100 acres claimed by appellant in her cross complaint, were incumbered by mortgages amounting to $2,700, in the execution of which appellant had joined with her husband. The decree adjudged, in effect, that the 200 acres of real estate described in the petition to sell, except the interest therein which Caroline Watkins inherited under the law as the widow of the deceased, were liable and subject to sale to pay the indebtedness of the deceased and costs of administration, and that 100 acres, not claimed by said Caroline Watkins as her separate property in her cross complaint, be sold by said administrator to pay the debts of said decedent, and that all the debts and expenses of administration that may remain unpaid after the application of the personal estate be paid out of the proceeds of such sale, and that, if any part of the proceeds of the sale of said 100 acres of real estate remains after the payment of said debts and costs of administration, the same shall belong to and be paid to the widow, Caroline Watkins; that said Caroline Watkins was the owner in fee simple of the 100 acres of real estate described in her cross complaint, subject only to the payment of whatever of the indebtedness of such decedent and expenses of administration, set forth in the finding of facts and the decree, may be unpaid and unprovided for after the sale and application of the proceeds of the 100 acres of real estate above ordered sold to pay debts; and, if the proceeds of the sale of the first-named 100 acres should not be sufficient to pay all of said debts of the decedent, that said Caroline Watkins should have the right and privilege of paying said administrator, within 60 days from the time said fact is ascertained, a sum sufficient to pay the then unpaid balance of the debts, and on her failure to do so, after due notice, the administrator shall proceed to sell a sufficient part of said 100 acres of real estate described in the cross complaint to pay the then unpaid balance of said debts and costs and expenses of administration; and, subject only to these provisions, the title in and to said 100 acres of land is forever quieted in appellant against all parties to said action. The 100 acres first mentioned and ordered sold in said decree was sold by the administrator for $4,000, and appellee administrator paid and satisfied said mortgages on the 200 acres of real estate, amounting to $2,700, and was proceeding to pay off the other indebtedness of said estate, when the widow, this appellant, demanded the one-third of the proceeds as hers, free from all demands of creditors, which he refused to pay, on the ground that by said decree he was ordered to pay debts and cost of administration first, and that she was, under said decree, only entitled to receive what was left of the proceeds of said sale after the payment of all debts and costs of administration. She thereupon commenced an action against him as such administrator, and recovered a judgment for one-third of the gross proceeds of said sale,

which was affirmed by this court in Lewis v. Watkins, 150 Ind. 108, 49 N. E. 944. Appellee paid to appellant, as adjudged by the court in said action, one-third of the gross proceeds of the sale of said 100 acres of real estate; and, after paying out the balance of the proceeds of said sale and the other assets of the estate in his hands on the indebtedness and cost of administration specified in said special finding and decree, there remained unpaid thereof the sum of about $2,075. Said administrator has no assets in his hands to pay the same. Proper notice was served on appellant of the deficiency of the assets of said estate to pay said indebtedness as provided in said decree. Appellant has neglected and refused to pay the same or any part thereof. This proceeding is brought by appellee against appellant to procure an order to sell the 100 acres of real estate, the title to which was quieted in her by said decree, subject to said indebtedness, to make assets to pay said debts. While the application seems to have been docketed in the court below as an independent action, it is, and must be treated as, a part of the original proceeding brought to sell the decedent's real estate to pay debts provided for by section 2501, Burns' Rev. St. 1894 (section 2346, Horner's Rev. St. 1897). Appellant's demurrer for want of facts to the petition to sell was overruled, and she filed an answer in six paragraphs. Appellant withdrew the first and second paragraphs of answer, and appellee's demurrer for want of facts to the third, fourth, fifth, and sixth paragraphs of answer was sustained; and the court found in favor of appellee, and, over appellant's motion in arrest of judgment, rendered judgment ordering the sale of the undivided two-thirds of said real estate to pay said indebtedness.

