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The Pennsylvania Company t. Whitcomb, Administrator.
Where the contract requires that the employee shall use appliances designated by the master, and he fails to do so, the master can not be deemed in fault unless something more is made to appear. Nor can the master be deemed in fault for providing cars that can not be safely coupled by hand when he has required his employees not to couple by hand in any case, but to use the coupling-stick in every case. Where, as here, the agreement is that the employee will couple cars in a designated manner, the master is bound to use reasonable care to provide cars that may be safely coupled in that manner, but is not bound to furnish cars that can be safely coupled in the manner forbidden by the contract of service.
The utmost that can be conceded to the complaint in this case, if, indeed, so much can be conceded, is, that it shows an actionable breach of duty in failing to provide cars that could be coupled by hand without injury to the brakeman. The complaint, conceding its sufficiency, is sufficient only because it shows a negligent breach of duly in failing to furnish cars that might be safely coupled by hand. The theory of the complaint is, that it was proper to couple by hand; that the appellant did not provide such cars as could be safely coupled in that manner, therefore, it is liable. The complaint makes a prima facie case, if it makes one at all, only upon the hypothesis that it was the appellant's duty to provide cars that might with safety be coupled by hand, and if this hypothesis is destroyed the prima facie case fails. The answer does destroy this prima facie case, because it shows that it was a breach of duty by the employee to undertake to couple the cars by hand, and because it shows that the obligation resting on the appellant was that of providing cars which might safely be coupled by the use of the coupling-stick. The duty of the master under the contract of service was to provide cars that might be coupled without danger by the use of a coupling-stick, and not to provide cars that might safely be coupled by hand. If this was Walker et al. v. Hill et aL Walker el al. v. Hill el al.
the appellant's duty, then it is manifest that, to constitute a
We regard the answer as presenting, at least, a prima facie
"walker Et Al, V. Hill Et Al.
A Pt Ea L.— Certificate to Transcript.—Phrase "True and Complete."—The certification of the transcript of the record, on appeal to the Supreme Court, as " true and correct," instead of "true and complete," in the language of the statute, is sufficient, the former phrase being equivalent to the latter.
Same.—Motion to Dismiss.— Waiver.—Practice.—A motion to dismiss an appeal on purely technical grounds must be made, if at all, on the first appearance of the moving party in the Supreme Court; otherwise, the objection will be deemed waived.
Same.—Joint Assignment of Error.—Sufficiency of.—A joint assignment of errors by two or more appellants will not present any question for decision unless it is good as to all who have united therein.
QuiETlJJO Title.— Guardian's Sale. — Ejectment.— Former Adjudication.— Pleading.—To a complaint by the heirs of W. apainst the remote grantees of R. to quiet title to real estate, an answer setting up a judgment rendered in an action prosecuted in his lifetime by W. against R., then in possession and claiming title through a sale made upon petition of the guardian of W., for the recovery of the land, wherein it was decreed that W. was not the owner and was not entitled to the possession thereof, is good.
Judgment.—Conclusiveness.—Collateral Attack.—Jurisdiction.—A judgment rendered by a court having jurisdiction of the subject-matter and of the persons of the parties will stand as against a collateral attack.
Same.—Guardian and Ward.—Proceedings to Sell Land.—Mere Errors and Irregularities not Available CollaieraUy.—However irregular and erroneous the proceedings and orders of a court having probate jurisdiction may be, in relation to the sale and conveyance of the real estate of minor
heirs, upon the petition of their guardians, yet if such proceedings and orders are not void, they are conclusive when questioned collaterally.
Statute Op Limitations. — Guardian's Sale of Real Estate.—Adverse Possession.—Ejectment.—Quieiiny Title.—Where the purchaser at a guardian's sale, made in 1852, went into immediate possession of the land, causes of action for the recovery thereof and to quiet title thereto accrued at that time, and, even if the sale was void, adverse possession having been continuously held by the purchaser and his grantees, such causes of action are barred. Sections 293 and 294, R. S. 1881.
-same.—IHsabiiities.—Infancy.—Where one is under the disability of infancy at the time a cause of action in his favor accrues, the statute of limitations, nevertheless, begins to run, and, under section 296, R. S. 1881, the only effect of such disability is to give the party, if the full limitation has run during his infancy, two years after reaching legal age within which he may sue.
