The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-11
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.
supreme Couft-Jan. 10.
Hon. William A. Woods. Chief Justice.
sHERIFF's sALE-IRREGULARrvY.


sHERIFF's sALE-IRREGULARrvY
,e,275, Angeline Lovely VS.. Michael speishoder,
Marshall, c. G.
Elliott, J.-Wherea sheriff sold property on
the right decree, but by mistake mazda his
return on the wrong certificate, the sale was
not thereby rendered void. The failure to make
any return at all would not invaldate the sale.
~ ln1., 432). An execution defendant cannot
successfully defend an action TO recover posses
sion of land purchased at sherifs sale with
out showing that the sale was void. sale that
is merely voidable cannot be collaterally at
tackled, az Ind, 800. Judgment affirmed.
8.276 Charlotte Sohfarb vs.. Oscar Simmons
Elliott, This case is affirmed on the au-
thOrlty OF Lovely VS. Speishoffer supra.
ACTION TO QUIET AUTHORIZATIONS.
9,316. Josiah Farrarvs Elisha Clark. Miami
Howk, J.-Section $50 of the assessment act
or 1872 which provides that no action for the
recovery OF real estate sold for non-pay ment of
taxes shall lie unless brought within five years
from date of sale, is properly embraced in the
TUE OF the act, and Is not VOID. GA Ind, 297.I
SAID section does NOT, however, apply to actions
TO quiet the title to real estate thus sold. Such
actions may be brought within fifteen years
S62 Ind, l45; 81 Id, 49l) The section should
De construed strictly, and will not be extended
ey construction beyond what is expressed in the
statute. Judgment affirmed
DEMURRER TO EyIDENcE-PRAcTIcE.
$500. Michael Run VS.. Lawrence HUFF. Pu-
laskt G. G.
Woods, G. J.-Appellants filed objections to the
admission to probate of a will on the ground of
unsoundness of mind of the tesuatrix and undue
influence Appellee demurred to the evidence Of
Tered In support OF the objections and the demur-
rers sustained. There is evidence tending to
support the objections, and 1t is evident that
trary verdict, this court could have set it
aside for want OF evidence to sustain it. When
the evidence is such that jury may find in
favor OF party, the other party cannot defeat
such finding by demurring to the evidence. go
Ind, SOL; 81 i'd, l,577; n i'd, 576) Judg-
ment reversed
APPEAL NEUTRALITY-SUSPICIOUS.
1852 Davi1 f. HinkIe John W. Holmes
jackson Z. G.
Niback, J.-Complaint by appellant alleging
the recovery of personal Judgment against
fSauiseyS, anu IOf Tue IoreclOSure OF "a chattel
mortgage against appellee, from which the
latter appealed to the Supreme Court and
obtained supersedeas staying the execu-
ton OF the decree; that, theUeupon appellee and
one Emery executed bond to the sheriff for the
stay OF such proceedings; that at the time the
BOND was executed the mertgagea property
was worth ST. 900, which, by appelee's use
ana abuse of it, was greatly deprecated in value;
that said case was afterward affirmed in the Su-
preme Court, and said property sold by the
sheriff for $265, leaving part of the Judgment
unpaid. Although there was personal judg
ment against appellee, the stay OF proceedings
granted to him in aid of bis appeal was properly
made applicable to the personal Judgment
against the Ramseys, well as to the decree of
foreclosure, and the bond must be construed as
having been given to indemnify appellant to at
least the extent TO which he might be injured by
the appeal It is not necessary that an appeal
72) The complaint stated a cause of action, and
the demurrer thereto should have been over
ruled. Judgment reversed.
ClTIEs-ExcAvATIoN IN sTREET-NEGLIGENcE
9,l43. John McNaughton VS.. City of Elkhart.
Elkhart c. c,
collars, 1.-THE complaint of the appellee
alleged that, without permission, appellants 90
structed the sidewalk; that one Ritter was hurt
thereby, and brought her action against the city
for damages: that appellants were notified
by the city, appeared aud defended, and that
Judgment was recovered which the city paid.
This action was to recover the sum paid from
appellants. The answer averTed that appellants,
with the knowledge and without objection from
the town, made the excavation. This did not
amount to an aveTment that it was with the per-
mission of the city, and having acted without
such permission they were wrOngdoers, the
thors of n nuisance In the street, and without
reference to care or negligence, liable for the i'll
jury. Cooley on Torts 626; 81 Ind, 1872; st i'd,
39D In such a case the answer of the contractor
that he was employed by the owner of the build
ing and had no interest in the matter, except tile
performance of the work under his contract, Is
not good. Where the act done is unlawful, the
agent cannot shelter himself behind his princi-
pal and escape liability. billiard on TOrts,
242; 50 Ind, 337; 81 Mo- SO; Story Agency, Sec.
3l1, 321; Wharf Agency, Sec. 542J Appellants
are barred by said judgment from setting up
any facts therein adjudicated. 40 Gray, 496;
Wall, 657; 70 IND, $40 Judgment affirmed.