302. Concealment of cause of action.

The provisions of the statute extending the time for bringing actions when the cause of action is concealed, apply where a guardian in his final report fails to charge himself with money received belonging to the ward. Campbell v. Smith, 49 App. 639, 97 N. E. 954.

The concealment of a cause of action to bar the running of the statute of limitations must be something more than mere silence, and the facts amounting to concealment must be set forth in a pleading. Board of Comrs. v. Hall, 51 App. 475, 99 N. E. 1009.

Under this section an action may be commenced within the period of limitation after discovery of the cause of action. Terry v. Davenport, 185 Ind. 561, 112 N. E. 998.

The concealment of a cause of action which entitles the owner to sue within the period of limitation after discovery of the cause, does not consist of mere silence or general declarations, but must consist of some trick or artifice preventing discovery, or a material fact concealed by positive or affirmative act. Terry v. Davenport, 185 Ind. 561, 112 N. E. 998.

Where the record on appeal fails to disclose the filing of demurrer to the complaint for want of facts all questions as to its sufficiency in that regard are waived; and where proper demurrer had been filed and overruled but not presented by assignment of error such action can not be reviewed. Van Spanje v. Hostettler, - App. —, 119 N. E. 725.

Although the evidence may be strongly contradictory, the determination of the jury as to the question of concealment is binding where there was some evidence from which such an inference might properly be drawn, and the running of the statute of limitations against the right of action may thereby be delayed. Van Spanje v. Hostettler, App. 119 N. E. 725.

303. New promise to be in writing.

Payment of interest after limitations has run removes the bar in view of § 305. Spencer v. McCune, App., 126 N. E. 30.

305. Effect of payment-Exception. See note to sections 303, 307.

307. Judgments, when deemed satisfied.

This section is merely a rule of evidence as to proof of judgment after twenty years and does not limit the life of judgments. Odell v. Green, App. 121 N. E. 304.

This section does not absolutely extinguish a judgment after twenty years in view of §§ 298-302, 305, 372, recognizing the existence of a judgment for certain purposes after twenty years. Odell v. Green, App., 122 N. E. 791.

This section if construed to extinguish a judgment after twenty years would be unconstitutional since the legislature has no power to declare arbitrarily that a judgment has been paid when in truth it has not. Odell v. Green, App. 122 N. E. 791.

308a. Mortgage, real estate, limitation.

The provision of this section and § 308b, relating to limitation of actions, do not show an intent to extend the time within which an action may be brought to foreclose a mortgage given to secure a debt, beyond the time when action can be brought on the debt thus secured, but is merely a statute of repose. Tennant v. Hulet, 65 App. 24, 116 N. E. 748.

Where an action on a note is barred before the passage of this section and § 308b, the passage of such sections did not revive the cause of action. Tennant v. Hulet, 65 App. 24, 116 N. E. 748.

[Acts 1917, p. 38. In force May 31, 1917.]

308b. Mortgage lien, expiration, release.-2. The lien of all mortgages upon real estate in this state shall cease and expire twenty (20) years from the time the last instalment of the debt secured by such mortgage becomes due as shown by the record thereof. If the record of such mortgage does not show when the debt thereby secured becomes due, the lien of such mortgage upon the real estate therein described shall cease and expire twenty (20) years from the date of such mortgage, and thereafter upon request of the owner or owners of record of such real estate the recorder of the county in which such real estate is situated shall certify across the face of such record that such mortgage is fully paid and satisfied by lapse of time and such real estate is released from the lien thereof.

This act amends section 308b, of the Revision of 1914.
See note to section 308a.

SEC.

ARTICLE 7.—ACTIONS, WHERE COMMENCED.

309. Real actions in county where land lies.

311. Corporations, venue of actions.

309.

SEC.

315. Venue, residents, non-residents, assignees.

316. Foreign corporations.

Real actions in county where land lies. See note to section 1438.

Under this section an action for recovery of real property is properly brought in a county in which part of the land is situated. Caldwell v. Shaefer, App. 19

121 N. E. 549.

Where a case is brought in the wrong county failure to take objection by demurrer or answer is waived, under this section and §§ 344, 348. Pittsburgh, C. C. & St. L. Ry. Co. v. Home Ins. Co., - App. 125 N. E. 427.

The provisions of this section do not apply to actions brought by the state against corporations organized under the laws of the state and having a sole office in one county of the state, when such a suit is brought to have a receiver appointed for a corporation and for a dissolution of the company. Great Western Life etc. Co. v. State ex rel., 181 Ind. 28, 102 N. E. 849, 103 N. E. 843.

315. Venue, residents, non-residents, assignees.

Actions may be commenced against several defendants in any county where any one of the defendants resides, but jurisdiction over a non-resident of a county can not be acquired by making a resident of the county against whom no cause of action exists a party defendant. Moore-Mansfield etc. Co. v. Marion etc. Traction Co., 52 App. 548, 101 N. E. 15.

Foreign corporations that appoint agents in this state upon whom process may

be served, can not defeat the jurisdiction of the courts of the state by the discontinuance of business and the revocation of such agencies. Meixell v. American etc. Co., 181 Ind. 153, 103 N. E. 1071.

Actions may be maintained against foreign corporations so long as they have property, money, credits or effects in this state. Brown-Ketcham Iron Works v. Swift, 53 App. 630, 100 N. E. 584, 860.

SEC. 317.

ARTICLE 8.—ACTIONS, HOW COMMENCED.

Commencement of actions, com-
plaint, summons.

insane.

318. Service-Guardian ad litem for

SEC..

319.

Service on corporations.

320a. Non-resident receivers, service. 324. Proceedings, when part only are served.

