« ForrigeFortsett »
Hickey v. Railroad Co., 14 Allen, 429; Willis 5. Where such list appears in the records of v. Railroad Co., 31 N. Y. 670; Smotherman the board of commissioners, parol evidence that v. Railroad Co., 29 Mo. App. 265. But we is inadmissible.
it was prepared without the authority of the board do not decide whether these decisions de 6. In a suit to enjoin the collection of a tax, clare the law correctly or not. It is suffi- the reading in evidence of the tax duplicate, showcient for our purpose and for this case to af-ing that the plaintiff has not paid all his taxes, is
not reversible error. firm that a passenger who remains on the platform of a car at the rear end of a long Appeal from circuit court, Dearborn countrain of freight cars, after warning to leave ty; WILLIAM H. BAINBRIDGE, Judge. it, does voluntarily occupy a place of danger. George E. Downey, for appellant. J. K. We confine our decision to the case of one Thompson and McMullen & Johnson, for apriding on a freight train, since that is all the pellees. case presented by the record requires. There is, it is our duty to say, a difference between COFFEY, J. This was an action instituted freight trains and regular passenger trains. by the appellant against the appellee, as treasPassengers assume the risks incident to the urer, in the Dearborn circuit court, to enjoin means of transportation they adopt, and one the collection of a tax voted by the legal votwho takes passage on a freight train, al- ers of Center township, in Dearborn county, though it has a caboose attached for the trans- to aid the construction of a railroad. In portation of passengers, must take notice of the original complaint the appellant, after the character of the train, and use such or- averring the existence of the tax upon the dinary care to avoid injury as the nature of tax duplicate of the county, alleges in four the mode of transportation renders prudent. different specifications the reasons for the Woolery v. Railroad Co., 107 Ind. 381, 8 N. illegality of such tax as follows: First. E. Rep. 226; Wallace v. Railroad Co., 98 N. That said pretended election, so held in said C. 494, 4 S. E. Rep. 503; Harris v. Railroad Center township, was illegal and void, beCo., 89 Mo. 233, 1 S. W. Rep. 325; Murch v. cause the notices thereof were not posted unRailroad Co., 29 N. H.9; Railroad Co. v. Fay, til the 11th day of November, 1886, when 16 Ill. 558. One of the risks which ordinary the election was ordered by the board of prudence requires a passenger on the caboose county commissioners to be held, and was of a freight train to guard against is that held, on the 23d day of November, 1886; the arising from the sudden jerk of the train on statutes of the state of Indiana in.force at starting, resulting from the taking up of the that time requiring that said hand-bills shall slack between the cars. This is a matter of be posted by the sheriff of the county three common knowledge of wliich an adult has no weeks prior to the day fixed for taking the right to be ignorant, and with this knowledge vote of the township named in said petition. he has no right to put himself in a position Second. The said board of county commiswhere it is probable that he will be thrown sioners did not, at their regular June session from the car when the train is put in motion. following said pretended election, or at any In this instance, the plaintiff, having remained other time, make any order granting the in such a position, heedless of warning and prayer of said petition above named, nor did in disobedience of instructions, has no cause iney in any other way, directly or indirectly, of action. In assuming that upon the hypo- grant the said petition. Third. The said thetical case stated in the instruction he might board of county commissioners did not, at recover, notwithstanding his own wrong, a their regular June session following said prefatal error was committed. Judgment re-tended election, or at any other time, make versed
any order levying any special tax for the pur(120 Ind. 528)
pose of making such appropriation to said HILL 0. PROBST, County Treasurer, et al. is required by the statutes of the state in
Louisville, Cincinnati & Dayton Railroad, as (Supreme Court of Indiana. Nov. 1, 1889.)
such cases made and provided, nor did said MUNICIPAL AID TAX-INJUNCTION.
board at any time order said assessment of 20 1. Where there is no material difference be-cents on the $100 in valuation of the taxable tween the specifications of cause for an injunction stated in two separate paragraphs of a coinplaint, property in Center township to be placed on the sustaining of a demurrer to one paragraph is said tax duplicate for collection; but said ernot ground for an assignment of error, when a de- roneous and illegal assessment was so placed murrer to the other has been overruled.
