See CRIMINAL LAW, 16; DRAINAGE; FEES AND SALARIES, 2; JUSTICE OF
THE PEACE, 4; PRACTICE, 3, 4; RAILROAD, 5; SUPERIOR COURTS;
SUPREME COURT, 24, 26.
1. Parties.-Execution.-In an appeal to the Supreme Court by A. from a
judgment refusing to quash an execution against A. and B., on the
motion of A., it is not necessary to make B. a party.
McAllister v. State, ex rel., 256
2. Same.-Time.-Assignment of Errors.-An appeal from a judgment over-
ruling a motion to quash an execution may be taken, and is in time
if taken, within a year from the time of overruling the motion; and in
such case the record is conclusive as to the time, and can not be con-
tradicted by answer to the assignment of errors.
Ib.
Approval.-Waiver.-Complaint.-Principal and Surety.-The approval of an
appeal bond may be waived by agreement of the parties, and a com-
plaint in an action on such bond, which avers that the penalty was
fixed by the court, that the bond was filed within the time fixed by
the court, that the approval of the security by the court was waived,
and that proceedings were stayed on the judgment during the pen-
dency of the appeal, is sufficient on demurrer. Easter v. Acklemire, 163
APPEARANCE.
See ATTACHMENT, 1, 4.
APPRAISEMENT.
See GUARDIAN AND WARD, 1; SHERIFF'S SALE, 3, 4, 20.
ARBITRATION AND AWARD.
1. Practice.-Motion for New Trial.--Exceptions.-Under the statute of Feb-
ruary 3d, 1852, relative to arbitrations and umpirages (sections 830
to 855, R. S. 1881), a motion for a new trial is not contemplated or
provided for, but the proceedings are summary, and the proper mode
for reserving questions for the Supreme Court is by exceptions.
Coulter v. Coulter, 542
2. Same.-Statutory Arbitration.--Copy of Award.—Waiver.-In a statutory
arbitration, the general rule is that it is necessary to the validity of
the award that a copy thereof should be delivered to each of the par-
ties thereto, or left at his last and usual place of residence, by one of
the arbitrators, within the time limited by law; but it is competent
for either of the parties to waive, either expressly or impliedly, the de-
livery of a copy of the award to himself, and such waiver will validate
the award as to him, on that ground.
16.
3. Same.--Costs of Arbitration.-Evidence.-Supreme Court.-Presumption.—
When the statement of the costs of arbitration is offered in evidence
and is objected to, on the ground that the costs were not ascertained,
estimated and returned with the award, and the ground of objection
is not apparent, nor shown to be true in fact, the Supreme Court can
not say, that the trial court erred in overruling the objection and ad-
mitting the statement in evidence, and will therefore presume that the
ruling of the court was not erroneous.
Ib.
ARREST OF JUDGMENT.
See DRAINAGE, 2.
ASSIGNMENT.
See INSURANCE, 4; MARRIED WOMAN, 2; PROMISSORY NOTE, 2, 18 to 20;
VOLUNTARY ASSIGNMENT.
See APPEAL, 2; JUDGMENT, 6; SUPERIOR COURTS, 1; SUPREME COURT, 1,
7, 16, 25.
1. Practice.-Demurrer.-Where the record shows the sustaining of de-
murrers to different answers, an assignment that the court erred in
sustaining the demurrer to the answer is too indefinite. The particu-
lar answer intended should be designated.
Bolin v. Simmons, 92
2. Same.-New Trial.-Causes for a new trial can not be assigned as er-
The proper assignment is upon the overruling of the motion for
3. Supreme Court.-Practice.-Matters constituting causes for a new trial
do not constitute proper assignments of error, and, if assigned as in-
dependent errors, present no question for the decision of the Supreme
Court.
Ramsey v. Rushville, etc., G. R. Cò., 394
ATTACHMENT.
1. Garnishee.-Appearance.-Summons.—Continuance.-A motion by a gar-
nishee to set aside the service of summons upon him comes too late
after the garnishee has submitted to a rule to answer and agreed to a
continuance of the cause.
Baltimore, etc., R. R. Co. v. Taylor, 24
2. Same.-Record.-Supreme Court.-Unless the motion by a garnishee to
set aside the service of summons upon him is contained in a bill of
exceptions, it is not properly in the record.
Ib.
3. Same.-Pleading.-Reply.—Misnomer.-To an answer by a garnishee,
that nearly four years after the service of summons upon him, the
plaintiff had amended his affidavit of garnishment by striking out of
the name of the principal defendant "Jonathan," and inserting in-
stead the name " Johnson," and that before said amendment the gar-
nishee had fully paid said "Johnson," without notice, etc., it was
replied that the principal defendant was as well known, at the com-
mencement of the suit, by the name "Jonathan " as "Johnson," which
was well known by the garnishee before he paid said "Johnson."
Held, that the reply was good on demurrer.
4. Same.-Practice.-Bond.-Objection by garnishee, after appearance of
the principal defendant, to the attachment bond, can not be enter-
tained. The bond is sufficient if signed by the surety only.
