Amendments to complaints which change the issues, or set up new claims, should not be permitted after the close of the evidence and the cause is submitted to the court or jury. Matthews v. Rund, 27 App. 641.

Courts have power to permit pleadings to be amended during the trial of a cause. Cleveland Ry. Co. v. Miles, 162 Ind. 646; Citizens R. R. Co. v. Heath, 29 App. 395.

399. Names, pleadings, correction, relief from judgments.

Courts have power to correct mistakes in pleadings so as to make the same correspond to the facts proven. Allen v. Hollingshead, 155 Ind. 178; Frankel v. Garrard, 160 Ind. 209; Cleveland Ry. Co. v. Miles, 162 Ind. 646; North British Co. v. Rudy, 26 App. 472; Efroymson v. Smith, 29 App. 451.

An application to set aside a judgment by default need only state the nature of the original cause of action, but the facts constituting the defense must be shown. Masten v. Indiana Car Co., 25 App. 175.

The merits of the original action are not to be considered in an application to set aside a judgment by default, and counter-affidavits as to the alleged facts relied on as a defense are not admissible. Masten v. Indiana Car Co., 25 App. 175.

Trial courts have a discretion in applications to set aside judgments by default, and the action of the court will be reversed on appeal only when such discretion is abused. Masten v. Indiana Car Co., 25 App. 175; Casto v. Shew, 32 App. 338.

If a judgment is taken by default against an insane person not under guardianship, such judgment should be set aside on the application of the guardian of such person, made in due time, and which shows a meritorious defense to the cause of action. Judd V. Gray, 156 Ind. 278.

If a city attorney permits a judgment to be rendered against the city without making a defense, the judgment should not be set aside when it is not shown that such attorney was guilty of fraud or deception. City of Noblesville v. Noblesville Gas Co., 157 Ind. 162.

If a plaintiff procures an officer to make a false return of service of process on a defendant, and a judgment is taken by default, the judgment should be set aside. Frankel v. Garrard, 160 Ind. 209.

If a summons is served by copy left at a place not the residence of the defendant, and he has no actual notice of the suit until after judgment by default, and he shows a good defense to the action, the judgment should be set aside. Knowlton v. Smith, 163 Ind. 294.

The production of false evidence on a trial is not such surprise as will entitle a party against whom a judgment is rendered to a new trial. Pepin v. Lautman, 28 App. 74.

Facts held insufficient to justify the setting aside of a judgment taken on default. Harlow v. First Nat. Bank, 30 App. 160.

Facts held sufficient to justify the setting aside of a judgment rendered in the absence of the defendant. Syfers v. Keiser, 31 App. 6.

401. Technical errors disregarded on appeal.

When it appears by the record that a cause has been fairly tried on its merits and a correct judgment rendered, technical errors will be disregarded on appeal. Harris v. Randolph Co. Bank, 157 Ind. 120; Wortman v. Minich, 28 App. 31; Trent v. Edmonds, 32 App. 432.

Technical errors in instructions will be disregarded on appeal when the verdict is clearly right on the evidence. Citizens R. R. Co. v. Hamer, 29 App. 426; Wampler . House, 30 App. 513: Morgan v. Jackson, 32 App. 169.

The record must affirmatively show that an erroneous instruction was harmless in order that the error will be disregarded on appeal. American Car Co. v. Clark, 32 App. 644.

402. Supplemental pleadings.

Where cause for the abatement of an action arises after the issues are closed, a plea in abatement may be filed as a supplemental pleading. Kokomo Ry. Co. v. Pittsburgh Ry. Co., 25 App. 335.

Supplemental pleadings are only allowed to set up facts occurring after the filing of the original pleading, and can not set up a new and independent action. Matthews v. Rund, 27 App. 641.

SEC.

ARTICLE 12.--ISSUES.

412. Trial of causes, law and equity.

412. Trial of causes, law and equity.

Parties can not demand a trial by jury in actions to enforce statutory liens against real estate. Tomlinson v. Bainaka, 163 Ind. 112.

