(146 N. E.) cree has or has not been complied with, and In view of the fact that the record showed the defendant in such a case cannot, in de appellants to have been in possession when fense thereto, renew the contest as to title the judgment was rendered, and it not apor right of possession which has already been pearing that they had ever complied with settled. Emerick v. Miller (1902) 159 Ind. such judgment, and considering that, when 317, 64 N. E. 28.

it was demanded that they surrender pos[3] A writ of assistance is a summary pro- session in compliance with said judgment, ceeding by which a court of equity will en- they stated that they refused, and that, notforce its decree determining the title or right withstanding a vigorous resistance was made of possession of real estate, without compel to the issuing of said writ, principally on ling the party entitled thereto to resort to a the ground that the original judgment was court of law to recover the same. It being / void or erroneous, for reasons already setà summary interlocutory proceeding to be tled in the main case, and that no evidence determined by the court of equity, which was offered to the effect that they had comrendered the original decree, the parties are plied with the same, when, if such had been not entitled to a jury trial, nor to a special the fact, it would easily have been shown, finding of facts, as was requested by ap- and would have been a complete defense to pellants in this case. Section 418, Burns'. such application, we are not prepared to 1914; Hutchinson v. Trauerman (1887) 112 say that the court was not justified in findInd. 21, 13 N. E. 412; Starr v. Swain (1914) ing that appellants were in possession, and 182 Ind. 313, 106 N. E. 357.

were refusing to comply with the judgment. [4] Under the early practice in this coun All other questions which appellants seek try, where a writ of assistance was desired to raise in their brief are either involved by one entitled to possession of lands under in the questions we have discussed, or are a decree of a court of equity, the following matters that were determined by the adjudisteps were required: Service of an execu- cation in the main action, and that cannot be tion; the issuing of an order to deliver; reviewed in this proceeding. a demand, and the issuing of an attachment We find no error in the record, and the for disobeying; an injunction to enjoin the judgment is affirmed. defendants to deliver possession-and then the writ would be issued if necessary. But EWBANK, J., not participating. the modern practice dispenses with these formalities, and the writ is issued upon proof of demand of possession and a refusal. See 2 R. C. L. p. 736, and cases cited.

TALGE MAHOGANY CO. V. ASTORIA MA. (5) Appellants say that there was no evi

HOGANY CO. (No. 24404.) dence that they were still in possession of any part of the lands involved. It appears (Supreme Court of Indiana. Dec. 5, 1924.) from the record that they were in possession 1. Appeal and error 12-Adoption of one of when the original judgment was rendered,

statutory remedies for review of judgment and there is nothing in the record indicating waives other. that they have surrendered possession of the Under Burns' Ann. St. 1914. $$ 646, 672, part described in the petition for the writ Rev. St. 1881, § 616, and Acts 1913, c. 36, $ 2, of assistance. The only purpose of asking party who believes judgment erroneous may for the writ was to put appellants out of either file complaint in circuit court within possession. The evidence shows that a writ- one year, asking review of judgment, or appeal ten demand was made upon both appellants within 180 days, but adoption of one remedy

waives right to other. for possession, in compliance with the judgment, before the petition was filed, and that 2. Appeal and error en 113(2)-Expiration of William V. Rooker, one of appellants and

time to appeal before suing to review judg.

ment in circuit court, precludes appeal from attorney for both of them, answered the de

judgment in suit to review. mand by the statement, “Of course we refuse," and that the other appellant made no in suit to review judgment commenced under

Though appeal may be taken from judgment reply that the server of the demand re- Burns' Ann. St. 1914, 88 646, 672. Rev. St. called.

1881, 8 616, and Acts 1913, c. 36, § 2, before By the statement, “Of course we refuse,” expiration of time for taking appeal, expiration it was clearly meant that appellants refused of right to appeal from original judgment beto comply with the demand to surrender fore suit to review is commenced precludes possession, in compliance with said judg- appeal from judgment in review action. ment. Appellants offered no evidence upon the hearing. If appellants were not in pos

Appeal from Superior Court, Marion Counsession, they could have saved themselves ty; T. J. Moll, Judge. considerable trouble by showing such fact On petition for rehearing. Petition overto the court, but such was not even inti- ruled. mated to the court.

For former opinion, see 141 N. E. 50.

