It is also contended on behalf of appellant | have been so kept as to impart notice to that appellee and his predecessors in title were bound by the notice of the record of the town board and were thereby informed of appellant's ownership of the bonds and assessment in favor of the contractor, O'Brien. It was shown by the town clerk that he had made search of the office and examined the records from 1901 to 1905 and found no notice or assignment relating to O'Brien's assignment to appellant.

There was other testimony to show that a notice of such assignment had been left in the office of the town clerk in January 1902, and it was shown that on April 26, 1909, Jacob Briles, town clerk, had furnished an officer of appellant a copy of a notice,, which copy was admitted in evidence, and is in substance as follows:

"To the Board of Trustees, Clerk, and Treasurer

of the Town of Fairmount: "Patrick T. O'Brien has assigned and transferred to the undersigned all money due and coming to him from said town in payment for improvements (which were duly identified), and all payments therefore are due the undersigned as evidenced by the written assignment of said O'Brien executed and delivered to said bank March 4, 1901."

The notice was dated January 23, 1902, and was signed by "The National Exchange Bank of Anderson, Indiana, by John L. Forkner, Cashier."

those who examine them that are binding. Whatever constructive notice is imparted by such records must be given effect, even though in particular instances hardships result therefrom. Section 3324, R. S. 1881; section 4346, Burns 1901; section 9001, Burns 1914; Byer v. Town of New Castle, 124 Ind. 86-88, 24 N. E. 578; State ex rel. v. Curry, 134 Ind. 133-137, 33 N. E. 685; 21 Am. & Eng. Ency. Law, p. 8.

But, accepting the findings of the court as to the possession of the bond, the notice of the assignment, and the assignment itself as above indicated, we must still determine the legal effect of the undisputed portions of the record of the town board in this case.

Appellant contends that the record of the proceedings for the improvement of the street, the report of the assessments, the waiver of appellee's predecessor in title, the issuance of the bonds, and the absence of a record showing payment or satisfaction of the assessment affords sufficient constructive notice to appellees to be binding upon them and to warrant the foreclosure of the lien upon the real estate in controversy. The proceedings for the improvement of the street were under the act of 1889, being section 4288 et seq. of Burns' Statutes 1901.

Section 4294, Burns 1901, provides, among other things, for a lien upon all property assessed for the improvement, and that if the owner of any lot so assessed shall "promise and agree, in writing, to be filed with the clerk of such city or town and to be spread of record by him in consideration of the right to pay his * * assessment, *

in installments, that he will not make any
objections *
and will pay the same
* he shall have the benefit of paying

also that the proceeds from such assessments shall constitute a special fund for the payment of the costs of such street improvement "and the bonds and certificates hereinafter mentioned.",

There was no evidence that the same was filed as a paper in the proceedings, but, on the contrary, the evidence of the clerk shows that no notice or assignment was ever filed or made a part of the record or papers in the proceedings for the improvement of the street and the issuance of the bonds in controversy. [3] We find no evidence that indicates the written assignment of O'Brien to appellant, | * or a copy thereof, was ever left at the office said assessments in ten annual installments"; of the clerk or town board. But if, as appellant contends, there is evidence tending to prove such fact, it is by no means conclusive, and the finding of the court to the contrary is supported by sufficient evidence and binding on this court. Indeed, the undisputed evidence seems to show that no such instrument was ever filed as a paper in the proceedings, or in any way made a matter of record, in such a way as to be notice to a purchaser of the real estate at the time of the several conveyances of the lot subsequent to the making of the assessment. It therefore appears that the court was warranted in finding that neither the assignment nor a copy thereof was left at the office of the town clerk.

[4] The proceeding of municipal corporations in street improvements are required by law to be duly recorded, and they are public records open to inspection. Persons who acquire real estate incumbered by assessments evidenced by such records are bound by the constructive notice given by such records when duly kept. But it is only records which the law requires to be kept and which in fact

Section 4296 of the statute, supra, provides for the issuance of bonds to cover the assessments for which waivers have been filed as above indicated, and that "all such bonds shall be an equal lien upon the property so assessed without priority of one over another"; also that the bonds shall bear the name of the street for the improvement of which they are issued, “and shall be payable, in equal installments, out of the special fund in 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 years from date, and such bonds, when issued, shall transfer to the owner thereof all the right and interest of such city or incorporated town in and to such assessments and liens thereby created, with full power to enforce the collection thereof by foreclosure or otherwise."

