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Washer v. The Allensville, Center Square and Vevay Turnpike Company.

Courts.- Adjourned Terms.— Reason for Adjournment.—The act of March 7th,

1877, regarding adjourned terms, Acts 1877, Reg. Sess., page 28, repealed the act of February 12th, 1855, R. S. 1881, section 1333, but not section

793, 2 R. S. 1876, p. 313, R. S. 1881, section 1332. SAME.-Jurisdiction.--An order November 6th, 1878, reciting that the Oc

tober term would expire by limitation November 9th, 1878, leaving business pending and undisposed of for want of time, appointing an adjourned term for Monday, November 11th,1878, and directing publication, supplemented by a like order November 9th, 1878, and due proof of the publication of a copy of the order in the designated paper, November 7th, 1878, show a substantial compliance with the statutes, and that the court meeting Monday, November 11th, 1878, had jurisdiction of parties appearing without objection, and of the subject matter of their cause

tried before a jury. EVIDENCE. — Turnpike Company.- Lost Articles of Association.Copy.—Where

it is proved that the original articles of association of a turnpike company are lost, the record of the copy filed in the recorder's office may be

given in evidence. SAME.- Books of Corporation. The books of a corporation are competent

evidence for and against its members in an action between the corpora

tion and its members. PRACTICE.— Instruction.-- Directing Verdict.—The court may, in a proper

case, when the evidence is all in, direct the jury to find a verdict in favor

of the party entitled to it. SAME.-Supreme Court.- Record.— New Trial.—Unless the record elsewhere

show the action of the court complained of in a motion for a new trial,

no question arises for the decision of the Supreme Court. TURNPIKE.Location. The description of a turnpike in the articles of association of the company organized to build it, is a location. From the Switzerland Circuit Court. S. Carter and J. B. McCrellis, for appellant. W. D. Ward and T. Livings, for appellee.

BICKNELL,C.C.—This was an action by the appellee against the appellant to recover fifty dollars, the price of two shares of the capital stock of said company subscribed for by the appellant.

A demurrer to the complaint for want of facts sufficient, etc., was overruled.

The answer was in two paragraphs, duly verified. The first paragraph was a general denial of “every allegation of the complaint, including the execution of the instrument sued on.”

Washer v. The Allensville, Center Square and Vevay Turnpike Company.

The second paragraph was a plea of nul tiel corporation.

The issues were tried by a jury, who returned a verdict for the plaintiff, the appellee. From the judgment on that verdict this appeal was taken.

A motion for a new trial was overruled.
The appellant assigns errors as follows:
1. In overruling the demurrer to the complaint.

2. That the court had no jurisdiction of the subject of the action and no jurisdiction to try the action, at the time it was tried.

3. That the court erred in overruling the motion for a new trial.

The complaint avers the corporate existence of the plaintiff, for the purpose of building a gravel road from Allensville to the end of the Vevay, Mt. Sterling and Versailles turnpike in Switzerland county, Indiana, in all a distance of five miles; that the articles of association of said corporation were filed in the recorder's office of said county on the second day of January, 1870; that a board of directors of said corporation was duly elected by its stockholders, and duly qualified; that said directors entered upon the discharge of their duties; that the defendant subscribed for two shares of $25 each of the capital stock of said company for the construction of said road ; that said board, before this suit was commenced, made an order, requiring the subscribers to said stock to pay the amount of their unpaid subscriptions to David Scott, the treasurer of said corporation, at his residence in Jacksonville, on or before April 1st, 1872; that notice of said order was duly given; by publishing the same in the Vevay Reveille, on March 2d, 1872, the same being a newspaper printed and published in said county; that said subscription is due and unpaid, and the payment thereof has been unreasonably delayed, and that plaintiff is entitled to interest thereon from said April 1st, 1872. Wherefore, etc.

A copy of the said articles of association was annexed to the complaint and made part thereof, and was as follows:

Washer v. The Allensville, Center Square and Vevay Turnpike Company.

“We, whose names are hereto subscribed, form ourselves into a corporation for the purpose of constructing and owning a macadamized turnpike from the town of Allensville to the end of the Vevay, Mt. Sterling and Versailles turnpike in Switzerland county, Indiana.