Ib.
5. Same.-Amendment. The amendment of the original affidavit and un-
dertaking in attachment, without objection by the principal defend-
ant who appears, is not a matter to which a garnishee can make
objection.
6. Same.-Non-Residence of Defendant.-The non-residence of the principal
defendant in attachment, as a ground for attachment, if not questioned
by him, is not an issue as between the plaintiff and garnishee, upon
denial by the latter of indebtedness to the principal defendant.
7. Same. The correction of a misnomer of the principal defendant in
attachment, where he appears, does not vitiate the proceedings against
the garnishee, nor lessen the protection which the proceedings would
otherwise afford the latter against the former.
Ib.
8. Same.-Judgment.-Costs.Where the garnishee is found to be indebted
to the principal defendant in a sum sufficient to pay the plaintiffs and
the costs, it is not error to adjudge costs against the garnishee. Ib.
ATTORNEY.
See DIVORCE, 2; INJUNCTION BOND; PRINCIPAL AND AGENT, 3; SHERIFF, 2
Negligence.-Judgment.-Complaint.-A complaint by a client against an at-
torney, averring that upon a note in his hands for collection, contain-
ing no waiver of appraisement laws, his attorney obtained a judgment
with such waiver, in consequence of which the property of the debtor,
worth $3,000, was sold for $306, leaving the debtor insolvent and $1,200
of the judgment unsatisfied and worthless, and that, if the judgment
had been without the waiver, the property sold would have yielded
enough to satisfy the judgment, is insufficient on demurrer.
See DIVORCE, 2; INJUNCTION BOND, 2.
ATTORNEY GENERAL.
See COUNTY CLERK, 2, 5.
AUTHENTICATION OF FOREIGN STATUTES.
See EVIDENCE, 5.
See CRIMINAL LAW, 8.
BAILMENT.
See BANKRUPTCY.
BANKRUPTCY.
Fiduciary Debt.-Discharge.-Factor or Commission Merchant.-Bailment.—The
obligation of a factor or commission merchant to his principal for the
proceeds of goods sold is not, under the bankruptcy law of 1867, a
fiduciary debt, and is, therefore, discharged by a discharge in bank-
ruptcy.
Du Pont v. Beck, 271
BASTARDY.
See REPLEVIN BAIL.
Recognizance.-Breach.-Failure to Replevy.―Judgment. In bastardy the de-
fendant entered into the usual recognizance to appear and abide the
judgment. The cause was afterwards compromised by agreement be-
tween the putative father and the mother, by the payment of a sum
of money, and a stipulation for a judgment for a certain sum, payable
as the court should direct, to be replevied. Judgment was accordingly
entered, the relatrix acknowledging in court that satisfactory provision
had been made for the support of the child.
Held, that a failure to replevy the judgment was not a breach of the con-
dition of the recognizance.
Fry v. State, ex rel., 465
See ATTACHMENT, 2; EVIDENCE, 6, 7; SUPREME COURT, 6.
1. Practice.-Motion for New Trial.-The motion for a new trial and ex-
ception to the ruling thereon may be made a part of the record by a
bill of exceptions.
Stagg v. Compton, 171
2. Same.-Stenographer's Report of Evidence.-A stenographic report of the
evidence, embodied in a bill of exceptions, followed by a statement
that that was all the evidence given in the cause, shows the evidence,
though it do not appear that the stenographer was sworn.
Ib.
3. Supreme Court.-Record.-Filing of Bill of Exceptions.-Where time is
given beyond the term, in which to prepare and file a bill of excep-
tions, the record must affirmatively show that it was not only signed
but filed within the time limited, or it will not be considered by the
Supreme Court as constituting a part of the record. Dunn v. Hubble, 489
4. Documentary Evidence.-In order to present a question to the Supreme
Court concerning the refusal to admit documentary evidence, the doc-
uments rejected must appear in the record by bill of exceptions.
Langohr v. Smith, 495
BILL OF PARTICULARS.
See JUSTICE OF THE PEACE, 3.
BONA FIDE PURCHASER.
See JUDGMENT, 3, 4; PROMISSORY NOTE, 9.
See APPEAL BOND; ATTACHMENT, 4, 5; BASTARDY; COSTS, 2; COUNTY
CLERK; CRIMINAL LAW, 8; GUARDIAN AND WARD, 1 to 5, 8; IN-
JUNCTION BOND; JUSTICE OF THE PEACE, 1, 5; PLEADING, 9; SHER-
IFF: SPECIFIC PERFORMANCE; TOWNSHIP TRUSTEE, 4 to 7; VENDOR
AND PURCHASER, 3.
See SUPREME COURT, 13.
BURDEN OF PROOF.
See INSANITY, 4.
BURGLARY.
See CRIMINAL LAW, 15.
CASES DISAPPROVED, DISTINGUISHED AND OVERRULED.
1. Dictum in Moore v. State, ex rel., 55 Ind. 360, as to repeal of statute by
implication, disapproved.
