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(146 N.E.) ing in the will to warrant it. Limited to, the same parties in interest, if it affirmativethe point now being considered, and as there-ly appears that the present matters in issue on advised by the record before us, the will were in the former case put in issue and of Henry G. Smith gave to appellant a life tried, or might, within the issues framed, estate, and to her son, Simeon, the fee in have been completely adjudicated. Gutheil remainder which, upon his death, descended v. Goodrich, 160 Ind. 92, 66 N. E. 446; Walb to his mother subject to the interest of a v. Eshelman, 176 Ind. 253, 94 N. E. 566; child or children to her born alive thereafter. Beveridge v. New York, etc., R. Co., 112 N. And, we may here add, the contingency of Y. 1, 19 N. E. 489, 2 L. R. A. 648; Eckert appellant giving birth to another child or v. Pickel, 59 Iowa, 545, 13 N. W. 708; Cromchildren alive is determined only upon her well v. Sac County, 94 U. S. 351, 24 L. Ed. death. Dustin v. Brown, 297 Ill. 499, 130 N. 195; Russell v. Place, 94 U. S. 606, 24 L. D. 859. But, should one or all of such chil- Ed. 214. dren die intestate, unmarried, and without [13] Whether the issue in the instant case issue during the lifetime of the mother, she was put in issue, and either affirmed or dewould inherit from such child a parent's nied in the former decision, is a question share.

obviously material to the rights of those who [10] The two estates, possession and re- did not give their consent to the former mainder, constituted the whole estate of judgment. The entire evidence submitted on which the testator died seized, and the unit- this subject is the pleadings in both actions. ing of these estates in one person, as was The issues between litigants in a contested done, is all that is required to vest the fee case are defined by the pleadings, and the adin such person, subject, however, in this case mission of evidence is controlled by the isto the contingency above noted.

Hence it is perfectly natural to as[11] Appellees further confidently insist sume that the findings upon a trial were that if the foregoing construction of the will supported by the evidence, and the judgment of Henry G. Smith be correct, appellant is, a judicial determination of the issues. While barred from asserting any interest other than every reasonable presumption will be ina life estate in the real estate in question by dulged to sustain a judgment as entered, yet virtue of a judgment entered by the Jack the rule long recognized by this court is "that son circuit court January 17, 1888, in an ac- judgments are presumptively only conclusive tion wherein appellant was the sole plain- against parties in the character in which tiff, and certain of these appellees and oth- they sue or are sued.” McBurnie v. Seaton, ers, privies to the parties to that action were 111 Ind. 56, 12 N. E. 101; Paul v. Barnbrook, the defendants. The judgment thus relied 58 Ind. App. 607, 106 N. E. 425. on, in so far as the same is material here, [14] In these considerations, it is imporappears in the preliminary statement of this tant to remember that “The party who inopinion. The answers averring former advokes the doctrine of former adjudication judication were challenged by demurrers for must be one who tendered to the other an want of facts, in that, the pleadings in the issue to which the latter could have demurformer action were not incorporated in ei- red, or pleaded." In other words: ther of these answers. Each of the answers embodied the judgment relied on, and aver. the principles of res adjudicata can be in

"Ordinarily, four things must concur before red facts showing that the point at issue in voked: (1) A suit. (2) A final judgment. the instant case was formerly adjudicated (3) Identity of subject-matter. (4) Identity between the parties to the present action. of parties.” Jones v. Vert, 121 Ind. 140, 22 They were sufficient to withstand the de- N. E. 882, 16 Am. St. Rep. 379. murrers. McSweeney v. Carney, 72 Ind. 430 ; McCarty v. Kinsey, 154 Ind. 447, 57 N. E. (15) Another rule, and one which is said 108; Johnson v. Knudson-Mercer Co., 167 to be the best test for determining whether Ind. 429, 79 N. E. 367.

