Action by the appellant against the appellee, to recover the possession of certain personal property. Issue, trial, finding and judgment for the defendant.
One Wright and others had recovered a judgment against John W. Matlock; and by virtue of an execution issued thereon, the defendant, as deputy sheriff, had levied upon the property in controversy, as the property of said John W. Matlock, the judgment defendant. The plaintiff claimed the property by virtue of a mortgage, executed by John W. Matlock to the intestate, David Matlock. The appellant claims that the Court, who tried the cause, admitted irrelevant and incompetent testimony, and that the finding was not sustained by the evidence. These objections can not prevail. Strike out all the appellant objected to, and still the finding is right. The property, after the execution of the mortgage, continued in the possession of John W. Matlock, and there was no proof that the mortgage was recorded within ten days, as required by law in such cases. 1 R. S. 1852, p. 301, sec. 10; Chennyworth v. Daily, 7 Ind. 285.
It is also objected, that the Court erred in awarding a return of the property, the defendant, in his pleadings, not Having prayed such return. It was not necessary that the *129defendant, in Ms pleadings, should have claimed a return of the property. Conner et al. v. Comstock, et al., 17 Ind. 90.
C. C. Nave, for the appellant. Rand & Hall, for the appellee.The Court rendered judgment against the plaintiff, personally, for costs. This was a mere clerical error, if erroneous, and might have been amended in the Court below, and, according to the case of Stevenson v. Bruce, 10 Ind. 397, will be deemed amended here. No question was made in this respect in the Court below, and it can not be made for the first time in this Court. ;
Per Curiam. — The judgment below is affirmed, with costs..