Jarboe v. Kepler

4 Ind. 177, 1853 Ind. LEXIS 51

• Court: Indiana Supreme Court
• Decided: May 31, 1853
• Status: Published

Opinion

Stuart, J.

It appears that Kepler had recovered a judgment at law against Jarboe, and that there had been a return of nulla bona. The notes which were the foundation of the recovery at law, had been given in the purchase of certain lands. The bill now before us seeks to subject the equity of Jarboe in these lands to execution.

In his answer, Jarboe claims that the recovery at law is for more than was due; that certain payments had been made by him which were not credited; that trusting to the assurances of Kepler that the credits were all properly given, he suffered the judgment to pass without examining the notes. The credit claimed by Jarboe, is 24 dollars and 33 cents. The Court sustained the exception taken to this part of the answer. Decree in favor of Kepler for 1,046 dollars and 98 cents, &c.

J. B. Julian, for the appellant. J. S. Newman and J. P. Siddall, for the appellee.

We are of opinion that Jarboe is not entitled to the relief sought, even if the mode in which he presents his case is waived. His defence was properly at law. He had his day in Court. If he neglected to examine the notes and avail himself of all proper credits, when he had an opportunity to do so, he is not in a position to seek relief in chancery. Parker v. Morton, 5 Blackf. 1, and the authorities there cited. Nor does Jarboe bring himself within any of the exceptions to this rule.

Per Curiam.

The judgment is affirmed with costs.