an order of injunction, issued by the trial court, restraining them from interfering with the sheriff in the execution of a writ❘ of ejectment. The injunction was issued to restrain them from interfering with the execution of the process issued in the ejectment case referred to in Hawkins v. State, 25 N. E. Rep. 818, (Oct. 31, 1890,) and we need not here rehearse the facts stated in the opinion in that case; for it is sufficient to say that the contempt for which the appellants were punished consisted in their acts performed in disobedience of the order of injunction issued to aid the sheriff in giving McDougal, the plaintiff in the ejectment action, possession of the land. The information upon which the attachment issued, as originally drawn, was entitled "William F. McDougal and the State of Indiana vs. Hiram L. Hawkins et al.," and it is urged that the information is vitiated by the addition of McDougal's name. As McDougal's name was subsequently withdrawn from the information, no substantial injury was done the appellants, even if it be conceded that if it had remained the information would have been ill. We are not, however, willing to decide that a plaintiff who is injured by the disobedience of a writ of injunction may not lodge information with the court, and secure an attachment for contempt. Hawley v. Bennett, 4 Paige, 163; Secor v. Singleton, 35 Fed. Rep. 376; Worcester v. Truman, 1 McLean, 483. But, as that question is not directly presented, we give no direct judgment upon it, contenting ourselves with adjudging that no substantial injury was done the appellants in this instance.

The entire information is not verified, the prosecution having adopted the singular and censurable course of verifying parts only of the pleading. This course seems to have been adopted in order to obtain the affidavits of persons who had knowledge of particular facts; but this supplies no valid excuse for departing from the rules of procedure, and introducing unnecessary confusion into the record. No direct attack, however, was made upon the information assigning for cause the insufficiency of the verification, and, as there was some verification, it cannot be held that the question of its sufficiency is presented as the rules of procedure require. Where a party desires to object to the verification of a pleading in a case where it is not entirely unverified, he must specifically assign for cause the insufficiency of the verification.

There can be no doubt as to the right and power of a court of competent jurisdiction to punish as for contempt a party who disobeys an order of injunction embodied in a decree rendered after a hearing upon issue joined. Where the order of injunction forms part of a decree rendered in regular course, upon issue joined by answer, the parties to the suit are bound to take notice of the order, and are not entitled to have a certified copy of the decree served upon them. The case is not analogous to one in which an order is issued before the parties are regularly in court; for, after parties are duly before the court, they must, at their peril, take notice of the provisions of the decree rendered in due

course upon the issues tendered by them. It is the duty of the parties to a suit to obey the injunction contained in the final decree, and they cannot collaterally impeach the decretal order for errors or irregularities. If there is jurisdiction, collateral attacks are fruitless. Telephone Co. v. State, 110 Ind. 203, 10 N. E. Rep. 922, and 12 N. E. Rep. 136; Billard v. Erhart, 35 Kan. 616, 12 Pac. Rep. 42; State v. Ferry, etc., Co., 16 W. Va. 864. An appeal does not vacate an injunction, nor authorize its disobedience. Until reversed, the decree is effective, and must be obeyed. Telephone Co. v. State, 110 Ind. 203, 10 N. E. Rep. 922, and 12 N. E. Rep. 136; Heinlen v. Cross, 63 Cal. 44; Sixth Ave. R. Co. v. Gilbert El. R. Co., 71 N. Y. 430; Graves v. Maguire, 6 Paige, 379; Robertson v. Davidson, 14 Minn. 554, (Gil. 422.) Where an information charges that the defendant, in disobedience of an injunction, wrongfully committed specific acts, an answer alleging that the defendants deny that "they did any of the acts in disobedience of the order of the injunction" is bad. It is a negative pregnant of the worst form. It admits the performance of the acts, but avers that they were not performed in violation of the injunction, and this is clearly insufficient; for, if the prohibited acts were performed, the law declares that the injunction was violated. Judgment affirmed.

HERKIMER et al. v. McGREGOR et al. (Supreme Court of Indiana. Dec. 9, 1890.) NEW TRIAL-PRACTICE.

