Brown v. Ellis

35 Ind. 377

• Court: Indiana Supreme Court
• Decided: May 15, 1871
• Status: Published

Opinion

Worden, J.

This was an action by the appellee against the appellants to foreclose a mortgage and recover judgment on a note secured thereby, executed in 1859. The complaint prayed for payment in gold. The defendants appeared and answered, but upon the calling of the cause for trial they withdrew their appearance, and the issues formed by the pleadings were tried by the court in their absence. Finding and judgment for the plaintiff, and that the amount found due be paid in gold coin.

The errors assigned embrace two points only. First, that the amount found due was excessive; and, second, that the judgment for payment in gold coin was erroneous.

We are of opinion that neither of the points made is properly raised by the record. The point as to excessive damages could only be reached by a motion for a new trial.

M. M. Milford and f. Poole, for appellants. f. Buchanan, for appellee.

In regard to the other point, there should have been an exception to the kind of judgment rendered, or at least a motion to set aside or modify it, before bringing the case to this court. No step of this kind was taken in the court below.

The judgment of the court below is affirmed, with costs, and five per cent, damages.