Volume 29 — Indiana Appellate Court Reports

Prom Putnam Circuit Court; S. M. McGregor, Judge. Action by John A. Wells against the Eureka Block Coal Company for damages for personal injuries sustained in a coal mine. Prom a judgment for plaintifí’, defendant appeals.

From Oass Circuit Court; I). H. Chase, Judge. Action by James Mann and others against the town of Rochester for breach of contract for the construction of a system of water-works. From a judgment for defendant, plaintiffs appeal.

<p>Erom Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Action by Ezra Batson against the town of Lewisville for personal injuries. Erom a judgment for plaintiff, defendant appeals.</p>

From Tippecanoe Circuit Court; W. C. L. Taylor, Judge. Action by Mary A. Jacobs, administratrix of tbe estate of Sarab A. Cloyd, deceased, against Frances L. Jolley, to recover certain assets of tbe estate in tbe possession of defendant in which tbe latter asserted ownership by gift. From a judgment for defendant, plaintiff appeals.

From Vanderburgh Superior Court; J. H. Foster, Judge. Action by Mary E. Christy against .the city of Evansville for damages for personal injuries sustained because of a defective sidewalk. From a judgment for plaintiff, defendant appeals.

From Marion Superior Court; J. L. Me Master, Judge. Action by William E. Mick and others against Harry Bowser for commission for the sale of real estate. From a judgment for plaintiffs, defendant appeals.

<p>From Lawrence Circuit Court; W. H. Martin, Judge.</p> <p>Action by Mary Moore against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Erom Warren Circuit Court; J. M. Rabb, Judge. Suit by John Mankey against the board of commissioners of Warren county and others. Erom a decree for plaintiff, defendants appeal.

From Marion Superior Court; Vinson Carter, Judge. Action by Royal Robinson against the Indiana Bermudez Asphalt Company for commission for the sale of property. From a judgment for plaintiff, defendant appeals.

<p>Master and Servant. — Action by Employe Against Contractor. — Personal Injuries. — Complaint.—In an action by one employed by a contractor in the erection of a building, the complaint alleged that plaintiff was ordered to leave his work on the ground floor and go to the third floor and wheel brick from the hoist along the temporary flooring to the second, temporary flooring which extended around the walls; that he pushed the wheelbarrow ahead of him, so that his view of the flooring was partially cut off; that the wheelbarrow struck a brick which had not been seen by plaintiff, and caused plaintiff to lose his balance and fall. The complaint did not aver that the brick was placed on the floor by defendant or that defendant knew it was there, and it was apparent that plaintiff had passed by. the brick four times before running against it. Held, that the complaint did not state a cause of action, pp. 6S-65.</p> <p>Same. — Wilfulness.—Complaint.—A complaint by an employe for a wilful injury averred that defendant had full knowledge of the dangerous character of the place where he was required to work, ‘ 'and that, notwithstanding such knowledge, the defendant, in reckless disregard of human life, and with the wilful intent to injure such person as should undertake such employment, failed and refused to place proper guards” so as to protect plaintiff. Held, that the complaint was not sufficient to withstand a demurrer, pp. 65-67.</p>

Prom Wells Circuit Court; J. W. Headington, Special Judge. Suit by Absalom W. Boyd and others against Peter Schott and others to quiet title to a gas and oil lease and recover possession thereof. Prom a judgment for defendants on cross-complaint, plaintiffs appeal.

From Fountain Circuit Court; J. M. Babb, Judge. Action by Ellen Sheridan against James A. Pritchett and wife on a promissory note, and to foreclose a mortgage. From a judgment for plaintiff, defendants appeal.

From Lawrence Circuit Court; W. H. Martin, Judge. Action by Henry Thomas against the Bedford Quarries Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

From Clark Circuit Court; J. K. Marsh, Judge. Action by the New Albany Manufacturing Company against Oscar R. Sulzer on promissory notes and on account, and in attachment. From a judgment for defendant, plaintiff appeals.

<p>Husband and Wipe. — Mortgage of Wife’s Lands. '-Death of Wife.— Husband’s Interest. — Judicial Sale. — Partition.—Where a husband joined his wife in the execution of a mortgage on her land in which he expressly agreed to pay the sum of money thereby secured, and was made a party to a proceeding by her administrator for the sale of the land to pay the mortgage debt, and other liens, he is precluded from afterward claiming, in a partition proceeding, that the probate court had no jurisdiction to sell all of the land thus mortgaged.</p>

From Carroll Circuit Court; T. F. Palmer, Judge. Action by Martha M. Eeed against the Chicago, Indianapolis & Louisville Bailway Company for damages for injuries sustained at a railroad and highway crossing. From a judgment for plaintiff, defendant appeals.

