22 Ind. App. 186 | Ind. Ct. App. | 1899
— This action was commenced by appellant filing his claim in the office of the clerk of the circuit court of Marion county against the estate of John "W. Axtell, of which estate the appellee, John L. Moore, was the administrator. The claim was based upon the following state of facts: Appellant had a first mortgage of $2,000, and the decedent, John W". Axtell, had a second mortgage of $500, on forty acres of land in Miami county, Ohio, which was owned by the wife of Samuel P. Axtell, a brother of the decedent. It is averred in the complaint that appellee’s decedent agreed, in consideration that the time of payment of the first mortgage should be extended, that he would pay the same. In the meantime, John W. Axtell died, and his daughter, who' was his only heir, notified appellant that she would not pay the mortgage held by him upon said land, and that he must
This court will not weigh the evidence. It is also contended that the court erred in admitting certain evidence offered by appellee on the trial. It is doubtful if this evidence has been sufficiently identified in the motion for a new trial to save the question in this court. Waiving this objection, we are of the opinion that this evidence was immaterial. Also, that appellant has waived his right to object thereto by himself introducing the same kind of evidence in chief. See Gaff v. Greer, 88 Ind. 122; Lowe v. Ryan, 94 Ind. 450; Hin
Wiley, J., absent.