titled to a verdict. Before plaintiff was entitled to a verdict, it was necessary for her to prove that her decedent had no knowledge of the defective condition of the machine which caused his death, and also that he could not have known of such defects by the exercise of ordinary care. It will be observed that this instruction makes no reference to decedent's knowledge or want of knowledge of the defects mentioned in said instruction. If the jury obeyed this instruction, they could return a verdict in favor of the plaintiff, even though they failed to find from a preponderance of the evidence that decedent had no knowledge of the defects complained of, or even though they were satisfied from the evidence that he did possess such knowledge. The giving of this instruction was prejudicial error which entitles appellant to a new trial. plead further, and the court rendered judgment in favor of appellee. Upon appeal, the only error assigned is the action of the court in overruling the demurrer to this paragraph of answer. Appellee insists that this court cannot consider the error thus assigned, for the reason that appellant has failed to comply with rule 22 of this court (55 N. E. v) in the preparation of her brief, so as to present the error in accordance with the requirements of said rule. Appellant's brief fails to set out the paragraphs of answer to which this demurrer was addressed, or to state its substantial averments. It has been uniformly held that said rule requires that the brief be so prepared that all questions presented by the assignment of errors can be determined from an examination of the briefs without looking to the record. Chicago, etc., R. Co. v. Walton, 165 Ind. 253, 74 N. E. 1090; Wolverton v. Wolverton, 163 Ind. 26, 71 N. E. 123; Lake Erie, etc., R. Co. v. Shelley, 163 Ind. 36, 71 N. E. 151. As the paragraph of answer to which the demurrer was addressed is not As a new trial must be granted for the error already pointed out, it is unnecessary to prolong this opinion in the consideration of other errors assigned, as the same questions may not arise upon a second trial. Judgment reversed, with directions to set out in the brief, and as its substantial grant a new trial. averments are not stated therein, it is impossible for the court to determine from the brief, without reference to the record, whether or not said answer contains facts sufficient to constitute a cause of defense. Tuthill Spring, etc., Co. v. Holliday, 164 Ind. (Appellate Court of Indiana, Division No. 2. 13, 72 N. E. 872; Knickerbocker Ice Co. v. BUCHER v. CAMERON, County Treasurer. (No. 7,084.) Oct. 13, 1911.) APPEAL AND ERROR (§ 757*)-BRIEF OF AP- Under Supreme and Appellate Courts rule 22 (55 N. E. v), requiring appellant's brief to contain a statement of so much of the record as presents the error relied on, the overruling of a demurrer to a paragraph of the answer will not be considered, where appellant's brief does not set out the paragraph, nor state its substantial averments. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] Appeal from Circuit Court, Huntington County; Levi Mock, Special Judge. Action by Eliza J. Bucher against Newton Cameron, Treasurer of Huntington County. From a judgment for defendant, plaintiff appeals. Affirmed. R. A. Kaufman, for appellant. C. W. Watkins and Bowers & Feightner, for appellee. Gray, 165 Ind. 140, 72 N. E. 869; Perry, Matthews, etc., Co. v. Wilson, 160 Ind. 435, 67 N. E. 183. Judgment affirmed. BALTIMORE & O. S. W. RY. CO. v. NEW (Appellate Court of Indiana, Division No. 2. 1. APPEAL AND ERROR ($ 832*)-REHEARINGGROUNDS-WANT OF JURISDICTION. The question of a want of jurisdiction of the subject-matter of the action, presented for the first time on petition for rehearing, will be considered, since the question of jurisdiction is of such a character that it will be considered at any time while the appeal is pending. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. 832.*] 2. COURTS (§ 289*)-STATE COURTS-JURISDICTION-INTERSTATE COMMERCE. LAIRY, C. J. This action was brought by appellant to enjoin the collection of certain taxes assessed against her, upon the ground Where the freight rate on an interstate that the property upon which said taxes shipment is that fixed by the interstate comwere assessed was not subject to taxation. merce law (Act Feb. 4, 1887, c. 104, 24 Stat. The complaint was held good on demurrer, 379 [U. S. Comp. St. 1901, p. 3154]), and that rate as the consideration for the carrier's servand the appellee then filed an affirmative an-ices becomes a part of the agreement between it swer, to which appellant filed a demurrer, and the shipper, the carrier's action to collect upon the ground that said answer did not an unpaid balance of the charges so fixed is not state facts sufficient to constitute a cause of founded upon an alleged violation of the interstate commerce law, of which the federal courts defense. The demurrer was overruled and alone have jurisdiction, but is an action for the exceptions taken. Appellant declined to collection of a debt which arose out of trans portation service rendered by the carrier, pursuant to an implied agreement, and the circuit court has jurisdiction thereof. [Ed. Note. For other cases, see Courts, Cent. Dig. 830; Dec. Dig. § 289.