The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-01-05
THE RECORD OF THE COURTS
SupreES5 Court-Jan. 3.
Hon. George V. Howk, Chief Justice.
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MISUNDERSTANDING EVIDENCE.
109OS; Hiram Hand ct al vs. Ira A. Kidwell
ct al. Madison c. &.
Niblack, J.-Action by appellants to recover
balance OF purchase money The evidence was
sharply conflicting, tending to support the de
Tense OF payment and to uphold the plaintiffs
case. 1t would sustain verdict either way.
Where such is the case this court will not inter
fefe. Appellants were not injured by the exclu-
sion of any of their offered evidence. Such facts
as were in any wise material were proven by
other witnesses. Judgment affirmed,
BILL OF EXCEPTIoNs-APPEAL BOND.
1000. David NJ. C1umley vs. Joseph p HEX
man ct al Blackford c. c.
Hammond, J.-Where a written instrument
constitutes part of the record without being
made such by bill Of EXCEPTIONS or order Of
court, and it has already been copied into the
transcript, the clerk may make the same a part
OF the record by inserting in the proper place a
reference to the page and line of the transcript
where the same can be found. $50 Ind, 345; II
i'd, 543; A i'd, 265; 60 id, POI; 20 i'd. Oil
motion in the trial court to dismiss an APP
peal from an inferior tribunal is not part of
the record unless made so by bill of exceptions
or order of court. "a Ind, 277; 80 i'd, 81
Where, on appeal from county commissioners.
no appeal bond is filed with the county auditor,
the appeal may be dismissed. (le. S. sec. 5713.)
Judgment affirmed
CONGRATULATIONS TNCUNBRANCEs.
1OS34 Eleanor Masters VS.. John F. Tempeton.
Union G. c.
Elliott, i'm an action to foreclose a mort
gage the widow of former owner of the land,
who claims an interest for unpaid purchase
money is proper party defendant, and her
rights may be adiudicated in such action. 80
Ind, 40; 81 i'd. 329 90 i'd, GA As i'd $50; IS
Id, SOB. In Works Practice, IL md 399 and
o Ind, 317, are cited as sustaining the PROPOSE
tlon that prior encumbrances are neither neces-
sary nor proper parties but this is an error as
they decide exactly the reverse. Our later cases
are in harmony with the doctrine which has so
long prevailed and are not as seems to be sup
posed, declaratory of new rule. (S2 Ind. 575;
a i'd; l. see also, Story Eq. Pl., 1871; 10 Wall,
513; IA How, 81 Where grantor is solvent
when the conveyance is made his subsequently,
solvency does not affect the validity of the CON
veyance as Ind, 800; So i'd, 81 When a ven
doris lien has been abandoned by taking other
security it cannot be revived. % Ind, 151.)
Judgment affirmed
NEUTRALITY-SUSPICIOUS. OF SECURITIES
1882 Fred Weik ct al VS.. David c. Pugh ct
al. Monroe c. G.
Black, CA surety is entitled to the benefit
of all securities for the debts that are held by
the creditor, and if the creditor surrender. re
lease or waste such securities, without the
surety's consent the latter is discharged to that
extent. (49 H., $40; % Mo- PA; 20 Ind, 347;
81 i'd, 1916 Where contractors bond provided
for the retention of 10 per cent. of the compen-
satlon until the completion of the work this CON
stitutes security in the hands of the creditor
within the meaning of the rule. But its pay
ment to the contractors would only release the
sufeties pro tanto, and when pleaded as a com
plete defense to the action on the bond the an
swer was bad. On appeal, the presumption Is that
the admission of imnaterial evidence did not
influence the verdict TO the injury of the object
ing party. (45 Ind, 43, g. } Judgmentafirmed
RES ADJUDIcATA-DEATA OF DEFENDANT-JU-
RIsDIcrIoN.
1O,765. Noah j, Clodfelter VS.. Henry c. HUI
lett. Montgomery c. G.
Franklin, C.-Where, onappeal to the Supreme
Court, cause is reversed for error in the pro
eeedings, each party to pay half the COSTS there
is no final adjudication upon the merits of the
case. Where the court has acquired jurisdiction
OF the subject-matter of the suit in the lifetime
of the decedent, his death does not take away
that jurisdiction, but upon the substitution of
his administrator the cause proceeds upon the
original jurisdiction acquired r. s., sec 27l
II Ind. 49, Where an action is begun against
two joint Debtors and dismissed as to one for
want of process. and the Judgment rendered
against the other is reversed by the Supreme
Court there is no release of the party not
served az Ind, l. And he may afterwards
be made defendant by amending the complaint
Judgment affirmed.