Suit by Dayton against the company for killing stock upon the road where it was not fenced. Trial by the Court; finding and judgment for the plaintiff.
Two points are made for reversal: 1st. That there was a trial without an issue; and 2d. That the record shows that the road was fenced and that no negligence was shown.
The first record sent up shows that the cause was tried without any pleading appearing to have been filed on behalf of the defendant, but an amended record shows that the cause was tried on the general denial. An objection is made by the appellant to the manner in which the amendment of *327tlie record was made in the Court below. We shall pass over this last objection, because without any amendment, the objection is not available that the cause was tried without an issue. hTo objection on this ground was in any manner made in the Court below, and it can not be for the first time successfully made in this Court. Martindale v. Price, 14 Ind. R. 115; Henly v. Kern, 15 id. 391.
G. II. Ross, for the appellant. M. Garver and James O’Brien, for the appellee.With reference to the other point, it may be observed that the complaint alleges, and the proof, as contained in the second record sent up, (no amendment being made in this respect,) shows that the road was not fenced at the point where the stock was killed.
The judgment is affirmed, with costs and five per cent, damages.