Morgan v. Hyatt

62 Ind. 560 | Ind. | 1878

Biddle, J.

Complaint by the appellees, on two promissory notes, alleged to have been made by the appellant, payable to William E. Dant, assigned by Dant to Henry Sehooley, and by Schooley to the appellees. The notes were secured by a mortgage on real estate. Prayer for judgment on the notes, and foreclosure of the mortgage.

Answer, trial by the court, finding and judgment for appellees.

In his motion for a new trial, the appellant assigned two causes:

1. That the decision is not sustained by the evidence, and is contrary to law;

2. Admitting the testimony of Nancy Dant, wife of the assignor of the notes and mortgage.

During the trial, after the jury were sworn and evidence had been introduced, the court allowed the appellees to amend the complaint, whereupon the appellant moved for a continuance, which was denied. The appellant excepted, and in this court vigorously attacks these rulings; but he did not assign either of them as a cause for a new trial; they are, therefore, not before us. If the amendment had been made before trial, it would have been clearly proper.

Nancy Dant, the wife of the assignor, was properly admitted to testify. Neither she nor her husband was apa.ty to the suit, nor was his assignment put in issue, nor did she testify to anything relative to the assignment. The case of Stanley v. Stanton, 36 Ind. 445, is in point, and the following authorities support the same principle: Gee v. Lewis, 20 Ind. 149: Palmer v. Henderson, 20 Ind. 297; Meni v. Rathbone, 21 Ind. 454; Bennifield v. Hypres, 38 Ind. 498; Woodward v. Lindley, 43 Ind. 333; McConnell v. Martin, 52 Ind. 434; Sutherland v. Hankins, 56 Ind. 343.

There is no absent link in the chain of evidence, and it is sufficiently strong to sustain the finding; nor is the finding against the law; indeed, these are points virtually waived by the appellant in his brief.

The judgment is affirmed, at the appellant’s costs.