« ForrigeFortsett »
ing of the concluding sentence of the opinion, , same on this appeal as it was on the former to wit:
appeal, that Anna M. Condon was the fee"As no allowance is to be made to Jacob simple owner of the lots described in her Glos and Lucy M. Glos, the cost taxed to them petition, as the evidence in the record is subwill not be taken out of the fund, but will be stantially the same. This court having extaxed against them personally."
pressly decided that Oscar E. Leinen had a This court further said:
vested right in the lots of Mrs. Condon on
the date the petition for condemnation was "There was no reason for referring the peti- filed and that no tben owner of void tax tion to a master, but the record shows that the deeds would be entitled to any remuneration reference was made upon the motion of Greene for the taxes, etc., paid in securing the same, as solicitor of Anna M. Condon and himself, Mrs. Condon necessarily succeeded to all and we cannot say from the record that anything which occurred before the master would such vested rights of Leinen by her deed require the taxing of all of his charges to from him to the lots, executed December Jacob Glos and Lucy M. Glos."
16, 1919, after the petition for condemna
tion was filed, as we held in our former deThe proceeding before the circuit court cision. Fee-simple title in Leinen to the with reference to the fund for distribution lots now owned by Mrs. Condon, subject to in the hands of the treasurer was regarded, certain liens in favor of Almina E. Wessling not as a proceeding in equity, but as a pro- and J. Kent Greene, was established by the ceeding at law. No objection of that kind introduction of a certain decree in the cirwas made in this court, and the court de- cuit court of Cook county dated January cided all contentions in that record against 19, 1907, in a proceeding by Leinen against the appellants. This court decided all ques- Almina E. Wessling and others under the tion before it at that time and reversed the Burnt Records Act and the complete recjudgment of the court and remanded the ord in that proceeding. The petition in the
This is apparent from the language burnt records proceeding in evidence sets of the opinion in which it is stated :
forth the complete chain of Leinen's title, "All errors and cross-errors will be disposed beginning with the patent of the governof without particular reference to them." ment of the United States, showing a connect
ed chain of conveyances therefrom vesting It was therefore also decided by this court title in him. The circuit court found the that Anna M. Condon was the owner in fee allegations true, and decreed, in substance, of the lots on the evidence then in the rec- that Leinen was the owner in fee simple of ord. The lower court properly decided that said lots, subject to the liens aforesaid, as the question of title, only, was to be settled against the whole world except Jacob Glos, by it on the remandment of the cause. This Emma J. Glos, Lucy M. Glos, and others is so because the question of remuneration holding certain tax deeds for and interests under the tax deeds was absolutely and final in the same, as to whom the proceeding was ly disposed of by this court in the former dismissed. It is virtually conceded in this decision, because it was a question of law case that said decree vested title in fee simsettled by the court and no right of trial ple in Leinen except as to the parties in. by jury was involved. On the question of ti- terested in the tax deeds and who were distle, on remandment the parties were entitled missed as parties to that proceeding. to a jury, if such was demanded, as appel- [3, 4] The claim of appellants in this case lants had a right to show they had title to is that that decree of the circuit court is the lots by their tax deeds. This is so be- void as to them, as the proof in this record cause several questions of fact might arise does not establish the fact that their tax on another trial in case appellants sought deeds are void, and that the burden of esto prove that they had complied with every tablishing such facts was on Anna M. Conrequirement under the law to entitle them don. This is a misconception of the law. to tax deeds.
Mrs. Condon established her title when she The evidence in the record is substantially introduced her deed from Leinen, and the the same on this appeal as it was on the burden was then cast upon appellants to former appeal. No jury was demanded. prove the validity of their tax deeds. There There was no objection to the reference to is no more reason for asserting that Mrs. the master except as aforesaid, and no ques. Condon had the burden of showing the invation was made in the lower court, and none lidity of appellants' tax deeds, than for the is made in this court, as to his costs and assertion that the burden was on appellants charges being taxed as legal costs in this to establish that Mrs. Condon had no title to case. So the only questions for us to pass the premises. Appellants merely introduced upon on this record are: First, as to wheth- their tax deeds and proof as to the amount er or not Anna M. Condon was the fee-simple they had paid out in obtaining the same, owner of any part of the lots; and, second, for taxes, penalties, etc. Such proof is alas to whether or not appellants are owners together insufficient to establish any title of any part of the lots in fee simple.
