-No judgment, either for or against such estate, can properly be ren-
dered in such action, but such misjoinder of the administrator is
waived by a failure to object thereto.
See CASES DOUBTED, EXPLAINED, MODIFIED OR OVERRULed, 4.
See GUARDIAN AND WARD, 1 to 8, 17; MECHANIC'S LIEN; PROMISSORY
PETITION FOR REHEARING.
See JUDGMENT, 5.
See CITIES AND TOWNS, 5 to 9; CITY TREASURER, 1, 2, 10, 12, 13; CON-
TRACT; CONVEYANCE, 1; CORPORATION, 2, 7, 8; COUNTY COMMISSION-
ERS, 2 to 5; COVENANT, 3, 4; ESTOPPEL, 1, 2; FALSE IMPRISONMENT,
4; GUARDIAN AND WARD, 9 to 11, 16; HIGHWAY, 1; HUSBAND AND
WIFE, 3; MECHANIC'S LIEN; MORTGAGE, 1, 3, 4; NEGLIGENCE, 1, 2;
PARTITION, 1, 4, 5; PRACTICE, 1, 3, 4, 6, 8, 9, 10 to 16; PROMISSORY
NOTE, 1, 4, 13, 14, 16, 18, 22, 23; RAILROAD, 1, 4; REVIEW OF JUDG-
MENT; SHERIFF, 1, 2; SHERIFF'S SALE; SPECIFIC PERFORMANCE;
STATUTE OF LIMITATIONS, 2, 3, 5; SUPREME COURT, 5; TAXES, 1;
TRESPASS, 1.
1. Practice. - Harmless Error.-The sustaining of a demurrer to a para-
graph of a pleading is harmless, when the matters alleged therein are
admissible in evidence under a remaining paragraph. May v. Pavey, 4
2. Same.-Harmless Ruling on Demurrer.-Where the facts alleged in a
special paragraph of answer are admissible in evidence under the gen-
eral denial, which is also pleaded, the sustaining of a demurrer to the
former is harmless.
Alvord v. Smith, 58
3. Practice.-Demurrer.-A demurrer to the whole of a complaint consist-
ing of several paragraphs should be overruled, if any one of the para-
graphs be sufficient.
Board of Comm'rs, etc., v. Verbarg, 107
4. Uncertainty.-Demurrer.-Practice.-Uncertainty in a pleading which
states sufficient facts can be reached only by a motion to make certain
and not by demurrer.
City of Goshen v. Kern, 468
5. Justice of the Peace.-A complaint before a justice of the peace,
which states facts sufficient to inform the defendant of the nature of the
action and to authorize a judgment which will bar another action for the
same cause, is sufficient.
6. Set-Off-Tort.-A claim arising out of a tort can not be pleaded as a
set-off to an action on account.
Zeigelmueller v. Seamer, 488
POLICE REGULATION.
See CITIES AND TOWNS, 11; CRIMINAL LAW, 68.
POSSE COMITATUS.
See FALSE IMPRISONMENT, 4.
POSSESSION.
See RAILROAD, 2.
PRACTICE.
See CONVEYANCE, 1, CRIMINAL LAW, 7, 26, 27, 33, 48, 72; DECEDENTS'
ESTATES, 8; HIGHWAY, 2 to 5, 7, 9, 11; LIQUOR LAW, 4; NEW TRIAL;
PARTITION, 3, 4, 6; PLEADING, 1 to 4; PROMISSORY NOTE, 7, 14;
REVIEW OF JUDGMENT; SUPREME COURT, 4, 5, 9, 16; TRESPASS, 4.
1. Withdrawal of Appearance Withdraws Pleading.-Where a defendant
who has been served with process withdraws his appearance, he thereby
withdraws his answer also, and should be defaulted; and in such case, on
appeal to the Supreme Court, the record must show the issue and
service of process upon him, or judgment against him will be re-
versed.
