Bryan v. Jones.

It is my judgment that the words in the remonstrance "in said aforesaid ward" are wholly meaningless. The word "aforesaid" means "said before, or in a preceding part; already described or identified." (Webster.) So far, therefore, as the body of the remonstrance goes it is a remonstrance against the appellee selling liquor in Bloomington township in the city of Bloomington. This, I take it, is not a substantial compliance with section nine of what is commonly known as the Nicholson law (§7283i Burns 1901, Acts 1895, p. 248), for there it is provided that the remonstrance must be against the sale of liquor in the township or city ward embraced within the application. If the application is to sell liquor in a township, then the remonstrance must be directed against the sale in such township; and if it be to sell liquor in a city ward, then the remonstrance must be directed against the sale in such ward. The remonstrance in this case does not comply with that provision of the statute in reference to city wards. The remonstrance in terms says: "The undersigned residents and voters in Bloomington township, Monroe county, and in the city of Bloomington." The persons remonstrating might have been residents and voters in Bloomington township and in the city of Bloomington, but not necessarily residents and voters of the first ward of said city, and as only the legal residents and voters in the ward in which the application to sell was made are proper remonstrators, the remonstrance is insufficient because of the failure to show such fact.

The rule in this State, established by the authorities, is that upon an appeal to the circuit court from a proceeding before the board of commissioners, the issues made before the board may be amended. Hedrick v. Hedrick (1876), 55 Ind. 78; Goodwin v. Smith (1880), 72 Ind. 113, 37 Am. Rep. 144; Stockwell v. Brant (1884), 97 Ind. 474; Hardesty v. Hine (1893), 135 Ind. 73.

And so, whether a remonstrance of this character is an "answer," "pleading," or "“document” (Ludwig v. Cory (1902), 158 Ind. 582), it is authorized by statute, and when it complies with the statute in all of its requirements it is a complete bar to the granting of a license. When

a statutory remonstrance is timely filed, the board of commissioners have no jurisdiction to proceed further.

There is no doubt but that upon an appeal from the board of commissioners to the circuit court a remonstrance may be amended. well v. Brant, supra; Hardesty v. Hine, supra.

Stock

The trial court should have allowed appellants to amend their remonstrance by inserting the words "first ward of" after the word "in" and before the word "the."

The views herein expressed as to the sufficiency of the remonstrance in its present form, and the ruling of the court in refusing to allow the amendment, are the individual views of the writer of this opinion. The judgment is reversed, and the court below is directed to grant a new trial.

Wabash Valley Coal Co. v. First Nat. Bank.

WABASH VALLEY COAL COMPANY v. FIRST NATIONAL BANK OF WABASH.

[No. 5,170. Filed February 1, 1905.]

From Parke Circuit Court; Howard Maxwell, Special Judge.

Action by the First National Bank of Wabash against the Wabash Valley Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

George S. Baker, for appellant.

S. D. Puett, J. S. McFadden and W. G. Todd, for appellee.

COMSTOCK, C. J.-Appellee brought this action against appellant on a promissory note executed by appellant to one Max Eichberg (who was president of the appellant corporation) and held by appellee by indorsement of said Eichberg. Appellant pleaded payment, to which answer appellee replied by general denial. A trial by the court resulted in a judgment in favor of appellee for the amount claimed.

It is contended by appellant that payment was made in full, before the commencement of the suit, to A. L. Kemper & Co., the duly authorized agent of appellee to collect the note.

Whether the payment was made and whether A. L. Kemper & Co. was the agent of appellee are the only questions involved in this appeal. We have carefully examined the evidence. It does not conclusively show that A. L. Kemper & Co. was the agent of appellee at the date named, and the plea of payment is lacking in a preponderance.

No useful purpose could be served by setting out the evidence or discussing it. It was sufficient to sustain the judgment, and the same is therefore affirmed.

INDEX.

ABATEMENT-

Of a temporary flowage nuisance, see NUISANCE, 1, 2; Baltimore, etc.,
R. Co. v. Quillcn, 330.

