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preme court shall not regard technical errors or defects or exceptions to any decision or action in the court below, which did not, in the opinion of the supreme court, prejudice the substantial rights of the defendant." Rev. St. 1894, § 1964 (Rev. St. 1881, § 1891). This statute has been invoked in many cases, some of which are Voght v. State, 145 Ind. 12, 43 N. E. 1049; Reed v. State, 141 Ind. 116, 40 N. E. 525; Strong v. State, 105 Ind. 1, 4 N. E. 293; Brown v. State, 105 Ind. 385, 5 N. E. 900; Epps v. State, 102 Ind. 539, 1 N. E. 491; Stout v. State, 96 Ind. 407; Galvin v. State, 93 Ind. 550. The cases do not establish a uniform rule from which to determine every case, and it seems that in any case the statute should be looked to for guidance. In Elliott, App. Proc. § 631, it is de- | clared that errors are not harmless where they relate to a primary or fundamental right, that affecting the cause of action rather than the mere procedure by which the cause is sought to be enforced. The statute in question renders harmless those errors, defects, and exceptions which do not "prejudice the substantial rights of the defendant." Is it therefore a substantial, primary, or fundamental right of an accused to submit conflicting evidence of questions of fact, of direct and vital importance, to the jury, without an assumption of their province in this regard by the court? We think this question must be answered in the affirmative. If such questions are in dispute upon the evidence, the trial court, in passing upon them, would usurp an exclusive function of the jury; and if this court, to support the trial court, should assume to adjust the conflict in the evidence, it would violate its own rule that it possesses no power to weigh and determine conflicts in the evidence, and would thereby repeat the error of the trial court. If there were no conflict, or if the evidence related to some merely incidental or uninfluential or unimportant fact, another phase of the question would be presented. In Elliott, App. Proc. § 643, it is said: "Where the evidence is uncontradicted, or where the complaining party could not have prevailed, no matter what the instructions were given, the rule may be readily and easily applied; but where there is some, although apparently no very material, conflict in the evidence, there is much difficulty in practically applying the general rule, inasmuch as in such cases there is danger of invading the province of the jury and usurping functions that do not belong to the court." We conclude, therefore, that the constitutional right to submit disputed questions of fact, involving essential elements of the case, to the jury, is a substantial right; and that, when it is invaded by the trial court, this court is given no right, by the statute, to hold such invasion harmless. For the error suggested, the judgment is reversed, with instructions to grant appellant's motion for a new trial.

(150 Ind. 332)

ERVIN et al. v. STATE ex rel. WALLEY! (Supreme Court of Indiana. Nov. 19, 1897.) GAMING - ACTION FOR MONEY LOST — PARTIES PLEADING-CONSTITUTIONAL LAWHARMLESS ERROR.

1. Title to money lost at gaming never vests in the winner, though the loser fails to seek its recovery; so that Rev. St. 1894, § 6678 (Rev. St. 1881, § 4953), authorizing recovery thereof in the name of the state for the benefit of the loser's wife or minor children in case he does not sue therefor within the time allowed him by section 6676, does not violate Const. art. 1, § 21, providing that "no man's property shall be taken without just compensation."

2. Rev. St. 1894, § 6678 (Rev. St. 1881, § 4953), authorizing recovery in the name of the state of money lost at gaming, is not inconsistent with Rev. St. 1894, §§ 251, 252 (Rev. St. 1881, §§ 251, 252), requiring every action to be prosecuted in the name of the real party in interest, except that a person expressly authorized by statute may sue without joining the person for whose benefit the action is prosecuted; the state being a person, under Rev. St. 1894, § 1309 (Rev. St. 1881, 1285), declaring that "the word 'person' extends to bodies politic and corporate."

3. Rev. St. 1894, § 6676 (Rev. St. 1881, § 4951), providing that a person losing money at gaming, and paying it, may within six months thereafter recover it by action; and Rev. St. 1894, § 6678 (Rev. St. 1881, § 4953), providing that, if the loser shall not within such time sue and with effect prosecute for the money, it shall be the duty of the prosecuting attorney, on information filed, "by such action as aforesaid," to sue for the same in the name of the state,not only do not require, but do not permit, the action by the state within the six months allowed the loser for suit.

