copy of the assessment for repairing the | however, determine any question beyond

ditch with the auditor, and that it has been placed upon the tax duplicate; that the ditch was constructed upon a system providing for an outlet, but that an outlet was not constructed; that the proceedings in which a ditch furnishing an outlet was established were declared void; that the repairs on the ditch have not been of any benefit, nor can they be, for the reason that the ditch, for want of an outlet, had filled up; that the judgment of the circuit court declaring void the proceedings establishing the ditch which furnished an outlet was not given until the time for filing an appeal from the decision of the surveyor had expired. Prayer for an injunction.

We do not deem it proper to express an opinion upon the merits of the case, further than to say that the complaint is not so clearly destitute of equity as to make it necessary for us, without any brief or argument from the appellees, to adjudge that, at first blush, there appears to be no cause of action. We do no more than decide that the complaint is not so clearly bad as to require us to adjudge that there is an entire absence of material facts, for the reason that the appellees have filed no brief, although required to do so by an order of court made on the 3d day of March last, and of which they had special notice, and for the further reason that it appears that the appellants have shown a prima facie right to relief.

The attack is undoubtedly a collateral one, and on such an attack it cannot be shown that the original ditch was not received by the proper authorities. Romack v. Hobbs, (Ind. Sup.; filed Nov. 2, 1892) 32 N. E. Rep. 307. We therefore attach no Importance to the allegations of the complaint upon that point.

As an appeal lies from an assessment made by a surveyor, this action could not be maintained if it were not for the allegation that the nullification of the proceedings establishing the connecting ditch, bere the subject of controversy, was not known until it was too late to appeal. As the judgment declaring void the proceedings establishing the connecting ditch was not rendered until the time for appealing had expired, the appellants could not know that the ditch repaired was rendered entirely valueless, and consequently they were not in fault in not pursuing the ordinary legal remedy. If they had known of the worthlessness of the ditch repaired, or were in law chargeable with knowledge of thatfact in time to appeal, this suit could not be maintained; but in the absence of a brief, and by force of the confessions of the demurrer, we assume that they had no such knowledge, and were not chargeable with it. If they had no such knowledge, and the ditch is of no benefit to them whatever, there is no foundation for an assessment; and, as there is shown an excuse for not resorting to the legal remedy, equity will award relief.

those stated, but leave the case open for a full investigation upon its merits, in the event that the defendants appropriately answer the complaint.

Judgment reversed.

(133 Ind. 453)

FLORER, County Treasurer, v. STATE ex rel.
ARNOLD.1

(Supreme Court of Indiana. Dec. 15, 1892.)
APPEAL - ASSIGNMENT OF ERRORS - CONTROL OF
FUND ARISING FROM TAXATION OF DOGS-COUN-
TY TREASURER-TOWNSHIP TRUSTEE.

1. Where, in an action to compel a county treasurer by writ of mandate to pay a certain warrant issued to a township trustee, defendant moved to quash the alternate writ of mandate and the return of the sheriff thereon, an assignment of error that "the court below erred in refusing to quash the service of the writ of mandate and the return of the sheriff thereon" presents no question for review by the supreme

court.

2. In such case, a general plea of set-off alleging an indebtedness of a specified amount by the trustee to the county, without a statement of facts showing a right to withhold the payment of the warrant, is insufficient to constitute a defense.

3. Act March 5, 1891, (Acts 1891, p. 453,) §§ 1-8, provide for the registration of dogs by the township trustee, and payment to him of a fee, the constitution of a dog fund for payment of damages sustained by owners of animals killed or damaged by dogs in the township, the collection, by the trustee, of fines assessed by the courts, and the exemption of registered dogs from other taxation. Section 9 repeals all laws and parts of laws in conflict with the act. Act March 6, 1891, entitled "An act concerning taxation, repealing all laws in conflict therewith, and declaring an emergency," § 47, (Acts 1891, p. 210,) provides that the assessor shall list dogs to the person harboring the same, and fixes the amount of tax to be assessed for each dog: "provided, that nothing in this act shail be so construed as to repeal or modify any of the provisions of an act to provide for the taxation of dogs, etc., in force March 7, 1883, and an act to amend section 8 of said act of March 7, 1883, approved April 8, 1885, both of which acts shall remain in full force and effect." Held, that such last-named acts of March 7, 1883, (Elliott's Supp. § 449,) and April 8, 1885, (Elliott's Supp. § 454,) were not in force, since they were in conflict with and repealed by Act March 5, 1891.