The errors assigned call in question the action of the court in overruling the demurrer to the application for an order for a further sale of real estate; in sustaining the demurrer to the third, fourth, fifth, and sixth paragraphs of answer; in overruling the motion in arrest of judgment and the motion to modify the judgment. The correctness of the rulings of the court challenged by the assignment of errors depends upon whether the part of the judgment and decree in the original proceeding which provides that the 100 acres of real estate in controversy is subject to and liable for the indebtedness of the decedent, and shall be sold to pay the same if there is a deficiency, is void. If that part of the decree is void, this case should be reversed; otherwise, it should be affirmed. Appellant insists that said part of the judgment is void-First, because there was no pleading authorizing such a limitation of her title, and the same is therefore outside of the issues; second, because the court had no jurisdiction to order a sale of her lands to pay her husband's debts.

Appellee, by his petition in that case, asked for an order to sell 200 acres of real estate to pay the debts of Russell B. Wat

kins, deceased. Appellant's answer to said petition, and her cross complaint and appellee's answer thereto, put in issue the title to said 100 acres; and every right, interest, and claim of appellant, and also of appellee as administrator, were put in issue. Appellee was not required to plead any matter of estoppel or any other defense in answer to appellant's cross complaint, for the reason that under section 1067, Burns' Rev. St. 1894 (section 1055, Horner's Rev. St. 1897), he was entitled to make and give in evidence any defense, either legal or equitable, that he had to her cross complaint. East v. Peden, 108 Ind. 92, 8 N. E. 722. If a legal or equitable defense existed to appellant's cross complaint, and appellee had failed to prove said defense at the trial, the same would have been lost, the same as if it had never existed, and could not have been asserted in another action. Railway Co. v. Allen, 113 Ind. 581, 587, 592, 15 N. E. 446; East v. Peden, 108 Ind. 92, 8 N. E. 722; Watkins v. Winings, 102 Ind. 330, 1 N. E. 638; Faught v. Faught, 98 Ind. 470, 475-479. In Railway Co. v. Allen, supra, the court said: "The great object to be accomplished by the statutory action to quiet title is to settle in one action all conflicting claims. In Green v. Glynn, 71 Ind. 336, it was said: "The very object of the action to quiet title is to determine all conflicting claims, and remove all clouds from the title of the complainant. If one having a claim is brought into court by a complaint to quiet title, and fails to assert his claim, he is concluded by the judgment, even though he omitted to assert his real claims. The statute was intended to secure repose, and to settle in one comprehensive action all conflicting claims.' It was said in Farrar v. Clark, 97 Ind. 447, that 'our own cases have steadily maintained the doctrine that the action is intended to settle in one proceeding all claims, and to put an end to all litigations concerning the title.' In many cases it has been asserted that a decree in an action to quiet title, as well as in kindred actions where title is directly put in issue, cuts off all claims of the unsuccessful party, except such as are expressly saved by the decree. Ulrich v. Drischell, 88 Ind. 354; Cooter v. Baston, 89 Ind. 185, and authorities cited page 186; Stumph v. Reger, 92 Ind. 286; Ragsdale v. Mitchell, 97 Ind. 458; Faught v. Faught, 98 Ind. 470; Watkins v. Winings, 102 Ind. 330, 1 N. E. 638." The 100 acres of real estate claimed by appellant in her cross complaint had been devised to her by her father, but she and her husband had conveyed said real estate to a trustee, who reconveyed the same to her husband several years before his death. It was in her husband's name at the time of his death, and by her cross complaint she assailed said conveyances, and sought to have them set aside, and the title to said real estate, in fee simple, quieted in her, as against her children and appellee, representing her husband's cred

itors. The ownership of said real estate, and its liability to sale to pay the debts of her husband, were in issue in said case; and, within these issues, the court found and adjudged in that case that said real estate was subject and liable to sale for the payment of the debts of her deceased husband, and that the same should be sold to pay any of such debts remaining unpaid after exhausting the other assets of the estate, if she failed to advance the money to pay the same, and that. subject to said indebtedness, the title to said real estate, in fee simple, be quieted in her The title to said real estate in fee simple, it is true, was adjudged to be in her, but subject to said indebtedness; and appellant's right to sell the same for the payment of the debts of the decedent remaining unpaid after the proceeds of the sale of the other 100 acres and personal estate had been ex hausted was expressly reserved and saved by said decree. It is insisted by appellant, however, that the court had no jurisdiction to adjudge that her lands were subject to her hus band's debts, or liable to be sold to pay the

