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be looked to in interpreting the statute in controversy. As we have seen, the spirit and purpose of said employers' liability act, so far as railroads are concerned, was the protection of employés engaged in the dangerous and hazardous work of operating railroads in this state, and we hold that it applies to every corporation, company, copartnership, or person engaged in the dangerous and hazardous business of operating a railroad, and their employés who are engaged in, such dangerous and hazardous work.

It is not necessary, therefore, to decide whether or not said employers' liability act would be constitutional, if it only applied "to corporations engaged in operating railroads and not to persons engaged in the same business" as claimed by appellant.

Under the fifth clause of rule 22 (55 N. E. vi), no alleged error or point not contained in appellant's statement of points can be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing, but will be considered waived. Under rule 24 (55 N. E. vi), the brief may be followed by an argument, which shall be confined to a discussion and elaboration of the points contained in the briefs.

Having determined all the questions not waived, and finding no available error, the judgment is affirmed.

(40 Ind. App. 125)

TIPPECANOE LOAN & TRUST CO. v. CARR et al. (No. 5,818.) 1 (Appellate Court of Indiana. Division No. 1. Oct. 30, 1906.)

1. ADMINISTRATORS-ACTIONS COMPLAINT.

Complaint in an action by an administrator against decedent's sole heir, charging defendant with the sale of real estate belonging to decedent, and that a certain sum is due from defendant to complainant on account of moneys "and other personal property" wrongfully converted by defendant, does not by the use of the words "and other personal property," sufficiently allege that decedent at the time of his death owned any personal property.

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Where the sole heir sold land belonging to decedent's estate, and chargeable with the payment of decedent's debts, the administrator is not entitled to convert the proceeds into assets for the payment of debts, as the sale does not abridge the administrator's right to convert the land into assets for that purpose. 3. APPEAL-HARMLESS ERROR.

Where judgment in the main action was for defendant, the sustaining of the demurrer of the garnishee was harmless, as no judgment could be sustained against him.

Appeal from Circuit Court, Tippecanoe County; R. P. De Hart, Judge.

Action by the Tippecanoe Loan & Trust Company as administrator of the estate of J. P. Oglebay, deceased, against Ada May Carr and another, as garnishee. From a judgment sustaining the demurrers of defendant and garnishee, plaintiff appeals. Affirmed.

Will R. Wood and Oglebay & Oglebay, for appellant. Stuart, Hammond & Simms, for appellees.

MYERS, J. Appellant commenced this action against appellees, charging appellee Carr with the sale of real estate belonging to appellant's decedent, and appropriating the proceeds arising from such sale to her own use. Also with the conversion of personal property, and personal judgment is demanded. The complaint consisted of two paragraphs. A demurrer for want of facts was sustained to the first, and thereafter the second paragraph was dismissed. Judgment in favor of appellees. The ruling of the court in sustaining the demurrer to the first paragraph is the only error assigned.

The substance of the paragraph in ques tion shows that appellant is the duly qualified and acting administrator of the estate of J. P. Oglebay, Jr., deceased; that said decedent left, as his only heirs at law, his wife, now Ada May Carr, one of the appellees herein; that no administration was ever had upon said estate; that decedent at the time of his death was the owner of certain real estate in Tippecanoe county, Ind.; that thereafter his said wife sold said lands, and, in payment therefor, received certain promissory notes; that said notes, as well as the proceeds resulting therefrom, belong to the estate of said decedent, and appellant, as administrator, is entitled to the same, to be administered upon as provided by law; that a claim for $1,000 evidenced by a promissory note executed by the said Oglebay in his lifetime has been filed against said estate; "that there is now due from said defendants to said complainant, the sum of $2,000, on account of moneys and other personal property, which the said defendant Ada May Carr has wrongfully converted to her own use, which said property belongs to your complainant, as administrator of said estate, as aforesaid; "that the assets above referred to are the only assets to the knowledge of appellant, out of which to pay the liabilities thereof; that appellee Ada May Carr is a nonresident, and the National Fowler Bank of Indiana is made a garnishee defendant, under the belief that it has in its possession, as agent of appellee, said notes or the proceeds thereof. Judgment for $2,000 is demanded.

