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in our original opinion. Upon a reconsid-1 All petitions for a rehearing are denied. eration of those questions, we deem it suffi- Motion sustained to the extent indicated cient to say that we are still satisfied with above. our former conclusions.

Counsel for the "munition creditors" also assert that some contention has arisen between claimants over the distribution of the residue of fund No. 3. This notice of discord, further evidenced by the "Fletcher" motion,

seems to be caused largely by the figures in

Val Chester BERKEY et al. v. William J. SIGERFOOS, Trustee, etc. (No. 12034.)

(Appellate Court of Indiana. March 17, 1925.) Appeal from Superior Court, Elkhart County; Wm. B. Hile, Judge.

Ha an & Jay, of Elkhart, for appellants. Church & Chester, of Elkhart, for appellees.

the last paragraph of our opinion, in which we held that the creditors should be reclassified. The figures so used by us were for convenience and to identify certain claims in preference to the figures showing actual allowances made by the trial court. They were not used with any intention of changing or modifying the findings or judgment of that court as to the amount due the creditors severally. We fail to see any substantial reason for the alleged dispute, when it must be remembered that the judgment of the trial court fixing these allowances was in no manner criticized or challenged by any of the Sarah A. LILLY, Guardian of William Lilly,

parties, either individually or collectively, to this appeal. This court was concerned only in the classification of creditors with respect to priority in the payment of their claims, and not in the various amounts thus severally allowed. The findings and judgment of the court below pertaining to the allowance of claims should be followed by the receiver, except as hereafter noted, and not the figures used in our opinion for the purpose of identifying claims.

The "munition creditors" seem inclined to place a construction upon the last paragraph of our original opinion, which would give them priority of payment over general creditors. This insistence is sustainable only upon the theory that they had an equitable lien. We held otherwise. They are general creditors, and should be classified as such. So that our ruling to reclassify "the creditors at bar" amounted to an order for a reclassification of them in accordance with the opinion, which gave certain of these creditors priority in the payment of their claims based upon the several allowances so adjudicated by the trial court out of funds Nos. 2 and 3. After applying such credits, any balance remaining in favor of either of these creditors must be regarded as a general claim, and to be so considered in the pro rata distribution of the assets of the insolvent estate among the general creditors. Hence, our classification 3 corresponds to classification 5 of the court below, with the above-designated additions. For the benefit of the receiver and all others concerned, it may be well for us to call attention to the comments in our original opinion relative to the trial court's classification 3-indorsers of government notes-from which it appears that all creditors thus classified have no enforceable claim against ei

PER CURIAM. Affirmed, on authority of Stutesman v. Sigerfoos, Trustee (Ind. App.) 145 N. E. 507.

2

of Unsound Mind, v. PINNELL-DULIN LUMBER CO. (No. 12182.)

(Appellate Court of Indiana, Division No. 1. March 20, 1925.)

Appeal from Industrial Board.

Meade Vestal, of Noblesville, and Turner, Adams, Merrell & Locke, of Indianapolis, for appellant.

J. F. & N. C. Neal, of Noblesville, for appellee.

REMY, J. William Lilly was engaged as an employé of appellant in unloading bags of cement from a freight car. While in the line of his employment, he fell upon the floor of the car, where he was found by fellow employés, to whom he stated at the time that he had had "a dizzy spell" and "had fallen over." He was taken home, and that night had a stroke of paralysis. Within a year, he was declared a person of unsound mind, and appellant was appointed as his guardian. There was some evidence submitted as to his physical condition, both before and after the time he was found lying upon the floor of the freight car. Claiming that the condition of her ward was the result of an injury which arose out of and in the course of the ward's employment by appellee, appellant filed an application for compensation. From an or der of the Industrial Board denying compensation, this appeal is prosecuted. The sole question for determination is whether the physical infirmities or injuries for which compensation is asked arose out of William Lilly's employment by appellee. That was a question of fact for the Industrial Board. There is evidence to sustain the finding. See Gardiner v. Cochran Chair Co. (1922) 78 Ind. App. 94, 134 N. E. 873.