4. The several paragraphs of a complaint founded on a public statute need not state the action is founded on the statute, and refer to it by title and date of passage, but the court is bound to take judicial notice of the statute; and it is enough for each paragraph to state sufficient facts to enable the court to know the action is founded on the statute.

5. Complaint by the state to recover, for the loser's wife, money lost at gaming, sufficiently states that the money was paid defendants, by alleging that defendants are indebted to plaintiff for the use and benefit of N. in the sum of $6,000 lost by W. to defendants at gaming, and had and received by defendants for the use, and benefit of W., the husband of N.; it being provided by Rev. St. 1894, § 6677 (Rev. St. 1881, § 4952), following the section authorizing action by a loser at gaming, that "in such action it shall be sufficient for the plaintiff to allege that defendant has received, for the plaintiff's use, the money so lost and paid."

6. Action for the benefit of the wife of the loser at gaming is prosecuted in the name of the state as sole plaintiff, as required by Rev. St. 1894, § 6678 (Rev. St. 1881, § 4953), though the wife is named as relator.

7. Action by the state for the benefit of the wife whose money is lost at gaming by her husband, holding it in trust for her, is not authorized by Rev. St. 1894, § 6678 (Rev. St. 1881, § 4953), providing for action by the state for the benefit of the wife of one who loses money at gaming, and does not sue to recover it, as authorized by section 6676, Rev. St. 1894 (section 4951, Rev. St. 1881); as, if the money was lost without her knowledge, she would have a common-law right of action against the winner as a trustee de son tort, and if it was lost with her knowledge and consent, so that she was the real loser, the action would be in her own name, un der section 6676, Rev. St. 1894 (section 4951, Rev. St. 1881).

Rehearing denied.

8. Error in failing to sustain demurrer to a paragraph of complaint stating no cause of action is not harmless where the record fails to show that verdict and judgment for plaintiff rest exclusively on other paragraphs.

9. Rev. St. 1894, § 348 (Rev. St. 1881, § 345), declaring that "no objection taken by demurrer and overruled shall * reverse the judgment, if it appear from the whole record that the merits of the cause have been fairly determined," has no application to an action in the name of the state for the benefit of a person, where the cause of action stated in the paragraph demurred to was one requiring the action to be in the name of such person, and the record fails to show that plaintiff's judgment does not rest on such paragraph.

Appeal from circuit court, Delaware county: George W. Koons, Judge.

Action by the state, on the relation of Nellie A. Walley, against John R. Ervin and another. Judgment for plaintiff. Defendants appeal. Reversed.

Ryan & Thompson and Warner & Brady, for appellants. J. N. Templer & Son, M. E. Forkner, and J. G. Leffler, for appellee.

MCCABE, C. J. The appellee sued the appellants to recover money alleged to have been lost by William A. Walley, the relator's husband, to the appellees, by betting on a game called "faro," under sections 6676 and 6678, Rev. St. 1894 (sections 4951, 4953, Rev. St. 1881). The complaint was in five paragraphs, and the court overruled a several demurrer by the defendants to each paragraph, for want of sufficient facts, and that the plaintiff had no capacity to sue. A trial of the issues resulted in a verdict and judgment for $5,414.50, over appellants' several and joint motions for a new trial. The court also overruled appellants' motion to modify the judgment. The errors assigned call in question these several rulings, and also call in question the sufficiency of the complaint.

The first question presented in support of the alleged insufficiency of each paragraph of the complaint is that the statute on which the action is founded is unconstitutional. If this charge against the statute is true, the people of the state are a little late in discovering it, because the statute has been substantially in force for over half a century, and has been several times under consideration by this court in actions founded on it appealed here. The second section of the act, as its sections are numbered in the revision of 1852, being section 6676, Rev. St. 1894 (section 4951, Rev. St. 1881), reads thus: "If any person by betting on any game, or betting on the hands or sides of such as play at any game, shall lose to any one any money, or valuable thing, and shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same, may, within six months next following, recover the money or other valuable thing so lost and paid or delivered, or any part thereof, with costs of suit, by action founded on this act, to be prosecuted in any court hav

