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but the proper result having been (section 577). Simpson et al. v.
attained by demurrer, there was no Pearson, Adnr......
available error. Picken et al. v. 2. Code.—Law and Equity. Under
.402 our code, the same protection to
26. Answer.- Jurisdiction.- Code.- equitable rights may be invoked
Under our code, a defendant may set against a party seeking to enforce a
forth in his answer as many grounds right under a legal form as if such
of defense, counter-claim, and set- party were proceeding under equity
off, whether legal or equitable, as forms. Troost v. Daris, Sheriff, et
he may have, without regard to
the location of the subject matter. 3. Same.- Mortgage.-- Subrogation.-
Vail et al. v. Jones et al......... 467 Improvements.- Where mortgaged
27. Same.--Mortgage.-Suit on a note, real estate has been sold and con-
in the circuit court of a certain veyed by the mortgagor to the
county. Answer, that the note was mortgagee or his assignee, there bc-
given by the defendant to the plaint- ing a junior judgment-lien thereon,
iff for money loaned by the latter to and the vendee of such purchaser,
the former; that, to secure the pay- without actual notice of such judg-
ment thereof, the defendant executed ment-lien, has expended money in
to the plaintiff a deed, absolute on valuable permanent improvements,
its face, but intended as a mortgage, without which the value of the
for certain lands, of a value stated, property would not exceed the mort-
in another county, in this State; gage; though the judgment-plaint-
that the plaintiff held possession of iff has a complete legal remedy
said real estate and refused to recon- to enforce his lien, by execution,
vey the same and give possession yet, upon the application of such
thereof on the payment of the note. vendee, the execution-plaintiff will
Ileld, that the answer set forth a proper be required to exercise his legal
counter-claim, within the meaning right subject to the equitable right
of the code, and the court thereby of the vendee, for whom the mort-
became invested with jurisdiction of gage will be kept on foot, and to
the subject-matter.... ..... Ibid. whom the value of the improve-
ments will be allowed—the court,
in taking account, charging the ren-
dee with the value of the rents of
See VOLUNTARY CONVEYANCE, 3. 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 Eric
See CONTRACT, 8; DIVORCE; FUGITIVE dence.-Where there is a conflict in
FROM JUSTICE; INJUNCTION, 3; New the testimony, this court will not
TriAL; PRINCIPAL AND SURETY, 7; reverse a judgment on the weight
VERDICT; WITNESS, 1, 2.
of the evidence. McCaw et al. v.
Abstract of record. Sce DOHERTY v. Burk et al......
5. Fraud.— Resulting Trust.-Com-
Where a conveyance
1. Appeal from Interlocutory Order. of real estate, for a valuable consid-
In a suit by an administrator to sub- eration, is made to one person, the
ject real estate to sale for the pay- consideration being paid by another,
ment of the debts of the decedent, for the purpose of defrauding the
an appeal to the Supreme Court creditors of the latter, such a creditor
from the interlocutory order of sale may, under the code, have a com-
was taken, an appeal bond, approved plete remedy in one action: a judg-
by the court, being filed and the ment may be obtained against tho
appeal prayed at the term at which debtor and the real estate in ques-
the order was made.
tion subjected to the payment of the
Held, that the appeal was authorized judgment. Lindley et al. v. Cross et
by the code (section 576), and tak-
en in accordance with its provisions 6. Supreme Court.-Preponderance of
Evidence.-Where the Supreme Court
finds evidence to support the finding, refused to put on file or submit to
it will not go beyond this to deter- the inspection of the opposing coun-
mine the preponderance of the evi- sel before the motion was taken up
dence. Kinney v. Blythe.........140 for argument, though he was previ-
7. Supreme Court.—This court will ously notified in open court that
not, ordinarily, reverse a correct objection would be made to the
judgment merely because the court reading of them unless they were so
below may have acted upon a bad filed. The court refused, therefore,
rcason. The Ohio f: Mississippi R. to allow them to be read.
