2. Pursuant to an act of the general assembly, the state, in 1847, conveyed the Wabash & Erie Canal and its feeder lands to trustees, who were empowered to sell the property to carry out the trust, and the act declared that the trustees should erect and keep in good repair bridges over all state or county roads crossing, or that might thereafter cross, said canal. Held, that where defendant had purchased of the trustee a feeder of the canal and a bridge over such feeder, and the bridge, being a part of a county road, became unsuitable for use, and the county, having repaired the same, sued defendant for the amount of such repairs, and the complaint in such action alleged it defendant's duty, under Act Jan. 27, 1847, to properly maintain said bridge, but did not allege the highway to have been constructed before the canal, the complaint was demurrable, since at common law, if a highway be located across an existing waterway, the public must maintain the bridge, and, the trustees having the right to dispose of the property free from the trust, the duty to maintain the bridge was not a covenant running with the land, nor a condition attached to the fee; the statute not declaring a forfeiture in case of failure of the trustees to maintain bridges.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Action by board of commissioners of Allen county against the Ft. Wayne Water-Power Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

R. S. Taylor and Breen & Morris, for appellant. W. G. Colerick, for appellee.

HENLEY, J. This cause is here for the second time. The opinion upon the former appeal is found in Board of Com'rs of Allen Co. v. Ft. Wayne Water-Power Co., 17 Ind. App. 36, 46 N. E. 36. Appellee was the plaintiff below, and recovered a judgment against appellant for $1,400.49. The complaint is in one paragraph. The averments of the complaint are, in substance, that appellant is a corporation, having for its object, among other things, to furnish motive power for all kinds of manufacturing, mining, and chemical purposes; that on the 15th day of October, 1888, appellant, for the purpose of carrying on said business, purchased one of the feeders of the Wabash & Erie Canal in Allen county, Ind., and that water required and used by appellant in its business is kept constantly flowing through said feeder; that at the time appellant purchased and went into possession of said feeder there was a bridge across it, which constituted a part of a highway in said Allen county, and that said highway then was, and still is, a county road; that said bridge is, on account of the existence of said feeder, an indispensable part of said highway; that by the provisions of an act of the general assembly of the state of Indiana approved January 27, 1847, it was made the duty of the trustees of the Wabash & Erie Canal to erect and keep in repair suitable bridges over all state and county roads crossing or that might thereafter cross said Wabash & Erie Canal; that

the duty so imposed on said trustees has devolved upon appellant ever since it became the owner of said feeder, and is a burden which appellant must bear by reason of its purchase of said feeder; that appellant failed to discharge the duty as imposed upon it, and allowed said bridge to become out of repair in such a way as to render it a public nuisance, and its use by the public, as a part of said highway, unsafe and dangerous, by reason of which it became the duty of appellee to cause said bridge to be repaired; that appellee, in the performance of its said duty, on the 9th day of September, 1893, at a regular session, adopted, and caused to be spread upon its records, an order directed against appellant to construct, within a reasonable time, a suitable bridge over and across said feeder at the crossing of said highway, and that upon appellant's failure to do so, appellee would cause said bridge to be rebuilt; that a certified copy of said order was served upon appellant, but that appellant failed and refused to comply with the same; and, after a reasonable time had elapsed after the service of said order upon appellant, appellee did, in the performance of its duty, cause a new bridge to be constructed over and across said feeder at said place, and incurred an expense thereby of $1,156; that appellee demanded said sum of appellant, but appellant refused to pay the same, and said amount, with interest, is demanded. Appellant's demurrer to this complaint was overruled, and this action of the lower court is assigned as error here.