ing jurisdiction thereof." The fourth section, old number, being section 6678, Rev. St. 1894 (section 4953, Rev. St. 1881), leads thus: "In case the party so losing such money or other thing aforesaid shall not, within the time aforesaid, bona fide sue and with effect prosecute for the money or thing so lost and paid or delivered, it shall be the duty of the prosecuting attorney, on information filed with him by such action as aforesaid, to sue for and recover the same in the name of the state, with costs of suit, against any such winner, for the benefit of the wife or minor children, or either of them, if living, in the order herein named, of the person losing the same; and in case there shall be no such wife or minor children, then for the benefit of the common schools." It is contended that this statute authorizes the property of one man to be taken by the courts, and conferred on another. It is contended that, in case the loser fails to prosecute and recover the lost money, it then becomes the property of the winner, and that it cannot be taken from him, and given to the wife or children of the loser, or to the common schools, without just compensation; that the statute, in so far as it authorizes a recovery for the benefit of the wife, children, or common schools, violates section 21 of article 1 of the state constitution, providing that "no man's property shall be taken without just compensation." Rev. St. 1894, § 66 (Rev. St. 1881, § 66). But appellants' counsel are in error in supposing that title to money or property lost at gaming ever vests in the winner. It is true, without the aid of this statute, the loser cannot recover back money or other property which has been paid or delivered on gambling contracts or a bet, because it was so lost în a transaction which is in violation of the criminal law of the state, and, the parties being in pari delicto, the law will not aid either of them. 8 Am. & Eng. Enc. Law, 1021, and notes. Most, if not all, of the states, have statutes of a similar character, and none of them have ever been held unconstitutional. 8 Am. & Eng. Enc. Law, supra.

It is also contended that the loser has a title to the lost money or property, and to take it from him, and confer it on his wife or children, would be taking his property without just compensation, in violation of the constitutional provision mentioned. But it is not true that it takes his property without compensation. He has lost his property, and it has passed beyond his reach, by his failure to sue to recover it within six months. Nor do we think there is any just or reasonable ground for holding the statute unconstitutional.

It is next contended that the demurrers ought to have been sustained, because the action is not prosecuted in the name of the real party in interest, namely, Nellie A. Walley, but is prosecuted in the name of the

state. It is conceded that the statute on which the action is founded authorizes the prosecution of the action in the name of the state for the benefit of the wife of the loser under certain circumstances; but it is contended that such statute was passed prior to the Code, and that the Code makes a different provision in relation thereto, and must be deemed the last expression of the legislative will, and controlling in this respect. Conceding, without deciding, that such was the order of passage of the two statutes, and that the last act would have the effect to modify the first in so far as inconsistent therewith, we do not think that there was any such inconsistency. Section 251, Rev. St. 1894 (section 251, Rev. St. 1881), provides that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section." The next section provides that "an executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted." The state is authorized by the statute in question to sue for the benefit of another, and the state is within the meaning of the last section of the Code if the word "person," as used therein, may be held to include the state. Among the rules for the construction of the Code, it is provided, in section 1309, Rev. St. 1894 (section 1285, Rev. St. 1881), that "the word 'person' extends to bodies politic and corporate." Webster defines the words "body politic" to be "the collective body of a nation or state as politically organized, or as exercising political functions; also a corporation." Therefore we hold that the Code does not require the action to be brought in the name of the real party in interest, where, as here, a personthe state is expressly authorized by statute to sue without joining the person for whose benefit the action is prosecuted.

