a party plaintiff until the 19th of October, I had fully repaid and recompensed the trust 1908; and that by reason thereof the cause of action was barred by the statute of limitations at the time of the filing of its application to be made a plaintiff. As a third defense the defendant averred that the original plaintiff had no interest in the cause of action subsequent to August 6, 1901; that on April 30, 1902, Healy, trustee, had paid over to his beneficiary, James Robinson, all moneys due the latter and had received an acquittance from him; that said trustee's duties had thereby become fully completed and ended, and that by reason thereof this cause of action had abated on August 6, 1901, and the plaintiff's duties and powers as trustee ceased on April 30, 1902; that the bonding company, with knowledge of these facts, had taken no steps to revive said cause of action prior to October 19, 1908. As a fourth defense defendant alleged that the bonding company was guilty of laches, and therefore should not be permitted to maintain its claim against the defendant.

The bonding company, on May 3, 1909, filed its reply to the defendant's amended answer, in which it set up the execution of the bond and the payment of the amount to the original plaintiff, trustee, on August 6, 1901, but that on said date, in consideration of said payment and by written agreement, there was assigned to the bonding company by Healy, trustee, said claim, and it had become subrogated to all the rights and claims which the trustee had or might have against the

defendant herein.

On the trial in the superior court judgment was entered upon the issues in favor of the defendant. In a proceeding in error in the Court of Appeals this judgment was reversed, and final judgment entered in favor of the bonding company for the sum of $2,208, with interest. This proceeding is brought to reverse the judgment of the Court of Appeals. Jelke, Clark & Forchheimer, of Cincinnati, for plaintiff in error. Healy, Ferris & McAvoy, of Cincinnati, for defendants in error.

estate for all loss on account of Santmeyer, that therefore no loss had been suffered by the trust, and that plaintiff had no interest, as trustee or otherwise, in the alleged cause of action. The reply to this answer was a general denial. Then, on October 19, 1908, the bonding company made its first appearance in the case by its application to be substituted as the plaintiff, in which application a copy of the receipt of Healy, trustee, delivered to it August 6, 1901, is set out, and in which it is stated that said bonding company "is hereby subrogated" by reason of said payment and settlement to all rights which the trustee may have against any person whomsoever on account of the wrongful acts of Santmeyer. This application was sustained, and the defendant bank thereafter filed its amended answer, in which it avers that at the time of the filing of the application by the bonding company its cause of action was barred by the statute of limitations.

[1, 2] Section 11241, General Code, requires that an action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections, which do not apply here. Defendant in error contends that section 11261, General Code, authorizes the action taken in this case. The pertinent portion of this section is as follows:

"Upon the disability of a party, the court may allow the action to continue by or against his representative, or successor in interest. On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him."

It is insisted that these provisions warranted the substitution of the bonding company at the time it was done and that the statute of limitations did not bar its right of action. The sections referred to should, of course, be construed together and effect given to both, When the suit was if this can be done. brought Healy, trustee, was the real party in interest. But the trust fund was fully paid to the beneficiary on April 30, 1902, and the So PER CURIAM. In our view the decisive estate finally settled and terminated. question in the case is whether the action by that after April 30, 1902, the original plaintiff the bonding company was barred by the stat-trustee could not "prosecute" or "continue" ute of limitations. It will be observed from the suit because there was no such trustee. the statement that the suit was commenced Legally the plaintiff trustee was dead. This by Healy, trustee, March 29, 1901. The unwas the situation on the record from April 30, 1902, till October 19, 1908, more than six years. And, moreover, it must be noted that the reply in the case denied the allegation in the answer of the bank that the trust estate had been fully recompensed and paid all loss it had sustained. On the issue thus made, and as it stood October 19, 1908, a trial would necessarily have resulted in favor of defendant bank after the disclosure of the exact situation.

disputed facts show that the bonding company on August 6, 1901, paid to Healy, trustee, the full amount due to the trust estate; that on April 30, 1902, he paid over to his beneficiary all money due him and filed his voucher for it in the probate court. The powers and duties of the trustee thereby became fully completed and ended. The amended petition was filed March 24, 1902, and included no reference to the bonding company or any payment by it. The answer of defendant was filed May 3, 1904, in the second defense of which it is averred that the

Surely the bonding company would not contend that during this term it was prosecuting or would have prosecuted the cause in the

ord disclosed that the same plaintiff was de- | ful act of conversion. Now, the bonding com. nying in effect that it had any right or inter-pany's claim arose substantially on the propest in the case. In Insurance Co. v. Carna- osition that, as the bank was a constructive han, 63 Ohio St. 258, 58 N. E. 805, suits were cotrustee for the beneficiary, it should have brought by a partnership to recover on poli-paid the value of the bonds into the trust escies of insurance the amount of loss by fire. The suit was brought in the partnership name and it was held that:

In this case the legal liability of the bank to the original plaintiff trustee arose from the averments in the amended petition that it had purchased the trust property with knowledge of the facts. It was liable because of its fraud in assisting in the breach of the trust relationship between the trustee, Santmeyer, and his beneficiary. It took the JOHNSON, NEWMAN, JONES, and MATbonds impressed with the trust and as a con- THIAS, JJ., concur. NICHOLS, C. J., and structive cotrustee was liable for the wrong-DONAHUE, J., not participating.

