Hessong et al. v. Rosenstihi.

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 errors 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 court 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 case, we can say

Smock v. Ripley.

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.

SMOCK V. RIPLEY.

PROMISSORY NOTE.-Attorney's Fees.-An unconditional stipulation in a promissory note, providing for the payment of attorney's fees, is valid.

From the Marion Circuit Court.

H. C. Allen, for appellant.

S. J. Peelle, for appellee.

NIBLACK, J.-This was an action by William I. Ripley, against William C. Smock, before a justice of the peace, on a promissory note, as follows:

"$171.50.

66

INDIANAPOLIS, January 4th, 1876. Thirty days after date I promise to pay to the order of W. I. Ripley one hundred and seventy-one dollars and fifty cents and ten per cent. attorney's fees, negotiable and payable at the Merchants National Bank of Indianapolis, Indiana. Value received, without any relief from valuation or appraisement laws, with interest at ten per cent. per annum from date. *

* * "WM. C. SMOCK."

*

There was a judgment for the plaintiff before the justice. On appeal to the circuit court, there was a finding for the plaintiff for the amount of the note with interest, including VOL. LXII.-6

Bridgewater et al. v. Bridgewater et al.

ten per cent. for attorney's fees, and, over a motion for a new trial, a judgment was rendered against the defendant on the finding.

The only objection urged to the finding of the court on the motion for a new trial was the allowance of the attorney's fee provided for in the note, upon the alleged ground that under the act of March 10th, 1875, Acts 1875, Reg. Sess., p. 4, the agreement to pay such attorney's fees was illegal and void, and that objection presents the only question discussed in this court.

In the case of Churchman v. Martin, 54 Ind. 380, it was, upon full consideration, held, that an unconditional promise contained in a promissory note to pay a stipulated per centum for attorney's fees was valid and binding, and might be enforced by proper legal proceedings.

The promise in the note before us to pay attorney's fees was an unconditional promise, and hence, under the authority of that case, was one that might be enforced.

The judgment is affirmed, at the costs of the appellant

BRIDGEWATER ET AL. v. BRIDGEWATER Et al.

SUPREME COURT.-Instruction.-New Trial.-Assignment of Error.-Error in giving or refusing to give an instruction to a jury is ground for a new trial, but can not be assigned independently as error, on appeal to the Supreme Court.

SAME.-Weight of Evidence.-Where there is evidence tending to support the verdict of a jury, the Supreme Court will not disturb it on the mere weight. of evidence.

SAME.-Trial.-Verdict after Expiration of Term.-Where a trial is commenced during a term of court, it may be continued beyond the term until it is completed.

From the Orange Circuit Court.

Bridgewater et al. v. Bridgewater et al.

A. J. Simpson, for appellants.

S. H. Buskirk and J. W. Nichol, for appellees.

NIBLACK, C. J.-This was an action by Daniel Bridgewater and others against Elias Bridgewater and others, to set aside what purported to be the last will, together with the probate thereof, of Isaac Bridgewater, deceased, and to revoke the letters of administration with such will annexed, which had been granted on his estate to Lemuel Pickens, one of the defendants, on the ground that the decedent was not of sound mind at the time of the execution of the alleged will.

The answer was in general denial.

The cause was twice tried in the court below, each trial resulting in a verdict for the plaintiffs.

Upon the return of the last verdict the defendants moved the court for a new trial, and assigned as causes, and the only causes, the following:

1. That the verdict was contrary to law;

2. That the verdict was contrary to the evidence;

3. That the verdict was not sustained by sufficient evidence;

4. For error of the court in receiving the verdict of the jury after the expiration of the term of the court at which the cause was tried, such term having expired at midnight on Saturday the 13th day of November, 1875, and the verdict not having been received until Monday the 15th day of the same month.

But the motion was overruled, and the court rendered judgment setting aside the alleged will, and revoking the letters of administration issued to Pickens under said will, as above stated.

The appellants have assigned for error here:

1. That the court below erred in overruling their motion for a new trial;

Bridgewater et al.v. Bridgewater et al.

2. That the court below erred in its instructions given to the jury;

3. That the court below erred in refusing to give instructions numbered eight (8) and nine (9), prayed for by the appellants.

The giving of improper instructions by the court trying a cause, and the refusal of such court to give proper instructions when prayed for in due form, constitute errors of law occurring at the trial, for which a new trial ought to be granted, when exceptions are duly reserved; but, when such errors are not presented as causes for a new trial, they are waived, and no question upon any such instructions arises on appeal to this court. Corbin v. Sullivan, 47 Ind. 356; Douglass v. Blankenship, 50 Ind. 160; Sutherland v. Venard, 34 Ind. 390.

The assignment of error in this court upon what was, or what might have been, a cause for a new trial in the court below, presents no question for our decision here. Claflin v. Dawson, 58 Ind. 408; Grant v. Westfall, 57 Ind. 121, Gregory v. Schoenell, 55 Ind. 101; Douglass v. Blankenship,

supra.

Therefore, neither the second nor the third assignment of error in this case presents any question for decision in this court.

Under the first assignment of error such questions only are presented as arise upon the causes assigned for a new trial.

The objection, that the court erred in receiving the verdict of the jury after the close of the term during which the cause was submitted to them, is not well sustained.

In the first place, the record does not show any objection to the reception of the verdict when it was returned. In the next place, this court has decided that a trial commenced during a term of a circuit court may be continued beyond the term if necessary to complete it. Wright v. The State, 5 Ind. 290.