The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-05-28


Board of Commissioners. etc. De Kalb
| county. De Kalb c. c. Transferred from
| Appellate Court No. 1885.
APPELLATE COURT.
1923. Griffin VS.. Durpee De Kalb c. c. At
| firmed Henley, p. il Where a mortgage
| purchases the mortgaged premises at his
i own sale on foreclosure he takes the prem
/ Uses with full notice OF any and all irregu-
/ larities in the proceedings. .. A description
! OF real estate In a sherifs certificate or
1 sale is sufficient if il will enable person
/ OF competent skill and information 10 locate
| the land and mark il out from such de-
/ scription.
1852 Booker VS.. KiIlion. Daviess c. c.
Affirmed. COmstock, il. In ordinary ad-
| versary proceedings, in order TO save any
| question for review in an Appellate Court
| exceptions must be taken at the time OF
the decision and they cannot be taken
must be good as TO all OF the appellants who
! join in it or IL will be good as TO none.
| 4017. G.. G.. G. & St. l.. Ry Co. Coff-
/ man. Marion c. c. Reversed. Comstock, j.
| l. Although there may be no statute and
| ordinance requiring railroad company to
maintain an electric gong at a crossing,
yet if il maintains one at such place long
| enough for travellers TO become ac-
customed to 1t and know what it was in
/ tended for and such person becomes in
| iured at the crossing he may testify as to
| the gong having been placed at the cross
| ing by the company and its failure 10 work
| at the time of a collision with an approach
| ing train. 2. Where a person about 10 cross
| a railroad track listens and hears a train
| approaching he must heed the danger and
/ If he does not and he is injured he is
| guilty of contributory negligence.
1922 Burns VS.. Smith. Morgan c. c. At
] firmed. Wiley, c. il. The relation Of
| principal and agent implies a contract,
whereby the former delegates power TO the
latter 10 act for him within certain limits.
2 An infant cannot appoint an agent g. An
4 infant married woman cannot make her
husband her agent so as to bind herself
| for his torts committed while acting for
! her
1
Marshall c. c. Affirmed Henley, J.-Where
| a promissory note, not negotiable as in
| land bill of exchange, is Endorsed by the
| payee 10 a third party IL is the duty of the
| endorsee TO use due diligence TO collect the
| note when il is due in order 10 fix the liza
| bility OF the indorser; the note must be
/ reduced TO judgment TO the earliest possible
time, although it specifies that the drawers
| and indorsers waive all defences on the
ground of extension of time.
! 1919. Board of Commissioners VS. Hurson
| Morgan G. G. Affirmed. Wiley, c. J.-When
a township trustee performs the duty i'm
posed upon him by the statute with refer
| discharged soldier. and contracts with an
undertaken to furnish the necessary burial
outfit and conduct such funeral, such
| action is binding upon the county i'm the
absence of fraud and collision between
| the trustee and such undertaken and all
! expenses incurred in such burial must be
allowed and paid out of the county
S5oS Citizens street-railroad Company
VS.. Brown. Marion S. G. Reversed. Wiley
| c. il. When il is sought to charge a ner-
son with negligence in ordering an en-
| ploye to do more hazardous work than
what he is employed to do. the complaint
| must disclose facts showing such work TO
! be hazardous. ,. Where dangers in work
are open, obvious and apparent to the serv-
! ant as the master the former assumes the
| risk thereof. g. Where il is ATTEMPTED to
| hold an employer liable for an injury re-
ceived by employee at work, the com
plant must aver that the dangers to which
he was subjected were not apparently such
that they could have been avoided by the
| use of ordinary care
1902 Phoenix Accident Company VS. Hor-
! ten. Allen c. c. Affirmed Robinson il
| In an action upon an insurance policy the
application need not be made part of the
complaint. although by it's terms it is a
| evidence to sustain the verdict and judg
ment this court will not attempt to de-
! termine the preponderance.