The next ground taken against the sufficiency of the several paragraphs of the complaint is that each paragraph shows that more than six months had elapsed since the money sued for had been lost at the commencement of the action. It is contended on behalf of appellants that the action the right of which is created by the statute must be commenced within six months next following the losing and paying or delivering the money or other valuable thing, and that, after such six months expire, the right of action is gone, not only as to the loser, but as to the state as well. It is undoubtedly true that the right of action in the loser is gone at the expiration of six months next after the payment or delivery of the thing lost, by the express terms of the statute. But it is not so as to the state. The state's right of action on the statute never accrues until the loser's right thereto expires; and his right does not expire until six months after the payment or delivery of the thing

lost in the bet or on the game. The state cannot begin the action as long as the loser has the right to sue, and that right continues in the loser until the last moment of the six months has expired. Then, and not till then, does the right to sue accrue to the state. "In case the loser shall not, within the time aforesaid [which is six months], bona fide sue," etc., "it shall be the duty of the prosecuting attorney, on information filed by such action as aforesaid, to sue," etc. Appellants contend that the words "such action as aforesaid" refer to the action authorized by the first section above quoted to be prosecuted by the loser, and that the second section quoted means to clothe the state with the same right of action created by the previous section in the loser, and that right, by the express terms of the section, subsisted only six months next following the payment or delivery of the money or other valuable thing so lost by a bet on a game. Undoubtedly, the words "by such action as aforesaid" refer to the action the right to which is created in the previous section in favor of the loser. It is sufficiently clear to leave no doubt that the same right of action thus created in the loser should at some time pass from him, and vest in the state, for the benefit of the wife and children, or, if there be no wife or children, the common schools, in the order named. But it could not have been intended to confer on and vest in the state the identical right of action first vested in the loser, both in form and substance, because that would have required the action brought by and in the name of the state, as well as that in the name of the loser, to be brought within six months next following the payment or delivery of the money or thing lost. That would bring the statute into contradiction of itself, because it provides that, on failure of the loser to sue for six months, the action may be brought in the name of the state, for the benefit of othAppellants' contention would result in making it mean that the action must not be brought in the name of the state at all, for the benefit of others, but it must be brought only in the name of the loser, and not for the benefit of others. That construction would result in making the statute mean that the right of action was created in the loser and in the state separately, to continue in each separately for six months; and, if that is true, each would recover during that period the whole of the lost money. Such a construction would make nonsense of the statute. The true construction of the statute is that, at the expiration of the six months, the right of action created in the loser, if he shall not sue within that time, passes to and vests in the state, for the benefit of the wife, etc. It does not mean that the identical form of action shall be vested in the state, but the substance thereof passes to and vests in the state the right to recover the money or thing lost. It does not

ers.

mean that it shall be brought in six months, nor that it shall be brought by or in the name of the loser, nor for his benefit, all of which would be true if the words "it shall be the duty of the prosecuting attorney, * * by such action aforesaid, to sue," etc., mean the identical action first vested in the loser.

It is also contended that the failure of each paragraph of the complaint to state that the action was founded on the statute, referring to it by title and date of passage, rendered it bad on demurrer. The statute being a public statute, the courts are bound to take judicial cognizance thereof, without pleading it; and the facts stated in each paragraph of complaint were sufficient to enable the court to know that the action was founded on the statute.

It is further contended that none of the paragraphs are good, because no one of them alleges that the money lost was paid to any of the defendants. The third paragraph on this point states "that the defendants are indebted to the plaintiff for the use and benefit of Nellie A. Walley, * in the sum of $6,000, • lost by William A. Walley to the defendants at gaming, by betting and wagering upon the game at cards known as 'faro,' * and had and received by the defendants for the use and benefit of one William A. Walley,

* *

the husband," etc. We are inclined to think this language is sufficient to convey the meaning that the money had been paid in compliance with the provision of the section first quoted, requiring, as one of the conditions upon which the right of action is conferred, that the loser "shall pay or deliver the same," the money, etc. But, if it be not sufficient, the section next following the one creating the right of action in the loser, being the third, old number (Rev. St. 1894, § 6677; Rev. St. 1881, § 4952), reads as follows: "In such action it shall be sufficient for the plaintiff to allege that the defendant has received, for the plaintiff's use, the money so lost and paid, or that he has converted the goods won of the plaintiff to his the defendant's use, without setting forth the special matter." While this section primarily applies to the complaint to be filed by the loser, yet it seems clear that the legislature must have intended it to apply in so far as it could be made applicable to the action when brought by the state. There seems no reason why the allegation as to the payment of the money by the loser to the winner should not be the same in both actions provided for. The other paragraphs, as to this point, are as good as the third, from which we have quoted; and, as to that objection, we think they are all sufficient, at least by the aid of the section of the statute last quoted.