Upon the former appeal in this case the complaint was held sufficient to withstand a demurrer, the judgment was reversed, and the cause remanded. The law in this state is well settled that the principles of law established on the former appeal, so far as applicable, remain the law of the case through all its subsequent stages, and must be adhered to, whether right or wrong, not only in the trial court, but in this court, on a second or any subsequent appeal; and, where the sufficiency of a pleading has been passed upon by this court, that ruling will be adhered to on a second appeal, unless the pleading has been materially amended. James v. Railway Co., 148 Ind. 615, 48 N. E. 222; Lillie v. Trentman, 130 Ind. 16, 29 N. E. 405; Board of Com'rs v. Bonebrake, 146 Ind. 311, 45 N. E. 470. In the last case cited the question is fully discussed, and a great many authorities are collected. Such being the rule, the first question to consider is whether or not the complaint in this case, as it now comes to us, materially differs from the complaint upon the former appeal. The averments of the complaint on the former appeal were in all respects the same as the complaint now appears, except that upon the former appeal the complaint contained the additional averment, viz. that the highway in question existed prior to the construction of the canal. When the cause was remanded, the com

plaint was amended by striking out the abovementioned averment, and the complaint is now submitted to this court for consideration with said averment omitted. The decision of the court upon the former appeal was based upon the complaint as it then appeared. The court did not and could not decide any questions which were not before it. What the court said, if anything, as to the sufficiency of a pleading different from the one at that time under consideration, was not necessary to the decision of the question then before the court, and is not the law of the case. The complaint upon the former appeal was held sufficient. The conclusion was based upon the complaint as it then stood. It is clearly evident from the concluding statement in the opinion that the court considered the averment that the highway was older than the canal as a material averment of the complaint. The court said: "In view of the language of the acts of 1846 and 1847, and the obligations imposed by the common law, with the averment in the complaint that the highway was older than the canal, there is nothing inconsistent in these decisions with the conclusion that the burden of maintaining the bridge in question is upon appellee." Board of Com'rs of Allen Co. v. Ft. Wayne Water-Power Co., supra. The rule at common law, expressly recognized in the former opinion, is that when a way of any kind is laid across an existing highway, and a bridge is necessary for the continued and proper use of the highway, the party locating the way last in point of time is bound to build and maintain the bridge; but, if a highway is located across an existing way of any kind, the public must build and maintain the bridge. Morris Canal & Banking Co. v. State, 24 N. J. Law, 62.

The complaint, then, with the averment in question omitted, is insufficient unless other facts are averred which impose upon appellant the duty of maintaining the bridge. The state of Indiana acquired a fee-simple estate in the lands taken possession of, occupied, and used by the state's commissioners in the construction of the Wabash & Erie Canal. Water-Works Co. v. Burkbart. 41 Ind. 364; Cromie v. Board of Trustees, 71 Ind. 208; City of Logansport v. Shirk, 88 Ind. 563. The fee-simple title was conveyed by the state to certain trustees. and among the duties imposed upon said trustees was that of erecting and keeping in good repair certain bridges. The language of the act was as follows: "And be it further enacted that the said trustees shall erect, construct and keep in good repair, suitable bridges over all state and county roads, crossing or that may hereafter cross said Wabash and Erie Canal." Laws 1847. p. 33, § 30. Can it be said that the duty imposed upon the trustees to construct and repair bridges was a condition upon which they held the property, and that such condition is a covenant running with the land? We think not. It was held in French v.

Gapen, 105 U. S. 509, 26 L. Ed. 951, that the trustees could sell and exhaust the property to create funds to carry out the purposes of the trust. We must conclude, then, that, the trustees having the right to dispose of the trust estate, the purchasers took the property free from the trust, and free from any of the duties imposed upon the trustees. The duty of the trustees to build bridges and keep them in good repair at places where highways might thereafter cross the canal cannot be construed as a covenant running with the land, nor can it be considered as a condition attached to the fee. A covenant to do a thing not in esse, but which is to be done upon the land, does not bind the assignees or grantees unless specifically named, and hence could not run with the land. Hartung v. Witte, 59 Wis. 285, 18 N. W. 175; Bronson v. Cotlin, 108 Mass. 185; Petroleum Co. v. Weare, 44 Ohio St. 604, 9 N. E. 845; Railway Co. v. Smith, 72 Tex. 122. 9 S. W. 865, 2 L. R. A. 281. And the duty imposed upon the trustees cannot be held to be a condition attached to the fee because the breach of such a condition would subject the estate held by them to forfeiture. There is nothing in the statute directing the conveyance from which it could be inferred that the estate granted was to be enlarged or defeated, or in any way affected, by the duties which the statute imposed upon the trustees. It must necessarily follow, then, that when the fee-simple title to the real es tate passed out of the state, and out of the trustees, and the canal ceased to be used for the purposes for which it was constructed, the duties imposed upon the trustees were ended, and the income from the property necessary to the performance of such duties as the construction of bridges failed. The purchaser of the fee only assumed such burden as the law cast upon the land. The commonlaw rights as they existed at the time the canal was constructed apply as between the appellant and the appellee. The complaint is insufficient. Judgment reversed, with instructions to sustain the demurrer to the complaint.