1908 Churchman VS.. Insurance Company.
! Bartholomew c. c. Affirmed Comstock
| il. Exceptions to the ruling of the court
| upon answers in abatement taken by sew
eral defendants in gross reserves no ques-
| ton TO an assignment of error predicated
| thereon by one of the eXceptors. 2 After
| a plea to the jurisdiction of the court is
! overruled the defendant admits the juris-
| dictfOn by nHng an answer in bar.
| 1885, Nierling VS.. LEIGH Vanderburg s.
| c. Affirmed. Roby, jim determining the
rights of partners as to one of many bust
| ness transactions 1t Is necessary TO know
| their rights TO all, for the partnership
business is a continuous thing and not a
| disrupted connection of separate affairs.
| 354S Wilt VS.. Town of Redkey. Jay c.
| c. Affirmed. Robinson. 1.-THE employ
ment of an agent to perform services for
a municipality need not necessarily be by a
/ formal ordinance bylaw or resolution nor
| is il essential that such a contract be in
| writing. ?. The court cannot weigh the
evidence TO determine the preponderance,
| and where it is conflicting il will not re-
verse a judgment upon the evidence alone
1926 Knauss VS.. l.. +. & w. r. r. Co.
! Clinton c. c.. Affirmed. Henley, P. j.
| Where a complaint states facts constituting
! a cause of action and also states facts
which constitute defense. it is bad on de-
murrer. 2. Where passenger on a railway
| train prOtrudes his head through a car
! window and is killed he is guilty of negl-
! gence per Sc and the mere fact that the
person killed is only ten years old will
! not prevent the application of such rule.
| 4O43 Hufford VS.. Lewis. Clinton c. c.
| Affirmed Robinson, J.-While proceedings
are in fieri the court has full power over
| or set aside it's orders and Judgments. 2.
| AS the code permits motion for a new
| trial TO be filed after judgment the pro-
| ceedings are in fieri until the close of the
| term at which the motion for a new trial
is disposed of. 3. Where one of two inno-
| cent persons must suffer loss the person
who has been instrumental in causing the
! loss must bear il.
1887. Hart VS. Miller. Wayne c. c. At
! firmed Black, 1.-THE admissions of a
cestui que trust. the trust being estab-
| lished. are admissible to affect the trust
| estate and not the estate of the trustee ,.
| If an offered witness is insane his mental
! infrmity renders him incompetent TO tes-
| tify.
3532. Prussian Ins. Co. VS.. Peterson. Jay
! c. c. Reversed. Black. IA complaint OH
| fire insurance policy is insufficient if it
| fail to show that the insured was the
owner of the property. or had an insur-
able interest therein a the time of its
loss. 2. Where a fire occurred on Nov %
! 1899, and action was commenced upon an
| insurance policy in January, 1900. and it
| was alleged that on the 9TH day of June.
| 1899. he (plaintiff) and is now the owner
! of dwelling house. such averment did
| not show that plaintiff was the owner at
| the time of the fire g. Proof of loss by
| fire may be waived by the insurance COM
pany, and such waiver may be inferred
| from its acts and conduct T. A parol
submission TO arbitration is sufficient and
binding upon the parties 10 an insurance
contract unless revoked before making the
award.
SS45. Board of Commissioners VS.. Julian
Morgan G. G. Transferred S. c. per
curtain. Where one of the Judges was
counsel in another case involving the same
question presented by the record and for
that reason declines to participate in the
discussion and four of the remaining judges
! being unable to agree the cause will be
transferred to the Supreme Court.
1865. HOllingsworth VS.. c., I. & L. Ry.
Co. Clark c. G. Transferred to s. c. per
curiam. Under act of March Il. 1901 when
the court is equally divided and unable to
agree upon a decision the cause is trans
ferred TO Supreme Court.
1892. Silver vs. State rel. De Kalb
G. c. Transferred to S. c. per curiam.
Where one of the Judges had been counsel