It will be observed that the petition to sell alleged that all the real estate was owned by the decedent at the time of his death, and asked for an order to sell the same as his real estate to pay his debts; and one of the questions to be determined was whether appellee, as administrator, was entitled to sell the same for that purpose. Lantz v. Maffett, 102 Ind. 23, 30, 26 N. E. 195; Gavin v. Graydon, 41 Ind. 559; Parker v. Wright, 62 Ind. 398; Thomas v. Thompson, 149 Ind. 391, 394, 49 N. E. 268; Denton v. Arnold, 151 Ind. 188, 51 N. E. 240, and cases cited. The court did not adjudge that her land was subject to sale to pay her husband's debts, but that as between appellant and appellee, representing her husband's creditors, the land was the land of her husband, and as such was subject to and liable for his debts. It has often been held that where a wife places the legal title to her land in her husband, or suffers the legal title thereto to remain in him, she may by her conduct, under some circumstances, estop herself from asserting her ownership to said land against the creditors of her husband. Le Coil v. Armstrong-Landon-Hunt Co., 140 Ind. 256, 39 N. E. 922, and cases cited; Pierce v. Hower, 142 Ind. 626, 631, 632, 42 N. E. 223; Minnich v. Shaffer, 135 Ind. 634, 34 N. E. 987. Ap pellant did not claim to own, and did not own, the real estate described in her cross complaint, as the widow of said Russell B. Watkins, for which reason the case of Lewis v. Watkins, 150 Ind. 108, 110, 111, 49 N. E. 944, and cases there cited, which hold that the court ordering the sale of real estate of a decedent to pay debts has no jurisdiction to order the sale of the widow's interest therein, except in the cases provided for in sections 2503, 2504, Burns' Rev. St. 1894 (sections 2348, 2349, Horner's Rev. St. 1897), have no application here. The part of the decree in

regard to appellant's title to said real estate, and that said real estate is subject to the payment of the debts of the decedent, and liable to be sold to pay the same, was clearly within the issues in said cause, and the court had full and complete jurisdiction over the subject-matter and the parties. The same is not, therefore, subject to collateral attack by appellant or any other party thereto. Whether said decree was right or wrong was a matter to be decided on an appeal, but it cannot be questioned in this proceeding, even if erroneous. Lantz v. Maffett, 102 Ind. 23, 26 N. E. 195. The only question adjudicated in Lewis v. Watkins, 150 Ind. 108, 49 N. E. 944, was that said appellant in that case, who is also the appellant here, was entitled to onethird of the gross proceeds of the sale of the 100 acres of real estate first ordered sold, and that so far as the judgment directed the administrator to pay her part of the proceeds of said sale on any debts of the decedent, other than the mortgages in the execution of which she had joined, the same was void. The remainder of the judgment was not questioned, but, on the contrary, the legal effect of the judgment and conclusions of law was set forth in Lewis v. Watkins, supra, the same as they have been construed in this appeal. Finding no available error in the record, the judgment is affirmed.

HADLEY, J., took no part in the decision of this cause.

(153 Ind. 368)

NATCHER v. NATCHER. (Supreme Court of Indiana. Oct. 31, 1899.) APPEAL-INTERLOCUTORY ORDER-BOND.

A court, having made an interlocutory order for the payment of money, fixed the amount of the appeal bond, approved the surety, and gave 10 days in which to file the bond, and adjourned court the same day. The bond was filed after the term. Held, that the appeal should be dismissed, under Burns' Rev. St. 1894, §§ 658660 (Rev. St. 1881, §§ 646-648; Horner's Rev. St. 1897, §§ 646-648), requiring appeals from such orders to be taken, and the bond filed, at the term the order is made.

Appeal from circuit court, Boone county; Barton S. Higgins, Judge.

Suit between Amanda M. Natcher and Harry D. Natcher. There was a decree for the former, and the latter appeals. Appeal

dismissed.