1. Death by Wrongful Act.—Survival for Widow and Next of Kin.-
An administrator can not maintain an action against the defendant
for damages for the death of his decedent by defendant's wrongful
act, where it is shown that such decedent left surviving a widow, who
died pending the action and before judgment, and two brothers and a
half brother, but no children, and where it is shown that such broth-
ers and half brother did not depend upon such decedent for support
nor have any pecuniary interest in his life.

Dillier v. Cleveland, etc., R. Co., 52.

2. Premature Action.-Where a property owner appeals from an order
of the city council making a certain assessment against his property
for costs of street improvements, an action to foreclose such assess-
ment lien is premature when commenced before final judgment in such
cause on appeal.

City Bond Co. v. Bruner, 659; City Bond Co. v. Wells, 675.

ABATEMENT AND REVIVAL—

On death of beneficiary, see ACTIONS, 2; Dillier v. Cleveland, etc., R.
Co., 52.

ACKNOWLEDGMENT

Signature of Notary.-Where the body of a notary's certificate contains
his name describing him as a notary public it is immaterial whether
he appends "notary public" to his name at the end of such certificate.
Indiana Nat. Gas, etc., Co. v. Leer, 61.

ACTION-

1.

Creation of by Statute.-Construction.—The right of action given
by $285 Burns 1901, Acts 1897, p. 227, is a new and independent one,
and not merely a continuation of the old action pending at the death
of the injured person.
Dillier v. Cleveland, etc., R. Co., 52.
2. Death of Beneficiary.-Abatement.—Where the beneficiary in a
statutory action for damages for decedent's death dies, such action
abates.
Dillier v. Cleveland, etc., R. Co., 52.

3. Premature Bringing.-Dismissal.-Where it appeared upon the face
of the complaint that the action was prematurely brought, such action
may be dismissed by motion of defendant. Cheek v. Preston, 343.

ADVANCEMENTS-

To agent, when collectible, see CONTRACTS, 3, 4; Arbaugh v. Shockney,
268.

(704)

AMENDMENT—

Of complaint obviates error on former demurrer, see PLEADING, 11;
Ellison v. Towne, 22.

Can not make by substituting personal representative of decedent for
heir after verdict, see PARTIES, 1; Baltimore, etc., R. Co. v. Gillard,
339.

ANIMALS-

Whether negligence to lead bear along street, see NEGLIGENCE, 1; Bos-
tock-Ferari Amusement Co. v. Brocksmith, 566.

1. Ownership.-An animal, ferae naturae, reduced to captivity, is the
property of its captor.

Bostock-Ferari Amusement Co. v. Brocksmith, 566.
2. Public Shows.-Right to Use Streets.-The exhibition of wild ani-
mals is a lawful business, and the use of the public streets is not
denied by law to the owner of wild or strange animals merely because
their appearance may be calculated to frighten a horse of ordinary
gentleness.
Bostock-Ferari Amusement Co. v. Brocksmith, 566.
3. Right to Transport.-The owner of a bear has the right to transport
it from place to place for a lawful purpose, and it is not negligence
per se for its owner to lead it along a public street.

Bostock-Ferari Amusement Co. v. Brocksmith, 566.

APPEAL AND ERROR—

When title to real estate involved, appeal from justice improper, see
COURTS, 1, 2; Deane v. Robinson, 468.

Party who did not appear before the board of commissioners may appeal
and question sufficiency of petition in highway case, see HIGHWAYS,
3; Scherer v. Bailey, 172.

An appeal from order of city council fixing street assessment to circuit
court vacates order of council as to whole assessment, see MUNICIPAL
CORPORATIONS, 1; City Bond Co. v. Bruner, 659.

Mandamus lies to compel trial judge to sign bill of exceptions, see MAN-
DAMUS, 1; State, ex rel., v. Adair, 622.

Evidence objected to on appeal for different reason than below, presents
no question, see EVIDENCE, 5; Avery v. Nordyke & Marmon Co., 541.

Form of demurrer raising no question, see PLEADING, 10, 11.

