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tration board's session, before he asserted the temporary injunction, and notice directed to iscontrary theory of the law.

sue to defendants of the time and place of such [2-4] In Parvin v. Wimberg, supra, an elec-hearing, and, before the date so fixed, on de

fendants' motion the order was dissolved, the tion contest case, this court referred to the dissolving order was not appealable under subpre-election report of a committee on the division 17 of section 1392, Burns' Ann. St. interpretation of the then new Australian 1914, allowing appeals from interlocutory or

ders dissolving temporary injunctions, although ballot law of 1889, and said:

the order used the words "temporary injunc. "This construction having been accepted and tiou," and the judge dissolving it described it acted upon by the officers whose duty it was as a "restraining order" or "temporary injunc. to administer the law, the courts should not tion,” since, being issued without notice, it now ignore it, unless it is palpably wrong." was a mere restraining order.

We cannot say that the auditor's decision, [Ed. Note.-For other cases, see Appeal and following the interpretation of the commit- Error,

Cent, Dig. $$ 670, 671, 675-679; Dec.

Dig. Om 100(2). tee, was so palpably wrong as to warrant

For other definitions, see Words and Phrases, interference therewith by the extraordinary First and Second Series, Restraining Order; process of mandate, especially where first Temporary Injunction.] invoked after the registration period has

Appeal from Circuit Court, Hancock Counended. Indeed, we are of the opinion that

ty; Earl Sample, Judge. as the law invests the county auditor with the primary duty of determining the question against Harry J. Milligan and others. From

Action by Benjamin F. Mason and others of the necessity of a complete new registration, such determination, even if erroneous, order, plaintiffs appeal. Dismissed.

an order dissolving a temporary restraining if acted on in good faith by the proper election officers, cannot be assailed by mandate

John B. Hinchman, of Greenfield, Henry A. after the registration period has ended; Lee, of Bloomington, and E. E. McFerren, of and in this case, had the county auditor Indianapolis, for appellants. J. J. Daniels, determined that a complete registration was of Indianapolis, for appellees. unnecessary, notwithstanding the destruction of the pollbooks, and had a supplemental ERWIN, J. Action was brought by appelregistration only been held, we are of the lants, in the superior court of Marion counopinion that, after the end of the registration ty, against appellee Milligan, for damages period, no voter of the precinct could have for the wrongful conversion of certain propbeen heard in a claim that complete regis- erty, and to enjoin the delivery of a deed of tration was necessary. In every precinct of conveyance by appellee Jones, as sheriff of the state there was a registration in October, Monroe county, Ind., which the complaint the character of which, whether supplemental alleges was about to be delivered by said or complete, was indicated by the auditor's sheriff to his codefendant and appellee Millinotice. Officers and voters acted accordingly, gan in conformity to the terms and condiand, after October 10th, there could have tions of a certain certificate of sale, issued been no further registration, and the voter's by said sheriff to said Milligan on a sale rights in the several precincts must be viewed on a certain judgment, 'obtained by said in the light of the character of registration, Milligan against appellants in the Morgad whether complete or supplemental, that was circuit court. actually held. Otherwise hopeless confusion Upon filing of the complaint a temporary would result. We are of the opinion, under order was issued by the court, in conformity the facts pleaded, that relator, having failed with the allegations and prayer of the comto register where complete registration was plaint, without hearing or notice, and a time required by the auditor's notice, is not enti- was then fixed, by the court, for the hearing tled to have his name placed on the registra- of the application for a temporary injunction records.

tion, and directing a notice to issue for apJudgment reversed, with instructions to pellees of the time and place for such hearoverrule the demurrer to appellant's answer. ing. Before the date fixed for the hearing

and before the maturity of the notice, apSPENCER, J., not voting.

pellees appeared and filed a motion to dis

solve the order theretofore made. In the (185 Ind. 319)

order of the court heretofore referred to, the MASON et al. v. MILLIGAN et al. words "temporary injunction" were used. (No. 23124.)

