Adams v. Bullock

Indiana Court of Appeals

Adams v. Bullock

59 N.E. 1081, 26 Ind. App. 477, 1901 Ind. App. LEXIS 282

CourtIndiana Court of Appeals

DecidedApril 3, 1901

DocketNo. 3,439

StatusPublished

This text of 59 N.E. 1081 (Adams v. Bullock) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adams v. Bullock, 59 N.E. 1081, 26 Ind. App. 477, 1901 Ind. App. LEXIS 282 (Ind. Ct. App. 1901).

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Opinion

Wiley, J.

Suit by appellee against appellant to recover damages for malicious prosecution. Answer in denial, trial by the court, finding and judgment for appellee. Appellant’s motion for a new trial was overruled.

By his assignment of error appellant seeks to present four questions for decision, to wit: (1) The sufficiency of the amended complaint; (2) the overruling of his motion for a new trial; (3) the action of the court in overruling appellant’s objection to the reading of the deposition of a certain witness; (4) the action of the court in permitting the depo[478]*478sition of the said witness to be read in evidence. These questions will be disposed of in their order.

The only objection urged to the amended complaint is that it was without caption and did not mention the name of the parties. This objection is obviated by a writ of certiorari, which has brought into the record the amended complaint in its entirety, and properly shows the parties plaintiff and defendant. The first, second, and third reasons for a new trial question the sufficiency of the evidence t® support the finding and judgment, and may be considered together.

It is urged that the evidence does not disclose any malice on the part of appellant, and that it does not show probable cause for instituting and prosecuting the action. It is sufficient for us to say that the evidence upon both of these propositions is with the appellee. Appellant commenced a prosecution against appellee for larceny, by filing before a justice of the peace an affidavit charging him with such crime. Appellee was bound over, lodged in jail for a few days before he could secure bond, and was afterwards indicted. Appellant was the prosecuting witness, and the- prosecution resulted in the acquittal and discharge of appellee. Erom the evidence the trial court could have found, and doubtless did find, that the prosecution was without probable cause; that it was malicious, and that the appellant did not disclose all the facts within his knowledge when he advised with the prosecuting attorney in regard to commencing the prosecution. In our judgment, the evidence abundantly sustains the finding and judgment.

The fourth reason for a new trial, which was that the damages were excessive, is not discussed by appellant, and is therefore waived.

The fourth and fifth specifications of the assignment of errors may be considered together. They are, that the court erred in overruling appellant’s objection to the reading of the deposition of one Clara Weaver, and in permitting such [479]*479deposition to be read in evidence. The questions which appellant thus seeks to present cannot be raised by an assignment of error. If the court erred in its action in these matters, it was error occurring upon the trial, and to have such action reviewed on appeal, such errors should have been assigned as reasons for a new trial. They can not for the first time be presented by an assignment of error in this court.

Judgment affirmed.

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Wiley, J.

Suit by appellee against appellant to recover damages for malicious prosecution. Answer in denial, trial by the court, finding and judgment for appellee. Appellant’s motion for a new trial was overruled.

By his assignment of error appellant seeks to present four questions for decision, to wit: (1) The sufficiency of the amended complaint; (2) the overruling of his motion for a new trial; (3) the action of the court in overruling appellant’s objection to the reading of the deposition of a certain witness; (4) the action of the court in permitting the depo[478]*478sition of the said witness to be read in evidence. These questions will be disposed of in their order.

The only objection urged to the amended complaint is that it was without caption and did not mention the name of the parties. This objection is obviated by a writ of certiorari, which has brought into the record the amended complaint in its entirety, and properly shows the parties plaintiff and defendant. The first, second, and third reasons for a new trial question the sufficiency of the evidence t® support the finding and judgment, and may be considered together.

It is urged that the evidence does not disclose any malice on the part of appellant, and that it does not show probable cause for instituting and prosecuting the action. It is sufficient for us to say that the evidence upon both of these propositions is with the appellee. Appellant commenced a prosecution against appellee for larceny, by filing before a justice of the peace an affidavit charging him with such crime. Appellee was bound over, lodged in jail for a few days before he could secure bond, and was afterwards indicted. Appellant was the prosecuting witness, and the- prosecution resulted in the acquittal and discharge of appellee. Erom the evidence the trial court could have found, and doubtless did find, that the prosecution was without probable cause; that it was malicious, and that the appellant did not disclose all the facts within his knowledge when he advised with the prosecuting attorney in regard to commencing the prosecution. In our judgment, the evidence abundantly sustains the finding and judgment.

The fourth reason for a new trial, which was that the damages were excessive, is not discussed by appellant, and is therefore waived.

The fourth and fifth specifications of the assignment of errors may be considered together. They are, that the court erred in overruling appellant’s objection to the reading of the deposition of one Clara Weaver, and in permitting such [479]*479deposition to be read in evidence. The questions which appellant thus seeks to present cannot be raised by an assignment of error. If the court erred in its action in these matters, it was error occurring upon the trial, and to have such action reviewed on appeal, such errors should have been assigned as reasons for a new trial. They can not for the first time be presented by an assignment of error in this court.

Judgment affirmed.

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Bluebook (online)

59 N.E. 1081, 26 Ind. App. 477, 1901 Ind. App. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-bullock-indctapp-1901.