(146 N.E.) premises. They also contend that there is court that any proper building might be insufficient evidence to support any finding that they were in any way seeking to establish any public garage, and, further that the evidence shows that they have maintained a public garage upon their premises since before the appellees' church was established, and for that reason their garage does not come within the ordinance. erected without prejudice to the rights of either parties and that no public garage would be operated pending trial of the cause. Pending the trial, appellants completed their building and put a tenant operating a paint shop therein, and the appellees com. menced the addition to the old frame church, necessitating discontinuance of all meetings therein, and the addition, while practically completed, had not been dedicated, but dedication services were set for the Sunday following the trial. The evidence is sufficient to sustain the decision of the court. Affirmed. PULSE et al. v. BOARD OF COM'RS OF It appears by evidence that a German language Methodist Episcopal Church congregation built a frame church building at the northwest corner of East Tenth street and Keystone avenue in 1901. An English language congregation of the Methodist Episcopal Church built a brick church on the south of East Tenth and west of Keystone, directly south across the street from the frame church. Both buildings were the property of the M. E. Church, though held by the separate congregations. The English speaking congregation prospered and increased beyond the capacity of their building, which was not built to permit enlarging. Evidence 43 (2)—Judicial knowledge takit. The German congregation languished, and these conditions finally resulted in a sale and transfer of the frame church building from the German congregation to the English language congregation about September 1, 1922. The frame church was about 40 feet north and south, and about 60 feet east and west, and the long way of the lot on which it was built ran north and south along the west side of Keystone avenue. The English language congregation bought this property with the view of building an addition northward from the old frame church toward the alley and along the west side of Keystone avenue, and during the pendency of this section and before trial had constructed the addition. During the negotiations for the transfer of this old frame church from one congregation to the other, lasting about eight months, no services were held therein, but there was no abandonment of the building for church purposes, and as soon as the English speaking congregation acquired it, they commenced holding religious meetings therein, including prayer meetings, Sunday school classes, bible school, etc., but up to the time of trial that congregation had never held preaching services therein. Appellee, when it purchased the building, contemplated the continued use of the building in connection with the building across the street for religious, educational, and recreational purposes. About the last of 1922 or first of 1923, the appellants began en of auditor's transcript of proceedings of board of commissioners. Of the complete transcript of the proceedings of the board of county commissioners made by the auditor, as required by Burns' Ann. St. 1914, § 6023, being part of the record, the circuit court on appeal from the commissioners, and the Appellate Court, on appeal from the circuit court, take judicial knowledge. 2. Counties 207 (1)-Acceptance of payment, of part of claim allowed by commissioners, waiver of right to litigate in regard to balance. Claimants, by accepting payment of the part of claim allowed by county commissioners, waived right further to litigate any question in regard to the balance. their efforts to get a permit to construct a Edgar E. Hite and Wickens & Hamilton, all of Greensburg, for appellants. Thomas E. Davidson, of Greensburg, for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes NICHOLS, J. On April 17, 1922, a petition | 618. See, also, Doctor v. Hartman, 74 Ind. was filed in the office of auditor of Decatur county for the construction of a free macadam road in Washington township said county. In due course of procedure, which included the establishment of the road and the letting of the contract for its construction to appellants, the road was completed and appellants filed their claim for their compensation for the construction thereof, which included compensation for extra services. After due consideration, the board of commissioners, on January 6, 1914, made the following entry of allowance of such claim to wit: 221. [4] When it appears on the face of the record, as in this case, that the board of commissioners had no jurisdiction, it is the duty of the court to dismiss the appeal. Fitch v. Long, 29 Ind. App. 463, 64 N. E. 622; Harrison v. Western Const. Co., 41 Ind. App. 6, 83 N. E. 256; City of Crawfordsville v. Brown, 45 Ind. App. 592, 91 N. E. 252; Prather v. Brandon, 44 Ind. App. 45, 88 N. E. 700; Wildman v. Rider, 23 Conn. 172. Other questions are presented, but we do not consider them, for under these authorities it conclusively appears that there was no error in the order