The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-10
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Records Yesterday.
Full Abstract of the Opinions Rendered by
the Judges of the Supreme Court
Work in the Local Courts.
Supreme court-Nov. Q.
IIOn. " Il. NIDIaCh, OHItI UsIIoV
DEFECTIVE ALLEY-NOTICE.

DEFECTIVE ALLEY-NoTICE.
1o,7s1. City of Indianapolis Malinda L.
Murphy. Marion G. Z.
collars, J.-ActiOn by appellee to recover for
personal injuries caused by defective alley.
The evidence does not make "A strong case, but
IL tends TO sustain the allegations of the COM
plaiut There was testimony that the defect in
the alley had existed for six weeks prior TO the
injury. This was sufficient TO charge the city
with constructive notice. (73 Ind. 367: "A i'd,
37S S6ld, 4l50 As the record does not con-
tam the instructions given by the court it can
not be said that 1T erred in refusing the instruc
tons asked by appellant, III Ind, III; 81 i'd,
3O7) Judgment affirmed.
>PRocEss-TEN DAYS NOTICE.
9, 1875. Frank Reigelsberger vs. John stapp.
Elliott jim this case the summons was
served on the defendant on January and on
the lotb day of the same month Judgment by
default was entered against him. This service
was IN time. % Ind, 6, 236; 8 i'd, Sol; rs Id,
422D Judgment affirmed.
SURETY OF TIE OBSERVATION-DISCLOSURES.
10,9O7. Ivan Arnold VS.. the State. Porter
c. c.
Hammond, i'm prosecution for surety OF
the peace 1t Is not competent for the defendant
TO prove that the prosecuting witness cir
culating scandalous stories concerning the de-
fendanC's wife. The issue to be tried in such
case Is whether the complaining witness has
just cause to entertain the fears expressed In
his affidavit and such proof would rather tend in
the opposite direction. Snch a proceeding is
not criminal one, and the rule of reasonable
doubt does not apply. (49 Ind. BAL; 20 id,
l41) A 1alr pFepOndeFance OF the evidence
showing reasonable probability that the ac-
eused In tended to commit the injury appre-
hended Is sufficient for the purpose OF requiring
from MN rec0gnlzance for his good behavior.
In such case the jury must receive the law
given by the court. Judgment affirmed.
cT-REsCIssIoN-sTATU QUO.
1888. O'Brien Gwynne vs.. John Ramsey.
Shelby G. c.
the resclssion of a contract may be shown by
Their acts as well as by evidence tending
10 prove an express Fescission. When the resets
sion 10 shown, either by express agreement or
by the acts of the parties closely indicative
Thereon, an action will lie to recover whatever
may nave been paid on the contract. 40 Ind,
%; 20 Ind, 434.) Generally contract cannot
be rescinded by one party uuless both can be
stored to the condition they were in before the
contract was made and where one of the parties
mas had the possession, use, and occupation of
land under contract of purchase, for more than
Tour years he cannot consider the contract
reselnded because of non-pertormanee by the
other party, but must do all the contract Obliges
nam TO DO and seek his remedy in damages. (32
Iowa, 101; "a n. H. 278 Is Ind, 1869; 10 i'd,
93; Chit Con- Acknowledgement reversed.
APPEAL-PLEA IN BAR-RIGHT TO TWO ACTIONS.
1852: p, Fit. W. & C. Ry. Co. vs.. Rhesa Swim
ney. Allen e. C.
Elliott, J.-Appellee pleads in bar Of the APP
peal that before the commencement of the ac-
ton In which the judgment was rendered from
which the appeal is prosecuted appellant had
appropriated land; that an appraisement was
made exceptions filed thereto, trial had and
Judgment for appellees testatOr in a sum great
~ In excess OF the appraisenIent. On
appeal to this court the Judgment was reversed,
after which appellant dismissed the eondemna-
ton proceedings. ThereupOn appellee began
this action, ana recovered the Judgment from
which this appeal is prosecuted. That appellee
appealed from the order Diminishing the CON
demnatlon proceedings, TO which appellant lied
a. plea in bar, alleging the recovery of the judg-
ment In this cause; that it for the same
cause of action involved in the condemnation
proceedings; that the plea held good on
demurrer, and appellant had Judgment thereon.
These facts show neither an est0ppel by record
nor en- pals. II the two actions are not for the
same cause, the error was in sustaining appel
lants plea TO appellees appeal. II there was
error, then the remedy is to be sought by relief
from that Judgment Appellee had no right to
TWO actions for the same cause, and by seeking
TO restrain one OF them appellant did not admit
the validity of the Others The demurrer to APP
pellees plea must be sustained.
ADMINISTRATORS NEUTRALITY-SUSPICIOUS.
9.763. Jane T. Day VS.. Leo Norland. Shelby
Black, C-Judgment on bonds payable TO the
state bind the real estate of the debtor from the
mencement of the action. (Sec. 609 K. 50
The Judgment On such bond binds the real
estate of the judgment debtor by relation. The
statute makes no reservation IN favor of pur.
chasers or mortgages in good faith, for value
and without notice. One who takes a mortgage
on sucn real estate after the commencement OF
the action will take subject to the Judgment
afterwards rendered therein. And where the
action was begun in the name of the successor
In the trust and the complaint was afterwards
amended so as to make the plaintiff the State on
relation Of the succeeding administration such
amendment. Judgment affirmed.