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claim, and would not settle the estate without giving appellant notice in time to be present, or to have some one present, to receive payment; that on June 17, 1899, without having procured an order to settle said estate as insolvent, said administrator filed a report of final settlement, showing that the assets were $2,092.43, and that he had paid all of said sum out upon preferred claims; that in fact all of the preferred claims against said estate amounted to only $906.24; that appellant had no personal service of notice of intention to make final settlement; that it was not present in person or by attorney when such settlement was made; that it was misled by the assurance of said administrator as aforesaid, and thereby prevented from calling the attention of the court to its claim before the approval of said final settlement report; that on June 17, 1899, the court approved said final report, and adjudged said estate to be fully settled; that appellant's judgment was ignored; and that said administrator acted with full knowledge of its rights and fraudulently. It is further averred that the appellee Vada Stewart, the widow, knew of appellant's judgment, and colluded with the administrator to prevent it from filing the same, and to deprive it illegally of its due; that, except for such action of appellees, it would have protected its interests. Prayer that the order settling the estate be revoked, and the estate reopened.

Section 2558, Burns' Rev. St. 1901, provides for the setting aside of the final settlement of an estate, for illegality, fraud, or mistake, within three years from the date of such settlement. This action was brought within the time named, and in the same court approving the settlement. The facts set out in the complaint are sufficient to establish both illegality and fraud. The purpose of the law is to secure the equitable and correct disposition of decedents' estates. The administrator represented appellant and the other creditors as well as the heirs of decedent. It was no part of his duty, by sharp practice or deceit, to prevent them, or any of them, from sharing in decedent's assets, and the law will not permit him to do so. The authorities are numerous and direct. Harter v. Songer, 138 Ind. 161, 37 N. E. 595; Chase v. Beeson, 92 Ind. 61; Miller v. Steele, 64 Ind. 79; Crum v. Meeks, 128 Ind. 360, 27 N. E. 722.

Judgment reversed and cause remanded, with instruction to overrule demurrers to the complaint, and for further proceedings not inconsistent herewith.

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ruling of a demurrer to one of its paragraphs could not be available error.

2. Where the evidence is undisputed that the mortgagee told the mortgagor that he would send a certain notary to fix up the mortgage with the mortgagor and his wife, and that whatever they and the notary did was all right, evidence of statements made by such notary to the wife as to the mortgage while fixing it up are admissible against the mortgagee.

Appeal from circuit court, Delaware county; Joseph G. Leffler, Judge.

Action by Felix P. Anderson against John S. Krohn, with cross complaint by defendant against the plaintiff and others. From a judgment for only a portion of the relief claimed in his cross complaint, defendant appeals. Affirmed.

Ryan & Thompson, for appellant. Templer, Ball & Templer and Gregory, Silverburg & Lotz, for appellees.

BLACK, J. The appellee Felix P. Anderson brought suit against the appellant, the complaint consisting of four paragraphs, a demurrer to each of which for want of sufficient facts was overruled. The appellant answered, and also filed a cross complaint against the plaintiff and the other appellees, Mary A. Anderson, wife of the plaintiff, and the Etna Life Insurance Company. No question is made here concerning the insurance company. In this court the appellant has questioned the action of the court below in overruling his demurrer to the second paragraph of the complaint. In that paragraph the plaintiff sought to have a certain note made by him to the appellant for $1,500, and a mortgage on the plaintiff's real estate executed by him and his wife to secure the note, adjudged invalid and of no force or effect, and to have the plaintiff's title to the real estate quieted against the mortgage and all claims of the appellant, and to recover damages; the alleged ground for the relief prayed being that the note and mortgage were given without any considération. By the cross complaint of the appellant, he sought the foreclosure of the mortgage mentioned in the complaint. On the trial the court found for the appellant against the plaintiff upon the complaint, and found in favor of the appellant on his cross complaint and upon the mortgage therein sued upon, and judgment was rendered accordingly; the mortgage being foreclosed in favor of the appellant.