2. Where several specifications of cause for in- on said tax duplicate without the proper orjunction are assigned in a complaint, each specifi. der of the board of county commissioners, cation is considered a separate paragraph, and one and without authority of law. Fourth. specification cannot aid another.
Said pretended special tax is improperly and 3. In a complaint seeking to enjoin the collection of a railroad aid tax, a specification alleging illegally placed on said duplicate, because at failure to post notices of the election to vote upon the time it was so placed thereon the Louisthe tax, without alleging that the board of com- ville, Cincinnati & Dayton Railroad was not, missioners did not levy the tax, is demurrable. 4. Where the proceedings of the county com
and is not now, permanently located in said missioners do not show any formal order granting Center township. The court sustained a dethe prayer of a petition for a railroad aid tax, or murrer to said first, third, and fourth spec. levying the tax, the insertion of such tax in the list ifications, and the appellant excepted. Apof taxes assessed against a township which has voted for such petition is sufficient to show the pellant thereupon, with leave of the court, levy of the tax.
filed a second paragraph of complaint, in
which he set out four specifications which he that the court erred in sustaining the demurclaims rendered the tax sought to be en- rer to the first and second specifications of joined illegal, as follows: First. That said cause in the additional second paragraph of pretended election so held in Center town- complaint; third, that the court erred in ship is illegal and void, because the notices overruling the demurrer to the second parathereof were not posted until the 11th day graph of the answer; fourth, that the court of November, 1886, when the election was erred in overruling the motion for a new ordered by the board of county commission- trial. ers to be held, and was hell, on the 23d day There seems to be no material difference of November, 1886; the statutes of the state in the specifications of cause in the first and of Indiana in force at that time requiring second paragraphs of the complaint. As the that said hand-bills shall be posted by the court overruled the demurrer to the second sheriff of the county three weeks prior to the specification in the original complaint, and day fixed for taking the vote of the township also overruled it to the third and fourth specinamed in said petition; and no notices were fications in the second paragraph, there is no posted by any one acting for the sheriff, and available error in sustaining the dem urrer to by his authority, three weeks before said elec- the third and fourth specifications in the tion, of which any return was made, and, in original complaint. If the court erred in its fact, no notices were posted. Second. The rulings as to these specifications, it corrected said board of county commissioners of Dear-such error when ruling on the demurrer to born county did not at their regular session the same specifications in the additional or following said pretended election, or at any second paragraph. We need not, therefore, other time, make any order granting the give the assignment of error calling in quesprayer of said petition above mentioned, nor tion this ruling any further consideration. did they in any other way, directly or inilj. The court, however, sustained the demurrectly, grant the said petition. Third. The rer to first specification in both the origisaid board of county commissioners did not nal and additional complaint, and it becomes at their regular session following suid pre- necessary to inquire into the correctness of tended election, or at any other time, make that ruling. The practice of assigning sevany order levying any special tax for the eral specifications of cause for an injunction purpose of making such appropriation to in cases like this has been approved by this said Louisville, Cincinnati & Dayton Rail- court, as having the merit of convenience road, as required by the statute of the state and economy of time and expense, as it saves in such cases made and provided; nor did the repetition of the whole statement of the said board at any time order said assessment levying of the tax with each specification of of 20 cents, on the $100 in valuation of the the objection thereto. The defendant in such taxable property in Center township to be case can either demur or answer as to each placed on said tax duplicate for collection; but specification, and each of such specifications, said erroneous and illegal assessment was so when demurred to, is considered as a sepplaced on said tax duplicate without any or- arate paragraph of complaint, and is considder of the board of county commissioners, ered in connection with the allegations preand without authority of law. Fourth. Said ceding and following it in the complaint. It pretended special tax is improperly and ille- is evident, however, that