Southern Ind. R. Co. v. Indianapolis, etc., R. Co.-168 Ind. 360. 13. RAILROADS.—Location.—Whether Filing Plat of, must Precede Condemnation.-Under $5152 Burns 1901, §3902 R. S. 1881, it is not necessary that the filing of the plat of the location of a railroad shall precede the institution of condemnation proceedings for the right of way. p. 372. 14. SAME.-Location.-Conflicting Claims as to Right of Way.The filing of the map and profile of the right of way of a railroad, in the absence of unnecessary delay, precludes rival companies from appropriating the same lands for a right of way. p. 374. 15. SAME.-Location.-Maps.-Sufficiency.-A map of a proposed railroad right of way, designating a single line through a strip, but giving no information as to the width of the proposed right of way, or whether such line is the median line, is insufficient. p. 374. 16. SAME.-Location.-Recorded Deeds.-The fact that a railroad company secured and recorded deeds to its intended right of way, particularly describing the lands to be used, does not constitute a legal location of such railroad. p. 374. 17. NEW TRIAL. Railroads. Eminent Domain.-Interlocutory Order Appointing Appraisers.-A motion for a new trial is not permissible in presenting for review questions arising upon an interlocutory order adjudging lands subject to appropriation by a railroad company for its right of way, and appointing appraisers to make an award. p. 375. 18. SAME.-Insufficient Evidence.-Contrary to Law.-In civil cases, general assignments that the verdict is not supported by sufficient evidence and that it is contrary to law, are sufficient reasons for a new trial. p. 376. 19. APPEAL.-Assignment of Errors.-Specificness.-New Trial. -Insufficiency of Evidence.-Eminent Domain.-Interlocutory Orders. Assignments of errors, on appeal from an interlocutory order adjudging defendant's lands subject to appropriation for a railroad right of way, and appointing appraisers to make an award, that the evidence was insufficient to support the finding and was contrary to law, present no questions, specific assignments being necessary. p. 376. 20. JUDGMENT.-Motion to Modify.-Where the form or details of a decree are objectionable, a motion to modify same is the proper practice. p. 377. 21. SAME.-Interlocutory.-Subsequent Modification.-Interlocutory orders are subject to subsequent modifications. p. 377. Southern Ind. R. Co. v. Indianapolis, etc., R. Co.-168 Ind. 360. From Owen Circuit Court; Joseph W. Williams, Judge. Condemnation proceeding by the Indianapolis & Louisville Railway Company against the Southern Indiana Railway Company and another. From an interlocutory decree for plaintiff, defendants appeal. Reversed in part. Affirmed in part. Willis Hickam, W. T. Abbott, E. C. Ritsher and Samuel R. Hamill, for appellants. E. C. Field, H. R. Kurrie, J. R. Fowler and J. H. Robinson, for appellee. GILLETT, J.-On March 14, 1906, appellee filed its instrument of appropriation, or complaint, as it is termed by the act of 1905 (Acts 1905, p. 59, $893 et seq. Burns 1905), to condemn, as and for a railroad right of way, a strip of land about nine miles in length, in Owen county. Appellant Southern Indiana Railway Company was made a defendant to the proceeding, as the owner of the real estate, while its codefendant the Equitable Trust Company was joined as a defendant, as a mortgagee. Appellants first appeared specially, and severally moved to quash the service upon them respectively, but their motions to quash were overruled. Several objections were then filed by appellants, and the cause was submitted to the court. During the trial appellee amended its complaint, and appellants, without demurring, severally addressed objections to the amended complaint, and the trial proceeded. Upon the conclusion thereof the court rendered a finding for appellee, that it was entitled to have the lands described in the amended complaint condemned and appropriated for the location, construction and operation of its railroad, and the court thereupon appointed appraisers to assess the damages. From such interlocutory order this appeal is prosecuted. The first question which we are called on to consider is as to the service upon appellant the Southern Indiana Railway Southern Ind. R. Co. v. Indianapolis, etc., R. Co.-168 Ind. 360. Company. The return of the sheriff on the notice. 1. is as follows: "I served this notice this 15th day of March, 1906, by reading the same to agent of the Southern Indiana Railway Company, and by leaving with him a certified copy thereof." By section three of said act of 1905 ($895 Burns 1905), the notice is required to be served in the same manner as a summons in a civil action, and, therefore, we look to $318 Burns 1901, §316 R. S. 1881, for the controlling provision as to service upon a corporation. It was pointed out in Toledo, etc., R. Co. v. Owen (1873), 43 Ind. 405, under a section of the former code substantially similar to $318, supra, that the section fixes three grades of persons upon whom service may be had, and the court then added: "When the service under this section is upon an officer or person of the second or third grade, it should appear that the officer or