ing in which it found that said board "did knowingly and designedly include in the valuation of said roadway the value of fences erected upon the line between said railway and the land of coterminous proprietors." In passing upon the question thus presented, the supreme court, at page 415, 118 U. S., page 1142, 6 Sup. Ct., 30 L. Ed. 118, said: "It appears, as already stated, from the evidence, that the fences were included in the valuation of the defendant's property, but under what head-whether of franchise, roadway, or roadbed-does not appear. Nor can it be ascertained with reasonable certainty, either from the assessment roll or from other evidence, what was the aggregate valuation of these fences, or what part of such valuation was apportioned to the respective counties through which the railroad was operated. If the presumption is that the state board included in its valuation only such property as it had jurisdiction under the state constitution to assess, namely, such as could be rightfully classified under the heads of 'franchise,' 'roadway,' 'roadbed,' 'rails,' or 'rolling stock,' that presumption was overthrown by proof that it did in fact include under some one or more of those heads the fences in question. It was then incumbent upon the plaintiff, by satisfactory evidence, to separate that which was illegal from that which was legal,-assuming, for the purposes of this case only, that the assessment was in all other respects legal,-and thus impose upon the defendant the duty of tendering, or enabling the court to reuder judgment for, such amount, if any, as was justly due." It was further held by the court that the whole assessment was invalid, as it could not be determined what was the amount of that part of the assessment that was valid. It is our conclusion, as it is alleged that the good will of appellees' business was assessed, and as there is no means of determining the amount of that portion of the increase that the state board of tax commissioners had authority to add, that the action of said board, as an entirety, in so far as it added to appellees' assessment, was properly held to be invalid. Appellees' counsel have argued the question as to an unlawful discrimination against appellees in the administration of the tax laws. It is settled that the court will not decide a constitutional question when it can perceive another ground on which it can properly rest its decision. We therefore decline to consider this question. Judgment affirmed. (159 Ind. 52) CARTER, Drain Construction Com'r, v. BULLER et al. (Supreme Court of Indiana. June 17, 1902.) DRAINS CONSTRUCTION-ACCOUNT OF COMMISSIONER-ITEMS-TRIAL OF ISSUE AS TO COMPLETION OF DRAIN-COSTS. 1. A petition was filed, reciting that the construction commissioner of a drain was about to accept it as completed, when it was not, and the commissioner answered, claiming that the drain was complete. On his final account he claimed items for sums paid the engineer for superintending additional work done after the trial of the issue raised by his answer, for clerk's costs on the trial, and for sums paid the engineer appointed by the court. Held, that his payments without first obtaining the approval of the court, as required by Burns' Rev. St. 1901, § 5626, were unauthorized, and the propriety thereof was left an open question. 2. Where, on the final accounting of a drain construction commissioner, he presented an item for a sum paid the county surveyor for services in superintending additional work, and the court found against the allowance, it would be presumed on appeal that the surveyor's services were uncalled for. 3. A petition was filed, reciting that the construction commissioner of a drain was about to accept a ditch as complete, while in fact it was not. The commissioner filed an answer setting up that the drain was complete, and, on his final accounting, presented a claim for clerk's costs on the trial of the issue, which was disallowed. Held, that a contention that the claim should be allowed because no costs were adjudged against the commissioner was of no merit; the costs being simply taxed by the clerk without a judgment against any one, and being paid by the commissioner without any action authorizing him to do so. 4. A petition was filed, reciting that the construction commissioner of a drain was about to accept a ditch as complete, while in fact it was not. The commissioner filed an answer setting up that the drain was complete, and special engineers were appointed by the court to determine the question, and reported it incomplete, and a completion was then ordered. On his final accounting he presented claims for amounts paid the engineers, which were disallowed. Held, that a contention that the amounts paid the engineers should have been allowed because they were appointed by the court, and their claims approved before payment, was of no merit; their prior approval by the court being immaterial, as the expenditures were necessary to enable the court to determine the controversy precipitated by the commissioner. 