The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-01
THE COURT RECORD.
supreme Court-sept. es.

NEUTRALITY-SUSPICIOUS. OF COURT AND JURY.
9,453 Jacob P. Adams VS.. Leroy H. Kennedy.
Hendricks c. C.
Howk, J.-Action DIV appellant against appel
lee, who was physician, for ma pi actice in
treating his broken leg, After the evidence had
been heard the court instructed the jury to
bring in Il verdict for defendant. In a case in
volving questions of fact. II there is evidence
tending to sustain the material allegations of
the complaint, its sutficiency is a question for
the jury. The evidence in this case is such that
If the jury had returned a verdict thereon for
he plaintiff this court could not have disturbed
the verdict on the weight of the evidence. APP
pellants motion for new trial ought 10 have
been sustained Judgment reversed
SETTING ASIDE DEFAULT-PLEADING.
.10,056 Job NJ. Nash vs. Theresa Cars ct
al. Tppecanoe G. c..
Franklin, C.-Action by appellee to have de-
fault and decree of foreclosure of a mortgage
against her set aside, alleging that she is IL Ger
man woman, unable to speak or under
edge of the tendency of the suit until after
Judgment; that if the summons was ever
served on her, she has no recollection of it and
did not understand it: that she has good de-
Tense to the action, having life lease on the
property, executed long prior to the mortgage.
II was not necessary to give copies of the ex
hibits in the original complaint, nor to give
copy OF the lease. The lease merely evil
dence OF her claim and not the foundation of her
action. The complaint shows a sufficient excuse
for not appearing ana defending the original ac-
ton. Judgment affirmed.
HIGHWAY NEUTRALITY-SUSPICIOUS. APPEAL
10699. Wm Leffel vs. Allen Obenenain. Cass
G, G.
Best, C.-In this several parties separate
ly appealed from an order of the board of com
missiOners creating a highway each filing his
bond with one of the other demonstrators as his
surety. Separate transcripts were made and
separate cases docketed in the Circuit Court
which were afterwards consolidated, after which
appellants moved to dismiss the appeal on the
ground that an appeal bond had not been exc
cuted with surety as required by law In such
case any person who has filed his re-
monstranee, because of damages sustained by
him. may appeal, and where several have filed
separate circumstances, each may appeal from
the order made upon their respective remon-
strances The order in favor of each is in the
nature Of a Judgment, and can only be vacated
by an appeal taken by the person In whose favor
1t Is made by the opposite party. Is Ind, 1909
And the fact that the remOnstrauces were not
for damages alone, but also foi ,,a.. =. public
utility, does not change the character of the ia
sue as to damages. go Ind, 537 70 i'd, 1881
The motion TO dismiss the appeal was rightly
overruled. Judgment affirmed.
NEUTRALITY-SUSPICIOUS. OF WILL.
1897. George Roy vs.. Maria E. Rowe. La
grange c. Z.
Black, O.--Where, in particular proceeding.
no process Is served on the infant defendants
and they do not personally appear to the action
the court obtains no jurisdiction of their persons
ana is not authorized to appoint guardian ad
litem for them. For such want of jurisdiction
the Judgment of partition must be reversed
as to all the parties. (26 Ind, 2S7; SO i'd, 295;
"a Id, 194.) A VIII provided as follows: az
give and bequeath unto my beloved wife all that
r4mains of the estate after paving the debts aud
tine estate is settled, for the purpose of her sun
'Jort, and that of the minor Children" etc. The
widow sold the land and received the proceeds
OF the sale. The old rule that a general devise
of real estate merely desc riding the property
without defining the interest to be taken by
the devisee gives only an estate for life is in
force in this State, though abolished in England
and many of our States. (25 md, %; 81 i'd,
49, But If the will contains any expression
in addition to the general devise. indicating an
intention to pass fee simple, courts will catch
at 1t to bear out the intention of the testatOr.
q Red. Wills, 327D A construction which will
result In partial intestacy is to he avoided
The testator expressly made disposition of all
his goods and lands, and the fact that he made
no provision for any portion thereof to go
hey ond his widow, indicates strongly his in
tention that his whole interest therein should