In notice of mechanic's lien. See ME-
CHANIC'S LIEN, 1.
See DESCENT, 6; HUSBAND AND WIFE
17; JURISDICTION, 12, 13.
such defendant in the wrong. He
may save himself from costs by dis-
claiming any interest.............Ibid.
See CRIMINAL LAW, 14, 15, 16, 28, 31,
36, 41, 43 to 47.
Initial Letters.-Where a judgment is
rendered before a justice of the
peace against a defendant by a name
in which an initial letter is used
instead of his Christian name, the
proceedings and judgment are there-
by rendered irregular, but not void.
Bridges v. Layman et al............384
Code.-Law and Equity.-Subroga-
tion.-Improvements.-Where mort-
gaged real estate has been sold and
conveyed by the mortgagor to the
mortgagee or his assignee, there be-
ing a junior judgment-lien thereon,
and the vendee of such purchaser,
without actual notice of such judg-
ment-lien, has expended money in
valuable permanent improvements,
without which the value of the
property would not exceed the mort-
gage; though the judgment-plaint-
iff has a complete legal remedy
to enforce his lien, by execution,
yet, upon the application of such
vendee, the execution-plaintiff will
be required to exercise his legal
right subject to the equitable right
of the vendee, for whom the mort-
gage will be kept on foot, and to 1.
whom the value of the improve-
ments will be allowed-the court,
in taking account, charging the ven-
dee with the value of the rents of
the property, as it would have been
without such improvements, for the
time it has been held by him. Troost
v. Davis, Sheriff, et al................34
2. Jurisdiction.-Title to Real Estate.
'Where the main object of a com-
plaint in the court of common pleas
is to have satisfaction entered of a
mortgage of real estate, there is no
error in overruling a motion made
by the defendant, before answer, to
transfer the cause to the circuit court,
on the ground that the title to real
estate is in issue. Paine et al. v.
The Lake Erie & Louisville R. R.
Co.......
3. Pleading.-Answer.-Costs.-In a
suit to enforce the entering of satis-
faction of a mortgage, a party de-.
fendant against whom no relief is
sought, but who is made a defendant
merely to answer as to his pretended
interest in the subject-matter of the
suit, must file an affirmative answer
if relief is sought by him. The gen-
eral denial by such a party puts the
plaintiff to such proof as will place
See RAILROAD, 5, 6, 9, 10, 11.
Railroad.- Pleading.-Where the
owner of a quantity of cord-wood
deposits the same at a certain place
near a railroad track, in accordance
with the direction of an agent of the
railroad company and under an
agreement with such agent by which
it is to become the property of the
railroad company when measured
and paid for by the company, but
until so measured and paid for to
remain the property of such owner,
and while so remaining his property
it is consumed by fire originating
from a locomotive engine in the use
of the company and caused by the
negligence of the employees of the
company, and these facts are averred
in the complaint in a suit by such
owner against the company to re-
cover the value of the wood; it is
not necessary to allege also the de-
struction of the wood without the
fault or negligence of the plaintiff.
The Indianapolis & Cin. R. R. Co.v.
2. Same.-Burden of Proof.-It is
the duty of a railroad company to
use machinery properly constructed
with a view to prevent fire from be-
ing communicated to property law-
fully placed by the owner thereof
near the railroad track, and the en-
gines should be operated with care
and skill to the same end. If fire
is communicated to such property
from an engine by reason of a failure
to use proper preventives, or by the
carelessness of employees, the com-
pany is liable for the consequences;
but negligence in either respect
should not be inferred without proof,
the burden of which rests on the
party alleging it......... .... Ibid.