dismissing the appeal. Affirmed. COOPER v. FARMERS' TRUST CO. (No. 11941.) "The contractors, Pulse and Porter, having filed a bill for more than the contract price and for more extras than the board had ordered done, the board, after due consideration, decided that they can pay no more money than is available. They decided to pay the contractors the balance of the available money and do hereby make an order that the auditor herein pay (Appellate Court of Indiana, Division No. 1. the contractors the sum of six hundred eight dollars and eighty-two cents ($682.80), that would still leave a balance due contractors of $1,358.08, but the commissioners claim that they did not make any order for these extras, also it was understood when the contract was let that the contractors would keep within the money available and the matter is continued." [1-3] There is an apparent inadvertence in copying the amount of such allowance. We shall assume, because of statements elsewhere, that the amount is $680.82. Thereupon appellants accepted payment of the said sum of $680.82, and subsequently thereto filed their claim for the said sum of $1, Feb. 3, 1925.) 1. Appeal and error 865-Denial of motion for continuance not reviewable on appeal in statutory action to set aside default. In action, under Burns' Ann. St. Supp. 1921, § 405, to set aside default judgment, court may not properly consider denial of motion for continuance, as it might in action under Burns' Ann. St. 1914, §§ 645, 646, to review judgment. 2. Judgment 460 (3)-Complaint in statutory action to set aside default judgment held demurrable. Complaint in action under Burns' Ann. St. Supp. 1921, § 405, to set aside default judgment entered under Burns' Ann. St. 1914, § 410, upon denial of continuance on ground that plaintiff's counsel was required to be at another place on the day set for trial, but which did not allege where plaintiff and his attorney were on such day, nor contain any showing that they could not have attended, held demurrable. Appeal from Superior Court, Martin County; Clinton H. Givan, Judge. Action by Thomas Cooper against the Farmers' Trust Company, trustee, to set aside default judgment. Judgment on demurrer for defendant, and plaintiff appeals. Affirmed. 358.08 which claim was disallowed by the L. Rosenberg, of Indianapolis, for appelHarry C. Hendrickson, of Indianapolis, for appellee. THOMPSON, J. This is an action by appellant, Thomas Cooper, against appellee, Farmers' Trust Company, trustee, to set aside a default judgment taken against appellant. There was a case in the Marion superior court entitled "Farmers' Trust Company, Ind.) COOPER v. FARMERS' TRUST CO. Trustee, v. Thomas Cooper." The defendant was ruled to answer on the 26th day of September, 1923, at which time said cause, by order of the court, was set for trial October 2, 1923. Defendant, by his attorney, appeared on October 1, 1923, and filed an affidavit asking for a continuance, and among other reasons stated that he had a case set for trial at Noblesville, Ind., on the 2d of October, 1923, which case had been set for trial for some time, and that it would be impossible for said attorney to attend the trial in the superior court of Marion county on that date. The court overruled the motion for a continuance, and on October 3, 1923, the court rendered judgment by default against appellant. On October 27, 1923, appellant filed his complaint to set aside the default rendered on October 3d, basing said action on section 405, Burns' 1921, which provides: "The court shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings, on complaint filed within two years." To this complaint the appellee herein filed a demurrer on the grounds that said complaint did not state facts sufficient to constitute a cause of action. The demurrer was sutained by the court, whereupon appellant refused to plead further, and the court rendered judgment against appellant. Appellant then excepted and appealed. demurrer to appellant's complaint is the sole alleged error relied upon for the reversal of this cause. [1, 2] This is not an action to review a judgment as provided for in sections 645, 646, Burns' 1914, but an action to set aside a default, under section 405, Burns' Supp. 1921. Therefore, it would not be proper for this court to consider the ruling of the lower court on the motion for continuance. In the former case appellant, in his motion for continuance, stated that he had another case set for trial at Noblesville, Ind., on October 2, 1923, the same date as that of the trial under The complaint nowhere alconsideration. leges where the plaintiff or his attorney was on October 2, 1923, or on the 3d of October, 1923, the day on which the judgment on default was rendered, nor is there any showing in the complaint why they could not be there, and for all we know from the complaint in this case they both might have been in court on that day. Section 410, Burns' 1914, provides: "If, from any cause, either party shall fail to plead or make up the issues within the time prescribed, the court shall forthwith enter judgment as upon a default, unless, for good cause shown, further time be given for pleading, on the payment of the costs occasioned by the delay." Finding no error in the action of the lower court in sustaining the demurrer to the complaint, and that being the only alleged error The action of the court in sustaining the complained of, the judgment is affirmed. 