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Harness et al. v. Harness et al.
that such verdict was not sufficient to authorize the rendition of a judgment of partition thereon, but their motion was overruled.
The court then decreed that partition be made in substantial accordance with the prayer of the complaint, except that the lands received by the defendants William and Lewis, from their father, were not taken into account as advancements, and portions of the lands ordered to be divided were directed to be set off to them in the same manner as to the other surviving children of the decedent, and partition was made accordingly.
The plaintiffs have appealed and assigned error upon the refusal of the court to grant a venire de novo.
The verdict in this case was quite informal and in many respects, at least, technically insufficient as against any of the parties in a condition to complain of it.
The court below might, with propriety, have issued a venire de novo instead of rendering judgment on the verdict, but are the appellants in a position to complain of the action of the court in that respect, conceding it to have been somewhat questionable and irregular?
The evidence is not before us, but there is enough in the record to indicate that the principal and, indeed, only real contest at the trial, was whether certain advancements had been made to the appellees William and Lewis, by their father, as charged in the complaint. All the other allegations of the complaint appear to have been practically admitted, either by the pleadings, or at the trial, and the verdict was seemingly framed, and the decree of partition rendered, upon that theory.
The verdict must be considered, what it was doubtless intended to be, a special verdict, and on the subject of the alleged advancements it found specially against the appellants.
As has been said, the decree of partition was in substantial accordance with the prayer of the complaint, except in so far
Easter v. Acklemire et al.
as the jury had specially found certain facts alleged in it not to have been sustained by the evidence.
In other words, upon all questions as to which it is complained there was either no finding, or a defective finding, the decree was in favor of the appellants.
We are therefore of the opinion that whatever defects there may have been, abstractly considered, in the verdict, such defects were, as to the appellants, cured by the decree of partition and subsequent proceedings under it, and, as no one else has objected, there is no reason for disturbing the judgment.
Other questions are incidentally discussed by counsel, but they are not presented in such a way as to require us to consider them.
The judgment is affirmed, with costs.
EASTER v. ACKLEMIRE ET AL.
SUPREME COURT.-Dismissal.-Waiver.-A motion to dismiss an appeal
From the Clay Circuit Court.
J. A. McNutt, for appellant.
T. W. Curtis and E. S. Holliday, for appellees.
Easter v. Acklemire et al.
FRANKLIN, C.-This action was brought by appellees against appellant and one Henderson,on a Supreme Court appeal bond. Appellant demurred to the complaint. The demurrer was overruled, and an exception reserved. The ruling upon the demurrer is the only error assigned.
The cause was submitted in this court May 20th, 1881.
On the 5th of October, 1881, appellees filed a motion to dismiss the appeal, for the reason that Henderson, the co-judgment defendant, did not join in the appeal, and was not made an appellee in the assignment of errors, with the proper notice served upon him.
In the recent decisions, this court has been holding that these preliminary questions, not affecting the merits of a cause, are waived by not being made before the submission. Therefore, the motion to dismiss the appeal should be overruled.
The objections to the complaint are, that it shows that the bond was not approved by the court, and the time given in which to file it was left blank in the record entry giving the time.
It is insisted that the provisions of the statute were not complied with in the giving of the bond, and that it is, therefore, invalid, and can not bind appellant as surety thereon.
It is alleged in the complaint, that the approval of the security by the court was by agreement waived, and that the bond was filed within the time allowed by the court.
But it is insisted by appellant, that the approval of the security by the court could not be waived, and in support thereof we are referred to the case of Ham v. Greve, 14 Ind. 531.
In that case the complaint did not show that the penalty of the bond was fixed by the court, or that the court directed in what time the bond should be filed, or that it was filed within the time directed, or when the transcript was filed, nor was it alleged that execution and other proceedings were stayed upon the judgment below during the pendency of the appeal in this court, for which omissions the complaint was held bad. In the case under consideration, the complaint contains sufficient
Easter v. Acklemire et al.
averments in relation to each one of said omissions, and avers an express waiver of the court's approving the security, which make the complaint good according to the case above cited.
In the case of Jones v. Droneberger, 23 Ind. 74, it was held that "the object and effect of the bond were, or were intended to be, to stay execution on the judgment below, and make the appellee secure during the pendency of the appeal. The bond was for the individual benefit of the appellee; and the provisions in the statute requiring the court to approve it in term time, and the clerk in vacation, were inserted for the purpose of securing a good bond for the appellee, and of creating an arbiter to decide between the parties where they might not be able to agree as to what, in the given case, was a good bond; and the question is, can not the parties waive the approval of the court or clerk in any given case, where their own individual interests are alone at stake, and mutually agree upon a bond? If they can, and do so, the bond given in such case is valid. Delay of execution is a good consideration for the bond. And if they can make such waiver, we must presume it was shown to have taken place in this case, in the original suit on the bond, as the evidence is not in the record, and all presumptions must be in favor of the judgment. We think the waiver could be made." See, also, Smock v. Harrison, 74 Ind. 348.
In the case at bar, the record shows that time was given by the court within which to file the bond, but the number of days was left blank; the complaint avers that it was filed within. the time fixed by the court and, with the allegation of an express waiver by the parties of the approval of the security by the court, we think the complaint stated sufficient facts to constitute a good cause of action, and that there was no error in overruling appellant's demurrer to it.
The judgment below ought to be affirmed.
PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment below be and it is in all things affirmed, with costs.
81 166 129 339
81 166 152
City of Lafayette v. Allen.
CITY OF LAFAYETTE v. ALLEN.
NEGLIGENCE.-City.-Complaint.-Knowledge of Defective Machinery.-Personal Injury.-Complaint by an employee against a city for personal injury, averring that the injuries resulted from defects in a fire engine of which he had charge, which were known to the defendant and unknown to the plaintiff. It was objected on demurrer that it should have been alleged that the defects were known to some proper officer of the city. Held, that the objection was insufficient.
SPECIAL VERDICT.- Venire de novo.-Practice.-No finding should be made in a special verdict as to facts upon which there was no evidence, but an issue on which no facts are found should be regarded as not proved by the party having the burden of that issue, and silence as to such issue is not ground for a venire de novo.
SAME.-New Trial.-If a special verdict ought to have found facts which are not found, the remedy is by motion for a new trial, on the ground that the verdict is contrary to law.
From the Tippecanoe Circuit Court.
J. A. Stein, R. P. Davidson and J. C. Davidson, for appellant.
R. P. De Hart, J. R. Coffroth and T. A. Stuart, for appellee.
BICKNELL,C. C.-This was an action by the appellee against the appellant, to recover damages for personal injuries.
The complaint avers that the appellant employed the appellee as an engineer, and put him to work upon one of her steam engines, which was old, worn-out, defective, and dangerous, and was known to be such by the appellant; that the appellee went to work with the engine, pumping up water for the appellant's water pipes, without knowledge of any defect in the engine, and without any fault on his part, and was badly burned and crippled for life, by the bursting of the boiler, which happened in consequence of the said defective, wornout and dangerous condition of the engine.
A demurrer to this complaint, for want of facts sufficient, etc., was overruled, and this is one of the errors assigned by the appellant.