
    The Fishback and Elizabethtown Gravel Road Company v. Wilson.
    
      WB.ACnoE.~-Fiading Beyond Hie Issue.—Motion Jor Judgment on Finding.—On the trial in the circnit court of an action commenced before a justice of the peace, to recover upon a stock subscription, the execution of the instrument not being denied by the defendant Under oath, the court found specially for the plaintiff every point in issue, so that judgment could have been rendered for the instalment sued for, but found further, that after the defendant had executed the instrument it had been altered in a material part, Without his knowledge or authority, and, over a motion by the plaintiff for a new trial, rendered judgment, without further objection, for the defendant.
    
      Held, that the motion for a new trial did not raise any question; but a motion for judgment on the finding should have been made in order to present the question involved to the circuit court.
    
      Held, also, that the question could not be made for the first time in the Supreme Court.
    APPEAL from the Hendricks Circuit Court.
   Erazer, J.

This suit originated before a justice of the peace. It was to recover calls upon a written subscriptiou for stock of the appellant. The execution of the instrument was not denied under oath, as is made necessary by statute to put that matter in issue. 2 G. & H. 585, see. 34. A jury was waived, and the court found specially for the appellant every point in issue, so that, judgment could have been rendered for the instalments sued for. But the finding went beyond the issue, declaring that after the appellee had executed the instrument it had, without his knowledge or authority, been altered in a material part. A motion for a new trial by the appellant upon two grounds, first, that the finding was against the evidence; second,that it was contrary to law, was overruled and an exception taken. Judgment was then, without objection, rendered for the defendant below.

The issues having been found for the appellant, a motion for a new trial by it was not the way to raise any question. A motion for judgment upon the finding should have been made, in order to present to the court below the question to which our attention is called. As that was not done, the only inquiry that presents itself is, can the question be made, for the first time, in this court? It would be contrary to the whole current of decisions under the code so to hold. The rule is general and almost universal, that a question cannot he made in this court which has not been made in the court below.

C. C. Nave, for appellant.

L. M. Campbell, for appellee.

The judgment is affirmed, with costs.  