*

*

It is also provided by section 4294 of the statute, supra, that when payment is made upon any such assessment it is the "duty of

the treasurer, contractor or owner of the as- [6] Where bonds are payable to a named sessments, bonds, or certificates or install-person or bearer, the record is notice to ments of assessments, * * receiving such every one that such obligation may rightfully payment to enter upon the proper record the be owned and in the possession of some perreceipt of such money, and such receipt shall son other than the one so named without any be a discharge of the lien of such assessment assignment or record of transfer. Melton * * and upon the payment of any bonds v. Gibson, 97 Ind. 158-160; Paulman v. Clayor certificates" so issued under the provisions comb, 75 Ind. 64-67. of the statute the same "shall be surrendered to and canceled by the treasurer" of the municipality which issued such bonds. The same section provides also that the assessments for which bonds have been issued shall be collected in the same way taxes are collected, or in such way as the common council or board of trustees may provide by ordinance. Where bonds have been issued they may be, and frequently are, in the hands of different persons. By authority of the statute or of an ordinance passed as therein provided, assessments are usually and properly paid to the treasurer from whom the bondholder receives payment on surrender of the bond held by him.

It is not shown that O'Brien delivered the original of the bond in suit to Mrs. Gauntt when he obtained the deed for the lot, or that it was then or at any time surrendered to the treasurer of the town board, or what in fact became of the bond at or prior to the time of that transaction, though long afterwards there was a showing made that the bond was lost. There is evidence tending to show that O'Brien assigned the entire assessment roll and his right to and ownership of any bonds issued upon such assessment to the bank on March 11, 1901, and that the bank served a notice on the town board on January 23, 1902, showing that such assignment had been executed. The undisputed record shows that the assessments were approved in March, 1902; that the bonds were ordered issued in April, and were issued in May, 1902. The deed to O'Brien was not executed until November 10, 1902, and was recorded the next day. It shows a consideration of $27.50, and recites that the grantors guaranteed that they had placed no incumbrance on the lot, and that there was none on the same except taxes.

The particular bond in controversy bore the same relation to the real estate involved in this suit that it bore to all the other real estate against which assessments had been levied, and which assessments were the basis of the bond issue of which the one in contro versy happened to be the last of the series. The aggregate amount of the issue was $5,904.95, and No. 47 was for $500. The assessment against appellee's property amounted to $350.28.

[5] The question of merger of the lien in the title of O'Brien is urged to support the judgment. It appears without dispute that .bond 47 was the last of the series, and that all other bonds issued had been paid and satisfied. If it also appeared that O'Brien, when he obtained the deed from Mrs. Gauntt, was the actual owner of the bond 47, had the same in his possession, and agreed to receipt the record and surrender the bond for cancellation as required by the statute, all the other assessments being satisfied, and the other bonds paid, it would be reasonable to contend that the lien on the lot in suit was merged in the title acquired by O'Brien, and that appellant could not now foreclose the lien against the owners of the real estate who acquired title from Mrs. Gauntt. Swatts v. Bowen, 141 Ind. 322, 325, 40 N. E. 1057; Chase v. Van Meter, 140 Ind. 321, 333, 39 N. E. 455; Coburn v. Stephens, 137 Ind. 683, 687, 36 N. E. 132, 45 Am. St. Rep. 218; Artz [7] The law compelled Mrs. Gauntt and v. Yeager, 30 Ind. App. 677, 681, 66 N. E. appellees to know that the particular bond 917; Lagrange v. Greer-Wilkinson Lumber was not issued to cover the assessment on Co., 59 Ind. App. 488, 108 N. E. 373. But it the real estate conveyed except as the amount appears from the record that O'Brien was of such assessment was a part of the agnot in fact the owner of either the assess-gregate sum for which the bonds were issued. ment or the bond in suit, and that Mrs. The owner of any lot or tract could free the Gauntt relied solely upon his representations same from the lien of the assessment by as to the ownership of the assessment and paying the full amount of the assessment bond, and that his representations were un- against the same, with interest. The propertrue. The lien for the total bond issue cover- ty of appellees was not bound primarily for ed the property of all the owners who signed the payment of this particular bond, and waivers, and the lien of the assessments for the basis of the suit was the unsatisfied aswhich such bonds were issued are by the sessment. The bond was only incidentally statute declared equal upon the property as- involved. It represented the outstanding sessed without priority of one of such bonds unpaid portion of the assessments for which over any other of such issue. To discharge the series of bonds had been issued. The such lien against any particular tract or lot measure of liability was primarily the unsatthere must be payment in full of the assess-isfied assessment against the lot in suit. The ment against the same to the party lawfully record showed the proceedings for the imentitled to receive the same as provided in provement of the street, the making of the

issuance of the bonds payable to O'Brien or bearer, and that as to the lot in suit such assessment was unsatisfied.

