would establish such narrow technicality in pleading that to pursue an erroneous remedy without recovery, and without detriment to the adversary, would involve the loss of the proper remedy, and the reaping a rich harvest by the adversary whose liability is defeated by the harmless mistake of the claimant. Fortunately our Code has more liberal objects, and the practice tolerates no such harsh penalties for the inadvertences and mistakes of the pleader. We find no error for which reversal should be had, and the judgment of the lower court is affirmed.

(134 Ind. 421)

CLARK et al. v. HILLIS. (Supreme Court of Indiana. May 10, 1893.) DEED-CONSTRUCTION-ESTATE CONVEYED-JUDG

MENT-VALIDITY-NOTICE.

1. Under a conveyance of land to the grantee to hold "during the term of her natural life, and after her death to revert to me and my heirs," the fee in the land remains in the grantor; and where the grantor dies before the grantee the land may be sold, subject to the life estate, to pay the debts of the grantor.

2. Where the record in proceedings for the sale by an administrator of a decedent's land shows notice by publication and posting of the pendency thereof, the absence from the files of the notice will not defeat the presumption that it was the proper notice.

3. Where the record recites facts showing that legal notice was given of the sale of a decedent's land, the fact that the court erroneously directed sale without notice does not affect the validity of the sale.

66

Clark"

4. Notice by publication to of the pendency of proceedings is not binding on "Helen I. Clark," and she may attack the proceedings collaterally.

Appeal from circuit court, Clinton county.

Action by James M. Clark and others against Benjamin F. Hillis. Defendant had judgment, and plaintiffs appeal. Reversed in part only.

J. N. Sims & Son, for appellants. P. W. Gard, for appellee.

HACKNEY, J. On the 28th day of July, 1853. James Clark was unmarried, and then owned an 80-acre tract of land in Clinton county, of which he made conveyance to his mother, Catherine Clark, a widow. The deed of conveyance contains the following description of the estate in said lands conveyed: "To have and to hold unto the said Catherine, for the consideration aforesaid, during the term of her natural life, and after her death to revert to me and my heirs." Thereafter said James intermarried with Lorinda Coltum, and by her he had the following children: Amazia, James M., Malinda, Dulcenia A., Helen I., and Eliza J. Later said James and wife were divorced, and still later said James died intestate in said county. After the death of said James, said Amazia departed this life intestate, with no other heirs than his mother and his said brother and sisters. On the 18th day of February, 1871, the administrator of the estate of said James petitioned the proper court to sell said lands, subject to a life estate in said Catherine Clark, for the payment

of the debts of said Janies, deceased. Said petition set out the names of the surviving children of said James as Amazia, Malinda, Eliza Jane, Dulcenia Alice, James, Minerva, and James Marion Clark, and

Clark, including Jane Minerva and - Clark, not his children, and omitting Helen I., his daughter. The record recites that at a subsequent term of court the administrator made proof of the publication and posting of notices of the pendency of said petition. Appraisers were appointed and sworn, and reported an appraisement of said lands at $1,600. The administrator was ordered to file an additional bond in double the appraised value of said lands, and the record recites the filing and approval by the court of such bond, with Jeremiah K. Clark as surety. Thereupon the court ordered a private sale of said lands without notice. At a subsequent term of court the administrator reported under oath that he had given notice of the time, the terms, and lands to be sold by publication of three weeks successively in a named weekly newspaper of said county, and by posting printed notices in five public places in said county, three of which were in the township where said lauds were situated; and that pursuant thereto he sold said lands to Andreville Hillis for the appraised value. The sale was approved, the deed executed and confirmed, and the purchase money paid. Catherine Clark died October 21, 1887. The appellants, the five living children of said James Clark, and said Lorinda Clark, mother of said children, seek to recover said lands, and to quiet the title thereto in themselves. The appellee claims under Andreville Hillis, and succeeded in the lower court. No question is properly made in this court as to the sufficiency of the pleading, but the errors assigned are upon the overruling of the joint motion of all of the appellants for a new trial, and of the separate motion for a new trial by Helen I. Clark.

