
    Union Traction Company of Indiana v. Bell et al.
    [No. 20,531.
    Filed February 17, 1905.]
    From Hamilton Circuit Court; J. F. Neal, Judge.
    Action by the Indianapolis Northern Traction Company against Millard F. Bell and wife. From a judgment for defendants, the Union Traction Company, successor to plaintiff by consolidation, appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.
    
      Reversed.
    
    
      J. A. Van Osdol, W. S. Christian and A. W. Brady, for appellant.
    
      S. D. Stuart and C. G. Reagan, for appellees.
   Montgomery, J.

The questions presented for decision in this case are in all respects the same as those decided by this court in Union Traction Co. v. Basey (1905), ante, 249, and, upon the authority of that case, we hold that appellant, as the successor of the Indianapolis Northern Traction Company, by consolidation, as averred in the assignment of errors, is the proper party to prosecute this appeal; and that in a proceeding to appropriate lands for a right of way by a street railroad company, when such company appeals from an award within the ten days allowed, and pays the amount of the award to the clerk of the court, for the purpose of entering at once upon the property described in the instrument of appropriation, such payment is not voluntary in a legal sense, and will not estop the company from prosecuting its appeal.

The circuit court erred in overruling the demurrer to the appellees’ answer, and in dismissing the appeal. The judgment is reversed, with instructions to sustain the demurrer to the appellees’ answer, and for further proceedings in harmony with this opinion.  