Imágenes de páginas

plaint for a new trial after the close of the term at which a cause has
been disposed of constitute a separate and distinct action, and from
the judgment rendered therein an appeal may be taken to the Su-
preme Court. An appeal from the judgment in the original cause
does not present for review the judgment rendered upon the com-
plaint for a new trial. Harvey v. Fink, 2Jfi

6. Same.Review of Judr/ment.Waiver.—Where a party files a complaint
for review for alleged errors of law only, and prosecutes the proceed-
ing to final judgment, he can not afterwards appeal from the judgment
sought to be reviewed, as the adoption of one remedy waives the
other. 76.

7. Party Accepting Benefit of Judgment not Allowed to Appeal.Mortgage.
Foreclosure. Sale.— iVero Trial an of Right.— Where in an action
to foreclose a mortgage upon three tracts of land there is a de-
cree of forelosure rendered as to two of the tracts, and a judgment
against the plaintiff as to the third tract, the latter can not, after a
sale of the two tracts under the decree, prosecute an appeal to the
Supreme Court to obtain a reversal of the judgment as to the third,
nor can he prosecute such an appeal from a ruling of the court be-
low overruling his motion for a new trial, as a matter of right, as to
such third tract. Sterne v. Vert,

8. Civii Actions—Statute Cowlruetl.— Section 040, R. S. 1881, must be
construed in connection with section tvi:>, and appeals thereunder, as
in all civil actions, must be perfected within one year from the time
judgment is rendered. Wright v. Manns, 422

9. Same.Time.Computation of.—Under section 1280, R. S. 1881, in com-
puting the year within which appeals may betaken, the day on which
the judgment appealed from was rendered is to be excluded; there-
fore, where a judgment was rendered July -3d, 1885, and the tran-
script was filed July 23d, 18S6, the appeal is in time. Ib.

10. Same.—Death of Party.SubsliliUmnof Administrator.—Decedents' Estates.
—Where an action is commenced against a party, who dies while
it is pending, and his administrator is substituted as defendant, the
time within which an appeal may be taken is fixed by the civil
code of practice, and not by section 24">o, R. S. 1881, regulating
appeals in matters affecting decedents' estates. 76.

11. Bond.Supreme Court can not Increase Penally.Solvency of Sureties.
Chanr/e in Financial Condition.—The Supreme Court can not increase
the penalty of an appeal bond as fixed by the trial court; nor will
it interfere with the decision of that court as to the sureties' solvency
and ability to pay, unless it is shown that there has been a change

i in the condition of the parties or sureties.

Midland R. W. Co. v. Wileox, 561

See Gravel, Road, 3.
See Criminal Law, 40 to 42.
See Criminal Law, 2.
See Canal, 3; Gravel Road, 4 to 11; Taxes.
Deed.Preference of Creditors.—Framl — V stipulation in a deed of assign-
ment, made under the statute, that certain creditors shall be pre-
ferred and paid in full, is controlled and annulled by the statute,
and the deed, in the absence of actual fraud, will be upheld as a
valid general assignment. Schwab v. Lemon, 54

See Supreme Court, 5, 7.


1. Abandonment of Proceeding.Diemitsul.-Judgment.Supreme Court.
Practice.—Where an attachment proceeding is instituted, as auxiliary
to an action for the recovery of a debt, and a personal judgment is
taken, without an adjudication of the proceeding in attachment, the
latter will be deemed abandoned. The taking of the judgment is
equivalent to a dismissal of the attachment proceeding, and there be-
ing a full appearance to the main action by the defendant, no avail-
able error can be predicated upon a ruling relative to the auxiliary
proceeding. United States Mortgage Co. v. Henderson, 24

2. Delirery Bond.Custodia Legit.—By the execution of a delivery bond,
under section 924, R. S. 1881, attached property is not withdrawn
from the custody of the law, but its keeping and care are removed
from the sheriff and committed to the claimant until the sheriff may
lawfully demand it to be sold on execution issued on the judgment for
the sale thereof. Wright v. Manns, 4~-

3. Same.Complaint on Delivery BondSeccxsary Arcrments.—A com-
plaint upon a delivery bond, executed by the claimant of attached
property and his sureties, is bad if it fails to allege that after the
rendition of judgment for the sale of the property a special execu-
tion had been issued thereon to the sheriff commanding him to sell the
same, and that by virtue thereof he had demanded of the obligors the
delivery of the property, or the payment of its appraised value, not
exceeding the amount of the judgment and costs. lb.

