The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-29
RECORD OF THE COURTS.
Proceedings in the Various Courts OF
Record Yesterday.
Full Abstract of the Opinions Rendered Oy
the Judges of the Supreme Court
work in the Local Courts.
Supreme Court-NoV. RI.
Hon. Geo. V. Howk. Chief Justice.

IfOs1. Howard county VS.. Addison F. Arm
strong. guardian. Toward G. O.
,.wa 70 Ies refnnded nnder sections 5Sl3 and
6,Sl4, r. s. The complaint charged that as
guardian he paid the taxes on properly OF ms
wards over his objection; that the taxes hau
never been regularly assessed for the years
1875, 1875 and 1873, by the assessor, but were
innIawfully placed on the tax duplicate by the
treasurer after it came into his hands. The
presentation of q claim and the establishment or
1t by proof appear to he the only essential pro
Oeedings under said sections. (35 Ind, 7O 80
i'd, 81; 81 id, 5431 Bnt where the parties
formally Mead the fact and take the opinion OF
the court upon their sut1cieney, and there IS
final Judgment upon demurrer in such case, the
facts admitted by the demurre" supply the place
OF facts established by proof at formal hear
ing, and the cause will be reviewed here upon
the facts presented by the pleadingS. In the abb
sence of a statute authorizing such a proceed
ing an illegal tax voluntarily paid cannot
be recovered back. III Ind, 326; 81 i'd, go
And the payment of such taxes cover objection
merely does NOT make tho pay ment an involuu-
tsry one. (97 U. s., ISL; Dill. Mum. Corp, sec.
$50, $40, 94l. ct seq; Cooley on Tax, 1861 But
sec. 5,813 changes the rule and requires taxes.
howeyer voluntarily naid, to be refunded upon
proof that they 'wrongfnlly" assessed.
The assessments made by the county treasurer
for all the years prior TO 1880 were not only
Irregular hut unlawful, and the payment of the
taxes so charged could not have been enforced.
But the answer AYERS that Armstrong had the
money in his hands upon which the treasurer
assumed to make assessments for the years
1875, 1876 and 1873, and that it was liable to
taxation, but was fraudulently concealed, and
that the taxes were justly and equitably due
from his wards. Property liable to taxation
cannot be held to have been wron gully assessed
in the sense in which that word is used in the
statute. simply because some irregular or unau-
thOrized method was resOrted TO i'll assessing
Sne taxes. The facts set up in the answer
constitute good defense. Judgment reversed
COUNTY PooR-MEDIcAL TREATMENT
lo.825. Clark Robbins vs., Morgan County
Morgan c. c,
Hammond, 1.-THE support of the poor is
made a county rather than a township charge
In the absence of provision made by the county
board. township trustees may, at the expense
OF the county, employ such medical services as
the paupers within their jurisdiction require.
But their authority to make such employment
exists only where the county board has failed TO
make proper provision. The agency of the
teSRshlp trustee is special, and If he exceeds
his authority the county ia not bound. % Ind,
5O2: 80 TO-, $50; 81 i'd, l5.) In this case the
county board mad made ample provision on the
subject. Judgment affirmed.
TowNs-ANNExING NEUTRALITY-SUSPICIOUS.
1O,126 Town of Cicero VS.. Orml Williamson.
Hamilton G. G..
Elliott, J.-Proceedings to annex contiguous
territory to incorporated towns cannot be set
estfe on the ground that the proceedings of the
Board Of Commissioners were erroneous
cept on direct appeal. The regularity of the
proceedings cannot be litigated in a collateral
attack, but the question OF jurisdiction may be-
90 Ind $40; 81 i'd, 8, ST. $685. Whore a petit
zion signed by the town officers and protesting
TO he the petition of the town is filed
with the county hoard is adiudged sutfi-
cient and Judgment Is rendered annex
Ing tho contiguous territory, it will
attack any question as to the Formally of the
proceedings OF the town trustees. 1877 Ind. 45)
The notice published sufficient, but the
statute requires that copies of the notice Shall be
served upon residents OF the county. (R. S.
