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ligence. The question was for the jury, and the binding instruction ought not to have been given. Marchall v. Railroad Co. (Ind.

App.) 62 N. E. 286. Judgment reversed. Cause remanded, with instructions to sustain the motions for new trials.

(29 Ind. App. 508)

EVERITT v. EVERITT. (Appellate Court of Indiana, Division No. 1. Oct. 7, 1902.)

DIVORCE-CUSTODY OF CHILDREN-ORDER

EFFECT-RES ADJUDICATA.

1. Under Burns' Rev. St. 1901, § 1058 (Horner's Rev. St. § 1046), making it the duty of a court in decreeing a divorce to make provision for the guardianship, custody, support, and education of minor children of a marriage, a decree in habeas corpus proceedings by the mother to obtain possession of a child, which provided indefinitely for the child's maintenance, and decreed the time that the child should spend with each of her parents, was not res judicata, so as to preclude the court, in a subsequent divorce proceeding brought by the wife, from awarding the custody of the child to her.

Appeal from circuit court, Clark county; James K. Marsh, Judge.

Action by Emma J. Everitt against Eugene Everitt. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

George H. Voight, for appellant. L. A. Douglass, for appellee.

COMSTOCK, J. In December, 1898, appellee brought suit in the Scott circuit court against appellant for divorce, praying also for the custody of Lizzie Everitt, their only child. At the succeeding January term of court appellant filed a cross-complaint, and by agreement of parties the cause was continued until the next term of court. At the time of entering the continuance the court also entered an order giving the appellee the custody of the child until the further order of the court. At the next following term the cause was tried, and the court refused to grant either of the parties a divorce, finding for the appellant upon the complaint and for the appellee on the cross-complaint. Judgment was rendered accordingly. No further order was made at that time in reference to the child. On the 11th day of July, 1899, and after the rendition of the judgment in the divorce case, the appellee filed with the judge of the Scott circuit court a petition for a writ of habeas corpus, making the appellant and his father and brother defendants, and claiming therein the right to the custody of the child under the order made by the court during the pendency of the divorce suit. The writ was issued, and a trial resulted in an order of the court providing for the care and custody of the child. On October 25, 1899, the appellant filed a motion to modify the order, and the court,

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upon hearing, entered a modifying order, providing definitely for the time the child should spend with each of her parents. In December, 1899, in the Scott circuit court, appellee filed her present petition for divorce, alleging cruel treatment, drunkenness, and adultery, and praying for the custody of their infant child, Lizzie. Upon change of venue the cause was put at issue, and tried in the Clark circuit court, resulting in a decree giving appellee a divorce and the custody of the child. The errors complained of are the action of the court in overruling appellant's motion for a new trial and in overruling his motion to modify the decree striking out that part relating to the custody of the child. In the original suit for divorce the complaint filed December, 1898, charges appellant with cruel treatment and failure to make suitable provision for her support. In the complaint before us, filed December, 1899, in addition to cruel treatment, appellant is charged with adultery committed with various persons in the year 1899. The reasons stated in the motion for a new trial are that the decision of the court is contrary to law, and is not sustained by sufficient evidence.

There is evidence sustaining the charge of adultery, and to justify the finding that appellee is a suitable person to be intrusted with the custody of the child. As to that part of the complaint which asks for the custody of the child, appellant, as we have stated, pleads former adjudication. It remains to determine whether the court erred in refusing to strike out of the decree the order awarding appellee the custody of the child; or, differently stated, is the judgment of the Scott circuit court in the habeas corpus proceedings conclusive until set aside or modified in said cause? Section 1058, Burns' Rev. St. 1901 (section 1046, Horner's Rev. St.), makes it the duty of the court in decreeing a divorce to "make provision for the guardianship, custody, support, and education of the minor children of such marriage." Since this appeal was taken, the supreme court of this state, in Stone v. Stone, 64 N. E. 86, have held that it is the duty imposed upon the trial court to make such provision irrespective of the issues in the cause or of the wishes of the parents because it springs from the public interest in the proper training and education of children. The opinion further holds that the court has a continuing jurisdiction during the minority of the child to make from time to time such orders and modifications in reference to the care of minor children as are deemed expedi ent, and that a reservation in a decree to so modify the order is not essential; overruling Sullivan v. Learned, 49 Ind. 252, cited by appellee's counsel. The case is followed by this court in Toben v. Toben, 64 N. E. 624. It has been frequently held that the decree of a court as to the custody of a minor child is never final. The writ of habeas corpus