It is further contended that the state alone is the only proper party plaintiff, where, as nere, the action is brought for the benefit of

the wife of the loser. The statute quoted requires the action in such cases as this to be brought in the name of the state. That means that the state must be the plaintiff. It requires no relator. Shane v. Francis, 30 Ind. 92. But the action here is brought in the name of the state as plaintiff. The relator is not a party plaintiff, but is simply a relator. If she becomes a party plaintiff by being named as a relator, it would make the complaint bad in every paragraph for want of sufficient facts. This is so because the right of action is not vested in her by the statute; and it has been long settled in this court that a complaint by several plaintiffs that fails to state a cause of action in favor of any one or more of them is bad on demurrer for want of sufficient facts as to all of them so joined. Nave v. Hadley, 74 Ind. 155; Schee v. Wiseman, 79 Ind. 389; Insurance Co. v. Kittles, 81 Ind. 96; Headrick v. Brattain, 83 Ind. 188; Thomas v. Irwin, 90 Ind. 557; Field v. Holzman, 93 Ind. 205; Jones v. Cardwell, 98 Ind. 331; Holzman v. Hibben, 100 Ind. 338; Brumfield v. Drook, 101 Ind. 190; Railway Co. v. Cosby, 107 Ind. 32, 7 N. E. 373; Brown v. Critchell, 110 Ind. 31, 7 N. E. 888, 11 N. E. 486; Peters v. Guthrie, 119 Ind. 44, 20 N. E. 536; Evans v. Schafer, 119 Ind. 49, 21 N. E. 448; Kelley v. Adams, 120 Ind. 340, 22 N. E. 317; Nicodemus v. Simons, 121 Ind. 564, 23 N. E. 521; Pfister v. Gerwig, 122 Ind. 567, 23 N. E. 1041; Renihan v. Wright, 125 Ind. 536, 25 N. E. 822; Railroad Co. v. Priest, 131 Ind. 413, 31 N. E. 77. But, the naming of the relator not having the effect of making her a party plaintiff, the state is the sole party plaintiff, and the action was prosecuted in its name as plaintiff; hence that part of the complaint naming Nellie A. Walley as relator is mere surplusage, and does not vitiate the complaint. It is also contended that the fourth paragraph of the complaint is bad on demurrer, for want of sufficient facts, because it alleges "that the $6,000 of money so lost by the said William A. Walley was then and there the personal property of and belonged to the said Nellie Walley, * the same being

at the several times it was wagered, lost, and paid, as aforesaid, in the possession of the said William A. Walley, her husband, as her trustee." The action authorized by the statute under consideration is one that could not be maintained at common law. Because of the parties to the bet being in pari delicto, the common law would leave them where they had placed themselves. Woodcock v. McQueen, 11 Ind. 14; McHatton v. Bates, 4 Blackf. 63. Nor would the action lie at common law to recover the money in the name of the state, or anybody else, for the benefit of the wife or children of the loser, nor for the benefit of the common schools. In other words, the legislature, in passing the statute, intended to create a new right of action, that had no existence at common law, and such a right of action as could rest alone upon the statute. The statute, nor any part thereof, cannot be ap

plied to aid or help a cause of action the right to maintain and prosecute which existed at common law independent of and without the statute. If the money, as alleged in the fourth paragraph, was the personal property of Nellie A. Walley, and her husband had possession of it as her trustee, he had no right to gamble it away. "It is now a universal

rule that all those who take under the trustee, except purchasers for a valuable consideration, without notice, take subject to the trust." 1 Perry, Trusts, § 346. The winner of her money became her trustee therefor, and liable to account and pay over the same to her. 2 Perry, Trusts, § 828. Having received the money in violation of law and without any consideration, he became a trustee de son tort, and liable to a suit by the cestui que trust to recover the money. 1 Perry, Trusts,

