the court, after hearing the evidence, awarded the custody of said child to the mother, Jessie R. Bullock. Said child was in the custody of the court, and was subject to its jurisdiction. The power of the court, under such circumstances, to award its custody to either parent or to a third party in said proceeding, as its welfare and best interests require, was full and complete, and did not depend on the technical sufficiency of the returns; nor was such power limited or controlled by the allegations thereof. It follows that in such a case as the one in hand, where custody is awarded by the court upon the evidence, such judgment will not be reversed upon rulings which merely go to the sufficiency of the return. The evidence is not before us, nor has any attempt been made to bring it into the record.

Judgment affirmed.

PEOPLE'S NAT. BANK ▼. STATE ex rel. EMMERSON, Assessor, et al.

(Supreme Court of Indiana. Oct. 29, 1902.)

APPEAL BRIEFS - APPELLEE'S FAILURE TO FILE-CONFESSION OF ERROR-REVERSAL. 1. Where defendant appealed, and filed its transcript, containing errors properly assigned, and its brief, in which such errors were fully discussed, and 200 days elapsed after the submission of the cause without any brief being filed by appellees, the alleged error will be taken as confessed, and the cause reversed without prejudice.

Appeal from superior court, Vanderburgh county; Geo. A. Cunningham, Special Judge. Mandamus by the state, on relation of Alexander Emmerson and another, against the People's National Bank, to compel an inspection of the bank's books for the purpose of taxation of depositors. From a judgment ordering a peremptory writ, respondent appeals. Reversed.

J. H. Miller and J. E. McCullough, for appellant.

DOWLING, C. J. This is a proceeding by the appellees, who were, respectively, the assessor and the auditor of Gibson county, for a writ of mandamus to compel the appellant to grant to them an inspection of its books showing the names of its depositors, and the amounts to their credit on April 1, 1899. The action was brought in the Gibson circuit court in September, 1899, and a change of venue was taken to the superior court of Vanderburgh county. An alternative writ was issued, to which the appellant made its return in nine paragraphs; the first being a general denial, and the others setting up special matters of defense. Demurrers to all of the special answers were sustained. The cause was tried upon the issue made by the general denial, and judgment directing the issuing of a peremptory writ of mandate was

rendered. The defendant below appealed, and filed its transcript in this court on the 6th day of March, 1902. Nine errors were properly assigned. On June 2, 1902, printed briefs for the appellant were filed, in which the supposed errors of the trial court were fully discussed. Two hundred days have elapsed since the submission of the cause, and, although the questions raised by the assignment of errors and presented by counsel for appellant in their briefs are important ones, no brief has been filed on behalf of appellees, and no attention has been given by them to this appeal. In view of the failure of the appellees to controvert any of the grounds upon which a reversal of the judgment is demanded, we feel justified in regarding their silence and neglect as a confession of error; and under the rules of this court as announced in Berkshire v. Caley, 157 Ind. 1, 60 N. E. 696, and Neu v. Town of Bourbon, 157 Ind. 476, 62 N. E. 7, without intending to express any opinion upon the questions of law presented in the record, we reverse the judgment at the cost of the appellees, but without prejudice to either party.

Cause remanded to Vanderburgh superior court for further proceedings.

COX v. PELTIER.

(Supreme Court of Indiana. Oct. 29, 1902.) ASSUMPSIT-UNDERTAKER'S BILL-SUFFICIEN

CY OF COMPLAINT-STATUTE OF FRAUDSTRIAL INSTRUCTING JURY-RECEPTION OF VERDICT-IRREGULARITIES-HARMLESS ER

ROR.

1. A complaint on an undertaker's bill, which alleges that a coffin was furnished and services rendered "at the special instauce and request" of the defendant, sufficiently charges an implied promise on defendant's part to pay the reasonable value thereof.

com

2. In an action on an undertaker's bill against the employer of decedent's husband, a plaint alleging that a coffin was furnished and services rendered at the special instance and request of the employer, without specifically alleging that credit was extended to him, is not objectionable as setting forth a case falling within the statute of frauds; as, where goods are furnished to a third person on the order of another, the person giving the order is regarded as the purchaser.

