[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 542-544, 600-606; Dec. Dig. $222, 260.*] April 20, 1910, the motion for a new trial in the time and upon the grounds prescribed by was filed by appellant's attorneys. After- the statute. ward, as it appears in the record, but without date, the following entry is made: "And plaintiff excepts to giving of instructions Nos. 10 and 14 given by the court of its own motion separately and severally, and for refusing to give instructions Nos. 12 and 13 requested by the plaintiff."” It will be observed that the instructions are not brought into the record by a bill of exceptions as provided by section 660, Burns 1908. They are not made a part of the record in accordance with the provisions of sections 558, 559, and 560. Petrie v. Ludwig, 41 Ind. App. 310, 83 N. E. 770; Malott v. Hawkins, 159 Ind. 127, 138, 63 N. E. 308; Oglebay v. Tippecanoe, etc., Co., 41 Ind. App. 481, 82 N. E. 494. They are not properly in the record under the provisions of section 561, Burns 1908, because they are not authenticated by the signature of the judge, as required by the provisions of this section. Strong v. Ross, 36 Ind. App. 174, 75 N. E. 291; Cleveland, etc., Co. v. Powers, 173 Ind. 105, 88 N. E. 1073, 89 N. E. 485; Fowler v. Ft. Wayne, etc., Traction Co., 45 Ind. App. 441, 91 N. E. 47; Wiseman v. Gouldsberry, 45 Ind. App. 677, 91 N. E. 616; Indianapolis, etc., Co. v. Ragan, 171 Ind. 569, 86 N. E. 966; Hotmire v. O'Brien, 44 Ind. App. 694, 90 N. E. 33; Delaware, etc., Telephone Co. v. Fiske, 40 Ind. App. 348, 81 N. E. 1100; Supreme Tent v. Ethridge, 43 Ind. App. 475, 87 N. E. 1049; Inland Steel Co. v. Smith, 168 Ind. 245, 80 N. E. 538. They are not properly in the record under the provisions of section 691, Burns 1908, because the rec ord fails to disclose an order of court that 2. WILLS (8 222*)-PROBATE-REVOCATION FOR FRAUD. Notwithstanding Burns' Ann. St. 1908, § 3153, providing that if, prior to the admission of any will to probate before the clerk, objection in writing, verified by affidavit, alleging that it is not made for vexation or delay, is filed with the clerk, he shall continue the same until the next term of court, when, if the objection is made before the court, reasonable time shall be allowed to the party making it to resist the probate, and section 3154, providing that any person may contest the validity of the will or resist the probate thereof within three years after it is offered for probate by filing his allegation in writing, verified by affidavit, setting forth the unsoundness of mind of the testator, the ununder duress or obtained by fraud, or any other due execution of the will, that it was executed valid objection to its validity or to its probate, a party may bring an action to set aside the limited to an action on the grounds specified in probate for fraud in procuring it, and is not section 3154, in which he would assume the burden of proving testamentary capacity, nor is he required to bring such action as ancillary to an action under section 3154; and hence the court erred in holding the complaint in such an action demurrable, because it did not allege any of the grounds specified in section 3154. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 542-544; Dec. Dig. § 222.*] 3. WILLS (§ 203*)-PROBATE "JUDICIAL ACT." The probate of a will by the court is a "judicial act." [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 502, 503; Dec. Dig. § 203.* For other definitions, see Words and Phrases, vol. 4, pp. 3848-3853; vol. 8, p. 7697.] 4. WILLS (§ 225*)—PROBATE-REVOCATION FOR FRAUD. Where a person was induced to delay filrec-by the promise of the parties, who subsequently ing her protest against the probate of a will procured its probate, that they would take no steps to probate it until she had a reasonable probate, but the will was probated in violation time to determine whether she would resist the of such agreement, upon the affidavit of an attesting witness, who remembered nothing about the execution of the will, and who signed the affidavit without reading it, supposing that it so stated, the probate would be set aside; and hence a complaint in an action to set it aside, alleging such facts, was not demurrable. the instructions be made a part of the ord. Tell City Canning Co. v. Wilbur, 46 Ind. App. 551, 93 N. E. 174; Close v. Pittsburgh, etc., Co., 150 Ind. 560, 50 N. E. 560; Russ v. Russ, 142 Ind. 471, 474, 41 N. E. 941; Town v. Wilcoxen, 158 Ind. 359, 63 N. E. 566; Board v. Gibson, 158 Ind. 471, 63 N. E. 982; Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 53 N. E. 763. It is very doubtful if any proper exceptions were taken and saved as to the giving of any instructions by the court upon its own motion, or the refusal to give those tendered by appellant; but it is unnecessary to decide that question. It follows that the judgment of the lower court must be affirmed. FORT. WHITE et al. (No. 8,548.) (Appellate Court of Indiana, Division No. 1. March 7, 1913.) 