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a case, the statute requires that the judgment below, without regard to any defects of form, variances, or imperfections in the record, should be in all things affirmed. Section 658, Rev. St. 1881.

The judgment is affirmed, with costs.

(109 Ind. 236)

KENNEDY V. STATE, for Use, etc.

(Supreme Court of Indiana. January 12, 1887.)

DRAIN-SUIT TO COLLECT DITCH ASSESSMENT AND ENFORCE LIEN-COMPLAINT NOTICE. The complaint, in a suit to collect benefits assessed for the construction of a ditch, and enforce the statutory lien therefor, must allege or show, by proper exhibit, that notice was given by the petitioner of his intention to file his petition for the construction of the ditch.

Appeal from circuit court, Morgan county.

Jordan & Matthews, for appellant. Grubbs & Parks, for appellee.

Howk, J. The first error assigned by appellant, the defendant below, upon the record of this cause, is the overruling of his demurrer to the second paragraph of appellee's complaint. The second paragraph, as it is called, is the only complaint in the record of this cause, and, for the sake of brevity, it will be spoken of as the complaint, in this opinion.

In his complaint, appellee's relator alleged that he was one of the drainage commissioners of Morgan county; that on the twenty-fourth day of April, 1883, Joshua Wooden, a resident freeholder of Morgan county, filed his petition in the court below, praying for the construction of a ditch or drain extending into the townships of Adams and Gregg, in such county, describing therein the beginning, course, and terminus, the utility and purpose, of the same, and the lands to be affected, with the names of the owners whose lands would be benefited by the construction of such ditch; that such proceedings were then and there had that the court, having found such petition to be sufficient, ordered that it be referred to the drainage commissioners of such county, to-wit, William H. Miller and Solomon Dorsett, the relator herein; that said commissioners, after inspecting the beginning, course, and terminus, and all the lands that would be affected by the proposed ditch, as provided by law, and, having assessed the benefits and damages to all lands affected, on the twenty-eighth day of September, 1883, filed their report in open court, a copy of which report, with such assessments therein, was filed with and made a part of the complaint. Here a certified transcript of the proceedings of the court below, on September 28, 1883, on the petition of said Joshua Wooden, is set out in the body of the relator's complaint herein, containing, among other things, the report of the drainage commissioners, with their assessments of benefits and damages, and the judgment of the court establishing the proposed ditch, and approving and confirming the assessments made by said commissioners, and directing the relator, Solomon Dorsett, one of such commissioners, to construct and make the proposed ditch. It is shown by this tran-♦ script that certain described real estate was assessed with benefits in the name of appellant, Kennedy, to the aggregate amount of $80.

It was further alleged by the relator that, among the lands set out in Wooden's petition, and in such report of the drainage commissioners, as benefited by the construction of the proposed ditch, were the following lands owned and occupied by appellant Kennedy, in Morgan county, to-wit, (description omitted;) that the benefits assessed by said commissioners against such lands, and made part of their report, and approved by the court, amounted to the sum of $80; that, under and pursuant to the order of the court, the relator had proceeded with the construction of such ditch, and then had the same about completed in accordance with such order; that relator had made assessments against the lands embraced in such order, including those of appellant, ratably upon

the amounts assessed by the drainage commissioners, and adjudged by the court, for the construction of such ditch, and that he gave notice of such assessments by publication thereof in the Martinsville Republican, a paper of general circulation in Morgan county, and by personal notice to the appellant; that the whole of the benefits assessed against all of such lands, and against appellant's lands, were found to be necessary for the construction and completion of the proposed ditch; that he made an assessment of the entirety of said sum of $80 against the appellant, and gave him notice of the time and place when and where the several installments were required to be paid, but that appellant had wholly failed and refused to pay said assessment, or any part thereof, and that such sum was due and wholly unpaid. A copy of such assessment, and of the notice thereof, was set out in such complaint as a part thereof. Wherefore, etc.

Appellant's demurrer to the foregoing complaint, for the want of sufficient facts therein to constitute a cause of action, was overruled by the court, and this ruling is assigned here as error.

Many objections to the sufficiency of the relator's complaint are urge here in argument by appellant's learned counsel. One of these objections, at least, it must be held in conformity with our previous decisions, is well taken, and must be sustained. That objection is that the relator nowhere alleged in his complaint, nor did he show by any exhibit set out therein or made part thereof, that any notice of any kind was given by the petitioner, Joshua Wooden, of his intention to file his petition for the establishment and construction of the ditch mentioned in such complaint. In section 3 of the drainage act of April 8, 1881, (section 4275, Rev. St. 1881,) as such section was amended by section 2 of the amendatory act of March 8, 1883, (Acts 1883, p. 174,) which amended section was in force from and after its passage, and at and before the time of the filing of Joshua Wooden's petition in the court below, it was provided as follows: "Whenever the petitioner shall file his petition in the clerk's office of the circuit court, he shall fix and note thereon the day set for docketing thereof; and if it appear to the court that notice has been given of the filing of said petition by posting up notices thereof in three public places in each township where the lands are situated described in said petition, and near the line of the proposed work, and at the court-house door in each of the counties in which said lands are situated, not less than twenty days before the day noted thereon, and set as the day for the docketing of the same, the court shall order the cause placed on the dockets of said court as an action pending therein."

