Ellis v. Miller

9 Ind. 210

• Court: Indiana Supreme Court
• Decided: June 3, 1857
• Status: Published

Opinion

Per Curiam.

Proceeding by Miller as assignee of Purley, against Ellis, to foreclose a mortgage. Default by the defendant. Decree of foreclosure and sale. Appeal to the Supreme Court.

It is here objected that the complaint was insufficient in not fully describing the mortgage and assignment. But copies of them were filed with the complaint. A full description was thus furnished, and defects, as to this point, in the complaint, if they otherwise existed, were removed. This has been several times decided by this Court. Blair et al. v. Davis, at this term

(1).

It is also objected that there is a defect for want of parties. But this ground of objection was waived by failing to raise it in the Court below. Collins v. Nave et al., at the present term (2). AH' defects in the complaint were thus waived, except those going to the jurisdiction of the Court, and the sufficiency of the facts stated to constitute a cause of action. Acts of 1855, p. 60.

No exception was taken to any ruling of the Court below; as there was no appearance, there could be none. If the defendant had appeared and failed to except, he would have been concluded by the action of the Court. He cannot better his situation by voluntarily abstaining from an appearance.

The decree is affirmed with 1 per cent. damages, and costs to be taxed to Miller.

This volume, post.

Ante, 209.