Page images
PDF
EPUB

294

abandonment of the right of the Columbus and Shelby Railroad Company to maintain a track through the streets of Columbus. City of Columbus et al. v. The Columbus & Shelby R. R. Co....... 6. Injury to Animals.-Fencing Instruction. An instruction that when the owner of cattle turns them out, at a place where they must pass along a railway track, when trains are passing, he cannot recover for their injury, is erroneous as applied to a case where the road should be securely fenced and is not so fenced. The J., M., & I. R. R. Co. v. Ross. 545

REAL ESTATE, RECOVERY OF. See HUSBAND AND WIFE, 10. 1. Pleading.-A complaint is sufficient in an action for the recovery of real estate, if it contain the substance required by the statute. Knight et al. v. McDonald et al............463

2.

Same.-Defective Description. Where the complaint in an action to recover the possession of real estate described the land as "six - of lot number five," etc., and the finding was "six acres of lot number five,' etc.;

Held, that the finding did not cure the defect in the description of the premises in the complaint. Unversaw v. Myers................. .487

[blocks in formation]

REDEMPTION.

See SCHOOLS, I.

REPLEVIN.

Title to Property.-Suit on Bond.Where property has been replevied from under a levy by virtue of an execution, and on the trial there has been a finding for the defendant on the issue of title to the property, and a judgment of return has been rendered, the plaintiff cannot afterward defend a suit on the bond, for a failure to deliver the property, by asserting a new title to the property, acquired after the bond in replevin was given and before judgment for a return. Carr v. Ellis et al.....465

RES ADJUDICATA.

1. Pleading.-A plea of former adjudication, showing that the questions, things, rights, and matters in suit have been adjudged and tried before and by a tribunal of competent jurisdiction, is good on demurrer. The State, ex rel. Combs, v. Hudson...198

2.

Same. In a suit upon a recognizance taken before a justice of the 1. peace on a charge for the commission of a felony, the record must show that the forfeited recognizance, with the justice's certificate indorsed thereon, was filed with the clerk of the circuit court................

RECORD.

.Ibid.

See PRACTICE, 12, 17; RECOGNIZANCE,

2.

Same.—Jurisdiction of the Person. Where the record upon which a plea of former adjudication is based, showing judgment against the defendant by default, only shows service of process on him by recitals in the record, without containing a copy of the notice and return of service, it may be shown that no jurisdiction of the person of the defendant was acquired by proper service....... Ibid.

S

SCHOOLS.

See COUNTY AUDITOR, 2.

School Fund.-Mortgage-Title. Redemption.-A purchaser under a sale by virtue of a mortgage to the school fund takes an absolute title, and there is no right of redemption by junior incumbrancers. Schnant: v. Schellhaus, Adm'x...............$5 2. School Property.-Part of School Township and School Property Annexed to City-Title to Property.Where real estate is purchased and buildings erected for school purposes,

by the trustees of a school township,] with the proceeds of a special school tax, and subsequently the territory embracing such property is annexed to a city, leaving more than half the school township outside the city limits, the title to the school lots and buildings still remains in the trustees of the school township, and the property may be sold by them. Heizer v. Yohn et al................415

SET-OFF.

See CONTRACT, 5; EVIDENCE, 10.

SHERIFF.

See ESCAPE, I, 2; FEES AND SALARIES, 2.

I.

2.

SINKING FUND.

Constitution.- Construction.-The word "invest," as used in section 4 of article 8 of the constitution, in order to harmonize with section 6 of the same article, must be construed as broad enough to cover loans made by the counties, and that the fund may be intrusted to them for that purpose; and yet, while covering the loan of money, it does not restrict to that mode of investment. Shoemaker, Aud., et al. v. Smith et

al.

......122

Statute.- Constitutionality.- The amendatory act of February 24th, 1871, in regard to the sinking fund, is not in conflict with section 4 of article 8 of the constitution....... Ibid. 3. Recital.-Certainty.-The act of 1871 is sufficiently certain in its recital of the act amended; and the date of the approval of that act is not necessary to be stated in the act amending it; and the court will take judicial notice that there is no other act with the title which is recited. Ibid.

[blocks in formation]

6.

the terms, "board of commissioners of the sinking fund," and "board of sinking fund commissioners," in the act, does not vitiate the statute, as it is plain what party was intended.... ......Ibid.

Sixth Section.-Fourth Section.The original sixth section of the act amended, and the entire amendment of 1871, are valid, with the excep tion of the fourth section of the amendment, on which no conclusion was reached, as it was not involved in the decision....... .........Ibid.

SLANDER.

