The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-11-24
THE COURT RECORD.
Supreme Court.

1882. B. & o. Southwestern Railway Com
pany VS.. Conoyer. Pike G. G. Ahlrmed Jor-
dan, il If defendant, upon the close
of plaintiffs evidence in chief, moves the
court to direct a verdict on such evidence
in his favor, he must stand by his motion,
for if he subsequently introduces his own
evidence he will be regarded as having
waived or receded from his motion, ana
therefore no question can be considered
under such motion on appeal. Such motion
should be made at the close OF all the evil
dence and not upon a part thereof. 2. Where
the instructions of the court are considered
by counsel as too general 1t is his duty TO
tender instructions sufficiently specific and
request that they be given. 3. This court
will not consider any question growing out
OF the courts refusal to give certain IN
structions when the record does not affirm
atively show that those given were all that
were given in the cause. 4. Where the evil
dence is conflicting this court will not dis
turb the decision of the lower court upon
the evidence.
1902 Spacy VS. Evans Warren C. c. Re-
versed Hackney, J.-Parties may waive the
effect of a survey in pursuance of the stat
ute, and either by agreement or another
survey, establish another line or corner.
1887. Grzesk VS.. Hibberd ST. Joseph G. G.
Reversed McCabe, J.-Where the title to
real estate is held by husband and wife
jointly, and there Is a conveyance by ooth
so that the title may become vested in tho
husband to enable him to secure his indl-
vidual debt by mortgage thereon, and that
all parties to the transaction knew that the
0J
the statute forbidding the wife to enter into
contracts of surstyship the mortgage is
void.
1910. Riley VS.. the State. Allen c. c. At
firmed. McCabe, il. In the. absence Of
the affidavit and information in the trans
cript this court cannot know that
the evidence admitted was not ad-
MISSILE Hereunder, or that it did
not tend directly to prove some one
or more of the crimes charged in such aft
daVit and information. 2. All preSumptions
So rrrVlr x.tkx
of the proceedings of the trial court, and
before that can be overcome the appellant
must present a transcript Of the record af-
Tentatively showing the commission of the
error complained of by him.
1926 Pullen VS.. Mckee. Marion S. G. Az
firmed. Monks J.-Where the questions
presented by the assignment of error de-
pend upon the evidence the latter should
be in the record, and the record should
affirmatively show that the longhand man
uscript of the evidence was filed in the
clerks office before it was incorporated in
the bill of exceptions
1927. Pullen VS.. Edwards. Marion S. c.
Affirmed. Monks, J.-This case is decided
upon the authority Of No. 1926, decided this
term of court.
1878 Pullen VS.. Stuart Marion s. c. At
firmed Monks J.-This case is decided upon
the authority of No 1926, decided this term
of court.
1904 Kerner VS.. B. & o. Southwestern
Railway Company. Martin c. c. Affirmed.
Hackney, J.-Whether a person is acting
a vici-principal or a fellow-servant de-
ponds upon the particular service in which
he is at the time engaged. If he is perform
ing a duty owing by the master to the in
jured servant, by authority Of the master,
and does it negligently, or If he negligently
omits duty of the master which he is
delegated to perform, his negligence is that
of the master. But if he Is engaged with
the servant injured in the common service
of the master, not involving some duty of
the master, he is a fellow-servant.
1876. City of Fort Wayne VS.. TT. w. &
j. r. r. Company. Whitley c. G. Affirmed.
Hackney, J-Where a city attempts by pro-
ceedings under Sections 1923. 1929, ct seq
r. S., 1894, TO open and extend a public
street 1t is essen tial to the validity of such
proceedings that the owners of the adjoin-
ing property be notified of such contem-
plated action of the city.
1873. Shepard VS.. National Bank. Marion
S. c. Reversed. Howard, G.. il
When a county clerk leaves the
has the right to appoint some one
70 take charge of the trust funds aban-
doned by him, and to collect and admins
ter them in the interest Of the beneficiaries
entitled TO them, and it is immaterial
whether such officer is styled receiver or
trustee. 2. Where a bank applies the trust
funds of a county clerk to the payment
of the latter's individual Indebtedness to
the bank, with his direction and consent,
upon the appointment of a receiver to take
charge of such officers affairs an action
will be against the bank by such receiver
for the money received from the clerk in
his official capacity.
177S4. Shepard VS.. National Bank. Marion
S. C. Reversed. Howard, c. il. Where
upon the default of a county clerk the
court appoints a receiver, he has authority
to take possession of the funds due and UNI
collected by such officer, and also all trust
funds whether collected or not, and as re-
ceiver he is trustee of all assets belonging
to the clerk 2. Where two suits are iden-
ticle the suit brought first will abate the
latter
1880. The State VS.. Hates. Green c. c.
Reversed. Howard, c. 1.-THE re-enactment
of statute or a provision of a statute is
not repeal thereof.
1916. Putt Putt Noble c. c. Affirmed
Jordan, il When a widow refuses to ac-
cept the provisions of the will made by her
deceased husband and elects to take under
the law. and files a cross-complaint to a
suit in partition, and seeks to set the will
aside, she is not required to furnish the
bond provided by Section 276I, r s., 1894.
provided the suit is brought within three
years from the probate of the will. 2. Where
instructions given by the court had any
bearing upon the jury in the trial court
Will depend upon the evidence, and in the
absence Of the evidence from the record
this court cannot say whether they infiu-
enced the jury or not. 3. Where a judg-
ment is supported by the special findings