land sold at sheriff's sale, against the judgment defendant, who was the
owner of the land, the complaint alleged, that, at the request and for the
use of the defendant, the plaintiff, a stranger to the judgment, had bid, and
paid to the sheriff, a certain sum of money, for the land, and also taxes
thereon, but that, on account of a misdescription of the land, made by
the sheriff in levying on the land and advertising it for sale, the sale was
void.
Held, on demurrer, that the complaint is sufficient to authorize a recovery of
the money so paid.
Held, also, that the sheriff was not a necessary party defendant.
SHORT-HAND REPORTER.
See CRIMINAL LAW, 29 to 32.
SPECIAL FINDING.
See GUARDIAN AND WARD, 19; PRACTICE, 10, 17 to 21; SUPREME
COURT, 12.
SPECIAL VERDICT.
See PRACTICE, 19, 20.
SPECIFIC PERFORMANCE.
Complaint Against Widow and Heirs, to Enforce Performance of Ancestor's
Contract.-Conveyance.-Mortgage.-Tender.-Demurrer Carried Back.
-A and B. executed a written contract, wherein the former, for a spec-
ified sum of money, agreed to convey a certain tract of land to the lat-
ter, by a "a good and sufficient deed;" and B. agreed therein to procure
certain moneys and pay the same to A. as a part of the purchase-money,
and to execute to A. a mortgage on a specified portion of such land, to
secure the payment of the residue of such purchase-money; and all
of such stipulations were to be performed on a day in the future, named
in the contract B. having died subsequent to such day for perform-
ance, A. brought an action against the widow and heirs of B., to enforce
specific performance of such contract, alleging in his complaint, that, on
such day, he had executed and tendered to B. a "good and sufficient
deed" for such land, and had demanded performance by B. of his stip-
ulations, which the latter refused; that, subsequent to B.'s death, he had
tendered the same deed to the defendants, and demanded of them the
performance of B.'s stipulations, which they refused; that the same deed
was brought into court for the defendants; that such land had remained
in the possession of B. and the defendants ever since the execution, and
pursuant to the terms, of such contract; and that such contract was
executed as a settlement of an action then pending between A. and B.,
concerning the title to such land.
Held, on demurrer to the defendant's answer, that such tender to the defend-
ants was insufficient, and that the demurrer should be carried back and
sustained to the complaint.
Sowle v. Holdridge, 213
See CITY TREASURER, 4 to 6; GUARDIAN AND WARD, 18; HUSBAND AND
WIFE, 1; JUDGMENT, 1; LANDLORD AND TENANT, 2 TOWNSHIP
TRUSTEE, 2 to 4.
STATUTE OF LIMITATIONS.
See REVIEW OF JUDGMENT.
1. Action to set aside Sheriff's Sale.- Fraudulent Conveyance.-Limitation
of Six Years. An action to set aside, as fraudulent, a sheriff's sale of
land and a subsequent conveyance of the same by the execution defend-
ant to the purchaser at such sheriff's sale, is barred by the statute of lim-
itations of six years.
Sidener v. Galbraith, 89
2. Continuation of Action which has Failed.-An action by a purchaser of
land at a sheriff's sale, against a purchaser of the same land at a previous
sheriff's sale, to set aside the first sale as fraudulent, having been finally
determined against the plaintiff on account of a defect in his title, he
subsequently purchased the same land at a third sheriff''s sale, and, with-
in five years from the determination, but more than six years from the
commencement, of the first action, he commenced a suit against the same
defendant and the judgment defendant, to set aside, as fraudulent, such
first sheriff's sale and also a conveyance of the same land, made by such
judgment defendant to his co-defendant after the commencement but be-
fore the determination of the first action.
Held, that the second action was not a continuation of the first action, within
the meaning of section 218 of the code, and that an answer of the statute
of limitations of six years is sufficient.
Ib.
3. Legal Disabilities.- When Pleaded.-Demurrer.-Where a complaint
shows upon its face that the action is barred by the statute of limitations,
and also shows that the plaintiff is under no legal disability, it is insuffi-
cient on demurrer; but, where it does not affirmatively show that
the plaintiff is under legal disability, such fact must be made to appear
by answer.
Harlen v. Watson, 143
4. Decedents' Estates.-Claim.-Contract.-Infant.-A claim
against the estate of a decedent, for ten years' continuous services, com-
pleted two years previous to the filing of the claim, rendered for the de-
cedent, by the claimant, under a promise of compensation fixing no
specified amount, the first half of which term of service was during the
infancy of the claimant.
Held, that the claim was not barred by the statute.
Wright v. Miller, 220
5. Action on Account.—Decedents' Estates.—In an action against a decedent's
estate, upon an open account, the administrator answered, alleging that
none of the causes of action had accrued within six years prior to either
the death of the decedent or the filing of the complaint.
Held, on demurrer, that the answer is sufficient.
See GUARDIAN AND WARD, 21; SUPREME COURT, 13, 14.
STREETS, ALLEYS AND SIDEWALKS.
See CITIES AND TOWNS, 1 to 8.
SUBSCRIPTION.
See PROMISSORY NOTE, 18.