[ocr errors]

1. Charge of Forgery-Attempt to Obtain Money by False Pretences.The plaintiff, having executed a note to the defendant, November 30th, 1864, and paid one year's interest, after a year had passed executed a mortgage to secure the payment of the note, and some four years later, on discharging the note and mortgage, which were surrendered to the plaintiff, the interest from the date of the note was, by mistake, included, and no credit given for the one year's interest paid. The plaintiff called the attention of the defendant to the mistake afterward, and pointed out the words in the mortgage referring to the note, Interest paid to Nov. 30th, 1865." The plaintiff filed a complaint, which, after reciting these facts, and averring that the purpose of defendant was to cause it to be believed, and that the hearers so understood, that the plaintiff had been and was guilty of forgery, and of making use of false pretence, to obtain money, charged, with proper innuendo, that defendant had uttered and published of him the following false and slanderous words: "You forged it; inserted it; put it in. You wrote that clause in it. I would swear that that line in the mortgage was not in the mortgage when I gave it to you yesterday, and you put it in. You altered the mortgage, changed the mortgage, put that line in the mortgage, inserted that line, put the credit in, and you are a forger and committed forgery;" and also: "He committed forgery; is a forger; is guilty of forgery. There is something here that I don't understand;

this line has been put here; or at
least if I was called on to swear, I
would swear that I read the whole
of the mortgage over very carefully,
and I did not read that. I let Hotch-
kiss (the plaintiff) have the mort-
gage once, and I never noticed that
until after he brought it back. It is
his handwriting. I told him so. I
suppose he says he is going to sue
me for it, but it is my belief. He
can't hurt a person for his belief.
Hotchkiss is so slippery, I have had
to watch him. He cheated me out
of some money, which he positively
agreed to pay, and I am not going to
let him cheat me any more. I am
positive this was not here when I
gave him the mortgage. He put it
there; it is his handwriting; I told
him so; he can't hurt me for that.
He can't hurt a man for his opinion,
unless he says he can prove it.
have never said I could prove it.
He must have put that line in the
mortgage. I am certain it was not
there when I gave him the mort-
gage."

I

Held, that the entry charged, on the
mortgage, had the force and effect of
a receipt for so much money, and,
although surrendered, was a valid
instrument as such receipt, and capa-
ble of being forged, and the para-
graph showed a charge by defendant
against plaintiff of forgery. It did
not state a charge of obtaining money
by false pretences.
The attempt!
charged was not a crime. Hotchkiss
v. Olmstead......
.74

2.

Same. A second paragraph charg-
ed a conversation in respect to the
same transaction, but it alleged the
alteration was made before execution
and delivery of the mortgage, and,
therefore, no forgery could have been
then committed..........

Ibid.

SPECIFIC PERFORMANCES.

Pleading.-Performance by Plaintiff.
Suit by the widow and heirs of A.
to enforce specific performance of a
contract between A. and the defend-
ant, for the conveyance by the latter
to the former of certain real estate,
on condition that A. should pay cer-
tain sums to the defendant at certain
dates thereafter, and upon the further
condition that A. should, at said]

dates, pay defendant any money that
might then be due to the defendant
from A., and which might be ad-
vanced to A., or on his account, by
the defendant, after the making of
the contract. The complaint alleged
the making of said contract and set
it out, and alleged the death of A.,
and that the plaintiffs were his widow
and children, distinguishing which
was the widow and which were the
children, and alleged full payment
and full compliance by A., and that
plaintiffs had demanded a deed,
which defendant refused to execute.
Held, that the complaint was good on
demurrer. Hauser v. Roth et al...89

STARE DECISIS.

Rule of Construction.-A long line of
uniform decisions construing a stat-
ute, in the face of the fact that the
legislature for a long series of years
has acquiesced in such construction,
cannot, with judicial propriety, be
disregarded or lightly treated. Lotb
et al. v. Mathis......
..306

I.

STATUTE OF FRAUDS.

Parol Promise to Answer for Di't
of Another.-G. held a note against
S., and J. held a note and mortgage
against G., and it was agreed between
J. and II. that J. was to surrender to
G. the note and mortgage and re-
lease him from that indebtedness,
and take from him an assignment of
the note which he held against S.,
and H. agreed by parol to pay to J.
the latter note. J. accordingly did
release the note and mortgage against
G., and took an assignment from G.
of the note against S.

Held, that the contract was within the
statute of frauds, which requires a
special promise to answer for the
debt of another to be in writing, in
order that an action may be main-
tained thereon. Crosby et al. v.
Feroloman
•••••.... 264
Agreement to Convey Land.—A
suit cannot be maintained by a hus-
band on a verbal contract by which
land was to be conveyed as a com-
pensation for services rendered by
his wife, for the value of the land,
on failure to convey. Baxter v.
Kitch, Adm'r.

2.

[blocks in formation]

I.

2.

3.

