cinnati & H. Spring Co. v. Brown (Ind. App.) | Opening or vacating judgment, see "Judgment," 197.
In a personal injury case, the averment that defendant's negligence caused decedent's death is a sufficient allegation of proximate cause.- Chicago & E. I. R. Co. v. Stephenson (Ind. App.) 270.
Under the express provisions of Burns' Rev. St. 1901, § 359a, it is not necessary, in a com- plaint for negligently occasioning the death of plaintiff's intestate, to negative his_contribu- tory negligence.-Chicago & E. I. R. Co. v. Stephenson (Ind. App.) 270.
In determining the issue of contributory neg- ligence, the jury are not limited to the con- sideration of defendant's evidence alone.-Chi- cago & E. I. R. Co. v. Stephenson (Ind. App.)
Instruction, in action for death of railroad fireman, as to evidence to be considered on is- sue of contributory negligence, held not er- roneous. Chicago & E. I. R. Co. v. Stephen- son (Ind. App.) 270.
The presumption that one suing for injuries alleged to be due to defendant's negligence is overcome by specific averments of facts showing that plaintiff knew or might have known of the danger, and, knowing, did not use commensu- rate care.-City of Lafayette v. Fitch (Ind. App.) 414.
Where a complaint shows that plaintiff was guilty of contributory negligence, notwithstand- ing that defendant was guilty of negligence, it is insufficient as against a demurrer.-City of Lafayette v. Fitch (Ind. App.) 414.
The adoption of additional precautions for safety by a defendant after an accident cannot be proved as tending to show negligence in the method used at the time of the accident.- Stevens v. Boston Elevated Ry. Co. (Mass.) 338.
In an action for injuries against an elevated railroad, evidence that defendant had adopted a rule relating to the sounding of a gong, which its servants violated, and which was one of the causes of the accident, held admissible, -Stevens v. Boston Elevated Ry. Co. (Mass.) 338.
Where the controlling facts as to the proxi- mate cause of an injury are conceded or found, it is a question of law for the court.-Lake Shore & M. S. Ry. Co. v. Liidtke (Ohio) 653.
NEGOTIABLE INSTRUMENTS.
See "Bills and Notes."
NEWLY-DISCOVERED EVIDENCE. Ground for new trial in civil actions, see "New Trial," § 2.
Within statute of limitations, see "Limitation of Actions," § 2.
Liability for libel, see "Libel and Slander," § 3.
Necessity of exception to decision on motion for new trial for purpose of review in crim- inal prosecution, see "Criminal Law," § 6. Necessity of motion for purpose of review, see "Appeal and Error," § 7.
Remand by appellate court for new trial, see "Appeal and Error," § 25.
§ 1. Nature and scope of remedy.
Under Prac. Act, § 56 (3 Starr & C. Ann. St. 1896, c. 110, par. 57), a party held not to have waived his right to insist on a motion for a new trial and on the reasons therefor.-Landt V. McCullough (Ill.) 107.
Where defendants' excluded testimony bore upon their liability to only two of several plain- tiffs, defendants' motion that an adverse ver- dict be set aside as to all the plaintiffs on that account is properly overruled.-Board of Com'rs of Clay County v. Redifer (Ind. App.) 305. § 2. Grounds.
Newly discovered evidence held not cumula- tive, within the rule as to new trials.-Union Cent. Life Ins. Co. v. Loughmiller (Ind. App.) 264.
Diligence, authorizing a new trial for newly discovered evidence, held not shown.-Union Cent. Life Ins. Co. v. Loughmiller (Ind. App.) 264.
Under Burns' Rev. St. 1901, § 568, providing that a new trial may be granted for newly dis- covered evidence, an affidavit held sufficient.- Chicago & E. I. R. Co. v. Syster (Ind. App.)
Facts held not to show sufficient diligence to entitle a party to a new trial for newly discov ered evidence.-Bertram v. State (Ind. App.) 479.
