Volume 158 — Indiana Reports

<p>Prom Marion Circuit Court; H. C. Allen, Judge.</p> <p>Proceeding by the Board of Children’s Guardians of Marion County against Martin V. Wilkison to obtain the custody and control of Zola Rankin. Prom a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Transfer of Cause to Supreme Court. — Under the provision of §1337j Burns 1901 that if a petition for a rehearing is filed by the losing party, and such petition is overruled, the clerk shall not certify the “opinion and judgment ” in said case to the lower court until the expiration of thirty days from the date of said ruling, and such losing party may, at any time within thirty days after his petition for a rehearing has been overruled, file in the Supreme Court an application for the transfer of the cause to the Supreme Court on the ground that the opinion of the Appellate Court contravenes a ruling precedent of the Supreme Court, or that a new question of law is directly involved and was decided wrong, an application to transfer will be denied where the Appellate Court affirmed the judgment without a written opinion, pp. 10-14.</p> <p>Same. — Appellate Court. — Written Opinions. — Section 1337q Bums 1901 makes it the duty of the Appellate Court to file a written opinion only where the judgment of the trial court is reversed, pp. 11,12.</p> <p>Same. — Appellate Court. — Written Opinions. — Constitutional Law. — The Appellate Court is not controlled by article 7, §5 of the Constitution which provides that “the Supreme Court shall upon the decision of every case, give a statement in writing of each question arising in the record of such case and the decision of the court thereon.” p. 12.</p>

<p>From White Circuit Court; T. F. Palmer, Judge.</p> <p>Action by Charles R. Weatherhogg against the board of commissioners of Jasper county for balance due on contract for services as architect of court-house. From a judgment for defendant, plaintiff appeals.</p>

From Pike Circuit Court; E. A. Ely, Judge. Action by Clement V. Reed against the Baltimore and Ohio Southwestern Railroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

<p>Appeal and Error. — Court Rules. — Failure to Index Record. — Where the appellant fails to prepare an index of the record, as required by rule three of the Supreme Court, the appeal will be dismissed.</p>

<p>Criminal Law. — Murder.—Self-Defense.—Instruction.—In a prosecution for murder defendant sought to justify his act on the ground of self-defense. The evidence showed that some stones or cinders were thrown against defendant’s house, and that defendant went out of the house to discover the persons who were throwing the stones, and stated to four young men, including deceased, that he had a shotgun in the house, loaded, and that he would use it on the persons throwing the stones; that defendant returned to the house, and, upon more stones being thrown, came out of the house with his gun, and shot and killed deceased. The court, in instructing the jury on the right of self-defense, stated that a person must, in the exercise of such right, act honestly, and might exercise a reasonable degree of force to repel an attack, “but must not provoke an attack in order that he may have an apparent excuse for killing his adversary. ’ ’ Held, that the instruction was not erroneous as being irrelevant to. the evidence and the issues in the case. pp. 37-45.</p> <p>Same. — Murder.—Self-Defense.—Instruction.—An instruction in a prosecution for murder to the effect that if the evidence showed that the deceased and his companions on the night of the homicide “maliciously and mischievously” threw stones or cinders against the house where defendant resided, without intent to commit a felony, such conduct on their part would be merely a misdemeanor, followed by an instruction that if. defendant was not assailed and was not in danger of great bodily harm, and had no reason to believe, and in fact did not believe, that his life was in danger, the shooting was not justifiable, is not open to the objection that it makes the law of self-defense depend upon the intent of the assailant rather than upon what the person assailed might believe was the intent or purpose of his assailant, pp. 45-47.</p>

<p>Appeal and Error. — Harmless Error. — Where in an action for the value of certain land conveyed to defendant, and for an accounting, defendant answered that plaintiff agreed to convey free of encumbrance, but that defendant was fraudulently induced to accept a deed in which he assumed certain encumbrances thereon, error, if any, in overruling a demurrer to such answer was rendered harmless by a finding sustaining the deed and holding that the clause assuming the encumbrances was inserted by mistake, pp. 48-50.</p> <p>Law of Case. — Trust Deeds. — Mortgages.—In an action for an accounting under an alleged trust a decision of the Supreme Court on a former appeal holding that the conveyances alleged to be deeds, and to create a trust, were mortgages only, conclusively establishes the character of such instruments, pp. 50, 51.</p> <p>Appeal and Error. — Exceptions to Conclusions of Law. — Exceptions to conclusions of law in gross by plaintiffs jointly are not available unless all of the conclusions were erroneous as to all of the plaintiffs, pp. 52-54.</p>

<p>From Sullivan Circuit Court; O. B. Harris, Judge.</p> <p>Action by James H. Poe against Nathan G-. Dixon on certain trade checks. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Criminal Law. — Receiving Stolen Goods. — Affidavit and Information.— An affidavit and information under §2012 Burns 1901 for receiving stolen goods must charge in substance that the goods had been stolen, and had been received by defendant knowing that they had been stolen, p. 56.</p> <p>Same. — Indictment.—An indictment or information is sufficient if the charge is made substantially in the language of the statute defining the offense. . pp:'56, 57.</p> <p>Same. — Receiving Stolen Goods.- — Affidavit and Information. — Am averment in an information for receiving stolen goods that defendant “feloniously” received the goods that had been stolen is equivalent to charging that defendant received the goods which at the time of receiving were still under the larcenous taking, p. 57.</p> <p>Same. — Receiving Stolen Goods. — Affidavit and Information. — An information in a prosecution for receiving stolen goods need not charge the name of the thief, nor allege that the name of the thief is unknown to affiant, and an averment that the name is unknown will be regarded as surplusage, pp. 57-59.</p>

From Marion, Superior Court; J. W. Holtzman, Special Judge. Suit by Louise Leibold against Frank J. Leibold for tlie support and custody of their minor children. From .judgment in favor of plaintiff, defendant appeals.

