Ervin School Township v. Tapp

• Court: Indiana Supreme Court
• Writing for the Court: Mitchell, C. J.
• Citation: Ervin School Township v. Tapp, 121 Ind. 463, 23 N.E. 505 (Ind. 1890)
• Decision Date: 16 January 1890
• Docket Number: 13,994
• Parties: The Ervin School Township v. Tapp

23 N.E. 505

121 Ind. 463

The Ervin School Township v. Tapp

No. 13,994

Supreme Court of Indiana

January 16, 1890

From the Howard Circuit Court.

The judgment is affirmed, with costs.

J. C Blacklidge, W. E. Blacklidge and B. C. Moon, for appellant.

J O'Brien and C. C. Shirley, for appellee.

OPINION

Mitchell, C. J.

This was an action by Albert Tapp to recover the amount of four several promissory notes alleged to have been executed on behalf of Ervin township, in Howard county, in consideration of money furnished and received for the use of the township in erecting school-houses necessary for the accommodation of the pupils of the township, and for work and labor performed and materials furnished in erecting school-houses as above.

On the second day of the March term, 1887, an interlocutory judgment of default was taken against the defendant. On the third judicial day the plaintiff's damages were assessed and final judgment rendered against the defendant as upon default for the amount found due. On the thirtieth judicial day of the same term the school township, by its attorneys, appeared and moved the court for a new trial, assigning as causes therefor that the finding of the court was not sustained by sufficient evidence, that it was contrary to law, and that the amount of the recovery allowed was too large.

The motion for a new trial was struck out and rejected by the court. In this the court committed no error. Conceding that the promissory note of a township is not binding upon it unless it is alleged and proved that the note was executed in consideration of money actually received and used by and for the benefit of the township, or for other supplies suitable and reasonably necessary, which have been delivered to and accepted by the corporation; and, conceding further, that after an interlocutory default has been adjudged, the defendant may appear and contest the amount of the recovery, and move for a new trial in case the evidence fails to support the finding of the court in respect to the amount of damages assessed, still these concessions afford no aid to the appellant.

A defendant against whom a default has been taken may appear at any time before final judgment, and contest the amount which the plaintiff is entitled to recover. He may cross-examine the plaintiff's witnesses, and introduce evidence in his own behalf to reduce the amount of the plaintiff's claim. He may also ask instructions from the court, and move for a new trial in case he deems the amount of the recovery excessive. Briggs v. Sneghan, 45 Ind. 14. The difficulty with the appellant's case is that there was no appearance until after final judgment.

The question...