Coffin v. Evansville & Crawfordsville Railroad

7 Ind. 413

• Court: Indiana Supreme Court
• Decided: May 27, 1856
• Status: Published

Opinion

Perkins, J.

The declaration in this, is precisely like that in Fisher v. The Evansville and Crawfordsville Railroad Company, the preceding case. The defendant appeared by counsel, and filed an answer like that in the case of Fisher, supra. He subsequently came into Court and withdrew his appearance. Afterwards the case was called, default of appearance entered, and interlocutory and final judgment rendered for the plaintiff. No bill of exceptions was taken. Appeal to this Court.

E. S. Terry, D. McDonald and W A, McKenzie, for the appellant. J. P. Usher, for the appellees.

It would seem that on the withdrawal of appearance by the defendant, the case stood as though he never had appeared—stood without an appearance; and as there could be no answer where there was” no appearance, it would also seem that that filed on appearance, must have fallen with the withdrawal of appearance, and that judgment was properly rendered upon a default.

At all events, judgment of nil dicit might have been entered.

But the judgment in this case was neither nil dicit, nor by default. The Court regularly tried the case upon evidence, and found for the plaintiff; and as no exception was taken, there is no question before this Court.

Per Gwriam.

The judgment is affirmed, with 10 per cent, damages and costs.