-

7.

plied in the Supreme Court by affida-
vit. Lytle v. Lytle et al....281
Weight of Evidence.-That the
finding is against the weight of evi-
dence, is no ground for reversing a
judgment. Waggoner et al. v. Lis-
ton...
-357
8. Reversal on Evidence.-Rule Upon
Motion for New Trial.-A judg-
ment will not be reversed upon the
mere weight of evidence, by the Sa-
preme Court, unless upon a material
point upon which the evidence is all
documentary. Where there is evi-
dence, which, if it were uncontra-
dicted, would be sufficient to support
the finding, the judgment will not
be reversed on the evidence. This
rule must not be applied in the court
trying the cause. The Madison and
Ind polis R. R. Co. v. Taffe......361

Practice. Appeal. — Evidence.-
To justify the Supreme Court in re-
versing a judgment, error must af-
firmatively appear by the record.
If evidence excluded might have
been objectionable as irrelevant un-
der the issues, or under the evidence,
it will be presumed to have been
properly excluded, where none of
the evidence is in the record. Hun-I.
ter v. Thomas.....
.145

Bill of Exceptions.-Where there
is no bill of exceptions in the record,
and the reasons for a new trial are
that the finding is contrary to law,
and that the finding is contrary to
the evidence, such reasons cannot be
examined by this court on appeal.
Rettig v. Pefferman et al...........240

Assignment of Error.-The as-
signment of the reasons for a new
trial as error presents no question in
the Supreme Court. The overruling
of the motion for a new trial should
be assigned, simply. Ferrenburg et
al. v. The Studabaker Turnpike Co.
.251
4. Same.-No question is presented
in the Supreme Court by the assign-
ment as error of a reason for a new
trial in the court below. Conner v.
Wall..........
...252

et al........

5. Notice to Co-Parties.-Where all
co-parties do not join in an appeal
to the Supreme Court, notice must
be served on those not joining, and
proof thereof must be made, or the
court will dismiss the appeal. Knarr
v. Conway et al................... .257
6. Amendment of Record. A record
cannot be amended or defects sup-

2.

3.

T

TAX.

See COUNTY AUDITOR.

Lien. Levy of Execution.-
When the treasurer of a county ac-
quires a lien for taxes on personal
property, by the duplicate coming
into his hands, his lien is superior to
an execution subsequently levied.
McNiel et al. v. Farneman, Treas-
....203
National

urer.

[ocr errors]

Municipal Purposes.·
Banks.-A tax on the capital stock
of a national bank, for school pur-
poses, or for a donation by a town-
ship to aid in building a railroad, is
not a tax levied for municipal pur-
poses, within the meaning of the
ninth section of the act of March
15th, 1867, 3 Ind. Stat. 34. Root v.
Erdelmeyer, Treasurer, et al......225

County Treasurer. - Delinquent
Taxes. The treasurer of a county
is not authorized to levy upon per-
sonal property for the non-payment
of taxes, before the third Monday in
March, unless he have such evidence
that the debtor is about to leave the
county, without payment of his
taxes, as would satisfy a jury that he
had cause to fear such a course. Any
levy by the treasurer before such
date, and without sufficient cause,
renders him liable for conversion.
Veit et al. v. Graff 253

TOWN.

Trustees of Towns.- Election.—In-
spector.-Injunction.—Where the in-
spector of an election for town trus-
tees did not, within ten days after
said election, or at any other time
after said election, over his own sig.
nature, certify and file in the clerk's
office of the circuit court of the
county where the election was held,
a certificate certifying the several
persons elected at said election, to
fill the several offices of said town;
Held, that an ordinance passed by the
persons so elected gave no authority
for an improvement in the town at
the expense of the property holders,
and that an injunction should be
granted on their application. Din-
widdie et al. v. The President, etc.,
of Rushville et al............ .....66

[blocks in formation]

of a certain turnpike road, for bene-
fits conferred by the construction of
the same, alleged that there were
more than twenty thousand acres of
land thus liable, and that only thir-
teen thousand acres had been re-
turned on the list by the assessors.
Held, that the complaint was good on
demurrer for want of sufficient facts.
Forgey et al. v. The Northern
Gravel Road Co. et al............... 118

U

UNSOUND MIND.

See DRUNKENNESS, 1, 2; PRACTICE, 8;
WILL, I.

V

VENDOR AND PURCHASER.

See CONVEYANCE, 1, 2; MISTAKE;
SCHOOLS, I; TRUST, 2.

1. Covenant.-Evidence.-In an ac-
tion for breach of a covenant of
seizin, where the complaint alleged
that the title to the land described in
the deed was in the United States;
Held, that the deposition of a register
of the land office of the district in
which the land lay was competent
evidence to prove the title. Lacey
et al. v. Marnan.......... .....168

[blocks in formation]

on land within one and one-half miles Assignment of Account.- In a mere

« PreviousContinue »