Houk v. Citizens National Bank

51 Ind. App. 628 | Ind. Ct. App. | 1912

Ibach, J.

— Appellant, an attorney at law, brought this action for an accounting and to recover certain moneys deposited with appellee bank, subject to check.

The amended complaint was in a single paragraph, averring the deposit in appellee bank of $1,792.27, of which sum he had drawm out the sum of $645.78, to which a demurrer for want of facts was overruled. Issues were formed by the filing of an answer in two paragraphs, the first a general denial, the second a special answer admitting the deposit of the sum of $1,596.78, and averring that the amount had been checked out by appellant, except the sum of fourteen cents, which appellee had at all times stood ready to pay appellant on proper demand; that a tender of this amount had been made to appellant, and on his refusal to accept it, it had been paid to the clerk of the court for appellant’s use. To this answer there was a reply in general denial. The jury returned a verdict for appellee, on which judgment was entered.

1. 2. 3. A number of errors for reversal are assigned, and in pre • senting them appellant evidently expects this court to consider matters which are not in the record, and consequently not before us. He seems to predicate much of his argument on a statement of alleged facts occurring at the trial, which the trial judge struck o,ut of the bill of exceptions, when presented to him, and did sn no doubt because many statements were included in the bill of exceptions which were no part of the trial, and did not occur there. The trial judge is presumed to know what took place at the trial, and the bill of exceptions signed and approved by him is presumed to speak the truth, and no error can be predicated on a state of facts not incorporated into the record. Robb v. State (1896), 144 Ind. 569, 572, 43 N. E. 742; Reed v. State (1895), 141 Ind. 116, 40 N. E. 525; Bower v. Bowen (1894), 139 Ind. 31, 38 N. E. 326. We have carefully read appellant’s entire brief, and find that a large portion of it cannot be considered, for the re’ason that it refers to matter which is entirely foreign to the record. Other errors are assigned which are not discussed, and therefore must be considered waived.

4. 5. There are also errors assigned which relate to alleged irregularities in the proceedings of the trial court, but it is not necessary for us to consider the merits of these contentions, for the reason that the record discloses that at the time such action was taken, or ruling of the court was made, appellant made no objection thereto and reserved no exception. Judson v. Romaine (1893), 8 Ind. App. 390, 35 N. E. 912; Falley v. Gribling (1891), 128 Ind. 110, 26 N. E. 794. There was no error in sustaining appellee’s motion to require appellant to produce at the trial his deposit tickets, cancelled checks and pass-book. This proceeding is directly authorized by §502 Burns 1908, §479 R. S. 1881.

6. Under the specification that the court erred in overruling appellant’s motion for new trial, appellant has argued eight reasons. The first is that there was error in allowing the books of the bank to be introduced, in evidence, over appellant’s objection and exception. The record shows, however, that no harm could have come to appellant on this account, because the witness Eice, a bookkeeper for appellee bank, gave evidence as to the same facts, irrespective of any books of the bank. Wilber v. Scherer (1895), 13 Ind. App. 428, 430, 432, 41 N. E. 837.

7. Besides, appellant is in no position to complain, because the record shows that the only objection made to tne introduction of the books in evidence was a general one, stating no reasons, and it is not error to overrule such an objection. Ewbank, Ind. Trial Ev. §253; Cox v. Stout (1882), 85 Ind. 422; Indiana,, etc., R. Co. v. Cook (1885), 102 Ind. 133, 26 N. E. 203; Metzger v. Franklin Bank (1889), 119 Ind. 359, 21 N. E. 973; Lankford v. State (1895), 144 Ind. 428, 43 N. E. 444; Voss v. State, ex rel. (1894), 9 Ind. App. 294, 36 N. E. 654.

4. 8. 9. Por a second reason, it is claimed that the trial court erroneously made certain statements to the jury. The statements alleged to have been made are not contained in the record. The third claim is that there was misconduct on the part of appellee’s counsel. But here again a careful search of the record fails to show that any objection was made by appellant at the time. To predicate error on any action of the trial court, the record must disclose that the action of the court was objected to and an exception was saved. This proposition is too well established to need argument. The fourth, fifth and sixth specifications call in question the instructions given by the court of its own motion. We fail to see wherein appellant has any cause to complain in this regard. Considering the instructions complained of together, we find that they contain a fair and correct statement of the law on the questions of preponderance of evidence and burden of proof in this ease. They covered the subjects fairly and clearly. The seventh and eighth specifications are that the verdict is not sustained by the evidence and is contrary to law. The investigation of the reasons given by appellant as to why the evidence does not support the verdict would necessarily involve weighing the evidence. We cannot ignore the rule that the verdict must be sustained, where there is a conflict in the evidence, and there is some substantial evidence in the record supporting the verdict on the material points involved. Here there is ample evidence to support the verdict, and to allow it to stand. We find that, so far as the record shows, there has been a fair and impartial trial of this cause in the court below, and no error appears which could have in any way influenced the verdict and made it contrary to law. The verdict will not be disturbed, and the judgment is therefore affirmed.

Note. — Reported in 99 N. E. 437. See, also, under (1) 3 Cye. 271; (2) 3 Cyc. 177; (3) 3 Cyc. 388; (4) 2 Cyc. 669; (5) 17 Cyc. 457; (G) 38 Cyc. 1419; (7) 38 Cyc. 1378; (8) 38 Cye. 1778; (9) 3 Cyc. 348.