An application for a new trial for newly dis- covered evidence is to be regarded with dis- trust.-Bertram v. State (Ind. App.) 479.
Fact that plaintiff's counsel did not know of a certain action of trial judge till after expira- tion of time limited for exception held no ground for exception to court's action in denying new trial.-Goodrum v. Grimes (Mass.) 1053.
3. Proceedings to procure new trial. Motion for new trial held not defective, be- cause regular judge resumed jurisdiction for the purpose of making the record show the filing of the motion on the last day of the term, in cause.-Chicago, I. & L. Ry. Co. v. Cunning- the absence of the special judge who tried the ham (Ind. App.) 304.
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; but the facts constituting the diligence must be set forth particularly.-Bertram v. State (Ind. App.) 479.
Complaint for newly discovered evidence, averring that the evidence was not known to one applicant, but failing to show that it was not known to the others, joint parties with him, held insufficient.-Bertram v. State (Ind. App.) 479.
Action of trial judge in charging jury after retirement held a ruling made during trial, within rule 44, and new trial should have been moved for within 30 days.-Goodrum v. Grimes (Mass.) 1053.
NEXT OF KIN.
See "Descent and Distribution."
NONRESIDENCE.
Affecting jurisdiction of courts in general, see "Courts," § 1.
Waiver of exception to denial of motion for, see "Trial," § 12.
Promissory notes, see "Bills and Notes."
Of particular faets, acts, or proceedings. See "Elections," § 1; "Mechanics' Liens," § 1. Acceptance of guaranty, see "Guaranty," § 1. Allotment of work in drainage proceedings, see "Drains," § 1.
Appeal, see "Appeal and Error," § 9.
Defects in sidewalks, see "Municipal Corpora- tions," § 12.
Increase of tax assessment, see "Taxation," § 3.
Meeting of city council, see "Municipal Corpo- rations," § 9.
Tax sale, see "Taxation," § 5.
To particular classes of parties. See "Principal and Agent," § 2. Bank officers, see "Banks and Banking," § 1. Guarantor, see "Guaranty," § 3.
Purchaser, see "Vendor and Purchaser," § 3.
One having knowledge of facts sufficient to put him on inquiry is chargeable with knowledge of the facts.-Webb v. John Hancock Mut. Life Ins. Co. (Ind. Sup.) 1006.
Whatever puts a party on inquiry amounts in law to notice.-Blair v. Whitaker (Ind. App.) 182.
Complainant held not discharged from liabil- ity for the payment of his debts by reason of contract of third person to pay them.-Ellis v. Conrad Seipp Brewing Co. (Ill.) 808.
To establish novation, discharge of original parties from liability to each other, and sub- stitution of reciprocal obligations between sub- stituted parties, must be shown.-Stowell v. Gram (Mass.) 342.
In an action by one of the parties to a con- tract against the assignee of the other, evidence examined, and held insufficient to show a nova- tion.-Stowell v. Gram (Mass.) 342.
Joinder of causes, see "Action," § 1. Liquor nuisance, see "Intoxicating Liquors," § 2.
1. Private nuisances.
Hospital conducted next door to plaintiff's house held a private nuisance.-Deaconess Home & Hospital v. Bontjes (Ill.) 748.
Equity will restrain a nuisance, disturbing the peace and injuriously affecting health, without waiting for determination of question of nui- sance in an action at law.-Deaconess Home & Hospital v. Bontjes (Ill.) 748.
That the trustees of a hospital did not know the offensive manner in which it was conducted was no answer to suit to enjoin its maintenance. -Deaconess Home & Hospital v. Bontjes (Ill.) 748.
Decree in injunction suit held not inconsistent with prayer.-Deaconess Home & Hospital v. Bontjes (11.) 748.
2. Public nuisances.
Erection of fence 10 or 12 feet high, shutting off the view of the public, and the view, light, and air of a neighbor, held not a public nui- sance, within the definition in Burns' Rev. St. 1901, § 290, nor an infraction of section 2153 (Horner's Rev. St. 1901, § 2065), imposing a penalty for maintaining a nuisance.-Russell v. State (Ind. App.) 482.
