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after rendering a decree of divorce and judgment for alimony in favor of appellee from which an appeal had been taken to the appellate court, had jurisdiction to make an allowance in favor of appellee to enable her to employ counsel and for the purpose of defending against such appeal. As it seems to us the weight. of authority sustains the right of the trial court to make such allowances pending such appeal and for the purpose of enabling the wife properly to present her defense thereto.

Appellant, contending that the court did not have jurisdiction, relies upon Westfall v. Wait, 161 Ind. 449, 68 N. E. 1009, and Partlow v. State, 191 Ind. 657, 134 N. E. 483. In the Westfall Case, the court says that:

"It seems to be thoroughly settled by the decisions of the American courts that an appeal from a final judgment rendered generally upon the issues in a cause, when properly perfected, carries the whole case embraced within the final

adjudication absolutely from the jurisdiction

of the trial court to the appellate tribunal." (Our italics.)

The court then quotes the rule as stated in 2 Ency. Pl. & Pr. p. 327, as follows:

"Where an appeal has been perfected, the jurisdiction of the Appellate Court over the

Appeal from Superior Court, No. 2, Vigo subject matter and parties attaches, and the County; Wm. T. Gleason, Judge.

Action by Harvey J. Cirtin against Gertrude Cirtin, who filed a cross-complaint. From an order that plaintiff pay a certain sum for the use of defendant and her attorneys in defending against plaintiff's appeal from a judgment for defendant on her crosscomplaint, plaintiff appeals. Transferred to the Appellate Court. by the Supreme Court. Affirmed.

trial court has no power to render any further decision affecting the rights of the parties in the cause until it is remanded."

The Westfall Case is cited and quoted with approval in the Partlow Case. As it seems to us, the quotation from Ency. Pl. & Pr., supra, must have been made for the purpose of confirming what the court had said as to the well-settled rule quoted above, which is, as we understand it, that an appeal from a final E. L. Swadener and Stimson, Stimson & judgment rendered upon the issues in a cause Davis, all of Terre Haute, for appellant. Thomas F. O'Mara and B. F. Small, both of final adjudication to the appellate tribunal. Terre Haute, for appellee.

NICHOLS, J. The action to which this proceeding is ancillary was brought by appellant against appellee for divorce. A divorce with alimony was granted to appellee on her cross-complaint. Appellant appealed, and the judgment of the lower court has been affirmed by this court. Cirtin v..Cirtin, 159 N. E. 927. After the appeal was taken, on petition of appellee, the court ordered appellant to pay $400 for the use of appellee and her attorneys in defending the case on appeal. This appeal, which was to the Supreme Court, as from an interlocutory order, is from the order to pay the $400. The Supreme Court has held that the order was not interlocutory, and for want of jurisdiction has transferred the appeal to this court.

[1, 2] The question first presented for our consideration is as to whether the trial court,

carries the whole case embraced within the


In this case, by a final adjudication upon the
issues, a decree of divorce and judgment for
alimony was rendered in favor of appellee,
and when the appeal was perfected, jurisdic-
tion as to the questions of divorce and ali-
mony were absolutely removed from the ju-
risdiction of the trial court. But the matter
here involved is independent of any question
raised by the appeal and was not within the
issues and was in no sense adjudicated.
fact, it could not have been adjudicated, for
at that time there was no appeal and hence
no necessity for an allowance to defend
against an appeal. The appeal itself has
created the necessity for the allowance to de-
fend against the same. As stated in Maxwell
v. Maxwell, 67 W. Va. 119, 67 S. E. 379, 27
L. R. A. (N. S.) 712, the appeal does not de-
prive the circuit court of jurisdiction to make
orders in the cause on matters that are dis-
tinct from the questions that are involved in

(161 N.E.)

the appeal, and especially those which are in aid of the appeal. Section 545, Elliott's Appellate Procedure, states the rule that should control here thus:

"Matters independent of and distinct from the questions involved in the appeal are not taken from the jurisdiction of the trial court. Such matters as the appeal does not cover are purely collateral or supplemental, lying outside of the issues framed in the case, or arising subsequent to the delivery of the judgment from which the appeal is prosecuted. The general rule that a case leaves the juris

diction of the trial court when an appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court, notwithstanding the loss of jurisdiction over the case taken to the higher court."

