
    Henly and Another v. Kern and Others.
    Where trial is had below, without an issue being made on an affirmative answer of the defendant, the error will not be noticed in this Court, unless a motion for a new trial or in arrest of judgment is made below.
    
      Wednesday, December 19.
    
    APPEAL from the Wayne Circuit Court. _
   Per Guriam.

This was an action by the appellees against the appellants, to foreclose a mortgage. There was an answer filed, containing several affirmative paragraphs, to which no replications were filed. The cause was submitted to the Court for trial, which resulted in a finding and judgment for the plaintiffs. The defendants appeal, and assign for error, that there was a trial without an issue, and that the finding and judgment should have been in favor of the appellants, and not the appellees. There was no objection made below to the proceedings. No motion was made for a new trial, or in arrest of judgment. If the affirmative paragraphs of the answer were, as a matter of evidence, to be ucwien as true, and if the Court was wrong in finding against them, a new trial should have been moved. If the paragraphs, viewed as matters of record, entitled the defendants to judgment, notwithstanding the finding, or to arrest the judgment, the proper motion should have been made. At least some objection should have been made to the rendition of judgment for-the plaintiffs, which was not done. In the language of counsel for the appellee, “this Court will not grant to appellants that redress they failed to seek in the Court below.” Martindale v. Price, 14 Ind. 115, is directly in point.

J. S. Newman, J. II. Siddall and L. Develin, for appellants.

N. II. Johnson, for appellees.

The judgment below is affirmed, with costs and 1 per cent, damages.  