was asked upon the ground that appellant had disobeyed the order of the court in the former suit for divorce. The action was against appellant, his father, and brother upon an alleged disobedience of the order of the court made in the suit for divorce. The issues were not the same in the cause before us and the habeas corpus proceeding. The decision in the habeas corpus proceeding was at most only conclusive in respect to the facts and circumstances then existing, and not as to such as might arise afterward. Hurd, Hab. Corp. 462. A parent shown at one time to be a suitable person to be intrusted with the care of a minor child may at another time, by his subsequent conduct, be shown to be totally unfit for the trust. Certain acts of adultery charged in the complaint before us were not in issue In the habeas corpus proceedings. They occurred subsequent to the institution of the proceedings last named. To hold that the right of either the mother or the minor child was concluded by such proceeding in an action affecting the marital relation of the parents would be an unwarranted application of the rule of estoppel.

There was no conflict of jurisdiction between the Scott and Clark circuit courts. Judgment affirmed.

MAXWELL v. WRIGHT et al.1 (Appellate Court of Indiana, Division No. 1. Oct. 9, 1902.)

DEFECTIVE VERDICT

UNMENTIONED DE-
FENDANTS-VENIRE DE NOVO-FOR-

GERY-SURETIES-ESTOPPEL.

1. A verdict, "We, the jury, find for the defendant W.," not being defective in form as to such named defendant, affords no ground for a venire de novo as to him, though two other defendants sued on the same obligation were not mentioned in the verdict.

2. Unless it appears that the purported sureties on a note fraudulently and purposely withheld information that the note was a forgery at a time when payment thereof could have been enforced from property held by the principal, such sureties will not be estopped from claiming that the note was a forgery.

Appeal from circuit court, Steuben county; E. D. Hartman, Judge.

Action by William H. Maxwell against Henry Wright and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Willis Rhoads, for appellant. Best, Bratton & Yotter and Croxton & Powers, for appellees.

HENLEY, P. J. This was an action commenced by appellant on a promissory note executed by appellees, as is alleged in the complaint, on the 19th of January, 1899, and due in one year. The complaint is in one paragraph, and its sufficiency was not questioned. Appellees Henry Wright and Cyrus Wright filed separate answers denying the

was

execution of the note. Each answer properly verified. Appellee Monroe F. Wright was defaulted. Appellant filed separate re plies to the answers of Henry Wright and Cyrus Wright. The replies filed by appellant to the separate answers of appellees Henry and Cyrus Wright were identical. They allege the execution of the note sued on; that appellees were brothers; that it was a common occurrence, and well known, that appellees were accustomed to sign notes for and with each other; that the appellee Monroe F. Wright was the principal of said note; that, when the note became due, appellant notified each of the appellees separately that he expected the note to be promptly paid, and each of the notices was received by the party for whom it was intended; that the appellees Henry Wright and Cyrus Wright well knew that the note was a forgery, and failed to notify appellant; that the appellant relied upon said appellees, and refrained from taking steps to collect the amount of said note, which he could have done had he known at the time that it was a forgery; that at that time Monroe Wright, the principal in said note, had the means to pay the same, but that he afterwards disposed of his property and secretly left the state; that the appellees Henry and Cyrus Wright assisted their said brother, Monroe F. Wright, to leave the state, and, after he had so left, they then made known to the appellant that the note was a forgery. The separate demurrer of Henry and Cyrus Wright to appellant's reply was overruled. The cause was tried by a jury, and a general verdict returned, which, omitting the caption and signature, was as follows: "We, the jury, find for the defendant Henry Wright." At the same time the jury returned answers to certain interrogatories propounded to them by the parties. The appellant filed a motion for a venire de novo, which motion was overruled by the court as to the defendant Henry Wright, and sustained as to the appellees Cyrus and Monroe F. Wright, and a venire de novo was, by the court, ordered as to the last-named appellees. Appellant also filed a motion for a new trial, which was overruled as to the appellee Henry Wright, and sustained as to Cyrus and Monroe F. Wright, and a new trial as to the last-named appellees was ordered by the court.

