The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-03-12
HIGHER COURTS RECORD.
Minutes

1886 Vincent CHM VS.. State of Indiana.
Henry c. C. Appellee granted leave to
file briefs. Appellees brief 49,
2o056. August Cordes ct al VS. Miles u;
Botterf. Jackson c. c. Appellants brief
() on motion to dismiss.
1885. Lands VS.. Walls. Putnam e. Z:
Reversed Gillett courts of equity Will
not interfere to determine questions con-
corning the appointment or election of pub
lie officers or their title to office.
2O0o9. Frankel VS.. Garrard. Delaware {.
G.. Affirmed. Bowling, il. An amend
ment making an additional party plaintiff
may be made to the complaint without
leave before defendant answers the COM
plant. 2 In an action upon promissory
note where the officer serving the summons
makes false return thereon showing serv-
ice upon the defendant. when in fact the
and not served with process, such false
return is a fraud upon the defendant and
the court in which the suit is pending, and
is sufficient cause for setting aside Judg-
ment rendered thereon and enjoining its
collection 3. An action to set aside and
enjoin the collection of a judgment for
fraud in its procurement is a direct and
not a collateral attack; 4. The assignee OF
judgment takes il subject to all defenses
which could be made against II In the
hands of the original Judgment plaintiff.
10000. Peterson Union Tr. Co. Adams
c. c. Motion to reinstate appeal overruled
1876. CHM VS.. State of Indiana. Henry
c. c. Appellee granted leave to file briefs.
APPELLATE COURT.
Minutes
4o6s. Alfred Guthrie VS.. AIDA T. How
land ct. al. Martin c. G. Appellants pc
tition and brief go for rehearing.
1865. August Bcldt VS.. Hilary Early. st.
Joseph e. c. Appellants demurrer to an
brief Q) on motion to dismiss.
4710. The Penn Mutual Life Insurance
Company of Philadelphia. Vanderburg >.
4674. Moses j. Stewart VS. knight & Jill
son Company. Marion S. e. Appellee
brief go
1858. Dickson Coal Company VS.. Unver-
ferth. Greene c. c. Reversed. Comstock.
il. Where a coal miner is familiar with
the conditions OF his mine and his helper
in his presence examines ledge or slate
in the mine and by the most practicable
means and as result of such examina-
ton 1t is deemed safe such miner assumes
the risk when he continues TO work therein,
and on account of his mistaken Judgment
an accident happens and he is killed by
reason of such ledge of slate falling upon
him. 2 Where the widow of such miner
brings an action for his death under Section
1473, Burns, 1896. the complaint should al
lege that there were ten or more men used
in and about such mine.
42S1. Thomas VS.. Mccoy. Jay e. e. Az
firmed. Henley, jim an action to estab-
lish way of necessity the complaint
should show that the owner of the servient
estate had been requested by plaintin TO
select the location of the way, and that he
had failed to select the way when requested
or that when requested to do so he had
Il
ner, and in case the owner of the servient
estate had failed to select the way that
plaintiff had selected the route for the
same, and a correct description of the route
selected should be averred.
4045. Gas and Oil Company vs. Hawkins.
Delaware c. c. Affirmed. Robinson. j.
Under Sections SOB. 5104, 5105, Burns. 1901,
| a corporation organized for gas and oil
| purposes can only condemn land for use OF
| a pipe line for purposes authorized by such
statute, and the instrument OF appropria-
! ton should show that Ii is for the purpose
| of furnishing gas to the public. and such
| instrument can only ask for an easement
| and not fee. 3 Where an instrument OF
| appropriation is filed seeking TO appropriate
| certain land for a pipe line the trial court
| has the right to inquire into the sufficiency
of the instrument of appropriation when IL
| is properly and seasonably questioned. and
! ii is the duty of such court TO refuse TO
appoint appraisers unless ii appears upon
| the face of the proceedings that the par
| ticular petitioner has brought itself sub
stantially within the terms Of the statute
| comforting the power which Ii is asked 70
| exercise. 3. In Indiana the Constitution
! limits the right of eminent domain. 4. In
determining whether a proposed use is pub
! lie the court must look to the proposed
manner of doing il as well as TO the charac-
| ter of the business done.
$500. Jarvis VS. Hitch. Gibson G. G. Pc
| tition for rehearing overruled.
423l Kirkham VS.. Moore. Hancock c. c.
Petition for rehearing overruled.
1854. Dixon VS.. Eikenberry. Howard G.
c. Petition for rehearing overruled.