
    Willis Warner v. C. W. Hutchinson.
    Costs — Scope of Allowance.
    A party held to have no right to complain that costs. were not allowed him up to the time of the release of mortgage.
    Pleading — Filing.
    Papers held to he regarded as having been filed.
    Sales — Evidence.
    The evidence 'held not to show delivery of a certain amount of lumber.
    APPEAL PROM HARRISON CIRCUIT COURT.
    December 17, 1872.
   Opinion by

Judge Lindsay:

Appellant has no right to complain that costs were not allowed him up to the time of the release by Ecklar of his mortgage. At the time he was sued he owed on the mill and other property sold to him by Hutchinson a much larger amount than was due on the mortgage. No fraud was practiced on him1 in the sale; he knew of the existence of the mortgage, and relied upon Hutchinson to remove it, and there is nothing in this record tending to show that Hutchinson so failed to keep his agreement to do so, as to damage or endanger appellant.

J. T. McClintock, for appellant.

J. Q. Ward, for appellee.

It is also evident that the reply lodged with the papers of the suit was regarded and treated by both parties as filed. Otherwise appellant would not have taken the numerous depositions to sustain his counterclaim. Under the proof this counterclaim was properly disallowed.

Appellant fails to establish the delivery to Hutchinson of $200 or $240 worth of lumber after the measurement by Dill. The evidence of his own interests is unsatisfactory and entitled to but little consideration, and the proof as to hisi absence in Grant County at the time it is pretended this lumber was delivered, connected with the testimony of the parties having the mill at the same time, shows that it is almost impossible that any such delivery would have been made.

The testimony fully sustains the judgment of the court below. It is therefore affirmed.  