Land Co. v. Jones, 24 Ind. App. 451, 56 N. E. 46; Railroad Co. v. Jeffery, 26 Ind. App. 143, 59 N. E. 330.

All other questions that are presented by the record arise under the motion for a new trial.

The first and second reasons for a new trial are that the verdict is contrary to the law and evidence. Before the court will consider questions which are determinable alone from the evidence, the record must affirmatively show that the evidence given upon the trial is all brought up in the record. The record in this case affirmatively shows that much of the evidence given below is omitted from the transcript of the evidence. The record shows that the appellee offered, and, over appellant's objections, read in evidence, a number of different entries from the records of the common council of appellant city. To illustrate the state of the record as to all such evidence, we quote from the transcript: "Said page 28 of the record No. 11 of the common council was thereupon admitted in evidence and read to the jury on behalf of plaintiff from page 28 to page 34, inclusive, being marked by the reporter 'Plaintiff's Exhibit C,' and the same is made a part of the testimony in this cause." There are six of these entries, but the evidence referred to does not appear in the record. No effort has been made to bring it into the record. As this evidence is not in the bill, it is thus shown upon its face that there was evidence given which it does not contain. It has uniformly been held that, although the bill states that it contains all the evidence, if it shows upon its face that it does not, the court will not consider any question which depends for its proper decision upon the evidence. Jean v. State, 25 Ind. App. 339, 58 N. E. 209, and cases there cited.

Appellant assigned as its fourth reason for a new trial the overruling of its motion to instruct the jury to return a verdict in its favor. If for no other reason, appellant has waived its right to have the ruling on such motion considered by introducing evidence in its own behalf after the court's ruling thereon. Rhodius v. Johnson, 24 Ind. App. 401, 56 N. E. 942; Elliott, App. Proc. § 687; Geary v. Bangs (Ill.) 27 N. E. 462; Railroad Co. v. Cummings, 106 U. S. 700, 27 L. Ed. 266.

Appellant's fifth reason for a new trial is as follows: "That the court erred in giving of its own motion instructions numbered 7 and 8 to the jury." At the close of each of these instructions we find the following words: "Given and excepted to at the time. Edward W. Felt, Judge. February 23, 1891." As all these instructions were given on the court's own motion, and as the record fails to disclose which party took or reserved exceptions, the question attempted to be thus raised will not be considered. This precise question was decided adversely to appellant's contention in Railroad Co. v. Bundy, 152 Ind. 590, 53 N. E. 175. But there is another reason why the

assignment of error under this head is not available. The assignment questioning the correctness of the instruction is joint, and, unless both are bad, the error, if any, is not available. Lautman v. Pepin, 26 Ind. App. 427, 59 N. E. 1073; Pape v. Hartwig, 23 Ind. App. 333, 55 N. E. 271; Thomas v. Felt, 21 Ind. App. 265, 52 N. E. 171; Crawford v. State, 155 Ind. 692, 57 N. E. 931; Railroad Co. v. Cregor, 150 Ind. 629, 50 N. E. 760.

The eight instruction is as follows: "If you find from the evidence that Dr. Black, as such secretary, did not deem it necessary, in order to protect the public health, to have said smallpox patient so nursed and cared for, and that neither Dr. Black, nor any one authorized to bind the city in such contract for a nurse, employed the plaintiff for that purpose, then, in that event, you shall find for the defendant." This instruction not only states the law correctly, but is exceedingly favorable to appellant.

The question of excessive damages can only arise in actions ex delicto, and a motion for a new trial on account of excessive damages in an action on contract presents no question. Smith v. Barber, 153 Ind. 322, 53 N. E. 1014; Marvin v. Sager, 145 Ind. 261, 44 N. E. 310; Ice Co. v. Richardson, 25 Ind. App. 263, 57 N. E. 265.

Judgment affirmed.

(30 Ind. App. 77)

MIDLAND RY. CO. v. TRISSAL et al. (Appellate Court of Indiana, Division No. 1. Nov. 25, 1902.)

