Hessong v. Rosenstihl

Howk, J. In this action the appellee, as payee, sued the appellants, as makers, of a promissory note. Two of the appellants, Sassman and Conrad, though duly served with process, made default. The appellant Hessong answered in a single paragraph, setting up that he was a . surety merely on the note in suit, and that the appellee had, after the note became due, for a valuable consideration paid to [80] him by the principal of said note, extended the time on said note for one year, without the knowledge or consent of said Hessong. The appellee replied in two paragraphs to the answer of said Hessong, as follows : 1. A general denial; and, 2. Setting up affirmative matter, which we need not notice. The issues joined were tried by the court without a jury; and the court found for the appellee, against all the appellants, for the full amount due on the note, and judgment was rendered accordingly. All the defendants moved the court for a new trial, which motion was overruled, and to this ruling they excepted, and appealed from the judgment rendered to this court. The appellants have assigned in this court the following alleged ei’rors of the court below: 1. In rendering judgment for the appellee against the appellants; 2. In overruling their motion for a new trial; 3. In not rendering judgment in favor of the appellant Peter K. Hessong. The record fails to show that the appellants, or any of them, objected or excepted to either the form or substance of the judgment in the court below. Such objections, if they actually exist, but they do not in this case, cannot be made for the first time in this court. The appellants’ motion for a new trial is not in the record; and it appears from a memorandum of the clerk of the circuit coui't that such motion was not on file. "Without an inspection of the causes assigned for a new trial, it might be difficult for us to say, in some cases, whether the court did or did not err in overruling the motion for such new trial. But, in this ease, we can say [81] with positive certainty, that no error was committed in overruling the appellants’ motion. The evidence on the trial is properly in the record, and it fully sustains the finding of the court; and the bill of exceptions does not show that there was any error of law occurring at the trial which was excepted to by the appellants. There is no error in the record. The judgment is affirmed, at the appellants’ costs.