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

EWBANK, J. [1] If appellant believed the 13. Criminal law ma 14-Defendant, who comoriginal judgment erroneous it had a choice mitted act while statute forbidding it was in of remedies; either to file a complaint in the

force, could be convicted subsequent to re. circuit court within one year, asking a re

peal. view by the court of the judgment it had

Defendant, who violated Acts 1917, c. 4, § rendered, or to perfect an appeal to the Su-4, as amended by Acts 1921, c. 250, § 1, forbid preme Court within 180 days. Sections 646, intent to sell, etc., at a time when such statute

ding the possession of intoxicating liquor, with 672, Burns' 1914; section 616, R. S. 1881 ;

was in effect, could be convicted at trial, held Acts 1913, p. 65, c. 36, § 2. But the adoption subsequent to amendment by Acts 1923, c. 23, $ of one of these remedies is a waiver of the 1, repealing some of its provisions. right to prosecute the other. Traders' Ins. Co. v. Carpenter, 85 Ind. 350, 351; Harvey Appeal from Circuit Court, Clark County, v. Fink, 111 Ind. 249, 255, 12 N. E. 396; Co- James W. Fortune, Judge. hoon v. Fisher, 146 Ind. 583, 584, 44 N. E. David Lewis was charged with unlawful 664, 45 N. E. 787, 36 L. R. A. 193; Ewbank possession of intoxicating liquor. From moManual (2d Ed.) § 111.

tion quashing affidavit, the State appeals. [2] Though, where a suit to review is com- Reversed, with directions. menced before the expiration of the time allowed for taking an appeal, of course an ap- Franklin White and Dale F. Stansbury, Depu

U. S. Lish, Atty. Gen., and Mrs. Edward peal may be taken from the judgment ren

ty Attys. Gen., for the State. dered in such suit. But appellant made no choice of remedies

EWBANK, J. An affidavit was filed against until after the time allowed for taking an appeal from the original judgment had ex- appellee, which charged that on December pired, and then it prosecuted an action to 8, 1922, at a place named, he and another review the judgment in which the circuit did "unlawfully have and keep in their pos

session intoxicating liquor with intent then court had decided against it. Suffering its original right of appeal to expire before the change, give away, furnish, and otherwise

and there unlawfully to sell, barter, exsuit to review was commenced did not affect its right to prosecute, in the circuit court dispose of the same to persons to the affiant within one year, an action for that purpose, this affidavit for the alleged reasons that the

unknown." Appellee filed a motion to quash but does preclude an appeal from the circuit facts stated did not constitute a public ofcourt to this court from the judgment ren- fense, and that the affidavit did not state dered in the latter action. The petition for a rehearing is overruled. motion was sustained by the trial court. Ap

the offense with sufficient certainty, which pellee has not favored us with a brief, but the brief of appellant states that the motion was sustained on the theory that the title

of the Prohibition Law (Acts 1917, c. 4, p. STATE v. LEWIS. (No. 24590.)

15) was not comprehensive enough to em(Supreme Court of Indiana. Nov. 12, 1924.) act, as amended by section 1, c. 250, Acts

brace the provisions of section 4 of that 1. Statutes on 114(7)—Provision of Amended 1921, p. 736, forbidding the possession of inSection Prohibition Act, prohibiting posses- toxicating liquor with intent to sell, etc., in sion with intent to sell, etc., held embraced the language used in the affidavit. within title of act.

[1] The title referred to was: Title of Acts 1917, c. 4, reading "An act "An act prohibiting the manufacture, sale, prohibiting the manufacture, sale, gift, adver- gift, advertisement or transportation of intisement, or transportation of intoxicating liq, toxicating liquor except for certain purposes uor, except for certain purposes and under cer and under certain conditions.” tain conditions," held to embrace provision of section 4, as amended by Acts 1921, c. 250, $ 1,

[2] This title was sufficient to embrace the forbidding the possession of intoxicating liquor provisions in question. Zoller v. State, 189 with intent to sell, etc.

Ind. 114, 126 N. E. 2; James v. State, 188 2. Indictment and information om 110(31)-Af. Ind. 579, 125 N. E. 211; Gavalis v. State

fidavit charging possession of liquor in lan- (Ind. Sup.) 135 N. E. 147. And a charge in guage of statute held sufficient.

the language of the statute sufficiently deAffidavit charging that defendant and an- scribed the offense. Meno v. State (Ind, other did "unlawfully have and keep in their Sup.) 142 X. E. 382. possession intoxicating liquor with intent then

[3] The fact that before this cause came and there unlawfully to sell, barter, exchange,

on for final action by the trial court the give away, furnish, and otherwise dispose of the same to persons to the affiant unknown,” being said act of 1921 had been amended by sec. in the language of Acts 1917, c. 4, § 4, as

tion 1, c. 23, Acts 1923, p. 70, which does not amended by Acts 1921, c. 250, § 1, held suffi- make it a public offense to have possession cient.

