114 Ind. 451 | Ind. | 1888
This was a suit by appellant, Kernodle, as plaintiff, against appellee, Gibson, and one John McLean, as defendants. Plaintiff’s complaint counted upon a promissory note for $1,000, alleged to have been executed by the defendants on the 12th day of February, 1871, to the plaintiff herein, and to have been payable ten months after the date thereof, with ten per cent, interest thereon from date, and with reasonable attorneys’ fees if suit should be brought thereon. It was averred in the complaint, among other things, that the note in suit was “ so mutilated and partially lost as to be impossible of copy.” Defendant Gibson alone appeared, and separately answered in four paragraphs, of which the first three stated special defences, and the fourth paragraph was a general denial of the complaint. Plaintiff replied by a general denial of the special defences. The issues joined were tried by a jury, and a verdict was returned for defendant ,• and over plaintiff’s motion for a new trial, the court adjudged that he take.nothing' by his suit herein, and that defendant recover his costs, etc.
The evidence is not in the record, and it does not appear that plaintiff attempted even to make the evidence a part of the record. In the absence of the evidence, we can not reverse the judgment for the alleged error of the court below in overruling plaintiff’s motion for a new trial. For, even if it seemed to us that some of the matters complained of here by plaintiff’s counsel might possibly be erroneous, the record wholly fails to show, in the absence of the evidence, that the error, if any, could or did injure the plaintiff. It is not enough that the record may show possible error in the rulings or proceedings of the trial court; but it roust also appear from the record that such error might, and probably did, injure the plaintiff.
Plaintiff’s suit, as we have seen, was upon a promissory note alleged to have been “ so mutilated arfd partially lost as to be impossible of copy.” The issues in the case did not require proof of the execution of such note by the defendants ; but it was incumbent on plaintiff, under the general denial of his complaint, to prove that such a note had existed as the one described in his complaint, and the destruction or loss of such note and the contents thereof. Millikan v. State, ex rel., 70 Ind. 310.
Wo can not say from the record of this cause, in the ab
We have found no error in the record of this cause.
The judgment is affirmed, with-costs.