From Blackford Gircuit Court; TI. C. Vaughn, Judge. Action by John F. Kellner against Granville Phillips and others on an assignment of a street improvement contract. From a judgment for defendants, plaintiff appeals.

From Allen Superior Court; J. II. Aiken, Judge. . Suit’ by Aaron ET. Dukes against Charles S. Bash and others to enforce the specific performance of a contract. From a judgment for defendants, plaintiff appeals.

From Whitley Circuit Court; J. W. Adair, Judge. Action by William J. .EL Probasco, administrator de bonis non of tbe estate of Aaron C. Probasco, deceased, against the Michigan Trust Company, executor of the will of Lucina Probasco, deceased, and others, for the recovery of property in possession of defendant alleged to belong to plaintiff’s estate and which defendant’s decedent as former executor had failed to administer upon.

Prom Laporte Circuit Court; J. G. Richter, Judge. Action by Jeremiah H. Ridgeway against Edward TTannum to recover the value of wheat grown upon plaintiff’s land. Prom a judgment for defendant, plaintiff appeals.

From Fayette Circuit Court; F. S. Swift, Judge. Action by James I. Dehaven against- James C. Mount, administrator of the estate of Theodore L. Griffis, deceased, on a claim based upon certain promissory notes. From a judgment for plaintiff, defendant appeals.

<p>Bills and Notes. — Alteration of Instruments. — Changing a note payable generally by making it payable at a bank, in this State constitutes a material alteration, p. 133.</p> <p>Same. — Alteration of Instruments. — Bona Fide Holder. — The material unauthorized alteration of a promissory note renders it invalid in the hands of a Iona fide holder as well as in the hands of the original payee, p. 138.</p> <p>Same. — Alteration of Instruments. — Bona Fide Holder. — Where a note executed without any agreement as to where it should be paid, contained blank spaces after the words “payable at” and “bank,” and contained a clause waiving presentment and notice, the insertion of the name and location of a bank in the blank spaces by the payee, without authority from the makers, constituted a material alteration, and rendered the note invalid in the hands of a bona fide holder, pp. 133-138.</p> <p>Same. — Alteration.—Assignment.—Notice.—Pleading.—Where in an action on a note the defendant filed an answer of non est factum on the ground that a material alteration was made in the note after its execution, an averment in the complaint “that after-wards, before the maturity of said note and for a valuable consideration’ ’ the payees assigned the note to plaintiff by an indorsement thereon in writing, is not equivalent to an averment that plaintiff had no notice of the alteration, pp. 138) 139.</p>

From Jackson Circuit Court; Ralph Applewhite, Special Judge. George H. Furgeson made application for a license to' sell intoxicating liquors to which a remonstrance was filed. The board refused the license and the applicant appealed. From a judgment reversing the order, E. T. White and others, remonstrants, appeal.

From Grant Circuit Court; H. J. Paulus, Judge. Suit by John Corey against John H. Forrest and others for the enforcement of a laborer’s lien. From a judgment for plaintiff, defendants appeal.

From Porter Circuit Court; J. H. Gillett, Judge. Action by Albert Lewis against tbe Lake Lighting Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

<p>Erom Vanderburgh. Superior Court; J. H. Foster, Judge.</p> <p>Action by Peter Yierling against Charles Leich for an accounting. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Infants. — Appointment of Agent. — Negligence of Agent. — An infant can not appoint an agent and thereby render herself liable for his negligent acts, and the fact that the infant was at the time married does not change the rulé. pp. 183, I84.</p> <p>Trial. — Directing Verdict. — Where the evidence introduced wholly fails to make out a case for plaintiff, it is the duty of the court to direct a verdict for defendant, p. 184.</p> <p>Appeal and Error. — Harmless Error. — The action of the court in refusing evidence offered in behalf of plaintiff was harmless, where under the whole evidence, including that refused, plaintiff was not entitled to recover, p. 185.</p>

Erom Marion Superior Court; J. M. Leathers, Judge. Action by Edward E. Brown against the Citizens Street Eailroad Company for damages for personal injuries. Erom a judgment for plaintiff, defendant appeals,

Erom Morgan Circuit Court; M. Ii. Parks, Judge. Action by Hiram J. Hinson against the board of commissioners of Morgan county to recover the expense of the burial of a Union soldier. Erom a judgment for plaintiff, defendant appeals.