The court having expressly found against the plaintiff upon the entire complaint, the overruling of the demurrer to one of its paragraphs could not be available error.

Some question is made concerning the admission of certain testimony of the appellee Felix P. Anderson and of one John Hook relating to a statement of one Le Favour made in the absence of the appellant. The character and amount of the consideration of the note and mortgage were in dispute. There was evidence that the appellant himself proposed the making of the mortgage to secure

sums which he proposed to furnish thereafter to Anderson if he should need money to carry on a certain lawsuit in which Anderson was seeking to recover possession of certain horses from one McLain,-the appellant also proposing that he would furnish horses to Anderson if he should need them, the money and horses so furnished "to go on the mortgage"; that it was agreed that the appellant would send the note and mortgage to Anderson's home the next day for signing; that the appellant said to Anderson, "I will send Joe Le Favour up there to see after it and fix it up with you and your wife to-morrow, and, whatever you and him does, why, it is all right." The next day Le Favour took the note and mortgage to the home of the Andersons. The court, over appellant's objection, permitted the appellee Felix P. Anderson to testify that, before the mortgage was signed, Le Favour there stated to Mrs. Anderson, in the presence of the witness (John Hook also being present), that the note "is to secure him, provided he needs money for that lawsuit between him and McLain. He is to let him have money, provided he needs any." Mrs. Anderson said to Le Favour, "There is not any money paid to-day?" To which he answered, "No, sir; no money paid at all." John Hook also was permitted, over appellant's objection, to testify to the statement of Le Favour on this occasion. The court, in overruling the objection to the question propounded to Mr. Anderson, expressly based its ruling upon the statement of the witness that the appellant said he would send Le Favour, and whatever he did would be all right. The mortgage in suit was acknowledged before Joseph Le Favour as notary public. It thus appeared that Le Favour was deputed not merely to procure a signature or to take an acknowledgment, but also to explain for the appellee Mrs. Anderson the character of the transaction. The court below regarded him as having authority as an agent to such extent, and we cannot say that there was not sufficient ground for such conclusion. He was to be sent by appellant to "see after it and fix it up with Anderson and his wife, and whatever he did would be all right." The appellant himself, having reference to the same occasion, testified on the trial to the same effect,-that he told Le Favour to tell Mrs. Anderson all about it, and whatever he did would be all right. There is no pretense that the mortgage was given to secure a debt, pre-existing or then created, amounting in fact to the sum mentioned in the note and mortgage. The amount actually due from Anderson to the appellant was ascertained on the trial, and for that amount he obtained judgment, with the foreclosure of the mortgage. If the amount was too small, there has been no effort to indicate such an objection here. The appellant does not appear to have been wrongly affected by the evidence in question. Judgment affirmed.

(29 Ind. App. 463)

FITCH et al. v. LONG et al. (Appellate Court of Indiana, Division No. 1. June 16, 1902.)

APPEAL STATUTES-DISMISSAL ON COURT'S MOTION.

1. Act March 12, 1901, § 6 (Burns' Rev. St. 1901, § 1337f), providing that no appeal shall hereafter be taken to the appellate or supreme court in a civil case within the jurisdiction of a justice of the peace except in certain cases, applies to a case in which judgment was rendered, but appeal was not perfected, before approval of the act.

2. The appellate court, having no jurisdiction of an appeal, will dismiss it of its own motion. Appeal from superior court, Allen county; John H. Aiken, Judge.

Action by Monroe W. Fitch and others against Kittie Long and others. From judgment of the superior court for defendants, on appeal from justice of the peace, plaintiffs appeal. Dismissed.

