Millikan v. McAlpin

Spencer, J. This is an action by appellee Elbert A. McAlpin, as trustee, against appellant and the other appellees to foreclose a mortgage on certain real estate and machinery. Subsequent to the filing’ of his complaint and before the trial of the cause, plaintiff filed a petition to have a receiver appointed to take possession of said property during the pendency of the action and until the expiration of the year of redemption. The court granted said petition, after a hearing, and issued an interlocutory order appointing the receiver. This appeal follows. 1. Appellant makes no contention that the court erred in appointing a receiver to take charge of the real estate and to collect the rents and profits therefrom but insists that the order of the court improperly included the machinery in question. Appellant filed no motion for a new trial, however, and made no effort in the lower court to correct or modify the order. As is said in Bayless v. Glenn (1880), 72 Ind. 5,11: “Where any part of a judgment is valid, it will stand unless proper steps have been taken by objection duly presented to the trial court to secure a modification or amendment, by amending or rejecting the part which is wrong.” In Wood v. State, ex rel. (1892), 130 Ind. 364, 366, 30 N. E. 309, it was held that “if the court granted the appellee greater relief than he was entitled to under the evidence, and the appellant desired to avoid that portion of the judgment not sustained by the evidence, he should have moved to modify the judgment. ’ ’ See, also, Bristow v. McClelland (1890), 122 Ind. 64, 67, 22 N. E. 299. No question is properly presented for our determination, and the judgment is therefore affirmed. Note. — Reported in 104 N. E. 855. As to wkat judgments and orders may be appealed from, see 20 Am. St. 173.