Carlin v. Martin

16 Ind. 259, 1861 Ind. LEXIS 127

Opinion

Per Curiam.

Martin, who was the plaintiff, sued Carlin, before a justice of the peace, upon a note in writing, in this form:

“ On or before the 20th of February, 1859, I promise to deliver to Robert Martin, at Foblesville, $75, in good lumber, at one dollar and twenty-five cents per hundred. December 10, 1858.” Signed et K. L. Carlin.”

J. W. Evans, for the appellant. E. S. Stone, for the appellee.

Indorsement: “ Paid on the within note $14. January 28, 1859.”

The note was filed as the only cause of action. Before the justice, the plaintiff recovered judgment, from which the defendant appealed. In the Circuit Court a jury'was waived and the cause tried by the Court, who found for the defendant, and having refused a new trial, rendered judgment, &c. This suit having been commenced before a justice, the note, without any averment of extraneous facts connected with the contract, was a sufficient cause of action. 4 Blackf. 174, 420; 6 id. 89, 91, 184. But there is a bill of exceptions which says, that the plaintiff, during the trial, gave in evidence the note with the indorsement, and avers that this u was all the testimony or evidence offered in the case.” This averment must, in view of rule 30 of this Court, be held “ insufficient •to repel the presumption of other evidence.” 4 Ind. 9; Cookerly v. Mitchel, 14 Ind. 471. It follows that the defendant’s motion for a new trial was not available, because it is based upon the insufficiency of the evidence to sustain the finding of the Court, when, for aught that appears in the record, “ all the evidence given in the cause is not before us.”

The judgment is affirmed, with 5 per cent, damages and costs.