R. Co. v. Shultz..... .........150 Held, that in this there was no error.
8. Erroneous Judgment. — Judgment Ilubble v. Osborn............. .249
Taken Through Mistake, d'e.--Ap- 14. Supreme Court.--Abstracts.—The
plication in the form of a complaint, evidence, although it be made a part
to correct an order directing the of the record, if not abstracted as
distribution of an estate, on the required by rule tenth of this court,
grounds that the order was errone- will not be examined. Hopkins v.
ous and that the plaintiff's attorney Carr....
misunderstood the action of the 15. Amicus Curiæ.-A motion to dis-
court and, being absent when the miss a suit on account of alleged
order was read, took no exception. defects in the complaint cannot
TIeld, that the complaint, though it properly be made by an amicus cu-
appeared therefrom that the action riæ. Piggott v. Kirkpatrick ........261
of the court was crroncous, was bad 16. Admission of New Party.-Com-
Dunham v. Tappan plaint on a note and mortgage, the
..173 plaintiffs claiming to be the surviv-
9. Criminal Law.- Motion in Arrest. ing partners of a late firm named.
A variance between the affidavit Before any further pleadings had
and the information cannot be taken been filed, another person filed a
advantage of by motion in arrest. petition, alleging, that he was a
Morris v. The State..................189 member of said late firm to which
10. Supreme Court.-New Trial.- the note in suit was payable, and as
Assignment of Errors.- Where, in such had an interest, and praying
an assignment of errors, the only to be made a party plaintiff; and the
crrors complained of relate to mat- court so ordered.
ters occurring on the trial for which lield, the facts alleged in the petition
a new trial was prayed, but the ac- being undisputed, that there was no
tion of the court in overruling the error in this ruling. Aylesworth et
motion is not assigned for error, no al. v. Brown et al....... .........270
question is properly raised in this 17. Same.-- Pleading.- Amendment.-
court.' Lingerman et al. v. Nave.222 An amendment of the complaint, so
11. Instruction to Jury.There is no as to show the facts alleged in such
error in refusing to give to the jury petition, could properly have been
an instruction asked by a party made, only after the court had au-
which is not pertinent to the issues. thorized the new party to come
Ilage et al. v. Grossman...........223 in........
12. Assignment of Errors.- Criminal 18. Same.— The new party, having
Law.-In the assignment of errors been admitted, over the defendant's
on an appeal by the defendant in a objection, upon such petition, which
criminal action, the only errors as- was signed by his attorncy and
signed were, that the finding was the attorney of the other plaintiffs,
contrary to law, and to the evidence was, without formal amendment of
given on the trial.
the complaint, treated thenceforth
lleld, that no question was properly throughout the case as a party plaint-
presented for the decision of this iff, without further objection.
court. Cavanaugh v. The State..229 Held, that, under the circumstances,
13. Motion for New Trial.-Filing of such petition might, on appeal to
Affidavits.-Motion for a new trial this court, be regarded as an amend-
on the ground of misconduct of the ment to the complaint............Ibid.
jury. Affidavits in support, though 19. Dismissal.- Disclaimer.—One of
ready, the party making the motion the original plaintiff's was allowed
to dismiss the suit as to himself in bringing a joint action, and the
without filing a disclaimer.
facts stated do not show a joint
Held, that it was his right to do so.Ibid. cause of action in them, the proper
20. Interrogatories.- llarmless Er- mode of taking advantage of the
:- Where the defendant filed, defect is by demurrer to the com-
with his answer, interrogatories to plaint, because it does not state facts
the plaintiff, which were answered, sufficient to constitute a cause of
but the answers were not sufficient, action; and the defect can only be
and the court erroneously refused to cured by striking out the name of
compel him to answer, but it ap- the plaintiff improperly joined, or
peared by the record that the plaint- by so amending the complaint as to
iff was sworn as a witness, and as show a right of action in all the
such testified fully to the facts sought parties......
to be elicited by the interrogatories, 26. Same.- Obstruction of Highway.-
fully supporting, in that respect, the Injunction.-In an action to enjoin
averments of the answer;
the obstruction of a public highway
Held, that the crror could not avail the within the limits of an incorporated
..Ibid. town and under the jurisdiction and
21. Statement of Evidence to Jury.- control of such corporation, brought
Bill of Erceptions. The statement by a plaintiff who predicates bis
of the evidence which a party is right to such relief on the ground
allowed to make to the jury by sec- that he is the owner of certain lots
tion 324 of the code is, as to its fronting upon the highway obstruc-
brcvity or prolixity, a matter to be ted, such corporation is not a neces-
left, to a considerable extent, to the sary party plaintiff...
