
    No. 7887.
    Martin, Sr., v. Martin et ux.
    
      Pleading. — Foreclosure of Mortgage. — Cross Complaint. — Demurrer.— In an action to foreclose a mortgage, a demurrer to a cross complaint, on the ground that it “does not state facts sufficient to prevent said plaintiff' from foreclosing said mortgage for the full amount of the debt due therein,” contains no cause for demurrer known to the statute, or that should be recognized in practice, and the exception to the overruling thereof presents no question.
    Practice. — Agreed Facts. — New Trial. — 'Where^a finding is rendered upon “agreed facts,” no reason for a new trial exists.
    
      ■Same. — Bill of Exceptions. — A bill of exceptions is necessary to bring to the Supreme Court the evidence adduced at a trial, whether oral testimony, writings, documents, agreed facts, or other form of proof. This rule does not apply to an agreed case under section 386 of the code. ¡Same. — The recital in a finding, that the “agreed facts” contain the evidence, is not a substitute for a bill of exceptions.
    
      Same. — Special Finding. — Bequest of Parties. — It is only when the special finding was made at the request of one or both of the parties, that exceptions to the conclusions of law stated present any question for the consideration of the Supreme Court.
    
      ■Same. — Form of Judgment. — An objection to the form of .a judgment will not be considered by the Supreme Court, unless it was brought to the . attention of the court below, by appropriate motion, at the time the judgment was entered, or, after its entry, by motion to modify and correct it.
    
      Same. — Supreme Court. — Issue on Appeal. — Trialby theBeaord. — Argument of Counsel. — To entitle an appellant to prevail in the Supreme Court, “error in the record” must be made “manifest” by the record, not by argument of counsel.
    
      Same. — Burden on Appellant. — Silence of Appellee. — While the Supreme Court will not go beyond the brief of the appellant to search the record in quest of errors not pointed out therein, the silence of the appellee on any point is not equal to an agreement to waive the point. The ■burden is on the appellant to show the error which he has assigned.
    From the Posey Circuit Court.
    
      A. P. Hovey and G. V. Menzies, for appellant.
    
      W. P. Edson, for appellees.
   Woods, J.

Suit by appellant against the appellees to foreclose a mortgage executed by them upon the land of the defendant Louis, his wife having no interest therein except as wife. Answer in general denial, and a separate answer, by way of cross complaint, by the defendant Elizabeth. To this the appellant demurred, on the ground that the same “does not state facts sufficient to prevent said plaintiff from foreclosing said mortgage for the full amount of the debt due therein.”

No such cause for demurrer is known to the statute, or should be recognized in practice. The exception to the overruling thereof presents no question. Buskirk’s Practice, 180. The pleading to which this demurrer was addressed was not used, nor perhaps designed, “to prevent said plaintiff from foreclosing said mortgage for the full amount of the debt due therein ;” and, as a decree for the full amount was awarded, it is evident the appellant was not harmed by the ruling of the court in that respect.

The case was submitted to the court for trial without a jury. The entry of the finding is, in part, as follows : “The court finds the following as the agreed facts in the above entitled cause, and which contain all the evidence in said cause.” Here follows a statement of facts and conclusions of law thereon, but the signature of the judge is not appended thereto. Immediately following is a motion for a new trial; but the causes alleged consist of objections to the conclusions of law, and do not come within the statutory causes for which a new trial can be granted. Indeed, there-could be no reason for a new trial, as the finding rendered was upon “agreed facts.” But, aside from these considerations, the evidence is not brought into»the record in the way provided by law, which is by a bill of exceptions. The recital contained in the finding, that the agreed facts contain the evidence, is not a substitute. There is no exception to-the rule that a bill of exceptions is necessary in order to-bring to this court the evidence which was adduced at atrial,, whether it consists of oral testimony, writings, documents, agreed facts, or whatever form of proof. This, of course,, does not apply to an agreed case under section 386 of the code. No exceptions were taken to the conclusions of law stated by the court. Indeed, the court was not requested by either party to make a special finding and state its conclusions. It is only when the special finding was made at the request of one of the parties or both, that exceptions to the conclusions of law stated present any question for the consideration of this court. Conwell v. Clifford, 45 Ind. 392 Smith v. Davidson, 45 Ind. 396; Weston v. Johnson, 48 Ind. 1; The Grover, etc., Co. v. Barnes, 49 Ind. 136; Smith v. Johnson, 69 Ind. 55.

It is equally well settled that an objection to the form of the judgment can not be considered by this court, unles's the objection was made at the time the judgment was entered,, and a motion was made, or other appropriate step taken,, to bring the matter to the attention of the court below, so. as to enable that court to enter the proper judgment in the first instance, or, after its entry, to modify and correct it. The appellant made no such objection to the original entry of judgment, nor any motion for the modification thereof. There is no error manifest in the record.

Judgment affirmed, with costs.

On Petition eor a Rehearing.

Woods, J.

Counsel for the appellant complain very earnestly, if. not bitterly, that this appeal has been decided on grounds not discussed or even suggested in the briefs. They say: “Without one word of warning, and without the points now ruled by this court having been noticed, referred or alluded to by counsel, either by the assignment of errors or his able and lengthy brief, the court goes into the record and passes upon two or three positions, unknown and unthought of by the judge below, or either of the counsel engaged in this case, and decides the rights of the parties on points never raised nor. discussed. This is a practice, we will he pardoned for saying, that has been heretofore entirely unknown to us.”

The counsel have greatly mistaken both the practice and the duty of this court. The issue tendered for our decision by the appellant in every case of appeal is, that “there is 'manifest error in the record,” in some specified particular or particulars. The appellee joins issue and says there is no error. The trial is by the record, not by the argument of counsel, and the appellant has no right to prevail, and we should be derelict in duty if we permittted him to prevail, unless the error is made manifest.

No matter what error the court below may have committed, it is not manifest in the record, unless saved in the lower court and presented in this court, in accordance with the rules of practice. These rules of practice are the law of the land, their reasonableness is justified by experience, and, unless ready to abrogate, we have no right to disregard, them. We never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in the brief; but the appellee, without filing any brief at all, is entitled to the benefit of everything in the record whiqh may prevent a reversal of the judgment upon the errors assigned ; and, because the counsel on both sides may discuss some question with very great learning and ability, as was ■done in this case, we are not therefore permitted to shut our ■eyes against the fact, which we can not otherwise help seeing, that the question is not in the l'ecord. The silence of the appellee on any point is not equal to an agreement to waive the point; the burden is on the appellant to show the error which he has assigned. Powell Appel. Proceed. 125-8.

If there are points in a record which counsel do not suggest, and we do not perceive them, there are numerous decisions that we will not consider such points on a petition. for a rehearing, but there is no rule which permits us to ig.nore what we do see. We read the briefs of counsel, but, as the appeal is tried by the record, we examine that too. See Heizer v. Kelly, 73 Ind. 582.

Effort is made to question some points of the decision made, but we do not perceive that, if a rehearing were granted, we could reach a different conclusion.

Petition overruled, with costs.  