3. Burns Rev. St. 1901, § 550, provides that, if there is a disagreement between the jurors, after their retirement, as to any part of the testimony, or if they desire further instructions, they may request the officer to conduct them into court, where they shall receive the required information in the presence of, or after notice to, the parties or their attorneys. Section 553 gives to each party the right, on the return of a verdict, to poll the jury. Section 670 forbids the reversal by the supreme court of a judgment where it appears that the merits have been fairly tried and determined below. the trial of an action the judge of his own motion, and in the absence of the parties and their counsel, and without notice to them, recalled the jury, and admonished them as to necessity of promptly returning a verdict, and later, also in the absence of the parties and without notice, received the verdict. Held

On

2. See Frauds, Statute of, vol. 23, Cent. Dig. §§

35-37.

ed appellee to wait until he (appellant) received some money from a judgment which he expected to recover in an action which he had pending in court in Whitley county. On another occasion he promised to pay the bill as soon as he obtained the money owing to him upon a contract which he had for some work to be performed at Decatur, Ind. It was shown upon the trial that appellant was indebted to Tritchler, the husband, during the whole period he remained in his employ, which was for quite a period before the death of his wife, and, as previously stated, for about two years after her death. On a settlement between Tritchler and appellant at some time before the commencement of this suit the latter deducted out of the amount due from him to the former the full sum due to appellee for the casket, box, and the services in question, and also $2 for the carriage furnished at the funeral. This carriage, it appears, was ordered by appellee from a firm known as "Powers & Barnett," who were engaged in the livery or transfer business in the city of Ft. Wayne. Appellee usually collected the bill for carriages furnished by this firm at funerals as a part of the undertaker's charges, but he would do so, however, under an arrangement which he had to act for them as their agent in such matters. After the funeral of Mrs. Tritchler, it appears that appellee informed Powers & Barnett that appellant was to pay the bill for the carriage hired. Thereafter Mr. Barnett, of that firm, on several occasions presented the bill of $2 for the hire of the carriage to appellant, and each time the latter promised to pay it. At one time when Barnett presented the bill to appellant he told him if he did not pay it he would demand the bill of Tritchler. Thereupon appellant requested him not to do so, as he had already deducted the bill from Tritchler's wages. The amount for the carriage, it appears, forms no part of the claim upon which appellee recovered in this action. There is evidence to show that appellee charged the account for the casket and services rendered alone to appellant, as directed by the latter, and at no time did he present the bill to Tritchler, or in any manner look to him for the payment thereof.

Appellant complains of several rulings of the court in admitting and in refusing to exclude evidence and in giving and in refusing to give certain instructions. Upon an examination in respect to these questions we conclude that the court in its charge to the jury fully presented the theory of both parties in this action, and the instructions, when considered as a whole, may be said to have fully advised the jury in regard to the law applicable to the case under the issues and the evidence, and are as favorable to appellant as he has any right to demand. The rulings of the court of which appellant complains in relation to the admission and exclusion of evidence are not open to the objection urged,

and, if any of them could be said to be erroneous, they would not, for the reasons hereinafter stated, justify us in disturbing the judgment of the lower court. The alleged error upon which counsel for appellant state that they "particularly rely for a reversal" is based on facts as the same are exhibited by a special bill of exceptions. This bill appears to have been filed on December 24, 1900, but as to when it was presented to the trial judge, or by him signed, is left as a matter of conjecture; and this infirmity in the bill, together with others, is severely assailed and criticised by counsel for appellee. The jury trying the cause, it seems, was charged by the court and retired to deliberate upon a verdict about 10 o'clock in the forenoon of December 14, 1900. About 8 o'clock p. m. of the same day, and before the jurors had agreed upon a verdict, the judge, without any request from them to be further advised on any point or points of law involved in the case, ordered the bailiff to bring the jury into court, which was accordingly done, and thereupon, in the absence of both parties and their respective counsel, and without the consent of either party, and without any notice to or knowledge of either party or their counsel, he inquired of the jurors if they had agreed upon a verdict, and, on receiving an answer in the negative, he then addressed some remarks to the jurors, whereby he threatened or admonished them in regard to what he would do about keeping them together for a certain length of time unless they agreed upon a verdict. After being so lectured by the judge, the jury, at his direction, retired to their room for further deliberation, and in the course of an hour and thirty minutes they agreed upon a verdict, which fact was reported to the judge, and the latter directed that they be brought into court, which was accordingly done, and there, in the absence of both parties and their attorneys, and without notice being given to either party or his counsel, the court received the verdict of the jury. Following these statements in the bill of exceptions it is further stated therein that, "To the action and conduct of the court the defendant at the time excepted." The bill of exceptions then concludes as follows: "And now, as Soon as defendant was informed of said facts, for the purpose of presenting the question of law arising on the alleged misconduct of the court and of said bailiff, the defendant now tenders this, his bill of exceptions numbered one, and prays the same to be signed, sealed, and made a part of the record in this cause, which is done this day of December, 1900. John H. Aikin, Judge of the Superior Court of Allen County." It will be observed that the exact date when the bill was presented to or signed by the trial judge is not shown, and counsel for appellee contend that by reason of this fact the bill is not available for the purpose intended. The conflicting statements in the bill certainly

leave the question as to whether appellant was present in court in person or by counsel at the time the court addressed its remarks to the jury, and at the time the verdict was returned and received, somewhat confused or in doubt. It is not the duty of this court on appeal to settle conflicting statements in bills of exceptions. If the defendant was not present in person or by counsel at the time or times as stated in the bill, then it certainly cannot be true that he at the time excepted to the action and conduct of the court as therein declared. If the exception was taken by the defendant at the time stated, then it may certainly be presumed that the same was reserved by him in person or by some one authorized to appear in court at the time in his place and stead. Passing over, as we do, however, the several infirmities imputed to or urged by counsel for appellee against the bill of exceptions, and giving the action of the court in question consideration, we are constrained, under the circumstances, to say that the action or conduct of the trial court in addressing the jury and in receiving the verdict, as shown, in the absence of the parties and their counsel, and without their consent, and without any notice to them or their attorneys, and without any effort or attempt being made to apprise them of what the court was proposing to do (no excuse whatever being shown in the bill of exceptions for the court's taking such actions or steps in the absence of parties and their counsel), is justly open to criticism and complaint. Section 550, Burns' Rev. St. 1901, provides: "After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys." The provisions of this statute in regard to the presence of the parties, or notice to them or their counsel, is held not to be merely directory, but mandatory. Jones v. Johnson, 61 Ind. 257; Blacketer v. House, 67 Ind. 414. While, perhaps, the question, under the facts herein, does not bring the case within the strict or express letter of the above section, nevertheless it certainly falls within the spirit thereof. A trial court is not justified in threatening a jury, and thereby attempting to coerce them into an agreement, still the court may impress upon them the fact that by reaching an agreement in the particular case, if they consistently can, under the law and the evidence, they will subserve the interests of both the public and the respective litigants. Certainly the action of the court in receiving the verdict under the particular circumstances was, to say the least, an irregularity, not in harmony with the due administration of justice. The hour at which it was received was an unusual one,-being in

the nighttime; but if the court deemed it proper to receive the verdict during the night, then some arrangement ought to have been made with the parties or their counsel by which they might have been apprised of the agreement of the jury, and thereby have availed themselves of their right to be present in court at the time. By section 553, Burns' Rev. St. 1901, each party to an action is given the right on the return of a verdict to poll the jury. This statute evidently contemplates that the parties will be present in court in person or by counsel upon the return of a verdict, and avail themselves of this right. Not only may they exercise such a right on the return of a verdict, but it is their privilege to exercise any others to which they may be entitled. Rosser v. McColly, 9 Ind. 587. Of course, the right to be present at the return of a verdict is one which a party may voluntarily waive or abandon. While we are of the opinion, as previously said, that the action of the court in question is justly subject to criticism, and, if the judgment in consideration of the evidence before us was not clearly right, such conduct might afford grounds for a reversal, in this case the court's action in the matter will not warrant us in disturbing the judgment for the plain reason that there is competent evidence in the record from which it is clearly and satisfactorily shown that by the judgment below a correct or right result has been reached, and justice thereby has been fully subserved. In fact, we are unable to discover how the jury could have decided otherwise than they did, unless they had arbitrarily rejected the evidence given in behalf of appellee, and accepted alone that which appellant gave as a witness in his own favor. Where, as in this appeal, it clearly and satisfactorily appears that the merits of the case have been fairly tried and determined, and a right result reached, this court, under the rule recognized by section 670, Burns' Rev. St. 1901, must disregard intermediate errors occurring at the trial, and sustain the judgment. This rule has been repeatedly observed and enforced by the decisions of this court. See cases collected under section 670, Burns' Rev. St. 1901.

For the reasons stated, the judgment should be affirmed.

RE

DREW v. TOWN OF GENEVA, (Supreme Court of Indiana. Oct. 30, 1902.) TOWNS - SIDEWALKS - CONSTRUCTION COVERY FROM LOT OWNER - APPEAL — BILL OF EXCEPTIONS-CERTIFICATION. 1. Burns' Rev. St. 1901, §§ 4396, 4397, provide that, if the owner of town lots fails to build sidewalks as required by ordinance, the cost thereof when made by the town shall be a lien on the lot. Held that, though the contract between the town and the contractor making the improvement ought to be in writing, a complaint in an action to recover the cost, which fails to state that the contract was in

writing, does not, for that reason, fail to state a cause of action.

2. Under Burns' Rev. St. 1901, § 661, requiring the clerk to certify to the supreme court so much of the record as he is directed to by appellant, a clerk has no authority to certify the original bill of exceptions containing the evidence, where the præcipe directed him to certify a "transcript" of the bill of exceptions.

Appeal from circuit court, Jay county; J. M. Smith, Judge.

Action by the town of Geneva against William Drew. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank H. Snyder, for appellant. Headington & Whiteman, for appellee.

JORDAN, J. Appellee, an incorporated town situated in Adams county, Ind., commenced this action to recover of appellant, an abutting owner, the cost of paving a certain sidewalk in said town. The improvement in controversy was made in pursuance of sections 4394, 4396, Burns' Rev. St. 1901, and this action was instituted under section 4397 of the same statute. The venue was changed from the Adams to the Jay circuit court, wherein, on a trial before the court, appellee was awarded $35.90, and a decree foreclosing the statutory lien for that amount. The appeal from that judgment comes to this court by reason of appellant's contention that the evidence discloses that the ordinance under which the paving of the sidewalk was made and the proceedings thereunder are invalid. The errors assigned are: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling the motion for a new trial.

The infirmity imputed to the complaint is that it fails to aver that the contract between appellee and the party to whom the work of paving the sidewalk was let was in writing. The pleading does, however, disclose that the work was let as provided by the statute, and that appellee entered into a contract with the person therein named for the performance of said work. It is true that it is not expressly alleged that such contract was in writing. While section 4396, supra, does not, in express terms, provide that there shall be a written contract between the town and the contractor for the performance of such work, nevertheless the proper town authorities, in the orderly exercise of the powers invested in them in such proceedings as the one at bar, ought to require that the agreement of the person to whom the work is let should be reduced to writing. The contract, however, between the town and the contractor in proceedings like this is not the foundation of the action foreclosing the lien, and the failure of the complaint to aver that the contract therein mentioned was in writing is not an omission to state a fact essential to appellee's cause of action. An examination of the complaint discloses that it is substantially a copy of

one held to be sufficient in Powers v. Town of New Haven, 120 Ind. 185, 21 N. E. 1083. It also substantially follows the form of complaint given in Thornt. Mun. Law (3d Ed.) p. 485.

All the other questions discussed by counsel for appellant depend for their solution entirely upon the evidence. By a written præcipe which is appended to the transcript in this appeal, and which was made under and in pursuance of the provisions of section 661, Burns' Rev. St. 1901, appellant, by his counsel, directed the clerk of the lower court to "prepare and certify a full, true, and complete transcript of the following proceedings, papers on file, judgment, and decree, to wit." Here follows an enumeration or mention of the papers, documents, and entries in the cause which the clerk is directed to transcribe and certify, such transcript to be used, as stated, on appeal to the supreme court. Among the documents mentioned in the præcipe which the clerk was directed to transcribe for the purpose of the appeal is the following, "The bill of exceptions." It appears, however, that the clerk has not complied with the written directions of appellant. At least he has not so far as the same required him to certify a transcript of the original bill of exceptions embracing the evidence, which appears to be the only bill filed in the case. Instead of certifying a transcript thereof as directed, the clerk has bodily certified to this court the original bill itself; hence, under the circumstances, when ruled by the decisions in Johnson v. Johnson, 156 Ind. 592, 60 N. E. 451, and Chestnut v. Railroad Co., 157 Ind. 509, 62 N. E. 32, we are compelled to hold that the act of the clerk in certifying such original bill was unauthorized, and consequently the evidence is not a part of the record. In the appeal of Chestnut v. Railroad Co., supra, we said: "Under the directions given to the clerk in the præcipe in question it became his duty to certify to this court a transcript or copy of the original bill of exceptions containing the evidence and the rulings of the court in the admission or exclusion of testimony, and his act in certifying the original bill was, under the statute, unauthorized." The evidence not being properly before us, we must, without consideration of the merits, dismiss the several questions depending for determination upon the evidence. Judgment affirmed.

BOARD OF COM'RS OF MIAMI COUNTY v. FALK. (Appellate Court of Indiana, Division No. 1. Oct. 30, 1902.)

SCHOOLS-POOR CHILDREN-BOOKS AND SUPPLIES-SCHOOL TRUSTEES-AUTHORITY. 1. Acts 1899, p. 550, § 6, providing that, if the parents or custodian of any child is too poor to furnish it with the necessary clothing and books with which to attend school, "then