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(315 III. 328)

(146 N.E.)

thereto; that for more than 7 years the

GAGE v. VILLAGE OF WILMETTE et al. cottages have been furnished with water

(No. 16406.)

(Supreme Court of Illinois. Dec. 16, 1924. Rehearing Denied Feb. 11, 1925.)

1. Pleading 34(4) Allegations construed most strongly against pleader.

by the village, on complainant's application therefor, through water mains in front of the cottages connected with water mains of the village; that the village put in service taps connecting the cottages with the water mains and has collected bills for the water

On demurrer every allegation of bill is con- supplied, for repair of the pipes leading to strued most strongly against pleader.

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Where consumer in bill to enjoin village from discontinuing water supply alleged that he was owner of manhole and shutoff located in a public street, without alleging possession entitling him to maintain action of trespass, presumption arises that he did not have such possession.

Appeal from Second Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Bill for injunction by John S. Gage against the Village of Wilmette and others. From a decree of the Appellate Court, affirming a decree of dismissal, complainant appeals.

Affirmed.

Frank N. Reed, of Chicago, for appellant. Frederic B. Crossley, of Chicago (Elmer M. Leesman and Raymond C. Schnell, both of Chicago, of counsel), for appellees.

HEARD, J. Appellant filed in the superior court of Cook county his bill for an injunction against the village of Wilmette and certain of its officers. An answer was filed thereto, and thereafter complainant took leave to amend the bill and a demurrer was filed to the bill as amended. The demurrer was sustained and complainant elected to stand by his amended bill, which was by the court dismissed for want of equity and an appeal perfected to the Appellate Court for the First District, where the decree of the superior court was affirmed. A certificate of importance having been granted by the Appellate Court, the case is now before us upon appeal.

The bill as amended alleges that complainant for many years has been a resident of the village of Wilmette and the owner of a cottage on Sheridan road, about 500 feet north of the limits of the village, and that he has charge of another cottage adjacent

the cottages and for water meters; that there is no other source of water supply to said cottages; that complainant has a contract with the village, either express or implied, to furnish water for use in the cottages, and that unless it shall continue to do so as heretofore, complainant will suffer irreparable damage; that for a number of years the village has maintained and operated a plant for the purpose of distributing and selling water within and without the village; that the water is obtained from the city of Evanston under a contract with said city; that the village operates and maintains a public utility, and has a fixed rate of payment for water sold in the village and another rate for water sold and distributed without its limits; that for many years the village has supplied customers with water who were not residents of any municipality, and has thereby assumed the position of a public utility for the sale of water to customers outside of its corporate limits; that the supply of water furnished by the city of Evanston to the village of Wilmette is ample and sufficient to enable complainant, and that the city of Evanston the village to continue furnishing water to has not refused to furnish the same. amended bill then sets up, by way of supplement, that, at the time of filing the bill, complainant was being supplied with water as required, but that the officers of the village were threatening to turn off the water, and since filing the original bill the village had cut off the supply of water; that the manhole containing the shutoff is in Sheridan road, about 100 feet north of the village limits; that the manhole and shutoff belong to the owners of property facing Sheridan road; that, without the knowledge and consent of complainant, the village, through its employees, has caused the manhole to be filled up. The bill prays that the village may be restrained from turning off or discontinuing the water supply to the premises in question, and, that if the agents of the village have turned off the water, they be ordered by a mandatory injunction to turn it on or have the supply continued to said premises.

The

[1, 2] In the briefs and arguments many questions have been discussed, including the right of the village of Wilmette, under the conditions set up in the bill, to furnish water to persons outside of its limits, which we do not deem necessary to consider. While it

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326

as to be paid by taxpayers, and instruction to disregard statement relative to payment by taxpayers, and court's additional statement that it was duty of board of commissioners to determine who should pay cost or damage, if any, held not erroneous.

