I couldn't say. Q. 11. Well, you consulted with Wilhide and Neidig with reference to this matter? A. Yes, sir. Q. 12. And then what did you do with reference to removing these old wood posts? Did you cause them to be removed? A. Yes, sir. Q. 13. Did you employ men for that purpose? A. Yes; Jacob Ogle and William Brown. Q. 14. Did you go round there yourself to see whether this work was being done? A. Yes, sir. Q. 15. Do you know that the work was done by these men that you employed? A. Yes, sir. Q. 16. For whom did you employ these men? A. I didn't say at the time who employed them. I just told hemQ. 17. They weren't working for you personally? A. Working for me? Q. 18. As marshal of the city? A. Yes, sir. Q. 19. They were working for the city? A. That is where they got their pay. Q. 20. After they did this work, you made out a bill for their labor? A. Yes. sir. Q. 21. And O. K.'d the bill as marshal of the city? A. Yes, sir. Q. 22. And the bill was paid by the city? A. Yes, sir." If there was no evidence here except that the city marshal caused the work to be done, and the post to be removed, after consultation with two members of the city council, we would feel compelled to decide that the city was not responsible for the unauthorized act of the marshal. It is said in Cook v. City of Anamosa, 66 Iowa, 427, 23 N. W. 907: "There was evidence tending to show that the city marshal was informed, a few days before the accident, of the defect in the walk, but no steps were taken by the city to repair the walk until after the injury occurred. The marshal was not charged, either by statute or ordinance, with any duty with refer ence to the inspection or repair of streets or sidewalks. By an ordinance of the city it was made the duty of the street committee to examine the sidewalks, and they were empowered to order that any sidewalk be repaired by the property owner on whose property it abutted, and they had authority to direct the marshal to notify the property owners to make the repairs which they ordered. But he was not charged with any duty, or clothed with any power, to make repairs, or determine that any should be made. He was simply a peace officer, having power to make arrests, and to serve such writs and execute such processes as should be directed to him. The city would undoubtedly have been affected by any notice of the defect given to its mayor, for he is its executive officer, and is clothed with general executive powers. It would likewise have been affected by notice to its council, for that body is charged with the duty of making provision for the repairs and improvements of its streets and walks; and, as the duty to inspect the sidewalks and order their repair was specially imposed upon the street committee, the city would doubtless have been affected by any notice of the defect which had been given to that committee, or the individual members of it. But we think the circuit court correctly held that it was not affected by the notice given to the marshal. That officer, as we have seen, was charged with no duty with reference to the matter. He was not required, in the discharge of any of his official duties, to repair the defect; nor had he any power to order such repair to be made by any other person; nor was he required, in the discharge of any official duty, to communicate to the mayor, or council, or street committee the information which he had received concerning the defect. It cannot be said, then, that he was negligent in not communicating it, nor can the city be charged with negligence because of his failure to take any action with reference to it." But the question here is not one of notice to the city through its marshal or members of its conmon council, but whether the removal of the post, and the leaving open the hole and exc:vation, were the acts of the city, or of i agents, for whose torts it is responsible. T general statute for the incorporation of cities makes the marshal the chief ministerial off!cer of the corporation. Burns' Rev. St. § 3510 (Rev. St. 1881, § 3075; Horner's Rev. St. § 3075). If required to do so by the commen council, or by the mayor, or committee on streets, properly authorized thereunto, it wou'd become his duty to remove an obstructi from a street, and such obstruction might consist of a hitching post, or a decayed hitchir rack. In this case the marshal did perfor n a ministerial act on the part of the city, ari did it in such a negligent manner that a nisance was created, resulting in an injury to the appellee. The bill of expenses for the work was made out and approved by the mar shal, was presented to the proper city authority, and was paid by the city. Under these circumstances we must presume that the act of the marshal in employing laborers and directing them to remove