670. Defects disregarded, merits fairly tried.

Whenever it affirmatively appears by the record on appeal that the merits of a case have been fairly tried and a correct result reached, the judgment will not be reversed on account of intermediate errors. Latshaw v. State, 156 Ind. 194; Ellis v. City of Hammond, 157 Ind. 267; Cox v. Peltier, 159 Ind. 355; Germania Ins. Co. v. Pitcher, 160 Ind. 392; Haas v. Cones Mfg. Co., 25 App. 469; Wortman v. Minich, 28 App. 31; Citizens R. R. Co. v. Hamer, 29 App. 426; Hedrick v. Robbins, 30 App. 595; McCoy v. Board, 31 App. 331; Trent v. Edmonds, 32 App. 432.

If an erroneous instruction is given to the jury the verdict must be clearly supported by a preponderance of the evidence before the error will be disregarded on appeal. Stuck v. Yates, 30 App. 441; Borkenstein v. Schrack, 31 App. 220.

If it appears by special findings that the appellant is not entitled to recover, errors committed in ruling on demurrers will be disregarded. Peele v. Ohio Oil Co., 158 Ind. 374.

Whenever amendments could have been made in the trial court to cure any defects or variances, such amendments will be deemed on appeal to have been made. Consumers Co. v. Eyer, 160 Ind. 424.

672. Reversal on appeal, remanding, instructions.

The supreme court may reverse a judgment and remand the cause with instructions to grant a new trial where judgment has been entered on a special finding of facts. McCoy v. Kokomo Ry. Co. 158 Ind. 662.

If on the return of a general verdict in favor of the plaintiff with answers to interrogatories the defendant moves for a new trial and also for judgment in his favor on the special findings and the latter motion is sustained and on appeal the judgment is reversed with directions to enter judgment on the general verdict, the defendant can not then claim that his motion for a new trial is pending and should be ruled upon. Salem-Bedford Co. v. Hobbs, 27 App. 604.

674. Notice to clerk below-Rehearing.

The time fixed by statute within which a petition for a rehearing shall be filed can not be extended by the court. Dudgeon v. Bronson, 159 Ind. 562.

675. Death after submission.

If a party to an appeal dies after the submission of a cause, judgment will be rendered as at the term at which the cause was submitted. Haugh v. Smelser, 31 App. 571.

All judgments requiring the payment of money are to be enforced by execution. Hord v. Bradbury, 156 Ind. 30.

715. Exemption from execution.

If under a decree of foreclosure the land sells for less than the sum due and a receiver is appointed to collect the rents during the year allowed for redemption, the mortgagor can not claim such rents as exempt from execution as against such decree and the mortgagee. Russell v. Bruce, 159 Ind. 553.

No property is exempt from sale under an execution on a judgment rendered to recover money lost at gaming. State v. Morgan, 160 Ind. 474.

744. Sale for two-thirds appraised value.

If a judgment does not authorize a sale without relief of appraisement laws and a sale is made without any appraisement, such sale is illegal and will be set aside. Bollman v. Gemmill, 155 Ind. 33.

Sales of property made by assignees of insolvent debtors are not controlled by the statute requiring property sold under execution to be sold for two-thirds of its appraised value. Peele v. Ohio Oil Co. 158 Ind. 374.

778. Certificate of purchase, record, assignment.

Certificates of purchase issued to purchasers at execution sales are made assignable by statute. Turpie v. Lowe, 158 Ind. 314.

779. Possession of land for year after sale.

The owner of land sold under execution is entitled to the land for a year after the sale, and is entitled to the rents and profits during such year. Russell v. Bruce,

159 Ind. 553.

782. Redemption by owner, sale vacated, re-sale.

If land sold under execution is redeemed under section 782, Burns' R. S. 1901, the sale is vacated and the lien of the judgment is reinstated for any unpaid balance and the land may be resold to pay such balance. Todd v. Oglebay, 158 Ind. 595.

817. Execution, imprisoning female.

The statute prohibiting the imprisonment of females under executions issued against the body, does not prevent the imprisonment of a female for contempt in refusing to obey an order of court to pay over money in proceedings supplementary to execution. Joyce v. Everson, 161 Ind. 440.

833. Orders of court as to property.

A female may be attached and imprisoned for failure to comply with an order of court requiring the delivery of money or property made in proceedings supplementary to execution. Joyce v. Everson, 161 Ind. 440.

834a. Railroad, summoning agent to answer.

No order or judgment can be made or entered against the agent of a railroad company under section 834a, Burns' R. S. 1901, requiring such agent to pay into court money received by him to be applied on a judgment against such company until after such agent has been summoned to appear and he has answered as to the amount of funds in his hands or as to the amount he will probably receive. Chicago Ry. Co. v. Witt, 160 Ind. 680.

[Acts 1905, p. 59. In force April 15, 1905.]

893. Entry, survey, effort to purchase, title.-1. That any person, corporation, or other body having the right to exercise the power of eminent domain for any public use, under any statute, existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this act except as otherwise provided herein. Before proceeding to condemn, such person, corporation or other body, may enter upon any land for the purpose of examining and surveying the property sought to be appropriated or right sought to be acquired; and shall make an effort to purchase for the use intended such lands, right of way, easement or other interest therein or other property or right. In case such land or interest therein or property or right, is owned by one who is of unsound mind, or an infant, the person, corporation or other body seeking to obtain the land or interest therein for such use may purchase the same of the regularly constituted guardian of such insane person or infant; and if such purchase shall be approved by the court or judge thereof appointing such guardian, and such approval written upon the face of the deed, such conveyance of the premises so purchased, and the deed made and approved by such court or judge, shall be valid and binding upon such insane person or infant. The deed so given, when executed in lieu of condemnation, shall convey only the interest stated in the deed. Wherever land is taken by condemnation proceedings the entire fee simple title thereto may be taken and acquired if such land is taken for the site of a station, terminal, power-house, sub-station, round-house, yard, car barn, office building or any other purpose except for a right-of-way.