Appeal from Circuit Court, Fountain County; Jere West, Judge.

is alleged in the bill that there was a contract | struction and damages payable to remonstrant, between the village and the complainant to furnish water, the bill does not contain the terms of the contract nor any allegation as to the time during which the conThe bill tract was to continue in force. merely describes it as being "either express or implied.". Upon demurrer every allegation of the bill is to be taken most strong ly against the pleader. Where no definite time is fixed during which an executory contract shall continue in force it is terminable at the will of either party. Joliet Bottling Co. v. Joliet Brewing Co., 254 Ill. 215, 98 N. E. 263; Davis v. Fidelity Fire Ins. Co., 208 Ill. 375, 70 N. E. 359; Orr v. Ward, 73 W. N. White, of Covington, and B. F. WatIll. 318. Under the allegations of the bill therefore the village had a right to termi-son, of Indianapolis, for appellees. nate the contract at any time.

[3] The manhole and shutoff were in a public street, and, although complainant alleges that he is the owner thereof, there is no allegation in the bill to show that complainant had such possession thereof as to entitle him either to maintain an action of trespass or a bill to prevent a threatened trespass, but, on the contrary, the presumption arising from the facts stated in the bill is that he did not have such possession. The amended bill of complaint failed to show on its face that complainant was enThe superior titled to the relief sought. court properly sustained the demurrer to the bill.

Decree affirmed.

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Where evidence is not in transcript or recited in appellant's brief, it must be presumed that instructions given correctly stated law pertinent to the evidence, and that those refused, if they stated law, were not applicable. 2. Appeal and error 928 (3)-Where evidence not in record, instructions correct under any evidence admissible under issues will

not be held erroneous.

Where evidence is not in record, instructions given will not be held erroneous, if correct under any evidence admissible under issues in

cause.

3. Highways 58 (8)-Sustaining objection to argument of remonstrant's counsel and statement of court as to payment of damages held

not erroneous.

In proceedings to establish highway, sustaining objection to argument of remonstrant's attorney that jury should consider cost of con

Proceedings by H. Knapper Bilsland and others for establishment of public highway. From the judgment rendered, remonstrant, David S. Ferguson, appeals. Affirmed.

Livengood & Livengood, of Covington, for appellant.

GEMMILL, J. Appellees filed a petition with the auditor of Fountain county, addressed to the board of commissioners, praying for the location and establishment of a public highway in Troy township in said county.

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Viewers were appointed who reported in favor of the public utility of the proposed highway. The appellant and other freeholders remonstrated against same not being of public utility, and reviewers were appointed who also reported favorably on that proposition. The appellant, David S. Ferguson, and his wife, Sarah E. Ferguson, then filed separate remonstrances for damages. Reviewers were appointed who assessed and reported damages in favor of each of said remonstrators. The reports of the reviewers as to the public utility of the proposed highway and as to damages in favor of the remonstrators were approved, the damages were ordered paid by the county, and the highway was ordered established. The remonstrators then appealed to the Fountain circuit court. Before the case was tried in the circuit court, the remonstrator, Sarah E. Ferguson, died intestate, leaving as her only heir at law the other remonstra

tor, David S. Ferguson, who became the owner of the real estate which she owned, and on which damages had been assessed, and he was substituted as remonstrator in the place of said decedent.

The cause was tried by

a jury, which found that the proposed highway would be of public utility and against the remonstrator on that proposition, but found for the remonstrator, the appellant herein, on his remonstrance for damages, and assessed his damages in the sum of $200. Judgment was rendered on the verdict.

Appellant filed a motion for a new trial containing 11 causes for same, which motion was overruled. The ruling on said motion has been assigned as error.

In appellant's brief on page 30 the following statement is made:

"We are free to concede there is no reversible error in the record in this cause, aside from

(146 N.E.)

the instructions given to the jury, including the peremptory instruction given during the argument of counsel for appellant."

And in accordance therewith all causes stated in the motion for a new trial, except the seventh, eighth, ninth, and eleventh, are not discussed by appellant, and may be regarded as waived.

The seventh, eighth, and ninth reasons for a new trial are as follows:

"(7) The court erred in giving to the jury of its own motion, each of the instructions, sep

arately and severally numbered from 1 to 10,

inclusive.