146 N.E.-22 (239 N. Y. 207) (Court of Appeals of New York. Dec. 16, 1. Appeal and error 358-Final judgment dismissing complaint after severance from counterclaims held appealable without permission. tion. From so much of a unanimous judgment of the Appellate Division (209 App. Div. 260, 204 N. Y. S. 501) as reversed an order denying a motion made by defendant for judgment on the pleadings and granting such judgment dismissing complaint, plaintiff appeals. Judgment of Appellate Division reversed, and order of Special Term affirmed. The judgment of the Appellate Division also provided on the application of Where Special Term denied defendant's motion for judgment on pleadings, which action defendant's counsel, and with consent of Appellate Division reversed, and made an orplaintiff's counsel, that the cause be separatder granting such motion and severing plain-ed into two actions, one of which should emtiff's alleged cause of action from defendant's brace plaintiff's alleged cause of action and alleged counterclaims so as to make plaintiff's the other defendant's alleged counterclaims. action a separate one, entry of final judgment See, also, 199 App. Div. 513, 192 N. Y. S. on such order dismissing plaintiff's complaint was a reversal, and appealable without permission. 2. Corporations 1-Even though stockholder owns controlling interest, corporation is separate from him. A corporation is a creation ordinarily separate and distinct from one of its stockholders, even though that stockholder owns control of its capital stock. 3. Shipping 27-Complaint held not to show affirmative misrepresentation by buyer as to its capacity to buy steamship or any concealment from seller of a known incapacity. In suit to recover amount paid on contract for sale of a steamship which United States Shipping Board refused to consent to transfer to plaintiff because it did not satisfactorily appear that an American citizen had controlling interest in its stock, based on provision in contract that performance of contract had become impossible, complaint held not to show on its face that there was any affirmative misrepresentation by plaintiff in respect of its capacity to buy or any concealment from seller of a known incapacity. 4. Shipping 27-Contract for sale of steamship held not to require buyer to pay excessive amount demanded by foreign corporation to secure release of buyer's stock. 154. Frederick B. Campbell, of New York City, for appellant. both of New York City, for respondent. Herman S. Hertwig and Russell T. Mount, HISCOCK, C. J. There was made between plaintiff and defendant in February, 1918, a contract for the purchase and sale of a steamship at the price of $185,000, and of which $50,000 was paid at or before the execution of the agreement. In addition to many other provisions which are not involved in the present controversy the contract contained a clause whose interpretation is decisive of this appeal. Said clause reads as follows: "7. Neither party to this contract shall become liable to the other in any manner whatsoever for failure to perform this contract owing to perils of the seas or of navigation, arrests, restraints or acts of princes, rulers, governments or people, or owing to any other cause beyond the control of any such party. Provided, however, that in the event that this contract shall be or become impossible of performance owing to the causes hereinabove mentioned or any of them, the sums paid to the vendor by the purchaser shall be forthwith repaid to the purchaser by the vendor without interest." Contract for sale of steamship, providing that sums paid by plaintiff should be repaid if contract could not be performed because of certain perils or causes beyond control of parThe following controlling facts calling for ties, which sale United States Shipping Board the interpretation of said clause are alrefused to sanction because it did not satis-leged in the complaint, which has been disfactorily appear that an American citizen owned a controlling interest in plaintiff's stock, missed as not stating a cause of action for which was held in escrow to secure debt owing to alien, held not to require plaintiff, in order to release itself and vendor from liability in order to consummate contract, to pay excessive amount demanded by alien creditor as a condition to release of its stock. the recovery back under said clause of the amount paid on the contract: The plaintiff is a corporation organized under the laws of the state of New York. At the time the agreement was made all of its capital stock had been placed in the possession of one Engel, who was a citizen of the United Appeal from Supreme Court, Appellate Di-States, under a written agreement dated vision, First Department. June 20, 1917, between the Interchange Action by the American Union Line, Inc., Limited, a Danish corporation, and one Shaagainst the Oriental Navigation Corpora-piro, a citizen of the United States, whereby *Reargument denied 239 N. Y. 634, 147 N. E. 227. (146 