused to sign his low sick benefits pointed out by the law of certificate, which would enable him to prethe appellant, as set out in the record, is in sent his claim properly certified for allowance. section 7, which provides for his approval of There is no error in the record for which the the member's claim for sick benefits. For va- judgment should be reversed. Judgment afrious reasons the medical director might dis-firmed, with costs. approve such claim,-if it was not properly certified; if the sickness had occurred within

(121 Ind. 280) the first 60 days from the date of the mem

KIRKPATRICK 0. REEVES et al. ber's initiation,—and the appeal would lie to determine whether the decision of the medi

(Supreme Court of Indiana. Oct. 10, 1889.)

FALSE REPRESENTATIONS-SALES. cal director was correct or not. Why, then, require the member to present a claim to the which are untrue, and the purchaser relies thereon

Where the seller makes material statements supreme medical director for allowance, in making the purchase, such representations are which was not properly certified and entitled fraudulent, and it is immaterial that the seller be to allowance by him? Conceding, but not lieved them to be true. deciding,-for it is unnecessary to decide the Appeal from circuit court, Montgomery question in this case,—that the law is as con- county; E. C. SNYDER, Judge. tended by counsel for appellant, viz., that the Action by Henry C. Reeves and others appellant was bound by his contract not to against John J. Kirkpatrick for fraudulently institute legal proceedings for the collection inducing plaintiffs to buy a jackass. Judgof his claim until he bad exhausted all rem- ment for plaintiffs, and defendant appeals. edies of appeal within the order, as prescribed Johnson & Johnson and Kennedy & Kenby the laws, rules, and regulations of the or- nedy, for appellant. Paul, White & Hum der, it was the duty of the appellant to pre- phries, for appellees. scribe in its laws a specific mode for the presentment and allowance of claims for sick ELLIOTT, C. J. The appellee's complaint benefits, and provide a mode of appeal from charges that the appellant induced him to such otlicer or branch to whom or which the buy a jackass by false and fraudulent repreclaim was to be presented. The laws of the sentations, and on the issue joined the jury order which we have been referred to do not returned a general verdict in favor of the apmake any such provision. The only appeal pellee. This verdict must control, unless the prescribed in case of sick benefits is from the facts found in answer to the interrogatories medical director, and he is not empowered are utterly destructive of it. Railroad Co. with authority to allow or fix the amount, v. Ellison, 117 Ind. 234, 20 N. E. Rep. 135; but to approve the claim after it has been Railroad Co. v. Clifford, 113 Ind. 460, 15 N. properly certified, or he may no doubt disal- E. Rep. 524, and cases cited. No intendlow the claim. Section 5, as set out in the ments can be made in aid of the answers to record, provides that the supreme medical di- interrogatories, nor will they defeat the genrector shall carefully examine all reports and eral verdict if they are contradictory in them. papers relating to the sickness or disability of selves. Redelsheimer v. Miller, 107 Ind. a member of the order, and render his decis. 485, 8 N. E. Rep. 447; Rice v. Manford, 110 ion thereon; but section 7 points out the Ind. 596, 11 N. E. Rep. 283; Railroad Co. v. mode by which the claim shall be presented Ostrander, 116 Ind. 259, 15 N. E. Rep. 227, to him.

and 19 N. E. Rep. 110. As the general verdict There is no controversy made in the case finds that false and fraudulent representain regard to the right of the appellee to the tions were made by the defendant and acted benelits claimed, and no excuse given for the upon by the plaintiff, the judgment must refusal of the officer to sign bis certificate. stand, unless it can be adjudged that the an. The conclusion we reach is that the claim for swers to the interrogatories, taken as an ensick benefits for which judgment was ren- tirety, show that there was no fraud. Raildered was due the appellee, and he made a road Co. v. Beyerle, 110 Ind. 100, 11 'N. E. proper effort to have the local officers of the Rep. 6; Railroad Co. v. Savage, 110 Ind. 156, 9 branch to which he belonged sign his certif- N. E. Rep. 85; Smith v. Heller, 119 Ind. 212, icate. One of them refused without cause to 21 N. E. Rep. 657. We cannot, as a matter sign it.

