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(144 N.E.) This was error. The intention with which, in 1874 a judgment was recovered against the corporation acted when it delayed re- her, and an execution thereon was issued building the dam that had washed out, if on which an undivided one-third of the land it did so, was material on the issue of aban- was sold by the sheriff in December of that donment. And when the intent with which year, and that in 1877, pursuant to such sale an act was done is material a witness hav- and purchase, the sheriff executed a deed ing knowledge thereof may testify to such conveying such lands to one of appellant's intent as a fact. Pittsburgh, etc., R. Co. v. remote grantors through whom it derived Noftsger, 148 Ind. 101, 106, 47 N. E. 332; title to the mill site. Counsel for appellant Heap v. Parrish, 104 Ind. 36, 40, 3 N. E. 549; state that this judgment was recovered upon Sedgwick v. Tucker, 90 Ind. 271, 281; Bid foreclosure of a mortgage for unpaid puringer v. Bishop, 76 Ind. 244, 255. The fact chase money, but that fact is not shown by that this witness had been president of the the evidence. A son of Anna Rockstroh was corporation only three years, and that it called by plaintiff as a witness, and testihad not been shown in what capacity he was fied that in 1875 the mill that stood on said "connected with" it during the rest of the real estate burned down, and was not rebuilt, period of 30 years inquired about, went to and that his mother then "moved away to the weight of his proposed testimony, rath- get out of the trouble," and went to Texas, er than its competency.

from whence she never returned. The court [16] Appellant complains because the court, gave an instruction stating that any sherwhile instructing the jury that the burden iff's deed purporting to convey the interest was upon the plaintiff to prove the material of Anna Rockstroh in any real estate to such allegations of the complaint before he could person could not convey a greater interest recover, and was upon the defendant to or right therein than she had owned. As prove the material allegations of at least one applied to the issue of alleged abandonment paragraph of affirmative answer before it of the water right and to the evidence set could avail itself of the defense pleaded in out above, this instruction was misleading. any such paragraph, failed to read the plead. Nothing which Anna Rockstroh might do toings to the jury or to give an instruction ward abandoning the easement in 1875, after stating what were the material averments the lands and appurtenances had been sold of any of them. Appellant should have pre-on execution in 1874, could affect the title pared a proper instruction and have pre-conveyed by the sheriff's deed to the pursented it with a request that it be given. chaser at such sale, executed after the year The mere omission to give an instruction for redemption had expired. And it was erthat was not asked is seldom, if ever, cause ror in this manner to single out and disparfor reversing a judgment.

age that particular item of evidence. Shenk[17, 18) Instruction No. 17 correctly told the enberger v. State, 154 Ind. 630, 640, 57 N. jury that, if the owners of the mill site E. 519. through whom appellant derived title ac [20] We do not think the acts of the Leg. quired the right to maintain a dam in con- islature of Indiana cited by appellant which nection therewith, such right would pass in declared the Driftwood fork of White river any conveyance of the mill site as an appurte to be a public highway at this point make it Dance, without special mention in the deed. such a navigable stream as that title to the Eshelman v. Snyder, 82 Ind. 498, 501, 502; river bed never vested in the owners of the State v. Suttle, 115 N. O. 784, 788, 20 S. E. 725. lands on either side of the river to whom the Instruction No. 5 was inconsistent with the measured area outside of the meandered law as so declared, in that it singled out an lines was conveyed by the United States if intermediate conveyance of the mill site in title would so vest except for those statutes. which the dam was not mentioned, concern- Neither was there any attempt to prove ing which it told the jury that the deed from where those meandered lines were run, nor the grantee named in such deed "conveyed whether the overflowed lands were within or no greater interest or right in said land from outside of them. said grantee than he himself had." Al

Other questions discussed by counsel may though not materially inaccurate as an ab- not arise upon a retrial of the case. stract proposition of law, this was mislead The judgment is reversed, with directions ing as a disparagement of the particular to sustain the demurrer to each second paraitem of documentary evidence referred to.

graph of reply to each of the fourth and [19] There was evidence that in 1870 one sixth paragraphs of answer, and for furAnna Rockstroh received a conveyance for ther proceedings not inconsistent with this and became the owner of an undivided in- opinion. terest in the mill site, “with all improvements and appartenances thereon," and that MYERS, J., absent.

