The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-19
SUPREME CoURT-ocr. Is,
DEcEDENrs' NEUTRALITY-SUSPICIOUS. DE


DECEDENTs' EsTATEs-PARTNERsHIP DEBTS.
| ,1o.457. Levi L. Warren vs.. James NJ. Abel Ell
al. Monroe G. G.
collars, Jon Sept. 10. 1880, appellants filed
claim against the estate of Farmer, consisting
| OF note made by Farmer & Williams April g.
1850 The evidence shows that Farmer bought
| Williams, his partner, out in 1861 and
| Using at different times to pay the balance,
| and never questioning the genuiaeness of
the note; that Williams has been 1nsOlvent since
1879 and there are no assets belonging TO the
| firm of Farmer & Williams. Upon these facts
| appellants were entitled to a Judgment payable
out of the assets Of Farmers estate after the
payment OF Individual creditors. Us Ind., 124
II i'd, 4O6: % i'd, 100; 90 i'd, sos; 69 i'd, 327l
| Judgment reversed
DITCH LAw-EXCUsABLE NEGLECT.
1882. VIM. Hays vs.. James L. Tlppy. Grant
Howk, J.-Complaint by appellant alleging
that on Sept. 81, 1881, the court ordered the
construction Of ditch, and that his lands would
| be benefited thereby to the value of $l2S; that
his lands would not, in fact, be benefited by said
ditch, and were assessed too much, etc. that he
mad been prevented by severe illness from filing
| his remonstranee within the three days allowed
therefor by law. While the time given by the
| statute for remonstrance is short and the pro-
vision may Seem unreasonable and oppressive,
| this will not authorize the courts to declare 1t
unconstitutional. (S5 Ind, 48I.) Sec. 396. E. 8.
1881, which provides for relief from Judgment
taken through eXcusable neglect, does not apply
| to a proceeding like this. The proceeding to
open drains is not in any civil action. 1t
O
noting public health or improving public high
ways and it was not Intended that it should be
subjected to the delays incident TO the trial Of a
civil case. Judgment affirmed.
DEED-oRAL AGREEMENT OF TRUST.
10,991. John Mescall VS.. Mark Tulley. Ma
rioD s. c.
Elliott. J.-AppeIlant's complaint alleged that
he was the owner of certain land encountered
by mortgage; that he entered into marriage
contract with julia Tulley whereby it was
orally agreed that she should pay off the mort
gage and he would convey the land to her to
hold in trust for them both. The deed was made
to her, and they were married; that Julia and
her brother Mark colluded together to defraud
appellant, the latter paying OFF the mortgage
and taking an assignmentOf it to himself; that
Julia afterward abandoned appellant, and Mark
procured foreclosure of the mortgage and
bought i'll the property; thar appellant allowed
Judgment to go by default because he was I'M
able to read or write, and was sick, etc. Held:
An express trust cannot be created by parol.
Having conveyed the land to Julia by an abso-
lutte deed, appellant cannot destroy the effect of
his conveyance by alleging a verbal agreement
that she should hold in trust for both. 49,
Ind, AZ 46 i'd, 488; SO i'd, 27.) There is no
showing that appellant is personally liable on
the Judgment, for the sale of the mortgaged land
discharged the debt, and as he owns interest
in the land the complaint shows no legal injury.
Judgment affirmed. ..---.. =
CORRECTING BILLS OF NEUTRALITY-SUSPICIOUS..
OSLO WIN. Morgan VS.. Ezra G. Hayes. Dear
Niblack, c. J-This was a complaint TO amend
a bill of exceptions. Appellant had obtained
Judgment agalnst appellee, which was reversed
by this court on the ground that the court below
erred in not granting appellee change of venue
from the regular judge. because of a rule of
court adopted April 49, 1877, the bill of eXcep-
tons showing by mistake, that the rule was
adopted April %, 1879 Courts required to
take judicial knowledge of their own rules. The
court had the Order-bOok entry of the adoption
of the rule before it, and consequently mad
ord to amend of prior date TO the bill of excep-
tlOns (23 Ind, 400; % i'd, 233; "a i'd, 344; rs
id, 1861 The complaint sufficient. Judg-
ment reversed.
JURY -sURPRISE-CRoss-CoM
PLANT.
lO,546. VIM. W. Helm VS.. First National Bank
Huntington c. C.
Hammond, 1.-The granting of injunctions be-
longs exclusively to The equitable Jurisdiction of
courts, and cases of This Kind, before the adop-
ton of the code of 1852, were tried by the court,
without jury, and party could not then, and
cannot now, demand as of right trial by jury in
such cases. Evans VS.. Neslis, 8, 1862, Nov. term,
1922 Section So, r. s., 1881, which provides
that sin all civil the right of trial by
jury shall remain inviOlate," applies only to
actions that before the adoption of the stitu-
ton were triaSle by jury, and has no reference
to cases falling within the chancerv jurisdiction
of courts. % Ind, 55S; % i'd, 2O4; 20 i'd, SO,
ADJ; 81 ia, 1881 e. plaintiff is not entitled
to u new trial on account of surprise at any evil
dence given for the defendant, because he has it
in his power to dismiss his case without preju-
dice to his rights. "a Bkf, 307; 80 Ind, 2421
Nor is he entitled to new trial for such cause
where the evidence complained of would not
have been received If objected TO or would have
been struck out on motion. 49, Where a de-
PENDANT flies his crOss-cOmplaint and motion for
q change from the judge after the case has been
tried, as between the plaintiff and the other de-
PENDANTS, he is too late and his pleading may
properly he dismissed. (StOrv Eq Pr, SEQ. 395;
Johns Ch., 357; i'd, 249.l Judgment at
frmed.
Superior Court.
A. II