(185 Ind. 192)

of the reduction of a street assessment, though

STATE ex rel. NEAL et al. v. BEAL, Judge. the contractors, as a preliminary to filing their

(No. 22857.)

(Supreme Court of Indiana. June 30, 1916.) 1. COURTS 207(4)—ORIGINAL JURISDICTION OF SUPREME COURT-MANDAMUS.

petition for mandamus, attempted to intervene, thus making demand on the judge in the property owners' appeal from the assessment; there being no adequate remedy at law by appeal from the judgment of the court denying contractors' petition to intervene.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. § 35; Dec. Dig. 5.]

8. MUNICIPAL CORPORATIONS 508(7)
STREET IMPROVEMENT - REDUCTION OF AS-
SESSMENT ENTERING JUDGMENT FOR Con-
TRACTORS-EFFECT-STATUTE.

In Acts 1915, c. 87, providing that writs of mandate and prohibition may issue out of the Supreme Court in aid of its appellate powers and functions, and that such writs of mandate may issue out of the Supreme Court to the superior or criminal courts, compelling the performance of any duty enjoined by law upon them, including the granting of changes of venue, the The action of the Supreme Court in compel. words "such writs of mandate," as used in the second proviso of the act, will not be construed ling by mandamus a judge of a superior court to to mean writs of mandate issued in aid of the enter judgment against the city in favor of street appellate powers of the court, previously provid-reduction in the assessment on the appeal of improvement contractors for the amount of the

ed for.

property owners, as required by Burns' Ann. St.

[Ed. Note. For other cases, see Courts, Dec. 1914, § 8716, is not an adjudication as between Dig. 207(4).]

2. STATUTES 206-CONSTRUCTION.

A statute should be construed so as to give effect to all its parts, if such a construction can be reasonably and properly given.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. 206.] 3. COURTS 207(4) - POWER OF SUPREME COURT-STATUTE.

In Act 1915, c. 87, providing that writs of mandate may issue out of the Supreme Court to the superior or criminal courts, the words "including the granting of changes of venue from the county," etc., do not, under the rule of ejusdem generis, limit the power of the Supreme Court in issuing writs of mandate to writs only for the purpose of compelling changes of venue, since the doctrine does not apply when a general class is followed by a class including a particular class, and where the general words must bear a different meaning from the particular words or be of no meaning whatever.

[Ed. Note.-For other cases, see Courts, Dec. Dig. 207(4).]

4. STATUTES
IN WORDING.

230-CONSTRUCTION-CHANGE

A change in legislative purpose will be presumed from a change in the wording of a statute. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 311; Dec. Dig. 230.]

5. STATUTES 124(1)-TITLE.
The title of Acts 1915, c. 87, providing that
writs of mandate and prohibition may issue out
of the Supreme and appellate courts in aid of the
appellate powers and functions of such courts,
etc., is sufficient to authorize the provisions of
the act, all of which prescribe modes of pro-

cedure.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 184; Dec. Dig. 124(1).] 6. MANDAMUS 51-DUTY OF JUDGE ON REDUCTION OF ASSESSMENT MINISTERIAL CHARACTER-STATUTE.

the city and the contractors precluding the city from any defense which it might have against them, as the contractors cannot be parties to the appeal.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1181; Dec. Dig. 508(7); Appeal and Error, Cent. Dig. § 137.]

Action for writ of mandate by the State, on the relation of James A. Neal and others, against Fred W. Beal, Judge. Judgment directed to be entered for the relators.

Davis, Bogart & Royse and Duvall & Whitaker, all of Terre Haute, and H. J. Curtis, of Gary, for relators. Beasley, Douthitt, Crawford & Beasley, George W. Wells, and Thomas Gallagher, all of Terre Haute, for defendant.

