Action for the price of goods by the Sattley Manufacturing Company against Philip M. Hildebrand, trustee, and others. From a judgment in favor of plaintiff and against defendant Hildebrand severally, he appeals. Affirmed.

Hammond & Rogers, for appellant. Gavin & Davis, for appellee.

ROBINSON, C.J. The special finding shows these facts: On January 7, 1896, under a written contract that day made, the firm of Beals & Orr ordered of appellee certain goods; the firm agreeing "to hold all goods and the proceeds of all sales of goods received under this contract, whether the proceeds are in notes, cash, or book accounts, as collateral security in trust and for the benefit of, and subject to the order of, the Sattley Manufacturing Company, until we have paid in full, in cash, all our obligations due the said Sattley Manufacturing Company." Pursuant to the contract, appellee delivered to the firm certain goods. Afterwards, September 14, 1896, the firm executed and delivered to appellant, as trustee, a mortgage, which was duly recorded, and the firm put appellant in possession of all the property mentioned in the mortgage. Appellant obtained the mortgage and possession of the property for the purpose of the trust expressed in the mortgage, without any notice or knowledge on his part of the contract between appellee and the firm of Beals & Orr, and to secure indebtedness theretofore incurred by the firm in purchase of goods from creditors therein named, in the ordinary course of business. Among the property covered by the mortgage, and which passed into the possession of appellant, was an amount against George Anthony, upon the books of the firm, for $122.97, which has not been paid, and the consideration for this amount was merchandise which appellee had delivered to the firm, and which the firm had received pursuant to the written contract, and which the firm had afterwards sold and delivered to Anthony. Among the property mortgaged, and which passed to appellant thereunder, were other amounts on the firm's books, aggregating $188, and the consideration for which was merchandise which appellee had delivered to the firm under the written contract, and which the firm had afterwards sold; and, after the execution and delivery of the mortgage, appellant collected $188,-part before and part after this suit was begun, and after appellant had notice of the existence of the written contract. Under the written contract, appellee delivered to the firm goods amounting, in principal and interest, to $747.45. Deducting $188 and $122.97, there is yet owing appellee from the firm $436.48. As conclusions of law, the court found that under the written contract between appellee and the firm of Beals & Orr the legal title to and ownership of all goods delivered by appellee to the firm, as also the title to and

ownership of the proceeds of sale thereof, were reserved to and remained in appellee; that appellant has, in collecting the $188, collected so much money rightfully the money of appellee; that Anthony is rightfully indebted to appellee in the sum of $122.97, and not to appellant; and that the firm of Beals & Orr owes appellee $436.48. Judgment was entered that appellee recover from George Anthony $122.97 and after-accrued costs, that appellee recover from appellant $188 and costs, and that appellee recover from Nathan Beals and William A. Orr $436.48, with costs.

Appellee moved to dismiss the appeal on the ground that Nathan Beals, William A. Orr, and George Anthony are co-parties of appellant in the judgment from which this appeal is prosecuted; that no notice has been served on them, nor have they joined in, or been made parties to, this appeal. The consideration of this motion was postponed until final hearing. Afterwards the supreme court, where the appeal was then pending, sustained a motion to transfer the cause to this court. This is not a term-time appeal. The statute provides that a part of several coparties may appeal, and must serve notice of the appeal upon all the other co-parties. Rev. St. 1894, § 647. The word "co-parties," as used in this section, means parties to the judgment appealed from, and not co-plaintiffs or co-defendants. Hadley v. Hill, 73 Ind. 442. In the case at bar the judgment is several, and not joint. There are no co-parties to the judgment appealed from. The matter determined by this appeal cannot be the subject of controversy between appellant and the other defendants. Appellant's co-defendants cannot be affected by the payment or cancellation of the judgment appealed from. Whether appellant succeeds or fails in this appeal, the several judgments against the other defendants will stand. The reason underlying the rule that co-parties not joining in an appeal must have notice of the appeal is that the court may have jurisdiction of all parties interested in the subject-matter of the appeal, and settle in one appeal all the rights of such parties as have an interest in the subject of the controversy. But, when a party appeals from a several judgment rendered against him alone, no co-party has any interest in the subject-matter of the appeal, and the reason for the above rule fails. Elliott, App. Proc. §§ 138, 139, 141; Larsh v. Test, 48 Ind. 130.