Under Rev. St. Ind. 1881, § 561, declaring that a motion for a new trial may be made either before or after judgment, provided it be made and filed at the term at which the verdict or "decision" is rendered, it is proper practice to move for a new trial immediately after a finding of facts by the court.

On rehearing. For former report, see 25 N. E. Rep. 145.

OLDS, C. J. We fully considered the questions presented by the record in this case, and, as stated in the opinion, reversed it for the error of the court in overruling the motion of the appellant for a new trial. In doing so, we fully considered all the evidence in the case. In concluding the opinion, we, in effect, said that the question would have been more properly presented by exceptions to the conclusions of law, but that the exceptions were not taken at the proper time, and hence we did not make any ruling as to that particular error. This suggestion as to the exceptions to the conclusions of law was made for the reason that we were convinced the court also erred in its conclusions of law, though no question was properly presented, and therefore we could not reverse the judgment, with instructions to restate the conclusions of law. Counsel for appellees in their brief on petition for rehearing earnestly insist that there is no question presented by the motion for new trial, for the reason, as we interpret their brief, that the motion for new trial was prematurely filed, but with this theory we cannot agree. The cause

was submitted to the court for trial, and on proper request, the court made a special finding of facts. After the announcement of the finding of facts, appellants filed a motion for new trial, which was overruled. Exceptions were then taken to the conclusions of law, and thereupon the court appointed commissioners to make partition. Afterwards the commissioners reported. Appellants excepted to their report, and then the court rendered final judgment of partition, and apportioned the costs, and from this judgment appellants appeal. The appeal was taken from the final judgment in the case, and the motion for new trial was made and filed at the proper time, and exceptions reserved to the overruling of it. This is held to be the proper practice in the case of Jones v. Jones, 91 Ind. 72. Under our statute, a motion for new trial may be made either before or after judgment, provided it be made and filed at the term at which the verdict or decision is rendered; or if the verdict or decision be rendered on the last day of a term, then upon the first day of the next term. In Jones v. Jones, supra, it is held that the word "decision, used in section 561, Rev. St. 1881, means “finding." Prior to the Code, a motion for new trial could not be made after judgment. 1 Work, Pr. § 868; Smith v. Thornburgh, 7 Ind. 144; Quinn v. State, 123 Ind. 59, 23 N. E. Rep. 977; Emison v. Shepard, 121 Ind. 184, 22 N. E. Rep. 883; Colchen v. Ninde, 120 Ind. 88, 22 N. E. Rep. 94; Ikerd v. Beavers, 106 Ind. 483, 7 N. E. Rep. 326. It is unquestionably proper practice to make and file the motion for new trial immediately after the verdict of the jury is returned, or the finding of facts announced by the court.

as

We omitted any discussion in the original opinion of the technical objectious made to considering the main question discussed, for the reason that it was clear that the sufficiency of the evidence to sustain the finding was presented by the motion for new trial, and upon that question the judgment must be reversed; and no good purpose would be subserved by discussing the other alleged error. The petition for rehearing is overruled.

LOUISVILLE, N. A. & C. Ry. Co. v. SCHMIDT. (Supreme Court of Indiana. Dec. 9, 1890.) APPEAL-RAILROAD COMPANIES-ACCIDENt at

CROSSINGS.

1. Failure to discuss in the briefs an assignment of error as to the sufficiency of the special verdict is a waiver of the assignment.

2. Where the presence of a three-year old child on a railroad track at a public street crossing is not attributable to the negligence of its parents, the railroad company is liable for injuries sustained by the child from being run over by a detached car while its employes were making a running switch without taking any precaution to avcid injuries to travelers on the crossing. On rehearing. For former report, see 25 N. E. Rep. 149.