*] On petition for rehearing. Denied. ADAMS, J. [1] In a petition for rehearing, it is urged with much earnestness by counsel for appellee that the Floyd circuit court had no jurisdiction of the subject-matter of the action, and therefore this court could not acquire jurisdiction on appeal. If the first proposition is true, then the conclusion is obviously true. The question is presented for the first time on petition for rebearing. The rules provide that points, not made in the original briefs, will not be considered upon rehearing, but we think the question of jurisdiction is one of such a character that it should be considered by the court at any time while the appeal is pending. HOLDERMAN v. TOWN OF NORTH (Appellate Court of Indiana, Division No. 1. 1. MUNICIPAL CORPORATIONS (§ 408*) — As- Laws 1909, c. 172, amending Burns' Ann. St. 1908, § 8716, under which a proceeding for a street improvement and the assessment of benefits was pending, and which contained no saving clause as to pending assessments, took away all power to proceed further under the amended provisions. Corporations, Cent. Dig. 88 1005, 1006, 1183; [Ed. Note. For other cases, see Municipal Dec. Dig. § 408.*] 2. MUNICIPAL CORPORATIONS (§ 408*)—REASSESSMENT FOR BENEFITS. Under Burns' Ann. St. 1908, § 8716, which provided for the appointment of appraisers by the circuit court, when petitioned to do so, and assess the benefits from a street improvement, and the section which, both before and after amendment by Laws 1909, c. 172, provided that a petition seeking to modify an assessment must be filed within 10 days after the final order of the board approving the assessment, and that when the assessment roll is completed and deand which provided an appeal from the assessboard as to all benefits should be conclusive, ment of the town board to the circuit court, and a trial, as in other civil cases, the circuit court is not authorized to appoint new appraisers in a proceeding pending at the time of the amend ment. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 408.*] [2] In the original opinion, it was held that the complaint stated a cause of action for the collection of a balance due on interstate freight charges. This holding is not ques-livered as therein provided a decision of such tioned; but it is now insisted that the action was founded upon an alleged violation of the United States statute, known as "The Interstate Commerce Act," and that jurisdiction was in the federal, rather than in the state, courts. We cannot agree with counsel for appellee in this contention. It was clearly stated in the original opinion that the freight rate on the shipment in question was not, and could not be, a matter of negotiation between the shipper and the carrier. The only agreement that could be entered into by these parties was that which impliedly arose through the tender of the freight by appellee, and the acceptance of the same by appellant, for transportation and delivery at destination. The consideration for this serv ice was fixed by law, and became a part of the agreement. When the appellant undertook to deliver the goods of appellee at Hudson, N. Y., the lawful charge for such service was $114, which, presumptively, was known by both parties. For this charge the carrier was bound to render the service, and for this service the shipper was bound to pay the lawful rate. The complaint charges that the rate fixed by law, and which appellee was bound to pay, has not been paid in full, and to collect the unpaid balance the action was brought. The proceeding was not founded upon an alleged violation of a federal statute, but was to collect a debt which arose out of transportation service rendered by appellant, pursuant to an implied agreement. The Floyd circuit court had jurisdiction, not only of the parties, but also of the subject-matter. The petition for rehearing is overruled. 3. MUNICIPAL CORPORATIONS (§ 511*) - As SESSMENTS FOR BENEFITS-REVIEW-STATU- of streets and for the assessment of the cost [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 511.* For other definitions, see Words and Phrases, vol. 1, pp. 442-447; vol. 8, pp. 7577, 7578.] 4. MUNICIPAL CORPORATIONS (§ 511*)-STREET IMPROVEMENTS-ASSESSMENT APPEAL. Ann. St. 1908, § 8716), providing for assessUnder Laws 1905, c. 129, § 111 (Burns' ment of benefits for street improvements, and declaring that the reports of appraisers shall be conclusive on all the parties thereto, no appeal | benefits, and the section as amended provides lies from such reports of the appraisers. for an appeal from the assessment made by [Ed. Note.-For other cases, see Municipal the town board to the circuit court, and a Corporations, Cent. Dig. §§ 1183, 1184; Dec. trial of the case by the court, without a Dig. § 511.