Appellant excepted to the conclusions of law as follows: "To which conclusions of law the defendant, Philip M. Hildebrand, trustee, now here, at the time excepts." This alone is assigned as error. This exception is to the conclusions of law jointly, and, if any one of them is right, the exception must fail. Royse v. Bourne, 149 Ind. 187, 47 N. E. 827; Evansville & T. H. R. Co. v. State, 149 Ind. 276, 49 N. E. 2; Kline v. Board, 152 Ind. 321, 51 N. E. 476; Heaston v. Board, 153 Ind. 439, 53 N. E. 837. The conclusion of law that Beals & Orr owed appellee a certain sum was right.

If the title to the goods when sold to the firm under the contract remained in appellee, it could not both claim title to the goods and sue the firm for the price, so long as the goods remained in the possession of the firm; but when the firm converted the goods, by selling them and parting with the possession, appellee could sue for their value. And if the title passed to the firm when it bought the goods under the contract, and they had not been paid for, appellee might sue for the price. So that, in either event, upon the findings, the conclusion of law that a certain

LAKE ERIE & W. R. CO. v. MILLER. (Appellate Court of Indiana. May 29, 1900.) RAILROADS-FIRES-COMPLAINT SUFFICIENCY-VERDICT-SPECIAL FINDINGS-EVIDENCE

-HARMLESS ERROR-CROSS-EXAMINATIONCONTENTS OF RECORD-CONSIDERATION OF ERROR.

1. Where a complaint alleged that a railroad so negligently conducted its engine that it fired thick grass on its right of way adjacent to plaintiff's property, and negligently let the same spread to such property, causing damage without fault of plaintiff, it sufficiently stated a cause of action.

2. Where damages were claimed against a railroad for causing a fire on its right of way, and negligently permitting it to escape, and the evidence supported special findings that the fire originated on such right of way from sparks from an engine, and escaped from the right of way, a general finding for the plaintiff was in harmony with such special findings.

3. Where damages were claimed for negligence of a railroad in permitting a fire caused by it to escape from its right of way, evidence as to other fires along such right of way, and the condition of the grass at the time thereof, was immaterial.

4. Where there was abundant competent evidence to support a verdict, the admission of incompetent immaterial evidence was harmless

error.

5. Where a witness on direct examination testified that he had seen a fire on a railroad right of way, and the section men trying to keep it from spreading, and had afterwards talked to them, but was not asked about any conversation, it was not proper, on cross-examination, to ask such witness if he said anything to them about what he had seen.

Appeal from circuit court, Jay county; John M. Smith, Judge.

Action by Alby D. Miller against the Lake Erie & Western Railroad Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

J. J. M. La Follette, J. F. La Follette, and O. H. Adair, for appellant. Thomas Bosworth and S. W. Haynes, for appellee.

WILEY, J. Appellee sued appellant to recover damages for property alleged to have been destroyed by fire resulting from appellant's negligence. The complaint was originally in three paragraphs, but before the

conclusion of the trial appellee dismissed his second paragraph of complaint. Appellant answered by general denial. A trial by jury resulted in a general verdict for appellee, and with their general verdict the jury answered, and returned interrogatories submitted to them. Appellant's motion for a new trial was overruled, and judgment for appellee was entered.

But two questions are discussed by appellant: (1) That the third paragraph of complaint does not state facts sufficient to constitute a cause of action; and (2) that the court erred in overruling the motion for a new trial.

