See CONTINUANCE; CRIMINAL LAW, 3; PLEADING, 15.
1. Vexatious Action. -Costs of Former Action.-Where a second action is
vexatiously brought by and between the same parties for the same
cause, the proceedings in the second action will be abated until the
costs of the former action are paid. Carrothers v. Carrothers, 530
2. Same.-Presumption as to Veratious Character.-It will be presumed in
such case, in the absence of a showing to the contrary, that the second
ACKNOWLEDGMENT.
See DEED, 3.
ACTION.
See ABATEMENT; ASSIGNMENT FOR BENEFIT OF CREDITORS, 2; CHATTEL
MORTGAGE, 2; CITY, 18; CONTRACT, 4; CORPORATION, 2; EQUITY;
HUSBAND AND WIFE, 2; JURISDICTION.
Pleading.--Forms of Action.-Recovery.--The code of this State consolidates
all forms of action into one denominated a civil action, but that does
not affect the remedy nor authorize a recovery beyond the case made
by the complaint.
Bixel v. Bixel, 534
See PROMISSORY NOTE, 1, 2; WITNESS, 5.
See CRIMINAL LAW, 39; DRAINAGE, 7; EXTRADITION, 5; PRACTICE, 2.
See GUARANTY; RAILROAD, 3; TELEGRAPH COMPANY, 2.
AGREEMENT.
See CONTRACT.
AMENDMENT.
See PLEADING, 13.
APPEAL.
See DRAINAGE, 11 to 13; EVIDENCE, 8; GRAVEL ROAD, 3; RAILROAD, 2;
REAL ESTATE, 2; REMEDIES; REPLEVIN, 2; SUPREME COURT.
1. Will not Lie from Order Requiring Production of Document.-An appeal
will not lie from an order requiring a party to produce a document
for inspection, or to be used as evidence. Section 646, R. S. 1881,
does not apply.
Western U. Tel. Co. v. Locke, 9
2. Stay of Proceedings.-An appeal prayed for in term time, and per-
fected within the time given by the court, suspends all further pro-
ceedings under the judgment appealed from; but an appeal in vaca-
tion, and without bond, does not so operate. June v. Payne, 307
(601)
3. Criminal Law.-Appeal by State.-Motion to Quash.-Pendency of Case.-
While a criminal case is still pending on one count of the indict-
ment, the State can not appeal from a ruling quashing another count.
Sections 1846 and 1882, R. S. 1881, considered.
State v. Evansville, etc., R. R. Co., 581
APPEARANCE.
See DRAINAGE, 4; NOTICE.
APPROPRIATION OF LAND.
See RAILROAD, 1, 2, 16 to 20.
ARGUMENT OF COUNSEL.
See PRACTICE, 2.
Misconduct.-- When Available for Reversal of Judgment.—It is only where the
improper statements of counsel in argument are of such a material
character as to probably influence the jury in returning a wrong ver-
dict that they are available for the reversal of the judgment.
Buscher v. Scully, 246
ARREST OF JUDGMENT.
See CRIMINAL LAW, 5, 40; PLEADING, 10.
ASSAULT WITH INTENT, ETC.
See CRIMINAL LAW, 21, 25 to 27.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. Pleading.-Sufficiency of Creditor's Claim. --A claim against the estate of
a debtor, who has made a voluntary assignment for the benefit of his
creditors, is sufficient when it informs the assignee of the nature and
amount of the creditor's demand. The strict rules of pleading will
not be applied to such claims.
Fosdyke v. Nixon, 133
2. Same.- Purchase of Claims Against Debtor. - Enforcement Against Estate.—
A good-faith purchaser of claims against an embarrassed debtor, who
has made an assignment of his property for the benefit of his cred-
itors, is entitled to the distributive shares of the original holders of
the claims, and may enforce payment against the debtor's estate in
the hands of the assignee.
Ib.
ASSIGNMENT OF ERROR.
See CRIMINAL LAW, 4; PLEADING, 10; SUPREME Court, 8.
ATTACHMENT.
See INJUNCTION, 2.
ATTORNEY AND CLIENT.
See ARGUMENT OF COUNSEL; CHANGE OF VENUE, 2, 3; PRACTICE, 2.
1. Value of Services.— Evidence.--Jury.--In determining the value of per-
sonal services, the jury must be governed by the evidence in the case.
Atkinson v. Dailey, 117
2. Same.-Reference to Third Persons to Fix Value.--Contract.-Where serv-
ices have been performed and no dispute exists as to their value, a
mere oral reference to a third person to fix their value is not conclu-
sive.
Ib.
BANKS AND BANKING.
See CONTRACT, 1; MORTGAGE, 5; TAXES, 1 to 3.
BILL OF EXCEPTIONS.
See INSTRUCTIONS TO JURY, 8; PLEADING, 20; PRACTICE, 2.
