26 Ind. App. 114 | Ind. Ct. App. | 1901
January 25, ,1898, appellant filed a claim against the estate of Stephen Hamilton, deceased, aggregating $2,629. The claim embraces items of account running from April, 1886, to April, 1897, and was for nursing, caring for, boarding and washing for decedent. The administrator, appearing for the estate, did not file any affirmative answer. Trial was had by jury, and, at the conclusion of the evidence, the court, on appellee’s motion, instructed
Some technical objections are urged by appellee’s counsel that the evidence is not properly in the record, and hence no question is presented for decision; but we are clearly of the opinion that in this counsel are in error. The record shows that the official reporter filed the longhand manuscript of the evidence in the clerk’s office; that appellant requested in writing that such original longhand manuscript be embraced in the bill of exceptions without copying; that this was done; that the bill thus prepared was presented to the trial judge for settlement and signature; that he approved and signed it, and that when so signed it was duly filed in the clerk’s office, and a vacation entry made thereof. Upon this showing, we hold that the evidence is in the record.
In our judgment, however, the instruction given by the court is not in the record. Following the certificate of the official reporter to the longhand manuscript of the evidence, and the certificate of the clerk showing that the longhand manuscript of the evidence was duly filed in the clerk’s office, is the following: “And be it further remembered that upon the trial of said cause on the 6th day of December, 1899, at the request of the defendant the court gave to the jury the following instructions, to the giving of which * * * the plaintiff at the time excepted, and which in-instructions are in the words and figures following.” Then follows the instruction given, and it is shown that it was signed by the judge and excepted to by appellant. The bill then closes as follows: “And be it further remembered that
This leaves for our consideration the second and third reasons for a new trial. These rest upon the evidence. Under the rule so well established in this State, if there is any conflict in the evidence, we can not weigh it. In this case the only evidence given was that offered by the appellant, and if there is any evidence in the record tending to support her claim, and an entire absence of any evidence to the contrary, then we can say, without an infringement of
Appellant urges that there was evidence tending to prove a promise of decedent to pay her for services rendered, and that such services were rendered in pursuance of such promise. We must, therefore, look to the evidence to find whether there are any facts disclosed which tend to show any contract on decedent’s part to pay appellant for services, or from which any legitimate inference can be drawn tending to support appellant’s cause of action.
Harvey H. Hamilton, son of appellant, testified that the decedent made'his home at his father’s house the principal part of the time for twelve or thirteen years prior to his death; that soon after the decedent came to live in the family he heard him tell his mother (appellant) “that she should be paid for caring for him and waiting on him.” The same witness testified that at a subsequent time he
It is suggested in argument of counsel for appellee that even if it be conceded that there is some evidence tending to support appellant’s cause of action, yet she could not recover for the reason that the contract relied on was not one which appellant was authorized to make. We can not agree with counsel in this proposition. Under the statute and the authorities in this State, some of the items, at least, demanded by appellant in her verified claim are such as she might lawfully charge and collect payment therefor. This exact question was decided by this court in the case of Ar
In conclusion, we wish to say that we do not hold that all the items embraced in appellant’s claim are recoverable by her, but that there is some evidence in support of her cause of action, and as there is no evidence against it we can not say that the verdict is sustained by sufficient evidence. Judgment reversed, and the court below is directed to grant appellant a new trial.