By an answer to an interrogatory, it is shown that the jury rested their verdict on the third paragraph of complaint. That part of the third paragraph charging negligence on the part of appellant is as follows: That "defendant, by its servants and employés, so negligently and carelessly conducted the running of its locomotive or engine by and along the line of plaintiff's said land that said engine fired the thick and high grass on defendant's right of way, and said company negligently let the same spread to plaintiff's bluegrass pasture adjoining said right of way, and burned over some thirty acres of plaintiff's land, and burned and destroyed fences for plaintiff, * * and cord wood * and growing timber," etc., "all of the aggregate value," etc. The complaint avers that the damage to his property was without any fault on his part. It seems to us that this paragraph of complaint proceeds upon the theory that appellant's negligence consisted in permitting the fire to escape from its right of way upon appellee's premises, by which his property was injured and destroyed. Appellant had a right to set fire to the combustible matter on its right of way, but it was bound, at its peril, to keep such fire within the limits of its right of way. Railroad Co. v. Overman, 110 Ind. 538, 10 N. E. 575. Its negligence consisted in permitting the fire to escape to the adjoining premises of appellee, and for the injury resulting from such negligence it is answerable in damages. In Railroad Co. v. Clark, 7 Ind. App. 155, 34 N. E. 587, this court said: "If appellant set fire to the dry grass and other combustible materials which it had negligently suffered to accumulate on its track and right of way, and without fault on appellee's part negli gently permitted such fire to escape to his lands, and burn and destroy his property, appellant would be liable to appellee for his damages, whether such fire was started negligently or otherwise." In the case of Railroad Co. v. Bailey, 19 Ind. App. 163, 46 N. E. 688, it was held that where a railroad company negligently permitted combustibles to accumulate and remain on its right of way, and set fire thereto, and the fire escaped to the property of an adjoining landowner, and destroyed his property, without his fault or negligence, such railroad company would be

liable for the resulting damages, although it used all proper precautions to prevent the escape of fire from its locomotive. See, also, Railroad Co. v. Jones, 86 Ind. 490; Railroad Co. v. Overman, supra; Railroad Co. v. Hart, 119 Ind. 273, 21 N. E. 753, 4 L. R. A. 549. Under these authorities, we must hold the third paragraph of complaint good.

Appellant based its motion for a new trial upon 18 reasons. We will dispose of the several questions thus raised in the order in which they are discussed.

The first three reasons for a new trial question the sufficiency of the evidence to support the verdict. Before proceeding to the consideration of the question thus raised, it is proper to state the facts specially found. In brief, they are as follows: That the fire referred to in the complaint originated on appellant's right of way; that the fire was started from sparks from a passing engine on appellant's road; and that the fire thus set escaped from the right of way. Other facts were specially found, but they are not pertinent to the question under consideration. There is evidence in the record from which the jury were authorized to return a general finding for appellee, and which abundantly supports every fact specially found. This being true, we cannot disturb the verdict and Judgment on the evidence.

The fourth reason for a new trial is that the court erred in overruling appellant's motion for judgment on the interrogatories notwithstanding the general verdict. If there is such a motion in the record, a most diligent search has failed to disclose it, and counsel have not called our attention to the record where it may be found. But, if such a motion is in the record, it was not error to overrule it. The answers to interrogatories are not in irreconcilable conflict with the general verdict, but, on the contrary, are in harmony with it.

The fifth to the sixteenth reasons for a new trial, except the ninth, challenge the action of the court in admitting, over appellant's objection, certain evidence, and in refusing to strike out such evidence. All the evidence thus objected to had reference to other fires along appellant's right of way prior and subsequent to the one which destroyed appellee's property, and the condition of the grass on the right of way at or near where such fires occurred. Appellee seeks to sustain the action of the trial court in admitting such evidence by the rule laid down in the line of cases holding that evidence of other fires is competent in actions for damages done by fire escaping from the right of way of a railway company, where such fire is started by a passing locomotive, and it is shown that the same locomotive started other fires at other places at other times. In Railroad Co. v. McCorkle, 12 Ind. App. 691, 40 N. E. 26, it was held that, while a single fire occasioned by the emission of sparks from an engine may not be sufficient to establish the fact that the spark arrester was worn and de