SUPERSEDEAS.
See SUPREME COURT, 13, 14.
SUPERVISOR.
See HIGHWAY, 1.
SUPREME COURT.
See BILL OF EXCEPTIONS, 2; CRIMINAL LAW, 7, 17, 21, 22, 31, 48, 55, 59;
DECEDENTS' ESTATES, 4; HIGHWAY, 3; INSANE PERSON, 1; JUDG-
MENT, 5; LIQUOR LAW, 1, 4; NEW TRIAL, 3, 5, 9; PARTITION, 5, 6;
PRACTICE, 1, 4; PROMISSORY NOTE, 6, 14.
1. Bill of Exceptions.-Evidence.-Instructions.-The Supreme Court, on
appeal, will not consider the evidence nor the instructions to the jury,
unless it affirmatively appear by the bill of exceptions that it con-
tains all the evidence.
May v. Pavey, 4
2. Misjoinder of Actions.-The Supreme Court, on appeal, will not reverse a
judgment on the ground of a misjoinder of causes of action in the
complaint.
Coan v. Grimes, 21
3. Improper Amendment by nunc pro tunc Entry.—Certiorari.—Where, up-
on the whole record, except that objected to, a judgment appealed from
appears to be right, the Supreme court will affirm the judgment, though
an improper amendment of the record be made by the court below, by a
nunc pro tunc entry, over the objection of the party appealing.
Scarry v. Eldridge, 44
4. Newly-Discovered Evidence.-New Trial.-Where the evidence given on
the trial of a cause is not in the record, on appeal to the Supreme Court,
no question is presented as to the overruling of a motion for a new trial,
based upon the alleged ground of newly-discovered evidence.
Jackson v. Fowler, 85
5. Motion to Strike Out Surplusage.-The Supreme Court, on appeal, will
not reverse a judgment for mere error in overruling a motion to strike
surplusage out of a pleading.
Randles v. Randles, 93
6. Evidence. Instructions.-Assignment of Error.-Error in admitting or ex-
cluding evidence, and in giving or refusing instructions to a jury, is cause
for a new trial, and can not properly be assigned as error, in the Supreme
Court.
Vandever v. Garshwiler, 185
7. Motion in Arrest.-Record -No question upon the ruling on a motion
in arrest of judgment can be presented to the Supreme Court, where the
record does not contain a motion therefor, assigning reasons.
Ib.
8. Weight of Evidence.-The Supreme Court, on appeal, will not disturb
the verdict of a jury upon the mere weight of evidence.
9. Brief.- Waiver of Error Assigned.-The failure of counsel to discuss, in
his brief, errors assigned on behalf of the party for whom he appears,
is deemed by the Supreme Court to be a waiver thereof.
10. Notice of Appeal from Judgment for one of several Co-Parties.- Where,
in an action against several defendants, judgment, on separate demurrer
to the complaint, is rendered in favor of one defendant, and, on trial,
against the others, notice to the latter of an appeal by the plaintiff
to the Supreme Court, from such judgment on demurrer, is not neces-
Wilson v. Stewart, 294
11. Weight of Evidence -The Supreme Court will not disturb a finding on
the mere weight of evidence.
Tucker v. Gardiner, 299
12. Assignment of Error.-Special Finding.-Where an exception has been
duly taken to the conclusions of law drawn by a court from its special
finding of the facts in a cause, an assignment of error on appeal to the
Supreme Court, which in legal effect, though informally, questions the
correctness of such conclusions of law, is sufficient.
13. Appeal — Bond.-Stay of Execution.—Supersedeas.—An appeal will lio
to the Supreme Court without filing an appeal bond, but such appeal
will not stay execution.
Ruschaupt v. Carpenter, 359
14. Requiring New Bond, on Insolvency of Surety.-Where the security on
the bond given on appeal to the Supreme Court becomes worthless, that
court may, on proper evidence of that fact, order a new bond to be
filed within a reasonable time, and that, in default thereof, execution
may issue.
Ib.
15. Weight of Evidence.-The Supreme Court, on appeal, will not disturb a
verdict on the mere weight of evidence.
Ib.
16. Trial on Complaint Containing an Insufficient Paragraph.-Verdict.—
Record. Where a demurrer has been overruled to an insufficient para-
graph of a complaint, an exception reserved, and, upon trial, a general
verdict found for the plaintiff, the Supreme Court, on appeal, will reverse
a judgment upon the verdict, unless it appear by the record that trial
was had, and such verdict found, upon some other and sufficient para-
graph of the complaint. The Evansville, etc., Co. v. Wildman, 370
17. Co-Parties.-Notice of Appeal.- Waiver.-Foreclosure of Mortgage.—The
payee of several promissory notes endorsed the note first maturing to
A., the note next maturing to B., and retained those last maturing him-
self; A. brought suit against the payee and mortgagors for foreclosure;
B. and the payee then jointly sued A. and the mortgagors for fore-
closure; afterward, by order of court, the two causes were consoli-
dated into one action, and the several statements of the causes of action
in the respective complaints were ordered to "stand as the complaint
in the consolidated action," and, without forming any issue, the mortgagors
were defaulted, personal judgments on the notes rendered against
them, and foreclosure decreed, giving priority to A., B. and the payee,
in the order named; subsequently B. and the payee filed a cross com-
plaint against A. only, for foreclosure of the same mortgage, asking
priority over A., on the ground, that, for a good consideration, he had
extended the time of payment of the note held by him; on the motion
of B. and the payee, the original judgment was vacated, without any
plea by A. other than a demurrer to such cross complaint, and without
any notice to or appearance by the mortgagors, and the various actions
were again consolidated, personal judgments again rendered on the
notes, against the mortgagors, and foreclosure decreed, giving prior-
ity to B., the payee and A., in the order named.
