The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-24
THE RECORD OF THE COURTS.
Supreme Court-June FL.
Hon. Byron X. Elliot, Chief Justice.
Observation-Disclosures.

Hon. byron ~ ElllOt' SnieI SuStiVe-
-RECEIvER-PRACTIcE.
10477. Milton Pouder VS.. Warren Tate. Hamil-
Hammond, IAN application for the appointment
of receiver pending litigation, is made upon petit
ton motion. Aidavits and counter atidavlts may
be filed oral testimony may be heard, and an Elk
cepon taken to the sustaining everything of such
petition motion presents the question of the cor
mortgage the appointment of receiver is asked 1t
is only required to show that the mortgaged property
is not sufficient to discharge the mortgage debt with
out averring the insolvency of the mortgageor Judg
ment affirmed.
ACTIONS BEFORE JUSTICES AMOUNT IN CON
TRovERsY.
1904. Jesse Winship VS.. Jacob Block. Rush
Colerick, C.-n action before jus
tice, the appellees recovered Judgment for
$?3. !6 and on appeal by appellant '.5t to the the
$40 Held: Where the plaintiff RECEIVERS fifty dollars
less, and is satisfied Herewith and the defendant is
counterclam, the amount recovered is all that is
in controversy. al Ind, 24O; 50 i'd 516) Appeal
dismissed.
DITCH Observation-Disclosures.
10841. Elk rel. hurry vs. William Hayes Grant
BickneI, G. C.-where notice to pay ditch assess,
ment published in weekly paper on the 9th OF
October requiring payment to be made on the Ith OF
November, It sufficient The. statute is satisfied
if publication has been made thirty days before
the day appointed for payment. Or. s., sec 4277l
notice by publication. Judgment affirmed
SALE OF LIQUOR WITHOUT LICENSE.
11722. Pat Mullen the State. Monroe c, 9.
Niblack, 1.-THE indictment charged that appellant
sold to Campbell Intoxicating liquor in less
quantity than quart to-wit one gill OF beer, etc
tits claimed that the indictment defective in not
alleging that the liquor was sold in less quantity
than quart at time. The words used sufficient
to convey the mind the definite idea that less than
quart of beer had been sold at time to the prose
cutting witness and this was sufficient. The evidence
is tflcia IN al
trmed.
UNLAWFUL SALE OF NEUTRALITY-SUSPICIOUS.
1870. Daniel A Stout vs. the State Monroe
Howk J.-When the evidence shows a sale of beer
under circumstances which make the sale unlawful it
will be presumed in the absence of a
contrary showing, that the beer SO sold was
not for the court to permit counsel to read to the
jury decision of the Supreme Court making it part
of their argument the jury being the ultimate judges
of the law well the facts. 1913 Ind. 234 10 i'd
5l6D Judgment affirmed.
EGLIGENcE-LIABILITY
1854. Allen Yerkes VS.. Job Sabin, Vermillion c.
Black C.-When ferryman for hire receives upon
his boat for transportation traveller with horses and
vehicle who retains possession and control threof the
responsibility of the ferryman is not the common law
responsibility of common carrier of goods IN his ex
elusive custody The ferryman has certain duties to
perform, and is liable for loss injury occurring
through his neglect to perform them unless there be
contributory fault the part of the traveller.
Among these is the duty to provide reasonably safe
for the departure from the boat of horses and
vehicles transported thereon. (52 N. Y, 81; Am.
r., sos; 1877 Mass, 1874; Wharf Neg, 7O6.l
The complaint charged that the injury occurred
through the negligence of the defendant in keeping
his boat in unsafe condition The burden OF show
ing the negligence upon the plaintiff. In its spe
cial finding thecourt did not find whether not the
defendant guilty of negligence and without such
finding there could be conclusion of law against
him. (75 Ind, 5SOD Judgment affirmed
VOID TAX sALE-LIEN OF PURCHASER
1925. Josiah Lock VS.. Milton H. Catlett. Van
derburg S. c.
sale of land be void the purchaser will not be entitled
lien the land for his purchase money If it
conceded that such sales unconstitutional that
the auditors conveyance is Intellectual to convey title
the lien of the State for taxes would not thereby be
impaired The deed being invalid the States lien for
the unpaid taxes is transferred to the grantee See
81 Ind. ZIG; IA i'd. 81; n i'd; 221) Petition for
rehearing overruled.
AMENDED BRIEF-PRACTIcE.
1I17o Jonas A. Jones VS.. Amy Castor Mont
gomery, G. G.
brief of the appellee originally prepared contained
statement of the objection that the assignment of
errors is joint, but afterward 'surreptitously
inserted in the brief and pressed upon the court.
Under rule 16 it stood before May IA, 1884,
appellee had the right to add matter to his brief
any time before the taken up for consider
alton. Besides whether objection be made in the
brief or not if the record shows the defect this
is not required to disregard it because the appellants
counsel was not aware of it. Petition Overruled.
Observation-Disclosures ERROR.
1882. John j. Section VIM. Randolph.
Huntington c. c.
collars J.-Dissenting opinion on petition for
hearing The petition for rehearing ought to be
granted. The answer consisted of general denial
and three affirmative pleas A demurrer
ruled to the second, and third and sustained to the
fourth. His honor reviews the answers at length
and concludes that every fact set up in the fourth
answer was admissible under the second the only dis
tincton being that the fourth styled plea of fail
aofa xyl he is cd
orally a defense to the action. The code requires
that the facts shall be stated and when this is done
stated and not by what the plea may be
STYLED The facts stated in the fourth answer
being admissible under the second the sustaining of
the demurrer to the fourth was at best harmless
error.
10745 Thomas j. Breedlove John P. Bundy,
Marion S. C.
Bickner c. c. The complaint charges that the de-
PENDANTS conspired together to cheat the plaintiff that
Breedove and Mcclellan came together to the plain
tiff and the former made certain false representations
which Mcclellan corroborated and on which the plain
tiff relied because he had confidence in Breedove
brother Mason; that day or two afterwards others
of the defendants came to the plaintiff and made SINH
lar representations The complaint showed good
cause of action against all the defendants. word
was omitted from the complaint but this defect might
have been amended by the court below and must be
deemed amended here. (R s., sec. 65S.
Petition for rehearng overruled.
SECRETARY OF BOARD OF HEALTH-TERM OF
oFFICE-PLEADING.
1904 Robert M. Weir vs. ex rel Andrew J. Ak
tell. Monroe G. G.
Elliott c. J.-Where an inferior court is intrusted
with the power of appointing officer for term
definitely fixed by statute the officer will hold for the
term so fixed. The statute empowers the county
board elect the secretary of the Board of Health
for one year, and when the election has been made
the power is exhausted and another election cannot
be held within the year unless there is vacancy 1t
is the act of appointment and not the recital of
record which clothes the appontee with official char
acter and the fact that the record is not signed does
no
1893 One who seeks to obtain office must aver
such facts as show him to be eligible to the
Office. (S7 Ind, 800; 81 i'd, 1922 Where
demurrer is overrued to of two sim