LAIRY, J. This is an original action commenced in this court by the relators herein, praying for a writ of mandate compelling the defendant, judge of the superior court of Vigo county, to render judgment in favor of relators, and against the city of Terre Haute, for the amount of certain alleged street assessment liens. The facts presented by the petition are briefly as follows. The board of public works of the city of Terre Haute instituted proceedings for the improvement of a public street in the city, and under such proceedings the contract for the building of the improvement was let to the relators as the lowest bidders, and the street was constructed under the contract and accepted by the board of works as completed. The board then adopted a preliminary assessment roll, and gave notice of a hearing thereon, and at such hearing various property owners, assessed on the preliminary assessment roll, came before the board and objected to the assessments made against them. The board confirmed the assessments and the property owners, appearing and objecting, appealed to the superior court of Vigo county. In the superior court, various issues were formed between the city and the appealing Mandamus could issue at the instance of property owners, and the appeals were constreet improvement contractors to compel a judge of a superior court to render judgment in solidated in one case. After a hearing the their favor and against the city for the amount court entered a judgment to the effect that

The provision of Burns' Ann. St. 1914, § 8716, that whenever any street assessment is reduced on appeal the court shall render judgment in favor of a lienholder and against the city for the amount of the reduction and interest, is mandatory, enjoining upon the judge of the superior court a ministerial duty compellable by mandamus.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 98-100; Dec. Dig. 51.]

7. MANDAMUS 5- ADEQUATE REMEDY AT LAW.

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

its appellate jurisdiction, it would be incongruous to construe the second proviso as conferring upon the same court power to issue writs of mandate for the same purpose. A statute should be so construed as to give effect to all parts thereof, if such a construction can be reasonably and properly given. State v. Weller, 171 Ind. 53, 85 N. E. 761.

the improvement had not been built accord- | already given to the Supreme Court unlimiting to specifications; that the property of ed power to issue writs of mandate in aid of none of the appealing property owners had been benefited in any amount, and that the assessments made against them be reduced to nothing, vacated, and set aside, together with the liens therefor, and that the city pay all costs. After the rendition of such judgment, the contractors, the relators herein, petitioned the court asking leave to intervene in said proceedings, for the purpose of asking the court to modify the judgment and prayed to modify the judgment, so that the respective amounts in which the various assessments were reduced would be placed against the city and in favor of the relators, the alleged lienholders. The court refused to permit the relators to intervene and refused to modify the judgment as prayed. The relators thereupon filed their petition in this court for a writ of mandate and defend-ply when a general class is followed by a ant demurrer thereto, raising the questions as to relator's right to the relief prayed for under the facts set out in the petition.

[1, 2] In the memorandum accompanying the demurrer, defendant first takes the position that under our statute a writ of mandate cannot be issued by the Supreme Court to a circuit or superior court of this state to secure the relief here prayed for. This primarily presents the proper construction of an act of the General Assembly approved March 4, 1915. Acts 1915, p. 207. The part of the act here in question reads:

"Provided, also, that writs of mandate and prohibition may issue out of the Supreme and appellate courts of this state in aid of the appellate powers and functions of said courts respectively; and provided, further, that such writs of mandate may issue out of the Supreme Court to the circuit, superior, or criminal courts of this state respectively, compelling the performance of any duty enjoined by law upon such circuit, superior, and criminal courts, respectively, including the granting of changes of venue from the county in cases where such change of venue is allowed by law, and proper, timely, and sufficient motion and affidavit have been filed therefor, and such change of venue has been refused."

The defendant's first contention is that the words, "such writs of mandate," as used in the second proviso of this act as above set out, should be construed to mean "writs of mandate" issued "in aid of the appellate powers" of the court. The basis of the claim is that the word "such" as used in the second proviso, as above set out, so modifies the words "writs of mandate" following as to limit the meaning of the words "writs of mandate" in the second proviso to the writs of mandate provided for in the first. The construction suggested is improper, and its adoption would strike out much of the second proviso as meaningless and make the statute unreasonable and contradictory. The use of the words "and provided further," at the beginning of the second proviso, shows that it was the intention of the Legislature that the second proviso should provide for something beyond and different from that stated in the first. As the first proviso has

[3] It is also asserted that the words "including the granting of changes of venue from the county," etc., limit the power of the Supreme Court in issuing writs of mandate to writs only for the purpose of compelling changes of venue, but this is not based upon reason or upon any proper rule of grammatical or legal construction. The argument is placed upon the doctrine of ejusdem generis, but this doctrine does not ap

clause "including" a particular class, and where the general words must bear a different meaning from the particular words or be of no meaning whatever. U. S. Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69; Strange v. Board, 173 Ind. 640, 91 N. E. 242.

[4] Moreover, there was a material change in the wording of the statute made by the act of 1915 in question, over the prior statutes of 1881, and the amendment thereto of 1911 on the same subject, and a change of legislative purpose will be presumed from such a change of wording. Hasely v. Ensley, 40 Ind. App. 598, 82 N. E. 809. The act under consideration conferred upon the Supreme Court jurisdiction to issue original writs of mandate for the purpose of supervising and controlling the actions and jurisdiction of the circuit, superior, and criminal courts of the state.