whatever in the holders of the tax deeds. [1, 2] Our decision must necessarily be the Under section 224 of the Revenue Act (Smith
(146 N.E.) Hurd Rev. St. 1923, c. 120, 8210), a tax deed mer record and this court necessarily passed executed by a county clerk is only prima upon that question. There was therefore facie evidence of these facts: First, that no occasion for the circuit court of Cook the real estate conveyed was subject to tax- county to order the funds paid into the hands ation at the time assessed and had been of the county treasurer, to abide the result of listed and assessed in the time and manner the proceeding to register title under the required by law; second, that the taxes or Torrens Act, as that suit has abated and is special assessments were not paid at any abandoned. Besides, appellants are by the time before sale; third, that the real estate former judgment of this court estopped to conveyed had not been redeemed from sale raise that question in this proceeding. at the date of the deed; fourth, that the  There is no merit in the contention real estate was advertised for sale in the that Anna M. Condon was required to make manner and for the length of time required as parties defendant to her petition Walter by law; fifth, that the real estate was sold A. Glos, Emma J. Glos, or any of the other for taxes or special assessments, as stated grantees named in the two quitclaim deeds in the deed; sixth, that the grantee in the executed by Jacob Glos and wife. These deed was the purchaser or assignee of the pur- deeds only purported to convey an interest chaser; and, seventh, that the sale was con- | in land or lots acquired by Jacob Glos unducted in the manner required by law. There der the same tax deeds held void by the lowwas no evidence in the record that there had er court. They were all recorded after the been a compliance with the provisions of sec- condemnation suit was brought, and they tion 216 of the Revenue Act (section 202) were bound by the litigation condemning the with reference to notice. There was no evi- lots and by the order of the court entered dence that Jacob Glos had made an affidavit therein as to the funds. If they wanted to for a tax deed, as required by section 217 litigate their right to the funds, they had a of the Revenue Act (section 203). No pre- right to do so by going into the circuit court cept or judgment is shown. The court, there as did Mrs. Condon and the appellants and fore, was warranted in declaring the tax make whatever claim to the funds they had, deeds void. Gilbreath v. Dilday, 152 Ill. if any. Mrs. Condon made no one a party to 207, 38 N. E. 572; Gage v. Nichols, 135 Ill. her petition, and she was not required to 128, 25 N. E. 672.
All that she had to do under her pe(5-7] Appellants reargue the question that tition was to establish her title, and it was they are entitled to remuneration under their the duty of appellants, and all parties claimtax deeds, and make reference to the fact ing under them, to do likewise. that an application to register title to the
We adhere to this court's decision on the lots in controversy under the Torrens Act was former record and see no occasion for modi. made by Oscar E. Leinen in 1909, and that fying the same in any particular. there was an offer in that proceeding to do
The judgment of the circuit court is af
firmed. 'equity by reimbursing the holders of the
Judgment affirmed. void tax titles. The evidence in the record concerning that is to the effect that that proceeding was abandoned, although it appears that the proceeding was never dismissed by BARKER V. STATE. (No. 24620.) Leinen in his lifetime. Leinen is dead and the proceedings as to him abated by his death. (Supreme Court of Indiana. Feb. 25, 1925.) The former decision of this court, however, I. Indictment and information Cam 137(7) is conclusive of all of appellants' rights to Motion to quash affidavit as whole properly claim remuneration under the tax deeds, as
overruled, where some of counts sufficient. it was decided in that case that they were
Motion to quash affidavit containing six not entitled to any remuneration out of the counts in a liquor prosecution as a whole was funds. The rule of law is that when litiga- properly overruled, where four counts were
obviously sufficient. tion is prosecuted to an appellate tribunal and questions of law are decided, all such 2. Criminal law Cow 1167(3)–Overruling of mo. questions relating to the same subject-matter
tion to quash affidavit in liquor prosecution
held harmless. which were open to consideration and could
Overruling of motion to quash affidavit in have been presented are res judicata, whether they were presented or not. This is true imposed fine and imprisonment for 30 days at
liquor prosecution was harmless, where verdict whether the judgment was reversed and the state farm, as this amounted to an acquittal of cause remanded or the judgment affirmed. felonies attempted to be charged in counts Lusk v. City of Chicago, 211 111. 183, 71 N. alleged to be defective. E. 878; People v. Waite, 243 lll. 156, 90 3. Criminal law paw 970 (7)--Motion in arrest N. E. 183; Village of Oak Park v. Swigart,
of judgment challenging sufficiency of indict. 266 Ill. 60, 107 N. E. 158. As a matter of ment good in part held properly overruled. fact, the evidence as to Leinen's application Motion in arrest of judgment in liquor prosfor registration of his title was in the for- | ecution under Burns' Ann. St. 1914, § 2159
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
(Acts 1905, c. 169, § 283), challenging suffi- , charged in the counts which counsel say ciency of facts stated in indictment containing were defective, thereby affirmatively showsix counts as a whole, was properly overruled, I ing that his substantial rights were not prej. where indictment sufficiently charged several | udiced even if the ruling had been erroneous. misdemeanors.