5. On the presentation of the final account of a drain construction commissioner, he claimed compensation for 144 days' services. It appeared that, within 6 months after the ditch was assigned to him for construction, it was represented to the court by a landowner that he was about to accept it, whereby, if the work had been commenced at the expiration of the time required for notice, he had not been engaged on it 144 secular days. Held not error to allow a moiety of the claim, instead of the whole, as presented. Appeal from circuit court, Grant county; Wm. H. Carroll, Special Judge. Proceedings for the allowance of the final account of Solomon Carter as drain construction commissioner. Certain items of the account were disallowed, and Carter appealed. Transferred from appellate court under section 1337u, Burns' Rev. St. 1901. Affirmed. Steele & Kersey, for appellant. St. John & Charles, for appellees. HADLEY, J. Appellant filed his final report as construction commissioner of a drain established under the provisions of the act of 1885 (section 5022 et seq., Burns' Rev. St. 1901). Appellees, being interested landowners, filed exceptions to divers items claimed as credits, which exceptions were sustained to items 4, 5, 6, 7, and S. The material facts are these: June 30, 1893, appellant was appointed construction commissioner, and in due time contracted the work to be performed according to plans and specifications. January 2, 1894, one Hancock, an interested party, filed in court his petition reciting that the commissioner was about to accept said ditch as completed, while in fact it was incomplete, and requested the court to appoint and send out an engineer to verify the work. January 16, 1894, upon appellant's motion, the court struck out Hancock's petition. On June 11, 1804, numerous other interested landowners filed a petition praying the court to grant an order against appellant to show cause why he did not, as commissioner, proceed to complete said drain in accordance with the plans and specifications. The order was issued, and on September 17, 1894, appellant appeared to the petition, and filed an answer thereto in two paragraphs: (1) A general denial; and (2) an argumentative denial. The completion of the drain being thus put in issue,-affirmed by appellant and denied by the landowners,-it was submitted to the court for trial. The contractor, whose duty it was to construct the drain according to the specifications, does not seem to have been made a party or to have been brought into the case in any way. After hearing witnesses and other evidence pro and con for four days, the case was taken under advisement, and at a subsequent term, to wit, December 12, 1895, "in accordance with the agreement of the parties herein," the record recites, the court appointed three disinterested civil engineers, and ordered them, upon due examination, to report to the court, without unnecessary delay, whether said ditch was constructed in substantial compliance with the plans and specifications, and, if they found it was not, to report specifically the particulars wherein it was incomplete. December 23, 1895, the three engineers submitted their report, to the effect that "we have carefully surveyed and examined said ditch, and find that it has not been constructed in substantial compliance with the plans and specifications thereof," and setting forth that, out of the total number of 238 stakes, they found at 161 the ditch was too narrow by spaces running from one-tenth of a foot to six feet and a half, and that two trees were not removed as required by the specifications. Upon this report the court found that the drain was not completed, and on April 8, 1896, ordered appellant to proceed forthwith to complete the same in accordance with the report of said three engineers. The miscellaneous costs in the above-mentioned trial were $226, and the costs and charges allowed by the court to the three special engineers sent out to survey and report upon the condition of the work were $125.25. February 3, 1897, appellant, upon order of the court to report, reported the completion of the ditch in accordance with the plans and specifications and the court's last order, whereupon the landowners object And ed to this report upon the ground that appellant had done nothing whatever to complete the ditch since the court's order of April, 1896, and that the same was still incomplete. upon being required by the court, appellant answered certain interrogatories propounded by the landowners with their last objections, in substance as follows: Since April, 1896, there has been no excavation nor widening nor sloping of the banks of the ditch, for the reason that careful measurements were made by him (appellant), together with other persons fully competent to make such measurements, and the ditch was found to be its full width and depth as required by the plans and specifications, and that no trees had been removed, for the reason that there were no trees to remove, as shown by the plans and specifications. Upon these answers the court sustained the objections to appellant's report, and the latter was again ordered to proceed forthwith to complete the ditch in accordance with the order of the court made in April, 1896. November 13, 1897, appellant again reported the completion of the ditch in accordance with the court's order of April, 1896. This report was accompanied by the verified certificate of Robert Thomas, deputy county surveyor, that the additional work required by the order of 1896 had been fully performed under his superintendence. This report was approved, and said ditch adjudged completed. Afterwards appellant filed his account as construction commissioner. Among other items for which he claims credit are the following: Item 15, engineering done by Robert Thomas (alleged to have been for superintending additional work required), $104; item 18, paid Steele & Kersey, attorneys (alleged to have been for professional services in the trials over the fact of completion of the drain), $110; item 23, paid clerk costs (alleged to have been the miscellaneous costs accrued in the first trial of facts as to completion), $226.60; item 25, paid the three engineers appointed by the court to resurvey and verify the work, $129.25; item 26, for 144 days employed by appellant in the construction of the work, $3 per day, $432. The first four of these items were wholly disallowed, and the last disallowed for onehalf of the amount. The action of the court upon these items presents the real question in the case. With respect to the first four items, they were for disbursements in carrying on the controversy that arose over the completion of the ditch. Was appellant justifiable in maintaining the controversy? He was appointed by the court to execute its order, and