the posts was authorized by the common council, or by its comm ttee on streets, and, therefore, that the city became responsible for the injury resulting from the negligent manner in which the work was done. The fact that the men employed by the marshal were paid by the city for doing the work was neither denied nor explained. If the marshal had been acting without authority, it is not at all probable that the city would have paid a bill incurred by him without the knowledge of the mayor, or coinmon council, or street committee. We cannot escape the conclusion that the payment of the bill for this work by the city implied the previous authorization of the marshal to employ the laborers, and to cause the work to be done. In our opinion, the evidence is sutlicient to sustain the verdict. The last point made on behalf of the app llant is that the damages are excessive. W le the amount assessed was large, it must be borne in mind that the injuries of the appellee were very serious, and were shown to be permanent in their character. The jury found by their special verdict that the appellee was disabled from performing manual labor, and that he would suffer great physical pain the remainder of his life. We cannot say that the amount allowed him indicates that the minds of the jurors were influenced by improper notives or feelings, or that it is evident that they overestimated the amount necessary to compensate the appellee for the injury he sustained. We are of the opinion that the court did not err in requiring the appellee to enter a remittitur of a portion of the damages assessed by the jury, and, upon such entry being made, overruling the motion for a new trial. It is said that remittiturs are favored by the courts. Howard v. Grover, 28 Me. 97. The practice has been recognized by the courts as a proper one from an early day. Cro. Car. 192; 16 Am. & Eng. Enc. Law, p. 593, note 2. And a new trial may be refused in actions ex delicto, if the plaintiff remits damages to such an amount as the court deems proper. Id. p. 593, note 4, and cases cited. Finding no error in the record, the judgment is affirmed. BAKER, J., was absent. (153 Ind. 345) STATE v. TURLEY. 1. A grand jury investigating bribery charges may require a witness to testify to all matters which will aid it to return an indictment upon legal evidence; and all such testimony is touching a matter material to the point in question, so that, if false, such witness is subject to prosecution for perjury. 2. When a witness who could decline to an swer questions concerning statements made by him on the ground that it would tend to criminate him voluntarily answers same, and his testimony is false, or partly false, he is subject to prosecution for perjury, the same as any other witness. ty. ence and hearing of Noble McPheeters and Robert Ellston that he, said Turley, had paid said Duncan the sum of $25 at three different times, and subsequently had met said Duncan in the city of Bedford, in said state, and offered him $100, which sum he refused, because the same was not large enough to further corrupt him, and influence his actions and conduct as such engineer. The falsity of the testimony is specifically alleged, and it is also averred that whether appellee made such statement, setting it forth, was material to the point in question before the grand jury. It has been held by this court that the position of engineer or surveyor of gravel roads, created by our statutes, is an office of trust and profit under the laws of this state, within the meaning of section 2096, Burns' Rev. St. 1894 (section 2009, Rev. St. 1881; section 2009, Horner's Rev. St. 1897), concerning bribery of public officers. State v. Duncan (this term) 54 N. E. 1066; State v. Ray (this term) 54 N. E. 1067. The grand jury had jurisdiction to investigate and return indictments for all felonies committed within the jurisdiction of the circuit court of said county. Sections 1366, 1721, 1735, Burns' Rev. St. 1894 (sections 1314, 1652, 1666, Rev. St. 1881; sections 1314, 1652, 1666, Horner's Rev. St. 1897). The duty of the grand jury is to "diligently inquire," to obtain "legal evidence," to discover and detect crime, and for that purpose they have the right to interrogate witnesses concerning all matters which may tend to accomplish that result. It is evident that the grand jury, in making the investigations required by law, Appeal from circuit court, Lawrence coun- may require witnesses to testify concerning Indictment against Henry Turley for perjury. Motion to quash being sustained, the state appeals. Reversed. James A. Zaring, Pros. Atty., and W. L. Taylor, Atty. Gen., for the State. MONKS, J. The indictment charges the appellee with the crime of perjury, under section 2093, Burns' Rev. St. 1894 (section 