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owner or owners,
may apply for to each and every part of the statute, to the such drainage by petition filed in duplicate circumstances under which it was enacted, the to the circuit court or superior court of the old law on the subject, other statutes on the
or relative subjects, whether in force county in which the lands of the petitioner or repealed, to contemporaneous legislative bisor petitioners are situated.”
tory, and to the evils and mischiefs to be remThe 1915 act, as it clearly appears from edied. the title, looks to the organization of drain. cent. Dig. 3 259; Dec. Dig. Eww181(1).]
(Ed. Note.-For_other cases, see Statutes, age districts, the boundaries of which are to be fixed by the court, and furnishes the 2. STATUTES Ow243—CONSTRUCTION-STATU.
TOBY PROCEEDINGS-RULES OF PRACTICE. procedure for the complete drainage and
Where a proceeding is a special statutory reclamation of the entire district, regardless one, the general rules of practice in civil acof the number of ditches required, while the tions are applicable, when the statute is silent. act of 1907, supra, contemplates a single cent. Dig. ** 324; Dec. Dig. 243.]
(Ed. Note.-For other cases, see Statutes, ditch or laterals which must be clearly pointed out in the petition.
3. MUNICIPAL CORPORATIONS 511(2)-In
PROVEMENTS REFERENCE OF APPEALS TO The repeal of a statute by implication is
REVIEWERS-STATUTE. not favored, and when it is possible so to do, In a city's proceeding, to improve an open two or more acts on the same subject will drain by constructing a sewer, under the provi: be so construed that they both may stand. sions of Burns' Ann. St. 1914, 8. 8729, providBoard v. Garty, 161 Ind. 464, 68 N. E. 1012. ing for the appointment by the circuit court of
a board of assessors, and that appeals from its In 1 Lewis's Southerland, Stat. Constr. (2d assessments may be made to the circuit court Ed.) 8 267, the author says:
within 15 days from filing of the assessment “As laws are presumed to be passed with de- roll
, to be conducted as other appeals, the cir. liberation and with a full knowledge of all exist- cuitcourt committed error in sustaining the ing ones on the same subject, it is but reason- city's motion to refer the appeals of parties asable to conclude that the Legislature, in passing in overruling appellants' various motions to sub
sessed to three disinterested reviewers, and a statute, did not intend to interfere with or mit the appeals to the court for bearing and to abrogate 'any former law relating to the same strike out the report of the reviewers. matter, unless the repugnancy between the two is irreconcilable."
(Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. $ 1184; Dec. Dig. This court has many times affirmed the m511(2).] rule that implied repeals are only recognized 4. DRAINS 70 – IMPROVEMENTS ASSESSand upheld when the latter act is so repug MENTS-STATUTE-"PROPERTY." nant to the former as to render them wholly The word "property," as used in Burns' irreconcilable. Beard v. State, 176 Ind. 353, Ann. St. 1914, § 8729, relative to the improve
ment of water courses, and drainage, or the 95 N. E. 1103, and cases cited. Collins Coal construction of any sewer or drain, and asCo. v. Hadley, 38 Ind. App. 637, 75 N. E. 832, sessments therefor, means real property as dis78 N. E. 353; Monical v. Heise, 49 Ind. App. tinguished from personal property. 302, 94 N. E. 232.
[Ed. Note.-For other cases, see Drains, Cent. While the general purpose of the two acts, Dig. $ 74; Dec. Dig. 70.
For other definitions, see Words and Phrases, drainage of land, is the same, yet no one will First and Second Series, Property.) seriously contend that they do not proceed
5. MUNICIPAL CORPORATIONS Cm 425(3) on widely different lines, and that either, in
STREET IMPROVEMENT-PROPERTY ASSESSAa proper case, may be followed without con BLE-RAILROAD'S RIGHT OF WAY. flict with the other. True when a drainage
A railroad company's right of way abutting district has been formed, and the association upon a street is subject to assessments for the
improvement of such street. perfected as provided in the 1915 act, as to
[Ed. Note.-For other cases, see Municipal that district the application of the earlier Corporations, Cent. Dig. 1033; Dec. Dig. act would be excluded. But in the case at 425 (3).] bar it is not contended that the ditch in ques. 6. DRAINS 70 — IMPROVEMENT – PROPERTY tion, or any part of it, is within the bound ASSESSABLE INTERURBAN RAILROAD'S
RIGUT OF WAY-STATUTE — "EASEMENT OR aries of any incorporated district, yet it is
INTEREST IN LAND." insisted that after the passage of the lat An interurban railroad company, owning ter act the proceedings should have been and operating a railway in a city's streets, does dismissed or continued under this act. There not hold any "easement or interest in the land" is no ground for this insistence, and no rea- 1 of the city giving a company a right to use the
on which the tracks are located, the permission son for holding that both acts cannot stand. street being part of the public easement, and The judgment is affirmed.