the specifications, gally placed on said duplicate, because at when so attacked cannot aid each other, but the time it was so placed thereon the Louis- they must be considered separately. Boden ville, Cincinnati & Dayton Railroad was not, v. Diil, 58 Ind. 273; Mustard v. Hoppess, 69 and is not now, permanently located in said Ind. 324; Hilton v. Mason, 92 Ind. 157. Center township. The court sustained a de Reading the complaint in the light of this murrer to the first and second specifications rule, and omitting all the specifications except of the second paragraph of the complaint, the one now under consideration, there is no and overruled it is to the third and fourth, allegation that the board of commissioners and the appellant excepted. The appellee did not levy the tax which the appellant answered in two paragraphs. The first is a seeks to enjoin. The tax is found upon the general denial, and the second avers the as-tax duplicate, and, as public officers are presessment of the tax sought to be enjoined by sumed to do their duty, it must be presumed the board of commissioners of Dearborn to be there lawfully, and in accordance with county, setting out a full transcript of the the prayer of the petition, until the contrary proceeding of the said board in the matter of is shown. It is true that the appellant althe petition for the assessment of a tax in leges in the second paragraph of bis comCenter township to aid in the construction of plaint that the board of commissioners took the Louisville, Cincinnati & Dayton Railroad. no action and made no order about or conA demurrer was overruled to the second par- cerning said appropriation after ordering the agraph of the answer, and an exception taken. election, but the law made it their imperaUpon issues formed there was a trial by the tive duty, at the June terın following the court, resulting in a finding and judgment election, to assess the tax, if a majority of for the appellee. The errors assigned are the votes cast was favorable thereto, and First, that the court erred in sustaining the such general averment as the above is far demurrer to the first, third, and fourth spec- short of an averment that at the June terin ifications of cause in the complaint; second, I following such election they did not levy
such tax. As the tax is found upon the du-l No. 19, page 562, of said county, and more plicate, we must presume therefore, in the especially to the tabulated statement thereon, absence of a specific showing to the contrary, state whether or not the board of county comthat the board of commissioners levied the missioners authorized the placing in said same. In making such levy they necessarily statement of the column headed L., C. & D. passed upon the validity of the election ani. R. R. Tax.' » The court sustained the obthorizing the same, and, however erroneous jection to this question, and the appellant the conclusion at which they arrived may be, then offered to prove by said witness that the it cannot be attacked in a collateral proceed-column in said tabulated statement referred ing like this. Board v. Hall, 70 Ind. 469; to was not placed in said stateinent by order Reynolds v. Faris, 80 Ind. 14; Hilton v. of the board of county commissioners, but Mason, 92 Ind. 157. In our opinion, the was placed there by the auditor himself, of court did not err in sustaining the demurrer his own volition, without any order of the to the first specification in either the first or board of county commissioners concerning second paragraph of the complaint.
the matter, and that the board of county In the transcript of the proceedings of the commissioners never, at their June session, board of commissioners of Dearborn county, 1887, made any order of any kind with referset out in the second paragraph of the appel-ence to said Louisville, Cincinnati & Dayton lee's answer, there does not appear any formal Railroad tax. The tabulated statement reorder granting the prayer of the petition for ferred to in the question is part of the record a railroad tax, or any formal order levying made by the board of commissioners of Dearsuch tax, but in the assessment of the taves born county, and it was not competent for for that year appears the following in the the appellant to contradict, add to, or detract list of townships, viz.:
from it by parol testimony. It was not pruEndowment fund..
$ y posed to prove by the witness that any State tax...
12 change had been made in the statement since County tax..
55 Township tax.
it was passed by the board, and the record
15 Township tuition.
signed. It was wholly immaterial who preSpecial school.
10 pared the tabulated statement, or whether it Road tax...
20 was prepared with or without the authority Road tax, cash.
of the board of commissioners. If they Town tax.. Louisville, Cincinnati & Dayton Railroad
adopted and passed it, it was as effectual as tax
20 if it had been prepared by their order.
The court also, over the objection of appelTotal tax on each $100.....