APPEAL-RECORD-BILL OF EXCEPTIONS-REPORT OF MASTER COMMISSIONER -HARMLESS ERROR.

1. The words "here insert," in a bill of exceptions, do not make a motion to strike out part of a pleading a part of the bill, so as to allow of review of the ruling thereon, though the motion appears elsewhere in the transcript.

2. The findings of a master commissioner being sufficient to support the judgment thereon, any error in refusing to strike from the commissioner's report the conclusions of law is harmless.

3. Though the testimony taken before a master commissioner was not filed in court till after judgment on the report, containing simply a finding of facts, yet, a motion to require him to file a transcript of the evidence being then pending, and the transcript being afterwards filed, it will be considered part of the report, as regards the necessity of making it part of the record by bill of exceptions.

Appeal from circuit court, Madison county; John F. McClure, Judge.

Suit by one Wilcox against the Midland Railway Company and others. Francis M. Trissal became a party, filed a cross-bill, and had a judgment, from which the railway company appeals. Affirmed.

W. R. Crawford and W. C. Stover, for appellant. W. R. Fertig, for appellee.

¶ 1. See Exceptions, Bill of, vol. 21, Cent. Dig. § 30.

into the record by a bill of exceptions or order of court. The words "here insert," in the bill, do not make the motion a part of the bill, although the motion is set out in another place in the transcript. Eubank, Ind. App. Proc. § 26; Dudley v. Pigg, 149 Ind. 363, 48 N. E. 642; State v. Halter, 149 Ind. 292, 47 N. E. 665; Allen v. Hollingshead, 155 Ind. 178, 57 N. E. 917; Brown v. Langner, 25 Ind. App. 538, 58 N. E. 743.

Appellant's counsel have argued principally the insufficiency of the evidence to authorize the findings made by the master. Counsel for appellee contend that the evidence is not in the record. On October 3, 1899, the commissioner filed "his findings of facts and conclusions of law thereon." On the same day appellant filed objections and exceptions to the report. On November 7, 1899, appellant filed its motion to require the commissioner to "certify the transcript of the evidence taken in this cause." On the same day appellant filed its motion to strike from the report the conclusions of law. On the 2d day of January, 1900, the court overruled appellant's objections and exceptions to the report, and sustained appellee's motion for judgment on the findings and conclusions of law, and on the same day rendered judgment. On the 4th day of January, 1900, the court sustained the motion requiring the commissioner to file a transcript of the evidence, and ordered the commissioner to file the transcript at once, and overruled the motion to strike out the commissioner's conclusions of law. On January 5, 1900, the following entry was made: "Comes now Edward D. Reardon, the master commissioner before whom this cause was tried, and files the longhand manuscript of the evidence taken in this cause, which transcript is in the words and figures following, to wit." This is followed by what purports to be the evidence taken before the commissioner, which is certified to by the commissioner as the transcript of all the evidence taken before him. On the 26th day of January, 1900, appellant filed its motion for a new trial. On March 3, 1900, appellant filed its bill of exceptions, which contained the commissioner's report, appellant's exceptions and objections thereto, and appellant's motion to strike from the master's report the conclusions of law. On June 25, 1900, appellant's motion for a new trial was overruled. It appears that on June 11, 1894, the cause was referred generally to a master commissioner for trial, to which appellant excepted. In May, 1895, the case was stricken from the docket. In December, 1896, it was again referred to a commissioner, as above set out, and under this reference the case was heard. It appears that appellant was present by attorney when the order was made, and made no objection whatever. Preston v. Sanford's Adm'r, 21 Ind. 156; Lewis v. Godman, 129 Ind. 359, 27 N. E. 563; Hauser v. Roth, 37 Ind. 89; Smith v. Harris, 135 Ind. 621, 35 N. E. 984; 65 N.E.-35