From Daviess Circuit Court; J. T. Rodgers, Special Judge. Action by Alexander Killion against Owen O. Booker and others in ejeotment and to recover possession of real estate. From a judgment for plaintiff, defendants appeal.

<p>From Allen Circuit Court; JE. O’Rourke, Judge.</p> <p>Action by Julius C. Horton against the Phoenix Accident and Sick Benefit Association on a policy of insurance. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Jay Circuit Court; J. M. Smith, Judge.</p> <p>Action by town of Redkey against Daniel Wilt to recover a balance received by defendant from the sale of bonds. Erom a judgment for plaintiff', defendant appeals.</p>

<p>Judgment. — Proceedings In Fieri. — Where a verdict was returned at the January term of court and a motion for a new trial filed at the same term, and overruled at the March term, a judgment rendered at the September term is not invalid, since the proceedings were in fieri until judgment was rendered, and it will be presumed, in the absence of some showing to the contrary, that the cause was regularly continued until such time. pp. SOS, S04.</p> <p>Appeal and Error. — Joint Assignment. — Instructions.—An assignment in a motion for a new trial that the court erred in giving a series of instructions is not available unless all of the instructions specified are erroneous, p. S04.</p> <p>Equitable Estoppel. — Pleading.—In an action for rental of certain personal property, an answer[alleging that defendant purchased the interest in the property claimed by plaintiff, from a third person, who had possession thereof for more than a year prior to the purchase, and that plaintiff immediately before the time of the purchase, and at divers times prior thereto, represented and said in the presence of defendant that such third person was the owner of the property, pleads an equitable estoppel, although it is not expressly alleged therein that plaintiff had actual knowledge of the facts, nor that the representations were made with the intention that defendant should act upon them. pp. SO4-SO6.</p>

From Marshall'Circuit Court; A. C. Capron, Judge. Action by James H. Matchett against the makers of certain promissory notes and the Anderson Foundry and Machine Works as indorser. From a judgment in favor of the indorser, plaintiff appeals.

<p>Mortgages. — Foreclosure.—Purchase by Mortgagee. — Notice of Irregularities. — A mortgagee purchasing at his own foreclosure sale takes with full notice of any and all irregularities in the proceedings. pp. 214, 215.</p> <p>Sheriff’s Deed. — Reformation.—A sheriff’s deed cannot he reformed, since there is hut one party concerned in the making of such a deed, and consequently there can he no mutual mistake, p. 215.</p> <p>Same. — Incomplete Description. — A mortgage, foreclosure decree, and order of sale contained a correct description of the mortgaged premises. The sheriff’s certificate described the premises as “commencing at the northeast corner of the west half of the northeast quarter of section thirty-five, thence south twenty-nine and ninety-eight hundredths chains, thence west parallel with the north line of said west half fourteen and .forty hundredths chains to the west boundary of said tract of land, thence north along the said boundary line twenty-nine and ninety-eight hundredths chains to the place of beginning.” Held, that the description is sufficient, since to make it complete it is only necessary to read into it the word “thence” before the words “to the place of beginning. ’ ’ pp. 212-%16.</p>

Erom Clinton Circuit Court; J. V. Kent, Judge. Action by John E. Knauss against tbe Lake Erie and Western Railroad Company for damages for tbe death of bis infant son. From a judgment for defendant on demurrer to tbe complaint, plaintiff appeals.

From Wayne Circuit Court; L.D. Stubbs, Special Judge. Action by Solomon Miller against George R. Hart as guardian of Samuel Hart, a person of unsound mind, for the care of such ward. From a judgment for plaintiff, defendant appeals.

<p>Husband and Wipe. — Action for Support. — Evidence.—Judgment.—Inan action by a wife for support the evidence showed that the defendant had deserted plaintiff, and prior to the desertion had assaulted her; that defendant was the owner of an estate, was able-bodied and was earning wages. Held, that a judgment against the defendant for $50 payable in monthly instalments of $5 each was sustained.</p>

<p>From Lake Superior Court; J. F. G-allaher, Special Judge.</p> <p>Action by Leo Pohlplatz against the Corning Steel Company for personal injuries. From a judgment for plaintiff, defendant appeals.</p>

From Parke Circuit Court; A. F. White, Judge. Action by the Attica Bridge and Machine Works against John Johnson and others for balance due on purchase price of bridges. From a judgment for defendant, plaintiff appeals.

From Eush Circuit Court; Douglas Morris, Judge. Proceeding by Armilda J. Patterson against the Gowdy Gas Well, Oil and Mineral Water Company and others to enforce her rights as a stockholder. From a judgment for plaintiff, defendants appeal.