2006, Rev. St. 1881; section 2006, Horner's Rev. St. 1897). Appellee's motion to quash was sustained, and the state appeals. It appears from the indictment that appellee was a contractor for the construction of certain gravel roads in Lawrence county, in this state, and that one William Duncan was, by appointment, engineer thereof, and that the grand jury were investigating charges of bribery against appellee and against said Duncan, as engineer of said gravel roads; that said appellee appeared before said grand jury, and, after being duly sworn by the foreman as a witness, he did then and there, while testifying as such witness, feloniously, willfully, corruptly, and falsely depose, swear, and testify, in substance, among other things, that he, the said Turley, did not, in the month of June, 1898, at Lawrence county, Ind., say to and in the pres matters not admissible on the trial of a It is true that an indictment should be returned upon "legal evidence," but the grand jury may require witnesses to answer questions tending to show where, and from whom, they may obtain such evidence. All such testimony before the grand jury is, therefore, "touching a matter material to the point in question." It must appear from either the facts alleged in the indictment, or by a direct allegation to that effect, that the testimony claimed to be false was given "touching a matter material to the point in question." State v. Sutton, 147 Ind. 158, 46 N. E. 468. In this case the materiality of the testimony alleged to be false appears not only from the facts alleged, but from the specific allegation to that effect, made in the language of the statute. It may be that appellee could not have been required to answer any questions in regard to statements made by him, if any, concerning his bribing or offering to bribe the engineer, or to testify to anything connected therewith, if he had declined to answer on the ground that his answer would tend to criminate him; but, when he testified, if his testimony, or any part thereof, was false, he was subject to prosecution for perjury, the same as any other witness. Gillett, Cr. Law (2d Ed.) § 691. Judgment reversed, with instructions to overrule the motion to quash, and for further proceedings not inconsistent with this opinion. (23 Ind. App. 110) CITY OF ALEXANDRIA v. BOARD OF COM'RS OF MADISON COUNTY. (Appellate Court of Indiana. Oct. 24, 1899.) PRISONS-OBLIGATION OF CITY TO CARE FOR COUNTY PRISONERS. 1. The obligation of allowing prisoners to be temporarily confined in a city jail until they can be transported to the county jail is an obligation imposed upon cities by Burns' Rev. St. 1894, § 3541, subd. 44, and the city must bear the expense of caring for such prisoners until they are delivered to the sheriff of the county. 2. There is no statute in Indiana under which a county can be held liable to a city located in such county for the board of prisoners incarcerated in a city jail, nor liable to the city for the expense of transporting such prisoners from the city to the county jail. persons punishable by indictment or presentment, temporarily, until they can conveniently be moved to the county jail. So far as the same may be applicable, the laws governing county jails shall be the laws of such city prison, and in all cases where the county jail is convenient, it may be used for city purposes until a city prison shall be erected." Under this statute, it was very early held by the supreme court that the city, and not the county, was liable for the expense of keeping prisoners of the city in a county jail. Commissioners v. Chissom, 7 Ind. 688. Under the law of this state, it is made the duty of the sheriff of the county to receive, care for, and board the prisoners committed to the county jail; a fixed compensation is allowed him for all such services; no person other than the sheriff is authorized to do this work; and there is no statute permitting the board of county commissioners to pay any other person for such services. In the case of Com Appeal from circuit court, Madison county; missioners v. Gresham, 101 Ind. 53, it was John F. McClure, Judge. Action by the city of Alexandria against the board of commissioners of Madison county. From a judgment for defendant, plaintiff appeals. Affirmed. James A. May, for appellant. Chipman, Keltner & Hendee, for appellee. HENLEY, J. There are two novel questions presented by the record in this cause: (1) Is a county liable to a city located in said county for the board of prisoners incarcerated in a city jail? (2) Is a county liable to a city located in said county for the expense of transporting prisoners from the city to the county jail? Appellant filed claims with the board of commissioners of Madison county for the board of certain prisoners incarcerated