This act supersedes sections 893 to 924, of Burns' R. S. 1901, providing for the assessment of damages for property taken under the right of eminent domain. The section numbers given this act begin with the first section in R. S. 1901, providing for the assessment of damages.

See section 66, Burns' R. S. 1901, for constitutional provision as to appropriating property and notes to decisions.

See notes to section 893, Burns' R. S. 1901, for reference to statutes conferring the right to exercise the power of eminent domain, and notes to decisions on the subject.

See notes to section 5160, Burns' R. S. 1901, for reference to decisions concerning the right of railroad companies to appropriate lands.

See sections 5468e-5468h, Burns' R. S. 1901, for powers conferred upon interurban railroad companies to appropriate lands.

See sections 5122a-5122f, Burns' R. S. 1901, for powers conferred upon pipe line companies to appropriate lands.

Statutes providing for the appropriation of land under the right of eminent domain being in derogation of the common law are to be strictly construed. San Francisco Co. v. Alameda Co., 36 Cal. 639.

Property can not be authorized to be appropriated under the right of eminent domain for a purely private use or benefit. Consolidated Co. v. Central Pac. R. R. Co., 51 Cal. 269; County of San Mateo v. Coburn, 130 Cal. 631.

Whether the taking of property under the right of eminent domain is for a public or private use is a judicial question, and the declaration of the legislature that the purpose for which property is authorized to be taken is a public use is not conclusive upon the courts. Logan v. Stogsdale, 123 Ind. 372; County of San Mateo v. Coburn, 130 Cal. 631.

The power to condemn land which has been appropriated to public use must be conferred either by express or implied legislative authority. Indianapolis R. R. Co. v. Indianapolis Transit Co., 33 App. 337.

The right to exercise the power of eminent domain is involved in condemnation proceedings and the use of property appropriated can not be enjoined because of errors in the proceedings. Boyd v. Logansport Co., 161 Ind. 587.

The mode provided by statute for the taking of property under the right of eminent domain must be closely pursued. Indiana Ry. Co. v. Oakes, 20 Ind. 9;

Southern Pac. R. R. Co. v. Wilson, 49 Cal. 396.

If a court refuses to appoint appraisers to assess damages for land taken under the right of eminent domain, no appeal lies from such order. Lafayette Ry. Co. v. Butner, 162 Ind. 460.

894. Condemnation-Complaint.-2. If such person, corporation or other body shall not agree with the owner of the land, or other property or right or with such guardian, touching the damages sustained by such owner, as provided in the last section, the person, corporation or other body so seeking to condemn may file a complaint for that purpose in the office of the clerk of the circuit or superior court of the county where such land or other property or right is situated. Such complaint shall state:

First. The name of the person, corporation or other body desiring to condemn such lands, or other property or right, who shall be styled plaintiff ;

Second. The names of all owners, claimants and holders of liens on the property or right, if known, or a statement that they are unknown, who shall be styled defendants;

Third. The use the plaintiff intends to make of the property or right sought to be appropriated;

Fourth. If a right of way be sought, the location, general route, width and termini thereof;

Fifth. A specific description of each piece of land sought to be taken, and whether the same includes the whole or only a part of the entire pareel or tract. And in all cases where land is sought to be condemned by a municipal corporation for a public use which confers benefits on any

lands, a specific description of each piece of land to which the plaintiff alleges such benefits will accrue. Plats of the lands alleged to be affected may accompany such descriptions;

Sixth. That such plaintiff has been unable to agree for the purchase of such lands or interest therein other property or right with such owner, owners or guardian, as the case may be, or that such owner is insane or an infant and has no legally appointed guardian; or is a non-resident of the state of Indiana. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings at the option of the plaintiff; but the court or judge may consolidate or separate such proceedings to suit the convenience of parties, and the ends of justice. The filing of such complaint shall constitute notice of such proceedings to all subsequent purchasers and encumbrances of the property, who shall be bound thereby.

See section 896, Burns' R. S. 1901, and notes.

895. Notice by clerk-Non-resident.-3. Upon the filing of such complaint the clerk shall issue a notice, which shall contain the names of the parties, a general description of the whole property, a statement of the public use for which it is sought, a reference to the complaint for descriptions of the respective parcels, and requiring the defendants to appear on a day, to be fixed by the plaintiff by indorsement on the complaint, and show cause why the property described should not be condemned as prayed for in the complaint. In all other particulars the notice must be in the form of a summons in civil actions, and must be served in like manner. Upon a showing, by affidavit, that any defendant is a nonresident of the State of Indiana, or that his name or residence is unknown, publication and proof thereof shall be made as provided in section four hereof.

See section 898, Burns' R. S. 1901, and notes.

896. Service of notice-Appraisers.-4. Upon return of such notice showing service thereof for ten days, or proof of publication for three successive weeks in a weekly newspaper of general circulation printed and published in the English language in the county in which the land. sought to be appropriated is situated, the last publication to be five days before the day set for the hearing, and it shall be the duty of the clerk of the court, in which the proceedings are pending, upon the first publication, to send to the postoffice address of each nonresident land owner, whose land will be affected by said proceedings, a copy of said notice, if the postoffice address of such owner or owners can be ascertained by inquiry at the office of the treasurer of said county, and the court or judge in vacation being satisfied of the regularity of the proceedings, and the right of the plaintiff to exercise the power of eminent domain for the use sought, shall appoint three disinterested freeholders of the county to assess the damages, or the benefits and damages, as the case may be, which the owner or owners severally may sustain, or be entitled to, by reason of such appropriation.