N.E.) it was provided that said stock was to be held by said Engel in trust until the amount owing by plaintiff to said Interchange Limited should have been paid, and that on the payment of such indebtedness Engel should deliver to Shapiro or his designees all of the capital stock thenceforth to be his or their property free, clear and discharged of all claims or interest therein of said Interchange Limited. Said agreement also contained the provision that prior to June 23, 1917, a statement of the amount due from plaintiff to Interchange should be prepared and certified in writing by Interchange and Shapiro, and which amount should be paid within a certain time therein specified. Notwithstanding repeated demands and attempts by plaintiff to procure it so to do, said Interchange, which had possession of the necessary books and papers, neglected and refused to prepare or certify any statement of the indebtedness claimed to be due to it from plaintiff, and finally demanded the payment of the sum of $100,000, which amount was not due to it, and which plaintiff and Shapiro declined to pay. | possible effort to secure a statement from and settlement with Interchange to expedite said litigation and to procure the governmental consent to the transfer of the vessel. Upon these allegations and others which supplement but do not change the tenor thereof a demand for the return of $50,000 which plaintiff had paid on the contract is based under the provision in the contract first above quoted on the ground that performance of the contract had become impossible. These allegations are to be considered in the light of certain United States statutes known as the United States Shipping Act and the United States Trading with the Enemy Act, and of which the provisions of the Shipping Act are the ones especially applicable to this case. They prohibited the transfer of any vessel such as was the one involved in this case to any one not a citizen without the approval of the Shipping Board, and defined citizenship in the case of a corporation as follows: "No corporation ✦ shall be deemed a citizen of the United States unless the controlling interest therein is owned by citizens of the United States." It was under this provision that the governmental boards created refused to permit the transfer of the vessel because of the situation of plaintiff's capital stock, which has been fully described. In May, 1918, the War Shipping Board having ascertained the situation of this capital stock refused, under certain statutory provisions, to which reference will hereafter be made, to consent to the transfer of the ship as provided in the agreement between plaintiff and defendant, and continued in this decision notwithstanding all of the efforts of plaintiff to procure it to modify the [1] With this rather lengthy but necessame. The ground of such decision was that sary statement of facts we come to the quesunder the situation hereinbefore disclosed tions presented by the appeal. Some conand the United States statutes pertaining to tention is made that it will not lie without such subject it did not satisfactorily appear permission, which was not obtained. We that plaintiff's stock was owned by citizens think that there is nothing in this argument. of the United States. In accordance with an The Special Term denied defendant's moinformal suggestion made by the Board that tion for judgment on the pleadings; the no consent would be given to such transfer | Appellate Division reversed this action, and until the rights of Shapiro to the ownership made an order granting said motion, and of plaintiff's capital stock had been duly adjudicated by a court of competent jurisdiction, Shapiro commenced an action in the United States court against said Interchange, and to which plaintiff was made a party, asking to have ascertained the amount of indebtedness for which said capital stock was being held and to have the ownership of said stock by said Shapiro adjudicated. Notwithstanding every possible effort was made by plaintiff to expedite said suit, it was not able until after the date for the transfer of said ship had passed to secure judgment in said suit and which fixed the amount of the indebtedness due from plaintiff to said Interchange at $1,702.66 instead of $100,000, which said Interchange had demanded. By general as well as special statements it is alleged that plaintiff made every also, on the motion of defendant's counsel with the consent of plaintiff's counsel, made an order severing into a separate action plaintiff's alleged cause of action. On this order final judgment was entered dismissing plaintiff's complaint which is to be regarded as one of reversal. Sultzbach v. Sultzbach, 238 N. Y. 353, 144 N. E. 638. We therefore have a final judgment dismissing plaintiff's complaint, and see no reason why the appeal does not lie. This brings us to a consideration of the merits of the appeal and leads us back to the clause relating to impossibility of performance which has already been quoted and which we are called on to interpret from the standpoint of the plaintiff for the purpose of deciding whether under it the complaint does allege a right to the recovery of the money paid on the contract. |