From Huntington Circuit Court; J. JE. Cox, Special Judge. Suit by Nettie M. Townsend against the City of Huntington to quiet title to a strip of land claimed by defendant as a part of a street. From a judgment for plaintiff, defendant appeals.

Erom Marion Superior Court; J. M. Leathers, Judge. Action by John W. Pierson against William E. Reynolds for damages resulting from a constructive assault. Erom a judgment for plaintiff, defendant appeals.

. Erom Allen Circuit Court; E. O’Rourke, Judge. Suit by Eobert Mercer, guardian of Phoebe C. Van Horn, against James Van Horn and others for breach of contract to support ward, and to set aside a deed of conveyance. Erom a judgment for plaintiff, defendants appeal.

<p>From Greene Circuit Court; TP. W. Moffett, Judge.</p> <p>Action by Ira I. "Walker against the Pennsylvania Company for damages. From a judgment for plaintiff, defendant appeals.</p>

<p>Pkinoipal and Agent. — Sales. — Replevin. —Evidence. —Plaintiff brought suit to replevin a set of law reports which he had left in the office of an attorney. The evidence showed that plaintiff stated to the attorney with whom he left the books that if he should find a prospective buyer to notify him by letter and he would name a price, and that he did in a letter to the attorney name a price. A student in the office sold the books to defendant at a price less than that named by plaintiff, claiming that he was authorized by the attorney to sell the books at a higher price, but that the attorney was indebted to him for money borrowed, and he made up the difference in order to collect his debt. The attorney denied that he told the student to sell the books. Held, that the evidence was insufficient to sustain a verdict for defendant, pp. $87-291.</p> <p>Same. — Appointment of Subagent. — The appointment of a subagent by an agent is not binding upon the principal unless authorized expressly or by implication, or afterwards ratified, p. $90.</p> <p>Same. — Possession.—Bailment.—Sales.—A bailee of law books, with authority to sell the same at a price fixed by the owner, is not entitled to possession as against the principal so as to defeat a replevin suit by the principal against an alleged purchaser. pp. $91, $9$.</p>

Erom Pulaski Circuit Court; G. W. Beeman, Judge. Proceeding supplementary to execution by John W. Murphy and others for the purpose of reaching a legacy in the hands of Oliver H. Bogue and others, executors of the will of Joseph W. Busick. Erom a judgment for plaintiffs, defendants appeal.

<p>Erom Marion Supqrjor Court; Vinson Carter, Judge.</p> <p>Action by the Marion Bond Company against Harry O. Johnson to enforce a street improvement assessment. From a judgment in defendant’s favor, plaintiff appeals.</p>

From Wabash Circuit Court; H. B. Shively, Judge. Action by Josephine Coate against the Logansport and Wabash Valley Natural Gas Company for damages to property caused by an explosion. From a judgment for plaintiff, defendant appeals.

<p>From LaPorte Circuit Court; J. C. Richter, Judge.</p> <p>Action by Harlan A. Stauffer and others against Isaac B. Linentbal for brokerage commission. From a judgment for defendant, plaintiffs appeal.</p>

Erom Hamilton Circuit Court; J. F. Neal, Judge. Action by Henry E. Smith and others against the American Crystal Monument Company and others to recover possession of real estate and to quiet title thereto. Erom a judgment for defendants, plaintiffs appeal.

<p>From Lawrence Circuit Court; Newton Grooke, Special Judge.</p> <p>Action by Michael T. Carmichael against John B. Crafton on a contract. From a judgment for plaintiff, defendant appeals.</p>

Erom Huntington Circuit Court; J. W. Adair, Special Judge. Exceptions by Enos T. Taylor to tbe final report o.f Elizabeth McGrew, executrix of the estate of Robert FT. Holt, deceased. Erom a judgment directing the application of the funds to the payment of certain judgments in preference to a mortgage, exceptor appeals.

From Huntington Circuit Court; W. J. Vesey, Special Judge. Suit by Daniel Schwartz against 'William Me and others to enjoin the construction of certain ditches. From a judgment for defendants, plaintiff appeals.

From Cass Circuit Court; D. H. Chase, Judge. Action by Jessie Case against Napoleon B. Bichason, sheriff, and others to recover her interest as heir in certain funds in the hands of the sheriff. From a judgment in favor, of defendants, plaintiff appeals.

From Lawrence Circuit Court; W. H. Martin, Judge. Action by the H. B. Smith Company against T. J. Louden for the purchase price of heater, in which Silas J. Williams was made a defendant on the ground that he claimed some interest in the account. Defendant filed a cross-complaint making plaintiff and Louden defendants, and also against Obey & Co. The latter also filed a cross-complaint against plaintiff and all of its codefendants.