1. Final Judgment.—Dismissal.-Where a demurrer was overruled to
the first, third and fourth paragraphs of a complaint, and sustained
as to the second, an appeal by plaintiff, assigning as error the sus-
taining of such demurrer, without the rendition of any judgment in
such cause, will be dismissed. Ernest v. Grand Trunk, etc., R. Co., 409.
2. Separate Demurrers.-Joint Exception.-Where separate demurrers
were filed to the paragraphs of a complaint, but the exception was "to
which ruling of the court the defendant at the time excepted," such
exception was joint, and no error is presented on a separate assign-
ment.
Johnston Glass Co. v. Lucas, 418.
3. Judgment on Demurrer.-Exception.-Assignment Thereon.-Where
judgment was rendered against defendant on his failure to plead fur-
ther, "to which ruling of the court the defendant at the time excepts,"

VOL. 34-45

APPEAL AND ERROR-Continued.

and the defendant assigned as error that "the court erred in rendering
judgment for appellee upon demurrer," such assignment presents no
question.
Johnston Glass Co. v. Lucas, 418.

4. Joint Assignment.-Where instructions are jointly alleged to be
erroneous, if any one is good, no error is presented.

Central Union Tel. Co. v. Sokola, 429.

5. Brief.-Points.-Appellate Court Rules.-Where appellant's brief
does not contain any points and authorities on certain questions
raised, as required by Appellate Court rule 22, such questions will not
be considered.
Pittsburgh, etc., R. Co. v. Greb, 625.
6. Appellate Court Rules.-Where appellant assigns as error the sus-
taining of defendant's demurrer to plaintiff's complaint, but fails to
set out a copy of such demurrer in his brief, no question is presented.
Citizens Nat. Bank v. Alexander, 596.
7. Appellate Court Rules.-Failure to Observe.-Where question is
made on appeal as to the sufficiency of the evidence, but the appel-
lant's brief has not given a recital thereof, no question is presented.
Rush v. Kelley, 449.

8. Brief.-Appellate Court Rules.-Where appellant fails to set out
the evidence or to give a condensed recital thereof, and also fails to
set out the alleged erroneous instructions, or give a concise statement
thereof, no question is presented on the instructions or the sufficiency
of the evidence.
Woodard v. Dobyzkoski, 658.

9.

Bill of Exceptions.-Evidence.-Failure to Include All.-Where the
bill of exceptions shows that a plat was introduced in evidence, but no
plat is contained in the bill, the evidence is not in the record.
Pittsbrugh, etc., R. Co. v. Greb, 625.
10. Bill of Exceptions.-Time of Filing.-Presumption.-Where a bill
of exceptions shows it was signed on a certain day and the record
shows it was filed on the same day, it will be presumed that such bill
was signed by the judge before it was filed. Davis v. Neighbors, 441.
11. Bill of Exceptions.-Filing.-Failure to Show by Entry.-Nunc
pro tune. Where the bill of exceptions in a cause was filed, but no
entry made of such filing, an entry nunc pro tunc may be made
thereof, provided some note, minute, memorandum or memorial thereof
is made in writing at the time; and the judge's certificate to such
bill, together with the clerk's file mark, supplemented with parol evi-
dence, are suflicient to authorize such court to make such nunc pro
tunc entry.
Davis v. Neighbors, 441.
12. Bill of Exceptions.-Real Evidence.-Exhibit.—Where a number
of samples of paper were attached together and referred to on the
examination of witnesses during the trial as an exhibit, and these
were placed in the hands of such witnesses and they were asked to
state the character and quality of such paper as to its salable, mar-
ketable and merchantable qualities, but such samples were not intro-
duced in evidence, such samples are not part of the evidence in such
cause, and not necessary in the bill of exceptions.

White v. Cincinnati, etc., Railroad, 287.
13. Bill of Exceptions.—Maps.—Where maps were introduced in evi-
dence and witnesses were permitted to indicate their meaning by ref-
erence thereto, without using any apt language showing the location
of the things testified about, while not a commendable practice, yet,
where from a study thereof the real meaning may be understood, such
evidence constitutes a part of the record.

White v. Cincinnati, etc., Railroad, 287.