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structions to modify the judgment or to grant a new trial; or to enter such other judgment or decree as to such court of appeal may seem right and proper upon the whole case.

In cases not triable by jury appellate courts will weigh and determine the sufficiency of the evidence to support the judgment under the act of 1903. Webb v. Hammond, 31 App. 613.

641i. No repeal.-9. This act shall not be held to repeal an act entitled "An act prescribing the manner in which the evidence given in any civil or criminal case may become a part of the record upon appeal to the supreme or appellate court; repealing all laws in conflict therewith and declaring an emergency; approved March 8, 1897," but said act shall remain in full force, and no provision of this act shall be so construed as to preclude any matter from being made a part of the record by bill of exceptions under the rules of practice now in force.

642. Reserved questions of law.

Mixed questions of law and fact, or questions depending upon the sufficiency of the evidence, can not be reviewed on appeal under the statute providing for appeals on reserved questions of law. Lautman v. Miller, 158 Ind. 382.

A bill of exceptions under the statute regulating appeals on reserved questions of law must show that such bill contains all the evidence given upon the question that was reserved. Standish v. Bridgewater, 159 Ind. 386; American Co. v. Williams, 30 App. 46.

An appeal can not be taken on a reserved question of law in a case that is not appeal. able because of the smallness of the amount in controversy. Brown v. Graham,

28 App. 59.

Notice must be given to the court of an intention to appeal on a reserved question of law, and such notice must be shown by the bill of exceptions. American Co. v. Williams, 30 App. 46.

If an appeal is taken from a ruling as to the admission or exclusion of evidence as a reserved question of law, the bill of exceptions must show that objections were made and the grounds thereof, and that exceptions were taken at the time. Fritzinger v. State, 31 App. 350.

In order to obtain a review on appeal of a ruling upon a reserved question of law, such ruling must be assigned as a cause for a new trial. Cross v. Cross,

156 Ind. 378.

644. Appeals, final judgments, exceptions.

There is no vested right in the remedy given by appeal, but the same is subject to legislative control. Lake Erie Ry. Co. v. Watkins, 157 Ind. 600; Evansville R. R. Co. v. City of Terre Haute, 161 Ind. 26.

if demurrers are sustained to answers and a cross-complaint of a defendant in an action for partition and he refuses to plead further and the court finds for the plaintiff and appoints commissioners to make partition, such defendant can not appeal from such order. Hollingsworth v. Hollingsworth, 29 App. 556.

If a receiver is appointed at the time a final judgment is rendered, an appeal may be taken within a year after the rendition of judgment. Hay v. McDaneld, 156 Ind. 390.

An appeal will not lie from an order staying proceedings in a cause until the costs made in a prior cause shall be paid. Trogdon v. Brinegar, 26 App. 441.

In actions to enforce liens, appeals lie to the supreme and appellate courts without regard to the amount in controversy. Knowlton v. Smith, 163 Ind. 294.

No appeal lies to the supreme court in actions commenced before mayors or justices of the peace when the amount in controversy does not exceed $50, although the constitutionality of a statute may be involved. Colliery Co. v. American Car Co., 157 Ind. 111.

If an action commenced before a justice of the peace is not appealable because of the amount in controversy, an appeal will not lie in such cause on a reserved question of law. Brown v. Graham, 28 App. 59.

If a party receives money on or accepts the benefit of a judgment, he can not afterwards appeal from the judgment. Mutual Ins. Co. v. Simpson, 163 Ind. 10; Raborn v. Woods, 33 App. 171..

If a party to a decree for a divorce remarries, such party can not appeal from the decree. Rariden v. Rariden, 33 App. 284.

Defendants may appeal from judgments after they have paid the same, and this rule applies where damages assessed for property taken under the right of eminent domain are paid. Cleveland Ry. Co. v. Nowlin, 163 Ind. 496.

645. Appeal within year, exception.

If a receiver is appointed at the time a final judgment is rendered, an appeal may be taken within a year after the rendition of judgment. Hay v. McDaneld, 156

Ind. 390.

An action commenced by an administrator to recover possession of the assets of the estate does not invoke the exercise of probate jurisdiction, and an appeal from the judgment rendered may be taken within a year after the rendition of the judgment. Mark v. North, 155 Ind. 575.

647. Appeal by part, notice.

When only a portion of co-parties take a vacation appeal they must notify all the other co-parties as provided by statute in order to confer jurisdiction on the appellate court. Brown v. Sullivan, 158 Ind. 224; Mellott v. Messmore, 158 Ind. 297; Sohl v. Evans, 29 App. 634; Burns v. Trustees, 31 App. 640.

The term co-parties as used in section 647 of the civil code means parties to the judgment appealed from and not co-plaintiffs or co-defendants. Hildebrand v. Sattley Mfg. Co., 25 App. 218.