Under the laws of the order he was of inference, conclude from mere evidentiary required to present the certificate, properly matters that there were no fraudulent repro signed, to the supreme medical director. By sentations, for we cannot act upon mere state reason of the neglect of the officer of the local ments of evidence, for such statements are branch he was prevented from obtaining, and out of place in answers to interrogatories, as · was unable to obtain, a proper certificate of well as in a special verdict. We can only his sickness to present to the director. By consider the facts; and facts are more than

1 Rehearing denied,

TIONS.

the evidence, for they are the ultimate con-F. & J. 518; Bullis v. Noble, 36 Iowa, 618; clusions established by the evidence. Phelps Raley v. Williams, 73 Mo. 310; Railroad Co. v. Smith, 116 Ind. 387, 17 N. E. Rep. 602, and v. Railway Co., 10 Sawy. 464, 22 Fed. Rep. 19 N. E. Rep. 156; Bartholomew v. Pierson, 245; Cragie v. Hadley, 99 N. Y. 131, 1 N. Ē. 112 Ind. 430, 14 N. E. Rep. 249; Stix v. Sad- Rep. 537. On the facts found we must hold ler, 109 Ind. 254, 9 N. E. Rep. 905; Railroad that there was a fraudulent purpose, and we Co. v. Bush, 101 Ind. 582; Railroad Co. v. cannot make any inferences or intendments Spencer, 98 Ind. 186; Dixon v. Duke, 85 for the purpose of overthrowing the general Ind. 434. Courts must act upon the facts verdict. The mere fact that a statement is stated, and not upon items of evidence im- untrue will not warrant the conclusion that properly thrust into a special verdict, or an- there was fraud. Furnas v. Friday, supra. swers to special interrogatories. Railroad But in this instance, taking all of the anCo. v. Cauly, 119 Ind. 142, 21 N. E. Rep. swers of the jury into consideration, and giv546. The facts found by the jury do not ing due weight to the general verdict, we warrant the conclusion, as against the gen- must hold that there was much more than an eral verdict, that no false and fraudulent rep- untruthful representation. The verdict canresentations were made by the appellant. It not be disturbed upon the evidence. Judgclearly appears that his statements were un- ment affirmed. true; and therefore the only question is,

(120 Ind. 289) were they fraudulent? And unless the facts CLEVELAND, C., C. & I. Ry. Co. 0. ASBURY. found effectually and irreconcilably antago

(Supreme Court of Indiana. Oct. 11, 1889.) nize the general verdict, we must hold that NEGLIGENCE — PLEADING — COMPLAINT – INSTRUOthe statements were fraudulently made. They were made to induce the plaintiff to buy the 1. In an action against a railroad company for animal. They were relied upon, and the de- personal injuries, where the complaint charges defendant professed to possess knowledge of fendant with negligence, but uses the qualificatheir truth.

tions “wanton,”“willful,” and“ with the intention Under these circumstances it to injure plaintiff,” the gravamen of the action is cannot be asserted, in view of the conclusion simple negligence, and the complaint states a good embodied in the general verdict, that the rep-cause of action. resentations were not fraudulent, although of Rev. St. Ind. & 4020, requiring railroad compa

2. Though an instruction follows the language the defendant believed them to be true. Anies to have upon their locomotives such whistles belief in the truth of a statement does not and bells as “are now in use or may hereafter be always clear the person who makes it of a used by well-managed railroads,” the jury can only

understand that defendant was bound to furnish fraudulent purpose, or relieve him from lia- such whistles and bells as were in use at that bility. The law upon this subject was thus time; and the words relating to the future are not stated in Litchfield v. Hutchinson, 117 Mass. prejudicial. 197: “But it is not always necessary to prove fact covered by the interrogatories to the jury, and

3. Where there is evidence bearing upon every that the defendant knew that the facts stated the latter return evasive answers thereto, it is erby him were false. If he states, as of his ror to receive such answers; and where direct anown knowledge, material facts susceptible of swers might change the general verdict, the court knowledge, which are false, it is a fraud in direct language, or to inform it of their disawhich renders him liable to the party who re greement, if any. lies upon the statements as true; and it is no defense that he believed the facts to be true.”

Appeal from circuit court, Madison counThis is the rule declared by our own cases.

ty; E. B. GOODYKOONTZ, Judge. Slauter v. Favorite, 107 Ind. 291-299, 4 N.