the city and not the railroad company, being assessable for the benefits accruing to the public
easement in the street from the improvement (186 Ind. 9)
of an open drain under Burns' Ann. Št. 1914, 8
8729. HAYNES AUTOMOBILE CO. et al. v. CITY
[Ed. Note.--For other cases, see Drains, Cent. OF KOKOMO. (No. 22708.)
Dig. § 74; Dec. Dig. Ow70.) (Supreme Court of Indiana. Jan. 4, 1917.)
Appeal from Circuit Court, Howard Coun. 1. STATUTES 181(1)–CONSTRUCTION-LEG-ty; Wm. C. Purdum, Judge. ISLATIVE INTENT.
Proceeding by the City of Kokomo, under In construing a statute, the Supreme Court will seek to discover and carry out the intention the provisions of Burns' Ann. St. 1914, i of the Legislature, and in search for it will look | 8729, to improve an open drain, wherein
the Haynes Automobile Company, the Union, of appellee's motion to submit the appeals Traction Company of Indiana, and another and remonstrances of appellants to three diseach filed written appeal to the circuit interested reviewers, and in overruling their court and moved that the appeals be submit- various motions to submit the appeals to the ted to and determined by the court, and that court and their motions to strike out the rethey, as remonstrators, be permitted to in- port of the reviewers. Appellant Union Tractroduce evidence in support of their appeals, tion Company also assigns the additional erand the Union Traction Company of Indiana ror of overruling its motion to strike out of moved to strike from the assessment roll and the assessment roll the assessment against declare void the assessments against its its franchise right of way within the city. right of way within the city of Kokomo under The first four errors assigned present for franchise given it by the city. The court consideration the question: Did the court err overruled the motions, and submitted the in referring the appeals to reviewers instead appeals to three reviewers to view and assess of considering the same and hearing evithe property, who returned a report that dence thereon? Section 122 of the act of the former assessments were not excessive, 1905 (Acts 1905, p. 310) and section 8729, whereupon appellants moved the court to Burns 1914 (Acts 1909, p. 238), both provide strike out the report because the court was for the appointment by the circuit court of a not authorized to submit the appeals to board of assessors to view the line of the the reviewers. From judgment overruling drain, the lands to be benefited and those the motions and new motions that appellants' damaged, and make an assessment roll, showappeals be submitted to the court, and that ing the benefits to all the lands and property, they be permitted to introduce evidence in and a roll showing the damages to the lands support thereof, the Haynes Automobile Com- injuriously affected, if any. Section 8729 pany, the Union Traction Company of Indi- further provides: ana, and another appeal. Judgment reversed, "That appeals from such assessments may be with instructions
made to the circuit court within fifteen days
from the time such assessment rolls are filed, J. A. Van Osdol, of Anderson, and Black- to be conducted as other appeals." lidge, Wolf & Barnes, of Kokomo, for ap It was the evident intention of the Legispellants. Joseph C. Herron, of Kokomo, for lature that the report of the assessors should appellee.
be fied in the circuit court, and that the cir.
