The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-01-28
THE COURT RECORD.


1857. Guy VS.. Blue. Kosciusko c. c.
Affirmed. McCabe. III. The use of cpl
thets in a pleading is not sufficient to show
fraud, but the facts constituting the fraud
must be distinctly averred. 2. An error of
the trial court in sustaining a demurrer TO
planning OF the error when he fails to dis
cuss the question in his briefs.
1897. Sutherland Us. O'Donnell. Wash
case is decided upon the authority of cause
No. 1896, Sutherland VS.. Mckinney, de-
cided at this term of court.
c. Affirmed. Hackney, il. A proceeding
to substitute one will. not probated. for
another which has been probated involves
the contest of the latter will and the pro-
cedure must be in accord with the rules
of the statute, which require that the pc
tition or complaint be filed within three
years after the Will has been offered for
probate. 2. When "A right is given and a
procedure for its enforcement is provided
by a special statute, the procedure so pro-
ent procedure. 3. When time is of the es-
sence Of the right created. and the limita-
agreement under which the right in ques-
ton arises, so that there is no right of ac-
tion independent of the limitatiPn. such
rather than effect the remedy. 4. The stat
ute of Wills is speciaI with reference to
the right of contest. .. The general statute
given in which. a will may be contested,
1905. Galentine vs.. Brubaker. Koscius-
kO I. [. Motion to dismiss postponed until
final hearing.
Appellate Court.
1883. Kelso VS.. Kelso. Knox c.. C. Petit
ton for rehearing overruled. Wiley, j.
A motion for a new trial was overruled
June 20, 1893. TO which decision of the court
the defendant took exceptions, and ninety
days We're given him in which to file his
bill of exceptions. The time for filing his
bill expired Sept. Is. 1893; it appears from
the face of the record that the long-hand
report of the evidence was filed in the
clerks office Dec. 81. 1898. Held that as the
evidence must precede the filing. of the
properly In the record. Held, also. that
the bill after having been signed by the
judge must be affirmatively shown by the
record TO have been filed in the clerks
office within the time allowed.
20l2. Cement Company VS.. Wright.
Clark c.. c.. Reversed. Henley. il. A
paragraph of complaint which shows that
the work at which the decedent was en-
gagged when he was killed was entirely diff
ferent from the work which he was en-
polyed to do, and was more dangerous and
hazardous than such work. and had to be
performed witt different workmen, operat-
ing under different rules and methods. and
With appliances and in a place distinct and
different from that of the work which deced-
ent was employed to to do, states facts suffi-
cient to constitute IL cause of action. 2. This
court will not presume that the decedent
knew OF the defects in the machinery, if
any there were, in the face of the allegation
in the complaint that he did not know of
them. 3. Where a witness shows himself
sufficiently familiar with the subject, and
has been in the life insurance business for
eight years. and that his companies supply
him with tables giving the expectancy of
life. he may refer TO his tables and tell the
jury the decedents expectancy of life.
4. The burden of proof is upon the plaintiff
To show that the decedent had knowledge
of any defect in the machinery with which
he worked and which caused his death:
also. TO show that the decedent had not
assumed the risk of danger.
Superior Court.
Room John L. McMaster. Judge.
Daniel Wilson VS.. John Vazen; commits
sion on sale. Dismissed and costs paid.
Haney Reed, ADMINISTRATIVE, VS.. Citizens
Street-railroad Company; damages. jury
returned a special verdict. with damages
at $500.
Maria winoeby VS.. Citizens street-rail-
road Company; damages. Dismissed M
plaintiffs cost.
Room 3-Vinson Carter, Judge.
George W. Cook VS.. Rachael S. Cook: d-
vorce. Finding for defendant and judg-
ment against plaintiff for costs.
Dwight II. Baldwin ct al. VS.. Lizzie Col
lier: replevin. Finding for plaintiffs thai
they are entitled to possession of the goods
Judgment for / cent and costs.
United States Building and Loan Asso-
citation VS.. Harriet g. Thompson. Finding
and judgment against defendant. HarrieI
G. Thompson. for $3.50 and costs.
Sarah Shackleford VS.. Margaret z. Roy
Or trial by jury. Jury out.
Criminal Court.
]. Frank McCray, Judge.
State VS.. Charles G.. Ludwig; receiving
stolen goods. Continued for further evi
dence.
New Suits Filed.
Indiana Society for Savings VS.. MauC
Weaver ct al: foreclosure. Room .
: Indiana SAVINGS and Investment Com