Action by Jemima Asbury against the

Cleveland, Columbus, Cincinnati & IndianE. Rep. 880; Furnas v. Friday, 102 Ind. 129, 1 N. E. Rep. 296; West v. Wright, 98 Ind: apolis Railway Company for personal in335; Roller v. Blair, 96 Ind. 203; Bethell v: and defendant appeals. Rev. St. Ind. g 4020,

juries. There was a judgment for plaintiff, Bethell, 92 Ind. 318; Brooks v. Riding, 46 Ind. 15; Krewson v. Cloud, 45 Ind. 273; provides that all railroads shall have upon Booher v. Goldsborough, 44 Ind. 490; Fren: their locomotives such whistles and bells "as zel v. Miller, 37 Ind. 1. This doctrine is held are now in use or may hereafter be used” by

well-managed railroads. by many other courts. 8 Amer. & Eng.

H. H. Poppleton, S. H. Holding, and RobCyclop. Law, 642. A defendant who makes a statement of his own knowledge cannot es- inson & Lovett, for appellant. Thompson &

Orr, for appelice. cape liability upon the ground that he acted upon trustworthy information. An unqual. BERKSHIRE, J. This was an action instiified statement that a fact exists, made for tuted by the appellee to recover damages on the purpose of inducing another to act upon account of personal injuries which she claims it, implies that the person who makes it, to have sustained because of the fault of the knows it to exist, and speaks from his own appellant. The appellant filed but one paraknowledge. If the fact does not exist, and graph of answer, which was a general de the defendant states of his own knowledge nial. There was a jury trial, a verdict rethat it does, and induces another to act upon turned for the appellee, and, over a motion his statement, the law will impute to him a for a new trial, a judgment rendered for the fraudulent purpose. Fisher y. Mellen, 103 appellee. The appellant appeals to this court, Mass. 503; Brownlie v. Campbell, L. R. 5 and assigns two errors, as follows: (1) The App. Cas. 925; Slim v. Croucher, 1 De Gex, court erred in overruling the demurrer to the

complaint; (2) the court erred in overruling|ing train be seen? A. In daylight it might the motion for a new trial.

have been seen a mile.

* (8) How The complaint charges negligence on the often was said whistle sounded before the part of the appellant, and want of negligence accident, as said train approached the crosson the part of the appellee, and, notwith-ing? A. We don't know what crossing standing the use of the adjectives “wanton” was meant. * * * (10) Was not a bell and “willful,” and the allegation “with the attached to said engine; and was not said bell intention to injure the plaintiff,” we think, rang continuously from said tile-shed crosstaking the complaint as a whole, that the ing to the place where the accident occurred ? gravamen of the action is simple negligence, A. There was a bell attached, but we do not and that a good cause of action is stated. know that it was rung continuously.” The

There are several causes alleged in the mo- answers to these interrogatories were evasive, tion for a new trial, but we will only notice and improper. There was evidence bearing those discussed in the briefs of counsel. But upon every fact covered by these interrogatobefore considering the questions thus raised, ries, and the jury should have answered them we will notice a question of practice, raised definitely, and in direct language. It would by the appellee. It is contended that the bill have been no more improper had the jury reof exceptions which contains the evidence is turned a general verdict, “We, the jury, do not not properly in the record, and should be dis- know whether we ought to find for the plainregarded. In Carver v. Carver, 115 Ind. 539, tiff or defendant,” than to have returned the 18 N. E. Rep. 37, which was an appeal from answers they did to the said interrogatories; the same court from which this appeal comes, and the court should have declined to receive that part of the record containing the bill of the answers returned, as it would have deexceptions was in the same condition exactly clined to receive a general verdict in the form as the record before us, and this court held we have given, upon proper objection made. in that case that the record was properly If there was a disagreement'among the memmade up. See Machine Co. v. Gray, 114 Ind.bers of the jury as to the answers that should 340, 16 N. E. Rep. 787. Instruction num- be made to the interrogatories, or if the evibered 2, asked by the appellee, and given by dence was such that they could not find the the court, follows the language of the stat- facts, or any of them, to which the interrogaute, (section 4020, Rev. St. 1881,) and we tories related, then the jury should have so indiscover no substantial objection to it. The formed the court, and in receiving the aninstruction would have been in better form swers so made the court committed an error. had it omitted the words relating to the fut- It should have sustained the motion of the apure, “or may be hereafter used," but we dopellant and required the jury to retire and renot think that the appellant was prejudiced turn proper answers to the interrogatories, or, because of the insertion of those words in in case of a disagreement, to so inform the the instruction. The jury could but have court. There seems to have been a disincliunderstood from the instruction that the ap- nation on the part of the jury to answer the pellant was bound to furnish, as attachments interrogatories. The answer to the eighth esto its locomotive engines, whistles and bellspecially indicates that: “How often was said such as were at the time being used by all whistle sounded before the adcident, as said well-managed railroad companies.

