The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-02

ceaSeus II iHle Is IdSN. inc lleHuiuRS
fail TO show it, On the return of the ease
the parties may reconstruct their pleadings
so as to show the fact thus assumed, aud then a
question may he presented which cannot be de-
cided in the present condition of the pleadiugs.
Petition for reheariuS overruled.
DECEDENTs' Observation-Disclosures
9,63s. Nianeta Harcourt VS.. Daniel W. Har-
court, Marion C. Z.
against the estate of John Harcourt note
executed by said John TO her. and payable al his
death out of his estate. The court permitted the
administrator and another witness to testify MS
to declarations of the decedenU i'll reference to
the note, made after its execution and in the
absence of the plaintiff. such evidence was not
competent. Judgment reversed.
CITIEs-IMPRoPER GRADING OF STREETS.
0,I81. City of North Vernon vs. Mary Voegler.
Jennings G. c.
Best, C.-The aprellee's complaint charges that
appellant so graded certain street as to collect
in an artificial channel the surface water from
the territory adjacent to said street, which did
not before How upon appellee's property, and
to pour the same upon her lots to her damage.
For this wrong the appellant was liable. Us
Ind, 24lD Aud in such IA case 1t is no justifca-
ton OF the wrong to show that it was done by
grading street in pursuance of AN ordinance
parsed for such purpose. Judgment affirmed.
BILLS OF xcEPrIoNs-PRAcrIcE.
1850 Rebecca Jones VS.. Fernando Jones.
Madison c. c.
Morris, C-Tnis case was tried at the June
term, 1882, and the record does not show that
time then given 10 file a bill of exceptions.
which, however, was filed in vacation. The bill
could be filed in vacation only upon the authOri-
ty given by the court for the purpose when In
session, and the authority thus given must ap-
pear by the record. not by she bill of exceptions
The judge cannot make up the rec
vocation. to- Ind, 326 ~ i'd, lib; 70 i'd, 5O4 }
The trial, iiHuIng and judgment fixing the rights
of the parties, was had AT tho June term. There
was no motion for ii new trial made at that term,
but at the October term appellant made IL mo
ton for new trial, which was overruled. Under
section 56l, r. s., 1881, the motion for "a mt W
trial must be made at the term at which the de-
cision or finding is made. The motion was, there
fore, made too late, and presents no question in
this court. Judgment affirmed.
FRAUD-RIGHT OF TRIAL BY JURY.
1O,l37 Nelson Clouser vs.. John NJ. Buchanan.
Franklin, C.-Action by appellant to set aside
an order made by the Wells Circuit Court. The
the estate of James NJ. Ruekman. to surrender to
himself, individually, large amount of
personal property belonging to said estate,
in discharge of two mortgages which he
claimed to hold on. said property. but
which appellant alleged were without cousidera-
tion and fraudulent. Appellant demanded a
trial by jury, which the court refused, The
questions OF fraud in The execution of mortgages
and in procuring the order, were questions of
fact emlnently proper to be submitted for Gecs-
ion to II jury That the case Is connected with
the settlement of decedent's estate does not
change the rule III Ind, 80; 81 id. 2S4; Gl Id.
392; "A Id, $500 Judgment reversed.
The following cases were also decided:
Elizabeth Fitzpatrick VS.; William Papa. Allen
G. c. Affirmed Elliott, J.
Harrison Dlllman VS.. James Dillman. Monroe
c. C. Affirmed. Black, G..
Standard OIL Company VS.. 1.emuel Bachelor.
Wells C. G. Reversed. Niblack J.
Lafayette, etc, Gravel Road Company VS..
Mary Vanclaim. TppecauOe c. G. Affirmed.
Black, 9.
Sarah Kits VS.. William d. Wilson Ripley c.
g. Reversed. Znllars,J.
Hebron Gravel Road Comnany vs. OLSON Har-
vey. TippecanOe G. c. Affirmed. Bicknell G.
Thomas j. NiohOl va. jesse l.. Henry. Madison
c. G. Reversed. Best. g.