OLDS, C. J. This case was disposed of upon the grounds that no question presented by the record was discussed in the brief of counsel. In the brief of counsel for ap

pellant on petition for rehearing, it is insisted that the original brief discussed and presented the sufficiency of the facts found in the special verdict to entitle the appellee to judgment, which is presented by the assignment of error. In this contention, we cannot concur. The original brief on file in this case consists in making a statement of the case; that is to say, it states the material facts averred in the complaint, sets out a copy of the special ver dict, and states that motions were made for a venire de novo, for judgment, for a new trial, and in arrest of judgment, and a copy of the assignment of error is also set out. Then follows a brief discussion of the sufficiency of the second paragraph of the complaint, citing the decision in this case, (Railway Co. v. Schmidt, 106 Ind. 73, 5 N. E. Rep. 684,) on the former appeal, holding such paragraph insufficient; closing with the statement that "the_trial was upon an insufficient pleading. Judg ment should have been arrested in accordance with appellant's motion. Reserving all other questions in the record for discussion in a supplemental brief, this is respectfully submitted. There is not, nor does there purport to be, any discussion whatever of the question presented by the assignment of error as to the sufficiency of the special verdict, and no objection whatever is pointed out, or suggested. It is proper to say, however, that the present counsel for the appellant, who file the petition and brief for rehearing, did not file the former brief, and were not, so far as the record discloses, at that time connected with the case; nor does it appear that they have been derelict in their duties. Indeed, the record does not disclose any neglect on the part of any counsel connected with the case; for the point made and discussed in the original brief was well taken, and would have secured a reversal of the judgment had the record not been amended after it was filed. Presuming the omission to file an additional brief before the case was decided resulted from a necessary change of counsel for appellant, we have considered the question presented as to the sufficiency of the verdict. No question being made as to the sufficiency of the first paragraph of the complaint upon which the case was tried, the judgment must be affirmed upon this question, and no harm has resulted to the appellant by the failure to file a brief before the case was originally decided. It is contended that the special verdict states and contains mere recitals of evidence, and conclusions of law, and is not a finding of such facts as entitles the appellee to judgment. In this counsel are in error. may be some recitals and conclusions stated in the verdict which should not have been considered, and must be regarded as struck out; but, eliminating all such statements of evidence, and conclusions improperly contained in the verdict, yet it states such facts as entitled the appellee to judgment.

There

The action is brought by Frank Schmidt by his next friend. It is contended that the facts found show that the plaintiff's parents, who had the care and control of the plaintiff, then a child less than three

years old, permitted him to go unattended away from home, and upon the appellant's railroad track; and that the negligence of the parents will be imputed to the plaintiff, and prevent a recovery. Even if the negligence of the parents of a child can be imputed to the child, and prevent a recovery, when the action is in favor of the child, for damages for injuries sustained, (Railway Co. v. Wilcox, 24 N. E. Rep. 419; Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. Rep. 155,) yet the facts found in this case do not show any negligence on the part of the parents of the appellee. On the contrary, the facts found show that the mother of the appellee, who had charge of him, exercised the utmost caution, and looked after the child with great vigilance, and his entering upon the railroad track was in no way attributable to her negligence or carelessness, and he was injured upon a public street crossing. It is further contended that the facts found do not show the injury to have been caused by the negligence of the agents and servants of the appellant. We think otherwise. They show the employes in charge of a heavy freight train were making a running switch crossing the public streets in the city of New Albany, where the tracks were continually being crossed and recrossed by the public, and by children, which fact was well known to said employes, and that, at the time, they had no watchman on the front end of the train, and no precaution was taken by them to avoid injury to persons traveling upon said streets, and liable to cross the tracks at any time. The car which ran against the plaintiff was running detached from the train, and the injury occurred upon a street crossing. The brakeman was upon the back end of the car, and giving no heed to persons and children who might be crossing the track in front of the car, and could not see what was in front. See 2 Shear. & R. Neg. (4th Ed.) § 408; Butler v. Railroad Co., 28 Wis. 487. We have not deemed it important to set out all the facts found, as they clearly show negligence and want of caution to prevent injury to persons lawfully upon the public streets along which, and across which, they were running their trains and detaching cars, while the train was in motion, causing and allowing the cars to run across street crossings while detached from the train, and without any person to give warning of their approach. The petition for rehearing is overruled.

THAIN V. RUDISILL.

(Supreme Court of Indiana. Dec. 11, 1890.) ERROR IN DECREE-MIS DESCRIPTION-IN

FANCY.

1. A decree in an action to correct an erroneous description in a deed is not void because it misdescribes the premises, where reference is made therein to conveyance containing a good description.