1. There is no direct averment in this paragraph that appellant's decedent, at the time of his death, owned any personal property. The statement that "other personal property" was converted by Mrs. Carr to her own use, in the absence of a showing of property of that character to appropriate, is of no consequence. The rule is that matters of necessary inference from substantial facts are to be considered on demurrer, although they may be imperfectly or defectively pleaded. Malott v. Sample, 164 Ind. 645, 74 N. E. 245; Wagoner v. Wilson, 108 Ind. 210, 8 N. E. 925; Evansville, etc., R. R. Co. v. Darting, 6 Ind. App. 375, 33 N. E. 636. But the pleader is not entitled to have a substantial or ultimate fact inferred from a mere recital or conclusion in aid of a pleading thus challenged (Greenfield Gas Co. v. Trees, 165 Ind.

'Rehearing denied. Transfer to Supreme Court denied.

209, 75 N. E. 2; Indianapolis, etc., Transit Co. 7. Foreman, 162 Ind. 85, 98, 69 N. E. 669; South Bend, etc., Plow Co. v. Cissne, 35 Ind. App. 373, 74 N. E. 282), and this we would be compelled to do if the pleader's statement in this paragraph in regard to personal property is to have any force. The The law is well settled in this state that the title to lands upon the death of the owner intestate, immediately vests in the heirs of such deceased owner, subject to be divested should the personal estate prove insufficient to pay the debts of such decedent. Rountree, Adm'x, v. Pursell, 11 Ind. App. 522, 537, 39 N. E. 747; Humphries, Adm'r, v. Davis, 100 Ind. 369; Moore v. Moore, 155 Ind. 261, 264, 57 N. E. 242; Weakley v. Conradt, 56 Ind. 430. The pleading avers that appellee Carr is the sole heir of appellant's decedent. And, being the only heir, it follows that, at common law, and by force of the statute, nothing to the contrary appearing, she took the fee to the land. Rountree, Adm'x, v. Pursell, supra; Haugh v. Smelser, 31 Ind. App. 571, 66 N. E. 55, 506; Walker v. Diehl, 79 Ill. 473. The authority of an administrator to sell real estate to pay debts, in the absence of a testamentary provision to that effect, is statutory, and can be legally exercised only by order of court. Moore v. Moore, supra; First National Bank v. Hanna, 12 Ind. App. 240, 245, 39 N. E. 1054; Walker v. Diehl, supra. At common law, an administrator has no dominion over the real estate of his decedent for any purpose. But, by statute (section 2485 Burns' Ann. St. 1901), the common-law rule has been modified so that now an administrator may sell decedent's real estate to make assets for the payment of debts, when there is an insufficient personal estate (section 2489 Burns' Ann. St. 1901), by first obtaining an order from the court so to do. That proceeding being purely statutory, the procedure and rules of practice thus prescribed must be followed. Seward v. Clark, 67 Ind. 289, 294. It is the land, and not the proceeds derived from the sale thereof by an heir, which the statute authorizes an administrator to convert into assets for the purpose of paying debts of a decedent. As we have seen, Mrs. Carr took the title to the land, and for ought that appears took possession of the same and had the benefit of its use. True, the land was chargeable with the payment of the debts of appellant's decedent; but the fact that it was sold by Mrs. Carr to a third party made it none the less liable to be taken by the administrator for that purpose. The purchaser acquired only the rights of the heir, and was "bound to know that until the estate is finally settled, the sale of the real estate may become necessary for the payment of debts." Moore v. Moore, supra. The sale of the land by Mrs. Carr cannot be regarded as anything more than a sale of her interest or equity therein. The right of the administrator was in no way abridged, nor is it shown that the adminis

1 Transferred to Supreme Court, 79 N.

| trator in any manner thereby suffered any injury or damage whatever. Therefore, as to such administrator, we cannot say, under the pleaded facts, that the Carr sale was unlawful, or that her possession of the proceeds received from such sale is wrongful. The principle underlying appellant's argument applies to persons characterized by our statute (section 2413 Burns' Ann. St. 1901) as intermeddlers, and is not applicable to the case at bar, for the reason that Mrs. Carr's alleged liability grows out of the exercise of a legal right, while the principle for which appellant contends is effective to create liability against persons "who shall unlawfully intermeddle with any of the property of a decedent." Section 2413, supra. The demurrer of appellee Carr was properly sustained.