Guenther & Clark and Saml. M. Ralston, for appellant. Thomas Hanna and Harrison & Laughrum, for appellee.

⚫ MONKS, J. This is an appeal by appellant from an interlocutory order against him for the payment of money, made at a regular term of the court below. The order for the payment of the money was made on July 1, 1899, and appellant, at the time the order was made, prayed an appeal, and the court fixed the amount of the appeal bond, and a surety was named by appellant, and accept

ed by the court, and 10 days given in which to file the bond. After said order was made and appeal prayed, and on the same day, the court below adjourned for the term. On July 8, 1899, in vacation, appellant filed his bond in the amount fixed, and with the surety accepted by the court, and on September 2, 1899, filed the transcript in this court. Appellee has filed a motion to dismiss the appeal on the ground that the same was not taken at the term at which said order was made. The rule is that no appeal can be taken from an interlocutory order unless there is a statute expressly providing therefor, and such statute must be strictly construed. Telegraph Co. v. Locke, 107 Ind. 9, 7 N. E. 579, and cases cited; Wood v. Brewer, 9 Ind. 86; Elliott, App. Proc. §§ 100-109; 2 Enc. Pl. & Prac. 81, and cases cited in note 2. In Telegraph Co. v. Locke, supra (page 15, 107 Ind., and page 583, 7 N. E.), Elliott, J., speaking for the court, said: "It is, therefore, important that the right of appeal from all interlocutory orders should be strictly guarded, and the statutes conferring the right be strictly construed." This appeal is not governed, therefore, by sections 644, 652, Burns' Rev. St. 1894 (sections 632, 640, Rev. St. 1881; sections 632, 640, Horner's Rev. St. 1897), which provide for appeals from final judgments, but by sections 658-660, Burns' Rev. St. 1894 (sections 646-648, Rev. St. 1881; sections 646-648, Horner's Rev. St. 1897), which provide for appeals from certain interlocutory orders mentioned therein. Section 658 (646), supra, provides that appeals may be taken from certain interlocutory orders, among which are "orders for the payment of money." Section 659 (647), supra, provides that: "Such appeal may be taken at the term of court at which the order is made; or when made in vacation, the appeal may be taken at the time or during the next term. The appeal shall not be granted until the appellant has filed an appeal bond, as in other cases of appeal." Section 660 (648), supra, provides that: "Such appeal shall not stay proceedings upon the order more than thirty days, unless the supreme court in term, or some judge thereof in term or vacation, shall otherwise order." Section 659 (647), supra, expressly prohibits the court from granting an appeal from an appealable interlocutory order until the appellant has filed his appeal bond, and limits the right to appeal from such order, if made in term time, to the term at which it is made. It is evident, therefore, that no appeal can be taken from an appealable interlocutory order, made in term time, unless the bond is filed and approved, and the appeal is taken, at the term at which the order was made. Elliott, App. Proc. § 109. Miller v. Burket, 132 Ind. 469, 32 N. E. 309, cited by appellant, is not in conflict with the conclusion reached in this case. In that case the appeal was taken from an interlocutory order made in vacation, the amount of the bond being fixed by the judge, and 20

days' time given in which to file the appeal | bond. An appeal may be taken from an appealable interlocutory order made in vacation, at the time it is made or during the next term. Section 659 (647), supra. The appeal bond in that case was filed within the time given, which was before the expiration of the time. fixed by the statute within which an appeal could be taken from an interlocutory order made in vacation. In this case the appeal bond was filed after the close of the term at which the order was made, and therefore after the time within which an appeal could be taken. It is evident that no appeal can be taken from any appealable interlocutory order, if it is made in term time, unless the appeal bond is filed before the close of the term at which the order is made, and, if it is made in vacation, unless the appeal bond is filed before the close of the next term after the order is made. Judge Elliott, in his admirable work on Appellate Procedure (section 109), says: "A bond must be filed, and the appeal must be taken, at the term at which the order is made, if made in term time, but, if not made in term time, then at the time it is made, or during the next term." Appellee's motion to dismiss the appeal is therefore sustained. Appeal dismissed.

