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(56 Ind. App. 206)
DARTER v. GRUBB et al. (No. 7,888.)1
(Appellate Court of Indiana, Division No. 2.
Oct. 8, 1913.)

1. PLEADING (§ 17*)-AVERMENT OF FACTS-
PARTICIPIAL PHRASES.

The rule that every material fact must be positively and directly alleged has been relaxed so that a fact pleaded by means of participial phrases will be given the same force as though it had been directly averred.

[Ed. Note.-For other cases, see see Pleading Cent. Dig. §§ 38, 41, 195, 350; Dec. Dig. §

17.*]

2. INSURANCE (§ 817*) BENEFICIARY CHANGE ASSENT OF OFFICER-DELEGATION -AUTHORITY.

Where insured was employed in the head office of a benefit society, and during the absence of a clerk authorized to indorse the society's assent to changes of beneficiaries, was performing her work, and, desiring to change the beneficiary on her own certificate, herself indorsed the approval of the supreme scribe to the change, and signed his name thereto, affixing the seal of the order, the burden was on the new beneficiary claiming the proceeds of the certificate to show that the insured in fact had authority to assent to the change for the society.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1999-2002; Dec. Dig. § 817.*] 3. APPEAL AND ERROR (8 1008*)-FINDINGS OF FACT-REVIEW.

Where a court or jury has found an ultimate fact as a result of inference from evidentiary facts, the Appellate Court cannot disturb the finding, unless the evidentiary facts are undisputed and are such that only one legitimate inference can be drawn therefrom, and that inference is opposed to that reached by the trial

court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. § 1008.*]

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

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this bill of interpleader the Supreme Tribe of
Ben Hur admitted its liability under the cer-
tificate for the full amount of $1,250, and al-
leged that each of the defendants were claim-
ing to be the beneficiary and to be entitled to
receive the insurance due under such certifi-
cate. It paid the money into court and asked
that the defendants be required to interplead
and that the court should determine as be-
tween them which was entitled to receive the
money.
The court made the order, and the
defendants filed pleadings and formed issues
under which the court made a special finding
of facts and pronounced its conclusions of
law thereon and rendered judgment in favor
of the mother, Emma Grubb.

[1] The first ground upon which appellant seeks a reversal is the action of the trial court in overruling his demurrer to the third paragraph of the cross-complaint of appellee, Emma Grubb. The only objection urged against the sufficiency of this pleading is that some of the material facts are assumed by the use of participial phrases and are not directly averred by the use of finite verbs. The strict rule that every material fact must be positively and directly alleged seems to have been somewhat relaxed in the recent decisions of this court and of the Supreme Court. It is now the rule that a fact introduced into a pleading by means of participial phrases will be given the same force and effect as though it had been directly stated. Agar v. State, 176 Ind. 234, 94 N. E. 819; Valparaiso Lighting Co. v. Tyler, 96 N. E. 768; Domestic Block Coal Co. v. De Armey (Sup.) 100 N. E. 675.

Under the authority of the cases cited, it must be held that the participial phrase, “the said John C. Snyder being the only person who had power or authority to authorize any. one to change the name of the beneficiary, etc.," has the same force and effect as a direct averment that the said John C. Snyder was the only person who possessed such pow

Bill of interpleader by the Supreme Tribe of Ben Hur to determine the rightful beneficiary under a beneficial certificate, as between Emma Grubb and John J. Darter, Jr. From a judgment awarding the proceeds of the certificate to Mrs. Grubb, Darter appeals.er and authority. The demurrer to this par

Affirmed.

agraph of cross-complaint was properly over

Finley P. Mount, of Indianapolis, for ap-ruled. pellant. Albert D. Thomas and Harry N. Fine, both of Crawfordsville, for appellees.

By his exceptions to the conclusions of law stated by the trial court, appellant calls in question the sufficiency of the facts specially LAIRY, J. On March 27, 1896, the Su- found to sustain the conclusions of law based preme Tribe of Ben Hur issued a beneficial thereon. Appellant contends that the facts certificate in the sum of $1,250 to Elizabeth specially found show that the holder of the D. Grubb, in which her mother Emma Grubb certificate, in her attempt to change her benwas named as the beneficiary. On Septem-eficiary, acted in substantial compliance with ber 16, 1908, Elizabeth D. Grubb attempted the by-laws of the Supreme Tribe of Ben to change the beneficiary under the certificate held by her, and to substitute her affianced husband, John J. Darter, Jr. The assured died on December 10, 1908. After the death of the assured the Supreme Tribe of Ben Hur filed a bill of interpleader making the appellant John J. Darter, Jr., and appellee, Emma Grubb, parties defendant. By

Hur then in force upon that subject; while appellee contends that the facts so found show that she wholly failed to comply with such by-laws, and that therefore her attempt to change the beneficiary was ineffective.

