1. New Trial-Sufficiency of Notice. Where a party appears before a justice of the peace on the hearing of a motion for a new trial, and does not object to the sufficiency of the notice, he cannot afterwards avail himself of that objection. Foist v. Coppin et al.... ..471
See FALSE IMPRISONMENT, 2.
1. Pleading.-In an action for malicious prosecution, the complaint must allege that the prosecution was instituted maliciously and without probable cause. Seeger v. Pfeifer.......13 Instruction.-There is a distinction between actions for malicious prosecution and for false imprisonment. In the former it is the duty of the court to instruct the jury, that to maintain the action the plaintiff must prove that the prosecution was malicious and instituted without probable Ibid.
Judgment.-A justice of the peace has no power to change, vacate, or in any manner interfere with a judgment he has rendered, except to 2. grant a new trial, or to enter satisfaction where the judgment is subsequently paid........ ........Ibid. 3. Pleading.-Evidence.-In a suit on a promissory note before a justice, where the general denial was waived, and it was answered that the note was given for a field of corn falsely and fraudulently represented by the payee of the note to contain twenty acres of good corn, fifteen acres being first quality and five acres soft, fair corn, which representations were relied upon by the defendant, whereas, in fact, but ten acres of said corn were of any value; Held, that evidence that the payee of the note had gathered and removed ten acres of corn without the defendant's knowledge, before the sale, was inadmissible under the answer. Brooker v. Hetzelgesser.............537 | I.
Entry by Landlord.—Administrator.
Suit by the administrator of a de-
ceased tenant against the landlord,
for forcible entry upon the death of
the tenant, and taking possession of
the leased property, during the con-
tinuance of the term, and converting
crops growing on the premises.
Held, that the administrator was the
proper party to bring the action in
the court of common pleas. Smith
et ux. v. Dodds et al.....................452
LIMITATIONS, STATUTE OF.
See STATUTE OF LIMITATIONS.
Sce FRAUDULENT CONVEYANCE, 3.
MARRIAGE.
See DIVORCE, 3 to 6.
MAYOR.
See OFFICE AND Officer, 1, 2.
See HUSBAND AND WIFE, 16 to 21.
To give a person furnishing materials for a new building a right to acquire a lien on the building and real estate, to the extent of the value of the materials furnished, it is not necessary that the materials should be furnished to the owner of the real estate who is crecting the building cr to his immediate contractor; but section 647 of the code, as qualified by section 648, gives such right to any person furnishing materials for a new building to a sub-contractor. Barker v. Buell........ ......297
Same-Section 649 of said act has no application to liens; the notice provided for in said section, to be given to the owner of the property, is in order to fix a personal liability upon the owner, and is not necessary in order to acquire a lien......... Ibid. 3. Pleading.-Complaint.-Complaint by A. against B., alleging that the defendant and one C. owned certain town lots, and were erecting a new brick building thereon; that the plaintiff sold and delivered to one D., who
was a paper mill. B., who held a
subsequent mortgage on the same
property, was made a party, and
answered that at the time he received
his mortgage, he examined the re-
cords, and saw a record of the plain-
tiff's mortgage, and believing that the
same did not embrace the property
mortgaged to himself, he received his
mortgage.
was a sub-contractor of B. and C.,[
brick to be used in the building, and
which were so used, and which were
not paid for; that within sixty days
after the completion of the building,
plaintiff filed in the office of the re-
corder notice in writing of his inten-
tion to hold a lien on the lots and
building for the amount due for the
brick, which notice was duly recorded,
a copy thereof being made part of
the complaint; and that C. had sold
and conveyed his interest in the lots
to B. Prayer that the lien be en-3. Fixtures.-Machinery put in a mill
forced and the property sold, &c.; the
suit being instituted within one year,
&c.
Held, that the complaint was good on
demurrer..
.....Ibid.
MISJOINDER.
Of Causes. See PRACTICE, 3.
MISTAKE.
