Beard v. Millikan

68 Ind. 231 | Ind. | 1879

Biddle, J.

Complaint by the appellant, against the appellee, to enter satisfaction of a judgment alleged to have been paid. The court, upon a hearing, refused- to enter the satisfaction as prayed, and found for the appellee.

Two questions are presented here, that the decision is contrary to law, and not sustained by the evidence. Wherein the decision is contrary to law has not been made to appear. As to the sufficiency of the evidence to sustain the decision: The appellant testified that he paid the balance due on the judgment to the sheriff', who held an execution for its collection, and took a receipt therefor; but the receipt was not produced at the trial. The absence of the receipt was accounted for by the statement of the witness that he thought he had burned it with some old papers. The appellee testified that he never had received the balance due on the judgment.

"We think the court erred in its decision. The appellant’s testimony makes & prima facie case in his favor. A payment to the sheriff', having the execution for collection, will shield the appellant, although the appellee may never have received the money. The appellee’s testimony that he never received the money does not conflict in the least with the testimony of the appellant that he paid it to the sheriff'; nor is there any evidence in the case that conflicts with his statement. It is not a question of the conflict of evidence, but of a want of evidence on the part of the appellee.

The judgment is reversed, at the costs of the appellee; cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings.

Petition for a rehearing overruled.