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(148 N.E.) by several recent decisions. Nation v. Green, brier and to Fred C.. Brier, and were each 65 Ind. App. 136, 138, 116 N. E. 840; Daniels charged with one-third of the mortgage debt v. Bruce, 176 Ind. 151, 152, 95 N. E. 569; | by way of making the several parcels of Nation v. Green, 188 Ind. 697, 699, 123 N. E. equal value; and that the holder of the 163; Pattison v. Grant Trust & S. Co. (Ind. mortgage was a party to the partition suit Sup.) 144 N. E, 26. Therefore the order of and consented to the decree of partition, and, March 18, 1925, transferring this cause to further alleging that the mortgage debt conthe docket of the Appellate Court, is vacated stituted a large part of the indebtedness of and set aside, and it is ordered reinstated plaintiff's decedent, he asked the court to as No. 24470 in this court.

order the administrator first to sell parcels [2] Appellees have filed a motion to dismiss Nos. 4, 5, and 6 (owned by appellant, Henry the appeal for the reason that Henry F. Brier F. Brier, and Fred C. Brier, respectively, as and Fred C. Brier, who were parties below and was stated above) before offering any of deeach owned a portion of the land ordered to cedent's other real estate for sale. be sold, have not been made parties to this ap The court made a general finding that all peal. The appeal seems to have been taken in the real estate of the decedent was subject compliance with the statute regulating ap- to sale for the purpose stated and should be peals "in any matter connected with a dece- sold, so far as it might be necessary, to pay dent's estate," which has been held to govern debts and costs, but that tracts Nos. 4, 5, and appeals from orders for the sale of real estate 6 were primarily liable for payment of the to pay the debts of a deceased owner. Rine- mortgage and ought to be sold first, and it bart v. Vail, 103 Ind. 159, 160, 2 N. E. 330; rendered judgment accordingly, which is the Galentine v. Wood, 137 Ind. 532, 537, 35 N. judgment appealed from. E. 901; Bollenbacher v. Whisnand, 148 Ind. [3, 4] The contention of appellees that Hen377, 378, 47 N. E. 706; Vail v. Page, 175 Ind. ry F. Brier and Fred C. Brier were necessa126, 130, 93 N. E. 705.

ry parties appellees, by reason of their inThat statute provides that "any person terests being adverse to appellant, is based who is aggrieved, desiring such appeal, may on certain allegations of an answer filed by take the same in his own name without join him, and evidence which he offered at the ing any other person” upon giving an appeal trial. But it appeared without dispute that bond within 30 days and filing the transcript | the decree in the partition suit had charged within 90 days, both of which were done in each of the three tracts owned by appellant

Section 2978, Burns' 1914; sec- and by Henry F. Brier and Fred C. Brier, tion 3, c. 36, p. 65, Acts 1913. But it does respectively, with the payment of one-third not purport to excuse compliance with the of the mortgage debt; and his answer mere. established rule that all parties to the judg- ly asked relief on the basis that appellant ment below adverse to appellant, who have should be permitted to pay his proportionate an interest in maintaining it as against the part in cash, and thus save his own parcel relief he is seeking, must be named as par- from being sold. And since the complaint ties in the assignment of errors in order that I asked for the sale of lands belonging to six this court may have jurisdiction. Hughes | owners, which they had inherited from the 1. Yates (Ind. Sup.) 144 N. E. 863; City of deceased debtor, and upon a cross-complaint Crown Point v. Shipman (Ind. Sup.) 141 N. by one of them asking that the lands set off E. 453; rule 6, Supreme Court; Ewbank, to three others be first sold the court so Manual (2d Ed.) 88 126a, 226, and authorities ordered, we think the three owners of the cited; chapter 19, p. 41, Acts 1925.

