trial being thus fixed, it follows that evidence alone relative to such issue was or would have been admitted. In the instant case, appellant, a life tenant in possession of certain specifically described real estate, is claiming to be the fee owner thereof or of the fee in remainder, not by virtue of the Smith will, but from another under our laws of descent. That was the issue alone tendered to the present appellees. Answer, former adjudication, that is to say, the thing, right, or demand in the present action, is the same dispute or controversy determined by the decision in the former suit. Or, in other words, the subject-matter involved was the same in both actions. It will not do to say that because the value of the property now in question may have either directly or remotely affected the former result, the interest or title to such property said to be after acquired was in question or determined thereby. It is clear that the subject-matter is not the same, nor does it appear that the same evidence would support the issues tendered in both actions. From these conclusions it follows that the evidence submitted in the instant case is insufficient to support the defense of former adjudication. Hence, in the absence of other considerations, the interests of the several devisees in the real estate were not determined in the former action. Williams v. Harrison, 72 Ind. App. 245, 123 N. E. 245. [17] Lastly, directing our attention to the "consent judgment" pleaded by appellees as an estoppel in this action, it is enough to say that this court has many times ruled that it is not essential to the validity of a "consent judgment" that it be confined to the issues presented by the case in which it is rendered. Fletcher v. Holmes, 25 Ind. 458, 463; Indiana, Bloomington, etc., Ry. Co. v. Bird, 116 Ind. 217, 18 N. E. 837, 9 Am. St. Rep. 842; Hutts v. Martin, 134 Ind. 587, 33 N. E. 676; Lemmon v. Osborn, 153 Ind. 172, 54 N. E. 1058. [18] However, such judgment, in so far as it purports to adjudicate matters not within the issues of the cause in which it is entered, is only binding on the parties thereto capable of contracting. At the time the "consent judgment" here was rendered, Simeon Pankey was alive and a minor. His disability was such that neither he nor his guardian ad litem could prejudice his interest by consenting to a judgment upon a perfunctory hearing, or by admissions or stipulations surrender any of his substantial rights. Crain v. Parker, 1 Ind. 374; McEndree v. McEndree, 12 Ind. 97; Richards v. Richards, 17 Ind. 636, 638; Missouri Pacific R. Co. v. Lasca, 79 Kan. 311, 99 P. 616, 21 L. R. A. (N. S.) 338, 17 Ann. Cas. 605; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Daingerfield v. Smith, 83 Va. 81, 1 S. E. 599: Tennessee Coal, etc., Co. v. Hayes, tained his interest in the real estate in question by purchase, one of the two modes"purchase" and "descent"-recognized by law for the acquiring of estates. His interest, as we have said, was not only alienable, but descendable under our laws of descent. The life tenant at the time the "consent judgment" was rendered had no interest whatever in the fee, and any agreement she might make with reference to the same, without the fee owner's consent, would be ineffectual as against him for any purpose. [19] As we have seen, this judgment was the culmination of a controversy as to the particular personal property bequeathed to each beneficiary by the Smith will. It was merely a judicial approval of an agreement between the parties capable of contracting. This agreement, aside from a division of the testator's personal property specifically itemized, embodied each item of the Smith will devising real estate, without material change, comment, or declaration evidencing an intention that the language of this will should receive a construction other than that to which it was entitled under the law. It contains no words or stipulations from which it can be said that appellant or any of the other parties thereto had in mind the sale, transfer, or waiver of any interest or expectancy of appellant as an heir of her son, nor an intent to cut off her right to receive, in the future, through either of the modes prescribed by law, any other interest than that given to her by item 5. It was not a case where an ancestor was considering the rights and interests of those who were the natural objects of his bounty, nor was the agreement, in many respects, within the rule announced in Eissler v. Hoppel, 158 Ind. 82, 62 N. E. 692, wherein the court upheld an agreement between heirs for the distribution of patrimony; nor was the agreement within the rule announced by any decision to our knowledge sustaining the sale or transfer by an heir of his expectant interest in his ancestor's estate. So that, as it seems to us, the force and effect of this judgment must be likened unto