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281. Contract, joinder, separate trials.

A party to a contract may sue to have a mistake in the contract: corrected, and also to recover damages for a breach of the contract. Palmer Steel Co. v. Heat, Light Co., 160 Ind. 232.

ARTICLE 4.-CAUSES OF ACTION THAT SURVIVE.

SEC.

SEO.

282. Survival of actions.

285. Death, action for, damages.

282. Survival of actions.

An action against the director of a corporation for the liability created by statute for failure to require the capital stock to be paid into the treasury within the time fixed by statute, does not abate on the death of the defendant. Brown v. Clow, 158 Ind. 403.

A cause of action accruing under a sick benefit policy survives the death of the beneficiary named in the policy. Columbian Assn. v. Walker, 26 App. 25.

285. Death, action for, damages.

Section 285 of the code providing for the recovery of damages when the death of a person is caused by the wrongful act or omission of another is general in its application, and does not apply to causes of action given by the statute regulating the operation of coal mines, and the personal representative of a decedent can not maintain an action for the death of the decedent under the latter statute. Maule Coal Co. v. Partenheimer, 155 Ind. 100; Boyd v. Brazil Coal Co., 25 App. 157.

If the death of a person is caused by the wrongful sale to him of intoxicating liquors, the administrator of his estate can not sue under section 285 of the code to recover damages. Couchman v. Prather, 162 Ind. 250.

The administrator of the estate of a decedent whose death was caused by the wrongful act of another, is the only person who can sue to recover damages on account of such death under section 285 of the code. Lake Erie R. R. Co. v. Charman, 161 Ind. 95.

The provision in section 285 of the code limiting the time to two years within which an action shall be commenced to recover damages for the death of a person applies to infants the same as to adults, and such provision applies to actions brought under the coal mining act. Elliott v. Brazil Coal Co., 25 App. 592.

In a complaint by an administrator to recover damages on account of the death of the decedent being caused by negligence, it is not necessary to allege that the persons who will be entitled to receive the damages recovered had a pecuniary interest in the life of the decedent. Pennsylvania Co. v. Coyer, 163 Ind. 631.

The omission from a complaint of the names of children of a decedent in an action to recover damages for the death of such decedent will not deprive such children of their share of the damages recovered in such action. Duzan v. Myers, 30 App. 227.

ARTICLE 5.-SPECIAL CAUSES OF ACTION.

SEC.
290. Nuisance.

290. Nuisance.

Where several tenants occupy the same building, the obstruction by a portion of such tenants of access to the portion of the building occupied by other tenants, and the creation of offensive odors, may constitute a nuisance. Shroyer v. Campbell, 31 App. 83.

The erection of a high fence on one's own property, which shuts off the view and air and light of the adjoining property, does not constitute an actionable nuisance. Russell v. State, 32 Ind. 243.

ARTICLE 6.--ACTIONS, WHEN COMMENCED.

SEC.
293. Limitation of actions.
294. Limitation of actions.
295. No fixed limitation, rule.
297. Persons under legal disabilities.

SEC.
301. Concealment of action.
302. New promise, writing.
305. State not barred, sureties excepted.

293. Limitation of actions.

An action against the directors of a manufacturing company to recover damages on account of the issuing of a false report as to the financial condition of such company, or the failure to make reports, is governed by the six years’ statute of limitations. American Co. v. Ellis, 156 Ind. 212; Brown v. Clow, 158 Ind. 403.

An action to recover damages to land on account of the construction and operation of a railroad, is governed by the six years' statute of limitations. Southern Indiana Ry. Co. v. Brown, 30 App. 684.

294. Limitation of actions.

Actions to recover real estate sold at administrators' sale must be commenced within five years after the confirmation of the sale. Armstrong v. Hufty, 156 Ind. 606.

Actions against directors of corporations under sections 5060, 5076, Burns' R. S. 1901, are actions to recover penalties given by statute and must be brought within two years. Brown v. Clow, 158 Ind. 403.