2. By proper garnishee proceedings in the court below appellee the National Fowler Bank was made a garnishee defendant. It filed a demurrer to the complaint for want of facts. This demurrer was also sustained to the first paragraph, and this ruling is assigned as error. The purpose of a garnishee proceeding is to furnish a process for the collection of the judgment rendered in the main action. It is a mere incident of that action, and depends upon it. Robbins v. Alley, 38 Ind. 553. Without a valid judg

ment against the principal defendant thereof, garnishee proceedings based thereon must fall. Matheney v. Earl, 75 Ind. 531; Debs v. Dalton, 7 Ind. App. 84, 34 N. E. 236; Pick v. Mutual Life Ins. Co., 94 Ill. App. 483; Hauptman & Co. v. Whittle, 85 Mo. App. 188; Brake on Attachment, § 460. In the case at bar Mrs. Carr is the principal defendant, and, as judgment on demurrer was rendered in her favor, the element essential to sustain a valid judgment against the bank, as garnishee, is wanting. This being true, it follows that the ruling on the bank's demurrer is harmless.

Judgment affirmed.

(29 Ind. App. 701) CHICAGO, I. & L. RY. CO. v. PRITCHARD. (No. 5,071.)1

(Appellate Court of Indiana. Oct. 30, 1906.) COURTS APPELLATE JURISDICTION TRANSFER OF CAUSE.

Under the express provisions of Acts 1901, p. 569, c. 247, § 15, where the six judges of the Appellate Court are equally divided on the determination of an appeal it will be transferred to the Supreme Court.

Appeal from Circuit Court, Clay County; Presley O. Colliver, Judge.

Action between Walter K. Pritchard, administrator, and the Chicago, Indianapolis & Louisville Railway Company. From the judgment, the railroad company appeals. Transferred to Supreme Court.

E. C. Field, G. A. Knight, and H. R. Kurrie, for appellant. S. A. Hays, Coffey & McGreg or and C. E. Akers, for appellee.

E. 508. Rehearing denied, 81 N. E. 78.

PER CURIAM. The six judges of the Ap- | facts. The findings say nothing about any pellate Court being equally divided upon the determination of the appeal in this cause, the same is transferred to the Supreme Court, under section 15 of an act of the General Assembly entitled "An act concerning appeals" etc., approved March 12, 1901 (Acts 1901, p. 569, c. 247).

(38 Ind. App. 655)

PIERSE v. BRONNENBERG'S ESTATE. (No. 5,831.)1

(Appellate Court of Indiana. Division No. 1. Oct. 23, 1906.)

APPEAL-ASSIGNMENT OF ERRORS-DEFECTSAMENDMENTS.

In a suit to establish a claim against the estate of a decedent, one of the administrators filed an affidavit for a change of venue and both administrators demurred to the claim. The trial court made no finding relating to the appointment of administrators, and stated that decedent died on a date specified, and that the claimant was not entitled to recover. The assignment of errors began: "E. B. P. [claimant], Appellant, v. Estate of F. B., Deceased, Appellee." The attorneys who represented the estate and the administrators in the trial court filed, on appeal, a brief on the merits. Held, that appellant, on motion, was entitled to amend the assignment of errors by inserting the names of the administrators.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 1359.]

Appeal from Circuit Court, Madison County; Vinson Carter, Special Judge.

Proceeding by Eldon B. Pierse to establish a claim against the estate of Frederick Bronnenberg, deceased. There was a judgment dismissing the claim, and claimant appeals. On motion to dismiss, and for leave to amend the assignment of errors. Motion to dismiss overruled, and motion to amend assignment of errors granted.

William A. Kittinger and William S. Diven, for appellant. Bagot & Bagot, for appellee.

