This was an action by the appellee against Seoville, Jones and Shirts, to recover for work and labor done, and materials furnished; and to enforce a mechanic’s lien on a saw-mill and premises, on which the labor had been done, and for which the materials were furnished. Issues were formed, and the cause tried by a jury.
After the jury had been sworn, and the evidence offered, the plaintiff filed a dismissal of the cause as against Jones and Shirts, so far as it was sought to obtain a personal judgment against them, but retained them as defendants, so far as it was sought to enforce the lien on the premises. The defendants objected and excepted to such dismissal, the Court permitting the same to be entered. There was no error in this. Code, § 99; Taylor et al. v. Jones, 1 Ind. 1.
The effect of the proceeding was simply an abandonment of any pretended right to recover against Jones and Shirts a personal judgment for the labor and materials; claiming the right to enforce the lien as against them, however, and leaving them before the Court to protect their interests in the premises, if they had any. This, it seems to us, can not be error.
Verdict and judgment against Seoville, with the usual order enforcing the lien.
After the action above noted was had in relation to Jones and Shirts, an affidavit was filed, on which a continuance
It is objected that incompetent evidence was permitted to go to the jury. A new trial was not asked on this ground.
The reasons filed for a new trial are as MIoavs: 1. “For irregularities in the proceedings of the Court, and abuse of the discretion of the Court, by which the defendants were prevented from having a fair trial. 2. On account of accident and surprise which ordinary prudence could not have guarded against. 3. Because the verdict is not sustained by sufficient evidence, and is contrary to law. 4. Errors of law occurring at the trial, and excepted to by the defendants.”
The evidence is not in the record; hence, nothing further need be said in reference to the third reason. The other reasons were all too vague and indefinite to have brought any question to the attention of the Court below. Barnard v. Graham, 14 Ind. 322; Medler v. Hiatt, id. 405.
What AAre have said disposes of all the questions arising in the case.
Per Guriam. — The judgment is affirmed, Avith 5 per eent. damages and costs.