3. Same.- Watchman.-The railroad
and control of said owner, who
should examine for himself all the
means used in loading and unload-
ing, to see that they were of suffi-
cient strength, of the right kind,
and in good repair and order; that
each person riding free to take care
and charge of said stock should do
so at his own risk of personal in-
jury from whatever cause; and that
the owner should release and hold
harmless, and keep indemnified, the
railroad company, from all damages,
actions, claims, and suits, on account
of any and every injury, loss, and
damage heretofore referred to, if
any should occur or happen. Suit
against the railroad company to re-
cover for certain animals shipped by
the plaintiff, under this contract,
and lost, while in course of trans-
portation, by escaping through a
window open in the end of the car
in which they had been loaded by
the plaintiff's agent, who accom-
panied them on the route, and who,
after the escape of one of the ani-
mals, told the conductor to fix said
window, and the conductor not do--
ing so, fixed it himself.
liable for the loss.........
company is not bound to provide a
watchman to protect property so
placed by the owner, at his own
instance, without any contract with
the company, in danger of taking
fire by unavoidable accident from
the engines used by the compa-
ny.....
.......... Ibid.
4. Common Carrier.-Special Contract.
A common carrier cannot contract
against liability for loss from his
own ordinary negligence. Such a
condition is void as against public
policy. The Ind'polis, Pittsburg, &
Cleveland R. R. Co. v. Allen......394
5. Same.-A contract for the ship-
ment of live stock by a railroad
company provided, that, in consid-Held, that the railroad company was
cration of a certain reduced rate of
transportation, the owner of said
stock should assume all risks of in-
juries which the animals or either
of them might receive in consc-
quence of any of them being wild,
unruly, vicious, weak, escaping,
maiming and killing themselves or
cach other, or from delays, or in
consequence of heat, suffocation,
or the ill effects of being crowded
upon the cars of said company, or
on account of being injured by the
burning of hay, straw, or any other
material used by the owner in feed-
ing the stock, or otherwise, and any
damage occasioned thereby, and
also all risk of any loss or dam-
age which might be sustained by
reason of any delay, or from any
other cause or thing in or incident
to, or from, or in, the loading or un-
loading of said stock; that said own-
er should load and unload said stock
at his own risk, the railroad com-
pany furnishing the necessary la- 7.
borers to assist, under the direction
Ibid.
Railroad.—Injury to Passenger.- -
A railroad train ran beyond the
platform for landing passengers at a
certain station, and stopped over a
culvert, and the proper servants of
the railroad company announced the
name of the station, as a notification
to the passengers for that station
that the train was there; whereupon
a passenger for that station, who had
paid the company the fare demanded
of him, relying on the good faith of
the company, alighted upon and into
said culvert, without his fault or
negligence, supposing he was alight--
ing upon said platform, it being at
night and so dark that he could not
see that the train had not stopped at
said platform; whereby he was.
greatly injured.
Held, that the company was liable for
the injury so received. The Colum-
bus and Indianapolis Central Railway ·
Co. v. Farrell........................408.
Same.-A railroad company is not
legally responsible for the action of
persons not its servants in falsely
announcing the arrival of a train at
a station, whereby a passenger in
attempting to alight from the train
is injured................................
......... Ibid.
Sec PRACTICE, 16, 17, 18.
1. As of Right.-The form of the
issues in an action to quiet title to
real property cannot abridge the
right of the losing party to have a
new trial on the payment of costs
as provided by section 601 of the
code. Moor v. Seaton...............11
2. Same. In a suit to quiet title to
real property, there was a finding
for the defendant upon a cross com-
plaint.
Held, that the plaintiff was entitled to
a new trial on the payment of
Weight of Evidence.-Where there
is a conflict in the testimony, this
court will not reverse a judgment
on the weight of the evidence. Me-
Caw et al. v. Burk et al..............56
4. Supreme Court.-Prepondrance of
Evidence.-Where the Supreme Court
finds evidence to support the find-
ing, it will not go beyond this to
determine the preponderance of the
evidence. Kinney v. Blythe......140
5. Assignment of Errors.-Where, in
an assignment of errors, the only
crrors complained of relate to mat-
ters occurring on the trial for which
a new trial was prayed, but the ac-
tion of the court in overruling the
motion is not assigned for error, no
question is properly raised in this
court. Lingerman et al. v. Nave.222
6. Excessive Damages.-The assign-
ment of excessive damages as a
cause in a motion for a new trial is
the only method by which that ques-
tion can be raised. City of Indian-
apolis v. Parker, Sheriff.. ...230
7. As of Right.-There is no error in
overruling a motion for a new trial
as of right in an action of ejectment,
where no proof is presented to the
court that the costs have been paid.