1. Delay of Judge in Siguing. - Practice.--If a proper bill of exceptions
is prepared and presented to the judge within the time allowed, his
delay in signing and causing it to be filed, will not deprive the party
of its benefit.
Ohio, etc., R. W. Co. v. Cosby, 32
2. Long-hand Manuscript of Reporter.-The original long-hand manuscript
of the evidence, as prepared by the official stenographer and certified by
him, does not of itself constitute a bill of exceptions. It can only be
certified to the Supreme Court in its original form, by being incor-
porated in a bill of exceptions. R. S. 1881, section 1410.
Marshall v. State, ex rel., 173
See APPEAL, 2; CITY, 11, 12; GUARANTY; REPLEVIN.
Drainage.-Number of Sureties.-Dismissal.-In the absence of any showing
that a bond, with one surety, taken by the county auditor in a drain-
age proceeding instituted under section 4286, R. S. 1881, is insufficient
in other respects, it is error to dismiss the petition on the sole ground
that that statute seems to require more than one surety in the bond.
See section 1221, R. S. 1881.
Schneck v. Cobb, 439
See CONVEYANCE; DESCENT, 4; DRAINAGE, 1; GUARDIAN AND WARD, 4;
Life Insurance, 3; PLEADING, 14; RAILROAD, 10, 13.
CASES MODIFIED, DISAPPROVED, ETC.
Roll v. City of Indianapolis, 52 Ind. 547, disapproved.
City of Fort Wayne v. Coombs, 75
Albert v. State, ex rel., 65 Ind. 413, distinguished and modified.
North v. State, ex rel., 356
Nelson v. Wilson, 61 Ind. 255, and Whiteman v. Swem, 71 Ind. 530, criticised.
Elliott v. Frakes, 71 Ind. 412, distinguished.
Barr v. Barr, 31 Ind. 240, followed.
Langley v. Mayhew, 198
Bumb v. Gard, 575
Simons v. Simons, 197
Edger v. Board, etc., 70 Ind. 331, and Parker v. Board, etc., 84 Ind. 340,
adhered to.
Stout v. Board, etc., 343
See EXTRADITION, 4; OFFICE AND OFFICER, 1, 2.
CHANGE OF VENUE.
1. Repeal of Statute.—So much of the act of March 10th, 1873 (section 414,
R. S. 1881), relating to changes of venue, as applied to criminal cases,
was impliedly repealed by sections 1778 and 1779, R. S. 1881.
State, ex rel., v. Miller, 39
2. Same.-Allowance to Counsel for Defence and Prosecution.-Liability of
County in which Cause Originated.-The court to which a criminal cause
is taken on change of venue may, in its discretion, appoint counsel
both to defend and to assist in the prosecution of such cause, and
make allowances therefor out of the county treasury, which, under
sections 1778 and 1779, may be collected from the county in which
the cause originated.
Ib.
3. Same. Conclusiveness of Allowances.-The allowances made under such
sections, as to their conclusiveness, stand upon the same footing as
those made under the sections of R. S. 1843, construed in Board, etc.,
v. Summerfield, 36 Ind. 543.
1. Recording. Seniority. — Fraud. Where a chattel mortgage is not
recorded within ten days, as required by statute, but a new mortgage,
duly recorded, is given in renewal, the latter will be senior to an
intervening recorded mortgage, executed by the mortgagor upon the
same property for the purpose of defrauding the first mortgagee.
McCormick v. Hartley, 248
2. Same.-Foreclosure of Fraudulent Mortgage.-Injunction.-A mortgagee of
personal property, notwithstanding the mortgage debt is not due, and
without regard to the solvency or insolvency of the mortgagor, may
maintain a suit to enjoin the enforcement of a judgment of foreclosure
rendered upon a mortgage executed to defraud him.
Ib.
Liability for Street Improvement.-Church property is subject to assessment
for the improvement of a street on which it is situate.
Rausch v. Trustees, etc., I
See NEGLIGENCE, 8 to 10; STREET.
1. Defective Sewers.—Contributory Negligence.-Case Disapproved. In actions
against municipal corporations for injuries resulting from the negli-
gent construction or maintenance of sewers, the plaintiff must show
that he was free from contributory negligence. Roll v. City of Indian-
apolis, 52 Ind. 547, disapproved. City of Fort Wayne v. Coombs, 75
2. Same. Use of Ordinary Care and Skill.— Notice of Defects.-Pleading.—
Where a municipal corporation constructs a sewer, it is bound to use
ordinary care and skill, and it is not necessary that it should be
averred in a complaint for injuries resulting from the defective con-
struction thereof, that the corporate authorities had notice of defects
caused by want of skill or care in doing the work.
Ib.
