The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-03-08
THE COURT
SUPREME COURT.

1876. Judd VS.. Gray. Pulaski c. C. Re
versed. Jordan, il. The relief provided
for in Section 1893. Burns, 1894, extends so as
TO relieve an insane person from a judg-
ment taken against him. as being insane
at the time judgment was rendered Is eX-
cusable neglect. 2. In the absence of any
proof TO the contrary the court Is bound
TO assume that "A person who brings an
action in his own name Is a person OF
sound mind. 3. A dismissal of a complaint
in an action by the plaintiff and a with
drawal of his appearance therein will not
operate without the consent of the defend
ant to carry with 1t a crosS-cOmplaint filed
by the latter. and i'm case the complaint is
dismissed the defendant may proceed with
out notice to the trial of his counter claim.
4. A person of unsound mind, before his in
sanity is declared, may be sued in like
manner as other persons, but when such in
sanity is shown to the court it should APP
point a guardian ad ltem to defend him in
the action or suspend proceedings therein
until a guardian under the law can be APP
pointed. 5. Where the court has jurisdic-
ton of the person of an insane defendant
and the subject matter of the action and
renders judgment against him ii is not open
to collateral attack, but is binding until
set aside or vacated in a direct proceed
ing for that purpose. 8. Where the I'M
~soundness of mind is the disputed ques-
ton IL is erroneous to charge the jury that
in case they find a certain person was of
unsound mind at the time of a certain
transaction that the persons dealing with
him at the time are presumed to have
known of his mental weaknes at that
time.
1906. Miller VS.. Coulter. Clinton c. c..
Affirmed. Bowling, c.. il. No formal pc
tition is necessary to ask that a Will be adj
mitted to probate. If the request TO admit
the instrument to probate is presented in
the form or a petition, the original in
strument must be produced in court, but
no copy of il need be filed with the petit
ton. 2. Objection to the probation of a
will must be made in writing, verified by
affidavit that the same is not made for
v~exation or delay. 3. A person, one of the
hQnRHHl1rleG IN a Will mas me rlQnf 10
allege and prove that he was the person
mentioned in the will. although misnamed.
4. An affidavit for a continuance IL a paper
relating to a collateral matter, and it
cannot be made n part of the record OK
Cept by bill OF exceptiOneS, or the order OF
the court. And if it has been improvidently
copied in the record among the other pro
ceedings OF the court, it cannot be re-
ferred to and made a part of q bill of eX-
c%eptlons by reference TO the page and line
CT the transcript, but it should be set ont
at length ir the bill of eXcepuors. .. The
fact of the former settlement Of an estate,
where the decedent wac supposed 20 nave
died intestate cannot affect the validity
IF 4 will of the decedent afterwards dis
covered. 6. The admission Of testimony in
its regular order is very mnot %stnin the
\ discretion OF the trial judge and unless il
appears that there was an abuse of the
discretion this court will not interfere ON
appeal.
Minutes
1886. Edna BrackEey ct al ". Nena
FOgle ct al. Noble c. G. Showing and petit
ton 10 set aside order for oral argument.
1852. Melon w. Demarest. treasurer, etc.
VS.. William II. Holdeman ct al. Elkhart
G. c. Appellee points for oral argument (.)
1853. John T. Litteil vs.. William n. Burns
ct al. Clark c. c. Petition for leave TO
amend assignment OF errors.
APPELLATE COURT.
1897. White River, etc, Township VS.. OAR
nell. Johnson c. c. Affirmed, on condition
hat appellee RENTS S75.25 within thirty
days. Robinson, il. The right of subro-
CATION is not founded upon contract, ex-
press or implied. 1t is based upon the prin-
ciples of equity and justice and includes
every instance where one party, not a mere
volunteer. pays for another a debt for
which the latter was primarily liable and
which in good conscience and equity he
should have paid. 2. Where a school town
ship has received and retained the benefit
OF money advanced by an individual for the
payment of a schOolhouSe, equity requires
that the amount advanced be repaid. and
where the findings are silent as to when the
money was paid for the benefit of the town
ship. interest thereon should only be al
lowed from the date OF the hling of suit on
the claim.
3l42. Warner VS.. Mier. etc, Company.
Noble c.. c. Mandate modified. per curiam.
Judgment reversed and the cause remand
ed, with instructions 10 overrule the motion
of appellee for Judgment in it's favor upon
the answers 10 heterogeneous.
340l. Supreme Lodge X. OF Y. VS.. Foster.
| Floyd c. G. Affirmed. Comstock. il. In
an action upon a certificate of membership
I'm a lodge an express allegation In the com
plant that the defendant did execute the
contract sued on must be deemed as con-
trolling in the absence OF "a plea OF non cSt
factum IL Is equivalent 10 an avermcnt
that the defendant executed the certifca-e
in the name and style in which IL was
signed. : The fact OF the good standing
Of a member OF a society is a matter Pc
culiariy within the knowledge OF the So
clety, and IN an action on a certificate of
membership in such society IL Is not neces-
sary for the plaintiff TO aver such fact. al
! though the certificate provides that the