18 Ind. App. 502 | Ind. Ct. App. | 1897
Replevin brought by appellees against appellant, alleging in their complaint that they were the owners of certain articles of personal property described of the value of $400.00, and unlawfully detained by appellants, to their damage, etc. Defendants answered by general denial. The cause was submitted to the court for trial, without the intervention of a jury. There was a finding and judgment for the plaintiffs. Appellant filed his motion and, written reasons, supported by affidavit, for a new trial. The court overruled said motion, and defendant excepted. From the judgment so rendered, appellant appeals, and specifies as error the overruling of his motion for a new trial. The interest claimed by appel
Appellant relies upon three propositions for the reversal of the judgment: First, that the chattel mortgage does not give appellee a valid lien upon the property in controversy, for the reason that it was not recorded in the county where the mortgagors resided. Second, the exclusion of certain evidence offered by appellant. Third, the discovery of new and material evidence since the trial.
Section 6638, Burns’ R. S. 1894 (4913, Horner’s R. S. 1896) provides that “no1 assignment .of goods by way of mortgage, shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee and retained by him, unless such assignment or mortgage shall be acknowledged, as provided in cases of deeds of conveyance, and recorded in the recorder’s' office of the county where the mortgagor resides, within ten days after the execution thereof.”
In the presentation of this question, the learned counsel for appellant do not lose sight of the long, settled rule of appellate courts, that if there is any evidence on every material point essential to recovery that tends to support the finding and judgment of the trial court, the judgment will not be reversed upon the weight of the evidence; that it is only when there is no evidence to support the finding and judgment, that a cause will be reversed. Under the statute it-was essential to plaintiff’s recovery that the mortgagors, Porter & McPherson, should have been residents of Wells county at the date of the recording of the mort
Wallace v. Lodge, 5 Ill. App. 507, was an action in assumpsit, and an attachment was issued therein and levied upon real estate of the plaintiff in error.
The cause assigned for issuing the attachment was that the defendant was a nonresident of the State of Illinois. Defendant denied that he was a nonresident of the state of Illinois, and offered in evidence the. depositions of witnesses who deposed as to the statements made by him at about the time of his departure for Minnesota, expressive of his intention after the completion of his business in that state to return to Illinois. The lower court excluded the testimony, and the appellate court held the evidence admissible, citing Greenleaf on Evidence, to the effect that any declaration made at the time of the transaction expressive of the motive, character, or object, are regarded as verbal acts indicating an intention, and are therefore admitted in proof like any other material fact. See, also, Viles v. City of Waltham, 157 Mass. 542, 42 N. E. 901.
In view of the testimony of Porter, we think the testimony of Sturgis and Scott, if not admissible' as corroborative, was harmless, and could not have been prejudicial to appellant.
The»second ground relied upon for the reversal of the judgment is, that the court sustained appellee’s objection to the following question propounded to the appellant while upon the witness stand: “I will ask you now whether or not Charles S. Porter or McPherson, who was associated with him in drilling wells, lived in Wells county in the month of January, 1895?” This question called for the opinion of the witness, who had detailed to the court all the facts within his knowledge, upon which such opinion must have been-based. The mere opinion of the witness could not have aided the court who was to determine the question of residence from the facts proved. The ruling, therefore, could not have harmed appellant.
The third ground relied upon for reversal of the judgment is the discovery of new evidence since the former trial. The newly discovered evidence was an affidavit made on March 11, 1895, by Porter, mortgagor, to secure the continuance of a cause then pending before a justice of the peace, and a schedule of property made by said Porter on the same day for the purpose of obtaining an exemption from execution, in
If it is an admission, we think it must be held cumulative, because there is evidence to the same point of the same character. Other witnesses on behalf of the defendant (appellant) testified that Porter told them that he lived in Blackford county and that his family was there. Under the rule laid down in Hines v. Driver, supra; McDonald v. Coryell, 134 Ind. 493; Morrison v. Carey, 129 Ind. 277, we incline to the opinion that appellant has not shown proper diligence before the trial to discover this new evidence. This, however, we need not decide, as in our opinion it was cumulative. The testimony given was to oral admissions, the new evidence is written admission of the same fact.
The circuit court evidently reached the conclusion that appellants had not used due diligence to discover this evidence, and probably reached the conclusion that it was not of a character to change the result. We find no error for which the judgment of the lower court should be reversed.
The judgment is affirmed.