of intoxicating liquor with intent to sell,

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


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(146 N.E.) etc. (Walker v. State [Ind. Sup.) 142 N. E., 4. Intoxicating liquors em 209–Statutes om 16), was not cause for quashing the indict 114(6)-Body of act prohibiting possession of ment. The offense being alleged to have been

still for manufacture of "iquor" held not committed on December 8, 1922, when the

broader than title; act prohibits possession act of 1921 was in force, its subsequent

of still for manufacture of "intoxicating liq

uor," and sustains indictment therefor. amendment so as to repeal some of its provisions could not shield appellant from pros. manufacture of “intoxicating liquor,” body of

Though title of Acts 1921, c. 250, refers to ecution for an offense committed while it Act prohibiting possession of still for manufacwas in force. Section 248, Burns 1914; secture of "liquor" without limiting it to intoxition 248, R. S. 1881; State v. Wells, 112 Ind. cating liquor, is not broader than the title, but 237, 243, 244, 13 N. E. 722; Heath v. State, the statute prohibits possession of still for 173 Ind. 296, 298, 90 N. E. 310, 21 Ann. Cas. manufacture of "intoxicating liquors," and an 1056; Burk v. State, 185 Ind. 47, 49, 113 indictment charging that still was kept for N. E. 295.

manufacture of "intoxicating liquor" The judgment is reversed, with directions proper. to overrule the motion to quash the affida- 5. Indictment and information om 110(31)-Invit, and for further proceedings.

dictment in language of statute held sufficient.

An indictment charging defendant with possession of still for manufacture of intoxicating

liquor “intended for use in violation of the laws STATE of Indiana Oscar' MORROW.

of this state,” it being in language of statute STATE of Indiana v. Leslie WALDECK. (Acts 1921, c. 250), which defines the crime, STATE of Indiana v. Edward STOLL.

held sufficient. (Nos. 24591-24593.)

6. Statutes em 109—Only subject of act need (Supreme Court of Indiana. Nov. 12, 1924.)

be expressed in title.

It is only subject of act that needs to be Appeal from Circuit Court, Clark County; expressed in title and not matters properly conJames W. Fortune, Judge.

nected therewith. U. S. Lesh, Atty. Gen., and Mrs. Edward F. 7. Statutes em 114(6)-Prohibiting possession White and Dale F. Stansbury, Deputy Attys. of still for manufacture of intoxicating liqGen., for the State.

uors held within title of act prohibiting man. Stotsenburg, Weathers & Minton, of New Al ufacture of intoxicating liquors. bany, for appellee Waldeck.

Title of Acts 1921, c. 250, “Prohibiting the manufacture

of intoxicating liquor," PER CURIAM. Upon the authority of State etc., held sufficient to include the prohibiting of v. Lewis (No. 24590, at this term) 145 N. E. possession of a still for the manufacture of in496, the judgment in each of the above cases is toxicating liquor. reversed, with directions to overrule the motion to quash the affidavit in each case, and for fur Appeal from Circuit Court, Ripley County; ther proceedings.

Albert B. Wycoff, Special Judge.

Robert F. Cyrus was convicted of unlawfully possessing a still for the manufacture

of intoxicating liquors, and he appeals. AfCYRUS V. STATE. (No. 24492.)


P. E. Bear, of Madison, for appellant. (Supreme Court of Indiana. Nov. 13, 1924.)

U. S. Lesh, Atty. Gen., and Wm. M. Tur1. Statutes w211=-Both title and body of act ner, of Osgood, for the State. considered in construing it.

In construing statutes, court looks to both GAUSE, J. Appellant was convicted under title and body of act, and title considered in an indictment returned September 14, 1922 construing body, and whole act construed to- which charged him with unlawfully possess gether.

ing a still for the manufacture of intoxicat. 2. Statutes 183Strict letter yields to ob- ing liquor for use in violation of the laws of vious intent.

this state. The indictment was predicated In construing statutes, object is to discover upon the statute as it existed at the time intention of Legislature and strict letter must (Acts 1921, p. 736; section 8356d, Burns' yield to obvious intent.

Supp. 1921). "The part of said statute relat. 3. Statutes 184—General meaning of words ing to the possession of stills, etc., has been restricted to effectuate manifest purpose.

superseded by Acts 1923, p. 107.) The title While intention of Legislature must be as

of the act upon which the indictment was certained from language used, yet, where in- predicated stated that it was an act to amend tent clearly appears, courts may restrict gen- certain sections of an act entitled, "an act eral meaning of words to effectuate manifest prohibiting the manufacture

of purpose of statute.

intoxicating liquor," etc.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
145 N.E.-32

The part of said act applicable to this case, compel steam vessels navigating the waters of reads as follows:

this state to be provided with fire screens for

smokestacks, and to provide a penalty for vio“It shall be unlawful

for any per- lation of this requirement. The object is clear, son to have or possess any still, device, or and the mere omission of the word 'steam' beproperty for the manufacture of liquor intend- fore the word 'vessels' in section 1 of the act, ed for use in violation of the laws of this does not render the act repugnant in its terms. state."

