Cole v. Burris

38 Ind. 168

• Court: Indiana Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinion

Downey, J.

This suit originated before a justice of the peace and found its way, by appeal, to the circuit court, where, after a trial by the court, there was a finding and judgment for the plaintiff, the appellee. The defendant, having been refused a new trial, appealed to this court. He has here assigned the following errors : first, that the judgment of the court is not in accordance with law and is not sustained by the evidence; second, that the cause of action is founded on a claim for money due or loaned, viz., eighty-seven dollars, when there is no evidence that the plaintiff ever loaned or paid for the defendant any money, nor is there any evidence that the defendant was due the plaintiff any money, as charged, at the commencement of this suit, and the judgment is contrary to law, and should have been for the defendant ; third, because if the defendant was due the plaintiff anything (which he does not admit), the same was for the debt of another, and the same not being in writing, by the statute of frauds, no action accrued to the plaintiff, and the court ought to have found for the defendant.

Where the overruling of a motion for a new trial is not assigned for error, questions which should be included in such a motion cannot be considered by this court on appeal. The Bellefontaine Railway Co. v. Reed, 33 Ind. 476; Stilwell v. Chappell, 30 Ind. 72; Caldwell v. Asbury, 29 Ind. 451; Herrick v. Bunting, 29 Ind. 467. Other cases to the same effect might be cited, but we deem it unnecessary.

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