See COURT OF COMMON PLEAS; PAY-
MENT; REDEMPTION.
1. Pleading.-Parties.-In a complaint
to foreclose a mortgage, it is sufficient,
in order to show that a person made
a defendant is a proper party, to al-
lege that he has, or claims to have, a
lien on the mortgaged premises.
Bowen et al. v. Wood....... .268
Same.-A mortgage contained the
following description of the property:
"The following real estate in Carroll
county, in the State of Indiana, to
wit: lots 8, 13, and 14, in block 17,
and lot 5 in block 18, together with
all the privileges and appurtenances
unto the same belonging, as also all
the stock, implements, machinery and
apparatus in and about the paper mill
upon said premises situate." In a
complaint to foreclose the mortgage,
it was alleged that by this description
it was understood and intended by
the parties that the mortgage should,
and did, embrace certain property,
more particularly described in the
complaint, by location, section, town-
ship, and range, and that the mort-
gagor never owned any other lots in
said county or elsewhere on which
Held, that the answer of B. was bad.
Held, also, that the property was suf
ficiently described to identify it. Ibid.
after the execution of a mortgage, to
supply the place of old and worn
out articles, becomes a part of the
realty, and is subject to the lien of
the mortgage...
.... Ibid.
4. Of Personal Property. - Foreclo-
sure.-Parties.-Where A. executed
a mortgage on certain personal prop-
erty to B., the mortgagor to remain
in possession by the terms of the in-
strument until delivery of the prop-
erty was demanded by B., and the
mortgage was duly recorded within
ten days after its execution, and after-
wards part of the property was sold
and delivered to C. by the mortgagor,
and the mortgagee subsequently de-
manded possession of the property
from A. and on his refusal to deliver
the same, demanded from C. a deliv-
ery of the property purchased by
him;
Held, that C. was a proper party defend-
jury, he cannot recover. Newhouse v.
Miller et ux........
..463
Same. Complaint. — Obstruction
of Highway-Verdict.-Complaint,
that plaintiffs were in a buggy drawn
by a horse driving along a highway;
that defendant obstructed the high-
way by then and there stopping with
his wagon, drawn by two horses, in
the middle of said highway; that
plaintiffs requested defendant to re-
move, in order that they might freely
pass along said highway; but defend-
ant refused; and thereupon plaintiffs,
in attempting to drive and pass
around said obstruction, using due
care and diligence, without any fault
or negligence on their part, by reason
of said unlawful obstruction and by
the said negligence and wrongful act
of defendant, were overturned and
cast upon the ground with great force
and violence, whereby one of the
plaintiffs, wife of her co-plaintiff, was
injured; wherefore, &c. No demurrer
to the complaint was filed in the
court below, but, on assignment for
error in the Supreme Court that the
complaint did not state facts suf-
ficient;
Held, PETTIT, J., that the complaint
trial under section 601, must make
his application, pay the costs, and
obtain the order of the court granting
a new trial, or its refusal to do so,
within one year after the rendition
of the judgment, or the ruling of the
court upon the motion cannot be
assigned for error..
Motion for New Trial.-Where the
evidence does not justify a finding
against one of several defendants, but
does against the others, and there is
a finding against all, a motion for a
new trial by all the defendants, al-
leging that the finding is not sus-
tained by the evidence, is sufficiently
specific. Graham et al v. Hender
......... 195
5. Same.-A motion for a new trial,
assigning as reasons therefor, that
"the instructions given by the court
to the jury are erroneous, in this,
that the same are contrary to, and are
not, the law," and that, "the court
erred in instructions given to the
jury," is sufficiently specific to raise
the question of the correctness of
any instruction given, the party
making the motion having, at the
proper time, excepted to all the in-
structions given. Bartholomew v.
Langsdale.