ROBINSON, C. J. The record shows that appellant filed in the office of the clerk of the Madison circuit court his claim against the estate of Frederick Bronnenberg, deceased. The claim not having been allowed by the duly qualified and acting administrators of the estate, the same was placed on the appearance docket. Afterwards Calvin A. Bronnenberg, as one of the administrators of the estate, filed an affidavit for a change of venue from the county and the cause was sent to Delaware county. In the Delaware circuit court the administrators, Calvin and Ransom Bronnenberg, demurred to the claim. The cause seems to have been carried along on the docket as "Eldon B. Pierse v. Estate of Frederick Bronnenberg." By agreement the cause was certified back to the Madison circuit court, and Calvin A. Bronnenberg, as one of the administrators, made affidavit for change of venue from the judge, and a special judge was appointed to try the cause. Upon a trial the court made a special finding of the

administrators having been appointed, but does state that Frederick Bronnenberg died in June, 1901. Among the conclusions of law it was stated that the claimant was not entitled to recover anything on his claim. Judgment was rendered July 8, 1905. The assignment of errors begins: "Eldon B. Pierse, Appellant, v. Estate of Frederick Bronnenberg, Deceased, Appellee." The record was filed in this court August, 1905, and appellant's brief filed November 6, 1905. On November 21, 1905, the attorneys who represented the estate and the administrators in the trial court filed a brief on the merits of the case in this court as "attorneys for appellee." On August 31, 1906, appellee filed a motion to dismiss the appeal on the ground that the assignment of error does not contain the full names of all the parties, and does not contain or purport to contain the name of any appellee. On September 8, 1906, appellant filed a motion for leave to amend the assignment of errors by making "Calvin A. Bronnenberg and Ransom Bronnenberg, administrators of the estate of Frederick Bronnenberg, deceased," appellees.

It is clear that the assignment of error is defective. But it clearly appears from the record that there were administrators of the estate, and, representing the estate through their attorneys, they have entered their appearance in this court, and filed a brief upon the merits of the case. Appellant and the estate only will be affected by either an affirmance or a reversal of the judgment. If the names of the administrators are put in the assignment as representing the estate, an affirmance or a reversal of the judgment will have the same effect it would have without such amendment. We think the reasoning in McConahey's Estate v. Foster, 21 Ind. App. 416, 52 N. E. 619, and cases there cited, is applicable to the question here presented, and upon the authority of that case the motion to dismiss is overruled, and the motion to amend the assignment of errors is granted.

(38 Ind. App. 661) CROMER et al. v. CITY OF LOGANSPORT. (No. 6,055.) (Appellate Court of Indiana, Division No. 1. Oct. 24, 1906.) CORPORATIONS

1. MUNICIPAL

IM

STREET PROVEMENTS-DAMAGES-SURFACE WATER. A city is liable for damages arising from its failure to provide an outlet for surface water accumulated through its street improvements from a large extent of territory and brought to one locality, to which without such improvements it would not have come.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1785.] 2. INJUNCTION-NATURE AND SCOPE-RECUBRING INJURY.

Where plaintiff's property was damaged during every recurring ordinary rainfall by surface water accumulated by defendant's street improvements for which no proper outlet had been provided, plaintiff was entitled to an in

1 Judgment affirmed, 79 N. E. 419. On rehearing, 81 N. E. 739. Rehearing denied, 82 N. E. 126. Transfer to Supreme Court denied.

junction to restrain the future recurrence of such injury.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, § 101.]

3. DAMAGES-DUTY OF PERSON INJURED TO PREVENT DAMAGE-MITIGATION-CONTRIBUTORY NEGLIGENCE.

Where plaintiff's property was injured by surface water negligently collected and permitted to flow on plaintiff's property by defendant city, the fact that plaintiff's own negligence aggravated the injury sustained was not a defense to his action, but was available only in mitigation of damages.

4. INJUNCTION-NUISANCE REMEDYING DE

FECTS.

Where a city failed to provide an outlet for surface water accumulated through its street improvements from a large extent of territory, and in a suit for an injunction the court held that complainant was entitled to relief, it was improper to give the city eight months within which to remedy the defect.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 124-126.]

