
    No. 8752.
    Wood v. Eckhouse et al.
    Beal Estate. — Action to Recover. — Practice.—In an action for the recovery of possession of real property, no error is committed in striking out a special paragraph of answer when there is on file an answer of general denial; for under that all defences to the action may he given.
    
      Same. — Costs.—Judgment.—In such action, it is not error to render a judgment for costs collectible without relief from appraisement laws.
    From the Madison Circuit Court.
    
      W. R. Pierse, C. B. Gerard and D. W. Wood, for appellant.
    
      H. D. Thompson and E. P. Schlater, for appellees.
   Franklin, C.

— This is an action by appellees against appellant for the possession of a house and town lot in the town of Elwood, in said county. Issue was formed'by a general denial. Trial by the court finding for appellees; over a motion for a new trial, judgment was rendered for appellees.

The errors assigned in this court are:

1st. Overruling the motion for a new trial.

2d. Striking out first paragraph of answer.

3d. In rendering judgment for appellees for costs,.collectible without relief from valuation laws.

The reasons assigned in the motion for a new trial are, that the finding was contrary to and not sustained by the evidence, and was contrary to law.

The defence was a parol tenancy. The parties agreed that there had been a renting of the house and lot by appellees to appellant for one year, commencing March 1st, 1878; appellant insists that the contract of leasing gave him the option to hold the premises two years longer, and appellees admit that it gave him the privilege of holding one year longer. Appellant held the property one year longer, and refused to surrender possession at the end of the second year. This suit was commenced on the 5th day of March, 1880.

We have examined the evidence, and think it not only tends to support the finding, but that it preponderates in favor of appellees’ construction of the contract. The finding is therefore sustained by the evidence, is not contrary to it, and is not contrary to law. There was no error in overruling the motion for a new trial.

The second error assigned is the striking out the first paragraph of the answer.

This paragraph of the answer set forth that appellant held the premises under a parol lease, and that the time thereof had not yet expired, and that he had received no notice to quit possession.

There was no error in striking out this paragraph, for the reason that under the statute, in this class of cases, all defences can be given in evidence under the general denial. 2 R. S. 1876, p. 252, section 596.

Under the third error assigned, it is insisted that the court erred in rendering judgment for appellees for costs, collectible without relief from valuation or appraisement laws.

There was no motion made in the court below to modify or change the judgment, nor any objections whatever made to the form or substance of its rendition, and without the attention of the court below being called to the objection, and an opportunity being given to remedy defects, it is too late to raise this objection for the first time in this court. But, if it were otherwise, this judgment was rendered April 2d, 1880, and, under the fee and salary bill of 1879, which was then in force, “All costs shall be collectible without any relief from valuation or appraisement laws of the State of Indiana.” See Acts of 1879, p. 140, section 26.

There was no judgment for damages, and there is no error in the judgment for costs. We find no error in this record. The judgment below ought to be affirmed.

Pee Cueiam. — It is thei'efore ordered, upon the foregoing opinion, that the judgment below be and the same is in all things affirmed, with costs.  