The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-28
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-April 81.
Hon. William A. Woods, Chief Justice.
APPEAL-FAILURE TO JOIN Co-DEFENDANTs.
lOO35. Arthur Mueller VS. Austin Z. Dewey
ct al. Marion c. G.
Morris C.-The suit was upon the bond of
Dewey, Twiname, Graham and appellant exc
cuted 10 secure the performance of IA contract TO
build gravel road by the first three persons.
Judgment was rendered against al! the ueIehu-
ants, but the appellant alone appealed, MAKING
all his co-defendants appeIlees, Dut no notice
of the appeal was served on any of them. Inc
cause was submitted by appellant on default OF
the appellees and their right to insist upon ais
missal OF the appeal Is therefore not waived.
Appellant had no right to appeal without join
ing his cO-defendante with him or serving notice
of the appeal on such refused to join. 90
Iud 23y; 60 i'd, $50, 333; 60 ID, % IL i'd, 2S6)
Appeal dismissed.
APPEALs-BILL OF EXCEPTIONS.
| 9,425. Patrick j. Malloney ct al. VS.. First Ma
tlnnal Bank of Indianapolis. Marion, 9. c.
Bcknell, C.-rhis was an action by the APP
pellee upon note and 1t is objected that EVIL
dence was enormously admitted and that the
evidence does not support the finding. The
former question is not saved. The trial occurred
at the May term $780, aud at the June term the
court Overruled the motion for new trial and
granted time to file a bill of exceptions. Such
bill could not save rulings made upon the trial.
| &c Ind, 367; 80 i'd, 5699 There was evidence
! tending to sustain the finding. Judgment al
tirned.
! APPEAL-DEFEcTIvE RECoRD--NoTIcE OF AP-
PEAL.
| Joseph II. Burkham VS.. Samuel McElfresh.
Dearborn, &. G.
Black, C.-In return to a eertiorar a suhsti-
| tuted complaint was brought into the record,
| but it appears that such complaint was not on
file IN the court below and never was filed ut all,
! but was furnished to the clerk by the attorney
/ for the appellants. The cause was submitted on
May 26, 1880, on default of the appeliees, but at
! that time notice of the appeal had been given
except to appellee, McElfresh. After the return
! had been made to the certiorori, McEfresh, on
! Feb. %, 1881, moved to strike said complaint
ne frauG Grin and m I'll fDR
for want of notice of the appeal 10 the appellees,
| Perry and Gibson. Held, the complaint CON
tanned in the transcript cannot be deemed a part
OF the record, and the records otherwise so de-
! feetive as not TO show what issue was tried and
! determined. In such case no question Is pre-
sented, and II the appellees were in court the
| Judgment should be affirmed. (27 Ind, IL; Al
i'd, 476; 81 id, 297) But for want of notice of
| the appeal TO some of the appellees the submits
sion should be set aside t43 Ind, 20; 81 ID l35l
! BILL OF NATURALIZATION.
| 9,74O. Michael slussman VS.. Norman Kepler.
| Whitley G. C.
| Elliott, J.-Where there is nothing more than
| an error in the form of the judgment and there
| is a complaint emitting the plaintiff to some re-
| lief bill of review will not lie: (Hardy VS.
| Miller, this term; rs Ind, 1879 Where no ex-
ceptlon is reserved 10 rulings made curing the
| progress of trial. or on the motion for a new
trial, an action to review the Judgment cannot
be maintained upon the ground that there is
| error in such rulings. A bill of review cannot
create error. Judgment affirmed.
STATUTE OF FRAUDs-CoNTRACT NOT TO BE PER
FORMED WITHIN A YEAR.
