[NOTE. The citation Ingram v. Jeffersonville, etc., Transit Co., 532, 537 (2) indicates that the opinion begins on page 532, that the point cited is on page 537, and that the point is numbered (2) in the margin.-REPORTER.]
ACCIDENT INSURANCE
See INSURANCE.
ACCOMMODATION
Surety, test, see PRINCIPAL AND SURETY.
Deeds.-Suficiency.-Certificate of Foreign Notary.-A deed executed in another state conveying land in this state acknowledged by each of the grantors before a notary public with indications that a seal was attached and that the acknowledgments of the grantors' wives were taken out of the hearing and presence of their husbands sufficiently complied with §§476, 3965, 3982 Burns 1914, §§460, 2933, 2947 R. S. 1881, as to notary's certificates and acknowledgment of instruments, to entitle the instrument to be recorded, and such deed was admissible in evidence as against the objection that it was not properly acknowledged. Ingram v. Jeffersonville, etc., Transit Co., 532, 537 (2).
ACQUIESCENCE
See ESTOPPEL 4.
Construction, in insurance contracts, see INSURANCE 7, 43.
ADMISSION
See PLEADING 3, 10.
Estoppel of wife, loan, see HUSBAND AND WIFE 3-7.
ADVERSE POSSESSION—
See also TRESPASS.
Elements.-Burden of Proof.-To support a claim of title by adverse possession, the possession must be hostile under a claim of right, actual, open and notorious, exclusive and continuous, and, in an action to quiet title predicating ownership on adverse possession, each of the elements necessary to such possession is an independent ultimate fact, the burden of showing which is on the party asserting such a title.
Benedict v. Bushnell, 365, 368 (1).
In policy, construction, see INSURANCE 17.
In wills, construction, see WILLS 1.
Parol evidence, admissibility, see CONTRACTS 2, 3.
AMENDMENT-
Of assignment of errors, time, see APPEAL 16.
When deemed made, see APPEAL 50.
Building, separate ownership, knowledge of grantee, effect, see
FIXTURES 2.
Appeal from board of county commissioners, see COUNTIES.
Appeal from survey of county surveyors, see BOUNDARIES.
Appeal from Industrial Board, see also MASTER AND SERVANT
27-101.
Jurisdiction on appeal, see COURTS.
Transfer of case, effect, jurisdiction of Supreme Court, see
COURTS 5.
1. Right to Appeal.-Final Judgment.-Statute.-Under §324
Burns 1914, §320 R. S. 1881, providing that in an action against
defendants severally liable, plaintiff may proceed against those
served, and afterwards proceed against those not served, where,
in an action against two defendants, principal and surety, serv-
ice was obtained, only on the surety, judgment entered on the
sustaining of the surety's demurrer to the complaint, and plain-
tiff's refusal to plead further was a final judgment from which
an appeal will lie, though the case was continued as to the
defendant not served, since the judgment rendered adjudicates
all the issues presented by the pleadings as to all the parties
actually before the court.
Lake Mich. Water Co. v. U.S. Fidelity, etc., Co., 141, 145 (2).
II. RESERVATION IN TRIAL COURT OF GROUNDS OF REVIEW.
See also MASTER AND SERVANT 83.
2. Questions Reviewable.-Ruling on Demurrer.-Statute.-Since
the enactment of §348 Burns 1914, Acts 1911 p. 415, an assign-
ment of error that the complaint does not state facts sufficient
to constitute a cause of action presents no question for review.
Aufderheide, Trustee, v. Heward, 286, 288 (2).
3. Review. Assignment of Errors.-Insufficiency of Complaint.
-Statute.-Since the enactment of §348 Burns 1914, Acts 1911
p. 415, the sufficiency of a complaint for want of facts cannot
be assailed for the first time by assignment of error on appeal.
Riley v. First Trust Co., Admr., 577, 578 (1).
4. Exceptions.-When Taken.-Statute.-Scope and Application.
-Section 656 Burns 1914, §626 R. S. 1881, providing that a
party objecting to any decision of the court must except at
the time the decision is made, did not require defendant to
except at the time to an order restoring to the docket an action
dismissed at a previous term for want of prosecution, where
the order was made on the verbal motion of plaintiff, without
notice to or appearance by defendant, since the court did not
have jurisdiction over his person, so that the ruling on the
motion to redocket was not binding on him.
Johnson v. First Ñat. Bank, etc., 629, 633 (2).
5. Improper Designation. - Statute. - Under $1 of the act of
1917, Acts 1917 p. 523, providing that parties named in an
appeal shall be properly before the court for all purposes,
whether they are named as appellants, or appellees, and that
the improper designation of parties shall not affect the juris-
diction of the court, the Appellate Court would be required, if
it had jurisdiction in an appeal, to set aside an order of dis-
missal, made because a party appellee had been named as an
appellant, and decide the case on its merits.
Nation v. Green, 136, 140 (5).
6. Right of Appeal.-Jurisdiction over Necessary Parties.-Be-
fore an appellate tribunal can proceed to review questions
going to the merits of the judgment from which the appeal is
prosecuted, it must first appear that such court has jurisdiction
of the parties whose rights and interests are affected by the
judgment.
Makeever v. Makeever, 677, 684 (1).
7. Death of Defendant after Judgment.-Necessary Parties.-
Personal Representative.-Heirs.-Where defendant in an ac-
tion to quiet title died after judgment in his favor and before
an appeal was perfected, and his widow was appointed execu-
trix of his estate, she was a necessary party to the appeal both
in her representative capacity and as an heir.
Makeever v. Makeever, 677, 684 (2).