lands thus ordered to be first sold must all In the case at bar the action was com- be deemed potential appellants, so that one menced by the administrator filing a com- of them, in appealing under section 2978, plaint against the appellant and Fred C. supra, need not name the other two as par. Brier, Henry F. Brier, and his wife and many ties to his appeal. Appellee's motion to disother parties, including those who have been miss the appeal is overruled. Since the set. joined with the administrator as appellees. tlement of an estate depends upon the deciThe only issue presented by the complaint | sion of this cause, it is ordered to be adwas whether or not certain city lots and avanced for immediate consideration and decertain 30-acre tract of land on which there cision, under rule 32. was a mortgage securing a promissory note [5, 6] Overruling appellant's motion for a given by plaintiff's decedent in her lifetime, new trial, and overruling his motion to modshould be sold for the payment of her debts, ify the judgment, are assigned as errors. which were alleged to exceed the personal The judgment exactly conformed to the findestate by a large amount, besides the costs of ing, which was within the issues joined on administration. Appellee Charles E. Brier the pleadings, therefore the motion to modifiled a cross-complaint, alleging that the real fy the judgment was properly overruled. estate had been partitioned among the heirs; Such a motion does not present any question that the mortgaged tract had been subdivid- as to what, under the evidence, the finding ed into parcels Nos. 4, 5, and 6, which were on controverted points ought to be, but only Bet off, respectively to appellant, to Henry F. | whether the judgment conforms to the find

this case,

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ing as actually made. . Shaw v. Newsom, 78 | evidence was introduced tending to prove that Ind. 335, 338; Furry v. O'Connor, 1 Ind. App. I the proceeds from a sale of the two parcels 573, 580, 581, 28 N. E. 103; Heaton v. Grand set off to others than appellant would be suf. Lodge, 55 Ind. App. 100, 103, 103 N. E. 488; ficient to pay two-thirds of the mortgage Kepler v. Wright, 31 Ind. App. 512, 516, 68 and all debts and expenses not satisfied by N. E. 618.

the personal estate, that appellant had tenThe motion for a new trial alleged that the dered a sum equal to one-third of the mort. decision is not sustained by sufficient evi- gage debt, and that a former holder of the dence, and is contrary to law. And appel- mortgage had approved the report of the comlant insists that this tract of land, designat- missioners making partition by which oneed as No. 4, should not have been included third of the debt was charged against each in the first offer of lands for sale. The only of the three tracts, it did not appear that pleading set out in appellant's brief which any issue was made in the partition suit as tenders any issue as to postponing the sale to affecting the mortgage lien by the decree of his land until after tracts Nos. 5 and 6 shall subdividing the land, and all the evidence have been sold is the answer above referred as to the personal assets and debts of the to, which alleges that on a date long after estate, the probable expenses of administra. this suit was commenced appellant tendered tion, the value of each of the several parcels to the holder of the mortgage $1,254.06, which of real estate covered by the mortgage, and was alleged to be the amount then due from the amount of the mortgage debt consisted him on the claim filed by said mortgage of oral testimony, and the appellant had the against the estate of plaintiff's decedent, and burden of proof under his affirmative answer that he paid the same into court for the use to establish that the part of decedent's real of the mortgagee. Appellant had previously estate set off to him was not included in what appeared and filed an answer at the January it would be necessary to sell. term, 1923, and it was not until the May term [7,8] The rule by which this court is gop. that he filed his plea of tender, which alleg- erned in passing on a motion for a new trial, ed that payment of one-third of the mortgage because of the alleged insufficiency of the eri. debt and interest, with attorney fees, was ten- dence, is to accept as true all evidence and dered to the mortgagee, and that the money all inferences from the facts so proved which was paid into court in February, which was tend to sustain the finding, if any there be, after the action had been pending more than a and to reject and disregard all evidence to full term. Section 1612, Burns' 1914; sec- the contrary. Tested by this rule the evi. tion 7, c. 151, p. 242, Acts 1907. The verified dence was not insufficient. petition of the administrator showed that [9-11] Over an objection and exception by the total value of the personal estate of the appellant, the trial court admitted in eridecedent which had come to his knowledge dence what purported to be a judgment renwas $1,113.84; that claims had been allow-dered some months before the commenceed against the estate for $4,163; that claimsment of this action to sell real estate, in a for $423.03 additional had been filed that suit by Henry F. Brier, Fred Brier, and othwere still pending, besides the expenses of ers against appellant and the cross-complainadministration; that of these claims the ant herein, Charles E. Brier, and the former holder of a mortgage on the lands designat- owner of the mortgage on said lands, to the ed as parcels Nos. 4, 5, and 6 had filed his effect that said plaintiffs in that action should. claim on September 27, 1922, for $3,680 as take nothing, and that the defendants there of that date. And there was evidence to the in should recover their costs, with the added effect that, while the administrator had col. recital that the rights of the defendant own. lected $1,400.32 of assets of the estate at the er of the mortgage, since allowed as a claim time of the trial, expenses of administration against the estate on behalf of his assignee, to the amount of $1,200 or $1,500 had been should not be affected thereby. The objec. incurred. And it appeared without disputetion offered to its admission was that it did that the three parcels of land had been mort- not tend to prove any issue in the case, and gaged as a single tract by the decedent to could not affect the decree in the partition secure a debt which had matured and become suit.

