The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-15
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Saturday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme COurt-Oct. IS.
Hon. W. E. Niblack, Chief Justice.
ma crrCr p1ruz

a paper is not brief (68 ind, 6; 20 i'd, 1919
Judgment affirmed.
UNIFIED BILL OF EXCEPTIONS.
1o,608 Cornelius 10y vs., Wilson 10y. Put
Howk, 1.-The bill of exceptions was signed
by the judge within the time allowed therefor,
but the record falls to show that 1t was filed IN
the court below. II does not become part of
the record unless filed. Or. g., sec. 629) Jadg-
ment affirmed
COVENANT OF NEUTRALITY-SUSPICIOUS. TAXES.
9,145. Allen Rinehart VS.. VIM. V. Rinehart.
Clinton C. C.
Franklin, C.-Suit by appelIee to recover de-
nnquent taxes paid by him for lands conveyed
by appellant by warranty deed. Answer: That
with tie deed the parties agreed that the war
ranty should only extend to cOnveyaDces. mort
cages or other encumbrances made or executed
by appellant, or acts done suffered to be done
by him. That he had other property
made, and that their payment by appellee was
voluntary
Held: The suffering of delinquent taxes on
the land, and permitting them TO remain after
the execution Of the deed, was a breach of the
warranty, and appellants obligation to pay
them was not released by the cOntempOraneous
written agreement The fact that appellant
had enough other property TO pay the taxes did
not amount to payment and removal of the en-
eumbrance, aud In protecting his title by paying
the eneumbrance appellee was not volunteer.
Judgment affirmed.
MURDER IN SECOND DEGREE-MALICE.
10,7l5, Arthur Brooks VS.. the state. Wayne
Y, q.
Niback, G. J.-AppeIant killed the seducer Of
his wife, and in its thirteenth instruction the
court, after specifying certain acts and COM
nunleaJloBs of his wife TO appellant, told the
jury that, If impelled thereby, appellant, in the
heat of passion, sought the deceased ana killed
him, such killing would be murder in the second
degree rms instruction was erroneous, because
IL Ignored the ingredient OF malice III making
out case of murder In the second degree.
homicide must be perpetrated purposey and ma
liciously to make 1t murder in the second de-
s, l,4O Under
practice the court may sum up
the evidence and submit Hypothetical cases to
the jury, but to do either wen requires great
care. 1t is hazardous proceeding for the court
to attempt any comments upon the evidence.
The safer way is for the court to announce gem
eral principles applicable to the salient points OF
the evidence, and leave all differences from facts
apparently proven, or which the evidence tended
to establish, to the jury. (23 Ind, 2l7; &c i'd,
1856; 4S i'd, 1853; 50 ill.,, 105; Thompson Charging
Jury, 68) Judgment reversed.
PLEADING-JUDGMENT
500. Lucinda Powell VS.. VIM. H. Bunger.
Dearborn C. G.
Black, Con petition for rehearing appellees
counsel urge that il the second paragraph of the
complaint was bad, yet, the complaint sets
forth TWO separate causes of action, the judg-
ment should be reversed only far as it was
based upon the second paragraph and affirmed
as to the cause stated i'll the first paragraph. If
the court erred i'll overrulIng the demurrer to
into the Judgment. It cannot be said
that Judgment against the defeud-
ants on the first paragraph was
any more authorized bys the verdict,
which was general, than Judgment on the
second paragraph. The Judgment cannot be
severed so that We can say that definite part OF
it is affected by the error ana the remainder is
unaffected thereby. Petition Overruled.
NEUTRALITY-SUSPICIOUS.
10.930 Joseph H. Plummer VS.. Tbs Farm
eTs' Bank. Morgan G. @.
Best, C.-Io complaint by the assignee of a
note, the maker answered that the note was
given for real estate, the title to which was war
ranted, and that he was obliged TO pay off
tain encumbrances Reply, that before the as-
signee purchased the note he inquired OF the
maker if it was all right, who answered that he
had no defenses to it and would pay it in a few
days. This amounted to a promise to pay the
note, and such a promise estops the party maxi
ing 1t from asserting any defense US against the
foreclosure, whether the maker was was not
ignorant of his defense at the time the promise
was made. III Ind, Lip; 16 i'd, 284, 344;
81 ID, 49, 28 Ala, sd Judgment affirmed.
NEUTRALITY-SUSPICIOUS.
1856. Al0nzo Observation-Disclosures VS.. Lucinda
Vanwalkenberg. Lake c. Q.
Hammond. J.-Aetion to resist the probate of
will. The verdict OF the jury "that said
paper-writmg In question, which was read to the
jury, is the last Will and testament of said Mar
tina VanwalRenberg. Under the evidence, the
paper-writing mentioned as having been read TO
the jury could only refer to the alleged will,
and The finding that such paper was the last will
of the testatriX was the same finding that
it was duly executed, and not invalidated from
any of the causes set out in the complaint. A
verdict is sufficient if it can ne determined from
1t what the finding is upon the issues Il Works
Prac, secs. S37-8O A deposition may be sup
pressed after the commencement of the trial, if
any matter, not disclosed in the depositions APP
pears which is sufficient to authorize such sup
preston. (R. s, see. 1881 And where the
record fails to show for what cause the dep0si-
tion was suppressed the presumption will be in
favor of the correctness of the ruling. AZ Ind,
CO., The court charged that no medical experts
had testified in the case, and that they must
testStrix from the testimony est t' Of her neigh
bors. Drs Bliss and Brown, who were attend
ing physicians in the testator's last illness, did,
in fact, testify, and the effect of the instruction
was to withdraw their evidence from the jury,
to impress them with the belief that, as a
matter of law, 1t was entitled to no more weight
than that OF non-eXpert witnesses. The fact that
the opinions OF the doctors cOnfcted did not de-
prive the jury of the right to consider and weigh
all the evidence. Where the free agency of a
testator is destroyed by undue influences, it is
immatera whether the influence was eXerted
by the beneficiary or by others without her
knowledge. The Will, in any event, is invalid.
Us Am. Dec, 1922 Judgment reversed.
PRAorIcE-wEIGHT OF EVIDENCE.
1o,524 Lemuel Weble VS.. Jacob zeller. Mad
Morris, C-suit by appellant upon an award
The only question presented is to the suf-
ficiency of the evidence to support the finding.
There ia evidence legally tending 10 sustain the
finding, and 1t cannot he disturbed, even though
the weight of the evidence should seem to be
against 1t. TO Ind. 73.} Judgment affirmed
PLEADING-PARTIAL REPLY.
10,779. Charles BreidesJ VS.. Herman Krue-
ger. Noble c. G.
Black, C.-Appelant sued appellee as surety
a lease. Appellee answered in six para
graphs and there was rule TO reply. Appel.
liant replied TO the first and sixth pragra phs of
answer, but there was no reply to the fourth,
which different from the Others, and was a
good plea of payment. Appellants failure to
reply TO the fourth answer was admission
that the defense therein set up was trne. (2l
Ind, 1856 r, s., secs. 357, 1881 AS appellant did
not ask for a trial or object to the rendering of
Judgment vii hout one, there was no waiver of a
reply He cannot he heard to plain because
his sufficient reply to other defenses was held
Insufficient. One full defense is enough to de-
feat an action, and il it be established errors not
affecting it not cause for reversing the judg-
ment. Judgment affirmed.
The following cases were also decided, alb
stracts of which will appear on Tuesday:
Nathan Mccoy VS., Jacob Monte Jay G. c.
A Affirmed. Basf. @.