[2] As shown by the facts specially found, the Supreme Tribe of Ben Hur had in force certain laws regulating the manner in which

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Elizabeth D. Grubb was on the 16th day of September, 1908, and had been for a long time prior thereto, employed in the office of the Supreme Tribe of Ben Hur. The question as to whether she was or was not au

a member might change the beneficiary named in the certificate. Section 119 is as follows: "If a member desires to change his beneficiary or beneficiaries named in his certificate, he shall indicate the same in the blanks as provided on the back of his certifi- | thorized to approve a change of beneficiary cate, inserting and signing his name in full, in ink, just as written in the face of the certificate, and inserting the full name or names of his new beneficiary. His signature must be attested by the scribe of his court, and he shall pay the fee of fifty cents to the scribe, who shall forward said fee together with the certificate to the supreme scribe for the approval and official indorsement of said change."

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The facts specially found further show that Elizabeth D. Grubb filled out and signed the blanks on the back of her certificate, inserting the name of her new beneficiary, and that the scribe of the local court of which she was a member attested the signature and affixed the seal of the local court. She did not, however, deliver the certificate to the scribe of the local court to be forwarded to the supreme scribe for his approval and official indorsement, and it never was so delivered or forwarded. It further appears from the facts found that one John C. Snyder was the supreme scribe whose duty it was to approve and make the official indorsement of all changes of beneficiaries; and that he had delegated this power to one Minnie Brown, who was, at the time, employed as registry clerk, and had authorized her to approve such transfers and to make the official indorsement and affix his signature thereto. On September 16, 1908, Minnie Brown was taking her vacation and Elizabeth D. Grubb was doing her work in her abOn that day Elizabeth D. Grubb, in the absence of both John C. Snyder and Minnie Brown, indorsed the approval of the supreme scribe to the change of the beneficiary indorsed upon her own certificate and signed John C. Snyder's name thereto and affixed the seal of the Supreme Tribe of Ben Hur. She also changed the card index kept by the Supreme Lodge so as to show the change of beneficiary in her certificate.

.sence.

Appellant claims that the facts found by the court show that Elizabeth D. Grubb, while performing the work of Minnie Brown, had authority to represent the supreme scribe in approving the transfer, making the official indorsement, signing his name, and affixing the seal of the supreme tribe; and that the approval so made and indorsed by her is the · approval and indorsement of the supreme scribe.

over the signature of the supreme scribe was one of fact for the trial court. The burden of establishing such authority rested on appellant, as he could not prevail unless the change of beneficiary was approved by the supreme scribe or by his authority. The special finding nowhere states that Elizabeth D. Grubb was at any time authorized or empowered to approve a change of beneficiary over the signature of the supreme scribe. Her authority to so approve a change of beneficiary was an ultimate fact necessary to a recovery to appellant, and a failure to find such fact is a finding against him on that question. The special finding states the facts fully in relation to the work required of Miss Grubb while assisting Minnie Brown on previous occasions, and also the work that was required of her during the time that Minnie Brown was away on her vacation, as well as the directions and instructions which were given her relating to the performance of such work. These were all evidentiary facts from which the court might or might not infer the ultimate fact of authority. The court failed to find this ultimate fact in favor of appellant, thereby finding that such authority did not exist.

In

[3] Where a court or jury trying the facts of a case has found an ultimate fact as a result of inference, from certain evidentiary facts, this court cannot disturb such finding, unless the evidentiary facts are undisputed and are of such a nature that only a single inference can be legitimately drawn therefrom. such a case, if the inference thus forced is opposed to that reached at the trial, this court may draw the inference; but, where the evidentiary facts are of such a nature that men of equal intelligence and equal fairness might reach opposite conclusions as to the ultimate fact, the conclusion reached at the trial cannot be disturbed on appeal.

We do not consider it necessary to set out all of the facts found bearing upon the question of authority of Elizabeth D. Grubb to approve the change of beneficiary in question. It is sufficient to say that the facts so found have been carefully considered and that the court is of the opinion that they fully warranted the trial court in reaching the conclusion that she did not possess such authority.