officers of the higher grade or grades were not found in the county. Unless this shall appear by the return, or in some other proper manner, the service will be insufficient." It therefore appears to us that a return which not only fails to meet this requirement, but which even fails to show either the name of the agent or the character of his agency should be held insufficient, if directly and seasonably questioned. If there has been absolutely no service upon an agent or 2. person upon whom the statute authorizes service in the particular circumstances, we do not perceive how the matter can be said to be cured by $319 Burns 1901, §317 R. S. 1881, for that section presupposes that there has been at least some kind of service upon the party. Appellee's counsel seek to parry the effort to pro cure a reversal as to the Southern Indiana Railway 3. Company, by the contention that the assignment of errors is joint as to the appellants. The introductory part of such assignment is as follows: "The appellants, Southern Indiana Railway Company and Equitable Trust Company both jointly say, and each of them severing Southern Ind. R. Co. v. Indianapolis, etc., R. Co.-168 Ind. 360. from the other separately and severally says, that there is manifest error in the judgment and proceedings in this cause, and in the making and entering of record of the interlocutory order by the court, in this"-then follows a number of specifications of error, separately numbered. The argument advanced by counsel for appellee is that this assignment merely questions the rulings of the trial court in each of the particulars which followed the language above quoted, but as appellants not only jointly, but "each of them severing from the other," assigns error, there is no basis for the claim that the assignment is merely joint as to parties. It is, as we view it, separate as to appellants, by reason of the words of severance, and the remaining language is sufficient to show that the ruling embraced in the assignment is separately questioned. Sibert v. Copeland (1896), 146 Ind. 387; Armstrong v. Dunn (1896), 143 Ind. 433; Carver v. Carver (1884), 97 Ind. 497; Ewbank's Manual, $138. It follows from what we have said that, because of the error of the court in refusing to quash the service as to the Southern Indiana Railway Company, the cause must be reversed as to it. The Equitable Trust Company, whom we shall hereafter designate as the appellant, since it is the only party appellant which is concerned in what follows, contends 4. that the court erred in refusing to set aside the notice and quash the publication as to it. Said appellant, being a nonresident, service was attempted to be procured upon it by publication. The hearing was fixed for April 5, 1906, and publication was had as to appellant on March 15, 22, and 29, 1906. It is contended that there should have been a publication for the full period of twenty-one days, and that five days should have elapsed between the period of publication and the day set for the hearing. Section four of the act of 1905 (Acts 1905, p. 59, $896 Burns 1905) provides that the proof of service by publication shall show "publication for three successive Southern Ind. R. Co. v. Indianapolis, etc., R. Co.-168 Ind. 360. * weeks in a weekly newspaper of general circulation, * the last publication to be five days before the day set for the hearing." This certainly does not require four publications, and as the hearing may be set, according to the statute, five days after the last publication, the lawmaking power must have intended, by requiring proof of publication for three successive weeks in a weekly newspaper, three publications in a weekly newspaper on its weekly days of issue, and regarded that "as publication for three successive weeks." Bachelor v. Bachelor (1804), 1 Mass. 256; Swett v. Sprague (1867), 55 Me. 190; Alexander v. Alexander (1889), 26 Neb. 68, 41 N. W. 1065. Any other construction would mean that at least eleven days must elapse after the third publication. Be5. sides, as the service was not questioned under a special appearance, except by a motion to set aside the notice and quash the publication, it must be held that there was no error in the court's ruling, for at the least. the service would have been sufficient for the regular return day of the next term, and, therefore, the defect, if any, afforded only a ground for delaying the hearing. See Bratton v. Bratton (1881), 79 Ind. 588. The description of the land, as set forth in the publication, was not 6. insufficient because it did not in terms state that the land was in Owen county, Indiana. The description showed the congressional township and range, so that land of that description could be located, if in Indiana, and when to this fact is added the further consideration that the statute requires that the action should be commenced in the county where the land lies, it is apparent that the notice was sufficient as to the description of the lands. See White v. Stanton (1887), 111 Ind. 540; Hyland v. Brazil Block Coal Co. (1891), 128 Ind. 335. It is objected that the complaint on its face discloses that appellee was seeking to condemn property which was |