The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-03-08
THE COURT RECORD.
Supreme Court Opinions.

17116 Robert j. Smith VS. State ex rel
Maxwell G. Hamill. Vigo c. c. Motion to
dismiss overruled Howard; c. 1.-The fail
ure OF appellants TO comply with Rule 81
OF this court, to the effect that marginal
notes shall be placed in their appropriate
etc fully autherzes the grantps Sh Of
motion to dismiss the appeal. But where,
pending the consideration of the question,
complete the record by the entry of the
proper marginal notes and references, and
this having been done to the satisfaction
of the court, the motion to dismiss the ap-
peal should be OVerruled.
1886. Ohio & Mississippi Railway Com
panyg VS.; VIM. Dunn. Floyd c. c.. Re
given and refused by a trial court appear
in the. bill of exceptions, with general
charge given and to the refusal of each in
struction, asked. and the bill showing that
those asked were submitted at the con-
cluslon OF the evidence with proper re-
quest that they be given, they become part
of the record under Section 629. r. S., 1881.
The method prescribed in Sections 533, 535
and 629, r. S., 1881, for making instructions
part of the record are not exclusive of each
other. 2. An engineer and car coupler, act
servants, and where the latter alleges that
he suffered injury by reason of the in
competency of the former the burden of
proof is upon him 10 show such incom-
potency, that injuries were caused ag-
gravated thereby, and the absence of con-
tributory negligence and of knowledge of
such incompetency, as well as the presence
of knowledge by the company of such in
competency. 3. Where 1t appears from the
evidence that an engineer had not been
regularly engaged in such capacity, but
had been engaged as locomotive fireman.
and while he had never run locomotive
in regular way upon the road he had
done so on extra occasions in the switch
yard during a year, and that hremen are
often qualified to serve as engineers before
they become regular engineers, and where
not single act of negligence on the part
of such engineer prior to his assignment
to the duties of an extra engineer is shown,
did not when assigned to duty as an en-
gineer in a switch yard, possess the re-
Guisite skill for the proper discharge Of
that duty. and the court should have given
an instruction to the jury that the charges
of negligence in employing such engineer
were not sustained. 4. Diligence in an en-
and this rule applies to railway companies
and their servants.
1861. Board OF Commissioners or Dear
born County VS.. Charles Lods. Dearborn
c. c. Affirmed. Lott, 1.-The Keeping or
hooks. whereby a board of county commits
sioners does not for long time detect that
a county treasurer has given himself double
credit for taxes erroneouSly assessed ana
collected by him. and by such board or
dered to be refunded to the taxpayers con-
cerned, does not constitute a conce at,I nf
Section 800, r. S., 1881, inasmuch as the
board of commissioners has the power to
audit the accounts OF such county treas
urer. and to contract with an expert for
their examination. In consequence, in an
action by such board OF commissioners
against such county treasurer to recover
the funds thus doubly credited to himself,
a paragraph setting out such intricate sys-
tenn of keeping books in reply to an answer
setting up the statute or limitation Is PAD
on demurrer.
i6647. Denton A. Fleming ct al. VS.. Charles
A. Yost ct al. Elkhart c. c. Affirmed.
Dailey I'm an action to set aside a con-
veyance of real estate as fraudulent and
executed without consideration, where the
grantee testifies that he paid the grantor
money at various times and in various
amounts, and had in each instance made
an entry. of it at the time, the entries are
hut as part OF the res gestae TO illuminate
and bring out fully the whole transaction
in regard to the transfer and the consider
tive effect of the evidence In any case Is
within the exclusive province of the jury
trying the cause, and where the evidence
is conflicting the judgment will not be re-
verSed on appeal.
1676S. Lewis b. Brandenberg VS.. George
Hittle ct al. Marion G. c. Certiorari
i7O4S L. T. & St L. Cons. r. r. Co. VS..
Emma B. Miller, Administrators Floyd {.
G. Motion for additional appeal bond sus-
tanned, and additional bond ordered within
thirty days.
Appellate Court Opinions.
100 Louis Deither ct al. VS.; The Fergu-
son Lumber COmapny. Dekalb Z. 9. Petl-
ton for reheaTing overruled. Davis, {. }.
THE statement made in the opinion before
rendered to the effect tnat the motion 10
strike out a part of a deposition could not
he carried into the record by a general bill
of exceptions filed pursuant TO leave grant
ed at a subsequent term OF the court, may
he considered obiter dictum.
No. l152 Jacob Klein vs. State OF lndi-
ana jefferson G. c. Reversed Reinhard,
IA person standing on the opposite side
of even n very narrow street from an
other pointing an unloaded pistol, or
pistol not shown by any evidence to have
been loaded, at the other and threatening
to use it upon him is not guilty Of
sault.
1882 WhitestOwn Milling Company VS.. j.
Frank Zahm & Co. Boone G. c. Re
versed Ross, il 1t is the duty of a
party serving notice upon another at the
10 use due diligence to see that the wit
nesses We're present at the time and place
designated for the taking and not wait
until the day OF taking only TO find that the
presence of the witness could not be pro-