Young v. Dickey, 31
2. Same.-Appearance Without Process.-It is within the discretion of the
court, on objection by the plaintiff, to refuse leave to a defendant,
who has appeared without service of process, to withdraw his appear-
3. Demurrer Carried Back.-The sufficiency of an answer is questioned by a
demurrer questioning the sufficiency of a reply thereto.
Unfried v. Heberer, 67
4. Pleading Struck Out.-Bill of Exceptions.-A pleading struck out on
motion must be made part of the record by a bill of exceptions, to
present any question as to such ruling, to the Supreme Court on appeal.
Craig v. Ensey, 140
5. New Trial.-Evidence.—Erroneous Judgment.-Questions arising upon the
admission or exclusion of evidence, and the alleged rendition of judg.
ment for the wrong party, are grounds for a new trial, but are not proper
assignments of error.
Ib.
6. Refusal to Dismiss Action.-A refusal to dismiss an action on account of
the insufficiency of the complaint is not ground for a new trial, but is a
proper assignment of error.
7. Motion for a New Trial.-A motion for a new trial on the ground
of the exclusion of evidence offered must clearly identify such evi-
dence.
Ib.
8. Witness.-Default.-Answer struck out.-Where one of several defend-
ants, who has been subponed as a witness on behalf of the plain-
tiff, refuses to appear and testify on the trial, the court may order
that his answer be struck out, and that he be defaulted.
Nelson v. Neely, 194
9. Same.-Joint Answer.-In such case a joint answer by him and a code-
fendant may be struck out, so far as the former is concerned.
Ib.
10. Effect of Exception to Conclusions of Law.-An exception to the con-
clusions of law admits that the facts have been fully and correctly
found.
Hartman v. Aveline, 344
11. Dismissal of Complaint does not Carry Counter-Claim with it.-The
dismissal of the complaint in an action, on the motion of the plaintiff,
can not, over the objection of the defendant, carry with it a counter-
claim filed by the latter.
Egolf v. Bryant, 365
12. Same.-Bill of Exceptions -A bill of exceptions is not necessary to re-
serve an exception to the dismissal of a counter-claim.
Ib.
13. Same.--Complaint for Partition.-Counter-Claim to Foreclose Mortgage.
-A cross complaint, so-called, for the foreclosure of a mortgage on real
estate, filed by a defendant in an action for the partition of such real es-
tate, is properly a counter-claim.
Ib.
14. Amendment of Answer to which Demurrer was Sustained.— Wairer.—
A demurrer questioning the sufficiency of an answer consisting of a sin-
gle paragraph having been sustained, the defendant, by leave of court,
filed what he termed a second paragraph of answer, under which all
the facts averred in his first answer were admissible in evidence.
Held, that, by so amending, error in sustaining such demurrer was waived,
or rendered harmless.
DeArmond v. Stoneman, 386
15. Reply, Specially Denying Averments of Answer, Admissible under General
Denial. Where, to an affirmative answer, a reply is filed, consisting of
the general denial and a paragraph specially denying each mate-
rial allegation of the answer, the facts averred in the special plea are ad-
missible in evidence under the general denial; and therefore the defend-
ant is not injured by the overruling of a demurrer questioning the suffi-
ciency of the special plea.
Ib.
16. Striking out Pleading.-Error in striking out a paragraph of a pleading
is harmless, where the facts therein alleged are admissible in evidence
under a remaining paragraph.
Noah v. Angle, 425
17. Judgment Non Obstante.-Verdict - Special Findings.-Judgment on the
special findings of a jury, notwithstanding their general verdict, can be
rendered only when the former are inconsistent with the latter.
Ohm v. Yung, 432
18. Venire de Novo.-Verdict.-A venire de novo is only awarded when
the verdict is uncertain, or fails to find upon all the issues, or to assess
damages.
hershman v. Hershman, 451
19. Same. Special Verdict.-Where both a general and special verdict is
found, and the former finds, though only inferentially, upon all the
issues, it is not necessary to the validity of the latter that it find upon
the whole case.
20. Same.—Form of Verdict.-Failure to Instruct Jury.-Where, in such
case, the jury has not been instructed as to the form of their verdict,
the joinder of their general and special verdict does not invalidate
either.
