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cinnati & H. Spring Co. v. Brown (Ind. App.) | Openiug or vacating judgment, see "Judgment,” 197.
8 4. In a personal injury case, the averment that Remand by appellate court for new trial, see defendant's negligence caused decedent's death
“Appeal and Error," $ 25. is a sufficient allegation of proximate cause. -8 1. Nature and scope of remedy. Chicago & E. I. R. Co. v. Stephenson (Ind. Under Prac. Act, $ 56 (3 Starr & C. Ann. App.) 270.
St. 1896, c. 110, par. 57), a party held not to Under the express provisions of Burns' Rev. have waived his right to insist on a motion for St. 1901, $ 339a, it is not necessary, in a com
a new trial and on the reasous therefor.-Landt plaint for negligently occasioning the death of v. McCullough (Ill.) 107. plaintiff's intestate, to negative his_contribu Where defendants' excluded testimony bore tory negligence.-Chicago & E. I. R. Co. v. upon their liability to only two of several plaisStephenson (Ind. App.) 270.
tiffs, defendants' motiou that an adverse verIn determining the issue of contributory neg. diet be set aside as to all the plaintiffs on that ligence, the jury are not limited to the con- account is properly overruled.-Board of Com'rs sideration of defendant's evidence alone.-Chi- of Clay County v. Redifer (Ind. App.) 305. cago & E. I. R. Co. v. Stephenson (Ind. App.) 8 2. Grounds. 270.
Newly discovered evidence held not cumula. Instruction, in action for death of railroad tive, within the rule as to new trials.-Union fireman, as to evidence to be considered on is- Cent. Life Ins. Co. v. Loughmiller (Ind. App.) sue of contributory negligence, held not er- 264. roneous.-Chicago & E. I. R. Co. v. Stephen Diligence, authorizing a new trial for newly son (Ind. App.) 270.
discovered evidence, held not shown.-Union The presumption that one suing for injuries Cent. Life Ins. Co. v. Loughmiller (Ind. App.) alleged to be due to defendant's negligence is 264. overcome by specific averments of facts showing Under Burns' Rev. St. 1901, $ 568, providing that plaintiff knew or might have known of the that a new trial may be granted for newly disdanger, and, knowing, did not use commensu. covered evidence, an affidavit held sufficient.-rate care.-City of Lafayette v. Fitch (Ind. Chicago & E. I. R. Co. v. Syster (Ind. App.) App.) 414.
476. Where a complaint shows that plaintiff was Facts held not to show sufficient diligence to guilty of contributory negligence, notwithstand entitle a party to a new trial for newly discoring that defendant was guilty of negligence, it ered evidence.-Bertram v. State (Ind. App.) is insufficient as against a demurrer.-City of 479. Lafayette v. Fitch (Ind. App.) 414.
An applicatiou for a new trial for newly disThe adoption of additional precautions for covered_evidence is to be regarded with dissafety by å defendant after an accident cannot trust.-Bertram v. State (Ind. App.) 479. be proved as tending to show negligence in the method used at the time of the accident.
Fact that plaintiff's counsel did not know of a Stevens v. Boston Elevated Ry. Co. (Mass.) certain action of trial judge till after expira338.
tion of time limited for exception held no ground
for exception to court's action in denying Dew In an action for injuries against an elevated trial.-Goodrum v. Grimes (Mass.) 1053. railroad, evidence that defendant had adopted a rule relating to the sounding of a gong,
3. Proceedings to procure new trial. which its servants violated, and which was one Motion for new trial held not defective, heof the causes of the accident, held admissible. cause regular judge resumed jurisdiction for the - Stevens v. Boston Elevated Ry. Co. (Mass.) purpose of making the record show the filing 338.
of the motion on the last day of the term, in Where the controlling facts as to the proxi. cause.-Chicago, I. & L. Ry. Co. v. Cunning
the absence of the special judge who tried the mate cause of an injury are conceded or found, ham (Ind. App.) 304. it is a question of law for the court.-Lake Shore & M. S. Ry. Co. v. Liidtke (Ohio) 653.