And, on appeal, counsel for appellant due and payable before the tract was sub- say that the purpose for which this evidence divided into parcels by the decree of parti- was offered "was evidently to nullify the eftion, being two years before this action to fect of the 0. K. on the report of the com. sell real estate for the payment of debts of missioners by the mortgagee"; the report of the decedent was commenced.

the commissioners making partition of the Considered alone, this evidence sufficiently lands, as read in evidence, having borne an showed that the entire tract covered by the indorsement on the back of “O. K. D. A. My• mortgage, embracing the three parcels into ers, Attorney for Rosebrock," who then ownwhich it was subdivided by the decree of pared the mortgage. But no issue having been tition, ought to be sold for the purpose of joined in the partition suit between appelpaying the mortgage and other debts and lant and the owner of the mortgage, the mortcosts of administration. And, while other gagee having merely asked to have his rights

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(148 N.E.) protected, and the report of the commission-1 5. Elections w216_Application for absent ers not purporting to release any part of the voter's ballot to the clerk of circuit court mortgaged tract from the liun of the mort

when away from office held not to invalidate

ballot. gage for the entire debt, placing an “O. K." on the report did not amount to an agree, made application for absent voter's ballot to

That person otherwise qualified to vote ment by the mortgagee that judgment should clerk of circuit court when away from his ofbe entered releasing appellant's parcel from fice, and, after complying with law respecting the lien of that part of the mortgage order- voting, delivered it to clerk when away from ed to be paid by Henry F. Brier and Fred his office, held not to invalidate ballot. C. Brier to equalize their shares of the land

6. Elections 73–Vote of woman in prepartitioned, even if the decree of partition

cinct of husband's former residence sustained entered thereon had so provided, which it

under evidence, did not. That being true, and the case hav

Where husband had moved lodgings to be ing been tried without a jury, we do not per- nearer his work, but testified he had no intenceive how the admission of evidence that in tion of making his new lodging his residence, a former action against appellant and oth- vote of his wife in precinct from which he had ers the plaintiffs had recovered nothing could moved held sustained under evidence. operate to his prejudice. The introduction | 7. Elections Ow73_Vote in precinct not inof evidence wholly immaterial, that had no tended as voter's residence invalid. tendency to mislead the judge who tried the

Vote in precinct to which voter had moved case as to any of the facts on which the to be near his job, but which he did not intend rights of the parties depended, is not cause to make his residence, held invalid. for reversing the judgment. Indiana U. T. 8. Appeal and error w989–Evidence support. Co. v. Hiatt, 65 Ind. App. 233, 246, 114 N. E.

ing verdict only considered in attack on its 478, 115 N. E. 101.

sufficiency. The judgment is affirmed.

In determining whether evidence is suffcient to sustain verdict, evidence supporting verdict only will be considered, and not contradicting evidence.




Appeal from Circuit Court, Martin County; (No. 24741.)