3. Same.-Corporate Authorities Must Keep Sewer in Repair.—Implied Notice
of Defect.-Notwithstanding the fact that a sewer may have been con-
structed with care and skill, a municipal corporation is liable for
injuries caused by a negligent failure to keep it in repair; and where
it is suffered to remain out of repair for such length of time as that
it was the duty of the corporate authorities to take notice of its con-
dition, the law will charge the corporate officers with notice. Ib.
4. Same.-General Authority to Construct Sewers. — The authority to con-
struct sewers is general, and resides in all municipal corporations
unless expressly denied them by the Legislature.
5. Same. Use of Private Property.-Liability for Negligence in Constructing
and Maintaining Sewer.-Where a municipal corporation makes use of
private property for the purpose of constructing a sewer, and in order
to obtain the privilege of using the property submits to the demand
of the owner to construct the sewer according to plans and specifica-
tions prepared by him, it is liable for negligence in the construction
and maintenance of such sewer.
Ib.
6. Same.-Outlet for Sewer.-The outlet is a necessary part of a sewer, and
whenever a municipal corporation, by its system of sewerage, renders
an outlet necessary, it must provide one, and it must be constructed
with ordinary care and skill.
Ib.
7. Same.-Liability to Citizen who Taps Sewer, for Negligent Construction or
Maintenance Thereof.-A municipal corporation is liable to one who,
for his private benefit, connects his premises with a sewer constructed
by such corporation, for injuries resulting from the negligent con-
struction or maintenance thereof.
Ib.
8. Evidence.-Negligence.-Notice of Defects.-In an action against a city
to recover for injuries caused by a defective sewer, constructed by the
corporate authorities, evidence of a break in the sewer about 100 feet
distant from the point where the break occurred which caused the
injury, for which recovery was sought, was competent for the pur-
pose of charging the city with knowledge, as well as for the purpose
of showing the defective character of the work, and materials em-
ployed, and that by reason of time and use the sewer had got out of
repair.
Ib.
9. Same. In such case it is not error to permit the plaintiff to give in
evidence the ordinance, advertisements, bids and contracts relating
to the building of the sewer, as tending to show that the same was
constructed by the city.
Ib.
10. Same.- Validity of Ordinance Providing for Construction of Sewer.-In
such case it is not necessary for the plaintiff to prove that the ordi-
nance directing the construction of the sewer was regularly adopted.
It is enough to show that the city had assumed to adopt it, and under
it had constructed the sewer.
1b.
11. Indebtedness.- Constitutional Limit.—Funding Bonds.-Article 13 of the
State Constitution, adopted March 14th, 1881, prohibiting municipal
corporations from becoming indebted to an amount in the aggregate ex-
ceeding two per centum on the value of their taxable property, and
providing that all obligations in excess of such amount shall be
void, is only prospective in its operation, and will not prevent such
corporations from issuing new bonds, with coupons for future inter-
est, for the purpose of funding debts, with accrued interest, existing
prior to the adoption of such amendment.
Powell v. City of Madison, 106
12. Same.-Effect of Constitutional Amendment Limiting Indebtedness.-The
only effect which the adoption of such constitutional amendment
had upon sections 3230 and 3231, R. S. 1881, which provide for the
funding of the indebtedness of cities and towns, was to limit their
application to debts contracted prior to March 14th, 1881, and to
such as have been since incurred, not in excess of the two per centum
limit upon the value of their taxable property.
Ib.
13. City.-Parol Contract.-Statute of Frauds.-Purchase of Fire Engine.-A
municipal corporation may be bound by a parol contract; but such a
contract for the purchase of a fire engine for a sum greater than
fifty dollars is within the statute of frauds (section 4910, R. S. 1881)
and invalid, unless it is brought within one of the exceptions to such
section.
Over v. City of Greenfield, 231
14. Same.-Common Council.-Resolution.-Regularity of Proceedings.-Pre-
sumption.-Pleading. Where the common council of a city, by reso-
lution, accepts conditionally a proposition for the sale of a fire engine,
the regularity of the proceedings by which such resolution was
adopted will be presumed, and averments showing the particular man-
ner of its adoption are unnecessary.
15. Same.-Written Instrument.—Instruction.-Practice.-Such resolution is
not a written instrument within the meaning of section 362, R. S. 1881,
and does not become part of an answer to a complaint to recover
for the engine by being filed with it, and where its adoption is
not otherwise verified by the record, an instruction construing it will
not be considered.
Ib.
16. Same.-Construction of Contract.-Practice.-Where the evidence is not
in the record, and hence does not show what kind of a contract was
proved to exist between the parties, an instruction construing the con-
tract between them will not be considered.
17. Same.-Sale.-Condition.-Fraud.- Pleading.- Surplusage.- Where an
answer to a complaint to recover the price of a fire engine alleges that
the sale was only a conditional one, and that the plaintiff did not
comply with the conditions, by reason of which the sale was not con-
|