(146 N.E.)

his employment. His parents and minor SCHOOL CITY OF ANDERSON v. Katherine brothers and sisters, who survived him, filed M. LAMMERT et al. (No. 12121.) with the Industrial Board an application for compensation as dependents of the decedent.

(Appellate Court of Indiana, Division No. 1. From an order of the board denying com

March 19, 1925.)

Appeal from Industrial Board. Diven, Diven & Campbell, of Anderson, for appellant.

Chas. E. Henderson and Clarence C. Wysong, both of Indianapolis, for appellees.

ENLOE, J. From an award of compensation to appellees on account of the accidental death of the husband and father of appellees, this appeal is prosecuted, the contention of appellant being that said deceased was not an employé of appellant.

Putting the matter in its most favorable aspect as regards the contention of appellant, the question was one of fact for the Industrial Board, and upon this record we cannot disturb its finding. Affirmed.

2

Henry J. PEAVLER et al. v. FRANCISCO
MINING CO. NO. 1. (No. 12166.)
(Appellate Court of Indiana, Division No. 1.
March 10, 1925.)

Appeal from Industrial Board.

John A. Riddle, of Vincennes, for appellants.

Hays & Hays, of Sullivan, for appellee.

REMY, J. Donald Peavler, 23 years of age and unmarried, while in the employment of appellee, lost his life as a result of an accident which arose out of and in the course of

pensation, this appeal is prosecuted. The only question for determination is whether or not under the evidence the decedent's par

ents and brothers and sisters were his de

pendents, within the meaning of section 37 of the Workmen's Compensation Act (Acts 1919, p. 164; section 8020u1 Burns' Supp. 1921). The question was one of fact for the Industrial Board. There is evidence to sustain the finding. See Hoosier Veneer Co. v. Stewart (1920) 76 Ind. App. 1, 129 N. E. 246; Rasin v. Miami Coal Co. (1922 Ind. App.) 137

N. E. 529. Affirmed.

3

William L. SLINKARD v. SENTINAL
PRINTING CO. (No. 11805.)

(Appellate Court of Indiana, Division No. 1. Jan. 30, 1925.)

Appeal from Circuit Court, Sullivan County; W. F. Wood, Judge.

See, also, 142 N. E. 656.

Slinkard & Slinkard, of Bloomfield, and Charles D. Hunt, of Sullivan, for appellant. Pickens, Cox, Conder & Bain, of Indianapolis, for appellee.

REMY, J. Affirmed, on authority of Chastain v. Board, etc. (1918) 68 Ind. App. 162, 119 N. E. 1007; Roark v. Voshell (1914) 58 Ind. App. 203, 108 N. E. 18; State v. Lukins (1908) 43 Ind. App. 341, 87 N. E. 246; W. T. Rawleigh Co. v. Hughes (1919) 70 Ind. App. 127, 121 N. E. 546.

END OF CASES IN VOL. 146

INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and Prior Reporter Volume Index-Digests

ABATEMENT AND REVIVAL.

II. ANOTHER ACTION PENDING.

5 (Ohio) Suit in mandamus by taxpayer to compel mayor to pay fees into city treasury held maintainable, notwithstanding pending action at law by city solicitor against mayor to collect them.-State v. Nolte, 146 N. E. 51.

8(!) (Ind.App.) Test to determine question whether action should be abated on ground that another is pending, stated.-Heaton v. Wilson's Estate, 146 N. E. 588. .

V. DEATH OF PARTY AND REVIVAL OF ACTION.

(A) Abatement or Survival of Action. 58 (2) (III.) On death of owner, Torrens proceeding abates as to him.-City of Chicago v. Collin, 146 N. E. 741.

(B) Continuance or Revival of Action.

73 (Mass.) After abatement of action by death of defendant, plaintiff may revive it and summon executor to defend.-Finance Corporation of New England v. Parker, 146 N. E. 696. 74(1) (Mass.) Sustaining plea in abatement to citation to executor to appear and defend held proper.-Finance Corporation of New England v. Parker, 146 N. E. 696.

ACCORD AND SATISFACTION.

See Compromise and Settlement.

