tained by B, upon the assignment of the part in suit, has been
fully paid, the fact of payment being admitted by demurrer. Did
the complaint state facts sufficient?
Held, that as the complaint contained the allegation of payment of
the part of the debt held by B, B was not a necessary party to
the action by C against D, B not being a party in interest.
Held, also, that the allegation of payment of the part of the indebted-
ness held by B after the assignment to C was essential to C's re-
covery and the protection of D against a multiplicity of suits.
Insurance Co. of North America v. Martin, 317
2. Necessary Party. Variance in Description.-Insurance Policy.-
Complaint. Mortgage. In such case the complaint and mortgage
described the property as the s. w. qr. of section 23, tp. 31, range
8, while in the policy it was described as s. w. qr. of section 23,
range 31, tp. 8.
Held, that upon the theory (arising upon the variance in description)
that the complaint alleges a mortgage security upon one property
and an insurance upon another, which other is presumed to have
been destroyed as the property of A, A (the mortgagor and ven-
dor) was a necessary party to the action, and not having been
made a party, the complaint was fatally defective.
See CONVEYANCE, 6, 8; DECEDENTS' ESTATES, 1, 2; ESTOPPEL, 1; SU-
PREME COURT PRACTICE, 2, 3; WILL, 12.
1. Tenants in Common.-Valuable Improvements. - When Entitled to
Compensation. Where one tenant in common makes necessary,
valuable and lasting improvements, he is entitled to compensa-
tion therefor, on partition.
2. Amendment of Pleading.-Commissioners' Report.-A complaint in
partition may be amended so as to conform with the report of the
commissioners.
Bower v. Bowen, 31
3. Title. The pleadings in a suit for partition may be so framed as
to raise and settle questions of title, but where they are not, and
only the matter of partition is adjudicated, the title is held as
before.
Stephenson v. Boody, 60
PARTNERSHIP.
See ACTION, 4, 5.
Legal Rights. Contractual Rights. - Relief. - A partner who is being
defrauded has access to the courts for relief, notwithstanding con-
tractual stipulations.
Adams v. Shewalter, 178
PARTY IN INTEREST.
See APPEAL, 6.
PAYMENT.
See PARTIES, 1.
PERPETUITIES.
See WILL, 3.
PERSONAL INJURIES.
See EVIDENCE, 6; NEGLIGENCE, 7, 8.
PERSONAL PROPERTY.
See EVIDENCE, 2.
See AGENCY; ANSWER; BRIDGE, 1, 2; COMPLAINT; CROSS-COMPLAINT;
HARMLESS ERROR, 1, 2; NEGLIGENCE, 3; REPLY.
1. Complaint.-Administrator.-Party to Record.-Final Judgment.-
Appeal. Where an administrator is made a party to an action
upon application of the plaintiff, and his name appears in the
list of defendants given in the title of the action, he is a party to
the record, although there is no allegation in the complaint that
he is administrator or in any manner connecting him with the
cause of action, and if the judgment rendered is broad enough to
preclude all the parties, he is entitled to appeal; and as the ver-
dict could not cure a defect consisting in the omission of facts es-
sential to a cause of action, the complaint as to him will be held
to be insufficient.
2. Answer.-Specific Denials.-Demurrer. - An answer setting out spe-
cific denials of the cause of action is bad on demurrer when a gen-
eral denial is pleaded, under which the same proof may be made.
Board, etc., v. Nichols, 611
POLICE REGULATION.
See MUNICIPAL CORPORATION, 4.
See CONVEYANCE, 3; EVIDENCE, 2.
PRACTICE.
See QUIETING TITLE, 3; SUPREME COURT PRACTICE.
1. Default by Litigant.-Rule or Order of Court. - A litigant can only
be in default when he fails to discharge or satisfy some rule or
order of the court entered against him.
Baltimore, etc., R. R. Co. v. Eggers, 24
2. Exception. Available Error. To an objection not reserved by an
exception, no error can be made available.
Sharpe, Admx., v. Commercial, etc., Acc. Assn. of America, 92
3. Joint Motion. - Must be Good as to all it Embraces. No error can be
based upon the overruling of a joint motion unless it is good as
to all the matters embraced therein. Board, etc., v. Nichols, 611
PRECEPTS FOR STREET ASSESSMENTS.
PREFERENCE OF CREDITORS.
See FRAUDULENT CONVEYANCE, 4.
PRESUMPTION.
See ACTION, 1; HIGHWAY, 23 JUDGMENT, 3; SPECIAL VERDICT, 8;
PRINCIPAL AND SURETY.
See HUSBAND AND WIFE; MARRIED WOMAN, 1, 2, 3.
