80 Ind. 544 | Ind. | 1881
— It is settled that where one of several paragraphs of a complaint is good, it will repel an attack made, for the first time, by the assignment of errors, although some of the paragraphs are bad. Charlestown School Tp. v. Hay, 74 Ind. 127. Two, at least, of the paragraphs of the complaint in this case are good, and the attack made by the assignment of errors is, therefore, unavailing.
The record shows that Myers, the original plaintiff and administrator, resigned his trust, and that the appellee was .appointed to succeed him. It therefore appears that the proper party plaintiff was before the court. If it were essential that the complaint should be amended by striking out the name of Myers and inserting that of McCrary, we should be required to treat the complaint as having been properly amended. The amendment was one which the appellee might have made in the trial court, and we must treat it as having been made, for substantial justice requires that this should be done.
On the 4th day of February, 1879, a default was entered against the appellant. On the 18th day of the same month, the default was set aside and a rule to answer entered, and this rule was complied with on the 26th' day of that month. By continuances granted upon appellant’s application, the ■case was continued until the 31st day of May, 1880, when, upon the failure of the appellant to appear, it was submitted to the court for trial, and a finding and judgment entered in favor of the appellee. On the 3d day of June, 1880, the appellant filed a motion to set aside the judgment entered against
As there had been a trial of the cause, the appropriate motion was for a new trial; and wc pass to the consideration of the questions presented by the ruling upon that motion. The affidavits in support of the two motions are substantially the same, and, even if it were proper, it would be unnecessary to-consider the motions separately.
The evidence is not in the record, and several of the questions require, for their correct apprehension and decision, an. examination of the entire evidence, and we can not consider them in the absence of the evidence. Where it is necessary to a full understanding of the rulings made in the progress' of a trial that the evidence should be brought into the record, the rulings will not be examined in the absence of the evidence from the record.
The seventh ground stated in support of the motion for a new trial can be fully understood and ruled upon without the evidence. This reason is generally stated as follows: “ For an unavoidable accident which ordinary prudence could not have guarded against,” and this is followed by a specific, statement of the character of the so-called accident.
We have examined the record and affidavits and are not willing to decide that the court erred in overruling appellant’s motion. We find many delays brought about by the appellant; a change of venue from Montgomery to Fountain county, and several continuances. We find, too, that at the term preceding that at which the trial took place, a continuance was obtained for the same cause as that upon which the motion for a new trial is chiefly placed, the illness of' the appellant. It is very evident that the appellant has been constantly struggling, and with no small measure of success, for delay. There ought to be an end to litigation, especially where, as here, the settlement of a decedent’s estate depends upon its termination. It was incumbent upon the appellant,
Judgment affirmed, with costs.
