The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-09-23
THE COURT RECORD.
sppreme Court-sept. .1o.

hon. Byron n. Elliott, Chief Justice.
5TEsFA7dKNTARY nSsFRUSfESF4aDRFEeI4 Exc
lcUTIoN.
11416. Francis NJ. Moore, treasurer. vs.. Isaac NJ
i. stephens; executor. Union;G. O.
Howk J.---Appelantsfled the following instrument
as q clam against the estate Of the maker
my death my estate shall pay TO the treaslirer
etc,, the sum of 5000, the interest Of which
isto be used forthe benefit OF ssuperannuated and
xornnnt preachers of the White River Conference.
Given this i3rd day of May, "A D. 1869.
'.yyitnsss L. X. Manning s, Z - 49,
Held; The instrument testamentary in its char
acter and being subscribed by only one witness was
void will. t55 Ind, 402 709id. 1861 The
fact that such an instrument not revoked during
life will not render itgYalid after ibis
death. lo4 Ind, 550J Judgment. affirmed
DEMURRER TO EVIDENCE PRACTICE.
1881. Emsley Wright administrator, vs. John
W. Julian ct al Marion g. G.
Hammond, after appellant had introduced his
ieydenee the appellee, who was the defendant, de-
INJURED to it aud the demurrer was sustained While
the evidence does not make eout very salts
material allegation Of the complaint. Where, if the
jury had passed upon the evidence and returned A
verdict for the plaintiff, this court on appeal could
not hold that the verdict was not sustained by suf
heienh evidence demurrer to the evidence should
be overruled. 80 Ind. 4O3 81 id 500 IS al
43ls7So Id, -59l y Judgment reversed.
5usTIcEs-voID NEUTRALITY-SUSPICIOUS.
1908. VIM. G. Brown vs. James w. Gable
Huntington G. G.
Elliott C.J.--Where Justice of the peace has rem
defed Judgment against one4who had no notice of
theaction the Judgment is void and the party is en-
titled to be relieved from it. l84 Ind. 2o9] BIT If
the defendant does not ask relief within the time for
granting new trials setting aside defaults the
1Sstace has no Authority to entertAin the motion 49
Z1S; 80 i'd, 47l;61 i'd, rs; "A i'd. 221; SO i'd
113l pheproper course snch a case is for the de-
PENDANT to apnyto court Of superior jurisdiction to
en1oln Enforcement of the Judgment, and decree
the Judgment annulled. az Ind, 374; OIL i'd 50; "a
i'd, $50 81 i'd 1872 Judgment affirmed.
PARTITION sUIFs5TITLE ACKNOWLEDGEMENT
.l1749. Abraham F3eenor rs: Martha e. Driskil
Washington @. G..
Nblaek, little to real estate NAV he issue
tined and determined in partition proceedings and
when tins is done, the Judgment binding upon all
the parties But when no such issue is Joined the
proceedings simply divide the landas held under ex-
lsting titles into separate shares. (S6 Ind 527;
Wash.R. r 6sec.s6O) Wherethe entry of a Judgment
Is SO obscure asnot to express the dissemination
of the Court with sufficient accuracy reference should
bemade to the pleadngs and the entire record when
eonstrulag the judgement. 1856 Ind A. IL iowa
it is the nterlocutory order that adjusts the rights
and interests of the parties. 1R. S. Sec 1885; 2
sale of land which cannot be divided is "a final order
from which an appeal to this court will ie go Ind
3S.) Judgment reversed.
MARGIN coNTRAcTs-MUTUAL INTENTION OF
PARTIEs-EvIDENCE.
1916 Wm.sD Whtesides VS.. Lee Hunt ct al
johnson G. G.
Franklin C.-Appellees, as commission merchants
sued appellant for commission and money advanced
trolling question in the is whether or not the
tractlsto be regarded gambling transaction AT
ie an elaborate examination Of the authorities his
Honor concludes rnle an
article is bought for future delivery matter what
the form OF the contract is if the parties mutually
understood and intended that the purch shoud
pay for and the seller should deliver the commodity
at maturity Of the contract, tits legal transac
uon, and the fact that the purchaser is required
tosdeposit amargin and ncreaseit the market re-
qulres, An order TO secure the payment at maturity
does not viate the contract. But if it is mutually
understood dntended that the ARTICLE is not 10 he
sold paid for or delivered but that the fluctuations
prices are to be settled by the payment of differences
the contract gambling one and cannot be enforced
t16C .sI.sJ 433, .453 $50; I7id. So 361;7 Neb.,
l26; 81 M, 33; 55 Pa St.. 1861 While the evil
dence inths shows that the defendant had no in
tention of making actual purchaseof the grain it
fails to show that the plaintiffs did notintend TO sell
and deiiverit andf either party contracts in good
faith he is entitled to the benefit of his contract
may have been the secret intention of the
other. t65 Me-; $40; 80 N, c. 94.) The intention
of the parties was question for the jury. Judg-
ment, affirmed