Cosgrove v. Garrett

50 Ind. 221

• Court: Indiana Supreme Court
• Decided: May 15, 1875
• Status: Published

Opinion

Downey, J.

This was an action by the appellees against William Cosgrove, Lydia A. Cosgrove, his wife, and Virgil M. Chaplin. The object of the action was to foreclose a mortgage executed by Cosgrove and wife to the plaintiffs, on the separate real estate of the wife, to indemnify the plaintiffs against the payment of certain debts of Cosgrove on which they were his sureties, and which they, or one of them, had paid. Chaplin was made a defendant, because he held a junior mortgage.

Cosgrove and wife answered separately, by general denial, and alleging payment of or upon the indebtedness. There was a reply in denial.

The trial was by the court, and there was a finding for the plaintiffs that there was due from Cosgrove to the plaintiffs four thousand three hundred and eleven dollars and ninety-three cents; that the same was secured by said mortgage, and that Chaplin held a junior mortgage.

Cosgrove and wife jointly moved for a new trial, for the • reasons following:

1. The finding of the court is contrary to the evidence.

2. It was contrary to law and the evidence.

3. The finding is in excess of the amount due the plaintiffs; and,

4. The court erred in'assessing the amount of recovery.

This motion was overruled, and judgment rendered for the plaintiffs.

Appeal by Lydia A. Cosgrove alone, the other parties declining to join.

The error assigned is the overruling of the motion for a new trial. The case is before us upon the evidence, and the most that can be said of it in favor of the appellant is, that it is conflicting. In such cases, this court does not interfere with the judgment below.

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

Petition for a rehearing overruled.