Judgment affirmed.

(54 Ind. App. 129)
HERROLD v. WICKERSHAM. (No. 8,077.)
(Appellate Court of Indiana, Division No. 1.
Oct. 7, 1913.)

APPEAL AND ERROR (§ 1002*)-REVIEW-VER-
DICT-CONFLICTING EVIDENCE.

Where the evidence is conflicting and there is evidence tending to support every material averment of the answer, a verdict for defendant cannot be set aside.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]

Appeal from Circuit Court, La Porte County; James F. Gallaher, Judge.

Action by Henry Herrold against James F. Wickersham. From a judgment for defendant, plaintiff appeals. Affirmed.

Frank E. Osborn, Wm. A. McVey, and Lee L. Osborn, all of La Porte, for appellant. Hickey & Wolfe, of La Porte, for appellee.

new trial was overruled, and judgment rendered on the verdict.

The only error assigned is that the court erred in overruling appellant's motion for a new trial. A new trial was asked on the ground that the verdict of the jury is contrary to law and is not sustained by sufficient evidence.

Appellant insists that the record shows

by undisputed evidence that there was at least $50 due him. As shown by the pleadings, appellant and appellee differed as to the terms of the lease. Looking only to the complaint and the proof in support thereof, it appears that a balance is due appellant, but appellee was entitled to make proof according to the theory of his answer, which he did.

There is evidence tending to support every material averment of the special answer. This court does not weigh conflicting evi dence, and we cannot therefore say, as a matter of law, that the verdict is not supported by sufficient evidence or that it is contrary to law.

Judgment affirmed.

(56 Ind. App. 39) (No. 7,927.) 1 (Appellate Court of Indiana, Division No. 1 Oct. 10, 1913.)

BRADFORD v. WEGG et al.

FELT, J. This is a suit by appellant to collect rent from appellee. The complaint was in two paragraphs. The first alleges an indebtedness of $370.70 for grain, hay, and pasture, which amount it is charged defendant has appropriated to his own use. The second paragraph alleged that plaintiff on the 19th day of June, 1908, purchased and became the owner of a farm in La Porte county, Ind., which was at the time occupied by defendant as tenant; that by the 1. APPEAL AND ERROR (§ 294*)-PRESERVAterms of said purchase he was entitled to the landlord's share of the rents; that the defendant retained possession of the farm until March 1, 1909, and failed and refused upon demand to account to and pay plaintiff the rents from said land, which are shown by bill of particulars to be in part an acreage rental for pasture and part for hay, grain, and potatoes raised on the farm.

TION OF OBJECTIONS MOTION FOR NEW
TRIAL.

in which the finding and judgment of the court
Assignments of error alleging particulars
are not sustained by sufficient evidence, if avail-
able at all, are causes for a new trial, and are
not ground for independent assignment of error.

Error, Cent. Dig. §§ 1724, 1725, 1727-1735; [Ed. Note.-For other cases, see Appeal and Dec. Dig. § 294.*]

2. NEW TRIAL (§ 128*)-GROUNDS-FINDINGS CONTRARY TO LAW AND EVIDENCE-STATUTE.

Under Burns' Ann. St. 1908, § 585, subd. where "the verdict or decision is not sustained 6, providing that a new trial may be granted by sufficient evidence, or is contrary to law," the use of the word "finding," instead of "decision," in the motion for new trial in a case tried to the court, is not objectionable.

The complaint was answered by general denial and by a special paragraph of answer which alleges in substance that prior to plaintiff's purchase of said land defendant was, and for more than 20 years had been, in possession of said land as tenant of James Wickersham, the former owner thereof, who deeded the same to the grantors of plaintiff, with whom the same lease was continued; that plaintiff obtained title to said land with full knowledge of said tenancy and the terms thereof; that by the terms of said tenancy he was to pay a rental of $4 per acre for ten acres and give one-half the crops raised on the other land except certain pasture lands, the rent for which was paid for by him in labor; that defendant has fully complied with his lease and has paid and accounted for all rents due [Ed. Note.-For other cases, see New Trial, plaintiff according to the terms thereof. To Cent. Dig. §§ 257-262; Dec. Dig. § 128.*] this paragraph of answer plaintiff filed re- 4. QUIETING TITLE (§ 39*)-PROCEEDINGSply in general denial. The cause was subSUFFICIENCY OF CROSS-COMmitted to a jury, and a verdict was return

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.*] 3. NEW TRIAL (§ 128*)—GROUNDS-FINDINGS CONTRARY TO LAW OR EVIDENCE-STATUTE. Under Burns' Ann. St. 1908, § 585, subd. the findings in the judgment of the court were 6, a motion for a new trial on the ground "that not sustained by sufficient evidence, that the finding and judgment of the court is contrary to law," does not state a sufficient ground for the joining of separate grounds in that way, a new trial; since the statute does not permit and it is also ambiguous.

