a complaint and counterclaim, with denials thereto. The court, in a trial without a jury, found in favor of appellant on its complaint, and in favor of appellees on the counterclaim, and judgment was rendered accordingly. On motion, the judgment was afterwards modified with respect to attorney fees, but the court refused to modify it, so as to increase the general recovery. The following errors are assigned and relied on for reversal: (1) The court erred in overruling the motion of appellant to change and modify the judgment, so as to increase the same by the sum of $115. (2) The court erred in overruling the motion of appellant to change and modify the judgment. (3) The court erred in overruling the motion of appellant for a new trial. [1] Appellant's motion for a new trial contains more than 20 separate rulings or causes. In its brief, under "Points and Propositions," and under the heading of "Ruling on Motion for a New Trial," appellant has set out 10 abstract propositions of law, none of which disclose any connection with any specific cause for new trial. Under the rules as construed by this and the Supreme Court no question is presented. Leach V. State, 177 Ind. 234, 97 N. E. 792; Reed v. Farmers' Bank, 119 N. E. 261. [2] It is further insisted that no question is presented upon the motion to modify the judgment, as no authority is cited in support of the proposition. Appellant's brief, under its points and propositions, contains but a bare statement of the alleged error, without any excuse for not supplying any authority in its support. It has been held that this is not sufficient to avoid a waiver of the question. Wysor Land Co. v. Jones, 24 Ind. App. 451, 56 N. E. 46; Wilson v. Nat. Fowler Bank, 47 Ind. App. 689, 691, 95 N. E. 269. Entry: Court finds for defendant, to which sidered, adjudged and decreed by the court that "It is therefore conruling plaintiff excepts. defendant do have and recover" all his costsis a "final judgment" from which appeal will lie, a judgment being final if it disposes of the entire controversy. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Final Judgment.] 2. NEW TRIAL 125-GROUNDS. Statements that finding and judginent is (1) contrary to law, (2) not sustained by suffievidence, and (4) contrary to law and the evicient evidence, (3) contrary to weight of the dence, are not grounds for new trial authorized by statute. 3. EVIDENCE 420(7)-PAROL EVIDENCE. notes sued upon at request of president of payee Where defendant alleged that he signed bank, as surety for the president, and that the note should not become binding until signed by the president, which was never done, question as to what defendant and president said about note was not subject to objection that it sought to explain a written contract by parol. Appeal from Superior Court, Lake County; Virgil Reiter, Judge. Suit by William Wright, receiver of the Indiana Trust & Savings Bank, against Mike Cohn. Judgment for defendant, motion for new trial overruled, and plaintiff appeals. Affirmed. L. V. Cravens, of Hammond, for appellant. Gavit, Hall & Smith, of Whiting, for appellee. FELT, J. Appellant brought suit against appellee on a promissory note alleged to have been executed by appellee to the Indiana Trust & Savings Bank. The complaint in one paragraph was answered by an answer in two paragraphs. The first paragraph was a verified denial of the execution of the note. In the second paragraph it was alleged, in substance, that appellee signed the note sued upon at the request of Charles E. Fowler, who was at the time president of said bank; that he signed the same as surety for said Fowler with an agreement and understanding by and between appellee, the bank, and said Fowler, that the note should not become a binding ob [3] Furthermore the record discloses that the decision of the court is not attacked by appellant's motion for a new trial, either upon the ground that it is not sustained by sufficient evidence, or that it is contrary to law. The correctness of the ruling on the motion to modify would necessarily depend upon the evidence, and, indulging in the presumption in favor of the ruling of the trial court, we must assume that the evidence was sufficient. In any event we would be precluded from reversing upon any error not affecting the substantial rights of the ap-ligation on appellee until the same was expellant. As supporting our conclusion, see Switow v. Dustman, 183 Ind. 625, 109 N. E. 745; Indianapolis, etc., R. Co. v. Sample, 58 Ind. App. 461, 108 N. E. 400; Sovereign Camp, etc., v. Latham, 59 Ind. App. 290, 107 N. E. 749; Camp