Clearly it means all steam vessels." Appellant filed a motion to quash the in We think that, as to the statute under condictment on the ground that the facts stated sideration, it is clear, when the foregoing do not constitute a public offense, and also rules of construction are kept in mind, that filed a motion in arrest of judgment assign- the keeping of a still for the manufacture of ing the same ground. Each motion was over- intoxicating liquor to be used in violation ruled, and these rulings are the only ones of law is prohibited. This is not supplying complained of. The indictment charged that an omission in the law, but is construing the appellant at a certain time and place, "did law as enacted. It therefore follows that it then and there unlawfully have and possess was proper for the indictment to charge that a certain still, device, and property for the the still was kept for the manufacture of inmanufacture of intoxicating liquor intended toxicating liquor. for use in violation of the laws of this state.

[5] Appellant contends that the indictment

is insufficient because it fails to allege the pur[1-4] The first contention of appellant is pose for which the intoxicating liquor was to that the indictment does not follow the exact be manufactured, other than the general allanguage of the act, in that, although the legation in the language of the statute, nametitle refers to the manufacture of intoxicat- ly, “intended for use in violation of the laws ing liquor, the body of the act prohibits the of this state.” The indictment follows the possession of a still for the manufacture of language of the statute, and this is gener. liquor, without limiting it to intoxicating ally sufficient where, as in this case, the statliquor, and also in this same connection ap- ute defines the crime. . The offense consists pellant contends that the body of the act is in possessing the property for the purpose of broader than the title which only refers to manufacturing intoxicating liquor for any intoxicating liquor. We think that when

use that is not authorized by law. It is not properly construed the act only prohibits the the using of the manufactured liquor that is possession of a still for the manufacture of a violation of this provision. intoxicating liquor.

An indictment has been held sufficient It is a familiar rule that in construing which charged the defendant, in the lanstatutes we should look to both the title and guage of the statute, with keeping a place the body of the act, and that the title should where intoxicating liquors were sold, barbe considered in construing the body, and tered, and given away, “in violation of the that the whole act should be construed to- laws of the state of Indiana," notwithstandgether. Huff v. Fetch (Ind. Sup.) 143 N. E. ing that at that time not all sales were un705. The object to be kept in mind in con- lawful, but only those made under certain struing a statute is to discover the intention conditions. Rigrish v. State (1912) 178 Ind. of the Legislature. The strict letter must | 470, 99 N. E. 786; Donovan v. State (1908) yield to the obvious intent. While the inten- 170 Ind. 123, 83 N. E. 744. tion of the Legislature must be ascertained In the case of Smith v. State (Ind. Sup.) from the language used, yet, where the in- 144 N. E. 141, this court had before it an af. tention of the legislative body clearly ap- fidavit charging an offense in substantially pears from the language used, courts may the language used in the case at bar, and it restrict the general meaning of words in or was said by the court in that case, that the der to effectuate the manifest purpose of the affidavit, being in the language of the stat. statute. Burrows v. Delta Transportation ute, was sufficient. Co., 106 Mich. 582, 61 N. W. 501, 29 L. R. A. 468; State v. Pay, 45 Utah. 411, 146 P. 300, in the statute prohibiting the possession of a Ann. Cas. 1917E, 173; 2 Lewis, Suth. St. still for the unlawful manufacture of intox. Const. 88 376, 381, 25 R. C. L. 971.

icating liquor is not within the title to said In the case first cited above it was object-act. As has been repeatedly held by this ed that the title of the act and the body were court, it is only the subject of the act that repugnant because the title provided that needs to be expressed in the title, and not the steam vessels should provide fire screens, matters properly connected therewith. Bald. etc., while the body of the act provided that win v. State (Ind. Sup.) 141 N. E. 343. This all vessels should have fire screens, etc. The title, as heretofore set out, expresses the subcourt, in disposing of this objection, said: ject of prohibiting the manufacture of intox"The rule of construction of statutes re

icating liquor, and, under such a title, it quires that a reasonable interpretation be given would be proper to embrace in the act any to the language used in the provisions so as to

matter properly connected with the subject accomplish the object sought to be reached. so expressed. Certainly prohibiting the posThe aim and purpose of this statute are to session of property to be used for the man.