A license, obtained during the period defend- ant was charged with maintaining a nuisance by storing naphtha on premises, held, under St. 1894, p. 446, c. 399, admissible in evidence.- Commonwealth v. Packard (Mass.) 1067.
For purpose of review, see "Appeal and Er- ror," § 5.
Mode of making objection to pleading, see "Pleading," § 4.
To evidence, see "Trial," § 2. To jury, see "Jury," § 2.
OBLIGATION OF CONTRACT.
Laws impairing, see "Constitutional Law," § 4. OBSTRUCTIONS.
Of highways, see "Highways," § 4. Of water course, see "Waters and Water Courses," 1.
Of reward, see "Rewards."
Injunctions affecting, see "Injunction," § 1. Quo warranto, see "Quo Warranto."
Particular classes of officers.
See "Clerks of Courts"; "Judges"; "Justices of the Peace"; "Receivers"; "Sheriffs and Constables."
Bank officers, see "Banks and Banking," § 1. Corporate officers, see "Corporations," § 2. County officers, see "Counties," $1. Election officers, see "Elections," § 2. Health officers, see "Health," § 1. Municipal officers, see "Municipal Corpora- tions," § 4.
Town officers, see "Towns," § 1.
§ 1. Appointment, qualification,
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.
Agreement to give promissory note in consid- eration of withdrawal of opposing candidate, etc., held to fall within Burns' Rev. St. 1901, § 2327, punishing bribery at primary elections by disqualification to hold office.-Gray v. Seitz (Ind. Sup.) 456.
Const. art. 2, § 6, relative to disqualification to hold office, consequent upon bribery to se- cure election, held not to apply to bribery at primary elections.-Gray v. Seitz (Ind. Sup.) 456.
Where the appointment of an officer is a nul- lity, because he is by statute ineligible, a legal appointment may be made without first oust- ing such first appointee by quo warranto.- State v. Craig (Ohio) 228.
A board of health, having appointed a new health officer, thereby indicated its pleasure that the former health officer should no longer serve, within Rev. St. 1890, § 2115.-State v. Craig (Ohio) 228.
See "Mines and Minerals," § 1.
Judgment, see "Judgment," § 4.
OPINION EVIDENCE.
In civil actions, see "Evidence," § 9.
Of courts, see "Courts," § 2.
OPTICIANS.
See "Physicians and Surgeons."
To buy land, see "Vendor and Purchaser," § 1. To renew lease, see "Landlord and Tenant," § 3.
Review of appealable orders, see "Appeal and Error."
Documentary evidence, see "Evidence," § 7. Judicial notice of, see "Evidence," § 1. Municipal ordinances, see "Municipal Corpora- tions," §§ 1, 3, 6, 7, 13.
Regulation of railroads, see "Railroads." § 2. Regulation of water supply, see "Waters and Water Courses," § 3.
ORPHAN ASYLUM.
PARENT AND CHILD.
See "Bastards"; "Guardian and Ward"; "In- fants."
ing from a final decree made on issues subse- quently joined between the parties, defendant waived its right to complain of such amead- ment.-Lake Shore & M. S. Ry. Co. v. City of Elyria (Ohio) 738.
Parol or extrinsic evidence to explain descrip- tion in indenture of partition, see "Evidence," § 8.
§ 1. Actions for partition.
In action by two remaindermen for partition railroad right of way, the railroad claiming un- of land, a portion of which was occupied by der deceased life tenant, decree requiring raii- road to surrender possession to the remainder- men held erroneous. Chicago, P. & St. L. Ry. Co. v. Vaughn (Ill.) 113.
In action by remainderman for partition of land occupied in part by railroad track, the rail- road claiming under a deceased life tenant, held, that railroad should be entitled to reason- able time to effectuate condemnation.-Chicago, P. & St. L. Ry. Co. v. Vaughn (Ill.) 113.
