32 Ind. 369 | Ind. | 1869
A reversal of the judgment is claimed on the ground that the court below erred in excluding certain evidence offered by the appellant as to the amount of property owned by Neff, the lessee. The rejection of .the evidence offered appears by a bill of exceptions-; but fit was not urged as a reason for a new trial, and is not, therefore, properly before this court. The improper rejection of evi- ) dence is an error occurring at the trial, and'ifmotpresenteá f, as a reason for a new trial, is deemed to be waived, and can- j not be urged as a cause for reversal in this court. This j point is too well settled by repeated decisions to require a / reference to the cases.
It is also urged that the judgment should be reversed, because no reply was filed to the second paragraph of the answer, alleging payment of the demand by Neff-
This question has been before this court several times in different forms. It is settled by numerous adjudications, that it oannot be raised for the first, time an. this court; but whether it is available in any form after trial, and if so, in what mode it may be made available, are .questions that do not seeem to be so clearly settled. .
In Martindale v. Price, 14 Ind. 115,‘.there was a trial, and judgment on an affirmative answer without a >reply, . The question was raised for the first time in ffhis court ’by the assignment of errors, and it was held that it was too late. But it is said in that case, that the objection might have been made in the court below by a motion fin - arrest, or for a judgment non -obstante veredicto.
To the same effect was the ruling .in •the-case-of Henly v. Kern, 15 Ind. 391.
In Davis v. Engler, 18 Ind. 312, where the^same question arose, it is intimated that the objection might have been made after verdict by a proper motion for a new trial for that cause, or for a judgment for the defendant notwithstanding the finding for the plaintiff.
In Preston v. Sandford’s Adm’r, 21 Ind. 156, the question arose on a complaint to review a former judgment rendered
In the case before us, the question was not raised either by a motion in arrest, or for a judgment on the pleadings, notwithstanding the finding of the court. But we- place the decision of the question on- the broader ground, that the proper time to-ask for a judgment for want of a reply was before trial, and that by voluntarily consenting to go to trial without a reply the defendant waived it, and could not avail himself of the- objection afterwards.
It would be trifling with justice to allow a party to consent to go to trial under such circumstances without calling the attention of the- court to the fact that the issue was not properly closed, and take his chances of success in a trial upon the merits, and then, when beaten, to permit him totora around and repudiate bis own voluntary act, and thus defeat his opponent under all circumstances. The law intends, as far as possible, to do substantial justice between parties litigant, and cannot look with favor upon the effort of one party to get a merely technical and unconscionable advantage over the other; and such an effort should never be rendered available when the party making it is himself at fault.
The judgment is affirmed, with ten per cent, damages and costs.