1. WILLS (§§ 222, 260*)-RIGHT OF ACTION TO CONTEST OR SET ASIDE PROBATE. Actions to contest the validity and to resist or set aside the probate of a will are purely statutory, and can be maintained only with Where a motion to strike out parts of a petition did not set out the words sought to be stricken out, as required by Burns' Ann. St. 1908, § 662, the petition would be treated as originally filed, notwithstanding a ruling sustaining such motion; and hence such ruling was not ground for reversal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. § 1042.*] 6. APPEAL AND ERROR (§ 241*)_OBJECTIONS TO JUDGES AND PROCEEDINGS THEREON. Where no motion for a change of judge or ruling thereon was made and exception taken, separate from the motion for a change of venue, ruling, and exception, the denial of such of judge was not reviewable. change [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1413-1416; Dec. Dig. § 241.*] 7. VENUE (§ 36*)-CHANGE-STATUTORY PROVISIONS "CIVIL ACTION." An action to set aside the probate of a will because of fraud in procuring it is a "civil action," within Burns' Ann. St. 1908, § 422, authorizing changes of venue in civil actions. [Ed. Note.-For other cases, see Venue, Cent. Dig. $$ 54, 55; Dec. Dig. § 36.* For other definitions, see Words and Phrases, vol. 2, pp. 1183-1193; vol. 8, p. 7603.] Appeal from Circuit Court, Hancock County; Robert L. Mason, Judge. Action by Emma Fort against Stephen C. White, executor, and others. From a judgment for defendants on demurrer, plaintiff appeals. Reversed, with directions. Chauncey W. Duncan, of Greenfield, and HOTTEL, J. The character and nature of this action is indicated by the introductory paragraph of the verified petition, which is as follows: "Comes now Emma Fort, plaintiff in the above-entitled cause, and filing her petition herein to revoke and set aside the probate of the will of William G. Scott, deceased, and the letters testamentary there on issued to Stephen G. White, says." sonable time to consider and determine whether she would resist the probate thereof; that plaintiff relied on said promise and agreement and went to her home in Indianapolis; that later in the afternoon of the same day appellants, in violation of their said promise, notified, by telephone, Walter O. Bragg, one of the attesting witnesses, to come to Greenfield for the purpose of probat ing said will; that said Bragg arrived at Greenfield about 6:30 p. m. of said 26th day of April, 1911, the same being the third judicial day of the April term of the Han cock circuit court, and appeared in the office of the clerk of said court, and there, before such clerk, signed one of the printed blank forms in said office and swore to the same before said clerk, which was afterwards, to wit, on the 27th day of April, 1911, presented to the judge of the Hancock circuit court, and an order of the court made thereon probating said will; that said Hancock circuit court was in session on said 26th day of April, 1911, but had adjourned for the day when said Bragg appeared before the clerk of said court and signed said printed form of affidavit; that said Bragg did not appear in open court at any time, and was not examined in open court, nor before the judge of said court, in reference to the execution of said will; that the affidavit of said Bragg so made before said clerk was the sole and only evidence upon which said will was proRepetition in the petition makes it too bated; that said affidavit was made by said lengthy to set it out in full in this opinion; Bragg and said will probated without the but, inasmuch as its sufficiency to withstand knowledge of plaintiff; that said Bragg, a demurrer is the controlling question pre- when said will was presented to him, stated sented by the appeal, we think it important to the clerk that the signature of Walter to indicate its material averments, which O. Bragg was his signature, but that he knew are, in substance, as follows: That on the nothing about the execution of said will; 20th day of April, 1911, Stephen G. Scott that said Bragg did not state to said clerk dies testate in Hancock county, Ind., seised that he saw the testator sign the will, or of an estate of $40,000, and leaving as his that he heard the testator declare the inonly heirs two daughters, plaintiff Emma strument to be his last will, or