In 1 Ency. Pl. & Pr. p. 449, the learned author states the rule to be that:

"Temporary alimony and counsel fees may be granted by the Appellate Court pending an appeal, but the usual practice is that this shall be done by the trial court, which is deemed still to have sufficient jurisdiction for this purpose as long as the action is pending-i. e., while the appeal is undetermined."

We are not called upon in this case to determine whether such an allowance might be made by this court, for the question is not before us; but see Eward v. Eward, 72 Ind. App. 638, 125 N. E. 468.

It seems that it is well settled from these authorities, and numerous others that might be cited, that the court had jurisdiction for the purpose of making such allowance as it deemed necessary and proper to enable appellee to defend against the appeal from the judgment rendered in her favor. We so hold. After judgment had been rendered in favor of appellee granting her a divorce and $1,500 alimony, the cause was appealed to this court as stated above.

[3-5] After appellee's application for suit. money, appellant filed his application for a change from the judge who had theretofore tried the issues involved and rendered judgment thereon in favor of appellee. But the cause had then been transferred on appeal to the Appellate Court, and there was then nothing pending before the trial court except the ancillary proceeding for suit money. The court did not err in overruling appellant's application for change of judge. The only error presented by appellant's motion for a new trial was the court's ruling on appellant's motion for a change of judge, and, conceding without deciding that a motion for a new trial is proper in a proceeding such as here, and that the court erred in sustaining appellee's motion to strike out the motion for a new trial, which is the equivalent of overruling such motion for a new trial (Long v. Ruch, 148 Ind. 74, 77, 47 N. E. 156), still appellant was not harmed thereby. Affirmed.

DAUSMAN, J., absent.

Authorities from other states with statutes as to orders relative to expense money for the use of the wife in making preparation of her case, similar in effect to the Indiana statute, are McBride v. McBride, 119 N. Y. 519, 23 N. E. 1065; Lewis v. Lewis, 83 Wash. 671, 145 P. 980; Roby v. Roby, 9 Idaho, 371, 74 P. 957, 3 Ann. Cas. 50; Ex parte Lohmuller. 103 Tex. 474, 129 S. W. 834, 29 L. R. A. (N. S.) 303; State ex rel. Kranke v. Calhoun (Mo. Appellate Court of Indiana, in Banc. May 10, Sup.) 232 S. W. 1038.

In the McBride Case cited above, the court said:

"In this case, although a judgment, final for the purposes of an appeal, is entered, the action is still pending. The jurisdiction over the parties remains through the further steps regularly taken, and the action is in no sense or respect ended. By the terms of section 1769 of the Code [Civ. Proc.], the allowance may be made from time to time,' 'during the pendency' of the action, and is described 'as necessary to enable the wife to carry on or defend the action.' That is one of the purposes to be subserved, and the need of it is quite as pressing and obvious after the judgment and pending the appeal as before. It could not have been contemplated that before judgment the wife should be aided in maintaining her rights, but after judgment in her favor, should be left to starve during the pendency of an appeal, and should be disarmed by her very success from defending the judgment in her favor."

ORDEAN et al. v. INLAND STEEL CO. (No. 13249.)


1. Master and servant 397-Where second application for compensation was dismissed and original application subsequently dismissed on applicants' motion, Industrial Board was without jurisdiction.

Where second application for compensation had been dismissed and original application was dismissed on motion of applicants, Industrial Board had nothing before it for its investigation and was without jurisdiction in compensation proceedings.

2. Master and servant 417(3)—Order of single member of Industrial Board dismissing second application for compensation was not separately reviewable, where original application remained.