...........278
Same. Excessive Damages. —A
question as to excessive damages can
only be reached by a motion for a
new trial. Brown et al v. Ellis..377
As of Right.-In an action involv
ing the title to real estate and the
possession thereof, a new trial
claimed as a matter of right, under
section 601 of the code, must be
granted within a year from the ren-
dition of the judgment, or the court
has no power to grant it. Hays et al.
v. May et al.........
...427
was insufficient on the error assigned,
because it was the fault and negli-6.
gence of plaintiffs in attempting to
drive past defendant which occa-
sioned the injury complained of;
WORDEN, J., that the complaint would
have been bad on demurrer, but was
cured by verdict; DOWNEY, C. J.,
and BUSKIRK, J., that the complaint
was sufficient......
See JUSTICE OF THE PEACE, 1. Motion
for. See ATTACHMENT, I. Miscon-
duct of Jury. See CRIMINAL LAW,
15; JURY.
New Trial as of Right.-The filing
of a motion and payment of costs
within a year after a judgment for the 1.
recovery of real estate does not entitle
a party to a new trial as a matter of
right under section 601 of the code.
Ferger v. Wesler.........
..53
2. Same. Power of Court in Vaca-
tion. The court cannot grant a new
trial in vacation...........
Ibid.
3. Same. The party who seeks a new
Judicial Office.-Mayor.- Prison
Director.-It seems that the office of
mayor of a city incorporated under
the general law of 1867 for the in-
corporation of cities is a judicial of-
fice, and that, therefore, the incum-
bent thereof is inelligible to the office
of prison director during the term for
which he was elected mayor. How
Jurisdiction. In a procceding for
partition, the court has ample power
to settle the rights of parties inter-
ested in the land; and if it has to be
sold, their rights are the same in the
proceeds that they were in the land;
and the court has power to adjust.
and secure their rights, whether legal
or equitable, in the proceeds of such
sale. Milligan v. Poole et al......64
ceedings for partition, making B. and
C. parties defendants, and under the
proceedings the land was sold by
order of the court.
Held, that the contract of sale between
B. and C. must be held to have been
made with reference to the legal inci-
dents pertaining to the land; that C.,
when he contracted with B. for the
purchase of an undivided interest in
the land, knew that A. had the right
at any time to compel partition, or in
the event that a division could not
be made, to have the land sold; and
hence the sale of the land in the suit
for partition was not a breach of the
bond to convey, made by B. to C.;
that after the sale B. was no longer
bound to convey, and C. was no lon-
ger in a condition to demand a con-
veyance.
Held, also, that B. held the legal title
only as security for the payment of
the purchase-money, and he was
entitled to have the residue of the
purchase-money coming to him from
C. paid out of the proceeds of the
sale, if there was sufficient of it; if
not sufficient, he had a right to retain
the notes of C. as evidence of his
right to collect the residue when it
should become due........................................... Ibid.
Pleading.-Cross Petition.- Improve-
ment.-A claim of defendants in a suit
for partition, for the value of improve-
ments made on the real estate, must be
presented by cross petition, and should
be filed before the judgment of parti-
tion and the appointment of commis-
sioners; but it is not error for the
court, in its discretion, to entertain
such petition for the adjustment of
the rights of the parties, after the com-
missioners have filed a report of parti-
ition Stafford et al. v. Nutt et al...93
Improvements.-Where a report of
partition has been made, and a cross
petition for the adjustment of im-
provements has thereafter been filed,
and the value of improvements made
by the defendant ascertained, the
plaintiff has a right to pay his share
of the value of the improvements, in
money, and retain his full share of
the common property; and if the
plaintiff so elects to pay in money,
the report of the commissioners
should be affirmed; and in such case,
it is error to vacate the original
judgment of partition, and proceed
Parties. All persons interested in
the land should be made parties. Ibid.
3. Liens.-Persons holding a lien on 6.
any undivided interest, by mortgage,
judgment, or otherwise, if made par-
ties to the suit, will be bound by the
partition, and limited in their claims
to the share set off to the party under
whom they claim....................................................... Ibid.