8. Substitution on Death of Party.-Notice.-Where parties are
substituted as appellees in case of the death of a party after
judgment and before appeal, they should have notice either of
the application to substitute, or should be served with notice
after they have been named as appellees.
Makeever v. Makeever, 677, 686 (4).
9. Substitution on Death of Party.-Notice.-Time for Serving.
-Where a party died after judgment and before appeal and
no attempt was made to serve substituted appellees with notice
of substitution until more than ninety days after the filing of
the transcript and the assignment of errors, it was too late.
Makeever v. Makeever, 677, 686 (5).
10. Vacation Appeal by One of Several Codefendants.—Notice.—
Statute.-Under §675 Burns 1914, Acts 1895 p. 179, providing
that whenever a party, or any number of coparties against
whom a judgment has been taken, shall appeal under §638 R. S.
1881, providing for term-time appeals, it shall not be necessary
to make coparties parties to the appeal, but they shall be bound
by the judgment on appeal as if made parties, and that, after
any such appeal has been perfected, any coparty not joining
therein may, while such appeal is pending, and within one year
from the date of final judgment, assign errors for himself upon
the record, and that he shall have all the rights, in relation to
such appeal, that he would have had, had he joined in the
appeal originally, a coparty assigning error on the transcript
but not perfecting a term-time appeal is not relieved of giving
to appellees the notices required to perfect a vacational appeal.
Chicago, etc., R. Co. v. Priddy, 552, 559, 561 (3).
IV. PERPECTION OF APPEAL-REQUISITES.
11. Extending Time for Appeal.-Motion for New Trial.-Ap-
pellant's motion for a new trial, waived because filed subse
quently to their motion in arrest of judgment, did not extend
the time for perfecting the appeal.
Treloar v. Harris, 22, 23 (2).
12. Term-Time Appeal by One of Several Codefendants.-Notice
to Appellees.-Rules of Court.-Where one of several codefend-
ants assigned error on the transcript filed in a term-time appeal
by a coparty, but failed to perfect a term-time appeal, and did
not serve notice of its appeal on appellees, who had entered no
appearance, within ninety days after the filing of the tran-
script, and no excuse was offered for such failure to observe
Rule 36 of the Appellate Court, relating to notices in vacation
appeals, the court will not relieve appellant from the enforce-
ment of such rule on the ground that the failure of its observ-
ance was due to excusable accident, mistake, or oversight.
Chicago, etc., R. Co. v. Priddy, 552, 557, 558 (1).
V. RECORD-PREPARATION AND CONTENTS.
13. Presenting Questions for Review.-Objections to Evidence.-
The correctness of rulings on objections to the admission of
evidence cannot be determined in the absence of the evidence
from the record.
Houk v. Harter, 373, 374 (1).
14. Questions Reviewable.-Ruling on Motion for New Trial.—
Grounds of a motion for a new trial that the verdict is con-
trary to law, and that the jury erred in the assessment of the
amount of recovery, are not available on appeal where the rec-
ord contains no bill of exceptions.
Aufderheide, Trustee, v. Heward, 286, 288 (3).
15. Questions Reviewable.-Conclusions of Law.-Ruling on Mo-
tion for Venire de Novo.-Where the record discloses no special
finding of facts, conclusions of law, or motion for a venire de
novo, error assigned as to the conclusions of law and in over-
ruling a motion for a venire de novo presents no question for
review.
Aufderheide, Trustee, v. Heward, 286, 288 (1).
VI. ASSIGNMENT OF ERRORS.
See also 2, 3.
16. Amendment.-Time.-An assignment of error cannot after
the time for perfecting an appeal has expired be amended by
adding a party, even though the omission is due to appellant's
excusable neglect.
Makeever v. Makeever, 677, 685 (3).
17. Grounds. An assignment of error that the complaint does
not state facts sufficient to constitute a cause of action presents
no question for review on appeal.
Peacock Coal, etc., Co. v. Crawford, 401, 403 (1).
18. Parties.-Defective Assignment.-Dismissal.-Where plain-
tiff sued in his capacity as trustee and recovered judgment,
and by the assignment of errors was made a party on defend-
ant's appeal in his individual capacity, the transcript being filed
before the act of 1917, Acts 1917 p. 523, concerning civil pro-
cedure became effective, the appeal will be dismissed on motion
filed after the expiration of time for perfecting the appeal.
Gardner v. Benson, 700.
19. Refusal to Strike out Parts of Deposition.—An assignment
of error predicated on the overruling of a motion to strike out
certain parts of a deposition presents no question for review.
Johnson v. Gephart, 322, 326 (4).
20. Argument.—An argument is not a necessary part of a brief,
and any question attempted to be presented thereby will not
be considered where not presented in appellant's points and
authorities.
Moore v. Ohl, 691, 699 (6).
21. Sufficiency.-Alleged error in the refusal of instructions is
not presented for review, where appellant's points and authori-
ties do not refer to the instructions or to any error predicated
on their refusal.
Moore v. Ohl, 691, 699 (5).
22. Sufficiency. The rules of the Supreme and Appellate Courts
relating to the preparation of briefs are not complied with by
a mere statement in appellant's points and authorities of gen-
eral propositions of law which neither by wording nor direct
reference are applied to any particular ruling of the trial court
relied on for reversal.
Moore v. Ohl, 691, 693 (1).
23. Sufficiency.-Where appellant's brief, in its points and au-
thorities, states several general propositions of law without in-
dicating to what particular ground of the motion for new trial
it desires to apply them, as required by Rule 22 of the Appellate
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