Summons. When Necessary to Issue. - Cross-Complaint. Jurisdiction.
-Where a cross-complaint is filed, setting up a cause of action
not disclosed in the original complaint, it is necessary to issue
process thereon against the defendants therein named, in order
to acquire jurisdiction over their persons. Shaul v. Rinker, 163
See CANCELLATION OF INSTRUMENT, 1, 2; MARRIED WOMAN, 2.
PUBLIC DUTY.
See MUNICIPAL CORPORATION, 6.
PUBLIC POLICY.
See CONVEYANCE, 4; INTOXICATING LIQUORS, 9.
PURCHASER, PENDENTE LITE.
See JUDGMENT, 4; CONVEYANCE PENDENTE LITE.
QUANTUM MERUIT.
See TRUST, 1.
QUIETING TITLE.
See JUDGMENT, 6; REAL ESTATE, 2, 3; SALE, 5; SUPERIOR COURT;
1. Necessary Party. Judgment.-The holder of a tax sale certificate
is not a necessary party to a suit by one claiming under a prior tax
deed to quiet title as against the original owners of the land and
a decree quieting title in such suit is not void as to him because
he is not made a party.
2. Transfer of Land Pending Suit.-Effect of. Where, pending suit
to quiet title to real estate, a part of the land is transferred by
the plaintiff, the cause may, under section 271, R. S. 1881, pro-
ceed to final judgment in the name of the plaintiff, in the same
manner as if there had been no transfer.
3. Parties Defendant. Omission of Lienholder as Party. - Effect of
Decree. Practice. - Waiver. - Collateral Attack. - The omission of
the owner of the equity of redemption as a party to a suit to quiet
the title to the land in controversy would not prevent the decree
from operating to bar and foreclose those who were parties to the
suit, and who were decreed to be barred and foreclosed; and
the objection that the owner of the equity of redemption was not
a party to the suit could only be taken in that cause by demurrer
or by answer (not in a collateral suit), and not being so taken,
the objection is waived.
4. Against Superior Lienholder.—Payment or Offer to Pay.-Equitable
Relief.--Where a party seeks to have title quieted against superior
lienholders, before he can ask the interposition of a court of
equity in his behalf, he should either pay, or offer to pay, the
superior lien against which he seeks to quiet title.
5. Complaint. Demurrer.-A complaint in the usual form to quiet
title to real estate, which alleges that the defendants have no in-
terest in the property, and no lien of any kind thereon, is not
rendered bad on demurrer because it appears by subsequent
pleadings and the evidence that the defendant held a valid lien
for taxes paid.
6. Deed. Can not be Varied by Parol. - Tax Lien. -Transferred by
Deed Notwithstanding Oral Agreement. - A deed can not be contra-
dicted, changed or modified by previous or contemporaneous oral
negotiations, stipulations or agreements inconsistent with its
terms; and so where the vendee of the holder of an invalid tax
deed seeks to enforce the lien given by statute, an answer that
at the time of taking his conveyance from the holder of the tax
deed the plaintiff and his grantor had agreed that such convey-
ance should not transfer either the title or the lien for taxes, but
should merely operate as a release of the lien, and that subse-
quently the defendant had paid to the plaintiff's grantor the full
amount due on account of the tax sale and taken to himself a
quitclaim deed, is bad.
7. Redemption from Tax Sale. Recorded Deed.-Notice. In making
redemption from a tax sale the owner is bound to know, where a
conveyance from the holder of a tax deed to a third person is up-
on record, that such conveyance carried to the grantee the pur-
chaser's lien.
8. Judgment Lien. -Tax Lien. -The question involved here, that the
title of one holding under a judgment lien can not be quieted
until the tax lien thereon is discharged, was decided in Browning
v. Smith, 139 Ind. 280.
Ferris v. Berkshire Life Ins. Co., 486
See INJUNCTION, 1; MANDAMUS; MASTER AND SERVANT, 10; NEGLI-
GENCE, 8; STREET RAILROAD.
1. Street Crossing. Obstructions.—Finding as to How Far Trains
Could be Seen. -Negligence. Where one driving along a street
which crosses two parallel railroad tracks, thirty-five feet apart,
exercises due care in approaching and passing the first track,.
which is a side track, with cars standing thereon so as to obstruct
the view of the main track, and then looks and discovers a train,
which has not given the required signals, rapidly approaching
upon the main track, and makes every possible effort to avoid a
collision, it is immaterial how far he could have seen the train
when he had crossed the side track, and a refusal to require the
jury to make a finding upon that point is not error.
Pittsburgh, etc., R. W. Co. v. Burton, Admx., 357
2. Killing at Street Crossing.-Neglect to Give Signals.-Limit of Dam-
ages. Statute Repealed. The act of March 29, 1879 (Acts 1879, p.
