(145 N.E.) cree has or has not been complied with, and the defendant in such a case cannot, in defense thereto, renew the contest as to title or right of possession which has already been settled. Emerick v. Miller (1902) 159 Ind. 317, 64 N. E. 28. [3] A writ of assistance is a summary proceeding by which a court of equity will enforce its decree determining the title or right of possession of real estate, without compelling the party entitled thereto to resort to a court of law to recover the same. It being a summary interlocutory proceeding to be determined by the court of equity, which rendered the original decree, the parties are not entitled to a jury trial, nor to a special finding of facts, as was requested by appellants in this case. Section 418, Burns' 1914; Hutchinson v. Trauerman (1887) 112 Ind. 21, 13 N. E. 412; Starr v. Swain (1914) 182 Ind. 313, 106 N. E. 357. [4] Under the early practice in this country, where a writ of assistance was desired by one entitled to possession of lands under a decree of a court of equity, the following steps were required: Service of an execution; the issuing of an order to deliver; a demand, and the issuing of an attachment for disobeying; an injunction to enjoin the defendants to deliver possession-and then the writ would be issued if necessary. 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. But In view of the fact that the record showed appellants to have been in possession when the judgment was rendered, and it not appearing that they had ever complied with such judgment, and considering that, when it was demanded that they surrender possession in compliance with said judgment, they stated that they refused, and that, notwithstanding a vigorous resistance was made to the issuing of said writ, principally on the ground that the original judgment was void or erroneous, for reasons already settled in the main case, and that no evidence was offered to the effect that they had complied with the same, when, if such had been the fact, it would easily have been shown, and would have been a complete defense to such application, we are not prepared to say that the court was not justified in finding that appellants were in possession, and were refusing to comply with the judgment. All other questions which appellants seek to raise in their brief are either involved in the questions we have discussed, or are matters that were determined by the adjudication in the main action, and that cannot be reviewed in this proceeding. We find no error in the record, and the judgment is affirmed. EWBANK, J., not participating. TALGE MAHOGANY CO. v. ASTORIA MA- Dec. 5, 1924.) statutory remedies for review of judgment waives other. Under Burns' Ann. St. 1914. §§ 646, 672, Rev. St. 1881, § 616, and Acts 1913, c. 36, § 2, party who believes judgment erroneous may either file complaint in circuit court within one year, asking review of judgment, or appeal within 180 days, but adoption of one remedy waives right to other. [5] Appellants say that there was no evidence that they were still in possession of any part of the lands involved. It appears from the record that they were in possession. Appeal and error 12-Adoption of one of when the original judgment was rendered, and there is nothing in the record indicating that they have surrendered possession of the part described in the petition for the writ of assistance. The only purpose of asking for the writ was to put appellants out of possession. The evidence shows that a written demand was made upon both appellants for possession, in compliance with the judgment, before the petition was filed, and that William V. Rooker, one of appellants and attorney for both of them, answered the demand by the statement, "Of course we refuse," and that the other appellant made no reply that the server of the demand re called. By the statement, "Of course we refuse," it was clearly meant that appellants refused to comply with the demand to surrender possession, in compliance with said judgment. Appellants offered no evidence upon the hearing. If appellants were not in possession, they could have saved themselves considerable trouble by showing such fact to the court, but such was not even intimated to the court. 2. Appeal and error ~113(2)—Expiration of time to appeal before suing to review judgment in circuit court, precludes appeal from judgment in suit to review. Though appeal may be taken from judgment in suit to review judgment commenced under Burns' Ann. St. 1914, §§ 646, 672. Rev. St. 1881, § 616, and Acts 1913, c. 36, § 2, before expiration of time for taking appeal, expiration of right to appeal from original judgment before suit to review is commenced precludes appeal from judgment in review action. Appeal from Superior Court, Marion County; T. J. Moll, Judge. On petition for rehearing. Petition overruled. For former opinion, see 141 N. E. 50. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Criminal law 14-Defendant, who committed act while statute forbidding it was in force, could be convicted subsequent to repeal. Defendant, who violated Acts 1917, c. 4, § as amended by Acts 1921, c. 250, § 1, forbidintent to sell, etc., at a time when such statute ding the possession of intoxicating liquor, with subsequent to amendment by Acts 1923, c. 23. § was in effect, could be convicted at trial, held 1, repealing some of its provisions. EWBANK, J. [1] If appellant believed the original judgment erroneous it had a choice of remedies; either to file a complaint in the circuit court within one year, asking a review by the court of the judgment it had rendered, or to perfect an appeal to the Su-4, preme Court within 180 days. Sections 646, 672, Burns' 1914; section 616, R. S. 1881; Acts 1913, p. 65, c. 36, § 2. But the adoption of one of these remedies is a waiver of the right to prosecute the other. Traders' Ins. Co. v. Carpenter, 85 Ind. 350, 351; Harvey v. Fink, 111 Ind. 249, 255, 12 N. E. 396; Cohoon v. Fisher, 146 Ind. 583, 584, 44 N. E. 664, 45 N. E. 787, 36 L. R. A. 193; Ewbank Manual (2d Ed.) § 111. [2] Though, where a suit to review is commenced before the expiration of the time allowed for taking an appeal, of course an appeal may be taken from the judgment rendered in such suit. But appellant made no choice of remedies until after the time allowed for taking an appeal from the original judgment had expired, and then it prosecuted an action to review the judgment in which the circuit court had decided against it. Suffering its original right of appeal to expire before the suit to review was commenced did not affect its right to prosecute, in the circuit court within one year, an action for that purpose, but does preclude an appeal from the circuit court to this court from the judgment rendered in the latter action. Appeal from Circuit Court, Clark County; possession of intoxicating liquor. From mo- Franklin White and Dale F. Stansbury, Depu- EWBANK, J. An affidavit was filed against appellee, which charged that on December 8, 1922, at a place named, he and another did "unlawfully have and keep in their possession intoxicating liquor with intent then and there unlawfully to sell, barter, exdispose of the same to persons to the affiant change, give away, furnish, and otherwise unknown." Appellee filed a motion to quash facts stated did not constitute a public ofthis affidavit for the alleged reasons that the fense, and that the affidavit did not state The petition for a rehearing is overruled. motion was sustained by the trial court. Apthe offense with sufficient certainty, which (Supreme Court of Indiana. Nov. 12, 1924.) 1. Statutes 114(7)-Provision of Amended Section Prohibition Act, prohibiting possession with intent to sell, etc., held embraced within title of act. Title of Acts 1917, c. 4, reading "An act prohibiting the manufacture, sale, gift, advertisement, or transportation of intoxicating liquor, except for certain purposes and under certain conditions," held to embrace provision of section 4, as amended by Acts 1921, c. 250, § 1, forbidding the possession of intoxicating liquor with intent to sell, etc. 2. Indictment and information 110(31)-Affidavit charging possession of liquor in language of statute held sufficient. Affidavit charging that defendant and another did "unlawfully have and keep in their possession intoxicating liquor with intent then and there unlawfully to sell, barter, exchange, give away, furnish, and otherwise dispose of the same to persons to the affiant unknown," being in the language of Acts 1917, c. 4, § 4, as amended by Acts 1921, c. 250, § 1, held sufficient. 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. 15) was not comprehensive enough to emact, as amended by section 1, c. 250, Acts brace the provisions of section 4 of that 1921, p. 736, forbidding the possession of intoxicating liquor with intent to sell, etc., in the language used in the affidavit. [1] The title referred to was: gift, advertisement or transportation of in"An act prohibiting the manufacture, sale, toxicating liquor except for certain purposes and under certain conditions." provisions in question. Zoller v. State, 189 [3] The fact that before this cause came on for final action by the trial court the said act of 1921 had been amended by section 1, c. 23, Acts 1923, p. 70, which does not make it a public offense to have possession of intoxicating liquor with intent to sell, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) etc. (Walker v. State [Ind. Sup.] 142 N. E. 16), was not cause for quashing the indictment. The offense being alleged to have been committed on December 8, 1922, when the act of 1921 was in force, its subsequent amendment so as to repeal some of its provisions could not shield appellant from prosecution for an offense committed while it was in force. Section 248, Burns 1914; section 248, R. S. 1881; State v. Wells, 112 Ind. 237, 243, 244, 13 N. E. 722; Heath v. State, 173 Ind. 296, 298, 90 N. E. 310, 21 Ann. Cas. 1056; Burk v. State, 185 Ind. 47, 49, 113 N. E. 295. The judgment is reversed, with directions to overrule the motion to quash the affidavit, and for further proceedings. 4. Intoxicating liquors 209-Statutes manufacture of "intoxicating liquor," body of 5. Indictment and information 110(31)-In 2. Statutes 183-Strict letter yields to ob- ing liquor for use in violation of the laws of vious intent. In construing statutes, object is to discover intention of Legislature and strict letter must yield to obvious intent. 