ing whereby the court virtually held that appellee's contract or agreement must be shown by appellant to have been made upon a sufficient consideration, other and wholly different from the consideration thereof as stated in his first paragraph of answer, which entered into and constituted an essential part of the contract or agreement admitted by appellee in such paragraph of reply. The consideration of such contract or agreement was expressed therein as the same was stated in appellant's answer; and, when appellee "admitted the contract therein alleged," he admitted, also, the consideration therein expressed, and this consideration was sufficient.

The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the second paragraph of reply, and for further proceedings not inconsistent with this opinion.

(108 Ind. 238)

BLACKBURN and others v. CROWDER and others.

(Supreme Court of Indiana. November 17, 1886.)

1. PLEADING-EXHIBIT-IDENTIFICATION.

A complaint upon a replevin bond which contains a particular description of such bond, followed by the averment, "A copy of which is filed herewith," sufficiently identifies such copy, where it appears following the complaint in the record.

2. SAME-VARIANCE BETWEEN COPY AND RECITAL.

In an action on a replevin bond, the copy of the bond filed with the complaint must control, in case of variance between it and the recitals in the complaint. 3. REPLEVIN-ACTION ON BOND-COMPLAINT.

Where it is averred, in a complaint or a replevin bond, that the defendants failed and refused to pay the judgment rendered against them in the replevin proceedings, it is not necessary to also aver that such judgment remains in full force, and unappealed from.

Appeal from Lawrence circuit court.

Action on replevin bond.

L. A. Cole and J. H. Bradley, for appellants. A. Anderson and M. Nye, for appellees.

MITCHELL, J. There is but one error assigned on the record before us, and that is that the court erred in overruling a demurrer to the complaint. The action was founded on a replevin bond. The complaint sets out that in March, 1883, the appellees instituted proceedings in the circuit court of Lawrence county against Monroe Blackburn, for the recovery of certain personal property, and that they procured the property to be seized by the sheriff upon a writ issued in that behalf. Blackburn thereupon, as principal, with the other appellants as sureties, executed an undertaking to the sheriff, conditional for the delivery of the property to the plaintiffs, without injury or damage, in case it should be adjudged that the plaintiffs were entitled to the possession thereof, and also for the payment of all sums of money which might be recovered against Blackburn in that action. The complaint avers that such proceedings were thereafter had as that the plaintiffs recovered a judgment against the defendant Blackburn for $490 damages, and $264.95 costs. The breach assigned is that the defendant wholly failed to pay the damages and costs so recovered.

The first objection urged against the complaint is that it does not identify or show, with sufficient certainty, that the original or a copy of the bond sued on was filed with the complaint. An examination of the record leads us to conclude that this point is not well made. The averment that a bond was duly executed on a given date, by certain parties, is followed by these words, 'a copy of which is here with filed," after which the conditions of the bond alleged to have been filed are stated. Following the complaint, copied into the transcript, is a copy of a bond which corresponds in all essential particulars with that alleged to have been filed with the complaint. It has been

repeatedly ruled that an instrument which appears in the transcript thus identified and referred to is within the requirement of the statute which prescribes that the original or a copy of any instrument upon which an action is founded must be filed with the complaint. Northwestern Mut. Life Ins. Co. v. Hazelett, 105 Ind. 212; S. C. 4 N. E. Rep. 582, and cases cited.

As a further objection to the complaint, it is said the conditions of the bond, as they are recited in the body of the complaint, do not correspond with those which appear in the copy of the bond filed therewith. As it seems to us, there is no substantial variance. The complaint recites that "said defendants undertook to return said property to the plaintiffs, if said suit should thereafter be decided in favor of said plaintiffs, and also pay all damages and costs adjudged in favor of said plaintiffs." The corresponding condition of the bond filed is "that said lumber shall not be injured or damaged, and that said Monroe Blackburn shall deliver said lumber to the plaintiffs in said proceeding, * and said Monroe Blackburn shall pay all sums of money which they may recover in said action." The criticism made at this point is that the complaint recites that all the defendants undertook to return the property and to pay damages, while the obligation contained in the bond is that Monroe Blackburn shall deliver, etc., and pay, etc. The bond sued on created an obligation equally binding upon all who signed it. All were directly bound, as original obligors, to perform each and every undertaking therein contained. Besides, the point which the appellants seek to make is not available on demurrer. Conceding, if need be, all that is contended for, the complaint stated a cause of action. The bond was the foundation of the action, and if there were any variance between the recitals in the complaint and those in the copy of the bond which was filed with it, the latter would control. Work, Pr. § 416.