W. & E. Leonard, for appellants.

ROBINSON, J. Appellants sued appellees before a justice of the peace to recover brokerage commissions, and recovered a judgment for $137.50. Appellees appealed to the Allen superior court, where a trial resulted in a judgment in appellees' favor on January 31, 1901. On the same day appellants prayed an appeal to this court, which was granted on condition that appellants file their appeal bond in the sum of $200 within 20 days. On February 12, 1901, appellants filed their appeal bond, which was approved. On April 13, 1901, they filed a transcript of the proceedings of the trial court, together with their assignment of errors, in this court. This was a term-time appeal, the transcript having been filed in this court within 60 days after the filing of the appeal bond, as provided in section 650, Burns' Rev. St. 1901. The appeal was perfected by the filing of the transcript and assignment of errors in this court on April 3, 1901.

Section 6 of the act approved March 12, 1901 (section 1337f, Burns' Rev. St. 1901) provides: "No appeal shall hereafter be taken to the supreme court or to the appellate court in any civil case which is within the jurisdiction of a justice of the peace, except as provided in section eight of this act." Section 8 (section 1337h, Burns' Rev. St. 1901) of the same act provides: "Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guarantied by the state or federal constitution, and which case would be otherwise unappealable by virtue of section six or section seven, shall be appealable directly to the supreme court, for the purpose of presenting such

¶ 2. See Appeal and Error, vol. 3, Cent. Dig. § 3138.

question only." Although the judgment was rendered prior to the approval of the act of March 12, 1901, the appeal was not perfected until the filing of the transcript and assignment of errors, 22 days after that act was in force. Bacon v. Withrow, 110 Ind. 94, 10 N. E. 624; Henderson v. Halliday, 10 Ind. 24; Lawrence v. Wood, 122 Ind. 452, 24 N. E. 159; Board v. Vurpillat, 14 Ind. App. 311, 42 N. E. 962; Railroad Co. v. Watkins, 157 Ind. 600, 62 N. E. 443; Elliott, App. Proc. § 128; Ewbank, Man. §§ 101, 102. "The question," said the court by Jordan, C. J., in Railroad Co. v. Watkins, supra, "as to whether the judgment from which the appeal is attempted to be taken was rendered before or after the time when the statute became effective is not a feature of the law. By the plain letter thereof it was intended to forbid the taking of any and all appeals within the class mentioned, and not within some of the exceptions named in section 8, after it went into effect, regardless of the time when the judgment from which the appeal is attempted to be taken was rendered."

As the appeal was not perfected until after the act denying the right of appeal in such cases was in force, it follows that this court has no jurisdiction to determine the merits of the case. It is true, no motion to dismiss the appeal has been made, but, as it is a question relating to jurisdiction of the subject-matter,-a matter which the parties to the appeal cannot waive nor the court itself disregard,-it becomes the duty of the court to dismiss such an appeal, on its own motion, for want of jurisdiction. Insurance Co. v. Frankel, 151 Ind. 534, 50 N. E. 304. See, also, Abshire v. Williamson, 149 Ind. 248, 48 N. E. 1027; Vordermark v. Wilkinson, 142 Ind. 142, 39 N. E. 441; Hawkins v. McDougal, 126 Ind. 544, 25 N. E. 708. As the record discloses none of the exceptions enumerated in section 8 of the act of March 12, 1901 (section 1337h, Burns' Rev. St. 1901), placing jurisdiction of the case in the supreme court, there is no authority for transferring the case to that court under the provisions of section 1362, Burns' Rev. St. 1901. The appeal is dismissed.

(29 Ind. App. 387)

VAUGHT v. BARNES' ESTATE. (Appellate Court of Indiana, Division No. 2. June 20, 1902.)

Modification of opinion on rehearing. For former opinions, see 62 N. E. 93; 63 N. E. 864.

PER CURIAM. And afterwards, to wit, on the 19th day of June, 1902, the court being sufficiently advised in the premises, the mandate in the opinion overruling petition for a rehearing is modified as follows: On petition of appellee, the mandate in the opinion overruling the petition for rehearing is mod

ified, and the court below is directed to grant appellee a new trial if applied for within 60 days from May 1, 1902.

(29 Ind. App. 503)

MOORE v. SMITH et al.