$1 6372 lant, permitted the appellee to read in eviFollowing this is the following language: dence the tax duplicate, showing that the ap“There being no further business before the pellant had not paid all his taxes. We are board, they now adjourn to meet Saturday, not advised as to the object sought to be atJune 18th, 1887. [Signed] G. A. SWALES. tained by the introduction of this evidence, Attest: JULIUS SEVERIN, A. D. C." It is but we can see no objection to bringing beclaimed by the appellant that this is not suffi- fore the court the tax duplicate upon which cient to show an assessment of the railroad was the tax in controversy, as well as all tax by the board of commissioners of Dear-other taxes assessed against appellant. We born county, but we think otherwise. When are unable to see how the appellant was inconstrued in connection with the petition of jured by this ruling of the court. We find the citizens of Center township to make an no error in the record for which the judgappropriation in aid of the construction of ment of the circuit court should be reversed. the Louisville, Cincinnati & Dayton Rail- Judgment affirmed. road, we think it sufficiently appears that there was a tax of 20 cents on the $100 lev.
(120 Ind. 511) ied in that township for the purpose indi
ROLLET et al. 0. HEIMAN. cated in that petition. The court did not
(Supreme Court of Indiana. Nov. 2, 1889.) err in overruling the demurrer to the second
FRAUDULENT CONVEYANCES-PLEADING. paragraph of the answer. It is claimed that the finding of the circuit as fraudulent a conveyance made by his debtor, an
In a suit by a judgment creditor to set aside court is not supported by the evidence. The allegation that the latter was mentally incapable record of the proceedings had before the of executing, the conveyance will not, though irboard of commissioners, corresponding with relevant, vitiate the complaint. the transcript set out in the second para Appeal from circuit court, Vanderburgh graph of the answer, was read in evidence. county; WILLIAM F. PARROTT, Judge. Under the construction we have placed upon Suit by. Louis Heiman against Joseph Rolthat record, it supported the finding and judg- let, Sophia Rollet, and Henry Nurenbarn, to ment of the court.
set aside a conveyance made by Joseph Rollet On the trial of the cause the appellant pro- and Sophia, his wife, to defendant Nurenpounded to Mr. Severin, a witness who had barn. Judgment for plaintiff. Defendants testified that he was auditor of Dearborn appeal. county at the June session of the board of J. E. Williamson, for appellants. D. B. commissioners in 1887, the following ques- Kumler, G. F. Denby, and Victor Bisch, for tion: “Referring to Commissioner's Record 'appellee.
ELLIOTT, C. J. Heiman, the appellee, is | 62 Ind. 114; Shrock v. Crowl, 83 Ind. 244, the judgment creditor of Joseph Rollet, one Campbell v. Kuhn, 45 Mich. 513, 8 N. W. of the appellants. The facts stated in the sec- Rep. 523; Breckenridge v. Ormsby, 1 J. J. ond paragraph of his complaint are, in sub- Marsh. 236. A pleading, as we have often stance, these: The plaintiff recovered judg- held, is to be judged from its general scope ment against Rollet for $347. The judgment and tenor, and so this complaint must be is unsatisfied, and the debtor has no other judged. Judging it by this established rule, property subject to execution. At the time we cannot allow the isolated averment of of the execution of the promissory note upon Rollet's mental incapacity to control the genwhich the judgment is founded, Rollet owned eral frame and tenor of the pleading. This real estate of the value of $5,500, and he also averment, like those of matters of evidence, owned personal property of the value of $800. must be treated as mere surplusage, and surHe was the owner of this property on the 27th plusage will not vitiate a pleading. Our day of October, 1883, and the note was exe- judgment is that the complaint is to be recuted on the 28th day of April, 1883, and the garded as one to set aside a fraudulent conjudgment on it was recovered on the 4th day veyance accepted by the grantee with knowl. of February, 1884. Rollet, by reason of the edge of the fraudulent purpose, and as a mere excessive use of intoxicating liquors, was in- volunteer who has paid no consideration. capacitated from engaging in ordinary busi- Judgment affirmed. ness pursuits. Nurenbarn is the brother-inlaw of Rollet, and on the 27th day of Octo
(121 Ind. 133) ber, 1883, induced the latter to convey to him LANG v. BOARD OF COMMISSIONERS PERRY all of his property. A deed was executed by
COUNTY. Rollet and wife, conveying to Nurenbarn thie real estate then owned by Rollet. The con
(Supreme Court of Indiana. Nov. 5, 1889.) sideration for the conveyance was the prom-County PHYSICIAN-Post MORTEM EXAMINATIONS. ised payment of $3,900, and the assumption ployed under contract by a county to treat its poor
