(147 N.E.) NICHOLS, J. This is an appeal from a judgment in favor of appellee on appellant's INLAND STEEL CO. v. Dragic GVOZDIC. demurrer to appellee's plea in abatement. Appellant has failed to set out any pleadings in her brief. Appellee has called her atten (No. 12247.) (Appellate Court of Indiana. May 20, 1925.) tion to this defect, but she has failed to take Jacob LEUCK v. Frederica SCHINDLER. (No. 12189.) (Appellate Court of Indiana, Division No. 2. April 23, 1925.) Appeal from Circuit Court, Benton County; Burton B. Berry, Judge. any steps to amend. Nothing is presented. Affirmed. Lucy MIKOLAJCZYK v. Walter MIKOLAJ- (Appellate Court of Indiana. April 22, 1925.) D. P. Sevald and Fred Barnett, both of Hammond, for appellant. PER CURIAM. Action by appellee for divorce on the grounds of adultery and cruel Joseph B. Ross, of La Fayette, and E. treatment, to which the appellant replied by Grant Hall, of Fowler, for appellant. general denial; she also filed a cross-com-` Elmore Barce and J. Edward Barce, both plaint, charging cruel and inhuman treatment of Fowler, for appellee. and nonsupport, in which she asked for a "limited divorce" for the period of three years; this cross-complaint was answered by a general denial. A trial resulted in a finding for the plaintiff on the issues tendered by his complaint, and a finding against the defendant on the issues tendered by her cross-complaint. From a decree granting a divorce to plaintiff, defendant has appealed, and has assigned as error the action of the court in overruling her motion for a new trial. NICHOLS, J. Action by appellee against appellant to recover $900 which she claimed to have loaned him, to be repaid to her upon demand. Appellant was the son-in-law of appellee, and claimed that the money was given by appellee to her daughter, his wife, because she had not received her full share of the estate. The only question presented is error of the court in overruling appellant's motion for a new trial, under which appelThe appellant first contends that the evilant contends that the evidence is insufficient dence shows both parties to have been guilty to sustain the verdict in favor of appellee, of marital wrongs, and that therefore neither upon which judgment was rendered. There was entitled to a divorce. This contention, is a sharp conflict in the evidence, but the as to its validity, depends upon the credibiljury, after hearing it, believed appellee. Aft-ity of the testimony given. If the court beer reading the evidence as set out in appellant's brief, and supplemented by appellee in her brief, we are inclined ourselves to believe appellee's statement. Certainly there was ample evidence to sustain the verdict. Affirmed. 3 lieved, as it evidently did, the testimony of appellee, and did not believe the testimony of appellant, the decree, so far as the above contention is concerned, was right. It is next contended that the appellant was not entitled to a decree, because, it is insisted, the offense of adultery was by him condoned. On oral argument it was insisted that the appellee, while testifying as a witness, had admitted living with the appellant as his wife subsequent to the time of her commit(Appellate Court of Indiana, Division No. 2. ting the alleged offense, with full knowledge April 10, 1925.) Amanda E. LONG v. William MITCHELL et al. (No. 12311.) thereof. A careful reading of all the testimony fails to disclose any such testimony as Appeal from Circuit Court, Owen County; having been given by appellee. The appelHerbert A. Rundell, Judge. lant testified to such living together, but her Slinkard & Slinkard, of Spencer, for appel- credibility was for the trial court. lant. Rawley & Baumunk, of Brazil, Ind., James L. Burns, of Clay City, and Hickam & Hic kam, of Spencer, for appellees. After a careful reading of all the testimony in this case, we are impressed that the decree of divorce in this case was fully justified. Affirmed. PENNSYLVANIA CO. and P., C., C. & L. R. R. Co. v. John MASCOE et al. (No. 12120.) seeks to present, for the reason that his brief contains no points and authorities. However, St. as appellant's counsel seem to have acted in good faith, and as we can readily determine the questions which he seeks to present, we (Appellate Court of Indiana, Division No. 2. conclude to decide the case on its merits. April 2, 1925.) Appellant first contends that the judgment is not discharged, because it was taken more Appeal from Superior Court, Marion Coun- than four months before the bankruptcy proty; Theo. J. Moll, Judge. Pickens, Davidson, Gause & Pickens, of Indianapolis, for appellants. Galvin & West, of Indianapolis, for appel lees. NICHOLS, J. This case involves the same flood event, and presents substantially the same questions, as in the case of Pennsylvania Co. v. Watson (Ind. App.) 146 N. E. 763. On the authority of that case the judgment is affirmed. 