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was to provide compensation and the proper | School Supply Co. v. Charles Lewis, 115 N. award with a minimum of legal procedure. E. 103 (this term). We are not called upon The provisions for a review afford oppor- to decide and do not decide the right of a tunity of presenting to the full board all party to appeal from the first award without questions relied upon by the aggrieved party, applying for a review under the statute. and in the main serve the same purpose that Other alleged omissions and irregularities a motion for a new trial serves in a civil ac- mentioned in the motion to dismiss need not tion. At all events it is evident the Legis- be specifically mentioned, as they are in eflature did not contemplate ingrafting on the fect disposed of by our discussion and disprocedure provided by the act all the require position of the other questions presented. ments relating to appeals from judgments in The motion to dismiss the appeal is thereordinary civil suits. This is apparent from fore overruled. the general tenor of the law and by section 55, which provides that:

IBACH, P. J., and DAUSMAN, CALD"The board may make rules not inconsistent WELL, BATMAN, and HOTTEL, JJ., concur. with this act for carrying out the provisions of this act. Processes and procedure under this act shall be as summary and simple as reason

(63 Ind. App. 561) ably may be."


al. V. STEVENS et al. (No. 9578.) As above shown the section authorizing appeals contains the phrase, “under the same (Appellate Court of Indiana, Division No. 2 terms and conditions as govern appeals in or

Jan. 24, 1917.) dinary civil actions," but it is apparent it 1. OFFICERS mm 140 OFFICIAL BONDS ACwas only intended to apply to phrases of the TIONS_REAL AND NOMINAL PARTIES. procedure in appeals under the act, not es. ing that actions upon official bonds and bonds

Under Burns' Ann. St. 1914, § 253, providpecially provided for by the act itself.

payable to the state shall be brought in its No motion for a new trial was contemplat- name on the relation of the parties interested, ed by the Legislature, but on the contrary the relator is the real party in interest, and the the intention to dispense with such motion state is but a nominal party. and to make the procedure simple and direct Dig. 88 243, 244; Dec. Dig. Om 140.)

(Ed. Note.- For other cases, see Officers, Cent. is apparent both from the general tenor of 2. APPEAL AND ERROR E 722(3)-PARTIES the law and the special provisions to which APPEAL BY TOWNSHIP DESIGNATION OF reference has already been made.

APPELLANT-SUFFICIENCY. For the reasons already announced it was viding that each and every township shall be a

Under Burns' Ann. St. 1914, 8 6404, pronot necessary to file a motion to modify or school township with the name school, set aside the final award made by the full township, of county" according to board to entitle the aggrieved party to ap- the name of the township in which the same may peal under the provisions of the law above of the township ex officio 'trustee of the school

be organized, section 6405, making the trustee set out.

township, and section 9362, providing that each The record shows that appellant duly ex- township is a corporation by the name of “ cepted to the original award, and also to the township,

county," by which name it award made by the full board on review, and may contract, sue, and be sued, the pame “Salt

Creek township" imports the civil township then presented its bill of exceptions, con- without the addition of the qualifying word "civtaining the evidence and the rulings of the il,” and an appeal by it will not be dismissed, court and exceptions thereto, which bill was though it was so designated in the assignments duly approved and signed by all the members township” in the proceedings below.

of error, while it was named "Salt Creek civil of the board, and thereafter filed with the

(Ed. Note.-For other cases, see Appeal and secretary of said board and made a part of Error, Cent. Dig. § 2992; Dec. Dig. Om722(3).] the record in this cause by order of the board. 3. APPEAL AND ERROR Om722(3) ASSIGNThe board also duly certifies that the tran MENTS OF ERROR-PRESUMPTION. script contains full, true, and correct copies the assignment of errors as "Salt Creek town

A political corporation being designated in of all papers and entries in said cause re-ship," a conclusive presumption arises that the quired by the præcipe of appellant.

reference is to the civil township. [2] The further contention that the record (Ed. Note.-For other cases, see Appeal and does not show that the exception was taken Error, Cent. Dig. $ 2992; Dec. Dig. Om722(3).) "at the time" is not available, since the ex- 4. SCHOOLS AND SCHOOL DISTRICTS Cm118 ceptions shown are sufficient under the provi


