Leary v. Smith

Howk, J. In this case, the appellants, the defendants below, have appealed to this court from the judgment of the Marion Superior Court, in general term, and have endorsed upon the record the following assignment of errors: [91] “The appellants, by counsel, come and say that the court below erred in this cause, as shown by the within record: “1st. In overruling appellants’ motion to set aside default .and publication of notice, in the Boone Circuit Court. “2d. In overruling appellants’ motion to set aside default and publication of notice in the Marion Superior Court. “ 3d. In refusing Honora Leary a change of venue from the Marion Superior Court, and from the judge. “ 4th. In refusing to grant a new trial of the cause.” It will be observed, that not one of these supposed errors is based upon the action or decision of the court, in general term. In appeals to this court from the Marion Superior Court, it has been uniformly held, that the only proper assignment of error here is, that the court, in general term, had erred in its decision in affirming or reversing, as the case might be, the judgment of the court at special term. Such an assignment of error will bring before this court the errors assigned in the court below, in general term, and none other; and, without such an assignment of error here, no question will be presented for the decision of this court. Wesley v. Milford, 41 Ind. 413; Cline v. Love, 47 Ind. 258; Coffin v. Campbell, 68 Ind. 452; Beineke v. Wurgler, 77 Ind. 468. The obvious reason for these decisions is, that the statute, under which the Marion Superior Court is organized, does not provide for any appeal from any order or judgment of the ■court, at special term, directly to this court; but, in section 27 of the statute, it is provided that “Any party may appeal to the Supreme Court from the order or judgment of general term,” etc. 2 R. S. 1876, p. 27; section 401, Civil Code of 1881; section 1362, R. S. 1881. We find no available error in the record of this cause. The judgment is affirmed, with costs.