The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-02-02
THE COURT RECORD.
Supreme Court-Feb. I.
Hon. Geo. V. Howlz. Chief Justice.

Hon. Geo. V. Howk. Chief Justice.
CRIMINAL neutrality-suspicious. SENTENCE.
1870. William P. Smith James w. Hess
sheriff. Marion S. c.
collars J.--Habeas corpus by appellant to procure
his release from prison. The facts follows: On
Aug 81 1888 appellant pleaded guilty to charge of
withheld" On Oct. 27, 1888 the record shows that
appellant in court, in person and by counsel and
judgment and sentence were pronounced upon his
plea. The judgment of court of competent iuris-
dicton is void unless the thing lacking making
it So is apparent from the face of the record If the
infrmity do not SO appear the judgment is merely
voidabe in direct proceeding for that purpose
Freeman Judge. (Sec. 116; 16 Am. Dec, 702; rs
Ind. 90; 81 i'd, 49, Under sec 1867, r. s., the
the court had power to delay sentence The record
does not show for what reason the sentence de-
layed and the presumption should be that it de-
layed for proper and legal reasons Upon the face
of the record the judgment - regular. But
appellant permitted to show chat when sentence
withheld he twenty-siX years old, and
allowed to depart from the presence and custody of
the court, without bond recognzance and that he
absent part of the time from the State Whether
said section authorizes the letting Of adults go good
behavior is not decided but it to admit ey
denee dehofs the record in this collateral attack If
the action of the court was illegal the remedy by
appeal. % Ind, 40; ID 81; 90 ID, 81; Hurd
Habeas Corpus, 1926; Cooley Const. Linn. star page
34S; SO U. s., 49, The refusal to discharge appellant
right. Judgment affirmed
1896. Christopher Gillette Daniel Hill Elk
Franklin, C.-The questions presented in this case
are substantially the as those decided in Hill vs.
of that case the Judgment is affirmed.
NON OBSERVATION-DISCLOSURES ACTION IN THE
STATE
10S74 Sarah Busenbark ct al vs.. VIM. W. Healy
Hammond, J--Action under section 2442. r. S.
by appellee against the distributes of estate TO
recover a debt due from the decedent Appellants
shows that the claim filed against the es
tate about eight months before final settlement and
that appellee continued to prosecute it till within
twenty.one days of final settlement when he volunta
III.
having been in the and hence not out the
State during the whole of the six months prior to the
final settlement of the estate A nonresident who
prosecutes an action IN any court in the State, either
in person or by attorney Is regarded as being present
in the court. @ Ind. 54S; At i'd. 3l5) The an
swer sufficient Judgment reversed
! wnFULLNEss AND NEUTRALITY-SUSPICIOUS.
l1167 L., N. \ & c. Railway Company vs. Anna
Grace Shanks Monroe c. O.
Franklin, C.-Action for injuries sustained by the
tuning over of truck appellants platform. The
court instructed the jury that if the defendant
guilty of gross and wiful negligence in the and
the plaintiff was guilty of slight negligence only the
plaintiff could recover. There was nothing in the
complaint evidence in regardto willfulness There
no degrees in negligence and gross negligence is
no more than mere negligence When willfullness is
not charged the plaintiff must make out of
mixed negligence in order to recover. COntributory
negligence however Slight, defeats the action Cf.
IL. & |. Railway Company Graham-decided last
Aprl-and authorities therein cited) For mere neg
ligence punitive damages cannot be given. Judg
ment reversed.
PRoMIssORY NoTE-NovATIoN.
11171. George w. Mcclellan ct al. VS.. John Robe
johnson C. c.
Howk, G. J.-Appelee sued appellants on note
signed by them trustees of u Masonic lodge The
fifth paragraph Of answer that the note was
given for money loaned TO the lodge; that appellee
agreed to take the note of the lodge Endorsed by Dow
ell surety, and the note given was so intended:
that when the note matured the lodge placed money
in the hands of Dowe to pay it off and Dowell ten
dered the money to appellee, who refused to receive
it. and in consideration that the lodge would keep IT,
agreed to discharge Dowel from liability. and look
only to the lodge for payment to which the lodge
sented took back the money and applied it to other
uses. These facts show complete novation of the
debt evidenced by the note 90 Ind. sos; q i'd.
406; rs i'd, POP; 80 i'd $500 Judgment reversed.
The following cases were also decided abstracts of
which will appear on Monday
Belinda Matthews VS.. Naomi Pate. Lawrence C. c.
Reversed Elliott j.
Pnkie Pattsop vs. James S. Smith. Backford c.
c. Affirmed Colerick, c.
VIM. Robeson vs. John S. Martin. Franklin c. c.
Martin v Vert vs.. Mary c. Naylor Montgomery
O. c. Affirmed BicInell, c. G.
Madison County VS. VIM. b. Burford. Rehearing
refused; Elliott. j,