Hill v. Donaldson

Newcomb, J. The plaintiff sued to enforce a mechanics’ lien on the real estate of the defendant, to discharge an alleged indebtedness of one Jacob Coffman to plaintiff, for lumber furnished the former, and used in the construction of a dwelling house, erected by Coffman for the defendant. There was a jury trial, a finding for the defendant, and judgment in his favor over plaintiff’s. motion for a new trial. The plaintiff appealed to the General Term, and assigned the following errors: 1. The overruling of plaintiff’s demurrer to sixth paragraph of defendant’s answer. [353] 2. The refosal of the Court to permit the plaintiff to prove certain items of his lumber account. 3. That the verdict is not sustained by sufficient evidence. 4. That the verdict was contrary to law. 5. That the charge of the Court was error in law. None of these' assignments, save the first, present any questions of law on appeal. They were proper grounds for a motion for a new trial, and were presented as such at Special Term. An exception was duly taken to the refusal of the Court to grant a new trial, but that ruling is not assigned for error. We cannot, therefore, consider these alleged errors occurring at the trial. . Whitinger v. Nelson, 29 Ind., 441; Herrick v. Bunting, Ib., 467 ; Smith v. Crigler, Ib., 516 ; Lingerman v. Nave, 31 Ib., 222; Stillwell v. Chappell, 30 I b., 72. There is a bill of exceptions in the record, setting out the evidence given on the trial of the cause; and it appears from the bill of exceptions-that no evidence was given or offered in support of the sixth paragraph of the answer, consequently it is not necessary to decide as to the correctness of the ruling on the demurrer to that paragraph, as it is manifest that the plaintiff was in no respect injured thereby. The judgment at Special Term is, therefore, affirmed, with, costs.