77 Ind. 468 | Ind. | 1881
This suit was commenced by the appellee against the appellant, before a justice of the peace of Marion county, upon a claim for services rendered, in the sum of $150. Upon a trial had, the justice gave judgment for the appellee for the full amount of his claim, from which an appeal was duly taken by the appellant to the court below. In that court, at special term, the cause was tried by the court, and a finding was made for the appellee in the full sum demanded; and, over the appellant’s .motion for a new trial, and his exception 'saved, judgment was rendered accordingly. On appeal to the general term of the court, the judgment of the special term was affirmed, and from this judgment of affirmance, this appeal is now here prosecuted.
By a proper assignment of error, the appellant has brought before this court the errors assigned by him on his appeal to the superior court in general term, as follows :
1. The court at special term erred in overruling his motion for a new trial; and,
2. The appellee’s complaint does not state facts sufficient •to constitute a cause of action.
In his complaint, the appellee alleged, in substance, that, on September 9th, 1876, he was, and since, had been, engaged in the business of a real éstate broker, in the city of Indianapolis, which the appellant well knew; that the ap
The appellant did not object to the sufficiency of this complaint, either before the justice or in the court below at special term, but the objection was made for the first time, after trial and judgment, in an appellate court. The objection came too late, even if it would otherwise have been available. But it may be regarded as settled law in this State, that, in suits originating, as this one did, before a justice of the peace, the complaint will be held sufficient, e^en on a demurrer for the want of facts, if it will inform the defendant of the nature of the plaintiffs cause of action, and be so explicit that a judgment thereon may be used as a bar to another suit for the same cause of action. Powell v. DeHart, 55 Ind. 94 ; The United States Express Co. v. Keefer, 59 Ind. 263 ; Hewett v. Jenkins, 60 Ind. 110 ; Smith v. Stanford, 62 Ind. 392 ; The City of Goshen v. Kern, 63 Ind. 468 ; DePriest v. The State, 68 Ind. 569.
There can be no doubt, as it seems to us, that in the case at bar the appellee’s complaint fully informed the appellant of the nature of his cause’of action, and was so explicit in its allegations of fact that a judgment thereon might be
In his motion for a new trial, the appellant assigned the following causes therefor:
1. The finding of the court was contrary to, and was not supported by, the evidence ; and,
2. The damages assessed were excessive.
It will be readily seen that neither of these causes for a new trial presents any question for the decision of this court, if it can not be said that the evidence is in the record. The bill of exceptions does not purport to contain all the evidence given in the cause, but, after setting out the testimony .of the parties given on the trial, the bill of exceptions concludes with a statement that “this was all the testimony given in said cause.” It is apparent on the face of the bill of exceptions, that it does not contain all the evidence, although it may have contained all the oral testimony given on the trial of the cause, for it contains the statement that the appellant offered the interrogatories propounded to appellee, and his answers thereto, which were admitted. These interrogatories and answers are not contained in the bill of exceptions nor elsewhere in the record. In McDonald v. Elfes, 61 Ind. 279, the bill of exceptions had concluded, as in this case, with a statement to the effect that this was all the testimony given in the cause. Upon this point the court there-said : “ ‘Testimony’ is not the proper word to be used in that connection. Testimony is the statement or declaration of a witness; it is merely a species or class of ‘evidence,’ which latter word is the proper one to be used in the conclusion of a bill of exceptions,which contains the evidence introduced on the trial of a cause. For evidence includes all testimony, while testimony does not include all evidence.”
When it appears, as it does in the case at bar, that written evidence was introduced on the trial, which is not con
The court committed no error, we think, in overruling the appellant’s motion for a new trial.
The transcript of the record of this cause, with the appellant’s assignment of error endorsed thereon, was filed in this court on the 1st day of February, 1879, and on the 28th day of May, 1879, the cause was submitted by agreement. Briefs were thereafter filed in due time by the counsel of the respective parties, and the cause was ready for distribution and decision, in its order. The case remained in this condition for about eighteen months, or until the 11th day of November, 1880, at which time a writ of certiorari was issued out of this court on the appellant’s application, addressed 'to the clerk of the court below, and requiring him to certify to this court the proceedings had upon a motion to amend the record, which was made and ruled upon by the court below. Afterwards, on the 13th day of December, 1880, the return of the clerk of the court below to the certiorari, with a certified transcript of the proceedings had on said motion, was filed in this court, and, on the 19th day of December, 1881, apparently without notice to the appellee and without the leave of this court, the appellant endorsed on the original transcript an additional assignment of error. In this assignment the appellant said “that the court below, in special term, committed a further error, in this, that it overruled the motion to amend the bill of exceptions herein, and that the court in general term erred in affirming said action and judgment of the special term.” ■
If it was intended by the latter clause of this assignment of error, to say that the court in general term erred in affirming the action and judgment of the special term in over
We find no error in the record.
The judgment is affirmed, at the appellant’s costs.
