15 Ind. App. 23 | Ind. Ct. App. | 1896
Lead Opinion
The appellant filed a claim against said
We have carefully read the record, and find the evidence conflicting. There is ample evidence fairly supporting the verdict of the jury, on every material point in issue, and therefore we will not reverse the judgment of the trial court on this ground. Haines v. Porch, 9 Ind. App. 413; Zimmerman v. Snyder, 6 Ind. App. 178; Miles v. DeWolf, 8 Ind. App. 153.
On the trial the appellant introduced witnesses who testified that they had seen Henry Rinker sign his name, and, without asking the witnesses whether they knew or were acquainted with his handwriting or signature, obtained answer from them that in their opinion the signature to the note was genuine.
The appellee then introduced witnesses who testified that they had seen Henry Rinker sign his name1, and, without asking the witnesses whether they knew or were acquainted with his signature, obtained answer from them that 'in their opinion the signature to the note was not genuine.
Assuming the law to be that in such cases non-expert witnesses can only give their opinion on the question of the genuineness of the signature in question, when they have shown that they are acquainted with
“It has often been decided that a party calling out incompetent evidence may preclude himself from successfully objecting to evidence of like character introduced by his adversary. The rule on this subject is that evidence otherwise incompetent may be practically stripped of its objectionable character by the course pursued by the party who challenges its competency. If a party opens the door for the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened.” Perkins v. Hayward, 124 Ind. 445.
In this case the appellant has no just ground for complaint because of the introduction of the incompetent evidence mentioned.
In one instance there was no objection to the evidence, but the question arises on the motion to strike out. The rulé is that when evidence is admitted without objection a subsequent motion to strike out comes too late. Chicago, etc., R. W. Co. v. Champion, 9 Ind. App. 510.
It was shown, on cross-examination of this witness, that his opinion was based in part on comparison with signatures to papers not before the court and not admitted to be genuine. The witness was not an expert. Comparisons by experts can only be made with papers admitted to be genuine. Merritt v. Straw, 6 Ind. App. 360. The fact that the cross-examination disclosed that the opinion of the witness was in part at least based on such comparison did not, under the circumstances, constitute sufficient ground for striking out his evidence. Maybin v. Webster, 8 Ind. App. 547. The witness testified in chief that he was assistant cashier of the bank and had often seen Mr. Rinker sign his name to checks, and then on cross-examination he tes
The appellant introduced evidence tending to prove that he did work for Rinker, and that the note was executed upon the settlement of accounts, and not for any consideration that passed at the time of the execution of the note. The appellee introduced evidence tending to prove statements by appellant that the note was executed on account of work and labor performed by him for Rinker. It was conceded, as we understand the record, that the appellant, who married a daughter of Rinker, during the life of his wife and before the execution of the note, lived for several years with Rinker, and there was no error, under the circumstances, in allowing the appellee to prove that the appellant did but little if any work while he lived with Rinker. The note is dated after the death of appellant’s wife, Subsequent to the date1 of the note Rinker bought of appellant a tract of land, for which he paid him $1,400. Rinker during all these years was a wealthy man, while the appellant owed at least one just note of $90.00 of many years standing, which yet remains in part unpaid. The case in many respects is- a peculiar one. Whatever the merits of the
Judgment affirmed.
Rehearing
Opinion on Petition for Rehearing.
On appellant’s petition for rehearing, we have again examined the questions discussed.
In the circuit court, it should clearly appear that substantial justice has been done by the verdict, or a new trial ought to be granted. After the circuit court has approved the verdict of the jury, all presumptions are in its favor in this court, and we are not permitted to interfere unless it clearly appears that substantial justice has not been done. Smith v. Stump, 12 Ind. App. 359; Haines v. Porch, 9 Ind. App. 413, and authorities ‘there cited; City of Lafayette v. Ashby, 8 Ind. App. 214, 225.
The general rule is that when evidence is admitted without objection, in response to a question that indicates the nature of the response, a subsequent motion to strike it out comes too late. Rhea v. Crunk, 12 Ind. App. 23.
Counsel for appellant earnestly insist that the judgment of the trial court should be reversed because witnesses who testified that they had seen Henry Rinker write his name, were allowed to testify that in their opinion the signature to the note was not his, without previously testifying that they were acquainted with his signature. Assuming that the rulings - mentioned. were erroneous, the record clearly shows that appellant, while introducing his evidence in chief, asked and received answers to questions subject to the objection made against the questions of ap
The petition for rehearing is overruled.