v. Camp, 52 Ind. App. 250, 100 N. E. 478; Daniels v. Bruce, 176 Ind. 151, 95 N. E. 569; Illyes v. White River, etc., Co., 175 Ind. 118, 93 N. E. 670. Appeal dismissed. ecuted by said Fowler as principal; that appellee signed the note as surety only, and no consideration whatever moved to him on account thereof; that subsequently, without his knowledge or consent, the note was deposited in said bank as his obligation. The issues were closed by a reply in general denial to each paragraph of the answer. A trial by court resulted in a finding for the defendant as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "The court having had this cause under ad- [ant. The information sought by the quesvisement since the 20th day of November, 1914, tion was proper evidence under the issues now finds for the defendant, to which ruling of the court the plaintiff excepts. as tending to prove the facts of the trans"It is therefore considered, adjudged and de-action out of which the controversy arose. creed by the court that the defendant do have and recover of and from the plaintiff all his costs herein laid out and expended." Appellant's motion for a new trial was overruled. The only assignment of error not expressly waived by appellant in his brief is the action of the court in overruling the motion for a new trial. [1] Appellee contends that no question is presented by the appeal because there is no final judgment from which an appeal will lie. How far, if at all, the bank was bound by what was said and done, is a question quite apart from the admissibility of the evidence As against any objection urged, the evidence was admissible. No reversible error has been shown by appellant. Judgment affirmed. (68 Ind. App. 568) TOWN OF BLOOMFIELD v. WEST et al. (No. 9615.) (Appellate Court of Indiana, Division No. 1. Nov. 26, 1918.) 1. APPEAL AND Error -BRIEF-SUFFICIENCY. 757(3)—TRANSCRIPT Where the transcript covered 280 pages, and the brief set out an ordinance involved with notiffs, and a condensed recital in 6 lines of the tice to plaintiffs, a copy of the deed to plaintestimony of the town marshal who had destroyed the building and damages for which action plaintiffs sought, the presentation of the evidence was insufficient under rule 22. 2. APPEAL AND ERROR 757(3)-TRANSCRIPT -BRIEF-SUFFICIENCY. Appellee's contention cannot be sustained. It has been held that no particular form of words is essential to the rendition of a final and appealable judgment. A judgment is "final" if it disposes of the entire controversy, settles the rights of the litigants, and leaves nothing for further consideration. The entry in this case, though somewhat incomplete in statement, in substance meets and satisfies the essentials of a final judgment. State ex rel. Shenk v. Lung, 168 Ind. 553, 555, 80 N. E. 541; Kelley v. Augsperger, 171 Ind. 155, 156, 85 N. E. 1004; Baker v. Osborne, 55 Ind. App. Review of evidence being essential to deter518, 104 N. E. 97; O'Neil v. Hudson, 59 Ind.mine whether the verdict was sustained by sufficient evidence, whether the damages were excesApp. 541, 109 N. E. 792; Leach v. Webb, 62 sive, and whether peremptory instruction should Ind. App. 693, 113 N. E. 311.. have been given, and whether there was error in admitting and excluding evidence, such questions cannot be reviewed, where the requirements of rule 22 as to presentation of the evidence are not complied with. [2] Appellant in his motion for a new trial has assigned as causes the following: "(1) The finding and judgment of the court is contrary to law. "(2) The finding and judgment of the court is not sustained by sufficient evidence. "(3) The finding and judgment of the court is contrary to the weight of the evidence. "(4) The finding and judgment of the court is contrary to law and the evidence." Such statements are not grounds for a new trial authorized by the statute and have been held insufficient. Bradford v. Wegg, 56 Ind. App. 39, 40, 102 N. E. 845, and cases cited; Ferdinand R. Co. v. Bretz, 59 Ind. 123, 124, 108 N. E. 967. [3] The only other question presented by appellant arises under the ninth alleged cause for a new trial, relating to a question asked the witness Samuel J. Cohn by appellee's 'counsel. He was in substance asked, what did your brother Mike say about any note, and what did Mr. Fowler say to your brother on that subject? Appellant's attorney objected on the ground that the question sought to explain a written contract by parol evidence and that any statement made by Mr. Fowler would not bind the bank. There is no suggestion in the question which warrants the objection that is sought to explain or vary the terms of a written contract. The issues present the question whether there was in fact any valid obligation or contract binding upon the defend use. 5. MUNICIPAL CORPORATIONS 623(1) ABATEMENT OF NUISANCE-POWERS OF CITY. If a nuisance arises from improper use of building and is not inherent in the structure, the city may regulate the use, but cannot destroy the building; and, if the offense is inherent in the structure, a demolition may not be resorted to if prior to the exercise of municipal authority the objectionable features have been removed. 