From Marion Superior Court; Vinson Garter, Judge. Action by Leopold Raub and others against Christian F. H. Waterman and others on a replevin bond. From a judgment for defendants, plaintiffs appeal.

Erom Marion Circuit Court; II. C. Allen, Judge. Action, by Wilber F. Browder, administrator of tbe estate of Mary Schwacke, deceased, against Frank E. McCabe and others, to recover personal property belonging to said estate alleged to have been converted by defendants. From a judgment in favor of plaintiff, defendants appeal.

From Marion Superior Court; Vinson Carter, Judge. Action by Mary A. Walton against tbe Indianapolis Street Eailway Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

From Union Circuit Court; F. 8. Swift, Judge. Action by Kingan & Go. against William Hawley, administrator, and another, to set aside a final settlement report. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

Erom Delaware Circuit Court; J. G. Lefler, Judge. Suit by Eelix P. Anderson against John S. Krohn to cancel a mortgage and quiet title. Defendant filed a cross-complaint seeking the enforcement of his mortgage. Erom a judgment foreclosing the mortgage granting defendant a portion of his demand, he appeals.

<p>From Marion Superior Court; J. L. McMqster, Judge.</p> <p>Proceeding by Mary Tobin against John W. Tobin for the modification of a divorce decree. Prom a judgment in favor of defendant, plaintiff appeals.</p>

From Clark Circuit Court; J. K. Marsh, Judge. Action by Zerelda Vaught on a claim against the' estate of Mary Barnes, deceased. From a judgment for defendant non obstante veredicto, plaintiff appeals.

<p>Waters and Watercourses.— Obstruction. — Damages.—Where in an action for damages for the obstruction of a watercourse the complaint charged that a watercourse through plaintiff’s land was originally crossed by defendant’s railroad tracks upon a trestle about fifty feet long and twelve feet high, and that defendant filled the same with earth, timbers, and stone, placing a sewer-pipe therein which was too small to carry off the water “at wet or rainy seasons of the year, and in times of high water, ’ ’ the cause of action was not complete upon the construction of the embankment, and only damages that had actually accrued by reason of the acts charged are recoverable.</p>

<p>Negligence. — Freedom from Fault. — Complaint.—Where it appears from the complaint in an action for personal injuries that the injured person was without fault contributing to ' his injuries, the complaint is good as against a demurrer without a general averment as to freedom from contributory negligence, p. S97.</p> <p>Pleading. — Amendment During Trial. — A cause will not be reversed because of the action of the court in allowing a pleading’ to be amended during the progress of the trial, where it does not appear that the issues where changed by the amendment or that the complaining party was prejudiced thereby, pp. 898, 899.</p> <p>Appeal and Error. — Transcript.—Briefs.—The sufficiency of a pleading is not presented on appeal, where it is stated in appellee’s brief that it nowhere appears in the transcript that any ruling was made upon the demurrer thereto, and the appellant does not cite the court to the page of the transcript showing such ruling. p. 399.</p> <p>Same. — Refusal to Submit Interrogatories. — Harmless Errar. — Where in an action for damages the defendant pleaded a release, and the plaintiff in reply alleged no consideration, fraud of procurement of settlement, and non est factum, and the jury found that there was no consideration for the release, and that plaintiff never executed the release, the refusal of the court to submit interrogatories on the question of fraud was harmless, pp. 399, 400.</p> <p>Damages. — Jury Not Required to Itemize. — Personal Injuries. — The defendant is not entitled to have the jury itemize plaintiff’s damages in the trial of an action for personal injuries, p. 400.</p> <p>Evidence. — Release.—Contradiction.—Parol Testimony. — WTiere in an action for personal injuries defendant pleaded a release, reciting as a consideration for the relinquishment therein stated, the payment to plaintiff of a certain sum of money, parol evidence is admissible to contradict the recital as to consideration, pp. 400-4OS.</p> <p>Evidence. — Trial.—Discretion of Court. — A cause will not be reversed because of the refusal of the court to permit defendant to introduce in evidence on cross-examination of a witness for plaintiff, for the purpose of discrediting the witness, a letter, not relating to the case on trial, written by the witness to defendant, where it does not appear from the record that there was an abuse of discretion in such ruling. Henley and Wiley, JJ., dissent, pp. 4OS-4O6.</p>

From Porter Superior Court; II. B. Tuthill, Judge. Action by Edward A. Getchel against the Chicago Junction Railway Company for damages for personal injuries. From a judgment for defendant, plaintiff appeals.