(63 Ind. App. 567) STIMSON v. KRUEGER. (No. 9143.) (Appellate Court of Indiana, Division No. 1. Jan. 25, 1917.)

ERS' LIABILITY ACT
SATED.

INJURIES COMPEN

The Employers' Liability Act (Burns' Ann. St. 1914, § 8020a et seq.) does not authorize reCovery by the employé for injuries resulting from his own independent orders and directions, whether given negligently or otherwise.

[8] Appellees are charged with constructive notice of all the facts shown by such record. Those facts were sufficient to put appel-1. MASTER AND SERVANT 228(1)—EMPLOYlees on inquiry, and thereby they became chargeable with such facts as an ordinarily diligent search and investigation would have disclosed. Hollenbeck v. Woodford, 13 Ind. App. 113, 41 N. E. 348; Oglebay v. Todd, 166 Ind. 250-255, 76 N. E. 238; Reagan v. First N. Bank, 157 Ind. 623-667, 61 N. E. 575, 62 N. E. 701; Martin v. Cauble, 72 Ind. 67-73; Mettart v. Allen, 139 Ind. 645-649, 39 N. E. 239.

From this it follows that as against appellant appellees hold the lot in controversy subject to the lien of the unsatisfied assessment thereon.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 670; Dec. Dig. 228(1).] 2. MASTER AND SERVANT 261(2)-INJURIES TO SERVANT-PLEADING.

A servant's complaint alleging that he was logs preparatory to piling them, and that while ordered by the foreman to put chains around he was doing so a fellow servant who was directed to haul the logs negligently and without warning started a team hitched to the chain and showing that the injured servant ordered the caused injuries, is not defective on its face as driver to start.

The fellow-servant rule is eliminated in cas

However plausible it may have seemed, Mrs. Gauntt was not in law justified in accepting the statements of O'Brien in the face [Ed. Note.-For other cases, see Master and of the records aforesaid. She and her suc- Servant, Cent. Dig. § 851; Dec. Dig. 261(2).] cessors in title were informed by such rec-3. MASTER AND SERVANT 204(1)—INJURIES ord of the unsatisfied assessment and that TO SERVANT-ACTS OF FELLOW SERVANTS. the bonds payable to bearer were enforceable against the property to the extent of the assessment against the same by the bona fide owner of such assessment and the rightful holder of any unpaid bond. Appellant's as-4. signment of the assessment preceded the issuance of the bonds and the execution of the deed to O'Brien.

es brought within the provisions of the Employ

ers' Liability Act.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. ~204(1).] MASTER AND SERVANT 259(4)—INJURIES

TO SERVANT-PLEADING.

A servant's complaint alleging that he was ordered by the foreman to put chains around logs preparatory to piling them, and that while he was doing so a fellow servant who was direct

ing started a team hitched to the chain and
caused injuries, is sufficient to bring the case
within the Employers' Liability Act.
[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. § 840; Dec. Dig.
259(4).]

[9] The record of the deed did not give to appellant notice of any fact that would de-ed to haul the logs negligently and without warnfeat its right to foreclose the lien of the assessment if it was otherwise entitled so to do. This suit was begun on October 16, 1913, and the bonds were issued in May 1902, with the last installment to run ten years from date before maturity. There is no provision in the statutes applicable to this case by which all the installments become due on default

in payment of any one or more of such

installments.

[10] Appellees have pleaded the five, six, and ten year statute of limitations, as a complete defense to the whole cause of action. The dates above given show that neither of such statutes is a bar to the cause of action stated in the complaint.

For reasons already announced, the decision of the court is not sustained by sufficient evidence, and is also contrary to law. The motion for a new trial should therefore have been sustained.

The judgment is reversed, with instructions to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion. Judgment reversed.

IBACH, P. J., and DAUSMAN, CALDWELL, BATMAN, and HOTTEL, JJ., concur.

5. APPEAL AND ERROR 1001(3)
EVIDENCE.

SCOPE

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3934; Dec. Dig. 1001(3).] 6. APPEAL AND ERROR 525(2) RECORD-SUFFICIENCY-INSTRUCTIONS. ing all instructions requested and all those given Under Burns' Ann. St. 1914, § 561, requirand refused to be filed, they must, to be so brought into the record, be filed, and there must be an entry so showing.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2377; Dec. Dig. 7. APPEAL AND ERROR 525(1) RECORD-SUFFICIENCY-INSTRUCTIONS. Where the record shows that time was given to file a bill of exceptions, but discloses no such bill, instructions objected to, or refusal of others requested, are not brought into the record, under Burns' Ann. St. 1914, § 660, requiring that when the record does not otherwise show the ground of objection, a bill of exceptions shall be taken and filed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2376; Dec. Dig. 525(1).]