cuit court should have power to review the ERWIN, J. This proceeding was to im- assessment by the trial of the issues joined prove an open drain, known as “Petes run" on the assessments. And “to be conducted flowing through the southern portion of the as other appeals” meant that the court city of Kokomo, Ind., by constructing a sewer, should try the issue as to the assessments extending beyond the city corporation limits, as other appeals are tried, which would be to under the provisions of section 8729, Burns hear evidence independent of the report of 1914. Within 15 days after the filing of the the assessors. This is further evident from assessment roll the three appellants, Haynes the provision in said section: Automobile Company, Union Traction Com
"That the judge shall have the power to call pany, of Indiana, and Traction Land Com the said assessors together, who shall be au
thorized and empowered to make any such adpany, each filed their written appeal to the ditions or corrections as may be necessary from Howard drcuit court, and moved that the time to time." appeals be submitted to and determined by This would give effect to all portions of the court, and that they, as remonstrators, the statute under consideration, and carries be permitted to introduce evidence in support out the evident intent of the Legislature. of their appeals. The Union Traction Com- This action makes no provision for the appany of Indiana moved to strike from the pointment of reviewers, but does provide that assessment roll and to declare void the assess the assessors shall be subject at all times ment against its right of way within the city to the direction of the court. of Kokomo under franchise given it by the  In construing a statute, the court will city. The court overruled the above mo seek to discover and carry out the intention tions, and submitted the appeals to three re- of the Legislature in its enactment. In the viewers to view and assess the property. The search for that intention the court will look reviewers returned a report that the former to each and every part of the statute, to assessments were not excessive, whereupon the circumstances under which it was enactthe appellants moved the court to strike out ed, to the old law upon the subject, if any, the report of the reviewers, for the reason to other statutes upon the same subject, or that the court was not authorized to sub- relative subjects, whether in force or repealed, mit its appeals to the reviewers. These mo to contemporaneous legislative history, and tions were overruled. Appellants again to the evils and mischiefs to be remedied. moved that their appeals be submitted to Hughes v. Indiana Union Trac. Co., 57 Ind. the court, and that they be permitted to in- App. 202, 105 N. E. 537; Thorn V. Silver, troduce evidence in support thereof, which 174 Ind. 504, 89 N. E. 943, 92 N. E. 161. motions were likewise overruled.
 Appellee contends that the statute does Appellants assign as error the sustaining not provide any method of procedure to be
followed by the trial court. Where the proplands of frontagers. Pittsburgh, etc., R. Co. ceeding is a special statutory one, the general v. Muncie, etc., Trac. Co., 174 Ind. 167, 176, rules of practice in civil actions are applica- 91 N. E. 600, and cases cited. ble, when the statute is silent. Thorn v. Sil.  If there is no additional burden, the ver, 174 Ind. 505, 513, 89 N. E. 943, 92 N. construction and operation of an interurban E. 161.
street railroad upon a street is not different  Under the above construction of the in character or extent from that contemplatstatute the court committed error in sustain- ed at the time of the dedication or condeming appellee's motion to refer the appeals to nation of the street. It must follow, there three disinterested reviewers and in over- fore, that such companies, owning and operruling appellants' various motions to submit ating such railways in the streets, do not the appeals to the court for hearing and to hold any easement or interest in the land strike out the report of the reviewers. upon which the tracks are located. The per
 Appellant, Union Traction Company of mission of the city giving the company a Indiana, contends under its fifth assigment right to use the street is a part of the public of error that the tracks of a street and inter- easement, and the city is assessable for the urban railroad lying wholly within a city benefits accruing to the public easemept in street are not "property" within the meaning the street. There is here no showing that of section 8729, supra. There can be no the franchise of the appellant provided that doubt that the word "property" as there it should pay any portion of the benefits to used means real property as distinguished this easement, or that the right of way asfrom personal property. Marion, etc., Trac. sessed was a private right of way such as Co. v. Simmons, 180 Ind. 289, 292, 102 N. E. was considered in the case of Marion, etc., Co. 132.
V. Simmons, supra. We are therefore of the Appellee cites the case of Marion, etc., opinion that the court erred in overruling Trac. Co. v. Simmons, supra, and contends the appellant's motion to strike out the asthat the right of way in this case is property sessment against its right of way over the within the meaning of section 8729, supra. streets of appellee. The opinion in that case does not clearly For error in sustaining appellee's motion show, but the record discloses, that the right to submit the appeal to three disinterested of way under consideration was a private reassessors and in overruling appellants' mointerest in the land which the company, as tions to submit the appeal to the court for the court said, might make the subject of a trial upon the issues, the judgment is regrant. Therefore that case is not on a par versed, with instructions to overrule appelwith this one, for here the right of way is lee's motion to submit the appeal to reapshown to be a mere grant of a right to use praisers and to sustain appellants' motion a public street. It has been held that a to strike out the report of the reassessors, private right of way of a railroad may be and to sustain the motions submitting the regarded as a parcel of land for the purpose appeals to the court for trial and determina. of drainage assessments because the company tion, owned an interest in the soil amounting, at least to an easement. Louisville, etc., R. Co.