a former judgment is a bar to a present acAppellees contend that the interests of the tion, is: Will the same identical evidence several parties in the real estate devised by support the issue tendered in both actions? the Smith will was an issue adjudicated in Freeman on Judgments (4th Ed.) § 259; the former suit. On the other hand, appel- Johnson v. Knudson-Mercer Co., supra. lant insists that no such issue was tendered [16] An examination of the pleadings in by either of the parties to that suit, and the former case will disclose a controversy therefore the judgment, in so far as it per involving the construction of certain items tains to the real estate, was coram non judice of the Smith will pertaining to the disposiand void. These contentions submit the tion of personal property only. These items question: Was the point at issue in the case in no manner affected the interest or title of at bar adjudicated in the former suit? This the devisees to real estate. The real point question is said to be one of fact. McSween-in issue was the adjustment of the rights of ey v. Carney, supra.

the several parties in the personal estate [12] A judgment, if rendered on the merits which, in the end, amounted to a direction to in a court of competent jurisdiction, will con- the executor in the discharge of his duties stitute a bar to a subsequent action between in the settlement of his trust. The issue for


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trial being thus fixed, it follows that evi-, tained his interest in the real estate in quesdence alone relative to such issue was ortion by purchase, one of the two modeswould have been admitted.

"purchase" and "descent"-recognized by In the instant case, appellant, a life ten- law for the acquiring of estates. His interant in possession of certain specifically de est, as we have said, was not only alienable, scribed real estate, is claiming to be the but descendable under our laws of descent. fee owner thereof or of the fee in remainder, The life tenant at the time the “consent not by virtue of the Smith will, but from an- judgment” was rendered had no interest other under our laws of descent. That was whatever in the fee, and any agreement she the issue alone tendered to the present ap- might make with reference to the same, withpellees. Answer, former adjudication, that out the fee owner's consent, would be inef. is to say, the thing, right, or demand in the fectual as against him for any purpose. present action, is the same dispute or con [19] As we have seen, this judgment was troversy determined by the decision in the the culmination of a controversy as to the former suit. Or, in other words, the sub- particular personal property bequeathed to ject-matter involved was the same in both each beneficiary by the Smith will. It was actions. It will not do to say that because merely a judicial approval of an agreement the value of the property now in question between the parties capable of contracting. may have either directly or remotely affect- This agreement, aside from a division of the ed the former result, the interest or title to testator's personal property specifically itemsuch property said to be after acquired was ized, embodied each item of the Smith will in question or determined thereby. It is devising real estate, without material change, clear that the subject matter is not the same, comment, or declaration evidencing an innor does it appear that the same evidence tention that the language of this will should would support the issues tendered in both receive a construction other than that to actions. From these conclusions it follows which it was entitled under the law. It conthat the evidence submitted in the instant tains no words or stipulations from which case is insufficient to support the defense of it can be said that appellant or any of the former adjudication. Hence, in the absence other parties thereto had in mind the sale, of other considerations, the interests of the transfer, or waiver of any interest or esseveral devisees in the real estate were not pectancy of appellant as an heir of her son, determined in the former action. Williams nor an intent to cut off her right to receive, v. Harrison, 72 Ind. App. 245, 123 N. E. 245. in the future, through either of the modes

[17] Lastly, directing our attention to the prescribed by law, any other interest than "consent judgment” pleaded by appellees as that given to her by item 5. It was not a an estoppel in this action, it is enough to say case where an ancestor was considering the that this court has many times ruled that it rights and interests of those who were the is not essential to the validity of a “consent natural objects of his bounty, nor was the judgment" that it be confined to the issues agreement, in many respects, within the rule presented by the case in which it is rendered. announced in Eissler v. Hoppel, 158 Ind. 82, Fletcher v. Holmes, 25 Ind. 458, 463; Indi- 62 N. E. 692, wherein the court upheld an ana, Bloomington, etc., Ry. Co. v. Bird, 116 agreement between heirs for the distribution Ind. 217, 18 N. E. 837, 9 Am. St. Rep. 842;/ of patrimony; nor was the agreement within Hutts v. Martin, 134 Ind. 587, 33 N. E. 676; | the rule announced by any decision to our Lemmon v. Osborn, 153 Ind. 172, 54 N. E. knowledge sustaining the sale or transfer by 1058.