Order of single member of Industrial Board dismissing claimants' second application for compensation was not a final order, or award, upon which review might be had alone, where original application remained.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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ENLOE, J. On December 5, 1917, one Leo Ordean, an employee of appellee, received an injury by accident which resulted in his death on said day.

On May 6, 1918, an application for an award of compensation, on account of such injury and death, was filed with the Industrial Board, by Valeria Ordean, Rosalia Ordean, and Alexander Ordean, said application being signed by one

Goes, as attorney

in fact. The cause was set for hearing on May 31, 1918, but the same was continued at the request of the said applicants.

On March 14, 1922, one Alec J. Lupear, royal vice consul of the kingdom of Roumania, filed with the Industrial Board a notice that, as such consul, he had assumed charge of said application on behalf of said applicants, they being residents and citizens of the kingdom of Roumania, and, on July 27, 1922, said consul as such, "for and on behalf of the known heirs, next of kin, dependents of Leo Ordean, deceased, residents and citizens of the kingdom of Roumania," filed an application for an award of compensation with the Industrial Board, naming as the employer the appellee herein.

Thereafter, at the request of said Lupear, a commission to take the deposition of certain persons residing in Roumania was issued and said matter further continued for the taking of such depositions.

On February 9, 1925, by agreement of the parties, said depositions were published, and on August 23, 1926, at the request of said applicants, a second commission for the taking of depositions of parties living in Roumania

was issued by the Industrial Board. These depositions were taken, returned, and filed with the Industrial Board December 1, 1926. Thereafter this cause was set for hearing before a single member of the board at Hammond, Ind., on April 18, 1927, but, before the

hearing commenced, the appellants by counsel asked leave to amend the said application filed on July 27, 1922, so as to name as the applicants and alleged dependents, Valeria Ordean and Rojica Ordean. This application for leave to amend was sustained, and said application amended.

On March 17, 1927, the appellee filed its motion with the Industrial Board to dismiss the application filed by Alec J. Lupear on July 27, 1922, for the reason that at the time the same was filed there was already on file with the Industrial Board an application for an award of compensation to the dependents of said Leo Ordean, against the Inland Steel Company, as the employer of said deceased. This motion at said hearing on April 18, 1927, was sustained, and the said application so filed on July 27, 1922, was ordered dismissed.

[1] Waiving the question as to whether or not the filing of the second application, on July 27, 1922, had the legal effect of taking from the record the application filed May 6, 1918, and giving to appellants all benefit of the said question, still, the dismissal of said application of July 27, 1922, left only the application, for an award of compensation, filed May 6, 1918, before the board for its consideration and the cause was reset for a hearing before the individual member, on June 6, 1927. At this hearing the applicants, by their counsel, entered their motion that the said application filed May 6, 1918, be dismissed; their said motion was sustained and said application was dismissed, thus leaving nothing whatever before the Industrial Board for its investigation and determination, and leaving it of course without further jurisdiction.

[2, 3] The appellants have attempted to have a review of the proceedings by the full board, but that body decided, and rightly so, that upon this record it was without jurisdiction. The order of the single member made on April 18, 1927, dismissing the said application filed July 27, 1922, was not a final order or award upon which, alone, a review might have been had, as there still remained the application of May 6, 1918, upon which the parties might have had a hearing and upon which an award might have been based, but this remaining application the applicants, now appellants, proceeded to dismiss, and from this action, procured by themselves, they are certainly not in a situation to complain by asking for a review. Affirmed.

DAUSMAN, J., absent.

BREWER v. CULP. (No. 13245.)

(161 N.E.)

tiff be and the same is hereby awarded compensation at the rate of $13.20 per week for the total period of disability; not exceeding the

Appellate Court of Indiana, in Banc. May 15, period fixed by the statute."


1. Master and servant

385(15)—Employee held not entitled to receive compensation in excess of $5,000 for temporary total disability (Workmen's Compensation Act, § 31, cl. (j), and § 40).