Same.—Infancy and Coverture.—Where the statute of limitations begins to run during infancy, it is not impeded by the subsequent intervention of the disability of coverture, as one disability can not be tacked to another to stay the operation of the statute.
From the Jennings Circuit Court.
D. Waugh and T. T. Walker, for appellants.
Howk, J.—This was a suit by the appellants, Thomas T. "Walker and Eleanor Baxter, as plaintiff'!, against the appellees, Joanna, Mary, Carrie and Emma Hill, as defendants, in a complaint of three paragraphs. The first paragraph was a complaint, in the ordinary form, to recover the possession of certain described real estate in Jennings county; and the second and third paragraphs were each a complaint to quiet the appellants' title to the same real estate as against the appellees. The cause was put at issue and tried by the court; and, at the appellants' request, the court made a special finding of the facts, and stated its conclusions of law thereon, in favor of the appellees, the defendants below. Over the appellants' exceptions to the conclusions of law, the court rendered judgment against them for appellees' costs.
The appellees have filed a written motion to dismiss this appeal, upon the ground that the transcript of the record is Walker el al. v. Hill el at
not certified by the clerk below, in conformity with the requirements of section 462, R. S. 1881. The objection to the certificate is, that the clerk certifies the transcript to be a "true and correct" copy, instead of "true and complete," in the language of the statute. In Anderson v. Ackerman, 88 Ind. 481, where the same objection was made to a certified transcript of a judgment oS'ered in evidence, it was held that the words "true and complete," as used in the statute, can not be regarded as technical; and the words "true and correct," as used in the clerk's certificate, are equivalent in meaning to the statutory words. Besides, this appeal was submitted, by the agreement of the parties, upon the transcript as now certified, without any objection then made to tlie certificate; and nearly five months elapsed after such submission before the appellees filed their motion to dismiss the appeal on account of the supposed defects in the clerk's certificate. The motion came too late. Such a purely technical motion must be made, if made at all, on the first appearance of the moving party in this court; otherwise, the •objection will be regarded as waived. People's Savings Bank v. Finney, 63 Ind. 460; Field v. Burton, 71 Ind. 380; Easter v. Severin, 78 Ind. 540; Martin v. Orr, 96 Ind. 491.
Upon the record of this cause, appellants Thomas T. Walker and Eleanor Baxter have jointly assigned the following errors, namely:
1. The court erred in overruling appellant Walker's separate demurrer to the second, third, fourth and sixth paragraphs of appellees' joint answer.
2. The court erred in overruling appellant Baxter's separate demurrer to the second, third, fourth and sixth paragraphs of appellees' joint answer.
3. The court erred in overruling appellant Walker's separate demurrer to the third paragraph of appellee Joanna Hill's separate answer.
4. The court erred in overruling appellant Baxter's sepVol. 111.—15
Walker el al. v. Hill el al.
arate demurrer to the third paragraph of appellee Joanna Hill's separate answer.
5. The court erred in sustaining appellee Joanna Hill's separate demurrer to the second paragraph of appellant Walker's reply to the second and sixth paragraphs of appellees' joint answer.
6. The court erred in sustaining Joanna Hill's separatedemurrer to Walker's second reply to the third paragraph of Joanna Hill's separate answer.
7. The court erred in sustaining Joanna Hill's separate demurrer to Baxter's second reply to the third paragraph of Joanna Hill's separate answer.
8. The court erred in sustaining Joanna Hill's separate demurrer to Baxter's second reply to the second, third and sixth paragraphs of appellees' joint answer.
9. The court erred in sustaining appellees' joint demurrer to Walker's second reply to the second and sixth paragraphs of appellees' joint answer.
10. The court erred in sustaining appellees'joint demurrer to Baxter's second reply to the second, third and sixth paragraphs of appellees' joint answer.
11. The court erred in sustaining Joanna Hill's separate demurrer to appellants' joint reply to the fourth paragraph of appellees' joint answer.
12. The court erred in sustaining appellees' joint demurrer to appellants' joint reply to the fourth paragraph of appellees' joint answer.
13. The court erred in its conclusions of law upon its special finding of facts.
The point is made by appellees' counsel, and, under our decisions, it is well made, that the first ten errors, jointly assigned as above by the appellants herein, are not well assigned, and do not, nor does either of them, present any question for our decision. In this court, the assignment of errors constitutes the complaint of the appellants, and, like a complaint in a trial court, it must be good as to all who join