<p>Railroads. —Negligence.—Carriers.—Trespassers. —Plaintiff’s decedent alighted from a train in the railroad switch-yard and proceeded to walk in the space between the tracks of the carrier company and those of defendant toward a public street and was struck by an engine belonging to defendant company resulting in injuries, causing his death. There was no evidence that decedent’s peril had been perceived by the men in charge of the engine. Held, that decedent was a trespasser upon defendant’s tracks, that defendant did not owe him the duty to use ordinary care for his protection and was not liable for negligently causing his death. pp. 63-69.</p> <p>Same. — Wilfulness.—Decedent was passing along defendant railroad company’s private tracks and as he approached a public crossing was struck by defendant’s engine and received injuries resulting in his death. The engine was being run at the rate of fifteen miles an hour, in violation of the city ordinance, without sounding the whistle or ringing the bell. The particular peril that resulted in the death of decedent was a matter of but little more than a moment’s duration, and there was no evidence that defendant’s servants in charge of the engine had knowledge thereof. Held, that the killing was not wilful, pp. 69-71.</p>

<p>From Grant Circuit Court; II. J. Paulus, Judge.</p> <p>Suit for partition by Martha J. Fenstermaker against Cortie Holman and others. From a decree for defendants, plaintiff appeals.</p>

<p>From Madison Circuit Court; J. F. McClure, Judge.</p> <p>Action by Charles T. Doxey against David K. Carver and others on a promissory note. From a judgment for plaintiff, defendants appeal. After the rendition of the judgment Charles T. Doxey died and his executors and legatees were made party appellees.</p>

<p>From Vanderburgh Superior Court; J. H. Foster, Judge.</p> <p>Suit by Johanna Eissler against John Hoppel and others to contest a will. From a judgment for defendants on their answer, plaintiff appeals.</p>

<p>From Jennings Circuit Court; Willard New, Judge.</p> <p>Action by Thomas E. Jones against the Baltimore and Ohio Southwestern Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals.</p>

From Hancock Circuit Court; J. E. McCullough, Special Judge. Action by James W. Fry and others against Samuel W. Wray to enforce the lien of a sewer assessment. From a judgment for plaintiffs, defendant appeals.

From Clay Circuit Court; S. M. McGregor, Judge. Action by James Soules as guardian of Cassius E. Reeves, a person of unsound mind, against Frederick J. S. Robinson and another to set aside defendants’ appointments as guardians for said Reeves. From a judgment in favor of defendants, plaintiff appeals.

From Monroe Circuit Court; W. H. Martin, Judge. Mandamus by State on relation of John D. Morgan to compel the county council of Monroe county to make an appropriation of a certain sum as compensation due relator as county assessor. From a judgment for defendants, relator appeals.

From Marion Superior Court; J. L. McMaster, Judge. Action by Leon Bonham, by his next friend, against the Citizens Street Railway Company for damages for personal injuries. From a judgment for defendant, plaintiff appeals.

<p>Building and Loan Associations. — Receivers.—The statute concerning building and loan associations makes full provisions for actions to dissolve such associations, and the appointment of a receiver for an association, at the suit of a stockholder, without the recommendation of the Auditor of State, is in violation of the statute, and unauthorized.</p>

From Harrison Circuit Court; C. W. Cook, Judge. Mandamus by the State on the relation of Daniel J. Bowling, county assessor, against George W. Applegate as president of a bank to compel suck bank to allow relator as suck taxing officer to inspect its books. Prom an order granting the writ, defendant appeals.

From Allen Circuit Court; E. O’Rourke, Judge. Mandamus by the State on the relation of William Geake and others, as commissioners of the board of public safety for the city of Ft. Wayne, against Joseph V. Fox, comptroller, to compel the approval and filing of their bonds. From a judgment in favor of defendant, the relators appeal.

From Lake Circuit Court; E. P. Hammond, Special Judge. Suit by Henry P. Swartz to enjoin the board of commissioners of Lake county from constructing a courthouse at the city of Hammond. From a judgment for defendant, plaintiff appeals.

From Monroe Circuit Court; W. H. Martin, Judge. Mandamus by William V. Payne against Samuel Kerr, auditor of Monroe county, to compel him to convene the county council to make an appropriation to pay the balance of an amount allowed by the board of commissioners for the per diem of relator as county superintendent. From a judgment in favor of defendant, relator appeals.

<p>Appeal and Error. — Bill of Exceptions. — Evidence.—Under the act of 1897 (Acts 1897, p. 214) the hill of exceptions containing the evidence must he filed in open court or with the clerk after it has been approved and signed hy the trial judge.</p>

From LaPorte Circuit Court; J. G. Richter, Judge. Proceeding for the establishment of a drain in which the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company remonstrated. From a judgment establishing the drain, the remonstrant appeals.

From Elkhart Circuit Court; J. D. Ferrall, Judge. Action by Perry L. Turner against the board of commissioners of Elkhart county for services rendered as an attorney at law in the prosecution of a murder case. From a judgment for defendant, plaintiff appeals.

<p>Elections. — Primary Election Law. — The act of 1901 (Acts 1901, p. 495) known as the primary election law does not govern nominations for office which are required to be filled by the voters of a district composed of more than a single county.</p>

From Adams Circuit Court; D. D. Heller, Judge. Action by Flint & Walling Manufacturing Company against the R. G. Marcy Manufacturing Company to recover damages for the infringement of a trade-mark, for fraud and unfair competition in business, and to obtain an injunction. From a judgment for plaintiff, defendant appeals.

From Adams Circuit Court; D. D. Heller, Judge. Action by Sebastian Miller against the Wabash Railroad Company for damages from fire escaping from defendant’s right of way. From a judgment for plaintiff, defendant appeals.

From Marion Circuit Court; H. C. Allen, Judge. Action by the State on the relation of the board of commissioners of Marion county on the bond of William E. Shilling as recorder of said county for fees collected and not paid over. From a judgment in favor of relator, defendants appeal.

From Montgomery Circuit Court; Jere West, Judge. Suit by State on the relation of John M. Zimmerman against the Chicago, Indianapolis and Louisville Railway Company to compel defendant by writ of mandamus to construct a highway crossing. From a judgment in favor of relator, defendant appeals.