that he signFort, and defendant Mary Alice White, and ed said will at the request of or in the preshis widow, Nancy M. Scott, also a defendant; ence of the testator, or that the testator was that on the 26th day of April, 1911, the of sound mind and not under restraint, but, plaintiff, the defendants, and the attorney on the contrary, he stated to said clerk that for the defendants met at the home of Nancy he had no recollection of ever signing said M. Scott in Greenfield, said county, and will, or of the circumstances under which there had said attorney open and read the his name was affixed thereto; that when the will of the deceased; that after hearing said printed blank was presented to said Bragg will read and learning the contents thereof by said clerk for his signature he did not plaintiff then notified the defendants that read the same, but believed it contained no she would object to the probate thereof, for statements contrary to those made by him the reason that said will was not the will to such clerk; that upon the hearing of this the deceased, and had been procured by petition the said Walter O. Bragg, said atthe undue influence of the defendants, and testing witness, will testify that he knows was not duly executed; that said attorney absolutely nothing about the execution of and the defendants Nancy M. Scott and Ste- said pretended will, and can remember nothphen G. White, requested plaintiff not to ing about the execution of the same; that file her protest against the probation of said by the deceit and false promises of the will, but that she go home and duly consider defendants, as aforesaid, plaintiff was prethe matter and agreed that they would take vented from taking legal steps to prevent no legal steps to probate said will for sever- the probation of said pretended will beal days, and not until she could have a rea- fore the same was probated. A demurrer For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes for want of facts was sustained to this peti- | same was executed under duress, or was obtion. Appellant refused to plead further and tained by fraud, or any other valid objection elected to stand on the petition; whereupon to its validity or the probate thereof"; nor a judgment was rendered for appellee. is there any averment in the petition that rule is well affirmed that a person seeking to enforce a right conferred by statute must bring himself substantially within its provisions or requirements." Blanchard v. Wilbur, supra; Harrison v. Stanton, 146 Ind. 366, 370, 45 N. E. 582, and authorities there cited. The authorities cited make it clear that appellant has not stated a cause of action authorized by either of the sections of statute, supra. [1] The ruling on said demurrer is assign-it is not "made for vexation or delay.” “The ed and relied on as error. "In this state actions to contest the validity and to resist or set aside the probate of a last will are purely statutory. As this court said in Harris v. Harris, 61 Ind. at page 123, 'they can only be brought, and successfully maintained in the court, within the time and upon the grounds prescribed in and by the statute which authorizes such actions.'' Evansville, etc., Co. v. Winsor, 148 Ind. 682, 685, 686, 48 N. E. 592; Bartlett et al. v. Manor et al., 146 Ind. 621, 45 N. E. 1060; Blanchard v. Wilbur, 153 Ind. 387-392, 55 N. E. 99; Potts et al. v. Felton et al., 70 Ind. 166. [2] Under these authorities the first question to be here determined is whether appellant, in her petition, has brought herself within any statutory provision authorizing her to contest the validity of the will in question, or to resist its probate. The only sections of statute conferring a right of this character are sections 3153 and 3154, Burns 1908, the first of which provides as follows; "If, prior to the admission of any will to probate before the clerk of the circuit court, objection thereto, in writing, verified by his affidavit, alleging that the same is not made for vexation or delay, be filed by any person with such clerk, he shall continue the same until the succeeding term of the court, when, if the person contesting such will fail to resist the probate thereof, the judge of such court may admit such will to probate; but if such objection be made before such court, reasonable time shall be allowed to the party making the same to resist the probate of such will." Section 3154 provides as follows: "Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially in terested therein shall be made defendants thereto." It affirmatively appears from this petition that the Hancock circuit court in term, on the 26th day of April, 1911, had entered