48 Ind. App. 344 | Ind. Ct. App. | 1911
Action brought by Schmidt Cut Stone Company against Samuel S. Perley, V. P. Fancil, Meyer Gilbert and Abe Barris, partners, and Meyer Gilbert, to recover damages for breaking, mutilating, destroying and carrying away and unlawfully converting to their own use certain personal property belonging to appellee.
The amended complaint is in five paragraphs, the first of which charges all the defendants jointly with unlawfully destroying and converting the property mentioned in the complaint; the second charges appellant with said unlawful acts; the third, charges Y. P. Fancil with said acts; the fourth charges Meyer Gilbert with said acts, and the fifth charges Meyer Gilbert and Abe Barris, doing business under the firm name and style of South Bend Iron and Metal Company, with said unlawful acts. To this complaint appellant
The errors relied on for reversal are that the court erred in overruling appellant’s motions for a venire de novo and for a new trial. The grounds relied on for a new trial are as follows: “(a) The edurt erred in receiving the separate and several verdicts against defendants Perley, Pancil and Gilbert, over the objection then made by the defendant, (b) The court erred in overruling this defendant’s motion to require the jury to return one verdict against all the defendants found liable for the conversion complained of in the complaint, and in discharging the jury without requiring it to return its single verdict against all the defendants found liable.”
In the case of Douglas v. Indianapolis, etc., Traction Co., supra, this court said: ‘‘ The record must disclose the ground upon which it [the motion for a venire de novo] was based and pointed out to the trial court. This it does not do. The action of the trial court in overruling the motion is here for review. There one reason may have been assigned as a basis for the motion, and here another. The presumption is that the trial court correctly ruled upon the question as it was then presented, and the record being silent as to any reason urged in that court as a cause for granting the motion, the question on appeal will be deemed to have been correctly decided by it.”
The record in this case does not disclose the ground upon which this motion was made, and, therefore, under the authorities cited, presents no question for the consideration of this court.
All reasonable presumptions and intendments are indulged, in favor of the general verdict. This being true, this court will, where there are two or more paragraphs of complaint, and nothing to show to the contrary, indulge the presumption that a verdict for the plaintiff is based on that paragraph of complaint to which it is germane. Central Union Tel. Co. v. Fehring (1896), 146 Ind. 189; Shaw v. Barnhart (1861), 17 Ind. 183.
Judment affirmed.