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5. SAME-NATURE OF FORMER PROCEEDING- iary society to that order, were frequently in EVIDENCE.

each other's company, and under pretense of In a bastady proceeding in which defendant pleaded a judgment of dismissal rendered

love and affection for relatrix, and by virtue in a former proceeding, evidence tending to show

of his promise of marriage, and by reason that the prosecuting attorney had no knowledge of his standing in the community and said of such former proceeding until long after its termination was admissible to show that the

order, had complete control of relatrix's love state was not a party.

and confidence; that he made three trips to 6. SAME-DISMISSAL OF FORMER ACTION

see relatrix while she resided with her aunt, EVIDENCE.

telling her on the last trip that on account In a bastardy proceeding defendant pleaded

of the publicity as to her condition he would a judgment of dismissal in a former proceeding. Relatrix replied that her consent to the dis

not marry her, but would pay her $50 for missal was obtained by fraud, and that when the purpose of paying her expenses of lying it was given her mind was under the absolute in, doctor bills, and the like incident to the control of defendant. Held that, though it ap

birth of the child; that without the knowlpeared that on the day relatrix consented to the dismissal defendant had stated that he would

edge and consent of the relatrix he employed not marry her, nevertheless evidence that they an attorney to prepare a complaint, charging had been engaged was admissible in rebuttal. him with bastardy, and, on the day the pro

Appeal Circuit Court, Montgomery County; ceedings set out in appellant's answer were Jere West, Judge.

entered and had before Justice Brewer, Action by the state of Indiana, on rela

he informed relatrix that unless she would tion of Estella McGill, against Charles W.

go before a justice of the peace and sign a Gooding. From a judgment for plaintiff,

receipt he would not do anything for her defendant appeals. Affirmed.

whatever; "that relatrix was completely

crushed in mind, body and spirit by defendClodfelter & Fine, for appellant. Jones &

ant's declaration and the realization of her Murphy, O. P. Lewis, and O. B. Ratcliff, for

condition,” and, being without a home and appellee.

wholly destitute of means of support, ac

companied appellant to said justice's office, MYERS, J. This is an action begun by where said proceedings were had, and, withappellee against appellant before a justice out anything being said, or any pretense reof the peace, charging appellant with being lative to her accepting any money for the the father of the relatrix's unborn bastard maintenance of the child, but believing and child. The complaint is in the usual form relying upon the fraudulent representations filed in such actions. On a hearing before of appellant by him made to her, as to the the justice, appellant was held to appear in purpose and purport of the instrument she the Fountain circuit court, where was filed was signing, relatrix signed a receipt for a transcript of the proceedings before said $50, which was fraudulently represented to justice. Appellant answered in three para- her as being a release of his liability to her graphs; the first paragraph being a general on account of her pending sickness, and did denial. The second and third paragraphs not know that she was signing anything purof answer show such proceedings had before porting to be a settlement to her satisfacEdward M. Brewer, a justice of the peace tion for the maintenance of said child unof Union township, Montgomery county,

