The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-09-16
THE RECORD OF THE COURTS.
United States District Court.
Hon. w. A. Woods, Judge
To-day there will be no special calls.
Supreme Court.

To-day there will be no special calls.
Supreme Court.
Yesterday the Supreme Court rendered the fol-
lowing decisions:
No. lO517. Lucian B. Thomas ct al VS.. Noah
d. Simmons; Hancock G. G. Reversed. Nib
lack, in. F. and wife executed mortgage
to secure the payment of two notes. The mort
gagees assigned the notes to w. H. and one p.
At maturity w. Fl. brought suit to foreclose and
obtained decree. Subsequently, p. took a
junior decree, with order for execution
against the other property of d. +. for any bal
ance which might remain unpaid after the mort
gagged lands should be exhausted; he also recov-
cred personal judgment against W. F. Then
P redeemed the mortgaged lands from
and received from w. FL. an assignment
of the sherifs certificate of purchase After
p. received sheriffs deed as W. HIS
assignee and then sold the land with warranty
He then assigned his decree of foreclosure
against NJ. f. and wife without having taken out
execution TO one T. NJ. F. executed mortgage
on other lands to one S., which were unincum
bered except by judgment in favor of a bank.
Later, NJ +. was adjudged bankrupt, and at
the sale of his estate his wife became the pur-
chaser of his interest subject to the bank judg-
ment and the mortgage of S. Subsequently, for
a consideration she conveyed her interest to the
estate. paying off the bank judgment. IT,. as
the assignee of p, sought to subject these other
lands of M. F. to the payment of his lien.
Complaint by S. for an injunction, and if no
injunction be granted that he be subrogated
to rights of the bank and that his own
mortgage lien (which had been entered satisfed),
he declared valid and subsisting. Section GA Of
the code provides that when there is express
written agreement for the payment Of the money
secured contained in the mortgage, any sepa-
rate instrument the court shall direct in the
order of sale that the balance due On the mort
gage snd costs which may remain unsatisfied af-
ter the sale the mortgaged premises shall bs
levied of any property of the mortgage debtor
But neither p nor his assignee L. were entitled
to levy upon other property of M. f until the
mortgaged lands were exhausted by judicial
sale, and a deficiency ascertained. freeman.
JuGg:. Sec: TO-! When a mortgage has
appropriated to his own exclusive
use the fund or property accepted by him or
those under whom he claims and security for
the payment of the mortgage debt, and that the
This presumption may be overcome by proof of
an express agreement. Z. having waited until
the time for redemption had passed, and taken
a sheriffs deed as complete title in fee simple,
without reference to any claim under his own
decree, there is prima facie evidence of merger
of his decree under the greater estate acquired
from his assgnor. Boone Mortg. Sec. al 143
But by conveying with warranty precluded him
from asserting any anterior lien. Being pre-
cuded, his assignment of his decree carried moth
ing of value In Indiana an owner Of land
may have an injunction to prevent cloud being
cast On his title. (98 Ind. H. The conclusions
of law and findings of fact being imperfect, the
judgment is reversed
No. 1923. Western Union Telegraph Com
pany VS.. John M. Mcclure. Clinton G. G. Re
versed. Elliott, IA corporation has a right
to make reasonable bylaws for the regulation of
It's business. A rule by telegraph company
that transient persons sending messages which
require answer, must deposit an amount sufi-
cient to pay for ten words In such case the
signal thirty three will be sent with the mess
age signifying that the answer is prepaid" is
reasonable regulation; and plaintiff, in an &C
ton to recover the statutory penalty for failure
to deliver message, who refused to comply
herewith by depositing twenty five cents. can
not recover for the company's omission to de-
liver.
No. 1887. Julius Lang, Treasurer. VS.. Charles
NJ. Clapp administrator Noble c. c. Affirmed.
Howk. J.-Under the assessment law of Dec.
Il, 1872, county auditor could not place on the
tax duplicate, for assessment, any omitted prop
erty. The act of 1881 (Sec. 64l6 r. S., 1884, Civ
ing him such power is clearly prospective in its
operation.
No. 1lO61. Fountain Irens Vs. Cincinnati, Wa
bash IL Michigan Railway Company. Hunting
ton G. G. Affirmed. Collars J.-Appellant
was injured in collision with one of appellee's
trains. Appellee had to cross its track above its
depot to go to his work at fax mill. On the
day Of the accident he directed by his
ployers to 60 to field, and in going he went
on a sidetrack of the railroad to its
junction with the main track. thence
the main track, when an approaching train
struck them. 1t is averred that this way was
the only convenient and proper one; and that the
engineer gave no signals. The road was straight.
Although there is an averment Of want of negli-
gence in plaintiff, the facts stated must control
the general averment. Appellant was tres
passer and guilty Of contributory negligence.
Appellant may recover if the injury was will
fully inflicted, though he was guilty of negli-
gence (95 Ind, 2S6. The charge of willfulness is
based on the specific wrongs and facts stated. If
these do not, as a matter of law show that the
injury was willfully inflicted there is no wiful
injury. 1t is not averred that appellee's agents
and servants saw appellant or knew he WAS on
the track The omission to give signals on the
straight track does not constitute wilfui injury.
No. 1929 Lucinda Bryson vs.. VIM. McCreary.
Switzerland G. G. Rehearing denied.
No. 1855. John Hancock Mutual Life ms.
Go. vs. Glide S. Patterson. Marion S. G.. Re-
versed. Mitchell, G.. j.
No. 10288. Union School Township VS.. First
National Bank Montgomery c. c. Rehearins
No 1887. Francis Coyer vs. Lewis c. Davis
ct al Newton, @. G. Dismissed.
No. 122S7. George Hodgson VS.. Jacob T. Paine
ct. al. Parke c. G. Dismissed.
No. 1205l David Saunders VS.. Eliza J. Ben
der. Warren c. C. Dismissed
No. 1864. Charles L. Cooper VS.. L. E. & St.
L. r. W. Co. Floyd C. c. Reinstated
No. 1857. City of Lafayette VS.. D. P. Mart
man. Tippecanoe c. @. Certorari granted.
Today-The judges will sit in consultation.
The Charlottesville & Southwestern T. P. Co.
VS.. Fletcher will be called for oral argu ment in
the afternoon.
Superior Court.
Room l-Hon. N. b. Taylor Judge.
Observation-Disclosures was rendered for the
defendant in James +. Davis vs.. John IIatshaw.