From Perry Circuit Court; E. M. Swan, Judge. Edward C. Henning was indicted for altering a public record. The indictment was quashed, and the State appeals.

<p>From Sullivan Circuit Court; W. W. Moffett, Judge.</p> <p>Action by Frank Bell against the Town of Sullivan on account for wages as common laborer. From a judgment for defendant, plaintiff appeals.</p>

From Warren Circuit Court; J. M. Rabb, Judge. Action by Ira Cadwallader against John C. Goodwine for damages for breach of oral contract. From a judgment for plaintiff, defendant appeals.

<p>From Marion Superior Court; Vinson Carter, Judge.</p> <p>Action by "William C. Smith against Sarah A. Hibben for the enforcement of a street improvement assessmentErom a judgment for plaintiff, defendant appeals.</p>

From Madison Circuit Court; J. F. McClure, Judge, Action by Patrick O’Brien against Adolph Louer and others to enjoin defendants from making certain changes in a frame building situated within the fire limits of the city of Elwood. From a judgment in favor of defendants, plaintiff appeals.

From Newton Circuit Court; S. P. Thompson, Judge. Petition by George Sigler and others for the relocation of the county seat of Newton County. Carrol C. Kent and others filed answer, and, upon such answer.being held insufficient by the board of commissioners, appealed to the circuit court. The court sustained a demurrer to the answer and rendered judgment thereon, and defendants appeal.

From Clay Circuit Court; S. M. McGregor, Judge. Action by Catherine O’Brien and others against the Central Iron and Steel Company and others for damages for the obstruction of a street. From a judgment for defendants, plaintiffs appeal.

<p>Appeal and Error. — Vacation Appeal. — Parties.—Dismissal.—In order to give the Supreme Court jurisdiction of an appeal taken in vacation, all coparties to the judgment, with appellants,» should he made co-appellants, or the appeal will he dismissed.</p>

From Madison Superior Court; H. C. Ryan, Judge. Action by Bartlett H. Campbell, receiver of the Union Land and Improvement Company, against James R. Carnahan and others, to recover on unpaid stock subscriptions. From a judgment for plaintiff, defendants appeal.

From Marion Circuit Court; H. C. Allen, Judge. Action by John W. Murphy and others against the city of Indianapolis for damages to property from-water and sewage. From a judgment for defendant, plaintiffs appeal.

From Marion Superior Court; Vinson Carter, Judge. Mandamus by the State on the relation of Jacob D. Kurtz and others against Charles C. Roth and others, members of the board of public safety of the city of Indianapolis, to restore relators to their positions as policemen of said city, from which they had been dismissed. From a judgment in favor of relators, defendants appeal.

From Floyd Circuit Court; W. C. Utz, Judge. Action by the Gas Light and Coke Company against the city of New Albany for damages for land appropriated for a sewer. From a judgment for defendant, plaintiff' appeals.

From Shelby Circuit Court; Douglas Morris, Judge. Action by Charles E. Taylor against the Indianapolis Street Railroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

<p>Pleading. — Contracts.—When Presumed to he Oral. — Where the complaint in a suit for the specific performance of a contract to convey land is silent as to whether the contract was oral or in writing, it will be presumed to have been oral. p. 284.</p> <p>Frauds, Statute of. — Parol Contract to Convey Land. — Enforcement.— Where a parent makes a parol promise to a child to convey a tract of land if the child will take possession of, reside upon and improve the same, and in reliance upon the promise the child takes possession and makes improvements of a permanent and valuable character, such promise rests upon a valuable consideration; and performance on the part of the child takes the oral contract out of the operation of the statute of frauds, and a court of equity will decree a specific performance of the contract, pp. 284-287.</p> <p>Limitation of Actions. — Parol Contract to Convey Land. — An answer pleading the six years’ statute of limitations in bar of a suit to enforce a parol contract to convey real estate is demurrable, since the only statute applicable is the fifteen years’ statute as provided by §295 Bums 1901. p. 287.</p>

From Madison Superior Court; H. C. Ryan, Judge. Action by Mahlon Gustin and others against John M. Jester and others to recover part of purchase money of real estate which was conveyed to defendants and a portion of the purchase money thereof, payable at death of grantor, bequeathed to plaintiffs.' From a judgment for plaintiffs, defendants appeal. Transferred from the Appellate Court under §1337u Burns 1901.

<p>Partnership. —Accounting. —Demand.—Dissolution.—No demand is necessary before bringing suit for an accounting and settlement between partners, where it is shown that the object for which the copartnership was entered into has been fully accomplished and nothing remains to be done except to divide the assets among the partners, pp. 294, %95.</p> <p>Same. — Conversion of Funds by Partner. — Trusts.—Where a partner without the consent of his copartners applied partnership funds to the payment of his individual debt, in the discharge of a mortgage lien on real estate owned by himself and wife, and afterward conveyed his interest in the property to his wife, who had knowledge of the fraud, such partner is a trustee of the firm for the partnership funds, and the real estate is subject to the trust in favor of the copartners to the extent of their interests in the funds thus converted, pp. 296, 297.</p>

<p>From Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Suit by Charles W. Messmore against William T. Mellott and others to set aside a deed and quiet title and for damages. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Starke Circuit Court; G. W. Beeman, Judge.</p> <p>Action by Adam G. "W. Sherman against Herman Brems on a promissory note. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1837u Burns 1901.</p>

<p>From Lake Superior Court; H. B. Tuthill, Judge.</p> <p>Action by Tonnes M. Thompson against Solomon Recht and others on attachment bonds. From a judgment for defendants, plaintiff appeals. Transferred from the Appellate Court, under §1337u Burns 1901.</p>

From Hendricks Circuit Court; T. J. Cofer, Judge. Jacob Frankel brought suit against the Michigan Mutual Life Insurance Company for renewal commissions alleged to be due under a contract. Thereafter the insurance company brought suit against Frankel for premiums collected by him as agent and’not accounted for. The causes were consolidated and the insurance company’s action pleaded as a set-off and counterclaim to Frankel’s action.