train approached the crossing?” There was The appellant, at the proper time, moved but one crossing in question, and that was the court to require the jury to retire to their the one where the accident happened; and

om to consider further of their answers to the jury could but understand that that was interrogatories numbered 4, 5, 6, 8, and 10, the crossing referred to in the interrogatory, submitted to them at the request of the ap- and yet they answer: “We do not know what pellant, and to return definite, certain, and crossing is meant.” The evidence was not direct answers thereto, which motion was complicated, and there was very little conoverruled, and an exception saved. These flict, if any, as to many of the facts inquired interrogatories and the answers thereto are for in these interrogatories, and especially as follows: “(4) Did not Daniel Asbury, the those relating to the care and caution exerowner of said horse, hear the whistle of the cised by the appellee and her husband. The approaching train while driving said horse appellant was entitled to full and fair anbetween the residence of Martha Helms and swers to its interrogatories. Buntin v. Rose, the crossing where the accident occurred ? 16 Ind. 209; Rosser v. Barnes, Id. 502; Sage Answer. We don't know by the evidence v. Brown, 34 Ind. 464; Peters v. Lane, 55 that it was the train whistle. (5) Could not Ind. 391; Maxwell v. Boyne, 36 Ind. 120; the plaintiff and Daniel Asbury have seen Reeves v. Plough, 41 Ind. 204; Hopkins v.. the approaching train, or the head-light of Stanley, 43 Ind. 553; Noakes v. Morey, 30 its locomotive, if they had looked from a point Ind. 103; Summers v. Greathouse, 87 Ind. on said high way thirty-five feet south of said 205; Trout v. West, 29 Ind. 51; Duesterberg crossing, in time to have averted the acci- v. State, 116 Ind. 244, 17 N. E. Rep. 624. dent? A. We don't know. (6) From a We are aware of the rule that the court may point thirty-five feet south of the crossing refuse to require the jury to retire and make where the accident occurred on the highway more definite answers to interrogatories, and or street along which Asbury drove, how that it will not be available error if the anfar froin said crossing could the approach-'swers demanded would not, if given, changu

the result as to the judgment to be rendered. of a transaction, where the transaction is itself adMachine Co. v. Gray, 100 Ind. 285; Railway

missible. Co. v. Hedges, 105 Ind. 398, 7 N. E. Rep. a pleading do not appear in the bill of exceptions

5. Where the grounds of a motion to strike out 801. But had the interrogatories under con- or elsewhere in the record, it cannot be said that sideration been answered in the affirmative, the court erred in overruling the motion. they would have controlled the general ver Appeal from circuit court, Hancock coundict. Affirmative answers to these interrog-ty; M. E. FORKNER, Judge. atories would have disclosed beyond question David Turpie and Gooding & Gooding, contributory negligence on the part of the for appellant. Wm. R. Hough and Marsh appellee and her husband, and gone far in & Cook, for appellees. the direction of establishing due care on the part of the appellant. The facts inquired BERKSHIRE, J. The appellant, who was for in the interrogatories under considera- the plaintiff in the court below, brought this tion are not covered by other interrogatories action to set aside the transfer to the appeland answers thereto. The eleventh inter- lee Samuel Steele, Jr., of a certain note and rogatory is as follows: “Could Daniel As- mortgage, and have them declared assets of bury, by the exercise of ordinary care in the estate. The appellees, John Steele and driving said horse, and in using his senses of Franklin Steele, Jr., filed an answer which sight and hearing, have heard or seen said they called a "disclaimer." Samuel Steele, train in time to have averted the collision who is an infant, and Franklin Steele, in his and injury?” The answer is: “He could capacity as guardian of the said Samuel Steele, not.” The question and answer involve a Jr., answered by a general denial. There legal conclusion, and cannot be regarded. was a jury trial, and a verdict returned for Railway Co. v. Worley, 107 Ind. 320, 7 n. the appellees. The appellant filed a motion E. Rep. 215; Railway Co. v. Pedigo, 108 for a new trial, which the court overruled, Ind. 481, 8 N. E. Rep. 627; Railroad Co. v. and he excepted to the ruling of the court, Ostrander, 116 Ind. 259, 15 N. E. Rep. 227, and thereupon the court rendered judgment and 19 N. E. Rep. 110; Insurance Co. v. for the appellees. Heimann, 93 Ind. 24. We have said all we The errors assigned are as follows: "(1) care to say with reference to the testimony The circuit court erred in refusing to strike given upon the trial. Because of the error out the disclaimer of John Steele and Frankof the court in overruling the motion to re- lin Steele from the pleadings, and in overrulquire the jury to retire and make more defi- ing the motion to allow a reply to be filed nite and certain the answers to the inter- thereto by the appellant. (2) The circuit rogatories the judgment must be reversed. court erred in overruling the motion of the Judgment reversed, with costs.