Appeal from Circuit Court, Cass County; John S. Lairy, Judge.

Action by Robert Cromer and others against the city of Logansport. From a judgment in favor of plaintiffs for less than the relief demanded, plaintiffs appeal. Transferred from the Supreme Court. Reversed and remanded with instructions.

Frank V. Guthrie and Nelson, Myers & Yarlott, for appellants. J. W. McGreevy and McConnell, Jenkines, Jenkines & Stuart, for appellee.

BLACK, J. The appellants, as owners of certain real estate in the city of Logansport, sued the appellee to recover damages for injury caused by water which the city by its grading and construction of streets brought to said real estate, for which it failed to provide an outlet, whereby it overflowed the real estate of the appellants, and also to obtain an injunction to prevent the continued recurrence of such injury; the complaint being filed September 5, 1903. There were two paragraphs of complaint and an answer in denial. The court rendered a special finding; the appellants excepting to the conclusions of law. The court found, in substance, that the appellants since March 8, 1897, had been the owners in fee of the real estate in question, upon which they had erected two buildings in which for the past six years they had conducted the business of manufacturing, tiling, and the storage and sale of cement, hay, etc., the business being owned by the appellants and conducted by one of them as manager; that the real estate is a triangular piece of ground, the southwest line of which is 4,800 feet in length, curving with the right of way of a railroad named, the north line extending east and west 420 feet, and the east line extending north and south 256 feet; that on and prior to November 18, 1896, there was a large gravel pit in the western portion of the real estate, extending into West Broadway street, a street which extended east and west across the real estate of the

appellants, north of the portion thereof on which their said business was conducted.

It was shown that Wilkinson street extended along the east side of said real estate, crossing West Broadway street; that 20 years or more before the time of the trial the city established grades of these and a number of other streets named and intersecting alleys, east and north of said real estate, and the same were improved from year to year, by which grades and improvements the water was caused to flow from the streets until it gathered in a body at the corner of Wilkinson and West Broadway streets, and thence it flowed west along West Broadway, emptying into the gravel pit, the grade and improvement of the last-named street west of Wilkinson street being such as to cause the water so to flow and empty without injury to the property of the appellants, and the water continued so to flow until the winter or spring of 1897 or 1898. It was shown that November 18, 1896, the common council of the city so changed the grade of West Broadway street from Wilkinson street as to cause the flow east from the railway to the street last named and to prevent the flow westward of the water accumulating at the crossing of West Broadway and Wilkinson streets, and about five or six years before the trial the city improved the street, sidewalk, and gutters to conform to the grade thus changed, by raising the same from Wilkinson street westward, and thereby entirely stopped the flow westward of the water so accumulating at said crossing. The proceedings of the common council were set out, showing its action in this behalf; and it was found that the city, at the time when it changed the grade of West Broadway west of Wilkinson street, did not, nor did it afterward. make any provision for the disposition of the water which accumulated at the corner of those two streets, and provided no outlet for its discharge, and never assessed or tendered to the appellants or their grantors any damages by reason of the change in the grade and the flow of the water, nor took any steps to protect the premises of the appellants from the flow of water: "and it is found that the action and proceedings of said city were wrongful."

It was found that, after the improvement had been made by the city in raising the grade west of Wilkinson street, on West Broadway, ordinary rains of one or two hours duration caused great accumulation of water at West Broadway and Wilkinson streets, so that the streets, gutters, and sidewalks were overflowed, the water sometimes standing a foot deep therein; and the water thus accumulating flowed south on Wilkinson street for half a block to an alley which extended westward from that street across the real estate of the appellants, and thence flowed with great force westward through the alley and on and over the premises of the appellants, spreading over the same and flow