18 (N.Y.) Part payment under agreement for settlement of personal injury claim not accord and satisfaction.-Larscy v. T. Hogan & Sons, 146 N. E. 430.

ACTION.

See Abatement and Revival; Dismissal and Nonsuit.

II. NATURE AND FORM.

16 (III.) Title given proceeding cannot change its nature or character.-State v. Froelich, 146 N. E. 733.

22 (Ohio) Whether proceeding is in chancery or at law is determined from pleadings and issue.-Hummer v. Parsons, 146 N. E. 62.

25(4) (N.Y.) "Equitable defenses" may be set up in answer in action on legal liability.-Susquehanna S. S. Co. v. A. O. Andersen & Co., 146 N. E. 381.

III. JOINDER, SPLITTING, CONSOLIDATION, AND SEVERANCE.

50(3) (Ind.App.) Owners, depositing corn in elevator commingled with common mass, held to have unity of interest entitling them to sue Grain Co. v. Goodwin, 146 N. E. 837. jointly for its alleged conversion.-Sawers

re

50(5) (ind.App.) Court's refusal to quire election between causes of action against road contractors' sureties in successive bonds, held not error.-Massachusetts Bonding & Insurance Co. v. State, 146 N. E. 116.

60 (Ind.) Matter of docketing two or more different causes of action improperly joined within discretion of trial court.-Rich v. Fry, 146 N. E. 393.

Court's discretion not abused in refusing to separate causes of action for reformation of contract and suit on note.-Id.

ADJOINING LANDOWNERS.

19 (N.Y.) Agreement for settlement of claim not amounting to accord and satisfaction See Boundaries. invalid.-Larscy v. T. Hogan & Sons, 146 N. E. 430.

ADMINISTRATION.

22(2) (N.Y.) Action for negligence maintainable without tendering back part payment See Executors and Administrators. under ineffective agreement.-Larscy V. T. Hogan & Sons, 146 N. E. 430.

27 (Mass.) Evidence held to warrant refus- See Shipping. al of directed verdict.-Lowenstein v. Silton, 146 N. E. 779.

ACCOUNT STATED.

6(2) (N.Y.) Debtor did not assent to items by failure to object, where parties were already in litigation.-Curry v. Mackenzie, 146 N. E. 375.

ACKNOWLEDGMENT.

II. TAKING AND CERTIFICATE.

ADMIRALTY,

AGENCY.

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I. NATURE AND FORM OF REMEDY.

19 (Ohio) Acknowledgment of lease by notary public or justice of the peace, but outside county for which they were commissioned, for (Ohio) Right of appeal is statutory and lands outside county, is nullity.-Empire Gas may be given or denied.-Industrial Commission & Fuel Co. v. Coolahan, 146 N. E. 389. of Ohio v. Monroe, 146 N. E. 213. 146 N.E.-58

(913)

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.

4 (Mass.) Appeals from interlocutory decrees confirming master's report properly entered.-Selwyn v. Harris, 146 N. E. 248. 14(2) (Ohio) On trial court's misconstruc-357 (2) (Mass.) Appeal from final decree tion of directions of Court of Appeals, new held properly before court whether appeal from review is appropriate. Gohman v. City of St. interlocutory decree permitting amendment of Bernard, 146 N. E. 291. declaration was good or not.-Weinstein v. Miller, 146 N. E. 902.

III. DECISIONS REVIEWABLE.

(D) Finality of Determination.

(B) Petition or Prayer, Allowance, and Certificate or Affidavit.

66 (I.) Final judgment essential to ju-358 (N.Y.) Final judgment dismissing comrisdiction of Supreme Court on appeal.-Mur-plaint after severance from counterclaims held ray v. Hagmann, 146 N. E. 472. appealable, without permission.-American Un66 (Mass.) Bill of exception taken by ion Line v. Oriental Nav. Corporation, 146 N. plaintiff in review to rulings of court treated E. 338. as interlocutory, in absence of showing wheth

er trial proceeded to final conclusion.-Whitney X. RECORD AND PROCEEDINGS NOT IN v. Porter, 146 N. E. 771.

66 (Mass.) Appeal from interlocutory matter cannot be entered in Supreme Judicial Court, except by report of judge, until there is a final decree.-McCracken's Case, 146 N. E.