"(8) The court erred in giving to the jury at the request of the petitioners instructions numbered from 1 to 22, save and except instructions 4, 5, 12, and 16, and that the court erred in giving each of the instructions separately and severally.

"(9) The court erred in refusing to give to the jury each of the instructions requested by the remonstrator numbered 2 and 15."

[1, 2] The evidence is not in the transcript, and there is no recital of same in appellant's brief, so it will be presumed that the instructions given correctly stated the law as pertinent to the evidence, and those refused, if they stated the law, were not applicable to the evidence. De Hart v. Board, etc. (1896) 143 Ind. 363, 367, 41 N. E. 825; Lyons v. Souder (1914) 56 Ind. App. 443, 105 N. E. 511; Gary, etc., R. Co. v. Hacker (1915) 58 Ind. App. 618, 108 N. E. 756; Traction Co. v. Hall (1910) 173 Ind. 292, 295, 90 N. E. 312; Goshen Milling Co. v. Bailey (1917) 186 Ind. 377, 383, 114 N. E. 869. As the evidence is not in the record, none of the instructions, which were given, will be held erroneous if correct under any evidence admissible under the issues in the cause. Mankin v. Pennsylvania Company (1903) 160 Ind. 447, 454, 67 N. E. 229; Indianapolis Traction, etc., Co. v. Ripley (1911) 175 Ind. 103, 108, 93 N. E. 546; Oleske v. Piotrowski (1919) 71 Ind. App. 136, 141, 124 N. E. 399; Jones v. Beasley (1921) 191 Ind. 209, 213, 131 N. E. 225. er careful examination of the instructions given, which are objected to by appellant, we believe each of said instructions is correct under evidence admissible under the issues.

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[3] The eleventh reason for a new trial is as follows:

"(11) The court erred in sustaining the objection of the petitioners' attorney to the following statement made to the jury in argument by the attorney for the remonstrator, to wit, it is your duty to regard the cost of the construction of this proposed highway, the damages to be paid the remonstrant, all to be paid by the taxpayers of Fountain county, Ind., and instructing or directing the jury to disregard that part of the statement, all to be paid by the taxpayers of Fountain county, Ind.; and that the court erred by making the voluntary

statement, in addition thereto, in the presence of the jury, that it is the duty of the board of commissioners of the county to determine who shall pay the cost or damages, if there shall be any to pay, and not this jury."

The court, in our opinion, did not err in sustaining the objection of petitioners' attorney to the said statement of remonstrator's attorney in argument to the jury, for

the reason that said statement was erroneous. It could not be presumed that the damages, if any, would have to be paid by the county. And the court did not err in in

structing or directing the jury to disregard the objectionable part of the statement and in stating the law as to the determination of payment of damages, if any.

The court did not err in overruling the motion for a new trial. The judgment is af

firmed.

PARKER v. STATE. (No. 24563.)

(Supreme Court of Indiana. Jan. 30, 1925.) 1. Indictment and Information 110(31)— Affidavit in words of statute charging sale, etc., held sufficient as against general objection.

Affidavit in language of statute that defendant did "unlawfully sell, barter, exchange, give away, furnish, and otherwise dispose of intoxicating liquor" to persons named, held sufficient as against general objection that facts alleged are not sufficient to state any public offense. 2. Intoxicating liquors 236(11)—Evidence held to support conviction of selling.

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James Parker was convicted of selling intoxicating liquor, and he appeals. Affirmed. Walterhouse & Miller, of Muncie, for appellant.

