(section 577).
Pearson, Adm'r......
Code.-Law and Equity.-Under
our code, the same protection to
equitable rights may be invoked
against a party seeking to enforce a
right under a legal form as if such
party were proceeding under equity
forms. Troost v. Davis, Sheriff, et
al
but the proper result having been
attained by demurrer, there was no
available error. Picken et al. v.
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. 3. Same.-Mortgage.-- Subrogation.—
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
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-
Idee 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
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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
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.
Erroneous Judgment.- Judgment | Hubble v. Osborn....................249
Taken Through Mistake, &c.-Ap- 14.
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......
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.
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.
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.
Ield, 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
Same.-The new party, having
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.
19.
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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