an ordinary quitclaim deed containing no conventional assertions intending to fix the extent of future responsibility. Elliott v. Frakes, 71 Ind. 412; Haskett v. Maxey, 134 Ind. 182, 189, 33 N. E. 358, 19 L. R. A. 379; Graham v. Graham, 55 Ind. 23; Bryan v. Uland, 101 Ind. 477, 1 N. E. 52; Donaldson v. Hibner, 55 Mo. 492. [20] The "consent judgment" is valid, and. as to all matters covered by the stipulations therein, it will serve as an estoppel against any future controversy between the same parties. But, in the absence of anything to the contrary, we do not understand that the general rule of estoppel by judgment affects other than existing titles. It is said in Erwin v. Garner, 108 Ind. 488, 9 N. E. 417: "The general rule is that an estoppel by (146 N.E.) subsequently acquired. Bryan v. Uland, supra; | ment was rendered, and at a time when there ** Avery v. Akins, 74 Ind. 283." was no right to an appeal from that judgment. The foregoing opinion indicates the various issues tendered in the instant case. On authority of Talge Mahogany Co. v. Astoria Mahogany Co. (Ind. Sup. No. 24404) 141 N. E. 50, 145 N. E. 495, motion to dismiss is sustained, and appeal dismissed. MORGAN v. STATE ex rel. KIRTLEY. (No. 12049.) There was a general finding by the trial court in favor of appellees. If it may be inferred that the trial court found in favor of 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 unsupported by the evidence, and hence contrary to law, in that: (1) It erroneously construed the will of Henry G. Smith; (2) it (Appellate Court of Indiana. Division No. 1. erroneously found that the issue in the instant case was presented, tried, and determined in the former action; (3) it erroneously found that appellant was estopped by the "consent judgment." Therefore, in any event the judgment below must be reversed. Judgment reversed, with instructions to the trial court to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. Feb. 19, 1925.) 1. Criminal law 163-Accused's motion in bastardy case to dismiss, and to vacate and set aside judgment, held properly overruled. Accused's motion in bastardy case to dismiss, and to vacate and set aside judgment on the ground that he had previously been tried on a charge of rape upon relatrix and was acquitted, held properly overruled, in view of fact that rape is distinct from bastardy case, which is a special civil action governed by the civil practice. 2. Judges 51(2)—Overruling verified motion for change of special judge held proper. Where special judge was agreed upon to try bastardy case pursuant to Burns' Ann. St. 1914, § 427, overruling verified motion for change of judge, made the following day, held proper, in absence of showing in affidavit that accused did not know of any bias or prejudice of the judge at the time of his selection to try the case. Appeal from Circuit Court, Gibson County; John Q. A. Goodman, Judge. Bastardy proceedings by the State, on the Appeal from Circuit Court, Decatur Coun- relation of Erma Kirtley, against Gentle ty; John W. Craig, Judge. Action by the American Creosoting Company against William Reddington to review a judgment. Judgment for defendant, and plaintiff appeals. Appeal dismissed. Superseding former opinion, 141 N. E. 523. Goddard & Hite, of Greensburg, and Watson & Esarey, of Indianapolis, for appellant. Chas. L. Tindall, of Greenfield, Donald L. Smith, and John H. Kiplinger, both of Rushville, Ed. K. Adams, of Shelbyville, and Thomas E. Davidson, of Greensburg, for appellee. MCMAHAN, J. On February 16, 1915, appellant filed its complaint to review a judgment rendered against it and in favor of appellee March 21, 1914; a motion for a new trial having been overruled prior to the rendition of the judgment. From a judgment denying the review, appellant appeals. Appellee has filed a motion to dismiss this appeal for the reason that appellant's complaint to review was filed more than 180 days after the original judg Grant Morgan. From an adverse judgment, defendant appeals. Affirmed. McGary & Kays and Hovey C. Kirk, all of Princeton, for appellant. Oscar Lanphar and George L. Bridenhager, both of Princeton, for appellee. THOMPSON, J. This action was begun by the state on relation of one Erma Kirtley, wherein she alleged that she was pregnant with a bastard child and that Gentle Grant Morgan, appellant herein, was the father of said child. There was a trial in which the relatrix was adjudged pregnant and the appellant herein was found to be the father of her bastard child. On the 16th day of March, 1924, the defendant, the appellant herein, filed a motion to dismiss the action for the reasons therein stated, which motion was overruled by the court. On the 2d day of April, 1924, the following further proceedings in said cause took place, to wit: "Comes now the prosecuting attorney on behalf of the state and comes the defendant