21. Same.-Judgment non Obstante.-Judgment on the special verdict, not-
withstanding the general verdict, can be had only where the former is
repugnant to the latter.
22. Separation of Jury Without Answering Interrogatories.-Venire de
Novo.-New Trial.-A jury to whom certain interrogatories had been sub-
mitted, to be answered in case they found a general verdict, was directed
by the court, with the consent of the parties, that, if they agreed upon a
verdict during the adjournment of court, they might seal it up and sep-
arate until the calling of court, whereupon the jury, having agreed
upon a general verdict during adjournment, sealed it up and separated
without answering the interrogatories. Upon the calling of court such
verdict was returned by them into court, but, upon objection by a party
to receiving said verdict, it was returned to the jury by the court
with instructions to retire and answer the interrogatories, to which such
party objected and excepted. The jury, after consultation, returned into
court the same general verdict, with answers to the interrogatories,
which the court, over the objection and exception of such party, re-
ceived and ordered to be filed, and discharged the jury.
Held, that the action of the court was proper, and that such separation of
the jury was not ground for either a venire de novo or a new trial.
Held, also, that, upon the second consultation of the jury, the whole case was
before them, but that it was not error in the court to refuse to so in-
struct them.
Rush v. Pedigo, 479
23. Motion to Set Aside Default.-A judgment rendered against a defend-
ant by default, on his failure to appear, will not be set aside to allow
proof of a set-off arising out of a tort, though the motion therefor al-
lege a sufficient excuse for the failure to appear.
Zeigelmueller v. Seamer, 488
24. Order of Admitting Evidence.-Judicial Discretion.-It is within the dis-
cretion of the court, in a proper case, to allow a party to introduce
original evidence after the hearing of evidence has closed.
Gaming.-Horse-Racing.-A premium offered by an authorized corporation
or a private partnership to the owner of the horse that shall "make the
best and quickest time," or exhibit a certain rate of speed, in a proposed
trial of the speed of horses, to be had in a proper place, is not a bet or
wager, is not unlawful or against public policy, and may be collected in
an action by the owner of the horse which "makes" such "time" or ex-
hibits such speed.
Alvord v. Smith, 58
See CITIES AND TOWNS, 7; CITY TREASURER, 3; CRIMINAL LAW, 21, 22,
35; GUARDIAN AND WARD, 5; HUSBAND AND WIFE, 5; PROMISSORY
NOTE, 2, 3
See CITY TREASURER, 7, 8, 9; FEES AND SALARIES, 2; GUARDIAN AND
WARD, 4 to 6; NEGLIGENCE, 2; PROMISSORY NOTE, 12, 19 to 21.
See CONTEMPT, 1; DECEDENTS' ESTATES, 4; GUARDIAN AND WARD, 9.
10, 14, 20.
Promissory Note.-Answer of Suretyship, and Extension of Time.Notice of
Suretyship.-Contract.-Where suretyship is not apparent on the face of
the note, and notice thereof to the plaintiff is not averred, an answer by
one of several makers of a promissory note, in an action thereon, al-
leging himself to be merely surety for his co-makers, and that the plain-
tiff had extended the time of payment of such note, pursuant to a valid
contract therefor between himself and such co-makers, is insufficient.
See CHATTEL MORTGAGE, 1; DECEDENTS' ESTATES; MORTGAGE, 11, 19;
PROMISSORY NOTE, 24, 25.
PROCESS.
See COUNTY COMMISSIONERS, 1; HIGHWAY. 8; MORTGAGE, 12; PRACTICE 1, 2.
4; MORTGAGE, 12; PRACTICE, 1, 2.
PROHIBITION, WRIT OF.
See CITIES AND TOWNS, 1, 2.
PROMISSORY NOTE.
See ATTACHMENT, 4; CHATTEL MORTGAGE, 2; NEGLIGENCE, 1; SUPREME
COURT, 17; VENDOR'S LIEN.