PLEADING

PLAINT.

A cross-complaint by a defendant in an aced for appellee. Appellant's motion for a tion to quiet title, alleging that she is the own*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

er in fee simple of the real estate in contro- | judgment of the court was not sustained by versy, that the plaintiff claims some right, ti- sufficient evidence." (2) "That the finding tle, or interest in the same, or a part thereof, which claim is unfounded and a cloud on her and judgment of the court is contrary to title, states a sufficient cause of action to quiet law." title.

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FELT, J. This is a suit by appellant against Fred J. Wegg, Martha R. Mathews, et al. to quiet title to certain real estate in the town of Gary, Lake county, Ind. Appellee Mathews filed a cross-complaint against plaintiff to quiet her title to the real estate in controversy. The court found for the cross-complainant and rendered judgment in her favor, quieting her title to said real estate, and also decreed that the plaintiff take nothing by his complaint. Appellant has appealed from this judgment and assigned ten separate specifications of error. [1] Assignments 2 to 9, inclusive, cover numerous particulars in which it is alleged the finding and judgment of the court are not sustained by sufficient evidence.

Waiving objections to the form of these assignments, it is sufficient to note that in so far as they might be available for any purpose, they are causes for a new trial and not ground for independent assignment of error, and are therefore unavailing. Migatz v. Stieglitz, 166 Ind. 361-364, 77 N. E. 400; Crawford v. State, 155 Ind. 693, 57 N. E. 931; Aurelius v. L. E. & W. R. R. Co., 19 Ind. App. 584, 595, 49 N. E. 857.

[2, 3] The first error assigned is that the court erred in overruling appellant's motion for a new trial. The new trial was asked on the grounds: (1) "That the finding in the

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The reasons for new trial here attempted to be alleged come under the sixth subdivision of section 585, Burns' 1908 Statutes. Where the trial is by the court the use of the word "finding" instead of "decision" does not render the assignment bad, but the statute does not authorize the granting of a new trial for the reasons stated in the motion. This provision of the statute authorizes the granting of a new trial where the decision of the court is not sustained by sufficient evidence, or where the decision is contrary to law. These are separate and distinct causes plainly stated in the statute, which does not authorize the joining of the two as was attempted in the motion for a new trial in this case. The statute is plain construed. We are not at liberty to enlarge and unambiguous and has been many times it or depart from the construction placed thereon by the Supreme and Appellate Courts in former decisions. The identical language employed by appellant in the second alleged cause for a new trial has been held insufficient and unauthorized by the statute. The language used in stating the first cause for a new trial is practically the same as that of the second, is ambiguous and is not authorized by the statute. The motion for a new trial fails to present any cause for a new trial authorized by the statute and is therefore insufficient. Hall v. McDonald, 171 Ind. 9-18, 85 N. E. 707; Lynch v. Milwaukee Harvester Co., 159 Ind. 675, 65 N. E. 1025; Gates v. B. & O. S. W. Ry. Co., 154 Ind. 338-342, 56 N. E. 722; Balph v. Magaw, Gdn., 33 Ind. App. 399-402, 70 N. E. 188; Famous Mfg. Co. v. Harmon, 28 Ind. App. 117-118, 62 N. E. 306; B. & O. R. Co. v. Daegling, 30 Ind. App. 180, 65 N. E. 761.

[4] The cross-complaint of Martha R. Mathews was against the plaintiff, Henry A. Bradford, and alleged in substance that she was the owner in fee simple of the real estate in controversy; that the defendant claimed some right, title, or interest in the same, or part thereof, which claim is unfounded and a cloud on cross-complainant's title thereto.

[5] The cross-complaint states a good cause of action and would have been sufficient to withstand a demurrer. But as questioned here for the first time on appeal, it falls within the rule that it will be held sufficient if it does not wholly omit any essential averment and is sufficient to bar another suit for the same cause of action.

There is no available error shown by the record.

Judgment affirmed.

(54 Ind. App. 151)
HOBART TP. v. 10WN OF MILLER.
(No. 8,042.)

