91 Ind. 146 | Ind. | 1883
— The appellee sued the appellants Daniel Burns, Jr., and Harvey F. Woods, sheriff of Wabash county, the complaint alleging, at length and with particularity, that two
The appellants answered by a general denial. The cause was tried by a jury, and a verdict was returned in favor of the appellee. A motion for a new trial, filed by the appellants, was overruled, and judgment was rendered in accordance with the prayer of the complaint. The overruling of the motion for a new trial is assigned as error.
In the motion for a new trial, the cause numbered the first contained two subdivisions, and the first subdivision appears in the transcript before us as follows:
“1. The court erred in admitting, over defendants’ objections, the following, as evidence to the jury, to wit:
“First. The court erred in admitting the following executions issued by Citizens’ Bank, in these words, to wit: (These executions are inserted at full length on pages 69, 70, 75, 77, lines 1, 1, 14, 3. Clark W. Weesner, clerk.) And the following issued by the First National Bank, in these words, to wit: (These executions are inserted at full length on pages 71, 78, 80, lines 14, 29,18. Clark W. Weesner, clerk.) The following entries in the execution-docket, in these words, to wit: (Set out at full length on pages 83, 84, 85, 86, lines 13, 1, 1, 1. Clark W. Weesner, clerk.) Also in the testimony of Harvey F. Woods, as a witness, the following endorsement and notice of sale, in these words, to wit: (Inserted at full length on pages 88, 90, lines 6, 18. Clark W. Weesner, clerk.) Also in admitting the following praecipes,*149 in these words, to wit: (Inserted at full length on page 82, line 24. Clark W. Weesner, clerk).”
The references in these parentheses are to the bill of exceptions, which was not signed or filed until long after the motion for a new trial had been overruled.
The statute provides that the application for a new trial must be by motion upon written causes filed at the time of making the motion. The causes quoted above from the motion of appellants were incomplete, and, in fact, specified nothing. They presented no question to the court below, and therefore they can present no question here.
In the second subdivision of the cause, numbered the first, it was assigned that the court erred in admitting in evidence conversations of Meredith H. Kidd, with different persons, not in the presence of the defendant Burns, and the motion specified these conversations and stated the language attributed by the witnesses to Kidd.
It is urged, in objection to this evidence, that Burns, Jr., was not present at the conversations, and that it had not been shown that Kidd was the agent or attorney of the appellant Burns, or authorized to speak for him.
When this evidence was admitted there had been introduced some evidence proper for the consideration of the jury as tending to prove that Kidd was acting for the appellant Burns, as his agent, and this was further shown afterward by the testimony of the witnesses for the defendants.
The evidence of the statements of the agent, while acting as such, made in the absence of his principal, in relation to the matter in which he was acting as agent, was not inadmissible as against the principal. It is claimed in argument that this evidence contradicted the written assignments of the judgments to Burns and was inadmissible on this ground.
The plaintiff was not a party to the writings which he sought in this case to impeach.
It was alleged in the complaint, and this testimony tended to prove, that the appellant Burns, through his attorney, had
As the cause for a new trial numbered the second, it was assigned that the court erred in overruling a motion of the appellants to strike out the evidence, the objections to the introduction of which we have just considered. What we have said disposes of this cause.
As the cause numbered the third, it was assigned that the court erred in sustaining the appellee’s objections to certain questions propounded by the defendants to one of their witnesses. It is sufficient to say of this that it does not appear by the.record what particular facts it was expected to elicit from the witness. Lewis v. Lewis, 30 Ind. 257; Chamness v. Chamness, 53 Ind. 301; Lowder v. Lowder, 58 Ind. 538; Graeter v. Williams, 55 Ind. 461.
The fourth and fifth causes in .the motion appear in the record as follows:
"4. The court erred in giving the following charge to the jury, asked for by the plaintiff, in these words, to wit: (Inserted at full length on page 145, line 1. C. W. Weesner, clerk.)
“ 5. The court erred in giving the following instruction •to the jury, upon its own motion, to wit: (Inserted at full length, on page 147, line 24. Clark W. Weesner, clerk.)”
What we have said in disposing of the first subdivision of the first cause is applicable to the fourth and fifth causes.
The only other causes stated in the motion, being the sixth and seventh, presented the question whether the verdict was .sustained by sufficient legal evidence.
We find in the record evidence tending to sustain the verdict. This being true, the testimony of a contrary tendency, if it can. be said that there was such, can have no effect here to disturb the conclusion reached by the jury and sustained by the court below. We find no available error.
Pee Curiam. — It is ordered, upon the foregoing opinion, that the judgment be affirmed, at the costs of the appellants.