3. Statutes 184-General meaning of words restricted to effectuate manifest purpose. While intention of Legislature must be ascertained from language used, yet, where intent clearly appears, courts may restrict general meaning of words to effectuate manifest purpose of statute. this state. The indictment was predicated For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * of The part of said act applicable to this case compel steam vessels navigating the waters of reads as follows: "It shall be unlawful * * * for any person to have or possess any still, device, or property for the manufacture of liquor intended for use in violation of the laws of this state." Appellant filed a motion to quash the indictment on the ground that the facts stated do not constitute a public offense, and also filed a motion in arrest of judgment assigning the same ground. Each motion was overruled, and these rulings are the only ones complained of. The indictment charged that appellant at a certain time and place, "did then and there unlawfully have and possess a certain still, device, and property for the manufacture of intoxicating liquor intended for use in violation of the laws of this state. this state to be provided with fire screens for smokestacks, and to provide a penalty for violation of this requirement. The object is clear, and the mere omission of the word 'steam' before the word 'vessels' in section 1 of the act, does not render the act repugnant in its terms. Clearly it means all steam vessels." We think that, as to the statute under consideration, it is clear, when the foregoing rules of construction are kept in mind, that the keeping of a still for the manufacture of intoxicating liquor to be used in violation of law is prohibited. This is not supplying an omission in the law, but is construing the law as enacted. It therefore follows that it was proper for the indictment to charge that the still was kept for the manufacture of intoxicating liquor. [5] Appellant contends that the indictment is insufficient because it fails to allege the purpose for which the intoxicating liquor was to be manufactured, other than the general allegation in the language of the statute, name [1-4] The first contention of appellant is that the indictment does not follow the exact language of the act, in that, although the title refers to the manufacture of intoxicat-ly, "intended for use in violation of the laws ing liquor, the body of the act prohibits the possession of a still for the manufacture of liquor, without limiting it to intoxicating liquor, and also in this same connection appellant contends that the body of the act is broader than the title which only refers to intoxicating liquor. We think that when properly construed the act only prohibits the possession of a still for the manufacture of intoxicating liquor. It is a familiar rule that in construing statutes we should look to both the title and the body of the act, and that the title should be considered in construing the body, and that the whole act should be construed together. Huff v. Fetch (Ind. Sup.) 143 N. E. 705. The object to be kept in mind in construing a statute is to discover the intention of the Legislature. The strict letter must yield to the obvious intent. While the intention of the Legislature must be ascertained from the language used, yet, where the intention of the legislative body clearly appears from the language used, courts may restrict the general meaning of words in order to effectuate the manifest purpose of the statute. Burrows v. Delta Transportation Co., 106 Mich. 582, 64 N. W. 501, 29 L. R. A. 468; State v. Pay, 45 Utah. 411, 146 P. 300, Ann. Cas. 1917E, 173; 2 Lewis, Suth. St. Const. §§ 376, 381, 25 R. C. L. 971. In the case first cited above it was objected that the title of the act and the body were repugnant because the title provided that steam vessels should provide fire screens, etc., while the body of the act provided that all vessels should have fire screens, etc. The court, in disposing of this objection, said: "The rule of construction of statutes requires that a reasonable interpretation be given to the language used in the provisions so as to accomplish the object sought to be reached. The aim and purpose of this statute are to of this state." The indictment follows the language of the statute, and this is generally sufficient where, as in this case, the statute defines the crime.. The offense consists in possessing the property for the purpose of manufacturing intoxicating liquor for any use that is not authorized by law. It is not the using of the manufactured liquor that is a violation of this provision. An indictment has been held sufficient which charged the defendant, in the language of the statute, with keeping a place where intoxicating liquors were sold, bartered, and given away, "in violation of the laws of the state of Indiana," notwithstanding that at that time not all sales were unlawful, but only those made under certain conditions. Rigrish v. State (1912) 178 Ind. 470, 99 N. E. 786; Donovan v. State (1908) 170 Ind. 123, 83 N. E. 744. In the case of Smith v. State (Ind. Sup.) 144 N. E. 141, this court had before it an af fidavit charging an offense in substantially the language used in the case at bar, and it was said by the court in that case, that the affidavit, being in the language of the statute, was sufficient. [6, 7] Appellant argues that the provision in the statute prohibiting the possession of a still for the unlawful manufacture of intoxicating liquor is not within the title to said act. As has been repeatedly held by this court, it is only the subject of the act that needs to be expressed in the title, and not the matters properly connected