McKee v. Anderson and Another.

to the overruling of the motion for a new trial on the ground of the insufficiency of the evidence, examined the evidence, and are of the opinion that it showed that the appellant had abundant cause for the arrest of the appellee.

The judgment is reversed, with costs.
F. T. Hord, for appellant.

MCKEE V. ANDERSON and Another.

ATTACHMENT.-Garnishee.-A. sued B. in a civil action, and also proceeded in attachment. C. was summoned to answer as garnishee. The affidavit alleged that C. "has money in his possession belonging to the defendant, and that as paymaster of" a certain railroad company "he owes the defendant on estimates of work, and now has the money in his possession, which the sheriff cannot attach in this action." Answer in denial.

Held, that a motion for a new trial did not present any question as to the sufficiency of the affidavit.

SAME.-Evidence.-The admission of a person summoned as a garnishee, that he is indebted to the defendant in the attachment proceeding, will sustain a judgment against him as garnishee.

APPEAL from the Marion Common Pleas.

DOWNEY, J.-The appellees sued Elston and others in a civil action, and in connection therewith took out an attach-ment and garnished the appellant and others. The only questions in the case relate to the correctness of the proceedings against the appellant as garnishee. The affidavit charges that he "has money in his possession belonging to the said defendants, and that as paymaster of the Indianap-' olis, Crawfordsville, and Danville Railroad Company he owes the said defendants on estimates of work (and now has the money in his possession), which the sheriff cannot attach in this action."

There was a denial of the allegations of the affidavit, on VOL. XXXV.—2

McKee v. Anderson and Another.

which issue the cause was tried by the court, and there was a finding that the garnishee "had in his possession, at the date of the service of summons of garnishment upon him, the sum of eight hundred dollars belonging to said defendants Charles N. Elston and Richard Dickson, and that the same ought now to be applied to the payment and satisfaction of the several claims found due the plaintiffs from said defendants," &c. This amount he was ordered to pay into the hands of the clerk for distribution among the creditors.

McKee moved the court for a new trial on account of the insufficiency of the evidence to sustain the finding, and because it was contrary to law. This motion was overruled. He then moved the court in arrest of judgment, because "no final judgment can be rendered against him for want of proper parties, he being but the agent of B. E. Smith & Co." This motion was also overruled, and final judgment rendered.

The only question made in the assignment of errors and in the brief is upon the refusal of the court to grant a new trial. The overruling of the motion in arrest of judgment is not assigned for error. It is assigned for error that the court erred in overruling the motion of the appellant to dismiss the attachment, but we do not find any mention of such a motion either in the record or in the brief.

The evidence is set out in a bill of exceptions, and is, we think, sufficient to sustain the finding of the court. A number of witnesses testify that McKee said, repeatedly, that he had that amount of money in his hands. We cannot say that any error was committed.

The judgment is affirmed, with five per cent. damages and costs.*

F. E. McDonald, F. M. Butler, and E. M. McDonald, for appellant.

L. Barbour and C. P. Jacobs, for appellees.

* Petition for a rehearing overruled.

The City of Jeffersonville v. The Steam Ferryboat John Shallcross and Another.

THE CITY OF JEFFERSONVILLE V. THE STEAM FERRYBOAT
JOHN SHALLCROSS and Another.

PLEADING.-Demurrer Waived by Answer.-A party cannot, at the same time, demur to and answer a complaint. By answering, he waives his demurrer. FERRY.-Franchise Lost by Non-User.The right of ferriage may be lost by

non-user.

SAME.-Assignee.-A party who, by non-user, has lost his franchise, cannot transfer any right by conveyance or assignment.

WHARF-Right of City to Construct.--Cities have power to construct wharves and collect wharfage.

SAME.-Repair-The voluntary expenditure of money by a stranger in repairing the wharf of a city will not create a liability against the city.

SAME.-Duty of City to Repair.—A city can be compelled to repair her wharves, and may be liable in damages for failure to do so.

SAME.-Liability of Parties who Use the Wharves.-A party who uses the wharves of a city cannot defeat the city's claim for wharfage by showing that the wharves are out of repair.

JURISDICTION-Claims for Wharfage.-The state courts have jurisdiction to enforce the collection of claims for wharfage.

SAME.-A claim for wharfage against a domestic vessel is not of admiralty jurisdiction.