The venue of the cause was afterwards (Supreme Court of Indiana. Nov. 1, 1916.)

changed to the circuit court of Hancock coun

ty, where, after due consideration of said moAPPEAL AND ERROR 100(2)-DECISIONS RE- tion to dissolve the order theretofore issued,

VIEWABLE - INTERLOCUTORY ORDER "RE-
STRAINING ORDER"-"TEMPORARY INJUNC-

the judge of said court dissolved the "reTION.”

straining order” or “temporary injunction." Where, upon filing of a complaint, a tempo- From this action of the court, appellants rary restraining order was issued in conform- appealed to this court. ity with the allegations and prayer of the complaint, without hearing or notice, a time fixed

Appellees have here moved to dismiss this for the hearing of plaintiffs' application for, appeal, on the grounds that no appeal will lie

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

woman

from an order of the circuit court dissolv- ! Appeal from Circuit Court, Harrison Couning a temporary restraining order; contend-ty; Wm. J. Ridley, Judge. ing that the order issued by the court was Abraham Harper was convicted of rape, only a restraining order, notwithstanding and he appeals. Reversed, with instructions that the same was designated by the court, to sustain motion for new trial. and by the parties in the record and plead

C. W. Cook, G. K. Gwartney, and M. W. ings, as a "temporary injunction.” Appel. Funk, all of Corydon, W. F. Avery, of Palmy. lants contend that by designating the order

ra, and J. H. Weathers, of New Albany, for “temporary injunction," that the same was

appellant. Thomas S. Jones and William such, and was so considered by the court and Habermel, both of Corydon, Evan B. Stotsenthe parties, and that from an order dissolving burg, Atty. Gen., Charles T. Brown, of Engthe same an appeal will lie to this court, un lish, and Sam P. Vogt and R. S. Kirkham, der subdivision 17 of section 1392, Burns 1914. both of Corydon, for the State.

The proper decision of the question involved depends upon whether the order issued was in fact a temporary restraining order or peal from a judgment of the trial court con

LAIRY, J. Appellant prosecutes this apa temporary injunction. This court having victing him of the crime of rape committed had under consideration the same question in

upon a feeble-minded woman. The only error another case, said: “The infallible distinction between a temporal of the trial court in denying his motion for a

upon which the appellant relies is the action ry restraining order and a temporary injunction is that the former issues without notice on a new trial. Several causes are embodied in showing of emergency, and the latter issues the motion, but all are waived, except the only after notice and hearing." Terre Haute

one based on newly discovered evidence. & Logansport Ry. Co. v. St. Joseph, South Bend & Southern R. R. Co. et al., 155 Ind. 27,

(1) For the purpose of presenting the ques30, 57 N. E, 530, 532.

tion involved some facts may be stated about Governed by the rule as stated above, the which there is no controversy. It is not con

the order of the court was a temporary restrain-troverted that Eva Mosier, ing order, and not a temporary injunction, against whom the crime was committed, was and no appeal lies to this court; there having so feeble-minded as to be incapable of giving been no disposition by the court or ruling consent, that she was never married, and that made on the application for a temporary in- in the month of October, 1914, she gave birth junction, the same is still pending before the to a bastard child, which died before Christcircuit court for consideration. An inter- mas. Proof of her imbecility and the birth locutory order dissolving a temporary re- of the child under the circumstances stated straining order is unappealable. Terre clearly established the commission of the Haute, etc., Ry. Co. v. S. Bend, etc., R. R. Co., offense of rape by some person. The corpus supra.

delicti having been established, it remained Appeal dismissed.

only to fix the responsibility of the crime. For the purpose of fixing the crime on the

defendant, Eva Mosier testified that Abraham (185 Ind. 322)

Harper had sexual intercourse with her a HARPER V. STATE. (No. 23010.)

number of times in the woods near a school(Supreme Court of Indiana. Nov. 9, 1916.) house, and the time was fixed in the fall and 1. RAPE 51(2)

winter preceding the birth of the child. ELEMENTS OF OFFENSE FEEBLE-MINDED VICTIM.

She also testified that no other person than Corpus delicti of rape is established by proof the defendant ever had carnal knowledge of that the victim was feeble-minded, never mar- her. He denied that he had ever had any ried, and gave birth to a bastard child.

sexual relations with her. [Ed. Note.-For other cases, see Rape, Cent. Dig. $ 72; Dec. Dig. 51(2).]

