157 Ind. 458 | Ind. | 1901
Appellant originally commenced this action in the Marion Circuit Court against appellees, Eufus
The learned counsel for appellees in his argument whereby he seeks to parry the force of the contention of appellant’s learned counsel, to the effect that the court erred in directing the verdict, vigorously assails the complaint on the ground that it wholly fails to state any cause of action against his clients, hence, it is insisted that the appellant -is not in a position to complain of her failure to recover a judgment, for the reason that there is no foundation whatever upon which a judgment in her favor could rest or be supported. But as the judgment must be affirmed for the insufficiency of the evidence to sustain the complaint, we pass this contention without consideration.
Counsel for appellant contends that the court erred in several instances, as shown by a bill of exceptions, in excluding testimony which appellant offered to prove by certain witnesses. Passing the question raised by appellees as to the relevancy of the evidence in question, we are of the opinion that, under the circumstances, she is not in a position successfully to complain of these rulings of the trial court in excluding such evidence, for the reason, as it appears, that in each instance after the trial court had sustained appellees’ objections to the question propounded to the witness by which the evidence in controversy was sought to be elicited, that appellant excepted to the ruling of the court, and thereafter made an offer or statement to the court of what she proposed to prove by the witnesses under the question propounded. Such procedure, under a well affirmed rule of this court, does not raise or present any question for review in respect to the admissibility of the proposed evidence. See, Gunder v. Tibbits, 153 Ind. 591, and cases
The question in respect to the alleged error of the court in denying appellant’s application for a postponement of the trial on account of the absence of James E. Howland, a witness who resided at Streator in the state of Illinois, is next presented for our consideration. We are satisfied that the court committed no error in denying this application. Passing the question as to whether the application and the affidavit filed in support thereof disclosed due diligence on the part of appellant and her attorney in their endeavors to secure the testimony of this witness, it is certainly true that, under the facts alleged in the affidavit in support of the continuance, it was not made to appear that there was any probability of obtaining the testimony of this witness within a reasonable time. This, under the statute, is required to be shown. §413 Burns 1901, §410 Horner 1897.
It is lastly contended that the court erred in directing a verdict on the motion of appellees at the close of appellant’s evidence. In this contention we do' not concur. An examination of the evidence introduced by appellant upon the trial satisfies us that it wholly fails to establish any cause of action in favor of appellant. There is an entire absence of evidence in respect to some of the material points which entered into the alleged cause of action. The rule to the effect that where there is a “scintilla” of evidence the trial court must permit the case to be submitted to the jury for their determination does not prevail in this State. Oleson v. Lake Shore, etc., R. Co., 143 Ind. 405, 32 L. R. A. 149; Meyer v. Manhattan Ins. Co., 144 Ind. 439, and cases there cited; Diezi v. Hammond Co., 156 Ind. 583.
Binding no available error, the judgment is affirmed. Hadley, J., did not participate in this decision.