<p>Limitation of Actions. — Mortgages.—Redemption of Real Estate. — A proceeding in equity for the redemption of lands held by the defendant under a sheriff’s deed, absolute on its face, but alleged to be in fact a mortgage or security only for the repayment of a debt, is not barred by the six nor ten years’ statutes of limitations, but is governed by the limitation of "fifteen years, pp. 317, 318.</p> <p>Trial. — Pleading.—Limitation of Actions. — Harmless Error. — A cause will not be reversed because of error of the court in overruling a demurrer to an answer pleading the statute of limitations, where the plaintiffs failed to stand upon the decision, and filed replies to the answers setting up the bar of the statute, and went to trial, and failed to sustain the material allegations of the complaint. ' p. 318.</p> <p>Mortgages. — Execution Sales. — Redemption.—Extension of Time. — The statutory period within which lands sold on execution may be redeemed may be extended by contract without otherwise affecting or impairing the rights of the holder of the certificate of purchase. pp. 318, 319.</p> <p>Same. — Execution Sales. — Redemption.—Extension of Time. — Where a mere agreement is made to extend the time of redemption of real estate sold on execution beyond the statutory period of one year, the extension does not convert the claim of the purchaser into a security which must be enforced in a new action, but the relation of the purchaser to the land remains that of a successful bidder at the sheriff’s sale, with all of the rights secured by such bidder by the statute governing such sales, pp. 318-333.</p> <p>Same. — Execution Sales. — Redemption.—Extension of Time. — Contracts. — Statute of Frauds, — An agreement for an extension of the time of redemption of real estate sold on execution, although, not in writing, nor supported by any consideration other than the 'promise of the redemptioner to pay the amount to become due, with interest, when acted upon by the parties, is not within the statute of frauds, pp. 322, 323.</p> <p>Mortgages. — Redemption. —Contracts.—Action to Redeem. — In an action by execution defendants for the redemption of lands sold on execution, plaintiffs alleged that the purchaser agreed to extend the time of redemption upon the payment to him of the amount of the bid with interest;, that defendant advanced plaintiffs the money to redeem the real estate, and plaintiffs procured the transfer of the certificate of purchase to defendant to be held by him as security, and that immediately thereafter defendant procured a deed to the lands, and claimed to be the owner thereof. There was no evidence that defendant was to hold the certificate as a mere security for a loan and as evidence of a lien upon the land; no note or other evidence of indebtedness was shown to have been executed by plaintiffs to defendant; defendant caused the deed to be recorded, and, without objection by plaintiffs, took possession of the lands and exercised exclusive ownership over the same for fourteen years. Held, that plaintiffs were not entitled, under the evidence, to the relief demanded, pp. 328, 324.</p> <p>Evidence. — Death of Party to Contract. — Testimony by Survivor. — No error was committed in permitting defendant to testify in an action for the redemption of real estate from execution sale concerning an agreement between him and the execution defendants, one of the execution defendants having died, where the testimony of the deceased, given upon a former occasion, was introduced in evidence, pp. 324, 325.</p>

<p>Pleading. — Answer.—Partial Failure of Consideration. — A plea which in general terms alleges no consideration is good, but one which attempts to set up a whole or partial failure of consideration must state facts sufficient to establish such failure, p. 329.</p> <p>Same. — Answer.—An answer in bar, to be good on demurrer, must answer all that it assumes to in the introductory part. p. 329.</p> <p>Bills and Notes. — Notes in Payment of Farm Machinery. — Collateral Agreement. — Answer.—In an action on notes given for farm machinery, an answer alleged in its introductory part that plaintiff ought not to maintain the action, because defendant, before their execution, had purchased the machinery of plaintiff, under an agreement by which he was not to pay therefor unless the machinery did good work. It was further alleged that defendant gave the machinery a trial, and that it failed to do good work; but it was not alleged that it was properly tested, or that its failure was due to defects in its construction. It was further alleged in the answer that thereafter the notes in suit were executed under a special agreement that they were not to be paid until the machinery was made to work properly. Held, that the answer was insufficient as a plea in bar. pp. 326-331.</p>

<p>Appeals. — From Commissioners’ Court. — Jurisdiction of Circuit Court.— On appeals from the county commissioners’ court, the circuit court can only take cognizance of such questions as were properly presented before the commissioners, except so far as the issues there formed may be varied by such amendments as are permissible under the rules of practice, p. 336.</p> <p>Highways. — Free Gravel Roads. — Assessments.—Appeal from Commissioners. — Assessments made by the board of commissioners for free gravel roads are separate and distinct judgments against the several parcels of land assessed, and a successful appeal by some of the parties affected does not vacate the assessments against the lands of those not appealing, p. 886.</p> <p>Same. — Gravel Road. — Assessments.—Conclusiveness.—Where the original petition for a free gravel road is sufficient on its face, and the board of commissioners, after notice to landowners, and without remonstrance by them, adjudges the petition sufficient, such landowners are bound thereby, p. 337.</p> <p>Same. — Assessments for Gravel Road. — Appeal.—Presumption.—Where a part of the landowners assessed for a free gravel road successfully appeal from the confirmation of the assessment, but it appeared that more than half of the total estimated cost had been expended before the appeal was decided, it will be presumed that those not appealing received adequate benefit, pp. 337, 388.</p> <p>Same. — Free Gravel Roads. — Assessments.—Duty of Auditor. — Whereas-. sessments for the construction of free gravel roads have been confirmed by the county commissioners, it is the duty of the county auditor to spread the report upon the record, and to place such assessments, not stayed by judicial process, upon a duplicate for collection, leaving the question of the validity of the assessments to the landowners, pp. 888, 889.</p>

From Jasper Circuit Court; S. P. Thompson, Judge. Benjamin J. Gifford and others, remonstrants, appeal from a judgment confirming the action of the board of county commissioners in granting the petition of Charles W. Baker and others for the construction of a free gravel road.

