there were two motions, one by appellants |ion held that, because of this statutory proHessong, Swarm, and Martin, the other by vision, the motions were each insufficient beappellants Zainey and Zainey, and that, when the court overruled these motions, the exception was a joint exception by all of the appellants, and makes the contention that, since the exception was a joint exception by all of the appellants, no question is presented, citing numerous cases, all of which have been either directly or indirectly overruled. See Whitesell v. Strickler (1906) 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524; Bedford Quarries Co. v. Bough (1907) 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418; Southern R. Co. v. Elliott (1907) 170 Ind. 273, 82 N. E. 1051; Baxter v. Baxter (1910) 46 Ind. App. 514, 92 N. E. 881, 1039; Brier v. Mankey (1910) 47 Ind. App. 7, 93 N. E. 672; Boyles v. Hoch (1916) 186 Ind. 93, 115 N. E. 52; Honey v. Guillaume (1909) 172 Ind. 552, 88 N. E. 937. It is argued that the motions are not pleadings, and therefore are not included by the præcipe. It must be borne in mind that a motion to set aside a default is not like an ordinary motion which may be either in writing or by parol; it is a motion, or more accurately a petition, making application to the court for affirmative relief, and is in the nature of a complaint. To hold that the word "pleadings" as used in the præcipe under consideration does not include the motions which formed appellants' application for relief from the judgment taken by default is highly technical to say the least; but to hold, as we do, that the præcipe calls for the motions, it is not necessary to decide that the motions are pleadings. The præcipe calls for "a complete transcript" of "the exceptions," and such a transcript would necessarily include the motions which had been overruled. cause not filed as an original complaint with notice. In this the court erred. The motions were filed during the term of court at which the default judgment was rendered, and were, therefore, a part of the proceedings in the original cause. Courts retain control of the record of a proceeding until the close of the term at which a final disposition thereof is made, with power to alter or set aside its former rulings, orders, and judgments. McClellan v. Binkley (1881) 78 Ind. 503; Wabash R. Co. v. City of Gary (1921) 191 Ind. 394, 132 N. E. 737. The suggestion that, because of the section of the Code above referred to, the court is without jurisdiction to set aside a judgment during the term at which it was rendered, unless it be done upon complaint with notice, is without merit. The provision of the statute that the relief shall be granted on complaint as in original actions, with notice, within two years after rendition of judgment, applies only to a proceeding commenced after the close of the court term at which the judgment was rendered. It is unnecessary in this opinion to detail It is the facts set forth in the motions. enough to say that in each of the motions the facts are sufficient to show excusable neglect on the part of the applicants for re lief. Reversed, with instructions to set aside the judgment. NORTH LIBERTY SILO & CONCRETE CO. v. HUBER et al. (No. 12202.) (Appellate Court of Indiana, Division No. 2. Nov. 20, 1925.) 441 (9)—Express agreement 1. Evidence constituting warranty cannot be shown by parol, where principal contract is in writing. Where principal contract is in writing, express agreement constituting warranty cannot be shown by parol. 2. Sales 273 (2)-Seller and builder of silo impliedly warranted its fitness for holding and preserving ensilage. ranted its fitness for holding and preserving enSeller and builder of silo impliedly war silage. Appeal from Circuit Court, Decatur County; John W. Craig, Judge. Action by the North Liberty Silo & Concrete Company against Robert Huber and another. Judgment for defendants, and plaintiff appeals. Affirmed. [3] In overruling the motions to set aside the judgment, the trial court called attention to the provision of the statute (section 135, Code of Civ. Proc.; Acts 1921, p. 277, c. 115), that relief in such cases is to be granted "on Hugh D. Wickens and Frank Hamilton, complaint and notice issued as in original ac- both of Greensburg, for appellant. tions, within two years from and after the George L. Tremain and Rollin A. Turner, date of the judgment," and in a written opin-both of Greensburg, for appellees. (149 N.E.) NICHOLS, P. J. Action by appellant to recover on a contract for the construction of a silo, and to foreclose a mechanic's lien therefor. in such manner as to render said silo wholly worthless for the purpose for which it was intended and for the purpose for which appellant impliedly warranted said silo to be useful. There was a finding against the appellant. Judgment was rendered accordingly that appellant take nothing and appellee recover costs. The error relied upon is that the