It is no part of the duty of a physician emby the grantee of two mortgages on the prop- to make a post mortem examination of the body of erty. The property was worth at least $3,000 a dead pauper, and when he does so at the request more than the price fixed. The consideration of the coroner he is entitled to compensation. expressed in the deed was not paid by the
Appeal from circuit court, Perry county; grantee. The alleged payment of $3,900 GEORGE L. REINHARD, Judge. was, in fact, not made, but was pretended to
E. E. Drumb, for appellant. W.A. Land, be made by the release of debts due from
for appellee. Rollet to Nurenbarn, which debts were mere fictions, having no existence. Imme OLDS, J. The appellant filed his claim bediately after the execution of the deed Nu-fore the board of commissioners of Perry renbarn made a gift of a great part of the county for services as a physician in making personal property to Sophia Rollet, the wife a post mortem examination of the dead body of the judginent debtor. Toe conveyance of one Joseph Warren, at the request, and by was made with the intent to cheat, hinder, the direction, of the coroner of said county. and delay the creditors of Rollet, and it was The claim was disallowed by the board, and accepted by the grantee, with full knowledge the appellant appealed to the circuit court. of all the facts.
In the circuit court the cause was submitted The complaint is not well drawn. It con- to the court for trial without the intervention tains much that is mere matter of evidence, of a jury, which trial resulted in a finding and such matter obscures and weakens aand judgment for the defendant. The plainpleading. We attach no importance what- tiff filed a motion for new trial. The court ever to the argument of the counsel that the overruled the motion, and an exception was complaint describes many badges of fraud, taken to the ruling. The appellant appealed and is therefore good; for badges of fraud are from the judgment, and assigns the ruling simply matters of evidence, and in pleading of the court on the motion for new trial as it is the facts, and not the evidence, that must error. be alleged. The complaint contains matters The question presented is as to the suffiwhich are not proper in a complaint by a ciency of the evidence to support the verdict. judgment creditor to set aside a fraudulent The uncontroverted evidence shows that conveyance, and these matters so confuse the Joseph Warren came to his death by casualty, pleading as to make it somewhat difficult to and was found dead in a cistern. The coroner determine its character. If the complaint was notified and held an inquest, and resought simply to set aside the conveyance be- quired the appellant, Lang, who is a physicause of the mental incapacity of Rollet, we cian, to make a post mortem examination, should be strongly inclined to hold that no and that he made the post mortem examinacause of action was shown to exist in the tion as required, and testified as a witness judgment creditor. We believe the law to before the coroner as to the facts revealed be against the right of a judgment creditor by such examination, and the cause of the to set aside such a conveyance as fraudulent, death of Warren, and that his services were for we think that the deed of insane persons of some value. The witnesses testifying as can only be avoided by the grantor or his to the value of the services placed them privies in blood or estate. Price v. Jennings, 'at from $5 to $25. The testimony also
showed that at the time the appellant made OLDS, J. The appellant filed his claint such examination he was the county physi-against the appellee on five causes of action. cian, employed by the county to treat the The first, second, and fifth were paid before poor of the county who were inmates of the the cause came on for trial, and trial was had asylum. The claim of the appellant for mak-on the third and fourth causes. The third ing such post mortem examination was prop- cause of action is upon a promissory note erly certified by the coroner to the board of dated October 14, 1869, executed by the decommissioners. There was no evidence given cellent and Godlove 0. Behn, payable as folin the case tending to controvert any of the lows: “Sixty days after date we promise to foregoing facts, and on the foregoing facts, pay to the order of John C. Brockenborough, which were proven and not controverted, the cash'r at the National State Bank of La Fayappellant was entitled to recover for the val- ette." The note was for $250, with 10 per ue of his services. The fact that he was at cent. interest after maturity, and a condithe time employed by the county to treat the