Held, on appeal by A. to the Supreme Court, that the mortgagors were not
co-parties with him, within the meaning of section 551 of the practice act.
Held, also, that, after the submission of such cause by agreement of parties,
and after notice to the appellees that the cause had been distributed
for decision, a motion by them to dismiss the appeal for want of notice
thereof to the mortgagors should be overruled.
Peoples Savings Bank, etc., v. Finney, 460
18. Affidavit to Set Aside Judgment.—Bill of Exceptions.-An affidavit, sup-
porting a motion to set aside a judgment, forms no part of the record
of an appeal to the Supreme Court, unless embodied in a bill of ex-
ceptions.
Patton v. Camplin, 512
SURPLUSAGE.
See SUPREME COURT, 5.
1. Lands Held by Indians.-Mandate to Refund Illegal Taxes.- County Com-
missioners. In an action by the State, on the relation of one claiming
to be an Indian of a certain tribe holding lands reserved to them in
this State pursuant to a treaty with the United States, or to compel
a board of county commissioners by mandate to refund certain al-
leged illegal taxes assessed against such lands and collected from such
Indians, the complaint failed to allege that such lands were reserved to
such Indians, as a tribe or band, and not individually.
Held, on demurrer, that the complaint is insufficient.
Held, also, that, by section 10 of the act of December 21st, 1872, in relation
to the assessment of taxes, 1 R. S. 1876, p. 72. lands in this State, reserved
to or for any individual under any treaty between an Indian tribe and
the United States, are taxable from the date of confirmation of such
treaty.
The State, ex rel., etc., v. The Board, etc., 497
2. Same.-Application to Commissioners to Refund.-Appeal.-Remedy. —
Where an application has been made to and refused by a board of commis-
sioners under the provisions of the act of March 2d, 1853, 1 G. & H. 110,
for the refunding of taxes illegally assessed and collected, the remedy
of the applicant is by appeal thence to the circuit court and not by
mandate.
Ib.
3. Same.-Judicial Act.-Ministerial Act.-The action of a board of com-
missioners upon such an application is a judicial, and not a ministerial
act.
See HIGHWAY, 2; MORTGAGE, 13; SPECIFIC PERFORMANCE.
"TICKET SCALPER."
See CRIMINAL LAW, 68 to 70.
See PLEADING, 6.
TOWNSHIP TRUSTEE.
See HIGHWAY, 1.
1. Eligibility.-Alien.-A voter under the constitution of this State, though
not a citizen of the United States, is eligible to the office of township
McCarthy v. Froelke, 507
Construction of Statute. Township Elections. The act of
March 12th, 1877,"limiting the eligibility to the office of township
trustee," Acts 1877, Spec. Sess., p. 79, is not in conflict with the act of
March 3d, 1877, providing "for township elections," Acts 1877, Reg.
Sess., p. 58; and both acts should be construed as though the former act
were an additional section of the latter.
Jeffries v. Rowe, 592
3. Same. Contested Election.-A township trustee who had held the office
of township trustee for two consecutive terms immediately preceding
the first Monday of April, 1878, was not eligible to re-election on that
day, though his last term had not continued for the two years for which
he had been elected.
Ib.
4. Same. The term "hereafter," as used in said act of March 12th, 1877,
refers to and means the time after the taking effect of such act. Ib.
See CRIMINAL LAW, 6, 51 to 53; FALSE IMPRISONMENT; HIGHWAY;
PLEADING, 6.
1. Answer.-Husband and Wife.—Principal and Agent.—Attachment Suit be-
fore Justice of the Peace of Foreign State.-Law of Foreign State.—Juris-
diction. In an action for damages for the unlawful taking and conversion,
in this State, of a chattel, the defendant answered, alleging, that, in the ab-
sence of the plaintiff, who had absconded he had taken possession of the
chattel in this State, at the request of the plaintiff's wife, and that, while it
was in his possession, in another State, the same was attached and sold
in an action instituted by the defendant and other attaching creditors,
against the plaintiff, before a justice of the peace of such State, a copy
of which proceedings was made part of the answer.
Held, on demurrer, that the statute of the foreign State, authorizing suits in
attachment, before a justice of the peace, should have been made part
of the answer, that the authority of the wife to so deliver such chattel
to him should have been averred, and that the answer is insufficient.
Baker v. Flint, 137
2. Evidence.-Damages.-Opinion of Witness.-Watercourse. The damages
to be recovered for an alleged wrongful obstruction of a watercourse
|