The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-06-06
HIGHER COURTS RECORD.
SUPREME COURT.


aOll6 McCreery VS.. Falls, Delaware c. Q.
Reversed. Gillett. 1.-THE act OF 1897. Sec
6I62, Burns, 1901 (Acts 1897, p 1922 denning
highways established by uses, applies only
thirty feet or more.
1888. Wabash Railroad Company VS..
Fort WAYNE. etc, Company; Wabash s.aanna =;
street railroad companies are expressly au-
thorized by statute to construct their ROADS
across any railroad in this State upon the
proper condemnation procedure, and IL the
two corporations cannot agree upon the
amount of compensation to be made there
for. or the manner of such crossing. II must
be ascertained and determined by commls-
sioners to be appointed as required In the
taking of lands. 2. When the compensation
or damages are assessed by such commits
sioners the corporation seeking the crossing
must then pay to the clerk the amount or
the damages so assessed or tender the same
to the opposite party. And on making such
payment or tender it is lawful for such cor
poration to hold the interests in the proper
ty so appropriated. 3. While the defend
ant in such proceeding may appeal from
the award of the commissioners. the plain
tiff may take possession of the property
described i'm the instrument OF appropria-
ton, and the subsequent proceedings on
appeal affect only the amount OF compensa-
ton to be allowed. 4. The issue or the SUI
ficiency of an instrument of appropriation
may be. and mustbe raised. II at all, in the
condemnation proceedings 5. In collat-
eral proceeding it will be presumed that
the pleading sufficient to authorize its judy
ment of order, and such pleading cannot
be called in question.
20l2l. Tevis vs. Hammersmith. Park c. c
Affirmed. Monks, jim an appeal TO this
court from division of the Appellate
Court under the third clause of Section 10
of Acts 1901 (acts 1901, P. SGD the ony proper
assignment of error is that the Appellate
Court, stating the division IL the judgment
is by division Of that court erred in af-
n may be- the judgment ers" Of the as court beow
stating what court. And care should be
taken in each case where there Is more
jointly or severally, as may be necessary
to entitle each appellant to decision on
the rulings against him.
1879; Consumers, etc: Company vs. vs.
Oral argument June 10. 1903.
2OO23. Republic, ETC., Company VS., Ohler.
Madison S. C. Oral argument June II, 1903.
APPELLATE COURT.
4426. Harold VS.. Fuenfstueck. Laporte
s. G.. Affirmed Black, J.-Counsel must
indicate in their brief the page and line Of
the transcript it is desired that this court
examine upon the alleged error.
1919. Robards VS.. indianapolis Street-rail-
way Company. Marion c. c. Petition for
rehearing overrued. Comstock. jim an
action to recover damages for personal in
juries occasioned by the negligence of the
defendant plaintiff cannot recover If Ii af-
firmatively appears that he was guilty or
negligence contributing to the injury.
46ls; Bateman VS.. Bennett Warriek c;
real estate executed his will in 1874 and
died in 1875, and left surviving him son
and daughter, and widow who was a
childess second wife An item of the will
provided that "It is my will and desire, and
/ hereby bequeath to my beloved wife such
parts, portion and interest, both In my real
and personal property, as she would take
under the statutes of Indiana now In force
If / had made no will" And by another
item provided that 1T Is my will and desire
that the whole Of my real and personal
property, including that which may be left
at the death Of my said wife. be divided
into equal parts, and one-half of which l
hereby bequeath to my son - OBJ, and
the other half I will and bequeath TO =
Co, trustee, in trust, to manage in his dis
erection for the use of my daughter - (DO
After the death the land involved was am
icably partitioned between the three heirs.
and deeds executed to the said heirs con-
veying them their respective shares. but no
deed to the widow. Afterward, in 1871, the
son died, leaving widow as his only
conveyed the share of the real estate set
off to her in the partition between the said
heirs, and in 1898 said widow died. Held
that the widow of B had no interest in the
land conveyed by the said widow Of the
testator as the heir of B.
Ass. Dill VS.. Marmon. Marion S. G. APP
pellant granted until Aug. i, 1903. to file
brief.
4755 John Dill vs. Daniel w. Marmon.
Marion s. c. Appellants application for
extension Of time Petition granted until
TSa. The Pittsburg. Cincinnati, Chicago
& ST. Louis Railway Company We. Vincent
F. Browning. Bartholomew G. c. Appel
lant's brief (S.)
1854. Emanuel Rothschild VS.. William z.
Leonhart. Randolph c. G. Record As
signment of errors. Notice. Jay county.