tional promise to pay attorney's fees if suit poor of the asylum could not prevent his re- be instituted, signed as follows, by Behm covery for making a post mortem examina- first and then by the decedent: “GODLOVE tion of the body of one of the dead paupers O. BEHM. GODLOVE S. ORTH, Security.' who had come to his death by casualty, when The fourth cause of action was on an account required to do so by the coroner. The mak- for one-fourth of the sum of money, with ining of the post mortem examination was no terest, laid out and expended by appellant in part of his duty under a contract with the reference to an investment by the decedent, county to treat the poor when sick. The appellant, and two others in Venezuela cercounty is liable for the services of a physician tificates. There was a trial, resulting in a in making a post mortem examination, when verdict and judgment for the appellant on such services are required by the coroner of the the fourth cause of action, the account, and county. Stevens v. Board, etc., 46 Ind. 542; against the appellant on the third cause of Jameson v. Board, etc., 64 Ind. 524; Board, action, the note. etc., v. Jameson, 86 Ind. 154; Board, etc., v. There are several errors assigned and disBond, 88 Ind. 102; Board, etc., v. Gillum, 92 cussed. The first error discussed is the overInd. 511; Board, etc., v. Wertz, 112 Ind. 268, ruling of an objection to a question pro13 N. E. Rep. 874.
pounded to John C. Brockenborough. It The court erred in overruling the motion was contended by appellant that the note in for new trial.
question was discounted by the National Judgment reversed, at the costs of the ap- State Bank, of which said witness was cashpellee, with instructions to the court below ier and payee named in the note, and then to sustain the motion for new trial.
taken up by the appellant from the bank at
the request of the decedent, and held by the (121 Ind. 10)
appellant, and there was some evidence inMARKS V. ORTH.
troduced tending to show that state of facts; (Supreme Court of Indiana. Nov. 6, 1889.) when the appellee put the witness John C. EVIDENCE-ENTRIES—UNAUTHENTICATED PUBLIC Brockenborough on the witness stand, and DOCUMENT.
proved by hin the method of doing business 1. In an action on a note alleged to have been by the bank, and that an entry was made of taken up by plaintiff after it had been discounted by a bank, the testimony of the cashier that the all notes discounted in a certain book on the bănk kept a record of all notes discounted, and that day the note was discounted, and then asked no entry was made of the discount in question, was the witness the following question: “State not evidence of an entry, but evidence that no en- whether or not there was an entry made uptry was made, and was therefore admissible to show that the note had not been discounted.
on that day in that book in reference to the 2. A witness was asked: "Are you stating discounting of the note that I now place in this from your own knowledge?” He answered: your hands;" to which question the appel“I am stating it from my own knowledge, having lant objected, because the evidence sought refreshed my memory.” He was then asked: "You state part of it from memory and part from to be elicited would not show that that note some other source?" He answered: “Yes.” Held, was not discounted; that it is secondary evithat there was no error in refusing to strike out dence. It is not contended but the note the testimony, it sufficiently appearing that the witness was testifying from his own knowledge, placed in the hands of the witness was the after having refreshed his memory.
note sued upon, and that the date referred 3. A document purporting to be a printed re- to was the date it was claimed to have been port of a congressional subcommittee, which is discounted. It is contended the evidence is not authenticated, does not purport to be a part of the authenticated journal, is not identified by it, not competent, on the theory that entries of and is not a record required to be kept or a publi-third persons called to testify are not admiscation required to be made, is not a document en-sible until it is shown in advance that the titled to admission in evidence.
enterer has no memory of the fact underlyAppeal from_circuit court, Tippecanoe ing the entry. It became an important fact county; DAVID P. VINTON, Judge.
in this case to determine whether the note Action by Jacob F. Marks against Mary had been discounted by the bank, by which A. Orth, executrix of Godlove S. Orth, de- the bank became the owner, and then passed ceased. Plaintiff appeals.
the same to the appellant. The note was not Langdon & Gaylord, for appellant. S.P.indorsed, and to controvert the fact that the Baird, for appellee.
note had ever been discounted by the bank it