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

Appeal from Circuit Court, Pike County; | being unloaded from cars upon said skidway, John L. Butz, Judge. and appellee "was directed by said foreman to put chains around said logs, and when said chains were around said logs the said Collins was directed to

Action by Louis Krueger against Jacob V. Stimson. Judgment for plaintiff, and defendant appeals. Affirmed.

R. W. Armstrong, of Huntingburg, for appellant. R. M. Milburn, M. A. Sweeney, and Bomar Traylor, all of Jasper, for appellee.

HOTTEL, J. This is an appeal from a judgment in appellee's favor, in an action brought by him to recover for personal injuries alleged to have been caused by ap

pellant's negligence.

*

*

drive up said team and pile said logs upon one another with said team," and while appellee was thus engaged in putting a chain around one of said logs upon said skidway, which chain was attached to a double tree to

which two horses of said defendant were hitched, said Collins carelessly and negliwarning to appellee. That appellee was at gently started up said team without any said time standing in front of said logs and between said log and the pile of logs upon which said log was to be placed, and the team was on the other side of said pile. That said log to which the chain was being

The issues of fact were tendered by a complaint in one paragraph, and a general denial. A demurrer to the complaint for want of facts, a motion for judgment on the answers to interrogatories, and a motion for new trial, filed by appellant, were each over-attached was about five feet from said pile ruled, and exceptions properly saved. Each of said rulings is assigned as error in this

court, and relied on for reversal.

of logs upon which it was to be placed, and when said team was so carelessly started by Collins and said log began to move appellee immediately began to halloo to Collins to stop the team, and at the same time attempted to escape by jumping and trying to climb over said log, but was in some way caught and rolled along with said log to said pile when one arm and leg were caught between said log and said pile of logs and broken and crushed, etc. That said injuries were caused wholly by the carelessness and negli

The grounds upon which the sufficiency of the complaint is challenged, as set out in the memorandum accompanying said demurrer, are, in substance, as follows: (1) It appears on the face of the complaint that the cause of action therein stated is predicated on the act of the Legislature, approved March 2, 1911, commonly known as the "Employers' Liability Act," and such act has no application to the cause of action described in ap-gence of appellant's employé in starting up pellee's complaint. Section 8020a et seq., Burns 1914. (2) The complaint fails to show any duty owed by appellant to appellee which was neglected. (3) The complaint fails to show any order given by appellant to appellee that was negligently given. (4) The complaint shows on its face that the negligence, if any, responsible for the injury was the negligence of a fellow servant.

said team without any warning to appellee while he (appellee) was in said dangerous and precarious position. That when he received his injuries, appellee was in the line of his duty, obeying the orders and directions of appellant's said foreman and vice principal, to whose orders and directions appellee was obliged to conform.

[1] If we correctly interpret appellant's brief, the first three grounds of his objection to the complaint set out in his memorandum, indicated supra, are based upon a contention that the complaint shows upon its face that the orders and directions under which Collins started the team and caused the log in question to be moved by appellant were orders and directions given by appellee himself. Of course the statute under which the action was brought does not authorize recovery by the employé for injuries resulting from his own independent orders and di

The averments of the complaint affecting said questions are, in substance, as follows: Appellant owns and operates a sawmill in Huntingburg, Dubois county, Ind., and is engaged in the purchase and sale of timber, logs and lumber, and in such mill saws and cuts lumber of all kinds. That in the operation of his said mill and business he employs more than 5 persons, to wit, 50 men. That logs purchased and delivered to appellant's said mill are brought in on wagons and trains, and are unloaded in said millyard by appellant's employés in the following man-rections whether given negligently or otherner, viz.: They are rolled off of the wagons and freight cars on a skidway. A chain is then attached to said logs, and a team hitched to the other end of the chain pulls and rolls said logs to the place and position de sired, piling them one upon another, six or seven logs high. On October 9, 1912, appellee had been employed by appellant about one year, and on said day was directed by appellant's foreman and vice principal, one Harry Maley, to go into the yard and help

wise, and if the complaint in fact shows that appellee gave the order and direction to Collins to start the team, and that such order and direction was the proximate cause of his injury, the demurrer thereto should have been sustained. However, we do not so interpret such averments, nor do we think them fairly susceptible of such interpretation.

[2] While the language of the first part of the italicized averment, supra, is some