appellant for a new trial.” The grounds of

the motion to strike out the disclaimer do not (121 Ind. 436)

appear in the bill of exceptions or elsewhere WALKER 0. STEELE et al."

in the record. Therefore, if the motion had

been one which the court could have prop(Supreme Court of Indiana. Oct. 9, 1889.)

erly entertained, we cannot say that the court WITNESS-PROOF OF HANDWRITING_DECLARATIONS erred in overruling it. If no reasons were

-APPEAL. 1. Rev. St. Ind. 1881, $ 498, provides that, assigned, or, if reasons were given, if they where an administrator or executor is a party to were insufficient, then the court committed & suit involving, matters which occurred during no error in overruling the motion. decedent's life-time, no one who is a necessary Counsel for the appellant discuss at some party to the issue or record, whose interest is adverse to the estate, shall be a competent witness length the action of the court in overruling as to such matter, against the estate. Held that, the appellant’s motion for leave to file a dein a suit by an administrator to set aside an assign- murrer to the disclaimer, but the errors asment by decedent of a note and mortgage, a defendant of record, who is not a necessary party to signed are not broad enough to raise the the issue, and who is one of decedent's legatees, is question. a competent witness for the defense, as he could It is assigned as error that the court erred only be disqualified by being a necessary party in overruling the demurrer to the disclaimer,

2. In a suit against a guardian and ward, where but the record shows that no such demurrer they have answered separately, but both have an was filed, the court baving refused to allow interest in the subject-matter adverse to plaintiff, the appellant to file a demurrer. Under our the wife of the guardian is not a competent wit-Code of Practice, which abolishes all distinc. ness on behalf of the ward, under section 501, Rev. St. Ind. 1881, providing that “when the husband tion between law and equity, our mode of or wife is a party, and not a competent witness in procedure is much simplified, and the rules his or her own behalf, the other shall also be ex- of pleading and practice under the old system cluded.”

3. To show a forgery of decedent's writing, the in actions at law and suits in equity are very testimony of an expert that the writing in question much modified. Our present system does was not the same as that of the signature to what not recognize any such pleading as a dispurported to be the decedent's

will was properly claimer, except in actions for partition and excluded, where the signature to the will was not admitted to be genuine, as a comparison could only to quiet title. See section 1072, Rev. St. 1881. be made with writing which was admitted to be The paper filed by John and Franklin Steele, that of decedent. 4. The rule that a party cannot prove his own than an answer confessing the cause of ac

and styled a “disclaimer," was nothing moro declarations in the absence of the adverse party sioes not apply to declarations made in the course tion, and did not require a reply. Therefore, * Rehearing denied, 23 N. E. 271,

even had it been proper practice to file a re- halter, 86 Ind. 439; Upton v. Adams, 27 Ind. ply, the appellant was not injured because of 432; Scherer v. Ingerman, 110 Ind. 428, 11 the action of the court in refusing to allow N. E. Rep. 8, and 12 N. E. Rep. 304. him to reply thereto. See McAdams v. Lot The seventh reason assigned for a new ton, 118 Ind. 1, 20 N. E. Rep. 523, and au- trial is the exclusion of the testimony of John thorities cited.