<p>From Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Action by William Erdel and others against the Terre Haute and Logansport Railroad Company to recover the costs of constructing a fence along defendant’s right of way. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Mandamus by State on the relation of Robert B. Dreibelbiss, against Henry C. Berghoff, mayor of the city of Ft. Wayne. From a judgment in favor of respondent, relator appeals.</p>

<p>From Washington Circuit Court; T. B. Buskirk, Judge.</p> <p>Action by the town of Fredericksburg against Charles Wilcoxen to recover a penalty for the violation of a town ordinance. From a judgment dismissing the action, plaintiff appeals.</p>

From Noble Circuit Court; J. W. Adair, Judge. Suit by Barbetta Kaufman and others against Lucelia Preston and others to quiet title. From a judgment for defendants, plaintiffs appeal. Transferred from the Appellate Court, under §1337u Burns 1901.

<p>Quieting Title. — Complaint.—A complaint to quiet title alleging that plaintiff is the owner in fee simple and entitled to the possession of the real estate, and that defendant is claiming title thereto, and a right to the possession thereof, which claim is without right, and unfounded, and casts a cloud upon plaintiff’s title, is sufficient, under §1082 Bums 1901, although it is not averred that the title claimed by defendant is adverse to the title claimed by plaintiff, pp. 365, 366.</p> <p>Trial . — Exception.—Offer to Prove. — Appeal and Error. — No question is presented on appeal on the exclusion of testimony where the offer to prove was not made until after the ruling and exception. p. 366.</p> <p>Quieting Title. — Adverse Possession. — Evidence.—Where in an action for possession, and to quiet title, it appeared that defendant, while the owner of the real estate, executed a mortgage thereon to plaintiff, which mortgage was duly foreclosed and the property purchased by plaintiff, and, after the expiration of the year of redemption, a sheriff’s deed executed to plaintiff, and thereafter defendant unsuccessfully prosecuted an action to set aside the sale and conveyance, alleging ownership of the land, and, in the action to quiet title, appeared and filed an answer in general denial and a cross-complaint asserting ownership and right of possession against plaintiff, no direct proof was necessary that defendant was claiming title or interest in the land adverse to plaintiff. p. 367.</p> <p>Quieting Title. — Execution Sale. — Possession.—When a purchaser of land at a sheriff’s sale obtains his deed therefor he is entitled to the immediate possession, and the act of the former owner in withholding it from him is unlawful, p. 367.</p>

From Huntington. Circuit Court; J. C. Branyan, Judge. Chester Carpenter was charged with being a transient merchant, without license. Prom a judgment quashing the affidavit and information, the State appeals.

From Grant Superior Court; Hiram Brownlee, Judge Action by Abraham Zimmerman against John E. Weigel for a new trial on the ground of evidence discovered after the term at which final judgment in the main action was rendered. From a judgment on demurrer to the complaint, the complainant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Wells Circuit Court; H. B. Shively, Special Judge. Suit by James M. Peele against the Ohio and Indiana Oil Company and others to have a sale made by the assignee of the Upland Oil and Gas Company set aside. From a judgment in favor of defendants, plaintiff appeals.

From Fountain Circuit Court; J. M. Rabb, Judge. Habeas corpus by Robert N. Voliva, guardian of Flora Moffitt, against Orange Palin and another, to obtain the custody of his ward. From a judgment for plaintiff, defendants appeal.

From Lake Superior Court; H. B. Tuthill, Judge. Action by Mary E. Miller and another against Jonas M. Lautman for possession of real estate. From a judgment for plaintiffs, defendant appeals. Transferred from the Appellate Court, under §1337u Burns 1901.

From Kosciusko Circuit Court; H. B. Shively, Special Judge. Suit by Jacob Wine against Thomas Woods, administrator of the estate of Daniel Shoup, deceased, for breach of covenants of warranty in a deed executed by decedent to plaintiff to certain lands in Wisconsin. . From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court, under §1837u Burns 1901.

<p>From Adams Circuit Court; R. R. Heller, Judge.</p> <p>Action by Richard B. Maitlen against the Vernon Insurance and Trust Company on an insurance policy. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Action by James B. Clow and others against John S. Brown and others, directors of a corporation to enforce a personal liability against defendants as such directors under the provisions of the statute. From a judgment for plaintiffs, defendants appeal.</p>

From Miami Circuit Court; C. W. Watkins, Special Judge. Action by Joseph A. Lesh and others against the Chicago & Erie Railroad Company for damages from fire escaping from right of way. From a judgment for plaintiffs, defendant appeals. Transferred from the Appellate Court, under §1337u Burns 1901.

<p>From Marion Superior Court; J. M. Leathers, Judge.</p> <p>Action by Charles F. Smith against the Indianapolis Street Railway Company.. From a judgment for defendant, plaintiff appeals.</p>

From Posey Circuit Court; O. M. Welborn, Judge. Suit by Ezra Stephens, administrator of the estate of Celeste S. Murphy, deceased, against Julius C. Miller-and others, executors of the will of Edward Murphy, deceased, to set aside an alleged election by Celeste S. Murphy, deceased, to take under the will of her deceased husband, Edward Murphy. From a judgment for plaintiff, defendants appeal.