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and there being no evidence tending to show BAILEY V. STATE. (No. 24476.) that the possession of said liquor was law

ful, or that it was kept for any lawful pur(Supreme Court of Indiana. June 4, 1924.)

pose, then the court could find from such 1. Intoxicating liquors Om236(9)

Unlawful facts that appellant was engaged in the sale possession of more than gallon intoxicating of such liquors as a beverage. Sections 28, liquor sufficient to sustain finding of de- 35, Acts 1917, p. 31; Boyd v. State (Ind. fendant's intent to sell as beverage.

Sup.) 143 N. E. 355. Proof that more than a gallon of intoxi It follows that there was evidence tendcating liquor was found in room rented and ing to prove all necessary elements of the occupied by accused, in the absence of evi- crime charged, and, as we cannot weigh condence tending to show that such possession was flicting eridence, we cannot disturb the findlawful, is sufficient, under Acts 1917, c. 4, 8S 28, 35, to support a finding that accused was

ing. engaged in sale of such liquors as a beverage.

Judgment affirmed.

Appeal from Criminal Court, Marion County; Frank Symms, Special Judge. Charles Bailey was convicted of maintain

re MI

-ER. (No. 24084.) ing a common nuisance, and he appeals. Affirmed.

(Supreme Court of Indiana. June 3, 1924.) Clyde C. Karrer and W. W. Hyde, both of Indianapolis, for appellant.

I, Habeas corpus cm1 13(12)-Sheriff proper U. S. Lesh, Atty. Gen., and Mrs. Edward party on appeal where writ directed against Franklin White, Deputy Atty. Gen., for the

him below. State.

Where habeas corpus was brought against

the sheriff who claimed the right by virtue of GAUSE, J. Appellant was charged in an

process to imprison petitioner, such officer is a affidavit containing several counts, with vari. proper party on appeal. ous violations of the liquor law. Upon a 2. Appeal and error em327(2)—Where all partrial by the court he was found guilty un

ties to judgment below not before court, der the count which charged him with main

cause cannot be determined. taining a common nuisance, as defined by

Under rule 6, where all parties to the judgsection 8356t, Burns' Supp. 1921.

ment appealed from are not before the ApSaid section makes it a misdemeanor to pellate Court, the cause cannot be determined. maintain or assist in maintaining any room, etc., where intoxicating liquor is sold, man

Appeal from Circuit Court, Wabash Counufactured, bartered, or given away in viola- ty; Nelson G. Hunter, Judge. tion of law, or to maintain any place where Habeas Corpus by Ben Miller for release such liquor is kept for sale, barter, or deliv- in custody. From a judgment denying the ery, and all intoxicating liquor kept in and writ, the petitioner appeals. Transferred used in maintaining such a place is declared from appellate court under section 1397, a common nuisance. The only ruling as- Burns' Ann. St. 1914. Appeal dismissed. signed as error is in the overruling of the

Q. A. Milliner, of Wabash, for appellant. ·motion for a new trial. The only contention of appellant, under such assignment, is that the evidence is not sufficient to sustain the

GAUSE, J. The petitioner, Ben Miller, court's finding. There was evidence from Aled his petition in the court below alleging which the court could find that appellant that he was unlawfully restrained of his libhad rented and was occupying a room at 1117 erty by Elmer Vrooman, the sheriff of WaNorth West street, in the city of Indian- bash county, by virtue of a pretended judg. apolis; that during such time the police, by ment of the city court of Wabash, Ind., and virtue of a warrant, searched said premises said petition then sets out wherein it is and found therein 35 gallons of white mule claimed said restraint is illegal. whisky in 5-gallon jugs, 8 pints of whisky,

A writ was issued directed to said Elmer 18 empty 5-gallon jugs, 100 empty bottles, 5 Vrooman to produce said petitioner in court empty 1-gallon jugs, 3 funnels, 1 basket of at a designated time. Said sheriff filed a corks, and a lot of broken glass jugs. The return to said writ, setting forth his alleged appellant testified that he had never rented authority for holding the petitioner. Upon the room in question or been in possession a trial there was a finding and judgment of the same, but upon this issue of fact the against the petitioner and that the writ be court found against him.

denied. From such judgment said petitioner Since more than a gallon of intoxicating prosecutes this appeal. liquor was found in such room, and there be In this appeal said petitioner has not ing evidence which justified the court in find named any person as appellee. The title, in ing that appellant was in possession thereof, his assignment of errors, is as follows: "In

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(144 N.E.) the matter of the petition of Ben Miller for Appeal from Superior Court, Madison & writ of habeas corpus."