Milton S. Hastings, Judge. (Supreme Court of Indiana. July 1, 1925.)

Quo warranto by the State of Indiana, on 1. Elections Com 194(1)-Ballot with straight the relation of Elza Lewis, against Edgar line through middle of cross held illegal and McArtor, to recover the office of township not proper evidence for jury.

trustee. Judgment for relator, and defendBallot with straight line through middle of ant appeals. Affirmed. cross from left to right in square before name Fabe Gwin, of Shoals, and Padgett & Clark, of candidate for some other office, held a dis

of Vincennes, for appellant. tinguishing mark, making ballot illegal.

Carlos T. McCarty and Hiram McCor2. Elections was 190, 194(9) Erasure in a mick, both of Shoals, Allen, Hastings & Al

square held not only distinguishing mark but | len, of Washington, Ind., and Frank E. Gilkia mutilation.

son, of Shoals, for appellee. Erasure in square opposite name of a capdidate for another office, to extent that it rub


action bed out party designation within square, held not only a distinguishing mark, but a mutila- brought by appellee against the appellant in tion of ballot.

quo warranto to recover the office of town

ship trustee of McCameron township, Mar. 3. Elections Own 216–Failure of clerk of cir- tin county, Ind. cuit court to properly deliver absent voter's

The issues consisted of a complaint in ballot, as required by statute, held not to in three paragraphs. They were numbered 1, validate ballot.

3, and 4. Originally there were four paraWhere absent voter's ballots were properly received by clerk of circuit court as provided graphs, but the plaintiff dismissed the secin Burns' Ann. St. Supp. 1921, § 6927g, and

ond. There was an answer in nine paradelivered by him to election officials, and count- graphs. The first paragraph of answer was ed, that they were not delivered by clerk to a general denial, and the other eight paraelection officials, when and as required by sec- graphs were affirmative. A reply in general tion 69276, 6927j, held not to make them il- denial was filed to each affirmative paralegal, in view of Burns' Ann. St. 1914, 7009.

graph of answer. The defendant afterward 4. Elections C293(3)

dismissed his sixth paragraph of answer.

Question to absent voter as to whom he voted for improper.

Demurrers filed to the third and fourth Question to absent voter as to whom he paragraphs of complaint and to each of Foted for held improper, in absence of showing the affirmative paragraphs of answer were that his ballot was illegal; absent voter being overruled. There was a trial by jury and a entitled to secrecy in casting vote.

verdict returned for the plaintiff appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


Upon this verdict a judgment was rendered the defendant possession of said office and the by the court as follows:

books and papers belonging thereto, which was

refused-wherefore plaintiff demands judgment "It is therefore ordered, considered, and for $1,000 damage, that the defendant be oustadjudged by the court that the defendant, Edgar ed from said office, and that the relator have McArtor, be ousted from office of townsbip possession thereof, and he asks for all proper trustee, McCameron township, Martin county relief in the premises." Ind., and that he deliver the same and return over all books and papers and appurtenances

The third paragraph alleges certain viothereof belonging to said office to Elza Lewis, lations of the election laws, and the fourth the relator herein forthwith. It is further con alleges that defendant was guilty of certain sidered and adjudged that the said Elza Lewis, relator herein, recover of the defendant, Edgar violations of the Corrupt Practice Act, which McArtor, no damages in this cause, and that rendered him ineligible to hold any public he recover of the said Edgar McArtor costs office. and charges in this cause laid out and ex An agreed statement of facts as follows is pended.”

made part of the evidence: From this judgment appellant appeals, and

"The following facts are agreed to by the

parties and are to be taken and considered by assigns as

(1) The court erred in the jury as evidence without further proof: overruling appellant's demurrer to each the That at the November, 1922, election in Mcsecond, third and fourth paragraphs of plain- Cameron township, Martin county, Ind.. the tiff's complaint; (2) the court erred in over- relator, Elza Lewis, and the defendant, Edgar ruling appellant's motion for a new trial. McArtor, were the only candidates for the of