It is contended by the appellants that James Clark, at his death, held no title, legal or equitable, in said lands, subject to sale for the payment of his debts; and that the sale by the administrator was void, even if said James held an interest subject to sale for the payment of his debts. The argument upon the first con tention is, as we understand it, that the deed by James to his mother suspended the fee during her lifetime, and, after vest ing a life estate in her, conferred such re mainder at her death upon said James and his heirs; that the death of James before the extinction of the life estate took him out of the line of the "reversion," and left only such of his "heirs" as survived his mother to take the "reversion." Numerous authorities are cited as supporting this argument, but we believe them to be inapplicable to the necessary construction of the deed in question. The deed conferred no title on James. He held the full est title known to the law, and from it he carved a life estate, and conferred that upon his mother. He had no "heirs," and upon the expiration of the life estate nothing remained to revert, because nothing more had passed. The remainder never

passed from James, but continued in him until his death, when, it is found, he had heirs to inherit that remainder, and hold it subject to said life estate, and subject to the payment of the debts of said James. There is little room for the contention that such interest of James was a "contingent remainder." The case of Stephens v. Evans, 30 Ind. 39, cited by counsel, defines a contingent remainder as "an interest in remainder, limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event." If the deed had been from another to Catherine for life, with the remainder over to James, expressed in the form we find it in the deed of James, we could doubt its construction as conferring upon James a contingent remainder. There are no expressions of contingency in the deed. It has often been held that a bequest to one "if living," means if living during the life of the testator. But here the estate parted with is but a life estate, and the remainder in fee continues in James, and is dependent upon no contingency. The expression, "to revert to me and my heirs,' is not a granting term, and cannot, therefore, creates a limitation. The law favors vested remainders, and ignores the rule that the fee may stand in abeyance or be suspended. Amos v. Amos, 117 Ind. 37, 19 N. E. Rep. 543. In Boone on Real Property (section 18) it is said that the law does not permit estates to be in abeyance, except in cases of necessity, and it has been said that the doctrine of a fee in abeyance is not now the law of real property. Sheffield v. Ratcliffe, Hob. 338; Bucksport v. Spofford, 12 Me. 492; Donovan v. Pitcher, 53 Ala. 411: Fearne, Rem. 351, 361; Williams, Real Prop. 256; Sands v. Lynham, 27 Grat. 291; Moores v. White, 6 Johns. Ch. 360, 365.

The validity of the sale by the administrator is attacked upon the following grounds: (1) The name of Helen I. Clark was not stated in the petition for an order of sale. (2) The sale was ordered without notice, the land being valued at $1,600. (3) That no additional bond is on file. (4) All of the appellants except Lorinda Clark were minors when the order was made. (5) No guardian ad litem was appointed for the minors. (6) No notice was given of the pendency of the petition. (7) Appellants were not called, and defaulted in said proceeding to sell. (8) There was no legal appraisement.

ly that notice was given by publication and posting of the pendency of the proceeding. The absence from the files of the notice so found will not defeat the presumption that it was the proper notice. If the infirmity for which a judgment is attacked do not appear from the face of the record of a court of competent jurisdiction, the judgment is not void. Palmerton v. Hoop, 131 Ind. 23, 30 N. E. Rep. 874; Earle v. Earle, 91 Ind. 27. The absence from the files of the proof of notice of sale should not affect the validity of the sale, for the reasons stated as to the notice of the pendency of the proceeding. But it is insisted that the court ordered the sale without notice, when, from the appraised value of the land, notice was required by law. The statute did not require the order of sale to direct the giving or withholding of notice, and, while notice was required, and while the court did the unnecessary act of directing the sale without notice, the administrator did his duty in the giving of notice, as we find from the record. While there might be some doubt of the presumption of notice as against the order of sale without notice where we find that notice was given, the order as to notice will be disregarded. The record ordered the administrator to execute an additional bond, and it appears that he did so, though the bond is not in the record. That he gave no such bond will not be presumed, as we have shown. However, the failure to execute such bond has been beld not to invalidate a sale, where it does not appear that the proceeds of the sale were misappropriated. Foster v. Birch, 14 Ind. 445; Dequindre v. Williams, 31 Ind. 444; McKeever v. Ball, 71 Ind. 398; Marquis v. Davis, 113 Ind. 219, 15 N. E. Rep. 251.

