The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-28
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
Worn in the Local Courts.
Supreme Court-June 81.
Hon. William e. Niblack, Chief Justios

Elliott, J.-This case Ia affirmed on the author
Iy of the same relator vs.. harris OF al. Uhls
term).
NoTARIEs' POWER TO PUNISH FOR CONTEMPT.
1O.45o. Henry A. Bartt VS.. William c. Pyle.
Hammond, J.-Action by the appellee for dam
ages for false imprisonment Appellant an
swered that he was "A notary public and was en-
gagged in taking the appellee's deposition, ana
that be imprisoned the latter for three hours Ia
the county Jail for refusing TO testify in the case.
The statutes of this STATE do not empower no.
taries public to punish for contempt by fine or
Imprisonment for disobedience Of their author
fty in taking dispositions. By sec. 426 s., 1881.
they may invoke the assistance of the circuit or
Superior Court of the county. or the Judge there
of, to compel the attendance OF coerfe the evil
deuce OF an unwilling witness, Judgment al
hrmed.
VENDORS Observation-Disclosures.
1888. Hiram Foulks VS.. James Reed. Da-
Franklin, C.-James Reed sold land to his son
Richard, to be paid for In annual instruments,
and continued to reside on the land with his son.
Afterw ard, the purchase money being unpaid
Richard borrowed money of Kuhn and mort
gagged the land to secure its repayment. Under
q foreclosure of the mortgage Foulks purchased
in the land. The retaining of possession ny the
grantor being apparently joint with the grantee
was not constructive notice to an innocent pur-
chaser of any secret claim or lien of the grantor
on the land. Possession, fD order to constitute
notice, must be open, notorious ana exclusive,
evidence tending 10 snow that Foulks had actual
notice of the appellees vendors lien some
tiSuSNbu ImOntu6 DGluTc IN 6hltt " hoh ho oc
employed TO examine the abstract OF title
to the land and to draw mp the mort
an agent in the matter. and had no personal
interest in II. An Innocent purchaser of land is
not bound by notice in a previous transaction.
Sng. Vendors, 8 Am. ed, 100: "a Ind, 60)
Appellee lost his vendors lien by not giving
some notice thereof at the time of the sheriff s
sale to appellant. Judgment reversed.
TO MAKE TAXES OUT OF PER
soNAL PROPERTY.
o cOp G&o-o - ,o1 UY,ya1arss InSuropoa fam
pany VS.. Henry o. Harris. Newton G.. &C.
Elliott, IA mortgage cannot MAINTAIN an ac-
ton on the official bond of a county treasurer for
his failure to make taxes assessed against the
morrgagOr out of personal property owned by
him In the county. Such failure does WORK some
INJURY to the merfgagee, ny adding TO the our
dens born by the nortgaged land, thus iesSening
the value of the security, but the injury is indi-
rect and remote. In general, a public officer is
the particular duty is owing. 1t is not
enough to show a general public duty or
interested. Cooley Torts, 39f, n. /; sherm, 4
Red. Neg section Ia; 8 Mass, 25l; 3 Den, 232:
17l~end., 554: IL Barb. 1875: 176, b. N s. 1874;
1o0U s 1876; 81 Pa. St, 252; 10 Mo, 143; IS Ind,
1923, 1922 A departure from these settled princi-
pies would leave no rule by which the liability of
Rureties on official bonds could he measured.
Everything would be involved in uncertainty
and sureUies might be harrassed by actions for
canses never contemplated. 1t Is plain that the
duty OF collecting taxes is imposed upon the
treasurer for the benefit of the public and not
for the benefit of individuals. Judgment
affirmed.