County; Willis S. Ellis, Judge. [1] The sheriff, who was alleged to have

Action by Katie J. Johnson against Edwin the custody of the petitioner, was charged J. Miller. Judgment for plaintiff, and defendwith illegally restraining him of his liberty. ant appeals. Affirmed. The action was brought to remedy this al. leged wrong. Such officer claimed the right, Arthur C. Call and Diven, Diven & Campby virtue of process, to imprison the peti- bell, all of Anderson, for appellant. tioner. In such a case the officer was a par

Ellison & Neff, of Anderson, for appellee. ty. He is a proper party on appeal. Nichols v. Cornelius (1856) 7 Ind. 611; Yudkin v.

BATMAN, J. Action by appellee against Gates, 60 Conn, 426, 22 Atl. 776; State ex appellant to recover damages for personal rel. v. Huegin, 110 Wis. 189, 85 N. W. 1046, injuries, alleged to have been caused by the 62 L. R. A. 700.

negligence of an employee of the former, re(2) Rule six of this court requires that the sulting in a collision between a truck which assignment of errors shall contain the full he was driving on a public highway and a names of all parties to the judgment. All the parties to the judgment appealed from complaint is in a single paragraph, and the

buggy in which appellee was riding. The not being before the court, the cause cannot

answer thereto is a general denial. The be determined. Big Four B. & L. Ass'n v.

cause was submitted to a jury for trial, reOlcott (1896) 146 Ind. 176, 45 N. E. 64; Ew- sulting in a verdict of $7,500, on which a bank's Manual, 88 126, 149.

judgment of $5,000 was rendered, after a The appeal is dismissed.

remittitur of all in excess of said amount had been entered. Appellant filed a motion for a new trial, which was overruled, and

this action of the court is made the basis of MILLER V. JOHNSON. (No. 11875.) the only error assigned on appeal.

[1, 2] Appellant's first contention is based (Appellate Court of Indiana, Division No. 1. June 3, 1924.)

on the ground of newly discovered evidence,

which is supported by the affidavits of him1. Now trial w151_Successful party may self and three persons upon whom he relies

file counter affidavits to motion for new trial therefor. Appellee filed counter affidavits of for newly discovered evidence.

herself and twelve other persons prior to the Where defendant moves for new trial for court's ruling on appellant's motion for a new newly discovered evidence supported by affi- trial. In filing such counter affidavits appeldavits, plaintiff may file counter affida vits prior lee was clearly within her rights, and it was to court's ruling on the motion, and it is the duty of the court to consider such counter the duty of the court to consider the same in affidavits.

determining whether a new trial should be 2. Appeal and error ema761-Failure to state granted on the ground of newly discovered

evidence. First National Bank v. Gibbons proposition or points in a brief heid waiver of question as to amount of damages.

(1893) 7 Ind. App. 629, 35 N. E. 31; ThornDefendant in a personal injury action burg v. Buck (1895) 13 Ind. App. 446, 41 N. E. waived the question as to the amount of dam- 85; Hammond, etc., R. Co. v. Spyzchalski ages by failing to state any proposition or (1896) 17 Ind. App. 7, 46 N. E. 47. The affpoint thereon in his brief.

davit of appellant relates only to his diligence 3. Highways Bew184(4)-Instruction in per- to discover evidence before the trial, and to

sonal injury case held not erroneous as not facts which he is informed are within the supported by evidence.

knowledge of said three other persons, whose In an action for personal injuries sus

affidavits he filed with his motion for a new tained in a collision between plaintiff's buggy trial. The affidavits of said three other per. and defendant's truck, instruction permitting sons are confined to statements as to appelrecovery, if defendant operated his truck at a lee's physical condition before and after the great or high rate of speed, held not erroneous injury in question. In so far as they relate as not supported by evidence.

to her physical condition after the injury 4. Appeal and error Cm758 (3)-Instruction they are so fully met by the counter affiwill not be considered, where error therein davits filed by appellee as to render them not indicated in brief.

ineffective as a basis for a new trial on the The Appellate Court will not consider an ground under consideration. And, in so far instruction challenged as erroneous, where appellant has failed to point out in his brief as they relate to her physical condition, either wherein it is erroneous.

before or after her injury, the facts stated, if 5. Trial m260(1) - Instructions

true, would only tend to reduce the amount

covered properly refused.

of appellee's damages—a question which apIt is not error to refuse requested instruc- pellant has waived by failing to state any tions, the subject-matter of which has been proposition or point thereon in his brief. Insubstantially covered by other instructions. dianapolis, etc., R. Co. v. Sample (1914) 58