When only a part of joint judgment defendants appeal, all of such defendants must be named as appellants in the assignment of errors. Smith v. Fairfield, 157 Ind. 491.

If in an action concerning real estate a party dies after judgment but before an appeal is taken, his heirs should be made parties to the appeal and served with notice. Rich Grove Tp. v. Emmett, 163 Ind. 560.

647a. Appeal by part of co-parties.

Section 647a, Burns' R. S. 1901, relates to perfected term-time appeals, and has no application to appeals prayed for in term but which are not perfected. Burns v. Trustees, 31 App. 640.

Any judgment defendant may take a term-time appeal without joining any of his co-parties or serving notice on them of the appeal. Small v. Hammes, 156 Ind. 556; Gunn v. Haworth, 159 Ind. 419; Keiser v. Mills, 162 Ind. 366; Evans v. Odem, 30 App. 207; Baltes Land Co. v. Sutton, 32 App. 14.

648. Death of party to appeal, notice.

If a party in whose favor the judgment appealed from is rendered dies before the appeal is perfected, the appellant must proceed as required by section 648 of the code to confer jurisdiction on the appellate court. Hewitt v. Mills, 27 App. 218.

If a judgment plaintiff dies before an appeal is taken, the defendant may appeal by complying with the provisions of the statute. Western Union Co. v. Adams, 28 App. 420.

If a party to a money judgment dies before an appeal is taken, his personal representative, and not his heirs, should be made a party to the appeal and notice thereof served on such representative. Sohl v. Evans, 29 App. 634.

If the judgment appealed from affects only the life estate of the appellee in lands, and the appellee dies, neither the heirs nor personal representatives of the appellee can be substituted as parties. Utter v. Kersey, 31 App. 25.

If a party to an action concerning real estate dies after judgment but before an appeal is taken, his heirs must be made parties to an appeal and notice given to them. Rich Grove Tp. v. Emmett, 163 Ind. 560.

If a defendant dies before the trial of a cause in the lower court, and his death is suggested of record, neither his heirs nor personal representatives can be substituted as appellees on appeal. Wilkinson v. Vordermark, 32 App. 633.

649. Death no abatement.

If the judgment appealed from affects only the life estate of the appellee in lands, and the appellee dies, neither the heirs nor personal representatives of the appellee can be substituted as parties. Utter v. Kersey, 31 App. 25.

650. Appeal in term, bond, transcript.

The filing of a bond is an essential step in perfecting a term-time appeal. Goodrich v. Stangland, 155 Ind. 279.

If one judgment defendant takes a term-time appeal and files a bond, such bond does not enure to the benefit of other defendants so as to create a term-time appeal as to them. Goodrich v. Stangland, 155 Ind. 279.

If a party taking a term-time appeal fails to file a transcript in the supreme court within sixty days after the filing of the appeal bond he will be deemed to have abandoned his term-time appeal. Lake Erie Ry. Co. v. Watkins, 157 Ind. 600; Court of Honor v. Bankert, 31 App. 689.

652. Appeal after term, notice, transcript.

When an appeal is taken in vacation, the rules of the appellate court as to the filing of the transcript and service of notice on the appellee must be complied with or the appeal will be dismissed. Doak v. Root McBride Co., 26 App. 138.

[Acts 1905, p. 490. In force March 7, 1905.]

658. (646.) Appeal from interlocutory order.-655. Appeals to su preme court may be taken from an interlocutory order of any circuit court or judge thereof, in the following cases:

First. For the payment of money, to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents or things in action.

Second. For the delivery of the possession of real property or the sale thereof.

Third. Granting or dissolving, or overruling motions to dissolve an injunction in term, and granting an injunction in vacation.

Fourth. Orders and judgments upon writs of habeas corpus made in term or vacation: Provided, That in any such case where an appeal is taken from any such order or judgment involving the custody of an infant, the court from which such appeal is taken shall make such order concerning the care and custody of such infant during the pendency of such appeal as shall be for the best interest of such infant.

This act amends section 655 of the act of 1881, being section 658, Burns' R. S. 1901. See notes to section 658, Burns' R. S. 1901.

No appeal lies from an interlocutory order denying a temporary injunction and vacating a temporary restraining order theretofore issued. Terre Haute Ry. Co. v. St. Joseph R. R. Co., 155 Ind. 27.

If several interlocutory orders are made in the same cause, a general appeal may be taken from all of such orders. Gagnon v. French Lick Co., 163 Ind. 687.

On an appeal from an interlocutory order it is only necessary to show to sustain the order that a proper case exists for investigation by a court of equity. Gagnon v. French Lick Co., 163 Ind. 687.

No appeal lies from an order of court requiring a witness to attend before an officer and give his deposition. In re Ray, 155 Ind. 31.

