Spencer v. Russell

9 Ind. 157

• Court: Indiana Supreme Court
• Decided: May 29, 1857
• Status: Published

Opinion

Per Curiam.

Suit upon a contract for the return of cat-tie, &c. Issue of fact upon the question of return. Trial by the Court. Judgment for the plaintiff with costs.

The defendant below seeks to reverse the judgment, because it is unsustained by the evidence. No motion for a new trial was made, nor was a case prepared under section 341, 2 R. S. p. 115. Hence, no question on this point is presented. Addleman v. Erwin, 6 Ind. R. 494

(1).

It is also objected that the defendant below should have recovered costs; and the clerk states that a motion to that effect was made in the Common Pleas. This is all the evidence we have that such a motion was made. It is not sufficient. There should have been a bill of exceptions. Richardson v. The St. Jo. Iron Co. 5 Blackf. on p. 149.

Perhaps if the defendant had filed his motion in writing, stating the grounds of it, and the Court had overruled it, the case might have been brought within section 345, 2 R. S. p. 116. It would have stood, in that event, like the decision of the Court upon a demurrer.

The judgment is affirmed with 10 per cent, damages and costs.

Doe v. Herr, 8 Ind. R. 23, 24.