therewith. Baldwin v. State (Ind. Sup.) 141 N. E. 343. This title, as heretofore set out, expresses the subject of prohibiting the manufacture of intoxicating liquor, and, under such a title, it would be proper to embrace in the act any matter properly connected with the subject so expressed. Certainly prohibiting the possession of property to be used for the man (145 N.E.) ufacture of such liquor would be a matter properly connected with prohibiting the manufacture of the same. Action by Tina Adams against the New York Life Insurance Company, in which defendant 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. NEW YORK LIFE INS. CO. v. ADAMS. (No. 11764.) (Appellate Court of Indiana, Division No. 2. Nov. 12, 1924.) I. Pleading 195, 354 (2) Whether crosscomplaint sufficient pleading properly presented by demurrer, not motion to strike. Whether cross-complaint stated cause of action against defendant named therein could be raised and presented only by a demurrer for want of facts, and not by motion to strike. 2. Pleading 354 (2) - Cross-complaint properly stricken if facts alleged therein cannot by amendment be made germane to complaint. If facts alleged in cross-complaint cannot by amendment be made germane to complaint. it is not error to strike it out.. 3. Cancellation of instruments 13-Insurer's cross-complaint properly stricken, defendant having adequate remedy at law. Insurer's cross-complaint, asking cancellation of policy for fraud, was properly stricken, as defendant had adequate remedy at law by setting up the fraud as defense. 4. Appeal and error 846(6)-Courts 95(1)-Decisions of courts of Illinois not controlling where trial court failed to make any findings as to law of Illinois. Where trial court found that insurance policy was an Illinois contract and Illinois statute as to incontestability was applicable, but failed to make any finding as to law of Illinois as decided by Supreme Court of that state, decisions of Supreme and Appellate Courts of Illinois cited by parties were not controlling, but would be given such consideration as in judgment of Supreme Court they were entitled to. 5. Insurance 400 Insurer not entitled to rescind policy where failing to take court action within contestable period. In action on insurance policy, incontestable after two years from date of issue, insurer could not defend on ground that it had rescinded policy within contestable period for insured's fraud, where it failed to take affirmative action in court within contestable period to avoid policy. firmed. Louis H. Cooke, of New York City, D. H. Ortmeyer, of Evansville, and Gavin & Gavin, of Indianapolis, for appellant. Walker & Walker and Denton & Denton, all of Evansville, for appellee. MCMAHAN, J. On October 6, 1919, appellant issued to Henry W. Adams a life insurance policy for $1,000 naming appellee as beneficiary. This policy contained this clause: * "This policy * shall be incontestable after two years from its date of issue except for non-payment of premiums." The insured died October 10, 1920. Appellee commenced suit on the policy October 31, 1921. The complaint, after alleging the issuance of the policy and the death of the insured, alleged that appellee gave appellant notice of the death of the insured and submitted proofs thereof as required by the policy. On January 24, 1922, appellant filed answer in two paragraphs, each of which alleged that the insured made false and fraudulent statements in his application for insurance, that the insured knew such statements were false, and that appellant relying upon the truth of the statements issued the policy; that appellant received the notice of the death of the insured with proofs November, 1920, and immediately began an investigation of the circumstances of the insured's death; that as soon as it learned the statements were false and fraudulent, that is, on February 3, 1921, it notified appellee of the information it had received concerning the falsity of such statements; that it desired to and did rescind the policy; and that it repaid to appellee the premiums paid with interest. Appellant also filed a cross-complaint in two paragraphs, alleging the same facts as alleged in its answer, and asked for a cancellation of the policy. On motion of appellee both paragraphs of crosscomplaint were stricken from file, on the ground that appellant had an adequate remedy at law. The Appellee replied in five paragraphs. first denied repayment of the premiums. The second denied the repayment of the premiin and made part of insurance policy not af alleged that no legal action to contest the ums, set out the incontestable clause, and fected by subsequent legislation. 6. Insurance 400-Provision of law written Where provision of law relating to incon-policy was commenced until more than two testability of insurance policies was written in and made a part of insurance contract, it became a material part thereof and could not be affected or changed by subsequent legislation. Appeal from Superior Court, Vanderburgh County; Edgar Downe, Judge. years after the date when the policy was issued. The third paragraph admitted the receipt through the mail of a check for the amount of the premiums and interest, and alleged that appellee never intended to accept the same, never cashed it, and had never seen an officer or agent of appellant to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |