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cause of undue influence exercised by others ERWIN, J. This action was brought by and of which the beneficiary is ignorant.

appellants to resist the probate of the will [Ed. Note. For other cases, see Wills, Cent. of John Samuels, deceased. Trial was bad Dig. $$ 375, 379; Dec. Dig. Om 155(1).]

by a jury, and a verdict returned in favor of 8. TRIAL 207 ACTIONS TO CONTEST - In the validity of the will. STRUCTION-PURPOSE OF EVIDENCE.

In a will case, refusal of an instruction The assignment of errors presents but one confining evidence of alleged statements of con- primary question, to wit, overruling appeltestants that they expected a share of lands lants' motion for a new trial. The motion which had been deeded by the testator to his

for a

new trial contains many reasons, son, to the purpose of showing the interest of the witness, was error.

therefore, not all of which are urged by ap[Ed. Note.-For other cases, see Trial, Cent. pellants. Dig. 88 49S, 499, 501; Dec. Dig. 207.] We are met at the threshold of this case 9. WITNESSES W39S(3) IMPEACHMENT with a motion to dismiss this appeal, which

STATEMENTS OUT OF COURT-CROSS-EXAMI- motion is based on the grounds that after NATION.

Where a witness on cross-examination de- an appeal had been granted by the trial nied that he had stated to another witness that court, and before the time which the court the mother of the latter would receive $25 if had given appellants to file their bond, the she testified that testator was of unsound mind, appellee Mary Samuels died, and that, apthe admission of testimony in rebuttal to show pellants not having filed assignment of erthat such conversation took place was error, since a witness can only be impeached by proof rors in this court with the heirs and personal of statements out of court contrary to the tes representatives of said Mary Samuels as aptimony of the witness when such testimony re- pellees, therefore this cause should be dislates to a material matter in issue, and a party allowed, in the discretion of the court, to cross- missed for failure to make proper parties apexamine a witness as to specific extraneous of pellee. It is proper to state here that this fenses calculated to impair his credibility, is was a term time appeal, prayed and granted bound by the answer the witness gives.

in the lifetime of appellee Mary Samuels. [Ed. Note.-For other cases, see Witnesses, and time given to perfect the same by filing Cent. Dig. § 1275; Dec. Dig. 398(3).]

bills of exceptions and bond, all of which 10. WILLS Ow790_ELECTION-TIME-BEFORE

were done within the time allowed by the PROBATE.

Burns' Ann. St. 1914, 8 3025, provides as to trial court. We are of the opinion that the personal property a widow may within 90 days case of Bruilette Creek Coal Co. v. Pomatto, after the probate of a will elect to take under the 172 Ind. 288, 88 N. E. 606, is decisive of the will instead of law. Section 3043 provides that a widow may within one year after the probate

question here presented. of a will elect to take under the law rather than [1] When an appeal is prayed in term and the provisions of the will. Held that, as no elec- time given to file bills of exceptions and bond, tion is authorized to be made until after the will the filing of the bond relates back to the is admitted to probate, a written election of the widow to take under the law was not admissible date the appeal is granted and the time fixed in an action to contest the probate of the will. for filing the bond, and if the transcript is

[Ed. Note.- For other cases, see Wills, Cent. filed in this court within 180 days from the Dig. 88 2043–2048; Dec. Dig. Ons 790.]

date of the judgment, and within 60 days 11. WITNESSES @359IMPEACHMENT_OTHER from the filing of the bond, then the appeal OFFENSES.

is perfected within the time required by law, In a will case, where a witness on crossexamination admitted 'a certain prosecution and appellee has all the notice the law re against her, records of the court in such prose- quires to be given. If appellee dies after cution showing the return of an indictment the appeal is prayed and before the filing of against her and her husband, who was not a party to the action, a trial by jury, a verdict the transcript in this court, the heirs and and motion for new trial, which was granted, personal representatives are required to take and a dismissal of the case by the state, were notice of such appeal, and it is not incumbent not admissible.

on appellant to give further notice of his in[Ed. Note.--For other cases, see Witnesses, tention to appeal. Bruilette Creek Coal Co. Cent. Dig. 88 1161, 1162; Dec. Dig. Om359.)

v. Pomatto, supra. An assignment of errors Appeal from Circuit Court, Clinton Coun- with the prevailing party as appellee is suffity; Joseph Combs, Judge.

cient, and is all that is required of appellant. Action by Mary J. Johnson and others to [2] Another cause for dismissal is based resist the probate of the will of John Sam- on the amendment of the assignment of eruels, deceased, proposed by Mary Samuels rors which was made by leave of this court and others. Judgment establishing the va

upon what was determined at the time to lidity of the will, contestants' motion for new be a proper showing. It is insisted by aptrial overruled, and contestants appeal.

pellees that, because of such amendment, Judgment reversed, with instructions to grant which consisted in making the heirs and permotion for new trial.

sonal representatives of Mary Samuels parGifford & Gifford and Jesse R. Coleman, ties appellee, and after the expiration of 180 all of Tipton, and Kent & Ryan, of Frankfort, days from the date of the judgment, therefor appellants. Strawn & Robison, of Frank- fore appellants are not in court. As was fort, and Kemp & Kemp, of Tipton, for ap- said in Bruilette Creek Coal Co. v. Pomatto, pellees.

supra, quoting from Sawyer-Wallace & Co. v.

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Fuqua, 41 S. W. 15, 46 S. W. 209, 20 Ky. , proof was upon the proponents of the will, Law Rep. 1:

and not on plaintiffs, appellants, and gave "His death operated only to transfer the appellees, proponents and defendants, the judgment to his personal representative or to opening and closing of the evidence and arbis heirs or legatees, who are bound to take such action as might be deemed, appra at least establish a prima facie case by show

gument. Appellees, having the burden, must priate to protect their interest. fact that an appellee died before the transcript ing by some evidence all the essential facts was filed did not vitiate the appeal, but merely necessary to the validity of the will in quesrendered a revivor necessary. jurisdiction of the appeal granted by the cir- tion. Of the questions put in issue by the cuit court. The revivor did not bring in a new objections to the probate of the will were the party in interest. It merely brought in a new following: (1) That said pretended will was representative of an interest already before the executed under duress; (2) that said precourt,

* The granting of the appeal by the circuit court was notice to the decedent tended will was obtained by fraud. On the in this case, and brought him before this court, issues thus formed the burden is imposed though it was incumbent on appellant to file upon appellees to produce some evidence, at the transcript, of which Dean was required to least enough to make out a prima facie case, take notice, if living, but which was required to be revived against his personal representative before they would be entitled to have, the should he die.'"

will admitted to probate, even though there It is further insisted that the original as

had been no evidence to the contrary on the signment of errors was joint, while the rec- part of appellants. This instruction had ord shows that the motion for a new trial the effect of telling the jury that the burden was "separate and several,” and the excep

had shifted to appellants on those issues. tions to the ruling of the court on the motion

Whoever asserts a right dependent for its for a new trial was also "separate and sev

existence upon a negative must establish the eral."

truth of the negative by a preponderance of [3] While this court has in some cases held the evidence. Steinkuehler v. Wempner, 109 that such an assignment presents no ques

Ind, 154, and cases cited on page 160, 81 tion for our consideration, we are of the N. E. 482, 15 L. R. A. (N. S.) 673. opinion that such holdings were not intended

[5, 6] It is true that the later clause of into apply to a case such as this one, where struction No. 2 and other instructions tells the ruling affects all alike, especially where the jury that the burden is on appellees to the action is in rem, and is in effect that all establish by a preponderance of the evidence parties moving for a new trial excepted to that the will was not unduly executed and the ruling of the court. It seems to the

that testator was not unduly influenced to

But this does not cure writer of this opinion that this rule is high-execute the same. ly technical, to say the least, and served the error committed in giving the erroneous more to confound than otherwise and should instruction. The only manner in which the be abrogated entirely. If all persons against court may obviate the error in giving an imwhom a verdict is returned file a motion for proper instruction is to withdraw the era new trial assigning the same causes there- roneous instruction. If by an instruction the for, either jointly or severally, and a ruling burden of proof is placed on the wrong paris had and exceptions taken by all parties ty, the judgment will be reversed. Hunt v. against whom the ruling is made, either Osborn, 40 Ind. App. 646, 82 N. E. 933 ; jointly or severally, the question is presented Holliday & Wyon Co. v. O'Donnell, 54 Ind. to this court on an assignment of errors, App. 95, and cases cited on page 104, 101 whether made by one or all of the parties N. E. 642; Evansville, etc., R. Co. v. Hoffexcepting to such ruling, either in a joint or

man, 56 Ind. App. 530, 536, 105 N. E. 788; separate assignment.

Roller v. Kling, 150 Ind. 159, 49 N. E. 918; The questions presented by the assignment Chicago, etc., R. Co. v. Glover, 154 Ind. 584, of errors relate to the giving of instructions, 57 N. E. 244. the refusing to give instructions tendered by

Instruction 4 is erroneous for the same appellants, and rulings on the admission of

reason. It, too, tells the jury that the bur. evidence.

den is on plaintiffs, appellants. [4] The first instruction complained of is

[7] Appellants contend that instruction 17 instruction No. 2 given by the court on its was erroneous for the reason that it confines own motion. This instruction is as follows: the undue influence, if any, to appellees, de

fendants. “No evidence having been offered to the jury

The part complained of is as on the question of whether or not the alleged

follows: will was executed under duress, or that it was "So in this case, if you find that at the time obtained by fraud, I instruct you that upon John Samuels signed the alleged will he was those two issues made by the pleadings your not under the influence of the defendants in this findings should be for the proponents or defend action or either of them to the extent and in ants. Therefore the only remaining issues for the way and manner herein stated, then such you to determine are: Was the alleged will duly will would not be void on the grounds of undue executed, and was the said Samuels a person of influence." sound mind at the time, or was he unduly infuenced to execute the same?"

As was said in Barr v. Sumner, 183 Ind.

402, 419, 107 N. E. 675, 681: The court in the trial of this case held,

"While undue influence is generally exerted and rightfully we think, that the burden of i by the beneficiary, yet a will. may be invalid

because of undue influence of which the benefi- ! that she gets $25 out of it,' or words to that ciary was ignorant"-citing Page on Wills, 129. effect."

And we are of the opinion that the instruc This question was answered in the negition was erroneous in limiting the undue in tive. Appellees in rebuttal called Benjamin fluence to defendants, appellees.

Lawhorn and offered to show that such Appellants complain that the court erred conversation took place between the witness in refusing to give instruction No. 25. This and Townsend. Proper objections were made instruction reads as follows:

to this question, which were overruled, and "Certain evidence has been admitted herein in the witness was allowed to state that such regard to statements alleged to have been made a conversation was had with Townsend. by some of the plaintiffs in this cause to the This was error; for in this state the rule is effect that they expected to get, or intended to well established that a witness can only be get, a share of the land heretofore deeded by John Samuels to his son, John McKinley Sam- | impeached by proof of statements made out uels. If you find that such statements were in of court contrary to the testimony of the fact made, you may consider them only on the witness, when such testimony relates to a question of the interest or credibility of such material matter in issue. Pape v. Lathrop, plaintiffs when testifying in this case, and cannot be considered by you as evidence on any is- 18 Ind. App. 633, and cases cited on page sue of unsoundness of mind of the testator, nor 650, 46 N. E. 154; Miller v. State, 174 Ind. upon the question of the presence or absence of 255, and cases cited on page 261, 91 N. E. undue influence in the execution of the alleged will of John Samuels, nor upon the question as

930. to whether the instrument in suit was duly exe "The court may in its discretion nermit a wit. cuted as the last will and testament of John ness on cross-examination

to be inSamuels, nor can it be considered in connec-terrogated as to specific, extraneous offenses and tion with the said deed for the purpose of de- conduct calculated to degrade him, and thus imtermining the validity or lack of validity there, pair his credibility as a witness. But in every of, for the reason that the validity of such deed such case the party propounding the interrogais not in issue here, and the result in this case tory is bound by the answer the witness gives, will in no way affect the validity of such deed." and will not be permitted to introduce substan[8] There was introduced in evidence over 162 Ind. 174, 182, 70 N. E. 521, 524; Rock v.

tive evidence to contradict it.”. Dunn v. State, the objections of appellant the testimony of State, 184 Ind. 110 N. E. 212, 213. the county recorder of Tipton county, a con

On the trial of this cause appellees offered versation with one of the appellants in relation to securing from him, the recorder, effect was an election of the widow and ap

in evidence a written instrument which in a certified copy of a certain deed made by the testator prior to the time of making the pellee Mary Samuels to take under the law,

and not under the will sought to be probated. will in question, and it was allowed to remain in the record, notwithstanding appel- such widow after the complaint in this case

This election was prepared and signed by lants' motion to strike it out. While it is

was filed. This was objected to by appeldoubtful whether such testimony was com

lants, and over such objections was read petent for any purpose, appellees evidently offered it to show the interest of the party to the jury. Appellants insist that this was

error, in that it gave appellees the right to as a witness, and it should have been confined to that object, and the instruction argue to the jury that appellee Mary Sam

uels had exercised no improper influence over should have been given. The testimony certainly had no bearing on the sanity of tes

the testator in making the will. tator, nor did it relate to any issue tendered

[10] We are of the opinion that this instru. by the pleadings, and was not in contradic- ment had no proper place in the evidence, tion of any statement made by the witness for the reason that no election is authorized while testifying in this case.

to be made until after the will is admitted

But, having admitted it for the purpose of showing the to probate. Section 3025, Burns 1914, prointerest of the witness, it should have been vides as to personal property that the widow limited to that purpose, which the instruction may within 90 days after the probate of a tendered would have done.

wil: elect to take under the will instead of [9] In the trial of the cause one Joseph the law. Section 3043, Burns 1914, provides Townsend was offered as a witness and tes that the widow may within one year after the tified he had known the decedent 30 years probate of a will elect to take under the law and related some conversations he had had rather than the provision of the will. Any with him and gave it as his opinion that election made prior to the probate of the decedent was not of sound mind all of the will could have no bearing on the validity time. On cross-examination he was also of the will, and hence had no force in supasked, over the objections of appellants, the porting it: following questions:

[11] Sarah Magnet, one of the appellants, "Did you not go to the home of Susan and

was a witness in this cause. On cross-examiPenjamin Lawhorn in Tipton, Ind., on or about nation she was asked as to a certain prosethe 21st of February 1914, and state to the son cution against her which she admitted. ApLenjamin Luwhorn in the wooushed, I would pellees introduced in rebuttal the records of like to know what you folks think about the the Tipton circuit court showing the reSamuels case,' and then and there further state to him that,' 'If your mother will swear that turn of an indictment against her and her

trial by jury, a verdict and a motion for a "I, Charles M. Poston, of Seymour, in the new trial on the part of this witness which county of Jackson and state of Indiana, emwas granted, and a dismissal of the case by Railroad as engineman in the conducting trans

ployed in the service of the Baltimore & Ohio the state. No final judgment was rendered portation department, Indiana division, do hereagainst her. This record should not have by, as one of the conditions of such employbeen intruduced. What we have heretofore ment, apply for membership in the relief feature, said about the introduction of collateral regulations of the relief department now in

and consent and agree to be bound by all the matters in evidence is applicable here. force, and by any other regulations of said deFor the errors herein enumerated, the partment hereafter.

* I further agree judgment is reversed, with instructions to said company to the relief department, and of

that in consideration of the contributions of the court to grant appellants' motion for a

the guaranty by it of the payments of the benenew trial.

fits aforesaid, the acceptance of benefits from

the said relief department for injury or death, (63 Ind. App. 591)

shall operate as a release of all claims against BALTIMORE & 0. S. W. R. CO. v. POSTON. said company or any company owning or oper(No. 9184.)

ating its branches or division, or any company

over whose railroad right of way or property (Appellate Court of Indiana, Division No. 2. the said the Baltimore & Ohio Railroad ComFeb. 1, 1917.)

pany shall have the right to run or operate its MASTER AND SERVANT 100(1)-INJURY TO

engine or cars or send its employés in the perSERVANT-WAIVER OF LIABILITY.

formance of their duty, for damages by reason A contract by a railway company with its of such injury or death, which could be made employés, requiring them to become members of by or through me; and that the superintendent a relief association and to accept benefits re

may require, as a condition precedent to the ceived thereunder in full payment of personal payment of such benefits, that all acts by him injuries, held to be contrary to Burns' Ann. St. full release and discharge of the said companies

deemed appropriate or necessary to effect the 1914, § 5308, prohibiting such relief associations and all waiver of liability, and therefore void. from all such claims, be done by those who might

bring suit for damages by reason of such injury [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $ 166; Dec. Dig. On a suit by me, my beneficiary or legal representa

or death; and also, that the bringing of such 100(1).]

tive or for the use of my beneficiary alone or Appeal from Circuit Court, Lawrence with others, or the payment of any of the comCounty; Oren 0. Swaik, Judge.

panies aforesaid of damages for such injury or

death recovered in any suit or determined by Action by Charles M. Poston against the compromise, or of any costs incurred therein, Baltimore & Ohio Southwestern Railroad shall operate as a release in full to the relief Company. Judgment for plaintiff, and de- department of all claims by reason of my mem

bership therein." fendant appeals. Affirmed.

