The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-03
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record, Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme Court-March 81.
Hon. William A. Woods, Chief Justice
OBSERVATION-DISCLOSURES


MISUNDERSTANDING
9,303. George W. Hunter vs. William g. Rice.
Ripley c. C.
Morris. C-Appellee's complaint alleged that
the note sued on was given for the balance of a
note of $1,000 described i'll mortgage executed
prior thereto. the answer averred that all the
notes mentioned in the mortgage were given for
the balance of the purchase money remaining
unpaid The reply averred that the note was
given In settlement of all the notes described In
the mortgage. This was but an admission OF
the TACT averred in the answer and does not con-
stitute material departure from the complaint.
The purpose of the averment in the complaint
was TO show that the note was given for part
OF the original debt secured by the mortgage,
ana that the mortgage stood as security
Tor IT. The reply also shows this. and there
1ore supports the complaint Under the law
as 1t was ut the time of these transactions, ten
per cent. was not Illegal interest, and compu-
tatlon OF the interests and payments, as shown
by the pleadings, fails 20 disclose any usurious
interest Judgment affirmed.
DEATH OF GUARDIAN-sURETY ON BOND.
9,244. Andrew j. Higgins VS.. James E. Smith.
Shelby G. q.
Franklin, C.-The character in which n party
sues Is admitted, unless denied under oath. ga
Ind, 163, 30 i'd. 1867 Upon the death of a
guardian, his trust terminates. The funds be-
longing to the wards become due them, and the
sureties on his bond, with the estate OF the guar
dian, are responsible for their payment An
allegation that the guardian had not paid to
the wards. and that his administrators had not
paid to them, shows a sufficient breach of the
bond. Petition for rehearing overruled.
MISUNDERSTANDING JUDGMENT IN CRIMINAL
CASES.
1910 williamsonwright VS.. Michael D. Fans
Ter. Cass c. c.
Elliott, faction for malicious prosecu-
ton. On the trial the plaintiff IN
troduced in evidence the record of
justice showing his acquittai in q prosecu-
ton for larceny. The Justice testified that the
Judgment was not entered of record for nearly
Two years after it was pronounced THIS fact
did not render the Judgment void. The decisions
which hold that Justice must record his judg-
ment in civil cases within four days do not apply
TO criminal cases Independently of statute
justice may at any time enter his Judgment of
record. III Me-, 377: IL East, 49, In criminal
cases there is no statute restricting this right.
There is no error in the Instructions given. Judg
ment affirmed.
SECOND wIFE-INTEREsT IN HUSBANDS LAND.
9,663. Joanna Hendrix VS.. Robert A. McBeth.
Clay G. C.
Morris, C.-seetion Of Of the Statute of De-
scents applies as we'll to second or subsequent
chIldless wife as a first wife. and by virtue of
it such second childless wife takes n fee in one
third OF all lands held by her husband during
the marriage, in the conveyance of which SHE
did not join. The proviSo Ill section "a has no
application TO such case. The land which the
wife, whether first or subsequent, takes under
section q does not descend to her at all; she
does not take as heir of her husband, but she
takes in virtue of her marriage rights. 40 Ind,
575; 4S i'd, 367) The obvious purpose of the
provisO to section ID is to secure To the children
by former wife the land which at the husbands
death descends to the subsequent chidess wife,
and where he has conveyed the land in mis- life
time there is nothing to descend to the wife, and
The provIso cannot apply. (T5 Ind, 363; &c i'd,
500 Judgement reversed.
DEcEDENTs' ESTATES TO REPORT.
9,98l. John Christie VS., Squire Wade. Hen
bricks c. O.
Franklin, C.-Appellants filed their report as
executors, claiming certain credits and showing
large balance OF the estate still in their
hands Appellee, as administrator Of the
widows estate, filed executions to the
report, the substance of which was
that the widow had not been paid her legacy
under the will Upon the hearing the court
gave jud Sment for the appellee for $780, as so
much of the legacy due under the will. This
Judgment WAS erroneous. Where exceptions are
filed to n report and it is found incOrrecr, 1t
should be amended or new Que filed. But il il
Is correct as far az it goes and no additions re-
quired, 1t shOuld he approved, leaving all col
lateral questions to be settled by independent
proceedings Instead or by exceptions To the re-
port. The questions as to the validity of an
election 10 take under the Will by widow
of unsound mud, the right of any other
without having made any valid election, and the
allowance of her claim for the legacy any
can be presented by exceptions TO the executor s
report. Judgment reversed.
NEUTRALITY-SUSPICIOUS. INSTRUCTION.
$3.50. Joseph Faller VS.. James salmons.
Warren c. c.
Black, C.-Action by appellant to recover pos
dosolbi VI tWu oVNtEdl WlluPSScS lSSll-
fed to conversations with the defendant in
which he said the mules belonged to "Old joe"
Or to Joseph, but none of them stated to whom
they understood the defendant to refer by these
expressions. There evidence, however,
from which the jury might have determined thar
the defendant, by the use of the names, referred
to the plaintiff The court instructed the Jury
that il there was no evidence IN the case from
which they could determine that the witnesses
meant the plaintiff when they used the name
"Old joe" then such testimony could have no
weight in the case. The instruction was inap-
plcable to the evidence, contained an erroneous
ment reversed.
Co-TENANTS-vALUE OF IMPROVEMENTS.
9771, Elizabeth Elrod VS.. Arnnetta Keller
Montgomery C. G.
Best. C.-Where one tenant has made improve
ments upon portion of the common property
without the consent of his co-tenant. a court of
equity in making partition will set apart to such
tenant the portion improved if it can be eqnit-
ably done. FREEMAN Co-tenancy, section 509.)
Where improvements are thus made which af
feet the whole property compensation will not
be made, unless the improvements were neces-
satv or useful FREEMAN, supra, section $40;
z J. j. Marsh. 142l. Aud where the land is In
not found to have been necessary to the enjoy
ment of the estate, the value of them cannot lie
allowed to the party making them from the pro-
ceehs arising from sale OF the land in PARTITION
(4S N Y. 1860, But the court may allow the
tenant the amount which the property is en-
HANGED in value at the time OF the sale by the
improvements. al Ill. 1906 55 id. STA; 10 Rich.
Eq. 328). In this case it snot found that the
improvements were either necessary or that