(Appellate Court of Indiana, Division No. 1. June 27, 1902.)

MORTGAGED PROPERTY-SALE BY MORTGAGEE -ESTOPPEL.

1. Plaintiff held a recorded chattel mortgage on certain corn, and represented to defendants, who had no actual knowledge of the mortgage, that he was the agent of the mortgagor for the sale of the corn, and that it was free from all liens, except that plaintiff was entitled to a small amount out of the proceeds. Defendants purchased the corn, paying plaintiff the amount he claimed to be due him. Defendants had part of the corn delivered to them, and paid the mortgagor the remainder due thereon after deducting the amount paid to plaintiff. Held, that plaintiff was precluded from setting up any claim to the corn as against defendants.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by Ranson S. Moore against Arza Smith and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Christian, Christian & Clowe, for appellant. Shirts & Fertig, for appellees.

BLACK, J. The appellant brought his suit upon a chattel mortgage executed to him by one Rodocker on certain growing crops of corn on the 1st of June, 1899; it being alleged that the appellees, Smith and Shelby, purchased the corn,-from whom is not stated, and refused to pay the appellant therefor, and deny his rights and liens therein.

The overruling of appellant's demurrer to the fourth paragraph of the answer of the appellees is assigned as error. This answer showed that in September, 1899, the appellant went to the place of business of the appellees, who were engaged in the business of buying and shipping grain, and, as agent for the mortgagor, solicited the appellees to purchase the corn, and, to induce them to do so, represented and stated to them that the corn was clear of all liens and claims, except that he (the appellant) was entitled to the payment of $120 out of the proceeds of the corn agreement between him and Rodocker; that the appellees relied upon these representations and statements of the appellant, and had no knowledge of the existence of the mortgage, and, so relying, were induced to purchase and did purchase the corn, and then and there entered into a written contract for the purchase of the corn from the appellant, as such agent. The contract was set out, signed by J. C. Rodocker, per R. S. Moore, and by Shelby and Smith, and purported to certify that "I have sold to Shelby and Smith," etc., five cornfields, stating their location, "one-half of all the fields, or my interest therein, supposed to

1. See Estoppel, vol. 19, Cent. Dig. § 231.

sums which he proposed to furnish thereafter to Anderson if he should need money to carry on a certain lawsuit in which Anderson was seeking to recover possession of certain horses from one McLain,-the appellant also proposing that he would furnish horses to Anderson if he should need them, the money and horses so furnished "to go on the mortgage"; that it was agreed that the appellant would send the note and mortgage to Anderson's home the next day for signing; that the appellant said to Anderson, "I will send Joe Le Favour up there to see after it and fix it up with you and your wife to-morrow, and, whatever you and him does, why, it is all right." The next day Le Favour took the note and mortgage to the home of the Andersons. The court, over appellant's objection, permitted the appellee Felix P. Ander son to testify that, before the mortgage was signed, Le Favour there stated to Mrs. Anderson, in the presence of the witness (John Hook also being present), that the note "is to secure him, provided he needs money for that lawsuit between him and McLain. He is to let him have money, provided he needs any." Mrs. Anderson said to Le Favour, "There is not any money paid to-day?" To which he answered, "No, sir; no money paid at all." John Hook also was permitted, over appellant's objection, to testify to the statement of Le Favour on this occasion. The court, in overruling the objection to the question propounded to Mr. Anderson, expressly based its ruling upon the statement of the witness that the appellant said he would send Le Favour, and whatever he did would be all right. The mortgage in suit was acknowledged before Joseph Le Favour as notary public. It thus appeared that Le Favour was deputed not merely to procure a signature or to take an acknowledgment, but also to explain for the appellee Mrs. Anderson the character of the transaction. The court below regarded him as having authority as an agent to such extent, and we cannot say that there was not sufficient ground for such conclusion. He was to be sent by appellant to "see after it and fix it up with Anderson and his wife, and whatever he did would be all right." The appellant himself, having reference to the same occasion, testified on the trial to the same effect,-that he told Le Favour to tell Mrs. Anderson all about it, and whatever he did would be all right. There is no pretense that the mortgage was given to secure a debt, pre-existing or then created, amounting in fact to the sum mentioned in the note and mortgage. The amount actually due from Anderson to the appellant was ascertained on the trial, and for that amount he obtained judgment, with the foreclosure of the mortgage. If the amount was too small, there has been no effort to indicate such an objection here. The appellant does not appear to have been wrongly affected by the evidence in question. Judgment affirmed.

