but the proper result having been attained by demurrer, there was no available error. Picken et al. v. 2. Whisler......... 402 26. Answer.- Jurisdiction.- Code.- Under our code, a defendant may set forth in his answer as many grounds of defense, counter-claim, and set- off, whether legal or equitable, as he may have, without regard to the location of the subject-matter. Vail et al. v. Jones et al.........467 27. Same. Mortgage.-Suit on a note, in the circuit court of a certain
county. Answer, that the note was given by the defendant to the plaint- iff for money loaned by the latter to the former; that, to secure the pay- ment thereof, the defendant executed to the plaintiff a deed, absolute on its face, but intended as a mortgage, for certain lands, of a value stated, in another county, in this State; that the plaintiff held possession of said real estate and refused to recon- vey the same and give possession thereof on the payment of the note. Held, that the answer set forth a proper counter-claim, within the meaning of the code, and the court thereby became invested with jurisdiction of the subject-matter......... ..Ibid.
See VOLUNTARY CONVEYANCE, 3.
See CONTRACT, 8; DIVORCE; FUGITIVE FROM JUSTICE; INJUNCTION, 3; NEW TRIAL; PRINCIPAL AND SURETY, 7; VERDICT; WITNESS, 1, 2. Abstract of record. See DOHERTY v. MCWORKMAN, 383.
1. Appeal from Interlocutory Order. In a suit by an administrator to sub- ject real estate to sale for the pay- ment of the debts of the decedent, an appeal to the Supreme Court from the interlocutory order of sale was taken, an appeal bond, approved by the court, being filed and the appeal prayed at the term at which the order was made.
Held, that the appeal was authorized by the code (section 576), and tak- en in accordance with its provisions
3. Same.-Mortgage.-- Subrogation.— Improvements. Where mortgaged
real estate has been sold and con- veyed 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 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.... Ibid. 4. Supreme Court.- Weight of Eri- dence. Where there is a conflict in the testimony, this court will not reverse a judgment on the weight of the evidence. Mc Caw et al. v. Burk et al..... ..56
finds evidence to support the finding, it will not go beyond this to deter- mine the preponderance of the evi- dence. Kinney v. Blythe.........140
Supreme Court.-This court will not, ordinarily, reverse a correct judgment merely because the court below may have acted upon a bad reason. The Ohio & Mississippi R. R. Co. v. Shultz.... .150
Erroneous Judgment. Judgment Taken Through Mistake, &c.-Ap- plication in the form of a complaint, to correct an order directing the distribution of an estate, on the grounds that the order was errone- ous and that the plaintiff's attorney misunderstood the action of the court and, being absent when the order was read, took no exception. Held, that the complaint, though it appeared therefrom that the action of the court was erroneous, was bad on demurreor. Dunham v. Tappan et al....... ..173
Criminal Law.-Motion in Arrest. A variance between the affidavit and the information cannot be taken advantage of by motion in arrest. Morris v. The State.................. 189
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, therefore, to allow them to be read. Held, that in this there was no error. Hubble v. Osborn.......... 249
Supreme Court.-Abstracts.-The evidence, although it be made a part of the record, if hot abstracted as required by rule tenth of this court, will not be examined. Hopkins v. Carr........
Amicus Curiæ.-A motion to dis- miss a suit on account of alleged defects in the complaint cannot properly be made by an amicus cu- rice. Piggott v. Kirkpatrick........261
Admission of New Party.-Com- plaint on a note and mortgage, the plaintiffs claiming to be the surviv- ing 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 error in this ruling. Aylesworth et al. v. Brown et al............270 17. Same.-Pleading.- Amendment.— An amendment of the complaint, so as to show the facts alleged in such petition, could properly have been made, only after the court had au- thorized the new party to come in....... .......... Ibid.
10. Supreme Court.-New Trial.— Assignment of Errors.-Where, in an assignment of errors, the only errors 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 11. Instruction to Jury.-There is no error in refusing to give to the jury an instruction asked by a party which is not pertinent to the issues. Hagee et al. v. Grossman..... 12. Assignment of Errors.-Criminal 18. Same.-The new party, having Law. In the assignment of errors on an appeal by the defendant in a criminal action, the only errors as- signed were, that the finding was contrary to law, and to the evidence given on the trial.
