to decide and do not decide the right of a party to appeal from the first award without applying for a review under the statute.

was to provide compensation and the proper | School Supply Co. v. Charles Lewis, 115 N. award with a minimum of legal procedure. E. 103 (this term). We are not called upon The provisions for a review afford opportunity of presenting to the full board all questions relied upon by the aggrieved party, and in the main serve the same purpose that Other alleged omissions and irregularities a motion for a new trial serves in a civil ac- mentioned in the motion to dismiss need not tion. At all events it is evident the Legis- be specifically mentioned, as they are in eflature did not contemplate ingrafting on the fect disposed of by our discussion and disprocedure provided by the act all the require-position of the other questions presented. ments relating to appeals from judgments in The motion to dismiss the appeal is thereordinary civil suits. This is apparent from fore overruled. the general tenor of the law and by section

55, which provides that:

"The board may make rules not inconsistent with this act for carrying out the provisions of this act. Processes and procedure under this act shall be as summary and simple as reasonably may be."

IBACH, P. J., and DAUSMAN, CALDWELL, BATMAN, and HOTTEL, JJ., concur.

(63 Ind. App. 561)

STATE ex rel. SALT CREEK CIVIL TP. et
al. v. STEVENS et al. (No. 9578.)
(Appellate Court of Indiana, Division No. 2.
Jan. 24, 1917.)

As above shown the section authorizing appeals contains the phrase, "under the same terms and conditions as govern appeals in ordinary civil actions," but it is apparent it 1. OFFICERS 140 - OFFICIAL BONDS - ACwas only intended to apply to phrases of the TIONS REAL AND NOMINAL PARTIES. Under Burns' Ann. St. 1914, § 253, providprocedure in appeals under the act, not es-ing that actions upon official bonds and bonds pecially provided for by the act itself.

payable to the state shall be brought in its name on the relation of the parties interested, the relator is the real party in interest, and the state is but a nominal party.

[Ed. Note.-For other cases, see Officers, Cent. Dig. 88 243, 244; Dec. Dig. 140.] 2. APPEAL AND ERROR 722(3)—Parties—

DESIGNATION OF

APPEAL BY TOWNSHIP APPELLANT-SUFFICIENCY. Under Burns' Ann. St. 1914, § 6404, providing that each and every township shall be a school township with the name school,

township, of -county" according to the name of the township in which the same may of the township ex officio trustee of the school be organized, section 6405, making the trustee township, and section 9562, providing that each township is a corporation by the name of "township, county," by which name it may contract, sue, and be sued, the name "Salt Creek township" imports the civil township without the addition of the qualifying word "civil," and an appeal by it will not be dismissed, though it was so designated in the assignments of error, while it was named "Salt Creek civil township" in the proceedings below.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2992; Dec. Dig. 722(3).] 3. APPEAL AND ERROR 722(3) ASSIGN

MENTS OF ERROR-PRESUMPTION. the assignment of errors as "Salt Creek townA political corporation being designated in re-ship," a conclusive presumption arises that the reference is to the civil township.

script contains full, true, and correct copies of all papers and entries in said cause quired by the præcipe of appellant.

-STATUTE.

[2] The further contention that the record [Ed. Note.-For other cases, see Appeal and does not show that the exception was taken Error, Cent. Dig. § 2992; Dec. Dig. 722(3).] "at the time" is not available, since the ex-4. SCHOOLS AND SCHOOL DISTRICTS 118ceptions shown are sufficient under the provi- TOWNS 75-TRUSTEE-RIGHT OF ACTION sions of the act, and would, have been suffiUnder Burns' Ann. St. 1914, § 6405, makcient without showing an exception to the ing the trustee of a township the trustee of a first award as the record sets forth the pro- school township, section 253, providing that acceedings on review by the full board and ap- the state may be brought in the name of the tions upon official bonds and bonds payable to pellant's exception to the final award from state on the relation of the parties interested, which this appeal was taken. On this record and section 9562, authorizing a civil township the assignment of errors presents alleged "er- to sue in its name, the trustee or the township, rors, of law," which an aggrieved party is en- of a preceding trustee to recover funds due the as relator, may prosecute an action on the bond titled to have passed upon by this court un-civil township; and the trustee or the school der section 61, supra. See, also, Columbia township may prosecute a like action for the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

benefit of the school township, or in one action, | township of Monroe county, Ind." The judgeither the trustee as relator, or both corpora- ment appealed from is to the effect that the tions as relators, may prosecute such an action to recover funds severally due them.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 275; Dec. Dig. 118; Towns, Cent. Dig. § 120; Dec. Dig. mm 75.]

5. APPEAL AND ERROR 323(5)-PARTIES— STATUTE.

Under Burns' Ann. St. 1914, § 675, relating to appeal by part of coparties, where a township and a school township sued to recover funds alleged to be due to them, and suffered an adverse judgment and the township appealed on a term time appeal, the school township was not a necessary party in order that judgment might be reversed in behalf of the township. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1798; Dec. Dig. 323(5).] 6. EVIDENCE 25(2)

SCHOOL TOWNSHIPS.

