Woods v. The Board of Commissioners of Tipton County.

From one stand-point, the appellant's condition appeals strongly to the sympathies. A vigorous man, in robust health, he was by this occurreuce broken in constitution and made a life-long sufferer. If the facts were such as to make the county liable we would not have set aside a verdict. awarding him most liberal damages. But the evidence, showing as it does, that his injuries are the result of his own voluntary surrender of his ability to see and guard against danger, he has no claim on the county for compensation, whether the county authorities had or had not fully acquitted themselves of the duty they owed the public.

Of the errors assigned and argued, we will only say that appellant complains of three questions which the court, over his objections, allowed a witness to answer. The questions and answers were competent, and the court did not err.

We think the court did err in certain instructions given, which is the only other error argued, and possibly in some refused, but from the facts clearly shown to exist in this case, the plaintiff can not recover, and the verdict is right. The ends of justice would not be subserved by requiring a re-trial of the issues.

Section 658, R. S. 1881, contains the following: "Nor shall any judgment be stayed or reversed, in whole or in part, when it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below," and this court has many times decided that where the record affirmatively shows that the verdict is right upon the evidence the judgment will not be reversed because the court has erred in the instructions given to the jury. Stockwell v. Brant, 97 Ind. 474; Simmon v. Larkin, 82 Ind. 385; Norris v. Casel, 90 Ind. 143; State, ex rel., v. Ruhlman, 111 Ind. 17; Cassady v. Magher, 85 Ind. 228; Ledford v. Ledford 95 Ind. 283; Sanders v. Weelburg, 107 Ind. 266. Judgment affirmed, with costs.

Filed May 16, 1891.

Shattuck v. Cox.

No. 14,016.

SHATTUCK v. Cox.

SUBROGATION.-Volunteer.-Note Given by Third Person in Payment of Judgment.—Subrogated to Lien of Judgment.--Judgment Over.—The owner of land gave a mortgage upon it, which was foreclosed, and the land bought in at sheriff's sale by the mortgagee for one-half the amount of the debt. The plaintiff, after the sale, filed a transcript of the judgment in an adjoining county. One C., by agreement all around, then executed his note, for four-fifths of the debt to the mortgagee, and the mortgagor agreed with C. to pay the remainder due on the foreclosure, and he had so paid him. By agreement C. took an assignment of the sheriff's certificate as a security for the liability he incurred in giving the note to the mortgagee. C. was compelled to pay the note he had given. Held, that C. was entitled to be subrogated to the lien of the judgment upon the land in the county where it was rendered, and was also entitled to a judgment for the sum in excess of the value of the land.

From the Clay Circuit Court.

N. G. Buff, for appellant.

G. A. Knight, J. G. Williams and J. T. Scott, for appellee.

ELLIOTT, J.-The facts stated in the appellee's complaint are, in substance, these: On the 19th day of April, 1872, the appellant was indebted to John Collier in the sum of twenty-five hundred dollars, and to secure the payment of the debt executed a mortgage on land in Sullivan county. In October, 1873, Collier instituted a suit to foreclose the mortgage, and on the 21st day of January, 1874, obtained a judgment for $2,210.75, and a decree of foreclosure. On the 29th day of August, of that year, Collier bought the land at the sale made by the sheriff upon the decree, and received a certificate. He bid for the land $1,250. On the 25th day of April, 1875, he filed a transcript of the judgment in the clerk's office of Vigo county. Appellant desired to redeem the Sullivan county land, and he proposed to Cox, the appellee, that he should execute his promissory note for $2,000, and thus effect the redemption, and he

Shattuck v. Cox.

also agreed to secure the money to pay the remainder due upon the Collier judgment. To indemnify the appellee against loss on the $2,000 note it was agreed that he should obtain from Collier an assignment of the sheriff's certificate. Five days prior to the expiration of the year for redemption, the appellee executed to Collier his note for $2,000, and the appellant paid to Collier the sum of five hundred dollars. Pursuant to the agreement of all the parties, Collier assigned the certificate to Cox, and also assigned the judgment. Appellee was compelled to pay, and did pay, the note to Collier. Of the sum paid by the appellee the appellant repaid to him $129, leaving the remainder entirely unpaid. The complaint asks that the lien of the judgment upon the Sullivan county land be enforced and that the plaintiff be awarded judgment for the sum in excess of the value of that land.

The complaint is unquestionably good. The appellee paid the money at the request of the appellant and to save his property, so that there is privity of contract. As the appellee was not a volunteer he was entitled to be subrogated to all the rights of Collier under the judgment and certificate. Lowrey v. Byers, 80 Ind. 443. It would be iniquitous to permit the appellant to secure the benefit of the appellee's money and deny the appellee the right to the security which the creditor held. As the Sullivan county land was not of sufficient value to pay the debt due the appellee he was entitled to judgment for the remainder of his claim.

The complaint is good as to all the relief prayed, but if it were good only as to part it would repel a demurrer. Bayless v. Glenn, 72 Ind. 5.

The appellee's counsel stoutly contend-and their contention is supported by the record recitals-that it affirmatively appears that the evidence is not all in the record. As the evidence is not all in the record we can not consider

Board of Comm'rs of Fountain Co. v. Board of Comm'rs of Warren Co.

the question whether the finding of the trial court is or is not sufficiently supported.

No motion was made to modify the judgment, nor is there any specification of error challenging the sufficiency of the decree or the special finding.

Judgment affirmed.

COFFEY, J., did not take any part in the decision of this

case.

Filed May 16, 1891.

No. 15,248.

BOARD OF COMMISSIONERS OF FOUNTAIN COUNTY v. BOARD OF COMMISSIONERS OF WARREN COUNTY.

STATUTE.-Rules for Construing.—In the construction of a statute the court, in order to ascertain the intention of the Legislature, will look to the letter of such statute, to it as a whole, to the circumstances under which it was enacted, to the old law, if any, to the mischief to be remedied, to other statutes, to the rules of the common law, to the sources from which it was derived, to the general principles of equity, to its effect, and to the condition of affairs when it was enacted. BRIDGES.-Bridge Over Boundary Stream.--Cost of Construction, or Repairing.-Consent.-One county can not purchase nor construct a bridge over a stream forming the boundary line between it and an adjoining county, and compel such adjoining county to pay its proportionate part of the expense; nor can it compel such adjoining county to pay its proportionate part of the cost of repairing such a bridge. Such adjoining county, to be liable, must consent to such purchase, or erection, and mere silence, when the first county serves notice of its intention to purchase, or build, such a bridge, is not such a consent as will render such adjoining county liable to pay a proportionate share of the cost. SAME.

A County May Build a Bridge Over its Boundary Line.-A county may purchase, or build at its own expense, a bridge over a stream between it and an adjoining county; which bridge, when so purchased or built, will belong to the county buying, or building it.

From the Montgomery Circuit Court.

Board of Comm'rs of Fountain Co. v. Board of Comm'rs of Warren Co.

T. F. Davidson and H. H. Dochterman, for appellant.
C. V. McAdams, for appellee.

COFFEY, J.-This was an action by the appellant against the appellee to recover for money expended by the former in the purchase of a toll bridge across the Wabash river, to recover for money expended in the construction of a bridge, and for money expended in the repair of a bridge.

The complaint consists of three paragraphs.

The material facts alleged in the first paragraph of the complaint are, that the board of commissioners of Fountain county in the year 1886 purchased a certain described toll bridge across the Wabash river, near the city of Covington, part of which bridge, with its approaches, is in Fountain county and another part in Warren county. The bridge was purchased for the purpose of making it free to the public, and the price paid was $18,000, all which was paid by Fountain county. On the 11th day of June, 1886, the board of commissioners of Fountain county, when in regular session, found and entered of record that public utility and convenience required the purchase of said bridge and the approaches thereto from the then owners, and that the same should be made free and subject to the public use without the payment of toll, and at the same time entered of record a resolution expressing and declaring its willingness to aid and join the board of commissioners of Warren county in the purchase of said bridge and approaches, and ordered of record that a certified copy of the finding and resolution should be made out and delivered to and served on the board of commissioners of Warren county. A certified copy of these proceedings was served upon and delivered to the board of commissioners of Warren county on the 15th day of the same mouth. The board of commissioners of Warren county neglecting and refusing to join in the purchase of the bridge, Fountain county purchased it on the 21st day of July, 1886, and dedicated it to the public use.