Beard v. First Presbyterian Church of Peru

Hanna, J.

This proceeding was commenced by filing, in the form of an account for subscription for the erection of a church edifice, in the office of the clerk of the Common Pleas Court, a claim against the estate of Driver. It was entered on the appearance-docket, and Cole, the admin *569 istrator of Driver, allowed it, without making cost or objecting. At the next term of the Court, Beard and wife, having become administrators, &c., of the estate of Driver, moved the Court to set aside the allowance, which motion was granted, and by agreement, the claim was transferred to the issue-docket, and, without any further pleadings, tried by the Court. Finding for plaintiff the amount of the subscription, 100 dollars. Motion for a new trial overruled. Two exceptions were taken — one to the ruling of the Court on the motion for a new trial, and the other in regard to the judgment for cost's.

The sufficiency of the evidence is attempted to be questioned; but we cannot consider that point, for the reason that the bill of exceptions, after setting forth what purports to be the evidence of certain witnesses, states as follows: “ Which was all the evidence offered in the case.” Other evidence might have been given, which was not offered by either party. This does not comply with the rule (1) .

One Rex was introduced as a witness, on the trial, in behalf of the defendants. One of the reasons filed for a new trial was newly discovered evidence. The affidavit of this witness was produced upon that point, and shows that he would, if he had been more minutely examined, have testified more in detail in reference to the points upon which he and Stutesman, a witness for plaintiff, had testified. There is nothing in the record showing that the defendants were not aware of the facts of which he might have "testified, nor is anything in reference to diligence shown. The affidavit was insufficient.

It is assigned as error that the complaint is not sufficient. There was no demurrer to it. By agreement the case was tried .upon it; and as it is sufficient to bar another suit for the same cause, it is now too late, for the first time, to make the objection to its sufficiency in this Court.

As to the question of costs, we think that the order was right,'as no costs had been made by the, first administrator, nor, indeed, any, previous to the setting aside the allowance, so far as we are informed by the record.

N. O. Ross and R. P. Effinger, for the appellants. J. A. Beal and J. W. Gordon, for the appellee.

Per Curiam. — The judgment is-affirmed with costs.- See Manly v Hubbard, 9 Ind. R. 239, and note 2 to that case.