an order authorizing and directing the probate of the will in question. The petition herein was not accompanied with any bond. It contains no averments of unsoundness of mind of the testator, or of But appellant insists, in effect, that an order of court granting or denying the probate of a will is a judicial act, and has the effect of a judgment, which may be set aside on the ground that it was procured by deceit and fraud, and that upon this theory appellant's petition states a cause of action. Appellees, on the other hand, insist, in effect, that, inasmuch as the statute provides the manner and method of resisting the probate of a will in the first instance, and also the manner and method of contesting the will and thereby setting aside the probate, after the order of probate has been made, one or the other of these remedies must be followed; that no hardship results to the person seeking to resist the probate by reason of an order of probate, though irregularly made, which may not be cured by proceeding under said section 3154, Burns 1908; and that he should therefore be limited to this remedy. [3] That the probate of a will by the court is a judicial act seems to be a well-settled, legal principle in this and other jurisdictions. Duckworth v. Hibbs, 38 Ind. 78: Steinkuehler v. Wempner, 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 673; Blanchard v. Wilbur, supra, and authorities there cited. Appellees are in error in their contention that one who desires to resist the probate of a will is not harmed by an order of probate of such will unlawfully or fraudulently procured. While said section 3154, Burns 1908, by permitting an order probating a will to be vacated and set aside in the manner therein provided, to a certain extent robs and takes from such order of probate the conclusive, probative force of the ordinary judgment, yet such order or judgment of probate materially alters and changes the situation of the parties. By it the testamentary capacity of the testator is adjudged, and the burden of proving such capacity shifted from the proponents of the will to the contestant thereof; and before such contestant is permitted to bring his action to contest such will, after the probate thereof, he must file his bond, as provided in section 3155, Burns 1908. See the case of Steinkuehler v. Wempner, supra, and cases there collected and cited affecting this question. would seem that in the interest of ending litigation and preventing a multiplicity of law suits such questions should be tendered, tried out, and determined in this action. it clear that the situation of the parties de- | other hand, if there be valid objections to siring to contest a will is materially chang- the probate of the will or to its validity, it ed and affected by an order authorizing the probate thereof, and furnishes a reason for holding that when such order is illegally or fraudulently procured the person or persons injuriously affected thereby should be permitted to have such order set aside, either in an independent action brought for such purpose, or as ancillary to an action brought under one of the sections of statute, supra. * In addition to this reason furnished by the above authority for such a holding, our Supreme Court, in the case of Duckworth v. Hibbs, 38 Ind. 78, supra, expressly hold that such an order, when unlawfully procured, should be set aside; and again, in the case of Burnett v. Milnes, 148 Ind. 230, 46 N. E. 464, "in an action to set aside, on account of alleged fraud * in procuring the same, a judgment • refusing to admit to probate the last will and testament of Jeanette Burnett, deceased, and adjudging the same to be null and void," such court held that, where the facts stated in the complaint showed "a case of fraud upon the court and the rights of the infant defendants" in the procuring of such judgment the same should be declared void. As above indicated, the decisions of the Supreme Court leave no doubt in our mind as to the right of a party injuriously affected by an order of probate unlawfully and fraudulently obtained to have such order set aside on such grounds, so that, in an action to contest the validity of such will and resist its probate, he may have the burden of proof placed where it was before such order was fraudulently procured; but whether an independent action for such purpose, in no way ancillary to an action brought under either of the sections of statute before set out, should be upheld is open to serious doubt. As before stated, this petition nowhere avers the unsoundness of mind of the testator, or the undue execution of the will, or that the same was executed under duress, or