2. A judgment in favor of plaintiff in an action to correct an erroneous description in a deed will not be held void on a collateral attack because of the minority of defendant when the suit was commenced, where he was of age when the judgment was rendered, and the court had juris

diction of the action, and proper notice was given defendant.

3. In such case defendant is bound by the judg. ment unless he has it set aside by direct proceed. ings for the purpose.

Appeal from superior court, Allen county; A. A. CHAPIN, Judge.

S. F. Swayne and L. M. Ninde, for appellant. Randall & Vesey, for appellee.

OLDS, C. J. The appellant brought this action against the appellce to recover certain real estate. Upon proper request, the court found the facts, and stated its conclusions of law. The questions presented for decision arise on the exceptions to the conclusions of law. The court found the facts as follows: "(1) On the 26th day of October, 1874, one John W. Marshall was the owner in fee-simple of the following described real estate, in Allen county, Ind., to wit: A tract of land situate in the north part of section four, in township thirty-one (31) north, of range twelve (12) east, bounded as follows: Commencing at the Indian boundary line adopted at the treaty of Greenville, at a point due south of a point eighty rods east of the north-west corner of said sec tion four; running thence north, to the north boundary line of said township thirty-one; thence east, along said township line, one hundred and twenty rods; thence south, to said Indian boundary line; thence southwesterly, along said boundary line, to the place of beginning, -containing forty acres of land. The said Marshall, being then the owner thereof, for a valuable consideration to him paid, to-wit, nine hundred dollars, in money, personal and real property, sold said premises to Frederick Rabb, and executed a deed intending to convey the same to the said Rabb; but, by mistake, the premises in said deed were described as follows: 'The north-east quarter of the north-east quarter of section four, township thirtyone north, of range twelve east, containing forty acres, in Allen county, Ind.,' instead of the correct description of the same. Said Rabb, being ignorant of the error in the description in the deed, and claiming title by virtue of such convey. ance, entered into possession of the land so purchased by him and intended to be conveyed, and occupied the same by himself and tenants until about the 1st day of December, 1882, when he was dispossessed, in the manner hereinafter stated. (2) On the 11th day of June, 1875, a mistake in the deed having been discovered, Rabb instituted proceedings in the Allen circuit court for the correction of the same. Marshall, the grantor, was at that time a non-resident, and notice of the pendency of the action was given by publication in a weekly newspaper for the proper length of time. At the September term of said court, to-wit, on the 11th day of September, 1875, Marshall not appearing to the action, judgment was rendered against him by default upon the complaint, and a decree entered thereupon ordering a correction of the deed, and appointing one Crane, as commissioner, to execute a deed, with a proper description, as prayed for in the complaint. In the complaint in said last-named action, the

