49 Ind. App. 226 | Ind. Ct. App. | 1911
This was a suit by appellant, as guardian of Fannie Rensberger, against appellees Jonas Rensberger, Lizzie Rensberger and Mitchell Charnley, to restrain them from negotiating a promissory note executed by said ward; and to cancel said note. There was a trial by the court, special finding of facts and conclusion of law, with judgment in favor of appellees for costs.
The errors assigned are that the court erred 1[1) in overruling appellant’s motion for new trial, and (2) in its conclusions of law on the special findings.
Then follows an enumeration of matters that appellant insists the court should have found, some of which are conclusions, and some merely items of evidence, and not the ultimate fact which the finding is supposed to contain. It is not necessary to go into these items in detail, because the questions attempted to be raised are not presented by this ground of the motion.
The statement that the verdict is contrary to law, raises such errors, occurring upon the trial, as have been carried into the verdict. Cincinnati, etc., R. Co. v. Darling (1892), 130 Ind. 376; Robinson Machine Works v. Chandler (1877), 56 Ind. 575; Jennings v. Ingle (1905), 35 Ind. App. 153.
7. The failure to find a material fact is, in effect, a finding as to such fact against the party on whom the burden of proving such fact rests. State Bank v. Backus (1903), 160 Ind. 682; McGrew v. Thayer (1900), 24 Ind. App. 578.
The motion for a new trial shows that this offered decree was rendered subsequent to the execution of the note in suit.
Counsel upon neither side of the ease have furnished us with any decision of our own State upon this question, and we have been unable to find any expression of this court or
It is true that some of the authorities indicate that in connection with certain other proof, or offered proof, such evidence may be made competent to show the condition of mind at the time of the adjudication, but it is not necessary that we should decide, or express an opinion upon, this question, as under the condition of the record in this case no such question is before us. The record in this case shows that the decree in question was the first item of evidence offered by the plaintiff, and that it was offered as a separate, independent item, and, therefore, under all the authorities, properly excluded. 22 Cyc. 1133; Burnham v. Mitchell (1874), 34 Wis. 117; Small v. Champeny (1899), 102 Wis. 61, 78 N. W. 407.
This case comes within the provisions of §698 Burns 1908, Acts 1903 p. 338, §8, and under the decisions construing that statute this court may consider and weigh the evidence. Under these holdings, however, the decision of the trial court has in its favor the presumption that it is correct, and appellant in this case, before being entitled to a reversal of the ease under this section of the statute, has the burden of making it appear to the satisfaction of this court that such decision is not fairly sustained by the evidence or is clearly against the weight thereof. Parkison v. Thompson (1905),
Much of the evidence upon which the finding of the court in this ease was made was oral, and in passing upon questions of fact depending upon this character of evidence the Supreme Court in the case of Parkison v. Thompson, sxipra, said at page 625 : "In passing upon questions of fact, under the act in question, which depend upon oral evidence given before the trial court, we must take into consideration, not only the evidence in the record, but also the means and tésts afforded the trial court for determining the credibility of the witnesses, and the weight to be accorded to their testimony. We must consider and give effect to all inferences and impressions that might have been reasonably deduced! by the trial judge by reason of the fact that he saw and heard the witnesses testify, and had the opportunity, by personal observation, to discover any signs of truth or falser hood in respect to their testimony. In a cause where a question of fact or facts depends upon oral testimony for support, and there is a substantial conflict in the oral evidence, under such circumstances, we will not undertake to reconcile the conflicting evidence, for it must be obvious from the position which we occupy that to endeavor to do so would be virtually useless. Were we to attempt, under such circumstances, to reconcile and weigh the evidence, and interpose our judgment in the case for that of the lower court, great injustice might result. Pollock v. North Carolina, etc., Assn. [1897], 51 S. C. 420, 29 S. E. 77, 64 Am. St. 683, and cases there cited. Certainly absurdity ought not to be imputed to the statute by holding that it contemplates that this court, under conflicting oral testimony, should weigh the evidence contained in the record, and determine questions of fact depending thereon.”
We have given the evidence in this case careful considera
Appellant in his brief asserts that the issues presented by tbe pleadings were as follows: “ (a) Was there any consideration for the note, and, if so, what was it? (b) Was Fannie Rensberger, at tbe time sbe executed the note, a person of unsound mind? (c) Was the note obtained by fraud, duress or undue influence? (d) Is Charnley a bona fide holder of the note for a valuable consideration, and without notice?”
Besides finding several other collateral and less important facts, the court expressly finds against appellant upon each of said material facts. Such being the finding of the court, the conclusions of law before stated, followed as a necessary consequence.
Judgment affirmed.