McSheely v. Bentley...................235
Motion for New Trial.-Filing of
Affidavits.-Motion for new trial on
the ground of misconduct of the
jury. Affidavits in support, though
ready, the party making the motion
refused to put on file or submit to
the inspection of the opposing coun-
sel before the motion was taken up
for argument, though he was previ-
ously notified in open court that
objection would be made to the
reading of them unless they were
so filed. The court refused, there-
fore, to allow them to be read.
Held, that in this there was no error.
Hubble v. Osborn........
Same.-Finding Beyond the Issue.—
Motion for Judgment on Finding.-
On the trial, in the circuit court, of
an action commenced before a jus-
tice of the peace, to recover upon a
stock subscription, the execution of
the instrument not being denied by
the defendant under oath, the court
found specially for the plaintiff every
point in isssue, so that judgment
could have been rendered for the
instalment sued for, but found fur-
ther, that after the defendant had
executed the instrument it had been
altered in a material part, without
his knowledge or authority, and,
over a motion by the plaintiff for a
new trial, rendered judgment, with-
out further objection, for the defend-
ant.
Held, that the motion for a new trial
did not raise any question; but a
motion for judgment on the finding
should have been made, in order to
present the question involved to the
circuit court.
Held, also, that the question could not
be made for the first time in the
Supreme Court. The Fishback and
Elizabethtown Gravel Road Co. v.
Wilson......
........371
County Clerk.-Fees where Nolle Pros-
equi is Entered.-A county is not lia-
ble to its clerk for fees taxed by him
for services rendered in a criminal
prosecution disposed of by a nolle
prosequi being entered. Board of
Com'rs of Morgan Co. v. Johnson.463
See JUSTIFICATION, 1, 2, 3.
Of mechanic's lien, reformation of. See 1. County Clerk.-Deputy-Compen MECHANIC'S LIEN, 1.
2. Same. In a complaint to enjoin the obstructing of a public highway, the only averments connecting the plaintiffs with the highway were, "that it is their usual, convenient, and necessary route of travel from their houses, which are all on, or in the vicinity of, the road, to their market town and usual place of business; and that without greater or less circuity, when the road is so obstructed, they and cach of them have no other means, nor have the public wishing to use the road, of going to and fro, as they have a right to do, for business, comfort, and pleasure."
Held, that the complaint was bad on demurrer
See HIGHWAY, 1, 2; CRIMINAL LAW, 3; NUISANCE, 1, 2.
OBTAINING GOODS BY FALSE PRETENSE.
See CRIMINAL Law, 11, 48 to 54.
OBTAINING SIGNATURE BY FALSE PRETENSE.
See CRIMINAL LAW, 48 to 54.
sation of-A county clerk may contract with his deputy that the latter for his compensation shall have a certain share of the fees taxed and collectable in the clerk's office during his deputyship. Check et al. v. Tilley
121 2. Injunction.-Receiver.-In a suit by such deputy against his principal to recover the former's share of such fees, an injunction may be granted, pending the cause, restraining the clerk from collecting or transferring such fees yet unpaid, and the sheriff' from paying such fees collected by him to the clerk; and a receiver may be appointed..... .Ibid. Vacancy.-County Auditor.-Statute Construed.-Where a vacancy in the office of county auditor is filled by appointment, and a successor is elected at the next general election, such successor is entitled, by section 4 of the act of May 13th, 1852 (1 G. & H. 671), to take the office as soon after his election as he shall have qualified. Douglass v. The State, ex rel. Wright......
