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ment which we have before us is the one man, who on the same day, without consider- . calling in question the ruling of the court in ation, reconveyed it to Henry and his wife. denying the motion for a new trial. But That on April 27, 1903, and continuously we cannot review any of the alleged errors afterwards, Henry was and remained a resiassigned as ground for a new trial in this dent householder of Elkhart county, Ind., and motion, because the latter is not properly in had no property, other than said real estate, the record. Instead of being copied and subject to execution. That at the date of inserted in the transcript as a part of the said conveyances, Milo Stark owned properstatutory record, which it is, this motion ty of the value of $2,682, and was indebted appears and is set out in a bill of exceptions. to the amount of $550; but on September 11, This procedure is not authorized, and the 1903, he was insolvent and subsequently admotion for a new trial therefore cannot be judged a bankrupt, and duly discharged in regarded as a part of the record. Wurfel bankruptcy. That said conveyances were V. State (No. 20,807, at this term) 78 N. E. made to protect said Abbie N. Stark in the 635, and authorities there cited; Thompson possession and use of the whole of said real V. Thompson, 156 Ind. 276, 59 N. E. 845; estate, and with intent to defeat and defraud Cooney V. American Ins. Co., 161 Ind. 193, the creditors of said Henry Stark. The 67 N. E. 989. In fact the record in this ap- second conclusion of law stated upon such peal in respect to its defects is on "all fours" facts is as follows: “That said conveyances with that of Wurfel v. State, supra, and from the defendants Henry Stark and Abbie under the ruling in that case the judgment N. Stark to David Lingman, and from said must be affirmed without considering any of David Lingman to the defendants, Henry the questions discussed by counsel for appel- Stark and Abbie N. Stark, are each fraudulant relative to the merits of the case. lent and void as against the plaintiff, and Judgment afirmed.

should be set aside."

It is alleged that the court erred in this

conclusion of law, and argued that, in the (167 Ind. 642)

absence of a finding that Milo Stark, as well STARK et al. v. LAMB et al. (No. 20,568.)1

as Henry, was insolvent at the time the (Supreme Court of Indiana. Oct. 10, 1906.) fraudulent conveyances were made, this conFRAUDULENT CONVEYANCES REMEDY AT

clusion cannot be sustained. It is a familiar LAW-JOINT DEBTORS.

principle that resort to a court of equity may Where one of two debtors executing a joint not be had, so long as an adequate legal note to plaintiff was solvent at that time, but afterwards became insolvent, plaintiff could

remedy exists. In the application of this come into equity to set aside a conveyance of

rule, it has been held by this court, that, so land by the other debtor; the rule that equity long as a legal remedy exists against one or would not extend relief to set aside a conveyance

more joint debtors, equity will not extend of one joint debtor so long as a remedy existed against another debtor not applying.

its relief and set aside a fraudulent convey.

ance of another of such debtors at the inAppeal from Circuit Court, Elkhart Coun

stance of the common creditor. Eller et al. ty; Jas. S. Dodge, Judge.

V. Lacy, 137 Ind. 436, 36 N. E. 1088. See Bill by Ellington C. Lamb against Henry

also, Geiser Mfg. Co. v. Lee et al., 33 Ind. Stark and another. From a decree for plain

App. 38, 66 N. E. 701. It is specifically found tiff, defendants appealed to the Court of

that Henry Stark was insolvent at the time Appeals. Case transferred to the Supreme

of making the conveyances attacked, and at Court under provisions of section 1337u,

all times since, and that the deeds were withBurn's Ann. St. 1901. Affirmed.

out consideration and made with fraudulent Harman & Zigler, for appellant. Perry L. intent. Milo Stark was solvent at the time Turner, for appellee.

the deeds were made, but became insolvent

a few months afterwards, and was subseMONTGOMERY, J. Appellee brought this quently adjudged a bankrupt and discharged action to collect a promissory note executed from his financial obligations. It is thereby Milo W. and Henry Stark, and to set fore plain that appellee must collect his debt aside, as fraudulent, certain conveyances of from the real estate in controversy, or lose real estate. Milo Stark was adjudged a it. The circumstance that Milo Stark was bankrupt pending the litigation, and the ac- solvent at the time the fraudulent convey. tion dismissed as to him. Appellants an. ances were made, does not make them any swered by general denial, and, at their re- the less fraudulent, and the rule forbidding quest, the court made a special finding of a premature resort to equity was not intendfacts, in substance as follows: That Milo ed to take away a right of action and deny a and Henry Stark executed the note August salutary remedy, but merely to limit their 19, 1901, which now amounts to $223, and at exercise to cases of actual necessity, and the date of the note Henry owned real estate thereby prevent unnecessary litigation. No as described, and Abbie N. Stark was his substantial reason is shown why appellee wife. That Henry continued to own the should not avail himself of the remedy real estate until April 27, 1903, when he and sought in this action, but, on the contrary, it his wife conveyed the same to David Ling- is entirely clear that, without equitable in

1 Rehearing denied, 79 N. E. 895.

terference, he would be wholly without re- 5313, Louisville, etc., Co. v. Quade, 101 Ind. lief.

364, and other cases. We cannot admit the The conclusion of law is supported by the premises on which this claim is founded. facts found, and the judgment is affirmed. The court finds that “while on said track at

said time one of said animals was killed and the other badly injured by being struck

by the engine drawing a train over said CHICAGO, I. & L. RY. CO. v. RAMSEY. ,

track, consisting of a locomotive engine, two (No. 5,766.)1

flat cars, and caboose, running upgrade 25 or (Appellate Court of Indiana, Division No. 2. 30 miles per hour; that said animal injured Oct. 2, 1906.)

was afterwards killed on account of the se1. ACTION-SINGLE AND ENTIRE CAUSE OF verity of its injuries, and it was of no value ACTION.

to the plaintiff. The court finds that said Where two steers belonging to plaintiff were struck by the same loconiotive, within

animals were not struck at the same time, the time that it took the locomotive to run 200 but were separate and apart from one anfeet, going at the rate of 25 or 30 miles an other when struck, and were struck at difhour, and when the locomotive struck the second steer the first was being dragged by it, there was

ferent times; the first one being struck and one cause of action for the killing of the steers.

dragged about 200 feet, when the second was 2. RAILROADS-INJURIES TO ANIMALS ON struck, knocked from the track, after which TRACK-PRIVATE CROSSINGS.

said train ran about 200 feet and stopped.” Burns' Ann. St. 1901, § 5321, provides

It appears from these findings that the steers that, when a railroad is fenced where a private way is constructed across the tracks, the owner

were struck while upon the same track by shall maintain gates and keep them securely the same locomotive, within the time it took locked; and section 5322 provides that, if to run 200 feet, going at the rate of 25 or animals are injured on the track of a rail.

30 miles per hour (a few seconds of time). road, it shall not be liable in damages if the animals entered on the track through gates

When the locomotive struck the second steer, at a private way. Held, that where plaintiff's the first was being dragged by it. The acts animals entered on a right of way at a point

of striking and dragging the first and striking where the road had failed to maintain a fence, though it should have done so, and from there

the second were continuous and practically went across the lands of another and again

simultaneous. The facts specially found apupon the right of way through a private gate, plicable to the first paragraph of the comthe statutes did not relieve the road from lia

plaint may be briefly stated as follows: Apbility. [Ed. Note.--For cases in point, see vol. 41,

pellant was the owner of 13 steers, kept in Cent. Dig. Railroads, $$ 1459-1473.]

an inclosed pasture, surrounded by a rail

fence seven or eight rails high, in good repair, Appeal from Circuit Court, Monroe Coun

and sufficient to turn stock. On the 1st day ty; Jas. B. Wilson, Judge.

of May, 1904, they escaped from said pasture Action by John Ramsey against the Chica

without plaintiff's fault or knowledge, and he go, Indianapolis & Louisville Railway Com

did not know that they had escaped until he pany. From a judgment in favor of plain

was informed on the morning of the 2d of tiff, defendant appeals. Affirmed.

May that two of said steers had been killed E. C. Field, H. R. Knrrie, and J. E. Hen- by defendant company; that after said steers ley, for appellant. East & East, for appellee. left plaintiff's pasture they entered upon de

fendant's right of way and railroad track at COMSTOCK, P. J. Action against appel- a point near said pasture, where the defendlant for killing two steers, the property of ant had failed to construct and maintain a appellee. The complaint was in two para- fence, and where it could and should have graphs, the first stating the cause of action fenced, but had allowed its right of way and under the statute, alleging that the steers railroad track to be and remain unfenced, went upon the railroad track at a point and without sufficient fencing to prevent said where the railroad might have been but was steers from entering said right of way; and not securely fenced. The second was predi-by reason of failure to so fence said right of

. . cated upon the alleged negligence of appel- way, said steers entered upon defendant's lant's servants in the management and opera- track. From there the said cattle passed tion of its train. A demurrer to each para- along the line of Clear creek, a natural water graph of the complaint was overruled, the course, which flows along at said place.

was put åt issue by general denial, They passed under a bridge constructed by there was a special finding of facts, conclu- defendant over said creek, from the east side sions of law stated, and judgment rendered of the main track to the west side, and conthereon in favor of appellee for $90.

tinuing said course some distance west to the Appellant's first proposition is that the defendant's right of way over the lands of trial court did not have jurisdiction over the others, including the land of plaintiff, until subject-matter of the action; that as each they had passed down upon the lands of one animal was of the value of $45, and as they Ketcham, which lay south of plaintiff's land were killed at different times, there were two and west of said main track and over separate causes of action, each of which was the lands of said Ketcham. They passed within the exclusive jurisdiction of a justice through a gate at a private crossing, put in of the peace-citing Burns' Ann. St. 1901, $ a right of way fence for the use and benefit

* Rehearing denied, 79 N. E. 1065. Transferred to Supreme Court, 81 N. E. 79.

issue of negligence formed on the second paragraph of the complaint, and it is not necessary to consider them.

Judgment affirmed.

of said Ketcham, onto the right of way and track of defendant, and were killed.

Appellant contends that the effect of sections 5321, 5322, Burns' Ann. St. 1901, is to relieve the railroad company from liability for damages on account of stock which entered the right of way at private crossings, and that, the steers having entered appellant's right of way from a private crossing, it is not liable under the statute. In Elliott on Railroads, $ 1200, it is stated: “Where gates are left open by the adjoining owner, for whose benefit they were erected, or by his servants, the company is not liable to him; but, if the animals belong to a third person, the company may be liable, notwithstanding the gates were left open by the adjoining owner." "The condition of the fence at the actual place of entry is the test for determining the company's liability." Ellictt, supra, $ 1201. Indpls., etc., R. R. Co. v. Quick, 109 Ind. 295, 9 N. E. 789, 925; Toledo, etc., R. R. Co. v. Howell, 38 Ind. 447; Jeffersonville, etc., Co. v. Lyon, 72 Ind. 107. In Wabash R. R. Co. v. Williamson, 104 Ind. 155, 3 N. E. 814, the rule is thus stated: “As to Pettit (the landowner for whose benefit gates had been erected at the private crossing), therefore, the railway track must be considered as having been securely fenced at that point. As to all other persons, however, a different rule has been, and must continue to be, applied. As to all such other persons, the railway company was required, at its peril, to keep the gates closed.” In support of the proposition that exemption from liability is good as against third parties, as well as against the landowner for whose benefit the crossing is maintained, the appellant cites Crim v. Conover et al. facts are not analogous to the facts before us, and it is distinguished from the case at bar as are also the other cases cited by appellant. In L., N. A., etc., R. R. Co. v. Etzler, 3 Ind. App. 562, 30 N. E. 32, many cases are collected and the rule stated to be: "The question concerning a sufficient fence always relates to the place of entry, not to the place of the killing or injuring, if it be other than the place of entry." "If, having entered at a place where the company, being bound to fence, has not done so, the animal wanders or is driven by an engine along the track to another place thereon, and is there struck and injured by the engine, the company is liable, whether or not the place at which the injury is done be one at which the company is bound to fence, and whether or not that place be in fact fenced, and though in passing to that place from the place of entry the animal may have passed over a place at which the company was not bound to fence, as a public highway." The facts found by the court sustain the first paragraph of the complaint, and authorize the conclusions of law in favor of appellee.

The other questions discussed relate to the

(38 Ind. A. 574) LAKE ERIE & W. R. CO. v. HENNESSEY.

(No. 5,519.) (Appellate Court of Indiana, Division No. 1.

Oct. 5, 1906.) RAILROADS-INJURIES TO PERSON NEAR CARS -COMPLAINT-SUFFICIENCY.

In an action for personal injuries, the complaint alleged that plaintiff was employed by à railroad as a car inspector, it being his duty to inspect cars placed on a transfer track by defendant railroad before the cars were received by plaintiff's employer; that at a certain time defendant placed several cars on the transfer track, whereupon plaintiff closed the switch, and that at that time defendant had no other cars that it had any intention or purpose or right to set on the track; that plaintiff proceeded to inspect the cars, knowing that defendant had no other cars to set out on the track that day; and that while plaintiff was under the cars defendant negligently ran a car toward the switch and opened it, so that there was a collision, whereby plaintiff was injured. Held, that the complaint was demurrable on the ground that it did not show that defendant violated any duty it owed plaintiff at the time of the injury; it not appearing that there was any time when cars might not be transferred, and it not appearing that defendant's servants knew that plaintiff was a car inspector, or even that he was about the premises.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Action by Alexander Hennessey against the Lake Erie & Western Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jno. B. Cockrum and Gregory, Silverburg & Lotz, for appellant. Thompson & Thompson, C. A. McGonagel, and J. M. Fitch, for appellee.

ROBINSON, C. J. Suit for damages for personal injuries. Complaint in one para

. graph; demurrer overruled ; answer, general denial; trial; verdict for

verdict for appellee, with answers to interrogatories; appellant's motion for judgment on the answers, and its motion for a new trial, overruled. Judgment on the verdict. The rulings on the demurrer, and on the motions for judgment and a new trial, are assigned as error.

The complaint avers that a transfer track connected the Y track operated by appellant and the track of the Chicago, Indiana & Eastern Railroad Company; that the transfer track was owned exclusively by the last-named road, and that after the construction of the transfer track it was used continuously for the transfer of cars and trains from one road to the other; that cars transferred remained upon the transfer track until the receiving party should have time to and did inspect the same before

taken away; that each of the companies notice or knowledge of the opening of the knew that all such transferred cars were so switch or of the approach of the coal car, inspected; that on September 17, 1903, ap- and that from the position he occupied under pellee was in the employ of the Chicago, the car inspecting the same he could not Indiana & Eastern Company as a watch- see the approach of the car until it had man and a car inspector, that as such car struck the car upon which he then was; and inspector it was his duty to examine all cars that when the coal car struck the cars under set upon the transfer track by appellant to which he was he was unable to extricate be received and shipped by the Chicago himself before he was hurt. road, and that it was his duty to make such Taking together all the averments of the inspection each day before 6 o'clock p. m. complaint as to the uses made of the transof the day the cars were placed upon such fer track, it must be concluded that the track; that in the proper discharge of his pleading does not show that appellant had duties he was required to and did go and for no right to use the transfer track at the a time remain under the cars so inspected ; tine it did. Whether appellant had no purthat on the above date, at half past 5 o'- pose nor intention to put any more cars on clock p. m. appellant placed upon the trans- the track is not material, as it is not shown fer track four freight cars, three of which that appellee knew such purpose or intenwere loaded and one empty, which were to tion and acted thereon. The car was placed be received and shipped by the Chicago on the transfer track about half past 5 road; that immediately after the cars were o'clock in the afternoon, and it must be held placed on the track appellant closed the that the pleading shows that appellant had switch, so that no other cars could be placed a right to place it on the transfer track at on the transfer track until the switch should the time it did. The pleading does not show be first opened ; that after the four cars had that there was any time in the day during been placed on the transfer track by appel- which cars should be transferred, and the lant it had no other cars "at said time that presumption, as against the pleader, is that it (the said defendant company) had any in- the transfer might be made at any time, tention or purpose or right to set upon said and that the coal car was placed on the track”; that thereupon, appellee, in the dis- transfer track at a time when it was proper charge of his duty as such car inspector, to do so. As far as disclosed, appellant's proceeded to inspect such cars; that he employés did not know that appellee was knew appellant had no other car or cars to car inspector, or that he was there at the put on the transfer track during that day, time to inspect cars, or that he was about and that the switch was closed; that when the premises. In view of the particular he went under the cars to inspect the same facts averred, the averment that appellant a heavily loaded coal car was standing on had no right to put a car on the transfer appellant's track, which had been trans- track at the time it placed the coal car ferred to appellant by the Chicago road to thereon is no more than a conclusion. Morebe by appellant delivered to the consignee; over, it appears that when the four cars had that at the time appellant received the car been placed on the transfer track appellee the brakes on the same were out of repair, began immediately

began immediately to inspect them, and but in what respect appellee was not inform- while under the cars (how long after the four ed; that while appellee was under the cars, cars had been transferred does not appear) inspecting the same, appellant carelessly and the coal car was thrown against the cars negligently ran the coal car north at the he was inspecting. Even if the company did rate of 20 miles an hour, and negligently not, at the time appellee began inspecting failed to repair the brakes, and negligently the cars, have “any intention” of placing omitted to provide any means for stopping other cars on the transfer track, it is not the car, and when the car approached the averred that appellee knew of such intenswitch at the south end of the transfer tion and was relying on it. It does not aptrack, and while the car was still running pear that appellee made any inquiry to asat such high speed, appellant carelessly and certain whether appellant was going to use negligently opened the switch and ran the the transfer track after placing the four car on the transfer track and against the cars thereon. He knew the coal car was cars appellee was inspecting, and negligent- on a track near the transfer track, and that ly failed to give appellee any warning that it was at a time when other cars could the car was approaching, or of any danger; rightfully be placed on the transfer track, that when the car struck the cars appellee and that there was nothing to prevent the was inspecting, and under which he then placing of a car on that track at any time. was, the cars were started, striking appel- He made no inquiries about the switching lee and injuring him; that he went under of any other cars, was not misled by anythe cars for the purpose of inspecting the thing that was said, and took no precautions same; that he did not know appellant had whatever to let his presence under the car or would open the switch and throw the be known. We think the pleading fails to coal car upon that track; that he had no show that appellant violated any duty it

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owed to appellee at the time the injury was 7. SAME-INSTRUCTIONS. inflicted. The demurrer to the complaint In an action to recover a penalty for dis

crimination in the transmission of a message, should have been sustained.

an instruction that if the evidence failed to Judgment reversed.

show that plaintiff's message was set aside, and other messages from the sending office to the destination, which were

were received after (38 Ind. A. 578)

plaintiff's message, were forwarded or delivered WESTERN UNION TELEGRAPH CO. V.

before it, then the verdict should be for deMCCLELLAND. (No. 5,729.)

fendant, was erroneous and properly refused.

8. EVIDENCE PRESUMPTIONS FAILURE TO (Appellate Court of Indiana, Division No. 2. PRODUCE. Oct. 5, 1906.)

If a party to a civil or criminal case has 1. TELEGRAPHS DISCRIMINATION ACTION

evidence peculiarly within his own knowledge, FOR PENALTY-COMPLAINT.

and does not produce it, it is presumed that, Where, in an action against a telegraph

if produced, its effect would be detrimental to

him. company to recover a statutory penalty for discrimination, etc., in the transmission and

[Ed. Note.

For cases in point, see vol. 20, delivery of a message, the complaint averred Cent. Dig. Evidence, $ 95; vol. 14, Cent. Dig. that defendant acted in bad faith, and was

Criminal Law, $ 732.] guilty of negligence and discrimination against

Appeal from Circuit Court, Hendricks plaintiff, and neglected to transmit and deliver the message in the order of time in which the County; Thos. J. Cofer, Judge. same was received, and postponed the transmis- Action by Charles F. McClelland against sion and delivery of the message out of its order, the Western Union Telegraph Company. etc., the complaint was not objectionable for failure to allege an omission to transmit the

From a judgment for plaintiff, defendant apmessage in the order of time in which it was peals. Affirmed. received with reference to the receipt and transmission of other messages handled by defendant

Chambers, Pickens, Moores & Davidson, at the same office.

Owen Pickens, 0. E. Gulley, and G. H. 2. SAME-INCONSISTENT THEORIES.

Fearons, for appellant. T. S. Adams and Burns' Ann. St. 1901, $$ 5511, 5512, pro- Brill & Harvey, for appellee. vide a penalty recoverable against a telegraph company for discrimination and partiality in WILEY, J. Action by appellee to recover the transmission and delivery of messages, etc. Held that, where a complaint to recover a pen.

the statutory penalty for failure to transmit alty under such section alleged a violation of

a telegraph message delivered to it. The the telegraph company's duties imposed by the complaint, which is in a single paragraph, statute, the complaint was not objectionable as

was held good as against a demurrer. proceeding on inconsistent theories, because it alleged that defendant was guilty of willful

swer in denial, trial by jury, verdict, and ness, discrimination, and negligence in the trans- judgment in favor of appellee for $100. mission of plaintiff's message.

Two questions are presented and discussed: 3. PLEADING-DUPLICITY-REMEDY.

First, that the complaint is insufficient; and, Where a complaint is bad for duplicity,

second, that the motion for a new trial was the remedy is either by a motion to strike out or to separate the causes of action into para

improperly overruled, graphs.

The complaint avers that appellee was [Ed. Note.--For cases in point, see vol. 39, a funeral director, and had been engaged to Cent. Dig. Pleading, $$ 1108, 1194.]

meet a party in Indianapolis from Asheville, 4. TELEGRAPIIS DISCRIMINATION OVER- N. C., take charge of a corpse, accompany it CHARGE-PENALTIES. Where plaintiff was charged an excessive

by train to Danville, Ind., where appellee rate for the transmission and delivery of a

resided, and had his place of business, and message by a telegraph company, the latter convey the corpse to the home of the father was liable for a penalty for discrimination

of the deceased. It is a verred that appelimposed by Burns' Ann. St. 1901, $S 5511, 5512.

lant owned and operated a telegraph line [Ed. Note.--For cases in_point, see vol. 45,

between Indianapolis and Danville, and was Cent. Dig. Telegraphs and Telephones, $ 21.] engaged, for hire, in receiving and transmit5. SAME-BURDEN OF PROOF.

ting by wire telegraph messages; that at Where there was an unreasonable delay both of said places appellant maintained pubin the transmission of an urgent message, the lic offices and places of business, for reburden was on the telegraph company, in an action to recover a penalty imposed for dis

ceiving and transmitting messages; that apcrimination by Burns Ann. St. 1901, $$ 5511, pellee had been requested and engaged to 5512, to show that other messages for the point accompany said corpse from Indianapolis to to which plaintiff's message was directed were

Danville on what was known as train “No. received at defendant's sending office and forwarded before the one sent by plaintiff.

43" on the “Big Four Railroad,” which was [Ed. Note.-For cases in point, see vol. 45,

scheduled to arrive at the latter place shortCent. Dig. Telegraphs and Telephones, 8 61.) ly after midnight; that he had arranged to 6. SAME-UNREASONABLE DELAY.

have all necessary conveyances at the staWhere it was admitted that a message tion on the arrival of the train to convey would be received at destination almost in

the funeral party to the residence of the stantly from the time it was put on the wires at the sending office, and the urgency of the

deceased's father; that just before the time message not only appeared on its face, but the for said train to leave for Danville he was agent at the sending office was advised of that notified that, on account of "washouts" on fact, a delay of two hours in transmission

said railroad, trains could not run on it, and was unreasonable, [Ed. Note. For cases in point, see vol. 45,

that it would be necessary to transfer said Cent. Dig. Telegraphs and Telephones, 8 33.j funeral party to the Vandalia train to be

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