nothing more or less. He was the court's instrument to construct for the landowners, who were required to pay the cost, such a ditch as they requested and the court had ordered. He had no authority whatever to depart from the specific depths and dimensions prescribed in the report of the locating commissioners. He stood for the landowners in contracting and in superin sented to and allowed by the court. His failure to first procure the approval of the court left the propriety of payment an open question, to be decided when credit therefor was claimed. As to item 15 (being for amount paid the county surveyor for services in superintending additional work required), the expenditure can only be justified upon the ground that that amount of skilled labor was reasonably necessary to the proper execution of the work. Whether or not it was necessary was a question of fact to be determined from the evidence, and, the court having found against the allowance, we must presume that the surveyor's services in that particular were uncalled for. The court was clearly right in disallowing items 18, 23, and 25. Whatever sums appellant paid to attorneys, or expended as costs, or caused others to expend, in his strange effort to prevent the landowners from enforcing a proper construction of the drain, were not chargeable against the ditch assessments. The allowance of the claim for costs is urged for the reason that no judgment for costs was rendered against appellant. It is a sufficient answer to say, neither was there a judgment for costs rendered against the drainage fund. The costs were simply taxed in the proceeding by the clerk without judgment against any one, and were paid by appellant without any action of the court authorizing him to do so. tending the work, and it was his plain duty to see that the contractor performed his agreement, and constructed the drain according to the plans and specifications which formed the basis of the contract. In short, his relation to the enterprise was such as would not permit him, at the expense of the ditch fund, to assert any fact or interest adverse to the rights of those he represented. When, therefore, the landowners made plausible complaint that the ditch was not so constructed, appellant, before acceptance, should have had the same examined and reported upon by a competent disinterested engineer, or taken such other steps as would have reliably proven the true state of the work. Appellant, however, without the slightest effort (appearing from the record) to test the work or to inquire into the grounds for the complaint, as he should have done, took up the battle of the contractor against the complaining landowners, went into court, joined issue with the complainants, and challenged them to prove that the ditch was not completed according to the specifications. Appellant's attitude drove the landowners into a choice between two alternatives. They could assent to the acceptance of the incompleted ditch, and thus be content with less than they had paid for, or undertake to establish its incompleteness before the court. The contest thus provoked was between the complainants and appellant as an individual. As a trustee for the land- It is also insisted that item 25, being for owners he could not employ the trust funds amount paid the three special engineers apin maintaining on behalf of a stranger a pointed by the court, should have been alright adverse to the beneficiaries of the fund. lowed, because the engineers were appointed In thus assuming to act as a volunteer for by the court, and their claims approved bethe contractor he subjected himself to the fore payment. This prior approval by the usual rule for taxation of costs. The ob- court does not alter the case in this instance. stinacy of appellant is unaccountable. The claim was disallowed, not because the appears that 10 months after the court had services were needless, nor because the adjudged the ditch incomplete, and had or- amount paid was unreasonable, but because dered him to proceed without unnecessary the appointment and expenditure were, by delay to complete it in accordance with the the unwarranted conduct of appellant, made report of the three special engineers, appel- necessary to enable the court to correctly delant, upon order of the court to show cause, termine the controversy precipitated by him. reported that the drain was completed in ac- Whether the parties did, or not, agree to the cordance with the order and plans and speci- appointment, is of no consequence. The fications, and at the same time, in his an- court made the appointment, as it had the swer to interrogatories, admitted that no right to do, with or without an agreement. work had been done on the ditch since the It cannot be doubted that the court had powcourt's order, for the reason that, upon a er, as it has in all doubtful cases, to take careful examination by himself and others, such reasonable steps as will bring accessiit was found that the ditch already met all ble, trustworthy evidence before it, and adthe requirements of the plans and specifica-judge the costs thereof as an incident of the tions. And furthermore, upon the court's peremptory rule to proceed forthwith to comply with the order of the court, he, upon his own motion, and without the advice or approval of the court, employed the county surveyor to take charge and superintendence of the additional work required, and paid him therefor $104; being $4 per day for 26 days' work. Appellant had no authority under the iaw (see section 5626, Burns' Rev. St. 1901) to pay any of the items in controversy here until the claim therefor had first been pre It trial. With respect to item 26, it is contended that the court erred in reducing appellant's service claim from 144 to 72 days; the agreement being that since all the evidence given touching said service was submitted by appellant, in person, and which was all direct and positive