The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-11-27
THE COURT RECORD.
STPREME COURT.

SUPREME COURT.
1918. State ex rel. Lyons VS.. Phillips.
Yigo S. c. Affirmed. Jordan, c. J.-By
Section III of the fee and salary statute of
1895 (Sec. 6523, Burns 1900, the county re-
corder is required to charge a fee of 30
cents for the registration of a mechanics
lien.
1859. Citizens Street-Ry. Co.. VS.. Stock
dell. Hancock c. c. Reversed. Bowling,
il. a material fact, not admitted, can
be established in courts of justice i'm no
other way than by evidence. .. Where the
facts in the complaint are denied by de-
PENDANT the latter is not required to ad-
monish plaintiff at any stage OF the trial
that ne must introduce proof of any fact
necessary TO make out his case. ). That
a fact is well known, and readily proved,
does not excuse the party on whom the
burden rests from making proof of such
fact. 4. Where a common carrier is sued
for damages resulting TO a passenger plain
tiff must prove that the defendant owned
or operated the road at the time of the
injury.
is499. Cannon vs.. c., G., c. & ST. L. Ry.
Co. Floyd c. c. Affirmed. Baker, il.
In an action based upon the negligence of
the defendant plaintiff must show that the
defendant owed her a duty TO exercise the
particular care the omission Of which Is
alleged to have been the direct cause OF
a strip of ground, belonging TO a railroad
company, is neither exclusive nor adverse
it will not prove either an implied dedica-
ton or a prescrfptiVe right 8. A mere
licensee in crossing a railroad right of way
is bound to know that a railroad company
has no power to license the use or its
tracks in such a manner as TO interfere
with its duties to the public as a COM
mon carrier. and the only duty the COM
pany owes to such persons is to use rea-
sonable care to avoid injury to them after
their danger is discovered.
1888. First National Bank VS.. Greger.
Jackson G. G.. Reversed. Monks, jim an
action by a bank to enJoin the collection
of a certain amount of taxes charged upon
the tax duplicate. such amount sought to
be enjoined being the difference between
the amount entered upon the duplicate and
the amount assessed by the State Board of
Tax Commissioners, the latter amount be-
ing the less, the complaint is sufficient If
it shows that the State Board assessed
the property at the smaller amount upon
which the taxes have been paid.
1857. New VS.. Town of Bourbon. Mar
shall c. G.. Reversed. Jordan, e. il. All
party appellees who are interested in APP
peals pending in this court must remem-
Der that failure on his part to file within
the time allowed. a brief or argument In
support of the judgment assailed, may be
accepted and deemed to be a confession of
the errors assigned by appellant, and In
the absence of a showing that the neglect
was excuSable. the cause Will be reversed
without prejudice.
1882. c.. & s. r. Railway Company vs..
kenney. Clay g. c.. Affirmed. bowling, j.
Il. If a court has jurisdiction over the per-
son of a defendant the judge of the court
at chambers in vacation possesses It,. =.
Where a defendant appears TO an action
and expressly challenges the sufficiency OK
the facts stated in the complaint to con-
stitGte the cause of action such action is
a full appearance and a waiver OF all OBJ
jections TO the jurisdiction of the court
over the person of the defendant. 3. The
mere misjoinder of some of the party plain
tiffs will not defeat the jurisdiction of the
court. 4. Upon appeal from an interlocu-
tory order appointing a receiver the INSULT
cheney of the facts stated in the complaint,
including the improper joinder of parties
plaintiff, will be disregarded except so far
as 1t relates to the appointment prayed for.
D. 1t is not necessary that the party apply
ing for a receiver should have exhausted his
remedies at law. 1t is sufficient il it ap-
pears that such remedies are Inadequate or
would be Intellectual, or that the appoint
ment of a receiver is necessary to preserve
the property or fund or TO secure justice TO
the parties. 8. Nor need a creditor first re-
duce his claim TO judgment before asking
for the appointment OF a receiver. Z. In
solvency is provable by ~evidentiai facts
showing its existence and by the direct
of those who know the financial
condition of the person or corporation. s.
An excess of assets over liabilities does
not of itself render the debtor solvent.
1920S. O'Brien vs.. Louer. Madison G. c.
Affirmed Baker IA property owner
cannot enjoin the making of certain i'm
provements by an adjoining owner within
the fire limits" of a city when plaintiff
will sustain no special damages. the i'm
prOvement sought TO be made not being a
nuisance.
1866. Hubbard VS.. Goss. Morgan c. c.
Affirmed. Monks. il. The notice required
by Section III of the tax law OF 1891 as
amended in 1925 (Sec, S532, Burns 1901 ap-
plies only when the board of review is
acting i'm cases of individual citizens under
said section and not 10 cases when the
board makes orders for the purpose of
equalization under Section $3.50. Burns 1901.
2. No notice is provided for i'm Section 1922.
Burns 1901. when the board of review for
the purpose of equalization raises certain
divisions of a township.
1852. Demarest VS.. Holdeman. Elkhart
G.. g. Reversed. Bowling, il. Where an
action is In the nature OF a suit in equity
the suficiency of the complaint is TO be de-
ermined according 10 the rules Of chancery
pleading. ,. In chancery bills of discovery
are allowed in cases where the complainant
for want of does not know
which of several parties 10 sue or where the
circumstances are such that he is unable
to determine which OF several parties IS
liable TO him. It is sufficient 10 sustain A
bill against the charge of mul"tifariousness
that each defendant has an interest in
some one matter common to all the parties.
and where the subject of the action has
become so complicated and entangIed that
the rights of the parties are involved i'm
doubt and il is difficult to determine who
is liable and who Is not. except upon a
hearing in which all persons in any wav
affected or interested are before the court.
equity permits the jOinder of all tbosa 50
related To the controversy and who have
a common interest IN some one or more
branches of 1t.
1927. Adam. etc. Company vs.. Stewart
Wabash {. G. Affirmed. Hadley. il \
mortgage executed by a fraudulent pur-
chaser upon goods that have come into his
possession in the usual course of trade.
and over which he has continued to exer-
else dominion. and give forth the appear
ances OF ownership. by mixing and eXpos-
ing them 10 sale with his other goods. will
be held valid as TO a mortgage who. in
consideration or the mortgage and without
notice OF the fraud. has EXTENDED the time
of aymen Of his debt or assumed any new
or additional obligation. . Replevin will
not lie against one legally in possession Of
property in favor of one who has no su-
perior right. 3 a contract induced nv
fraud Is not void. but Voidable only al the
option OF the party d~efrauded.
ls5ls. I. n ;. +. Ry. CO. vs.. Glover. Madi-
son G. g. Reversed. Monks. il. Sections
900 AMI 1851 Burns, 1901. being penal and m
derogation OF the common law. must be