The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-04-25
THE RECORD OF THE COURTS.
Supreme COurt-April 23-
Hon. Geo. V. Howk. Chief Justice.
TELEGRAPH coNPANIEs-FAILURE TO SEND
MESSAGE.


MESSAGE.
11255. w. U. Tel. Co. vs.. Henry Kirkpatrick
TppecmoeC c. c.
Bicknen c. C--Action to recover the statutory
penalty and special damages for failure to transmit
promptly Geographic message. The action OF the
trial court IN granting a new trial VIII hoe
unless it plainly appears that injustice has been
done and this cannot be shown i'll the absence OF the
evidence given the first trial t12 Ind, 257; ID
i'd, Is; 80 i'd, ~ In such action the precise
time when the sent in is not material ex-
eept Of identifying the act and there was
no error in permitting proof that the message was
sent in january, and not in March, as the complaint
alleges, the particular dispatch intended being fully
identified. Judgment affirmed.
Observation-Disclosures TO ENTER JUDGMENT IN.
TIME-INJUNCPIoN.
1OO38. Henry L. Martin, ct al. VS.. Jno. Pifer.I
Hammond J.-Action by appellee to have judg-
ment rendered before justice of the peace declared
void and to enioin its collection SO far as the execu
ton commanded the constable to make the CO lee
tons without appraisement IL did not follow the
judgment but the remedy for this by motion to
make it conform to the judgment, and an injunction
will not be granted in such except TO stay pro
ceedings until the motion be determined. Il
Blkf. 226 4 id. 304; % Ind 1922 The judgment
not entered until six days otter the verdict of the
jury returned. Did this fact make the Judgment
void? The word Immediately as used in the stat
ute. should be construed meaning that the act
should be performed within areasonabe tlIne Lev
70; 8 M. g. w, 2S1;A3 Wis, 316) The delay IN
this case was not reasonable one, but the judgment
follows the retIIrn of averiic before justice D the
peace a matter of law and the act of eneriDglt Is
only ministerial. The delay in entering Judgment fer
unreasonable time may subject the justice to suit
for damages by the judgment plaintiff, but
it does not render the Judgment void when
no harm by the delay resulted to the defendant
Freeman Judg., So, IL Me, 371; 2. n
o., 1874; "A id 800. The duty of entering this
judgment has been held to be directory only and when
statute is merely directory thing omitted to De
q Ind, la; Seig. Stat. Con. 316; "a Ind 4S6;
Jones VS.. Swift, No. 1888. decided April IL,
1881 The failure to enter the judgment was an
rregularty but the law is well settled that where
court has iurisdctonof the subject and the parties
the Judgment is not void however irregular the pro-
i'd. 81 2 Ind. l.. May, 1Ol, lbs, 2l6). Appellants
demurrer to the complaint should have been sus
tanned, Judgment reversed,
Elliott j.. does not think the case is author
zing the party to invoke the extraordinary remedy of
injunction the Judgment being for $40 The
amount in controversy is small that it cannot be
said that irreparabe, serious injury within
the meaning of the law, would have been sustained BY
the enforcement of the Judgment there being col
lateral right dependent upon the decision.
TELEGRAPH Observation-Disclosures
TUT1oNAL LAW.
11O15. Western Union Telegraph Company VS..
William Pendeton. Shelby G. G.
Elliott, 1.-The validity of the statute imposing q
penalty telegraph companies for failure to trans
nit messages is contested on the ground that it in
nges the provision of the Constitution of the United
States which invests Congress with power ito regu
late commerce with foreign nations and among the
several States" the lines of the company extending
beyond the State and the being intended for
in the decisions of the United States Supreme Court
the conclusion deducbe from the later decisions is
that the State cannot eu1barrass commercial com
munication, abridge the freedom of commerce, dis
crinnate in favor of the products of State, lay
burdens upon the instruments of commerce, or exact
licenses from persons natural or Artificial engaged in
interstate commerce. q Peters 245; II id, 1872
5 How, SOL 10 Wall, 232i 81 U. S, 275i 81 i'd,
companies having offices and doing business
in this State may be compelled to discharge their
duties diligently and impartiay. This is merely the
exercise of police power which is inherent in all
soveregnties 1t must also be held that the statute is
proper exercise of this power. No discrimination is
made in favor of any person or article of commerce. 1t
enforces an existing duty and provides penalty but
it confines the duty to class and denies the penalty
to none (Sec. 81 U. s., 113; Is Wall, 293i 129
Mass, 500 The fact that the message to be
another State does notprevent enforcement
of the law The action not for breach of contract
59S; "a i'd 176; 90 i'd, 1899 The right of action is
in the sender of the message The statute operates in
favor of the sender of message delivered at office
in this State and upon corporation represented by
its agents and officers within e borders The parties
therefore within jurisdiction and subject to
our laws The duty is continuous one and failure
perform irrespective of the place where the failure
occurred is breach of the duty at the place of its
creation. go Ind, l91; 81 i'd. 371i SO i'd, $3.50.
Judgment affirmed.
PROCEEDINGS NEUTRALITY-SUSPICIOUS.
FEIsRING oREDITOR-FRAUD.
1o925. Jos. ]. Cushman ct al. VS. WIN. Gephart.
Wayne O. c.
Franklin, C.-Under sections S15 916 snd .919 R.
S. governing proceedings supplementary to execution
the complaint ought TO show either that the execution
has been returned nua bona if not returned that
the execution defendant has not within the county
other property subject execution sufficient to salts
fly the Judgment. go Ind, $3.50 Sec 2662 r. 5.
only provides for general assignment of the debtors
property for the benefit of all his creditors and when
that is attempted the statute must be complied with
the assignment, without regard toactual fraud will
be held fraudulent and void But assignment by a
debtor for the benefit of several OF his creditors
IN order to be held void must be actually
fraudulent. The statute does not prevent
coed faith preferences of creditor over another
| (19 Ind, Y 90 i'd. 2S5) In this case tine account
sought to be reached had been assigned to and de-
posted with Rinkley Internationally and in good
faith 80 be by him collected and paid to another
creditor of the execution defendant before the com
nenceplentof these proceedings The court erred in
ment reversed.