Lawrence v. Van Buskirk

40 N.E. 54, 140 Ind. 481, 1895 Ind. LEXIS 51

• Court: Indiana Supreme Court
• Decided: March 19, 1895
• Docket: No. 16,945
• Status: Published

Opinion

Monks, J.

— Appellants brought this action against appellees, Van Buskirk and Wood, to recover damages for the alleged wrongful conversion of 3,147 bushels of wheat, the property of appellants.

Appellee Van Buskirk filed an answer in three paragraphs, to the second paragraph of which appellants filed a demurrer, which was overruled and exception reserved. A reply being filed, the cause was tried by a jury, and a verdict returned in favor of appellants against Wood, and in favor of Van Buskirk against appellants.

Appellants filed a motion for a new trial, which was overruled and judgment rendered on the verdict.

The errors assigned call in question:

First. The action of the court in overruling the demurrer to the second paragraph of the answer of Van Buskirk.

Second. Overruling the motion for a new trial.

Appellants have waived the first error assigned by failing to discuss the same. Dowell v. Talbot Paving Co., 138 Ind. 675; Hughes v. Hughes, 139 Ind. 474.

All the causes assigned for a new trial except the first and fourth are waived for the same reason.

The fourth cause assigned for a new trial was that "The court erred in giving instructions 1, 2, 3 and 4, asked by the defendant.”

To render this available as cause for a new trial, all the instructions named must be incorrect. Under this assignment, appellant assails the third instruction, and urges that the second and fourth are open to the same objection. It is not claimed by appellants in their brief that there was any error in giving the first instruction named. No objection is made to the same, and we can see none.,

For this reason the motion for a new trial for this cause must fail. Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385, and authorities there cited; Cargar v. Fee, 140 Ind. 572; Indiana, etc., R. W. Co. v. Snyder, 140 Ind. 746.

Filed March 19, 1895

The remaining cause assigned for a new trial was that “The verdict of the jury was not sustained by sufficient evidence.”

Although the evidence is conflicting, yet there is evidence which supports the verdict on every material point. The rule is firmly settled that if there is any evidence to sustain the verdict, this court will not reverse the case on the weight of the evidence. The reasons for this rule of practice are so familiar that it is not necessary to repeat them. Cleveland, etc., R. W. Co. v. Wynant, 134 Ind. 681, and authorities cited on pp. 683, 684.

There is no available error in the record.

Judgment affirmed.