JUDICIAL NOTICE

In view of Burns' Ann. St. 1914, § 6404, organizing every township as a school township for school purposes, the court, on a showing that there was in Monroe county a township named Salt Creek township, judicially knows that there is also in that county a school corporation named Salt Creek school township; but, townships being laid off, bounded, described, and named by the board of county commissioners, as prescribed by section 9559, the court does not judicially know that the school township designated in an assignment of error as "Salt school township of Monroe county" is not an existing corporation separate and distinct from the "Salt Creek school township of Monroe county."

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 32; Dec. Dig. 25(2).]

Appeal from Circuit Court, Owen County; Robert W. Miers, Judge.

Action by the State, on the relation of Salt Creek Civil Township and Salt Creek School Township of Monroe County, against William F. Stevens and others. Judgment for defendants, and plaintiffs appeal. Appeal of School Township held ineffective, and motion to dismiss appeal overruled.

plaintiff and relators take nothing by the complaint, and that appellees recover from the relators their costs, and, further, that appellee William F. Stevens recover of Salt Creek township the sum of $67.73 and costs.

[1, 2] It will be observed that in naming the relators in the assignment of errors the word "civil" is omitted in one case and the word "Creek" in the other case. On such facts appellees state their position as fol

lows:

We proceed to determine whether or not such defects in the record necessitates a dismissal. There being in Monroe county a township, the name of which is Salt Creek township, it follows by virtue of statute that there is also in that county another corporation exercising dominion over the same territory as the former, but in a different field of activity, being "Salt. Creek school township of Monroe county, Ind." The first is a civil and the second a school township. Sections 6404 and 6405, Burns 1914; Carmichael v. Lawrence, 47 Ind. 557. The trustee of the former is by virtue of his office trustee of the latter also. Section 6405, supra. A statute provides that actions upon official bonds and bonds payable to the state of Indiana shall be brought in the name of the state of Indiana on the relations of the parties interested. Section 253, Burns 1914. In such a case the relator is the real party in interest; the state being but a nominal party. 1 Works' Practice. § 49, and cases; State v. Wilson, 113 Ind. 501, 15 N. E. 596. The statute by virtue of which Salt Creek township involved here exists as a body politic and corporate prescribes that it may sue and be sued by the CALDWELL, J. This action was brought name of "Salt Creek township of Monroe and prosecuted by the state on the relation county." Section 9562, Burns 1914. The of the two corporations indicated, to recover corporation existing under such name is the on three several official bonds executed by civil township rather than the school townappellee William F. Stevens as township ship. Baltimore, etc., Co. v. State, etc., 159 trustee. The other appellees were sureties Ind. 510, 65 N. E. 508. As the word "civil" on the bonds. The cause is now before is not one of the words specified by the statthis court on appellees' motion to dismiss ute as constituting the corporate name of the appeal, conceded to be a term time ap- a township, it should not be included. Howpeal. The facts as presented by appellees ever, as the name "Salt Creek township," are as follows: In the complaint, and for etc., imports the civil township, the addition the most part in the proceedings below, the of the word "civil" as a qualifying word relators are named as "Salt Creek civil does not in fact qualify or render either township" and "Salt Creek school town- more or less certain the identity of the corship" of Monroe county, Ind. In the as- poration and body politic to which reference signment of error, which is several in form, is made. We are able to determine with relators are named as "Salt Creek township certainty that Salt Creek civil township of Monroe county, Ind.," and "Salt school named in the proceedings below is the same

Joseph K. Barclay, Wm. M. Louden, Chas. B. Waldron, and Batman, Miller & Blair, all of Bloomington, and Evan B. Stotsenburg, of New Albany, for appellants. East & East, of Bloomington, for appellees.

corporation as is designated in the assign- | signment of errors. It being conceded or ment of errors as Salt Creek township. established that there is in Monroe county

[6] Considering briefly the other phase of the case, this action was brought and prosecuted in the trial court in behalf of Salt Creek school township also, while Salt school township, rather than Salt Creek school [Ed. Note.-For other cases, see Appeal and township. is named as a relator in the as- Error, Cent. Dig. § 2319; Dec. Dig. 511(1).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied, 116 N. E. 759. Transfer denied.

4. APPEAL AND ERROR 511(1)-BILL OF EXCEPTIONS-FILING-CLERK'S TRANSCRIPT.

The clerk's amended certificate to a transcript certifying that the original bill of exceptions containing the evidence in the cause was filed in the clerk's office on or about a certain day, and that on information and belief it had been signed by the trial judge, but that there was no memoranda of the filing in his office, and that he had no independent recollection thereof, was not a sufficient showing of the filing of such bill of exceptions.

Henley & Baker, of Indianapolis, E. C. Martindale, of Plymouth, Henley, Fenton & Joseph, of Indianapolis, for appellants. Harley A. Logan, of Plymouth, for appellee.

