Whetstone v. Davis. finding of the court, although the tenancy was not terminated by a notice to quit; for under either view no notice to quit was necessary. It appears by the evidence, that after the expiration of the first year, Whetstone continued in the possession, and held, as he supposed, under the lease, and without any new ar rangement between him and Davis; and if we are to infer from the evidence that Davis was consenting to Whetstone's continued possession, we also might infer that it was tacitly understood between them that a second yearly term was running; that the lease had been extended for another year by the mutual acquiescence and consent of the parties. Thus a new tenancy for another year, and not from year to year, was created, and Whetstone's right of possession terminated at the end of the second yearly term, without any notice to quit. Whetstone's continuance in possession after the expiration of the first year was, at most, notice to Davis of his election to continue for other year. Falley v. Giles, 29 Ind. 114. Of course, Davis was bound by his acquiescence in that possession for no greater length of time than another year. Before the expiration of the second yearly term, Davis, according to his testomony, notified Whetstone that he could not have the place any longer; that he wanted to take possession himself in the spring. This, although not such a notice as is required to terminate a tenancy from year to year, was a notice to Whetstone that a condition of things would not exist that would enable him, by the terms of the lease, to claim an extension for another year. Without a renewal of the lease, or some new agreement, or some election by Whetsone to continue another year, consented to or acquiesced in by Davis, Whetstone's rights effectually terminated at the end of the second year. What we have said is on the supposition that Davis con. sented to Whetstone's continued possession after the expiration of the first term. If Whetstone held on under the lease, and Davis consented thereto, and such consent is in no way Ralston v. Radcliff. explained, we think that there was an implied extension of the lease for another yearly term. But if, on the contrary, Davis did not consent (and this is the other view of the case), then Whetstone was a mere tenant at sufferance after the expiration of the first year, and notice to quit is not necessary to terminate such tenancy. We are of opinion that the finding is fairly sustained by the evidence. The judgment below is affirmed, with costs. M. K. Farrand and T. S. Cogley, for appellant. RALSTON V. Radcliff. PRACTICE.-County Commissioners.-Appeal.-Docketing Appeal.-Trial.-On an appeal by one to the circuit court from an order of the board of county commissioners allowing a claim filed by another before said board, the cause should be docketed in the circuit court in the names of the claimant and appellant, the former as plaintiff and the latter as defendant, and should be tried in the circuit court de novo; and if on the trial no evidence be offered, the appeal should not be dismissed, but the cause should be decided on the merits for the appellant. APPEAL from the DeKalb Circuit Court. DOWNEY, J.-Radcliff filed a claim before the commissioners of DeKalb county, which was allowed. Ralston, on affidavit and bond filed, appealed to the circuit court, from the order of allowance. In the circuit court the case appears to have been wrongly docketed as Samuel W. Ralston v. John F. Radcliff. A bill of exceptions, signed by the judge of the circuit court, shows that when the case was called for trial in that court, "Radcliff offered no evidence whatever, whereupon the said Ralston, by his attorney, announced that they would offer no evidence, and thereupon the court dismissed. VOL. XXXIV.—33 White and Others v. Garretson and Another. the appeal, on the ground that the appellant had the burden of proof thrown upon him." Ralston excepted, and appealed to this court. This ruling was wrong. The case should have been dockected in the circuit court as Radcliff v. Ralston, should have been tried de novo, and if no evidence was offered, should have been decided on the merits for Ralston, the appellant. The judgment is reversed, with costs, and the cause remanded. WORDEN, J., having been concerned as counsel in the cause, was absent. F. L. Worden. F. Morris, and W. H. Withers, for appellant. WHITE and Others v. GARRETSON and Another. SUPREME COURT.-Demurrer.-Amendment.—Where, a demurrer to a paragraph of a reply having been sustained, the plaintiff, by leave of court, has amended said paragraph, and the cause has been tried with the amended paragraph as a part of the pleadings, no question can be raised in the Supreme Court upon the ruling on said demurrer. SAME.-Demurrer.-Withdrawal of Pleading.-Where, a demurrer to a paragraph of an answer having been overruled, the defendant, by leave of court, has withdrawn said paragraph before trial, no question can be raised in the Supreme Court upon the ruling on said demurrer. SAME.