19 Ind. 324 | Ind. | 1862
This was au action commenced by Mahala
Among the errors assigned, is this: That after the death of Mahala was suggested, there was no party plaintiff in Court who could prosecute the suit. This objection comes entirely too late. If Barbour had not been duly appointed administrator, de bonis non, of the estate, the objection should have been made, in some form, below, which was not done.
Another error assigned, is, that the action had been once dismissed by the plaintiff below, and there was no order reinstating it.
The original record, filed in this Court, shows that the plaintiff dismissed the action. An amended transcript, however, sent up on certiorari, which purports to be a full and complete transcript of the proceedings, does not show such dismissal. But, taking the original transcript as our guide, there is no error in this respect, for, after the entry of dismissal, the parties voluntarily appeared to the action, and submitted it for trial to the Court. This was a waiver of the dismissal. Bosley v. Farquar, 2 Blackf. 61. Wilson v. Coles, Id. 402. Clark v. The State, 4 Ind. 268.
The other errors assigned, are based upon matters that can only appear by bill of exceptions.
The motion for a new trial was overruled, and judgment entered, on or about the 20th of September, 1860, and sixty days were given to file a bill of exceptions. The bill of exceptions in the cause, was filed, as the clerk certifies, on
The judgment below is affirmed, with costs.