In construing these statutory provisions, it has been held by this court that the notice called for therein is jurisdictional, and that, even in a suit such as the one under consideration, for the collection of an assessment of benefits and the enforcement by foreclosure of the statutory lien on the lands benefited, it must be shown in the complaint in some manner, either by positive averment or by exhibits properly constituting a part thereof, that some notice of the kind was in fact given. The pending suit, under our decisions, is, in some sense, collateral to the proceedings and judgment on the original petition of Joshua Wooden for the establishment and construction of the ditch; yet it has been held in many of our cases, such as this, for the collection of an assessment of benefits, and the enforcement of the statutory lien thereof, notwithstanding the presumptions that are ordinarily indulged by this court in favor of the jurisdiction of our circuit courts as courts of general jurisdiction, that the relator must show in his complaint by positive averment, or by proper exhibit therewith filed, that some notice was given of the filing of the petition for the establishment and construction of the ditch. Thus, in the recent case of Pickering v. State, 106 Ind. 228, S. C. 6 N. E. Rep. 611, which was a suit for the collection of an assessment of benefits, the court said: "We think our cases establish the rule that it must appear,

either in the body of the complaint or in the exhibit properly part of that pleading, that there was some notice, and this is the general current of authority."

In our earlier drainage cases, where suits had been brought for the collection of assessments of benefits, and the enforcement of the statutory lien thereof, it was held, substantially, that the complaint of the plaintiff must state facts showing that the provisions of the statute had been essentially complied with from the commencement of the original proceedings for the establishment and construction of the ditch to the last act necessary to be performed therein. Shaw v. State, 97 Ind. 23; Wishmier v. State, Id. 160. The rule of pleading. declared in the cases cited has since been materially modified.

In Laverty v. State, ante, 774, (decided at this term,) the court said: "In suits for the collection of drainage assessments, such as the case under consideration, all that the complaint of the plaintiff's relator need state or show, of or concerning the original proceedings and judgment for the establishment of the ditch, are (1) that some notice was given of the filing of the petition for the ditch; (2) the filing of such petition; (3) the report of the commissioners of drainage of the benefits and damages assessed; and (4) that such report was approved and confirmed by the judgment of the court; and (5) a copy of the assessment against the defendant, in all cases, must be either set out in, or filed with and made part of, such complaint. Upon the same subject, see, also, the following cases: Moss v. State, 101 Ind. 321; Jackson v. State, 103 Ind. 250; S. C. 2 N. E. Rep. 742; McMullen v. State, 105 Ind. 334; S. C. 4 N. E. Rep. 903.

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The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the second paragraph of complaint, etc.

(109 Ind. 241)

(Supreme Court of Indiana. January 12, 1887.)


Where the record fails to show a motion for a new trial upon grounds assigned in writing, no question is presented by an assignment, on appeal, of error in overruling the appellant's motion for a new trial; nor can any alleged error that is proper cause for a new trial be considered by merely assigning it as error in the supreme court.

Appeal from circuit court, Boone county.

C. S. Wesner and H. W. La Follette, for appellant. R. W. Harrison and B. S. Higgins, for appellee.

MITCHELL, J. Grant A. La Follette filed a complaint against John Higgins, in which he charged that the latter, as guardian of the minor heirs of Harvey M. La Follette, deceased, of whom the complainant was one, had failed, in various specified particulars, to faithfully execute his trust. He asked that the final-settlement report, therefore, made by the defendant, be set aside. Issue was taken by a general denial. Trial to the court. Finding and judgment for the defendant below.

A record entry recites that the plaintiff moved the court for a new trial, and that the motion was overruled. After careful examination of the record, we have failed to discover that any written causes for a new trial were filed. We conclude, therefore, that no motion accompanied by specified causes, as required by the Code, was presented to the court below The only errors assigned upon the record here are the following: "(1) The court erred in overruling appellant's motion for a new trial. (2) The court erred in finding for the appellee upon the evidence given in the cause. (3) The court erred in sustaining the objection of the appellee to appellant's offer to prove rate of

interest per annum at which money could have been loaned during the years 1868 to 1875, inclusive. (4) The court erred in overruling appellee's objection to oral testimony being given to prove contents of record."

The application for a new trial, it is scarcely necessary to say, must be by motion, upon written causes filed at the time of making the motion. Section 562, Rev. St. 1881; Secor v. Souder, 95 Ind. 95; Harris v. Boone, 69 Ind. 300.

Since, as we have seen, the record fails to disclose a motion for a new trial upon causes assigned, as the statute prescribes, the first assignment of error above set out presents no question for consideration. Shover v. Jones, 32 Ind. 141; Krutz v. Craig, 53 Ind. 561.