Under the construction placed on said act, Gardiner, Tharp & Gardiner, of Washing the contract, under which the dues which apton, Ind., R. N. Palmer, of Bedford, and Ed- pellee paid and now seeks to recover, was in ward Barton, of Cincinnati, Ohio, for appel- direct violation of its terms, and therefore lant. Giles & Doman, of Mitchell, for appel- void. Wells v. Vandalia R. Co., 56 Ind. App. lee.

211, 103 N. E. 360; Boes v. Grand Rapids,

etc., R. Co., 59 Ind. App. 271, 108 N. E. 174; IBACH, P. J. This is a suit by appellee Acton v. Baltimore & Ohio Southwestern R. Co., to recover certain dues paid to appellant's 59 Ind. App. 280, 108 N. E. 535, 109 N. E. 411. relief department. The theory of the com

Upon the authority of these cases, the plaint is that the contract under which such judgment is affirmed. dues were paid is in violation of the act of 1907 (Acts 1907, p. 46), being section 5308,

(63 Ind. App. 594) Burns 1914.

HOOSIER CONST. CO. V. SEIBERT. Appellant, to sustain the errors assigned,

(No. 9336.) contends that the by-laws of its relief de- (Appellate Court of Indiana, Division No. 2. · partment contain no provisions obnoxious to

Feb. 2, 1917.) the act of 1907, supra; that appellee volun

1. JUDGMENT Cm 551-CONCLUSIVENESS-RES tarily became a member of its relief depart JUDICATA. ment and paid his dues and at different A judgment in an injunction suit to pretimes accepted benefits from such depart. vent a public improvement, declaring the proment; that the contract set out in the com- ceedings void, which judgment was approved by

the Supreme Court, is controlling on the invaplaint in no wise seeks to prevent or re-lidity of the proceedings where that question is strain appellee from maintaining an action raised in subsequent suit by the contractor to for injury or death predicated on the neg- enforce a lien for the work done. ligence or wrongful conduct of the company. Cent. Dig. 88 995, 996; Dec. Dig. Om551.]

[Ed. Note.-For other cases, see Judgment, Other contentions are made, but those indi

2. MUNICIPAL CORPORATIONS 330(1)-PUBcated are sufficient to present the control

LIC IMPROVEMENTS PROCEDURE COMling question.

PETITIVE BIDDING. The application by which appellee became Competitive bidding in the letting of pav. a member of such relief department, the ing contracts is mandatory and jurisdictional, form of which is provided by regulation No. and, if omitted, the proceedings are void. 17 of such department, reads in part as fol. Corporations, Cent. Dig. § $54; Dec. Dig.

[Ed. Note.-For other cases, see Municipal lows:

330(1).]

For other cases see saine topic and KEY-NUMBER in all Key-Numbered Digests and indexes

CIENCY.

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3. MUNICIPAL CORPORATIONS 324_PUBLIC s against George W. Seibert. Judgment for

IMPROVEMENTS PROCEEDINGS INFIRMI. defendant on plaintiff's refusal to plead fur-
TIES-COLLATERAL ATTACK.

Where infirmity appears upon the face of ther after demurrer to the answer was overthe proceedings for a public improvement, the ruled, and demurrer to the reply was susproceedings are susceptible to collateral attack. tained, and plaintiff appeals. Affirmed.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$ 847-849; Dec. Dig.

Wm. F. Elliott and Clarence A. Kenyon, 324.]

both of Indianapolis, for appellant. Joseph 4. MUNICIPAL CORPORATIONS Om488, 489(10) B. Kealing and Martin M. Hugg, both of In

PUBLIC IMPROVEMENTS – - ASSESSMENTS ESTOPPEL TO QUESTION.

dianapolis, for appellee. As a general rule, where a property owner stands by without objection to improvements

CALDWELL, J. This appeal presents for which benefit his property, he cannot defeat the assessment against his property for the benefits examination the same public work as is inderived.