2 Edna H. SHARP v. James E. McANINCH et al. (No. 12131.) (Appellate Court of Indiana. May 1, 1925.) Appeal from Circuit Court, Marion County; Clarence E. Weir, Judge. Thos. H. Fitz, of Indianapolis, for appellant. Sumner Clancy and Felt & Forney, all of Indianapolis, for appellee. PER CURIAM. Judgment affirmed. 3 Zelmond F. STOVALL v. Jesse T. STIPP. (No. 12288.) (Appellate Court of Indiana, Division No. 2 April 2, 1925.) ceedings. There is nothing in this contention. A discharge in bankruptcy released the bankrupt from all liability on a judgment such as here involved. Throop v. Griffin, 180 Pa. 452, 36 A. 865; Boggs v. Dunn, 160 Cal. 283, 116 P. 743; In re Hale (D. C.) 161 F. 387. Appellant next contends that the decision of the trial court was erroneous, because there was no averment or proof of notice of the bankruptcy proceeding to appellant, the judgment creditor. But appellant's authorities to sustain this contention pertain to judgments that were not scheduled. The Bankruptcy Act expressly provides that "a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as have not been duly scheduled," etc. The second paragraph of answer averred that the judgment was duly scheduled by appellee and tnat appellee was discharged. The certificate of discharge was read in evidence, and there was proof that the judgment was duly scheduled. The court, therefore, did not err in its ruling. Beck & Gregg Hardware Co. v. Crum, 127 Ga. 94, 56 S. E. 242. The judgment is affirmed. U. S. S. LEAD REFINERY, a Corporation, Appeal from Industrial Board. Appeal from Circuit Court, Lawrence pellant. Giles & Doman, of Mitchell, for appellant. NICHOLS, J. Action by appellant to renew a judgment. To the complaint appellee filed an answer in two paragraphs, the first a denial, and the second an answer of discharge in bankruptcy. Appellant's demurrer to the second paragraph of answer was overruled, to which ruling appellant excepted. There was a trial by the court, which resulted in a finding and judgment for appellee. The errors assigned are the action of the court in overruling appellant's demurrer to the second paragraph of answer, and in overruling his motion for a new trial. There is merit in appellee's contention that appellant has waived the errors which he Todd & Thorsen, of Hammond, for appellee. NICHOLS, J. Appeal from an award of the Industrial Board, granting compensation to appellee as an employee of appellant. Appellant denies liability for such compensation on the ground that no accident had occurred, and that appellee was simply suffering from a disease known as eczema, and nothing else. Appellee was permitted to read in evidence over the objection of appellant a statement or report which purported to have been made by one of appellee's physicians, describing his affliction and giving the cause thereof. Such statement was incompetent, but we will not reverse an award of the Industrial Board because of incompetent evidence, if there is competent evidence to sustain the same. But the evidence, aside from (147 N.E.) this statment, was wholly insufficient to sustain the award. When appellee's own witnesses, medical experts, described his ailment as a disease, and were unable to say that it resulted from the conditions of his employment, then the board was not justified in finding that appellee was entitled to compensation because of an accidental injury received in the course of his employment. The award is reversed. nesses then signed their names to said instrument with Mr. Feldman's pen in the presence of the testator and of each other." The contestant appealed and her appeal was dismissed on November 13, 1924, for her failure to perfect the same. October 29, 1924, the appellant filed in the probate court a petition praying that the decree of April 5, 1924, be vacated because of newly discovered evidence which, she alleged, would establish that the signatures of the testator and of all three of the attesting witnesses were forgeries and that the instru ment admitted to probate was not the one Emma K. PEPPER v. OLD COLONY TRUST which the testator had actually signed on COMPANY. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1925.) See, also, 142 N. E. 817. April 22, 1922. At the hearing on the petition to probate the will the validity of the signature of the testator was directly attacked as being a forgery, and the signatures of the witnesses were questioned, but without Marion Weston Cottle, of Boston, for ap- much examination or testimony of witnesses. pellant. Pillsbury, Dana & Young, of Boston (S. H. Pillsbury and S. E. Gifford, both of Boston, of counsel), for executor. PIERCE, J. This is an appeal from a decree of the probate court for the county of Suffolk, entered December 5, 1924, denying a petition to vacate a decree of said court entered on April 5, 1924, admitting to probate the will of Rufus E. Lawrence which purported to have been executed on April 22, 1922. December 20, 1922, the executor, Old Colony Trust Company, filed a petition for the probate of the said will. After a protracted hearing of several days at which the present appellant (the then contestant) was represented by counsel, the court entered a decree allowing the will. With the entry of the decree the judge made these findings of fact: "The testator spread the instrument upon a table or desk and in the presence of the three witnesses started to sign his name with his fountain pen, the pen ran dry before he concluded his signature; he called to Mrs. Stillings for ink, but the witness Feldman offered his fountain pen which the testator took and used to complete his signature. The three wit At this hearing the judge refused to allow time for a chemical analysis of all the writings on the will other than the typewriting. At the hearing on the petition to vacate the decree the petitioner contended that signatures of the witnesses, as well as the signature of the testator, were forged, and offered to prove the alleged fact in the presence of the judge by the application of chemicals to the ink in the signatures, and the examination of such signatures under a compound microscope. The judge refused to permit the experiment and the only question before this court on the present appeal is: Was such action a failure to exercise judicial discretion? After a careful examination of the evi dence reported in the record, we think it cannot be said rightly that the rejection of the chemical experiment was clearly wrong. Commonwealth v. Tucker, 189 Mass. 457, 458, 76 N. E. 127; Dow v. Bulfinch, 192 Mass. 281, 78 N. E. 416; McCarthy v. Curry, 240 Mass. 442, 134 N. E. 339. The judge saw the wit nesses at the trial and was satisfied that notwithstanding the additional evidence the decree ought to stand. Powers v. Bergman, 210 Mass. 346, 96 N. E. 674. Decree affirmed. END OF CASES IN VOL. 147 THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and Proceeding "in rem" defined.-Id. Proceeding "quasi in rem" defined.-Id. Proceeding to determine ownership of proceeds of benefit certificate is one "in personam."-Id. IV. COMMENCEMENT, PROSECUTION, (D) Distinct and Exclusive Possession. 36 (III.) Possession of one claiming exclusive ownership is adverse to all the world.Schmitt v. King, 147 N. E. 101. (F) Hostile Character of Possession. ~~71(1) (II.) Purchaser of unoccupied land, described as lot, had color of title to land within lots as shown on assessor's plat.-Schmitt v. King, 147 N. E. 101. (G) Payment of Taxes. ~93 (III.) Payments of taxes, without payment thereof for 7 consecutive years, are mere gratuities. Schmitt v. King, 147 N. E. 101. 95 (III.) Evidence held insufficient to prove Schmitt v. King, 147 N. E. 101. payment of taxes for 7 consecutive years. II. OPERATION AND EFFECT. (B) Title or Right Acquired. / 107 (III.) Title by adverse possession to abutting lots includes title to center of street. menced.-Rosenblatt v. Foley, 147 N. E. 558.-Waterloo Condensed Milk Co. v. Voges, 147 Date of writ not conclusive evidence of com- N. E. 373. mencement of action.-Id. 64 (Mass.) When action deemed com III. PLEADING, EVIDENCE, TRIAL, AND 112 (111.) Presumptions in favor of holder of legal title.-Schmitt v. King, 147 N. E. 101. 114(1) (11.) Evidence held insufficient to prove title by 20 years' adverse possession.Schmitt v. King, 147 N. E. 101. Proof to establish title by adverse possession must be clear, positive, and unequivocal.-Id. AGENCY. 4 (N.Y.) Vessel in dock is in navigable waters, though water withdrawn.-Butler v. Robins Dry Dock & Repair Co., 147 N. E. 235. See Principal and Agent. 18 (N.Y.) Maritime tort depends on locality. -Butler v. Robins Dry Dock & Repair Co., 147 N. E. 235. Tort on vessel in navigable waters or in floating dock maritime.-Id." 20 (N.Y.) Maritime torts not subject to state Compensation Act.-Butler v. Robins Dry Dock & Repair Co., 147 N. E. 235. Injury to workman repairing vessel in dock held within admiralty jurisdiction.--Id. 147 N.E.-59 ANIMALS. See Carriers, 218-228. 67 (Ohio) Owner responsible for negli gence in keeping.-Drew v. Gross, 147 N. E. 757. 74 (8) (Ohio) Negligence of owner of horse in field adjacent to highway held for jury.Drew v. Gross, 147 N. E. 757. (929) |