30 Ind. 72 | Ind. | 1868
This was an action by appellants upon a note executed by the appellee to one Loyd Brown for nine hundred dollars, and assigned to appellants. The appellee answered, that the note was given as the last payment on certain real estate sold by said Brown to the appellee; that all the consideration money for such sale had been paid except this note, and that said property had been sold subject
"We can see no defect in the answer, nor do the appellants point out any, beyond the claim6 they make that this note of seven hundred and fifty dollars was excepted in the deed from the covenant of warranty. No such noto,however, is described in the conveyance, and the answer expressly avers that all the notes therein mentioned had been paid off' By the appellee, and that the note described in the answer was another note, although included in the same mortgage with two notes described in the deed. -The demurrer was properly overruled.
It is also assigned as error, that after the cause had been submitted to the court for trial, at the April term, 1866, and all the evidence had been heard, the court allowed the appellee, upon affidavit of surprise, to withdraw the submission, and granted a continuance to the next term of the court, when a trial was had, from the result of which trial this appeal is taken. If the action of the court was erroneous in permitting the submission to be withdrawn, still we cannot see how it can avail the appellant. If it is a good cause for setting aside a subsequent trial, it would be equally good for disregarding all subsequent trials, and the litigation would have no end. The submission' being withdrawn,
There are a number of questions argued in the brief by appellants’ counsel, but as they all should be included in a motion for a new trial, and no error is assigned upon the action of the court in overruling such a motion, we cannot consider them, without a disregard of the law.
The judgment is affirmed, with costs.