“Said corporation shall be known as the Allensville, Center Square and Vevay Turnpike Company. Said road shall be built and constructed from Allensville to the end of the Vevay, Mt. Sterling and Versailles turnpike, commencing at Allensville and running thence on the Vevay and Lawrenceburgh road, to the State road leading from Vevay to East Enterprise; thence on said highway leading from said Vevay and Lawrenceburgh road to said Vevay and Enterprise road, to Center Square; thence on said Vevay and East Enterprise road, to the end of the Vevay, Mt. Sterling and Versailles turnpike, near the residence of James Brown, or as near the above named route as a good, practicable way for said road can be had ; that the capital stock of said company shall be fifteen thousand dollars, to be divided into shares of twentyfive dollars a share."

Then follow the names and residences of about seventy-five subscribers, with the amounts by them respectively subscribed, aggregating upwards of $2,700, and among them is the defendant's subscription, as follows: “Alexander Washer, Cotton township .

" In the case of Fox v. The Allensville, Center Square and Vevay Turnpike Co., 46 Ind. 31, a complaint, substantially the same as the foregoing complaint, and exhibiting the same articles of association, was held good upon demurrer. And in Atherton v. The Sugar Creek and Philadelphia Turnpike Co., 67 Ind. 334, it was held that from the time the articles of association of a turnpike company are filed in the recorder's office of the proper county, the association is to be deemed a corporation. The same ruling was made in James v. The Greensboro, etc., Turnpike Co., 47 Ind. 379. It was held in Steinmetz v. The

VOL. 81.-6

Washer v. The Allensville, Center Square and Vevay Turnpike Company.

Versailles and Osgood Turnpike Co., 57 Ind. 457, that an irregularity in the election of the directors of a turnpike company is no defence to an action by such company to collect stock subscribed to its preliminary articles of association ; and, in the case above cited, 67 Ind. 334, it was held that the same rule applied to irregularities occurring after the election of directors, which are merely collateral to the direct proceedings necessary to enable the company to collect the stock subscribed to its preliminary articles. In State, ex rel. The Monroe Gravel Road Co., v. Stout, 61 Ind. 143, it was said by this court, that, in a suit by a corporation, every fact necessary to the existence thereof need not be alleged, either generally or specifically. There was no error in overruling the demurrer to the complaint.

As to the second error assigned, the point made is that the court lost its jurisdiction by adjourning the court in a mode not authorized by the statutes.

The statutes in force at the time of said adjournment were the following:

If any judge of the circuit court shall adjourn the court before having gone through the business pending, and before the expiration of the time fixed by law, the record must show the reason for adjournment.” Practice Act, section 793.

“When the business pending in any of the courts of this State shall remain undisposed of at the close of any term of court, the judge may adjourn the court to any other time in vacation, of which notice shall be published in some newspaper of general circulation in the county, and at such adjourned time proceed with the business of the court, as a part of the regular term of said court at which the adjournment was ordered, and all parties, witnesses, jurors and officers shall attend as they were required to do at the regular term.” Acts 1877, Reg. Sess., p. 28, section 1.

The 7th section of this last mentioned act repeals "all laws and parts of laws” inconsistent therewith ; it repeals, therefore, the act of February 12th, 1855, 2 R. S. 1876, p. 14, which Washer v. The Allensville, Center Square and Vevay Turnpike Company.

provided that public notice of the adjournment should“be given in some manner, to be specified by said court;” but section 793 of the Practice Act, not being inconsistent with said act of 1877, is not repealed thereby. Slaughter v. Gregory, 16 Ind. 250.

The record shows that on the 6th day of November, 1878, the court entered upon its order book an order, reciting that the October term of court would expire by statutory limitation on the 9th day of November, 1878, leaving business pending, undisposed of for want of time, and declaring that “an adjourned term is hereby ordered and appointed to begin on Monday, November 11th, 1878, for the transaction and disposition of such business, undisposed of,” and that “such adjourned term continue as part of this, the regular term.”

The order further declared that all parties, witnesses, officers, and petit jurors, should attend said special term without further notice than as therein required, and that notice of the holding of said adjourned term should be given by publication of a copy of said order, certified under the hand and seal of the clerk of the court, in the Vevay Reveille, a weekly newspaper of general circulation, printed and published in said county of Switzerland, such publication to be made in the last issue of said newspaper, next before the time fixed for such adjourned term.

The record further shows that, on the said 9th day of November, another order of the court was entered in the order book, to wit: “The time allotted by law for the continuance of the present term of this court having expired, and there being business pending and undisposed of for want of time, court is now adjourned to the 11th day of November, 1878, at 9 o'clock A. M., at which time an adjourned term will be held, as provided for in an order made and entered of record, on the sixth day of the present month, providing for said adjournment, and pursuant to notice as therein provided, for the disposal of such unfinished business ; court is now adjourned until Monday, November 11th, 1878, at 9 o'clock A. M."

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