Barnes v. Wright

39 Ind. 293

• Court: Indiana Supreme Court
• Decided: May 15, 1872
• Status: Published

Opinion

Worden, J.

This was an action by the appellees against the appellant upon a promissory note.

The defendant was duly brought into court by the service of a summons, and there was judgment against him by default. The note stipulated for the payment of attorney’s fees, if suit should be brought thereon, and it was averred in the complaint that the attorney’s fees were of the reasonable value of forty dollars. The j udgment was rendered for a little over ten dollars too much, adding the forty dollars, for attorney’s fees, to the principal and interest of the note. But there were no steps taken in the court below to correct this error in the computation. It might have been there corrected without coming to this court. Where the defendant has been brought into court, and has suffered a judgment to be rendered against him by default, he cannot appeal to this court for the correction of any supposed error in the judgment, without having first applied to the court below for the correction.

J. Brownlee and H. Brownlee for appellant. A. Steele and R. T. St. yohn for appellees.

This has been settled in a large number of cases. It will be sufficient to refer to the following: Darlington v. Warner, 14 Ind. 449; Sturgis v. Rodman, 14 Ind. 604; Durbon v. Connor, 15 Ind. 433. In Skeen v. Huntington, 25 Ind. 510, the rule was applied to a case where there was a question as to the sufficiency of service.

But the appellees having in this court remitted the amount of ten dollars and sixty-five cents of the judgment below, the residue of the judgment below is affirmed, with costs.