an heir of his expectant interest in his an[18] However, such judgment, in so far as cestor's estate. So that, as it seems to us, it purports to adjudicate matters not within the force and effect of this judgment must the issues of the cause in which it is entered, be likened unto an ordinary quitclaim deed is only binding on the parties thereto cap- containing no conventional assertions intendable of contracting. At the time the “con- ing to fix the extent of future responsibility. sent judgment" here was rendered, Simeon Elliott v. Frakes, 71 Ind. 412; Haskett v. Pankey was alive and a minor. His disabil- Maxey, 134 Ind. 182, 189, 33 N. E. 358, 19 ity was such that neither he nor his guard- L. R. A. 379; Graham v. Graham, 55 Ind. ian ad litem could prejudice his interest by 23; Bryan v. Uland, 101 Ind. 477, 1 N. E. consenting to a judgment upon a perfunc- 52; Donaldson v. Hibner, 55 Mo. 492. tory hearing, or by admissions or stipula

[20] The “consent judgment" is valid, and. tions surrender any of his substantial rights. as to all matters covered by the stipulations Crain v. Parker, 1 Ind. 374; McEndree v. therein, it will serve as an estoppel against McEndree, 12 Ind. 97; Richards v. Richards, any future controversy between the same 17 Ind. 636, 638; Missouri Pacific R. Co. v. parties. But, in the absence of anything to Lasca, 79 Kan. 311, 99 P. 616, 21 L. R. A. the contrary, we do not understand that the (N. S.) 338, 17 Ann. Cas. 605; Kingsbury v. general rule of estoppel by judgment affects Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. other than existing titles. It is said in Er. Ed. 1047; Daingerfield v. Smith, 83 Va. 81, 1 win v. Garner, 108 Ind. 488, 9 N. E. 417: S. E. 599; Tennessee Coal, etc., Co. v. Hayes, "The general rule is that an estoppel by 97 Ala. 201, 12 So. 98. Simeon Pankey ob- judgment affects existing titles, and not those

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(146 N. E.) subsequently acquired. Bryan v. Vland, supra; ment was rendered, and at a time when there * Avery v. Akins, 74 Ind. 283."

was no right to an appeal from that judg.

ment. The foregoing opinion indicates the va

On authority of Talge Mahogany Co. v. rious issues tendered in the instant case. There was a general finding by the trial Astoria Mahogany Co. (Ind. Sup. No. 24404) court in favor of appellees. If it may be in- 141 N. E. 50, 145 N. E. 495, motion to dismiss ferred that the trial court found in favor of is sustained, and appeal dismissed. appellees on one or more of the issues in this case tendered, then, as a recapitulation, we hold that the trial court's finding is un

MORGAN v. STATE ex rel. KIRTLEY. supported by the evidence, and hence contrary to law, in that: (1) It erroneously con

(No. 12049.) strued the will of Henry G. Smith; (2) it (Appellate Court of Indiana, Division No. 1. erroneously found that the issue in the in

Feb. 19, 1925.) stant case was presented, tried, and deter

1. Criminal law On 163Accused's motion in mined in the former action; (3) it erroneous

bastardy case to dismiss, and to vacate and ly found that appellant was estopped by the

set aside judgment, held properly overruled. "consent judgment." Therefore, in any event

Accused's motion in bastardy case to disthe judgment below must be reversed.

miss, and to vacate and set aside judgment Judgment reversed, with instructions to on the ground that he had previously been tried the trial court to sustain appellant's motion on a charge of rape upon relatrix and was acfor a new trial, and for further proceedings quitted, held properly overruled, in view of not inconsistent with this opinion.

fact that rape is distinct from bastardy case, which is a special civil action governed by the civil practice.

