Burgess v. Matlock

12 Ind. 357

• Court: Indiana Supreme Court
• Decided: June 1, 1859
• Status: Published

Opinion

Per Curiam.

Suit to foreclose a mortgage.

The defendant answered in two paragraphs. Demurrer to one paragraph sustained, and rule to answer over. Issue upon the other paragraph. The defendant refused to answer over on the demurrer. The Court heard the cause, and rendered final judgment for the plaintiff.

Two objections are taken—

1. That the judgment is for too much. According to our calculation, it is not.

2. That a jury was not called to try the cause. There was an issue upon one paragraph of the answer, which went to the whole complaint. But the defendant was present at the trial by the Court—made no objection— moved for a new trial, and did not assign the trial by the Court, instead of a jury, as a cause—took no exception to the mode of trial.

H. C. Newcomb, J S. Tarkington, and S. M. Campbell, for the appellant. C. C. Nave and J. Witherow, for the appellee.

It is too late to raise the objection here.

The judgment is affirmed with 8 per cent, damages and costs.