Miles v. Miller & Sons

147 N.E. 281, 82 Ind. App. 665, 1925 Ind. App. LEXIS 267

Opinion

Enloe, J.

Action by appellee against appellant upon a promissory note. A trial by the court resulted in a judgment in favor of appellee. The errors assigned on appeal are: overruling appellant’s motion for a continuance, and overruling his motion for a new trial.

As to the first alleged error, no question is presented for the following reasons, viz.: the failure of appellant to set out said motion in his brief filed herein, and second, because it is now the settled law of this State that such a ruling cannot be made the basis of an independent assignment of error, but, to be available, it must be assigned as a cause for a new trial, in a motion in that behalf. Yazel v. State (1908), 170 Ind. 585, and authorities cited.

The second assigned error involves a consideration of the evidence.

The note which was the foundation of this action was executed in 1911, and indorsed thereon was a credit of $25, as having been paid thereon February 19, 1919. The president of appellee company testified that this payment, which was by check of appellant, was made by appellant as a partial payment on this note; this, the appellant denied. The issue thus raised was one of fact for the trial court; its decision on all issues raised by the pleadings we cannot, upon this record, disturb. The appellant has presented no error.

Affirmed.