The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-19
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme Court-May IS.

CONVEYED
1O,335. Samuel B. Bushnell VS.. viii s. Bush
nell White G. c..
Hammond, Jan action by an executor or ad-
ADMINISTRATOR TO sell lands fraudulently conveyed
by his interstate IN his lifetime must he com
menerd within five years after the death OF the
dpoedent (Secs. 1888, 2.334, K. s.; 20 Ind.
bp0l Where one purchases real estate with DIS
own means, and to defraud his creditors canses
the conveyance TO be made TO another 10 IS
fraudulent transfer of lands within the meaning
Of the stature. Judgment affirmed
DEMURRER IMPROPERLY FRAMED.
1928. Elizabeth Thomas Abner Good
win. Warren q. G.
Howk, IA demurrer to an answer for the
Oh that sit does not state facts sufficient TO
constitute an answer to plaintiff g complaint"
Ii not sufficient in form tn present any question
70 The court. az Ind, 41O; SO Id, 121; 80 Id,
2l2l Judgment affirmed.
sURErYsH1P- EsToPPEL-sET-oFF.
9,495. Robert c. Menaugh VS.. Thos c. Chand-
Ter IT al. Carroll G. c.
lees note containing the stipulation, 'All
whose names are signed to or Endorsed upon this
note expressly agree to be held principal
debtors" This stipulation concludes the appel
liant Menaugh from asserting that he is a surety.
Is Ind $50; 10 id, l; Ia Fa, POL; 80 Me. 466J
MenHugh bought "A claim against the appelees,
and insists upon his right to set it off against
the note. TniS he cannot do claim in favor
of only one of several defendants cannot be set
of against nnte executed by them. 80 Ind
Az; Al i'd, 1872: 46 i'd, 300 50 i'd, 2l7l Judg
ment affirmed.
ACKNOWLEDGEMENTS OF WORK DoNE-RECEIPr
IN FULL
1888 John Kistler VS.. The I. & St. L. Rail-
way Company. Marion q. c.
Morris, e. Appellant alleged in his complaint
to which demurrer was sustained, that he had
contracted with the appellee to grade
the line of its road; tn & he had
perfoi med work under the contract which had
aniy partially been estimated by the eOmpany's
engineer and that under protest he accepted
&I,9I9 30 on the work, for which he gave re-
UeiOt, claiming at the same time that there was
81, 900 due him for the work he performed. BY
she contract monthly eHtimatrs were To be made
by the cOmpAny's engineer, and If any dispute
Rhouid arise as to the meaning or execution of
the contract he decision of said engineer shonld
be final aud binding upon both parties 1t is not
alleged that the engineer, IN making the IueOn-
plete estimate, acted fraudulently, or that there
was any HistSlfe, hut 1t Is clear that the omission
10 estimate part Of the work must have peen the
result of n mistake or purposed neglect, and III
either the estimate was not conclusive upon
the appellant. Where there is mistake Of fact
the estimate e not binding. pierce on Railroads,
page 1872; ~ Mimi, 43l II 1t was
meant by the contract that the COM
pany's engineer should oe the sole umpire
OF all differences that might arise, thus precud-
ing them from the right to resort to the courts
Cor the settlement of such differences, this pro
vision is void as against public policy. (Red on
railways 454: House Of Lords, S11l Where
the plaintiff receives certain sum, and gives
receipt in fun for the disputed claim il is n good
BIass.l, 551 2 Duer, 1921 But it does not APP
pear In this case that receipt i'll full was given
melt reversed
NEUTRALITY-SUSPICIOUS.
9.593 william 81. Burkhart VS.. Samuel
Merry. Vigo c. G.
Buxnell, Can affidavit for continuance on
the ground of the absence of the plaiutiffs,
which does not show that they may not have
been in town the day of trial, that their
presence was necessary either as parties or wit
Deases. is nor sufficient. Is Ind, Ais; 40 lit,
1872: ~ Id, 450) The affidavit to aside the
default was equally defective. Judgment
affirmed.
REPIEvIN BoND-DAMAGEs-IANDL AND
TENANT.
1925. George Miller VS.. John W. Cheney.
Clinton c. c.
Black, C.-Section l ,433 r. S. 1881, does not
deprive the Circuit Court, or ny relation the JUS
rice, of Jurisdiction in an action appealed from
Justice, where the title land first comes in
question in the Circuit Court. Us Ind, 145)
Appellee sued appellant in replevin for TWO
fifths of crOp of wheat raised ON certain land.
The action was dismissed for nsuffioiency of the
plaintiffs bond, and afterwards the wheat was
seized under the writ issued in the action. APP
pellaut sued on the bond amt recovered nominal
damages 1t appeared that the land on which
the crop was raised was decided To appellant and
Mrs. Harland, the appellant to have the possess
son, rents and profits until Mrs Harand
should be twenty-One years old, when il was to
become hers in fee simple. Upon her coming of
age the land was conveyed by her and her hus-
band TO the appellee. Where the action of re-
levin Ia disnssed only nominal damages
can be recovered on the bond II IL appears
that the plaintiff in the replevin suit In fact
properly taken. (6 Blkf, 20; % Ind, g. The
deed under which appellant possessed and cul
tivated the land created vested remainder in
Mrs. Harland and Il particular estate in appel
liant. In the absence OF any agreement The
crop growing on the land at the termination of
the particular estate was the property of the
former. and Inv her deed passed to THE appellee.
t8l Ind, 3S2j II appellee was thus entitled
to the entire crop the fact that ne only took Two
ffths of H. leaving The rest to the appellant, does
not show that the latter did not get all that he
was entitled to and that he had any right to
more than nominal damages. Judgment af-
hrmed.
sHERIFFs sALE-PowER OF ATToRNEY-DE
scRIPrIoN.
9,6s5. John j. Brake vs. James H. Stewart
Bicknell, C.-where a Judgment is by confess
sion under pnwer of attorney, and there
is no personal appearance by the
defendant, "a valid title In tina purchaser at the
sale under the Judgment is not shown without
the production OF the power of attorney. (26
Ind, 319l But in this case the complaint shows
that the court had jurisdiction OF the subject:
matter Of the foreclosure suit, and at the end OF
the judgment was this entry: "And 1t Is by the
parties agreed that execution shall not issue
herein for six months. unless ordered by said
Elisha Stewart" This statement shows that
both parties were in court recognizing the
lidity of the Judgment, ana this Sufficiently
shows jurisdiction of the court over the persons
of the defendants 90 Where a lot Ia correctly
described by the plated number, block, etc. the
erroneous addition OF the words Situated IN the
city OF Trrre Haute" will not vitate It, III NJ.
& w, l69; T. R., 676) Judgment reversed.
The following cases were also decided:
9.S04. Hcssian Heck. Huntington c. c.
Reversed. Morris G.
81 1923. Walker vs.. Heller. Henry C. C. Re-
9,ll5. Melivaiu VS.. Emery. Marion c. C.
Affirmed. Norris C
City of Wabash Va. George Albert. Kosciusko
G. q. Reversed Franklin, @.
Lake Shore. etc, Railway Company VS.. Alvin
A. Fix Tippecanoe o. c. Rehearing denied.
SuDerior Court