was obtained by fraud, or any other valid objection to the validity of such will or the probate thereof. Were we without any authority on this subject, failure to allege any of such averments would cause us to hesitate before holding the complaint sufficient against demurrer. We say this because of the statutory provisions above indicated and the expressions of the Supreme Court indicating that such methods alone should be followed "in an action to contest the validity or to resist or set aside the probate of a will," and for the further reason that courts should not be asked to do a useless or unnecessary thing. If there be no objection to the validity of this will, and it could be again probated, the setting aside of the existing order of probate would avail appellant nothing and be useless and unnecessary. On the This question does not seem to have been directly presented in the latest of the two cases, supra, involving a complaint of this character; but the substance of the complaint, as set out in each of the opinions rendered in said cases, contains no such averments, and there are some expressions in those decisions which indicate that a showing that the order was unlawfully or fraudulently procured is all that is necessary to entitle a person injuriously affected thereby to have it vacated. We may add that we have examined the record in each of these cases, and find that in the case of Duckworth v. Hibbs, supra, the complaint contained none of the averments above mentioned, and the only relief sought or granted was the setting aside of said order of probate. In the latter case, however, the situation of the parties was reversed, and the proponents of the will brought the action; and they not only sought to set aside the former judgment denying the probate, but also asked to have the testator adjudged of sound mind and the will probated.* If [4] The case of Duckworth v. Hibbs has never been overruled, and we think requires us in this case to hold that the absence of the averments indicated does not render the complaint insufficient against demurrer. the averments of the petition here in question be true, and for the purposes of the demurrer they must be so treated, the appellant was induced by the fraud and deceit of appellees to withhold and delay the filing of her objections to the probate of the will until after they had secured the order probating it; and she thereby entirely lost her right to proceed under section 3153, Burns, supra, unless such order of probate may be set aside and she be allowed to proceed as though such order was never made. The averments further show that both appellant and the court were imposed upon by the false affidavit, purporting to be that of an attesting witness, and that this was the only evidence which the court had before it upon which to make its order of probate. In other words, the court, according to the showing made in the petition, was by said false affidavit induced to make the order of probate without proof of any of the facts necessary to be proved to authorize such order. Under such circumstances such order should be declared a nullity, and we therefore hold the complaint sufficient, and that the court below erred in sustaining the demurrer thereto. [5] A ruling sustaining a motion to strike out parts of appellant's petition is assigned and urged as error. This motion failed to, set out the words of that part of the petition | too great or too little moisture, defects in worksought to be stricken out, as required by section 662, Burns 1908. Under such circumstances the petition will be treated as originally filed, the same as though the motion to strike out had never been made, and the ruling on such motion will therefore furnish no ground for reversal. Crystal Ice Co. v. Morris, 160 Ind. 651, 67 N. E. 502; Lehman et al. v. City of Goshen (Sup.) 98 N. E. 710. [6, 7] A ruling on a motion for change of judge is assigned and relied on as error. The record discloses no separate motion for a change of judge and no ruling on such a motion and no exception to such a ruling. For these reasons, no question is presented by the error assigned on the ruling. It should be remarked in this connection that the motion for a change of venue contains the statement that the "Honorable Robert L. Mason, judge of the Hancock circuit court, will be a material witness upon the trial of said cause for plaintiff therein," but a change of venue alone is asked in the motion. This motion was overruled and exceptions to the ruling properly saved, and the ruling on such motion assigned as error. If we are right in our interpretation of this complaint, this proceeding is a civil action, within