(25 Ind. App. 175)

MASTEN . INDIANA CAR & FOUNDRY

CO.1

(Appellate Court of Indiana. April 18, 1900.) DEFAULT JUDGMENT-VACATION-AFFIDAVITS -SUFFICIENCY EFFECT ATTORNEY

GENERAL-PRIVATE PRACTICE.

1. Where no objection is made to the enti tling of a motion to vacate a judgment and affidavits as of the original cause in the trial court, the question cannot be raised on appeal.

2. An objection that an order vacating a default judgment was improperly made, on the ground that the affidavits in support of the motion did not state a cause of action. could t be considered on appeal, where it appeared that the motion and affidavits were not treated by the trial court as pleadings, but as evidence.

3. Where an affidavit of defendant's attorney in support of a motion to vacate a default judgment showed that at the time the default was taken the attorney represented defendant

in the matter in controversy, and that he had been employed three months before to attend to the action, if brought, such affidavit showed that the default judgment was not proximately caused by defendant's negligence.

4. Horner's Rev. St. 1897, § 396, providing that the court shall relieve one against whom a judgment has been taken by his mistake, inadvertence, surprise, or excusable neglect, does not require that, on a motion to set aside a default judgment on the ground of excusable neglect, the affidavit in support thereof should set out the original cause of action, but merely the nature of it, and the facts constituting the defense; and hence, the court not being required to inquire into the merits of the action, counter affidavits as to facts relied on as a defense are not admissible.

5. An affidavit of defendant's attorney in support of a motion to vacate a default judgment showed that the attorney received by mail a copy of the summons in the action, and intended to send it to his private office, asking his assistants to attend to the case, but that the summons was kept on his desk, and, by carelessness of some one unknown to defendant, became covered with other papers, and that affiant supposed he had sent the paper to his assistants, and acted on that belief until he learned that a default judgment had been entered. Held, that a vacation of the judgment would not be disturbed on appeal, since, as there was some evidence to support the court's conclusion, the decision, being on a question of fact, could not be reviewed, in the absence of an abuse of discretion.

6. There is no constitutional or statutory inhibition against the attorney general of the state engaging in private practice during his term of office, and hence the fact that the attorney for defendant, prosecuting a motion to set aside a default judgment, was the attorney general, was immaterial.

7. Code 1852, § 99, provided that the court might, in its discretion, allow a party to file his pleadings after the time limited therefor, and. at any time within a year, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. Burns' Rev. St. 1894, § 399, provides that the court shall relieve a party from a judgment taken against him through mistake, inadvertence, surprise, or excusable neglect. Held, that section 399 did not entirely take away the discretion to grant relief from a default judgment, as given by Code 1852, § 99.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Action by John F. Masten against the Indiana Car & Foundry Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

John B. Sherwood, for appellant. Wm. A. Ketcham and F. E. Matson, for appellee.

ROBINSON, J. On May 29, 1896, at the May term of the Marion superior court, appellant obtained a judgment by default against appellee. At the next term, June 8, 1896, appellee moved to set aside the default and vacate the judgment, and with its motion filed the affidavit of its attorney, Mr. Ketcham, as to excusable neglect, mistake, and inadvertence, and the affidavit of its general manager, Mr. Frazier, as to a meritorious defense to the original suit. Appellant appeared and filed the counter affidavit of his attorney, Mr. Sherwood, in denial of appellee's right to the relief asked. Upon the hear