PRACTICE. Judgment.-Where the evidence is in the form of an agreed statement of facts, and there is no reason for another trial, the Supreme Court will pronounce judgment without remanding the case for trial.

APPEAL from the Clark Circuit Court.

DOWNEY, J.-This was an action by the appellant to recover for the use of the wharf, at said city of Jeffersonville, by said steam ferryboat, in carrying passengers, &c., between Jeffersonville, Indiana, and Louisville, Kentucky. The suit was commenced before the mayor of the city of Jeffersonville, where there was judgment for the plaintiff, and the said boat having been attached and released on account of a bond having been filed, there was judgment by default against the ferry company, but no order for the sale of the boat. The process had been served on the captain of the boat, on one of the owners thereof, and the treasurer and acting superintendent.

The company appealed to the circuit court. The case having ended in the circuit court in a judgment for the de

165

The City of Jeffersonville v. The Steam Ferryboat John Shallcross and Another.

fendants, came to this court, and can be found reported on page 100, 27 Ind. On its return to the circuit court, the demurrer to the fourth paragraph of the answer was sustained, the second and third paragraphs were withdrawn, and a demurrer to the complaint filed by the defendants, alleging that the complaint did not state facts sufficient to constitute a cause of action, was filed and overruled, and the defendants excepted. The defendants then refiled the second and third paragraphs of the answer. The plaintiff demurred to these paragraphs of the answer, the demurrer was overruled, and the plaintiff excepted. There was a reply by the denial of the second and third paragraphs of the answer. Trial by the court, on an agreed statement of facts; finding for the defendants; motion for a new trial overruled; and judgment for the defendants. Several errors are assigned by the appellant, and cross errors are assigned by the appellees.

The first question made by the appellant is, that the complaint is insufficient. The plaintiff insists that as the first paragraph of the answer was not withdrawn with the second and third, but was on file when the demurrer to the complaint was filed and passed upon, the demurrer was rightly overruled, for this reason, if for no other, that a party cannot plead and demur at the same time.

This court held, in Hosier v. Eliason, 14 Ind. 523, that "a party cannot demur and answer to the merits at the same time to the same paragraph. Hence, when this is attempted, either the demurrer or answer must give way. The rule is, in such case, that the answer overrules the demurrer and puts it out of the case." Following this rule, we must regard the demurrer as out of the case; and as there is no assignment of error alleging the insufficiency of the complaint, no question with reference to that is before us.

The next question in chronological order relates to the sufficiency of the second and third paragraphs of the answer. They are the same that the court held to be sufficient when the case was in this court before, and that were then

The City of Jeffersonville v. The Steam Ferryboat John Shallcross and Another.

disposed of as reported in 27 Ind., supra. We are not inclined to overrule the ruling of this court on this point as there expressed, though these paragraphs of the answer might be more satisfactory to us than they are.

The appellee complains of the ruling of the circuit court in sustaining the plaintiff's demurrer to the fourth paragraph of the answer. This was done in accordance with the mandate of this court, made when the case was here before, and we approve that ruling.

The next question is as to the correctness of the ruling of the circuit court in overruling the motion of the plaintiff for a new trial.

The claim of Bowman and of his devisees to a ferry franchise at the place in question was fully considered, on substantially the same facts as in this record, in the case of Bowman's Devisees v. Wathen, 2 McLean, 376, and in the same case on appeal to the Supreme Court of the United States, I How. 189. It was held in that case, in those courts, that the supposed ferry right of Bowman and his devisees had been utterly lost by non-user, and in consequence of the exercise of an adverse right by other parties. The case was decided by judge McLean in 1841, and it was affirmed by the Supreme Court of the United States in 1843. Long after this, in 1854, the defendants became the purchasers of this pretended right. It seems to us to follow, irresistibly, that if the right of Bowman and his devisees had been lost as above stated, the defendants acquired nothing by their alleged purchase of that right, and that their right to a ferry and to the free use of the wharf, if they have any, must rest upon other grounds than that which is furnished by that purchase.

The defendants or those under whom they claim are the same persons who contested the Bowman ferry claim set up in the case in 2 McLean and 1 Howard, supra, and prior to the time of that litigation and ever since they have maintained said ferry under licenses issued to them under the statutes of the State of Indiana.