fective, yet where a locomotive, day after day, emits fire, igniting adjacent premises for distances from 50 to 150 feet from the track, the jury may infer negligence on the part of the company with respect to such appliances. The particular negligence charged in that case was that the spark arrester and other appliances were defective, so that sparks and coals of fire would escape, and in permitting such fire to escape from the company's right of way to the adjacent premises of the appellee. The trial court permitted the appellee to prove that the same locomotive that emitted sparks and coals of fire which ignited the grass, etc., on the right of way, and spread to his property, had on other occasions, and at other places, emitted sparks and coals of fire, which had communicated fire to adjacent premises, etc. This court held that the evidence was to be considered by the jury in determining whether or not the railroad company was negligent. In Railroad Co. v. Gould, 18 Ind. App. 275, 47 N. E. 941, appellee was permitted to testify to other fires on the same day his property was destroyed, which were set out by the same locomotive. Such evidence was held competent, and in passing upon it the court, by Henley, J., said: "It would be competent as going to show either a careless operation or faulty construction of the locomotive which set out the fire which destroyed appellee's property." We think, however, that the evidence admitted over appellant's objections does not come within the rule established by the authorities cited, but rests upon entirely different grounds. We do not think the evidence complained of was competent, was not pertinent to the issues, and neither was it material. It is the established rule in this jurisdiction that the admission of incompetent evidence, which is also immaterial, is not such an error as will furnish cause for the reversal of a judgment which is supported by sufficient material evidence in the case. Railroad Co. v. Miller, 141 Ind. 533, 37 N. E. 343 (see page 562, 141 Ind., and page 352, 37 N. E.); Snell v. Maddox, 20 Ind. App. 169, 49 N. E. 856; Parmlee v. Sloan, 37 Ind. 469. In this case there was abundant competent and material evidence to support the verdict and judgment. The evidence admitted, and of which appellant complains, was incompetent, but immaterial, and hence, under the rule stated, must be regarded as harmless.

The ninth reason for a new trial is based upon the court's sustaining an objection of appellee to a question propounded to the witness Vannettan by appellant on cross-examination. This witness, with another person, was out hunting, and was near the track of appellant when the train passed which it is claimed set out the fire. His evidence shows that very soon after the train passed he discovered fire burning in a bunch of grass on the right of way. He also testified that soon after the fire began to burn the section men came, and were trying to keep it from spreading, and that during the same day he saw

the section men at the house of appellee, and talked to them. He was then asked this question, "Did you say anything to them about what you had seen?" Appellee objected to the question, and the objection was sustained. We are unable to see any error in such ruling of the court. In the examination in chief the witness was not asked any question about a conversation with the section men, and the objection was based on the ground that it was not proper cross-examination. This disposes of every question discussed by counsel for appellant. We do not find any reversible error. Judgment affirmed.

(24 Ind. App. 676)

MCKINNEY et al. v. CABELL et al. † (Appellate Court of Indiana. May 29, 1900.)

CHATTEL MORTGAGE-DESCRIPTION-AL

TERATION-HARMLESS ERROR.

1. Sustaining a demurrer to a paragraph of an answer setting up an alteration of the mortgage under which plaintiffs claim right to possession is harmless, the facts alleged being provable under the general denial.

2. A defendant in replevin cannot complain of the overruling of a motion for a new trial, the judgment being only for possession, and such defendant and her co-defendants testifying that she sold and transferred possession of the goods to them.

3. Description in a mortgage of the articles as "all sugars." etc., in mortgagor's store in B., is sufficient to put third persons ou inquiry.1

4. Description in a mortgage of the articles being "all sugars." etc., it is a material alteration to add words showing their location.

Appeal from circuit court, Lawrence county; Newton Crook, Special Judge.

Action by John M. Cabell and others against Susan F. McKinney and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Boniff & Underwood, for appellants. Thomas J. Brooks and Wm. F. Brooks, for appellees.

1A chattel mortgage specifically described the chattels, but described them as contained in a certain building, where they had not yet been put, but where they were placed before any other rights intervened. Held not to render the mortgage void. Elevator Co. v. Yates (Neb.) 77 N. W. 677.

A mortgage of a stated number of animals and their offspring of a larger herd, which does not identify the particular animals mortgaged, is not void for uncertainty, and confers on the mortgagee the right of selecting the animals from the herd. Avery v. Popper (Tex. Civ. App. 1898) 45 S. W. 951, judgment modified (Sup.) 48 S. W. 572.

