Blinks v. Defrees.

THOMPSON ET AL. v. SMITH.

[No. 19,604. Filed November 21, 1901.]

From Marion Superior Court; Vinson Carter, Judge.

Action by William C. Smith against Thomas L. Thompson and others to enforce lien for street improvements. From a judgment for plaintiff, defendants appeal. Affirmed.

S. N. Chambers, S. O. Pickens, C. W. Moores, and R. F. Davidson, for appellants.

HADLEY, J.-The record in this case presents only the identical questions decided at this term in Shank v. Smith, ante, 401, and upon the authority of that case the judgment in this case is affirmed.

THE STATE, EX REL. PEIFER, v. FISHER, MAYOR, ET AL. [No. 19,650. Filed November 21, 1901.]

From St. Joseph Circuit Court; W. A. Funk, Judge.

Action by Maurice Peifer against Manuel M. Fisher, Mayor of City of Mishawaka, and others for writ of mandate. From a judgment for defendants, plaintiff appeals. Affirmed.

T. E. Howard and E. A. Howard, for appellant.

DOWLING, J.-Application for a writ of mandate to compel the mayor and common council of the city of Mishawaka to prefer charges against the appellant, etc. Error is assigned upon the ruling of the court sustaining a demurrer to the complaint and alternative writ.

The complaint is similar in all respects to that in State, ex rel., v. Fisher, ante, 412, and on the authority of that case the judgment is affirmed.

BLINKS ET AL. v. DEFREES.

[No. 19,574. Filed November 22, 1901.]

From Laporte Superior Court; H. B. Tuthill, Judge.

Action by Calvert H. Defrees against William Blinks and others to enforce a lien for street improvements. From a judgment for plaintiff, defendants appeal. Affirmed.

J. F. Gallaher and C. W. Smith, for appellants.

M. T. Kreuger, C. R. Collins and J. B. Collins, for appellee.

VOL. 157-45

Hay v. Smith.

JORDAN, J.-Appellees successfully prosecuted this action in the lower court to foreclose a lien arising out of an assessment for the improvement of a public street in Michigan City.

The identical questions are involved as were presented and decided by this court in Leeds v. Defrees, ante, 392, and on the authority of that case these questions must be decided adversely to the contentions of appellants. The judgment is, therefore, in all things affirmed,

ROACH ET AL. V. SMITH.

[No. 19,606. Filed December 10, 1901.]

From Marion Superior Court; J. M. Leathers, Judge.

Action by William C. Smith against William M. Roach and others to enforce a lien for street improvements. From a judgment for plaintiff, defendants appeal. Affirmed.

S. N. Chambers, S. O. Pickens, C. W. Moores and R. F. Davidson, for appellants.

HADLEY, J.-The record in the above cause presents only the identical questions decided in Shank v. Smith, ante, 401, and upon the authority of that case the judgment in this case is affirmed.

DAVIS V. SMITH.

[No. 19,607. Filed December 10, 1901.]

From Marion Superior Court; J. L. McMasters, Judge.

Action by William C. Smith against Susan F. Davis to enforce a lien for street improvements. From a judgment for plaintiff, defendant appeals. Affirmed.

S. N. Chambers, S. O. Pickens, C. W. Moores and R. F. Davidson, for appellant.

HADLEY, J.-The record in the above cause presents only the identical questions decided in Shank v. Smith, ante, 401, and upon the authority of that case the judgment in this case is affirmed.

From Marion Superior Court; J. L. McMasters, Judge.

Action by William C. Smith against Oliver P. Hay and others to enforce lien for street improvements. From a judgment for plaintiff, defendants appeal. Affirmed.

Rowland v. City of Greencastle.

S. N. Chambers, S. O. Pickens, C. W. Moores and R. F. Davidson, for appellants.

HADLEY, J.—The record in the above cause presents only the identical questions decided in Shank v. Smith, ante, 401, and upon the authority of that case the judgment in this case is affirmed.

STEVENSON v. SMITH.

[No. 19,605. Filed December 13, 1901.]

From Marion Superior Court; J. L. McMasters, Judge.

Action by William C. Smith against James Stevenson to enforce a lien for street improvements. From a judgment for plaintiff, defendant appeals. Affirmed.

S. N. Chambers, S. O. Pickens, C. W. Moores and R. F. Davidson, for appellant.

HADLEY, J.—This record presents the identical questions decided in Shank v. Smith, ante, 401, and upon the authority of that case the judgment in this case is affirmed.

ROWLAND v. CITY OF GREENCASTLE.

[No. 18,883. Filed January 9, 1902.]

From the Putnam Circuit Court; S. M. McGregor, Judge.

Action by City of Greencastle against Daniel B. Rowland for violating a city ordinance. From a judgment for plaintiff, defendant appeals. Reversed.

H. C. Lewis, B. F. Corwin, J. E. Lamb, J. T. Beasley, W. W. Woollen and Evans Woollen, for appellant.

G. C. Moore, T. T. Moore and J. S. McClary, for appellee. DOWLING, J.-The questions presented in this cause are substantially the same, and are between the same parties as in the case of Rowland v. City of Greencastle, ante, 591.

On the authority of that case the judgment is reversed, with directions to overrule the demurrer to the second paragraph of the appellant's answer, to sustain the motion for a new trial, and for further proceedings in accordance with said opinion.

INDEX.

ABATEMENT-See PLEADING.

ABORTION-Separate counts in affidavit and information charging
inconsistent means of producing abortion, see CRIMINAL LAW, 2;
Diehl v. State, 549.