In this action we may infer that the appellants, excepting Lorinda Clark, were minors at the time the lands were ordered sold. This may be inferred from the knowledge we get by the admitted facts that in July, 1853, James was not a married man; that he thereafter married Lorinda Collum, by whom he had said children, and that the sale was made in 1871. These facts do not appear of record in the proceeding to sell. The court there acted, so far as its record discloses, without knowledge of their infancy. Without question, that record does not disclose this infirmity. Hence the judgment for that cause is not void, and the failure of the court to appoint a guardian ad litem was at most collateral to that error. practice then prevailing was not of such nature as to require parties named in the petition as heirs to be defaulted upon failure to appear. It was required by statute that the petition should state the names of the heirs, but it did not require, as the present statute seems to, an adversary proceed

The

ties named were permitted to interpose, and show why a sale should not be or dered. In the absence of such interposition the court ordered, as the statute directed, a sale of the property. No defect in the appraisement is pointed out, and we observe none. The second and third paragraphs of complaint clearly present

collateral attacks upon the probate pro-

ceedings. In Cully v. Shirk, 131 Ind. 76, 30

N. E. Rep. 882, it was said that any attack

upon a judgment for want of jurisdiction

in the court to render it, predicated upon

a matter dehors the record, is collateral.

Harman v. Moore, 112 Ind. 221, 13 N. E.

Rep. 718; Gain v. Goda, 84 Ind. 209; Lantz

v. Maffett, 102 Ind. 23, 26 N. E. Rep. 195;

Earle v. Earle, supra; Railway Co. v.

Harmless, 124 Ind. 25, 24 N. E. Rep. 369. It

is not so clear that a proceeding to re-

view a judgment is a direct attack in the

sense that matters dehors the record may

be made the ground of attack. The appel-

lants' learned counsel gives true character

to the form of this action when he says:

"If the order of sale and the proceedings

thereon were void, the plaintiffs, appel-

lants, are entitled to recover possession,

and have their title quieted, on either the

second or third paragraphs of their com-

plaint. If the proceedings are not void,

but erroneous, they are entitled to relief un-

der their first amended paragraph, which,

among other things, prays for a review of

judgment." We feel constrained to hold,

for the reasons given, that the sale, as to

the heirs of Janies Clark other than Helen

I. Clark, was not void, and if they can re-

cover it must be upon the theory of a di-

rect attack upon the procedings of the

probate court. The second and third para-

graphs of complaint as we have seen, do

not admit of such a theory. Does the first

amended paragraph constitute a direct

attack upon the proceedings of the pro-

bate court? An action to review a judg-

ment is given by statute, and the causes

therefor are: (Rev. St. 1881, § 616:) "For

any error of law appearing in the proceed-

ings and judgment,

or for ma-

terial new matter discovered since the ren-

dition thereof" The review here sought is

not for material new matter discovered

since the rendition of the judgment. It

can only be for error appearing in the pro-

ceedings and judgment, forerror apparent

on the face of the record. Rice v. Turner,

72 Ind. 560; Richardson v. Howk, 45 Ind.

451; Train v. Gridley, 36 Ind. 241; Preston

v. Sandford, 21 Iud. 156; Shoaf v.Joray, 86

Ind. 70. Review may he had only when

the same relief might be had by appeal

from the judgment sought to be reviewed.

Baker v. Ludlam, 118 Ind. 87, 20 N. E. Rep.

648; Insurance Co. v. Gibson, 104 Ind. 336,

3 N. E. Rep. 892; Shoaf v. Joray, supra;

Insurance Co. v. Carpenter, 85 Ind. 350;

Tachau v. Fiedeldey, 81 Ind. 54. In the last

of the cases cited, as in many others, it is

made manifest that, though a direct at-

tack, the proceeding to review is not for

errors to be established dehors the record.

The proceeding has for its object the cor-

rection of some error upon the face of the

proceeding and judgment by invoking the

power of the court committing such error.