6. APPEAL AND ERROR 1064(4)-HARMLESSERROR-REPETITION OF INSTRUCTION. The single repetition of a correct proposition of law in the course of nearly 30 instructions given does not constitute reversible error, even though not good practice. 7. APPEAL AND ERROR 1033(5)—HARMLESS ERROR INSTRUCTION TOO FAVORABLE TO COMPLAINING PARTY. In action for damages for demolition of building, the city cannot complain of an instruction failing to point out the effect of private abatement of a nuisance before municipal action; the error, if any, operating in its favor. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Monroe County; | a waiver of most of the grounds in appelRobert W. Myers, Judge. lant's motion for a new trial. A review of Action by Mary B. West and another the evidence, or of portions thereof, would against the Town of Bloomfield. Judgment be essential to our consideration of appelfor plaintiffs, and defendant appeals. firmed. Af-lant's contentions: (1) That the verdict is HOTTEL, J. Appellees are the owners of a certain lot in the town of Bloomfield on which, prior to the year 1910, there was maintained a frame structure which, for some years, had been used as a livery barn. On November 15, 1909, the town board of trustees duly and regularly adopted an ordinance which provided "that it shall be unlawful to erect, construct, or suffer to remain standing, any building or structure that will be or has become unsafe for occupancy, or dangerous or detrimental to life, health, or safety to property within the corporate boundaries of said town of Bloomfield. Any such building or structure is hereby declared to be and to constitute a nuisance and shall be abated by demolition and removal by the town marshal on the order of said board of trustees" after the giving of certain pre scribed notice to the owner. In December, 1909, the board of trustees, by resolution, declared that, "owing to its unsafe and unsanitary condition," appellees' barn constituted a public nuisance in violation of the above ordinance, and directed its removal. Notice was subsequently served on appellees that the structure should be removed on or before June 11, 1910, but this order was not complied with, and, in August following the town marshal, acting under the direction of the board of trustees, entered on appellees' premises and demolished the building in question. Appellees subsequently instituted this action to recover damages for the alleged wrongful destruction of their property, and, from a judgment in their favor, this appeal is prosecuted. The sole error assigned challenges the action of the circuit court in overruling appellant's motion for a new trial. [1, 2] The transcript of the evidence in this case covers 280 pages of the record, but in the preparation of its brief appellant sets out only a copy of the documentary proof showing the passage of the ordinance above quoted and the notice to appellees, a copy of the deed of the property in question to appellees, and a condensed recital in six lines of the testimony of the town marshal who carried out the order of the board of trustees. This is clearly an insufficient presentation of the evidence under the requirements of Rule 22 (55 N. E. v), and that fact is now relied on by appellee as showing not sustained by sufficient evidence; (2) that erred in refusing appellant's request for a the damages are excessive; (3) that the court peremptory instruction in its favor and in refusing its tendered instructions 1, 2, 3, and 4; and (4) that the court erred in certain rulings on the admission and exclusion of evidence. But, under many decisions of this and the Supreme Court, we are now precluded from considering any of the above contentions. Meno v. State, 114 N. E. 689, 690; Goshen Milling Co. v. Bailey, 114 N. E. 869, 871; Adolph Kempner Co. v. Citizens' Bank, 116 N. E. 440, 443; Johnson v. Bebout, 59 Ind. App. 159, 160, 108 N. E. 967. The principal questions sought to be presented, however, arise out of the action of the