Actions on the bonds of public officers for a neglect of duty must be brought within five years after the action accrues. State v. Walters, 31 App. 77.

295. No fixed limitation, rule.

Actions to enforce parol contracts to convey lands are governed by the fifteen years' statute of limitations. Horner v. McConnell, 158 Ind. 280.

A proceeding in equity to redeem lands which are held under a deed absolute on its face but which is claimed to be only a mortgage, is governed by the fifteen years' statute of limitations. Turpie v. Lowe, 158 Ind. 314.

297. Persons under legal disabilities.

If a cause of action accrues in favor of a minor during minority, the statute of limitations runs the same as it

other persons, but the tatute extends

pes as

the time for suing after the arrival of the minor of age. Bryson v. Collmer, 33

App. 494.

301. Concealment of action.

Ignorance of a right of action does not prevent the running of the statute of limitations, but something must be done to prevent a discovery of the cause of action. State v. Walters, 31 App. 77.

302. New promise, writing.

A new promise to pay a debt that is barred by the statute of limitations must be contained in a writing and can not be established by parol declarations. McBride v. Ulmer, 30 App. 154.

No acknowledgment of a debt is sufficient to take the debt out of the operation of the statute of limitations unless it can be inferred from the acknowledgment that a new promise was made. Park v. Park, 32 App. 642.

305. State not barred, sureties excepted.

The statute of limitations does not apply to the state in civil actions, nor, as a general rule, is its right of action lost by laches upon the part of its officers. Eel River R. R. Co. v. State, 155 Ind. 433.

ARTICLE 7.-ACTIONS, WHERE COMMENCED.

SEC.

313. Corporations, venue of actions.

SEC.
314. Venue, residents, non-residents as-

signees.

313. Corporations, venue of actions.

If a domestic railroad company surrenders its property and franchises under a perpetual lease to another company, and ceases to do business in this state and has no office or agency in the state, the legal residence of such company is in the county where its principal office was located when it ceased to do business. Eel River R. R. Co. v. State, 155 Ind. 433.

314. Venue, residents, non-residents, assignees.

An action to set aside the assignment of a lease, or of notes and a mortgage, may be brought in the county where the defendant resides although the lands covered by the lease and mortgage are situated in other counties. Mark v. North, 155 Ind. 575.

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316. Commencing action, complaint, summons.

A proceeding to contest a will is not deemed commenced until a complaint is filed and process is issued thereon as is required in ordinary civil actions. McGeath v. Starr, 157 Ind. 320.

318. Service on corporations.

If a suit is brought in the proper county against a railroad company, and there is no person in such county upon whom process may be served, then the process may be served in another county upon an agent who is authorized to receive and accept service of process.

Eel River R. R. Co. v. State, 155 Ind. 433.

319. Summons and service, when good.

If a summons issued by a justice of the peace is made returnable the next day after its issue, such summons is void, is not cured by section 319 of the code and service of such summons confers no jurisdiction on the justice over the defendant. Davis v. Osborn Co., 156 Ind. 86.

320. Notice by publication.

If a court holds that an affidavit made to obtain an order to authorize notice to be given to a non-resident defendant to be given by publication is sufficient, and orders publication of such notice, the jurisdiction of the court will not be affected although such affidavit is defective. Day y. Nottingham, 160 Ind. 408.

321. Personal service outside of state.

Personal service of a summons outside of the state is equivalent to publication, and confers jurisdiction on the court to determine the rights of parties in property within the jurisdiction of the court. Vichigan Trust Co. v. Probasco, 29 App. 109.

322. Service on part, proceedings had.

If suit is brought on a joint and several obligation, the taking of a judgment against one defendant does not so merge the cause of action as to prevent a subsequent judgment against other obligors. Corneille v. Pfeiffer, 26 App. 62.