BATMAN, J. This was an action brought by appellee against appellants for the breach of a contract between appellee and appellant Wallace for the construction of a dwell[Ed. Note.-For other cases, see Appeal and ing house, and on a bond executed by appelError, Cent. Dig. § 2319; Dec. Dig. 511(1).] lant Wallace as principal and appellant com5. APPEAL AND ERROR 511(1)-BILL OF Ex-pany as surety, given to secure the performCEPTIONS-FILING-"CERTIFICATE." ance of such contract. The complaint is in one paragraph, on which issues were duly joined. A trial was had by a jury, which returned a verdict against appellants for the sum of $2,200, on which judgment was rendered. Appellants filed their motion for a

Under Burns' Ann. St. 1914, § 657, requiring a proper showing that the bill of exceptions containing the evidence was filed either in open court or in the clerk's office before the evidence will be considered a part of the record, the clerk in order to certify must have a proper knowledge of the facts, as a "certificate" is a writing by which an officer or other person bears testi- new trial, which was overruled, and the mony that a fact has or has not taken place, a written testimony of the truth of any fact; and while an order book entry is not imperative since such fact may be shown by the clerk's certificate, such an entry is the better practice.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2319; Dec. Dig. 511(1). For other definitions, see Words and Phrases, First and Second Series, Certificate.]

proper exception reserved. Appellant Federal Union Surety Company (hereafter designated as the company) appealed, and assigned errors as follows: First, that the court erred in sustaining appellee, Schlosser's, demurrer to the amended third paragraph of appellant Federal Union Surety Company's answer. Second, that the court erred in over

pany's motion for a new trial. Appellant Wallace not having assigned errors presents no question to this court for consideration.

6. TRIAL 328-VERDICT-EFFECT-PARTIES. ruling appellant Federal Union Surety ComIn an action for breach of a contract between plaintiff and the individual defendant for the construction of a house, and upon a bond executed by such defendant as principal and by a surety company to secure the performance of the contract, where the jury were given a form of verdict for the plaintiff against the individual defendant, stating the amount of damages, and for a verdict for plaintiff against the defendant surety with an assessment of damages, a verdict, which, after striking out certain parts of the form and filing in certain blanks, found for plaintiff against the defendant surety company and assessing damages, was not an implied finding in favor of the individual defendant, or that there had been no default so as to entitle the defendant surety to judgment.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 771-773; Dec. Dig. 328.] 7. TRIAL 328-INCOMPLETE VERDICT-PRO

CEDURE.

Such verdict being either incomplete and therefore defective because silent as to the individual defendant, or a nullity because contradictory if silence as to him was to be taken as a finding in his favor, no judgment could be rendered thereon.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 771-773; Dec. Dig. 328.] 8. TRIAL 339(3)-VERDICT-AMENDMENT. A defective verdict may be amended at any time before the discharge of the jury, and it is proper to require a jury to return to the jury room under proper instructions where the verdict does not respond to all the issues submitted. [Ed. Note. For other cases, see Trial, Cent. Dig. 793; Dec. Dig. 339(3).]

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

[1, 2] Appellant company not only impliedly waives its first assignment of error by failing to present the same in its brief, but expressly does so by a statement under the head "Proposition," which leaves the action of the court in overruling the motion for a new trial, as the only error for the consideration of this court. Appellee contends that the evidence is not in the record, as there is no proper showing that the bill of exceptions containing the evidence was filed either in open court or in the clerk's office, as required by section 657, Burns 1914. Such fact must

be shown before the evidence will be considered a part of the record. Elrod v. Purlée (1905) 165 Ind. 239, 73 N. E. 589, 74 N. E. 1085;

McCormick Harvester Co. v. Smith (1899) 21 Ind. App. 617, 52 N. E. 1000.

[3] It has been repeatedly held that the filing of the bill of exceptions may be shown, either by an order book entry, or the certificate of the clerk to the transcript. McCormick Harvester Co. v. Smith, supra; Ladoga Can. Co. v. Corydon Can. Co. (1912) 52 Ind. App. 23, 98 N. E. 849. Appellants have not pointed out any order book entry showing such filing, and we therefore as

sume there is none.

[4, 5] The question then arises, Is such filing shown in any other recognized manner? Action by Samuel Schlosser against the Appellants evidently rely on the clerk's cerFederal Union Surety Company and William tificate to the transcript to show such fact. L. Wallace. Judgment for plaintiff, motion We find two certificates by the clerk; one, for new trial overruled, and defendants ap- evidently the original certificate, bearing date peal. Affirmed.

of July 31, 1914, and another, bearing date

The objection made by appellee that the It will be observed that the clerk making transcript of the clerk is not in the record the certificate expressly states in substance has been met by an amendment, subsequentthat there is no memorandum of such filingly made under authority of this court, and in his office; that he has no independent need not now be considered. recollection of such filing being made; and that he makes the statements he does with reference thereto, solely on belief, based on such information. We cannot hold that such a certificate is a sufficient showing as to the filing of such bill of exceptions. A legal