The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-05-31
THL COURT RECORD.
Supreme Court-May 20.

Supreme Court-May 30.
Hon. Byron h. Elliot, Chief Justice.
109SS. Aaron Rothchild Jno. NJ Reid. Kos
ciusko @, @.
Black C.-The only question involved in this case
is that of the suiceney Of the evidence to sustain
the verdict careful consideration of the evidence
does not warrant a reversal of the judgment. Judg
ment affirmed.
REDEMPTION OF REAL ESTATE-VOLUNTARY PAY
MENT.
1924 Conn Nut Life Ins. Co. VS.. Daniel Stewart
ct al. Marion S. G.
Black, c.--Appellees brought suit to foreelose me
ehanes liens upon certain real estate on which appel
liant held mortgage Appellant was made party to
the suit and was defaulted. Appehees had Judgment
in their favor the property was sold by the sheriff
and purchased by the appeees. Afterward appellant
fled its complaint to review Tie Judgment to which
demurrer was sustained at special term. This ruling
was reversed at general term While the cause was
pending in special term and before the appeal to gen
ral term, the year for redemption being about to
pire, appellant paid the amount of money into
che clerks once necessary TO redeem from
such sale, filing at the same time a written
protest, reserving the right therein to
for the recovery of the money paid, if the judg-
ment at special term should be reversed. This was
an action for the recovery of said redemption money
from the appellees. The payment made by appellant
for REDEMPTION must be regarded as voluntary pay
ment. e Otto sd; 7 Page 1879 Appellant paid
the redemption money with full knowledge of the
facts without any demand request, and in the
sertion of right for its own benefit protest ac-
compsnying Payment cannot constitute proof of i'm
mediate and urgent necessity for payment. and be
of avail only when the eonstraint is otherwise shown
and then merely as evidence OF want of acquescence
Judgment affirmed.
MISCONDUCT OF JURY AND BAILIFF-PRACTIcE.
1892. Thomas Luck vs.. The State. Floyd c. C.
Hammond, Appellant tried for murder.
Complaint is made of misconduct the part of the
jury after they had retired for delberaton and mis-
conduct of the officer who had them in charge The
aidavits filed by the State negatived those of the
appellant far to show that the jury were sub
1ected to influence whatever by others and that they
were in respect attempted to be tempered with.
The conduct of the bailiff in walking with the jury
about the city and passing the place of the homicide
was reprehensible and was deserving of punishment.
But such misconduct will not authorize trial,
where it shown that the jury not subjected to
any improper influences and where the verdict is
clearly right upon the evidence q Blkf, IA; "a
Ind, l51.) Judgment affirmed.
REFUNDINe TAXES ILLEGALLY COLLECTED.
11452. Frank Mcwhinney VS.. City of Indianapo-
SIS. Marion S. G.
Franklin C.-Complaint for the recovery Of money
paid for the purchase of property at Illegal tax
property to the corporation but that the proceedings
void for the reason that the property not
contiguous to the city that appellant relied upon the
validity of the proceedings and of the tax assessment
and did not know that the property not eontig
to the city. Sec. 1857 r. s. provides that the
Common Council may at any time order
the amount enormously assessed against and
collected from any taxpayer to be refunded
to him. This language is in form pelmissive but in
legal effect it is mandatory. (S6 Ind, 5S7) The
purchaser has the same remedy that the owner would
have had il he had paid it. The city received the
in fault gave nothing in return for it. and it would be
unjust and uneonscionabe for it to retain the money
Where sale is made by the county authorities
property not liable to taxation, under the various
provisions of the statute there be doubt to
the duty Of the county to refund the purchase money
with interest. The rule must be applied to
nieipal corporations. Judgment reversed.
ESCAPE OF FIRE-coNTRIBUToRY NEGLIGENCE.
10s47 Wabash etc. Railway Company VS.. George
W. johnson. Fountain c. @.
Goleriek G.-Compaint to recover for property de-
w wi %
pellants right of way. 1t is averred that the fire orig
mated through the negligence of appellant but the
complaint insuteielt ia not showing that the in
jury caused without the fault negligence of the
appefee wabash etc Railway Company VS.. johnson,
No. 10s49, this term.) Judgment reversed.
INJUNcTION-cAsE PENDING-PRAcTtcE.
1918 James Martin vs. Robert Z. Orr Fountain
Howk. J.-Complaint by appellant for an injunction
to prevent the appellees from issuing execution
upon Judgment wherein he surety, claiming that
he had been released surety by the fail
of the payee of the note to institute proceedings
when notified By him to do. The proceeding of the
appellees to obtain execution still pending and
undetermined, and in that the court had ample
jurisdiction to hear the matter complained of by APP
pellant and afford full relief both legal and equta-
Bile as the facts would warrant In such case relief
by injunction will not be granted. High. Inj sec.
46; 81 Ind, 545) Judgment affirmed.
GUARDIAN AND MISREPRESENTATION
1850 Milton Garrigus, guardian, VS.. Andrew R.
Black, C-An infant is Liable for his torts, and
should be sued alone therefor 1t then the duty of
the guardian to appear for and defend the suit;
IA Ind, 1879 The guardian should be sued
SSIiy where ne is personally ,5 liable q ipd
action "a brought against the guardian alone for the
tort OF his ward demurrer the complaint should
be sustained Judgment reversed.
APPEAL-wEIeHT OF EVIDENCE
1113G T r.. & !; Railway Company Hardin
Jackson. Hendricks c. G.
Best, C.-Action to recover for mare killed by ap-
pellants cars The disputed question is whether the
mare was killed by collision with the train or BY
jumping upon pile Of ties lying by the railroad. No
one saw the injury inflicted and the evidence tends
strongly to support the latter theory but there is
some evidence also which tends to support the the.
DRY that she killed by collision aud therefore the
verdict can not be disturbed go Ind, 445; 81 i'd,
1922 Judgment affirmed.
APPEALs-AssIGNMENT OF ERRORS.
IO449. Philander Fl. Boyd vs. Janetta Pfeifer.
Biclne c. C.-The assignment of errors is the APP
Tellants complaint in this court and no question viii
BE- Be Re wh ss not bdp pyss o
assignment of errors, with specifications charging
sors against one only Of the appellants is not sp
Judgment affirmed.
PRoNIIsoRY NoTE-coNsIDERArIoN
1145s James Barcus Alvin c. Elliott ct al.
Fulton c. c.
Franklin, C-Appellees sold to appellant certain
land of one Hively, who owed them $3.50 for making
the sale They took appellant for that sum and
gave him receipt to Hively therefor with the agree
ment that the amount should be credited the pur-
chase price of the land Held The receipt operated as
valid transfer to appellant of appellee CLAIM against
lively, and was sufficient consideration for the note.
Judgment affirmed
State Board of Education.
The State Board of Education was in session
yesterday to prepare statements Tor the State
and county examination of teachers, and pre-
pairing a plan for institute work, all of which is