(29 Ind. App. 463)

FITCH et al. v. LONG et al. (Appellate Court of Indiana, Division No. 1. June 16, 1902.)

APPEAL STATUTES-DISMISSAL ON COURT'S MOTION.

1. Act March 12, 1901, § 6 (Burns' Rev. St. 1901, § 1337f), providing that no appeal shall hereafter be taken to the appellate or supreme court in a civil case within the jurisdiction of a justice of the peace except in certain cases, applies to a case in which judgment was rendered, but appeal was not perfected, before approval of the act.

2. The appellate court, having no jurisdiction of an appeal, will dismiss it of its own motion. Appeal from superior court, Allen county; John H. Aiken, Judge.

Action by Monroe W. Fitch and others against Kittie Long and others. From judgment of the superior court for defendants, on appeal from justice of the peace, plaintiffs appeal. Dismissed.

W. & E. Leonard, for appellants.

ROBINSON, J. Appellants sued appellees before a justice of the peace to recover brokerage commissions, and recovered a judgment for $137.50. Appellees appealed to the Allen superior court, where a trial resulted in a judgment in appellees' favor on January 31, 1901. On the same day appellants prayed an appeal to this court, which was granted on condition that appellants file their appeal bond in the sum of $200 within 20 days. On February 12, 1901, appellants filed their appeal bond, which was approved. On April 13, 1901, they filed a transcript of the proceedings of the trial court, together with their assignment of errors, in this court. This was a term-time appeal, the transcript having been filed in this court within 60 days after the filing of the appeal bond, as provided in section 650, Burns' Rev. St. 1901. The appeal was perfected by the filing of the transcript and assignment of errors in this court on April 3, 1901.

Section 6 of the act approved March 12, 1901 (section 1337f, Burns' Rev. St. 1901) provides: "No appeal shall hereafter be taken to the supreme court or to the appellate court in any civil case which is within the jurisdiction of a justice of the peace, except as provided in section eight of this act." Section 8 (section 1337h, Burns' Rev. St. 1901) of the same act provides: "Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a inunicipal corporation or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guarantied by the state or federal constitution, and which case would be otherwise unappealable by virtue of section six or section seven, shall be appealable directly to the supreme court, for the purpose of presenting such

¶ 2. See Appeal and Error, vol. 3, Cent. Dig. § 3138,

question only." Although the judgment was rendered prior to the approval of the act of March 12, 1901, the appeal was not perfected until the filing of the transcript and assignment of errors, 22 days after that act was in force. Bacon v. Withrow, 110 Ind. 94, 10 N. E. 624; Henderson v. Halliday, 10 Ind. 24; Lawrence v. Wood, 122 Ind. 452, 24 N. E. 159; Board v. Vurpillat, 14 Ind. App. 311, 42 N. E. 962; Railroad Co. v. Watkins, 157 Ind. 600, 62 N. E. 443; Elliott, App. Proc. § 128; Ewbank, Man., §§ 101, 102. "The question," said the court by Jordan, C. J., in Railroad Co. v. Watkins, supra, "as to whether the judgment from which the appeal is attempted to be taken was rendered before or after the time when the statute became effective is not a feature of the law. By the plain letter thereof it was intended to forbid the taking of any and all appeals within the class mentioned, and not within some of the exceptions named in section 8, after it went into effect, regardless of the time when the judgment from which the appeal is attempted to be taken was rendered."

