14 Ind. 166 | Ind. | 1860
The appellant, who was the plaintiff, sued
Graybill upon a promissory note for the payment of 1,165 dollars. The note bears date January 2,1856, was payable to W. H. Layman Co., and was by them assigned to the plaintiff.
Defendant, in his answer, sets up these facts: On the 8th of June, 1856, he became a partner of Layman Sf Co., the payees of the note, in the business of selling groceries. The partnership agreement was in writing. Pursuant to that agreement, they, the defendant and said Layman fy Co., established a grocery store at Ladoga, in Montgomery county, which was continued up to January 2, 1857, when W. II. Layman, one of the partners, proposed selling out to the defendant the interest of Layman 8f Co. in the establishment. At the time this proposal was made, he represented to defendant that Layman Sf Co. had furnished and put into said grocery store, moneys and goods to the amount of 1,965 dollars, in proof of which he then referred defendant to the ledger belonging to the establishment, and especially to an account which appears as an entry on page 2 of that ledger. Defendant, relying on said representations, agreed to purchase the interest of Layman Sf Co. in the grocery store, upon the following terms, viz.: He was to pay them for all the moneys and goods which
Plaintiff replied by a general traverse. Before entering upon the trial, the plaintiff, as to the balance of said note not controverted by the answer, moved for an interlocutory judgment, which motion the Coúrt sustained. The cause was then submitted to a jury, who found for the plaintiff 487 dollars, 80 cents.
The record says that defendant, upon the return of the verdict, moved to set aside the order for the interlocutory judgment, and substitute the amount found by the jury' as the amount for which judgment in the suit be rendered. And in support of his motion, he produced an affidavit subscribed and sworn to by the jurors who returned the verdict, in which they deposed, substantially, that they considered the facts in the case and agreed on their ver
The Court, having heard the motion, sustained it, upon the ground that the interlocutory judgment was merged in the verdict of the jury.
The plaintiff thereupon moved for a new trial; but his motion was overruled, and judgment was rendered on the verdict.
The first alleged error relates to the action of the Court in setting aside the interlocutory judgment. As a general rule, the proceedings of Courts are to be considered in fieri, until the close of the term at Which they were entered. 9 Ind. R. 490. Hence, it may be assumed that the Court—proper application having been made during such term—may set aside or modify any of its proceedings, in order to promote the due administration of justice. And, in this instance, the ruling must be sustained, unless it is found that the application to set aside was unsupported by sufficient cause. It was plainly irregular for the jury to find a verdict upon the whole case made by the complaint, because the amount of the interlocutory judgment was not in issue by the pleadings. The item of 760 dollars, alone, was before them for consideration, and the correction of such irregularity, being within the power of the Court, the only legitimate mode of effecting that purpose seems to have been adopted. The interlocutory judgment having been set aside, the final recovery against the defendant stood as it would have stood had the jury deducted the judgment from the amount of their verdict. That they did not do so is evident from the fact that the several amounts of the judgment and verdict; when added together, amount, in the aggregate, to more than the note in suit and interest. But further, the jurors themselves all testify that they did not intend that the sum included in their verdict should be in addition to the amount of the
But the appellant assigns another error, viz., that the verdict was not sustained by the evidence. We think otherwise. The evidence given on the trial is, it is true, to some extent conflicting; but the weight of it fully sustains the finding.
We are of opinion that the record before us contains no error available in this Court.; and that the judgment of the Court below is in accordance with the substantial rights of the parties.
The judgment is affirmed with 5 per cent, damages and costs.