A. utes, Yu Appellant argues that the provision

(145 N.E.) ufacture of such liquor would be a matter Action by Tina Adams against the New properly connected with prohibiting the man- | York Life Insurance Company, in which deufacture of the same.

fendant filed a cross-complaint. Judgment It is our opinion that the indictment is suf- for plaintiff, and defendant appeals. Afficient, and the judgment is affirmed.


Louis H. Cooke, of New York City, D. H. Ortmeyer, of Evansville, and Gavin & Gavin, of Indianapolis, for appellant.

Walker & Walker and Denton & Denton, NEW YORK LIFE INS. CO. V. ADAMS.

all of Evansville, for appellee. (No. 11764.) (Appellate Court of Indiana, Division No. 2. MCMAHAN, J. On October 6, 1919, appelNov. 12, 1924.)

lant issued to Henry W. Adams a life insur

ance policy for $1,000 naming appellee as 1. Pleading 195, 354 (2) — Whether cross

beneficiary. This policy contained this complaint sufficient pleading properly present. ed by demurrer, not motion to strike.

clause: Whether cross-complaint stated use of ac “This policy * shall be incontestable tion against defendant named therein could be after two years from its date of issue except raised and presented only by a demurrer for for non-payment of premiums." want of facts, and not by motion to strike. 2. Pleading On 354(2) – Cross-complaint prop

The insured died October 10, 1920. Aperly stricken if facts alleged therein cannot pellee commenced suit on the policy Octoby amendment be made germane to complaint. ber 31, 1921. The complaint, after alleg

If facts alleged in cross-complaint cannot ing the issuance of the policy and the death by amendment be made germane to complaint of the insured, alleged that appellee gave apit is not error to strike it out.,

pellant notice of the death of the insured 3. Cancellation of instruments mil 3-Insurer's the policy. On January 24, 1922, appellant

and submitted proofs thereof as required by cross-complaint properly stricken, defendant having adequate remedy at law.

filed answer in two paragraphs, each of which Insurer's cross-complaint, asking cancella- alleged that the insured made false and tion of policy for fraud, was properly stricken, fraudulent statements in his application for as defendant had adequate remedy at law by insurance, that the insured knew such statesetting up the fraud as defense.

ments were false, and that appellant relying 4. Appeal and error m846(6)-Courts

upon the truth of the statements issued the 95 (i)-Decisions of courts of Illinois not con. policy; that appellant received the notice trolling where trial court failed to make any of the death of the insured with proofs Nofindings as to law of Illinois.

vember, 1920, and immediately began an inWhere trial court found that insurance pol-vestigation of the circumstances of the inicy was an Ilinois contract and Illinois stat- sured's death; that as soon as it learned ute as to incontestability was applicable, but the statements were false and fraudulent, failed to make any finding as to law of Illinois that is, on February 3, 1921, it notified apas decided by Supreme Court of that state, de- pellee of the information it had received cisions of Supreme and Appellate Courts of Illi- concerning the falsity of such statements; pois cited by parties were not controlling, but that it desired to and did rescind the policy ; would be given such consideration as in judgment of Supreme Court they were entitled to. and that it repaid to appellee the premiums

paid with interest. Appellant also filed a 5. Insurance M400 — Insurer not entitled to cross-complaint in two paragraphs, alleging

rescind policy where failing to take court ac- the same facts as alleged in its answer, and tion within contestable period.

asked for a cancellation of the policy. On In action on insurance policy, incontestable motion of appellee both paragraphs of crossafter two years from date of issue, insurer

complaint were stricken from file, on the could not defend on ground that it had rescinded policy within contestable period for insured's ground that appellant had an adequate remfraud, where it failed to take affirmative action edy at law. in court within contestable period to avoid pol

Appellee replied in five paragraphs. The icy.

first denied repayment of the premiums. The

second denied the repayment of the premi6. Insurance 400—Provision of law written

in and made part of insurance policy not af. ums, set out the incontestable clause, and fected by subsequent legislation.

alleged that no legal action to contest the Where provision of law relating to incon- policy was commenced until more than two testability of insurance policies was written in years after the date when the policy was is. and made a part of insurance contract, it be- sued. The third paragraph admitted the recame a material part thereof and could not be ceipt through the mail of a check for the affected or changed by subsequent legislation. amount of the premiums and interest, and

alleged that appellee never intended to acAppeal from Superior Court, Vanderburgh cept the same, never cashed it, and had nevCounty; Edgar Downe, Judge.

er seen an officer or agent of appellant to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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