The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-19
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record, Wednesday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme Court-April Is.
ERRONEOUS ENTRY-MoTIoN TO CORRECT.

ERRONEOUS ENTRY-MoTIoN TO CORRECT.
1o,4o9. Sarah Stuart VS.. City of Logansport.
Cass G. Q.
Woods C. J.-suit was brought against ap-
pellee and several others, and the case was dis
missed as to all the defendants except Talbot
and the appellee, but by mistake tine entry
showed diamIssal as to appellee also, and this
was motion to correct the entry in that respect.
The evidence heard the motion clearly
showed that the entry of dismissal as to the
city Was a clerical misprison which may be
corrected as such. t79 Ind, 3lS9 Judgment
reversed.
sHERIFFs-FAILURE TO LEVY.
lO,160. State ex rel. Blanton VS.. James NJ.
Emmons. Putnam c. G.
Elliott IA complaint upon the bond Of
sheriff for failure TO levy an execution within
sixty days from the time it came to his hand
Will be bad If it does not that the sheritf
was mot otherwise directed by the plaintiff or
his agent" (53 Ind, 1881 Judgment affirmed.
LIEN OF JUDGMENT-sET-oFF-PLE
1924. Robert A. Campbell VS.. Alexander G.
Martin. Washington c. Q.
HOwk, J-Appellant held Judgment against
the appellee when the latter's father died. devils
ing TO MIN certain real estate. The adnIfnistra-
tor of the fathers estate afterwards obtained a
Judgment against appellee, and the court or
dered the administrator to hold the land devised
TO appellee ana give him credit for Its appraised
value on the Judgment against him in favor of
the estate. Held: The lien of appellants judg-
ment attached on the land devised to appellee
upon the death of his father, and took prece-
dence OF the Judgment obtained by the admins
traitor, and the latter could not hold the real
as against appellants judgment. ~ Where
the plaintiff is entitled to some relief, but not
to the relief demanded in tine complaint, de-
murrer to the complaint should be oveTruled.
t16 Ind, 534; 70 i'd, 4S19 Judgment reversed
DEMURRER TO EvIDENCE-PRACTICE.
7,749. Adams, assignee, VS.. Slate. Shelby
Woods, c. J.-By demurring to a plaintiffs
evidence the defendant withdraws from con-
sideration SO much of the evidence as is faVora-
pie TO him and leaves 10 the court the question
tue plaintiff to establish every fact essential to
his recovery (Ruf VS.. Ruff, Nos, 566, and cases
cted.l Applying this rule to the present case the
courb could not have done otherwise than find
the plaintiffs cause of action sustained. Petit
tlon for rehearing overruled.
DEMURRER TO DEFENDANTS EvIDENCE-PRAC-
TIcE.
9,197. James H. Ruddell VS.. Sarah Tyner.
Hancock @. G.
Niback, i'm an action against decedent's
estate upon written Instrument its execution
by the decedent must be proved. though not de-
MED under oath. al Ind, 509J The plaintiff
demnrred to the defendants evidence, upon
the theory that, when taken in connection with
the plaintiffs evidence, it constituted no defense
to the action. This practice is seemingly sus-
tanned by Thomas VS.. Ruddell, SO Ind, 326 but
that case was modified in 80 Ind, sol, where
the rule is declared that upon demurrer to the
evidence of his adversary evidence introduced
by the demurrant cannot be considered. AS
the demurrer was framed 1T presented no dis
tincJ question upon the sufficiency of the evil
QenCe offered by the Defendants independently
of the evidence for the plaintiff, and the demur-
rer was therefore rightly overruled. In such a
case there is no trial in the sense that Will en-
able the plalntiH to reserve any question upon
the proceedings by motion for new trial.
The trial was suspended by the demurrer, and
all remaining questions upon the evidence
became questions of law for the decision of the
court. Judgment affirmed.
LEAsE-GUARANTY-FRA REPRESENTA-
TONS
8,257. MARYLAND Mining Company VS.. George
P. Kimmel ct al. Vigo c. Z.
collars, faction by appellant against the
Ruarantors of lease made TO James Small,
Robert Riddle, Matilda Small ana William Small
under the firm name of James Small IL Co. The
guaranty was the performance "by the said
James Small & Co." of all the conditions of the
lease. The defendants answered that when they
executed the guaranty the names of all the above
persons were written in the lease as iessees, and
that the lease signed by all of them except
Riddle; tnat Small represented that Riddle. who
was wealthy, was a member of said firm. but was
absent from the State and would sign the lease
on his return, ana that the guaranty was not to
be delivered to lessor until the lease was signed
nv Riddle but that Small fraudulently delivered
it without obtaining Riddles signature
to the lease. The undertaking of the
guarantors was that James Small IL Co. should
perform the conditions of the lease. The lease,
when presented TO the guarantors and when de-
livered to appellant (the lessor) was not signed
by the firm of James Small IL Co, in the t1rm
name, but by three of the partners This was
sufficient notice to put appellant upon inquiry.
Brandt Snretyship 1857; % Ind., $3.50 A
guarantor, like surety, is bound only by the
strict terms of his engagement, and his liability
is not to be extended by Implication. Brandt,
supra, $40, 98 80, 102; 81 n. Y, 80; 10 Johus
90; 20 o., 90; Wheat, ESQ., II a guaranty be
for several persons composing firm, a firm
composed of several named persons, the guar
antor will not be liable for the default of less
number of the persons so named or firm OF the
same name composed of q less number of such
persons. DC Gray, 50; Al Mo-, 254; Moores
r., 1851 The appellant was guilty of negli-
gence in treating the firm of Small IL Co. as
composed of the three Smalls, when the lease
named them and Riddle as composing the firm.
Judgment affirmed.