$3.50 The complaint ayers that the plaintiffs
were not served With such notice. although
known residents Of the county, and as they had
private rights affecting individual properly, the
proceedings so far as they affected their indiyid-
uai interests, were void for want of jurisdiction
OF their persons. (S4 Ind, $50; 81 i'd, 800 AZ
Id. 578) The complaint is good. The evidence,
served on the appellees, ana they are therefore
concluded by the proceedings. Judgment re.
versed
EJECTMENT--C
lO.782, Sarah Swaynie VS.. Philander I. Vess
T1DpecanOe c. G.
collars i'm an action of ejectment, the
plaintiff is required TO that he is entitled to
possession of The premises, the interest he clains
therein, aud that the defendant I'M
lawfully keeps him ouJ of possession.
(R- s., section 1,054.) But it is not necessary to
use the exact words of the statute. 1t Will be
sufficient If words Of similar import used, or
the averments Of the complaint be such as to
show the plaintiffs right to suen possession and
the defendants unlawful detention. (37 Ind,
'463 "a i'd, 575; 80 i'd, 1l4) Judgment at
trmed.
-IEFANT MARRIED woMAN's CONFERENCE.-The
AFFIRMANcE.
lO,728. Lucinda Richardson Vs. jackson T.
Pate ct al. OHIO c. Q.
Hammond, J.--In 1859 appellant. being sew
eBteen years old, joined her husband in the CON
vevance OF real estate He died in $50, and in
1882 she brought this action to recover her
third in the land, having given notice of her
disafhrmaaee 0f the deed. Prior TO present
code, married women were regarded as under
legal disabilities and persons who were under
legal disability when the cause of action ac-
crued may bring their action within two years
after the removal of the disability. (R. s., sec
ance of an infant married woman might
be disaffirmed by her within a reason
she might have disafirmed on arriving
at age, but her right to do so not preiudlced
by the delay until after the termination of
eover,ure. (s2 Ind, 100; SO i'd, 81; "a Id, 1856;
102 U. s., 300l Such disalfirmauce may ue
made at any time within the period in which an
CT ind, 500: 80 id 100; So Miss. 29l) The
fact that full value was paid TO her husband for
the land, ana that with the purchase money
other lands were bought of which she received
One-third, did not bar her right to recover 1t
was not necessary for her to return the pur-
chase money in order to disatfirm the deed. ga
Ind. 1873: "a Id, 1907 Judgment reversed.
RAILBoADs-APPRoPRIAT OF EQUITY
GASES.
1o,757. Lake Erie q Western Railway Com
pany vs.. Margaret Griffin. Carroll C. c.
HOwk, c. J.-Appellees alleged in their COM
plant the recovery by them of n Judgment
against the L., NJ & b. Railroad Company in IA
proceeding for the nppropriati0n of their Land
Prior TO such Judgment the company had
executed mortgages TN its entire property, aud
under foreclosure sale the pr nperty was sold 10
3he oondhOlders who organized a new railroad
company, which is the appellant, and is the
owner OF all tho old cOmpany'S properly. 1t
was furtn6r aVtrreu thaG upun It's succession TO
the rights and franchises OF the former corpora
ton tue appellant entered upon, used and
oupied the condemned premises. Appellant Is
lfable, not upon the judgments against the old
company, bul upon the principle that having
adopted the original APPROPRIATION it is bound III
equity and good conscience To make cnmpensi,-
tion. u.s. Wis, l64). Before trial appellant m0ven
that the cause he tried by the court without II
Jury, but the court called a jury to try the
cause This was error. Tie complaint was
hin in equity and under section 400 X. s. tha
issues were rrable by the conIt. te6 Ind 27S)
The court also erred in refusing, upon APP
pellant's motion, to frame questions OF fact.
hich, in Its discretion he court might wish to
have tried by jury for its own iuforna ton and
in ordering the jnrv tn he sworn generally To
try the case. t87 InIl., 262) Judgment re-
Yersed.