 The motion in arrest of judgment chal4. Criminal law 951 (1)-Motion for new lenged the sufficiency of the facts stated in
trial properly overruled, where reasons ex the indictment as a whole to constitute a isted when motion in arrest filed.
cause of action, and since it did sufficiently Motion for new trial was properly over-charge the commission, not only of one, but ruled, where filed nearly a month after a motion in arrest of judgment, for reasons existing mitted in overruling it.
of several misdemeanors, no error was com
Bass v. State, 188 when motion in arrest was filed.
Ind. 21, 23, 120 N. E. 657; Bottorff v. BotAppeal from Circuit Court, Johnson Coun- torff, 190 Ind. 90, 92, 129 N. E. 478; section ty; Fremont Miller, Judge.
2159, Burns' 1914; section 283, ch. 169, Acts
1905, p. 646. Irving Barker was convicted of violating
 Filing a motion in arrest of judgment the Probibition Law, and he appeals. Af-cuts off the right afterward to make a mofirmed.
tion for a new trial, unless for reasons that Thos. E. Garvin, of Indianapolis, for ap- did not exist at the time the motion in arrest pellant.
was filed, and no questions are presented by U. S. Lesh, Atty. Gen., for the State. appellant's motion for a new trial filed near
ly a month after the motion in arrest had EWBANK, J. Appellant was prosecuted been made and ruled on. Page v. State upon an affidavit in six counts, all of which (Ind.) 139 N. E. 143, 145; Earle v. State purported to charge that on the 9th day of (Ind.) 142 N. E. 405, 407; Boos v. State, 181 February, 1923, he had offended against the Ind. 562, 105 N. E. 117; Turner v. State, 175 prohibition laws of the state; each count un. Ind. 1, 3, 93 N. E. 225. dertaking to charge a different offense. A The judgment is affirmed. motion in general terms “to quash the affidavit filed herein against him for the following reasons," setting out certain alleged objections to the sufficiency of the different MELAND V. STATE. (No. 24580.) counts, was overruled, and the defendant (Supreme Court of Indiana. Feb. 24, 1925.) (appellant) excepted.
 The jury returned a general verdict, on 1, False pretenses 34— Indictment held suf. June 4, 1923, finding the defendant "guilty
ficient to charge false representation of a as charged in the affidavit in this case, and
present fact. that he be fined $500 and
Indictment in substantial conformity with oned in the Indiana State Farm 30 days.” Burns' Ann. St. 1914, & 2588 (Acts of 1905, C. On the same day defendant filed a motion client's signature to a promissory note by rep
169, § 677), charging attorney with obtaining asking "that the judgment be arrested on the resenting that deposit with clerk was necesfollowing grounds, to wit,” specifying that sary, held sufficiently to charge false representhe facts stated in each count of the affida- tation of a present fact. vit did not constitute a public offense. This 2. Judges am25(1)—Second special judge held motion was overruled, and defendant except
authorized to sign record of action taken by ed. Almost a month later, on July 3d, he
predecessor. filed a motion for a new trial, which was
Where special judge died without signing overruled and he excepted. This appeal is record of proceedings on last day of trial when from a judgment upon the verdict. The mo- finding was made, second special judge was tion to quash challenged the sufficiency of the authorized to sign record of action taken by affidavit as a whole, and since counsel do his predecessor in view of Burns' Ann. St. not even suggest that four of the counts 1914, § 1451 (Rev. St. 1881, $ 1331). were defective in any respect, and obvious- 3. Criminal law Ows 1144(19)-Appellate Court ly they were sufficient, the court did not err would presume that signing of record by sec. in overruling the motion. One good count is ond special judge was in accordance with law. sufficient to withstand a general motion to Where second special judge signed record quash the affidavit as a whole, however de- of action taken by his predecessor on last day fective the other counts may be. Ledger
that he held court before his death, Appellate wood v. State, 134 Ind. 81, 83, 33 N. E. 631; firmative showing as to when record was signed,
Court would presume, in absence of any afBryant v. State, 106 Ind. 519, 550, 7 N. E.