Equitable causes that are triable only by the court may be referred to master commissioners to hear and report evidence and facts, and he may express his opinions as to the law, but his report and conclusions are advisory only, and the final hearing and disposition of the cause is for the court. Terre Haute R. R. Co. v. State, 159 Ind. 438. Parties can not as of right demand trial by jury of an action to enjoin and abate a nuisance. Shroyer v. Campbell, 31 App. 83.

ARTICLE 13.-CONTINUANCES.

SEC.

413. Continuance, affidavit.

413.

Continuance, affidavit.

An affidavit to procure a continuance on account of the absence of a witness should show that there is a probability of procuring the testimony of the witness within a reasonable time. Dunnington v. Syfers, 157 Ind. 458.

In order that a party may complain of the action of the court in granting a change of venue, it must appear that such party was injured by such action. Goodwin v. Bentley, 30 App. 477.

If the action of the court as to granting a change of venue is not assigned as a cause for a new trial, the ruling can not be reviewed on appeal. Citizens R. R. Co. v., Shepherd, 29 App. 412.

If the son of the judge before whom a cause is pending is interested in the subject matter of the suit, a party may demand a change from the judge, although such son is not a party to the suit. Smith v. Amiss, 30 App. 530.

Counter-affidavits are not admissible to disprove the causes alleged in an affidavit for a change of venue. Smith v. Amiss, 30 App. 530.

If the cause for a change of venue is first developed by the evidence on the trial of a cause, and a party delays several days afterwards to apply for a change, his application may be denied. Smith v. Amiss, 30 App. 530.

417. Change from county, number granted.

Consideration and discussion of the rule where a plaintiff is granted a change of venue from the county, but fails to perfect the same and dismisses the action, and then refiles the complaint in another court and obtains another change from the county. Citizens R. R. Co. v. Shepherd, 29 App. 412.

[Acts 1903, p. 332. In force March 9, 1903.]

418. Expenses of trial, payment.-1. That in all cases, civil or criminal, where there has been or shall be a change of venue from one county to another, the county from which the change of venue shall have been or shall be taken shall be liable to pay to the county to which such change shall have been or shall be taken, all such expenses as shall have been or shall be incurred by such county to which such change shall have been or shall be taken, in consequence of such change, including in criminal cases the expense of keeping the prisoner, if any, and in all cases the fees paid by such county to the jury trying the case, and any of the regular panel not engaged in such trial, allowance to bailiffs, and all other expenses necessarily incurred by such county, and consequent upon such change of venue and the trial of such cause; such expenses shall be audited and allowed by the court to which such cases shall have been changed, and such court shall certify such allowance to the auditor of the county from which the change of venue was first taken, and such anditor shall issue his warrant on the Treasurer of the county for the amount so allowed and certified; and it is hereby made the duty of the auditor of the county to which such change of venue is taken to collect from the county from which such change is taken the amount of expenses incurred by reason of such change by the county where the case is tried; for which he shall receive no compensation other than his salary, except necessary traveling expenses, to be paid out of the county revenues.

This act amends section 418, Burns' R. S. 1901.

See notes to such section.

If the court in which a cause is tried on a change of venue audits and allows the expenses of the trial that should be paid by the county from which the change was taken, such action is not conclusive against the latter county, and the amount of such expenses may be contested. Board v. Board, 27 App. 378.

Parties who require a struck jury in a cause are liable for all the expenses of such jury, and no part of such expense can be taxed against a county from which a change of venue is taken. Board v. Board, 27 App. 378.

If a struck jury is used in the trial of a cause on change of venue, the county from which the change is taken is liable for the fees of the regular panel of jurors kept in waiting during such trial. Board v. Board, 27 App. 378.

The amounts paid to the clerk, sheriff and bailiffs during their attendance at the trial of a cause on change of venue, are chargeable to the county from which the change was taken. Board v. Board, 27 App. 378.