by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes counsel McGary & Kays and Hovey C. Kirk, and Robert C. Baltzell, regular judge of said court informs the prosecuting attorney and counsel for defendant that he is disqualified from sitting as judge on the trial of said cause, and now comes also the defendant by his counsel McGary & Kays and Hovey C. Kirk, and said parties agree in open court that John Q. A. Goodman, a member of the bar and qualified to serve as judge of the Gibson circuit court, is now agreed upon as special judge to try said It is therefore considered and ordered by the court that John Q. A. Goodman be and he is hereby appointed as special judge to try cause. said cause." The following further order was entered on the order book in said cause on the 2d day of April, 1924: "The regular judge being disqualified declines to try said cause and now by agreement of the parties, John Q. A. Goodman, an attorney of this bar, in good standing and eligible to the office of the judge of the circuit court, Gibson county, Indiana, to try said cause, this the 2d day of April, 1924." The record thereupon shows that John Q. A. Goodman was sworn to try and determine said cause, which oath was entered up on the records of said proceedings in said | cause. The case was set for trial on the 3d day of April, 1924, and on that day the following proceedings were shown as part of the records in said case: "This cause coming on for trial before John Q. A. Goodman, special judge in said cause, and comes the state of Indiana, on relation of Erma Kirtley, and comes also the defendant in person and by counsel, McGary & Kays and Hovey C. Kirk, and before the beginning of the affidavit herein for a change of venue from said special judge, John Q. A. Goodman." trial of said cause the defendant filed his That said defendant then filed an affidavit asking for a change from John Q. A. Goodman, special judge, on the grounds of bias and prejudice of said judge as stated in the affidavit. The motion for a change of judge was overruled, to which the defendant excepted. The case was then tried before said John Q. A. Goodman, special judge, without the intervention of a jury, and the result of said trial was a finding for the plaintiff that she was pregnant with a bastard child, and that the defendant, appellant herein, Gentle Grant Morgan, was the father of said child, and judgment was rendered, accordingly, that he pay to the state of Indiana the sum of $550 for the support of the child. of criminal conduct were charged in the indictment against him for rape which were charged against him in the complaint for bastardy. The court overruled the motion to dismiss the case. [1] The defendant then filed a motion for a new trial, for the following reasons: First, the court erred in overruling the defendant's motion to dismiss said cause of action. Second, the court erred in overruling the defendant's verified motion for a change from the judge in this case. Third, the court erred in overruling the defendant's motion to vacate and set aside the judgment in this case. The court overruled the motion for a new trial, and the above-alleged errors are the errors complained of. The first and second causes present no grounds for a new trial, but are proper independent assignments of error. The court was right in overruling the motion to dismiss the case, and the court was clearly right in overruling the motion to vacate and set aside the judgment, for the rea son that the criminal case was distinct and separate from the bastardy case; the bastardy case being a special civil action and governed by the civil practice; the other case being governed by the criminal practice and the rules of evidence governing such cases. [2] The counsel for defendant contends very earnestly that the court erred in refusing to grant a change of judge. However, after a careful examination of the case, of the authorities cited, and many others referred to, we have come to the conclusion that the court did not err in refusing to grant the change. The record shows that this case was before the regular judge of said court, and that for the reasons stated the regular judge was disqualified to sit in said case and so notified the parties and the attorneys, all of whom were present in court on the 2d day of April, 1924, and a special judge was then agreed upon by the parties. Section 427, Burns' 1914, provides: "In any case where the presiding judge is disqualified from any cause to try such cause, if the parties in such action shall agree, in open court, upon some judge or member of the bar of any court in this state to try such cause, it shall be the duty of the court to appoint such judge or attorney, so agreed upon, to try such cause." On the following day, April 3, 1924, when the case was called for trial, the affidavit for change of judge was filed, which