904.

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197 (3) (Mass.) Question of variance between evidence and allegations of count cannot be raised for first time in Supreme Judicial Court.-Gifford v. Eastman, 146 N. E. 773.

RECORD.

(A) Matters to be Shown by Record. 501 (1) (III.) Supreme Court does not search record to ascertain issues.-People v. Raboin, 146 N. E. 538. ~511(1), (Ind.App.) Record entry held to show bill of exceptions properly in record.— Massachusetts Bonding & Insurance Co. v. State, 146 N. E. 116.

515(2)(III.) Certificate of evidence not part of record, where not filed with clerk of court.-Williams v. De Roo, 146 N. E. 470.

(B) Scope and Contents of Record.

520(3) (11.) Affidavit supporting motion for change of venue, not preserved by certificate of evidence, held not part of record for review.-Williams v. De Roo, 146 N. E. 470.

(C) Necessity of Bill of Exceptions, Case, or Statement of Facts.

554 (2) (Ind.App.) Absence of bill of exwhere questions not involving bill are preceptions does not warrant dismissal of appeal sented.-Massachusetts Bonding & Insurance Co. v. State, 146 N. E. 116.

(E) Abstracts of Record.

197(7) (Mass.) Objection that bankruptcy was not pleaded as defense cannot first be urged on appeal.-Lowenstein v. Silton, 146 N. 586(1) (III.) Appellant must furnish abE. 779. stract fully presenting every error and exception relied on.-People v. Raboin, 146 N. E. 538.

203 (3) (Mass.) Party dissatisfied with qualifications of expert witness should object, and obtain rulings on sufficiency of his knowledge.-Olsen v. New England Fuel & Transportation Co., 146 N. E. 656.

204 (1) (Ind.App.) Errors in admission of evidence waived where no objection made or exception taken.-Mancourt v. Wissel, 146 N. E. 423.

236 (2) (Ind.) Question whether averments would withstand motion to make complaint more specific held not presented for review.-Rich v. Fry, 146 N. E. 393.

(C) Exceptions.

(G) Authentication and Certification.

612(4) (Ind.) Part of transcript in first of two volumes held sufficiently identified by clerk's certificate.-Crane v. Hensler, 146 N. E. 577.

(K) Questions Presented for Review.

671 (3) (Ind.App.) Questions depending on evidence not considered in absence of evidence. -Maxwell Implement Co. v. Fitzgerald, 146 N. E. 883.

694(1) (Mass.) Consistent findings of mas262 (2) (Mass.) Assignment of error as to conclusive.-Strachan v. Beacon Oil Co., 146 N. ter on conflicting evidence, not reported, are procedure not reviewed, where no exception E. 787. taken thereto.-Buono v. Cody, 146 N. E. 703.701 (1) (Ohio) In absence of evidence, 274(4) (Mass.) Plaintiff's exception to al- charge that, if plaintiff's failure to use ordinary care contributed to injury, she could not reCleveland Ry. Co., 146 N. E. 805. cover, held not prejudicial error.-Bradley v.

lowance of motion to enter verdict for defendant presents question whether evidence supported verdict for plaintiff.-Buono v. Cody, 146 N. E. 703.

577.

274(5) (Ohio) General exception to charge, 702 (2) (Ind.) All instructions held embrac part of which is correct, does not bring up for ed in record.-Crane v. Hensler, 146 N. E. review failure to charge on burden of proof.-705 (Mass.) Where evidence not reported, Bradley v. Cleveland Ry. Co., 146 N. E. 805. claim of right to substantial damages cannot be sustained.-Jarvis v. De Peza, 146 N. E. 662.

(D) Motions for New Trial.

XI. ASSIGNMENT OF ERRORS.

297 (Ohio) No motion for new trial being filed in Court of Appeals nor agreed statement 733 (Ind.App.) Error not assignable on or finding of fact, Supreme Court cannot pass trial court's action in rendering judgment on on alleged errors of law.-State v. Clark, 146 cross-complaint.-Mancourt v. Wissel, 146 N.

N. E. 815.

E. 423.

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