The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-05-26


necessary decrease in the rental value of
the property is erroneous, because an abut-
ting owner who does not own the fee is
entitled only to damages for such injuries
due TO the construction of a railroad in
the street as are rot common in kind, TO all
the community in general, and not simply
excessive in degree in his case.
RECORD - CONTINUANCE - BILL OF
EXCEPTIONS.
1889. Marion Grim. Court. Campbell VS..
State. Affirmed Jordan, i'll. Where the
ant was in court when the cause was con-
tinued and the trial court, upon an issue
being raised as to the legality of this con-
tinuance, heard evidence which is not in
the record and decided the continuance to
have been legal, this court will not dis
turb its ruling on such issue. 2. Unless It
afirmatively appears that the longhand
manuscript of the evidence certified upon
appeal was filed in the clerks office before
becoming a part Of the bill OF exceptions,
1t cannot be considered by the Supreme
Court.
BRIBING VOTER-ELIG1BILITY OF OF
FICE HOLDER.
1891. Martin C. c. Carroll VS.. Green.
Reversed; McCabe. il: The con st u
disqualified for holding office during, the
term for which he may have been
bride, threat or reward to secure his cleo
ton" is self-executing without the aid of
a legislative enactment 2 Evidence that
township trustee gave q person So TO vote
for him is competent in a proceeding to
contest his election on the ground that he
is ineligible to the office.
PLEADING = REFILING COMPLAINT
STRIKING OUT.
1923. Marion c. c. Ellis VS.. Indianapolis
ct al. Affirmed Howard, il. The re-
filing of the same complain to which
demurrer has been sustained, merely term
ing it an amended complaint, is void act,
and no question can be made as TO rulings
upon such amended complaint, as it forms
N n n n 40 A
complaint filed with reference TO COM
plant so relied is not good for any pur-
pose, not being sufficient in itself TO form
the foundation Of an action. 3. Such an
amended and supplemental complaint
should be stricken out on motion.
EVIDENCE-LONG MANUSCRIPT
BILL OF EXCEPTIONS.
1895. Wells c. C. Yellow Hammer Gas
tirmed; Hackney J.-Unless the record az
Tentatively shows that the Ming or the
clerks Office preceded its incorporation in
the bill of exceptions, questions depending
upon the evidence will not be considered in
an appeal in which the transcript contains
what purpOrts to be the reporters original
manuscript of such evidence.
MORTGAGE-PRIORI TY-PRACTICE.
17949. Laporte c. c.. Schmidt ct al, VS..
Zahrudt. Affirmed. Monks, il Where
the seller of land took mortgage to secure
the unpaid purchase money, which was
not recorded until more than forty-ftve
days afterwards and the purchaser, IN the
meantime, had given a mortgage TO secure
advances of money to be thereafter made,
and the same had been recorded, but only
a small part of the advances had peen
made, and the money was all advanced be-
fore the holder of the second mortgage
recorded firsD had any, actual knowledge
of the existence of the first mortgage, the
mortgage for advance is, as TO all money
advanced, prior and superior to the mort
gage for unpaid purchase money. z. Where
the special finding of facts shows that
mortgage was not recorded for more than
forty-five days after its execution, the law
concludes that 1t was fraudulent ana Vold
as against a subsequent mortgage in good
faith for a valuable consideration, ana that
fact need not be specially found by the
court.
STREET IMPROVEMENTS
CORRECTION OF RECORD.
1853. Scott C. C. Everett ct al. VS.. Deal
ct al. Affirmed Howard j. l. The i'm
provement of a street under contract with
the board of trustees of town cannot be
enjoined after work has actually begun
pursuant to such contract, unless the board
was without jurisdiction to enter into such
q contract. 2. 1t is competent for any trl-
bunal to correct its record so as 10 make
it speak the truth.
ATTACK ON NORTHUMBERLAND
GUARDIAN.
1885; yigo c., c.. Asbury VS.; Frisz. Re
cured by fraud and without notice to the
person to be affected thereby may be at
tackled and set aside in a proceeding in
which shows that a proceeding TO nave a
guardian appointed for the present plaintiff
missed in May, and that in the following
September, without any application to re-
instate or any new pleadings being MED,
a judgment was rendered in the absence
of this plaintiff, appointing a guardian for
his estate, and that such judgment was
procured by a fraud practiced upon the
court by which it was led to believe that
he was confined in the insane hospital and
his health would not permit his presence
in court while, in fact, he had been dis
charged as cured long before, had been Tor
several weeks at work, and this fact was
well known to the person VINO procured
himself to be appointed guardian, states
sufficient grounds for attacking the Judg-
ment appointing a guardian.
MOTION FOR NEW TRIAL-F1LlNG-
PRESUMPTION.
1909. Vanderburg c. c. Habbe VS.. Niele.
Rehearing overruled. Howard il. From
the fact that the court is shown to nave
taken up and ruled upon an application
for q new trial in case decided on the
last day of the preceding term, it may be
presumed, nothing appearing TO the con-
trary, that such motion was MED on the
first day of the term, although the ruling
was made on the thirteenth day OF the
term. 2. An entry by the clerk in vacation
of the filing of such motion does not over
come the presumption that it was properly
filed on the first day of the succeeding
term, as such vacation entry is not part OF
the record and must be wholly dlsreSarded
PROMISSORY ES-COMPLAINT-
PARTY IN INTEREST
1922 Noble c. c. Mitchell VS.. st. Mary
ct al. Affirmed. Hackney, il A note,
in which the drawers and indorsers sever
ally waive 'all defenses on the ground OF
any extension of time that may be given
by the holder or holders to them or either
of them" is not commercial paper ne
gotiable as inland bills of exchange. 2, A
complaint to recover on such note against
an indorser which fails to aver diligence,
as required by Section 1918, r. S., 1894, is
insufficient on demurrer. 8. The treasurer
of an association who has purchased such
notes with the money of such association
and on its behalf, and taken an assignment
to himself of the mortgage given 10 secure
them cannot maintain an action in his own
name to collect such notes and foreclose
such mortgage, as he is not the real party
in interest
MOTION-COLLATER ATTACK
PLEADING CONCLUSION.
1909. Whitley c. C. Long ct AL VS.. Ruch
eft al Affirmed. McCabe, c. il. Enter
tanning and sustaining a motion to strike
from the files motion to set aside a 1udg-
ment is tantamount to overruling such mo-
tion to set aside. q Where the record
shows that a court Of general jurisdiction
had acquired jurisdiction Of the subject
matter and of the parties a judgment rem
dered by ii cannot successfully be collat-
orally attacked by q motion to set II aside.
g A statement in such a motion that the
rendered the judgment sought TO be vacated
is the statement of mere conclusion OF
law.
PRACTICE - DEMURRER-DRAIN
1903. Clinton c. C. Earhart eft al. VS..
Farmers Creamery ct al. Affirmed. Hack
ney, il. Pleading TO the merits before
the court has oVerruled a demurrer is