-STATUTE. sions of the act, and would have been suffi

Under Burns' Ann. St. 1914, 8 6405, makcient without showing an exception to the ing the trustee of a township the trustee of a first award as the record sets forth the pro- school township, section 253, providing that acceedings on review by the full board and ap- the state may be brought in the name of the

tions upon official bonds and bonds payable to pellant's exception to the final award from state on the relation of the parties interested, which this appeal was taken. On this record and section 9562, authorizing a civil township the assignment of errors presents alleged "er- to sue in its name, the trustee or the township, rors,of law,” which an aggrieved party is en- of a preceding trustee to recover funds due the

as relator, may prosecute an action on the bond titled to have passed upon by this court un-civil township; and the trustee or the school der section 61, supra. See, also, Columbia | township may prosecute a like action for the

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

benefit of the school township, or in one action, | township of Monroe county, Ind." The judg. either the trustee as relator, or both corpora- ment appealed from is to the effect that the tions as relators, may prosecute such an action plaintiff and relators take nothing by the to recover funds severally due them.

(Ed. Note. For other cases, see Schools and complaint, and that appellees recorer from School Districts, Cent. Dig. $275; Dec. Dig the relators their costs, and, further, that Ow118; Towns, Cent. Dig. § 120; Dec. Dig. | appellee William F. Stevens recover of Salt ww75.)

Creek township the sum of $67.73 and costs. 5. APPEAL AND ERROR Om 323(5)–PARTIESSTATUTE.

[1, 2] It will be observed that in naming L’nder Burns' Ann. St. 1914, 8 675, relating the relators in the assignment of errors the to appeal by part of coparties, where a town word "civil” is omitted in one case and the ship and a school township sued to recover word “Creek" in the other case. On such funds alleged to be due to them, and suffered an adverse judgment and the township appealed

facts appellees state their position as folon a term time appeal, the school township was

lows: not a necessary party in order that judgment "The appeal should be dismissed herein, for might be reversed in behalf of the township. the reason that errors are not assigned by the

[Ed. Note. For other cases, see Appeal and judgment defendants. On the complaint appelError, Cent. Dig. & 1798; Dec. Dig. cm323(5).) lees recovered a judgment against the relators, 6. EVIDENCE O 25(2) JUDICIAL NOTICE

Salt Creek civil township and Salt Creek school SCHOOL TOWNSHIPS.

township of Monroe county, Ind. The assignIn view of Burns' Ann. St. 1914, 8 6404, ment of errors does not name either of said re

lators." organizing every township as a school township for school purposes, the court, on a showing that We proceed to determine whether or not there was in Monroe county a township named such defects in the record necessitates a Salt Creek township, judicially knows that there dismissal. There being in Monroe county a is also in that county a school corporation named Salt Creek school township; but, townships township, the name of which is Salt Creek being laid off, bounded, described, and named township, it follows by virtue of statute by the board of county commissioners, as pre- that there is also in that county another scribed by section 9559, the court does not judicially know that the school township designato corporation exercising dominion over the ed in an assignment of error as “Šalt school same territory as the former, but in a diftownship of Monroe county” is not an existing ferent field of activity, being “Salt. Creek corporation separate and distinct from the “Salt Creek school township of Monroe county.”

school township of Monroe county, Ind.” [Ed. Note.-For_other cases, see Evidence, The first is a civil and the second a school Cent. Dig. § 32; Dec. Dig. 25(2).]

township. Sections 6404 and 6405, Burns

1914; Carmichael v. Lawrence, 47 Ind. 557. Appeal from Circuit Court, Owen County; The trustee of the former is by virtue of Robert W. Miers, Judge.

his office trustee of the latter also. Section Action by the State, on the relation of Salt 6405, supra. A statute provides that actions Creek Civil Township and Salt Creek School upon official bonds and bonds payable to the Township of Monroe County, against Wil- state of Indiana shall be brought in the liam F. Stevens and others. Judgment for

name of the state of Indiana on the rela. defendants, and plaintiffs appeal. Appeal tions of the parties interested. Section 253, of School Township held ineffective, and Burns 1914. In such a case the relator is motion to dismiss appeal overruled.

