Gower v. Howe

20 Ind. 396

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Hanna, J.

Suit on a note, and to foreclose a mortgage. Demurrer to the complaint, assigning a special cause, to wit, that one Cable was not made a party — overruled.

The point 'made upon this ruling is, that as Cable was shown to be the assignor of the note, he could not transfer the mortgage, at that time, so as to enable the assignee to sue in his own name; and therefore he should have been a party to answer to the assignment, &c. It is a sufficient answer to this, that the assignment of the note — the evidence of the debt — carried with it the security, the mortgage.

Robert Parrett and A. B. Kennedy, for the appellant.

The defendant applied for a change of venue to another county, which was granted upon payment of costs, &c. At the next term of the Court, the defendant had not perfected his change — had not complied with the condition by paying the costs and filing a transcript within the time specified. He had lost his right to the change, under that application, and the Court was not, as he supposes, deprived of jurisdiction, and was, so far as we can see, right in proceeding to the trial in the absence of any sufficient reason to prevent it.

It is now, for the first time, objected here, that a copy of the mortgage does not appear in the record. No such question was made in any form in the Court below, and wffiether 'it could be raised here now, we need not say, as an amended-record supplies the defect.

Per Curiam.

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