Hoskinson v. Cavender

42 N.E. 358, 143 Ind. 1, 1895 Ind. LEXIS 79

• Court: Indiana Supreme Court
• Decided: December 12, 1895
• Docket: No. 17,553
• Status: Published

Opinion

Monks, J.

Appellee brought this action to contest the will of her father, and revoke the probate thereof. The trial resulted in a finding for appellee; and, over a motion for a.new trial, judgment was rendered, setting aside the will and revoking the probate.

Filed December 12, 1895.

Appellant assigns as error that the court erred in overruling the motion for a new trial.

One of the reasons assigned for a new trial was for newly discovered evidence. The affidavits in support of this cause for a new trial are not contained in any bill of exceptions, nor otherwise made a part of the record. This reason for a new trial cannot, therefore, he considered. Applegate v. Baxley, 93 Ind. 147 ; Harper v. State, ex rel., 101 Ind. 109, on page 112.

The other causes for a new trial were, that “the finding is contrary to the evidence,” and also “contrary to the law.” We have carefully read the evidence, and, while we find it conflicting, there is evidence which supports the finding on every material point.

The rule is well settled that this court will not reverse a judgment on the weight of the evidence, although the weight of the evidence might, in our opinion, be against the finding of the trial court. Lawrence v. Van Buskirk, 140 Ind. 481, and cases cited.

Judgment affirmed.