245. To the same effect are McFadden v. Wilson, 96 Ind. 253; Causidere v. Beers, 1 Abb. Dec. 333; Mason v. Waite, 17 Mass. 560; Doyle v. McIntyre, 71 Ga. 673; Corner v. Pendleton, 8 Md. 337; Burnham v. Fisher, 25 Vt. 514; Pierson v. Fuhrmann (Colo. App.) 27 Pac. 1015; Conway v. Conway (Sup.) 24 N. Y. Supp. 261; McAllister v. Oberne, 42 Ill. App. 281. It therefore clearly appears that the statute in question does not provide for the recovery of the wife's money gambled away by her husband, either in the name of the state as plaintiff or in any other name, because she already had the right to recover it in her own name. Though she was a married woman, whose husband was still living, the statute empowered her to sue alone. vides that "a married woman may sue alone First, when the action concerns her separate property." Rev. St. 1894, § 255 (Rev. St. 1881, 254). The allegations of the paragraph show that the money was her separate property, and this court has held correctly that she may sue concerning it alone, without Joining her husband. Mills v. Winter, 94 Ind. 329.

It pro

Another section of the Code, already referred to, goes further than to confer upon her permissive authority to sue in her own name, but imperatively requires, as we have seen, that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section." And the next section, as already observed, provides that "a person expressly authorized by statute may sue, without joining with him the person for whose benefit the action is prosecuted." Rev. St. 1894, §§ 251, 252 (Rev. St. 1881, §§ 251, 252). But we have already seen that the statute on which this action is founded does not authorize the state or any other person to sue for the benefit of the owner of money gambled away by the trustee of the owner. But, going beyond the briefs on either side, it may be said that there is no allegation in the fourth paragraph that Nellie A. Walley's money was gambled away by her husband and trustee without her knowledge and consent; and hence it may be urged that, as there is nothing in the paragraph negativ

ing such knowledge, consent, or direction, the transaction may be regarded as one in which she was particeps criminis, and therefore the loser, within the meaning of the statute, and authorized to recover by action founded on the statute. This, however, would make the paragraph still worse. If she participated in the illegal transaction, and thereby became the loser, and, as such, authorized to recover her money by action founded on the statute, she must sue in her own name, just as her husband or anybody else must when suing as loser. But that is not all. She must sue within six months. But the paragraph expressly states that more than six months had elapsed when the action was brought; so that it will not aid the paragraph to indulge the presumption that Mrs. Walley's money was gambled away with her knowledge, consent, and direction, in the absence of averments to the contrary. The presumption is to the contrary, and in favor of honesty and fair dealing, innocence, and against fraud. 1 Rice, Ev. pp. 88, 89, 96; Railway Co. v. Thompson, 107 Ind. 442, 8 N. E. 18, 9 N. E. 357; Hunt v. Elliott, 80 Ind. 245. Hence we are authorized to presume that her money, alleged to have been gambled away by her husband, was so gambled away without her knowledge, consent, or connivance, and hence a common-law right to recover it back on her behalf arose; and the Code authorized her to invoke that right of action in her own name, and prevents the action from being brought in any other name. Therefore the case made by the fourth paragraph of the complaint falls squarely within the first section above referred to, requiring that every action must be prosecuted in the name of the real party in interest. That party was Nellie A. Walley, and not the state of Indiana. Where the facts stated in the complaint show that the plaintiff is not the real party in interest, and there is no statute expressly authorizing the plaintiff to sue without joining with him the person for whose benefit the action is prose cuted, as is the case in this paragraph, such complaint is bad on demurrer for want of sufficient facts to constitute a cause of action. Rawlings v. Fuller, 31 Ind. 255; Smock v. Brush, 62 Ind. 156; Shoemaker v. Board, 36 Ind. 175; Board v. Jameson, 86 Ind. 154; Pixley v. Van Nostern, 100 Ind. 34. It follows that the fourth paragraph of the complaint does not state facts sufficient to constitute a cause of action, because the state, the sole plaintiff, had no right to maintain the action under the facts stated therein.

It is, however, contended by the learned counsel for the appellee, that the error, if error there was, in overruling the demurrer to the fourth paragraph, was harmless, and no cause for reversal. It is true, if it affirmatively appeared that the verdict and judgment rested on the other, or any of the other, paragraphs, then the error of overruling the demurrer to the fourth paragraph would be a harmless error. But the learned counsel

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