The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-04-27
TIE COURT RECORD.
Supreme Court-April eS, 1885.

No. 1901. Henry Miller Y. White River
| School Township. Gibson G.. c. Reversed
Howk, J.-Plaintiff asked that interrogateries be
| propounded to the jury, and that the facts be
| specially found. The court refused the request
and instructed the jury to find for the defend
| ant upon the evidence Held That sometimes
| the court may properly so refuse and instruct
the jury but where, as here, the defendants ans
wer, consisting of special or affirmative para
| graphs stated no defense and would be held bad
on demurrer, although sustained by abundant
| proof, it is error.
No. 1925 Stephen Fleming ct al VS.. Wal
lace Hight ct al. Monroe G. c. Reversed.
Colerick C.--In proceedings to establish gravel
road, on appeal to the circuit court from the
| board of commissioners the burden of proof is
on the plaintiffs to show that the owners of a
| majority of the whole number of acres to be
benefited have signed the petition as required
| by Section 5095, II. S. 1881; and i'll the absence
| of such showing the finding should be for the
| defendants.
| No. 1894 Hattie E. Gibson vs. Charles E.
| Seymour ct al. Cass c. c. Affirmed Black, G. c.
A testatrx directed that her real property should
go to her husband, subject to named provisions,
for his natural life, ard at his death to her
step-daughter. The husband died first and in
suit under the will held that the wife died in
law.
No. 1854 Jacob H. Sievers VS.. Charles w.
Dickover ct al. LaPorte c. G. Affirmed.
collars, G. J.-Where one has been found guilty
defeat creditors, the law will not extend any aid
| to him by offsetting an amount paid by him
against the judgment.
No. 1860 Asher Kellum VS. Berkshire Life
Insurance Company Marion g. @. Affirmed.
Best, C.-Where the fact and the title of the
| tenant are known to the purchaser, the occu-
pancy of the tenant is not a breach of the
covenant for possession and if no special con-
tract is made the occupant becomes tenant to
the purchaser.
No. 1888 Kasper Hartlep VS.. Edward Cole
Warren c. G. Affirmed. Elliott, J.-1.) The sub
mission of cause to the court for trial without
| asking rule to answer must be deemed a
waiver, and the Supreme Court will treat the
case as if the allegations of the complaint had
been controverted by answer. e. If an exc
cution is regular on its face and issued by a
court of competent jurisdiction, it will protect
the officer, and it is not necessary for him to pro-
| duce in evidence the judgment on which it
issued.
No. 1907 Ost Cook ct al vs. State, ex REL
William Written. St Joseph c. c. Reversed.
Franklin, C.-While the act of March 8, 1885,
provides that liens for assessments for drainage
| shall, upon approval of such assessment, relate
back to the time of the filing of the petition, yet
| II the pleadings in an action to have such liens
| declared prior to q mortgage lien fail to show
the date Of such approval, the Supreme Court
cannot infer that it was before the execution of
| the mortgage The mortgage lien in such case
will be upheld.
| No. 1906 Stephen g. Harris VS.. Phoebe c. Har-
| ris Gibson G. G. Affirmed. Best C.--(1) A COM
plant, by wife against her husband, for de-
sertion and to obtain means for support. failing
| to aver that the desertion was without cause is
cured after verdict. a.. An averment that de-
| PENDANT had deserted plaintiff without making
provision for her support is an averment of her
| right to obtain such support upon the ground of
desertion under the statute, though defective, is
| likewise cured.
| No. 1887. Jacob Stanley VS. William L.
Montgomery Madison c. G. Reversed. Bick-
| nell. C.-(1) Where condition of a bond is
| broken and it is alleged in a suit thereon
whereby an action hath accrued to the plaintiff
against the defendant to recoverable said sum of
| 81, 500, for which he demands Judgment" etc.
such allegation is sufficiently within the general
rule that it must be alleged that the demand is
due and unpaid. e. 1t is an invasion of the
province of the jury to instruct them that if they
find that a party had occupied room at night
with prostitute and remained there for some
time, no one else being present, they should find
that adultery had been committed. a. A
widow is not permitted under the statute TO tes-
| tify as to communications during marriage.
| No. 1858. Madeline Rochester ct al. VS..
John lowering. Tippecanoe Z. G. Petition for
rehearing
PETITIONS FOR RETtEARING ovERRULED.
No. 1921. City of New Albany ct al VS. Ed
| ward White. Floyd c. G.
| No. 11137. Josiah Firtstone VS.. The State ex
| rel. Marshall c. G.
No. 1927. John Brownlee ct al VS. The Com
missoners Of Grant County. Grant G. G.
No. 1888. Farmers Bank of Mooresville vs.
| Valarous Butterfeld. Morgan G. c.
/ No. l0292 John Fuller VS.. Orvin NJ Curtis
| Elkhart G.. c.
| No. 11467 Freeman H. Crawford vs. Charles
| Powell ct al. Hancock c. G.