-

-

Necessity to Save Life. - Evidence. — In a prosecution under §1996
Burns 1901, for abortion, the absence of necessity of producing the
abortion in order to save the life of the woman may be shown by
circumstantial evidence.
Diehl v. State, 549.

ADULTERATION—Of milk, see FOOD.

AFFIDAVIT-For continuance, see CONTINUANCE; Dunnington v.
Syfers, 458.

AFFIDAVIT AND INFORMATION-Separate counts charging in-
consistent means of producing abortion, see CRIMINAL Law, 2;
Diehl v. State, 549.

ANSWER-See PLEADING.

APPEAL AND ERROR-Prosecuting attorney may perfect appeal,
see CRIMINAL LAW, 32; State v. Sopher, 360.

Appeal by officer after expiration of term of office, see OFFICERS, 1,
2; Schrader v. State, ex rel., 341.

Rules of Supreme Court, see COURTS, 2; State v. Van Cleave, 608.
Consideration of evidence by Supreme Court in appeal from con-
viction for murder, see CRIMINAL LAW, 26; Keith v. State, $76.
Right to sell liquor pending appeal from an order granting license,
see INTOXICATING LIQUORS, 2-4; State v. Sopher, 360.

1. Case Within Jurisdiction of Justice of the Peace.-Under the
provision of the act of 1901 (Acts 1901, p. 566) no appeal lies to the
Supreme or Appellate Court from a judgment on a promissory
note not exceeding $200.
Shaul v. Citizens State Bank, 281.

2.

When no Appeal Lies.-Action Within Jurisdiction of Justice of
the Peace.-Statute.-The provision of $6 of the act of 1901 (Acts
1901, p. 565), denying appeals to the Supreme or Appellate Court in
civil cases within the jurisdiction of a justice of the peace, except
as provided in §8 thereof, applies to appeals from judgments ren-
dered before the act took effect taken thereafter.

Lake Erie, etc., R. Co. v. Watkins, 600.

3. When No Appeal Lies.-Action Within Jurisdiction of Jus-
tice of the Peace.-Under $5313 Burns 1901, giving justices of the
peace exclusive original jurisdiction in actions against railroad

(708)

APPEAL AND ERROR-Continued.

companies for stock killed when the damages do not exceed $50, and
concurrent jurisdiction with the circuit court when they exceed that
amount, an appeal from a judgment for $70 in such action is within
the prohibition of $6 of the act of 1901 (Acts 1901, p. 565), providing
that, except in certain cases specified in §8 thereof, no appeal shall
be taken to the Supreme or Appellate Court in any civil case which
is within the jurisdiction of a justice of the peace.

Lake Erie, etc., R. Co. v. Watkins, 600.
4. Action Begun Before Justice of the Peace.-The fact that the
constitutionality of a statute is involved does not render an action
begun before a justice of the peace in which the amount in con-
troversy does not exceed $50 appealable to the Supreme or Appel-
late Court under the exception in §644 Burns 1894 relative to ap-
peals, as such exception applies to ordinances of municipal cor-
porations. Colliery Engineer Co. v. American Car, etc., Co., 111.
5. Action to Establish Will.-An action to secure the probate
of an alleged will is an action to determine the property rights of
living persons, and an appeal in such a case is not governed by
S$2454, 2455 R. S. 1881, providing that appeals in matters con-
nected with decedents estates must be perfected within forty days
after final judgment.
Morell v. Morell, 179.

6. Right of Appeal.- Limitation.- Constitutional Law. The pro-
vision of $12 of the bill of rights that "all courts shall be open,"
etc., is fully satisfied by a trial in a court of competent jurisdiction
in which the right to a jury, in proper cases, as guaranteed by the
Constitution, is afforded. Lake Erie, etc., R. Co. v. Watkins, 600.
7. Right of Appeal.- Limitation.- Constitutional Law.- Under
S4, article 7, of the Constitution, providing that "The Supreme
Court shall have jurisdiction coextensive with the limits of the
State in appeals and writs of errors, under such regulations and
restrictions as may be prescribed by law" the legislature may not
only, from time to time, enlarge such jurisdiction, but it may also
contract the same as public policy may demand or require, and may
designate the amount that may authorize an appeal, and, within
reasonable limits, prescribe the class of cases in which appeals can
be taken, and from what courts or tribunals they may be prose-
cuted.
Lake Erie, etc., R. Co. v. Watkins, 600.
8. Repeal of Appealing Statute.-Prosecuting an appeal to the
Supreme or Appellate Court cannot be said to be the institution of
a suit within the meaning of $243 Burns 1901, providing that no
suits instituted under existing laws shall be affected by the repeal
thereof.
Lake Erie, etc., R. Co. v. Watkins, 600.
9. Repeal of Appealing Statute.-An appeal from a judgment
against a railroad company for stock killed is not for the recovery of
any penalty or for the enforcement of any liability within the mean-
ing of $248 Burns 1901, providing that the repeal of any statute shall
not have the effect to release or extinguish any penalty, forfeiture or
liability incurred under such statute unless the repealing act shall
so expressly provide, but the same shall be treated as remaining in
force for the enforcement of such penalty, forfeiture or liability.
Lake Erie, etc., R. Co. v. Watkins, 600.
10. Vacation Appeal.—Parties.—In order to give the Supreme Court
jurisdiction of an appeal taken in vacation, the assignment of er-
rors must contain the full names of all parties affected by the
judgment.
Smith v. Fairfield, 491.