The principal contention of counsel for appellant is that the court erred in overruling appellant's motion for a venire de novo as to the appellee Henry Wright. Counsel say in their brief, "The motion for a venire de novo was based upon the failure of the jury to find on all the issues made." In support of this the cases of Bosseker v. Cramer, 18 Ind. 44, and Whitworth v. Ballard, 56 Ind. 279, and cases cited, are relied upon to sustain the proposition. The cases cited and other cases following them sustain the appellant's position, but it appears that the supreme court in later cases overruled the doctrine an

1 Rehearing denied. Superseded by opinion, 67 N. E. 267.

nounced in Bosseker v. Cramer, supra, by implication, and in still later cases expressly overruled the last-named case. In Board v. Pearson, 120 Ind. 426, 22 N. E. 134, 16 Am. St. Rep. 325, the supreme court, by Elliott, C. J., reviewed the cases in this state upon this point, and expressly overruled the case of Bosseker v. Cramer, supra, and squarely held that the motion for a venire de novo must be denied, although the verdict does not find upon all the issues. See, also Zimmerman v. Gaumer, 152 Ind. 552, 53 N. E. 829; Exploring Co. v. Painter, 1 Ind. App. 587, 28 N. E. 113; Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, 50 Am. St. Rep. 266. We think the rule announced in the later cases the better one, and it is certainly the only rule that could in good reason be adopted so long as the law remains that a venire de novo reaches matter of form only, and is effective only when the finding and verdict are so defective that no judgment can be rendered. In the case at bar the verdict is not defective in matter of form. It is perfect as to the appellee Henry Wright, and the trial court, by granting appellant a new trial as to the two defendants not mentioned by the jury in their general verdict, has placed appellant in the best possible position that he could be placed without doing injustice to one who has submitted to trial, and had a clear, unequivocal verdict returned in his favor by the jury. Appellee Henry Wright was not in any position to ask the court to require the jury to perfect their verdict and to inIclude therein his codefendants. He had received at the hands of the jury all that he could ask. The verdict was in his favor on all the issues. It was not defective in matter of form as to him. Appellant could have, and we think should have, moved the court to require the jury to perfect their verdict if he desired it to include Cyrus and Monroe F. Wright, and this view is sustained by the case of Adams v. Main, 3 Ind. App. at page 240, 29 N. E. 792.

It is also insisted by counsel for appellant that the trial court erred in overruling appellant's motion for judgment on interrogatories. It is argued that the facts so found estopped appellees from claiming that the note was a forgery. In the case of Kuriger v. Joest, 22 Ind. App. 633, 52 N. E. 764, 54 N. E. 414, this court held that, to constitute an estoppel in such a case as the one at bar, it must appear that the party to be estopped fraudulently and purposely kept from the holder of the note the information that his signature thereto was not genuine, and that it must appear that the principal in the note at the time had property out of which the payment of the note could be enforced. The facts found by the jury fall far short of measuring up to the requirements of this rule. We think the trial court has placed appellant in the best possible position that the pleadings and verdict of the jury would warrant. Judgment is therefore affirmed.

(29 Ind. App. 512)

STUCKWISCH et al. v. HOLMES. (Appellate Court of Indiana, Division No. 2. Oct. 7, 1902.)

FRAUDULENT CONVEYANCE PLEADING-LEVY BY CONSTABLE-INSOLVENCY OF DEFENDANT-ALLEGATION.