From Hamilton Circuit Court; J. F. Neal, Judge. Action by Lillie M. Shepherd against the Citizens Street Railroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals

From Marion Superior Court; J. M. 'Leathers, Judge. Action by Eaymond J. Hamer, by next friend, against tbe Citizens Street Eailroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

From Carroll Circuit Court; T. F. Palmer, Judge. Proceeding by tbe Town of Elora to open a street across tbe right of way of the Terre Haute and Logansport Eailway Company. From a judgment on appeal in favor of the town as to the regularity of the proceedings, and of the railway company as to damages, the railway company appeals.

<p>Erom Roble Circuit Court; J. W. Adair, Judge.</p> <p>Action by Mary Gardner against William G. Gardner to quiet title. Erom a judgment for plaintiff, defendant appeals.</p>

From Marion Superior Court; J. M. Leathers, Judge. Action by May E. Smith against Gustave A. Efroymson and others - for damages for false imprisonment. From a judgment for plaintiff, defendants appeal.

<p>From Washington Circuit Court; D. M. Alspaugh, Judge.</p> <p>Action by Henry W. Baker against George S. Hancock for malpractice. From a judgment for defendant, plaintiff appeals.</p>

From Allen Superior Court; J. H. Aiken, Judge. Action by Monroe W. Fitch and others, against Kittie Long and others for a brokerage commission. From a judgment for defendants, plaintiffs appeal.

From Hendricks Circuit Court; T. J. Cofer, Judge. Action by Robert L. O’Hair, guardian, against Georgiana Bowen, administratrix of the estate of Andrew J. Bowen, deceased, on a promissory note. From a judgment for plaintiff, defendant appeals.

From Clark Circuit Court; J. K. Marsh, Judge. Proceeding by Jennie VanHook to enforce a claim against the estate of Harriet B. Young, deceased. From a judgment for defendant on answers to interrogatories notwithstanding the general verdict, plaintiff appeals.

<p>Erom Laporte Circuit Court; J. C. Richter, Judge.</p> <p>Action by William Zahrt against the John Hilt Lake Ice Company. Erom a judgment for plaintiff, defendant appeals.</p>

Erom Wells Circuit Court; A. N. Martin, Judge. , Action by Ezra T. Lee, administrator of tbe estate of G-lannor Sloan, against tbe Chicago and Erie Eailroad Company. Erom a judgment for plaintiff, defendant appeals.

Prom Jefferson Circuit Court; P. E. Bear, Judge. Proceeding by William H. Powell as executor of tbe will of Harvey B. Foster, deceased, againBt the New Albany Trust Company as guardian of Willie Trow Foster, and Willie Trow Foster and Genevieve Foster, legatees, for the construction of the will. From a judgment in favor of Genevieve Foster, the New Albany Trust Company and Willie Trow Foster appeal.

<p>Erom Hamilton Circuit Court; J. F. Neal, Judge.</p> <p>Suit by Ransom S. Moore against Arza Smith and others to enforce a chattel mortgage. Erom a judgment for defendants, plaintiff appeals.</p>

<p>Injunction. — By Appellate Court Pending Appeal. — Where pending an appeal from the action of the court in appointing a receiver the main action came on to be heard and was determined in favor of plaintiffs, from which defendant appealed, the Appellate Court will not, during the pendency of such appeal, and after the affirmance of the order appointing the receiver, issue a temporary injunction restraining the receiver from taking possession of the property during the pendency of the appeal in the main action.</p>

<p>From Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Action by Emma J. Everitt against Eugene Everitt for divorce and custody of child. From a judgment for plaintiff, defendant appeals.</p>

From Marion Circuit Court; H. C. Allen, Judge. Action by Ira M. Holmes against Mary R. Stuckwisch and others to set aside a conveyance of real estate as fraudulent. From a judgment for plaintiff, defendants appeal.

Erom Hancock Circuit Court; C. Gr. Offutt, Judge. Action by Asher P. Howard and wife against the Indianapolis Street Railway Company and another for damages for personal injuries. Erom a judgment for defendant, plaintiffs appeal.

From Clinton Circuit Court; J. V. Kent, Judge. Action by William M. Scott against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the Western Union Telegraph Company for damages for personal injuries sustained. From a judgment for plaintiff, defendants appeal.

From Benton Circuit Court; J. M. Babb, Judge. Suit by Martha J. Earle and another against William S. VanNatta and others to reform a deed, and for the recovery of possession of real estate. From a decree for defendants, plaintiffs appeal.

