Forgey v. Tucker

11 Ind. 320

• Court: Indiana Supreme Court
• Decided: December 10, 1858
• Status: Published

Opinion

Davison, J.

Forgey brought this action against Tucker, before a justice of the peace, for the recovery of a horse of the value of 100 dollars. The complaint is in the usual form. No answer was filed. Before the justice, there was a judgment against the plaintiff, from which he appealed. Trial in the Common Pleas, which resulted in a verdict for the defendant. New trial refused, and judgment, &e.

The assignments of error assume — 1, That there being no answer to the complaint, there was no issue, and consequently there was a trial without an issue, which has been adjudged erroneous. 2. That the verdict is unsustained by the evidence.

The statute relating to the “mode of proceeding before justices of the peace,” enacts that “ all matter of defense, except the statute of limitations, set-off, and matter in abatement, may be given in evidence without plea.” 2 R. S. p. 455, § 34. As we have seen, this suit was commenced before a justice, and the record shows that no attempt was made by the defendant to set up the statute of limitations, set-off, or matter in abatement; hence, the rule to which we have referred, in its application to the case at bar, avoided the necessity of any written defense. Id. § 67.

In relation to the sufficiency of the evidence to sustain the verdict, the appellee contends that there is no averment in the record that it contains all the evidence. There is a bill of exceptions which, after setting out certain testimony given on the trial, says: “ This is the substance of all the evidence offered on the trial by the parties.” Rule 30 of this Court says: “ In every bill of exceptions, purporting to set out the evidence upon motion for a new trial overruled, the words — ‘this was all the evidence given in the cause’ — are to be regarded as technical, and indispensable to repel the presumption of' other evidence.” The words referred to as contained in the bill of exceptions, it will at once be seen, do not meet the requirement of the rule; hence, we are not allowed to presume that all the evidence given on the trial is before us

(1).

Admitting, however, that the record does contain all the evidence, still the judgment must stand. "We have examined it carefully, and are of opinion that its weight accords with the verdict.

C. D. Murray, for the appellant. N. R. Lindsay and T. J. Harrison, for the appellee.

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

See McCole v. The State, 10 Ind. R. 50, and'cases cited in note; Beard v. The First Presbyterian Church, id. 568.