54 Ind. 242 | Ind. | 1876
Complaint by John Erost against Mary A. Collins, to foreclose the equity of redemption in a mortgage on certain lands, given to secure two promissory notes made by Joseph Collins, her husband, since deceased.
Demurrer to complaint for want of sufficient facts overruled. Answer:— •
1. Payment;
2. Want of consideration;
3. Want of consideration except as to fifty dollars.
Separate demurrers to second and third paragraphs of answer for want of sufficient facts overruled.
Trial by jury; finding for the amount due on the notes; motion for a new trial;- overruled; judgment of foreclosure and sale of the lands to pay the amount. Exception was taken by the appellant to each ruling of the court.
1. The appellant makes many objections to the complaint, none of which, it seems to us, are valid. The complaint is in the usual form, with the notes and mortgage as exhibits, averring that Joseph Collins died intestate, leaving the appellant as his widow and only heir. It is alleged against the complaint that both notes are joined in one paragraph. The action is brought to foreclose the mortgage, not to recover judgment on the notes.
2. The refusal of the court to grant a continuance, on the affidavit of appellant, to obtain certain papers of guardianship. No useful connection of such papers with the case is shown, nor does it appear that proper diligence to obtain them was used.
3. The refusal to grant a change -of venue. One
4. The refusal to grant time to file another affidavit for continuance on account of the absence of the witness Nugent. It is plain that there had been abundant time to prepare -such an affidavit. Besides, it is matter of discretion, which can not be revised by this court, unless plainly abused. Again, it is not shown in the bill of exceptions what, if anything, could have been proved by the witness.
5. Admitting the notes in evidence. The notes were exhibits with the complaint. There was no answer in denial. It was not necessary to put them in evidence at all. It can not therefore be error to admit them.
6. That the court instructed the jury “ that they should find for the plaintiff the principal and interest due on said notes.” There was no error in this. The appellant’s answer admitted the notes. No evidence had been introduced by the appellant. There was nothing left to do but to find the amount.
7. Permitting the jury to take the notes to their private room tó consider of their verdict. This was perfectly harmless. The notes had been admitted, all except their amount.
8. Excessive damages. It is very clearly shown by calculation that the damages are not excessive.
These are all the points made on behalf of the appellant. There is no substance in either of them. We are constrained to say that the appeal is without merit.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.
