Lawless v. Harrington, 75 Ind. 379

Lawless v. Harrington

75 Ind. 379 | Ind. | 1881

Woods, J.

Action by the appellees, against the appellants, upon an injunction bond, commenced before a justice of the peace, and taken thence, by appeal, to the circuit court.

Error is assigned upon the overruling of the appellants’ respective motions, for a new trial, for a change of venue, to strike out parts of the complaint, for leave to. file an answer, and for an extension of time to file bills of exceptions, upon the overruling of the demurrer to the complaint, and that the judgment is erroneous, excessive and oppressive.

The refusal of the court to strike out part of the complaint can present no available* error. Hay v. The State, ex rel., 58 Ind. 337; The Baltimore, etc., R. W. Co. v. Pixley, 61 Ind. 22 ; Trammel v. Chipman, 74 Ind. 474.

The only ground of demurrer urged against the complaint is, that the transcript from the justice of the peace, and the record in this court, show no copy of the bond filed with the complaint. The objection is not true in point of fact. The complaint contains an averment that a copy of the bond is filed therewith, and immediately following the complaint in the transcript is set forth a copy of the bond.

There is no bill of exceptions showing the application for a change of venue, nor the answers which it was proposed to file. There is, therefore, no question saved in reference to these rulings. McDaniel v. Mattingly, 72 Ind. 349 ; Douglass v. The State, 72 Ind. 385.

The case having been commenced before a justice of the peace, all matters of defence were, provable without plea, except the statute of limitations, set-off, and matter in abatement. The answers set forth in the motion for a new trial, as those which the court excluded, presented nothing within the exceptions. The appellant therefore suffered no harm in this respect. The Cincinnati, etc., R. R. Co. v. Ridge, 54 Ind. 39

*381There is in the record a bill of exceptions, showing the motion of the appellants, and the affidavits filed in support thereof, for an extension of the time to file bills of exceptions, but the counter showing, which the bill states was filed, is not given. If, therefore, it were conceded that the court had power, on a,proper showing, to have extended the time, it is impossible to say that there was error in overruling the request, because the entire showing is not before us.

The evidence not being in the record, we can not decide whether the judgment is excessive or'that any improper element of damages was allowed.

The assignment, to the effect that the action of the judge ■was oppressive, illegal, and in violation of all law, and the whole judgment wrong and oppressive, is too general to present any question. Assignments of error, to be available, must be specific.

The judgment is affirmed, with costs.