It is contended, further, that it does not sufficiently appear from the complaint that the judgment for damages, the non-payment of which is assigned as the breach of the bond, was rendered in the proceeding in which the bond sued on was filed. The complaint alleges that the replevin suit was commenced in the Lawrence circuit court, by the appellees as plaintiffs, against Monroe Blackburn as defendant, and that the undertaking sued on was filed in that proceeding. It avers that the venue of the cause was afterwards changed to the Greene circuit court, and that such proceedings were then and there had as that, on a date mentioned, it was adjudged "that said plaintiffs recover of and from said defendant Monroe Blackburn," etc. This makes it presumptively certain that the judgment mentioned was recovered in the replevin proceeding in which the bond was filed.

As it was averred in the complaint that defendants had failed, neglected, and refused to pay the judgment, it was not necessary, as is contended by the appellant, that the complaint should have contained an averment that the judgment, the non-payment of which was complained of, remained in full force and unappealed from. If the judgment had been appealed from, that fact would have constituted no defense to an action on the bond. Mull v. McKnight, 67 Ind. 525, 535; Burton v. Reeds, 20 Ind. 87 If the judgment had been set aside, reversed, or was for any other cause not in force, it remained for the defense to bring the facts forward in an answer. Campbell v Cross, 39 Ind. 155; Randles v. Randles, 67 Ind. 434; Padgett v. State, 93 Ind. 396. The judgment is affirmed, with costs.

(108 Ind. 241)

CARR and others v. BoONE and others.

(Supreme Court of Indiana. November 20, 1886.)

1. JUDGMENT-DRAINS AND SEWERS-DIRECT ATTACK-APPEAL.

An appeal in drainage cases is a direct and not a collateral attack.

2. DRAINS AND SEWERS-NOTICE-WAIVER.

Notice in drainage proceedings is essential; and, although it may be waived, parties who enter a special appearance, and object to the sufficiency of the notice, cannot be deemed to have waived objections.

Where the court ascertains that the first notice is insufficient, it may order a second one to be given.

4. SAME-NOTICE TO SAME.

The fact that one or more land-owners were not notified will not vitiate the proceedings as to those who were notified.

5. SAME-PROOF OF POSTING NOTICES.

Proof of posting notices need not necessarily be made by affidavit.

6. DRAINS AND SEWERS-DISMISSAL OF PETITION.

A petitioner in a drainage case cannot dismiss his petition after the drainage commissioners have reported, and money has been expended in constructing the ditch. 7. APPEAL-JOINT MOTION-JOINT ASSIGNMENT OF ERRORS.

A joint motion, or a joint assignment of errors, must be good as to all who unite in it.

Appeal from Hamilton circuit court.

Proceeding to establish a ditch.

Wm. Booth and F. M. Trissal, for appellants. Moss & Stevenson, for ap pellee.

ELLIOTT, J. The appellant Heiney petitioned the circuit court of Hamilton county for the establishment of a ditch, and an order was finally made establishing the ditch as prayed for. This appeal is from the judgment rendered in the proceedings put in motion by the petition of the appellant Heiney,

The cases which decide questions presented by a collateral attack upon the judgment of the court in drainage proceedings are not of controlling force here, for this is a direct attack upon the judgment. An appeal from the judginent brings in direct review all questions properly saved by the appellants. The notice originally given was that the petitioners would file a petition on a designated day, and, as against a direct attack, this was not sufficient; for the statute requires that the notice shall be given after the filing of the petition. Acts 1883, p. 173; McMullen v. State, 4 N. E. Rep. 903. The failure to give the notice required by law was a grave error, and would invalidate the proceedings as against a direct attack, unless corrected by subsequent proceedings. Notice is an essential requisite, and the omission to give the notice provided by the statute is one of a most material character, and these proceedings must fail unless the record shows that the notice was waived, or that subsequent proceedings cured the error; for here the case is before us for review by a direct appeal.

