The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-12-15

GENCE
10622. Pennsylvania Company VS.. Ellen P.
Long Gibson G. c.
Bicknell, c. C.-Acti0n by appellee for the kill
ing OF her son, minor, while in the employ or
appellant. Where the employment OF a minor is
without the parents consent, it will be presumed
60 be aga inst the parents will. I'll Ind, 45lD
In such a case the parent may recover for IN
juries to the child. 49 Ind. 37S; II i'd, 1913: ID
i'd, 73.) The court charged that the use or a
common draw-bar coupler in connection with a
MIller-patent coupler of itself culpable neg
negligence of a railroad company in the use OF
machinery should have been stated, leaving the
jury to determine whether, applying that rule
20 the facts, culpabe negligence existed. ga
Ind, 40; 80 i'd, I91 81 i'd, 50) Judgment re-
versed.
PERSONAL MULTIPLICATION BY TOWN.
10,59O William Eversoe VS.. Joshua Cook.
Clark c. c.
Port Fulton from selling certain personal prop
erty of appellees for taxes assessed against 1t by
SAID town. IL appears from the complaint that
the property was situated and used outside
of the town, and it was. therefore, unnecessary
to aver that it was not "enroled, registered or
licensed" in the town. The averment that the
property belonged elsewhere shows that no
town had authority to make the assessment.
The fact that the, owners resided in the town
did not authorize the town make the assess
ment. The site of personal property for the
purpose of taxation does not follow the doml-
Gil of the owner. % Ind, 480) Judgment af-
firmed. l
WEIGHT OF EvIDENcE-PRAcrIcE.
9,343. Elijah Beck VS.. john P. Bundy. Madi-
son G.. c.
mortgage. William A. johnson answered that
he had executed the deed through which the
mortgagers claimed title while an infant, and
that. after obtaining his majority he mad gwen
notice of his intention to disatfirm iG. From the
evidence in the record the court may have found
that johnson, after conf g of age, had ratified
his deed by his acts and conduct. If the deed
was once ratified by him it could not afterwards
be disatfirmed. There being evidence tending
n nrT fha n a 4
disturbed upon the weight OF the evidence.
Judgment affirmed.
MOTION FILED AT ADJOURNED TERM.
9,479. Francis ]. Rudolph VS.. John LandwOr-
land Shelby, c. &C.
Black C-Where a motion for a new trial is
filed at an adjourned term following the close of
the regular term at which the verdict was rem,
dercd, the motion is to be regarded as II hled
at the regular term. az Ind, 75l Petition for
rehearing overruled.
NEUTRALITY-SUSPICIOUS. RECoGNIzANcE,
1885. Sarah P. Rooksby VS.. ex rel Mary ].
Cooper. Harrison c. c.
cognizaDce of defendant III prosecution Tor
basLantly it is defense, either in bar or nit
igatiOn, plead the insolvency of the defend
ant. The failure to keep the terms of the recog-
nizanee is breach of contract for the per-
Torrance of which the relatrix had a substan-
tial security. (66 Ind. 21O) In collateral
proceeding upon the recognizance, fraud in the
justice in entering forfeiture OF the recog-
nigance cannot be set up as a defense to the
action. If the justice committed a fraud, he
alone is to be held Responsible for it, His record
is conclusive against collateral attack. Judg-
ment affirmed.
TIEs-oBsTRUoTIoN OF STREETS.
9,o45. strawder Cheek VS.. City OF Aurora.
Black, C.-Action by appellant to enjoin tha
appellee from removing certain buildings al
legged to O5struct a public street. The city
answered by way of couuter-claim, setting up
in detail all the facts, and praying that the OBJ
structfons be declared a public nuisance and
ah ri U
first instance to an independent action seeking
the relief obtained in this SUIT, and the facts
which, in such action, would have entIJled
the city to such relief constituted proper ground
of coun ter-elam in this action (Dlll, Mum Corp,
Sd ed, sec 659:) The mere abandonment of the
street by the city would not have entitled the
appellant to appropriate any portion of it, No
lackes the part of the city or its officers can
defeat the right of the public to a street. Oil.
Sec 675) The statute of limit atoms, applicable
as between individuals, cannot affect a city as to
its rights in it's streets as trustee for the public.
But in this case there Is no evidence OF an
abandonment by the city The street never
ceased to be used for the drain age of surface
water from other parts of the city. Judgment
affirmed.
RIGHT TO PROSECUTE AS POOR PERSON.
1882 SamuelJ. Wright. administrator, VS..
Mary NJ. Garinan. Marion G. G.
Best, Con a showing that the plaintiff, who
was minor, possessed no property but bed
and sewing machine, worth $50, it was not error
to permit her to prosecute the action as poor
person After such an order was made she
could prosecute without o next friend (67
Ind, 1861, hut iJ was not error TO allow the at
torney appointed to prosecute her case to style
himself her next friend The fact that while
the suit was pending the plaintiff attained full
age and was married and became nonresident,
did not invalidate the order allowing her 10 de-
fend as a poor person or require her TO give Sc
curity for costs. Where clothes, boarding and
schooling are furnished to one while member
of the decedent's family their value cannot be
set off against the claim OF such person for serv
ices rendered the deceased. az Ind, $685. "a
i'd, 3051 Judgment affirmed.
INDEMNITY MoRTGAGE-JUNIoR IIEN-HoLDER.
1864. Edgar G. Loehr VS.. Abraham Col
born. Hamilton G. c.
Niblaek, J.-Appellant, as guardian of Anna
Frankhauser. alleged in his complaint that
johnson, former guardian, had obtained
judgment against Williams, Geiger and Durfee
which became a lein OH their real estate; that al
the time of the rendition of said judgments the
only real estate owned by them was encountered
by prior indemnfying mortgage to Cloud and
Geiger, who afterward assigned the mortgage
to appellee; that, in fact, no loss was ever sus-
tanned by Cloud and GeIger as sureties on the
note secured by said mortgage, but appellee af-
terward foreclosed the mortgage and bought In
the property; that said Anna was not made
party to the foreclosure suit. but said johnson.
who as guardian, had recovered the Judgment
for her, was made defendant IL ls argued
that as the original mortgages had sustained
no loss by reason of their suretyships,
they had no interest in the mort
gage which they could assign to appellee.
But this more than a mere indemnfying
mortgage. The mort gage secured the payment
of the note on which the mortgages were sure
mortgagers to pay the note. Under such cir
cumstances the security afforded by the mort
gage enured to the benefit of the appellee, aud
he had right to fOreclOse 1t in his own name
for the payment of the note (Jones Mort, sec
tiOns 3S5, 1856; Brandt Suretyshlp, sections 2S2,
283) The legal title to the Judgment was IN
johnson, as the trustee of an express trust, and
the duty of collectngit dev0lved upon him. The
making of him defendant to the foreclosure
proceedings was therefore, sufficient to bind
the ward. Zones Mort, sections 1895, 1,399l
Judgment affirmed.
SUPREME COURT-DECEMBER IA.
OBSERVATION-DISCLOSURES OF STOCKHOLDERS.
9,597 Upton Fire Company VS.. Henry Barn
heisel. Cass c. Q.
Elliott, IA corporatOr whose membership is
denied has a right to have it estab-
lished. and can maintain suit for the pur-