Rensselaer Republican, Volume 22, Number 44, Rensselaer, Jasper County, 3 July 1890 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

Recent Decisions of the Indiana Supreme Court. ts (1) A proceeding to avoid a judgment on the ground of fraud in obtaining it is a direct and not a collateral attack upon such judgment. (2) In an action by an infant to set aside a judgment on the) ground of fraud, the age of the infant at the time of the judgment was taken as a proper subject for consideration. So if infants twenty years old are personally served with process and it is not shown that they were prevented in any way from appearing at the time fixed in the summons, the mere fact that before the day on which the summons was returnable a guardian ad litem was appointed, who answered immediately, whereupon a trial was at once had and judgment rendered against the infant, shows irregularity but does not 9how fraud, as the presumption of good faith prevails until rebutted. A method of keeping an account of the various funds by County Auditors and of making semi-annual settlements and the Auditor's compensation for performing the duty have been prescribed by the Legislature. The County Commissioners have no power to change the method nor to allow the Auditor any additional compensation.

(1) When an insurance company, upon being notified of a loss, obtains possession of the policy, and refuses to adjust or pay tho loss, and so notifies the insured, the latter is excused from furnishing proof of such loss, as the action ol the company constitutes a waiver, and such company is estopped to assert of the policy. (2) Where it is clearly manifest that the person who signed the answers returned by the jury to interrogatives was the foreman of the jury, the omission of the word “foreman” is notan available objection. (3) When, after loss, a written settlement is agreed upon between the company and the insured, and the policy surrendered, such settlement, although procured by fraud on the part of the company, prevents an action on the policy until it is rescinded. '■

Jn an action by the administrator upon promissory notes, secured by mortgage, was answered by the defendants that the decedent was an old bachelor; that he was the unCle of the wife of the' mortgagor, and frequently made his home with them when sick; that they desired to purchase a home for themselves, and that he gave the money evidenced by the notes in order to enable them to do so; that it was! agreed between the parties at the time, that such money should never be repaid, but that, the mortgagors should only pay interest on the amount sogiven as long as the decedent lived. Hold, that the money advanced did not' constitute consideration for the notes, and that it was proper to inquire into the whole transaction between the parties in order to ascertain their real intention. The money being a gift, and not constituting the consideration for the notes, the latter are not enforcible. (1) An answer can not be questioned for the first time in the Supreme. Court. (2) Action for horses killed on the appellant’s track near a village. Held, that the opinion of expert witnesses to the effect that the putting of a eattle-guard under the track at the place whore the horses entered would inake-the use of the track dangerous was not competent, and was properly excluded. The appellant had a right, merely to prove the condition of the tracks, their location, the use made of them, and like facts, and the burden was upon it to make it appear afflrrifatively that the track could not he guarded by cattle pits or fences without endangering the safety of its employes.

(1) As Section b,030, R. S. 1881. provides that the owner of land across which a new highway has been established shall not be required to remove fences between April 1 and November 1, and then only upon sixty days’ notioe. The notice is bad if given within the dates mentioned, or shortly before the first date; it must be given during the time when the owner may be required to act. Without sufficient notice the supervisor has no power to remove the fence, upon the failure of the owner to do so, and may be enjoined. (2) The complaint for injunction was bad for failing to properly negative the giving of notice, but as the facts were agreed upon and no different result could be reached upon another trial, the judgment is affirmed. The Township Trustee, conspiring with Boyd's assignor, issued certificates of indebtedness to the amount of $1,394 for lightning rods, worth $312, erected upon school houses. Held, that the certificates are void entirely, and that nothing can be recovered thereon.