Under Burns' Rev. St. 1894, § 261 (Horner's Rev. St. 1897, § 260; Rev. St. 1881, § 260), authorizing the court to admit a person to prosecute or defend as a poor person, and requiring it to assign him an attorney therefor, who shall not take any fee from him, such attorney rendering the services does so voluntarily, and has no cause of action therefor against the county.

Appeal from superior court, Howard county; Hiram Brownlee, Judge.

Action by Clark N. Pollard against the board of commissioners of Howard county. There was a judgment for plaintiff, and defendant appeals. Reversed.

Blacklidge, Shirley & Wolf, for appellant. Benj. F. Harness and C. N. Pollard, for appellee.

DOWLING, J. By the order of the Howard circuit court, one Forgey, who was the plaintiff in a civil action pending in that court, was admitted to prosecute the same as a poor person, agreeably to the provisions of Burns' Rev. St. 1894, § 261 (Horner's Rev. St. 1897, § 260; Rev. St. 1881, § 260). The appellee, an attorney of that court, was assigned, him to prosecute the suit. The appointment was accepted, and such professional services as were necessary in the action were performed by appellee. Afterwards the court, by its further order, allowed the appellee the sum of $100 as compensation for his services.

A certified copy of this order was presented to the auditor of Howard county, and a warrant upon the treasurer of the county for the payment of the sum named in the order was demanded. The auditor refused to draw such warrant, and suit was brought by the appellee against the board of commissioners of Howard county upon the order. A demurrer to the complaint was overruled, and, the defendant failing and refusing to plead further, judgment was rendered for appellee. The board appealed, and the error assigned is the ruling of the court on the demurrer.

The question presented is: Did the appointment of the appellee by the Howard circuit court create a charge against the county, and was the order of the court allowing the appellee compensation for professional services rendered by him to a poor person in a civil action authorized by law? The provision of the statute under which the appointment of the appellee as such attorney was made is found in the Code of Civil Procedure only, and is in these words: "Any poor person, not having sufficient means to prosecute or defend an action, may apply to the court in which the action is intended to be brought, or is pending, for leave to prosecute or defend as a poor person. The court, if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defense, who shall do their duty therein without taking any fee or reward therefor, from such poor person." An attorney at law cannot, in this state, be compelled by an order of a court to render professional services without compensation. In criminal cases the defense of the poor and destitute is a necessary obligation devolving upon the county, and to the extent of providing counsel for them the court is the agent of the county. An allowance for such services, made by the order of the court, is not conclusive upon the county, but is prima facie evidence only that the services were so rendered. The authority for such allowances is said in some of the cases to be found in secticns 2-4, 1 Gavin & H. St. p. 64, corresponding to sections 14791481, Burns' Rev. St. 1894; Horner's Rev. St. 1897, §§ 1413-1415; Rev. St. 1881, §§ 14131415. It has been said, also, that the principle upon which the authority of the court to assign counsel in a criminal case and charge the county rests is the same as that which governs the overseers of the poor in determining who shall receive temporary relief when in distress, and to bind the county to those who care for such needy persons. This power is inherent in the courts, and without any statute they possess it, to the end that justice may be administered. Blythe v. State, 4 Ind. 525; Webb v. Baird, 6 Ind. 13; Gaston v. Board, 3 Ind. 497; Alleghany Co. v. Watt, 3 Pa. St. 462; Board v. Wood, 35 Ind. 71;