The second, third, and fourth assignments are, for the reason already given, wholly ineffectual to present any question. If the matters assigned as errors had been properly specified as written causes for a new trial, and filed in the court below, with a motion for that purpose, the overruling of such motion, if assigned as error here, would have required an examination of the questions elaborately argued by counsel. As we find it, the record presents none of the questions discussed for decision. Kissell v. Anderson, 73 Ind. 485. It is not claimed that the provisions of the Civil Code in respect to motions for a new trial are not applicable to proceedings such as this.

In the absence of any question, we must presume in favor of the ruling at the hearing below, and, indulging this presumption, the judgment is affirmed, with costs.

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(Supreme Court of Indiana. January 12, 1887.)

GAMING-FREQUENTING GAMBLING-HOUSE-SECTION 2085, REV. ST. IND. 1881-EVIDENCE. Evidence of a single, or even an occasional, visit to a gambling-house, is not suf ficient to sustain a conviction, under section 2085, Rev. St. Ind. 1881, for frequenting a gambling-house. Something akin to a habit must be shown.

Appeal from circuit court, Jay county.

Corwin & Smith, for appellant. The Attorney General, for the State.

NIBLACK, J. Section 2085, Rev. St. 1881, enacts that "whoever, for the purpose of gaming with cards, or otherwise, travels about from place to place, or frequents any place where gambling is permitted, or engages in gambling for a livelihood, is a common gambler, and, upon conviction thereof, shall be fined not more than one hundred dollars, nor less than five dollars, to which may be added imprisonment in the county jail not more than three months, nor less than ten days."

On the thirtieth day of December, 1885, an indictment was returned in the court below against the appellant, Edward O. Green, for frequenting a certain described house in which gambling was permitted, on divers days and times between the first day of August, 1885, and the time of returning the indictment. The circuit court, trying the cause without a jury, found the appellant guilty as charged, assessing a fine only against him, and rendered judgment accordingly.

Several witnesses testified to having seen the appellant, on the night of the seventeenth day of October, 1885, in a room of the building described in the indictment, engaged in a game on which money was wagered, but there was no evidence, either showing, or tending to show, that he had ever visited the house, or been present at any game played in it, at any other time. This evidence was clearly insufficient to sustain the finding of the circuit court. Webster, in his dictionary, states the meaning of the verb "to frequent" to be, to visit often; to resort to often or habitually. Proof of an occasional visit to a house in which gambling is permitted, is not sufficient to sustain a

conviction in a case like the one before us. To make the frequenting of such a house a misdemeanor, it must be something akin to or in the nature of a habit. When a person engages in a game for a wager, whether in a gambling-house or elsewhere, he commits a criminal offense, but the offense he thus commits is an essentially different one from that charged in this case. A person may be guilty of frequenting a gambling-house for the purpose of gaming without actually engaging in any game. Howard v. State, 64 Ind. 516. It is against a dissolute and demoralizing course of life which the law disclaims in the second division of the statute hereinabove set out.

Reference is also made to the following authorities: State v. Miller, 5 Blackf. 502; State v. Allen, 69 Ind. 124; Bish. St. Crimes, § 1018; 1 Bish. Crim. Law, § 1102; 2 Bish. Crimes, § 651; State v. Markham, 15 La. Ann. 498; Antle v. State, 6 Tex. App. 202.

The judgment is reversed, and the cause remanded for a new trial.

(109 Ind. 37)

HANLON V. DOHERTY and others.

(Supreme Court of Indiana. January 7, 1887.)


A deed, although absolute on its face, is nothing more than a mortgage when executed to secure an existing debt.1


A release, like any other contract, may be shown to have been executed without any consideration.


When it is necessary to prevent the holder of the purchase-money mortgage from losing his lien because of an intervening mortgage, equity will not permit a merger to take place, although the holder of the purchase-money mortgage may have acquired the title to the land.2


Although the parties may have undertaken to discharge a mortgage, yet equity will keep it alive as a source of title wherever it is for the interest of the mortgagee, and necessary to protect him against an intervening mortgage of which he had no notice at the time of the release.


Where an attorney acts for both parties, he is a competent witness, and communications made to him are not within the rule prohibiting an attorney from divulging confidential communications.

Appeal from circuit court, Floyd county.

D. C. Anthony, J. V. Kelso, and F. T. Hord, for appellant. J. H. Stotsenberg, for appellee.

ELLIOTT, C. J. The complaint of the appellant is founded on a note executed by John Doherty to him, and the mortgage given to secure it, executed by Doherty and wife on the eighth day of December, 1875. Among others who were made parties to answer as to their interests in the land was Elizabeth Humpherys, executrix of the will of Thomas Humpherys, deceased. She appeared, and filed an answer and cross-complaint; but we need not further refer to her answer, as the questions made on the pleadings are confined to the cross-complaint. It is a familiar rule of equity that a deed, although absolute on its face, is nothing more than a mortgage when executed to secure an existing debt. No matter what form the transaction may assume, if it appear that the instrument was executed to secure a subsisting debt, it

See note at end of case, part 1.

See note at end of case, part 2.

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