Martin v. Martin

74 Ind. 207, 1 Ind. L. Rep. 211

• Court: Indiana Supreme Court
• Decided: May 15, 1881
• Docket: No. 7887
• Status: Published

Opinions

Woods, J.

Suit by appellant against the appellees to foreclose a mortgage executed by them upon the land of the defendant Louis, his wife having no interest therein except as wife. Answer in general denial, and a separate answer, by way of cross complaint, by the defendant Elizabeth. To this the appellant demurred, on the ground that the same “does not state facts sufficient to prevent said plaintiff from foreclosing said mortgage for the full amount of the debt due therein.”

No such cause for demurrer is known to the statute, or should be recognized in practice. The exception to the overruling thereof presents no question. Buskirk’s Practice, 180. The pleading to which this demurrer was addressed was not used, nor perhaps designed, “to prevent said plaintiff from foreclosing said mortgage for the full amount of the debt due therein ;” and, as a decree for the full amount was awarded, it is evident the appellant was not harmed by the ruling of the court in that respect.

The case was submitted to the court for trial without a jury. The entry of the finding is, in part, as follows : “The court finds the following as the agreed facts in the above entitled cause, and which contain all the evidence in said cause.” Here follows a statement of facts and conclusions of law thereon, but the signature of the judge is not appended thereto. Immediately following is a motion for a new trial; but the causes alleged consist of objections to the conclusions of law, and do not come within the statutory causes for which a new trial can be granted. Indeed, there-could be no reason for a new trial, as the finding rendered was upon “agreed facts.” But, aside from these considerations, the evidence is not brought into»the record in the way provided by law, which is by a bill of exceptions. The recital contained in the finding, that the agreed facts contain the evidence, is not a substitute. There is no exception to-the rule that a bill of exceptions is necessary in order to-bring to this court the evidence which was adduced at atrial,, whether it consists of oral testimony, writings, documents, agreed facts, or whatever form of proof. This, of course,, does not apply to an agreed case under section 386 of the code. No exceptions were taken to the conclusions of law stated by the court. Indeed, the court was not requested by either party to make a special finding and state its conclusions. It is only when the special finding was made at the request of one of the parties or both, that exceptions to the conclusions of law stated present any question for the consideration of this court. Conwell v. Clifford, 45 Ind. 392 Smith v. Davidson, 45 Ind. 396; Weston v. Johnson, 48 Ind. 1; The Grover, etc., Co. v. Barnes, 49 Ind. 136; Smith v. Johnson, 69 Ind. 55.

It is equally well settled that an objection to the form of the judgment can not be considered by this court, unles's the objection was made at the time the judgment was entered,, and a motion was made, or other appropriate step taken,, to bring the matter to the attention of the court below, so. as to enable that court to enter the proper judgment in the first instance, or, after its entry, to modify and correct it. The appellant made no such objection to the original entry of judgment, nor any motion for the modification thereof. There is no error manifest in the record.

Judgment affirmed, with costs.