It is a substitute for the remedy by ap-

peal, and is of the same nature. Insur-

ance Co. v. Carpenter, supra. The ap

pellants use the remedy to introduce mat-

ters not apparent upon the face of the rec-

ord, so far as all are concerned excepting

Helen 1. Clark. As to her, the face of the

record discloses that the court had no ju-

risdiction over her person. She was not

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in court; not a party to the proceeding.

Notice to

Clark by publication is not

hinding upon Helen I. Clark, and she may

attack the proceeding collaterally, because

void as to her, the record expressly show-

ing the infirmity as to her. Schissel v.

Dickson, 129 Ind. 139; 28 N. E. Rep. 540;

Hawkins v. Hawkins, 28 Ind. 66. In the

| last-cited case it was held that a sale upon

proceedings disclosing that heirs were not

served with process is void, and is not

aided by the confirmation of the sale by

the court. The appellee insists that the

appellant Helen 1. Clark cannot succeed

here, because the complaint is joint as to

her and the other appellants, and does not,

therefore, state a cause of action in her be-

half alone. The sufficiency of the pleadings

is not raised by assignment or other meth-

od, and is not before us. It is also insisted

that the appellants are estopped to at-

tack the sale because of their having re-

ceived the proceeds of the sale. While, un-

der Palmerton v. Hoop, 131 Ind. 23, 30 N.

E. Rep. 874, that might be a good estoppel,

the facts constituting the estoppel are not

shown by the record, and we cannot pre-

sume their existence. We conclude that

the court erred in overruling the separate

motion of Helen I. Clark for a new trial.

The judgment is reversed as to Helen I.

Clark, and is in all things affirmed as to
the other appellants.

1. Where a railroad knowingly maintains

a bridge over its track so low as to endanger

any one standing on a refrigerator or other

high car, and a brakeman, passing at night,

without knowledge of the danger, is struck and

injured, the company is liable.

2. The integrity of a bill of exceptions can-

not be assailed by statements of the clerk, em-

bodied in the return, showing that certain parts

were placed in the bill merely without being

fastened. McCabe, J., dissenting.

3. Reference in a bill of exceptions to the

"following depositions," without other designa-

tion as to the proper place for insertion of such

depositions, and without the same being copied,

but with the originals merely placed inside the

paper on which that part of the bill is written,

is not enough to constitute such depositions

part of the bill.

4. A joint assignment, including a number

of instructions, can be maintained only by show-
ing that all the instructions are incorrect.

Appeal from circuit court, Allen county.
Suit by Oliver B. Sears against the

Pennsylvania Company. Judgment for

plaintiff. Defendant appeals. Affirmed.

J. Brackenridge and Allen Zollers, for

appellant. L. M. Ninde, for appellee.

МеСАВЕ, Ј. Appellee sued appellant,

a railway company, for a personal injury

resulting from the alleged negligence of the

appellant. Trial by jury; verdict for ap-

pellee, upon which judgment was rendered

over a motion for a new trial. The errors

assigned here, and not waired by failure to

argue the same, are overruling appellant's

Rehearing denied, 36 N. E. 353.