317. Commencement of actions, complaint, summons.

Civil actions can be commenced only by the filing of a complaint and the issuing of a summons thereon, and the issuing of a summons can not be waived by the defendant. Friebe v. Elder, 181 Ind. 597, 105 N. E. 151; American Steel etc. Co. v. Carbone, 60 App. 484, 109 N. E. 220, 1095.

If a complaint is filed and the defendant enters an appearance without the issuing of a summons, and the appearance is afterward withdrawn, there will not be an action pending until a summons is issued on the complaint. American Steel etc. Co. v. Carbone, 60 App. 484, 109 N. E. 220, 1095.

This section providing for procedure in civil actions is only supplementary in assessment proceedings which must follow law authorizing them. Temperly v. City of Indianapolis, Ind., 127 N. E. 149.

General jurisdiction is conferred by the constitution or statutes but jurisdiction in a particular sense is conferred by instituting an action in a lawful and proper manner. Pease v. State, App. 129 N. E. 337.

318. Service-Guardian ad litem for insane.

In a proceeding to have person confined in a hospital for the insane adjudged of unsound mind, and to have a guardian appointed to manage his estate, the summons may be served upon the superintendent of the hospital. Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507.

The signing of a paper by a defendant waiving the issuing of a summons and entering an appearance to the action, does not amount to an appearance when no summons is issued. Friebe v. Elder, 181 Ind. 597, 105 N. E. 151.

See note to section 2829.

319. Service on corporations.

When a summons issued against a corporation is served upon some person other than the "chief officer" of the corporation, the return of service must show that such chief officer could not be found in the county. Jester v. Barret, 181 Ind. 374, 102 N. E. 29.

[Acts 1915, p. 205. Law without signature of governor.]

320a. Non-resident receivers, service.-1. That in any civil action now pending or which may hereafter be brought in any court of this state, against any firm, co-partnership, association, railroad or other corporation, and the same is in the hands of a receiver who is not

domiciled within the State of Indiana, service of process may be had and served upon any agent of such receiver or other person in charge of, and authorized to transact business for and on behalf of such receiver, in this state, in the same manner as process is now served on domestic or foreign corporations.

Section 2 declares an emergency.

324. Proceedings, when part only are served.

Under this section, where an action is brought against two defendants, principal and surety, the surety being served, but the principal not served, a judgment entered on sustaining the surety's demurrer to the complaint and refusal of plaintiff to plead further, is final and appealable. Lake Michigan Water Co. v. United States Fidelity & Guaranty Co., 65 App. 141, 116 N. E. 744.

The statute which provides that a plaintiff may dismiss his action at any time before the jury retires, or the finding of the court is announced, applies to suits in equity as well as in actions at law. Moore-Mansfield etc. Co. v. Marion etc. Traction Co., 52 App. 548, 101 N. E. 15.

When a court indicates that it will instruct a jury to return a verdict for the defendant, the plaintiff has the right to dismiss the action before the instruction is given. Van Sant v. Wentworth, 60 App. 591, 108 N. E. 975.

The statute providing when actions may be dismissed by plaintiffs, does not apply to proceedings by a city to open a street, and a city may dismiss such proceedings and abandon the project after the return of a verdict assessing damages. Isley v. City of Attica, 59 App. 694, 109 N. E. 918.

Under this section, where one has intervened in an action and has been substituted in the place of the original defendant, and has filed answer, a motion to withdraw his intervention and his pleading, and to take a nonsuit without prejudice, which motion was filed after the case had been taken under advisement, was properly denied under the discretionary power of the court. Richards v. Bingham, — App. —, 118 N. E. 372.

Under this section it was held that remarks made by the trial court at the close of the trial, on taking the case under advisement, indicating what judgment would be rendered, does not amount to a judgment, so as to preclude a motion to dismiss without prejudice. Richards v. Bingham, App., 118 N. E. 372.

339. Dismissal in vacation-Costs.

The filing of a writing with the clerk of the court in vacation dismissing an action has no effect until the court in term renders a judgment of dismissal. Fender v. Phillips, 59 App. 85, 108 N. E. 971.

343. Complaint, contents, paragraphs numbered.

The complaint under the code should state the facts constituting the cause of action directly, concisely and in plain language, so as to meet the comprehension of persons of common understanding; and more liberal rules are applied in the .construction of pleadings than those observed by the common law. Domestic Block Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99; Indianapolis Tel. Co. v. Sproul, 49 App. 613, 93 N. E. 463; Cincinnati etc. R. Co. v. Baltimore etc. R. Co., 50 App. 283, 98 N. E. 304; Chicago etc. R. Co. v. Hamerick, 50 App. 425, 96 N. E. 649.

If the allegations of fact in a complaint are regarded as too general, a motion should be made to have the same made more specific. Terre Haute etc. Tract. Co. v. Maberry, 52 App. 114, 100 N. E. 401; Vandalia Coal Co. v. Coakley, 184 Ind. 661, 111 N. E. 426.

The provisions of the statute providing what facts a complaint shall contain are sufficiently liberal to allow the plaintiff in a suit for damages charging assault and battery to recover for the assault alone, where the battery is charged with such certainty as to indicate and identify the assault included in it. McLone v. Hauger, 56 App. 243, 104 N. E. 116.

See note to section 3154.

Where the names of the parties are stated in the caption of a complaint, they need not be repeated in the body thereof. Voyles v. Hinds, 186 Ind. 38, 114 N. E. 865.

The word "sold", as used in this section, signified a contract of sale for a valuable consideration. Alburn v. Burge, 186 Ind. 559, 117 N. E. 257.