Decree in partition suit holding eight-ninths of property subject to homestead held prejudi- cial to complainant holding title to remaining | ninth-Kloss v. Wylezalek (Ill.) 863.
It is only when land held in common cannot be partitioned that a sale may be ordered.- Kloss v. Wylezalek (Ill.) 863.
Where plaintiff in a suit for partition sought to set aside a tax deed as a cloud on title, the burden of proof was on her to establish the invalidity of the deed.-Glos v. Carlin (III) 928.
In a suit for partition and to remove a tax deed as a cloud on title, a finding held to amount Effect of naturalization of father, see "Aliens," to a finding that the deed constituted a cloud § 1.
In civil actions, see "Evidence," § 8.
on title.-Glos v. Carlin (Ill.) 928.
Under Partition Act, § 39 (3 Starr & C. Ann. St. 1896 [2d Ed.] p. 2925), the court in a bill for partition heid entitled to examine separate
To lay foundation for collateral attack on judg- titles arising from sources independent of those ment, see "Judgment," § 6.
Defects ground for abatement, see "Abatement and Revival," § 1.
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 (Ill.) 928.
Complainant in partition suit must show own- ership of an undivided interest in the property sought to be partitioned.-Owen v. Village of
Interpleading, see "Interpleader.” Persons concluded by judgment, see "Judg- Brookport (Ill.) 952. ment," § 7.
In particular actions or proceedings. See "Equity," § 2; "Partition," § 1. For causing death, see "Death," § 1. Foreclosure, see "Mortgages,' § 5.
On appeal or writ of error, see "Appeal and Error," §§ 3, 8, 17.
To recover money for taxes illegally diverted, see "Taxation," § 8.
To particular classes of conveyances, contracts, or transactions.
§ 1. New parties and change of parties. Where a solicitor of a city brought mandamus in his own name as such and as a taxpayer, but in behalf of the city, held, that the court, under Rev. St. § 5114, could allow an amend- ment by striking the name of the solicitor and taxpayer, and adding in lieu thereof the name of the city as plaintiff.-Lake Shore & M. S. Ry. Co. v. City of Elyria (Ohio) 738.
§ 2. Defects, objections, and amend- ment.
Where the court allowed an amendment chan- ging the name of the party plaintiff, by appeal-
Under Rev. Laws, c. 184, §§ 8, 9, 19, held that, in partition, it was proper to deny motion 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 part of his report.-In re Buttrick (Mass.) 1044.
In proceedings in partition, under Rev. Laws, c. 181, §§ 8, 9, held an impropriety for the audi- tor to make all the evidence a part of his re- port. In re Buttrick (Mass.) 1044.
Title held not unmarketable for failure to make person having no interest therein defend- ant.-Dresser v. Travis (N. Y.) 734; In re Koss, Id.
Will construed, and held, that granddaughter of testatrix had no interest in the estate, and was not a necessary party in partition thereof. -Dresser v. Travis (N. Y.) 734; In re Koss,
Lease of land sold under partition held not such a cloud on the title as to render it unmar ketable.-Dresser v. Travis (N. Y.) 736; In re Coogan, Id.
1. Dissolution, settlement, and ac- In cities, see "Municipal Corporations," §§ 6, 7. counting.
In a suit for dissolution of a partnership, the master to whom the case was referred held to
have properly stated the account between the parties.-Ernst v. Schmitz (Ill.) 923.
Suit to restrain violation of party wall agree ment held not barred by laches.-Springer v. Darlington (Ill.) 946.
A party to a party wall agreement is entitled to injunction to restrain its violation by the oth- er party's replacing the original wall by one in which numerous openings occur.-Springer v. Darlington (Ill.) 946.
An injunction restraining a party to a party wall agreement from maintaining openings in the wall as reconstructed by him, and from in- terfering with complainant in closing them up, is a proper remedy.-Springer v. Darlington (Ill.) 946.