county, born; that the prosecuting attorney was not Ind., constituting a former adjudication and present nor sent for, nor any other person settlement of the present cause of action. To acting for or to advise her, nor did she these latter two paragraphs of answer, ap- understandingly enter of record any order, pellee answered in three paragraphs; the receipt, paper, or any other declaration showfirst two filed in the Fountain circuit court, ing that satisfaction had been made to her and the third in the Montgomery circuit for the maintenance of said child; that said court, where the cause was sent on change of proceedings before Justice Brewer were set venue. The first paragraph of reply is a in motion and carried on by appellant, for general denial, the second and third is ad- the fraudulent purpose of obtaining the dressed to the second and third paragraphs settlement of his liability in bastardy, under of answer separately and severally. The the fraudulent pretense of paying the exsecond paragraph of reply, after averring penses of her pending sickness; that said facts covered by the complaint, avers that justice had no knowledge of the real purrelatrix and a younger sister are the only pose for which said receipt was signed, and living members of her immediate family; entered said judgment of dismissal upon the that relatrix is an orphan, and at the time filing of the papers, theretofore prepared by her condition became known resided at the appellant's attorney; that, after she signed home of Jasper N. Philpott; that by reason the receipt for $50, that sum was paid to of her condition she was driven from her said justice, and by him to relatrix, and no then home, and from whence she went to the hearing of said cause was had; that she home of an aunt in the city of Crawfords- received no other consideration, and said sum ville, where she was living at the time the is wholly insufficient for the maintenance proceedings were had before Justice Brewer; of said child. The reply further shows an that appellant, as a member of a fraternal offer to allow a credit of $50 against any order, and relatrix, a member of an auxil- judgment which may be rendered against appellant in this action; that relatrix is waive, yet she has the power to dismiss such without any money or means with which to action, and such dismissal and judgment repay said $50 or any part thereof. A de- thereon rendered by a justice of the peace, murrer for want of facts was addressed to pursuant to section 1006, supra, will constithis paragraph and overruled. Thereupon tute a complete bar to another action for the on motion and affidavit the venue of this same cause. State ex rel. v. Carlisle, supra. cause was changed to the Montgomery cir- In the case at bar appellant argues that cuit court, where a third paragraph of reply Justice Brewer had jurisdiction of the subwas filed. This paragraph avers practically ject-matter, and, the proceedings and judgthe same facts as those stated in the second ment appearing regular on their face, such paragraph, with the additional averment judgment must control until set aside by a that said justice of the peace, Brewer, knew direct attack, even though it be tainted with at the time he paid relatrix said $50 that fraud. Sbideler v. State, 129 Ind. 523. 525, she did not understand the nature of the 28 N. E. 537, 29 N. E. 36, 16 L. R. A., 225, papers and records which she had signed; 28 Am. St. Rep. 206; Palmerton, V. Hoop, that he knew that appellant was not paying 131 Ind. 23, 28, 30 N. E. 874. Appellee relatrix any money whatever for the main- claims that each paragraph of the reply tenance of said unborn child; that he con- shows that relatrix was induced by fraud spired with the defendant for the purpose of to enter the acknowledgment and dismissal deceiving relatrix and in procuring her to set up in appellant's answers, and for that enter said satisfaction of record, knowing reason, and because the state was not in that the proceedings before him were for fact a party to the proceedings before Justice the purpose of obtaining settlement of de- Brewer, the judgment was a nullity. Gresfendant's liability in bastardy, under the ley v. State ex rel., supra; Ice v. State ex fraudulent proceedings and pretext to pay rel., supra. In our opinion each paragraph relatrix for her sickness. A demurrer to of the reply exhibits facts showing that the this paragraph of reply, for want of facts proceedings had before Justice Brewer were sufficient to avoid either the second or third procured, managed, and controlled by apparagraphs of answer, was overruled. The pellant; that the state was a party only in issues thus formed were submitted to a jury, name and not in fact. No one was present trial and verdict in favor of appellee, motion having authority to act for the state. In for a new trial overruled, judgment in ac- the name of the state, appellant brings an cordance with the verdict of the jury, and for action against himself to secure maintenance $550, with a credit of $50, and ordering the for his own offspring. He appears to the same paid in partial payments, and from action and submits himself to the jurisdiction which judgment appellant appeals to this of the court. He has the mother of the child court.