<p>Drains. — Appeal. — Transcript. — Appeal and Error. — Record.—Where the transcript of the proceedings on appeal from an order of the board of county commissioners establishing a drain contains only the proceedings of the board had after the cause was remanded « from a former appeal, and does not show that any petition for drainage, or remonstrance against the same, was ever filed, or that any viewers were ever appointed or made any report, a transcript of the former appeal showing the petition, remonstrance, appointment of viewers, and their report, is improperly included in the record in an appeal to the Supreme Court from a judgment of the circuit court dismissing the last appeal, and the same cannot be considered by the Supreme Court in determining whether the court below erred in dismissing the last appeal.</p>

<p>From Marshall Circuit Court; C. P. Drummond, Special Judge.</p> <p>Action on note by Prank L. Wagner, administrator of the estate of Jane Brunk, deceased, against Edward Toner and another. Prom a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court, under §1837u Burns 1901.</p>

<p>From Kosciusko Circuit Court; H. S. Biggs, Judge.</p> <p>From the decision of Morton Gillespie, county surveyor, making an allotment for the repair of a public drain, the Pittsburgh, Ft. Wayne and Chicago Railway Company appealed to the circuit court, and from its decision appeals. Transferred to Supreme Court, under §1337u Burns 1901.</p>

From Clay Circuit Court; S. M. McGregor, Judge. Action by Josephine Thomas against the Prudential Insurance Company on a life insurance policy. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>From Monroe Circuit Court; W. H. Martin, Judge.</p> <p>Suit by William J. Allen against Norman McGee and others to quiet title. From a judgment in favor of defendants, plaintiff appeals.</p>

From Kosciusko Circuit Court; II. S. Biggs, Judge. Action by Jordan E. Gibson against the board of commissioners of Fulton county for extra work performed and material furnished in the construction of a courthouse. From a judgment for plaintiff, defendant appeals.

From Tippecanoe Superior Court; W. D. Wallace, Judge. Action by Lewis C. Merrett and others against Lucinda Ritter to quiet title. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1387u Burns 1901.

From Hamilton Circuit Court; J, F. Neal, Judge. Action by Lewis F. Morford against the Chicago, Indianapolis and Louisville Railway Company for damages. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court, under §1337u Burns 1901.

From Hancock Circuit Court; C. G. Offutt, Judge. Action to quiet title by Emma Hays against Joseph W. Pugh, trustee for the benefit of the creditors of Samuel Cassell, and others. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court, under §1337u Burns 1901.

From Steuben Circuit Court; E. D. Hartman, Judge. Action by Cora B. Noyes and another against the Modern Woodmen of America on an insurance policy. From a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Adams Circuit Court; D. D. Heller, Judge. Suit by the International Building and Loan Association against Augusta M. Watson and husband to foreclose a mortgage. From a judgment in favor of defendants, plaintiff appeals.

From Boone Circuit Court; B. S. Higgins, Judge. Mandamus by the State on the relation of James A. Ball against the Indiana Natural and Illuminating Gas Company, to compel defendant to supply relator with gas on the basis of an annual or monthly rental instead of a meter rate. Prom a judgment for relator, respondent appeals.

From Montgomery Circuit Court; Jere West, Judge. Action by James E. Hoover against Edward Patton and another for damages for personal injuries. From a judgment for defendants, plaintiff appeals. Transferred from the Appellate Court, under §1337u Burns 1901.

From Pulaski Circuit Court; G. W. Beeman, Judge. Action by John W. Fish against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to foreclose lien for street improvements. From a judgment for plaintiff, defendant appeals.

From Wabash Circuit Court; H. B. Shively, Judge. Action by the Board of Commissioners of Whitley county against John Gross, a former county treasurer, to recover fees alleged to have been illegally paid to him by the county. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Delaware Circuit Court; J. G. Leffler, Judge. Action by the Stone-Ordean Wells Company against the Magic Packing Company and Magic City Canning Company for damages for the breach of a contract. Prom a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court, under §1337u Burns 1901.

From Marion Circuit Court; H. C. Allen, Judge. Mandamus by State on the relation of Martha Lewis and others against Harry B. Smith, auditor of Marion county, to compel such auditor to allow a' deduction from the assessed valuation of relators’ real estate on account of a mortgage indebtedness thereon. From a judgment in favor of respondent on demurrer to alternative writ, relators appeal.

From Hancock Circuit Court; E. W. Felt, Judge. From a judgment affirming an order of the hoard of. county commissioners refusing the application of John M. Ludwig for a license to sell intoxicating liquors, the applicant appeals. Transferred to Supreme Court, under §1337u Burns 1901.

From Tipton Circuit Court; J. F. Elliott, Special Judge. Suit by William R. Oglebay and others against Lemuel S. Todd and others to enjoin the sale of certain real estate on a decree of foreclosure, and to quiet title. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

From Jasper Circuit Court; J. S. Lairy, Special Judge. Action by Addie Kline against Charles M. Kline for damages resulting from an assault. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1837u Burns 1901.

<p>From Clay Circuit Court; S. M. McGregor, Judge.</p> <p>Action by Samuel Polland against the D. H. Davis Coal Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Railroads. —Passenger Pvt Off at Wrong Point. — Trespasser.—Complaint. — In an action against an electric railroad company, the complaint alleged that plaintiff, being a passenger on defendant’s road, with the route of which he was not familiar, told the conductor where he desired to get off, and, relying upon the information received from the conductor, got off at the wrong point; that not knowing any other way to reach his destination, he started on foot along defendant’s right of way; that while proceeding with due care, he “struck his foot against a stake that defendant’s agents or employes had carelessly and negligently left sticking above the ground,” and was injured, and that plaintiff’s injury was ‘ ‘ wholly from the aforesaid carelessness. ’ ’ Held, that, since the complaint did not aver that plaintiff was wrongfully put off the car, it based the action upon the negligent obstruction of the road, and was not sufficient to withstand a demurrer.</p>

From Hamilton Circuit Court; E. A. Brown, Special Judge. Action by Charlotta Downbam and others against Levi Holloway for partition of real estate and to quiet title. From a judgment for defendant, plaintiffs appeal. Transferred from the Appellate Court, under §1337u Burns 1901.

From Sullivan Circuit Court; W. W. Moffett, Judge. Suit by Della Stone against Edgar B. Stone for divorce. From an order refusing to modify the decree, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Marion Superior Court; J. L. McMaster, Judge. Action by Edward C. Roberts against the Indianapolis Street Railway Company for personal injuries. From a judgment for defendant on demurrer to complaint, plaintiff appeals. Transferred to Supreme Court, under §1337u Burns 1901.