A purchaser at foreclosure sale is not estop- ped to sue an adjoining owner for violation of a party wall agreement, by the fact that as mortgagee, and while the adjoining owner also held the equity in the mortgaged premises, he knew of the violation.-Springer v. Darlington (Ill.) 946.
Party reconstructing party wall with openings therein held not entitled to insist on reimburse- ment for half the expense of reconstruction be- fore closing openings.-Springer v. Darlington (Ill.) 946.
Party to party wall agreement held not enti- tled to resist suit to compel solid wall by plead- ing that other party did not intend to use his property for building purposes.-Springer v. Darlington (Ill.) 946.
Decree in an injunction suit to restrain viola- tion of a party wall agreement held not objec- tionable as wrongly depriving the defendant of the possession of his property.-Springer v. Dar- lington (Ill.) 946.
To replace a party wall by a wall in which numerous openings occur is a violation of the party wall agreement.-Springer v. Darlington (Ill.) 946.
Expert testimony as to sufficiency of patent license, see "Evidence," § 9. Harmless error in admission of evidence in ac- tion to recover balance due on sale of patent- ed articles, see "Appeal and Error," § 21. Violation of injunction restraining manufacture and use of patented articles, see "Injunc- tion," § 4.
Warranty against infringement in contract for sale of patented article, see "Contracts," § 2.
§ 1. Settlement and removal.
Married woman, abandoned by husband, may maintain residence apart from him to acquire a settlement.-Bradford v. City of Worcester (Mass.) 310.
Under Pub. St. 1882, c. 83, § 1, cls. 1, 6, 7, a married woman, whose second husband has no settlement, may acquire one by five years' residence in a place, though she has acquired another one through her first husband.-Brad- ford v. City of Worcester (Mass.) 310.
See "Compromise and Settlement"; "Teuder." By garnishee, see "Garnishment," § 2. Of consideration for conveyance to another as creating trust, see "Trusts," § 2.
Of particular classes of obligations or liabilities. See "Judgment," § 8.
Claims against estate of decedent, see "Execu- tors and Administrators," § 4. Price of land sold, see "Vendor and Purchaser," § 2.
In oil and gas leases, see "Mines and Minerals," § 1. Obstruction of highway, see "Highways," § 4. § 1. Actions and other proceedings. In action for penalty for violating Laws 1899, p. 273, relating to practice of medicine, where Appellate Court reverses judgment without re- mand, it should incorporate statement of facts in judgment.-People v. Smith (Ill.) 810.
Subject and title of statute relating to, see "Statutes," § 3.
Testamentary trust held void as suspending power of alienation.-Brown v. Quintard (N. Y.) 225.
A direction to hold certain property in trust for 26 years renders the trust void, as being measured by years, and not by lives.-Brown v. Quintard (Ñ. Y.) 225.
Will construed, and codicil decreeing legacy to one of testator's daughters in the event of her marriage held void as a suspension of the power of alienation.-Herzog v. Title Guarantee & Trust Co. (N. Y.) 283.
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- ties do not suspend the power of alienation is inapplicable. Herzog v. Title Guarantee & Trust Co. (N. Y.) 283.
Bar of action by limitations, see "Limitation of Actions," § 1.
Caused by defective construction of railroad, see "Railroads," § 1.
Caused by dog, see "Animals." Caused by operation of street railroad, see "Street Railroads," § 2.
Conclusion in pleading in action for, see "Plead- ing," § 1.
Damages resulting from proximate or remote Evidence and cause, see "Damages," § 1.
assessment of damages, see "Damages," § 2. Examination of witnesses in action for, see "Witnesses," § 2.
Expert testimony as to probable consequences, see "Evidence," § 9.
Harmless error in exclusion of evidence in ac- tion for, see "Appeal and Error," § 21. Inconsistent statements by witness in action for, see "Witnesses," § 3.
