The Michigan Mutual Life Insurance Company . Custer.

undertaking to pay in the future for a risk to commence in præsenti, that his life is insured if he lives, but if he dies he is not insured."

The appellant cites the cases of Wall v. Home Ins. Co., 36 N. Y. 157, and Ferebee v. N. C. Mut., etc., Ins. Co., 68 N. C. 11. The case of Wall v. Home Ins. Co., supra, is substantially overruled by the later cases in that State, and is expressly disapproved in the well-considered case of Phenix Ins. Co. v. Tomlinson, 125 Ind. 84. See, also, Sweetser v. Odd Fellows, etc., Ass'n, supra.

We are satisfied that the weight of authority is against the doctrine of these cases.

In our opinion the court did not err in overruling the demurrer to the third paragraph of complaint.

It is claimed that the court erred in overruling the appellant's motion for judgment in its favor on the special verdict.

The principal point made under this assignment is that the finding in reference to the extension of time for payment of the note does not correspond with the allegations of the complaint.

The allegation is, in substance, that the insured was to have until the 2d day of June, 1885, to pay the note. The finding is that he was to have until he could realize, during the next tile season, money from the sale of tile for the year 1885, with which to pay the note, and that the season for selling tile extended from about the 1st of March to the middle of June. It is also found that the insured died on the 9th day of May, 1885, and that the first demand for the payment of the note was on the 27th day of May, written and addressed to the insured after his death.

The variance, if such it was, between the allegations in the pleading and the proof was not material. Section 391, R. S. 1881. Looking to all parts of the verdict and construing it as a whole, we think it appears that the extension

The Michigan Mutual Life Insurance Company v. Custer.

included, at least, the 27th day of May, when the demand was made, which was after the death of the insured.

Some objection is made to the finding upon the subject of the proof made of the death of the assured. While the finding is not very full and explicit upon this point, we find, upon examination, that the finding is almost in the exact words of the policy, requiring proof. And upon looking into the evidence to see if the merits of the cause have been fairly tried and determined, we find that the company, at the trial of the cause, admitted that notice of the death was given to the company in due time and in due form.

We have read the evidence and find that there is evidence tending to sustain the verdict of the jury upon every material finding, and, under the well established rule of this court, we can not interfere with their verdict.

The court did not err in permitting the appellee to read in evidence the letter dated May 27, written by the company to the insured, and demanding payment of the note. Such evidence was competent to be considered by the jury as bearing upon the question of the alleged extension of the time for the payment of the note. Neither do we think the court erred in receiving testimony in reference to the duration of the tile season in Montgomery county. The arrangement made between Custer and the agents of the company was made with reference to this tile season. It was not necessary that the contract for extension should be to a precise date.

Judgment affirmed.

Filed April 7, 1891.

VOL. 128.-3

The Evansville and Richmond Railroad Company v. Swift.

No. 15,246.

THE EVANSVILLE AND RICHMOND RAILROAD COMPANY . SWIFT.

RAILROAD.-Appropriation of Land for Right of Way.-Measure of Damages.--Evidence.--In a proceeding by a railroad company to appropriate land for its right of way, it is proper to prove the value of the land without the road across it, and its value when divided by the road into parcels, and it is proper for the jury to consider such evidence in assessing the damages. SAME.-Appropriation Proceedings.-Jurisdiction.-The principal object of proceedings to appropriate land for the right of way of a railroad is to appropriate and acquire a title to the land, and the assessment of damages is a mere incident to and arises out of the act of appropriation; and the Supreme Court has jurisdiction on appeal.

PRACTICE. Objection to Evidence.-- Where part of the answer of a witness is competent, though part is incompetent, it is not error to overrule a motion to strike out such answer.

From the Jackson Circuit Court.

M. F. Dunn and G. G. Dunn, for appellant.
W. K. Marshall, for appellee.

OLDS, C. J.-The appellant filed its instrument of appropriation with the clerk of the Jackson Circuit Court, and sought to condemn and appropriate, for its use, certain lands of the appellee. Appraisers were duly appointed to assess such damages as the appellee would sustain by reason of such appropriation. The appraisers made their award, and filed the same with the clerk of said court. The appellee, at the proper time, filed his exceptions, claiming the amount awarded to him was insufficient. The cause was tried by the court, without the intervention of a jury, who assessed the appellee's damages at $640. The appraisers assessed his damages at $200.

The appellant filed a motion for a new trial, which was overruled by the court, and exceptions reserved.

Judgment for appellee for $640, from which this appeal is prosecuted.

The Evansville and Richmond Railroad Company v. Swift.

The alleged errors complained of and discussed relate to the rulings of the court on the introduction of evidence.

Charles Leminger, a witness for appellee, was asked to state how much the Swift land was worth per acre before the road ran through it." The appellant, at the time, objected, for the reason that it was not the proper way to prove the market value of the land, no proper basis having been laid, and as calling for a mere opinion." The court overruled the objection, and the appellant excepted.

The witness answered that "it was worth two hundred and fifty dollars per acre before the road was made, and now the little piece is worthless and the large piece is worth two hundred dollars per acre."

As we interpret the objection stated to the question, if it presents any objection which can be considered, it is that the question was not competent, for the reason that it is incompetent to prove the value of the land before the road ran through it, for the purpose of determining the amount of damage, and for the further reason that it called for a mere opinion of the witness. The statement that "no proper basis having been laid" can have no definite application, unless it is intended as an objection on account of the witness not having shown any qualification to speak as to its value, and we do not think it can be interpreted as an objection on that ground. If it can be so interpreted, it is not well taken, as the witness had shown some knowledge of the value of lands in the vicinity and an acquaintance with the particular land in question. The phase of the objection relating to its not being a proper method of proving damages has been settled by this court adversely to the theory of the appellant, as it has been held that it is proper to prove by competent witnesses the value of the land without the road across it, and the value with it divided by the road into parcels, and that it is proper for the jury to consider such evidence in assessing the damages. Indianapolis,

The Evansville and Richmond Railroad Company v. Swift.

etc., R. R. Co. v. Pugh, 85 Ind. 279; Indiana, etc., R. W. Co. v. Allen, 100 Ind. 409.

The same question is presented as to the ruling of the court on objections to questions propounded to several witnesses. The witness, Mitchell, stated, in answer to a question, that "the little piece of land is worthless now," and added: “I will not give twenty-five dollars per acre for it; the large piece is worth $200 per acre." The appellant moved to strike out the answer. Some part of the answer was competent, and it was not error to overrule the motion as made. We have examined all the questions presented. They are similar to those already stated.

There is no error in the record for which the judgment should be reversed.

The appeal in this case presents a question of jurisdiction,as to whether or not, under the Appellate Court Act, approved February 28, 1891, this court or the Appellate Court has jurisdiction on appeal of this class of cases.

The proceedings in this case were instituted for the purpose of condemning and appraising the lands of the appellee to the uses and purposes of the appellant, of the appellant, a railroad company, and the damages are assessable as a mere incident, and arise out of the act of taking the land by the company. Before the passage of the act referred to, by the Constitution and laws of the State the Supreme Court had exclusive jurisdiction in all cases in which an appeal would lie from the circuit court. The Appellate Court is a creature of the statute under the Constitution, and derives such jurisdiction only as is given to it by the act creating it. By that act jurisdiction is taken from this court in certain classes of cases and given to the Appellate Court. The act does not take or attempt to take from the Supreme Court, or to confer on the Appellate Court, jurisdiction in any cases relating to real estate, except in "actions between landlord and tenant for the recovery of the possession of the leased premises," and by this provision of the act it can not be contended that jurisdiction