15 Ind. 286 | Ind. | 1860
Suit to foreclose a mortgage. The appellees were the plaintiffs, and the appellants the defendants. The complaint charges that the defendants, on April 22, 1850, executed to the plaintiffs a mortgage, conveying to them a certain tract of land, therein described, to secure an existing debt and future advances; that on August 20, 1855, an accounting was had between Samuel Edsall and the plaintiffs, in relation to all claims intended to be secured by the mortgage, which resulted in a balance found in their favor of $5,875, and for which he executed to them his note, payable at date, with interest, &c. On June 3,1858, being the thirty-fourth judicial day of the April term of said Court, the cause was called, “when the defendants’ attorney objected to the trial thereof, for the reason that the defendants were absent and not ready to go into trial,” &c.; but the objection was overruled, and thereupon the issues were submitted to the Court, who found for the plaintiffs $5,039, and rendered a decree of foreclosure, &c. After this, on June é, being the thirty-fifth judicial day of the term, the defendants moved for a new trial, on the ground of surprise, and in support of their motion, filed two affidavits; one, the affidavit of Samuel
(1) Petition for rehearing, filed January 18, and overruled May 10,1861.
The judgment is reversed, with costs. Cause remanded, &c.