control of the court trying the cause; 27. Another Action Pending.–Suit by
and where the interference of the the owner of certain town lots, de-
court is complained of on appeal, nying the existence of a highway
the bill of exceptions must show the upon and along a portion thercof, 13
statement that was being made claimed by the defendant and seck-
when the court interposed...... Ibid. ing to quict the plaintiff's possession
Supreme Court.—The Supreme of the lots, freed from the claim of
Court is not bound to express an such highway, praying a perpetual
opinion upon decisions of the lower injunction against the defendant
courts which obviously result in no restraining him from disturbing the
.... Ibid. plaintiff's possession or asserting an
23. Witness.- Character.- Remarks casement over the lots as a public
of Court Before Jury.-A cross in- highway. After answer and reply,
terrogatory was put to a witness the defendant filed a cross complaint,
which had been already twice pro- asserting the existence of an case-
pounded and answered; and the ment as a public highway orer a
court, upon objection made, refused part of said lots, charging the plaint-
to allow a third answer, remarking, iff with having unlawfully obstruct-
in the hcaring of the jury, that cd it, to the special injury of the
"when a witness of his standing and defendant, and praying that the
character had answered a question plaintiff bo perpetually cojoined
twice, it was sufficient.”
from repeating or continuing such
Held, that, under the circumstances of obstruction.
the case, there was no error.....Ibid. 1cld, that the cross complaint was not
24. Parties.- Capacity to Suc.--A bad on demurrcr on the ground that
demurrer for the statutory cause of another action was pending between
want of legal capacity to sue has the same parties for the same cause,
reference to some legal disability of to wit, the original complaint, the
the plaintiff, such as infancy, idiocy, answer, and the reply. Ibid.
or coverture, and not to the fact that | 28. Finding Beyond the issue.-15-
the complaint upon its face fails to tion for Judgment on the finding.–
show a right of action in the plaint- On the trial, in the circuit court, of
iff. Debolt v. Carter et al.........355 an action commenced before a jrs-
25. Same.- Plaintiffs.- Misjoinder of. tice of the peace, to recover upon a
Where two or more plaintiffs unite stock subscription, the execution of
the instrumcnt not being denied by defendant as tenant of the plaintiff,
the defendant under oath, the court for non-payment, upon ten days'
found specially for the plaintiff er- notice, of rent due, and also for the
ery point in issue, so that judgment rent unpaid, in one paragraph. Find-
could have been rendered for the ing, that the plaintiff was not enti-
instalment sued for, but found fur- tled to the possession of the premises,
ther, that, after the defendant had and that the defendant was indebted
executed the instrument it had been to the plaintiff in a certain sum.
altered in a material part, without Judgment for the sum found duo.
his knowledge or authority, and, Held, that if two causes of action were
over a motion by the plaintiff for a improperly joined, the only method
new trial, rendered judgment, with- to reach that error was by demurrer.
out further objection, for the defend- Held, also, that this court can in no
case reverse a judgment for this
lield, that the motion for a new trial
Burrows v. Holderman ct
did not raise any question; but a al.
motion for judgment on the finding
should have been made, in order to
present the question involved to the
See CRIMINAL LAW, 35, 36, 37, 43, 44,
Held, also, that the question could not 45, 49; Trust, 8; VOLUNTARY Con-
be made for the first time in the VEYANCE, 2.
Supreme Court. The Fishback and Use of deadly weapon. Sce CRIMINAL
Elizabethtown Gravel Road Co. v. Law, 28, 41, 45.
29. Replevin.-Afidavit.-In an ac- PRINCIPAL AND AGENT.
tion of replevin in the court of com-
mon pleas, the affidavit of the plaint- See EstOPPEL, 3; HUSBAND AND WIFE,
iff for delivery of the property to 12, 20; PARTIES, 4; SALE, 7.
him did not state whether or not it
had been seized under an attachment 1. Official Bond.-The principal obli-
against his property.
gor in a county treasurer's oficial
IIcld, that the affidavit was bad. bond is not the agent of the board
Bridges v. Layman et al............384 of county commissioners in procur-
30. Record. Interrogatorics.- Reject- ing its execution. The State, ex rel.
ed Pleadings.--Interrogatorics filed McCarty v. Pepper et al.............. 76
by a party to an action, and the an- 2. Declarations.-As steps in proving
swers thereto by the opposite party, the authority of one as an agent in
and paragraphs of answer to the the transaction in controversy, evi-
complaint which are rejected by the dence of his similar transactions with
court on motion, are not parts of the different persons and of his declara-
record if not made so by bill of ex- tions therein was held admissible.
ceptions. Klingensmith et al. v. Morehead v. Murray et al.......... 413
Supreme Court.— Judgment.- PRINCIPAL AND SURETY.
