Harrington v. Luddington

23 Ind. 542

• Court: Indiana Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinion

Rat, Ch. J.

Trial before justice of the peace, and finding for the plaintiff. New trial granted, without the required notice to the plaintiff being shown by the record to have been given. On the day set for the new trial, the plaintiff by his counsel appeared, and moved to set aside the order granting the new trial. This motion was overruled, and the plaintiff, after having his motion entered upon the record, withdrew from the court. Judgment . was entered for the defendant. An appeal was taken by the plaintiff to the Circuit Court, and without any motion for relief in the Circuit Court from any errors the justice may have committed, and without asking to have proceedings subsequent to the first trial set aside, he proceeded to a trial upon the merits, and was defeated. He then attempted to obtain relief from the action of the justice, and upon its refusal appeals to this court. "Whatever errors may have occurred before the justice, and we do not decide that there were any, were waived by the appellant when he submitted, in the Circuit Court, to a trial de novo. He took the case by appeal to the Circuit Court, and sought the benefit of a finding and judgment in that court. He must rest content with its results.

George A. Johnson and Lafe Bevelin, for appellant. William, S. Ballenger, for appellee.

Judgment affirmed, with ten per cent, damages.