assessed by the local authorities. Section 6366. It is claimed by counsel for appellant that railroad companies cannot hold real estate other than such as is described in the complaint, and such as may be occupied by the main track, and that hence the real estate other than "railroad track," mentioned in the above section, must be such as that described in the complaint. In all this we think counsel are mistaken. Railroad companies may acquire and hold land other than that occupied by their tracks. Rev. St. 1881, §§ 3900, 3901; Toledo & W. R. Co. v. City of La Fayette, supra.

In the answer to appellee's complaint it is alleged that, in fixing the values, the state board of equalization took into consideration only the tracks, and did not consider the value of the lots and lands, and the buildings thereon, and that the local authorities valued and assessed these. It is claimed that, because of the alleged omission on the part of the state board, the local authorities had the right to make the valuation and assessment; and that, if they had not, the appellee cannot succeed in this action without first paying, or offering to pay, the taxes due. The difficulty with the contention is that, so far as shown, appellee had paid all taxes that, in any legal sense, were due. The authority to value and assess the lots and lands which constitute a part of the right of way or "railroad track" was and is with the state board of equalization alone. The local authorities have no power to value and assess such property, and any valuation or assessment that they may attempt is utterly void. The railroad company can owe no taxes upon such property, except such as may be extended upon the valuation fixed by the state board. It is to be presumed that the state board will do its duty, and value the whole of the right of way, including the land, the tracks, and superstructures, as it is alleged in the complaint was done; but if it should fall short of its duty, as alleged in the answer, the local authorities have no power to do what that board under the law is alone authorized to do.

The city further relies upon a section in the general act for the incorporation of cities. Section 3156, Rev. St. 1881. That section is an amendment of section 58 of the act of 1867, and was passed and approved on the seventh day of March, 1873. So far as material here, the amended section provides that cities, through or into which a railroad may pass, may assess any railroad building, fixtures, and machinery connected therewith, within the city limits, on the same basis, and in the same manner, that like property of natural persons is assessed, and collect the taxes thereon as other taxes are collected. Whatever might have been said as to the authority of cities under that section, in the absence of other legislation, to value and assess buildings situated upon the right of way of a railroad company, it is clear that, under subsequent legislation, such authority does not exist. In 1875 an act was passed providing that thereafter the general laws of the state for the assessment of taxes should apply to all incorporated cities not having special charters, so far as the same should be applicable. Acts Reg. Sess. 1875, p. 149; Rev. St. 1881, § 3263. As to the assessment and taxation of railroad property, there is no difficulty in applying to cities the general laws of the state for the assessment of taxes; and the result of such an application is that the city authorities must take the valuation of the right of way of railroad companies from the state board of equalization, and have no more authority to value and assess buildings on such right of way than have the county authorities. Such authority does not exist with either.

In overruling appellants' demurrer to the complaint, and in sustaining appellee's demurrer to the answer, the court below ruled in accordance with this opinion.

The judgment is therefore affirmed, at appellants' costs.

(108 Ind. 235)

QUILL and others v. GALLIVAN.

(Supreme Court of Indiana. November 17, 1886.)

1. APPEAL OBJECTION TO COMPLAINT BY PARTIES BROUGHT IN BY THE DEFENDANT. Where a complaint is good as against the defendants against whom it was originally filed, it cannot be successfully assailed for the first time in the assignment of errors by parties brought into the case on the application of the original defendants. 2. MORTGAGE-FORECLOSURE-SETTLEMENT OF ALL CLAIMS.

Where, in a suit to foreclose a mortgage, all the parties are properly before the court upon the complaint and cross-complaint, the court may adjust and settle the claims and equities of all of the parties.

3. APPEAL OBJECTIONS TO DECREE, WHEN AVAILABLE-BILL OF EXCEPTIONS.

In order to make objections to a decree available in the supreme court there must be a motion to modify in the trial court, and the objections must be presented by a bill of exceptions.

4. COURTS-FAILURE TO RENDER DECISION WITHIN SIXTY DAYS.

The failure of the court to make a decision within 60 days after the conclusion of the trial cannot prejudice the parties.

5. APPEAL-PRESUMPTION AS TO FACTS NOT FOUND.

If a fact is not stated in the special findings, it is presumed, as against the party having the burden of the issue, not to have been proved.

6. SAME-HARMLESS ERROR.

Where the same facts can be proved under a cross-complaint as under an answer, the error in sustaining a demurrer to the answer is a harmless one.

Appeal from Wells circuit court.

Martin & Martin, for appellants. Dailey, Mock & Simmons, for appellee.

ELLIOTT, J. The complaint of the appellee is for the recovery of real estate, and is against two of the appellants, Michael and Ellen Quill. The complaint is undoubtedly good as against the defendants named in it, and an attack upon it in the assignment of errors, by parties subsequently brought into the case, cannot prevail. If a complaint is good as against the parties against whom it is directed, it cannot be successfully challenged for the first time in the assignment of errors made by parties brought into court on the application of one of the original defendants.

If the parties interested in the land are all properly in court, no matter whether brought in by the original complaint or by cross-complaint, the court may settle and adjudicate all conflicting claims and equities. The effect of our Code is to enable the court to settle the whole controversy by one decree, and this it may do when all the parties are before it.

If the appellants who were brought in after the complaint was filed by their co-appellants were not satisfied with the decree, they ought to have moved to modify it. Failing to do this, they cannot for the first time present the question in this court. Bayless v. Glenn, 72 Ind. 5, and cases cited; American Ins. Co. v. Gibson, 104 Ind. 336, see page 342; S. C. 3 N. E. Rep. 892. If, however, we were in error in this, it would avail these appellants nothing, because the rule is firmly settled that an objection to a judgment not exhibited by a bill of exceptions is unavailing. Adams v. La Rose, 75 Ind. 471; Stelzer v. La Rose, 79 Ind. 435; Marquess v. La Baw, 82 Ind. 550; Pennsylvania Co. v. Niblack, 99 Ind. 149; Forsythe v. Kreuter, 100 Ind. 27. It is not improper to add that we are satisfied, from an examination of the whole record, that there is in reality no money judgment against any of the appellants except Michael and Ellen Quill, so that the whole argument of the other appellants is foundationless. It is evident to our minds that the word "defendants," as used, only refers to those defendants we have just named.

The fact that the court did not make its finding within 60 days after the conclusion of the trial does not prejudice the rights of the parties. Jones v. Swift, 94 Ind. 516; Martin v. Pifer, 96 Ind. 245; Smith v. Uhler, 99 Ind. 140.

It is now well settled that facts not stated in a special finding are here treated as not proved, and the finding is not vitiated by the failure to find upon all the facts embraced within the issues. If a fact is not found, it is deemed, as against the party having the burden, not to have been proved, and his remedy is by a motion for a new trial. Glantz v. City of South Bend, 106 Ind. 305; S. C. 6 N. E. Rep. 632; Quick v. Brenner, 101 Ind. 230; Talburt v. Berkshire, etc., Co., 80 Ind. 434; Ex parte Walls, 73 Ind. 95; Vannoy v. Duprez, 72 Ind. 26; Martin v. Cauble, Id. 67; Stropes v. Board, Id. 42; Graham v. State, 66 Ind. 386.

No substantial error was committed in sustaining the appellee's demurrer to the first paragraph of Michael Quill's cross-complaint, for the second paragraph secured him all the benefit he would have been entitled to if both had been left standing, as the same evidence was admissible under the second paragraph. Luntz v. Greve, 102 Ind. 173.

Judgment affirmed.

(108 Ind. 262)

CLAYBAUGH and others v. BALTIMORE & O. Ry. Co. and others.

(Supreme Court of Indiana. November 18, 1886.)

1. DRAINS AND SEWERS-INDIANA ACT OF 1885.

Pending drainage proceedings were not affected by the Indiana act of 1885, but might be carried on under the act under thich whey were begun.

2. SAME-COMMISSIONERS' REPORT.

The report of the drainage commissioners must be made at the time fixed by the court, unless the time is extended.

Appeal from Marshall circuit court.

A. C. Capron, for appellants. M. A. O. & 0. M. Packard, and H. Newbegin, for appellees.

ELLIOTT, J. In September, 1884, the appellants, proceeding under the drainage acts of 1881 and 1883, filed a petition for the establishment of a drain. On the tenth of November, 1884, the appellees filed a demurrer to the petition, which was subsequently overruled, and an order was entered requiring the drainage commissioners to report on the third Thursday of the December term, 1884. No report was then filed, but on the twelfth day of March, 1885, the commissioners came into court, made a showing as to their failure to report at the time designated, and asked that another time be fixed. Their request was granted, and the time for filing a report was fixed for June 6, 1885. Before that date one of the drainage commissioners resigned, and on the sixth day of April, 1885, the legislature so changed the law as to require the board of county commissioners to fill vacancies at a regular or special session. Acts 1885, p. 139. It is, however, provided in the same act "that where application has been made, or proceedings are pending, or works for the purpose of drainage are in course of construction, under said acts, the same may be carried on and completed, and assessments therefor collected according to the provisions of said acts, and shall not be affected by this act." On the twenty-fourth day of June, 1885, nineteen days after the time fixed for making the report, the commissioners came into court, and asked further extension of time. The court refused to grant this request, and, on the motion of the appellees, dismissed the proceedings.

The case is not affected by the act of 1885, for, by the provisions of that act quoted by us, the proceedings might have been carried on under the acts previously adopted. No rights were taken from the petitioners by the act of 1885, for these were expressly saved.

There was no error in dismissing the petition.

This is expressly decided in Munson v. Blake, 101 Ind. 78, where it was said: "No order was made at any time by the court extending or changing the time so designated. Commissioners of drainage cannot, under this statute,

violate or ignore the order of the court fixing the time for the filing of their report, and present a report when it suits their pleasure or convenience. To permit them to do so, would.render the statute subject to great abuses. It would in many cases result in requiring the constant attendance in court of persons desiring to remonstrate against the report, and ceaseless vigilance on their part to avert action thereon in their absence. No such inconvenience or perils should be imposed upon them, and none will be imposed if the provision of the statute is, as it must be, complied with." If the drainage commissioners do not report at the time designated, it may be that the petitioners could avert a dismissal by appearing at that time, and asking an order against the commissioners; but, however this may be, they cannot subsequently come into court, and, as of right, obtain such an order. The reasoning of the court in Munson v. Blake forcibly applies here, and conclusively shows that if no report is made at the time designated, and no action is then taken, the defendants are not bound to constantly watch the proceedings, but may treat them as having been discontinued. Of course, they may waive the failure to report at the proper time; but there is no waiver where, as here, the objection was promptly made, nor was there any abuse of discretion by the court in refusing to grant further time. Judgment affirmed.

(108 Ind. 202)

ANDIS v. PERSONETT.

(Supreme Court of Indiana. November 16, 1886.)

1. PLEADING-COMPLAINT ON WRITTEN LEASE-SUFFICIENCY, on Demurrer.

A complaint by the lessee against the lessor upon a written lease is not bad, on demurrer, for failing to aver the time of execution ofa note that plaintiff was bound to execute under said lease, where the time limited for its execution under the lease (as construed by the court) had not expired when the complaint was filed, and the complaint alleges that plaintiff had executed such note.

2. CONTRACT-"APPROVED FREEHOLD SURETY" CONSTRUED.

Where one agrees to execute to another a note with "good and approved freehold surety," the latter cannot arbitrarily refuse the surety; it is sufficient if the surety be good freehold surety, worthy of approval.

3. APPEAL-ERRONEOUS INSTRUCTION-WHEN NO REVERSAL.

A judgment ought not to be reversed on account of an instruction abstractly erroneous, where the jury reach a right conclusion.

4. SAME-BILL OF EXCEPTIONS-WHEN PART OF RECORD.

Where a bill of exceptions is neither filed nor presented to the judge for his signature within the time allowed, it forms no part of the record, and cannot be considered on appeal to the supreme court.

Appeal from Hancock circuit court.

Action upon written lease.

J. L. Mason, J. H. Mason, and R. Williamson, for appellant. New & Jones, for appellee.

NIBLACK, J. On the eighteenth day of August, 1884, Morgan Andis and Amos M. Personett entered into the following agreement in writing: "This lease, made and entered into by and between Morgan Andis, of the first part, and Amos M. Personett, of the second part, witnesseth that the said Morgan Andis has this day leased and rented, and to farm let unto, said Personett, the farm on which the said Andis now resides, in Brandywine township, Hancock county, Indiana, containing about one hundred and fifty (150)

Said Personett is to have the possession of said farm at once, for the purpose of sowing wheat on the same this fall, and is to have full possession of all of said farm from the twenty-fifth day of December, 1884, until the twenty-fifth day of December, 1885. The clover that is now on said farm is not to be plowed up by said Personett, but is to be fenced off by said Andis in good order, so as the said Personett can pasture the same next summer;

and said Andis is to raise and repair the culvert across the pike near the graveyard, so that stock can pass under the same, back and forth, to water. Said Andis is to deliver the possession of said farm to said Personett on the twenty-fifth day of December, 1884, with dwelling-house and the fencing on said farm in good repair, and the same is to be kept in good repair, and delivered up to said Andis in good repair at the expiration of the said lease by the said Personett, natural wear and tear excepted; said Andis to repair the barn, to fix the flour and wheat bin and corn-crib in the same, and fix a way to feed stock from the upper floor of said barn to the lower floor of the same. Said Personett is to have the stalk-field pasture on said farm in the fall of 1884, and said Andis is to have the said stalk-field pasture on said farm in the fall of 1885. The said Personett is to have the right to pasture the stubble-field on said farm in the fall of 1885, in a reasonable manner, until the first day of September, 1885, that may be in clover, and the remainder, if any, as long as he sees fit; and said Personett is to have the right to use fire-wood, for his own use, as long as he occupies said farm as the tenant of said Andis, out of the waste or dead timber not fit for saw or rail timber. Said Personett is not to have the right to pasture the door-yard or orchard on said farm. The said Personett agrees to pay said Andis, as rent for said farm, the sum of five hundred dollars, and to execute his note for said amount, due on the twenty-fifth day of December, 1885, bearing interest at eight per cent. from the twenty-fifth day of December, 1884, with good and approved freehold surety. Should said Personett fail or refuse to perform the said contract in regard to the execution of said note he shall forfeit all of his right to the possession of said farm."

On the first day of October, 1884, Personett filed his complaint in the court below, founded upon the foregoing lease, in which he averred that he had executed a note to Andis for the sum of $500, with interest at the rate of 8 per cent., conformably in all respects to his agreement to execute a note in that sum, bearing date the sixth day of September, 1884, and procured one Daniel Snider to sign the same as surety thereon; that said Snider was at that time, and has since continued to be, the owner of real estate, in Hancock and Madison counties, in this state, of the value of $20,000, and free from every incumbrance whatever; that the said Snider was worth, over and above all his indebtedness, the sum of $20,000; that after said note was so executed he (Personett) tendered the same to Andis, who refused to either receive or accept such note, "without cause;" that he, the said Personett, at the time of tendering said note, and at divers times thereafter, demanded from the said Andis possession of so much of the farm as was necessary to enable him to sow wheat, as was provided by the lease he might do, in the autumn of 1884, but that the said Andis had refused at all times to permit him, the said Personett, to take possession of, or to have access to, any part of the farm, and had absolutely refused to allow him to sow wheat thereon. Upon these and other facts charged, both general and special damages were demanded.

At the succeeding October term of the court below a demurrer to the complaint was overruled, and a trial resulted in a verdict and judgment for Personett, the plaintiff.

Error is assigned upon the overruling of the demurrer to the complaint, and upon the denial of a motion for a new trial which was at the proper time interposed.

As against the sufficiency of the complaint, it is urged that, as no time was specified within which Personett was to execute a note to Andis for the rent of the farm, it was requisite that such a note should be executed within a reasonable time; that what was a reasonable time, under the circumstances, was a question of law for the court; that, therefore, the precise time at which the note prepared by Personett was executed and tendered ought to have been alleged in the complaint; that, conceding that the note was executed and tend