court erred in overruling appellant's motion for a In the first paragraph of complaint, appellant alleged, in substance, that it and appellee Robert A. Huber entered into a written contract by which appellant agreed to furnish the material for, and perform labor necessary to erect, a concrete stave silo on real estate in Decatur county, Ind., therein described, and owned by appellee; that appel-new trial, upon the ground that the decision lant performed said contract; that there was due thereon $348.75. There were averments as to a mechanic's lien and as to attorney's fees. It appears by the contract of purchase that there was no express warranty of the silo. It is averred in the fourth paragraph of answer, so far as here involved, that at the time of purchase of the silo appellee was engaged in farming in Decatur county, Ind., and in raising live stock upon said farm; that at that time he desired to have erected upon his farm a silo for the purpose of holding ensilage to be fed to his said live stock; that, with full knowledge of the use for which appellee desired said silo, and knowing that he was purchasing it and was having it erected for the sole and only purpose of holding and preserving ensilage to be fed to his live stock, appellant did upon said date agree with appellee to erect upon his said farm a silo suitable for said purpose, and entered into the contract sued upon, well knowing that ap-fered no evidence of such warranty; but appellee desired to have said silo erected for that purpose and no other; that, knowing all of said facts, appellant impliedly warranted to appellee that it was able to and would erect a silo suitable for such purpose. But appellant wholly failed and neglected to erect said silo in such manner as to hold and preserve ensilage, but erected the same in a negligent and faulty manner, and used defective, rotten, and unfit material in the construction of the same; that the cement staves were rotten and broken, and, at the time appellant announced that it had completed the construction of said silo, there were 64 broken concrete staves therein; that more than 40 of said broken staves were on one side of said silo, and 11 in a continuous row were broken, the effect of which rotten and broken concrete staves was to render said silo unfit for holding and preserving ensilage as food for live stock, and said silo was and is at this time unfit to be used for said purpose; that said concrete staves are broken and cracked of the court is contrary to law and not supported by sufficient evidence. [1, 2] We have carefully examined the evidence in this case as it appears in appellant's brief, supplemented by appellee in his brief, and we have no hesitation in saying that there is ample evidence to sustain the decision of the court, and that it is not contrary to law. Appellant confuses the rule that prevails where there is a written contract and \ there is an attempt to prove by parol an express warranty, with the rule that prevails when there is an implied warranty. Where the principal contract is in writing, an express agreement constituting a warranty cannot be shown by parol. Such is the holding of Michigan Pipe Co., v. Sullivan Water Co., 190 Ind. 14, 127 N. E. 768, 129 N. E. 5, relied upon with so much confidence by appellant; but in this case appellee does not attempt to rely upon an express warranty, and has of pellee does rely upon an implied warranty as to quality and fitness, as is revealed in his fourth paragraph of answer. All his evidence tended to support the averments of that paragraph of answer, and there was certainly some evidence to sustain it. As was said in Indiana Silo Co. v. Harris, 134 Ark. 218, 203 S. W. 581: "In the absence of express warranty, the seller of a silo was liable on an implied warranty that it would preserve ensilage and was fit for the purposes for which it was manufactured and sold." Indiana authorities that sustain this principle are Oil Wells Supply Co. v. Watson, 168 Ind. 603, 80 N. E. 157, 15 L. R. A. (N. S.) 868; Hart-Kraft Motor Co. v. Indianapolis Motor Car Co., 183 Ind. 311, 109 N. E. 39; Zimmerman v. Druecker, 15 Ind. App. 512, 44 N. E. 557; J. P. Smith Shoe Co. v. Curme, etc., Co., 71 Ind. App. 401, 118 N. E. 360. Judgment affirmed. I. Appeal and error -835 (2)-Objections to admission of evidence waived, where made for first time on rehearing. Objections to erroneous admission of evidence are waived, where not urged as ground of reversal, and cannot be presented on petition for rehearing. 