Usurpation.- Damages.— Measure of. If such appointee refuses to surrender the office upon the demand of such qualified successor, the latter is entiled to recover from the former the gross emoluments of the office received by him while so unlawfully withholding the office. Ibid.
Same. At the October election, 1863, A. was elected auditor of a certain county, was commissioned, and, having duly qualified, went into said office November 1st, 1863. He resigned in December, 1866, and B. was appointed by the board of county commissioners to fill the vacancy. At the October election, 1867, C. was elected to fill the office, and was subsequently commissined for four years from the 1st of November, 1867; and, having duly qualified, on the 11th of November, 1867, he demanded of B. possession of the office, its records, &c., which B. refused to surrender, claiming the right to hold till the first Monday of March, 1868. Information under the statute,
See CoNSIDERATION, 1; CONTRACT, 87
CORPORATION, 1.
on the relation of C. against B.,
pending which, on the first Monday
of March, 1868, B. surrendered to C.
Held, that C. was entitled to the office
when he so demanded possession of
it, and to receive its fees and emol-1.
uments from that date.
Held, also, that B. was not entitled to
retain from the gross emoluments
of the office for the time he so un-
lawfully held it against C. the
amount paid out for necessary clerk 2.
hire for discharging the duties of the
office for that period.
Held, also, that section 1 of the act of
May 31st, 1852 (1 G. & H. 122), so
far as it fixed the commencement of
the county auditor's term of office
on the first Monday of March next
ensuing his election, was intended
to apply to a regular succession of
terms by election, and was repealed, |
by implication, by the act of March
3d, 1855 (Acts 1855, p. 52), provid-
ing, that the term of office of the
auditor and certain other officers
"shall commence on the first Mon-
day of the month of November,
immediately following the general
October elections, and that any of
the above named officers to be elect-
ed hereafter shall hold their offices
until the first Monday of November
aforesaid, according to their respect-
ive terms."
Held, also, that, in such a case as this, said act of March 3d, 1855, is not in conflict with section 2 of article 6 of the State Constitution. Howard v. The State, 10 Ind. 99, explained. Ibid.
See ESTOPPEL, 2 to 5; PRINCIPAL AND
AGENT, 1.
See INSANITY, 4; NEGLIGENCE, 2; TRUST, 8; VOLUNTARY CONVEYANCE, 2.
See CASES OVERRULED, AFFIRMED, &C.
See VOLUNTARY CONVEYANCE, 2, 3.
Promissory Note.-Party Plaintiff. It is not necessary that the plaintiff in a suit upon a promissory note should be the legal owner thereof;it is sufficient if he be the equitable owner. Compton v. Davidson et al.62 Decedents' Estates.-The heirs at law of a decedent against whose estate it appears there exists any debts cannot maintain an action for mon
ey due the estate. Walpole's Adm. v. Bishop et al.......... ........156
Same.Suit by the heirs at law of A. against the administrator of B., to recover money collected by B. in his lifetime, as attorney of A. The complaint alleged, that, in the same year that A. died, an administrator of his estate was appointed, who six years afterwards resigned his trust; that no assets ever came to his hands; that no claims against A.'s estate were ever filed in court; that no other administrator of A.'s estate was ev er appointed; that the widow of A. paid all the claims that were presented or that she knew existed against his estate, and fully administered the same years before. Held, that these plaintiffs could not maintain the action............... Ibid. Plaintiff.—Agent.—One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue on such contract in his own name. (Code, secs. 3, 4.) Rawlings v. Fuller... 5. Practice.-Admission of New Party.-Complaint on a note and mortgage, the plaintiffs claiming to be the surviving partners of a late firm named. Before any further pleadings had been filed, another person filed a petition, alleging, that he was a member of said late firm to which the note in suit was payable, and as such had an interest; and praying to be made a party plaintiff; and the court so ordered. Held, the facts alleged in the petition being undisputed, that there was no
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