The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-12-30
Supreme Court.

Supreme Court.
Hon. W. f. Niblack. Chief Justice.
The following decisions were rendered Dec. 90:
1850. john Roche VS.. Patrick W. Mofitt ct
al. Huntington G. c. Reversed. Niblack G.
Where cross complaint in a proceeding to
foreclose mortgage contains general demand
for judgment upon an Indebtedness evidenced
by note, and finding is made as to
Including ATTORNEYS ess the res
Court will regard the cross complaint as a de-
mand for a personal judgment on the note. and
not in legal effect a complaint to foreclose
mortgage executed to secure the note, so that ifa
copy OF the rote is not filed with such cross-com-
plant it is bad
1176l. G, T., St L. & c. Railway Company
VS.. John W. Gaines. Tippecanoe c. c. Re-
versed. Mitchell, J.--Appellant's track crosses a
highway by an overhead bridge, fifteen feet
above. Trains approaching from the west are
not visible to persons on the highway
coming from the north. except at a
point about $50 feet distant from the
crossing, and not until the trains reach point
forty feet from the bridge The whistling post
was about l, 300 feet from the crossing. Appellee
was driving his team on the highway on a slow
trot, the wagon making considerable noise. st
point 1875 feet from the crossing he stopped to
o5 A ar t sfan hearns signal 5nss
gave a 'long biast," and the fire.
man rang the bell until the crossing
was passed. The team and the engine reached
the crossing about the same time. While the
team was under the bridge the whistle was
blown the engineer having no knowledge of the
team below The team ran away, whereby
plaintiff was injured. Held: That the sounding
of the whistle on the bridge was not negligence
per Sc, and that no negligence in the railroad
company could be inferred from the facts
1929. Lake Shore & Michigan Southern Rail
way Company vs. Mary Foster. Elkhart c. G.
Affirmed. Zollers, J.-Action to recover the
value of a trunk and its contents. The evidence
for the plaintiff is. substantially that she was
going to Chicago at 425 o'clock on the morning
of Nov. IL, 1882, and asked one Quinby to find
her man to take her trunk to the depot. AT
9:3O of the evening before an expressman came,
took the trunk to the depot and put it under the
Quinby had told him. Quinby saw the baggage
man, and said: Here's trunk for No B. put it
in the baggage-room. He replied: mo, leave
it out there; it will be all right" The baggage
ticket is presented and then gives check for it.
but not without. The baggageman denied his
expression to Quinby and that he had seen
Qunby that night. The trunk was lost from
the platform The defendant demurred
to the evidence. Three rules arise on
such demurrer: e.. Such demurrer admits all
facts which the evidence tends prove of
which there is any evidence, however slight, and
all differences which can be logically and reason
ably drawn from the evidence. ~ This APP
Evidence of the party demurrinc will not be
conflicts will not be reconciled, and
evidence favorable to the demurring party
will not be considered: if there is any
opposing evidence upon the same question of
fact. evidence will not be weighed, but every
fact of which there is any evidence will be taken
as true. Upon the evidence, the plaintiff is en-
titled to recover A railroad company may receive
a trunk as baggage, and become liable for it's loss
az i'm
piled understanding that the owner is
to become passenger, although he
has neither purchased a ticket nor paid
fare. In such case the express or implied agree
ment to become passenger makes the owner
in such sense a passenger as to make the
railway company liable for the loss of his bag
gage up to the time when the train leaves, and
it is ascertained that the owner has not kept his
agreement by becoming passenger. Ii a rail-
way company is willing to receive trunk as
baggage and assume the responsibility of hold
ing it as such upon the express or implied
agreement of the owner to become passenger,
there is nothing to prevent it from so doing.
The evidence shows that the trunk was so re-
ceived, and that appellee kept her agreement by
buying ticket and becoming passenger. Ap
pelee was rot bound by any regulations limit
ing the authority OF the baggageman as to
the time when he should receive bag:
gage, unless she had notice or was
put upon inquiry Persons have
no right to send baggage to depot to be kept
for an unreasonable time. If the time is unreas
enable, that might be notice, but from $50 p NJ.
until 4:25 A. n. cannot be regarded as unreason-
able, nor sufficient to put appellee upon notice.
1884 State ex rel. Daniel G. Neff VS.. Fran
els M. Faurate ct al. Henry G. G. Affirmed.
Howk, J.--Where an assignment Of error is that
several paragraphs Of answer, enumerating
them. are bad, it is joint. and if one paragraph is
good the error is not well assigned
1O96l. City of Delphi ct al. vs.. Nathaniel
starzman ct al. Tippecanoe G. c. Affirmed
Elliott, J.-(1) One more citizens of a ter
ritory sought to be- annexed to city may main
tain suit to prevent the consummaiion Of an
attempted illegal annexation. % Where ter
ritory sought to be annexed is not plated the city
must petition the Board of County Commission
ers, and secure an order from that body.
g. Where complaint states facts sufficient
to snow right to have municipal corporation
restrained from exercising corporate powers
over territory not legally annexed to the city,
it is not bad for failure to that the treasur-
er had the tax duplicate in his hands.
1921. Mary Small VS.. James Boyer, ct al
Clark G. c. Dismissed.
1886 VIM. H. Poore vs.. Sarah c. Morning
star; Morgan G c. Dismissed; =
Newton G. G. Dismissed
1912. VIM. Rutledge VS.. Jeremiah Nc
Namara. Shelby c. G. Dismissed.
11776. Robert r. Washburn VS. Commissioners
of Shelby County. Shelby c. G. Motion to mod
ify judgment overruled.
1890 John McPheeters vs.. John B. Wright.
Noble c. c.. Motion to dismiss overruled
1928. Jonah w. Glidden VS.. David H. Henry
Henry G. c. Leave granted appellee to with
draw petition for rehearng
1884. Presbyterian Mutual Assurance Fund
VS.. Mary Ellen Allen. Floyd G. G.. Appellant
required to file bond within thirty days or
show cause
Superior Court.
Room 1-Hon. Napoleon b. Taylor. Judge.
TeStardav-(Ia Tutavvlep al I'm
ma NJ Sullivan; suit for partition of real estate.
Partition made.