The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-09-18
THE COURT RECORD.
snpreme Oourt-sept. IL.

Hon. Byron X. Elliott, Chief Justice.
DEBTOR AND cREDIToR-BILL OF SALE.
1922. Adolph Dessar vs.. Frank NJ Field Owen
collars, J.--Field being indebted for goods which
we had purchased the credit of Mcknight and for
which slcNaught was liable, executed writing where
py SleNaht was put into possession of the stock to
dispose of and pay himself of the proceeds turn
ing over the surplus, if any to Field. Held: This
as Dill OF sale, and is not fraudulent in law
The fact that the value Of the goods
was 70 be measured by the amount that might be
allied from them did not render the sale fraudulent
to other creditors as matter of law nor did the
stipulation that Mcknight should account to Field
for the surplus if any, over the amount of his iabl
lty. tSi Ind 400; SO i'd, ~; 70 i'd, 1921 Judg-
ment affirmed.
Observation-Disclosures E-NoN- REsIDENT--coL.-
LATERAL ATTACK.
9057 Isaac Dowell vs. John Lair Ell al. Whitney
Hawk. j. In a foreclosure srt against a nonresi.
dent defendant affidavit for publication which does
not disclose the interest of the nonresident IN the
action IS insufficient t5S Ind 3l6.l But in such
to be sufficient the Judgment cannot
be collaterally attacked by party to the original
action who made no objection to the sucency Of the
notice and did not object to the Judgment appeal
therefrom against the rights of innocent parties
who purchased the property the faith Of the valid
ity Of the foreclosure proceedings As party the
suit he is concluded by the decision of the court upon
the question of notice q o. St., 30; 81 CAL SOL;
Fl ID, 5000 His only remedy is by appeal Or a
Al i'd, 800; So i'd, 1921 Judgment affirmed.
Bs-NoTIGR--oMIssIoN OF NAMES OF LAND
OWNERS.
ll429 William Wizard vs. John NJ Taylor.
Hammond J--Under the act Of March 8. 1875
for the construction Of dtches the petition
CURED to contain the names of the owners of the
lands affected by the proposed work, (92 Ind, 3221
Butethe statute is explicit that the names of the
owners must be contained in the notice, and if the
statute not complied with in this respect iurisc-
ton is not acquired as to the Of land whose
names are omitted in the notice. (95 Ind. 40S1
In so far the ease of Wright vs. Wilson {95 Ind,
40S is in conflict with the decision in this case, the
former is overruled. Judgment reversed.
NEUTRALITY-SUSPICIOUS. GRAIN--Loss
BY FIRE.
11747. Victoria r. Rice vs. John T. Nixon.
Fountain G. G.
Elliott, G. 1.-The principle that bailee is respon
sibe for the loss OF goods where he comminges them
with his own, does not apply whore warehouseman
receives grain to be stored for the Articles of
such character can be separated by measurement,
nlingling (Story Bailnents, sec To- Law of Produce
Exchange secs. 152, 154; 4S Mich, AL; 33 Am.
Rep, 1l99 In such a case, whore the warehouse
fault of the warehouseman he is not liable for the
loss of the grain. Judgment affirmed.
KNIGHTS OF PYTHIAs-E ENDOWMENT CERTIFICATE
EVIDENCE
1905. Supreme Lodge Knights of Phythias VS.
Clara b. Schmidt ct al Marion S. @.
Niblack J.-Aetion by appellees upon endowment
certificate. The controlling question was whether
Louis Schmidt had received notice of assessment No
g. for non-payment of which he had been suspended
from the rank. Appellant offered to prove that when
seeking to be reinstated he had admitted receiving
such notice. The certificate provided that its value
should be paid to the person named therein, or to
such other person the insured might direct by
viii otherwise. Held This provision did not take
the certificate out of the rule governing ordinary life
insurance policies From the time Gifts issuance until
Schmdts death appellees were the owners of it sub
jeet only to the right Of Schmidt to ultimately SUBJ
stitute other benehciaries by will otherwise; but
this right did not empower him todestroy the value Of
the certificate in the hands Of the appeIees by mere
hearsay or irrelevant admissions concerning matters
IN issue between other parties. 6See Q. St. 292;
Heisk., COG; SO Ind, 345; 83 i'd, 55 sc i'd, 1861
Nor were the admissions admissible as part of the
res gest@, because at the time they were made APP
pellant had ceased to recognize Schmidt as a member
assessments Nos. 8 and g. upon the theory that his
certificate had become imperative and void
Judgment affirmed