Form of.-No question can be made
in the Supreme Court as to the form 1. Extension of Time.-Contract.-An
of a judgment where no objection oral agreement by the payee of a
has been taken below. Eaton et al. promissory note with the principal
v. Burns et al ..........
maker, without the knowledge or
Supreme Court.-- Credibility of consent of the surety, whose surety-
IVitness. Where, upon appeal to ship is known to the payee, to ex-
the Supreme Court, the question is tend the time of payment during a
one of credibility of witnesses sole- definite period beyond the maturity
ly, the action of the lower court will of the paper, is valid, and releases
stand. The Columbus f Indpolis the surety, if founded upon a suffi-
Central Railway Co. v. Farrell...408 cient consideration. Pierce v. Golds-
33. Demurrer.-Misjoinder of Causes. berryj......
Complaint to recover the possession 2. Same.- Consideration. Interest.-
of certain real estate held by the The oral agreement of the principal
debtor to pay merely the same in- the knowledge or consent of B., upterest that the note would have on the requirement of the officers borne if the indulgence had been of the bank, but with the express given voluntarily, is a sufficient con- agreement with said officers that he sideration for such a promise of for- did so as surety or guarantor to the bearance....
....... Ibid. bank for both the other makers, and 3. Estoppel.- Bond.- When a bond not as joint surety with B. After
has been signed and delivered to maturity, the bank sued A., B., and the principal obligor by a surety, C. upon the note; C. was not upon the condition that others, not found;" and judgment was rendered named in the instrument, shall sign against A. and B. by default, upon before it is delivered to the obligee, their failure to appear. C. paid the and it is delivered without such sig- bank the amount of the judgment, natures being obtained, and received under a promise by the bank to by the obligce without notice of assign it to him. such condition or circumstances Ileld, that the signing by C. was not which should put him upon inquiry, such an alteration of the note as the condition imposed will not avail rendered it void as to B. the surety. This is not a question Held, also, that C. was not a co-surety of the power of the principal to with B. deliver the bond in its apparently Held, also, that C. was entitled to experfect condition, but simply a ques- ccution for his benefit on said judgtion of estoppel. The State, ex rel. ment against A. and B., and, A.
McCarty, &c., v. Pepper et al....... 76 having become insolvent, such exe4. Same. ---Blunks.- A surety signing cution was properly levied for the
and delivering to the principal obli- whole amount thereof upon the gor a bond before the names of the property of B. Bowser et al. v. Rensuretics have been inserted in the dell.
128 body of the instrument will be held as agreeing that the blank for such
PROBATE COURT. names may be filled after he has executed it.......
..Ibid. See JURISDICTION, 7, 8, 10. 5. Same.- Signing After Forged Sig
nature.—A surety signed a county PROCEEDING SUPPLEMENTARY treasurer's official bond, at the re
TO EXECUTION. quest of the principal obligor, after the signatures of other sureties, See Erply v. MOWRER, 239. without reading it,or hearing it read, or asking what it was, upon being
PROCESS. told by the principal that it was a county paper.
See PRACTICE, 3; PRINCIPAL AND STREHeld, that such surety was not released by the fact that one of the signatures
PROFITS. before his was forged.............Ibid. 6. Agency.- Official Bond.- Tbc prin
See DAMAGES, 4. cipal obligor in a county treasurer's Of wife's separate property. See Husofficial bond is not the agent of the LAND AND WIFE, 4, 15. board of county commissioners in
procuring its execution............Ibid. 1. Railroad.- Directors.- Fraud. 7. Co-Surety.- Alteration of Writing. Persons who are directors of a rail
A promissory note payable to and road company cannot acquire such at a certain bank was signed by A. an interest in the profits of a conand B., the former being the maker, tract for the construction of the road the latter his surety, and delivered as to give them a standing in a court by A., for a valuable consideration, of equity to irterpose an objection to C,, who for the purpose of having
to the consummation of a comproit discounted for his bencfit at said mise between the railroad company bank, it having been prepared by and its contractor. Paine et al. v. A. and B. with that expectation, The Lake Erie f Louisville R. R. signed the note as maker, without Co........