The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-05-27

200S4. c. & s. Z. Railroad Company vs.
Witt. Upton c: c. Reversed. Gillett. J.
In an action founded upon Section S3ia,
Burns 1901, the statute does not contem-
plate that a judgment shall be taken
against the debtor beyond the enforcement
of the writ of execution.
20l2I. Dixon VS.. Eikenberry. Howard c.
c. Reversed. Bowling, il. 1t is the duty
of plaintiff in suit to foreclose a mortgage
against land TO disclose all liens against
the land held or claimed by him. 2. A
mortgage of land holding an invalid tax
certificate of purchase on account of an at
tempted sale for taxes duly assessed against
such land after the execution of his mort
gage cannot foreclose such mortgage with
out setting up his claim for taxes, and aft
erward enforce such claim for taxes in a
subsequent action against the mortgaged
premises, by himself or through an
signee. the premises then being held by or
through purchaser under the decree of
aOl2O. Ballard vs. Camplin. Henry c. c.
Reversed. Jordan. il. A legacy or devise
because of the legatee or devisee predeceas-
ing the testator. 2. A testator may by ex-
press provisions in his will prevent the lapse
legatee or devisee, and the lapse of the be-
quest will also be prevented or precluded
by clear Implication of the intent of the
testator to that effect.
1915 Crystal Ice Company VS.. Morris
Madison S. c. Reversed Monks. c. il.
Prior TO act of 1903 (Acts 1903. p. 1892 the
ruling of the trial court sustaining a mo-
ing. and the motion to strike out, are not
in the record unless brought by bill Of
exception. 2. Acts 1903, P. S39. Sections
does not show that any part OF complaint
was stricken out this court is required to
consider the same as copied into the tran
script.
20O30. Lenzelsen VS.. McGregor. Posey c.
c. Affirmed. Hadley, il. When a COM
plant is assailed for the first time upon
appeal it is incumbent upon the appellant
TO point out some infirmity in the complaint
that is incurable by the presumptions that
arise from the courts finding against him
in overruling a motion to modify the judg
ment and motion for a new trial. 2. I'm
certainty and inadeQuacy of averment in
the complaint that might have been
cured by motion will be deemed waived
after Judgment, and nothing short of a
showing that the complaint is fatally de-
fective from the total absence of averment
of some fact essential TO the existence OF
the cause of action will authorize the re-
versal of the judgment founded thereon. 3.
The absence of the trial judge from the
State during the time allowed for present.
ing and filing a bill of exceptions furnishes
no ground or authority for presenting, APP
proving and Incorporating exceptions in
the record at date subsequent to the time
nxed. 4. When a person purchases land and
puts 1t in the possession of his brother for
the erection of a business house thereon,
knowing. that his brother. for the compile
tlon or the structure, would require man.
clal assistance, the purchasers title In the
real estate is subject to mechanics lien
for placing the building thereon.
1851. State ex rel VS.. Bagby. Allen G. e.
Affirmed. Gillett, J.-Section $780, Burns.
1901. creates only a personal liability on the
part of an officer, and an action on his bond
Will not lie to recover a penalty for an al
20O36 B. & o. s. W. Railroad Company
VS.. Roberts. Daviess c. G. Affirmed. Jor-
dan. il. In a suit by an employee for an
injury sustained because of the negligence
of the master, the complaint in an ordinary
common law action must disclose an alb
the part of the employe of the defects or
danger to which the injury complained of
is attributed The pleading is not required
to go further and aver facts affirmatively
showing that the employee had no means or
opportunity of ascertaining or discovering
the defects or danger in controversy. An
averment that he did not know of such de-
fects or danger is sufficient a matter of
pleading to rebuff or repel not only actual
knowledge, but also implied or constructive
knowledge or notice. 2. The duty Of a
master to furnish and maintain a safe
place and safe machinery with which to
discharge his duties is continuing one
which he cannot delegate to another. 3. In
the absence of apparent or known defects.
danger or peril, an employee is not required
to search in order to ascertain whether the
place in which he works is safe or unsafe
or the machinery or appliances with which
he discharges the duties of his employ
ment are safe.
2Oo47 Shelton VS.. Sharp. Pulaski c. c.
Affirmed in part and reversed in part Gill
lett, il. A decree quieting title is con-
elusive adjudication of title against defend
ants and their remote grantees therein. 2.
An action to quiet title Is direct attack
upon tax deeds to the property in question.
and after the Introduction of such tax
deeds plaintiff may in rebuttal show facts
that render such deeds void. in so far as
claiming title under a tax deed in 1880.
when such deed was not prima facie evil
ings under such tax deed were regular to
be treated as conveyance. f. Under Sec
ton 5675. Burns. 1901, demands upon ditch
certificates are treated as ordinary tax
sales.
20o55. Boone State. Madison G. c..
Affirmed. Hadley. jim a state case the
mere fact that the jury, on finding the de-
PENDANT guilty, does not find his age, will
not vitiate a judgment upon the verdict.
2OlO6. State Bank VS.. Backus. Madison
s: c. Affirmed. Downing, il. The silence
press finding against plaintiff on all ma
terial facts he was bound 20 prove. 2. Gen.
cral creditors do not come within the pur-
view of Section $780, Burns, 1901, requiring
the registration of deeds and mortgages for
the protection of subsequent purchasers. 8.
The Withholding Of a mortgage from record
is fact which may be shown In connection
with other facts tending to establish fraud
in the execution Of the instrument; but
where the court finds either that all Of the
acts by the parties were done honestly and
in good faith, fails to find that they
were dishonest and fraudulent. the deed or
mortgage cannot be adjudged fraudulent
ana Vold solely on the ground That IL was
not recorded, and that, in ignorance of the
existence of the instrument, credit was
given to the mortgagor upon the faith of
his supposed ownership of the property. 4.
wife as a bona fide creditor may secure
her debt by mortgage upon her husbands
property.
2OOOS Wabash Railroad Company VS..
Keister. Warren c. c. Reversed. Monks,
c. il. Where the facts found in answer
TO interrogatories are irreconcilable with
the general verdict the special verdict pre-
walls over the latter. 2. Where the answer
to an interrogatory is a mere conclusion II
must be disregarded. g. A person with all
opportunity of seeing an approaching train
at a crossing, or on seeing 1t could remain
safe until Ii passed by, is guilty of con-
tributing to the injury which causes his
death when not observing the danger he
attempts to cross and is injured.
1887. Clifford VS.. Board of Commission
ers. Jasper c. G. Affirmed. Monks, c. j.
/. Only by appeal can a superior court Of
this State review the action of an inferior.
q writ of certiorari will not be granted
to review a proceeding where the right of
sentation of petition for a gravel road
has been given, as required by law. all par
ties interested must at their peril give at
tention TO the proceedings which ensue I'M
der the statute in such cause. and If any
party has not actual knowledge of such
proceeding from the legal notice given I'M
til after the viewers are appointed. 1t gives
no cause for allowing him to object to mat
tiers which were determined and adjudi-
Gated By the board before the viewers were
appointed.
2OO72 Board Of Commissioners VS. Ben
to substitute briefs
2OO9O. Kerr vs. Perry Township. Monroe
c. c. Appellant granted to June 4. 1903. to
file brief.