Ileld, that no question was properly presented for the decision of this court. Cavanaugh v. The State..229 13. Motion for New Trial.-Filing of Affidavits.-Motion for a new trial on the ground of misconduct of the jury. Affidavits in support, though ready, the party making the motion
been admitted, over the defendant's objection, upon such petition, which was signed by his attorney and the attorney of the other plaintiffs, was, without formal amendment of the complaint, treated thenceforth throughout the case as a party plaint- iff, without further objection. Held, that, under the circumstances, such petition might, on appeal to this court, be regarded as an amend- ment to the complaint............ Ibid. Dismissal.—Disclaimer.—One of the original plaintiffs was allowed
to dismiss the suit as to himself without filing a disclaimer. Held, that it was his right to do so. Ibid. Interrogatories. Harmless Er- ror. Where the defendant filed, with his answer, interrogatories to the plaintiff, which were answered, but the answers were not sufficient, and the court erroneously refused to compel him to answer, but it ap- peared by the record that the plaint- iff was sworn as a witness, and as such testified fully to the facts sought to be elicited by the interrogatories, fully supporting, in that respect, the averments of the answer;
Held, that the error could not avail the defendant ..Ibid.
21. Statement of Evidence to Jury.- Bill of Exceptions.-The statement of the evidence which a party is allowed to make to the jury by sec- tion 324 of the code is, as to its brevity or prolixity, a matter to be left, to a considerable extent, to the control of the court trying the cause; and where the interference of the court is complained of on appeal, the bill of exceptions must show the statement that was being made when the court interposed...... Ibid. 22. Supreme Court.-The Supreme
Court is not bound to express an opinion upon decisions of the lower courts which obviously result in no harm..... ........ Ibid.
Witness.- Character. Remarks of Court Before Jury.-A cross in- terrogatory was put to a witness which had been already twice pro- pounded and answered; and the court, upon objection made, refused to allow a third answer, remarking, in the hearing of the jury, that "when a witness of his standing and character had answered a question twice, it was sufficient."
Held, that, under the circumstances of the case, there was no error.....Ibid.
Parties.-Capacity to Sue.-A demurrer for the statutory cause of want of legal capacity to sue has reference to some legal disability of the plaintiff, such as infancy, idiocy, or coverture, and not to the fact that the complaint upon its face fails to show a right of action in the plaint- iff. Debolt v. Carter et al.........355 25. Same.-Plaintiffs.-Misjoinder of. Where two or more plaintiffs unite)
in bringing a joint action, and the facts stated do not show a joint cause of action in them, the proper mode of taking advantage of the defect is by demurrer to the com- plaint, because it does not state facts sufficient to constitute a cause of action; and the defect can only be cured by striking out the name of the plaintiff improperly joined, or by so amending the complaint as to show a right of action in all the partics....... ..Ibid.
Same.— Obstruction of Highway.- Injunction. In an action to enjoin the obstruction of a public highway within the limits of an incorporated town and under the jurisdiction and control of such corporation, brought by a plaintiff who predicates his right to such relief on the ground that he is the owner of certain lots fronting upon the highway obstruc- ted, such corporation is not a neces- sary party plaintiff................ Ibid, 27. Another Action Pending.—Suit by the owner of certain town lots, de- nying the existence of a highway upon and along a portion thereof, as claimed by the defendant and seck- ing to quiet the plaintiff's possession of the lots, freed from the claim of such highway, praying a perpetual injunction against the defendant restraining him from disturbing the plaintiff's possession or asserting an casement over the lots as a public highway. After answer and reply, the defendant filed a cross complaint, asserting the existence of an ease- ment as a public highway over a part of said lots, charging the plaint- iff with having unlawfully obstruct- ed it, to the special injury of the defendant, and praying that the plaintiff be perpetually enjoined from repeating or continuing such obstruction.
Held, that the cross complaint was not bad on demurrer on the ground that another action was pending between the same parties for the same cause, to wit, the original complaint, the answer, and the reply. ..Ibid.
28. Finding Beyond the Issue.-Mo- tion for Judgment on the 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 ev- ery point in issue, 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-
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
defendant as tenant of the plaintiff, for non-payment, upon ten days' notice, of rent due, and also for the rent unpaid, in one paragraph. Find- ing, that the plaintiff was not enti- tled to the possession of the premises, and that the defendant was indebted to the plaintiff in a certain sum. Judgment for the sum found duc. Held, that if two causes of action were improperly joined, the only method to reach that error was by demurrer. Held, also, that this court can in no case reverse a judgment for this error. Burrows v. Holderman et al.... ..412
See CRIMINAL LAW, 35, 36, 37, 43, 44, 45, 49; TRUST, 8; VOLUNTARY CON- VEYANCE, 2.
