The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-30
THE COURT RECORD.
Supreme COurt-April FL.
lion. William A. Woods, Chief Justice.
PRACTICE-WEIGHT OF EVIDENCE.


PRACTIcE-wEIGHT OF EVIDENCE.
1914. Alex Curtis rs. ALVIN C. Barnes Full
ton c. c.
collars, faction by appellee to recover for
work and labor. A jury awarded him $500. APP
peant contends that the evidence does not sup
port the verdict. 1t is ease in which the testi-
mony is conflicting, and it is well settled that in
shcn case the judgment will not be reversed
upon the weight of the evidence. 49, Ind, 35o1
Judgment affirmed.
TAX Observation-Disclosures DESCRIPTION.
lO,1l5. Sampson Reed VS., James Earhart
Cippecahoe S. G.
Morris, C.-Aetion by appellant to quiet his
TUE TO real estate and TO have certain tax GER
nhcates declared null and void. The answer or
rather counter claim, alleged that the lands were
assessed IN the names of the former owners by
the imperfect and insufficient descriptions stated
IN the complaint for the years 1873, 1876, 1877,
1878 ana 1879, and had been so assessed FOL
several years prior to 1875, and that the owners
during said years had paid the taxes thereon
and knew they were the lands intended to be
assessed, and that the auditor intended to assess
the lands afterward bought by appellee at
sheriffs sale. The answer gives a true descrip-
ton OF each tract purchased by appellant at the
tax sale, the amount paid for each tract, ana
asks protection as to the sums so paid, and tnat
the same be declared a lien on the lands APP
pellant does not assert an existing lien, but asks
to have lien declared. Without questioning
the facts alleged in the complaint the answer
attempts to state an equitable cause of action in
favor or appellant The facts set up are not
pleaded as a defense to the action, but as ground
for relief in favor Of appellant az Ind, 400
did not answer the whole complaint. The
error IN the descriptions of the land on
the tax duplicate was in stating
part of certain divisions without stating
what specific part It may be inferred that the
assessor and auditor intended to assess such
lands the Kelloggs owned in said divisions, and
while no title could pass by the auditors sale. 1t
does not follow that from the words used, in con-
nectiOn with the names OF the owners, 1t cannot
be inferred what, lands were intended to be as
sessed and taxed. And this being so, the lien of
the purchaser should be protected al Ind, 244;
81 Ind, 491; 80 i'd, $50, 294.) The facts stated
were suftielent to entitle appellant TO some re-
lief, and the court erred in sustaining demurrer
to the answer. Judgment reversed.
MISREPRESENTATION OF ISSUES.
$685.. Nicholas Beard VS.. Jacob Hand. Har-
ris0n C. G.
Black, C.-Tne pra ctice of submitting the
completion of the issues to referee
is not contemplated by tho stat
our systers of procedure. But where the referee
returned with his report all papers filed before
him, which were treated by him and the court
as papers in the cause no harm resulted from a
failure TO set out IN the report the pleadlngs
filed before the referee, or to specially mention
the filing thereof He was not required by tho
parties or the court to say anything in hi2 re-
port about the pleadings filed before him, or his
rulings thereon. ReheariRg denied.
JUDGMENT LEGNs-sUPERIoR DILIGENCE.
1O,1os. Milton ]. Lowry William Reed.
Cass c. C.
Bieknen C-Appellant obtained a Judgment
against George Adams, on Feb IS, 1878, and ap-
pellee one on Feb. 20, 1873. Edward Adams
became Teplevin bond on both jndgments GU the
same day. George Adams had no
property, and Edward none except the
land IN controversy. On Dee. 8, 1873,
appellee had execution issued which was
levied on the land June 4, 1870, and sale made
hereunder. Afterward appellant also had the
land sold under his judgment. Held: Appellee's
sale was not void The land having been levied
upon on the return day of the writ the levy was
in time. q Burr, 9l2l Where an execution
has been commenced, before it may be COM
pleted after the return day of the writ az Ind,
5l3 Blkf., 500, the Judgments against the re-
plevn bail become liens on his property on the
same day, and neither had priority. In such
the creditor first levying has the preference
Is Johns, 347; IL i'd, 229 Ind, 259) Judg-
ment affirmed.