in appellant's jail, and for the expense of transporting certain prisoners from said jail to the county jail at Anderson, in said county. These claims were, by the board of commissioners of said county, disallowed and rejected. Appellant thereupon brought this action in the circuit court of said county. The complaint is in three paragraphs. The first paragraph of complaint embraces both claims; the second seeks to recover only for the board of certain prisoners; the third only for their transportation from the city jail to the county jail. Appellee's demurrer for want of facts was sustained to each paragraph of the complaint. The questions, as above stated, are squarely presented. Section 3541, subd. 44, Burns' Rev. St. 1891, is cited by appellant's counsel. That subdivision of the statute provides that the common council shall have the power "to erect a prison or prisons within the limits of such city. And it shall be lawful to imprison therein persons convicted of offenses against the laws of such corporation, or for offenses against the penal laws of the state, and also said by Mitchell, J., speaking for the court: "That an individual is elected to the office of sheriff in a particular county, and because he thereby becomes ex officio jailer of that county, and responsible for the care and custody of the prisoners confined in the jail which is provided and maintained by law in that county, does not imply that the municipality shall come under any other obligation to him except that provided by the very terms of the statute. The statute prescribes specifically the duties of the sheriff with respect to receiving and caring for prisoners confined in the county jail, and fixes the compensation which shall be paid him for receiving, discharging, and boarding them; and when the county, through its board of commissioners, has provided a suitable jail, and maintains in it suitable furniture and appliances for its proper keeping, and pays the jailer the compensation specifically provided by statute, it has discharged its municipal obligation, and exhausted its corporate power over the subject." The obligation of allowing certain prisoners to be temporarily confined in a city jail until they can be transported to the county jail is an obligation imposed upon cities by the lawmaking power, and the expense of caring for such prisoners must be paid by the city, until they are delivered into the custody of the sheriff of the county. It is a part of the duty of a constable or city marshal to commit to jail, by order of court, prisoners in his custody, and for the discharge of such duty compensation is allowed by statute. Burns' Rev. St. 1894, §§ 8060, 8061; Id. §§ 3511, 3512. In no event, under the statutes of this state, could the county be held liable for such services. The courts of this state have uniformly held that a board of county commissioners cannot exceed the statutory provisions in the discharge of their various duties. Appellant's learned counsel has failed to point out to us any statute, and we believe there is none, authorizing such an allowance as the one claimed in this action. We find no error in the record. Judgment affirmed. (23 Ind. App. 702) SCHEIBER v. UNITED TEL. CO. (Appellate Court of Indiana. Oct. 27, 1899.) APPEAL JURISDICTION-TRANSFER. The appellate court has no jurisdiction of an appeal from a judgment in an action for the recovery of a money judgment, the amount in controversy being more than $3,500, and it will be ordered transferred to the supreme court. Appeal from circuit court, Huntington county; C. W. Watkins, Judge. Action by Peter Scheiber against the United Telephone Company. Judgment for defendant, and plaintiff appeals. Appeal ordered transferred to the supreme court. Spencer & Branyan, for appellant. Kenner & Lesh, for appellee. WILEY, J. Appellant sued appellee to recover damages for an injury received by a bolt or current of lightning inducted into his office by an alleged defective telephone wire placed and left there by appellee. The complaint is in three paragraphs, and in each of them appellant demands judgment in the sum of $5,000. To each paragraph of complaint appeilee addressed a demurrer, which was sustained, and, appellant refusing to plead further or amend, judgment was rendered against him for costs. This is therefore an action seeking the recovery of a money judgment only, and the amount in controversy being more than $3,500, as shown by the prayer of the complaint, the jurisdiction is in the supreme court. This court has not jurisdiction, and the case is ordered transferred to the supreme court. (23 Ind. App. 130) SPRINGFIELD ENGINE & THRESHER -LIMITATION OF ACTIONS-JUDG- 1. An answer alleging "that plaintiff's cause of action alleged in each of said paragraphs accrued more than three years before the bringing of this action to review the judgment described in each paragraph of said complaint" is an argumentative pleading, stating a legal conclusion, and a demurrer thereto is properly sustained. 