If the trial of a cause on change of venue is had in a county where the per diem of

a short-hand reporter is not payable by the county, such per diem can not be charged to the county from which the change was taken. Board v. Board, 27 App. 378.

.

419. Change from judge.

Section 4 of the act of March, 1877, section 1446 Burns' R. S. 1901, relating to the appointment of special judges, was repealed by section 415 of the act of 1881, section 419 Burns' R. S. 1901. Kissel v. Lewis, 156 Ind. 233.

When an application is made for a change of judge, the selection of a special judge is entirely within the power of the regular judge, without regard to the wishes of the parties. Kissel v. Lewis, 156 Ind. 233.

The power of a special judge terminates when final judgment is entered in the cause he was appointed to try, and he has no authority under such appointment to hear a charge for contempt for violating an injunction which was included in such judgment. Kissel v. Lewis, 27 App. 302.

If a special judge is appointed to try a cause on account of the sickness of the regular judge, such judge may resume jurisdiction over the cause when he is physically able to do so. Chicago Ry. Co. v. Cunningham, 33 App. 145.

[Acts 1905, p. 164. In force April 15, 1905.]

419a. Change of judge, agreement.-1. That hereafter whenever a change of venue is taken from the judge, in any civil action, pending in any circuit or superior courts of this state, or in any case where the presiding judge of such court is disqualified from any cause to try such cause, if the parties to such action agree, in writing, upon some judge or member of the bar of any court in this state to try said cause which written agreement shall be filed with the clerk of said court-it shall then be the duty of the court to appoint such judge or attorney so agreed upon to preside as judge in said cause : Provided, The provisions of this act shall not apply to proceedings in divorce.

[Acts 1903, p. 343. In force March 9, 1903.]

419b. Special judge, appointment.-1. That in all civil actions where a change of venue is taken from the regular judge of any circuit or superior court of this state, it shall be the duty of said regular judge, within five days after such change of venue is applied for, to appoint a special judge to hear and try such action.

Special judges in criminal acts, section 1845.

419c. Failure to qualify, notice to governor.-2. Whenever any special judge heretofore or hereafter appointed to hear and try any civil action shall fail to qualify and assume jurisdiction of such action, within twenty days after the date of his appointment; or, if any special judge

so appointed and having qualified and assumed jurisdiction of such action does not attend at any subsequent term of the court in which said action is pending, then the appointment of such special judge shall thereupon be held to have been vacated and thereupon or in the event such appointment is not made within five (5) days, by said regular judge, the clerk of the court in which said action is pending shall forthwith upon the request of either party certify the facts to the governor and thereupon the governor shall appoint another special judge who shall have like jurisdiction.

419d. Change from special judge.-3. Whenever a change of venue is taken from such special judge appointed by the governor, such fact shall be certified to the governor by the clerk of such court, and the governor shall thereupon appoint another special judge who shall have like jurisdiction.

419e. Appointment by governor.-4. Whenever the governor is required to appoint a special judge as herein provided, he may appoint a judge of any circuit or superior court, or he may appoint any competent and disinterested attorney of this State in good standing to act as such judge, who, if he consents to serve, shall be qualified as other judges. The appointment of such special judge and his oath, where such is required, shall be filed with the clerk and entered on the order book.

SEC.

ARTICLE 15.-DEPOSITIONS.

423. Deposition, notice, contents, service.

423. Deposition, notice, contents, service.

A deposition taken on behalf of one joint party to an action is not competent evidence against the other joint party when he was not notified of the taking of the deposition nor present at its taking. Black v. Marsh, 31 App 53.

The statute providing that the proceedings of corporations may be proven by sworn copies of the records does not authorize the admission in evidence of the affidavit of the secretary of a building and loan association to prove the condition of the account of a mortgagor to the association in an action to foreclose the mortgage. Coppes v. Union Nat. Ass'n, 33 App. 367.