1. Since a constable has no power to levy an execution on real estate, an allegation, in a complaint to set aside an alleged fraudulent conveyance, that an execution had been placed in the hands of the constable, and by him returned nulla bona, was an insufficient allegation of defendant's insolvency.

Appeal from circuit court, Marion county; Henry C. Allen, Judge.

Action by Ira M. Holmes against Mary R. Stuckwisch and others. From a judgment in favor of plaintiff, defendant Mary R. Stuckwisch appeals. Reversed.

W. B. Schwartz, for appellant. Ira M. Holmes, in pro. per.

WILEY, C. J. This cause was transferred from the supreme court. Appellee was plaintiff, and sued appellant to set aside a conveyance of real estate as fraudulent, and to subject the same to the payment of debts. A joint demurrer to the complaint was overruled, and also appellant's motion for a new trial. By the assignment of error these rulings are challenged, and they are the only questions for decision.

The complaint avers that appellee recovered a judgment before a justice of the peace in Marion county against appellant, Mary R. Stuckwisch; that he caused to be filed in the clerk's office of the Marion circuit court a transcript of said judgment; that, at the date of the rendition of said judgment, said judgment defendant owned certain real estate in said county, which said real estate is specifically described; that prior to the filing of said transcript, but subsequent to the rendition of said judgment, pursuant to a fraudulent combination between the said Mary, her husband, and her son Henry, the said Mary and her husband conveyed said real estate to her son Henry, with the fraudulent intent to hinder and defraud her creditors, and that the said Henry accepted said conveyance with a full knowledge of said judgment, and knowingly and with intent to hinder and defraud the creditors of said Mary. It is also averred that there was no valuable consideration for said conveyance; that appellee procured to be issued upon said judgment an execution; that said execution was placed in the hands of a constable, and was by him returned "Nulla bona." The prayer of the complaint is that the said conveyance be set aside, and the real estate subjected to the payment of appellee's judgment. It will be observed from the material averments of the complaint, as recited, that there is no averment that appellant. Mary R. Stuckwisch, was insolvent at the time of the conveyance, nor that at the time of the conveyance, and when the action was brought, she did not have enough property

subject to execution to pay her debts. It cannot be successfully contended that because it is shown that an execution was issued by the Justice of the peace, placed in the hands of a constable, and he returned it indorsed "No property found," this is a sufficient allegation of insolvency, or that the judgment defendant did not have, when the conveyance was made, and when the action was commenced, enough property, subject to execution, to pay her debts. A constable has no authority to levy an execution upon real estate. His power is exhausted when he fails to find personal property upon which to levy. It does not necessarily follow that, because he found no personal property upon which to levy, the judgment defendant did not have real estate subject to execution. Ample provision is made by statute (section 626, Burns' Rev. St. 1901), by which an execution may be issued by the clerk of the circuit court upon a judgment a transcript of which has been duly filed in his office. If a debtor has sufficient property, subject to execution, to pay his debts, after making a conveyance of real estate, such conveyance will not be regarded as fraudulent. A person may make such disposition of his property as he pleases, so long as he does not deprive others of any rights they possess. It has been repeatedly held that, in an action by a creditor to set aside a conveyance as fraudulent, it must be alleged in the complaint that at the time of the conveyance, and when the suit is brought, the debtor did not have enough property, subject to execution, to pay his debts. Brumbaugh v. Richcreek, 127 Ind. 240, 26 N. E. 664, 22 Am. St. Rep. 649; McConnell v. Bank, 130 Ind. 127, 27 N. E. 616; Line v. State, 131 Ind. 468, 30 N. E. 703; Winstandley v. Stipp, 132 Ind. 548, 32 N. E. 302; Crow v. Carver, 133 Ind. 260, 32 N. E. 569; Petree v. Brotherton, 133 Ind. 692, 32 N. E. 300; Wilson v. Boone, 136 Ind. 142, 35 N. E. 1096. The complaint is fatally defective in failing to make these necessary averments.

Judgment reversed, and the trial court is directed to sustain the demurrer to the complaint.

