897. Objections-Pleadings-Appeal.-5. Any defendant may object to such proceedings on the ground that the court has no jurisdiction either of the subject matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections. Such objections shall be in writing, separately stated and numbered, and shall be filed not later than the first appearance of such defendant; and no pleadings other than the complaint and such statement of objections shall be allowed in such cause, except the answer provided for in section eight of this act: Provided, That amendments to pleadings may be made upon leave of court. If any such objection shall be sustained, the plaintiff may amend his complaint or may appeal to the supreme or appellate court from such decision, as and in the manner that appeals are taken from final judgments in civil actions, of which appeal all the parties shall take notice and by which they shall be bound. But if such objections are overruled the court, or judge, shall appoint appraisers as provided for in this act; and from such interlocutory order overruling such objections and appointing appraisers such defendants, or any of them, may appeal to the supreme or appellate court from such decisions as and in the manner that appeals are taken from final judgments in civil actions, upon filing with the clerk of such court a bond with such penalty as the court, or judge, shall fix, with sufficient surety, payable to the plaintiff, conditioned for the diligent prosecution of such appeal and for the payment of the judgment and costs which may be affirmed and adjudged against the appellants. Such appeal bond shall be filed within ten days after the appointment of such appraisers. All the parties shall take notice of and be bound by such appeal. The transcript shall be filed in the office of the clerk of the supreme court within thirty days after the filing of the appeal bond. Such appeal shall not stay proceedings in such cause.

See notes to sections 908 and 5160, Burns' R. S. 1901.

If a court refuses to appoint appraiser to assess damages for lands taken under the right of eminent domain, no appeal lies from the order of the court. Lafayette Ry. Co. v. Butner, 162 Ind. 460.

898. Appraisers Oath-Duties.-6. Such appraisers shall take an oath that they have no interest in the matter and that they will honestly and impartially make such assessment. They shall determine and report: First. The value of each parcel of property sought to be appropriated, and the value of each separate estate or interest therein;

Second. The value of all improvements thereon pertaining to the realty;

Third. The damages to the residue of the land of such owner or owners to be caused by taking out the part sought to be appropriated;

Fourth. Such other damages as will result to any persons or corporation from the construction of the improvements in the manner proposed by the plaintiff;

Fifth. In case the land is sought to be taken by a municipal corporation for a public use that confers benefits on any lands, the report shall also state the benefits which will accrue to each parcel of property, set opposite each description of the same, whether described in the complaint or not. In estimating the damages specified in the foregoing first, second, third and fourth clauses, no deduction shall be made for any benefits that may result from such improvement. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the service of the notice provided in section. three, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, except as to the damages stated in the fourth clause hereof.

See section 922, Burns' R. S. 1901, and notes.

In assessing damages for lands taken for a right of way for a railroad, the benefits accruing to the landowner by the construction of the road can not be considered. Chicago Ry. Co. v. Curless, 27 App. 306; Chicago Ry. Co. v. Winslow, 27 App. 316.

899. Payment of damages.-7. If the plaintiff shall pay to the clerk of such court the amount of damages thus assessed, it shall be lawful for such plaintiff to take possession of and hold the interest in the lands so appropriated for the uses stated in such complaint subject to the appeal provided for in section five of this act. But the amount of such benefits or damages shall be subject to review as provided in the next section.

See notes to sections 913, 914, Burns' R. S. 1901.

900. Appeal Procedure on trial.-8. Any party to such action aggrieved by the assessment of benefits or damages, may file written exceptions thereto in the office of the clerk of such court in vacation, or in open court if in session, within ten days after the filing of such report, and the cause shall further proceed to issue, trial and judgment as in civil actions; the court may make such further orders, and render such findings and judgments as may seem just. Such judgment as to benefits or damages shall be appealable by either party as in civil actions to the appellate or supreme court.

See section 908, Burns' R. S. 1901, and notes.

No appeal lies from an order of court refusing to appoint appraisers to assess damages. Lafayette Ry. Co. v. Butner, 162 Ind. 460.

901. Costs.-9. The costs of the proceedings shall be paid by the plaintiff, except that in case of contest, the additional costs thereby caused shall be paid as the court shall adjudge.

902. Damages-Failure to pay-Forfeiture.-10. Should the person, corporation or other body seeking such appropriation fail to pay the damages appraised within a reasonable time after the report of the appraisers is filed, in case no exceptions are filed thereto, or fail to pay the

judgment and costs rendered against it in the circuit or superior court within a reasonable time after rendition, or, in case of appeal, affirmance of the judgment, or fail to take possession of such land and adopt it to the use for which it was appropriated within five years from payment of the award or judgment, such person, corporation or other body shall, except where a fee simple is taken, forfeit all rights in and to such real estate as fully and completely as though no such appropriation had been made. An action to declare such forfeiture may be brought by any person in interest, or the question of such forfeiture may be raised by direct allegation in any subsequent proceedings by any other person, corporation or other body to appropriate such property for a public use, to which proceedings such person, corporation or other body seeking the former appropriation in lieu thereof is made a party.

