Coffing v. Carnahan

122 Ind. 427 | Ind. | 1890

Elliott, J.

The appellant alleges in his complaint that Daniel Osborne obtained a judgment against him before a justice of the peace; that an execution has been issued on the judgment, and that the property of the plaintiff will be seized and sold unless the parties are restrained by an injunction. The ground upon which the injunction is asked is that the judgment creditor, Osborne, assigned the judgment, by a writing, to Smith Coffing to whom the appellant paid it in full.

We shall only consider such questions as counsel have argued, and these arise on the motion for a new trial.

The appellant contends that the court erred in refusing to permit him to give parol evidence of the contents of the instrument under which Smith Coffing claims to be the assignee of the judgment, but there was no error in this ruling. The complaint avers that the assignment was in writing, and this precludes the plaintiff from showing that it was by parol. The instrument can not be regarded as a collateral one, since it is upon this writing — which is pleaded at length in the complaint — that the appellant’s cause of action depends. It is obvious that he can not succeed unless there was such a writing as he relies, on in his complaint, nor can he succeed without producing the instrument itself, or accounting for its absence. There is no evidence showing the loss of the instrument, nor is there any evidence showing that search was made for it at the proper place, and in the absence of such preliminary proof there was no right to resort to secondary evidence.

Filed March 1, 1890.

Without the production of the writing there was a lack of evidence essential to a recovery, and the trial court did right in rendering judgment in favor of the appellee.

Judgment affirmed.