The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-03-10
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-NIarch 8.
SETTING OFF JUDGMENTs-mUruALTri

supreme C~oUrt-March 8.
SETTING OFF NEUTRALITY-SUSPICIOUS..
9.73s. James Cosgrove VS.. James Cosby.
Dayiess c. c..
Bicknel, C.-MotiOn TO set off Judgments.
Appellee averred the recovery by Trip ana
Others of a Judgment against Cosgrove & Tran
tor, part of which had been assigned to appellee;
that Irantor was adludged Il bankrupt; JDat
Cosgrove recovered a Judgment against ap-
peilee. The motion was to offset these Judg-
ments. By the bankruptcy OF Trantor- the
Judgment against him and Cosgrove became
substantially the debt of the latter alone; ne
only was liable to pay the whole of 1t, and the
part assigned to appellee as a proper sutJect
OF equitable set-Off against the Judgment held
by CosgrOve against him. az N. j. Eqy 2l9;. ~
Ind, 81; p i'd, 3S4; 2 Paige, 59l9 The blll OF
exceptions shows that the judgments were read
IN evidence, but they are not copied IN the DIN
nor referred to, with a place for insertion: me
evidence is not, therefore, IN the record. az
Ind, ASP: &c it,, 1917 Judgment affirmed.
RELEASE OF NEUTRALITY-SUSPICIOUS..
1890. Eliza Gipson VS.. Matilda Ogden. Hen
bricks c. c.
Franklin, C.-Complaint by appellee to have
a Judgment against her and one Lackey
declared null and void as to her, for the reason
that she was surety on the note, and after iudg-
ment the plaintiff took a chattel mortgage from
Lackey on property more than sufficient to pay
the judgment extended to him of payment, and
afterward suffered him TO dispose of the prop
erty, with fun knowledge of appellee's surety
ship. The taking of the mortgage was a suff-
cient consideration for the agreement to extend
time. This action was not to settle the question
OF suretysh1D, but to be released from liability
TO the creditor. IL was not necessary, therefore,,
to bring the action in the same court IN when
the was recovered, Judgment affirmed.
UTILITY OF NEUTRALITY-SUSPICIOUS. OF WITNESSES.
10.0S9. James Boshbaugh VS.. Byron Birdsell.
st. Joseph G. c.
Best, C.-Proceedings for the location OF a high
way. Two witnesses, after they had testified to
the location of the road, the nature of the soil,
amount of grubbing and grading required, prob
able expense. etc, were permitted TO say that
they did not think the road would be of puDllG
utility. This case does not fall within any ex-
ceptton to the general rule that witnesses can
not express opinions. There was no difficulty in
putting the jury in possession of all the facts
pertinent to the inquiry, and they are supposed
TO be as well qualified to express an opinion
FROM the facts as the witnesses, "a Greene, Iowa,
las; 50 Ind, "a; Hagaman VS.. Moore, this term.)
Judgment reversed.
SPECIAL OBSERVATION-DISCLOSURES IN
TEREST.
300. John Kepler vs.. Benjamin COnkling.
Henry c, C.,
BIcknell, Cit is not the office of a special
finding to find expressly upon the issues, but to
find the facts proven within the issues. II the
court ought to have found facts which are not
found, the remedy is by a motion for a new trial,
on the ground that the finding is contrary to the
evidence. rs Ind, go 2. The act of 1873,
concerning interest, by its terms does3not apply
to existing contracts, and the usurious interest
having been paid prior 60 the taking effect OF
said act, the case was governed by the act Of
1861, ana defendants were not entitled 10
recover iJ back. 80 Ind, 40; 50 i'd, 1881 B.
Where an Inference may properly be made
from the facts stated IN a special finding, that
construction will be adopted which is most
favorable to the party against whom the find
ing was made. (6S Ind, 1l5l But the finding
is so indefinite and uncertain IN this case that 1t
is impossible to say whether the theory OF the
appellant or that Of the appellee is the correct
one. The motion Tor a new trial should have
been sustained. Judgment reversed.
BILL TO REVIEW ACKNOWLEDGEMENTS.
9,l00. Malinda Debolt VS.. william T. DebOlt
ct al. Randolph c. c.
Black, C.-Complaint by appellant to review a
judgment for new matter discovered since its
rendition. 1t IS alleged that appellant was de-
ceived by her husband into signing "A mortgage
which embraced among other property certain
lots in Union City; that as read to her the lots
were not contained in the mortgage, and that in
fact the description was by some one changed
by lnterlineation after she had signed II; that
when suit was brought on the mortgage her
husband entered appearance and filed answers
for himself and her without her knowledge or
consent, and that she did not learn that the
mortgage covered said lots until after the prop
erty had been sold under the foreclosure decree.
In such a case the complaint must show by facts
alleged ana not by mere vermont in the words
of the statute that the new matter could not have
been discovered by reasonable diligence before
the rendition of the judgment. t5S Ind, AIS; 90
i'd, 577; 81 id, $3.50 Appellant was notified of
the institution of the suit to foreclose, and must
be regarded as chargeable with whatever in
formation she might have obtained from the
papers, proceedings and evidence in the action.
Slight inquiry would have shown what real
estate was involved IN the suit. Nor is there
any averment that she was unable to read the
mortgage, or that she was prevented from doing
so. The complaint fails to show proper diligence
A married woman duly notified of the pend
ency of an action against her Is not relieved by
her Overture from the necessity Of setting up
any defense which she may have, and which, by
such reasonable diligence as Is required of per-
sons not under disability, she may be able to es-
tablish. Judgment affirmed.