See section 913, Burns' R. S. 1901, and notes.

903. Lands already appropriated.-11. Any person having an interest in any land which has heretofore been or may hereafter be taken for any public use, without having first been appropriated under this or any prior law, may proceed to have his damages assessed under this act, substantially in the manner herein provided.

See section 921, Burns' R. S. 1901, and notes.

904. Repeal.-12. All laws and parts of laws in conflict with the provisions of this act are hereby repealed: Provided, That this repeal shall not affect pending proceedings, but such proceedings may be completed as if this act had never been passed; and Provided further, That this act shall not be construed to repeal an act entitled "An act in relation to the crossings of street railroads, interurban street railroads, or suburban street railroads and railroads, and declaring an emergency,' approved March 3, 1903, but such proceedings may be instituted and carried to completion under such act as though this act had not been passed.

In certain cases an action by attachment may be prosecuted whether the cause of action be due or not. Trent v. Edmonds, 32 App. 432.

930. Order, quashing writ.

The quashing of a writ of attachment does not carry with it the complaint in the action. Hartford Ins. Co. v. Bryan, 25 App. 406.

940. Bond for restitution.

If the defendant in an attachment suit appears to the action and executes a bond for the performance of the judgment, a personal judgment may be rendered against New Albany Co. v. Sulzer, 29 App. 89.

him.

An action on a restitution bond executed in an attachment is not barred by an ap peal from the attachment judgment although execution on such judgment is stayed by an appeal bond. Hoyle v. Stellwagen, 30 App. 674.

943. Affidavit and summons for garnishee.

In an action on a bond executed to obtain a summons against a garnishee, the defendant is estopped to assert that the attachment suit was illegal because no affidavit for an attachment was ever filed. Davis v. Bickel, 25 App. 378.

ARTICLE 32.-ATTORNEYS.

SEC.

973. Attorney, conducting civil actions.

SEC. 980.

Authority of attorney.

973. Attorney, conducting civil actions.

The names of remonstrators may be signed by an attorney to a remonstrance against the issuing of a license for the sale of liquors. Cochell v. Reynolds, 156 Ind. 14; White v. Furgeson, 29 App. 144.

980. Authority of attorney.

Attorneys have authority to receive money on judgments obtained for their clients and to enter satisfaction of the judgment on record. State v. Henning, 158 Ind. 196.

SEC.

ARTICLE 34.-CHANGE OF NAME.

1015. Publication, proof, copy of order filed.

[Acts 1905, p. 447. In force March 6, 1905.]

1015. Publication, proof, copy of order filed.-4. Proof of the publication required in this act shall be made by filing a copy of such published notice, verified by the affidavit of a disinterested person, and when such proof of such publication is made, the court shall proceed to herein determine said petition and make such order and decree therein as to such court shall seem just and reasonable. A certified copy of such order and decree, shall, within ten days after the entering of the same by said court, be filed with the secretary of state.

This act amends section 4 of the act of 1852, being section 1015, Burns' R. S. 1901.

Females may be imprisoned for contempt in refusing to comply with orders of courts. Joyce v. Everson, 161 Ind. 440.

1023. Trial for contempt, appeal.

Courts have inherent power to punish direct contempts independent of legislative authority, but the legislature may regulate the procedure in such cases. Mahoney v. State, 33 App. 655.

When a statement is filed by a judge charging a direct contempt, such statement imports absolute verity. Mahoney v. State, 33 App. 655.

No arraignment of the accused is necessary on the trial of charges of contempt, nor need he file any answer. Mahoney v. State, 33 App. 655.

The state may appeal in proceedings for contempt under the statute providing for appeals in criminal actions. State v. Rockwood, 159 Ind. 94.

If the punishment for a contempt is a fine of more than $50, or imprisonment, the defendant may move for a new trial, and if the motion is overruled he may appeal. Mahoney v. State, 33 App. 655.

If a decree of divorce is obtained on service by publication, the decree can not be opened after the person obtaining the divorce is dead and no question of alimony or property rights were involved in the decree. Day v. Nottingham, 160 Ind.

408.

1043. Petition for divorce, residence, affidavit, proof.

A complaint for a divorce containing the necessary allegations as to the residence of the plaintiff and which is sworn to, is a sufficient compliance with the statute requiring the plaintiff to file an affidavit as to residence. Stewart v. Stewart, 28 App. 378.

If the residence of the plaintiff is not proven by two witnesses having the statutory qualifications, a decree for a divorce in favor of the plaintiff will be reversed. Becker v. Becker, 160 Ind. 407; Cummins v. Cummins, 30 App. 671.

Actions for divorce are regarded as civil actions in so far as the divorce act fails to prescribe rules of procedure. Eikenbury v. Eikenbury, 33 App. 69.

1044. Causes for divorce.

A husband may obtain a divorce because of cruel and inhuman treatment on the part of the wife. Spitzmesser v. Spitzmesser, 26 App. 532.

Manslaughter is an infamous crime within the meaning of the statute specifying the causes for a divorce. Sutherlin v. Sutherlin, 27 App. 301.