173; R. S. 1881, section 4020, et seq.), in so far as it fixes the
damages recoverable for injuries caused by the failure of a rail-
road company to give certain signals at a highway crossing at five'
thousand dollars, was repealed by the general act of April 7, 1881
(R. S. 1881, section 284; R. S. 1894, section 285), fixing the limit
of damages in all actions for death by the wrongful act of an-
other at ten thousand dollars.
3. Care Required of Traveler at Crossing. -Care Stated. -Omission of
Signals. Contributory Negligence. One who is about to cross over
a railroad track at a street crossing is only required to exercise
prudence and caution in proportion to the dangers incident to the
crossing, with its obstructions and peculiar hazards; and so one
who, being in possession of all of his faculties, drives toward a
crossing with care, stops and looks and listens at a parallel side
track thirty-five feet distant from the main track, but can hear no
approaching train and can see none by reason of obstructing cars
upon the side track, passes over the side track, again looks and
listens and then cautiously approaches the main track and when
near it discovers a rapidly approaching train, which so frightens
his ordinarily gentle horses that, notwithstanding his strongest
efforts, they run forward upon the track and the driver is killed,
is not guilty of negligence, and damages may be recovered where
it appears that the defendant's servants in charge of the train
negligently omitted to give the signals required by law.
4. Master and Servant. - Section Foreman.-Sudden Peril. - A section
foreman who, after a train has passed, orders his hand car
placed upon the track, and while it is being so placed, suddenly
discovers that the train, without warning is backing down the
track, and hurriedly attempts to get the hand car out of the way,
and then, being unable to do so, attempts to step off the track
and in doing so falls and is killed by the hand car being pushed
upon him by the train, is not guilty of negligence.
Pennsylvania Co. v. McCaffrey, Admx., 430
5. Excessive Hours of Employment.-Railroad Company Bound to Know
that Employes Will Leave Train to get Food. Where a railroad
company so arranges the time schedule for one of its trains that
the train crew are required to work nineteen hours consecutively
each day, without relief or provision for food, the company is
bound to know that the men will leave the train at intervals for
food, and it will be held to assent thereto, and their so leaving the
train for such a purpose is not negligence on their part.
Ib.
6. Railroad Company Must Provide Enough Servants at all Times. It
is the duty of a railroad company to provide a sufficient force for
the proper management of its trains, and when, by reason of the
number of hours of continuous service some of the trainmen,
are habitually compelled by hunger to temporarily leave the
train it is the duty of the company to either stop the train until
their return or to supply their places with other competent men,
and for an injury resulting from a breach of this duty it is liable.
7. Liability of Railroad Company to Section Foreman. -Case Stated.-
A railroad company which requires such continuous service from
a train crew as to be chargeable with notice that they leave the
train to obtain food is liable for the death of a section foreman
who, although knowing of the habit but not shown to have had
knowledge of the absence of the conductor and engineer on the
particular occasion, and being without fault, is killed by reason
of the train moving backwards upon the track in sole charge of
the fireman, without any signals being given, and without any
signalman on the rear car to give warning of danger.
8. Extending Street Over Railroad Yards Containing Switches, Engine
House, etc. Injunction. If, to extend a street as projected, over
the yards of a railroad company, containing side tracks, engine
house, water tank, coal dock, etc., would not only increase the
hazards of the business, but would include within the limits of
said street two stalls of said roundhouse and a considerable por-
tion of the coal dock, and would not permit the use of the water
tank, without encroaching upon the street, the land can not be
thus appropriated for street purposes, and such threatened ap-
propriation may be enjoined.
Cincinnati, etc., R. W. Co.v. City of Anderson, 490
9. Use of Ground for Yards, Engine House, Coal Dock, etc., a Public
One. When More than One Public Use May be Made of the Same
Land. When Not. - The use of the ground by the railroad for the
purposes above mentioned is a public use, and where the use of
the ground for railroad purposes and for street purposes may co-
exist without impairment of the first use, it may be appropriated
to the use of both; but where such uses can not coexist, or where
the first use is materially impaired or destroyed, the second pub-
lic use will be denied.
10. Standing Timber Close to Right of Way.-Possibility of Falling on
Railroad Track.-Right of Railroad Company to Cut Down. -Dam-
ages. Injunction. - Where a railroad company, by its agents, with-
out notice or permission, entered upon land adjoining its right of
way and cut down growing timber, the only reason for such act
being fear that the timber might fall upon the railroad track, ow-
ing to the close proximity of such timber to the railroad com-
pany's right of way, the railroad company is liable in damages
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