U. S. Lesh, Atty. Gen. (Cronk & Wilde, of Indianapolis, of counsel), for the State.

EWBANK, J. [1] Appellant was tried on the charge that he did "unlawfully sell, barter, exchange, give away, furnish, and otherwise dispose of intoxicating liquor to" two persons named. The jury found him guilty, and from a judgment of conviction he appealed. The sufficiency of the affidavit was challenged by a motion to quash, and by a motion in arrest of judgment, the specific objection urged being that it did not state what price was paid for the liquor nor what was given in exchange for it, nor state the facts

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which constituted the alleged giving away | amount due his divorced wife for the supor other disposition charged. We need not port of their minor child in accordance with decide whether or not each and all of the a judgment granting a divorce to Vera E. offenses forbidden by the statute were suffi- Burgin, his former wife, and he appeals. ciently charged, as the motions presented Affirmed. only the general objection that the facts alleged were not sufficient to constitute any public offense at all, and the charge in the language of the statute was sufficient as to some of the alleged offenses, at least. Lennard v. State, 191 Ind. 371, 132 N. E. 677.

[2] The only causes for which a new trial was asked challenged the sufficiency of the evidence to sustain the verdict finding appellant guilty as charged. There was evidence that the two persons to whom the intoxicating liquor was alleged to have been sold, 'bartered, given, furnished, and otherwise disposed of went down an alley and entered the home of defendant in Muncie from the rear and asked him for something to drink; that appellant brought each of them about a spoonful in a little glass of something that did not taste like water, which each drank; that one of them paid defendant 35 cents a drink for it, and they left the house within 10 minutes after having entered it; that certain policemen had seen them go down the alley and enter defendant's house, and stopped them within 50 feet of it when they came out, and they then had the smell of whisky on their breath. This evidence was sufficient to support the inference which the jury drew that defendant had sold and furnished intoxicating liquor to those two men, as charged.

The judgment is affirmed.

BURGIN v. BURGIN. (No. 24401.) (Supreme Court of Indiana. Jan. 29, 1925.) 1. Divorce 311-Evidence supports guilt of contempt for noncompliance with order to support child.

Evidence held to support judgment that defendant had willfully failed and refused to pay weekly sum to divorced wife for support of child and was guilty of contempt.

Dodson & Scifres and Roy W. Adney, all of Lebanon, for appellant.

E. C. Gullion, of Lebanon, for appellee.

EWBANK, J. [1, 2] This is an appeal from a judgment that appellant be committed to jail for contempt of court until he should fully pay up the amount due his divorced wife for the support of their minor child under an order of court made at the time she was granted the divorce. The original order was that he pay $15 per week, and the judgment appealed from was entered after hearing evidence to the effect that the order had never been set aside or modified; that no petition for its modification had ever been presented; that appellant had paid nothing at all for more than two weeks past: had paid only $30 in five weeks past; had been irregular in making payments, once paying nothing from April 20th until August 11th, and again paying nothing from November 7th until January 5th; that his payments had averaged only $41 per month: that he was $465 in arrears; that he was a traveling salesman, receiving a salary of $2,200 and expenses when away from home; that appellant had married his present wife twelve days after the judgment was tered granting a divorce to his former wife and making this order for the support of the child; and that appellant's father had recently died, leaving a will under which appellant's wife was a beneficiary, and that from his estate she had received an automobile which appellant had used in making part of his points since then, though neither the size of the estate nor of her legacy was shown. It was also in evidence that appellant had been in living in South Dakota and was back in Indiana by reason of having come 1,100 miles to testify as a witness at the trial of a claim against his father's estate. It was also shown that the child was

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2. Divorce 312-Testimony to inability to attending school, and that its mother worked

pay no ground for disturbing finding of contempt.

That defendant testified to inability to pay to support of child in custody of divorced wife is no ground for overthrowing finding of guilt of contempt for willful failure and refusal to pay as ordered, under rule that judgment cannot be overthrown on appeal on weight of conflicting evidence.

in a hospital for $40 per month and her food, until the last month, when her salary was raised to $50.

This evidence, if believed and given credit, sufficiently supports the inference drawn by the trial court that appellant had willfully failed and refused to obey the order for the support of his child, and was guilty of contempt of court in so doing. And the fact that appellant testified that nearly Appeal from Circuit Court, Boone County; all of his salary was consumed in paying his Frank E. Hutchinson, Judge.

own "personal expenses" and keeping up Proceeding adjudging Alonzo C. Burgin in "headquarters" at his home town, and that contempt of court for failure to pay the he bought no more clothing than was “abse

Ind.)