To entitle a party to a new trial for newly discovered evidence, it is insufficient to aver or
seek to show diligence by general allegations; NEGOTIABLE INSTRUMENTS. but the facts constituting the diligence must be
set forth particularly.-Bertram v. State (Ind. See "Bills and Notes."
Complaint for newly discovered evidence,
averring that the evidence was not known to NEWLY-DISCOVERED EVIDENCE. one applicant, but failing to show that it was
not known to the others, joiut parties with Ground for new trial in civil actious, see "New him, held insufficient.-Bertram v. State (Ind. Trial," 8 2.
Action of trial judge in charging jury after NEW PROMISE.
retirement held a ruling made during trial,
within rule 44, and new trial should have been Within statute of limitations, see "Limitation moved for within 30 days.-Goodrum v. Grimes of Actious," $ 2.
NEXT OF KIN.
See "Descevt and Distribution."
Affecting jurisdiction of courts in general, see
"Courts," $ 1. Necessity of exception to decision on motion for new trial for purpose of review in crim
NONSUIT. inal prosecution, see "Criminal Law," $ 6. Necessity of motion for purpose of review, see Waiver of exception to denial of motion for, "Appeal and Error," 7.
see “Trial,” $ 12
A license, obtained during the period defend-
ant was charged with maintaining a nuisance
by storing naphtha on premises, held, under St.
Commonwealth v. Packard (Mass.) 1067.
"Pleading," $ 4.
To evidence, see "Trial,” $ 2.
tions," $ 12.
OBLIGATION OF CONTRACT.
rations," $ 9.
Or highways, see “Highways," $ 4.
Of water course, see "Waters and Water
Courses," § 1.
Quo warranto, see "Quo Warranto.”
Particular classes of officers.
See "Clerks of Courts"; "Judges"; "Justices
Bank officers, see “Banks and Banking," § 1.
Corporate officers, see "Corporations," $ 2.
tions," $ 4.
Town officers, see "Towns," 1.
Disqualification to hold office, imposed by
Burns Rev. St. 1901, § 2327, as a penalty for
bribery at primary elections, held not available
to opposing candidate until after conviction
thereof.-Gray v. Seitz (Ind. Sup.) 456.
eration of withdrawal of opposing candidate,
etc., held to fall within Burns' Rev. St. 1901,
§ 2327, punishing bribery at primary elections
Const. art. 2, § 6, relative to disqualification
Where the appointment of an officer is a nul-
A board of health, having appointed a new
serve, within Rev. St. 1890, $ 2115.-State v.
Craig (Ohio) 228.
See "Mines and Minerals," 8 1.
Judgment, see "Judgment," $ 4.
ing from a final decree made on issues sutse-
quently joined between the parties, defendant
waived_its right to complain of such amead-
Elyria (Ohio) 738.
Parol or extrinsic evidence to explain descrip-
tion in indeuture of partition, see "Evidence, **
§ 1. Actions for partition.
In action by two remaindermen for partition
of land, a portion of which was occupiel by
load to surrender possession to the remainder
men held erroneous.-Chicago, P. & St. L. Ry.
Co. v. Vaughn (III.) 113.
In action by remainderman for partition of
land occupied in part by railroad track, the rail-
road claiming under a deceased life tenant,
able time to effectuate condemnation.-Chicago,
P. & St. L. Ry. Co. v. Vaughn (111.) 113.
of property subject to homestead held prejudi.
It is only when land held in common cannot
be partitioned that a sale may be ordered.-
Kloss v. Wylezalek (III.) 863.
Where plaintiff in a suit for partition sougbt
burden of proof was on her to establish the
invalidity of the deed.—Glos v. Carlin (III.)
In a suit for partition and to remove a tas
deed as a cloud on title, a finding held to amount
ou title.-Glos v. Carlin (III.) 928.
Under Partition Act, § 39 (3 Starr & C. An.
St. 1896 (2d Ed.] p. 2925), the court in a bili
for partition heid entitled to examine separate
under which the tenants in common claimed.
for the purpose of removing such claims as
clouds on the title sought to be partitioned.-
Glos v. Carlin (III.) 928.
ership of an undivided interest in the property
sought to be partitioned.--Owen v. Village of
Under Rev. Laws, c. 184, 88 8, 9, 19, held
for a ruling that respondents had no interest
in the premises, within section 19.-In re Butt-
rick (Mass.) 1044.