the meaning of section 422, Burns 1908, providing for a change of venue in such action; and the court erred in overruling the motion for such change. Evans v. Evans, 105 Ind. 204, 210, 5 N. E. 24, 768; Burkett et al. v. Holman, 104 Ind. 6, 9, 3 N. E. 406; Berry v. Berry, 147 Ind. 176, 179, 46 N. E. 470; Lester v. Lester, Ex'r, 70 Ind. 201, 202; Scherer v. Ingerman, Adm'r, 110 Ind. 428, 441, 11 N. E. 8, 12 N. E. 304. For the errors indicated, the judgment is reversed, with instructions to the court below to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion. BARBER ASPHALT PAVING CO. v. CITY manship, extremes of heat or cold and all other effects of climate, holes or cracks in the pavement, and defects resulting from decomposition of the wearing surface or foundation; and that at the expiration of the guaranty period the pavement should be in good condition, present a surface so true and even that it would in no way be an obstruction to travel, and have drainage so perfect that water might collect in no place to a depth of more than a quarter of warranty of the work, and not a provision for an inch. Held that while this was merely a general repairs, it was not merely a warranty against defects resulting from improper workmanship, or unsuitable materials, but was a warranty that the materials and workmanship were of such a character as to withstand any and all of the usual and necessary uses of travel, and obligated the contractor to make all repairs resulting from the causes incident to the use of the street for public travel. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 901; Dec. Dig. 8 368.*] 2. CONTRACTS (§ 332*) — PLEADING - BREACH OF WARRANTY. a cause of action or defense must allege the A party pleading a breach of warranty as character and extent of the warranty and the nature and particulars of the work. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. § 332.*] 3. MUNICIPAL CORPORATIONS (§ 375*)-PUBLIC IMPROVEMENTS CONTRACTS-GUARANTIES OF WORK AND STIPULATIONS FOR REPAIRS. Where a contract for street paving obligatfrom causes incident to the use of the street ed the contractor to make all repairs resulting for public travel, a complaint in an action to recover the cost of repairs made by the city, alleging that the wearing surface of the pavement commenced to roll and wave, that in many places vehicles cut through the wearing surface and concrete into the subgrade, that the pavement deteriorated, that it was almost entirely worn out and was in such condition that it could not be satisfactorily patched, and that to put it in good repair as contemplated and required by the contract, and to make it fit and suitable for travel, it was necessary to entirely above the concrete base, and in some places to reconstruct and relay the wearing surface repair and construct portions of the concrete base, sufficiently alleged a breach of the warranty of the work, even if the burden was on the city to show that the defects were covered by the warranty, and not on the contractor to show that they resulted from causes extraneous to. and independent of, the use of the street for travel. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 375.*] 1. MUNICIPAL CORPORATIONS (§ 368*)-PUB-4. MUNICIPAL CORPORATIONS ($ 375*)-PUB- LIC IMPROVEMENT- - CONTRACTS GUARAN- A contract for street paving provided that the work should be done in such a substantial manner that no repairs would be required for a period of 9 years; that, should repairs become necessary during such period, the contractor would make good any damage to the work or any defect in the workmanship, materials, or condition of the work occurring during such period, and which made such repairs necessary; that the contractor should keep the work in good repair during that time, and make all repairs as directed by the board of public works or city engineer; that the guaranty should cover all repairs growing out of the imperfection or unsuitability of materials or composition, In an action by a city against a contractor for the cost of repairing a street within the guaranty period amounting to $10,000, the city recovered $2,000. There was evidence that the repairs were made necessary by the use of defective material and improper lateral support by the contractor. There was also evidence that they were made necessary by the loss of lateral support due to the delay of a street car company to pave its portion of the street after the excavation therefor. Held, that it was immaterial whether the contractor would be relieved of liability if the condition of the street was due to the conduct of the street car company; there being some evidence that it was |