(146 N.E.)

lutely necessary," and spent no money for anything not "absolutely necessary," cannot overthrow the finding and judgment on appeal. No facts were testified to in support of the conclusions thus asserted. And, even if appellant had testified to each item of his expenditures, this court coud not know that the trial court gave credit to his testimony. Neither may this court set aside a judgment, on appeal, upon the weight of conflicting evidence, where there is evidence which, if it stood alone, would justify its rendition. The judgment is affirmed.

GANNON, County Auditor, v. STATE ex rel. BRAHAM. (No. 24618.)

(Supreme Court of Indiana. Jan. 29, 1925.) 1. Counties 35(1)—Appeal from action of board of commissioners in ordering or refusIng to order election not proper remedy.

Appeal from action of board of commissioners in ordering or refusing to order election for relocation of county seat, under Acts 1913, c. 335, held not proper remedy.

2. Counties 35(1)—Appeal from determination of board of commissioners as to validity of election held proper remedy.

Appeal from determination of board of commissioners on judical questions as to valid counting and number of votes of county seat election, ordered by it under Acts 1913, c. 335, held proper remedy, since section 6 provides that election, if ordered, shall be conducted and regulated according to general laws of elections.

and results declared according to the law regulating general elections," except in the matter of providing election judges and clerks. That being so, an appeal under the general statute might be taken from the determination by the board of commissioners, upon canvassing the vote, of the judicial questions whether or not the votes counted by the returning boards were legal and were correctly counted and returned, and whether or not 60 per cent. of the legal votes cast and lawfully entitled to be counted were in favor of such relocation. Galvin v. Logan, 182 Ind. 647, 649, 106 N. E. 871.

The petition for a rehearing is overruled.

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13-Statute prohibiting heavy hauling on gravel roads in wet weather held not void for uncertainty.

Burns' Ann. St. 1914, § 2313 (Acts 1907, c. 234, § 1), prohibiting heavy hauling on gravel roads in wet weather, being capable of intelligible construction, and conveying adequate de

Appeal from Circuit Court, Jennings Coun- scription of evil aimed at, held not void for inty; John R. Carney, Judge.

On motion for rehearing. ruled.

definiteness or uncertainty.

Motion over- 4. Indictment and information 110(47)— Affidavit charging offense in language of statute states publio offense.

For former opinion, see 145 N. E. 283.

EWBANK, J. [1] The act for the relocation of the county seat and seat of justice of Jennings county (chapter 335, Acts 1913, p. 906) provides in the first section that upon presentation of a proper petition, signed by the required number of voters and freeholders, the board of commissioners shall order an election to be held. Obedience to this provision would not involve judicial action, and under the authorities an appeal would not lie from such an order, but the remedy for wrongful action of the commissioners in ordering or refusing to order an election would be something else than an appeal, if there were any remedy. Board, etc., v. Brown, 147 Ind. 476, 484, 46 N. E. 908.

Affidavit charging violation of Burns' Ann. St. 1914, § 2313 (Acts 1907, c. 234, § 1), prohibiting hauling on gravel roads in wet weather, being in language of statute, states public offense.

Appeal from Circuit Court, Clay County; John M. Rawley, Judge.

Noah Hunt was convicted of heavy hauling upon gravel road in wet weather, and he appeals. Affirmed.

Bernard C. Craig, of Brazil, for appellant. U. S. Lesh, Atty. Gen., and Connor D. Ross, First Deputy Atty. Gen., for the State.

TRAVIS, C. J. Appellant was convicted of the charge of heavy hauling upon a gravel road in wet weather.

The affidavit which charged the offense, [2] But the act further provides, by section 6, that, if an election is ordered, "such omitting the formal parts, alleged that, "on election shall be conducted in all respects, the 2d day of February, 1923, at the county returns made, votes canvassed and certified, of Clay and state of Indiana, one Noah Hunt,

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