The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-21
THE COURT RECOED.
supreme Court-aIay IS.
c1rEEs-L1AB1L1rY FOR CHANGING GRADE.

rated town of Wabash had established q grade
of the streets and they had been graded and i'm
proved accordingly at the expense OF the own
ers OF admitting property. Afterward the town
was Incorporated a city un der the act of 1865
greatly to the injury OF the plaintiffs property
The question is whether the city could thus
change the grade OF the streets without the pay
ment to him OF damages. The pFovl5o In section
- OF the act OF 1867 only makes cities liable for
changing the grade where the city authorities
have once established the grade. (34 Ind, lao;
so i'd, 1911 At the time of the passage of this
provisO the law was the same In relation to both
towns and cities, and towns were not, as they
are now, liable for SO changing the grade OF the
streets. The prOvIso applies to cities alOne. If
the Legislature had intended to make it
apply to grades once established by The town
authorities they would have included that In the
proYiso, and the fact that they did not do SO is
prlma faele evidence that they did not so intend.
Under the statute, therefore, the city is not liza
Bile for consequential damages resulting from
changing the grade which had previously been
established by the town. Judgment reversed.
sEToFF-FoRMER ADJUDIcATIoS.
7,179. JameslB. Rynearson VS.. ottmus Park
hurst. Cass c. q.
Franklin, C.-Appellant sued the appellee, who
filed set-of. To this the appellant answered
that the identical claims of the defendant were
tried and determined in former action between
the same parties in the Knox Circuit Court, and
Judgment rendered In favor of appellant, which
was due and unpaid. This answer constituted
good defense to said set-of, End the demurrer
to 1t was enormously sustained Judgment re-
versed.
TON.
9,s23. Meredith Walker VS.. Moses Heller.
Henry G. C.
Best, C.-Appellee sued appellant on a note In
the Hancock Circuit Court. Appellant answered
that he signed the note as security Cor Marsh
upon the agreement that several other persons
should sign with him, and that In violation of
this agreement Marsh had delivered the note
without their signatures to the payee, who took
1t with notice of the facts. The court made q
finding for the appellant, but afterwards per-
United the appellee to dismiss the action. From
this ruling appellant appealed TO this court, the
Judgment was reversed, and the court below in
strueted TO enter Judgment for appellant on the
finding, which was done. But while this appeal
was pending the appellee filed enother suit on
the note in the Hancock court and took change
OF venue to the Henry Circuit Court where he
obtained a Judgment in his favor. This action
was brought by appellant to enioin the coec-
ZION or the Judgment so obtained. 1t Is well set
tied that court OF equity will restrain proceed
ipgs upon Judgment at law where its enforce
ment is against conscience and 1t has been re-
covered by an unfair advantage. The facts al
legged in defense Of the first action show valid
defense and the finding of the court established
their truth: This finding was not set aside in
any MODE known to the law, and so long as 1t
remained IN force it entitled appellant to Judg-
ment which, when rendered, was a complete
defense to the note The finding did not pre-
vent the appellee from bringing another action
on the note, but he could not, by pressing such
action to Judgment at a time when appellants
defanse was unavailable, escape the cOnse-
quenees flowing from the rendition of judg
ment on the finding. To permit the enforce
inequitabIe. rs Ind, 46j The fact that
the appellant has a good defence. and that 1t
was not available entities him TO injunction.
70 Page, All; AZ N. H., 5O7; 3 Johns, oh. $50;
Ia, SO) Nor did the failure of appellant to move
to stay proceedings in the second action until
his appeal was determined in the first constitute
such negligence precludes him from maintain
ing the action. The complaint made good
cause OF action. Judgment reversed.
IoN-coMPLAINT-BILL OF EXCEPTIONS.
9,ll5. Charles F. McIlvain VS.. Phoebe A.
Emory. Marion O. G.
Morris, Ca complaint by an unmarried wo-
man for her own seduction, which AYERS that she
was of good reputation for chastity, and the de-
PENDANT. under promise OF marriage. seduced her
and had Illicit carnal connection with her, is not
bad for the want of an express averment that
she was damaged by such seduction. The eOnclus-
ion OF law from the facts averfed is that the plain
tiff was damaged. 90 Ind, 566l The cause was
tried at the February term, 1880, and con-
tinued. on motion for new trial, until the fol-
lowing May term at which term the motion was
overruled aud time given for fling bill of exeep-
tiOns. The bill so filed did not save exceptions
to rulings made during the trial. t73 Ind, n; I
76 i'd, 1l0.) In order to become a part OF the
record, the Instructions refused and those given
must be filed in the court. as Ind, 1l01 Judg-
ment affirmed.
ATToRNEY-IMPRopER CoUNsEL-EvIDENcE.
9,so4. William H. Hession VS.. Sophia Heck.
Huntington c. q,
Morris, C.-The appellees complaint alleges
that she was the administratrix of her deceased
husbands estate, and employed appellant as her
attorney to conduct the settlement of the estate;
that the intestate died the owner of forty acres
of land and, there being insufficiency of per-
sopalty to pay the debts, she, by order of the
court sold ten acres of the land for $400, which
still left due other creditors than herself 1888 49,
that appellant advised her to advance the
money to said amount ont of her estate,
and that she could have an additional interest in
the real estate set off to her to the amount I'd
vanced On the trial the appellee was permit
ted, over the objection, OF appellant. to testify
that the appellant did not advise her at all to
her interest in the ten acres of land sold. This
testimony was enormously admitted. The CON-
palnJ does not In any way charge appellant
with negligence or improper conduct in relation
to the sale of the ten acres. The complaint al
leges that the ten acres we're sold for S400 and
the verdict is for Sl33, indicating strongly that
it was given for one-third Of the sum for which
the land was sold. Nor did the sale of the ten
acres injure the appellee. She is entitled to one
seized, aud If the ten acres were sold free from
her claim she would be entitled to snch portion
of the residue of the land as would equal one
third of the whole. Judgment reversed.
MISUNDERSTANDING PASSENGER.
lake Erie, etc., Company VS.. Alvin f. Fix.
Elliot, Jon petition for rehearing. 1t is
urged that the court was mistaken in stating
that the passenger was guilty of no wrong and
was net without evidence to his right to trans.
p0rtation. The appellee had purchased and
paid for a ticket which entitled him to be car
ried from Ambia TO Boswell and back, and the
agent OF the company returned to him the part
OF the ticket that the agent himself swsars he
thought was evidence of the passengers right
to return This warran ted the Inference that the
passenger was not without evidence of his right
to transportation. The evidence clearly shows,
stated in the original opinion, that the
conductor OF the train concealed in the
engine, to escape arrest by constable, and the
train was in charge of a brakeman. Petition
overruled.
The following cases were decided May 10:
David NJ. Bartlett va. Henry KOohell. Warren
c. @. Affirmed Howk, j,
Levi Pipber VS.. Nelson Fordyce. Dayiess c.
c. Affirmed. Elliott, j.
stoughton J. Fletcher VS.. Julia Fletcher. Ma
rion G. G. Reversed. Nlblack, j.