Erom Miami Circuit Court; J. T. Cox, Judge. Proceeding by the Cincinnati, Richmond and Muncie Railroad against the Wabash Railroad Company to appropriate a right of way across the tracks of defendant. Erom a decree approving the award, and pending exceptions thereto, defendant appeals.

From Allen Circuit Court; J. H. Aiken, Special Judge. Action by tbe State on the relation of Jacob Wyatt against Albert L. Bagby and others on the bond of Albert L. Bagby as constable. From a judgment for defendants, plaintiff appeals.

From Hendricks Circuit Court; T. J. Cofer, Judge. Proceeding by John T. Hollingsworth, administrator of the estate of Murza N. Hollingsworth, deceased, for partition. From the action of the court in sustaining demurrers to his answers and cross-complaint, and ordering partition, Asbury Hollingsworth appeals.

Erom Putnam Circuit Court; P. O. Colliver, Judge. Proceeding by Daniel Cohn and others, executors of the last will of Nicholas Schultz, deceased, against Alva Cox and another for partition of real estate. Erom a judgment for petitioners Alva Cox appeals.

Erom Hamilton Circuit Court; J. F. Neal, Judge. Action by tbe Consolidated Coal & Lime Company against William R. Hines and others on an account for material furnished subcontractors for the improvement of a street. Erom a judgment for plaintiff, defendants appeal.

<p>Erom Allen Superior Court; J. H. Aiken, Judge.</p> <p>Action by William H. Pfeiffer against Charles Erhardt on a promissory note. Erom a judgment for plaintiff on default, defendant appeals.</p>

From Clark Circuit Court; J. K. Marsh, Judge. Suit by William ÍT. Burns and others against Sarah L. Littell for partition. Erom the action of the court in denying his application to be made a defendant, John T. Littell appeals.

From Marion Superior Court; Vinson Carter, Judge. Action by Thomas A. Jeffery and others, against Wayne Township for damages for sheep killed by dogs. From a judgment for plaintiffs, defendant appeals.

Erom Marion Circuit Court; II. G. Allen, Judge. Proceeding by August Grande, Jr., and others for the establishment of a highway. Erom a judgment establishing the highway, John B. Benard and others appeal.

Erom Elkhart Circuit Court; Wilson Boose, Special Judge. Action against the Indiana Eailway Company and others to foreclose a mechanic’s lien. Defendant John E. Wadsworth filed a cross-complaint against all of the parties, and the court found for Wadsworth against the railroad company, and for plaintiff on his plea of set-off as against defendant Wadsworth on his cross-complaint, and the railroad company appeals.

<p>Bills and Notes. — Consideration.—Presumption.—A promissory note is presumed to have been given upon a sufficient consideration. p. 589.</p> <p>Same. — Consideration.—Gift.—Evidence.—Evidence in an action to en-' force the payment of a note against a decedent’s estate that the note was given by decedent to an evangelist to secure the dissemination of the religious doctrines in which decedent believed, and of which she regarded the evangelist a proper exponent, and that the evangelist thereafter continued in the work for which the note was given, was insufficient to show that the note was a gift and without consideration, pp. 590-592.</p>

Erom Tipton Circuit Court; W. TP. Mount, Judge. Action by Jefferson R. Hildrup against the town of Windfall City and others to enjoin defendants from removing a shade tree in front of his residence. Erom a judgment for defendants, plaintiff appeals.

Erom Marshall Circuit Court; A. G. Gapron, Judge. Application by John H. Bass to require the receiver of the Plymouth Cycle Manufacturing Company to pay the balance remaining in his hands to applicant as mortgagee, to which Daniel McDonald and other general creditors demurred. The court denied the application, and plaintiff appeals.

From Marion Superior Court; J. L. McMaster, Judge. Action by Susan E. Carnahan against the Adams Express Company to recover the value of an express package. From a judgment for plaintiff, defendant appeals.

<p>Reformation of Instruments. — Complaint.—In. an action to reform a written instrument, it is necessary to set forth the terms of the original agreement, and also the agreement as reduced to writing, and point out with clearness wherein the mistake was made. p. 618.</p> <p>Pleading. — Blank Dates. — Leaving dates blank in a pleading can not be reached by demurrer, but by motion to make moro specific. p.*618.</p> <p>Reformation of Instruments. — Pleading.—An allegation in a pleading to reform a written instrument, “that by mutual mistake and inadvertence of the parties, * * * and by the mistake of the scrivener who wrote the same” the contract was so written, is sufficient to show that the mistake was mutual, pp. 618, 619.</p> <p>Pleading. — Conclusion.—The word “mistake,” as used in a pleading to reform a written instrument on the ground that the contract was so written by mutual mistake of the parties, is the statement of a fact, and not a mere conclusion, p. 619.</p> <p>Reformation of Instruments. — Failure of Plaintiff to Read Contract.— The fact that plaintiff failed to read a contract as written will not defeat his action to reform it on the ground of mutual mistake. p. 619.</p> <p>Same. — Complaint.—A complaint to reform a written contract which shows what the contract actually was by specifically stating all the facts, and what was mutually agreed upon between the parties, and that hy mutual mistake of the parties and the scrivener the contract sought to he reformed was written, is sufficient. pp. 620, 621.</p>