demurrer to the appellee's complaint, and overruling appellant's motion for a new trial. The material allegations of the complaint are as follows: "That for the last ten years the defendant has possessed and operated the Pittsburgh, Ft. Wayne & Chicago Railroad extending from Pittsburgh, in said state of Pennsylvania, through the city of Ft. Wayne, Indiana, to Chicago, Illinois. Plaintiff further avers that from the 16th November, 1887, to the 8th May, 1888, inclusive, he was employed by the defendant as brakeman on the division of its said road between said Ft. Wayne and the city of Chicago. That on said 8th day of May he left Chi cago as brakeman on the defendant's train No. 76, for said Ft. Wayne. And the plaintiff avers that between the town of Wheeler and the city of Valparaiso, in said state of Indiana, the defendant, for the period of, to wit, five years last past, has carelessly, negligently, and recklessly maintained an unlawful and dangerous overhead bridge over its said railroad, and unlawfully, carelessly, and negligently maintained said bridge so low that when a brakeman passed thereunder standing upon a refrigerator car or other highest cars used by the defendant on its said road his head would come in contact with and strike against said bridge. And the plaintiff further avers that, although the defendant so unlawfully, carelessly, and negligently maintained said bridge in a dangerous condition as aforesaid, yet it carelessly, negligently, and unlawfully failed, neglected, and refused to keep proper, suitable, and safe guards up at either side of said bridge, in such a position, or of such a kind or character, as would with reasonable safety caution or warn brakemen upon its train that they were approaching and about to pass under said bridge, and the defendant during said period also carelessly, negligently, and unlawfully neglected and refused to keep proper, safe, and suitable lights or lamps upon said bridge in the nighttime to notify or warn brakemen upon its freight trains of the presence of said bridge, and of their approach thereto. And plaintiff avers that, to wit, on said 8th May, in the nighttime, while it was dark, he was engaged as such brakeman by the defendant on its said train No. 76 in running said train eastward upon said road and under said bridge so negligently maintained as aforesaid, and upon and about which bridge the defendant negligently and carelessly failed at the time said plaintiff was approaching and passing said bridge upon said train as aforesaid to keep, place, or have any lights upon or about said bridge to warn or notify him that he and said train were approaching and about to pass said bridge; and the defendant also negligently and carelessly neglected, failed, and refused at the time the plaintiff was approaching said bridge and about to pass the same as aforesaid upon said train to place or keep upon or near said bridge any suitable or proper guards or ticklers to give the plaintiff notice that he was approach. ing or about to pass said bridge. And he avers that after said train passed said

town of Wheeler he was diligently and carefully engaged in his duties as such brakeman, and without any fault or lack of care and due diligence on his part, and without any knowledge on his part that he was approaching and about to pass under said bridge, said train upon which he was so diligently, carefully, and faithfully braking, as aforesaid, ran past and under said bridge, and carried the plaintiff, without any fault whatever on his part, under and against said bridge, and whereby, and without any fault on his part, his head was brought in collision with said bridge above said train, and his head collided with said bridge above said train with great violence, whereby his skull was fractured, his head and face were bruised, mangled, and crushed, and his lip cut through and greatly injured, and whereby he became and was insensible and helpless, and his shoulder, neck, and body became and were bruised aud greatly injured, and whereby he was thrown to ground upon said railroad track, and the cars ran over him and crushed his leg from his foot to his thigh, so it became necessary to amputate the same, which was done, by means of which injuries he became sick, sore, and distressed, and suffered great pain and anguish, both mentally and physically, and bis life was for a long time, to wit, for six months, despaired of, and he became and was and is wholly disabled from ever again following his business or profession, and from ever again earning his living, and he was compelled to lay out and expend, to wit, $500, in nursing, medicines, and medical and surgical attendance in being treated for said injuries; and he avers that he was so injured, as aforesaid, without any fault whatever on his part. That he had not, at or before he was so injured, any knowledge or notice whatever that said bridge was so low that it would come in collision with his head, or any part of his body, or that it was low enough to touch him as he passed under the same; and he avers that all said injuries were caused by the negligence and carelessness of the defendant, as aforesaid, to his damage in the sum of fifteen thousand dollars, for which he sues and demands judgment.

The first objection urged against this complaint is that it does not state what part of the train appellee was on when he was injured, and that it is not averred that he was standing on any one of the cars when his head came in contact with the overhead bridge. If it was material or im. portant to appellant to have a more specific statement as to the particular place in the train appellee occupied when the alleged injury occurred, the appropriate remedy was a motion to require greater certainty in that respect, and not a demurrer for want of sufficient facts. As to the other point, the complaint shows that on the 8th day of May he was engaged as brakeman for appellant on train No. 76 going east from Chicago, and, after the same passed the town of Wheeler, he was diligently engaged in his duties as such brakeman. Said train ran past and under said bridge, whereby his head was brought