the real party in interest; the state being Joseph K. Barclay, Wm. M. Louden, Chas. but a nominal party. 1 Works' Practice, B. Waldron, and Batman, Miller & Blair, all § 49, and cases; State v. Wilson, 113 Ind. of Bloomington, and Evan B. Stotsenburg, 501, 15 N. E. 596. The statute by virtue of of New Albany, for appellants. East & which Salt Creek township involved here East, of Bloomington, for appellees. exists as a body politic and corporate pre

scribes that it may sue and be sued by the CALDWELL, J. This action was brought name of “Salt Creek township of Monroe and prosecuted the state on the relation county." Section 9562, Burns 1914. The of the two corporations indicated, to recover corporation existing under such name is the on three several official bonds executed by civil township rather than the school townappellee William F. Stevens as township ship. Baltimore, etc., Co. v. State, etc., 159 trustee. The other appellees were sureties Ind. 510, 65 N. E. 508. As the word "civil” on the bonds. The cause is now before is not one of the words specified by the stat. this court on appellees' motion to dismiss ute as constituting the corporate name of the appeal, conceded to be a term time ap- a township, it should not be included. Howpeal. The facts as presented by appellees ever, as the name "Salt Creek township,” are as follows: In the complaint, and for etc., imports the civil township, the addition the most part in the proceedings below, the of the word "civil” as a qualifying word relators are named as “Salt Creek civil does not in fact qualify or render either township” and “Salt Creek school town- more or less certain the identity of the corship" of Monroe county, Ind. In the as- poration and body politic to which reference signment of error, which is several in form, is made. We are able to determine with relators are named as “Salt Creek township certainty that Salt Creek civil township of Monroe county, Ind.,” and “Salt school named in the proceedings below is the same

corporation as is designated in the assign- , signment of errors. It being conceded or ment of errors as Salt Creek township. established that there is in Monroe county Such is practically the holding in the case a township named Salt Creek township, we last cited. There in a proceeding for a writ know judicially that there is also in that of mandate a township was designated as county i school corporation named Salt “Washington civil township,” etc. In meet-Creek school township. We know that fact ing an objection that there is no such town- judicially because there is a statute to that ship, the Supreme Court say:

effect. Section 6404 and section 6105, Burns, "While not necessarily required in this case, 1914. If we knew judicially that there was nevertheless it was proper for the relator to not in said county a Salt township also, designate himself as trustee of Washington civil township of Daviess county, Ind. The

and consequently a Salt school township, word "civil” might have been omitted without we might perhaps be justified in treating detriment to the petition."

the omission of the work “Creek" in the as(3) Moreover, a political corporation be-signment of errors as a mere clerical error. ing designated in the assignment of errors But townships are laid off, bounded, deas “Salt Creek township,” etc., a conclusive scribed, and named by the board of county presumption arises that the reference is to commissioners, rather than by legislative the civil township. Jarvis v. Robertson, 126 enactment. Section 9559, Burns 1814. It Ind. 281, 26 N. E. 61; Sproat v. State ex follows that we do not know judicially that rel., 182 Ind. 687, 107 N. E. 673. It may be the school township named in the assignsaid in addition that the transcript dis- ment of errors is not an existing corporation closes that in the proceedings below both and body politic separate and distinct from the terms “Salt Creek civil township" and the school corporation in whose behalf as "Salt Creek township” are used to designate relator the action was brought in the trial the civil township. Thus in appellees' ap- court. We are therefore required to hold plication for a change of venue they desig- that the appeal is ineffective as to the school nate the civil township as “Salt Creek town- corporation. ship,” and the judgment in favor of appel It seems that this court erroneously held lee William F. Stevens is entered against in Miller v. Miller, 55 Ind. App. 644, 104 N. the civil township under the latter naine. E. 588, that the court knows judicially that

[4] The civil township, as we have said, within a certain county there is a township is a corporation distinct from the school of a certain name. To the extent indicated township. Each has its separate duties to Miller v. Miller, supra, is disapproved. See perform, and controls and expends its own | Bragg v. Board, etc., 34 Ind. 405; Columfunds. Either the trustee or the civil town- bian, etc., Co. v. Blake, 13 Ind. App. 680, ship as relator may prosecute an action on 42 N. E. 234; Olive v. State, 86 Ala. 88, 5 the bond of a preceding trustee to recover South, 653, 4 L. R. A. 33 and note. funds belonging to or due the civil town. The motion to dismiss the appeal is overship, and likewise the trustee or the school ruled. township may, as relator, prosecute a like action to recover funds due or belonging to

