The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-06-30
THE COURT
SUPREME COURT.

C.. Affirmed. Monks, il. Motions TO
modify or change a special finding or TO
make additional findings are not recog-
nized by our code OF procedure. 2. Mo-
tions TO strike OUT and the ruling of the
court thereon in sustaining the motion
must be brought into the record by bill OF
exceptions or order of court TO be therein
properly. And in order to place the same
therein by order OF court the motion and
the pleading to which it is addressed and
the ruling thereon must be set out in fun
in said order. 3. When there is a variance
between the contract described In the COM
plant and the one produced at the trial
this court will consider and treat the same
as amended below. 4. IL is not reversible
error TO override a motion for judgment
on a special finding and conclusions of law.
IL the judgment when so rendered would
not conform 10 the conclusion of law, even
IL such conclusion is erroneous.
1897. Mark VS., North. Delaware G. {.
Affirmed. Hadley, Jan action by an adj
ministrator to recover possession or as
cedent by an alleged wrongful act of the
defendant, does not grow out of a matter
connected with the settlement of a de-
cedent's estate" and its prosecution does
not invoke the exercise of probate juris-
diction, and as governed by Section o4o.
Revised Statutes, 1894. z. A lease OF lands
for e term of years Is personal property,
the title TO which, upon the death of the
holder, passes TO the administrator and
not TO the heirs. 3. A complaint is good
upon demurrer for insuficiency of facts. If
from all its averments IL states a single
good cause Of action. 4 To make an offer
to prove effective it should follow imme-
diately after the adversary's objection and
before the court has ruled.
1925. Campbell VS.. City of Indianapolis.
Marion s. c. Affirmed. Jordan. 1.-THE
Board of School Commissioners represents
the school corporation, a distinct organi-
cation for the civil city, and is in no way
limited or restricted in issuing bonds on
account of the indebtedness of the city.
z A Statutc which ella SSi6eS cities or other
localities to be governed by its provisions,
by a given fixed population according to
the last United States census applies to
all other cities or localities which Under
any federal census in the future may pass
into such class. 3. The act of 1899 (Acts
1899. Page 43f, is in its nature a general
law. T., The terms or words Of a %consti-
tuition depending upon ratification by the
people should he Interpreted in a sense
most obvious to the common understand
ing. 5. TIL debts Of a civil city and those
aggregated TO determine the debt limit to
which either may be entitled under the
Constitution. but the right or power Of
each of these corporations to contract an
fixed by the Constitution. is affected only
by it's own existing debts.
1851. Maxwell VS.. Shirts. Boone c. C.
Application for certiorari refused.
ex rel. School City OF Shelbyvilie. Shelby
c. c. Motion for modification Of opinion
and petition for arehearing overruled.
Minutes
1882. Melissa Weich VS.. the town of
Roanoke, Ind. Huntington C. c. Appellants
brief.
APPELLATE COURT.
S114. City of Huntington VS.. Boyd. Hunt
ington c.. c. Affirmed. Robinson, c. j.
Il. The bill containing the evidence must
Re signed and filed within the time allowed
in order to get the evidence in the record.
2 A demurrer admits the truth Of the
facts pleaded.
32o9. Whitsell VS.. Louden. Monroe c. c..
Affirmed. Black. il The election of a
widow under Section 1855, Revised Statutes,
she will retain her right by statute to one
third of the lands of her late husband, or
Will take lands devised to her by him or a
provision made for her by his will, in lieu
of her statutory right in his lands. 2.
Where the widow of a decedent has made
no election In writing to take under the
law instead of under the will, after hav-
ing caused the will to be admitted to pro-
bate, and having entered upon the enjoy
ment OF the provisions made for her in the
will she Will be regarded as having elected
to take under the will all that she did
take and use, consume, sell and convey,
and as having assented to all provisions of
the will for others inconsistent with her
claim under the statute.
1851. Cox VS.. Roberts. Whitley c. c.
Reversed. Henley, il. On demurrer It
will be presumed-the contrary not being
alleged-that an agreement declared upon
in the complaint was verbal. and. if the
agreement is such as Is required by the
statute of frauds to be in writing, the OBJ
| lection may be taken by demurrer for
want Of sufficient facts. 2. The owner and
holder of a sheriff's certificate of sale Of
real estate is the owner of an interest in
the real estate described In the certificate.
and a contract to assign and sell such GER
tificate should be in writing to be enforced.
1924. State ex rel. Hanna VS.. Kitchens.
L CaSa G.. @. Reversed ComSfocE u A
constable in the levy and sale of property
taken on an execution can retain for his
services only such fees as are allowed by
law and to reimburse for necessary and
reasonable expenditures made by him In
good faith in taking care of and preserv-
ing property seized under valid process,
and is not entitled TO an allowance for the
services of an auctioneer in selling the
property nor Cor clerk hire. 2. 1t is the
duty of a constable making a sale ON ex-
%ecution to sell the same without the serv-
ices OF any austioneer other than himself.
g. An office is accepted with its burdens.
30SS. Bluffton Ice Company VS.. Richard
son. Adams c. c. Petition for rehearing
overruled.
s251. State ex rel. Ciosson VS.. David.
Monroe c. c. Motion to dismiss overruled.
$40. Morewood VS.. Smith. Grant c. c..
Petition for rehearing overruled.
Minutes
$40. solomon Meyer ct al. VS.. Indiana
National Bank. Marion S. c. Appellants
brief.
3247. Salem-Bedford Stone Company VS..
Charles Hit. Washington c. c. Appellee's
brief.
3274. Ida Newman VS.. Jessie Newman
Posey c. c. Appellee's brief.
SUPERIOR COURT.
Room John L. McMaster, Judge.
Jerome H. Scott VS.. Mamie Miles; to re-
form deed. Dismissed for want of prosecu-
ton.
First National Bank, of Richmond. Ind.
VS.. John w. Shigar ct al. attachment and
sarnishment. Part evidence heard and
continued.
Room flames VI. Leathers, Judge.
Sunrise b. Gray VS.. Richard Hardin; re-
ceiver. On trial by court.
Thomas j. Shively VS.. John o. Boyle.
Submitted to court on agreement.
Room 3-Vinson Carter. Judge.
William II. Stringer, receiver. VS.. Fannie
1. Scherer; finding for defendant. Judg-
ment against plaintiff for costs.
Indiana Savings and Investment Com
pany VS.. David Smith ct AL; foreclosure.
Dismissed and costs paid.
Daniel Foley VS.. The New Telephone
Company; contract. Judgment on special
finding and conclusion of law for s409.5 50 and
costs.
The Terre Haute Brewing Company VS..
Abraham Jacobs ct al: notes. Dismissed
and costs paid.
Adolph Coll VS.. Eureka Saving and Loan
Association: on intervening petition of T..
c.. Whitcomb. On trial by court.
CIRCUIT COURT.
Henry Clay Allen. Judge.
On motion Of Joseph Z. Florea, Oscar
4 ~hrotE n1wratA1 a. -