Conditions should not be annexed to the granting of a new trial. De Ford v. Urbain, 48 Ind. 219. A new trial can not be granted upon the issues formed on a set-off or counter-claim, alone. Johnson v. McCulloch, 89 Ind. 270. More than one application for a new trial may be made. White v. Perkins, 16 Ind. 358. After a ruling the motion for a new trial can not be withdrawn. Coan v. Grimes, 63 Ind. 21. The effect of granting a new trial is to set aside any judgment rendered, and to open up all the issues. Rickets v. Hitchens, 34 Ind. 348; Maxwell v. Campbell, 45 Ind. 360; State, ex rel., v. Templin, 122 Ind. 235. A new trial need not be granted though both parties consent. Wright v. Miller, 63 Ind. 220. If a new trial is improperly granted the order may be set aside and judgment entered on the verdict. Gann v. Worman, 69 Ind. 458. The court can not set aside the order granting a new trial and dismiss the cause. State, ex rel., v. Templin, 122 Ind. 235. Pending a motion for a new trial no valid judgment can be rendered. Railroad Co. v. Doane, 105 Ind. 92. The supreme court will seldom reverse a judgment because of the granting of a new trial. Nagle v. Hornberger, 6 Ind. 69; Leppar v. Enderton, 9 Ind. 353; Collingwood Railway Co., 54 Ind. 15. v. The motion may be sustained as to some of the parties and overruled as to others. Bank v. Williams, 126 Ind. 423. 569. (560.) Small damages, no ground.-421. A new trial shall not be granted on account of the smallness of the damages in actions for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained. In actions for injuries to the person or reputation, a new trial can not be granted on account of the smallness of the damages. Sharpe v. O'Brien, 39 Ind. 501. This section applies to a suit by a father for the death of a child. Gann v. Worman, 69 Ind. 458. 570. (561.) Motion, when made.-422. The application for a new trial may be made at any time during the term at which the verdict or decision is rendered; and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any term, then, on the first day of the next term of such court, whether general, special, or adjourned. The court can not, without the consent of parties, give time beyond the term for an application for a new trial. Krutz v. Craig, 53 Ind. 561; Wilson v. Vance, 55 Ind. 394 ; Cutsinger v. Nebeker, 58 Ind. 401; Penn. Co. v. Sedwick, 59 Ind. 336; Northcutt r. Buckles, 60 Ind. 577; Louisville, etc., Co. v. Summers, 131 Ind. 241. When a verdict is returned on the last day of the term the motion may be made on the first day of the next term. Wallace v. Ransdell, 90 Ind. 173; American, etc., Co. v. Clark, 123 Ind. 230. A motion for a new trial is not considered made until the written reasons are filed. Secor v. Louder, 95 Ind. 95; Emison v. Shepard, 121 Ind. 184. Motions for a new trial must be presented to the court, filing the same with the clerk not being sufficient. Emison v. Shepard, 121 Ind. 184. The motion may be filed at any time during the term judgment is rendered, even after judgment. Cox v. Baker, 113 Ind. 62; Colchen v. Ninde, 120 Ind. 88; American, etc., Co. v. Clarke, 123 Ind. 230. It is doubtful if an attorney can agree to extend the time for filing the motion except by an agreement entered on the minutes of the court. American, etc., Co. v. Clark, 123 Ind. 230. After a new trial is granted, it is too late to say that the motion was not filed in time. Geiss . Franklin, 123 Ind. 172. If a verdict is returned before a special judge on the last day of the term, a motion for a new trial may be filed on the first day of the next term. Staser v. Hogan, 120 Ind. 207. Additional reasons can not be filed after the term. Myers v. Jarboe, 56 Ind. 57. Failure of the court to rule upon a motion for judgment on the special finding during the trial term, will not be cause for making a motion for a new trial at the next term. Jacquay. Hartzell, 1 App. 500. 571. (562.) Manner of applying.-423. The application must be by motion, upon written cause filed at the time of making the motion. The cause mentioned in the second, third and seventh clauses of section three hundred and fifty-two [§ 420], must be sustained by affidavit showing their truth. The motion must be in writing. Whaley v. Gleason, 40 Ind. 405; Shover v. Jones, 32 Ind. 141; Stevens v. Nevitt, 15 Ind. 224; Emison v. Shepard, 121 Ind. 184; Secor v. Louder, 95 Ind. 95. 572. (563.) Causes discovered after term.-Limit.-424. Where causes for new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by a complaint filed with the clerk, not later than the second term after the discovery, on which a summons shall issue, as on other complaints, requiring the adverse party to appear and answer. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court upon the evidence produced by the parties. But no such application shall be made more than one year after the final judgment was rendered. The complaint need not contain a transcript of the proceedings. McKee v. McDonald, 17 Ind. 518; Rickart v. Davis, 42 Ind. 164. The complaint must show on its face that the applicant is entitled to a new trial. Glidewell v. Daggy, 21 Ind. 95. The issues in the cause, the evidence on the former trial and the newly discovered evidence, must be brought before the court. Huntington v. Drake, 24 Ind. 347; Rickart v. Davis, 42 Ind. 164; Carver v. Compton, 51 Ind. 451; Trustees v. Reynolds, 61 Ind. 104; Hines v. Driver, 100 Ind. 315. The complaint should be verified. Cox v. Hutchings, 21 Ind. 219. The complaint must show that it is filed within a year after judgment. Hiatt v. Ballinger, 59 Ind. 303; Trustees v. Reynolds, 61 Ind. 104; Hines v. Driver, 100 Ind. 315; Blackburn v. Crowder, 110 Ind. 127. When newly discovered evidence is the ground of complaint the diligence used to discover the same must be shown, and the time of discovery stated. Bartholomew v. Loy, 44 Ind. 393; Hines v. Driver, 100 Ind. 315; Blackburn v. Crowder, 110 Ind. 127; Allen v. Bond, 112 Ind. 523; Mercer v. Mercer, 114 Ind. 558. The application is an independent proceeding in which issues are to be formed and a trial had. Sanders v. Loy, 45 Ind. 229. The witnesses should be examined orally. Allen v. Gillum, 16 Ind. 234. If the application is not made on the ground of newly discovered evidence the evidence in the former trial need not be set forth. House v. Wright, 22 Ind. 383. A demurrer to the complaint admits that evidence was given on the former trial as stated. Sanders v. Loy, 45 Ind. 229; Humphreys v. Klick, 49 Ind. 189; Hines v. Driver, 100 Ind. 315. All parties to the former cause shall be made parties. Carver v. Compton, 51 Ind. 451. A new trial after term can only be granted for causes existing at the time of the trial, and which would have been cause for a new trial during term if then known. Stanley v. Peeples, 13 Ind. 232; Nelson v. Johnson, 18 Ind. 329; Glidewell v. Daggy, 21 Ind. 95. Newly discovered evidence must not be merely cumulative, nor for purposes of impeachment. Marshall v. Mathers, 103 Ind. 458; Hines v. Driver, 100 Ind. 315; De Hart v. Aper, 107 Ind. 460; Blackburn v. Crowder, 110 Ind. 127; Allen v. Bond, 112 Ind. 523. A jury trial can not be had on the application. Houston v. Bruner, 59 Ind. 25. An appeal may be taken from the judgment rendered on the application. Hines v. Driver, 89 Ind. 339. This section does not apply to divorce causes. Earle v. Earle, 91 Ind. 27; Powell v. Powell, 104 Ind. 18. SEC. 573. On general verdict. 574. On special verdict. ARTICLE 24.-JUDGMENT. 575. On pleadings, notwithstanding verdict. 676. When plaintiff is barred as to part. 577. Against part of plaintiffs or defendants. 578. Against defendants, when joint or several. 579. Defendants all served - Judgment against part only. 580. Set-off-Judment for excess. 582. Proof and assessment on default. 587. On bonds-When without relief. 589. Satisfaction. 590. Indorsement of payment on record Effect. 591. Judgment-docket-Contents. 592. Entry of stay of execution. 593. Record-Open to all. 594. Neglect of clerk to enter judgment, 595. Who may confess judgment. 599. Costs. 600. Recovery under $50-Exception. 603. Costs, how apportioned. SEC. 604. Where suits can be joined-Costs in one only. 605. When costs adjudged before final 606. Costs where lands are attached. 609. Except divorce, when opened. 611. Bona fide purchasers not affected. 613. Payment to assignor, when valid. courts. 622. Lien. 623. Fees of clerk. United States 573. (564.) On general verdict.-440. When a trial by jury has been had, and a general verdict rendered, the judgment must be in conformity to the verdict. The judgment of the court must follow the verdict, if the latter stand. Mitchell v. Geisendorff, 44 Ind. 358; Bowles v. Stout, 60 Ind. 267; Hershman v. Hershman, 63 Ind. 451; Nordyke v. Dickson, 76 Ind. 188; Koons v. Bank, 89 Ind. 178. Judgments can not be entered in vacation in causes tried in term. Passwater v. Edwards, 44 Ind. 343; Mitchell v. St. John, 98 Ind. 598; State v. Thistlethwaite, 83 Ind. 317. Parties may by their actions be estopped from showing that a judgment was entered in vacation. Ridgway v. Morrison, 28 Ind. 201. A verdict is not effective unless judgment is entered thereon. Shirk v. Wilson, 13 Ind. 129. Judgments for money should use the word "recover," and in other cases appropriate words should be used, according to the relief granted. Needham v. Gillaspy, 49 Ind. 245. Generally, a judgment is the decision of a controversy given by a court, between parties who do not agree. Cooper v. Metzger, 74 Ind. 544. The rendition of a judgment is when it is announced by the court, and not from the time of entry. Anderson v. Mitchell, 58 Ind. 592. Judgments are to be construed in accordance with the pleadings and record in the cause. Fleenor v. Driskill, 97 Ind. 27. A judgment can not be entered pending a motion for a new trial. Railroad Co. v. Doane, 105 Ind. 92. Taking of a judgment in favor of a person in a wrong name does not render the judgment invalid. McGaughey v. Woods, 106 Ind. 380. 