A mortgage of a specific number of sheep out of a herd comprising a much larger number of sheep, which does not separate or designate the sheep mortgaged, is void for uncertainty. Jacobson v. Christensen (Utah) 55 Pac. 562.

A description of the property in a chattel mortgage which will enable a third person, aided by inquiries which the mortgage indicates, to identify the property, is sufficient. Schneider v. Anderson (Minn.) 79 N. W. 603.

A description in a chattel mortgage, wherein "a marble-top sideboard, situated in Ray county, Missouri," is pledged, will not cover a sideboard situated, at the date of the execution of the mortgage, in a distant county, though it was afterwards removed to such county. Carpet Co. v. Davis, 76 Mo. App. 512.

COMSTOCK, J. Appellees brought this action against the appellants, who were defendants below, to replevy a stock of groceries. Possession was claimed by virtue of a chattel mortgage alleged to have been executed by the appellant Susan F. McKinney, the then owner, to appellees. Appellants Herod B., Flora, Otto O., and Alice McKinney were in possession, and claimed to be the owners, at the commencement of this suit, by purchase, without notice, of appellant the mortgagee, their mother. The trial resulted in a verdict and judgment in favor of appellees for the possession of the goods. Appellant Susan F. McKinney answered in three paragraphs. The first was a non est factum. The second, a general denial. The third answered specially that, after its execution, the mortgage had been altered without her knowledge or consent, setting out the alteration. The other appellants answered separately in four paragraphs. The first, a general denial. The second, that the description of the property contained in the mortgage is indefinite and uncertain. The third, that the description of the property is insufficient; that, after the execution of the mortgage, the same was materially altered by the appellees, their agent or attorney, without the knowledge or consent of the mortgagee or the other appellants, and at the time of its execution they were creditors of Susan F. McKinney, and that they were purchasers from her for value, without knowledge of said alteration. The fourth, that the pretended mortgage under which appellee claims, and an agreement entered into at the same time between appellant Susan F. McKinney and the appellees, were made for the purpose of defrauding the appellants and other creditors of the said Susan F. McKinney.

Counsel for appellant Susan F. McKinney first discuss the action of the court in sustaining appellee's demurrer to her third amended paragraph of answer. This paragraph sets up an alteration by the appellees, without her knowledge or consent, of the mortgage in question. It alleges that at the time of its execution it contained no description of the mortgaged chattels, no amounts, number, quantity, quality, brand, or manufacture, no distinguishing marks of any kind, no location of the property, and that the instrument did not indicate or suggest the means by which the goods could have been located; that immediately following an enumeration of the articles, appellees, without the knowledge or consent of appellant, or without the knowledge or consent of any one in her behalf after the execution and recording of the mortgage, the words "in my storehouse in Bedford" were inserted. As the facts pleaded under this paragraph were provable under her general denial, this ruling of the court, if erroneous, could not have prejudiced her defense.

Counsel for appellant Susan F. McKinney next discuss the action of the court in overruling her motion for a new trial. Under

this assignment only the first, second, fifth, and sixth reasons for a new trial are discussed. The first reason is that the verdict of the jury is not sustained by sufficient evidence. The second, that the verdict of the jury is contrary to law. The fifth and sixth reasons are based upon alleged misconduct of counsel for appellee in the closing argument to the jury. As appellant Susan F. McKinney and her co-appellants testified that she sold and transferred the possession of the goods in suit to them, and as the verdict and judgment were for the possession of the goods only, there was no error in overruling the motion for a new trial of which she could complain. We therefore proceed to the consideration of the errors discussed by counsel for her co-appellants.