(66 Ind. App. 199) the school township, or in one action either

FEDERAL UNION SURETY CO. et al. v. the trustee as relator or both corporations

SCHLOSSER. (No. 9131.)* as relators may prosecute such an action to recover funds severally due the two cor (Appellate Court of Indiana, Division No. 1. porations. State ex rel. v. Wilson, supra;

Jan. 26, 1917.) Steinmetz v. State, 47 Ind. 465; Ross v. 1. APPEAL AND ERROR Om759 ASSIGNMENT State, 131 Ind. 548, 30 N. E. 702; Inglis v. OF ERROR-BRIEF, WAIVER. State, 61 Ind. 212; Robinson et al. v. State, failing to present it in his brief.

Appellant waived its assignment of error by 60 Ind. 26. [5] This action was brought in behalf of Error, Cent. Dig. $ 3094; Dec. Dig. Om759.)

[Ed. Note.-For other cases, see Appeal and both corporations, each seeking to recover funds alleged to be due it.

2. APPEAL AND ERROR 511(1) - RECORD The judgment

BILL OF EXCEPTIONS-EVIDENCE. was adverse to each. The appeal is a term That the bill of exceptions containing the time appeal. Such being the case, the school evidence was filed either in open court or in the corporation is not a necessary party to the clerk's office, as required by Burns' Ann. St. appeal, in order that the judgment may be will be considered a part of the record.

1914, 8 657, must be shown before the evidence reviewed in behalf of the civil township.

[Ed. Note.-For other cases, see Appeal and The motion to dismiss should therefore be Error, Cent. Dig. $ 2319; Dec. Dig. Om511(1).) overruled. Section 675, Burns, 1914.

3. APPEAL_AND ERBOB Om511(1)-FILING OF [6] Considering briefly the other phase of BILL OF EXCEPTIONS-PROOF. the case, this action was brought and prose Under such provision the filing of the bill cuted in the trial court in behalf of Salt of exceptions may be shown either by an order

book entry, or the clerk's certificate to the tranCreek school township also, while Salt school

script. township, rather than Salt Creek school

(Ed. Note.-For other cases, see Appeal and township, is named as a relator in the as- Error, Cent. Dig. $ 2319; Dec. Dig. Om511(1).)

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

*Rehearing denied, 116 N. E. 759. Transfer denied.

4. APPEAL AND ERROR W511(1)-BILL OF EX., Henley & Baker, of Indianapolis, E. C.

Martindale, of Plymouth, Henley, Fenton & The clerk's amended certificate to a transcript Joseph, of Indianapolis, for appellants. Harcertifying that the original bill of exceptions containing the evidence in the cause was filed in the ley A. Logan, of Plymouth, for appellee. clerk's office on or about a certain day, and that on information and belief it had been signed by the trial judge, but that there was no memoran

BATMAN, J. This was an action brought da of the filing in his office, and that he had no by appellee against appellants for the breach independent recollection thereof, was not a suffi- of a contract between appellee and appelcient showing of the filing of such bill of exceplant Wallace for the construction of a dwelltions.

[Ed. Note.-For other cases, see Appeal and ing house, and on a bond executed by appelError, Cent. Dig. S 2319; Dec. Dig. Om 511(1).] lant Wallace as principal and appellant com5. APPEAL AND ERROR 511(1)-BILL OF Ex- pany as surety, given to secure the performCEPTIONS-FILING—"CERTIFICATE."

ance of such contract. The complaint is in Under Burns' Ann. St. 1914, § 657, requir- one paragraph, on which issues were duly ing a proper showing that the bill of exceptions joined. A trial was had by a jury, which recontaining the evidence was filed either in open court or in the clerk's office before the evidence turned a verdict against appellants for the will be considered a part of the record, the clerk | sum of $2,200, on which judgment was renin order to certify must have a proper knowl- dered. Appellants filed tbeir motion for a edge of the facts, as a "certificate" is a writing by which an officer or other person bears testi- new trial, which was overruled, and the mony that a fact has or has not taken place, a proper exception reserved. Appellant Fedwritten testimony of the truth of any fact; and eral Union Surety Company (hereafter desigwhile an order book entry is not imperative nated as the company) appealed, and assignsince such fact may be shown by the clerk's cer- ed errors as follows: First, that the court tificate, such an entry is the better practice.

