The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-02
THE COURT RECORD.
Supreme Court-March 81.
Hon. william A. Woods. Chief Justice.

1854. State ex rel. Daniels vs. Jacob L. Bieler.
| Marion G. G.
| Best, Conformation in the nature of a quo
| warranto to GUST the appellee from the office of
| recorder of Marion county. Where such an in
| formation is by any other person than the prose-
cutting attorney 1t must aHege the eligibility OF
such person to the office. (6l md, 1922 The
Information neither AYERS that the relator was
eligible any facts showing his eligibility.
| The averment thathe "has personal interest in
the action" is a mere conclusion from facts not
stated, and is not sufficient. Judgment affirmed.
OBSERVATION-DISCLOSURES.
| 10000. Andrew L. Robinson vs.. CITY of Ev-
| ansville. Vanderburg G. g.
| Woods, c. faction by appellant for damages
for the burning of his house by the alleged neg
charged was that there an
Insufficient amount of hose at the
| nearest hose-house TO reach the fire from the
nearest hydrant; that the horse which hauled
| the hose cart was balky; that the hose WAS old
and worthless, the hydrant out of repair and the
| fremen unfit for duty by reason of intOxlcatlon
| This case is net dstnguishable from 30 Ind,
| 1S7. The damages are remote and cannot with
certainty be attributed to the alleged negligence
of the city in failing to extinguish the fire which
destroyed appellants house. (Dill. Muntc. Corp.
sec. 977; 2 Am; r., 1868; G i'd, 1876; i'd, 272; ID
| i'd, 4G; 23 i'd. 545.) Judgment affirmed.
| APPEALs-FINAL JUDGMENTS.
| 9,939. Mary A. Pfeiffer vs.. Albert g. Crane
Jackson c. G.
Bicknell, Gas a general rule, appeals may be
| taken TO the Supreme Court from all final judg-
ments. final Judgment is the ultimate deter
mination OF the court upon the whole matter
| in controversy in the action; order of
| the court made in the progress CT the
cause, requiring something to be done or OBJ
served but not determining the controversy, Is
| an lnterlocutOry order or Judgment Powell
| App. Prac., SD The order in this case sub
| stantially rejected a guardians report and dl-
rected him TO make another in accordance with
| findings by the court. This was not final
| Judgment from which an appeal Will lie. 90
| Ind, 354; 81 i'd. sos; AZ ID, 584; 90 i'd, 46O9
| Appeal dismissed.
| PLEADING-CRoss-Co OBSERVATION-DISCLOSURES.
| 1886. James W. Cookery VS.. Henry c.
Duncan. Monroe G. G.
Elliott, J.-Where, in an action to quiet title,
| the crOSs-cOmplaint contains correct descr1p-
ton of the land, emitting county and State, but
prefaces the description by the averment that 1t
Is the real estate in the complaint mentioned,
the description sufficient The reference to
the complaint is merely to identify the proper
ty, net for the purpose of supplying a needed
statement of fact. demurrer for defeat
OF parties Is not snihclent IN the mere
words of the statute. 1t must specifically point
out the defect Works Prac. 493. The Legis-
lature has the undoubted power TO make valid
judgments whose only infirmity is the omission of
the judges signature to the record of each days
proceedings. us Ind, 25S; Cooley COnst. Linn,
4 ed, 460) Signing record, bill of excep-
lions or the like is not a judicial act Judgment
affirmed.
RETURN DAY-INDoRsEMENT ON COMPLAINT.
10,24s. James S. Johnson VS., Marion Lynch.
Jasper G. @.
collars, 1.-THE plaintiffs attorney Endorsed on
his complaint "rhe clerk will issue process
and fix in the summons Thursday, April 6,
1882" If the Endorsement on the complaint is
sufficiently specific to inform the clerk of the
day on which the defendants required to appear,
the provisions of the statute will be complied
with. The day fixed could have been, under
the statute for no other purpose than the
return day of the summons, or the day
''on which the defendant shall appear" There
was no error i'll everything the motion to set
aside the summons and service, az Ind, 363.)