that he actually rendered 144 days of necessary service in the construction of the ditch, the court had no legal right, under the evidence, to make an allowance for a moiety only; that the evidence estab lished the whole claim with the same force that it established a part, and the finding was therefore arbitrary and unwarranted. We are unable to agree with this proposition. The court was not bound to accept the statements of appellant as absolutely true, though a credible witness and uncontradicted, except by inferences arising from the facts and circumstances before the court, which attended and were associated with the facts related. Among other things, it appears that, within 6 months after the ditch was assigned to appellant for construction, a landowner represented to the court that he (appellant) was about to accept it from the contractor in an incomplete condition. From this we may infer-assuming that he con. tracted the construction at the expiration of 14 days' notice required by the statute that the work was chiefly performed within 166 days. Deducting therefrom 25 Sundays, and we find that appellant claimed for more days' service than there were secular days employed in executing the body of the drain. It could hardly have been necessary for him to have been upon the work every day of its progress, and after making reasonable allowance for time spent in collecting assessments, and in attending court for purposes properly connected with the duties of his office, we are unable to say that it clearly appears that the allowance made by the court was for a less amount than it should have been. We cannot, therefore, disturb it. There are other questions presented, relating to the admission and exclusion of evidence, that we have not considered, for the reason that they are of such minor importance that they would not, if erroneous, warrant a reversal of the judgment, which is plainly right upon the merits. Judgment affirmed. (29 Ind. App. 471) VAN HOOK v. YOUNG'S ESTATE. (Appellate Court of Indiana, Division No. 2. June 26, 1902.) NEW TRIAL-MOTION-TIME OF FILING-TRIAL -GENERAL VERDICT-SPECIAL INTERROGATORIES-CONFLICT. 1. Under Rev. St. 1881, § 561, providing that application for new trial may be at any time during the term at which the verdict or decision is rendered unless it be rendered on the last day of the session or term, a motion not filed within the term will not be considered, no excuse being shown for delay, and none of the grounds thereof being alleged to have been discovered after such term. 2. In an action for services rendered in nursing and boarding decedent and managing his estate, answers to interrogatories that decedent and claimant lived in the same house as one common family, and that there was no agreement or understanding that claimant was to receive compensation for services or for board furnished, were inconsistent with the general verdict finding an implied promise. 3. In an action for services rendered in nursing and boarding decedent and managing his estate, there was a general verdict for plaintiff. In reply to special interrogatories 18 and 19 the jury found that claimant and dece dent lived together as one common family, and there was no understanding or agreement that claimant was to receive compensation for services rendered or for board furnished or care bestowed. The reply to interrogatory No. 40 found that the services were not rendered in return for the financial favors that decedent did for plaintiff from time to time, nor in consideration of the relationship, or love and affection growing out of the relationship. Held, that in view of the conflict between the answers to the first interrogatories and the general verdict, and the inconsistency between the answers to interrogatory No. 40 and the answers to the others, a new trial should be granted. 4. Though a special interrogatory is defective in form, if submitted to the jury and answered without objection it is not necessarily to be disregarded. Appeal from circuit court, Clark county; James K. Marsh, Judge. Proceedings by Jennie Y. Van Hook against the estate of Harriet B. Young, deceased. The court gave judgment for defendant on answers to special interrogatories, notwithstanding the general verdict for plaintiff, and she appeals. Reversed. E. C. Hughes, for appellant. W. H. Watson and M. Z. Stannard, for appellee. COMSTOCK, J. Appellant filed her verified claim against the estate of the decedent for services rendered the decedent in nursing, boarding, and caring for the decedent, and for services rendered in managing and attending to decedent's estate and business from November, 1891, to July, 1900, inclusive. Appellant and Harriet B. Young bore to each other the relation of niece and aunt. It is not claimed that there was an express con tract either for board or care or for attending to the business of decedent. The cause was put at issue, and upon trial a verdict in favor of appellant for $2,100 was returned. The jury, with the general verdict, returned answers to interrogatories. Upon the facts specially found, upon motion of appellee, the court rendered judgment in favor of the estate, notwithstanding the general verdict. Appellant assigns as error the action of the court in overruling her motion for judgment on the general verdict, in sustaining appellee's motion for judgment on the answers to interrogatories, and in overruling appellant's motion for a new trial. The verdict was returned on March 21, 1901, the thirtyninth judicial day of the February term, 1901. On the 31st day of March, the forty-seventh Judicial day of said term, appellee's motion for judgment was sustained, and judgment was rendered in favor of appellee. On April 15th, the first judicial day of the April-the following--term, 1901, appellant's motion for a new trial was filed and overruled. Section 561, Rev. St. 1881, is as follows: "The application for a new trial may be made at