2. Judges Om51(2)-Overruling verified motion AMERICAN CREOSOTING CO. V. RED.

for change of special judge held proper. DINGTON. (No. 11409.)

here special judge was agreed upon to

try bastardy case pursuant to Burns' Ann, St. (Appellate Court of Indiana, Division No. 2. 1914, § 427, overruling verified motion for Feb. 18, 1925.)

change of judge, made the following day, held Judgment am335(1)-Action to review judg- proper, in absence of showing in affidavit that

ment not maintainable where appeal cannot accused did not know of any bias or prejudice be taken,

of the judge at the time of his selection to try

the case. An action to review a judgment cannot be maintained when there was no right to an ap- Appeal from Circuit Court, Gibson County; peal from that judgment because of lapse of John Q. A. Goodman, Judge. time.

Bastardy proceedings by the State, on the Appeal from Circuit Court, Decatur Coun- relation of Erma Kirtley, against Gentle ty; John W. Craig, Judge.

Grant Morgan. From an adverse judgment, Action by the American Creosoting Com

defendant appeals. Affirmed.
pany against William Reddington to review McGary & Kays and Hovey C. Kirk, all of
a judgment. Judgment for defendant, and Princeton, for appellant.
plaintiff appeals. Appeal dismissed.

Oscar Lanphar and George L. Bridenhag-
Superseding former opinion, 141 N. E. 523. er, both of Princeton, for appellee.
Goddard & Hite, of Greensburg, and Wat-

THOMPSON, J. This action was begun by son & Esarey, of Indianapolis, for appellant.

Chas. L. Tindall, of Greenfield, Donald L. (the state on relation of one Erma Kirtley,
Smith, and John H. Kiplinger, both of Rush- wherein she alleged that she was pregnant
ville, Ed. K. Adams, of Shelbyville, and with a bastard child and that Gentle Grant
Thomas E. Davidson, of Greensburg, for ap- said child. There was a trial in which the

Morgan, appellant herein, was the father of pellee.

relatrix was adjudged pregnant and the apMCMAHAN, J. On February 16, 1915, ap- pellant herein was found to be the father of pellant filed its complaint to review a judg- her bastard child. ment rendered against it and in favor of ap

On the 16th day of March, 1924, the depellee March 21, 1914; a motion for a new fendant, the appellant herein, filed a motion trial having been overruled prior to the ren

to dismiss the action for the reasons therein dition of the judgment.

stated, which motion was orerruled by the From a judgment denying the review, ap court. On the 20 day of April, 1924, the folpellant appeals. Appellee has filed a motion lowing further proceedings in said cause took to dismiss this appeal for the reason that place, to wit: appellant's complaint to review was filed “Comes now the prosecuting attorney on bemore than 180 days after the original judg. i half of the state and comes the defendant by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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counsel McGary & Kays and Hovey C. Kirk, , of criminal conduct were charged in the inand Robert C. Baltzell, regular judge of said dictment against him for rape which were court informs the prosecuting attorney and charged against him in the complaint for counsel for defendant that he is disqualified bastardy. The court overruled the motion from sitting as judge on the trial of said cause,

to dismiss the case. and now comes also the defendant by his counsel McGary & Kays and Hovey C. Kirk, and

[1] The defendant then filed a motion for said parties agree in open court that John Q. A. a new trial, for the following reasons: First, Goodman, a member of the bar and qualified the court erred in overruling the defendant's to serve as judge of the Gibson circuit court, is motion to dismiss said cause of action. Secnow agreed upon as special judge to try said ond, the court erred in overruling the de

It is therefore considered and ordered fendant's verified motion for a change from by the court that John Q. A. Goodman be and the judge in this case. Third, the court erred he is hereby appointed as special judge to try in overruling the defendant's motion to rasaid cause."