4. Same.Taking Personal Judgment Only.Effect us to Attachment Proceed-
ings.—The rendition of a personal judgment only against the defend-
ant in an attachment suit is equivalent to a dismissal of the attach-
ment proceedings, and a delivery bond executed therein ceases lo be
effective. Ib.

5. Some.-Surrender of Indemnity.—Discharge of Sureties.—Judgment Xunc pro
Tune.—Where a personal judgment only is rendered against the at-
tachment defendant, on the faith of which his sureties in the delivery
bond surrender indemnity held by them, the subsequent entry, nunc
pro tunc, of a judgment for the sale of the attached property will not
affect them, their liability being at an end. Ib.

See Continuance; Principal And Aoent, 4.

1. Good Fuith.Diligence.Violation of Instructions.Ratification.Compen-
sation of Attorney.—Wherean attorney, in good faith, and acting as he
believes for the best interests of his c1ient. exercising reasonable
skill and diligence, takes steps in the foreclosure of a mortgage, and
the aDpointment of a receiver for mortgaged property, in violation of
instructions of his client, and the latter afterwards ratifies and accepts
the benefits of such action, and adopts the receivership established,
such attorney is entitled to a reasonable compensation for his services.

United States Mortgage Co, v. Henderson, S4

2. Same.—In such case, if the attorney acted in bad faith, or if he had
violated the instructions of his client, and the proceedings taken by
him had not been ratified, he would he entitled to no compensation
for the services so rendered. Ib.

;>. Attorneys Lien.Notice of Intention to Hold.When Muni be Entered.
Assignment of Judgment.—Under section 5276, It. S. 1881, an attorney
does not acquire a lien upon a judgment obtained for a client, even
as against subsequent assignees, unless notice of bis intention to bold
a lien is entered at the time the judgment of the trial court is

See Decedents' Estates, 1; Judgment, 1 to 3; Principal And Surety,

1 to 5.

See Principal And Agent, 6, 7; Taxes.
See Life Insurance, 1 to 3, o to 9.

See Criminal Law, 12, 22, 31; Supreme Court, 9.

1. Statement that Evidence was " Offered" not Equivalent of " Introduced."—A
statement in a bill of exceptions that the parties " offered the fol-
lowing evidence" is not the equivalent of a statement that the evi-
dence was introduced or admitted. Lyon v. Davit, SS4

2. Same.Mutt Show that it Contains all Evidence Adduced.—A bill of excep-
tions which shows on its face that it does not include all the evidence
adduced and the agreements of the parties entered into at the trial, is

3. Same.Long-Hand Manuscript.Certificate of Judge.—It is for the judge,
and for him alone, to certify that the evidence set out in the long-
hand manuscript is all the evidence given in the cause. io.

See Town.
See Taxes, 2.

See Appeal, 11; Attachment; Gravel Road, 5; Guardian And

Ward; Office And Officer, 3, 4.
See Supreme Court, 3.
See Principal And Agent, 5.
See Insurance, 4.
See Lease.

1. Wabash and Erie.Title to Lands Taken by.Easement.—Where lands
were taken, occupied and used under the laws which provided for the
construction of the Wabash and Erie Canal, the estate acquired
therein was an estate in fee simple, and not a mere easement.

Frank v. EvansmUe, etc., R. R. Co., ISt

2. Lands Appropriated for Reservoir Purposes.Title Acquired,—The Wa-
bash and Erie Canal Company acquired title in fee to land appro-
priated by it in 1846 for a reservoir to supply the canal with water.

Blab- v. Kiger, 19S


Alderman v. Nelson, 155


substantially defective.


3. Same.Assessment of Damages.LaprnofTime. Presumption.—After the
lapse of so long a time since the appropriation of the land, it will be
presumed that damages were assessed and tendered or were waived. Ib.

See Mortgage, 2, 5 to 7; New Trial, 5.


1. Huff v. Cole, 45 Ind. 300, distinguished. Post v. Losey, 74

2. Bucklen v. Huff, 53 Ind. 474, distinguished. Post v. Losey, 74

3. Deisner v. Simpson, 72 Ind. 435, distinguished. Robinson v. Rippey, 111

4. Githensu. Kimmer, 68 Ind. 362, limited. Knopf v. Morel, 570

See Appeal, 3; Bill Of Exceptions, 3.
See Supreme Court, 9.