327. Lis pendens record.

Persons purchasing land during the pendency of actions concerning the title thereof, must take notice of such actions without the filing of lis pendens notices. Rothschild v. Leonhard, 33 App. 452.

ARTICLE 10.-PLEADINGS.

SEC.

SEC.

341. Complaint, contents, paragraphs. 365. Exhibits with pleadings. 312. Demurrer, causes for.

307. Execution of instruments, proof. 343. Demurrer sustained for misjoinder.

verified plea. 344. Misjoinder not cause for reversal. 368. Dilatory pleas verified--Abatement. 345. Amendment of pleadings.

issue. 346. Objections by answer, waiver. 369. Consideration, failure, want, pleading. 348. Demurrer overruled, judgment. 371. Payment, demand at place. 350. Answer, contents, paragraphs. 372. Judgment of court of special juris351. Set-off.

diction. 353. Counterclaim.

373. Condition precedent, pleading, proof. 356. Set-off, counterclaim, dismissal. 375. Libel or slander, pleading. 359a. Personal injuries, contributory 379. Construction of pleadings, indefinite

negligence. 360. Reply, demurrer, paragraphs. 380. Evidence under general denial.

ness.

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382. Lost pleadings or papers, substitution. 399. Names, pleadings. correction, relief 385. Sham pleadings.

from judgments. 386. Allegations taken as true.

401. Technical errors disregarded on ap393. Personal judgment.

peal. 394. Variance, materiality, misleading. 402. Supplemental pleadings. 397. Imendments, delay, affidavit.

341. Complaint, contents, paragraphs.

Uncertainty in a complaint is not usually a cause for demurrer, but if the facts stated in a complaint are so vague and uncertain as not to state a cause of action a demurrer will lie. City of Logansport v. Kihm, 159 Ind. 68; South Chicago Ry. Co. v. Moltrum, 26 App. 550.

If a complaint by an employe to recover for personal injuries sets forth facts showing that the employer failed to comply with a statutory duty for the protection of employes the complaint will be sufficient. Buehner Chair Co. v. Feulner, 28 App. 479.

A complaint in an action to recover for an injury wilfully inflicted must show that the act was purposely done with the intent to inflict wilfully and purposely the particular injury complained of. Walker v. Wehking, 29 App. 62.

If a complaint to foreclose a mortgage does not allege or state facts which show that the defendants have, or claim an interest, in the subject matter of the suit, no cause of action is shown against such defendants. Huff v. Clark, 33 App. 606.

If a complaint fails to state in the title the name of the court in which the action is brought, such defect is one of form and will not be available on appeal. Citizens' R R. Co. v. Shepherd, 30 App. 193.

342. Demurrer, causes for.

The statute providing that want of legal capacity to sue shall be cause for demurrer to a complaint, means that the plaintiff is not entitled to sue by reason of some personal disability, or that he has no title to the character in which he sues. Coddington v. Canaday, 157 Ind. 243.

A demurrer for want of facts will not raise the question of a defect of parties. Baseker v. Chamberlain, 160 Ind. 114.

A demurrer to a complaint for want of facts will raise the question whether the plaintiff sues in his individual or in a representative capacity. Toner v. Wagner, 158 Ind. 447.

A demurrer to a complaint for want of facts will raise the question that the action is prematurely brought. Middaugh v. Wilson, 30 App. 112.

The statute providing that a defect of parties shall be cause for demurrer means that there are too few, and not too many, parties. Frankel v. Garrard, 160 Ind. 209.

If a defect of parties is not raised in some proper manner, the question is considered waived. Ayres v. Foster, 25 App. 99.

The question of a misjoinder of causes of action is not raised by a demurrer for want of facts. Board v. Redifer, 32 App. 93.

343. Demurrer sustained for misjoinder.

li a demurrer is sustained for a misjoinder of causes of action, the court may order the separate paragraphs to be docketed as separate actions and an appeal may be taken from a judgment rendered in any of such actions. Giller v. West, 162 Ind. 17.

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