1. Reference to Conditions of Another Writing.-Complaint.--Copy-A
promissory note upon which suit was brought, and which was alleged
in the complaint to be due and unpaid, contained a stipulation
that it was subject to certain conditions contained in a written agree-
ment between the parties, bearing the same date as the note.
Held, on demurrer, that such agreement ought to have been made part of the
complaint by copy.
Held, also, the complaint containing no averment concerning such agreement
or its conditions, that it is insufficient,
Titlow v. Hubbard, 6
2. Presumption as to Place of Execution.-Where suit is brought upon
a promissory note in a court of this State, it will be presumed, the
contrary not appearing, that the note was executed in the State.
Clark v. Carey, 105
3 Presumption as to Locality of Bank.—If such note be payable in a bank,
the locality of which is not designated, it will be presumed that such
bank is located in this State.
Answer.-Accommodation Endorser.—An answer, in such action,
by an endorser in blank, that he was merely an accommodation endorser
and not a maker of the note, is insufficient.
Ib.
5. Note Executed by one Partner, in Name of Co-partner.Judgment Non
Obstante.-Interrogatories.-Payment.—In an action against A., B. and
C., as makers, on a promissory note purporting on its face to have been
executed by A., in the individual names of A., B. and C., wherein B.
and C. answered by a verified denial, the jury, with their general ver-
dict against A., and in favor of B. and C., found specially, in answer to
interrogatories, that A., B., C. and D. were partners at the time the note
was executed; that D. was a resident of another State and unknown to
the payee as a partner; that the note in suit was executed for personal
property sold, and money loaned, by the payee to A., for the partner-
ship, in the regular course of the partnership business; and that such
property and money had passed into the partnership fund.
Held, that. as to B. and C., the answers to the interrogatories are inconsistent
with and control the general verdict, and that judgment should be ren-
dered against them.
Held, also, there being no plea of payment, that it was not necessary, to war-
rant such a judgment, that the jury should have found specially that the
note was unpaid.
Nelson v. Neely, 194
6. Payable in Bank.-Foreclosure of Mortgage.-Misjoinder of Actions or
Parties.-Supreme Court -Complaint by an assignee. against the maker
and assignor, upon a promissory note payable in bank, and to foreclose
a mortgage executed by the assignor, to the assignee, to secure payment
of the note.
Held, that there was no misjoinder of parties defendants, nor of causes of
action.
Held, also, that the Supreme Court will not reverse a judgment for misjoin-
der of causes of action.
Pate v. First Nat'l Bank, etc., 254
7. Non Est Factum.- Open and Close.-Where the execution of a promis-
sory note in suit is denied under oath, the burden of proof is on the
plaintiff, and he has the right to the open and close.
Ib.
8. Same.-Putting Note in Evidence.-The note in such case should be ad-
mitted in evidence on behalf of the plaintiff, upon his introducing any
evidence, however slight, of its execution; and the defendant has no
right to introduce evidence denying its execution, until the plaintiff has
concluded his evidence in chief.
9. Same.-Rebuttal.—The plaintiff in such case has the right to the close,
upon the conclusion of the defendant's evidence, though his rebutting
evidence may include a portion of his evidence already given in chief. Ib.
10. Same.—Rebutting Evidence.-The defendant in such case can not com-
plain of the introduction, by the plaintiff, of new matter, in rebuttal,
where he himself is, in turn, allowed to rebut such new matter. Ib.
11. Putting Mortgage in Evidence.-In an action by an assignee against
the maker and assignor, on a promissory note, and to foreclose a mort-
gage executed by the assignor, to secure payment of the note, the plain-
tiff has a right to introduce the mortgage in evidence, though the mort-
gagor has made default, and the maker only, under a denial of the exe-
cution of the note, is contesting the action.
Ib.
12. Execution of Note by One, in Name of Another.-Instruction-In an action
against A., on a promissory note executed by B. in the name of himself
and A., in renewal of a prior joint note executed by them, the court in-
structed the jury, that if, from the evidence, they believed that A. and
B. had been carrying the note alleged to have been renewed, and that A.
had informed the payee's agent, that, if it became necessary to renew
|