Under award for temporary total disability under Workmen's Compensation Act, § 31, cl. (j) (Acts 1919, c. 57 [Burns' Ann. St. 1926, § 9476]), permitting weekly compensation of 55 per cent. of average weekly wages for period of not exceeding 500 weeks, employee was not entitled to receive in excess of $5,000, which is the limit of compensation under section 40 (Acts 1915, c. 106 [Burns' Ann. St. 1926, § 9485]), since the two provisions must be read together and do not authorize Industrial Board to make an award in excess of $5,000.

2. Master and servant

419-Industrial Board held authorized to terminate compensation payments in excess of $5,000 for temporary total disability, though award failed to provide such limitation (Workmen's Compensation Act, § 31, cl. (j), and § 40).

Where award of compensation permitted weekly payments for period of total disability not exceeding 500 weeks under Workmen's Compensation Act, § 31, cl. (j) (Acts 1919, c. 57 [Burns' Ann. St. 1926, § 94761), Industrial Board subsequently had jurisdiction to terminate payments of compensation where $5,000 compensation had been paid, under section 40 (Acts 1915, c. 106 [Burns' Ann. St. 1926, § 9485]), since award in its original form should have limited the compensation to $5,000 and board could correct it either on its own motion or on application of the employer.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by John Brewer, opposed by Alpha Culp. From an order terminating payment of compensation under the original award, the claimant appeals. Affirmed.

L. D. Boyd, George W. Julien, John L. Hanna, and Ralph E. Hanna, all of Delphi, for appellant.

James E. Rocap and John J. McShane, both of Indianapolis, for appellee.

RÉMY, C. J. Appellant, having suffered an injury which arose out of and in the course of his employment by appellee, was, on February 19, 1921, awarded compensation, the award being as follows:

"It is therefore considered and ordered by the Industrial Board of Indiana that the plain

Under this award the weekly compensation payments were regularly made until September 14, 1927, the aggregate of compensation so paid him being $5,000. Although appellant's total disability had not ceased, appellee, claiming that the statute did not provide for compensation to an employee in excess of $5,000, refused to make further payments, and filed with the Industrial Board his application for a modification of the original award, terminating payment of compensation as of September 14, 1927, and on December 9, 1927, the original award was so modified. From the order of December 9, this appeal is prosecuted.

[1] The original award was made under clause (j) of section 31 of the Compensation Act (Acts 1919, p. 164, c. 57; section 9476, Burns' 1926), which provides:

"For injuries causing temporary total disability for work, there shall be paid to the injured employee, during such total disability, but not including the first seven calendar days thereof, a weekly compensation equal to 55% of his average weekly wages for a period not to exceed five hundred weeks."

This provision must be read in connection with, and is limited by, section 40 of the Compensation Act (Acts 1915, p. 404, c. 106, section 9485, Burns' 1926), which, among other things, provides that the total compensation "payable under the act shall in no case exceed $5,000." When the two provisions are read together, it is clear that they do not authorize the Industrial Board to make an award for any injury to an employee which would require the employer to pay compensation in excess of $5,000.

[2] But it is urged by appellant that the Industrial Board was without jurisdiction to terminate payments of compensation as fixed by the original award. Appellant is in error. Clearly, the award in the form written is incomplete; it should have been so drawn as to limit the compensation to $5,000, but the failure so to do was merely a clerical error which the board was authorized to correct either on its own motion or on application of appellee. Affirmed.

DAUSMAN, J., absent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


COUNTY v. MOON. (No. 12819.)

Darrow, Rowley & Shields, of La Porte, for appellee.

NICHOLS, J. Action by appellee upon a

Appellate Court of Indiana, in Banc. March 15, written contract signed by himself and the


1. Towns 47-Advisory Board Act, to cor. rect abuses in public expenditures by township trustees, must be strictly enforced (Burns' Ann. St. 1926, § 12062 et seq.).