in collision with said bridge above said train. From this language we think it appears that the only place appellant could have occupied at the time the bridge came in contact with his head was on top of some one of the cars in that train. Whether it was a refrigerator or other highest car was not essential to the sufficiency of the complaint. It is fairly inferable from the complaint that it was only refrigerator cars and other highest cars that would not admit a brakeman to stand erect thereon and pass under said bridge in safety, and that all other cars would admit such passage. Much useless verbiage in the complaint has obscured the statement of these facts to some extent, but not to the extent of destroying them. The unavoidable conclusion to which the language employed leads is that the or dinary cars in use on said road would admit such passage. It is also claimed that the complaint is bad for the reason that it appears therefrom that appellee was not free from contributory negligence. The contention is that, as it appears from its averments that appellee was engaged for appellant as brakeman from the 16th day of November, 1887, until the 8th day of May, 1888, he had ample opportunity of knowing all about the dangerous character of the bridge, and that, therefore, he assumed the risk of such employment. The complaint "avers that from the 16th November, 1887, to the 8th May, 1888, inclusive, he was employed by defendant as brakeman on the division of its said road between Ft. Wayne and Chicago. What train he had been braking on during that time, whether freight or passenger, is not stated. If it was either material or useful to appellant's rights to have the complaint specify the particular train, the only remedy was a motion asking the trial court to require such specification, and not a demurrer for want of facts sufficient. No such motion was made. It is afterwards averred in the complaint that appellee bad not at or before he was injured any knowl. edge or notice whatever that said bridge was so low that it would come in collision with his head or any part of his body, or that it was low enough to touch him as he passed under the same. From this language it clearly enough appears that he in fact did not know of the dangerous character of the bridge, and the demurrer admits that fact. Nor does it appear from the facts stated that he might have known of such danger, because it does not appear that he was ever braking on a freight train for appellant prior to the occasion on which the alleged injury was received; and, if that did appear, still there is nothing in the complaint to indicate that he had ever known of or seen "refrigerator or other highest cars" pass under said bridge, either with or without a brakeman standing thereon, or that any other facts existed within bis knowledge to warn him of the dangerous character of the bridge.

This analysis of the complaint upon the point in question makes the long list of authorities cited by appellant's counsel in support of his contention inapplicable. It ie true, as stated in Pennsylvania Co. v. Whitcomb, 111 Ind. 216, 12 N. E. Rep. 380, v.34N.E.no.1-2

*

cited by appellant, "that no one is bound to remain in a service which he is informed is dangerous, and, if an employe does voluntarily continue in the master's service after notice of its dangers, he assumes all risks arising from the known dangers. The risks which the employe assumes are, however, such as are incident to his service, and such as arise in cases where ordinarily safe machinery and appliances are provided. If machinery of an unusual and more dangerous character is provided, and the employe has no notice of the danger, then he does not assume the risk attendant upon its use." To the same effect are Railway Co. v. Adams, 105 Ind. 151, 5 N. E. Rep. 187; Railway Co. v. McCormick, 74 Ind. 441; and many other cases cited by appellant. We do not think the danger of an overhead bridge maintained by a railroad company so low that it may come in contact with the heads of its brakemen while engaged in their duties on the top of its cars as they pass under such bridge is one of the dangers incident to such service. There are a thousand and one dangers incident to the service of all railroad operative employes that ordinary prudence cannot be expected to guard against, and for which the master is not liable, and the risk of which is assumed by the employe; but the maintenance of an overhead bridge so low as to fracture the skulls and endanger the lives of brakemen is not one of them. The precise question here under consideration was decided by this court in Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. Rep. 627, where this court, appropriating the language of the supreme court of Massachusetts, said: "He who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such service. But, says this court, "there are well-defined exceptions to this general rule, one of which arises from the obligation or duty of the master not to expose the servant while conducting his business to perils or hazards which might have been provided against by the exercise of due care and proper diligence upon the part of the master. A railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and if, from defective construction of its road and appurtenances, an injury happen to one of its servants, the company is liable for the injuries sustained." This court held in that case that a complaint in all respects substantially the same as the one at bar was good on demurrer, and expressly repudiated many of the authorities cited by appellant in this case to the contrary. That case was cited and reaffirmed by this court in Railway Co. v. Wright, 115 Ind. 378, 16 N. E. Rep. 145, and 17 N. E. Rep. 584, a case involving the sufficiency of the complaint on demurrer for an injury received by a brakeman on account of an overhead bridge being too low. The latter case is a stronger one in support of the sufficiency of the complaint here than the former. In the latter case it appeared that no full-grown man could stand erect

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