Recital in auditor's report held not to raise
presumption that he made all the evidence a
In proceedings in partition, under Rev. Laws.
tor to make all the evidence a part of his re
port.-In re Buttrick (Mass.) 1014.
Title held not unmarketable for failure to
was not a necessary party in partition thereof.
such a cloud on the title as to render it unmar-
By garnishee, see "Garnishment," $ 2.
Of consideration for conveyance to another as
creating trust, see “Trusts," $ 2.
Claims against estate of decedent, see "Execu-
party's replacing the original wall by one $ 2.
$ 1. Actions and other proceedings.
In action for penalty for violating Laws 1899,
“Statutes," $ 3.
A direction to hold certain property in trust
Will construed, and codicil decreeing legacy
to one of testator's daughters in the event of
Where it is apparent from a will and a codicil
that testator intended that the provision for
his daughter under the codicil should be in-
alienable during her life, the rule that annui-
inapplicable. Herzog v. Title Guarantee &
Trust Co. (N. Y.) 283.
tion to recover balance due on sale of patent- See “Negligence."
and use of patented articles, see “Injunc- Caused by defective construction of railroad,
see "Railroads," $ 1.
"Street Railroads," $ 2.
Conclusion in pleading in action for, see "Plead-
ing," $ 1.
Damages resulting from proximate or remote
cause, see "Damages," $ 1.
assessment of damages, see
"Damages," $ 2.
"Witnesses," $ 2.
for, see "Witnesses," $ 3.
Intructions in actions for, see "Trial," $ 5.
In particular actions or proceedings.
and Slander,” 3; "Mandamus," i 3; “Xes
ligence," $ 2; "Quo Warranto," '\ 1; "Torts";
""I'rover and Conversion,” g 1.
For breach of contract, see “Contracts," $ 4.
tions”; “Mortgages,” s 5.
For injuries from gas, see "Gas."
For personal injuries, see "Master and Sers-
ant," 8 9; “Street Railroads," $ 2.
For reward, see "Rewards."
For wrongful death of employé, see "Master
and Servant," $ 9.
Indictment or criminal information or com-
plaint, see "Indictment and Information."
On insurance policy, see "Insurance," $ 9.
On note, see "Bills and Notes," $ 4.
Pleas in criminal prosecutions, see "Criminal
Law," g 3.
Probate proceedings, see "Wills," $ 4.
To establish mechanic's lien, see "Mechanics'
Liens,” g 2.
To restrain cutting of timber, see “Injunction,"
To review judgment, see "Judgment,” $ 3.
To vacate judgment, see "Judgment," $ 5.
1. Form and allegations in general.
ment on a contract on the ground of frund, it
will be inferred against the pleader that he
(Ind. Sup.) 455.
Allegations in complaint by servant against
his master for damages for personal injuries
held to be mere conclusion of the pleader.-
man (Ind. Sup.) 669.
In action by employé for personal injuries,
under Acts 1899, p. 234, c. 112, $ 9 (Burns'
Rev. St. 1901, 8 1087i; Horner's Rev. St. 191.
establishments to properly guard machines, com-
plaint held not to plead a conclusion.-Blanch-
§ 2. Declaration, complaint, petition, or
A complaint must contain a statement of all
the facts necessary for the plaintiff to prove in
nial.-Lake Erie & W. R. Co. v. Holland (Ind.
That a complaint, otherwise good, sets out
and Error," $ 5.
if it exhibits sufficient matter in avoidance.-
$ 3. Ples or answer, cross complaint.
and affidavit of defense.
ports to be only a partial answer does not ren-
of Com’rs of Clinton County 1. Davis (Ind.
§ 4. Demurrer or exception.
In proceedings to compel the insurance super-
company, the question whether the state has
company held not to arise in view of the answer
trators," $ 6; "Master and Servant," § 9; (Ill.) 775.
It is sufficient to decide a case on the plead-
Ito the answer, and it is not necessary to allow