[Ed. Note. For other cases, see Appeal and erred in sustaining appellee, Schlosser's, deError, Cent. Dig. 2319; Dec. Dig. Ow511(1). murrer to the amended third paragraph of

For other definitions, see Words and Phrases, appellant Federal Union Surety Company's First and Second Series, Certificate.]

answer. Second, that the court erred in over. 6. TRIAL Om 328_VERDICT-EFFECT-PARTIES. ruling appellant Federal Union Surety Com

In an action for breach of a contract be- pany's motion for a new trial. Appellant tween plaintiff and the individual defendant for Wallace not having assigned errors presents the construction of a house, and upon a bond executed by such defendant as principal and by a

no question to this court for consideration. surety company to secure the performance of the [1, 2] Appellant company not only impliedcontract, where the jury were given a form of ly waives its first assignment of error by verdict for the plaintiff against the individual defendant, stating the amount of damages, and failing to present the same in its brief, but for a verdict for plaintiff against the defendant expressly does so by a statement under the surety with an assessment of damages, a verdict, head “Proposition," which leaves the action which, after striking out certain parts of the of the court in overruling the motion for a form and filing in certain blanks, found for plaintiff against the defendant surety company new trial, as the only error for the considand assessing damages, was not an implied find-eration of this court. Appellee contends that ing in favor of the individual defendant, or that the evidence is not in the record, as there is there had been no default so as to entitle the no proper showing that the bill of exceptions defendant surety to judgment.

[Ed. Note.-- For other cases, see Trial, Cent. containing the evidence was filed either in Dig. 88 771-773; Dec. Dig. Cm328.]

open court or in the clerk's office, as required 7. TRIAL 328-INCOMPLETE VERDICT-PRO

by section 657, Burns 1914. Such fact must CEDURE.

be shown before the evidence will be considSuch verdict being either incomplete and ered a part of the record. Elrod v. Purlee therefore defective because silent as to the indi- (1905) 165 Ind. 239, 73 N. E. 589, 74 N. E. vidual defendant, or a nullity because contradictory if silence as to him was to be taken as a

1085; McCormick Harvester Co. V. Smith finding in his favor, no judgment could be ren- (1899) 21 Ind. App. 617, 52 N. E. 1000. dered thereon.

[3] It has been repeatedly held that the fil. [Ed. Note.-For other cases, see Trial, Cent. ing of the bill of exceptions may be shown, Dig. 88 771-773; Dec. Dig. Om328.]

either by an order book entry, or the certifi8. TRIAL Om339(3)— VERDICT-AMENDMENT.

cate of the clerk to the transcript. McA defective verdict may be amended at any time before the discharge of the jury, and it is Cormick Harvester Co. v. Smith, supra; proper to require a jury to return to the jury Ladoga Can. Co. v. Corydon Can. Co. (1912) room under proper instructions where the verdict 52 Ind. App. 23, 98 N. E. 819. Appellants does not respond to all the issues submitted.

have not pointed out any order book entry [Ed. Note. For other cases, see Trial, Cent. showing such filing, and we therefore asDig. $ 793; Dec. Dig. 339(3).]

sume there is none. Appeal from Circuit Court, Marshall [4, 5] The question then arises, Is such County; Harry Bernetha, Judge.

filing shown in any other recognized manner? Action by Samuel Schlosser against the Appellants evidently rely on the clerk’s cerFederal Union Surety Company and William tificate to the transcript to show such fact. L. Wallace. Judgment for plaintiff, motion We find two certificates by the clerk; one, for new trial overruled, and defendants ap- evidently the original certificate, bearing date peal. Affirmed.

of July 31, 1914, and another, bearing date For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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of November 3, 1915, purporting to be an would permit it, and keep within the truth of amended certificate, made in pursuance of an the statement made. In order for the clerk order of this court of October 28, 1915. The to certify, he must have a proper knowledge first of said certificates clearly does not show of the facts, and while an order book entry is the filing of such bill of exceptions, as the not imperative, since such fact may be shown statute requires, and the second likewise fails by the clerk's certificate, still such an entry to make a sufficient showing in that re- would guard against any lapse of memory gard. In view of the presence of the second and possible dispute as to the facts, and is certificate, we assume that appellants do not no doubt the better practice. contend that said first certificate makes

