The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-02-13
THE COURT RECORD.
Supreme Court, Feb. ~, 1885.
POINTS OF DECISIONS.


POINTS OF DECISIONS.
No. 1886. John c. Stone ct VS. John Kopka,
Pulaski G. C. Affirmed. Franklin C-Action by
appellee for trespass by appellants cattle.
There error in excluding evidence that
the cattle were breachy. as it was irnmaterial to
No 1887 Isaac johnson vs. Elijah Hitch ct
al Grant C. c. Affirmed. Bicknell, G. c.
Where all the parties to a bin to review iudg
nent agree to refer the matter in controversy to
a master commissioned, who makes his report
which is confirmed without objection by the
court, and judgment entered and satisfied, it is
binding on the judgment plaintiff. although at
have successfully moved to dismiss the bill
No 1871. Adelne Sibert vs. James Cox
Bartholomew G.. C. Reversed Black, CA will
provided that tract of land should go ia fee SIM
pie to the children of the teStators son share and
share alike, and that their mother should use
and occupy it until the youngest child should
reach majority, 20 educate aud support said
children. Held, that the widow took the land
during the time prescribed, although she did not
occupy it. and under the will she trustee
for the support and elucation of her children.
No 1913. School Town of Rochester VS.. Char
ity Shaw. Marshall G. G. Reversed Frank
lin, C-When an attorney, in argument to the
jury is guilty of gross misconduct and the judge
permits his action. but afterward attempts to
rect the wrong by instructions, there is cause
for reversal
No. l0965. James W. Anderson VS.. wm c.
Mitchell J.-Where defendant to an action in
the circuit court files cross complaint against
all OF his co-defendants, without naming them
more specifically, praying specific and general re-
lief, and, before process is issued thereon, the
original complaint is dismissed, but process is
afterward issued and served on such 'co4defend-
| ants by their proper Names such court ac-
auires jurisdiction of their persons and having
jurisdiction of the subject matter, renders de-
cree by default such decree is binding until it
is reversed or set aside by some appropriate pro-
eeeding 1t is not subject to collateral attack.
Upon collateral attack all antecedent facts
necessary to uphold it will be conclusiyely pre-
sumed.
No l06A VIVA H. Hines ct al vs. James t.
Driver. Hamilton C. c.. Reversed. Elliott j.
III In a complaint for a trial upon the
ground of wly-discovered evidence, the aft
dayItS and the bill of exceptions containing the
evidence given on the former trial May be made
exhibits but they are only part of the pleading
for the single purpose of showing the former
evidence and the newly discovered evidence.
They cannot be resorted to for the purpose of
All other facts essential to the validity of the
complaint must be stated in the body of that
pleading as in ordinary cases. t2) Where evil
dence is discovered during the term at which
the Judgment is given, the defeated party
must apply by motion for trial He
not delay until the close of the term and then
proceed by complaint. g. In a proceeding of
this kind the complaint must state the facts
be set out fully and specifically. ~ The newly
discovered evidence must be shown by the aft
davits of the witnesses to be of material and
decisive character, and where the new trial is
asked for the second tiaae the rude is more
severe a. A new trial will not be granted to
permit the introduction of merely cumulative
evidence. Evidence of the same kind to the
same point is cumulative, and evidence of verbal
admissions is of the same kind when other
verbal admissions to the same point were proved
on the trial
No 1908 Ananias Baker VS. John Carr.
fulton c. C. Affirmed. Bicknell c. C.--What
an agent says outside of the scope of his agency
can not affect his principal.
No 1883. Mccormick Harvesting Machine
Company VS.. Thomas Gray. Pulaski C. G. Re
versed Black Gu La an action upon prom
lsSory notes, an answer by the defendant alleg-
ing that the notes given for q harvesting
machine which the plaintiff had warranted and
that the warranty stipulated that if the
machine could not be made to work
properly it should be returned and repay
Inent made, and alleging specific breaches
of the warranty, and compliance by the defend
ant with what was required Of him. is good ~
To entitle party against whom general YER
dict has been found TO a judgment notwthstand
ing. upon special findings 10y the jury, he must
show fact or facts found by the jury inconsst
ent with the general verdict 81 Where under
the pleadngs, the plaintiff is entitled to recover
his whole demand without any proof. unless the
defendant. by his evidence. establishes a coun-
terclaim which he has filed, and which the
plaintiff has denied. the defendant is entitled to
open and close IT, A witness should not be
permitted to base conclusion concerning the
character of machine upon particular facts
which are not before the jury, and cannot prop
erly be brought before them.
No l1S7L Thames loan and Trust Company
VS.. Henry 81. Devil ct ux. Marion S. C. AT
frmed, Colerick, C.-Ill The Supreme Court
cannot consider or determine controversy be-
tween the parties to an action as to the cause of
the omission to embrace all the evidence in the
bill of exceptions They can look only to the
bill of exceptions it appears {2.) Letters
which constitute q contract are admissible for
the purpose of proving such contract.
No 10S06. John Grimes ct al VS.. Train A.
COe ct al Tippecanos G. C. Gertiorari granted
and issued.
NO ll354. George Holzman ct al. US. Sarah
Hibben ct al. Fulton C. C. Motion to modify
opinion sustained.