
    Smith and Others v. Groverman and Others.
    The plaintiff in this case obtained leave to amend, and was ordered to file his amendment thirty days before the first day of the next term. He filed it only ten days before that time. At that term, upon rule granted, the defendant failed to plead to the amendment. Judgment for the plaintiff. No motion was made to strike the amendment from the files, nor was any exception taken. Held, That as in our practice we have no rule days, no default could have been entered for failing to file the amendment according to the order; and the Court might permit it to be filed afterwards, and regard the question of time as waived.
    APPEAL from the Vigo Circuit Court.
    
      Monday, June 8.
    
      R. TV. Thompson, for the appellants.
    
      S. B. Gookins, for the appellees.
   Perkins J. —

This was a creditor’s bill, filed under the old practice, but brought to hearing under the new. Answers were filed. The plaintiffs asked leave to amend. Leave was granted, and it was ordered that the amendment be filed thirty days before the first day of the next term. The cause was continued. The amendment was filed, but only ten days before the first day of the succeeding term. At the term, a rule was granted upon tfie defendants to answer the amendment td the bill. No answer was filed, and' the entry upon the record next succeeding the amendment is: “ Come now again the parties, and this cause is submitted to the Court upon the bill, answers, and proof, and the evidence being/’ &c., the Court finds, &c., and decrees, &e. '

No motion was made to strike from the files the amendment to the answer, and no exception was taken to any ruling of the Court, or to the final decree.

As we have in our practice no rule days, no default could have been entered for failing to file the amendment to the bill thirty days before the Court; and the Court could permit it to be filed afterwards. And where it should be so filed, but before the sitting of the Court, as in this case, and no motion is made by the opposite party to strike it from the files, the Court would hardly, mero motn, set it aside, but would rather regard the question of time as waived.

This being so, the record presents no question for examination by this Court.

Per Curiam.

The decree is affirmed, with 10 per cent, damages and costs.

Gookins, J., was absent.  