The first specification of error discussed in their behalf is the sustaining of appellees' demurrer to their amended second paragraph of answer. The complaint avers that on the 23d day of May, 1898, Susan F. McKinney executed the mortgage to appellees and her promissory note for $482.17, for value received, on certain property described as follows: "All sugars, teas, coffees, all canned goods, tobacco, cigars, lard, counter scale, iron safe, cash register, lamps, etc., situate in her storehouse in Bedford." The paragraph of answer in question sets up that the description of the property in the mortgage by virtue of which appellees claim possession was indefinite and uncertain, and not sufficient to bind third parties. Neither the complaint nor the answer sets out a copy of the mortgage. The complaint, however, avers that appellant "Susan F. McKinney executed a chattel mortgage on the following personal property in the city of Bedford, Lawrence county, Indiana, situate in her storeroom in Bedford." It is averred that the mortgage was recorded on the day of its execution. in the proper record of the recorder's office of Lawrence county. The answer does not allege that the mortgagor was not a resident of Bedford, Lawrence county, nor that she did not have a storehouse in Bedford. As averred, the mortgage described the place at which the chattels were located, and contained a sufficient description to put one upon inquiry as to the title of the chattels mortgaged. Koehring v. Aultman, Miller & Co., 7 Ind. App. 479, 34 N. E. 30; Ross v. Menefee, 125 Ind. 432, 25 N. E. 545; Cayford v. Brickett (Me.) 35 Atl. 1018. In this ruling of the court there was no error.

The sufficiency of the third paragraph of answer is next discussed. This paragraph sets up the same facts as the second paragraph, and, in addition, alleges that, after the execution of the mortgage, appellees, without the knowledge or consent of any one of the appellants, altered the mortgage by adding thereto the words "in my storehouse in Bedford," following the description of the property. As stated by counsel for

appellants, this paragraph presents the question as to the sufficiency of the description of the property mortgaged, raised by the second paragraph, and, in addition, that of the materiality of the alteration. As to the sufficiency of the description of the chattels, we do not deem it necessary to add anything to what we have already said. We are of the opinion that the alteration was material. Under the averments of the answer, the mortgage gave no information as to the location of the chattels, naming neither state county, town, nor building in which they were located. The alteration named the state, town, county, and building. While the description of the chattels was general in the mortgage as executed, the change definitely designated their location. It is averred that the alteration was made by appellants without the knowledge or consent of the appellees. Marcy v. Dunlap, 5 Lans. 365; Hollingsworth v. Holbrook, 80 Iowa, 151, 45 N. W. 561; Pereau v. Frederick, 17 Neb. 117, 22 N. W. 235; Kime v. Jesse (Neb.) 72 N. W. 1050.

The consideration of other questions raised by the appeal seems unnecessary. Judgment reversed, with instructions to the trial court to overrule the demurrer of appellees to the third paragraph of appellants Herod B., Flora, Otto O., and Alice McKinney's an

swer.

(25 Ind. App. 19)

PETERSON et al. v. STRUBY. (Appellate Court of Indiana. June 5, 1900.)

BILL OF EXCEPTIONS PREVIOUS GENERAL BILL FILING-EFFECT - CLERK'S INDORSEMENT SUFFICIENCY MOTION TO STRIKE FINDINGS-RULING EXCEPTION EFFECT OF APPEAL ASSIGNMENTS OF ERROR-CONSTRUCTION.

1. Where there is nothing in the record by way of entry or certificate of the clerk to show that a bill of exceptions attached thereto was filed below, except an entry of the filing of a "general" bill of exceptions four days before the bill in question was approved and signed, and a stencil file mark of the clerk on the back of the latter bill, the bill of excep tions is not in the record, and cannot be considered on appeal.

2. A motion to strike out certain findings of fact is not authorized by any rule of practice; the proper remedy, if the findings are deficient, or contrary to the evidence, being by motion for a new trial.

3. An assignment of error that the court erred in its conclusions of law, and that it erred in overruling a motion for a new trial, embraces assignments of error in sustaining motion for judgment on the findings, and error in overruling exceptions to conclusions of law and rendering judgment thereon, and error in rendering judgment against the appellant.

4. That certain special findings are inconsistent with other findings is not a reason for a new trial.

On petition for a rehearing. Denied.
For former opinion, see 56 N. E. 733.

WILEY, J. In their brief on petition for a rehearing counsel complain bitterly of the statement in the original opinion that the