ARTICLE 2.- RULES OF CONSTRUCTION.

SEC.

240.

Construction of statutes.

240. Construction of statutes.

Under the ninth and tenth clauses of section 240 of Burns' R. S. 1901, the names of voters to remonstrances against the granting of licenses to sell intoxicating liquors may be signed under a power of attorney executed by such voters. Cochell v. Reynolds, 156 Ind. 14.

If a statute authorizes a municipal corporation to improve a street by grading and paving the same, no authority exists for grading the street without paving it and to assess the expense against adjacent property. Taylor v. Patton, 160 Ind. 4.

The word "fees" as used in the fee and salary statute does not include the per diem allowed to county officers who act as members of the county board of review. Seiler v. State, 160 Ind. 605.

The words of a statute will be construed in their plain, ordinary, and usual sense, unless such a construction will defeat the manifest intent of the legislature. White v. Furgeson, 29 App. 144; Coffinberry v. Madden, 30 App. 360.

The words "wearing apparel” as used in section 2417, Burns' R. S. 1901, directing the distribution of the wearing apparel of a decedent, do not include the jewelry of the decedent. Coffinberry v. Madden, 30 App. 360.

ARTICLE 3.-REPEAL AND EXCEPTIONS.

SEC. 243.

Vested rights.

243. Vested rights.

The statute providing that no vested rights, or suits instituted, under existing laws shall be affected by the repeal thereof, does not apply to the right given by statute to appeal to a court of error. Lake Erie Ry. Co. v. Watkins, 157 Ind. 600.

CHAPTER 2.

CIVIL PROCEDURE.

Section numbers to notes refer to Revised Statutes of 1901.

The statute abolishing the distinction between actions at law and suits in equity, does not abridge the inherent powers of courts, nor affect the rights. of parties, or the remedies formerly given, further than to change, in some instances, the means by which the remedy may be obtained. Emerick v. Miller, 159 Ind. 317.

The code applies the same rules as to pleading and practice in actions at law or suits in equity that are tried before the court. Terre Haute R. R. Co. v. State, 159 Ind. 438.

If lands are conveyed which are in the possession of a tenant, a suit for possession must be brought in the name of the grantee or owner, although the grantor agreed that he would deliver possession at the end of the tenancy and the tenant was to remain the tenant of the grantor until possession was delivered. Holliday v. Chism, 25 App. 1.

When a person promises to pay a sum of money to a third person, such person may sue the promisee to recover the money. Bryson v. Collmer, 33 App. 494.

252. Executors, trustees, suits by.

If a municipal corporation enters into a contract for the benefit of the inhabitants generally of the corporation, it becomes the trustee of an express trust and may sue to enforce such contract. Muncie Gas Co. v. City of Muncie, 160 Ind. 97. When an action is brought by a trustee, the name of the cestui que trust should be disclosed by the complaint. Marion Bond Co. v. Mexican Coffee Co. 160 Ind. 558. Beneficiaries of an express trust are in court whenever the trustee is in court. Hord v. Bradbury, 156 Ind. 30.

The trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted. Green v. McCord, 30 App. 470.

An action upon the bond of a county auditor to recover money illegally allowed and paid to such officer is properly brought on the relation of the county board. Nowlin v. State, 30 App. 277.

A taxpayer of a county can not sue on the bond of a county officer in his own name as an individual, and also for the general benefit of all the tax payers of the county. State v. Holt, 163 Ind. 198.

261. Poor person, attorney for.

Courts have no power to allow fees to attorneys appointed for poor persons in criminal actions beyond the appropriations allowed therefor by county councils, and such attorneys can not sue a county for such services and obtain a mandate against the county council to compel an appropriation for the purpose of paying such claims. Board v. Mowbray, 160 Ind. 10.

263. Who plaintiffs.

If the executor of a will has a personal interest in the will as an heir, such executor may sue in his representative capacity jointly with himself in his individual capacity to obtain a construction of such will. Hughes v. Hughes, 30 App. 591.

An administrator with a will annexed, and the devisees under the will, may join in a suit against a lessee of devised lands for damages and to prevent such lessee from committing waste. Halstead v. Coen, 31 App. 302.

267. Child, injury, death, suit for.

If a mother sues to recover damages on account of the death of or injury to her minor child, it must be alleged and proven that the father of the child is either dead, in prison, or that he has deserted his family. Chicago Stone Co. v. Nelson, 32 App. 355.