ing the default was set aside and appellee permitted to answer, and an answer in general denial was then filed. Time was given to file a bill of exceptions, which was done. An appeal to this court from the order setting aside the default and vacating the judgment was dismissed March 30, 1898. Masten v. Foundry Co., 19 Ind. App. 633, 49 N. E. 981. The record then recites that (May 24, 1898): "Come the parties, and this cause being called for trial, and the plaintiff declining and refusing to introduce any evidence, the court finds for the defandant. It is therefore considered, adjudged, and decreed by the court that the plaintiff take nothing by this action, and that the defendant recover of the plaintiff its costs, taxed at dollars." Ap

pellant assigns as error that appellee's motion and the affidavits in its support do not state facts sufficient to constitute a cause of 'action, that the court erred in sustaining the defendant's motion to set aside the default and judgment, and that the court erred in rendering final judgment for the appellee.

The motion and the affidavits and the counter affidavit are entitled as of the original case. As no objection was made to this in the court below, and as the matter was disposed of upon its merits, without objection to the form of the proceedings, no such question can be raised now, even conceding, without deciding, that it might have been successfully raised below. Beatty v. O'Connor, 106 Ind. 81, 5 N. E. 880. To the statute (Burns' Rev. St. 1894, § 644; Horner's Rev. St. 1897, § 632) permitting appeals from final judgments only there are certain exceptions. Burns' Rev. St. 1894, § 658 (Horner's Rev. St. 1897, § 646). It was held that the former appeal (19 Ind. App. 633, 49 N. E. 981) did not come within the exceptions, and that the judgment from which an appeal may be taken must make a final disposition of the cause. If the motion and affidavits are to be disposed of "in a summary manner upon the affidavit and the facts within the knowledge of the judge" (Ratliff v. Baldwin, 29 Ind. 16), we do not think the statute contemplates anything in the way of pleadings. A counter affidavit is not an answer, in the sense of pleading. The motion and affidavits do not attempt to state any cause of action. The whole purpose of the proceeding is not that the judgment may be adjudged null and void, but that the default may be set aside, and the party be permitted to interpose a defense to the action. The moving party is not asking for a judgment, and a judgment of any kind in his favor does not necessarily follow, if he is successful. A demurrer to the motion and affidavits for want of facts would have amounted simply to a submission of the motion and affidavits to the court for a hearing on the facts therein set out. In the case at bar the proceeding was a motion supported by two affidavits. Appellant appeared in response to notice, and filed a counter affidavit, and upon these the matter was submit

ted and determined. As said by the court in Brumbaugh V. Stockman, 83 Ind. 583: "Whether the proceeding be by complaint or motion, it must be determined in a summary manner. No pleadings are contemplated, beyond the complaint or motion. Buch v. Havens, 40 Ind. 221; Lake v. Jones, 49 Ind. 297; Nord v. Marty, 56 Ind. 531. Upon a complaint, the evidence may consist of affidavits, depositions, or oral testimony, but a motion is still properly heard on affidavits only, although, in the discretion of the court, oral testimony may be heard, also; counter affidavits being admissible on the point on which relief is sought, but not as to the cause of action." Had a demurrer been filed, the sufficiency of the motion and affidavits might have been tested. Thompsor v. Harlow, 150 Ind. 450, 50 N. E. 474; Durre v. Brown, 7 Ind. App. 127, 34 N. E. 577. The motion and affidavits must be considered as a whole. It does not appear that they were submitted to the court as a pleading. Appellant appeared and filed a counter affidavit, and submitted the issues presented by the several affidavits, not as a matter of pleading, but of evidence. Whether the statute does or does not contemplate any pleading "beyond the complaint or motion," as indicated by the above authorities, we think it not an unsafe rule to hold that, if such an application is not treated as a pleading in the trial court, it cannot be thus questioned on appeal. As the questions argued may all be properly considered under the second assignment, it is not necessary to further notice the first.