4. Act March 6, 1891, § 236, (Acts 1891, p. 286,) provides that the revenue from the tax on dogs in each township shall be set apart by the county auditor at the annual settlement, and "the same shall be paid over by the county treasurer to the proper township trustee" as a fund for the payment of damages for sheep killed by dogs therein, for which purpose each trustee is required to hold the same; and that when, on the first Monday of March of any year, the fund exceeds $50 over and above orders drawn against it, the surplus shall be expended by such trustee for the use of the school revenue of the township. Section 259 provides that "all laws and parts of laws within the purview of this act" are repealed. Held, that since section 236, relating to the custody and control of the funds, is in conflict with previous statutes, in so far as they give the control of such fund to the county auditor or any other person, the latter were repealed, and the township trustee is entitled to such custody and control.

We hold that, under the confessions of the demurrer and the default in failing to file a brief, the complaint is sufficient to drive the appellees to answer. Wedo not, | county; FRANK B. EVERETT, Judge.

Appeal from superior court, Tippecanoe

Rehearing denied.

Action by the state of Indiana, on the | quash both the writ and the service.

relation of William H. Arnold, trustee of Washington township, in Tippecanoe | county, against Thomas A. Florer, treasurer of Tipperance county, to compel, by wandate, the payment by defendant of a warrant issued by the auditor of said county in favor of the relator. From a

The

assignment of error is that “the court be. low erred in refusing to quash the service of the writ of mandate, and the return of the sheriff thereof. The court was not asked to quash the service of the writ, but was asked to quash both the writ and the service. To have overruled a mo

judgment for plaintiff, defendant appeals.tion to quash or set aside the service Affirmed.

might have been error, while to have over

Kumler & Gaylord, for appellant. Rice ruled a motion to quash the writ would & Potter, for appellee.

!

1

not. If the writ was valid, it was not error to have overruled a motion to quash both the writ and the service No question is presented by this assignment of error. The ruling on the demurrer to the answer presents the question as to who is enti

OLDs, J. This action was brought by the appellee's relator as trustee of Washington township, in Tippecanoe county. against the appellant, as treasurer of said Tippecanoe county, to compel the pay-tled to the control of the dog-taxfund. The

auditor included the amount of $111, the

ment, by mandate, of a warrant issued by the auditor of said county in favor of said | dog fund due the township, in the warrelator, as trustee aforesaid, for the sun of $3,619.49. The appellant refused to pay the warrant unless the appellee's refator would receipt for and allow to be deducted from the amount of the warrant $111 surplus dog tax, and accept $111 less than the face of the order in full payment of the same. Thereupon the relator brought this suit to compel the payment | of the order by mandate. An alternate writ of mandate first issued, and, as shown by the record, was served by the sheriff by delivering a certified copy of the writ to the appellant. The appellant, by counsel, first entered a special appearance, and moved to quash the alternate writ of mandate and the return of the | within any township, and that such fund

sheriff thereon. This motion was overruled, and exceptions reserved, and the ruling preserved by bill of exceptions. The appellant then made a return to the writ in form of an answer in two paragraphs, to each paragraph of which a demurrer was addressed by the appellee and sustained by the court, and exceptions reserved. The appellant refusing to plead further, the court rendered judgment in favor of the appellee, and ordered a peremptory mandate compelling the payment of the order. Errors are assigned

!

