The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-06
THE COURT RECORD
Supreme Court-March 3.
Hon. Geo. V. Howk. Chief Justice.


UDGMENT-SURETY-BA
1854. Alpheus Burke James II. Pinnel. Boone
c. c.
collars, J-Action by appellant to enioin the levy
of an execution by Pinnell upon his property. The
answer shows that Feb II, 1878, Baker com
menced suit against appellant and others note
which Pinnell surety for appellant, Appellant
was adjudged a bankrupt Feb. % and ON March
judgment rendered against appellant principal
and Pinnell as surety. Pinnen afterwards paid the
judgment. The debt was not proved in the bank
ruptcy proceeding did appellant set up his bank
ruptcy in the Baker suit in any way bring to the
knowledge of the court the fact of his bankruptcy nor
has he since taken steps to have the vacated
This answer good on demurrer. The Judgment
not extingushed by appellant discharge in bank
ruptcy. Brown Elchel, l Ind, 2; May, 3O3)
Judgment affirmed.
NEWLY DISCOVERED Observation-Disclosures
10743. VIM. Rag4dale ct al. Matthew Mat
thews. Lawrence G.. c.
Hammond, jim a complaint for a new trial after
the term at which the judgment was rendered it must
be shown that the new evidence, by the use Of due
diligence could not have been found III time for the
trial before the close of the term 1t is not su
fcient to generally that due diligence used
to discover the evidence but the facts constituting
such diligence must be specifically stated. az Ind,
164 Al i'd, $685. 40 i'd, PCS; Is id, 1861 Judgment
affirmed.
ACKNOWLEDGEMENTS CAUSE OF
DEATH
11104 T. II. g. /. Ry. Co. vs.. Sarah E. Buck
administrator Montgomery G. c.
Elliott, J.-Appellee's husband was on train of
appellant dark night, and the train approached
the station near winch tile deceased HN6u the Gus
tomary signal was given and the brakes applied. The
train, however, ran by the station and stopped
trestle bridge, and on attempting to alght deceased
fell through the bridge and seriously IN
iured His injuries caused surgical fever, con
fning him to his bed for some time, and
weakening his system 50 much that
from which he died. 1t is contended that de
cedents injuries not the proximate of his
death In such cases the pr0Xnate cause must be
determined by the jury from all the facts. go Ind
568 93 Pa. St. 1929 The only practical rule is that
the wrongdoer whose act is the immediate of the
injury shall be held for all the resulting damages
Sc N Y so 7S Ind. 20S So i'd, 3Sl l Suth
Dam, 81 rs Ind; 1866 70 id, 81; 50 i'd, 42s; So
i'd, 531 carrier Of passengers is held to the e1er
else Of very high degree Of and for failure to
this is responsible to passenger who suffers
(26 Ind, 228; id, $50; % i'd, 26; Thomp. Car,
200, 204; Hutch Car, 6l2) There no evil
dence explaining the failure to stop at the station or
of the of stopping on the bridge There was a
prima facie case of negligence Whether deceased
was guilty of contributory negligence question
for the jury. The court cannot say as
matter Of law that, under the ,circun,;
was guilty of contributory negligence in alightng
from the train when he did. passenger who alghts
when train is brought to full stop the usual
alghting place is not guilty of conributory negli-
gence, unless the danger was apparent. 90 Law R.,
2T1; 81 Wise. 1873; % Ind 444; Al i'd. As; 10
Pit, 1871 90 n. Y, 1861 80 Am. r., 1913 Judg-
ment affirmed
EQUITY oAsEs-JURY-PowER OF JUDGE-FRAUD
N9AeSA AAetNsAH
Marion G. c.
Niblack J.-Appellant's complaint alleged that
while the wife of one Barnett the latter obtained di
vorce from her, and she decreed $l.300 alimony
afterward they remarked but before doing exc
cuted antenuptial contract, in which she waived
any further interest in his property. Barnett died
leaving will. His estate vas divided by compro
mise among his heirs, appellant being a party TO
the division, and receiving the full amount of her
alimony. She charged that the divorce OBJ
tanned by fraud and that her agreement TO
the division of the property was obtained
by the same means, and asked that they all be
nullad, etc. The court, of its motion, called
jury to try the question of fraud, and after appel
lants evidence had been submitted discharged the
jury, holding the evidence to be insufficient. Held
Tho suit action for relief against series Of
alleged fraudulent practices and would have been,
prior to June 10 1852, matter of exclusively equit
able jurisdiction. 1t optional with the court to
submit any of the questions to jury. and their
dict would only have been for the information of the
court. Pence Carlson Ind. l.. Mag. 2lS)
Such being the case. when there was u failure of
proof sufficient to justify verdict for the plaintiff,
the court could discharge the jury and proceed with
the as if the jury had not been called. His Hon
next considers the evidence and finds that it was
not sufficient to sustain the charges of fraud and i'm
position made by appellant. Judgment affirmed.
John Anderson julia Hubbell Elkhart c. c.
Rehearinc denied.