affidavit was in the usual form. There are numer The defendant then filed a motion to vacate the judgment in said case for the rea-ous authorities in this state to the effect that son that prior thereto the defendant had been charged with the crime of rape upon the relatrix, a female child under the age of 16 years, to wit, 14 years of age, and that he was tried in the Gibson circuit court before a jury, and defendant was found not guilty. if there is any objection to be made to a special judge who is called to try a case, the objection must be made at once, and, if not, all objections are waived. This objection was not filed until the day after the defendant had agreed with the relatrix and the attor (146 N.E.) should sit in said case and try it, and there | by 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 to try the case. were chargeable with their acts, notwithstanding, in naming their employer, they used the name which now designates another part of In Bixby v. Carskaddon et al., 63 Iowa, the larger system. 164, 18 N. W. 875, the court says: "The stipulation was that the action should be tried in the Linn circuit court; and it will be conceded that, as between the then parties, the stipulation should have full force and effect. But clearly, we think, the persons who were afterwards substituted as defendants are not bound by the stipulation as to the place of trial." In Pottlitzer v. Citizens' Trust Co., 60 Ind. App. page 59, 108 N. E. 36, 41, the court says: "The record then sets out the oath of such special judge and shows that he assumed ju 4. Railroads 108-Statutory duty to keep natural water course open. Railroad maintaining structure in channel of natural water course has absolute duty in, construction and maintenance thereof to provide sufficient opening for passage of all water, sonably expected, particularly in view of Burns' driftwood, and other material that may be reaAnn. St. 1914, § 7683. ty; James M. Leathers, Judge. Action by Carrie B. Watson against the risdiction of the cause. It thus affirmatively Pennsylvania Railroad Company and anothappears 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 objection to the appointment of a special judge must be made at the time of the appointment or when he assumes jurisdiction, otherwise 'all objections to the regularity of the appointment shall be deemed waived.' See authorities cited in above cases. Finding no error in the record, the judgment is affirmed. Pickens, Moores, Davidson & Pickens, of NICHOLS, J. Action by appellee against appellants to recover damages for injury and destruction of certain items of personal 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 mo PENNSYLVANIA 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.) 1. Railroads 114(2)-Evidence held to sustain judgment for damages from obstruction of waterway. Evidence held to sustain judgment against railroad for damages from obstruction of wa the motion for a new trial, the reasons for which motion presenting the insufficiency of the evidence, that the verdict is contrary to law, and error in giving certain instructions hereinafter considered. 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. Railroads 129(4)—Railroad liable forꞌ ob- on which she had some buildings and perstruction of waterway by acts of predeces-sonal property. Appellants' railroad crossed sor. Since railroad's duty under Act in force May 6, 1853, § 13, cl. 5 (Rev. St. 1852, p. 413), and Burns' Ann. St. 1914, § 7683, to keep waterways crossed by their lines free from obstruction is a continuing one, and each day's continuance of obstruction a new violation, railroad may not avoid liability to adjacent owner on ground that negligent acts charged were acts of its predecessor. 3. Railroads 114(2) - Testimony of employés of railway system held not to warrant finding of responsibility for obstructing waters. the creek and its valley a short distance below appellee's property. It had been so located for many years, long before appellee located in the valley, and before there was any settlement in the valley as a place of residence. Appellants' negligence as charged, and of which there was some evidence, consisted in the manner in which they maintained the bridge, trestle, and embankment on which the road was operated, preventing the flood waters of the stream which overflowed its banks from properly passing off the valley, and thereby flooding and damaging appellee's property. In action against two railroad organizations composing part of larger system, for injuries. In presenting the insufficiency of the eviFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dence to sustain the verdict, appellants that they were in the employ of appellant, make only the general statement that there or either of them, but that all of them testiwas a total failure of proof connecting ap-fied that they