(29 Ind. App. 554)

STATE ex rel. WYATT v. BAGBY, Constable, et al. 1

(Appellate Court of Indiana, Division No. 1. Oct. 9, 1902.)

APPEAL-JURISDICTION-CASE WITHIN JUSTICE'S JURISDICTION.

1. An action for $30, brought in the circuit court on the bond of a constable, being within the jurisdiction of a justice of the peace (Burns' Rev. St. 1901, § 8050), an appeal therein, presenting the question of construction of the statute relating to fees of constables (section 8050), lies to the supreme court; section 1337f prohibiting appeal in a civil case within the jurisdiction of a justice of the peace, except as provided by section 1337h, providing for appeal to the supreme court in such a case in which there is presented the question of the proper construction of a statute.

'Transferred to Supreme Court. See 67 N. E. 519.

Appeal from circuit court, Allen county, John H. Aiken, Special Judge.

Action by the state, on the relation of Jacob Wyatt, against Albert L. Bagby, constable, and others.. Judgment for defendants. Plaintiff appeals. Transferred to supreme court.

Gedke & Ballou, for appellant. W. & E. Leonard, for appellees.

ROBINSON, J. An affidavit having been filed before a justice of the peace against Wyatt, a warrant for his arrest and a subpœna for a prosecuting witness were issued and delivered at the same time to Bagby as constable. The defendant, Wyatt, and the witness lived near each other, 11 miles distant from the justice's office. Bagby served both the warrant and the subpoena upon the same occasion or trip, and charged and collected separate mileage on each writ for the total number of miles traveled. Appellant claims the mileage fees were excessive, and sued in the circuit court upon Bagby's official bond, asking $30 damages.

Counsel have argued the merits of the controversy, but it must first be determined whether this court has jurisdiction. Constables are required to give official bonds. Section 8050, Burns' Rev. St. 1901. The statute provides that "official bonds of officers may be sued on before justices, where the damages claimed for breach of the condition thereof do not exceed two hundred dollars." Section 1512, Id.; Evans v. Shoemaker, 2 Blackf. 237; Olds v. State, 6 Blackf. 91. Section 6 of the act of March 12, 1901 (Burns' Rev. St. 1901, § 1337f), provides that no appeal shall hereafter be taken to the supreme court or to the appellate court in any civil case which is within the jurisdic tion of a justice of the peace, except as provided in section 8 of that act. The transcript in this case was filed on the 15th day of May, 1901. The appeal was therefore taken after the act of March, 1901, went into effect. Fitch v. Long (Ind. App.) 64 N. E. 622; Railway Co. v. Watkins, 157 Ind. 600, 62 N. E. 443. This brings the case within section 6, supra, as this is a civil case which is within the jurisdiction of a justice of the peace. Section 8 of the act of March 12, 1901 (section 1337h, Burns' Rev. St. 1901), provides that "every case in which there is in question and such question is duly presented, either or the proper construction of a statute, and which case would be otherwise unappealable by virtue of section six (6) or section seven (7), shall be appealable directly to the supreme court for the purpose of presenting such question only." Under the above provisions, no appeal, after that act is effective, can be taken to this court in any civil case which is within the jurisdiction of a justice of the peace. And no appeal can be taken to any court in any case, unless the case falls with

in one of the exceptions enumerated in section 8. If the case is within an exception, jurisdiction is exclusively in the supreme court. The question presented by the record is the proper construction of the statute relating to fees of constables. Section 8060, Burns' Rev. St. 1901. As the case is within the jurisdiction of a justice of the peace, and the question presented is the proper construction of a statute, jurisdiction is in the supreme court. The case is therefore transferred to the supreme court.

(29 Ind. App. 519) CLEVELAND, C., C. & ST. L. RY. CO. et al. V. SCOTT.

(Appellate Court of Indiana, Division No. 1. Oct. 8, 1902.)