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Ind. App. 461, 108 N. E. 400; Sovereign Camp, of which there was evidence, but there was etc., v. Latham (1915) 59 Ind. App. 290, 107 no error in refusing to give the same as its N. E. 749; Scottish, etc., Ins. Co. v. B. E. subject-matter was substantially covered by Linkenhelt & Co. (1919) 70 Ind. App. 324, 121 instructions Nos. 21 and 23 given by the court N. E. 373; Kokomo, etc., Co. v. Ramseyer on its own motion. Van Spanje v. Hostet(Ind. App. 1920) 125 N. E. 580. Appellee has tler (1918) 68 Ind. App. 518, 119 N. E. 725. challenged the showing made by appellant on Failing to find that the court erred in overthe question of diligence in seeking informa- ruling appellant's motion for a new trial, the tion, prior to the trial, on the subjects covered judgment is affirmed. by the affidavits, but we are not required to consider such question, in view of what we have already stated. We conclude that the court did not err in overruling appellant's motion for a new trial on the ground of new- JELICIC V. VERMILLION COAL CO. ly discovered evidence.

(No. 11900.) [3] The only remaining errors which ap pellant has attempted to present, relate to the (Appellate Court of Indiana, Division No. 1. action of the court in giving and refusing to

May 22, 1924.) give certain instructions. Appellee has chal 1. Master and servant 388—Widows conclu. lenged the sufficiency of appellant's brief to sively presumed dependent within Compensa. present any such questions, and her conten- tion Act. tions in this regard have much merit How- Under Acts 1919, p. 165, dividing widows ever, after much hesitation, we have decided entitled to compensation into three classes, to consider certain of the alleged errors, with those living with their husbands at the time reference to the instructions, which appel- of their deaths, those not living with them, but lant claims to have presented. Complaint is dependent on them, and those not living with made of the action of the court in giving in theless entitled by virtue of law to support

them and not dependent on them, but neverstruction No. 2 on its own motion, in which from them, widows falling within the first and the jury was informed that the complaint al- third classes are conclusively presumed to be leges as an act of negligence “that the defend wholly dependent, while as to those in the ant operated his truck at a great or high rate second class no such presumption arises. of speed,” and that she could recover on proof 2. Master and servant 403-Widow claiming of such negligence alone, if she had otherwise

compensation has burden of proving hus. established her cause of action. Appellant band's liability to support her. bases his contention that this instruction is A widow entitled to compensation because erroneous on a claim that there is no evidence the law imposed the duty on her deceased hus. that his truck was operated as alleged. The band to support her has the burden of proving evidence does not warrant such a claim, in facts warranting the conclusion of such liabila view of the direct testimony in that regard,

ity. and the inference to be drawn from the cir- 3. Master and servant Om388—Husband held cumstance, which the evidence tends to es- not liable to support wife claiming compensatablish, that the driver was unable to stop

tion for death. the truck in less than 75 feet from the place

A showing that the widow of an employee of collision, although he put on the emer- killed in August, 1921, had been living apart gency brake with all his power just before it from him in a foreign country since January,

1914, had received $1,650 from bim prior to occurred. There was no error in giving said 1917, was not dependent on him and had not instruction.

beard from him since April, 1921, held insuffi[4] What we have said as to said instruc- cient to warrant the conclusion that such detion No. 2 applies with equal force to in- ceased husband was legally liable to her for structions Nos. 14, 20, and 22, given by the support. court on its own motion, and of which com- 4. Husband and wife 4-Husband not liaplaint is made on account of the reference to ble for support of wife who has abandoned speed in each of them. Instruction No. 19 giv- or voluntarily without justification lives apart. en by the court on its own motion, is also A husband is not liable for the support of a challenged, but, as appellant has failed to wife who had abandoned him or voluntarily and point out in his brief wherein it is erroneous, without justification lives apart. we are not required to give the same any con- 5. Pleading m63—Party claiming statutory sideration.

right must bring himself within statute. [5] Appellant complains of the action of the A party claiming a right conferred by stat. court in refusing to give certain instructions ute must bring himself within its provisions. requested by him, but, as he has not attempt. 6. Appeal and error Em996–Findings based on ed to present any question, except as to No.

reasonable inferences must be accepted as 1, the others will not be considered. Said in

true. struction contains a definition of an acci.