The newly discovered evidence upon which 2. RAPE 40(3) — DEFENSES — Acts of Oth- sists of the testimony of two witnesses, Noble

appellant sought to obtain a new trial con. Where one has intercourse with a feeble-C. Hurn and Levi C. Hurn. As shown by the minded woman, it is no defense or justification affidavit of appellant and the separate afthat other persons also had such relations with fidavits of the proposed witnesses, they will her.

[Ed. Note. For other cases, see Rape, Cent. both testify that on the second Sunday in Dig. § 57; Dec. Dig. 40(3).)

January, 1914, they were passing an old 3. CRIMINAL LAW Cm945(2) NEW TRIAL

vacant house which stood back some distance NEWLY DISCOVERED EVIDENCE.

from the road, and which was known as the Where proof of birth of bastard child to old Dean house, and that they saw a pair of prosecutrix, who was feeble-minded, was offered jennies hitched near the house. Being thus to show corpus delicti, newly discovered evidence that persons other than accused had inter- attracted they went quietly to the house and, course with her is sufficient on which to grant looking through a window, saw Elba Foutz new trial, having a tendency to destroy corrobo and Eva Mosier on the floor in the act of rative effect of pregnancy. [Ed. Note. For other cases,

sexual intercourse. Elba Foutz was a wit

see Criminal Law, Cent. Dig. 88 2324–2327; Dec. Dig. ness in the case, and gave testimony of a 945(2).]

nature very damaging to defendant.

ERS.

The state's attorney asserts that this evi-, question and to present it at the first trial dence, if produced at another trial, would be was not due to a lack of diligence on the incompetent, and that the trial court prop- part of the defendant. erly refused to grant a new trial for this The judgment is reversed, with instrucreason.

tions to sustain appellant's motion for a [2, 3] If the defendant, knowing the mental new trial, and for further proceedings not condition of Eva Mosier, had carnal knowl- inconsistent with this opinion. edge of her, he is guilty of the offense charged against him, and it would be no excuse or

(186 Ind. 374) justification of his act to show that other HOLLON v. STATE. (No. 23105.) * persons had committed a similar offense (Supreme Court of Indiana. Nov. 10, 1916.) against her. In this case, however, it was 1. INTOXICATING LIQUOBS m152—SALE BY shown that she was pregnant, and this was DRUGGISTS-NECESSITY OF LICENSE. a circumstance which, unexplained, tended To avail himself of the exception of Burns' strongly to incriminate the defendant. The Ann. $t. 1914, $ 8351, in favor of licensed drugfact that she was pregnant and was delivered a license from the state board of pharmacy,

gists, in sale of liquors, a druggist must secure of a child fully developed in October, 1914, without which, for unlawful sale, he may be clearly shows that some person had sexual prosecuted under such section, rather than relations with her some time about the month sections 8349, 8352, which apply regardless of

license. of January of that year. She testified that

(Ed. Note.-For other cases, see Intoxicating she had never had such relations with any Liquors, Cent. Dig. 88 161, 165, 167; Dec. Dig. one except defendant, and this fact, if true, w 152.] when considered in connection with her preg-2. CRIMINAL LAW C1122(5)-APPEAL-BILL nancy, clearly established his guilt. He de OF EXCEPTIONS--INSTRUCTIONS, nied that he had ever had any such relations in a criminal case cannot be considered, un

Bills of exceptions to refusal of instructions with her, but the fact of her pregnancy tend- less they affirmatively show that they contain ed strongly to corroborate her testimony. all the instructions given, since, if they do pot, The defendant bad a right to prove any fact it must be presumed that others were given

covering the substance of those requested. which would explain or account for her preg

(Ed. Note.-For other cases, see Criminal nant condition on a theory consistent with Law, Cent. Dig. & 2943; Dec. Dig. Ow1122(5).) his innocence. If there had been no proof of

Appeal from Circuit Court, Pike County ; pregnancy, this evidence would not have been

John L. Bretz, Judge. competent, but it was competent to explain

Henry Hollon was convicted of an offense, this incriminating circumstance and for no

and he appeals. Affirmed. other purpose. The evidence is proper for the consideration of the jury, in connection Alvin Padgett and Benjamin J. Burris, with all the other evidence, in determining both of Washington, Ind., and Henry Carpenwhether the defendant did have carnal in- ter, of Petersburg, for appellant. Evan B. tercourse with the feeble-minded woman as Stotsenburg, Atty. Gen., Thos. H. Branaman, charged in the indictment; but, if that fact of Brownstown, and Stanley M. Krieg, of is legally established, it can be of no im- Petersburg, for the State. portance that other persons had been guilty of a similar offense, or that another was

SPENCER, J. [1] Appeal from a judgthe father of the child with which she was ment of conviction based on an affidavit pregnant.

which charges appellant with keeping, runThe exact question here involved has never ning, and operating a place where intoxicatbefore been presented to this court, but de- ing liquors were unlawfully sold. In support cisions of other states support the conclu- of his assertion that the verdict of the jury sion reached in this opinion. People v. Fla- | is contrary both to law and to the evidence herty, 79 Hun, 48, 29 N. Y. Supp. 641; Bice given at the trial, appellant contends that, as v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; a retail druggist, even though unlicensed as People v. Currie, 14 Cal. App. 67, 111 Pac. such, he is not liable to prosecution under 108; Kanert v. State, 92 Neb. 14, 137 N. W.

section 8351, Burns 1914, on which the affi975.

davit is based; that a druggist who sells inThe Attorney General has cited a number toxicating liquors unlawfully may be prose

cuted under either section 8349 or section of cases from this state to sustain the propo- 8352, Burns 1914, and under no other law. sition that the evidence in question is incompetent. Lovell v. State, 12 Ind. 18;

Section 8351, supra, provides, in part, that: Wilson v. State, 16 Ind. 392; Richle v. State, a place where intoxicating liquors are sold, bar

"Any person who shall keep, run or operate 58 Ind. 355; Heath . State, 173 Ind. 296, tered or given away in violation of the laws 90 N. E, 310, 21 Ann. Cas. 1056.

of the state

shall be An examination of these cases will show of a misdemeanor," etc. that they are not in point as to the question

It provides further: directly involved in this case.

"That none of the provisions of this sectinn The facts disclosed by the affidavit show is licensed as such by the state board of pbar

shall apply to any druggist or pharmacist who that his failure to discover the evidence in macy.' For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

• guilty

In the case of State v. Cameron, 176 Ind. | pecially where the record shows that the par385, 96 N. E. 150, this court passed on sub- ties themselves proceeded on such theory. stantially the same question which is now

[Ed. Note.-For other cases, see Appeal and presented for consideration, and held, in ef- Error, Cent. Dig. 88 1056–1061; Dec. Dig. Ons

171(3).] fect, that although a druggist need not take 2. ATTORNEY AND CLIENT Cw128—COMPENSAout a license in order lawfully to deal in cer

TION-ACTION-QUESTION FOR JURY. tain articles of trade, yet he must be licens. In suit by client for money collected, which ed by the state board of pharmacy before defendant claimed was retained by him as a he may sell intoxicating liquors or operate reasonable attorney's fee with plaintiff's con

sent, the question of amount due was for the a place where the same are sold in any jury. quantity under the exception contained in the

(Ed. Note. For other cases, see Attorney and statute above quoted. It is true that in the Client, Cent. Dig. 88 274–283; Dec. Dig. Om case of Shank v. State, 183 Ind. 298, at page

128.] 304, 108 N. E. 521, at page 523, we noted that 3. APPEAL AND ERROR Om1001(1)-REVIEWreference to section 8349, Burns 1914, was

QUESTIONS OF FACT.

Where there is some evidence to support the inadvertently omitted from the statement in verdict, that is sufficient on appeal. State v. Cameron, supra, that, “sections 8351,

[Ed. Note. For other cases, see Appeal and 8352, supra, cover the whole subject of sales Error, Cent. Dig. 8$ 3928–3933; Dec. Dig. Omo of intoxicating liquors by druggists,” but 1001(1).]

AGREEMENT OF the correction thus made in no way served 4. ACCOUNT STATED Oml

PARTIES. to disapprove the holding in the Cameron

Before there can be an account stated, there Case, and, on a present review of the ques- must have been prior dealings between the partion in issue, we are satisfied with the con- ties, and after examination by each of all the clusions therein reached. Appellant makes the items, and that the balance struck

is just

items, they must have mutually agreed upon no contention that, in this view of the case, and due from the party against whom it is the evidence is insufficient to sustain his con- stated. viction.

(Ed. Note.-For other cases, see Account Stat[2] Certain questions are sought to be pre-ed, Cent. Dig. $$ 1-8; Dec. Dig. Owl.] sented as to instructions given and refused, 5. Account STATED Owl-NATURE OF “ACbut it does not appear from the bill of ex

COUNT STATED.''

An account stated amounts to more than an ceptions containing such instructions wheth- admission of an amount due, and is a new cause er it contains all of the instructions in the of action. case. As said in State v. Winstandley, 151

[Ed. Note.--For other cases, see Account Stat

ed, Cent. Dig. $8 1-8; Dec. Dig. Oml. Ind. 495, at page 496, 51 N. E. 1054:

For other definitions, see Words and Phrases, “When, in a criminal case, it is not affirma- First and Second Series, Account Stated.] tively shown by the bill of exceptions that it contains all the instructions given by the court 6. Account STATED Ow19(3) EVIDENCE to the jury, this court must presume that such

PRESUMPTION. bill of exccptions does not contain all the in

In the absence of express agreement, the structions given. Cooper v. State, 120 Ind. receipt and retention of a statement of account 377, 383, 384 [22 N. E. 320). In such case amounts to no more than prima facie proof of the presumption is that the substance of the agreement upon a balance. instructions asked was braced in the instruc [Ed. Note.-For other cases, see Account Stattions given by the court, which are not con-ed, Cent. Dig. $ 93; Dec. Dig. Om 19(3).] tained in the bill of exceptions, and that, if any instructions given by the court, and set out in

Appeal from Circuit Court, Marion County; the bill of exceptions, are erroneous, tuey were Charles Remster, Judge. corrected or withdrawn by other instructions Action by Tirza B. Brash against William given by the court, and not set forth in the

Bosson. From judgment for plaintiff, de record."

fendant appeals. Affirmed. We may not, therefore, consider the in

William Bossun, of Indianapolis, in pro. structions given and refused, but it is sufficient to note that our cota:lusions above stat. per. William W. Lowry, of Indianapolis, for

appellee. ed serve to dispose of the principal questions thus sought to be presented.

FELT, J. This is a suit to recover money No error appearing, the judgment of the alleged to be due appellee from appellant. trial court is affirmed.

The complaint was in four paragraphs. The first was for money had and received. The

second paragraph alleges, in substance, that (63 Ind. App. 86) BOSSON v. BRASH. (No. 9141.)

on January 11, 1908, appellant received from

William Lowe Rice, receiver, $3,441.63 be(Appellate Court of Indiana, Division No. 1. longing to appellee, and then and there Nov. 9, 1916.)

agreed to pay the same to her; that before 1. APPEAL AND ERROR Cw171(3)—PRESENTA- bringing this suit, on July 27, 1910, appellee TION OF OBJECTIONS—THEORY OF CAUSE-demanded payment of said sum from appelPLEADINGS.

lant, and payment was by him refused. The A theory of the pleadings adopted by the third paragraph avers that appellant, a practrial court will be adhered to on appeal, whereever the pleadings from their plain terms are ticing attorney, was employed by appellee susceptible of such construction and theory, es- to collect for her certain promissory notes ;

that he collected thereon $3,441.63 on Jan The pleadings and records of the trial susuary 11, 1908, and on January 16, 1908, paid tain the appellee's contention as to the appellee the sum of $2,306.90, and retained theory of the pleadings and the theory on $1,135.73 as attorney's fees; that on July which the case was tried below. 27, 1910, appellee demanded from appellant [1] The theory of a pleading must be dethe sum of $719.75, and payment was refused ; termined by a consideration of its general that 10 per cent. of the amount collected scope and tenor, and the theory adopted by was a reasonable fee for appellant's services; the trial court will be adhered to on appeal, that the amount retained by him was exorbi- where such pleading, from its plain terms, tant and unreasonable. The fourth para- ( is susceptible of such construction and theory. graph is substantially like the third, except The application of this rule is emphasized it is alleged the notes provided for 5 per where it also appears from the record that cent. attorney's fees, and appellant agreed the parties themselves proceeded on such to accept that amount in payment for his theory, as in the present instance. McKinley services.

v. Britton, 55 Ind. App. 21-24, 103 N. E. 349; The complaint was answered by a general | Euler v. Euler, 55 Ind. App. 547–553, 102 N. denial and by a paragraph of special answer, E. 856; Knight & Jillson Co. v. Miller, 172 which set up in detail appellant's employ- Ind. 27-31, 87 N. E. 823, 18 Ann. Cas. 1146; ment and services as attorney for appellee; Studabaker v. Faylor, 170 Ind. 498-507, 83 that at the time of his employment he in- N. E. 747, 127 Am. St. Rep. 397; Muncie Portformed appellee his fee would amount to land Traction Co. v. Citizens' Gas, etc., Co., from 20 to 40 per cent. of the amount col- 179 Ind. 322-329, 100 N. E. 65. lected; that he charged and retained for [2] On this theory it was a question for his fees 33 per cent. of the amount collected, the jury to deterinine from the evidence the and appellee stated that such fee was satis. amount, if any, due appellee from appellant. factory to her, and it was agreed that the [3] There is some evidence to sustain the sum of $1,135.73 was due him as attorney's verdict, and on appeal that is sufficient. fees.

Furthermore, if it were conceded that the To the speecial answer appellee filed a pleadings present the question of an account reply of general denial. A trial by jury stated as a defense to the suit we think the resulted in a verdict for appellee of $300. same results would follow in this case. The error assigned and relied on for reversal [4] Before there can be an account stated is the overruling of appellant's motion for there must have been prior dealings be a new trial. A new trial was asked on the tween the parties, and after an examination ground that there was error in the assess of all the items by each of the parties, they ment of the amount of recovery, it being must have mutually agreed upon the items too large; that the verdict is not sustained of the account, and that the balance struck by sufficient evidence, and is contrary to law. is just and due from the party against whom

The propositions urged by appellant are: it is stated. (1) That the acceptance by appellee without [5] An account stated amounts to more objection of the amount collected, less the than an admission of an amount due. It 33 per cent. retained by him as attorney's is a new cause of action, and in a suit upon fees, was binding on her as to the amount such an account, the inquiry is not directed of such fee; (2) that the retention by him to the original transaction out of which the of his fee and the remittance to, and accept- account arose, but is directed to the questions ance by, appellee of the balance of the amount of whether the parties had in fact agreed collected, resulted in an account stated, bind- upon the amount due and whether the same ing upon both parties to the transaction ; was unpaid. that the retention by appellee for so long a The account stated arose originally out time of the amount received by her from of transactions between merchants and perappellant is conclusive evidence of her as sons engaged in commercial transactions, sent to the settlement.

and the rule was evolved that the receipt Appellee contends that the idea of an ac- by one of the parties of an account showing count stated between the parties is an after- a balance against him and the retention thought of appellant, and that there is noth- thereof for a reasonable length of time suffiing in the pleadings or proceedings of the cient to examine the same and make objectrial, up to the filing of the motion for a new tions thereto, and a failure so to do, amounttrial, to suggest such theory; that on the ed to an approval of the statement rendered, part of appellee the contention was that and it thereby became an account stated. appellant owed her money received by him There is considerable difference in the applias her attorney and not accounted for to cation of this rule in different jurisdictions. her; that the amount retained by him as In many states the rule has been extended attorney's fees was unreasonable and exorbi- to transactions between persons generally tant, and was never agreed to by her; that which result in accounts between them, but appellant defended the suit on the ground it has not been applied in such instances that the amount retained by him was a fair with the same strictness that obtained in the and reasonable fee, and that appellee had earlier decisions dealing with transactions given her assent thereto.

between merchants. What will amount to a

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