2. Appeal and error 837(11)-In passing on overruling of demurrer, Appellate Court may consider entire record, where error in admitting evidence covering alleged defects in complaint was waived. Appellate Court, in view of Burns' Ann. St. 1914, §§ 350, 407, and 700 (Rev. St. 1881, §§ 345, 398, 658), may look to entire record, including evidence brought into record by bill of exceptions, to determine whether or not trial court's overruling of demurrer to complaint was reversible error, where appellant waived his objections to admission of evidence covering al questioned on petition for a rehearing. Had it been presented by appellant, and urged as a reason why the cause should be reversed, we might have reached a different conclusion. But we were not called upon to pass upon that question, and do not now express any opinion on that subject. Appellant having waived the error, if any, in the admission of this evidence, the appeal comes to us the same as if the evidence had been admitted without any objection, and we properly, under the sections of the statutes referred to, rightly looked to the record to determine whether the overruling of the demurrer was reversible error. The questions discussed by appellant in the instant case are the same as were urged in support of a rehearing in Pittsburg, etc., R. Co. v. Rushton, 148 N. E. 337, where we held adversely to appellant's contention. See opinion on rehearing in that case. Rehearing denied. STONE v. TRAVELERS' INS. CO. et al. (No. 12382.) leged defects in complaint by making no claim (Appellate Court of Indiana, Division No. 2. of error respecting same; appeal therefore being as though evidence had been admitted without objection. Appeal from Circuit Court, Boone County; Frank E. Hutchinson, Judge. On petition for rehearing. Petition denied. For former opinion, see 148 N. E. 335. MCMAHAN, J. Appellant insists that we erred in applying sections 350, 407, and 700, Burns' 1914 (sections 345, 398, and 658, R. S. 1881), to the record, and in holding that we could look to the entire record, including the evidence which had been brought into the record by a bill of exceptions, to determine whether the action of the court in overruling the demurrer to the complaint amounted to reversible error. Appellant has filed an able brief, in support of its petition for a rehearing, in which it devotes over 100 pages to its contention. [1, 2] In addition to the cases cited by us in the principal opinion, wherein it had been held that the overruling of a demurrer to a defective complaint could not be cured by subsequent proceedings, appellant has cited and quoted from a number of other and earlier decisions to the same effect; but, as stated in our opinion, the courts have departed, and wisely we think, from the rule announced in the cases on which appellant relies for a reversal. While appellant did in this case object to the introduction of evidence covering the alleged defects in the complaint, no claim was made that the court erred in admitting such evidence. The error, if any, in admitting this evidence, was waived, and cannot be 1 Nov. 20, 1925.) 1. Appeal and error 525(2), 757 (4)—AIleged errors in giving of instructions held not reviewable on appeal. Alleged errors in giving instructions held not reviewable on appeal, conceding that they were brought into record under Burns' Ann. St. 1914, § 561, and not section 560, where it did not appear that instructions given were signed by court, when, or with whom filed, and rule 22, cl. 5, of rules of Appellate and Supreme Courts providing that, when action of court in giving or refusing instructions is challenged, all instructions given must be set out in appellant's brief, was not complied with. 2. Master and servant 330 (3)-Evidence held to authorize inference driver was acting within scope of employment. Evidence that car colliding with plaintiff's car belonged to defendant, and that driver was his salesman, and had at other times taken car out for demonstration purposes, and that he was permitted to take cars out of sales room for any purpose to defendant's advantage, held to authorize inference that driver was, at time of collision, acting within scope of his employment. 3. Damages 188(1)—Evidence of expenditure required to repair plaintiff's car held sufficient on which to base his damages. In action for damages to automobile from collision with defendant's car, evidence of expenditure required to repair plaintiff's car held sufficient on which to base damages. 4. Appeal and error 221-Method of proving damages not ground for complaint, in absence of objection thereto. In action for damages to automobile arising out of a collision with defendant's car, that damages were proven by reading an itemized (149 N.E.) statement of the repair bill for the car held not ground for complaint, in absence of objection thereto in trial court. 