*] jury, "as other civil cases." The section, Appeal from Circuit Court, Wabash Coun- both before and after amendment, provides ty; A. H. Plummer, Judge. that the petition seeking to modify the assessment must be filed within 10 days after the final order of the board approving the assessment, and that when the assessment roll is completed and delivered as therein provided "the decision of such board as to all such benefits shall be final and con Action by Esther Holderman against the Town of North Manchester. Appeal by plaintiff from an action of the circuit court in overruling motion for new trial, and denying a petition for the appointment of appraisers in a drainage proceeding. Dismissed. Lesh & Lesh, for appellant. Sayre & Hun- clusive," and then follows the foregoing proter, for appellee. FELT, P. J. The appellant is the owner of lot 1, in the town of North Manchester, which was assessed for street improvements in the sum of $1,535. Being aggrieved on account of the assessment, appellant petitioned the judge of Wabash circuit court to appoint three disinterested freeholders to reassess the benefits to said lot. On February 15, 1909, the court appointed such appraisers, who duly qualified, and on April 19, 1909, filed their verified report, showing that they were unable to agree upon the benefits to the property, and thereupon the court discharged them. On the 1st day of May, 1909, appellant, in writing, requested the court to grant a trial in said court, without a jury, to ascertain the benefits to said real estate, which request was denied by the court, and thereafter appellant filed her written motion for the appointment of new appraisers, which motion was overruled by the court. Appellant excepted to the action of the court in refusing to try the case or to appoint new appraisers, and, from the judgment against her for costs, prayed, and was granted, an appeal to this court. The errors assigned question the action of the court in overruling the motion and request for trial, and in overruling the petition for the appointment of new appraisers. [1] The proceedings for the improvement of the street were maintained under section 111 of the act of 1905, c. 129, being section 8716, Burns' Statutes, 1908. During the pendency of the proceedings, the section was amended by the act of March 8, 1909 (Acts 1909, pp. 412-423), to which an emergency clause was attached. The amending act contains no saving clause as to pending assessments or litigation, and therefore took away all power to proceed further under the provisions so repealed. Taylor v. Strayer, 167 Ind. 23-28, 78 N. E. 236, 119 Am. St. Rep. 469; Zintsmaster v. Aiken, 173 Ind. 269, 88 N. E. 509, 90 N. E. 82. vision for reviewing the assessment (formerly by appraisers), after the amendment, by trial in the circuit court. It is clear that the court did not err in refusing to appoint new appraisers, for when the request was made there was no law in force authorizing such appointment. [3] Statutory proceedings for the improvement of streets and for the assessment of the cost thereof are special in character, and no right of appeal can be asserted thereunder, except that expressly provided by the special statute itself. The application for a reassessment of benefit was not an appeal to the circuit court, and the court acquired no jurisdiction by reason thereof, and could exercise no judicial power in the proceedings, but acted only in a ministerial capacity (except as to costs), from which no right of appeal to this court arises. The circuit court having no jurisdiction to exercise judicial power, there could be no further remedy under either the old or amended statute, as is the case in some instances where jurisdiction exists, and the amendment to the statute only modifies the proceedings, and provides a substantially similar remedy. Mayne v. Board, etc., 123 Ind. 132, 24 N. E. 80; Pittsburg, etc., R. Co. v. Oglesby, 165 Ind. 542, 76 N. E. 165. [4] It has been decided that there is no appeal under this provision of the statute, and that the action of the appraisers is final and conclusive, and the court has no judicial power in such proceeding. City of Huntington v. Brown, 95 N. E. 232; City of Indianapolis et al. v. State ex rel. Barnet, 172 Ind. 472, 88 N. E. 687; Randolph v. City of Indianapolis et al., 172 Ind. 510, 88 N. E. 949; City of Seymour v. Jordan et al., 173 Ind. 717, 89 N. E. 367; City of Crawfordsville v. Brown, 45 Ind. App. 592, 91 N. E. 252. When the amending act of 1909 took effect, no proceeding was pending before the circuit court for the reassessment of benefits to appellant's lot. Furthermore, this court has no jurisdiction of the subject-matter, and [2] The section before amendment provided | no appeal is authorized. for the appointment of appraisers by the On the authority of the cases last above court, when petitioned to do so, to assess the cited, this appeal is dismissed. GUBBINS ▼. HARRINGTON. (No. 7,134.) (Appellate Court of Indiana, Division No. 1. Oct. 13, 1911.) 1. MUNICIPAL COrporations (§ 586*)-STREET ASSESSMENTS-WAIVER OF ERRORS-EFFECT. An agreement executed by a landowner, pursuant to statute, in consideration of the privilege of paying assessments for street improvements in installments, that he will make no objection "to any illegality or irregularity with regard to the assessment," made him personally responsible for a deficit in the cost of the improvement only after applying the proceeds of the sale of the lot on the foreclosure of the lien. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 586.*] the complaint a plea in abatement was filed, and a demurrer thereto was overruled. Appellant refusing to plead further, judgment abating the suit was rendered in favor of appellee, and against appellant, for costs. The improvement was made, the assessment perfected, waiver filed, and improvement bond issued and delivered to the contractor, pursuant to an act of the General Assembly, approved March 6, 1905 (Acts 1905, p. 219). The first installment of the assessment was due and payable June 1, 1908, and this suit was commenced July 22, 1908. It is admitted that 15 days personal written notice was not given the delinquent be2. MUNICIPAL CORPORATIONS (8 586*)-STREET fore commencing this suit, as provided by ASSESSMENTS-PERSONAL LIABILITY-CONDI- an act of the General Assembly, approved TIONS PRECEDENT-FORECLOSURE OF LIEN. Since a landowner, who executes the statutory agreement waiving irregularities in street assessments for the privilege of paying assessments in installments, is only personally liable for any deficit after sale of the lot on foreclosure of the lien, a suit for personal judgment abates upon failure to comply with the conditions precedent to suing to foreclose the lien, such as giving the landowner of 15 days notice of delinquency, as required by Acts 1907, c. 257, 3. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 586.*] 3. MUNICIPAL CORPORATIONS (§ 519*)-STREET [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 519.*] March 12, 1907 (Acts 1907, p. 550). This act amends sections 110, 115, and 116 of the act of 1905, supra. The only question now presented is, Does the amended act (section 3) control the manner of procedure for the collection of the delinquent installment by the bond owner, or shall he proceed under the act as originally passed? [1, 2] Appellant contends that, if the plea of appellee should be held good as against his right to foreclose his lien, it is not sufficient to abate his right to a personal judgment. The waiver executed by appellee cut off his right to make a defense for anything appearing or omitted in the proceedings affecting the legality of the assessment (Dunkirk Land Co. v. Zehner, 35 Ind. App. 694, 74 N. E. 1099), and made him "responsible for any deficit of such cost, and interest, after the sale of the lot on foreclosure of the lien." Wayne County Sav 4. MUNICIPAL CORPORATIONS (§ 561*) - PUB-ings Bank v. Gas City Land Co., 156 Ind. 662, LIC IMPROVEMENTS. 59 N. E. 1048. From the case last cited, it will be seen that appellee's personal responsibility extends only to make good any deficit after applying the proceeds arising from a foreclosure sale of the lot. Therefore, if appellant must first subject the lot assessed to the payment of his demand, before subjecting Acts 1905, c. 129, § 116, prohibits a suit to foreclose the lien, upon a landowner's default in paying installments due for street improvements, until the landowner is served with 10 days notice of delinquency. Acts 1907, c. 257, §3, amending the former act is substantially the same, except it gives him 15 days notice of delinquency. Held, that the amendment did not substantially affect a contractor's any of the other property of appellee to sale mode of enforcing his lien for street assessments, upon default in paying installments, given by the amended statute, so that it was valid. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 561.*] Appeal from Circuit Court, Jay County; J. F. La Follette, Judge. Action by John Gubbins against Catherine Harrington. From a judgment overruling a demurrer to a plea in abatement, and sustaining the plea, plaintiff appeals. Affirmed. for that purpose, it must necessarily follow that, unless appellant has complied with the conditions precedent to bringing his suit to foreclose his lien, the suit not only for such foreclosure must abate, but likewise any suit for personal judgment. [3] For the assessed cost of a street improvement, the contractor has a lien on the real estate abutting the improved portion of the street. This lien is given by statute, and is a remedy which the Legislature may modify at any time before rights have become vested, or when such change does not impair a contract right, or substantially deprive a party of adequate means of enforcing his right. Davis v. Rupe, 114 Ind. 588, 17 N. MYERS, J. Appellant brought this suit E. 163, and cases cited; Shirk v. Thomas, against appellee to foreclose a street assess- 121 Ind. 147, 22 N. E. 976, 16 Am. St. Rep. ment lien, and for personal judgment. To 381; State ex rel. v. Helms, 136 Ind. 122, E. R. Templer and Van L. Ogle, for appellant. George T. Whitaker, for appellee. 35 N. E. 893. As applicable to the case before us, there has been no legislative change which seriously or even substantially affects the mode of enforcing the right given appellant under the old statute. 4. APPEAL AND ERROR (§ 648*)- RECORD REMEDY FOR INCOMPLETE TRANSCRIPT. record. 5. APPEAL AND ERROR ($ 731*)-ASSIGNMENTS -QUESTIONS REVIEWABLE. is contrary to law raises only such errors ocAn assignment of error that the decision curring on the trial as have been carried into the verdict, and the court will not review the failure of the trial court to find enumerated facts. Where the transcript filed on appeal is incorrect or incomplete, the remedy is by certiorari, and a supplemental record brought by præcipe, filed in the trial court after the orig[4] Section 116 (Acts 1905, supra, as amend-inal transcript has been filed in the Appellate ed section 3, Acts 1907, supra) gave appellant Court, cannot be considered as a part of the a complete remedy for the collection of the [Ed. Note.-For other cases, see Appeal and assessment due him by a foreclosure of his Error, Cent. Dig. §§ 2803-2806; Dec. Dig. § lien. It provides that: "When any person 648.*1 shall default in the payment of any installment of principal or interest it shall be the duty of the treasurer to mail a notice of such delinquency to such person, who shall have thirty days from the date when same was payable to pay such installment with a fee to such treasurer of twenty-five cents for sending such notice: Provided, that no such suit shall lie or be filed unless and until the person owning the property covered by such lien or assessment, and who has availed himself of the privilege of paying the installments, is served with fifteen days' personal written notice of such delinquency." Appellant has not complied with the provision of the statute requiring 15 days notice to the owner of the property assessed. The demurrer to the plea in abatement was properly overruled. It appearing that since the submission of this cause in this court appellant has died, it is therefore ordered that the judgment in this case be affirmed as of the date of said submission. Judgment affirmed. BERKEY v. RENSBERGER et al. (Appellate Court of Indiana, Division No. 1. 1. APPEAL AND ERROR (§ 606*)-TRANSCRIPT REQUISITES. A transcript which shows on its first page a complete index of all pleadings, record entries, etc., and a reference by page to the index of the evidence found at the beginning thereof, substantially complies with court rule 3 (55 N. E. iv). [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2664; Dec. Dig. § 606.*] 2. APPEAL AND ERROR (8 756*)-BRIEF OF APPELLANT-REQUISITES. Where the brief of appellant contains enough to advise each of the judges of the Appellate Court of the questions presented for determination, and it appears that appellant has made a good-faith effort to comply with the rules, the brief sufficiently complies with the rules. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. § 756.*] 3. APPEAL AND ERROR (8_907*) - NUNC PRO TUNC ENTRY-REVIEW-EVIDENCE. In the absence of a bill of exceptions containing the evidence on which a nunc pro tunc entry was entered, the court on appeal will presume that the ruling of the trial court was cor [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.*] 6. TRIAL (§ 397*)- FINDINGS - FAILURE TO FIND FACTS. The failure to find a material fact is, in effect, a finding as to such fact against the party having the burden of proving it. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 940-945; Dec. Dig. § 397.*] 7. CANCELLATION OF INSTRUMENTS (§ 46*)NOTE-INSANITY OF MAKER-EVIDENCE-ADMISSIBILITY. In a suit by the guardian of an insane person to cancel a note executed by such person, the decree adjudging the person insane and appointing the guardian, rendered subsequent to the execution of the note, is properly excluded, when offered in evidence by the guardian as a separate, independent item. [Ed. Note.-For other cases, see Cancellation of Instruments, Dec. Dig. § 46.*] 8. APPEAL AND ERROR ($ 1010*)-FINDINGSREVIEW. The court on appeal, though required by dence, will presume that the decision of the trial Burns' Ann. St. 1908, § 698, to weigh the evi court is correct, and the party complaining of the findings must show that the findings are not sustained by the evidence, or are clearly against the weight thereof. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*] 9. CANCELLATION OF INSTRUMENTS (§ 53*)— FINDINGS-INSANITY. A finding that a note was executed for a valid consideration, and that the maker was not at the time of its execution insane, and that the note was not obtained by fraud or undue influence, and that the holder thereof was a bona fide holder for a valid consideration and without notice, justifies a judgment refusing to cancel the note, as prayed for by the guardian of the maker, adjudged insane subsequent to the execution of the note. [Ed. Note.-For other cases, see Cancellation of Instruments, Dec. Dig. § 53.*] Appeal from Circuit Court, Elkhart County. Action by Valentine Berkey, guardian of Fannie Rensberger, against John Rensberger and others. From a judgment for defendants, plaintiff appeals. Aflirmed. E. A. Dausman, for appellant. C. W. Miller, J. S. Drake, S. C. Hubbell, Geo. R. Harper, and Wm. H. Charnley, for appellees. |