661. Transcript for appeal.

When an appellant desires a complete transcript of the record made for an appeal no written directions are necessary, and this rule is not changed by the act of 1903. Rutherford v. Prudential Ins. Co. 32 App. 423; Featheringill v. State, 33 App. 683.

Rule under the act of 1903, section 641g of this volume, as to including original bills of exceptions containing evidence in the transcript on appeal. Chicago Ry. Co. v. Cunningham, 33 App. 145.

If the appellant directs in writing the portions of the record to be included in a transcript for appeal, no other matters should be included in the transcript, and if other matters are included in the transcript they will not be regarded as a part of the record. Brown v. Armfield, 155 Ind. 150; McCaslin v. Advance Mfg. Co., 155 Ind. 298; Johnson v. Johnson, 156 Ind. 592; Chestnut v. Southern Ry. Co., 157 Ind. 509.

The case of Tombaugh v. Grogg, 156 Ind. 355, as to the presumptions arising when an original bill of exceptions is certified on appeal is partially overruled. Boos v. Lang, 163 Ind. 445.

A direction to a clerk to certify a full and complete transcript to an appellate court on appeal, will not authorize such clerk to include in the transcript an original bill of exceptions containing the evidence. Chestnut v. Southern Ry. Co., 157 Ind. 509; Marcy Mfg. Co. v. Flint Walling Co., 158 Ind. 173; Berry v. Chicago Ry. Co., 158 Ind. 668; Drew v. Town of Geneva, 159 Ind. 364; Boos v. Lang, 163 Ind. 445; McCabe v. Browder, 29 App. 362.

If written directions are given the clerk as to the parts of the record to be included in the transcript, and such request does not include the original bill of exceptions, the clerk may include such bill in the transcript if he is afterwards requested to do so by the appellant. Schlichter v. Taylor, 31 App. 164.

If written directions are given to the clerk as to the parts of the cord to be

included in the transcript on appeal, such directions must be appended to the transcript in order that the cause will be heard on appeal. Hollis v. Roberts, 25 App. 426.

If a bill of exceptions contains the original manuscript of the evidence and also other matters, the clerk has no authority to detach such evidence from the bill and insert it into the transcript and then copy the other portions of the bill in the transcript. Mankin v. Pennsylvania Co. 160 Ind. 447.

The certificate of the clerk to a transcript should be at the close of the transcript, and should authenticate the bill of exceptions containing the evidence as well as all other papers and entries embraced in the transcript. Johnson v. Johnson, 156 Ind. 592.

The certificate of the clerk to a transcript must have the seal of the court attached or it is not effective for any purpose. Johnson v. Johnson, 156 Ind. 592; Seipp Brewing Co. v. Woolman, 26 App. 642; Comstock v. Stoner, 30 App. 529.

662. Transcript, certificate, evidence, omission.

Order book entries, including pleadings copied therein, are made a part of the record by statute. Cleveland Ry. Co. v. Wasson, 33 App. 316.

A summons for a defendant who does not appear to the action should appear in the record on appeal in order to show jurisdiction of the court over the person of such defendant. Bartmess v. Holliday, 27 App. 544.

If a pleading appears in a transcript as an amended pleading, it will be presumed to be the amended plead although it is an exact copy of the original pleading. Indianapolis Ry. Co. v. Houlihan, 157 Ind. 494.

If pleadings are amended, the original pleadings are no longer a part of the record. Worl v. Republic Iron Co., 31 App. 16; Chicago Ry. Co. v. Indiana Co., 32 App. 519.

A motion which has been copied in a transcript can not be made a part of a bill of exceptions by reference to the place in the transcript where such motion is copied. Pittsburgh Ry. Co. v. Martin, 157 Ind. 216.

If the clerk of the court to which a cause is sent on change of venue certifies that the transcript contains a full transcript of all papers filed, including pleadings, it will be sufficient to show that the pleadings are in the record. Indianapolis Transit Co. v. Andis, 33 App. 625.

To make matters a part of the record by an order of court, such order must be made on the motion of a party and the matter must be entered on the order book as a part of the order of court. Board v. Gibson, 158 Ind. 471.

No original papers or documents can be inserted in a transcript on appeal except an original bill of exceptions containing the evidence. Mankin v. Pennsylvania Co.,

160 Ind. 447.

667. Assignment of errors, answer.

An assignment of errors must contain the full names of the parties, and when parties appear in a representative capacity they must be so named in the assignment of errors. Whisler v. Whisler, 162 Ind. 136.

Matters of law only can be assigned as error on appeals from proceedings to contest wills. Wait v. Westfall, 161 Ind. 648.

Each supposed error must be specified separately, and each specification must be complete in itself. Farmers Ins. Co. v. Yetter, 30 App. 187.

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