Kelso v. Wolf

70 Ind. 105 | Ind. | 1879

Biddle, J.

— Suit on a promissory note made by the appellants to Epaminondas Williams, and assigned by Williams to the appellee. Answers and replies. Trial by the court, finding and judgment for appellee. Appeal.

The only point made in the ease is “that the finding is not sustained by the evidence.”

The complaint avers that “ Said defendants, by their promissory note,” etc., “promised to pay,” etc., setting out the note as an exhibit, and' then avers the death of one of the makers of the note, and makes his executor a party defendant, by proper averments. The a'ppellants think that there is a “missing link” in the evidence because the appellants did not prove that the executor executed the note, having averred that “Said defendants, by their promissory note,” etc., which averment, they contend, means that the executor executed the note; and, having averred it, they were bound to prove it — the general denial being in. "We see no force in this point. The plaintiff was not bound to prove any more of liis complaint than was necessary to sustain his case. .

Opinion filed at November term, 1879. Petition for a rehearing overruled at May term, 1880.

The only other point made in the brief of appellants is that the amount of the recovery is too large. This was not assigned as a cause for a new trial, and is therefore not presented. The sixth statutory cause for a new trial, namely, that the finding is not sustained by the evidence, the one assigned in this case, does not present any question as to the.amouut of the recovery. That the fiuding should have been for the appellee, is not questioned. See Buskirk Prac. 234, and the following eases: Frank v. Kessler, 30 Ind. 8; Dix v. Akers, 30 Ind. 431; City of Indianapolis v. Parker, 31 Ind. 230; Walpole’s Adm’r v. Carlisle, 32 Ind. 415; Rosenbaum v. McThomas, 34 Ind. 331.

The judgment is affirmed, at the costs of the appellant.

TIowk, J., having been of counsel, was absent.