(Appellate Court of Indiana. Oct. 8, 1913.)
1. TAXATION (§ 913*)-RECOVERY OF TAXES-
OFFENSES-LACHES.

A suit by a town against a township to recover taxes collected by the latter on taxables located within the town for the year in which the town separated from the township, not brought until a year and eight months had elapsed after the incorporation of the town and the cause of action accrued, was not barred by

laches.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1746-1750; Dec. Dig. § 913.*] 2. EQUITY ( 87*)-LACHES-LIMITATIONS.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 242-244, 395; Dec. Dig. § 87.*] 3. TAXATION (§ 913*)-COLLECTION-DISTRIBUTION-INCORPORATED TOWN.

first a general denial and the second a special answer to which appellee replied in general denial. Trial by court, finding and judgment for $2,418 for appellee.

It is alleged substantially that appellee is a municipal corporation under the laws of Indiana, incorporated on June 15, 1907, and appellant is a township located in Lake county, Ind.; that prior to June 18, 1907, the territory embraced within appellee town was a part of territory embraced within the limits of appellant. During the year 1906, and prior to the incorporation of the town, appellant collected from the treasurer of Lake county the sum of $5,000 as taxes While courts of equity are not bound by against all the property within the townthe statute of limitations, yet in applying the ship. Fifty dollars of this sum was exequitable doctrine of laches the court will look pended for the use of the territory within to and examine the statute of limitations and the town. The town was at that time enthe general effect of the statute on the parties to the action as well as the cause of action it-titled to $2,500. The total assessed value of self and consider its bearing on complainant's the property within the township in 1906 delay. was about $2,400,000 and the total polls about 203. The value of the property embraced within appellee town in 1906 was about $1,300,000 and the total polls about 150; that at that time no debts existed on account of the territory embraced in the town; that appellee is entitled to its proportionate share of said money so collected by taxation. In June and December, 1907, appellant collected from the treasurer of Lake county the sum of $5,037.47, assessed against all the property in said township, including property within the limits of appellee town; that appellee is entitled to $3,000 of said money. The total assessed value of taxable property in appellant township in 1907 was about $2,586,350 and the total polls about 176. The assessed valuation of property in appellee town was about $1,400,000 and the polls about 140; that appellee is justly and equitably entitled to be paid received from taxation in 1907; that the by appellant its just share of the money county treasurer and auditor of Lake county should have proportioned the sum of money so paid to appellant township in June and Action by the Town of Miller against December, 1907, according to the above proHobart Township of Lake County. Judg-portion, but they wrongfully paid the entire ment for plaintiff, and defendant appeals. amount to appellant township; that appelAffirmed.

Where a town had lawfully separated itself from defendant township of which it had previously formed a part, the town was thereafter entitled, under ordinary conditions, to recover whatever amount was collected for the year in which the separation occurred by the township as taxes levied against property embraced in the

town.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1746-1750; Dec. Dig. § 913.*] 4. TAXATION (§ 913*)-DISTRIBUTION-RECOVERY OF TAXES COLLECTED.

In a suit by a town to recover taxes collected by the township from which the town had separated, a presumption that the township officers had performed their duty and distributed the taxes in accordance with the law was overcome by a direct allegation of the complaint as to the manner in which the taxes were distributed and that no part was distrib

uted to the town.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1746-1750; Dec. Dig. § 913.*]

Appeal from Circuit Court, Lake County; Will C. McMahon, Judge.

McMahon & Conroy, Wm. W. McMahon, and Joseph H. Conroy, all of Hammond, for appellant. Ora L. Wildermuth, of Gary, for appellee.

lee has frequently requested appellant to pay the town its equitable proportion of the money received in 1906 and 1907; and that appellant has refused to do so. Prayer that the court determine what should be an equitable division of the money so received by SHEA, J. Appellee, the town of Miller, appellant township and render judgment brought this action against appellant, Hob- against it in favor of appellee for so much art township, to recover from the latter its as may be equitably due the latter, asking equitable share of money received from judgment for $5,000 and interest and all taxation by the township. Appellee town other equitable and proper relief. embraced territory that previous to its in- In an agreed statement of part of the corporation had been a part of appellant facts, the amount of taxes collected, and the township. Appellant's demurrer to the proportion of the assessed valuation of the amended complaint in one paragraph was property embraced within the territory of overruled. Answer in two paragraphs, the appellant and appellee in 1906, are found

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