J

rant to the relator, the township trustee, and it is now contended that the trustee is not entitled to it, and appellant refuses to pay the amount included in the warant as dog tax, but is willing to pay the balance of the order less that amount. The settlement of this question depends upon the construction to be given to thestatutes. There seems to be some confusion in the various sections of the statute. Section 6 of an act approved March 7, 1883, (Elliott's Supp. § 449,) provides that the money derived from the taxation of dogs shall constitute a fund to be used for the payment of damages sustained by the owners of sheep maimed or killed by dogs

on the rulings of the court in overruling | treasurer, and such surplus shall consti

appellant's motion to quash the alternate writ of mandate and the sheriff's return thereon, and in sustaining the demurrer to the paragraphs of answer. Counsel for appellant assume that the question is presented as to whether or not the court

shall be paid by the county auditor to the township trustee of the township in whose township the dogs are listed, and the trustee should hold the same for the purpose aforesaid. Section 1 of an act approved April 8, 1885, (Elliott's Supp. § 454,) amends section 8 of the act of 1883, and provides that, when it shall occur on the first Monday of March of any year, the fund shall accumulate to an amount exceeding $50 above the amount of the orders drawn against it. The surplus shall be paid and transferred to the county

tute a county dog fund, and be distributed among the townships of the county in which the orders drawn against the fund exceed the money on hand; and any surplus in the county dog fund remaining on the second Mondayin March shall be

the alternate writ of mandate, or by refusing to set aside the service, and counsel for appellee filed their verified brief in advance of the filing of the appellant's brief, and make no allusion to this question.

It is quite apparent that no harm was done by the manner in which the service was made, even if it was erroneous, though we do not wish to be understood

as indicating any opinion as to its valid-registered dogs to belawfully killed, afford

uted as interest on the congressional school fund is distributed. By an act approved March 5, 1891, (Acts 1891, p. 453, ) further provisions are made relating to the taxation of dogs, and the disposition of the funds derived therefrom. Section 1 provides for the registration of dogs by the township trustee, and the payment to him of a fee, the amount of which is fixed by the statute. Sections 2 to 4 subject un

ity, as we do not deem the question presented by the record. The motion in this case was "to quash the alternate writ of mandate issued in this behalf, and the return of the sheriff thereon," and it was this motion, as a whole, that was overruled, and the ruling excepted to. This motion was a verbal motion, and asked to

protection to registered dogs, and make it a misdemeanor to keep or harbor a dog not registered; and section 6 of this act provides that the money derived from the registration and from fines under the act shall constitute a dog fund for the payment of damages sustained by the owner of swine, cattle, horses, and sheep killed,

erred in refusing to quash the service of | transferred to theschool fund, and distribmaimed, or damaged by dogs within such | act, approved March 6, 1891, was passed,

township, and provides for the trustee collecting the fines assessed by the courts under the act. Section 7 provides the manner of reporting and making proof of the loss sustained by the owners of

the laws approved March 7, 1883, and April 8, 1885, were not in force, for they were in conflict with the act approved March 5, 1891, and wererepealed by it, and certainly they could not be revived and re

such animals. Section 8 of the act pro-enacted by the mere reference to them in vides that dogs registered as provided for the manner they are referred to in section in the act shall not be assessed for taxa-47 of the act of March 6, 1891. It is quite tion for any purpose whatever. Section

apparent that the legislature was laboring under the mistaken idea that the two acts were in force, and they were to be allowed to remain in force so far as they did not interfere with the provisions of that section. Indeed, there is nolanguage used that would indicate an intention to re-enact them, even if it could be done in such an informal way. But in so far as the custody and control of the funds are concerned, section 259 of the act of March 6, 1891, repeals the former acts in so far as they make the auditor or any other person the custodian of the funds, for such former act, in this regard, would be within the purview of and in conflict with sec❘tion 236 of the last act, providing that the fund shall be paid over to the township trustees, and that the surplus shall be expended for the use of the school revenue. It is clear, we think, that section 236 of the last act is in force, and by virtue of this section the township trustee is entitled to the dog fund, and therefore the appellee's relator was entitled to the payment of the order issued to him in full, without any deduction on account of the amount included in it on account of thedog fund. It is possible that the provisions of an act prior to the act of March 6, 1891, in so far as they relate to the mode of proof of damages for sheep killed, and the payment of the same, may be in force, as they arenotinconflict with the latter act; but this question is not before us. It is