It is argued that the affidavit of Mr. Ketcham shows that, when appellee was served with summons, it gave no attention to defending the action. In answer to this it is enough to say that the affidavit clearly shows that, when the default was taken, Mr. Ketcham represented appellee as its attorney in the matter in controversy, and that the relation of attorney and client existed. From the facts set out in the affidavit, it is clear that appellee had a right to rely upon his attention to the cause. That the negligence of an attorney is the negligence of his client is well settled. It is shown that he was employed three months before suit was brought to defend the action, if brought, and was told by appellee to appear and defend in the event any action was brought, and that he investigated the matter before suit was brought, and reported the result of his investigation to appellee. It is evident from all the facts that the default judgment was not proximately caused by appellee's negligence. The statute does not require that the motion and affidavits should set out the original cause of action, but simply the nature of it. The facts constituting the defense must be shown, but it is necessary to state only the nature or character of the original action. In passing upon such an application the court will not inquire into the merits of the original action, and for this reason counter affidavits as to

the alleged facts relied on as a defense are not admissible. Dobbins v. McNamara, 113 Ind. 54, 14 N. E. 887; Buck v. Havens, 40 Ind. 221; Nord v. Marty, 56 Ind. 531. From the motion and affidavits, it is clear the original action was by appellant against appellee for personal injuries. Durre v. Brown, 7 Ind. App. 127, 34 N. E. 577; Wills v. Browning. 96 Ind. 149. Some confusion arises from the fact that the affidavits and counter affidavits refer to the complaint, and it, with the answer, is set out in the transcript. They necessarily came before the trial court at some stage of this proceeding, for the reason that the final judgment rendered could not have been rendered without them. But, in any event, there is enough in the affidavits themselves to show the nature of the original action, and that appellee had a meritorious defense.

The principal question in the case is whether there is a showing of mistake, inadvertence, or excusable neglect. The affidavit of Mr. Ketcham shows, among other things, that during the time in question he was attorney general of the state, and sets out the particular public duties in which he was at the times in question constantly engaged, and which called him away from his office on the three days following the 8th day of May; that he maintained a private office, where he kept assistants, to whom it was his universal custom to refer matters of entering appearances and filing pleadings in his private practice, and to whom was left the duty of attending to all matters connected with cases pending in court up to the time of the actual trial; that on May 8th he received a letter inclosing a copy of the summons, and intended to send them to his private office, asking his assistants to attend to the case, as was his custom in such matters; that he did not send the letter and summons, but left them on his desk, where, either by the carelessness of the janitor or of some one unknown to the affiant, they became covered up with other papers, and thenceforth escaped his attention; that affiant supposed he had sent the papers to his assistants, and acted upon that belief until June 4th following, when his attention was called to the fact that no appearance had been entered, and that judg ment had been taken by default; that he immediately investigated the matter, and then learned that he had not sent to his private office the letter and summons, but that they still remained on his desk, under some papers of matters that had been disposed of, and that were not requiring attention. It is also shown that the application is not made for delay, but for the purpose of being permitted to defend the action, and that upon a hearing appellee will show there is no liability against it as stated in the complaint. While the counter affidavit does not, in terms, contradict any particular averment contained in the affidavits in behalf of appellee, yet it is in conflict with the showing

made by them, and is intended to controvert facts tending to show excusable neglect, mistake, and inadvertence. In such cases the affidavits partake of the nature of depositions and parol testimony, and not of the nature of documentary evidence, and the rule applied to parol testimony must be applied to them. The court's conclusion will not be disturbed if it is supported by any evidence, and, unless there is a clear failure to prove, it must stand. Nash v. Cars, 92 Ind. 216; Carter v. Glass Co., 85 Ind. 180; Williams v. Grooms, 122 Ind. 391, 24 N. E. 158; Murrer V. Security Co., 131 Ind. 35, 30 N. E. 879; Devenbaugh v. Nifer, 3 Ind. App. 379, 29 N. E. 923; Wells v. Bradley, 3 Ind. App. 278, 29 N. E. 572.

It appears that at the time in question Mr. Ketcham was the attorney general of Indiana, and it is argued that he could not legally engage in the private practice of law during his term of office. This question cannot be thus raised by appellant, unless we could say that because of his official position a contract of private employment was void, and this we can not do. There is no constitutional or statutory inhibition against his accepting such employment. The legislature has at different times provided that certain designated public officers shall not practice law, but the attorney general is not of the number. Whatever reasons may have been in the minds of the legislators when these statutes were enacted must have been considered by them not applicable to public officers not named. We think the maxim, "Expressio unius est exclusio alterius," applies to such cases. Howe v. Mining Co., 29 Cal. 72; Hill v. Crump, 24 Ind. 291.