trial court in giving to the jury instructions 7, 8, 9, 12, 14, and 15, and we proceed now to their consideration, with a view to determining whether, under any supposable state of the evidence, their giving was proper. Instruction 8 reads as follows: "In this case it is claimed by the defendant that when it passed a resolution condemning the property of the plaintiffs as a public nuisance, that at that time the building described in the complaint was so kept and managed that it was a public nuisance, and it is claimed by the plaintiffs that after the passage of said resolution made by the defendant that the plaintiffs abanit was then used. Now I instruct you that even doned the use of the livery barn and for which if, at the time of the passage of said resolution, the building was so used that it was a public nuisance, and that in April afterwards the plaintiffs abandoned the use thereof, which made it a public nuisance, and long before it was destroyed the manure and offal had been hauled away, and the pile of manure and dirt removed, and the building was unoccupied, closed, and locked, and was in a reasonably safe condition on the 3d day of August, 1910, when the defendant, by its officers and employés, demolished said building, then I instruct you that the defendant, if you find such to be the facts in this case, under the evidence, had no right to demolish and destroy said building, and the act of destroying and demolishing the same by the defendant's town marshal and those employed by were the owners of said building, would be enhim was wrongful, and the plaintiffs, if they titled to recover such damages as, under the evidence and instructions in this case, was done to said property by said defendant." In attacking this instruction, and others which present various phases of the same issue, appellant does not question the rule that a municipal corporation is liable for the wrongful acts of its officers which are either expressly authorized by the governing body of the corporation or are done by such officers without special authority, but within the scope of their duties and employment, and are subsequently ratified by the municipality. 4 Dillon on Municipal Corporations (5th Ed.) § 1652, and cases there cited. The contention is made, however, that the pleadings and the evidence in this case show that rect in their enunciation of the law, and they may be sustained without separate discussion. Instruction 15 is practically a repetition of instruction 8 and is further challenged on that ground, but the single repetition of a correct proposition of law in the course of nearly 30 instructions given does not constitute reversible error, even though not good practice. Terry v. Davenport, 170 Ind. 74, 77, 83 N. E. 636; Herbert v. Drew, 32 Ind. 364, 365. the act of the town marshal was not wrong- | structions 8, 9, 12, 14, and 15 are clearly corful, but was done under the express and proper direction of the board of trustees. Reliance is placed on the authorities which hold, in substance, that a town board of trustees has power to declare what constitutes a nuisance and to take such steps as are necessary and proper to prevent, abate, and remove the same; and that an ordinance adopted by the board under such power, if within constitutional limitations, cannot be attacked as unreasonable when invoked in the individual case. Beiling v. City of Evansville, 144 Ind. 644, 648, 42 N. E. 621, 35 L. R. A. 272; Skaggs v. City of Martinsville, 140 Ind. 476, 478, 39 N. E. 241, 33 L. R. A. 781, 49 Am. St. Rep. 209; Steffy v. Town of Monroe City, 135 Ind. 466, 467, 35 N. E. 121, 41 Am. St. Rep. 436; section 9005, cl. 4, Burns 1914. [3, 4] The rule announced in these authorities is too firmly established to require discussion in this opinion, but appellant, in its invocation of that rule, seems to lose sight of appellees' contention that the act of the town marshal did not constitute an abatement or removal of a nuisance, but was, in fact, a destruction of private property without just cause. As stated in City of Evansville v. Miller, 146 Ind. 613, 618, 45 N. E. 1054, 1056 (38 L. R. A. 161): "The rule is well settled that a municipal corporation, although empowered by law to declare what shall constitute a nuisance, may not de clare that to be one which in fact is not." [5] We think it a matter of judicial knowledge that a frame barn, or similar structure, lawfully and properly erected and maintained on private property in a reasonably safe condition, cannot, in and of itself, be a public nuisance. Baumgartner v. Hasty, 100 Ind. 575, 576, 50 Am. Rep. 