(63 Ind. App. 533) v. State, etc., 122 Ind. 443, 24 N. E. 350.
BUTLER V. BUTLER. (No. 9206.)  A railroad company's right of way (Appellate Court of Indiana, Division No. 2. abutting upon a street is subject to assess
Jan. 11, 1917.) ments for the improvement of such street. 1. TENANCY IN COMMON 28(1)—LIABILITY Pittsburgh, etc., R. Co. v. Taber, 168 Ind.
OF TENANT IN POSSESSION FOR RENTS.
The possession of one tenant in common be419, 77 N. E. 741, 11 Ann. Cas. 808.
ing the possession of all, the tenant in possesIn Indianapolis, etc., R. Co. v. Capitol Pav-sion is not liable for rent unless he excludes ing etc., Co., 24 Ind. App. 114, 117, 54 N. E. his cotenant, but if he receives rent from a 1076, 1078, it is said:
third person he must account for it.
(Ed. Note.-For other cases, see Tenancy in “When a company lays its tracks in the street, Common, Cent. Dig. 88 76, 83; Dec. Dig. it imposes a new burden upon the land beyond 28(1).] the easement the city had, and this new interest can be created only by contract with the 2. TENANCY IN COMMON 14 OUSTER OF owners of the fee, or under the right of emi
COTENANT. nent domain."
Where a tenant in possession purchases the
land at a tax sale and takes a deed in his own The court was there considering a street name claiming at the time of the sale and thereimprovement, and intimitated that an assess after that he is the owner and holds possession ment for drainage might be enforced against deemed to have ousted his cotenant, for he
at all times under such claim and deed, he is the railroad company. This, however, is up-claims under a deed conveying the whole eson the theory that the right of way is land tate. by reason of being an additional burden upon
[Ed. Note.-For other cases, see Tenancy in the lands occupied by the street. This court Common, Cent. Dig. $8 30-41; Dec. Dig. bad held, however, that the use of a street 3. TENANCY IN COMMON 20(2),TAX TITLE. by an interurban railroad does not constitute Where one of several tenants in common an additional burden or servitude upon the purchases the common property at a tax sale,
he cannot set up his title thus acquired against | 1904, which were reasonably worth $160 per the common title, but his tax title inures to annum and which, with interest at the rate of the common benefit of himself and cotenant, 6 per cent. per annum from the date of the rethough the common property is subject to the ceipt of each year's rent, aggregated (exclusive charge for the money expended in purchasing of the year 1913), $1,841.94.
(Appelsuch tax title.
lant) made lasting and valuable improvements [Ed. Note.-For other cases, see Tenancy in on said real estate. Paid the purchase money Common, Cent. Dig. 8 61; Dec. Dig. em 2012).J at said tax sale. Paid taxes and assessments 4. TENANCY IN COMMON Raw 2002)-TAX TITLE which were liens on said real estate and on -RATE OF INTEREST.
principal and interest on said mortgage, which The charge on the common property to
amounts so paid, and the value of the improvewhich a tenant in common is entitled for his ments so made, together with interest at the purchase of tax title thereon is limited to the rate of 6 per cent. per annum from the respecamount paid and 6 per cent. interest, and such tive dates of payments and improvements and tenant is not entitled to the principal and in- for wbich he should
be reimbursed, are as folterest provided for tax liens; Burns' Ann. St. $187.25; fencing, $379.50; flood gates. $34.24
Ditches, $275.95; well and clearing, 1914, § 10393, as to tax deeds, not applying. [Ed. Note. For other cases, see Tenancy in 64; and ditch' assessments, $24.28-in an ag
taxes, $599.08; payments on mortgage, $401.Common, Cent. Dig. 8 61; Dec. Dig. Ew20(2).] gregate amount of $1,899.94.
(AppelAppeal from Circuit Court, Miami County; lee) made payments on said improvements and Joseph N. Tillett, Judge.
on the principal and interest of said mortgage
which, with interest at the rate of 6 per cent. Action by Cornelius C. Butler against Harper annum from the respective dates of such lan H. Butler. From a judgment for plain- payments, aggregate $798.28 and has never tiff, defendant appeals. Affirmed.
been paid therefor. * Said real estate
is not susceptible of division without damage Albert Ward, of Peru, for appellant. An to the interests of the respective owners of the trim & McClintic, of Peru, for appellee.