! 10,5O3. John T. Gross vs. William Cook. Rush
| c. c.
| Woods, G. J-Appelee agreed TO furnish the
use of his stallion TO appellants mare and pay
the latter $50 for the colt upon delivery of the
colt to him when five months old. The contract
was not in writing, and was plainly
WITHIN the statute of frauds, because in
| the course of nature il could not be
| il was made. browne stat. Frauds, chap. ID;
| Hill, 12S; 81 Ind. 169; Sc i'd, 25sl Nor
/ a Z larti NJ he he Dati-
tute such part performance as TO take the case
| out of the statute. browne supra, 92S5) If
there was part performance of the agreement,
| IL was entirely to tue advantage of the appel
| liant, who had the use OF The horse without
charge, and there was therefore no fraud perpe-
| trated upon him. Judgment affirmed.
INTRODUCTORY oRDER-APPEAL.
1904. William H. Hines VS.. James T. Driver.
Hamilton c. G.
| Niblack, J.-At Il subsequent term appellee
| filed complaint to obtain IA new trial, on the
ground of newly discovered evidence since the
close of the term at which judgment against him
was rendered Upon Issue formed by general
denial, the court heard evidence and rendered
| Judgment setting aside the former Judgment and
granting new lrlal of the original cause. Appel
lee contends that the Judgment appealed from
Is in legal effect only an nterlocutory order, and
is not of the class from which an appeal may be
taken. This position cannot be maintained.
Such a Judgment is a final one, within the mean
! ing of section GAG K. s., 1881. Fireman Judg-
ments, section IS; Z Bush. 6I5; Cal, 1874; 70
Ind, 90; 70 id, 81; 50 i'd, 3O3; 45 i'd 229) The
cases o. % Ind, 1888 ana % id, So support the
motion TO dismiss, but they are against the evil
dent weight of authority and ought not to be
followed. Motion to dismiss Overruled.
PLEApING-sET- EXPERIMENTAL AND SURETY.
1864. David Gregory VS.. Samuel Gregory ad-
mnistratUr. Blackford G. G.
Howk, Jan answer of set-off, which does not
aver that the defendant held the claim offered
TO be set-of before or at the time the suit was
commenced, is bad on demurrer for want of
facts. Waterman on set-otf, 81; 90 Ind, 1872;
r 8, 1881, section 34S) In an action upon
pr0missory note against two or more de-
PENDANTS a claim IN favor of one of the
d. PENDANTS cannot be pleaded by him
as a set-oif unless he alege that he is the
principal IN the note and that his co-defendants
are suretes al Ind, 1856; 50 i'd, 2l6; 81 i'd,
270) Judgment affirmed.
P8AcTIcE-vENIRE DE NoYo,
1925 VIM Il. BRINK VS.. Caleb A. Champ.
Howard G. C.
Franklin, C.-Action by appellants to recover
possession of a lot of wheat. The court awarded
part of the wheat to the plaintiffs and part of it
to the defendants. 1t is insisted thai the find
ing generally for the defendants for a part of
the property is erroneous; that IL should have
been for the sheriff alone, who alone had right
possession by virtue of executions in favor of
the other defendants If the finding was imper-
feet, irregular or uncertain the remedy was by
motion for venire de novo, and not by motion
for new trial. t26 Ind. 20l; ~ i'd. 1874; 50
port the finding OF the court. Judgment af-
firmed.
The following cases also decided:
1882. Hamilton VS.. Reynolds. Marion c. C.
Affirmed. Black, G.
1914. Curtis VS.. Burns. Fulton C. C. At
firmed collars, j.
10,1Os. Lowry VS., Reed. Cass c. c. Affirmed.
Bcknell, C.
2lO.ll5. Reed We. Earhart. Tippecanoe C. C.
Reversed. Morris, C.
9,676. EIchholp VS.. Taylor. Tippecanoe G.
C. Rehearng denied. Morris, G.
$685.. Beard VS.. Hand. Harrison G. C. Re-
hearing denied. Black, c.
9,279. Adams City of Kokomo. Madison
C. c. Affirmed. Franklin, C.
Superior Court.
Room No. Hon Napoleon b. Taylor, Judge.
Mary Kern VS.. James Miller eJ al; complaint
for damages. Jury return verdict AGAINST the
q