The issues consisted of a complaint in fice of township trustee of said township, and three paragraphs, and an answer in eight their names as such candidates for said office paragraphs, and a reply in general denial to appeared on the official ballot in said township;

that each of said candidates were bona fide the affirmative paragraphs of answer.

residents of said township and qualified voters The first paragraph of the complaint, omit- therein at that time, and each was over the ting the caption and signatures, is in words age of 21 years; that at said election the names and figures following, to wit:

of 453 persons were recorded on the poll books “The plaintiff respectfully gives the court to

as having voted at said election, and 453 ballots understand and be informed that the relator the election officers of said election in said

were placed in the township ballot box; that was, on the 7th day of November, 1922, and has ever since been, a bona fide resident and township canvassed the votes cast at said elector of McCameron township, Martin coun

election for said candidates for trustee, and ty, Ind., and eligible to be elected to and hold counted 221 votes for relator and 222 votes for the office of trustee of said township; that on

defendant, and declared the defendant elected the 7th day of November, 1922, at a general issued to defendant a certificate of election as

to the office of trustee of said township, and election held in said township, for the election provided by law, and thereafter defendant duly among other officers, of trustee of said township, the relator and defendant were the only qualified as trustee of said township, and on

January 1, 1923, the defendant took possession candidates for said office. That the relator was a candidate on the Republican ticket, and the of said office, and has been in possession thereof defendant was a candidate on the Democratic the salary thereof, which salary is $600 per

ever since, discharging the duties and receiving ticket; that in the canvass of the vote of the electors of township, at said election, the elec; the relator, Elza Lewis, filed his bond as trustee

year; that on the 21st day of December, 1922. tion boards in the two election precincts of said of said township, and took the oath of office as township by error and mistake awarded and counted to the defendant 222 votes, and to the required by law and before the commencement relator 222 votes, and thereupon said defendant of this action demanded possession of said of

fice from the defendant. was duly declared elected by said election board

“It is further agreed that 224 of the ballots and the inspectors of said precincts; that in truth and in fact there was cast for the defend: Lewis as such candidate, and are regular and

cast at said election. were marked for Elza ant at said election by the qualified voters of without distinguishing marks, and, if nothing said township 222 votes, and there was like further appears to disqualify said rotes for wise cast for the relator 224 votes, and there

any one of them, should be counted for the fore the relator was elected to said office by a majority of two votes; that the relator has election were marked for Edgar McArtor, and

relator; that 220 of the ballots cast at said filed his bond as such official to the approval of the proper officers, and has taken the oath and, if nothing further appears to disquality

are regular and without distinguishing marks, of office as such trustee; that, notwithstanding said votes or any of them, should be counted the fact that the relator was elected to said for the defendant; that nine other ballots were office, and is entitled to perform the duties and cast at said election, and are not included in receive the emoluments thereof. the defendant the foregoing count." has unlawfully and wrongfully intruded in the said office and usurped the duties and emolu

The first assignment of error is expressly ments thereof, to plaintiff's damage in the sum of $1,000; that said defendant still wrongfully waived by the appellant in his brief, in

which he says: and unlawfully keeps the relator out of possession of said office, and deprives him of the du

“The only question appellant desires to preties and emoluments thereof; that on the 1st sent by this appeal is this: That the court day of January, 1923, the relator demanded of erred in overruling appellant's motion for :

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(148 N.E.) new trial. The notion for a new trial presents , rection in the home of the voter, but it is certain alleged errors of the trial court in the not claimed that such clerk could see how admission and rejection of evidence, and also such ballot was voted. that the verdict of the jury is not sustained by

Section 6927g, Burns' Supp. 1921, provides the evidence and is contrary to law."

that any absent voter's ballot shall be re[1, 2] Appellant claims that the court errea ceived by the clerk of the circuit court of

the county in time for him to deposit it in sustaining appellee's objection to the

with the election board before the closing admission in evidence of appellant's Exhibits Nos. 1 and 4, being two of the official bal- of the polls on election day. Section 6927h, lots cast for appellant, and being two of the of the circuit court shall inclose the same