From Marshall Circuit Court; A. C. Capron, Judge. Suit by Julia E. Work against Charles C. Vink, treasurer of Marshall county, to enjoin the collection of taxes on certain property claimed by plaintiff as exempt from taxation. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Executors and Administrators* — Funeral Expenses of Decedent.— Tombstone. — The reasonable and necessary cost of a tombstone or monument placed at the grave of a deceased person may be classed as a part of the funeral expenses, and paid for by the administrator out of the funds of the estate.</p>

<p>From Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Claims by Mary E. H. Jones and sisters against the estate of Daniel G. Jones, deceased. From a judgment allowing the claims, Thomas W. Masters, executor, appeals. Transferred to Supreme Court, under §1337u Burns 1901.</p>

<p>Pleading. — Conditions Precedent. — The rules of code pleading permit a party to show performance of conditions precedent by specific averments as well as by a general allegation, p. 655.</p> <p>Sale. — Breach of Warranty. — Answer.—In an action on a note given for machinery, an answer setting up a warranty is not bad because it shows that defendant continued to use the machine after time given for trial, where it is expressly averred that such use was authorized by the sellers, p. 656.</p> <p>Same. — Breach of Warranty. — Answer.—In an action on a note for machinery, an averment in an answer setting up a breach of warranty, that on account of the defects the machine was not worth more than $400, which amount had been paid on account of its purchase, is a sufficient averment as to the damages sustained, p. 656.</p> <p>Same. — Contract of Sale. — Conditions '. — Presumptions.—In a contract for the sale of machinery, the stipulations that the makers of the notes to be given in payment would give a mortgage on delivery, and pay the freight to the place of delivery, must be presumed to have been waived by the sellers, or complied with by the makers of the notes, p. 656.</p> <p>Same. — Conditional Sale. — .Retention of Property by Purchaser. — The retention of a machine purchased with warranty after it was found to be defective and after attempted repairs by the seller will not bind the purchaser, where the purchaser acted upon the request of the seller’s agent, who promised that it should be made to work. pp. 657, 658.</p>

From Marion Circuit Court; George W. Grubbs, Special Judge. Suit by James B. Heywood, trustee, for himself and others against Leander A. Fulmer and others to enjoin defendants from removing sand and gravel from certain described premises. From a judgment for defendants, plaintiff appeals.

<p>From Howard Superior Court; H. Brownlee, Judge.</p> <p>Action by Th.om.as O. McCoy against the Kokomo Railway and Light Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Appeal and Error. — Transcript.—Precipe.—Appellant directed the clerk by precipe to prepare a transcript of certain papers and entries, not including the original bill of exceptions containing the evidence, and the general certificate of the clerk did not refer to such original bill, nor did the transcript show a filing thereof. Held, that the evidence was not in the record, though what purported to be the original bill of exceptions containing the evidence was embodied in the transcript.</p>

<p>From Vermillion Circuit Court; A. F. White, Judge.</p> <p>Action by Robert R..Ditto against the Indiana, Decatur & Western Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Wills. — Contest. — Complaint. —Jurisdiction.—Presumption.—Where a complaint, in an action to contest a will, is filed in a circuit court of any county of this State, and the court proceeds to hear and determine the cause, it will be presumed, in the absence of any showing to the contrary, that the court found either that the testator died in the county in which the suit was brought, or that some part of his estate was situated therein, whether the complaint contains such averments or not.</p>

From Tippecanoe Superior Court; W. D. Wallace, Judge. Suit by Nicholas S. Reifers against Charles E. Rinehardt and others to foreclose a mortgage. From a decree for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

From Clay Circuit Court; P. O. Colliver, Judge. Application for mandamus by State on the relation of the board of county commissioners, against Volney T. Malott, as receiver. From a judgment for relator, respondent appeals.

<p>Insurance. — Examination by Auditor of State. — Statutes.—Title.—Constitutional Law. — Section 3 of the act of 1899 (Acts 1899, p. 220), authorizing the Auditor of State to examine every detail of the business of any special charter company transacting insurance business in this State is void for the reason that the subject-matter thereof is not properly embraced in the title of the act within the meaning of §19, article 4, of the Constitution, pp. 682-685.</p> <p>Same. — Examination by Auditor of State. — Statutes.—Title.—The provision of §4925 Burns 1901 giving the Auditor of State authority to examine “every detail of the business of any company transacting business of insurance in this State,” etc., applies to foreign insurance companies only, since said section is amendatory or supplemental to the act of 1865 (Acts 1865, s. s., p. 105), regulating foreign insurance companies doing business in this State, pp. 685, 686.</p> <p>Mandamus. — Writ Including Improper Relief. — A writ of mandate commanding an insurance company to file annual reports in the office of Auditor of State, and submit to an examination by the Auditor of State, the latter requirement being without authority of law, was properly quashed as a whole, pp. 686, 687.</p>