except that signature appeared at conclusion 217.
of entry, that record was signed in accordance  The verdict fixing the penalty at a fine with law. and imprisonment for 30 days at the Indiana State Farm amounted to an acquittal of ap Appeal from Circuit Court, Allen County; pellant of the felonies attempted to be / Sol A. Wood, Judge.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) Hans C. Meland was convicted of obtaining of this indictment suggested by counsel for by false pretenses a signature to a promis- the appellant is the assertion that it charges sory note, and he appeals. Affirmed.
“merely the representation of a thing that Hans C. Meland, pro se.
may happen in the future and not the repU. S. Lesh, Atty. Gen., for the State.
resentation of an existing fact.” But the
allegation that he falsely represented to Mrs. EWBANK, J. Appellant, as defendant be-Noonan “that $300 in cash was required to low, was charged by indictment with the of- be placed in the hands of the clerk of said fense of obtaining by false pretenses the sig- superior court by him as her attorney for nature to a promissory note of a woman for her in perfecting said appeal,” and thereby whom he was acting as attorney. A special obtained her signature to a note for that judge having been appointed upon his appli- amount which he cashed, sufficiently charged cation, the cause was submitted for trial, and the false representation of a present fact. a finding was made and entered on the order No error was committed in overruling the book that he was guilty as charged, and for motion to quash the affidavit. his offense should be imprisoned in the coun
 As to the act of the second special judge. ty jail for six months and fined $50. The in signing the record of the action taken by special judge died without having signed his predecessor on the last day that he held the record of proceedings on the last day of court before his death, the statute expressly the trial when the finding was made, and a authorized this to be done. Section 1451, month later another special judge was ap Burns 1914; section 1331, R. S. 1881; Owen v. pointed and qualified, by whom judgment Harriott, 47 Ind. App. 359, 94 N. E. 591. was rendered some months later in con
 And in the absence of any affirmative
The judgment is affirmed.
SIMPSON v. STATE. (No. 24588.)
common-law crimes, and section 2040. be placed in the hands of the clerk of the trial court by hiin as her attorney in per- 2. Criminal law Om 13—Act making transpor. fecting her appeal, “whereas in truth and in
tation of liquor in automobile offense held not fact this was not required; that believing
void as not designating place of imprison
ment of offender under 30 years of age. and relying on said false representations and
Acts 1923, c. 34, § 1, making transportation being deceived thereby, having no means of of intoxicating liquor in automobile an offense, learing the facts to the contrary, she did af- held not void as not designating place of imfix her signature to said note, by reason of prisonment of offender under 30 years of age. such reliance and belief, and that defendant and over 16, in view of Burns' Ann. St. 1914, received and obtained possession thereof, and $8 2151, 9907. disposed of the same for value, before ma- 3. Criminal law 59(5)-Person aiding in turity, to an innocent holder thereof, to the
commission of felony is subject to prosecu. injury of said Josephine E. Noonan, con- tion and conviction same as principal. trary, etc.
Person aiding in commission of felony is  The only objection to the sufficiency subject to prosecution and conviction as if he
On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
were principal, in view of Burns' Ann. St. 1914, EWBANK, J. Appellant was convicted on $ 2095.
a charge of unlawfully transporting intoxi4. Intoxicating liquors @w 139—Person know. cating liquor in an automobile; the jury
Ingly helping to transport intoxicating liquor finding that he was 28 years of age. He has in automobile is equally guilty with owner of assigned as error the overruling, severally, liquor and of car.