5. Appeal and error 221-That it did not appear what amount plaintiff insurer had paid to coplaintiff owner arising from automobile collision held not ground for complaint. In action by insurer and owner of automobile for damages from collision with defendant's automobile, that it did not appear what amount if any insurer had paid to owner held not ground for complaint, where defendant presented no question with reference thereto to trial court. Appeal from Superior Court, Marion County; Ralph M. Spaan, Special Judge. It does not appear that the instructions given were signed by the court, when they were filed, or with whom filed. Clause 5 of rule 22 of the rules of this court and the Supreme Court expressly provides that, when the action of the court in giving or refusing instructions is challenged, all the instructions given must be set out in appellant's brief. This was not complied with. In the face of appellees' challenge that the instructions are not in the record, appellant's brief is not sufficient in this regard. We therefore can give the alleged errors of the court in giving instructions no consideration. [2] Appellant contends that there was no evidence that Lingenfellow was acting as his agent and working within the scope of his employment at the time of the accident without which proof there could be no recovery against appellant. But it appears by the evidence that the car belonged to appellant; that Lingenfellow was his salesman, and had at other times taken the car out for demonstration purposes; and that he was permitGarrett W. Olds, of Indianapolis, for ap- ted to take cars out of the sales room for pellees. Action by the Travelers' Insurance Company and another against Harry W. Stone, doing business as the Stone Chevrolet Company, and another. Judgment for plaintiffs, and the named defendant appeals. Affirmed. Frank Mellis, of Indianapolis, for appellant. NICHOLS, P. J. Action by appellees against appellants for damages to personal property arising out of a collision of an automobile owned by appellee Bull, and a car alleged to belong to appellant Stone, and op erated by appellant Lingenfellow, July 6, 1923, on Meridian street in the residential section of Indianapolis. The verdict of the jury was for appellees giving them damages in the sum of $150. Upon which, after a remittitur, judgment was rendered against appellant and Lingenfellow jointly, and in favor of appellees jointly. From this judgment Stone alone appeals. The error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial, the reasons for which being that the verdict of the jury is not sustained by sufficient evidence; the verdict of the jury is contrary to law; the damages assessed by the jury are excessive; and that the court erred in giving to the jury, at the request of the plaintiffs, each of instructions numbered 3 and 6. [1] There is a controversy between appellees and appellant as to under what section of the statute appellant has attempted to bring the instructions into the record; appellees contending that it is under section 560, Burns' R. S. 1914, while appellant contends that it is under section 561. Conceding, as appellant contends, that it is under section 561, he has failed to comply with the statute. The brief pertaining to this question shows that "Said request (appellees'), instructions and exceptions (appellant's), were filed and made a part of the record together with all instructions given." any purpose to the advantage of appellant. We hold that, from this evidence, the jury might reasonably infer that Lingenfellow was, at the time of the accident, acting within the scope of his employment. [3, 4] Appellant says that there was no evidence of the value of appellee Bull's car before the accident, and after the accident, and that therefore there was no evidence by which the damages could be measured. There was, however, evidence that it required an expenditure of $93.55 to repair the damaged car, which had the appearance of a new one, and, after a remittitur reducing the amount of recovery to this amount, judgment was rendered therefor. An itemized statement of the repair bill was read in evidence. It does not appear that there was any objection to this method of proving the damages, and appellant cannot be heard first to present his objection thereto in this court. [5] Finally, appellant objects that it does not appear what amount, if any, the insurance company paid to appellee Bull, and that therefore there was no right of subrogation. It does appear, however, that appellee Bull paid $50 of the damages, which was the amount she was required to pay before the insurance company became liable, and that thereafter the insurance company took charge of the repair of the car and the negotiations with appellant, looking to a settlement of the damages. Appellant must have deemed this sufficient, or must have considered himself not concerned as to the division between appellees of the amount of damages recovered, as he presented no question with reference thereto to the trial court. We find no reversible error. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes BARTLEY et al. v. BURGER. (No. 12259.) (Appellate Court of Indiana, in Banc. Nov. 17, 1925.) 1. Master and servant 385(14)-Loss of use of leg below knee not within schedule of compensable injuries to leg. Injury to leg, to be compensable under Workmen's Compensation Act, § 31, as amended by Laws 1919, c. 57, clauses (b) and (c), must result in permanent total or partial loss of use of leg as whole, and not merely of that part of leg below knee, which injury is compensable only under clause (1). 