[5] Two other objections are interposed to the statute under which these proceedings were brought: First, that the Legislature of Indiana had no power to confer upon the Supreme Court original jurisdiction to issue writs of mandamus to control the judicial discretion of another court; and second, that the title of the act is not sufficient to authorize the provision thereof, conferring' jurisdiction on the Supreme Court to issue original writs of mandate. The first objection is based upon the assumption that the statute confers upon the Supreme Court power to control the judicial action of another court. As to whether or not this construction of the statute can be warranted need not now be discussed, for, as will hereinafter be shown, the act sought to be mandated in this case is not one involving judicial discretion. Without taking up further space, it is also sufficient to say that the title of the act is sufficient to authorize the provisions thereof, all of which prescribe modes of procedure.

The next question presented by defendant's demurrer is whether the petition states facts sufficient to authorize the issue of a

writ of mandate. The petition seeks to com- for, and the determination and order of the pel the judge of the superior court to comply court shall be final upon all parties therewith a certain provision of section 8716, to and such as might have appeared at the Burns 1914, which reads as follows: hearing.

"Whenever any assessment is reduced on such appeal, the court shall render judgment in favor of said lienholder and against said city for the amount of said reduction, and interest thereon." It is defendant's position as pointed out in the memorandum, that the act sought to be compelled is purely discretionary, and therefore cannot be mandated; while it is relators' contention, in support of their petition, that under the statute such act is a ministerial duty enjoined by law upon the judge of the Vigo superior court, and that therefore a proper case is presented calling for the exercise of the mandatory power of

the court.

[6] In passing upon the nature of the duty required by the portion of the act quoted, it is necessary to detail briefly other parts of the statute, in order to show the general plan of procedure in relation to street improvements as bearing on the question here involved, and to refer to certain acts dealing with this subject which were superseded by

Section 8716, Burns 1914, provides the manner in which the board shall make out the preliminary assessment roll, after an improvement has been completed, and for notice and hearing by such board of remonstrances, filed by the owners affected, against the amount assessed against their respective either sustain or modify the preliminary asproperties. After the hearing the board shall sessment, and, if the assessments are reduced so that the aggregate amount thereof shall

taxed according to whether or not the assessments on such hearing are reduced a certain per cent. The statute then provides as has been quoted at the beginning of this discussion, that when an assessment is reduced on such appeal, the court shall render judgment for the amount of such reduction against the city and in favor of the lienholder.

The sections above referred to are sections

be less than the contract price of the imbe less than the contract price of the improvement, the difference shall be paid by the city in cash out of its general fund. It is shall be conclusive unless appealed from to then provided that this decision of the board the circuit or superior court of the county, by an owner of a lot or parcel of land assessed. No transcript shall be necessary on such appeal, but it shall be sufficient to state in the petition the nature of the proceedings, a description of the property, and the amount assessed against it. The cause is the statute under consideration. Section 8710, Burns 1914, provides for the prelim- then to be tried by the court or judge in vainary steps to be taken by the board of pub-cation. The costs of such appeal are to be lic works in proceedings for the improvement of a street. It provides for a notice and hearing upon the question of whether the estimated cost of the improvement will exceed the aggregate benefits which will accrue to the property liable to assessment for such improvement. If the aggregate amount of benefits determined by the board is less than the estimated cost price, and the contract is subsequently executed, the remainder of the cost of such improvement shall be payable by the city in cash. It is provided that the determination of said board as to the aggregate amount of special benefits shall be final and conclusive except as thereinafter provided. The section then provides for a remonstrance to be filed within ten days by a majority of the resident freeholders on the street, and also for an appeal. At the conclusion of the ten days stated, the board shall either confirm or modify the preliminary order and proceed to let the contract, the validity of which is not to be questioned except by a suit to enjoin its performance brought within ten days after its execution or before an actual commencement of the work. The section further provides that, within five days after the final order, 40 per cent. of such property owners may file written objections with the board which will be afterwards filed with the clerk of the circuit or superior court of the county, to the effect that the improvement is not required by the public needs, that its cost will be excessive in view of the value and nature of the property to be assessed, that the cost will exceed the benefits, or that the board has no legal authority to order the

107 and 111 of an act of 1905 as amended by the law of 1909. Acts 1909, p. 412. The act of 1889 in reference to street improvements did not provide for an appeal or review. The act of 1901 (Acts 1901, p. 534) allowed an appeal from assessments on street improvements to the circuit court of the county, and provided that on such appeal the aggrieved property owner might present three questions to the court for determination: (1) That the proceedings for the improvement were invalid; (2) that the benefits assessed against the property were too high or the damages too low; or (3) that such assess ments were too high in proportion to other assessments. The section of the act of 1905 (Acts 1905, p. 219, § 111) dealing with this subject, provided for a review of assessments only and for the appointment of three disinterested appraisers by the circuit court of the county who were to reassess the bene fits complained of.

It will be observed that the first act which provided for appeals from assessments expressly designated what questions might be tried and determined on appeal, and that the later act of 1905 provided that the owner of