Use of deadly weapon. See CRIMINAL LAW, 28, 41, 45.
29. Replevin.-Affidavit.-In an ac- tion of replevin in the court of com- mon pleas, the affidavit of the plaint-See ESTOPPEL, 3; HUSBAND AND WIFE, 12, 20; PARTIES, 4; SALE, 7.
iff for delivery of the property to him did not state whether or not it had been seized under an attachment against his property. Held, that the affidavit was bad. Bridges v. Layman et al............384 30. Record-Interrogatories.-Reject-
Official Bond.-The principal obli- gor in a county treasurer's official bond is not the agent of the board of county commissioners in procur- ing its execution. The State, ex rel. McCarty v. Pepper et al.............. 76
Declarations. As steps in proving the authority of one as an agent in the transaction in controversy, evi- dence of his similar transactions with different persons and of his declara- tions therein was held admissible. Morehead v. Murray et al..........418
Extension of Time.- Contract.-An oral agreement by the payee of a promissory note with the principal maker, without the knowledge or consent of the surety, whose surety- ship is known to the payee, to cx- tend the time of payment during a definite period beyond the maturity of the paper, is valid, and releases the surety, if founded upon a suffi- cient consideration. Pierce v. Golds- berry....... .52
Same.-Consideration.-Interest.- The oral agreement of the principal
debtor to pay merely the same interest that the note would have borne if the indulgence had been given voluntarily, is a sufficient consideration for such a promise of forbearance....... .......Ibid.
3. Estoppel.-Bond.-When a bond has been signed and delivered to the principal obligor by a surety, upon the condition that others, not named in the instrument, shall sign before it is delivered to the obligee, and it is delivered without such signatures being obtained, and received by the obligee without notice of such condition or circumstances which should put him upon inquiry, the condition imposed will not avail the surety. This is not a question of the power of the principal to deliver the bond in its apparently perfect condition, but simply a question of estoppel. The State, ex rel. Mc Carty, &c., v. Pepper et al.......76 4. Same-Blanks.-A surety signing| and delivering to the principal obligor a bond before the names of the sureties have been inserted in the body of the instrument will be held as agreeing that the blank for such names may be filled after he has executed it........ .....Ibid. 5. Same. Signing After Forged Signature.-A surety signed a county treasurer's official bond, at the request of the principal obligor, after the signatures of other sureties, without reading it, or hearing it read, or asking what it was, upon being told by the principal that it was a county paper.
the knowledge or consent of B., upon the requirement of the officers of the bank, but with the express agreement with said officers that he did so as surety or guarantor to the bank for both the other makers, and not as joint surety with B. After maturity, the bank sued A., B., and C. upon the note; C. was "not found;" and judgment was rendered against A. and B. by default, upon their failure to appear. C. paid the bank the amount of the judgment, under a promise by the bank to assign it to him.
Held, that the signing by C. was not
such an alteration of the note as rendered it void as to B.
Held, also, that C. was not a co-surety with B.
Held, also, that C. was entitled to execution for his benefit on said judgment against A. and B., and, A. having become insolvent, such execution was properly levied for the whole amount thereof upon the property of B. Bowser et al. v. Rendell...... ..128
See JURISDICTION, 7, 8, 10.
PROCEEDING SUPPLEMENTARY TO EXECUTION.
See EPPLY v. Mowrer, 239. PROCESS.
See PRACTICE, 3; PRINCIPAL AND SURE- TY, 7.
Held, that such surety was not released by the fact that one of the signatures before his was forged............Ibid. 6. Agency.-Official Bond.-The principal obligor in a county treasurer's official bond is not the agent of the board of county commissioners in procuring its execution........... Ibid. 1. 7. Co-Surety.-Alteration of Writing.
A promissory note payable to and at a certain bank was signed by A. and B., the former being the maker, the latter his surety, and delivered by A., for a valuable consideration, to C,, who for the purpose of having it discounted for his benefit at said bank, it having been prepared by A. and B. with that expectation, signed the note as maker, without
See DAMAGES, 4. Of wife's separate property. See HusBAND AND WIFE, 4, 15.
Railroad.- Directors.- Fraud.— Persons who are directors of a railroad company cannot acquire such an interest in the profits of a contract for the construction of the road as to give them a standing in a court of equity to interpose an objection to the consummation of a compromise between the railroad company and its contractor. Paine et al. v. The Lake Erie & Louisville R. R. Co........ ...283
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