2. Where an amended complaint to review a judgment sets up the same cause of action asserted in the original complaint, which was not barred by the statute of limitations, an answer that the cause of action mentioned in the amended complaint did not accrue within the time limited by the statute is bad on demurrer. 3. In an action to review a judgment for new matter discovered after its rendition, it appeared that plaintiff, as agent of defendant, sold a threshing machine to certain persons, who in payment executed their notes to defendant, which plaintiff indorsed under his contract of agency, requiring him to guaranty payment of all notes where the makers had no defense to them. Defendant sued on said notes, making plaintiff a defendant as an indorser, and judg ment was rendered against him on default. Afterwards, and in the same action, judgment was rendered for the makers on the ground that there had been a failure of consideration, the machine not being according to warranty. Plaintiff had no knowledge at the time judgment was rendered against him that the makers had any defense. Held, that he was entitled to have the judgment against him reviewed. Appeal from circuit court, Howard county; W. W. Mount, Judge. Action by James B. Michener against the Springfield Engine & Thresher Company to review a judgment. There was a judgment for plaintiff, and defendant appeals. Affirmed. B. C. Moon and Blacklidge, Shirley & Wolf, for appellant. Kirkpatrick, Morrison & McReynolds, for appellee. BLACK, J. On the 14th of June, 1892, the appellee filed in the court below his complaint against the appellant and Edgar A. Simmons, sheriff, concerning which the supreme court, in Michener v. Thresher Co., 142 Ind. 130, 137, 40 N. E. 681, said: "The general prayer for relief was broad enough in this case to have justified the court in awarding the legal relief of a review of" a certain judgment therein referred to and described, which was rendered in favor of the appellant herein against the appellee herein, upon his default, on the 12th of July, 1890; "and the facts stated in the complaint only lacked one element to entitle the plaintiff [the appellee herein] to the legal relief of a review, and that was to file a transcript of the record of the judgment referred to and described in the complaint. The facts stated did not entitle the plaintiff to equitable relief by way of injunction, because they show that he had an ample legal remedy by review, but did not, as before observed, justify the dismissal. It did not state facts sufficient to warrant the legal relief by way of review, because it did not set forth as an exhibit thereto a complete transcript of the judgment, or so much thereof as is necessary to fully present the error complained of. For that reason the court ought to have sustained the demurrer to the complaint, and allowed the plaintiff to amend his complaint in this respect, if he so desired." And the court reversed the judgment and remanded the cause, with instruction to overrule the motion of the defendants to dismiss, and to sustain the demurrer to the complaint, with leave to the plaintiff to amend his complaint, if he should so desire. A petition for a rehearing was overruled in that case September 26, 1895. On the 30th of October, 1895, the appellee filed an amended complaint; and on the 6th of April, 1897, the appellee, with leave of court, filed his amended complaint against the appellant in two paragraphs. A demurrer to each of these paragraphs for want of sufficient facts was overruled. Each paragraph stated substantially all the facts contained in the complaint, which the supreme court held to be not so defective as a complaint for review that it might not be amended and made sufficient by setting forth as an exhibit thereto a transcript of the judgment to be reviewed. Each paragraph of the amended complaint contained some averments additional to those of the original complaint, and was modeled as a complaint for review, and a transcript of the judgment to be reviewed was set forth as required by the supreme court. There could be no available error in the action of the court in holding each paragraph of the complaint sufficient on demurrer. action did not accrue within six years next before the commencement of the action, and that the issue tendered by it was immaterial, "as the vital time is the commencement of the action." Where the amended complaint does not set up any right not asserted in the original complaint, the answer that the cause of action mentioned in the amended complaint did not