Carr v. State, ex rel., 342
2. Ketchum v. Schicketanz, 73 Ind. 137, and Mark v. Murphy, 76 Ind.
534, as to wife's inchoate interest in real estate, under section 2508,
R. S. 1881, distinguished.
Hudson v. Evans, 596
3. Glidewell . Spaugh, 26 Ind. 319, that a judgment of a competent
court valid upon its face is not prima facie sufficient to support a
judicial sale, overruled.
Woolen v. Rockafeller, 208
4. Jones v. Thomas, 8 Blackf. 428, as to the right of a tenant to crops on
land sold on execution or mortgage lien, distinguished.
Heavilon v. Farmers Bank, 249
See RAILROADS, 7.
CHANGE OF VENUE.
See PRACTICE, 12.
CHATTEL MORTGAGE.
See INSANITY, 3, 4; PARTNERSHIP.
1. Recording.-Time.--The time within which the statute requires a chat-
tel mortgage to be recorded, R. S. 1881, section 4913, is computed by
excluding the day on which it was executed and including that on
which it was recorded.
Towell v. Hollweg, 154
2. Indemnifying Mortgages.-Priority.-Of two indemnifying mortgages
that first executed and recorded is the prior lien.
3. Same.-Conversion.-The holder of a senior mortgage may maintain an
action against the holder of a junior mortgage for a conversion of
the mortgaged goods.
4. Same.-Damages.-The purchaser of mortgaged property takes it sub-
ject to the mortgage, and, if he convert it, he is liable to the mort-
gagee for its value, not exceeding the amount due on the mortgage. Ib.
5. Same.-Fraud.-Evidence.-Supreme Court.-Verdict.-Where, in such a
case, the evidence shows actual notice of the mortgage, and that the
mortgagor was permitted to remain in possession of the goods and sell
them at retail, but no actual fraud, the Supreme Court will not inter-
fere with a verdict for the mortgagee.
See DRAINAGE; FEES AND SALARIES, 2; JUSTICE OF THE PEACE, 4.
1. Adjourned Terms.-Reason for Adjournment.-Repeal of Statute.-Statute
Construed. The act of March 7th, 1877, regarding adjourned terms,
Acts 1877, Reg. Sess., page 28, repealed the act of February 12th, 1855,
R. S. 1881, section 1333, but not section 793, 2 R. S. 1876, p. 313, R. S.
1881, section 1332.
Washer v. Allensville, etc., T. P. Co., 78
2. Same.-Jurisdiction.--An order November 6th, 1878, reciting that the
October term would expire by limitation November 9th, 1878, leaving
business pending and undisposed of for want of time, appointing an
adjourned term for Monday, November 11th, 1878, and directing pub-
lication, supplemented by a like order November 9th, 1878, and due
proof of the publication of a copy of the order in a designated paper,
November 7th, 1878, show a substantial compliance with the statutes,
and that the court meeting Monday, November 11th, 1878, had juris-
diction of parties appearing without objection, and of the subject-
matter of their cause tried before a jury.
See NEGLIGENCE, 1; TAXES, 6, 15, 17.
1. Street Assessment.-Sale Under Precept.- Misdescription.—Mistake.—Action
to Quiet Title.-Evidence.--Under the statute, R. S. 1881, sec. 3165, a
city clerk has no authority to issue a precept for the collection of an
assessment for a street improvement without an order of the council,
and a sale under it is absolutely void; and in a suit by a purchaser
under a precept against lot 20, to quiet his title, a record of the coun-
cil proceedings, showing a precept ordered against lot 52, is not ad-
missible, nor is parol evidence admissible, showing that the council
intended to order the precept against lot 20. Langohr v. Smith, 495
2. Same.-Deed.-Recitals.-Where the evidence aliunde shows recitals in
a deed executed pursuant to a sale under a precept for the collection
of an assessment for street improvements to be false, the recitals can
not be deemed to be true.
Ib.
COLLATERAL ATTACK.
See JUDGMENT, 5.
COMMISSION MERCHANT.
See BANKRUPTCY.
CONDITION PRECEDENT.
See CONTRACT, 6; INSURANCE, 1.
CONSIDERATION.
See COUNTY ORDER, 1; DECEDENTS' ESTATES, 3; PROMISSORY NOTE, 8;
REAL ESTATE, ACTION TO RECOVER, 4; VENDOR AND PURCHASER, 3.
See CRIMINAL LAW, 8; RECOGNIZANCE, 3.
CONSTITUTIONAL LAW.
1. Publication of Delinquent Tax List.-Fees and Salaries.-Repeal of Statute.
-Section 28 of the fee and salary act of March 31st, 1879, Acts 1879,
p. 130, fixing the price for publishing delinquent tax lists, is embraced
within the title of the act and is constitutional, and repeals that clause
in section 3 of the act of March 21st, 1879, Acts 1879, p. 199, in rela-
tion to such publication.
Bitters v. Board, etc., 125
|