The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-17
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Fun Abstract of the Opinions Rendered
by tho judges of the Supreme Court
Work in the Local Courts.
Supreme Court-May I6.

9.470.-Sarah c. Lucas VS.. Asher Labertine.
Monroe c. e.,
Bicknell CA grautor who by mistake con-
veys too much land may have the mistake cor
reeted, where the deed was made and accepted
by mistake for the land intended TO be conveyed.
az Ind, 34S 70 i'd, 564.l No request for the
correction OF such mistake IS necessary before
suit TO quiet title. Unless it aflirmatively APP
pears that the case does not come within any OF
the exceptions to the statute of limitations de-
murrer to the complaint will not be entertained
on the ground that the complaint shows case
barred BY the statute. (67 Ind, $50 Judgment
affirmed.
CHANGE OF NEUTRALITY-SUSPICIOUS..
9679- George Bowers VS., John Snyder. Tip
peoanOe c. c.
Best, C-Proceedng ,or the change of a high
way. motion to dismiss the petition was
made on the ground that il sought the vacation
another. The change of highway
necessarily requires the vacation of portion OF
me highway aud the location OF snch portion
upon different line, and in this sense vaca-
ton and location are authorized IN the same
proceeding. The statute does not require the
petition TO aver that the proposed change will
be of public utility. Judgment affirmed.
| S,5o7. WIN. Reader VS.. Benz. e. Smith Har-
| rison c. @.
pellanJ insists that the fifth specification OF error
! was not considered in the original opinion. In
this he ts mistaken. The motions all had refer
ence to the costs, and were considered together,
though the Others were specifically discussed.
Petition Overruled.
BILL OF MISUNDERSTANDING.
9,719. Andrew johnson w. Peter Herr. Cass
Franklin, C-Action by appellant for the re-
view of Judgment rendered on a note
executed by him to the appellee,
The action was based on newly discovered
evidence, and the complaint alleged that the
note WIS given in settlement of Judgment, and
by mutual mistake was male for $50 too much,
and that the mistake "cOuld not have been dis
covered before the trial by reasonable diligence,
and that he did not discover the mistake and
| material new matter until long after said judg-
arr In n "a
constituting the diligence must be stated. I'll
| Ind, 585; IT i'd, 499.) The Judgment for which
| the note was gwen WAS matter OF record, and
| very little diligence would have discovered be-
| fnIe the trial whether or not the note had been
gwen for the correct amount. 1t is not shown
that any defense was made to the suit on the
note. No diligence is shown. Judgment ar
tirmed.
| MISUNDERSTANDING.
1852. David E. Burton Jesse Beasley.
Elliott, jim a complaint for SANDER the alb
sence of the averment that the words were mali
ciOusy spoken does not make the complaint bad
in cases where snch facts stated as enable the
court to infer malice. (Odger's Libel and 81 u,
267; TOwnshend, Id, 1879 Where words I'M
putting crime are falsely spoken without legal
excuse, malice is inferred. (6S Ind, 53S, 81 i'd
500 While malice is inferred from the utterng
of slanderous words without legal excuse, II Is
always proper for the plaintiff to give evidence
OF express malice. Where there Is no conhden-
tial relation, no existing duty and no common
interest, private individual has no right to re-
peat sanderOus accusation. (8l Iud, 527;
Odgers, supra, 1876, 1858. Judgment affirmed.
LOCATION OF HIGHwAYs-soHooL PROPERTY
1o,167. Charles Rominger VS.. Henry Sim
mons. shelby c.
highways all questions that party had
| an opportunity to raise before the
| board of commissioners and not first
raised there, except the question of the
sufficiency of the petition and the right of
amendment, must, in the Circuit Court, be re-
garded as waived. tGreene VS.. Elliott, No. g.
fRF RIGHT riU " Afa a
| TO locate highways upon lands owned and Occu-
| pied by individuals and corporations, necessa-
| rily implies the right to locate them on lands
owned and occupied for school purposes by a
| school corporation. mills EN-. Dom, sec, 40,
ct. seq) And where school property is taken
| the sohool-house cannot rightfully occupy por-
| ton Of the highway. The public have the right
70 the entire highway for purposes of travel.
It was the duty OF the jury to tnd upon the ques-
| ton of the public utility of the highway and III
determining this question, the cost of the high
| way To tine public was proper element TO be
| considered. In the present case this cost wOuld
include the expense of removing brick schools
house occupying portion or the high
way. The court, however. instructed the
located, TO be of public utility, the schoo-house
might be left undsturbed in the highway. The
effect of this to take from the jury the con-
sideratl0D OF a necessary item OF expense. Judg-
ment rev ersed.
ACcoUNTING-EvIDENCE.
s.2o6,, Adam Kitring VS.. Martin Hiilabold.
Kosciusko q. @.
fraHkllH, IA pell60 butu appellant Tor an
| accounting and settlement of their partnership
business and recovered Judgment. The jury
| with their verdict, returned answers 30 inter
rOgatOres, and these sustain the general verdict.
1t is claimed that the court erred in refusing to
permit appellant to prove declaration of mp
| pellee In relation TO having used 1928 of the
| partnership funds for his individual purposes.
| But IL was agreed by counsel in open court that
| this matter had been adjudicated in former
suit aud there was. therefore, error IN ruling
| it out. The evidence tends to support this YER
| dict. Judgment affirmed.
| S,SlT. Oscar Simons vs.Wiliam L. MOrehouse,
Marshall G. C, Reversed Bicknell, @.