of his motions for a new trial, to quash the A person knowingly helping to transport affidavit, in arrest of judgment, and to modiintoxicating liquor in an automobile by caring fy the judgment. for a bottle and a jug containing the liquor in  The affidavit upon which he was prosthe back seat to keep them from breaking is ecuted charged that on, etc., at, etc., appelequally guilty with the owner of the liquor and lant and two other defendants “did then and of the car, notwithstanding such person's non- | there transport intoxicating liquor in an auinterest in either, in view of Burns' Ann. St. tomobile, contrary,” etc. The only objection 1914, § 2095.
to its sufficiency suggested by counsel is that 5. Intoxicating liquors Om 210 Affidavit,
it does not allege that he "feloniously” did charging transportation of intoxicating liq. the alleged acts, which averment would be uor, held to charge felony and not misde necessary in charging a felony at common
law. But common-law crimes are abolished
Section 237, Burns' Affidavit, based on Acts 1923, c. 34, § 1, by statute in Indiana. charging transportation of intoxicating liquor 1914 (section 237, R. S. 1881). And an inin automobile, held to charge a felony and not a dictment is only required to set out “a statemisdemeanor, under Acts 1917, c. 4, § 4, as ment of the facts constituting the offense in amended by Acts 1921, c. 250, § 1, and Acts plain and concise language without unneces1923, c. 23, § 1.
sary repetition.” Section 2040, Burns' 1914 6. Criminal law 829(1)-Refusal to give
(section 1731, R. S. 1881). The statute under requested instructions as to matters suff. which appellant was prosecuted and convictciently covered by instructions given held not ed (section 1, c. 34, Acts 1923, p. 108) does error.
not use the word “feloniously" in defining
the offense forbidden, nor necessarily imply Refusal to give requested instructions as to matters sufficiently covered by instructions that the act prohibited must be done with given held not error.
felonious intent in order to be criminal. The
affidavit described the alleged offense in the 7. Criminal law Om 1172(2)—Instruction per language of the statute, and that was suffitaining to drinking of liquor from bottle while cient. Asher v. State (Ind. Sup.) 142 N. E. riding in automobile, as item of evidence of 407; Id. (Ind. Sup.) 143 N. E. 513; Voldertransportation, held not reversible error.
auer v. State (Ind. Sup.) 143 N. E. 674. In prosecution under Acts 1923, c. 34, § 1,  Appellant further insists that said act for unlawful transportation of intoxicating liq. of 1923, supra, is void because it does not uor in automobile, instruction pertaining to designate the place where a person shall be drinking of liquor from bottle while riding in imprisoned who violates it. The act recites automobile, as item of evidence of transportation, held not to require reversal, where the that any person who shall transport intoxi. reference to drinking was merely incidental to cating liquor in any automobile or other vethe general purport of a correct instruction as hicle “shall be guilty of a felony, and upon to acts constituting guilt, and the evidence conviction shall be imprisoned not less than clearly established accused's active participa- one year or more than two years, and fined," tion in the transportation of the liquor.
etc. Another statute enacts that
"In all cases of felony tried before any court 8. Intoxicating liquors 210—Affidavit, alleg. ing transportation of intoxicating liquor in male person, be found guilty of any crime other
or jury in this state, if the defendant, being a automobile, held not to allege misdemeanor than treason or murder, it shall be the duty of as distinguished from felony.
the court or jury to further find whether he is An affidavit, based on Acts 1923, c. 34, 8 1, over 16 and less than 30 years of age. If charging accused with having transported in
between such ages
* the court toxicating liquor in automobile, held not to
shall sentence him to the custody of charge a misdemeanor as defined in chapter 23, the board of managers of the Indiana reformag 1, as distinguished from the felony it alleged tory, to be confined in said reformatory, or at as defined in chapter 34 of such acts.
such other place as may be designated by such
board where he can be safely and properly Appeal from Circuit Court, Pike County; cared for,” etc. Sections 2151, 9907, Burns' John F. Dillon, Judge.
1914 (section 275, c. 169, Acts 1905, p. 64;
section 8, c. 53, Acts 1897, p. 73). Henry Simpson was convicted of trans
The law sufficiently designated the place porting intoxicating liquor in an automobile,
where appellant should be imprisoned. and he appeals. Affirmed.
No error was committed in overruling the Oscar Lanphar, of Princeton, for appel. motions to quash the affidavit and in arrest lant.
of judgment. U. S. Lesh, Atty. Gen., for the State.
There was undisputed evidence that ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexas