
    Davis v. Engler and Others.
    A judgment will not be reversed where there was a trial without an issue, unless the proper steps are taken below to make the error available in this Court.
    APPEAL from the Shelby Common Pleas.
   Hanna, J.

Suit on note. Answer: 1. Denial. 2. and 3. Usury. Demurrer sustained to the third, and overruled to the second paragraph. Ho reply filed. Trial; finding for plaintiff. Motion for a new trial, for the reason that the ruling on demurrer to the third paragraph of the answer was wrong. Judgment on the finding.

It is now urged, that, as there was no reply to the second paragraph of the answer, there was a trial without an issue, and that the same was an error affecting the whole judgment, or at least the costs.

The first question is whether the appellant can now complain of this proceeding; the same not having been assigned as a cause for a new trial, nor a motion having been made to conform the judgment to the pleadings, notwithstanding the said finding. It appears to us, that the record does not show that such steps were taken, as would secure to the defendant the fruits of the plaintiff’s neglect, which, with proper diligence, might have been gathered. There was no motion involving the sufficiency of the evidence to support the verdict, nor questioning the amount of finding.

T. A. McFarland, for the appellant.

Davis, Wright $ Green, for the appellees.

As to the ruling on demurrer. The second paragraph of the answer set up that the plaintiff contracted for, and received usury in said note to the amount of 17 dollars and 70 cents. The third paragraph averred that the note sued on was executed in renewal of another note; and that in the former note, usurious interest had been received to the amount of 16 dollars and 60 cents, which, with the 17 dollars and 70 cents received on this note, made together the sum of 34 dollars and 30 cents, so usuriously contracted for.

It appears to us that the retention of the usurious interest contracted for by the original note, does not plainly appear in the second paragraph to have been relied upon as a defence; and therefore that paragraph did not cover all the matters of defence attempted to be set up in the third. The demurrer should have been overruled to said third paragraph.

Per Curiam.

The judgment is reversed, with costs. Cause remanded.  