2. Master and servant 419-Erroneous use of word "leg" instead of "foot" in finding on which award was based not available on employers' appeal from order directing resumption of payments thereunder. ished disability since award. From an award directing resumption of payments under original award, applicants appeal. Affirmed. John Rynerson, of Columbus, and O. F. Smith, of Indianapolis, for appellants. Horace M. Kean and Silas T. Kuiken, both of Jasper, for appellee. McMAHAN, J. Appellee, having been injured in an accident arising out of and in the course of his employment by appellants, filed his application for compensation. After a hearing before a single member of the Industrial Board, it was found that appellee's injury had resulted in the loss of 50 per cent. of the use of his left leg below the knee, and an award of $13.20 per week, beginning August 21, 1923, was made for 75 weeks. Without appealing to the full board, appellants paid the compensation according to that award, and on the next day, March 22, 1924, filed an application for review on account of a change in condition, in that appellee's "disability" had diminished since the date of the award; that it had ended; and that his injury had resulted in a "permanent Error in use of word "leg" instead of "foot" in Industrial Board member's finding of permanent partial loss of use of leg below knee, which is compensable only under Workmen's Compensation Act, § 31, cl. (h), as amended by Laws 1919, c. 57, and not under clause (c), relative to partial loss of use of leg, foot, etc., cannot be reached on employer's appeal from subsequent order directing resumption of pay-partial impairment." The full board on ap ments under award based on such finding on ground that there had been no change in employé's condition since award. 3. Master and servant 419-Error in basing award on inability to work instead of percentage of impairment held not cause for reversing refusal to modify award. That award of compensation was erroneously based on inability to work instead of percentage of impairment by injury, held not to warrant reversal of finding that there had been no change in employé's condition since such award and refusal to modify it on such ground. 4. Master and servant 419-Finding of no change in degree of impairment not error, in absence of finding of impairment or evidence of degree thereof on original hearing. peal from the award of a single member, found there had been no change in appellee's condition, and appellants were ordered to resume compensation payments from March 22, 1924, according to the terms of the award of March 21, 1924. Appellants appeal, and contend that the award of the full board is not sustained by sufficient evidence. Appellants call attention to the fact that the award of March 21st is based upon a finding that appellee had permanently lost 50 per cent. of the use of his left leg below the knee, and insist that whatever compensation appellee is entitled to receive must under the evidence be on the basis of a permanent partial impairment, and that there is In absence of finding, on original hearing of no finding that appellee has suffered a percompensation proceedings, that employé suffer-manent partial impairment. ed impairment, or evidence showing with certainty degree or extent of impairment at such time, appellate court cannot say from evidence introduced on employers' application for review on ground of diminished disability since award that Industrial Board erred in finding that there had been no change in degree of impairment. There is some confusion in the record as to the provision of the Workmen's Compensation Act (Laws 1915, c. 106) the member of the board had in mind when he made the original award. Section 31 of that act, as amended by Laws 1919, c. 57, provides for compensation for the injuries therein desig nated. Without setting out all of the proviRefusal to sions of this section, it is sufficient to say that clause (a) covers losses by separation, and among other losses provides that for the loss "of the foot below the knee joint" com 5. Master and servant 419 modify award held sustained by evidence. Evidence held to sustain Industrial Board's refusal to modify award on ground that there had been no material change in employé's con-pensation shall be for 150 weeks, and for the dition since. Appeal from Industrial Board. loss "of the leg above the knee joint" 200 weeks. Clause (b) provides that the total permanent loss of the use of certain mem Application by Charles H. Bartley and oth-bers, including a foot and leg, shall be coners, employers, for review of award of com- strued as the equivalent of loss by separapensation to John A. Burger, employé, by the tion, and that compensation shall be paid Industrial Accident Board, because of dimin-1 for the same period as for loss by separa |