Payne v. McClain

7 Ind. 139

• Court: Indiana Supreme Court
• Decided: December 1, 1855
• Status: Published

Opinion

Stuart, J.

MecClain filed his complaint against Payne and Ross, to foreclose a mortgage given to secure the payment of 2,000 dollars.

The complaint is in the usual form, setting out the contract, and appending the notes and mortgage as exhibits.

In an amendment to the complaint, a further indebtedness of 230 dollars is set up, which is alleged to be a further and additional part of the purchase-money of the mortgaged premises, and not included in said notes. McClain sets it up as a lien on the land, and insists that he is entitled to a judgment for the 230 dollars, with interest from the date of the mortgage.

Notice by publication appears from the record to have been duly made, in conformity to the statute. 2 R. S., p. 35.

Payne and Ross were defaulted, and judgment was rendered in accordance with the prayer of the complaint.

After the rendition of the judgment, and during the same term of the Court, Payne and Ross appeared by their attorneys, and prayed an appeal to this Court.

The errors assigned are, that the Court rendered judgment against the defendants on insufficient notice, and that the Court rendered judgment upon the claim set out in the amended complaint, and made it a lien on the land. But the positions taken against the judgment below are not argued or supported by authority. Even these objections may therefore be regarded as waived.

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.