<p>Courts. — Adjourned Term. — Special Judge. — Holding Court in Two Counties in Circuit at Same Time. — Where business of the court remains undisposed of at the close of the term, an adjourned term at which a special judge presides may be held and lawfully continued after the commencement of a regular term in another county of the same circuit, pp. 691-693.</p> <p>Trial. — Motion for New Trial. — Argument of Motion. — The fixing of the time and limit of the argument on a motion for a new trial is a matter within the discretion of the trial court, p. 693.</p> <p>Criminal Law. — Coram Nobis. — Ho error was committed in refusing to award a writ of coram nobis in a criminal cause on the ground that defendant was constrained by threats and fears to forego rights which the law secured to him in his defense, where it is shown that defendant was arraigned and pleaded not guilty; asked and was granted a continuance; demanded and obtained a special venire for jurors; challenged the fitness of the regular judge to preside upon his trial and secured the appointment of a special judge; and at no time was there any attempt by any one to interfere with the regular and orderly proceedings of the court. pp. 694-696.</p> <p>Same. — Coram Nobis. — A petition for a writ of coram nobis in a criminal cause was properly denied where it is not charged therein that the jury was not composed of impartial and disinterested triers, or that they were improperly influenced by their alleged surroundings, or that their verdict was not responsive to, and sustained by, the evidence, p. 696.</p> <p>Same. — Coram Nobis. — The proceeding in the nature of a writ of coram nobis will not be granted in a criminal cause after trial and conviction, except where it clearly appears that the petitioner had a valid defense, but which, without negligence on his part, was not made because of duress, fraud, or excusable mistake, or that he was prevented from asserting and enjoying some legal right through duress or fraud or excusable mistake, p. 696.</p> <p>Criminal Law. — Continuance.—In a prosecution for murder defendant asked for a continuance for the reason that because of his mental condition, impaired health, and the effects of a self-inflicted wound, he failed to realize the gravity of the situation in which he stood, and did not employ counsel until about two weeks before the time the cause was set for trial; that the attorney appointed by the court to defend him was young and inexperienced in criminal causes; that the attorney employed by him was so engaged in other professional business that he had no time to consult with defendant, and was weak and sick and threatened with nervous prostration. Held, that no abuse of discretion was shown in the denial of a continuance, pp. 696-698.</p> <p>Same. — Arraignment.—Where defendant in a criminal prosecution was arraigned and pleaded not guilty, the subsequent withdrawal of the plea for the purpose of making a motion to quash the indictment did not render it necessary to arraign the defendant a second time. p. 698.</p> <p>Same. — Evidence.—Where in the trial of one charged with the murder of his son-in-law it appeared that defendant and his wife had separated, and the wife and a daughter, to whom defendant had sent some articles of food, were making their home with such son-in-law, the testimony of a witness relative to a statement made by defendant to the effect that he had furnished “grub” for his children, and that there were persons laying around eating it up, and that some “sons-of-bitches that walked the road that he could hardly stand,” and slapped his hand on his pocket and said he “had the tools there to stop it with,” was competent as tending to show the state of defendant’s feelings toward his.son-in-law. p. 698.</p> <p>Same. — Evidence.—Defense of Insanity. — Expert Testimony. — A question and answer on the issue of insanity in a criminal cause: “You may state as to whether or not the scientific idea of insanity draws the line closer than the legal idea of insanity, ’ ’ to which the witness answered: “That is possibly the case, I would not say — well, the courts and doctors don’t agree as to the definition of insanity, ” were harmless, p.699.</p> <p>Same. — Evidence.-—Defense of Insanity. — Expert Testimony. — The testimony of a medical witness, in answer to a hypothetical question based upon a declaration made by defendant in the form of a threat, that the language used indicated a feeling of ill will grounded upon an actual condition of things, and not a mere illusion, and an intelligent purpose to injure the persons described in the question was proper, since statements made, whether written or spoken, may afford some basis for an opinion concerning the sanity or insanity of the person at the time it was used. p. 699.</p> <p>Criminal Law. — Evidence.—Defense of Insanity. — Expert Testimony.— For the purpose of ascertaining the peculiar and extreme views of a medical witness on the subject of insanity, a question eliciting the opinion of the witness regarding the sanity of a notorious assassin at the time he took the life of a public officer was within the legitimate bounds of cross-examination, p. 699.</p> <p>Same. — Evidence.—Defense of Insanity. — Non-Expert Witness. — Cross-Examination. — The refusal of the court to permit defendant, in a criminal prosecution, to ask a non-expert witness, who had testified as to the sanity of defendant, for a definition of the word “mind,” was not error, p. 699.</p> <p>Same. — Evidence.—defense of Insanity. — Expert Witness. — Confidential Relations. — Physician and Patient. — The testimony of a medical witness as to the sanity of defendant was not rendered incompetent by reason of the fact that the witness was the defendant’s physician, where the facts upon which the opinion was based were not obtained through his professional relations to defendant, p. 699.</p> <p>Same. — Motive.—Instruction.—An instruction in a prosecution for murder to the effect that proof of a motive to commit the crime is not indispensable nor essential to a conviction, and that the jury would be justified in inferring a motive from the commission of the crime itself, if the commission of the crime by defendant is proved beyond a reasonable doubt, as required by law, states the law correctly, and is not an invasion of the province of the jury. p. 700.</p> <p>Same. — Defense of Insanity. — Instructions.—Reasonable Doubt. — Where in a prosecution for murder the court instructed the jury that a motive might be inferred if the commission of the crime by defendant was proved beyond a reasonable doubt, and that defendant was sane at the time, it was not necessary to repeat the statement made in other instructions on the question of, reasonable doubt as to the sanity of the defendant, p. 700.</p> <p>Same. — Murder.—Evidence.—Defense of Insanity. — Defendant was jealous of his wife, without cause, and, after repeated separations, he became so abusive that she obtained a divorce and went to live with their son-in-law. Defendant accused the son-in-law and his wife of separating him and his wife. He procured a revolver from a neighbor, and, the next day, went to the home of the son-in-law and inquired of his divorced wife where his son-in-law was, and, upon being informed that he was in the field at work, asked if he was alone. He was told that he was alone, and started toward the field. He came back in a short time and told his daughter that her husband told him to have her bring him a jug of water. He told his other daughter to go to the garden and dig some potatoes. As soon as the daughters were gone he made a violent attack on his wife. The screams of the woman attracted the daughter from the garden, and she saw the son-in-law approaching, crying to his wife, “Oh, Oma! I don’t believe I can live till I get to the house. ” Defendant seized an ax and started toward his son-in-law, who cried, “Don’t kill me, please don’t kill me.” Defendant struck him with the ax, knocking him down, and then struck him another blow, almost severing his head from his body. When the body was examined three gunshot wounds were found in addition to those made with the ax. Defendant told his brother-in-law what he had done, and attempted to commit suicide. His only defense was insanity, which was very meager, it being shown that he had lived, worked, acted and talked as a sane man for more than thirty years immediately preceding the homicide. Held, that the evidence was sufficient to support a verdict convicting defendant of murder in the first degree, pp. 708-706.</p>

<p>From Fountain Circuit Court; J. M. Rabb, Judge.</p> <p>Action by State against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company to recover penalties. Transferred from Appellate Court, under §1337u Burns 1901.</p>