9 repeals alllaws and parts of laws in conflict with the provisions of the act, and section 10 contains an emergency clause. It is evident that this act was intended to supersede all previous laws relating to the taxation of dogs. It was certainly intended to be broad enough in its provisions to require the registration of all dogs, and it changes the disposition of funds to be derived from the taxation of dogs, and applies it to the payment of damages sustained by owners of swine, cattle, horses, and sheep, instead of sheep alone. On the day following, March 6, 1891, another act was passed, entitled "An act concerning taxation, repealing all laws in conflict therewith, and declaring an emergency." By section 47 of the latter act (Acts 1891, p. 210) it is provided that the assessor shall list every dog over the age of six months within his township to the persons owning, keeping, or harboring the same, and such person shall be charged, on the duplicate, one dollar if a male and two dollars if a female dog, and the further sum of two dollars for each additional dog beyond one, which amounts so charged shall be carried to the column of total amounts, and collected as other taxes are collected:“provided, that nothing in this act shall be so construed as to repeal or modify any of the provisions of an act to provide for the taxation of dogs, etc., in force March 7, 1883, and an act to amend section 8 of said | contended that the first paragraph of an

act of March 7, 1883, approved April 8, 1885, both of which acts shall remain infull force and effect." Section 236 of the same act (Acts 1891, p. 286) provides that "the revenue from the tax on dogs in each township shall be set apart by the county auditor at such annual settlement, and the same shall be paid over by the county treasurer to the proper township trustee. The sums so collected and received in each township are hereby declared to be a fund for the payment of damages sustained by the owners of sheep maimed or killed by dogs within such township; and each township trustee is directed and required to hold the same for such purposes: provided, that when it shall so happen on the first Monday of March in each year in any township that the said fund shall accumulate to an amount exceeding fifty dollars over and above orders drawn against the same, then the surplus over said sum of fifty dollars shall be expended by such trustee for the use of the school revenue of the township." By section 259 of the same act "all laws and parts of laws within the purview of this act, including 'An act to render uniform the assessment of personal property in the several townships of the different counties,' approved March 8, 1889, are

swer is good by reason of the fact that it is a general plea of set-off, alleging an indebtedness of $111.28 by the trustees to the county, but we do not think it is. An indebtedness could only arise on account of an application or use of public funds, and to make a good answer the facts must be pleaded showing a right to withhold the payment of the warrant. There is no error in the record.

Judgment affirmed.

(133 Ind. 243)

OHIO & M. RY. CO. v. STEIN.1
(Supreme Court of Indiana. Dec. 17, 1892.)
PRACTICE ON APPEAL ADMISSIBILITY OF EVI-
DENCE-RECORD-REVIEW-SUFFICIENCY OF MO-
TION FOR NEW TRIAL-WAIVER OF DEFECTS.

1. Plaintiff, as a witness, made certain statements as part of an answer to a proper question, and in connection with other competent evidence, which defendant moved to strike out, and stated the reasons therefor. The motion was overruled, and defendant excepted. The motion for a new trial stated "that the court erred in permitting plaintiff, while testifying as a witness in his own behalf, to testify to the following, to wit: That after the accident resulting in the injuries complained of, and after plaintiff had received said injuries, he (plaintiff) asked the engineer, B., how this

hereby repealed." At the time this latter | happened, [referring to the accident, and that

6

he and those claiming under him continued in possession after the death of the judgment debtor, which occurred 10 years after the purchaser took possession; that the former's wife, under whom plaintiff claimed as heir, then was entitled to one third of the land, but did not assert her right. Held, that the possession of defendants and their predecessors was adverse, and not as cotenants.

2. Where it appears that the purchaser was also assignee of a judgment of foreclosure against both the former owner and his wife, at the time of the death of the former, and that neither the wife nor plaintiff attempted to assert the right to one third of the premises until the decree of foreclosure was barred, there are, in equity, as strong reasons for applying the statute to the plaintiff as for applying it to the decree.