volved in Seibert v. City, 40 Ind. App. 296, [Ed. Note.-For other cases, see Municipal 81 N. E. 99. Appellant here was contractor Corporations, Cent. Dig. $81150–1152; Dec. in the construction of such work, the imDig. Om488, 489(10).] 5. MUNICIPAL CORPORATIONS Cw568(1)—BUR-provement of a designated portion of State DEN OF PROor.

avenue in the city of Indianapolis. AppelWhere invalidity of public improvement pro lee is the owner of certain real estate abutceedings appears, the contractor seeking to enting on the work, which real estate was liaforce a lien for the work has the burden to al- ble to assessment for the improvement of lege facts estopping the owner from questioning the assessment.

the avenue. Appellant brought this action [Ed. Note.-For other cases, see Municipal Cor- to foreclose a street improvement assessporations, Cent.Dig. 8 1282; Dec.Dig. Om568(1).] ment lien, based on said work, The com6. ESTOPPEL Oml12 PLEADING SUFFI

plaint contains, in addition to the usual No intendments are made in favor of a averments of a complaint of this sort, al. plea of estoppel, and the pleader must plead legations to the effect that appellee stood by fully all the facts essential to it.

without objection, and with knowledge per[Ed. Note.-For_other cases, see Estoppel, mitted and induced appellant to perform Cent. Dig. $ 302; Dec. Dig. ww112.)

labor and expend large sums of money in 7. MUNICIPAL CORPORATIONS O 567(4)—PUBLIC IMPROVEMENTS-SPECIAL ASSESSMENTS

prosecuting and completing the work under ACTIONS-PLEADING.

the contract. In an action to enforce a lien of a contrac Appellant's demurrer to appellee's antor for a public improvement, an answer fully swer was overruled, and appellee's demurrer pleading invalidity of the proceedings and show to appellant's reply was sustained, where ing that the property owner prosecuted an injunction proceeding and appealed to a higher upon judgment was rendered against appelcourt to restrain the improvement, and that lant that it take nothing, for failure and before entering into the contract the contractor refusal to plead further. Appellant assigns knew of such injunction proceeding, is sufficient. error on the ruling on the two demurrers.

(Ed. Note.–For other cases, see Municipal Corporations, Cent. Dig. § 1279; Dec. Dig.

The material part of the answer is, in 567(4).)

substance, as follows: June 28, 1905, the 8. MUNICIPAL CORPORATIONS Cw488, 489(5)— board of public works of said city adopted

PUBLIC IMPROVEMENTS–LIABILITY FOR AS- a preliminary resolution for the improve
SESSMENT-ESTOPPEL.
To estop the owner of land assessed for pub: resolution was subsequently modified so as

ment of the roadway of State avenue. The
lic improvement to question the assessment, it
must appear that he stood by without objec- to specify for the work Warren's patent
tion and permitted the work to be commenced bitulithic pavement, and as modified it was
and continued, and therefore, where he brought adopted as a final resolution. Certain por-
an injunction suit to restrain the improvement tions of the specifications are set out in the
and the assessment, he was not estopped.

[Ed. Note.-For other cases, see Municipal answer. They are identical with those Corporations, Cent. Dig. 88 1151, 1152; Dec. copied into the opinion in Seibert v. City, Dig. Om488, 489(5).)

supra, and it is therefore unnecessary to 9. LIS PENDENS Om 11(2) PRESUMPTIONS

repeat them or to state their substance here. NOTICE.

One having knowledge of a pending appeal. It will be observed from an examination able cause is conclusively presumed to know of the opinion in that case that such specifi. that a judgment entered therein may be appeal- cations required in the process of perforining ed from within a limited time.

the work that Warren's No. 24 Puritan brand [Ed. Note.-For other cases, see Lis Pendens, hard bituminous cement, Warren's Puritan Dec. Dig. Om11(2).]

brand No. 21 bituminous waterproof cement, 10. NEW TRIAL Eww1.16(3)-LACHES STATU.

and Warren's quick-drying bituminous flush TORY PERIOD.

A party who moves for new trial within coat composition be used. The answer inthe statutory time is not guilty of laches. cludeg also, with appropriate averments in

(Ed. Note.-For other cases, see New Trial, aid thereof, a written agreement entered in. Dec. Dig. Om 116(3).)

to between the board of public works and Appeal from Superior Court, Marion Coun. Warren Bros. Company prior to the adopty: V. T. Clifford, Special Judge.

tion of the specifications. This agreement Suit by the Hoosier Construction Company also is copied into the opinion in Seibert v.

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