Observation-Disclosures LAw-LIEN.
c. tGG c. mary ''O'' '''''' D''O
Best, C.-Where a demurrer is sustained to the
answer 1t reaches the complaint, and II the lat
ter is insufficient the ruling upon the demurrer
is erroneous whether the answer was good or
bad. tS5 Ind, 3o4; as i'd 4Ssl
act OF April 8, 1881, provides that a commits
sioner of drainage may bring suit in the name of
the State for his use to enforce a lien upon any
land for the amount of benefits assessed upon
1t. But such assessment only becomes "A lien on
the land from the time that notice that the work
has been established by the court is recorded in
the recorders office. Unless such notice has
been recorded no lien attaches. An averment
In the complaint that the assessment was re-
corded ia not sufficient. Judgment reversed.
SPECIAL NEUTRALITY-SUSPICIOUS. CONCLUSIONS.
s.7O9. John Kepler VS.. Benjamin COnkling.
Henry c. G.
Bicknell, Con petition for rehearing the
appellee's claim that. Notwithstanding the
wrong conclusions OF law, the Judgment was
right upon the special findings. and there
fore ought not to be set aside. But
the special findings were defective.
as shown In the principal opinion
In such a case, when the conclusions
always send the case back with Instructions TO
stats proper conclusions, but when substantial
Justice requires IL Will award q new trial. Re-
hearing denied.
ToRTIoUs SALE OF wHEAr-coNvERsIoN.
lO,013. David L. shearer We. David Evans.
Huntington c. c.
Black, C-lu an 0GblOn Tor conversion OF per-
sonal property the fact that one Of the defend
ants was the employe of the other and resided
in another county of this State, did not deprive
the court Of Jurisdiction of the former. tSec.
3l2 r. s.. 1881 The facts specially found
showed that Holdridge, a hired hand of the
plaintiff, during the ~latter's absence, wrOngfully
took a lot of the plaintiffs wheat and sold it to
the defendants at their warehouse, they having
no notice that the wheat was not H0ldridge's.
The defendants mixed it with other wheat and
sold it in their trade. Held, The taxing OF rho
wheat by Holdridee was iarn-"E ana ne could
being tortious those who bought from him did
so as their peril. Tue property still belonged to
the plaintiff, and the purchase and sale of it by
defendants and denial of the PLAINTIFF right to
1t constituted a conversion of the wheat. l23
Ind, 3ll; "a i'd, l4l; Cooley on Torts, 4511
Judgment affirmed.
DRAINAGE Observation-Disclosures.
10,076. Mary r. Scott VS.. Lyman Bracket.
Fulton C. C..
Best. C.-The drainage act OF Apri, 8. 1881,
makes no provision for personal notice. The only
notice required Is constructive. With such
notice a lien may be fixed upon the land affected
by the proposed work. In order to acquire the
lien the provisions Of the statute must he pur-
sued, especially those which confer Jurisdiction.
Without notice, as required by tho statute, the
court has no power TO refer the matter to the
commissioner or drainage, nor can it do so
without an affidavit that such NOTICE hns
been given. Where a lien Is sought to be
the requirements ofths statute must he observed
in order TO authnrize the court to praceed and
NIX the lien. 10 Fed. R., S91; 27 Cal, 293;
- n. Y, 43; 8 i'd, 1881 In the absence OF an
affidavit the court has no power to make the
reference, as Il cannot otherwise appear that
the notice required by statute was given. Such
affidavit, when defective, cannot he made good
by an additional affidavit flied after the indg-
lnent OF continuation. Cooley on Limitations,
1855: 3 Ind. 5i4J The eighth section OF the aer,
which provides that the same shall be liberally
construed is not applicable to such PROCEEDINGS
as confer jurisdictiOD, and the judgment Is not
conclusive that due notice was given. The
Legislature possesses no power to deprive any
person of such rights as are involved in these
proceedings without notice. {S3 Ind, 563)
And that which it. cannot do directly 1t cannon
do Indirectly by providing that a judgment shall
be conclusive evidence Of jurisdicti0nul facts.
His Honor reviews the arguments against the
constitutOnality of the act and finds 1t con-
stituttOnal. Judgment reversed.