Lackey v. Hernby

| Ind. | Dec 3, 1857

Per Curiam.

This was a bill in chancery to foreclose a mortgage. Lackey, who was the defendant, filed an answer and cross-bill, to which the then' complainant, John Hernby, excepted. The exceptions were sustained; and the defendant failing to make further answer, a final decree was given against him. After this, John Hernhy, the original complainant, died, and his administrator, the present appellee, filed a bill in the Wayne Circuit Court to revive the decree. To this bill there was a demurrer overruled, and a decree of revivor entered, &e.

J. S. Neiuman and J. P. Siddall, for the appellant.

The errors assigned are these: 1. The Court erred in sustaining exceptions to the answer and cross-bill. 2. In overruling the demurrer to the bill of revivor.

In support of the first assignment of error, it is argued that objections to the sufficiency of a cross-bill must be taken by demurrer, and not by exception. We are not inclined to notice this objection to the decree, because the point which it involves was not made in the Court below. Nor can we notice the second assignment, for the reason that the grounds of demurrer are not pointed out in the appellant’s brief.

We have, however, carefully examined the record, and are decidedly of opinion that the merits of the cause have been fairly determined in the Court below.

The judgment is affirmed, with 3 per cent, damages and costs.