Smith v. Smith

3 Ind. 303 | Ind. | 1852

Blackford, J.

This was an action of indebitatus assumpsit brought by Dennison B. Smith and George A. Hazzard against Horace B. Smith. There are two counts— one for goods sold and delivered, and the other for money had and received.

Plea, non assumpsit.

Yerdict and judgment for the plaintiffs.

The defendant’s first objection to the judgment is, that the deposition of Charles E. Bailey should have been suppressed. The defendant’s motion to suppress Bailey's deposition was overruled, but whether correctly or otherwise is immaterial, as the plaintiffs did not, on the trial, read that deposition.

D. Mace, for the plaintiff. E. H. Brackett and R. C. Gregory, for the defendants.

The second objection made to the judgment is, that notwithstanding the Court ordered a change of venue, the cause was tried by the same Court that made the order.

The transcript shows that after the order for a change of venue was made, the cause remained in the Court in which the order was made, and was continued from term to term for several terms. The parties, after those continuances, appeared in Court by their respective attorneys, and submitted their cause to the jury, upon whose verdict the judgment now in question was rendered. It is plain, therefore, that the defendant waived the right of removing the cause under the order they had obtained.

The last objection is, that the evidence does not sustain the verdict.

There is not the slightest reason to doubt on this point. There was only one witness, but his evidence clearly shows the verdict to be right. He heard the defendant expressly acknowledge that he had purchased and received the goods, for the price of which the suit was brought, and that he owed the plaintiffs for them. The judgment is for the amount of the debt, with interest from the time the principal was acknowledged to be due.

Per Curiam.

The judgment is affirmed with 10 per cent, damages and costs.