63 Ind. 291 | Ind. | 1878
The appellant commenced a suit in the ■Gibson Circuit Court, in time for trial at the September term, 1876, of said court.
No exception was taken to any ruling of the court in-bringing the cause to issue.
The record recites, that :
“ Afterward, on the 26th day of said month (September) as aforesaid, the following proceedings were had, to wit:.
“ Comes now the plaintiff and files his reply to the answers of the defendants, and this cause being at issue is by agreement submitted to the court for trial, and, the evidence being heard, the court takes the matter under consideration until the next term of this court, to which time this cause is continued.”
The record further recites, that r
“ Afterward, at the November term, 1876, of said court, on the 14th day of December, in said year, the following*292 proceedings were had, to wit: Come the parties by their' attorneys, and the issues heretofore joined between them are submitted to the court for trial; and the evidence being heard, and the court sufficiently advised in the premises, finds for the plaintiff, that there is due and owing-•to him, on the mortgage in his complaint mentioned, the-sum of seven thousand six hundred and twenty dollars. The court further finds that said mortgage is a senior and prior lien,’ on the undivided one-half of all the real estate-described in plaintiff’s complaint, to the liens, rights and equities of all the defendants herein, except as to the right and lien of the said Samuel B. Judah, John M. Judah and Noble B. Judah in and to lot number four (4) in block number two (2) in the original plan of the town of Hazleton ; and the court finds that the said Judahs’ lien on-said last mentioned lot, acquired by purchase at sheriff’s< sale, as set out in the complaint herein, is a lien thereon prior to the lien of plaintiff’s mortgage.- The court further finds that said mortgage ought to be foreclosed,” etc..
“ Thereupon the plaintiff" moved for a new trial, and filed the following reasons in writing :
“ ‘ 1st. Because the finding and decision of the court in favor of the deferidants Judahs is not sustained by sufficient evidence.
“ ‘ 2d. Because said finding and decision are contrary to law.’ Which motion the court overrules, to which decision the plaintiff" at the time excepted.
“ And now he prays that this may be signed as his bill of exceptions and made a part of the record in this cause;; which is accordingly done, this 16th day of January,. 1877.” [Signature of the Judge.]
The only error assigned is the overruling of the motion for a new trial.
The motion for a new trial was general as to all the defendants, while no error was claimed in the. motion to have.
The appellees 'insist upon another point. They claim that the evidence is not before the court by the bill of exceptions. The evidence appears to have been heard at the September term, at which time no bill of exceptions was filed embodying it, and no time given beyond the term to prepare one.
The statute enacts, sec. 343, 2 R. S. 1876, p. 176, that :
“ The party objecting to the decision must except at the time the decision is made; hut time may he given to réduee the exception to writing, but not beyond the term, ■unless by special leave of the court.”
In the. case at bar, no exception was taken to any ruling •or action of the court at the September term. No objection to any item of evidence was made. Hence there was no occasion to obtain a bill of exceptions. Had any ruling ■of the court been excepted to at the September term, it would have been necessary to obtain a bill of exceptions, ■signed by the judge at the time, or to obtain an extension ■of time to file one.
At the next, the November, term, when the court announced its finding, a motion for a new trial was made and ■overruled, to which action of the court in overruling said motion exception at the time was taken, and a bill of exceptions was prepared, embodying the evidence given at the September term. "We think this was a proper course of practice.
The judgment is affirmed, with costs.