The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-11-27
pellee's petition for additional time.
Granted thirty days.
APPELLATE COITRT

Granted thirty days.
APPELLATE COURT.
1854. Rariden VS.. Mason. White C. c.
Affirmed. Black, p. J.-Where by the con-
duct of a husband the wife is excluded
from the home of her husband. il is in
enect an abandonment by him, and he con-
tlnues in law bound 10 provide her with
suitable maintenance and is responsible TO
one furnishing her on his credit with the
necessaries proper in view OF the conditlon
of the parties, though without his personal
request and though the person furnishing
the necessaries knows at the time that
the husband and wife are living separate
and apart from each other.
561S. Midland Railway Company VS..
Trissal. Madison c. c.. Affirmed. Robin
son, il. The words here insert In a
bill Of exceptions do not make a motion TO
strike out a pleading or parts Thereon, a
part of the bill, although the motion is SET
out in another place in the transcript =
Where a cause is referred TO a master
commissioner his fiLding and report Is not
binding upon the court. but Is only ad-
visory, and the court has the right to ex-
anime the facts and look into the EVIL
dence in order to make a correct nnolng
before rendering judgment thereon.
1910. Central TT. Company VS.. johnson.
Johnson c. c. Reversed. Roby, =. j.
Where a person agrees TO serve as receiver.
II appointed, without compensation, ne
cannot after serving under such appoint
ment deman1 compensation.
1891. c.. H. & /. r. r. Company VS.
Worthington. Rush c.. C. Affirmed: Whey.
il. a carrier of passengers is held TO
the exercise Of a very high degree or care,
and for failure to use this care is respon-
sible to a pa ssenger who suffers an injury
in a case where no fault of his contributes.
z. Stopping a train at an unusual place
places the company p~resumptively In the
wrong, and the onus of explaining IL Is
thrown upon the company. 3. Where the
evidence is conflicting this court will not
weigh 1t to establish the preponderance.
1895. Oil Company VS.. Griest. Adams c.
G. Affirmed. Henley, IA plea in aoate-
ment must be certain in intent In every
particular and requires the utmost full-
ness. certainty and particularly of state
ment, leaving nothing to be supplied by IN
tendment or construction. The pieaoer
must not only answer fully what is neces-
sary to be answered. but must anticipate
and exclude all such matters as would, II
alleged upon the opposite side, defeat his
plea.
1865. International B.. and L.. Association
VS.. Board of Commissioners. Marion c. c.
Affirmed. Wiley, J.-Affirmed upon au-
thority of appellant VS.. appellee, decided
4O12. Logansport. etc. Co. VS.: OFT. How
ard c. C. Reversed. Henley. III. Where
the evidence wholly fails to sustain the ma
terial allegations of PLAINTIFFS complaint ne
is not entitled to recover. z. Where an orui-
nance authorizes a gas company 10 1urnlsn
gas TO GensuTner unaer a sp sSreement With.
in the bounds and restrictions OF the oroi-
nance.
c.. Affirmed. Henley. il. The primary
right to levy a tax upon a citizen is not
duty of such board goes to the extent ana
valuation of the property for taxation when
the right to levy the tax has been deter
mined or where 1t is unquestioned. z. An
assessment of personal property In a town
ship of which the owner is not a resident is
illegal and void.
1896. C. /. & E. Ry. Co. VS.. Linn. Miami
c. c. Affirmed. Henley, il A genera
verdict for plaintiff necessarily fnds tnat
all the material allegations of the complaint
are true. and unless it is irreconcilable with
the answers to heterogeneous 1t VIII stano.
.. While it may be error to refuse a correct
instruction Ii will be harmless IL the jury
find the facts inapplicable to the instruction.
8. In order to save an exception to the rul-
ing of the court excluding an answer TO a
question propounded to a witness, a state
ment must be made to the court of the tes-
timony the witness will give If permitted to
answer the question before a ruling is mace
thereon, and an exception reserved to the
ruling at the time it is made.
4Os1. City of Greenfield VS.. Johnson. Han
cock c. c. Affirmed. Wiley, il. In an
action against a municipal corporation upon
an account for services 1t is not necessary
to allege by what authority plaintiff was
employed to render the services. 2. Failure
to discuss an alleged error is a waiver OF 1t.
3. Although the bill of exceptions states that
il contains all the evidence. If it shows upon
it's face that it does not the court will not
consider any question which depends for Its
proper decision upon the evidence. 4..By
introducing evidence after the court mas
overruled a motion. at the conclusion of
plaintiffs evidence, to instruct the jury to
and for defendant, the latter valves the
right to have the ruling on such motion
considered.
4O75. Kibbey VS.. Richards. Grant c. c.
Affirmed. Robinson, IA person may &C
quire a private right of way over the lands
of another by prescription. The use, how
ever, must have been continuous. uninter-
rupted and adverse, with a claim of right
and with the knowledge and acquiescence
of the owner of the land. Such use must
not, at any time, have been interrupted by
the act of the owner of the land nor aban-
doned by the party claiming the right;
All. Miller VS.. Bowers. Adams c. c.
Affirmed. Robinson, IA resident tax
payer that has been assessed for the pur-
pose of raising funds for the construction
of a macadam road, out of certain ma
terial. may enjoin the contractor from con-
structing such road out of other and in
ferior materials than what Is called for in
the contract, when IL rs SHOWN mat piain.i1
ton is issued.
4lOs. Middaugh VS.. Wilson: Wells G.
c. Affirmed. Black, p. il. When it
appears on the face of the complaint that
the action is prematurely brought, the OBJ
lection for this cause may be taken by de-
murrer. 2. If such objection does not ap-
be taken by answer in abatement.
4106. Black VS.. City of Misha waka. st.
Joseph c. c. Affirmed. Black, il. The
duty of a citv to keep its streets in a con-
dition safe for travel is not that of an in
surer of their safety. but the city is bound
to exercise reasonable diligence and care
III Nv piCiiisSo' - D hNSP LIZ
streets reasonably safe, and the question
whether 1t has done so in a particular in
stance is ordinarily one of fact. 2. Where
a municipal corporation is not itself a
~wrong-doer, but the plaintiffs injury CON-
planned of has been caused by an obstruc-
ton in a street made by a third person,
and the liability of the city is dependent
upon the existence of the obstruction SO
created. and sufficient notice thereof, &C.
tual or constructive TO the city, before the
injury, the city and such third person are
not joint tort feasors, nor are they in pari
delicto.
446S. Herbert VS.. Rupertus.. Vanderburg
c. c.. Motion to reinstate sustained.
44SO. Trent VS.. Edmonds. Owen C.. c.
Appellants time extended till Jan. l, 1903.
New Suit
1857. Lewis K. Smith vs. Ruth w. SUIT
ton. Randolph C. c. Record. Assignment
of errors. Joinder. Notices served below.
Minutes
1910. Theophilus Stembel VS.. James II.
Bill. Tippecanoe c. c. Appellants reply
brief a.
4529. The indianapolis Street-railway
Company VS.. George j. Dawson. Marion
s. c.. Appellee's brief 49,
4577. CYRUS Nesbitt VS.. Harvey r. Stew
ems. Grant C. c. Appellee's brief 49,