269. Defendants to actions.

In an action against a railroad company to obtain a judgment declaring a forfeiture of the franchise of such company, a lessee of the road of such company is properly joined as a defendant. Eel River R. R. Co. v. State, 155 Ind. 433.

Hughes v.

If an executor of a will has an individual interest in a suit brought by the executor he may be made a defendant to the suit in his individual capacity. Hughes, 30 App. 591.

270. Joint interest, suit by one for all.

One taxpayer of a county may sue to recover money for the benefit of the county when the board of county commissioners refuses to bring such suit after a proper demand made therefor. Zuelly v. Casper, 160 Ind. 455.

One taxpayer of a county can not sue jointly in his own name and for his own benefit, and also for the benefit of all the taxpayers of a county to recover money due the county. State v. Holt, 163 Ind. 198.

If persons who should be joined as plaintiffs in an action are made defendants, the complaint should set forth the reasons for making them defendants. Chicago Ry. Co. v. Lane, 26 App. 535.

272. Death, abatement, substitution.

If the plaintiff in an action to recover money under a contract dies before judgment, his administrator may be substituted as plaintiff in the action. Columbian .Ass'n v. Walker, 26 App. 25.

If a defendant in an action relating solely to personal property dies before judgment, his personal representative may be substituted as a party defendant. Wilkinson v. Vordermark, 32 App. 633; Trent v. Edmonds, 32 App. 432.

If a party to an action relating to real estate dies after judgment and before an appeal is taken, the heirs of such party, and not his personal representatives must be made parties to an appeal. Rich Grove Tp. v. Emmett, 163 Ind. 560.

273. Making new parties.

Courts have a wide latitude in making new parties to actions, and where full and complete justice can not be done without the bringing in of new parties, they should be brought in. Trent v. Edmonds, 32 Ind. 432.

274. Interpleader, notice.

The section of the code providing for the remedy by interpleader creates no new cases for interpleader, but all cases falling within its provisions is a substitute for the equitable remedy by independent suit, and is governed by the same rules. Northwestern Ins. Co. v. Kidder, 162 Ind. 382.

If a life insurance company delivers to the beneficiary named in a policy a check in payment of the policy and the same is surrendered, such company, in a suit on such check, can not set up by way of interpleader that the creditors of the insured were claiming an interest in the money represented by such check and obtain an order requiring them to interplead with the plaintiff in the suit. Northwestern Ins. Co. v. Kidder, 162 Ind. 382.

277. Assignee suing, defendants, defenses, set-off.

If a note made payable in a bank in this state is transferred before maturity without indorsement, the maker, in a suit by the assignee, may plead any defense that he might have pleaded in a suit by the payee of the note. First Nat. Bank v. Henry,

156 Ind. 1.

If the administrator of the estate of the assignor of a note transferred without indorsement is made a party to answer as to the interest of the assignor in the note, the statute permitting certain defenses to be proven by administrators without special answers does not apply. Johnson v. Johnson, 156 Ind. 592.

If a complaint by the assignee of a claim arising out of contract not transferred by indorsement in writing alleges that the assignor is dead, and that there is no executor or administrator of his estate within the jurisdiction of the court, such complaint is not demurrable on account of a defect of parties defendant. Boseker v. Chamberlain, 160 Ind. 114.

A failure to demur to a complaint because of a defect of parties, is a waiver of the objection that the assignor of a claim should have been made a party to answer as to his interest. Green v. McCord, 30 App. 470.

In actions by the assignees of notes not governed by the law merchant, the maker may plead any defense that existed against the note at the time of or before notice of the assignment. Rosenthal v. Rambo, 28 App. 265.

If the maker of a note sets up a defense against the assignee of the note, the burden rests upon the maker to show by his pleadings that the defense was acquired before he had notice of the assignment of the note. Rosenthal v. Rambo, 28 App. 265.

It is not proper to join in a complaint paragraphs for a nuisance in maintaining a fence, and for the recovery of real estate and to quiet title thereto. Giller v. West, 162. Ind. 17.

When causes of action are improperly joined in separate paragraphs of a complaint, the paragraphs may be ordered docketed as separate actions and an appeal may be taken from a judgment rendered in any such action. Giller v. West, 162 Ind. 17.

280. Title papers, reformation, possession.

An action may be brought to reform deeds for land, and to recover possession of the land. Earl v. Van Natta, 29 App. 532.