830. The use or the condition of that structure, however, may become objectionable, and steps may then be taken to abate or remove the nuisance thus created, provided that such power is not exercised to a degree greater than is necessary to preserve the public interest. If the nuisance arises out of the improper use of a building, and is not inherent in the structure, the municipal corporation may regulate the matter of use; but it has no right, in the exercise of its police or other power, to order a destruction of the building; and, if the offense is inherent in the structure, a demolition thereof may not be resorted to if, prior to the exercise of municipal authority, the objectionable features have been eliminated by the property owner. First Nat. Bank v. Sarlls, 129 Ind. 201, 206, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185; Barclay v. Commonwealth, 25 Pa. 503, 505, 64 Am. Dec. 715; Miller v. Burch, 32 Tex. 208, 210, 5 Am. Rep. 242. [7] Instruction 7 is incomplete, in that it fails to point out the effect of a private abatement of a nuisance which is about to become the object of municipal action; but this omission, and the error, if any, which was occasioned thereby, operated in appellant's favor, and it may not now complain. No other questions are properly presented, and a consideration of the entire record convinces us that substantial Justice has been done. Judgment affirmed. (68 Ind. App. 575) ENTERPRISE FENCE & FOUNDRY CO. v. (Appellate Court of Indiana, Division No. 2. 1. MASTER AND SERVANT 385(11) · WORKMEN'S COMPENSATION-SUBMISSION TO OPERATION. An insured employé seeking compensation under the Workmen's Compensation Act must submit to an operation which will cure him, when so advised by his attending physician, when not attended with danger to life or health or extraordinary suffering, and he cannot obtain compensation for a permanent impairment resulting from such refusal. 2. MASTER AND SERVANT 380-WORKMEN'S COMPENSATION-SUBMISSION TO OPERATION. In a proceeding for compensation under the Workmen's Compensation Act for a permanent injury to a hand, claimant's refusal to allow amputation of his finger was not unreasonable or willful misconduct prejudicing additional compensation, where his physician stated that the finger could be saved. 3. MASTER AND SERVANT 419-WORKMEN'S COMPENSATION-INCREASE OF AWArd. Where compensation for the loss of an employe's finger has been awarded by the Industrial Board as provided for by Burns' Ann. St. Supp. 1918, §§ 8020, 8021, the award may be modified and increased upon a showing that the employé's use of hand because of infection had been permanently impaired. Appeal from Industrial Board. Proceeding under the Workmen's Compensation Act by Edward Majors, opposed by the Enterprise Fence & Foundry Company, employer. From an award of compensation, the employer appeals. Affirmed. Orbison & Olive, of Indianapolis, for appellant. W. S. Taylor, of Indianapolis, for appellee. [6] Under the authorities just cited, in- 6, 1917, while in the employ of appellant, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes There is evidence in this case, and the Industrial Board found: which injury consisted of a “twist and lacera- | ing physician, when not attended with danger tion of the index finger of the right hand." to life or health or extraordinary suffering, Appellant had actual knowledge of the in- and, if as a result of such refusal on his part jury when it was received, made its report he suffers a permanent impairment, the emof the same at that time, and filed it with ployer will not be required to compensate the Industrial Board on March 14, 1917. him for the resulting permanent impairment. On the 30th of March the parties agreed on 1 Honnold, W. C. 525; Jendrus v. Detroit the compensation which should be paid ap- Steel Products Co., 178 Mich. 265, 144 N. W. pellee, which was $6.81 a week during his 563, L. R. A. 1916A, 381, Ann. Cas. 1915D, total disability not to exceed 500 weeks, and 476. the necessary and reasonable surgical, medical, and hospital expenses occasioned by the injury during the first 30 days thereafter. "That at the time of the injury the attending This agreement was approved by the board surgeon employed by appellant at first advised on April 2, 1917. On the 19th of April ap- appellee remonstrated and insisted that the finthe amputation of appellee's index finger. That pellee's injured finger was amputated at the ger should be saved if possible, and, in response middle joint. At that time the parties en- to the objection of appellee, the attending physitered