were in the employ of the pellants, or either of them, with any of the Pennsylvania Railroad Company. But we acts of negligence alleged in the complaint, and for this reason, also contends that the verdict is contrary to law. are not favorably impressed with such contention. If we are rightly informed, by a recent reorganization of the Pennsylvania system, the lines east of Pittsburgh are known as the Pennsylvania Railroad Com [1] There was evidence that the bridge and approaches thereto were supported by trestles and piling, which were so construct-pany. It is probable that the jury did not ed as to provide a dam for drift; that many carloads of stone were dumped between the trestles of the approach; that many piles were driven between the trestles of the approach to the bridge; that old trestles and piles had been sawed off leaving the stubs sticking up so as to catch the drift; that these obstructions hindered the flow of the water, and caused it to pile up against the embankment and the drift so that it was much higher on the upper than the lower side of the bridge, and thereby overflowed appellee's land; that conditions were such that in times of high water a force of men were kept there in an effort to keep the drift moving. Such evidence was certainly sufficient to justify the jury in its finding that there was negligence which occasioned the damage complained of. [2] By clause 5, section 13, of the Act in force May 6, 1853, I. R. S. p. 409, railroads were given the right to construct their roads across any stream of water, or watercourse, so as not to interfere with the free use of the same, but such statute also imposed the duty to restore the stream to its former state, or in sufficient manner not unnecessarily impair its usefulness. By this act, and by section 7683, Burns' R. S. 1914, this right and duty has continued to this date. That the obligation not to obstruct a stream so crossed is a continuous one, and that it rests equally upon a purchasing company, see Graham v. Chicago, etc., R. Co., 39 Ind. App. 294, 77 N. E. 57, 1055, where it is held that each day of the continuance of the obstruction is a fresh violation of the statute. In the light of this authority, and the cases there cited, appellants' argument that it is not liable because the acts of negligence charged were the acts of its predecessor, must fail. [3] But appellants say that while certain witnesses testified to the conditions of the bridge, trestle, and embankment, and we may add, their connection therewith, appellee's argument that from such facts the jury could properly draw the inference that appellants authorized, directed or permitted the wrong ful acts complained of, must fail for the reason that none of these witnesses testified understand that the company operating east of Pittsburgh had sent its employés to work on the bridge and its approaches over Eagle creek, near Indianapolis. It is more proba ble, and the jury might reasonably infer that these men, however indiscriminately they might have used the names of the dif ferent organizations of the Pennsylvania System, were working for the companies who were operating the railroad over the bridge at Eagle creek, and that such companies, these appellants, were chargeable with their acts while so employed. But the jury was not confined to inference to determine by whom these witnesses were employed. It is frequently disclosed in the course of their testimony that they were working for the companies which operated the railroad that crossed Eagle creek and valley. Appellants complain of instruction 5, giv. en by the court on its own motion, because, as appellants say, it limits appellee's contributory negligence to the time of the alleged injury, but we do not see this limitation in it. It should be considered along with other instructions, and when so considered it was not erroneous. [4] Appellants complain of instruction 8, given by the court on its own motion, because it states that one who maintains a structure in the channel of a natural water course is bound in the construction and maintenance thereof to make and provide sufficient opening in such structure for the passage down the water course of all water, driftwood, and other material that may be reasonably expected to come down such stream at the point in question. They also complain of instruction 9 for the reason that it states that such duty is absolute. But these instructions are not stronger than the statute mentioned above, which makes it the duty of a railroad company, building across a stream, to restore it to its former state, or in suffi cient manner not unnecessarily to interfere with its usefulness. Instruction 7 quotes section 7683 mentioned above, and the three instructions taken together state the law as favorably to appellants as they may require. No reversible error is presented. Affirmed. |