4. Same.-A. and B. owned certain
real estate as tenants in common. B.
sold his undivided interest to C., and
gave him a bond for a deed when
paid for, and put him in possession;
a part of the purchase-money was
paid by C. and his notes given for
the balance. A. then instituted pro-,
anew to render judgment and appoint new commissioners to make partition........ ...Ibid.
See CONTRACT, 1; EVIDENCE, 4, 5.
Partners.-Sale of Interest-Lien of Taxes.-Set-off.-Where one partner 1. in a firm sold his interest in a stock of goods belonging to the firm to his co-partners, receiving their promissory note therefor, and subsequently, to prevent a seizure and sale of the goods for delinquent taxes, which were a lien on the entire stock when said interest was so purchased, said co-partners paid off the amount of the taxes;
Held, that the partners who had so purchased said interest could set-off 3. against a like portion of the sum due on the note, the amount of taxes so paid by them which constituted a lien on the interest so purchased. Evans et al. v. Bradford.............................527
Application of Payments.-Where a purchaser of real estate encumbered by mortgages assumes the payment of a portion of the mortgage debts, as a part of the purchase-money, the amount so assumed becomes the personal debt of the purchaser; the residue is not the personal debt of purchaser, although he may be compelled to pay the same to save his property; and in such case a general| payment made by the purchaser on the mortgage debts, will be applied to the portion for which he is personally liable. Snyder v. Robinson et al............ ...311
2; JUSTICE OF THE PEACE, 3; MALI-
CIOUS PROSECUTION, 1; MECHANIC'S
LIEN, 3; MORTGAGE, 1, 2; PARTI-
TION, 5; PROMISSORY NOTE, 2;
RAILROAD, 4, 5; REAL PROPERTY,
RECOVERY OF, 1, 2; SALE, 1, 3;
STATUTE OF LIMITATIONS; SU-
PREME COURT, 5, 6, 7; TRESPASS;
VICIOUS ANIMAL, 2.
Demand.-Where there is a contract to execute a conveyance of real estate, and no time is fixed for the delivery of the conveyance, a demand before suit is instituted is necessary. In such a case the complaint must allege a demand. Mather v. Scoles....I Same-Conveyance of Real Estate. In general, an action cannot be maintained upon an agreement to convey real estate until after a conveyance has been demanded................Ibid. Demurrer Waived by Answer.-A party cannot, at the same time, demur to and answer a complaint. By answering, he waives his demurrer. City of Jeffersonville v. Ferryboat John Shallcross et al.......................19 4. Promissory Note. Complaint.— Evidence. In a complaint by M.and B. upon a note, they alleged that they were doing business under the firm name and style of M. & B., and that the defendants were doing business under the name and style of N. & V., and that the defendants by their note, a copy of which was filed with the complaint, promised to pay the plaintiffs, &c.
Held, that the note being set out, the allegations of the complaint were equivalent to a direct charge that the defendants, by the names of N. & V., by their note, promised to pay the plaintiffs by the names of M. & B. the sum mentioned in the note. Held, also, that the allegations in the complaint as to the partnership or firm name and style of the respective parties, was mere surplusage, and not necessary to be proved, and might be regarded as stricken out; and the execution of the note not being denied under oath, no proof was necessary other than the note itself. Napier et al. v. Mayhew et al ...276 Fraud.-To make a good charge of fraud, it must be shown in what the fraud consisted. Kerr v. The State, ex rel. Wray..... 288 Answer. A paragraph of an
See AMENDMENT; CONTRIBUTION, 1, 3,
4; COUNTY COMMISSIONERS, 4; DE-
MURRER; DIVORCE, 4; EXECUTOR
AND ADMINISTRATOR, I, 2; FALSE
IMPRISONMENT, 1; FRAUDULENT
CONVEYANCE, 5; HUSBAND AND
WIFE, 20, 21; JOINT CONTRACT, 1,6.
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