It is settled that notice in proceedings of this character may be waived. Sunier v. Miller, 105 Ind. 393; S. C. 4 N. E. Rep. 867. A notice, however, is not waived where the parties enter a special appearance, and move to dismiss the proceedings for want of notice; and that is substantially what was done by some of the appellants in this case. There can therefore be no affirmance of the judgment on the ground that there was a waiver of notice, as to the parties who thus appeared and objected to the notice. The question as to the sufficiency of the notice affects only those who do not waive it; for those who appeared without objection cannot now successfully urge its insufficiency. Some of these appellants did, however, seasonably object. As to them, the question remains whether or not the subsequent proceedings cured the error in the original notice; but, as to those who did not object, the

judgment must be affirmed without further inquiry. Updegraff v. Palmer, 107 Ind. 151; S. C. 6 N. E. Rep. 353; Higbee v. Peed, 98 Ind. 420; Bradley v. City, 99 Ind. 417.

After the reference of the petition to the commissioners, they reported that proper notice had not been given, and the court thereupon ordered another notice to be given. This notice included all of these parties except Thomas Stanford. After this notice had been given, he, in conjunction with other parties, filed a motion to dismiss the proceedings, and assigned in support of the motion these grounds: (1) Because there was no affidavit showing the posting of notices; (2) because no notice was ever given of the filing of the petition; (3) because all of the lands described in the additional notice were described in the petition; (4) because the additional notice was not posted in three public places; (5) because notice was not given to some of the land-owners affected by the proceedings.

If this motion had been by Thomas Stanford alone, and had been followed by a separate assignment of errors, it would, perhaps, have entitled Thomas Stanford to a reversal; but it was a joint motion, followed by a joint assignment of errors, and, as the motion was not well taken as to all who joined in it, there was no substantial error in overruling it; but, if there had been, it would not be available on a joint assignment of errors. We say the motion and assignment are joint, because Mary Stanford, Eli Keffer, and another joined in it; and, as the motion was not valid as to all of them, there was no error in overruling it.

The fact that one or more land-owners were not notified did not vitiate the proceedings as to those who were properly notified. Grimes v. Coe, 102 Ind. 406; S. C. 1 N. E. Rep. 735; Town v. Leopold, 106 Ind. 29; S. C. 5 N. E. Rep. 761.

Proof of the posting of notices need not necessarily be made by affidavit, but may be made in any other legal method. Meranda v. Spurlin, 100 Ind. 380. It was not essential, therefore, that the record should contain affidavits proving the posting of notices. As the motion presented a question for the decision of the court below, and as there is nothing in the record showing that the decision was wrong, we must presume that it was correct. It is a familiar rule that all reasonable presumptions will be made in favor of the rulings of the trial court, and this rule requires us to hold that the judgment of the court was sustained by sufficient evidence.

Although there was no express or formal judgment declaring the notice sufficient, still the judgment involved that question, and settles it without any formal declaration to that effect. Updegraff v. Palmer, supra; Jackson v. State, 104 Ind. 516; S. C. 3 N. E. Rep. 863; Carr v. State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Platter v. Board, 103 Ind 360; S. C. 2 N. E. Rep. 544; Cauldwell v. Curry, 93 Ind. 363.

As we have seen, the statute requires that notice of the filing of the petition shall be given, and this was the effect of the second notice, and it was one which the court had a right to direct; for we think there can be no doubt of the right of the court to order notice to be given, where it is discovered that a notice previously given was not sufficient, provided there is no unreasonable delay, and no substantial rights are prejudiced. Here there was no unreasonable delay, and no injury was done the appellants, for they were not in any manner misled.

