The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-05-31
THE COURT RECORD.
Supreme Court Opinions.

written exceptions and it is made the duty
of the court to make such order therein
as right and justice mas require by order
ing a new appraisement.
1850. Board, etc. VS.. Owens. Hamilton
c. c. Affirmed McCabe. 1.-THE evidence
deed by mistake of the craftsman and all
the parties and appellee is entitled to
I6S2S. Toney VS.. vending. Cass C. c..
Affirmed. Daily, j. = Where a married
woman having dominion over her money
deposited the same with her husband at
his request, he became chargeable there
with as trustee and his heirs are liable
to account and a Judgment may be rem
husband invested in the land no resulting
trust is created in the absence of a show
ing that the funds wenr into the lands
at or before the time that the title vested
1912. Flora VS.. Russell ct al. Knox, C.
G. Affirmed in part, reversed in part.
toward, J..One who maliciously and
without probable caus procures a search
warrant to be issued will be liable as for
a malicious prosecution. Malice may be
1t is only when the facts within the
knowledge of the prosecuting witness are
fully and fairly stated to the prosecuting
attorney that his advice will be any pro-
lection against a suit for malicious prose-
1888. McGahan VS.. indianapolis Natural
gas Company. Marion C. C. Affirmed.
Hackney, c. J:-Where a plumber EN-.
ployed to locate and remedy a leak Of
natural gas in a house notified the gas
company to turn off the gas, which IL
failed to do. and he sought the leak with
a lighted lamp and was injured in the
explosion. held the intervening agency OF
the accident was appellants act in carry
ing lamp which caused the explosion, and
he could not recover.
dell. Dearborn c. G. Affirmed. DALEY, ].
When a contract with a school township
is in force in the name of the civil town.
ship, before recovery can be had thereon
reformation should be had on the ground
of mutual mistake.
1888. Horton, Administrative, ct al. vs..
Songer. Fountain C. C. Affirmed. Hack
ney, J.-It is rarely available error to over
rule a motion to strike out, and 1t Is GER
legged irrelevant matter does not supply the
basis of the Judgment. 2. Where a party
would be entitled to interest IN the recov-
PENDANT the plaintiff could recover no joint
judgment against him and the other de-
PENDANT, he is not a necessary party. 3.
Where a joint Judgment debtor pays the
judgment, he is subrogated by law, and
contribution may be had against the judg-
ment debtor. although he is deceased and
final settlement of the estate made.
1887. Michigan Mutual Life Insurance
Co. VS.. Leon. Delaware c. c. Affirmed. Cof-
fey,, J:-If an applicant for insurance in
good faith gives truthful answers TO such
questions as are asked him; but the agent.
whether purpOSely or not, but without the
knowledge or connivance of the assured,
inserts false answers. the wrong is that of
the company, and not that of the assured.
and this rule is applicable, although a copy
of the application is attached to the policy
where the agent is a general agent.
Appellate Court Opinions.
1926. c. & f R. r. Co. VS.. House. Por-
pear that a railroad company negiigently
permitted fire to escape from the right
Of way to and upon the lands of adioin-
1857. Murray ct al. VS.. w. w. Kimball
Company. Howard c. c. Affirmed. Rein
agent cannot hold the note as escrow
without violation of duty to his principal.
Gavin. AN Indictment under Section Els,
r.. S. 1884, for extortion In receiving illegal
fees must show that the fee was claimed
service.
1871. Morrow VS.. Geeting ct al. Howard
c. c. Affirmed. Ross, J.-Where a drain
is never completed as an entirety and not
accepted as completed the surveyor has
no jurisdiction either to determine the ne
cessity for making repairs or to levy an
assessment therefor.
1865. Woodruff VS.. Board etc. Noble c. c..
Afirmed Lott; If the county makes
trustee cannot contract in reference thereto
with a physician.
Reversed. Davis, J.-Where there is no
warranty, express or implied as TO the
condition of devised premises the tenant
must determine for himself the safety and
fitness Of the premises for use and occu-
pancy.
1lG5. City of Lawrenceburg VS.. wesler.
J.-If the owner is proved to have plated
ground on which an alleged street is sit
uate or has done other acts showing a
dedication, such as selling lots, with ref
erence TO the plat on which the street is
laid out. or by accepting a plat made to
show such street, it will be sufficient evil
dence of such dedication. But the mere
showing that some one not proved TO be
the owner had placed on record a map or
plat in which a street is laid off will raise
no presumption against a party In possess
sion who has proved title in himself,
f f%epty v Mlrs POSSESSION pe6of os for : a, more on than ian
part of a city to keep a street in repair,
on of mere nonuse of a portion or all of
such street by the public for a considerable
time, will not authorize a jury to infer an
abandonment.
12is. c., C., G; & St; l. Railway, Com
Lotz, J.-When a pleading is susceptible
OF being construed on various consistent
theories, or the predominating theory is
uncertain, the theory adopted by the trial
court and upon which the cause was tried
will be adopted by this court. 2. Where
all the facts are susceptible of being de-
scriDed by the witnesses and placed before
the jury, the opinion or a witness is not
admissible.
Ills. Citizens Street-railroad Company VS..
Stoddard. Marion S. c. Reversed. Davis,
J.-Where a boy is shown by the aver
ments Of a complaint to be non sui iuris
and sent by his sick mother on a necessary
errand across a street upon which the de-
PENDANT operated a street railway il can
not be said as a matter of law. when the
DOl was injured Dy q street car. that the
mother was in fault. 2. A defendant must
stand on a motion to direct a verdict in
its favor in order to predicate error on an
adverse ruling thereon. The constructive
admission of the truth of the facts estab-
hshed by the other party and the mplied
waiver of objections and exceptions pre-
viOusly taken and reserved should be he'd
TO have been made for the purposes OF the
motion only. and the subsequent introduce
ton of evidence by defendant by leave of
court operated a necessary withdrawal of
such motion and of the exception TO the
ruling thereon. and the making of such
motion did not deprive the defendant TO
question on appeal the correctness OF such
rulings in relation to the introduction of
evidence by the other party. 5. Declarations
os the boy not made In the presence OF the
transaction, but ten minutes after, are not
part of the res geStae.
1918. Holmes VS.. Board. etc. Sullivan c.
G.. Affirmed. Gavin. 1.-THE court cannot
say as a matter of law that in order TO
preserve the order and form of a regular
election ticket the size must be maintained
in publishing it in a newspaper as required
by statute.
1303. Walker vs.. Board. etc. Hamilton c.
c. Affirmed. Gavin. J.-Affirmed on the au-
thority OF No. 107S.
l0S6. Jacks VS.. LolHs. Parke c. c. At
firmed. Davis. Affirmed on the authority
OF Jean VS.. Pennsylvania Company, IS N.
f., l59.
ilS3. Guardian. VS.. Kirby.
Morgan {. c.. Affirmed. Ross, This court
viii not weigh the evidence.