Shirk v. Cartright

29 Ind. 406 | Ind. | 1868

Gregory, C. J.

This was ah action by Shirk against Cartright for the recovery of real property, and to correct a mistake in the description thereof in the will of David, Shirk, deceased. The case was tried in the court below upon an issue made by the general denial.’

On the trial, the plaintiff’ offered proof tending to show the mistake, and that the legatee had advanced money to the testator in his lifetime for the purpose of creating a fund to equalize the heirs at law in the disposition of the testator’s estate. The evidence offered was ruled, out, and a bill of exceptions makes it a part of the record.

A motion was made by the plaintiff’ for a new trial, after a finding by the court against him, for the following causes: 1. That the decision of the court is not sustained by sufficient evidence. 2. That the decision of the court is contrary to law.

The evidence is not made a part of the record. The question attempted to be raised is not before tbe court. If tbe court erred in ruling out the offered evidence, it was an error of law occurring at the trial, and is embraced in the eighth specification of causes for which a new trial may be granted. 2 G. & H., § 852, p. 214. The causes assigned in 'the plaintiff’s motion for a new trial are embraced in the sixth specification. The reasons for a new trial must, with reasonable certainty,- apprise the court and the opposite party of the ground upon which it is asked. Barnard, v. Graham,, 14 Ind. 322; Dawson v. Coffman et al., 28 Ind. 220.

J. Ristine, D. W. Voorhees, J. J. Key and J. M. Hanna, for appellant. T. N. Rice and JD. H. Maxwell, for appellee.

The judgment is affirmed, with costs.