Appellants take the position that the five judgments referred to in the pleadings are void as judgments; that they only have the effect of allowances against the guardianship, and that when the ward died and the guardianship was ended, the allowances were extinguished; that no personal judgment could be rendered against the ward, and that the validity of the notes upon which the judgments were rendered is in question in this proceeding, so that interrog-ward was of unsound mind. The suits were atories relating to the validity of such obligations and the circumstances of their creation are pertinent.

(144 N.E.)

[3] Appellants contend that service of pro- held in the above case that as to residents cess by reading to the guardian, as provided within the state, the state had jurisdiction by the statute, and as in fact was done in to subject them to her judicial power; but the suits here involved, only constituted con- this was not so as to nonresidents; that as structive notice, and that no personal judg- to residents, the state had power to determent could be rendered against the ward up-mine how they should be notified while on that kind of notice.

Section 399, Burns' 1914, provides that no personal judgment shall be rendered against a defendant constructively summoned. Appellants are in error in viewing a summons against an insane ward, served by reading to his guardian, as constructive service, within the purview of the above statute.

Sections 320, 322, and 323, Burns' 1914, provide for constructive service of process, which consists of two forms, either notice by publication to nonresidents or persons absent or concealing themselves, or personal notice outside of the state, which shall have the effect of notice by publication. It is clear that section 399, Burns' 1914, prohibiting a personal judgment upon constructive notice, refers to notice given in one of the above ways.

Section 318, Burns' 1914, provides for what is called personal service. It provides for service either personally upon the defendant, or by leaving a copy at his usual and last place of residence, and then provides that

"Process against persons of unsound mind shall be served upon the guardian of such persons, if there be a guardian."

within the state, and that persons so notified were regarded as personally and not constructively summoned. It was therefore held that a personal judgment was valid although no actual notice was had, if the statute was complied with.

As to the power of the state to prescribe the manner of service of process, other than by actual personal notice, upon residents within the state and authorize personal judgments thereon, see Beard v. Beard (1863) 21 Ind. 321; Freeman on Judgments (4th Ed.) vol. 1, § 127; Black on Judgments, vol. 1, § 277; note in 35 L. R. A. (N. S.) 292; note in 50 L. R. A. page 585.

[4] The conclusion from the above, and many other authorities, is that a court cannot acquire jurisdiction by constructive or substituted service, to render a personal judgment against a nonresident who does not appear, but that as to residents who are within the state the Legislature may authorize personal judgments upon proper substituted service.

It was expressly recognized by the United States Supreme Court that service of process upon a guardian may be sufficient to give a state court jurisdiction to render a personal judgment against the ward. New York L. Ins. Co. v. Bangs (1880) 103 U. S. 435, 26 L. Ed. 580.

Section 399, supra, does not have reference to a summons served in the manner specified in section 318, supra. It cannot be We have a statute which makes it the said that it is only when the summons is duty of the guardian of a minor to appear served by reading to the defendant person- for and defend all suits against the ward. ally that there has been personal service, | Section 3068, Burns' 1914. The statute preand in all other cases that it is constructive scribes the same powers and duties for service within the meaning of the statute, guardians of insane persons. Section 3107, because it has been held in this state that Burns' 1914. As we have seen, the statute personal service refers to service other than also provides how process shall be served by publication, or, what is its equivalent, upon such ward. service without the state. Dunkle v. Elston (1880) 71 Ind. 585. It has been repeatedly held in this state that service of process by leaving at the last and usual place of residence of the defendant is not constructive service, although the defendant did not receive the notice. Sturgis v. Fay (1861) 16 Ind. 429, 79 Am. Dec. 440; Pigg v. Pigg (1873) 43 Ind. 117; Dunkle v. Elston (1880) 71 Ind. 585.

"It has been held that service by copy is not constructive, but actual, service and is conclusive between the parties." Meyer v. Wilson (1906) 166 Ind. 651, 76 N. E. 748.

In the case of Sturgis v. Fay, supra, it was claimed that notice by copy, which was not received by the defendant, was not personal but constructive service, and that therefore, under the statute above referred to, no personal judgment could be rendered. It was

The record in this case shows that not only was the summons served upon said ward in the manner provided in the statute, but that his guardian appeared for him and filed answers of general denial, non est factum, want of consideration, and duress; that the issues thus formed were submitted to the court and the judgments involved were rendered after a hearing thereof. These judgments were binding upon said ward.

See Makepeace v. Bronnenberg (1896) 146 Ind. 243, 248, 45 N. E. 336. It follows that said judgments constituted an adjudication of the validity of the notes upon which said judgments were predicated, and appellants could not litigate the question of their validity in this action. therefore no error in striking out interrogatories which were only pertinent if appellants could litigate the validity of the original notes.

