49 Ind. App. 672 | Ind. Ct. App. | 1912
This action was brought by appellant against appellees to enforce the specific performance of a parol contract. The only error assigned is that the trial court erred in overruling appellant’s motion for a new trial, in that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The single question of fact in this ease relates to whether there was a valid and enforceable contract between the parties. Appellant admits that the testimony is conflicting, blit asks this coitrt to consider and weigh the evidence, and to render judgment, as may seem right and proper, on the whole case, as provided by §8 of the act approved March 9, 1903 (Acts 1903 p. 338, §698 Burns 1908).
In the case of Parkison v. Thompson (1905), 164 Ind. 609, the provisions of §8 of said act were held not to be mandatory, and that the legislature did not by this act contemplate a trial de novo, which would require the court on appeal to exercise both original and appellate jurisdiction in the same cause.
In the case of Hudelson v. Hudelson (1905), 164 Ind. 694, it was held that the provisions of said section apply only where the evidence on the controlling issue is documentary, by deposition or of such a clear and conclusive character as to enable the court on appeal to say as a matter of law that) the decision is erroneous. Albaugh Bros., etc., Co. v. Lynas (1911), 47 Ind. App. 30.
The record before us does not disclose a case which warrants a departure from the established rule, that this court will not weigh the evidence, and where there is some evidence supporting the judgment, it will not be disturbed on appeal.
Judgment affirmed.