Scoville v. Chapman

• Decision Date: 12 December 1861
• Citation: 17 Ind. 470
• Parties: Scoville and Others v. Chapman
• Court: Indiana Supreme Court

17 Ind. 470

Scoville and Others v. Chapman

Supreme Court of Indiana

December 12, 1861

APPEAL from the Lagrange Common Pleas.

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

J. E McDonald, A. L. Roache and R. Parrett, for the appellants.

A Ellison, for the appellee.

OPINION

Worden J.

This was an action by the appellee against Scoville, Jones and Shirts, to recover for work and labor done, and materials furnished; and to enforce a mechanic's lien on a saw-mill and premises, on which the labor had been done, and for which the materials were furnished. Issues were formed, and the cause tried by a jury.

After the jury had been sworn, and the evidence offered, the plaintiff filed a dismissal of the cause as against Jones and Shirts, so far as it was sought to obtain a personal judgment against them, but retained them as defendants, so far as it was sought to enforce the lien on the premises. The defendants objected and excepted to such dismissal, the Court permitting the same to be entered. There was no error in this. Code, § 99; Taylor et al. v. Jones, 1 Ind. 1.

The effect of the proceeding was simply an abandonment of any pretended right to recover against Jones and Shirts a personal judgment for the labor and materials; claiming the right to enforce the lien as against them, however, and leaving them before the Court to protect their interests in the premises, if they had any. This, it seems to us, can not be error.

Verdict and judgment against Scoville, with the usual order enforcing the lien.

After the action above noted was had in relation to Jones and Shirts, an affidavit was filed, on which a continuance was applied for; but the application was overruled, and exception taken. There was no motion for a new trial on the ground of error in refusing a continuance; hence, this point need be no further noticed. Kent v. Lawson, 12 Ind. 675.

It is objected that incompetent evidence was permitted to go to the jury. A new trial was not asked on this ground.

The reasons filed for a new trial are as follows: 1. "For irregularities in the proceedings of the Court, and abuse of the discretion of the Court, by which the defendants were prevented from having a fair trial. 2. On account of accident and surprise which ordinary prudence could not have guarded against. 3. Because the verdict is not sustained by sufficient evidence, and is contrary to law. 4. Errors of law...