The Advisory Board Act (Burns' Ann. St. 1926, § 12062 et seq.) being a remedial statute and having been enacted to correct abuses in expenditure of public funds by township trustees, its provisions must be strictly enforced.

2. Evidence 33-It is matter of common knowledge that Advisory Board Act was enacted to correct abuses in expenditure of public funds by township trustees (Burns' Ann. St. 1926, § 12062 et seq.).

It is matter of common knowledge that enactment of Advisory Board Act (Burns' Ann. St. 1926, § 12062 et seq.) was for purpose of correcting certain abuses which were prevalent at and before the time of its passage in the expenditure of public funds by township trus


3. Pleading 312-On discrepancy between averments of pleading and exhibit, latter controls.

Where there is a discrepancy between the averments of a pleading and the exhibit upon which it is based, the exhibit must control. 4. Towns 78-Complaint in action against township for legal services held demurrable for failure to show available funds or valid appropriation made.

In action by attorney against township for legal services alleged to be due under written contract signed by township trustee, complaint, when read in connection with contract made an exhibit and part of complaint, held demurrable, in that it contained no averment that there were funds out of which appropriation, authorized by advisory board for payment of plaintiff could be paid and did not show that any funds were available or valid appropriation made for pay

ment at time contract was executed.

5. Towns 37-Attorney cannot recover from township under contract not approved by nor made part of record of advisory board (Burns' Ann. St. 1926, §§ 12062, 12075).

Attorney held not entitled to recover for legal services under contract executed by township trustee, where contract was not signed by any members of advisory board nor approved by board nor made part of its record, as required by Burns' Ann. St. 1926, § 12062, thus being void under section 12075.

township trustee of appellant, for the balance of the contract price for legal services alleged to be due him. Appellant's demurrer to the complaint was overruled, and he filed a verified answer in general denial thereto. Trial by a jury, and a verdict was returned for appellee assessing his damages at $450. Judgment was rendered upon the verdict that appellee recover of appellant $450, from which, after appellant's motion for a new trial was overruled, this appeal.

Appellant relies for a reversal of judg ment upon errors of the court in overruling its demurrer to the complaint and in overruling its motion for a new trial,

It is averred in the complaint, in substance: That appellee has been an attorney at law since the year 1914, and actively engaged in the practice. That on March 5, 1921, appellant authorized the employment of appellee to act as attorney for it and to advise with the trustee and members of the advisory board with reference to the building of an addition to the schoolhouse located at Lakeville, and to render certain services for it to be provided for in a contract to be thereafter entered into in writing, after the advisory board had made provision for funds with which to pay appellee. That on March 5, March 12, and June 4, 1921, at a special legally called meeting, all members of the board being present, the advisory board declared an emergency and made an appropriation for the payment of appellee and others, and thereafter authorized an issue of bonds in the sum of $55,000 for the building of said schoolhouse, attorney's fees, and other incidental expenses. After said bond issue had been so authorized, the township trustee, having full authority so to do by order and authority of the advisory board of record, entered into a written contract between appellee and appellant to pay him 3 per cent. of the bond issue which bond issue was to be prepared by appellee for said building for appellant. Ap pellee performed all of the conditions of said contract by him to be performed, the bond issue was prepared by him, all work incident thereto was performed by him, and on and after March 5, 1921, he was continually engaged by appellant in preparing contracts and giving legal advice, up to May, 1923. He

Appeal from La Porte Circuit Court; M. also brought suit for appropriation of propE. Leliter, Special Judge.

Action by Arthur Moon against the Union School Township of St. Joseph County. Judg ment for plaintiff and defendant appeals. Reversed.

erty in order to carry out the purposes and intention of appellant in securing grounds for said schoolhouse. That said bond issue was for $55,000 and, under said contract, appellee was entitled to $1,650 in cash, when his work was completed, together with his incidental

Seebirt, Oare & Omacht, of South Bend, expenses paid out for appellant, all of which for appellant.

was provided for in the appropriation by the

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