The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-02-16
THE COURT RECORD.


1854 Magnuson VS.. Billings. Noble G. G.
Affirmed Hadley IL A rule of court is
a law of practice and extends to all liti-
giants who come within its purView, and
who, in conducting their causes, have the
right to assume that it will be uniformly
enforced by the court in conservation Of
their rights as we'll as to secure the prompt
and orderly dispatch of business. 1t is also
a Judicial act, and when taken by a court
and entered of record becomes a law or
procedure therein in all matters to which
it relates until rescinded or modified by the
court. ?. Although it may be error for the
court to sustain motion when 1t Is not
presented according 10 the rules or the court,
yet il win not be sufficient for a reversal
when it is harmless in effect upon the com
planning party 3. When a new pleading
raises no new issues it is not error for the
court to refuse to grant continuance on
account of such pleading.
1854 Udel VS.. Citizens Street-railroad
Company. Marion 5. G. Affirmed. Downing,
il When a special verdict is returned a
person objecting thereto must interpose his
motion for a Venire denOVO at the proper
time. 2 Where a person Is not passenger
upon a railway carriage he cannot demand
the duty owing from the company TO pas
sengers be paid to him. 3. The mere fact
that a person is a child between eight and
nine years old does not make him any less
q trespasser If the facts show him to he
such. T. If after an Intellectual attempt to
get on a car at a proper time and place
the person abandons that intention and be-
comes treSpasser he loses the right TO
that measure of care and protection which
a carrier OF passengers IS required to extend
to who seeks to be carried as a pas
Senger. >. The act of March H. 1895. con-
corning proceedings in civil cases sufficiently
expresses the subject of the act in the title
and does not violate the right OF trial by
jury. 6. Where d special verdict is requested
no instructions are proper except such as
are necessary to inform the jury az to the
issues made by the pieadings, the rules for
weighing and recOncilng the testimony who
has the burden of proof to the facts to
be found with whatever else may be neces-
sary to enable the jury clearly to under
stand their duties concerning such special
n he.
Appellate Court.
2039 Tibbett VS. Zurbuch Allen S. c. Re-
versed. Wiley, il The theory of a plead
ing is determined by its general scope and
meaning. ?. complaint must be construed
upon the theory which is most apparent
and clearly outlined by the facts stated
therein. 3. A complaint cannot proceed upon
more than one theory. A. Where an action
IS upon an assumption to pay note which
the defendant assumed 10 pay but failed 10
do so. and which plaintiff was bound 10 pay.
and for which payment plaintiff is seeking
reimbursement Ii is necessary that he aver
and prove a payment of the note himself.
273G. McElfresh vs.. Odd Fellows Accident
Company. Dearborn G. g. Reversed Black,
G. Ut Is not necessary nor proper 10
state facts which are merely eVidentiary in
a complaint. 2. In an action upon an insur-
ance policy the language of the policy in
its usual meaning will control In avering
the disabilities received and for which the
policy was given.
1850 Wilson VS. State ex rel. Hudson.
Greene g. G. Motion to reinstate overruled.
superior Court.
Room II L. McMaster, Judge
Epitomist Publishing Company VS. James