The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-26
Supreme Court-NOv. 81.

Hon. W. E Niblack, ChiefJustioc
ARREST OF JUDGMENT-BILL OF EXCEPTIONS.
1914. Hiram Hansher VS.. Henry Haushew
ct al. Upton c. c.
judgment after the judgment is rendered.
tBusk. Prac., 264: 81 Ind, 452l Under the COLO
OF 1897 when tline was given for fling bills OF
exceptions beyond the term tine record must ar
firnlatively show that the bill both signed
and filed within the time limited. QGS Ind,
4589 Judgment affirmed.
MISUNDERSTANDING OF EVIDENCE.
1057O. David E. BEEN VS. Simon Packard.
Hammond, J,-Where there is evidence tend
ing to prove each material fact found by the
jury, after the verdict has been approved by the
TRIAL court In overruIing a motion for new trial,
the Supreme Court cannot weigh the evidence
to ascertain its prepondeGance. Judgment
affirmed
RIGHT OF JURY TRIAL-DRAINAGE ACT OF 1881
1919. John c. Anderson vs.. David \. Cald-
well. Boone G. g.
Hammond 1.-The question presented is
whether section of the drainage act of
1881, which provides that Questions of fact
shall be tried by the court without iury;" is in
conflict with section 20 article of tie cunstltu-
ton. which guarantees the right of trial by Jury
in all civil cases. Said section was adopted with
reference to actions that by the common law
were triable BY jury. As to such actions the
right of trial by jury was to remain iuviuate, In
other cases the Legislature may extend or limit
this right. % Ind, 55S; 81 id 1873; II i'd. 42O:
30 i'd, 2O9) The proceeding under the drainage
act for assessing benefits and damages ia not a
civil action within the meaning of the eonstitl-
sion, hut sptcial statutory one in which 1t is
competent for the Legislature to dispense with
a jury. Judgment aft med.
Elliott, 1.-The right of trial ny jury, al meant
by the constitution, is the right 1t existed at
common law. But for the constitutional inhiht
ton private property could be seized under the
right of eminent domain without paying its
owner any compensation. The right to compen-
satiOn did not exist before the constitution, and
is a right TO be exercised by the Legislature In
the enactment of statutes providing the mode of
n Z I Lay
8 Oregon, 141; 81 ILL.,, 2S6 2l Iowa, 1873. 81
MIMI, 241)
CRIMINAL PEACTIoE-BILL DE EXCEPTIONS.
11,225. Felix Calvert The State. Hamil-
Elliott. 1.-THE present criminal code provides
that motion for \ new trial may be filed after
Judgment and during the term at which it was
rendered. See. 1912. r. 81 A trial is regarded
as an entirety, and a bill flied during the trial
term, or within such time thereafter as the
court may direct, not exceeding sixty days. be-
comes part Of the record. II is essential that
leave TO file should be granted during the term
at which the trials had. 81 Ina, 450; 80 i'd,
569.l The assignment OF errors is in Su lficent,
because the names of the parties are not proven.
tS6 Ind. 1929 Judgment affirmed.
CONTRACT SIGNED BY ONE NEUTRALITY-SUSPICIOUS.
1o,s96. Alvin C. Elliott VS. Joseph Champ.
Fulton q. C.
Bcknell, c. CA complaint upon a written
contract signed only by the defendant, is bad
without an averment that the writing was de-
hvered TO or accepted by the plaintiff. Signing
alone by one party, without acceptance by tho
other, is not an xtcntiou Of an agreement iIa
Ind, 49, AZ III, 227; 80 i'd, l55; 70 i'd, 1901
1O,176. William B. Walls VS. Geo. W. Baird
Boone c. G.
Franklin Con petition for rehearing.
where defendant declines to join in al appeal
to this court he cannot be made party TO the
appeal by using his name as an appellant in the
assignment OF errors. AS an appellant he has
the right to go out, and his co-appellants have
no power TO hold him. Petition oyerruled.
PUBLIC sQUABE-HIGHwAY--
$500. Commissioners of Greene county Vs.
Thompson ID. HUFF. Greene G. c.
Franklin, C.-In laying out the public square
the commissioners OF Greene county left a space
on the south side unlncl0sed, TO he used
public highway aud waterway IN place of n
street on that side, which was rendered impassa-
BILE by reason of a hollow through it, The court
found that there intention the Part
of appellan: to dedicate. that there act
of dedication by fencing IN the balance of the
square and that there was an acceptance by
the public by continuous an uninterrupted user
for more than twenty five years. Phe question
is, can the commissioners now set the fence
out on the south size, 40 as 10 take in and
close up the highway thus dedicated? The ded-
icatlOn was sufficient e Ind, 425 81 ill.,, 201
81 i'd, 300: 60 ia. 357; GO i'd, l77J The land
upon which the town is located belonged to me
county Appellant, as its agent, had the charge
and management of the public square and had
the right to appropriate any part Of it to any
public use consistent with rhe necessities and
convenience of rhe Pnbc buildings erected
thereon. al Ind. 213; 90 i'll, 5Ill II must he
held that the appellant could Dedicate the prem
ises to the nublic to be used as nicnway. (29
N. j. Ed, 615; Mason, 397; At Ind, 25) Thu
public was elected by the acts of the commits
sioners and the acceptance of the pubic, tho
public use, that this part OF the plated public
square should be appropriated to ann said use
not inconsistent, but in harmony with the
Of the square as county-seat. Judgment af-
hrmed.
TAX IN AID OF RArLRo >Ds--PLElD1NG.
1Os98. Chas W. Caffyn VS.. ex rel Rader.
Fulton q. G..
Bickneil, C. C-while Sec 4,O62 r. s. re-
NAMED unqualified by subsequent legshtionit
was held that the failure of a railroad company
to commence work upon its road in the county
within one year from the levylng OF Il
special tax, the taxpayers were discharged
from their obligation TO pay the tax.
rights of the company il has been repealed by
subsequent legislation. t68 Ind. 500 In
complaint for "a writ of mandate TO request such
ajax 70 be placed on the tax duplicate 1t is suf-
fclent to aver That the. road was permanently
located through the township, without stating
IN what manner such fact was determined, or
that it was ascertained by Judicial determine
JlOn. Judgment affirmed.
The following cases were also decided, OF
which abstracts will appear hereafter
Jno. q. 1--we VS.. julius Louis. Floyd G. c. Re-
Alex. Coney VS.. Henry Dibber. Ohio @. @.
Affirmed. Best G.
Jno. W. Hanna JnO. Fisher. Montgomery
c. c, Reversed. Franklin, G.
Nelson FO-dyce VS.. Lewis c. Nelson. DaYiess
G. c. Affirmed. Bicknell, c. C.
James + Hockey VS.. ex. rel, Heitz. Knox q.
c. Affirmed. Besr G.
Superior Court.
Room No lion. Napoleon B. Taylor, JuIzs.
Anna Hayden The P, c. & st. l.. railroad;
damages. Judgment fOr plaintiff for %.s5.
iuella i. Wise VS.. Samuel H. Wise. Divorce
granted plaintiff.
Consolidated Leaf Company VS.. Peter Uhl; on
account. Judgment for plaintiff for Sl72.
Room No. 3-Hon. livingston Rowland, Judge pro
-. TEN.
Francis NJ. Chnfdhman ct al. va. Frederick
wild ct al: foreclosure. Judgment for 1923, IS.
40 rnhu ms an at uI vs. nh ttztr.s