accompany him into open court, and there 1. This is a civil action. Reynolds V. under the sanctity of a judicial proceeding, State ex rel., 115 Ind. 421, 17 N. E. 909; and for the purpose of relieving the public State v. Carlisle, 21 Ind. App. 438, 52 N. and society of the burden of maintaining E. 711. And conceding that the answers such child, he pays to the penniless, homeless incorporating the proceedings had before mother, who has just arrived at her majority, Justice Brewer in bar of this action are the munificient sum of $50, and she enters sufficient brings us to the consideration of of record an admission that provision for the facts pleaded in the second and third the maintenance of the child has been made paragraphs of the reply. It is settled that to her satisfaction. In our opinion, considerall prosecutions for bastardy must originate ing the facts disclosed by the reply, the state before a justice of the peace. Armstrong was not a party to the proceedings before v. State, 24 Ind. App. 289, 56 N. E. 681. Justice Brewer, and, this being true, the That such proceedings must be prosecuted judgment was not rendered in an adversary in the name of the state, and for the benefit proceeding, and for that reason will not of the illegitimate child. Gresley v. State bar another action for the same cause. ex rel., 123 Ind. 72, 24 N. E. 332; Ice v. Shideler v. State, supra; Ice v. State ex State ex rel., 123 Ind. 590, 24 N. E. 682; rel., 123 Ind. 593, 24 N. E. 682. The section Dehler v. State ex rel., 22 Ind. App. 383, 53 of the Code above referred to does not refer N. E. 850. Our Code (section 1006, Burns' to the relatrix as a party, but by its terms Ann. St. 1901) provides that “the prosecuting she is designated as the prosecuting witwitness, if an adult, may at any time before ness, and the Supreme Court, in Ex parte final judgment, dismiss such suit if she will Hasse, 50 Ind. 149, and this court, in Wilfirst enter of record an admission that pro- liams v. State ex rel., 3 Ind. App. 350, 29 N. vision for the maintenance of the child has E. 1079, held that the relatrix was not a been made to her satisfaction,

and party to the action. Therefore, granting that such entry *

shall be a bar to all she had full authority to determine the other prosecutions for the same cause and question of satisfactory provision for the purpose.” Considering the above decisions child's maintenance, this she could do only along with the Code provision, it would seem in case there was a bona fide action pending, that, while the state is a party to the action, and, having determined that there was no and has rights which the relatrix cannot such action pending before Justice Brewer, her acknowledgment is unavailing for any stance to explain the actions of a young, purpose, as the entire proceedings were void. penniless, homeless, inexperienced, and heartWe are clearly of the opinion that the broken girl, wishing to curry favor with the weight of authority in this jurisdiction sus- author of her downfall. We are not to say tains the ruling of the trial court in holding what weight should be given this evidence, that each paragraph of the reply contains but the jury had a right to consider it for facts sufficient to avoid appellant's answers. whatever it was worth. Appellant requested

2. Appellant also insists that the para- the court to give the jury two instructions. graphs of reply are bad for the reason that Both were refused. These instructions are neither contain an allegation that the money to the effect that, if the jury should find paid to relatrix was ever refunded, or that that the proceedings had before Justice an offer to refund the same was made before Brewer were as alleged in appellant's the commencement of this action, citing answers, under the evidence in this case State ex rel. v. Carlisle, supra. By reference they should return a verdict for appellant. to that case it will be seen that the relatrix, These instructions took from the jury their upon her own motion, began the action

right to consider the evidence applicable to whereby upon dismissal she received $20.

the reply, and were based upon the theory All the parties to that action appeared in that there was no evidence in the record

tending to prove that the Brewer judgment that a judgment rendered before a justice was a nullity. In our opinion there was no of the peace, under the facts appearing, was error in refusing to give these instructions. sufficient to bar another action for the same

The court, upon its own motion, in substance cause. Also that, before such judgment told the jury that, if they found that the could be set aside, the pleadings must affirm- action and proceedings had before Justice atively show a refunding or offer to refund

Brewer were procured and brought about the money paid to the relatrix. There is a wholly by appellant, and that the money marked difference between that case and the

paid to relatrix was paid by appellant and case at bar. In the Carlisle Case the money received by her in payment and on account was paid and the dismissal had in an adver

of expenses of her pending sickness, it would sary proceeding, and was not a voluntary

not be necessary to return or offer to return payment on the part of the defendant, while

this money prior to bringing this action in in the case at bar, the proceedings being order to authorize a recovery. There is eviabsolutely void, for the reasons heretofore dence in the record to which this instruction stated, the payment was a voluntary contri- is pertinent, and, this being true, what we bution, or at least in so far as it was paid have heretofore said on the question raised on account of any judicial proceeding.

by this instruction warrants the conclusion 3. The questions arising on the assignment that it was not erroneous. of error, based upon the overruling of appel- Finding no error in the record, the judg. lant's motion for a new trial, relate to the ment of the trial court is affirmed. admission of certain evidence and to the giving and in refusing to give to the jury

(38 Ind. App. 396) certain instructions. After a careful reading and consideration of the evidence admitted

BOND V. MAY. (No. 5,787.) over appellant's objection, we find no error (Appellate Court of Indiana, Division No. 1.

June 22, 1906.) in this particular authorizing a reversal of the judgment. It is the duty of the prose

1. PARTNERSHIP-ACTIONS BETWEEN

PART

NERS-ACCOUNTING. cuting attorney to represent the state in such

One partner cannot maintain a suit against actions, and, upon the theory of the replies

his copartner to recover an alleged indebtedfiled, any evidence tending to show that the ness growing out of a partnership transaction state's representative was not notified, and until the affairs of the partnership are closed

up and its debts are paid. had no knowledge of such proceeding until

[Ed. Note.For cases in point, see vol. 38, long after its disposition, was competent as

Cent. Dig. Partnership, § 157.] tending to prove the ultimate fact that the

2. SAME. state was not a party. The evidence tending Plaintiff and defendant purchased land, to prove that relatrix and defendant were which was deeded to them as co-tenants. There. engaged to be married was admissible, unless

after defendant lived on part of the land and

farmed it with implements and stock, part of because it was offered on rebuttal. Ramey

which were furnished by plaintiff under an V. State ex rel., 127 Ind. 243, 26 N. E. 818; agreement that defendant might use such pro Gemmill v. State ex rel., 16 Ind. App. 154,

duce of the farm as was necessary for the

support of himself and his family and apply 43 N. E. 909. Referring to the reply, we find

the balance to the taxes upon the entire tract allegations showing that relatrix was under

and on the purchase money. Soon after plainthe absolute control of appellant on the day tiff conveyed his undivided half interest in one she accompanied him to the office of Justice

half of the land to defendant, and vice versa.

There were certain improvements on the land Brewer, and, while he told her on that day

conveyed to defendant, and it was agreed that he would not marry her, evidence of such when plaintiff desired to improve his portion of agreement was nevertheless admissible on

the land defendant should pay him one-half the rebuttal as tending to show the relations

value of the existing improvements and turn

over the implements and stock which had origi. existing between them, and as a circum- nally been furnished by plaintiff. While de

fendant was farming the land under this arrangement he gave certain notes for borrowed money which he used for his own purposes, which notes were signed by defendant, his wife, and by plaintiff. There was no firm name, and no evidence that defendant had any authority to bind plaintiff by a signature on the notes, and plaintiff in fact signed the notes some time after they were executed and signed by defendant. Held, that no partnership existed between the parties, so that the notes were not partnership obligations.

Appeal from Circuit Court, Jasper County; Chas. W. Hanley, Judge.

Action by Peter May against Wilbur D. Bond. From a judgment for plaintiff, defendant appeals. Affirmed.

Foltz & Spitler, for appellant. Jesse E. Wilson, for appellee.

BLACK, J. The appellee, who was the plaintiff, and the appellant, who was the defendant, in 1894 contracted with one Parkinson to purchase from him certain real estate, being two adjoining quarter sections of land in Jasper county; and Parkinson, in February, 1895, by his general warranty deed conveyed the land to the appellee and the appellant as tenants in common; the purchase price being $11,200. At and before this conveyance the grantees paid a part of the price, $3,500, each paying an equal portion thereof, and they became jointly indebted to Parkinson for the remainder of the price, $7,700, and they executed to him their mortgage therefor upon the half section. The appellee was the appellant's father-inlaw, and they resided with their families in the same neighborhood in Illinois, and the appellee continued to reside there; but in the spring of the year 1895 the appellant removed with his family to the land so conveyed to him and the appellee, and took possession of the half section, and he continued to occupy and to use for agricultural purposes the two quarter sections for eight years thereafter. He brought with him certain agricultural implements and animals owned by him, and the appellee sent to the farm certain agricultural implements and animals owned by him, which were used upon the farm. In August, 1895, the appellant conveyed to the appellee the undivided onehalf interest of the former in the western quarter section, and the appellee conveyed to the appellant the undivided one-half interest of the former in the adjoining eastern quarter section; each conveying for the expressed consideration of $5,600, and the deed of conveyance to each being expressly made subject to the purchase-money mortgage to Parkinson, and each grantee by the terms of the deed of conveyance to him assuming and agreeing to pay, as part of the consideration for the real estate so conveyed to him, the one-half of said mortgage and the one-half of the purchase-money notes to Parkinson secured thereby. There was evidence from which it might have been found that the sum of $6,000 of this balance of purchase

money was paid in equal portions by the parties, and that the remainder thereof was paid by the appellant, who also paid the taxes on the two tracts while he continued to occupy and use the appellee's quarter section, and also paid the greater portion of the interest as it accrued upon the unpaid part of the purchase money; that the appellee paid a small portion of the interest, and furnished to the appellant personally certain definite sums of money. After the land had been thus fully paid for, the appellant, who for eight years had resided with his family in a dwelling upon his own quarter section, using the other quarter section as a part of his farm, ceased to hold and use the quarter section so owned by the appellee, which thereupon was taken by its owner, who proceeded to erect a dwelling house thereon, and thereafter this land was occupied and used by another son-in-law of the latter. At this time some portion of the animals and implements of those so furnished by the appellee were retaken by him.

This was a suit for an accounting and for the recovery of any balance found due the appellee, there being a counterclaim filed by the appellant. The court found there was due to the appellee from the appellant $678, and that the latter should account to the former for that sum, and that such sum due. the appellee from the appellant was wholly unpaid. As part of the finding, it was stated: "The court does not take into account any indebtedness that may be owing by the partnership, and does not decide any question concerning the same.” This statement in the finding furnishes the subject of the contention here. It is true, as suggested on behalf of the appellant, that one partner cannot maintain a suit against his copartner to recover an alleged indebtedness of the latter to the former growing out of the partnership transactions, until the affairs of the partnership are closed up and its debts are paid. Briggs v. Daugherty, 48 Ind. 247; Lang v. Oppenheim, 96 Ind. 47; Powell v. Bennett, 131 Ind. 465, 30 N. E. 513. A court will not ordinarily entertain matters relating to partnership accounts between partners, until by its judgment or decree a final adjustment of the partnership business can be effected. Thompson v. Lowe, 111 Ind. 272, 12 N. E. 476. One partner may maintain an action to compel an accounting and to recover such sum as may be found due bim upon the final adjustment of the partnership affairs, and if necessary for the accomplishment of such result a receiver may be appointed; but in such an action there cannot be a recovery in favor of one partner against the other upon a partial adjustment of the affairs of the partnership which leaves some of the partnership debts unpaid. See Meredith v. Ewing, 85 Ind. 410; Miller v. Rapp, 135 Ind. 614, 34 N. E. 981, 35 N. E. 693; Adams V. Shewalter, 139 Ind. 178, 38 N. E. 607.

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It is very difficult to ascertain from the record before us any definite terms or understanding of the parties upon which the land of the appellee was held and used by the appellant. The evidence in this respect is obscure and somewhat contradictory. The parties appear therefrom to have been ignorant and unmethodical, and their intentions are indicated by their conduct more than by any expressions to each other shown in evidence. Perhaps their relationship and the fact that the daughter and grandchildren of the appellee were members of the appellant's family residing on the land contributed to the indefiniteness of the dealings of the parties with each other. A dwelling house and some farm buildings were on the eastern quarter section, which in the voluntary partition was conveyed to the appellant, and he and his family resided there from the beginning of their occupancy; and it appears to have been agreed that, whenever the appellee should determine to build a residence on his own quarter section, the appellant should pay the appellee one-half the value of those improvements upon the land so owned originally by the parties as tenants in common; also, that the appellant and his family should have the right to consume and appropriate to their own use so much of the produce of the land as might be needed for their subsistence, without any obligation to account therefor to the appellee; also, that the land originally held in co-tenancy should be divided equally, each party owning in severalty one quarter section and paying the original grantor therefor one-half of the purchase price of the whole half section; also, that the appellant should occupy and cultivate all the land and himself own its products and dispose thereof at his pleasure, and after providing for his family out of such products, should apply the remaining surplus of the net income of the farm to the payment of the taxes thereon, including the taxes on the appellee's quarter section, and to the payment of the accruing interest upon the unpaid purchase money, for the payment of one-half of which as between themselves each was bound to the other, and also to the payment of unpaid principal; and that when the appellee should take over the possession and use of his separate portion of the land, the animals and utensils furnished by him should be restored to his possession. Whatever surplus of the net income was thus applied in payment of principal, interest, and taxes was used for the equal benefit of each of the parties, and its payment in that manner amounted to an equal division of such surplus, which perhaps can scarcely be called the net profits of a business, especially in view of the use of an indefinite and varying portion of the income in the support of the appellant and his family. It seems to have been the intention of the parties that the appellee was entitled to have the one-half of such surplus applied to his benefit as compensation for the use of his

portion of the land and of the use and enjoyment for the time being of his personal property, which continued to be owned by him individually. It seems to have been contemplated that such personal property should be returned or accounted for, and that the onehalf of the value of the improvements on appellant's quarter section should be accounted for, and that one-half of any net surplus of income not paid out for the benefit of both parties as purchase money, interest, and taxes should be accounted for, and that any sums of money furnished by the appellee to the appellant at the special instance and request of the latter for his individual uses should be repaid or accounted for. While the word "partnership" was used somewhat frequently in the court below, especially on the part of the appellant, the relation of the parties to each other does not seem to be properly so characterized. Some of the appellee's demands were based upon his right to a portion of the surplus of the income of the farm; yet such portion was due him as compensation for the use and enjoyment of his property, rather than as a share of the net profits of the business of a partnership.

The indebtedness referred to in the finding was evidenced by two certain promissory notes, one dated December 23, 1899, for $500, signed by the appellant and by the appellee, and one dated August 20, 1900, for $1,000, signed by the appellant and his wife and by the appellee. These notes were payable to the appellant's father, and were given, the first for $500 borrowed by the appellant from his father at its date, and the second for $500 so borrowed at its date, and also in lieu of a note of the appellant alone, theretofore given, for $500 previously borrowed by him of his father. The loans were made to the appellant individually. The notes were not signed in a firm name. There was no firm name, and there does not appear to have been any authority in either party to sign his own name as a firm name, or for or on behalf of both of the parties, or any intention to do so. Each signed as an individual, as and for himself alone. Each note was signed by the appellee some time after its execution, and, so far as appears in this case, without consideration. The money for which the notes were given did not become the property of the appellee, and he does not appear to have had any control over its disposition, and he testified that he did not know how it was used. It was owned and controlled by the appellant alone, who used it for various purposes, paying some of it upon the principal mortgage debt, some for interest thereon, some for taxes, some for cattle purchased by him alone, and some for wages of men who worked on the farm. Some payments were made by the appellant to his father upon this indebtedness with money derived from profits from the land. If he used any part of this, his own money, for the benefit of the appellee, and not wholly for payment of his own por

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