C. S. Harrison, a witness offered by the apThe eleventh reason assigned for a new pellant. One of the paragraphs of the comtrial is that the court erred in permitting the plaint charged that the indorsement on the appellee John Steele to testify as a witness note in controversy was a forgery. A witover the objection of the appellant. We do ness was introduced as an expert, and the not think that the court erred in allowing appellant offered to prove by him that the inthe witness to testify. Section 498, Rev. St. dorsement on the note was not in the same 1881, reads as follows: "In suits or proceed- handwriting as the signature to what purings in which an executor or administrator ported to be, and was claimed to be, the will is a party, involving matters which occurred of the testator. during the life-time of the decedent, where a It is well settled by our own decisions that judgment or allowance may be made or ren- testimony of this character is only competent dered for or against the estate represented by where the comparison to be instituted is besuch executor or administrator, any person tween the writing in question and another who is a necessary party to the issue or rec- writing, which is admitted to be in the hand ord, whose interest is adverse to such estate, of the person whose instrument the writing in shall not be a competent witness as to such question is claimed to be. Chance v. Gravel matters against such estate." Under this Road Co., 32 Ind. 472; Burdick v. Hunt, 43 statutory provision two facts must co-exist Ind. 381; Huston v. Schindler, 46 Ind. 38. to render a person incompetent to testify as The paper purporting to be the will of the a witness against the executor or administra- testator was not admitted to be one that had tor. He or she must be a necessary party to been executed by him, or to which he had the issue or record, and his or her interest placed his signature. must be adverse to the estate. In the case The twelfth and thirteenth causes for a under consideration neither of these facts ex- new trial relate to the admission of certain isted. The note and mortgage in question testimony given by the witness, Marion had been assigned by the decedent to Samuel Steele. The evidence related to a transaction Steele, Jr., and this was an action to set aside between the appellant Franklin Steele and the transfer, and have the note and mortgage one Ebenezer Steele, which resulted in a declared to be assets belonging to the estate. conveyance by Ebenezer to Franklin of 520 John Steele was claiming no interest in the acres of land. The objection is that this note or mortgage, and, under the facts alleged transaction took place in the absence of the in the complaint, he held no interest therein. testator, and that the estate was not, thereThe whole controversy was one between Sam-fore, bound by the evidence. The testimony, uel Steele, Jr., his guardian, Franklin Steele, as given, was not as to a conversation beand the appellant. The matters involved tween these parties, but as to what was said could have been fully, completely, and finally and done as a transaction. Prior to giving determined as well without as with John the testimony objected to, the said witness Steele as a party to the action. It is true the had testitied, in substance, that some time in complaint charged a fraud and a conspiracy, the month of December, 1881, a few months and charged John Steele with being a party before his death, his Uncle Samuel, the dethereto, but only in case of a destruction of cedent, had expressed a desire to talk with the note was a judgment asked against him, him in relation to his (said Samuel's) propand during the progress of the case, and be- erty, and the disposition of the same; and fore he was sworn and testified as a witness, that he then had a conversation with him in the note and mortgage were produced and regard to his business and the disposition of placed in the custody of the court.

his property, in the course of which he (said It further appears in the record that the Samuel) told him that he was thinking of decedent died testate, and that the appellee fixing up his business affairs, and that he inJohn Steele was one of the residuary legatees. tended to distribute the remainder of his propTherefore, if the transfer of the note and erty during that winter and the next spring. mortgage was upheld by the judgment of the That he also stated in that conversation that court, his interest in the estate would be his (the witness') brother Frank (the appellee greatly reduced. His interest, therefore, was Franklin) held a mortgage on part of his (the not adverse to the estate, but in accord with witness') Uncle Eb's land, (Uncle Eb being it. “The term .party,' as used in this state the brother of the decedent;) and that he ute, must be held to mean a party to the is- (Samuel) also held a mortgage on the same sue, and not merely a party to the record. property, and that the same had been mortIf merely a party to the record, it must ap- gaged to a life insurance company and sold, pear that he had some interest in the result and that Frank had taken in the certificate of the suit in common with the party calling of sale to save himself; and that he also said

Spencer v. Robbins, 106 Ind. 580, 5 in that conversation that Frank would have N. E. Rep. 726. See Martin v. Martin, 118 to foreclose his mortgage or get an amicable Ind. 227, 20 N. E. Rep. 763; Starret v. Burk-settlement out of Uncle Eb some way. The

him."

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