574. (565.) On special verdict.-441. Where the verdict is special, or where there has been a special finding on particular questions of fact, the court shall render the proper judgment. See section 555 and notes. 575. (566.) On pleadings, notwithstanding verdict.-442. When, upon the statements in the pleadings, one party is by law entitled to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party. When, by pleading, the plaintiff's right to recover is admitted, judgment should be rendered by the court accordingly, regardless of an adverse verdict. Western, etc., Co. r. Fenton, 52 Ind. 1; New Albany, etc., Co. v. Stallcup, 62 Ind. 345. If an affirmative and sufficient answer is not denied the defendant is entitled to judgment. Stoops v. Greensburgh Co., 10 Ind. 47. Proof of an insufficient answer will not defeat the right of the plaintiff to a judgment. McCloskey v. Indianapolis Union, 67 Ind. 86. If the plaintiff goes to trial without requesting an answer he can not have a judgment after a verdict is rendered against him. Hartlep v. Cole, 101 Ind. 458. Parties entitled to a judgment on the pleadings must move therefor before going into trial. Train v. Gridley, 36 Ind. 241; Lock v. Bank, 66 Ind. 353; Buchanan v. Berkshire Co., 96 Ind. 510. It is only the party against whom a verdict has been rendered that can move for a judgment contrary to the verdict. Brown v. Searle, 104 Ind. 218. 576. (567.) Where plaintiff is barred as to part.-49. In actions against two or more defendants, where the plaintiff is barred by the provisions of this act as to one or more of the defendants, and is entitled to recover against others for any cause, judgment shall be rendered against those liable and for those not liable. An acknowledgment of a debt by one partner, after dissolution will not take it out of the statute as to the others. Kirk v. Hiatt, 2 Ind. 322. This section applies only where there is a finding or verdict in favor of some, and against others of the defendants. Graham v. Henderson, 35 Ind. 195. The plaintiff will be entitled to a judgment against those shown liable in an action against several persons. Murray v. Ebright, 50 Ind. 362; Richardson v. Jones, 58 Ind. 240; Stafford v. Nutt, 51 Ind. 535. This section is applicable to actions before justices of the peace. Terwilliger v. Murphy, 104 Ind. 32. 577. (568.) Against part of plaintiffs or defendants.-438. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. If a plaintiff prove his cause as against a portion of the defendants only he will be entitled to judgment against such portion. Stafford v. Nutt, 51 Ind. 535; Richardson v. Jones, 58 Ind. 240; Nicodemus v. Simons, 121 Ind. 564. This section applies to suits in replevin. Hamilton v. Browning, 94 Ind. 242. And is applicable to actions before justices of the peace. Terwilliger v. Murphy, 104 Ind. 32. If only a portion of the plaintiffs are entitled to recover, judgment may be entered in their favor and against others of the plaintiffs. Nicodemus v. Simons, 121 Ind. 564. If judgment is rendered against one defendant by default on a joint cause of action, a judgment can not be obtained against the other defendant unless the proof shows a joint liability. Beatty v. O'Connor, 2 App. 337. 578. (569.) Against defendants, when joint or several.-439. In a suit against several defendants, the court may, in its discretion render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper. This section applies only to cases where the parties are severally liable. Rose v. Comstock, 17 Ind. 1. When the parties are all before the court, judgment should not be entered against a portion of joint contractors until the liability of all are determined. Mullendore r. Silvers, 34 Ind. 98. When a joint liability is charged, but the proof shows a liability on the part of a portion only, judgment may be entered against those liable. Lower v. Franks, 115 Ind. 334. In a suit against several defendants, severally, or jointly and severally, liable, judgment may be rendered against part of them at one term, and against the rest, upon continuance, at another term. West v. Asher, 38 Ind. 291. A judgment may be rendered in favor of some defendants and against others, in a real action. Clements v. Robinson, 54 Ind. 599; Richardson v. Jones, 58 Ind. 240. But separate judgments can not be taken upon joint contracts. Erwin v. Scotten, 40 Ind. 389; Murray v. Ebright, 50 Ind. 362. The rendition of a judgment against a portion only of joint contractors, is a bar to a |