Though facts found appear to be based on dent, and applies the same to certain facts / inferences, where same are reasonable, they

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(144 N.E.) must be accepted as true on appeal, though Appellant's assignment of error contains contrary inferences may be equally reasonable 11 specifications, but all are covered by the and such as the appellate court would have first, as it presents the sufficiency of the facts been more inclined to draw.

found to sustain the award and the sufficien7. Evidence 75—Widow's failure to explain cy of the evidence to sustain the finding of

separation from husband and his failure to facts. Acts 1917, p. 154. We shall first consupport may be considered on question of his sider the sufficiency of the facts found to susliability for support.

tain the award, denying compensation to apFailure of a widow claiming compensation pellant, as the widow of the deceased emto explain long-continued absence of her hus-ployee, Vide Jelicic. Under the law as it has band, his failure to support her during a part existed since 1919, three classes of widows of of that period, and the absence of communica- deceased employees are entitled to receive tion between them for nearly three months ceding his death, held a circumstance properly compensation, as dependents, where facts are considered in determining the question of his found showing liability, viz.: (1) Those living legal liability to support her.

with their husbands at the time of their

deaths; (2) those not living with their busAppeal from Industrial Board.

bands at the time of their deaths, but de

pendent upon them for support; (3) those Proceeding under the Workmen's Compen- not living with their husbands at the time of sation Act by Joka Jelicic, by Dr. Bojidar their deaths, and not dependent upon them Pouritch, Consul of the Kingdom of the for support, but nevertheless were entitled to Serbs, Croats and Slivenes, attorney in fact, support from their husbands at the time of against the Vermillion Coal Company. From their deaths, by virtue of the laws of the denial of compensation, claimant appeals. state. Acts 1919, p. 165; Collwell v. Bedford Affirmed.

Stone, etc., Co. (1920) 73 Ind. App. 344, 126 Defrees, Buckingham & Eaton, of Chicago, N. E. 439. Ill., for appellant.

[1] If a widow falls within either said Hays & Hays, A. C. Owens, W. P. Stratton, | first or third class, she is conclusively preJ. S. Taylor, W. H. Bridwell, and G. W. Buff, sumed to be wholly dependent upon her de all of Sullivan, for appellee.

ceased husband for support; but if she falls within said second class, there is no such

presumption, and hence the question of deBATMAN, J. Appellant seeks to reverse pendency must be determined in accordance an award in which she was denied compen- with the fact, as the fact may be at the time sation against appellee, based on the follow- of such death, as provided in said last-named ing finding of facts:

act. In the instant case it is clearly disclosed "And the full board, having heard the argu-| by the finding of facts that appellant does ment of counsel, having reviewed the evidence not fall within either said irst or second and being duly advised in the premises, finds class, as it is found that appellant was liv. that on July 20, 1921, one Vide Jelicic was in ing apart from her husband at the time of the employment of the defendant at an average his death, and that she was not dependent weekly wage of $24; that on said date the on him for her support. Therefore we are said Vide Jelicic received a personal injury by an accident arising out of and in the course only required to determine whether she falls of his employment, of which the defendant had within said third class, which is based on knowledge; that said injury resulted in the the italicized portion of the following provi. death of said Vide Jelicic on August 1, 1921, sion of section 38 of the Workmen's Compenof which the defendant had knowledge; that sation Act, as amended in 1919 : at the time of the injury and death of said Vide Jelicic, the said Vide Jelicic left surviv- presumed to be wholly dependent for support

"The following persons shall be conclusively ing him Joka Jelicic, his widow, and Djuka on a deceased employee: Jelicic, bis minor daughter, who were at said

(a) A wife upon her husband with whom time living in the Kingdom of the Serbs, Croats she is living at the time of his death, or upon and Slovenes; that the said Djuka Jelicic died whom the laws of the state impose the obligaon April 18, 1922; that the said Vide Jelicic tion of her support at such time. and his wife and daughter had been living apart (Our italics.) Acts 1919, p. 165. since January 23, 1914; that up to 1917 the said Vide Jelicic had sent to his wife, Joka Whether a wife is living with her husband Jelicic, the sum of $1,650; that the said Joka at the time of his death involves a conclusion Jelicic last heard of her husband, Vide Jelicic, of fact, but whether the laws of the state imon April 13, 1921; tbat, at the time of the pose an obligation upon him to support her injury and death of said Vide Jelicic, the said at such time involves a conclusion of law, Joka Jelicic was not dependent upon him for her support; that the injury and death of the as its determination requires an application said Vide Jelicic was not due to his willful mis- of abstract principles of law to the facts, as

Lagler V. Roch conduct or willful disobedience of any orders they are found to exist. of the defendant; that the defendant has paid (1914) 57 Ind. App. 79, 104 N. E. 111; Cable $100 of the burial expenses of the said Vide Co. v. McElhoe (1914) 58 Ind. App. 637, 108 Jelicic."

N. E. 790.
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