Board v. Summerfield, 36 Ind. 543; Gordon v. Board, 52 Ind. 322; Tull v. State, 99 Ind. 238; Board v. Pollard, 17 Ind. App. 470, 46 N. E. 1012; Trant v. State, 140 Ind. 414, 39 N. E. 513; State v. Jamison, 142 Ind. 679, 42 N. E. 350. None of these cases, however, touches the questions presented on this appeal. The appointments of counsel referred to in them were made in criminal cases only. These appointments, It is conceded in most of the decisions, were made, not upon any statutory authority, but by virtue of the inherent powers of the courts, and cogent reasons are given for the necessity of this power for the protection of the indigent defendant suffering under "the double misfortune of poverty and the accusation of crime." It cannot be said that this course of reasoning applies with equal force to a civil action to which a poor person is a party, and in which property rights only are at stake. Besides, the legislature has not left the protection of the rights of the poor suitor in a civil action to the exercise of the inherent powers of the court, as in criminal causes, but it has, by express statute, regulated the course of procedure in such instances. When the applicant is admitted by the court to sue or defend as a poor person, counsel and all other officers requisite for the prosecution or defense of his suit are assigned him, and such attorney and officers are required to do their duty therein without taking any fee or reward therefor from such poor person. The statute must be understood to express the whole intention of the legislature, and we think that in its construction the maxim, "Expressio unius est exclusio alterius," applies. The statute provides for and contemplates any gratuitous services on the part of the attorney and other officers. We do not think the courts are authorized to add to the statute the qualification that the fees of the attorney shall be allowed by the court, and paid by the county. Such a construction would, in our opinion, open the door to grave abuses, and might subject the revenues of the county to serious drains. The statute refers to the attorney as one of the officers of the court, and such he doubtless is, and such he has always been considered. When admitted to practice, he takes an oath to faithfully perform his duties as an attorney of the court. One of those duties, as defined by the statute, is, "never to reject from any consideration personal to himself the cause of the defenseless or oppressed." Burns' Rev. Rev. St. 1894, § 979, subsec. 8. We cannot believe that the construction we have put upon this section will result in any practical hardship, or that the courts will have any difficulty in commanding the services of able and conscientious members of the bar, when such services are required for the protection of the poor and defenseless, whose rights or wrongs are the subjects of judicial inquiry in civil actions. The eager desire of young practitioners to take part in the exciting contests

of the bar, the opportunity afforded to the ambitious to achieve reputation by a display of forensic talent, and the higher motives supplied by feelings of humanity and benevolence, will, as we believe, in every case secure a prompt response to the appointment of the court where the gratuitous services of an attorney are called for.

It is objected by counsel for the appellee that, if the statute requires the attorney designated by the court to prosecute or defend for an indigent person in a civil action without compensation, then the statute is in conflict with section 21, art. 1, of the constitution of the state, which declares that no man's particular services shall be demanded without just compensation. The evident answer to this objection is that the attorney cannot be compelled to perform the services, for the reason, at least, that the statute providing for his appointment denies him compensation, and, if he does render them at the request of the court, he does so voluntarily, and with the knowledge that he is to receive no fee or reward therefor. Having undertaken the employment voluntarily and gratuitously, he has no ground for a claim to compensation either from the poor person or the county. In our opinion, the language of this statute excludes the idea that compensation shall be made to the attorney from any source, and we think the courts have no power under it to tax fees, or distribute rewards, when the statute declares that none is to be expected. Judgment reversed, with instructions to the superior court of Howard county to sustain the demurrer to the complaint, and for further proceedings in accordance with this opinion.

(153 Ind. 354)

STALDTER v. CITY OF HUNTINGTON et al.

(Supreme Court of Indiana. Oct. 31, 1899.) MUNICIPAL CORPORATIONS-ACTION FOR INJURIES OF EMPLOYÉ OF CONTRACTORKNOWLEDGE BY EMPLOYÉ OF DANGER. 1. In an action against a city and its contractors for personal injuries sustained by the plain tiff by reason of an explosion of dynamite while at work on a sewer, the evidence showed that in making the excavation it became necessary to use dynamite for the purpose of blasting; that the work was done under a foreman of the contractors; that they hired and paid all the employés, the plaintiff being one of them; that the city had no control over the work or the employment of the servants of the contractors, the city reserving no right in respect to the work except to see that it conformed to the standard required by the contract. Held, that a verdict for the city was properly directed, although the contractors had obligated themselves to save the city harmless from damages arising out of their negligence.

2. In an action against a city and its contractors for personal injuries sustained by the plaintiff by reason of an explosion of dynamite while at work in a sewer trench, it was not error to direct a verdict for the contractors, in whose employ plaintiff was, where the evidence clearly showed that the unsafe condition of the trench where he was at work at the time of the accident was as obvious and as well known to him as it was to his employers.