INJURY TO EMPLOYE-MASTER'S LIABILITYPLEADING-ASSUMPTION OF RISK

-INSTRUCTION.

ones

1. A complaint for injury to plaintiff while in defendant's employ in repairing a telegraph line by replacing old poles with new where required, alleged in the first paragraph that L. was foreman of the gang, to whose orders and directions plaintiff was bound to and did conform; that L. had full charge of the work; that it was L.'s duty to test all the poles, and to have all those not sound enough and fit to remain replaced with good ones; that, after this was done for some distance, it was plaintiff's duty, acting under orders of L., to fasten the wires on those that had been tested or had replaced defective ones; that the wires had to be stretched, and that, in order to stretch them, L. selected a pole from which to stretch them; that, as there was a great strain on this pole, it had to be stayed; that to stay it a wire had to be placed over its top, and extended to the foot of the next pole, and made fast after being stretched; that L. selected an old pole, which he had negligently failed to test, from which to stretch the wires; that while plaintiff was at the top of it, after climbing it at L.'s order to adjust the stay wire, L. negligently ordered others to pull on the wire; that as soon as they pulled the pole broke off; that it was rotten under the ground, and wholly unsafe for the use to which it was put, which would have been discovered had L. properly examined it. The second paragraph was the same, except that it alleged L. so negligently tested the pole that he did not discover its condition. Held that, it not being alleged that the pole fell because of a defect in its condition, the complaint, while stating a cause of action under the second subdivision of Employers' Liability Act 1893, § 1 (Burns' Rev. St. 1901, § 7083), does not state one within the first subdivision, the section providing that a corporation shall be liable for injury to an employé-First, when the injury is suffered by reason of a defect in the condition of the ways, works, plant, tools, and machinery connected with or in use in the business of the corporation, when the defect was the result of its negligence, or that of some person intrusted by it with the duty of keeping them in condition; and, second, where such injury resulted from negligence of any person in its service, to whose order or direction the employé at the time of the injury was bound to conform, and did conform.

2. An instruction in an action for injury to an employé, purporting to set forth all the necessary ingredients of a cause of action, should include the nonexistence of knowledge

2. See Master and Servant, vol. 34, Cent. Dig. §§ 844, 846, 907.

by plaintiff of the danger; nonassumption of the risk being for him to allege and prove.

Appeal from circuit court, Clinton county; James V. Kent, Judge.

Action by William M. Scott against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

John T. Dye, L. J. Hackney, and Chambers, Pickens & Moores, for appellants. Crane & Anderson and M. W. Bruner, for appellee.

BLACK, J. The appellee's complaint against the appellants, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the Western Union Telegraph Company, filed in the Montgomery circuit court, contained two paragraphs. In the first, after introductory matter, it was shown, in substance, that a telegraph line was maintained, operated, and controlled along the line of the railroad of the railway company in Montgomery county in common and for the benefit of both of the appellants, and was used by the railway company in running its trains, and was necessary therefor, and the movement and running of the trains were controlled by means of the telegraph lines; that the telegraph line along the railroad in that county, during the year 1897, was out of repair, and in need of repair; that many of the poles in the line were old, rotten, and defective, and new poles were required to be placed instead of them; that some of the poles had been put in a year or two before, and were good and strong, and fit to be left standing; that in October, 1897, the appellants were engaged in repairing the telegraph line by removing the old and defective poles and replacing them with new ones; that in the prosecution of this work the appellants employed the appellee, who is a lineman, to assist in this work; that other persons were employed in the work, and they and the appellee composed a gang of some 16 men; that over these men the appellants placed one Lewis W. Roseman as foreman, under whose orders and directions the gang worked, and to whose orders and directions the appellee and said men were bound to conform and did conform in the prosecution of the work; that said foreman had full charge of the work and of the men engaged therein; that new telegraph poles were scattered and distributed along the line of said road, and the appellee was directed by said foreman to go on ahead of the remainder of said men, and to cut the gains in said poles while lying distributed along the road and on the ground, which gains are necessary to hold the cross-arms near the tops of the poles, and appellee did perform this work as directed by the foreman; that while the appellee was engaged in this work, the foreman, who was in charge of the remainder of the gang, was engaged in removing the defective poles and in replacing them with new ones ready to put on the wires; that it was

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