any time during the term at which the verdict or decision is rendered, and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any term, then, on the first day of the next term of such court, whether general, special or adjourned." No excuse is shown for the failure to file the motion for a new trial during the term at which the verdict was returned. It is insisted by appellee, therefore, that the motion for a new trial and the reasons it set out, none of the reasons being alleged to have been discovered after the February term, and there being no agreement between the parties extending the time for filing the motion beyond the said February term, cannot be considered by this court. The insistence must be sustained. Smith v. Little, 67 Ind. 549; Railroad Co. v. Summers, 131 Ind. 241, 30 N. E. 873; Railroad Co. v. Maddux, 134 Ind. 571, 33 N. E. 345, 34 N. E. 511; Allen v. Adams, 150 Ind. 409, 50 N. E. 387; Shaffer v. Insurance Co., 17 Ind. App. 204, 46 N. E. 557; William Deering & Co. v. Armstrong, 18 Ind. App. 687, 48 N. E. 1045; Jacquay v. Hartzell, 1 Ind. App. 500, 27 N. E. 1105. In determining whether the answers to interrogatories are irreconcilably in conflict with the general verdict, we may dispose of the other specifications of error. The claim filed by appellant does not count upon, nor does appellant in argument ask to recover upon, an express contract. Appellant claims that the answers to interrogatories are not in conflict with the general verdict. Our attention is directed to interrogatories Nos. 11, 18, 19, and 40, and the answers thereto. They are as follows: "No. 11. Did the claimant and the decedent, Harriet B. Young, live together in the town of Charleston, in the same house, as one common family, from the month of November, 1891, up to July 20, 1900? Answer. Yes." "No. 18. Was there any agreement or understanding between the claimant, Jennie Y. Van Hook, and the decedent, Harriet B. Young, that said claimant should receive pay or compensation for her services rendered for decedent in looking after the business of decedent? Answer. No. No. 19. Was there any agreement, or understanding between the claimant and the decedent that claimant should receive pay or compensation for board furnished to, or care bestowed upon, decedent? Answer. No." "No. 40. Were the services rendered by claimant for decedent, and recited in the claim herein, rendered in consideration of the financial favors that decedent did for plaintiff from time to time, and in consideration of her relationship to decedent and the love and affection she entertained toward decedent, growing out of said relationship? Answer. No." It is found by answer to the eleventh that claimant and decedent did live in the same house as one common family. By the eighteenth, that there was no agreement or understanding between the decedent and claimant that the claimant was to receive pay or compensation for services rendered for decedent in looking after her business. The general verdict found that there was an implied contract to pay for The such services. The conflict between the two is irreconcilable. The nineteenth finds that there was no contract, express or implied, that claimant should be paid for board furnished to, or care bestowed upon, decedent. The general verdict finds that there was an implied promise to pay for board furnished decedent. Unquestionably there is as to the item of board an irreconcilable conflict between the two. But it is claimed by appellant that the questions and answers are not so specific as to cover the averments of the complaint for nursing through all sickness and managing decedent's estate and transacting all her business. Besides, it is contended by appellant not only that they do not conflict with the general verdict, but that they are manifestly inconsistent with interrogatory No. 40. To that interrogatory the jury answered that the services in question were not rendered in consideration of the financial favors that the deceased did for the plaintiff, nor in consideration of her relationship to decedent, nor out of the consideration of "love and affection she entertained toward decedent growing out of said relationship." Eliminating the consideration of financial favors received, relationship, love and affection, there remains only the expectation of reward. answer to this interrogatory tends strongly to show an implied agreement, and so is inconsistent with the theory that the jury intended to find, in answer to interrogatories 18 and 19, supra, that there was no implied promise. Counsel for appellee urge that said interrogatory No. 40 should be disregarded, for the reason that it is double in form; that if separated into two questions, one of them might have been answered in the affirmative; that if this is true the negative answer was obtained by uniting two questions. An interrogatory to the jury should be so framed as to present distinctly a single material fact involved in the issues. It would be proper for the court to reject an interrogatory not complying with the rule; but where an interrogatory is propounded without objection and answered, it does not necessarily follow that it must be disregarded. The verb "to nurse," used with reference to an adult, conveys the idea that the object of care is sick, or is an invalid; it means more than general watchfulness. We can readily understand, in view of the general verdict, how the jury may not have understood the word "nurse" in its most comprehensive sense, and so gave an answer not intended. Looking at the whole record, considering the inconsistency of certain of the answers to interrogatories with one another and the conflict of some of them with the general verdict, we are of the opinion that the ends of justice will be best served by a retrial of the issues. The judgment is reversed, and the trial court is directed to sustain a motion for a new trial if filed within 60 days from July 1, 1902. |