the consideration of five hundred dollars, paid to him by said Christina; thereby intending to convey the tract of land in con. troversy by the following description: 'Forty acres of land west of a tract of land sold by John Marshall and wife to John McQuiston, and east of thirty-eight and ninety-eight hundredths (38 98-100) acres, sold by John W. Marshall to Elisha Marshall, in the fractional section four, township thirty-one north, of range twelve east, in Allen county, Ind.' (5) Prior to the execution of the deed to Christina, the said John W. Marshall did not by any act either affirm or disaffirm his prior deed to Frederick Rabb. (6) On the 4th day of March, 1878, Elizabeth Leichner, as a creditor of Frederick Rabb, instituted proceedings in the Allen circuit court against Frederick Rabb and Christina Rabb to set aside the conveyance made by John Marshall to Christin Rabb as fraudulent, and made with the intent to hinder and delay the creditors of Frederick Rabb; and on the 30th day of October, 1879, a decree was rendered in said proceeding in favor of the plaintiff, Elizabeth Leichner, declaring said deed fraudulent and void as against the creditors of Frederick Rabb, also render. ing judgment in favor of said plaintiff Elizabeth Leichner against said Frederick Rabb for the sum of six hundred and twelve dollars and thirty-two cents, ($612.32,) and costs of the suit. The decree also found that the money paid by Christina Rabb as a consideration for the deed to her by John W. Marshall was the property of her husband, Frederick Rabb, at the time the payment was made. (7) Afterwards, on the 10th day of November, 1879, a certified copy of the decree last named was issued to the sheriff of Allen county, by virtue of which, on the 27th day of December, 1879, the sheriff sold said premises at public auction to Adam Rudisill, the defendant in this case, and exccuted a certificate of purchase therefor. (8) Afterwards, without having received any other deed for the same, on the 13th day of April, 1881, the said Adam Rudisill instituted proceedings in the Allen circuit court to set aside the sheriff's said lastnamed sale, because of a defective description of the premises in the decree rendered therein. (9) In the proceedings by Elizabeth Leichner against Frederick Rabb and Christina Rabb, in the complaint and decree, the premises were described as follows: 'Forty acres of land west of a tract of land sold by John W. Marshall to John McQuiston, and east of thirty-eight & 98-100 acres sold by John W. Marshall to Elisha Marshall, and now owned by John F. Myers, and north of the Indian boundary line adopted by the treaty at Green ville in 1795, in fractional section four, township thirty-one north, of range twelve east,'and the land was levied upon and sold by the same description by the sheriff. In the proceedings to set aside the sale, a decree was entered, June 21, 1881, adjudging that the description of the premises by which the land was sold was imperfect and void for uncertainty, and passed no title, but that, by his purchase, Rudisill obtained a lien upon the real estate in controversy in this suit, and it was adjudged that the said

alleged true description of the premises was described as follows: 'Forty acres of land west of a tract of land sold by John Marshall to John McQuiston, and east of thirty-eight and ninety-eight one hundredths (38 98-100) acres, sold by John Marshall to Elisha Marshall, in fractional section four, in township thirty-one north, of range twelve east, situate in Allen county and state of Indiana,-and the same description was entered in the decree of the court. Crane, as the commissioner appointed by the court in said cause, on the 18th day of September, 1875, executed a deed describing the premises in said deed in the same words and figures in which they were described in the decree and complaint in said action. The deed so made by Crane, as commissioner, was approved by the court, and recorded in the office of the recorder of Allen county. Ind., on the 24th day of June, 1876. At the time of the sale and execution of the deed by John Marshall to Rabb, as aforesaid, and from thence to and subsequent to the time of the execution of the deed by Crane, one Elisha W. Marshall was the owner, by purchase, of land in the north part of section four, immediately west of and adjoining to the land sold by John Marshall to Rabb, and John McQuiston was the own. er by purchase of land in the north part of the section immediately east of and adjoining the land sold to Rabb, as aforesaid, and the deeds both to Elisha Marshall and to McQuiston were recorded in the office of the recorder of Allen county. Both of said deeds were prior in their dates to the deed executed by John Marshall to Frederick Rabb. (3) At the time John W. Marshall made the deed to Rabb he was under the age of twenty-one years, having been born on September 3, 1854. On the 1st day of November, 1875, August C. Trentman recovered a judgment in the Allen circuit court against said Frederick Rabh and Charles Noll for six hundred and thirty-one dollars and sixty-six cents, ($631.66,) and costs, for which judgment John Thain became replevin bail for stay of execution. On the 29th day of November, 1875, John Thain, as such replevin bail, paid said judgment and costs, and on the 23d day of April, 1883, the plaintiff, Trentman, assigned the judgment, in writing on the order-book of the court, to said John Thain. On the 31st day of December, 1883, said John Thain caused a writ of execution to be issued on said judgment, and to be placed in the hands of the sheriff of Allen county, who, on the 18th day of January, 1884, levied said writ on the lands as described in the complaint in this case, and, after duly advertising the same for sale, sold the same to said John Thain, on the 1st day of March, 1884, and executed to him a certificate of sale, and who, on the 28th day of February, 1885, sold and assigned said sheriff's certificate to the plaintiff, which assignment was entered on said certificate, and on the 2d day of March, 1885, the sheriff of said county executed a sheriff's deed to the plaintiff for said premises. (4) On the 10th day of September, 1877, the said John W. Marshall executed a warranty deed to Christina Rabb, wife of the said Frederick Rabb, for