The lack of knowledge on the part of the a sufficient showing as to the filing of such bill of exceptions. We expressly hold that clerk, as to the filing of such bill of excep it does not, and now direct our attention to tions, may have appeared in the proceeding the contents of the second certificate, dated to obtain the writ of certiorari, in pursuance November 3, 1915. We find that this certifi- of which the second or amended certificate

was filed, but in granting such writ this cate contains the following recital as to the

court did not assume to pass upon the sufifiling of such bill of exceptions:

“And I do hereby further certify that said ciency of such knowledge, but sought only to original bill of exceptions containing the evi- give appellants every reasonable opportunity dence in said cause was filed in my office on or to bring all appropriate matter into the recabout the 3d day of September, 1914, and after ord, so that the appeal might be determined the same was signed on the 3d day of September, on its merits, if possible. We therefore con1914, by the judge who tried said cause, as I am informed and believe through such information; clude that the evidence is not in the record, but there is no memoranda of the filing in my and any questions depending on it for de office nor have I any independent recollection termination cannot be considered. thereof."

The objection made by appellee that the It will be observed that the clerk making transcript of the clerk is not in the record the certificate expressly states in substance has been met by an amendment, subsequentthat there is no memorandum of such filing ly made under authority of this court, and in his office; that he has no independent need not now be considered. recollection of such filing being made; and

[6] The only question remaining for our that he makes the statements he does with consideration is the action of the court in reference thereto, solely on belief, based on refusing to receive the first verdict returned such information. We cannot hold that such by the jury, in giving instruction No. 15 on a certificate is a sufficient showing as to the its own motion, causing the jury to retire filing of such bill of exceptions. A legal for further deliberation and receiving the writer has defined a certificate to be:

second verdict. It appears that the jury on "A writing by which an officer or other person its retirement, after having been originally bears testimony that a fact has or has not taken place. A written testimony of the truth of any instructed, was furnished three forms of verfact." Cyc, 728.

dict, among them being one ding as fol

lows: The evident purpose of requiring a certifcate in this connection is to furnish the court plaintiff, Schlosser, against the defendant Wal;

“We, the jury in the above cause, find for the satisfactory proof of the verity of the record lace, and assess plaintiff's damages against said entries and the identity of the bill of excep-Wallace at $ and we further find for the tions in such transcript, and of the facts re plaintiff against the defendant the Federal cited in the certificate itself.

Union Surety Company, and assess plaintiff's

damages against said defendant at $The identity of the whole record depends upon the certificate of the clerk on appeal, The jury in making its first verdict evi. and can it be said that such an important dently used the above form, after striking matter, upon which the rights of litigants out certain parts thereof, and filling in blank depend, can be based on mere hearsay evi- space with the words "twenty-two hundred,” dence, as recited in the certificate under con so that such first verdict when returned sideration? Such evidence could not be re- read as follows: ceived in the trial court to establish any fact, “We, the jury in the above cause, find for the and certainly ought not be received in this plaintiff, Schlosser, and we further find against court to establish either the identity or the the defendant the federal Union Surety Com

pany, and assess his damages at twenty-two bunverity of the record, or any steps taken in dred dollars." perfecting the appeal. To do so would in

The court refused to receive such verdict, effect allow a clerk, who confessedly has no recollection in the matter, and no memo- | No. 15 directed it to retire for further de

and after giving to the jury said instruction randum in his office by which to refresh liberation. The jury afterwards returned the his recollection, to hold a sort of court of following verdict on which judgment was inquiry, hear such evidence as he may de rendered, to wit: sire, in the absence of one or both of the

“We, the jury in the above cause, find for the parties in interest, and then certify to such plaintiff, Schlosser, against defendant William conclusion as he might be able to reach L. Wallace, and assess plaintiff's damages at from such investigation. The mere

twenty-two hundred dollars, and we further find

against the defendant the Federal Union Surety tion of such proceeding is sufficient to con- Company. as Surety in the sum of twenty-two demn it, and yet the certificate in question | hundred dollars."

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