The appellant Heiney was the petitioner, and he is in no situation to complain of the notice. The principle declared in Sunier v. Miller makes it clear that he cannot avail himself of a defect in the form of the notice, nor successfully object to the manner in which it was proved. Heiney moved to dismiss the proceedings, but his motion was overruled, and of this ruling he complains in a separate assignment of errors. Prior to the time this motion was made the drainage commissioners had filed a report, and an order was made approv

ing the assessment. Subsequently, Heiney joined the drainage commissioners in a petition to vacate the report and order, representing that owners of lands benefited were not made parties. On this second petition an order was made vacating the former order, and directing that notice be given to those persons owning lands omitted from the first petition, and those persons came in and entered an appearance. This motion came too late. Rights had been acquired and money expended on the faith of the order made upon the first report, and justice requires that a petitioner should not be allowed to destroy rights which his own act had been the means of creating. The case is not at all like that of an ordinary civil action; for in such a proceeding as this the public and many persons have a common interest, and he who sets on foot the proceeding cannot be permitted to end it, to the injury of the public and others, by dismissing the petition. This is the doctrine held in Crume v. Wilson, 104 Ind. 583, S. C. 4 N. E. Rep. 169, and it rules this case.

There is no question of estoppel presented, except as to Heiney, although it is intimated in appellees' brief that the appellants are all estopped. We have no doubt that there are cases where a property owner is estopped to question the validity of such proceedings as these, and we think that Heiney is barred, on the ground of estoppel, from impeaching the validity of the proceeding, but we do not think any of the other appellants are. Judgment affirmed, with costs.

(108 Ind. 61)

BAKER v. PYEATT.

(Supreme Court of Indiana. October 26, 1886.)

1. JUDGMENT-PARAGRAPHS OF COMPLAINT-ONE BAD.

Where a judgment rests upon two paragraphs of a complaint, one of which is fatally defective on demurrer, the judgment cannot stand.

2. APPEAL-ACTION TO REFORM DEED-FAILURE TO FILE COPY-REV. ST. IND. 1881, ?

345.

Under section 345, Rev. St. Ind. 1881, a judgment should not be reversed merely be cause a deed sought to be reformed was not filed with the complaint, it affirma tively appearing that the merits of the case have been fairly tried and determined. 3. EQUITY-REFORMATION OF DEED-MUTUAL MISTAKE-MISDESCRIPTION-MISTAKE OF

FACT.

Where a description is complete and sufficient to convey the land described, if the grantor were the owner, but, by mutual mistake, the description does not apply to the land intended to be conveyed, the mistake is one of fact, and not of law, and the grantee is, on a proper showing, entitled to have the deed reformed, where no equities or rights of third persons have intervened, although he knew the words of description used in the deed.

4. Same-DeeD WITHOUT VALUABLE CONSIDERATION.

Courts of equity will not reform a deed purely voluntary, and without any valuable consideration; but any valuable consideration, however small, such as services performed by the grantee for the grantor, coupled with love and affection, may be sufficient.

Appeal from Vanderburgh circuit court.

Patterson & Taylor and Gilchrist & Butterfield, for appellant.

A copy of the deed sought to be corrected should have been set out in the pleading. Overly v. Tipton, 68 Ind. 410.

The mistake sought to be corrected must be the mutual mistake of all the parties to the deed. See Baldwin v. Kerwin, 46 Ind. 426; Barnes v. Bartlett, 47 Ind. 98; Heavenridge v. Mondy, 49 Ind. 434; Easter v. Severin, 64 Ind. 375; Schoonover v. Dougherty, 65 Ind. 463; Welshbillig v. Dienhart, 65 Ind. 94; Nicholson v. Caress, 59 Ind. 39. We think also that it is well settled that such a mistake as is described in the second paragraph is one of law. Easter v. Severin, 78 Ind. 540, and cases there cited.

The second paragraph of the amended complaint shows that the attempted