ing into the buildings thereon, south of the alley, carrying débris and sediment of the streets thereon "and causing considerable and severe injury and damage to the plaintiffs' premises and merchandise kept and used in the business. It is found that this injury and damage is a recurring one and liable to occur after ordinary rains of one hour or two hours duration, and the plaintiffs have frequently complained to the mayor and other officers of the city of the injury thus sustained, and were told in response that the city could do nothing, and were refused any redress." It was found that in the year 1897 the appellants suffered "injury and damage to the stock of merchandise by reason of the flow of water herein found, in the sum of $100;" that in the year 1898 they suffered "injury to their personal property in the sum of $150, and in the year 1899, from like cause, in the sum of $100, and in the year 1900, from like cause, $200, and in 1901, from like cause, $150, and in the year 1902, from like cause, $250, and in the year 1903, from like cause, $100, and that the cement damaged was in sacks and placed on the cement floor, which was on a level with the surface of plaintiffs' lot; that the cement was so placed by the plaintiffs knowing that it would be injured if permitted to remain there, and that it could have been removed and damages avoided."

It was further found that the lands of the appellants, at the point where the alley discharges the water thereon, is below the grade of Wilkinson street, and the city has failed to furnish any outlet for the water so discharged; that the grade of the railroad where it crosses Wilkinson street (at the south end of the land of the appellants) is 22 inches higher than the grade of that street at the alley where the water is discharged upon the property of the appellants; that there is no culvert under the railroad on that street for the purpose of affording an outlet, and before the water could seek an outlet on that street it would be standing 22 inches above the grade of that street at the alley where the water is conducted upon the property of the appellants; that, at the point where the alley discharges the water upon the lands of the appellants, they are practically on a level with the alley, and thence they slope gradually downward to the southwest to the railroad right of way, and the railroad company 30 years before the trial had constructed a culvert under its tracks, on the southwest side of the lands of the appellants, for its own use, and all the water discharged from said alley would pass over and across said lands before it would pass through said culvert; that the railroad embankment forming the southwest boundary line of the property of the appellants is considerably higher than said lands; that in recent years this culvert was stopped up by reason of the widening of its grade and roadbed by the railroad company, so that the water is impeded in flowing through.

The court stated, as its conclusions of law upon the foregoing facts, that "the law is with the plaintiffs, and I find for the plaintiffs on the first paragraph of complaint, and that their damages be assessed at the sum of $100, and that the defendant, the city of Logansport, should be perpetually enjoined from permitting the water to flow through said alley on the lands of the plaintiffs.” Afterwards the court stated, as "amended conclusions of law," the following: "The court finds as the law that all the merchandise injured and damaged as herein found from the year 1898 to the year 1903, both inclusive, was injured and damaged by reason of the plaintiffs placing said merchandise upon the ground floor, at the place where the plaintiffs knew before placing the same that the merchandise would be damaged and destroyed, if allowed to remain where it was placed; that plaintiffs failed to use reasonable care, under all the circumstances, to prevent said injury; and that his subsequent negligence and failure to use such care became the proximate cause of the injury." This expression of afterthought by the court, so far as it contained statements of sufficient definiteness and directness, constituted a further finding of matter of fact, rather than conclusions of law. The real and effectual conclusions of law were that the plaintiffs under their first paragraph of complaint were entitled to an injunction and were entitled to recover damages in the sum of $100, the amount of the damage to merchandise in the year 1897, thus omitting any damages for the subsequent years, in each of which damage in amount stated in the finding was suffered the same in kind as that found to have been suffered in 1897.

At the conclusion of the evidence, and before the rendition of the special finding, the appellants moved in writing to be permitted to amend the second paragraph of their complaint, by inserting therein, at what place was not stated, the words, "without fault or negligence on the part of the plaintiffs." The first paragraph contained a denial of negligence on the part of the appellants, but such an averment was not contained in the second paragraph. The court manifestly regarded and treated the first paragraph graph on which it found for the appellants as sufficient for the recovery of damages for all the injuries found which were not found to be attributable to contributory fault of the appellants. In its finding it treated the first paragraph as being as available in this regard as the second paragraph would have been if the amendment were permitted. So that aside from the consideration of the court's large discretion as to amendments, the appellants practically suffered no detriment from the overruling of this motion.

As to the liability of the city for damages arising from its failure to provide an outlet for the surface water accumulated through

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