The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-03

may both join in bringing the suit. tG7 Ind,
123; 50 N. Y, 29S; POmeroy Rem, sec. 2ll, 212D
Harriet L. Owens VS.. Travellers Insurance
Company. Reversed,
Howe, J,-If an insurance company wishes to
take advantage of provlsos and conditions sub
sequent, 1t must specially plead them. IL entity,
Pleading, 16 Am. ed, sec 246 Stephen, Plead
ing, Am. ed sec ABB Under the code system,
II party wishes To rely upon an excuse for mt IL
performance, not making demand, etc, he should
specially plead the facts constituting such excuse,
instead of alleging performance, etc, and then
proving an excuse. us Ind, 3S6; 1S i'd. 800; 43
i'd, 41S42l; POmeroy, Remedies, sec $3.50 At
common law there no substantial difference
between a total failure of proof and a variance.
(StepheD, Pleading, Am. ed, sec. 80 But
under the code it does not follow that a mere
variance is fatal, even if objected 10 on the trial
go d. 322; 30 i'd, 115; 27 ill.,. 207; 90 id, 400 60
Id, IS; IL n. Y, 36s; 65 i'd, 80: 1o4 Mass, 345J
party who would object to any irregularity in
judicial proceedings, must do so promptly. q
449 473; BIZ, 502.)
An objection to a "variance," as distinguished
from failure OF proc" must be taken at the
time when the evidence is offered; if not, IT can
not be raised afterwards (45 Ind, 213; IA N
Y, 143; 43 id, 399-4n4; IL Cush., 563; lis
Mass, 300; Duer, 5S7)
William Max Dunn ct al vs. John O. D. Lilly.
Walker, J.-Held: The fact that debt secured
by mortgage is barred by statute of limiia-
lions does not necessarily, or as general rule,
extingulsh the mortgage security or prevent the
maintenance Of an action to enforce it. (JOnes
on Mortg,, vol. 2, sec, 204 and authorities there
cited.)
The promise of the lnortgageor contained in the
mortgage to pay the debt secured thereby does
not change the rule, nor does the absence OF such
promise affect the time within which the lien of
the mortgage may be enforced. (Whlppe VS..
Barnes, II Wis, $50, and other authnrltles.l
The rule that a lien by a mortgage or pledge OF
property is not barred because the statute may
Withhold n remedy on the debt, applies as well
to mortgage or pledge of personal property as
to real estate. tBelknnp VS.. Gleason, IL Conn,
100; Grain VS.. Paine, Cnsh-, 4S3) An action TO
fortclose mortgage may be commenced within
twenty years after the cause of action accrued.
90 Ind, 5l4) junior incunbrancer, not having
been made IA party to u foreclosure, Is IN no way
bound by 1t and Is not Invested of any right OF
redemption existing by general principles or
law. t4O Ind, 575; 81 id, 262 go i'd, 249)
Wilson Morrow vs. Daniel Ransden
Walker, Jan answer duly verified showing
an interest In the subject matter OF the conJrO-
VerSy In persons not parties TO the SUR, and OF
such nature that the proper decree cannot be
entered fully settling the alters in dispute,
will operate to stay further proceedings until
such persons are brought in, and on failure to 10
so viii abate the action.
The remedy of "a party holding lien on real
estate by reason of redemption made under
judicial sale in the State under the act Of 1881.
Is to enforce the same by action prosecuted
for that purpose. (Rce VS.. Pruett; 81 Ind $50;
Igleharts Practice, 32l.)
Room No Hon, Napoleon B. Taylor, Judge
Mary L. Conniar VS.. r. s. Foster: suit to re-
cover money lost by Plaintiffs husband. On
trial by court.
Room No. 2-Hou. D. W. Howe, Judge.
Christian SCHNEIDER VS.. Margaret SCHNEIDER;
divorce. Granted. Grounds, abandonment.
Eli Burdges VS. The l., B. Il W. Railroad Com
pany. Motion for new trial, under argument
Room No. 3-Hon. Lewis G. Walker. Judge.
Eliza Cavett vs. Abram Kimberi suit on ac-
count. Dismissed at PLAINTIFFS costs.
Hnlda A, Hadeoek W.. VIM. H. Corbaly; suit
OIL account. Dismissed at plaintiffs costs.
George Hubbard VS. William Hubbard; suit on
note. Dismissed and costs paid
Jennie Heston vs.. The City; suit for damages.
Cause continued.