Judgment affirmed.
PRAcTICE-oRDER TO REMAND CAUSE
10000 Joseph D. Sidener VS.. Jacob Davis.
Decatur c. G.
Woods, C. Ut is claimed the court erred in
resembling order demanding the cause to the
Bartholomew Circuit Court for trial. The error,
if any, should have been made a cause for a new
trial. The same rule is applicable to such orders
as to refusing or granting change OF venue.
IN Ind 1887 Besides, the bill of exceptions
does not show the order, nor for what cause nor
when 1t was made. Judgment affirmed.
OBSERVATION-DISCLOSURES
9Ss7. Edward Tomlinson vs.. Bricklayers'
Union. Marion $. c.
Howk, J.-Appellants alleged that in 1867 they
and Others formed association, known as the
BTicklayers' Union of Indianapolis, for the
purposes Of mutual relief, etc; that in April,
1879, the funds of said association amounted
to IS 900, belonging to the members, as joint
fund, and the membership amounted to over
500; that the association continued until April,
1879, when few OF its members. twenty IN
number. secretly abandoned and pretended to
dissolve said corporation to form new one, and
unlawfuily and wrongfully converted said fund
to the use of the new corporation and refused TO
pay the same to the old association; that appel
lee had forfeited its charter by refusing to allow
them to participate IN the new organization, etc.
The complaint shows no cause of action. IL is
not alleged that the old corporation was dis
solved in any legal manner, and II cannot be
said that the secession of twenty members
would work the dissolution of a corporation
having 500 members. If the old corporation Is
still a legal entity the right of action for the
wrong ful conversion is in such corporation, and
not in any of its members, for the money and
property of corporation belong to it and not to
it's individual members. Judgment affirmed.
LIEN FOR TAXES-LIMITATION
1925. Abner III. Bowen vs. Peter Striker.
Carroll g. c.
Black, C.-Action by appellant to quiet his
title to lands purchased at tax sales. ana to
cover the amount paid by him for taxes, etc. An
swers pleading the statute of limitations of five
years were held good. The complaint failed to
I show good cause of action to quiet title, but
was sufficient for the enforcement of a lien upon
the land, as provided by sections 229, 256 and
257 of the act OF 1872. In respect TO the right
of purchaser at taX-sale, whose title is invalid,
to obtain the enforcement of lien upon the
land under sections 256 and 257 the limitation
is not five years, provided in section $50 of
the act, but fifteen years, under the general stat
ute of limitations ISL Ind, 491) The answers
were therefore insufficient. Judgment reversed
FRAUDULENT REPRESENTATIONS PLEADINGs-
PROOF.
9,s61. Cyrus Lee Hunt VS.. Hamilton Blanton.
Hendricks @. c.
Bicknell C.-Appellee's complaint alleged an
exchange of land with appellant, who repre-
sented that his land, in Morgan county, was we'll
set with oak timber and was worth $500; that
one of the appellees went with appellant to see
the land, and the latter employed a confederate
to show them other land than his, which was
finely timbered, representing that the same
the land.owned by him; that in fact the land
sold waspo0rly timbered and of little value, etc
Five months elapsed after the execution of the
deed before the offer to rescind the contract. AS
a cause of action rescind the complaint was
not good there being no averment of any facts
which could make such delay reasonable. Is
East, 449 IA Ind 40; So i'd, SCI; IS id, 80
The court found that when the parties went to
see the land before the purchase they were
able to find it, and appellant employed strang-
or, who professed TO know its location, to guide
them to the land, and that there was no inten-
ton on the part or appellant to mislead
the appellee. although portion of the
land shown them by the guide was not in fact,
appellants, and was NOT so valuable as it would
have been if as represented. Upon this finding
the court concluded that the plaintiffs dam
aged, and that the measure of their damages