See Schools; Taxes; Town.

See Negligence, 4 to 7.

1. Contract.Care Required Concerning Good*.—A stipulation in a bill of
lading issued by a transportation company, that goods received for
shipment at Boston are "to be forwarded to Louisville depot only,"
does not relieve the carrier from its duty to properly care for them
after their arrival at the latter place.

Merchants Despatch, etc., Co. v. Merriam, ,5

2. Same.Duty to Provide Place of Storage.—Although the bill of lading
is silent on the subject, it is the duty of a common carrier, which be-
comes a part of its contract, to provide a place where goods may be
safely kept after they have been unloaded from the cars in which
shipment is made. Ib.

3. Same.Warehouseman.Negligence.Delivery to Wrong Person.Conver-
sion.—After goods are unloaded and stored, the liability of the car-
rier becomes that of a warehouseman, whether the depot or place of
storage belongs to it or to another; and if, through its negligence, the
goods are delivered to a wrong person, it is liable to the owner upon
its contract for damages as for a conversion. Ib.


See Schools.
See Intoxicating Liquor, 2.

8ee Contract, 8; County, 5.
Contract.Consideration.—In order that a compromise may constitute a
sufficient consideration for the enforcement of an executory contract,
there must have been an actual bona fide claim, founded upon a col-
orable right, about which there was room for honest doubt and actual
dispute. United States Mortgage Co. v. Henderson, 24

See Contract, 7; Deed; Insurance, 7 to 10.

See Compromise; Contract, 5; Deed; Judgment, 4, 11; Married
Woman, 4; Pleading, 4; Principal And Surety, 3; Soldier's
Bounty, 2.

See Criminal Law, 23 to 29; Malicious Prosecution; Tout.

See Drainage, 1; Gravel Road, 5; Town.
Repeal of Old Constitution by Inconsistent Provisions of Sew.Statute.Septal
by Implication.—The adoption of a new Constitution repeals and su-
persedes all the provisions of the older Constitution, not continued in
force by the new instrument; and the same rule applies to amend-
ments of an existing Constitution, which are inconsistent with the
original text of the instrument amended; also to statutory enact-
ments which are inconsistent with later constitutional provisions
embracing the same subject-matter. Griebel v. State, ex ret, 369

See Parties.

Absence of Attorney.Discretion of Trial Court.Reversal of Judgment.—The
refusal to continue a cause, on account of an attorney employed
therein being professionally engaged elsewhere, is not a ground for
reversal, unless it clearly appears that injustice has been done, and
the discretion vested in the trial court plainly abused.

Evansville, etc., R. R. Co. v. Hawkins, 5£<


See Common Carrifr; Compromise; County Commissioners; Deed;
Estoppel, 2; Guaranty; Insurance; Lease; Life Insurance;
Master And Servant, 6; Pleading, 4; Principal And Agent, 1
to 6; Principal And Si-rkty; Real Estate; Soldier's Bounty.

1. Construction of Railroad.Estimates nf Engineer.Stipulation that They
Shall be Conclusive. Recourse to Courts.—A stipulation in a contract be-
tween a railroad company and a contractor, that the estimates made
by the former's engineers as to the quality, character and value of the
work performed by the contractor shall be final and conclusive against
the latter, "without further recourse or appeal," can not deprive
him of the right to resort to the courts for the recovery of what may
be due him, notwithstanding the estimates.

Louisville, etc., R. W. Co. v. Donnegan, 179

2. Same.Taking Control of Work from Contractor.—A provision in the
agreement, that, if the contractor fails to employ such a force of work-
men as the company's engineer may deem adequate to a completion
of the work within the time fixed, the latter may do so and charge
the contractor with the amount paid in wages, must be given a reason-
able construction, and control of the work can not be taken from the
contractor without sufficient cause. lb.

3. Same.Competency of Engineers.Implied Undertaking as to.—In such
case there is an implied undertaking on the part of the railroad com-
pany that the engineer to be put in charge shall be competent, hone>t
and reasonably careful, and that he will not make delays, cansed by
his wrongs, a pretext for taking the work out of the control of the
contractor. lb.

4. Same.Material FurnMed at Direction of Engineer.Compensation Not-
withstanding Contract.—Yfhere the work which the contractor under-

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