On rehearing. Petition overruled. For report of decision on appeal, see 30 N. E. Rep. 509.

was error in refusing to strike out the | puchaser's title would have been perfect; that last sentence of Stein's evidence of Brumley's statement. It was specifically referred to in the motion for a new trial, and is shown on page 76, lines 9 to 11. He said: 'If that man last night would have fixed that cylinder cock as I told him, you would not have been hurt.' This statement was not questioned or explained by counsel for the appellee, but, on the contrary, counsel for appellee said in his brief: 'It follows, it seems to us, from the weight of authority and upon principle, that the court below was right in admitting Brumley's statement as evidence, without invoking its discretionary power over the matter. And the whole of Brumley's statement, including the last sentence, 'If that man last night would have fixed that cylinder cock as I told him, you would never have been hurt,' was competent evidence. Two objections were made to this sentence: (1) That it was uttered in the absence of any agent of the defendant, *and the testimony thereof is hearsay.' (2) Not a part of the res gestæ, because made wholly after the accident and injury complained of. We have shown that it was part of the res gestæ, and therefore that it was uttered in the absence of defendant's agent is a worthless objection. We need say nothing more on the question of res geste. Was it hearsay?"-and proceeded to discuss the question. After a question has been treated in this manner by counsel, and considered and decided by the court, we cannot permit parties to come into court on a petition for rehearing, and successfully urge as a ground for the granting of a rehearing that the reason assigned in the motion for new trial is too informal, and fails to point out with sufficient certainty the particular ruling which was erroneous. Such a practice would lead to endless confusion and uncertainty, and we can see no reason why there should be a departure from the general rule in this case. There is nothing in the record or brief of counsel for appellant to excuse counsel for appellees from an examination of the record, and controverting the fact as to whether the question decided was properly presented. The rule, even in cases where new trials are granted, is that it is too late, after a new trial bas been granted, to object that the motion was not reasonably made. Kloster v. Elliott, 123 Ind. 176, 177, 24 N. E. Rep. 99. Parties must be diligent, and make their objection at a reasonable time; and after they have joined in a discussion, and obtained a decision, they cannot be heard to say that the question was not properly raised. The petition for rehearing is overruled.

(133 Ind. 169)

BARNES et al. v. BORN. (Supreme Court of Indiana. Dec. 16, 1892.) ADVERSE POSSESSION-COTENANCY-EQUITY.

1. In an action to recover an interest in real estate, it appeared that the person under whom, by descent and mesne conveyances, defendants claimed took possession of the whole premises as owner under a sheriff's deed; that, had the judgment debtor survived his wife, the v.32N.E.no.10-53

.

OLDS, J. Counsel for appellee have filed a petition for rehearing, and support it by an earnest and able argument, and cite numerous authorities on the question as to what constitutes an ouster, adverse possession, and that the occupancy of one cotenant in law is the occupancy of all the tenants, and not adverse to those out of possession; and counsel contend that the statute of 15 years' limitation only applies in partition suits where one of the cotenants has ousted his cotenant and occupied adversely to him, and further contend that in this case there is no ouster or adverse possession shown. As stated in the original opinion, we do not controvert any of the general principles so earnestly contended for by the counsel. In this case the party took possession of the real estate, not as a cotenant, but as purchaser and owner of the premises. At the time he took possession, in pursuance of the purchase at the sheriff's sale, he bad the right to the possession of the whole premises, and he had the right to the rents for the whole premises. Had Mr. Born, the judgment defendant, survived his wife, the purchaser's title, by virtue of the purchase, would have been perfect to the whole premises. Thus, when the purchaser took possession under the purchase, he did so as owner, and entitled to the possession of the whole, and net as a part owner or as cotenant with any person. Barnes, the purchaser, afterwards died, and the land went by descent to his heirs, and through mesne conveyances the title and possession passed to the appellants. Barnes and those claiming under and through him continued the possession of the land after the death of Born the same as before.

The law fixes the status by which Barnes, the purchaser, took possession and held the land. He took possession of all of the land, and received all the rent for the same, because he had the legal right to the whole. No person, prior to the death of Born, had any right to occupy the land with him, or to have any share of the rents. Having taken possession and taken all the rents, he continued to hold possession and receive and use all of the rents until his death, when his heirs did likewise, until they sold it, and turned the possession over to their grantees, who