accrue within the time limited by the statute is bad on demurrer. Evans v. Nealis, 69 Ind. 148. The appellant's second paragraph of answer was to the effect that the cause of action alleged in the amended complaint accrued more than three years before the bringing of this action as an action to review the judgment. This was not improperly treated by the court as an argumentative pleading, stating a legal conclusion. It was not alleged that the judgment was not rendered within three years before this proceeding was commenced, or before the filing of the complaint, or that the cause of action stated in the amended complaint did not accrue within three years before the commencement of this proceeding or before the filing of the complaint. It must be held by us, following the supreme court, that the cause of action stated in the amended complaint was not a different one from that for which the proceeding was commenced in 1892, notwithstanding the differences which we have noted; and, where this is true, the amended complaint is not subject to attack by the statute of limitations. If, by a comparison of the There was an answer of general denial, and there was also a second paragraph of answer, a demurrer to which was sustained. In this second paragraph, addressed to each paragraph of the amended complaint, it was alleged "that the plaintiff's cause of action alleged in each of said paragraphs accrued more than three years before the bringing of this action to review the judgment described in each paragraph of said complaint." In Rosa v. Prather, 103 Ind. 191, 2 N. E. 575, it was said that the statutory method of obtaining a review of a judgment is a special proceeding, to which the various statutes of limitations affecting other actions and proceedings have no application, and that the only limitations applicable to such a proceeding are those contained in the statute providing for the proceeding. In such a case as the one before us, which was a proceeding for review for material new matter dis-original and the amended complaints, it apcovered since the rendition of the judgment, the period within which the complaint for review be filed, as provided by the statute, is "within three years" after the rendition of the judgment, except that any person under legal disabilities may file such a complaint at any time within one year after the disability is removed. Sections 615. 616, Horner's Rev. St. (sections 627, 628, Burns' Rev. St.). In Rosa v. Prather, supra, it was held that there was no error in sustaining demurrers to certain replies addressed to the second and third paragraphs of answer. The form of the second paragraph of answer, as stated in the opinion of the supreme court, was "that the judgment complained of was not rendered within one year before the time of the commencement of this proceeding." The third paragraph was stated to be "that said judgment was not rendered within three years before this proceeding was commenced." No question was suggested as to the form of these answers. In Indianapolis, D. & W. Ry. Co. v. Center Tp., 130 Ind. 89, 28 N. E. 439, an answer averred that the money for the recovery of which the suit was prosecuted was paid to the township more than six years before the filing of the amended complaint in that cause. It was said by the supreme court, by way of objection to this pleading, that it was not averred therein that the cause of 55 N.E.-3 pears that the latter does not declare upon a cause of action different from that stated in the former, filed in due time, it has bern held that a demurrer to an answer of the statute of limitations, though pleaded in proper form to the amended complaint, should be sustained. See Railway Co. v. Gillison, 173 Ill. 264, 50 N. E. 657. This would seem to be a reasonable rule. At least, where it appears from the record, as it does here, that no right of a party has been abridged by a ruling of the court, there can be no available error in the ruling. The court rendered a special finding, stating the facts substantially as follows: The appellant, a foreign corporation, through Its agent, the appellee, sold to John H. Kennedy, Benjamin Hochstedler, and Christian Kly a certain steam vibrator separator, and its appliances, manufactured by the appellant, at the price of $415, to be paid as follows: $140 December 1, 1888, $137.50 December 1, 1889, and $137.50 December 1, 1890. The appellant so sold the machine upon a warranty that it was well and properly made, of good material, and that it would do as good work as other machines of like size in use throughout the country. On the day of said sale the three purchasers above named executed to the appellant their three promissory notes in settlement for the machine, for the amounts and due at the dates above mentioned. |