30 Ind. 98 | Ind. | 1868
This was an action of replevin by the appellant against the appellees. Issues were formed, upon trial of which a general verdict for the defendants was returned. A new trial was thereupon granted to the plaintiff upon the payment of costs in sixty days. This was at the August term, 1862. At the next term, and at each succeeding term until that of February, 1866, the cause was continued by agreement. At the last mentioned term, the defendants moved for judgment on the verdict, it appearing that the costs had not been paid. This motion was sustained, and the plaintiff excepted. Judgment was thereupon entered for the return of the property, and there was no exception thereto. Affidavits and evidence submitted on both sides, upon the hearing of the motion for judgment, disclosed nothing to excuse the non-payment of costs within the sixty days limited by the court. A mistake was first made by the clerk in stating the amount of costs to the plaintiff*. The amount thus erroneously given was paid within the time. But notice of the error was given in time to have enabled the plaintiff to pay the balance within the sixty days, and he neglected to pay it, though it was paid after, the motion was entered. The defendants consented to the various continuances, supposing that the costs had been paid, and had issued a subpoena for witnesses, returnable to the February term, 1866.
The appellant contends that the appellees, by consenting to the continuances and issuing the subpoena, waived their right to demand judgment upon the verdict. We are unable to concur in that opinion. There is no similarity between the case in hand and one where a discontinuance
The judgment is affirmed, with costs.