As the appeal was not perfected until after the act denying the right of appeal in such cases was in force, it follows that this court has no jurisdiction to determine the merits of the case. It is true, no motion to dismiss the appeal has been made, but, as it is a question relating to jurisdiction of the subject-matter,-a matter which the parties to the appeal cannot waive nor the court itself disregard,-it becomes the duty of the court to dismiss such an appeal, on its own motion, for want of jurisdiction. Insurance Co. v. Frankel, 151 Ind. 534, 50 N. E. 304. See, also, Abshire v. Williamson, 149 Ind. 248, 48 N. E. 1027; Vordermark v. Wilkinson, 142 Ind. 142, 39 N. E. 441; Hawkins v. McDougal, 126 Ind. 544, 25 N. E. 708. As the record discloses none of the exceptions enumerated in section 8 of the act of March 12, 1901 (section 1337h, Burns' Rev. St. 1901), placing jurisdiction of the case in the supreme court, there is no authority for transferring the case to that court under the provisions of section 1362, Burns' Rev. St. 1901. The appeal is dismissed.

(29 Ind. App. 387)

VAUGHT v. BARNES' ESTATE. (Appellate Court of Indiana, Division No. 2. June 20, 1902.)

Modification of opinion on rehearing. For former opinions, see 62 N. E. 93; 63 N. E. 864.

PER CURIAM. And afterwards, to wit, on the 19th day of June, 1902, the court being sufficiently advised in the premises, the mandate in the opinion overruling petition for a rehearing is modified as follows: On petition of appellee, the mandate in the opinion overruling the petition for rehearing is mod

ified, and the court below is directed to grant appellee a new trial if applied for within 60 days from May 1, 1902.

(29 Ind. App. 503)

MOORE v. SMITH et al.

(Appellate Court of Indiana, Division No. 1. June 27, 1902.)

MORTGAGED PROPERTY-SALE BY MORTGAGEE -ESTOPPEL.

1. Plaintiff held a recorded chattel mortgage on certain corn, and represented to defendants, who had no actual knowledge of the mortgage, that he was the agent of the mortgagor for the sale of the corn, and that it was free from all liens, except that plaintiff was entitled to a small amount out of the proceeds. Defendants purchased the corn, paying plaintiff the amount he claimed to be due him. Defendants had part of the corn delivered to them, and paid the mortgagor the remainder due thereon after deducting the amount paid to plaintiff. Held, that plaintiff was precluded from setting up any claim to the corn as against defendants.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by Ranson S. Moore against Arza Smith and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Christian, Christian & Clowe, for appellant. Shirts & Fertig, for appellees.

BLACK, J. The appellant brought his suit upon a chattel mortgage executed to him by one Rodocker on certain growing crops of corn on the 1st of June, 1899; it being alleged that the appellees, Smith and Shelby, purchased the corn,-from whom is not stated, and refused to pay the appellant therefor, and deny his rights and liens therein.

The overruling of appellant's demurrer to the fourth paragraph of the answer of the appellees is assigned as error. This answer showed that in September, 1899, the appellant went to the place of business of the appellees, who were engaged in the business of buying and shipping grain, and, as agent for the mortgagor, solicited the appellees to purchase the corn, and, to induce them to do so, represented and stated to them that the corn was clear of all liens and claims, except that he (the appellant) was entitled to the payment of $120 out of the proceeds of the corn agreement between him and Rodocker; that the appellees relied upon these representations and statements of the appellant, and had no knowledge of the existence of the mortgage, and, so relying, were induced to purchase and did purchase the corn, and then and there entered into a written contract for the purchase of the corn from the appellant, as such agent. The contract was set out, signed by J. C. Rodocker, per R. S. Moore, and by Shelby and Smith, and purported to certify that "I have sold to Shelby and Smith," etc., five cornfields, stating their location, "one-half of all the fields, or my interest therein, supposed to

1. See Estoppel, vol. 19, Cent. Dig. § 231.

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