The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-18
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-Oct. II.
Hon. W. Il. NIblack. Chief j Justice.
COMPLAINT GOOD IN PARr-PRAcr1oE.

COMPLAINT GOOD IN PART-PRACTICE.
11,O32. William Baker VS.. William 8. Allen.
Marion q. G.
Elliott. J.-Where complaint entities the
plaintiff TO some relief, but not to all granted,
the remedy is by motion to modify the Judg-
meDt. Here the complaint, which was for rent
due and possession, was sufficient for money
recovery, and If the forfeiture of the lease was
unauthorized. the remedy was by motion to
modify the Judgment. Hardy vs.. Miller, No.
9,438.) Judgment affirmed.
NUNC PRO TUNo ENTRY-PRACTICE,
10,094. Robert Williams vs.. Lewis j. Hender-
son. johnson c. c.
Franklin, C.-Nearly three months after the
trial, and at a subsequent term Of the court, APP
pellants counsel filed motion for nunc pro
tune entry, and to correct the record, alleging
that Wnen the appeal was granted the court
gave ninety days in which to file bills of eXcep-
tions but through the "inadvertence and mis-
take of the court the minutes thereof show that
but thirty days were granted" and that the
record shows the same. Parol evidence
alone is not sufficient to authorize nunc pro
tune entry, or to change the record aft er the
proceedings have ceased to be in hni, and
after the term at which the record was made.
Such amendments can only be made when there
is some memorial minute of the transaction
In the case, from which what actually took place
in the prior preceding case can be ascertained.
UT Ind, 435; 65 i'd, 313) There being no cler-
ical error of the clerk shown and the court hav-
ing made its minutes upon its own docket, from
which the record made the record cannot
be changed by parol evidence alone. Judgment
affirmed.
10,033. Rachel Wallace VS.. Peter c. Lawyer
ct al. Hamilton G.. G.
Hammond, jim proceedings supplementary
to execution, the evidence must sufficiently de-
scribe the property sought to be reached ana the
claims owing to the execution defendant to
able the court, in its Judgment, to direct what
property shall be levied upon and sold, and
what Indebtedness due the execution defendant
shall be applied to the payment of the judg-
ment against him. In these respects the evil
dence not sufficient. Petition for rehearing
Overrued.
MISUNDERSTANDING sToCK-PLEADING.
1o,545. The W., st. L. & P. R. W. Co. VS.. Oil
yer p Rocker ct al. Hamilton c. c.
Morris. C.-Suit by 6ppelleeS to recover for
stock killed by cars. Where paragraph of COM
plant contains two causes OF action, of one of
which the court has no Jurisdiction, demurrer
for want OF facts will not raise the question of
jurisdiction. The demurrer must be Tor want of
jurisdiction, or the question may be raised by
Onjecting to the introduction of the evidence on
the trial. go Ind, 324) The complaint alleged
that the train which caused the injury was run
and controlled "by said defendants, some
lessees thereof, or other person unknown to the
plaintiff" There is no direct allegation that the
lessee, or other person unknown to nppellees,
was operating the road IN the name of appellant,
nor in what name 1T was opera ed when the &C
dent occurred 1t was not the intention of section
4,025, r. s., to make railroad companies liable
for the acts of parties who without their author
ity consent, take possession of their roads and
run and operate them. (36 Ind, 1901 The com
plant is bad for not containing an averment
that the appellee, any one for whose acts it is
responsible, did the wrong. Judgment reversed.
SURETY OF PEACE-CIRCUIT CoURTs-JURIsDIC-
TON,
11,175. The State VS.. George Cooper. Lake
Hammond, J.-Section 1914, R. s., does not
give circuit judges original and concurrent
Jurisdiction with justices of the peace in prose
cutlons for surety of the peace That section
relates to crimes which have been committed
and not those that are merely apprehended.
Nor is concurrent jurisdiction in such prosecu-
tiOns conferred upon circuit courts by section
1924. The authority of circuit judges to take
recOgnizances under this section can only be ex-
erciSed offices
OF the peace, and the circuit courts have no orig
inal jurisdictiOn in such cases. (Secs. 1,7O2,
2,04I r. 8; l Blackstone, 350.) 1t follows that
prosecutions for surety Of the peace cannot be
commenced in the circuit court. Judgment
affirmed.
DITCHEs-PLEADING-PRA
1925. Russell B. Watkins VS.. Mary Picker
ing Montgomery g. G.
Best, Cit is not necessary for the petition
for the establishment of ditch TO contain the
names of the owners of land to be affected by
the esta blishment of such ditch. All that is re-
qured is that the petition shall be signed by
one or more of the landowners whose land will
be affected is liable to be assessed. After the
general verdict, heterogeneous with answers by
the jury are copied into the record, but there is
no entry that they were submitted to the jury
by the courI. Under these circumstan ces they
cannot be considered part OF the record. 60
courts ruling upon the motion for Judgment
upon the answers of the jury is not therefore
presented. Judgment affirmed.
ACKNOWLEDGEMENTS
1O,5O7. George w. Eaton VS.. John McKahan.
Bicknell, G. C.-Appellants complaint averred
that he had sold ST cam engine TO Tyner, and
taken a mortgage on it for the purchase price,
that the mortgage was signed on April 25, and
placed in appellants hands, but by reason Of
certain defects therein, he did not accept it I'M
til May 6, and had 1t recorded on May 16. APP
pellees had executions junior to the mortgage
levied upon the engine. There is no delivery of
an instrument without acceptance. (53 Ind, IL
The demurrer admitted that the mortgage was
not accepted until May 6, and that 1t was re-
corded on the ninth day thereafter. 1t was there
fore valid as against the executions Judgment
reversed.
EsrRAYs-RIGHT OF POSSESSION.
1892, Thomas James vs. Moses Fowler. Ben
ton G. G.
Howk, IA defective description of the
property in complaint in replevin is cured by
the verdict. The action was TO recover posses
sion OF six hogs, which appellant claimed TO have
taken up as estrays. In such a ease, the
taker up of the property obtains no right to its
possession as against the owner unless he has
statute. 1913 Ind, 16) In this no such
compliance was attempted. Judgment affirmed.
COMPLAINT observation-disclosures.
1864. Andrew ]. Rooms VS., Andrew ]. Viii
hanson ct al. Jay c. G.
Morris, C.-Appellant's complaint alleged that
the appeiees were partners, and that they were
indebted to HIM "for money had ana received at
their special instance and request in the sum of
800, which is due and unpaid" The complaint
was dismissed as insufficient. This
The averment that the appellees are indebted to
appellant Tor money nad ana received Is equlva-
lent 10 allegation that it was received by the
former for the use of the latter III Ind, 203;
Is i'd, S9) The dismissal OF tue action at the
plaintiffs costs such a Judgment as an
appeal would lie from. t73 Ind. 529) Judg-
menJ reversed.
The following were also decided, abstracts of
which will be published tomorrow.
Robert Morey VS.. Cyrus Ball. Tippecanoe
G. g. Reversed. Best, c.
Sarah Gray We. Henry c. Robinson. vigo C.
c. Affirmed. Bickne G.
Superior Court.
Room No, Hon Napoleon B. Taylor. Judge.
Ellen Smith ct al. VS.. Fanner 81 HOmmown ct
al; damages. On trial by jury.
Room No. 2-Hon. D. W. Howe Judge
poharr Tut1 va T. e. Px- ~ anti