142 Ind. 632 | Ind. | 1895
Appellee instituted this action against appellant, to recover a money judgment, and to enforce a vendor’s lien against the real estate described in the complaint.
A trial, by jury, resulted in a verdict in favor of appellee, and over appellant’s motion for a new trial judgment was rendered for the amount assessed by the jury, and for a foreclosure of the lien in question.
The first contention of appellant’s learned counsel is, that there was error in the trial court, allowing one John Ingles, a witness in behalf of appellee, to testify relative to certain statements made by appellant in a former examination. This question is not clearly pre
It further appears that the witness, after refreshing his memory by his shorthand notes made by him upon the aforesaid occasion, read therefrom to the jury certain parts of appellant’s examination, bearing upon the question involved. The witness stated that after refreshing his memory by these notes he remembered, independently thereof, that the statements which he had read to the jury were those made by the appellant upon said examination. There is no contention that these statements as given to the jury by this witness were not correct.
Under the facts, as far as they are disclosed to us by the record, the court did not err in permitting this witness to thus testify. Sage v. State, 127 Ind. 15 ; Bass v. State, 136 Ind. 165.
But appellant’s counsel urge and say “That this examination bore the signatux-e of appellant, and was •taken under the statute, and if appellee desired to use it
The next alleged error of which appellant complains is that of the court ixx admitting the depositions of Catherine Earley and W. S. Young,, for the reason, as insisted, that these depositions embraced evidence in chief only. The cause was to put at issue by a denial, and plea of payment, and the depositions’ in controversy seem to contain evidence, which at least tends to rebut that of appellant given under his plea of payment, and therefore they were proper to be read to the jury in rebuttal. But if it were conceded that these depositions were wholly in chief, it however was within the discre
Appellant’s next and last contention is that his motion for a new trial should have been sustained upon the ground of newly discovered evidence.
In support of this cause for a new trial, appellant filed affidavits, but these have not been brought into the record by an order of court or bill of exceptions.
This was necessary in order to present any question to this court, upon an appeal, relative to the newly discovered evidence. Harper v. State, ex rel., 101 Ind. 109.
There is no apparent available error, and the judgment is therefore affirmed.