[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2627; Dec. Dig. 1032(1).] Compelling accused to testify that he did not 2. CRIMINAL LAW 1178-APPEAL-BRIEFS testify at a previous hearing of the case is reversible error, since evidence of his failure so FAILURE TO STATE POINTS to testify is inadmissible.

for the purpose of receiving professional ad-1ed to this and the Appellate Court as to envice.

able the several members of either tribunal [Ed. Note. For other cases, see Witnesses, readily to understand the questions which Cent. Dig. 88 747, 748, 753; Dec. Dig. 198(1).]

Appellant also moved to strike out the anConceding that the above rules may be in-swer for the same reasons which was likevoked in a proper instance, it must also be wise overruled by the court. The court's rulborne in mind that their purpose is to guide ing was based upon the right to show motive the preparation of briefs which are present-in doing the act. As seen in the case of Si

berry v. State, supra, there is no question of motive in issue in such a case as this.

S. K. Ruick, of Indianapolis, for appellant. E. B. Stotsenburg, Atty. Gen., and Alvah J. Rucker, Asst. Atty. Gen., for the State.

[6, 7] The proof of other crimes or occurrences of similar nature is only permissible in the trial of a criminal charge in those cas- ERWIN, J. Appellant was tried and cones where the act constituting the crime un-victed, on a charge of operating a blind tiger der investigation has been clearly establish- in the city of Indianapolis. Trial was had by ed and the motive, intent, or guilty knowl- the court, without the intervention of a jury. edge of the defendant is in issue. Kahn v. The only question presented by the assignState (1914) 182 Ind. 1, 105 N. E. 385. The ment of errors is the sufficiency of the evistate will not be permitted to depart from dence to sustain the finding of the court. the issue and introduce evidence of extrane- We have examined all the evidence in the ous misconduct that has no natural connec- case as shown by the bill of exceptions, and tion with the pending charge, and which is are of the opinion, without setting out a calculated to prejudice the accused in his de- synopsis of it, that there is sufficient evifense. Rock v. State (1915) 110 N. E. 212, dence to warrant the court in finding appeland cases cited. The trial court, therefore, lant guilty as charged. A part of the evicommitted error in this and many other rul- dence was testimony, given by the police offiings made involving the same question. cer who arrested appellant, that appellant said to him, in effect, after his arrest, that it was necessary for him (appellant) to do some business unlawfully, for the reason that he could not make any money and confine himself to legitimate business. Other evidence was introduced, during the progress of the trial, which, independent of the item above referred to, was, in the opinion of this court, sufficient to authorize the court trying the case to infer that appellant had violated the statute under which he was being prosecuted.

[8] Where improper evidence has been interposed, it will be presumed to be harmful, unless the contrary is made to appear. Rock v. State, supra. By reason of the error in admitting evidence of other quarrels and transactions of similar and different nature not connected with the charge being tried, the judgment should be reversed.

Judgment affirmed.

YORK et al. v. COOPER.

(63 Ind. App. 119) (No. 9088.)

[9] Appellant contends that the court erred in compelling the appellant to testify that he did not testify on a previous hearing of the case. This evidence must have been introduced for the purpose of showing the defendant's admission that he did draw a pistol upon the person of John A. Weidenbach. Assuming that the appellant might have been a witness, and testified in his own behalf in (Appellate Court of Indiana, Division No. 2. the former hearing at Richmond, still he was not bound to do so; and the fact that he did not should not have been received as evidence of his guilt. The court committed reversible error in overruling appellant's objection to the question. Broyles v. State (1874) 47 Ind. 251.

[10] Appellant also objected to the state asking him concerning communications to his attorney and his attorney to him. A party cannot be compelled to testify to a communication made by him to his attorney for the purpose of receiving professional advice. The court erred in overruling appellant's objections to such questions. Aspy v. Botkins (1902) 160 Ind. 170, and cases cited on page 174, 66 N. E. 462. For the reasons above mentioned the judgment should be reversed, which is accordingly ordered, with instructions to the court below to sustain appellant's motion for a new trial.

(185 Ind. 598)

ROSE v. STATE. (No. 23106.) (Supreme Court of Indiana. Nov. 24, 1916.) Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Nov. 26, 1916.)

1. TRIAL 400(2)-PROCEEDINGS-MOTIONS. Motions to modify, strike out, or add to special findings, are not recognized by the Code of Procedure but the remedy is by motion for

new trial.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 950; Dec. Dig. 400(2).]

2. APPEAL AND ERROR 1078(6)—SCOPE RECORD-SUFFICIENCY.

No question is presented as to overruling motion for new trial where there is no attempt to comply with Court Rule 22, cl. 5 (55 N. Ê. vi), requiring the brief to contain a condensed record of the evidence and argument.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4261; Dec. Dig. 1078(6).]

Appeal from Circuit Court, Starke County; Francis J. Vurpillat, Judge.

Suit by John Cooper against Miles N. York and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Guy R. York, of Peru, Charles H. Peters, of Knox, and John F. Lawrence, of Peru, for appellants. Burson & Burson, of Winamac, for appellee.

