Weaver v. Cheeseman

15 Ind. 510, 1860 Ind. LEXIS 508

• Court: Indiana Supreme Court
• Decided: December 8, 1860
• Status: Published

Opinion

Per Curiam.

Augustus, Weaver executed one mortgage on a lot of ground, his wife not joining therein. He executed another mortgage on the same lot, his wife joining therein. Roth mortgages became due, and a suit to foreclose was instituted. Weaver’s wife was made a party.

O. P. Morton, J. F. Kibbey and W. H. Johnson, for appellants. George W. Julian, for appellee.

(1.) Petition for rehearing filed January 10, and overruled May 9, 1861.

The judgment was against Weaver, with a clause barring the wife, if a sale took place to make the amount secured by the mortgage in which she joined. This was all right. If the amount of the judgment upon that mortgage should be paid before sale, she would not lose her interest in the land.

It is said an execution issued before the record was signed, and before final judgment was entered. Such an execution might be recalled on motion, but would not make the final judgment erroneous, when entered.

A Court may supply an omission to sign a record, by signing it nunc pro tuno, a proper case being made.

The judgment is affirmed, with 5 per cent, damages and costs.