Whether or not the affidavits show mistake, inadvertence, or excusable neglect is a question of fact. If the term "excusable neglect" had a fixed legal meaning, the question would be different. In such case all the facts are to be considered in determining whether the one essential fact of excusable neglect is shown. The case does not rest upon a number of essential elements, the proof as to one of which there is a failure. In such case there must be evidence to show the inferential fact of excusable neglect. This evidence may be slight, but, if there is some evidence, it will control on appeal. If the evidence of the moving party shows inexcusable neglect, or if the facts are undisputed, and the conclusion to be drawn from those facts is indisputable, the question for the trial court is then one of law. But unless the court can say that there is no evidence showing excusable neglect, or that the moving party has himself shown inexcusable neglect, the question is one of fact. As we view the facts set out in the affidavits, they tend to sustain the finding of inadvertence and excusable neglect. This evidence might be differently viewed by different courts, but the question here is, was there evidence to sustain the finding? As stated

in Williams v. Grooms, 122 Ind. 391, 24 N. E. 158, "Where, upon a complaint or motion to set aside a default, affidavits and counter affidavits are heard, the settled rule is that the decision of the court will not be interfered with, in case it is supported by any evidence." What some courts have held constitutes mistake, inadvertence, or excusable neglect would in other courts be held differently; and that the question is one to be determined by the particular facts of each case is shown by an examination of the following, among a large number of cases upon the subject: Ellis v. Butler, 78 Iowa, 632, 43 N. W. 459; Heaps v. Hoopes, 68 Md. 383, 12 Atl. 882; Trust Co. v. Swan, 100 Iowa, 718, 69 N. W. 1065; Johnson v. Eldred, 13 Wis. 482; Freeman v. Brown, 55 Cal. 465; Hewitt v. Hazard (Sup.) 53 N. Y. Supp. 340; Ordway v. Suchard, 31 Iowa, 481; G. S. Congdon Hardware Co. v. Consolidated Apex Min. Co. (S. D.) 77 N. W. 1022; Brewing Co. v. Cullins, 125 Ind. 110, 25 N. E. 159; Cruse v. Cunningham, 79 Ind. 402; Green v. Stobo, 118 Ind. 332, 20 N. E. 850; Eakins v. Kemper, 21 Mont. 160, 53 Pac. 310; Griel v. Vernon, 65 N. C. 76. In Ordway v. Suchard, supra, the action of the trial court refusing to set aside a default was reversed, where it was shown that the failure of the attorney to answer in time resulted from the accidental misplacing of the papers in the case, whereby they were overlooked, and not discovered till near the close of the last term,-the same being the first term after the commencement of the suit,-and immediately on the discovery the motion to set aside the default was made, and within three or four days after the default was taken.

Appellant's counsel argues that the cases of Kreite v. Kreite, 93 Ind. 583, and Railroad Co. v. Flinn, 2 Ind. App. 55, 28 N. E. 201, are decisive of the case at bar. But each of these cases, as are all cases of this character, was decided upon its own particular facts, and an examination of them will show that the facts in neither of them are similar to those in the case at bar. In the Kreite Case, appellant was sued, process returnable September 9, 1882, and had employed an attorney, who appeared and pretended to set up an answer, and afterwards, September 27, 1882, knowing appellant had a valid and complete defense, and without any authority from appellant, and without his knowledge or consent, wrongfully agreed, suffered, and permitted a judgment to be rendered. Appellant did not know of such action until March 15, 1883, when execution was issued. On appeal the action of the trial court refusing to set aside the judgment was affirmed. The opinion intimates that appellant's remedy was against the attorney, and not to be relieved from the judgment. In the Flinn Case the appellate court affirmed the trial court's action refusing to set aside the default. The default in that case resulted really from a mistaken impression on the