IBACH, J. Appellee brought this action against appellants to quiet title and fore

Earl Rose was convicted of operating a close a lien on certain real estate. The comblind tiger, and he appeals. Affirmed, plaint is in two paragraphs; the first be

GROUNDS-WANT OF JURISDICTION.

ing in the ordinary form of a complaint to [ 2. APPEAL AND ERROR 782-DISMISSALquiet title, and the second sought to reform a certain contract and to foreclose a lien created thereby. There was a trial by the court, and on request a special finding of facts, with conclusions of law stated thereon, filed, the court concluding as a matter of law that appellee was entitled to a reformation of the contract and a foreclosure of

the same as a purchase-money lien. Judg

ment followed the conclusions of law.

The errors assigned and relied on for reversal are: (1) Overruling appellants' motion to modify the court's findings of facts by striking out special finding No. 3. (2) Overruling appellants' motion to modify the court's special findings of facts, by striking out special finding No. 4. (3) Overruling appellants' motion for a new trial.

[1] No question is presented by either the first or second assigned errors. Motions to modify, strike out, or add to the special findings are not recognized by our Code of Procedure. The sole remedy is furnished by a motion for a new trial. Chicago, etc., R. Co. v. State ex rel., 159 Ind. 237, 241, 64 N. E. 860, and cases cited; Citizens' Trust Co. v. National, etc., Supply Co., 178 Ind. 167, 177, 98 N. E. 865, 41 L. R. A. (N. S.) 695.

[2] As to the third assigned error, there has been no effort on the part of appellants to comply with clause 5, Rule 22 (55 N. E. vi), and without searching the record this court would be unable to determine what questions were sought to be presented by the motion for new trial, or whether in fact such a motion was filed or ruled on. No question is therefore presented by this assignment. Reeves & Co. v. Gillette, 47 Ind. App. 221, 223, 94 N. E. 242. Judgment affirmed.

(64 Ind. App. 649)

appellate tribunal is without jurisdiction, it be
When it appears from the record that the
comes its duty on motion, on suggestion of
counsel, or on its own motion, to proceed no
further except to dismiss the appeal.
Error, Cent. Dig. §§ 3123, 3124; Dec. Dig. ~
[Ed. Note.-For other cases, see Appeal and
782.]

Appeal from Circuit Court, Morgan Coun

ty; Nathan A. Whitaker, Judge.

Claim by the First National Bank of Martinsville against Mary K. Wilt and others. From a judgment for plaintiff, defendants appeal. Dismissed.

Ayres & Ayres, of Indianapolis, and W. S. Shirley and Homer L. McGinnis, both of Martinsville, for appellants. Eph. Inman, of Indianapolis, and Bain & Branch, of Martinsville, for appellee.

FELT, J. This suit was begun by appellee by filing a claim in the Morgan circuit court against the estate of James F. Carney, deceased, and others, to collect the amount due on a certain promissory note executed by the decedent as principal and by one Andrew J. Watson as surety, and payable to appellee. The case was tried on an amended claim against said estate of which Samuel M. Guthridge was administrator. Other persons were joined as defendants as follows: Andrew J. Watson, surety on the note and to whom the decedent executed two mortgages on real estate to indemnify him against loss as such surety and therein expressly agreeing to pay the debt secured, and Etta D. Carney, widow of the decedent, Elsie A. and Willard L. Kinneman, alleged owners of the mortgaged real estate, and Mary K. Wilt, the holder of a mortgage which she contended was senior to the indemnifying mortgage executed to Watson. Appellee, the claimant, sought an allowance against the estate and a personal judgment against Watson for

WILT et al. v. FIRST NAT. BANK OF MAR- the amount of the note, interest, and attor

TINSVILLE. (No. 9155.)*

(Appellate Court of Indiana. Nov. 23, 1916.) 1. EXECUTORS AND ADMINISTRATORS 256(5)

CLAIMS APPEAL DISMISSAL.

TIME DELAY

Under Burns' Ann. St. 1914, §§ 2977-2980, relating to appeals from decisions connected with decedents' estates, requiring bond to be filed within 30 days from the decision and the transcript to be filed within 90 days after filing the bond, where an action on the note of a decedent signed by one of the defendants as surety, and to foreclose an indemnity mortgage given by decedent to the surety, could not be maintained except by filing claim against the pending estate of the deceased maker of the note, and the transcript on appeal was filed 162 days after the judgment for the claimant, the appeal must be dismissed, though the only assignments of error are by appellants other than the administrator.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 854-856, 915-917; Dec. Dig. 256(5).]

neys' fees, and foreclosure of the mortgage
executed to Watson. It was alleged that
both the estate and Watson were insolvent.
Appellant Wilt filed a separate answer, in
which she alleged, in substance, that at and
prior to the time of the execution of the in-
demnifying mortgage there was a valid and
subsisting mortgage lien on the real estate;
that subsequent thereto Watson released his
mortgage, and she thereafter took a new
mortgage and furnished the money to pay
the first and prior mortgage, and her lien
should be declared senior to the indemnify-
ing mortgage relied upon by appellee. Kinne-
man and Kinneman filed special answers.
The court sustained appellee's demurrers to
said special answers. Whereupon such an-
swering defendants refused to plead further,
reserved their exceptions, and elected to
stand upon the rulings on their demurrers.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied. Transfer denied.