-Assignment of Errors.-New Trial.-Where the overruling of a motion for a new trial is not assigned as error, the Supreme Court will not consider any error in relation to giving or refusing to give instructions to the jury, or to propounding to the jury or withholding therefrom special interrogatories. APPEAL from the Warren Circuit Court. WORDEN, J.-This was a petition for partition by the ap pellants against the appellees and others. The appellees were made defendants on the ground that they claimed some interest in the land severally. They answered, setting up title in the appellee Ezekiel Garretson to a part of the land White and Others v. Garretson and Another. sought to be parted. Issue was joined, and the cause as to appellees was tried separately from the other parties. Verdict and judgment for the appellees. There are four errors assigned. The first is in sustaining the appellees' demurrer to the first paragraph of the appellants' reply; the second and third relate to giving and refusing instructions, and to propounding and withholding special interrogatories; the fourth is in overruling a demurrer to the third paragraph of the defendants' answer. The record sets out the first paragraph of the appellants' reply, and shows, also, that a demurrer was sustained to it; but it further shows that after the demurrer was sustained, the appellants took leave to amend, and did amend it. The record speaks thus: "Come the parties by their attorneys, and the court grants the plaintiffs leave to amend the first and sixth paragraphs of their reply herein, and the plaintiffs now amend their reply herein by interlineation," &c. After this amendment no demurrer was filed to it. The reply set out in the transcript is, beyond doubt, the reply as amended by the interlineation; and, althougth the evidence is not in the record, the charges of the court and the interrogatories propounded to, and answered by, the jury indicate that the reply was regarded as part of the pleadings, and that the appellants had the full benefit of it as such. This disposes of the first assignment of error. The fourth assignment stands upon no better foundation. The record shows that the court overruled a demurrer filed by the plaintiffs to the third paragraph of the defendants' answer; but it further shows that subsequently, and as the parties were about to enter upon the trial of the cause, the defendants, with the leave of the court, withdrew that paragraph. The second and third assignments of error embrace such matters only as should have been made the foundation of a motion for a new trial. This was done, but no error is assigned on the overruling of the motion. In order to present the questions sought to be raised, it was necessary to have as Barnes and Others v. Smith. signed error on the overruling of the motion for a new trial. This was held at least three times by our immediate predecessors, and once by the bench as now constituted. Whitinger v. Nelson, 29 Ind. 441; Herrick v. Bunting, id. 467; Smith v. Crigler, id. 516; and Tyner v. Adams (ante, p. 401), at the present term of this court. We find no error in the record for which the judgment ought to be reversed. The judgment below is affirmed, with costs. F. M. Butler, F. McCabe, B. F. Gregory, and F. Harper, for appellants. Z. Baird and W. P. Rhodes, for appellees. BARNES and Others v. SMITH. PRACTICE.-Default.—Motion to Set Aside.—Rule of Court.-Judgment having been rendered by the court of common pleas against the defendant in a suit on a promissory note, he moved that the default be set aside, and that he be allowed to answer, on the ground (disclosed by his affidavit and that of his attorney) that the attorneys for the parties had agreed by parol, out of court, that there should be a judgment for the plaintiff, by default, but that it had been taken for a larger sum than that mentioned in said agreement. A rule of said court provided that admissions or agreements about the proceedings in a cause would not be enforced, or the time of the court be permitted to be used in discussing them, unless in writing, or made of record, or in presence of the court. Held, that under said rule and the statute, 2 G. & H. 328, sec. 772, there was no error in overruling said motion. SAME.-Amendment.-Demand of Judgment.-In said cause, at or after said default, the complaint was amended so as to claim a larger sum as the amount of the judgment. The amount of the judgment taken was authorized by the terms of the note in suit. Motion by the defendant, which was overruled, to strike out the larger sum and restore the smaller, the defendant's attorney, in an affidavit filed by him in support of said motion, stating his belief that the alteration had been made without leave of court. Held, that it was immaterial in the Supreme Court whether said amendment was made or not in the court below. |