Burns' Supp. 1921, provides that the clerk ballots included in the nine referred to in the agreed statement of facts. The objection the next section 6927i provides that he shall

unopened in a large carrier envelope, and to the Exhibit No. 1 is that the cross op deliver it to the election inspector, and secposite the name Christopher C. Williams, tion 6927j proceeds to say what shall be for township advisory board, has a straight done with such ballot after it is in the hands line drawn from left to right horizontally of the inspector. through the middle of the cross, and that

In the instant case it does not appear that this constitutes a distinguishing mark, and

any of the absent voters' ballots complained for that reason the ballot is illegal and not of were voted by persons who were not legal proper evidence to give to the jury. An ex

voters of the precinct in which they were amination of this ballot shows that it con- cast, and it appears that the voters in each tains a cross in the square under the letters instance had placed them in the hands of Dem before the name of Christopher C. Wil- the clerk of the circuit court in the manner liams, Democratic candidate for township

provided by law. advisory board, and that there is a mark, a

The ballots having been delivered to and straight mark or line, through the middle received by the election officers and the of the cross from left to right. The court counting of the ballots completed, the acts held that this was a distinguishing mark, of the board and of all the otticers are taken and rejected the ballot.

as directory. If the voter gets his vote inAppellant's Exhibit No. 4 was objected to side the election room in the manner and for the reason that an erasure appears in the within the time prescribed by law, then, so square opposite the name of Christopher C. far as he is concerned, he has voted, and, if Williams, for township advisory board, to the officers, inspectors, and judges and clerks the extent that it rubbed out the party des- fail to do their duty in any way, then that ignation within the square and made, not is determined by the law as directory, and only a distinguishing mark, but also a mu- the one who is voting has a right to have tilated ballot. This objection was sustained. his vote deposited in the ballot box and There was no error in sustaining these ob-counted, even though it be after 6 o'clock. jections to Defendant's Exhibits Nos. 1 and It is the voter himself who has the right. 4. Sego v. Stoddard, 136 Ind. 297, 36 N. E. These officers might be punished for what 204, 22 L. R. A. 468; Zeis v. Passwater, 142 they did, but the voter has a right to have Ind. 375, 41 N. E. 796; State ex rel. v. Thorn- his vote counted. burg, 177 Ind. 178, 97 N. E. 534; Lewis v.

The right of the voter is paramount, and State ex rel., 184 Ind. 99, 109 N. E. 777. the neglect of the election officers or even [3] It is claimed by the appellant that their fraud should not be allowed to de23 absent voters' ballots were illegally cast prive the voter of his important right and for appellee.

The appellant claims that duty as a citizen to cast his vote and have these were illegal votes, and should not have it counted as cast. Any other rule would to been counted because of certain irregularities a dangerous extent leave the results of elecand alleged misconduct of the clerk of the tions in the hands of the election officers, circuit court in receiving the ballots and mis- / when the intention of the statute is to proconduct or neglect on the part of the in-mote the exercise of free government by all spectors in placing these ballots in the ballot of the lawful voters of the country, and not box; it being claimed by the appellant that to leave it in the hands of the officers selectthey, or at least some of them, were placed ed under the law to serve them. It may be in the ballot box, after the polls had been said to be the rule that the ballot, official closed, and that they were delivered by the and regular in all respects when it reaches clerk of the circuit court to the inspector the inspector of election to be voted, shall without being inclosed in a carrier envelope. not be refused by election officers to be voted Another objection made by appellant to the or to be counted because of the neglect, absent voters' ballots was that the clerk of oversight, mistake, or fraud of the election the circuit court, when he was away from officers or any one of them. his office, but in the county, permitted vot When an absent voter gets an official balers who had availed themselves of the privi- lot and marks it as required by law, and Jege of voting an absent voter's ballot to sees that it gets into the possession of the mark the same in his presence or by his di- circuit clerk in the manner and within the

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