Other facts are found by the court, but IBACH, P. J. An action for partition and they are not important here, as the above for an accounting for rents and profits in facts present the controlling questions in which the defendant set up by way of coun
this appeal. terclaim certain claims for taxes and im. ter of law that appellant and appellee, are
The court concludes as a matprovements. Defendant also, by way of
the owners in fee simple as tenants in comcross-complaint, claims title to such proper mon in equal proportions of said real esty under a tax deed.
The correctness of the conclusions of law tate; that said real estate should be sold, stated on the special finding of facts is the and, after the payment of the costs of this
action and the costs of such sale, the reonly question presented for review. The court finds the following facts: On
mainder of the proceeds should be distributJanuary 31, 1889, the father of appellant ed as follows: "To Harlan H. Butler (ap
pellant) and appellee deeded to them a 40-acre tract
$58; to Cornelius C. But
ler (appellee) of land, for which they paid a cash consid
$798.28; the remaineration of $30 and assumed a school fund der to be divided equally between Harlan mortgage for $350. The father, by a pro- H. Butler and Cornelius C. Butler.” Judgvision in the deed, retained control of the ment followed the conclusions of law. rents and profits of the land during his life
Appellant contends that, as a cotenant in time, and also agreed to pay the taxes dur possession, he was not liable for the rents ing such time. It was agreed between ap
of the land in the absence of an agreement
unless he had excluded his cotenant or repellant and appellee that the one in possession of the land should make needed and ceived rent from third persons; that the valuable improvements thereon, and that they court did not find, either in substance or should be considered and allowed to the otherwise, to the effect that appellee ever one making them in the final settlement or demanded possession or was ever denied posdivision by them of the real estate.
that appellant ever received any taxes became delinquent for the years 1896 rents from third parties; that there was
as to and 1897, and on February 14, 1898, the any agreement between the pa land was sold for taxes and purchased by such possession by appellant; or that there appellant at such tax sale. The land was is any finding of adverse possession or ouster
of appellee. not redeemed, and on March 5, 1900, appellant received a tax deed for it, which deed
 The principle seems well established in was recorded on the same day. At the time this state that the possession of one tenant of the sale and afterwards, and after the in common is the possession of all, and the execution of the tax deed, appellant claim tenant in possession is not required to pay ed and still claims to be the owner of the rent unless he excludes his cotenant; but, real estate by virtue of said sale and deed, if he receives rent from a third person, he
Geisendorff v. Cobbs, and holds possession of the real estate by must account for it. virtue of such deed and sale. The father
47 Ind. App. 573, 94 N. E. 236. died July 4, 1904.
 When appellant purchased the land at The court further finds:
the tax sale and took a deed in his name, Appellant “has received all the rents and claiming at the time of the sale and since profits from said real estate since March 1, I the execution of the tax deed that he was
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
the owner, and at all times since its execu- / at that term, and the filing and approving of a tion holding possession under such claim and bond after the term, but within the time allowed deed, he was under the law claiming under by the trial court, did not cure the omission of
the essential requirement. a deed conveying the whole estate and will
[Ed. Note. For other cases, see Appeal and be deemed to have ousted his cotenant. Nel- Error, Cent. Dig. 88 2059-2062; Dec. Dig. son V. Davis, 35 Ind. 474, 483; King v. 386(1).] Carmichael, 136 Ind. 20, 24, 35 N. E. 509, Appeal from Circuit Court, De Kalb Coun43 Am. St. Rep. 303; Wright v. Kleyla, ty; Ernest A. Brattan, Special Judge. 104 Ind. 223, 4 N. E. 16.
Action by Earl D. Leas, as administrator Appellant next insists that, Inasmuch as of the estate of Sarah A. Rohrbaugh, de the court found that he was entitled to ceased, against Matilda Rohrbaugh. From credit for certain taxes paid, he should have a judgment for plaintiff, defendant appeals, been allowed interest at the rate of 20 per and plaintiff moves to dismiss. Motion suscent. per annum instead of 6, as decreed by tained, and appeal dismissed. the court.
Edgar W. Atkinson and C. M. Brown, both  Where one of several tenants in com- of Auburn, for appellant. Hoffman & Shearmon of an estate purchased the common er, of Auburn, and Wm. H. Leas, of Waterloo, property at a tax sale, he cannot set up his
for appellee. title thus acquired against th common title, but his tax title inures to the common beneAt of himself and his cotenants; though in appearance, moves to dismiss this appeal on
BATMAN, J.  Appellee, under a special such a case the common property is sub- several grounds, only two of which we find ject to the charge of the purchaser at the it necessary to consider. The judgment betax sale for the money expended in such low was rendered in favor of Earl D. Leas, purchase. 38 Cyc. 48, 49; Harrison v. Har- as administrator of the estate of Sarah A. rison, 56 Miss. 174.
Rohrbaugh, deceased, against Matilda Rohr"One tenant in common cannot, while in baugh. The parties are designated in the aspossession of the joint property and enjoying the rents and profits thereof, permit the signment of errors: "Matilda Rohrbaugh, same to go delinquent for nonpayment of tax. Appellant, V. Earl D. Leas, Administrator, es and purchase it in at tax sale and thus ac- Appellee.” The rules of this court require quire his cotenant's title.” English v. Powell, 119 Ind. 93, 95, 21 N. E. 458, 459; Bender v. the assignment of errors shall contain the Stewart, 75 Ind. 88.
full names of the parties, and unless this rule [4) Appellant, having purchased the prop- is complied with the appeal will be diserty at tax sale for the benefit of his co missed. Whisler v. Whisler (1904) 162 Ind. tenants, could not profit by such transaction. 136, 67 N. E. 984, 70 N. E. 152, and Bender Therefore this case is not controlled by sec V. State ex rel. (1911) 176 Ind. 70, 95 N. E. tion 10393, Burns 1914, and the court did 305. not err in fixing the rate of interest on the In the case first cited, one of the defendpayments for taxes.
ants named in the complaint was Cornelius No available error having been pointed Laumaree, executor of the estate of John out, the judgment is affirmed.
Whisler, deceased, with the will annexed.
under the will of John Whisler, deceased, for (63 Ind. App. 544)
some five beneficiaries. Neither of said par. ROHRBAUGH v. LEAS. (No. 9566.)
ties was so described in the assignment of (Appellate Court of Indiana, Division No. 1.
errors, but their names appear therein as Jan, 12, 1917.)
“Cornelius Laumaree, executor, Lewis Signs, 1. APPEAL
ERROR @ 722(3)-ASSIGN-trustee." The court said (162 Ind. on page MENT OF ERRORS-NAMES OF PARTIES-AD
139, 67 N. E. 985): MINISTRATOR Where the judgment appealed from was ren
"These two defendants were sued in their dered in favor of an individual, as administra- representative capacity, and not as individuals. tor of the estate of another, deceased, but he
Where persons sue or are sued in a was described in the assignment of errors as ad- representative capacity the rule that the full ministrator only, the appeal would be dismissed, names of the parties shall be set out in the assince the rules of the Appellate Court require signment of errors requires that they shall be that the assignment of errors shall contain the properly. described in that pleading as such repfull names of the parties, and unless the rule is resentatives or fiduciaries. Otherwise the court complied with the appeal will be dismissed, to which the appeal is taken acquires no jurisdicwhile the administrator was a party to the judg- tion over them. The appellee Cornelius Laument only in his representative capacity.
maree, executor of the estate of John Whisler, Error, Cent. Dig. $ 2992; Dec. Dig. Om722(3).) | Character by the description Cornelius Lauma[Ed. Note.—For other cases, see Appeal and deceased, with the will annexed, could not have
been sued and charged in his representative 2. APPEAL AND ERROR 386(1)-TERM TIME ree, executor, without the addition of further
APPEAL-FAILURE TO Fix AND APPROVE averment or designation showing his relation PENALTY ANI SURETY OF BOND AT TERM. to the will or estate of some person. The same
Where final judgment was rendered at the thing is true of the appellee, Lewis Signs, who is December term, 1915, of the trial court, to have described in the assignment of errors simply as a term time appeal, under Burns' Ann. St. 1914, 'trustee'; but how created, or for whom, does § 679, it was necessary that the penalty and not appear. Neither of these persons in his repburety of the appeal bond be fixed and approved | resentative capacity is before the court. As two