There was

[5] Assignment of error No. 7 challenges suffice to say that it was appellants' theory, the action of the court in dismissing the and they offered evidence for the purpose of cross-complaint as to Alfred Hogston. Al-proving, that when the several suits were fred Hogston was not a proper party to the brought which finally resulted in the judgcross-complaint, which sought to set aside ments in dispute, the guardian of said ward the five judgments heretofore referred to. employed an attorney to defend said actions, He was not a party to any of said judg- and that through the influence and connivments and could have no interest in any ac- ance of Alfred Hogston and the plaintiffs in tion contesting their validity. The cross said suits said attorney and the guardian complaint alleged that said judgments were made no defense thereto, and that the acobtained by fraud and that he participated tions of said parties amounted to fraud. in and aided said fraud, but no relief was asked or could be obtained against him in said cross-action. He had no interest in the controversy adverse to the cross-complain-flicting as to whether the attorneys emants and was not a necessary party to the complete determination of the questions involved. Section 269, Burns' 1914.

[6] Since the pleading not only was not sufficient as to him, but could not by amendment have stated a cause of action against him, no harm was done appellants in dismissing the same as to him. Wilson v. Tevis (1916) 184 Ind. 712, 111 N. E. 181.

[7] Assignment of error No. 8 challenges the action of the court in dismissing the cross-complaint as to the Citizens' Trust & Savings Company. The only allegation relating to said company was that a false or spurious note purporting to have been signed by the decedent had been sold by Richard A. Hogston to said company. It is not alleged that said note had been filed or allowed as a claim against said estate, and the holder of a claim which had not been allowed would certainly not be a proper party to the cross-complaint. If the holder of a note which is invalid for any reason files it as a claim and undertakes to enforce it, the statute makes ample provision for litigating the question of its validity. Section 2844, Burns' 1914. There was no error in sustaining the motion to dismiss as to said trust company.

Assignment of error No. 9 challenges the action of the court in dismissing the crosscomplaint as to Thos. D. Barr. The only allegation as to said Barr is that Alfred Hogston claimed to have sold a note signed by the decedent to said Barr. For the reasons given under assignment No. 8, above, there was no error in dismissing the crosscomplaint as to said Barr.

It appears from the evidence that these appellants employed other attorneys to defend said actions. The evidence is then con

ployed by appellants withdrew from the cases because the guardian would not agree to pay for their services or because the guardian and his attorney would not permit them to appear.

The guardian filed answers in said suits, including pleas of non est factum, want of consideration, and duress. The evidence is conflicting as to how much effort said guardian and his attorney made to secure evidence to sustain the answers filed, but there is evidence from which the court could well find that a good-faith defense was made. There was substantial evidence tending to support the finding. There was also evidence, which, if believed by the trial court, would have required a different finding. Under such circumstances, this court cannot disturb the judgment.

The judgment is affirmed.

EWBANK, C. J., not participating.

SEYMOUR WATER CO. v. LEBLINE. (No. 24672.)

(Supreme Court of Indiana. May 15, 1924.)

I. Waters and water courses 179(1)-Complaint for flooding land held good as against demurrer.

General allegations of complaint for flooding of plaintiff's land caused by dam that plaintiff was owner of land, and that flow of water had been obstructed unlawfully, and without right, to plaintiff's damage, were sufficient as against demurrer.

[8] Assignment of error No. 10 challenges the action of the court in overruling the motion for a new trial. The only proposition or statement of any point in appellants' brief relating to this assignment is proposition No. 16 in the brief, that the finding of the court is not sustained by sufficient evidence. Under this proposition appellants say that the theory of the partial answer and the crosscomplaint is that the five judgments were obtained by fraud, and they claim that the evidence showed such fraud. Without taking the space to set out the evidence, it will For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. Appeal and error 960 (1) Requiring plaintiff to furnish abstract of title discretionary with trial court.

In action for flooding lands overruling motion to require plaintiff to file abstract of title held not cause for reversal, in absence of abuse of discretion.

3. Pleading 367 (6)—Refusal to require abstract of title held not abuse of discretion.

In action for flooding land, refusal of trial court to require plaintiff to furnish abstract of title held not abuse of discretion, it not ap

(144 N.E.)

pearing that there was any doubt as to source | tion to make specific by setting out therein of plaintiff's title, nor that defendant was ig- facts on which each averment is based. norant of any facts which would have been 12. Witnesses shown by abstract.

4. Pleading 194(5) Overruling demurrer to argumentative denial not error.

An argumentative denial is denial of what is alleged in pleading to which it is addressed, and overruling demurrer to it is not error.

5. Easements 32-When easement extinguished by occupation by owner of servient estate stated.

Where easement was created by express written contract, lapse of time and occupation by owner of servient fee will not extinguish it, unless there was an absolute denial of the right, and occupation was so adverse and hostile that owner could have maintained action for obstructing enjoyment.