The court thereupon allowed the claim | The proceedings in this case clearly invoked against the estate in the sum of $1,245, and the probate jurisdiction of the trial court, costs, rendered a personal judgment against and in no other way could appellee have obWatson, the surety, and decreed foreclosure tained the full relief sought and obtained of the mortgage against all the defendants. by the judgment rendered. Mary K. Wilt and Kinneman and Kinneman excepted to the rulings and judgment against them, prayed and were granted an appeal, and have assigned as error the rulings of the court in sustaining appellee's demurrers to their several special answers.

[1] Appellee contends this court has not acquired jurisdiction of this appeal for two reasons: (1) The decision or judgment appealed from is one "growing out of a matter connected with a decedent's estate"; (2) no appeal bond has been filed.

[2] The question presented is jurisdictional, and when it appears from the record that the court is without jurisdiction it becomes the duty of the appellate tribunal, on motion, on suggestion of counsel, or on its own motion, to proceed no further, except to dismiss the appeal. Vail v. Page, supra, and cases cited; Harrison National Bank v. Clubertson, 147 Ind. 611, 45 N. E. 657, 47 N. E. 13; Mumford Co. v. Terry, 43 Ind. App. 339, 87 N. E. 253.

The appeal is dismissed.

CALDWELL, C. J., HOTTEL, P. J., and IBACH and MORAN, JJ., concur. McNUTT, J., not participating.

The judgment appealed from was rendered on July 8, 1914, and the transcript was filed on December 17, 1914, 162 days after the rendition of the judgment. If the appeal is governed by sections 2977-2980, Burns 1914, controlling appeals from decisions connected with decedent's estates, the appeal cannot be sustained, for the statute requires persons, appealing from such decisions, other than administrators and executors, to file bond with- (Appellate Court of Indiana, Division No. 2

in 30 days from the date of the decision unless more time is procured in conformity with the statute, and the transcript must be filed An within 90 days after filing such bond. appeal is taken from the judgment as an entirety and must be considered. Sterne v. Vert, 108 Ind. 232-234, 9 N. E. 127; Beard v. Hosier, 58 Ind. App. 14-17, 107 N. E. 558, The character of the proceeding is not changed because the only assignments of error are made by appellants other than the administrator of the decedent's estate. Section 2977, supra, provides that "any person considering himself aggrieved by any decision of a circuit court, growing out of any matter connected with a decedent's estate, may prosecute an appeal" on conditions stated. If the judgment appealed from grows out of "any matter connected with the decedent's estate," the transcript was filed too late to comply with the statute.

The basis of the whole suit is the note executed by the decedent and a mortgage likewise executed by him. Suit upon such note could not have been maintained against the estate in any other way except by filing a claim against the pending estate of the deceased maker. Section 2829, Burns 1914. In Vail v. Page, 175 Ind. 126, 93 N. E. 705, our Supreme Court recently considered this question, and Morris, J., who wrote the opinion, reviewed the decisions, and among other things said, "The test applied in the determination of the question is whether or not the probate jurisdiction of the trial court was involved," and held that, in cases where such jurisdiction has been invoked, the appeal is governed by sections 2977-2980, supra.

(63 Ind. App. 95)

GREATHOUSE et al. v. HARRISON. (No. 9093.)

Nov. 21, 1916.)

1. MORTGAGES 315(1)-SALE OF PREMISESBONA FIDE PURCHASER-RELEASE BY MISTAKE.

In an action to foreclose a mortgage which plaintiff claimed he had released of record by mistake, where the legal title to the property has passed to one of defendants since the retitle, must show either that such defendant lease was made, plaintiff, in order to defeat such holds as a mere volunteer, or fraudulently, or that no consideration was paid by him.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 942, 943, 945, 946, 948; Dec. Dig. 315(1).] 2. DEEDS 196(2) — VALIDITY - BURDEN OF

PROOF.

A deed fair and valid on its face is evidence of an honest transaction, and until it is assailed by proof that it was obtained by the fraud of the grantee, he is not required to adduce any evidence in its support.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 8 649; Dec. Dig. 196(2).]

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action by Theodore F. Harrison against Archie Greathouse and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial,

Clarke & Clarke, of Indianapolis, Wray & Campbell, of Shelbyville, and John W. Bowlus, of Indianapolis, for appellants. Alfred R. Hovey, of Indianapolis, John A. Tindall, of Shelbyville, and Franklin McCray, of Indianapolis, for appellee.

IBACH, J. Appellee brought this action against appellant Greathouse and a number of other defendants to recover on a note executed by one Henderson and to foreclose a mortgage given to secure the same on prop