into a supplemental agreement pursu-cian advised that he had saved fingers as badly ant to sections 8020, 8021, Burns' Supp. 1918, to make an effort to save the finger. The finger injured as that of appellee, and it was agreed wherein appellant agreed to pay appellee for was not amputated at that time, but was treated a period of 15 weeks the sum of $6.81 each for some period in an endeavor to save it. That week, which was 55 per cent. of his average the whole of plaintiff's right hand, and made necinfection developed which involved practically weekly wage. This agreement was likewise essary the amputation of the index finger, which filed with the Industrial Board, and approved was amputated at the middle joint. by it April 26, 1917. Appellant has fully That the infection developed because of the depaid the compensation provided for in such lay in the amputation. That the plaintiff's refusal to accept the amputation at the time of the supplemental agreement. injury was made in good faith with a view of saving the finger if possible. That his refusal was not willful, stubborn, or without reason." On September 10, 1917, appellee filed petition with the Industrial Board which he terms his "Application for Adjustment," and in which he asks for a review of the agreed reward of April 19, 1917. The material averments of his petition are that as a result of his injury the second and ring fingers of his right hand were left stiff and permanently injured. This petition was subsequently heard by the full board, and an award made granting to appellee 221⁄2 weeks' compensation at the rate of $6.81 per week to be paid in cash in a lump sum. It is from this award that appellant appeals and contends: (1) That the Industrial Board had no legal power to make appellee an additional award after the agreement of April 19, 1917, which agreement was fully executed by the parties in settlement of his claim and in all respects in conformity with the rules of the board more than seven days after the accident and duly approved by the board, and that there was no change of condition so far as the extent of the injury was concerned subsequent to the execution of such agreement. (2) That appellee cannot recover compensation for a permanent injury to his hand, when said permanent injury was due to his refusal to permit the attending surgeon to perform a surgical operation not of itself dangerous or attended with extraordinary suffering, which, if it had been performed when it was advised, would have prevented infection and saved the permanent impairment now complained of. [1] We will first dispose of appellant's second contention. The law seems to be well settled that an injured employé seeking compensation must submit to an operation which will cure him when so advised by his attend * [2] It would therefore seem to follow that appellee's insistence that his finger be saved if possible, when taken with the statement made by the surgeon, was not such unreasonable or willful misconduct as would prejudice the allowance of additional compensation. We are satisfied that the further contention of appellee has been determined by this court. In re Stone, 117 N. E. 669. In that case it is said: "Where the Industrial Board has approved an agreement under the Workmen's Compensation Act, it still has jurisdiction of the subject-matter, even if the agreement was intended as a compromise settlement of all compensation, and may consider all disputes with reference to compensation to be paid at any time before the case is finally disposed of." In this connection, the Industrial Board has found, in addition to what we have already set out: "That on the 19th day of April, 1917, plaintiff and defendant entered into a supplemental compensation agreement providing for the payment of 15 weeks' compensation at the rate of $6.81 per week for the loss of the index finger of the right hand at the middle joint; that pursuant to said agreement the defendant had paid to plaintiff 15 weeks' compensation at the rate of $6.81 the index finger at the middle joint, the adhesion per week; that, because of the amputation of of tendons, and permanent stiffness especially in the middle and second fingers of the right hand, the natural use and function of the whole said hand has been permanently impaired." [3] It is clear, we think, that by the supplemental agreement appellant intended to and did pay for the loss of appellee's index finger as provided for by said sections 8020, 8021, Burns' Supp. 1918. Nothing was allowed or paid for permanent or temporary partial disability thereafter, if any resulted |