6. Easements 30(1)-Intention to abandon
necessary element of abandonment.
Intention to abandon and put an end to
easement is necessary element of abandonment.
7. Waters and water courses 179(1)-
Pleading setting up extinguishment by non-
user of easement to maintain dam held de-
murrable.

In action for flooding plaintiff's land by
defendant's dam, in which defendant alleged
an easement to maintain dam, demurrer to re-
ply alleging nonuser of dam for many years,
but not averring intention to abandon easement,
should have been sustained.
8. Waters and water courses

165-Farming | land held not adverse possession against right of flowage.

Where defendants having easement to maintain dam and thereby overflow plaintiff's land did not exercise right for many years, plaintiff's farming his land and raising crops thereon held not such adverse possession as would set limitations running against right of flowage.

9. Adverse possession

44-Rule stated as to necessity that possession be continuous for prescribed period.

Adverse possession, to ripen into title, must be such as would have exposed possessor to action because of what was done by him at any and all times during his 20 years' possession.

10. Pleading 406 (5)—General averment of adverse possession held good in absence of motion to make specific.

In absence of motion to make more specific, general averment that continuously for 42 years plaintiff had actual, open, notorious, exclusive, and adverse possession of land in which defendants claimed right of flowage free from defendants' use and right sufficiently pleaded title by adverse possession to withstand demurrer, and was not limited in its scope by averment that plaintiff had farmed land.

11. Pleading 367 (1)—Remedy to confine effect of general averments to particular facts also stated is by motion to make specific. Remedy to confine effect of general averments to particular facts also stated is by mo

240(5)-Question held objec

tionable as leading and suggestive.

Party cannot cause statement of what he assumes to be facts in issue to be prepared and then testify to them by affirmative answer to question whether statement is correct; question being objectionable as leading and suggestive.

13. Witnesses 240 (2) Leading questions on formal matters and facts not seriously disputed within trial court's discretion.

Extent to which leading questions may be permitted with relation to formal matters and facts not seriously in dispute is controlled by trial court's discretion.

14. Evidence 151(1)-Testimony by president as to intent of corporation admissible.

Testimony by president of water corporation as to its intent with reference to abandonment of dam held admissible.

15. Evidence 151(1)—Witness with knowledge of intent may testify thereto as a fact.

When intent with which an act is done is material, witness having knowledge thereof may testify to such intent as a fact. 16. Tria! 255(1)-Omission to give unrequested instruction seldom cause for reversal. tion is seldom cause for reversal. Mere omission to give unrequested instruc

17. Waters and water courses 165-Right to maintain dam held to pass as appurtenant to mill site without special mention in deed.

If owners of mill site through whom defendants derived title acquired right to maintain dam in connection therewith, such right passed with conveyance of mill site as appurtenance without special mention in deed.

18. Trial 244 (3)-Instruction that certain deed conveyed no greater interest than grantor had held erroneous as in disparagement thereof.

Where defendant claimed right to dam as appurtenant to its ownership of mill site, instruction which singled out intermediate conveyance of mill site in which dam was not mentioned, saying that it conveyed no greater interest than grantor had, held misleading as disparagement of such document.

19. Trial 244 (3)—Instruction held erroneous as singling out evidence and disparaging it.

An instruction on the effect of a particular deed on the issue of abandonment of a water right held erroneous as singling it out and disparaging it.

20. Navigable waters 1 (2)-Legislative acts held not to make river navigable stream so that bed did not vest in riparian owners.

Legislative acts, declaring Driftwood fork of White river to be a public highway, held not to make it such navigable stream at dam site involved as that title to river bed never vested in landowners on either side to whom measured area outside meander lines was conveyed by United States.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Action by Charles Lebline against the Sey-plained of. Such a motion is addressed to mour Water Company. Judgment for plaintiff, and defendant appeals. Transferred from the Appellate Court under section 1394, Burns' Ann. St. 1914 (section 10, c. 247, Acts 1901, p. 567). Reversed, with directions. Superseding opinion of 138 N. E. 787. Montgomery & Montgomery, of Seymour, for appellant.

[3] It does not appear that there was any doubt as to the source of plaintiff's title, nor that appellant was ignorant of any facts which would have been shown by an abstract. What meander lines were run to EWBANK, C. J. Appellee, the plaintiff make that section a "fractional section," conbelow, recovered a verdict and judgment | taining less than 640 acres, when the land against appellant for $2,011.38, as damages was originally surveyed by the United States for the construction of a dam in the "Drift-government preparatory to selling it to setwood" or east fork of White river, at Rock- tlers, even if shown to be pertinent as havford, near Seymour, Ind., by which the river ing relation to any part of plaintiff's farm, was caused to overflow some of his land. would not be shown by an abstract of title. Appellant's demurrers to the complaint, and to each of several paragraphs of reply, were overruled, as was also its motion for a new trial, and appellant excepted to each ruling, and has challenged each of them by a proper assignment of errors.