From Hendricks Circuit Court; T. J. Gofer, Judge. Action by tbe State on tbe relation of tbe board of' school commissioners of tbe city of Indianapolis against Samuel A. Hogue, treasurer of tbe school board of West Indianapolis, and bis bondsmen. From a judgment in favor of relator, certain defendants appeal.

From Hamilton Circuit Court; J. A. Roberts, Judge. Action by James L. Evans and another against Aaron Sohl and others for money had and received, and in attachment and garnishment. From a judgment for plaintiffs, Aaron Sohl appeals.

From Marion Superior Court; J. L. MeMaster, Judge. Action by Ceatta Oliver against Willard W. Hubbard and another for damages for alleged false representations in a settlement. From a judgment in favor of defendants, plaintiff appeals.

<p>Highways. —Establishment. —Prescription.—Change.—Where a highway has been used for twenty years, though never formally established, its location may be changed, under §6774 et seq. Bums 1901, permitting any person through whose land a public highway may run to petition for a change of location.</p>

<p>Erom Delaware Circuit Court; J. G. Lefler, Judge.</p> <p>Action by Joseph E. Duckwall against John Williams on account for legal services. Erom a judgment for defendant, plaintiff appeals.</p>

From Howard Superior Court; Hiram Brownlee, Judge. Action by Thomas F. Mahouey, administrator of the estate of Oscar P. J. Bomich, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Louis Bailway Company for damages for the death of decedent. From a judgment for plaintiff, defendant appeals.

<p>From Noble Circuit Court; J. W. Adair, Judge.</p> <p>Action by Andrew E. Whetzel against tbe Union Central Life Insurance Company on a contract of insurance. From a judgment for plaintiff, defendant appeals.</p>

Erom Madison Circuit Ooúrt; J. F. McClure, Judge. Action by Martba J. Laugblin against the city of Elwood for damages for personal injuries. Erom a judgment for plaintiff, defendant appeals.

Erom Marion Superior Court; J. P. Baker, Special Judge. Action by Bank of Toronto and others against the Vernon Insurance and Trust Company on an insurance policy. From a judgment for plaintiffs, defendant appeals.

Erom Jasper Circuit Court; S. P. Thompson, Judge. Action by William H. Randle, administrator of the estate of Raney J. Shaw, deceased, against Samuel W. English and wife on a promissory note. Erom a judgment in favor of plaintiff, defendants appeal.

From Miami Circuit Court; J. T. Gox, Judge. Action by Julius Falk against the board of commissioners of Miami county for supplies furnished school children. From a judgment for plaintiff, defendant appeals.

Erom St. Joseph Circuit Court; W. A. Funk, Judge. Action by Frank Mikesell, administrator of the estate of Chester Hess, deceased, against South Bend Electric Company for damages for the death of decedent. From an interlocutory order suspending further action until the costs of a former suit were paid, plaintiff appeals.

<p>From Monroe Circuit Court; W. H. Martin, Judge.</p> <p>Action by James G-. Steeley and others against Isabella K. Seward. From a judgment for plaintiffs, defendant appeals.</p>

<p>Municipal Corporations. — Opening Street. — Report of Commissioners. —Acceptance.—Where the report of commissioners appointed, under §4408 Burns 1901, to establish a street is not accepted or rejected by the board of town trustees within twenty days after it is filed, the proceedings are nullified, p. 693.</p> <p>Appeal. — Finding of Trial Court. — Presumption.—Where on appeal from a judgment enjoining the opening of a street, under §4408 Bums 1901, there is evidence from which the court might have found that the statute had not been complied with, it will be presumed that the court so found, pp. 693, 694.</p>

From Madison Circuit Court; J. F. McClure, Judge. Action by George EL Manlove, administrator of the estate of Ellen Davies, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.

<p>Prom Porter Circuit Court; J. II. Gillelt, Judge.</p> <p>Action by Carl Greb against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>