cate and set aside the judgment in this case. The following further order was entered The court overruled the motion for a new on the order book in said cause on the 2d trial, and the above-alleged errors are the erday of April, 1924:

rors complained of. The first and second “The regular judge being disqualified declines causes present no grounds for a new trial, to try said cause and now by agreement of the but are proper independent assignments of parties, John Q. A. Goodman, an attorney of error. The court was right in overruling the this bar, in good standing and eligible to the motion to dismiss the case, and the court was office of the judge of the circuit court, Gibson clearly right in overruling the motion to vacounty, Indiana, to try said cause, this the 2d cate and set aside the judgment, for the readay of April, 1924."

son that the criminal case was distinct and The record thereupon shows that John Q. separate from the bastardy case; the basA. Goodman was sworn to try and deter- tardy case being a special civil action and mine said cause, which oath was entered up governed by the civil practice; the other on the records of said proceedings in said i case being governed by the criminal practice

The case was set for trial on the 3d and the rules of evidence governing such day of April, 1924, and on that day the fol- cases. lowing proceedings were shown as part of the [2] The counsel for defendant contends records in said case:

very earnestly that the court erred in refus. “This cause coming on for trial before John ing to grant a change of judge. However, Q. A. Goodman, special judge in said cause, and after a careful examination of the case, comes the state of Indiana, on relation of of the authorities cited, and many others Erma Kirtley, and comes also the defendant in referred to, we have come to the concluperson and by counsel, McGary & Kays and sion that the court did not err in refusing Hovey C. Kirk, and before the beginning of the to grant the change. The record shows that trial of said cause the defendant filed his affidavit herein for a change of venue from this case was before the regular judge of said said special judge, Jobo Q. A. Goodman."

court, and that for the reasons stated the

regular judge was disqualified to sit in said That said defendant then filed an affidavit case and so notified the parties and the attorasking for a change from John Q. A. Good- neys, all of whom were present in court on man, special judge, on the grounds of bias the 2d day of April, 1924, and a special judge and prejudice of said judge as stated in the was then agreed upon by the parties. Secaffidavit. The motion for a change of judge tion 427, Burns' 1914, provides: was overruled, to which the defendant ex

"In any case where the presiding judge is cepted. The case was then tried before said disqualified from any cause to try such cause, John Q. A. Goodman, special judge, without if the parties in such action shall agree, in the intervention of a jury, and the result of open court, upon some judge or member of the said trial was a finding for the plaintiff — bar of any court in this state to try such cause, that she was pregnant with a bastard child, it shall be the duty of the court to appoint

such judge or attorney, so agreed upon, to and that the defendant, appellant herein,

try such cause." Gentle Grant Morgan, was the father of said child, and judgment was rendered, accord On the following day, April 3, 1924, when ingly, that he pay to the state of Indiana the the case was called for trial, the affidavit for sum of $550 for the support of the child. change of judge was filed, which affidarit

The defendant then filed a motion to va was in the usual form. There are numer. cate the judgment in said case for the rea ous authorities in this state to the effect that son that prior thereto the defendant had if there is any objection to be made to a been charged with the crime of rape upon the special judge who is called to try a case, the relatrix, a female child under the age of 16 objection must be made at once, and, if not, years, to wit, 14 years of age, and that he all objections are waived. This objection was was tried in the Gibson circuit court before not filed until the day after the defendant a jury, and defendant was found not guilty. had agreed with the relatrix and the attorHe alleged in his motion that the same acts neys for the state that the special judge

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(146 N.E.) should sit in said case and try it, and thereby obstruction of water course, testimony of was no showing in the affidavit that appel- employés held to sufficiently disclose their emlant herein did not know of any bias or prej. ployment by defendants, and that defendants udice of the judge at the time of his selection were chargeable with their acts, notwithstandto try the case.

ing, in naming their employer, they used the In Bixby v. Carskaddon et al., 63 Iowa, the larger system.

name which now designates another part of 164, 18 N. W. 875, the court says:

4. Railroads om 108—Statutory duty to keep "The stipulation was that the action should

natural water course open.
be tried in the Linn circuit court; and it will
be conceded that, as between the then parties,

Railroad maintaining structure in channel the stipulation should have full force and ef- of natural water course has absolute duty in , fect. But clearly, we think, the persons who construction and maintenance thereof to prowere afterwards substituted as defendants are

vide sufficient opening for passage of all water, not bound by the stipulation as to the place driftwood, and other material that may be reaof trial."

sonably expected, particularly in view of Burns'

Ann. St. 1914, $ 7683.
In Pottlitzer v. Citizens' Trust Co., 60 Ind.
App. page 59, 108 N. E. 36, 41, the court says: ty; James M. Leathers, Judge.

Appeal from Superior Court, Marion Coun.
"The record then sets out the oath of such
special judge and shows that he assumed ju- Action by Carrie B. Watson against the
risdiction of the cause. It thus affirmatively Pennsylvania Railroad Company and anoth-
appears from the record that such special judge er. Judgment for plaintiff, and defendants
obtained jurisdiction of said cause in the man appeal. Affirmed.
ner provided by section 427, Burns' 1914;
Acts 1907, p. 108. It is a general rule that Pickens, Moores, Davidson & Pickens, of
objection to the appointment of a special judge Indianapolis, for appellants.
must be made at the time of the appointment George W. Galvin, of Indianapolis, for ap-
or when he assumes jurisdiction, otherwise

'all objections to the regularity of the appoint-
ment shall be deemed waived.'"

NICHOLS, J. Action by appellee against
See authorities cited in above cases.

appellants to recover damages for injury and Finding no error in the record, the judg. destruction of certain items of personal ment is affirmed.

property which were situated on appellee's premises, by flood waters overflowing the banks of Big Eagle creek in March and April, 1922. There was a trial by jury which resulted in a verdict for $500 against both

defendants, on which, after appellant's moPENNSYLVANIA R. Co. et al. v. WATSON. tion for a new trial was overruled, judg. (No. 11985.)

ment was rendered. The only error assign(Appellate Court of Indiana, Division No. 2. ed is the action of the court in overruling Feb. 20, 1925.)

the motion for a new trial, the reasons for

which motion presenting the insufficiency of 1. Railroads Om 114(2)–Evidence held to sus- the evidence, that the verdict is contrary to

tain Judgment for damages from obstruction law, and error in giving certain instructions
of waterway.

hereinafter considered.
Evidence held to sustain judgment against
railroad for damages from obstruction of wa-

It appears by the evidence that appellee terway causing overflow on plaintiff's property. owned certain real estate in the valley of

Big Eagle creek, and near the banks thereof, 2. Rallroads Om 129(4)-Railroad liable for ob- on which she had some buildings and perstruction of waterway by acts of predecos- sonal property. Appellants' railroad crossed

the creek and its valley a short distance beSince railroad's duty under Act in force May low appellee's property. It had been so lo6, 1853, § 13, cl. 5 (Rev. St. 1852, p. 413), and cated for many years, long before appellee Burns' Ann. St. 1914, $ 7683, to keep waterways crossed by their lines free from obstruc- located in the valley, and before there was tion is a continuing one, and each day's con

any settlement in the valley as a place of tinuance of obstruction a new violation, rail- residence. Appellants' negligence as chargroad may not avoid liability to adjacent own- ed, and of which there was some evidence, er on ground that negligent acts charged were consisted in the manner in which they mainacts of its predecessor.

tained the bridge, trestle, and embankment 3. Railroads al 14(2) - Testimony of em

on which the road was operated, preventing ployés of railway system held not to warrant the flood waters of the stream which overfinding of responsibility for obstructing wa- flowed its banks from properly passing off

the valley, and thereby flooding and damagIn action against two railroad organizations ing appellee's property. composing part of larger system, for injuries In presenting the insufficiency of the evi

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