The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-05-30
THE COURT RECORD.
Supreme Court-AIay ~.
Hon. Byron X. Elliot, Chief Justice.

CORRECTING FORECLOSURE DEcREE-PRACTIcE.
10933. Charles w. Runnels VS.. Daniel Kaylor.
Huntington C. c.
Niblack, J.-Thisw was a motion by the purchaser at
a foreclosure sale to have the decree corrected so as to
conform to the reformation of the mortgage asked for
in the foreclosure complaint. In proceedings of a
summary kind like this an exception to the suticiency
of the evidence is enough, without moving for a new
trial. 80 Ind, 81; 81 i'd, 542) The entries of
judgments and DEGREES are amendable when the defect
in the record occurred through the act or omission of
the clerk, aud is not an error in the expressed ludg-
ment of the court. freeman Judgt., sec. u; go Ind,
1S9; IS id, 313; 60 i'd, 931 To such an appica-
ton the Judgment plaintiff is a necessary party. IA
Ind, 1898; 46 i'd, 524.t Such "a mistake cannot be
corrected upon the application of the purchaser at the
foreclosure sale or his assigns. e37 Ind, 1855 AZ i'd
220; &c i'd, 1889 Judgment reversed.
NEUTRALITY-SUSPICIOUS. OF PRoPERTY-PowER
OF CoURTs.
1924. VIM. Edwards VS.. D. D.. Dykeman, Cass
&C.
Howk, J.-Partition suits are proceedings in rem.
as Ind, 800; 73 i'd, 489; 81 id, 1922 All persons
having an interest in, or lein on the property, are
proper parties to the proceeding and all persons deal
ing with the property pending the suit are bound by
the orders Of the court. (39 Ind, 64.) In such a
proceeding. the court having possession and control of
the property, it may lawfully make an order that the
purchaser at the partition sale is entitled to the imme-
date and exclusive possession of the property and
may enforce the order by attachment for contempt
against any person who ~interferes with such posses
sion. The court has the inherent power, independent
ly of statute, to enforce such order, either by attach
ment, or in its discretion by the proper process OF the
IA - AhA't CCO'J $50 hAAANh
10445. II. H. & 1. Railroad Company VS.. Elisha
Pierce. Parke &. c.
Hammond, J.-Action by appellee for killing his
horse. The first paragraph of the complaint is based
on the ground that the railroad was not fenced, the
second on the ground of negligence. Appellant set
up by way of counter-claim that appellee was neg
ligent in suffering his horse to get upon the track,
thrown from the track, etc. In an action
for trespass another trespass cannot be plead
must arise ont of, or be connected with the cause of
action, (R. S. sec. 350) Appelee's negligence in
permitting his horse to run at large did not grow out
of and had no connection with appellants failure to
fence its road, or with its negligence in running upon
and killing appellee's horse. (See 7, Ind, 523; 8 i'd,
800; % id, 543; Sc i'd. 165; 50 i'd.
317.) 1t is true that in some actions ex delicto q
COUNTER claim growing either"out of contract or tort
may be pleaded, but this is where the matters stated
in the complaint and in the counter-claim arose out Of
the same transaction and such transaction related to a
contract of some kind between the parties. Q6 Ind,
So; 30 i'd, 36l) Judgment affirmed.
SETTLEMENT MISTAKE - REsCIssIoN OF CON
TRACT.
1900. Frank f. Worley, v. Charles Moore.
collars, J.-Appellee's complaint averred that upon
a settlement of accounts between the parties appellant
that it was $3,45O. 80, that relying upon his
when in fact he owed appellant but
$4,000 These facts show a mutual mistake.
Having assumed to make the calculation and assured
tine appellee that the amount was correct, and having
received upon the faith of his statements a larger
amount than was duo him, appellant can not now
charge appellee with negligence in relying upon such
statements. (56 Ind, 10; So i'd, 442.) The settle
ment was made by the appellee paying the appellant
$50 and conveying to him certain land for the price
of SO 900. Appellant complains of fraud in the
transaction, and asks a rescission of the contract, ten
dering back a deed for the land, but retaining the 800.
tits clear that he is not entitled to a rescission without
rendering the $50 also. ga Ind, 124; 8 id, 572; 80
i'd, 476) Affirmed, on condition that proper remit
ter is entered.
The following cases were decided Thursday, May
20:
1884. Lang VS.. Oppenheimer. Cass G. Q. Re,
versed. Best c.
1O449. Boyd ct al. VS.. Pfeifer. Hancock c. c. AT
frmed. Bicknell, c.. c.
10724. Connecticut Mutual Life Insurance Com
pany VS.. Stewart. Marion $. G. Affirmed. Black, G.
1OS47. Wabash, etc, Railway Company VS.. John
son. Fountain c. G. Reversed. Colerick. G.
1923. Commissioners of Allen County VS.. Bacon.
Allen c. c.. Affirmed. Bicknell, &C.
1O9S8. Kothschild VS.. Reid. Kosciusko &C. AT
frmed. Black, c.
111Os. Borchus ct al. VS.. Huntington Building
Association. Huntington O. c. Affirmed. Bicknell,
c.. c.
11124. Richardson VS.. Shultz. Cass c. C. Reversed.
Bicknell. c.. c..
1ll36.. r. Fl. & I. Ry. Co. VS.. jackson. Hendricks
G. C. Affirmed, Best, G.
HIP. Rhine admr, VS.. Morris. Blackford G. C.
Affirmed. Franklin, G.