Taylor v. Trustees, 7 Ind. App. 388, 34 N. E. 655. As the commissioner was appointed for the purpose of this case only, his powers were prescribed in the order appointing him. McNaught v. McAllister, 93 Ind. 114. The statute provides that master commissioners shall have the powers and discharge the duties heretofore performed by masters in chancery, so far as the same may be consistent with existing laws. Section 1486, Burns' Rev. St. 1901. Sections 565, 566, Burns' Rev. St. 1901, also make provision for referring a case to, and a trial by, a referee. The distinction as to modes of procedure must be kept in view between proceedings before a master commissioner and proceedings before referees. Stanton v. State, 82 Ind. 463. While the reference to the commissioner to hear evidence and report his findings was general (Reid v. State, 58 Ind. 406), which required the commissioner to make such a report as that judgment might be pronounced upon it, yet the finding of the commissioner did not conclude the court. In chancery cases the court must make the ultimate decision of all questions of law and of fact, and upon proper exceptions the court must review the evidence upon which the findings are based. Brennerman v. Jennings, 101 Ind. 253; McKinney v. Pierce, 5 Ind. 422. "The report

of the commissioner," said the court in Stanton v. State, supra, "is only advisory, and for the assistance of the court in coming to a conclusion; and when the evidence is reported, or required to be reported, it is not conclusive, and the court has the right to examine the facts, and look into the evidence, in order to make a correct finding, before rendering judgment thereon, and for that purpose exceptions to the report may be filed, pointing out any errors therein contained. It will be presumed correct until the contrary is shown." Upon the findings as reported by the commissioner, the judgment of the court is right. Conceding, without deciding, that the commissioner was not authorized to state conclusions of law, yet the court's refusal to strike out the conclusions of law on motion was not reversible error. As the finding is sufficient to support the judgment, the conclusions of law stated by the commissioner may be disregarded. The finding is complete without the conclusions of law. It is true the report of the testimony taken before the commissioner was not filed in court until after judgment had been rendered upon the commissioner's report containing simply a finding of the facts (Borchus v. Association, 97 Ind. 180), yet a motion had been made to require the commissioner to file a transcript of the evidence, and was pending at the time judgment was rendered, and, after judgment was rendered, this transcript was filed. So that, for the purpose of this case, the transcript of the evidence should be considered to be a part of the master's report.

The record contains a bill of exceptions

setting forth the master's findings of facts and the exceptions thereto. But no attempt was made to put into any bill of exceptions the evidence; and, as we have seen, the transcript of the evidence was a part of the commissioner's report. In King v. Marsh, 37 Ind. 389, the court said: "The only questions raised are as to the report of a master. The report is no part of the record, unless made so by bill of exceptions, which is not done; and we cannot, therefore, take any notice of the imperfections, it being used as mere evidence on which the court finds and renders its judgment." City of New Albany v. Iron Substructure Co., 141 Ind. 500, 40 N. E. 44; Stanton v. State, 82 Ind. 463. See Borchus v. Association, 97 Ind. 180; McNaught v. McAllister, 93 Ind. 114; Lee v. State, 88 Ind. 256; Hauser v. Roth, 37 Ind. 89; Board v. Huston, 12 Ind. 276. Judgment affirmed.

(30 Ind. App. 120)

STEPHENS, County Auditor, et al. v.
SMITH.

(Appellate Court of Indiana, Division No. 1. Nov. 25, 1902.)

TAXATION PERSONAL PROPERTY ASSESSMENT LOCATION - PRIMARY VALUATIONREMEDY -RESIDENCE NOTES AND MORTGAGES.

1. A complaint stating that plaintiff's property had been listed for taxation by the assessor of the township where he resided, and also by the assessor of another township, and that the county auditor would extend taxes on both lists unless restrained, was not demurrable because not showing that plaintiff had sought relief through the county board of review. as Acts 1891, p. 199, creating such board, and Burns' Rev. St. 1901, § 8532, defining the duties of the board, limit its duties to corrections, and not to the primary valuation of property.

2. The complaint stated a cause of action, the second assessment being void as without jurisdiction.

3. In an action to restrain the double taxation of plaintiff's property, through its being listed in two townships, evidence examined, and held to sustain a finding by the court that defendant's residence was in a certain one of the townships.

4. Notes and mortgages must be valued for taxation in the township where the owner resides; not being within Burns' Rev. St. 1897, $8421, providing that all "goods and chattels❞ situated in some township, town, or city, other than where the owner resides, shall be assessed where situated.

Appeal from superior court, Tippecanoe county; W. D. Wallace, Judge.

Action by William C. Smith against William H. Stephens, county auditor, and the town of Williamsport. From a judgment for plaintiff, defendants appeal. Affirmed.

Ele Stansbury and Billings & Stephens, for appellants. C. V. McAdams, for appellee.

HENLEY, J. This was an action commenced by appellee, William C. Smith, against William H. Stephens, county auditor of Warren county, Ind., and the town of Williams

port, located in Washington township, of that county, to declare void and cancel a certain assessment of personal property belonging to appellee, and for an injunction against said auditor to prevent him from placing said property upon the tax duplicate of said county for taxation in the town of Williamsport. The complaint was in one paragraph. Appellants separately demurred to the complaint, assigning as reasons (1) that the circuit court had no jurisdiction of the subject-matter; and (2) that the complaint does not state facts sufficient to constitute a cause of action. The complaint was held sufficient. Appellants filed a joint answer in two paragraphs. The first paragraph of answer, presenting special facts as an affirmative defense, was not attacked by demurrer. The second paragraph of answer was a general denial. The trial was by the court. The court rendered judg ment canceling the assessment complained of, and perpetually enjoining the county auditor from placing the assessment complained of upon the tax duplicate of the town of Williamsport of the said county. Appellants have assigned errors as follows: First, error in overruling the demurrer to the complaint; second, error in overruling the motion for a new trial; third, error in the court's conclusions of law upon the special findings of fact.

The complaint alleges: That appellee has been for 15 years last past, and now is, a bona fide resident of Liberty township, Warren county, Ind. That he is the owner of valuable real estate in five different townships of said county, and also in the town of Williamsport, in that county. That on April 1, 1899, "he was the owner of, and had in his possession and under his control, in said Liberty township, the following personal property" (here follows description of property assessed, aggregating $170,820). That it was his own individual and personal property. That no part thereof was owned by, or under the control, use, management, agency, or supervision of, any nonresident of the state of Indiana, or any minor, executor, or administrator, agent, trustee, receiver, or guardian, and that no part of the same was situated upon any lands of the United States, the state of Indiana, or the lands of any county, township, town, or city in the state of Indiana, or elsewhere. That said personal property was not kept in any township, town, or city, other than Liberty township, throughout the preceding year. That on such dates he did not, nor has he during the preceding year, hired or occupied any office or store or other establishment in the town of Williamsport, Ind., in said county, for use in connection with such property, or any part thereof. That on the day of May, 1899, Frank Trickey, the township assessor of Liberty township, Warren county, Ind., called upon the appellee, and demanded from him a list and assessment of his property. That appellee delivered to said Trickey a list of said property, made upon an assessment blank

prescribed by law, and the same, after being duly sworn to, was accepted by said Trickey, and by him returned to appellant, county auditor, as a part of the property subject to taxation in said Liberty township, and appellant county auditor has and holds such list in his office, and will place the same upon the tax duplicate of said Liberty township, and extend the taxes thereon when levied. That Charles W. Sentman was the assessor for Washington township. That Williamsport is in Washington township. That after the assessor of Liberty township had filed his return with the county auditor, and delivered the county auditor the appellee's assessment list so given, and after the assessor of Washington township had full knowledge thereof, and of its return, he, as such assessor, on June 2, 1899, notified appellee, in writing, that he intended to list his personal property and place it on the auditor's book. That on June 3, 1899, appellee, by his counsel, appeared before the said assessor, and gave his reasons why said assessment should not be made as proposed; the fact that appellee was an innabitant and resident of Liberty township on April 1, 1899, and continuously after and until June 3, 1899; that he had given to the assessor of Liberty township a full and complete list of the property which said assessor proposed to assess; that Sentman's authority to make such assessment had lapsed on May 31st. That notwithstanding such objections said assessor on June 3, 1899, filled out an assessment list for said town, and copied therein, verbatim, from appellee's list returned to the assessor of Liberty township, all the property returned therein, and assessed the same to appellee in said town in the sum of $170,820, and returned such list on said date to the appellant county auditor as a part of the property subject to taxation in the town of Williamsport for the year 1899. That said appellant county auditor now has such list, and is threatening to and will place the same upon the tax duplicate of said town for 1899 against this appellee, and, unless restrained and enjoined from so doing, he will charge against such assessments the taxes levied on the taxable property of said town. That it is the same property returned by appellee to the assessor of Liberty township, and none other. That appellee is informed, if the property is assessed for taxation in said town, the taxes would amount to $5,000. That it would become a lien upon all of his real estate in the county, and cast a cloud upon his title, which would be unjust and injurious thereto, and should not be suffered or allowed, and that he has no other remedy. That such assessment is wrongful, illegal, and void for the reasons herein stated, and he asks that the same be set aside and canceled, and that appellant be enjoined from extending the same on the tax duplicate against him in said town; that a restraining order be issued. That no taxes can now be paid on said property, but

appellee is ready, able, and willing to pay when due. By leave of court, appellee amended his complaint, and made the town of Williamsport a party, and by the further averment that since filing complaint the authorities had fixed the levy for taxation in Liberty township at $1.33, and in said town at $3.02, on each $100 of taxable property; that the auditor of Warren county was directed by the board of trustees of said town to extend the same against the assessment complained of, unless restrained, etc.

Appellant contends that the complaint is insufficient because it fails to allege that appellee had sought relief through the county board of review; that no excuse appears why such relief was not asked, and, if asked, that it was refused. It is true that the county board of review is a tribunal which possesses quasi judicial powers, and to it, by law, is given exclusive original jurisdiction over the subject-matter of correcting and revising tax assessments. If it once obtains jurisdiction over the person whose assessment is in controversy, its action in the matter, whether right or wrong, is binding, until set aside or vacated by some direct attack. Senour v. Matchett, 140 Ind. 636, 40. N. E. 122; Jones v. Gas Co., 135 Ind. 595, 35 N. E. 390; Biggs v. Board, 7 Ind. App. 142, 34 N. E. 500. In the case last cited the court said: "The act of 1891 (Acts 1891, p. 199), following the constitution, is pervaded by the spirit of fairness and equality in the assessment of all kinds of property. A county board of review and the state board of tax commissioners are created and clothed with quasi judicial power, and specially charged with the duty of bringing about uniformity and equality of taxation. The action of these boards is judicial in its character, and their judgments are not open to collateral attack. If errors or irregularities are committed, they, must be corrected by the mode pointed out by statute. If not so corrected, they are conclusive as to whether errors may have been committed in the assessment. Courts have no power to control their discretion, or to take upon themselves the functions of a revising and equalizing board." And in Jones v. Gas Co., supra, the court said: "It has been the policy of the state to make the assessment and collection of taxes summary, and to hold now that a mere mistake or error of judgment in the officers charged with the duty of assessing and collecting taxes renders the tax void, and subjects the officers to injunction proceedings, is to reverse the long-settled policy." It is equally true that the tax laws of the state do not contem plate that the primary right to levy a tax upon a citizen shall be determined by, or be submitted to, a board of review. The duty of the board of review goes to the extent and valuation of the property of a citizen for taxation when the right to levy the tax has been determined, or where the right is unquestion