In particular actions or proceedings. See "Equity," § 3; "Injunction," § 2; "Libel and Slander," § 3; "Mandamus," § 3; "Neg ligence," § 2; "Quo Warranto," § 1; "Torts"; "Trover and Conversion," § 1.
Election contest, see "Elections," § 5. For breach of contract, see "Contracts," § 4. Foreclosure, see "Building and Loan Associa tions"; "Mortgages," § 5.
For injuries to live stock, see "Carriers," 2 For injuries from gas, see "Gas." For personal injuries, see "Master and Serv- ant," § 9; "Street Railroads," § 2. For rent, see "Landlord and Tenant," § 4. 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," § 3.
enforce trust, see "Trusts," § 7. Probate proceedings, see "Wills," § 4.
As evidence in criminal prosecution, see "Crim-To inal Law," § 4.
Of criminals as public records, see "Records."
PHYSICIANS AND SURGEONS.
Compensation for services of physician as ele- ment of damages, see "Damages," § 2. Penalty for practicing medicine without license, see "Penalties," § 1.
Traveling optician held not to violate Laws 1899, p. 275, §§ 7, 8, relating to practice of medicine.-People v. Smith (Ill.) 810.
To establish mechanic's lien, see "Mechanics' Liens," § 2.
To restrain cutting of timber, see "Injunction," § 2.
To review judgment, see "Judgment," § 3. To vacate judgment, see "Judgment," § 5. § 1. Form and allegations in general.
Where a petition sought relief against a judg ment on a contract on the ground of fraud, it will be inferred against the pleader that he purposely omitted the defense of fraud in the action on the contract.-Cannon v. Castleman (Ind. Sup.) 455.
Allegations in complaint by servant against his master for damages for personal injuries held to be mere conclusion of the pleader.- As evidence of dedication, see "Dedication," § 1. Indianapolis & G. Rapid Transit Co. v. Fore-
In action by employé for personal injuries, under Acts 1899, p. 234, c. 142, § 9 (Burns' Rev. St. 1901, § 7087i; Horner's Rev. St. 1901.
In criminal prosecutions, see "Criminal Law," § 5169k), making it the duty of manufacturing § 3.
Applicability of instructions to pleadings, see Trial," § 7.
Assignment of errors as to rulings on pleadings, see "Appeal and Error," § 13. Estoppel by, see "Estoppel," § 1. Harmless error as to rulings on pleadings, see "Appeal and Error," § 21.
Judgment on default in pleading, see "Judg- ment," § 1.
Objections for purpose of review, see "Appeal and Error," § 5.
Pleas in abatement, see "Abatement and Re- vival," § 1.
Pleas in quo warranto proceedings, see "Quo Warranto," § 1.
Review of objections dependent on presentation of grounds of review in record, see "Appeal and Error," § 12.
Weight and sufficiency of pleadings of other party as evidence, see "Evidence," § 11.
establishments to properly guard machines, com- plaint held not to plead a conclusion.-Blanch- ard-Hamilton Furniture Co. v. Colvin (Ind. App.) 1032.
§ 2. Declaration, complaint, petition, or
Allegations as to particular facts, acts, or Sup.) 680. transactions.
See "Estoppel," § 3; "Judgment," § 9. Delivery of deed, see "Deeds," § 4. Statute of frauds, see "Frands, Statute of," § In actions by or against particular classes of parties.
§ 4. Demurrer or exception.
In proceedings to compel the insurance super- intendent to issue a certificate to an insurance company, the question whether the state has waived the right to declare a forfeiture of the company held not to arise in view of the answer demurred to by the petitioner.-Yates v. People
See "Carriers," § 2; "Executors and Adminis- trators," § 6; "Master and Servant," § 9;|(Ill.) 775. "Street Railroads," § 2.
It is sufficient to decide a case on the plead Telephone company, see "Telegraphs and Tele-ings after the court has sustained a demurrer phones," § 1. to the answer, and it is not necessary to allow
« ΠροηγούμενηΣυνέχεια » |